ree ee A, Merry i ara aie ey eae settee te’ aD RGR Ad oH Porta ail 2 ie Pah gt aes a oh ar als eg i Ao 975 Cornell ss” Library KEO 192.T24 1875 Commentaries COMMENTARIES ON EQUITY JURISPRUDENCE. FOUNDED ON STORY. BY THOMAS WARDLAW TAYLOR, M.A, MASTER IN CHANCERY. TORONTO: WILLING & WILLIAMSON. 1875. LAauis | Entered according to the Act of the Par- | Mament of the Dominion of Canada, in the your 0 one thousand eight hundred and seven’ ve, by THOMAS WARDLAW TAYLOR, M.A., the Office of the Minister of Agriculture: HUNTER, ROSE AND CO., PRINTERS AND BINDERS, TORONTO. PREFACE. WHEN this work was commenced more than three years ago, the intention was to prepare an edition of “ Story’s Equity Jurisprudence,” adapted to the system of equity administered in this Province, and to publish it as such. After some progress had been made in preparing such an edition, the necessary omissions, additions and alterations were found to be so great that the original intention had to be aban- doned. While the work, as now presented to the public, is in greater part that of the eminent American jurist, whole sec- tions being copied from his commentaries, and is indebted to him for whatever of value it contains, it would have been un- just to his memory to put it forth as his. In the preparation of the work the statutory provisions in force in this Province, and especially the changes introduced by recent legislation in Ontario have been carefully kept in view; the leading Canadian cases and other more recent English ones have been cited in support of the various topics treated of ; and it is believed the student will find in its pages all that is of importance in Story, or necessary for acquiring a practical knowledge of equity as administered in this Pro- vince. Oscoope Hatt, March, 1875. CONTENTS. Inpex To Casus CITED. 2. 7. Dw, ge CHAPTER I. ; Section The Nature and Character of Equity Jurisprudence . . . 1-18 CHAPTER II. The Origin and History of Equity Jurisprudence. . . . 19-28 CHAPTER III. General View of Equity Jurisprudence . . . . . . . 29-55 CHAPTER IV. Momnlenn ay. Bo har oe a A BLE 56-86 CHAPTER V. Miastake) «core! uta Ge CaP Gorey oe. oom ce: a @) GA 87-132 CHAPTER VI. Atteal Prd, 2 2 4 2 4 be ee eS we ee we TBS CHAPTER VII. Constructive Fraud 184-322 CHAPTER VIII. Account 323-388 vi CONTENTS. CHAPTER IX. Administration . CHAPTER X. Marshalling of Securities . CHAPTER XI. Legacies CHAPTER XII. Confusion of Boundaries. . . . , CHAPTER XIII. Dower . CHAPTER XIV. Partition . CHAPTER XV. Matters of Rent . CHAPTER XVI. Partnership . CHAPTER XVII. Cancellation and Delivery of Instruments CHAPTER XVIII. Specific Performance of Agreements and other Duties CHAPTER XIX. Compensation and Damages . CHAPTER XX. Interpleader . Section 389-428 429-434 435-449 450-460 461-473 474-480 481-488 489-516 517-531 534-599 600-609 610-619 CONTENTS. CHAPTER XXI. Bills Quia Timet CHAPTER XXII. Bills of Peace CHAPTER XXIII. Injunctions CHAPTER XXIV. Trusts . CHAPTER XXV. Charities . CHAPTER XXVI. Marriage Settlements . CHAPTER XXVII. Terms for Years CHAPTER XXVIII. Mortgages CHAPTER XXIX. Assignments . CHAPTER XXX. Wills and Testaments . CHAPTER XXXI. Election CHAPTER XXXII. Satisfaction Section 620-641 642-649 650-736 737-762 763-782 783-797 798-806 807-85 4 855-880 881-931 932-957 958-990 viii GONTENTS. CHAPTER XXXIII. Conversion CHAPTER XXXIV. Application of Purchase-money . CHAPTER XXXV. Implied Trusts CHAPTER XXXVI. Penalties and Forfeitures . CHAPTER XXXVII. Infants CHAPTER XXXVIII. Idiots and Lunatics CHAPTER XXXIX. Married Women CHAPTER XL. Awards CHAPTER XLI. Writ of Arrest . CHAPTER XLII. Bills of Discovery CHAPTER XLIII. Bills to perpetuate Testimony . CHAPTER XLIV. Estoppels in Equity INDEX Section 991-1001 - 1002-1011 . 1012-1083 . 1084-1110 . 1111-1136 . 1137-1146 . 1147-1197 . 1198-1214 - 1215-1223 . 1224-1238 . 1239-1442 . 1243-1257 - pp. 517-563 x INDEX TO CASES CITED. THE REFERENCES ARE TO THE SECTIONS. A. Section Abbott v. Middleton 926, 927 v. Strattan 826 ». Sworder 149, 174 Abell v. McPherson 690 Aberdeen R. Co. v. Blaikie 240, 243 Abernethy v. Hutchinson. 701 Abraham v. Bubb 675, 677 Ackroyd v. Smithson 997 Ackworth v. Ackworth 972 Acton v, Blundell 690 v. Pearce 831] v. Woodgate 743, 856, 857, 873, 875 Adair v. Shaw 390, 421, 1050, 1051, 1077 Adams v Claxton 871, 872, 1062 v. Clifton 1065 v. McCall 274 v. Robarts ~ 439 v. Sworder 227, 240, 243 Adamson v, Armitage 1175 Adderly v. Dixon 547, 549, 557, 603 Addis v. Campbell 163 v. Knight 340 Adley v. The Whitstable Co. 49, 379 Adlington v, Cann 214 Adnam v. Cole 767, 981 Adney v. Field 74, 76 Adye v. Feuilleteau 1064 Agar v. Macklew 495, 1209 Agassiz v. Squire 180 Agra Bank v. Barry 315 Aguilar v. Aguilar 1181, 1182 Aikins v. Blain 612 v. Piper 711 Ainslie v. Medlicott 108, 141 Ainsworth v, Walmsley 708 Aldborough, Earl of, v. Frye 258, 262 Alderson, ex parte 872, 876 Aldrich v. Cooper 408, 431 v. Thompson 612, 618 Aldridge v. Walscourt 403 v. Westbrook 393 Alexander v. Braine Aleyn v. Belcher Algar v, Murrell 772 180 Section Allan v. Backhouse 358, 902 v. Bower : 573 v. Scott 1071 v. Thorne 110 Allen v. Anthony 313 v. Bonnet . 281 ». Coster 1128 v. Edin. Life Ass. Co. 470 v. Hearn 211 v. McPherson 885 v. Walker 1173 v. Webster 908 Allen, re 309 Alley v. Deschamps 534, 585 Alleyn v. Alleyn 986 Allfrey v Allfrey 235, 243 Allsopp v. Wheatcroft 205 Alnete v, Bettam 615 Alsager v. Rowley 421 Alt v. Alt 574, 781 Alvanley v. Kinnaird 105, 106 Alven v. Bond 243 Ames v. Birkenhead Dock Trustees 627 663 Amler v. Amler 992 Ambrose v. Dunmow Union 662 Amesbury v. Brown 355, 359 Amsinck v. Barklay 1221 Anderson v. Abbott 939, 957 v. Anderson 492, 499 v. Dawson 74, 76 v. Dougall 772 v, Fitzgerald 134 v. Kilborn 772 v. Pignet 464 v. Radcliffe 880 Andrew v. Clarke = 1025 ». Wrigley 301, 419, 420, 830 Andrews v. Trinity Hall 949 ill, re 913 Angel v. Smith 625, 627, 628, 663 Angell v. Angell 1240 ». Hadden 613, 615 Annesley v. Rookes 657 Anon 82, 374, 383, 390, 393, 399, 436, 438, 490, 501, 531, 543, 563, 627, 637, 718, 831, 836, 1070, 1114, 1117, 1209, 653 1216, 1219, 1222, 1235 x INDEX TO CASES CITED. Antrobus v. Davidson 249, 641/Atty.-Gen. v. Blizard 764 Aplyn v. Brewer 1072 v. Boucherett 95. Apperly v. Page 504) v. Boultbee 777 Appleby v. Dodd _ 847 ». Bovill 764 Appleton v. Rowley 1178 v. Bowyer 779 Apreece v. Apreece 441 v, Brandreth 764 Arbuthnot v. Norton 867 v. Brereton 765 Arcedeckne v. Kelk 687 v. Bright 913 Archer v. Hudson 221, 235, 236 ». Burdett 779 v. Moss 133 v. Caius College 782 Ardesoife v. Bennett 936, 955, 957 , v. Chester, Bishop of 774 Argles v. Heaseman ‘ 348) v. Christ’s Hospital 780 Arkwright v. Gell 690 v. Clarendon 240 Armitage v, Wadsworth 56 v. Clarke 764. | Armstrong v. Toler 380 v. Colney Hatch L, Asylum Arnold v. Allinor 33 688 v. Bainbrigge 391 ». Comber 764 » Chapman 772 v. Coopers’ Co. 1082 ». Kemstead 94.4, ». Cornthwaite 393 v. Woodhams 750, 1177 v, Corporation of Bever- Arran v, Amabel 110 ley 780, 782 Arrowsmith v. Hill 663 v. Corporation of Cashel 243. Arrowsmith, re 440 », Corporation of Exeter 764 Arthington v. Fawkes 645}. ». Corporation of Leeds 688 Arundel v, Phipps 267, 558, 554, 653, v. Coventry, Mayor of 486 , : 792, 1163 v. Davis 773 v. Trevillian 186 v. Day. 566, 568, 571 Ashbough v. Ashbough 1128 v. Dean of Windsor 782 Ashburner v. Maguire 441 v. Diamond 422 Ashburnham v. Ashburnham - 956 . » Doughty 753, 922 Ashby v. Palmer 999, 1091 v. Earl of Lonsdale 764 Ashhurst v. Mill 112 v. Fishmongers’ Co’y. 769 Ashton v. Blackshaw 1173 v. Flint 300 ~ a. M’Dougall 191 v. Forbes 681, 684 Ashham v. Barker 180 v. Fullerton 457 Asiatic Banking Co. ex parte 877 v. Garbutt 123 Astle v, Wright 490 v. Gee 688 Astley ». Weldon 1095, 1102 v. George 977 | Aston v, Aston 677 v. Goulding 778 v. Heron 663 v. Great Northern R. R. Co. v. Lord Exeter 51, 557 683 » Pye 532 ». Green "77 v. Wood 758, 1014 v. Haberdashers’ Co. 767, Atcheson v, Mallon 206 782 Athenzeum Life Ins. Co. », Pooley 671, v. Halling 738 877 v. Hamilton 479 Atherfold v. Beard 211 v. Harley 772, 979 Atkins v. Farr 192 ». Heartwell 773 v. Hatton 457 v. Herrick 782 v Hill ~ 435 v. Hickman 922 ‘Atkinson v. Elliot 337 v, Hodgson 440, 773, v. Leonard 48, 58, 59, 1218, v. Ironmongers’ Co. TTT 1221 ». Jackson 1199, 1206 v. Webb 960, 985 v, Jesus College 782 Atkyns v. Wright 918 ». Kirk 720 Aitty.-Gen. v. Arnold 782| v. Landaff, Bishop of, 777 v. Baxter 769 v. London, City of, 765, 777 ». Birmingham 685) v, Lord Weymouth 772 INDEX TO CASES CITED. Atty.-Gen. ». Margaret, &c,. Prof. 764 v. Marlborough 678 v. Matthews 764 ». Mayor of Bristol 782 2 McLaughlin 672, 691 ». McNulty 37 v. Metropolitan Board. of Works 683 v. Mid Kent, &, R. R. Co. 683 v. Minshull 782 ». Morgan 526 v. Munby 774 ». Murray 396 v. Nash 773) »v. Newcombe 765 v. Nichol 685, 686, 687 v. Oglander 777 v. Oxford, Bishop of, we . Parsons 773, a 4 Parker 765 Parnther . 165 Phillpot 773 Power 769 . Price 764 Pyle 436 . Richmond 688 Ruper 765 Austen v. Boys Austin v. Taylor Austria, Emperor of, Averall », Wade v % ». » v. v v. » % v. Rye FT », Silthorp 74 v. Sitwell 254,566 ». Sothen 167 ». South Molton 782 v, Sparks 782 v. Stephens 467, 459, 753 v. Stepney 765 v. Syderfin 776 ». Tancred 764 », Todd 769 ». Tomkins 772 v. Toronto St. R. Co 683 v. Trinity College 782 v. Turner 885, 887 ». Vint 764 ». Vivian 765 v. Wansay 777 ». Weston Plank Rd. Co.683 v. Whitchurch 773 v. Whorwood 764, 1187 v. Wilkins 36, 300, 303 ». Wilkinson ' 764 ». Williams 37 Atty.-Gen. of Jamaica v. Manderson 342 Atwood v. Merewether 147 v. Small 139, 140, 143 Aubin v. Daly 913) 1213 Auriol v, Smith xi 713 745, 747 v. Day 651, 710 '350, 353, 365, "374, 434, 1032 Avery v Langford 205 Aylesford, Earl of, case 572 Ayliffe v. Murray 237, 238 Aylward ». Kearney 235 Aynsley v. Wordsworth | 352 Aynsly v. Reed 831 Ayre’s case 657 B. Babin’s Invest. ve 856 Back v. Stacy 687 Backwell’s Case 391 Bacon v. Cosby 939 v. Jones 696, 728 Bhaskar ». Parker 5OL Bailey v. Devereux 663 ». Edwards 249, 251, 372 ». Hobson 475, 679 » Watkins 240 Baillie v. Baillie 660 ». Butterfield 977, 981 Bainbridge v. Smith y 6, 73: Bainbrigge v. Blair 937 Baines v. Dixon 902 Baker v. Bayley 795 v. Bradley 221, 222, 223 ». Carter 240, 243 v. Dawbarn 473, 1046 v. Mellish 666 v. Monk 258 v. Newton 1177 ». White * 192 ex parte 1140 Bald v. Thompson 832 Baldwin v. Baldwin 359, 773 v. Belcher 429 v, Crawford 626 © ». Duignan 309 ' ». Rochfort 256 ». Thomas 238 Balfour v. Welland 1007 Ball v. Ball 1117, 1118 v. Coggs 540 v. Coutts 1133 v. Harris 829, 904, 1004, 1007 v, Mannin 165 », Montgomery 191 v, Stone 111 v. Vardy 919 Ballet v. Sprainger 357 Balmain v. Shore 1023 Banbury v. Briscoe 530 xii Bank of Australia v. Harris 273 Brit. North Am. v. Heaton 627 ». Mallory 374, 400, 418, 660 v. Rattenbury 269 Hindustan, re 1041 Ireland v. Beresford 667 Montreal v. Baker 264, 311 : v. McFaul 251, 372 v. McWhirter 274 Scotland v. Christie 342, 343 Toronto v. Eccles 855 v. McDougall 273 Upper Canada v. Shickluna 268 v, Wallace 838 Bankart v. Houghton 1248 ». Tennant 1245 Banks v. Banks 938 : » Gibson 711 », Sutton 464, Barclay v. Maskelyn 764 v. Wainwright 979) Bardswell v. Bardswell 916, 917 Barfield v. Nicholson 725 Bargate v, Shortridge 657 Bargent v. Thompson 1095 Baring v. Nash 475 v. Noble 509 Barker v. Dacie 382 v, Eccles 839 v. Goodair 496, 512 v. Harrison 148, 231 ». Hill 74 v. Hodgson 1090) ». Ray 133 Barling v. Bishop 269, Barlow v. Grant 1128 Barnard v, Bagshaw 1069 v. Hunter 227 v. Willis 734 Barnard’s Case 677 Barnardiston v, Lingood 258 Barnes v. Grant 916 ». Patch 905 v. Racster 434 Barnsley v. Powell 183, 179, 225 Barnett v. Lenchars 709 / ». Sheffield 877 Barnewell v. Lord Cawdor 401 Barney v. Beak 263 Barnhart v. Patterson 111 Barr v. Hatch 537 Barrett v. Beckford 987 v. Blagrave 596 v. Hartley 257 v. Ring 588 Barreti’s Case 139 INDEX TO CASES CITED. (Barrington v. Tristram 443 Barrow v. Barrow 112, 285, 943, 957 ». Greenough 181, 590 Barry v. Croskey 139 v, Stevens 330 Bartlett v. Gillard 977 v, Pickersgill 1018 v. Salmon 146, 150 v. Wells 170 Barton v. Barton 194, 202 ». Hassard 243 v. Vanheythusen 264, 269 Barwick v. English Joint Stock Bank 155 Bass v. Dawber 708 Bassett v. Nosworthy 37 Batard v. Hawes 367 Bate v. Hooper 1065, 1244 v. Scales 1078 Bateman v. Boynton 132 v. Ross 1197 v. Willoe 654 Bates v. Graves 886 v. Hewitt: 151 v. Johnson 301, 304 Bates and Henckil, ex parte 114 Bath, Earl of, ». Sherwin 30, 34, 649 and Montague’s Case 138 Bathurst, Earl, v. Burden 687 Bathurst v. Murray 1133 Batten v. Earnley 437, 438, 638 Battersbey v. Smith 213 Battine, ex parte 868 Batty v. Chester 31, 213 Baugh v. Price 258 Banman v, Matthews 604 Baxendale »v. Seale 106 Baxter v. Conolly 537 v. Earl of Portsmouth 160, 161 v, West 500 Bayley v. Edwards 451 v. Powell 1025 v. Quinn 981 v. Tyrrell 879 v. Williams 167, 218 Beaden v. King 243 Beale v. Billing 222 Beard v. Beard 1169 , ». Travers 1132 Beasley v. Darcy 338 _ v. Magrath 167, 235, 236 Beatie ». Johnson 1114 Beatson v. Beatson 537 Beaty v. Gooderham 854 Beauclerk v. Mead Beauchamp v. Huntley, Marquis of 664 993 Beaufort, Duke of, ». Berty 1112, 1115, 1118 INDEX TO GASES CITED. Beaufort, Duke of, v. Neeld 103) Beaumont v. Boultbee 157, 383 v. Bramley 112, 113, 131 v. Fell 126 v. Reeve 212 v. Squire 195 Beavan v. Habgood 244 Beck v. Burn 439 v. Kantorowiez 147, 232, 504 v. Moffatt 832 Becker v. Hammond : 471 Beckett v. Cordley 38, 285, 289, 293 Beckford v. Kemble 664 v. Tobin 444 », Wade 35 Beckley v. Newland 189, 262 Bective v. Hodgson 997 Belchier and Parsons, ex parte 1062 Belhaven’s Case 93 Belfour v. Weston 80 Bell v. Gardiner 99 v. London & North-western Rail- way 872). ». Manning 251 v. Miller 1212, 1213 ». Nevin 51] ». Phyn 928, 1023 ». Wilson 381 Bellamy v. Burrow 212 ». Sabine 96, 132, 228, 317 Bellasis Trust, re 784 v Uthwatt 961, 978 Bellew v. Russell 227 Benbow v. Townsend 742, 1020 Bending v. Bending 945, 946 Bengough'v. Walker 972, 973) Benn v. Dixon 438 Bennet v. Bachelor 436, 1025 v. Davis 1173 v. Mayhew 1027, 1028 v. Whitehead 380 ex parte 238, 240, 241, 243 Bennett v. Aburrow 901 ». Bennett 478 ». Forman 818 v. Lytton 1011 Bennett’s Will 440 Benson v. Baldwin 66, 481 ». Benson 999 v. Gibson 1095 v. Heathorn 231, 243 ». Whittam 918 Bensusan v. Nehemias 983 Bent v. Young 427 Bentley v. Craven 148, 231 v. MacKay 97, 111, 113, a Benwell v. Inns 205 Benyon v: Benyon ». Nettlefold Berdoe v. Dawson Bermingham v. Sheridan Bermon v. Woodbridge Bernal v. Donegal Bernard v. Jarvis ». Minshull v. Walker Berney v. Pitt ». Sewell Berresford v. Driver Berrisford v. Done ». Milward Berry v. Oolumbia Ins. Co. v. Usher re, Bertie v. Falkland v. Lord Abingdon Besch v. Frolich Best v. Stamford Betts v. Gallais v. Neilson Bevan v. Earl of Oxford Bevis v. Boulton Beverley v. Beverley Beverley’s Case Bickley v. Dorrington Bidwell’s Settlement, re Biederman v. Seymour Biehn v. Biehn Biggs v. Andrews Bigland v. Huddlestone Bilbie v. Lumley Bill v. Cureton v, Kinaston v. Price xiii 978 213, 524 222 550 346 258, 262 480 919 821 255 632 553 80 289 336 997 1146 197, 1097 359, 633 501 803 606 606 294. 607 188 162, 1137 421 941 401 607 997 939, 942 1049 265, 294, 297 438, 640 263 ». Sierra Nevada L. W. & M. Co. Bills v. Smith Bilton v. Blakely Bindley v. Mulloney Bingham v. Bingham Binstead v. Colman Birch v. Blagrave ». Ellames v. Tebbutt v. Wade Birchell, ex parte Birch-Wolfe v. Birch Bird v. Webster Birds v. Askey Birmingham v, Kirwan Biron ». Mount Biscoe v. Van Bearle Bishop v. Bishop ». Church 732 273 510 1197 91 572 215 826 342 895 1113 678 913 926 932, 939, 942, 944, 946 856 359 469 114, 340 XIV, Bishop of Winchester v. Beaver 672 ». Fournier 526 v. Knight 381 v. Paine 317, 672 1049 165 88, B71, 574 Bize v. Dickason Blachford v. Christian Black v. Black Blackburn v. Edgley ». Gregson 1037, 1039, ba v. Stables 787 Blackett v. Bates 541, 546 Blackhall v. Coombs 33, 654 Blackie v. Clark 132, 300) Blacklow v. Laws Blackwell ». Bull 907, 909 Blaikie v. Staples 35) Blain v. Terryberry 43, 139, 238, 446 1176, 1178 Blagden v, Bradbear 567 ex parte 340 Blagrave v. Routh 227, 228, 229 Blair v. Bromley g 181 Blake v. Banbury 934, 940, 947 v. Blake 137, 634! INDEX TO CASES CITED. Bold v. Hutchinson 794 Bolitho v. Hilyar 261 Bolton v. Ward 474 Duke of, v. Deane 486 v. Williams 614, 1181 Bonar v. McDonald 118, 245, 252 Bond, re ‘1114 ». Hopkins 8, 35, 565, 666, 751 vw. Kent 1039 », Simmons 1185 Bone v. Cook 1077 ». Pollard 507 Bonham v, Newcomb 824 Bonner v. Bonner 412 Bonnett v. Sadleir 209 Bonney v. Ridgard 1004, 1005 Bononi v. Backhouse 687 Bonser v. Cox 118, 248, 372 Booker v, Allen 964 Booth v. Pollard 541 ». Rich 834 ». Vicars 906 Boothby v. Boothby ae Bootle v. Blundell 402, 886, 887, 902 Bogue v. Houlston 698|Bowman v. Yeat », Hungerford 37 »y. Luxton 795|Bor v. Bor 936, 939, 949, 956 v. Mowatt 149|Borell v. Dann 174 », White 248|Borr v. Vandall , 329 ‘Blakely v. Brady 537|Bosanquet v. Dashwood 167, 216, 218 Blakeney v. Baggott 175 v. Wray 342, 513, 514 Blanchett v. Foster 191|Bostock », Blakeney 1057 Bland v. Bland 917 v. Floyer 1060 ex parte 1033)|Bostwick v. Phillips 822 Blandy v. _Kimber 220|Bosvill v. Brander 1187, 1189 v.’ Widmore 960|Bosvell v. Dillon 783 Blatch v. Wilder 894|Boteler v, Spelman 451 Blaydes v, Calvert 1218, 1221, 1222|Bott v. Smith 265, 273 Blenkinsopp v. Blenkinsopp 191|Boucher v. Smith 310, 839 Blennerhasset v. Day 243, 1205|Boughton v. Boughton 934, 956 Blest v. Brown 154, 245|Boultbee v. Stubbs 245, 248, 251, 372 Bligh v. Earl of Darnley 412|Boulton v. Cameron 33. Blight v. Page 1090 v. Gilespie 1038 Blinkhorn v. Feast 1025|Bourne v. Bourne 992 Blisset v, Daniel 28, 493/Boursot v. Savage 755 Bliss v. Collins 351|Bouts v. Ellis 448 Blithman, re 274\Bouverie v. Prentice 458, 459 Blore v. Sutton 600|Bovey v. Smith 1058 . Blount v. Blount 446|Bowen v. Evans 37, 302, 303 Bloye’s Trust, re 231, 240, 244\Bower v. Cooper 174 Blundell v. Brettargh 81|Bower v. Smith 784 v. Gladstone 662|Bowes v. City of Toronto 211 Blunden v. Barker 222 v. Heaps 255, 258 Blunt v. Lack} 243 ». Strathmore 191 Boardman v. Mossman 1077|Bowker v. Hunter 1025 Bock v, Gomissen 377|Bowles v. Bowles 905 Boddington v. Langford 243 v. Orr 564, 666 Boden v. Dillow 51 v. Stewart 146, 178, 179 Bodenham v, Purchas 342, 343, 344/Bowmaker v. Moore 667 459 INDEX TO CASES CITED. xV Bowra v. Wright 479|British Empire Shipping Co. v. Somes Bowser v. Colby 41, 1096, 1106 58, 545, 1232, 1233 Bowsher v. Watkins 634, 635] British Museum Trustees v. White 766 Bowyer v. Bright 589 "72 ‘Boyd v. Belton 285/Britton v. Bathurst 67 v. Petrie 836 v. Twinin 913 Boyd’s Case - 1029|Broadbent v. Imperial Gas Company 685 Boynton v. Boynton 951|Broadhurst v. Balguy 1072, 1078 Brace v. Duchess of Marlborough 304,|/Broderick v. Broderick 139, 142, 149, 377, 1031 155 v. Wehnert é 541|Brodie v. Duke of Chandos 774 Bracebridge v. Buckley 1105, 1106|/Bromley v. Holland 48, 58, 59, 60, 82, Bracken v. Bentley 438 517, 525, 526, 527 Brackenbury v. Brackenbury 524 v. Smith 135, 216, 217, 218 Bradbury v. Hotten 698 258 v. The Manchester, &c., Rail- Brooke v. Enderby 342 way Co. - 650 ». Gally 263 Braddock v. Derisley 1018 v. Haymes 1252 Bradford v. Romney 111, 120 v. Lord Hertford 479 Bradley v. Bradley 74 v. Lord Mostyn 93 Bradshaw v. Bradshaw 1113, 1128 v. Rounthwaite 578 Bradwin v. Harper 125, 126|Brooking v. Jennings 67 Brady v. Keenan 44|Brookman’s Trust, re ~ 784 v. Walls 306|Brooks v. Brooks ' 1163 Braithwaite v. Britain 1004/Brooksbank v. Smith 131 Bramwell v. Halecomb 696, 728|Broom v. Broom 507 Brandao v. Barnett 1047|Broome v. Monck 934, 935 Brandly v. Ord 301|Brotherhood’s Case 1249 Brandon v, Brandon 965|Brough v. Oddy 551 ». Robinson 749|Brougham v. Squire 794 Brasbridge v. Woodroffe 1025|Broughton v. Broughton 237 Breaknock, &c. Canal Co. v. Prit- v. Hutt 91, 92, 99 ‘ chard 80|Broun v, Kennedy 120 Brennan v. Boulton 572\Brown v. Adams 1063. ». Moran 997 ». Brown 178, 529, 943 Brent v. Best 360 v. Cole 844. Brewster v. Canada Co. 688 v. Cassamajor 1082 Brice v. Stokes 1070, 1077 v. Clark 1174 Bridger’s Case 1247 v. Dawson 983 Bridge v. Brown 1125 v. Dudbridge 1228. v. Hindall 1222 ». Hammond 926 Bridgeman v. Green 181 v. Heathcote 858 Bridges v. Longman 836 v. Higgs 77, 83, 895, 897, 916, Bridgewater, Duke of, v. Edwards 66, 922, 923 481 v. Joddrell 160 Bridgman’s Trust, re 1080 v. Kennedy 224, 225 Briggs v. Chamberlain 998 v.' Lee 365, 367 v. Earl of Oxford 678 v. Like 1182 v. Penny 915, 916 v. Newell 734. et parte 145, 315 v Paull 1082 Bright v. Boyd 287 o, Peck 201 », Eynon 183 ». Perry 944 Brine v. Ferrier 980, 981 v. Pring 94 Brisbane v. Adams 266 ». Selwin 1026 v. Dacres 67 v. Sewell 818 Bristow v. Bristow 443, 764, 979 ». Thrope 286 Bristowe v. Needham 626 ». Vermuden 645 v. Ward 938 v. Woodhouse 838 xvi INDEX TO CASES CITED. Brown, re 342|Burles v. Popplewell 2 660 Brown’s Trust, re °315|Burn v. Burn 114 Browne re 243 v, Carvalho 860, 876 Brown’s Will, re 784/Burnaby v Griffin 784 Brownlee v, Cunningham 845/Burnes v. Russell 139 Brownell v. Brownell 384/Burnet v. Burnet 1128 Browning v. Morris 216, 217, 218|Burnham », Galt 832 Brownsword v. Edwards 928, 1228}/Burr v. Graham 688 Bruen v. Bruen , 972|Burrell v. Dodd 474 Bruin v. Knott 1126 v. Baskerfield 992 Brummell v. Wharin 687|Burrough v. Philcox 897, 898, 923 Brunker, ex parte 1216, 1218] Burrows v. Lock 141 Brunsden v. Woolridge 764 v. Walls 242 Bryan v. Cormick 627, 632|Bury v. Oppenheim 222 Brydges v. Phillips 403|Bushby v. Munday 664 Bryson v. Whitehead 205|Bushell v. Bushell 307 Bubb v. Yelverton 678)Butcher v. Butcher 180 Buccle v. Atleo 389, 391 v. Staples 572 Buccleuch v, Metropolitan Board of |Bute; Marquis of, v. Glamorganshire Am Works 1208 Co. 451 Buchanan v. Campbell 526/Butler v. Cumpston 1184 », Hamilton 1080 v. Freeman 444, 1115, 1122, v. Kerby 342 1124, 1130 Buckeridge v. Glasse 1028 ». Miller 175 Buckland v. Rose 269, 793 », Mulvihill 163 Buckle v. Mitchell 295, 518|Butterworth v. Walker 561 Buckley v. Lanauze 311/Buttrick v. Brodhurst 951, 954 Buckler v. Bowman 304|Buxton v. Lister 490, 541, 548, 552, Buckmaster v. Harrop 568, 571 554, 598 Buden v. Dore 1228|Byne v. Potter 518 Bufe v, Turner 153 v. Vivian 518, 526 Buffar v. Bradford 1025|Byrchell v. Bradford 1051 Bugden »v, Bignold 434/Byrom v, Brandreth 931 Buggens v. Yates 917 Bulkley v. Wilford 157, 225, 1053 C. Bullock v. Bennett 927 ». Chapman 654/Cadogan v. Kennett 264, 265, 266, 271, v. Dommet 80 : 721 v. Downes 93)/Cafe v. Bent 438 Buller v. Plunket 866, 877|Caffrey v. Darby 1077 Bullpin v. Clarke 1183)Cage v. Russell 1097 Bulmer v. Jay 906/Cahuac v. Durie 660 Bunbury ». Bunbury 655)/Cairncross v. Lorimer 1255 Buntin v. Georgen 872|Calcraft v. Roebuck 586 Bunting v. Marriott 774|Caldwell v. Ball 36 Burden v. Dean 1188, 1189 v. Van Vlissengen 696 Burdett v. Willett 1052 ex parte 858 Burdick v. Garrick 751/Caledonian Railway Co. v. Sprot 690 Burges v. Lamb 678 v. Hellensburg Trustees 210 Burgess v. Burgess 708|Callaghan v. Callaghan ~ 174, 744, 865 ». Howell 311)Calverly v. Williams 106, 586 v. Wheate 5, 34, 46, 1015, 1016,/Calvert v. London Dock Co, 372 035/Cameron v. Hutchinson 320 Burgh v. Francis 397 v. McDonald 336 Burk v. Brown 383/Campbell v. Bainbridge 784. Burke v. Green 878, 879 v. Campbell 972, 1145 ». Rogerson 155 v. French 125, 129 Burlace v, Cook 37 v. Hooper 161 INDEX TO CASES CITED. Campbell v. Horne 181 ». Ingilby 943, 952, 957 v, Mullett 5(6, 1040 v. Radnor 979, 981 v. Royal Canadian Bank 473 v, Scott 698, 699 v. Twemlow 1205 v. Walker 240) re 663 Campion v. Colton Cane v. Lord Allen Cann v, Cann Cannell v. Buckle Capel v. Butler v. Girdler Caplin’s Will, re 793 227, 229, 232 89, 90, 94, 1240 1163 250 803 921 Capper v. Spottiswoode 1039 Carden v. Butler 1095 Carew’s Estate 206 Carew v. Cooper 868 Carey v. Askew 437 v. Goodinge 1025 Carlisle, Corp. of, v. Wilson 45, 47 Carlton v. Earl of Dorset 191 v. Leighton 863) Carmichael v. Hughes 1126 Carne v. Long 767 Caron Iron Co. v. McLaren 664! 221 101 999 987 141 1190 42 39, 607, 818 Carpenter v. Herriot Carpmael v. Powis Carr v. Ellison v. Estabrouke ex parte Carr’s Trust, re Carroll v. Eccles v. Robertson Carter v. Boehm 151 v. Carter 301, 784 v. Palmer 225, 227, 229, 233, 1030 v. White 785 v, Williams 313 Carteret v. Paschal 860} | Cartwright v. Diehl 480 v, Gray 688 Carver v. Richards 78, 586 Carville v. Carville 894 Cary v. Abbot 769, 770 v. Bertie 380, 1089, 1103, 1137 v. Cary 235 v. Faden 698, 699 Casborne v Barsham 222, 228 v. Scarfe 814, 815 Casburne v. Inglis 811 300 722 1082 508, 574 Case v. James, Castelli v. Cook Castle v. Castle Caton v. Caton ' XVI Cator v. Bolinbroke 1040 v. Lord Pembroke 103 Catt v. Tourle 205, 650 Calton v. Wyld 600 Cawdor v. Lewis 285, 607 Cawood v. Thompson 773 Cawthra v. Maguire 676, 820 Cecil v, Plaistow 245 Central R. R. of Venezuela v. Kisch 315 Chace v. Westmore 1033, 1203, 1204, 1206 Chadwick v. Turner 308, 826 Chalie v. Pickering 663 Chalk v. Wyatt 688 Chalmers v. Bradley 1000 v. North 439 v. Storil 946, 951 Chamberlain v. Agar 181, 590 v, Chamberlain 68, 590 v. McDonald 172, 1158 Chamberlyne v. Dummer 674 Chambers v. Brailsford 905 v. Crabbe 191, 222 v. Goldwin 383 v. Minchin 127, 1077 v. Waters 244 Champernoon v. Gubbs 483, 486 Champion v. Rigby 226, 227 v. Wenham 173. 1199 Chandless v. Price 913 Chandos v. Brownlow 307 v. Talbot 860 Chanter v. Hopkins 165 Chapin v. Clark 110 Chaplin v. Chaplin 359 Chapman v. Brown 773 v. Chapman 18, 601, 826 v. Derby 337 v, Emery 294 v. Gibson 74 v. Koops 512 v. Reynolds 929 v. Tanner 1037, 1040 Chapman & Barker’s Case 752 Chapple v, Cadell 504 Charge v. Goodyer 905 Charlton v. Coombes 202 v, Earl of Durham 1072 v. Low 800 v. Poulter 494 ». West 985 v. Wright 396 Charter v. Trevelyan 332 Chasemore v. Richards 690 Chater v. Beckett 346 Chauncy v. Graydon 196 Chavany v. Van Sommer 493 xviii INDEX Chave v. Chave 941 Chawner’s Will, re 836 Cheale v. Kenward 549 Chedworth v. Edwards 331, 460, 670, 719, 1028 Cheetham v. Crook 338, 340 Cherrington v. Abney 687 Cherry v. Boultbee 340 ». Morton 311 », Mott 778 Cheslyn v. Dalby 228, 545, 1195 Chesman v. Nainby 205 Chester v. Chester 772 », Urwick 44] ». Willis 441 Chesterfield v. Janssen 133, 135, 136 138, 174, 212, 218, 219, 255, 256, 257, 262 Chetwynd », Fleetwood 956 Chilcot v. Bromley 905 Child v. Comber 567 ». Douglas 721 ». Elsworth 443 ». Godolphin 566, 567 v. Pearl Chilliner v. Chilliner 535 Ching v, Ching 1205) Chisholm v. Barnard 1061 . v. Sheldon 693 Chitty v. Parker 1017 Cholmondeley v. Ashburton 906 v. Cliriton 35, 716, 751, 811, 840, 879 Christian v. Field 831 Christie v. Craig 722 v. Long 693 v, Saunders 679 Christophers v. Sparks 843) Christ’s College Case 779 Chubb ». Stretch 1181 Chudleigh’s Case 738) 1140 940 823) 711 926 Chumley, ex parte Churchill ». Churchill Church Society v. McQueen Churton v. Douglas Circuit v. Perry City Bank, ex parte 877 Clancarty v. Latouche 387 Clanricarde v. Henning 227 Clapton v. Bulmer 905) Clare v. Clare 913 v. Earl of Bedford 285; 289 Clare Hall v- Harding 288 Clarendon, Earl of, ». Hornby 477, 478 Claridge v. Hoare 1231 Clark v. Cort 339 v. Freeman 709 TO CASES CLIED. Clarkson v, Edge v, Kitson Clavering v. Ellison ». Westley Clay, ex parte v. Pennington Clayton’s Case Cleland, ex parte Clement v. Maddick Clements v. Bowes v. Hall v. Welles Clerk ». Wright Clifford v. Beaumont v. Brooke v. Burlington Clifton v. Burt ». Cockburn Clinch v. Brophy Clinton v. Hooper Clinton’s Trust, re Clipperton v. Spettigue Clive v, Clive Clough v Bond Clowes v. Higginson Cloyne v. Young Clun’s Case Coape v. Arnold Coates v. Joslin v. Staffordshire P. W. Co. Coats v, Clarence Railway Co. Clark ». Guise 934, 950 v, Hart 1250 v, Lord Abingdon 1100 ». Malpas 258, 519 v May 819 v. Sewell 985 vo. Wright 295 Clarke v. Byne 618 ». Clark 603 v, Franklin 993, 996, 997 v, Grant 579 v. Hawke 44, 157, 224 v, Henty 667 v. Hilton 1017 »v, Manning 133 v. Ormond 391, 660 v. Parker: 192, 195, 196, 199, 200 ». Periam 213 v, Richards 1024 v. Ritchey 245 v. Swaile 238 ». Taylor w7 » . Tipping 149, 231, 329, 383, 1063 596 163 204 482 508 1125, 1128 342, 343 1041 714 504 505, 1246 596, 689 571 199 291, 600 74 401 90, 97, 132 Clinan v. Cooke 111, 568, 569, 570, 573, 577 35 1168 784 371 443 68, 70 106, 111 688 1025 349 784 273 688 Cobbett v. Brock Cochran v. Willis Cock v. Ravie ». Richards Cockburn v. Johnston v. Peel Cockell v. Taylor Cockerill v. Cholmeley Cocking v. Pratt Cocks v. Chandler v. Foley v. Manners Cockshot v. Bennett Codd v. Woden Codrington v. Lindsay v. Parker Coe’s Trust, re Coffin v. Coffin Cofton v. Horner Coham v. Coham Colborne v. Thomas Colbourne v. Simms Colby v. Gadden Colchester, Mayor of, v, Lowton Colclough v. Sterum Coldwell v. Hall Cole v. Gibbons ». Gibson ». Robbins »v. Wade v. Warden v. White Colebrooke v. Atty.-Gen. ex parte Coleman v. Glanville v. Mellersh v. Wallis v. Whitehead Coles v. Jones v. Sims v. Trecothick Colesworth v. Brangwin Collet v. Jaques Collier v. Brown Collingwood v. Row Collins v. Archer ». Blantern », Cave v. Hare v. Stuteley Collins Company v. Brown v. Cowen Collinson v. Lister v. Pattrick Collis v. Robins Collinson’s Case Collyear v. Mulgrave Collyer v. Ashburner INDEX TO CASES CITED. xix. 300'Colyer v. Fallon 866, 872 99, 100, 102'Colman v. Crocker 272, 276 1222 v. Duke of St. Albans 820 192, 193 v, Sarrel 525, 744 371\Colmere, re 274 1062\Colne Vall. & Halstead Co., re 1062 175, 879, 880;\Colombine ». Penhall 267, 793 112/Colt v, Netterville 549 90, 94, 99, 100, 221 v. Wollaston 133 707|Cotton v. Rookledge 541 481 v, Wilson 886 765\Colwell v. Shadwell 999 277|Colyer v. Clay 99, 100, 102 653 v, Finch 37 943/Coming, ex parte 826 632|Comm’! Bank v. Cooke 793 1128 v. McConnell 583 678|Commissioners of London v. Glasse 492 1228 1114!Compton v. Oxenden 853 1039)Conduit v. Soane 640, 1146 460, 695)Conington’s Will, re 1090 143)Constable v. Bull NLT 526 v. Guest 318 1010 v. Tuffnell 165 817/Constantein v. Blache 278 219, 255, 258/Conyers v. Abergavenny 645 186, 187/Cook v. Addison 1063 163 v. Clayworth 162, 163, 518 895 ». Dawson 836 397 v. Rosslyn 618 572 v. Fountain 1012 28 v. Gregson 396 28 v. Hutchinson 1014 471 v, Jennings 346 228 v. Tombs 346 277 ». Walker 271, 1025 68 v. Wotton 88 877|Cooke v. —— 370 313, 721 v. Cholmondeley 886 175, 231, 238, 241 v. Cooke 495 1025 v. Setrie 227, 228 66, 481 v. Turner 886 174\Cookes v. Hellier 936 ° 995|\Cookney v. Anderson 516 37|Cookson v. Cookson 1001 211, 213 v. Ellison 1236 139 v. Reay 992 255|Coomb, ex parte 826 604|Coombs, re 418 710|Coope v. Twynham 368, 369 710\Cooper . Carter 1078 315 », Cartwright 819 745, 745, 865 v. Cooper 949 401, 403 v. Denne 560, 578, 766, 779 ». De Tastet 617 744, 865 v. Joel 519 443) v, Kynock 783 RX INDEX TO wu Cooper v. Martin 78 ». Phibbs 88, 90, 92, 607 v. Webb 504 v. Wormald 574 Coote v. Boyd 979, 982 Cooth v. Jackson 211, 567, 571 Cope v. Doherty ‘ 364 1052 Copeman »v. Gallant Copis v. Middleton 174, 175, 250, 264, 265, oS a Copley v. Copley 972, 9 Coppin v. Coppin 68, 72 v. Fernyhough an Coppock v. Bower Corbet v. Barker v. Tottenham Corbett v. Radcliffe Corbett’s Trust Corbyn v. French Cordel v. Noden Corder v. Morgan Corley v. Lord Stafford Corneforth v. Geer 840, 842 1125 265, 268 440 774 1025 836 225 1203 Cornfoot v. Fowke 141 Cornish v. Tanner 611 Cornthwaite v. Frith 856 Cornwall, re 429 Corporation of Carlisle 1. Wilson _ 50, 7 644, 645 East Zorra v Douglas 246, 247 Hythe v. East 606 Corrigan v. Corrigan 157, 163 Cory v. Cory 167 v. Hyre 303 ». Gertcken 170, 285 v. Thames Iron Vo. 606 Coslake v. Till 584 Cottam v. Eastern Co. Railway 300, 302 Cottingham »v. Boulton 105, 579 v. Fletcher 566, 567 Cottle v. McHardy 97 Cotton v. King 191 Coulson v. White 686 County of Frontenac v. Bredin 69 Courthope v. Maplesden 691, 693) Coventry, Mayor of, v. Atty.-Gen. 936 » Chichester 963, 972, 973 ». Coventry 74 Coverdale v. Eastwood 791 Coward v. Hughes 92 Cowdry v. Day 225, 227 Cowell v. Edwards 365, 367 Cowman v. Harrison 917 AIRF Wa mua, Cowper v. Cowper 5, 34, 35, 179 v. Scott 936 Cowtan v. Williams 618 Cox v. Bishop 482 ». Bruton 90, 105 ». Foley 66 ¥, James 303 v. Parker 1015 Cox’s Creditor’s Case 393, 394, 398 Crabb v. Crabb 1022 v. Parsons 33 Crabtree v. Bramble 46, 999, 1001 Crackelt v. Bethune 1057 Crafton v. Frith 765 Craig v. Gore Dist. M. Ins. Co. 33 Craig v. Leslie 46 v. Templeton 461, 468 Cramp v. Playfoot 772 Cranmer, ex parte 1141 Cranmer’s Case 985, 988 Cranston v. Johnston 664 Craven v. Brady 202 Crawford v. Armour 832 v. Birdsall 582 v. Findlay 820 v. Fisher 615, 617 Crawshay v. Collins 496, 502, 505, 510, 1209 v. Maule 490, 496, 502, 543 Thornton 610, 616, 617 Craythorne ». Swinbourne 349, 365, 366, 367, 369, 370 Creagh v. Blood 160 v. Wilson 196 Creed v. Creed 441 Creuse v. Orby Hunter 1118 Crickett v. Dalby 444 Crippen v. Ogilvy 163, 174, 817 Crockat v. Crockat 441 Crockett v. Crockett 1082 Crockford v. Alexander 691 Croft v. Graham 518 v. Lindsey 658 v. Powell _ 836 Croker v. Martin 265, 297 Crompton v. Sale 968, 987 Crooke v. Brooking 743, ». Corporation of Seaford 1245 v. De Vandes 911, 912, 913 v. Whitley 908 Crooks v. Crooks 35, 418 v. Davis 108, 144, 579 v. Watkins 85 Crop v. Norton 1018 Crosbie v. Guion 496 v. Murray 934 Crosby v, Church 1183 Cowley v. Harstong 993) Cowling v. Cowling 929 Cowper v. Baker 693 v. Clerk 646, 647, v, Middleton 117 INDEX TO CASES CITED. 1218 69, €58, 1075 Crosley v. Marriot Crosse ». Smith Crosskill v. Bower 237 Crossly v. Clare 905 v. Derby Gas-Light Company 696 Crow ». Tyrell 666 Crowder v. Tinkler 684 Crowe v. Ballard 167, 219, 231, 262 v. Clay 63 Crowfoot v. Gurney 875 Croyston v. Baynes 566 Cruikshank v. Duffin 836 v. Roberts 635 Cruse v. Barley 1017 Cruttwell v. Lye 205, 596 Cruwys v. Colman 737, 905 Cubit v. Smith 541 Cud »v. Rutter 549, 605 Cullingsworth v. Loyd 277, 278 Cults v. Salmon 227 Cumberledge v. Lawson 105; Cumming v. Bank of Montreal 251, 372 v. Forrester 939 Cunningham v. Buchanan 154, 245, 342, 657 v. Lyster 249 v. Moody 999 Curling v. May 992 ». Townshend 262). Currie v. Pye 416, 979 Currier’s Co. v. Corbett 603 Curres v. Pile 981 Curson v. African Co. 338 Curteis Trust, re 745 Curtis v. Auber 861 v. Buckingham, Marquis of 717 ». Curtis 380, 462, 463, 1121 ». Hutton f u a. Pe v. P. oe 265 v. Ripon 917, 1113 v. Smallrige 654 Curwyn v. Milner 219 Cutter v. Powell 346, 347 D. Da Costa v. Mellish 1113, 1116 Dacre v. Gorges 132 Daking v. Whimper 295, 296 Dakins v. Berisford . 1178 Dalbiac v. Dalbiac 157, 171, 178, 235 Dale v. Sollett . 336 Dalglish v, Jarvie 653) Dalston ». Coatsworth 62, 178, 179 v. Poole 34 Dalton v. McNider 1214 Daly v. Kelly 228, 672, 717 Dalzell v. Welsh Damer’s Case Daniel v. Dudley v. Newton v. Skipwith Daniels v. Davison Dann »v. Spurrier Danvers v. Manning’ Darbey v. Whittaker Darby v. Darby v. Greenlees D’arcy v. Blake Dare Valley Railway Co. ve XXi 905 779 906 1124 834 313, 591, 1035 287, 607 125, 126 495, 537 507 583 464 1208 Darley v. Darley 1166, 1173, 1174, 1176 ». Martin Darlington, Earl of v. Bowes v. Pultney Darthez v. Clemens Dashwood v. Bithazey v. Bulkely v. Peyton Daubeny v. Cockburn Daun v. City. &c. Co. Davenport v. Ryland v. Stafford ‘Davers v. Dewes Davey v. Durant Davidson v. Boomer ». Douglas v. Thirkell Davies v. Ashford . Davies . Humphries . Otty Sear . Stainbank Topp . Waittier Davies’ Will, re Davis v. Abraham v. Bowsher . Chambers Clark Davis Dowding eseeeeae geese 913 649 75 335 834 195 936, 940 180 845, 846 606 178 1025 857 462 613 502 1001 285, 286, 784 365 218 1245 251, 372 40] 73 440 225 1047 974 206 374 834 Duke of Marlborough 258, 262, 526, 623, 624, 632, 866, 867 ’ * v. Earl of Dysart 530 v. Earl of Strathmore 292, 319 v. Goodhue 992 v. Hawke 228 ». Hone 583 v. Hopkins 774 v. May 1067 v. Morrier 90 v. Page 957 v. Snyder 534, 588 v, West 1094, 1¢€96 xxii INDEX TO CASES CITED. Davis, Doctor, Case of 1131|De Tastet v. Shaw 514 Davison v. Atkinson 1173|De Themmines v. De Bonneval 769 Davy ». Davy 481, 483, 486, 487|/Devaynes v. Noble 114, 342 v. Hooper 895, 923 ». Robinson 829, 896 Davys v. Boucher 968, 969, Devenish v. Baines 34, 590 Dawson v. Chater 886 Barnes 133, 181 v. Clarke 436, 917, 1025|Devese v. Pontet 987 v. Dawson 383, 1218, 1219,;Devonsher v. Newenhain 649, 886 1220) Dew v. Clarke 1242 v, Massey 235|Dey v. Dey 950 ut. Newsome 95/Dick v. Milligan 1206 v. Prince 300, 302 v. Swinton 122) Day v. Boucher 965|Dickin v. Hamer 469 v. Day 446|Dickinson v. Burrell 879 v. Merry 678) v, Dillwyn 684 v. Wells 578 v. Grand J. Canal Cu 690 Dean v. Dalton 1025 Dickson, re 196, 204 Deane v. Izard 605, 606 v. Equitable, &c. Ins. Co. 153 Dearle v. Hall 37, 39, 877, 1018 v, Robinson 946 Debenham v. Ox 167, 186, 189 v. Swansea, &. R.R. Co. 877 De Bernales v. Fuller 870)\Dietrichsen v. Cabburn 537, 539 De Biel v. Thompson 574|Digby v. Cornwallis 389 De Costa v. De Pas 569, 770 ex parte 356 v. Jones 211/Dilkes v. Broadmead 793 Deeds v. Graham 237|Dillon v. Coppin 537 Deeks v. Strutt 435 v. Grace 1184 Deerhurst v. St. Albans 787 v. Parker 932, 939, 948, 952, 955 Deeth v. Hale 1000/Dilly v. Doig 644 Deez, ex parte 1033|Dimes v. Grand Junction Rail. Co. 243 Defries v. Creed 663 v. Scott 1086 Deg v. Deg 398, 1027 v. Steinberg 133 De Garcin v. Lawson 769, 770/Dimmoch v. Hallett 143, 207 Degear v. Smith 1039|Dingman v. Austin 173, 1148 Degge, ex parte 1187, 1140;Dinham v. Bradford "495 De Hoghton v. Money 297| Dinwiddie »v. ‘Bailey 328 De La Touchés Settlement, re 120, 788/Diplock v. Haminond 1148 Delesdernier v. Burton 168'Disney v. Robertson 647 Del Mare v. Rebello 126) Dixon v. Enoch 31 Delver v. Barnes 1204 v. Gayfere 1001 Demandray v. Metcalf 851 v. Hammond 617 De Manneville v. De Manneville 1112, v. Holden 687 1115, 1118 v. Saville 814 De Manville v. Crompton 141, 191|/Dobson v. Land 244, 848 De Montmorency v. Devereux 225!Docker v. Somes 332, 1056 Denison v. Denison 157, 221|Doddington v. Hallet * "393 Deniston v. Little 581|Dodds v, Hill 300 Denne v. Light 139|Dodsley v. Varley 1033, 1036 Denny v Hancock 106|Doe v. Gay * "435 Dent v. Bennett 224, 229 v. Jessop 928 Denton v. Donner 166, 243 v,. Manning 295 v. McNeil 141, 143 v. Pilcher 767 v. Stewart 572, 602, 604, 605 v. Rainsford 310 Denys v. Shuckburg 88, 131 v. Routledge 265 Dering v. Earl of Winchelsea 345, 361, v. Rusham 296, 297 365, 366, 367, 368, 369)». Staples 179 v. Kynaston 784) v. Woodhouse 913 Desbody v. Boyville 195) Dolman v. Nokes 150 Descrambes v. Tomkins 444' Doloret ». Rothschild 549, 584 INDEX TO CASES CITED. Donaldson v. Donaldson 157, 537, eee Done’s Case 223 Donegal’s Case 465 Donegal, Marquis of, ». Greg 74 Doner v. Ross 418 Donovan v. Needham 444 Doolin v. Ward 206 Door v. Geary 126 Doran v. Simpson 421 Dorchester, Lord, v. Earl of Effing- \ ham 944 Dormer’s Case 1140 Dormer v. Fortescue 61, 62, 118, 380 463, 1067 1242 679 595 Dornford v. Dornford Dorset v. Girdler Dougal v. Foster Doughty v. Bull Douglas v. Culverwell 258) v. Fellows 926 v. Russell 861 v, Ward 223, 264 v. Woodside 329 Doungsworth v. Blair 865 Dove v. Dove 727 Dover v. Buck 238 Dowdale’s Case 422 Dowell v. Dew 292, 1179 Dowling v. Betjemann 553 ». Hudson 1007 v. Tyrell 444 Dowman v. Matthews 337 Downe ». Norris 831 Downes v. Glazebrook 238, 240, 244 Downs v. Collins 543 Downshire v. Sandys 674, 678 Dowson v. Bell 945 Drake v. Bank of Toronto 41 Drant v. Vanse 995 Draper v. Borlace 289 Drapers’ Co. v. Davis 228 Drew v. Lord Norbury 307 586, 589 148, 231 , 31] Drewe v. Hanson Driscoll v. Bromley Driscoll, re Druiff v. Parker 112 Drummond v. Pigou 653: v. Tracy 150 Drury v. Drury 333 v. Hook 186 », Smith 446, 448 Drysdale ». Mace * 143, 578 v. Piggott 432 Dubois v. Hole 1163, Dudley v. Dudley 464 248 58, 446, 448, 533 272 Duff v. Barrett Duffield v. Elwes Duffy v. Graham XXiil Duggan v. Kelly 204 Duggan’s Trust, re 860 Duignan 'v. Walker 714 Duke of Beaufort v. Patrick 288 Bedford v. Coke 215 Leeds v. Lord Amherst 382 Dumas, ex parte 1052 Dunbar v Tredennick 231 Duncan v. Worrell 526 Duncombe v. Mayer 529 Duncuft v. Albrecht 549 Duncumban »v Stint 437 Dundas v Dutens 270, 574 Dungey v. Angove 618 Dunk v. Fenner 913 Dunn ». Bownas 773 Dunnage v. White 91, 94, 97 Dunne v. Dunne 1015 Durant v. Titley 1197 Durell v. Pritchard 600 Durham v. Bridgford 1209 v. Wharton 965 Durham & Sunderland Railway Co. v. Wawn 735 Dutton v. Furness 619 1. Morrison 509, 512 v. Pool 590 Duvall v. Terrey 1100 Dyer v. Dyer 1016, 1021 v. Hargrave 586, 603 Dyke v. Rendall 944 E. Earl v. Stocker 1199 Earl of Bradford v, Earl of Romney 113 Devonshire’s Case 324 Hardwicke v. Vernon 329 Earlom v. Saunders 992 Early v. Benbow 980 v. Middleton 981 East v. Cook 948, 949 Eastabrook v. Scott 188 ¢ East India Co. v. Boddam _ 48, 56, 58, 59, 60, 62 v. Campion 1100 » Donald 99, 100, 124 v Henchman 231, 329 v, Neave 99, 100, 124, 212 v, Vincent 287, 540 Eastland v. Reynolds 182, 196 Eastwood v. Lever 606 v. Vineke 985, 986 Eaton v. Lyon 1106 Ebbett’s Case 1247 brand v. Dancer 1018, 1122 XXIV Ebrington v. Ebrington 956 Echliff ». Baldwin 672, 717 Edge v. Bumford 79) Edinburgh Life Ass. Co. », Allen 163, 164, 242 Edmonds v. Plews 205) Edmunds v. Fessey 908 ». Low 987 v, Waugh 360 Edsell v. Buchanan 35 Edwards v. Browne 258 v. Clay 555 v. Countess of Warwick 352, 999, 1001 v. Edwards 439, 1192 ». Freeman 68, 72, 374, 806 v, Grand Junction R. Co. 210 v, Hall 441, 772 v. Harben 271 ». Jones ‘446 v. McLeay 578 v. Meyrick 225, 227, 228 v. Morgan 130, 952 v. Pike 214 ». Wickwar 143) Edwin v. East India Co. 1090 Eedes v. Eedes 1189 Eeles v. England 910 Eland v. Eland 1004, 1007, 1008, 1009, 1010 Elborough v. Ayres 879 Elgie v. Campbell 157 Ellard v. Llandaff 578 Ellice v. Roupell 1241 Elliot v. Collier 390 v. Davenport 533 v. Ince 161 Elliott v. Cordell 1188, 1189, 1190 v. Jayne 854 v. Meryman 1004, 1008, 1010 v. Royal Exch. Ass. Co. 495, 1210 v. Turner 1095 Ellis v. Barker 235 v. Bartrum 997 v. Dillabough 244, 838 v. Lewis 946 ». Nimmo 744, 865 v, Selby 767 Ellison v. Ellison 1080) Elmsley v. Macauley 622 v. Madden 769 v. Young 905, 909 Eltham Parish v. Wareyn 766 Elton v. Eason 913 v. Elton 199 ex parte 508 INDEX TO CASES CITED. Elwes v. Elwes 794. Elworthy v. Bird 544, 1196 Emmanuel Coll v. Evans 811 [Emery v. Wase 1199, 1213 Emes v. Barber 215 Empson’s Case 1252 Emrick v. Sullivan 172 Emuss v. Smith 415, 995 Engerson v. Smith 823 England v. Curling 494, 543 ». Downs 188, 191 re 1128 Eno v. Tatham 406 Ernest v. Croysdill 1051 Errington v. Aynesley 541, 606, 1095 Erving’s Case 422 Esdale v. La Nauze 302 ». Stephenson 586 Espey v. Lake 235, 653 [Espin v. Pemberton 320 Esposito v. Bowden 496 Essell v. Hayward 499 Essex v. Baugh 310 v. Essex 507 Estwick v. Caillard 273, 855 Etches v. Lance 1222 Eton College v. Beauchamp 66, 482 v. Bishop of Winchester 4 Evans v. Bagshaw 475 v. Bicknell 59, 133, 139, 149, 286, 289, 291, 293 v. Bremridge 33, 105, 118, 155, 372 v, Carrington 149, 213 v. Harris 567 v. Llewellyn 91, 167, 175, 177 v. Rosser 194, 203 v. Wyatt 401 Evelyn v. Evelyn 902 v. Lewis 663 v. Templar 295 Everitt v. Everitt 235 Evitt v. Price 716 Evroy v. Nichols 285 Ewart v. Gordon 754 Ewelme Hospital v. Andover 644, 645 Ewer v. Corbett 1005, 1006 v. Moyle 350 Ewing v. Osbaldiston 537 Eyre v. Countess of Shaftesbury 1112, 1115, 1116, 1122, 1130, 1131, 1137 v. Dolphin 307, 313, 316 v. McDonell 243 v. Popham 566 Eyton v. Denbigh, &c. Railway Co. 624 y. Eyton 178 INDEX TO CAI F. Fagys v. James 301 Fairfax v. Derby 486 Fairthorne v. Weston 503: Falcke v. Gray 106, 174, 175, 553 Falkland v. Bertie 31 Falkner v. Butler 906 v. O’Brien 167 Fall », Elkins 475 Fallon v. Keenan 157 Falls v. Powell 327 Farebrother v. Gibson 146, 578 v. Prattent 615 v. Welchman 33) Farewell v. Coker 90 Farina v. Silverlock 708 Farley v. Starking 469 Farmer v. Arundel 1049 v. Farmer 157 v. Martin 180 Farnham ». Phillips 969 Farquhar v. City of Toronto 872 Farquharson v. Cave 446 v. Pitcher 653) ». Williamson 568 Farr v. Newnham 417 v. Sheriffe 38, 41 Farrall v. Davenport 571 Farrant v. Lovel 818 Farrell v. Heelis 858) Farrington v. Knightly 390, 435, 436 1025) Farwell v. Wallbridge 548 Faulder v. Silk 160 Faulkner v. Daniel 355, 357, 359 Fawcett v. Fothergill 831 ». Lowther 1015 v. Whitehouse 504, 1023, 1053 Fawell ». Healis 1040 Featherstonehaugh v. Fenwick 498, 502 v. Turner 490) Feilden v. Slater 313, 689 Feistel v. King’s Coll. 868 Fell »v. Brown . 831 v. Chamberlain 1018 Fellows v. Lord Gwydyr 144, 209 v. Mitchell 1074 Fells v. Reed 552, 553 Feltham v. Clarke 72 Fenton v. Hughes 1236 Fenwick v. Clarke 72 Ferguson v. Kilty 272) Ferrand v. Prentice 437 Ferrars v. Cherry 313) Ferrass v. McDonald 309,-314 Ferrers v. Tanner 496 Ferrier v. Kerr 676 Cc SES CITED. XKV Ferrier, re 631 Ferris v. Goodburn 966, 971, 972 v. Newby 483 Festing v, Allen 444 Fiddey re 1254 Field ». Beaumont 654, 691, 692 v. Bollard 292 v. Donoughmore 856 v. Evans 223 v. Martin 988 v. Moore 943 v. Sowle 1182 re 165 Fielding v. Preston 401, 444 Finch v, Brown 817 v. Earl of Winchelsea 397 v. Finch 972, 975, 1018, 1021 : 1225, 1231 v. Newnham 179 v. Shaw 37 v. Tucker 795 Finden v. Stephens 919 Finlayson v. Mills 854 Firmin v. Pulham 260 Fisher v. Baldwin 653 v. Brierly 774 v. Gilpin 1063 v. Glass 663 Fishmongers’ Co. v. East India Co. 685 Fisk v. Norton 394 Fitch v. Webber 997 Fitzgerald v. Rainsford 167 ex parte 1040, 1141 Fitzpatrick v. Wilson 475 Flarty v..Odlum Flight v. Bolland v, Cook Flint v. Brandon v. Corby v. Hughes v, Smith v. Woodin ex parte Flower v. Marten Floyer v. Bankes Fluker v. Taylor Foley v. Burnell v. Hill v, Parry Follis v. Porter Foly’s Case Fleming v. Buchanan v. Duncan’ Fletcher v. Ashburner - v. Fletcher Fitzsimmons v. Fitzsimmons 941 Flack v. Holm 1216, 1218, 1221, 1222, 1223 866 401 225 46, 595, 991 1197 551 437 B41 548 917 1039 207 337 531, 533 1044 330 438, 637, 640 327 916 588 397, 398 XXv1 ' Foote v. Matthews 872 Forbes v. Denniston 307 v. Lawrence 977 v. Moffat 854 ». Peacock 894 v. Ross 237, 1029 Ford v. Fowler 916 v. Olden » 244, 274 v. Peering 529, 530 v. White 303, 306 Fordyce v. Willis 742 Forman v. Homfray 504 Forrest v. Elwes 603, 1057 Forrester v. Campbell 111 ». Cofton 940) Forster v. Forster 795 ». Hale 573 44) Forsyth v. Johnston 191 Fortescue v. Hannah Forth v. Chapman 912, 913 Foster v. Beall 308 Foster v. Blackstone 308, 877 », Charles 141 ». Cook 944, 945, 946 v. Denny 1115 v. Donald 592 '», Foster 1067 fv. McKinnon 237 ». Munt 1025 v. Roberts 258 re 228 Fothergill v. Fothergill 74 Fourdrin v. Gowdray 416, 781 Fowkes v. Chadd 887 v. Manchester, &c. Ass. Co. 152) Fowler v. Fowler 113, 794, 983, 990 re 938 Fox v. Charlton 940 v. Fox 917 v. Hanbury 512 v. Mackreth 150, 220, 232, 240 v. Wright 262 Foy v. Foy 773 v. Merrick 141 Frame v. Dawson 571, 572 Francis v. Francis 1041 v. Wigsell 1180 Franco v, Alvares 435 v. Bolton 213, 524, 1231 Frank ». Frank 89, 957, 999 v, Lady Standish 934 Franklin v. Hosier 1033 ». Thomas 653) Franklinski v. Ball 600) Franklyn v. Tuton 542 Franks v. Bollans 240 v, Weaver 709 INDEX TO CASES CITED. Fraser v. Byng 979 vy. Locie 342 v. Sutherland 139 v. Thompson 265, 267 Frazer v. Jones 37, 303 Frazer v, Thompson 793 Frederick v. Aynscombe 890 Freeman v. Bishop 255, 263 v. Cooke 1250 v. Fairlie 529, 530, 635, 1063, 1065 v. Lomas 340 v. Pope 269 v. Simpson 444 Freemantle v. Bankes 969 Freemoult v. Dedire 397 Freestone v. Rant 74 Freke v. Barrington 936 French v. Chichester 1008 v. Davies 944 », Fenn 337 », French 265, 268 v. Macale 1095 Frewin v. Lewis 720 Fricht v. Sheck 149 Friend v. Harrison 213 Frier v. Peacock 777 Frietas v. Don Santos 52, 327, 329 Frith v. Cartland L055 Frogley v. Phillips 908 Frontenac v. Breden 246 Frost, re 1144 Frowd v. Lawrence 663 Fry v. Porter 5, 197 Fryer v. Buttar 438 Fullager v. Clark 138 Fuller v. Abbott 346 v. Patterson 611 v. Redman 394. ». Richmond 548 Furlong v. Fetirell 278 Fussell v. Dowding 797 Fyfe v. Arbuthnot 794 Fyfe v. Swaby 549 Fyler v. Fyler 1060 Fynn, re 1117, 1119 G. Gage v. Mulholland 376, 1042 Gainsborough ». Gifford 33, 654, 657 Gale v. Lindo 187, 188 v. Luttrell 328 v, Williamson 265 Galloway v. Corporation of London 226 v. Holmes 146 Galt v. Bush 1039 Galton v. Emuss 206 INDEX TO CASES CITED. Gambart v. Ball Gamble v. Howland 698 688 Gammon ». Stone 431 Garbut v. Hilton 199 Gardiner v. Slater 196, 199 Gardner v. 1218 ». Emor 225 ». Morse 206 ». Parker 446, 448 Garforth v. Fearon 212 Garrard v. Frankel 107, 111, 122 v. Lauderdale 743, 807, 873, 1013 Garrett v. Pritty 198 Garth v. Cotton 133, 382, 675, 676 v. Meyrick 980 », Ward 317 Garthshore v. Chalie 1027 Gartside v. Gartside 1199 v. Isherwood 157, 158, 175, 220 Gaskell v. Chambers 243 v. Durdin 317, 672 Gaskell v. Gaskell 475, 744, ae Gas Light &c. Co. v. Turner Gates v. Jones 767 Gawler v. Standerwick 437 Gayer v. Wilkinson 1189 Gaynor v. Wood 983 Geary v. Gore Bank 249 v. Norton 695 Geddes v. Pennington 142 Gedge v. Traill 635, Gedye v. Montrose Gee v. Pritchard Gent v. Harrison Gervais v. Edwards Gervis v. Gervis Gibbons v. Caunt 94: v. Dawley 389 ». Hills 441 v. Maltyard 764, 765 Gibbs and West’s Case 828 ». Daniel 227, 229, 230 ». Lawrence 931 Gibson v. Bolt 443 v. Gibson 944, 946 v. Ingo 529 v. Jeyes 227, 229 v. Patterson 584 v. Seagrim 429, 434 Giffard v. Hart 633 Gifford, ex parte 89, 248, 365 Gilbee v. Gilbee 1140 Gilbert v. Sykes 211 Giles v. Giles 126, 128 Gill v. Attorney-General 1077 v. Shelley 905 Gillespie v. Alexander 70, 979 | xxvil Gillespie v. Hamilton 496 Gillett v. Peppercorne 148, 23] v. Wray 196 Gillies v. Langlands 999 Gillrie, re 1116 Gilman v. Daunt 440 Gilpin v. West 238 Girdlestone v, North British &c. Co 1228 Girling v. Lee ~ 396 Gittings v. McDermott 905 Gladdon v, Stoneman 631 |Gladstone v. Birley 1034, 1035 v. Mussurus Bey 732 ». Ottoman Bank 732 Glegg v. Legh 1228 v. Rees 743, 857, 873 Glengall, Earl of v. Barnard 961, 973 Glenorchy v. Bosville 785 Glissen v. Ogden 221 Gloucester, Mayor of v. Wood 910 Glubb »v, Attorney-General 774 Glyn v. Duesbury 611 Glynn v. Scarwin 451, 457 Goddard v. Carlisle 225, 230 v. Hodges 342 v. Keate 488 . Snow 191 Godfray v. Godfray 261, 916 Godfrey v. Littel 457 v. Saunders 323 Godsal v. Webb 537 Goff v. Lister 307 Goldney v. Crabb 913 Gold v. Teague 995 Goldicutt v. Townsend 142, 267, 575 792 Goldsmid v. Goldsmid : 182 : v. Tunbridge Wells Co. 688 Goldsmith v. Bruning 186 v. Goldsmith 962 v. Russell 265 Goleborn v. Alcock 37 Gomm »v. Parrott 303 Goodall v. Harris 1116, 1122, 1124 Goodchild v. Ferrett 396 Goodfellow v. Burchett 973 Goodhue v. Widdifield 255 re 4 Goodier v. Ashton 834 Goodlad v. Burnett 927 Goodman ». Grierson 825 ». Sayers 94, 1206 v. Whitcomb 494, 499, 500 Goodright v. Parker 796 Goodwin v. Finlayson 927 ». Goodwin 956 v. Williams 265, 269, 660 Goodwyn, ex parte 33 INDEX TO CASES CITED. Gray v. Chiswell 114, 508 v. Coucher 314 v. Mathias 213, 524, 525, 527 v. Stanford 650 Gray, Lord, v. Lady Gray. 1021 Graydon v. Hicks 197, 200, 1025 Great Luxemburg Rail.Co. v. Mag. nay 243 Great Western Rail Co. v. Birming- ham Rail Co 918 Greatly v. Noble 1181, 1182 Greatorex v. Cary 944 Greatrex v. Greatrex 492 Great Whale Busy M. Co., re 752 Greaves v. Powell 399 Green v. Baverstock 207 v. Belchier 902 v. Bridges 1105, 1107 v. Farmer 335, 377 v. Folgham 716 v. Green 403, 936, 939, 942 v. Howard 764 v. Ingham 877 v. Lowes 671, 718 v. Marsden 917 v. Nixon 134 v. Pigot 437 v. Pledger 669 v. Smith 592 v. Spicer 750 v. Stephens 785 v. Wynn 251 ex parte 1125 Greenaway v. Adams, 534, 602, 604 Greenfield v. Edwards 149, 154, 155, 245 Greenlaw v. King 243 Greenshields v, Barnhart 11 Greenway, ex parte 48, 58, 59, 60, 82 Greenwood v. Firth 393 v. Greenwood 96, 261 v. Penny 936, 937 Greetham v. Colton 1007 Gregor v. Kemp 191 Gregory v. Gregory 240, 1070 v. Pilkington 109 v. Mighell 572 v, Wilson 103, 1093, 1096, 1105 Grenfell v. Dean of Windsor 866 Grenville Murray v. Clarendon 720 Gresley v. Adderley 633 v. Mousley 227, 228 Gretton v. Hayward 943, 956 Grey v. Pearson 928 . Manock 795 Grier v. Grier 785 Grierson v. Eyre 382, 457 Griesback v. Freemantle 1001 XXVili Gordon». Atkinson 997 v. Calvert ~ 248 v, Eakins 817 v. Gordon 91, 98, 94, 156 v. Graham 845 ». Johnston 820 ». Lothian 304 v. Young 273, 274 re 1141 Gore v. Gibson 162 v. Stackpole 834 Goring v. Bickerstaff 860 ». Nash 518, 790 Goss v. Lord Nugent 111 v . Tracey 133 «Gossmour v. Pigge 181 Gott v. Atkinson 398 ». Gott 865) Gotwalls v. Mulholland 266,273 Gough v. Butt 923 Gould v. Hamilton 577 v. Okedon 167 v. Robertson 856 ». Tancred 817 Gourlay v Somerset 1209 Gout v. Aleploglu 707 Gower v. Mainwaring 921 Gowland v. De Faria 258 ». Garbutt 832 ‘Grace v. Webb 202) Gradon v. Hicks 1090 Graffety v. Humpage 906) Graham v. Chalmers 309 ». Graham 985 v. Johnson 877 v. Londonderry 1170 ». Northen Rail. Co 688} v. O’Keefe 269) ». Oliver 588) ». Yeomans 237 Granard, Earl of, », Dunkin 700 Grant ,v. Austen 870 ». Brown 568 v, Grant 1100, 1222 v. Lyman 905 ». McDonald 422 v. Mills 858, 1039, 1040 », Munt 603 Grantham v. Hawke 228 Granville, Lady, v. Duchess of Beau. fort 1025 Grave v. Salsbury 973 Gravenor v. Hallum 767 Graves v. Dolphin 748 ». Griffith 1222 v. Henderson 225 v. Smith 225 ». White 141 Grieves v. Case 773 Grievson v. Kirksopp Griffies v, Griffies Griffin ». Griffin Griffith v. Buckle v. Edwards v. Hood v. Ricketts . Rogers v. Spratly Griffiths v. Evan ». Porter Grigby v. Cox Grigg v. Cocks ». Staples Griggs v. Gibson Grimstone v. Bruce ex parte Grisley v. Lother Grissell v. Swinhoe Grogan v. Cooke Groom v. Booth Grosvenor v. Duston Grove v. Young Grover v. Hugell Groves v. Perkins Gryls ex parte e Guardhouse v. Blackburn INDEX TO ¢ 992 476 1029 784 654. 1163 856, 993, 997 1025 167, 174, 256 898 249 1182 1052 191 943 1097, 1107 1137, 1140 186 947, 949 270, 273 1041 941 886 240, 243 96, 149, 243 240 125 Guardians Stokesly Unionv. Strother 155 Gude v. Worthington Guelph v. Canada Co Guest v. Homfray Gulby v. Cregoe Gummerson v. Banting Gullan v. Grove Gunter v. Hasley Guy v. Pearkes ». Sharp Gwillim v. Stone Gwynne v. Heaton H. Habershon v. Blurton v. Vardon Hack v. Leonard Hadow v. Hadow Haffey v. Haffey ' Hagarty v. Hagarty Haggart v. Allen Hagger v. Payne Haigh v. Kaye 217, 742, 762, 1016 2 921, 922 1253 586 916 42, 607 78 566, 571 270 977, 982 604 175, 255, 258, 262 263 512 768 1104, 1105 1082 1218 1195 582 1 gar ex parte 826 Hakewill, re 1119 Haldenby v. Spofforth 829 Hale v. Cox 430 v. Harrison 367 XXI1X ASES CITED. Hale v. Saloon Omnibus Co. —.278, 619 v. Thomas 1100 v. Webb 73, 348 Hales v. Darrell 985, 988 v. Van Berchem 569 Halfhide v. Fleming 545 Halford v. Hetch 488 Hall v. Hall 494, 497, 1116 v. Hallett 243 v. Hardy 1212 v. Hill 945, 946, 959, 982, 990 v. Luckup 905 v. Noyes 240 & Kean v. Potter 186 v. Smith 313, 584 ». Warren 934 ex parte 161 Hallet v. Bousfield 364 Hallows v. Ferme 149 Halsey v. Grant 558, 586, 589, 603 Haly v. Goodson 722 Hamer v. Tilsley 288 Hames v. Hames 706 Hamil v. White 794 Hamilton ». Denny 1043 v. Hamilton 266 v. Hector 1196 v. Hodsdon 905 v. Marks 611, 612, 614 v. Royse 313 v. Watson 154 v. Wright 237, 240, 241 Hammersley v. De Biel 188, 574, 791 Hammond v. Neame 1082 v. Smith 985 Hampden v. Hampden 179 ‘Hampshire v, Pierce 125, 126 Hanbury v. Hanbury 973 v. Hussey 474 v. Litchfield 313, 586 v. Walker 1105 \Hanby v. Roberts 408, 410, 411, 413 Hankey v. Smith 337 . v. Vernon 654 Hannah v. Hodgson 170, 222 Hannam v. Sims 925 Hanning v. Ferrers 285 Hansard v. Robinson 60, 63, 64 Hanson v. Gardner 644, 645, 691 v. Keating 41, 1188 v, Meyer 1033 ex parte 340, 858 Harbert’s Case 354 Harbin », Darby 237 », Masterman 772 Harcourt v. White ‘ 382 Harden v. Parsons 1070 Harding v. Glynn 77, 83, 895 xxx Hardingham ». Thomas Hardwick v. Mynd v. Wind Hardy v. Martin ex parte Hare v. Beecher v. Shearwood Harford v. Lloyd Hargreaves v. Rothwell Harland v. Trigg Harkness v. Conway Harman v. Richards Harmer v. Plane Harms v. Parsons Harmood v. Oglander Harnett v. Yielding 106, 534, 536, 1 8TT, Harold v. Wallis Harrington v. Duchatel v. Long Harris v. Barnes ». Cotterell ». Harris v. Ingledew v. Pepperell ». Tremenheere Harrison v. Armour v. Frith . Gardner Good Guest Gurney Harrison Lord North . Nettleship . Southcote v. Tenant Hart v. Middlehurst Hartley v. Ostler v. Rice v. Russell Hartly v. Hitchcock Hartopp v. Hartopp Hartwell v. Hartwell Harvey v. Aston v. Blakeman v. Cook v. Harvey v. Montague ». Mount v. Wood Harwood v. Fisher ». Tooke Haslewood v. Pope Hastee v. Couturier Hatch v. Hatch Hatchett v. Pattle Haven v. Middelton esssesse8 194, 196, 197, 199 ». G INDEX TO CASES CITED. 959|Hawes v. Wyatt 72\Hawarden ». Dunlop 374|Hawke v. Milliken 1095| Hawkes v. Saunders 995|Hawkins v. Allen 1152 ». Blewitt 568) v. Day 105] v. Freeman 320) v. Holmes 916|Hawkshaw v. Parkins 480|Hawthorn v. Sheddon 265, 266|Hay v. Palmer 695|Hayden’s Case 205\Haynes v. Littlefear 401, 41] v. Mico ,|Hayward v. Angel v. Dimsdale 402, 631)Haywood v. Cope 212, 520, 525) v. Waring 878, 880) ex parte 774|Head v. Goodlee 886) ». Randall 1062)/Headley v. Readhead 354|Heald v. Hay 106, 107|/Heales v. McMurray 227, 230|Healey v. Daniels 311|/Heapy v. Hill 301|Heard v. Stanford 205, 596/Hearn v. Baker 686, 721/Heath v. Chapman 166, 174 v. Hall 655, 664 v. Lewis 945 v. Perry 80 v. Samson 337 568, 571 718 401, 441 352 4 436 985 1097, 1104 526 149, 150, 578 1033 1032 293 905, 906 401 868 816 821 584 31 439 770 876 203 437 496 654|Heathcote v. North Staffordshire 529| Railway Co. 499, 500|Heatley v. Thomas 784|Heaton v. Dearden 981| Hedges v. Everard 192, 211 v. Harper 878, 880/Heenan v. Dewar 1033)Hele v. Bexley 141, 965); Hemings v. Pugh 212)/Hemming v. Clutterbuck urney 1075| Hemmings v. Munckley 93, 94|Hender v. Rose 1128, 1165)Henderson v. Brown 319 v. Eason 174 v. Lacan 340!Hendrick v. Wood 596, 655 1183 475 603 913 685 829 330 981 979 199 951 823 476 141 516 1190|Henkle v. Royal Assurance Co. 111, 189, 262|Henley v. Cooke 41, 45|Hennessey v. Bray 99, 100|Henry v. Burness 217, 230, 235 ». Simpson 73\Hensman v. Fryer 1107! Hepworth v, Hill stot 206 916 410, 413 405 INDEX TO C Herbert’s Case 1130 Herbert v. Lownes 133 v. Salisbury, &c. R. R. Co. 1094 re 908 Hercy v. Birch , 490, 548 Hereford v. Adams 764 v. Griffin 698 Herne v. Meyrick 413 Heron v. Heron 221, 222 v. Newton 1025 Herring v. Clark 1146 Hertford v. Boore 584) ». Lowther 977 Hervey v. Hervey 74 Hesse v. Brant 227 Hewitt v. Foster L072 ». Loosemore 293, 312, 316)/Hitchcock v. Giddings 99, 100, 102, 103 v. Wright 997|Hitchens v. Birks 631 Hewson v. Fryer 49|Hixam v. Witham 398, 399 v. Smith 237|Hoare v. Brembridge 18, 133 Heyman v. Dubois 853 v. Contencin 114 Heydon v. Heydon 512/Hobart v. Countess of Suffolk 1017 Heysham v. Heysham 1128|/Hobbs v. Norton 34, 285 Heywood, ex parte 377|Hobby v. Collins 999 Hibbard v. Lambe 1080\Hobday v. Peters 148, 225, 231, 232, Hibbert ». Cooke 1044 234 v. Hibbert 490, 906|/Hobhouse v. Holcombe 625 Hickens v. Congreve : 504|Hobson v. Blackburn 416 Hickes v. Cooke 244 v. Sherwood 475, 625 Hickman v. Lawson 1201|Hockley v. Mawby 918, 923 Higgins v. Joyce 227|Hodges v. Hodges 446 v. Samels 143, 560, 578 v. Peacock 977 Higgs v. Northern A. Tea Co. 877 v. Smith 618 Highway v. Barnes 939 v. Waddington 72. Hildersdon v. Grove 926|Hodgson v. Bective 997 Hills v. Moore 632 v. Murray 669 Hill v. Barclay 1093, 1096, 1105, 1106 ». Shaw 250, 365, 373 y. Bishop of London 1017\Hogg v. Kirby 695, 705 v. Boyle 752|Hoggart v. Cults 611 v. Buckley 588 v. Scott 586 v, Caillorel 877|Hoghton v. Hoghton 222 v. Chapman 448/Hoig v. Gordon 464 ». Cock 997|Holbird v. Anderson 273, 855 v. Curtis 390|Holbrook v. Sharpey 518 v, Downton 74\Holder v. Chambury 66, 481, 485, 486 Hill v. Lane 18, 133|Holderstaffe v. Saunders 735 v. Paul 867|Holdich v. Holdich 945 ». Simpson 417, 419, 420, 1005,/Holdsworth v. McCrea 698 1051)Hole v. Thomas 679 », South Staffordshire Railway Holford v. Wood 980 Co. 330, 1246|Holiand v. Prior 421 v. Thompson 696|Hollinrake v. Lister 1097, 1104 v, Turner 436, 655|Hollis v. Claridge 1033 v. Walker 35, 418 v. Edwards 568 ex parte 243|Holloway v. Clarkson 906 Hilliker, re 1154 v. Headington 267, 577, 744, Hills v. Croll 725 789, 792, 865 Hilton v. Barrow 525 v, Millard 265, 269 ASES CITED. XXX1 Hilton v. Eckersley 205 v. Lord Scarborough 648 ». Woods 606 Hinchcliffe ». Hinchcliffe 972, 975, 979 Hincksman v. Smith 258 Hindley v. Emery 600 v, Westmeath 1197 Hindson v. Weatherell 230 Hine v, Dodd 308, 316 Hinton v. Hinton 167 ». Pinke 441 Hinxman v. Poynder 916 Hippesley v. Spencer 676, 820 Hirst v. Denham 707 : v. Tolson 348 Hitch v. Wells 887 XXxil Holloway v. Radeclitte 1000 Hollywood v. Waters 308 Holman v.Johnson 3l v. Loynes 227, 229, 230, ey Holmes v. Coghill 401 v. Custance 126, 127 v. Dring 1064 v. Higgins 515 v. Holmes 35 v. Matthews _ 111 v. Penney 266, 269, 792 v. Powell 311 Holmes’ Estate 225, 230 Holroyd v. Marshall 861 Holt v. Corporation of Rochdale 688 v. Holt 237 Holtzapffell v. Baker 80 Holworthy v, Mortlock 654 Home v. Pillans 439 Honner v. Morton 1189, 1190 794 669, 719 Honor v. Honor Hood v. Aston v, Hood 405 v. Oglander 106 Hook v. McQueen 44, 577, 582 Hooley v. Hatton 977 Hooper v. Brodrick 730 v. Cook 286 ex parte 571, 826 Hope v. Beard 43 v, Carnegie 427, 660, 664, v. Hope 733 v, Liddell 37, 303, 1052 Hopgood v. Parkin 1060 Hopkins v. Hopkins 739 ex parte 1116 Hopkinson v. Rolt 304, 846 Hopper v. Conyers 390 Hopwood v. Hopwood 963 Hore v. Becher Horn ». Gilpin 99, 100, 102 333 v. Thompson 1096, 1106 Hornblow v. Shirley 586 Hornby » Matcham 179, 818 Horncastle v. Charlesworth 474 Horne v. Barton 784 v. Horne 438, 1010 v. London & N, W. Rail Co. 540 v. Pringle 1076 Horneby v. Finch 1025 Horridge v. Ferguson 905 Horsfall ». Thomas 149 Horton v. Sayer 495 v. Westminster Comrs 213 Horwood v. West 916 Hoskins v. Hoskins 1025 INDEX TO CASES CITED. Houghton v Harrison 444 v. Houghton 507 Hovenden v. Annesley 751 How v. Tenants of Bromsgrove 645 v. Synge 346 v. Vigures 834 v. Weldon 175, 177, 256 Howard v. Ducane 244 v. Harding 244, 838 v. Harris 825, 831 v. Howard 389 v. Papera 631 Howarth v. Deem 313 ». Dewell 917 Howden v. Rogers 1221, 1223 Lord, v. Simpson 210 Howe v. Earl of Dartmouth 438 v. Hunt 561, 578, 600 Howells v. Jenkins 937, 941 Howkins v. Jackson 794. Howland v. Norris 603 v. Stewart 111 Howson v. Hancock 216 Hoy v. Masters 919 Huddlestone v. Huddlestone 461 Hudson v. Bennett 708, 715 v. Hudson 1026 Hue v. Richards, 499 Huggins v. Alexander 949 Hughes v. Chester &c. Rail Co, 4 v. Garner 301 v. Jones 42 v. Kearney 1035, 1038, 1039 v. Morris 569 v. Science 1112, 1122, 1124 1130 v. Wells 74 v. Williams 429, 818 ex parte 243 Huguenin v. Baseley 167,175, 181, 220 231, 629, 650, 727 Hulme »v. Chitty 45 v. Coles 251, 372 v. Tenant 1180, 1182, 1183 Hume v. Edwards 441 v. Richardson 1063 Humphreys v. Harrison 676, 820 v. Pensam 296 Humpries v. Brogden 690 Hunsden v. Cheney 188 Hunt v. Beach 977 v. Hunt 651, 655 v. Matthews 179 v. Peake 690 v. Scott 438 v, Spencer 583 Hunter v, Atkins 230, 234 v. Belcher 330, 387 LNDEX TO CASES CITED. XXxiil Hunter v. Daniel 879, 880|\Jackson v. Leaf 391 Hurd ». Billinton 526 ». Lever 81 Hurst v. Beach - 435, 436, 978, 982 ». Lomas Q77 Hutchinson v. Edmison 400 v. Petrie 1218 v. Massareene 628|Jacobs v. Richards 161 Hutton v. Rossiter 141|Jacobson v. Williams 1189 v. Simpson 380/James v. Allen 767 Hyde v. Parratt 438, 637 v. Bydder 537 v. White 262 v. Dean 1029 v. Whitfield 1218, 1223 ». James 707 Hyheshaw v. Corpor. of Morpeth 764 v. Kynnier 337, 338 Hylton v. Hylton 186, 235, 236 v. Lichfield 313 Hyman v. Root 304, 847 v. Morgan 136, 1086 v, Shaw 328, 330 I. v. Smith 906 ex parte 237, 238, 240, 243 Imbert, ex parte 342/Jameson v. Stein 139, 574, 575, 791 Imperial Mere. Credit Association Janes v. Jackson 831 v. Coleman 1053\Jarrold v. Heywood 702 Inchbald v. Robinson 686 v. Houston 698 Inchiquin v. French 743|/Jarvis v. Chandler 657 Incledon v. Northcote 944 v. Duke 139, 142, 149 Incorporated Ch Build. Soc. v. Coles 772|Jason v. Eyre 825 Society v. Richards 779/Jauncey v. Knowles 500 Ingham v. Bickerdike 1115|Jeacock v. Falkner 985 Ingle v. Partridge 1071\)Jee v. Thurlow 1196 v. Richards Inglis v. Gilchrist Innes v. Jackson v. Sayer 74, 779 Tutsenstonal Contract Co., re 91, 101 Inskip’s Case 1018 eres v. Twyne 756, 1001 Irby, 1146 Treland v. Wilson 455): Irnham v. Child 89, 177 Irvin v. Ironmonger 401. Irvine v. Young 386, 387 Irwin v. Freeman 35, 265 764 769 Isaac v. De Friez v. Gompertz v. Humpage 657 Ive v. Ash 212 Ives v. Metcalfe 1199, 1235 Ivie v. Ivie 530 Ivy v. Gilbert 902 v Kekewich 1228 Izod v. Izod 921 J. Jackman v. Mitchell 278, 520, 526 Jackson v. Bowman 274, 793 . Butler 552) . Cator 287, 607 . Cocker 549 283 180, 495, 1023 . Duchaine . Jackson osseege 240 845 1168 Jefferson v. Bishop of Durham 651, 673 Jeffery v. Stephens 581 Jefferys v. Jefferys 267, 537, 789, 792, 865 Jeffs v. Wood 337, 338 Jegon v. Vivian 606 Jekyll v. Wade 1202 Jenkins v. Hiles 1004 ». Hughes 927 v. Kemis 82 v. Lord Clinton 908 ». Parkinson 1218 Jenkinson v. Pepys 106 Jenkyn v. Vaughan 269 Jenner v. Jenner 222, 260, 794 Jennings v. Broughton 142 v. Moore 72, 74, 620 Jerrard v. Saunders 37, 301 Jervis v. White 525, 526 Jervoise v. Jervoise 900 v. Duke of Northumberland, 757 783, 787 Jesse v. Roy 347 Jessop v. Watson 997 Jeston v. Key 789 Jesus College v. Bloom 49, 50 Case 764 Jew v. Thirkwell 352 v. Wood 618 Jewson v. Grant 70, 374 v. Moulton 267, 792, 858, 1186 1187, 1189 XXXIV INDEX TO CASES CITED. Jodrell v. Jodrell 1082, 1170|Jones v. Tripp 225 Johne’s Case 343, 1176 v. Westcombe 1025 Johnson v. Arnold 992 », Williams 315, 766 », Aston 635 re, 429, 1113 », Atkinson 618|Jope v. Morshead 474 v, Child 413/Jordan v. Lowe 913 v. Curtis 384, 386 v. Holkam 202 v. De la Creuze 437 v. Money 574 v. Gallaher 1180, 1189/Joslin v, Brewitt 1025 v. Johnson 68, 69, 1190|Joy v. Campbell 1075, 1077 ». Kennett 1010 v. Joy 530 ».Lord Harrowby 416, 781/Joyce v. De Moleyns 37, 300 v. Medlicot 162\Judd v. Pratt 940 v, Mills 437, 639|Juliana, The 256 v, Ogilby 211 v. Shrewsbury and Birmingham) K. Railway Co. 540) v. Smith 447|Kay v. Crook 574, 791 v. Twist 1025 v. Johnson 541 v. Woods 781/Keane v. Roberts 419, 420, 421, 1005 Johnston v. Johnston 221|Keate v. Allen 187 ». Rowlands 919/Keating v. Sparrow 1110 Johnstone v. Beattie 1123, 1124/Keble v. Thompson 1077 », Swann 766'Keech v. Hall . 820 re, 1114 v. Sandford 237 Jolland v. Stainbridge 308, 316/Keenan v. Anderson 847 Jones v. Alephsin 1221|Keily v. Monck 193, 199 v, Bank U. C. 814/Keir v. Leeman 211 v. Bassett 653/Kekewich v. Manning 537 v. Barkly 277, 278 v. Marker 678 v. Beck 839|Kelly v. Morris 698 v. Bennet 1213 v. Power 803 rv. Caswell 206 v. Solari 99, 100, 109 ». Earl of Suffolk 1090 v. Sweeten 577 v. Harris 1180, 1181'Kelson v. Kelson 265, 295, 296 v: Higgins 1254|Kemble v. Kean 725, 731 2. Hughes 653/Kemp v. Finden 365 v. Jones 473, 666, 880, 1062 uv. Mackrell 654 v. Lewis 7 r. Pryor 5, 34, 36, 48, 58, 526 v. Lock 744 t. Westbrook 850, 851, 852 v. Marsh 2067, 276, 792|Kendall ». Granger 767 v. Martin 78, 191, 232 ex parte 114, 409, 431, 1046 v. Meredith 831)/Kendrew +. Shewan 472 v. Morgan 355, 356, 783|Kennedy v. Earl of Cassilis 664 wv. Noy 501 v. Green 312 v, Peppercorne 1047. v. Panama, &c. Co. 139 v. Price 227. vB gwick 936 v. Provincial Insurance Co. 151;Kennell r. Abbott 128, 129 v Powles 302 Kenney rc. Brown ” 988 v. Ricketts 2538' Kennington r. Houghton 334 t. Roberts 227, 228 Kensington r. Bouverie 816 v. Roe 865) v. Dolland 1178 wv Selby 447, 448 Lord, v. Mansell 1230 ec. Smith 312, 849, 851 ex parte 826 v, St. John’s College 1210\Kent r. Elstop 1205 te. Statham 576, 579, 580, 581 v. Freehold, &e. Co. 149, 1249 . Thomas 28,299, 611! ex parte "1125 t, Torin 923' Kenyon ev. Worthington 394 INDEX TO CASES CITED. Ker v.. Wauchope 936 Kerby v. Kerby 818 Kerr v. Leishman 471 Kerr’s Policy, re , 826 Kettleby v. Atwood 789) Kettlewall v. Barstow 1228 Key v. Bradshaw 192, 193 Keys v. Williams 826) 2 1 1083 1209, 243 231 Kidney v. Coussmaker 130, 399, 95 : 95 Kildare, Earl of v. Eustace Kill v. Hollister Killick v, Flexuey Kimber v. Barber Kimberley v. Dick 1211 Kimberley v. Jennings 725 Kimpland »v. Courtney 860 Kinder v. Jones 693 Kine »v. Balfe 572 King v. Burr 1231 .v. Hamlet 619 v. Keating 238 ». King 670 v. Savery 132 v. Smith 676, 677, 820, 834. v. Wilson 584, 585, 588 King, The, v. The Free Fishers of Whitstable Kingston, ex parte Kingham », Lee Kinnoul v. Money Kinsman v. Kinsman 379) 1063 381 831 317, Kintrea v. Charles 515) ‘Kirby v. Carr 501 Kirk v. Clark 1163, v. Eddowes 959, 961, 963 v. The Queen 720) Kirkbank v. Hudson 773 Kirkham ». Smith ~ 355 595, 1001 244 Kirkman v. Miles Kirkwood v. Thomson Kirwan v. Daniel 856) Kisch v. Venezuela Rail. Co. 143, 149 Kitchen v. Murray 306 Knatchbull v. Greuber 42) Knight v. Bowyer 227, 879, 880 v Bulkely 868 v. Cameron 199) ». Ellis ‘ 913 ». Knight 915, 918, 919 ». Lord Plymouth 1062 v. Marjoribanks 167, 238, 240, 241, 244 Knight’s Case 351 Knott v. Cottee 919, 1114 ». Morgan 706 ex parte 1031 XXxXV Knox v. Symmonds —1199, 1204, 1205, 1206 Knye v. Moore 529, 552 Kruzer v. Wilcocks 377 L ‘Labouchere v. Dawson 712 Lacey, ex parte 237, 238, 241, 243 v. Ingle 304 Lackersteen v. Lackersteen 112, 119 Lacon v. Mertins 566, 567, 569, 571, 572 Laidlaw v. Liverpool &.In. Co. 153 Laird v. Birkenhead Railway Co. 1248 Lake v. Brutton 250, 373 v. Craddock ' 1023, 1043 v. De Lambert 1080 Lakin, ex parte 1125 Lamb v. Lamb 956 Lambert v. Peyton 784 Lambeth Charities, re 764 Lamlee v. Hanman 187, 188 Lamont v. Lamont 237 Lampert v. Lampert. 1163 Lampet’s Case 796 Lamplugh v. Smith 263 Lancaster & Carlisle Railway Co. vo, N. W. Railway Co. 596 Lance v. Aglionby 403 v. Norman 191 Landell v. Baker 480 Lane v. Debenham 900 v. Dighton 1018, 1027, 1028 v. Husband 743, 856 v. Jackson 37, 303 v. Newdigate 542, 688 (Lanesborough v. Jones 337, 338 Langford v. Barnard 811 Langham v. Nenny 901, 1185 v. Sandford 436 Langley v. Brown 111 v. Karl of Oxford 1006 » Fisher 178 v. Hawk 631 Langlois v. Baby 31, 215 Langstaffe v. Fenwick 96 v. Mansfield 578 Langston v. Boylston 612, 613, 615 v. Langston 905 ». Ollivant 1077 ex parte 826 Langton v. Horton 861, 863 v. Waite 850 Lanoy v. Duke of Athol 429, 1128 Lansdowne v. Lansdowne 380, 382, 445 Larabrie v. Brown cor Largan v. Bowen XXXVI Larkin ». Good Larner v. Larner Lassence v. Tierney 267, 574, 792, 943 Latch v. Bright 310) v. Forlong 838) Latham v. Crosby 141 Latter v. Dashwood 817 1090 Laughter’s Case 250 Law v. East India Co. Law v. Law 186, 212 Lawes v. Bennett : 995, Lawless v. Mansfield 226, 227, 228 Lawrence v. Goldsworthy 246) v. Judge 676 ». Lawrence 944 », Smith 695, 697 Lawson v. Laud 577 ». Lawson 446) ». Stitch 441 1201 93 826) ' 365, 346 and Hutchinson, re Lawton v. Campion Layard v. Maud Layer v. Nelson Lea v. Barber ». Hinton 432 Leach v. Shaw 461 Leader v. Purday 698 Leaf v. Coles 501 Leake v. Leake 1222 v. Robinson 439 Leary v. Rose 43, 285 v. Short 500 Leather Cl. Co. v. Am. Leather Cl. Co. 710 Leather Cloth Co. v. Lorsont 205 Lechmere v. Charlton 806 v. Earl of Carlisle 745, 960) v. Lavie 927 v. Lechmere 997 Lee v. Alston 49, 382 v. Egremont 940 v. Haley 708 v. Jones 154, 155 v. Page 495) ». Paine 977, 982 v. Prieaux 1173, 1176 Leach v. Trollop 530 Lee v. Sankey 1072 Leeds, Duke of v. New Radnor 66, 459 481, 485 ». Powell 66, 459 vo. Strafford 457 Leeke v. Bennett 438, 640 Leewing v. Sherratt 439 Lees v. Massey 439 v . Mosley 905 v, Nuttall 231, 232, 1030 Legard v, Hodges 1196 INDEX TO CASES CITED. 44{Legard v. Johnson 1196 441|Lege v. Goldwire 794 Leicester v. Rose 245, 278 Leigh v. Barry 1070 v. Macaulay 634, 635, 1051, 1052 v. Norbury 905 Leighton v. Leighton 649, 885, 886 LeMaitre v. Bannister 917 Leman v. Whitley 1013 Lench v. Lench 1057, 1052 Le Neve v. Le Neve 307 Lenon v. Napper 67, 559, 583 Leonard v. Earl of Sussex 785 v. Leonard 91, 93, 94, 100, 156 Leslie v. Baillie 100 v. Thompson 143 Lester v. Foxcroft 572 L’Estrange v. L’Estrange 866 Le Targe v. De Tuyle 111, 821 Lethbridge v. Thurlow 972, 973 Lethulier v. Castlemaine 454 Le Touche v. Lucan 857 Lett v. Commercial Bank 172 v. Morris 872 Letton v. Godden 648 Leuty v. Hilas 103, 112 Levy v. Baker 160 v. Levy 886 v. Rutley 698 Llewellyn v. Cobbold 191, 235 Lewers v. Earl of Shafterbury 600 Lewin v. Okeley 45 Lewis v. Chapman 729 v. Fullerton 698 v. Hillman 230, 231, 240 v. King 936 v. Maddocks * 1027, 1052 v. Matthews 754 v. Paterson 772 v. Rees 296, 297 Leyland v. Illingworth 143 Liddard v. Liddard 916 v, Lopes 346 Liddell v. Norton 242 Light v. Light 1146 Lightfoot v. Heron 163 Like v. Beresford 1190 Lilia v. Airey 1163 Lilly v. Hay 767, 905 Lincoln, Countess of v. Newcastle 747 785, 788 Lady, v. Pelham 905 . v. Wright 217, 254, 576, 580, 1018 Lindenau v. Desborough L561, 153 Lindon v. Sharp 271 Lindsay ». Lynch —_ 572, 573, 577, 581 Petroleum Ojl Co, v. Hurd 139 143, 148 INDEX TO CASES CITED XXXV1i Lingard v. Bromley 376|Longman v. Winchester 698, 699 Lingen v. Simpson 492|Longmate v. Ledger 166 v. Sowray : 499) Longmore v. Elcum 1082 Lingwood »v. Stowmarket Co. 688|Lord v. Sutcliffe 978 Linton v. Hyde 1013|Loraine v. Thomlinson 346 Lister v. Hodgson 758|Lorimer v. Lorimer 379 v. Lister 488|Loring, ex parte 1039 v. Turner 272, 276|Loscombe v. Russell 499, 503, 504 Little v. Neil 923 v. Wintringham 765, 778 Livingston v. Acre 164|Losee v, Armstrong 468 v. Ralli 495|Lousada v. Templer 52 Lloyd v. Attwood 242|Lovat v. Lord Ranelagh 1107 v. Banks 315|Lovell v. Galloway 1232 ». Branton 195, 196, 198/Loveredge v. Cooper 39, 1013 v. Cheatham 868|Low v. Barchard 174 ». Cocker 113, 794 v. Burron 795 v. Collett 584|Lowe v. Peers 192, 193, 1102 ». Gurden 669 v. Thomas 929 v. Johnes 358|Lowndes v. Cornford 614 v. Loaring 553, 554 v. Lane 142, 143 v. Lloyd 194.§202, 208, 440, 767 v. Lowndes 444 v, Passingham 300, 302|/Lowson v. Copeland 1064 v. Pughe 1170|Lowther v. Carlton 301, 320 v. Read 1018, 1022 v. Lowther 231, 553 v. Spillet 739, 1018\Loxley v. Heath 574, 791 Lobley v. Stocks 978, 981|Lucas v. Commerford 541 Lock v. Bagley 785 v. Lucas 1169, 1170, 1173 ». Lynam 492 ». Warswick 99 Lockart v. Hardy 832|Lucy, ex parte 93 Lockey v. Lockey 380, 572/Ludlow v. Greenhouse 601 Locking v, Parker 751) Luff v. Lord 238 Lockley v. Eldridge 348/Lumb v. Milnes 1174, 1176, 1178 Lockton v. Lockton 894/Lumley v. Wagner 587, 539, 596, 651 Lockwood v. Ewer 850, 852 731 Loffus v. Maw: - 34, 574|Lundy v. McCulla 335, 336 Logan v. Fairlie 1127|Lupton v. White 331, 460 », Wienholt 535|Luttrell v. Lord Waltham 178, 181 London and Birmingham Railway Lyddon v. Moss 226, 227, 228 v. Winter 755, 770|Lynn v. Chatres 1039 &c. R. Co. v. Lancashire, &c. ». Colville 977 R. Co. . 691 ». Mitchell 913 C. Bank of Australia v, Lam-|Lyons v. Blenkin 1115, 1118 priere 1184|Lysaght v. Royse 1140, 1141 City of v. Mitford 1107 v. Walker 342 v. Perkins 646 v. Richmond 482 M. v. Nash 541, 605 London, Mayor of v. Russell 979|Maber v. Hobbs _ 191, 743, 873 v. Case 764|Macarthy v. Decaix 99, 91, 99 Londonderry v. Baker 580|Macaulay v. Phillips 1190 Londesborough, Lord v. Somerville 443 __ 0. Sackell 1230 Long v. Rowring : 535|Macbride v. Weekes 584 v. Dennis 192, 196|MacCabe v. Hussey 225 v. Rickets 197 |Macclesfield v. Davis 553 ». Stewart 1057 (Macfarlane v. Murphy 1152 v. Watkinson 906 |Mack v. Petter . _ 698 Longeway v. Mitchell 265, 272|Mackenzie v. Mackenzie 906, 977 1017 ‘Mackinnon v. Peach 978 Longley v. Longley INDEX TO CASES CITED. XXXViii Macklin v. Richardson 701/Marker v. Marker 61179 Mackreth v. Symmons 38, 292, 592, 1018|Marlborough v. Godolphin 83, 28 1035, 1036, 1037/Marples v. Bainbridge 198, 202 1038, 1040)Marquis of Breabalbane v. Marquis of Maclennan v. Heward 321; Chandos 113 Maclure v. Ripley 149 Ormond v. Kyrersley 381 Macnab v. Whitebread 917 Townshend v. Stangroom 89 Maddison v. Andrew 895 111, 113 v. Chapman 440, 941|Marr v. Bennett 313 Madoc v. Jackson 923)\Marriotté v. Marriott 133 Magdalena Steam Nav. Co. re 1248|Marryaits v. White 343 Magee v. London & Port Stanley Rail-|Marsh v. Att. Gen. 772 way Co. 686 v. Lee 304 Magrath v. Morehead 785|Marshall v. Collett 88 Maguire ve Soully 787 vy. Colman 492, 499 Mahon v. McLean 142 ». Lamb 275 Mahon ». Savage 764, 905 v. Ross 707, 708 Main v. Melbourn 569|/Marshall v. Rutton 1180 Mainwaring v. Newman 513, 514)" », Watson 492, 494, 499 Mainwaring’s Settlement, re 784|/Martin v. Drinkwater 979, 982 Mair v. Himalaya Tea Co. 540 v. Headon 600 Maitland v. Backhouse 221, 235 v. Martin 45, 133, 165, 393, v. Irving 221, 235 660, 882 Major v. Lansley 1173 ev, Nicolls 666 Makepiece v. Rogers 330 v. Nutkin 537, 539, 596, 784 Makings v. Makings 359 v. Pycroft 163 Malcolm c. Martin 445 v. Rebow 1025 v. O'Callaghan 196, 199, 626 v. Reid 110 ». Scott 670 v. Wright 696 Malden v. Fyson 588|Martindale v. Booth 271 v. Menill 88, 132 v. Picquot 1041 Malet re 120/Martyn v. Westbrook 519 Malim v. Keighley 916|Mason v. Gardiner 41 Malins v. Freeman 579 v. Goodburne 1239 Malmesbury rv. Malmesbury 112, 794 v. Parker 829 Maloney v. Kernan 231 v. Seney 157 Man ». Ward 133) re 344 Manby v. Robinson 615,;Massenburgh v. Ash 747 Manchester 8., &c., Railway Co. v. The Massey v. Banner 1062, 1063 Worksop Board of Health 685 v. Davies 231, 329 Mangles v. Grand Dock, &c. Co. 210 c. Parker ‘74 Mann +. Burlingham 773|Massingberd v. Montague 206 _». Thompson 439|Master r. Kirton 499 Manning r. Gill 161|Masters r. Masters 412, 767 r. Purcell 441/Mathers r. Lynch 274 c. Thesiger 980|/Matthewson v. Stockdale 698, 699 ___t. Spooner 401|/Matthewman’s Case 1184 Manning's Case 796|Matthews v. Jones 718 Manningford r. Toleman 303 v. Matthews 985, 986 Mansel r. Mansel v4, 76 et. Newby ” 389 Manser r. Back 106 r. Wal 383, 388 Manser's Case 88|Mattison r. Tanfield 909 Mansfield v. Shaw 131|Maturin r. Tredinnick 148, 231 March r. Russell 70/Maude e, Maude "927 Mare rv. Sandford 277, 278'Maunder e. Lloyd 516 ce. Warner | 277|Maundrell r. Maundrell 301 Margetts ¢. 1116] Maundy r. Maundy 138 Marjoribanks 7 Hovenden 74, 76!Maunsell r. White 574, 79 INDEX TO CASES CITED. Maw v. Topham 588 Mawman v. Tegg 703 Mawson v. Stock _ 278 Maxwell v. Montacute 576, 580 v. Port Tennant, &c., Co. 147 Wetenall 443 May v. Bennett 73 v. Hook 663 v. Roper 999 Mayhew v. Crickett 245, 256, 369, 373 Mayor of Southampton v. Greaves 435 Mayott v. Mayott 905 Meacher v, Young 1126 Mead ». Orrery 317, 419, 820, 830 Meadows v. Meadows 132 Medlicott v. Bowes 340 Medworth v. Pope 908 Meggison v. Moore 919 Meliorucchi v. Royal Ex. Ins, Com- pany 337 Mellers v. Devonshire 88 Mellick v. President, &c. of Asylum 767 Mellish v. Mellish 126 » Vallins 407 Menzies v. White 133 Mercer v. Peterson 274 Merchant Tailors’ Co. v. Att. Gen. 782 Merchants’ Bank v. Clarke 266 Meredith v. Heneage 916, 918, 919 Merewether v. Shaw 190, 293 Merrick v. Prov. Ins. Co. 153 v. Sherwood 173, 1152 Merry v, Ryves 182 Mertins v. Joliffe 313 Mesgrett v. Mesgrett 182 Mestaer v. Gillespie 181, 588, 590, Metcalf v. Hervey 51, 1228 v. Pulvertoft 672 Metcalfe v. Archbishop of York _ 632 v. Beckwith 454 Metropolitan Board of Works v. Me- tropolitan R. R. Co. 600 Cos, Society v. Brown 108 Meux v. Bell 312, 877 v. Howell 855 v. Maltby 313 Meyer v. Gregson 346 Mitcklethwait v. Micklethwait 382) Middlecome v. Marlow 267, 792 Middleton v. Clitherow 765 ». Dodswell 631 ». Elliot 818 v. Greenwood 541, 600, 609 v,. Jackson 646 v. Maguay 609 v. Middleton 135 v, Spicer 772, 1015, 1025 Johnson Mignan v. Perry Mildmay v, Mildmay Miles v. Stephens v. Thomas v. Williams Mill v. Hill Millard v. Eyre Millegan v. Cooke Miller v. Att. Gen. », Cook v. Craig v. Harris v. Miller v. Ostrander v, Warmington Millett v. Davy Millington v. Fox Mills ». Banks », Farmer ». Mills Milner v, Milner Milnes v. Slater v. Trench Minet v. Morgan Minshall v. Lloyd Minter o, Wraith Minuel v. Sarazine Mitchell v. English ». Harris v, Hayne v. Reynolds v. Ritchey v. Steward ». Weir Mitchell’s Case Mitcheltree v. Irwin Mitford v. Mitford v. Reynolds Mocher v. Reid Moffat v. Walker Modlen v. Snowball Mogg v. Hodges Mole v. Smith Molesworth, ex parte Molony v. Lestrange Molton v. Camroux Monaghan, re Monck v. Monck », Earl of Thanet Miltown, Earl of, v. Stewart Mocatta v. Murgatroyd v. Mogg Moggridge v. Thackwell XXKXIX Midland G. W. R. Co. of Treland ” 88 794. 89 100 494 859 607 1080 582, 585 588 28 262 132 1114 446, 448, 449 169 455, 457, 474 818 709 902 775, 776, 779 74, 76, 438 125 401 520, 522 444 (1234 271 906 985 365, 369, 371 1209 612, 613 205 1128 689, 1243 1155 1247 583 858, 1040, 1189, 1190 767 661 34, 35 289 578 781 913 753, 775, 776 777, 978, 979 464 1125 227 161 1141 965 xl Mondey v. Mondey. 834|Morrice v. Bank of England 391, 393, 397 Morle v. Cooper 80 398, 660 Monk v. Kyle 821 ». Bishop of Durham 703, 767 Monro v. Monro 1119/Morris v. Ashbee 698 v. Taylor 112 v. Burroughs 221, 936 Montacute v. Maxwell 254, 821 v, Clarkson 180 Montague v. Dudman 735, 1225, 1231 v, Colman 205, 725, 731 v. Flockton 725 wv. Islip 817 v. Montague 963 v. Kearsley 507 Montefiore v. Browne 857 v. Kelley 704 ». Guedalla 969 v. McCulloch 212, 217, 218 Montesquieu v. Sandys 227, 229 v. McNeill 1222 Moodie v. Bannister 394 v. Morris 382 v. Walters 758 v. Wright 698, 702 Moore v. Bank of B. N. A. 309, 311|Morrison v. Arbuthnot 187, 188 v. Blake 582, 585 v. Arnold 884, 886 v. Butler 939, 955 v. Moat 716 v. Clarke 1034 v. Mclean 33, 654 v. Crofton 744 v. Turnour 567 v. Darton 446|Morse v. Roach 890 v. Edwards 567 v. Royal 175, 238, 241 v. Frowd 237|Morse’s Settlement 794 v. Greg 541|Mortimer »v. Bell 207 v. McNamara 317, 672 v. Capper 81, 94, 108 v. Moore 70, 72, 407 v. Orchard 572 v. Paynter 817 v. Shortall 112 ». Riddell 342|Mortlock v. Buller 134, 518, 578, 603 v. Usher 611, 613, 879|Moseley v. Virgin 541 Moorhouse v. Colvin 577 v Ward 939 Moravian Society, re 1080|Moses v. Levi 1072 Mordaunt »v, Thorold 463) v: Macferland 1049 Mordue v. Palmer 1208|Moss v. Bainbrigge 227, 228, 229 More v. Freeman 1165 v. Gallimore 820 v. More 1130|Mossop v. Mason 205, 711 Morey v. Totten 258|Motley v. Downman 709 Morgan v. Annis 133|Motteux v. London Assur. Co 580 - v. Dillon 1112|Moulson v. Moulson 972 ». Evans 228|Mounsey v. Blamire 905 v. Harris 51|Mountfort, ex parte 826, 852, 1113, 1118 v. Higgins 227, 228 1125 ». Lewis 227, 228|Mower’s Trusts, re 839 v. Malleson 745|Moxey v. Bigwood 106, 561 v. Marsack 614, 615|Moxon v, Bright 330 e. Mather 1204, 1206/Muchall v. Banks 879 v. Morgan 438, 939, 953) Muckleston ». Brown 214, 1025 v. Sherrard 397|Muggeridge’s Trusts 784 ; ex parte 243)Mulhallen v. Marum 231, 235 Moriarty v. Martin 915|Mulholland v, Hamilton 855 Morin v. Wilkinson 583; », Williamson 266 Morison v. Moat 492|Mullineux v. Mullineux 451 Morley v. Davison 108|Mullins v. Hussey 583 -v. Matthews 607 v. Smith 442 v. Morley 835, 1062\Mulloy ». Bacher 346 ». Rennaldson 194, 198)Mundy v. Joliffe 572 Morphet v. Jones 568, 571, 572 v. Lord Howe 1126 Morrall v. Marlow 858 v. Mundy 462 Morrell v. Wooten 875|Munns v. Isle of Wight R. Co 624 Morret v. Parke 231, 304, 1029 265, 269 INDEX TO CASES CITED. Murphy v. Abraham INDEX TO CASES CITED. Murphy v. O’Shea 231 Murray v. Bogue 698 v. Elibank 1186 v. Parker 110, 111, 112, 794 Murrell v, Cox 1072 v. Goodyear 578 Myers v. Smith 820 v, United G.& L. A. Co = 877 Myerscough, ex parte 1125 Mc McAlpine v. Howe 111 v. Swift 132 McAnnany v. Turnbull 469 McBurnie, ex parte 267, 792, '793 McCabe v. Hussey 520 McCall v. Faithorne 588 McCann v. Dempsey 225 McCarthy v. Gould 270, 866 McClure v. Evans 966 McConnell v. McConnell McCormick v. Garnett McCrea v. Holdsworth McCrumm v. Crawford 221 100 698 309, 311, 314 McCulloch v. McCulloch 1194 re 1115 McDonald v. Boice 264 v, Ferguson 111 », Garrett 584 v. Hime 818 v. McDonald 311, 827, 1040 ». Neilson 41 ». Reynolds 838 . Richardson 1068 v. Rose 111 re 1136 McDonell v. Beaeon &c. Ins. Co. 158 294 228 v. Hesilrige McElroy v. Hawke McFadden v. Jenkins 653, 742, 745 McGill v. McGlashan 31 McGregor v. Anderson 515 v. Boulton 163 v. Rapelje 221, 790 ». Topham 887 McHenry v. Davies 1184 McIntosh v. Wood 46] McKenna, re 238 McKenzie v. Johnson 49, 328 McKinnon v. Stavert 857 McLachlan v. Tait 440 McLaren v. Fraser 42, 607, 847 McLaughlin v. Whiteside 106, 577 McLaurin v. McDonald 164 McLean v. Longlands 1170 McLeod v. Drummond 417, 419, 420, 518, 830, 1005 McMaster v. Anderson 846 xli McMaster v. Phipps 304 McMurray v. Burnham 304 McNeil v. Cahill 279, 282 McPherson v. Dougan 303, 823 McQuay v. Unity, &., Ins, Co 151 McQueen v. Farquhar 180, 301 McQuesten v. Campbell 311 McRae v. Froom 108, 143, 144 McSherry, ve 161 McSweeny v. Kay 584 McWhirter v. Thorne 274 N. Nab v. Nab 742 Nagle v. Baylor 163 Nairn v. Prowse 1037, 1038 Nandick v. Wilks 784 Nantes v. Corrock 270, 1180 Nash v. Morley ° 767 Natal Invest. Co. re 877 National Bank, ex parte 826 Navulshaw v. Brownrigg 328 Naylor v. Winch 90, 91, 93, 94, 174 v. Wright 794. Neal, Sir Paul’s Case 1170 Neale v. Day 265 v. Neale 93 Neap v. Abbott 106 Neate v. Duke of Marlborough = 272, 1034, 1035 Neatherway v. Fry 439 Needler v. Carnpbell 106, 579 Neeson v. Clarkson 818 Neil v. Bank of U. C. 653 v. Neil 383 Neill ». Morley 161 [Nelson v. Booth 1067 ». Bridges 600 v. Duncombe 161, 1140 ». Stocker 43, 145, 170, 285 Nelthrop v. Hill 72 Nerot v. Burnand 496 Nesbit v. Berridge . 225, 258 v. Murray 1025 v. Tredeneck 1029 Neuman v. Godfrey 1236 Neve v. Pennell 311 Neville v. Fortescue 438 ». Wilkinson 34, 139, 188, 286 Nevills v. Nevills 163 Newberry, re 1121 New B. and C. Railw. & L. Co. v. Cony- 272 », Clare E beare 143 v.Muggeridge 149, 1256 Newburgh v. Bickerstaff 380 Newbury v. James 596 Newby v. Harrison 735 Newcomb v. Bonham 825 xlii Newham v. May 600, 603 Newland v. Champion 421 v. Painter 653, 1174 Newman v. Barton 72, 374 v. Bateson 444 v. Newman 951 », Payne 228, 230, 283) v. Rogers 584 Newport v. Bury 1060 v. Kynaston 977 Newstead v. Johnstone 1025 Newton v. Bennett 45) ». Charlton 247 ». Doran 499 ». Marsden 202 v. Newton 755, 826 ». Ontario Bank 274 ». Rowse 348) New Zealand Banking Co., re ‘877 Nichols v. Chalie 1199 v. Crisp 1025 v. Nichols 167 ». Rowe 1199, 1205) Nicholson v, Sherman 390) v. Squire 1130 1213) 617 234) 985 Nickels v. Hancock Nickolson v. Knowles Nicol v. Vaughan Nicolls v. Judson Nicol’s case 139 Nisbet v. Smith 245, 641 Noble v. Brett 70) Noel v. Robinson 72, 374 v. Rochefort 445 v. Ward 530) Norcott v. Gordon 944, 945) Norfolk, Duke of, v. Meyers 644, 645) Norris v. Chambres 516) v. Jackson 541, 572 v. Le Neve 231 ». Wilkinson 826 North v. Ansell 176 v. Harl of Strafford 459, 481, 485 ». Pardon 10 025) “», Williams 696 1118 North Brit, Ins. Co. v. Lloyd 154, 247 Northcote v. Duke 1104, 1106 Northumberland v. Aylesford 955) Norton v. Frecker 379, 795 -v. Mascall 1212 ». Steinkopf 1070 Norway v. Rowe 499, 632, 691, 692) Norwich v. Att.-Gen. : 28 Nott v. Hill Nottidge v. Prince 255 167, 224 944 INDEX TO CASES CITED. Novello v. James Nowell v. Roake Noys v. Mordaunt Nugent v. Gifford v. Vetzera Nunn v. Fabian 0. Oakes v. Smith ». Turquand Oates v. Cooke O’Brien v. Lewis O’Connor v. Spaight Odell v. Crone O’Fay v. Burke Ogilvie v. Foljambe ». Jeaftreson Ogle v..Cooke O’Harah v. Strange O’Herlihy v. Hedges Oke v. Heath Okeden v. Okeden O’Keefe v. Casey v. Taylor Okill v. Whittaker Oldham v. Carleton o, Hand v. Hughes ». Litchfield Olive v. Smith Oliver v. Court v. Oliver ex parte Ollivant v. Bayley O’Mahony v. Dickson Omerod v. Hardman Ommaney v. Butcher O’Neal v. McMahon 76|O0’Neil v. Hamil O’Neill v. Browne Onge v. Truelock Onions v. Cohen Onslow ». Onyon v. Washbourne Ord v. Noel O’Reilly v. Thompson Orme », Wright Ormes v, Beadel Ormond ». Hutchinson Ormsby, re Orr v. Kaines Notley v, Palmer Nourse v. Finch 1025 Orrok v. Binney Osborn v. Bellman Nutbrown v. Thornton | 735 901 934 417, 419 1134 B72, 1245 549, 553, 554 687 225 149, 1249 913 225, 230 327, 379 909 288 579 300, 302, 320 887 455 569 1179 902 1il5 582 101 1025 230 999 34, 181, 590 337 1065, 1077 449 277 105 654 584 758, 767, 1014 568 235 654, 657 365 519 676 Ontario Salt Co. v. Merchants’ Salt Co. 205 663 1052 572 838 225, 518 157, 329 626 68, 72 635 920 INDEX TO CASES CITED. Osborne v. Farmers & Mechanics’ Build- ing Society’ 42 ». Osborn 480, 537 Osborne v. Williams 212, 216, 218) Osgood v. Strode 790 Osmond ». Fitzroy 164, 229 Oswell v. Probert 1189 Otter v. Lord Vaux 838 Ottley v. Brown 213) Otway-Cave v. Otway 475 Overton v. Bannister 43 Owen v. Davies 569 v. Griffith ; 380) ». Homan 154, 155, 245, 283 328 v. Kennedy 1022 Owens v. Dickenson 394, 901, 1180 1182, 1183 Owens, re 274) Oxenden v. Lord Compton 1137, 1138 1140 ‘Oxenham v. Esdaile 1034 Oxford, Earl of v. Churchill 905 Oxford & Cambridge v. Richardson 688 Oxford v. Provand 41 PB 678 433} Packington’s case Packham v. Grego Padbury v. Clark 937, 940, 941, 959 Padwick v. Hurst 334 v. Stanley 249 Page v. Bennett 1107 v, Broom 582, 583, 1014 », Cooper 829 », Leapingwell 772 v. Page 1025 Paice v, Archishop of Canterbury 772 Pain v. Coombs 570, 572 v. Smith 826 Paine v. Hall 214 v, Meller 585 », Wagner 909 Palin v. Hills 905, 906 Palmer v. Bate 212, 867 v. Hendrie 832 v. Mason 437 v. Mitchell 1068 v. Neave 188 v. Newell 974 v. Simmonds 916 v. Wettenhal 486, 487 v. Wheeler 180 Palmer’s Case 344 Pamplin v. Green 389 Pankhurst v. Howell 968 Panton v. Panton 331 Papillon v. Voice xliii 529, 530, 785 Papineau v. Gurd 111 Paramore v. Yardley 435 ‘Pardine v. Jane 80, 346 (Pardo v. Bingham 398 Parker v. Brooke 314, 1173 v. Butcher 1094 », Clarke 303, 913 v, Carter 296 v. Dee 49 v. Gerard 474 v. Taswell 106 v, Watkins 818 (Parkes v, White 244 ‘Parken v. Thorold 584 Parkinson v. Hanbury 240, 816 Parrott v. Congreve 718 Parslow v. Weaden 276 Parsons v. Baker 916 v. Bignold 111 v. Briddock 431 v. Hayward 498 v, Parsons 126 v, Thompson 212 Parteriche v, Powlett 577 Partridge v. McIntosh 512 v. Stevens 93 Pasmore v. Huggins 926 Patch v. Ward 178 ‘Paton v. Rogers 588 Patrick v. Harrison 669 Patterson v. Holland 239, 243 v. Scott 408 Patey v. Patey 501 Paul ». Blackwood 582 » Compton 916 v. Johnston 42 ‘Pawlet v. Deleval 1168, 1173 , v. Ingres 645 Pawlett v. Att.-Gen. 814 ‘Paxton v. Douglas 660 v. Newton 541, 683 v. Popham 213 Payne v. Compton 37, 303 v. Little 1065 v. Mortimer 574, 791 Payton v. Bladwell 187 Peachy v. Duke of Somerset 1096, 1098 Peacock v. Evans 41, 175, 258 v. Monk 1179 v. Peacock 490, 497, 562 v, Stockford 1015 Peake v. Highfield 526, 528 ex parte 858, 1039, 1040 Pearce v. Creswick 49, 52 » Crutchfield 1132 v. Lisle 553 v. Lomas 412 xliv Pearl v. Deacon 250, 373 Pearse v. Green 329, 1065 Pearson v. Benson 227 v. Cardon 611, 616, 617 v. Morgan 141, 286, 289 v. Pearson 443, 944, 945 v. Rutter 928 Pedder’s Settlement, re 784: Peek v, Gurney 1249 v. Matthews 689) Peers v. Baldwin 1100 v. Needham 488 v. Oxford 246, 247 Pegler v, White 578) Pells v. Brown 913) Pelly v. Wathen 818) Pember v. Inhabitants of Knighton 765 Pemberton v. Oakes 342, 343 v. Pemberton 886, 887 Pembroke v. Thorpe 542, 571 Pembrooke v, Friend 405, 407 Pendarvis ». Hicks 196 Pendlebury v. Walker 277 Pengal v. Ross 570 Penn v. Lockwood 816 v. Lord Baltimore 451, 727, 1083 Pennell v. Roy 391 v, Earl of Dysart 530) Pennington v, Buckley 765 Penny v. Allen 751 v, Clarke 440 v. Watts 37, 303 Penrhyn v. Hughes 358, 360 Perceval v. Phipps 700 Perfect v. Lane 258 Perrett’s Case 1249 Perrin v. Lyon 204 v. Perrin 133 Perrott v. Perrott 675 Perry v. Phelips 660 v. Phelps 393 v, Phillips 391, 1027 v. Shipway 1079 v. Truefit 707, 709 v. Whitehead 74 Perry-Herrick v. Attwood 290 Persse v. Persse Persted v, Payer Peter v. Rich Peterson v. Peterson Petit v. Smith 45, 389, 1025 Peto v. Hammond 37 Petre v, Eastern Counties Rail. Co. 210 97 765 367 428 v, Eispinasse 265; 745 v. Petre 1128 Petts, re 128, 129 Peyton v. Bury 181, 197, 200 Phayre v. Peree 5210 INDEX TO CASES CITED. Phelps v. Prothero 33 Phillips v. Chamberlain 126 v. Duke of Bucks 142, 209 ». Homfray 1251 ». James 784 v, Kerry 120 ». Parry 401 v. Phillips 37, 303, 330, 334, 507, 1026 ». Zimmerman 468 ex parte 656, 1138 Philpot v. Jones 342 Philpott v. St. George’s Hospital 440 Phipps v. Annesley 437 v. Lord Anglesea 445 Picard v. Hine 1184 Pickard v. Sears 1250 ex parte 1140 Pickering v. Bishop of Ely 540 v. Kempton 451 v. Lord Stamford 35, 71 v. Pickering 93, 94, 243 Picket v. Loggon 167, 177 Pickstock v. Lyster 273, 855 Pidcock v. Bishop 155, 245, 281 Piddock v. Brown 383 Pierce v. Locke 973 v. Thornely 1189 v. Webb 525, 526 Piercy v. Roberts 748 Pierson v. Garnet 83, 445, 916, 918 60 v. Hutchinson Piggott v. Green 905 ». Stratton 721 v. Williams 338 Pike v. Hoare 451 v. Nicholas 698, 702 v. Williams 572 Pilcher v. Rawlins 313 Pilkington v. Boughey 773 Pilling v. Armitage 287, 288, 607 Pillmore v. Hood 142 Pince v. Beattie 226 Pinchin v, Simms 985 Price v. Price 167 v, Strange 905, 906 s. Williams 545, 1206 Prichard v. Ames 1175 Priddy v. Rose 872, 877, 1013 Prideaux v. Lonsdale 235, 243 Pride v. Fooks 908 Primrose v. Bromley 367 Prince Albert v. Strange 701 Prince of Wales Ass. Co. v. Trulock 654 Princess Bariantinski, re 1143 Pring v. Brown 108 vy. Pring 1025 INDEX TO CASES CITED. Prior v Hill 1189, 1190 Pritchard v. Arbouin 773 v. Merchants’ &. Ass. Co. 152 Proctor v. Robinson 226 Prole ». Soady 956 Proof v. Hines 167, 228, 255 Prosser v. Edmonds 860, 869, 880 Prothero v. Forman 654 v. Phelps 667 Prouse v. Abingdon 412 Prowse v. Spurgin 428 Pugh v. Smith 936 re . 228 Pulbrook, re 1118 Pullen v. Ready 89, 196 Pullerton v. Agnew 1086 Pincke v. Curteis 584 Pinder v. Pinder 439 Pitcairne v. Ogbourne 111, 188, 190 Pitt v. Cholmondeley 384) ». Jackson 925 ». Pidgeon 977 v. Piliam 753 Place v. Spawn 783 Platt v Platt 965 Pledge v. Buss 247, 250, 373 Plenderleath v. Frazer 227, 228 Plumb v. Fluitt 289, 312 Plunkett v. Brereton 483 v. Lewis 988, 990 v. Penson 397 Plymouth, Countess of, v. Throg- morton 346, 347 Pocock v. Reddington 1057 Podmore v. Gunning 18] Pollard v. Clayton 541, 555 y. Greenvil 74 Pollexfex v. Moore 592 Pomeroy v. Boswell 33 Pomfret v. Pening 78 Poole v. Bott 196, 198 Pooley v. Brown 88 v. Budd 547 ». Quilter 243 v. Ray 71, 100 Poore v. Clark 645 xlv Portarlington v. Soulby 655, 664 Porter v. Bradley 913 Porter’s Case 764 Porter’s Trust, re 440 Portmore, Earl of ». Taylor 89 Portsmouth v, Fellows 1082 Post v. Todhunter 265 Pothonier v. Dawson 852 Pott v. Surr 222 Potter v. Richards 203 v. Sanders 591 Powell v. Att. Gen. 764 v. Begley 696 v. Evans 1064 v. Hillicar 446 v. Knowler 211, 879 » Powell 82 v. Powis 646 ». Thomas 42, 287, 607 . re 929 Powerscourt v. Powerscourt 765 Powitt v. Guyon 1007 Powlet, Earl-v. Herbert 1057 Powys v. Blagrave 675 v. Mansfield 964, 965, 967, 968 Pratt v. Brett 676 v. Harvey 773 v.Sladden 1025 Prendergast v. Devey 251, 372 v. Prendergast 898 v. Turton 1108, 1246 Prescott, ex parte 337 (Preston v. Corporation of Great Yar- mouth 624 v. Tubbin 317 Prevost v. Clarke 916 Price v. Berrington 161 v. Corporation of Penzance 542 v. Dyer 579 v. Edmunds _ 251, 372 Pulsford v. Hunter 441 v. Richards 141, 149, 1247 Pulteney v. Darlington 957, 997, 999,1001 ». Warren 333, 379, 380,- 382, 666, 1100 Pulvertoft v. Pulvertoft 295, 789 Purcell v. Macnamara 225, 231 Purdew v. Jackson 864, 1189, 1190 Purse v. Shaplin 126 Pusey v. Desbouvrie 90, 92, 96, 130 142, 951 v, Pusey 552 Pushman v. Filliter 917 Pye v. George 754 ex parte 963, 965 Pym v. Blackburn 80 v, Lockyer 961, 963, 968 Pope v, Crashaw 1190 v. Curl 700, 701 v. Garland 579 v. Gwinn 397 v. Pope 906, 917 v. Whitcomb 905 Popham v. Bamfield 31, 197, 1097, ce o, Exham 240, 838 Uv Eyre 209 ». Lancaster 646 Popplewell v. Hodkinson 690 i Pyncent . Pyncent 530 xlvi Q. Quarrier v. Colston Quarrell v. Beckford INDEX TO CASES CITED, 522 632 Queensberry, Duke of, v. Shebbeare 701 R. Raby v. Ridehalgh Rachfield v. Careless Radburn v. Jervis Radenhurst v. Coate Radnor v. Vanderberdy Rafferty v. King Radway v. Coleman Raikes v. Ward Railton v. Matthews Ramboll v. Soojumnull Ramsbottom v. Gosden ». Parker Ramsden v. Dyson v. Hylton Ramshire v. Rolton Ramuz v. Crowe Rancliffe v. Parkyns Randall v. Bookey ». Burrowes ». Errington v. Morgan v. Russell . % Willis Randfield v. Randfield Ranelaugh v. Hays Ranelagh, Lord, v. Melton Ranken v. Harwood Rankin v, Huskisson Ransome v. Burgess Raphael v. Boehm Rashleigh v. Master Rastal v. Attorney-General Rastel v. Hutchinson Ratcliff v. Davies Ravald v. Russell Raven v. Waite Ravenscroft v. Jones Rawbone’s Bequest Rawlins v. Powell ” Wickham Rawson v. Samuel Rawstone v, Parr Ray v. Ray v. Stanhope ex parte Rayner v. Koehler Read v. Brokman v. Read Reade v. Armstrong 1065 390, 1025 977 685 464 831, 840, 842 708 1082 252 211 580, 581 167, 255 286, 288, 607 90, 91 18, 133 63 430, 936, 940 941, 947 1025 1065 238, 240 267, 574, 792 438 282 440 249, 600, 641 586 391 596, 689 797 1067 352 118 1018 849 831, 842 444 966, 971 315 987 241, 499 338 117 417 973 1174 390 58, 59 Reade v. Bentley 698, 702 Reddell v. Dobree 446 Redding v. Wilkes 571 Rede v. Oakes 578 Redington v. Redington 356, 359 .|Redman v. Redman 187, 188 Reece v. Trye ' . 553 Reech v, Kennigate 181, 590 Reed v. Don Pedro, &¢., Co 578 ». Norris 232, 1030 Rees v. Beckett 661 v. Berrington 248, 251 », Wittrock 225 Reese River Mining Co. v. Atwell 272 Reeve v. Hicks 842 v. Parkins 671 Reeves v. Baker 917 v. Reeves 529, 530 Reffell v. Reffell 125 Regina v. Lord 168 v. Smith 1118 Rehden v. Wesley 1063 Reid v. Middleton 625 ». Reid 921 v. Shergold 74, 76 v. Stearn 611 ». Whitehead 305, 310 Reis v. Scottish Equitable, &c.,Co, 152 Remnant v. Hood 439 Rennie v. Young 288, 1245 Revell v. Hussey 518 Revett v. Harvey 235 Rex v. Arundel 59, 179 v. Boston 1018 v. Hare 20, 30 v. Hopkins 1119 v. Newman / 764 Reynard v. Spence 130, 471, 954 Reynell v. Sprye 90, 134, 141, 211 217, 578, 878 Reynish v, Martin 196, 197, 199 1219, 1220 112 Reynolds v. Nelson 584, 667 v. Pitt 1093, 1105, 1107 ». Teynham 1116 ex parte 243, Rhodes v. Bate 155, 227, 231235, 236 v. Beauvoir 226 ». Cock 222 v. Mostyn 682 Ribbans v, Crickett 342 Rice v. George 476 v. Gordon 118, 175 ». O’Connor 309 v. Prov. Ins. Co. 153 ». Rice 40 Rich v, Cockell 1166, 1173, 1174 v. Jackson 577, 579 Richards v. Barrett 413 | INDEX TO CASES CITED. Richards v. Davies 504 v. Noble 382 ». Richards 441 » Symes 533, 654! exc parte 1113 Richardson ». Bank of England 492 v. Chapman 895 v. Greese 983, 984, 988) ». Horton 115 v. Richardson 745 v. Smallwood 269 v. Smith 1209 v. Younge 841 re 836 Riches v. Owen 624 Richmond v. Evans 838 Richmond’s Case 1108 Rickard v. Robson 767 Ricker v. Ricker 839 Ricketts ». Turquand 889) Rickman v. Morgan 961, 972 Rico v. Gaultier 1222 Rider v. Kidder 217, 270, 1018 Ridges v. Morrison 978 ». Brown 976 Ridgway v. Clare 508 », Darwin 1141 v. Sneyd 723 Ridley v. Ridley 240 v. Sexton 328 Ridout v. Gwynne 783; ». Payne 1203, 1205 Rigney v. Fuller 834. Ripley v. Waterworth — 507, 906, 996, 1017, 1023 Ripon, Earl of,.v. Hobart Rippon v. Dowding Rishton v. Cobb Ritchie v. Atkinson v. Cowper ». Smith Rives v. Rives Rivett’s Case Roach v. Garvan 1115, 1118, 1128, 1132 Roberdeau v. Rous Roberts v. Bell . Dixwell . Eberhardt . Kingsley Kuffin . Roberts 186, Snell Smith . Spicer Williams . Wynn Robertson’ ». Armstrong ». Norris isesessesseges 681, 686, 734 1164 128, 194 346 147 211 357 779 727 617 747 508 794 385 187, 217, 219 351 946 1178 296 133 1069 xlvii 689 Robinson »v. Bell 33 v. Bland 346 ». Byron 688 », Cox 213 ». Chartered Bank 550 v Gee 213 v. Geldard 416, 442 v. Governors of London Hospital 781 v. Litton. 675, 676, 820 v. Lowater 1007 v. Pett 237 %, Robinson 772, 993, 999 ». Smith 916 v. Taylor 947, 1017 v. Tonge 1034 v. Wall 207 ». Wilson 431 Robley ». Robley 977 Robson v. Carpenter 311 v. Collins be 579 v. Earl of Devon 142, 143 v. Whittingham 603 Roch v. Callen 977, 978 Roche »v. O’Brien 186 Rochford v. Hackman 749 Roddy v, Williams 149, 156 Rodgers v. Rodgers 209 Rodman v. Rodman 1192 Rodney v. Chambers 1196 Roe v. Berrington 372 v. Smith 274 v. Teed 567 Rogers v. Challis 561, 598, 609 v, Dallimore 1206 v. Mackenzie 367, 376 v. Rogers 670, 719 v. Shortis 301 v, Skillicome 1010 Rolland v. Hart 308, 320 Rollfe v. Budder 1173 v. Gregory 1054 v. Harris 1106, 1107 v. Rolfe 725 Rollins v. Hinks 696 Rolt v. Hopkinson 845 ». Lord Somerville 678 Rondeau v. Wyatt 566 Rook v. Worth 1001 Rooke v. Lord Kensington 113 Rooper v. Harrison 303, 304 Roper v. Williams Rose v. Cunynhame 595 v. Hart 337 v. Rose 1097 v, Watson 569 », Zimmerman 470 Ross v, Chester 165 244, 380, 838 xlviii Ross v. Clevely 551 v. Harvey 526 ». Monro 860 v. Perrault 845 v. Steele 236 Rossin v. Walker 1253 Rothschild v. Brookman 231 Rothwell v. Cook 346 v. Rothwell 635 Rous v. Noble 437 Rouse v. Barker 457 Rouse’s Estate 444 Row v. Dawson 872, 875, 876 Rowbotham v. Wilson 690, 721 Rowe v. Wood 632, 654, 657, 818 Rowlands v. Evans 501 Rowley v. Rowley 95, 180 Rowth v. Howell 1062 Roxburgh v. Fuller 976, 979 Roy v. Duke of Beaufort 167 Royal Can. Bank v. Kerr 274 ». Mitchell 172, 1158 Royle v. Wynne 661 Rudge v. Hopkins 645 Ruffin, ex parte 518, 1046 Rugby School Case 764 Rush v. Higgs 391, 393 Rushbrook v, Lawrence 825 Rushforth, ex parte 245, 431 Russ v. Mills 676, 820 Russell v. Ashby 1218, 1221 v. Dewy 110} | ». Dickson 977, 981 v. Hast Anglian Rail. Co. 627 v. Hammond 265, 269 v. Jackson 181 ». Kellett "78 v, Pelligrini 495 v. Robinson 848 v. Russell 826 Rutherford v. Rutherford 1039 INDEX TO CASES CITED. Rutland, Duke of, v. Duchess of Rut- land Ryall v. Rolle wv. Ryall 338, 849, 876, 1052 102: 390 8 Ryan v. Mackmath 525 Ryder v. Bickerton 1064 Ryland v. Aluntt 783 Ryle v. Haggie 49, 52 8. Sablicich v. Russell 612 Sackville West v. Holmesdale 787 Sadler v. Hobbs 1070, 1077 v. Lee 501 & Jackson, ex parte 277, 278 Sainsbury v. Jones 604 St. Albans v. Beauclerc 976 St. Albyn v. Harding 258 St. George v. Wake 19 St. John v. St. John 213, 217, 520, 524, 526, 1197 St. Luke v. St. Leonards 456 St. Paul v. Dudley & Ward, 355, oe 4 St. Vincent v. Grier 35 Sale v. Moore 914, 917, 918 Salkeld v. Johnston 4 Salmon v. Gibbs 180 Salter v. Bradshaw 258 ex parte 1113, 1125 Saltern v. Melhuish 179 Salusbury v. Denton 923 Sampson v. Smith 684 Samuda v. Lawford 561 Samuel v. Howarth 250, 372 Sanborn v. Sanborn 507, 1127 Sandby, ex parte 73, 348 Sanders v. Pope 1094, 1096, 1104 Sanderson v. C. & W. Railway Co. 542 « Walker 240 Sanderson, re 1017 Sandford v, Ballard 476 Sandon v. Hooper 818 Sankey B. C. Co. re 828 Saugeen v. Church Soc. 123, 1253 Saunders v. Dehew 36, 37, 294, 301,. 754 v. Drake 445 ». Leslie 1039 v, Smith 729 Saurey v. Rumney 977 Savage v. Brocksopp 518, 584 v. Carroll 572, 573, 1027 v. Foster 48, 285, 570, 943 Savery v. King © 222, 225, 227 Saville v. Saville _ 856, 957, 973 v. Tankred 552 Saxon Life Ass. Co. re 92, 132 Say v. Barwick 163 Sayer v. Sayer 779 Scales v. Collins 412 Scales v. Maude 744 Scawin v. Scawin 1020, 1022 Schioss v. Stebel 128 Scholefield v. Heap 969, 970 ». Lockwood 112, 817 Scholfield v. Templer 92, 124, 132, 141 Schoole », Sall 661 Schotsman v. Lancashire, &. R. R. Co. 606 Scott v. Avery 495 v. Becher 661 v, Corporation of Liverpool 495, 1210, 1257 INDEX TO CASES CITED. ‘xlix Scott v. Dunbar 292|Shaw v. Lawless 919 v. Fenhoullett 802, 1018 v. Ledyard 536 ». Nesbit 1043 v. Neale 228, 845 ». Porcher 873, 875 v. St. Lawrence, &c., Ins. Co. 153 v. Rayment 490): v. Thackeray 163 ». Scott 167, 188, 190, 286|Shearman v. McGregor 107 v, Surman 1052 v. Shearman 1222 v. Tyler 74,76, 194, 195, 198, 199,/Sheffield v. Coventry 965 420, 830) v. Duchess of Buckingham- Scribblehill v. Brett 186 shire 884, 885 Sculthrope v. Tipper 1062)/Sheffield Gas Co. ». Harrison 490, 543 Scurfield ». Howes 1075|Shelburne v. Inchiquin 111 Seagram v. Knight 382/Sheldon v. Coxe 307, 320 Seccombe v. Edwards 929 v. Fortescue Aland 1140 Sechel v. Mosenthal 551|Shelley v. Bryer 906 Sedgwick v. Daniell 515 ». Westbrooke 1118 Seeley v. Jago 999, 1000/Shelton v. Watson 784 Seixo v. Provezende 707, 710\Shepard v, Shepard 473 Selby v. Jackson 161/Shephard »v. Elliott 817 Seley v. Rhodes 231|Shepherd v. Wiight 364 Selkrig v. Davies 1023|Sheppard v, Kent 393, 394 Sells v. Sells 111, 113, 794 v. Oxenford 503, 504 Selwood v. Mildmay 126 v. Wilson 352 Senhouse v. Earl 530|Sheriff ». Butler 390 Senior v. Pawson 600) v. Coates 694 Sergeson v. Sealey 161, 359/Sherman v. Sherman 386 Seton v. Slade 67, 584, 594, 824/Sherrard v. Sherrard 352 Severn v. Fletcher 52\Sherratt v. Mountford 908 ». Severn 1192, 1194)Sherwin v. Shakespeare 816 Sevier v. Greenway 1067/Sherwood v, Sanderson 1141 Sewell v. Freestun 654/Shewell v. Dwarris 201 Sexton v. Wheaton _ |Shewen v. Vanderhorst 394 Shackell ». Macauley 1231/Shilleto v. Collett 1119 Shackle v. Baker 205, 596|Ship v. Croskill 141 Shackleton v, Sutcliffe 143, 149|Ship Warre, re 861 Shadbolt v. Thornton v. Vanderplank 983 Shafto v. Adams Shaftoe v. Shaftoe Shaftsbury v. Arrowsmith Shallcross v. Wright Shand v. Grant Shannon v. Bradstreet Sharp v. Arbuthnot ». Carter v. Leach «. Taylor Sharpe v. Cosserat v. Earl of Scarborough 897 ». San Paulo R. Co, Sharples ». Adams Shattock v. Shattock Shaver, re Shaw v. Borrer . Bunny . Drummond . Fisher . Jeffrey F es es 772|Shipbrook, Lord, v. Lord Hinchin- brook 1077, 1118, 1132 261|Shirley v. Davis’ 105 1219, 1220 v. Sankey 211 1225|Short v. Wood 999 997|Shovelton v. Shovelton 916 1u9|Shrewsbury, Countess of, v. Earl 78, 287, 607] of Shrewsbury 902 669\Shrewsbury v. Shrewsbury 355, 625 356, 357 519|Shrewsbury, &c., Rail. Co, ». N. W. 217} Rail. Co. 106 748|Shrewsbury, &c., Rail. Co. ». 301) fordshire Rail. Co. Shrewsbury and B. Rail. Co. 718 752, 1210|Shrewsbury, Earl of, v. North Staf- 210 1180|Shrewsbury, Earl of, v. Trappes oe 235|Shulter’s Case 1004, 1007, 1008|Sibley v. Perry 244/Sibthorp v. Moxon 228/Sichel v. Mosenthal 549|sidmouth v. Sidmouth 182, 265!Sidney v, Shelley 905 533 490 1020 803 1 INDEX TO CASES CITED. Silcox v. Bell Silk v. Prime 145 Sillem v. Thornton 153 Sills v. Lang 464, Silver v. Bishop of Norwich 625 - Simmonds v. Great Eastern Railw. 1041 v. Lord Kinnaird 625 v. Palles 743, 846, 847 Simons v. Cridland 669 ». Horwood 1176 Simpson v. Chapman 1068 ». Grant 537 ». Ingham 342 ». Lamb 880) v. Lord Howden 525, 526, 527, 654 ». O'Sullivan 359 v. Ottawa & Prescott Rail. Co. 623, 626 v. Vaughan j11, 114 Simson v. Cooke 342 Sinnett v. Herbert 773 Sismey v. Eli 526 Sisson v. Gilles 957 Skapholme v, Hart 878 Skarf v. Soulby 268 Skeeles v. Shearley 308 Skett v, Whitmore 569 Skey v, Bennet 393 Skidmore v. Bradford 158 Skinner v. McDonell 567 », Warner 1115 ex parte 1119 Skip v. Huey 248 ». Harwood 512, 628 Skotlowe v. Williams 1254 Slade v. Rigg 838 Slanning v. Style 437, 438, 638, 640, 1170, 1173 Slater v. Slater 464 Sleech’s Case 344 Sleech v. Thorington 1187 Sleeman v. Wilson 752 Sleigh v. Lawson 1078 Slim », Croucher 145, 150, 651 Slingsby v. Boulton v. Grainger Sloman v. Walter Small v. Attwood Small v. Currie v. Marwood Smallcombe’s Case Smart v. Hunt ». McEwan 823) Smedley v. Varley 243) Smith v, Aston 74 » Attersoll 743 v, Aykwell 612, 619 929 1094 139, 140 154, 252 855 44, 1249 816 905|Smith v. Bank of Scotland 154, 155, 245, 283 v. Bate 1115 v. Bell 676 v. Bonnisteel 44, 6U7 v. Bromley 31, 278 v. Bruning 186, 217 v. Campbell 905 ( v. Casen 447 v. Cherrill 268 ». Clarke 207 v. Claxton 996, 1000 v. Clay 35 ». Colman 439 v. Cooke 530 v. Everett 872 v. Hammond 614 v. Haytwell 669 v. Hibbard 591 ». Hubbard 1036 v. Hurst 272 v. Jeyes 499 v. Kay 139, 224 », Leveaux 329, 330 v. Lidiard 908 o Lloyd 1209 ». Low 313 v, Maitland 127 ». Muirhead 336 ». Mules 500 v. Oliver 773, 778 - », Pincombe 96 », Redford 328 v. Reese River Co. 141, 315 ». Roe 392, 1067 v, Smith 315, 468, 510, 1132, 1133 v. Spencer 1015 v. Strong 969 v. Turner 572 v. Wigley 343 v. Wootten 653 Smith’s Case 146 Will, re 637 Smyth, ex parte 346, 349 Sneed v. Sneed 74 Sneesby v. Thorne 578 Soam v. Bowden 348 Soames v. Edge 542, 599 Soar v. Dalby 816 Society of Practical Knowledge v. Abbott 504 Sockett v. Wray 1180 Solicitors, &c. Ins. Co. v. Lamb 434 Sollory v. Leaver 624, 632 Solomon v. Vintners’? Company 690 Soltau v. De Held 186\Somerset v. Cookson 684, 688, 724 592 INDEX TO CASES CITED. li Somerset v, Cox 866|Staight ». Burn 687 Somerville ». McKay 492/Stainton v. Carron Company 95, 228 Sonley v. Clockmakers’ Co. 752\Standen v. Standen 127 Sopwith v. Maughan 471, 964, 955|Stanhope v, Earl Verney 1237 Sorrell v. Carpenter 317 v. Roberts 51 South v. Bloxam / 431|Staniland v, Willott 446, 448 ex parte 872, 876|Stanley v. Coulthurst 785 Western Rail v. Wythes 541, 542 v. Jackman 785 | Southampton Dock Co. v.Southamp- Stannard, re 48 ton H. & P. Board _18, 651|Stansfield v. Habergham 676, 1017 Southby v. Stonehouse 530, 1179|\Stanton v. Hall 1174, 1175, 1176, 1178, Southey v. Sherwood 697, 701 1188 Southcot’s Case 1143/Stapleton v. Stapleton 98, 94, 745 South Sea Co. v. Bumstead 1199, 1204/Stapylton v. Scott 105 v. D’Oliffe 111\Starkie, ex parte 1125 Sowden v. Sowden 1027|Stead v. Clay 670, 719 Sowerby v. Fryer 678 v. Newdigate 999 Spackman’s Case 135, 243|Stebbing v. Walkey 125, 126 Spaight ». Cowne 155|Stedman v. Collett 227, 228 Spain v, Watt 838) v. Hart 161 Sparks v. Cator 972, 973/Steele v. Stuart 516 v. Proprietors of Liverpool . |Steevens Hospital v. Dyas 1246 Water Works 1108|Steff » Andrews 1206 Sparrow v. Josselyn 442|Stent v. Bailis 102, 133 Spaulding v. Shalmer 1008|Stephens v. James 1127 Speer v. Crawter 451, 453, 455, 457 v. Olive 269, 544 v, Hayward 213 v, Simpson 307 Spence, re 1118, 1116 v. Stephens 932, 940 Spencer v. London & Birmingham v. Truman 789 Rail. Co. 684 ex parte 338, 340 v. Parry 365|Stephenson v. Dowson 441 v, Topham 227, 230 ». Wilson 33, 654 Earl ». Peck 1242|Sterndale » Hankinson 343 Spinks v. Robbins 968|Sterne v. Beck 1094 Spire v. Smith 977|Svevens v. Bagwell 215, 878 Spirett v. Willows 268, 269 ». Benning 698, 702 Spooner v. Payne 863, 867 v. Keating 696° Spooner’s Trust 441 v. Lynch 88 Spottiswoode v. Clarke 696 v. Savage 1133 Sprange v. Barnard 917|Steven’s Trust, re 906 Springer v. Clarke 392|/Stevenson v. Clarke 548 Sproule v- Prior 413 v. Hodder 35 Spunner v. Walsh 313] . Snow | 846 Spurgeon v. Collier 267, 792, 825|Steward v. East India Co. 1235 Spurret v. Spiller 277|Stewart v. Bridges 66 Spurrier v. Fitzgerald 566 v. Graham 1218, 1221 Spurway v. Glynn 443) . v. Great Western Rail Co, 133 Spyer v. Hyatt 973 ». Horton 111 Squire v. Campbell 577, 579, 689 v, Jones 913, 930 Squire v. Whitton 155, 283 ». Nicolls 843 Stacey v. Elph 244 v, Stewart 91, 93, 94 Stackhouse v. Barnston 35|Stikeman v. Dawson 149 v. Jersey 87, 303/Stileman v. Ashdown 269, 1034 Stackpole v, Beaumont 195, 198, 199,/Stillwell v. Wilkinson 175 1133|Stinson v. Pennock 848 Stafford v. Buckley 859, 913|Stirling v. Forrester 361, 365, 431 ». Stafford 1244/Stitwell v. Williams 629 Stahlschundt v. Lett 35, 418 », Wilkins 629 li \ Stocken ». Stocken 282, 989, 1126|/Sumpter v. Cooper 311 Stocker v. Brocklebank 540, 731/Surcome v. Pinniger 674 v. Wedderburn 492/Snrman v. Barlow 313 Stockley v. Stockley 89, 94, 96/Sutherland v. Briggs 570 Stoddart v. Nelson 908|Sutton v. Chetwynd 744 Stokes v. Cox 153 ». Montfort 687 v. Moore 571 ». Wilders 1060 Stolworthy v. Sancroft 180/Swaine e. Great Northern Railw. 600 Stone v. Godfrey 90, 91, 101, 131 v. Wall 367, 369 v, Lidderdale 863, 866, 868/Swaisland v. Dearsley 106, 578° », Real Property Co. 687/Swan v. Swan 1044 ». Stone 751\Swannock v. Lifford 831 v. Yea 878|Sweet v. Southcote 301 Stonehewer v. Thompson 831|Swift, ex parte 1128 Stonehouse v. Evelyn 443/Swinfen v. Swinfen 165 Stonor v. Curwen 747, 784, 785|Sydney v. Shelley 785 Stopford v. Lord Canterbury 1126/Symes v, Hughes 217, 762 Storer v. Great Western Rail. Co. 542/Symonds v. Marine Soe. 772 Story v. Johnson 476, 477, 607 ex parte 114 v. Walsh 1007|Symondson v. Tweed 566, 573 Strachan v. Brandon 878|Sympson v. Turner 740 Strahan v. Sutton 944, 946/Synge v. Hales 783 787 Strand Music Hall Co. re 1246 Strange v. Brennan 226 T, v. Fooks 44, 250 v. Harris 437, 634/Taff Vale Rail. Co. v. Nixon 327 ». Smith 182|/Talbot v. Shrewsbury 983 Stratford v, Powell 787, 952, 955 v, Earl of Radnor 949 Rail Co. v. Stratton 213 v. Earl of Shrewsbury 1115 Strathmore v, Bowes 678 ». Hamilton’ 92 Streatfield v. Streatfield 934, 936, 956 v. Stainforth 260 Street ». Commercial Bank — 304, 310/Tamworth, Lord, v. Lord Ferrers 678 vw Rigby 495, 545, 1199, 1209) fanner v. Wise 51, 529 1233|Tapling v. Jones 687 Strelley ». Winson 333/LTarback v. Marbury 269 Stribley v, Hawkie 650, 727|Tarleton v. Liddell 264 Strickland v. Aldridge 224\Tate v. Austin 1168 ». Strickland 401, 462 v. Clark 913 ». Turner 99 v. Hilbert 446 re 1144 ». Leithead 446, 447 Strode v. Blackburn 37 v. Williamson 225 Strong v. Ingram 977 re 461 Stronghill ». Anstey 829|Tatham v. Wright 887 Stroud v. Gwyer 1086/Tayler v, Great Indian, &c., Railway Co. Stuart v. Lord Kirkwall 1180, 1181 290 1182, 1183|Taylor v. Allen 622 Stubbs v. Sargon 758, 895, 1014 v. Ashton 140,141 Studholme v. Hodgson 437 v. Beech 568, 574 Sturge v. Sturge 90, 92, 96 v, Cartwright 752 Sturgis v. Champney 41, 1188, 1189 v. Chichester Rail. Co. 210 Sturt v. Mellish "37 ». Davis 492 Sturz v. De La Rue 695 v. Fields 512, 1046 Suffolk v, Green 1231 v, George 916 Suisse v. Lord Lowther 970, 976, 977 », Haylin 383 Summers v. Abell 696 v. Hughes 657 ». Griffith ~ 4175 v. Jones 265 Sumner v. Powell 114, 116 vo. Kymer 842 v. Thorpe 383 v, Neville 547 ‘ INDEX TO CASES CITED. INDEX TO CASES CITED. 111 l Taylor v, Pillow 702/Thompson v. Webster 265, 268, 269 ». Plumer 1028, 1052 », Whitmore 111 v. Popham 1097, 1104/Thomson v. Thomson 537 v. Pugh 191\Thornber v. Sheard 222 ». Richardson 127 ». Wilson 765, 772 v. Salmon 232/Thornborough v. Baker 815 v. Shepherd 654/Thornborow v. Whiteacre 1086, 1090 v, Stibbert 292, 313, 591/Thorndike v. Collington 481, 487 v. Taylor 997 v, Hunt . 800, 390 », Wheeler 74|Thorneycroft v, Crockett 817, 818 ex parte 17v/Thornton v. Hawley 992 re 1119 ». Howe 765 Teasdale v. Sanderson 476 v. Ramsden 42, 287, 607 v. Teasdale +285) Thoroughgood’s case 30 Tebbs v. Carpenter 1064;Thorp v. Macauley 1231 Teed v. Carruthers 1039|/Thorpe v. Holdsworth 826 v. Johnson 88 » Jackson 114, 115 Teeter v. St. John 255 v. Richards 461, 473 Tempest, re 1(89)Threlfall ». Funt 527 Tendrill x. Smith 221/Thrupp v. Collett 768 Tennant v. Braioe 201/Thynn v. Duvall 360 Terrell v. Higgs 33, 654 v Thynn 34, 133, 181 Terry v. Hall 820/Thynne, Lady v. Earl of Gleng all "568, Terry v. Harrison 719 961, 969, 972, 93, 984, 987 Teynham v. Herbert 643, 646, 649/Tibbitts ». George 876 The King v. Watson 855 v. Tibbitts 916, 936 Thelluson v. Woodford 932, 934, 936,/Tichener, re 315 ‘ 940|Tidd ». Lister 408, 429 Therman v. Abell 348|Tildesley v. Lodge w 387 Thetford School Case 782|Timsom v, Ramsbottom 308, 877 Thomas v. Bennet 988/Tinney v. Tinney 577 v. Dering 588|Tissen v. Tissen 637 v. Frazer 114/Tittenson v, Peat 1235 v. Freeman 860/Todd v. Gee 588, 602, 603, 605, 606 v Gyle 479 v. Wilson 383, 388 v, Jones 693/Tollett v. Tollett 76, 83, 895 v. Oakley 691, 692/Tolson v. Collins 989 v. Powell 103|Tombs »v. Elers 1115 ». Roberts 1117 v. Roch 401, 408, 412, 414 v. Thomas 626/Tomlinson v. Harrison 1217 v. Tyler . 1230 » Hill 466 ex parte 1125 v. Sleigh 112, 794 Thompson v. Charnock 495 re 1119 ». Corby 674|Tomson v. Judge 225, 227, 230 vy. Croker 675|Tonnins v. Prout 671 e. Finch 1071|Tvoke v. Annsley 469 v. Fisher 785|Toole v. Medlicott 572, 573 ». Griffin 1126/Toplis v. Baker 533, 843 v, Harcourt 554|Loronto », Bowes 237, 243 », Harrison 188|Tothill v. Pitt 913 v. Hodgson 447|Totten v. Douglas 265, 267 v. Hudson - 817, 1094/Tottenham . Green 518 ». Noel 1212|Totty v. Nesbitt 59 ». Smith 719/Toulman v. Price 59 ». Shakespeare .767/Toulmin v. Steere 307 », Simpson 180, 285)'Tourle v. Rand 293 », Stanhope 700|Toussaint v. Martinnant 249 % Thompson 765\Tower v. Rous 403 liv Townend v. Toker 265, 296 Townley v. Bedwell 766, 995 Townsend v. Ash 379 v, Carus 765 v. Crowdy 109 v. Lowfield 138 v. Westacott 268 Townshend v. Mostyn 977 v. Stangroom 177, 209, 577, 579, 580, 581| v. Windham 876. Trafford » Ashton ' 902 ». Boehm 997, 1001 Trail v. Baring 133) Transatlantic Company v. Pietroni 427 Trash v. White 843 Travers v. Bulkeley 1163 Treackle v. Coke 482 Treadwell v. Morris 653) Tregonwell v. Sydenham 1017 Trelawney v. Booth 595 Trenchard v. Waaley 138 Trent v. Hanning 913 Trevelyan v. Charter 231 Trevor v. Trevor 784, 788, 790 Tricker v. Kingsbury 20: 101 592 783 999 421 139 1000 360, 816 Trigge v. Lavallee Trimmer v. Bayne Tripp,v. Martin Triquet v. Thornton Troughton v, Binks Trower v. Newcome v, Knightley Trulock v. Roby Trust and Loan Oo. v. Boulton 838 Trye v. Corporation of Gloucester 773 Tucker v, Laing 248 v. Phipps 179 _ », Wilson 850 Tuckey v. Henderson | 979 Tuckfield v. Buller Tudor v, Anson Tuer v. Turner Tufnell v, Constable Tufton v. Harding \ Tullett v. Armstrong Tulloch v. Hariley 479 74 999 533 619, 663 1183 451 Tunstall v. Boothby 863, 866, 868 Turner v. Burkinshaw 330 ». Collins 223 v. Davis 369 ». Harvey 139, 150, 518 v. Morgan 475 v. Ogden 765 v. Sergeant 785 v. Turner 398, 663 v. Wright 382, 653 Turton v. Benson INDEX TO CASES CITED. Twining v. Morrice 91, 209 v1. Powell 959 Twiss v. Massey 508 Twistleton v. Griffith 255, 258 Twogood v. Swanston 384 ex parte 339 Twort v. Twort 679 Twynne’s Case 265, 266, 271, 281 Tyler v. Lake 1176, 1178 v. Yates 262 Tyndale v. Warre 1034 Tyre v. Fletcher 346 Tyrrell v. Hope 1174, 1175 v. The Bank of London 147, 226 231 Tyson v. Fairclough 476, 630 Tyssen v, Benyon 955 U. Ulrich ». Litchfield 125 Underhill v. Horwood Underwood v. Hatton v. Lord Courtown 94, 292 114, 167, 175 68 877+ v. Stevens 1077 Unity Bank, ex parte 170 University of London v. Yarrow 766 Upmann ». Elkan [07 Uppington v. Bullen 227, 228 Upwell v. Halsey 637 Urmson v. Pate 103 Urquhart v. King 1025 Usborne v. Usborne 676, 820 Utterson v. Mair 622 Uvedale v. Httrick 1081 Vv. Vachel v. Jeffries 1025 - ». Vachel 637 Valliant v. Dedemede 482 Vallier v. Lee 157 Van v. Barnett 992, 997, 999, 1001 v. Corpe 579 Vance v. Cummings 307 Vandergucht v. De Blaquiere 1220 Vanderplank v. King 925 Vanderzee v. Willis 851 Vandyck v. Hewitt 216 Vane v. Dungannon 957 Vankoughnet v. Mills 251 Van Norman v. Beaupre 472 Varley v, Winn 443 Vaughan v. Burslem 788 v. Vanderstegen 401, 1184 v, Welsh 661 Vaughton v. Noble 237 Vauxhall Bridge Co. v. Spencer 186 210 INDEX TO CASES CITED. Veal v. Veal 449 Verney v. Verney 357 Vernon v. Bethel 821 ». Keyes 145 v. Vawdry 383) Vernon’s Case 219 Vezey v. Jamson 767 Vickers v. Pound 442 Vigers v, Pike 146, 578 Villa Real v. Lord Galway 936, 944 Villers v. Villers 800) Vincent v. Beverlye 484 Vorley v. Cooke 300 Vulliamy v. Noble 340) Vyse v, Foster 510) Ww. W. v, B— 519, 522 Wadeer v. East India Co. 1234) Wadman »v. Calcraft 1096, 1105 Wafer v. Mocato 1104, 1107 Wagstaff v. Smith 1175, 1176 Wainwright v, Waterman 922 Wait, re 512 Waite v. Horwood 1027 v, Webb 772, 781 Wake v. Conyers 451, 454, 455, 456, 458 v. Harrop 112 ». Wake 130, 471, 951, 954 Wakefield v. Gibson 265 Walcot v. Walker 697 Walcott v. Hall 70, 374 Walford v. Gray 574, 791 Walker v. Armstrong 112, 120, 794 v. Broom 582 v, Brown 44 ». Denne 1000, 1015 ». Jackson 934 v, Jones 659 ». Meagher “399 v. Micklethwaite 663 v. Perkins 218 ». Preswick 592 v. Smallwood. 1004 v. Smith 225, 230 ». Symonds 138, 222, 1065 v. Walker 568, 571, 576, oe 21 v. Wetherell 1128 Iv Wallwyn v. Coutts 743, 857, 873, 1013 Wallace v. Marquis of Donegal 308 _ Wallgrave e. Tebbs 214 Wallis v. Brightwell 445 v. Crimes 1097 v. Duke of Portland 215, 878 879, 1230, 1231 v. Hirsch 495 Wallop v. Hewitt 977 » Lee 37, 552 Walmesley v. Booth 225, 228, 258 v. Buell 35 » Child 58, 60, 61, 62 Walsh v. Gladstone 981 v. Studdert 230 v. Trevanion 794 Walsham »v. Stainton 147 Walter v. Hodge 446, 1169, 1170 »v. Selfe . 657 Walters v. Morgan 567 v. The North Coal Mining Co. 482 Waltham’s Case 135 Walton v. Hill . 47] Walworth v. Holt 504 Warburton v. Loveland 4 Ward v. Arch 993 v. Baugh 936 v. Buckingham 554 v. Hartpole 228 v. Shallett 267, 792 v. Turner 447, 448, 449 v. Tyrrell 180 Warde v. Dickson 222 v. Warde 1117 Warden v. Jones 267, 574, 792 Warder v. Stillwell 492 Wardour v. Berisford 179 Ware v. Grand Junction Water Works Co. 596 v, Horwood 644, 654, 665 v. Lord Egmont 315 », Watson 1615 Waring v. Hotham 458 v. Lee 906 v, Waring 160 Warman v. Seaman 913 Warmstrey v. Tanfield 860 Warneford v. Thompson 75, 77 Warner v. Baynes 475 Warren v: Rudall 440, 934 », Warren 972 Warrick v. Warrick 320, 794 Washburn ». Ferris 231 Wason v. Wareing 103 Wastneys v. Chappel 795 Waterhouse v. Lee 133 Waterlow v. Bacon 33, 100 Waiters v. Mynn 659 ». Shade 821 v. Taylor 495, 499, 501, 612, 314 ». Waters 665 Watkins v. Cheek 421, 1009, 1887 v. Maule 79 ». Williams 475 Watney v. Wells 500 lvi Watson v. Alcock 250, 252 ». Duke of Northumberland 488 v, Hayes 997 » Marston 90, 106 ». Mid-Wales Rail Co. 877 ». Reid 582, 977 ». Watson 964, 968, 971 v. Wellington 861, 872 . Watt». Bullas : 74 v. Grove 231, 602 v. Watt 74 Watts v. Creswell 285 », Girdlestone 1056, Wayne v. Hanham 838 Weale v, Lower \ 82 ». West Middlesex * Water Works Co, 644 Weall v. Rice 959, 961 Weaver, re 662 Webb v. England 348 ». Hewitt 251, 372 ». Ledsum 1070 ». Lymington 530 ». Rorke 134 ». Shaftesbury 352 v. Earl of Shaftesbury 939 re 1140, 1141 Webber v. Hunt 1067 ». Smith 1105 ». Webber 437 Webster v. Cecil 106, 561 v. Parr 440 ». Webster 866 Wedderburn v. Wedderburn 235, 243, 505, 510 Wedmore ». Mayor of Bristol 600) Weeks v. Staker 645 Weir v. Taylor 661 v. Weir 1193 Welby v. Duke. of Rutland 647 v. Welby 940 Well v. Thornaugh 133 Weller v. Smeaton 647, 619 Welles v. Middleton 225, 230) Wellesley v. Duke of Beaufort 1112, 1113, 1115, 1118; v. Mornington 180 ». Wellesley 382, 544, 678, 1112, 1115, 1120, 1122, 1125 Wellington v. Mackintosh 495, 545 Wellman v. Bowring 906 Wells v. Foster 863, 867, 868 Wentworth v. Lloyd 231 West v. Errissey 789 v. Kerr 203 Reid 289, 312 INDEX TO CASES CITED, 769, 770 } 512, 1045, 1046 Westacott v. Cockerline 130, 471, 954 Westbrooke v. Attorney-General 139 Western v. McDermott 689, 721, 1243 West v. Shuttleworth v. Skip », Russell 174 Westley v. Clarke 1075 Westmeath v. Salisbury 1196, 1197 v, Westmeath 544, 1196 Weston v. Collins 587 Wethered ». Wethered 189, 262 Wetherell v. Wetherell 471 v. Wilson 1082 Whale v. Booth 417, 420 Whaley v. Dawson 458 v. Drummond 74. ». Norton 213 Wharton v. May 262, 383, 664 re 999 Wheatley v. Purr 537 Wheeler v. Bingham 196, 198 v. Caryl 267, 792 v. Trotter ~ 490 ex parte 1113 Wheelton v. Hardisty 152 Wheldale v. Partridge 1001 Whichcote v. Lawrence 240 Whicker v, Hume 764 Whildon v, Whildon 1194 Whistler v, Webster 936, 940 Whitaker v. Rush 337, 340 DES ve Pl 567, 568, ah 826 idiausieeh 9 v, a 566, 567, 571, oe ». Golding 60, il ». Whitchurch 800, 803 White v, Anderson 794 v. Bastedo 473 v. Baylor 753 v. Bishop of Peterborough 624, 632 v. Cudden 562 v. Cummins 392 v. Evans 1025 v. Haight 110 ». Hillacre 393 v. Lady Lincoln 331 ». Nutt 8L v. Parnther 421, 840, 843 v. Thornborough 788 v Warner 1106, 1107 v. White 357, 358, 764, 776 Whitefield v. Bewitt 382 v. Faussat 67, 59, 62, 866 ». Hales 1118 ex parte 1125 Whitehead v, Bank 1109 INDEX TO CASES CITED. lvii Whitehouse v. Glass 249/William v. Rob «°°: 653 v. Partridge, 1217, 1218, v. Wentworth 161 1222 v, Williams 596, 716, 919 Whiting v. Tuttle 696 ex parte 157, 1096 Whitty v. Price 263 re 1090 v, Whitley 940, 955}Williamson v, Curtis 1007 Whitmore v. Oxbowe 393 ». Gihon 186 ». Turquand 856/ Willis v. Jernegan 164, 255, 386 ex parte 1220 »v. Parkinson 457 Whitney v. Smith 1053, 1063|Willoughby v. Brideoke 260 Whittaker v. Howe 205 v. Middleton 943, 957 Whitton v. Russell 31, 83, 181 v. Willoughby ~ 301, 800 Whittingham ». Burgoyne 653, 671 802, 804, 1237 Whittington v. Jennings 269) Wills v. Sayers 1174, 1175, 1178 Whyte v. Collins 440 v. Slade AT5 ». O’Brien 338 v. Stradling 568, 571, 572 Wicks v. Hunt 598, 609} Wilmot v. Lennard 657 Widmore v. Woodroffe 765| Wilson v. Bedard 165 Wiggins v. Ingleton 346 ». Cluer 817 v. Mildrum 41, »v. Fielding 396, 397 Wightman v. Helliwell 1067, 1068 v. Foreman 1027 Wightwick v. Lord 70 v. Greenwood 502 Wigsell v. Wigsell 355, 356) v. Harman 352 Wilbur v. Howe 206 ». Hart 689 Wilcocks v. Wilcocks 1194 v. Ivat 436 Wilcox v. Drake 1113 v. Maddison 444 Wild v. Hilas 103 v. Major 917, 997 Wilde v. Gibson 141, 312 v. Metcalfe 817 Wildman’s Trust, re » Mount 936 Wiles v. Gresham 95 ». Northampton &c., Rail. Wilkes v. Collin 854 Co. 7 1234 v. Davis 545 v. O’Leary 977 v. Holmes 74 v Pack 1170 Wilkins v. Aikin 695, 698, 699 v. Paul 398 Wilkins v. Hogg 1063 v. Proudfoot 237 v. Stevens 1052 v. Short 231 Wilkinson v. Dent 947, 948 v. Stanhope 504 v. Fawkes 167 ». Townend 687 v. Henderson 115 ». Townshend 934, 936, 939 v. Joughin . 129 v. West Hartlepool, &c., Co. v. Nelson 119 568, 1246 v. Stafford 167 v. Williams 588 Willard v. McNab 111 », Wilson 111, 544, 794 Willett v. Blandford 505 ex parte 508, 820 Williams v. Bayley 211)]Wilson’s Case 826 v. Davies 338, 339) Wiltshire v. Marshall 163 v. Earl of Jersey 728| Winch v. Brutton 917 v. Everett 870, 874 ». James 1133 ‘vw. Flight 526 v. Winchester 142, 579 » Fowkes 41\Winchelsea v. Duke of Norfolk 389 ». Jones 1025|Winchester, Bishop of v. Knight 49 ». Kershaw 416, 781|Wind », Jekyll : 390, 435, 860 v. Lamb 37, 465|/Wing v. Harvey 1109 v Lee 654, 657|Winged v. Lifebury 591 v. Lord Lonsdale 1015) Winscom, re 1119 v. Nixon 1073)Wintle v. Carpenter 431 v. Osborne 708/Wintour v. Clifton 130, 932, 940, 941 Williams v. Protheroe 880 952 G Iviii Wirehouse v. Scaife 401 Withington v. Tate 853 Withy »v. Cotile 603 v. Mangles 906, 909 Witter v. Witter 756 Witts v. Boddington 895 Wollaston v. King 949 ». Tribe \ 789 Wolverhampton & Staffordshire Banking Co. v. Marston 273 Wolterbeck v. Barron 794 Wood v. Abrey 167, 175 ». Barker 274 v. Boosey 698 ». Brett 251 ». Chart 698 v. Cox 758, 920, 1014 ». Dixie 273) v. Downes 225, 226, 229, 230 235, 878 v. Dwarris 152 % Vonwitt 168) », Gayn 675 ”. Gniith 588, 878, 1205, 1212 1213 v. Irwin 265, 266 »v. Ordish 401 ». Panoyre 443 v. Rowcliffe 547, 552, 555 », Scarth 106 v. Scoles 516 v. Sutcliffe 688) », White 894, 1004 », Wood 905, 1179 Woodgate v. Field 395 Woodhouse v. Meredith 218, 231, 240 v. Shipley 193 Woodman v. Blake 1097 v. Higgins 818 Woodmeston v. Walker 1173 Woods tv. Hyde 995}. INDEX TO CASES CITED. Wragge’s Case 858 Wray v. Field. 987 v. Hutchinson 499 v. Steele 1018 Wren v. Bradley 201 Wride v. Clarke 397, 398 Wright v. Atkins 905, 916, 918 v. Cartwright 796 v. Englefield - 1179 v. Goff 108 v. Hunter 867, 375, 515 v. Laing 342 v. Maidstone . 65 v. Morley 431 v. Naylor 1116, 1212 v, Pearson 783 o. Pitt ; 482 v. Proud 225, 230,-235, 243 v. Rose 944 v. Simpson 248, 251, 372, 431 ». Snowe 141, 170 v, Vanderplank 221, 222 », Ward 614, 617 v. Wright 860, 865. Wyatt v. Barwell 308, 317 Wycombe Railw. Co. v. Donnington Hospital ; 106, 561 Wyke v. Rogers 251, 372 Wylie v. Wylie 507, 929 Wyllie v. Ellice 1129 ». Wilkes 1097 | Wynch ex parte 913 Wynn v. Morgan 584, 586 Wynne-v. Callender 520, 522, 526 », Hawkins 917- v. Lord Newborough 625 Wynstanley v. Lee 687 Wyse v. Lambert 234 Wythe v, Hennicker 413 Wythesv. Labouchere 153, 154, 320 v. Woods 1030 X. Woolam v. Hearn 577, 579, 581). Woolaston’s Case *108/Ximenes v. Franco 671 Woolscombe ex parte 1113 Woolstonecroft v. Long 398 Y. Woolstencroft v. Woolstencroft 406, 407|Yare v. Harrison 437,634 Wormald v. Maitland 309, 315|/ Yates v. Bell 870 Worrall v. Jacob 89, 1196 ». Boen 160 Worsley v. De Mattos 265, 266, 307 ». Compton 595 v. Earl of Scarboro’ 317, 320 », Hambly i 380 », Frank 92, 107 »v. Madden 863 », Jonson 905] Yeates v. Groves 876 Worthington v, Evans 200/York Building Co. v. McKenzie 232, 240 v. Morgan 316)York, Mayor of, v. Pilkington 458, 646 ». Wiginton 952, 955) 736 Wortley v. Birkhead 304/York & North Midland Rail. Co. Wotherspoon v. Currie 707 ». Hudson 242 INDEX TO CASES CITED. Young v. Christie 273|Younge v. Furze v, English 342/Yovatt v. Winyard v. Holmes 435 v. Keighley 1046 v. Peachey. 167, 221, 222, 1018 Zz. v. Smith 784) v ae 161/Zimmerman ». O’Reilly ex parte 333!Zouch v. eons lix 195. 716. 675. 168, 169° COMMENTARIES ON KQUITY JURISPRUDENCE. CHAPTER I. THE NATURE AND CHARACTER OF EQUITY JURISPRUDENCE. 1. Imperfect notions of what properly constitutes equity jurisprudence are so common, and have so often led to mis- takes and confusion even in professional treatises on the sub- ject, as to render it important to distinguish the various senses in which the word equityis used. In the most general sense, we are accustomed to call that equity, which, in human trans- actions, is founded on what is termed natural justice, in honesty and right, and which properly arises ex wquo et bonola). 2. It would, however, be a great mistake to suppose that equity, as now administered, embraces a jurisdiction so wide and extensive, as that which would arise from carrying into effect the principles of natural justice. Probably the jurispru- dence of no civilized nation ever attempted so wide a range of duties for any of its judicial tribunals. Many matters of natural justice are wholly unprovided for, from the difficulty of framing general rules to meet them, and from the doubtful nature of the policy of attempting to give a legal sanction to (a) Story, i 2 EQUITY JURISPRUDENCE. duties of imperfect obligation, such as charity, gratitude, and kindness(a). A large proportion, therefore, of natural equity, in its widest sense, must be left to the conscience of each indi- vidual, and cannot be judicially enforced. 8. The term equity is used in a more limited sense when used in contradistinction to strict law, or strictum et summum jus. It was in this application of equity that the jurisdiction of the Pretor had its origin. But his power never extended to the direct overthrow or disregard of the positive law. He was bound to stand by that law in all cases, to which it was justly applicable. 4 A more general way in which this sense of equity, as contradistinguished from mere law, is applied, is, to the inter- pretation and limitation of the words of positive or written laws, by construing them, not according to the letter, but according to their reason and spirit(b). Equity, in this sense, must have a place in every rational system of jurisprudence. Every system of human laws must necessarily be defective. The general words of a law may embrace all cases; and yet it may be clear, that all could not have been intentionally embraced. So, words of a doubtful import may be used, or words susceptible of a more enlarged, or of a more restricted meaning, or of two meanings equally appropriate. In all such cases, it is the duty of a judge to consider the object the legis- lature had in view, and so to construe the words, as will best forward that object. This is an exercise of the power of equitable interpretation. And hence arises a variety of rules of interpretation of laws, according to their nature and opera- tion, whether they are remedial, or penal laws ; whether they are restrictive of general right, or in advancement of public justice or policy; whether they are of universal application, or of a private and circumscribed intent(c). (a) Story, s. 2. (6) 1 Black. Comm. 61, 62; 3 ‘Black. Comm. 429. (c) Story, s. 7. Many aicdllent rules of interpretation will be found in Ruther- forth’s Institutes of Natural Law, B. 2, ch. 7; Bacon’s Abr. tit. Statute; 1 Black Comm, 58. See Hayden’s case, 5 Rep. 7; Eton College ». Bishop of Winchester, EQUITY JURISPRUDENCE, 3 5. The proposition in the Treatise of Equity, attributed to Mr. Ballow, that “In chancery, every particular case stands upon its own circumstances ; and although the common law will not decree against the general rule of law, yet chancery doth, so as the example introduce not a general mischief,” is sanctioned neither by principle nor by authority. Hquity has, in many cases, decided differently from courts of law, but these cases involved circumstances to which a court of law would not advert, but which a court of equity, proceeding on principles of substantial justice, felt bound to respect(a). 6. Another proposition, stated by the same author, that “Hivery matter that happens inconsistent with the design of the legislator, or is contrary to natural justice, may find relief in equity,” is equally untenable. Many cases against natural justice are left wholly to the conscience of the party, and are without any redress, equitable or legal. And so far from a court of equity supplying universally the defects of positive legislation, or peculiarly carrying into effect the intent, as contradistinguished from the text, of the legislature, it is gov- erned by the same rules of interpretation as a court of law. It is the duty of every court of justice to consult the intention of the legislature ; and acourt of equity is not invested with a more liberal discretion than a court of law(é). 7. It has been often said, that courts of equity are not, and ought not, to be bound by precedents, but that every case is to be decided upon circumstances, according to the arbitration or discretion of the judge, acting according to his own notions, ex e@quo et bono(c). There was probably much in the early history of equity in England to justify the statement Lofft, 416; Salkeld 7. Johnson, 1 Ha. 210; Warburton v. Loveland, 2 Dow & Cl. 480; Hughes v. Chester and Holyhead Railway Co., 8 Jur. N.S. 223. See also Re Good- hue, 19 Gr. 366. (a) Com. Dig. Chancery, 3, F. 8. And see Cowper v. Cowper 2 P, W. 753; Bur- gess v. Wheate, 1 W. Blackst. 123, Fry v. Porter, 1 Mod. 300: Kemp v. Pryor, 7 Ves. 249. (b) Story, ss. 11, 14; ‘3 Black. Comm. 431; Sedgewick on Stat. and Constit. Law 187. (c) See Francis, Max. 5, 6; Selden, cited in 3 Black. Comm. 432, 433, 435 ; 1 Kames, Eq. 19, 20. 4 EQUITY JURISPRUDENCE. that courts of equity were bounded by no certain limits or rules, but acted without restraint upon principles of con- science and natural justice. The decrees of the court of equity were then rather in the nature of awards, formed pro re nata, with more probity of intention than knowledge of the subject, founded on no settled principles, as being never de- signed, and therefore never used, as precedents(a). 8. For a long period, however, there have been well settled principles upon which courts of equity act. The cases which occur are various, but they are decided on fixed principles. Courts of equity have, in this respect, no more discretionary power than courts of law. They decide new cases, as they arise, by the principles on which former cases have been de- cided, and may thus illustrate or enlarge the operation _of those principles, but the principles themselves are as fixed and certain as the principles on which the courts of common law proceed(6). 9. Having thus remarked upon some inaccurate or inad- equate notions, entertained respecting equity jurisprudence, some more exact and clear statement of it may be given. This may be better done by explanatory observations, than by direct definitions, which are often said in the law to be peril- ous and unsatisfactory(c). 10. The remedies for the redress of wrongs, and for the en- forcement of rights, are divided into two classes. First, those rights which are recognized and protected, and those wrongs which are redressed in courts of common law, are called legal rights and legal injuries. Second, those rights which are recognized and protected, and those wrongs which are redressed in courts of equity, are called equitable rights and equitable injuries. The former are rights and wrongs at common law, and the remedies are remedies at common law; the latter are rights and wrongs in equity, and the remedies (a) 3 Black. Comm. 433, 440, 441, (6) Per Lord Redesdale in Bond v. Hopkins, 1 S. & L, 428. And see Gee v. Pritch- ard, 2 Sw. 414. (c) Story, s, 24. EQUITY JURISPRUDENCE. 5 are remedies in equity. Equity jurisprudence may, therefore, properly be said to be that portion of remedial justice admin- istered by a court of equity, as contradistinguished from that portion of remedial justice administered by a court of common law(a). 11. The distinction between courts of common law and courts of equity may also be illustrated by considering: (1) The different natures of the rights they recognize and protect; (2) the different natures of the remedies which they apply; and (3) the different natures of the forms and modes of proceed- ing which they adopt, to accomplish their respective ends(b). 12. Courts of equity enforce rights which courts of common law either do not recognize at all, or, if they recognize them, leave wholly to the conscience of the parties. Thus, estates vested in persons upon particular ‘trusts and confidences, technically ‘called trusts, are wholly without any cognizance at the common law ; and the abuses of such trusts and confi- dences are beyond the reach of legal process. But they are cognizable in courts of equity; and hence are calied equitable estates ; and the parties beneficially interested, have there a remedy for all wrongs and injuries, whether arising from negligence, or positive misconduct. Courts of equity will also interfere and grant relief in many cases of losses and injuries by mistake, accident, and fraud; of oppressive proceedings, undue advantages and impositions, betrayals of confidence, and unconscionable bargains ; of penalties and forfeitures, of impending irreparable injuries, or meditated mischiefs, which courts of common law take no notice of(c). 18. The remedies applied by courts of equity are also very different, in their nature, mode, and degree, from those of courts of common law, when each has jurisdiction over the same subject-matter. Thus, courts of equity interfere by in- junction to prevent wrongs being done, while courts of com- (a) Story, s. 25. And see Snell, 3. (6) Story, s. 26. (c) Story, s. 29. 6 EQUITY JURISPRUDENCE. mon law grant redress only, when the wrong is done. So if a contract is broken, courts of equity often compel the party specifically to perform the contract; whereas courts of law can only give damages for the breach of it(a). 14. Courts of common law have certain prescribed forms of action, to which the party seeking relief must resort, and if there be no prescribed form to suit the particular case, he is without remedy. 15. In an action at law only a general and unqualified judgment can be given for the plaintiff or defendant. But in many cases such a judgment, without qualification or condi- tion, will not do entire justice to either party. Some modifi- cation of the rights of both parties may be necessary ; some restraints on one side, or on the other, or on both; some ad- justments involving reciprocal obligations, or duties; some compensatory, or preliminary, or concurrent proceedings to fix, control, or equalize rights; some qualifications or condi- tions, present or future, temporary or permanent, to be annexed to the exercise of rights, or the redress of injuries. In all such cases courts of common law cannot give the desired relief, because they have no suitable forms of remedy(d). 16. Courts of equity have also prescribed forms of proceed- ing, but they are flexible, and can be adapted to different cases. The courts can adjust their decrees, so as to suit pecu- liar circumstances, and they can vary, qualify, restrain, and model the remedy, to suit mutual ‘and adverse claims, con- trolling equities, and the’ substantial rights of all parties. Besides, while courts of common law are compelled to limit their inquiry to the very parties to the suit before them, how- ever deeply others may be interested in the event; courts of equity, can bring before them all parties interested in the sub- (2) Story, s. 30. By the Com. Law Pro. Act, Con. Stat. U. C. c. 22, the courts of common law are now enabled to issue writs of injunction, both interlocutory and final, as well as most other writs calculated to enforce specific relief. () Story, s. 27; Mitford Eq. Pl. 3, 4. EQUITY JURISPRUDENCE. 7 ject-matter, however numerous, and adjust the rights of all(a). 17. Courts of equity also address themselves to the con- science of the defendant, requiring him to answer the matters of fact stated in the plaintiff’s bill, and to set up the facts which he relies on for his defence, upon oath. 18. Perhaps the most general, if not the most precise, des- cription of a court of equity, is, that it has jurisdiction in cases of rights, recognized and protected by the municipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the courts of common law(+). The remedy must be plain; for, if it be doubtful and obscure at law, equity will assert jurisdiction(c). It must be adequate ; for, if at law it falls short of what the party is entitled to, that founds a jurisdiction in equity(d). And it must be complete; that is, it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the party in a perfect manner, at the present time, and in future; otherwise, equity will interfere and give such relief and aid as the exigency of the particular case may require. The jurisdiction of courts of equity is, therefore, sometimes concurrent with the jurisdiction of courts of law ; it is some- times exclusive of it; and it is sometimes auxiliary to it(e). CHAPTER II. THE ORIGIN AND HISTORY OF EQUITY JURISPRUDENCE. 19. The origin of the court of chancery is involved in the same obscurity, which attends the investigation of many other | (a) Story, s. 28. (b) Cooper, Eq. Pl. 128, 129 ; Mitford, Eq. Pl. 112, 123, (e) Southampton Dock Co. v. Southampton H. & P. Board, L. R. 11 Eq. 254. (d) See Chapman v. Chapman, L. R. 9 Eq. 276 ; Ramshire v. Boulton, L. R. 8 Eq. 294; Hilly. Lane, L. R. 11 Eq. 215; Hoare v. Brembridge, L. Rk. 14 Eq. 522; L. R. 8 Chan. 22. (e) Story, s. 33. 8 EQUITY JURISPRUDENCE. questions, of high antiquity, relative to the common law (a) In England the administration of justice was originally con- fided to the Aula Regis, or great Court or Council of the King, as the Supreme Court of Judicature, which, in those early times, undoubtedly administered justice, according to the rules of both law and equity, or of either, as the case might require (b). When that court was broken up, and its jurisdiction dis- tributed. among various courts, the Common Pleas, the King’s Bench, and the Exchequer, each received a certain portion, and the Court of Chancery obtained a portion also(c). But at that period, the idea of a court of equity, as contradistinguished from a court of law, does not seem to have subsisted in the original plan of partition, or to have been in the contemplation of the sages of the day(d). 20. It cannot however be doubted that the court of chan- cery, in the exercise of its ordinary jurisdiction, is a court of very high antiquity, but it is not so easy to ascertain the origin of the equitable or extraordinary jurisdiction of the court(e). 21. But that the jurisdiction of chancery was established, and in full operation during the reign of Richard II., is admitted. The extensive use or abuse of the powers of chancery had at this period provoked the jealousy of par- liament, and efforts were made to restrain and limit its au- thority. The invention of the writ of subpcena about the 5th of Richard II., gave great efficiency, if not expansion, to the jurisdiction. The struggles of parliament against the court con- tinued throughout a number of reigns, but the crown steadily supported the court and resisted all appeals against its juris- diction, until finally, in the time of Edward IV., the process by bill and subpeena became the daily practice of the court(/). (a) Mitford, Eq. Pl. 1; Com. Dig, Chancery, A. 1; 4 Inst. 79. (6) 3 Black. Comm. 50; 1 Reeves, Hist. 62, 63. (c) 3 Black. Comm. 50; Com. Dig. Chancery, A.1, 2,3; Bac. Abridg. Court of Chancery, C. (d) Story, s. 39. (e) See on this subject, Com. Dig. Chancery, A. 2; 2 Inst. 552; 4 Inst. 82; Rex. ». Hare, 1 Str. 151, 160 ; 3 Black. Comm. 50. (f) Parkes, Hist. Chan. 39; 3 Black. Comm. 52; 4 Inst. 82; 2 Reeves, Hist. 194. EQUITY JURISPRUDENCE. 9 22. Until the publication of the proceedings of the Com- missioners on the Public Records, the opinion prevailed that. there were no petitions of the chancery remaining of record before the 15th of Henry VI. Many hundreds have however been found commencing about the time when the 17 Rich. IL, ch. 6, was passed. Most of these ancient petitions appear to have been presented complaining of assaults, and trespasses, and a variety of outrages, which were cognizable at com- mon law; but for which the complainant could not obtain redress, on account of the protection afforded to his adversary by some powerful baron, or by the sheriff, or by some officer of the county(a). 23. It thus appears that the earliest exercise of equity juris- diction was to remedy defects in common-law proceedings ; and, that equity jurisdiction was entertained then upon the same ground which now constitutes the principal reason for’ interference ; namely, that a wrong is done, for which there is no plain, adequate, and complete remedy in the courts of common law(b). The introduction at a later period of Uses or Trusts gave new activity and extended operation to the jurisdiction of the court; but did not, as many have supposed, originate it. As there was no remedy at law to enforce the observance of such uses or trusts, the relief given in such cases was merely a new application of the old principles of the court(c). 24, The Court of Chancery in this Province is entirely the creation of statute. By the Constitutional Act(@), passed in 1792, the law of England was introduced, but no court of equity existed until one was created by the 7 Wm. 4, c. 2, passed on the 4th of March, 1837. By that and subsequent Acts(e), the court has the like jurisdiction and power, as by the laws of (a) Story, s. 47. , (0) See Harg. Law Tracts, 333; 1 Eq. Ca. Abrid. Courts, B (a). (c) Story, x. 49; 4 Reeves, Hist. 368; 3 Black. Comm. 54; Bacon’s Ord. in Chan. by Beames. (d) 32 Geo. ITT. c. 1. (e) 12 Vic. v. 64, 8. 8; 13 & 14 Vic. c. 50, 5. 4; 16 Vic. c. 159, 8. 21; 20 Vic. c. 56,. s.1. 10 EQUITY JURISPRUDENCE. England were at that date possessed by the Court of Chancery in England, in respect of the matters hereinafter enumer- ‘ated, that is to say : (1) Inall cases of fraud and accident ; (2) and in all matters relating to trusts, executors and administra- tors, co-partnership and account, mortgages, awards, dower, infants, idiots, lunatics and their estates; (3) and also, to stay waste ; (4) to compel the specific performance of agreements; (5) to compel the discovery of concealed papers or evidence, or such as may be wrongfully withheld from the party claim- ing the benefit of the same ; (6) to prevent multiplicity of suits; (7) to stay proceedings in a court of law prosecuted against equity and good conscience; (8) to decree the issue of Letters Patent from the Crown to rightful claimants ; (9) to repeal and avoid Letters Patent issued erroneously, or by mis- take or improvidently, or through fraud ; (10) and generally, the like jurisdiction and power as the Court of Chancery in ‘England possessed on the 10th day of June, 1857, as a court of equity(a), to administer justice in all cases in which there exists no adequate remedy at law(b). * 25. The rules of decision in the court are, except when otherwise provided, the same as governed the Court of Chan- cery in England, in like cases, on the 4th day of March, 1837. And the court possesses power to enforce obedience to its orders, decrees and judgments, to the same extent as was then possessed by the court in England(c). 26. The court may also grant an injunction to stay waste in a proper case, notwithstanding that the party in possession claims by an adverse legal title(@). And it has jurisdiction to try the validity of last wills and testaments, whether the same respect real or personal estate, and to pronouncesuch wills and testaments void for fraud or undue influence or otherwise, in the same manner and to the same extent as the court has (a) The Court in this Province has none of the jurisdiction possessed by the Court of Chancery in England on the petty bag side, and therefore is not a court of record. (6) Con. Stat. U. C. c. 12,8, 26. (c) 7 Wm. 4, c. 2, s. 6. {d) 20 Vic. v. 56, 8. 4. EQUITY JURISDICTION. i 11 jurisdiction to try the validity of deeds and other instru- ments(a). 27. The court has also jurisdiction to decree alimony to any wife who would be entitled to alimony by the law of England, or to any wife who would be entitled by the law of England to a divorce and to alimony as incident thereto, or to any wife whose husband lives separate from her without any sufficient cause and under circumstances which would entitle her by the law of England, {to a decree for a restitution of conjugal rights(b). 28. The court possesses the same equitable jurisdiction in matters of revenue, asis possessed by the Court of Exchequer, in England(c). CHAPTER III. GENERAL VIEW OF EQUITY JURISDICTION. 29. Courts of equity, in the exercise of their jurisdiction, may, in a general sense, be said to differ from courts of com- mon law, in the modes of trial, in the modes of proof, and in the modes of relief. One or more of these elements will be found essentially to enter, as an ingredient, into every subject over which they exert their authority. 30. Three things, said Coke, are to be judged of in the court of conscience or equity, covin, accident, and breach of confi- dence(d). But although fraud, accident, and trust are proper objects of equity jurisdiction, to say that they are exclusively cognizable therein, is by no means correct; courts of law in (a) 12 Vic. c. 64, s. 9- (6) 7 Wm. 4, v. 2, s. 3; 20 Vic. v. 56, 8. 2, (c) 28 Vic. c. 17, s. 2; 33 Hen. 8, c. 39, s. 79; Att.-Gen. v. Halling, 15 M. & W. 687 ; Ex parte Colebrooke, 7 Price, 87; Colebrooke v. Att.-Gen. 7 Price, 146; Manning Ex. Pr, 101. And see Miller v. Att.-Gen. 9 Gr. 558; Norwich v. Att.-Gen. 9 Gr. 563. (d) 4 Inst. 84; Com. Dig. Chancery, Z.; Bac. Abr. Court of Chancery, C.; 3 Black. Comm. 431; Earl of Bath v. Sherwin, Prec. Ch. 261; s.c. 4 Bro. P, C. 373; Rex v. Hare & Mann. 1 Str. 149. 12 EQUITY JURISPRUDENCE. many cases, take cognizance of fraud. Thus reading a deed falsely to an illiterate person, whether by the grantee, or by a stranger, avoids it as to the other party, even at law(a). Many cases of accident, such as losses of deeds, mistakes in accounts and receipts, impossibilities in the strict performance of conditions, and other like cases, are remediable at law. And even trusts, are sometimes cognizable at law; as, for in- stance, cases of bailments, and that larger class of cases, where the action for money had and received for another's use is maintained ex equo et bono(b). 31. There are, on the other hand, cases of fraud, accident, and trust, in which neither courts of law, nor of equity, pre- sume to grant relief. Thus, where the law has determined a matter, with all its circumstances, equity cannot intermeddle. And, therefore, in such cases, notwithstanding accident, or unavoidable necessity, equity will not interfere(c). So, there can be no relief where a man by accident omits to make a will, appointment, or gift, in favor of some friend or relative; or leaves his will unfinished(d). Many cases of the non-per- formance of conditions precedent are equally without re- dress(e). So, cases of trust exist, in which the parties must abide by their own false confidence in others, without any aid from courts of justice. Thus, in cases of illegal contracts, or those in which one party has placed property in the hands of another for illegal purposes, if the latter refuses to account for the proceeds, and fraudulently or unjustly withholds them, the former must abide by his loss. The maxim, In pari delicto melior est conditio possidentis, et defendentis, is equally respected in courts of equity, as in courts of law(/). On the other hand, where the fraud is perpetrated by one party only, if it (a) Thoroughgood’s case, 2 Rep. 9a; Hobart, 126, 296, 330, 426; Shulter’s case, 12 Rep. 90. (6) Story, s. 60. (c) Heard v. Stanford, Cas. t. Talb. 174. (d) Whitton v. Russell, 1 Atk. 448. (ce) Popham v. Bamfield, 1 Vern. 83 ;' Lord Falkland v. Bertie, 2 Vern. 333. (f) Holman v. Johnson, Cowper, 341; Smith v. Bromley, Doug. 696 note. And see Batty v. Chester, 5 Beav. 103; McGill v. McGlashan, 6 Gr. 324; Langlois v. Baby, 10 Gr. 358; 11 Gr. 21, EQUITY JURISDICTION. 13 involves a public crime, and redress cannot be obtained, except by a discovery of the facts from him personally, still the case is one of irremediable injury as the law will not compel him to accuse himself of a crime(q). 32. In addition to those maxims which are acted upon as well in courts of law as in courts of equity, and besides various other maxims which in terms apply to particular parts of the system of equity, there are certain maxims and general axioms peculiar to equity, which are of frequent recurrence, and which it is of the greatest use rightly to understand and to bear in mind. 33. The maxim, that “Equity will not suffer a wrong without a remedy,” lies at the foundation of a large portion of equity jurisprudence as a suppletory system. But the principle con- veyed by that maxim must be understood with certain limi- tations. Itmust be regarded as referring exclusively to rights which come within a class enforceable by law, or capable of being judicially enforced, without occasioning a greater detri- ment or inconvenience to the public, than would result from leaving them to be enforced in foro conscientig. And it must also be understood to refer to cases where the party who is remediless at law, has not sacrificed or lost his remedy by his own act or laches(d), and to cases where there is no equal or superior adverse right. Thus ifa man should destroy hisown remedy to distrain for rent, and debt would not lie, he would not be relievable in equity(c). So, in cases proper for law, a man must defend himself by legal pleadings, and a court of equity will not relieve against either mispleading, or where there is a neglect and want of aplea, or no proper plea put in in time, for it was the man’s own fault(d). And where, upon a motion for injunction to restrain proceedings upon an (a) See Dixon v. Enoch, L. R. 13 Eq. 394, for a statutory exception to the rule in England. (0) Francis Max. 6, s. 3. (ce) 1 Roll. Abr. 375, pl. 3. (d) Anon. 1 Vern. 119; Stephenson v. Wilson, 2 Vern. 696 ; Ex parte Goodwyn, 2 Vern. 696; Blackhall », Coombes, 2 P.W. 70; Morrison v. McLean, 7 Gr. 167. But see Robinson v. Bell, 2 Vern. 146; Lady Gainsborough v. Gifford, 2 P. W. 424. 14 EQUITY JURISPRUDENCE. execution at law, it was shewn that the facts upon which the plaintiff's right in equity was founded had been raised as a defence to the action by way of equitable plea, the motion was refused(a). But it has also been held, that although if an equitable defence be properly raised at law and adjudicated upon, the adjudication cannot be reviewed by a court of equity ; yet where the defence was not properly raised at law, and consequently judgment passed against it, the party enti- tled to the benefit of it is not precluded from raising it in equity(b). f 34. The common maxim, that “ Equity follows the law” (c), Aiquitas sequitur legem, is susceptible of various interpreta- tions. {t may mean, either that equity adopts and follows the rules of law in all cases, to which those rules may, in terms be applicable ; or, that equity in dealing with cases of an equit- able nature, adopts and follows the analogies furnished by the rules of law. It is true in both of these senses, as applied to different cases and different circumstances. In neither sense, is it universally true, or rather it is not of universal applica- tion(d). Where a rule, either of the common or the statute law, is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it, as a court of law(e). If the law commands, or prohibits a thing to be done equity cannot enjoin the contrary, or dispense with the obligation. And yet there are cases in which equity so far from following the law, openly abandons it. Thus, if an heir-at-law should, by parol, promise his father to pay his sisters’ portions, if he would not direct timber to be felled to raise them; although discharged at law, he would in equity (a) Boulton v. Cameron, 9 Gr. 297; Terrell ». Higgs, 1D. & J. 388: Farebrother v. Welchman, 3 Drew. 122. And see Pomeroy v. Boswell, 7 Gr. 163; Crabb v. Parsons, 18 Gr. 674. See also 29 & 30 Vic. c. 42, 5. 3. (®) Craig v. Gore Dist. Mutual Ins. Co, 10 Gr. 137 ; Arnold v. Allinor, 16 Gr. 213, reversing decision of V. C, Mowat, s. c. 15 Gr. 37; Phelps v. Prothero, 7 D.M. & G. 722; Evans v. Brembridge,8 D. M. & G. 100; Waterlow v. Bacon, L. R. 2 Eq, 514. (c) See Earl of Bath v. Sherwin, 10 Mod. 1; Cowper v. Cowper, 2 P. W. 753. (d) Burgess v. Wheate, 1 W. Black, 137. (c) Kemp v Pryor, 7 Ves. 249 ; Bac. Abr. Court of Chancery, C. EQUITY JURISDICTION. 15 be deemed liable to pay them, in the same way as if they had been charged on the land(a). 35. In many cases, equity acts, by analogy to the rules of law in relation to equitable titles and estates. Thus, although the statutes of limitations are in their terms applicable to courts of law only, equity by analogy, acts upon them, and refuses relief under like circumstances. Equity always dis- countenances laches, and holds, that laches are presumable in cases where it is positively declared at law. Thus, in cases of equitable titles in land, equity requires relief to be sought within the same period in which an ejectment would lie at law(’). And, in cases of personal claims, it requires relief to. be sought within the period prescribed for personal suits of a like nature(c). There are, however, cases in which the statutes would be a bar at law, but in which equity would, notwithstanding, grant relief(d) ; and on the other hand there are cases where the statutes would not be a bar at law, but where equity, notwithstanding, would refuse relief(e). 36. The maxim, that equity follows the law, is one liable to many exceptions, and it cannot be generally affirmed, that, where there is no remedy at law in the given case, there is none in equity ; or, on the other hand, that equity, in the ad- ministration of its own principles, is utterly regardless of the rules of law(f). (a) Story, s. 64; Dalton v. Poole, 1 Vent. 318 ; Raw v. Potts, 2 Vern. 239. And see Hobbs v. Norton, 1 Vern. 136; Neville v. Wilkinson, 1 Bro. C. C. 543; Devenish v. Baines, Prec. Ch. 3; Oldham v. Litchfield, 2 Freem. 285; Thynn v, Thynn, 1 Vern.. 296 ; 11 Ves. 638, 639; Loffus v. Maw, 3 Giff. 592. (6) Beckford v, Wade, 17 Ves. 99. (c) Edsell ». Buchanan, 2 Ves. 83: Smith v. Clay, 3 Bro. C. C. 640, note; Cholmond- eley, v. Clinton, 2 J. & W. 156; Crooks v. Watkins, 8 Gr. 340. (d) Stahlschmidt v. Lett, 1 Sm. & G. 415 ; Hill v. Walker, 4 K. & J. 166; Clinch v. Brophy, 10 Ir. Eq. 325 ; Crooks v. Crooks, 4 Gr. 615; Blaikie » Staples, 13 Gr. 67 ; but see St. Vincent v. Grier, 13 Gr. 473. And see Irwin v. Freeman, 13 Gr. 465, Mof- fat v. Walker, 15 Gr. 155; Walmsley v. Bull, 15 Gr. 210; Stevenson v. Hodder, 15 Gr. 570 ; Carroll v. Eccles, 17 Gr. 529 ; Holmes v. Holmes, 17 Gr. 610. (e) Story, s. 64 a, ; and see Pickering », Lord Stamford, 2 Ves, 279, 582 ; Stackhouse v, Barnston, 10 Ves. 466 ; Bond’v. Hopkins, 18. & L. 413 ; Cowper v. Cowper, 2 P. W.. 753. (f) Kemp »v. Pryor, 7 Ves. 249 ; Story, ». 64 b. 16 EQUITY JURISPRUDENCE. 37. Another maxim is, that “Where there is equal equity, the law must prevail.” This is generally true, for, in such a case, the defendant has an equal claim to the protection of a court of equity for his title, as the plaintiff has to the assistance of the court to assert his title; and the court will not interpose on either side(a); for the rule then applies, “In equali jure melior est conditio possidentis”(b). It is upon this ground, that a court of equity refuses to interfere, either for relief or dis- covery, against a bona fide purchaser of the legal estate for a valuable consideration, without notice of the adverse title, if he chooses to avail himself of the defence at the proper time and in the proper mode(c). And it extends its protection equally, if the purchase is originally of an equitable title with- out notice, and afterwards with notice, the party obtains or buys in a prior legal title, in order to support his equitable title(d). This doctrine applies strictly in all cases, where the title of the plaintiff, seeking relief, is equitable. It was at one time, a matter of some doubt, whether it was applicable to the case of a plaintiff, seeking relief upon a legal title(e); but it-seems now settled after much conflict of opinion, that the plea will prevail against a legal as well as an equitable claim (f). But the purchaser must have paid his purchase-money before notice, for otherwise he will not be protected(g). 38. But, even when the title of each party is purely equit- able, it does not always follow that the maxim admits of no (a) Peto v. Hammond, 30 Beav. 495. (b) Jerrard v. Saunders, 2 Ves. 454. (c) See Sug. V. & P. ch. 25; Story Eq. Pl. ss. 603, 604, 805, 806. A plea of pur- chase for value, without notice, cannot be set up against the crown, Att.-Gen. » MeNulty, 11 Gr. 281 ; 581. (d) Saunders v. Dehew, 2 Vern. 271 ; Goleborn v, Alcock, 2 Sim. 552; Phillips ». Phillips, 7 Jur. N. 8. 1094 ; 8 Jur. N. 8. 145. (ec) Bassett v. Nosworthy, Finch, 102; Burlace v. Cook, 2 Freem. 24; Williams v. Lambe, 3 Bro. C. C. 264; Jerrard v, Saunders, 2 Ves. 454, 458 ; Strode v. Blackburn, 3 Ves. 221; Collins v. Archer, 1 R. & M. 284, 292. (f) Sug. V. & P.791; Walwynv. Lee, 9 Ves. 24; Payne v. Compton,|2 V.& C. £x.487; Bowen v. Evans, 1 J. & L. 263 ; Joyce ». DeMoleyns, 2 J. & L. 374; Att.-Gen. v. Wil- liams, 17 Beav. 285. And see Frazer v. Jones, 5 Ha. 475; on app. 12 Jur. 443 3 Stack- house v. Lady Jersey, 1J. & H. 721 ; Hope v. Liddell, 21 Beav. 183 ; Penny v. Watts 1 Mac. & G. 150; 2D. & Sm. 501; Lane v. Jackson, 20 Beav. 539.. But see Finch w Shaw, Colyer v. Finch, 19 Beav. 500; 5 H. L. 905. (g) Tildesley v. Lodge, 2 8m. & G. 543. EQUITY JURISDICTION. 17 preference of the one over the other, for another maxim, “ Qui prior est in tempore, potior esttin jure,” may prevail, Precedency in time will, under many circumstances, give an advantage, or priority in right(a). 39. The ruleis sometimes expressed inthis form ;“‘As between persons having only equitable interests, Qu? prior est in tem- pore, potior est in jure.” This is an incorrect statement of the rule, for that proposition is far from being universally true. In fact not only is it not universally true as between persons having only equitable interests, but it is not universally true even where their equitable interests are of precisely the same nature, and in that respect precisely equal; as is the common case of two successive assignments for valuable consideration of a reversionary interest in stock standing in the name of trustees, where the second assignee has given notice, and the first has neglected to do so(b). 40. Another form of stating the rule is this,‘ As between persons having only equitable interests, if other equities are equal, Qui prior est in tempore, potior est in jure.” This is not so obviously incorrect as the former, and yet even this enunciation of the rule, when accurately considered, seems to involve a contradiction. For when two persons are spoken of as having equal or unequal equities, in what sense is the word equity used? It is impossible strictly speaking that two persons should have equal equities, except in a case in which a court of equity would altogether refuse to lend its assistance to either party as against the other. The rule should perhaps be stated thus, “as between persons having only equitable interests, if these equities are in all other respects equal, priority of time gives the better equity, or Qui prior est in tempore, potior est injure.” The real meaning of the rule is this, that, in a contest between persons having only equitable interests, priority, of time is the ground of preference last resorted to; that is, a court of equity will not prefer the one (a) Becket v. Cordley, 1 Bro C. C. 358; Mackreth v. Symons, 15 Ves, 329, (b) Dearlev. Hall, 3 Russ. 1; Loveridge v. Cooper, 3 Russ. 30. , 2 18 EQUITY JURISPRUDENCE. to the other, on the mere ground of priority of time, until it finds upon, an examination of their relative merits that there isno other sufficient ground of preference between them, or in other words that their equities are in all other respects equal; and that if the one has on other grounds a better equity than the other, priority of time is immaterial. In examining into the relative merits, or equities, of two parties having adverse equitable interests, the points to which the court must direct its attention are obviously these, the nature and condition of their respective equitable interests, the cir- cumstances and manner of their acquisition, and the whole conduct of each party with respect thereto. And in examin- ing into these points it must apply the test, not of any technical rule, or any rule of partial application, but the same broad principles of right and justice which a court of equity applies universally in deciding upon contested rights(q). 41. Another maxim of no small extent is, that “He who seeks equity must do equity”(b). This maxim principally applies to the party seeking relief in the character of a plaintiff in the court. Thus, for instance, before the repeal of the usury laws, if a borrower of money upon usurious interest sought the aid of a court of equity in cancelling, or procuring the instrument to be delivered up, the court would not inter- fere in his favour, unless upon the terms of his paying the lender what was really and bona fide due to him(c). But if the lender came into equity, to assert and enforce his own claim under the instrument, the borrower might show the invalidity of the instrument, and have a decree in his favour and a dismissal of the bill, without paying the lender any- thing, for the court will never assist a wrong-doer in effectuat- ing his wrongful and illegal purpose(d). So, where a party seeks the benefit of a purchase made for him in the name of a (a) Rice v. Rice, 2 Drew. 73. (6) McDonald v. Neilson, 2 Cowp. 139; Farr v. Sheriffe, 4 Ha. 521; Hanson v. Keat- ing, 4 Ha. 4; Bowser v. Colby, 1 Ha. 143; Williams 7. Fowkes, 9 Ha. 595; Oxford v. Provand, L. R. 2 P. C. 125. And see Wiggins v. Meldrum, 15 Gr. 377. (c) And see Drake v. Bank of Toronto, 9 Gr. 116. (d) Mason v. Gardiner, 4 Bro. C. C. 487; Peacock v, Evans, 16 Ves. 512. . EQUITY JURISDICTION. 19 trustee, who has paid the purchase-money, but to whom he is indebted for other advances, he shall not be relieved but upon: payment of all the money due to the trustee(a). 42. Other illustrations of the maxim, ofa different nature, may be given. For instance, if a person having a title to an estate stands by and suffers a person ignorant of it to expend money upon the estate, either in buildings or other improve- ments, and afterwards asserts his title at law, upon prov- ing his title, judgment would be given for him, without any compensation for improvements being given to the party evicted(b). In equity, however, a person who has ex- pended money under such circumstances on the estate of another would be entitled to be indemnified for his expendi- ture, either by pecuniary compensation, or in some cases, if he were a lessee under a defective lease, by a confirmation of his title(c). This maxim is also frequently illustrated in that class of cases where, in consequence of some misdescription in the property sold, a court of equity willnot enforce specific performance at the suit of the vendor, unless he makes com- pensation for the injury the defendant has sustained from the misdescription(d). 48. Another maxim is, “He who comes into equity must come with clean hands.” So that if a person seeks to cancel, set aside, or obtain the delivery up of an instrument on account of fraud, and he himself has been guilty of participa- tion in the fraud, equity will not interpose in his behalf, unless the fraud is against public policy, and public policy would be defeated by allowing it to stand. Thus where an infant, fraudulently concealing his age, obtained from trustees part of stock to which he was entitled on coming of age; and, when of age a few months after, he applied for and received the residue of such stock, it was held a fraud on the part of (a) Sturgis v. Champneys, 5 M. & C. 97. (b) But see now, Ont. Stat. 36 Vic. c. 22. (c) Thornton v. Ramsden, 4 Giff. 519; Powell v. Thomas, 6 Ha. 300. And see Paul v. Johnston 12 Gr. 474 ; Carroll v. Robertson, 15 Gr. 173 ; McLaren v. Fraser, 17 Gr. 567 ; Gummerson v. Banting, 18 Gr. 516. (d) Knatchbull ». Grueber, 1 Madd. 153; Hughes v. Jones, 3D. F. & J. 307. And ' see Osborne v. Farmers and Mechanics’ Building Society, 5 Gr. 326. 20 EQUITY JURISPRUDENCE. the infant, and neither he nor his assignees were allowed to enforce repayment by the trustees of the stock paid during his minority(a2). The rule must be understood to refer to wilful misconduct in regard to the matter in litigation, and not to any misconduct however gross, which is unconnected with the matter in litigation, and with which the opposite party in the cause has no concern. 44, ‘It is also a maxim that, “Vigilantibus non dormientibus equitas subvenit,” the meaning of which is, that equity discount- enances laches, and, independently of any statute of limitation, has always refused to interfere where there has been gross delay in prosecuting rights, or long acquiescence in the asser- tion of adverse rights(6). Under such circumstances it would, in many cases, be impossible to interfere without doing injus- tice to third persons who had acquired interests in the property during the intervening period. In general, nothing can call forth a court of equity into activity but conscience, good faith, and personal diligence. But where acquiescence is relied on, it must be shown that the person acquiescing was aware of the thing in which he acquiesced, and of the effect of such acquiescence(c). 45. Another maxim of general use is, “ Equality is equity” ; or, as it is sometimes expressed, equity delighteth in equality(d); and this equality, according to Bracton, constitutes equity itself! This maxim is variously applied; as, for example, to cases of contribution between co-contractors, sureties, and others; to cases of abatement of legacies, where there is a deficiency of assets; and to cases of apportionment of moneys (a) Overton v, Bannister, 3.Ha. 503; Savage v. Foster, 9 Mod, 35; Nelson». Stocker, 4D. & J. 458. And see Leary v Rose, 10 Gr. 346; Hope v. Beard, 8 Gr. 380; Blain v. Terryberry, 11 Gr. 286, (b) See Hook v. McQueen, 4 Gr. 231; Clarke v. Hawke, 11Gr. 118; Smith v. Bonni- steel, 13 Gr, 29; Forsyth v, Johnson, 14 Gr. 639; Walker v. Brown 14 Gr., 2373 Brady v. Keenan, 14 Gr. 214; Larkin, ». Good, 17 Gr. 585; Smallcombe’s case, L.R. ‘3 Eq., 769. (c) Strange v, Fooks, 4 Giff: 408, (d) Petit ». Smith, 1 P. W. 9; Hulme v. Chitty, 9 Beav. 437, EQUITY JURISDICTION. 21 due on encumbrances among different purchasers and claimants of different parcels of the land(a). 46. Another maxim is, that “ Equity looks upon that as done, which ought to have been done.” The true meaning of this maxim is, that equity will treat the subject-matter, as to col- lateral consequences, and incidents, in the same manner as if the finalacts contemplated by the parties had been executed exactly as they ought to have been; not as the parties might have executed them. But equity will not thus consider things in favor of all persons ; but only in favor of such as have a right to pray that the acts might be done(d). And the rule itself is not, in other respects, of universal application. The most common cases of the application of the rule are under agree- ments. All agreements are considered as performed, which are made, for a valuable consideration, in favor of persons entitled to insist upon their performance. They are to be considered as done at the time when, according to the tenor thereof, they ought to have been performed. They are, also, deemed to have the same consequences attached to them; so that one party, or his privies, shall not derive benefit by his laches or neglect, and the other party, for whose profit the con- tract was designed, or his privies, shall not suffer thereby. Thus, money covenanted or devised, to be laid out in land, is treated as real estate in equity(c). And, on the other hand, where land is contracted or devised to be sold, the land is considered and treated as money. There are exceptions to the doctrine, where other equitable considerations intervene, or where the intent of the parties leads the other way; but these demon- strate, rather than shake, the potency of the general rule(d). 47. There are, also, one or two rules, as to the extent of maintaining jurisdiction, which deserve notice, as they apply to various descriptions of cases, and pervade whole branches (a) Story s. 64 £; Martin v, Martin, 1 Ves. 211; Lewin v. Okeley, 2 Atk. 50; Newton v. Bennet, 1 Bro. C. C. 185; Silk v. Prime, 1 Bro. C. C. 138, note ; Hazle- wood v. Pope, 3 P. W. 322. : (b) Burgess v. Wheate, 1 W. Black. 123, 129; Crabtree v. Bramble, 3 Atk. 987. (c) Fletcher », Ashburner, 1 Bro. C. C. 497. (d) Story, s. 64g; and see Craig ». Leslie, 3 Wheaton, 563. 22 EQUITY JURISPRUDENCE. of equity jurisprudence, and cannot therefore, with propriety, be exclusively arranged under any one head. 48. One rule is that, if originally the jurisdiction has prop- erly attached in equity in any case, on account of the supposed defect of remedy at law, that jurisdiction is not changed or obliterated by the courts of law now entertaining jurisdiction in such cases, when they formerly rejected it. The jurisdic- tion of equity, like that of law, must be of a permanent and fixed character, and being once vested legitimately in the court, it must remain there, until the legislature shall abolish, or limit it ; for without some positive Act, the just inference is, that the legislative pleasure is, that the jurisdiction shall remain upon its old foundations(a). 49, Another rule respects the exercise of jurisdiction, when the title is at law, and the party comes into equity for a dis- covery, and for relief, as consequent on that discovery. In many cases, it has been held, that where a party has a just title to come into equity for a discovery, and obtains it, the court will go on, and give him the proper relief; and not turn him round to the expenses and inconveniences of a double suit at law. The jurisdiction having once rightfully attached, it shall be made effectual for the purposes of complete relief. The ground is stated to be the propriety of preventing a mul- tiplicity of suits(b), a ground of itself quite reasonable, and sufficient to justify the relief, and one upon which courts of equity act, as a distinct ground of original jurisdiction(c). 50. In cases of account, there seems a distinct ground upon which the jurisdiction for discovery should incidentally carry the jurisdiction for relief. The remedy at law, in most cases. of this sort, is imperfect or inadequate, and where this objec- tion does not occur, the discovery sought must often be (a) See Atkinson v. Leonard, 3 Bro. C. C. 218; Hx. parte Greenway, 6 Ves. 812; Kemp v. Pryor, 7 Ves. 249; Bromley v. Holland,7 Ves. 19; East India Co. ¥v. Bod- dam, 9 Ves. 468; Re Stannard, 1 Chan, Cham. R. 16. (0) 1 Fonbl. Eq. B. 1, ch. 1, s. 3, note [f]: and see Parker v. Dee, 2 Ch. Ca, 200. (c) Story s. 64 k. See Jesus College v. Bloom. 3 Atk. 262; Pearce v. Creswick, 2 Ha, 293 ; Adley v. The Whitstable Company, 17 Ves. 329; Ryle v. Haggie, 1 J. & W. 236 ; McKenzie v. Johnston, 4 Mad. 373. EQUITY JURISDICTION. 23 obtained through the instrumentality of a master, or of some interlocutory order of the court; in which case it would seem strange, that the court should grant some, and not proceed to full relief(a). Even in cases not falling under either of these predicaments, the compelling of the production of vouchers and documents would seem to belong peculiarly to a court of equity, and to be a species of relief(d). 51. Similar reasons for extending the jurisdiction to relief, where it attaches for discovery, occur in cases of accident and mistake. In such cases the remedy at law is neither com- plete nor appropriate. And cases of fraud are least of all those in which the complete exercise of the jurisdiction of a court of equity in granting relief ought to be questioned or controlled. Indeed in many cases of fraud, what should be the nature and extent of the redress, whether wholly legal or wholly equitable, or a mixture of both, can scarcely be decided but upon a full hearing of the cause. 52. When we depart from matters of fraud, accident, mis- take, and accounts, as the foundation of a suit in equity, it is more difficult to ascertain where the right of a court f equity to entertain a bill for relief, as consequent upon the jurisdiction for discovery, begins and where it ends(c). The difficulty is increased by the rule adopted in the courts of equity in England, that if the party seeks relief as well as discovery, and he is entitled to discovery only, a general demurrer will lie to the whole bill(d). The effect of this rule is, that the plaintiff may be compelled, in a doubtful case, to frame his bill for a discovery in the first instance, and having obtained it, he may becompelled to ask leave to amend (which will not ordinarily be granted, unless itis clear that the proper relief is in equity,) and then he may try the question, whether he is entitled to relief or not(e). (a) 3 Black Comm. 437 ; Corporation of Carlisle v, Wilson, 13 Ves. 278. And see Jesus College v. Bloom, 3 Atk., 262. (b) Story, s. 67. (c) See Ryle v. Haggie, 1 J. & W. 234; Pearce v. Creswick, 2 Ha. 286. (d) Story, Eq. Pl. ss. 312, 545. (e) Story, s. 70; Mitford Eq. Pl. by Jeremy, s. 183, note/n); Cooper, Eq. Pl. ch, 1, 8. 3, 58; ch. 3, x. 3, 188; Story, Eq. Pl., s, 312, and note [1]; Lousada v. Templer, 2 Russ. 564; Frietas v. Don Santos, 1 Y. & Jerv. 577; Severn v. Fletcher, 5 Sim. 457. 24 EQUITY JURISPRUDENCE. 58. In ascertaining the true boundaries of the jurisdiction at present exercised by courts of equity, the subject naturally divides itself into three heads: the concurrent, the exclusive, and the auxiliary or supplemental jurisdiction(a). 54. The concurrent jurisdiction of equity has its true origin in one of two sources; either the courts of law, although they have general jurisdiction in the matter, cannot give adequate, specific, and perfect relief ; or, under the actual circumstances of the case, cannot give any relief at all. The former occurs when a simple judgment for the plaintiff, or for the defendant, does not meet the full merits and exigencies of the case; but a variety of adjustments, limitations, and cross claims are to be introduced, and finally acted on; and a decree meeting all the circumstances of the particular case between the very parties, is indispensable to complete distributive justice. The latter occurs, when the object sought cannot be accomplished by the courts of law ; as, for instance, a perpetual injunction, ora preventive process, to restrain trespasses, nuisances, or waste. The concurrent jurisdiction of equity, therefore, extends to all cases of legal rights, where there is not a plain, adequate, and complete remedy at law(0). 55. The subject may be divided into two branches: (1.) that, in which the subject-matter constitutes the principal (for it rarely constitutes the sole) ground of the jurisdiction ; and (2.)that, in which the peculiar remedies afforded by courts of equity constitute the principal (although not always the sole) ground of the jurisdiction(c). (a) 1 Fonbl Eq. B. 1, ch. 1, 8. 3, note (f). (b) Story s. 76 ; Com. Dig. Chancery, 3 F. (c¢) Story s. 77. _ ACCIDENT. 25 CHAPTER IV. ACCIDENT. 56, ACCIDENT is not merely inevitable casualty, or the act of Providence, or what is technically called vis major, or ir- resistible force, but such unforeseen events, misfortunes, losses, acts; or omissions, as are not the result of any negligence or misconduct in the party. The jurisdiction of the court arising from accident in the general sense is probably coeval with its existence(a). 57. But equity will not interfere in every case of accident(b). The jurisdiction, being concurrent, it will do so only, when a court of law cannot grant suitable relief, and when the party has a conscientious title to relief. Both grounds must concur, for otherwise a court of equity not only may, but is bound to, withhold its aid. 58. The first question is, whether there is an adequate re- medy at law, not merely, whether there is some remedy. And here a most material distinction must be attended to. Courts of law now frequently interfere, and grant relief under cir- cumstances in which it would certainly have been at one time denied. The legislature, by express enactments, has con- ferred on courts of law in some cases, the same remedial fa- culty which belongs to courts of equity. Now if the courts of equity originally obtained and exercised jurisdiction, that juris- diction is not. overturned or impaired by this change of the authority at law, for unless there are prohibitory or restrictive words used, the uniform interpretation is, that they confer concurrent and not exclusive remedial authority. And acourt of law cannot by its own act, oust or repeal a jurisdiction which has rightfully attached in equity(c). (a) Story, ss. 78, 79. See East India Co. v. Boddam, 9 Ves. 466 ; Armitage v. Wads- worth, 1 Madd. 189. (6) Whitfield v. Faussat, 1 Ves. Sen. 392. (c) Atkinson v, Leonard, 3 Bro. C. C. 218 ; Ha parte Greenway, 6 Ves. 812; Bromley v. Holland, 7 Ves. 19, 20 ; Bast India Company, v. Boddam, 9 Ves. 466 ; Walmsley v. Child, 1 Ves. Sen. 341 ; Kemp». Pryor, 7 Ves. 248 ; British Empire Shipping Co. ». Somes, 3 K. & J. 437. 26 EQUITY JURISPRUDENCE. 59. One ofthe most common interpositions of equity under this head is, in the case of lost bonds, or other instruments under seal. Until recently there could be no remedy at law on a lost bond, because there could be no profert, without which the declaration would have been fatally defective(a). Now, however, courts of law entertain the jurisdiction, and dispense with the profert, but this circumstance is not per- mitted in the slightest degree to change the course in equity(d). 60. The original ground, therefore, of granting the relief, was the inadequacy of a court of law, to afford it in a suitable manner from the impossibility of making a profert, but inde- pendently of this ground, for the original interference of - equity, there is another satisfactory ground for the continuance of that interference. No other court can furnish the same remedy with all the fit limitations which justice may require, by granting relief only upon the terms of the party’s giving a suitable bond ofindemnity. Now, acourt of law is incompe- tent to require such a bond of indemnity as a part of its judg- ment, although it has sometimes attempted an analagous relief by requiring the previous offer of such an indemnity(c). But such an offer may, in many cases, fall far short of the just relief ; for, in the intermediate time, there may be a great change of the circumstances of the parties to the bond of in- demnity(d). In joimt bonds, there are still stronger reasons, for the equities may be different between the different defend- ants. And besides, a court of equity, before it will grant relief, insists that the defendant shall have the protection of the oath and affidavit of the plaintiff to the fact of the loss(e). (a) Whitfield v. Faussat, 1 Ves. Sen. 392, 393 ; Co. Lit. 35 (b) ; Rex v. Arundel, Hob. 109; Atkinson v. Leonard, 3 Bro. C. C. 218; Ea parte Greenway, 6 Ves. 812 ; Bromley v. Holland, 7 Ves. 19, 20; East India Company v. Boddam, 9 Ves. 466; Toulman v. Price, 5 Ves. 238. (b) Con, Stat. U. C. c. 22, 8. 78 ; And see Read v. Brokman, 3 7. R. 151; Totty v. Nesbit, 3T. R. 153, note. The jurisdiction of equity extends to destroyed bonds, County of Frontenac v. Bredin, 17 Gr. 645. (c) Hx parte Greenway, 6 Ves. 812; Pierson». Hutchinson, 2 Camp. 211; 8. v. 6 Esp. 126 ; Hansard v. Robinson, 7 B. & C. 90. (d) East India Company v. Boddam, 9 Ves. 466 ; Ex parte Greenway, 6 Ves. 812. (e) Story, s. 82; Bromley v. Holland, 7 Ves. 19, 20; Hx parte Greenway, 6 Ves. 812 ; Whitchurch v. Golding, 2 P. W. 541; Anon. 3 Atk. 17; Walmsley 7. Child, 1 Ves. Sen. 344, 345. ACCIDENT. QT 61. Where discovery only, and not relief, is the object of the bill, equity grants the discovery without any affidavit of loss, or offer of indemnity, and, in a variety of cases, this is all that the plaintiff desires(a). The ground of this distinction is, that, when relief is prayed, the proper forum of jurisdiction is sought to be changed from law to equity ; and in all such cases an affidavit ought to be required to prevent abuse of the process of the court. When discovery only is sought, the original jurisdiction remains at law, and equity is merely auxiliary. In all cases where relief is sought, there must be an affidavit of the loss, and when proper, an offer of indemnity also in the bill(d). 62. But the loss of a deed is not always a ground to come into a court of equity for relief. If there is no more in the case, although the party may be entitled to a discovery of the original existence and validity of the deed, courts of law may afford just relief, since they will admit evidence of the loss and contents of a deed, just as a court of equity will do(). To enable the party, therefore, in case of a lost deed, to come into equity for relief, he must establish, that there is no remedy at all at law, or no remedy which is adequate, and adapted to the circumstances of the case. The bill must always lay some ground, besides the mere loss of a title-deed, or other sealed instrument, to justify a prayer for relief; as, that the loss obstructs the right of the plaintiff at law, or leaves him exposed to undue perils in the future assertion of such right (d). 63. With reference to lost bills of exchange and other negoti-. able instruments, it has after some conflict of authority been decided that if a bill, note, or cheque, negotiable either by endorsement or by delivery only, be lost, no action will lie at (a) Dormer v. Fortescue, 3 Atk. 132 : Whitchurch v. Golding, 2 P.W. 541; Walms- ley v. Child, 1 Ves. Sen. 344, 345. (b) Story, s. 83; Walmsley v. Child, 1Ves. Sen. 344. (c) Whitfield v. Faussat, 1 Ves, Sen. 392, (d) Story, s. 84; See 1 Fonbl. Eq. B. 1, ch. 1, s. 3, note (f); ch. 3, 8, 3. See Mitf. Eq. Pl. by Jeremy, 113, 114. And see Walmsley, v. Child, 1 Ves. Sen. 344 :. Dalston v. Coatsworth, 1 P. W. 731; Dormer v. Fortescue, 3 Atk. 132. 28 EQUITY JURISPRUDENCE. the suit of the loser against any one of the parties to the in- strument, either on the bill or note itself, or on the considera- tion(a); and the law is the same though the bill has never been endorsed(b). In this case, therefore, the proper remedy is in equity, not only on the ground of there being no remedy at law, but also on account of the power equity possesses of compelling the plaintiff to give a proper indemnity - to the defendant. And the jurisdiction of equity over lost bills is not taken away by the Con. Stat. U. C. c. 42,s. 33, which provides that in an action founded upon a bill of exchange or other negotiable instrument, the court or a judge may order that the loss of the instrument shall not be set up, provided an indemnity against the claims of any other person upon such instrument is given to the satisfaction of the court or judge. 64. But if a bill or note, not negotiable, be lost, an action, it would seem, will lie either on the bill or on the consideration, for no indemnity would be necessary, and, consequently no relief can be had in equity(c). 65. As to destroyed negotiable instruments, the law seems ‘unsettled. The weight of authority seems in favour of the conclusion that at common law, by the custom of merchants, the holder on payment must deliver up the bill, and cannot ‘recover unless he do so, which he cannot when the instru- mentis destroyed. But it has been held in equity, that courts of equity never acquired jurisdiction to give relief on account of the destruction of a bill of exchange, because there was a ‘complete remedy in such a case at law/(d). 66. Upon grounds somewhat similar, courts of equity often interfere, where the party, from the long possession or exer- cise of a right over property, may fairly be presumed to have had a legal title to it, and yet has lost the legal evidence of it, ‘or is now unable to produce it. Equity, under such circum- (a) Hansard v. Robinson, 7 B. & C. 90; Crowe v. Clay, 9 Ex. 604. (b) Ramuz v. Crowe, 1 Ex. 167. (c) Byles on Bills, 351; Hansard v. Robinson, 7 B. & C. 95. (d) Wright v. Maidstone, 1K. & J. 708. ACCIDENT. 29 stances, acts upon the presumption, arising from such posses- sion, as equivalent to complete proof of the legal right. Thus, where a rent has been received and paid for a long time, equity will enforce the payment, although no deed can he produced to sustain the claim, or the precise lands, out of which it is payable, cannot, from confusion of boundaries, or other accident, be now ascertained(a). 67. There are many other cases of accident, where courts of equity grant both discovery and relief. One of the earliest cases in which they were accustomed tointerfere, was, where by accident a bond had not been paid at the appointed day, and it was subsequently sued ; or where a part only had been paid at the day(6). This jurisdiction was afterwards greatly enlarged in its operation, and applied to all cases, where relief , is sought against the penalty of a bond, upon the ground that it is unjust for the party to avail himself of the penalty, when an offer of full indemnity is tendered. The same principle governs in the case of mortgages, where courts of equity con- stantly allow a redemption, although there isa forfeiture at law(c). 68. Executors and administrators often pay debts and lega- cies upon the entire confidence that the assets are sufficient for all purposes. Yet from unexpected occurrences, or from debts and claims, made known at a subsequent time, it may turn out that there is a deficiency of assets.. Under such cir- cumstances they may be entitled to no relief at law. But in a court of equity, if they have acted with good faith, and with due caution, they will be clearly entitled to it, upon the ground, that, otherwise, they will be innocently subject to an unjust loss, from what the law itself deems an accident(d). (a) Story s. 87; Steward v. Bridger, 2 Vern. 516 ; Collet v. Jaques, 1 Ch. Cas. 120; Cox v Foley, 1 Vern. 359; Eton College v. Beauchamp, 1 Ch. Cas. 121 ; Holder v, Chambury, 3 P. W. 256; Duke of Leeds v. Powell, 1 Ves. Sen. 171; Duke of . Bridgewater v. Edwards, 6 Bro. P. C. 368; Duke of Leeds v. New Radnor, 2 Bro. C. C. 338, 518; Benson v. Baldwin, 1 Atk. 598. (b) Cary’s Rep. 1, 2; Seton v. Slade, 7 Ves. 273. (c) Story s. 89; Seton v, Slade, 7 Ves. 273, 274; Lennon v. Napper, 28. &1L, 684, 685. (a) Edwards v. Freeman, 2 P. W. 447 Johnson v. Johnson, 3 Bos. & Pull, 162, 30 EQUITY JURISPRUDENCE. 69. An executor or administrator once become fully respon- sible, by an actual receipt of a part of his testator’s property, for the administration thereof, cannot at law found his dis- charge in respect thereof, as against a creditor seeking’ satis- faction out of the testator’s assets, either on the score of me- vitable accident, or destruction by fire, or loss} by robbery or the like, or,of reasonable confidence disappointed, or of loss by any of the other various means, which afford an excuse to ordinary agents and bailees in cases of loss without any negli- gence on their part; and courts of law are disinclined to make such a precedent(a). 70. In equity, however, an executor or administrator stands in the position of a gratuitous bailee; with respect to whom the law is, that he is not to be charged without some default in him(b). Therefore, if any goods of the testator are stolen from the possession of the executor, or from the possession of a third person, to whose custody they have been delivered by the executor, the latter shall not, in equity, be charged with them as assets(c). Again, if the goods be perishable goods, and before any default in the executor to preserve them, or sell them at due value, they are impaired, he shall not answer for the first value, but shall give that matter in evidence to dis- charge himself (d). 71. Other cases, in which an executor or administrator would be entitled to relief in equity, may be put. Thus, if he should receive money, supposed to be due from adebtor to the estate, and it should turn out that the debt had been previously paid, and, before the discovery, he had paid away the money to cre- ditors of the estate; in such a case the supposed debtor may recover back the money in equity from the executor; and the 169,; Hawkins v. Day, Ambl. 160; Chamberlain v. Chamberlain, 2 Freem. 141. But see Coppin v. Coppin, 2 P. W. 296, 297; Orr v. Kaines, 2 Ves. Sen. 194; Wnderwood v. Hatton, 5 Beav. 36. As to what a to an admission of assets, see Coleman v, Whitehead, 3 Gr. 227. (a) Crosse v. Smith, 7 East, 246; Johason v. Johnson, 3 Bos. & Pull. 162, 169: (0) Wentw. Off. Ex. 235; Com. Dig. Assets, D. But see Wightwick v. Lord, 6H. L. 217. (c) Jones v. Lewis, 2 Ves. Sen. 240. (d) Clough v. Bond, 3M. & C. 496 ; Wms. on Exors. 1541. ACCIDENT. 81 latter may, in the same manner, recover it back from the cre- ditors to whom he paid it. In like manner, if an executor should recover a judgment, and receive the amount, and apply it in discharge of debts, and then the judgment should be re- versed, he is compellable to refund the money, and may recover it back from the creditors(q). 72. A court of equity will interfere on analagous grounds, in favour of an unpaid legatee, to compel the other legatees, who have been paid their legacies in full, to refund in propor- tion, if there was an original deficiency of assets to pay all the legacies, and the executor is insolvent. But equity will not interfere, if there was no such original deficiency, and there has been a waste by the executor(b). The reason of the distinction seems to be, that the other legatees in the first case have received more than their just proportion of the as- sets, but in the last case no more than their just proportion. There is, therefore, nothing inequitable in their availing them- selves of their superior diligence(c). But as creditors have a prior right to satisfaction out of the assets, legatees are always compellable to refund in their favour(d). 73. Other instances of relief in equity, being given upon the ground of accident, may be referred to. Where a minor is bound apprentice to a person, and a premium is given for the appren- ticeship to the master, who, during the apprenticeship becomes bankrupt, equity will interfere, and apportion the premium, upon the ground that the contract had failed from accident(e). So, if an annuity is directed by a will to be secured by public stock, -and an investment is made accordingly, sufficient at the time for the purpose, but afterwards the stock is reduced by (a) Story, ». 91; Pooley v. Ray, 1 P. W. 355; 2 Eq. Abridg. Ex’rs, 452, pl. 5; Pic- kering v. Stamford, 2 Ves. 583. (b) Coppin v. Coppin, 2 P. W. 296 ; Orr v. Kaines, 2 Ves. Sen. 194; Moore v. Moore, 2 Ves. 600; Anon. 1 P. W. 495; Noel v. Robinson, 1 Vern. 94, note [1]; Edwards v. Freeman, oP, W. 447. And see Fenwick v. Clarke, 31 L. J. Ch. 728. (c) Hodges v. Waddington, 2Vent. 360 ; Newman v. Barton, 2 Vern. 205 ; Orr v. Kaines, 2 Ves. 194. (d) Noel v. Robinson, 1 Vern. 90, 94, 460 ; Newman v. Barton, 2 Vern. 205 ; Nel thorp v. Hill, 1 Ch. Cas. 136 ; Anon. 2 Veen, 162 ; Hardwick v. Mynd, 1 Anst. 112. (e) Hale v. Webb, 2 Bro. C. C. 78, and note; Hx parte Sandby, 1 Atk. 149. 82 EQUITY JURISPRUDENCE. act of parliament, so that the investment becomes insuffi- cient, equity will decree the deficiency to be made up as an accident against the residuary legatees(a). | 74. The non-execution of a mere power will never be aided in equity. But where there is a defective execution of a power, resulting either from accident or mistake, or both, and also in regard to agreements to execute powers, which may generally be deemed a species of defective execution(b), the rule is dif- ferent. Equity will relieve in such a case, but only in favour of persons in a moral sense entitled to the same, and viewed with peculiar favour, and where there are no opposing equities on the other side(c). The aid of equity will be afforded in favour of a purchaser(d), which term includes a mortgagee and a lessee(e), creditors(/), a wife(g), a legitimate child(h), and a charity(z), but not in favour of the donee of the power, or a husband(j), or a natural child(‘), or grandchildren(2), or remote relations, much less of volunteers(m), or strangers generally. 75. But in cases of defective execution of powers, a dis- tinction must be drawn between powers created by private parties, and those which are specially created by statute. The latter are construed with more strictness, and whatever forma- lities are required by the statute must be punctually complied (a) Davies v. Wattier, 1S. & S, 463 ; May v. Bennet, 1 Russ. 370, And see Hatchett ‘uv. Pattle, 6 Madd. 4. a (6) 2 Chance on Powers, ch. 23; ss. 2824, 2825, 2897 to 2915. (c) Sug. on Powers, 532; 2 Chance on Powers, ch. 23; ss, 2817 to 2932. (ad) Fothergill v. Fothergill, 2 Freem. 257. (e) Barker v. Hill, 2 Chan. Rep. 113; Reid »v. Shergold, 10 Ves. 370; Bradley v. Bradley, 2 Vern. 163; Taylor v. Wheeler, 2 Vern. 564; J ennings v. Moore, 2 Vern. 609; Marquis of Donegal v. Greg, 13 Ir. Eq. 12, 52, (f) Pollard v. Greenvil, 1 Chan. R p. 10; Wilkes v. Holmes, 9 Mod. 485, (g) Clifford v. Burlington, 2 Vern. 379; Coventry v. Coventry, 2 P. W. 222. (h) Sneed v, Sneed, Ambl, 64; Hervey v, Hervey, 1 Atk, 561. (i) Innes v. Sayer, 7 Ha, 377; 3 Mac. & G. 606 ; Att. Gen.v.Sibthorp, 2 R. & M. 107. (j) Watt v. Watt, 3 Ves. 244. And see Hughes v. Wells, 9 Ha. 749. (k) Tudor v, Anson, 2 Ves. Sen. 582. (1) Watts v, Bullas, 1 P. W. 60; Freestone v. Rant, 3 Bro, C. C. 231; Chapman », Gibson, 3 Bro. C. C. 229; Hill v. Downton, 5 Ves, 564; Perry v. Whitehead, 6 Ves, 544, (m) Smith v, Aston, 1 Freem, 309, ACCIDENT. 33 with, otherwise the defect cannot, or, at least, may not be helped in equity(a). 76. The defects which will be remedied, may generally be said to be any which are not of the very essence or substance of the power. Thus, a defect in executing the power by will, when it is required to be by adeed, or other instrument, inter vivos, will be aided(b). So, the want of a seal, or of witnesses, or of a signature, and defects in the limitations of the property, estate, or interest, will be aided(c). But equity will not aid defects which are of the very essence or substance of the power ; as, for instance, if the power be executed with- out the consent of parties, who are required to consent to it(d). So, if it be required to be executed by will, and it is executed by an irrevocable and absolute deed(e). 77. A class of cases more common in their occurrence, and more extensive in their operation, will be found, where trusts, or powers in the nature of trusts, are required to be executed by the trustee in favour of particular persons, and they fail of being so executed by casualty or accident. In all such cases equity will interpose, and grant suitable relief, because it is not a mere power given to the trustee, but is a trust and duty which he ought to fulfil; and his omission so to do by accident, or design, ought not to disappoint the objects of the bounty(/). If the case were of a mere naked power, and not a power coupled with a trust, it would be very different(g). 78. What shall constitute an execution, or preparatory steps or attempts towards the execution of a power, entitling the (a) Earl of Darlington v. Pultney, Cowp. 267. But see 2 Chance on Powers, ch. 23, art. 2985. , (b) Tollett v. Tollett, 2 P. W. 489. See Mills v. Mills, 8 Ir. Eq. 192; 29 Vic. c. ‘28, s. 11. (c) Chance on Powers, ch. 23, ss. 2878, 2879, 2886, 2890. (d) Mansell v. Mansell, cited, Scott v. Tyler, 2 Bro. C. C. 450. (e) Story, s. 97; Sug. on Powers, 210; Reid v. Shergold, 10 Ves. 370; Adney v. Field, Ambl. 645 ; Anderson v. Dawson, 15 Ves. 532. And see Marjoribanks v. Hovendon, Dru. 11. (f) Warneford ». Thompson, 3 Ves. 573; Brown, v. Higgs, & Ves. 574. (g) Harding v. Glyn, 1 Atk. 469, and note ; Brown v. Higgs, 4 Ves. 709; 5 Ves. 495; 8 Ves. 561; 2 Chance on Powers, ch. 23, x, 1. 3 34 EQUITY JURISPRUDENCE, party to relief in equity, on the ground of a defective execution, has been largely and liberally interpreted. But some steps must be taken, or acts done such as are properly referrable to the power, with the sole and definite intention of executing it. A mere loose and indefinite intention to execute the power, without some steps being taken to give it legal effect, is not sufficient(a). 79, Where by accident or mistake, upon a transfer of a bill of exchange, or a promissory note, there has been an omission by the party to indorse it according to the intention of the transfer, the party, or, in case of his death, his executor or ad- ministrator, may be compelled in equity to make the indorse- ment, and if the party has since become bankrupt, or his estate is insolvent, his assignees will be compelled to make it, for the transaction amounts to an equitable assignment, and a court of equity will clothe it with a legal effect and title(6). 80. Those cases of accident, in which no relief will be granted by courts of equity, may next be considered. In the first place, in matters of positive contract and obligation, created by the party (for it is different in obligations or duties created by law), it is no ground for the interference of equity, that the party has been prevented from fulfilling them by accident, or, that he has been in no default, or, that he has been prevented by acci- dent, from deriving the full benefit of the contract on his own side(c). Thus, if a lessee covenants to pay rent, or to keep the demised estate in repair, he will be bound in equity as well as in law to do so, notwithstanding an inevitable accident or necessity by which the premises are destroyed or injured, as if they are burnt by lightning, or destroyed by public ene- mies, or by any other accident, or by overwhelming force. The reason is, that he might. have provided for such contin- gencies by his contract, if he had so chosen; and the law will (a) See Shannon v. Bradstreet, 18. & L. 60; Gullan v. Grove, 26 Beav. 64; Pom- fret v. Perring, 5 D. M. & G. 775 ; Carver v. Richards, 6 Jur. N. S. 410; Cooper 2. Martin, 12 Jur. N. 8. 887 ; Bambridge v. Smith, 8 Sim. 86. (0) Story, s. 99b; Watkinsv. Maule 2J.& W. 242. But see Edge », Bumford, 31 Beay. 247. (c) See Com. Dig. Chan. 3¥.5; Berrisford v. Done, 1 Vern. 98. ACCIDENT. 35 presume an intentional general liability, where he has made no exception (a). 81. And the like doctrine applies to other cases of contract, where the parties stand equally innocent(b). Thus, if there is a contract for a sale at a price to be fixed by an award dur- ing the life of the parties, and one of them dies before the award is made, the contract fails, and equity will not enforce it upon the ground of accident; for the time of making the award is expressly fixed in the contract according to the pleasure of the parties; and there is no equity to substitute a different period(c). So, if an estate should be sold, for a certain sum of money and an annuity, and the agreement should be fair, equity will not grant relief, although the party should die before the payment of any annuity(d). 82. Courts of equity will not grant relief to a party upon the ground of accident, where the accident has arisen from his own gross negligence or fault, for in such a case the party has no claim to come into a court of justice to ask to be saved from his own culpable misconduct. And, on this account, in general, a party coming into a court of equity is bound to show that his title to relief is unmixed with any gross misconduct or negligence of himself or his agents(e). 83. Courts of equity will not interfere upon the ground of accident, where the party has not.a clear vested right, but his claim rests in mere expectancy, and is a matter not of trust, but of volition. Thus, if a testator, intending to make a will in favour of particular persons, is prevented from doing so by accident, equity cannot grant relief, fora legatee or devisee (a) Story, s. 101 ; Bullock v. Dommitt, 6 T. R. 650; Brecknock, &c, Canal Co. » Pritchard, 6 T. R. 750; Paradine v. Jane, Aleyn, 27 ; Monk v. Cooper, 2 Str. 763 ; Belfour v. Weston, 1 T. R. 310; Pym v. Blackburn, 3 Ves. 34 ; Holtzapffell y, Baker, 18 Ves. 115 ; Harrison v. Lord North, 1 Ch. Cas. 83. (b) Com. Dig. Chancery, 3 F. 5. (e) Blundell v. Brettargh, 17 Ves. 232, 240. And see White v. Nutt, 1. P.-W. 61. (d)Story, ss. 103, 104 ; Mortimer v. Capper, 1 Bro. O. C. 156 ; Jackson. Lever, 3 Bro. C. C. 605. See also 9 Ves. 246. — (e) Story, s. 105; Ex parte Greenway, 6 Ves. 812. See also Bromley v. Holland, 7 Ves. 19; East India Co. w Boddam, 9 Ves. 467. eG 36 EQUITY JURISPRUDENCE. can take only by the bounty of the testator, and has no inde- pendent right, until there is a title consummated by law(a). 84, And no relief will be granted on account of accident, where the other party stands upon an equal equity, and is entitled to equal protection. 85. Against a bona fide purchaser, for a valuable considera- tion, without notice, a court of equity will not interfere on the ground of accident ; for, in the view of a court of equity, such a purchaser has as high aclaim to assistance and protection as any other person can have(b). 86. Uponageneral survey of the grounds of equitable juris- diction in cases of accident, it will be found that they resolve themselves into the following: that the party seeking relief has a clear right, which cannot otherwise be enforced in a suitable manner; or, that he will be subjected to an unjustifi- able loss, without any blame or misconduct on his own part; or, that he has a superior equity to the party from whom he seeks the relief(c). CHAPTER V. MISTAKE. 87. MISTAKE as recognized and remedied in equity is some- times the result of accident in its large sense, but, as distin- guished from it, it is some unintentional act, omission, or error, arising from ignorance, surprise, imposition or misplaced con- fidence. Mistakes may be either in matter of law, or in matter of fact(d). (a) Whitton v. Russsll, 1 Atk. 448. And see Brown. Higgs, 8 Ves. 561; Pierson ». Garnett, 2 Bro. C. C. 38, 226 ; Duke of Marlborough, ». Godolphin, 2 Ves, 61 ; Hard- ing v. Glyn, 1 Atk. 469 ; Tollet v. Tollet, 2 P. W. 489. (b) Story, s. 108, : (c) Story, s. 109. (d) Story, s. 110. MISTAKE. 37 88, The rule that ignorance of law is not an excuse, either for a breach or an omission of duty, is common to all systems of law. Ignorantia juris haud excusat, is the maxim of the common law/(a), and this maxim is equally respected in equity (0). But this maxim applies only when the word “jus” is used in the sense of denoting general law, the ordinary law of the country, and not when it is used in the sense of denot- ing a private right(c). 89. One of the most common cases, put to illustrate the doc- trine, is, where two are bound by a bond, and the obligee releases one, supposing, by a mistake of law, that the other will remain bound. In such a case the obligee will not be relieved in equity upon the mere ground of his mistake of the law(d). So, where a party having a power of appointment, executed it absolutely, without introducing a power of revo- cation, under a mistake of law, that being a voluntary deed it was revocable, relief was in like manner denied/(e). And where a clause containing a power of redemption, in a deed granting an annuity, after it had been agreed to, was deliberately excluded by the parties, under the mistaken idea that it would render the contract usurious, the court refused to restore the clause, or to grant relief(/). 90. The maxim is not, however, of universal application in equity(g). No exception to its general application is admitted when the word jus is used in the sense of denoting general (a) 1 Plowd. 342; see Manser’s case, 2 Rep. 3 a, b; Cook v. Wotton, 4 Leon. 190; Stevens v. Lynch, 12 East 38; Teede v. Johnson, 11 Ex. 840; Pooley v. Brown, 11 C. B. N. 5S. 566. (b) Malden v. Menill, 2 Atk. 8; Marshall v. Collett, 1 Y. & C. 232; Denys v. Shuck- burg, 4 Y. & C. 42; Mellers v, Duke of Devonshire, 16 Beav. 257 ; Midland Great Western Co. of Ireland v. Johnson, 6 H. L. 798. (c) Cooper v. Phibbs, L. R. 2 E. & I. App. 170. (a) Com. Dig. Chancery, 3 F. 8; Canny. Cann. 1 P. W. 723, 727. But see Hx- parte Gifford, 6 Ves. 805; Nicholson v, Revell, 4 Ad. & E. 675. (e) Worrall v. Jacob, 3 Mer. 195. (f) Story, ss. 112, 113; Irmham v. Child, 1 Bro. C. C. 92.” And see Pullen v. Ready, 2 Atk. 591; Frank v. Frank; 1 Ch. Ca. 84; Mildmay v. Hungerford, 2 Vern. 243; Stockley v. Stockley, 2 V. & B. 23, 30; Lord Portmore v. Morris, 2 Bro. C. C. 219 ; Marquis of Townshend v. Stangroom, 6 Ves. 332. (g) Naylor v. Winch, 1 S. & 8S. 555; Watson v, Marsden, 4D. M. & G. 230, 236; Stone v. Godfrey, 5 D. M. & G. 76, 90. 388 EQUITY JURISPRUDENCE. law, the ordinary law of the country ; but it is otherwise when the word is used in the sense of denoting a private right(a). Accordingly, equity will grant relief where a party has acted under a misconception, or ignorance of his title to property respecting which some agreement has been made or convey- ance executed(0). 91. It has been laid down as unquestionable doctrine, that if a party, acting in ignorance of a plain and settled principle of law, is induced to give upa portion of his indisputable property to another, under the name of a compromise, equity will relieve him from the effect of his mistake. But many, although not all of the cases, where the party knowing the facts has acted upon a mistake of the law, will be found to have turned, not upon the consideration of a mere mistake of law, stripped of all other circumstances, but upon an ad- mixture of other ingredients, going to establish misrepresenta- tion, imposition, undue confidence, undue influence, mental imbecility, or that sort of surprise, which equity uniformly regards as a just foundation for relief(c). 92. Mistake in law, to be a ground for relief in equity, must be of a material nature, and the determining ground of the transaction(d). It may be a misapprehension of the law, or of their private rights to property, by both parties to a trans- action, both making substantially the same mistake, or it may be a misapprehension by one of the parties alone, If an agreement be entered into between two parties in mutual mistake as to their respective rights, either of them is entitled (a) Kerr on Frauds, 330; Cooper v. Phibbs, L. R. 2 E. & I. App. 170. (6) Cann v. Cann. 1 Ph. 727; Pusey v. Desbouverie, 3 P. W. 320; Farewell ». Coker, cit. 2 Mer. 269; Cocking v. Pratt, 1 Ves. 400; Ramsden v. Hylton, 2 Ves. 304 ; Macarthy v. Decaix, 2 R. & M. 614; Clifton v. Cockburn, 3 M. & K. 99: Sturge v. Sturge, 12 Beav. 229; Davies v. Morier, 2 Coll. 308 ; Reynell v. Sprye, 8 Ha. 222, 255; Cox v. Bruton, 5 W. R. 544. (c) Naylor v. Winch, 18. & 8. 555; Leonard v. Leonard, 2B. & B. 180 ; Dunnage v. White, 1 Swanst. 137 ; Gordon v. Gordon, 3 Swanst. 400; Willan v. Willan, 16 Ves. 82;; Evans v. Llewellyn, 1 Cox, 340; Twining v. Morrice, 2 Bro.C. C, 326. And see Ramsden v, Hylton, 2 Ves 304 ; Broughton v. Hutt, 3D.& J. 501; Bingham ». Bing- ham, 1 Ves. 126 ; Stewart v. Stewart, 6 Cl. & Fin. 966. ne Stone v. Godfrey, 5D. M. & G.76 ; Re International Contract Co.{L. R. 7 Chan. MISTAKE. 39 to have it set aside(a). If the mistake be that of one party only, equity may, under the peculiar circumstances of the case, grant relief But ifit appear that the mistake was induced or encouraged by the misrepresentation of the other party to the transaction, or was perceived by him and taken advantage of, the court will be more disposed to grant relief than in cases where it does not appear that he was aware of the mistake(b). 93. Where a doubtful question arises, such as a question respecting the true construction of a will, a different rule pre- vails, and a compromise fairly entered into, with due deliber- ation, will be upheld in equity(c). It is enough to make a compromise valid, that there is a question to be decided be- tween the parties(d). A’ compromise of doubtful rights will not be set aside on any other ground than fraud(e). 94. If compromises of doubtful rights are otherwise unob- jectionable, they will be binding, and the right will not prevail against the agreement of the parties; for the right must al- ways be on one side or the other, and there would be an end of compromises, if they could be overthrown upon any subse- quent ascertainment of rights contrary thereto(/). If a com- promise of a doubtful right is fairly entered into, whether the uncertainty rests upon a doubt of fact, or a doubt in point of law, if both parties are in the same ignorance, the compromise isequally binding, and cannot be affected by any subsequent (a) Cooper v. Phibbs, L. R. 2E. & I. App. 149. (b) Pusey v. Desbouverie, 3 P. W. 315 ; Cocking v. Pratt, 1 Ves. 400; Macarthy v. Decaix. 2 R. & M. 614; Sturge v. Sturge, 12 Beav. 229; Schofield v. Temple, John. 166 ; Coward v. Hughes, 1K. & J, 443; Broughton v. Hutt, 3D. & J. 501; Re Saxon Life Assurance Co, 23. & H. 408; 1D. J. &S. 29; Talbot v. Hamilton, 4 Gr. 200. See Worsley v. Frank, 11 L. T. 392. ; (c) Stapilton v. Stapilton, 1 Atk.10 ; Gordon v. Gordon, 3 Swanst. 463; Leonard v, Leonard, 2B. & B. 179; Naylor v. Winch, 1S. & 8. 555; Harvey v. Cooke, 4 Russ. 34 ; Stewart v. Stewart, 6 Cl. & Fin. 969 ; Pickering v. Pickering, 2 Beav, 56 ; Lawton y. Campion, 18 Beav. 87; Partridge v. Stevens, 9 Jur. N. 8. 742 ; Bullock v. Downes, 9H. L. 1; Brooke v. Lord Mostyn, 2D. J. & S. 373 ; Lord Belhaven’s case, 3D. J. &S. 41. F (d) Ex parte Lucy, 4 D. M. & G. 356. And see Neale v. Neale, 1 Keen. 672. (e) Brooke v. Lord Mostyn, 2D. J. & 8. 373. (f) See Brown v. Pring, 1 Ves. Sen. 407, 408 ; Cann. v. Cann, 1 P. W. 727; Sta- pilton v. Stapilton, 1 Atk. 10; Stockley v. Stockley, 1 V. & B. 29, 31; Naylor v. Winch, 18. & 8. 555 ; Goodman vw. Sayers, 2 J. & W. 263; Pickering v. Pickering Beav. 31, 56 ; Underwood v. Lord Courtown, 2 S. & L. 67. 40 EQUITY JURISPRUDENCE. investigation, or future adjudication upon the right(a). But if the parties are not mutually ignorant, the case admits of a very different consideration, whether the ignorance be of a matter of fact or of law(b). The court of chancery will never hold parties, acting upon their rights, to be bound, unless they act with full knowledge of all the doubts and difficulties that arise. But if parties act, with full knowledge, if the agreement was fair and reasonable at the time, it will be binding, though it turns out that one gains an advantage from a mistake in point of law(c). And transactions are not, in equity, treated as binding even as family arrangements, where the doubts existing,. as to the rights alleged to be compromised, were not presented to the mind of the party interested(d). 95. The compromise of contested claims is fayoured in equity (e). But trustees are not justified in making doubtful com- promises of the interests of their cestwis que trust(f). And where a compromise was made under a misapprehension of facts, and was of recent date, it was set aside, the matter being regarded as still sub judice(g). 96. The doctrine sustaining compromises, for the honour or peace of families, has been carried further, in cases of family compromises(h). But to render even such compromises bind- ing, there must be an honest disclosure, by each party, of all material facts known to him, calculated to influence the judgment of the other in adopting the compromise; and any advantage taken by either party of the other's known ignor- (a) Leonard v. Leonard, 2 B. & B. 179, 180 ; Dunnage v.,White, 1 Swanst. 151, 152; Harvey v. Cooke, 4 Russ. 34 ; Stewart v. Stewart, 6 Cl. & Fin. 969. And see Gordon v. Gordon, 3 Swanst. 470: Pickering v. Pickering, 2 Beav. 31,56 ; Goymour ». Pigge, 8 Jur. 526. (8) Gordon v. Gordon, 3 Swanst. 400, 467,470, 473, 476 ; Stewart v. Stewart, 6 Cl. & Fin. 969. See also Mortimer v. Capper, 1 Bro. C. C, 158. (c) Gibbons v. Caunt, 4 Ves. 849. See also Dunnage v. White, 1 Swanst. 137. (a) Story, s. 131; Henley v. Cooke, 4 Russ. 34. (e) Att.-Gen. v. Boucherett, 25 Beav. 116,121. And see Rowley v. Rowley, L. R. 1H. L. Sc. 63; Dawson v. Newsome, 6 Jur. N.S. 625. (f) Wiles v. Gresham, 5 D. M. & G. 770. (g) Story, s. 131 a; Stainton v. The Carron'Company, 6 Jur. N. 8. 360; aff. 10: Jur. N. S. 783. (2) Stockley v. Stockley, 1 V. & B, 29; Bellamy v. Sabine, 2 Ph. 425. MISTAKE. 4T ance of such facts will render the compromise void(a). And especially if parties are not on equal terms, and one of them stands in such relation to the other, as renders it incumbent on him to give a full account of the matter in dispute, to the utmost of his knowledge, and he omits to do so, the court, al- though no intentional fraud may be imputable to such person, will not support a compromise entered into between the parties(d). 97. The disinclination of equity to set aside a family or other compromise entered into bona fide, and with a full disclosure of all facts known to either party, will be strengthened where subsequent arrangements have taken place on the footing of such compromise(c). But where there is a mixture of mistake of title, gross personal ignorance, liability to imposition, habitual intoxication, and want of professional advice, there has been manifested a strong disinclination of courts of equity to sustain even family settlements(d). 98. The jurisdiction of equity over mistake is exercised much more liberally where the mistake is in matter of fact, than where it is in matter of law. 99. Mistake of fact, is a mistake not caused by the neglect of legal duty on the part of the person making the mistake, © and consisting in an unconsciousness(e), ignorance(f), or for- getfulness(g), of a fact past(h), or present(z), material to the (a) Greenwood v. Greenwood, 2 D. J. & S. 28 ; Smith v. Pincombe, 16 Jur. 205. And see Groves v. Perkins, 6 Sim. 576. (6) Pusey v. Desbouverie, 3 P. W. 315, Sturge v. Sturge, 12 Beav 229. And see Langstaff v. Fenwick, 10 Ves. 405. (c) Clifton », Cockburn, 3 M. & K. 76 ; Bentley v. McKay, 31 Beav. 143 ; Cottle v. McHardy, 17 Gr. 342; Persse v. Persse, 7 Cl. & Fin. 279. (a) Story, s. 132 ; Dunnage v. White, 1 Swanst. 187 ; Persse v. Persse, 7 Cl. & Fin. 279. (e) Kelly v. Solari, 9 M. & W. ,54. (f) Cocking v. Pratt, 1 Ves. 400 ; East India Co. v. Neave, 5 Ves. 173; East India Co. v. McDonald, 6 Ves. 275 ; Hore v. Becher, 12 Sim. 465; Bellv. Gardner, 4 Man. & Gr. 11. (g) Kelly v. Solari, 9M. & W. 54; Lucas v. Worswick, 1 Moo. & R. 293. (h) See East India Company v. Neave, 5 Ves. 173 ; East India Co. v. Donald, 9 Ves. 275; Willan v. Willan, 16 Ves. 72 ; Macarthy v. Decaix,2R. & W. 614. (® Cocking v. Pratt, 1 Ves. 400 ; Eerste, Becher, 12 Sim. 465; Colyer v. Clay, 7 Beayv. 188: Broughton v. Hutt, 3 D. & J. 501. 42 EQUITY JURISPRUDENCE. transaction ; or in the belief in the present existence of a thing material to the transaction which does not exist(a), or in the past existence of a thing which has not existed. 100. The general rule as to mistakes of fact is, that an act done, or contract made, under a mistake or ignorance of a material fact, is relievable in equity(b). No person can be presumed to be acquainted with all matters of fact, and, there- fore, ignorance of facts does notimport culpable negligence(c). This rule applies not only to cases where there has been a studied suppression or concealment of the facts by the other side, which would amount to fraud; but also to many cases of innocent ignorance and mistake on both sides(d). So, if a party has bond fide entirely forgotten the facts, he will be en- titled to relief, because, ,under such circumstances, he acts under the like mistake of the facts, as if he had never known them(e). 101. The rule, as to ignorance or mistake of facts, entitling the party to relief, has this important qualification, that the fact must be material to the act or contract, that is, essential to its character. For though there may be an accidental ignorance or mistake of a fact, yet, if the act or contract is not materially affected by it, relief will be denied(/). 102. It is not necessary that, in cases of mutual mistake going to the essence of the contract, there should be any pre- sumption of fraud. Equity will often relieve, however inno- (a) See Hitchcock v. Giddings, 4 Price, 135 ;Colyer v. Clay, 7 Beav. 188 ; Hastee v. Couturier, 9 Ex. 102; 5,H. L. 673; Strickland v. Turner, 7 Ex. 208 ; Cocieane: Willis, L R 1 Chan. 58, (b) Pooley v. Ray, 1 P. W. 355; Cocking v. Pratt, 1 Ves. 400; Hitchcock »v. Giddings, 4 Price, 135; Leonard v. Leonard, 2 B. & B. 171. (c) Ignorance of Fone law is deemed ignorance of fact, Leslie v. Bailie, 2 Y. & C. 91, 96; McCormick v, Garnett, 5 D. M. & G. 278. (d) See Miles v. Stevens, 3 Burr. 21. (ce) Story, s. 140; Kelly v. Solari, 9 M. & W. 54, 58; East India Co. v. Neave, 5 Ves. 173; East Thais Co, v. Donald, 9 Ves. 275; Hoxs v. Becher, 12 Sim. 465; Colyer v. Clay, 7 Beav. 188 ; Hastie v. Couturier, 5 H. L. 673 ; Cochrane v. Willis, L. R. 1 Chan. 58. (f) Story, s. 141; Stone v. Godfrey, 5 D. M. & G. 76; Carpmael v. Powis, 10 Beav. 39; Trigge v. Lavallee, 15 Moo. P. ©. 276; O'Kill ». Whittaker, 1 D. & Sm, 83; Re International Contract Co. L. R. 7 Chan. 485. MISTAKE. 43 cent the parties may be. Thus, if one person should sella messuiage to another, which was, at the time, swept away by a flood, or destroyed by an earthquake, without any know- ledge of the fact by either party, a court of equity would relieve the purchaser, upon the ground that both parties in- tended the purchase and sale of a subsisting thing, and implied its existence as the basis of their contract(q). 103. In the application of the principle,it makes no difference that the subject-matter of the contract be known to both parties to be liable to a contingency, which may destroy it immedi- ately; for if the contingency has, unknown to the parties, already happened, the contract will be void, as founded upon a mutual mistake of a matter, constituting the basis of the contract(d). That the fact is material is not, in all cases, suificient to war- rant relief being given ; but it must be such as the party could not by reasonable diligence get knowledge of, when he was put upon inquiry(c). Though a court of equity will relieve against mistakes, it will not assist a man whose condition is attributable only to that want of due diligence which may be fairly expected from a reasonable person(d). Thus, a purchaser who is evicted by reason of a defect in title, which his legal adviser has overlooked, has no equity to recover his purchase- money(e). Nor can relief be had against a forfeiture, where a man who is charged with a legal obligation neglects to per- form it(/f). 7 104. Mistake of fact may be the mistake of one party only, or there may be a mistake of both parties. respecting the same matter ; and thus there arise two different conditions of the (a) Hitchcock v. Giddings, 4 Price, 135, 141. But see Sug. V. & P. 247; Stent v, Bailis, 2 P. W. 220; Colyer v. Clay, 7 Beav. 188; Hore v. Becher, 12 Sim. 465 ; Cochrane v. Willis, L. R. 1 Chan. 58. (0) Story, s. 143 a; Hitchcock v, Giddings. 4 Price, 135. (c) Story, s. 146. (d) Duke of Beaufort v. Neeld, 12 Cl & Fin. 248, 286; Leuty ». Hillas, 2 D. & J. 110; Wild Hillas, 18 L. J. Ch. 170; Wason v. Waring, 15 Beav, 151. (ec) Urmston v. Pate, 3 Ves. 235, n; See Cator v. Lord Pembroke, 1 Bro. C. C. 301; 2 Bro. ©. C. 283 ; Thomas v. Powell, 2 Cox, 394. (f) Gregory v. Wilson, 9 Ha. 683, 689. 44 EQUITY JURISPRUDENCE. question, which are governed by considerations ofa different character(q). 105. The mistake of one party only is attended with differ-. ent consequences, accordingly as the other party is or is not cognisant of the mistake ; consequently an agreement cannot be affected by the mistake of either party in expressing his intention, or in his motives, of which the other party has no knowledge. Anda party who has entered into an agreement under such a mistake, is bound by it and cannot assert his mistake in avoidance of the agreement(b). Upon this princi- ple, it is not competent in the case ofa written agreement for either of the parties to avoid its effect, by merely showing that he understood the terms in a different sense from that which they bear in their grammatical construction and legal effect. And when a party is mistaken in his motive for entering into a contract, or in his expectations respecting it, such mistake does not affect the validity of the contract(c). 106. In many cases, however, a court of equity refuses to grant a plaintiff specific performance of a contract, which the defendant has entered into under a mistake, even although the plaintiff was not privy to the mistake or implicated in its origin(d). A man, who seeks to take advantage of the plain mistake of another, cannot obtain the assistance of equity in doing so, but must rest satisfied with the remedy which a court of law will give him(e). The court of equity will not compel a man specifically to perform a contract which he never intended to enter into, or which he would not have en- tered ‘into, had its true effect been understood. If the des- cription of the property, the subject matter of the sale, or the terms of the contract are ambiguous, so that the one party (a) Kerr on Fraud, 341, (0) Stapylton v. Scott, 13 Ves. 427 ; Alvanley v. Kinnaird, 2 Mac. & G. 7; Cox 2. Bruton, 5 W. R. ‘544. And see Cottingham v. Boulton, 6 Gr. 186. (c) Chanter v. Hopkins, 4 M. & W. 399; Ollivant». Bayley, 5 Q. B. 288; Cumber- lege v. Lawson, 1 C. B. N.S. 709; Shirley v. Davis, cited 6 Ves. 678. But see Evans v. Bremridge, 2 K. & J. 174; 8D. M. & G. 100. (d) See Harris v. Pepperell, L. R. 5 Eq. 1; Denny v. Hancock, L. R. 6 Chan. 1. (e) Manser v. Back, 6 Ha. 448; Wood v, Scarth, 2 K. & J. 33; Needler v. Camp- bell, 17 Gr. 592. MISTAKE, 45 may have reasonably made a mistake as to the subject matter or terms of the contract, or may have reasonably put a different construction on the contract from that which was contem- plated by the other, the court wiil not assist either of them in enforcing the contract against the other(a). 107. Where the mistake is of one party alone to a contract, and it is known to the other at the time of making the con- tract, the fact that the latter knew ofthe mistake may have an important bearing on the validity of the contract. Ifthe one party has by misrepresentation caused the mistake, his con- duct may amount to fraud(b). If he knew of the mistake, but is not responsible for causing it, and merely remains silent, the question depends on the nature of the mistake and the general circumstances of the case. When the mistake is in the expression of the agreement, one of the parties cannot in equity hold the other bound to an expression of intention which he knew to be not in accordance with his real inten- tion(c). 108. If the mistake is not in the expression of the agreement, but in some fact materially inducing it, the mere knowledge in the one party of a mistake in the other party does not, in the absence of a duty to disclose, or other special circumstances, constitute a sufficient ground in equity for avoiding the agree- ment. Ifthe parties act fairly, and it is not a case where one is bound to communicate the facts to the other, upon the ground of confidence; or where the means of information are open to both parties, and each is presumed to exercise his own (a) Harnett v. Yielding, 28. & L. 549; Watson v. Marston, 4 D. M. & G. 230; Wood v. Scarth, 2K. & J. 33; Baxendale v. Seale, 19 Beav. 601; Webster v. Cecil, 30 Beav. 64; Hood v. Oglander, 34 Beav. 518. And see Manser v. Back, 6 Ha. 443; Alvanley v. Kinnaird, 2 Mac. & G.7; Falcke v. Gray,.4 Drew. 659; Shrewsbury & Birmingham Rail. Co. v. North Western Rail. Co.,6 H. L. 113; Calverly v, Will- iams, 1 Ves. 210; Jenkinson v. Pepys, cited 1 V. & B. 528; 15 Ves. 521; Clowes w. Higginson , 1 V. & B. 524; Neap v. Abbott, C. P. Coop, 333; Manser v. Back, 6 Ha, 447 ; Swaisland v. Dearsley, 29 Beav. 430; Moxey v. Bigwood, 8 Jur. N. 8. 803; Parker v. Taswell, 2 D. & J. 559. See Wycombe Rail. Co. v. Donnington Hospital, L. BR. 1 Chan. 268 ; McLaughlin ». Whiteside, 7 Gr. 573. (6) See Worsley v. Frank, 11 L. T. 392; Shearman v. Macgregor 11 Ha. 106. (c) Garrard v. Frankel, 30 Beav. 445. See also Harris v. Pepperell, L. R. 5 Eq. 1; ‘Worsley v. Frank, 11 L. T. 392. 46 EQUITY JURISPRUDENCE. skill, diligence, and judgment with regard toa subject matter, where there is no confidence reposed, but each party is deal- ing with the other at armslength, equity will not re- lieve(a). ' 109. Money paid voluntarily, under mistake of fact, is re- coverable both at law and in equity, unless it be clear that the party making the payment intended to waive all inquiry into the facts. It is not enough that he may have had the means of learning the truth, if he had chosen to make inquiry ;. _ the only limitation is that he must not waive all in- quiry(b). 110. Sometimes by mistake, a writien agreement contains less than the parties intended ; sometimes it contams more; and sometimes it simply varies from their intent by expressing something different from the truth of that intent. In all such cases, equity will reform the contract, so as to make it con- formable to the intent of the parties, if the mistake is clearly made out by satisfactory proofs(c). 111. The general rule of the common law is, that where a contract has been reduced to writing, verbal evidence cannot be given of what passed between the parties either before the written instrument was made, or during the time it was in a state of preparation, so as to add to or subtract from, or in any manner to vary or qualify, the written contract(d). But courts of equity admit parol evidence to show that by accident, mis- take or fraud, a written agreement does not contain the inten- (a) Wright v. Goff, 22 Beav. 207 ; The Metropolitan Counties Society v. Brown, 26 Beav. 454; Pring v. Brown, 1 Ves. 408; Mortimer v. Capper, 1 Bro. C. C. 158; Aunslie v. Medleycott, 9 Ves. 13; Crooks v. Davis, 6 Gr. 317; McRae v. Froom, 17 Gr. 357. (b) Kelly v. Solari, 9 M. & W. 54; Townsend v. Crowdy, 8 C. B. N.S. 477. See Gregory v. Pilkington, 8 D. M. & G. 616; Shand v. Grant, 15 C. B. N. §. 324. (c) Story, s. 152; Murray v. Parker, 19 Beav. 308. And see Allan v. Thorne, 3 Gr. 645 ; Russell v. Davy, 6 Gr. 165; White v. Haight, 11 Gr. 420; Chapin v. Clarke, 7 Gr, 75; Martin v. Reid, 8U. C. L. J. 186; Arran v. Amabel, 15 Gr. 701; 17 Gr. 163. re (da) Goss v. Lord Nugent, 3 B. & Ad. 64, 65. But see Wilson v. Wilson, 5 H. L. 66. So by Scotch law “‘a writing cannot be cut down or taken away by the testimony of witnesses.” Tait Ey. 326, 327. MISTAKE. 47 tion and meaning of the parties(a). To enforce the perform- ance of an agreement under such:circumstances would: be the highest injustice ; it would be to allow an act originating in fnnocence to operate ultimately as a fraud, by enabling the party who receives the benefit of the mistake or accident to resist the claims of justice under shelter of a rule framed to promote it(b). And such parol evidence is admitted whether the purpose of the suit be to rectify or rescind the agreement (c). 112. If parties enter into an agreement, but there is an error in the reduction of the agreement into writing, so that the written instrumentfails through some mistake, either in matter of law(d) or of fact, to represent the real agreement of the par- ties, or omits or contains terms or stipulations contrary to the common intention of the parties, a court of equity will correct and reform the instrument; so as to make it conformable to the real intent of the parties(e). So, also, if a conveyance, executed for the purpose of giving effect to and executing an agreement, should by mistake give the purchaser less than the agreement entitled him to, he may call on the court to (a) Marquis of Townshend v. Stangroom, 6 Ves. 332; Shelburne v. Inchiquin, 1 Bro. C. C. 338, 350; Simpson v. Vaughan, 2 Atk. 31; Langley v. Brown, 2 Atk. 203 ; Henkle v. Royal Assurance Co. 1 Ves. 314; Le Targe v. De Tuyle, 1 Gr. 227 ; Barn- hart v. Patterson, 1 Gr. 459 ; Stewart v. Horton, 2 Gr. 45; Papineauv. Gurd, 2 Gr, 512 ; Willard v. McNab, 2 Gr. 601; Greenshields v. Barnhart, 3 Gr. 1; Holmes v, Mat- thews, 3 Gr. 379 ; Forrester v. Campbell, 17 Gr. 379 ; McDonald v. Ferguson, 17 Gr. 652. But see Howland v. Stewart, 2 Gr. 61; McAlpine v.How, 9 Gr. 372; McDon- ald v. Rose, 17 Gr. 657. (b) South Sea Co.v. D’Oliffe, cited 1 Ves. 317; 2 Ves. 377; 5 Ves. 601 ; Pitcairne v. Ogbourne, 2 Ves. 375 ; Clowes v. Higginson, 1 V. & B. 524; Ball v. Stone, 18. & 8S. 210 ; Clinan v. Cooke, 18. & L. 32; Parsons v. Bignold, 13 Sim. 518; Murray v, Par- ker, 19 Beav. 308. The court will not correct an instrument made in consideration of marriage, except on the evidence of the mistake of both parties, Sells v. Sells, 1 Dr. & Sm. 45. And see Thompson v. Whitmore, 1 J. & H. 268; Bradford v. Romney, 30 Beav. 431. (c) Bentley v. Mackay, 31 L. J. Ch. 709; Garrard v. Frankell, 30 Beay. 451. (d) Wake v. Harrop, 1H. & C. 202. (e) Beaumont v. Bramley, T. & R. 41 ; Cockerellv. Cholmeley, Taml. 435 ; Ashurst v. Mill, 7 Ha. 502; Barrow v. Barrow, 18 Beay. 529; Murray v. Parker, 19 Beav, 308 ; Malmesbury v. Malmesbury, 31 Beav. 407 ; Scholfield v. Luockwood, 32 Beay.. 436 ; 33L. J. Ch. 106 ; Reade} v. Armstrong, 7 Ir. Ch, 375 ; Druiff v. Parker, L, R. 5 Eq. 187. 48 EQUITY JURISPRUDENCE. rectify the defective conveyance, and give him all that the agreement comprehended(@). 113. A person who seeks to reform an instrument on the ground of mistake, must be able to prove not only that there has been a mistake, but he must show exactly and precisely the form to which the deed ought to be brought, in order that it may be set right, according to what was really intended ; and rust be able to establish in the clearest and most satisfactory manner, that the alleged intention of the parties to which he desires to make it conformable, continued concurrently in the minds of all parties down to the time of its execution. The evidence must be such as to leave no fair and reasonable doubt that the deed does not embody the final intention of the parties(d). 114. Equity grants relief in cases of mistake in written contracts, not only when the fact of the mistake is expressly established, but also when it may fairly be implied from the nature of the transaction. Thus, where there has been a joint loan of money to two or more obligors, and they are by the instrument made jointly liable, but not jointly and severally, the court has reformed the bond, and made it joint and several, upon the reasonable presumption, from the nature of the transaction, that it was so intended by the parties, and was omitted by want of skill or by mistake(c). The debt being (m) Monro v. Taylor, 3 Mac. & G. 718 ; Leuty v. Hillas, 2D. & J. 120; Walker v. Armstrong, 8 D. M. &G. 544. In most, if not all the cases where the court has reformed an instrument, there has been something beyond the parol evidence, such as a draft of the agreement, written instructions or the like, but the court will act where the mis- take is already established by parol evidence, even where there is nothing to which the parol evidence may attach, Mortimer v. Shortall, 2 Dr. & War. 373 ; Lackersteen v. Lackersteen, 6 Jur. N.S. 1111; Tomlison v, Leigh, 11 Jur. N. S. 962. (0) Marquis of Townsend v. Strangroom, 6 Ves. 334; Beaumont v. Bramley, T. & R. 41, 50; Marquis of Breadalbane v. Marquis of Chandos, 2M. &. C. 740; Rooke vw. Lord Kensington, 2K. & J. 764; Fowler v. Fowler, 4D. & J. 265; Earl of Bradford v. Earl of Romney, 30 Beav. 431; Bentley v. Mackay, 31 L. J., Ch. 709; Sell v. Sells, 1 Dr. & Sm. 42. See Lloyd v Cocker, 19 Beav. 144. (c) Simpson v, Vaughan, 2 Atk, 31, 33; Bishop v. Church, 2 Ves. 100, 371 ; Thomas v, Frazer, 3 Ves. 399; Devaynes v. Noble, Sleech’s case, 1 Mer. 538; Sumner v. Powell, 2 Mer. 30, 85; Hoare v, Contencin, 1 Bro, ©.C. 27, 29; Ex parte Kendall, 17 Ves. 519 ; Underhill », Horwood, 10 Ves, 209, 227; Ex parte Symonds, 1 Cox. 200; Burn v. Burn, 3 Ves. 573, 583; Ex parte Bates and Henckill, 3 Ves. 400, note; Gray v. Chiswell, 9 Ves. 118; Thorpe v. Jackson, 2 Y. & C. 553. MISTAKE. 49 joint, the inference in such case is, that it is intended by all the parties, that in every event the responsibility should attach to each obligor, and to all equally. Formerly, in case of the death of one of the obligors, the survivor only was liable at law for the debt(a), but now the representatives of a de- ceased joint contractor are liable in the same manner as if the contract had been joint and several(b). 115. It seems now well established as a general principle, that every contract for a joint loan is in equity to be deemed, as to the parties borrowing, a joint and several contract, whe- ther the transaction be of a mercantile nature or not. In every such case it may fairly be presumed to be intended that the creditor should have the several, as well as the joint, security of all the borrowers for the repayment of the debt(c). Hence, if one of the borrowers should die, the creditor has a right to proceed for immediate relief out of the assets of the deceased party without claiming any relief against the surviving joint contractors, and without showing that the latter are unable to pay by reason of their insolvency(d). 116. But where the obligation exists only in virtue of the covenant, its extent can be measured only by the words in which it is conceived, and equity will not interfere. A part- nership debt is treated in equity as the several debt of each partner, although at law it is only the joint debt of all, because all the partners have had a benefit from the money advanced, or the credit given, and the obligation of all to pay exists, independently of any instrument, by which the, debt may have been secured(e). 117. Upon the same ground, a court of equity will not reform ajoint bond against a mere ‘surety, so as to make it several against him, upon the presumption of a mistake from the na- (a) Story, x. 162 ; Gray v. Chiswell, 9 Ves. 118; Hx parte;Kendall, 17 Ves. 525. (0) Con. Stat. U. C. e. 78, s. 6. (c) Thorpe v. Jackson, 2 Y. & C.553; Wilkinson v. Henderson, 1 M. & K. 582. But see Richardson v. Horton, 6 Beav. 185. (d) Story, s. 162; Wilkinson v. Henderson, 1M. & K, 582. (e) Sumner v. Powell, 2 Mer. 35. 4 50 EQUITY JURISPRUDENCE. ture of the transaction, but will require positive proof of an express agreement by him, that it should be several as well as joint(a). And on proof of such an express agreement, relief will be given as fully against a surety or guarantee, as against the principal party(). . 118. Courts of equity will also decree the surrender of a bond to be cancelled, where it has not been executed by all who were expected to become jointly bound, as co-sureties (c). And the party complaining is not called upon to shew that he has sustained any substantial injury from the non-execution by the other(d). 119. Where an application is made to rectify a settlement, or to reform a contract, on the ground of mistake, the question to be considered is, not what the parties would have done, had they been able to anticipate subsequent developments ; but what was their intention at the time the contract was exe- cuted(e). 120. Equity will not rectify a voluntary deed, unless all the parties consent. If any object, the deed must take its chance ag it stands(/). 121. A deed will not be reformed on petition or motion, but only upon regular bill for that purpose, wherein the proposed alteration is distinctly set forth ; and until the deed is reformed the court is bound to act upon it as it exists, although fully satisfied that it is at variance with the intention of the parties (9). (a) Rawstone v. Parr, 3 Russ. 539. (0) Story, s. 164; Crosby v. Middleton, 2 Eq. Ca. Abr. 188 F; Rawstone v. Parr, 3 Russ. 424, 539. (c) Story, ». 164a; Evans v. Brembridge, 2K. & J. 174; 2 Jur. N.S. 311; Bonser v. Cox, 4 Beav. 379; Rice v. Gordon, 11 Beav. 265 ; Rastall v- Att.-Gen. 17 Gr. 1. (d) Bonar v. McDonald, 3 H. L. 226; Rastall v. Att.-Gen. 17 Gr. 1. (e) Wilkinson v. Nelson, 7 Jur, N.S. 480. And see Lackersteen v. Lackersteen, 6 Jur. N.S. 1111. (f) Story, s. 164 e ; Broun v. Kennedy, 33 Beav. 133. But see Philipson v. Kerry, 32 Beay. 628. (g) Re Malet, 8 Jur. N. 8., 226. But see De La Touche’s Settlement, L. R. 10 Ea. 599. And see Bradford v. Romney, 30 Beav. 431; Walker v. Armstrong, 8 D. M. & G. 531 ‘ MISTAKE. 51 122. Sometimes conditions are annexed to a decree for re- forming a contract, not in the contemplation of the parties: when they entered into the contract. Thus where by mistake, in drawing up a lease of premises, the rent was stated at a lower rate than that stipulated by the parties, and the lessee had entered into possession, the court gave the lessee an election to continue the tenancy at the higher rate, or abandon and pay for use and occupation during his occupancy, at the higher rate, on being compensated for all repairs of a perma- nent character, but not for the expense of taking possession and establishing himself in business/a). 123. It is open to the crown to show itself misinformed in matters of fact, or mistaken in law in respect of its grant, in cases where it would not be open to a subject to avoid or re- form his deed, upon the same grounds. But the fact of mistake must be established like other facts, and such evidence must be laid before the court as will convince the mind of the -court to a reasonable degree of certainty that the patent was issued in mistake(d). 124. In like manner equity grants relief where an instru- ment has been delivered up, or cancelled under mistake, and in ignorance of the facts material to the rights derived under it, upon the ground that the party is conscientiously entitled to enforce such rights, and that he ought to have the same benefit as if the instrument were in his possession with its entire original validity().) 125. In regard to mistakes in wills, courts of equity have jurisdiction to correct them, when they are apparent upon the face of the will, or may be made out by a due construction of its terms. But the mistake must be apparent on the face of the will, otherwise there can be no relief, for parol evidence, or evidence dehors the will, is not admissible to vary or control (a) Story, s, 164; Garrard v. Frankel, 30 Beav. 445. (0) Att.-Gen. v. Garbutt, 5 Gr. 184, 186, And see Saugeen v. Church Society, 6 Gr. 538. (c) East India Co. v, Donald, 9 Ves. 275; Hast India Co. x, Neave, 5 Ves. 173 ; Scholefieldv. Templer, Johns. 155, 52 EQUITY JURISPRUDENCE. the terms of the will, although it is admissible to remove a latent ambiguity(a). 126. A mistake cannot be corrected, or an omission supplied, unless it is clear by fair inference from the whole will, that there is such a mistake or omission(b). In all cases the first thing to be proved is that there is a mistake(c). It must be a clear mistake demonstrable from the structure and scope ofthe wili(d). Thus if there is in a will, a mistake in the com- putation of a legacy, it will be rectified in equity(e). So, if there is a mistake in the name, description, or number of the legatees intended to take(/’), or in the property intended to be bequeathed(g). 127. Relief will not be granted, unless the mistake be clearly made out(h). And so, if the words of the bequest are plain, evidence of a different intention is inadmissible to establish a mistake(d); nor will a mistake be rectified, if it does not ap- pear clearly what the testator would have done in the case, if there had been no mistake(/). 128. It is clear that in point of law a mere mis-description of a legatee will not defeat the legacy. But it is equally clear that wherever a legacy is given to.a person under a particular character, which he has falsely assumed, and which alone can (a) Story, s. 179; Milnerv. Milner, 1 Ves. Sen. 106 : Ulrich v. Litchfield, 2 Atk. 373 ; Hampshire v. Peirce, 2 Ves. 216 ; Bradwin v. Harper, Ambl. 374; Stebbing v. Walkey, 2 Bro. C. C. 85 ; Danvers v. Manning, 2 Bro. C. C. 18 ; Campbell v. French, 3 Ves. 321 ; Guardhouse v. Blackburn, L. R. 1 P. & D. 109. But see Reffell v. Reffell, L. R. 1 P.& D. 139. (6) Phillips ». Chamberlaine, 4 Ves. 57. (c) Mellish v. Mellish, 4 Ves. 49. (d) Phillips v. Chamberlaine, 4 Ves. 51; Holmes v. Custance, 12 Ves. 279; Purse v. Shaplin, 1 Atk, 415 ;.DelMare v. Rebello, 3 Bro. C. C. 445. (e) Milner v. Milner,;1 Ves. Sen, 106 ; Doorv. Geary, 1 Ves. Sen. 255; Danvers v. Manning, 2 Bro. C. C. 18; Giles v. Giles, 1 Keen, 692. (f ) Stebbing v. Walkey, 2 Bro. C. C. 85; Rivers’s case, 1 Atk. 410; Parsons v. Par- sons, 1 Ves. 266; Beaumont v. Fell, 2 P. W. 141; Hampshire v. Pierce. 2 Ves. Sen. 216; Bradwin v. Harpur, Amb. 374. (g) Door v. Geary, 1 Ves. Sen. 255; Selwood v. Mildmay, 3 Ves. 306. (h) Holmes v. Custance, 12 Ves. 279. (1) Chambers v. Minchin, 4 Ves. 675. (3) See Smith v. Maitland, 1 Ves. 363. And see Taylor v. Richardson, 2 Drew, 16 ; Standen v. Standen, 2 Ves, 589. MISTAKE, 53 be supposed the motive of the bounty, the law will not permit him to avail himself of it; and therefore he cannot demand his legacy. Thus if a woman gives a legacy to a man describing him as her husband, and in point of fact the marriage is void, he having a former wife then living, this bequest will, in equity; be decreed void(a). 129. Where a legacy is revoked, or is given upon a manifest mistake of facts, equity will afford relief. Thus, if a testator revokes legacies to A.& B., giving as a reason, that they are dead, and they are in fact living, equity will hold the,revoca- tion invalid, and decree the legacies(b). But a false reason given for a legacy, or for the revocation of a legacy, is not always a sufficient ground to avoid the bequest or revocation in equity. To have such an effect, it must be clear that no other motive mingled in the legacy, and that it constituted the substantial ground of the act or bequest(c). 180. An election made by a party under a mistake of facts, or a misconception as to his rights, is not binding in equity. To constitute a valid election, the election must be made with full knowledge of the circumstances, and of the right to which the party put to the election was entitled(d). In order to pre- sume an election from the acts of any person, he must be shown to have had a full knowledge of all the requisite cir- cumstances, as to the amount of the different properties, and his own rights in respect of them(e). A person who has elected under a misconception is entitled to make a fresh election /). 181. An application to the court for relief on the ground of (a) Kennel] ». Abbott, 4 Ves. 808. But see Giles v. Giles, 1 Keen, 685, 692; Rish- ton v. Cobb, 5 M. & U. 145. Re Petts, 27 Beav. 576 ; Schloss v. Stebel, 6 Sim. 1. (6) Campbell v. French, 3 Ves, 321. (c) Kennell v, Abbott, 4 Ves. 808. See also Wilkinson v. Joughin, 12 Jur. N. §. 330,; Re Petts, 27 Beav. 576 ;5 Jur. N. S. 1235. ‘(d) Wintour v. Clifton, 21 Beav. 468 ; 3 Jur. N. 8. 74; Pusey v. Desbouverie, 3 P. W. 315. (ec) Wake v. Wake, 1 Ves. 335; Reynard v. Spence, 4 Beav. 103; Edwards v. Morgan, 13 Pri, 782; 1 Bligh. NS. 401; Westacott v. Cockerline, 13 Gr. 79. (f) Kidney v. Cousmaker, 12 Ves. 136. 54 EQUITY JURISPRUDENCE. mistake, must be made with due diligence(a) ; and, as in case of fraud, time runs from the discovery(b). 132. The jurisdiction to relieve against mistake being an equitable one, is exercised upon equitable principles, and the court will not set aside a transaction without restoring the party against whom it interferes, as far as possible, to that which shall be a just situation with reference to the rights which he had antecedently to the transaction(c). If the court sees that the parties cannot be restored to that which shall be a just situation with reference to the rights which they had antecedently to the transaction, or that the mistake cannot be corrected without breaking in upon or affecting the rights of innocent parties, who were not aware of the existence of the mistake, when their right accrued, relief cannot be given(d). CHAPTER VI. ACTUAL FRAUD. 183. Asa general rule, courts of equity exercise a general jurisdiction in cases of fraud, sometimes concurrent with, and sometimes exclusive of, other courts(e). In a great variety (a) Beaumont v. Bramley, T. & R. 48; Denys v. Shuckburgh, 4 Y. & C. 53; Stone v. Godfrey, 5D. M. & G. 76; Bentley v. Mackay, 31 Beav. 143; 31 L. J. Ch. 709. (b) Brooksbank v. Smith, 2 Y. & C. 58. (c) Bellamy v. Sabine, 2 Ph. 425; King v. Savery, 5H. L. 627, And see McAlpine v. Swift, 1B. & B. 293; Dacre v. Gorges, 2S. & S. 454; Millar v. Craig, 6 Beav. 433; Meadows v. Meadows, 16 Beav. 404; Scholfieldv. Templer, Johns. 155. (d) Malden v. Merrill, 2 Atk., 8 ; Clifton » Cockburn, 3M. & K. 76; Blackie. Clarke, 15 Beav. 595 ; Re Saxon Life Assurance Co. 2J & H. 408; Bateman v. Boynton, L. R. 1 Chan. 359. (e) Story, s. 184; Barker v. Ray, 2 Russ. 63. Mr. Fonblanque, in his note [B. 1, ch. 2, s. 3, note uJ, says: “ Whether courts of equity could interpose, and relieve against fraud practised in the obtaining of a will, appears to have been formerly a point of considerable doubt.” In some cases the jurisdiction was distinctly asserted; as in Maundy v. Maundy, 1 Ch. Rep. 66; Well v. Thornagh, Prec. Ch. 123; Goss». Tracy, 1 P. W, 287 ; 2 Vern. 700; Morgan v. Annis, 3 D. & Sm. 461; in other cases such jurisdiction was disclaimed, though the fraud was gross and palpable ; as in Roberts v. Wynne, 1 Ch. Rep. 125; Archer v. Moss, 2 Vern. 8; Herbert v. Lownes, 1 Ch. Rep. 13; Thynn » Thynn. 1 Vern. 296; Devenish v. Barnes, Prec. Ch. 3; Barnesley ACTUAL FRAUD. 55 of cases there is a remedy, and an effectual remedy at law(a),and with reference to these, equity may be said to possess a gen- eral, and perhaps a universal, concurrent jurisdiction(b). But there are many cases of fraud entirely without remedy at law, and over these equity possesses an exclusive jurisdiction(c). 134. It is not easy to define fraud in the extensive significa- tion in which courts of equity use that term(d) ; andthese courts have never laid down, asa general proposition, what shall constitute fraud (e), or any general rule, beyond which they will not go upon the ground of fraud, lest other means of avoiding the equity of the courts should be found ‘out(/). 135. Fraud, as that term is used in equity, includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, or by which an undue and unconscientious advantage is taken of ano- ther(g). And courts of equity interfere in cases of fraud, not only to set aside acts done, but they will also interfere, if acts have by fraud been prevented from being done by the parties, and treat the case exactly as if theacts had been done(h). Powell, 1 Ves. 287 ; Marriott v. Marriott, Str. 666. See Dimes v. Steinberg, 2 Sm. & Giff. 75. By Con. Stat. U. C.c. 12, s. 28, the Court of Chancery in this Province has jurisdic- tion tojtry the validity of last wills and testaments, whether the same respect real or per- sonal estate, and to pronounce such wills and testaments to be void for fraud, or undue influence or otherwise, in the same manner and to the same extent, as the Court has jurisdiction to try the validity of deeds and other instruments. Menzies v. White, 9 Gr. 574; Waterhouse ». Lee, 10 Gr. 176 ; Martin v. Martin, 12 Gr. 500; 15 Gr. 586 ; Perrin v. Perrin, 19 Gr. 259. (a) 3 Black, Comm. 431; 1 Fonbl. Eq. B. 1, ch. 2, s. 3, note (r); 4 Inst. 84; Bright y, Enyon, 1 Burr, 396. (b) See Ramshire v. Bolton, L. R.8 Eq. 294; Hillv. Lane, L. R. 11 Eq, 215 ; Hoare y. Brembridge, L. R. 14 Eq. 532; 8 Chan. 22. (c) Man v. Ward, 2 Atk. 229; Garth v. Cotton. 3 Atk. 755; Colt v. Wollaston, 2 P. W. 156; Stent v. Bailis, 2 P. W. 220; Chesterfield v. Jansen, 2 Ves. Sen. 155 ; Evans v. Bickwell, 6 Ves. 182; Clarke v. Manning, 7 Beav. 167 ; Trail v. Baring, 33 L. J. Ch. 521; Stewart v. Great Western Rail. Co. 2 Dr. & Sm. 438: 11 Jur. N. S. 627. (d) Green v. Nixon, 23 Beav. 530; Reynell v. Sprye, 1D. M. & G. 691. (e) Mortlock v. Buller, 10 Ves. 306. . (f) Lawley v. Hooper, 3 Atk. 279; Anderson». Fitzgerald, 4 H. L. 571; Webb». Rorke, 2 8. & L. 666. (g) 1Fonbl. Eq, B. 1, ch. 2, s. 3, note (r); Chesterfield ». Jansen, 2 Ves. Sen. 155; Bromley v. Smith, 26 Beav. 671 ; Spackman’s case, 34.L. J. Ch, 321. (h) Story s. 187 ; Middleton v, Middleton, 1 J. & W. 96 ; Lord Waltham’s case, cited 11 Ves. 638.. © 56 EQUITY JURISPRUDENCE. 136. The following enumeration of the different kinds of frauds was given by Lord Hardwicke(a), First : Fraud, which is dolus malus, may beactual, arising from factsand circumstances of imposition, which is the plainest case. Secondly : It maybe apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses, and not under delusion, would make-en the one hand, and as no honest and fair man would accept on the other; which are inequitable and uncon- scientious bargains, and of such even the common law has taken notice(b). Thirdly: Fraud, which may be presumed from the circumstances and conditions of the parties contract- , ing. Fourthly: Fraud, which may be collected and inferred, in the consideration of a court of equity, from the nature and circumstances of the transaction, as being an imposition and deceit on other persons, not parties to the fraudulent agree- ment. Fifthly : Fraud, in what are called catching bargains with heirs, reversioners, or expectants. 187, Fraud being so various in its nature, and so extensive in its application to human concerns, it would be difficult to enumerate all the instances in which courts of equity will grant relief under this head. It will be sufficient to collect some of the more marked classes of cases, in which the prin- ciples which regulate the action of courts of equity are fully developed, and from which analogies may be drawn to guide us in the investigation of other and novel circumstances(c). 138, Although it is equally a rule in courts of law and courts of equity that fraud is not to be presumed, but must be estab- lished by proof, courts of equity will act upon circumstances, as presumptions of fraud, which courts oflaw would not deem satisfactory proofs(d). In other words, equity will grant reliet upon the ground of fraud, established by presumptive evidence, (a) Chesterfield », Jansen, 2 Ves. Sen.155. (6) See James v. Morgan, 1 Lev. 111. (c) Story, s. 189, (@) Trenchard v. Wanley, 2 P. W. 166; Townsend v. Lowfield, 1 Ves. 35; 3 Atk. 536 Walker v. Symonds, 3 Swanst. 61 ; Bath and Montague‘s case, 3 Ch. Cas. 85; Chester - field v, Jansen, 2 Ves. Sen. 155; Fullager v, Clark, 18 Ves. 483. ACTUAL FRAUD. 57 which evidence courts of law would not always deem sufficient proof to justify a verdict at law. 139. One of the largest classes of cases, in which courts of equity are accustomed to grant relief, is where there has been a misrepresentation, or suggestio falsi(a). To justify, however,. an interposition in such cases, it is not only necessary to estab- lish the fact of misrepresentation ; but that it is in a matter of substance, or important to the interests of the other party, and that it actually does mislead him(b). For, if the misrepresen- tation was of a trifling or immaterial thing, or if the other party did not trust to it, or was not misled by it ; or if it was vague and inconclusive in its own nature; or ifit was upon a matter of opinion or fact, equally open to the inquiries of both parties, and in regard to which neither could be presumed to trust the other ; in these and the like cases there is no reason for a court of equity to interfere to grant relief upon the ground of fraud(c). 140. Where a party misrepresents a material fact, or pro-- duces a false impression, intentionally or by design, in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage over him, there is positive fraud in the truest sense of the term(d ). 141. It is wholly immaterial whether the party misrepre- senting a material fact knew it to be false, or made the asser- tion without knowing whether it were true or false(e), for the (ay Collins v. Cave, 6 H. & N. 131; Broderick v. Broderick, 1 P. W. 240; Jarvis. v Duke, 1 Vern. 20; Evans v. Bicknell, 6 Ves. 173, 182; Barry v. Croskey, 2J. & H. 22; Fraser v. Sutherland, 2 Gr. 442; Blain v. Terryberry, 11 Gr. 286 ; Lindsay Petro-- leum Oil Co. v. Hurd, 16 Gr. 147; on App. 17 Gr. 115. And see Westbrooke v. Att.-Gen. 11 Gr. 330. (b) Neville v. Wilkinson, 1 Bro. C. C. 546; Turner v. Harvey,‘Jac. 178; Small v. Atwood, 1 Younge, 407, 461; in App. 6 Cl. & Fin. 232, 395 ; Burnesv. Pennell, 2H. L. 497, 529; Smith », Kay, 7 H. L. 750, 775; Nicol’s case, 3 D. & J. 387 ;. Jameson v. Stein, 21 Beav. 5; Denne v. Light, 8 D. M. & G. 774; Barrett’s case,. 3D. J. & 8.30; Kennedy v. Panama &e. Co. L. R. 2 Q. B. 580. (c) Story s. 191; Trower v. Newcome, 3 Meriv. 704; Atwood v. Small, 6Cl. & Fin, 232; 1 Younge, 407. (d) Atwood v, Small, 6 Cl. & Fin. 232; 1 Younge, 407; Taylor v. Ashton, 11 M. & W. 401. ; ‘ (e) See Wright v. Snowe, 2 D. & Sm. 321. And see Hutton». Rossiter, 7 D. M. & G. 23; Pulsford v. Richards, 17 Beav. 94; Rawlins v. Wickham, 1 Giff. 355 ; 3 D:. & J. 304. 58 EQUITY JURISPRUDENCE. affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of-what is known to be positively false(a). And even if the party innocently misrepresents a material fact by mistake, it is equally conclusive, for it operates as a surprise and imposition upon the other party(b). And the same general principles apply, whether the fraud was perpetrated by the party directly interested, or by an agent, ifthe principal adopts the act in which the fraud was committed. If the latter takes the benefit of his agent’s fraud, it is immaterial whether the principal or the agent originally concocted the fraud, the principal, if he adopts his agent’s act, will be held impli- cated to the fullest extent(c). 142. As a matter of conscience, any deviation from the most exact and scrupulous sincerity is contrary to the good faith that ought to prevail in contracts. But courts of justice are compelled to assign limits to the exercise of this jurisdiction far short of the principles deducible ex equo et bono(d). Ac- -cordingly a misrepresentation, in order to justify a recission of a contract, must be something material, and which constituted an inducement or motive to the act or omission of the other party, and by which he is actually misled to his injury(e). 143. In the next place, the mispresentation must not only be in something material, but it must be in something in (a) Ainslie v. Medlycott, 9 Ves. 21; Graves v. White, Freem. 57. See also Pearson Morgan, 2 Bro. C. C. 389; Foster v. Charles, 6 Bing. 396; 7 Bing. 104; Taylor v. _Ashton, 11 M. & W. 401. (b) See Pearson v. Morgan, 2 Bro. C. C. 389; Burrows v. Locke, 10 Ves. 475; De Manville v. Compton, 1 V. & B. 355 ; Ex parte Carr, 3 V. & B. 111; Smith v. Reese ‘River Co. L. R. 2 Eq. 264; Denton v. McNeil, L. R. 2 Eq. 352; Henderson 2. Lacan, L. R.5 Eq. 249 ; Ship v. Crosskill, L. R. 10 Eq. 73. (c) Cornfoot v. Fowke, 6 M. & W.358 ; Scholefield v. Templer, Johns. 155. And -see Hartopp v. Hartopp, 21 Beav. 259; Wilde v. Gibson, 1 H. L. 605 ; Foy v. Mer- tick, 8 Gr. 323; Latham v. Crosby, 10 Gr. 308. But see Reynell v. Sprye, 1D. M. & G. 684. (d) See Mahon v. McLean, 13 Gr. 361. (e) Jarvis v. Duke, 1 Vern. 19; Phillips v. Duke of Bucks, 1 Vern. 227 ; Lowndes v. Lane, 2 Cox. 363; Broderick v. Broderick, 1 P. W. 239; Pusey v. Desbouverie, .3P. W. 318 ; Winch v. Winchester, 1 V. & B. 375; Geddes v. Pennington, 5 Dow, 159; Pillmore v. Hood, 6 Scott, 827; Jennings v. Broughton, 5 D. M. & G. 126; ‘Goldicult v. Townsend, 28 Beay. 445 ; Robson v. Earl of Devon, 4 Jur. N.S. 245. ACTUAL FRAUD. 59 regard to which the one party places a known trust and confi- dencein the other(a). It must not be a merematter of opinion(b), equally open to both parties for examination and inquiry, where neither party is presumed to trust to the other, but to rely on his own judgment. Not but that misrepresentation, even in a matter of opinion, may be relieved against as a con- trivance of fraud, in cases of peculiar relationship or con- fidence, or where the other party has justly reposed upon it, and has been misled by it. But if a purchaser, choosing to judge for himself, does not avail himself of the knowledge or means of knowledge open to him or his agents, he cannot be heard to say that he was deceived by the vendor's misrepre- sentations, for the rule is, caveat emptor(c). 144. To this ground of unreasonable indiscretion and con- fidence, may be referred the common language of puffing and commendation of commodities, which, however reprehensible in morals, as gross exaggerations or departures from truth, are nevertheless not treated as frauds which will avoid contracts. In such cases, if the matter is equally open to the observation, examination, and skill of both, the other party is bound, and indeed is understood, to exercise his own judgment(d). The maxim applies: Simplex commendatio non obligat. 145. In the next place, the party must be misled by the misrepresentation, for it cannot be said to influence his con- duct, if he knows it to be false, and it is his own indiscretion, and not any fraud or surprise, of which he has reason to com- (a) Lindsay Petroleum Oil Co. v. Hurd, 16 Gr. 147. (b) Higgins v. Samels, 2 J. & H. 464; Leyland v, Illingworth, 2 D. F. & J. 248; L. R. 2H. L. 99; Drysdale v. Mace, 5D. M. & G. 107; Kisch v. Central Vene- zuela Rail. Co. 3D. J. & S. 122; Denton »% McNeil, L. R. 2 Eq. 352; Dimmock v. Hallett, L. R. 2 Chan. 27; New Brunswick and Canada Rail. and Land Co. v. Conybeare, 9 H. L. 711. (c) Story, ss. 197, 200 a. ; Atwood v. Small, 6 CL. & Fin. 232; McRae v. Froom, 17 Gr. 357; Lowndes v Lane, 2 Cox, 363; Robson v. Earl of Devon, 4 Jur. N.S. 245. Where there is misrepresentation, the maxim caveat emptor, must be applied with great caution, Colby v. Gadden, 34 Beav. 416. A condition of sale, that misdescription or errors shall not annul the sale, does not cover a fraudulent misrepresentation, Shackleton v. Sutcliffe, 1 D. & Sm. 609; Leslie v. Thompson, 9 Ha. 273; and see Edwards v. Wickwar, L. R. 1 Eq. 68. (d) Story, s. 201; Crooks v. Davis, 6 Gr. 317; McRae v. Froom, 17 Gr. 357. 60 EQUITY JURISPRUDENCE. plain under such circumstances(a). The party must also have been misled to his prejudice or injury ; for courts of equity do not, any more than courts of law, sit for the purpose of en- forcing moral obligations, or correcting unconscientious acts, which are followed by no loss or damage(d). 146. The defrauded party may, however, by hissubsequent acts, with full knowledge of the fraud, deprive himself of all right to relief as well in equity as at law(c). Thus, if with full knowledge of the fraud, he should settle the matter in relation to which the fraud was committed, and give a release to the party who has defrauded him, he would lose all title to legal and equitable relief. The like rule would apply, if he knew all the facts, and with such full information he continued to deal with the party(d). 147. Where property is bought at an under price, through the mispresentation of an agent who derived no pecuniary advantage from the transaction,the principal is responsible. And where the same plaintiff had been induced to part with his pro- perty, at such undervalue, at two different times, through the misrepresentation of two different agents of the same prin- cipal, one bill may be brought to set aside both transactions, although in themselves wholly distinct, and the same will not be demurrable for multifariousness(e). 148. Brokers who sell their own property under the delusion upon the mind of the purchaser that they are selling on behalf of other parties, whereby the purchaser is induced either to make the purchase, which he otherwise would not have done, or to (a) Story s. 202: Nelson v. Stocker, 4D. & J. 458. (6) Vernon v. Keys, 12 East, 637 ; Fellows v. Lord Gwydyr. 1 Sim. 63; Slim » Croucher, 1 D. F. & J. 518. (c) Ex parte Briggs, L. R. 1. Eq. 483. And see Smith’s case, L, R.2 Chan. 604; Bartlett v. Salmon, 6 D. M. & G. 33; Farebrother v. Gibson, 1 D. & J. 602. (a) Story, s. 203 a; Vigers v. Pike, 8 Cl. & Fin. 545, 630; Galloway v. Holmes, 2 Dougl. 330. (e) Story, s. 203 d; Walsham v. Stainton, 1 D. J. & S. 678; 9 Jur. N. &. 1261; 1H. & M. 322, 8 L. T. N.S. 633. And see Ritchie v. Couper, 28 Beav. 344; Beck v. Kantorowicz, 3 K. & J. 230; Maxwell v. Port Tenant Patent Fuel Co., 4 Beay. 495; Tyrell ». Bank of London, 10 H. L. 26; Attwood v. Merewether, 37 L. J. Ch. 35. ACTUAL FRAUD. 61 give a higher price than he would otherwise have done, are guilty of such a fraud as will induce a court of equity to set the contract aside(a). 149. Another class of cases for reliefin equity is, where there isan undue concealment, or suppressio vert, tothe injury or preju- dice of another(b). It is not every concealment, even of material facts, which will entitle a party to the interposition of a court of equity. The case must amount to the suppresion of facts, which one party, under the circumstances, is bound in conscience and duty to disclose to the other party, and in respect to which he cannot innocently be silent(c). 150. The true definition of undue concealment, which amounts to a fraud in the sense of a court of equity, and for which it will grant relief, is the non-disclosure of those facts and circumstances, which one party is under some legal or equitable obligation to communicate to the other ; and which the latter has a right not merely in foro conscientia, but juris et de jure to know(d). 151. The principle which treats non-disclosure as equivalent to fraud, when the circumstances impose a duty that disclosure should be made, obtains specially in respect to policies of (a) Story, s. 203a; Maturinv. Tredinnick, 9 L. T. N. 8. 82; Driscoll». Bromley, 1 Jur. 238; Gillett v. Peppercorne, 3 Beav. 78; Barker v. Harrison, 2 Coll. 546; Bent- ley. v Craven, 18 Beav,75 ; Hobday v. Peters, 28 Beav, 349 ; Lindsay Petroleum Oil Co. v. Hurd, 16 Gr. 147. : (b) Jarvis v. Duke, 1 Vern. 19; Evans v. Bicknell, 6 Ves. 173, 182 ; Central Rail. Co, of Venemela v. Kisch, 3D. J. & S. 122: L. R.2 H. L. 99; Oakes v. Turquand, L. RB. 2 Chan. 326. And see Broderick v. Broderick, 1 P. W. 239; Fricht v. Sheck 10 Gr. 254. (c) Story, s. 204; Horsfall ». Thomas, 1H. & C. 100; Archbold v. Lord Howth, L. R. Ir. 2 C. L. 629. Andsee Groves. Perkins, 6 Sim. 576 ; Clarke v. Tipping, 9 Beav. 284 ; Stikeman v, Dawson, 1D. & Sm. 90; Shackleton v. Sutcliffe, 1 D. & Sm. 609 ; Roddy v. Williams, 3 J. & L. 21; Abbott v. Sworder, 4 D. & Sm. 448; Pulsford v. Richards, 17 Beav. 87 ; Maclure v. Ripley, 2 Mac. & G. 274; Blake v. Mowatt, 21 Beav. 603; Haywood v. Cope, 25 Beav. 140; Evans v. Carrington, 1 J. & H. 598 ; 2D. F. & J. 481; New Brunswick &c. Rail Co. v. Muggeridge, 1 Dr. & Sm. 363 ; Greenfield 4. Hdwartk, 2D. J. &S. 582; Hallowsv. Fernie, L. R. 3 Eq. 536; Kent v, Freehold Land & Brick Making Co. i, R. 4 Bq. 598. (d) Story, 8. 207 ; Fox v. Mackreth, 2 Bro. C. C. 420; Turner ». Harvey, Jac. 178 ; Dolman v. Nélces, 22, Beav. 402,407. But see Haywood v. Cope, 25 Beav. 140 ; Bartlett », Salmon, 6 D. M. & G. 33; Drummond v. Tracey, 6 Jur. N. 8. 369; Slim Croucher, 6 Jur. N.S. 190. 62 EQUITY JURISPRUDENCE. insurance. In such cases the insurer necessarily reposes a trust and confidence in the insured, as to all facts and circum- stances affecting the risk, which are peculiarly within his knowledge, and which are not ofa public and general nature, or which the underwriter either knows, or is bound to know. Indeed, most of the facts and circumstances which may affect the risk, are generally within the knowledge of the insured only; and therefore, the underwriter may be said emphatically to place trust and confidence in him as to all such matters. And hence the general principle is, that in all cases of insur- ance the insured is bound to communicate to the underwriter all facts and circumstances, material to the risk, within his knowledge; and if they are withheld, whether the conceal- ment be by design or by accident, it is equally fatal to the contract(a). 152. It was formerly considered that policies of assurance upon lives, like policies of insurance on ships, were made con- ditionally upon the truth or completeness of the representa- tions respecting the risk, and that misrepresentation or con- cealment of a material fact, although not fraudulent, vitiated the policy. But it is now determined that such is not the case. The assured is always bound not only to make a true answer to the questions put to him, but to disclose spontaneously any fact exclusively within his knowledge, which it is material for the insurer to know. But it is not an implied condition of the validity of the policy that the insured should make a complete and true representation respecting the life proposed for insur- ance. Such condition, if intended, must be made a matter for express stipulation. It is however, an implied condition, that the person whose life is assured, is alive at the time of making the policy(b). If there is a proviso that the policy shall not be disputed on the ground of merely untrue state- 9 (a) Carter v. Boehm, 3 Burr. 1905 ; Bates v. Hewitt, L. R.2Q. B. 595, 605, 606, 610; Lindenau v. Desborough, 8 B. & C. 586, 592; Jones v. Provincial Insurance Co. 3C. B.N. 8. 86; McQuaig v. Unity Fire Insurance Association, 9 U. C. C. P. 85. (b) Pritchard v. Merchant’s Life Assurance Co. 3 C. B. N. S. 622; Wheelton 2 Hardisty, 8E. & B. 232. ACTUAL FRAUD. 63 ment, not fraudulently made, a mis-representation or conceal- ment undesignedly made, does not avoid the policy(a). 153. Policies of insurance against fire are made upon the implied condition that the description of the property inserted in the policy is true at the time of making the policy(b); and there is an implied condition that the property shall not be altered during the term for which it is insured so as to in- crease the risk(c). In effecting an insurance against fire, it is the duty of the party proposing the insurance to communi- cate to the insurer all material facts within his knowledge touching the property(d). 154. The strict rule with respect to non-disclosure, which obtains in the case of policies of insurance does not extend to contracts of suretyship or guarantee. If the creditor be specially communicated with on the subject, he is bound to make a full, fair and honest disclosure of every circumstance within his knowledge, calculated in any way to influence(e) the discretion of the surety on entering into the required obligation(/). But he is not under any duty to disclose to the intended surety voluntarily and without being asked to do so, any circumstances unconnected with the, par- ticular transaction in which he is about to engage, which will render his position more hazardous, or to inform him of ° any matter affecting the general credit of the debtor, or to (a) Fowkes v. Manchester & London Life Assurance Co. 3 B. & 8. 917. See Wood. v. Dwarris, 11 Ex. 493; Reis v. Scottish Equitable Life Assurance Co. 2H. & N. 19, (b) Sillem v. Thornton, 3 E. & B. 868. (c) Stokes v. Cox, 1 H. & N. 533; Merrick v. Provincial Insurance Co., 14 U. C. Q. B. 439. : < (a) Lindenau v. Desborough, 8 B. & C. 592 ; Bufe v. Turner, 6 Taunt. 338 ; Shaw v. St. Lawrence County Mutual Insurance Co., 11 U. C. Q. B. 73. But see Laidlaw vy, Liverpool and London Insurance Co., 13 Grant, 377; Dickson v., Equitable Fire- Assurance Co., 18 U. C. Q. B. 246; Rice v. Provincial Insurance Co., 7 U. C. C. P. 548; McDonell v. Beacon Fire & Life Assurance Co.,7U.C. C. P. 308. (e) Owen v. Homan, 3 Mac. & G. 378; Blist v. Brown, 8 Jur. N. 8. 602. See Smith v. Bank of Scotland, 1 Dow, 272. . (f) North British Insurance Co. v. Lloyd, 10 Ex. 523; Wythes v. Labouchere, 3- D. & J. 609; Lee v. Jones, 17 C. B. N. S. 482. See Greenfield v. Edwards, 2 D.. J. & S. 582, 64 EQUITY JURISPRUDENCE. call his attention to the transaction, unless there be something in it which might not naturally be expected to take place between the parties(q). 155. But if there be anything in the transaction that might not naturally be expected to take place between the parties concerned in it, the knowledge of which it is reasonable to infer would have prevented the surety: from entering into the transaction, the creditor is under an obligation to make the disclosure(b). If, for instance, there be any private arrange- ment or secret understanding between the creditor and the debtor connected with the particular transaction, in which he is about to engage, whereby the risk of the surety is increased (c) or his position is so materially varied, that he is not in the position in which he might reasonably have contemplated to be(d); or if a party knowing or suspecting himself to be cheated by his clerk, and, concealing the fact, applies for security in such a manner, and under such circumstances, as holds the clerk out to others as one whom he considers as a trustworthy person(e); or if the creditor has notice that the circumstances under which the debtor has obtained the con- currence of the surety lead to the suspicion of fraud(/), con- cealment is fraudulent and will vitiate the transaction(g). 156. The same principlé applies in all cases where the party is under an obligation to make a disclosure, and conceals ma- terial facts. Therefore, if a release is obtained from a party in ignorance of material facts, which it is the duty of the other (a) Hamilton v. Watson, 12 Cl. & Fin. 109 ; Small v. Currie, 2 Drew. 102; Wythes v. Labouchere, 3 D. & J. 593, 609. And see Cunningham & Buchanan, 10 Gr. 521. . (6) Lee ». Jones, 17 C. B. N.S. 503; Burke v. Rogerson, 12 Jur. N.S. 635. See Squire v. Whitton, 1 H. L. 333 ; Greenfield v. Edwards, 2D. J. & S. 582; Rhodes v. Bate, L. R. 1 Chan. 252; Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259. (c) Pidcock v. Bishop, 3 B. & C. 605. (d) Evans v. Brembridge, 2 K. & J. 174; 8D. M. & G. 100; Spaight ». Cowne, 14H. & M. 359. (e) Smith v. Bank of Scotland, 1 Dow, 272. (f) Squire v. Whitton, 1H. L. 333. (9) Owen v. Homan, 4 H. L. 997; Lee v. Jones, 17 C.B. N.S. 503; Rhodes v. an L. KR, 1 Chan. 252, And see Guardians of Stokesly Union v. Strother, 22 . T. 84, ACTUAL FRAUD. 65 side to disclose, the release will be held invalid(a). So, in cases of family agreements and compromises, if there is any concealment of material facts, the compromise will be held invalid, upon the ground of mutual trust and confidence re- posed between the parties(b). And in like manner, ifa devisee, by concealing from the heir the fact that the will has not been duly executed, procures from the latter a release of his title, pretending that it will facilitate the raising of money to pay the testator’s debts, the release will be void on account of the fraudulent concealment(c). 157. But by “far the most comprehensive class of cases of undue concealment arises from some peculiar relation, or fidu- ciary character between the parties. Among this class of cases are to be found those which arise from the relation of client and attorney, principal and agent, principal and surety, landlord and tenant, parent and child, guardian and ward, ancestor and heir, husband and wife, trustee and cestui que trusts executors or administrators and creditors, legatees or distribu- tees, appointer and appointee under powers, and partners and part owners. In these, and the like cases, the law, in order to prevent undue advantage, from the unlimited confidence, affection, or sense of duty, which the relation naturally creates, requires the utmost degree of good faith (wberrima fides) in all transactions between the parties. If there is any misrepresen- tation, or any concealment of a material fact, or any just sus- Ppicion of artifice or undue influence, courts of equity will interpose, and pronounce the transaction void, and, as far as possible, restore the parties to their original rights(d). (a) Bowles v. Stewart, 1S. & L. 209, 224; Broderick v. Broderick, 1 P. W. 240. See Roddy v. Williams, 3 J. & L. 1. (6) Gordon v, Gordon, 3Swanst. 399, 463, 467, 470, 473, 476, 477; Leonard v. Leo- nard, 2 B. & B. 171, 180, 181, 182. (c) Story, s. 217; Broderick v. Broderick, 1 P. W. 239. (d) Story s. 218. See Ormand v. Hutchinson, 13 Ves. 51 ; Beaumont v. Boultbee, 5 Ves. 485 ; Gartside v. Isherwood, 1 Bro. C. C. 558 ; Bulkley v. Wilford, 2 Cl. & Fin. 102, 177; Dalbiac v. Dalbiac, 16 Ves. 116 ; Clarke v. Hawke, 11 Gr. 527 ; Mason ». Seney, 12 Gr. 143 ; Fallon v: Keenan, 12 Gr. 388; Donaldson v. Donaldson, 12 Gr. 431 ; Elgie v, Campbell, 12 Gr. 132. And see Vallier v. Lee, 2Gr. 606; Denison v. Denison, 13 Gr. 114, 596; Corrigan v. Corrigan, 15 Gr. 341; Ex parte Williams, L. R. 2 Eq, 216. 66 EQUITY JURISPRUDENCE. 158. Having taken this general notice of cases of fraud, arising from the misrepresentation or concealment of material facts, some others, which, ina moral as well asin a legal view, seem to fall under the same predicament, being deemed cases of actual, intentional fraud, as contradistinguished from con- structive or legal fraud, may be considered. In this class may properly be included all cases of unconscientious advantages in bargains, obtained by imposition, circumventions, surprise, and undue influence, over persons in general; and in an espe- cial manner, all unconscientious advantages, or bargains ob- tained over persons disabled by weakness, infirmity, age, lunacy, idiocy, drunkenness, coverture, or other incapacity, from taking due care of, or protecting their own rights and interests(a). 159. The general theory of the law, in regard to acts done and contracts made by parties, affecting their rights and inter- ests is, that in all such cases there must bea free and full consent to bind the parties. 160. It is upon this general ground, that there is a want of rational and deliberate consent, that the contracts and other acts of idiots, lunatics, and other persons, zon compotes mentis, are generally deemed to be invalid in courts of equity(b). Such persons being incapable in point of capacity to enter into any valid contract, or to do any valid act, every person dealing with them, knowing their incapacity, is deemed to perpetrate a meditated fraud upon them and their rights. Even courts of law now lend an indulgent ear to cases of defence against contracts of this nature, and, if the fraud is made out, will declare them invalid(c). ¢ 161. But courts of equity deal with the subject upon the most enlightened principles, and watch with the most jealous care (a) Story s. 221, And see Gartside v. Isherwood, 1 Bro. C. ©. 558; Skidmore ». Bradford, L. R. 8 Eq. 134. (6) See Waring ». Waring, 12 Jur. 947; 6 Moore, P. C. 341. See also Creagh v. Blood, 2 J. & L. 509. (c) Story ss, 223, 227; Yates v. Boen, 2 Str. 1104; Baxter v. Earl of Portsmouth, 5B. & C. 170; Faulder v. Silk, 3 Camp. 126; Brown v. Joddrell, 1 Mood. & Malk, 105; Levy v, Baker, 1 Mood. & Malk, 106, and note (0). ACTUAL FRAUD. 67 every attempt to deal with persons non compotes mentis. Wherever, from the nature of the transaction, there is not evidence of entire good faith (uberrime fidei), or the contract or other act is not seen to be just in itself, or for the benefit of these persons, courts of equity will set it aside, or make it subservient to their just rights and interests(a). Where, in- deed, a contract is entered into with good faith, and is for the benefit of such persons, such as for necessaries, there courts of equity will uphold it, as well as courts of law(b). And, if a purchase is made in good faith, without any knowledge of the incapacity, and no advantage has been taken of the party, courts of equity will not interfere to set aside the contract, if injustice will thereby be done to the other side, and the parties cannot be placed in statu quo, or in the state in which they were before the purchase(c). But this rule is not applicable to a case where the question is, whether the deed of a lunatic altering the provisions of a settlement is valid(d). 162. Lord Coke has enumerated four different classes of persons who are deemed in law to be non compotes mentis. The first is an idiot, or fool natural; the second is he who was of good and sound memory, and by the visitation of God has lost it; the third is a lunatic, lunaticus qui gaudet lucidis in- tervallis, and sometimes is of a good and sound memory, and sometimes non compos mentis ; and the fourth is a non compos mentis by his own act, as a drunkard/(e). In respect to the last class of persons, although it is regularly true, that drunken- ness doth not extenuate any act or offence committed by any person against the laws; but it rather aggravates it, and he (a) See Selby v. Jackson, 13 L. J. N. 8. Ch. 249; Young ». Young, 10 Gr. 365. (8) Baxter v. Earl of Portsmouth, 5 B. & Cr. 170. See also Ex parte Hall, 7 Ves. 264 ; Nelson v. Duncombe, 9 Beav. 211 ; Stedman v, Hart, Kay, 607. (c) Story, ». 228; Neill v. Morley, 9 Ves. 478, 482; Sergeson v. Sealey, 2 Atk. 412; Price v. Berrington, 3 Mac. & G. 486; Williams v. Wentworth, 5 Beav. 325 ; Campbell v. Hooper, 3 Sm. & G. 153; Jacob v. Richards, 18 Beay. 300; 5 D. M. & G. 55; Re McSherry, 10 Gr. 390. See Molton .v, Camroux, 2 Ex. 487; 4 Ex. 17. (d) aan v. Ince, 7 D. M. & G. 475. And see Manning v. Gill, L. R. 13 Eq. 485. (e) Beverley’s case, 4 Co. 124 ; Co, Litt. 247 a. 68 EQUITY JURISPRUDENCE. shall gain no privilege thereby(a); and although, in strict- ness of law, the drunkard has less ground to avoid his own acts and contracts than any other non compos mentis(b) ; yet courts of equity will relieve against acts done, and contracts made by him, while under this temporary insanity, where they are procured by the fraud or imposition of the other party(c)., For whatever may be the demerit of the drunkard himself, the other party has not the slightest ground to claim the protection of courts of equity against his own grossly im- moral and fraudulent conduct(d). 163. To set aside any act or contract on account of drunk- enness, it is not sufficient, that the party is under undue excite- ment from liquor(e). It must rise to that degree which may be called excessive drunkenness, where the party is utterly deprived of the use of his reason and understanding(/). If there be not that degree of excessive drunkenness, equity will not interfere, unless there has been some contrivance or management to draw the party into drink, or some unfair advantage taken of his intoxication, to obtain an unreasonable bargain or benefit from him(g). 164. Closely allied to the foregoing are cases where a per- son, although not positively non compos, or insane, is yet of such great- weakness of mind as to be unable to guard himself against imposition, or to resist importunity or undue influence. And it is quite immaterial from what cause such weakness (a) 4 Black. Comm. 25 ; 3 Bac. Abridg. Idiots and Lunatics, A. (b) 3 Bac. Abridg. Idiots and Lunatics, A. (c) Johnson v. Medlicott, cited 3 P. W. 130, note (A). (a) See Cook v, Clayworth, 18 Ves. 12; Cole » Robins, Bull. N. P. 172; Gore v. Gibson, 13 M. & W. 623. : (e) See Crippen v. Ogilvy, 15 Gr. 490; in app. 18 Gr. 253; Corrigan v. Corrigan, 15 Gr. 341. (f) Cook v. Clayworth, 18 Ves. 12. (9) Story, s. 231; Cook v Clayworth, 18 Ves. 12; Say v. Barwick, 1 V. & B. 195; Butler v. Mulvihill, 1 Bli. 137 ; Lightfoot, v. Heron, 3 Y. & C. 586; Nagle v. Baylor, 3 Dr. & War. 60; Shaw v. Thackeray, 1 Sm. & G. 539; Wiltshire ». Mar- shall, 14 W. R. 602; Addis ». Campbell, 4 Beav. 401; Martin v. Pycroft, 2D. M. & G. 800. And see Clarkson v, Kitson, 4 Gr. 244; McGregor v. Boulton, 12 Gr. 288 ; Nevills v. Nevills, 6 Gr. 121; Edinburgh Life Assce, Co. v, Allen, 18 Gr. 425, ACTUAL FRAUD. 69 arises; whether it arises from temporary illness, general mental imbecility, the natural incapacity of early infancy, the infirmity of extreme old age, or those accidental depressions which result from sudden fear, or constitutional despondency, or overwhelming calamities(a). 165. It may be laid down as generally true, that the acts and contracts of persons who are of weak understanding, and who are thereby liable to imposition, will be held void in courts of equity, if the nature of the act or contract justify the conclu- sion that the party has not exercised a deliberate judgment, but that he has been imposed upon, circumvented, or overcome by cunning or artifice, or undue influence. But the simple fact that the intellectual capacity of one party to a contract is below that of the average of mankind, does not alone furnish sufficient ground for setting aside the contract(b). The rule of the common law seems to have gone further in cases of wills (for, it is said, that, perhaps it can hardly be extended to deeds without circumstances of fraud or imposition) ; since the com- mon law requires that a person, to dispose of his property by will, should be of sound and disposing memory, which im- ports that the testator should have understanding to dispose of his estate with judgment and discretion ; and this is to be col- lected from his words, actions and behaviour at the time, and not merely from his being able to give a plain answer toa common question(c). 166. Where any fiduciary relation has once subsisted between the parties, the law will always impose the burden upon the purchaser of an estate, of showing that all due protection had been afforded to the vendor, but not otherwise(d). (a) Story, s. 234; Osmond v. Fitzroy, 3,P. W. 129 ; Willis ». Jernegan, 2 Atk. 251; McLaurin v. McDonald, 12 Gr. 82; Edinburgh Life"Assce. Co. v. Allen, 18 Gr. 425. And see Livingstone v. Acre, 15 Gr. 610. (b) See Blachford v. Christian, 1 Knapp, 73 ; Ball v. Mannin, 3 Bli. N R.1. (c) Story, s. 238 ; Donegal’s case, 2 Ves. Sen. 407 ; Att.-Gen. v. Parnther, 3 Bro. C. C. 441, And see Martin v. Martin, 12 Gr. 500; Swinfen v. Swinfen, 27 Beav. 159 ; Ross v. Chester, 1 Hagg. 227; Constable v. Tuffnell, 4 Hagg. 489. And see Re Field, 3 Curt. 752 ; Wilson v. Bedard, 12 Sim. 28. (d) Harrison v. Guest, 6D. M. & G. 424. See alsv Denton v. Donner, 23 Beav, 291 ; Longmate v. Ledger, 2 Giff. 163. 70 EQUITY JURISPRUDENCE. 167. Analogous cases may be put, where the party is sub- , jected to undue influence, although in other respects of com- petent understanding(a). As, where he does not act, or makes a contract when under duress, or the influence of extreme terror, or of threats, or of apprehensions short of duress. For, in cases of this sort, he has no free will, but stands in vinculis.. And the constant rule in equity'is, that where a party is not a free agent, and is not equal to protecting himself, the court will protect him(d). On this account equity watches with extreme jealousy all contracts made by a party while under imprisonment ; and, if there is the slightest ground to suspect oppression or imposition, they will set the contract aside(c). Circumstances, also, of extreme necessity and distress of the party, although not accompanied by direct restraint or duress, may, in like manner, so entirely overcome his free agency as to justify the court in setting aside a contract which he has made on account of some oppression, or fraudulent advantage, or imposition, attendant upon it(d). . 168. The acts and contracts of infants, that is, of all persons under twenty-one years of age, are @ fortiori treated as falling within the like predicament. There are, indeed, certain ex- cepted cases, in which infants are permitted by law to bind themselves by their actsand contracts. But these are all of a special nature ; as, for instance, infants may bind themselves (a) See Debenham »v. Ox, 1 Ves. Sen. 276 ; Cory v. Cory, 1 Ves. Sen. 19; Young z. Peachy, 2 Atk. 254. See also Price v. Price,1 D. M. & G. 308; Wilkinson v, Fawkes, 9 Ha. 592, (0) Evans v. Llewellyn, 1 Cox, 340; Crowe » Ballard, 1 Ves. 215, 220 ; Hawes». Wyatt, 3 Bro. C. C. 158 ; 3 P. W. 294; note (e); Att.-Gen. ». Sothon, 2 Vern. 497. (c) Roy v. Duke of Beaufort, 2 Atk. 190; Nichols v. Nichols, 1 Atk. 409 ; Hinton v, Hinton, 2 Ves. Sen. 634, 635; Falkner v. O’Brien, 2 B. & B. 214; Griffith v. Spratley, 1 Cox, 383; Underhill v. Horwood, 10 Ves. 219; Att.-Gen. v», Sothon, 2 Vern. 497 ; Wil- kinson v. Stafford, 1 Ves. 32 ; Knight». Marjoribanks, 11 Beav. 322 3 2 Mac. & G. 10; Scott v. Scott, 11 Ir, Eq. 74. (d) Story, s. 239. See Gould v. Okeden, 4 Bro. P. C. 198 ; Bosanguet v. Dashwood, Cas. t. Talbot, 37; Proof v. Hines, Cas. t. Talb. 111; Hawes », Wyatt, 3 Bro. C. ©. 156 ; Pichett v. Loggon, 14 Ves. 215; Beasley v. Magrath, 28. & L.'31; Farmer v. Farmer, 1H. L. 724 ; Wood v. Abrey, 3Mad. 417; Ramsbottom v. Parker, 6 Mad. 6 ; Fitzgerald v. Rainsford, 1 B. & B. 37, note (d) ; Huguenin 2. Basely, 14 Ves. 273. And see Nottidge v. Prince, 2 Giff. 246, 6 Jur. N. S. 1066. An agreement executed under threat of prosécuting the plaintiff’s son for forgery, was set aside, Bayley v. Wil- liams, 4 Giff. 638. ACTUAL FRAUD. 71 by a contract for necessaries, suitable to their degree and quality(a) ; or by a contract of hiring and services for wages (6); or by some act which the law requires them to do(c). 169. Some acts of infants are voidable and some are void; and the same is true as to their contracts. Where they are utterly void, they are from the beginning mere nullities, and incapable of any operation. But where they are voidable, the infant may, when he arrives at full age, elect to avoid them or not. In this respect, he is by law differently placed from idiots and lunatics ; for the latter, may not, at least at law, be allowed to stultify themselves. But an infant at his coming of age, may avoid or confirm any voidable act or contract at his pleasure. In general, where a contract may be for the benefit or to the prejudice of an infant, he may avoid it as well at law as in equity, where it can never be for his benefit, it is utterly void(d). 170. But if an infant, by a false and fraudulent representa- tion that he is of full age, inducesa man to enter into a con- __ tract with him, he is bound in equity(e). 171. Generally speaking, at law, femes covert have no capa- city to do any acts, or to enter into any contracts; and such acts and contracts are treated as mere nullities. And in this respect equity generally follows the law. Courts of equity indeed, broke in upon this doctrine, and in many respects treated the wife as capable of disposing of her own separate property, and of doing other acts, as if she were a feme sole, In cases of this sort, the same principles applied to the acts and contracts of a feme covert, as would apply to her as a feme sole, (a) Zouch v. Parsons, 3 Burr, 1801, Co, Litt. 172 a. (6) Wood v, Fenwick, 10 M. & W. 195. And see Regina v. Lord, 12 Q. B. 757. (e) Delesdernier v. Burton, 12 Gr. 569, (d) Story, s. 241; Zouch v. Parsons, 3 Burr._1801, 1807. And see Miller v. Ostrander, 12 Gr. 349. (e) Cory v. Gertchen, 2 Mad. 40; Wright v. Snowe, 2D. & Sm. 321; Ex parte Unity Bank, 3D. &J. 63; Hannah v. Hodgson, 30 Beay. 23 ; Compare Ex parte Taylor, 8 D. M. &G. 254; Nelson v. Stocker, 4D. & J.458. And see Bartlett v. Wells, 1 B. & 8. 836. 72 EQUITY JURISPRUDENCE. unless the circumstances gave rise to the presumption of fraud, imposition, unconscionable advantage, or undue in fluence(a). 172. The property of a married woman is not by the Act relating to the separate property of married women(b), made her separate property in the sense in which property settled to her own use with the right to dispose of it, is treated in equity, and therefore it has been held that her contracts do not bind it(c). The general scope and tenor of that Act is to protect and free from liability the property of married women, not to subject it to past liabilities, except in the case of her torts, and of her debts and contracts before marriage. The Act gives to what has been called the ordinary equitable estate of a feme covertcertain qualities for its beiter protection, which it did not possess before, such qualities being incident to a separate estate, and sufficient probably, if found in a private instrument, to constitute a separate estate ; but certain quali- ties incident to a separate estate are withheld, and among them that quality upon which all the decisions making separate property liable for the married woman’s contracts is founded, namely, the jus disponendi(d). 178. By recent legislation married women may insure their own, or their husband’s lives(e), may become stockholders or members of any bank, insurance company, or other incorpo- rated company, as fully and effectually, as if femes sole, may make deposits in any bank and draw cheques thereon. They may also carry on any occupation or trade separately from their husbands, and for their own benefit ; and they may sue and be sued separately from their husbands. A married (a) Story, s. 243 ; Dalbiac v. Dalbiac, 16 Ves. 116. See Comyns, Dig. Baron and Feme, D.1, E.1 to 3, H. N. O. P. Q. ; id. Chancery, 2M. 1 to 16. (b) Con. Stat. U. C. c. 73. (c) Chamberlain v. McDonald, 14 Gr. 447. (d) Royal Canadian Bank v. Mitchell, 14 Gr. 419, 421; Emrick v. Sullivan, 25 U. C. Q. B. 105, But see Lett v. The Commercial Bank. 24 U. C. Q. B. 555, and the lan- guage of V. C. Mowat, in Chamberlain », McDonald, 14 Gr. 449. (e) O. S. 35 Vic. v. 16. ACTUAL FRAUD. 73 woman is also made liable on any contract made by her res- pecting her real estate, as if she were a feme sole(a). 174. Of a kindred nature to the cases already considered, are cases of bargains of such an unconscionable nature, and of such gross inequality, as naturally lead to the presumption of fraud, imposition, or undue influence. This is the sort of fraud alluded to by Lord Hardwicke when he said, that they were such bargains that no man in his senses and not under delusion would make, on the one hand, and as no honest and fair man would accept, on the other, being inequitable and unconscientious bargains(b). Mere inadequacy of price, or any other inequality in the bargain, is not, however, to be understood as constituting, per se, a ground to avoid a bargain in equity(c). For courts of equity, as well as courts of law, act upon the ground that every person who is not, from his peculiar condition or circumstances, under disability, is enti- tled to dispose of his property in such manner and upon such terms as he chooses; and whether his bargains are wise and discreet, or profitable or unprofitable, or otherwise, are con- siderations, not for courts of justice, but for the party himself to deliberate upon(d). 175. There may, however, be such an unconscionableness or inadequacy in a bargain, as to demonstrate some gross im- position or some undue influence; and in such cases courts of equity ought to interfere, upon the satisfactory ground of fraud(e). But then such unconscionableness or such inade- (a) The first section of this Act applies to women married since the passing of the Act; Dingman v. Austin, 33 U. C. Q. B. 190. But see Merrick v. Sherwood, 22 U. C. C. P. 467, {b) Chesterfield v. Jansen, 2 Ves. Sen. 155; Harvey v. Mount, 8 Beav. 439; Crip- pen v. Ogilvy, 15 Gr. 490. (c) Griffith v. Spratley, 1 Cox, 383; Copis v. Middleton, 2! Mad. 409; Collier v. Brown, 1 Cox, 428; Low v. Barchard, 8 Ves. 133 ; Western v. Russel, 3 V. & B. 187 ; Naylor v, Winch, 1S. & S. 565; Borell v. Dann, 2 Ha. 440, 450; Callaghan v. Callar ghan, 8 Cl. & Fin. 401; Bower v. Cooper, 2 Ha. 408; Abbott v. Sworder, 4D. & Sm. 456; Falcke v. Gray, 4 Drew- 651. (d) Story, s. 244; Harrison v. Guest, 8 H. L, 481. (e) Gwynne v. Heaton, 1 Bro. C. C. 9; Gartside v. Isherwood, 1 Bro. C. C. 558, 560 ; Evans v, Llewellin, 1 Cox, 333. 74 EQUITY JURISPRUDENCE. quacy should be made out as would (to use an expressive phrase) shock the conscience, and amount in itself to conclus- ive and decisive evidence of fraud(a). And where there are other ingredients in the ease, of a suspicious nature, or peculiar relations between the parties, gross inadequacy of price must necessarily furnish the most vehement presumption of fraud(b). 176. But courts of equity will not relieve in all cases, even of very gross inadequacy, attended with circumstances which might otherwise induce them to act, if the parties cannot be placed in statu quo; as, for instance, in cases of marriage set- tlements, for the court cannot unmarry the parties(c). 177. Cases of surprise, and sudden action without due delibe- ration, may properly be referred to the same head of fraud or imposition(d), An undue advantage is taken of the party un- der circumstances which mislead, confuse, or disturb the just result of his judgment, and thus expose him to be the victim of the artful, the importunate, and the cunning. The surprise here intended must be accompanied with fraud and circum- vention, or at least by such circumstances as demonstrate that the party had no opportunity to use suitable deliberation, or that there was some influence or management to mislead him. If proper time is not allowed to the party and he acts improvidently, if he is importunately pressed, if those in whom he places confidence make use of strong persuasions, if he is not fully aware of the consequences, but is suddenly drawn in to act, if heis not permitted to consult disinterested friends or counsel before he is called upon to act, in circumstances of sudden emergency, or unexpected right or acquisition ; in these and many like cases, if there has been great inequality (a) Coles v. Trecothick, 9 Ves. 246 ; Underhill v, Harwood, 10 Ves. 219; Morse ». Royal, 12 Ves. 373 ; Copis v. Middleton, 2 Mad. 409; Stillwell v. Wilkinson, Jac, 280; Peacock v. Evans, 16 Ves. 512; Wood v. Abrey, 3 Mad..417; Blakeney v. Baggott, 1. Dow & Cl. 405; Rice v. Gordon, 11 Beav. 265; Cockell v. Taylor, 15 Beav. 103, 115; Falcke v. Gray, 4 Drew. 651; Summers »v. Griffiths, 35 Beav. 27 ; Butler v. Miller, Ir. L. R. 1 Eq. 40. (b) Story, s. 246; How. Weldon, 2 Ves. Sen. 516; Com. Dig. Chancery, 3 M. 1; Huguenin v. Baseley, 14 Ves. 273. (c) Story s. 250; North v, Ansell, 2 P. W. 619. (d) How v. Weldon, 2 Ves. Sen. 516. ACTUAL FRAUD. 75 in the bargain, courts of equity will assist the party upon the ground of fraud, imposition, or unconscionable advantage(a). 178. Among other cases illustrative of what is denominated actual or positive fraud, are the fraudulent suppression or des- truction of deeds and other instruments, in violation of, or injury to, the rights of others(b); fraudulent awards, with an intention to do injustice (c) ; fraudulent and illusory appoint- ments and revocations, under powers; fraudulent prevention of acts to be done for the benefit of others, under false state- ments or false promises(d) ; frauds in relation to trusts of a secret or special nature(e); frauds in verdicts, judgments, decrees, and other judicial proceedings(/ ) ; frauds in the con- fusion of boundaries of estates and matters of partition and dower; frauds in the administration of charities; and frauds. upon creditors, and other persons, standing upon a like equity (9): 179. In the first place, as to the suppression and destruction of deeds and wills, and other instruments. If an heir should suppress them, in order to prevent another party, as a grantee or devisee, from obtaining the estate vested in him thereby, courts of equity, upon due proof by other evidence, would grant relief, and perpetuate the possession and enjoyment of the estate in such grantee or devisee(h). For cases for relief (a) Story s. 251; Evans v. Llewellyn, 1 Cox, 339 ; 2 Bro. ©. C. 150 ; Irnham »v. Child, 1 Bro. C. ©. 92; Townshendjv. Stangroom, 6 Ves. 338 ; Pickett v. Loggon, 14 Ves. 215. (b) Bowlesv. Stewart,1S. & L. 222, 225; Dormer v. Fortesque, 3 Atk. 124; Eyton v, Eyton, 2 Vern. 380; Dalston v. Coatsworth, 1 P. W. 733. (c) Brown v. Brown, 1 Vern. 157, and note (1), 159 ; Com. Dig. Chancery, 2 K. 6 ; Champion v. Wenham, Ambl. 245. (d2) Luttrell v. Lord Waltham, cited 14 Ves. 290; Jones v. Martin, 6 Bro. P. U. 487; 5 Ves. 266 ; note, 2 Chance on Powers, ch. 23, art. 3015 to 3025. (e) Dalbaic v. Dalbaic, 16 Ves. 124. (f) Com. Dig. Chancery, 3 M.1, 3 N. 1,3 W. ; Davenport v. Stafford, 8 Beav. 503 ; Langley v. Fisher, 9 Beav. 90. (g) Story, s. 252 ;1 Fonbl. Eq. B. 1 ch. 4,ss, 12, 13, 14, and notes ; Com. Dig. Chan- cery, 3 M. 4; Jones v. Martin, 6 Bro. P. C. 487; 5 Ves. 266, note. And see Patch v, Ward, L. R. 3 Chan. 203. (hk) Hunt v. Matthews, 1 Vern. 408; Wardour v. Berisford, 1 Vern. 452; 2 P. W. 748, 749; Dalston ». Coatsworth, 1 P. W. 731; Finch », Newnham, 2 Vern. 216; Hempden ». Hampden, 3 Bro. P. C. 551; Barnsley @ Powell, 1 Ves. Sen. 119, 284, 289 ; Tucker v, Phipps, 3 Atk. 360 ; Herat. Matcham, 16 Sim. 325. 76 EQUITY JURISPRUDENCE. against spoliation come in a favourable light before courts of equity, in odium spoliatoris ; and where the contents of a sup- pressed or destroyed instrument are proved, the party will re- ceive the same benefit as if the instrument were produced(a). 180. In the next place, frauds in regard to powers of appoint- ment. A person, having a power of appointment for the benefit of others, shall not, by any contrivance, use it for his own benefit. Thus, if a parent has a power to appoint to such of his children as he may choose, he shall not, by exercising it in favour of a child in a consumption, gain the benefit of it himself, or by a secret agreement with a child, in whose favour he makes it, derive a beneficial interest from the execu- tion of it(b). The same rule applies to cases where a parent, having a power to appoint among his children, makes an illusory appointment, by giving to oné child a nominal and not a substantial share; for, in such a case, courts of equity will treat the execution as a fraud upon the power(c).. 181. In the next place, the fraudulent prevention of acts to be done for the benefit of third persons. Courts of equity hold themselves entirely competent to take from third persons, and @ fortiori, from the party himself, the benefit which he may have derived from his own fraud, imposition, or undue influence, in procuring the suppression of such acts(d). Thus, where a person had fraudulently prevented another, upon his death-bed, from suffering a recovery at law, with a view that the estate might devolve upon another person, with whom he was connected, it was adjudged, that the estate ought to be (a) Story s. 254; Saltern v. Melhuish, Ambl. 247; Cowper v. Cowper, 2 P. W. 722; Rex v. Arundel, Hob. 109; Hampden v. Hampden, cited 1 P. W. 733; 3 Bro. P. C. 550; Bowles v. Stewart, 1S. & L. 225. (6) McQueen v. Farquahar, 11 Ves. 479; Aleyn v. Belcher, 1 Ed. 138; Palmer 2. Wheeler, 2 B. & B. 18; Morris v. Clarkson, 1 J. & W.111; Rowley v. Rowley, 18 Jur. 306; Agassiz v. Squire, 1 Jur.n. 8.50; Wellesley v. Mornington, 2 K. & J. 143; Daubney v. Cockburn, 1 Mer. 626; Warmer v. Martin, 2 Sim. 502; Thompson » Simpson, 1 Dr. & War. 549; Askham v, Barker, 12 Beav. 499; Jackson v, Jackson, Dru. 91; 7 CL. & Fin. 977; Salmon v. Gibbs, 3 D. & Sm. 343. (c) Story 255; Butcher-v. Butcher, 9 Ves. 382; Campbell v. Horne, 1 Y. & C. 664; Stolworthy v. Sancroft, 10 Jur. n. s. 762; Ward v. Tyrrell, 25 Beav. 563. (@) Bridgman v. Green, 2 Ves. Sen. 627 ; Huguenin v. Baseley, 14 Ves. 289 ACTUAL FRAUD. 77 , held as if the recovery had been perfected, though even in favour of a volunteer, and against one not a party to the fraud(a). So, if a testator should communicate his intention to a devisee, of charging a legacy on his estate, and the devisee should tell him that it is unnecessary, and he will pay it, the legacy being thus prevented, the devisee will be charged with the payment(b). And, where a party procures a testator to make a new will, appointing him as executor, and agrees to hold the property in trust for the use of an in- tended legatee, he will be held a trustee for the latter, upon the like ground of fraud(c). 182. This head of positive or actual fraud, may be closed by referring to another class of frauds, of a very peculiar and distinct character. Gifts and legacies are often bestowed upon persons, upon condition that they shall not marry with- out the consent of parents, guardians, or other confidential persons. Where such consent is fraudulently withheld by the proper party, for the express purpose of defeating the gift. or legacy, or of insisting upon some private and selfish advan- tage, or from motives of a corrupt, unreasonable, or vicious nature, courts of equity will not suffer the manifest object of the condition to be defeated by the fraud or dishonest, corrupt, or unreasonable refusal of the party whose consent is required to the marriage(d). 183. In general, a contract which contemplates a fraud upon third parties is regarded as so far illegal between the immediate parties, that neither will be entitled to claim the aid of a court of equity in its enforcement(e). (a) Luttrell v. Lord Waltham, cited 14 Ves. 290; 8. c. 11 Ves. 638; 1J. & W. 96. (b) Cited in Mestaer v. Gillespie, 11 Ves. 638. See Goss v. Tracey, 1P. W. 288; 2 Vern. 700 ; Thynn v. Thynn, 1 Vern. 296; Reech v. Kennigate, Ambl. 67 ; Chamber- lain v. Agee, 2V. & B. 259; Drakeford v. Wilks, 3 Atk. 539; Blair v. Broniley; Ane 354; Podmore v. Gunning, 7 Sim. 660 ; Russell v. Jackson, 10 Ha. 213. (0) Story s. 256; Thynn v. Thynn, ‘t Vern. 296; Reech v. Kenningate, Ambl. 67 ; Bevenish v. Baraca, Prec. Ch. 3; Oldham ». Litehiord, 2 Vern. 506; Barrow »v. Greenough, 3 Ves. 152; Chamberlain ». Agar, 2 V. & B. 262; Whitton v. Russell, 1 Atk, 448. (d) Story s. 257; Peyton v. Bury, 2 P. W. 626, 628; Eastland v, Reynolds, 1 Dick. 317 ; Goldsmid v. Goldsmid, 19 Ves. 368; Strange v. Smith, Ambl. 263 ; Clarke v. Parker, 19 Ves. 1, 12; Mesgrett v- Mesgrett, 2 Vern, 580; Merry v. Ryves, 1 Ed. 1, 4. (e) But see Shaw v. Jeffery, 13 Moo, P. C. C, 432, 78 EQUITY JURISPRUDENCE. CHAPTER VII. CONSTRUCTIVE FRAUD. 184. By CONSTRUCTIVE FRAUDS are meant such acts or con- tracts, as, although not originating in any actual evil design, or contrivance to perpetrate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally repre- hensible with positive fraud, and, therefore, are prohibited by law, as within the same reason and mischief, as acts and con- tracts done malo animo(a). 185. The cases under this head may be divided into three classes: (1) Cases of constructive frauds, so called, because they are contrary to some general public policy, or to some fixed artificial policy of the law. (2) Constructive frauds which arise from some special confidential or fiduciary rela tion between all the parties, or between some of them. (8) Constructive frauds prohibited, chiefly because they uncon- scientiously compromit, or injuriously affect, the private inter- ests, rights, or duties of the parties themselves, or operate sub- stantially as a fraud upon the private rights, interests, duties, or intentions of third persons. 186. Among the cases of constructive fraud, which are so denominated on account of their being contrary to some general public policy, or fixed artificial policy of the law, are contracts and agreements respecting marriage, by which a party engages to give another a reward or compensation, if he will negotiate an advantageous marriage for him/() (a) Story, s. 258. (b) See Hall and Kean v, Potter, 3 Lev. 411; Show. P. C. 76; Grisley v. Lother, Hob. 10; Law v. Law, Cas. t. Talb. 140, 142; Vauxhall Bridge Co. v. Spencer, Jac, 67. CONSTRUCTIVE FRAUD. 79 All such marriage brokage contracts are utterly void, as against public policy(a) ; so much so that they are deemed in- capable of confirmation(b); and even money paid under them may be recovered back in equity(c). Nor does it make any difference, that the marriag'e is between persons of equal rank, and fortune, and age(d). 187. Upon the same principle, secret contracts made with a parent or guardian, whereby a compensation or security, or benefit is to be received for promoting the marriage of his child or ward, or giving consent to it, are held void(e). 188. The same principle pervades the class of cases where persons, upon a treaty of marriage, by any concealment, or misrepresentation, mislead other parties, or do acts, which are by other secret agreements reduced to mere forms, or become inoperative(f). Thus, where a brother, on the marriage of his sister, let her have a sum of money privately, that her fortune might appear to be as much as was insisted on by the other side, and the sister gave a bond to the brother to repay it, the bond was set aside(g). 189. Of a kindred nature, and governed by the same rules, (a) Arundel v. Trevillian, 1 Ch. Rep. 37 [87]; Drury v. Hooke, 1 Vern. 412; Hall v. Potter, 3 Lev. 411; Shower,P. C. 76; Colev. Gibson, 1 Ves. Sen. 507: Debenham ». Ox, 1 Ves. Sen. 276; Smith v. Aykwell; 3 Atk. 566; Hylton ». Hylton, 2 Ves. Sen. 548; Scribblehill v. Brett, 2 Vern. 445; s. c. Prec. Ch. 165 ; 4 Bro. P C. 144; Roberts v. Roberts, 3 P. W. 74, note (1); 75,76; Law v. Law, 3 P. W. 391, 394; Williamson v, Gihon, 2S. & L; 357 ; Vauxhall Bridge Co. 2. Spencer, Jac. 67. (b) Cole v. Gibson, 1 Ves. Sen. 503, 506, 507 ; Roberts v. Roberts, 3 P. W. 74, note (1) ; Roche v. O’Brien, 1B & B 358. (c) Smith v. Bruning, 2 Vern. 392; Goldsmith v. Bruning, 1 Eg. A. B. 89 F. (d) Story, ss. 260, 263 ; Williamson v. Gihon, 2S. & L. 356, 362. (e) Keat v. Allen, 2 Vern. 588 ; Roberts v. Roberts, 3 P. W. 74, and note (1) ; Peyton v. Bladwell, 1 Vern. 240; Redman v. Redman, 1 Vern. 348; Gale v. Lindo, 1 Vern. 475 ; Yole v. Gibson, 1 Ves. Sen. 503; Morrison v. Arbuthnot, 1 Bro. C. C. 547, note; 8 Bro P. C. 247. (f) Lamlee v. Hanman, 2 Vern. 499, 500; Pitcairne v. Ogbourne, 2 Ves. Sen. 375 ; Neville », Wilkinson, 1 Bro. C. C. 543, 547; Thompson v. Harrison, 1 Cox, 344; Esta- brook v. Scott; 3 Ves. 461;; Scott v. Scott, 1 Cox, 366°; Hunsden v, Cheney, 2 Vern. 150 ; Beverley v. Beverley, 2 Vern. 133. (g) Gale v. Lindo, 1 Vern. 475 ; Lamlee v. Hanman, 2 Vern. 499; Neville v. Wilkin- son, 1 Bro. C. C. 543; 3 P. W. 74; Palmer v. Neave, 11 Ves. 165; Redman v. Red- man, 1 Vern. 348; Morrison «. Arbuthnot, 8 Bro. P. C. 247; England v. Downs, 2 Beav. 522. See Hammersley v. Le Biel, 12 Cl, & Fin. 45. 80 EQUITY JURISPRUDENCE. are cases where bonds are given, or other agreements made, as a reward for using influence and power over another per- son, to induce him to make a will in favour of the obligor, and for his benefit; for all such contracts tend to the deceit and injury of third persons, and encourage artifices and improper attempts to.control the exercise of their free judgment(a). But such cases are carefully to be distinguished from those in which there is an agreement among heirs, or other near rela- tives, to share the estate equally between them, whatever may be the will made by the testator; for such an agreement is generally made to suppress fraud and undue influence, and cannot truly be said to disappoint the testator’s intention, if he does not impose any restriction upon his devisee(6). 190. In all these cases, and those of a like nature, the distinct ground of relief is a meditated fraud or imposition practised by one of the parties upon third persons, by intentional con- cealment or misrepresentation. But the concealment or mis- representation of a material fact will not induce the court to interfere where the parties acted with entire good faith and under mutual innocent mistake(c). There must be some in- gredient of fraud, or some wilful misstatement or concealment by which the other side has been misled. 191. Upon a similar ground, a settlement; secretly made by a woman, in contemplation of marriage, of her own property. to her own separate use, without her intended husband’s privity, will be held void, as it is in derogation of the marital rights of the husband(d), and a fraud upon his just expecta- (a) Debenham v. Ox, 1 Ves. Sen. 276, (b) Story, s. 265; Beckley v. Newland, 2 P. W. 182; Harwood v. Tooke, 2 Sim. 192; Wethered v. Wethered, 2 Sim, 183, (c) Merewether v. Shaw, 2 Cox, 124; Scott v, Scott, 1 Cox, 366; Pitcairme v. Og- bourne, 2 Ves. Sen. 375. (d) Jones v, Martin, 3 Anst. 882; 5 Ves. 266, note ; Fortescue v. Hennah, 19 Ves. 66 ; Bowes v. Strathmore, 2 Bro. C. C, 345; 2 Cox, 28; 1 Ves. 22; 6 Bro. P. C. 427; Ball v. Montgomery, 2 Ves. 194; Carlton 2, Earl of Dorset, 2 Vern. 17; Gregor ». Kemp, 3 Swanst. 404, note ; Goddard v, Snow, 1 Russ. 485; England v Downs, 2 Beav. 522. CONSTRUCTIVE FRAUD. 81 tions(a). And a secret conveyance made by a woman, under like circumstances, in favour of a person for whom she is un- der no moral obligation to provide, would be treated in the like manner. But if she should only reasonably provide for her children by a former marriage, under circumstances of good faith, it would be otherwise(b). However, circumstances may occur which may deprive a husband of any remedy, as if before the marriage he acquires a knowledge of the prior settlement(c), or if he has so conducted himself after the settle- ment, that the wife cannot, without dishonour to herself, live with him, or cannot, without disgrace, retire from the marriage as when the intended husband induced her to cohabit with him before marriage(d). 192. Upon the same ground of public policy, contracts in restraint of marriage are held void/e). A contract which res- trains a person from marrying at all, or a contract to marry a particular person, when that person is not bound by a corres- ponding reciprocal obligation, is treated as mischievous to the general interests of society, and will be cancelled(7). Courts of equity have in this respect followed, although not to an un- limited extent, the doctrine of the civil law, that marriage ought to be free(g). 193. Where the obligation to marry is reciprocal, the con- tract is valid, and even although the marriage is to be deferred (a) And see Lance v. Norman, 2 Ch. Rep. 41; Blanchet v. Foster, 2 Ves. Sen. 264 ; England v. Downs, 2 Beav. 522. See also Lewellin v. Cobbold, 1 Sm. & Gif. 376; Wrigley v. Swainson, 3D. & Sm. 458 ; Chambers v. Crabbe, 34 Beav. 457 ; Blenkinsopp v, Blenkinsopp, 1 D. M. & G. 495. (6) Cotton v. King, 2 P. W. 357, 674; St. George v. Wake, 1 M. & K. 610; England v. Downs, 2 Beav. 522; De Manneville ». Crompton, 1 V. & B. 354; Taylor »v. Pugh, 1 Ha. 608, 613, 616. (c) Ashton v. McDougall, 5 Beav. 56; Griggs v. Staples, 13 Jur. 32 ; Maber v. Hobbs, 2¥Y. & C. Ex. 317. (@) Story, s. 273; Taylor v. Pugh, 1 Ha. 608. (e) Baker», White, 2 Vern. 215. (f) Key ». Bradshaw, 2 Wern. 102; Baker v, White, 2 Vern. 215 ; Woodhouse »v. Shepley, 2 Atk. 535; Lowe v. Peers, 4 Burr. 2225 ; Cock v. Richards, 10 Ves. 429 ; Atkins v. Farr, 1 Atk. 287; Hartley v. Rice, 10 East, 22. (9) Story, s. 274; Dig. Lib. 35, tit.1, 1. 62, 63, 64 ; Key v. Bradshaw, 2 Vern. 102; 1 Fonbl. Eq. B. 1, ch. 4, ». 10. Lord Mansfield in Long v. Dennis, 4 Burr. 2055, said “Conditions in restraint of marriage are odious, and are therefore to be held to the utmost rigour and strictness.” This generality of expression seems to have been disap- proved of by oe Eldon, in Clarke v. Parker, 19 Ves. 13. 82 EQUITY JURISPRUDENCE. to some future period, there may not be, as between the par- ties, any objection to the contract in itself, if in all other respects it is entered into in good faith, and there is no reason to suspect fraud, imposition or undue influence(a). But, even in these cases, equity will relieve against the contract, if it be a fraud upon third persons, as upon parents, or friends stand- ing in loco parentis, from whom expectations are entertained (6). 194. Conditions annexed to gifts, legacies, and devises, in restraint of marriage, are not void, if they are reasonable in themselves, and do not directly or virtually operate as an un- due restraint upon the freedom of marriage. But a contract or condition in restraint of marriage generally is void as against public policy, and the due economy and morality of domestic life(c). And so, if a condition is not in restraint of marriage generally, but still the prohibition is of so rigid a nature, or so tied up to peculiar circumstances, that the party upon whom itis to operate, is unreasonably restrained in the choice of marriage, it will fall under the like consideration(d). But a general condition that the testator’s widow shall not marry is not an unlawful one(e). 195. On the other hand, provisions against improvident matches, especially during infancy, or until a certain age of discretion, are not deemed an unreasonable precaution for parents and other persons to affix to their bounty(/). Thus a legacy given to a daughter to be paid to her at twenty- one years of age, if she does not marry until that period; would be held good(g). So is a condition not to marry (a) Lowe v. Peers, 4 Burr. 2229, 2230; Key v. Bradshaw, 2 Vern. 102. (b) Story, s. 275 ; Woodhouse v. Shepley, 2 Atk. 535, 539; Cock v, Richards, 10 Ves. 436, 438. (c) Keily v. Monck, 3 Ridg. 205, 244, 247, 261; Rishton v. Cobb, 9 Sim. 615; Scott. v. Tyler, 2 Bro. C. C. 488; Harvey v. Aston, 1 Atk. 361. (@ Keily v. Monck, 3 Ridg. 205, 244, 247, 261; Morley v. Rennoldson, 2 Ha, 570.- (e) Barton v. Barton, 2 Vern. 308; Lloyd ». Lloyd, 2 Sim. N.S. 255. Whether a. condition defeating a gift toa man on his second marriage is good or bad, does not appear to be decided. See Evans v. Rosser, 2H. & M. 190. (f) Scott v. Tyler, 2 Dick. 719. (g) See Stackpole v. Beaumont, 3 Ves. 96, 97; Scott v. Tyler, 2 Dick. 721, 722, 724; Beaumont v. Squire, 211. J. Q. B. 123; Desbody v. Boyville, 2 P. W. 5473. Clarke v. Parker, 19 Ves. 1; Lloyd v. Branton, 3 Meriv. 108 ; Dashwood v. Bulk-- ley, 10 Ves. 230; and see Younge v. Furse, § D. M. & G. 756. CONSTRUCTIVE FRAUD. 83 without the consent of parents or trustees, or other specified persons. 196. A distinction is drawn between cases where, in de- fault of a compliance with the condition, there is a bequest over, and cases where there is not a bequest over, upon a like default of the party to comply with the condition. In the former case, the bequest over becomes operative upon such default, and defeats the prior legacy(a). In the latter case (that is, where there is no bequest over,) the condition is treated as ineffectual, upon the ground that the condition is in terrorem only, and does not impose a forfeiture(b). 197. Another distinction is taken between conditions an- nexed to a bequest of personal estate, and the like conditions, annexed to a devise of real estate, or to a charge on real estate, or tothings savoring of the reality. In the latter cases (touching real estate) the doctrine of the common law, as to conditions, is strictly applied. If the condition be precedent, it must be strictly complied with, in order to entitle the party to the benefit of the devise or gift. If the condition be subsequent, its validity will depend upon its being such as the law will allow to devest an estate. For, if the law deems the condition void as against its own policy, then the estate will be absolute and free from the condition. If, on the other hand, the con- dition is good, then a non-compliance with it will defeat the estate, in the same manner as any other condition subsequent will defeat it(c.) . (a) Clarke v. Parker, 19 Ves. 13; Lloyd v, Branton, 3 Mer, 108, 119; Chauncy v. Graydon, 2 Atk. 616; Wheeler v. Bingham, 3 Atk. 367 ; Malcolm v. O’Callaghan, 2 Mad. 350 ; Gardiner v. Slater, 25 Beav. 509. And see Creagh v. Wilson, 2 Vern. 572; Gillett v. Wray, 1 P. W. 284. But where the condition of a devise was the giving of a bond not to marry or cohabit with certain persons, with a devise over, the court refused to enforce the condition, Poole v. Bott, 11 Ha. 33. (b) Story, s. 286; Harvey v. Ashton, 1 Atk. 361, 375, 377 ; Reynish v. Martin, 3 Atk. 330 ; Pendarvis v. Hicks; 2 Freem. 41; Pullen v. Ready, 2 Atk. 587; Long v. Dennis, 4 Burr. 2055 ; Eastland v. Reynolds, 1 Dick. 317. But see Re Dickson, 1 Sim. N. 8S. 37, as to a bequest over. (c) Story, s. 288; Co. Litt. 206 aand b; 217a; Bertie v. Faulkland, 3 Ch. Cas, 130 ; 2 Vern. 333; Havey v. Aston, 1 Atk. 361 ; Reynish v. Martin, 3 Atk, 330, 332, 333 ; Fry v. Porter, 1 Mod. 300 ; Long v. Rickets, 28. & S. 179 ; Popham v. Bamfield, ay Torn. 8 Graydon v. Hicks, 2 Atk. 16; Peyton v. Bury, 2 P. W. 626. 84 EQUITY JURISPRUDENCE. 198. But, if the bequest be of personal estate, a different rule seems to have prevailed, founded, in all probability, upon the doctrines maintained in the ecclesiastical courts, and de- rived from the canon and civil law(a). If the condition be subsequent and general, then the condition is altogether void, and the party retains the interest given, discharged of the condition(b). If it be only a limited restraint (such as to a marriage with the consent of parents, or not until the age of twenty-one,) and there is no bequest over upon default, the condition subsequent is treated as merely in terrorem ; and the legacy becomes pure and absolute(c). Bui if the restraint be a condition precedent, then it admits of a very different appli- cation from the rule of the common law in similar cases as to real estate. For, if the condition regard real estate, although it may be void, yet if there is not a compliance with it, the estate will never arise in the devisee. But if it be a legacy of personal estate, under like circumstances, the legacy will be held good and absolute, as if no condition whatsoever had been annexed to it(d). 199. Whether the same rule is to be applied to legacies of personal estate upon a condition precedent, of a limited, and qualified, and legal character, where there is no bequest over, and there has been a default in complying with the condition, has been a question much vexed and discussed in courts of equity, and upon which some diversity of judgment has been expressed. There are, certainly, authorities which go directly to establish the doctrine, that there is no distinction in cases of this sort between conditions precedent and conditions sub- sequent. In each of them, if there is no bequest over, the legacy is treated as pure and absolute, and the condition is made in terrorem only. The civil law and ecclesiastical law (a) 1 Roper on Legacies, by White, 650; Scott v. Tyler, 2 Bro. C. CO. 487; 2 Dick. 712; Stackpole v. Beaumont, 3 Ves. 96. (b) See Morley v. Rennoldson, 2 Ha. 570. (©) Lloyd v. Branton, 3 Mer. 119; Marples v. Bainbridge, 1 Mad. 590; Garret v. Pritty, 2 Vern. 293; Wheeler v. Bingham, 3 Atk. 364. And see W ». B., 11 Beav. 621; Poole v. Bott, 11 Ha. 33. (@) Story, s. 289. CONSTRUCTIVE FRAUD. 85 recognize no distinction between conditions precedent and conditions subsequent, as to this particular subject(a). On the other hand, there are authorities which seem to inculcate a different doctrine, and to treat conditions precedent, as to lega- cies of this sort, upon the same footing as any other bequests or devises at the common law; that is to say, that they are to to take effect only upon the condition precedent being com- plied with, whether there be a bequest over or not(b). 200. But, whichever of these opinions shall be deemed to maintain the correct doctrine, there is a modification of the strictness of the common law, as to conditions precedent in regard to personal legacies, which is at once rational and con- venient, and promotive of the real intention of the testator. It is, that where a literal compliance with the condition be- comes impossible from unavoidable circumstances, and with- out any default of the party, it is sufficient that it is complied with, as nearly as it practically can be, or (as it is technically called) Cy pres. This modification is derived from the civil law, and stands upon the presumption, that the donor could not intend to require’ impossibilities, but only a substantial compliance with his directions, as far as they should admit of being fairly carried into execution. It is upon this ground that courts of equity constantly hold, in cases of personal lega- cies, that a substantial compliance with the condition satisfies it, although not literally fulfilled. Thus, if a legacy upon a condition precedent should require the consent of three per- sons to a marriage, and one or more of them should die, the consent of the survivor or survivors would be deemed a suffi- (a) See Harvey v. Aston, 1 Atk. 375; Reynish v. Martin, 3 Atk. 332. @® Story, s. 290. That there isno difference between conditions précedent and con- ditions subsequent, as to this point, was maintained by Lord Hardwicke, in Reynish v. Martin, 3 Atk. 330; and recognized by Lord Clare, in Keily v. Monck, 3 Ridgw. 263 ; and by Sir Thomas Plumer, in Malcolm v. O’Callaghan, 2 Mad. 349, 353. See also Garbut v. Hilton, 1 Atk. 381; Gardiner v. Slater, 25 Beav. 509, But the contrary doc- trine is indicated in Hemmings v. Munckley, 1 Bro. C. C. 303; Scott v. Tyler, 2 Bro. Gr C. 488 ; 2 Dick. 723, 724 ; Stackpole v. Beaumont, 3 Ves. 89. See also Knight v. Came- ron, 14 Ves. 389; Clarke v. Parker, 19 Ves. 13 ; Elton v. Elton, 1 Ves. Sen. 4 ; Clifford v. Beaumont, 4 Russ. 325. The weight of authorityis, in Mr. Roper’s opinion, with the latter doctrine, Roper on Legacies, 654, 715; and see note to 3 Vea., 89, and note 1 Atk. 361, 86 EQUITY JURISPRUDENCE. cient compliance with the condition(a). And, @ fortiori, this doctrine would be applied to conditions subsequent(d). 201. Conditions annexed to a gift, the tendency of which is to induce husband and wife to live separate, or be divorced, are, upon grounds of public policy and public morals, held void(c). This principle is not applicable where the bequest is of such a nature as not to influence the conduct of the husband and wife, and the bequest to the husband or wife living apart from each other is to take effect immediately upon the death of the testator(d). 202. Conditions annexed to devises, both of real and per- sonal estate, to a widow, that they shall become inoperative in the event of the marriage of the devisee, are valid(e). The law recognizes in the husband that species of interest in the widowhood of his wife which makes it lawful for him to res- train a second. marriage( f). 203. There is a difference, it has been said, even in equity, between a condition and limitation, in a gift to one not married, and that one may give an estate to any woman, to continue so long as she shall remain single ; but if he give a life, or other estate, and then append a condition to defeat that estate, if she marries, the condition is not good(g). Such a distinction may be valid, perhaps, in regard to the creation of estates in the realty, but it may be doubted if it could fairly be maintained in regard to testamentary gifts of real estate, and especially of (a) Swinburne on Wills, Pt. 4, 262 ; 1 Roper on Legacies, 601. See Clarke v. Parker, 19 Ves, 1, 16, 19. (6) Story, s. 291. See 1 Roper on Legacies, 691; Peyton v. Bury, 2 P. W. 626; Graydon v. Hicks, 2 Atk. 16,18; Aislabie v. Rice, 3 Mad. 256 ; Worthington v Evans, 18. &S8. 165. (c) Tenant v. Braie, Tothil, 141 ; Brown v. Peck, 1 Eden, 140; Wren v. Bradley, 2 D. & Sm. 49. (a) Shewell v. Dwarris, Johns. 172. (e) Barton v. Barton, 2 Vern. 308 ; Jordan v. Holkam, Ambl. 209 ; Lloyd v. Lloyd, 2 Sim. N.S, 255, 263; Marples v. Bambridge, 1 Mad. 590. (f) Lloyd v. Lloyd, 2 Sim. N. S. 255. And see Grace v. Webb, 15 Sim. 384 ; Tricker v. Kingsbury, 7 W. R. 652; Charlton v. Coombes, 11 W. R. 1038; Newton v. Mars- den, 2 J. & H. 356; Craven v. Brady, L. R. 4{Eq. 209. (9) Lloyd % Lloyd, 2 Sim. N.S. 255. CONSTRUCTIVE FRAUD. 87 personalty, where the general intent of the donor is more to be regarded than the precise technical form of the gift(a). 204. The question as to what conditions, affecting marriage, are valid, must depend upon the circumstances of each par- ticular case, and will be very materially affected, by the con- sideration, how far the condition was one fairly applicable to the relation of the parties, and the peculiar views and situation of the donor and donee. It has been decided, that a condition, in a devise, that if the devisee “shall marry, contrary to the order and established rules of the people called Quakers, such devise should cease, as to him and his issue, and be void,” is valid and legal(b). So it is a legal condition which avoids the gift, provided the donee marry a Scotchman(c), or a papist(d). And where a father revoked the provision in his will, on con- dition that his daughter became a nun, it was held a legal condition, and that the provision ceased on her becoming a nun, although there was no bequest over(e). 205. Bargains and contracts in general restraint of trade, are universally prohibited because they have a tendency to pro- mote monopolies and to discourage industry, enterprise, and justicompetition(/). But such as are in restraint of it only as to particular places or persons, or for a limited time, if founded upon a good and valuable consideration, are valid(y). And combinations among workmen and employers to demand or to pay only certain prices for labour, with a penalty to each other upon breach of the agreement so made, are void as (a) See Evans v. Rosser, 2 H. & M. 190; Heath v. Lewis,3 D. M. & G. 954 ; West v. Kerr, 6 Ir. Jur. 141; Potter v. Richards, 1 Jur. nN, 8. 462. (6) Haughton v. Haughton, 1 Moll. 612. (c) Perrin v. Lyon, 9 East, 170. (ad) Duggan v. Kelly, 10 Ir. Eq. 295. And see 1 Eq. Ca, Ab. 110, pl. 2. (e) Re Dickson’s Trust, 1 Sim. N. 8. 37. And see Clavering v, Ellison, 8 D. M. & G, 662 ; 7 H. L. 707. (f) Mitchel v. Reynolds, 1 P. W. 181; Morris v. Colman, 18 Ves. 437. (9) Whittaker v. Howe, 3 Beav. 383; Avery v. Langford, Kay. 666; Benwell ». Inns, 24 Beav. 307 ; Harms v. Parsons, 32 Beav. 328 ; Chesman v. Nainby, 1 Bro, P. C. 294; Shackle v. Baker, 14 Ves. 468; Cruttwell v. Lye, 17 Ves. 336; Harrison v. Gardner, 2 Mad. 198. And see Mossop v. Mason, 16 Gr. 302: in App. 17 Gr. 360 ; Catt ». Tourle, L. R. 4 Chan. 654; Leather Cloth Co. v, Lorsont, L. R. 9 Eq. 345; Ontario Salt Co. v. Merchants’ Salt Co. 18 Gr. 540. But see Allsopp v. Wheatcroft, L. R. 15 Eq. 59. 88 EQUITY JURISPRUDENCE. tending to restrain trade(a). Buta person may lawfully sell a secret in his trade or business, and restrain himself from using that secret(d). . 206. Agreements whereby parties engage not to bid against each other at a public auction, have been held in the United States to be void, as a fraud upon third parties(c). But a mere agreement between two persons, each desirous of effecting the purchase of an estate, that they will not bid against each other, but that one shall retire and leave the field open to the other, has been held not inequitable(d). Where, however, at a tax sale, a considerable portion of the audience combined not to bid against each other, in order that whole lots should be knocked down for the taxes in arrear, and the combination extended even to driving others from the field of competition by so bidding against them as to make a profitable purchase hopeless, the sale was set aside(e). 207. In equity a vendor could lawfully without any express stipulation, or without making the fact publicly known, fix a reserved price and employ a person to bid for him, so as to pre- vent the property going under that price; but if more than one person be employed to bid, or if the object of the employ- ment of a bidder be to run up and enhance the price, or if the sale profess to be without reserve, and a bidder be never- theless employed, there is a fraud in equity as well as at law(f). 208. It has been lately enacted(g), that unless in the particu- (a) Hilton v. Eckersley, 6 El. & Bl. 47. (6) Bryson v. Whitehead, 1S. & S. 74. See also Benwell v. Inns, 24 Reav. 307; Edmonds v. Plews, 6 Jur. n. s. 1091. (c) Jones v, Caswell, 3 Johns. Cas. 29; Doolin». Ward, 6 Johns. 194; Wilbur ». Howe, 8 Johns. 444 ; Gardiner v. Morse, 25 Maine, 140; Brisbane v. Adams, 3 Comst. 130 ; Hamilton v. Hamilton, 2 Rich. Eq. 355 ; Atcheson v. Mallon, 43 N. Y. 147. (d) Re Carew’s Estate, 26 Beav. 187 ; Galton v. Emuss, 1 Coll. 243. (e) Henry v. Burness, 8 Gr. 345; Davis v. Clark, 8 Gr. 358; Massingberd v. Mon- tague, 9 Gr. 92. (f) Smith v. Clarke, 12 Ves. 477 ; Woodward v. Miller, 2 Coll. 279; Robinson». Wall, 2 Ph. 372; Flint v. Woodin, 9 Ha. 618. See Mortimer v Bell, L. R.1 Chan. 10; Tinerinck v. Hallett, L. R. 2 Chan. 21; Green v. Baverstock, 14 C. B. N.S. 204. (g) Ont. Stat. 31 Vic. c. 28. CONSTRUCTIVE FRAUD. 89 lars or conditions of sale by auction of any land, it is stated that such land will be sold subject to a reserved price, or to the right of the seller to bid, the sale shall be deemed and taken to be without reserve, and where a sale is without reserve, it shall not be lawful for the seller or for a puffer to bid at such sale, or for the auctioneer to take knowingly any bidding from the seller or from a puffer. Upon any such sale, subject to. a right for the seller to bid, it shall be lawful for the seller, or any one puffer to bid, in such manner as the seller may think proper. But nothing contained in the Act shall be taken to authorize any seller to become the purchaser at the sale. 209. If an intending purchaser, in order to obtain property at a reduced price, or for any like object, employs to negotiate the purchase as principal, a person to whom he knows the owner from feelings of personal regard will sell the property for less. than to others, and the court is satisfied that the deception has operated to the prejudice of the seller, specific performance of the contract will not he enforced(a). 210. Where a contract is entered into between parties pend- ing a bill in parliament for the charter of a corporation for a private purpose, (as for example, arailway,) andthe agreement is to be concealed from parliament, in order to procure the bill to be passed without the knowledge thereof, the contract will be held void as a constructive fraud upon parliament, as well as upon the public at large.(b) But, it has been said, there is. (a) Popham v. Eyre, Lofft, 786; Philips v. Duke of Bucks. 1 Vern. 227 ; Bonnett v. Sadler, 14 Ves. 527; Fellows v. Lord Gwydyr, 1 Sim. 63; Sug. V. & P. (14th Ed.) 219. And see Rodgers v. Rodgers, 13 Gr. 143, where the same principle was applied in the case of a sale undera decree. Also Twining v. Morrice, 2 Bro. O. C. 331; Townsend v. Stangroom, 6 Ves. 328. (0) Story, s. 293 ; Lord Howden ». Simpson, 10 Ad. & Ell. 793; Simpson »v. Lord Howden, 1 Keen, 583; 3 M. & ©. 97; The Vauxhall Bridge Co. v. Earl Spencer, 2 Mad. 356; Jac. 64; and see Mangles v. Grand Dock Colliery Co. 10 Sim. 519; Taylor v. Chichester Co. Rail Co. L. R. 2 Ex. 356. But see Lord Howden ». Simpson, 9 Cl. & Fin. 61; Lord Petre v. Eastern Counties R., 1 Railw. Cas. 462 ; Earl of Shrewsbury v. North Staffordshire R. Co., L. R. 1 Eq. 593 ; Edwards v. Grand Junction Rail. Co. 1M. & C. 650; Caledonian & Dumbartonshire Rail Co. v Helensburgh Harbour Trus-. ees, 2 Macq. 391. A contract to abandon the prosecution of a petition presented against the return of a member of Parliament accused of bribery is illegal, Coppoch v. Bower, 4M. & W. 361. 90 EQUITY JURISPRUDENCE. no fraud upon the Legislature unless the agreement is one which the parties are bound to communicate(a). 211. Agreements, which are founded upon violations of pub- lic trust or confidence, or of the rules adopted by courts in furtherance of the administration of public justice, are held void(s). Thus, an agreement by a party to a suit to pay a wit- ness a certain sum for his attendance, and more if the party promising, succeeded in the suit, is void(c). Wager contracts, which are contrary to sound morals, or injurious to the feelings or interest of third persons, or against the principles of public: policy or duty, are void(d). So are contracts to enable a person to violate the license laws(e), and contracts which have a tendency to encourage champerty(f). 212. Another extensive class of cases, falling under this head of constructive fraud, respects contracts for the buying, selling, or procuring of public offices(g). All such contracts must have a material influence to diminish the respectability, re- sponsibility, and purity of public officers. They are justly deemed contracts of moral turpitude(h), and are held utterly void, as contrary to the soundest public policy ; and, indeed, as a constructive fraud upon the government(2). 213. Another class of agreements, held void on account of (a) Ker on Frauds, 325. (6) See Bowes v. City of Toronto, 6 Gr. 1 ;11 Moo. P. C. 463; Cooth v. Jackson, 6 Ves. 12; Johnson». Ogilby, 3 P. W. 276. (c) And see Williams v. Bayley, L. R. 1 H. L. 200; 35 L. J. Ch. 717; Collins ». Blantern, 2 Wils. 347 ; Keir v. Leeman, 6 Q. B. 308. . (d) De Costa v. Jones, Cowp. 729; Atherfold v. Beard, 2T.R. 610; Gilbert v. Sykes, 16 East, 150; Hartley v. Rice, 10 East, 22; Allen v. Hearn, 1 T. R. 56; Shirley v. San- key, 2 Bos. & Pull. 130. See Ramloll v. Soojumaull, 6 Moore, P. C. 300. (e) Ritchie v. Smith, 6 C. B. 462. (f) Powell v. Knowler, 2 Atk. 224; Reynell v. Sprye, 1D. M. & G. 660. _(g) 1 Fonbl. Ey. B. 1, ch. 4, s. 4, note (u); Chesterfield v. Jansen, 1 Atk. 352; 2 Ves. Sen. 124, 156; Hartwell v. Hartwell, 4 Ves. 811, 815. (h) Morris v. McCulloch, 2 Ed. 190; Ambl. 435; Law v. Law, 3 P. W. 391; Cas. t Talb. 140; Hanington v. Du Chastel, 1 Bro. U. OC. 124. (4) Bellamy v. Burrow, Cas. t. Talb. 97; Hanington. Du Chastel,1 Bro. C. C. 124; 167, note; Garforth v. Fearon, 1 H. BL 327, 329; Palmer v. Bate, 2 Bro. & Bing. 673; Waldo v. Martin, 4 B. & Cr. 319; Parsons v. Thompson, 1 H. Bl. 223, 326 Ive v. Ash, Prec. Ch. 199; Hast India Co. v. Neave, 5 Ves. 173, 181, 184; Osborne, v. Williams, 18 Ves. 379. 2 CONSTRUCTIVE FRAUD. 91 their being against public policy, are such as are founded upon corrupt considerations, or moral turpitude, whether they stand prohibited by statute or not; for these are treated as frauds upon the public or moral law(a). Hence, all agreements, bonds, and securities, given as a price for future, and all agree- ments not under seal to pay for past(b) illicit intercourse(c) (premium pudoris), or for the commission of a public crime, or for the violation of a public law, or for the omission of a public duty, are deemed incapable of confirmation or enforcement(d)- 214. A party is not estopped from avoiding his deed by proving that it was executed for a fraudulent, illegal orimmoral purpose(e). But where a party comes to be relieved from an illegal or immoral contract or its obligations, he must distinctly and exclusively state such grounds of relief as the court can legally attend to, and must not accompany his claim to relief, which may be legitimate, with other claims and complaints, which are contaminated with the original immoral purpose. If he sets up as a ground of relief the non-fulfilment of the illegal contract on the other side, and thereby that he is released from his obligation to perform it, that shows that he still relies upon the immoral contract and its terms for relief, and therefore the court will refuse it(/). 215. Other cases might be put to illustrate the doctrine of (a) Beaumont v. Reeve, 8 Q. B. 483. (8) Evans v. Carrington, 30 L. J, Ch. 370 ; Robinson v. Cox, 9 Mod. 263; Friend v Harrisoa, 2 C. & P. 584. (oO Story, s. 296; Walker v. Perkins, 3 Burr. 1568; Franco v. Bolton, 3 Ves. 370; Benyon v. Nettlefold, 17 Sim. 56; Clarke v. Periam, 2 Atk. 333, 337 ; Whaley v. Nor- ton, 1 Vern. 483 ; Robinson v. Gee, 1 Ves. Sen. 251, 254; Gray v. Mathias, 5 Ves. 286 ; Ottley v. Browne, 1 B. & B. 360 ; Battersby v. Smith, 3 Mad. 110; Thompson v. Thomp- aon, 7 Ves. 470; St. John v. St. John, 11 Ves. 535, 536. But see Spear v. Hayward, Prec. Ch. 114. . (d) Collins v. Blantern, 2 Wils. 341; Paxton v. Popham, 9 East, 421; Gas Light and Coke Co. », Turner. 5 Bing. N. C. 666; 6 Bing. N.C. 324; Stratford & Moreton Rail Co, v. Stratton, 2B. & Ad. 518; Benyon v. Nettlefold,17 Sim. 56; 3 Mac. & G. 94; Horton v. Westminster Improvement Commissioners, 7 Ex. 780. ( Story, s. 296; Batty v. Chester, 5 Beav. 103. (f) Stickland », Aldridge, 9 Ves. 516; Muckleston v. Brown, 6 Ves. 52; Paine v.. Hall, 18 Ves. 475; Edwards v. Pike, 1 Cox, 17. And see Adlington v, Cann. 3 Atk: 141; cited 9 Ves. 519 ; Wallgrave v. Tebbs, 2 K. & J., 313; Lomax v. Ripley, 3 Sm. & G, 48. 92 EQUITY JURISPRUDENCE. courts of equity, in setting aside agreements and acts in fraud of the policy of the law. ‘Thus, if a devise is made upon a secret trust for charity, in evasion of the statutes of mort- main, it will be set aside(a). So, if a parent grant an annuity to his son to qualify him to kill game, he will not be permitted, by tearing off the seal, to avoid the conveyance(b). Soifa person convey an estate to another to qualify him to sit in parliament, or to become a voter, he will not be permitted to avoid it, upon the ground of its having been done by him in fraud of the law, and upon a secret agreement that it shall be given up(c). Contracts affecting public elections are held void; so are assignments of rights of property, pendente lite, when they amount to or partake of, the character of maintenance or champerty, and are reprehended by the law. 216. There is a distinction often, but not universally, acted on in courts of equity as to the nature and extent of the relief, which will be granted to persons who are parties to agree- ments or other transactions against public policy, and who are, therefore, to be deemed participes criminis. In general (for it is not universally true) where parties are concerned in illegal agreements or other transactions, whether they are mala prohibita or mala in se, courts of equity, following the rule of law, as to participators in a common crime, will not at present interpose to grant any relief; acting upon the known maxim, In pari delicto potior est conditio defendentis, et possi- dentis(d). 217. But where the agreements or other transactions are re- pudiated on account of their being against public policy, the circumstance, that the relief is asked by a party who is parti- ceps criminis, is not in equity material. The reason is, that (a) Curtis v. Perry, 6 Ves. 747 ; Birch v. Blagrave, Ambl. 264, 265. (b) See the Duke of Bedford v. Coke, 2 Ves. Sen. 116, 117. And see Langlois v. Baby, 10 Gr. 358; 11 Gr.21; Emes v. Barber, 15 Gr. 679. (c) Wallis v. Duke of Portland, 3 Ves. 494 ; Stevensv. Bagwell, 15 Ves. 139 ; Stra- chan v. Brandon, 1 Ed. 303; cited 18 Ves. 127. (d) See Bromley v. Smith, Doug. 697, 698 ; Vandyck v. Hewitt, 1 East, 96; Howson ov. Hancock, 8 T. R. 575 ; Browning v. Morris, Cowp, 790; Osborne v. Williams, 18 Ves. 379; Bosanquet v. Dashwood, Cas. t. Talbot 37, 40. CONSTRUCTIVE FRAUD. 93 the public interest requires that relief should be given, and it is given to the public through the party(a). And in these cases relief will be granted not only by setting aside the agree- ment or other transaction, but, also, in many cases, by order- ing a repayment of any money paid under it(d). 218. Where both parties are in delicto, concurring in an illegal act, it does not always follow, that they stand in pari delicto ; for there may be, and often are, very different degrees in their guilt(c). One party may act under circumstances of oppression, imposition, hardship, undue influence, or great in- equality of condition or age; so that his guilt may be far less in degree than that of his associate in the offence(d). And, besides, there may be, on the part of the court itself, a neces- sity of supporting the public interests or public policy, in many cases, however reprehensible the acts of the parties may be(e). 219. Questions have been raised as to how far contracts, which are illegal by some positive law, or which are declared so upon principles of public policy, are capable, as between the parties, of a substantial confirmation. The general rule is, that wherever any contract or conveyance is void, either by a ‘positive law, or upon principles of public policy, it is deemed incapable of confirmation upon the maxim, Quod ab inttio non valet, in tractu temporis non convalescet(f). But where (a) St. John vw St. John, 11 Ves. 535, 536; Bromley v. Smith, Doug. 695, 697, 698 ; Hatch v. Hatch, 9 Ves. 292, 298; Rider v. Kidder, 10 Ves, 360 ; Roberts v. Roberts, 3 P. W. 66, 74, and note (1); Browning v. Morris, Cowp. 790; Morris v. McCullooh, 2 Ed. 190, and note id. 193 ; Reynell v. Sprye, 1D. M. & G. 660. And see Sharp v. Tay- lor, 2 Ph. 801. (b) Story, s. 298. See Goldsmith v. Bruning, 1 Eq. Abr. Bonds, &. F. 4; Smith v. Bruning, 2 Vern. 392; Morris v. McCulloch, 2 Ed. 190. And see Symes v. Hughes, L. R. 9 Eq. 475; Lincoln v. Wright, 4D. & J.16; Haigh v. Kaye, L. R.7. Chan. 469. (c) Smith v. Bromley, Doug. 696 ; Browning »v. Morris, Cowp. 790 ; Osborne v. Wil- jams, 18 Ves. 379. (d) Bosanquet'v. Dashwood, Cas. t. Talb. 37, 40, 41; Chesterfield ». Jansen, 2 Ves. Sen. 156, 157; Osborne v. Williams, 18 Ves. 379; Bayley v. Williams, 4 Giff. 638. (e) Story s. 300. See ‘Woodhouse v. Meredith, 1 J. & W. 224, 225; Bosanquet v. Dashwood, Cas. t. Talb. 37, 40, 41; Smith «. Bromley, Doug. 696, note; Browning v. Morris, Cowp. 790 ; Morris v. McCulloch, 2 Ed. 190, and note, 193 ; W—— v», B—. 32 Beav. 574; and see Davies v. Otty, 12 L. T. N.S. 749; 13 W. R. 484. (f) Vernon’s case, 4 Co. 2 b, 94 EQUITY JURISPRUDENCE, e it is merely voidable, or turns upon circumstances of undue advantage, surprise, or imposition, there, if it is deliberately, and upon full examination, confirmed by the parties, such confirmation will avail to give it an ex post facto validity(a). 220. In the class of cases embraced under the second head of constructive fraud, or those which arise from some peculiar confidential or fiduciary relation between the parties, there is often to be found some intermixture of deceit, imposition overreaching, unconscionable advantage, or other mark of direct and positive fraud. But the principle on which courts of equity act in regard thereto, stands, independent of any such ingredient, upon a motive of general public policy. The general principle, which governs in all cases of this sort, is that if a confidence is reposed, and that confidence is abused, courts of equity will grant relief (6). 221. All contracts and conveyances, whereby benefits are secured by children to their parents, or to persons standing in loco parentis, are objects of jealousy, and if they are not en- tered into with scrupulous good faith, and are not reasonable under the circumstances they will be set aside, unless third persons have acquired an interest under them(c) ; especially where the original purposes for which they have been obtained are perverted or used as a mere cover(d). 222. While parental influence lasts, it lies on the parent (a) Story, ». 306 ; Chesterfield v. Jansen, 2 Ves. Sen. 125, 1 Atk. 301; Roberts v Roberts, 3 P. W. 74, note ; Cole v. Gibson, 1 Ves. Sen. 507 ; Crowe ». Ballard; 3 Bro. C. C, 120; Curwyn v. Milner, 3 P. W. 292, notec ; Cole v. Gibbons, 3 P. W. 289. (b) Story ss. 307, 308 ; Gartside v, Isherwood, 1 Bro. C. C. 560, 562 ; Osmond », Fitz roy, 3 P.W, 129, 131, note ; Fox v. Mackreth, 2 Bro. C. C. 407, 420; Huguenin w. Bas- ley, 14 Ves. 290. See also Blandy v. Kimber, 24 Beav. 148. (c) Baker v. Bradley, 7 D. M.& G. 597; Wright v. Vanderplank, 2K. & J.1; 8D. M. & G. 133 ; McConnell ». McConnell, 15 Gr. 20; McGregor v. Rapelje, 17 Gr. 41; 18 Gr. 446: Archer v, Hudson, 7 Beav. 551 ; Maitland v. Irving, 15 Sim. 437 ; Mait- land v. Backhouse, 16 Sim 68; Johnston v. Johnston, 17 Gr. 493. But see Denison». Denison, 13 Gr, 114, 596. (d) Story, s. 308 ; Young v. Peachey, 2 Atk. 254; Glissen v. Ogden, cited ibid. 258; Cocking v. Pratt, 1 Ves. Sen, 400 ; Hawes » Wyatt, 3 Bro. C. C. 156; Carpenter » Herriot, 1 Ed. 338; Blackbornv. Edgely, 1 P. W. 607; Blunden v. Barker, 1 P. W. 639; Morris v. Burroughs, 1 Atk. 402; Tendril », Smith, 2 Atk. 85; Herons Heron, 2 Atk. 160. CONSTRUCTIVE FRAUD. 95: upholding the transaction or maintaining the gift, to disprove the exercise of that influence by showing that the child was really a free agent, and had competent independent advice, or had at least competent means of forming an independent judgment, and fully understood what he was doing, and was desirous of doing it(a). The principle applies for at least a year after the coming of age of the child, and will extend beyond: the year if the dominion lasts(b). 223. Although transactions between parent and child are regarded with jealousy, yet arrangements between father and son, for the settlement of family estates, if the settlement be not obtained by misrepresentation or the suppression of the truth, if the father acquires no personal benefit, and the settle- ment is a reasonable one, will be supported even though the father did exert parental authority and influence over the son to procure the execution ofit(c). Transactions between parent and child, in the nature of a settlement of property or rights, are regarded with favour, and not with minute regard to the consideration(d); but if in the nature of bounty from the child soon after he obtains his majority, they are to be viewed with jealousy, and as the subject of interposition of the court, to guard against undue influence(e). 224. The same general principles apply to other family relations besides those of parent and child( /), and to persons standing in the situation of quasi guardians, or’ confidential (a) Heron v. Heron, 2 Atk. 160; Young v. Peachey, 2 Atk. 254; Rhodes v. Cook, 4L. J. Ch. 149; Casborne v. Barsham, 2 Beav. 76; Hoghton v. Hoghton, 15 Beav. 278 ; Hartopp v. Hartopp, 21 Beav. 259; Baker v. Bradley, 7D. M. & G. 597 ; Wright v. Vanderplank, 8 D. M. & G. 135, 146 ; Bury v. Oppenheim, 26 Beav. 594 ; Savery v. King, 5 H. L. 627, 655; Jenner v. Jenner, 2D. F. & J. 359; Davies v. Davies, 4 Giff. 417 ; Berdoe v. Dawson, 34 Beav. 603; Chambers v. Crabbe, 34 Beav. 457; Pott v. Surr, 34 Beav. 543 ; Beale v. Billing, 13 Ir. Ch. 250. (0) Walker v. Symonds, 3 Swanst. 1,72; Warde v. Dickson, 5 Jur. n. 8. 699; Han- nah v. Hodgson, 30 Beav. 19. But see Thornber v, Sheard, 12 Beav. 589. (c) Hartopp v. Hartopp, 21 Beav. 259. See Head v. Godlee, Johns. 536 ; Jenner v.. Jenner, 2D. F. & J. 359. (d) But see Douglas v. Ward, 11 Gr. 39. (e) Story s. 309 a; Baker ». Bradley, 7 D. M. & G. 597 ; Field v. Evans, 15 Sim, 375 ;. Turner v. Collins, L. R. 7 Chan. 329. (f) Clarke v. Hawke, 11 Gr. 527. 96 EQUITY JURISPRUDENCE. advisers, as medical advisers(a), or ministers of religion(b), and to every case where influence is acquired and abused, where confidence is reposed and betrayed(c). 225. The relation of client and attorney or solicitor, must give rise to great confidence between the parties, and to very ‘strong influence over the actions, and rights, and interests of the client(d). Hence, the law, with a wise providence, not only watches over all the transactions of parties in this predi- cament, but it often interposes to declare transactions void, which, between other persons, would be held unobjection- able(e). 226. A solicitor is not allowed to bring his own personal in terest in any way into conflict with that which his duty re- quires him to do(/f), or make a gain for himself in any manner whatever at the expense of his client in respect of the subject of any transactions, connected with or arising out of the re- (a) Dent v. Bennett, 4 M. & C. 269. (b) Nottidge v. Prince, 2 Giff. 246. (c) Smith ». Kay, 7 H. L. 751; Brown v. Kennedy, 33 Beav. 133. (d) Walmesley ». Booth, 2 Atk. 25. See also Barnesley v. Powell, 1 Ves, Sen. 284; Bulkley v, Wilford, 1 Cl. & Fin. 102, 177 183 ; Edwards v. Meyrick, 2 Ha. 60, 68; Corley v. Lord Stafford, 1D. & J. 238. See as to dealings between solicitors and clients, McCann v. Dempsey, 6 Gr. 192; Graves v. Smith, 6 Gr. 306; Rees v. Wittrock, 6 Gr. 418 ; Graves v. Henderson, 8 Gr. 1; 2 Er. & Ap. 9; Fleming » Duncan, 17 Gr. 76;: Oakes v. Smith, 17 Gr. 660. (ce) Welles v. Middleton, 1 Cox, 112, 125 ; 3 P. W. 131, note (1); Wright v. Proud, 13 Ves. 186; Wood v. Downes, 18 Ves. 126; Savery v. King, 5 H. L. 627; De Mont- morency. v. Devereux, 7 Cl. & Fin. 188; Jones v. Tripp, Jac. 322; Goddard ». Carlisle, 9 Price, 169 ; Edwards v. Meyrick, 2 Ha. 68. See Tomson v. Judge, 3 Drew. 306; Re Holmes’s Estate, 3 Giff. 337 ; O’Brien v. Lewis, 4 Giff. 221; Walker v. Smith, 29 Beav. 394; Gardener v. Ennor, 35 Beav. 549. The principles which apply in the case of dealings between solicitor and client, are also applicable to the case of a counsel em- ployed by a man as his confidential adviser ; Purcell v. Macnamara, 14 Ves. 91; McCabe v. Hussey, 2 Dow & Cl. 440; 5 Bligh. yn. n. 715; Carter v. Palmer, 8 CL & Fin. 657, 707 , Brown v. Kennedy, 33 Beav. 133; Corley v. Lord Stafford, 1D. & J. 238 ; or the case of a man who has constituted himself the legal adviser of another, Tate v. Williamson, L. R. 1 Eq. 528; L. R. 2 Chan. 65; or has offered him legal adviee in the matter, Davis v. Abraham, 5 W. R. 465; and to the case of the clerk of a solicitor who has acquired the confidence of a client of his master, Hobday v. Peters, 28 Beav. 349; Cowdry v. Day, 5 Jur. n. s, 1199; Nesbitt v. Berridge, 32 Beav. 286. (f) Lawless v. Mansfield, 1 Dr. & War. 557, 631. CONSTRUCTIVE FRAUD. 97 lation of solicitor and client, beyond the amount of just and fair professional remuneration to which he is entitled(a). 227. A solicitor is not under any incapacity to purchase from or sell to a client. He may deal with a client or purchase a client’s property even during the continuance of the rela- tion, but the burthen of the proof lies on him to show that the transaction has been perfectly fair(b). He must however be prepared to show that he gave his client the same protection as he would have given him, if dealing with a stranger, and must satisfy the court that he has'‘taken no advantage of his professional position, but has duly and honestly advised his client as an independent and disinterested adviser would have done, and has brought to his knowledge everything which he himself knew, necessary to enable him to form a judgment in the matter, and he must in particular be able to show that a just and fair price has been given(c). 228. The rule that a solicitor who deals with a client is bound to prove the fairness of the transaction applies with (a) Wood v. Downes, 18 Ves. 120 ; Rhodes v, Beauvoir, 6 Bligh, N. R. 195 ; Champion v. Rigby 9 L. J. N. S. Ch. 211; Lyddon v. Moss, 4 D. & J. 104; Proctor v. Robinson, 35 Beav. 335; Tyrell » Bank of London, 10 H. L. 26, 44. And see Strange v. Brennan, 15 L, J. Ch. 389; Pince v. Beattie, 32 L. J. Ch. 734; Gallo- way v. Corporation of London, L. R. 4 Eq. 90. @) Jones v. Roberts, 9 Beav. 419; Blagrave v. Routh, 8 D. M. & G. 621. And see Cooke v. Setree, 1 V. & B. 126; Plenderleath v. Frazer, 3V. & B. 174 ;Gibson ». Jeyes, 6 Ves. 278 ; Harris v. Tremenhere, 15 Ves. 34 ; Monteequieu ». Sandys, 18 Ves. 313; Bellew v. Russell, 1 B. & B. 104, 107 ; Edwards v. Meyrick, 2 Ha. 60; Lawless v. Mans- field, 1 Dr. & War. 557 ; Stedman v. Collett, 17 Beav. 608; Moss v. Bainbrigge, 6D. M. & G. 292; Carter v. Palmer, 8 Cl. & Fin. 657 ; Comp. Lyddon v. Moss, 4D. & J. 104. (c) Gibson v. Jeyes, 6 Ves. 277; Montesquieu v. Sandys, 18 Ves. 302; Cane v. Lord Allen, 2 Dow, 294; Morgan v. Lewis, 4 Dow. 29, 47; Molony v. Lestrange, Beat. 406, Champion +. Rigby, 9 L. J. N. 8S. Ch, 211; Uppington v. Bullen, 2 Dr. & War. 185; Edwards v. Meyrick, 2 Hare, 60; Higgins v. Joyee,23.& L. 282; Spencer » Topham, 22 Beav. 573; Holman v. Loynes, 4 D. M. & G. 270; Hesse v Briant, 6 D. M. & G. 623; Savery ». King, 5 H. L. 627; Tomson v. Judge, 3 Drew. 306; Barnard v. Hunter, 2 Jur. N. 8. 1213; Knight v. Bowyer, 2 D. & J. 421, 445; Gresley, v. Mouseley, 4 D. & J. 78; 3 D. F. & J. 433; Lyddon ». Moss, 4D. & J. 104; Morgan v. Higgins, 1 Giff. 270; Cowdry v Day, 1 Giff. 316; Pearson v. Benson, 28 Beav. 599; Marquis of Clanricarde v. Heming, 30 Beav. 175; Gibbs ». Daniell, 4 Giff. 1; Adams v. Sworder, 2 D. J. & S. 44; Rhodes v. Bate, L. R. 1 Chan. 252. A prudent man would not deal with a client without the in- tervention of another solicitor, but there is no rule that a solicitor may not take such a course, per Lord St. Leonards, Cults » Salmon, 21 L. J. N.S. Ch. 750 ; J Us li a L. T. 492. 98 EQUITY JURISPRUDENCE. peculiar force where the client is placed at a disadvantage from his being indebted to the solicitor, and gives him a security for the debt(a).: If, however, the court is satisfied that the transaction has been on the whole fair and reasonable, and that no undue advantage has been taken, it will be sup- ported, although there may have been some irregularities at- tending it(b), and a solicitor who advances money to, or has dealings with a client, must be able to prove the advance of the money by some other evidence than the instrument creat- ing the security(c). ~ 229, The rule which throws on the solicitor dealing with his client, the burthen of proving the fairness of the transac- tion, is not confined to cases where the solicitor is actually em- ployed at the time, but may extend to cases where a solicitor has in the course of his employment on a previous occasion acquired or had the means of acquiring any peculiar know- ledge as to the property(d). Asa general rule, however, it no longer applies after there has been an entire cessation of the relation(e); nor will it apply in cases where the transaction is entirely unconnected with the duty of the attorney(/).— (a) Proof v. Hines, Ca. t. Talb. 115; Walmesley 7. Booth, 2 Atk. 29 ; Drapers Co. v. Davis, 2 Atk. 295; Ward v. Hartpole, 3 Bligh, 470 ; Newman v. Payne, 2 Ves. 200 ; Cook v. Setree, 1 V. & B. 186; Daly v. Kelly, 4 Dow. 417, 430; Casborne »v. Barsham, 2 Beav. 76; Bellamy v. Sabine, 2 Ph. 425; Lawless v. Mansfield, 1 Dr. & War. 557 ; Uppington v. Bullen, 2 Dr. & War. 185 ; Edwards v. Meyrick, 2 Hare, 60; Shaw v. Neale, 20 Beav. 157; Coleman v. Mellersh, 2Mac. & G. 309. See Jones v. Thomas, 2 Y. & C. Ex. 498; Morgan». Higgins, 1 Giff. 270; Re Foster, 2D. F. & J. 110; Re Pugh, 1D. J. & S: 673. And see Davis » Hawke, 4 Gr. 394; Grantham »v. Hawke, 4 Gr. 582; McElroy v. Hawke, 5 Gr. 516. (6) Jones v. Roberts, 9 Beav. 419; Blagrave v. Routh, 8 D. M. & G. 621; See Cooke v. Setrie, 1 V. & B. 126; Plenderleath, v, Frazer, 3 V. & B. 174; Lawless v. Mansfield, 1 Dr. & War. 557 ; Stedman »v. Collett, 17 Beav. 608; Moss v. Bain- brigge, 6 D. M. & G. 292; Cheslyn v, Dalby, 2Y. & C. Ex. 170; Comp. Lyddon v. Moss, 4 D. & J. 104. And see Shaw v. Drummond, 13 Gr. 662. (c) Morgan v. Lewis, 4 Dow. 46 ; Morgan v. Evans, 3 Cl. & Fin. 195; Gresley v. Mousley, 3 D. F. & J. 483; Stainton v. Carron Co. 24 Beav. 352. (@) Holman v. Loynes, 4 D. M. & G. 270; Gibbs v. Daniel, 4 Giff. 1. See Carter v. Palmer, 8 Cl. & Fin, 657, 707. (ec) Gibson v. Jeyes, 6 Ves, 277; Wood v. Downes, 18 Ves. 120; Montesquieu v. Sandys, 18 Ves. 313; Cane » Lord Allen, 2 Dow, 289; Moss v. Bainbrigge, 6 D. M. & G. 292; See Dent ». Bennett, 4 M. & C. 269, 277; Carter v. Palmer, 8 Cl. & Fin. 657; Blagrave » Routh, 8 D. M. & G. 620. (f) See Jones 7% Thomas, 2 Y. & C. Ex. 519. CONSTRUCTIVE FRAUD. 99 230. The rule with regard to gifts by a client to his solicitor is much stricter than the rule with regard to other dealings between them. Gifts from a client to a solicitor during the existence of the relation, appear to be absolutely invalid, upon grounds of public policy; nor can a gift by a client to a soli- citor after the cessation of the relation be supported, unless the influence arising from the relation may be rationally sup- posed to have ceased also(a). 231. The relation of principal and agent, is affected by the same considerations as the preceding, founded upon the same enlightened public policy(b). There is no rule to prevent an agent from dealing with his principal in respect of the matter in which he is employed as agent(c). But agents are not per- mitted to become secret vendors or purchasers of property which they are authorized to buy or sell for their principals(d); or, by abusing their confidence, to acquire unreasonable gifts or advantages(e); or, indeed, to deal validly with their prin- cipals in any case, except where there is the most entire good faith, and a full disclosure of all facts and circumstances, and an absence of all undue influence, advantage, or imposition(/). (a) Welles v. Middleton, 1 Cox, 112; 4Bro. P. C. 245; Newman v. Payne, 2 Ves. 200; Wrightv. Proud, 13 Ves. 137; Hatch » Hatch, 9 Ves. 292 ; Wood v. Downes, 18 Ves. 120 ; Goddard v. Carlisle, 9 Price, 169; Walsh v. Studdert, 2Con. & L. 423; Tomson v. Judge, 3 Drew. 306 ; Spencer». Topham, 22 Beav. 573 ; Holman v, Loynes, 4D M. & G. 270, 283; Re Holmes’ Estate, 3 Gift. 337; Gibbs v. Daniel, 4 Giff. 1; O’Brien v. Lewis, 4 Giff. 221; Lewis v. Hillman, 3 H. L. 630. But see Oldham v, Hand, 2 Ves. Sen. 259 ; Harris v. Tremenheere, 15 Ves. 34; Hunter v. Atkins, 3M. & K. 113; Walker v. Smith, 29 Beav. 394. The same rule will not always apply to a tes- tamentary gift, in favour of a solicitor by his client, which might be applicable to such @ gift inter vivos. Hindson v. Weatherill, 5 D. M. & G. 301 (8) Benson v. Heathorn, 1 Y. & C. 326; Hugueninv. Baseley, 14 Ves. 284. (c) But see Dunbar v. Tredennick, 2 B. & B. 319; Norris x, Le Neve, 3 Atk. 38. (d) See Kimber v. Barber, L. R. 8 Chan. 56 ; (reversing s. c. 20 W. R. 602) ; Lewis v, Hillman, 3H. L. 607. (e) Woodhouse v. Meredith, 1 J. & W.'204, 222 ; Massey ». Davies, 2 Ves. 318; Crowe v. Ballard, 3 Bro. C. C. 120; Lees v. Nuttall, 1R. & M. 53 ; East India Co. v, Hench- man, 1 Ves. 289; Driscoll v. Bromley, 1 Jur. 238; Bentley v. Craven, 18 Beav. 75 ; Maturin v. Tredennick. 9 L. T. N.S. 82. And see Washburne ». Ferris, 14 Gr. 516. (f) Story, 8. 315. See Crowe v. Ballard, 3 Bro. C. C. 117 ; Purcell v. Macnamara, 14 Ves. 91; Huguenin v. Basely, 14 Ves. 273; Watt v. Grove, 2 S. & L, 492; Fos v. Mackreth, 2 Bro.C. C. 400; Coles v. Trecothick, 9 Ves. 246 ; Lowther v. Lowther, 13 Ves. 102, 103; Selsey v. Rhoades, 2S. & S. 41; Morret ». Paske, 2 Atk. 53 ; Roths- child’. Brookman, 2 Dow & Cl. 188; Barker v. Harrison, 2 Coll. 546 ; Malony »v. 100 EQUITY JURISPRUDENCE. 232. Upon these principles, if an agent sells to his principal his own property, as the property of another, without disclos- ing the fact, the bargain however fair and reasonable it may be in other respects, may be impeached at the election of the principal. So if an agent, employed to purchase for another, purchases for himself, he will be considered as the trustee of his employer(a). And a person employed as an agent, to pur- chase up a debt of his employer, cannot purchase the debt upon his own account. The same rule applies to a surety, who purchases up the debt of his principal. And, therefore, if a purchase is made of the debt, the agent or surety can entitle himself, as against his principal, to no more than he has ac- tually paid for the debt(b). 233. If the relation of principal and agent has wholly ceased, the parties are restored to their competency to deal with each other(c). But an agent who has in the course of his employ- ment, acquired some peculiar knowledge as to the property, cannot after the cessation of the relation use the knowledge so acquired for his own benefit, and to the prejudice of his former employer(d). 2 234. A gift to an agent is valid, unless the party who seeks to set it aside, can show that some advantage was taken by the agent of the relation in which he stood to the donor (e).. The rule with respect to the capacity of an agent to accept a gift from his principal, is not so strict as it isin the case of solicitor and client, trustee and cestwi que trust, and guardian Kerman, 2 Dr. & War. 31; Trevelyan v. Charter, 11 Cl. & Fin. 714, 732; Mulhallen », Marum, 3 Dr. & War. 317 ; Bloyes Trust, 1 Mac. & G., 488; Rhodes v. Bate, L. R. 1 Chan. 252; Gillett v. Peppercornc, 3 Beav. 78 ; Murphy v. O’Shea, 2 J. & I. 422 ; Clarke v. Tipping, 9 Beav. 284; Wilson v. Short, 6 Ha. 383; Hobday v. Peters, 28 Beav. 349; Tyrellv, Bank of London, 10 H. L. 26; Wentworth v. Lloyd, 32 Beav. 467. (a) Lees v. Nuttall, 1 R. & M. 53; Taylor v. Salmon, 4M. & C. 134 3 Beck w Kantorowicz, 3 K. & J. 230; Hobday v. Peters, 28 Beav. 349. (0) Reed v. Norris, 2 M. & C. 361, 374 ; Cane ». Lord Allen, 2 Dow, 294, (c) Charter v, Trevelyan, 4.1L. J. N.S, Ch. 209. See York Buildings Co. ». Mac- kenzie, 3 Pat. Sc. Ap. 379 (d) Carter v. Palmer, 8 Cl. & Fin. 657 ; Holmanv. Loynes, 4 D. M. & G. 270. (ec) Hunter v. Atkins, 3 M. & K. 113; Nicol 2. Vaughan, 1Cl. & Fin. 495, See Wysev. Lambert, 16 Ir. Ch. 379. CONSTRUCTIVE FRAUD. 101 and ward. The relation in which the parties stand to each other being of a sort less known and definite than in those other cases, the jealousy is diminished(a). 235. The rule of equity as to dealings between guardian and ward is extremely strict, and imposes a general inability on the parties todeal with each other. Courts of equity will not permit transactions between guardians and wards to stand, even when they have occurred after the minority has ceased, and the relation become thereby actually ended, if the inter- mediate period be short, unless the circumstances demonstrate, in the highest sense of the terms, the fullest deliberation on the part of the ward, and the most abundant good faith on the part of the guardian(b). For, in all such cases, the relation is still considered as having an undue influence upon the mind of the ward ; and as virtually subsisting, especially if all the duties attached to the situation have not ceased; as, if the accounts between the parties have not been fully settled, or if the estate still remains in some sort under the control of the guardian(c). The same principles are applied to persons standing in the position of quasi guardians or confidential advisers(d). 236. After the relation has entirely ceased, not merely in name but in fact, and a full and fair settlement of all transac tions growing out of the relation has been made, and sufficient time has elapsed to put the parties in a position of complete independence to each other, there is no objection to any bounty or grant conferred by the ward upon his former guar- (a) Hunter v. Atkins, 3M. & K. 113. But see Hobday v. Peters, 28 Beav. 349. (b) Everitt v. Everitt, L. R. 10 Eq. 405; Ellis v. Barker, 20 W. R. 160. (c) Story, s. 317 ; Hylton v. Hylton, 2 Ves. Sen. 547; Hatch v. Hatch, 9 Ves. 297 ; Aylward v. Kearney, 2 B. & B. 478; Dawson v. Massey, 1B. & B. 229; Wright v. Pruoud, 13 Ves. 136 ; Wedderburn v. Wedderburn, 4 M. & C. 41; Cary v. Cary, 258. & L. 173 ; Wood v. Downes, 18 Ves. 126; Revett v. Harvey, 18. &S. 502 ; O’Neil v. Hamill, Beatt. 618 ; Maitland v. Irving, 15 Sim. 437 ; Archer v. Hudson, 15 L. J. Ch. 211 ; Maitland v. Backhouse, 17 L. J. Ch. 121; Espey v. Lake, 10 Ha. 260 ;. Davies . v. Davies, 4 Giff. 417 ; Matthew v. Brise, 14 Beav. 345. And see Rhodes v. Bate, L. R. 1 Chan. 252. (d) Revett v. Harvey, 18. & 8.502 ; Beasley v. Magrath, 2S. & L. 31; Mulhallen v. Marum, 3 Dr. & War. 317 ; Allfrey v. Allfrey, 1 Mac. & G. 98; Llewellin v. Cob- bold, 1 Sm. & G. 376; Prideaux v. Lonsdale, 1 D. J. &. 8. 433. 102 EQUITY JURISPRUDENCE, dian(a). But influence will be presumed to exist unless there is distinct evidence of its termination(6). 287. The same principles govern the relation of trustee and cestut que trust. It is the duty of a trustee to use his best exer- tions for the benefit of the cestui que trust, and he must not place himself in a situation in which his interests conflict with that which his duty requires him to do(c). Any personal benefit which he may gain by availing himself of his fiduciary character must be acquired by a dereliction of duty, and will enure for the benefit of the trust estate(d). And this restraint on any personal benefit to the trustee is not confined to his dealings with the estate, but extends to remuneration for ser- vices, and prevents him from receiving anything beyond the payment of his expenses, unless there be an express stipula- tion to the contrary(e). The court looks upon trusts as hono- rary, and a burden on the honour and conscience of the party, and not as taken with mercenary motives(/). 238. There is no rule which incapacitates a trustee from dealing with the cestui que trust in respect of the trust estate. Thus a trustee for sale may purchase the trust estate if the cestui que trust fully and clearly understands with whom he is (2) Hylton v. Hylton, 2 Ves. Sen. 547, 549, See Beasley v. Magrath, 2S. & L. 35; Ross z. Steele, 1 Ir. Eq. 171. (b) Rhodes v. Bate, L. R. 1 Chan. 252. And seé Archer v. Hudson, 15 L. J. Ch, 211. (ce) City of Toronto v. Bowes, 4 Gr. 489; 6 Gr. 1. (d) Holt». Holt, 1Ch. Ca. 190 ; Hx parte Lacey, 6 Ves. 625 ; Ex parte James, 8 Ves. 337, 344; Dalbiac v. Dalbiac, 16 Ves. 123; Forbes v. Ross, 2 Cox, 116; Hamilton v. , Wright, 9 Cl. &Fin. 111; Broughton v. Broughton, 5 D M. & G. 164; Vaughton v. Noble, 30 Beav. 34; Crosskill v. Bower, 32 Beav. 86; Graham v. Yeomans, 18 Gr. 238 ; Hewson v. Smith, 17 Gr. 407 ; Foster v. McKinnon, 5 Gr. 510; Lamont v. La- mont, 7 Gr. 258 ; and see Keech v. Sandford, 1 W. & T. L. C. 40. (e) Robinson v. Pett, 3 P. W. 249; Moore », Frowd, 3M & C. 46; Bainbrigge v. Blair, 8 Beay. 588 ; Broughton v. Broughton, 5 D. M. & G. 160; Harbin v. Darby, 28 Beav. 325 ; Crosskill v. Bower, 32 Beav. 86; Barrett v. Hartley, L. R. 2 Eq. 789. The Con. Stat. U. C. v. 16,5, 66, has varied the rule as to compensation to trustees only so far as it applies to trustees under wills, Wilson v. Proudfoot, 15 Gr. 109 ; Deedes v, Graham, 20 Gr. 258. By an Act of the Ontario Legislature, passed in 1874, the term ‘‘ trustee” is to include any trustee under a deed, settlement or will, and execu- tors and administrators, and any guardian appointed by any court, and a testamentary guardian, or any other trustee, howsoever the trust is created. (f) Ayliffe v. Murray, 2 Atk. 59. CONSTRUCTIVE FRAUD, 103 dealing, and does not object to the transaction, and the trustee » fairly and honestly discloses all that he knows respecting the property, and gives a just and fair price, and does not seek to secure surreptiously any advantage for himself(a). If there be any secret or underhand dealing on the part of the trustee the transaction becomes impeachable, and the transaction can- not be supported, however fair it may be in other respects, if the cestui que trust does not clearly and distinctly understand that he is dealing with the trustee. Where a trustee deals with his cestut que trust for the conveyance to himself of any portion of the trust property, it rests with the trustee to show that everything in connection with the transfer was fair and just(d). 239. A trustee cannot under any circumstances, deal with himself on behalf of the cestui que trust surreptitiously and with- out his knowledge and assent. That the terms on which he attempts to deal with the estate are as good as can be obtained from any other quarter, and that he himself takes no advan- tage from the bargain is immaterial(c). The terms may even be better, but the rule is so inflexible, that no enquiry can be made as to the fairness or unfairness of the transaction. It is enough that the act tends to interfere with the duty of pro- tecting the trust estate, which he has undertaken to perform. 240. This principle applies alike, whether the transaction relates to real estate or personalty, or mercantile matters, for the disability arises, not from the subject matter, but from the obligation lying on the trustee to do his uttermost for the cestut (a) Ayliffe v. Murray, 2 Atk. 59; Clarke v. Swaile, 2 Ed. 134; Ex parte Lacey, 6 Ves. 626; Ex parte James, 8 Ves. 337; Coles v. Trecothick, 9 Ves. 246; Ex parte Bennett, 10 Ves. 381 ; Randall v. Errington, 10 Ves. 422; Morse v. Royal, 12 Ves. 355 ; Downes v. Glazebrook, 3 Mer. 208; Knight v. Marjoribanks, 2Mac. & G. 10; Re McKenna, 13 Ir. Ch. 329 ; Luff v. Lord, 11 Jur. N. 8. 50; Dover v, Buck, 11 Jur.N. 8. 580. And see King »v. Keating, 12 Gr. 29; Baldwin v. Thomas, 15 Gr. 119; Gilpin v. West, 18 Gr. 228. (6) Blain v. Terryberry, 11 Gr. 286. (©) Patterson v. Holland, 7 Gr. 1. 104 EQUITY JURISPRUDENCE. que trust(c). And it makes no difference that the sale was by public auction(d); or that the purchase was made through another person(e), or from a co-trustee(/), or that the trustee purchased as agent for another person(g). 241. The application of the principle is, however, limited to dealings with the trust estate(h), and it does not operate after the relation of trustee and cestui que trust is clearly dissolved. But a trustee cannot, after the determination of the relation, be allowed to avail himself for his own benefit, and to the prejudice of the party for whom he had been trustee, of any information which he may have acquired during the existence of the relation(z). 242. Where the cestuis que trust, after they come of age, or in any other mode competent to release the previous defaults of the trustees, do any act which would ordinarily have that effect, between other parties, it will not be so regarded, unless the trustees had fully informed the cestuis que trust of their rights, or they acted under full knowledge of the liability of the trustees(7). But where the cestui que trust, knowing all (a) Fox v. Mackreth, 2 Bro. C. C. 400; 4 Bro. P. C. 258; Randall v. Errington, 10 Ves. 423 ; Attorney-General v. Earl of Clarendon, 17 Ves. 500; Gregory v. Gregory, Coop. t. Eldon, 201; Woodhouse v. Meredith,1 J. & W. 222 ; Baker v. Carter, 1 Y. & C. Ex. 250; Grover v. Hugell, 3 Russ. 428; Bailey v. Watkins, cit. 6 Bligh, N. R. 275 ; Re Bloye’s Trust, 1 Mac. & G. 490; Lewis v. Hillman, 3 H. 1. 607; Knight v. Marjoribanks, 2 Mac. & G. 12; Hamilton v. Wright, 9 Cl. & Fin. 111; Ingle ». Richards, 6 Jur. N. S. 1178; Popham v. Exham, 10 Ir. Ch. 440; Aberdeen Rail Co. v. Blakie, 1 Macq, 461; Parkinson v. Hanbury, 2D. J,&8.450; Ridley v. Rid- ley, 34 L. J. Ch. 462; Franks v. Bollans, 37 L. J. Ch. 155. (6) Campbell v. Walker, 5 Ves. 678; Ex parte James, 8 Ves. 348; Exparte Bennett, 10 Ves. 393; Sanderson v, Walker, 13 Ves. 602; York Building Co. v. McKenzie, 8 Bro. P. C. 42; Downes v. Glazebrook, 3 Mer. 207; Grover v. Hugell, 3 Russ. 428; Lawrence v. Galsworthy, 3 Jur. N. 8. 1049; Adams v. Sworder, 2D. J. & S. 44. (ce) Sanderson v. Walker, 13 Ves. 602; Adams v. Sworder, 2D. J. & S. 44. (d) Hall v. Noyes, cit. 3 Ves. 748; 3 Bro. C. C. 483; Whichcote v. Lawrence, 3 Ves. 740. (e) Ex parte Bennet, 10 Ves. 381, 400; Gregory v. Gregory, Coop. t. Eldon, 201; Ex parte Gryls, 2 Dea. & Ch. 290. (f) Knight v. Marjoribanks, 2 Mac. & G. 12. (¢) Ex pavte Lacey, 6 Ves. 627 ; Coles v. Trecothick, 9 Ves. 246 ; Ex parte Bennett, 10 Ves. 394; Morse v. Royal, 12 Ves. 373. See Hamilton v. Wright ; 9 Cl. & Fin. 1113 Holman v. Loynes, 4D. M. & G, 270. . (hk) Burrows v. Walls, 5 D.M. & G. 233. See also Lloyd v. Atwood, 3 D. & J. 614. And see Edinburgh Life Assurance Co. v: Allen, 18 Gr. 425. CONSTRUCTIVE FRAUD. 105 the facts, has for a long time acquiesced in an improper invest- ment of the fund, the trustees will not be made chargeable with any unexpected loss subsequently occurring(a). 243, The principles affecting dealings between a trustee and his cestui que trust extend to other persons invested with a like fiduciary character(b), such as executors and administra- tors(c), assignees of a bankrupt or insolvent(d), receivers(e), committees of lunatics(/), directors of a railway or other com- pany(g), arbitrators(h), a member of a corporation taking a lease of corporate property(i), and many other cases(j). In general the disability extends to all persons who, being em- ployed or concerned in the affairs of another, acquire a know- ledge of his property (k).. . 244, The principle does not, however, apply to the case of a mortgagee dealing with the mortgagor(/), nor to the case of (a) Story, s. 322 a; Griffiths v. Porter, 25 Beav. 236; Liddell v..Norton, 21 Beav. 183. (6) Kerr on Frauds, 112. (c) Hall v. Hallett, 1 Cox 134; Killick v. Flexney, 4 Bro. C. C. 161; Watson v. Toone, 6 Mad. 153; Baker v. Carter, 1. Y & C. Ex. 250; Grovesv. Perkins, 6 Sim.576 ; Pickering v. Pickering, 2 Beav. 31; Wedderburn v. Wedderburn, 4 M. & C. 41; Barton v. Hassard, 3 Dr. & War. 461; Allfrey v. Allfrey, 1 Mac. & G. 87; Smedley v. Varley, 23 Beav, 359; Prideaux v. Londsale, 1 D. J. & S. 433. (d) Ex parte Reynolds, 5 Ves. 707; Ex parte Hughes, 6 Ves. 617; Ex parte Lacey, 6 Ves. 625; Ex parte James, 8 Ves. 337 ; Ex parte Bennett, 10 Ves. 381; Re Browne, 7Ir. Ch. 274; Pooley v. Quilter, 2D. & J. 327. And see Adams v. Sworder, 2 D. J. & 8. 44, > (e) Alven v. Bond, 1 Fl. & K. 196; Eyre v. McDonnell, 15 Ir. Ch. 534; Boddington v. Langford, 15 Ir. Ch. 558. (f) Wright v. Proud, 13 Ves. 136. (9) Benson v. Heathorn, 1 Y. & C. 326; York and North Midland Rail. Co. v, Hudson, 16 Beav. 485; Great Luxemberg Rail. Co. v. Magnay, 25 Beav. 587 ; Gas- kell ». Chambers, 26 Beav. 360; Aberdeen Rail. Co. v. Blakie, 1 Macq. 461; Hx parte Hill; 32 L. J. Ch. 154 ; Spackman’s case, 34 L. J. Ch. 321; Patterson v. Holland, 7 Gr. 1; City of Toronto v. Bowes, 4 Gr. 489; 6 Gr. 1. (h) Blennerhasset v. Day, 2B & B. 116. (i) Att.-Gen. v. Corporation of Cashel, 3 Dr. & War. 294. (3) See Ex parte Morgan, 12 Ves. 6; Grover v. Hugell, 3 Russ. 428; Greenlaw v. King, 3 Beav. 49; Beaden v. King, 9 Hare. 499 ; Dimes v. Proprietor of Grand Junc- tion Rail. Co., 3 H. L. 759; Denton v. Donner, 23 Beav. 285. (k) Sug. V. & P. (14th ed. ) 687. () Knight v. Marjoribanks, 2 Mac. & G. 10; Dobson v. Land, 8 Ha. 220; but comp. Hickes v. Cooke, 4 Dow, 16; Downes v. Glazebrook, 3 Mer. 200; Re Bloye’s Trust, 1 Mac. & G. 490; Robertson v. Norris, 1 Giff. 421; Ford v. Olden, L. R.3 Eq. 461. 106 EQUITY JURISPRUDENCE. a puisne mortgagee buying the mortgaged property from a prior mortgagee under the exercise of his power of sale(a) ; nor to the case of a tenant for life purchasing from trustees for sale under a power to be exercised with his consent(), nor to the case of a mortgagor with power to sell or lease, selling or leasing, to a trustee for himself(c) ; nor does it apply to the case of merely nominal trustees, such as trustees who have disclaimed(d). 245. The case of principal and surety may be briefly referred to as a striking illustration of this doctrine. The contract of surety imports entire good faith and confidence between the parties in regard to the whole transaction. If the creditor be specially communicated with, any concealment of material facts, or any express or implied misrepresentation of such facts, or any undue advantage taken of the surety by the cre- ditor, either by surprise, or by withholding proper informa- tion, will undoubtedly furnish a sufficient ground to invali- date the contract(e). Upon the same ground, the creditor is, in all subsequent transactions with the debtor, bound to equal good faith to the surety(f). Ifany stipulations, therefore, are made between the creditor and the debtor, which are not com- muuicated to the surety, and are inconsistent with the terms of his contract, or are prejudicial to his interests therein, they will operate as a virtual discharge of the surety from the ob- ligation of his contract(g). And, on the other hand, if any stipulations for additional security, or other advantages, are (a) Shaw v. Bunny, 2 D. J. & S. 468; Kirkwood v. Thompson, 2D. J.& S. 613. The solicitor of the mortgagee cannot purchase, Howard v. Harding, 18 Gr. 181; and see Ellis v. Dellabough, 15 Gr. 583, where the purchase was made by the solicitor’s clerk, who conveyed to the mortgagee. (b) Howard v. Ducane, T. & R. -81. (c) Beavan v. Habgood, 1 J. & H. 222, (d) Stacey v. Elph, 1 M. & K. 195; Chambers v. Waters, 3 Sim. 42, And see Parkes v. White, 11 Ves. 209, 226. (e) Owen v, Homan, 3 Mac. & G. 378; Blest v. Brown, 8 Jur. N.S. 602; Green- field », Edwards, 2D. J. & S. 582, 598. But see Cunningham v. Buchanan, 10 Gr. 523. (f) See Cecil v. Plaistow, 1 Anstr. 202; Leicester v. Rose, 4 East 372; Pidcock v. Bishop, 3 B. & C. 605; Smith » Bank of Scotland, 1 Dow, 272. (g) Bonar v. Macdonald, 3 H. L. 226; Nisbet v. Smith, 2 Bro. C. C. 583. CONSTRUCTIVE FRAUD. 107 obtained between the creditor and the debtor, the surety is: entitled to the fullest benefit of them(a). 246. But where an official bond is given for faithful adminis- tration, nominally to one of the officers of court, but in fact for the security of parties interested in the discharge of the official. duty thereby insured, it was held that the surety on such bond is not discharged by the neglect of those interested to exercise that supervision over the official conduct of the prin- cipal which it was, by statute, made their duty to do. In order to have that effect, it would seem that the negligence must amount to a virtual connivance at the official delinquency ; or must be so gross as to be equivalent toa wilful shutting of the: eyes to the fraud about to be committed(). 247. It may now be regarded as settled that there must be something which amounts to fraud to enable the surety to say that he is released from his contract on account of misrepre- sentation or concealment(f). Butin regard to his being released by the surrender of securities held by the creditor, there is no difference whether they existed at the date of the suretyship or not(d). 248. It is upon this ground, that ifa creditor, without any communication with the surety, and assent on his part, should afterwards enter into any new contract with the principal, inconsistent with the former contract, or should stipulate, in a binding manner, upon a sufficient consideration, for further delay and postponement of the day of payment of the debt, that will operate in equity as a discharge of the surety(e). (a) Story, s. 324; Mayhew ». Crickett, 2 Swanst. 186, 191, note (a); Boultbee v. Stubbs, 18 Ves, 23; #x parte Rushforth, 10 Ves. 409, 421. And see Clarke v. Ritchey, 11 Gr. 499. (b) Story, s. 325a, And see Corporation of East Zorra, v. Douglas, 17 Gr. 462 ; Peers v. Oxford, 17 Gr. 472 ; County of Frontenac v. Breden, 17 Gr. 645. (c) North British Insurance Co. ». Lloyd, 10 Ex. 529; Wythes ». Labouchere, 3D. & J. 593; Corporation of East Zorra v. Douglas, 17 Gr. 466 ; Peers v. Oxford, 17 Gr. 472. . ; (d) Story s. 325a; Pledge v. Buss, 6 Jur. N. 8. 696. The case of Newton ». Chorl- ton, 10 Ha. 646, is treated as overruled. (e) Skip. v. Huey, 3 Atk. 91: Boultbee v. Stubbs, 18 Ves. 20; Ex parte Gifford, 6 Ves. 805 ; Rees ». Berrington, 2 Ves. 540 ; Blake v. White, 1 Y. & C. Ex. 420. See Gordon ». Calvert, 2 Sim. 253 ; 4 Russ. 581 ; Bonser v. Cox, 6 Beav. 110. 108 EQUITY JURISPRUDENCE. But it is not every alteration of his position by the act of the creditor, which will discharge the surety. To have this effect, the alteration must be such as interferes for a time with his remedies against the principal debtor(a). 249. A surety cannot take proceedingsto compel the creditor to proceed against the debtor, for at any moment after the debt becomes payable, he may himself pay it off, and proceed against the debtor for themoney so paid(b). But on the other hand a surety has aright to compel the debtor to pay the debt when due, whether the surety has actually been sued on it or not(c). But this right arises only where the creditor has a right to sue his debtor, and refuses to exercise that right(d). Where the surety pays the debt on behalf of the principal debtor, the rule whether at law(e) or in equity is, that he has a right to call upon such debtor for reimbursement(/). 250. On payment of the debt a surety is entitled to all the securities which the creditor has against the principal; whe- ther such collateral securities were given at the time of the contract of suretyship, with or without the knowledge of the surety(g); or whether they were given after that contract, with or without the knowledge of the principal(h). If a cre- ditor therefore, who has had, or ought to have had, such collateral securities, loses them, or suffers them to get back into the possession of the debtor, or does not make them effectual by giving proper notice(7), the surety to the extent of such security will be discharged(j). This general rule did not (a) Story s. 326 ; Tucker v. Laing, 2K. & J. 745. And see Duff v. Barrett, 15 Gr. 632 ; 17 Gr. 187. “(b) Wright v. Simpson, 6 Ves. 733. Butsee Bailey v. Edwards, 12 W. R. 337. (c) Ranelaugh v. Hayes, 1 Vern. 189; Antrobus v. Davidson, 3 Mer. 569. (ad) Padwick v. Stanley, 9 Hare, 627. Butsee Cunningham». Lyster, 13 Gr. 575. (e) Toussaint v. Martinnant, 2 T. R. 105. (f) Craythorne v. Swinbourne, 14 Ves. 162. Bnt see Geary v. Gore Bank, 5 Gr. 536.. As to costs of proceedings against the surety, see Whitehouse v. Glass, 7 Gr. 45.. (g) Mayhew »v. Crickett, 2 Swanst. 185. _ (h) Pearl v. Deacon, 24 Beav. 186; 1D. & J. 461; Lake v. Bruton, 18 Beav. 34; 8D. M. & G. 440; Pledge v. Buss, John. 663, 668. (i) Strange v. Fooks, 4 Giff. 408. (j) Capel v. Butler, 2S. & S. 457; Lawv. Hast India Co. 4 Ves. 824; Wataon v. Allcock, 1 Sm. & Giff. 319; 4 D. M. & G. 242. a CONSTRUCTIVE FRAUD. 109 apply to securities which upon payment got back to the prin- cipal debtor, and were in fact, extinguished by the payment (a). Buta surety is now, by statute, entitled to have assigned to him every judgment, specialty, or security which shall be held by the creditor in respect of such debt ; whether such judgment or debt shall or shall not at law be deemed to have been satisfied by the payment of the debt(b). 251. If a creditor, without the consent of the surety, gives time to the principal debtor, by so doing he discharges the surety ; that is, if time is given by virtue of positive contract between the creditor and principal debtor, not where the creditor is merely inactive(c). It seems, however, that a surety will not be discharged by giving time, if his remedies against the principal are not diminished or affected, and espe- cially if they are accelerated(d). And where the creditor, on making the arrangement with the debtor to give time, or otherwise vary the strict enforcement of the contract, reserves his right against the surety, although without communicating this fact to him, it will not operate as a release of the surety(e). 252. Contractsof suretyship limited by timeare usually con- strued strictly, and not extended beyond the period fixed, even when the creditors and the principal extend the same relation. Thus, where two bankers carried on business under articles of partnership, providing that if, at the end of five years, the term fixed, either partner should wish to carry on the business, and should not take the share of the other ata valuation, the assets should be realized and. debts paid, and the surplus divided ; and one of the parties had procured a (a) Copis v. Middleton, 1 T. & R. 229; Hodgson v. Shaw, 3 M. & K, 190, /b) 26 Vic. c. 45, 8. 2. (c) Samuell v. Howarth, 3 Mer. 279; Wright v. Simpson, 6 Ves. 732; Rees v. Berrington, 2 Ves. 540; Bailey v. Edwards, 4 B. & S. 771; Davies v. Stainbank, 6 D. M. & G. 679 ; Vankoughnet v. Mills, 5 Gr. 653. (d) Hulme v. Coles, 2 Sim. 12; Prendergast ». Devey, 6 Mad, 124; Price v. Ed- munds, 10 B. & C. 578. (e) Boultbee v. Stubbs, 18 Ves. 26; Webb v. Hewitt, 3 K. & J. 442; Wyke »v. Rogers, 1 D. M. & G. 408; Green v, Wynn, L. R. 7 Eq. 28; Wood v. Brett, 9 Gr. 452 ; Bell ». Manning, 11 Gr. 142. And see Bank of Montreal, v. McFaul, 17 Gr. 234 ; Cumming v. Bank of Montreal, 15 Gr. 686. 110 EQUITY JURISPRUDENCE. surety to indemnify the other against all loss in respect of the partnership, the business of the bank having been continued by the firm more than a year after the expiration of the five years, it was held that surety was thereby discharged ; and ‘that, whether these facts would constitute a defence at law or not, a court of equity would restrain the obligee from proceed- ing in such an action(a). ao 253. Much that has been already stated as to unconscion- able advantages, overreaching, imposition, undue influ- ence, and fiduciary situations, may well be applied to the third ‘class of constructive frauds, combining, in some degree, the ingredients of the others, but prohibited mainly, because they ‘unconscientiously compromit, or injuriously affect, the private rights, interests, or duties of the parties themselves, or operate substantially as frauds’upon the private rights, interests, duties, or intentions of third persons. 254. To this class may be referred many of the cases arising under the Statute of Frauds(b), which requires certain con- tracts to be in writing, in order to give them validity. In the construction of that statute, a general principle has been adopted, that, as it is designed as a protection against fraud, it shall never be allowed to be set up as a protection and sup- port of fraud. Hence, in a variety of cases, where from fraud imposition, or mistake, a contract of this sort has not been re- duced to writing, but has been suffered to rest in confidence or in parol communications between the parties, courts of equity will enforce it against the party, guilty of a breach of confidence, who attempts to shelter himself behind the provi- sions of the statute(c). 255. The proper jurisdiction of courts of equity is to take every one’s act according to conscience, and not to suffer un- (a) Story, s. 327a; Small v. Currie, 5 D. M. & G. 141. See also Watson v. Allcock, 4D. M. &G. 242; Bonar v. Macdonald, 3H, L. 226; Railton ». Mathews, 10 Cl. & | Fin. 934. (6) 29 Charles IT. ch. 3, s. 1, 4. (c) Story, s. 330; Montacute v Maxwell, 1P. W. 619; Att.-Gen. ». Sitwell, 1 Y¥ & C. Ex. 559 ; Lincoln v. Wright, 4D. & J. 16. — GUNSTRUCTIVE FRAUD. 111 due advantage to be taken of the strict forms of law, or of positive rules(a). Hence it is, that, even if there be no proof of fraud or imposition, yet, if upon the whole circumstances, the contract appears to be grossly against conscience, or grossly unreasonable and oppressive, courts of equity will sometimes interfere and grant relief(b); although they cer- tainly are very cautious of interfering, unless upon very strong circumstances. Bnt the mere fact that the bargain is a very hard or unreasonable one, is not, generally, sufficient, per se, to induce these courts to interfere(c). ' 256. Common sailors being a class of men who seem to have mixed up in their character qualities of very opposite natures, haying at the same time great generosity, credulity, extrava- gance, heedlessness, and bravery, and who seem, from their habits, to require guardianship during the whole course of their lives, courts of equity take an indulgent consideration of their interests. Their contracts respecting wages and prize- money are watched with great jealousy, and are generally re- lievable whenever any inequality appears in the bargain, or any undue advantage has been taken(d). 257. But the great class of cases, in which relief is granted, under this head, is where the contract or other act is substan- tially a fraud upon the rights, interests, duties, or intentions of third persons. And, here, the general rule is, that particular persons, in contracts, and other acts, shall not only transact bona fide between themselves, but shall not transact mala fide in respect to other persons, who stand in such a relation to either, as to be affected by the contract or the consequences of (a) Chesterfield v, Jansen, 2 Ves. Sen. 187. (8) Nott v. Hill, 1 Vern. 167,; 2 Vern. 26; Berny v. Pitt, 2 Vern. 14; Chester- field v. Jansen, 2 Ves. Sen. 145, 148, 154, 155, 158; Twistleton v.Griffith, 1 P.W. 310; Colev. Gibbons, 3P.W. 290; Bowes v. Heaps, 3V: & B. 117; Gwynne v: Heaton, 1 Bro. C:C. 1; Collins v. Hare, 2 Bligh N. R. 106 ; Goodhue v. Widdifield, 8 Gr: 531 ; Teeter v. St. John, 10 Gr. 85, But see Ormes v. Beadel, 2 Giff. 166. (c) Story, ».331; Willis ». Jernegan, 2 Atk. 251, 252; Proof v. Hines, Cas. t. Talb. 111; Ramsbottom v. Parker, 6 Mad. 5; Freeman v. Bishop, 2 Atk. 39. (d) Sir Thomas Clarke, in How. Weldon, 2 Ves. Sen. 516, 518 ; Taylour v. Roch- ford, 2 Ves. Sen. 281; Baldwin v. Rochfort, 1 Wills. 229; The Juliana, 2 Dod, Adm. 504. But see Chesterfield v. Jansen, 2 V es. Sen. 137 ; Griffithy. Spratley, 1 Cox 383. 112 EQUITY JURISPRUDENCE. it(a). And, as the rest of mankind, besides the parties con- tracting, are concerned, the ruleis properly|said to be governed by public utility(0). 258, Bargains with heirs, reversioners, and expectants, dur- ing the life of their parents or other ancestors are not regarded favourably in equity. 259. In all cases of this sort, it was formerly incumbent up- on the party dealing with the heir, or expectant, or reversioner, to establish, not merely that there was no fraud, but that a fair and adequate consideration had been paid(c). Inadequacy of price was sufficient to set aside the contract(d). But since the Ont. Stat. 31 Vic. c. 27, where the purchase made before the passing of the Act of any reversionary interest in real or personal estate is impeached on the ground of under value, the onus of proving such under value is to rest on the plaintiff, and no purchase made after the passing of the Act, bona fide, and without fraud, of any such interest is to be opened or set aside on the ground of under value(e). 260. In some instances the sale of reversionary interests has been supported on the ground of being part of a family arrangement, but it must clearly appear to be of that character to justify such a result, and knowledge by the father or other person standing in loco parentis of the transaction, does not (a) Per Lord Hardwicke, in Chesterfield v, Jansen, 2 Ves. Sen. 156. (b) Story, s. 333 ; Chesterfield v. Jansen, 2 Ves. Sen. 156; 1 Eq. Abr. 90. (c) Earl of Aldborough v. Frye, 7 Cl. & Fin. 436; Gwynne v. Heaton, 1 Bro. C. C. 1; Bowes v. Heaps, 3 V. & B. 117 ; Peacock v. Evans, 16 Ves. 512. See Davis v. Duke of Marlborough, 2 Swanst. 147, 148, note; Twistleton v. Griffith, 1 P. W. 310; Cole v. Gibbons. 3 P. W. 293; Baugh w. Price, 1 Wils. 320; Bar- nardiston v- Lingood, 2 Atk. 135, 136; Walmesley v. Booth, 2 A tk. 27, 2. (d) Peacock v. Evans, 16 Ves. 512, 514; Gowland v. De Faria, 17 Ves. 20; Bernal v. Donegal, 1 Bligh, x.R. 594; Hincksman, v Smith, 3 Russ. 433; Earl of Aldborough »v. Frye, 7 Cl. & Fin. 436 ; Edwards v. Browne, 2 Coll. 100 ; Boothby ». Boothby, 15 Beav. 212; St. Albyn v. Harding, 27 Beav. 11; Salter v. Bradshaw, 5 Jur. v.s. 831; Bromley v Smith, 5 Jur. n.s. 833; Foster v. Roberts, 29 Beav. 467; Jones v. Rickett, 31 Beav. 130: Perfect v. Lane, 30 Beav. 197; Nesbitt v. Berridge, 32 Beav. 282; Clark v. Malpas, 31 Beav. 80; Baker v7 Monk, 33 Beav. 419; Douglas v. Culverwell, 3 Giff. 251 ;, Morey v. Totten, 6 Gr. 176. (e) See Imp. Act, 31 Vic. v. 4. CONSTRUCTIVE FRAUD. 113 necessarily make that valid, which would be otherwise inva- lid( a). 261. The principle that courts of equity will discourage dealings with expectant heirs, and others entitled to estates in expectancy, either by way of the purchase or mortgage of such estates, has nothing to do with family settlements made by persons in such circumstances, for the support of the wife or children of such persons. But a contract of the latter cha- racter, or any other reasonable and commendable family ar- rangement as to the settlement of property, is rather favoured by courts of equity(b 262. It is upon similar principles that post obit bonds and other securities of a like nature, are set aside, when made by heirs and expectants. A post obit bond is an agreement, on . the receipt of money by the obligor, to pay a sum, exceeding the sums received and the ordinary rate of interest(c), upon the death of the person from whom the obligor has some ex- pectations, if he should survive him(d). If in other respects these contracts are perfectly fair, courts of equity will permit: them to have effect, as securities for the sum to which ex wquo et bono the lender is entitled; for he who seeks equity, must do equity(e). 263. Where tradesmen and others have sold goods to young (a) Talbot v. Staniforth,1J. & H. 484; 8 Jur. N.S. 757; Jenner v, Jenner, 2D. F.& J. 359. See Firmin v. Pulham, 2D. & Sm. 99; Willoughby v. Brideoke, 13 W. , R. 515. (b) Story, s. 337 ¢; Shafto v. Adams, 4 Giff. 492. But see Greenwood », Greenwood 2D. J. & 8.28; Bolitho v. Hillyar, 11 Jur N S. 556 ; Godfray v. Godfray, 12 Jur. N. §. 397. (c) Miller v. Cook, L. R. 10 Eq. 641; Tyler v, Yates, L. R. 11 Eq: 265 ; 6 Chan. 665. (d) Chesterfield v. Jansen, 2 Ves. Sen. 157; 1 Atk. 352 ; Fox v. Wright, 6 Mad. 111; Wharton v. May, 5 Ves. 27; Curling v. Townshend, 19 Ves. 628 ; Earl of Ald- borough v. Frye, 7 Cl. & Fin. 436. And see Beckley v. Newland, 2 P. W. 182; Wethered v. Wethered, 2 Sim. 183; Harwood v. Tooke, 2 Sim. 192; Hyde v. White, 5 Sim. 524. fe) Story, ss. 342, 344 ; Curling «. Townsend, 19 Ves. 628; Bernal v. Donegal, 3 Dow, 133 ; Wharton v. May, 5 Ves. 27; Crowe v. Ballard, 3 Bro. C. C.120 ; Gwynne »v. Heaton, 1 Bro. C. C. 1. 9; Davis v. Duke of Marlborough, 2 Swanst. 174 ; Earl of Aldborough v. Frye, 7 Cl. & Fin. 436, 462, 464. 8 114 EQUITY JURISPRUDENCE. and expectant heirs at extravagant prices, and under circum- stances demonstrating imposition or undue advantage, or an intention to connive at secret extravagance, and profuse ex- penditure, unknown to their parents or guardians, courts of equity have reduced the securities, and cut down the claims to their reasonable and just amount(a). 264. Another class of constructive frauds upon the rights, interests, or duties of third persons, embraces all those agree- ments and other acts of parties, which operate directly or virtually to delay, defraud, or deceivecreditors. Even at com- mon law such transactions are void(b), and the legislature, for the purpose of carrying the principles of the common law into effect more fully, declared by the 50 Edw. 3, c. 6, & 3 Hen. 7. c. 4, all fraudulent gifts of goods and chattels in trust for the donor and to defraud creditors to be void, and by 18 Eliz. c. 5, all pifts, grants and conveyances of goods and chattels, or land, made with an intent to hinder, delay, or defraud credi- tors were rendered void as against the person to whom such frauds would be prejudicial(c). 265. This statute does not declare voluntary conveyances to be void, but only declares all fraudulent’ conveyances to be so (d). Whether a conveyance is fraudulent or not, depends upon its being made “ upon good consideration and bona fide.” It is not sufficient that it be upon good consideration or bona fide. It must be both; even though made upon good consi- deration within the meaning of the statute, unless it is bona (a) Story, s. 348 ; Bill ». Price, 1 Vern. 467, and note [1]; Lamplugh v. Smith, 2 Vern. 77 ; Whitley v. Price, 2 Vern. 78 ; Brooke v. Gally, 2 Atk. 34, 35, 36; Free- man v. Bishop, 2 Atk. 39, But see Barney v, Beak, 2 Ch. Cas. 136 ; Gwynne » Heaton, 1 Bro. C. C. 9, 10. . (b) Cadogan v. Kennett, Cowp. 432 ; Copis ». Middleton, 2 Mad. 428 ; Barton » Vanheythusen, 11 Ha. 132. (c) Tarleton v. Liddell, 17 Q. B. 391. For relief against judgments obtained by fraud see Douglass *. Ward, 11 Gr. 39 ; McDonald v. Boice, 12 Gr. 48 ; Bank of Montreal v. Baker, 6 Gr. 346. (ad) Russell v. Hammond, 1 Atk. 13; Doe v. Routledge, Bice 708 ; Cadogan ». Kennett, Cowp. 432, 434; Holloway v, Millard, 1 Mad. 414 ; Gale v. Williamson, 8M. & W. 405. CONSTRUCTIVE FRAUD. 115 fide also, it is void against creditors(a). The expression “good consideration” in the statute, means valuable consideration. Meritorious consideration, such as love, affection, &c., though good as between the parties themselves is not considered by the law bona fide, if inconsistent with that good faith which is due to creditors(b). Voluntary conveyances are binding as be- tween the parties themselves, and all persons claiming under them, in privity of estate(c), but in so far as they have the effect of delaying, defrauding, or deceiving creditors, they are not bona fide, and are void as against creditors to the extent to which it may be necessary to deal with the property for their satisfaction. To this extent, and to this extent only, they will be treated as if they had not been made; for every other pur- pose they are good(d). , 266. To support a settlement against creditors, it is not enough that it be made for valuable consideration ; it must also be bona fide There may be in the strictest sense a valu- able or even an adequate consideration, and it may be made bona fide to pass the property, yet if the settlement or convey- ance be made with intent to delay, hinder, or defraud creditors, it is void as against them(e). (a) Twynne’s case, 3 Rep. 81; Bott v. Smith, 21 Beav, 516; Harman v. Rickards, 18 Hare, 81; Thompson v. Webster, 4 Drew. 628 ; 7 Jur. N. 8. 531; Lloyd v. Att- wood, 3D. & J. 655; Fraser v. Thompson, 4 D. & J. 600; Corbett v. Radcliffe, 14 Moo. P. C. 547 ; Wood v. Irwin, 16 Gr. 398. And see Totten v. Douglass, 15 Gr. 126. (b) Copis v. Middleton, 2 Mad. 430 ; Taylor v. Jones, 2 Atk. 600 ; Strong v- Strong, 18 Beav. 408; Goldsmith v. Russell, 5D. M. & G. 547. And see Irwin v. Freeman, 18 Gr. 465; Goodwin v. Williams, 5 Gr. 539. (c) Petre v. Epinasse, 2 M: & K. 496; Bill v. Cureton, 2 M. & K. 503; French v. French, 6 D. M. & G. 65 ; Longeway v. Mitchell, 17 Gr. 194. (da) Curtis v. Price, 13 Ves. 103; Worsley s. De Mattos, 1 Burr. 474 ; Bott v. Smith 21 Beav. 516 ; Croker v. Martin, 1 Bligh, N. 8. 573; French v. French, 6 D, M. & G. 95; Neale v. Day, 28 L. J. Ch. 45. And see Wakefield v. Gibson, 1 Giff. 401 Murphy v. Abraham, 15 Ir.’Ch. 137 ; Shaw v. Jeffrey, 13 Moo. P. oc. 432. A deed which, appears to be voluntary may be shown by any evidence, consistent with its terms, to have been made for valuable consideration. Post v. Todhunter, 2 Coll. 76; Gale v. Williamson, 8M. & W. 405; Kelson v. Kelson, 10 Hare, 385; Townend v. Toker, L. R. 1 Chan. 446. , (e) Twynne’s case, 3 Rep. 81; Holmes v. Penney, 3 K. & J.99; Worsley v. De Mattos, 1 Burr. 474 ; Cadogan v. Kennett, Cowp. 434 ; Harman v. Richards, 10 Hare, 81. And see Mulholland v. Williamson, 12 Gr. 91; Merchant's Bank v. Clark, 18 Gr. 594 ; Wood ». Irwin, 16 Gr. 398 : Gotwalls »» Mulholland, 3 E. & A. 101; Ont. Stat. 35 Vic., cap. 11. 116 EQUITY JURISPRUDENCE. 267. A post nuptial settlement made in pursuance of a prior written agreement is valid against creditors, but a parol ante- nuptial agreement does not prevent a post-nuptial settlement -from being voluntary(a). Post nuptial settlements are, asa general rule, voluntary deeds and therefore void as against creditors, and the fact that such a settlement is founded ona moral duty will not deprive it of the voluntary character(b). In certain cases, a post nuptial settlement if made in perform- ance of aduty which a court of equity would enforce, isnot to be treated as wholly voluntary(c). 268. The decided cases on the subject of conveyances in fraud of creditors are not entirely consistent with one another. In some cases the rule seems laid down that a deed is not in- valid, unless the grantor was at the time indebted to the extent of insolvency; but the rule as so laid down is not correct(d). According to other cases a voluntary settlement is not invalid, although the settler may have been at the time considerably indebted, provided he was not indebted beyond his means of payment remaining after the settlementce). The correct con- clusion to be drawn from the cases seems to be, that if the debt of the creditor who impeaches the settlement existed at the date of the settlement, and the necessary consequence of (a) Spurgeon v. Collier, 1 Ed. 61; Randall v. Morgan, 12 Ves. 67; Lassence v. Tierney, 1 Mac. & G. 551; Ex parte McBurmie, 1D. M. & G. 44; Warden v. Jones, 2D. & J. 76; Goldicutt v. Townsend, 28 Beav. 445; Totten v. Douglass, 16 Gr. 243. The consideration of marriage will not support a settlement by a man in insolvent or embarrassed circumstances, if there be evidence that the wife was implicated in any design to delay or defraud the creditors of the intended husband, or that the marriage was part of a scheme or contrivance between them tv protect his property against his creditors. Colombine v. Penhall, 1 Sm. & G. 228; Fraser v. Thompson, 4 D. & J. 600. (b) Holloway v. Headington, 8 Sim. 324; Jefferys v. Jefferys, Cr. & Ph. 138, 141. A post nuptial settlement made on the receipt of an additional portion, is a settlement for valuable consideration. Sug. V. & P. [14th ed.] 718. (c) 1 Fonbl. Eq. B. K. 1, ¢. 4,8, 12, note [6] ; Ib. c. 2,8.63 Jones v. Marsh, Ca. t. Talb. 64; Wheeler v. Caryl. Amb. 121; Jewsonv. Moulson, 2 Atk. 417; Middlecombe vu Marlow, 2 Atk. 519; Ward v. Shallett, 2 Ves. 16; Arundell v. Phipps, 10 Ves. 139. (d) Per. V. C. Kindersley in Thompson v. Webster, 4 Drew. 632. And see Towns- end v. Westacott, 2 Beav. 340, 345. (e) See Townsend v. Westacott, 2 Beav. 340; Skarf v. Soulby, 1M. & G. 364; French v. French, 6 D. M. & G. 95. And see Bank of Upper Canada v. Shickluna,. 10 Gr. 157. CONSTRUCTIVE FRAUD. 117 the settlement is, that creditors are defrauded or delayed, it is immaterial whether the debtor was or was not solvent after making the settlement(a). “The fact” said Lord Westbury, in Spirrett v. Willows, “ of a voluntary settler retaining money enough to pay the debts which he owed at the time of making the settlement, but not actually paying them, cannot give a different’ character to the settlement, or take it out of the statute. It still remains a voluntary alienation or deed of gift, whereby in the event the remedies of creditors are delayed, hindered or defrauded.” 269. The provisions of the 18 Eliz. c. 5, are not confined to existing creditors at the date of the settlement, but extend to subsequent creditors also(b). Subsequent creditors cannot, however, set aside a settlement, unless the settlement was made with the express intent to “ delay, hinder, or defraud,” persons who might become creditors(c) ; or the settlor had not, after the settlement, sufficient means or reasonable expectation of being able to pay, his then existing debts, in which case the law infers that the settlement was made with intent to delay hinder or defraud creditors(d@) ; or debts due at the date of the settlement remain unsatisfed(e). If at the time of filing the bill no debt due at the date of the settlement remains un- paid, and there is no evidence that the object of it was to de- lay hinder or defraud subsequent creditors, the settlement will prevail against them(/), but if any debt due at the execution of the settlement remains unsatisfied(g), or if, though the set- (a) Spirrett ». Willows, 34 L. J. Ch, 865. And see French v. French, 6 D. M. & G. 95; Thompson 7. Webster, 7 Jur. N.S. 531; Smith v. Cherrill, L. R.4 Hq. 395 ; Corbett v. Radcliffe, 14 Moo. P. C. 135. And see 2 Kent’s Com. 442. (6) Tarback v. Marbury, 2 Vern. 509. c) Stileman v. Ashdown, 2 Atk. 481; Stephens v. Olive, 2 Bro. C. C. 91 ; Hollo- way v. Millard, 1 Mad. 414; Holmes v, Penney, 3K. & J. 99; Barling v. Bishopp, 29 Beav. 417 ; Murphy v. Abraham, 15 Ir. Ch. 371. @ Spirrett v. Willows, 34 L. J. Ch. 367; Thompson v. Webster, 7 Jur. n.8. 531; Waddle v. McGinty, 15 Gr. 262. But see Freeman v. Pope, L. R.5 Chan. 543, (e) Jenkyn v. Vaughan, 3 Drew. 419; Barton y. Vanheythuysen, 11 Ha. 132. (f) Jenkyn v. Vaughan, 3 Drew. 419. See Russell v. Hammond, 1 Atk. 13; Holmes v. Penney, 3K. & J. 96; Barling v. Bishop, 29 Beav. 417 ; Thompson v. Webster, 7 Jur. n.s. 531. : (9) Jenkyn v. Vaughan, 3 Drew. 419, Comp. Holmes 7. Penney, 3 K. & J. 90; and see Graham v. O’Keefe, 16 Ir. Ch. 1. 118° EQUITY JURISPRUDENCE. tlor was not indebted at the time, the settlement was made in contemplation of future debts, or in furtherance of a meditated design of fraud, the deed will be set aside/a). 270. To make a voluntary settlement or conveyance void as against creditors, whether existing or subsequent, it is indis- pensable that it should transfer property liable to be taken in execution for the payment of debts(0). 271. When after a bill of sale of chattel property, purport- ing on its face to take effect immediately itis executed, the vendor is permitted to remain in possession of the property, a strong presumption of fraud against creditors arises(c). But such possession is only a prima facie presumption of fraud which may be rebutted by explanation, showing the transac- tion to be fair and honest, and giving a reasonable ground for the retention of possession(d). 272. Before a creditor can file a bill impeaching a convey- ance as fraudulent, he must establish his right at law by re- covering judgment, and issuing execution thereon(e). But where the bill prayed only a declaration that the conveyance was fraudulent, and thatthe grantee might be restrained from alienating, a demurrer for want of equity, the plaintiff being only a simple contract creditor, was overruled(/). (a) Stileman v. Ashdown, 2 Atk. 481; Richardson v. Smallwood, Jac. 552; Hol- loway v. Millard, 1 Mad. 414; Barling v. Bishop, 29 Beav. 417 ; Murphy »v. Abra- ham, 15 Ir. Ch. 371; Graham v. O’Keefe, 16 Ir. Ch. 1. And see Whittington v. Jennings, 6 Sim. 496; Bank of British North America v. Rattenbury, 7 Gr. 383 ; Buckland v, Rose, 7 Gr. 440; Goodwin v. Williams, 5 Gr. 539. (b) See Dundas v. Dutens, 1 Ves, 196; Cartland v. Estwick, Anst. 381 ; Nantes v. Corrock, 9 Ves. 188, 189 ; Rider v. Kidder, 10 Ves. 368; Guy v. Pearkes, 18 Ves. 196 ; McCarthy, v. Gould, 1 B. & B. 389; Grogan v. Cook, 2 B. & B. 233. (c) Twynne’s case, 3 Rep. 81 ; Edwards v. Harben, 2 T. R. 587. (d) Cadogan v. Kenneth, Cowp. 434; Martindale v. Booth, 3 B. & Ad. 498, 505; Latimer », Batson, 4 B. & C. 652; Minshall v. Lloyd, 2M. & W. 450; Lindon». Sharp, 6 Man. & Gr. 895, 898; Cook v. Walker, 3 W. R. 337. (e) M’Master v. Clare, 7 Gr, 550; Whiting » Lawrason, 7 Gr. 603; Ferguson v- Kilty, 10 Gr. 106; Dyffy », Graham, 15 Gr. 547; Colman v. Croker, 1 Ves. 161; Neate v, Duke of Marlborough, 3 M. & C. 407; Smith vy. Hurst, 10 Ha. 30. But see Lister v. Turner, 5 Ha, 281, a Longeway v. Mitchell, 17 Gr. 190; Reese River Mining Co. v. Atwell, L. R.7 q. 347, CONSTRUCTIVE FRAUD. 119 273. Formerly the law tolerated assignments by [debtors, which gave one creditor a preference over another; and the fact that an assignment was made expressly to defeat the claim of a particular creditor was of no consequence, if the consider- ation was adequate(a). Now, however, all such preferences by a person in insolvent circumstances, or unable to pay his debts in full, or knowing himself to be on the eve of insol- vency, when made voluntarily or by collusion with a creditor or creditors, are forbidden(}). But a mortgage made to a cre-. ditor without any fraudulent intent, and under the influence of pressure on the part of the creditor, is not void, though the effect of the transaction may ultimately be to give a preference to the other creditors(c). 274. Under the Insolvent Act, gratuitous contracts or con- veyances respecting either real or personal estate, made by a debtor within three months preceding his insolvency, are pre- sumed to be made with intent to defraud his creditors(d). And all contracts made with intent to impede, obstruct, or delay creditors, with the knowledge of the party contracting with the debtor, are also void(e). Contracts or conveyances for consideration, by which creditors are injured or obstructed, made by a debtor with a person ignorant of the debtor’s ina- bility to meet his engagements, are voidable, and may be set aside by any court of competent jurisdiction upon such terms (a) Holbird v. Anderson, 5 T. R. 235 ; Estwick v. Caillaud, 5 T. R. 420; Grogan v Cooke, 2 B. & B. 235 ; Pickstock v. Lyster, 3 M. & S. 371; Wood v. Dixie, 7 Q. B. 892 ; Hale v. Saloon Omnibus Co., 4 Drew. 492 ; Wolverhampton and Staffordshire Banking Co. v. Marston, 7 H. & N. 148. But see Bott v. Smith, 21 Beav. 511. (0) Con. Stat. U. C. c. 26, ss. 17 & 18; Coates v. Joslin, 12 Gr, 524. (c) Gordon v. Young, 12 Gr. 319; Tuer v. Harrison, 14 U. C. C. P. 449; Gott- walls v, Mulholland, 15 U. C. C. P. 63; Bank of Toronto v. McDougall, 15 U. C.C. P. 475; Bank of Australia v. Harris, 8 Jur. N. S. 181; Bills v. Smith, 11 Jur. N. S. 155. A debtor defending one action brought against him by a creditor, and allowing judg- ment by default to be entered in an action by another creditor, will not render the latter judgment void, under Con. Stat. U. C. c. 26s, 17, Young». Christie, 7 Gr. 312. (d) 32 & 33 Vic. c. 16, 8. 86. See Newton », Ontario Bank, 13 Gr. 652: on appeal- - 15 Gr, 283 ; a decision under the former Insolvent Act, 27 & 28 Vic. c. 17. (ce) 32 & 33 Vic. v.16, s. 88; and see Re Colmere, L. R. 1 Chan. 128 ; Wood », Bar ker, L. R. 1 Eq. 139; Ford». Olden, L. R. 3 Eq. 461; Mercer v. Peterson, L. R. 2 Ex. 304; affirmed, L. R. 3 Ex. 105. But see Jackson v. Bowman, 14 Gr. 156. 120 EQUITY JURISPRUDENCE. as the court may order(a). Any sale, deposit, pledge, or trans- fer, by any person, in contemplation of insolvency, by way of security to any creditor, or any gift of property, real or per- sonal, by way of payment to any creditor, whereby such cre- ditor obtains an unjust preference over other creditors, is null and void, and the subject thereof may be recovered back, and: if made within thirty days preceding the execution of an assignment, or the issuing of a writ of attachment, is presumed to have been made in contemplation of insolvency(b). 275. Every payment made by a debtor within thirty days before his insolvency to a person knowing his inability to meet his engagements in full, is void(c). And the transfer of any debt due by the insolvent to one of his debtors for the pur- pose of enabling him to set up such debt by way of compen- sation or set off, if made within thirty days preceding the insolvency, is null and void as regards the insolvent’s estate(d). 276. It has been held in England, that, if a man makes a conveyance of lands in order to defraud his creditors, and dies, his creditors have no right to set aside the conveyance, for the statute 3 & 4 W.& M.,c. 14, respecting devises in fraud of creditors was only designed to secure creditors against any imposition, which might be supposed in a man’s last sick- ness(¢). Bu inthis Province, where lands and other here- ditaments are made assets for the payment of debts, as auxi- liary to the personal property of the deceased, if the debtor in his life time, has fraudulently conveyed his estate, with a view to defeat his creditcrs upon his decease, the real assets (a) 32 & 33 Vic. v. 16, ». 87; Bank of Montreal v. McWhirter, 17 U. C. C. P. 506. (b) 32 & 33 Vic. c. 16,8. 89; Adams v. McCall, 25 U. C. Q. B. 219; McWhirter Thorne, 19 U. C. C. P. 302; Re Owens, 12 Gr. 560. See Gordon v. Young, 12 Gr. 318 ; Roe v. Smith, 15 Gr. 344; Royal Canadian Bank v. Kerr, 17 Gr: 47 ; Mathers ». Lynch, 27 U. C. Q. B. 244. (c) 32 & 33 Vic, ve. 16, 3, 90: Marshall y, Lamb, 7 Jur. 850. (d) 32 & 33 Vic. v.16, s, 91, (e) Parslow v. Weaden, 1 Eq. Abr. 14, Pl. 7; 1 Fonbl. Eq, B, 1, ch. 4,s. 12, 14, and note (2); Jones v. Maash, Cas. t. Talb. 64; Colman v. Croker, 1 Ves. 160. But see Lis- ter v. Turner, 5 Ha. 281. CONSTRUCTIVE FRAUD. 121 are subject to the same disposition as if no such conveyance had been made/a). 277, Another case of fraud upon creditors is where upon a composition by a debtor with his creditors, an undue advan- tage is secured to particular creditors, by a secret bargain with the debtor. Accordingly, any secret arrangement between the debtor and a particular creditor, whereby he is placed in a more favoured position than the other creditors, is a fraud upon them(c), and such an agreement is void even against the assenting debtor, or his sureties, or friends(b). 278. This relief is granted not for the sake of the debtor, for no deceit or oppression may have been practised upon him ; but for the sake of honest, and humane, and unsuspecting creditors. And, hence, the relief is granted equally, whether the debtor has been induced to agree to the secret bargain by the threats or oppression of the favoured creditors, or whether he has been a mere volunteer, offering his services, and aiding in the intended deception. Such secret bargains are not only deemed incapable of being enforced or confirmed, but even money paid under them is recoverable back, as it has been obtained against the clear principles of public policy(d). And. it is wholly immaterial, whether such secret bargains give to the favoured creditors a larger sum, or an additional security or advantage, or only misrepresent some important fact ; for the effect upon other creditors is precisely the same in each of these cases. They are misled into an act,to which they might not otherwise have assented(e). (a) Story, ss. 375, 376. d (t) Jackman v. Mitchell, 13 Ves. 581; Ha parte Sadler and Jackson, 15 Ves. 52 ; Coleman +. Waller, 3 Y. & J. 215; Cullingworth v. Lloyd, 2 Beav. 385 ; Pendlebury v. Walker, 4 Y. & C. 434; Ex parte Oliver, 4 D. & Sm. 362; Mare v. Sandford, 1 Giff. 288 ; Mare v. Warner, 3 Giff. 100 ; Wood v. Barker, L. R.1 Eq. 139. (©) Spurrett v. Spiller, 1 Atk. 105; Jackman v. Mitchell, 13 Ves. 581; Jones v. Barkly, Doug. 69%, note ; Cockshott v. Bennett, 2 T. R. 763 ; Jackson v. Lomas, 4 T. R. 166. (d) Smith v. Bromley, Doug. 696, note ; Jones 7 Barkley, Doug. 695, note ; Jack- man v. Mitchell, 13 Ves. 581; Ex parte Sadler and Jackson, 15 Ves. 55; Mawson ». Stock, 6 Ves. 300. (© Story, s. 379; Eastabrook »v. Scott, 3 Ves. 456; Constantein v. Blache, 1 Cox, 287 ; Cullingworth v. Lloyd, 2 Beav. 385, and note 390; Leicester . Rose, 4 East, 372; See Furlong v Fottrel], Ir. R. 3 Eq. 432 ; Mare v. Sandford, 1 Giff. 288. 122 EQUITY JURISPRUDENCE 279. Any agreement, made by an insolvent debtor with his assignee, by which the estate of the insolvent is to be held in trust by the assignee, to secure certain benefits for himself and his family, such as to pay certain annuities to himself and his wife, out of the rents or proceeds of the property assigned, and to apply the surplus to the extinction of debt due to the assignee, will be held void, and will be rescinded, upon the ground of public policy, even at the instance of the insolvent himself (a). 280. Although voluntary and other conveyances, in fraud of creditors, are void, as against them, yet, they are so, only so far as the original parties and their privies, and others claim- ing under them, who have notice of the fraud, are concerned. Bona fide purchasers for a valuable consideration, without notice of the fraudulent or voluntary grant, are of such high consideration, that they will be protected, as well at law asin equity, in their purchases. It would be plainly inequitable, that a party who has, bona fide, paid his money upon the faith of a good title, should be defeated by any creditor of the origi- nal grantor, who has no superior equity, since it would be impossible for him to guard himself against such latent frauds; bd). 281. What circumstances connected with voluntary or valu- able conveyances, are badges of fraud, or raise presumptions of intentional bad faith, though very important ingredients in the exercise of equitable jurisdiction, fall rather within the scope of treatises on evidence, than of discussions touching jurisdiction(c). It may, however, be said generally, that what- ever would at law be deemed badges of fraud, or presump- tions of ill faith, will be fully acted upon in courts of equity. But, on the other hand, it is by no means to be deemed a logi- cal conclusion, that, because a transaction could not be reached at law as fraudulent, therefore it would be equally safe against (a) McNeill v. Cahill, 2 Bligh, 228. (b) Story, s. 381. (c) See 1 Eq. Abr. 148, E.; Twynne’s case, 3 Co. 80, and see as to badges of fraud under English Bankrupt Law, Allen v. Bonnett, L. R. 5 Chan. 577. CONSTRUCTIVE FRAUD. 123° the scrutiny of a court of equity ; for a court of equity requires. a scrupulous good faith in transactions which the law might not repudiate. As has been said by V. C. Page Wood, “The view taken by this court as to morality of conduct among all parties * * * ¥* is one of the highest morality. The standard by which parties are tried here is a standard, I am thankful to say, far higher than the standard of the world (a). 282. Other underhand agreements, which operate as a fraud upon third persons, and to which the same remedial justice has been applied, may be suggested. Where a father, upon the marriage of his daughter, had entered into.a covenant | that upon his death he would leave her certain tenements, and he would also by his will, give and leave her a full and equal share, with her brothers and sisters, of all his personal estate, and afterwards, transferred to his son a very large por- tion of his personal property, consisting of. public stock, but retained the dividends for his own life ; the transfer was held void, as a fraud upon the marriage articles(b). Covenants of this nature do not prohibit a man from making, during his life. time, any dispositions of his personal property among his chil-- dren, more favourable to one than another. But they do pro- hibit him from doing any acts which are designed to defeat. and defraud the covenant. A parent may, if he pleases, make an absolute gift to a child; but it must be an absolute and unqualified one, and not a mere reversionary gift, which saves the income to himself during his own life(c). 283. So if money to purchase goods for another, or to relieve him from pressure of his necessities, is advanced by any one, and the other parties interested should enter into a private agreement over and beyond that with which the party advanc- ing the money is made acquainted, the agreement will be void at law, as well as in equity ; for he is drawn in to make the advance by false colours held out to him, and under a suppo-- (a) Blissett v. Daniel, 10 Ha. 536. (6) Jones v. Martin, 3 Anst. 882; 5 Ves. 265, n. See also Randall v. Willis, 5 Ves. 261; McNeill v. Cahill, 2 Bligh, 228. See Stocken v. Stocken, 4 M. & U. 95. (c) Story, s. 382; Jones v. Martin, 3 Anst. 882. . “124 EQUITY JURISPRUDENCE. : sition that he is acquainted with all the facts(a). So the -guaranty of the payment of a debt, procured from a friend upon the suppression by the parties of material circumstances, -is a virtual fraud upon him, and avoids the contract(b). 284. Another class of constructive frauds consists of those where a man designedly or knowingly produces a false im- pression upon another, who is thereby drawn into some act or contract, injurious to his own rights or interests(c). And ‘there is no real difference between an express representation, and one that is naturally or necessarily implied. from the cir- - cumstances(d). 285. In many cases, a man may innocently be silent, but ‘in other cases, he is bound to speak out, and his very silence becomes as expressive asif he had openly consented to what is said or done, and had become a party to the transaction(e). ‘Thus, if a man, having a title to an estate, which is offered for sale, and knowing his title, stands by and encourages the sale, -or does not forbid it, and thereby another person is induced to purchase under the supposition that the title is good, the former, so standing by and being silent, will be bound by the sale, and neither he nor his privies will be at liberty to dispute the validity of the purchase. So,if a man should stand by, and see another person, as grantor, execute a deed of convey- ance of land belonging to himself, and knowing the facts, should sign his name as a witness, he would in equity be bound by the conveyance(/). So, if a party having a title to .an estate, should stand by, and allow an innocent purchaser to (a) Jackson v. Duchaire, 3 T. R. 551. (b) Story, s. 383; Pidcock v, Bishop, 3 B. & C. 605; Smith e. Bank of Scotland, “1 Dow, 272. See Owen «. Homan, 3 Mac. & G. 378; Squire v. Whitton, 1 H. L- 333. (c) Com. Dig. Chancery, 4 W. (d) Dart, (4th Ed.) 84, 85, 590. (e) Savage v. Foster, 9 Mod. 35; Com. Dig. Chancery, 4 I. 3, 4 W. ; Hanning »y, Ferrers, 1 Eq. Abr. 356, pl. 10. (f) Davies v. Davies, 6 Jur. N.S. 1320; Savage v. Foster, 9 Mod. 35; Hobbs v Norton, 1 Vern. 136°; Boyd v. Belton, 1 J. & L. 730; Thompson v. Simpson, 2 J. -& L. 110; Leary. v. Rose, 10 Gr. 346 ; Re Shaver, 3 Chan. Cham. R. 385 ; Teasdale v. Teasdale, Sel. Ch sep. 59. CONSTRUCTIVE FRAUD, 125 expend money upon the estate, without giving him notice, he would not be permitted by a court of equity to assert that title against such purchaser, at least not without fully in. demnifying him for all his expenditure(a). And neither in-- fancy nor coverture constitute any excuse for the party guilty of the concealment or misrepresentation(b). 286. To justify the application of this principle, it is indis-- pensable that the party standing by and concealing his rights should be fully apprised of them, and should by his conduct or gross negligence, encourage or influence the purchase, for if he is wholly ignorant of his rights, or the purchaser knows them, or, if his acts, or silence or negligence, do not mislead, . or in any manner affect the transaction, there can be no just inference of actual or constructive fraud on his part. A right can be lost or forfeited only by such conduct as would make it fraudulent and against conscience to assert it(c). 287. Another case, illustrative of the same doctrine, is, where through inadvertence, or a mistake of title, a man expends money improving the estate of another, with the knowledge of the real owner, who stands by and suffers him to proceed, without giving notice of his own claim. In such a case the real owner would not be permitted to avail himself of such im- provements, without paying full compensation, for, in con- science, he was bound to disclose the defect of title(d). (a) Story, s. 385. See Cawdor v. Lewis,1 Y. & C. Ex. 427; Re Shaver, 3 Chan. Cham. R. 386. (b) Savage v. Foster, 9 Mod. 35; Evroy, v. Nichols, 2 Hq, Abr. 489; Clare v, Earl of Bedford, cited 2 Vern. 150, 151; Beckett ». Cordley, 1 Bro. C. C. 357 ; Watts v. Creswell, 2 Eq. Abr. 515; Cory v. Gertcken, 2 Mad. 40; Re Shaver, 3 Chan. Cham. R. 388. And see Barrow v. Barrow, 4 K. & J. 409; Nelson wv Stocker, 5 Jur. n.s. 262. (c) Story, s. 386, See Neville v Wilkinson, 1 Bro. C. C. 546; 3 P. W. 74, note; Scott v. Scott, 1 Cox, 378, 379, 380; Evans v. Bicknell, 6 Ves. 173, 182, 183, 184 ; Pearson v. Morgan, 2 Bro. C. C. 388. And see Brown v. Thrope, 11 L. J. Ch. 73; Davies v. Davies, 6 Jur. N.S. 1322; Marker v. Marker, 9 Ha, 16; Hooper v. Cooke, 25 L. J. Ch. 467 ; Ramsden v. Dyson, L. R. 1 H. L. 129. (d) Pilling », Armitage, 12 Ves. 84, 85. And see Bright ». Boyd, 1 Story, 478 ; ‘Thornton v. Ramsden, 4 Giff. 519; Powell v. Thomas, 6 Ha. 300; East India - Company ». Vincent, 2 Atk. 83; Dann v. Spurrier, 7 Ves. 231, 235; Jackson v. Cator, 5 Ves. 688; Shannon « Bradstreet, 1 S.& L. 78. See also Ont. Stat. 36. Vic. o. 22. 126 EQUITY JURISPRUDENCE. 288. The principle does not apply inthe case of a man who builds on land knowing it to be the property of another, nor ‘in favour of a lessee who expends money with the knowledge of his landlord on the improvement of the estate. If a stranger builds on land knowing it to be the property of another, equity will not prevent the real owner from claiming the land, with the benefit’ of all the expenditure upon it. So, if a tenant lays out money in the hope or expectation of an extended term, or an allowance for it, unless such hope or expectation has been created or encouraged by the landlord, the tenant has no equity to prevent the landlord from taking possession of the land and improvements when the tenancy is determined(a). Nor does the principle apply in favour of a man who is conscious of a defect in his title, and-with such conviction on his mind, expends money in improving the property(b). , 289. Another case, illustrating the same doctrine, is, where a person, having an incumbrance upon an estate, and know- ing that another person is about to lend money on the mort- gaged property, denies that he has an incumbrance, or asserts that it is satisfied, or is a witness to a subsequent mortgage or conveyance of the same property, knowing the contents of the deed, and does not disclose his prior incumbrance, he would be postponed to the second mortgagee, who lends his money on the faith of the representations so made(c). 290. So, where one puts the evidence of his lien into the debtor’s hands, so as to enable him to represent it as extin- guished, and thereby gain further credit upon the same pro- (a) Pilling ». Armitage, 12 Ves. 78; Clare Hall v. Harding, 6 Hare, 273; Duke of. Beaufort v. Patrick, 17 Beav. 60; Hamer v. Tilsley, John. 486; O’Fay v. Burke, 8 Ir. Ch. 226; Ramsden v. Dyson, L. R., 1 H. L. 129. See Rennie v. Young, 2D. & J. 142. (b) Kenney v. Brown, 3 Ridg. 518. (c) Draper v. Borlace,2 Vern. 369; Clare v. Earl of Bedford, cited 2 Vern. 150, 151; Mocatta v. Murgatroyd, 1 P. W. 393, 394; Berrisford v. Milward, 2 Atk. 49; Becket v. Cordley, 1 Bro. C. C. 353, 357 ; Evans v. Bicknell, 6 Ves. 173, 182, 183 ; Pearson v. Morgan, 2 Bro. C. C. 385, 388; Plumb v. Fluitt, 2 Anst. 432; West Reid, 2 Ha. 249, 259, CONSTRUCTIVE FRAUD. 127 perty, the first lien will be postponed to the subsequent one(a). 291. And if a trustee should permit the title-deeds of the estate to go out of his possession for the purpose of fraud, and intending to defraud one person, should defraud another, equity will grant relief against him(b). So, if a bond should be given upon an intended marriage, and to aid it, and the marriage with that person should afterwards go off, and ano- ther marriage should take place upon the credit of that bond | the bond would bind the party in the same way as it would if the original marriage had taken effect/c). 292. The same principle applies to cases of a contract to sell lands, or to grant leases thereof. If a subsequent purchaser has notice of the contract, he is liable to the same equity, and stands in the same place, and is bound to do the same acts, which the person who contracted, and whom he represents, would be bound to do(d). 293. In all this class of cases, the doctrine proceeds upon the ground of constructive fraud, or of gross negligence, which in effect implies fraud. And, therefore, where the circum- stances of the case repel any such inference, although there may be some degree of negligence, yet courts of equity will not grant relief(e). It has, accordingly, been laid down by a very learned judge, that the cases on this subject go to this extent only, that there must be positive fraud, or concealment, or negligence, so gross as to amount to constructive fraud//). And, if the intention be fraudulent, although not exactly point- (a) Perry-Herrick v. Atwood, 2 D. & J. 21. But see Tayler 7. Great Indian Pen- insula Railw. Co., 5 Jur. N. 8. 1087. (6) Evans v. Bicknell, 6 Ves. 174, 191; Clifford.v. Brooke, 13 Ves. 132. (c) Story, s. 392. See Evans v. Bicknell, 6 Ves. 191. (d) Story, s. 396; Taylor v. Stibbert, 2 Ves. 438; Davis v. Earl of Strathmore, 16 Ves. 419, 428, 429; Underwood v. Courtown, 2 S. & L. 64; Mackreth ». Symmons, 15 Ses. 350; Scott v Dunbar, 1 Moll. 442; Field v, Bolland, 1 Dr. & Wal. 37. See Dowell v. Dew, 1 Y. & C. 345. (e) Tourle v. Rand, 2 Bro. C. C. 652. (f) Evans v. Bicknell, 6 Ves. 190, 191, 192; Merewether v. Shaw, 2 Cox, 124 See Hewitt v. Loosemore, 9 Ha. 449. 128 EQUITY JURISPRUDENCE. ing to the object accomplished ; yet the party will be bound to the same extent as if it had been exactly so pointed(q). 294. The Stat. 27, Eliz. c. 4, made perpetual by 39 Eliz. c. 18, s. 81, was enacted for the protection of purchasers, as the 18 Eliz.c.5, was for that of creditors. It enacted that every conveyance, grant, charge, lease, limitation of use, of in, or out of any lands, tenements, or other hereditaments whatsoever for the intent and purpose to defraud and deceive such per- sons, &c., as shall purchase the said lands, or any rent or profit out of the same, shall be deemed only against such persons, their heirs, &c¢., who shall so purchase for money, or any good consideration, the said lands, to be wholly void, frustrate, and of none effect. Chattels personal, in which respect they differ from chattels real, are not within the statute, and therefore, a voluntary settlement of chattels personal would not be de- feated by a subsequent sale(b). A mortgagee is a purchaser within the meaning of the act(c), but a judgment creditor is not(d). 295. A voluntary conveyance, is, by the statute, void as against a subsequent purchaser, although it may have been bona fide and for good consideration, and although the pur- chaser may have had full notice of it(e). Pre-nuptial marriage settlements and post-nuptial settlements made in pursuance of pre-nuptial articles are settlements for valuable consideration, and therefore good against subsequent purchasers(f). But as a general rule a post-nuptial settlement is voluntary(g). (a) Story, s. 391; Evans v, Bicknell, 6 Bes. 191, 192 ; Beckett v. Cordley, 1 Bro. C. C. 357. (b) Saunders v. Dehew, 2 Vern. 272; Bill v. Cureton, 2M. & K. 503; McDonell v. Hesilrige, 16 Beav. 346. (c) Chapman v. Emery, Cowp. 279. (d) Bevan v. Earl of Oxford, 6 D. M. & G. 507. (e) See Evelyn v. Templar, 2 Bro. C. C. 148 ; Doe ». Manning, 9 East, 59; Pul- verloft v. Pulverloft, 18 Ves. 84, 86 ; Buckle v. Mitchell, 18 Ves. 100 ; Kelson v. Kel- son, 10 Hare, 385 ; Daking v. Whimper, 26 Beav. 568; Clarke ». Wright, 6 H. & N. 49. (f) Sug. V. & P. 718 ; Dart, 576. (g) Sug. V. & PB. 715. CONSTRUCTIVE FRAUD. 129 296. A purchaser cannot avail himself of the Statute, un- less he purchased bona fide and for a valuable consideration (a). And in order that a subsequent conveyance for value should defeat a prior voluntary conveyance, it is essential that both should be made by the sameperson. An heir or devisee cannot by a conveyance for value, defeat a voluntary settle- ment made by his ancestor or testator(b). Where a voluntary settlement is avoided by a subsequent sale, the volunteers , have no equity against the purchase money payable to the settlor(c). 297. As between the parties themselves, and as against other voluntary grantees of the same estate, voluntary con- veyances are binding(d). A voluntary settlement will be defeated by a conveyance or settlement for value, only to the extent necessary to give effect to the conveyance or settlement for value(e). A purchaser for value eannot come into court to havea prior voluntary deed void under the statate delivered up to be cancelled. In such a case, the court leaves both par- ties to their legal rights and remedies//). 298. Questions under the 27 Eliz. c. 4, have never been fre- quent in this Province, and are still less likely to arise in future, in consequence of Ont. Stat.31 Vie.c. 9. By that Act it is provided that notwithstanding the 27 Eliz. c. 4, no volun- tary conveyance shall be void, merely from absence of valuable consideration, if executed in good faith and duly registered (2) Humphreys v. Pensam, 1M. & C. 580 ; Roberts v. Williams, 4 Hare, 130. In the case of deeds alleged to be voluntary, the court does not enter into the quantum of consideration, but only enquires whether the transaction was one of bargain, or one of gift merely. Kelson v. Kelson, 10 Hare, 385 ; Townend »v. Tolker, L. R. 1 Chan, 459. - (b) Parker v. Carter, 4 Hare, 409; Doe ». Rusham, 17 Q. B. 723 ; Lewis v. Rees, 3 K. & J. 132. (ce) Daking v. Whimper, 26 Beav. 568. (d) Bill ». Cureton, 2M. & K. 503 ; Doe v. Rusham. 17 Q. B. 723; Lewis v. Rees, 3K. &J. 132. (e) Croker ». Martin, 1 Bligh, N. R. 573° (f) De Hoghton v. Money, 35 Beav. 98. 9 180 EQUITY JURISPRUDENCE, ‘‘before the execution of the conveyance to, and before the creation of any binding contract for the conveyance to, any subsequent purchaser from the same grantor of the same lands.” A subsequent clause provides that the Act shall not operate so as to render valid, instruments void for any other reason or in addition to the absence of a valuable consideration. 299. Having now gone through most of the cases generally : classed under the head of constructive fraud, it is proper to treat shortly of the position in which purchasers bona fide for valuable consideration, and purchasers entitled to rely for pro- tection on the Registry laws stand; and also of the doctrine of notice. 800. The right to impeach a transaction on the ground of fraud, has no place as against a purchaser for valuable con- sideration without notice. If a man has paid his money in ignorance of the fact that another party has an equitable claim to the property, a court of equity will not deprive him of the benefit of his legal title even although his equitable claim be of later date than that of the other party(a). This rule, that a purchaser bona fide without notice will be protected, applies equally to real estate, chatteis, and personal property(b), and is subject to no exception, even in favour of charities(c). 301. A purchaserfor valuable consideration without notice of any defect in his title, may buy in or obtain any outstanding legal estate not held upon express trust for an adverse claim- ant; or any other legal advantage, the possession of which’ may be a protection to himself or an embarassment to other (a) Lloyd v. Passingham, Coop. t. Eldon, 152; Attorney-General v. Flint, 4 Hare, 156; Blackie v. Clark, 15 Beav. 595; Cobbett v. Brock, 20 Beav. 528 ; Dawson v. Prince, 2D. & J. 41; Dodds v. Hills, 2 H. & M. 424. Compare Vorley v. Cooke, 1 Giff. 230 ; Ogilvie v. Jeaffreson, 2 Giff. 379 ; Cottam v. Eastern Counties Railway Co.. 1 J. & H. 243. : (b) Joyce v. De Moleyns, 2 J. & L. 377; Dawson v. Prince, 2D. & J. 49; Dodds- v, Hills, 2H. & M. 424. See Thorndike v. Hunt, 3 D. & J. 563; Case v, James,, 29 Beav. 512. (c) Att.-Gen. v. Wilkins, 17 Beay. 293. CONSTRUCTIVE FRAUD. 131 claimants(a). And a person affected by notice has the benefit of want of notice by intermediate purchasers(b). Thus, a purchaser will not be affected by notice if he purchase from one who himself bought bona fide without notice(c). 302. The protection from getting in the legal estate extends even to cases where the apparent or asserted equitable title is deduced through a forged instrument(d): provided the appa-- rent title of the party from whom it was derived was clothed with possession(¢). If, however, an instrument, which pur- ports to convey a legal estate or interest, be forged, no title can be acquired under it. A man who takes under such an instrument has no title at all,and cannot claim as a purchaser without notice( f). 303. Though at one time doubted, it seems to be now settled that the defence of a purchase for value without notice will prevail as well against a legal title as an equitable title, in other words, it applies as well when the right sought to be enforced is a legal right as when it is an equitable one(g). But as between persons claiming merely equitable interests, the defence has no place. A party who purchases an equity takes (a2) Saunders v. Dehew, 2 Vern. 271; Willoughby v. Willoughby, 1 T. R. 763 ; Jer- rard v. Saunders, 2 Ves. 458; Maundrell v. Maundrell, 10 Ves. 246; Hughes v. Garner, 2Y.&C. Ex. 328; Carter v. Carter, 3 K. & J. 617; Bates v. Johnson, John, 304 ; Sharples v. Adams, 32 Beay. 213; Fagg v. James, 8 L. T. N.S. 7. (0) McQueen v. Farquhar, 11 Ves. 467; Rogers v. Shortis, 10 Gr. 243. (c) Harrison v. Firth, 1 Eq. Ca. Abr. 331; Lowther v. Carlton, 2 Atk. 242; Brand- lyn » Ord, 1 Atk. 571; Sweet v. Southcote, 2 Bro. C. C. 66; Andrew ». Wrigley, 4 Bro. C. C. 125. (a) Jones v. Powles, 3 M. & K. 581; Dawson vw Prince, 2 D. & J. 41. See Lloyd v..Passingham, Coop. t. Eldon, 152 ; Bowen v. Evans, 1J. & L. 264; Lloyd:v. Attwood, 3 D. & J. 655. (e) Jones v. Porvles, 3 M. & K. 596; Ogilvie v. Jeaffreson, 2 Giff. 380, See Cot- tam v. Eastern Counties Rail. Co. 1J. & H. 248. (f) Esdaile v. La Nauze, 1 Y. & C. Ex. 399. See Cottam v. Eastern Counties Rail. Co. 18 J.& H. 248. (g) Bowen v. Evans, 1 J. & L. 264; Payne v. Compton, 2Y.& C. Ex. 457; Att- Gen. v. Wilkins, 17 Beav. 285; Lane » Jackson, 20 Beav. 535; Hope v. Liddel, 21 Beav. 183; Penny Watts, 1 Mac, & G. 150; Gomm v, Parrott, 3 Jur. N.S. 1150, % 132 EQUITY JURISPRUDENCE. it subject to all the equities which affect it in the hands of the assignee(a). 304. The rule that a bona fide purchaser without notice may buy in, or obtain for his protection an outstanding legal estate or other legal advantage, was the foundation of the equitable doctrine of tacking, that is, uniting securities given at differ- ent times, so as to prevent an intermediate purchaser from claiming a title to redeem, or otherwise to discharge one lien which is prior in date without discharging or redeeming the other liens also which were subsequent to his own title. Thus, if a third mortgagee, without notice of a second mort- gage at the time when he lent his money, purchased in the first mortgage, and thereby acquired the legal title, the second mortgagee could not redeem the first mortgage without re- deeming the third «lso. And it was no matter, that the third mortgagee had notice of the second mortgage at the time he purchased in the first, provided he had no notice at the time he advanced his money(b). The absence of notice at the time of the advance was the ground of the equity(c). The doc- trine of tacking was never favoured in this Province, and was only adop‘ed under the weight of English authorities, until abolished by the Registry Act, in 1850(u). 305. Statutory provision for the registration of deeds was made at a very early period in the history of this Province(e). The object of the Legislature in establishing a system of regis- tration, was to enable any one dealing with property from (a) Frazer v. Jones, 17 L. J. Ch. 353, 356; Manningford v. Toleman, 1 Coll. 670; Rooper v. Harrison, 2 K. & J. 108; Tord »v. White, 16 Beav. 120; Stackhouse » Countess of Jersey, 1 J. & H. 721; Cox v James, 3 D. F. & J. 264; Parker v Clarke, 30 Beav 54; Cory v. Eyre, 1 D. J. & 8.167; Phillips v. Phillips, 31 L. J. Ch. 321, 326. And see Macpherson v. Dougan, 9 Gr. 258. (b) Marsh v. Lee, 1 Ch. Ca. 162; Morrett v. Parke, 2 Atk. 52; Wortley v. Birk- head, 2 Ves. 571; Lacey v. Ingle, 2 Ph. 419; Rooper v Harrison, 2 K. & J. 86; Bates v. Johnson, John. 304; Street v. The Commercial Bank, 1 Gr. 169. And see Gordon v. Lothian, 2 Gr. 293 ; McMurray v. Burnham, 2 Gr. 289. ae c) Brace v. Duchess of Marlborough, 2 P.W. 491; Hopkinson v. Rolt, 9H. L. (d) 13 & 14 Vic. c. 63, s. 4. See also Con. Stat. U. OC. C. 89, s. 56. See sinee the Act of 1850; Hyman v. Root, 10 Gr. 340; Buckler ». Bowman, 12 Gr. 457. (e) 85 Geo. 3, u 5. CONSTRUCTIVE FRAUD. 133 time to time, to know whether it was affected by any existing deed or conveyance, and to compel the registration of so much of such deed or conveyance as would afford this know- ledge, on the penalty in default thereof of its being held void(a). 306. By the original act(b) registration was not made impera- tive, and it was only after a title became a registered one by some owner registering his deed, that deeds and wills were to be deemed fraudulent and void as against a subsequent purchaser or mortgagee for valuable consideration, unless registered before the registering of the deed or will under which such subsequent purchaser claimed title. In 1850 a new registry act(c) was passed, which made it necessary after patent from the Crown issued, to register every deed or will, under the penalty of its being held void as against subsequent purchasers(d). By the 8th section of the same act, registra tion was for the first time declared to constitute in equity notice to ali persons claiming any interest subsequent to such registry (e). 307. Notwithstanding the stringent provisions of the regis- try laws, courts of equity have long held that if a subsequent purchaser has notice, at the time of his purchase, of a prior unregistered conveyance, he shall not be permitted to avail himself of his title against that prior conveyance(/). (a) Reid v. Whitehead, 10 Gr. 446. (b) 35 Geo. 3, c. 5. (ce) 13 & 14 Vic. cv. 63. (d) In the case of a registered title, a vendor cannot make out a good title unless all the deeds are registered, Brady v. Walls, 17 Gr. 703, 704; Kitchen v. Murray, 16 U. C. C. P. 69. i (e} A person who relies for his defence on the register must be taken to have notice of the whole register, and of whatever the register would put him on enquiry respect- ing, Ford v. White, 16 Beav. 120. See Stephen v. Simpson, 15 Gr. 594. (f) Le Neve v. Le Neve, 3 Atk. 646 ; Sheldon v. Coxe, 2 Eden, 224; Forbes v. Den- iston, 4 Bro. P. UC. 189; Worsely v. De Mattos, 1 Burr. 474, 475; Eyre v. Dolphin, 2B. & B. 302; Bushell v. Bushell, 1S. & L.99; Drew v. Lord Norbury, 9 Ir. Eq. 171; Chandos 7. Brownlow, 2 Ridg. 428; Coppin v. Fernyhough, 2 Bro. C. C. 291; Toulmin v. Steere, 3 Mer. 209, 224. Express notice of an unregistered assign- ment of unpatented land has the same effect as like notice of an unregistered convey- ance after patent, Goff v. Lister, 13 Gr. 406; 14 Gr. 451. Registration is notice of all instruments registered before, as well as since registration was made notice, Vance v. Cummings, 13 Gr. 25. 134 EQUITY JURISPRUDENCE. 308. This doctrine, as to postponing registered to unregis- tered conveyances upon the ground of notice, has broken in upon the policy of the registration acts inno small degree ; for a registered conveyance stands upon a different footing from an ordinary conveyance. It has, indeed, been greatly doubted, whether the courts ought ever to have suffered the question of notice to be agitated as against a party who has duly regis- tered his conveyance. Butthey have said that fraud shall not be permitted to prevail. There is however this qualification upon the doctrine, that it shall be available only in cases where the evidence of noticeis quite satisfactory and distinct upon the point(a). 309. Constructive notice of an unregistered deed, capable of registration, will not prevail against a registered title. This was the settled doctrine of the Court of Chancery in this Province(b), and the recent Registry Acts have adopted the same rule by enacting that “priority of registration shall in all cases prevail, unless before such prior registration there shall have been actual notice of the prior instrument by the party claiming under this prior registration(c). 310. Registration of any instrument is in equity, notice to all persons claiming any interest in the land subsequent to such registry. Prior to the 13th & 14th Vic. c. 68, s. 8, regis- (a) Story, s. 398; Hollywood v. Waters, 6 Gr. 329; Foster v. Beall, 15Gr. 245; Hine v. Dodd, 2 Atk. 275 ; Jolland v. Stainbridge, 3 Ves. 485; Wallace v. Marquis of Donegal, 1 Dr. & Wal. 488 ; Wyatt». Barwell, 19 Ves. 439. See Chadwick v. Turner, L. R. 1 Chan. 310; Rolland v. Hart, L. R. 6 Chan. 678. But see Skeeles v. Shearly, 8 Sim. 156; 3 M. & C. 112; Timson v. Ramsbottom, 2 Keen, 35 ; Foster v, Blackstone, 1M. & K. 297. (0) Ferrass v. McDonald, 5 Gr. 312 ; Baldwin v. Duignan, 6 Gr. 598; Graham ». Chalmers, 7 Gr. 597 ; 9 Gr. 241; McCrumm v. Crawford, 9 Gr. 340 ; Moore v. Bank of British North America, 15 Gr. 310. And see Rice v. O’Connor, 11 Ir. Ch. 510; ap- Proved on appeal, 12 Ir. Ch. 424. In Wormald v. Maitland, 35 L. J. Ch. 69, it was laid down broadly by Vice-Chancellor Stuart that constructive notice has the same effect as against a registered title as in other cases. his decision was afterwards followed in Re Allen’s estate, Ir. R. 1 Eq. 455. But these cases will not be followed in this Province unless adopted by the Court of Error and Appeal, or the broad doctrine laid down by V.-C. Stuart receives the express sanction of a higher court in England, Moorev. Bank of British North America, 15 Gr. 319. (c) 29 Vic. c. 24,8. 75; Ont. Stat. 31 Vic. c. 20, s. 67. CONSTRUCTIVE FRAUD. 135 tration was not notice(a), but by the 29 Vic. c. 24, s. 64, it was provided that registration under that Act or any former Act shall, in equity constitute notice(b). While registration is notice of the thing registered for the purpose of giving effect to any equity accruing from it, it can be notice of any given instrument only to those who are reasonably led by the nature of the transaction in which they are engaged to examine the register with respect to it(c). Registration of an instrument not required to be registered, does not create notice(d). Toa perfect registration it is necessary that all the requirements of the Registry Acts should be complied with, and defective registration is not notice(e). 311. Prior to the Registry Act of 1865(/), it was held that the Registry Act did not affectany equitable rights or interests which could not be registered(g). By the recent Act 29 Vic. ¢. 24, however, no equitable lien, charge, or interest affecting land is to be deemed valid in any court after the Act came into operation, as against a registered instrument executed by the same party, his heirs or assigns(h). But this Act does not affect any lien or equitable interest created before the passing of the Act(i). 312. Notice may be either actual and positive, or it may be implied and constructive. Actual notice requires no defini- tion, for in that case knowledge of the fact is brought directly (a) Street v. Commercial Bank, 1 Gr. 169. (b) See Ont. Stat. 31 Vic. c. 20. (c) Boucher v. Smith, 9 Gr. 347. (d) Malcolm v, Charlesworth, 1 Keen, 63 ; Doe v. Rainsford, 10 U. C. Q. B. 236. But see Latch v. Bright, 16 Gr. 653. (e) Boucher v. Smith, 9 Gr. 355; Reid v. Whitehead, 10 Gr. 446 ; Essex v. Baugh, 1 Y. & C. 620. (f) 29 Vic. ¢. 24; Ont. Stat. 31 Vic. c. 20. - (g) Sumpter v. Cooper EE. & Ad. 226; Neve v. Pennell, 2H. & M. 187; Holmes v. Powell, 8D. M. & G. 572; Buckley v. Lanauze, L. & G. t. Plunkett, 341; Re Dris- coll, Ir. R. 1 Eq. 288 ; McMaster ». Phipps, 5 Gr. 258; Burgess v. Howell, 8 Gr. 37 ; McQuesten v. Canipbell, 8 Gr. 244; Uherry v. Morton, 8 Gr. 407 ; McCrumm v, Craw- ford, 9 Gr. 340 ; Robson v. Carpenter 11 Gr. 293; Harrison v, Armour, 11 Gr. 303 ; Bank of Montreal, v. Baker, 9 Gr. 298; Moore ». Baile of British North America, 15 Gr. 312. (h) And see Ont. Stat. 31 Vic. c. 20, s. 68. (i) McDonald v. McDonald, 14 Gr. 133. 136 EQUITY JURISPRUDENCE. home to the party. Constructive notice is in its nature no more than evidence of notice, the presumption of which is so violent, that the court will not even allow of its being contro- verted(a). Or, as has been elsewhere defined, constructive notice is knowledge imputed by the court on presumption, too strong to be rebutted, that the knowledge must have been communicated(6). 313. An illustration of this doctrine of constructive notice is where the party has possession or knowledge of a deed, under which he claims his title, and it recites another deed, there the court will presume him to have notice of the con- tents of the latter deed, and will not permit him to introduce evidence to disprove it(c). And generally it may be stated, as a rule on this subject, that where a purchaser cannot make out a title, but by a deed which leads him to another fact, he shall be presumed to have knowledge of that fact(d). Indeed, whatever is sufficient to put a party upon inquiry (that is, whatever has a reasonable certainty as to time, place, circum- stances, and persons,) is, in equity, held to be good notice to bind him(e), Thus, notice of a lease will be notice of its con- tents(f). So, if a person should purchase an estate from the owner, knowing it to be in the possession of tenants, he is bound to inquire into the estate which these tenants have, and, therefore, he is affected with notice of all the facts as to their estates(g). (a) Plumb ». Fluitt, 2 Anst. 438, per Eyre, C.B. ; Kennedy v. Green, 3 M. & K. 719; Wilde vw. Gibson, 1 H. L. 605. See. also Jones v, Smith, 1 Ha. 43; Meux ». Bell, 1 Ha. 73; West v. Reid, 2 Ha. 257. (6) Story, s. 399; Hewitt v. Loosemore, 9 Ha. 449. (c) Eyre v. Dolphin, 2 B. & B. 301. (d) 2 Fonbl. Eq. B. 3, ch. 3, s.1, note (b) Mertins v. Joliffe, Ambl. 311 ; Marr v. Ben- nett, 2 Ch. Cas. 246. But see Hamilton v, Royse, 2 S. & L., 327 ; Pilcher v. Rawlins, L. R.11 Eq. 53; L. R. 7 Chan. 259. (e) Smith ». Low, 1 Atk. 490; Ferrars v. Cherry, 2 Vern. 384; Daniels v. Davison, 16 Ves. 250; Howorth v. Deem, 1 Ed. 351; Surman v. Barlow, 2 Ed. 167; Parker v. Brooke, 9 Ves. 583; Eyre 7. Dolphin, 2 B. & B. 301. (f) Hall v. Smith, 14 Ves. 426. See James v. Lichfield, L. R. 9 Eq. 51. (g) Story, s. 400; Taylor v. Stibbert, 2 Ves. 440; Spunner v Walsh, 10 Ir. Eq. 386; Daniels 7. Davison, 16 Ves. 249, 252; Smith 7 Low, 1 Atk. 489; Allen v. An- thony, 1 Meriv. 282; Meux v. Maltby, 2 Swanst. 281; Hanbury v. Litchfield, 2M. & K. 629, 632. And see Coles v. Sims, 5D.M. & G.1; Feilden v. Slater, L, R. 7 Eq. 523; Carter v. Williams, L. R. 9 Eq. 678, CONSTRUCTIVE FRAUD. 137 314. Possession of property is not notice as against a regis- tered title, it being constructive notice only(a); and it has. been decided that it is not notice under the Registry Act of 1868(6). 315. As to the time at which one must receive notice to- affect him in equity, it is in general sufficient if it be received before he has parted with his money, or placed himself in a. position where he cannot resist the payment, as would be the case where the rights of third parties had attached(c.) And it is not indispensable to the validity of notice of an equitable: interest, that it should come from the party, or his agent. It is sufficient if it be derived aliunde ; provided it be of a cha-: racter likely to gain credence(d). In regard to the inquiry required of a party, it should be such as a prudent and care- ful man would exercise in his own business of equal im- portance(e). 316. In a great variety of cases, it must necessarily be matter of no inconsiderable doubt and difficulty to decide what circumstances are sufficient to put a party upon inquiry. Vague and indeterminate rumour or suspicion is quite too loose and inconvenient in practice to be admitted to be suffi- cient(f). But there will be found almost infinite gradations of presumption between such rumour, or suspicion, and that certainty as to facts, which no mind could hesitate to pro-. nounce enough to call for further inquiry, and to put the party upon his diligence. No general rule can, therefore, be laid (a) Waters v. Shade, 2 Gr. 464; Ferrass v. McDonald, 6 Gr. 310; McCrumm ».. Crawford, 9 Gr. 340. And see Gray v. Coucher, 15 Gr. 419. (b) Sherboneau v. Jeffs, 15 Gr. 574. (c) Collinson v. Lister, 20 Beav. 356; 7D. M. & G. 634. (d) Rawbone’s Bequest, 3 K. & J. 300; Smith v. Smith, 2 Cr. & M. 231; Lloyd v. Banks, L. R. 3 Chan. 488; 4 Eq. 222; In re Tichener, 35 Beav, 317. But see In re Brown’s Trusts, L. R. 5 Eq. 88. (e) Story, s. 4001.; Jones v. Williams, 24 Beav. 47 ; Ware v. Lord Egmont, 4 D. M. & G. 460; Ex parte Briggs, L. R. 1 Eq. 483; Smith v. Reese River Mining Co. L. R. 2 Eq. 264; Central Railway of Venezuela v. Kisch, L. R. 2H. L. 99; and see Worm-- ald ». Maitland, 35 L. J. n. 8. Ch. 69; Agra Bank v. Barry, I. R. 6 Eq. 128. (f) Sug. V. & P. [14th ed.] 755; Jolland v. Stainbridge, 3 Ves. 478. “188 EQUITY JURISPRUDENCE. -down to govern such cases. Each must depend upon its own. -eircumstances(a). 317. Formerly a purchase ot property actually in litigation, _pendente lite, for a valuable consideration, and without any ex- “press or implied notice in point of fact, affected the purchaser in the same manner as if he had such notice; and he was accordingly bound by the judgment or decree in the suit(b). “The litigating parties were exempted from taking any notice of the title so acquired ; and it was not necessary to make the ‘purchaser a party to the suit(c). Newbury v. James, 2 Mer. 446; Harrison v. Gardiner, 2 Mad. 198. (d) Lumley v. Wagner, 1 D. M. & G. 604. (e) Clements v. Welles, L. R. 1 Eq. 200; Clarkson v. Edge, 12 W. R. 518. (f) Rankin v. Huskison, 4 Sim. 13. (9) Ware v. Grand Junction Water Works Company, 2 R. & M. 470, 483; Heath- cote v. North Staffordshire Railway Company, 2 Mac. & G. 100; Lancaster and Carlisle Railway Company v. North Western Railway Company, 2 K. & J. 293. SPECIFIC PERFORMANCE. 263 commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, the Court, if it thinks fit, may award damages to the party injured, either in addition to or in substitution for such injunc- tion or specific performance.” 598. This Act which is not retrospective, does not extend the jurisdiction of the court where there is a plain common law remedy, and where the court would not have interfered before the passing of the Act(a). The court, therefore, cannot award damages, save in those cases where it has jurisdiction to decree specific performance, and in addition to or substi- tution for that remedy. Hence it has been decided that as a court of equity has no jurisdiction to compel specific perform- ance of an agreement to borrow a sum of money, it cannot award compensation or damages against the person who has refused to accepta loan of money for which he has contracted.(b) So, as the court would not compel specific performance of an agency contract, it cannot grant damages for the breach of such a contract.(c) 599. Where the court, however, has jurisdiction to grant specific performance, it may award damages for non-perform. ance of part of the contract in respect to which it could not have compelled specific performance. Thus where the plain- tiff agreed to grant a lease to the defendant, when, and so soon as he, the defendant, should have built a new house on the land, and the defendant agreed to accept such lease when required, and by a certain day to pull down an old house then standing on the land and build a new one on the site. The defendant, who was previously in the occupation of the premises, in pursuance and part performance of the agree- ment, caused the old house to be pulled down and sold the materials, and continued in possession, and paid part of the rent which accrued due, but did not proceed to build a new (a) Wicks v. Hunt, Johns. 372, 380. (6) Rogers v. Challis, 27 Beav. 175. (ce) Chinnock v. Sainsbury, 30 L. J. x. 8. Ch. 409. 264 EQUITY JURISPRUDENCE. house on the old site. On demurrer to a bill praying specific performance and damages, it was held that the plaintiff was entitled to damages for the non-building of the house, and to specific performance of the contract to accept the lease(a). CHAPTER XIX. COMPENSATION AND DAMAGES, 600. As a general proposition, courts of equity do not enter- tain jurisdiction to give redress by way of COMPENSATION or DAMAGES, for breaches of contract, and other wrongs and in- juries cognizable at law, where these constitute the sole objects of the bill(b). Wherever the suit is one merely for damages, and there is a perfect remedy at law, the foundation of equi- table jurisdiction is wanting(c). Compensation or damages ought, therefore, ordinarily to be decreed in equity only when incidental to other relief(d), or where there is no adequate remedy at law(e); or where there is some peculiar equity(/). 601. The rule has been construed so strictly, that even in cases where no remedy exists at law, a court of equity has refused to award damages. Thus, where a trustee, by a breach of trust has injured the trust property, damages were (a) Soames v. Edge, Johns. 669. (b) Lewers v. Karl of Shaftesbury, L. R. 2 Eq. 270, And’see Middleton v. Green- wood, 2D. J. & 8.145; Durell v. Pritchard, L. R. 1 Chan. 244; Hindley », Emery, L. R, 1 Eq. 52; Wedmore v. Mayor of Bristol, 11 W. R. 136; Swaine v. Great Northern Rail Co. 12 W. R. 391. (c) Clifford v. Brooke, 13 Ves. 131, 134 ; Blore v. Sutton, 3 Merits 247, 248; New- ham v. May, 13 Price, 749, 752. (d@) Newham »v. May, 13 Price, 752, (e) Ranelaugh v. Hayes, 1 Vern, 189 ; Newham vw. May, 13 Price, 752. (f) Nelson »v. Bridges, 2 Beav. 239. The court may, and in some cases does, grant damages in substitution for other relief, as the more appropriate remedy. See Senior v: Pawson, L. R. 3 Eq. 330; Martin v. Headon, L. R. 2 Eq. $25; Durell v, Pritch- ard, L, R. 1 Chan. 244; Howe v. Hunt, 31 Beay. 420; Franklinski v. Ball, 33 Beav. 560 ; Catton 7. Wyld, 32 Beav. 266. COMPENSATION AND DAMAGES. 265 refused, although, if the trustee had by the breach of trust, made profits, he would have been accountable for them(q). 602. The mode by which compensation or damages are ascertained, may be either by a reference to a master, or by directing an issue, to be tried by a jury. The latter was the most invariable course in former times, in all cases where the compensation was not extremely clear, as to its elements and amount, but the former method is now generally adopted(b). 603. Wherever compensation or damages are incidental to other relief, the jurisdiction properly attaches in equity ; for it flows, and is inseparable from the proper relief(c). Thus, where a billis brought by vendor against vendee for a specific performance, and payment of the purchase-money, equity will decree payment of the purchase-money, as incidental to the general relief, although the vendor may have a good remedy at law/(d). 604. Where specific performance is refused there is more difficulty in establishing the propriety of exercising a general jurisdiction for compensation or damages. But on one occa- sion(e), where specific performance was refused, because the vendor had rendered himself incapable of performing the contract, a decree for compensation, and reference to a mas- ter(f), was made. (a) The corporation of Ludlow v. Greenhouse, 1 Bligh, n. R. 18, 57, 58. Andsee Chapman v. Chapman, L. R. 9 Eq. 276. _(b) Denton v. Stewart, 1 Cox, 258; Greenaway v. Adams, 12 Ves 401, 402, Todd v Gee, 17 Ves, 278, 279; Watt v. Grove, 28. & L. 513. The court may now try any question with a jury instead of directing an issue to a court of common law, Con. Stat. U. C. c. 12,8. 69, And see 28 Vice. c. 17, y, 3. (c) See Todd v. Gee, 17 Ves. 278, 279; Grantv. Munt, Coop. t. Eld.173; Newham v. May, 13 Price, 752; Mortlock v. Buller, 10 Ves. 306, 315; Dyer v. Hargrave, 10 Ves. 507; Howland v. Norris, 1 Cox, 59; Halsey v. Grant, 13 Ves. 77; Forrest v. Elwes, 4 Ves. 497 ; Hedges v. Everard, 1 Eq. Abr. 18, pl, 7. But damages will not be given if the injury be trivial, Clarke v. Clark, L. R. 1 Chan. 16; Curriers’ Co. v Corbett, 13 W. R. 1056. But see Rubson v. Whittingham, L. R. 1 Chan. 442. (ad) Withy v. Cottle, 1S. & S. 174; Adderley v. Dixon, 15. & S. 607. (e) Greenaway v. Adams, 12 Ves. 401. (f) And see Denton v. Stewart, 1 Cox, 258; Sainsbury v. Jones, 5 M. & C. 1; Gwillim v. Stone, 14 Ves. 128. If the plaintiff does any act which disentitles him to specific performance he will not be entitled to damages, Collins v, Stuteley, 7 W. R. 710; Bauman v. Matthews, 4 L. T. n. 8. 784, 266 EQUITY JURISPRUDENCE. 605. Courts of equity ought not to entertain suits for com- pensation or damages, except as incidental to other relief, where the contract is such that there is an adequate remedy at law for compensation or damages. But where there is no such remedy at law, a peculiar ground exists for the interfer- ence of courts of equity to prevent irreparable mischief, or avoid fraudulent advantage being taken of the injured party. Thus, where there has been part performance of a parol con- tract, and the vendor has since sold the land to a bona fide purchaser, for value without notice, a decree for specitic per- formance would be ineffectual and the contract being parol there would be no remedy at law for compensation or dama- ges, there seems a just foundation for the exercise of equity jurisdiction(a). 606. As there is, in the present state of the authorities, some conflict of opinion, it is not possible to affirm more than that the jurisdiction for compensation or damages does not ordi- narily attach in equity, except as ancillary to specific perform- ance, or some other relief. If it attaches in other cases, it must be under very special circumstances, and upon peculiar equities, as in cases of fraud or where the party has disabled himself, by matters ex post facto, from a specific perform- ance(b), or where there is no adequate remedy at law(c). 607. Where compensation is sought by a defendant, in re- sistance or modification of the plaintiff’s claim, the maxim often prevails, that he who seeks equity shall do equity. Thus, if a plaintiff seeks the aid of the court to enforce his title against an innocent person, who has made improvements (a) Story, s. 798 ; Denton ». Stewart, 1 Cox, 258 ; Deane ». Izard, 1 Vern. 159; Todd v. Gee, 17 Ves. 273; City of London v. Nash, 3 Atk. 512, 517; Cud v. Rutter, 1 P. W. 570. : (0) See Davenport v. Ryland, L. R. 1 Eq. 302; Eastwood v. Lever, 33 L. J. Ch. 355 ; Cory v. Thames Iron Co.,11 W. R. 589. (c) Errington v. Aynesly, 2 Bro. C. ©. 341; Deane v. Izard, 1 Vern. 159; Gwillim v. Stone, 14 Ves. 129; Todd v. Gee, 17 Ves. 273. And see Betts v. Neilson, L. R.3 Chap. 429; Betts v. Gallais, L. R. 10 Eq. 392; Schotsmans v. Lancashire, &c. R._ Co., L. R. 1 Eq. 349; Jegon v. Vivian, L. R. 6 Chan. 742; Hilton v. Woods, L. R. 4 Eq. 432; Corporation of Hythe v. East, L. R. 1 Eq. 620. COMPENSATION AND DAMAGES. 267 on lands, supposing himself the absolute owner, aid will be given to him only upon terms of making compensation to the . extent of the benefit he will receive from the improvements(a). Independently of any fraud, if an account of rents and profits. is sought from an innocent person who has made improve- ments, in ignorance of his title being defective, equity in de- creeing an account, will allow him to deduct a due compen- sation for his improvements(b). So, in cases of partition be- tween tenants in common, compensation is often allowed to: one of them who has made valuable improvements(c). 608. The jurisdiction of the court with respect to compen-- sation and damages has been extended by the 28 Vic., c. 17, s. 8, which provides, that in all cases in which the court has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, the court, if it thinks fit, may award damages to: the party injured, either in addition to, or in substitution for such injunction or specific performance, and such damages may be ascertained in such manner as the court may direct, or the court may grant such other relief as it may deem just. 609. With reference to the construction and application of the corresponding Act in England(d), the following points. seem settled: The statute does not extend the jurisdiction of the court to cases where there is a plain common law remedy, and where before the statute the court would not have inter- (a) Cawdor v. Lewis, 1Y. & C., Ex. 427 ; Pilling v. Armitage, 12 Ves. 84 ; Thornton ».. Ramsden, 4 Giff. 519; Ramsden v. Dyson, L. R.Jl H. L. 129; Powell v, Thomas, 6 Ha.. 300; Jackson v. Cator, 5 Ves. 688; Dann v. Spurrier, 7 Ves. 231; Shannon v. Brad- street, 1S. & L. 73. And see Cooper v. Phibbs, L. R. 2H. L. 166; Bevis v. Boulton,. 7 Gr. 39. (6) And see McLaren v. Fraser, 17 Gr. 567 ; Gummerson v. Banting, 18 Gr. 516. As to the mode of estimating the improvements, see Morley v. Matthews, 14 Gr. 555 ;. ya v. Robertson, 15 Gr. 176 ; Smith x. Bonnisteel, 13 Gr. 35; Mill v». Hill, 3 H. . 869. (c) Story v. Johnson, 1 Y. & C. Ex. 538; 2 ¥. & C. Ex. 586; Biehn v. Biehn, 18 Gr. 497. (d) 21 & 22 Vie., c. 27. 268 EQUITY JURISPRUDENCE. fered(a). That where a plaintiff comes to the court for the specific performance of a contract which cannot be performed at all, damages cannot be given in lieu of specific perform- ance(b). So, again, there can be no relief in equity where a bill is filed for damages and damages only(c). And where the court has jurisdiction to compel specific performance of a part -of a contract, it has also power under the statute to award damages for the breach of another part of the contract in re- speet of which it could not have compelled specific perform- ance(d). CHAPTER XX. INTERPLEADER. 610. The remedy by INTERPLEADER at law had avery narrow ‘range, and existed only where there was a joint bailment by both claimants(e). 611. The jurisdiction in equity, to compel an interpleader is properly applied to cases where two or more persons ‘whose titles are connected by reason of one being derived from the other, or of both being derived from a common source, severally claim the same thing by different titles, or in separate interests, from another person, who, not claiming any title or interest therein himself, and not knowing to which of the claimants he ought of right to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties. He therefore applies toa court of equity to protect him, not only from being compelled to pay or deliver the thing (a) Wicks v. Hunt, Johns. 380. (6) Middleton v. Magnay, 2 H. & M. 236; Rogers v. Challis, 27 Beav. 175; Chin- -nock v, Sainsbury, 30 L. J. Ch. 409. (c) Middleton v. Greenwood, 2D. J. & S. 145. (a) Snell’s Eq, 475, (e) Crawshay v. Thornton, 2M. & C. 21. INTERPLEADER. 269 claimed to both the claimants, but also from the vexation at- tending upon the suits, which are, or may be, instituted against him(a). 612. If an interpleader at law will lie, and would be effec- tual for the protection of the party, the jurisdiction in equity fails(b). So, if the party seeking the aid of the court claims an interestiin the subject-matter, as well as the other parties, there is no foundation for the exercise of the jurisdiction, for he has other remedies(c). 618. The true ground upon which the plaintiff comes into equity, is, that, claiming no right in the subject-matter himself, he is, or may be, vexed by having two legal or other processes, by different persons, against him at the same time. He has, therefore, an obvious equity, to insist that those persons, should settle the contest among themselves, and not with him or at his expense(d). If their respective titles are doubtful, there is the more reason why he should not be harrassed by suits to ascertain and fix them. 614. It is not necessary, to entitle the party to come into equity, that the titles of the claimants should be both purely (a) Moore v. Usher, 7 Sim. 383 ; Jones v. Thomas, 2 Sm. & Giff. 186; Reid v. Stearn, 6 Jur. N. 8. 267; Hoggart v. Cults, Cr. & P. 197. Andsee Glyn v. Duesbury, 11 Sim.. 147 ; Pearson v. Cardon, 2R. & M. 613. Generally speaking, the bill should he filed before any judgment at law settling the rights of the respective parties to the property in question ; the object of the bill being to protect the complainant from the vexation attendant upon defending all the suits that may be instituted against him for the same property. Cornish v. Tanner, 1 Y. & J. 333. But a bill of interpleader may be filed after: a verdict at law, if the effect of the action at law was merely to ascertain the damages due the plaintiff at law who was a defendant in the equity suit, Hamilton v. Marks, 5 D. & Sm. 638. Where a person in good faith, but from wrong information, replevied property which did not belong to him, and after a verdict against him, a new claimant insisted that the property was his, and threatened an action, this was held not a case for- interpleader, Fuller v. Patterson, 16 Gr. 91. (6) Hamilton v. Marks, 5D. & Sm. 638. (c) Langston v. Boylston, 2 Ves. 103, 109; Angell v. Hadden, 15 Ves. 244; Mitchell v, Hayne, 2 S, & 8. 63; Aldrich v. Thompson, 2 Bro. C. C. 149; Slingsby v. Boulton, 1V. & B. 334; And where two claimants both demand the same property of the plain- tiff, and he has done acts tending to the recognition of the claim of both, he cannot. maintain a bill of interpleader against them, Sablicich v. Russell, L. R. 2 Eq. 441. (d) Mitchell v. Hayne, 2 8. & S.63; Moore v. Usher, 7 Sim. 383; Langston v. Boylston, 2 Ves. 109. And see Davidson % Douglas, 12 Gr. 181. 270 EQUITY JURISPRUDENCE.- legal. It is sufficient to found the jurisdiction that one title is ‘legal and the other is equitable(a). Indeed where one of the claims is purely equitable, it seems indispensable to come into equity, for, in such a case, there can be no interpleader at law (b). Thus, if a debt or other claim has been assigned, and a controversy arises between the assignor and the assignee res- pecting the title, a bill of interpleader may be brought by the debtor, to have the point settled, to whom he shall pay(¢). 615. Where the title of all the claimants is purely equitable, there is a still broader ground to entertain bills in the nature of a bill of interpleader. Nor is it necessary that a suit shall have been actually commenced by either or both of the con- flicting claimants, against the party, either at law or in equity, it is sufficient that a claim is made against him, and that he is in danger of being molested by conflicting rights(d), 616. In cases of adverse independent titles, not derived from the same common source,the party holding the property must defend himself as well as he can at law ; and he is not entitled to the assistance of a court of equity ; for that would be to as- sume the right to try merely legal titles upon a controversy between different parties, where there is no privity of contract between them and the third person, who calls for an inter- pleader(e). 617. Itis asettled rule of law, and of equity also, that an agent shall not be allowed to dispute the title of his principal to pro- perty which he has received from or for his principal, or to say that he will hold it for the benefit of a stranger( Ff). Butthis doc- (a) Morgan v. Marsack, 2 Mer. 107; Smith v Hammond, 6 Sim, 10; Crawford ». Fisher, 10 Sim. 479. See Hamilton v. Marks, 5 D. & Sm. 638. (8) Duke of Bolton v. Williams, 4 Bro. C. C. 309 ; 2 Ves. 151, 152. (c) See Wright v. Ward, 4 Russ. 215; Lowndes v. Cornford, 18 Ves. 299. (a) Langston v. Boylston, 2 Ves. 107 ; Morgan v. Marsack, 2 Mer. 107; Alnete » Bettam, Cary, 65, 66; Angell v, Hadden, 15 Ves. 244; s. c.16 Ves. 202; Farebrother v. Prattent, 5 Price, 303. As to the affidavit of no collusion, which is required from the plaintiff, see Manby v. Robinson, L. R. 4 Chan. 347. (e) Pearson v. Cardon, 2 R. & M. 606, 610; Crawshay v. Thornton, 2M. & C. 1, 23) (f) Dixon v. Hamond, 2B. & Ald. 313, 314; Cooper v. Te Tastet, 1 Tamlyn, 177; Nickolson v. Knowles, 5 Mad. 47; Smith v. Hammond, 6 Sim. 10; Pearson v. Cardon, 2K. & M. 606, 609, 610, 612; Crawshay v. Thornton, 7 Sim. 391; s.c.2M.&C.1. And see Roberts v. Bell, 7 El. & Bl. 323. INTERPLEADER. 271 trine is to be taken with its proper qualifications. For, if the principal has created an interest or a lien on the funds in the hands of the agent, in favor of a third person, and the nature and extent of that interest or lien is in controversy between the principal and such third person, there the agent may, for his own protection, file a bill of interpleader to compel them to litigate and adjust their respective titles to the fund(a). 618. A tenant cannot file a bill of interpleader against his landlord on notice of ejectment by a stranger under an ad- verse title to that of the landlord(}). But equity will, even in the case of a tenant, grant relief if the persons claiming the same rent claim in priority of contract or tenure, as in the case of a mortgagor and mortgagee; of atrustee and cestui que frust, or where an estate is settled to the separate use of a mar- ried woman, of which the tenant has notice, and the husband has been in receipt of the rent(c). In cases of this sort, the tenant does not dispute the title of his landlord, but he affirms that title, and the tenure and contract by which the rent is payable, and puts himself upon the mere uncertainty of the person to whom he is to pay the rent. 619. A bill of interpleader could not be filed by a sheriff who seized goods in execution, on account of the existence of ad- verse claims to the property. This arose from the principle involved in the definition of interpleader, “ where two persons claim of a third the same debt, or the same duty ;” and the sheriff, as to one of the defendants, admits himself a wrong- doer, and may be therefore liable to him for damages, as well as for the goods themselves(d). It seems, however, that courts of equity will allow a bill of interpleader to be filed by a (a) Smith o. Hammond, 6Sim. 10; Wright v. Ward, 4 Russ. 215, 220; Crawshay v. Thornton, 7 Sim. 391; 2M. & C. 1, 21; Crawford v. Fisher, 1 Ha. 436, 440. (b) Dungey v. Angove, 2 Ves. 310; Cook v. Rosslyn, 1 Giff, 167. (c) Aldrich v. Thompson, 2 Bro. C. ©. 149; Hodges ». Smith, 1 Cox, 357 ; Cow- tan v. Williams, 9 Ves. 107; Clarke v. Byne, 13 Ves. 383 ; Johnson v. Atkinson, | 3 Anstr. 798. And see Stephens v. Callanan, 12 Price, 158; Jew v. Wood, Cr. & P. 184. (d) Slingsby v. Boulton, I Vv. & Bz. 335, 272 EQUITY JURISPRUDENCE. sheriff where there are conflicting equitable claims on the property which he has seized(a). CHAPTER XXI. BILLS QUIA TIMET. 620. Bills QUIA TIMET are in the nature of writs of preven- tion, to accomplish the ends of precautionary justice(b). They are ordinarily applied to prevent wrongs or anticipated mis- chiefs, and not merely to redress them when done. The party seeks the aid of a court of equity, because he fears (Quia timet) some future probable injury to his rights or interests, and not because an injury has already occurred, which requires com- pensation or other relief. The manner in which this aid is given by courts of equity is, of course, dependent upon cir- cumstances. They interfere jsometimes by the appointment of a receiver to receive rents or other income, sometimes by an order to pay a pecuniary fund into court, sometimes by directing security to be given, or money to be paid over, and sometimes by the mere issuing of an injunction or other reme- dial process, thus adapting their relief to the precise nature of the particular case, and the remedial justice required by it(c). 621. In regard to equitable property, the jurisdiction is applicable equally where there is a present right of enjoyment, and where the right of enjoyment is future or contingent. The object in all cases is, to secure the preservation of the property to its appropriate uses and ends; and the interference (a) Tufton v. Harding, 6 Jur. n. s. 116; Hale v. Saloon Omnibus Co. 4 Drew. 492; Dutton v. Furness, 12 Jur. x. s. 386. The rights and remedies of sheriffs in cases of conflicting claims to goods seized under execution are regulated by Con. Stat. U. C. c. 30, 8. 8, et seq. And see as to executions issued from the Court of Chancery, Con, Stat. U. C. c. 24, 8, 19. 6) 1 Mad. Ch. Pr. 178, 179; Viner, Abr. Quia timet, A. and B. c) Story, s. 826; Jeremy Eq. Jurisd. B. 1, ch. 7, a8, 1,2; B. 3, ch. 2,9.2 BILLS QUIA TIMET. 273 of a court of equity becomes indispensable wherever there is danger of its being converted to other purposes, or diminished, or lost by gross negligence. It will, accordingly, take the fund into its own hands, or secure its due management and appropriation, either by the agency of its own officers or otherwise. Thus, if property in the hands of a trustee for certain specific uses or trusts, either expressed or implied, is in danger of being diverted or squandered, to the injury of any claimant having a present or future fixed title thereto, the administration will be duly secured by the court, according to the original purposes, in such a manner as the court may deem best, as by the appointment of a receiver, or by payment of the fund, if pecuniary, into court, or by requiring security for its due preservation and appropriation(a). 622. The same principle is applied to the cases of executors and administrators, who are treated as trustees of the personal estate,of the deceased. If there is danger of waste of the estate, or collusion between the debtors of the estate and the executors or administrators, whereby the assets may be sub- tracted, courts of equity will interfere and secure the fund; and, in the case of collusion with debtors, they will order the latter to pay the amount of their debts into court(0). 623. A receiver, when appointed, acts for the benefit and on behalf of all the parties, and not for the plaintiff, or one defendant only(c). A receiver may be granted in any case of equitable property. And where there are creditors, annui- tants, and others, some of whom are creditors at law, claiming under judgments, and others are creditors claiming upon equitable debts; if the property be of such a nature, that if legal, it may be taken in execution, it may, if equitable, be put into the possession of a receiver, to hold the same, and apply the profits under the direction of the court, for the bene- (a) Story, s. 827. (0) Story, s. 828 ; Elmsley. x. Macaulay, 3 Bro. C. C. 624; ad v, Allen, 2 Atk, 213 ; Utterson v. Mair, 4 Bro. C. C. 277. (c) Davis v. Duke of Marlborough, 1 Swanst. 83; 2 Swanst. 125; Simpson v. Ot- tawa & Prescott aa Co. 1 Chan. Cham. R. 99. 1 274 EQUITY JURISPRUDENCE. fit of all the parties, according to their respective rights and priorities(a). _ 624. The same rule applies to cases where the property is legal, and judgment creditors have taken possession of it under writs of elegit; for it is competent for the court to appoint a receiver in favour of annuitants and equitable creditors, not disturbing the just prior rights, if any, of the judgment credi- tors(b). Hence, the appointment of a receiver, in cases of this sort, is often called an equitable execution. 625. Upon the appointment of a receiver of the rents and profits of real estate, if tenants are in possession they may be compelled to attorn; and the court thus becomes virtually, pro hac vice, the landlord(c). ‘The appointment of a receiver, generally entitles him to possession of the premises, but it does not, in all cases, amount to a turning of the other party out of -possession. In some cases, as in the case of an infant’s estate, the receiver's possession is that of the infant. But where the _rights of the different parties in the suit are adverse, the pos- session of the receiver is treated as the possession of the party who ultimately establishes his right to it. The receiver, however, cannot, except by the authority of the court, proceed in ejectment against the tenants(d), nor will the possession of. the tenants be ordinarily disturbéd by the court, where a re- ‘ceiver is appointed. But, although not parties to the suit, they may, and in certain cases will be compelled to attorn to the ‘receiver(é). 626. A receiver, when in possession, has very little discre- (a) Davis v. Duke of Marlborough, 2 Swanst. 125, 135, 139, 145, 146, 173. (6) Davis v. Duke of Marlborough, 1 Swanst. 83; 2 Swanst. 125, 135, 139, 140, 141, 145, 173 ; White v. Bishop of Peterborough, 3 Swanst. 117,118. And see Munns», Isle of Wight Rail Co. L. R. 5 Chan. 415; Sollory v. Leaver, L. R. 9 Eq. 22; Riches ». Owen, L. R. 3 Chan. 820; Eyton v. Denbigh &c. Rail Co. L. R. 6 Eq. 14, 488; Preston - », Corporation of Great Yarmouth, L. R. 7 Chan. 655. (c) Sharp v. Carter, 3 P. W. 379. Similar rights and incidents belong to cases of se- questration, Angel v. Smith, 9 Ves. 338; Silver ». Bishop of Norwich, 3 Sw. 112, noté, : ; i (d) Wynn». Lord Newborough, 3 Bro. C. C. 88; s.c. 1 Ves. 164, (e) Simmonds v. Lord Kinnaird, 4 Ves. 747; Reid v, Middleton, T. & R. 455; Hob- son vt Sherwood, 19 Beav. 575; Hobhouse v. Holcombe, 2 D. & Sm. 208. _ BILLS QUIA TIMET. ONS tion allowed him, but must apply, from time to time, to the court for authority to do such acts as may be beneficial to the estate. Thus, he is not at liberty to bring or to defend actions, or to let the estate, or to lay out money, unless by the special leave of the court(a). 627. The possession of a receiver cannot be disturbed, even by an ejectment under an adverse title, without the leave of the court, for his possession is deemed the possession of the court, and the court will not permit itself to be made a suitor in a court of law(o). 628. The appointment of a receiver rests in the sound dis- cretion of the court(c); and he is, when appointed, treated as virtually an officer and representative of the court, and sub-. ject to its orders(d). Lord Hardwicke considered this power of appointment to be of great importance and most beneficial tendency ; and he significantly said: “It is a discretionary power, exercised by the court, with as great utility to the sub- ject as any authority which belongs to it; andit is provisional only, for the more speedy getting in of a party’s estate, and securing it for the benefit of such person who shall appear to be entitled ; and it does not at all affect the right(e).” 629. In cases of conflicting legal and equitable debts and charges, it is a common course to appoint a receiver, for the benefit of allconcerned. And where an estate is held by a party, under a title obtained by fraud, actual or constructive, a receiver will be appointed(/). (a) See Re Ormsby, 1 B. & B. 189; Malcolm v. O’Callaghan, 3 M. & C.52; Bristowe v. Needham, 2 Ph. 190; Thomas ». Torrance, 1 Chan. Cham. R. 9; Simpson ». Otta- wa & Prescott Rail Co. 1 Chan. Cham. R. 337; Baldwin v. Crawford, 2 Chan. Cham. R. 9. (b) Angel v. Smith, 9 Ves. 335; Russell ». Hast Anglian Rail Co. 3 Mac. & G. 104; Bryan v. Cormick, 1 Cox, 422; Anon, 6 Ves. 287; Ames v, Birkenhead Dock Trustees, 20 Beav. 332; Bank of British North America, v. Heaton, 1 Chan. Cham. R. 175. (c) Skip v. Harwood, 3 Atk. 564; Owen v. Homan, 3 Mac. & G. 378. (@ Angel v. Smith, 9 Ves. 335; Hutchinson v. Massareene, 2 B. & B. 55. (e) Skip », Harwood, 3 Atk. 564. {f) Story, s. 834; Huguenin v. Baseley, 13 Ves. 105; Stitwell v. Williams, 6 Mad. 8, C. Stitwell v. Wilkins, Jac. 280. 276 EQUITY JURISPRUDENCE, 630. But it is not infrequent to ask for the appointment of a receiver, against a party who is rightfully in possession, or who is entitled to the possession of the fund, or who has an in- terest in its due administration. In such cases, courts of equity pay a just respect to such legal and equitable rights and inter- ests of the possessor of the fund, and do not withdraw it from him by the appointment of a receiver, unless the facts, averred and established in proof, show that there has been an abuse, or there is danger ofabuse, on his part. For the rule of such courts is not to displace a bona fide possessor from any of the just rights attached to his title, unless there be some equitable ground for interference(a). 631. Thus executors and administrators are by law intrusted with authority to collect and administer the assets of the deceased, and courts of equity will not interfere with their management and administration of such assets upon slight grounds(b). When, therefore, the appointment of a receiver is sought against an executor or administrator, it is necessary to establish by suitable proofs, that there is some positive loss, or danger of loss, of the funds, as, for instance, some waste or misapplication, or some apprehended danger from the bank- ruptcy, insolvency, or personal fraud, misconduct or negligence of the executor or administrator(c). 632. Where there are several incumbrances on an estate, as the first ncumbrancer is entitled to possession, and the re- ceipt of the rents and profits, equity will not deprive him of such possession and profits unless upon sufficient cause shown (d). Butif he is not in possession, and does not desire it, or if he has been paid off, or refuses to receive what is due him, a re- ceiver may be appointed upon the application of a subsequent (a) Story, s. 335. See Tyson v. Fairclough, 28. & S. 142. (b) And see In Re Ferrior, L. R. 3 Chan. 175; Hitchen v. Birks, L. R. 10 Eq. 471. (c) Poverty alone has been held not a sufficient ground, Howard ». Papera, 1 Mad. 142. But see Langley v. Hawk, 5 Mad. 46; Middleton v. Dodswell, 13 Ves. 266 ; Glad- don v, Stoneman, 1 Mad. 143, note; Scott v. Becher, 4 Price, 346 ; Mansfield ». ‘Shaw, 3 Mad. 100; Harrold v. Wallis, 9 Gr. 443. (a) Rowe v. Wood, 23. & W. 554, 557; Berney v. Sewell, 1J. & W. 649; Quarrell - ». Beckford, 13 Ves. 377; Codrington vy. Parker, 16 Ves. 469. “ BILLS QUIA TIMET. QT7 incumbrancer(a). But where the court acts thus in favour of subsequent incumbrancers, it is cautious not to disturb prior rights or equities; and, therefore, before it acts finally, it will endeavour to ascertain the priorities and equities of all parties, and then it applies the fands, which are received, according to such priorities and equities(b). 633. So, where tenants for life, or in tail, neglect to keep down the interest due upon incumbrances upon the estates, equity will appoint a receiver to receive the rents and profits, in order to keep down the interest, for this is a mere act of justice to the incumbrancers, and also to those who may be otherwise interested in the estates(c). 634. Although equity will not appoint a receiver, except upon special grounds, yet there are cases in which it will inter- pose, and require money to be paid into court by a party who stands in the relation of a trustee to the property, without any ground being laid to show that there has been any abuse or any danger to the fund. Thus, in cases of suits by creditors, or legatees, or distributees, against executors or administrators for a settlement of the estate, if the executors or administrators, by their'answers, admit assets in their hands, and the court takes upon itself a settlement of the estate, it will direct the assets to be paid into court(d). §35. The general rule, upon which courts of equity proceed in requiring money to be paid into court, is this, that the party, who is entitled to the fund, is also entitled to have it secured. And thistule is equally applicable where the plaintiffs, seeking the payment, are solely entitled to the whole fund, and where (a) Bryan v, Cormick, 1 Cox, 422; Norway v. Rowe, 19 Ves. 153; White». Bishop of Peterborough, 3 Swanst. 109. See Sollory v. Leaver, L. R. 9 Eq. 22; Hiles ». Moore, 15 Beav. 175 ; Rhodes v. Mostyn, 17 Jur. 1007 ; Aikinsv. Blain, 13 Gr. 646. (0) Davis v. Duke of Marlborough, 2 Swanst. 145, 149. 1 Swanst. 74; Metcalfe v. Archbishop of York, 1 M. & C. 547. (c) Story, s. 838; Giffard v. Hart, 15S. & L. 407, note ; Bertie v. Lord Abingdon, 3 Meriv. 560. Andsee Gresley v. Adderley, 1 Swanst. 579, and note. (d) Story, s. 839 ; Strange v. Harris, 3 Bro. C. C. 365 ; Blake v. Blake, 2S. & L. 26 ; ‘Yare v. Harrison, 2 Cox, 377. And see Leigh v. Macaulay, 1 Y. & C. Hx. 260; Bow- ‘sher v. Watkins, 1 R. & M. 277. 278 EQUITY JURISPRUDENCE. they have acquired such an interest in the whole fund, together with others, as entitles them, on their own behalf and the be- half of others, to have the sum secured in court(@). 636. The preceding remarks are principally (but not exclu- sively) applicable to cases of equitable property, whether the right of enjoyment thereof be present, future, or contingent. In regard to legal property, where the right of enjoyment is present, the legal remedies will be generally found sufficient for the protection and vindication of that right. But where the right of enjoyment is future or contingent, the party enti- tled is often without any adequate remedy at law for any injury which he may in the meantime sustain by the loss, destruction, or deterioration of the property, in the hands of the party entitled to the present possession of it(d). 637. By the ancient common law, there could in general be no future right of property, created in personal goods and chattels, to take place in expectancy, for they were considered of so transitory a nature, and so liable to be lost, destroyed, or otherwise impaired, that future interests in them were not treated as of any account(c). An exception was permitted, at an early period, as to goods and chattels given by will in re- mainder, after a bequest for life. But that was at first allowed only where the use of the goods or chattels, and not the goods or chattels themselves, was given to the first legatee ; the pro- perty being supposed to continue all the time in the executor of the testator(d). That distinction has since been disregarded ; and the limitation in remainder is now equally respected, whether the first legatee takes the use or the goods and chat- tels themselves for life(e). (a) See Leigh ». Macaulay, 1 Y. & C. Ex. 260; Bowsher v. Watkins, 1 R. & M. 277; Gedge v. Trail, 1 R. & M. 281, note ; Freeman v. Fairlie, 3 Meriv. 29, 30 ; Cruikshanks v, Roberts, 6 Mad, 104 ; Johnstonv., Aston, 1S. & S.73; Rothwell v. Rothwell, 28. & §, 217 ; Orrok v. Binney, Jac. 523, (b) Story, s. 843; 1 Eq. Abridg. 360, pl. 4. (c) 2 Black. Comm, 398 ; 1 Eq. Abridg. pl. 4. (d) Hyde v. Parrat, 1 P. W.1; Tissen v Tissen, 1 P. W. 502. (e) Story, s. 844; Anon., 2. Freem. 145; id. 206; Hyde v. Parratt, 1 P. W. 1, 6; Upwell v. Halsey, 1 P. W. 651; Vachel ». Vachel, 1 Chan. Cas. 129, 130; Foley v. Burnell, 1 Bro. C. C. 274, 278; Co. Litt. 20 (a). See Re Smith’s will, 20 Beav. 197. BILLS QUIA TIMET. 279 638. In all cases of this sort, where there is a future right of enjoyment of personal property, courts of equity will now in- terpose and grant relief upon a bill Quia timet, where there is any danger of loss or deterioration, or injury to it in the hands of the party entitled to the present possession(q). 639. Indeed, the doctrine is now well established, that the bequest of the use of the residue of the personal estate of the testator to alegatee for life, or for a shorter period, with a be- quest over to other legatees, does not give the legatee for life, or fora shorter period, the right to the possession of the fund in the meantime. The executor is entitled to retain the fund in his own hands, and to pay over the income to the legatee for life, or for a shorter period, as it accrues from time to time(b). 640. If personal chattels are bequeathed to A. for life, re- mainder to B., A. will be entitled to the possession of the goods, upon signing and delivering to the executor an inventory of them, admitting their receipt, expressing that he is entitled to them for life, and that afterwards they belong to the person in remainder(c). The old practice was to require the tenant for life to give security for the protection of the remainder-man, but such security is not required unless a case of danger is shown(d). 641. Another instance: of the application of the remedial jus- tice of courts of equity by a bill Quia timet is in cases of sureties of debtors and others. Thus, ifa surety, after the debt has become due, has any apprehension of loss or injury from the delay of the creditor to enforce the debt against the principal debtor, he may file a bill of this sort to compel the debtor to discharge the debt or other obligation, for which the surety is responsible(e). (a) Story, s. 845. And see Batten v. Earnley, 2 P. W. 163 ; Slanning v. Style, 3P. W. 336, 337. (b) Story, s. 845 a. And see Johnson v, Mills, 1 Ves. Sen. 282. _(¢) Slanning v. Style, 3P. W. 336 ; Leeke v. Bennett, 1 Atk. 471; Bill v. Kinaston, 2 Atk. 82. (a) Foley v. Burnell, 1 Bro. C. C. 279; Conduitt v. Soane, 1 Coll. 285. (e) Nisbet v. Smith, 2 Bro. C. ©. 581; Ranelaugh v. Hayes, 1 Vern. 190; Antrobus v, Davidson, 3 Mer. 569. 280 EQUITY JURISPRUDENCE. CHAPTER XXII. BILLS OF PEACE. 642, BILLS oF PEACE sometimes bear a resemblance to bills Quia timet. The latter are, however, distinguishable from the former in several respects, and are always used as a preven- tive process, before a suit is actually instituted, whereas bills of peace, although sometimes brought before any suit is insti- tuted to try aright, are most generally brought alee the right has been tried at law(a). 643. A bill of peace is a bill brought to establish and per- petuate a right, which, from its nature, may be controverted by different persons, at different times, and by different actions; or, where separate attempts have already been unsuccessfully made to overthrow the same right, and justice requires that the plaintiff should be quieted in the right, ifit is already suf- ficiently established, or if it should be sufficiently established under the direction of the court(b). The obvious design of such a, bill is to procure repose from perpetual litigation, and, therefore, it is justly called a bill of peace. 644. One class of cases, to which this remedial process is properly applied, is, where there is one general right to be established against a great number of persons. It may also be resorted to where one person claims or defends a right against many, or where many claim or defend a right against one(c). Iu such cases, courts of equity interpose to prevent multiplicity of suits(d) ; for, as each separate party may sue, or may be sued, in a separate action at law, and each suit would only decide the particular right in question between (a) Mitf. Eq. Pl. 145, 148; Co. Litt. 100 a. (6) See Teynham v. Herbert, 2 Atk. 483. (c) Teynham v. Herbert, 2 Atk. 484; Corporation of Carlisle v. Wilson, 13 Vee. 276 ; Duke of Norfolk v. Meyers, 4 Mad. 83; Weale ». West Middlesex Waterworks Co. 1 J. & W. 369. (2) Ewelme Hospital v. Andover, 1 Vern. 266 ; Hanson v. Gardner, 7 Ves. 309, 310; Ware v, Horwood, 14 Ves. 32, 33; Dilly v. Doig, 2 Ves. 486. BILLS OF PEACE. 281 _ the plaintiff and defendant in that action, litigation might be- come interminable(q). 645. Bills of this nature may be brought by a lord against tenants for an encroachment under colour of a common right ; or by tenants against the lord for disturbance of a common right ; by a party in interest to establish a toll due by a cus- tom, or to establish the right to profits of a fair, there being several claimants(b). 646. So, a person who has possession, and claims a right of fishery for a considerable distance on the river, to which the riparian proprietors set up several adverse rights, may have a bill of peace against all of them to establish his right, and quiet his possession(c). So, it will lie to establish a duty, claimed by a municipal corporation against many persons, although there is no privity between them(d). 647. But to entitle a party to maintain a bill of peace, it must be clear that there is a right claimed, which affects many persons, and that a suitable number of parties in interest are brought before the court; for, if the right is disputed between two persons only, not for themselves and all others in interest, but for themselves alone, the bill will be dismissed ; for it can- not then conclude any persons, but the very defendants(e). 648. Courts of equity will not, upon a bill of this nature, de- cree a perpetual injunction for the establishment or the en- (a) Story, s. 854. (6) How v. Tenants of Bromsgrove, 1 Vern. 22; Ewelme Hospital v. Andover, 1 Vern. 266; Pawlet v. Ingres, 1 Vern. 308; Brown v. Vermuden, 1 Ch. Cas. 272 ; Rudge v. Hopkins, 2 Eq. Abridg. 170, pl. 27; Conyers v. Abergavenny, 1 Atk. 284, 285 ; Poore v. Clark, 2 Atk. 515; Weeks v. Staker, 2 Vern. 301; Arthington v. Fawkes, 2 Vern. 356 ; Corporation of Carlisle ». Wilson, 13 Ves. 279, 280 ; Hanson v. Gardiner, 7 Ves. 805, 309, 310 ; Duke of Norfolk v. Meyers, 4 Mad. 117. (c) Mayor of York v. Pilkington, 1 Atk. 282; Teynham v. Herbert, 2 Atk. 483. See New River Company v. Graves, 2 Vern. 431. (d) City of London v. Perkins, 3 Bro. P. C. 602 ; 1 Mad. Pr. Ch. 138, 139; Mayor of York v. Pilkington, 1 Atk. 284 ; Teynham v. Herbert, 2 Atk. 483; Middleton v. Jackson, 1 Ch. Rep. 18 ; Popham v. Lancaster, 1 Ch. Rep. 51; Cowper v. Clerk, 3 P. W. 157 ; Powell v. Powis, 1 Y. & J. 159. (e) Story, s. 857; Disney v. Robertson, Bunb. 41; Cowper v. Clerk, 3 P. W. 157; Welby v. Duke of Rutland, 2 Bro: P. C. 39; Weller v. Smeaton, 1 Bro. C, C. 572. 282 EQUITY JURISPRUDENCE. joyment of the right of a party, who claims in contradiction to a public right, as if he claims an exclusive right to a highway, or toa common navigable river, or an exclusive right to a rope- ferry across a river, for it is said, that this would be to enjoin all the people of the country(a). 649. Bills of peace are also ordinarily applied to cases where the plaintiff has, after repeated and satisfactory trials, estab- lished his right at law, and yet is in danger of further litiga- tion and obstruction to his right from new attempts to contro- vert it. Under such circumstances, courts of equity interfere, and grant a perpetual injunction to quiet the possession of the plaintiff, and to suppress future litigation of the right. This exercise of jurisdiction was formerly much questioned. Lord Cowper, in a celebrated case, where the title to land had been five several times tried in an ejectment, and five verdicts given in favour of the plaintiff, refused to sustain the jurisdiction for a perpetual injunction. But his decision was overruled by the House of Lords, and a perpetual injunction was decreed upon the ground that it was the only adequate means of sup- pressing oppressive litigation and irrepar able mischief(b. And this doctrine has ever since been adhered to. CHAPTER XXIII. INJUNCTIONS. 650. A WRIT OF INJUNCTION may be described to be a judi- cial process, whereby a party is required to do or to refrain from doing a particular thing, according to the. exigency of (@ Story, s. 858; Hilton ». Lord Scarborough, 2 Eq. Abridg. 171, pl. 2; Letton »v. Goodden, L. R. 2 Eq. 123. ‘ (2) Story, s, 859; Earl of Bath v. Sherwin, Prec. Ch. 261 ; 10 Mod, 1; 4 Bro, P.C. 373 ; Leighton v. Leighton, 4 P. W. 671, 672; and see Devonsher 2. Newenham, 28. & L. 208, 209; Teynham v. Herbert,.2 Atk. 483 ; Earl of Darlington v. Bowes, 1 Ed. 270; Weller v. Smeaton, 1 Cox, 102; 1 Bro. CG. C. 573. INJUNCTIONS. 283: the writ (a). The process, however, is rather preventive than restorative, although it is by no means confined to the former object(b). It seeks to prevent a meditated wrong more often than to redress an injury already done. It is not confined to: cases falling within the concurrent jurisdiction of the court; but it applies equally to cases belonging to its exclusive and. auxiliary jurisdiction(c). 651 The writ of injunction is peculiar to courts of equity, although there are some cases where courts of law may exer- cise analogous powers(d). The cases, however, to which these legal processes are applicable are so few, and so inadequate for the purposes of justice, that the processes themselves have fallen into disuse, and almost all the remedial justice of this. sort is now administered through the instrumentality of courts of equity. The jurisdiction in these courts, then, has its true origin in the fact, that there is either no remedy at all at law, or the remedy is imperfect and inadequate. The exercise of the jurisdiction is, however, a matter resting on the sound discretion of the court(e). 652. In treating of the jurisdiction, cases of injunctions to- stay proceedings at law, to restrain vexatious suits, to restrain the alienation of property, to restrain waste, to restrain nui- sances, to restrain trespasses, and to prevent other irreparable mischiefs will chiefly occupy attention. Those, however, are far from being all the cases in which this species of equitable interposition is obtained. 653. Injunctions to stay proceedings at law, are sometimes. (a) Bradbury v. Manchester Sheffield &c. Rail Co. 15 Jur. 1167. (b) Com. Dig. Chan. D. 11,13; Gilb. Forum Roman ch. 11, [p. 192, 194. As to enforcing covenants by injunction, see Catt v. Tourle, L. R. 4 Chan. 654, (c) Stribley », Hawkie, 3 Atk. 275; Hugenin v. Basley, 15 Ves. 180; Gray v. Stan- ford, 8 Ir, Eq. 678. (a) Jefferson v. The Bishop of Durham, 1 B. & P. 105, 120. And see Con. Stat. U. C. c. 28, 8. 9, et seq. (e) Story, s. 864. And see Lumley v. Wagner, 1D. M. & G. 616; Slim v. Croucher, 1D. F. & J. 528; Hunt v. Hunt, 8 Jur. ny. s. 86; Emperor of Austria v. Day, 3 D. F. & J. 217, 253; Southampton Dock Co. v. Southampton Harbour & Pier Co. L. R. 11 Eq. 254, 284 EQUITY JURISPRUDENCE. granted to stay trial(a), or, after verdict, to stay judgment(d), or, after judgment, to stay execution, or proceedings under executions(c), pending an appeal(d), or, if the execution has been issued, to stay the money in the hands of the sheriff (e) ; or, to stay the issuing of a writ of possession after verdict in an ejectment(/), or to stay the delivery of possession after a writ has been issued. 654. Relief will not be given in equity after judgment, un- less some special equitable ground for the interference of the court can be shown(g). A defence which has been fully and fairly tried at law cannot be set up as a ground for relief in equity after judgment(h), even although it may be the opinion of the court that the defence ought to have been sustained at law(i). Nor can a man who, having a good defence at law, neglects to avail himself of it there( 7), or who suffers judgment to go against him by neglect(k), come to a court of equity for relief. The mere fact of the discovery of fresh evidence since the verdict is not a sufficient ground for the interference of the court(l). Still less can an equity arise if the evidence might have been procured before the trial with ordinary care (a) See Dalglish v. Jarvie, 2 Mac. & G. 231; Treadwell v. Morris, 15 Gr. 165; Me- Fadden, v. Jenkins, 1 Ha. 458; 1 Ph. 157. (6) Turner v. Wright, 1 J. & W. 290; Jones v. Hughes, 1 Ha. 383. (c) Codd v. Woden, 3 Bro. C. C72; Lady Arundel v. Phipps, 10 Ves. 144 ; Jones v. Bassett, 2 Russ. 405; Newland v. Painter, 4M. & C. 408; Algar v. Murrell, 6 Jur. 775 ; Espey v. Lake, 10 Ha. 260; Fisher v. Baldwin, 22 L. J. Ch. 966. See Williams v. Roberts, 8 Ha. 315. : (d) Earl of Shrewsbury v. Trappes, 2D. F. & J. 172 ; Neil v. Bank of Upper Canada, 2 Gr. 386. Butsee Smith v. Wooten, 12 Gr. 200. (e) Whittingham v. Burgoyne, 3 Aust. 900; Franklyn v. Thomas, 3 Mer. 234; Far- quharson v. Pitcher, 2 Russ. 81. (f) Drummond v. Pigou, 2M. & K. 168. : (g) Rowe v. Wood, cited 2 Sw. 234, n; Protheroe v. Forman, 2 Sw. 229; O’Mahony v, Dickson, 2 8. & L. 400. See Countess of Gainsborough v. Giffard, 2 P, W. 424; Hankey v. Vernon, 2 Cox, 12; Bateman »y. Willoe, 1S. & L. 205. (h) Harrison v. Nettleship, 2 M. & K. 423. See Larabrie v. Brown, 1D. & J. 205. (i) Bateman v. Willoe, 18. & L. 205. See Simpson v. Lord Howden, 3M. & C. 97; Terrell v. Higgs, 1D. & J. 388. (j) Protheroe v. Forman, 2 Sw. 229; Bateman v. Willoe, 1S. & L. 205 ; Morrisonv. McLean, 7 Gr. 167. (k) Williams v. Lee, 3 Atk. 223. Comp. Griffith v. Edwards, 2 Jur. n.s. 584. . (1) Sewell v. Freestun, 1 Chan. Ca. 65; Ware v. Horwood, 14 Ves. 31; Taylor v. Shepherd, 1 Y. & C. Ex. 271; Bullock ». Chapman, 2 D. & Sm. 211. INJUNCTIONS 285 and diligence, or if the grievance complained of has been caused by a mistake in pleading, or the conduct of a cause, or by surprise(a). -655. A writ of injunction is in no just sense a prohibition to the courts of common law in the exercise of their jurisdiction. It is not addressed to those courts. It does not even affect to interfere with them. The process, when its object is- to re- strain proceedings at law, is directed only to the parties. It neither assumes any superiority over the court in which those proceedings are had, nor denies its jurisdiction. It is granted on the sole ground that from certain equitable circumstances, of which the court of equity, granting the process, has cogni- zance, it is against conscience, that the party inhibited should proceed in the cause. The object, therefore, really is, to pre- vent an unfair use being made of the process of a court of law, in order to deprive another party of his just rights, or to sub- ject him to some unjust vexation or injury, which is wholly irremediable by a court of law(d). 656. Without a jurisdiction of this sort, to control or en- jéin proceedings at law, equity jurisprudence, as a system of remedial justice, would be grossly inadequate to the ends of its institution. In a great variety of cases, courts of law can- not afford any redress to the party sued, although it is most manifest that he has in conscience and justice, but not at law, a perfect defence(c). 657. Relief will be given where material facts have been discovered since the trial which were fraudulently concealed, or (a) Curtis v. Smallrige, 2 Freem. 178 ; Stephenson v. Wilson, 2 Vern. 325; Black- hall v. Combs, 2 P. W. 70; Richards v. Symes, 2 {Atk. 319; Kemp v. Mackrell, 2 . Ves. 579 ; Holworthy v. Mortlock, 1 Cox, 141; Bateman v Willoe, 18. & L.201; Field v. Beanmont, 3 Mad. 102; Griffith v. ‘Gawartis, 2 Jur. N. 8. 584; Prince of Wales Assurance Co. v. Trulock, 4 W. R. 788, 820; 5 W. R. 14; Terebeie ®: Brown, 1 D. & J.205. Comp. O’Neill v. Browne, 9 Ir. Eq. 131. (2) Story, s. 875; Hill v. Turner, 1 Atk. 516; Harrison vy. Gurney, ? J. & W. 563 ; Lord Portarlington v. Soulby, 3M. & K. 104; Bunbivy ®, Bunbury, 3 Jur. 644 ; ; Heath- cote v. North Staffordshire Railway Co. 2 Mac. &G.109; Hunt v. Hunt, 8 Tits N. 8. 88. (c) Story, s. 877. 286 EQUITY JURISPRUDENCE, ‘could not by ordinary care and diligence:have been discovered before the trial(a). So also relief will be given against a judg- ment which has been obtained by fraud or collusion(d). In general it may be stated, that in all cases, where, by accident or mistake, or fraud, or otherwise, a party has an unfair advan- tage in proceedings in a court of law, which must necessarily make that court an instrument of injustice, and it is, therefore, against conscience that he should use that advantage, a court of equity will interfere, and restrain him from using the ad- vantage which he has thus improperly gained. 658. Suppose again, an executor or administrator should be in possession of abundant assets to pay all the debts of the deceased, and by an accidental fire, or by a robbery, without any default on his part, a great portion of them should be des- troyed, so that the estate should be insolvent, he might be sued at law by a creditor, and the loss.of the assets by accident would afford no defence. When he once becomes chargeable with the assets at law, he is for ever chargeable, notwith- standing any intervening casualties. But courts of equity will enjoin proceedings at law, in cases of this sort, upon the purest principles of justice(c). : 659. But an injunction is ordinarily applied for, to stay pro- ceedings at law, where the rights of the party are wholly equitable in their own nature, or are incapable under the cir- cumstances of being asserted in a court of law(d). An illus- tration of the former class may be found in the attempt of a trustee, in violation of his trust, to oust the possession of tie cestui que trust of an estate, to the beneficial enjoyment of which he is entitled ; or of a landlord to oust the possession of a tenant, with whom he has contracted for a lease, by an (a) Countess of Gainsborough v. Gifford, 2 P. W. 424; Wilmot v Lennard, 3 Sw. 682 ; Williams v. Lee, 3 Atk. 223 ; Jarvis v. Chandler, T. & R. 319 ; Cunningham v. Buchanan, 10 Gr. 523. See Ayre’s case, 25 Beav. 513, (0) Isaac», Humpage ; 3 Bro. C. C. 463; Rowe v. Wood, 2 Sw. 234,n; Annesley v. Rookes, 3 Mer. 226n; O’Neillv. Browne, 9 Ir. Eq. 131; Taylor v. Hughes, 2 J. & L. 24; Bargate v. Shortridge, 5 H. L. 297. . (c) Story, s. 878 ; Crosse v. Smith, 7 East, 246 ; Croft v. Lyndsey, 2 Freem. 1. (d) See Waterlow v. Bacon, L. R. 2 Eq. 514. TNJUNCTIONS, 287 ejectment in violation of that contract. Illustrations of the latter class may be found in the common cases of bonds and mortgages, and other penal securities and covenants, where, by the strict rules of law, the party after forfeiture can obtain no relief(a) ; in cases of set-off in equity, which are not recog- nized atall at law as such; and in casesof partnership property seized in execution by a creditor of one of the partners, where an injunction will be awarded to stay proceedings, until an account of the partnership funds and rights is taken(®). 660. Another class of cases, in which injunctions are granted against proceedings at law, is where thére has already been a decree upon a creditor's bill for the administration of assets. Such a decree is considered in equity to be in the nature of a judgment for all the creditors, and therefore, if subsequently to it,a creditor should sue at law, the court of equity, in which the decree is made, will, in the assertion, of its jurisdiction, restrain him from proceeding in his'suit(c). _ 661. Courts of equity will not only award an injunction to stay proceedings at law, but they will also, where the party is proceeding at law and in equity for the same matter at the same time, compel him to make an election of the suit, in which he will proceed, and will stay the Bees in the other court(d). 662. Courts of equity will also interpose to prevent their ‘(a) Walker v. Jones, L. R. 1 P. C. 50. (0) Story, ». 654. (c) Story, s. 890; Morrice v. Bank of England, Cas. t. Talb. 217 ; 2 Bro. P. C. 465 ; Paxton »v. Donel: 8 Ves. 520; Martin v. Martin, 1 Ves. Sen. 212 ; ; Perry v. Phelips, 10 Ves. 34 ; Clarke v. Ormond, Jac. 122; Hope v. Carnegie, L. R. 1 Chan. 320; Bailie v, Bailie, Th R. 5 Eq. 175; Burles v. Popplewell, 10 Sim. 383. And see Bank of British North America v. Mallory, 17 Gr. 102. As to restraining a creditor who has proved as a subsequent incumbrancer in a suit for foreclosure, Cahuac v. Durie, 9 Gr. 485’; Goodwin v. Williams, 5 Gr. 178. @ Story, s. 889 ; Vaughan v. Welsh, Moseley, 210; Mocher v. Reed, 1 B. & B. 318 Gedye v. Montrose, 5 W. R. 537. There are some exceptions to this doctrine. One is, that a mortgagee may proceed in equity, and at law the same time. But this right * is not unqualified ; for the mortgagor will not be compelled to pay upon his bond, un- less secure of his title-deeds being delivered up, Schoole v. Sall, 1S. & L. 176; Royle v. Wynne, Or, & Ph. 252. And see Rees v. Beckett, 2 Gr, 650. And also as to costs in sucha case, Weir v. Taylor, 1 Chan. Cham. R, 371. f 288 EQUITY JURISPRUDENCE. own officers, or persons employed under the authority of the court, from proceeding at law. Thus, commissioners for the examination of witnesses have been restrained from proceeding at law to recover their fees(a); and the same principle has been applied to an auctioneer who has sold property under an order of court(b). 663. Courts of equity will grant an injunction to protect their officers, who execute their process, against suits brought against them for acts done under or in virtue of such pro- cess(c). The ground of this jurisdiction is, that courts of equity will not suffer their process to be examined by any other courts ; and courts of law cannot know anything of their nature and effect. If they are irregularly issued or executed, ... it is the duty of courts of equity themselves to apply the pro- per remedy(d). The same principle is applied to protect sequestrators and receivers(e). 664. Although the courts of one country have no authority to stay proceedings in the courts of another, they have an un- doubted authority to control all persons and things within their own territorial limits. When, therefore, both parties to a suit in aforeign country, are resident within the jurisdiction of the court of equity, it will restrain either party from proceed- ing in a suit out of its jurisdiction. They do not pretend to direct or control the foreign court, but, without regard to the situation of the subject-matter of the dispute, they consider the equities between the parties, and decree in personam ac- (a) See Blundell v. Gladstone, 9 Sim. 455 ; Ambrose v, Dunmow Union, 8 Beav. 43. (b) In re Weaver, 2M. & C. 441. (c) Turner v. Turner, 15 Jur. 218; Fisher v. Glass, 9 Gr. 46. (d) Story, s. 891; Bailey v. Devereux, 1 Vern. 269; Frowd v. Lawrence,1J. & W. 655 ; May v. Hook, 2 Dick. 619; Aston v. Heron, 2M. & K, 390; Arrowsmith v. Hill, 2 Ph. 609; Walker v. Micklethwait, 1 Dr. & Sm. 51; Re James Campbell, 3 D. M. & G. 585. But see as to the case of a sheriff, where he has seized goods under a writ is- sued out of chancery, Onyon v. Washbourne, 14 Jur. 497 ; Tufton v. Harding, 6 Jur. ¥. 8. 116. (e) Angel ». Smith, 9 Ves. 338 ; Chalie v, Pickering, 1 Keen, 749 ; Evelyn v. Lewis, 3 Ha. 472; Defries v. Creed, 34 L. J, Ch. 607 ; Ames v. Birkenhead Docks, 20 Beav. 353, : INJUNCTIONS. 289 cording to those equities, and enforce obedience to their decrees by process in personam(a). 665. The process of injunction is also most beneficially ap- plied to suppress undue and vexatious litigation. Thus, where a party is guilty of continual and repeated breaches of coven- ants, a court of equity will interpose, and enjoin the party from further violations of such covenants, even although such breaches may be capable of compensation by repeated actions of covenant. For, without such interposition, the party can do nothing but repeatedly resort to law; and when suits have proceeded to such an extent as to become vexatious, for that very reason the jurisdiction of a court of equity attaches(b). _ 666. With a view to the same beneficial purpose, and to suppress undue and mischievous litigation, courts of equity will prevent a party from setting up an unconscientious defence at law, or from interposing impediments to the just rights of the other party(c). In such cases, courts of equity act by in- junction, and by that process prohibit the party from asserting such an unconscientious defence, or from setting up such an impediment to the obstruction of justice. Thus, for instance, if an ejectment is brought to try a right to land in a court of common law, a court of equity will, under proper circum- stances, restrain the party in possession from setting up any title, which may prevent the fair trial of the right(@). But this will not be done in every case; for if there is any counter equity in the circumstances of the case, the court will not in- terfere. Thus, it will not interfere against the possessor, who (2) Lord Cranston v. Johnston, 3 Ves. 170, 182 ; Beckford v. Kemble, 1 S. & 8.73 Harrison v. Gurney, 2 J. & W.563; Portarlington v. Soulby, 3 M.& K. 104; Bowles ». Orr, 1 Y. & C. Ex. 464. See also Wharton v. May, 5 Ves. 27; Kennedy v. Earl of Cassillis, 2 Swanst. 313; Bushby v. Munday, 5 Mad. 297; Beauchamp ». Marquis of Huntley, Jac. 546; Hope v. Carnegie, L. R. 1 Chan. 320; Carron Iron Co. v MacLaren, 5 H. L. 416, 437. * (6) Story, ». 901; Waters v. Taylor, 2 V. & B. 302. See also Ware v. Horwood, 14 Ves. 33. (c) See Martin v. Nicolls, 3 Sim. 458; Bowles v. Orr, 1 Y. & C.. Ex. 464. (d) Pultney v. Warren, 6 Ves. 89 ; Crow v. Tyrell, 3 Mad. 181. See Jones v. Jones, 3 Mer. 172, 19 290 EQUITY JURISPRUDENCE. is a bona fide purchaser for a valuable consideration, without notice of the adverse claim at the time of his purchase(a). 667, Cases often arise, in which a party may be entitled to proceed in a suit at law for damages, when a complete equit- able defence exists, which is yet incapable of being asserted at law. In such cases the suit at law is treated as vexatious, and will be stayed by an injunction. Thus, if a decree has been made against a vendor for the specific performance of a con- tract for the sale of land, notwithstanding the vendee has not strictly complied with the terms of the contract, and subse- quently a suit is brought by the vendor against the vendee for the breach of the contract, a court of equity will restrain the suit as being unjustifiable and vexatious(b). And if a credi- tor should give time to his debtor, and should thereby release the surety in equity, and he should afterwards proceed at law against the surety, the suit would be stopped by injunction upon a similar ground(c). 668. Injunctions are also granted to restrain the alienation of property in the largest sense of the word. 669. In regard to negotiable securities, if there is danger of their gettmg into the hands of a bona fide holder without , , , notice, who may be entitled to recover upon them, notwith- standing any fraud in their original concoction, or the loss of them by the real owner, the court will grant an injunction prohibiting their negotiation, assignment, or endorsation(d). 670. The same principle is applied to restrain the transfer of stocks. Thus, for instance, where there is a controversy respecting the title to stock under different wills, an injunc- a) Story, s. 903 ; Bond v. Hopkins, 1S. & L. 429; Baker v. Mellish, 10 Ves. 549. (b) Reynolds v. Nelson, 6 Mad, 290. And see Prothero v, Phelps, 7 D. M. & G. 722. (ec) Bank of Ireland v. Beresford, 6 Dow, 233; Bowmaker, v. Moore, 3 Price, 219. See Clarke v. Henty, 3 Y.& C. 187. (@) Smith v. Haytwell, Amb. 66; Lloyd v, Gurdon, 2 Swanst. 180; King». Hamlet, 4 Sim, 223; Patrick v. Harrison, 3 Bro. U. C. 476; Hood v. Aston, 1 Russ. 412 ; Sharp », Arbuthnot, 13 Jur. 219; Green v. Pledger, 3 Hay 165; Simons v. Cridland, 5 L. T- N. 8.523. See Hodgson v, Murray, 2 Sim, 515. INJUNCTIONS. 291 tion will be granted to restrain any transfer pendente lite(a). So an injunction will be granted where the title to stock is con- troverted between principal and agent(b) ; or where a trustee or agent attempts to transfer it for his own benefit, and to the injury of the party beneficially entitled to it(c). 671. An injunction will also be granted to restrain a party from suing at law upon the debentures for interest, or divi- dends, declared upon the shares of a joint-stock company, where the shares held by the defendant were fraudulently issued, in the first instance, but bona fide purchased in the market, in the due course of business(d). So, also, to restrain the payment of money, where it is injurious to the party to whom it belongs; or where it is in violation of the trust to which it should be devoted(e). So, too, to restrain the transfer of diamonds or other valuables, where the rightful owner may — be in danger of losing them(/). ; 672.-In like manner an injunction will be granted to re- strain a party from making vexatious alienations of real pro- perty, pendente lite(g). So, also, to restrain a vendor from con- veying the legal title to real estate pending a suit for the specific performance of a contract for the sale of that estate(h). Although the maxim is, pendente lite nil innovetur, that maxim is not to be understood as warranting the conclusion, that the conveyance so made is absolutely null and void at all times, and for all purposes. The true interpretation of the maxim is, that the conveyance does not vary the rights of the parties in that suit; and they are not bound to take notice of the title acquired under it; but with regard to them the title is to be (a) King v, King, 6 Ves. 172. (6) Chedworth v. Edwards, 8 Ves. 46. (c) Stead v, Clay, 1 Sim. 294; Rogers v. Rogers, 1 Anst. 174; Malcolm wu. Scott, 3 Ha. 39, (@) Athenzum Life Ass. Co. v. Pooley, 3D. & J. 294. (e) See Reeve v. Parkins, 2 J. & W. 390; Whittingham v. Burgoyne, 3 Anst, 900 ; Green v. Lowes, 3 Bro. C. C. 217. (f) Ximdnes vw. Franco, 1 Dick. 149; Tonnins v. Prout, 1 Dick. 387. (9) Daly v, Kelly, 4 Dow, 440, And see Att.-Gen. 7 McLaughlin, 1 Gr. 34, (i) Echliff v, Baldwin, 16 Ves. 267; Daly v. Kelty. 4 Dow, 435. 292 EQUITY JURISPRUDENCE. taken as if it had never existed. Otherwise, suits would be indeterminable, if one party, pending the suit, could, by con- veying to others, create a necessity for introducing new parties(a). 678. Waste may be defined as the destructive or material alteration of things forming an essential part of the inherit- ance(b). The jurisdiction of equity to restrain waste arose, as in most other cases, from the incompetency of the common law to give adequate relief. The jurisdiction at common law with regard to waste may be thus stated :—By the’statutes of Gloucester, 6 Edw. 1, c. 5; of Marlebridge, 52 Hen. 3, c. 24; and of Westminster, 13 Edw. 1, c. 22, a writ of waste may be brought by him who hath the immediate estate of inheritance in reversion or remainder against the tenant for life, tenant in dower, tenant by the courtesy, or tenant for years; it may also be brought by one tenant in common, or joint tenant against another who wastes the estate held in common or joint tenancy. But it does not lie between co-parceners(c). 674. But courts of equity have, by no means, limited them- selves to an interference in cases of this sort. They have ex- tended this salutary relief to cases where the remedies pro- vided in the courts of common law cannot be made to apply; and, where the titles of the parties are purely of an equitable nature(d); aud, where the waste is, what is commonly, al- though with no great propriety of language, called equitable waste(e); meaning acts which are deemed waste only in courts of equity ; and where no waste has been actually committed, but is only meditated or apprehended, equity will interfere by a bill quia timet(f). (a) Story, s. 908; Metcalfe v. Pulvertoft,:2 V. & B. 205; Bishop of Winchester ». Paine, 11 Ves. 197 ; Gaskell v. Durdin, 2B. & B. 169; Bishop v. Beavor, 3 Ves. 314; Moore v. Macnamara, 2 B. & B. 186. (6) Tomlin’s Law Dict., Waste. f (c) 3 Black Com. 227, 228 ; Jefferson v. Bishop of Durham, 1 Bos. & Pull. 120 ; Snell Eq. 463. (d) Mitf. Eq. Pl. by Jeremy, 114, 115, and cases cited in note.(u) ; 1 Mad. Pr. Ch. 114 to 121. (e) Marquis of Downshire v. Lady Sandys, 6 Ves, 109, 110, 115; Chamberlyne 2. Dummer, 1 Bro. C C. 166. (f) Story, s. 912, x INJUNCTIONS. 293 675. There are many cases where a person is dispunishable at law for committing waste, and yet a court of equity will enjoin him. As, where there is a tenant for life, remainder for life, remainder in fee, the tenant for life will be restrained, by injunction, from committing waste(a); although, if he did commit waste, no action of waste would lie against him by the remainder- man for life, for he has not the inheritance, or by the remainder-man in fee, by reason of the interposed remain- der for life(b). So, a ground landlord may have an injunction to stay waste against an under-lessee(¢). And an injunction may be obtained against a tenant from year to year, after a notice to quit, to restrain him from removing the crops, manure, &c., according to the usual course of husbandry\d). 676. Courts of equity will grant an injunction in cases where the aggrieved party has equitable rights only ; and, indeed, it has been said, that these courts will grant it more strongly where there is a trust estate(e). Thus, for instance, in cases -of mortgages, if the mortgagor or mortgagee in possession commits waste, or threatens to commit it, an injunction will be granted, although there is no remedy at law( 7). And where a purchaser, having entered into possession, failed to perform his agreement and meet his payments, he was restrained from cutting timber, or removing timber already cut(g). (a) See Robinson v. Litton, 3 Atk. 210. But equity will not interfere to make a tenant for life liable for permissive waste ; for such a tenant is not bound to repair, Powys v. Blagrave, Kay, 495; 4D. M. & G. 448; Zimmerman 2 O'Reilly, 14 Gr. 646. And see Wood v. Gaynon, Amb. 395. (b) Com. Dig. Waste, C. 3; Abraham v. Bubb, 2 Freem. Ch. 53; Garth v. Cotton, 1 Dick, 183, 205, 208; 1 Ves. sen. 555; Perrot v. Perrot, 3 Atk. 94; Rubinson v. Litton, 3 Atk. 210; Davis v. Leo, 6 Ves. 787. (c) Farrant v. Lovell, 3 Atk. 723; Ambl. 105. (d) Onslow v. ——, 16 Ves. 173; Pratt v. Brett, 2 Mad. 62. © Robinson v. Litton, 3 Atk. 210; Garth v. Cotton, 1 Dick, 183; 1 Ves. Sen. 555 5 Stansfield ». Habergham, 10 Ves. 277, 278. (f) Farrant v. Lovell, 3 Atk. 723: Ushorne v. Usborne, 1 Dick. 75; Humphreys v. Harrison, 1 J. & W. 581; Wason v. Carpenter, 13 Gr. 329; Cawthra v. McGuire, 5 ULC. L. J. 142; Russ v. Mills, 7 Gr. 145. But a mortgagor will not be restrained un- less the land would be a scanty security without the timber, Hippesley v. Spencer, 5 Mad. 422; King v. Smith, 2 Ha. 239. (9) Ferrier v. Kerr, 2 Gr. 668 ; Lawrence v, Judge, 2 2 Gr. 301. But see Smith v, Bell, 11 Gr. 519, 294 EQUITY JURISPRUDENCE. 677. Equitable waste may be defined to be such acts as at law would not be esteemed waste under the circumstances of the case, but which, in the view of a court of equity, are so esteemed, from their manifest injury to the inheritance, although they are not inconsistent with the legal rights of the party committing them. As if the mortgagor in possession should fell timber on the estate, and’ thereby the security would become insufficient (but not otherwise), a court of equity will restrain the mortgagor by injunction(a). So, if there be a tenant for life without impeachment for waste, and he should pull down houses, or do other waste wantonly and maliciously, a court of equity would restrain him(6). 678. Upon the same ground, tenants for life without impeach- ment for waste, and their assignees, and tenants in tail, after possibility of issue extinct, have been restrained from cutting down trees planted for the ornament or shelter of the pre- mises,c). So, a tenant for life, without impeachment of waste, has been restrained from cutting timber where certain trus- tees had powers inconsistent with his right, and to which it was expressly made subject(d). 679. Upon similar grounds, although courts of equity will not interfere by injunction to prevent waste in cases of tenants in common, or coparceners, or joint-tenants, because they have a right to enjoy the estate as they please; yet they will inter- fere in special cases ; as, where the party committing the waste is insolvent; or, where the waste is destructive of the estate, (a) King v. Smith, 2 Ha. 239. And see Thompson v. Croker, 3 Gr. 653, where the attaching creditors of an absconding mortgagor were restrained from selling timber im- properly cut on the mortgaged premises. (6) Abraham v. Bubb, 2 Freem. Ch. 53 ; Lord Barnard’s case, Prec. Ch. 454, 2 Vern. 738; Aston v. Aston, 1 Ves. Sen. 265, (c) Rolt v. Lord Somerville, 2 Eq. Ca. Ab. 759; Packington’s case, 3 Atk. 215 ; Strathmore v. Bowes, 2 Bro. C. C. 88; Coffin v. Coffin, Jac. 71; Burges v. Lamb, 16 Ves 185,186; Marquis of Downshire, v. Sandys, 6 Ves. 107; Lord Tamworth 4. Lord Ferrers, 6 Ves. 419; Day v. Merry, 16 Ves. 375; Attotney-General v. Duke of Marlborough, 3 Mad. 539, 540; Wellesley v. Wellesley, 6 Sim. 497. See Sowerby » Fryer, L. R. 8 Eq. 417; Birch-Wolfe v, Birch, L. R. 9 Eq. 683; Bubb», Yelverton, L. R. 10 Eq. 465. . (d) Story, s. 915; Briggs v. Earl of Oxford, 5 D. & Sm. 156. See Kekewich v. Mar- ker, 3 Mac. & G. 311. INJUNCTIONS, 295 and not within the usual legitimate exercise of the right of enjoyment of the estate(a). 680. The jurisdiction of the court is frequently exercised in granting injunctions in cases of nuisances. Nuisances may be of two sorts: (1) such as are injurious to the public at large, or to public rights ; (2) such as are injurious to the rights and interests of private persons. 681. In regard to public nuisances, the jurisdiction of courts of equity seems to be of avery ancient date, and has been dis- tinctly traced back to the reign of Queen Elizabeth(b). The jurisdiction is applicable, not only to public nuisances, strictly so called, but also to purprestures upon public rights and property. Purpresture, according to Lord Coke, signifies a close, or enclosure, that is, when one encroaches, or makes “that several to himself which ought to be common to many(c). The term was, in the old law writers, applied to cases of en- croachment, not only upon the king, but upon subjects. But in its common acceptation, it is now understood to mean an encroachment upon the king, either upon part of his demesne lands, or upon rights and easements held by the crown for the public, such as upon highways, public rivers, forts, streets, squares, bridges, quays, and other public accommodations(d). 682. In cases of purpresture, the remedy for the crown is either by an information of intrusion at the common law, or by an information at the suit of the attorney-general in equity. In the case of a judgment upon an information of intrusion, the erection complained of, whether it be a nuisance or not, is abated. But upon a decree in equity, if it appear to be a mere purpresture, without being at the same time a nuisance, the (a) Story, s. 916 ; Twort v. Twort, 16 Ves. 128, 131 ; Hole v. Thomas, 7 Ves. 589, 500 ; Christie v. Saunders, 2 Gr. 670; Dougal v. Foster, 4 Gr. 319. An injunction was refused against a tenant in common in possession, selling hay, &c., contrary to the cus- tom of the country, Bailey ». Hobson, L. R. 5 Chan. 180. (8) Eden on Injunct. 224, 225. (c) 2 Inst. 38, 272. (d) Att.-Gen. v. Forbes, 2 M. & C. 123; Earl of Ripon v, Hobart, 3M. & K. 169, 179, 180. ‘ 296 EQUITY JURISPRUDENCE. court may direct an inquiry to be made, whether it is most. beneficial to the crown, to abate the purpresture, or to suffer the erections to remain and be arrested. But if the purpres- ture be also a public nuisance, this cannot be done; for the crown cannot sanction a public nuisance(a). 683. In cases of public nuisances, properly so called, an in- dictment lies to abate them, and to punish the offenders. But an information also lies in equity to redress the grievance by way of injunction. Thus, informations in equity have been maintained against a public nuisance by stopping a highway. But the court has no jurisdiction on the ground of public nui- sance to enforce by injunction the ordinary repair of a high- way, or to restrain an incorporated road company from suffer- ing a road to continue out of repair(é). 684. The ground of this jurisdiction of courts of equity is, their ability to give a more complete and perfect remedy than, is attainable at law. They can interpose, where the courts of law cannot, to restrain and prevent such nuisances, which are threatened, or are in progress, as well as to abate those already existing. And by a perpetual injunction, the remedy is made ’ complete through all future time ; whereas, an information or indictment at the common law can only dispose of the pres- ent nuisance, and for future acts new prosecutions must be brought. Besides, the remedial justice in equity may be prompt and immediate, before irreparable mischief is done, while, at law, nothing can be done, except after a trial, and upon the award of judgment. In the next place, a court of equity will not only interfere upon the information of the attorney-general, but also upon the application of private par- ties, directly affected by the nuisance(c). At law, in many (a) Story, s. 922; Att.-Gen. v. Richards, 2 Anstr. 603, 606. (b) Att.-Gen. v. Weston Plank Road Oo. 4 Gr. 211; Paxton v. Newton, 2 Sm. & G. 440. But see Att.-Gen. v. Toronto Street Rail Co. 14 Gr. 673, ; 15 Gr. 187 ; Att~ Gen. v. Great Northern Rail Co, 1 Dr. & Sm. 154; Att.-Gen. v. Metropolitan Board. of Works, 1 H. & M. 298; Att.-Gen. v. Mid Kent Rail Co. L. R. 3 Chan. 100. (c) See Soltau v. De Held, 2 Sim. n. s. 150. INJUNCTIONS. 297 cases, the remedy is, or may be, solely through the instrumen- tality of the attorney-general(q). 685. In regard to private nuisances, the interference of courts. of equity by way of injunction is undoubtedly founded upon the ground of restraining irreparable mischief, or of suppress- ing oppressive and interminable litigation, or of preventing multiplicity of suits. It is not every nuisance which will justify the interposition of courts of equity to redress the in- jury or to remove the annoyance. There must be such an injury, as from itsnature is not susceptible of being adequately compensated by damages at law, or such as, from its continu- ance or permanent mischief, must occasion a constantly recur- ring grievance, which cannot be otherwise prevented but by an injunction(b). 686. Every common trespass is not a foundation for an in- junction, where it is only contingent, fugitive, or temporary- But if it is continued so long as to become a nuisance, in such a case an injunction ought to be granted, to restrain the per- son from committing it(c). So, a mere diminution of the value of property by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief(d). 687. On the other hand, where the injury is irreparable, as. where loss of health(e), loss of trade(/), destruction of the means of subsistence, or permanent ruin to property, may or will ensue from the wrongful act or erection, in every such (a) Story, s. 424; Crowder v. Tinkler, 19 Ves. 617, 623; Att.-Gen. v. Forbes, 2 M. & C.129. See also Spencer v. London & Birmingham Rail Co. 8Sim. 193; Samp- son v. Smith, 8 Sim. 272. (0) Fishmongers’ Company v. East India Company, 1 Dick. 163; Att.-Gen. v.. Nicho), 16 Ves. 342. And see Broadbent v. Imperial Gas-Co. 7 D. M. & G. 436;. Att.-Gen. v. Birmingham, 4 K. & J. 528; The Manchester Sheffield &c. Rail Co. v. Works of Board of Health, 23 Beav. 198. But see as to acquiescence, Radenhurst. v. Coate, 6 Gr, 139; Heenan v. Dewar, 17 Gr. 638; 18 Gr. 438. (c) Coulson v. White, 3 Atk. 21, See Inchbald v. Robinson, L. R. 4 Chan. 388. (d) Story, s. 925; Att.-Gen. v. Nichol, 16 Ves. 342 ; Wynstanley. v. Lee, 2 Swanst. 336 ; Earl of Binds v, Hobart, 3 M. & K. 169; Haivigos v. Good, L. R. 11 Eq. 338. And see Magee v. London & Port Stanley Rail Co. 6 Gr. 170. (e) Walter v. Selfe, 4 D. & Sm. 322. (f) As to restraining the publication of advertisements injurious to the reputation: and mercantile credit of another, Dixon v. Holden, L. R. 7 Eq.. 488.. 298 EQUITY JURISPRUDENCE. ‘ease courts of equity will interfere by injunction, in further- ance of justice and the violated rights of the party(a). Thus, for example, where a party builds so near the house of another, as to darken his windows, against the clear rights of the latter either by contract, or by ancient possession, courts of ‘equity will interfere by injunction to prevent the nuisance, as well as to remedy it, if already done, although an action for ‘damages would lie at law; for the latter can in no just sense be deemed an adequate relief in such a case(b). The injury is ‘material, and operates daily to destroy or diminish the com- ‘fort and use of the neighbouring house ; and the remedy by a multiplicity of actions, for the continuance of it, would fur- nish no substantial compensation(c). | 688. Cases of a nature calling for the like remedial interpo- ‘sition of courts of equity, are, the obstruction or pollution(d) ‘of watercourses, the diversion of streams from mills(e), the back flowage on mills, and the pulling down of the banks of rivers, and thereby exposing adjacent lands to inundation, or -adjacent mills to destruction(/). So, an injunction will be granted against a corporation, to prevent an abuse of the powers granted to them to the injury of other persons(g). So, (a) Wynstanley v. Lee, 2 Swanst. 335; Att.-Gen. v. Nichol, 16 Ves. 342; Cher- ‘rington v. Abney, 2 Vern. 646; Earl Bathurst v. Burden, 2 Bro. C. C. 64; Nutbrown v. Thornton, 10 Ves. 163. (6) Brummell v. Wharin, 12 Gr. 283; Back v. Stacy, 2 Russ. 121; Sutton v. Mont- fort, 4 Sim. 559, See Stone v. Real Property Company, 12 Jur. n. s. 558; Arce- -deckne v, Kelk, 5 Jur. n. 8. 114; Bononi v. Backhouse, 5 Jur. nN. 8. 1845; Wilson 2. Townend, 6 Jur. w. 8. 1109; Tapling v. Jones, 11 H. L. 290; Staight v. Burn, L. R. -5 Chan 163. (©) Story, s. 926. (2) Wood v. Sutcliffe, 2 Sim. nw. s. 165; Goldsmid v. Tunbridge Wells Co. 12 Jur. N.S, 308; Att.-Gen. v. Colney Hatch Lunatic Asylum, L. R. 4 Chan.146; Lingwood -v. Stowmarket Co. L. R. 1 Eq. 77, 336; Att.-Gen. v. Richmond, L. R.2Eq. 306; Att.- Gen. v, Leeds Corporation, L. R. 5 Chan. 583; Holt v. Corporation of Rochdale, L, R. 10 Eq. 354 ; Clowes v. Staffordshire P. W. Co. L. R. 8 Chan.125, As to pollution of the air, see Cartwright v. Gray, 12 Gr. 399. As to the circumstances under which the court will interfere, Att.-Gen. v. Gee, L. R. 10 Eq. 131. (e) But see Graham v. Northern Rail Co. 10 Gr. 259. (f) Robinson v. Byron, 1 Bro. C. C. 588; Universities of Oxford and Cambridge v. Richardson, 6 Ves. 706; Lane v. Newdigate, 10 Ves. 194; Chalk v. Wyatt, 3 Meriv. “688. And see Gamble ». Howland, 3 Gr. 281; Burr v. Graham, 5 Gr. 491. (g) Coats x. ‘the Clarence Railway Company, 1 R.& M.181. And see Brewster .v, The Canada Co, 4 Gr. 443. INJUNCTIONS. 299 to restrain the ringing of bells by a Roman Catholic commu- nity, although the same was done only on Sundays(a). 689. An injunction will be granted to prevent a party from making erections on an adjacent lot in violation of his cove- nant or other contract(b). And to prevent a tenant from remov- ing mineral and other deposits from the bed of a stream run- ning through a farm which he occupies(c). 690. Upon the same principle, a land-owner has a right, in- dependent of prescription, to the lateral support of his neigh- bours’ land, so far as that is necessary to sustain his soil in its natural state, and also to compensation for damages caused, either to the land or buildings upon it, by the withdrawal of such support, it being established that the additional weight of the buildings had nothing to do with the subsidence of the soil(d). And it would seem that he may acquire, by twenty years’ enjoyment, the right to lateral support for the addi- tional weight of buildings erected on the land. And where houses of the plaintiff were injured by mining operations of the defendant, in adjoining land, which would have caused the soil to subside without the additional weight of the houses, a decree for perpetual injunction, and for compensation, was granted(e). 691. Upon similar grounds, courts of equity interfere in cases of trespasses, that is to say, to prevent irreparable mis- chiefs, or to suppress multiplicity of suits and oppressive liti- ‘(a) Soltau v. De Held, 2 Sim. wy. 8. 150. (6) Ranken v. Huskisson, 4 Sim. 13; Squire v. Campbell, 1 M. & C. 480, 481; Roper v, Williams, T. & R. 18. See also Peek v. Matthews, L. R. 3 Eq. 515; Western v. McDermott, L. R. 2 Chan. 72; Mitchell v. Steward, L. R. 1 Eq. 541; Wilson ». Hart, L. R. 1 Chan. 463; Feilden v. Slater, L. R. 7 Eq. 523; Clements:v. Welles, L. R. 1 Eq. 200. (©) Thomas v. Jones, 1 Y. & C, 510. (dq) Hunt v. Peake, Johns. 705. (e) Story, s. 927 a; Caledonian Railway Co. v. Sprot, 2 McQueen, 449 ; Humphries 4. Brogden, 12 Q. B. 739; Rowbotham v. Wilson. 6 El. & Bl. 593; Arkwright v. Gell, 5M, & W. 208; Acton v. Blundell, 12M. & W. 324; Dickinson v. Grand J. Canal Co. 7 Exch. 282 ; Chasemore v. Richards, 7 W. R. 685; Solomon v. Vintners’ Company, 7 W. R. 613; Metropolitan Board of Works v. Metropolitan R. R. Co, L. BR. 4C. P. 192; Popplewell », Hodkinson, L. R. 4 Ex. 248. 300 EQUITY JURISPRUDENCE. gation(a). But if the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition ‘of courts of equity(b). Formerly, indeed, courts of equity were extremely reluctant to interfere at all, even in regard to cases of repeated trespasses, but now, there is not the slightest hesitation, if the acts done, or threatened to be done, to the property, would be ruinous or irreparable, or would impair the just enjoyment of the property in future(c). 692. Relief is now granted in all cases of timber, coals, ores, and quarries, where the party is a mere trespasser, or where he exceeds the limited rights with which he is clothed, upon the ground that the acts are, or may be, an irreparable damage to the particular species of property(d). 693. Thus, for instance, an injunction will be granted, where timber is attempted to be cut down by a trespasser, in collusion with the tenant of the land(e), or where there ‘is a dispute respecting the boundaries of estates, and one of the claimants is about to cut down ornamental or timber trees in the disputed territory(f). So, where lessees are taking away from a manor, bordering on the sea, stones of a peculiar value (9). 694. Upon similar principles, for preventing irreparable mis- chief, or suppressing multiplicity of suits and vexatious litiga- tion, courts of equity interfere in cases of patents for inventions, and in cases of copyrights, to secure the rights of the in- ventor, or author, and his assignees and representatives(h). (a) Hanson v. Gardiner, 7 Ves. 308, 309, 310 ; Norway v. Rowe, 19 Ves. 147, 148, 149, (6) But see London, &c. R. Co. v. Lancashire, &c. R. Co. L. R. 4 Eq. 174. (c) Story, s. 928; Hanson v. Gardiner, 7 Ves. 306; Courthope v. Mapplesden, 10 Ves, 291; Field v. Beaumont, 1 Swanst. 207, 208; Crockford v. Alexander, 15 Ves. 138; Thomas v. Oakley, 18 Ves. 184. See Att.-Gen. v. McLaughlin, 1 Gr. 34. (d) Story, s. 929; Thomas v. Oakley, 18 Ves. 184; Field v. Beaumont, 1 Swanst. 208 ; Norway v. Rowe, 19 Ves. 147, 154. (e) Courthorpe v. Mapplesden, 10 Ves. 290, And see Chisholm v. Sheldon, 1 Gr. 318. (f) Kinder v. Jones, 17 Ves. 110. See Uhristie v. Long, 3 Gr. 630. (g) Earl Cowper v. Baker, 17 Ves. 128 ; Thomas v. Jones, 1 ¥. & C. 510. (h) Sheriff v. Coates, 1R. & M. 159. INJUNCTIONS. 301 695. If no other remedy could be given in cases of patents and copyrights than an action at law for damages, the inventor or author might be ruined by the necessity of perpetual litiga- tion, without ever being able to have a final establishment of his rights(a). Besides, in cases of this nature, mere damages would give no adequate relief’ For example, in the case of a copyright, the sale of copies by the defendant is not only in each instance taking from the author the profit upon the indi- vidual book, which he might otherwise have sold; but it may also be injuring him, to an incalculable extent, in regard to the value and disposition of his copyright, which no inquiry for the purpose of damages could fully ascertain(b). 696. In cases, however, where a patent has been granted for an invention, it is not a matter of course for courts of equity tointerpose by way of injunction. If the patent has been but recently granted, and its validity has not been ascertained by a trial at law, the court will not generally act upon itsown notions of the validity of the patent, and grant an immediate injunction ; but it will require it to be ascertained by a trial in a court of law, if the defendant denies its validity, or puts the matter in doubt(c). But, if the patent has been granted for some length of time, and the patentee has put the invention into public use, and has had an exclusive possession of it under his patent for a period of time, which may fairly create the presumption of an exclusive right, the court will ordin- arily interfere by way of injunction(d). (a) Harmer ». Plane, 14 Ves. 132; Hogg v. Kirby, 8 Ves. 223, 224; Lawrence v. Smith, Jac. 472; Sturz v. De la Rue, 5 Russ. 322. (b) Story, ss. 931, 932 ; Hogg v. Kirby, 8 Ves. 223, 224, 255; Wilkins». Aikin, 17 Ves. 424; Lawrence v. Smith, Jac. 472. And see Geary ». Norton, 1D. & Sm. 9; Colbourne v. Simms, 2 Ha. 548, 553. (c) Martin v. ‘Wright, 6 Sim. 297; Bramwell », Halcomb, 3 M. & O. 787; Spottis- woode v. Clarke, 2 Ph. 156 ; Stevens v. Keating, 2 Ph. 333 ; Caldwell v. Van Vlissen- gen, 9 Ha. 415 ; Rollins ». Hinks, L, &. 13 Eq. 361. As to disputing the validity of a patent, see Whiting v. Tuttle, 17Gr. 454. And see also as to novelty of invention, Abell v. McPherson, 17 Gr. 23 ; North v. Williams, 17 Gr. 179; Summersw. Abell, 15 Gr. 532. @ Hill», Thompson, 3 Mer. 622, 628; Bacon v. Jones, 4M. & C. 433, 436. And aee Powell v. Begley, 13 Gr. 381; Crosley v. Derby Gaslight Co. 1 R. & M. 166 n. 302 EQUITY JURISPRUDENCE. 697. There are some peculiar principles, applicable to cases of copyright, which are not generally applicable to patents for inventions. In the first place, no copyright can exist, consis- tently with principles of public policy, in any work of a clearly irreligious, immoral, libellous, or obscene description. In the case of an asserted piracy of any such work, if it be a matter of any real doubt, whether it falls within such a predi- cament or not, courts of equity will not interfere by injunction to prevent or to restrain the piracy, but will leave the party to his remedy at law(a). 698. In cases of copyright, difficulties often arise, in ascer- taining whether there has been an actual infringement thereof (b), which are not strictly applicable to cases of patents. It is, for instance, clearly settled, not to be any infringement of the copyright of a book, to make bona fide quotations or extracts from it, or a bona fide abridgment of it ; or to make a bona fide use of the same common materials in the composition of ano- ther work(c). But what constitutes a bona/fide case of extracts, or a bona fide abridgment, or a bona fide use of common materials, is often a matter of most embarrassing inquiry. The true ques- tion, in allcases of thissort is, whether there has been a legitimate use of the copyright publication, in the fair exercise of a mental operation, deserving the character of anew work. If there has been, although it may be prejudicial to the original author, it isnot an invasion of his legal rights. If there has not been, then it is treated as a mere colourable curtailment of the original work, and a fraudulent evasion of the copyright(d). (a) Story, s. 936; Walcot v. Walker, 7 Ves. 1; Southey v. Sherwood, 2 Meriv. 435 ;. Lawrence v. Smith, Jac. 471. : (bd) Hereford v. Griffin, 16 Sim. 190; Kelly v. Morris, L. R. 1 Eq. 697 ; Morris v. Ashbee, L. R. 7 Eq. 34; Morris v. Wright, L. R. 5 Chan. 279. (c) Lewis v. Fullarton, 2 Beav. 6; Campbell v. Scott, 11 Sim. 31. And see Mack ». Petter, L. R. 14 Eq. 431; McCreav. Holdsworth, L. R. 6 Chan. 418 ; Holdsworth v. McCrea, L. R. 2 H. L, 380; Pike v. Nicholas, L. R. 5 Chan. 251; Levy v. Rutley, L. R. 6 C. P. 523 ; Wood ». Chart, L. R. 10 Eq. 193. (a) Wilkins v. Aikin, 17 Ves. 425; Longman v. Winchester, 16 Ves. 269 ; Matthew- son v. Stockdale, 12 Ves. 270; Cary v. Fadden, 5 Ves. 24; Jarrold v. Houston, 3 K. & J. 708; Stevens v. Benning, 6 D. M. & G. 223; Reade wv. Bentley, 3K. & J. 278; 4K.&J. 656. And see Bogue. Houlston, 5 D. & Sm. 267 ; Bradbury v. Hotten, L. R. 8 Ex. 1; Gambart v. Ball, 140. B n.s. 306; Murray v. Bogue, 1 Drew. 353; Leader v, Purday, 18 L. J. nN, 8. C. P. 97; Wood v Boosey, L, R.3Q. B, 223, INJUNCTIONS. 803: 699, The general doctrine on copyright in publications of: the class of maps, charts, road-books, calendars, chronological’ and other tables, is not easily reducible to any accurate defini-- tion. The materials being equally open to all, there must be a close identity or similitude in the very form and use of the common materials. The difficulty here, is, to distinguish what. belongs to the exclusive labours of a single mind from what are the common sources of the materials [of the knowledge. used by all. Suppose forinstance, the case of maps; one man may publish the map of a country; another man, with the same design, if he has equal skill and opportunity, may by his. own labour produce almost a fac-simile. He has certainly a tight so to do ; he is not at liberty to copy that map, and claim it as hisown. He may work on the same original materials, but he cannot exclusively and evasively use those already collected and embodied by the skill, industry, and expendi-- ture of another. The fact of copy or no copy, is generally ascertained in the absence of direct evidence, by the appear- ance in the alleged copy ofthe same inaccuracies or blunders,, that are to be found in the first published work. But this isa mode of inference which must be applied with caution(a). 700. As to private letters, whether on literary subjects, or on matters of private business, personal jriendships, or family concerns, it is not easy to lay down any definite rule as to how far eyuity will interfere to restrain their publication. It may,. however, be safe to assume that the cases on this subject es- tablish the following proposition(6). (1) That the writer of pri-- vate letters has such a qualified property in them, as will entitle him to an injunction to restrain their publication by the party written to, or his assignees(c). (2) That the party writ-- ten to has such a qualified right of property in the letters written to him, as will entitle him or his personal representa- (a) Story, s. 939; Wilkins ». Aikin, 17 Ves. 424 ; Longman v. Winchester, 16 Ves. 269, 271 ; Matthewson v. Stockdale, 12°Ves. 270 ; Cary v. Fadden, 5 Ves. 24. And see- Campbell v. Scott, 11 Sim. 31. (6) Drew. on Inj. 208. (c) Popejv. Curl, 2 Atk. 342 ; Gee v, Pritchard, 2 Sw. 402. 304 EQUITY JURISPRUDENCE. tives to restrain the publication of them by a stranger(a). (8) That such qualified right may be displaced by reasons of public policy, or by some personal equity(é). 701. A court of equity will interfere to restrain the publica- tion of unpublished manuscripts. In cases of literary, scien- tific, and professional treatises in manuscript, it is obvious that the author must be deemed to possess the original ownership, and be entitled to appropriate them to such uses as he shall please. Nor can he justly be deemed to intend to part with that ownership, by depositing them in the possession of a third person, or by allowing a third person to take and hold a copy of them. Such acts must be deemed strictly limited, in point of right, use and effect, to the very occasions expressed or im- plied, and ought not to be construed as a general gift or authority for any purposes of profit or publication to which the receiver may choose to devote them. The property, then, in such manuscripts not having been parted with in cases of this sort, if any attempt is made to publish them without the consent of the author or proprietor, it is obvious that he ought to be entitled to protection in equity(c). 702 Questions sometimes arise in regard to the equitable interest of publishers in copyrights by virtue of contracts with the authors, for successive editions. Where publishers agreed with an author to print, reprint, and publish a work at their own risk, upon certain specified terms, and that, if other edi- tions should be required, the author should make the necessary alterations and additions, and the publishers should publish all subsequent editions upon the same terms, and after several changes in the partners of the house and the bankruptcy of the last survivor of the original contractors, the assignees, with (a) Earl of Granard v. Dunkin, 1 B. & B. 207; Thompson v. Stanhope, Amb. 739. (6) Lord Perceval v. Phipps. 2 V. & B. 19. (c) Story, s. 943. See Prince Albert », Strange, 1 Mac. & G. 25; Duke of Queens- berry v. Shebbeare, 2 Ed. 329; Southey v. Sherwood, 2 Meriv. 435, 436; Macklin w Richardson, Ambl. 694 ; Pope v. Curl, 2 Atk. 343. And where a person delivers sci- entific or literary oral lectures, it is not competent for any person who is privileged to hear them, to publish the substance of them from his own notes, Abernethy v. Hut- chinson, 3L. J. Ch. 209. INJUNCTIONS. 305 the soivent partners of the new firm, to whom the work had been assigned by their predecessors, assigned to other law publishers all the interest of the firm in the work and all the unsold copies, it was held that the purchasers had no share in the copyright of the work, and were not entitled to an injunc- tion to restrain the publication of a new edition by another publisher with the author’s concurrence. The agreement was held to be of a personal nature on both sides, and the benefit. of it not assignable, except by mutual consent of the parties(a). 703. In cases of the invasion of a copyright by using the same materials in another work, of which a large proportion is original, it constitutes no objection that an injunction will in effect stop the sale and circulation of the work which so infringes upon the copyright. Ifthe parts which are original cannot be separated from those which are not original, with- out destroying the use and value of the original matter, he who has made the improper use of that which did not belong to him must suffer the consequences of so doing. If a man mixes what belongs to him with what belongs to another, and the mixture is forbidden by the law, he must again separate them, and bear all the mischief and loss which the separation may occasion(b). 704. Where a dramatic performance has been allowed by the author to be acted at a theatre, no person has a right to pirate such a performance, and to publish copies of it surrep- titiously, or to act it at another theatre without the consent of the author or proprietor ; for his permission to act it at a pub- lic theatre does not amount to an abandonment of his title to it, or to a dedication of it to the public at large(c). 705. An injunction will also be granted against publishing a magazine in a party’s name who has ceased to authorize (a) Story, s. 941 a; Stevensv. Benning, 6 D. M. & G. 223, See also Reade v. Bent- ley, 3 K. & J. 278; 4 K. & J. 656; Jarrold v.» Heywood, 18 W. R. 279; Pike «. Nicholas, 18 W. R. 321. See also Morris v. Wright, 18 W.R. 327; Taylor v. Pillow, L, R.7 Eq. 418. (b) Story, s. 942 ; Mawman v. Tegg, 2 Russ. 390 (c) See Morris v. er 1J. & W.481. \ 306 “EQUITY JURISPRUDENCE. it(a), or, from assuming the name of a newspaper, published by the plaintiff, for the fraudulent purpose of deceiving the public and supplanting the plaintiff in the good-will of his own newspaper. 706. On similar principles, an injunction will be granted to restrain the owner from running omnibuses, having on them such names and words, and devices, as to form a colorable imitation of the words, names, and devices on the omnibuses of the plaintiff; for this has a natural tendency to deprive the plaintiff of the fair profits of his business, by attracting cus- tom under the false representation that the omnibuses of the defendant belong to and are under the management of the plaintiff). 707. So, also, an injunction will be granted to prevent the use of names, marks, letters, or other indicia of a tradesman, by which to pass off goods to purchasers as the manufacture of that tradesman, when they are not so(c). 708. With regard to the use of trade marks, and generally as to the enjoyment of a particular trade designation, the right to protection does not seem to depend upon a property in them, but on the principle that the court will not allow fraud to be practised on private individuals, or upon the public(d). The test of the infringement of a trade-mark is, whether the acts complained of on the part of the defendant are likely to mislead the public into the belief that in dealing with the de- fendant they are procuring a different article, and the one originally sold under the plaintifi’s mark instead of the one they in fact obtain(e). (a) Hogg v. Kirby, 8 Ves. 215. (6) Knott v. Morgan, 2 Keen, 213, 219, (c) Perry v. Truefitt, 6 Beav. 66; Gout . Aleploglu, 6 Beav. 69, note. And see Wotherspoon v. Currie, L. R. 5 H. L. 508; Seixo v, Provezende, L, R. 1 Chan. 192; - Hirst v. Denham, L. R. 14 Eq. 542; Cocks 7. Chandler, L. R. 11 Eq. 446; Upmann v. Elkan, L. R. 12 Eq. 140; 7 Chan. 130; James x. J ames, L. R, 13 Eq. 421; Mar- shall v. Ross, L. R. 8 Eq. 651. (a) Farina v, Silverlock, 6 D. M. & G. 217; Burgess v. Burgess, 3 D. M. & G. 897. See Marshall v. Ross, 17 W. R. 1086; Hudson v. Bennett, 12 Jur. N. 5, 519; Bass tv. Dawber, 19 L. T. nN. s. 626. ‘ (2 Williams v. Osborne, 13 L. T. n. s. 498; Lee v. Haley, L. R.5 Chan. 155; Ains- worth v. Walmsley, L. R. 1 Eq. 518; Radway vr. Coleman, 15 Gr. 50. ; INJUNCTIONS. 307 709. Thus, an injunction will be granted against vending an article of trade under the name of a party, with false labels, to the injury of the same party, who has already acquired a reputation in trade by it(a). But it has been refused, when sought against a chemist for selling a quack medicine under a false and colorable representation that it was the medicine of the plaintiff, an eminent physician, who had not any such medicine of his own, with which the quack medicine could come in competition(b). 710. A foreign manufacturer may file his bill in equity in this Province, for an injunction and account of profits, against a manufacturer in this country, who has committed a fraud upon him by the use of his trade-mark, for the purpose of in- ducing the public to believe that the goods so marked were manufactured by such foreigner. This relief is founded upon the personal injury caused the plaintiff by the defendant’s | fraud, and the right to such relief exists, although the plaintiff resides and carries on his business in another country, and has no establishment in this Province, and does not sell his goods here(c). 711. And where one sells his share in a partnership busi- ness then in operation, it imports the sale of the good-will of the business. This comprehends every positive advantage which has been acquired by the firm in carrying on its busi- ness, whether connected with the place or the name of the firm; but it does not imply a prohibition against the retiring partner carrying on the same business in the same place, so that he do it under such a name as not to give the impression that he is the successor of the old firm. He will be restrained from doing this by injunction(d). (a) Motley v. Downman, 3 M. & C. 14; Millington v. Fox, 3 M. & C. 338; Perry 7. Truefitt, 6 Beav. 66; Franks v. Weaver, 10 Beav. 297 ; Barnett v. Lenchars, 13 L. T. N. 8. 495, (v) Clark v. Freeman, 12 Jur. 149. (c) See The Collins Company v. Brown, 3 K. & J. 423; The Collins Co. v. Cowen, 3K. & J. 428. See also Seixo v. Provezende, 12 Jur. n. 3. 215; Leather Cloth Com- pany v. American Leather Cloth Company, 11 Jur. y. s. 513; Emperor of Austria v. Day, 7 Jur. n.'s. 483, 639. (@ Churton v. Douglas 5 Jur. y. s. 887; Mossop v. Mason, 16 Gr. 302; 17 Gr. 36". And see Aikins v. Piper, 15 Gr. 581; Banks v. Gibson, 34 Beav. 566. 808 EQUITY JURISPRUDENCE. 712. The vendor of a business and good-will may, in the absence of express stipulation, set up another business of the same kind, and may publicly advertise the fact, but must not privately, by letter, personally, or by a traveller, solicit cus- tomers of the old business to cease dealing with the purchaser and to give their custom to himself(a). 718. The good will of a business, which in general imports the tendency of business to a particular house, is held not to be applicable to solicitors, and a contract for the sale of such a good-will is not susceptible of specific performance in a court of equity(b). But the good-will of such a business may fairly be sold for a pecuniary consideration. 714. An injunction restraining a person from carrying ona business within a fixed distance from a certain spot, imports distance, not by the road, but by astraight line in a horizontal plane(c). In order to claim relief by way of injunction, it is not requisite to show a fraudulent purpose in the defendant. It is sufficient if the similarity of title has led, and is likely to lead, to mistakes(d). 715. If the defendant, in a suit for the protection of a trade- mark, offers the plaintiff, after an interim injunction has been granted, in order to avoid further litigation, to pay all costs and to give an undertaking not to use the trade-mark com- plained of, and the plaintiff notwithstanding persists in carry- ing the suit toa hearing, the injunction will be made perpetual, but no further costs after the offer will be allowed, inasmuch as the plaintiff has obtained nothing by the hearing which he could not have secured without(e). 716. Courts of equity willalso restrain a party from making a disclosure of secrets communicated to him in the course of a confidential employment, And it matters not, in such cases, (a) Labouchere v, Dawson, L. R. 13 Eq. 322. (b) Austen v. Boys,2D. & J. 626 ; 24 Beav. 598. (c) Duignan c. Walker, 5 Jur. y. s. 976. (d) Story, s. 951d; Clement v. Maddick, 5 Jur. n.s. 592. (e) Story, 8.951 f ; Hudson v, Bennett, 12 Jur. n. s, 51% INJUNCTIONS. 309 whether the secrets be secrets of trade or secrets of title, or any other secrets of the party, important to his interests(a). Thus, a party has been restrained from using the secret of compounding a medicine not protected by patent, when it appeared that the secret was imparted to him, to his own knowledge, in breach of faith or contract, on the part of the person so communicating it(b). 717. Other cases of special injunctions, granted to prevent a total failure of remedial justice, may be mentioned. Thus, courts of equity will interfere, to restrain a vendor from selling to the prejudice of the vendee, pending a bill for the specific performance of a contract respecting the estate; for it might put the latter to the expense of making the purchaser a party, in order to give perfect security to his title(c). 718. In like manner, sales may be restrained in all cases where they are inequitable, or may operate as a fraud upon the rights or interests of third persons as in cases of trusts, and special authorities, where the party is abusing his trust or authority(d). And where sales have been made to satisfy certain trusts and purposes, and there is danger ofa misappli- cation of the proceeds, courts of equity will also restrain the purchaser from paying over the purchase-money(e). And, generally, where the necessity of the case requires it, a court of equity will interfere to prevent a defendant from affecting property in litigation, by contracts, conveyances, or other acts (7). 719. Cases of injunctions against a transfer of stocks, of an- (a) Cholmendeley v.\Clinton, 19 Ves. 261, 267 ; Evitt v. Price, 1 Sim. 483 ; Yovatt v. Winyard, 1 J. & W. 394. (b) Story, s. 952; Morrison v. Moat, 15 Jur. 787. ne see Williams v. Williams, 3 Meriv. 159; Green v. Folgham, 15. & S. 398. (c) Echliff v. Baldwin, 16 Ves. 267; Curtis ». Marquis of Buckingham, 3 V. & B. 168; Daly v. Kelly, 4 Dow, 440. (d) Anon., 6 Mad. 10. See Parrott v. Congreve, 13 Jur. 398. (e) Green v. Lowes, 3 Bro. C. C. 217 ; Matthews c. Jones, 2 Anstr. 506 ; Hawkshaw v. Parkins, 2 Swanst. 549. (f) Story, s. 954; Shrewsbury &c. ‘R. Oo. v. Shrewsbury and B, R. Co. 1 Sim. N. 8. 410; The Great W. R. Co. v. The Birmingham é&c. R. Co., 12 Jur. 106; 2 Ph. 597. 310 EQUITY JURISPRUDENCE. nuities, of ships, and of negotiable instruments, furnish appro- priate illustrations of the same principle(a). 720. The question has been made, how far a court of equity has jurisdiction to interfere in cases of public functionaries, who are exercising special public trusts or functions. As to this, the established doctrine now is, that so long as those functionaries strictly confine themselves within the exercise of those duties which are confided to them by the law, the court will not interfere. The court will not interfere to see whether any alteration or regulation which they may direct is good or bad; but, if they are departing from that power which the law has vested in them, if they are assuming to themselres a power over property which the law does not give them, the court no longer considers them as acting under authority of their commission, but treats them, whether they be a corporation or individuals, merely as persons dealing with property without legal authority(d). 721. Where land is sold with a covenant from the grantee, or upon condition that the erections upon it shall be of a pre- scribed character. The performance of such stipulations will be enforced in equity by restraining any departure from them (c). The same principle is applied to cases of personal pro- perty, bequeathed as heirlooms, or settled in trust to go with particular estates. Thus, for example, household furniture, plate, pictures, statues, books, and libraries, are often be- queathed or settled in trust, to go with the title of certain family mansions and estates. In such cases courts of equity will enforce a due observance of the trust, and restrain the parties having a present possession from wasting the property, or doing any acts inconsistent with the trust(d). _ (a) Terry v, Harrison, Bunb. 289; Chedworth v. Edwards, 8 Ves. 46; Stead v Clay, 1 Sim. 294; Hood v. Aston, 1 Russ. 412; Thompson v. Smith, 1 Mad. 395; Rogers v. Rogers, 1 Anstr. 174. (b) Story, s. 955 ; Frewinv. Lewis,4 M. & C. 254. See Grenville-Murray v. Cla- rendon, L. R.9 Eq. 11; Att.-Gen. v. Kirk ; Kirk v, The Queen, L, R. 14 Eq. 558. (c) Coles v. Sims, Kay, 56 ; Child v. Douglas, Kay, 560; Piggott v. Stratton, Jobn. 341. See also Rowbotham v. Wilson, 6 Jur. nN. s. 965; 3 Jur. nN. s. 1297. Western v. Macdermot, 12 Jur. nN. 8. 366; Harrison v. Good, L. R. 11 Eq. 338. (d@) Cadogan v. Kennet, Cowp. 435, 436 ; Co. Litt. 20 a ; Hargrave’s note [5]. INJUNCTIONS. 311 722. An injunction will also be granted to restrain the sail- ing of a ship, upon the application of a part owner, whose share is unascertained; in order to ascertain that share, and to obtain security for the due return of the ship(a). 723. Where a party had been induced, by fraudulent mis- representations or misunderstanding, to accept a lease of coal mines at a certain rent, which he had covenanted to pay, and also to work the mines, it was held that the court of equity would not restrain an action for the rent, although the coal proved to be not worth the expense of working, but that, if a suit were to be brought upon the covenant to work the mine, the court would interfere(b). 724. Injunctions will also be granted to compel the due ob- servance of personal covenants, where there is no effectual remedy at law. Thus, in the old case of the parish bell, where certain persons owning a house in the neighbourhood of a church entered into an agreement to erect a cupola and clock, in consideration that the bell should not be rung at five o'clock in the morning to their disturbance, the agreement being violated, an injunction was afterwards granted to pre- vent the bell being rung at that hour(c). 725. Upon the same ground a celebrated play writer, who had covenanted not to write any dramatic performances for another theatre, was, by injunction, restrained from violating the covenant(d). So, an author, who had sold his copyright in a work, and covenanted not to publish any other to its pre- judice, was restrained by injunction from so doing(e). (a) Haly v. Goodson, 2 Meriv. 77; Christie ». Craig, 2 Meriv. 137. But see Castelli v. Cook, 13 Jur. 675. (b) Ridgway v. Sneyd, Kay 627. 5 (c) Story, s. 958; Martin v. Nutkin, 2 P. W. 266. See Soltau 7. De Held, 2 Sim. N. 8. 133. (d) Morris v, Colman, 18 Ves. 437. And see Montague v. Flockton, L. R. 16 Eq. 189. But see Kemble v. Kean, 6 Sim. 333; Rolfe v. Rolfe, 15 Sim. 88 ; Hills v. Croll, 2 Ph. 60. (c) Barfield v. Nicholson, 2S. & 8.1; Kimberley ». Jennings, 6 Sim. 340. 312 EQUITY JURISPRUDENCE. 726. Notwithstanding some apparent vacillation in the de- cisions of the English courts of equity, in regard to the pro- priety of enforcing the negative portion of a contract by in- junction, where they cannot enforce the specific performance of the affirmative counter stipulations, which constitute the main basis of the contract, it seems now to be left to depend very much upon the character of such stipulations(a). ‘727. Courts of equity also interfere, and effectuate their own decrees in many cases by injunctions, in the nature of a ju- dicial writ or execution for possession of the property in con- troversy ; as, for example, by injunctions to yield up, deliver, quiet, or continue the possession, followed up by a writ of assistance(b). 728. The granting or #efusing of injunctions is a matter resting in the sound discretion of a court of equity(c); and, consequently, no injunction will be granted whenever it will operate oppressively, or inequitably, or contrary to the real justice of the case; or, where it is not the fit and appropriate mode of redress under all the circumstances of the case; or, where it will or may work an immediate mischief, or fatal in- jury. Thus, for example, no injunction will be granted to restrain a nuisance, by the erection of a building, where the erection has been acquiesced in, or encouraged by the party seeking the relief(d). 729. An injunction will not be granted in cases of gross laches or delay by the party seeking the relief in enforcing his rights; as, for example, where, in case of a patent or a copy- right, the patentee has lain by, and allowed the violation to go on for a long time, without objection, or seeking redress(e). (a) Story, s. 958 a. (6) Stribley v. Hawkie, 3 Atk. 275; Penn v. Lord Baltimore, 1 Ves. Sen. 454; Dove v. Dove, 1 Cox, 101; 1 Bro. ©. C. 375; 2 Dick. 617; Huguenin v. Baseley, 15, Ves. 180; Roberdeau v. Rous, 1 Atk. 543. (c) Bacon v. Jones, 4 M. & C. 433; Branywell v. Halcomb, 3 M. & OC. 737. (ad) Williams v. Earl of Jersey, Cr. & Ph. 91. (e) Saunders v. Smith, 3M. & C. 711; Lewis v. Chapman, 3 Beav. 133. | INJUNCTIONS. 313 730. Covenants may also be of such a nature as ought not, in equity, to be specifically enforced by injunction, in con- sideration of the unreasonable and inconvenient consequences. which may ensue therefrom. Thus, where it was covenanted by the lessee of an inn, that he would keep it open, and not discontinue it, the court refused to grant an injunction to en- force the specific performance of the covenant(a). It is obvi-. ous, that the granting of the injunction in such a case might be utterly useless, and moreover, be attended with ruinous. consequences to the lessee. 731. Upon similar principles a court of equity will not by injunction compel a person to fulfil a contract to write dra-- matic performances for a particular theatre(b); or, to act a cer-- tain number of nights at a particular theatre(c), or to compel an employer to retain a servant, agent, or manager ; or to re-- strain him from excluding such person(d), or to furnish maps, which the plaintiff is to have the sole privilege of engraving’ and publishing(e). 732. Courts of equity will not interfere by injunction to: restrain corporators from applying to the legislature either of the country, or of a foreign country, where the grant was. originally in another country, for an enlargement of the pow-- ers of the corporation(f). And those courts will not interfere with grants obtained by resident citizens of the country, in foreign countries, in order to determine how far such grants. interfere with each other. But a foreign sovereign, having’ “entered into a contract with British subjects, and subsequently made another grant, in derogation of the first concession, the English courts will not restrain the second grantee from doing” in a foreign country, whatever they are authorized to do by the sovereign power there(g). But the court has jurisdiction. (a) Hooper v. Brodrick, 1] Sim. 47. (8) Morris v. Colman, 18 Ves. 437. (:) Kemble v. Kean, 6 Sim. 333. But see Lumley v. Waewr, 16 Jur. 871. (d) Stocker v. Brockelbank, 3 Mac. & G. 250. (e) Baldwin v. Society for Diffusing Useful Knowledge, 9 Sim. 393. (f) Bill v. Sierra Nevada, L W. & M. Company, 1 D. F. & J. 177. (g) Gladstone v. Ottoman Bank, 9 Jur. n. s. 246; 1 H. & M. 505. 314 EQUITY JURISPRUDENCE. ‘at the suit of one citizen against another citizen, in whose hands a fund is placed, subject, at law, to the sole control of a foreign sovereign or ambassador, to restrain the defendant from parting with the fund upon the order of such foreign sover- eign or ambassador(a). 733. It has recently been decided, that, where a court of ‘one country is called upon to enforce a contract entered into ‘in another, it is not enough that the contract is valid by the law of the country where it is entered into. For if any part -of the contract be inconsistent with the law and policy of the -country where it is sought to be enforced, it will not there be carried into effect, even as to particulars which are not obnox- ious to the spirit of the law of that country(d). 734. Courts of equity constantly decline to lay down any ‘rule which shall limit their power and discretion as to the ‘particular cases in which such injunctions shall be granted or withheld. And there is wisdom in this course; for it is im- ‘possible to foresee all the exigencies of society which may ‘require their aid and assistance to protect rights, or redress wrongs. The jurisdiction of these courts, thus operating by ‘way of special injunction, is manifestly indispensable for the purposes of social justice in a great variety of cases, and there- fore should be fostered and upheld by a steady confidence. At the same time, it must be admitted that the exercise of it is attended with no small danger, both from its summary na- ‘ture and its liability to abuse. It ought, therefore, to be guarded with extreme caution, and applied only in very clear cases ; otherwise, instead of becoming an instrument to pro- ‘mote the public, as well as private welfare, it may become a means of extensive, and, perhaps, of irreparable injustice(c). (a) Gladstone v. Mussurus Bey, 9 Jur. N. s. 71; 1 H. & M. 495, (b) Hope v. Hope, 8 D.:M. & G. 731. (c) Story, s. 959 b. See the remarks of Lord Cottenham on this subject, in Brown v. Newall, 2M. & C. 570, 571. Also, Lord Brougham’s remarks in the case of the Earl -of Ripon v. Hobart, 3 M. & K. 169. See also Barnard v. Willis, Cr. & Ph. 85; Dur- :ham and Sunderland Railway Company v. Wawn, 3 Beay. 119. INJUNCTIONS. 815 735. Where the granting of the injunction may be attended with damage to the defendant, the court will not grant it, in the first instance, without a bond or undertaking on the part of the plaintiff to pay such damages as the defendant may sus- tain by the order, should the injunction be dissolved, or the suit finally determined in favour of the defendant(a). And where the party, obtaining an injunction has given security, or has undertaken to abide by any order the court may make respecting damages to the adversary, and the question is finally decided against the application, the defendant is en- titled to have the damages ascertained and paid ; and a mere dismissal of the cause, with costs to defendant, is not a suffici- ent ascertainment of the damages(b). 736. Courts of equity will not interfere to stay proceedings in any criminal matters, or in cases not strictly of a civil nature, as for instance, on an indictment, or a mandamus, or an information(c). But this restriction applies only to cases where the parties seeking redress by such proceedings are not the plaintiffs in equity; for if they are, the court possesses power to restrain them personally from proceeding at the same time, upom the same matter of right, for redress in the form of a civil suit and of a criminal prosecution(d). CHAPTER XXIV. TRUSTS. 737, A TRUST in the most enlarged sense in which that term is used in English jurisprudence, may be defined to be an equitable right, title, or interest in property, real or personal, distinct from the legal ownership theteof(e). In other words, (a) 28 Vic. ¢. 17, s. 3. (b) See Newby v. Harrison, 7 Jur. n. 8. 981; Novello v. James, 5 D. M. & G. 876. (c) Holderstaffe v. Saunders, 6 Mod. 16; Montague v. Dudman, 2 Ves. Sen. 396. (@) Mayor of York v. Pilkington, 2 Atk. 302. “(e) See the language of Lord Hardwicke, in Sturt v. Mellish, 2 Atk. 612; 2 Spence, 875. And see2 Black. Comm. 327; Co. Litt. 272%; Bacon Abr. Uses and Trusts, A. B.; Com. Dig. Chan. 4 W. 316 EQUITY JURISPRUDENCE. the legal owner holds the direct and absolute dominion over the property in the view of the law; but the income, profits, or benefits thereof in his hands, belong wholly or in part, to others. The legal estate in the property is thus made subser- vient to certain uses, benefits, or charges in favour of others ; and these uses, benefits, or charges constitute the trusts, which courts of equity will compel the legal owner, as trustee, to perform in favour of the cestui que trust, or beneficiary. Three things are said to be indispensable to constitute a valid trust; first, sufficient words to raise it; secondly, a definite subject; and thirdly, a certain or ascertained object(a). 738. Lord Coke, describing the nature of a use or trust in land according to the common law, uses the following lan- guage: A use is a trust or confidence reposed in some other, which is not issuing out of the land, but as a thing collateral. annexed in privity to the estate of the land, and to the person touching the land, scilicet, that cestui que use, (the beneficiary) shall take the profit, and that the terre-tenant shall make an estate according to his direction. So as cestud que use had nei- ther jus in re, nor jus ad rem, but only a confidence and trust for which he had no remedy by the common law, but for breach of trust his remedy was by subpcena in chancery(6). 739. The introduction of uses and trusts into England has been generally attributed to the ingenuity of the clergy, in order to escape from the prohibitions of the Mortmain Acts. But, whether this be the true origin of them or not, it is very certain that the general convenience of them in subserving the common interests of society as well as in enabling parties to escape from forfeitures in times of civil commotion, soon gave them an extensive public approbation, and secured their permanent adoption into the system of English jurisprudence (c). And they have since been applied to a great variety of (a) Story, s. 964; Cruwys v. Colman, 9 Ves. 323. (b) Co. Litt, 2726 ; Chudleigh’s case, 1 Co. 121,a 6; Bac. Abridg, Uses and Trusts, .\. B. ; Com. Dig. Chan. 4 W. (c) 2 Black. Comm. 328, 329; Bac. Abridg. Uses and Trusts, A. B. See also Lloyd ce. Spillet, 2 Atk. 149 ; Hopkins v7. Hopkins, 1 Atk, 591. TRUSTS. 317 cases, which never could have been in the contemplation of those who originally introduced them ; but, which, neverthe- less, are the natural attendants upon a refined and cultivated state of society, where wealth is widely diffused, and the ne- cessities and conveniences of families, or commerce, and even of the ordinary business of human life, require that trusts should be established, temporary or permanent, limited or general, to meet the changes of past times, as well as to pro- vide for the exigencies of times to come(q). 740. The inroads which uses had made, and were making on the ancient law of tenure, caused the enacting of the Statute of Uses(b), the general intent of which was to transfer the use into possession, and to make the cestui que use complete owner of the lands, as well at law asin equity(c). But as the statute did not in its terms apply to all sorts of uses, and was construed not to apply to uses ingrafted on uses, it failed in a great measure to accomplish the ends for which it was de- signed. Thus, for example, it was held not to apply to trusts or uses created upon term of years; or to trusts of a nature requiring the trustee still to hold out the estate, in order to per- form the trusts; and generally not to trusts created in relation to mere personal property(d). 741. With regard to trusts of all those classes of property therefore, the rules applied after the statute, were the same that they were subject to before it was passed. 742. Before the Statute of Frauds(e), trusts of every species of property might have been created without any writing, but that statute requires all declarations or creations of trusts or confidences of any lands, tenements, and hereditaments to be manifested and proved by some writing, signed by the party, (a) Story, s. 969. (b) 27 Hen. 8, c. 10. (c) 2 Black. Comm. 332, 333; Co. Litt, 27] 6, Butler’s note. (2) 2 Black. Comm, 335 to 337; Sympson v. Turner, 1Eq Abridg. 383; Co. Litt. 290 b, note; Co. Litt. 2716; Bac. Abridg. Uses and Trusts, B. C. D. G.2H.; Trusts, AL (e) 29 Car. 2. ¢, 3. 318 EQUITY JURISPRUDENCE. entitled to declare such trusts, or by his last will in writing(a). And all grants and assignments of any trust or confidence are likewise required to bein writing. Trusts arising, transferred, or extinguished by operation of law are excepted ; and from the terms of the statute it is apparent that it does not extend to declarations of trusts of personalty(6). Neither does it pre- scribe any particular form or solemnity in writing; nor that the writing should be under seal. 743. Any writing sufficiently evincive of a trust, as a letter, or other writing of a trustee, stating the trust, or any language in writing, clearly expressive of a trust, intended by the party, although in the form of a desire or a request, or a recommend- ation, will create a trust by implication(c). And where a trust is created for the benefit of a third person, although without his knowledge, he may afterwards affirm it, and enforce the execution of it in his own favour at least, if it has not, in the intermediate time, been revoked by the person who has created the trust(d). 744, Uses or trusts, to be raised by any covenant or agree- ment of a party in equity, must be founded upon some merit- orious or some valuable consideration ; for courts of equity will not enforce a mere gratuitous gift, or a mere moral obli- gation(e). Hence it is, that, if there be a mere voluntary executory trust created, courts of equity will not enforce it (f). And, upon the same ground, if two persons for a valuable (a) But where it would work a fraud todeny the trust, the defendant will not be allowed to set up the statute, Haigh v. Kaye, L. R. 7 Chan. 469. (0) Nab v. Nab, 10 Mod. 404; Fordyce ». Willis, 3 Bro. C. C. 586; 2 Black. Comm. 687 ; Benbow v. Townsend, 1 M. & K. 506; McFadden v. Jenkins, 1 Ph. 157. (ce) Crooke v. Brookeing, 2 Vern. 106 ; Inchiquin v. French, 1 Cox 1; Smith v. Atter- soll, 1 Russ. 266. (d) Acton v. Woodgate, 2M. & K. 492; Wallwyn v. Coutts, 3 Meriv. 707; 3 Sim. 14 ; Garrard v. Lord Lauderdale, 3Sim.1. See Simmonds». Palles, 2 J. & L. 489, 495 ; Maber v. Hobbs, 2 Y. & C. Ex. 317; Lane v. Husband, 14 Sim. 656. But the assignee can sue for, and recover from third parties, the property covered by the assign- ment, Glegg v, Rees, L. R.7 Chan. 71. (e) Colman v, Sarrel, 1 Ves. 53, 54 ; Colyear 7, Countess of Mulgrave, 2 Keen, 81, 97, 98; Ellis ». Nimmo, Ll. & G. t, Sug. 333; Holloway v, Headington, 8 Sim. 324; Gaskell v. Gaskell, 2 Y. & Jerv. 502. But see Moore v. Crofton, 3 J. & L, 433. (f) Colyear v, Countess of Mulgrave, 2 Keen, 81; Collinson v. Pattrick, 2 Keen, 123, 134; Holloway v. Headington, 8 Sim. 329; Callagan 7. Collagan, 8 Cl. & Fin, 374, 401. See Jones v. Lock, L, R. 1 Chan. 25 ; Scales v. Maude, 6 D. M. & G. 43. TRUSTS. 319 consideration, as between themselyes, covenant to do some act for the benefit of a third person, who is a mere stranger to the consideration, he cannot enforce the covenant against the two, although each one might enforce it against the other(a). 745. In cases where the use or trust is already created and vested, or otherwise fixed in the cestud que trust, it is otherwise (b), or where it is raised by a last will and testament(c). Thus, for example, if A. should direct his debtor to hold the debt in trust for B., and the debtor should accept the trust, and com- municate the fact to both A. and B., the trust, although volun- tary, would be enforced in favour of B., and binding on A., for nothing remains to be done to fix the trust. So, if A. had declared himself trustee for B. of the same debt, the same doctrine would apply(d). 746. Trusts in real property are, in many respects, governed by the same rules as the like estates at law, and afford an illus- tration of the maxim equitas sequitur legem. Thus, they are descendible, devisable, and alienable; and heirs, devisees, aad alienees may, and generally do, take therein the same interests. in point of construction and duration, and they are affected by the same incidents, properties, and consequences, as would under like circumstances apply to similar estates at law(e). 747. There are, however, exceptions to the doctrine above stated. Thus, for example, the construction put upon execu- tory trusts arising under agreements and wills, sometimes differs, in equity, from that in regard to executed trusts. And trusts in terms for years and personalty will be often recog- (a) Sutton v. Chetwynd, 3 Meriv. 249; T. & R. 296. (b) See Richardson v, Richardson, L. R. 3 Eq. 686 ; Morgan v. Malleson, L, R. 10: Eq, 475; In re Curteis’ Trusts, L. R. 14 Eq. 217. : (c) Lechmere v. Earl of Carlisle, 3 P. W. 222; Austen v. Taylor, Ambl. 376; 1 Ed. 361; Petre v. Espinasse, 2M. & K. 496; Collinson v. Pattrick, 2 Keen, 123, 134, (d) Story, s. 973 ; McFadden *. Jenkins, 1 Ph, 152, See also Stapleton v. Stapleton, 14 Sim. 186. (e) Story, s. 974, 320 EQUITY JURISPRUDENCE. nized and enforced in equity, which would be wholly dis- regarded at law(a). 748. Where a trust is created for the benefit of a party, it is not only alienable by him by his own proper act and convey- ance, but it is also liable to be disposed of by operation of law in invitum, like any other property, although indirectly the very purposes of the trust may thereby be defeated. Thus, where certain estates were devised to trustees, in order, among other things, to pay an annuity to the testator’s son for life, the annuity being declared to be for his personal maintenance and support during his life, and not on any account to be sub- ject or liable to the debts, engagements, charges, and encum- brances of the son, but as the same became due, it was to be paid into the son’s hands, and not to any other person what- soever, it was held, that the annuity on the son becoming a bankrupt passed by the assignment under the bankruptcy to the assignees(b). 749. It is, however, in the power of the person creating the trust to prevent this. Thus, the testator might, if he had thought fit, have made the annuity determinable on the bank- ruptcy, or have made it to go over to another person in the event of the bankruptcy. But, while it was the property of the bankrupt, it must be subject to the ordinary incidents of property, and therefore, subject to his debts(c). 750. Ifa trust is created for a married woman for her sepa- rate use, and the trustees are to pay the money into her pro- per hands and for her use, her own receipt only being re- quired, she may still assign it, and her assignee will take the full title to it@d). The same rule will apply to the case of a (a) Story, s. 974; Co. Litt. 290, note; Austen v. Taylor, Ambl. 376; 1 Ed. 361; Massenburgh v. Ash, 1 Vern. 234, 304; Bac. Abridg. Uses and Trusts, G. s.2, 109. ‘See Stonor v. Curwen, 5 Sim. 264; Roberts v. Dixwell, West, 542; Countess of Lin- coln v. Duke of Newcastle, 12 Ves. 207. (0) Graves v. Dolphin, 1 Sim. 66; Piercy v. Roberts, 1M. & K.4. See Re Mugge- ridge’s Trusts, John. 625 ; Share Cosserat, 20 Beav. 470. (c) Brandon », Robinia, 18 Ves. 429, 433, See Rochford v. Hackman, 9 Ha. 475. (d) Brandon v. Robinson, 18 Ves. 434. But an express prohibition of alienation or anticipation will, in the case of a married woman, be binding, and if the intent clearly appears, this seems to be enough, without express words, see Arnold v, Wood- hams, L. R. 16 Eq. 29. TRUSTS. 321 trust fund in rents and profits created by a will for the benefit of a particular person during his life, although there be a pro- viso that he shall not have any power to sell, or to mortgage, or to anticipate in any way the rents and profits(«). 751. The analogy to estates at the common law is not only followed, as to the rights and interests of the cestud que trust, but also as to the remedies to enforce, preserve, and ex- tinguish those rights and interests. Thus, for instance, there cannot, strictly speaking, be a disseisin, abatement, or intru- sion, as to a trust estate. But there may be such an adverse claim of a trust estate by an adverse claimant, taking the rents and profits, as may amount to an equitable ouster of the right- ful claimant; and such, as if continued twenty years, would, by analogy to legal remedies, bar any assertion of his right in equity(b). 752. In general, a trustee can only be sued in equity in regard to any matters touching the trust(¢. Butif he chooses to bind himself by a personal covenant in any such matters, he will be liable at law for a breach thereof, although he may in the instrument containing the covenant, describe himself as covenanting as trustee ; for the covenant is still operative as a personal covenant, and the superadded words are but a des- criptio persone(d). 753. It is a maxim of equity that, “a trust shall not fail for want of a trustee.” Wherever the intention of the settlor can be clearly collected, and there is no want of consideration, the (a) Green z. Spicer, 1 R. & M. 395, () Cholmondeley v. Clinton, 2 J. & W. 1; Bond ». Hapking, 1S8.& L. 428; Hov- enden v, Annesley, 28. & L. 630, 636. And see Penny v, Allen, 7). M. & G. 422. As to statute barring claim for breach of trust, see Stone ». Stone, L. R. 5 Chan. 74. As to barring claim for account, see Burdick v. Garrick, L. R. 5 Chan. 233. As to barring claim under a trust term, Locking v, Parker, L. R. 8 Chan. 30. (c) The right to sue for a breach of trust cannot, it seems, be assigned, Hill ». Boyle, L. R. 4 Eq. 260, Long acquiescence in the breach will bar relief—Sleeman » Wilson, L. R. 13 Eq, 36. See Taylor v, Cartwright, L. R. 14 Eq. 167. As to right of cestui que trust to sue a debtor to the trust, see Sharp v. San Paulo R.Co., L. R. 8 Chan. 597, (@) Chapman and Barker’s case, L. R. 3 Eq. 361 ; In Re Great Whal. Busy Minin Co. L. R. 6 Chan. 196, ‘ 2k 822 EQUITY JURISPRUDENCE. court will follow the estate into the hands of the legal owner, not being a purchaser for value without notice, and compel him to'give effect to the trust by the execution of the proper assurance(a). Thus, ifa devisor or settlor appoint a trustee, who either dies in the testator’s lifetime(b), or disclaims, or is incapable of taking the estate(c), or if the trustee otherwise fail(d), the trust is not defeated, but fastens on the conscience of the person upon whom the legal estate has devolved. So, if a testator, directs a sale of his lands for certain purposes, but omits to name a person to sell, the trust attaches upon the con- science of the heir, and he is strictly bound in equity to give effect to the intention(e). 754. The power of a trustee over the legal estate or pro- perty vested in him, properly speaking, exists only for the benefit of the cestui que trust(f). It is true, that he may as legal owner do acts to the prejudice of the rights of the cestui que trust, and he may even dispose of the estate or property, so as to bar the interests of the latter therein; as by a sale to a bona Jide purchaser, for a valuable consideration without notice of the trust. But, when the alienation is purely voluntary, or where the estate devolves upon heirs, devisees, or other repre- sentatives of the trustee, or where the alienee has notice of the trust, the trust attaches to the estate, in the same manner as it did in the hands of the trustee himself, and it will be en- forced accordingly in equity(g). And although the trustee may, by a mortgage, or other specific lien, without notice of the trust, bind the estate or the property ; yet it is not bound by any judgments, or any other claims of creditors against him(h). (a) Att.-Gen. v. Lady Downing, Amb. 571. (b) Moggridge ». Thackwell, 3 Bro, C. C, 528; 1 Ves. 475. {c) Sonley v. Clockmakers’ Co., 1 Bro. C. C. 81; White v. Baylor, 10 Ir. Eq. 53. {d) Att.-Gen. v. Stephens, 3 M. & K, 347. (e) Pitt v. Pilliam, Freem. 134. And see 29 Vic. c. 28, ss. 13, 14 & 15. (f) See Lewis v, Matthews, L. R, 2 Eq. 177. (g) Pye v. George, 1 P. W. 128; Saunders v. Dehew, 2 Vern. 271. (hk) Story, s. 977. Astoa mortgage by an executor or trustee for the purposes of the trust, see Ewart v. Gordon, 13 Gr. 40, where the cases are collected and remarked on. TRUSTS. 323 755. It seems to be considered, that where the trustee holds the legal title in trust property, with the power to convert the same into money and apply the money to the purposes of the trust, a bona fide purchaser will hold the property free from all- trust. In order to enable the cestui que trust to follow the same into the hands of an assignee from the trustee, it must appear either that no consideration was paid or else that the assignee knew that the trustee was misapplying the trust estate and took the conveyance in aid of such misapplication. It is not enough that one who advances money, on the pledge of the trust estate, knew it was of that character, if he had no reason to doubt the right of the trustee so to use it(a). 156. What powers may be properly exercised over trust property, by a trustee, depends upon the nature of the trust, and sometimes upon the character and situation of the cestui que trust. Where the cestui que trust is of age, or sud juris, the trustee has no right (unless express power is given) to change the nature of the estate, as by converting land into money, or money into land, so as to bind the cestwi que tzust. But where the cestui que trust is not of age, it has been laid down that the trustee may change the nature of the estate, where the inter- ests of the infant require the conversion(}). But no trustee could be advised to take upon himself the responsibility of thus dealing with the estate, without the express sanction of the court(c). 757. It has also been laid down, as a general rule, that the cestui que trust may call upon the trustee for a conveyance to execute the trust(d) ; and that, what the trustee may be com- pelled to do by a suit, he may voluntarily do without a suit. But this rule admits, if it does not require, many qualifications in its practical application ; for, otherwise, a trustee may incur (a) Story, s. 977 a. See Newton v. Newton, L. R.6 Eq. 135; Boursot v. Savage, L. R. 2 Eq, 134. (0) Inwood ». Twynne, Amb, 419. (c) Hill on Trustees, 396; and see Lx parte Phillips, 19 Ves. 122; Witter v. Whitter, 3P.W. 101. © (d) See Servoise v. Duke of Northumberland, 1 J. & W. 559, 571. 324 EQUITY JURISPRUDENCE. wmany perils, the true nature and extent of which may not be ascertainable, until there has been a positive decision upon his acts by a court of equity, or a positive declaration by such a court of the acts, which he is at liberty to do(a). 758. Courts of equity carry trusts into effect only when they are ofa certain and definite character. If, therefore, a trust be clearly created in a party, but the terms by which it is created are so vague and indefinite, that courts of equity cannot clearly ascertain either its objects or the persons who are to take, then the trust will be held entirely to fail, and the property will fall into the general funds of the author of the trust(d). ¢ 759. Trusts are usually divided into Express Trusts and Implied Trusts, the latter comprehending all those trusts, which are called constructive and resulting trusts. Express trusts are those which are created by the direct and positive acts of the parties by some writing, or deed, or will. Not that in those cases, the language of the instrument need point out the nature, character, and limitations of the trust in direct terms, ipsissimis verbis ; for itis sufficient that the intention to create it can be fairly collected upon the face of the instrument from the terms used; and the trust can be drawn, as it were ex visceribus verborum. Implied trusts are those which are deducible from the nature of the transaction, as a matter of clear intention, although not found in the words of the par- ties; or which are superinduced upon the transaction by operation of law, as matter of equity, independent of the par- ticular intention of the parties(c). 760. The most usual cases of express trusts are found in preliminary sealed agreements, such as marriage articles, or articles for the purchase of lands; or in formal conveyances, (a) Story, s. 979. See 2 Fonbl. Eq. B. 2, ch. 7,8. 2, note¢; Moody v, Walters, 16 Ves. 302, 307. ; (0) Stubbs v. Sargon, 2 Keen, 255; Ommanney v, Butcher, T. & R. 260, 270, 271; See Wood v. Cox, 2M. & C. 684; 1 Keen, 317; Aston v. Wood, L. R, 6 Eq. 419; Lister v. Hodgson, L. P. 4 Eq. 30. (c) Story s. 980. TRUSTS. 325 such as marriage settlements, terms for years, mortgages, and other conveyances and assignments for the payment of debts, or for raising portions, or for other special purposes; or in last wills and testaments, in a variety of bequests and devises, in- volving fiduciary interests for private benefit or public charity. Many of these instruments, however, will also be found to contain implied, constructive, and resulting trusts(a). 761. The terms, implied trusts, trusts by operation of law, and constructive trusts, appear from the books to be almost synonymous, but the following distinctions may be mentioned : An implied trust is one declared by a party not directly, but only by implication ; as, where a testator devises an estate to A. and his heirs, not doubting that he will thereout pay an an- nuity to B. for life, in which case, A. is to the extent of the annuity, a trustee for B. Trusts by operation of law, are such as are not declared by a party at all, either directly or indirectly, but result from the effect of a rule of equity. They are either resulting trusts, as where an estate is devised to A. and his heirs, upon trust to sell and pay the tes- tator’s debts, in which case the surplus of the beneficial inter- est is a resulting trust in favour of the testator’s heir; or, constructive trusts, which the court elicits by a construction put upon certain acts of parties, as when a tenant for life of leaseholds renews the leases on his own account, in which case the law gives the benefit of the renewed lease to those who were interested in the old lease(0). ‘ 762. Though in general a trust created for an illegal pur- pose will not be enforced, it is otherwise where the illegal purpose has failed; as for example, where one conveyed pro- perty to a trustee to avoid creditors, and was afterwards declared bankrupt, and pursuant to terms of composition with creditors seeks to enforce the trust and recover the property (0). (a).Story, s. 981. (6) Lewin on Trusts, 86, note. (c) Symes v. Hughes, L. R. 9 Eq. 475. See Haigh v, Kaye, L. R. 7 Chan. 469, 1 326 EQUITY JURISPRUDENCE. CHAPTER XXV. CHARITIES. 763. THE term charity in its widest sense, denotes all the good affections men ought to bear towards each other ; in its most restricted and common sense, relief of the poor. In neither of these senses is it employed by a court of equity, for there its signification is derived chiefly from the Statute of Charitable Uses(a). Those purposes are considered charitable which that statute enumerates, or which are by analogy deemed within its spirit and intendment(6). 764. Gifts to the poor either generally(c), or of a particular locality(d), bequests to the poor of a workhouse or hospital(e), or emigrating to particular colonies(f), to the masters and gov- ernors of an hospital(g), or to the widows and children of sea- men belonging to a town(h), to “ poor relations, poor kinsmen and kinswomen(2),” have all been held to: come within the statute. So, also, gifts for the advancement and propagation of education and learning in any part of the world(j), or to build and erect a school or free grammar school(k), or to main- tain a schoolmaster(/), for the foundation of scholarship, fellow- (a) 43 Eliz. c. 4. (0) Morice v. Bishop of Durham, 9 Ves. 405. (c) Att.-Gen, v. Matthews, 2 Lev. 167. (d) Att.-Gen. v, Clarke, Amb. 422 ; Bristow v. Bristow, 5 Beav. 289; Att.-Gen. v. Bovill, 1 Ph. 762; Att.-Gen. Wilkinson, 1 Beav. 370; Re Lambeth Charities, 22 L. J. Ch. 959; Hereford v. Adams, 7 Ves. 324; Att.-Gen. v. Corporation of Exeter, 2 Russ. 47; 3 Russ. 396; Att -Gen. v. Brandreth, 1 Y. & C. 200; Att.-Gen. v. Blizard, 21 Beav. 233. . (e) Att.-Gen. v. Vint, 3D. & Sm. 704. (f) Barclay v. Maskelyne, 4 Jur. n. 8. 1294. (g) Mayor of London’s case, Duke, 83, 111. (h) Powell v. Att.-Gen. 3 Mer. 48. And see Att.-Gen. v. Comber, 2 8S. & 8. 93; Thompson v. Corby, 27 Beav. 649. : (i) Green v. Howard, 1 Bro. ©. C. 31: Brunsden v. Woolredge, Amb. 507 ; Mahon v. Savage, 1S.& L.111. And see White v, White, 7 Ves. 423; Isaac v. De Friez, 17 Ves. 373 n; Att.-Gen. v. Price, 17 Ves. 371. (j) Whicker v. Hume, 1 D. M. & G. 506; 7 H. L. 124. (k) Uase of Rugby School, Duke, 80, 112; Gibbons v, Maltyard, Duke 111; Poph. 6. And see Att.-Gen v. Earl of Lonsdale, 1 Sim. 109: () Hyheshaw v. Corporation of Morpeth, Duke, 69. CHARITIES. 327 ship, or lectureship in a college(a), have been held to be charitable within the intent of the statute(d). 765. With regard to cases not coming expressly within the terms, but which, by analogy, have been deemed within the spirit and intendment of the Statute of Elizabeth, may be mentioned: gifts for religious purposes, as for repairs, furni- ture or ornaments of a church(c), or to a minister for preach- ing(d), for a priest and his successors(e), for the augmentation of small livings(/), or for the advancement of Christianity among infidels(g), for the distribution of Bibles and other reli- gious books and tracts(h), for the increase and encouragement of good servants(z), for letting out land to the poor at a low rate(j), or for deserving literary men who have not been suc- cessful(k). 766. It is not material that the particular public or general purpose is not expressed in the Statute of Elizabeth, all other legal, public, or general purposes being within the equity of the statute. Thus, gifts to bring spring water for the inhabi- tants of a town(l), to build a sessions house or house of correc- tion(m), for the repair of highways(m), for a life-boat(o), for an (a) Rex ». Newman, 1 Lev. 284; Case of Jesus College, Duke, 78,111; Att.-Gen. v. The Margaret & Kegius Professors in Cambridge, 1 Vern. 55. (b) And see Att.-Gen. v. Tancred, 1 Eden, 10; Att.-Gen v, Whorwood, 1 Ves. 537; Porter’s case, 1 Co, 25 b. (c) Att.-Gen, ». Ruper, 2 P. W. 125; Att.-Gen. ». Vivian, 1 Russ. 226; Turner ». Ogden, 1 Cox, 316. As to what are religious purposes, see Cocks v, Manners, L. R. 12 Eq. 574, (d) Gibbons x. Maltyard, Poph. 6; Pember v. Inhabitants of Knighton, Poph. 132 ; Persted v, Payer, 1 Eq. Ca. Abr. 95, pl. 3. (e) Thornber v. Wilson, 3 Drew. 245. And see Att.-Gen. v. Parker, 1 Ves. Sen. 43; Att.-Gen. v. Newcombe, 14 Ves. 7; Pennington v. Buckley, 6 Hare, 453. (f) Att.-Gen. v. Brereton, 2 Ves. Sen. 426; Widmore v. Woodroffe, Amb. 636; Mid- dleton v. Clitherow, 3 Ves. 734. (g) Att.-Gen. v, City of London, 1 Ves. 243. (h) Att.-Gen. v. Stepney, 10 Ves. 22. And see Townsend v. Carus, 3 Hare, 257 Powerscourt v. Powerscourt, 1 Moll. 616; Thornton ». Howe, 8 Jur. N. 8. 663. (‘) Loscombe ». Wintringham, 13 Beav, 87. (3) Crafton v. Frith, 15 Jur. 737. (k) Thompson v. Thompson, 1 Coll. 395. (1) Jones v. Williams, Amb. 651. (m) Duke, 109, 136. (n) Eltham Parish v. Wareyn, Duke, 67 ; Collison’s case, Hob. 136. (0) Johnston v. Swann, 3 Mad. 457. ‘ 328 EQUITY JURISPRUDENCE. institution for studying and endeavouring to cure maladies of any quadrupeds or birds useful to man(q), for a botanical gar- den for the public benefit(5), or to charitable beneficial and public works, have been held to come within the meaning of the statute. 767. Devises or bequests for private charities(c), or to found a private museum(d), or to distribute rents and profits among certain families according to their circumstances(e), are not charitable within the meaning of the statute. Nor is a bequest for maintaining and keeping in repair family vaults and tombs (f). But when the vault is to be used for the interment of the family of the donor, the gift may be charitable(g). And gifts of an indefinite and general character, for the purposes of benevolence or general liberality, without the mention of specific objects, are not charitable(h). 768. Other bequests, apparently charitable, have been held void if contrary to the policy of the law. Thus, although the Statute of Elizabeth mentions “relief or redemption of prison- ers”? as a charitable purpose, a bequest to be applied in pur- chasing the discharge of persons committed to prison for non- payment of fines under the Game Laws, was held void as contrary to public policy(z). So, a bequest “towards the po- (a) The University of London v. Yarrow, 23 Beav. 159; 1D. & J. 72. (b) Townley v. Bedwell, 6 Ves. 194. And see The Trustees of the British Museum v. White, 28. & S. 594, (c) Ommanney v. Butcher, T. & R. 260; Kendall v, Granger, 5 Beav. 303. (d@) Thompson v. Shakespeare, Johns. 612; 1 D. F. & J.399; Carne v. Long, 4 Jur, N. 8. 474. (e) Lilly v. Hay, 1 Hare, 580. And see Att.-Gen. v. Haberdashers’ Co. 1 M. & K. 420. (f) Masters v. Masters, 1 P. W. 422, 423, But the authorities are not clear on this subject. See Mitford v. Reynolds,1 Ph. 185, 189; Mellick v. The President, &c., of the Asylum, Jac. 180 ; Adnam »v. Cole, 6 Beav. 353; Lloyd v. Lloyd, 2 Sim. n. 8, 255; Willis v. Brown, 2 Jur. 987; Rickard v. Robson, 8 Jur. nN. s. 665. (g) Gravenor v. Hallum, Amb. 653; Doe d. Thompson v. Pilcher, 3 Mau. & Sel. 407; 6 Taunt. 359. (h) Morice v. Bishop of Durham, 9 Ves. 399; Ommanney v. Butcher, T. & R. 260; James v. Allen, 3 Mer. 17; Ellis v. Selby, 1 M. & C. 286; Kendall v, Granger, 5 Beav. 300 ; Nash v, Morley, 5 Beav. 177 ; Vezey v. Jamson, 18. & 8. 69. (i) Thrupp v. Collett, 26 Beav. 125, CHARITIES. 829 litical restoration of the Jews to Jerusalem and to their own land,” was held void(a). 769. A charitable use must be carefully distinguished from what is termed a superstitious use. The latter has been de- fined “one which has for its object the propagation of the rites of a religion not tolerated by the law(b).” Formerly, gifts for the maintenance of Roman Catholic Monasteries, for masses for a person’s soul, for maintaining a Roman Catholic priest, and many other similar purposes, were void(c). So were gifts in favour of the places of worship, ministers, or schools of Protestant Dissenters(d). And also, a bequest for the mainte- nance of an assembly for reading the Jewish law(e). The law in England is now, however, altered, and in this Province there is no doubt, such gifts would be held valid. By our law all bodies of Christians enjoy equal toleration(/). Thus, a bequest “for masses to be offered for the repose of the testa- tor’s soul” has been held free from any taint of illegality(q). 770. Where a gift made to charitable purposes is void as being superstitious, it becomes the duty of the Crown to ap- propriate it to valid charitable objects(h). But if a bequest, . being void as superstitious, has no charitable object, the Crown cannot apply it for charitable purposes, but it will go to the residuary legatees, or in case of intestacy to the next of kin(i). (a) Habershon v. Vardon, 4 D. & Sm. 467. (6) Boyle, 242. (c) DeGarcin v. Lawson, 4 Ves. 433n; Gates v. Jones, vit, 2 Vern. 266; Smart v. Prujean, 6 Ves. 560°; West v. Shuttleworth, 2 M, & K. 684; Att.-Gen, v. The Fish- mongers Co. 2 Beav. 151; 5 M. & C. 11; Att.-Gen. v. Power,1 B. & B. 145; Cary w Abbot. 7 Ves. 490; Att.-Gen. v. Todd, 1 Keen, 803; De Themmines v, De Bon- neval, 5 Russ. 288. (@) Att.-Gen. v. Baxter, 1 Vern. 248, 1 Eq. Ca. Ab. 96, pl. 9. (e) De Costa v. DePas, 1 Amb, 228. And see Isaac v. Gompertez, 1 Ves. 44. (f Per V. C. Strong in Elmsley v. Madden, 18 Gr. 389, where it is suggested that perhaps the Roman Catholic Church enjoys peculiar rights. and privileges under the capitulation of Quebec and Montreal, the Treaty of Paris and the Quebec Act, 14 Geo. 3, ¢. 83, (g) Elmsley v. Madden, 18 Gr. 389. (h) Cary », Abbot, 7 Ves. 490 ; see De Costav De Pas, Amb. 228 ; De Garcin v. Law- son, 4 Ves. 433 n. (:) West v. Shuttleworth, 2 M. & K. 684. And see Heath v. Chapman, 2 Drew. 417, 330 EQUITY JURISPRUDENCE. 771. The statute of mortmain, 9th Geo. II. ch. 36, very ma- terially narrowed the extent and operation of the statute of Elizabeth ; and has formed a permanent barrier against what the statute declares to be a “ public mischief,” which “has of late greatly increased, by many large and improvident aliena- tions or dispositions, made by languishing and dying persons, or others, to uses called charitable uses, to take place after their deaths, to the disherision of their lawful heirs.” 772. Since the passing of that Act, all devises to charitable purposes made by wills, whether of freeholds or leaseholds, or of the rents and profits of, or of crops growing on, lands, are void(a). Any personalty savouring of realty has been held to come within the meaning of the Act. Thus, a legacy of money to arise from the sale of land, is void(b). And it is void even although the conversion may have been directed by a former instrument(c). Although a devise of rents of realty is clearly within the. Act, arrears of rent are not(d). But a bequest of arrears of interest on a mortgage has been held within the Act, for the land might be sold to pay them(e). 773. A bequest to a charity, of money to be laid out in the purchase of land, is void, even although the trustees have power to invest upon personal securities until a suitable purchase can be made(/). And a recommendation to trustees to pur- (a) Arnold v. Chapman, 1 Ves. Sen. 108; Att.-Gen. 7. Tomkins, Amb. 216 ; Thornber v. Wilson, 3 Drew. 245; Cramp v. Playfoot, 4K. & J. 479; Symonds v. Marine So- ciety, 2 Giff. 325 ; Lewis v. Paterson, 13 Gr. 223; Anderson v. Kilborn, 13 Gr. 219. But see Anderson v. Dougall, 18 Gr. 164. (0) Curtis v, Hutton, 14 Ves. 537; Page v. Leapingwell, 18 Ves. 463; Trustees of the British Museum v. White, 2S. & S. 595; Att.-Gen. v. Lord Weymouth, Amb. 20; Paice v. Archbishop of Canterbury, 14 Ves. 364; Att.-Gen. v. Harley, 5 Mad. 321 ; Waite v. Webb, 6 Mad. 71; Thornber v7 Wilson, 3 Drew. 245; 4 Drew. 350; The In- corporated Church Building Society v. Coles, 5D. M. & G. 331; Robinson v. Robin- son, 19 Beav. 494. (ce) Middleton v. Spicer, 1 Bro. C. C. 201; Att.-Gen. v. Harley, 5 Mad. 321; Aspi- nall v. Bourne, 29 Beav. 462. But see Shadbolt v. Thornton, 17 Sim. 49; 13 Jur, 597 ; Marsh », Att.-Gen. 7 Jur. N. 8. 184, (2) Edwards v. Hall,11 Hare. 6; 6D. M. & G. 74, (e) Alexander v. Brame, 7 Jur. nN. 8. 889. And a bequest of debts secured by an equitable mortgage of leaseholds has been held void, Chester v. Chester, L. R. 12 Eq. 444; and see Harbin v. Masterman, L, R. 12 Hq. 559, (f) Att.-Gen. v. Heartwell, 2 Ed. 234; Grieves v. Case, 4 Bro. C. C. 67; Pritchard v, Arbouin, 3 Russ. 457 ; Mann ». Burlingham, 1 Keen 235. And see Dunn v. Bownas, 1K. & J. 601, CHARITIES. 831 chase has been held to be mandatory, and therefore void(a).. Where a testator bequeaths money to be laid out in erecting or building a school, or other charitable institution, it will be implied that he intended a purchase of land to be made for- that purpose, and the gift will consequently be void(b), unless he distinctly points to some land which is already in mortmain, or expressly exclude the application of the money for the pur-- chase of land(c). 774. A bequest of money for the erection(d) or repairs and improvement(e) of buildings upon land already in mortmain is valid. A bequest, however, for paying off an incumbrance- on real estate belonging to a charity is invalid(/), though the incumbrance be merely equitable(g). But a bequest for pay- ing off debts contracted in respect of a meeting-house, but which do not constitute a charge upon it, is valid(h). 775. Charities are so highly favoured in the law, that they’ have always received a more liberal construction than the law will allow in gifts to individuals(z). Thus, if a testator gives. his property to such person as he shall hereafter name to be his executor, and afterwards he appoints no executor ; or if an estate is devised to such person as the executor shall name,, and no executor is appointed; or, if an executor being ap- pointed, he dies in the testator’s lifetime, and no other is. (a) Att.-Gen. v. Davies, 9 Ves. 546; Kirkbank v, Hudson, 7 Price 212; Pilkington v. Boughey, 12 Sim. 114. ®) Foy v. Foy, 1 Cox 163; Att.-Gen. v. Nash, 3 Bro. C. C. 588; Att.-Gen. v. Whit-- church, 3 Ves. 144; Chapman v. Brown, 6 Ves. 404; Att.-Gen. v. Parsons, & Ves. 186;. Att.-Gen. v. Davies, 9 Ves, 535; Smith v. Oliver, 11 Beav. 481; Att.-Gen. v. Hodg- son, 15 Sim. 146. But see Att.-Gen. v. Philpott, 6 H. L. 338, reversing 8. C. 21 Beav. 134, and overruling Trye v. Corporation of Gloucester, 14 Beav. 173. And see Cawood. v. Thompson, 1 Sm. & Giff. 409; Baldwin v, Baldwin, 22 Beav. 413. (c) Pritchard v. Arbouin, 3 Hise: 457; Re Watmough’s Trust, L. R. 8 Eq. 972 5. Pratt v. Harvey, L. R. 12 Eq. 544; Hawkins v. Allen, L. R. 10 Eq. 246. (d) Brodie v. Duke of Chandos, 1 Bro. C. U. 444n,; Att.-Gen. v. Bishop of Oxford,- 1 Bro. C. C. 444; Glubb v. Att.-Gen., Amb. 373; Att.-Gen. v. Parsons, 8 Ves. 186 ;. Att.-Gen, v. Munby, J Mer. 327; Fisher v. Brierly, 1 D. F. & J. 648. (e) Harris v. Barnes, Amb. 652; Att.~Gen.. Bishop of Chester, 1 Bro. C. C. 444. (f) Corbyn v. French, 4 Ves, 418. (gy) Waterhouse v. Holmes, 2 Sim. 162, And see Davies v. Hopkins, 2 Beav. 276. (A) Bunting v. Marriott, 19 Beav. 163. (i) 2 Roper on legacies, by White, ch. 19, s. 5, p. 164 to 222. 332 EQUITY JURISPRUDENCE. appointed in his place, in all these cases if the bequest be in favour of a charity, the Court of Chancery will assume the office of an executor, and carry into effect the bequest, which in the case of individuals must have failed altogether(q). 776. Again, if the testator has expressed an absolute inten- tion to give a legacy to charitable purposes, but he has left uncertain, or to some future act, the mode by which it is to be carried into effect, then, the Court of Chancery, if no mode is pointed out, will of itself supply the defect, and enforce the charity (0). 777. Where the literal execution of the trusts of a charitable ‘gift becomes inexpedient or impracticable, the court will exe- -cute them as nearly asit can, according to the original purpose, or (as the technical expression is) cy pres(c). The general ‘principle upon which the court acts is, that if the testator has manifested a general intention to give to a charity, the failure of the particular mode in which the charity is to be effectu- -ated, shall not destroy the charity; but if the substantial intention is charity, the law will substitute another mode of devoting the property to charitable purposes, though the for- mal intention as to the mode cannot be accomplished(d). Thus, where there was a bequest of the residue of the testator’s es- tate to a company, to apply the interest of a moiety “ unto the redemption of British slaves in Turkey or Barbary,” one-fourth to charity schools in London and its suburbs, aud one-fourth ‘towards necessitous freemen of the company; there being no -British slaves in Turkey or Barbary to redeem, the court di- ‘rected a new scheme to be framed cy pres ; and approved of a 4 (a) Mills v, Farmer, 1 Mer. 55, 96 ; Moggridge v. Thackwell, 7 Ves. 36. (b) Mills v. Farmer, 1 Mer. 55, 95; Moggridge v. Thackwell, 7 Ves. 36 ; White v. White, 1 Bro. C,C. 12, And see Att.-Gen. v. Syderfen, 1 Vern. 224; 8. co. 2 Freem. -261, : (c) Att.-Gen. v. Oglander, 3 Bro. C. C. 165 ; Att.-Gen. v. Green, 2 Bro. C. C, 492; -Frier v. Peacock, Rep. t. Finch, 245; Att.-Gen. v. Boultbee, 2 Ves. 380; Att.-Gen. ». “Wansay, 15 Ves. 232. (d) Per Lord Eldon, Moggridge v. Thackwell, 7 Ves. 69, CHARITIES. 333 scheme which gave the moiety thus undisposed of, to the donees of the other fourth parts(a). 778. The doctrine of ey pres is applicable only where the testator has manifested in his will a general intention of charity, and therefore, is not applicable when such general intention is not to be found. Thus, where a testator shews an intention of giving to some particular institution, and such in- tention cannot be carried out, and there is no intention in favour of charity generally, the bequest will fail, and the next of kin will take(0). 779. In further aid of charities, the court will supply all defects of conveyances, where the donor has a capacity, and a disposable estate, and his mode of donation does not con- travene the provisions of any statute(c). 780. Lapse of time has been held in equity no bar in the case of charitable trusts, as it would in cases of mere private trusts. Thus, in the case of a charitable trust, where a corpo- ration had purchased with notice of the trust, and had held the property under an adverse title for one hundred and fifty years, it was decided that the corporation should reconvey the property upon the original trusts(d). 781. There is, however, one exception to the general rule that equity favours charities. Assets will not be marshalled by a court of equity in favour of acharity. Thus ifa testator (a) Att.-Gen, v, The Ironmongers’ Company, 2 Beav. 313; Att.-Gen. v. Bishop of Llandaff, cit. 2M. & K+ 586. And see Att.-Gen, v. Oglander, 3 Bro. C, C. 165; Att.- Gen, v. City of London, 3 Bro. C.C. 171. (6) Att.-Gen. v. Bishop of Oxford, cit, 4 Ves. 431; Att.-Gen. v. Goulding, 2 Bro. C. C. 428; Cherry v. Mott, 1M. & C. 123; Smith v. Oliver, 11 Beav. 481; Loscombe v. Wintringham. 13 Beav. 87; Clarke v. Taylor, 1 Drew. 642; Russell v. Kellett, 3 Sm. & Giff. 264; Sinnett v. Herbert, L. R. 12 Eq. 201. (c) Case of Christ College, 1 W. Bl. 90; Att.-Gen. v. Rye, 2 Vern. 453 ; Rivett’s case, Moore, 890; Att.-Gen. v. Burdett, 2 Vern. 755 ; Att.-Gen, v. Bowyer, 3 Ves. 714 ; Damer’s case, Moore, 882 ; Collison’s case, Hob. 136 ; Mills v. Farmer, 1 Mer. 55 ; In- corporated Society v. Richards, 1 Dr. & War. 308 ; Sayer v. Sayer, 7 Hare, 377 ; Innes v. Sayer, 3 Mac. & G. 606. (d) Att.-Gen. v. Christ’s Hospital, 3M. & K. 344; Att.-Gen. v. Corp. of Beverley,. 6D. M. & G. 268, Story, ». 1192. 334 EQUITY JURISPRUDENCE. give his real estate, and personal estate (consisting of person- alty savouring of realty, as leasehold and mortgage securities, and also pure personalty), to trustees, upon trust to sell, and pay his debts and legacies, and bequeath the residue to a charity, equity will not marshal the assets by throwing the debtsand ordinary legacies upon the proceeds of the real estate, and the personalty savouring of realty, in order to leave the pure personalty for the charity(a). The rule of the court in all such cases is to appropriate the fund, as if no legal objection existed, as to applying any part of it to the charity legacies ; then holding so much of the charity legacies to fail as would in that way be payable out of the prohibited fund(}). 782. As to resulting trusts in gifts to charities, the following rules have been adopted by the court. (1) Where a person makes a valid gift, whether by deed or will, and expresses a general intention of charity, but either particularises no ob- jects(c), or such as do not exhaust the proceeds(d), thecourt will not suffer the property in the first case, or the surplus in the second, to result to the settlor or his representative, but will take upon itself to execute the general intention, by declaring the particular purpeses to which the fund shall be applied. (2) Where a person settles lands, or the rents and profits of lands to purposes which at the time exhaust the whole pyro- ceeds, but, in consequence of an increase in the value of the estate, an excess of income subsequently arises, the court will order the surplus instead of resulting, to be applied in he same or a similar manner with the original amount(e). (3) But even in the case of charity, if the settlor do not give the (a) Mogg v. Hodges.2 Ves. Sen. 52; Fourdrin v. Gowdey, 3 M. & K. 397; Johnson v. Woods, 2 Beav. 409 ; Waite v. Webb, 6 Madd. 71. (6) Per Lord Cottenham in Williams v. Kershaw, 1 Keen. 274n. And see Robinson v. Governors of the London Hospital, 10 Hare, 19; Johnson v. Lord Harrowby, Johns. e Att.-Gen. v. Herrick, Amb, 712. (d) Att-Gen. v. Haberdasher’s Co, 4 Bro. C. C. 102; Att.-Gen. v. Minshull, 4 Ves. 11; Att.-Gen. v. Arnold, Shower’s P. C, 22. And see Att.-Gen. v. Sparks, Amb. 201 ; Att.- Gen. v. Mayor of Bristol, 2 J. & W. 316. (e) Thetford school case, 8 Rep. 1306; Att.-Gen. v. Beverley, 6 H. L. 310 ; Att. Gen. v. Caius College, 2 Keen. 150; Att.-Gen. v. Jesus College, 29 Beav. 163; Mer- hant Taylor’s Co. v. Att.-Gen. L. R. 11 Eq. 35; L. R. 6 Chan. 512. MARRIAGE SETTLEMENTS. 335 land, or the whole rents of the land, but, noticing the property to be of a certain value, appropriates part only to the charity, the residue will then, according to the circumstances of the case, either result to the heir at law(a), or belong to the donee of the property subject to the charge, ifthe latter be (as inthe _ case of a charitable corporation) itself an object of charity(b). CHAPTER XXVI. MARRIAGE SETTLEMENTS. 783. Where an instrument, designed as a MARRIAGE SET- TLEMENT, is final in its character, and the nature and extent of the trust estates created thereby are clearly ascertained and accurately defined, so that nothing further remains to be done according to the intention of the parties, the trusts are treated as executed trusts, and courts of equity construe them in the same way as legal estates of the like nature would be con- strued at law upon the same language(c). Thus, if the lan- guage of the instrument would give a fee tail to the parents in a legal estate, they will be held entitled to a fee tail in the trust estate(d). 784. Where no marriage settlement has actually been exe- cuted, but only articles for a settlement, courts of equity, when called upon to execute them, indulge in a wider latitude of interpretation, and construe the words most beneficially for (a) See Att.-Gen. v. Mayor of Bristol, 2J, & W. 308. (0) Att.-Gen. v. Beverley, 6 H. L. 310; Att.-Gen, v. Southmolton, 5 H.L. 1; Att.- Gen. v. Trinity College, 24 Beav. 383 ; Att.-Gen. v. Dean of Windsor, 24 Beav. 679 ; affirmed, 8 H. L. 369. (c) Synge v. Hales, 2B. & B. 507; Jervoise » Duke of Northumberland, 1 J. & W. 559, 571; Wright v. Pearson, 1 Ed. 119; Jones v. Morgan, 1 Bro. C. C. 206. See also Boswell v, Dillon, 1 Dru. 291. or various cases decided on marriage settlements and their construction, see Place v. Spawn, 7 Gr. 406; Ridout v. Gwynne, 7 Gr. 505; Tripp v. Martin, 9 Gr. 20; Ryland v. Alnutt, 11 Gr. 135. (d) See Cooper v. Kynock, L. R, 7 Chan. 398. 836 EQUITY JURISPRUDENCE. the issue of the marriage(a). Thus, if the terms of the articles would, if construed with legal strictness, give the parents an estate tail, and so enable them to defeat the provision for their issue, the court will decree a settlement to the parents for life only, with remainder to the issue in tail as purchasers(b) ; and if the articles are applicable to daughters, the like limitations will be made to them also(c). 785. In cases of executory trusts arising under wills, a simi- lar favorable construction will be made in favor of the issue in carrying them into effect, if the court can clearly see from the terms of the will that the intention of the testator is to protect the interests of the issue in the same way(d). 786. A distinction is, however, recognized in equity be- tween executory trusts under marriage articles, and those under wills. In the former, the intention of the parties may fairly be presumed a priori, from the nature of the transaction ; in the latter, it must be gathered from the words of the will alone. When the object is to make a provision, by the settle- ment of an estate for the issue of a marriage, it is not to be presumed that the parties meant to put it in the power of the father to defeat that purpose, and appropriate the estate to (a) Young v. Smith, L. R. 1 Eq. 180; Re Mainwaring’s Settlement, L. R. 2 Eq. 487 5 Carter v. Carter, L. R. 8 Eq. 551. And see Campbell v. Bainbridge, L. R. 6 Eq. 269; Dering v. Kynaston, L. R. 6 Eq. 210; Re Browne’s Will. L. R. 7 Eq. 2315 Dickinson v. Dillwyn, L. R. 8 Ey. 546; Re Pedder’s Settlement, L. R. 10 Eq. 585; Bower v. Smith, L. R. 11 Eq.279; Re Clinton’s Trust, L. R. 13 Eq. 295; Re Bel- lasis’ Trust, L. R. 12 Eq. 218; Re Brookman’s Trust, L. R. 5 Chan. 182. (b) Trevor v. Trevor, 1 P. W. 622; 5 Bro. P. C.122; Griffith v. Buckle, 2 Vern. 13; Stonor v. Curwen, 5 Sim. 268; Davies v. Davies, 4 Beav. 54; Lambert v. Peyton, 8H. L.1. (c) Nandick v. Wilkes, 1 Eq. Ca. Abr. 393; Hart v. Middlehurst, 3 Atk. 371; Bur- naby v. Griffin, 3 Ves. 266; Horne v. Barton, 19 Ves. 398; Phillips v, James, 13 W. R. 543, 934; Shelton v. Watson, 16 saa 543 ; Coape v. Avisld, 2 Sm. & Giff. 311; 4D.M. & G. 574, (d) Story, s, 983; Teonard v. Earl of Shaied 2 Vern, 526; Papillon ». Voice, 2 P. W. 478; Glenorchy v, Bosville, Cas. t. Talb. 3; Countess of Lincoln v. Duke of, New- castle, 12 Ves. 227, 230; Green v. Stephens, 17 Ves. 75, 76; Carter v. White, Ambl. 670 ; Sydney v. Shelley, 19 Ves. 366; Stonor v. Curwen, 5 Sim. 264; Thompson v. Fisher, L. R. 10 Eq. 207 ; Magrath v, Morehead, L. R. 12 Eq. 491. And see Lochz. Bagley, L. R. 4 Eq, 122; Stanley v. Coulthurst, L. R. 10 Eq. 259; Grier . Grier, L. R. 5 H. L. 688; Turner v. Sergeant, 17 Beav. 515; Stanley v. Jackman, 23 Beav. 450. MARRIAGE SETTLEMENTS. 337 himself. If, therefore, the agreement is to limit an estate for life, with remainder to the heirs of the body, the court will decree a strict settlement, in conformity to the presumed in- tention of the parties. 787. If the like words occur in execntory trusts created by a will, there is no ground for the court decreeing a strict settlement, unless other words occur explanatory of the in- tent. The subject being a mere bounty, the intended extent of the bounty can be known only from the words in which it _ is conferred ; but if it is to be clearly ascertained from any thing in the will, that the testator did not mean to use the expressions which he has employed, in their strict, proper, technical sense, the court, in decreeing such a settlement as he has directed, will depart from his words in order to execute his intention(a). 788. In furtherance of the same beneficial purpose in favor of issue, courts of equity will construe an instrument which might, under one aspect, be treated as susceptible of a com- plete operation at law, to contain merely executory marriage articles, if such an intent is apparent on the face of it; for this construction may be most important to the rights and inter- ests of the issue(b). And an instrument, as to one part of the property comprised in it, may be taken as a final legal settle- ment; and as to another part as mere articles(c). 789. There is also a distinction in courts of equity as to the parties in whose favour the provisions of marriage articles will be specifically executed or not(d). The parties seeking a specific execution of such articles may be those who are strictly within the reach and influence of the consideration of the (a) Blackburn v. Stables, 2 V. & B. 370; Jervoise v. Duke of Northumberland, 1 J. & W. 559, 571, 574; Lord Deerhurst v. Duke of St. Albans, 5 Mad. 260; Synge v. Hales, 2 B. & B. 507. See Sackville—West v. Holmesdale, L. R. 4 H. L. 543 ; Maguire v. Soulby, 2 Hog. 113; Stratford v. Powell, 1 B. & B. 25. (6) Trevor v. Trevor, 1 P. W. 622; White v. Thornborough, 2 Vern. 702. (c) Story, s. 985; and see Re De La Touche’s Settlement, L. R. 10 Eq. 599; Countess of Lincoln v. Duke of Newcastle, 12 Ves. 218; Vaughan». Burslem, 3 Bro. C. C. 101, 106. (d) See Jeston a L. R. 6 Chan. 610. 838 EQUITY JURISPRUDENCE. marriage, or claiming through them; such as the wife and issue, and those claiming under them; or they may be mere volunteers, for whom the settlor is under no natural or moral obligation to provide, and yet who are included within the scope of the provisions in the marriage articles; such as his distant heirs or relatives, or mere strangers. The distinction is, that marriage articles will be specifically executed upon the application of any person within the scope of the consideration of the marriage, or claiming under such person; but not gener- ally upon the application of mere volunteers(a). 790. Where the bill is brought by persons who are within the scope of the marriage consideration, or claiming under them, courts of equity will decree a specific execution through- out, as well in favour of the mere volunteers, as of the plain- tiffs in the suit. So that, indirecly, mere volunteers may obtain the full benefit of the articles, in the cases where they could not directly insist upon such rights. The ground of this peculiarity is, that, when courts of equity execute such arti- cles at all, they execute them in toto, and not partially(6). 791. But where the parent, or his agent, or the friends of the woman, hold out considerations of a pecuniary nature to in- duce the marriage and a settlement upon the lady, in faith of which the marriage and settlement take place, a court of equity will compel the party holding out such inducements. to make them good(c). 792. A post nuptial settlement made in pursuance of a prior valid written agreement is valid against creditors, but a parol (a) Wollaston v. Tribe, L. R. 9 Eq, 44; West». Errissey, 2P. W. 349; Kettleby v, Atwood, 1 Vern. 298, 471; Stephens v. Trueman, 1 Ves. Sen. 73; Pulvertoft v Pulvertoft, 18 Ves. 84; Holloway v. Headington, 8 Sim. 325; Jefferys v. Jefferys, Cr. & Ph. 138,141. (6) Story, s. 986 ; Osgood v. Strode, 2 P. W. 255, 256 ; Trevor v. Trevor, 1 P. Ww. 622; Goring v. Nash, 3 Atk. 186, 190 ; Davies v. Davies, L. R. 9 Eq. 468. And see McGre- gor v. Rapelje, 17 Gr. 38 ; 18 Gr 446. (c) Hammersley v. Baron De Biel, 12 Cl. & Fin. 45; Coverdale v. Eastwood, L. R. 15 Eq. 121 ; Payne v. Mortimer, 1 Giff, 118; 4D. & J. 447; Alt wv. Alt, 4 Giff. 84; Walford v», Gray, 13 W. R. 335; 761. And see Maunselv. White, 1 J. & L. 567; Lester v. Heath, 27 Beay. 523; 1 D. F.& J. 489; Kay v. Crook, 3 Sm. & G. 407; Jameson v, Stein, 21 Beav. 5. MARRIAGE SETTLEMENTS. 339 ante-nuptial agreement does not prevent a post nuptial settle- ment from being voluntary(a). Nor will the written recogni. tion after marriage of a verbal promise made before mar- riage, support a post nuptial settlement against creditors(b). Post nuptial settlements are, as a general rule, voluntary deeds, and therefore void as against creditors(c). And the fact that such a settlement may be founded on a moral duty, will not deprive it of its voluntary character(d). But in cer- tain cases, a post nuptial settlement, if made in pursuance of a duty which a court of equity would enforce, is not to be treated as wholly voluntary(e). 793. The consideration of marriage, although the most valu- able of all considerations, if there be bona fides(f), will not support a settlement by a man in insolvent or embarrassed circumstances, if there be evidence to shew that the intended wife was implicated in any design to delay or defraud the creditors of the intended husband, or that the marriage was part of a scheme or contrivance between them to protect his property against the claims of his creditors(g).~ 794. Where the rectification of a marriage settlement was sought on the ground of mistake, the doctrine in the older cases was that where the articles and settlement were both before marriage, the court would not interfere, unless the set- tlement was expressed to be made in pursuance of the articles, for, without such a recital, the court supposed that the parties had altered their intentions as regarded the terms of the con- (a2) Spurgeon v, Collier, 1 Ed. 61; Randall vy. Morgan, 12 Ves. 67; Lassence v, Tierney, 1 Mac, & G. 551 ; Hx parte McBurnie, 1D. M. & G. 445; Wardenv. Jones, 2D. & J. 76; Goldicutt v. Townsend, 28 Beav. 445. (0) Randall v. Morgan, 12 Ves. 67; Warden v. Jones, 2D. & J. 76. (c) Sug. V. & P. 715. But see Holmes». Penny, 3 K. & J. 90. (d) Holloway v. Headington, 8 Sim. 324; Jefferys v. Jefferys, Cr. & Ph. 138, 141. (e) Jones » Marsh, Ca. t. Talbot, 64; Wheeler v. Caryl, Amb. 121; Jewson ». Moulson, 2 Atk. 417 ; Middlecombe v. Marlow, 2 Atk. 519; Arundell v. Phipps, 10 Ves. 139; Ward v. Shallett, 2 Ves. Sen. 16. (f) Campion v. Colton, 17 Ves. 264; Ex parte McBurnie, 1 D. M. & G. 441; Dilkes v. Broadmead, 2D. F. & J. 566, And see Commercial Bank v. Cooke, 9 Gr. 524; Jackson v. Bowman, 14 Gr. 156. (9) Colombine v. Penhall, 1 Sm. & G. 228; Fraser v. Thompson, 4D. & J. 659. And see Re Mc Burnie, 1 D. M. & G. 445 ; Buckland v. Rose, 7 Gr. 440. 340 EQUITY JURISPRUDENCE. tract(a). The later authorities, however, dispense with the necessity of a reference to previous articles in the settlement (b). Where a settlement purposes to be in pursuance of arti- cles entered into before marriage, and there is any variance, then no evidence is necessary to have the settlement corrected ; and although the settlement contains no reference to the arti- cles, yet if it can be shown that the settlement was intended to be in conformity with the articles, and there is clear and satisfactory evidence, showing that the discrepancy had arisen trom a mistake, the court will enforce the settlement, and make it conformable to the real intention of the parties(c). 795. Estates pour autre vie may, at law, be devised or limited in strict settlement by way of remainder, like estates of inherit- ance; and the remainder-man will take as special occupant(d). But those who have an interest therein in the nature of estates tail, may bar their issue, and all remainders over, by the alie- nation of the estate pour autre vie, as those who are, strictly speaking, tenants in tail of legal estates, may(e). 796. The manner of settling estates in terms of years and personal chattels is different, for in them no remainder can at law be limited. But they may be entailed at law by an executory devise, or by a deed of trust in equity, as effectually (a) See Legg ». Goldwire, Ca. t. Talb, 20. And also Honor » Honor, 1 P. W. 123 ; Roberts v. Kingsley, 1 Ves. Sen. 238; Warwick v. Warwick, 3 Atk. 293. (6) Bold v. Hutchinson, 5 D. M. & G. 566. (c) Bold v. Hutchinson, 5 D. M. & G. 566. But see Mignan v. Parry, 31 Beayv. 211. As to cases where the court has rectified settlements, see Hamil v. White, 3 J. & L. 695. Wilson v, Wilson, 15 Sim. 487; 1 H. L. 538 ; Waish ». Trevannion, 16 Sim. 178; Murray v. Parker, 19 Beav. 305 ; Re Morse’s Settlement, 21 Beav. 174; Torre v. Torre, 1 Sm. & G. 518; Walker v, Armstrong, 21 Beav. 284; Naylor v. Wright, 5 W. R. 770 ; Wolterbeek v. Barron, 23 Beav. 423; Tomlinson v. Leigh, 14 W.R. 121; Earl of Malmesbury v. Earl of Malmesbury, 31 Beav. 407. Where it has refused to do so, see Howkins v. Jackson, 2 Mac. & G. 372; White v. Ander- son, 1 Ir: Ch. 419; Brougham v. Squire, 1 Drew. 151; Lloyd v. Cocker, 19 Beav. 140 ; Fyfe v. Arbuthnot, 1D. & J. 406 ; Elwes v. Elwes, 2 Giff. 545; 9 W. R. 820; Sells v. Sells, 1 Dr. & Sm. 42; Fowler v. Fowler, 4 D. & J. 250; Jenner v. Jen- ner, 6 Jur. N. 8. 668, (d) Low v. Burron, 3 P. W. 262, and notes ; Doe d. Blake v. Luxton, 6 T. R. 291, 292; Finch v. Tucker, 2 Vern. 184; Baker v. Bayley, 2 Vern. 225. (e) Story, s. 989; Co. Litt, 20a, note (5); Wastneys v. Chappell, 1 Bro. P. C. 475; Norton ». Frecker, 1 Atk. 525; Low v. Burron, 3 P. W. 262; Grey v. Mannock, 2 Ed. 339; Blake v. Luxton, Cooper, t. Eld. 178, 184; Forster v. Forster, 2 Atk. 260. TERMS FOR YEARS. 341 as estates of inheritance, and with the same limitations as to perpetuity(a). However, the vesting of an interest in a term for years or in chattels in any person, equivalent to a tenancy in tail, confers upon him the absolute property in such term or chattels, and bars the issue, and all subsequent limitations (b). If, im the case of a term of years, or of chattels, the limi- tations over are too remote, the whole property vests in the first taker(c). 797. Marriage settlements for the benefit of the children of the marriage, after the decease of the wife, their shares to be vested at twenty-one or marriage, with a proviso that until the principal should become payable to the children, the trus- tees should apply the whole of the income, or so much of it as they should think fit, for the education and maintenance of the children, are construed as giving a discretionary trust to the trustees, and not a mere power, and the father has been held entitled to an allowance for the past and future mainte- nance of his child, without regard to his ability to maintain it(d). CHAPTER XXVII, TERMS FOR YEARS. 798, THE creation of long TERMS FOR YEARS, for the pur- pose of securing money lent on mortgage of the land, took its rise from the inconveniences of the ancient way of making mortgages in fee by way of feoffment and other solemn con- veyances, with a condition of defeasance. For, by such mode, (a) 1 Fonbl. Eq. B. 1, ch. 4, 8.2, and note (f); 2 Fonbl. Eq. B. 2, ch. 4, 8. 2 note (@); Wright v. Cartwright, 1 Burr. 282. (b) Co. Litt. 18 6, Hargrave’snote (7); Co. Litt. 20a, Hargrave’s note (5); Matthew Manning’s case, 8 Co. 94, 95; Lampet’s case, 10 Co. 47 ; 1 Mad. Pr. Ch, 367 ; Good- right v. Parker, 1M. & Selw. 692. fc) Co. Litt. 20 a, Harg. note (5); 1 Co. 66. (d) Ransome v. Burgess, L. R. 3 Eq. 773. And see Fussell ». Dowding, L. R. 14 Eq. 421, 842 EQUITY JURISPRUDENCE. if the condition was not punctually performed, the estate of the mortgagee at law became absolute. Hence it became, usual to create long terms of years upon the like condition ; because, among other reasons, such terms on the death of the mortgagee became vested in his personal representatives, who were also entitled to the debt, and could properly dis. charge it(a). Terms for years were also often created for securing the payment of jointures and portions for children, and for other special trusts. 799. Such terms did not determine upon the mere perform- ance of the trusts for which they were created, unless there was a special proviso to that effect in the deed. The legal interest continued in the trustee after the trusts were per- formed ; although the owner of the fee was entitled to the equitable and beneficial interests therein. 800. At law the possession of the lessee for years is deemed to be the possession of the owner of the freehold. And, by analogy, courts of equity hold that where the tenant for the term of years is but a trustee for the owner of the inheritance he shall not oust his cestui que trust, or obstruct him in any act of ownership, or in making any assurances of his estate. In these respects, therefore, the term is consolidated with the in- heritance. It follows the descent to the heir, and all the alie- nations made of the inheritance, or of any particular estate or interest carved out of it by deed, or by will, or by act of law (b). In short, a term, attendant upon the inheritance by ex- press declaration, or by implication of law, may be said to be governed in equity by the same rules, generally, to which the inheritance is subject(c). 801. Although the trust or benefit of the term is annexed to the inheritance, the legal interest of the term remains distinct (a) Co. Litt. 290 0, Butler’s note (D, s. 13; 208 a, note (1); Bac. Abridg. Mortgage, A. 1035. (b) Co. Litt. 2906, Butler’s note (1), s. 13; Whitchurch v. Whitchurch, 2 P. W. 236; Charlton v. Low, 3 P. W. 330; Villers v. Villers, 2 Atk. 72; Willoughby v. Willough- by, 1 T. R. 765, (c) Story, s. 998. TERMS FOR YEARS. 843 and separate from it at law, and the whole benefit and advan- tage to be made of the term arises from this separation. For, if two or more persons have claims upon the inheritance under different titles, a term of years attendant upon it is still so dis- tinct from it, that, if any one of them obtains an assignment of it, then (unless he is affected by some of the circumstances which equity considers as fraudulent, or as otherwise control- ling his rights) he will be entitled, both at law and in equity, to the estate for the whole continuance of the term, to the utter exclusion of all the other claimants. This, if the term is of long duration, absolutely deprives all the other claimants of every kind of benefit in the land(a). 802. At common law all terms for years are deemed to be terms in gross(b). And courts of equity, when they hold terms for years to be attendant upon the inheritance, always do so by affecting the person holding the term, with a trust for that purpose, either upon the express declaration of the parties, or by implication of law. If the term is made attend- ant upon the inheritance by express declaration, it is immate- rial whether the term, if it were in the same hands with the inheritance, would or would not have merged ; or whether it be subject to some ulterior limitation, to which the inheritance is not subject ; for the express declaration will be sufficient to make it attendant upon the inheritance. But if the term is to be made attendant upon the inheritance by implication of law, then it is necessary that it should not be subject to any other limitation, and that the owner of the inheritance should be entitled to the whole trust in the term(c ). 803. The general rule is, that where the same person has the inheritance and the term in himself, although he has in one the equitable interest, and in the other the legal interest, there the inheritance by implication draws to itself the term, and makes that attendant upon it. For, as at law, if the legal (a) Story, s. 999; Co. Litt. 290 5, Butler’s note s. (1), 13. (6) Willoughby v. Willoughby, 1 T. R. 765, Scott v, Fenhoullet, 1 Bro. C. C. 69, 70. (c) 2Fonbl, Eq. B. 2, ch. 4, 8.3, note(/) ; Scott v. Fenhoullet, 1 Bro. C. C.70, 344 EQUITY JURISPRUDENCE. estate in the term and in the inheritance come into the same hand, the term is merged, and the estate goes to the heir; so in equity, where the one estate is equitable, and the other legal, it is in the nature of a merger; and the trust of the term will follow the inheritance(q). 804, But although a term may be so attendant upon the inheritance, yet, as the legal estate in it remains distinct and separate from the inheritance at law, it may at any time be disannexed therefrom by the proper acts of the parties in interest, and be turned into aterm in gross at law. Anda term so attendant becomes a term in gross, when it fails of a freehold to support it, or it is divided from the inheritance by different limitations from those of the latter(’). 805. In many cases, the distinction between terms in gross and terms attendant upon the inheritance, is highly im- portant; the former being generally treated as mere person- alty ; the latter, as partaking of the realty, and following the fate of the inheritance. Thus, for example, a term attendant upon the inheritance will not pass by a will not executed, so as to pass real estate under the statute of frauds. So, sucha term is real assets in the hands of the heir; for the statute of frauds having made a trust in fee assets in the hands of the heir, the term, which follows the inheritance, and is subject to all the charges which would affect the inheritance, must also be real assets. On the contrary, a term in gross is per- sonal assets only(c). 806. Where such terms are created to raise portions for children upon marriage settlements, and the settler also per- sonally covenants to pay such portions, the real estate is con- sidered as the primary fund, and the personal estate of the covenanter as auxiliary only(d). If there be nosuch personal (a) Story, s. 1001; Capel » Girdler, 9 Ves. 510; Best v. Stamford, 2 Freem. 288; Whitchurch v. Whitchurch, 2 P. W. 336; Sidney v. Shelly, 19 Ves, 352; Kelly » Power, 2B. & B. 253. (b) Willoughby v. Willoughby, 1 T. R. 765, 770. (c) Story, s. 1002. (d) Lechmere v. Charlton, 15 Ves. 197. MORTGAGES. 845 covenant for the payment of the portions, but only a covenant to settle ‘lands, and to raise a term of years out of the lands for securing the portions, in such a case, even although there be a bond to perform the covenant, the portions are not in any event payable out of his personal estate(a) CHAPTER XXVIII. MORTGAGES. 807. A MORTGAGE is a conveyance or assignment to the creditor of the whole or part of the debtor's interest in real or personal estate, implying the existence of a debt and condi- tional upon its non-payment on a certain day, but becoming absolute at law upon breach of the condition(b). It may be legal or equitable, the nature of the latter being, that no legal interest in the property mortgaged passes to the mortgagee. 808. Mortgages had no existence in English jurisprudence, while the system of feudal tenures prevailed in its full vigour, as they were incompatible with the leading objects of that system(c). But, as soon as the general right of alienation of real property was admitted, the necessities of the people led to the introduction of mortgages(d). 809. The ordinary mortgage was, at the common law, strictly an estate upon condition ; that is, a feoffment of the land was made to the creditor, with a condition in the deed of feoftment, or in a deed of defeasance executed at the same time, by which it was provided that on payment by the mortgagor, or feoffer, of a given sum at a time and place certain, it should be lawful for him to re-enter. Immediately on the livery made,. (a Story, s. 1003; Edwards v. Freeman, 2 P. W. 437. (0) Fisher on Mortgages, ss. 8, 1321. (c) Glanville, Lib. 10,6. And see Bac. Abridg. Mortgage A. (d) 2 Fonbl. Eq. B. 3, ch. 1, s. 1, and note (a); Bac. Abridg. Mortgage A. ; Litt. 2. 327, 332; Co. Litt. 202 6, 205 a ; Coote on Mortgages, 4. 346 EQUITY JURISPRUDENCE. the mortgagee or feoffee became the legal owner of the land, and in him the legal estate instantly vested, subject to, the condition. If the condition was performed, the feoffer re- entered and was in of his old estate. If the condition was broken, the feoffee’s estate became absolute and indefeasible, and all the legal consequences followed, as though he had been absolute owner from the time of his feoftment(a). 810. So far as the common law was concerned, the mortga- gor was subjected to great hardships and inconveniences if he did not strictly fulfil the conditions of the mortgage at the very time specified. He thereby forfeited the inheritance, or the term, as the case might be, however great might be its - ' intrinsic value, compared with the debt for which it was mortgaged(b). 811. Courts of equity, however, soon arrived at the just conclusion, that mortgages ought to be treated as a mere security for the debt due to the mortgagee ; and that although forfeited at law, the mortgagee held the estate as a trust(c); the mortgagor having an equity of redemption, which he might enforce against the mortgagee, as he could any other trust, if ‘he applied within a reasonable time to redeem, and offered a full payment of the debt, and of all equitable charges(d). 812. Perhaps the triumph of common sense over profes- sional prejudices has never been more strikingly illustrated than in the gradual: manner in which courts of equity have been enabled to withdraw mortgages from the stern and un- relenting character of conditions at the common law(e). 818. The doctrine that the mortgage is only a pledge or security for the payment of the debt, or the discharge of the (a) Coote, 6. (b) Story, x. 1012. (c) Seton v. Slade, 7 Ves. 273; Cholmondeley »v. Clinton, 2 J. & W. 181. See also Casbourne v. Inglis, 2 J. & W. 194, note. (4) Story, s. 1013; Langford v. Barnard, Tothill, 134 ; Emmanuel College v. Evans, 1 Chan. Rep. 18. (e) 4 Kent, Comm. 158, MORTGAGES. 847 other engagements, for which it was originally given, having been established, it yet remained to be determined what was the true nature and character of the equity of redemption, and of the relations between the mortgagor and mortgagee. 814. At one time it was contended that the mortgagor, after forfeiture of the condition, had but a mere right to reduce the estate back into his own possession by payment of the debt, or other discharge of the condition(a). But it is now firmly established, that the mortgagor has an estate in the land in equity, in the nature of a trust estate, which may be granted, devised, and entailed(b), and, if entailed, may be ‘barred by a fine or recovery in the usual way. It is also liable to tenancy by the courtesy, but was not liable to dower(c), until the passing of the 4 Wm. 4, c. 1(d). 815. The estate of the mortgagee being treated, in equity, as a mere security for the debt, it follows the nature of the debt. And, although, where the mortgage is in fee, the legal estate descends to the heir, yet, in equity, it is deemed a chat- tel interest and personal estate, and belongs to the personal representatives, as assets(¢). Upon the same ground, an assign- ment of the debt by the mortgagee carries with it, in equity, as an incident, the interest of the mortgagee in the mortgaged property ; unless, indeed, the instrument of assignment con- tains a plain exception of the latter(/). 816. The mortgagee, by virtue of his mortgage becomes the legal owner of the land, and consequently entitled at law to immediate possession, or to the receipt of the rent, if the land be under lease(g). But where the mortgagee enters into pos- (a) Rosearrick v. Barton, 1 Chan. Ca. 217. (6) Pawlett v. Att.-Gen., Hardres, 469; Casborne v. Scarfe, 1 Atk. 605. As to further title acquired by the mortgagor, see Jones v. Bank of Upper Canada, 13 Gr. 74, (c) Dixon v. Saville, 1 Bro. C. C. 327, 328. (d) Con. Stat. U. C. c. 84,8. 1. (e) Com. Dig. Chan., 4 A. 9; Casborne v. Scarfe, 1 Atk. 605. See Thorn- borough », Baker, 1 Ch. Ca. 283. (f) Story, s. 1016. (g) Coote, 339. 348 EQUITY JURISPRUDENCE. session of the mortgaged property, he is of course accountable for the rents and profits(a). And he will be charged an occu- pation rent for any part of it held by himself(b). And if a mortgagee gives notice to the tenants not to pay rent to the mortgagor, he becomes entitled to take possession, and though he does not do so, he must be answerable to the mortgagor for any loss which may occur(¢). 817. Courts of equity will not, however, ordinarily require annual rests to be made in settling the accounts, as against a mortgagee in possession. Thus, they will not require annual rests to be made, where the interest of the mortgage is in ar- rear when the mortgagee takes possession, even although the rents and profits may exceed the annual interest, nor until the principal mortgage debt is entirely paid off(d). But where special circumstances exist, as, for example, where no arrears of interest are due at the time when the mortgagee enters into possession, or an agreement exists between the parties, by which the interest in arrear is converted into principal, there, and in such cases, annual rests will be made(e). 818. A mortgagee in possession, will in equity be allowed for all repairs necessary for the support of the property(f), and also for doing that which is essential for the protection of the title of the mortgagor(g). But he will not be allowed for general improvements made without the acquiescence or con- sent of the mortgagor, which enhance the value of the estate- (a) Sherwin v, Shakspear, 5 D. M. & G. 531, 586; Kensington v. Bouverie, 7 D. M. & G. 157.. But see Soar v. Dalby, 15 Beav. 156 ; Parkinson v. Hanbury, L. R. 2H. L. 1. (b) Smart v. Hunt, 1 Vern. 418 n ; Trulock ». Robey, 15 Sim. 265; 2 Ph. 396. (c) Heales v. McMurray, 23 Beav. 401. And see Penn v. Lockwood, 1 Gr. 547; (d) Finch v. Brown, 3 Beav. 70; Wilson v. Cluer, 3 Beav. 136 ; Moore v. Painter, 6 Jur, 903; Coldwell v. Hall, 9 Gr. 110, And see Gordon v. Eakins, 16 Gr. 363; Crippen v. Ogilvie, 15 Gr. 568 ; Scholefield v. Lockwood, 32 Beav. 439 ; Latter 2. Dashwood, 6 Sim. 462. But see Thorneycroft v. Crockett, 2 H. L. 239. (e) Shephard v. Elliott, 4 Madd, 254; Gould v. Tancred,2 Atk. 533; Wilson v. Metcalfe, 1 Russ. 530; Crippen v. Ogilvie, 15 Gr. 568. And see Morris v. Islip, 20 Beav. 654; Thompson v. Hudson, L. R. 10 Eq. 497. {f) Sandon v. Hooper, 6 Beav. 246 ; Neesom v. Clarkson, 4 Ha. 97. (g) Sandon v. Hocper, 6 Beav. 246; Pelly v. Wathen, 7 Ha. 373; Parker v. Watkins, John. 133. MORTGAGES. 349 especially if they are of such a nature as may cripple the right or power of redemption(a). And in no case will a court of equity permit a mortgagee to commit waste or do damage to the estate, as for example, by pulling down cottages(b), or destroying(c), or losing the title deeds(d). 819. Where the mortgagor contracts to sell the fee-simple of the mortgaged estate, free from incumbrances, thepurchaser, with the concurrence of the mortgagee, is entitled, on procur- ing a discharge of the vendor from all liability in respect of the mortgage debt, and bearing any extra expense occasioned by his demand, to require a conveyance of the equity of re- demption, in such manner as to keep the mortgage on foot(e). 820. The mortgagor is not, unless there be some special agree- ment to that effect, entitled of right to the possession of the land mortgaged. He holds it solely at the will and by the permission ofthe mortgagee, who may at any time, by an ejectment, with- out giving any prior notice, recover the same against him or histenants. In this respect, the estate of the mortgagor at law is inferior to that of a tenant at will(f). But so long as he continues in possession by the permission of the mortgagee, he is entitled to take the rents and profits in his own right, without any account therefor to the mortgagee(g). He will not, however, be permitted to do any acts injurious to, or di- minishing the security of the mortgagee; and if he should commit, or attempt to commit, acts of waste, he will be res- (2) Sandon v. Hooper, 6 Beav. 248; Hughes v. Williams, 12 Ves. 493 ; Thornney- croft v. Crockett, 16 Sim. 445; Rowe v. Wood, 2J. & W, 553, 556; Kerby v.. Kerby, 5 Gr. 587. But see Millett v. Davy, 31 Beav. 470. And see Carroll v. Robertson, 15 Gr. 173 ; Constable v. Guest, 6 Gr. 510. (b) Sandon v. Hooper, 6 Beav. 246 ; Farrant v. Lovell, 3 Atk. 723. (c) Hornby v. Matcham, 16 Sim. 325. (@) Brown v. Sewell, 11 Ha. 49. And see Lord Middleton v. Elliot, 15 Sim. 531 ; Woodman v. Higgins, 14 Jur. 846. Asto loss of title deeds, see McDonald v. Hime, 15 Gr 72; Bennett v. Foreman, 15 Gr. 117. (e) Cooper v. Cartwright, John, 679; Clark v. May, 16 Beav. 273. (f) Co. Litt. 204 8, note (1); Keech 2. Hall, Doug. 21; Moss. Gallimore, Doug. 279. (9) Story, s. 1017; Colman v. Duke of St. Albans, 3 Ves. 25, 32; Mead v Lord Orrery, 3 Atk. 244; Ex parte Wilson, 2V. & B. 252; Hele v. Lord Bexley, 20 Beav. 127. 850 EQUITY JURISPRUDENCE. trained by injunction(a). But to restrain the felling of timber it would seem to be necessary to shew that without the timber, the security is a scanty one(b). 821. As to what constitutes a mortgage, there is no difficulty whatever in courts of equity, although there may be technical embarrassments in {courts of law. The particular form or words of the conveyance are unimportant; and it may be laid down as a general rule, subject to few exceptions, that wher- ever a conveyance, assignment, or other instrument, transfer- ring an estate, is originally intended between the parties as a security for money, or for any other incumbrance, whether this intention appear from the same instrument or from any other(c), it is always considered in equity as a mortgage, and consequently is redeemable upon the performance of the con- ditions or stipulations thereof(d). Even parol evidence is admissible in some cases, as in cases of fraud, accident, and mistake, to show that a conveyance, absolute on its face, was intended between the parties to be a mere mortgage or secu- rity for money(e). 822. The question whether a conveyance of land and the contemporaneous execution of a bond to reconvey the land upon payment of the consideration of the conveyance create a mortgage er a mere contract for repurchase is one of fact, and, if really doubtful, upon the proof, should be decided in favour of its being a mortgage(f). The existence of a debt is the decisive test upon this point. And it is not requisite that (a) Robinson v. Litton, 3 Atk. 210; Usborne v. Usborne, 1 Dick. 75 ; Humphreys v. Harrison, 1 J. & W. 581; As to removing machinery by a mortgagor, see Gor- don v. Johnston, 14 Gr. 402; Crawford v. Findlay, 18 Gr. 51; Myers v. Smith, 15 Gr. 616, (b) Hippesley v. Spencer, 5 Madd. 422; King v. Smith, 2 Ha. 239; Wason v. Carpenter, 13 Gr. 329 ; Cawthra v. Maguire, 5 U. ©. L. J. 142, And see Russ v. Mills, 7 Gr. 145. (c) See Waters ». Mynn, 14 Jur. 341; Hawke v. Milliken, 12 Gr. 236. (2) Butler’s note (1) to Co. Litt. 203 6; 2 Fonbl. Eq. B. 3, ch. 1, 8. 4, and note (e); 3.5, note (h). See Monk v. Kyle, 17 Gr. 537; Healey v. Daniels, 14 Gr. 633. (e) Story, s. 1018; Montacute v Maxwell, 1 P. W. 618; Walker v. Walker, 2 Atk. 98; Vernon». Bethell, 2 Ed, 110; Le Targe v. De Tuyle, 1 Gr. 227; Bernard v. Walker, 2 Gr. E. & A, 121. (f) Bostwick v. Phillips,6 Gr. 427. MORTGAGES. 351 the bond for reconveyance should bear the same date as the: deed in order to constitute a mortgage(a). 823. The assignee of a mortgage takes it subject not only to the state of the accounts between the mortgagor and mort- gagee, but also to all the equities existing as against the mortgagee(b). . 824. So inseparable, indeed, is the equity of redemption from a mortgage, that it cannot be disannexed, even by an express agreement of the parties. If, therefore, it should be expressly stipulated, that unless the money should be paid ata particular: day, or by or to a particular person, the estate should be irre- deemable, the stipulation would be utterly void(c). 825. Courts of equity have established, as principles not to be departed from, that once a mortgage always a mortgage ; that an estate cannot at one time be a mortgage, and at another time cease to be so, by one and the same deed; and that a mortgage can no more be irredeemable than a distress irre- pleviable(d). 826. Mortgages may not only be created by the express deeds and contracts of the parties, but they may also be im-: plied in equity, from the nature of the transactions between the parties ; and then they are termed equitable mortgages(e). Thus, if the debtor deposits his title-deeds to an estate with a creditor, as security for an antecedent debt, or upon a fresh loan of money, it is a valid agreement for a mortgage between the parties, and is not within the operation of the statute of {a) Story, s. 1018 b. (b) McPherson v, Dougan, 9 Gr. 258; Smart v. McEwan, 18 Gr, 623, And see Engerson v. Smith, 9 Gr. 16; Church Society v, McQueen, 15 Gr. 281; Henderson v% Brown, 18 Gr. 79. (c) Co. Litt. 204 6, note (1); Bonham v. Newcomb, 1 Vern. 232 ; Seton v. Slade, 7 Ves, 273 ; Com, Dig. Chan. 4 A. 1, 2. (d) Coote, 11; and see Howard v. Harris, 1 Vern. 192; Jason v. Eyre, 2 Chan. Ca. 33; Newcomb v. Bonham, 1 Vern. 7 ; Goodman », Grierson, 2 B. & B. 278; Spurgeon: » Collier, 1 Ed. 55; Rushbrook v. Lawrence, L. R. 8 Eq. 25; L. R. 5 Chan. 3. (e) See Abbott v. Stratton, 3J. & L. 609. 352 EQUITY JURISPRUDENCE. frauds(a). This doctrine has sometimes been thought difficult to be maintained either upon the ground of principle or public policy, and although it is firmly established, a disposition has been evinced not to enlarge its operation(b). It is not, there- fore, ordinarily applied to enforce parol agreements to make a mortgage, or to make a deposit of title-deeds for such a pur- pose ; but it is strictly confined to an actual, immediate, and bona fide deposit of the title-deeds with the creditor, as a secu- rity, in order to create the lien(c). 827. Such an equitable mortgage will not, however, since the passing of the recent Registry Act, be valid as against a registered instrument executed by the same party, his heirs or assigns(d). 828. As to the kinds of property which may be mortgaged, it may be laid down as a general proposition, with few excep- tions, that every species of property, real or personal, corpo- real or incorporeal, movable or immovable, in possession remainder, expectancy, or even in action, is the subject of mortgage(e). 829. As to persons qualified to mortgage, a right to mort- gage is prima facie, incident to the right to property, and co- extensive with it(/). A trust to sell, if there be nothing to negative the settlor’s intention to convert the estate absolutely, will not authorize the trustee to execute a mortgage(g). But (a) Russel v. Russel, 1 Bro. C. C. 269; Ex parte Coming, 9 Ves. 116, 117 ; Birch v. Ellames, 2 Anst. 427, 438; Ea parte Mountfort, 14. Ves. 666 ; Ex parte Langston, ‘17 Ves. 228, 229; Pain v. Smith, 2 M. & K. 417; Keys v. Williams, 3 Y. & C. 565. (b) Ex parte Haigh, 11 Ves. 403; Norris v. Wilkinson, 12 Ves. 197,198; Hx parte Kensington, 2 V. & B. 83; Ex parte Coomb, 17 Ves. 369 ; Ex parte Hooper, 1 Meriv. . 9; Ex parte Whitbread, 19 Ves. 209. And see Chapman v. Chapman, 15 Jur. 265. (ce) Norris v. Wilkinson, 12 Ves. 197. And see as to equitable mortgages, Ex parte National Bank, L. R. 14 Eq. 507 ; Wilson’s case, L. R. 12 Eq. 516; Newton v. New- ton, L. R. 6 Eq. 135; L. R. 4 Chan. 143; Re Kerr’s Policy, L. R. 8 Eq. 381; Chad- wick v. Turner, L. R. 1 Chan. 310; Layard v. Maud, L. R. 4 Eq. 397; Thorpe v. Holdsworth, L. R. 7 Eq: 139. (d) Ont. Stat. 31 Vic., c. 20, s. 68. And see McDonald v. McDonald, 14 Gr. 183. ‘ (e) Coote, 104 ; and see Re Sankey, B. C. Co., L. R. 9 Eq. 721; L. R. 10 Eq,, 381; Gibbs & West’s case, L. R. 10 Eq. 312. ( f) Coote, 103; and see Mason v. Parker, 16 Gr. 230. (9) Haldenby v. Spofforth, 1 Beav. 390; Stronghill v. Anstey, 1D. M. & G. 635; Page v. Cooper, 16 Beav. 396; Devaynes v. Robinson, 24 Beav. 86. ’MORIGAGES. 3853 where an estate is devised to trustees, charged with debts, and subject thereto, upon trust for certain parties, so that a sale, though it may be required, is not the testator’s object, the trustees may, for the purpose of paying the debts, mortgage instead of selling(a). 830. As an executor may absolutely dispose of the testator’s assets for the general purposes of the will, there seems no good reason why, in the exercise of a sound discretion, and presum- ing the language of the will does not peremptorily require an absolute sale, the executor may not raise the money required by a partial sale or mortgage of the assets, and, ac- cordingly, the power of an executor or administrator to mort- gage the assets has been recognised by high authorities on several occasions(b). 831. An equity of redemption is not only a subsisting estate and interest in the land in the hands of the heirs, devisees, assignees, and representatives of the mortgagor, but also in the hands of other persons, who have acquired an interest in the lands mortgaged by operation of law, or otherwise, in privity of title(c). Such persons have a clear right to disen- gage the property from all incumbrances, in order to make their own claims beneficial or available. Hence a tenant for life, remainder man or reversioner(d), a tenant by the cour- tesy(e), a jointress( f), a tenant in dower(g), a judgment credi- tor(h), and, indeed, every other person, being an incum- brancer, or having legal or equitable title, or lien therein, may insist upon a redemption of the mortgage, in order to the due (a) Ball v. Harris, 4M. & C. 264 ; Stronghill v. Anstey, 1 D. M. & G. 645; Page». Cooper, 16 Beav. 400. (6) Mead v. Orrerey, 3 Atk. 239; Scott v. Tyler, 2 Dick, 725; McLeod 7 Drum- mond, 17 Ves. 154. But see Andrew v. Wrigley, 4 Bro. C. C. 138. (©) Co. Litt. 208, note (1). (d) Ranald v, Russell, 1 Younge, 9; Rafferty ». King, 1 Keen, 618; Aynsly ». Reed, 1 Dick. 249. (e) Jones », Meredith, Bunb. 347. (f) Howard v. Harris, 1 Vern. 190. (g) Co. Litt. 208 a, note (1) ; Swannoch v. Lifford, Ambler, 6; Kinnoul v. Money, 3 Swanst. 202, (h) Stonehewer v. Thompson, 2 Atk. 440. And see Fawcett v. Fothergill, 1 Dick.19, 23 ! i 854 EQUITY JURISPRUDENCE. enforcement of their claims and interests respectively in the land(a). When any such person does so redeem, he or she becomes substituted to the rights and interests of the original mortgagee in the land, exactly as in the civil law. And in some cases a further right of priority by tacking might for- merly be acquired, but this right of tacking has now been abolished. 832. As a person who redeems is entitled, upon payment, to a reconveyance of the mortgage, the mortgagee cannot sue for the mortgage money where he has put it out of his power to reconvey the property or part of it(b). Thus, where a mort- gagee and mortgagor sold and conveyed part of the mortgaged property, without the assent of a person to whom the mort- gagor had, subsequently to the mortgage, sold the remainder of the property, it was held that the mortgagee could not call on the owner of such remaining portion for payment of the balance of the mortgage money(c). 833. Where default is made in payment of the mortgage money, the mortgagee is entitled to pursue all his remedies, both legal and equitable, at the same time. He may bring an action on the covenant for the money, and an action of eject- ment to recover the possession, and at the same time file a bill . in equity for foreclosure(d). 824. In England, a bill for foreclosure is deemed, in com- mon cases, the exclusive and appropriate remedy, and the courts of equity in that country refused, until a recent period, _ to decree a compulsory sale against the will of the mortgagor (a) See Anon. 3 Atk. 814; Fell». Brown, 2 Bro. C. C. 279; Christian v. Field, 2 Ha. 177 ; Acton v. Pierce, 2 Vern. 480; Downe v. Morris, 3 Ha. 394; Janes v. Jackson, 16 Ves. 367. : (6) Palmer v. Hendrie, 27 Beav. 349; Lockhart v. Hardy, 9 Beav: 349. See Bald v, Thompson, 16 Gr. 177. (c) Gowland v. (-arbut, 13 Gr. 578. And see Crawford v. Armour, 13 Gr. 576; Beck v. Moffatt, 17 Gr. 601; Burnham v Galt, 16 Gr. 417. (d) But by pursuing his legal remedies at the same time he may in equity be de- prived of his costs, Von. Gen. Ord. 465. MORTGAGES. 855 (a). But in this Province, a mortgagee is entitled to file a bill for sale, and the court may order such sale without giving the usual or any time to redeem(d). 835. A person who has an assignment of the debt, with the right to retain a portion of it, the remainder belonging to the assignor, but no assignment of the mortgage deed, cannot maintain a bill to foreclose. That should be in the name of the party holding the deed, who will recover the portion of the debt assigned for the benefit of the assignee(c). 836. It is now a common practice to insert in mortgages a power of sale upon default of payment. And although an opinion was entertained unfavourable to such a power, as dangerous, it is now firmly established (d). ‘837. Powers of sale are construed liberally for the purpose of effecting their general object. Thus, a power to sell, either by public auction or private contract, and a sale by private contract, with an agreement that a portion of the money might remain on mortgage of the property sold, was held valid(e). 838. A power in a mortgage deed to the mortgagee to sell, is in the nature of a trust, but it may be exercised without # (a) This general rule is departed from in certain cases: (1) where the estate is deficient to pay the incumbrance, Dashwood v. Bithazey, Mosel. 196 ; (2) where the mortgagor is dead, and there is a deficiency of personal assets, Daniel v. Skipwith, 2 Bro. C. C. 155; (3) where the mortgage is of a dry reversion, How v., Vigures, 1 Ch. 32; (4) where the mortgagor dies, and the estate descends to an infant, Booth v. Rich, 1 Vern. 295; Mondey v. Mondey, 1 V. & B. 223. But see Goodier ». Ashton, 18 Ves. 83; Gore v. Stackpole, 1 Dow, 18; Davis v. Dowding, 2 Keen, 245; (5) where the mortgagor becomes bankrupt, and the mortgagee prays a sale ; (6) or where the mortgagor is dead, and the mortgagee by his bill, brought against tne executor or administrator and the heir, prays for the sale of the mortgaged estate, alleging it to be scanty security, and for the payment of any deficiency out of the gen- eral estate of the deceased mortgagor, King ». Smith, 2 Ha. 239, (b) Con. Gen. Ord. 426, 427. But see Rigney v. Fuller, 4 Gr. 198. (c) Story, s. 1023 a; Morley v. Morley, 25 Beav. 253. (ad) Croft v. Powell, Comyns, 603; Anon., 6 Mad. 10; Corder v. Morgan, 18 Ves. 344; Re Richardson, L. R. 12 Eq. 398. And see Re Chawner’s Will, L. R. 8 Eq. 569; Cruikshank ‘v. Duffin, L. R. 13 Eq. 555; Boyd v. Petrie, L. R. 7 Chan. 385, reversing §. C. 10 Eq. 482; Bridges Longman, 24 Beav. 27; Cook v. Dawson, 29 Beav. 128. (© Story, s. 1027 a. See Davey v. Durrant, 1 D. & J. 535. 356 EQUITY JURISPRUDENCE, the concurrence of the mortgagor(a). But the mortgagee, like every other trustee, is bound to use all the means in his power to get the fairest and best price for the property(b). The mort- gagor cannot purchase under the power so as to relieve himself from subsequent charges made by him before the sale(¢) ; and, perhaps, the rule would be the same if the estate was sold to a stranger and purchased from him by the mortgagor(d). So, the mortgagee cannot, by a pretended sale, acquire the pro- perty as his own; relief from such a sale would be afforded even at a considerable distance of time(e). 889. Where there are various persons claiming adverse rights and limited interests in the mortgaged estate, a court of equity will direct how the assets and securities are to be mar- shalled, so as to do justice between the different claimants, and prevent irreparable mischiefs, as well as to ascertain the ‘amounts and proportions in which they should contribute towards the discharge of the incumbrances common to them all(f). 840. The ordinary limitation of time within which a mort- gage is redeemable, is twenty years from the time when the mortgagee has entered into possession, after breach of the condition, under his title, by analogy to the ordinary limita- tion of rights of entry and actions of ejectment(g). If, there- fore, the mortgagee enters into possession in his character of (a) Sug. -V. & P. 65. The insertion of a power of sale does not deprive the mortgagee of his right to a foreclosure, Slade v, Rigg, 3 Ha. 35; Wayne v. Hanham, 9 Ha. 62. (b) Orme v. Wright, 3 Jur. 19; Richmond v. Evans, 8 Gr. 508; Latch v. Forlong, 12 Gr. 303. And see Bank of Upper Canada v. Wallace, 16 Gr. 280 ; Brown ». Wood- house, 14 Gr. 682; Trust and Loan Co. v. Boulton, 18 Gr. 234. (c) Otter v. Lord Vaux, 2K. & J. 650; 6 D. M. & G. 638. (d) Sug, V. & P. 66. And see McDonald#y, Reynolds, 14 Gr. 691. (e) Robertson v. Norris, 1 Giff, 421; Popham v. Exham, 10 Ir. Ch. 440, And see Ellis v. Dellabough, 15 Gr. 583; Spain v. Watt, 16 Gr. 260; Howard v. Harding, 18 Gr. 181, (f) Story, s. 1028, And see Boucher v. Smith, 9 Gr. 347; Ricker ». Ricker, 14 Gr. 264; Barker » Eccles, 17 Gr. 277; Jones v, Beck, 18 Gr. 671; Re Mower’s Trusts, L. R. 8 Eq. 110. (g) Raffety v. King, 1 Keen, 602, 609, 610, 616, 617; Cholmondeley v. Clinton, 2 J. & W. 1,191; Corbett v. Barker, 1 Anst, 138; 3 Anst. 755 ; White v. Parnther, 1 Knapp, 228, 229, ‘ MORTGAGES 857 mortgagee, and by virtue of his mortgage alone, he is for twenty years liable to account; and, if payment be tendered to him he is liable to become a trustee of the mortgagor, and to be treated as such. 841. If the mortgagor permits the mortgagee to hold the possession for twenty years without accounting, or without admitting that he possesses a mortgage title only, the mortga- gor loses his right of redemption, and the title of the mortgagee becomes as absolute in equity, as it previously was inlaw. In such a case the time begins to run against the mortgagor from the moment the mortgagee takes possession in his character as such; and if it has once begun to run, and no subsequent admission is made by the mortgagee(a), it continues to run against all persons claiming under the mortgagor, whatever may be the disabilities to which they may be subjected(b). 842. But if the mortgagee enters, not in his character of mortgagee only, but as purchaser of the equity of redemption, he must look to the title of his vendor and the validity of the conveyance which he takes. So that, if the conveyance be such as gives him the estate of a tenant for life only in the equity of redemption, there, as he unites in himself the char- acters of mortgagor and mortgagee, he is bound to keep down the interest of the mortgage like any other tenant for life, for the benefit of the persons entitled to the remainder ; and time will not run against the remainder-man during the continu- ance of the life estate(c). 843. Similar considerations apply, in many respects, to the right of foreclosure of a mortgage. If the mortgagee suffers the mortgagor to remain in possession for twenty years after the breach of the condition, without any payment of interest, or any admission of the debt, or other duty, the right to file a (a) An acknowledgment by one of two joint mortgagees and trustees is inopera- tive, Richardson v. Younge, L, R. 10 Eq. 275; 6 Chan. 478. @) Story, s. 1028 a. (c) Raffety v, King, 1 Keen, 601, 609. 610, 616 to 618; Corbett v. Barker, 1 Anst. 1 ; 3 Anst. 755; Reeve v. Hicks, 2S. & S. 403; Ravald v. Russell 1 Younge, 19. 3 858 EQUITY JURISPRUDENCE. bill for a foreclosure will generally be deemed to be barred and extinguished(a). However, in cases of this sort, as the bar is not positive, but founded upon a presumption of pay- ment, it is open to be rebutted by circumstances(b). 844. A person cannot redeem before the time appointed in the mortgage deed, although he tenders to the mortgagee both the principal and the interest due up to that time(c); and if he does not pay the debt at the appointed time, six months’ notice to the mortgagee of his intention to do so is necessary, unless the mortgagee has demanded or taken steps to compel payment(d). 845. A mortgage to secure future advances, expressed in any form upon the face of the deed, which is intelligible and not calculated to mislead future incumbrancers, is valid ; and the mortgagee may continue to make advances until he has express notice of some further incumbrance, or alienation of the title of the mortgagor. But where the mortgagee has notice of a subsequent mortgage, he cannot hold his security for advances made after such notice(e). 846. Where the contract binds the mortgagee to make the advances, absolutely, although the payment is future, the debt is present, and the binding force of the mortgage, and the ex- tent of the incumbrance, is the same as if the advances were made at the date of the mortgage; but where the advances depend upon the continued consent of both the mortgagor and mortgagee, and it isin effect to secure a balance of running account, the force of the security is liable to be affected by (a) Stewart v. Nicholls, 1 Tamlyn. 307; Christophers v. Sparke, 2 J, & W. 223; Trash v. White, 3 Bro, C. ©. 289; Toplis v. Baker, 2 Cox, 119. See also White . Parnther, 1 Knapp, 228, 229. (b) Story, s. 1028 b. (c) Brown v. Cole, 14 Sim. 427. (d) Coote, 528. But see Green v, Adams, 2 Chan. Cham. R. 134. (ce) Shaw v. Neale, 20 Beav. 157; 6 H. L. 581; Rolt ». Hopkinson, 25 Beav. 461; 4 Juv. N. 8. 919; Daun v. The City, &e., Brewery Co., L. R. 8 Eq. 155. See Brown- lee v, Cunningham, 13 Gr. 586; Ross v. Perrault, 13 Gr. 206; Inglis v. Gilchrist, 10 Gr. 301. Gordon v, Graham, 2 Eg, Cas, Ab. 998 is now overruled. MORTGAGES. 359 subsequent incumbrances, which are legally brought home to the knowledge of the first mortgagee(a). 847. The doctrine of tacking which prevailed in England, has been abolished in this Province by statute(b). But the de- visee of a mortgagor was held not entitled to redeem the - mortgage without also paying a judgment held by the mort- gagee against the mortgagor/c). 848. Where a mortgage contains no covenant by the mort- gagor to insure, but he does insure, and a loss by fire occurs, the mortgagee is entitled to have the insurance money laid out in rebuilding(d). And a mortgagee insuring the mortgaged premises against fire, out of his own funds, is entitled to re- ceive the amount of the policy in the event of loss, for his own benefit, without giving credit therefor upon the mortgage(e). 849. A mortgage upon property differs from a pledge. The former is a conditional transfer or conveyance of the property itself; and, if the condition is not duly performed, the whole title vests absolutely at law in the mortgagee, exactly as it does in the case of amortgage of lands. A pledge only passes the possession, or, at most, a special property only to the pledgee, with a right of retainer, until the debt is paid, or the other engagement is fulfilled(/). 850. In mortgages of personal property, although the pre- scribed condition has not been fulfilled, there exists, as in mortgages of land, an equity of redemption, which may be asserted by the mortgagor, if he brings his bill to redeem (a) Story, s. 1023 c. See Hopkinson v. Rolt, 9 H L. 514; Daun ». City, &c., Brewery Co., L. R. 8 Eq. 155. But see McMaster v. Anderson, cited Taylor on Titles, 32, (b) Con. Stat. U. C. c. 89, 8. 56; 29 Vic. c. 24, s. 67; O. S. 31 Vie. c. 20, 8, 68. (c) McLaren v. Fraser, 17 Gr. 533. And see Keenan v, Anderson, 17 Gr. 636 ; Hyman v. Roots, 10 Gr. 340. (ad) Stinson v. Pennock, 14 Gr. 604. (e) Dobson », Land, 8 Ha. 216; Russell v. Robertson, 1 Chan. R. 72. (f) Ryallv. Rolle, 1 Atk. 166, 167 ; Ratcliffe v. Davies, Cro. Jac. 244; Com. Dig. Mortgage, A; Jones v. Smith, 2 Ves. 378. 360 EQUITY JURISPRUDENCE. within a reasonable time(a). There is, however, a difference between mortgages of land and mortgages of personal pro- perty, in regard to the rights of the mortgagee, after a breach of the condition. In the latter case, there is no necessity to bring a bill of foreclosure ; but the mortgagee, upon due no- tice, may sell the personal property mortgaged(b). 851. In cases of pledges, if a time for the redemption be fixed by the contract, still the pledgor may redeem afterwards, if he applies within a reasonable time. But if no time is fixed for the payment, the pledgor has his. whole life to redeem, unless he is called upon to redeem by the pledgee; and in case of the death of the pledgor without such demand, his per- sonal representatives may redeem(c). Generally speaking, the remedy of the pledgor is at law, but if any special ground is shown, as, if an account ora discovery is wanted, or there has been an assignment of the pledge, a bill will lie in equity(d). 852. On the other hand, the pledgee may bring in a bill in equity to foreclose and sell the pledge(e). It seems also, that the pledgee may, after the time for redemption has passed, upon due notice given to the pledgor, sell the pledge without a judicial decree of sale(/). 853. Questions often arise as to when and under what circumstances a mortgage is deemed to be extinguished. Un- doubtedly, by our law, the satisfaction of the principal debt by payment, or otherwise, will be deemed in equity an extin- guishment of the -mortgage, unless there is an express or implied contract for keeping alive the original security/g). (a) See Kemp». Westbrook, 1 Ves, Sen. 278. And see Langton ». Waite, L. R. 6 Eq. 165; L. R. 4 Chan. 402. (0) Story, s. 1031; Tucker v. Wilson, 1 P- W. 261; Lockwood v, Ewer, 9 Mod. 275; 2 Atk, 303. ; (c) Story on Bailments, ss. 208, 345, 346, 348; Demandray v. Metcalf, 2 Vern. 691, 698 ; Vanderzee v, Willis, 3 Bro. C C. 21; Kemp v. Westbrook, 1 Ves. Sen. 278. i (d) Jones v Smith, 2 Ves, 372. (e) Ex parte Mountfort, 14 Ves. 606. (f) Kemp v. Westbrook, 1 Ves. Sen. 278; Lockwood »v. Ewer, 9 Mod. 278; Potho- nier v, Dawson, Holt’s N. P. 383. (9) Chester v. Willis, Ambl. 246; Compton t. Oxendon, 2 Ves. 264. But see Withington v. Tate, L, R. 4 Chan, 288 ; Heyman v. DuBois, L. R. 13 Eq. 158, ASSIGNMENTS. 361 854. An extinguishment of the debt will also ordinarily take place, where the mortgagee becomes also absolute owner of the equity of redemption, for then the equitable estate becomes merged in the legal. The rule, however, is not inflexible, and may be controlled by the express or implied intention of the parties; and where it is manifestly for the interest of the per- son in whom both the legal and equitable titles unite, to keep the incumbrance alive, there courts of equity will imply an intention to keep it alive, unless the other circumstances of the case repel such a presumption(a). The same doctrine, with the like qualifications, will apply to the case where an assignee of a mortgage purchases the equity of redemption, or the as- signee of an equity of redemption purchases and takes a conveyance of the mortgage(b). CHAPTER XXIX. ASSIGNMENTS. 855. Another class of trusts, embraces ASSIGNMENTS of real and personal property upon special trusts. The most impor- tant and extensive of this class is that which embraces general assignments by insolyents and other debtors for the discharge of their debts. The question of the validity of such convey- ances, and under what circumstances they are deemed fraudu- lent, or bona fide, has been already, in some measure, considered under the head of constructive fraud(c). Priorities and pre- ferences given by such assignments, were not at one time deemed fraudulent or inequitable ; butall such preferences (a) St. Paul v, Viscount Dudley & Ward, 15 Ves. 173; Forbes v. Moffat, 18 Ves. 390 ; Wilkes v. Collin, L. R. § Eq. 338, And see Beaty v. Gooderham, 13 Gr. 317 ; Finlayson v. Mills, 11 Gr. 218; Elliott v. Jayne, 11 Gr. 412. (b) Story, s. 1035 c. (c) And see Estwick v. Caillaud, 5 T. R. 420; Holbird v. Anderson, 5 T. R. 235; Meux v, Howell, 4 East 1; The King v. Watson, 3 Price, 6; Small v. Marwood, 9 B. & C. 300; Pickstock v. Lyster, 3 M. & Selw. 371. 362 EQUITY. JURISPRUDENCE. are now forbidden by statute(a). A stipulation on the part of the debtor, in such an assignment, that the creditors taking under it, shall release and discharge him from all their further claims beyond the property assigned, will (it seems) be valid, and binding on such creditors(b). 856. In order to entitle the creditors, named in a general assignment for the benefit of creditors, to take under it, it is not necessary that they should be technical parties thereto(c). It will be sufficient, if they have notice of the trust in their favour and they assent to it(d). As it has been said, “Ifthe creditor has assented to it, and if he has acquiesced in it, or has acted under its provisions, and complied with its terms, and the other side express no dissatisfaction, the settled law of the court is, that he is entitled to its benefits”(e). And even where the creditors are required to execute the deed, before they can take under its provisions, they may take the benefit of the trust, where they have acquiesced, and taken no pro- ceedings against the debtor(/). 857. In all such cases of general assignments, voluntarily made by the debtor for the benefit of creditors, whether they are specially named in the instrument, or only by a general description, if such creditors are not parties thereto, and have not executed the same, the assignment is deemed, in equity, as well as at law, to be revokable by the debtor, except as to creditors who have assented to the trust, and given notice thereof to the assignee. For, until such assent and notice, the assignment is treated, as between the debtor and the assignee, (a) 22 Vic. c. 96; Con. Stat. U. CO. c. 26, s. 18. (6) Bank: of Toronto v. Eccles, 10 U. C. C. P. 282; 2Gr. E. & A. 53; Mulhol- land v. Hamilton, 10 Gr. 45. (c) Lane v. Husband, 14 Sim. 636 ; Field v. Lord Donoughmore, 1 Dru. & War. 227, See Simmonds v. Palles, 2 J. & L. 489; Acton v. Woodgate, 2 M. & K. 492. (d@) Acton v. Woodgate, 2M. & K. 492; Biron v. Mount, 24 Beav. 649. (e) Field v. Lord Donoughmore, 1 Dru. & War. 227; Pyper v. McDonald, 5U.C. L. J. 162. See Kirwan v. Daniel, 5 Ha. 499 ; Griffith v. Ricketts, 7 Ha. 307 ; Corn- thwaite v. Frith, 4 D. & Sm. 552. As to great delay, see Gould v. Robertson, 4 D. & Sm. 509 (f) Re Baber’s Trusts, L. R. 10 Eq, 555; Whitmore v. Turquand, 1 J. & H. 4443 3D. F. & J. 107. ASSIGNMENTS. 363 as merely directing the mode in which the assignee shall and may apply the debtor’s property for his own benefit(a). 858. Assignees under genera. assignments, such as assignees in cases of bankruptcy and insolvency, take only such rights as the assignor or debtor had at the time of the general as- signment; and consequently a prior special assignee will hold against them without giving notice thereof (b). > 859. In regard to particular assignments upon special trusts there is little to be said which is not equally applicable to all cases of jurisdiction exercised over general trusts. But courts of equity take notice of assignments of property, and enforce the rights growing out of the same, in many cases, where such assignments are not recognized at law as valid or effectual to. pass titles. Thus, a debt, or other chose in action, could not be transferred by assignment, except in case of the king, to whom and by whom, at the common law, an assignment of a chose in action could always be made(c). 860. But courts of equity totally disregarded this, and thus. give effect to assignments of trusts, and possibilities of trusts, and contingent interests, and expectancies, whether they are in real or in personal estate, as well as to assignments of choses in action(d). Every such assignment is considered in equity, (a) Story, s. 1036b; Garrard v. Lord Lauderdale, 3 Sim. 1. See Simmonds «. Palles, 2J. & L. 489; Wallwyn v. Coutts, 3 Meriv. 707 ; 8 Sim. 14; Page v. Broom,, 4 Russ. 6 ; Acton x. Woodgate, 2M. & K. 492; Glegg v. Rees, L. R- 7 Chan. 71. See Mackinnon v. Stewart, 1 Sim. n.s. 76; Le Touche v. Earl of Lucan, 7 Cl. & ‘Fin. 772; Montefiore v. Brown, 7 H. L. 241. (6) Story, s. 1038; Farrell v. Heelis, Ambl. 724. And see Brown v. Heathcote, 1 Atk. 160, 162; Mitford v. Mitford, 9 Ves. 99; Jewson v, Moulson, 2 Atk. 417, 420 ; Morrall v. Marlow, 1 P. W. 459; Ex parte Hanson, 12 Ves. 349; Grant v. Mills, 2 V. & B. 306; Ex parte Peake, 1 Madd. 346. It seems that notice is necessary to per- fect title of a special assignee as against the assignee in bankruptcy. See Wragge’s case, L. R. 5 Eq. 284 ; Ex parte Caldwell, L. R. 13 Eq, 188. (c) Co. Litt, 232 b, note; Stafford v. Buckley, 2 Ves. 177, 181; Com. Dig. As- signment, D; Miles v. Williams, 1 P. W. 252. Choses in action, or made assign- able by statute, Ont. Stat. 35 Vic. v. 12. (ad) Burn v. Carvalho, 4M. & C. 690 ; Warmstrey v. Tanfield, 1 Ch. Rep. 29 ; Goring v. Bickerstaff, 1 Ch. Cas. 8; Wind wv Jekyll, 1 P. W. 573, 574; Kimpland v. Courtaey, 2 Freem. 251; Thomas v. Freeman, 2 Vern. 593, and note (2); Wright v. Wright, 1 Ves. Sen. 411 ; Stokes v. Holden, 1 Keen. 145; Prosser v. Edmonds, 1Y. & C. Ex. 481, 486. But see Duggan’s Trusts, L. R. 8 Eq. 697. 364 EQUITY JURISPRUDENCE. as in its nature amounting to a declaration of trust, and to an agreement to permit the assignee to make use of the name of the assignor, in order to recover the debt, or to reduce the pro- perty into possession(a). 861. Courts of equity will support assignments not only of choses in action, and of contingent interests and expectancies, but also of things which have no present actual or potential existence, but rest in mere possibility ; not indeed as a present positive transfer operative i presenti, for that can only be of a thing in esse, but asa present contract, to take effect and attach as soon as the thing comes in esse. Thus, for example, the assignment of the head-matter and whale-oil to be caught in a whaling voyage now in progress, will be valid in equity, and will attach to the head-matter and oil when obtained(6). 862. Contingent and future interests and possibilities, coupled with an interest in real estate, may now be granted or assigned at law(c). The statute, however, does not render assignments of contingent interests, or possibilities in chattels, or mere naked possibilities not coupled with an interest, valid at law; the exclusive jurisdiction, therefore, of courts of equity as to such assignments, is untouched by the Act(d). 863. Contingent interests and expectancies may not only be assigned in equity, but they may also be the subject of a contract, such as a contract of sale, when made for a valuable consideration, which courts of equity, after the event has happened, will enforce(e). But until the event has happened, the party contracting to buy has nothing but the contingency, (a) Story, s./1040 ;,Co. Litt. 232 b note; Lord Carteret v. Paschal, 3P.W. 199; Duke -of Chandos v, Talbot, 2 P. W. 603; Wright ». Wright, 1 Ves. Sen. 411. See Ross . Monro, 6 Gr. 481. (0) Story, 1040; Langton v. Horton, 1 Ha. 549, 556. And see Holroyd v. Mar- shall, 6 Jur. y. s. 931; Douglas v. Russell, 4 Sim. 524 ; Watson v. Duke of Wellington, 1R. & M. 602, 605; "Re Ship Warre, 8 Es 269 ne ; Curtis v. Auber, 1J. & W- 526, (c) Con. Stat. T. ©. c. 90, s. 5. (@} Snell, 73. (e) Stokes v. Holden, 1 Keen, 145, 152, 153; Stonev. Lidderdale, 2 Anst. 533; Tun- stall v. Boothby, 10 Sim. 542, 549; Wells-v. Foster, 8 M. & W.149; Langton ». Hor- ‘ton, 1 Ha. 549, 556, 557. ASSIGNMENTS. 865 which is a very different thing from the right immediately to recover and enjoy the property, He has not, strictly speak- ing, a jus ad rem, any more than a jus in re. It is not an inter- est in the property, but a mere right under the contract(a). 864. The same effect takes place if there be an actual assign- ment, for in contemplation of equity, it amounts, not to an assignment of a present interest, but only to a contract to assign, when the interest becomes vested(b). Therefore, a contingent legacy, which is to vest upon scme future event, such as the legatee’s coming of age, may become the subject of an assignment, or a contractrof sale. 865. But, although such assignments are valid in equity, yet. they will not generally be carried into effect in favour of mere volunteers, or even in favour of persons claiming under the consideration of love and affection (such, for instance, as a wife or children), against the heirs and personal representatives of the assignor, but only in favour of persons claiming for a. valuable consideration(c). 866. In certain cases, assignments will not be upheld either in equity or at law, as being against the principles of public. policy. Thus, for example, an officer in the army will not be allowed to pledge or assign his commission by way of mort-. gage(d). So, the full pay, or half-pay of an officer in the army or navy, is not, upon principles of public policy, assignable, either by the party, or by operation of law(e). (a) Story, s. 1040 c ; Stokes v. Holden, 1 Keen, 152, 153. See Yates v. Madden, 16: Jur. 45; Spooner v. Payne, 16 Jur. 367; Carleton v. Leighton, 3 Mer. 667, 672, (6) See Purdew v. Jackson, 1 Russ. 1, 26, 44, 45, 47, 50. (c) Story, s. 1040 da; Wright ». Wright, 1 Ves. Sen. 412; Whitefield v. Faussett, 1 Ves, Sen. 391. See also Collyear v. Countess of Mulgrave; 2 Keen, 81, 98 ; Collinson »v.. Pattrick, 2 Keen, 123, 134 ; Stokes v. Holden, 1 Keen, 145, 152, 153 ; Doungsworth »v. Blair, 1 Keen, 795, 801, 802; Ellis v. Nimmo, Ll. & G. t. Sug. .333; Holloway v. Head-- ington, 8 Sim, 324; Jones v. Roe, 3 T. R. 63, 94; Jefferys v. Jefferys, Cr. & Ph. 138,. 181; Callaghan v, Callaghan, 8 Cl. & Fin. 374. And see Gott v. Gott, 9 Gr. 165. (d) Collyer v. Fallon, T. & R. 459. But see L’Estrange v. L’Estrange, 13 Beav. 281; Webster v. Webster, 31 Beav. 393 ; Somerset v. Cox, 33 Beav. 634 ; Buller v. Plun- kett, 1J. & H. 441. . (€) Davis ». Duke of Marlborough, 1 Sw. 79; McCarthy v. Goold, 1B. & B. 387 ;: Stone v, Lidderdale, 2 Anst. 533; Flarty v. Odlum, 3 T. R, 681; Tunstall v. Boothby,. 10 Sim, 540; Grenfell v. Dean of Windsor, 2 Beav, 544, 549. 366 EQUITY JURISPRUDENCE. 867. The same doctrine has been applied to the compensa- ‘tion, granted to a public officer for the reduction of his emolu- ments, or the abolition of his office, who, by the terms of the grant, might be required to return to the public service(a). In like manner, the profits of a public office would seem, upon gtounds of public policy, not to be assignable(6), even for the benefit of creditors. 868. A different principle, it has been thought, is applicable to pensions, either for life, or during pleasure, which are granted purely for past services, or as mere honorary gratui- ties, without any obligation te perform future services; for it has been said, that as in such a case no future benefit is ex- pected by the state, no public policy or interest is thwarted by allowing an assignment thereof(c). But it may be fairly questioned, whether the public policy, in cases of pensions, is notthereby materially thwarted and overturned. The authori- ties, however, seem to support the right to assign a pension(d). 869. An assignment of a bare right to file a bill in equity for a fraud, committed upon the assignor, will be held void, as contrary to public policy, and as savoring of the character of maintenance(e). So, a mere right of action for a tort is not, for the like reason, assignable. Indeed, it has been laid down as a general rule, that, where an equitable interest is assigned, in order to give the assignee a locus standi in judicio, in a court of equity, the party assigning such right must have some sub- stantial possession, and some capability of personal enjoyment, and not a mere naked right to overset a local instrument, or to maintain a suit(f). (a) Wells v. Foster, 8 M. & W.149. See Spooner v. Payne, 16 Jur. 367. (b) Hill v. Paul, 8 Sl. & Fin. 295, 307; Palmer v. Bate, 2 Brod. & Bing. 673; Davis v. Duke of Marlborough, 1 Sw. 79. But see Arbuthnot v. Norton, 5 Moore, P. C. 219; 10 Jur. 145. (c) Story s. 1040 f; Stone v, Lidderdale, 2 Anst. 533; Wells v. Foster, 8 M. & W. 149; Tunstall v. Boothby, 10 Sim. 549; Hx parte Battine, 4 Barn. & Ad. 690. See Feistel v. King’s College, 10 Beav. 491, (d) Heald v. Hay, 3 Giff. 467; Carew v. Cooper, 4 Giff. 619; 12 W. R. 586; Knight v. Bulkeley, 27 L. J. nv. s. Ch. 592. But see Lloyd v. Cheatham, 3 Giff. 171, and Imp. Act, 47 Geo. 3, c. 25, 8. 4. (e) Prosser v, Edmonds, 1 Y. & C. Ex. 481. (Ff) Story, s. 1040h; Prosser v. Edmonds, 1 Y. & C. Ex. 481, 496, ASSIGNMENTS. | 367 870. The distinction between the operation of assignments at law, and the operation of them in equity, may be illustreted thus: If a remittance be made of a bill to a bailee to collect the amount, and also to pay the proceeds, or a part thereof, to certain enumerated creditors, the mere receipt, and even the collecting of the bill, will not necessarily amount to such an appropriation of the money to the use of the creditors, as that they can maintain a suit at law for the same, if there are cir- cumstances in the case which repel the presumption that the bailee agreed to receive, and did receive, the money for the use of the creditors(a). For, until such assent, express or implied, no action lies at law,any more than it would lie against a debtor without such assent, if a debt were assigned by a creditor, in favour of the assignee(b). 871. So, if a draft or order is drawn on a debtor for a part or the whole of the funds of the drawer in his hands, such a draft does not entitle the holder to maintain a suit at law against the drawee, unless the latter assents to accept or pay the draft(c). 872. But in cases of this sort, the transaction will have a very different operation in equity. Thus, for instance, if A., having a debt due to him from B., should order it to be paid to C., the order would amount in equity to an assignment of the debt, and would be enforced in equity, although the debtor had not assented thereto(d). The same principle would apply to the case of an assignment of a part of such debt(e). In each case, a trust would be created in favour of the equitable (a) Williams v. Everett, 14 East, 582; Yates v. Bell, 3 Barn. & Ald. 643; Grant ». Austen, 3 Price, 58. (b) Story, s. 1042 ; De Bernales v. Fuller, 14 East, 590, note. (ce) Adams v. Claxton, 6 Ves. 231. (d) Ex parte South, 3 Swanst. 393 ; Lett v. Morris, 4 Sim. 607 ; Ex parte Alderson, 1 Mad. 53; Farquhar v. City of Toronto, ' ‘12 Gr. 186; Diplock v. Hammond, 2 Sm. & G. 141 ; 5D. M. & G. 320 ; Buntin v. Georgen, 19 Gr. 167. See Collyer v. Fallon, T. & R. 470, 475, 476; Adams v. Claxton, 6 Ves. 230; Row v. Dawson, 1 Ves. Sen. 331 ; Priddy v. Rose, 3 Meriv. 86, 102; Bell v. London & Northwestern Railway, 15 Beav. 548; Foote v. Matthews, 4 Gr. 366. ( ¢) Smith v. Everett, 4 Bro. C. C. 64; Lett x. Morris, 4 Sim. 607; Watson v. Duke of Wellington, 1 R. & M. 602 ,603. 368 EQUITY JURISPRUDENCE. assignee on the fund, and would constitute an equitable lien upon it(a). 873. Where the question may arise of an absolute appropria- tion of the proceeds of an assignment or remittance, directed to be paid to particular creditors, courts of equity, like courts of law, will not deem the appropriation to the creditors abso- lute, until the creditors have notice thereof, and have assented thereto. For, until that time, the mandate or direction may be revoked, or withdrawn; and any other appropriation made by the consignor or remitter of the proceeds(6). 874. The true test, whether an absolute appropriation is made out, or not, depends upon the point, at whose risk the property is; and, until the creditor has consented, the pro- perty will clearly be at the risk of the assignor or remitter(c). 875. A mere mandate from a principal to his agent, not communicated to a third person, will give him no right or interest in the subject of the mandate. It may he revoked at any time before it is executed, or at least, before any engage- ment is entered into by the mandatory with the third person, to execute it for his benefit(d). 876. In order to constitute an assignment of a debt or other chose in action, in equity, no particular form is necessary. A draft drawn by A. on B., in favour of C., for a valuable con- sideration, amounts to a valid assignment to C. of so much of - the funds of A. in the hands of Bie). So, indorsing and deliv- ering a bond to an assignee for a valuable consideration, amounts to an assignment of the bond. Indeed, any order, writing, or act, which makes an appropriation of a fund, (a) Story, s. 1044. (6) Scott v. Porcher, 3 Meriv. 662. See also Acton v. Woodgate, 2 M. & K. 462; Wallwyn v. Coutts, 3 Meriv. 707, 708; 3 Sim. 14; Gerrard v. Lord Lauderdale, 2 R. & M. 451; Gaskell v. Gaskell, 2 Y. & Jerv. 502; Maber v. Hobbs, 2 Y. & C. 3173, Glegg v. Rees, L. R. 7 Chan. 71. (c) Williams v. Everett, 14 East, 582. (d) Morrell v, Wooten, 16 Beav. 197 ; Scott » Porcher, 3 Meriv. 662 ; 664 ; Acton v. Woodgate, 2M. & K. 492. (e) Row v, Dawson, 1 Ves. Sen. 332; Crowfoot v, Gurney, 9 Bing. 372 ; Smith v. Everett, 4 Bro. C. C. 64. ASSIGNMENTS. 369 amounts to an equitable assignment of that fund(a). An assign- ment of a debt may be by parol, as well as by deed(b). 877. As the assignee is generally entitled to all the remedies of the assignor, so he is generally subject to all the equities between the assignor and his debtor(c). But though this rule generally holds good, it has been observed that length of time and circumstances may make the case of the assignor stronger (d). But in order to perfect his title against the debtor, it is indispensable for the assignee to do all that can be done to perfect the assignment, to do everything towards having pos- session, which the subject admits of, and for this purpose, he should immediately give notice of the assignment to the debtor ; for, otherwise, a priority of right may be obtained by a subsequent assignee, or the debt may be discharged by a payment to the assignor before such notice(e). 878. Courts of equity on principles of public policy, will not give effect to assignments which partake of the nature of champerty or maintenance, or buying of pretended titles(/). Thus, for instance, courts of equity, equally with courts of law, will repudiate any agreement or assignment made be- tween a creditor and athird person, to maintain a suit of the (a) Row v. Dawson, 1 Ves. Sen. 332; Ryall v. Rolles, 1 Ves. 348, 375; Townsend v. Windham, 2 Ves. 6; Ex parte Alderson, 1 Mad. 53; Burn wv. Carvalho, 4 M. & C. 690, 702; Yeates v. Groves, 1 Ves. 280, 281; Ex parte South, 3 Sw. 393. \ (b) Story, s, 1047; Heath v. Hall, 4 Taunt. 326; 8. 0. 2 Rose, 271; Tibbits v. George, 5 Ad. & Ell. 107, 115, 116. (©) Priddy v. Rose, 3 Meriv. 86 ; Coles v. Jones, 2 Vern. 692 ; Turton v. Benson, 1P. W. 496. And see Barnett v. Sheffield, 1 D. M. & G. 371; Atheneum Life Assce. Soc. v. Pooley, 3 D. & J. 294. See Ex parte New Zealand Banking Co. L. R- 3 Chan. 154; Ex parte City Bank, L. R. 3 Chan. 758 ; In re Natal Investment Co. L. B. 3 Chan. 355; Ex parte Asiatic Banking Co., L. R. 2 Chan. 391. And see Dickson v. Swansea, &. R. Co., L. R. 4Q. 44; Graham v. Johnson, L. R. 8 Eq. 36 ; Watson v. Mid-Wales. R. Co., L. R. 2 C. P. 593 ; Higgs v. Northern A. Tea Co., L. R. 4 Ex. 387. (d) Hill », Caillorel, 1 Ves. Sen. 123. (e) Foster v. Blackstone, 1 M. & K. 297; Timson v. Ramsbottom, 2 Keen. 35; Meux v. Bell, 1 Ha. 73; Dearle v. Hall, 3 Russ. 1; Buller ». Plunket, 1 J. & H. 441; Feltham v. Clarke, 1D. & Sm. 307. See Green v. Ingham, L. R. 2 C. P. 525. (f} Strachan v. Brander, 1 Ed. 303, 309; Skapholme v. Hart, Rep. t. Finch, 477 ; Burke v. Green, 2B. & B. 517 ; Wood v. Downes, 18 Ves. 125, 126 ; Wood ». Griffith, 1 Swanst. 55, 56; Wallis x. Duke of Portland, 3 Ves. 493, 502 ; Stone v. Yea, Jac. 426; Reynellv. Sprye, mr & G. 660. 370 EQUITY JURISPRUDENCE. former, so that they may share the profits resulting from the success of the suit(a). So an assignment of a part of the subject of a pending prize suit, toa navy agent, in consideration of his undertaking to indemnify the assignor against the costs and charges of the suit, will be held void in equity ; for it amounts to champerty, it being the unlawful maintenance of a suit, in consideration of a bargain for part of a thing, or some profit out of it/b). 879. A bill to enforce a title acquired by a conveyance of real estate, from a person out of possession, in consideration of money advanced, and to be advanced, on suits for the recovery thereof, will be dismissed, for it amounts to main- | tenance, and is the buying of a pretended title(c). The only exceptions to the general rule are of certain peculiar relations recognized by the law; such as that of father and son(d); or of an heir apparent; of the husband of an heiress(e); or of master and servant(/’) ; and the like. 880. But a party may purchase the whole interest of another in a contract, or security, or other property which is in litiga- tion, provided there be nothing in the contract which savyours of maintenance; that is, provided he does not undertake to pay any costs, or make any advances beyond the mere sup- port of the exclusive interest, which he has so acquired(g). A purchase, however, by an attorney, pendente lite, of the subject matter ofthe suit is invalid(h). (a) Hartley v. Russell, 2S. & S. 244. But see Harrington », Long, 2M. & K. 590. (b) Stevens v. Bagwell, 15 Ves. 156. (c) Burke v. Green, 2 B. & B. 521, 522 ; Marquis of Cholmondeley v. Lord Clinton, 2 J. & W. 135, 136 ; Powell v. Knowler, 2 Atk. 224; Bayly v. Tyrell, 2B. & B. 358. And see Muchall v, Banks, 10 Gr. 25. (d) Burke v. Green, 2B. & B. 521. (e) Moore wv. Usher, 7 Sim. 384. (f) Wallis v. Duke of Portland, 3 Vey. 503: And see Elborough v. Ayres, L. R. 10 Eq. 367 ; Dickinson v. Burrell, 14 W. R. 412; Knight » Bowyer, 2D. & J. 421, 455; Cockell v. Taylor, 15 Beav. 103, 117 ; Hunter v. Daniell, 4 Ha. 420. (g) Story, s. 1050. See Williamsv. Protheroe, 5 Bing. 309 ; 3 VY. & Jerv. 129; Har- rington ». Long, 2M. & K. 592; Knight v. Bowyer, 2D. & J, 455 ; Cockell v. Taylor, 15 Beav. 117. But see Prosser v. Edmonds. 1 Y & C, Ex. 485, 496 ; Hartley v. Rus- sell, 2S. & 8S. 244; Hunter v Daniel, 4 Ha 420. (h) Simpson v. Lamb, 7 EL & Bl. 84; Anderson v. Radcliffe, 6 Jur. n. 8. 578 WILLS AND TESTAMENTS. 371 CHAPTER XXX WILLS AND TESTAMENTS. 881. The Court of Chancery in this Province has not only the same jurisdiction as was possessed by the court in Eng- land as to wills and testaments, but has also “jurisdiction to try the validity of last wills and testaments, whether the same respect real or personal estate, and to pronounce such wills and testaments to be void for fraud and undue influence or otherwise, in the same manner and to the same extent as the court has jurisdiction to try the validity of deeds and other instruments” (a). 882 ‘The principles which govern the court in dealing with instruments impeached on the grounds of fraud or undue in- fluence, have already been treated of. These principles are applicable te the case of wills(d). 883. Although the Court in this Province has such exten- sive jurisdiction in the matter of wills, a few remarks on the jurisdiction which the courts in England exercised as to estab- lishing wills, may be useful. 884. Where a will respected personal estate, it belonged to the ecclesiastical courts; and where it respected real estate, it belonged to the courts of common law. But, although this was regularly true, yet, whenever a will came before a court of equity, as an incident in a cause, they necessarily enter- tained jurisdiction to some extent over the subject; and if the validity of the will was admitted by the parties, or if it was otherwise established by the proper modes of proof, they acted upon it to the fullest extent(c). And if either of the parties should afterwards bring a new suit, to contest the determina- tion of the validity: of the will so proved, the court, which had (2) Con. Stat. U. C. c. 12, 8. 28, (b) And see Martin v. Martin, 12 Gr. 500; Donaldson v. Donaldson, 12 Gr. 431, where undue influence in connection with wills is discussed. c) See Morrison v. Arnold, 19 Ves. 670. 372 EQUITY JURISPRUDENCE. ‘ so determined it, would certainly grant a perpetual injunc- tion(a). 885. The usual manner in which courts of equity proceed- ed in such cases was, that if the parties admitted the due exe- cution and validity of the will, it was deemed ipso facto, suffi- ciently proved. Ifthe will was of personal estate, and a pro- bate thereof was produced from the proper ecclesiastical court, that was ordinarily deemed sufficient. ‘But if the parties were dissatisfied with the probate, and contested the validity of the will, the court of equity,in which the controversy was de- pending, suspended the determination of the cause, in order to enable the parties to try its validity before the proper eccle- siastical tribunal(b), and then governed itself by the result(c). If the will was of real estate, and its validity was contested in the cause, the court directed its validity to be ascertained, either by directing an issue to be tried, or an action of eject- ment to be brought at law; and governed its own-judgment by the final result(d). If the will was established in either case, a perpetual injunction might be decreed(e). 886. Often the primary, although not the sole, object of a suit in equity, brought by devisees and others, was to estab- lish the validity of a will of real estate; and thereupon to obtain a perpetual injunction against the heir-at-law, and others, to restrain them from contesting its validity in fu- ture(f). In such cases, the jurisdiction exercised by courts of equity was somewhat analogous to that exercised in cases of bills of peace ; and was founded upon the like considerations in order to suppress interminable litigation, and to give secu- rity and repose to titles(g). In every case of this sort, courts (a) Sheffield v. Dechess of Buckinghamshire, 1 Atk. 630. (b) See Allen v. McPherson, 1 H. L, 191. (c) Sheffield v. Duchess of Buckinghamshire, 1 Atk. 630. (2) Att.-Gen, v. Turner, Ambl. 587. e) Leighton v. Leighton, 1 P. W. 671. (f) Bootie v. Blundell, 19 Ves. 494, 509; Leighton v. Leighton, 1 P. W. 671; Colton v. Wilson, 3 P. W. 192; Devonsher v. Newenham, 2S. & L. 199; Harris ». Cotterell, 3 Mer. 678, 679; Morrison v. Arnold, 19 Ves, 670. (g) See Jones v. Jones, 3 Mer. 161, 170; Bates v. Graves, 2 Ves. 288. WILLS AND, TESTAMENTS. 373 of equity would, unless the heir waived it, direet an issue of devisavit vel non, to ascertain the validity of the will(a). 887. The court, however, did not feel itself bound by a single verdict either way, if it was not entirely satisfactory, but would direct new trials, until there was no longer any reasonable ground for doubt(b). But a new trial was not di- rected unless there was substantial ground for believing that, on a second trial, other evidence of a weighty nature bearing against the existing conclusion could and would be produced, which was not heard before(c). The general rule established in courts of equity was, that upon every such issue and trial at law, all the witnesses to the will should be examined, if practicable, unless the heir should waive the proof(d). This rule was not absolutely inflexible, but yielded to peculiar cir- cumstances(e). 888. When, by these means, upon a verdict, the validity of the will was fully established, the court, by its decree, de- clared it to be well proved, and that it ought to be established, and granted a perpetual injunction( /). 889. If, on the other hand, the heir did not dispute the will, but acted under it, merely denying that certain lands passed ‘under the description in the will, a court of equity had full jurisdiction to determine this question, without granting an issue of devisavit vel non, or it might grant such issue at its discretion(g). (a) Pemberton v. Pemberton, 11 Ves. 53; 13 Ves. 290; Dawson v. Chater, 9 Mod. 90; Levy v. Levy, 3 Mad. 245; Cooke v. Cholmondeley, 2 Mac. & G.18; Cooke v. Turner, 15 Sim. 611; Bootle v. Blundell, 19 Ves. 501, 502. And see Grove v. Young, 15 Jur. 810. (b) Att.-Gen. v. Turner, Ambl. 587; Pemberton v. Pemberton, 11 Ves. 50, 52; 8.0. 13 Ves. 290; Bootle ». Blundell, 19 Ves. 499; Fowkes v, Chadd, 2 Dick. 576, (c) Waters v. Waters, 2D. & Sm. 591. And see McGregor v. Topham, 3 H. L. 132 ; Hitch v. Wells, 10 Beav. 84. (d) Jeremy on Eq. Jurisd. B. 3, ch. 1, s. 2, p. 297, 298; Bootle v. Blundell, 19 Ves. 499, 502, 505, 509; Ogle v. Cooke, 1 Ves. Sen. 177; Tatham v. Wright, 2R. & M. 1. (e) See Tatham v. Wright, 2 R. & M. 1. (f) Jeremy on Eq. Jurisd. B. 3, ch. 1, 5, 2, p 297, 298. (g) Rickets v. Turquand, 1 H. L. 472. 874 EQUITY JURISPRUDENCE. 890: Courts of equity, in cases of this sort, where the origi- nal will was lodged in the custody of the Register of the Ec- clesiastical Court, and it was necessary to produce it before witnesses resident abroad, whose testimony was to be taken under a commission to prove its due execution, would direct the original will to be delivered out by such officer to a fit person, to be named by the party in interest ; such party first giving security, to be approved by the Judge of the Ecclesi- astical Court, to return the same within a specified time. If there was any dispute about the security for the safe custody and return of the will, it was referred to a master to settle and adjust the same(a). If the commission was to be executed within the realm, and the witnesses were therein, the court directed the original will to be brought into its own registry, to lie there, until the court had done with it(b); or to be delivered out on giving security(c). 891. Express trusts of real and personal property created by last wills and testaments, are various in their nature and objects. They are usually created for the security of the rights and interests of infants, of femes covert, of children, and of other relations ; or for the payment of debts, legacies, and por- tions ; or for the sale or purchase of real estate for the benefit of heirs, or others having claims upon the testator ; or for ob- jects of general or special charity. Many trusts, also, arise under wills, by construction and implication of law. But in whatever way, or for whatever purpose, or in whatever form, trusts arise under wills, they are exclusively within the juris- diction of courts of equity(d). 892. Trusts are often created by will, without the designa- tion of any trustee, or leaving it doubtful upon the terms of the will, who is the proper party to execute them. In such cases, the benefit of the interposition of equity becomes appa- rent, as itis a settled principle in courts of equity, that a trust (a) Frederick v. Aynscombe, 1 Atk. 627. (6) Frederick » Aynscombe, 1 Atk. 627, 628, (c) Morse v. Roach, 2 Str. 961. (@) Story, s. 1058 ; Lewin on Trusts, 16. WILLS AND TESTAMENTS. 375 shall never fail for the want of a proper trustee, and if no other is designated, courts of equity will take upon them- selves the due execution of the trust. i 893. Thus, also, if a testator should order his real estate, or any part thereof, to be sold for the payment of his debts, with- out saying who shall sell, a clear trust would be created, but a court of law will not take cognizance of the trust. A court of equity will not, however, hesitate to declare who is the proper party to execute the trust, or if no one is designated, it will proceed to execute the trust by its own authority, and decree a sale of the land. 894. In the case of a trust for the payment of debts, if ex- ecutors are named in the will, they will be deemed, by impli- cation, to be the proper parties to sell, because in equity, when lands are directed to be sold, they are treated as money, and, as the executors, are liable to pay the debts; and, if the lands were money, as they would be the proper parties to receive it for that purpose, courts of equity will hold it to be the intent of the testator, that the parties who are to receive and finally to execute the trust are the proper parties to sell for the pur- pose(a). 895. In case of a will giving power to trustees to sell an estate upon some specified trust, if they should all refuse to exe- cute the trust, or should all die before executing it, at law, the trustees, if living, could not be compelled to execute the trust, and by their death the power would be entirely extinguished (b.) But a court of equity would compel the trustees, if living, to execute the power, because coupled with a trust, although it would not compel them to execute a mere naked power, not coupled with a trust(c). Ifthe trustees should decline, or tefuse to act at all, the court would appoint other trustees, if (a) Wood v. White, 4 M.& C. 460, 481; Lockton v. Lockton, 1 Ch. Cas. 180 ; Car- ville v. Carville, 2 Ch. 301; Blatch v. Wilder, 1 Atk. 420; Forbes v. Peacock, 11 Sim. 152, 160. (6) Co. Litt. 113 @ note (2). + (© Sugden on Powers, 588 ; Tollett v. Tollett, 2 P. W. 490. 376 EQUITY JURISPRUDENCE. necessary, to carry the trust into effect(a). If the trustees should die, without executing the power, it would hold the trust to survive, and would decree its due execution by a sale of the estate for the specified trust(b). It is upon the same ground that, if a power of appointment is given by will toa party to distribute property among certain classes of persons, as among relations of the testator, the power is treated asa trust, and if the party dies without executing it, a court of equity will distribute the property among the next of kin(e). 896. Where a testator directed his trustees to sell his real estate, and instead of selling they mortgaged and retained the estate, it was held that they thereby committed a breach of trust; and the estate having become depreciated, they were held liable for the loss. It was also held, that as against a mortgagee with notice, the mortgage was void, but that he was entitled to stand as a creditor on the produce of the estate(d). 897. When, and under what circumstances, a power of ap- pointment will be construed as a trust or not, is a matter of some nicety and difficulty. In general, where, in a will or other instrument, the donor of the power has a general inten- tion in favour of a class, and a particular, intention in favour of individuals of that class, to be selected by the donee of the power, and the particular intention fails from that selection -not being made by the donee of the power, the court will treat it as a trust, and carry into effect the general intention in favour of the class(e). Thus, where the testator bequeathed a. certain leasehold estate to A. upon trust, subject to certain (a) Story, s. 1061. (6) Brown v. Higgs, 8 Ves. 570, 574; Richardson v. Chapman, 7 Bro. P. C. 318. (ce) Davy v. Hooper, 2 Vern. 665 ; Harding v. Glyn, 1 Atk. 469; Maddison ». An- drew, 1 Ves, Sen. 57; Wittsv. Boddington, 3 Bro. C. C. 95; Cole v, Wade, 16 Ves. 27 ; Birch v. Wade, 3 V.*& B. 198; Brown v. Higgs, 4 Ves. 708; 5 Ves, 495; 8 Ves. 561, 569, 570; Stubbs v, Sargon, 2 Keen, 255. (a Devaynes v. Robinson, 24 Beav. 86. But see Ont. Stat. 36 Vic. c. 20, s. 33, as to mortgaging lands devised to trustees, charged with the payment of debts, legacies, or other specific sums of money, where no express provision is made for raising such debts, legacies, or sums of money. (e) Burrough v. Philcox, 5 M. & C. 73, 92. WILLS AND TESTAMENTS. 377 charges, to employ the remainder of the rent to such children of B. as A. should think most deserving, and that will make: the best use of it, or to the children of his nephew C., if any such there are or shall be; and A. died in the testator’s life- time, the bequest to the children was held to be a trust in favour of all the children of B. and C(a). 898. And where a testator directed certain stocks and. real estate to remain unalienated until certain contingencies were completed; and then, after giving life-estates to his two children in such stocks and real estates, with remainder to their issue, declared, that in case his two children should die without leaving lawful issue, the same should be disposed of by the survivor of his children, by will, among his nephews: and nieces, or their children, or either of them, or to as many of them as his surviving child should think proper; it was held to be a trust created in favour of the testator’s nephews. and nieces, and their children, subject to a power of selection and distribution by the surviving child(b). So, where the testator devised to B. in tail, and for want of issue of her body, he empowered and authorized her to settle and dispose of the estate to such persons as she thought fit by her will, “ confid- ing” in her not to alienate or transfer the estate from his “nearest family,” it was held to be a power coupled with an interest in fayour of the heir, who was held to be the nearest family in the sense of the will(c). 899. In regard to powers, too, some subtle distinctions have been taken at law, which often require the interposition of courts of equity. Thus it is a general rule of law that a mere naked power, given to two, cannot be executed by one, or given to three, cannot be executed by two, although the other be dead, for, in each case, it is held to be a personal trust in all the persons, unless some other language is used to the (a) Story, s. 1061 b ; Brown v. Higgs, 8 Ves. 574; 4-Ves. 708; 5 Ves. 495. @) Burrough v. Philcox, 5 M. & C. 73,92. See Prendergast v. Prendergast, 3 H L. 218, 5 (¢) Griffiths v. Evan, 5 Beav. 241. 3878 EQUITY JURISPRUDENCE. contrary. But, if the testator should give authority to his executors (eo nomine) to sell, and should make A. and B. his executors, then, if one should die, the survivor (it has been -said) could sell(a). The distinction is nice, but it proceeds upon the ground, that in the latter case, the power is given to the executors virtute officit, and, in the former case, it is merely personal to the parties named. 900. Where the power is coupled with an interest, the con- struction might be different, even at law. But, at all events, if the power is coupled with a trust, courts of equity will insist upon its execution(0). 901. It is a general rule, that, in the execution of a power, the donee must clearly show that he means to execute it, either by a reference to the power or to the subject matter of it, for, if he leaves it uncertain whether the act is done in exe- cution of the power or not, it will not be construed to be an execution of the power(c). 902. Upon the construction of wills also, many difficult questions arise, as to the nature and extent of powers, and the manner in which they are to be executed. Thus, suppose a will should contain a direction or power to raise money out of the rents and profits of an estate, to pay debts or portions, &c., a question might arise, whether such a power would authorize a sale or mortgage of the estate under any circum- stances; as, for instance, if it were otherwise impracticable, without the most serious delays and inconveniences, to satisfy the purposes of the trust. The old cases generally inclined to hold, that the power should be restricted to the mere appli- cation of the annual rents and profits(d). The more recent (a) Co. Litt. 112 6, 118 a, and see Co. Litt. 181 b. (5) Co. Litt. 113 a, Hargrave’s note (2); Lane v. Debenham, 17 Jur. 1005. (c) Story, s. 1062a; Owens v. Dickenson, Cr. & Ph. 53. And see Langham » Nenny, 3 Ves. 467; Bennett v: Aburrow, 8 Ves, 609, 616 ; Doe v. Nowell v. Roake, 6 Bing. 475, in the House of Lords, reversing the decision of the Common Pleas in the same case, 2 Bing. 497, and affirming that of the King’s Bench, 5 B. & C. 720. (d) Ivy v. Gilbert, 2 P. W. 13, 19; Trafford v. Ashton 1 P. W. 418; Evelyn». Evelyn, 2P. W. 666, 672; Mills », Banks, 3 P. W. 1; Okeden v. Okeden, 1 Atk, 550. , WILLS AND TESTAMENTS. 379 cases hold to a more liberal exposition of the power, so as to include in it, if necessary for the purposes of the trust, a power to sell or to mortgage the estate(a). 903. According to the modern doctrine, where a testator directs a gross sum to be raised out of the rents and profits of an estate, at a fixed time, or for a definite purpose or object, which must be accomplished within a short period of time, or which cannot be delayed beyond a reasonable time, it is but fair to presume, that he intends that the gross sum shall at all events be raised, so that the end may be punctually accomplished ; and that he acts under the impression, that it may be so obtained by a due application of the rents and pro- fits within the intermediate period. But the rents and profits are but the means, and the question, therefore, may properly be put, whether the means, if totally inadequate to accomplish the end, are to control the end, or are to yield to it(b). 904. Upon the like principles, where a testator by his will charged his real estates with the payment of his debts gener- ally, and then devised the same estates to trustees in trust for other persons, and a question arose, in what manner the charge for the payment of debts was to be satisfied ; and whether the trustees had authority to sell or mortgage the estates, or a part thereof, for the payment of the debts; it was held, by the court, that the trustees had power to sell or to mort- gage the real estates for the payment of the debts, as they should think it best for the interest of all concerned in the real estates(c). 905. Embarrassing questions also often arise as to the per- sons entitled to take under words of general descriptions (a) Story, s. 1063 ; Green v./Belchier, 1 Atk. 505 ; Baines v. Dixon, 1 Ves. Sen. 42; Countess of Shrewsbury w. Earl of Shrewsbury, 1 Ves. 233, 234 ; 3 Bro. C. C. 120; Trafford v. Ashton, 1 P. W. 415, 419; Allan v. Backhouse, 2 V. & B. 65, 76; Bootle v. . Blundell, 1 Mer. 193, 233. And see Ont. Stat. 36 Vic. c. 20, ». 33. (8) Story, s. 1064 a. (©) Story, s. 1064 b ; Ball v. Harris, 4M. & C. 264. 380 EQUITY JURISPRUDENCE. (a); as, for example, under bequests to “children,” to “ grand- children,” to “younger children,” to “issue,” to “heirs,” to “next of kin,” to ‘“ nephews and nieces,” to “first and second cousins,” to “ relations,” to “ poor relations,” to the “ family,” to “personal representatives,” and to “servants.” For these words have not a uniform fixed sense and meaning in all cases, but admit of a variety of interpretations, according to the context of the will, the circumstances in which the testa- tor is placed, the state of his family, the character and reputed connection of the persons who may be presumed to be the ob- jects of his bounty, and yet who, only ina very lax and general sense, can be said to fall within the descriptive words(b). 906. The word “child” or “children” is sometimes con- strued to mean “issue ;” and “issue” to mean “ children”(c); “ heirs” is sometimes construed to mean “ children”(d) ; “next of kin” is sometimes construed to mean next of blood, or nearest of blood, and sometimes only those who are entitled to take under the statute of distributions, and sometimes to include other persons(e) ; “ relations” is sometimes construed to mean the “next of kin,” in the strict sense of the words, (a) Examples of the interpretation of various words referred to in this and the fol- lowing sections will be found in Hall v. Luckup, 4 Sim. 5 ; Dalzell v. Welch, 2Sim. 319; Horridge v. Ferguson, Jac. 583 ; Lees v. Mosley, 1 Y. & C. Ex. 589 ; Earl of Or- ford v. Churchill, 3 V. & B. 59; Lady Lincoln v. Pelham, 10 Ves. 166 ; Bowles +. Bowles, 10 Ves. 177 ; Gittings vu. McDermott, 2M. & K.69; Mounsey »v. Blamire, Russ. 384; Leigh v. Norbury, 13 Ves. 340; Sibley v. Perry, 7 Ves. 522 ; Grant ». Lynam, 4 Russ. 292 ; Brandon v. Brandon, 3Sw. 319; Smith ». Campbell. 19 Ves. 400 ; Mahon v. Savage, 1S. & L. 111; Pope ». Whitcombe, 3 Mer. 689; Cruwys ». Colman, 9 Ves. 319 ; Worseley v. Jonson, 3 Atk. 761; Elmsley v. Young, 2 M. & K. 82; Palin v. Hills, 1M. & K. 470; Price v. Strange, 6 Mad. 159; Piggott v. Green, 6 Sim. 72; Barnes v. Patch, 8 Ves. 604; Crossly v. Clare, Ambl. 397; Chambers v. Brailsford, 18 Ves. 368 ; 19 Ves.652 ; Mayott v. Mayott, 2 Bro. C. C. 125 ; Charge v, Goodyer, 3 Russ. 140 ; Silcox v. Bell, 1S. & S. 301; Chilcot v. Bromley, 12 Ves. 114 ; Gill v. Shelley, 2 R. & M. 336; Langston v. Langston, 8 Bligh, n. R. 167 ; Clapton ». Bulmer, 10 Sim. 426.; Head v. Randall, 2Y. & OC. 231; Liley v Hey, 1 Hare, 580, 582; Wright v. Atkyns, T. & R. 156; Wood v. Wood, 3 Ha. 65. In Mayor of Ha- milton v. Hodsdon, 11 Jur. 193, before the Privy Council, a mistake in the report of Barnes v. Patch is noticed. (b) Story, vy. 1065 b. (c) See Pope ». Pope, 21 L. J. x. 8. Ch. 276, (d) Head v. Randall, 2 Y. & C. 231; Minter v. Wraith, 13 Sim. 52, And see Re Stevens’ Trusts, L. R. 15 Eq. 110. (=) Withy v. Mangles, 10 Cl. & Fin. 213 ; Cholmondeley v. Ashburton, 6 Beav. 86. WILLS AND TESTAMENTS. 381 and sometimes to include persons more remote in consan- guinity(a) ; “personal representatives” is sometimes construed to mean the “administrators or executors,” and sometimes to mean the “next of kin ”(b); “executors” sometimes includes the persons named as executors in the will, and sometimes only such as take upon themselves that office. Among “ne- phews and nieces” are not ordinarily included “ great- nephews and great-nieces’(c), nor will the expression “ grand- nephews and nieces” include the children of grand-nephews and nieces(d). 907. The word “family” admits of a still greater variety of applications. It may mean a man’s household, consisting of himself, his wife, children, and servants; it may mean his wife and children, or his children, excluding his wife; or, in the absence of wife and children, it may mean his brothers and sisters, or next of kin ; or it may mean the genealogical stock from which he may have sprung(e). 908. A bequest to “cousins” simpliciter, in the absence of any thing to explain the meaning of the testator, includes first cousins only(f). A similar construction was given to the word “niece”(g). And in order to enable illegitimate children to take under a bequest to “ daughters,” it would seem to be requisite to show that there were no other persons who could answer the description, and that their reputed character did answer it, and that this was understood by the testator, which last fact will not be inferred(h). A gift to “my other nephews (a) And see Hibbert v. Hibbert, L. R. 15 Eq. 372. (o) Daniel v. Dudley, 1 Ph. 1, 6. And see Holloway v. Clarkson, 2 Hare, 521, 523 ; Bulmer v, Jay, 4 Sim. 48; 3M & K. 197; Ripley v. Waterworth, 7 Ves. 425 ; Well- man vs Bowring, 18. & S. 24; 2 Russ. 374 ; 3 Sim. 328 ; Price v. Strange, 6 Mad. 159 ; Palin v, Hill, 1 M. & K. 470; Hames v. Hames, 2 Keen. 646 ; Grafftey v. Humpage, 1 Beav. 46 ; Mackenzie v. Mackenzie, 15 Jur. 1091 ; Long v. Watkinson, 16 Jur. 235 ; Booth v. Vicars, 1 Coll. 6. (c) Falkner v. Butler, Ambl. 514 ; Shelley v. Bryer, Jac. 207. (d) Waring v. Lee, 8 Beav. 247. Butsee Jamesv. Smith, 14 Sim, 214. (© Story s. 1065 b ; Blackwell v. Bull, 1 Keen. 176, 181. (f) Stoddart v. Nelson, 6 D. M. & G. 68. (9) Crook v. Whitley, 7 D. M. & G. 490. See also Pride v. Fooks, 3D. & J. 252 ; Jenkins v. Lord Clinton, 26 Beav. 108 ; Smith v. Lidiard, 3K. & J. 252. (h) Re Herbert, 6 Jur. N..8. 1027. And see Allen v. Webster, 6 Jur. N. 8. 574 ; Med- werth v. Pope, 5 Jur. N. 8. 996 ; Edmunds v. Fessey, 7 Jur. N. 8. 282, 382 EQUITY JURISPRUDENCE. and nieces on both sides,” was held to include the children of the brothers and sisters of the testator’s wife(a). 909. Difficulties may also arise, where there is a bequest or devise to the next. of kin, whether they are to take per stirpes or per capita(b). So, also, it may be matter of question, who are to be deemed the next of kin, under bequests of per- sonal property ; whether the next of kin under the civil law, or the next of kin under the statute of distributions ; for they may not be identical(c). In all these cases, the true meaning in which the testator employed the words, must be ascertained by considering the circumstances in which he is placed, the objects he had in view, and the context of the will(d). Where the bequest respects personal or trust property, it naturally, nay, necessarily, falls within the jurisdiction of courts of equity to establish the proper interpretation of such descriptive words in the particular will ; and neither executors, nor ad- ministrators, nor trustees, can safely act in such cases, until a proper bill has been brought, to ascertain the true nature and character of such bequests or trusts, and to obtain a declara- tion, from the court, of the persons entitled to claim under the general descriptive words(e). 910. Equally embarrassing questions sometimes arise in cases of residuary legatees, whether they are to take all the personal estate which the testator has not absolutely and effec- tually disposed of, or, it is to be treated as intestate property undisposed of. In the cases of lapsed legacies, the doctrine is clearly settled, that they belong to the residuary legatees, be- cause their interest is abridged only to the extent of the par- ticular effective legacies. And the same rule seems properly to apply to cases where the testator intended that a legatee should be benefited by a particular bequest, but the legatee (a) Frogley v. Phillips, 6-Jur. n.s, 641. And see Sherratt v. Mountford, L. R. 15 Eq, 305; 21 W. R. 818, (6) Mattison v, Tanfield, 3 Beav. 181; Paine v. Wagner, 12 Sim. 184, (c) See on this point, 2 Jarman on Wills, p. 37; Elmsley v. Young, 2 M. & K. 786 Smith v. Campbell, 19 Ves. 403; Withy v. Mangles, 4 Beav. 366; 8 Jur. 69. (d) Blackwell v. Bull, 1 Keen, 176, 181; Odell v, Crone, 3 Dow, 61. (e) Story, s. 1065 d. WILLS AND TESTAMENTS. 383° cannot be ascertained, or the legacy is too vague, and void for uncertainty ; for, in such a case, the mere intention that the residuary legatees should not take the whole, will not defeat their right to such a legacy(a). 911. In regard also to legacies and bequests of chattels and other personal property, courts of equity treat all such cases. as matters of trust, and the executor as a trustee for the benefit of the legatees, and, as to the undisposed residue of such pro- perty, as atrustee for the next of kin(b). The rules, there-- fore, adopted by courts of equity, in expounding the words of wills in regard to bequests of personal property, are not pre- cisely the same as those adopted by courts of law in inter- preting the same words as to real estate. For courts of equity,, having, in a great measure, succeeded to’ the jurisdiction of the ecclesiastical courts over these matters, and these courts,. in the interpretation of legacies, being governed by the rules: of the civil law, the courts of equity have followed them in such interpretation, rather than the rules of the common law where they differ(c). 912. Cases may easily be put to show how widely courts of equity sometimes differ from courts of law in their construc- tion of the same words in a will as applied to real estate, and as applied to personal estate, giving effect to the presumed intent of the testator to an enlarged and liberal extent, not recognized at law. Thus, if freehold and leasehold estates are devised to a person and the heirs of his body, with a limi- tation over, in case he leaves no such heirs, the words will, or at least may, be construed to mean, a dying without leaving such heirs indefinitely, as to the freehold estates, and a dying’ without leaving such heirs living at the time of his death as to the leasehold estates ; the effect of which will be very different + (a) The Mayor of Gloucester v. Wood, 3 Ha. 131. (6) 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1,8. 2, note (2, 1; id. B. 2, ch. 5, s. 3, and note (); 1 Mad. Pr. Ch. 466, 467. (c) Story, s. 1067 ; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, 8, 4, and notes (h), (é); iby 5, and note (2); ib. s. 6, and note (0) ; ib. s.7, and notes,(q), (7), (8); ib. 8. 9, and note (y)5. ib. s, 11, and note (a); Crooke v. De Vandes, 9 Ves. 197, 384 EQUITY JURISPRUDENCE. in the two different species of estates, as to the title of the devisee, and the validity of the limitation over(a). 913. Where ihe remainder over is upon an indefinite failure __ -of such heirs, the first devisee takes an estate tail with a vested remainder over upon the determination of that estate. Now, such a remainder over, after an estate tail, in freehold estates, is valid in point of law, and awaits the regular determination of the prior estate. But in leasehold estates, it is void, as being too remote, and the tenant in tail takes the whole estate; -~whereas, if the devise is construed to be adying without issue living at the decease of the first devisee, then, in each case, the legal effect is thesame. The devise over will be treated -as a good contingent remainder to take effect, if at all, at the ‘death of the first devisee. The reason of this difference is, ‘that, in chattels, whether personal or real, there can be no good remainder limited over after an estate tail, as the tenant -in tail is deemed to be the absolute owner. But in freeholds, there may be a good remainder after an estate tail by the ‘statute de donis; and the tenant in tail is deemed to be only the qualified owner(b). 914. In the interpretation of the language of wills, also -courts of equity have gone great lengths, by creating implied -or constructive trusts from mere recommendatory and preca- tory words of the testator(c); but the tendency of the later (a) See Forth v. Chapman, 1 P. W. 664; Crooke v. De Vandes, 9 Ves. 197, 203, 204, (s) Story, s. 1067 a; Forth v. Chapman, 1 P. W. 664; Crooke v. De Vandes, 9 Ves. 197, 203, 204; Porter v. Bradley, 3 T. R. 143; Pells v. Brown, Cro. Jac. 590. Andsee Ex parte Wynch, 5 D. M. & G. 188, where this subject is discussed by Lord-Chancel- lor Cranworth and the Lords Justices; and also Knight v. Ellis, 2 Bro. C. C. 570; Lyon v, Mitchell, 1 Mad. 486; Tothill v. Pitt, 1 Mad. 487; 7 Bro. P. C. 453; Elton v. Eason, 19 Ves. 73; Britton v. Twining, 3 Mer. 176; Chandless v. Price, 3 Ves. 99 ; Att.-Gen. v. Bright, 2 Keen, 57; Tate v, Clarke, 1 Beav. 100; Jordan v. Lowe, 6 Beav. 350; Bird v. Webster, 1 Drew. 338; Aubin v. Daly, 4 B. & Ald. 59; Oates v. Cooke, 3 Burr. 1684; Trent v. Hanning, 1 Bos. & Pull. n. zn. 116; Doe v, Woodhouse, 4 T. R. - 89; Mogg v. Mogg, 1 Mer. 654; Dunk v. Fenner, 2. R. & M. 557; Hockley v. Maw- ‘bey, 1 Ves. 143; Darley », Martin, 17 Jur. 1125; Clare v. Clare, Ca. t. Talb. 21; Warman v. Seaman, (a. t. Finch, 279; Stafford v. Buckley, 2 Ves. Sen. 170; Goldney v. Crabb, 19 Beav. 338; Parker v. Clarke, 6 D. M. & G. 104; Hedges v. Harper, 3 D. -& J. 129 ; Stewart v. Jones, 3D. & J. 532; Re Andrew’s Will, 6 Jur. n. 8, D4 (c) Story, s. 1068. WILLS AND TESTAMENTS. 385 decisions is against construing precatory or recommendatory words as trusts(a). 915. No particular form of expression is necessary to the creation of a trust, if, on the whole, it can be gathered that a trust was intended. It has been laid down, as a general rule, that when property is given absolutely to any person, and the same person is, by the giver who has power to command, recommended, or entreated, or wished, to dispose of that pro- perty in favour of another, the recommendation, entreaty, or wish, shall be held to create a trust: (1) If the words are so used, that on the whole, they ought to be construed as impera- tive ; (2) If the subject of the recommendation or wish be cer- tain ; (8) If the objects or persons intended to have the benefit of the recommendation or wish be also certain(b). These three requisites must co-exist(c). 916. The words of recommendation used must be such that, upon the whole, they ought to be construed as imperative. The application of this rule is often attended with considera- ble difficulty. No technical words are necessary, but the tes- tator’s intent is to take place, and his words, “ willing and desiring,” that the person upon whom he has conferred pro- perty should make a disposition of it in favour of certain objects, will be construed as imperative, and amount to a trust (d), as also, the words and phrases—“ wish and request” (e) “have fullest confidence”(/), “heartily beseech”(g), “ well know”(h), “of course he will give”(z), and the like. (a) See Sale v. Moore, 1 Sim. 534. (b) Knight v. Knight, 3 Beav. 172; 11 Cl. & Fin. 513. (c) See Briggs v. Penny, 3 Mac. & G. 554; Moriarty v. Martin, 3 Ir. Ch. 31. (d) Eeles v. England, 2 Vern. 466. And see Henry v. Simpson, 19 Gr. 526. (e) Foley v. Parry, 5 Sim. 138; 2M. & K.138; Godfrey v. Godfrey, 11 W. RB. 554 ; Liddard v. Liddard, 28 Beav, 266. (f) Wright v. Atkyns, 17 Ves, 255 ; 19 Ves. 299; Palmer v. Simmonds, 2 Drew, 221; Gulby v. Cregoe, 24 Beav. 185; Shovelton v. Shovelton, 32 Beav. 143. (9) Meredith v, Heneage, 1 Sim. 553. (hk) Bardswell vy. Bardswell, 9 Sim. 323; Briggs v. Penny, 3 Mac. & G. 46, 554, (i) Robinson v. Smith, 6 Mad. 194. For decisions un many other similar words, see “Last wish” Hinxman v. Poynder, 5 Sim. 546 ; ‘‘dying request” Pierson v. Garnet, 2 Bro. C. C, 38, 226; ee Tibbits 7. Tibbets, 19 Ves. 656 ; Horwood ». 3886 EQUITY JURISPRUDENCE. 917. The subject matter of the recommendation or wish, must be certain. Thus, where a testator, who, having devised real property to his wife, to be sold for payment of his debts and legacies, in aid of his personal estate, declared that he did not doubt but that his wife would be kind to his children, it was insisted that this constituted a trust of the personal estate ; but the court was of opinion that these words gave a right to no child in particular, or a right to any particular part of the estate, and that the clause was void for uncertainty (a). So, in an absolute devise to a person, the words “ well knowing that he will remember”(d), certain objects, or, “do justice to,” or “deal justly and properly to or by them”(c), have not been construed as a trust, because no particular pro- perty is pointed out as the object of it(d). And where there is an absolute gift of property to a person, and a recommenda- tion to give to a certain object “what shall be left” at his death, or “ what he shall die seised or. possessed of” (e), or what “he may have saved” out of an estate given for life(/), the subject will be considered as uncertain(q). 918. The objects or persons intended to have the benefit of the recommendation or wish must be certain. Thus, where a testator gave real and personal estates to his wife, in full con- West, 15. & S. 387; Malim v. Keighley, 2 Ves. 333, 529; Ford v. Fowler, 3 Beav. 146; ‘‘ entreat,” Prevost v. Clarke, 2 Mad. 458; ‘‘not doubting,” Parsons v. Baker, 18 Ves. 476 ; Taylor v. George, 2 V. & B. 378; ‘‘ under the firm conviction,” Barnes v. Grant, 26 L. J. w. 8. Ch. 92; ‘‘ authorise and empower,” Brown v. Higgs, 4 Ves. 708 ; 5 Ves. 495 ; 8 Ves. 561; 18 Ves. 192; ‘‘hope,” Harland v. Trigg, 1 Bro. C. C. 142; Paul v. Compton, 8 Ves. 375. (a) Buggens v. Yates, 9 Mod. 122. And see Sale v. Moore, 1 Sim. 534; Curtis v. Ripon, 5 Mad. 434; Dawson v. Clark, 15 Ves. 409; Howarth v. Dewell, 6 Jur. nN. 8. 1360. (b) Bardswell v. Bardswell, 9 Sim. 319. (c) LeMaitre v. Bannister, Finch, Prec. 200 n; Pope v. Pope, 10 Sim. 1. (ad) And see Flint v. Hughes, 6 Beav. 342; Macnab v. Whitbread, 17 Beav. 299; Winch v. Brutton, 14 Sim. 379; Reeves v. Baker, 18 Beav. 372; Fox v. Fox, 27 Beav.: 301. (e) Wynne v. Hawkins, 1 Bro. C. C. 179; Sprange v. Barnard, 2 Bro. C. C. 585; Bland v. Bland, 2 Cox, 349; Pushman ». Filliter, 3 Ves. 7; Wilson v. Major, 11 Ves. 205; Lechmere v. Lavie, 2M. & K. 197; Pope v. Pope, 10 Sim. 1; Green v. Marsden, 1 Brew. 646, 651. (f ) Cowman v. Harrison, 10 Hare, 234. (g) See and consider Constable v. Bull, 3 D. & Sm. 411. WILLS AND TESTAMENTS, 387 fidence she would distinguish the heirs of his late father by devising the whole of his estate, together and entire, to such of his father’s heirs as she might think best deserved her pre- ference, the objects were thought not certain, whether the testator had pointed out the heirs at law of his father to take the personal as well as the real estate, or the heirs and next of kin, or the next of kin only(a). Where, however, the power is to be exercised by the donee by will, or at his death, or at or before his death, the objects will be considered to be those who answer a particular description at the death of the donee, and there will be no uncertainty(5). 919. Even where these three requisites exist, if it appears from the context, that the first taker was intended to have a discretionary power to withdraw any part of the subject from the object of the wish or request, no trust will be created(c). Thus, the words “free and unfettered” accompanying the strongest expressions of request, were held to prevent the words of request from being imperative(d). 920. Where a trust has been created in favour of certain objects, by words of recommendation, such part of the pro- perty as is not wanted for the purposes of the trust will belong to the person upon whom the property has been conferred, subject to the trust, no resulting trust arising for the next of kin or heirs at law(e). 921. There is another class of cases of a similar nature, where powers are given to persons accompanied with such words of (a) Meredith v. Heneage, 1 Sim. 542; Sale v. Moore, 1 Sim. 534; Benson v, Whittam, 5 Sim. 22; Wright v, Atkyns, T. & R. 157, 163. (6) Pierson v. Garnett, 2 Bro. C. C. 38, 226; Atkyns v. Wright, 17 Ves. 255 ; 19 Ves. 299; Meredith v. Heneage, 1 Sim. 558; Knight v. Knight, 3 Beav. 173; 11 Cl. & Fin. 513. (c) See Ball v. Vardy, 1 Ves. 270 ; Meggison v. Moore, 2 Ves. 630; Knight ». Knight, 3 Beav. 148 ; 11 Cl. & Fin. 513. And also, Bernard v. Minshull, Johns, 276; Williams v. Williams, 1 Sim. wn. 8. 358, (d) Meredith v. Heneage, 1 Sim. 542; 10 Price, 230; Hoy ». Master, 6 Sim. 568. And see Finden v. Stephens, 2 Ph. 142; Knott v. Coltee, 2 Ph. 192; Johnston. »v. Rowlands, 2D. & Sm. 356 ; Shaw v. Lawless, 5 Cl. & Fin, 129, (e) See Wood v, Cox, 2 M. & C. 684, overruling judgment of Lord Langdale, 1 Keen, 317. 388 EQUITY JURISPRUDENCE. recommendation in favour of certain objects, as to render these powers in the nature of trusts, so that the failure of the donees to exercise such powers in favour of the objects, will not turn to their prejudice, since the court will, to a certain extent, take upon itself the duties of the donees(a). 922. It is perfectly clear, that where there is a mere power of disposing, and that power is not executed, the court cannot execute it(b). It is equally clear that, wherever a trust is created and the execution of that trust fails by the death of the trustee or by accident, the court will execute the trust(c). 923. But there is not only a mere trust and a mere power, but there is also known tothe court a power which the party to whom it is given is intrusted and required to execute. With regard to that sort of power, the court considers it as partaking so much of the nature and qualities of a trust, that if the person who has the duty imposed upon him does not discharge it, the court will, to a certain extent, discharge the duty in his room and place(d). 924. It is in cases of wills that courts of equity are fre- quently called upon to apply the doctrine, as it is commonly called, of cy pres; and it is by no means confined, as is some- times supposed, to cases of charities. 925. The doctrine of cy pres, it was said by V.-C. Wigram, “is now sufficiently simple, and is well established, though sometimes of difficult application. If an estate is given toa person for life, or indefinitely, and, after failure of issue of such (a) Gower v, Mainwaring, 2 Ves. Sen. 87; Gude v, Worthington, 3D. & Sm. 389; Reid v. Reid, 25 Beav. 469; Izod v. Izod, 32 Beav. 242; Re Caplin’s Will, 34 L. J. nN. 8. Ch. 578. (6) Brown v. Higgs, 8 Ves. 570. () Brown 'v. Higgs, 8 Ves, 570; Att.-Gen. v. Lady Downing, Amb. 550; Att.- Gen. v. Hickman, 2 Eq. Ca. Abr.193; Wainwright v. Waterman, 1 Ves, 311; Gude». Worthington, 3 D. & Sm. 389. (d) Brown v, Higgs, 8 Ves. 570. And see Burrough v, Philcox, 5 M. & C. 72; Davy v. Hooper, 2 Vern. 665; Madoc v. Jackson, 2 Bro. C. C. 588; Hockley » Mawbey, 1 Ves. 143; Jones v. Torin, 6 Sim, 255; Salusbury v Denton, 3K & J. 29; Little v. Neil, 10 W. R. 592; Gough v. Bult, 16 Sim, 45. 4 WILLS AND TESTAMENTS. 389 person, it is given over, the court implies an estate tail in the first taker, sacrificing only, in that simple case, the life-estate, in order that all the issue may be embraced in the limitation. The next case which may be noticed, is where a testator, after giving a particular estate to the first taker, has gone on to di- rect that it shall go to unborn persons, in a way which would create a perpetuity, with a limitation over, on failure of issue of the first taker. The court in such a case, is embarrassed with the fact, that, besides the gift over, which, in the simple case first stated would create an estate tail, there is a direc- tion that the estate shall devolve in a manner not allowed by law, but which, in common cases, previously to Pitt v. Jack- son(a) would so far as respected the order of the succes- sion, only be consistent with and included in an intention to give an estate tail.” 926. “The courts were thus placed in this position ; the in- tention to give the estate to particular persons, in particular order of succession, was manifest ; but the specified mode in which those persons were to take, being excluded by the rule of law against perpetuities, the question was, whether the primary intention to benefit particular persons, in a particular order or succession, should be accomplished, and the parti- cular mode of giving effect to it be rejected, or the whole will be inoperative. This was the difficulty with which the court had tostruggle. Whether the two expressed intentions, both of which could not be effectuated, were well or ill des- cribed by the terms ‘general’ and ‘particular’ intention, or whether the criticism upon those expressions is just, appears to me immaterial. It isamode of characterizing the different, and to a certain extent, conflicting inlentions of the testator, which satisfied Lord Eldon and other judges of great eminence. The meaning of the terms isnow sufficiently understood. In order to preserve and effect something which the court col- lects, from the will, to have been the paramount object of the testator, it rejects something else, which is regarded as merely (a) Pitt v. Jackson, 2 Bro. C. C. 51; Vanderplank v. King, 3-Hare, 1. See Han- nam v. Sims, 2D. & J. 151. 390 EQUITY JURISPRUDENCE. a subordinate purpose; namely, the mode of carrying out that patamount intention’/a). 927. The illustrations of the constructions which courts of equity have adopted, in the case of wills, in order to effect the obvious intention of the testator, by a departure more or less marked, from the strict literal and grammatical import of the words, are, of necessity, almost as various as the cases. Some general rules will be found to obtain in all cases which are regarded as reliable 1. That the words must have their or- dinary, popular signification, technical terms excepted, unless there is something in the context, or subject-matter, to indicate a different use ; and this indication must be clear and unequi- vocal, in order to prevail. 2. Where the words can have a natural, and also a secondary and unusual interpretation, the former will be preferred(b). Words will be supplied by obvious implication(c). “ Or,” will be read “and”(d). Where a residue is given directly to a class, and it consists partly of reversion- ary property, the class is to be ascertained at once, and not from time to time, as the reversions fall in and become distribut- able(e). And in construing a will, plain and distinct words are only to be controlled by words equally plain and distinct (f). The general presumption is, that the testator expects the words of his will to speak from his death. A different con- struction will not therefore be admitted unless very obviously intended(g). If the language of a will admits of two con- structions,—one, reasonable and natural in its direction of property, and the other capricious and inconvenient, courts of justice may reasonably lean towards the former, as being what was properly intended(h). ° (a) Story, s. 1074 a. (2) See Pasmore v. Huggins, 21 Beav. 103 ; Abbott v. Middleton, 21 Beav. 143; Hildersdon v. Grove, 21 Beav. 518 ; Circuitt v. Perry, 23 Beay. 275 ; Birds v. Askey, 24 Beav. 615 ; Douglas v. Fellows, Kay, 114 ; Kennedy v. Sedgwick, 3 K. & J. 540; Browne v. Hammond, Johns. 210. (ce) Abbott v. Middleton, 21 Beav. 143. (d) Maude v. Maude, 22 Beav. 290. (e) Hagger v. Payne, 23 Beav. 474. (f) Goodwin v. Finlayson, 25 Beay. 65. (g) Goodlad ». Burnett, 1 K. & J. 341; Bullock v, Bennett, 1 K. & J. 315. (2) Jenkins », Hughes, 6 Jur. N. 8. 1043; Story, s. 1074 b. WILLS AND TESTAMENTS. 391 928. A marked change has occurred in the construction of wills, in regard to clauses connected conjunctively being con- strued disjunctively, and vice versa. From the time of Lord Hardwicke(a), until a comparatively recent date(b), the con- struction of taking such clauses rather according to the general purpose and scope of the instrument had prevailed, whereby a conjunctive particle was often read disjunctively, and some- times the contrary. But Lord Ellenborough(e) thought it contrary to common sense to read “and” disjunctively. Since that time the decisions have fluctuated, until it was definitely settled in the House of Lords, that the strict literal con- struction should prevail(d). 929. As a general rule, the term“ money,” in a will, does not include stocks, either in the public funds or private corpo- rations. But where there is nothing else upon which the gift can operate, public stocks will pass under a bequest of “all the money I may die possessed of”(e). Buta bequest of “all my fortune now standing in the funds,” will not pass bank-stock(f). But in many cases, and particularly, in cases of executory devises, the gift over is held to take effect where the contemplated intervening estate never attaches, as where the gift over is upon the death of settlor’s children, leaving no issue, and the settlor in fact never had any children(g). 930. When discussing the question of construction of wills ina late case(h), the Lord Chancellor said: “ Upon the construc- tion of wills we are not much assisted by a reference to cases, unless the will, or the words used, are very similar. If this is not so, they are more likely to mislead, than to assist, in (a) Brownsword v. Edwards, 2 Ves. Sen. 248; Bell v. Phyn, 7 Ves. 453. (6) Doe v. Jessep, 12 East. 288. (c) Doe v. Jessep, 12 East, 288. (d) Grey v. Pearson, 6 H. L. 61; 3 Jur. nN. 8. 823. See also Pearson ». Rutter, 3D. M. & G. 398 ; Seccombe v. Edwards, 6 Jur Nn. 8. 642. (ec) Chapman v. Reynolds, 6 Jur. n. 8. 440. See also Cowling v. Cowling, 26 Beav. 449 ; Lowe v. Thomas, 5 D. M. & G. 315; Wylie v. Wylie, 6 Jur. N. 8. 259. (f) Slingsby v. Grainger, 5 Jur, N. s. 1111; Re Powell, 5 Jur. n. 8. 331. ) Osborn v. Bellman, 6 Jur. N. 8. 1325. {h) Stewart v. Jones, 5 Jur. N. 8. 229; 3 D. & J. 582. 392 EQUITY JURISPRUDENCE, coming to a correct conclusion. The object of construction is to ascertain the intention of the testator, which is to be col- lected, not from isolated passages, but from the whole of the will, and the general scope and scheme of it. And first, what is the ordinary meaning of the expressions used by the testa- tor? If the meaning of the words he has used is clear, they must be adopted, whatever the inclination of the court may be’(a). 931. The disposition of the courts of equity undoubtedly is, to construe general words, following a specific enumeration of articles in a will, as limited to matters efusdem generis. It was accordingly held, that a bequest of “all and singular my household furniture, plate, linen, china, pictures, and other goods, chattels, and effects, which shall be in, upon, and about my dwelling-house and premises, at the time of my decease,” did not include a sum of money found in the house (b). CHAPTER XXXI. ELECTION. 932. ELECTION is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is a clear intention of the person from whom he derives one, that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, that one shall be a substitute for the rest. The second gift is designed to be effectual only in the event of the donee declining the first; and the substance of the gifts combined is an option(c). (a) Story, s. 1074 £. (6) Gibbs v. Lawrence, 7 Jur. n. s. 137. And see Byrom v. Brandreth, 21 W. R. 942. (c) See Dillon v. Parker, 1 Swanst, 394, note b; Thellusson v. Woodford, 13 Ves. 220; Birmingham ». Kirwan, 28. & L. 449. And see Stephens v. Stephens, 1D. & J. 62; Usticke v. Peters, 4K. & J. 437 ; Wintour ». Clifton, 21 Beav. 447. ELECTION. 893 933. Thus, for example, if a testator should, by his will, give to a legatee an absolute legacy of ten thousand dollars,. or an annuity of one thousand dollars per annum during his life, at his election ; it would be clear that he ought not to have both; and that he ought to be compelled to make an election, whether he would take the one or the other. This would be a case of express and positive election. But sup- pose, instead of such a bequest, a testator should devise an estate belonging to his son, or heir-at-law, to a third person ; and should, in the same will, bequeath to his son, or heir-at- ‘law, a legacy of one hundred thousand dollars, or should make him the residuary devisee of all his estate, real and personal. It would be manifest, that the testator intended that the son or heir should not take both to the exclusion of the other devisee; and therefore he ought to be put to his election which he would take; that is, either to relinquish his own estate or the bequest under the will. This would be a case of implied or constructive election(a). 934. The ground upon which courts of equity interfere is, that the purposes of substantial justice may be obtained by carrying into full effect the whole intentions of the testator(4). The foundation of the doctrine in cases of implied election, is still the intention of the author of the instrument; an inten- tion which, extending to the whole disposition, is frustrated by the failure of any part. Its characteristic is, that by equi- table arrangement, full effect is given to a donation of that which is not the property of the donor. A valid gift, in terms absolute, is qualified by reference to a distinct clause, which, though inoperative as a conveyance, affords authentic evidence of intention. The intention being assumed, the con- science of the donee is affected by the condition, although des- titute of legal validity, not express, but implied, which is annexed to the benefit proposed to him. To accept the bene- (a) Story. s. 1076. (b) Crosbie v Murray, 1 Ves, 557. 394 EQUITY JURISPRUDENCE. fit, while he declines the burden, is to defraud the design of the donor(a). 935. To illustrate the doctrine of election, suppose A., by will or deed gives to B., property belonging to C., and by the same instrument gives other property belonging to himself to C., equity will hold C. to be entitled to the gift made to him by A. only, upon the implied condition of his conforming with all the provisions of the instrument, by renouncing the right to his own property in favour of B. He must, conse- quently, make his choice, or as it is technically termed, he is put to his election, to take either under or against the instru- ment. 936. Where C., the donee, elects to take under, and conse- ‘quently to conform to all the provisions of the instrument, no difficulty can arise, as B. will take C’s property, and C. will take the property given to him by A. ButifC. elects to take. against the instrument, that is to say, retains his own property, and at the same time, sets up a claim to the property given to him by A., an important question arises whether he thereupon incurs a forfeiture of the whole benefit conferred upon him by the instrument, or is merely bound to make compensation out of it to the person who is disappointed by his election. There are many dicta in favour of the doctrine of forfeiture(b), but the leading authorities support the doctrine of compensa- tion(c). (a) Story, s. 1077 ; 1 Swanst. 394, 395, note (6); Noysv. Mordaunt, 2 Vern, 581 Frank v. Lady Standish, 15 Ves. 391, note; Streatfield v. Streatfield, Cas. t. Talb. 183; Boughton v. Boughton, 2 Ves. 12, 14; Broome v. Monck, 10 Ves. 616, 617; Walker v. Jackson, 2 Atk. 627, 629; Clarke v. Guise, 2 Ves. 617; Wilson v. Lord Townsend, 2 Ves. 696; Blake v. Banbury; 4 Bro. C. C. 21, 24; 1 Ves. 514; Thel- lusson v. Woodford, 13 Ves. 220; Warren v. Rudall, and Hall v. Warren, 6 Jur. N. s. 395. : (0) See Cowper v. Scott, 3 P. W. 124; Cookes v. Hellier, 1 Ves. 235; Morris v. Burroughs, 1 Atk. 404; Pugh v. Smith, 2 Atk. 43; Wilson v. Mount, 3 Ves. 194; Wilson v. Townshend, 2 Ves. 697; Broome ». Monck, 10 Ves. 609; Thellusson v. v, Woodford, 13 Ves. 220; Villareal v.:Lord Galway, 1 Bro. C. C. 292; Green v. Green, 2 Mer. 86. And see Greenwood v. Penny, 12 Beav. 406. (c) Streatfield v. Streatfield, Cas. t. Talb. 176; Bor v. Bor, 3 Bro. P. C. 167; Ardesoife v. Bennet, 2 Dick, 465; Lewis v. King, 2 Bro. C. O. 600; Freke v. Bar- rington, 3 Bro. C. C. 284; Whistler v. Webster, 2 Ves. 372; Ward v. Baugh, 4 Ves. 627 ; Dashwood v. Peyton, 18 Ves. 49; Tibbitts v. Tibbitts, Jac. 317; Lord Ran- cliffe v. Parkyns, 6 Dow, 179; Kerr v. Wauchope, 1 Bligh, 25. ELECTION. 395 937. The conclusion from all the authorities has been thus summed up:- (1) That in the event of an election to take against the instrument, courts of equity assume jurisdiction to sequester the benefits intended for the refractory donee, in order to secure compensation to those whom his election dis- appoints; (2) That the surplus after compensation does not devolve, as undisposed of, but is restored to the donee, the purpose being satisfied for which alone the court controlled his legal right(qa). 938. As the doctrine of election depends upon compensa- tion, it follows that it will not be applicable unless there be a fund from which compensation can be made. Thus, where under a power to appoint to children, the father made an ap- pointment improperly, it was held that any child entitled in default of appointment, might set it aside, although a specific share was appointed to him.- The doctrine of election, it was said, never can be applied, but where, if an election is made contrary to the will, the interest that would pass by the will can be laid hold of to compensate for what is taken away ;- therefore, in all cases there must be some free disposable pro- perty given to the person, which can be made a compensa- tion for that the testator takes away(d). 939, The doctrine of election is applicable to deeds as well as to wills(c), although by the civil law, from which it appears to have been borrowed by courts of equity, it was confined to wills(d). _ And the doctrine is applicable to interests remote, contingent, or of small value, as well as to those which are im- mediate, or of great value(e). , (a) 1 Swanst. 433. And see Padbury ». Clark, 2 Mac. & G., 298; Greenwood 2. Penny, 12 Beav. 403; Howells v. Jenkins, 1 D. J. & 8. 617. (b) Bristowe v. Ward, 2 Ves. 336. See Banks v. Banks, 17 Beav. 352; Re Fow- ler's Trust, 27 Beav. 362. (c) Bigland v. Huddleston, 3 Bro. C. C. 286 n ; Moore % Butler, 28. & L. 266; Bir- mingham v. Kirwan, 2S. & L. 450; Green v. Green, 2 Mer. 86 ; Bacon v. Cosby, 4 D. & Sm. 261 ; Cumming v. Forrester, 2 J. & W. 345; Anderson v. Abbott, '23 Beav. 457; Mosley v. Ward, 29 Beav. 407. i : (d) See note to Dillon v. Parker, 1 Sw. 394. (ec) Webb v. Earl of Shaftesbury, 7 Ves. 480 ; Highway ». Banner, 1 Bro. C. C. 584 ; Wilson v. Townsend, 2 Ves. 697; Morgan v. Morgan, 4 Tr. Ch. 606. But see Bor v. Bor, 3 Bro, P. C. 178 n. ‘ 396 EQUITY JURISPRUDENCE. 940. In order to raise a case of election, there must appear in the will or instrument itself, a clear intention. on the part of the author of it to dispose of that which is not his own(q). And it is immaterial whether he knew the property not to be his own, or by mistake conceived it to be his own. In either case, if the intention to dispose of it appears clearly, his dispo- sition will be sufficient to raise a case of election(b). 941. The difficulty of sustaining a case of election, is always much greater where the testator has a partial interest in the property dealt with, than where he purports to devise an estate in which he has no interest at all(c). Where the testator has some interest, the court will lean as far as possible to a con- struction which would make him deal only with that to which , he is entitled(d), But where a testator, entitled only to part of an estate, uses words in devising it, which show clearly that he intended to pass the entirety, if the owner of the other part takes other benefits by the will, he will be put to his election (e). 942. The earliest cases, in which the doctrine of election was applied in English ‘jurisprudence, seem to have been those arising out of wills ; although it has since been extended to cases arising under other instruments(/). It has been said, that the doctrine constitutes a rule of law, as well as of equity ; and that the reason why courts of equity are more frequently (a) Forrester v. Colton, 1 Ed. 531; Judd v. Pratt, 13 Ves. 168 ; 15 Ves. 390; Dash- wood v. Peyton, 18 Ves. 27 ; Blake v. Bunbury, 4 Bro. C. C, 21; 1 Ves. 514; Ran- cliffe v. Lady Parkyns, 6 Dow, 149, 179 ; Jervoise v. Jervoise, 17 Beav. 566 ; Padbury v. Clark, 2Mac. & G. 298; Lee v. Egremont, 5 D. & Sm. 348; Wintour ». Clif- ton, 21 Beav. 447; 8D. M. & G. 641; Stephens v, Stephens, 3 Drew. 697; 1D. & J. 62; Poole v. Oldham, 10 W. R. 337, 591; Fox v. Charlton, 10 W. R. 506. And see Churchill v. Churchill, L. R. 5 Eq. 44. (6) Whistler v. Webster, 2 Ves., 370; Thellusson v. Woodford, 13 Ves. 221; Welby v. Welby, 2 V. & B. 199 ; Whitley v, Whitley, 31 Beav. 173. (c) Lord Rancliffe v. Lady Parkyns, 6 Dow, 185. (d) Maddison v, Chapman, 1 J. & H. 470; Re Bidwell’s settlement, 11 W. R. 161. (e) Padbury v. Clark, 2 Mac. & G. 298; Wintour v. Clifton, 21 Beav. 447; 8D. M. & G. 644 ; Grosvenor v. Durston, 25 Beav. 97; Usticke v. Peters, 4 K. & J. 487 ; Fitz- simmons v. Fitzsimmons, 28 Beav. 417 ; Howells v. Jenkins, 2 J. & H. 706; 1D. J.& S. 617. Butsee Chave v. Chave, 2J. & H. 713 n. (f) Bigland v. Huddleston, 3 Bro. C. C. 285 ; Green v. Green, 9 Mer. 86; 19 Ves. 665. ELECTION. 397 called upon to consider the subject is, that in consequence of the forms of proceeding at law, the party cannot bé put to elect. In order to enable a court of law to enforce the prin- ciple, the party must either be deemed concluded, being bound by the nature of the instrument, or must have acted upon it in such a manner as to be deemed concluded, by what he has done; that is, to have elected. This frequently throws the jurisdiction into equity, which can compel the party to, make an election, and not to leave it uncertain under what title he may take(a). 943. The question of the competency of persons under dis- abilities, to make valid elections affecting their title to real estate, is discussed. very much at length, and the cases reviewed, by Vice-Chancellor Page Wood(b). The conclusion to which this eminent judge came is, that a married woman can elect so as to affect her interest in real estate, without deed(c), ac- knowledged according to the requisite formalities of the statute; and that where she has, in fact, made such election upon which other parties have acted, the court can order a conveyance accordingly, the ground of such order being that no married woman shall avail herself of benefits arising from a frand(d). 944, If a testator should bequeath property to his wife, manifestly with the intention of its being in satisfaction of her dower, it would create a case of election(e). But such an intention must be clear and free from ambiguity. And it wiil not be inferred from the mere fact of the testator’s making a . general disposition of all his property, although he should give his wife a legacy ; for he might intend to give only what wasstrictly his own, subject to dower. There isno repugnancy (a) Lord Redesdale, in Birmingham v. Kirwan, 2 8. & L. 450. (0) Barrow v.'Barrow, 4K. & J. 409. (c) But see Griggs v. Gibson, L, R. 1 Hq. 685. (2) See Savage v. Foster, 9 Mod. 35; Gretton v. Hayward, 1 Swanst. 413 ; Lassence v. Tierney, 1 Mac. & G. 551; Field v. Moore, 19 Beay.179; Campbell v. Ingilby, 21 Beav. 567; 1D. & J. 393; Willoughby v. Middleton, 2 J. & H. 344; Brownv. Brown, L. R. 2 Eq. 481; Codrington v. Lindsay, L. R. 8 Chan. 578. (ec) Arnold v. Kemstead, Ambler, 466 ; 2 Ed. 237, and note; Villareal v. Galway, 1 Bro. C, C, 292. And see Dyke v. Rendall, 2D.M. & G. 209; Nottley ». Palmer, 2 Drew, 93. 398 EQUITY JURISPRUDENCE. in such a devise or bequest to her title to dower(a). Besides the right to dower being in itself a clear legal right, an intent to exclude that right by a voluntary gift ought to be demonstrated, either by express words, or by clear and manifest implication. In order to exclude it, the instrument itself ought to contain some provision, inconsistent with the operation of such legal right(b). 945. The mere gift of an annuity by the testator to his widow, although charged upon all his property, is not suffi- cient to put her to her election between that and dower, even although the will contains a gift of the whole of the testator’s real estate io another person(c). So, the gift of a portion of his real estate to his widow, for lite or during widowhood, is not sufficient to put her to an election as to the residue of his real estate(d). ~ 946. The law of the Court of Chancery, at the present day, as to a wife’s duty to elect between a provision in the will of the husband and her right to dower, is, that if you find any thing in the will which is inconsistent with the assertion on . the widow’s part of her right to have one-third of the land set out by metes and bounds, that raises a case of election(e).. 947. It is upon a similar ground that the doctrine of elec- tion has been held not to be applicable to cases where the tes- tator has some present interest in the estate disposed of by (a) French v. Davies, 2 Ves. 576, 577; Lawrence v. Lawrence, 2 Vern. 366; and Raithby’s note ; 1 Swanst. 398, note ; Greatorex v. Cary, 6 Ves. 615 ; Kitson v. Kitson, Prec. Ch. 352; Foster v. Cook, 3 Bro. C. UC. 347; Strachan v. Sutton, 3 Ves, 249 ; Brown v. Perry, 2 Dick. 685; Incledon v. Northcote, 3 Atk. 430; Gibson v. Gibson, 1 Drew. 42. / (b) Story, s. 1088 ; Birmingham »v. Kirwan, 28. & L. 452, 453. See also Pearson v. Pearson, 1 Bro. C. C. 292, and Mr. Belt’s note ; Noreott v. Gordon, 14 Sim. 258; Lord Dorchester v. Earl of Effingham, Coop. t. Eld. 319; Harrison v, Harrison, 1 Keen, 767. (c) Holdich v. Holdich, 2 Y. & C. 18, 21, 22. And see Pearson v. Pearson, 1 Bro. C. C. 291; Foster v. Cook, 3 Bro. C. C. 347; Dowson v, Bell, 1’Keen, 761; Norcott v. Gordon, 14 Sim. 258 ; Hall v, Hill, 1 Dr. & W. 103. (d) Bending v, Bending, 3 K. & J. 257. (e) Bending v. Bending, 3 K. & J. 257; Birmingham v. Kirwan, 2S. & L. 449; Foster v. Cook, 3 Bro. C. C. 347 ; Strahan v. Sutton, 3 Ves. 249; Hall v. Hill, 1 Dr. & W. 107 ; Ellis », Lewis, 3 Ha. 310; Chalmers v, Storil, 2 V. & B. 222; Dickson ». Robinson, Jac. 503; Roberts v. Smith, 1 S. & S. 513; Gibson v. Gibson, 1 Drew. 42. ELECTION. 399° him, although itis not entirely his own. In such a case, unless there is an intention clearly manifested in the will, or (as it is sometimes called) a demenstration plain, or necessary impli- cation on his part, to dispose of the whole estate, including the interest of third persons, he will be presumed to intend to dispose of that which he might lawfully dispose of, and of no more (a). 948. Other exceptions may easily be put to the general doc- trine of election. Thus, for instance, if a man should, by his will, give a child, or other person, a legacy. or portion, in lieu or satisfaction of a particular thing expressed, that would not exclude him from other benefits, although it might happen to be contrary to the will; for courts of equity will not construe it, as meant in lieu of every thing else, when the testator has said it is in lieu of a particular thing(d). 949. If a legatee should decline one benefit charged with a portion, given him by a will, he would not be bound to de- cline another benefit, unclogged with any burden, given him by the same will(c). So, if a legatee cannot obtain a particu- lar benefit, designed for him by a will, except by contradict-- ing some part of it, he will not be precluded by such contra- diction, from claiming other benefits under it. The ground of all these exceptions is, that it is not apparent, from the face of the will, that the testator meant to exclude the party from all benefits under the will, unless, in all respects, the purposes of the will were fulfilled by him(d). But, if it should be so - apparent, or fairly inferable from the nature of the different benefits conferred by the will, there the legatee would be put to his election, to take all or to reject all(e). (a) Story, s. 1089 ; Ranclyffe v. Parkyns, 6 Dow, 149, 185 ; Blake v. Bunbury, 1 Ves. 515, 523, See Grissell v. Swinhoe, L. R. 7 Eq. 291; Wilkinson v. Dent, L. R. 6 Chan. 339. @) Story, s. 1090 ; East v. Cook, 2 Ves. 28; Dillon v. Parker, 1 Swanst. 404, 405, note ; Wilkinson v. Dent, L. R. 6 Chan. 339. (c) Andrews v. Trinity Hall, 9 Ves. 534 ; 1 Swanst. 402, note. (d) See East v. Cook, 2 Ves. 23; Bor v. Bor, 3 Bro. P. C. 167 ; Huggins.v. Alexan-- der, cited 2 Ves. 31; Wollaston v. King, L. R. 8 Eq. 165; Grissell 7. Swinhoe, L. R. Eq, 291; Cooper v. Cooper, L. R. 6 Chan. 15. (e) Story, s. 1091 ; Talbot v. Earl of Radnor, 3M. & K, 252. 400 EQUITY JURISPRUDENCE. 950. The doctrine of election is not applied to the case of creditors. They may take the benefit of a devise for payment of debts, and also enforce their legal claims upon other funds disposed of by the will; for a creditor claims not as a mere volunteer, but for a valuable consideration(a). Questions on this point are not likely to arise now, as real estates are liable for the payment of simple contract debts, as well as those by specialty. 951. Persons compelled to elect are entitled previously to ascertain the relative value of their own property?and that conferred upon them(b). And an election made under a mis- taken impression, will not be binding, for in all cases of elec- tion the court while it enforces the rule of equity, that the party shall not avail himself of both his claims, is anxious to secure to him the option of either, and not to hold him con- cluded by equivocal acts, performed, perhaps, in ignorance of the value of the funds(c). Therefore, a person compelled to elect may file a bill to have all necessary accounts taken(d). 952. Election is either express or implied, and considerable difficulty often arises in deciding what acts of acceptance or acquiescence amount to an implied election. This question must be determined more upon the circumstances of each particular case, than upon any general principle. It is, how- ever, settled that, any acts to be binding upon a person, must be done with a knowledge of his rights, and with the inten- tion of electing(e). 953. On a question of election by a party bound to elect be- tween two properties, it is necessary to inquire into the circum- (a) Kidney v. Coussmaker, 12 Ves. 154. See also Clarke v. Guise, 2 Ves. 617; Dey v. Dey, 2 P. W. 412. : (b) Newman v. Newman, 1 Bro. ©. C. 186; Wake v. Wake, 3 Bro. C. C. 255; Chalmers v. Storil, 2 V. & B. 222 ; Hender v. Rose, 3 P. W. 124 n. (c) Pusey v. Desbouverie, 3 P. W. 315; Wake v. Wake, 3 Bro. C. C. 255; Kid- ney v. Coussmaker, 12 Ves. 136; Boynton v. Boynton, 1 Bro. C. C. 445. (d) Butricke v. Brodhurst, 3 Bro. C. C. 88; Pusey v. Desbouverie, 3 P. W. 315. (e) Stratford v. Powell, 1 B. & B. 1; Dillon v. Parker, 1 Sw. 380; Edwards v. Morgan, 13 Price, 782; 1 Bligh, n. z. 401; Worthington v. Wiginton, 20 Beav. 67 ; Wintour v. Clifton, 21 Beav. 447, 468; 8 D. M. & G. 641; Campbell » Ingilby, 21 Beay. 582. FLECTION. 401 stances of the property against which the election is supposed to have been made. For, if a party so situated, not being called on to elect, continues in the receipt of the rents and profits of both properties, such receipt cannot be construed into an election to take the one and reject the other. In like manner, if one of the properties does nét yield rent to be received, and the party liable to elect deals with it as his own, as for instance, by mortgaging it (particularly if this be done with the knowledge and concurrence of the party entitled to call for an election), such dealing will be unavailing to prove an actual election as against the receipt of the rent of the other property(a). 954. It is difficult to lay down any rule as to what length of time, after acts done by which election is usually implied, will be binding upon a party, and prevent him setting up the plea of ignorance of his rights.. Thus, three years’ receipt of a legacy and annuity, under a will by a widow in ignorance of her rights, did not preclude her from making her election (b). And where a widow had received an annuity for five years, it was held she had not elected(c). But where a testa- tor having devised to his wife all his real and personal pro- perty during her widowhood, under which she immediately on her husband’s death entered upon the real estate, and applied to her own use the personal estate, the court restrained an action of dower brought by her after her second marriage, holding that she had elected against her dower, and that she was bound by the election she had made(d). 955. Acts of implied election which will bind a party will also bind his representatives(e), and some acts which would not be binding upon him, if insisted upon in his lifetime, will (a) Padbury ». Clark, 2 Mac. & G. 298. And see Morgan v. Morgan, 4 Ir. Ch. 606, 614. (0) Wake v. Wake, 1 Ves. 335. (c) Reynard v. Spence, 4 Beav. 103; Butricke v. Brodhurst, 3 Bru. C.C. 90. And see Sopwith v. Maugham, 30 Beav. 235. (d) Westacott v. Cockerline, 13 Gr. 79. (e) Earl of Northumberland ». Earl of Aylesford, Amb. 540, 657. See also Strat- ford v. Powell, 1 B. & B. 1; Ardesoife v, Bennett, 2 Dick. 463. 26 402 EQUITY JURISPRUDENCE. bind his representatives, upon that principle only, not to dis- turb things long acquiesced in in families, upon the foot of rights which those in whose place they stand, never called in -question(a). But if the representatives of those who were bound to elect, and who have accepted benefits under the instrument imposing the obligation of ‘election, but without explicitly electing, can offer compensation, and place the other party in the same situation as if those benefits had not been accepted, they may renounce them, and determine for them- selves(b ). 956. Where an infant is bound to elect, the period of elec- tion has, sometimes, been deferred until after he came-of age (c). In other cases, there has been a reference to inquire what would be most beneficial to the infant(d), but an order may be made for an infant to elect without any reference(e). 957. The practice as to election by married women in the Court of Chancery, varies, but in general there will be an in- quiry what is most beneficial for them, and they will be required to elect within a limited time/f). A married woman may elect so as to effect her interest in real property; and where she has once so elected, though without deed acknow- ledged, the court can order a conveyance accordingly, the ground of such order being that no married woman shall avail herself of a fraud. Having elected she is bound(g). (a) Tomkyns v. Ladbroke, 2 Ves. Sen. 593; Worthington v. Wiginton, 20 Beav. 67; Sopwith v. Maugham, 30 Beav. 235, 239; Whitley z. Whitley, 31 Beav. 173. (6) Dillon v. Parker, 1 Sw. 385; Moore v. Butler, 2 S. & L. 268; Tyssen v. Ben- yon, 2 Bro. C. C. 5. (c) Streatfield v. Streatfield, Cas. t. Talb. 176. And see Boughton ». Boughton, 2 Ves. 12; Bor v. Bor, 3 Bro. P. C. 173. ‘ : (d) Chetwynd v. Fleetwood, 1 Bro. P. C. 300; Goodwyn v. Goodwyn, 1 Ves. 228; Gretton v. Hayward, 1 Sw. 413 Ebrington v. Ebrington, 5 Mad. 117 ; Ashburnhan. v. Ashburnham, 13 Jur. 1111 ; Prole v. Soady, 8 W. R. 131. (© Blunt v, Lack, 26 L. J. Ch. 148, Lamb ». Lamb, 5 W. R. 772. (fy Pultney v. Darlington, 7 Bro. P. C. 546; Vane v. Lord Dungannon, 2 8. & L. 133; Davis v. Page, 9 Ves. 350. (9) Ardesdife v. Bennett, 2 Dick. 463; Barrow v. Barrow, 4 K. & J. 409; ‘Wil- loughby v. Middleton, 2 J. & H. 344; Sisson v. Giles, 11 W. R. 558; Saville v. Sa- ville, 2 Coll. 721; Anderson v. Abbott, 23 Beav. 457. But see Campbell v. Ingilby, 21 Beav. 467; Frank v. Frank, 3 M. & C. 171. SATISFACTION. 403 CHAPTER XXXII. SATISFACTION. 958. SATISFACTION may be defined in equity to be the do- nation of a thing, with the intention, expressed or implied, that itis to be an extinguishment of some existing right or claim of the donee. It usually arises in courts of equity as a matter of presumption, where a man, being under an obliga- tion to do an act, does that by will, which is capable of being considered as a performance or satisfaction of it, the thing performed being ejusdem generis with that which he has en- gaged to perform. Under such circumstances and in the absence of all countervailing circumstances, the ordinary pre- sumption in courts of equity is, that the testator has done the act in satisfaction of his obligation(a). 959. The presumption is not conclusive, but may be rebut- ted by other circumstances, attending the will. If the benefit given to the donee, possessing the right of claim, is different in specie from that to which he is entitled, the presumption of its being given in satisfaction will not arise, unless there be an express declaration, or a clear inference, from other parts of the will, that such is the intention of the testator(b). And the presumption may be rebutted, not only by intrinsic evidence, thus derived from the terms of the will itself, but it may also be rebutted by extrinsic evidence, as by declarations of the testator touching the subject, or by written papers, explaining or confirming the intention(c). 960. In regard to cases where the thing given is eusdem generis with that due to the donee, the presumption that it is given in satisfaction, does not necessarily arise, nor is it, as has. (a) Story, ». 1099. (®) Powell on Devises, 433, note (4). And see Hardingham v. Thomas, 2 Drew. ous. (c) Weall » Rice, 2 R. & M. 251, 263, 268, See Kirk »v. Eddowes, 3 Ha, 509; Hall v.,Hill. 1 Dru. & W. 118; Twining v. Powell, 2 Coll, 263. 404 EQUITY JURISPRUDENCE. been already intimated, universally conclusive. To make the presumption of satisfaction hold in any such cases, it is neces- sary that the thing substituted should not be less beneficial, either in amount or certainty, or value, or time of enjoyment, or otherwise, than the thing due or contracted for(a). 961. But where the thing substituted is eyusdem generis, and it is clearly ofa much greater value, and much more beneficial to the donee, than his own claim, there the presumption of an intended satisfaction is generally allowed to prevail(b). Whether the presumption of an intended satisfaction, pro tanto, ought to be made in any case, where the things are ejusdem generis, but less than the claim of the donee, is a mat- ter upon which some diversity of opinion appears to exist ; but the weight of authority is certainly in favour of it, in cases of portions and advancements(c). 962. A distinction must be made between cases of satisfac- tion and cases of performance. Satisfaction supposes intention. It is something different from the contract, and substituted for it. And the question always arises, was the thing intended as a substitute for the thing covenanted?_ a question entirely of intent. But with reference to performance, the question is, Has that identical act, which the party contracted to do, been done ?(d) 963. The rule, as to the satisfaction or ademption(e) of a legacy by aportion, has been thus laid down “ where a parent gives a legacy to a child, not stating the purpose with reference to which he gives it, the court understands him as giving a portion; and by a sort of artificial rule upon an arti- (a) Blandy v. Widmore, 1 P. W. 354, Mr. Vox’s note (1); Lechmere v. Earl of Car- lisle, 3 P. W. 225, 226 ; Atkinson v. Webb, 2 Vern. 478. (0) See Rickman v. Morgan, 2 Bro. ©. C. 394; Bellasis ». Uthwatt, 1 Atk. 426 ;. Weall v. Rice, 2 R. & M. 267, 268, 351. See also Earl of Glengall v. Barnard, 1 Keen, 769; s.c. nom. Lady Thynne v, Earl of Glengall, 2 H. L. 131. (ce) Story, s. 1105. And see Pym». Lockyer, 5M. & ©. 29, 34, 45; Kirk » Ed- dowes, 3 Ha. 509. (d@) Goldsmith v. Goldsmith, 1 Swanst. 211. (e) As to distinction between satisfaction and:ademption, see Coventry rv. Chichester,, 2H. & M. 159. SATISFACTION. 405 ficial notion, and a sort of feeling upon what is called a leaning against double portions, if the father afterwards ad- vances a portion on the marriage of that child, though of less amount, it is a satisfaction of the whole, or in part” (a). It is now settled that the gift of a portion of less amount than the legacy, is not a total ademption of the legacy, but merely pro tanto(b). 964. The rule or presumption against double portions is equally applicable in cases where a person has placed himself in loco parentis(c). 4 965. So strong is the leaning or presumption against double portions, that it will not be repelled, though there may be slight circumstances of difference between the advance and the portion(d) ; nor by the portion or legacy. being payable at different times(e); nor by the circumstance that the limita- tions of the portion under the will are very different from the limitations in the settlement(/). 966. A gift, however, of a sum of money to the husband of a daughter, by her father, simpliciter after the marriage, and not in consequence: of any promise made previous to the _ marriage taking place, will not be an ademption of a legacy given by the father to his daughter(g). 967. A legacy which has been adeemed by a settlement or _ advancement, will not be revived by a codicil made after such settlement, or advancement, although it confirms the will and all the bequests contained in it. The codicil can only act (a) Ex parte Pye, 18 Ves, 140. (b) Pym v. Lockyer,5 M. & C. 29. And see Kirk v. Eddowes, 3 Ha. 509; Mon- tague ». Montague, 15 Beav. 565 ; Hopwood v. Hopwood, 7 H, L. 728. (c) Booker v. Allen, 2R. & M. 270; Powys ». Mansfield. 3 M. & C. 359 ; Watson v, Watson, 33 Beav. 574. (d) Ex parte Pye, 18 Ves. 140. (e) Hartopp v. Hartopp, 17 Ves. 184. (f) See Trimmer v. Bayne, 7 Ves. 508 ; Monck ». Monck, 1 B. & B. 298 ; Sheffield v. Coventry, 2 R. & M. 317; Platt v. Platt, 3 Sim. 503; Day v. Boucher, 3 Y. & U. Ex. 411; Powys v. Mansfield, 3 M. & €. 359, 374 ; Lord Durham v Wharton, 3CL & Fin. 146, reversing S. C. 5 Sim. 297; 3 M. & K, 427. (g) Ravenscroft v. Jones, 32 Beav. 669, 670 ; McClure v. Evans, 29 Beav. 422. But see Ferris v. Goodburn, 27 L. J. n. 8. Ch. 574. 406 EQUITY JURISPRUDENCE. upon the will at the time, and at the time, the legacy revoked, adeemed, or satisfied, formed no part of it(a). 968. The presumption, however, of satisfaction being in- tended, may be repelled by the intrinsic evidence furnished by the different nature of the gifts, where, for instance, the testamentary portion and subsequent advancement are not ejusdem generis. Thus, a legacy to a son, of $500, was held not to be adeemed by a subsequent gift of one-half of the testator’s stock in trade, valued at $1,500(b). And a legacy of a sum of money will not be adeemed by an allowance of an annuity(c). So, also, where the testamentary portion is certain, and the subsequent advancement depends upon a contingency, the presumption of satisfaction will be repelled(d). 969. It was formerly held, that where the bequest was of an uncertain amount, as a bequest of a residue, or part of a residue, the presumption would not arise, as the idea of a por- tion ea vi termini was a definite sum/(e). But it has since been decided that a portion, by settlement or otherwise, will be a satisfaction, according to the amount, either in full or pro tanto, of a previous bequest of a residue( f). 970. An advancement may be made to a child, at other times than that of marriage, and the presumption against double portions will then arise. For instance, if a subsequent gift be described in a writing as a portion, or if an advance- ment be made, not evidenced by writing, evidence is admis- sible to show the nature of the transaction, But the court (a) Powys v. Mansfield, 3 M. & C. 376. (b) Holmes v. Holmes, 1 Bro. C. C. 555; Davys v. Boucher, 3 Y. & C. Ex, 411. , But see remarks on Holmes v. Holmes, in Pym v. Lockyer, 5 M. & C. 48. (c) Watson v. Watson, 33 Beav. 574. And see Pankhurst v. Howell, L. BR. 6 Chan. 136. (2) Spinks v. Robins, 2 Atk. 493; Crompton v. Sale, 2 P. W. 553. But see Powys ?- Mansfield, 3 M. & C. 359, 374. : (e) Freemantle v. Banks, 5 Ves. 85. And see Farnham v. Phillips, 2 Atk. 215 ; Smith v. Strong, 4 Bro. C. C. 493; Davys v. Boucher, 3 Y. & C. Ex. 397. (f) Scholfield v. Heap, 27 Beav. 93; Beckton v. Barton, 27 Beay. 99; Montefiore v. Guadalla, 1 D. F. & J. 93. And see Lady Thynne v. Earl of Glengall, 2 H. L. 131. @rrereee SATISFACTION. 407 will not add up small sums which a parent may give to a child, to show they were intended as a portion(a). 971. A legacy by a parent, or person in loco parentis, is not satisfied by occasional small gifts in the testator’s life time(b). And a sum of money given by a father to his daughter for a wedding outfit and a wedding trip, has been held not to be an ademption of a legacy(c). 972. With respect to the satisfaction of a portion by a legacy, the rule is, that wherever a legacy given by a parent, or a person standing in loco parentis, is as great as, or greater than, a portion or provision previously secured to the legatee upon marriage or otherwise, then, from the strong inclination of courts of equity against double portions, a presumption arises that the legacy was intended by the testator as a com- plete satisfaction(d). If the legacy is not so great as the por- tion or provision, a presumption arises that it was intended as a satisfaction pro tanto(e). And the bequest of the whole, or part of a residue, will, according to its amount, be presumed either a satisfaction of a portion in full or pro tanto(f). 973. Considerable differences only between the settlement and the will are considered sufficient to repel the presump- tion of satisfaction. Slight variations between the settlement and will, as for instance, as to the time of the payment of the portion or legacy, or between the limitations in the settlement and the will, are not sufficient for that purpose(g). The pre- (a) Suisse v. Lowther, 2 Ha. 434; Scholfield v. Heap, 27 Beav. 93. (b) Watson ». Watson, 33 Beav. 574. But see Ferris v. Goodburn, 27 L. J. N.». Ch. 574, (c) Ravenscroft v. Jones, 32 Beav. 669. (d) Bruen v. Bruen, 2 Vern. 439 ; Moulson v. Moulson, 1 Bro. C. C. 82; Copley ~. Copley, 1 P. W. 147; Ackworth v. Ackworth, 1 Bro. C. C. 307n; Finch v. Finch, 1 Ves. 534; Hinchcliffe v. Hinchcliffe, 3 Ves. 516; Sparks v. Cator, 3 Ves. 530; Pole v. Lord Somers, 6 Ves. 309; Bengough v. Walker, 15 Ves. 507. And see Lethbridge , v. Thurlow, 15 Beav. 334; Ferris v. Goodburn, 27 L. J. nN. s. Ch. 574. (ec) Warren ». Warren, 1 Bro. C. C. 305. (7) See Lady Thynne v. Earl of Glengall, 2H. L. 131; Richman v. Morgan, 1 Bro. ©. ©. 63; 2 Bro. C. C. 394; Bengough v. Walker, 15 Ves. 507; Coventry v. Chiches- ter, 2H. & M. 149; Campbell v. Campbell, L. R. 1 Eq. 383. (9) Sparkes v. Cator, 3 Ves. 530; Weall v. Rice, 2R. & M. 251; Earl of Glengall », Barnard, 1 Keen, 769; 8. C, nom. Lady Thynne v. Earl of Glengall, 2H. L. 131; Coventry v. Chichester, 2H. & M. 149. 408 EQUITY JURISPRUDENCE. 4 sumption, however, of satisfaction being intended, may be re- pelled by intrinsic evidence, showing the intention of the parent in favour of double portions(a). Such intention may also be sufficiently indicated from the different nature of the gifts. Thus, where the portion is vested, and the legacy is contingent, the presumption will be repelled; for it would be hard to say that a mere contingency should take away a por- tion absolutely vested(b). So, also, where the gift by the will and the portion are not eusdem generis, the presumption will be repelled. Thus, land will not be presumed to be intended as a satisfaction for money, nor money for land(c). 974. Where a parent, or person in loco parentis, makes a pro- vision by a settlement for his children, equal to or greater than a provision contained in a former settlement, it may be considered as a satisfaction. As, for instance, where, by a will, executed contemporaneously with the second settlement, he declares that a provision contained in it is to be taken as a satisfaction(d). But no presumption will arise where there are those distinctions between the nature of the two gifts which the court has relied upon in cases of satisfaction upon wills, to show that the presumption does not arise(e). 975. Where the first provision is by a will, it being a volun- tary irrevocable instrument, a subsequent advance will be a satisfaction, either wholly or in part, without reference to the wishes of the person advanced. If, however, the first pro- vision is by settlement or other contract, a subsequent legacy, considered as an advancement, will raise a case of election, that is to say, the legatee may, at his option, take either the first or last provision(/). (a) Lethbridge v. Thurlow, 15 Beav. 334. (6) Bellasis v. Uthwatt, 1 Atk. 426; Hanbury ». ilies 2 Bro. C. C. 352. And see Pierce v. Locke, 2 Ir. Ch. 205, 215. (c) Goodfellow v. Burchett, 2 Vern. 298; Bellasis ». Uthwatt, 1 Atk. 428; Ray v. Stanhope, 2 Ch. Rep, 159; Saville v. Saville, 2 Atk. 458; Grave v. Earl of Salisbury; 1 Bro. C. C. 425. But see Bengough v. Walker, 15 Ves. 507. (d) Davis v. Chambers, 7 D. M. & G. 386. (e) Palmer v. Newell, 20 Beav. 32, 40; 8D. M. & G. 74. (f) Copley v. Copley. 1 P. W. 147; Finch v. Finch, 1 Ves. 534; Hinchcliffe 7. Hinchcliffe, 3 Ves. 516; Pole v. Somers, 6 Ves. 309. SATISFACTION, ‘409 976. Another point which courts of equity are sometimes called upon to determine is, whether a second legacy is to be taken as substitutional or accumulative. Where the same specific thing or corpus is given, either in the same or in dif- ferent instruments, in the nature of the thing it can but be a _ ratification ; where, for instance, there are two gifts of a ruby ring and there is no pretence that there are two ruby rings(a). 977. It is also clear that, where a testator by different tes- tamentary instruments, has given legacies of quantity, sim- pliciter, to the same person, the court considering that he who has given more than once, must prima facie be intended to mean more than one gift, awards to the legatee all the legacies. And it is immaterial whether any subsequent legacy is of the same amount(d), or less(c), or larger than the first(d). The case is still stronger in favour of the legatee, where there is any variation as to the mode or times of payment, as when the legacy given by a will, and that given by a codicil are pay- able at different times, carry interest from different dates, or are given over to different persons(e). So, when the legacies are given upon or for different trusts and purposes(/). 978. But where the legacies, although given by different instruments, are not given simpliciter, but the motive of the gift is expressed, and the same motive is expressed, and the same sum given, by both instruments, the court considers (a) See Duke of St, Albans v. Beauclerc, 2 Atk. 638; Ridges ». Brown, 1 Bro. C. C. 392; Suisse ». Lowther, 2 Ha. 432; Roxburgh v. Fuller, 13 W. R. 39. (6) Wallop v. Hewett, 2 Ch. Rep. 70; Newport v. Kynaston, Rep. t. Finch. 204 ; Hooley v. Hatton, 1 Bro. C. C. 390n; Baillee v. Butterfield, 1 Cox, 392; Forbes v. Lawrence, 1 Coll. 495; Radburn v. Jervis, 3 Beav, 450; Lee v, Pain, 4 Hare, 201, 216; Roch v. Callen, 6 Ha. 531; Russell v. Dickson, 4 H. L. 304; Wilson v. O'Leary, L. R. 12 Eq. 525. : (ce) Pit ». Pidgeon, 1 Ch. Ca. 301; Hunt » Beach, 5 Mad. 358; Townshend v. Mostyn, 26 Beav. 72. . (d) Suisse x. Lowther, 2 Hare, 424; Hertford v. Lowther, 7 Beav. 107; Lyon ». Colville, 1 Coll. 449 ; Brennan v. Moran, 6 Ir. Ch. 126. (e) See Hodges v, Peacock, 3 Ves. 735 ; Mackenzie ». Mackenzie, 2 Russ. 262 ; Bartlett v. Gillard, 2 Russ. 149; Guy v. Sharp, 1 M. & K. 589; Wray v. Field, 6 Mad. 300; Watson v. Reid, 5 Sim. 431; Strong v. Ingram, 6 Sim. 197; Robley v. Robley, 2 Beav. 95; Att.-Gen. v. George, 8 Sim. 138. (f ) Saurey v. Rumney, 5 D. & Sm. 698. And see Spire v. Smith, 1 Beav. 419. 410 EQUITY JURISPRUDENCE. these two coincidences as raising a presumption that the tes- tator did not by a subsequent instrument mean another gift, but meant only a repetition of the former gift(a). This pre- sumption is raised, however, only where the double coinci- dence occurs, of the same motive, and the same sum in both instruments. It will not be raised, if in either instrument there be no motive, or a different or additional motive expressed, although the sums be the same(b). Nor will the presumption that repetition only, and not accumulation, was intended, arise, although the same motive be expressed in different in- struments, if the sums are different(c). . 979. Where a second instrument expressly refers to the first, although the legacies given in each to the same person may be of different amounts, it may appear, from intrinsic evidence, upon the true construction of the words in the second instru- ment, that the latter gift was intended to be substitutional (d). So, where a codicil furnishes intrinsic evidence that the testator is thereby revising, explaining, and qualifying his will, legacies may be construed to be substitutional(e), and a later instrument which appears, as to the legacies, to be a mere copy of the former, will so far be held as substitutional (f). 980. Where legacies of quantity are given by the same in- strument, whether a will or a codicil, to the same person sim- pliciter, and are of equal amount, one only will be good, the repetition being considered to arise from forgetfulness. Nor (a) Hurst ». Beach, 5 Mad. 358; Benyon v. Benyon, 17 Ves. 34. (b) Roch v. Callen, 6 Ha. 5381; Ridges v. Morrison, 1 Bro. C. C. 388. And see Mackinnon 2. Peach, 2 Keen, 555; Moggridge v. Thackwell, 1 Ves. 473; Lobley ». Stocks, 19 Beav. 392. (c) Hurst v. Beach, 5 Mad. 352; Lord v. Sutcliffe, 2 Sim, 273. (d Mayor of London ». Russell, Rep. t. Finch, 290; Martin v. Drinkwater, 2 Beav. 215 ; Bristow v. Bristow, 5 Beav. 289; Currie v. Pye, 17 Ves. 642. (e) Moggridge v, Thackwell, 1 Ves. 464; 3 Bro. C. C. 517; Fraser v. Byng, 1 R. & M. 90. , (f) Coote v. Boyd, 2 Bro. C. C. 521. And see Barclay v. Wainwright, 3 Ves. 462; Att.-Gen. v. Harley, 4 Mad. 263 ; Hemming v, Gurney, 28. & S. 311; 1 Bligh, n. &. 479; Gillespie v, Alexander, 2 S. & S. 145; Campbell ». Lord Radnor, 1 Bro. C. C. 271; Tuckey v. Henderson, 33 Beav. 184; Hinchcliffe v. Hinchcliffe, 2 Dr. & Sm. 96; Roxburgh v. Fuller, 13 W. R. 39, SATISFACTION. 41T will small differences in the way in which the gifts are con-. ferred, afford internal evidence that the testator intended that they should be cumulative. If, however, the legacies given by the same instrument are of unequal amount, and not merely as might be inferred from Hooley v. Hatton, where a large sum is given after a less, they will be considered cumulative(a). 981. The intention of the testator, when it can be collected from the instrument containing two legacies, will, of course,. override any presumption which might be raised inthe absence of such intention(d). And although legacies given by differ- ent instruments are equal, if they were intended by the testa- tor to be cumulative(c), or if though differing in amount, the latter was intended to be substitutional(d), the intention will be carried into effect. 982. On the question of the admission of extrinsic evidence, the conclusion from the authorities seems to be, that where the court itself raises the presumption against double legacies, as where two legacies of equal amount are given by one in- strument, parol evidence is admissible to show that the testa- tor intended the legatee to take both, for that is in support of the apparent intention of the will. On the other hand, when the court does not raise the presumption, as where legacies of equal amount are given simpliciter by different instruments, parol evidence is not admissible to show that the testator intended the legatee to take one only, for that is in opposition to the will(e). (a) Greenwood v. Greenwood, 1 Bro. C. C. 31n; Garth v. Meyrick, 1 Bro. C. C. 30; Holford v. Wood, 4 Ves. 76; Manning v. Thesiger, 3 M.& K. 29. And see Brine . v..Ferrier, 7 Sim. 549 ; Early v. Benbow, 2 Coll. 342; Early v. Middleton, 14 Beav. 453, (b) Yockney v. Hansard, 3 Ha. 622; Curry v. Pile, 2 Bro. C. C. 225. See Baylee v, Quinn, 2 Dr. & War. 116; Adnam v. Cole, 6 Beav. 353; Hartley v. Ostler, 22 Beav.. 449, (c) Lobley v. Stocks, 19 Beav. 392. (d) Russell y. Dickson, 4 H. L. 293. And see as to the effect of pribate having been granted to two distinct writings, Baillie v. Butterfield, 1 Cox, 392; Campbell v. Lord Radnor, 1 Bro. C. C. 272; Walsh v, Gladstone, 1 Ph. 294; Heming v. Clutterbuck, 1 Bligh, n. n. 491, 492; Brine v. Ferrier, 7 Sim. 549. (e) See Hurst v. Beach, 5 Mad. 351; Guy v. Sharp, 1M. & K. 589; Hall v. Hill, 1 Dr. & War. 94,116; Lee v. Pain, 4 Ha. 216 ; Martin v. Drinkwater, 2 Beav. 215; Coote v. Boyd, 2 Bro. C. C. 527. 412 EQUITY JURISPRUDENCE. 9838. The general rule with respect to the satisfaction of a debt by a legacy is, that if one, being indebted to another in a sum of money, does by his will give him a sum of money as great as, or greater than the debt, without taking any notice at all of the debt, this shall, nevertheless, be in satisfaction of the debt ; so that he shall not have both the debt and the legacy(a). 984. Therule as to this presumption has met with the cen- sure of the most eminent judges, as founded upon reasoning alike artificial and unsatisfactory. They have, although not breaking through this rule, said they would not go further, and have always endeavoured to lay hold of trifling circum- stances, in order to take cases out of it(d). 985. In this class of cases, there is a leaning against, as in the two first classes of cases, a leaning in favour of, the pre- sumption of satisfaction. Thus, where the legacy is of less amount than the debt, the presumption is, that it was not in- tended to be given in lieu of it. It will not therefore be considered a satisfaction, even pro tanto(c). So also, the pre- sumption of satisfaction being intended, will be repelled where the legacy, though in amount equal to, or greater than the debt, is payable at different times, so as not to be equally advantageous to the legatee as the payment of the debt(d). 986. The presumption will also be repelled, where the legacy and debt are of a different nature, either with reference to the subjects themselves, or with respect to the interest (a) Talbot v. Duke of Shrewsbury, Prec, Ch. 394. See also Brown v. Dawson, Prec. Ch. 240; Fowler v. Fowler, 3 P. W. 353; Richardson v. Greese, 3 Atk. 68; Gaynon v. Wood, 1 Dick, 331 ; Bensusan v. Nehemias, 4 D: & Sm. meh Shadbolt v. Vanderplank, 29 Beav. 405. (b) Lady Thynne v. Earl of Glengall, 2 H. J.. 153 ; Richardson v. Greese, 3 Atk. 65. (c) Cranmer’s Ca., 2 Salk. 508; Atkinson v. Webb, 2 Vern. 478 ; Eastwood v. Vinke, 2 P. W. 614, 617; Minuel v. Sarazine, Mos. 295; Graham v. Graham, 1 Ves. 263. But see Hammond v. Smith, 33 Beav. 452. (d) Atkinson v. Webb, Prec. Ch. 236 ; Nicolls v. Judson, 2 Atk. 300; Hales v. Dar- rell, 3 Beav. 324, 332; Charlton v, West, 30 Beav. 124. And see Pinchin v. Simms, 30 Beay. 119; Matthews v. Matthews, 2 Ves. 635; Clarke «. Sewell, 3 Atk. 96 Haynes v. Mico, 1 Bro. C. C. 129; Jeacock v. Falkner, 1 Bro. ©. C. 295. SATIS FACTION. 41S. given(a), or is not co-extensive with the debt(b). And where there is a particular motive assigned for the gift, it will not be: presumed to be a satisfaction for a debt(c). 987. Where the legacy is contingent, or uncertain whether it be given upon the happening of a contingency(d), or is in itself of an uncertain or fluctuating nature, as a gift of the whole, or a part of the testator’s residuary estate, even though it should prove greater in amount than the debt, it will not be held a satisfaction(e) ; and the result will be the same if the debt itself is contingent or uncertain, as a debt upon an open or running account ; for it might not be known to the testator” whether he owed any money to the legatee or not, and there- fore, it could not reasonably be held that he intended all or any to be in satisfaction of a debt which he did not know that he owed(f) But the presumption will not be rebutted by the circumstance that the debt is liable to variation in amount(g). 988. The presumption will not be raised where the debt of the testator was contracted subsequently to the making of the will, for he could have had no intention of making any satisfaction for that which was not in existence(h), and where there is an express direction in the will for payment of debts. and legacies, the court will infer that it was the intention of the testator, that both the debt and the legacy should be paid to the creditor(7). 989. A legacy given by the will of a parent to a child, is not upon any different footing from that of a legacy by any other person, as a satisfaction of a debt, not being a portion.. (a) Eastwood v. Vinke, 2 P. W. 614. (b) Alleyn v. Alleyn, 2 Ves. 37. (c) Matthews v. Matthews, 2 Ves. 635. (d\) Crompton v. Sale, 2P. W. 553. (e) Devese v. Pontet, 1 Cox, 188 ; Barret ». Beckford, 1 Ves. 519; Lady Thynne v. Earl of Glengall, 2 H. L. 154. (f) Rawlins v. Powell, 1 P. W. 297 ; Carry. Eastabrooke, 3 Ves. 561. (g) Edmunds v. Low, 3 K. & J. 318. ; (h) Cranmer’s Ca. 2 Salk. 508; Thomas v. Bennet, 2 P. W. 343; Plunkett ». Lewis, 3 Hare, 330. ; , (4) Richardson v. Greese, 3 Atk. 65.;, Field. v. Martin, Dick. 543 ; Hales v. Dar~ rell, 3 Beav. 324, 332. 414 EQUITY JURISPRUDENCE. Therefore, where a father owes a mere debt to a child, a sub- sequent legacy, will not in the absence of intention, express or implied, be considered as a satisfaction of the debt, unless it be either equal to, or greater than, the debt, in amount, and the presumption of satisfaction be not repelled by any of those slight circumstances, which will take a bequest of such amount to a stranger, out of the general rule(q). 990. Where the presumption arises merely from the fact of alegacy to a creditor being equal to or greater than the amount of the debt, it would appear, upon principle, that evidence ought to be admitted to rebut the presumption, and if so, evi-. dence may on the other hand be admitted to fortify it(b). How- ever, Lord Talbot refused on one oceasion to admit such evidence(c), and this decision appears to have been approved of by Lord Chancellor Sugden(d). CHAPTER XXXIIl. CONVERSION. 991. Nothing is better established than the 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 con- sidered as that species of property into which they are directed to be converted, and this in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement, or otherwise. Whether the money is actually de- posited, 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(e). . (a) Tolson v. Collins, 4 Ves. 483 ; Stocken v. Stocken, 4 Sim. 152. (b) Plunkett v. Lewis, Ha, 316. (c) Fowler v. Fowler, 3 v. W. 353. (d) Hall v. Hill, 1 Dr. & War. 121. (ce) Fletcher v. Ashburner, 1 Bro. C. C. 499. CONVERSION. 415 992. The direction to convert either money into land, or land into money, must be express and imperative, for if con- version be merely optional, the property will be considered as real or personal, according to the actual condition in which it isfound(a). But although the conversion is apparently op- tional, as, where trustees are directed to lay out personalty, “in lands or some other securities,” as they shall think most fit and proper, yet if the limitation and trust of the money directed to be laid out are only adapted to real estate, so as to denote the testator’s intention that land shall be purchased, this circumstance will outweigh the presumed option, and the money will be considered land(b). In any case, where it is clear that a testator, whatever may be the language he has used, intended that a conversion - should take place at all events, equity holding the doctrine that the intent rather than the form is to be considered, will direct that the property should be converted in accordance with the testator’s wishes (e). 993. Where absolute conversion is directed to be made by deed, if no time for it be pointed out, it will take place from the delivery of the deed(d). And in the case of a will it will take place from the death of the testator(e), even although there may be a direction that a sale should take place “ when- ever it should appear advantageous’ /). 994: Although it is true as a general rule, that in a deed conversion takes place from the date of its execution, caution is necessary in applying the rule to instruments, such as mort- gage deeds, where the general intention of the author of the trust is neither to convert nor to alter the devolution of pro- (a) Curling v. May, cit. 3 Atk. 255 ; Van v. Barnett, 19 Ves. 102; Amler v. Amler, 3 Ves. 583; Bourne v. Bourne, 2 Hare, 35; Polley v. Seymour, 2 Y. & C. Ex. 708. (b) Earlom v. Saunders, Amb. 241; Johnson v. Arnold, 1 Ves. 169 ; Cookson v. Reay, 5 Beay. 22; 12 Cl. & Fin. 120; Cowley v. Hartstong, 1 Dow, 361. (¢) Thornton v. Hawley, 10 Ves. 129 ; Grieveson ». Kirsopp, 2 Keen, 653 ; Davis v. Goodhew, 6 Sim. 585 ; Burrell v. Baskerfield, 11 Beav. 525. (d) Griffith v. Ricketts, 7 Hare, 299; Clarke v. Franklin, 4 K. & J. 257. (e) Beauclerk v, Mead, 2 Atk. 167. See Ward v. Arch, 15 Sim. 389. (f) Robinson v. Robinson, 19 Beav. 495. 416 EQUITY JURISPRUDENCE. perty; but merely to raise money. Thus, where default hay- ing been made in payment of a mortgage, the mortgagee after the death of the mortgagor intestate, exercised the power of sale, it was held that if the estate had been sold in the life- time of the mortgagor, then the surplus moneys would have been personal estate of the mortgagor, but the estate being unsold at his death, the equity of redemption descended to his heir, and he was entitled to the surplus(a). 995. The conversion “may be made to depend upon the option to purchase at a future time(b). Until, however, the option to purchase is exercised, the rents and profits will go to the persons who were entitled to the property up to that time, as real estate(c). . 996. Where a conversion is directed, whether by will or by settlement, or other instrument inter vivos, whether of money into land, or of land into money, if the objects and purposes for which the conversion was directed, have totally failed before the instrument directing the conversion comes into operation, no conversion will take place, but the property so directed to be converted, will remain in its original state, or rather, will result to the testator or settlor with its original form unchanged(d). 997. With regard to partial failure of the purposes for which conversion is directed, there is a material distinction as to the application of the doctrine to cases where the conversion is directed by will, and to cases where it is directed by deed. In the case of conversion directed by will, if there has been any partial failure of the purposes for which the conversion has been directed, to that extent it will result to the testator’s rep- (a) Wright v. Rose, 2S. & S. 323. (0) Lawes v. Bennett, 1 Cox, 167. (c) Townley v. Bedwell, 14 Ves. 591; Hx parte Hardy, 30 Beav. 206. See also Col- lingwood v. Row, 3 Jur. n. 8. 785 ; Gold v. Teague, 7 W. R. 84; Weeding v. Weeding, 1J. & W. 424; Woods v. Hyde, 10 W. R. 339. But see Drant v. Vanse,1 Y. & C. 580; Emuss v. Smith, 2 D. & Sm. 722. (d) See Clarke v, Franklin, 4 K. & J. 257; Ripley v. Waterworth,7 Ves. 435; Smith'v, Claxton, 4 Mad, 492. CONVERSION. 417 resentatives, real or personal, who would have been entitled to take it, had no conversion been directed(a). Where by an instrument inter vivos, conversion is directed for certain speci- fied purposes or objects, and a part of these purposes or objects fail, the property to that extent results to the settlor,not in its original form, but in the torm into which he has directed it to be converted(b). 998. A wrongful conversion of property by trustees will not affect the interests of the cestuis que trust. Thus, if real pro- perty be wrongfully converted into personalty, or personalty into realty, each property so converted will be considered to retain its original character(c). 999, Although land absolutely directed or agreed: to be con- verted into money, and money directed to be converted into Jand, will immediately be impressed with the character of the property into which each is respectively to be converted, still this notional conversion may be put an end to, by the absolute owner electing to take the property in its actual state. And the court will not direct a conversion against his election, because when converted, he might immediately reconvert it(d). . (a) See Ackroyd v. Smithson, J Bro. C. C. 503; Hill v. Cock, 1 V. & B. 175; Hodg- son ¥. Bective, 1 H. & M. 376; s. o. nom. Bective ». Hodgson, 10 H. L. 656; Jessop v, Watson, 1M. & K. 665; Robinson »v. Taylor, 2 Bro. C. C. 589; Berry v. Usher, 11 Ves. 87 ; Wilson v. Major, 11 Ves. 205; Watson v. Hayes, 2 M. & C. 125 ; Fitch v, Weber, 6 Hare, 145; Shallcross v. Wright, 12 Beav. 505 ; Gordon c. Atkinson, 1 D. & Sm. 478; Taylor v. Taylor, 3D. M. & G. 190; Ellis ». Bartrum, 25 Beav. 110. (0) Hewitt v. Wright, 1 Bro. C. C. 86. See also Van v. Barnett, 19 Ves. 102; Biggs v. Andrews, 5 Sim. 424; Griffith v. Ricketts, 7 Hare, 299, 311 ; Clarke v. Franklin, 4 K. & J, 257; Pultney v. Darlington, 1 Bro. C. C. 223; Lechmere v. Lechmere, Ca. t. Talb. 80. (c) Lewin on Trusts, 825. (@) Seeley v. Jago, 1 P. W. 389, An infant cannot ordiarily elect, Carr v. Ellison, 2 Bro. C. C. 56; Van v. Barnett, 19 Ves. 102; Robinson v. Robinson, 19 Beav. 494. A lunatic cannot elect, Ashby v. Palmer, 1 Mer. 296 ; Re Wharton, 5 D,M. & G. 33, As to election by a married woman, see Oldham v. Hughes, 2 Atk. 452; Frank v. Frank, 3 M.& ©. 171; May ». Roper, 4 Sim. 360; Briggs v. Chamberlain, 11 Hare, 69; Hobby v. Collins, 4 D. & Sm. 289; Tuer v. Turner, 20 Beav. 560. By a tenant in tail, Benson v. Benson, 1 P. W. 130; Short v- Wood, 1 P, W. 470 ; Edwards v. Countess of Warwick, 2P. W. 173; Trafford v. Boehm, 3 Atk. 440 ; Colwell v. Shadwell, 1 P. Ww. 471; Cunningham v. Moody, 1 Ves. 176. And by a remainder-man, Lingen » Sowray, 1P. W.173; Pultney v. Darlington, 1 Bro. C. C. 223; Crabtree v. Bramble, 3 Atk. 680; Triquet v. Thornton, 13 Ves. 345; Stead ». Newdigate, 2 Mer. 531; Gillies v. Longlands, 4D. & Sm. 372, on 418 EQUITY JURISPRUDENCE. 1000. Where an estate is directed to be sold, and the money arising from the sale to be divided among several persons, none of them have a right to say that any part shall not be sold, and elect to take his share in land ; for to allow election in such a case, would be injuriousto the sale of the entirety(a). But if money be directed to be laid out in land, to the use of several persons as tenants in common, any one of them may elect to take his share of the money, for the residue of the money may be quite as advantageously invested in the pur- chase of land as the whole(b). 1001. Where the parties are competent to elect, the election may be made either by express declaration or by acts from which an election will be presumed to have been made. An express declaration to elect may be made by parol(c). The presumption that a person has made an election, will arise from very slight circumstances(d). Thus, if a person keeps. land unsold, a presumption will arise that he has elected to take it as land(e). And where the person absolutely entitled to money directed to be laid out in land, receives the money from the trustees, he elects to take it as money(/). CHAPTER XXXIV. APPLICATION OF PURCHASE MONEY. 1002. In cases of trusts, questions formerly often arose, as to (a) Deeth v, Hale, 2 Moll. 317; Smith v. Claxton, 4. Mad. 484, 494; Chalmer v. Bradley, 1 J. & W. 59; Trower v. Knightley, 6 Mad. 134; Holloway v. Radcliffe, 23 Beav. 163, 171. (b) Seeley v. Jago, 1 P. W. 389; Walker v. Denne, 2 Ves. 182. (c) Edwards v. Countess of Warwick, 2 P. W. 174; Pultney v. Lord Darlington, 1 Bro. C. C. 237; Wheldale v. Partridge, 8 Ves, 236. (d) Pultney v. Lord Darlington, 1 Bro. C. C. 238; Van v. Barnett, 19 Ves. 109; Cooksén v. Cookson, 12 Cl. & Fin. 121; Dixon v. Gayfere, 17 Beav. 433. (e) Ashby v. Palmer, 1 Mer. 301; Crabtree v, Bramble, 2 Atk. 688; Inwood wv Twyne, 2 Ed. 148; Davies » Ashford, 15 Sim. 44; Kirkman v. Miles, 13 Ves. 338. See also Griesbach v. Freemantle, 17 Beav. 314. (f) Pultney v. Lord Darlington, 1 Bro, C. C. 238; Trafford v. Boehm, 3 Atk. 440; Rook v. Worth, 1 Ves. 461. APPLICATION OF PURCHASE MONEY. 419 the payment of purchase-money to the trustees, and as to the cases in which the purchaser was bound to look to the due APPLICATION OF PURCHASE-MONEY. 1003. The doctrine was not universally true, that a purchaser having notice of a trust, was bound to see that the trust was in all cases properly executed by the trustee. As applied to the cases of sales, authorized to be made by trustees for parti- cular purposes, the doctrine was not absolute, that the pur- chaser was bound to see that the money raised by the sale was applied to the very purposes indicated by the trust. On the contrary, there were many qualifications and limitations of the doctrine in its actual application to sales both of personal and of real estate(a), 1004. The general principle of courts of equity in regard to the duty of purchasers (not especially exempted by any provision of the author of the trust), in cases of sales of pro- perty, or charges on property under trusts, (for there is no difference, in point of law, between sales and charges,) to see to the application of the purchase-money, is this : that, wher- ever the trust or charge is of a defined and limited nature, the purchaser must himself see that the purchase-money is applied to the proper discharge of the trust ; but, wherever the trust is of a general and unlimited nature, he need notsee to it(b). Thus, if a trust is created to sell for the payment of a portion, or of a mortgage, there the purchaser must see to the appli- cation of the purchase-money to that specified object. If, on the other hand, a trust is created, or a devise is made, ora charge is established, by a party, for the payment of debts generally, the purchaser is exempted from any such obliga- tion(c). (a) Story, s. 1125. (0) 1 Mad. Pr. Ch. 352, 496; 2 Mad. Pr. Ch. 103 ; 1 Powell on Mortgages, ch. 9, p. 214, See Elliott v. Merryman, Barnard, Ch. 78; 2 Atk. 42; Shaw». Borrer, 1 Keen, 574 ; Wood v. White, 4 M, & C. 490, 461, 482. (c) Story, s. 1127; Elliott » Merryman, Barnard, Ch. 78; 2 Atk. 42 ; Shaw v. Borrer, 1 Keen, 574; Walker v, Smallwood, Ambl. 676; Bonney v. Ridgard, 1 Cox, 145; Jenkins v. Hiles, 6 Ves. 654; Braithwaite v. Britain, 1 Keen, 206, 222 ; Ball v, Harris, 4 M. & C. 264; Eland». Eland, 4 M. & C. 420. 420 ‘ EQUITY JURISPRUDENCE. 1005. The personal estate being the primary fund for the payment of the debts of the testator, the purchaser of the whole, or any part of it, is not bound to see that the purchase- money is applied by the executor to the discharge of the debts (a). But it is necessary he should be a bona fide purchaser, without notice, that there are no debts ; and he must not col- lude with the executor in any wilful misapplication of the assets(b). \ 1006. It makes no difference in the application of the gen- eral doctrine as to the personal estate, that the testator has directed his real estate to be sold for the payment of his debts, whether he specifies the debts or not; or that he has made a specific bequest of a part of his personal estate for a particular purpose, or to a particular person, although such specific be- quest is known to the purchaser, if he has no reason to suspect any fraudulent purpose. The ground of this doctrine is, that otherwise, it would be indispensable for a person, before he could become the purchaser of any personal estate, specifically bequeathed, to come into a court of equity to have an account taken of the assets of the testator, and of the debts due from him, in order to ascertain whether it was necessary for the executor to sell; which would be a most serious inconven- ience, and greatly retard the due settlement of estates(c). 1007. Where there is a devise of real estate for the payment of debts generally, or debts and legacies generally, or if the testator merely charges his lands with such payments, and the money is raised by the trustee. by sale or mortgage, the purchaser or mortgagee is not bound to look to the application of the purchase-money(d). (a) Bonney v. Ridgard, 1 Cox, 145 ; Hill v. Simpson, 7 Ves. 152. (b) Ewer v. Corbet, 2 P. W. 149; Keane v. Robarts, 4 Madd. 356; McLeod ». Drummond, 14 Ves. 353 ; 17 Ves. 153. (c) Story, s. 1129; Ewer v. Corbet, 2 P. W. 148; Langley v. Earl of Oxford, Amb. 17. : (d) Williamson v.Curtis, 3 Bro. C. U. 96 ; Powitt v. Guyon, 1 Bro. C. C. 186; Balfour »v. Welland, 16 Ves. 151; Shaw v. Borrer, 1 Keen, 559, 573; Ball». Harris,4M. & C. 269; Eland v. Eland, 4 M. & C. 420; Robinson r. Lowater, 5D. M. & G. 272; Dow- ling v. Hudson, 17 Beav. 248 ; Story v. Walsh, 18 Beav. 559 ; Greetham ». Colton, 34 Beay. 615. APPLICATION OF PURCHASE MONEY. 421 1008. In the case of sales of real estate for the payment of debts generally, the purchaser is not only not bound to look to the application of the purchase-money but, if more of the estate is sold than is sufficient for the purposes of the trust, it will not be to his prejudice(a). 1009. In all these cases, the rule that the purchaser or mort- gagee is not bound to look to the application of the purchase- _ money, is subject to an obvious exception, that, if the pur- chaser or mortgagee is knowingly a party to any breach of trust, by the sale or mortgage, it shall afford him no protec- tion. One obvious example of this is, where a devisee himself has a right to sell, but he sells to pay his own debt, which is a manifest breach of trust, and the party who concurs in the sale is aware or has notice of the fact, that such is its object; for in such a case they are coadjutors in the fraud(b). 1010. But, where in cases of real estate the trust is for the payment of legacies, or annuities, or of specified or scheduled debts, the rule is different, for they are ascertained ; and the purchaser is bound to see that the money is actually applied in discharge of theme). On the other hand, cases may occur where the devise is for the payment of debts generally, and also for the payment of legacies, and then the trust becomes a mixed one. In such a case, the purchaser is not bound to see to the application of the purchase-money ; because to hold him liable to see the legacies paid, would, in fact, involve him in the necessity of taking an account of all the debts and assets(d). 1011. This rule has now a very limited application. By (a) See Spaulding v. Shalmer, 1 Vern. 301; Coxeter, 2 Vern. 302 ; French v. Chi- chester, 2 Vern. 568; Elliott » Merryman, Barnard, 78 ; Shaw v. Borrer, 1 Keen, 559, 574; Ball v. Harris, 4 M. & C. 264; Eland v. Eland, 4 M. & C. 420. (3) Story, s. 1131 a; Eland v. Eland, 4 M..& C. 420, 427 ; Watkins v. Cheek,28.& - S. 199. (c) Elliot y. Merryman, 2 Atk. 41; Horn v. Horn, 2 S. & S. 448; Colclough v. Sterum, 3 Bligh, 181. (d) Story, s. 1182; Rogers v. Skillicome, Ambl. 188 ; Eland v. Eland, 4M. & C. 420; Watkins v. Cheek, 2S. & S, 199; Johnson v. Kennett, 6 Sim. 384; 3M. & K. 624. 422 EQUITY JURISPRUDENCE. statute(a), the bona fide payment of any money to, and the re- ceipt thereof by any person to whom the same is payable, upon any express or implied trust, or for any limited purpose, and such payment to, and receipt by, the survivors or survivor of two or more mortgagees or holders, or the executors or ad- ministrators of such survivor, or -their or his assigns, shall effectually discharge the person paying the same from seeing to the application, or being answerable for the misapplication thereof, unless the contrary be expressly declared by the in- strument creating the trust or security(b). CHAPTER XXXV. IMPLIED TRUSTS. 1012. IMPLIED TRUsTS(c) may be divided into two general classes: first, those which stand upon the presumed intention of the parties; secondly, those which are independent of any such intention, and are forced upon the conscience of the party by operation of law; among the latter are cases of meditated fraud, imposition, notice of an adverse equity, and other cases (a) Con, Stat. U. C. c. 90,8. 9. (b) See Bennett v. Lytton, 2J. & H. 158. (c) See Cook v. Fountain, 3 Swanst. 585. Lord Nottingham’s judgment in that case contains a classification of trusts, and of the general principles which regulate im- plied trusts. ‘‘ All trusts (said he) are either, first, express trusts, which are raised and created by act of the parties ; or implied trusts, which are raised or created by act or construction of law. Again ; express trusts are declared either by word or writing ; and these declarations appear, either by direct and manifest proof, or violent and ne- cessary presumption. These last are commonly called presumptive trusts ; and that is, when the court, upon consideration of all circumstances, presumes there was a declaration, either by word or writing, though the plain and direct proof thereof be not extant. In the case in question, there is no pretence of any proof that there was a trust declared, either by word or in writing ; so the trust, if there be any, must either be implied by the law, or presumed by the court, There is one guod, general, and in- fallible rule, that goes to both these kinds of trusts. It is such a general rule as never deceives ; a general rule to which there is no exception , and thatis this: the law never implies, the court never presumes, a trust, but in case of absolute necessity. ‘he rea- son of this rule is sacred ; for if the Chancery do once take liberty to construe a trust by implication of law, or to presume a trust unnecessarily, a way is opened to the Lord Chancellor to construe or presume any man in England out of his estate. And so, at last, every case in court will become casus pro amico.” IMPLIED TRUSTS, 423 of a similar nature. It has been said that the law never im- plies, and equity never presumes, a trust, except in case of absolute necessity(a). Perhaps a more correct exposition of the general rule would be, that a trust is never presumed or implied, as intended by the parties, unless, taking all the cir- cumstances together, that is the fair and reasonable interpre- tation of their acts(b). 1013. The most simple form, perhaps, in which such an im- plied trust can be presented, is that of money, or other pro- perty, delivered by one person to another, to be by the latter paid or delivered over to, and for the benefit of, a third person. In such a case the party recejving the money, or other pro- perty, holds it upon a trust, necessarily implied from the nature of the transaction, in favour of such beneficiary, although no express agreement has been entered into, to that effect(c). But even here, the trust is not, under all circumstances, abso- lute ; for if the trust is purely voluntary, and without any con- sideration, and the beneficiary has not become a party to it by his express assent after notice of it, it is revocable; and if re- voked, then the original trust is gone, and an implied trust results in favour of the party who originally created it(d)~ 1014. Another form in which a resulting trust may appear, is, where there are certain trusts created either by will or deed, which fail in whole or in part; or which are of such an inde- finite nature that courts of equity will not carry them into effect ; or which are illegal in their nature and character ; or which are fully executed, and yet leave an unexhausted resi- duum. In all such cases, there will arise a resulting trust to the party creating the trust, or to his heirs and legal repre- sentatives, as the case may require(e). (a) Cook v. Fountain, 3 Sw. 591, 592. (b) Story, s. 1195. (c) Com. Dig. Chan., 4 W. 5. (d) Story, s. 1196 ; Linton v. Hyde, 2 Mad. 94; Priddy v. Rose, 3 Mer. 102; Dearle v, Hall, 3 Russ. 1; Loveridge v. Cooper, 3 Russ. 30 ; Page v. Broom, 4 Russ. 6; Wal- wyn v. Coutts, 3 Mer. 707 ; 3Sim. 14; Garrard v. Lord Lauderdale, 3 Sim. 1 ;2R.& M. 451; Leman v. Whitely, 4 Russ. 427, (0 Stubbs », Sargon, 2 Keen, 255; Ommaney ». Butcher, 1 T. & R. 260, 270, Wood fv. Cox, 2M. & C. 684; 1 Keen, 317; Cook v Hutchinson, 1 Keen, 42, 50. And see Aston v. Wood, L. R. 6 Eq. 419. 424 EQUITY JURISPRUDENCE. , 1015. Where the trusts have all failed, by the death of the cestuis que trust, and the grantor is also dead, without heirs, . making a case for an escheat to the crown, or lord of the manor, if the legal title remained in the grantot, a court of equity has no power to compel the trustee to convey the es- tate to the crown, in order to perfect the right of escheat, but the trustee is entitled to hold the land(a). 1016. Another common transaction, which gives rise to the presumption of an implied resulting use or trust is, where a conveyance is made of land or other property without any consideration, express or implied, or any distinct use or trust stated. In such a case, the intent is presumed to be, that it shall be held by the grantee for the benefit of the grantor, as a resulting trust(b). But if there be an express declaration, that it is to be in trust, or for the use of another person, nothing will be presumed against such a declaration. Andif there be either a good or a valuable consideration, equity will immediately raise a use or trust correspondent to such consi- deration(c), in the absence of any controlling declaration or other circumstances. 1017. The same principle applies to cases where the whole of the estate is conveyed or devised, but for particular objects and purposes, or on particular trusts. In all such cases, if those objects or purposes or trusts, by accident or otherwise fail, and do not take effect; or, if they are all accomplished, and do not’ exhaust the whole property, there a resulting (a) Burgess v. Wheate, 1 W. Black, 123 ; 1 Ed. 177; Fawcet v. Lowther, 2 Ves. 300 ; Middleton v. Spicer, 1 Bro. C. C. 201 ; Walker v. Denne, 2 Ves. 170; Williams v. Lord Lonsdale, 3 Ves. 752 ; Cox v. Parker, 22 Beav. 168. See also Smith v. Spen- cer, 6D. M.& G. 631; Peacock v. Stockford, 7D. M. & G. 129; Dunne v, Dunne, 7D. M. &G. 207 ; Ware v, Watson, 7D. M. & G. 348. (2) 2 Bl. Com. 330; Bac. Abr. Uses and Trusts (1), id. Trusts (C.); Com. Dig- Chan. 4 W. 3. See also Burgess v, Wheate, 1 Ed. 206, 207. (c) Dyer v, Dyer, 2 Cox, 92,93. But see Haigh v. Kaye, L. R. 7 Chan. 469. IMPLIED TRUSTS. 4925, trust will arise, for the benefit of the grantor or devisor and his heirs(a). 1018. Upon similar grounds, where a man buys land in the name of another, and pays the consideration money, the land will generally be held by the grantee in trust for the person who so pays the consideration(b). The same doctrine is applied tocases where securities are taken in the name of another peyr- son. As if A. takes a bond in the name of B., for a debt due to himself, B. will be a trustee of A. for the money(c). 1019. But this doctrine is strictly limited to cases where the purchase has been made in the name of one person, and the purchase-money has been paid by another. For, where a man employs another person by parol as an agent, to buy an estate for him, and the latter buys it accordingly in his own name, and no part of the purchase-money is paid by the prin- -cipal; there, if the agent denies the trust, and thereis no written agreement or document establishing it, he cannot, by a suit in equity, compel the agent to convey the estate to him ; for that would be directly in the teeth of the statute of frauds (d). 1020. There are also other exceptions to the doctrine of a resulting or implied trust, even where the principal has paid the purchase-money. Thus, where A. took a mortgage in the, (a) Story, x. 1200 ; Cruse v. Barley, 3 P. W. 20}; Ripley v. Waterworth, 7 Ves. 425, 435; Hobart v. Countess of Suffolk, 2 Vern. 644 ; Hill v. Bishop of London, 1 Atk.618 ; Robinson v. Taylor, 1 Ves. 44; 8. c. 2 Bro. C. C. 589; Stanfield v. Habergham, 10 Ves. 273 ; Tregonwell v. Sydenham, 3 Dow, 194; Chitty », Parker, 2 Ves. 271. And see Re Sanderson, 3 K. & J. 497 ; Clarke v. Hilton,L. R. 2 Eq. 810; Longley v. Longley, L. B. 13 Eq. 133. (b) Com. Dig. Chan. 3 W.3; Co. Litt. 290; Butler’s note (T), s. 8; Bac. Abr. Uses (1); id. Trust (C); Young v. Peachey, 2 Atk. 256 ; Lloyd »v. Spillet, 2 Atk. 150; Scott x. Fenhoullet, 1 Bro. C. C. 69, 70; Lane v, Dighton, Ambl. 409, 411; Finch », Finch, 15 Ves.50 ; Mackreth v. Symmons, 15 Ves. 350; Wray v. Steele, 2 V.& B. 388. (c) Ebrand v. Dancer, 2 Ch. Cas. 26; 1 Eq. Abr. 382, pl. 11; Lloyd v. Read, 1 P. W. 607 ; Rider v, Kidder, 10 Ves. 366. (a) Story, x. 1201a; Bartlett v. Pickersgill, 1 Ed. 515; 4 East, 577, note ; Sug. V. & P.703. See also Rastell x. Hutchinson, 1 Dick. 44; Rex. Boston, 4 East, 572; Crop v, Norton, 2 Atk. 74; 9 Mod. 233; Fell ». Chamberlain, 2 Dick. 484 ; Braddock v. Derisley, 1 F. & F. 60; Lincoln ». Wright, 4D. & J.16; Inskip’s case, 3 Giff. 359. And see Morley v. Davison, 20 Gr. 98. 426 EQUITY JURISPRUDENCE. name of B., declaring that he intended the mortgage to be for B.’s benefit, and that the principal, after his own death, should be B.’s$ and A. received the interest therefor during hig life- time ; it was held that the mortgage belonged to B. after the death of A(a). So, ifa parent should purchase in the name of a son, the purchase would be deemed, prima facie, intended as an advancement, so as to rebut the presumption of a resulting trust for the parent(b). But this presumption, that it is an advancement, may be rebutted by evidence manifesting a clear intention, that the son shall take as a trustee(c). 1021. The moral obligation of a parent to provide for his children, is the foundation of this exception, or rather of this rebutter of a presumption; since it is not only natural, but reasonable in the highest degree, to presume, that a parent, purchasing in the name of a child, means a benefit for the latter, in discharge of his moral obligation, and also as a token of parental affection. This presumption in favour of the child, being thus founded in natural affection, and moral obli- gation, ought not to be frittered away by nice refinements(d). It is, perhaps, rather to be lamented, that it has been suffered to be broken in upon by any sort of evidence of a merely cir- cumstantial nature(e).~ 1022. The same doctrine applies to the case of securities ‘taken in the name of achild.-The presumption is, that it - is intended as an advancement, unless the contrary is estab- lished in evidence(£). And the like presumption exists in the case of a purchase by a husband in the name of his wife, and of securities taken in her name(g). (a) Benbow v. Townsend, 1M. & K. 506.~ (6) Sidmouth v. Sidmouth, 2 Beav. 447. (c) Sidmouth v. Sidmouth, 2 Beav, 447 ; Scawin v. Scawin, 1 Y. & C. 65. (d) Finch v. Finch, 15 Ves. 50; Dyer v. Dyer, 2 Cox, 93, 91; Lord Gray v. Lady Gray, 1 Eq. Abr, 381. (e) Story, s. 1203. (f) Ebrand v. Dancer, 2 Ch. Cas. 26; s. c. 1 Eq. Abr.'382, pl. 11; Lloyd v, Read, 1 P. W. 607; Rider v. Kidder, 10 Ves. 366; 2 Mad. Pr. Ch. 101; Scawin v. Scawin, 1 Y. & C. 65. (g) Story, 1204. And see Crabb v. Crabb, 1M. & K. 511, But see Owen v. Kennedy, 20 Gr. 163. IMPLIED TRUSTS. 427 1023. Where real estate is purchased for partnership pur- poses, and on partnership account, it is wholly immaterial in the view of a court of equity, in whose name or names the purchase is made, and the conveyance is taken; whether in the name of one partner, or of all the partners, whether in the name of a stranger alone, or of a stranger jointly with one partner. In all these cases, let the legal title be vested in whom it may, it is in equity deemed partnership property, not subject to survivorship; and the partners are deemed the cestuts que trust thereof(a).— 1024. But although, generally speaking, whatever is pur- chased with partnership property, to be used for partnership purposes, is thus treated as a trust for the partnership, in whosever name the purchase may be made; yet there may be cases in which, from the nature of the thing purchased, the partner in whose name it is purchased, may, upon a dissolu- tion of the partnership, be entitled to hold it as his own, so that it will be trust property swb modo only. Thus, an office may be purchased, or a license obtained in the name of a partner out of the partnership funds (as a stockbroker’s license) to be used during the continuance of the partnership for partnership purposes, by the person obtaining the same. But it will not follow that, upon the dissolution of the partnership, such partner is to hold the same, and act as a stock-broker, or as the case may be, for the benefit of the other part- ners(b). 1025. Another illustration of the doctrine of implied and resulting trusts arises from the appointment of an executor of a last will and testament. In cases of such an appointment, the executor is entitled, both at law and in equity (for in this respect equity follows the law), to the whole surplus of the personal estate, after payment of all debts and charges, for his (a) Bell », Phyn, 7 Ves. 453; Ripley v. Waterworth, 7 Ves. 423, 435 ; Balmain v. Shore, 9 Ves. 500; Lake ». Craddock, 3 P. W. 158; Jackson v. Jackson, 9 Ves. 591, 598, 594, 597 ; Selkrig v. Davies, 2 Dow, 231: Fawcett ». Whitehouse, 1R. & M. 182. (8) Story, s. 1207 a; Clarke v. Richards, 1 Y. & C. Ex. 351, 384, 385. 428 EQUITY JURISPRUDENCE. own benefit, unless it is otherwise disposed of by the testator (a). But courts of equity lay hold of any circumstances which may prevent the operation of the general rule. If it can be collected from any circumstance or expression in the will, that the testator intended his executor to have only the office and not the beneficial interest, such intention will receive effect, and the executor will be deemed a trustee for those on whom the law would have cast the surplus, in cases of a com- plete intestacy(b). (a) 2 Mad. Pr. Ch. 83 to 85; 2 Fonbl. Eq. B. 2, ch. 2, 8. 5, note (z); Jeremy on Eq. B. 1, ch. 1, s.2, p. p. 122 to 129. (b) 2 Fonbl. Eq. B. 2, ch. 5, s. 3, note (k); 2 Mad. Pr. Ch. 83, 84. (1) As the exclu- sion of the executor from the residue is to be referred to the presumed intention of the testator, that he should not take beneficially, an express declaration, that he should take as trustee, will of course exclude him, Pring v. Pring, 2 Vern. 99; Graydon v. Hicks, 2 Atk. 18; Wheeler v. Sheers, Mosely, 288, 301; Dean +. Dalton, 2 Bro. C.C. 634 ; Bennett v. Bachelor, 3 Bro. C. C. 28; 1 Ves. 63; and the exclusion of one ex- ecutor as a trustee will consequently exclude his co-executor, White v. Evans, 4 Ves. 21, unless there be evidence of a contrary intention, Williams v. Jones, 10 Ves, 77 ; Pratt v. Sladden, 14 Ves. 193 ; Dawson v. Clark, 15 Ves. 416 ; and a direction to reim- burse the executors their expenses is sutticient to exclude them, Dalton v. Dean, 2 Bro. C. C. 684. (2) Where the testator appears to have intended by his will to make an express disposition of the residue, but by some accident or omission such disposition is not perfected at the time of his death, as, where the will contains a residuary clause, but the name of the residuary legatee is not inserted, the executor shall be excluded from the residue, Bp. of Cloyne v. Young, 2 Ves. 91; Lord North v. Pardon, 2 Ves. 495; Hornsby v. Finch, 2 Ves. 78; Oldham v. Carleton, 2 Cox, 400. (3) Where the testator has by his will disposed of the residue of his property, but, by the death of the residuary legatée, in the lifetime of the testator, it is undisposed of at the time of the testator’s death, Nichols v. Crisp, Amb. 769; Bennett v. Bachelor, 3 Bro. C. C. 28. (4) The next class of cases in which an executor shall be excluded from the resi- due, is, where the testator has given him a legacy expressly for his care and trouble, which, as observed by Lord Hardwicke in Bp. of Cloyne v. Young, 2 Ves. 97, is a very strong case for a resulting trust, not on the foot of giving all and some, but that it was evidence that the testator meant him, as a trustee for some other, for whom the care and trouble should be, as it could not be for himself,.Foster v. Munt, 1 Vern. 473; Rachfield v. Careless, 2 P. W. 157; Cordell v. Noden, 2 Vern. 148 ; Newstead v. John- stone, 2 Atk. 46. (5) Though the objection to the executor'’s taking part and all, bas been thought a very weak and insufficient ground for excluding him from the residue, as the testator might intend the particular legacy to him in the case of the personal estate falling short, yet it has been allowed to’ prevail ; and it is now a settled rule in equity that, if a sole executor has a legacy generally and absolutely given to him, (for if given under certain limitations, which will be hereafter considered, it will not ex- clude,) he shall be excluded from the residue, Cook v. Walker, cited 2 Vern. 676 ; Joslin ». Brewitt, Bunb. 112; Davers v. Dewes, 3 P. W. 40; Farrington v. Knightly, 1 P. W. 544; Vachell v. Jeffries, Prec. Ch. 170; Petit v, Smith, 1 P. W.7. Nor will the circumstances of the legacy being specific be sufficient to entitle him, Randall v. Beo- key, 2 Vern. 425; Southcot v, Watson, 3 Atk. 229; Martin v. Rebow, 1 Bro. C.C. 154 ; Nesbit v, Murray, 5 Ves. 149. Nor will the testator’s having bequeathed lega- ‘ IMPLIED TRUSTS. 429 ‘ 1026. In like manner, at law, a testator, by the appointment of his debtor to be his executor, extinguishes his debt, and it cannot be revived ; although a debt due by an administrator would only be suspended. The reason of the difference is, that the one is the act of the law, and the other is the act of the party(a). But in equity, a debt due by an executor is not extinguished ; and it will go to the same party who would be cies to his next of kin, vary the rule, Bayley v. Powell, 2 Vern. 361 ; Wheeler v, Sheers, Mos. 288 ; Andrew »v. Clark, 2 Ves. 162, for the rule is founded rather on a presump- tion of intent to exclude the executor, than to create a trust for the next of kin ; and, therefore, if there be no next of kin, a trust shall result for the crown ; Middleton x. Spicer, 1 Bro. C. C. 201. (6) Where the testator appears to have intended to dispose of any part of his personal estate, Urquhart v. King, 7 Ves. 225. (7) Where the resi- due is given to the executors, as tenants in common, and one of the executors dies, whereby his share lapses, the next of kin, and not the surviving executors, shall have the lapsed share, Page v. Page, 2 P. W. 489; 1 Ves. 66, 542. With respect to co- executors, they are clearly within the first three stated grounds, on which a sole execu- tor shall be excluded from the residue. And as to the fourth ground of exclusion, it seems to be now settled, that a legacy, given to one executor, expressly for his care and trouble, will, though no legacy be given to his co-executors, exclude, White v. Evans, 4 Ves. 21. As to the fifth ground of exclusion of a sole executor, several pointsof distinc- tion are material in its application to co-executors. - A sole executor is excluded from the residue by the bequest of a legacy, because it shall not be supposed that he was in- ' . tended to take part and all. - But, if there be two or more executors, a legacy to one is not within such objection, for the testator might intend a preference to him pro tanto, Colesworth v. Brangwin, Prec. Ch. 323; Johnson v. Twist, cited 2 Ves. 166; Buffar v. Bradford, 2 Atk. 220. So, where several executors have unequal legacies, whether pecuniary or specific, they shall not be théreby excluded from the residue, Brasbridge v. Woodroffe, 2 Atk. 69; Bowker v. Hunter, 1 Bro. C. C. 328; Blinkhorn ». Feast, 2 Ves. Sen. 27, But, where equal pecuniary legacies are given to two or more executors, a trust shall result for those on whom, in case of an intestacy, the law would have cast it, Petit v. Smith, 1 P. W.7; Carey v. Goodinge, 3 Bro. C. C.110; Muckleston v, Brown, 6 Ves. 64. But see Heron v. Newton, 9 Mod.11. Qu. Whether distinct, specific lega- cies, of equal value to several executors, will exclude them? It now remains to con- sider, in what cases an executor shall not be excluded from the residue. Upon which it may be stated, as a universal rule, that a court of equity will not interfere to the pre- judice of the executor’s legal right, if such legal right can be reconciled with the inten- tion of the testator, expressed by, or to be collected from, his will. And, therefore, even the bequest of alegacy to the executor shall not exclude, if such legacy be con- sistent with the intent, that the executor shall take the residue ; as, where a gift to the executor is an exception out of another legacy, Griffith v. Rogers, Prec, Ch. 231; New- stead v. Johnstone, 2 Atk. 45; Southcot v. Watson, 3 Atk. 229. Or, where the ex- ecutorship is limited to a particular period, or determinable on a contingency, and the thing bequeathed to the executor, upon such contingency taking place, is bequeathed over, Hoskins v. Hoskins, Prec. Ch. 263. Or where the gift is only a limited interest, as for the life of the executor, Lady Granville v. Duchess of Beauford, 1 P. W. 114; Jones v. Westcombe, Prec. Ch. 316; Nourse v. Finch, 1 Ves. 356. (a) Hudson v. Hudson, 1 Atk. 461. 430 EQUITY JURISPRUDENCE. entitled to the surplus estate, if the debt were due from a third person(a). 1027. Another illustration of the doctrine of implied trusts arises from acts done by trustees, apparently within the scope and objects of their duty. Thus, if a trustee, authorized to purchase lands for his cestuis que trust, or beneficiaries, should purchase lands with the trust money, and take the conveyance in his own name, without any declaration of the trust, a court of equity would, in such a case, deém the property to be held as a resulting trust for the persons beneficially entitled there- to(b). For, in such a case, a court of equity will presume that the party meant to act in pursuance of his trust, and not in violation of it. So, where a man has covenanted to lay out money in the purchase of lands, if he afterwards purchases lands to the amount, they will be affected with the trust; for it will be presumed, at least until the contrary absolutely ap- pears, that he purchased in fulfilment of his covenant(c). 1028. In every such case, however, it must be clear, that the land has been paid for out of the trust money; and if this appears, a trust will be implied, not only when the party may be presumed to act in execution of the trust, but even when the investment is in violation of the trust. For, in every such case, where the trust money can be distinctly traced, a court of equity will fasten a trust upon the land in favour of the per- sons beneficially entitled to the money(d). 1029. Upon grounds of an analogous nature, the general doctrine proceeds, that, whatever acts are done by trustees in (a) Hudson v. Hudson, 1 Atk. 461; Phillips v. Phillips, 1 Ch. Cas. 292; Brown v. Selwin, Cas. t. Talb. 240. (6) Deg. v Deg, 2 P. W. 414; Lane v. Dighton, Ambl.409; Perry v. Phellips, 4 Ves. 107 ; 17 Ves. 173 ; Bennett v. Mayhew, cited 1 Bro. C. C. 232 ; 2 Bro. C. C, 287. (c) Sowden v. Sowden, 1 Cox, 165; s.c.1 Bro. C. C. 582; Wilson »v. ‘Foreman, 1 Dick. 593 ; s. c. cited and commented on in 10 Ves. 519; Lench v. Lench, 10 Ves. 516 ; Gartshore v. Chalie, 10 Ves. 9; Lewis v. Madocks, 17 Ves. 58; Perry v. Phellips, 17 Ves. 173; Savage v. Carroll, 1 B. & B. 265 ; Waite v. Horwood, 2 Atk. 159. (@) Story, s. 1210; Taylor v. Plumer, 3 M. & S. 562; Liebman v. Harcourt, 2 Mer. 513 ; Chedworth v. Edwards, 8 Ves. 46; Ryall v. Ryall, 1 Atk. 59; Ambl. 412, 413; Lane v. Dighton, Ambl. 409 ; Bennett v. Mayhew, cited 1 Bro. C. C: 232; 2 Bro. VU. C. 287; Buckeridge v. Glasse, Cr. & Ph. 126. IMPLIED TRUSTS. 431 regard to the trust property, shall be deemed to be done for the benefit of the cestud que trust, and not for the benefit of the trustee. If, therefore, the trustee makes any contract, or does any act in regard to the trust estate for his own benefit, he- will, nevertheless, be held responsible therefor to the cestuc que trust, as upon an implied trust. Thus, if a trustee should purchase a lien or mortgage on the trust estate, at a discount,. he cannot avail himself of the difference, but the purchase: will be held a trust for the benefit of the cestui que trust(a). So, if a trustee should renew a lease of the trust estate, he would be held bound to account to the cestui que trust for all advantages made thereby(b). And, if a trustee misapplies the funds of the cestui que trust, the latter has an election either to take the security, or other property in which the funds were wrongfully invested, or to demand repayment from the trustee: of the original funds(c). 1030. The same principle will apply to persons standing in other fiduciary relations to each other. Thus, if an agent,.who. is employed to purchase for another, purchases in his own name, or for his own account, he will be held to be a trustee. of the principal at the option of another. So, if he is employed to purchase up a debt of his principal, and he does so at an undervalue or discount, the principal will be entitled to the benefit thereof, in the nature of a trust(d). Sureties who pur- chase up the securities of the principal on which they are sureties, are subject to the same rule, and the principal will be entitled to the benefit of every such purchase at the price given for them(e). 1031. By that class of implied trusts arising from what are properly called equitable liens, are to be understood suchliens as ‘exist in equity, and of which courts of equity alone take cog- (a) Moret v. Paske, 2 Atk. 54; Forbes v. Ross, 2 Bro, C, C. 430. (0) Griffin v. Griffin, 18. & L. 352; James v. Dean, 11 Ves. 392; Nesbitt v. Trede- nick, 1B. & B. 46, 47. (c) Boyd’s case, 1‘D. & J. 223, (2) Lees-v. Nuttal, 1 R. & M. 53; s.c. Tamlyn, 382 ; Carter v. Palmer, 11 Bligh, 397, 418, 419, (e) Story, s 1211 a; Reed v. Norris, 2M. & C. 361, 374, 432 EQUITY JURISPRUDENCE. nizance. A lien is not, strictly speaking, either a jus in re, or jus.ad rem; that is, it is not a property in the thing itself; nor does it constitute a right of action for the thing. It more pro- perly constitutes a charge upon the thing(a). 1032. At law, a lien is usually deemed to be a right to ‘pos- sess and retain a thing until some charge upon it is paid or removed(b). There are few liens which at law exist in rela- tion to real estate. The most striking of this sort undoubtedly is, the lien of ajudgment creditor upon the lands of his debtor. But this is not a specific lien on any particular land, it is a general lien over all the real estate of the debtor, to be en- forced by an elegit or other legal process, upon such part of the real estate of the debtor as the creditor may elect(c). 1033. In respect to personal property, a lien is generally (perhaps, in all cases, with the exception only of certain mari- time liens, such as seaman’s wages, and bottomry bonds) recognized at law to exist only when it is connected with the possession, or the. right to possess, the thing itself Where the possession is once voluntarily parted with, the lien is ordi- narily, at law, gone(d). Thus, for example, the lien on goods for freight, the lien for the repairs of domestic ships, and the lien on goods for a balance of accounts, are all extinguished by a voluntary surrender of the thing to which they are at- tached(e). Liens at law generally arise, either by the express agreement of the parties, or by the usage of trade, which amounts to an implied agreement, or by a mere operation of law(f). 1034. In enforcing liens at law, courts of equity are, in gen- eral, governed by the same rules of decision as courts of law, (a) Brace v. Duchess of Marlborough, 2 P. W,. 491; Ea parte Knott, 11 Ves. 617. (b) Ex parte Haywood, 2 Rose, 355, 357. (c) Averall v. Wade, Ll. & G. t. Sug. 252. (d) Haywood v. Waring, 4 Camp. 291 ; Hollis v. Claridge, 4 Taunt. 807; Chase 2. Westmore, 5M. & S. 180; Hansom v. Meyer, 6 East, 614; Hartley v. Hitchcock, 1 Starkie, 408 ; Dodsley v. Varley, 12 Ad. & El. 632. (e) Ex parte Deez, 1 Atk, 228; Ex parte Shank, 1 Atk. 234; Franklin v. Hosier, 4 Barn. & Ald. 341; Ex parte Bland, 2 Rose, 91. (f) Story, s. 1216. IMPLIED TRUSTS. 433 with reference to the nature, operation, and extent of such liens(a). But in some special cases, courts of equity will give aid to the enforcement and satisfaction of liens in a manner utterly unknown at law(b). Thus, equity will enforce the security of a judgment creditor against the equitable interest in the freehold estate of his debtor, treating the judgment as in the nature of a lien upon such equitable interest. But in all cases of this sort, the judgment creditor must have pursued the same steps, as he would have been obliged to do, to per- fect his lien, if the estate had been legal. Thus, if he seeks relief in equity against the equitable freehold estate of his debtor, it is indispensable for him first to sue out execution at law. And not only must the suing out of process be proved, but it must also be averred in the bill, otherwise the latter will be demurrable(c). 1035. But there are liens recognized in equity, whose exist- ence is not known nor obligation enforced at law, and in respect to which, courts of equity exercise a very large and salutary jurisdiction(d). In regard to these liens, it may be generally stated, that they arise from constructive trusts. They are, therefore, wholly independent of the possession of the thing to which they are attached, as a charge or incumbrance ; and they can be enforced only in courts of equity. The usual course of enforcing a lien in equity, if not discharged, is by a sale of the property to which itis attached(e). Thus the ven- dor of land has a lien on the land for the amount of the pur- chase-money, not only against the vendee himself, and his heirs, and other privies in estate, but also against all subse- quent purchasers having notice that the purchase-money remains unpaid(/). To the extent of the lien the vendee be- (2) Gladstone v. Birley, 2 Mer. 403 ;-Oxenham v, Esdaile, 2Y. & J. 500. (6) See Robinson v. Tonge, 3 P. W. 398, 491; Stileman v. Ashdown, Ambl. 13 ; Tyndale v. Warre, Jac. 212 ; Moore v. Clarke, 11 Gr. 497. - c) Neate v. Duke of Marlborough, 3 M. & ©. 407, 415. (d) Gladstone v. Birley, 2 Mer. 403. (ce) Neate v. Duke of Marlborough, 3 M. & C. 407, 415. (f) Burgess v. Wheate, 1 W. Bl, 150; 8. c. 1. Ed. 210; Mackreth v. Symmons, 15 Ves. 329, 337, 339, 342; Hughes v. Kearney, 1S. & L. 132 Daniels v. Davidson 16 Ves, 249; e.0. 17 Ves. 433. 28 434 EQUITY JURISPRUDENCE. comes a trustee for the vendor; and his heirs, and all other persons claiming under them, with such notice, are treated as in the same predicament(a). 1036. This lien of the vendor of real estate for the purchase- money, is wholly independent of any possession on his part ; and it attaches to the estate, as a trust, equally, whether it be actually conveyed, or only be contracted to be conveyed(b). Although it has been objected, that the creation of such a trust by courts of equity is in contravention of the policy of the statute of frauds(c), the doctrine is now too firmly estab- lished to be shaken by any mere theoretical doubts(d). Courts of equity have proceeded upon the ground, that the trust, being raised by implication, is not within the purview of that statute, but is excepted from it. 1037. The principle upon which courts of equity have pro- ceeded in establishing this lien in the nature of a trust is, that a person who has gotten the estate of another, ought not, in conscience, as between them, to be allowed to keep it, and ,not to pay the full consideration money. A third person, haying full knowledge that the estate had been so obtained, ought not to be permitted to keep it without making such payment, for it attaches to him, also, asa matter of conscience and duty. It would otherwise happen that the vendee might put another person into a predicament, better than his own, with full notice of all the facts(e). 1038. Generally speaking, where the purchase money is unpaid, the lien of the vendor exists, and the burden of proof is on the purchaser to establish that, in the particular case, it (a) Story, x. 1217, But see now the Registry Act, Ont. Stat. 31 Vic. c. 20, s, 68. (b) Smith v. Hubbard, 2 Dick. 730 ; Dodsley v. Varley, 12 Ad. & El. 632, 633. (c) Stat. 29 Charles IT. v. 3. (a) Mackreth v. Symmons, 15 Ves. 339. (&) Story, ». 1219. See Mackreth v. Symmons, 15 Ves. 340, 347, 349, And see Nairn v. Prowse, 6 Ves. 752 ; Chapman v. Tanner, 1 Vern. 267 ; Blackburne v. Greg- son, 1 Bro. C. C, 424. IMPLIED TRUSTS. 435 has peen intentionally displaced, or waived by the consent of the parties(a). 1039 The taking of a security for the payment of the pur- chase-money, is not, in every case, a waiver or extinguishment of the lien. Thus, the taking a bond or note, or even bills of exchange, drawn on and accepted by a third person, or by the purchaser and a third person, has been deetied no waiver of the lien, but merely a mode of payment(b). But where a ven- dor takes a mortgage upon the land, or on part of it, or on another estate, it has been held that his lien is waived(c). 1040, The lien of the vendor exists against the vendee, and against volunteers, and purchasers under him with notice. But it does not exist against purchasers under a conveyance of the legal estate made bona fide, for a valuable consideration without notice, if they have paid the purchase-money(d). And by the recent Registry Act(e), no equitable lien, charge, or interest affecting land, is to be deemed valid as against a regis- tered instrument executed by the same party, his heirs, or assigns( f ). 1041. A solicitor who has recovered a trust estate on behalf of the trustee, has no lien on the deeds, or on the fund in court, as against the cestuis que trust, as the solicitor can have no (a) Mackreth v. Symmons, 15 Ves. 342, 344, 348, 349 ; Hughes ». Kearney, 1 8. & L. 135, 136; Nairn v. Prowse, 6 Ves. 752. But see Boulton v. Gilespie, 8 Gr. 223, (b) Hughes v, Kearney, 1S. & L. 136, 138; Grant v. Mills, 2 V. & B, 306; Ex parte Peake, 1 Mad. 349; Ex parte Loring, 2 Rose, 79 ; Saunders v. Leslie, 2 B. & B. 514; Blackburne v. Gregson, 1 Cox, 90; 1 Bro. ©. C. 420; Lynn v, Chaters, 2 Keen, 520; Teed v. Carruthers, 2 Y. & C. 40; Colborne ». Thomas, 4 Gr. 102; Rutherford v. Rutherford, 11 Gr. 565. And see Flint v. Smith, 8 Gr. 339. -(c) Bond v. Kent, 2 Vern. 281; 1 8. & L. 135; Capper v. Spotteswood, Taml. 21 ; DeGear »v. Smith, 11 Gr. 570. And see Galt v. Bush, 8 Gr. 360. (@ Sug. V. & P. 680; Cator v, Bolingbroke, 1 Bro. C. C, 302; Mackreth v. Sym- mons,'15 Ves. 336, 339 to 341, 347, 353, 354. And see Blackburne v Gregson, 1 Bro. C. C. 420; Mitford v. Mitford, 9 Ves. 100 ; Grant v. Mills, 2 V. & B. 306; Chapman v. Tanner, 1 Vern. 267; Hx parte Peake, 1 Mad. 356; Fawell v. Heelis, Ambler, 726. (e) Ont. Stat. 31 Vic. c. 20, s. 68. (f) See as to this Act, McDonald v. McDonald, 14 Gr. 183. 436 EQUITY JURISPRUDENCE. higher claim against the deeds, or the fund, than that of his client the trustee(a). 1042. Another species of lien is that which results to one joint owner of any real estate, or other joint property, from repairs and improvements made upon such property for the joint benefit, and for disbursements touching the same. This lien sometimes arises from a contract, express or implied, between the parties, and sometimes it is created by courts of equity, upon mere principles of general justice, especially where any relief is sought by the party who ought to pay his proportion of the money expended in such repairs and improvements(b). 1043. The doctrine of contribution in equity is larger than it is at law ; and, in many cases, repairs and improvements will be held to be, not merely a personal charge, but a lien on the estate itself. Thus, for example, it has been held, that if two or more persons make a joint purchase, and afterwards one of them lays out a considerable sum of money in repairs or improvements, and dies, this will be a lien on the land, and a trust for the representatives of him who advanced it(c). 1044. Courts of equity have not confined the doctrine of compensation, or lien, for repairs and improvements, to cases of agreement or of joint purchase. They have extended it to other cases, where the party making the repairs and im- provements has acted bona fide and innocently, and there has been a substantial benefit conferred on the owner, so that, ex equo et bono, he ought to pay for such benefit(d). Thus, where a tenant for life, under a will, has gone on to finish improve- ments, permanently beneficial to an estate, which were begun by the testator, courts of equity have deemed the expenditure (a) See Francis v. Francis, 5 D. M. & G. 108; Groom v. Booth, 1 Drew. 548; Martindale v. Picquot, 3 K. & J. 317. And see as to set-off, Hx parte Cleland, L. R.2Chan. 125; Inve Bank of Hindostan, L. R.3 Chan. 125. But see Simmonds v. Great Eastern Railw., L. R. 3 Chan. 797. (6) Story, s. 1234, And see Gage v. Mulholland, 16 Gr. 145. (e) Lake v, Craddock, 1 Eq. Abr. 291; 3 P. W. 158. See also, Scott v. Nesbitt, 14 Ves. 444; Hamilton v. Denny, 1 B. & B. 199, (@) See Sug. V. & P. 698. dada IMPLIED TRUSTS. 437 a charge, for which the tenant is entitled to alien(a). So, money bona fide laid out in improvements on an estate by one joint-owner, will be allowed on a bill by the other, if he asks for a partition(). 1045. Another species of tacit or implied trust, or, perhaps, strictly speaking, of tacit or implied pledge or lien, is that of each partner in and upon the partnership property, whether it consists of lands, or stock, or chattels, or debts, as his indemnity against the joint debts, as well as his security for the ultimate balance due to him for his own share of the partnership effects(c). 1046. In the case of partnership property, the joint cre- ditors, in case of insolvency, are deemed in equity to have a right of priority of payment before the private creditors of any separate partner. The joint property is deemed a trust fund, primarily to be applied to the discharge of the partner- ship debts against all persons not having a higher equity. A long series of authorities has established this equity of the joint creditors, to be worked out through the medium of the partners(d) ; that is to say, the partners have aright inter sese, to have the partnership property first applied to the discharge _of the partnership debts, and no partner has any right except to his own share of the residue; and the joint creditors are, in case of insolvency, substituted in equity to the rights of the partners, as being the ultimate cestuis que trust of the fund, to the extent of the joint debts. The creditors, indeed, have no lien; but they have something approaching to a lien, that is, they have a right to sue at law, and by judgment and exe- cution, to obtain possession of the property(e). (a) Hibbert v. Cooke, 1S. & S, 552. But see Floyer v. Banks, L. R. 8 Hq. 115, (6) Swan v. Swan 8 Price, 518. : (ec) Collyer on Partn., 65; West «. Skip, 1 Ves. Sen. 239, 456. (d) Campbell v. Mullett, 2 Sw. 574; West». Skip, 1 Ves. Sen. 237, 455 ; Ex parte Ruffin, 6 Ves. 126; Taylor v. Fields, 4 Ves. 396; Young v. Keighley, 15 Ves. 557. And see Baker v. Dawbarn, 19 Gr. 113. (®) Ex parte Ruffin, 6 Ves. 126; Ex parte Williams, 11 Ves. 3, 5, 6; Ha parte Kendall, 17 Ves. 521, 526. 438 EQUITY JURISPRUDENCE. 1047. The extent of a banker's lien upon securities left with him for special purposes, but in some sense connected with his general business, is one not always easy of determination. Thus, where the customer kept exchequer bills locked up in a box in the bank, of which the officers had the key, he handed them over to the bankers from time to time, for the purpose of being exchanged merely, this being so understood by the bankers. This exchange of the bills was regarded as a special agency, and as giving no control over the bills, for any other purpose, after that was accomplished ; so that in performing this agency the bankers stood in much the same relation to the owner as a messenger employed to procure the exchange; and it was held that no lien for the general balance of account attached(a). But where Dutch bonds were deposited with a broker to cover an advance, the broker having power to sell the bonds when the advance became payable, it was held that the broker had a general lien upon them for the balance of his account(6). 1048. Implied trusts, or perhaps, more properly speaking, constructive trusts, which are independent of any presumed intention of the parties, and are forced upon their conscience by the mere operation of law, may next be considered. 1049. One of the most common cases in which a court of equity acts upon the ground of implied trusts in invitum, is where a party has received money which he cannot consci- entiously withhold from another(c). The receiving of money which cannot consistently with conscience be retained, is in equity sufficient to raise a trust in favour of the party, for whom, or on whose account it was received(d). This is the governing principle in all such cases. And, therefore, when- ever any interest arises, the true question is, not whether . money has been received by a party, of which he could not Pe, Brandao v. Barnett, 12 Cl. & Fin. 787. See also Davis v. Bowsher, 5 T. R. 4 Jones v. Peppercorne, 5 Jur. n. 8. 140; 1 Johns. 430. (c) Com. Dig. Chancery, 2 A. 1; 4 W. 5. (d) 2 Fonbl. Eq. B. 2, ch. 1, 8. 1, note (b). IMPLIED TRUSTS, 439 have compelled the payment, but whether he can now, with a safe conscience, ex ewquo et bono, retain it. Illustrations of this doctrine are familiar in cases of money paid by accident, or mistake, or fraud. And the difference between the pay- ment of money under a mistake of fact, and a payment under a mistake of law, in its operation upon the conscience of the party, presents the equitable qualifications of the doctrine in a striking manner(a). 1050. Another instance, perhaps more comprehensive in its reach, in which courts of equity act by creating trusts in in- vitum, is where a party purchases trust property, knowing it to be such, from the trustee, in violation of the objects of the trust. In sucha case equity forces the trust upon the con- science of the guilty party, and compels him to perform it, and to hold the property subject to it, in the same manner as the trustee himself held it(6). 1051. The only thing to be inquired of in a court of equity, in cases of this sort is, whether the property, bound by the , trust, has come into the hands of persons, either compellable to execute the trust, or to preserve the property for the per- sons entitled to it(c). It is upon this ground that persons, col- luding with the executor or administrator in a known misap- plication ef the assets of the estate, are made responsible for the property in their hands; for they are treated as purchasers with notice, and thus as mere trustees of the parties, who are entitled to the assets, the latter being a trust fund under the administration of the executor or administrator(d). 1052. Upon similar principles, wherever the property of a party has been wrongfully misapplied, or a trust fund has been (a) Story, s. 1255. And see Farmer v. Arundel, 2 W. BI. 824; Moses v. Macfer- land, 2 Burr. 1012; Bize». Dickason, 1 T. R. 185 ; Bilbiev. Lumley, 2 East, 469. (6) See 2 Fonbl. Eq. B. 2, ch. 6, s. 1, note (a); id. s. 2, note (h); Com. Dig. Chan- cery, 4 W. 28; 2 Mad. Pr. Ch. 103, 104; Jeremy on Eq. Jurisd. B. 2, ch. 3, pp. 281, 282; Adair v. Shaw, 1S. & L. 243, 262. (c) Lord Redesdale. in Adair v. Shaw,158. & L. 262. See also Leigh v. Macaulay, LY. &C. Ex, 265, 266. (d) Story, s. 1257 ; Hill v. Simpson, 7 Ves. 166. And see Harford v.*Lloyd, 20 Beav. 310; Ernest v. Croysdill, 6 Jur. n. 8. 740. 440 EQUITY JURISPRUDENCE. wrongfully converted into another species of property, if its identity can be traced, it will be held, in its new form, liable to the rights of the original owner, or cestui que trust(a). The. general proposition, which is maintained both at law and in equity upon this subject, is, that ifany property, in its original state and form is covered with a trust in favour of the princi- pal, no change of ‘that state and form can divest it of such trust, or give the agent or trustee converting it, or those who represent him in right, (not being bona fide purchasers for a valuable consideration without notice), any more valid claim in respect to it, than they respectively had before such change (b). 1053. Where a trustee, or other person, standing in a fidu- ciary relation, makes a profit out of any transactions within the scope of his agency or authority, that profit will belong to his cestui que trust ; for it is a constructive fraud upon the latter, to employ that property contrary to the trust, and to retain the profit of such misapplication ; and by operation of equity, the profit is immediately converted into a constructive trust in favour of the party entitled to the benefit(c). For the same reason a trustee, purchasing the estate of his cestui que trust, is deemed incapable of holding it to his own use; and it, may be set aside by the cestud que trust. Nor is the doctrine confined to trustees, strictly so called. It extends to all other persons standing ina fiduciary relation to the party, whatever that relation may be(d). 1054. There is no rule of equity law applicable to trusts which is more uniformly acted upon by the courts than that (a) Ex parte Dumas, 1 Atk. 232, 233 ; Scott v. Surman, Willes, 400; Burdett v Willett, 2 Vern. 638 ; Griggs v. Cocks, 4 Sim. 438 ; Wilkins 7. Stevens, 1 Y. & C. 431. And as to equity aiding a purchaser who has to surrender his purchase in recovering his money, see Hope v. Liddell, 21 Beav. 183. (6) Taylor v. Plumer, 3M.&58. 574, See Ord v. Noel, 5 Mad. 408 ; Copeman v. Gallant, 1 P. W. 319, 320; Ryall v. Rolle, 1 Atk. 172; Leigh v. Macaulay, 1 Y. & C. Ex. 260, 265; Lench v. Lench, 10 Ves. 511, 517; Lewis » Madocks, 17 Ves. 57; Phayrev. Peree, 3 Dow, 116: Liebman v. Harcourt, 2 Mer. 513. (c) Fawcett v. Whitehouse, 1R. & M. 132, 149; Com. Dig. Chancery, 4 W. 30. (d) Bulkley v. Wilford, 2 Cl. & Fin. 177. But see Imperial Mercantile Credit Assn. v. Coleman, L, R. 6 Chan. 558 ; Whitney v. Smith, L. Bt. 4 Chan. 518. IMPLIED TRUSTS. 441 one who assumes to act in relation to trust property, without just authority, however bona fide may be his conduct, shall be held responsible both for the capital and the income, to the same extent as if he had been de jure trustee. Thus, where the estate of tenant for life was liable to forfeiture upon his. mortgaging the same, and he executed a mortgage to one without the knowledge of those taking under the forfeiture, it was held that such mortgagee was responsible to those en- titled under the forfeiture, from the filing of the bill, at all events, and, beyond that, from the time he had notice of the trusts.creating the forfeiture(«). 1055. And the principle of following trust funds in the hands of a defaulting trustée, applies against the assignees of such trustee as fully as against the trustee himself; and the evidence that the trust fund was acquired on the eve of the bankruptcy, and when the bankrupt was about to abscond with that and his other money, was held not to raise any equity in favour of the assignees or general creditors, as against the owners of the trust fund(b). 1056. In cases of this sort, the cestui que trust is not at all bound by the act of the other party. He has therefore an op- tion to.insist upon taking the property; or he may disclaim any title thereto, and proceed upon any other remedies, to which he is entitled, either im rem or in personam(c). The sub- stituted fund is only liable to his option(d). But he cannot insist upon opposite and repugnant rights. Thus, if a trustee has sold land, in violation of his trust, the beneficiary cannot insist upon having the land, and also the notes given for the purchase-money ; for, by taking the latter, at least, so far as it respects the purchaser, he must be deemed to affirm the sale. On the other hand, by following his title in the land, he repu- diates the sale(e). (a) Hennessey v. Bray, 33 Beav. 96. And see Rolfe». Gregory, 11 Jur. N. 8, 238. (b) Story, s. 1261 d; Frith v, Cartland, 2H. & M. 417 ; 11 Jur. wn. 8.238, (c) Docker ». Somes, 2 M. & K. 655. (d) Watts v. Girdlestone, 6 Beav. 188, 190. (e) Story, s. 1262. 442 _ EQUITY JURISPRUDENCE. 1057. So, where an executor or trustee, instead of executing any trust, as he ought, as by laying out the property, either on well secured real estates, orin government securities, takes upon himself to dispose of it in another manner ; or where, being intrusted with stock, he sells it in violation of his trust ; in every such case, the parties beneficially entitled have an option to make him replace the stock or other property ; or if it is for their benefit, to affirm his conduct, and take what he has sold it for with interest, or what he has invested itin; and, if he has made more, they may charge him with that alee: But they cannot insist upon repugnant claims; such as, for instance, in. the case of a sale of stock, to have the stock replaced, and to have interest (instead of the dividends), or to take the money, and have the dividend, as if.it had remained stock(a). 1058. Wherever a trustee is guilty of a breach of trust, by the sale of the trust property to a bona fide purchaser, for a valuable consideration, without notice, the trust in the pro- perty isextinguished. Butifafterwards he should re-purchase, or otherwise become entitled to the same property, the trust would revive, and re-attach to it in his hands. In equity, even more strongly than at law, the maxim prevails, that no man shall take advantage of his own wrong(b). 1059. Having now gone over most of the important heads of equity, falling under the denomination of express or implied trusts, some of the doctrines, as to the nature and extent of the responsibility of trustees, and as to the remedies, which may be resorted to, for enforcing a due performance of trusts, may be shortly considered. 1060. In a general sense, a trustee is bound by his implied obligation to perform all those acts which are necessary and proper for the due execution of the trust which he has under- (a) ‘Pocock v. Reddington, 5 Ves. 800; Harrison v. Harrison, 2 Atk. 121 ; Bostock v. Blakeney, 2 Bro. C. U. 653 ; Forrest v..Elwes, 4 Ves. 497 ; Earl Powlet », Herbert, 1 Ves. 297; Byrchell v. Bradford, 6 Mad. 235. And see Long v. Stewart, 5 Ves. 800, note; Crackelt v. Bethune, 1 J. & W. 586. ; ‘ (b) Bovey v. Smith, 2 Ca. Cas. 124; 1 Vern. 8t; Com. Dig, Chancery, 4 W. 25. IMPLIED TRUSTS. 443' taken(a). But, as he is supposed merely to take upon himself the trust, as a matter of honour, conscience, friendship, or humanity, and, as he is not entitled to any compensation for his services, at least not without some express or implied stipu-- lation ‘for that purpose(b) ; he would seem, upon the analogous principles applicable to bailments, bound only to good faith and reasonable diligence(c). 1061. The more recent decisions in regard to the extent of the responsibility of agents, bailees, and all similar trustees,. seem to make the question turn more upon the nature of the trust than the fact of its being gratuitous or for compensation. And in view of these, the statement which has sometimes been made, that a trustee of an estate, either real. or personal, who. has the entire management intrusted to him, or even a general supervision, for the benefit of those interested, is only liable for gross’ negligence, can scarcely be considered correct. Whether the service be gratuitous. or not, the duty of the trustee undoubtedly is to perform it, according to his best ability, with such care and diligence as men, fit to be intrusted with such matters, may fairly be expected to put forth in their own business, of equal importance(d). 1062. In respect to the preservation and care of trust pro- perty, it has been said that a trustee is to keep it as, he keeps his own. And, therefore, if he is robbed of money, belonging to his cestui que trust, without his own default or negligence he will not be chargeable. He is even allowed, in equity, to, establish, by his own oath, the amount so lost ; for he cannot possibly, in ordinary cases, have any other proof(e). So, if he should deposit the money with a banker in good credit, to remit it to the proper place by a bill, drawn by a person in (a) Com. Dig. Chancery, 4 W. 25; Fyler v. Fyler, 3 Beav. 550. (0) But see Con. Stat. U. C. c. 16, s, 66; Ont. Stat. 37 Vic. c. 9, as to compensation to executors and trustees under wills; and see, also, Newport ». Bury, 23 Beav. 30. (c) See Bostock v. Floyer, L. R. 1 Eq. 26; Hopgood v. Parkin, L. R. 11 Eq. 74; Sutton ». Wilders, L. R. 12 Eq. 373. (@) Chisholm v. Barnard, 10 Gr. 479. (e) Morley v. Morley, 2 Ch. Cas. 2; Knight.v. Lord Plymouth, 3 Atk. 480; 1 Dick. 120, 127 ; Jones v. Lewis, 2 Ves. 240. i. 444 EQUITY JURISPRUDENCE. ‘due credit, and the banker or drawer of the bill should be- ‘come bankrupt, he would not be responsible(a). 1063. In all cases, however, in which a trustee places money in the hands of a banker, he should take care to keep it sepa- rate, and not to mix it with his own in a common account; for, if he should so mix it, he would be deemed to have treated the whole as his own; and he would be held liable to the cestui que trust for any loss sustained by the banker’s insol- vency(b). If, however, the investment is made with a banker in a manner not authorized by the will, the trustee will be held responsible(c). But, as a general thing, it is said there is no impropriety in the temporary investment of trust money on a deposit note(d). 1064. If a trustee invest trust money in mere personal se- curities, however unexceptionable they may seem to be, in case of any loss by the insolvency of the borrower, he would be held responsible; for, in all cases of this sort, courts of equity require security to be taken on real estate, or on some other thing of permanent value(e). Nay, it will be at the peril of the trustee, if trust money comes to his hands, (such as a debt due from a third person,) to suffer it to remain upon the mere personal credit of the debtor, although the testator, who created the trust, had left it in that very state(/). 1065. In relation to trust property, it is the duty of the trus- tee, whether it be real estate or personal estate, to defend the (a) Knight v. Lord Plymouth, 3 Atk. 480; Jones v. Lewis, 2 Ves. 240, 241; Rowth v. Howell, 3 Ves. 564; Massey v. Banner, 4 Mad. 416, 417, Ex parte Belchier & Par- sons, Ambl. 219; Adams », Claxton, 6 Ves. 226. And see Re Colne Valley & Halstead Co.1D. F. & J.53; Cockburn v. Peel, 7 Jur. x. 8. 310; Harris v. Harris, 29 Beav. 107. But see Sculthorpe v. Tipper, L. R. 13 Eq, 232. (0) Massey v. Banner, 4 Mad. 416, 417; Freeman v. Fairlie, 3 Mer. 29; Clarke v. Tipping, 9 Beav. 284; Cook v. Addison, L. R. 7 Eq. 466. And see Brown». Adams, 21L. T. N. 8.71; Ex parte Kingston, L. R. 6 Chan. 632. (c) Rehden v. Wesley, 29 Beav. 213 ; Whitney v. Smith, I. R. 4 Chan. 513; Fisher v. Gilpin, 38 L. J. vn. 8. Ch. 280. (d) Wilkins v. Hogg, 8 Jur. nN. s, 25. And see Hume v. Richardson, 3 Jur. n. 8. 686. (e) Adye v. Feuilleteau, 1 Cox, 24 ; Ryder v, Bickerton, 3 Sw. 80; 8. c. 1 Ed. 149, note; Holmes v. Dring, 2 Cox, 1 (f) Story, s. 1274; Lowson »v. Copeland, 2 Bro. C. C. 156; Powell w% Evans, 5 Ves. 844; Tebbs v. Carpenter, 1 Mad. 290. IMPLIED TRUSTS. 445: title at law, in case of any suit being brought respecting it; to. give notice, if it may be useful and practicable, of such suit, to: his cestui que trust ; to prevent any waste, or delay, or injury to the trust property; to keep regular accounts(a); to afford ac-- curate information to the cestui que trust of the disposition of the trust property ; and if he has not all the proper informa-. tion, to seek for it, and if practicable, to obtain it(b), Finally, he is to act in relation to the trust property with reasonable: diligence ; and in cases of a joint trust, he must exercise due caution and vigilance in respect to the approval of, and acqui- escence in, the acts of his co-trustees ; for, if he should deliver over the whole management to the others, and betray supine indifference, or gross negligence, in regard to the interests of the cestui que trust, he will be held responsible(c). 1066. These remarks apply to the ordinary case of a trustee, having a general discretion and exercising his powers without any special directions. But where special directions are given by the instrument creating the trust, or special duties are im- posed upon the trustee, he must follow out the objects and intentions of the parties faithfully, and be vigilant in the dis- charge of his duties. There are, necessarily, many incidental duties and authorities, belonging to almost every trust, which are not expressed. But these are to be as steadily acted upon and executed, as if they were expressed, and they must always depend upon the peculiar objects and structure of the trust (d). 1067. The general rule as to interest upon trust funds is, that if a trustee has made interest upon those funds, or ought to have invested them so as to yield interest, he shall, in each case, be chargeable with the payment of interest(¢). In some (2) Freeman v. Fairlie, 3 Mer. 29, 41; Pearse v. Green, 1 J. & W. 185, 140 ;. Adams », Clifton, 1 Russ. 297; Randall ». Burrowes, 11 Gr. 364. (0) Walker ». Symonds, 3 Swanst. 58, 73. ; (c) Story, s. 1275; Oliver v, Court, 8 Price, 127. But see Payne v. Little, 26 Beav.1; Raby v. Ridehalgh, 7 D. M. & G. 104; Bate v. Hooper, 5 D. M. & G.. 338. (d) Story, s. 1276. (e) See Smith ». Roe, 11 Gr. 311. 446 EQUITY JURISPRUDENCE. ‘eases, courts of equity will even direct annual or other rests to be made; the effect of which will be, to give to the cestui que trust the benefit of compound interest. But such an in- terposition requires extraordinary circumstances to justify it (@). 1068. It seems now settled that, if the trustee himself put the trust money into his own business, by which he realizes a profit beyond the rate of interest on the public stocks or other proper securities for the investment of trust funds, or even beyond the legal rate of interest, the cestud que trust is entitled to such profit(b). But if the trustee loan the trust money to others, who know of the breach of trust thus com- mitted, the cestui que trust may follow the money into their hands, but they cannot claim any profits which they may have made beyond legal interest, but are limited to the compensa- tion stipulated by the borrowers, if that is not less than the trustee could have realized on a prudent investment(c). 1069. Payment to the agent of trustees is payment to the trustees(d). And if the agent pay the money, in good faith, to a party not entitled to hold it, whereby it is lost, such agent cannot be made responsible in a separate bill against him alone, without joining the trustees; since it is only through the trustees that such agents are liable at all. But co-trustees are not responsible for the fraud and forgery of one of their number to which they in no way contribute, either directly or remotely(e). | 1070. Where there are several trustees, the question has often arisen, how far they are to be deemed responsible for (a) Raphael »v, Boehm, 11 Ves. 91; s. o. 13 Ves. 407, 590; Dornford v. Dornford, 12 Ves. 127; Foster v. Foster, 2 Bro. C. C. 616; Davis v. May, 19 Ves. 383; Se- vier v. Greenway, 19 Ves. 413; Webber v: Hunt, 1 Mad. 13; Jeremy on Eq. Ju- ‘risd. B. 3, pt. 2, ch. 5, p. 545; 2 Mad. Pr. Ch. 114, 115; Wightman »v. Helliwell, 13 Gr. 330. And see Nelson ». Booth, 5 Jur. nN. 8. 28. (b) See Wightman v. Helliwell, 13 Gr. 330. (c) Story, s, 1277a; Stroud v. Gwyer, 6 Jur. N. 8. 719. See also Dimes ». Scott, 4 Russ. 195; M’Donald v, Richardson, 5 Jur. n. 8.9; Palmer v, Mitchell, 2 M.& K. 672, note. Simpson v. Chapman, 4 D. M. & G. 154, is now overruled. (ad) Robertson v. Armstrong, 28 Beav, 123. (e) Story, s. 1277 £; Barnard v, Bagshaw, 9 Jur. N. 8. 220. IMPLIED TRUSTS. 447. the acts of each other. The general rule is, that they are re- sponsible only for their own acts, and not for the acts of each other(a). And the mere fact, that trustees who are author- ized to sell lands for money, or to receive money, jointly exe- cute a receipt therefor to the party who is debtor or pur- chaser, will not ordinarily make either liable, except for so much of the money as has been received by him(b). 1071. But the rule that a trustee is only liable for his own receipts, does not apply where a trustee assists or enables another trustee to receive the money; as, for instance, by joining with him in a release for the money, although he alone obtain’ possession of the money and invest it in improper securities. And accordingly, on such a state of facts, both trustees will be held responsible for the consequent loss(c). 1072. Itis otherwise with regard to executors, for where there are two executors, each has a several right to receive the debts due to the estate, and all other assets which shall come to his hands; and he is, consequently, solely responsible for the assets which he receives. They are, therefore, not com- pellable to join in receipts, and each is competent, by hisown separate receipt, to discharge any debtor to the estate(d). If, then, they join in a receipt, it is their own voluntary act, and equivalent to an admission of their willingness to be jointly accountable for the money(e). It follows, a fortiori, that, if one executor, after receiving the assets, voluntarily pays them over to the other executor, he becomes responsible for the due application and administration of those assets by the other executor(/). (a) Leigh v. Barry, 3 Atk. 584; Anon. 12 Mod. 560. (b) Brice v. Stokes, 11 Ves. 324; Harden v. Parsons, 1 Ed. 147; Gregory v. Grego- ry, 2¥.& CO. Ex. 316; Sadler v. Hobbs, 2 Bro. C. C. 117; Webb v. Ledsam, 1 K. & J.388. And see Norton ». Steinkoff, Kay, 45. (c) Thompson’v. Finch, 22 Beav. 316. And see as to negligence in looking after the application of the trust fund by a co-trustee, Allan v, Scott, 12 L, T. y. 8. 449 ; Ingle v, Partridge, 32 Beav. 661. (d) See Uharlton v, Earl of Durham, L. R. 4 Chan. 433; Lee v. Sankey, L, R. 15 Eq. 204. 1) Murrell », Cox, 2 Vern. 570; Aplyn v. Brewer, Prec. Ch. 173; Moses v. Levi, 3 Y & C. 359, 367; Hewitt v. Foster, 6 Beav. 259 ; Broadhurst ». Balguy, 1 Y. & C, 16. (f) Townsend v. Barber, 1 Dick. 356. 448 EQUITY JURISPRUDENCE, 1073. If one executor knows that the assets received by the other executor are not applied according to the trusts of the will, or in a due course of administration, and he stands by and acquiesces in it, or suffers the assets to be wasted by such executor, without any effort to require or compel a due exe. cution of the trusts, and a due application of the assets, in the course of the administration thereof, he will be held liable for any waste or misapplication of such assets(a). It will be other- wise, however, if one executor has no knowledge of the re- ceipt, or misapplication, or waste of the assets, by the other(b). 1074. But, although the general rule, in regard to trustees, is that they shall be liable only for their own acts and receipts, yet some distinctions have been indulged in by courts of equity. Thus, it has been said, that, where they join im, a receipt for money, and it is not distinguishable on the face of the receipt, or by other proper proofs, how much has been received by one and how much by the other trustee, it is reasonable to charge each with the whole(c). 1075. Perhaps the truest exposition of the principle which ought, in justice, to regulate every case of this sort, whether it be the case of executors, or of guardians, or of trustees, is, that if two executors, guardians, or trustees, join in’ a receipt for trust money, it is prima facie, although not absolutely, con-_ clusive evidence that the money came to the hands of both. But either of them may show, by satisfactory proof, that his joining in the receipt was necessary, or merely formal, and that the money was, in fact, all received by his companion. And, without such satisfactory proof, he ought to be held jointly liable to account to the cestui que trust for the money, upon the fair implication, resulting from his acts, that he did not intend to exclude a joint responsibility. But, wherever either a trustee, or an executor, by his own negligence or laches, suffers his co-trustee or co-executor to receive and (a) Williams v. Nixon, 2 Beav. 472. (0) Story, s. 1280 a. (c) Fellows v. Mitchell, 1 P. W. 83; 2 Vern. 415, 504. IMPLIED TRUSTS, 449 waste the trust fund or assets of the testator, when he has the means of preventing such receipt and waste, by the exercise of reasonable care and diligence, then, and in such a case, such trustee or executor will be held personally responsible for the loss occasioned. by such receipt and waste of his co-trustee or co-executor(a). 1076. The mere appointment by the trustees of one of them to be the agent or factor of the others for the property, is not of itself such a breach of trust as subjects the other trustees to all the consequences of it, nor does it make them liable as such, for permitting the factor trustee to retain ‘balances in his hands, unless they are guilty of gross negligence. Still, how- ever, by the appointment of such trustee as factor, they be- come liable for his default as agent, although not as trustee, in the same way that they would be liable for the defaults of any other person whom they might appoint to the office. And a trustee, by becoming the factor or cashier of the trust pro- perty, does not thereby incur any additional liability in re- spect to its management beyond what he was subject to as trustee(b). 1077. If, by any positive act, direction, or agreement of one joint exccutor, guardian, or trustee, the trust-money is paid over, and comes into the hands of the other, when it might and should have been otherwise controlled or secured by both, there, each of them will be held chargeable for the whole (c). So, if one trustee should wrongfully suffer the other to retain the trust-money a long time in his own hands, without security ; or should lend it to the other on his simple note ; or should join with the other in lending it to a tradesman upon insufficient security ; in all such cases he will be deemed (a) Story, s. 1283. See also Harvey v. Blakeman, 4 Ves. 596; Crosse v. Smith, 7 244; Scurfield v. Howes, 3 Bro. C. C. 93; Westley v. Clarke, 1.Ed. 357 ; Joy v. Campbell, 1S. & L. 341; Williams ». Nixon, 2 Beav. 472. {t) Horne v. Pringle, 8 CL. & Fin. 264, = 2 (c) Gill v. Att.-Gen., Hardres, 314 ; Lord Shipbrook v. Lord Hinchinbrook, 16 Ves. 479, 480 ; Sadlerv. Hobbs, 2 Bro. C. C. 116 ; Underwood v. Stevens, 1 Mer. 712 ; Adair ». Shaw, 18. & L. 272; Joy $9 Campbell, 1S. & L. 341. 450 EQUITY JURISPRUDENCE. liable for any loss(a). A fortiori, one trustee will be liable, who has connived at, or been privy to, an embezzlement of the trust money by another; or if it is mutually agreed between them that one shall have the exclusive management of one part of the trust property, and the other of the other part(b). 1078. But here it may be important to notice an illustration of the doctrine, that courts of equity administer their aid only, in favour of persons who exercise due diligence to enforce their rights, and are guilty of no improper acquiescence or delay. Hence, if there be a clear breach of trust by a trustee, yet, if the cestwi que trust, has for a long time acquiesced in the misconduct of the trustee, with full knowledge of it, a court of equity will not relieve him; but leave him to bear the fruits of his own negligence or infirmity of purpose(c). 1079. Where there are numerous trustees, the personal res- ponsibility of each, for the acts of the others, must depend much upon his ability to interpose and hinder the others from ‘pursuing the course which resulted in the loss. This will de- pend upon the nature of the trust, and how far the duty and right to act is joint, and incapable of execution, except by the concurrence of all the trustees. In general, this concurrence is required in regard to trusts which are of a private and per- sonal nature. But in regard to such trusts as are of a public nature, the trustees may act by the majority(d). 1080. Courts of equity not only hold trustees responsible for any misapplication of trust property, and any gross negligence or wilful departure from their duty in the management of it ; but they go farther, and in cases requiring such a remedy, remove the‘old trustees and substitute new ones. Indeed, (a) Sadler v. Hobbs, 2 Bro. CU. C. 114; Keble v. Thompson, 3 Bro. C. C. 112 ; Lang- ston v- Ollivant, Coop. t. Eld. 33; Caffrey v. Darby, 6 Ves. 448; Bone v. Cooke, 1 McUlel. 168; Brice v. Stokes, 11 Ves. 319; Chambers v. Minchin, 7 Ves. 197, 198. (b) Story. s. 1284; Gill v. Att.-Gen., Hardres, 314 ; Boardman v. Mosman, 1 Bro. C. C. 68 ; Bate v. Scales, 14 Ves. 402 ; Oliver v. Court, 8 Price, 127. (c) ‘Broadlane v. Balguy, 1 Y. & C. 16, 28. And see BiEes ve Lawson, 3 K. & J. 292; Cooper v. Carter, 2D. M. & G. 297. (d) Story, s. 1284e; Perry v. Shipway, 5 Jur. n. s. 535. IMPLIED TRUSTS. 451 the appointment of new trustees is an ordinary remedy, en- forced by courts of equity in all cases where there is a failure of suitable trustees to perform the trust, either from accident, or from the refusal of the old trustees to act, or from their original or supervenient incapacity to act, or from any other cause(a). 1081. The doctrine seems to have been carried so far by the courts, as to remove a joint trustee from a trust, who wished to continue in it, without any direct or positive proof of his personal default, upon the mere ground that the other co-trus- tees would not act with him; for, in a case where a trust is to be executed, if the parties have become so hostile to each other that they will not act together, the very danger to the due execution of the trust, and the due disposition of the trust- fund, requires such an interposition to prevent irreparable mischief(d). 1082. In cases of positive misconduct, courts of equity have no difficulty in interposing to remove trustees who have abused their trust(c). Itis not, indeed, every mistake, or neglect of . duty, or inaccuracy of conduct of trustees, which will induce courts of equity to adopt such acourse(d). But the acts or omis- sions must be such as to endanger the trust ‘property, or to show a want of honesty, or a want of a proper capacity to exe- cute the duties, or a want of reasonable fidelity (¢). 1088. The jurisdiction of courts of equity, in regard to trusts, as well as to other things, is not confined to cases where (a) Ellison v. Ellison, 6 Ves. 663, 664 ; Lake v. De Lambert, 4 Ves. 592; Millard v Eyre, 2 Ves. 94; Buchanan v. Hamilton, 5 Ves. 722; Hibbard v. Lambe, Amb. 309 ; Com. Dig. Chancery,4 W.7. And see Re The Moravian Society, 26 Beav. 101; Re Bridgman’s Trust, 6 Jur. N. 8. 1065 ; Re Tempest, L. R. 1 Chan. 485. (b) Uvedale v. Ettrick, 2 Ch. Cas. 130. Andsee Lewin on Trusts, 712. (® Portsmouth v. Fellows, 5 Mad. 450; Mayor, &c., of Coventry, v Att.-Gen. 7 Bro. P, C. 235. (@ Att.-Gen. v». Cooper’s Company, 19 Ves. 192. (2) Story, s, 1289. And see Castlev. Castle, 1D. & J. 352; Raikes v. Ward, 1 Ha. 448; Wetherell ». Wilson, 1 Keen, 80; Woods v. Woods, 1M. & C. 401 ; Crockett v. Crockett, 2 Ph. 553 ; Brown v. Casamajor, 4 Ves. 498 ; Hammond ». Neame, 1 Sw. 35 ; Hadow v. Hadow, 9 Sim. 438 ; Browne ». Paull, 1 Sim. n. 8. 92; Jodrell v. Jodrell, 14 Beav. 397: Longmore v. Elcum, 2 Y. & C. 363. 452 EQUITY JURISPRUDENCE. the subject-matter is within the absolute reach of the process of the court, called upon to act upon it; so that it can be di- rectly and finally disposed of, or affected by the decree. If the proper parties are within the reach of the process of the court, it will be sufficient to justify the assertion of full juris- diction over the subject matter in controversy(a). CHAPTER XXXVI. PENALTIES AND FORFEITURES. 1084. Originally, in all cases of PENALTIES and FoRFEIT- URES, there was no remedy at law, but the only relief which could be obtained was exclusively sought in courts of equity Now, indeed, relief may be obtained at law, in a great variety of cases ; although some cases are still cognizable in equity also. The original jurisdiction, however, in equity, still re- mains, notwithstanding the concurrent remedy at law. 1085. At law (and in general the same is equally true in equity), ifa man undertake todo a thing, either by way of con- tract or by way of condition, and it is practicable to do the thing, he is bound to perform it, or he must suffer the ordinary consequences ; that is to say, if it be a matter of contract he will be liable at law in damages for the non-performance ; if it be a condition, then his rights, dependent upon the per- formance of the condition, will be gone by the non-perform- ance. The difficulty which arises is, to ascertain what shall be the effect in cases where the contract or condition is impos- sible to be performed, or where it is against law, or where it is repugnant in itself or to the policy of the law(d). 1086. In regard to contracts, if they stipulate to do anything (a) See Penn v. Lord Baltimore, 1 Ves. Sen. 444; Earl of Kildare v. Eustace, 1 Vern. 419, 422. (b) Story, s. 1302. See Butler’s note (1) to Co. Litt. 206 a, and 1 Fonbl. Eq.’ B. 1. ch. 4,8. 1, and notes (a), (b), (c). PENALTIES AND FORFEITURES. 453 against law, or against the policy of the law, or if they contain repugnant and incompatible provisions, they are treated at the common law as void ; for, in the first case, the law will not tolerate any contracts, which defeat its own purposes ; and, in the last case, the repugnancy renders it impossible to ascertain the intention of the parties; and, until ascertained, it would be absurd to undertake to enforce it. On the other hand, if the parties stipulate for a thing impossible to be done, and known on both sides to be so, it is treated as a void act, and as not intended by the parties to be of any validity. Butif only one party knows it to be impossible, and the other does not, and is imposed upon, the latter may compel the former to pay him damages for the imposition(a). So, if the thing is physically possible, but not physicaliy possible for the party, still it will be binding upon him, if fairly made; for he should have weighed his own ability and strength to do it(d). 1087. Conditions may be divided into four classes: (1) Those which are possible at the time of their creation, but afterwards become impossible either by the act of God, or by the act of the party; (2) Those which are impossible at the time of their creation; (3) Those which are against law, or public policy, or are mala in.se or mala prohibita ; (4) Those which are repugnant to the grant or gift, by which they are created, or to which they are annexed(c). 1088. The general rule of the common law in regard to conditions is, that, if they are impossible at the time of their creation, or afterwards become impossible by the act of G or of the law, or of the party who is entitled to the benefit of them, or if they are contrary to law, or if they are repugnant to the nature of the estate or grant, they are void. But, if they are possible at the time, and become subsequently im- (a) 1 Fonbl. Eq. B. 1, ch. 4,8. 1, and note (a) ; id. s. 2; id. s. 3, note (r); ides. 4, note (s); Pullerton v. Agnew, 1 Salk. 172 ; Com. Dig. Condition, D. 1. (b) Story, s. 1303; Thornborrow. Whiteacre, 2 Ld. Raym. 1164 ; James v. Morgan, 1 Lev. 111. (c) This is the classification by Mr. Butler, in his note (1) to Co. Litt. 206a. See also Com. Dig. Condition, D. 1 to 8, 454 EQUITY JURISPRUDENCE. possible by the act of the party who is to perform them, then he is treated as in delicto, and the condition is valid and obli- gatory upon him. But the operation of this rule will, or may, under different circumstances of its application produce di- rectly opposite results(a). 1089. Conditions of all these various kinds will have a very different operation, where they are conditions precedent, from what they will have where they are conditions subse- quent. Thus, for example, if an estate is granted upon a condition subsequent, that is to say, to be performed after the estate is vested, and the condition is void for any of the causes above stated, there, the estate becomes absolute(d). But if the condition is precedent, or to be performed before the estate vests, there, the condition being void, the estate, which depends thereon, is void also, and the grantee shall take nothing by the grant; for he hath no estate, until the condition is performed(c). 1090. On the other hand, if a bond or other obligation be upon a condition which is impossible, illegal, or repugnant at the time when it is made, the bond is single, and the obligor is bound to pay it. But, if the eondition be possible at the time when it is made, and afterwards becomes impossible by the act of God, or of the law, or of the obligee, there, the bond is saved, and the obligor is not bound to pay it(d). So, if the the condition is in the disjunctive, and gives liberty to do one thing or another, at the election of the obligor; and both are possible at the time, but one part, afterwards, by the act of God, or of the obligee, becomes impossible, the obligation is (a) See Co. Litt. 206 a. Also, Butler's note to Co. Litt. 206 b, 207 a. (0) Black. Comm. 156, 157; Com. Dig. Condition, D.1 to 4; Co. Litt. 206 a; 1 Fonbl. Eq. B. 1, ch. 4, s. 1, note (c). (c) 2 Black. Comm. 157 ; Co: Litt. 206 a; Cary v. Bertie, 2 Vern. 339, 340. (d) Com. Dig. Condition, 1; Thornborrow v. Whiteacre, 2 Ld. Raym. 1164; Gradon v. Hicks, 2 Atk. 18; Jones v. Earl of Suffolk, 1 Bro. ©. C. 528; Co. Litt. 206 (a); 1 Roll. Abridg. 450, pl. 10. But see also, Barker », Hodgson, 3 M. & S. 267 ; Edwin ». East India Company, 2 Vern. 210; Blight v. Page, 3 B. & Pul. 295, note, and other cases collected in Platt on Covenants. PENALTIES AND FORFEITURES. 455 saved. Butif one part only was possible at the time, then the other part, if possible, ought to be performed(a). 1091. Thus, it is obvious, that, if a condition or covenant was possible to be performed, there was an obligation on the party, at the common law, to perform it punctiliously. If he failed so to do, it was wholly immaterial, whether the failure was by accident, or mistake, or fraud, or negligence. In either case, his responsibility dependent upon it became abso- lute, and his rights dependent upon it became forfeited or extinguished b). | 1092. Courts of equity do not hold themselves bound by such rigid rules; but they are accustomed to administer, as well as to refuse relief, in many cases of this sort, upon prin- ciples peculiar to themselves ; sometimes refusing relief, and following out the strict doctrines of the common law as to the effect of conditions and conditional ‘contracts; and sometimes granting relief upon doctrines wholly at variance with those held at the common law(c). 1093. The origin of equity jurisdiction as to relief in cases of penalties annexed to bonds and other instruments, the design of which is to secure the due fulfilment of the principal obligation, is obscure, and not easily traced to any very exact source. It is highly probable, that relief was first granted upon the ground of accident, or mistake, or fraud, and was limited to cases where the breach of the condition was by the non-payment of money at the specified day. In such cases, courts of equity seem to have acted upon the ground, that by compelling the obligor to pay interest during the time of his default, the obligee would be placed in the same situation, as if the principal had been paid at the proper day. The con- sideration, that the failure of payment at that day might be (a) Story, ». 1307 ; Com. Dig. Condition, D. 1; Laughter’s case, 5 Co. 21; 1 Fonbl. Eq. B. 1, ch. 4, s. 3. and note (9). And see Re Conington’s Will, 6 Jur. Nn. 8. 992; Re Williams, 6 Jur. n. 8, 1064. (b) Story, ». 1311, (c) Story, s. 1312. 456 EQUITY JURISPRUDENCE. , attended with mischievous consequences to the obligee, which never could be cured by any subsequent payment thereof, with the addition of interest, seems to have been overlooked(a). .1094. The doctrine has, however, been for a great length of time established, and is now expanded, so as to embrace a variety of cases, not only where money is to be paid, but where other things are to be done, and other objects are con- tracted for. In short, the general principle now adopted, is, that, wherever a penalty is inserted merely to secure the per- formance or enjoyment of a collateral object, the latter is con- sidered as the principal intent of the instrument, and the penalty is deemed only as accessory, and, therefore, as intended only to secure the due performance thereof, or the damage really incurred by the non-performance(b). 1095. In every such case, the true test (generally, if not universally) by which to ascertain whether relief can or can- not be had in equity is, to consider whether compensation can be made or not. If it cannot be made, then courts of equity will not interfere. If it can be made, then, if the pen- alty is to secure the mere payment of money, courts of equity will relieve the party, upon paying the principal and interest (c).. If it is to secure the performance of. some collateral act or undertaking, then courts of equity will retain the bill, and will direct an issue of quantum damnificatus; and when the amount of damages is ascertained by a jury, upon the trial of such an issue, they will grant relief upon payment of such damages(d). (a) Reynolds v. Pitt, 19 Ves. 140. See Gregory v. Wilson, 16 Jur. 304; Story s. 1313. See Hill v. Barclay, 18 Ves. 58, 60. (6) Sloman v. Walter, 1 Bro. C. ©. 418; Sanders v. Pope, 12 Ves. 282; Davis v. West, 12 Ves. 475. Andsee Parker v. Butcher, L. R. 3.Eq. 762; Thompson v. Hud- son, L. R. 2 Eq. 612; 2 Chan. 255; L. R. 4 H. L.1; Herbert v. Salisbury, &c. Rail Co., L. R. 2Eq. 221; Sterne v. Beck, 11 W. R. 791. (c) See Carden v. Butler, 1 Hayes & Jones, 112; French v. Macale, 2 Dru. & War. 269 ; Elliott v. Turner, 13 Sim. 477. And see Bargent v. Thompson, 4 Giff, 473. (d) Astley v. Weldon, 2 Bos. & Bull. 346, 350; Hardy ». Martin, 1 Cox, 26; Benson v. Gibson, 3 Atk. 395; Errington v. Aynesley, 2 Bro. C. C. 343%; Com. Dig. Chancery, 4D, 2. PENALTIES AND FORFEITURES. 457 1096. The same doctrine has been applied by courts of equity to cases of leases, where a forfeiture of the estate, and an entry for the forfeiture, is stipulated for in the lease, in case of the non-payment of the rent at the regular days of pay- ment; for the right of entry is deemed to be intended to be a mere security for the payment of the rent(a). It has also been applied to cases where a specific performance of con- tracts is sought to be enforced, and yet the party has not punc- tually performed the contract on his own part, but has been in default(b). 1097. In cases of this sort, admitting of compensation, there is rarely any distinction allowed in courts of equity between conditions precedent and conditions subsequent; for it has been truly said, that although the distinction between condi- tions precedent and conditions subsequent is known and often mentioned in courts of equity, yet the prevailing, though not the universal, distinction as to condition there,is between cases where compensation can be made and cases where it cannot be made, without any regard to the fact, whether they are conditions precedent or conditions subsequent(c). 1098. The true foundation of the relief in equity in all these cases is, that, as the penalty is designed as a mere security, if the party obtains his money, or his damages, he gets all that he expected, and all that, in justice, he is entitled to(d). And, notwithstanding the objections which have been sometimes urged against it, this seems a sufficient foundation for the jurisdiction. (a) Hill v. Barclay, 18 Ves. 58. See Gregory v. Wilson, 16 Jur. 304; 9 Hare. 683, 689; Bowser v. Colby, 1 Hare, 109; Horne v. Thompson, 1 Sau. & Sc. 615. As to the power of the Common Law Courts now in such cases, see 22 Vic., c. 27, s, 56. (b) Davis v. West, 12 Ves. 475 ; Sanders v. Pope, 12 Ves. 282 ; Peachy v. The Duke of Somerset, 1 Str. 453 ; Wadman ». Calcraft, 10 Ves. 67, 70; Hill v. Barclay, 18 Ves. 58, 59; 16 Ves. 403, 405. (c) Story, s. 1315; Bertie v. Falkland, 2 Vern. 339, 344 ; 8.0. 1 Salk. 479 ; Popham v. Bampfield, 1 Vern. 83, and note (1); Hayward ». Angell, 1 Vern. 223 ; Grimston ». Bruce, 1 Salk. 156; Taylor v. Popham, 1 Bro. C. C. 168 ; Hollinrake ». Lister, 1 Russ. 508; Rose v. Rose, Ambl. 332; Wyllie v. Wilkes, Doug. 522; Woodman ». Blake, 2 Vern. 221; Cage v. Russell, 2 Vent. 352; Wallis v. Crimes, 1 Ch. Cas. 89. (@) Peachy v. The Duke of Somerset, 1 Str. 447, 453. ( 458 EQUITY JURISPRUDENCE. 1099. The same principle of general justice is applied in favour of the party entitled to the security of the penalty, wherever the other party has unreasonably deprived him of his right to enforce it, until it is no longer adequate to secure his rights. Hence it is, that courts of equity will decree the obligee of a bond interest beyond the penalty of the bond, where, by unfounded and protracted litigation, the obligor has prevented the obligee from prosecuting his claim at law for alength of time, which has deprived the latter of his legal rights, when they might otherwise have been made available at law. 1100. Courts of equity in such cases do no more than supply and adminster, within their own jurisdiction, a substitute for the original legal rights of the obligee, of which he has been unjustifiably deprived by the misconduct of the obligor(a). So, if a mortgagor has given a bond with a penalty, as well as a mortgage for the security of a debt, although the creditor suing on the bond can recover no more than the penalty, even when the interest due thereon exceeds it; yet, if he sues on the mortgage, courts of equity will decree him all the interest due upon the debt, although it exceeds the penalty; for the bond is but a collateral security(b). And, in such a case, it will not make any difference, that the mortgage is given by a surety(c). 1101. But a distinction must be made between cases of pen- alties strictly so called, and cases of liquidated damages. The latter properly occur, when the parties have agreed that, in case one party shall do a stipulated act, or omit to do it, the other party shall receive a certain sum, as the just, appropri- ate, and conventional amount of the damages sustained by such act or omission. In cases of this sort, courts of equity will not interfere to grant relief; but will deem the parties (a) The East India Company v. Campion, 11 Bligh, 159, 187, 188, See also Pulteney v, Warren, 6 Ves. 92; Grant v. Grant, 3 Russ. 598; 3 Sim. 340; Duval v. Terrey, Shower, P. C. 15; Hale v. Thomas, 1 Vern. 349, 350; Peers v. Baldwin, 2 Eq. Abridg. 611. 8) Clark v. Lord Abingdon, 17 Ves. 106. (c) Story, s. 1316a; Clark v. Lord Abingdon, 17 Ves. 106. PENALTIES AND FORFEITURES. 459 entitled to fix their own measure of damages; provided always that the damages do not assume the character of gross extrava- gance, or of wanton and unreasonable disproportion to the nature or extent of the injury. 1102. But, on the other hand, courts of equity will not suffer their jurisdiction to be evaded merely by the fact, that the parties have called a sum damages, which is, in fact and in intent, a penalty ; or, because they have designedly used lan- guage and inserted provisions, which are in their nature penal, and yet have endeavoured to cover up their objects under other disguises. The principal difficulty in cases of this sort is to ascertain when the sum stated isin fact designed to be nomine pene, and whenit is properly designed as liquidated damages(a). 1103. In regard to forfeitures, it is a universal rule in equity, never to enforce either a penalty or a forfeiture(b). There- fore, courts of equity will never aid in the divesting of an estate, for a breach of a covenant, on a condition subsequent ; although they will often interfere to prevent the divesting of an estate, for a breach of covenant or condition(c). 1104. There seems to be a distinction taken, in equity, be- tween penalties and forfeitures. In the former, relief is always given, if compensation can be made; for it is deemed a mere security. In the latter, although compensation can be made, relief is not always given. It is true, that the rule has been often laid down, and was formerly so held, that, in all cases of penalties and forfeitures, (at least, upon a condition subsequent,) courts of equity would relieve against the breach of the condition and the forfeiture, if compensation could be “ made, even although the act or omission was voluntary(d). (a) Story, s. 1318 ; Lowe v. Peers, 4 Burr. 22, 25; Astley v. Weldon, 2 Bos. & Pull. 346. (t) Popham v. Bampfield, 1 Vern. 83; Cary v. Bertie, 2 Vern. 339. (c) Story, s. 1319. (d) Story, s. 1320; Popham ». Bampfield, 1 Vern. 33; Hayward v. Angell, 1 Vern. 222; Northcote v. Duke, Ambl. 513; Sanders v. Pope, 12 Ves. 289; Cage v. Russell, 2 Vent. 352; Wafer v. Mocato, 9 Mod. 112; Hack v. Leonard, 9 Mod. 91; Com. Dig. Chancery, 3.1L. And see Taylor v. Popham, 1 Bro. C. C. 168; Hollinrake v. Lister, 1 Russ. 508; Com. Dig. Chancery. 2 Q. 4, 7, 8. 460 EQUITY JURISPRUDENCE. 1105. But the doctrine at present maintained seems far’ more narrow. It is admitted, indeed, that, where the con- dition or forfeiture is merely a security for the non-payment of money, (such as a right of re-entry upon non-payment of rent,) there it is to be treated as a mere security, and in the nature of a penalty, and is accordingly relievable(a). But, if the forfeiture arises from the breach of any other covenants of a collateral nature, as for example, of a covenant to repair, there, although compensation might be ascertained and made upon an issue quantum damnificatus, yet it has been held that courts of equity ought not to relieve, but should leave the parties to their remedy at law(b). 1106. The doctrine seems now to be asserted, that in all cases of forfeiture for the breach of any covenant, other than a covenant to pay rent, no relief ought to be granted in equity, unless upon the ground of accident, mistake, or fraud, or sur- prise, although the breach is capable of a just compensation(c). And the same rule is applied to cases where there is not only a clause for re-entry, in case of non-payment of rent, but also a proviso that, if the rent is not duly paid, the lease shall be void ; for the construction put in equity upon this latter clause is, that it is a mere security for the payment of the rent(d). 1107. Courts of equity will not interfere, in cases of forfeiture for the breach of covenants and conditions, where there can- not be any just compensation decreed for the breach. Thus, for example, in the case of a forfeiture for the breach of a covenant, not to assign a lease without license, or to renew a (a) Hill ». Barclay, 16 Ves. 403, 405; 18 Ves. 58, 60; Wadman 2. Calcraft, 10 Ves. 68, 69; Reynolds x. Pitt, 19 Ves. 140. (6) Wadman v. Caleraft, 10 Ves. 68, 69; Hill v. Barclay, 16 Ves. 403, 405; 18 Ves. 59, 60, 61; Reynolds v. Pitt, 19 Ves. 140, 141; Bracebridge v. Buckley, 2 Price, 200; Green v. Bridges, 4 Sim. 96. The contrary doctrine was maintained in Hack v. Leonard, 9 Mod, 91; and Webber v. Smith, 2 Vern. 103. And see Gregory v. Wilson, 9 Hare, 683. (c) Eaton v. Lyon, 3 Ves. 692, 693; Bracebridge v. Buckley, 2 Price, 200; Hill «. Barclay, 16 Ves. 403, 405 ; 18 Ves. 58; Rolfe v. Harris, 2 Price, 206, note ; White v. Warner, 2 Mer. 459; Northcote v. Duke, 2 Ed. 322, note; Com. Dig. Chancery, 2 Q. 2 to 4. (4) Bowser v. Colby, 1 Ha. 109, 130; Horne , Thompson, 1 Sau. & Se. 615. PENALTIES AND FORFEITURES. 461 lease within a given time, no relief will be given; for they admit of no just compensation or clear estimate of damages(q). The same rule formerly prevailed in cases of breach of cove- nant to insure, but now the court may in certain cases relieve where the breach has been by accident or mistake, or other wise without fraud or gross negligence(b). 1108. Upon grounds somewhat similar, aided also by con- siderations of public policy, and the necessity of a prompt per- formance, in order to accomplish public or corporate objects, courts of equity, in cases of the non-compliance by stock- holders with the terms of payment of their instalments of stock at the times prescribed, by which a forfeiture of their shares is incurred under the by-laws of the institution, have refused to interfere by granting relief against such forfeiture (e). 1109. But where the party or his agent, who is entitled to the benefit of the forfeiture, has waived such benefit, and treated the contract as still subsisting for some purposes, he will not be allowed to insist upon the forfeiture for any pur- pose(d@). 1110. Where any penalty or forfeiture is imposed by statute upon the doing or omission of a certain act, courts of equity will not interfere to mitigate the penalty or forfeiture, if in- curred, for it would be in contravention of the direct expres- sion of the legislative will(e).. (a) Grimstone v. Lord Bruce, 1 Salk. 156 ; 2 Vern. 594; Waferv. Mocato, 9 Mod 112; Lovat ». Lord Ranelagh, 3 V. & B. 24; Rolfe v. Harris, 2 Price, 206, note ; White v. Warner, 2 Meriv. 459 ; 1 Fonbl. Eq. B. 1ch. 6, 6. 12, and note (c); City of London v. Mitford, 14 Ves. 58 ; Reynolds v. Pitt, 19 Ves. 134 ; Com. Dig. Chancery, ~2Q. 3, 8 to 10. (b) 29 Vie. c. 28, 8.5. And see Page v. Bennett, 2 Giff. 117. And see before the statute, Reynolds v. Pitt, 19 Ves. 134; Haven v. Middleton, 10 Hare, 641; Green ». Bridges, 4 Sim. 96. (c) Sparks». Proprietors of Liverpool Water Works, 13 Ves. 433, 434 ; Prendergrast » Turton, 1Y¥. & C. 98, 110. And see Woollaston’s case, 4 D. & J. 437 ; Richmond’s case, 4K. & J. 305. (a) Wing v. Harvey, 5D. M. & G. 265. And see Whitehead v. Bennett, 6 Jur. Nn. 8, 419, (e) Peachy v, Duke of Somerset, 1 Str. 447, 452; Keating v. Sparrow, 1 B. & B. 373, 3874, 462 EQUITY JURISPRUDENCE. CHAPTER XXXVII INFANTS. 1111. Another portion of the exclusive jurisdiction of courts of equity, partly arising from the peculiar relation and per- sonal character of the parties who are the proper objects of it, and partly arising from a mixture of public and private trusts, is that which is exercised over the persons and property of infants, idiots, lunatics, and married women. 1112. The origin of the jurisdiction over the persons and property of infants in chancery is obscure, and has been a matter of much juridical discussion(a). But, whatever may be the true origin of the jurisdiction it is now conceded, on all sides, to be firmly established, and beyond the reach of con- troversy. Indeed, it is a settled maxim, that the king is the universal guardian to infants, and ought, in the Court of Chan- cery, to take care of their fortunes(b).. Some of the more important functions of the Court, connected with this author- ity, are, the appointment and removal of guardians; the maintenanee of infants; the management and disposition of the property of infants ; and lastly, the marriage of infants. 1113. In the first place, in regard to the appointment and removal of guardians. The Court of Chancery will appoint a suitable guardian to an infant, where there is none other, or none other who will, or can act, at least, where the infant has property ; for if the infant has no property, the court will perhaps not interfere. It is not, however, from any want of jurisdiction(c) that it will not interfere in such a case, but from (a) Story, s, 1328; Co. Jitt. 89a; 3 Black. Com. 426, 427; Duke of Beaufort v. Berty, 1{P. W. 705 ; Morgan v. Dillon, 9 Mod. 139; Hughes v. Science, 2 Eg. Abr. 756 ; De Manneville v. De Manneville, 10 Ves. 63; Eyre v. Countess of Shaftesbury, 2-P. W. 118, 123 ; Wellesley v. Duke of Beaufort, 2 Russ. 20; Wellesley v. Welles- ley, 2 Bligh, n., 129, 136, 142. (b) Wellesley v. Duke of Beaufort, 2 Russ. 19; Duke of Beaufort v. Berty, 1 P.W. 702, 706, ; (c) Re Spence, 2 Ph 247. INFANTS, 463 the want of means to exercise its jurisdiction with effect ; because the court cannot take upon itself the maintenance of all the children in the kingdom. It can exercise this part of its jurisdiction usefully and practically only where it has the means of doing so; that is to say, by its having the means of applying property for the use and maintenance of the in- fant(a). Guardians appointed by the court are treated as officers of the court, and are held responsible accordingly to it(0). 1114. The question of who are to be appointed guardians, is one of discretion, merely ; and the court ordinarily, especially ifthe guardianship be contested between two or more parties (c), directs a reference to appoint guardians(d), leaving the person in whose custody the infant actually is, to retain that custody until the coming in of the master’s report(e). But if there are testamentary guardians,the court has no jurisdiction to interfere(7). If the testamentary appointment, however, be one, that contemplates: the residence of the child in the country of its birth, and the child be removed to a residence within the jurisdiction of the court, it seems that the court will appoint guardians there; and the testamentary appoint- ment will be looked at only as an expression of the parent's preferences, to which the court will give great influence(g). But at the same time, the court will look at all the circum- stances, and not appoint the persons for whom the parent has (a) Lord Eldon, in Wellesley v. Duke of Beaufort, 2 Russ. 21. The court will ap- point a guardian upon petition, without a bill being filed; and it is done upon the petition of the infant himself or of some person in his behalf, see Da Costa v. Mellish, 2 Atk. 14; 2 Swanst. 533; Ex parte Mountfort, 15 Ves. 445; Ea parte Salter, 2 Dick. 769 ; Wilcox v. Drake, 2 Dick. 631; cited Jac. 251, note (c) ; Curtis». Rippon, 4 Mad. 462; Ex parte Myerscough, 1 J. & W. 151; Ex parte Richards, 3 Atk. 518 ; Ex parte Birchell, 3 Atk. 813; Ex parte Woolscombe, 1 Mad. 213 ; Ex parte Wheeler, 16 Ves- 256; Re Jones, 1 Russ. 478; Bradshaw v. Bradshaw, 1 Russ, 528. () Story, s. 1338; Wellesley v. Duke of Beaufort, 2 Russ. 1, 20. (c) See Knott v. Cottee,2 Ph. 192. (d) See Re Bond, 11 Jur. 114. (c) Coham v. Coham, 13 Sim. 639. f) But see Anon. 6 Gr. 632. (9) See Miller v. Harris, 14 Sim. 540 ; Re Johnstone, 2J. & L. 222. 464 EQUITY JURISPRUDENCE. expressed a preference, if they are resident in the country of the child’s birth, unless the court is satisfied that it was his intention to appoint them guardians generally, and not guar- dians for that country merely(a). 1115 In the next place, as to the removal of guardians. The Court of Chancery will not only remove guardians appointed by its own authority, but it will also remove guardians at the common law, and even testamentary or statute guardians, whenever sufficient cause can be shown for such a purpose (b). In all such cases, the guardianship is treated as a dele- gated trust, for the benefit of the infant, and, if it is abused, or in danger of abuse, the court will interpose, not only by way of remedial justice, but of preventive justice(c). Where the conduct of the guardian is less reprehensible, and does not require so strong a measure as a removal, the court will, upon special application, interfere and regulate, and direct the conduct of the guardian in regard to the custody, and educa- tion, and maintenance of the infant(d) ; and if necessary, it will inhibit him from carrying the infant out of the country, and it will even appoint the school where he shall be educated. (e). In like manner, it will, in proper cases, require security to be given by the guardian, if there is any danger of abuse or injury to his person or to his property(/). 1116. The Court of Chancery will not only interfere to re- move guardians for improper conduct, but it will also assist (a) Beattie ». Johnson, 1 Ph. 17; 10 Cl, & Fin. 42. (b) Duke of Beaufort v. Berty, 1 P. W. 703; Butler v. Freeman, Ambl. 302 ; Roach v. Garvan, 1 Ves. Sen. 160; Wellesley v. Duke of Beaufort, 2 Russ. 21,22; Wel- lesley v. Wellesley, 2 Bligh, n. B. 128, 145, 145. See also Eyre v. Countess of Shaf- tesbury, 2 P. W. 107; O’Keefe v, Casey, 1S. & L. 106; Tombes v. Elers, 1 Dick. 88; Smith v. Bate, 2 Dick. 631; Morgan v. Dillon, 9 Mod. 139. But see Ingham v. Bickerdike, 6 Mad. 276. (c) Wellesley ». Duke of Beaufort, 2 Russ. 1, 20; Wellesley v. Wellesley, 2 Bligh, N. B. 128, 141 ; Duke of Beaufort v. Berty, 1 P W. 704, 705; Com. Dig. Chancery, 30. 4. 5. (d) See Re McCulloch, 1 Dr. 276. (e) Duke of Beaufort v. Berty, 1 P. W. 703, 704 ; De Manneville v. De Manneville, 10 Ves. 55; Lyons v. Blenkin, Jac. 245; Skinner » Warner, 2 Dick. 779; Tombes 2, Elers, 1 Dick. 88; Talbot v. Earl of Shrewsbury. 4 M. & C. 672. (f) Foster v. Denny, 2 Ch, Cas. 237; Hanbury v. Walker, 3 Ch. Cas. 58; 1 Mad. Pr. Ch. 263, 264, 268, 269. INFANTS. 465 guardians in compelling their wards to go to the schools se- ‘lected by the guardian, as well as in obtaining the custody of the persons of their wards, when they are detained from them. This may not only be done by a writ of habeas corpus, but it may also be done on a petition, without any bill being filed in the court(a). The jurisdiction of the court extends to the care of the person of the infant, so far as necessary for his protection and education ; and as to the care of the property of the in- fant, for its due management and preservation, and proper application for his maintenance(b). It is upon the former ground, principally, that is to say, for the due protection and education of the infant, that the court interferes with the or- dinary rights of parents, as guardians by nature, or by nur- ture, in regard to the custody and care of their children(c). 1117. Although, in general, parents are intrusted with the custody of the persons, and the education of their children, yet this is done upon the natural presumption'that the children will be properly taken care of, and will be brought up with a due education in literature, and morals, and religion; and that they will be treated with kindness and affection. But, this “ presumption may be removed; as when (for example) it is found, that a father is guilty of gross ill-treatment or cruelty towards his infant children ; or that he is in constant habits of drunkenness and blasphemy, or low and gross de- bauchery ; or that he professes atheistical or irreligious prin- ciples(d); or that his domestic associations are such as tend to the corruption and contamination of his children ; or that he otherwise acts in a manner injurious to the morals or in- terests of his children(e). 1118. In every such case the court will interfere, and de- (a) Eyre v. Countess of Shaftesbury, 2 P. W. 103, 118, 120 ; Goodall v. Harris, 2 P. W. 561, 562; Ex parte Hopkins, 3 P. W. 152; Hall v. Hall, 3 Atk. 721; Da Costa v. *Mellish, West, 300; 2 Swanst. 533, 537, note; Reynolds » Teynham, 9 Mod. 40; Wright v. Naylor, 5 Mad. 77; Re Gillrie, 3 Gr. 279, (0) Re Spence, 2 Ph. 247. (c) Co. Litt. 88 b, Hargrave’s note. See 1 Black. Comm. 461, 462. (@) Re Fynn, 2D. & Sm. 457; Warde v. Warde, 2 Ph. :786; Thomas »v, Roberts, 14 Jur. 639. ; (2 See Anon., 2 Sim. n.s. 54. But see Ball ». Ball, 2 Sim. 35. : 30 466 EQUITY JURISPRUDENCE. prive the father of the custody of his children, and appoint a suitable person to act as guardian, and to take care of them, and to superintend their education(a). Butit is only in cases of gross misconduct that paternal rights are interfered with(b). As between husband and wife, the custedy of the children generally belongs to the husband(c). — 1119. Considerations of another nature may often operate, in deciding who, as between the parents themselves, shall have the custody of the children of the marriage, in cases where the parents do not live together. Ordinarily, indeed, the father will be entitled to have the custody of his infant children ; and it has been said that by the common law the courts have no power to take legitimate minor children from the custody of the father(d). But the courts have now juris- diction by statute to confer the custody on the mother until the infant attains twelve years of age(e).- 1120. The jurisdiction, thus asserted, to remove. infant children from the custody of their parents, and to superintend their education and maintenance, is admitted to be of extreme delicacy, and of no inconsiderable embarrassment and respon- sibility. But it is nevertheless a jurisdiction which seems in- dispensable to the sound morals, the good order, and the just protection of a civilized society(/). 1121. The court has no jurisdiction to remove a child from the custody of the father or mother, merely because it would (a) Duke of Beaufort v. Berty, 1 P. W. 703; Whitfield v. Hales, 13 Ves. 482; De Manneville v. De Manneville, 10 Ves. 59; Shelley v. Westbroke, Jac. 266; Lyons ». Blenkin, Jac. 245; Roach v, Garvan, 1 Dick. 88; Lord Shipbrook v. Lord Hinchin- brook, 2 Dick. 547; Creuse v. Orby Hunter, 2 Cox, 242; Wellesley v. Duke of Beau- fort, 2 Russ. 1, 20, 21; 2 Bligh, n. n. 128, 141; Com. Dig. Chancery, 3 O. 4, 53 Ball v. Ball, 2 Sim. 35 ; Ex parte Mountfort, 15 Ves. 445. (0) Re Pulbrook, 11 Jur. 185. (c) See Re North, 11 Jur. 7; Regina ». Smith, 17 Jur. 24. (@) Re Hakewill, 12 C. B. 223. And see Ex parte Skinner, 9 J. B. Moore, 278; Rex v, Hopkins, 7 Hast, 579. (e) Con. Stat. U. C. c. 74, ss. 8to 11; Re Davis, 3 Chan. Cham. R. 277; Monro v. Monro, 15 Gr. 431. fAnd see Re Fynn, 2D & Sm. 457; Re Tomlinson, 3 D. & Sm. 371; Re Taylor, 11 Sim. 178; Shillito v. Collett, 8 W.R. 683; Re Winscom, 2 H. & M. 540. (f) See the very able judgment of Lord Redesdale in Wellesley v. Wellesley, 2 Bligh, N. B., 124, for a discussion of the principles on which the jurisdictio is rested. INFANTS. 467 be for the benefit of the child. The peculiar religious opinions, or the poverty of the father, form no grounds for removing the child from his custody. Mere acts of harshness or severity, by a father, not such as would be injurious to the health, or the fact of a somewhat passionate temper, will not justify such removyal(a.) 1122. We are next led to the consideration of what consti- tutes an infant a ward of chancery, in respect to whom the court interferes in a great variety of cases, when it would not, if the infant did not stand in that predicament in relation to the court. Properly speaking, a ward of chancery is a person who is under a guardian appointed by the Court of Chancery (6). But, wherever a suit is instituted in the Court of Chan- cery, relative to the person or property of an infant, although he is not under any general guardian appointed by the court, he is treated as a ward of the court, and as being under its special cognizance and protection(c). _, 1123. The power of the Court of Chancery to appoint a _ guardian, and make an infant a ward of the court, is not limited “to cases where the infant is domiciled in the country, and actually has property there ; but reaches cases where the in- fant is but temporarily in the country, and all the property is in a foreign country(d). 1124, Where an infant is a ward of chancery, no act can be done affecting the person, or property, or state of the minor, unless under the express or implied direction of the court itself(e). Every act done without such direction is treated as (a) Curtis v, Curtis, 5 Jur. n.s. 1147. See Re Newberry, L. R,1 Hq. 451; L. R. 1 Chan. 263, where the subject of enforcing the provisions of the father’s will in regard to the religious education of his children is discussed. (b) See Goodall v. Harris, 2 P. W. 560,562. See Hughes v. Science, Ambl. 302, note, (c) Butler v. Freeman, Ambl. 301; Hughes v. Science, Ambl. 302, note; Eyre v. Countess of Shaftesbury, 2 P. W. 112; Wright v. Naylor, 5 Mad. 77 ; Wellesley v. “Wellesley, 2 Bligh, n. R. 137. (d) Johnstone v. Beattie, 10 Cl. & Fin. 42. (e) See Goodall v. Harris, 2 P. W. 560, 562; Daniel v. Newton, 8 Beav. 485 ; But- ler v. Freeman, Ambl. 302, 303; Hughes v. Science, Ambl. 302, note ; Johnstone v. Beattie, 10 Cl. & Fin, 42, 84, 85. 468 EQUITY JURISPRUDENCE. a violation of the authority of the court, and the offending party will be arrested upon the proper process for the con- tempt, and compelled to submit to such orders and such pun- ishment by imprisonment, as are applied to other cases of contempt. Thus, for example, it is a contempt of the court to conceal or withdraw the person of the infant from the proper custody ; to disobey the orders of the court in relation to the maintenance or education of the infant ; or to marry the infant without the proper consent or approbation of the court(a). 1125. Whenever the infant is a ward of chancery, and a suit is depending in the court, the court will, of course, upon peti- tion, direct a suitable maintenance for the infant, having a due regard to the rank, the future expectations, the intended pro- fession or employment, and the property of the latter(b). But, where there is already a guardian in existence, not deriving his authority from the Court of Chancery, and where there is no suit in the court touching the infant or his property (thus making the infant quasi a ward of the court), there formerly existed much difficulty, on the part of the court, in interfering upon the petition, either of the guardian or of the infant, to direct a suitable maintenance of the latter. The effect of this doubt was to allow the guardian to exercise his discretion at his own peril; and thus to leave much to his sense of duty, and much more to his habits of bold or of timid action in assuming responsibility. At present, a different course is pur- sued, and, in ordinary cases, at least where the property is - small, the court will, upon petition, without requiring the more formal proceedings by bill, settle a due maintenance upon the infant(c). (a) 2 Fonbl. Eq. B. 2, Pt. 2, ch. 2,s. 1, and notes (5), (c); Hughes v. Science, Ambl. 302, note ; Macpherson on Infants, Appendix I. (b) See Wellesley v. Wellesley, 2 Bligh, i. 1. 135. ; (c) Ex parte Whitfield, 2 Atk. 315; Ex parte Thomas, Ambl, 146; Ex parte Kent, 3 Bro. C. C. 88; Ex parte Salter, 2 Dick. 769 ; 3 Bro. C. C. 500; Ex parte Mountfort, 15 Ves. 445; Ex parte Myerscough, 1 J. & W. 152; Corbett v. Tottenham, 1 B. & B. 59, 60. Ex parte Green, 1 J. & W. 253; Ex parte Starkie, 3 Sim. 339; Ex parte Lakin, 4 Russ. 307 ; Ea parte Molesworth, 4 Russ, 308, note; Clay v. Pennington, 8 Sim. 359; Bridge v. Brown, 2 Y. & C. 181. INFANTS. ’ 469 1126. In regard to the maintenance of infants out of their own property, it is not allowed as a matter of course by a court of equity, either out of the income or the principal thereof. On the contrary, the court will examine into the circumstan- ces of the case; and, if the father is of ability to maintain the infant out of his own property, the court will, ordinarily, withhold all allowance from the property or income of the infant for the maintenance of the latter(a). But if the father is unable to support the infant, he may be allowed out of his estate ; and if special circumstances exist, the father may be allowed for expenses of past maintenance(b). 1127. The court, also, is not limited in its authority in regard to maintenance, to cases where the infant is resident within the territorial jurisdiction of the court, or the mamtenance is to be applied there. But in suitable cases, and under suitable circumstances, it will order maintenance for an infant out of the jurisdiction, taking care to impose such conditions and re- strictions on the party applying for it as will secure a proper ‘application of the money(c). 1128. In allowing maintenance, the court has a liberal re- gard to the circumstances and state of the family to which the infant belongs ; as, for example, if the infant a elder son and the younger children have no provision made for them, an ample allowance will be allowed to the infant, so that the younger children may be maintained(d). Similar considera- tions will apply to a father or mother of the infant, who is in distress or narrow circumstances(e). On the other hand, in (a) Thompson v. Griffin, Cr. & Ph. 317, 320. And see Stocken v. Stocken, 4 Sim. 152; 4M. & C. 95; Mundy v. Lord Howe, 4 Bro. C. C. 223 ; Meacher v. Young. 2M. & K. 490; Bruin v. Knott, 1 Ph. 572. (b) See Carmichael v. Hughes, 20 L. J. Ch. 396. See also Stopford v. Lord Canter- bury, 11 Sim. 82; Bruin v. Knott, 1 Ph. 572. (c) Stephens v. James, 1 M. & K. 627; Logan v. Farlie, Jac. 193 ; and see note, Jac. 265. And see Sanborn v. Sanborn, 11 Gr. 361. (a) Harvey v. Harvey, 2 P. W. 21, 22; Lanoy ». Duke of Athol, 2 Atk, 447; Petre oe Atk. 511; Burnet v. Burnet, 1 Bro. C. C. 179; Mitchell v. Ritchey, 13 Gr. (e) Roach v. Garvan, 1 Ves. Sen. 160; Bradshaw v. Bradshaw, 1 J. & W. 647; Hey- sham v, Heysham, 1 Cox, 179; Allen v. Coster, 1 Beav. 201. ATO EQUITY JURISPRUDENCE. allowing maintenance, the court usually confines itself within the limits of the income of the property. But where the pro- perty is small, and more means are necessary for the due main- tenance of the infant, the court will sometimes allow the capi- tal to be broken in upon(a). But without the express sanction of the court, a trustee or guardian will not be permitted, of his own accord, to break in upon the capital(d). 1129. The court also exercise, a vigilant care over guardians in their management of the property of the infant. It will carry its aid and protection in favour of infants so far, as to reach other persons than those who are guardians strictly ap- pointed. For if a man intrudes upon the estate of an infant and takes the profits thereof, he will be treated as a guardian, and held responsible therefor, to the infant, in a suit in equity (). 1130. The marriage of infants is a most important and deli- cate duty of the Court of Chancery, which it exercises with great caution in relation to all persons who are wards of the court. No person is permitted to marry a ward of the court without the express sanction of the court, even with the con- sent of the guardian, If a man should marry a female ward without the consent and approbation of the court, he and all others concerned in aiding and abetting the act, will be treated as guilty of a contempt of the court; and the husband himself, even though he were ignorant that she was a ward of the court, will still be deemed guilty of a contempt(d). 1131. In all cases where the Court of Chancery appoints a guardian, or committee in the nature of a guardian, to have (a) Barlow v. Grant, 1 Vern. 255; Harvey v. Harvey, 2 P. W. 22; Ex parte Green, 1J. & W. 253 ; Walker » Wetherell, 6 Ves. 474; Re England, 1 R. & M. 499; Ex parte Swift, 1 R. & M, 575; Clay v. Pennington, 8 Sim. 359; Ashbough v. Ash- bough, 10 Gr. 430. But see Re Coe’s Trust, 4K. & J. 199. (b) Walker v. Wetherell, 6 Ves. 474. (c) Wyllie v. Ellice, 6 Hare, 505. ‘d) Eyre v. Countess of Shaftesbury, 2 P. W.111; Butler v. Freeman, Ambl. 302 Edes v. Brereton, West, 348 ; More v. More, 2 Atk. 157 ; Herbert’s case, 3P. W. 116 Hughes v. Science, Ambl. 302, note ; Nicholson v. Squire, 16 Ves. 259. INFANTS. 471 the care of an infant, it is accustomed to require the party to give security that the infant shall not marry without the leave of the court; which form is rarely altered, and only upon special circumstances. So that, if an infant should marry, though without the privity, or knowledge, or. neglect of the guardian, or committee; yet the security would in strictness be forfeited, whatever favour the court might, upon an appli- cation, think fit to extend to the party, when he should appear . to have been in no fault(a). 1132. Where there is reason to:suspect an intended and im- proper marriage without its sanction, the court will, by injunc- tion, not only interdict the marriage, but also interdict com* munications between the ward and the admirer ; and if the guardian is suspected of any connivance, will remove the infant from his care and custody, and place the infant under the care and custody of a committee(6). 1183. In case of an offer of marriage of a ward, the court will refer it to a master, to ascertain and report, whether the match is a suitable one, and also what settlement ought to be made(c). And where a marriage has been actually celebrated without the sanction of the court, the court will not discharge the husband, who has been committed for the contempt, un- til he has actually made such a settlement upon the female ward, as, upon a reference to a master, shall, under all the circumstances, be deemed equitable and proper(d). It will not make any difference in the case, that the ward has since come of age, or is ready to waive her right to a settlement ; for the court will protect her against her own indiscretion, and the undue influence of her husband(e). (a) Eyre v. Countess of Shaftesbury, 2P. W. 112; Dr. Davis’s case, 1 P. W. 698. . *) Smith v», Smith, 3 Atk. 304; Pearce v. Crutchfield, 14 Ves. 206; Beard v. Travers, 1 Ves. Sen. 313; Shipbrook v. Hinchinbrook, 2 Dick. 547, 548 ; Roach v. Garvan, 1 Ves. Sen. 160. (c) Smith v. Smith, 3 Atk. 305. | @ Stevens v. Savage, 1 Ves, 154; Winch v, James, 4 Ves. 386; Bathurst v. Mur- tay, 8 Ves. 74, 78, Ball v. Coutts, 1 V. & B. 300, 301, 306. (e) Stackpole v. Beaumont, 3 Ves. 98. A472 EQUITY JURISPRUDENCE. 1134. The Court of Chancéry refuses to interfere with the custody of foreign guardians and their control of their wards, upon mere grounds of expediency and advantage to the wards. If there is within the jurisdiction, property belonging to the wards, guardians will be appointed to supplement the office and duty of the foreign guardians, in case of neglect or abuse, and to bring the matter before the court for proper directions, But no interference with the control of the person of the wards by the foreign guardians will be allowed until some case of abuse isshown. The court will not in such case entertain any question of the preference of the wards and the greater advantage to them of English control or education(a). 1135. In this Province the courthas byStatute,(b) jurisdiction to order a sale, lease, or other disposition of property of which an infant is seised or possessed, in fee or for a term of years or otherwise, wherever the court is of opinion that such sale or lease is necessary or proper for the maintenance or educa- tion of the infant; or that by reason of any part of the pro- perty being exposed to waste and dilapidation, or to deprecia- tion from any other cause, his interest requires or will be sub- stantially promoted by such disposition. But no sale, lease, or other disposition can be made against the provisions of any will or conveyance by which the estate has been devised or granted to the infant or for his use(c). 1136. In directing the sale of an infant’s estate under the Statute, the court is not governed by the consideration of what is most for their present comfort, but what is for their ultimate benefit(d). ~ (a) Nugent v. Vetzera, L. R. 2 Eq. 704. (b) Con. Stat. U. C. c. 12, vs. 50. (c) Con. Stat. U. C. c. 12, 8, 51. (d) Re McDonald, 1 Chan. Cham. R. 97, IDIOTS AND LUNATICS. 478 CHAPTER XXXVIII. IDIOTS AND LUNATICS. 1137. The Court of Chancery may be properly deemed to have had, originally, as the general delegate of the authority of the crown, as parens patria, the right, not only to have the custody and protection of infants, but also of IpioTs and Lunatics, when they have no other guardian(a) 1138. The statutes of 17 Edward II. ch. 9, 10, introduced some new rights, powers, and duties of the crown; and since that period, the jurisdiction has become somewhat mixed in practice. The jurisdiction in England is now usually treated as a special jurisdiction for many purposes (certainly not for all), derived from the special authority of the crown, under its sign-manual, to the chancellor personally, and not as be- longing to him as chancellor, or as sitting in the Court of Chancery. So that (it has been said) the sign-manual does not confer on him any jurisdiction but only a power of ad- ministration(6). From this circumstance the practice under the two branches of the jurisdiction is not the same, nor are the doctrines of the judge the same in all respects. Still, for the most part, they agree in substance; and, in a work like the present, there would be little utility in a more minute and comprehensive enumeration of the distinctions and differences between them(c). 1139. The court in this Province has not only the same ju- risdiction as the court in England over “lunatics, idiots and persons of unsound mind, aiid their property and estates,” but the statute expressly provides that the jurisdiction shall (a) Beverley’s case, 4 Co. 126; 1 Black. Comm. 303; Ex parte Grimstone, Ambl. 707; s. 0. cited 2 Ves. 235, note ; Hx parte Degge, 4 Bro. C. C. 235,-note; Oxenden v Lord Compton, 2 Ves. 71; Eyre v. Countess of Shaftesbury, 2 P. W. 118, 119 ; Cary v, Bertie, 2 Vern. 342, 343; 2 Fonbl. Eq. B. 2, Pt. 2"ch. 2,5. 1, note (a). (t) Ex parte Phillips, 19 Ves. 122; Oxenden v. Lord Compton, 2 Ves. 72. (c) Story, s. 1363, 474 EQUITY JURISPRUDENCE. include that which in England is conferred upon the Lord ‘Chancellor by a commission from the crown under the sign manual(a). 1140. Whatever may be the true origin of the authority of the crown, as to idiots and lunatics, it is clear that the chan- cellor does not, in all cases, act under the special warrant by the sign-manual. The warrant gives to the chancellor the right of providing for the maintenance of idiots and lunatics, and for the care of their persons and estates, and no more(b). When a person is ascertained to be an idiot or lunatic(c), the chancellor proceeds, under his special warrant, to commit the custody of the person and estate of the idiot or lunatic, some- times to the same person, and sometimes to different persons, according to circumstances, and to direct for him a suitable maintenance(d). After the custody is so granted, and main- tenance is assigned, the chancellor acts in other maitters, relative to lunatics, at least(e), not under the warrant by the sign-manual, but in virtue of his general power, as holding © the great seal, and keeper of the king’s conscience. The Court of Chancery is in the habit of making many orders, and enforcing them by attachment; which orders, and the manner of enforcing them, are not warranted by the sign-manual; but are warranted by the general power of the court(/). 1141. In regard to the manner of ascertaining whether a person is an idiot or lunatic, or not, a few words will suffice. Upon a proper petition, a commission may issue, on which the inquiry is to be made, as to the asserted idiocy or lunacy of the party(g). The inquisition is always had, and the question (a) Con. Stat. U. C.c. 12, 8. 31. (6) Lysaght v. Royse, 28. & L. 153. And see Gilbee v. Gilbee, 1 Ph. 121. (c) As to the jurisdiction of chancery to interfere for the protection of a lunatic not found so by inquisition, see Nelson v. Duncombe, 9 Beav. 214. (d) Dormer’s case, 2 P. W. 263; Sheldon v. Fortescue Aland, 3 P. W. 110; Ly- saght v. Royse, 28. & L. 153; Ex parte Chumley, 1 Ves. 296; Ex parte Baker, 6 Ves. 8; Ex parte Pickard, 3 V. & B.127 ; Ex parte Webb, 2 Ph. 10. (e) See Lysaght v. Royse, 28. & L. 153. (f) Ex parte Grimstone, Ambl. 707 ; Ex parte Degge, 4 Bro. C. C. 235 note ;\Zx parte Fitzgerald, 28. & L. 432, 438; Oxenden v. Lord Compton, 2 Ves. 69; 8. c. 4 Bro. C. C. 231 ; Nelsonv. Duncombe, 9 Beay. 211. (g) Lysaght v. Royse, 2S. & L. 153; Ex parte Fitzgerald, 2S. & L. 438 ; Re Webb, 2 Ph. 10; Re Gordon, 2 Ph. 242, IDIOTS AND LUNATICS. 475 tried by a jury. The commission is not confined to idiots or lunatics, strictly so called ; but in modern times it is extended to all persons, who, from age, infirmity, or other misfortune are incapable of managing their own affairs(a), and therefore are properly deemed of unsound mind, or non compotes mentis (0). In this Province, the Court may declare a person a lunatic without the delay or expense of i issuing a commis- sion(c). 1142. The Court itself may also make enquiries, and hear evidence and try the question of lunacy with or without the aid ofa jury. The alleged lunatic can, however, demand a jury(d). 1143. The jurisdiction of the Court of Chancery over luna- tics is not confined to lunatics domiciled within the country ; but a commission of lunacy may issue where the lunatic has lands or other property within the jurisdiction, although he is domiciled abroad(e). 1144. Where the personal estate of a lunatic is not sufficient for the discharge of his debts, the court may, ‘on the petition of the committee, order the real estate or a sufficient portion of it to be mortgaged, leased, or sold. And where the per- sonal estate, and the rents, profits and income of the real estate are insufficient for the maintenance of the lunatic, or that of his family, or for the education of his children, on the application of the committee, or any member of the lunatic’s family, the committee may be authorized or directed to mort- gage or sell the whole or part of the real estate as may be necessary( /). (a) See Re Monaghan, 3 J. & L. 258. (b) Gibson v. Jeyes, 6 Ves. 273 ; Ridgway v. Darwin, 8 Ves. 66; Ex patre Cranmer, 12 Ves. 446 ; Sherwood v. Sanderson, 19 Ves. 285. (c) Con. Stat. U. O. c. 12, s. 33. - (d) 28 Vic. c. 17, 3. 5. (2) Southcot’s case, 2 Ves. Sen. 402 ; Re Princess Bariantinski, 1 Ph. 375. (f) Con. Stat. U. C. c. 12, ss. 38, 29, And see Re Frost, L. R. 5 Chan. 699 ; Re Strickland, L. R. 6 Chan. 226. 476 EQUITY JURISPRUDENCE. 1145. In case any mortgage, lease, or sale has been made, the lunatic and his heirs, next of kin, devisees, legatees, executors, administrators and assigns, have the like interestin the surplus-of the money raised, as he or they would have in the estate, if no mortgage, lease, or sale had been made; and such money is to be treated and dealt with as of the same nature and character as the estate [mortgaged, leased, or sold(a). , 1146. Suits are sometimes entertained in courts of equity on behalf of persons of weak mind, brought by their next friend, where no declaration of lunacy has been applied for or made, and a decree pronounced for the protection of the plaintiffs property, and liberty given to apply in lunacy as to its application(b). ; CHAPTER XXXIX. MARRIED WOMEN. 1147. A peculiar jurisdiction was always exercised by courts of equity, in regard to the persons and property of MARRIED Women; and, principally, in regard to their pro- perty. 1148. Recent legislation has made great alterations in the position and rights of married women, in relation to pro- perty. The real estate of any married woman, owned by her at the time of her marriage, or acquired in any manner during her coverture, and the rents, issues and profits thereof are now held and enjoyed by her for her separate use, free from any estate or claim of her husband during her life time, or as tenant by the courtesy, and her receipts alone are a sufficient discharge for any rents, issues and profits. A married woman (a) Co. Stat. U. C. c. 12,8. 40. And see Campbell ». Campbell, 19 Gr. 25, + (0) Light ». Light, 25 Beav. 248. See also Conduit x Soane, 5M. &C. 111; Re Berry, 13 Beav. 455 ; Re Irby, 17 Beav. 334; Herring v. Clark, L.'‘R, 4 Chan. 167. MARRIED WOMEN. ATT is also liable upon any contract made by her, respecting her real estate, as if she were a feme sole(a). 1149. A married woman may also carry on any occupation or trade separately from her husband. All proceeds or pro- fits from any such occupation or trade; all her wages and personal earnings; and all investments of such wages, earn- ings, moneys, or property are free from the debts or disposition of the husband, and may be held and enjoyed by her, and disposed of without her husband’s consent, as freely as if she were a feme sole. The possession, actual or constructive, of the husband, of any of his wife’s personal property, does not render the same liable for his debts(0). 1150. A married; woman may also, in her own name, or in that of a trustee for her, insure for her sole benefit, or for the use and benefit of her children, her own life, or with his consent, the life of her husband, and the amount payable under the insurance, shall be receivable for the sole and sepa- rate use of the married women, or her children, as the case may be, free from the claims of the husband’s representatives, or of any of his creditors(c). 1151. A married woman may also become a stockholder or member of any bank, insurance company, or association, as if a feme sole, and may vote by proxy, or otherwise, and enjoy the same rights as other stockholders or members. She may also make deposits of money in her own name in any savings or other bank, and withdraw the same by her own cheque, and her receipt or acquittance is a sufficient legal discharge to |the bank. But any deposit or investment by a married woman of her husband’s moneys in fraud of his creditors is not protected(d). 1152. A married woman may also maintain an action in (a) Ont. Stat. 35 Vic. c.16,s. 1. This section applies only in the case of marriage since the passing of the Act, Dingman v. Austin, 33 U.C. Q. B. 190. (6) Ont. Stat. 35 Vic. ¢. 16, s. 2. (c) Ont. Stat. 35 Vic. v. 16, 8. 3. (d) Ont. Stat. 35 Vic. c. 16, ss, 5, 6. 478 EQUITY JURISPRUDENCE. her own name for the recovery of any wages, earnings, money and property, which is her separate property, and she has in her own name the same remedies, both civil and criminal, against all persons whomsoever, for the protection and secu- rity of such wages, earnings, money and property, and of any chattels or other her separate property for her own use, as if such wages, earnings, money chattels and property belonged to her as an unmarried woman. Any married woman may be sued or proceeded against separately from her husband, in respect of any of her separate debts, engagements, contracts, or torts, as if she were unmarried(a). 1158. A husband is not, by reason of any marriage since the 2nd of March, 1872, liable for the debts of his wife contracted before marriage; but the wife is liable to be sued therefor, and any property belonging to her for her separate use is liable to satisfy such debts as if’she had continued unmarried. And a husband is not liable for any debts of his wife, in res- pect of any employment or business in which she is engaged on her own behalf, or in respect of any of her contracts(b). 1154. By an Act passed in 1859(c), every married woman might by devise, or bequest, executed in the presence of two or more witnesses, neither of whom was her husband, make any devise or bequest of her separate property, real or personal, whether acquired before or after marriage, to or among her child or children, issue of any marriage, and failing there being any issue, then to her husband, or as she might see fit, in the same manner as if she were sole and unmarried. Her husband was not, however, by any such devise or bequest deprived of any right he might have acquired as tenant by the courtesy(d). : (a) Ont. Stat. 35 Vic.c. 16, s. 9. See Merrick v. Sherwood, 22 U. C. C. P. 467. It is not now necessary to make the husband of a married woman a co-defendant with her in a Suit in Chancery. Indeed, he is no longer a proper party, and may demur for want of equity, Per Chancellor Spragge, in Macfarlane ». Murphy. (6) Ont. Stat, 35 Vic. c. 16, s. 8. (c) Con. Stat, U. C. ¢. 73, 8. 16. (d) A devise by a married woman of real estate, which was her separate property, but of which her husband was in possession before the 4th of May, 1859, has bene held good, Re Hilliker, 3 Chan. Cham. R. 72. MARRIED WOMEN. 479 1155. That Act did not authorize a married woman, who. had a child, or children, to devise or bequeath her property otherwise than to or among such child ér children. Any dis- position of her property in favour either of her husband or other parties was void, and as to the portion attempted to be so disposed of there was an intestacy(a). 1156. The clause of the Act in question has since been re- pealed, and now a married woman has the same power to. dispose of her property by will that an unmarried woman has(b). 1157. The separate personal property of a married woman dying intestate is distributed in the same proportions between her husband and children as the personal property of a hus- band dying intestate is distributed between his wife and children. If there beno child or children living, at the death of the wife dying intestate, then the property is distributed as if the Act had not been passed(c). 1158. It has been held that the general scope and tenor of the Act was to protect and free from liability the property, real and personal, of married women; not to subject it to fresh liabilities except in the case of her torts, and of her debts and contracts before marriage. It conferred upon such property certain qualities incident to separate estate, but it withheld the jus disponendi(d). 1159. Notwithstanding these changes in the law, it is im- portant to give some of the leading doctrines of courts of equity respecting married women and their property, as these obtained prior to the recent statutes. (a) Mitchell v. Weir, 19 Gr. 568. (b) Ont. Stat. 36 Vic. c- 20,8.5. The words of that Act are “Every person may de- vise, bequeath, or dispose, &c.” The interpretation clause (sec. 4) says : the term “person” shall include a married woman. (c) Con. Stat. U. C. ¢. 73, s. 17. (ad) Royal Canadian Bank v. Mitchell, 14 Gr. 419, 420. And see Chamberlain v. McDonald, 14 Gr. 447. 480 EQUITY JURISPRUDENCE. 1160. At common law, husband and wife are treated, for most purposes, as one person; that is to say, the very being or légal existence of the woman, as a distinct person, is sus-_ pended during the marriage, or, at least, is incorporated and consolidated with that of her husband. Upon this principle, of the union of person in husband and wife, depend almost all the legal rights, duties, and disabilities which either of them acquire by or during the marriage(a). 1161. A man cannot, at law, grant anything to his wife, or enter into a covenant with her; for the grant would be, to suppose her to possess a distinct and separate existence. And, therefore, itis also generally true, that contracts made between husband and wife, when single, are avoided by the intermar- riage. Upon the same ground it is, that, if the wife be injured in her person or property during the marriage, she can bring no action for redress without the concurrence of her husband, neither can she be sued, without making her husband also a party in the cause(b). 1162. It is also a settled rule of the common law, founded on like principles, that, in virtue of the marriage, the husband becomes entitled to all the personal estate, including the choses in action of the wife, and may appropriate the whole to his own use. Hence, if a promissory note or bond be given to a woman before marriage by a third person, to secure an an- nuity to her, upon her subsequent marriage, her husband may release the note or bond, and by the release of the security, the annuity itselfis gone. It would be otherwise, if the annuity were secured on land, for then the husband could not release it without the concurrence of his wife; and, in order to extin- guish the security, she must join with him(c). 1163. In courts of equity, although the principles of law, in regard to husband and wife, are fully recognized and enforced in proper cases, yet they are not exclusively considered. On (a) 1 Black. Comm. 442. é (b) 1 Black. Comm. 443. {c) Hare v. Beecher, 12 Sim. 465, 467 ; Story, s. 1367a. MARRIED WOMEN. 481 the contrary, courts of equity, for many purposes, treat the husband and wife as distinct persons, capable (in a limited -sense) of contracting with each other, of suing each other, and of having separate estates, debts, and interests(a). And in cases respecting her separate estate, she may also be sued without him(s); although he is ordinarily required to be joined for the sake of conformity to the rule of the law, as a nominal party, whenever he is within the jurisdiction of the court, and can be made a party(c). 1164. By the general rules of law, contracts made between husband and wife before marriage become, by their matrimo- nial union, utterly extinguished(d). Thus, for example, if a man should give a bond to his wife, or a wife to her husband, before marriage, the contract created thereby would, at law, be discharged by the intermarriage(e). Courts of equity, although they generally follow the same doctrine, will, in special cases, in furtherance of the manifest intentions and objects of the parties, carry into effect such a contract made before marriage between husband and wife, although it would be avoided at law(/). | 1165. In regard to contracts made between husband and wife after marriage, @ fortiori, the principles of the common law apply to pronounce them a mere nullity, for there is deemed to be a positive incapacity in each to contract with the other. Here again, although courts of equity follow the law, they will, under particular circumstances, give full effect and validity to postnuptial contracts. Thus, for example, if a wife, having a separate estate, should, bond fide, enter into a contract with her husband, to make him a certain allowance (a) Arundell v. Phipps, 10 Ves. 144, 149; Cannel v, Buckle, 2 P. W. 243, 244, (8) Dubois v. Hole, 2 Vern. 613. See Travers v. Bulkeley, 1 Ves. Sen. 384; Brooks v, Brooks, Prec. Ch. 24; Kirk v. Clark, Prec. Ch, 275; Lampert v. Lampert, 1 Ves. 21; Griffith ». Hood, 2 Ves. Sen. 452. (c) See Lilia v. Airey, 1 Ves. 278. But see now, Note to Sec. 1152. (d) Co. Litt. 112 a, 1875; Com. Dig. Baron & Feme, D. 1. (e) Com. Dig. Baron & Feme, D.1; Cro. Car. 551 ; Co. Litt, 264 b. (f) Rippon ». Dowding, Ambl. 566. 31 482 EQUITY JURISPRUDENCE. out of the income of such separate estate for a reasonable con- sideration, the contract, although void at law, would be held obligatory, and would be enforced in equity(a). So, if the husband should, after marriage, for good reasons, contract with his wife, that she should separately possess and enjoy property bequeathed to her, the contract would be upheld in equity (0). 1166. If an estate should be devised to a husband for the separate use of his wife, it would be considered as a trust for the wife, and he would be compelled to perform it(e). 1167. But where a legacy to the wife was paid to her, and both she and her husband executed a release, and, immedi- ately after, the money came into the hands of the husband, and he employed it, partly in his own business, and partly in the family expenditure, with the assent of the wife, there being no other evidence whether the wife expected it to be held in trust for her use, it was considered there was no such trust, and that she could not claim it out of her husband’s estate(d). 1168. Upon similar grounds, a wife may become a creditor of her husband, by acts and contracts during marriage ; and her rights, as such, will be enforced against him and his re- presentatives. Thus, if a wife should unite with her husband to pledge her estate, or otherwise to raise a sum of money out of it to pay his debts, or to answer his necessities, whatever might be the mode adopted to carry that purpose into effect the transaction would, in equity, be treated according to the true intent of the parties. She would be deemed a creditor or a surety for him (if so originally understood between them) for the sum so paid; andshe would be entitled to reimburse- (a) More v, Freeman, Bunb. 205. (6) Harvey v. Harvey, 1 P. W. 125, 126; 2 Vern. 659, 760; Com. Dig. Chancery, 2M. 11, 12, 14. (c) Darley v, Darley, 3 Atk. 399; Rich v- Cockell, 9 Ves. 375. (d) Gardner v, Gardner, 5 Jur. n. 8: 975; 1 Giff. 126. MARRIED WOMEN. 483 ment out of his estate, and to the like privileges as belong to other creditors(a). 1169. In respect to gifts or grants of property by a husband to his wife after marriage, they are, ordinarily (but not univer- sally), void at law. But courts of equity will uphold them in many cases where they would be held voidat law; although, in other cases, the rule of law will be recognized and enforced (6). Ifthe nature and circumstances of the gift or grant, whe- ther it be express or implied, are such that there is no ground to suspect fraud, but it amounts only to a reasonable provision for the wife, it will, even though made after coverture, be sus- tained in equity(c). 1170. Gifts, made by the husband to the wife during the coverture, to purchase clothes, or personal ornaments, or for her separate expenditures (commonly called pin-money), and personal savings and profits made by her in her domestic management, which the husband allows her to apply to her own separate use(d), will be held to vest in her, as against her husband, but not as against his creditors, an unimpeachable right of property therein, so that they may be treated as her exclu- sive and separate estate(c). It is true that courts of equity require clear and incontrovertible evidence to establish such gifts as a matter of intention and fact; but when that is es- tablished full effect will be given to them(/). A fortiori, such allowances provided for by marriage articles, or by a settle- ment before marriage, even without the intervention of (a) Tate v. Austin, 1 P. W. 264; 2 Vern. 689; Pawlet v. Delaval, 2 Ves, Sen. 663 , 669 ; Clinton v. Hooper, 3 Bro. C. C. 201; Innes v. Jackson, 16 Ves. 356, 367 ; 1 Bligh | 104, 114, 115. (b) Beard v. Beard, 3 Atk. 72. . (c) Walter v. Hodge, 2 Swanst. 106, 107; Lucas v. Lucas, 1 Atk, 270, 271. (@) Slanning v. Style, 3 P. W. 337. Pin money is a very peculiar sort of gift for a particular purpose and object, and whether it is secured by a settlement or otherwise, it is still required to be applied to those purposes and objects, Jodrell Jodrell, 9 Beav. 45. (e) Wilson v. Pack, Prec. Ch. 295, 297; Sir Paul Neal’s case, cited in Prec. Ch. 44 Lucas v. Lucas, 1 Atk. 270; Walter v. Hodge, 2 Swanst. 106, 107; Graham v. Lon- _ donderry, 3 Atk. 393, See Lloyd v. Pughe, L. R. 14 Eq. 241 ; 8 Chan. 88. (f) McLean v. Longlands, 5 Ves. 78, 79; Walter v. Hodge. 2 Swanat. 103. 484 EQUITY JURISPRUDENCE. trustees, will be deemed valid in equity, to all intents and purposes, not only against the husband, but also against his creditors(a). 1171. The strict rules of the old common law would not per- mit the wife to take or enjoy any real or personal estate separate from or independent of her husband. Courts of equity have, however, for a great length of time, admitted the doctrine, that a married woman is capable of taking real and personal estate to her own separate and exclusive use; and that she has also an incidental power to dispose of it. 1172. The power to hold real and personal property to her own separate and exclusive use may be, and often is, reserved to her by marriage articles or by an actual settlement made before marriage; and, in that case, the agreement becomes completely obligatory between the parties after marriage, and regulates their future rights, interests and duties. In like manner, real and personal property may be secured for the separate and exclusive use of a married woman after marriage ; and thus the arrangement may acquire a complete obligation between the parties(b). : 1173. Whenever real or personal property is given or de- vised, or settled upon a married woman, either before or after marriage, for her separate and exclusive use, without the in- tervention of trustees, the intention of the parties shall be effectuated in equity, and the wife’s interest protected against the marital rights and claims of her husband, and of his creditors also(c). Although the agreement is made between husband and wife alone, the trust will attach upon him, and be enforced in the same manner, and under the same circum- (a) Story, s. 1375. (b) Story, s. 1379. (c) Parker v. Brooke, 9 Ves. 583 ; Bennet v. Davis, 2P. W. 316; Lucas v. Lucas, 1 Atk. 270; Pawlet v Delaval, 2 Ves. Sen. 666, 667 ; Slanning v. Style, 3 P. W. 337; Rollfe v. Budder, Bunb. 187 ; Darley v. Darley, 3 Atk. 399: Rich ». Cockell, 9 Ves. 375; Davison v. Atkinson, 5 T. R. 434 ; Lee v. Prieaux, 3 Bro. C. C. 383 ; Wood- meston v. Walker, 2 R. & M. 197 ; Major v. Lansley, 2 R. & M. 355. MARRIED WOMEN. 485 stances, that it would be if he were a mere stranger(a). It makes no difference, whether the separate estate be derived from her husband himself, or from a mere stranger ; for, as to such separate estate, when obtained in either way, her hus- band will be treated as a mere trustee, and prohibited from disposing of it to her prejudice(b). 1174. Under what circumstances, property given, secured, or bequeathed to the wife, will be deemed a trust for her separate and exclusive use is a matter which involves some nice dis- tinctions. When, from the terms of the gift, settlement or bequest, the property is expressly, or by just implication, de- signed to be for her separate and exclusive use (for technical words are not necessary), the intention will be fully acted upon; and the rights and interests of the wife sedulously pro- tected in equity(c). .But the question which most frequently arises is, what words are sufficiently expressive, for the pur- pose must clearly appear beyond any reasonable doubt(d). 1175. If the language of a marriage settlement, made be- fore marriage, or of a gift or bequest to a married woman after marriage, be, that she is to have the property “to her sole use or disposal ;” or, “to her separate use or disposal’”(e); or, “to her sole use and benefit’(/); or, ‘‘ for her own use, and at her own disposal”(g) ; or, “ to her own use during her life, inde- pendent of her husband”(h); or, “that she shall enjoy and receive the issues and profits”(z); in allthese cases the marital (a) 2 Fonbl. Eq. B. 1, ch. 2, 5. 6, note (n), &e. (6) See Allen vy. Walker, L. R. 5 Ex. 187. But see Ashton». Blackshaw, L. R. 9 Eq. 510. (c) Darley v. Darley, 3 Atk. 399; Tyrrell v. Hope, 2 Atk. 561; Stanton v. Hall, 2 R. & M. 175; Newlands v. Paynter, 10Sim. 377; 4M. & C. 408. (@) Lumb v, Milnes, 5 Ves, 517 ; Brown v. Clark, 3 Ves. 166; Ex parte Ray, 1 Mad. 199 ; Rich v. Cockell, 9 Ves. 370, 377; Wills v. Sayers, 4 Mad. 409 ; Massey v. Parker, 2M. &K. 174. (e) Adamson v. Armitage, Coop. t. Eld. 283; 19 Ves. 416 ; Wills v. Sayers, 4 Mad. 409. (f) —~»..Lynne, 1 Younge, 562. g) Prichard v. Ames, T. & R. 222; Stanton v. Hall, 2R. & M. 175. (h) Wagstaff v. Smith, 9 Ves. 520. (¢) Tyrrell », Hope, 2 Atk. 561, 486 EQUITY JURISPRUDENCE. rights of her husband will be excluded, and the property will be for her exclusive use. 1176. A bequest to a married woman, her “receipt to the executors to be a sufficient discharge to the executors,” is equivalent to saying, to her sole and separate use(a). So, money paid to the husband “for the livelihood of the wife ;” and money given to a married woman, for her own use, “independent of her husband ;” and money or stock given to such married woman, “not to be disposed of by her hus- band, without her consent;” will be construed to give her the property to her sole and separate use(b). So, a bequest to a married woman and her infant daughter, to be equally divided between them, share and share alike, “for their own use and benefit, independent of any other person,” will be construed to mean to their sole and separate use(c). So, a bequest to a married woman, “for her benefit, independent of the control of her husband,” will receive the like con- struction(d). 1177. But the woman’s power over her separate property may be qualified. Thus, where there was a bequest of money and leaseholdsto afeme sole, “for her own absolute use, with- out liberty to sell or assign during her life,” it was held that she took the property absolutely, but without any power to dispose of it during her life, or, in other words, with a restriction against alienation during her life(e). 1178. A gift or bequest, after marriage, to a married woman, “for her own use and benefit(/);” or, “to pay the same into (a) Lee v. Prieaux, 3 Bro. C. C, 381; Lumb v. Milnes, 6 Ves. 517; Tyler v. Lake, 2R. & M. 183 ; ——». Lyne, 1 Younge, 562; Stanton v. Hall, 2R. & M. 180; Black- low v. Laws, 2 Ha. 40, 49. (b) Darley v. Darley, 3 Atk. 399 ; Wagstaff v. Smith, 9 Ves. 520, 524; Johnes ». Lockhart, 3 Bro. C. C. 383, note ; Tyler v. Lake, 2.R & M. 183. (c) Margetts v. Baringer, 7 Sim. 482. (d) Simons v, Horwood, 1 Keen, 7. (e) Baker v. Newton, 2 Beav. 112. See Arnold ». Woodhams, L. R. 16 Eq. 29. (f) Kensington v. Dollond, 2 M. & K. 184 ; Wills v. Sayers, 4 Mad. 409; Roberts v- Spicer, 5 Mad. 491. . MARRIED WOMEN. 487 her own proper hands, to and for herown use and benefit(a) ;” or to pay an annuity “into her proper hands, for her own pro- per use and benefit(b);” have been held not to amount fo a sufficient expression of an intention to exclude the marital rights of the husband; for, although the money is to be paid into her own hands, or to her own use, yet there is nothing in that inconsistent with its being subject to his marital rights. So, an annuity given in trust for a married woman for life, “to pay the same to her and her assigns,” will not exclude the marital rights of the husband(c). 1179. Wherever a trust is creaicd, or a power is reserved by a settlement, to enable the wife after marriage to dispose of her separate property, either real or personal, it may be executed by her in the very manner provided for, whether it be by deed or other writing, or by a will or appointment. And courts of equity will, in all cases, enforce against heirs, devisees, and trustees, as well as against the husband and his representatives, the rights of the donee or appointee of the wife(d). 1180. At law a married woman is, during her ,coverture, generally incapable of entering into any valid contract to bind either her person or her estate(e). In equity, also, it is now clearly established that she cannot by contract bind her per- son or her property generally. The only remedy allowed will be against her separate property(/). (a) Tyler v. Lake, 2R. & M. 183. (b) Blacklow v. Laws, 2 Ha. 49. (c) Dakins v, Berisford, 1 Ch. Cas. 194. See also Lumb ¢. Milnes, 5 Ves. 517 ; Stan- ton v. Hall, 2R. & M.175. Andsee Appleton v. Rowley, L. R. 8 Eq. 139. (d) Peacock v. Monk, 2 Ves. Sen. 191; Doe v. Staples, 2 T. R. 695; Wright vw. Englefield, 2 Ed. 239; Oke v. Heath, 1 Ves. 135; Marlborough v. Godolphin, 2 Ves. Sen. 75; Southby v. Stonehouse, 2 Ves. Sen. 610 ; Dowell v. Dew, 1 Y. & C. 345. And see Wood v. Wood, L. R..10 Eq. 220. (e) Marshall v. Rutton, 8 T. R. 545. (f) See note to Hulme v. Tenant, 1 Bro. C. C. 20; Sockett v. Wray, 4 Bro. C. C. 485 ; Nantes v. Corrock, 9 Ves. 189; Jones v. Harris, 9 Ves. 496, 497 ; Stuart v. Lord Kirkwall, 3 Mad. 387; Owens v. Dickenson, Cr. & Ph. 48; Francis v Wigzell, 1-Mad. 285. See Shattock v, Shattock, 12 Jur. n. 8. 405 ; Johnson ». Gallagher, 7 Jur. N. . 273, 488 EQUITY JURISPRUDENCE. 1181. The doctrines maintained by courts of equity, as to the nature and extent of the liability of the separate estate of a married woman for her debts and other charges created dur- ing her coverture, are somewhat artificial, and cannot all be resolved into the general proposition, that she is, as to such property, to be deemed a feme sole. In the first place, her separate property is not in equity liable for the payment of her general debts, or of her general personal engagements, So far, courts of equity follow the analogies of the common law. If, therefore, a married woman should, during her coverture, contract debts generally, without doing any act, indicating an intention to charge her separate estate with the payment of them, courts of equity will not entertain any juris- diction to enforce payment thereof, out of such separate estate during her life(a). 1182. In the second place, her separate estate will, in equity, be held liable for all the debts, charges, incumbrances, and other engagements, which she does expressly, or by implica- tion, charge thereon ; for, having the absolute power of dis- posing of the whole, she may, @ fortiori, dispose of a part thereof(b). Her agreement, however, creating the charge, is not, properly speaking, an obligatory contract, for, as a feme covert, she is incapable of contracting ; but is rather an appoint- ment out of her separate estate. The power of appointment is incident to the power of enjoyment of her separate pro- perty ; and every security thereon, executed by her, is to be deemed an appointment pro tanto, of the separate estate(c). 1183. The great difficulty, however, is, to ascertain what circumstances, in the absence of any positive expression of an intention to charge her separate estate, shall be deemed suffi- (a) Story, s. 1398 ; Duke of Bolton v. Williams, 2 Ves. 138, 150, 156; Jones v. Har- ris, 9 Ves. 498 ; Stuart v. Kirkwall, 3 Mad. 387 ; Greatley ». Noble, 3 Mad. 94; Agui- lar v. Aguilar, 5 Mad. 418. But see Chubb v. Stretch, L. R. 9 Eq. 555. (b) Hulme v. Tenant, 1 Bro. C. C. 16,20; Browne v. Like, 14 Ves. 302; Peacock v. Monk, 2 Ves. Sen. 190; Grigby v. Cox, 1 Ves. Sen. 517; Greatley v. Noble, 3Mad, 94. (c) Story, s. 1399; Stuart v. Lord Kirkwall, 3 Mad. 387 ; Greatley v. Noble, 3 Mad. 94; Field v. Sowle, 4 Russ. 112. See also Aguilar v. Aguilar, 5 Mad. 418. But see Q@wens v. Dickenson, Cr. & Ph. 48, 52 to 54, MARRIED WOMEN. 489 cient to create such a charge; and what sufficient to demon- strate an intention to create only a general debt. It is agreed that there must be an intention to charge her separate estate, otherwise the debt will not affect it. The fact, that the debt has been contracted during the coverture, either as a principal or as a surety for herself, or for her husband, or jointly with him, seems ordinarily to be held prima facie evidence to charge her separate estate, without any proof of a positive agreement or intention so to do(a). 1184. After a thorough revision of the leading cases upon this subject from the earliest period, Lord Justice Turner came to the conclusion, that a court of equity, having created for married women a separate estate, has enabled them to con- tract debts in respect of it; that their separate estate may be subjected to the payment of such debts; and that a court of equity will give execution against it; but it was held, that something more is necessary to bind the separate estate of a married woman than the mere existence of such facts as would create a debt against a single woman. It should appear that an engagement was made with reference to and upon the faith or credit of the estate. And where a married woman, living apart from her husband and having separate estate, contracts debts, the court will impute to her the intention of dealing with her separate estate, unless the contrary is shown (0). 1185. At the common law, marriage amounts to an absolute gift to the husband of all the goods, personal chattels, and other personal estate of which the wife is actually or benefi- cially possessed at that time, in her own right, and of such (a) Hulme v. Tenant, 1 Bro. C. C. 16; Heatley v. Thomas, 15 Ves, 596; Bullpin ». Clarke, 17 Ves. 365; Stuart v. Lord Kirkwall, 3Mad. 387. See Owens v. Dickenson, Ci & Ph. 48, 52; Crosby v. Church, 3 Beav. 489. See Tullett v. Armstrong, 4 Beav. 319, 323. (b) Johnson v. Gallagher, 3 D. F. & J. 494. The same principle is maintained in Dillon v. Grace, 28. & L. 456. See also Vaughan v. Vanderstegen, 2 Drew. 165, 363 ; ‘Picard vy. Hine, L. R. 5 Chan. 274; McHenry v. Davies, L. R, 10 Eq. 88; Butler ». Cumpston, L. R. 7 Eq. 16 ; Matthewman’s case, L. R. 3 Eq, 781 ; London C. Bank of “Australia ». Lampriere, L. R.4 P. C. 572. 490 - EQUITY JURISPRUDENCE. other goods, personal chattels, and personal estate as come to her during the marriage. By marriage the husband clearly acquires an absolute property in all the personal estate of his wife, capable of immediate and tangible possession. But if it is such as cannot be reduced into possession, except by an action at law, or by a suit in equity, he has only a qualified interest therein, such as will enable him to make it an abso- lute interest by reducing it into possession. If it is a chose in action, properly so called, that is, a right, which may be as- serted by an action at law, he will be entitled to it, if he has actually reduced it into possession (for a judgment is not sufficient) in his lifetime. But ifit is a right, {which must be asserted by a suit in equity, as where it is vested in trustees, who have the legal property, he has still less interest. He cannot reach it without application to a court of equity, in which he cannot sue without joining her with him. If the aid of a court of equity is asked by him in such a case, it will make him provide for her, unless she consents to give such equitable property to him, and this is called the wife’s equity to a settlement(a). 1186. The precise origin of this right of the wife, or the pre- cise grounds upon which it was first established are not easily ascertained. It has been said that itis an equity grounded upon natural justice ; that it is that kind of parental care which a court of equity exercises for the benefit of orphans, and that as a father would not have married his daughter without insisting upon some provision, so a court of equity, which stands in loco parentis, will insist on it(b). This is not so much a statement of the origin as it is of the effect and value of the jurisdiction. The truth seems to be, that its origin cannot be traced to any distinct source. It isa creature of a court of equity, and stands upon its own peculiar cooly and practice(c). (a) Story, 8s. 1402, 1405 ; Langham v. Nenny, 3 Ves. 469 ; Bond v. Simmons, 3 Atk. 20, 21. (b) Jewson v. Moulson, 2 Atk. 419. (c) Story, s. 1407 ; Murray v. Elibank, 10 Ves. 90; 13 Ves. 6. MARRIED WOMEN. 491: 1187. A settlement will be decreed to the wife whenever the husband seeks the aid or relief of a court of equity to pro- cure the possession of any portion of his wife’s fortune(a). In such a case, it is of no consequence whether the fortune accrues before or during the marriage ; whether the property consists of funds in the possession of trustees, or of third per- sons, or whether it is in possession of the court or under its administration, or not; for, under all these circumstances, the equity of the wife will equally attach to it(6). 1188. This equity of the wife was for a long time supposed to be confined to the absolute personal property of the wife. It was afterwards extended to the rents and profits of the real estate, in which she has a life-interest(c), although it was not then generally extended, as against the husband personally, to equitable interests, in which she had a life-estate only(d). It seems now to have acquired a wider range, and is at present applied to all cases of the real estate of the wife, whether legal or equitable, where the husband or his assignee is obliged to come into a court of equity to enforce his rights against the property(e). 1189. Where the husband has made an assignment of the wife’s choses in action, or other equitable interests, it is settled, that the assignees ini bankruptcy or insolvency of the husband, and also his assignees for the payment of debts, due to his creditors generally, are bound to make a settlement upon her out of her choses in action and equitable interests assigned to them, whether they are absolute interests or life-interests only in her, in the same way, and to the same extent, and under the same circumstances, as he would be bound to make one; for it is a general principle, that such assignees take the pro- (a) Jewson v. Moulson, 2 Atk. 419, 420; Sleech v. Thorington, 2 Ves. Sen. 561; Att- Gen. », Whorwood, 1 Ves. Sen. 538, 539; Bosvil v. Brander, 1 P. W. 459, Mr. Cox's note. (0) Story, s. 1408. (c) Burdon v. Dean, 2 Ves. 607; Sturgis v. Champneys, 5M, &C. 97, 101. (d) Eliot v. Cordell, 5 Mad. 155. But see Stanton v. Hall, 2 R. & M. 175. (e) Sturgis v, Champneys, 5 M. & C. 97, 105 ; Hanson v. Keating, 8 Jur. 949. 492 EQUITY JURISPRUDENCE. perty, subject to all the equities which affect the bankrupt, or insolvent, or general assignor(a). Such assignees also take the property, subject to the wife’s right of survivorship, in case the husband dies before the assignees have reduced her choses in action and equitable interests into possession(b). 1190. The principal controversy which hasarisen is, whether a special assignee or purchaser from the husband, for a valua- ble consideration of her choses in action, or equitable interests, is bound to make such a settlement. It is now firmly es- tablished, that he is bound to do so(c). 1191. The court in this Province has jurisdiction to decree alimony to any wife who would be entitled to alimony by the law of England, or to any wife who would, by the law of England, obtain a divorce and alimony as incident thereto, or to any wife whose husband lives apart from her without any sufficient cause and under circumstances which would entitle her, by the law of England, toa decree for a restitution of con- jugal rights(d). 1192. Although in England the mere fact of desertion by the husband will not entitle the wife to a decree for alimony, still, as in this country, the court cannot decree restitution of conjugal rights, desertion would he sufficient to warrant a decree for alimony, and desertion coupled with other acts of cruelty forms a material ingredient in determining a wife’s right to relief(e). (a) Jewson v- Moulson, 2 Atk. 420; Jacobson v, Williams, 1 P. W. 382; Bosvil ». Brander, 1 P. W. 458; Burdon v. Dean, 2 Ves. 607 ; Prior v. Hill, 4 Bro. C. C. 139; Oswell v. Probert, 2 Ven. 680; Mitford v. Mitford, 9 Ves. 87, 97, 100 ; Elliott v. Cor- dell, 5 Mad. 149 ; Eedes v. Redes; 11 Sim. 569, 570; Sturgis v. Champneys, 5M. &C. 97, 103, 104. (b) Pierce v. Thornley, 2 Sim. 167 ; Honner v. Morton, 3 Russ. 64, 68, 69; Gayer v. Wilkinson, 1 Bro. C. C. 49; Mitford v. Mitford, 9 Ves. 87, 97,99; Purdew v. Jackson, 1 Russ. 64, (c) Mitford v. Mitford, 9 Ves. 87, 97,99; Elliot ». Cordell, 5 Mad. 149; Macaulay v, Phillips, 4 Ves. 19; Like v. Beresford, 3 Ves. 506; Pryor v. Hill, 4 Bro. C. C. 139; Purdew v. Jackson, 1 Russ. 1, 70; Honner v. Morton, 3 Russ. 64, 68; Pope v. Cra- shaw, 4 Bro. C. C. 326; Harwood v. Fisher, 1 Y. & C. Ex. 112; Johnson »v. Johnson, 1J. & W. 472, 479. See Re Carr’s Trusts, L. R. 12 Eq. 609. (d) Con, Stat. U. C. c. 12, 5. 29. (e) Severn v. Severn, 3 Gr. 431. See Rodman v. Rodman, 20 Gr. 428 ; Edwards v. ‘Edwards, 20 Gr. 392, MARRIED WOMEN. 493 1193. The right of a wife is to reside with her husband in his home, or in the joint home of both; where, therefore, it ap- peared that the husband resided with his children (by a for- mer wife) and compelled his wife to live in lodgings, although no violence or ill-treatment was shown on the part of the hus- band to the wife, a decree for alimony was made in her favour(a) 1194, In fixing the amount of alimony, regard is had to the station in life, and position of the parties, and also to the nature of the property of which the husband is possessed. A per- centage upon the annual value of the husband’s property will very rarely, in this country, form a just measure for the allow- ance of alimony(b). As the wife and family are in most cases supported, partly at least, by the labour and skill of the hus- band, if any proportion is taken as the scale of allowance, the . annual value of that labour and skill should be added to the annual value of the husband’s property(c). 1195. As the purpose of allotting alimony to a wife is to afford her the means of supporting herself, whilst living apart from her husband, and the court does not contemplate the parties living separate for life, but looks forward to a recon- ciliation between them, it will not sanction the payment by the husband of a sum in gross, in lieu of an annual sum. by way of alimony(d). 1196. A deed of separation, entered into by the husband and wife alone, without the intervention of trustees, is utterly void(e). And a deed for an immediate separation, with the intervention of trustees, will not be enforced so far as it regards any covenant for separation ; but only so far as maintenance (a) Weir v. Weir, 10 Gr. 565. (b) Severn ». Severn, 7 Gr. 109; McCulloch ». McCulloch, 10 Gr. 322 ; Wilcocks w Wilcocks, 30 L. J. Prob, 205. See also, Whildon v. Whildon, 5 L. T. n. 8. 138. (c) McCulloch v. McCulloch, 10 Gr. 322. (@) Hagarty v. Hagarty, 11 Gr. 562. ; (e) Legard v. Johnson, 3 Ves. 352, 359, 361; Westmeath v. Salisbury, 5 Bligh, N. R 375. 494 EQUITY JURISPRUDENCE. is covenanted for by the husband, and the trustees covenant to exonerate him from any debts contracted therefor(a), 1197. A deed containing a covenant with trustees for a future separation of the husband and wife, and for her main- tenance consequent thereon, will be utterly void(b). And even ‘in case of a deed for an immediate separation, if the parties come together again, there is an end to it with respect to any future, as well as to the past separation(c). CHAPTER XL. AWARDS, 1198. Courts of equity also formerly exercised a large juris- diction in matters of AwARDs, but in consequence of statutes which have been passed on this subject, the jurisdiction has become, in a practical sense, although not in a theoretical view, greatly narrowed, and is now of rare occurrence. It may, however, be of use to refer to some of the more ordinary cases in which that jurisdiction was originally exerted, and still may be exerted, in cases where no statute interferes with its exer- cise. 1199. In cases of fraud, mistake, or accident, courts of equity may, in virtue of their general jurisdiction, interfere to set aside awards upon the same principles, and for the same rea- sons, which justify their interference in regard to other mat- 1a) Legard v. Johnson, 3 Ves. 359, 360; Westmeath v. Westmeath, Jac. 126 ; Wor- rall v. Jacob, 3 Meriv. 267; Jee v. Thurlow, 2 B. & Cr. 547; Elworthy ». Bird, 28. & S. 372; Rodney v. Chambers, 2 East, 283; Westmeath v. Salisbury, 5 Bligh, nN. & -339, 375 ; In Hamilton v, Hector, L. R. 6 Chat, 701 ; 13 Eq. 511; a stipulation as to where the children should pass their holidays was enforced. (0) Durant v. Titley, 7 Price, 577; Hindley v. Westmeath, 6 B.,& Cr. 200; Westmeath v. Salisbury, 5 Bligh, n. n. 367, 373, 375, 393, 395, 396, 400, 415 ; St. John », St. John, 11 Ves. 526. (c) Fletcher v. Fletcher, 2Cox, 99; 3 Bro. C. C, 619; Bateman v. Countess of Ross, 1 Dow, 235; Westmeath v. Salisbury, 5 Bligh, n. x. 375, 395; St. John v. St. John, 11 Ves. 537, So where no separation has taken place, the parties having continued to live together, a separation deed is void, Bindley v, Mulloney, L. R. 7 Eq. 343. be it aoe AWARDS. 495 ters, where there is no adequate remedy at law(a). And if there be no statute to the contrary, an agreement by the party on entering into an arbitration, not to bring any action or suit in equity to impeach the award made under it, will be held not obligatory, if there be in fact, from fraud or mistake, or accident, or otherwise, a good ground to impeach it, or to re- quire it to be set aside(b). 1200. Where, after the hearing was closed, one of the arbi- trators requested, and they all received, a statement in writ- ing from one of the parties containing new and different items of claim from any presented at the hearing, and this without the knowledge of the other party, a court of equity will enjoin a suit at law upon, and set aside, the award; notwithstand- ing the arbitrators swear the statement had no influence upon their award, and there is no imputation of fraud or corruption against them(c). 1201. Where at the commencement of a reference, the arbi- trator for one side, conferred privately with the parties who nominated him, on the matters in question, and on the evi- dence to be offered ; and continued this course to the end, it was held that the impropriety was not cured by showing that after the reference had made some progress, the other arbitrator acted with similar irregularity on the other side(d). And where two out of three arbitrators took the evidence of a witness in the absence of one of the parties and of the other arbitrator, and it appeared that they were influenced by the evidence then given in making their award, it was set aside (e). , 1202. When an award was agreed upon between arbitra- (2) See Champion v. Wenham, Ambl. 245; Knox v. Symmonds, 1 Ves. 369; South Sea Company v. Bumstead, 2 Eq. Abr. 80, pl. 8; Gartside v. Gartside, 3 Anst. 735; Earl ». Stocker, 2 Vern. 251; Ives v. Metcalfe, 1 Atk. 64; Emery v. Wase, 5 Ves. 846, 847; Att.-Gen. v, Jackson, 5 Ha. 366. (b) See Nichols v. Chalie, 14 Vez. 264, 269 ; Nichols v. Rowe, 3 M. & K. 431 ; Street », Rigby, 6 Ves. 815 ; Cheslyn v. Dalby, 2 Y.& C. 170. (c) Story, s. 1452 a. (@) Re Lawson & Hutchinson, 19 Gr. 84. (e) Hickman v. Lawson, 8 Gr. 386. 496 EQUITY JURISPRUDENCE. tors, and afterwards one of them having taken a new view of the case, dissented, and the others, after discussing by letter the dissenting arbitrator’s views, made and published the award as at first agreed upon, it was set aside, because the ar- bitrators should have met for the discussion. Correspond- ence on the subject was considered insufficient, even although the dissenting arbitrator did not object to that method(a). 1203. In regard to a mistake of the arbitrators, it may be in a matter of fact, or in a matter of law. If, upon the face of the award, there is a plain mistake of law, or of fact, material to the decision, which misled the judgment of the arbitrators, there can be little or no reason to doubt that courts of equity will grant relief(b). But the difficulty is, whether the mistake of fact or of law is to be made out by extrinsic evi- dence; and whether a mistake of law upon a general submis- sion, involving the decision both of law and of fact, consti- tutes a valid objection. Upon these points, the decisions of courts of law and courts of equity are not reconcilable with each other ; and it is not easy to lay down any doctrine, which may not be met by some authority(e). 1204. Perhaps the following will be found to be the doc- trines most reconcilable with the leading authorities. Arbi- trators, being the chosen judges of the parties, are, in general, to be deemed judges of the law, as well as of the facts, appli- cable to the caseupon them. If no reservation is made in the submission, the parties are presumed to agree, that every question, both as to law and fact, necessary for the decision, is to be included in the arbitration. Under a general sub- mission, therefore, the arbitrators have rightfully a power to decide on the law and on the fact. And, under such a sub- mission, they are not bound to award on mere dry principles of law; but they make their award according to the principles. (a) Jekyll v. Wade, 8 Gr. 363. (0) Corneforth v. Greer, 2 Vern. 705; Ridoutv. Payne, 1 Ves, Sen. 11; 3 Atk. 494. (c) Story, s. 1453. In Chase v. Westmore, 13 East, 158, Lord Ellenborough said: “T fear it is impossible to lay down any general rule upon this subject, in what cases the court will suffer an award to be opened. It must be subject to some degree of un- certainty, depending upon the circumstances of each case.” AWARDS. 497 of equity and good conscience(a). Subject, therefore, to the qualifications, hereafter mentioned, a general award cannot be impeached collaterally, or by evidence aliunde, for any mistake of law or of fact, unless there be some fraud or misbehaviour in the arbitrators(6). 1205, If arbitrators refer any point of law to judicial inquiry by spreading it on the face of their award, and they mistake the law in a palpable and material point, their award will be set aside(c). Ifthey admit the law, but decide contrary thereto upon principles of equity and good conscience, although such intent appear upon the face of the award, it will constitute no objection to it. If they mean to decide strictly according to law, and they mistake it, although the mistake is made out by extrinsic evidence, that will be sufficient to set it aside(d). But their decision upon a doubtful point of law, or in a case where the question of law itself is designedly left to their judgment and decision, will generaily be held conclusive(e). 1206. In'regard to matters of fact, the judgment of the arbi- tratorsis ordinarily deemed conclusive(/). If, however, there is a mistake of a material fact apparent upon the face of the award: or, if the arbitrators are themselves satisfied of the mistake, and state it (although it is not apparent on the face of the award); and if, in their own view, it is material to the award, then, although made out by extrinsic evidence, courts of equity will grant relief(g). (a) Knox v. Symmonds, 1 Ves. 369; South Sea Company v. Bumstead, 3 Eq. Abr. 80, pl.8; Delver v, Barnes, 1 Taunt. 48, 51. (6) Morgan v. Mather, 2 Ves. 15, 22; Knox v. Symmonds, 1 Ves. 369; Chace v. Westmore, 13 East, 357, 358. See Nichols v. Roe, 3M. & K. 438. (c) Knox v. Symmonds, 1 Ves. 369; Ridout ». Payne, 3 Atk. 494; Kent ». Elstop, 3 East, 18. (d) Young v. Walter, 9 Ves. 364, 366; Blennerhassett v. Day, 2 B. & B. 120; Rich- ardson v. Nourse, 3B. & Ald. 237. (¢ Ching v. Ching, 6 Ves. 282 ; Young v. Walter, 9 Ves. 364; Chace v. Westmore 18 East, 357 ; Campbell v. Twemlow, 1 Price, 81; Steff v Andrews, 2 Mad. 6, 9; Wood v, Griffith, 1 Swanst. 55. " (f) See Price v. Williams, 1 Ves. 365; Morgan v. Mather, 2 Ves. 15; Dick v. Milli- gan, 2 Ves.23; Goodman v. Sayers, 23. & W. 249, 259. (9) Story, s. 1456; Knoxv. Symmonds, 1 Ves. 369. See Rogers v. Dallimore, 6 Taunt. 111, See also Bac. Abr. Arbitrament and Award, ;K.; Com. Dig, Chancery 2K,1t06; Att. ae) v, Jackson, 5 Ha. 366. . 498 EQUITY JURISPRUDENCE. 1207. The mistake in matter of law, to render the award voidable in equity, must appear by the question being stated on the face of the award, as a justification of the conclusion to which the arbitrators came; or else it must be shown that the arbitrators intending to follow the law, have misapprehended it, and were thus brought to a different result from what they would otherwise have reached. And in regard to mistake in matter of fact, which shall be sufficient to invalidate an award, it must be something more than the misjudgment of the arbi- trator, in weighing evidence, or the construction of written admissions. The mistake must be one which shows that the arbitrator was misled, and thus failed to comprehend the true facts of the case; as by a mistake in computation, or in a date, material to the rights of the parties, or by the use of false measures, or false weights, or in some similar mode. A mere error in judgment is no mistake which a court of equity can correct, since the judgment of the chancellor is as fallible as that of the arbitrator(a). 1208. An arbitrator after making the award is functus officio, and cannot rectify even a clerical error(b). But equity will correct a mistake in an award where all the arbitrators agree in what it was, and where there was no fault in either of the parties in producing it. And the testimony of the arbitrator will be received in explanation of his award, and if it appears that he acted under a mistake, either of law, or fact in making the award, and but for such mistake would have made a dif- ferent one, it will be set aside, or referred back to the arbi- trator(c). 1209. Courts of equity will not enforce the specific perform- ance of an agreement to refer any matter in controversy between adverse parties, deeming it against public policy to exclude from the appropriate judicial tribunals any persons who, in the ordinary course of things have a right to sue there (a) Story, s. 1456a, 'b) Morduev. Palmer, L. R. 6 Chan. 22. (c) Re Dare Valley Rail Co. L. R. 6 Eq. 429. See Duke of Buccleuch #, Metropoli- tan Board of Works, L. R. 5H. L. 418. AWARDS. 499 (a). Neither will they, for the same reason, compel arbitra- tors to make an award; nor, when they have made an award, will they compel them to disclose the grounds of their judg- -ment(d). 1210. Under a contract to pay such damages, in a certain contingency, as a third person shall award, there is, in the absence of fraud, no cause of action, either at law or in equity, unless the award is made. Thus, where a contract for the performance of works contained a provision, that if the con- tractor should not, in the opinion of the employer’s engineer, exercise such due diligence as would enable the works to be completed, according to the contract within the time limited, the employers might determine the contract, and the con- tractor should be paid such sum as the engineer should deter- mine to have been reasonably earned for work actually done ; and the contract being determined under the provision, the contractor filed a bill against the employers and their engi- neer, complaining of undue delay in awarding the amount earned by the contractor, and seeking payment of what was due upon the contract, but did not establish fraud or collusion against the engineer ; it was held the bill could not be main- tained(c). 1211. And where in such a case the award of the engineer has been made, and the contractor claims a larger sum in addition, it is incumbent, in order to maintain a biil in equity for that purpose, that he should establish fraud and collusion between the employers and their engineer, or else that essen- tial and material mistakes should have intervened. And if such collusion were only for the purpose of obtaining tempo- (a) Kill v. Hollister, 1 Wils. 129; Mitchell v. Harris, 4 Bro. C. C. 312, 315; 2 Ves. 131; Street v. Rigby, 6 Ves. 815, 818 ; Crawshay v. Collins, 1 Swanst. 40; Agar v. Macklew, 28. & S. 418; Gourlay 7. Somerset, 19 Ves. 431. And see Smith v, Lloyd, 26 Beav. 507 ; Durham v. Bradford, L. R. 5 Chan. 519; Richardson v». Smith, L. R. 5 Chan. 648, (b) Anon., 3 Atk. 644. (c) Scott v. The Corporation of Liverpool, 3D. & J. 334 ; Sharpe v. San Paulo R. Co, L. R. 8 Chan. 597 ; Elliott v. Royal Exch. Ass. Co., Lu. R, 2 Ex. 287 ; Jones ¥ St. Johns College, L. R. 6 Q. B. 115. 500 EQUITY JURISPRUDENCE. ‘rary indulgence, with the design of ultimately paying the full sum due the contractor, a court of equity will nevertheless have jurisdiction of the matter(a). 1212. When an award has actually been made, and it is un- impeached and unimpeachable, it constitutes a bar to any suit for the same subject-matter, both at law and in equity. And courts of equity will, in proper cases, enforce a specific per- formance of an award, which is unexceptionable, and which has been acquiesced in by the parties, if it is for the perform- ance of any acts by the parties in specie, such as a conveyance of lands; and such a specific performance will be decreed, almost as if it were a matter of contract, instead of an award (0). 1218. As the specific performance of awards, as well as of contracts, rests in the sound discretion of the courts, if, upon the face of the award or otherwise, it appears that there are just objections to enforcing it, courts of equity will not inter- fere(c). On the other hand, where an award has been long acquiesced in or acted upon by both parties, even although objections might have been originally urged against it, an application to set it aside will not be entertained(d). 1214. Although the general principle is that an award may be good in part, and bad in part; still where arbitrators found a sum of money due toa creditor, and directed the debtor to pay, and the creditor to receive such amount in a certain specified manner, the creditor was not allowed to adopt the award in so far as it found the sum due, and reject that portion of it directing the mode of payment(e). (a) Story, s. 1457 b. See Kimberley v. Dick, L. R. 13 Eq. 1. (b) Hall ». Hardy, 3 P. W. 187 ; Thomson v. Noel, 1 Atk. 62; Norton v. Mascall, 2 Vern. 24 ; Wood v. Griffith, 1 Swanst. 54; Bell v. Miller, 9 Gr. 385, Com. Dig. Chan- cery, 2K. Seealso Bishop v. Webster, 2 Vern. 444, (c) Auriol». Smith, 1 T.& R. 187, 189, 190 ; Wood ». Griffith, 1 Swanst. 54 ; Emery v. Wase, 5 Ves. 846; Com. Dig. Chancery 2 K. 2. So in case of unreasonableness of submission and wantof finality and excess of authority in the award, Nickels». Hancock, 7 D. M. & G. 300. (d) Jones v. Bennett, 1 Bro. P. C. 528. See Bell v. Miller, 9 Gr. 385. (e) Dalton v. McNider, 5 Gr. 501. ‘WRIT OF ARREST. 501 CHAPTER XLI. WRIT OF ARREST. 1215. THE writ of Ne exeat regno, or, as it 18 how termed ‘in this Province, 2 WRIT OF ARREST, was a prerogative writ, issued to prevent a person from leaving the realm(a). It is said that it is a process unknown to the ancient common law, which, in the freedom of its spirit, allowed every man to de- part the realm at his pleasure(b). Its origin is certainly ob- scure. Butitmay be traced up to a very early period, although some have thought that its date is later than the reign of King John, since, by the great charter granted by him, the unlimited ‘freedom to go from and return to the kingdom at their plea- sure, was granted to all subjects. The period between the reign of King John and that of Edward I. has been accord- ingly assigned by some writers as the probable; time of its introduction, 1216. The writ was originally applied only to great political objects and purposes of state, for the safety or benefit of the realm(c). The time when it was first applied to mere civil pur- poses, in aid of the administration of ‘justice, is not exactly known, and seems involved in the like obscurity as its primi- tive existence. It seems, however, to have been so applied as early as the reign of Queen Elizabeth(d). 1217. The ground, then, upon which it is applied to civil cases being, as is here stated, custom or usage, it has been in practice uniformly confined to cases within the usage. But it is applied to cases of private right with great caution and jealousy(e). (2) Beames on Ne Exeat, 1; 1 Black. Comm. 137, 266. (6) Beames on Ne Exeat, 1. (c) Ex parte Brunker, 3 P. W.312; Anon., 1 Atk. 521; Flack v. Holm,1J. & W. 405, 413, 414. (d) Beames, Ord. of Chanc. 40; Beames on Ne Exeat, 16. (2) Tomlinson v. Harrison, 8 Ves. 32; Whitehouse v. Partridge, 3 Swanst. 379. 502 EQUITY JURISPRUDENCE. 1218. In general, it may be stated, that the writ of arrest will not be granted, unless in cases of equitable debts and claims; for, in regard to civil rights, it is treated as in the nature of equitable bail(a). If, therefore, the debt be such as that it is demandable in a suit at law, the writ will be re- fused ; for, in such a case, the remedy at law is open to the party(b). If bail may be required, it can be insisted on in the action at law; if not required at law, that furnishes no ground for the interference of a court of equity, to do what in effect, as to legal demands, the law inhibits(c). 1219. Although as has been said, that in general, the writ of arrest lies only upon equitable debts and claims, there are two recognized exceptions, and two only. The one is a case of alimony decreed to a wife, which will be enforced against her husband by a writ of arrest if he is about to quit the realm(d) ; the other is the case of an account, on which a balance is ad- mitted by the defendant, but a larger claim is insisted on by the creditor/e). 1220. In regard to alimony, it has been said, that it arose from compassion, and because the ecclesiastical courts could not take bail(f). Whether this be the real origin of the jurisdic- tion in equity, may admit of some doubt. The truer ground, perhaps, for equitable interference would seem to be, that, (a) Beames on Ne Exeat, 30; Ea parte,Brunker, 3 P. W. 312; Atkinson v Leonard. 3 Bro. C. C. 218 ; Jackson v. Petrie, 10 Ves. 163, 165; Whitehouse v. Partridge, 3 Swanst. 377; Dawson v. Dawson, 7 Ves. 173; Haffey v. Haffey, 14 Ves. 261; Stewart v. Graham, 19 Ves. 313, 314; Hyde v. Whitfield, 19 Ves. 344; Flack v. Holm, 1J. & W. 405, 413, 414; Jenkins v, Parkinson, 2 M. & K. 5. In Wyatt’s Practical Register, 289, itis said: ‘‘It is now mostly used, where a suit is commenced in this court against a man, and he, designing to beat the other of his just demand, or to avoid the justice and equity of this court, is about to go beyond sea, or, however, that the duty will be endangered, if he goes.” The usual affidavit, on which the writ is granted, states both of these facts.’ (6) Dawson v. Dawson, 7 Ves. 173; Russell v. Ashby, 5 Ves. 96 ; Blaydes v. Calvert, 23. & W. 211, 213. (c) Crosly v. Marriot, 2 Dick. 609 ; Gardner v. ——, 15 Ves. 444. (d) Con. Stat. U. C. c. 24,8.9; Read v Read, 1 Ch. Cas, 115; Shaftoe v. Shaftoe, 7 Ves. 71; Dawson v. Dawson, 7 Ves. 173; Anon. 2 Atk. 210. (e) Beames on Ne Exeat, p. 30. (f) Beames on Ne Exeat, p.30; Anon., 2 Atk. 210; Vandergucht v. De Blaquiere, 8 Sim. 315. ‘ : Bon dd WRIT OF ARREST. 508 although alimony is a fixed sum and not strictly an equitable debt, yet the ecclesiastical courts were unable to furnish a com- plete remedy, to enforce the due payment thereof; and there- fore courts of equity ought to interfere, to prevent the decree from being defeated by fraud(a). 1221. In regard to a bill for an account, where there is an admitted balancé due by the defendant to the plaintiff, but a larger sum is claimed by the latter, there is not any real devia- tion from the appropriate jurisdiction of courts of equity ; for matters of account are properly cognizable therein(b). The writ may, therefore, well be supported as a process in aid of the concurrent jurisdiction of courts of equity, and accordingly it is now put upon this intelligible and satisfactory ground(c). 1222. As to the nature of the equitable demand, for which a writ will be issued, it must be certain in its nature, and ac- tually payable, and not contingent(d). It should also be for some debt or pecuniary demand. It will not lie, therefore, in a case where the demand is of a general unliquidated nature, or is in the nature of damages(e). The equitable debt need not, however, be directly created between the parties. It will be sufficient, if it be fixed and certain. Thus the cestui que trust or assignee of a bond, may have a writ of arrest against the obligor(/). (a) In Read v. Read, 1 Ch. Cas. 115; Ex parte Whitmore, 1 Dick. 143; Shaftoe v. Shaftoe, 7 Ves. 171; and Dawson v. Dawson, 7 Ves. 173, no such compassion is suggested. (0) Jones v. Sampson, 8 Ves. 593; Russell v. Ashby, 5 Ves. 96; Amsinck ». Barklay, 8 Ves. 597 ; Dick v. Swinton, 1 V. & B. 371; Stewart v. Graham, 19 Ves. 313 ; Flack v. Holm, 1 J. & W. 405, 413. (c) Jones v. Alephsin, 16 Ves. 471; Howden v. Rodgers, 1 V. & B. 132; Atkinson ». Leonard, 3 Bro. C. C. 218; Blaydes v. Calvert, 2 J. & W. 213. (@) Anon., 1 Atk. 521; Rico vr. Gaultier, 3 Atk. 500 ; Shearman v. Shearman, 3 Bro. C. C. 370; Whitehouse v. Partridge, 3 Swanst. 377, 378; Morris v. McNeil, 2 Russ. 604. (e) See Etches v. Lance, 7 Ves. 417; Cock v. Ravie, 6 Ves. 283. See also Bridge v, Hindall, Rep. t. Finch, 257; Beames on Ne Exeat, 36, 37, 53; Whitehouse v. Partridge, 3 Swanst. 377, 378; Blaydes v. Calvert, 2 J. & W. 212; Graves v. Griffith, 1 J. & W. 646, Flack v. Holm, 1 J. & W. 405, 407. (f) Grant v- Grant, 3 Russ. 598 ; Leake v. Leake, 1 J. & W. 605. 504 EQUITY JURISPRUDENCE. 1228, The writ will not be granted on a bill for an account in favour of a plaintiff, who is a foreigner out of the realm, because he cannot be compelled to appear and account. On the other hand, it may be granted against a foreigner tran- siently within the country, although the subject-matter origi- nated abroad, at least to the extent of requiring security from him to perform the decree made on the bill filed(a). CHAPTER XLII. BILLS OF DISCOVERY. 1224. Every bill in equity may properly be deemed a bill of discovery, since it seeks a disclosure from the defendant, on his oath, of the truth of the circumstances constituting the plaintiff’s case as propounded in his bill. But that which is emphatically called in equity proceedings a bill of discovery, is a bill which asks no relief, but which simply seeks the dis- covery of facts, resting in the knowledge of the defendant, or the discovery of deeds, or writings, or other things, in the pos- session or power of the defendant, in order to maintain the right or title of the party asking it, in some suit or proceeding in another court(5). In this Province no bill of discovery will be entertained except in aid of the prosecution or defence of an action at law. 1225. The sole object of such a bill being a particular dis- covery, when that discovery is obtained by the answer, there can be no further proceedings thereon(c). To maintain a bill of discovery it is not necessary that the party should other- wise be without any proof of his case; for he may maintain ‘(a) Hyde v. Whitefield, 19 Ves. 343,344. See Done’s case, 1 P. W. 263; Flack v. Holm, 1 J. & W. 405, 411, 414, 415; Howden v. Rodgers, 1V. & B. 129. (b) Cooper, Eq. Pl. ch. 1, s. 4, p. 58,60; Mitf. Eq. Pl. 8, 53, 148, 306, 307; 1 Mad. Ch. Pr. 160. ‘ (c) Lady Shaftesbury ». Arrowsmith, 4 Ves. 71. BILLS OF DISCOVERY, 505 such a bill, either because he has no proof, or because he wants - it in aid of other proof(a). 1226. The jurisdiction of courts of equity to compel dis- covery arose principally from the inability of courts of com- mon law to compel a complete discovery of the material facts in controversy by the oaths of the parties in the suit, and from their want of power to compel the production of deeds, books, writings, and other things, which are in the custody or power of one of the parties, and are material to the right, title, or defence of the other(b). 1227. The principal grounds upon which a bill of dis- covery may be resisted, have been enumerated as follows: (1.) That the subject is not cognizable in any municipal court of justice. (2.) That the court will not lend its aid to obtain a discovery for the particular court for which it is wanted. (3.) That the plaintiff is not entitled to the dis- covery by reason of some personal disability. (4.) That the plaintiff has no title to the character in which he sues. (5.) That the value of the suit is beneath the dignity of the court. (6.) That the plaintiff has no interest in the subject-matter, or title to the discovery required, or that an action will not lie for which it is wanted. (7.) That the defendant is not answer- able to the plaintiff; but that some other person has a right to call forthe discovery. (8.) That the policy of the law exempts the defendant from the discovery. (9.) That the defendant is not bound to discover his own title. (10.) That the discovery is not material in the suit. (11.) That the discovery called for would subject the defendant to a penalty, or forfeiture, or prosecution(e). 1228. It must clearly appear upon the face of the bill, that the plaintiff has a title to the discovery which he seeks(d). A (a) Finch v. Finch, 2 Ves. Sen. 492; Montague v. Dudman, 2 Ves. Sen. 398. (8) Story, ss. 1484, 1485 ; 2 Black. Comm. 382; Com. Dig. Chancery 3 B. (c) Story, s. 1489. (d@) Brown v. Dudbridge, 2 Bro. C. C. 321, 322; Brownsword v. Edwards, 2 Ves. 943, 247. See Kettlewell v. Barstow, L. R. 6 Chan. 686; Commissioners, &c., of Lon- don ». Glasse, L. R. 15 Eq. 302 ; Girdlestone v. North British, &c., Co. L. R. 11 Eq. 197, 506 ; EQUITY JURISPRUDENCE. mere stranger cannot maintain a bill for the discovery of the title of another person. Hence, an heir-at-law cannot during the life of his ancestor, maintain a bill for a discovery of facts or deeds material to the ancestor’s estate ; for he has no pre- sent title whatsoever, but only the possibility of a future title (a). 1229. Even an heir-at law has not a right to the inspection of deeds in the possession of a devisee, unless he is an heir-in- tail; in which latter case he is entitled to see the deeds creating the estate tail, but no further, and the reason of this is that an heir-at-law has no interest in the title-deeds of an estate, unless it has descended to him; whilst on the other hand, a devisee, claiming an estate under a will, cannot, with- out a discovery of the title-deeds, maintain any suit at law (0). 1230. In the next place, the party must not only show that he has an interest in the subject-matter of the bill, but he must also state a case, which will, if he is the plaintiff at law, con- stitute a good ground of action, or if he is the defendant at law, show a good ground of defence, in answer to the action. If it is clear that the action or the defence is unmaintainable at law, courts of equity will not entertain a bill for any dis- covery in support of it; since the discovery could not be ma- terial, but must be useless(c). If the point be fairly open to doubt or controversy, courts of equity will grant the discovery, and leave it to courts of law to adjudicate upon the legal rights of the party seeking the discovery/(d). 1231. Courts of equity will not entertain a bill for a dis- covery, to aid the promotion or defence of any suit which is not purely of a civil nature. Thus they will not compel a discovery in aid of a criminal prosecution, for it is against the (a) Buden v. Dore, 2 Ves. Sen. 445. But see Metcalfe v. Hervey, 1 Ves. Sen. 248 ; Ivy v. Kekewick, 2 Ves. 679 ; Glegg v. Legh, 4 Mad. 193, 208. (b) Story, ss. 1491, 1492, 1493. (c) Wallis v. Duke of Portland, 3 Ves. 494; Lord Kensington v. Mansell, 13 Ves. 240; Macaulay v. Shackell, 1 Bligh, wn. g. 120. (d) Thomas v. Tyler, 3 Y. & C. Ex. 255, 261, 262. BILLS OF DISCOVERY. 507 genius of the common law to compel a party to accuse him- self; and it is against the general principles of equity to aid in the enforcement of penalties or forfeitures(a). 1232. Courts of equity will not entertain a bill for a dis- covery to assist a suit in another court, if the latter is of itself competent to exercise the same jurisdiction. But although the courts of common law can now compel production of documents and grant discovery, yet a plaintiff or defendant at law is still entitled to come to equity for discovery, and this is put upon the ground that equity having once acquired juris- diction over the subject matter cannot lose that jurisdiction, by the mere fact of the common law court also being invested with the same powers(b). 1283. Courts of equity will not entertain such bills in aid of a controversy pending before arbitrators ; for they are not the regular tribunals authorized to administer justice, and, being judges of the parties’ own choice, they must submit to the inconveniences incidental thereto(c). But the court will grant a discovery in aid.of a compulsory reference to arbitra- tion ordered in an action(d). 1234. No discovery will be compelled where it is against the policy of the law from the particular relation of the par- ties(é). Thus no discovery will lie against a married woman, to compel her to disclose facts which may charge her hus- band. Upon the same ground, a person standing in the rela- tion of professional confidence to another, will not be com- pelled to disclose the secrets of his client(/). (a) Story, s. 1494. And see Montague v. Dudman, 2 Ves. Sen. 398 ; Thorpe v. Mac- aulay, 5 Mad. 229, 230; Shackell v. Macaulay, 2 S. & S. 79; 1 Bligh, nw. Rr. 96; Cla- ridge v. Hoare, 14 Ves. 64, 65; Wallis v. Duke of Portland, 3 Ves. 494; Franco 7. Bolton, 3 Ves. 368; Earl of Suffolk v. Green, 1 Atk. 450; King». Burr, 3 Meriv. 693 ; Finch v. Finch, 2 Ves. Sen. 492. (6) Lovell v. Galloway, 17 Beav.1; British Empire Shipping Co. v. Somes, 3 K. & J. 433. (c) Street v. Rigby, 6 Ves. 821. (d) British Empire Shipping Co. v. Somes, 3 K. & J. 433, (e) See Wadeer v. East India Company, 7 Jur. nN. 8. 350. (f) Story, s. 1496. See Minet v. Morgan, L. R. 8 Chan. 361 ; Wilson v. Northamp- ton, &c., Rail Co., L. R. 14 Eq. 477. 508 EQUITY JURISPRUDENCE. 1235. In general, arbitrators are not compellable by a bill of discovery to disclose the grounds on which they made their award, because arbitrators are not obliged by law to give any reason for their award. But if they are charged with corrup- tion, fraud, or partiality, they must answer to that(a). 1236. It is ordinarily a good objection to a bill of discovery, that it seeks the discovery from a defendant who is a mere witness, and has no interest in the suit; for, as he may be examined in the suit as a witness, there is no ground to make him a party to a billof discovery, since his answer would not be evidence against any other person in the suit(d). 1237. A defendant may object to a bill of discovery, that he is a bona fide purchaser for a valuable consideration, without notice of the plaintiff’s claim. To entitle himself to this pro- tection, however, the purchaser must not only be bona fide, and without notice, and for a valuable consideration, but he must have paid the purchase-money(c). 1238. And not only is a bona fide purchaser for a valuable consideration without notice, protected in equity against a plaintiff seeking to overturn that title ; but a purchaser with notice, under such a bona fide purchaser without notice, is en- titled to the like protection. For, otherwise, it would happen, that the title of such a bona fide purchaser would become un- marketable in his hands, and consequently he might be sub- jected to great loss, if not utter ruin(d). CHAPTER XLII. BILLS TO PERPETUATE TESTIMONY. 1239. THE object of bills to perpetuate testimony is to pre- (a) Steward v, East India Company, 2 Vern. 380; Anon., 3 Atk. 644; Tittenson v. Peat, 3 Atk. 529 ; Ives v. Metcalfe, 1 Atk. 63. (b) Story, s. 1499. Fenton v. Hughes, 7 Ves. 287; Neuman v. Godfrey, 2 Bro, C. C. 332; Cookson v. Ellison, 2 Bro. C. C. 252. 4 (c) Stanhope v. Earl Verney, 3 Eden, 81; Willoughby v, Willoughby, 1T. R. 763, 767. (d) Story, s. 1503. BILL TO PERPETUATE TESTIMONY. 509 serve and perpetuate evidence when it is in danger of being lost, before the matter to which it jrelates can be made the subject of judicial investigation(a). Bills of this sort are ob- viously indispensable for the purposes of public justice, as it may be utterly impossible for a party to bring his rights pre- sently to a judicial decision ; and unless, in the mean time, he may perpetuate the proofs of those rights, they may be lost without any default on his part(d). 1240. The jurisdiction, which courts of equity exercise to . perpetuate testimony is open to one great objection. The depositions are not published until after the death of the wit- nesses. The testimony, therefore, has this infirmity, that it is not given under the sanction of those penalties which the law imposes upon the crime of perjury. It is for this reason that courts of equity do not generally entertain such bills, unless where it is absolutely necessary to prevent a failure of justice (¢). 1241. If, therefore, it be possible, that the matter in contro- versy can be made the subject of immediate judicial investiga- tion by the party who seeks to perpetuate testimony, courts of equity will not entertain a bill for the purpose. For the party, under such circumstances, has it fully in his power to terminate the controversy by commencing the proper action ; ‘and, therefore, there is no reasonable ground for giving him the advantage of deferring his proceedings to a future time, and to substitute thereby written depositions for viva voce evi- dence(d). 1242. On the other hand, if the party who files the bill can by no means bring the matter in controversy into immediate judicial investigation, which may happen when his title is in remainder, or when he himself is in actual possession of the property or right which he seeks to secure, equity will enter- (a) Com. Dig. Chancery. (b) Story, s. 1505; Mason ». Goodburne, Rep. t. Finch, 391. (c) Angell v. Angell, 1S. & 8. 83; Cann v. Cann, 1 P. W. 567. (d) Story, s. 1508 ; Ellice v. Roupell, 32 Beav. 299. 510 EQUITY JURISPRUDENCE. tain a suit to secure such proofs. For, otherwise, the only evidence which could support his title, possession, or rights might be lost by the death of his witnesses ; and the adverse party might purposely delay any suit to vindicate his claims with a view to that very event(a). CHAPTER XLIV. ESTOPPELS IN EQUITY. 1248. THE subject of equitable estoppels, or estoppels in fact, has become one of great practical importance, and forms a very essential element in that fair dealing, and rebuke of all frau- dulent misrepresentation, which it is the boast of courts of equity constantly to promote. It applies to all cases where rights, once valid, are lost by delay, and the implied acquies- cence, resulting from such delay(b). Thus where a party has acquiesced in the violation of a covenant to a certain extent, this affords sufficient objection to granting of an interlocutory injunction against a greater violation of it(c). 1244. Where a married woman, entitled to the income of a legacy, for her separate use, continued for fifteen years, with full notice of the circumstances affecting her rights, to receive the income, on the footing that the legacy was liable to con- tribute in favour of the residuary legatees, to a loss occurring on the reinvestment of part of the estate, and it was after- wards decided that the legacy was not liable so to contribute, but must be paid in full; it was held that she could not recover from the residuary legatees the sums which she had before acquiesced in allowing to be paid to them, and which they had expended as their own in faith of such acquiescence. (a) Duke of Dorset v. Girdler, Prec. ch. 531; Dew v. Clarke, 1S. & 8.114. A bill to perpetuate testimony cannot be brought by a defendant in a pending suit, Earl Spen- cer v. Peck, L. R., 3 Eq.; 415. (b) Story, s. 1534. . (c) Child ». Douglas, 5 D. M. & G. 739. See Mitchell v. Steward, L. R. 1 Eq. 541; Western v, MacDermott, L. R. 1 Eq. 499; 2 Chan. 72. ESTOPPELS IN EQUITY. 511 Such acquiescence constituted an equitable estoppel upon any such claim, since it had been acted upon in good faith by the other party(qa). 1245. But the equitable rule as to the effect of a person’s lying by, and allowing another to expend money on his pro- perty, does not apply where the money is expended with knowledge of the real state of the title(b). But where a land- lord stands by and sees a tenant lay out money on the faith of a promised lease, this, though not strictly part-performance, may raise an equity analogous to that which is raised when one stands by and sees another expend money on his land, believing he has a good title(c). 1246. This principle affects corporations and other joint- stock companies the same as it does individuals(d). But where a partner in a joint-stock company, after his shares were declared forfeit, lay by for seven years, while the affairs of the concern were greatly depressed, until they began to be more prosperous, and then filed his bill to be let in to a share of the profits, it was held that he must be considered as hav- ing acquiesced in the action of the directors, in declaring his shares forfeited, and that he was not entitled to the relief sought(e). But the principle of the case was held not to apply, where the surviving partner had refused to give the representatives of a deceased partner all the information as to the state of the concern, which was necessary to enable them to exercise a sound discretion, as to whether they should claim an interest, and take a share in the risks of the concern (7). (a) Stafford v. Stafford, 1 D. & J. 193. See Bate v. Hooper, 5 D. M. & G. 338. (b) Rennie vy, Young, 2 D. & J. 136. (c) Nunn v. Fabian, 11 Jur. n. s. 868; Crook v. Corporation of Seaford, L. R. 10 Eq. 678; 6 Chan. 551. And see Davies v. Sear, L. R. 7 Eq. 427; Bankart v. Tennant, L. R. 10 Eq. 141. ; (d) Re Strand Music Hall Co. 14 W. R. 6; Hill v. So. Staffordshire Railway, 11 Jur. N, 8. 192; Wilson v. West Hartlepool Railw.’ & Harb, Co., 11 Jur. N. 8S, 124; Steevens Hospital v. Dyas, 15 Ir. Ch. 405. (e) Prendergast v. Turton, 1 Y. & C. 98. (f) Clements v. Hall, 2 D. & J. 173. 512 EQUITY JURISPRUDENCE, 1247. Where a party, by misrepresentation, draws another into a contract, he may be compelled to make good the repre- sentation, if that be possible ; but, if not, the other party may avoid the contract. And the same principle applies, although the party making the representation believed it to he true, if, in the due discharge of his duty, he ought to have known the fact(a). Third parties who, by false representations, induce others to enter into contracts, are estopped from afterwards falsifying their statements, and if necessary may be compelled to make them good(b). But where a contract is entered into, upon the false statement of one not a party, it is no ground of avoiding the contract. Misrepresentation may be either by the suppression of truth or the suggestion of falsehood ; but to be the ground for avoiding the contract, it must be enak that it is reasonable to infer, that in its absence the party de- ceived would not have entered into the contract(e). 1248. This principle has often been applied to the proceed- ings of joint-stock companies not strictly in accordance with the requirements of their charter. As where power was given, by the deed of settlement, at a meeting of two-thirds in number and value of the shareholders, to borrow money on debentures ; and the directors borrowed money on deben- tures, upon the resolution of a meeting, at which the requisite number did not attend, and the debentures were issued to persons present at the meeting, and the money applied in pay- ment of the debts of the company, and interest paid on the loans, for two years; it was held that the original issue of de- bentures was invalid, but that it was cured by the subsequent acquiscence of the company(d). 1249. Lapse of time and acquiescence on the part of the party whose interests are alleged to have been injuriously . (a) Pulsford v. Richards, 17 Beav. 87. (b) Bridger’s case L. R. 9 Eq. 74; Mitchell’s case, L. R. 9 Eq. 363. And see Ebbett’s case, L. R. 5 Chan. 302. (c) Story, u. 1538. (a) Re The Magdalena Steam Nav. Co. 6 Jur. y. 8. 975. See Laird ». Birkenhead Rail. Co., 6 Jur. n. 8. 140; Bankart vz. Houghton, 5 Jur. n. s. 282, ESTOPPELS IN EQUITY. 513 affected by irregular proceedings will be a complete bar, unless the transaction is tainted with fraud, meaning thereby, an act involving grave moral guilt(a). Upon this ground an agree- ment between the shareholders and directors of a joint-stock company was upheld, although admitted to have been origi- nally ultra vires, and that the books of the company accessible to the shareholders did not show the real nature of the tran- saction. And in cases of actual fraud, the courts of equity feel great reluctance to interfere where the party complaining does not apply for redress at the earliest convenient moment after the fraudulent character of the transaction comes to his knowledge. The party upon whose rights or interests a fraud is attempted should not be allowed, after the fact comes to his knowledge, to speculate upon the possible advantages to him- self of confirming or repudiating the transaction. He must repudiate it at once, and surrender his securities(b). 1250. An essential difference exists between executory and executed interests, in regard to the effect of laches in asserting the claim. In regard to the former, and where it is requisite to resort to a court of equity to be put in possession of them, it is an invariable principle of the court, that the party must come promptly—that there must be no unreasonable delay ; and if there is anything on his part which amounts to laches, courts of equity have always said, ‘“‘ We will refuse you re- lief.” With regard to interests which are executed, the con- sideration is entirely different. There, mere laches will not disentitle the party to relief by a court of equity, but a party may, by ‘standing by, as it has been metaphorically called, waive or abandon any right which he may possess. Where there is a vested right or interest in any party, the principle of law, as now firmly established, is, that he cannot waive or (a) Smallcomb’s case, L. R. 3 Eq. 769; L. R.3 H. L. 249. See also Brother- hood’s case, 31 Beav. 365. (b) Story, s. 1249; Perrett’s case, L. R. 15 Eq. 250; Oakes v, Turquand, L. -R. 24H. L. 325; Kent v. Freehold, &c., Co., L. R. 3 Chan, 493; Peek v. Gurney, L. R. 13 Eq. 79, 33 514 EQUITY JURISPRUDENCE. abandon that right, except by acts which are equivalent to an agreement, or to a license(a). 1251. But where, upon the occasion of a transaction, money is, with the privity and in the presence of any person, paid upon the faith of a representation which that person under- stands, and knows is about to be thus acted upon, and that his not disputing will be regarded as confirmation of it, and he remains silent, he is bound to fulfil the purpose for which it was made(b). 1252. This doctrine of estoppels in pais, or equitable estop- pels, is based upon a fraudulent purpose, and a fraudulent result. If therefore, the element of fraud is wanting, there is no estoppel. Asif both parties were equally conusant of the facts, and the declaration, or silence, of one party pro- duced no change in the conduct of the other, he acting solely upon his own judgment. There must be deception, and change of conduct in consequence, in order to estop the party from showing the truth(c). 1253. An estoppel may occur in regard to the dedication of land to public use, from the circumstances under which it is done, and the acts which it induces in others. As where one sells house-lots adjoining a space held'out as an open street, or public square, and valuable erections and improvements are made in faith of such professions, there arises, forthwith, an irrevocable dedication of such property to public use, in the form indicated (d). 1254. In a late case, where a married woman executed a deed, inter partes, whereby she attempted to make her hus- (a) Clarke v. Hart, 5 Jur. n. s. 447. And see Pickard v. Sears, 6 Ad. & El. 469; Freeman v. Cooke, 2 Ex. 654. (b) Davies v. Davies, 6 Jur. x. 8. 1820. And see Phillips v. Homfray, L. R. 6 Chan. 770. (c) Story, s. 1543. Soa recital in a deed contrary to the fact, but made by mistake, will not create an estoppel, Brooke v. Haymes, L. R. 6 Eq. 25; Empson’s case, L. R. 9 Eq. 597. (@ Guelph v. The Canada Co., 4 Gr. 632; Saugeen v. Church Society, 6 Gr. 538; Rossin ». Walker, 6 Gr. 619. ESTOPPELS IN EQUITY. 515 band’s debt a charge upon her separate estate, the court held the deed itself inoperative ; but inasmuch as the woman, after she became discovert, did not repudiate the deed, but for some years continued to recognize it as a valuable security, it was considered that she thereby confirmed it, so that her adoption and confirmation should have the same effect as if the deed had been executed by her de novo(a). 1255. This question of estoppel in fact, or acquiescence in- an adverse claim of right, was discussed somewhat in detail in the House of Lords(b). Lord Chancellor Campbell said : “It is a universal law that if a man, either by words or by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they other- wise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference’ to be drawn from his conduct.” And again: “If a party has an interest to prevent an act being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had it been done oe his pre- vious license.” 1256. Where the snbiael of the sale of shares in a joint-stock company, through the instrumentality of a prospectus issued by the directors of the company, came in question; it was held that where the representations contained in the prospec- tus were believed by the company to be correct, at the time the prospectus issued, and a person agreed to accept shares upon the faith of them, and without making inquiries, the company cannot enforce the agreement, after the representa- (a) Skottowe v, Williams, 7 Jur. n. s. 118. And see Re Fiddey, L. Re 7 Chan. 773 ; Jones v, Higgins, L. R. 2 Eq. 538. (8) Cairncross v. Lorimer, 7 Jur. N. 8. 149. 516 EQUITY JURISPRUDENCE. tions have been discovered to be false. The company were bound to know they were true before making them; and, having made them, are now bound to make them good to those who have acted upon the faith of them, or else relinquish all advantages gained by them(a). 1257. Itis sometimes attempted to be maintained that courts of equity require a more perfect good faith, and visit a severer condemnation upon parties, for any departure from its strict observance, than courts of law. It may be true that they are sometimes enabled, hy means of their different modes of pro- cedure, to effect more perfect justice between parties, and thus seemingly to redress some departures from honesty and fair dealing, in a more exemplary manner, than can be done in courts of law. But it is well settled, that there is no equi- table construction of a contract, or a duty, different from its legal one. The same is true in the construction of statutes (6). (a) New Brunswick & Canada Rail. & Land Co. v. Muggeridge, 7 Jur. n. 8. 132. (b) Story, x. 1548; Scott v. Corporation of Liverpool, 5 Jur. n. gs. 105. INDEX. THE REFERENCES ARE TO THE SECTIONS. ABATEMENT, ACCIDENT, of the shares of creditors in assets . of legacies i : : ‘1 5 3 - : not exclusively cognizable in equity when remedied at law jurisdiction in cases of what is meant by 3 an old head of equity . . necessary circumstances to sustain the jucisdiction relief in cases of lost bonds and instruments . the grounds thereof on condition of the party’s giving iaaomintty where relief is sought, affidavit of the loss required otherwise where discovery only is sought relief in cases of lost notes, and the grounds thereof where the lost note is not negotiable in cases of destroyed negotiable instruments where evidence of title lost relief against penalties, and the grounds thereof 395 - 442 . 56 to 58 to 59 to 63, of executors and administrators in respect of assets in case of loss ‘ of an unpaid eeatee sealant eihiee ‘cones apportionment of premium on account of e stock is reduced by an Act of Parliament here there is a defective execution of a power by accident omission of endorsement by cases of, in which no relief will be Hehe where there is a positive contract where premises are destroyed by fire or lightaing where express covenant to pay rent . where parties stand equally innocent 74 to 80, where the accident arose from gross negligence or fault 3 where a party has not a clear vested right where both parties stand upon equal equities . in case of a bona fide purchaser without notice grounds of equitable jurisdiction in cases of 30 30 86 56 56 62 64 60 60 61 61 64 64 65 66 67 68 72 73 73 78 79 80 81 80 80 81 82 83 84 85 86 518 INDEX. ACCOUNT, jurisdiction of equity in matters of ‘ 7 ‘ ‘ 323 to 388 origin and nature of the jurisdiction ‘ . P " 323 to 326 inadequacy of remedy at law 5 : 2 3 3 : - 3823 when action of account lies at law - . 324 confined to bailiffs, receivers, and guardians in socage, a ide shiaate 324 difficulties in the action of, atcommonlaw . ; : fj 325 all parties may be brought before the court . : 5 : 450 foundation of the jurisdiction of equity over 3 z 327, 328 jurisdiction in cases of principal and agent . 3 é > «» 328 (See AGENcY AND PRINcIPAL AND AGENT.) jurisdiction over cases of mutual accounts . 2 ay ke . 3829 between trustees and cestui quetrust =. . : 332 between tenants in common, joint-tenants, part owners 3 of ships, and partners o. 4 2 ee Re - 6. 888 mutual accounts. é ji : 7 7 ; : . 334 setoff . : é : Z ‘ . 335 to 340 appropriation of aici . ‘ : 4 é . . 841 to 344 when debtor can appropriate | me reo : 7 . 342 when creditor can . “ . : - 342 when no appropriation by panties, ia appeopiiaten 2 $ 342 where change in partnership . é ‘ ‘ 343, 344 (See APPROPRIATION OF Davee: ) jurisdiction in cases of Apportionment . : ‘ ; . 345 to 360 (See APPORTIONMENT.) jurisdiction in cases of General Average 3 3 . 361 to 364 (See GENERAL AVERAGE.) jurisdiction in cases of Contribution ‘ . 345 to 360—365 to 373 (See ConTRIBUTION.) jurisdiction in cases of liens . ‘ ‘ . 377, 378—1032 to 1041 rents and profits : ‘ ; 379, 380 (See RENTS AND PRoFIts.) in cases of waste 2 4 oak ‘ 7 381, 382 account stated is a good bar . : a cae 383 where a court of equity will open a settled acount . . 383 what is a stated account : . os . 383, 386 when a settled account is conclusive ere ‘the parties ornot . 383 where liberty is given to surcharge and falsify . . . 384 meaning of ‘surcharge and falsify” . : Oo » . 385 where the clause ‘‘ errors excepted ” occurs . 2 . . 3886 it need not be signed by the wadeios ‘ ‘ . 336, its acceptance may be implied . Fi ‘i . 387 ACCOUNT STATED, when a bar in equity . : ‘ : - «388 ACTUAL FRAUD. (See Fraup, Actuat.) .- . + . « 133 to 183 ADEMPTION. (See SatTIsFaction.) ADMINISTRATION, jurisdiction in casesof . s 4 j , Z . 389 to 428 grounds of jurisdiction . ‘ s s Ss - 390 whether cognizable as a teue St) 8 GE se: 39) INDEX. 519 ADMINISTRATION—continued. relief may be sought by executors or administrators . . 3891 not for idemnity merely . g a - F : . - 892 more ordinarily relief is sought by creditors . se ew 898 may be by a single creditor, for his own debt only < : . 393 usually for general administration . 5 ‘ é de - 393 usual decree for administration . ‘4 3 ‘ ‘ ; . 394 where executor admits assets . . . ‘ ‘ . é - 395 assets, legal and equitable . F 5 a 2 ‘ 5 - 396 what are legal assets : ' 3 . 5 : i ‘ . 396 what are equitable assets. 2 : . 396 equity follows same rules as to legal sae as esniee of on recog- nizes liens, charges, &c., according to their priority. . 3897 follows different rules, as to equitable assets, from courts of law. ‘ . : : 3 4 ‘ i : . 398 equitable assets distributed among creditors equally and pari passu 399 alteration by Property and Trusts Act . é ‘ » + + 400 order in which assets applied . ‘ 4 - 401, 402 general charge on real estate does not Seamernte a3 cial estate + 403 case of devise of mortgaged estate since Property and Trusts Act 404, 405 ‘contrary or other intention” within meaning of the Act . . 406 when personal estate exonerated and when not. . : - 407 rights of creditors not affected _ - 5 ‘ , : - 408 marshalling assets . ’ : ‘ ‘a . : ; ‘ » 408 what is marshalling of assets . é » 408 assets marshalled only in favour of common re ‘of @ com- mon debtor . : i ; - 5 ‘ - 409 when heir at law may have assets iriabelllsa . 3 5 . 410 when devisee may have assets marshalled . . $ ‘ » 411 principle applicable between legatees . e e r 7 . 412 how assets are marshalled in favour of pecuniary legatees . . 413 when specific legatees and devisees may have assets marshalled . 414 when they cannot . a : é ‘ ; . 415 assets never marshalled in favour of chiastiies ‘ : ; . 416 where there is waste by the personal representative . f . 417 executor treated as debtor atlaw . ; ‘ ¥ " 4 » st assets treated as debtor in equity . ; a‘ F q . . 47 when executor may retain for his own debt . i : . . 418 sale by executor even with notice valid - 8 - . 419 distinction between sale or pledge of assets for a saat advance or foran antecedent debt. : é : i . 420 secret intention to misapply does not affect purchaser . fi . 420 general rule on this subject . . re: 7 | where assets are collected under foreign atnairdateation : 422 probate and administration granted as to assets within the juris- diction of the court . . : ‘ 5 : 4 . 422 where there are different administrations in different cutee . 423 different regulations in different countries , . i é . 424 by what law the assets are tobe governed . «© . «425 520 : INDEX. ADMINISTRATION—continued. final distribution of the residue, after discharge of the claims in the country of the ancillary administration ‘ ‘ - 426, 427 legatees may be compelled to refund when assets deficient . « 428 ADMINISTRATORS AND EXECUTORS. (See Exzcurors anp ADMINISTRATORS, ) ADVANCEMENT, purchase in name of ason . : “ : 1020, 1021, 1022 AGENCY, accounts arising from, jurisdiction over . : 328 when bill for account will lie between principal sa ‘iene 328, 329, 330. agents must keep accounts and preserve vouchers . ‘ . 330, 331 where an agent does not keep regular accounts . . f » 83l where an agent mixes his principal’s property with hisown . 331, 460 ALIMONY, when allowed by courts of equity . 2 ‘ is - 1191 to 1195 ANCIENT LIGHTS, injunction against obstructing 5 ‘ 4 ‘“ . 687 ANCILLARY, FOREIGN ADMINISTRATION, when assets collected under . . 7 . a ‘ . 422 (See Apimisiennn) ANNUITIES, during widowhood are valid A , i . é - 194, 202 ANTIQUES, specific delivery of . ‘ i ‘ ‘ i ‘ x» 5ba APPLICATION OF PURCHASE-MONEY, when purchaser bound to see to or not . ‘ - 1003 to 1011 APPOINTMENTS, defective execution of powers of, when paileved . 73, 74 when not i i. ‘ ‘i . 7 ‘ 5 ‘ . 14 (See Powers. ) illusory, relief in cases of fe ee, BO APPORTIONMENT, of a premium on geuuke of sontdenit ‘ zs ‘ . jurisdiction in casesof . Fi x é ‘ - . 345, 360 discovery required for . ‘ ‘ ‘ < ¥ i r . 345 sometimes founded on contract ‘i * . : 7 e . 3845 meaning of : : ‘ f . 346 contracts not generally sgroieouadl at common law . : . 3847 equity to considerable extent acts on common law rule 348 where a collector of rents died at the end of direequastare re a year. 3 - 5 ’ 347 where a mate engaged fo a@ voyage, and died during the voyage 347 of apprentice fees, when the master becomes bankrupt 4 73, 348 or misconducts himself . . ‘i . 348 where certain acts were left undone by ihe death of the master. ‘ é . ‘ . 3848 rule at common law against apportionment of on ‘ ‘ 349 exceptions and qualifications ‘ é ‘ ‘ 3 . 350 in cases of rent, or common, or other whiugpe ‘ ‘ . 349, 350 where one purchases a part of the land, out of which a rent- charge issues ‘ 7 . . 350 where part of the land comes ig eqseatton of ae toa oe . 3850 rent service apportionable . . ~ «+ 850 where a lessor grants part of a reversion 6 a siteungee . . 350 in case of eviction of part of theland . . _ . + 3850 where one parcener, or co-feoffee, is distrained for a en service 350 recent statutory provisions, as to . x si a % . . 861 INDEX. 521 APPORTIONMENT —continued. remedy in equity superior to that at law ‘ x ‘ . 352 in cases where no remedy exists at law . - 3 352 where a right of common is recovered of a fans of sign land : . ate fen eee Lat Ay . « « 852 where interest on a mortgage is apportioned between the heir and administrator . » « 852 where a daughter’s maintenance will a appartiaaed . 352 in cases where fines and other charges on real estate are paid off 353 where different parcels in the same mortgage are sold to different persons . = a é : ‘ . 3854 importance of the assistance of equity in these cases, . . . 9354 between tenant in tail and remainder-man , . 3 7 . 3855 where an incumbrance is paid off by tenant in tail in possession 355 by tenant in tail in remainder i 5 . . 356 by tenant for life . 4 é ‘i . ‘ , . 356 between tenant for life and reversioner or Scencianines a . 357 of surplus, where the estate is sold to discharge,encumbrances . 358 tule as to contribution between : < : : ‘ ‘ . 3858 of the interest on mortgages, &c. . ‘ 2 i : - . 859 of money on sale i : : ‘ ; . 360 APPRENTICE BONDS, when pene or abe a 5 : = ‘ 73: APPROPRIATION OF PAYMENTS, jurisdiction as to. : : ‘ ‘ ; ‘ . 841 to 344 arises in cases of running accounts 3 é z . S41, 342, 343 when debtor has a right to appropriate , : ‘ - « 3842 when creditor has aright to appropriate . . a - . 842 when no appropriation by parties, the law appropriates é . 342 application of doctrine when change of partnership. . 348, 344 ARBITRATION. (See Awarp.) ARBITRATORS, agreement to refer disputes to, by partners, not enforceable in equity . é z ‘ 3 5 . 495 equity will not enforce aoe att e stu to 3 F ‘ . 1209 not bound to discover the grounds of their award ‘ 7 . 1235 not to be made parties except in cases offraud . 3 s . 1235 ARRANGEMENTS, FAMILY. (See Compromiszs.) . ‘ - : 96 | ARREST, WRIT OF, jurisdiction asto . 7 , 4 . - - . 1215 to 1223 formerly writ We exeat regno . 5 ‘ : : . 3 . 1215 origin of . 5 . a . . ‘ ‘ a . 1215. to what purposes applic é é ‘ : « 1216, 1217 granted in cases of equitable debts and aie ‘ eo) a . 1218 in cases of alimony . 7 ‘ . 1219, 1220 when balance admitted, bat takoae ainda claimed 1219, 1221 demand must be certain and actually due, not contingent . . 1222 not granted to foreign plaintiff 7 : ‘ . » «1223 may be against foreigner within the fnetsatotion ; . ‘ . 1223 ASSETS, what are legal © 0-8 8 Ht tt 396 what are equitable . . 5 3 ‘ 4 : : a 396 522 INDEX. ASSETS—continued. marshalling of 7 ‘ ‘ , s . 5 . 408 sale of by executor < 5 ‘ é 417, 419 aa Aeyiacinie ) ASSIGNEES, take subject to all arinitien F ; : 2 F - 823, 877 ASSIGNMENTS, jurisdiction as to . ; . . . ‘ . 853 to 880 of equitable property or dive: Notice necessary to trustee to perfect title : . * a 5 < . 877 of dower, jurisdiction in —s ‘i ‘ r - 3 : "461 to 467 (See Dowsn.) by debtors giving preferences to creditors, inyalid ‘ , - 273 general, for payment of debts . ‘ : . 855 not necessary that creditors should be donitareat adie 5 856 such assignments made voluntarily may be revoked till weacitons assent . ‘ 7 : . 857 assignee takes interest of assignor ef fine of een . 858, 877 special assignments 7 . é i ‘ 7 Fi . 859 choses in action assignable in eatiy i ‘ ‘4 5 é . 860 debts assignable . Fr ; 4 4 ‘ ; c . 860 of contingent interests and axpectanadee ‘ ‘ ‘ » B8él distinction between assignments at law and in git A . 870 to 874 mere mandate from principal to agent may be revoked < . 875 no particular form necessary for assignment of chose in action . 876 notice should be given to debtor . 3 r 5 i 4 s BY what interests are not assignable . ‘ ‘ f ‘ . 866, 869 pensions . . ‘ ‘i 5 : : : . 7 « 868 half-pay . : ‘ ‘ % a 5 . - 7 . 867 champerty and maintenance . ‘ x , 878, 878, 880 ATTORNEY AND CLIENT, transactions between, closely watched . : : : 225 cannot make gain at expense of client . i ‘ 7 . 226 not under incapacity to purchase from client : Se. 3% 227 onus of showing bargain fair, lies on attorney ‘ i . 227 must show no advantage taken. ‘ . . 227 applies peculiarly when client indebted to sttomnay 7 228 extends to cases where attorney by previous employment has ai: tained peculiar knowledge : 3 A 3 i og . 229 gifts from client to attorney void . ‘ F ; é . 230 hasno lien on trust fund 3 e 5 . 1041 AUCTIONS, engagements not to bid against each ‘tlie at ~ . . 206, 207 where underbidders or puffers areemployed — . i . 208, 209 purchase at auction by trustee . . 240 AULA REGIS, administration of justice in England tienes sniid o gs. Ag other courts derived out of . . . . . : : 19 AVERAGE, GENERAL. (See Ganerat Amen ) AWARDS, jurisdiction asto . . 7 ‘ Si Ws 1198 to 1214 in cases of fraud, mistake or Bats ‘ s 1199 to 1202 INDEX. AWARDS-— continued. in cases of mistake of law 2 5 ‘ : in cases of mistake of fact further explanation of mistakes of law aah fact judgment ordinarily conclusive on matters of fact arbitrator functus officio when award made 7 agreement to refer, not decreed arbitrators not decreed to make an award 523 « 1203, 1207 . - 1204, 1207 1205 - 1206 . 1208 1269 1209 . . under agreement to pay such damages as may be awarded, no cause of action till award made unimpeached award bar to action é . : when specific performance of, decreed or not . award may be good in part and bad in part . arbitrators not compelled to discover grounds of award ‘ when arbitrators should be parties or not to a bill of discovery B. BAILIFFS AND RECEIVERS, had the benefit of action of account at common law BAILMENTS though trusts, are cognizable at law . 3 ‘ BARGAINS, catching ‘ ‘ r unconscionable . with expectant heirs, reversioners, &c. BARS, PECULIAR IN EQUITY, lapse of time . - ‘ * é . ‘ laches account stated * purchase, bona fide without abies BIDDINGS AT AUCTION, when fraudulent BILL OF PEACE. (See PEacr, Buut oF.) BILL QUIA TIMET. (See Quis TimeET.) . BILL TO PERPETUATE TESTIMONY : ‘ (See Trstimony, BILL 10 PERPETUATE.) . - 1210, 1211 . . » 1212 . . 1212, 1213 1214 1235 1235 324 30 . - « 186 « 174, 175, 176 . - 258 to 261 . 4, 1248, 1249 44, 1243, 1250 ‘ . 383 299 et seq. . 206 to 209 . 642 to 649 . 620 to 641 - 1239 to 1242 BILL OF DISCOVERY or te , ‘ 1224 to 1238 (See DiscoveRY, BILL OF.) BILL OF EXCHANGE, omission to endorse, relief when given. . . 79 BONA FIDE PURCHASERS, protection of . 280, 299 et seg. (See PURCHASER.) BONDS, lost, relief in cases of, and the grounds thereof. 59 to 64 on condition of the party’s giving indemnity 60 when affidavit of the loss is required 61 relief against penalties and the ground thereof 67 of apprentice, when apportioned > se 73 joint, when deemed joint and several 114, 115, 116 when not signed by all the parties ‘ . . 118 \ for giving consent to marriage, void ‘ ea x post obit bonds, relief in cases of 7 relief of sureties on bonds and contribution . a . 118, 365 to 375 524 INDEX. BOUNDARIES, CONFUSION OF . , é ; . 450 to 46 (See CONFUSION OF Bounpantes: ) BROKAGE CONTRACTS . - : . - « 186 (See MARRIAGE AND Hesay Guneninorar ) Cc. CANCELLATION OF DEEDS AND INSTRUMENTS, jurisdiction asto . . : ‘ é : : . 517 to 533 courts of law cannot give relief . “ ‘ ‘ ‘ ‘ - 517 relief in equity not of absolute right . 3 ; é és » 518 grounds of jurisdiction . fj . : . : 7 . 519, 528 when equity gives relief . : _ ‘i ‘j ‘ - 520 to 523 various classes of cases. ‘i e ‘ fs ‘ . 521, 522, 523 when equity will not interfere . ee) Oa ee ODE whether equity should interfere when deed ool , ri) jurisdiction now maintained . : 526 where illegality appears on the face of ‘ie instonment aatiity will not interfere . s i - Zi 2 c ‘ e . 527 relief where deeds detained . : - ‘ ; 3 F . 529 when parties may have inspection . a z ‘ i j . 5380 reversioners may have deeds secured. ‘ ee » 530 cancellation may be ordered where deed cloud on title ; é . 53l where instrument treated as released . : . . 582, 533 illustrations of relief in such cases . ‘ ‘ ‘ ‘ Ps . 533 CATCHING BARGAINS, fraudin . 5 : 3 : : > «» « 186 CAVEAT EMPTOR, when maxim applies. 3 - : oe « 148 CESTUI QUE TRUST. (See Trustuz). CHAMPERTY, when assignment void for . ‘ . ‘ : . 878, 879, 880 CHANCERY ACT. ‘ J & sce ~24 CHARGE ON LANDS FOR PAYMENT OF DEBTS, when charged and when not . ‘ . i . ‘ . 403 to 407 CHARITIES, : jurisdiction as to. ‘ A ‘ : . 763 to 782 definition of term charity as wed in vee s % . 763 what gifts are charitable within meaning of stetinee of lige. itable uses 3 i z ‘ . A - . 764, 766 gifts so regarded by snatiey , : : we 4 . 765 gifts for private charities not within statute : : 767 bequests apparently charitable, void if against policy of the ie 768 what is a superstitious use. s ‘ : ‘ . 769 duty of the crown where gift void as superstitious. ‘ . 770 where gift has no charitable purpose and is void, it goes to re- siduary legatees or next of kin. i § : 5 é . 770 statute of mortmain é , : . é ji . 77 what devises are void since thug vintute, 7 . q . 772,773 gifts to improve land already in mortmain valid . Fi : . 774 charities favoured by the law . : 7 : é eo eg a, AB: instances of this. , ‘i j ‘ ‘ 2 . 775, 776 doctrine of cy pres, whatis . : : ‘ : ; : oe ONG INDEX. CHARITIES—continued. general principle on which court acts when it is applicable t when defects supplied in aid of a dinky lapse of time no bar in charitable trusts . assets not marshalled in favour of charity F how assets appropriated where gift partially void . rules as to resulting trusts in favour of charities CHARITABLE USES, statute of . - what gifts within meaning ae statute . legacies for, no marshalling of assets in favour of . CHATTEIDS, specific delivery of . (See DELIVERY UP OF Clitwmrnna. ) CHOSES IN ACTION, ASSIGNMENT OF, in equity . : ‘ ‘ ‘ ‘ 3 ‘ CLIENT AND ATTORNEY. (See AttorNEY ann CLIENT). CLOUD ON TITLE, cancellation of deed as , COLLUSION BY EXECUTORS AND ADMINISTRATORS, on sales of personal assets to trustees and executors. COMPENSATION, when decreed for improvements on an estate in equity . in cases of partition for owelty Q COMPENSATION AND DAMAGES IN EQUITY, when decreed . when not . jurisdiction asto . ‘ mode in which asserted when incidental to other relief when specific performance refused . when defendant seeks compensation jurisdiction now by statute . ‘ ‘i COMPOSITIONS, secret by creditors . : si a COMPROMISES, in ignorance of a rule of law . . when valid of doubtful rights 6 é trustee not justified in pakige ‘ ‘ : . by a person in drink . . F family supported on principles of anti . ¥ what necessary tosupport . ‘ 7 A 7 CONCEALMENT, what it is, and relief in cases of a . i in cases of insurance - ‘ . CONDITIONS, in restraint of marriage o 8 . conditions and limitation, Sifescnne between : . 764 764, 765 3 . 781 . 552 to 554 860 531 420, 421 237 (note) 42 478 600, 605 . . COL . 600 to 609 . 602 603, 606 604 . 607 . 608, 609 277, 278 94 93 : ‘ 94 ° ‘ 95 97 . 5 96 . : 96 « 149 to 157 152, 153, 154 192, 194, 195 . 208 526 INDEX. CONDITIONS—continued. what conditions affecting marriage are legal 204. how viewed at law ‘ ‘ - % « . 1085, 1086 at law divided into four ne r . 1087 possible and impossible 1088, 1090, 1091 precedent and subsequent 197 to 200, 1089 equity not bound by the same rigid ies 1092 when relieved against in equity : ” # : 1092 CONFUSION OF BOUNDARIES, jurisdiction in cases of . 5 450 to 460 jurisdiction very ancient a ee . . * 451 two writs in the register concerning boundaries a . 452 origin and history of the jurisdiction 453, 454 exercise of, watched with jealousy oo 455 when it will beexercised ~*~. 456 when confusion arises from negligence 457 to suppress multiplicity of suits 458 where the confusion arises from fraud 457 from the peculiar relation of the parties 457 when the matter is cognizable at law , . 456 when the remedy by distress, from confusion, is fceynactioatle . 459 where an agent confounds his own property with his principal’s 331, 460 CONSENT, necessary in contracts j 3 159 fraud in withholding consent to marriage 182 CONSIDERATION, good and valuable, what 265. when meritorious, is sufficient 265 CONSIDERATION, INADEQUACY OF, does not per se avoid a bargain 174 relief granted, where there is fraud 175. where the parties cannot be:placed in statu quo 176 deed on immoral consideration void 214 CONSTRUCTIVE NOTICE, (See Notice.) CONTINGENT INTERESTS AND RIGHTS, assignable in equity 860 CONTRACTS, apportionment of ‘ . B47 by persons in drink 158, 162, 163 in restraint of marriage 192, 193, 202 in restraint of trade 205, 714 against public policy 186 to 219 for sale of offices 212 arising from turptitude 213. affecting public elections. 215 what capable of confirmation or not 219 by a party under duress or imprisonment 167 consent necessary in 159 of marriage brokage ‘ . 186 specific performance of, when decd or hee 534 to 599 CONTRIBUTION, jurisdiction in cases of 345 to 360- INDEX. 527° CONTRIBUTION—continued. between sureties 5 ‘ ‘ ‘ ‘i 365 to 373 by legatees in case of deen of aseata . - 5 : . 3874 by partners. ‘ . és « 3875 by joint tenants, en in common, and by ‘aaah owners . - 3876 CONVEYANCES, FRAUDULENT. . 5 te 264 to 298 (See FRAUDULENT Goxvavaons. ) CONVERSION OF PROPERTY, EQUITABLE, jurisdiction as to 2 . 991 to 1001 from real to personal, or ¢ soatee ‘ - ‘ A i - 992° direction to convert must be imperative . ‘ 992 absolute conversion takes place at date of deed, ifn no thes relfttert out. 4 7 ie pe BRR Se ee) tee, 19998 caution necessary in employing rule ‘ ; . , ‘ . 994 may be made to depend on option ‘ : ‘ . ‘ . 995 no conversion where object fails. 5 z , 5 a . 996 where partial failure ‘ 5 i . 997 ‘ wrongful conversion does not affect cine que tt a, . 998 party may elect to take unconverted . 3 5 z 7 . 999 where party cannot elect i 5 5 ‘ , ‘ . - 1000 may be express or implied 7 : ‘ ‘i ‘ . 1001 CONVEYANCE, WHEN A TRUST, when made without consideration 3 r i 1016 when purchase in name of another ‘ j ‘ # * 1018, 1019 COPYRIGHT, remedy in equity for infringements of Se an Hh 694 to 704 when no remedy. : i 7 . i ‘ ; . 697 COUNTERMAND, of voluntary trust or assignment when good . 3 ‘ . 857, 875 COURTS OF COMMON LAW, distinction between these and courts of equity =. R ‘ s 10: remedies in, often defective . . . +, + 2B to 16 confined to the parties in litigation meters then 4 : 16 their forms of proceeding and judgments more sehtintaelt then those of equity i ee ee, Se TOES COURTS OF EQUITY, do not abate the rigor of the common law. a 5 are governed by the same rules of interpretation as the sousts of law . ‘i is a . 3 : é _ : : 6 bound by eoaeiedte r woe ee ge HS distinction between these and os of ier a : , - 10to16 different natures of the rights and remedies regarded in these courts and courtsoflaw . . - «+ I21tol8 their remedies and decrees may be wdljanedl és wind the exi- gencies of a case . . 18, 15, 16 may administer remedies for rights not roi at fue . 10,122 have cognizance of trusts - & be deh ee os 1D other subjects of which they have euiniieae 5 . ° . 13 will interfere by injunction to prevent wrongs - . » - B will compel a specific performance of acontrach - + + + 13 528 ; INDEX. COURTS OF EQUITY—continued. their forms of proceeding flexible . ‘ 16 may bring before them all parties interested in the suljent- madi 16 require the defendant to answer on oath ‘ ‘ 17 have jurisdiction, where a plain, adequate and complete oitoae cannot be had at law ‘i 18 their jurisdiction is concurrent, axelnnies ead stay to that of courts of law . f 5 : - : é 18 origin of, in England, aroliedd in chetaclly 7 ? - ‘ 19 derived out of the Aula Regis . ‘ : 4 : 19 of very high antiquity . 5 : . 20 jurisdiction of, difficult to sieataln: its origin ‘ 20 opposition to by parliament . é DY in this Province, created by statute : ‘ 24 CREDITORS, agreements to delay, hinder or defraud . z F Z - 264 conveyance must be on good consideration and bona fide . 265, 266 voluntary conveyances binding between the parties . 3 266 post nuptial settlements generally void . 5 . : “ 267 not when in pursuance of &nte nuptial contract . ‘ ‘ . 267 if ante nuptial contract by parol, settlement void . 4 . 267 if creditors delayed, immaterial whether debtor solvent or not . 268 provisions of 13 Eliz., c. 5 5 ‘ . aly «6 , i ‘269 must transfer property liable to be taken in execution . - . 270 when presumption of fraud arises . ¢ 271 judgment at law must be recovered before settlomant fered 272 preferential settlements now forbidden . A ‘ 5 - « 23 under the Insolvent Act. Fi 7 ‘i . . —-:274, 275 deed may be impeached after debtor’s aust i é . 276 secret advantage or composition to particular creditors, oa 277, 278 secret agreement between insolvent and assignee, when void. - 279 bona fide purchaser for value, when protected : i 3 . 280 what circumstances are badges of fraud . i : : Fi . 281 CROWN, its jurisdiction over lunatics . < . ‘ ‘ : . 1138 may shew mistake in its grant 5 . : F 3 . 128 CUMULATIVE LEGACIES . - 3 : & é ‘ ‘ 4 976 CY PRES, compliance with conditions . ‘ A ‘ ; r 3 . 200 doctrine of, in charity cases. : ‘ : : eh OTE in cases of wills eh Me ‘ 3 , » «994, 925, 926 D. DAMAGES AND COMPENSATION, jurisdiction asto . é ‘i 3 5 ‘ 5 . 600 to 609 (See COMPENSATION, ) DAMAGES LIQUIDATED, what are . 3 ‘ : , . 3 * . i . iol no relief in equity sacsitist 2 . ‘ : : ‘ . 1101, 1102 DEBTS, charge on estate for payment of . , 891 DECREES of courts of equity may be adjusted to meet the exigencies sof & case 16, 322 INDEX. DEED, loss of not always ground of relief. < dS suppression and destruction of, and relief genic’ DEFENCES, lapse oftime . . . cm ails <@ : ‘laches ‘ = F ‘: . < ‘ account stated 5 . c's . : purchase bona fide without notice . oe ght DELAY, when surety is discharged thereby . * DELIVERY UP OF DEEDS. (See Cancetnation.) DELIVERY OF CHATTELS of specific chattels . : - ‘ . ‘i of antiques i 2 ; . ‘ i of saw logs DEPOSIT OF TITLE-DEEDS, an equitable mortgage . . : . DISCLOSURE OF TRADE SECRETS, injunction to prevent . é DISCOVERY, BILL OF, jurisdiction asto . ‘i ‘ . é every bill is a bill of discovery . s 2 what necessary to maintain . origin of jurisdiction . 3 . grounds on which bill may be ere right to discovery must appear. . j when for heir against devisee or not ‘i it lies not for plaintiff having no present title must shew right of action or good defence nor in aid of any criminal or penal suit 7 nor in aid of a court of competent jurisdiction nor in aid of arbitration e : nor against arbitrators to discover a of awed no discovery against policy of the law . : ‘ it lies not against witnesses generally . j , it lies not against bona fide purchaser. ‘ é DISCOVERY, 44, 1243, 1249 529 62 179 44, 1243, 1251 . 383 299 to 304 248, 372 552, 553 554 548 826 716 1224 to 1238 1224 1225 1226 1227 1228 1229 1229 1230 1231 1232 1233 1235 1234 1236 1237, 1238 when a party, having a title to this, may go on for further relief 49 to 52 424, 425, 426 DOMICILE of deceased, in distribution of assets ef DONATIONS MORTIS CAUSA, what they are é . é 3 differ from legacy in ee Seapactin 5 zi 3 differ from gift inter vivos . ‘ , - what can pass by . ‘ * 3 ‘ ‘ ‘ what necessary to make good é r ‘ DOUBLE LEGACIES. (See Savisraction.) DOUBLE PORTIONS. (See SaTISFAcTION. ) DOWER, jurisdiction in 7 . 8 wk grounds of the jurisdiction ae, wt LM ‘ remedy in equity in some cases sndtepenndile favored in equity . j a ‘ ‘i 446 447 447 448 449 461 to 473 461, 462 463, 467 . 464 530 INDEX. DOWER-—continued. bill for discovery and relief has been maintained against yon Jide purchaser a . 3 ‘ : . . 4 465 controversy about this paint . : ‘ 4 - 465 plea of a bona fide purchaser is good against a silegal title ° - 466 sale for taxes destroys right to dower . ‘ : 7 : - 466 sale under execution does not . ‘ . 3 . 5 - 466 equitable dower . ‘i : , , A - 468 widow’s rights as to feitiee ace = : ‘ F : : - 469 not saleable under execution before assignment . . 7 » 470 in equity may be sold and conveyed before assignment » « 470 under contract to convey purchaser can compel removalofdower . 472 where wife joins in mortgage 2 - » 473 when a wife shall be put to her election tiktaraele ogra: nae & pro- vision . a 3 7 : é ‘ i » 471 DRAMATIC PERFORMAN CES, injunction to prevent piracy of ‘ ‘ ; . 2 “ » 704 DRUNKARDS, Coke’s fourth class of non compotes i é ‘ ‘i . 162 their acts relievable in equity, where there is fant $ . » 162 when their contracts will beset aside . . . . . . 163 deed given in extreme intoxication ‘ ‘i ; : . 163 where relief refused to . é i ‘ ‘ . 7 Fi » 163 DURESS, relief incase of . ‘ ‘ ‘ ‘ , ‘ ‘ < , . 167 E, ELECTION, jurisdiction as to, . ‘ é : , i ‘ r 982 to 957 made under mistake 5 5 s : . : : . . 180 what every case of presupposes. ‘ : . 5 3 - 932 instances where party required to elect é r 3 , « 933 ground upon which equity interferes . és : é : . 934 illustrations of the doctrine. . s ‘ i ‘ . 935, 936 result of the authorities - ‘ A ‘ ; . ‘ - 987 doctrine depends on compensation ~- . a . 7 : . 938 applies to deeds as well as wills _ . j ‘ ‘ . é . 939 and to remote and contingent interests - ‘ : ‘ ‘ - 939 what is necessary to raise case for election _ : 5 . 940, 941 constitutes rule of law as well as equity é : e : - 942 competency of parties to elect — . 3 i ‘ < . 948, 956 where provision for wife inlieu of dower _ . ‘ 4 . 944, 946 what is necessary to put her to an election . 3 . ' - 944. mere gift of annuity not sufficient é 4 F . a . 945 where doctrine does not apply - 4 a. : . « 947 exceptions to the general doctrine . é 948 legatee declining one benefit given by a will, nok Noni to dectine another . : 2 a oe ‘ » . 949 doctrine does not apply ts case 2 of opilibans ‘ 950 persons called on to elect, entitled first to ascertain sdlativelealiies 951 INDEX. DOWER —contiuued. is either express or implied : = ‘ as to acts from which election will not be inferred acts of implied election bind representations when representatives may elect for themselves as to election in case of an infant in case of amarried woman. . EQUITABLE ASSETS, what they are : (See ADMINISTRATION. ) EQUITABLE ESTOPPELS, means of promoting fair dealing and rebuking fraud acquiescence precludes injunction . married woman estopped by acquiescence deception creates an estoppel 3 i joint-stock companies bound by acquiescence 4 distinction between executory and executed interests party remaining silent when estopped fraudulent purpose and act creates estoppel . in regard to land dedicated to public use effect upon deed of married woman created by acts or words 2 : effect of prospectus of joint-stock company . ‘ ‘ courts of equity adopt same construction as courts of law EQUITY, its nature and character : imperfect notion generally Satertained as s - jurisdiction now embraced by ‘ é its object is not to abate the rigor of the common law does not supply defects of positive legislation - * governed by established rules and precedents : meaning of the term . “ . . . * . 531 . 4 952 . 953, 954 . 955 . 8 955 . 956 . 957 396 1243 1243 1244 . 1245, 1247 . 1246, 1248 . 1249, 1250 » 1251 1252 1253 1254 . 1255 f - 1256 . » 1257 1 to 18 aontn By se ys 10 to 18 is that portion of remedial justice ealessle entibavea by a court of equity, &c. 3 : : 3 H : origin and history of, in England . < i - in this Province . 3 “i (See Maxims in Equity—GeneraL RULES.) EQUITY OF WIFE TO A SETTLEMENT e. J% 7 ; (See MARRIED WoMEN.) ESTOPPELS. (See EquiraBLe EstToppPets.) EVIDENCE, in courts of equity different from courts of law . 10 19 to 23 - 24 to 28 1185 to 1190 17, 138 parol evidence, when admissible or not, in cases of written instru- ments . . . ‘ * . é i in cases of fraud. e EXECUTORS AND ADMIN ISTRATORS, trustee, for next of kin, &e. . ; ‘ : - , when trustee of residue or not ‘ ‘5 ‘ a ‘ executor who is a debtor, when a trustee 5 “ “ trustees for legatees 2 ; power givento, when a trust . 5 . a oe when it survives . 5 ‘ “1 : i Pi ‘ F - i - +» 138 . «10% . «10% . «1026 . 435 894, 897 «899 532 INDEX. EXECUTORS AND ADMINISTRATORS—continued. when it is personal Pe ot ae joint, when accountable for each ttic# 's acts payment of legacies in ignorance of outstanding debta collusion on sale of personal estate “ : ‘i é waste by < ‘ : i : ‘i sale of assets . i é a é és may retain for their own debe, when : protected in equity when assets lost with detente , compensation to ‘ r : ‘ a s EXPECTANTS, relief of, against freon = Sale. gS F, FACTS, IGNORANCE OF, when ground for relief . (See MISTAKE. ) FALSE REPRESENTATIONS, when relieved against . - . 899 - . 1072 . 68, 69, 70 - 420, 421 - . 47 . 417, 419 » . 418 - 658 . 827, note. « 258 to 262 99 to 109 . 139 to 143 FAMILY COMPROMISES, invalid through concealment of material facts 156 supported upon principles of policy 96 FEME COVERT, See Married Women.) FIDUCIARY RELATIONS, fraud in cases of . 220 to 263 See FrauD, CoNSTRUCTIVE. ) FIRE, when premises are destroyed by, no relief against rent 80 FOREIGN ADMINISTRATIONS, how assets distributed under 7 422, 423, 424 FORFEITURES. (See Penatties AnD FoRFEITURES.) jurisdiction to relieve against ‘ i $ 67, 1084 to 1110 when not relieved against 1107, 1110 not in cases ef liquidated damages 1101 what are liquidated damages F 1101 re-entry for non-payment of rent, when ieltoved r 1105 never enforced in equity ‘ : is 3 3 ‘ . 1103 FRAUD ACTUAL . 3 “ ‘ ‘ ¥ 133 to 183 cognizable at law anit in eaniity < ; 3 3 30, 133 cases of, not relievable at law or equity 31 jurisdiction in cases of . 5 : , & . . . 138 definition of, inequity . 3 A 3 7 134, 135 five cases of, stated by Lord Tisawiele. 136 instances of relief difficult to enumerate 3 Fi . . 137 proofs of, different in courts of equity and courts of law . 18 evidence requisite to establish it . ‘ ‘ 7 ‘ . 139 in cases of misrepresentation (suggestio falsi) i ‘ . 139 to 143 the misrepresentation must be of something material . 140, 142 binds principal although innocent 141, 147 must be, where one party places a known trust in the other 3 sew 148 in affirming what one does not know to be true. » « 148 inmeremattersofopinion . . . . .« . « « 14 conduct of buyer andseller . : i . i ‘ . 148, 144 INDEX. FRAUD, ACTUAL—continued. common language of puffing commodities party must be misled by the misrepresentation it must be to his injury subsequent acts may bar relief principle on which treated as fraud policies of insurance ‘ cases of suretyship when creditor not bound to dissing ifasked he must . bound to make known sapthing ate . broker selling his own property as that of anisthige. in cases of concealment (suppressio veri) not every case of.concealment will give right to relief . . 533 144 . 145 . 145 . . 146 . o: 148 . 149 to 157 . . 149 . 150, 151 151, 152, 153 154 154 . 154 . 155 same principle applies to all cases where party under obligation to disclose material facts concealment in family compromises fiduciary relations attorney and client by a trustee to the prejudice of his cestut que ist 157 by partners ¢ . : - 156 . - 156 ‘ . 157 157 157 bargains by surprise, imposition or nue ‘idtigenne in cases of idiots and lunatics in cases of drunkards. 7 of mental imbecility - . of undue influence, as duress of infants of femes coverts . of unconscionable iigeaties of inadequacy of consideration of surprise of the suppression aia daseenetion of disse &e. of illusory appointments, fraudulent awards, and other cases of fraud . 158 to 162 158, 162, 163 . 164, 165 . . 167 168, 169, 170 171, 172, 173 . . 174 174, 175, 176 a oe A 178, 179 178, 180 of the prevention of acts to be done for the benefit of third persons . where a recovery is prevented of the prevention of legacies of withholding consent to marriage contract in fraud of third parties, how far illegal FRAUD, CONSTRUCTIVE, 1st. jurisdiction in cases of definition of . 2 , é three cases of . . When agairst public policy in marriage-brokage contracts secret contracts for promoting a marriage agreements for influence over another person where heirs agree to share equally . 181 181 181 182 183 . 184 to 322 184 185 . 186 to 219 186 . 187 188, 190 . 189 534 INDEX. FRAUD, CONSTRUCTIVE—continued. to procureawill . * as 3 : = + . 189, 190 secret settlement by woman before marriage . ‘ a . 191 in some cases upheld 3 5 ., 191 in some, husband cannot impeach . im 3 r ‘ » 191 contracts and conditions in restraint of marriage, giles void 192 how far conditions in restraint of marriage void, depend on circum- stances . “ ‘ : 5 ‘ ‘ : . - 194, 195 reciprocal contract to marry, good . 7 . * . 7 - 193 but not if fraud on third party . A F F : 2 193 condition when bequest over, and when not . “ 196 conditions annexed to personal estate and real estate ”. . 197, 198 whether rule applicable to legacies on condition precedent . 197, 200 conditions tending to induce separation between husband and wife void . s ‘ : ‘ 3 . ‘ a ‘ - 201 those restraining the marriage of a widow, or any other woman, when grantor hasaninterest . . . . « 202 contracts in general restraint of trade, void . . 205 contracts in special restraint of trade, not void . : 205 where parties engage not to bid against each other at auctions 206 where underbidders or puffers are employed . ‘ é - 207, 208 contracts in fraud of the legislature . 210 contracts grounded upon violations of public seis, 211 contracts for sale of offices, void 212 contracts of moral turpitude, void . 4 213 party may avoid his own deed, by proving for ftieaail’n or ‘ranetcal purpose . 2 3 ‘ " 214 devise in evasion of the atatitte of chevaneian eit 215 contracts affecting public elections, void ‘ : . 215 relief where parties are participes criminis . 3 . 216, 217, 218 the immoral agreement must be repudiated 214 no relief if non-performance of the immoral agreement i the other party set up 214 when money will be ordered es be paid hanks, 217 when such contracts are capable of confirmation i .- 219 d. Arising from peculiar fiduciary relations 5 i ‘ . 220 to 263 between parent and child. é ‘ , . . 221 to 223 while influence lasts, onus of upholding estes ctiiin rests upon parent. A 222 transactions between ied nad child Hasardie with lextoniey 223 applies to other family relations . ‘ 2 ‘ a 224 and to confidential advisers 224 between client and attorney . . ‘ . 225 to 230 between medical adviser and patient : ‘ ‘ . 224 between principal and agent. , 5 % . 281, 232, 233 between guardian and ward. z A ‘; i . 235, 236 between trustee and cestut que trust . 7 ‘ 3 . 237 to 241 between principal and surety . is r é ‘ . 245 to 252 INDEX, 535 FRAUD, CONSTR UCTIVE—continued. 3d. Upon the rights, &c., of third persons, or of the parties themselves é s 3 ‘ i ‘ fi . 258 to 322 in{cases under statute of Sealy 2 : ‘ 4 254 where the contract is grossly unreasonable . é 255 relief of common sailors . : ij ; 4 256 relief of heirs, reversioners and gepantarte . ‘i a . 258 to 261 against post obit bonds. 5 : r ‘ , ; ‘ . 262 frauds on creditors . a : ft ‘ ‘ : , . 264 to 281 (See CREDITORS.) fraudulent conveyances . ‘ 3 j i ; . 264 to 270 (See FRAUDULENT Converiveni,) whereja father covenants, on the marriage of his daugnter, to leave her certain tenements, &c. 3 % A . 282 private agreement where a friend has advanced money . ‘ » 283 guaranty avoided by the suppression of material facts . 283 where false impressions or affirmations are given . ‘ 284 no difference between expressed and implied representations 284 where one, having a title, stands by and encourages a sale, he is bound by it 285 but"party standing by must ane on aware of iy Hiphts 286 where money is spent upon another's estate, through mistake of title 287 rule,different, ee money ieee cogs land ms be dad of another . ‘ . 288 incumbrance which was rapeaTe wvialercitad . 289 lien postponed, where party allows debtor to represent it as axtin- guished 290 where trustee permits tle deeds i go oii of his possession . 291 case of a bond upon an intended marriage. . : 7 291 generaljgrounds of these cases . ‘ é . 293 voluntary conveyances of real estate in ris to sfexsubng pur- chasers when avoided 5 z ‘ . 294, 295 (See FRAUDULENT Conveennuit’ protection of bona fide purchasers 296 FRAUDS, STATUTE OF, cases‘affected by ° ‘ ; ‘ ; $ . 254, 564 when allowed as a bar in oat ornot . 3 i . 565, 566, 567 not in cases of part-performance . 3 . . ‘ i . 568 in cases of trusts. a : . 5 ‘ é . 742, 743, 744 FRAUDULENT CONVEYANCES, 264 agreements which delay, hinder or defraud creditors. ‘ conveyance must be on good consideration and bona fide . 265, 266 voluntary conveyance binding between the parties, though void as to others . 3 ‘ : post nuptial settlements panacally void . . . . not if in pursuance of ante nuptial contract . é . a void if ante nuptial contract parolone . 3 ‘ - - 266 268 267 267 536 INDEX. Z \ FRAUDULENT CONVEYANCES—continued. f if creditors defrauded, is immaterial whether debtor insdlvent or not . . 3 : i ee 38 8 6 268 provisions of 13 Eliz, c. 5. a ‘ & é ‘ “ . 269 must transfer property liable to be taken in execution. . . 270 when presumption of fraud arises... ai. Ae oe 6) 271 judgment at law necessary before settlement can be impeached . 272 not necessary when only declaration sought . . . ; . 272 preferential assignments now forbidden 7 ee ee ee ee under the Insolvent Act . s 5 ‘ » « 274, 275 deed may be impeached after debtor’s dent, . os 6 0 6 276 secret undue advantage to particular creditors, void _. - 277, 278 grounds for this . i 7 be. hates - «© « 278 secret agreement between iiaclvent and assignee, vii, . . 279 bona fide purchasers for value protected. 3 » « 280, 299 what circumstances ‘are badges of fraud . ‘ : 5 » 281 “ @. GENERAL AVERAGE, jurisdiction in cases of . ‘ . c 3 7 P » 861 to 364 definition of . é 2 3 ‘ . J ‘ . ; . 861 on what principle founded . . 5 2 i ‘ 7 . 3861 confined to sacrifices of property . i ‘ . ; : . 362 difficulty of adjusting it atlaw . ‘ 2 és é . 3862, 364 rule of maritime law asto . . . : 3 3 5 . 363 mode of proceeding . j . . . F i 8 . 363 GENERAL RULES, in equity . 7 7 : . A A ‘ . - 48t0 52 GIFTS, by client to attorney, wold . 7 ‘ : : ‘ . . 230 GOODWILL, saleof . ‘ ‘ ‘ ‘ , ¥ » 711, 712, 713 party selling may start new Tsien : . eo og SE must not represent as continuation of old itunes’ : - 711, 712 GUARANTY, is avoided by suppression of material facts . eos ‘ + 283 GUARDIAN AND WARD, | their peculiar fiduciary relation . . he ise ©. 235 cannot deal with each other . - 3 ‘i . . S . 235 when equity will avoid transactions between, even after the minority of the ward 3 3 : ‘ ‘ : 7 « 235 when the relation has entirely ceased . 5 se ee 886 influence presumed until distinct evidence of its termination . 236 GUARDIANS OF INFANTS, appointment and removal of . ‘i 3 - : ; - . 1113 (See Inranrts.) H, HEIRLOOMS, specific delivery of : . . * a ee a See BBS HEIRS AND EXPECTANTS, agreement of, to share equally, when valid . ‘ . - . 189 INDEX, 537 HEIRS AND EXPECTANTS—continued. when relieved against fraud . s st ‘ ‘ - 258 to 262 inadequacy of price will not now set aside contract with . . 259 transactions with knowledge of parents or person in loco parentis, not necessarily valid . ‘ ‘i i 3 » 260 doctrine does not affect reayonable family eettlesnette ; r - 261 HUSBAND AND WIFE. (See Marrien Women.) fraud on husband’s marital rights . ‘ 191 rights and liabilities of, at law - 1160, 1161, 1162, ‘1164, 117 1, 1185 rights and liabilities of, in equity . * . ae. . 1163 post nuptial contracts . : 7 : . - ; $ « 1165 in cases of gifts and grants. F : ‘ e 7 . 1169, 1170 what is a trust for wife’s benefit . ‘i 7 : és 5 . 1173 separate property of wife ‘ es . j ‘ 3 . 1174 what words create a separate property in wife ‘ 3 . 1175, 1176 what not . 7 . ; $ 3 - + 1178 separate property, when and ae cesousiile with debts 1181 to 1184 equity of wife to a settlement . . 3 7 ‘ : 1185 to 1190 alimony, when decreed or not. . i 3 . , 1191 to 1195 separation of husband and wife . . a ‘ : - 1196, 1197 I. {DIOTS AND LUNATICS, jurisdiction asto . : ‘ é . 5 ‘ ‘ 1137 to 1146 origin of . ‘ - . . 7 F : . 1138, 1140 statutory jurisdiction in this Puovinde: A : . z ‘i . 1139 fraud in casesof . : 7 2 5 a ‘ ‘ . 158 to 162 consent necessary in contracts 7 8 . ‘ 7 . 159 not able to contract . . ‘ . ‘ . ‘ 7 ‘ - 160 Coke’s four classes of non compotes . ‘ j ; . ‘i . 162 how idiocy and lunacy tried . A ‘ 3 é . 1141, 1142 not confined to lunatics domiciled in the a 7 : is . 1143 their real estate may be sold to pay debts. . Z ‘ - 1144 surplus of same character as original estate . ; 3 1145 persons of weak mind may claim protection in court of agit . 1146 IGNORANCE OF LAW, relief in cases of . . ‘ 5 : - ‘ - 88 to 92 (See MIsTaKE.) ILLEGAL CONTRACTS. (See Conrract.) ILLICIT INTERCOURSE, agreement for, void . 5 . ‘ gan i : : - 218 DLURORS APPOINTMENT, relief in cases of . é . . : : : . ’ - 180 IMBECILITY, MENTAL, relief in cases of . . . : . : 2 - 164, 165 immaterial from what cause it arises. . . ‘ ‘ « 164 proof of fraud in cases of 7 5 ‘ é , : 3 » 165 where there has been no fraud. ‘ . ‘ ° ‘ : 168 538 INDEX. IMMORAL CONTRACT, relief in casesof . ‘ fs i 7 ‘ z F s « 2183 (See ContRACT- ) IMPLIED NOTICE. (See Noricz.) IMPLIED TRUSTS, jurisdiction asto . - + + © «+ + + 1012 to 1083 what are . . is . . . . - 759, 761 divided into two sevioval lakes > . 7 - . ‘ . 1012 1st, Those arising from presumed intention, money paid to one for use of another. . . . » + 1018 where trusts fail in whole or in part, resulting trust arises . 1014, 1017 when trust estate extends to crown Fi a ; . 1015 conveyance without consideration, when a af ‘ . 7 - 1016 purchase in the name of another person . 3 * . 1018 limited to cases where purchase in name of one person, and [con- sideration paid by another 3 ‘ 2 : 1019 by parent in name of son 2 - F ‘ F “1020, 1021, 1022 purchase in name of a wife. . . Z 3 : m . 1022 purchase by partners, when atrust, . : ; ‘ . 1023, 1024 when presumption of trust rebutted . . . r » . 1024 executor, when trustee or not, of residue ‘ P ‘ ‘ ~ 1025 executor who is a debtor, when a trustee 2 ‘ . . . 1026 purchase by trustee with trust-money . : . 1027, 1028 whatever acts done by trustee deemed done for cestut que trust . 1029 agent purchasing in his vwn name . , 3 4 é a . 1030 trusts from equitable liens . . : ‘i . ‘ - . 1031 whatalienis . - F ‘ . - 3 ‘ ‘ - » 1032 when a lien exists at law. 3 ‘ ‘ é ‘i A c . 1033 equity follows the law in enforcing liens ‘ , , . » « 1034 in some cases goes further a é ‘ a ‘ . 1034 liens in equity, which are not known at — ‘ ‘ 4 ‘ « 1035 sale usual mode of enforcing lien . c E r 7 ‘ . 1035 vendor’s lien for unpaid purchase-money 2 4 5 : . 1036 principle upon which established . 7 ‘ 2 ¥ . 1037 where purchase-money unpaid, onus of proving no lien on purchaser 1038 lien, how lost or waived . ‘ mi e @ & ~ « 1039 against whom lien exists . 7 ‘ . 1040 solicitor for trust estate, has no lien on dosti or fund i in ‘cont . 1041 lien of one joint owner for expenditure . ‘ js . 1042, 1043 for improvements made, bona fide 3 . 4 * 1044 of partner on partnership property . H » « 1045 certain rights against partnership property agpevack +0 alien . 1046 banker’s lien, on securities deposited for special purpose. . 1047 2d. Trusts independent of intention, money, paid by accident, mistake or fraud . . » « « 1049 purchase in violation of trust . : ‘ e ; : . 1050, 1051 wrongful conversion of trust funds . ‘ ‘ zs z 2 . 1052 trustee or agent making a profit . . » oe ee 1088 person assuming to act as trustee is liable as ciel, . . « 1054 INDEX, 539 IMPLIED TRUSTS— continued. principle of following trust funds applies as against the assignees: 1055 cestui que trust not bound by the acts of the other party - 1056, 1057 sale to purchaser without notice extinguishes the trust. . - 1058 powers, rights and duties of trustees , Fi 3 5 - 1059 trustee bound to good faith and reasonable diligenes ‘i - - 1060 extent of responsibility depends on nature of trust - 1061 trustee must keep trust property as he keeps his own - 1062 should keep trust-money separate . i ‘ a - 1003 responsible for loss by investing on personal —s ‘ 5 . 1064 general duties of trustee . ‘ , 5 ‘ 2 e + 1065 special directions must be followed . er 1066 charged with interest where interest made, or sane to ‘have beet made . A . is 7 - 1067 if trustee uses money cestui que may rain profits. . . . 1068 payment to agent is payment to trustee. - 5 i ‘ » 1069 how far co-trustees liable to each other . i ‘ 1070, 1077, 1079 general rule, each liable for his own acts A r . . - 1070 does not apply where one enables another to receive money . . 1071 different,rule applies to executors . : A * e : - 1072 executor acquiescing in misapplication liable . ‘ ‘ . 1073, 1077 where joint receipt given, each liable for all . ; F : . 1074 true exposition of principle as to joint liability . f - 1075 co-trustees appointing own agent, no breach of trust . ‘ . 1076 no relief to cestui que trust who has acquiesced . i . . 1078 court may remove trustees for misconduct . . s . - 1080 may remove one where others refuse to act with him . > - 1081 not every mistake or neglect will induce court to interfere . » 1082 jurisdiction is not confined to cases where the property can be reached if the parties can be so i ‘ ‘ . - 1083 IMPRISONMENT, contracts by party under . « 5 5 . : ‘ - 167 IMPROVEMENTS, on the lands of.another, when to be allowed or not 42, 287, 288 476 INADEQUACY, ; of consideration 5 3 < 5 x 5 a . 174, 175, 176 (See CONSIDERATION.) INCUMBRANCES, by whom, and in what proportions to be paid by parties . 353 to 358 when payment by tenant in tail extinguishes so) Ue) le, BBB concealment of ‘ S . s : » « 289 by whom borne, and how sega pets jad devised or de- scended . . ; . ei : ; ‘ 5 . 404 to 407 INFANTS, jurisdiction asto —. - x 4 . x ly . 1111 to 1136 origin of . ‘i ‘i : . . . eS : - 1112 appointment and removal of siaudians ° ° e : ri - 1113 who shall be appointed, question of discretion ' é “ . 1114 when court will remove . . 7 . é ‘ . ‘ . 1115 540 INDEX. INFANTS—continued. court will assist guardians in controlling wards. a ‘ . 21116 may be removed from parents - «+ 1117, 1138, 1120, 1121 ordinarily father entitled to custody . . . » . . 1019 court may give custody to mother . . 2 - ». . Ig what constitutes an infant a ward of court . . é » . 1122 not limited to infant domiciled within jurisdiction . ‘ . 1123 powers of court overa ward . ee 3 . - « « 1124 maintenance . : - ‘ : s “ - 1125 to 1128 court exercises care over ee . ‘ - x ‘i . 1129 marriage of wards . 2 - E : ‘ ‘ » 1130 to 1133 no interference with foreign guardians ; . ‘ - 1134 statutory jurisdiction as to selling and leasing infant's pro- perty . j . é c . : ‘ . ‘i 1135, 1136 INFLUENCE, UNDUE, relief in casesof . < 7 . . i : - 5 - 167 INJUNCTIONS, jurisdiction asto . . ‘ “ . - ‘ 3 - 650 to 736 what writ of injunctions ‘ « x ¥ . < . 650 preventive rather than restorative . x ft ‘ . 5 - 650 is peculiar to equity : ‘ . . 7 ‘ ri ~ . 651 granting is discretionary “ e 2 - : . 651, 696, 728 courts of common law may now grant . fi 3 . » . 651 1, To stay proceedings atlaw . % . « 653 to 667 relief not given after judgment, exonpbie on special grounds . . 654 party neglecting to defend at law cannot claim relief . o . 654 is not a prohibition of the court of law . : < ‘ ~ « 655 is directed against the parties only . ‘ ‘ és x a . 655 grounds upon which granted . . F . 655, 656 relief when judgment obtained by frand a ‘i s - . 657 where executor has accidentally lost assets . 5 658 ordinarily granted where party has rights he cannot sistieds - shy 659 against creditor suing at law after decree for administration . 660 party proceedings at law and in equity must elect . . . 661 to prevent suits at law by or against, of officers of a court of equity 5 e i i: . 662, 663 in case of proceedings in ain Aerial ‘ é é ‘ . 664 to suppress vexatious litigation . 7 7 . 665 to prevent setting up unconscientious defence “ . ‘i . 666 when suits at law deemed vexatious . . : : ‘ . 667 2. To restrain alienation of property . ¥ ‘ 3 . . 668 to 672 in case of negotiable securities . . . . «© « « 669 transfer of stocks . . s s : . « 670 suing upon debentures fandutently issued . . . «671 vexatious alienations, pendente lite. . J 5 owe oe 1612 3.:In case of waste . . ‘ ‘ ‘ ; , . 673 to 679 definition of waste ‘ 7 : 7 . . : . « 673 equitablewaste . . «1. we ee TT jurisdiction at law respecting wo gh CR od. gp ety me “BIE INDEX. BAL INSUNCTIONS—continued. relief in equity where none at law ‘ , 2 . . 674, where party has equitable rights only A $ when granted against tenant for life without ‘inpeachwient of waste to prevent waste in cases of tenants in common, or joint tenants In cases of nuisance 3 Oty 3 680 to nuisances (1) such as are injurious to the public; (2) such as are injurious to rights and interests of private persons... . (1) Public nuisances, jurisdiction as fo: of ancdenit aa in cases of purpresture . : ‘ : information lies to abate 5 ‘ f exercise of jurisdiction, beneficial , (2) Private nuisances i interference on grounds of sw eitinae eccieabts mischief common trespass when foundation for injunction . cases where granted obstructing lights obstructing water courses erecting buildings in violation of Sgaieauieiie right of landowner to support from adjoining land no relief if adequate compensation at law for trespass 5 in cases of timber, ores, and quarries . i ‘ ; - 692, in cases of patents for inventions and copyrights 7 pi 4 in such cases damages no adequate relief . s 3 : not of course to interfere 3 no relief if work irreligious, ‘aseal. Reellous or dbseana 7 5 what constitutes infringement of copyright j Z . S°. 2d maps, chronological tables and the like as to private letters . 7 . . ‘ 7 é unpublished manuscripts . publisher's interest in certain cases : 5 where partial invasion of copyright, no spiectiow snijumetions that sale of work thereby stopped . 7 3 ; 3 2 case of dramatic performances 7 : Shy publishing magazine in name of party seh iad ceased. E authorize it . 2 . . to sean iacdaient use a bukdaass name . 7 . . or of trade marks . 2 ° é . . ‘ g és : test of infringement é c : to prevent sale of articles of tide in name of ethivn person foreign manufacturer may obtain injunction er. sale of goodwill does not prevent starting a new business party selling cannot represent new business as continuation of old one . ‘ 7 ; ‘ 7 : ‘ ‘ . 711, no decree for specific performance of contract for guodwill of soli- citor’s business 5 . < to restrain carrying on iiunineas within a limited iisbataes ‘ when undertaking not to continue using trade mark given . 675 676 678 679 689 680 681 682 683 684 685 685 686 687 687 688 689 690 691 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 542 : INDEX. INJUNCTIONS—continued. to prevent disclosure of confidential secrets; e ‘ % » 716 vendor restrained from selling while suit for specific performance pending -. a OS eo o« MAD sales restrained where thes apaste: as & Said 5 s - 718,719 no interference with public functionaries exercising public duties . 720 stipulations as to character of erections enforced by injunction . 721 trusts of heirlooms and the like enforced by injunction + « 722 to restrain the sailing of a ship : é . . i a « 722 in case of lease accepted under misrepresentation J ; » 723 to restrain ringing of bells : . e e ‘ 3 ‘ . 724 to prevent writing for another theatre . . % 725 whether court will enforce negative part of contract sities it can- not enforce affirmative . é f e 7 i : - 726 to compel delivery of possession - é aha no injunction granted where there has ioe acquiescence . - 728 nor where gross laches. a ‘i ‘ . ® é - 729 nor to enforce unreasonable sxmarantbe . . . ‘ é - 730 nor to compel a person to write or act : . ‘ : ‘ » 71 nor to compel employer to retain a servant . : i : » TL nor to restrain applications to Parliament . ‘ 732 court will not enforce contract inconsistent with the in si policy of the country . : 733 court will not lay down general wiles tis limit discretion i in — ing or refusing injunctions : r ‘i . 734 undertaking from plaintiff to pay dianiapne sometimes sequitted . 735 court will not stay criminal proceedings -. 5 3 x . 736 INSANITY, of a partner, effect of . i : is : ; : ; . 501 INSOLVENT ACT, fraudulent conveyances under ai . s ‘i ‘ . 274, 275 INSTRUMENTS, LOST, jurisdiction in casesof . 4 é a a : . 59 to 64 (See AcciDENT— Bonps. ) INSURANCE, what facts must be communicated to underwriters . . 151 to 153. on marine policies . ‘ és . 4 é ‘ r . bi on life policies 2 ‘i f ‘i ‘§ é 3 . 152 on marine policies 5 BiB! cde) oa 5 i 153 INTERPLEADER, jurisdiction as to . ‘ « ‘ ‘ ‘ ‘ . 610 to 619 in what cases in equity ¢ 8 3 a ‘ ‘ ‘ . 611 remedy at law had a narrow range - : : : . . 610 where relief at law, none in equity ite cae ee . 612 grounds of relief inequity . . oe # « « BI not necessary that titles of both distant should be legal . . 614 not necessary that suit should have beencommenced . . . 615 where adverse independent titles not derived from the same source party must defend himself atlaw . . . . . .~ 616 agent cannot dispute title of principal . , s : ; . 617 INDEX. 543 INTERPLEADER— continued. where equity will give tenant relief 4 s ‘i . 618 sheriff cannot file bill of interpleader . 3 ‘ j 5 - 619 INVENTIONS, PATENT FOR, violations of, when restrained x r . - * ¥ -» 694 (See INsUNcTION. ) J. JOINT CONTRACTS, when held joint and several a F ‘ : 7 - 114, 115 when in equity held joint and several . ‘ : ; « 114,115 in cases of joint loans ‘ z i ‘ é 4 . 4114 in cases of partnership . ‘ ‘ ‘ : 5 s - 116 equity will not reform against a Bak » iz JOINT TENANTS, accounts between, cognizable in equity : ; ‘ : . 333 eontribution between . é 376 JURISDICTION OF COURTS OF EQUITY, difficult to ascertain its origin ‘ . F 19, 20 in full operation during the reign of Richa TE. : 2 21 received an impulse from the invention of the writ of subpeena . 21 opposed unsuccessfully by the Commons ¢ 7 21 light thrown on its origin by the commissioners of public rece, 22 mistake in supposing it arose from uses and trusts é ‘ 23 grew out of assaults, trespasses, and outrages not cognizable at ee 23 introduction of uses and trusts gave new activity to it ‘ ‘ 23 4h gel jurisdiction exercised by the court in this Province. . 24 to 28 7 general view of E : : i - « 29 to 55 over three things, siti ie Coke s ‘i 30 is not lost by courts,of law now entertaining suits which Brey ie: merly rejected e * 7 ‘ i . ‘ 48 divided into concurrent, exclusive, maa siiliaty j Z 3 53 origin of this Fi 5 a 3 ‘ j é i 54 divided into two branches : ‘i : ‘ . 55 1st, founded on the subject-matter . ‘ ‘ - 55 2nd, founded on the peculiar remedies of anniits - ‘ 55 L. LACHES, discountenanced in equity a 3 , F § ‘ i 3 44 when a bar in equity : . 5 . 729, 1243, 1250 in cases of specific performance of heats 5 * ‘ . 582 (See SPECIFIC PERFORMANCE.) LAND, when deeemed money, or money land. Z é 2 = - 991, 992 LANDS, charged with debts and when not oe eee + 403 to 407 LAPSE OF TIME, ‘ when a bar in equity ‘ Z ‘ ‘ . . 44, 1243, 1249 LATERAL SUPPORT, right of adjoining owner to . 3 és ‘ 2 ‘ . 690 544 INDEX. LAW, IGNORANCE OF, relief in cases of ‘ ‘ ‘ ‘ ‘ ‘ i ; - 8 to (See Mistake.) LEGACIES, jurisdiction asto . . . : . ‘ . s - 435 to 449 fraud in the prevention of . i 7 as ws ep BI when legatees will be compelled to refund . ‘ ‘ j 72, 428 -when revoked under mistake . 3 r i 7 - « 129 ‘ where a false reason is givenfor . A . . . i . 129 executor held in equity as trustee for legatee i 2 ~ 435 no suit will lie for, at law, unless executor has assented to there » 435 cases where the jurisdiction of equity is exclusive ‘ % > «436 beneficial operation of jurisdiction in equity 2 437 when an inventory will be decreed to a legatee of chattels i in veraainiee 438 legacies when vested, and when mere expectancy e . 489, 440 legacy, general, specific, or demonstrative . ‘ . ‘ . 441 definition of general legacy . ‘ : 4 ‘i : ‘ . 441 of specific legacy . a ‘ Re @ * . 441 of demonstrative legacy . : ‘ , - 441 important to distinguish these from one snotlhes 5 ‘i 5 . 442 general legacy liable to abate ‘ ‘ i . e ‘ . 442 specific legacy is not es a : é . . . . 442 when demonstrative must abate . 7 r : 7 F . 442 interest payable from time when legacy due 3 i . 443 general legacy from parent to child bears interest from death . 444 legacy presumed payable in currency of country where testator resided 445 donations mortis causa, what they are . A : . 4 . 446 differ from legacy in three respects 3 j ‘ ; ‘ . 447 differ from gift inter vivos .. - “ - oe . 447 what can passby . < : , . ‘ . 448 what is necessary to give on effect a s 449 words precatory or recommendatory, when cphieriedl és fe: ia cies or not : . uy : e ae ee - 914 to 920 cumulative or not ‘ ‘ ey 2 . ‘ - 976, 977 satisfaction of, when ‘ ‘ ‘ s - ‘ 968, 964, 976, 982 ademption of, when ‘ z - 3 3 S ‘ . 966, 971 matter of intention a : ‘ 7 A - 981 (See amiamerroms) LEGATEES, how and when they may be compelled torefund . . see Sl ND general names of relations, how construed . ji : - 905 to 909 rights of residuary legatees as to lapsed legacies - » « 910 LETTERS, injunction to prevent publication of fs Se. 38 oe 6 700 LIEN. (See Impuiep Trusts.) jurisdiction in cases of . . ‘ i . a * ; . 377 definition of . : é * ‘ 5 ‘ . 877, 1032 sustained in equity, when a ee at ive i ‘ . 878, 1034, 1035 equity follows the law in enforcing liens a 4 A. ee can OBE sale usual mode ofenforcing . . . . . «© « « 1085 of vendor for purchase-money c * «= «© w « «¢ 1086 principle on which established ‘ - ‘i ‘ . * . 1037 INDEX. BAG LIEN —continued. where purchase-money unpaid, onus of proving no lien on purchaser 1038 how lost or waived . : : ‘ . ‘i z ‘ » ‘1039 against whom it exists . : . 1040 solicitor for trust estate has no Heme on deeds 0 or fund i in sia - 1041 LIMITATIONS, STATUTES OF, equity acts upon them by analogy eR ce eB operation of statutes of, in case of mortgages ; . . 840 to 843 LIS PENDENS, is notice to purchasers. 7 * 4 ; oe Ge SBIR BIS LOST BONDS. : a te see ee BD to 4 (See Bons.) LOST INSTRUMENTS... e se ee BD to 64 (See AcorpEnt.) LOST NOTES e So~ ie hee to Tad Gel en et. a, od 63, 64 (See Promissory Nortzs.) LUNATIOS,. (See Ipiots anp Lunatics.) M. .MAINTENANCE OF INFANTS, jurisdiction for de Bt NE 1125 to 1128 MAINTENANCE OF WIFE. (See Atimony.) MAINTENANCE AND CHAMPERTY. . . : - « . 878, 879 assignment, when void for . 2 . ‘ er Bh. as - 880 MANUSCRIPTS, injunction to prevent the publication of : » 701 MARINERS, relief of, in equity, against fraud . : ° eo ‘ . 256 MARKS AND LABELS, FALSE IMITATIONS OF, injunction lies to prevent F . . . : 3 . 707 to 710 MARITAL RIGHTS, of husband, fraudon . oo ce ‘ - - , - « Ig9l MARRIAGE, brokage contracts, void . . : . - 186 incapable of iunmaaeinie . . - - 186 contracts for benefit in promoting i ‘ i - 187 cases of concealment and misrepresentation in Sand rs ‘i - 188 where a secret settlement or conveyance is made by a woman in contemplation of . * . - 191 reciprocal engagement between man er woman oad... » + 193 when deferred to afuture period . ‘ . é é i - 193 contracts and conditions in restraint of, void. . . . 194, 195 where conditions are reasonable they are not void. 7 . 194, 195 distinctions between precedent and subsequent conditions . 196 to 204 conditions as to widowhood . : 7 ‘ . - 202 where bequest over, in default of compliance with the sedition . 196 distinction between conditions annexed to real and to personal estate oe os a ee a Se te, a) OT 546 MARRIAGE SETTLEMENTS AND ARTICLES, INDEX. jurisdiction as to - 783 to 797 how construed in equity Fi : 7 ‘ . 783 executory articles, how construed . z . - + 784 marriage articles, in whose favour executed or —s . 785, 789, 790 distinction between executory trusts under articles and under wills. 0. ‘ + «+ 786, 787 instrument complete at a gonteeinnee frost in equity as execu- aoe inducements held out by porant ‘equity will compel ghee i to be made good ‘ : x : F i » 791 post nuptial contracts, when wall or sak 2 * z , - 792 estates pour autre vie may be settled is . ‘ . 795 how personal property and terms for years settled 7 796 consideration of marriage will not support settlement by janabecnie if wife implicated in design to defraud creditors. - - 793 doctrine as to rectifying settlements a 6 ‘ ‘ . 794 where construed as giving trustees discretionary Et é ‘ . 797 MARRIED WOMEN, jurisdiction asto i ‘ 1147 to 1197 changes by recent legislation as th libs of . 172, 173, 1148 to 1152 may carry on trade . . « 1149 ~ may insure her own or husband’s life - ‘ 2 ‘ 2 . 1150 may hold stock ‘i é i 7 3 . é : : » 1151 may sue as femme sole. . r : - 1152 husband not liable for wife’s davis, pein ‘ 2 - » 1153 may makeawill . a < Z “1154, 1155, 1156 dying intestate, how property ee - 2 . a . 1157 general scope of Con. Stat. U. C., c. 23 é : 5 1158 husband and wife, how regarded at common law . 1160, 1161, 1162° equity treats them as distinct persons for many purposes. . 1163 centracts between, at law 3 ‘ 3 a , . . 1164, 1165 - how regarded in equity é ‘ A r . ‘ é - 1165 devise to husband for wife, a trust 2 : F f a . 1166 where legacy to wife, paid to husband . - : ‘ a . 1167 wife may become creditor of husband . ‘i 6 7 i - 1168 gifts by husband to wife, atlaw . ‘ 0 fi ‘i . 1169 upheld in equity, when . ‘ ‘ < . 1169, 1170 at law wife could not hold uomeney independent of husband . 71 equity permits hertodoso . . ‘ . . 1171, 1172, 1173 when gifts deemed for separate use ‘ 7 ‘ 1174, 1175, 1176 power over separate property may be qualified . ‘ . 1177 power of appointment reserved to married woman ¥ ‘ . 1179 can by contract bind separate estate . a - . - 1180 nature and extent of liability of separate estate fe debts 1181 to 1184 wife’s equity to a settlement, what ‘i 5 ‘ ‘a ~ « 1185 origin of right a a cae. ‘ 1186 when settlement decreed. . . . . «. |. « | 11897 to what it extends . ’ i 7 i é ‘ 1188 against whom it will beenforced . é ‘ 3 ‘ . 1189, 1190 INDEX. MARRIAGE SETTLEMENTS AND ARTICLES—continued. jurisdiction as to alimony ij é : e die Se what will entitle wife to ‘ ‘ ‘ ° . ‘ amount of, how fixed : F 3 court will not sanction payment of gross sum separation deeds. ' i : 7 a 5 MARSHALLING OF ASSETS (See dosieara games no marshalling in favour of charities . ; 7 % MARSHALLING OF SECURITIES, jurisdiction in cages of in cases of mortgage 547 . « 1192 - 1193, 1194 . 1194 1195 - 1196, 1197 - 408 to 415 416 - 429 to 434 - 429, 839 where mortgage on two estates, an one is Se aati a6 a discharge 430 applicable against and in favour of sureties policy of insurance and mortgage ‘ i 3 i no marshalling to prejudice of third party MAXIMS, GENERAL, IN EQUITY, equity will not suffer a wrong without a remedy cases to which the maxim does not apply equity follows the law various illustrations of this maxim equity acts by analogy to law are . ‘ liable to exceptions ; x # where there is equal equity, ike liege prevail ‘ : illustrations of this maxim qui prior est in tempore potior est in jure he who seeks equity must do equity illustrations of this maxim : a suitor must come with clean hands ¢ vigilantibus non dorinientibus equitas subvenit equality is equity illustrations of this maxim : equity looks upon that as done which cist i be dade. meaning and application of this maxim ‘ MISREPRESENTATION, what it is, and relief in cases of (See Fravp, AcTUAL-) fraudulent in case of marriage + MISTAKE, jurisdiction in cases of aN: uch : ‘ . principles on which exercised : what it is 7 . in matters of law 7 - . A ‘| ignorantia juris haud excusat illustrations of this maxim : 3 ‘ , not of universal application ‘ 7 agreements entered into under a saiielee of law ‘ & “s « mutual mistake of law mistake of law must be material . . ie of law, not a ground of reforming a deed . ‘ 431, 432 433 434 33 33 34 35 ‘ » 35 ee 36 - 3&7 a 37 38 to 40 ~ 41 41, 42 » 43 44 45 45 46 46 - 139 to 148 - 188 87 to 132 132 87 88 to 92 . 88 89 90 90, 91 92 92 89 548 INDEX. MISTAKE—continued. where a party acts under ignorance of his title . « 91 where a compromise of'right is made in ignorance of a rule of law 94 or is made in a case of doubtful rights ‘ : . ze 94 in the construction of a will . ‘i 5 ‘ 93 of a plain rule of law, presumptive of ‘penton, surprise, &c. 91, 92 family compromises supported upon principles of policy » 96, 97 where surprise is mixed up with mistake 7 5 3 ‘ 91 jurisdiction over mistake in fact more liberally exercised . 99 mistake of fact, what is : : Fi . ‘ » 99 ignorance of material facts, volleyalile 4 in aqiaits ‘ 3 » 100 " the facts must be material noe . . 101 where the parties are innocent, and no presemption of fraud . 102 a party not relievable unless he uses due diligence to ascertain the facts 103° where facts are known to one party and not to another 105, 107, 108 where there is no legal obligation to communiéate the facts . 108 where the means of information are open to both parties - 108 no difference that subject-matter liable to contingency . . 108 may be of one party only, or of both % . 104 written agreement not avoided by party showing he pita aeeiaT it 105 specific performance may be refused on ground of » « « 106 money paid under mistake of fact Es : 3 . . - 109 in written agreements, when reformed . “ » 110, 111, 112 parol evidence, when admitted . 7 : . . » * Dil necessary proofs to make out the mistake ‘ 3 . L113 relief when mistake fairly implied from nature of transaction . 114 relief when mistake is only implied . ; é i . 114 as where joint loan of money, bond made joint and several 14, 115 no reform of a joint bond against a surety : ‘ . Ww Crown may show that mistaken in grant ‘ ‘ ‘ - 123 where an instrument has been cancelled . ‘ 3 7 . 124 mistakes in settlements . a a ee a) mistakes in wills . . . . : oe me +8 125 to 129 when relief is given ‘ . ‘ ‘ é - 127 must be clear and speech on the _ 6% é ‘ 125 to 129 errors in legacies . i 2 3 . . 128, 129 where a legacy is revoked wities a mista Se a. where a false reason is given for a ane ; » « « 129 election under : : . . 3 . . 130 diligence in seeking relief necessary. : - 131 where money is spent upon another’s estate Sisonsh scigtntee of title 287 MONEY, when deemed land or land money. . r 2 : . 991, 992 when ordered to be paid into court . . 7 : é . 635 MORAL TURPITUDE,. ‘ contracts founded on, are void . 7 ‘ 3 8 - 213 MORTGAGES, jurisdiction as to . é ‘ A ‘ ‘ 7 . 807 to 854 no existence while feudal syeveiti prevailed . . . . . 808 matureof. 6 we ee eee BOF, MORTGAGES— continued. INDEX. 549 nature and effect of, atlaw . 809, 810 nature and effect of, in equity 811, 812 equity of redemption, nature of , 3 813, 814 estate of mortgagee in equity . A ; 814, 815 rights of mortgagee ‘ < 5 » 816 mortgagee in possession, cease how ines ‘i 816, 817 allowances to him . , : - 818 rights of mortgagor : : . ‘ - 820 if mortgagee give notice to tenant to pay rent to iia he becomes responsible to mortgagor for loss. . : 816 purchaser of fee-simple may insist upon keeping nea on n fot 819 what constitutes a mortgage . ‘ : ‘ , 821, 822 contract for repurchase . : ‘ 2 : . - 822 assignee takes subject to all equities . é . 823 equity of redemption inseparable from a mortgage 824 once a mortgage always a mortgage 825 implied or equitable mortgages . 826 since Registry Act invalid against veplntened conveyance 827 what property may be mortgaged . : 828 who may make a mortgage 829 equity of redemption an estate in the tea 831 mortgagee cannot sue when he cannot reconvey . - 832 mortgagee may pursue all his remedies atonce . . 833 foreclosure or saleondefault. ‘.- . . . . - 834 person having assignment of debt only cannot foreclose » 835 powers of sale . 7 . ; . . . a : - 836 effect of these . a bas : . ‘ zi - . 837 in the nature of a trust . : § - ‘ 3 837 where adverse and limited interests, court will Hash . 839 time within which mortgagor may redeem . ; . 840, 841 when mortgagee enters as purchaser of equity of ain pions . 842 time within which mortgagee may enforce payment 843 mortgagor cannot redeem before appointed time 844 to secure future advances how far binding . 845 where mortgagee bound to make further advances 846 tacking abolished by Registry Act - ‘ 304, 847 when mortgagee entitled to have insurance money applied in rebuilding . : : : ee” mortgagee insuring for his own Menetit i j difference between mortgage and pledge ‘ ‘ F mortgage of personal property mortgage when extinguished . rule as to merger MORTMAIN , STATUTES OF ok Sk oa: tel oh ae what devises are void since Statute 4 gift to improve land already in mortmain, valid . MULTIPLICITY OF SUITS, prevention of, a ground of jurisdiction . . 848 . 848 . 849 to 852 - 850 853, 854 854 . TH 772, 773 174 49 550 INDEX. MUTUAL ACCOUNTS, jurisdiction in cases of 334 (See Sut OFF. } N. NE EXEAT REGNO, WRIT OF, (See ARREST, WRIT OF.) NEGLIGENCE, gross, where accident arises from, no relief 82 NEXT OF KIN, who in a will are or may be deemed 909 NON COMPOTES MENTIS... 162 (See IDIoTs aND fonanies: ) NOTES LOST, (See Promissory Notes.) NOTICE, actual and positive, implied and constructive 312 definition of . 2 : a 312 illustrations of constructive siolieu 313 possession not notice against a registered title 314 at what time notice of equity must be received 315 what circumstances put a person on enquiry . 316 certificate of lis pendens now necessary . 318 decree when notice . 319 where knowledge is brought jugs fe an agent or siteeries 320 it must be notice in the present business i a ‘ : - 3820 effect of a bona fide purchase for valuable consideration . 299, et seg. of assignment to secure priority 877 NUISANCES, remedy in equity | . 680 to 689 public . 7 5 . 681 to 684 private . 685 to 689 0. OATH, of defendant required in equity 17 OFFICERS OF COURTS, when courts of equity prevent suits by them : 662 when courts of equity interfere to protect them . 5 663 P. PARENT AND CHILD, contracts between . 221 to 223 PARENTAL POWER, as to infant children : 5 ‘ é 1117, 1118, 1119 when child may be removed from pisent , < 1117, 1118, 1119 PAROL CONTRACTS, when specifically enforced in equity « 564 to 579 (See Spxoiric PERFORMANCE.) INDEX, 551 PAROL EVIDENCE, when admissible to vary a written agreement ‘i . . lit admissible to correct a mistake ‘i é . : « ALT when admissible in case of wills. : ‘ ‘ . 125 PARTICEPS CRIMINIS, relief where parties are (See Fravp, Goxsreniend ‘ + + 216, 217, 218 PARTITION, jurisdiction in cases of . ‘ H : ‘ - . 474 to 480 erigin and history of the jurisdiction . ‘ 3 : : » 474 ordinarily a matter of right ; . i » 475 equitable rights and claims have to be adjusted . «oe 46 relief administered so as best to accommodate parties . % . 476 equity has regard to legal and equitable rights of all parties . ATT power of equity to decree a pecuniary compensation to one of the parties . 3 « 478 not necessary to give infant ie to “ieee cause. i . . 479 costs how borne n ‘ ‘ « 480 compensation decreed for feapravernenty on the setats re 26:1 where there are divers parcels of land, different estates will be allotted to each party 3 : 5 ‘ 3 ‘ ‘ » 478 PARTNERS, accounts between . ‘ ‘ ‘ : 3 ‘ 7 . 3833 contribution between 7 : 7 Z : . . . . 3875 PARTNERSHIP, jurisdiction in cases of . - 3 * : ‘ - 489 to 516 remedies at law between partners, defective ‘ ‘ 4 ‘5 . 489 in equity more complete than atlaw . . . 489 where specific performanee will be decreed of oink ies into 490 | so of other contracts : z . 491 where there is a studied omission of a paviirad 3 name by the firm 491 where one raises money on the credit of the firm contrary to 492 agreement : - 3 . - 492 where one engages in other aatiiee antes to sevebiient : - 492 in case of agreement, on dissolution, as to a partnership book . 492 where an injunction will be granted against a sudden dissolution. 493 injunction to prevent a partner from doing injurious acts. . 494 equity will not interfere in case of agreement to refer disputes to - arbitrators ; q : 3 5 : 0 » 495 how partnership diewsived ‘ ‘ : - 496, 497, 498 when a dissolution will be granted as on alist grounds . 499, 500 insanity of one partner when ground of dissolution . ‘ . 501 account will be decreed on dissolution . $ . 3 7 . 502 receivermay be appointed . . . . «© «© « . 502 not unless dissolution sought . : - - - 7 . 503 account may be decreed though no dissolution 4 7 5 . 504 does not expire for all purposes till affairs wound up. 3 - 505 the real estate of, is treated as personal estate . zs - 506, 507 lien of the partners upon the partnership funds how enforced . 508 preference of the creditors of the firm . a es . - 508 552 INDEX. PARTNERSHIP. ~continued, -where one partner dies, creditors may claim against survivor or against estate of deceased ‘ ‘ . 509 when the representatives of deceased partner wenktiledl i share in profits of business continuing . a ‘ . ‘ . . 4510 contract of, is several as well as joint . . ; * + 116 where an execution at law for es debt is levied on the joint property . a . 512 whether equity will restondn a ‘sale i in wach case iy the sheriff 512 where there are two firms, in which some, but not all, are partners ineach firm . e : 3 . . 513, 514 in equity partner can sue copartner ie money vaaid for firm . 515 how far court will interfere with partnership transactions in a foreign country : A : 5 : ‘i : 3 - 516 PART-OWNERS, accounts between . ‘ ‘ 3 ‘ ji . + 333 contribution between . 3 s : i ; ri . 376 PART-OWNERS OF SHIPS, accounts between . . F ‘ 3 ‘ ‘ ‘ 333 PATENTS FOR INVENTIONS, ‘ injunction against infringing . a ‘ 7 . ; . 694 PAYMENTS, APPROPRIATION OF, (See APPROPRIATION OF PAYMENTS.) PEACH, BILL OF . 3 ‘i ‘ ‘ 3 ee Sa » 642 to 649 nature of . ‘ od ‘ 5 642 whenitlies . . 5 : ‘ + + 643 to 646 what is necessary to itil a petty to maintain . F - 647 perpetual injunction will not be granted against a public rast . 648 cases where further litigation dreaded . ‘ ‘ ‘ . 649 PECULIAR DEFENCES IN EQUITY, lapse of time . ‘ ‘ x x P : . 44, 1243, 1249 laches. 4 ; . . 7 r é . 44, 1243, 1250 ‘i aceount stated . és : 7 . ‘ < 4 : » . 383 purchase without notice . ‘ f é . ‘ . . 299, et seq. PENALTIES AND FORFEITURES, jurisdiction asto . ‘ ‘ ‘ - ‘ ‘ . 1084 to 1110 jurisdiction to relieve against . . 7 ‘ 2 3 . & liability at law ‘ F i . : ‘ j ‘ . 1085 origin of jurisdiction, as to penalties in haps ge, te 1098 doctrine now applied where something to be done other co pay- mentofmoney- . . . . ; » oe ee 1094 test whether relief can or cannot begiven . . 1.7. . 1095 doctrine applied to leases - « 1096 where compensation possible caiity ale divtiueutaines dictmien conditions precedent and subsequent See ee 1087 foundation of relief in equity. . a Se . 1098 relief where party entitled to enforce, acento by ces of other party . : 3 ‘ « 1099, 1100 distinction between paualiten and liquidated divine - . 1101, 1102 be INDEX. 553 PENALTIES AND FORFEITURES—continued. equity never enforces penalty or forfeiture. : » 2 « 1103 distinction between penalties and forfeitures . ‘ ‘ . 1104, 1105 when relief refused against forfeiture for breach of covenant . F . ‘i + + 1106, 1107, 1108 party cannot set up forfeiture ilies Gpntract treated as subsisting 1109 no relief against penalty or forfeiture imposed by Binhite - - 1110 PENDENTE LITE CONVEYANCES, injunctions to prevent . ‘ ‘é . 2 . ‘ $ . 672 PERFORMANCE, SPECIFIC. ... ay ae - . 534 to 599 (See SPECIFIC Puakoceinads ) PERPETUATING TESTIMONY, (See TEstimony, Bint To PERPETUATE.) PERSONAL ESTATE, primary fund for payment of debts oe ee 401, 402 how burden shifted . . Z 3 ‘ . é . - 403, 404 PIRACY OF COPYRIGHTS . ‘ Sa a, pe 3 2 , . 694 to 704 (See InsuNoTION.) PLEDGE, of assets by executor, when it is waste : ‘ ; - . 417 PLEDGE OF PERSONAL PROPERTY, how redeemable 3 F . - ‘ - . : » 850, 851 tacking in case of ° F : r : 3 ‘ ‘ . 852 POLICY, PUBLIC, cases of constructive fraud on account of . 5 ‘ - 186 to 219 (See FRauD, CoNnSTRUCTIVE.) POLICY OF INSURANCE. (See Insurance Poticy.) PORTIONS, when double or not =. Sw wee (965, 970 satisfaction of i F ‘ . Fe : é ‘ . 963, 964 (See SATISFACTION.) POSITIVE FRAUD. (See Fravup, AcTuat.) POSTNUPTIAL CONTRACTS, when valid or not between husband and wife . é . 295, 1165 POSTNUPTIAL SETTLEMENTS, when valid or not : 5 : é : 3 : . 267, 295 POST-OBIT BONDS, definition of . ‘ , . laws a ox ef » 262 relief against, when given . : A a . 262 case of tradesmen’s extravagant pill, dimilae to : r . 263 POWER OF APPOINTMENT, frauds in regard to ‘ : : » : . 7 ‘ . 180 when a trust , ‘ . ‘ . z ‘ . 897, 898 survivorship of joint, when Se . ‘ $ em . 899 coupled with an interest 5 : 7 : 3 F - - 900 donee must show intention to execute @. Seo oe oS & SO0E nature and extent of powers & . . ., + 902, 903, 904 persons to take under general words . 5 . - 905 to 908 defective execution of . ‘ ‘i ‘ ‘ z ‘ ; 93, 74 mistake in the execution of ‘ i ‘ é 73, 74 for what parties defects will be cappited ‘ dy, cae, a 4S OE 554 INDEX. POWER OF APPOINTMENT-~ continued. cases where defects will not be aided 7 . 74 no relief, where statute requisitions are not complied ‘with: : 75 distinction between those created by private parties and by statute 75 cases where the defect will be supplied . z és 3 76, 77 intention to execute must appear . ‘ ‘ ‘ ‘ 78, 901 fraud in cases of illusory appointments i : . « 180 under wills, when construed as trusts ‘ é A . 897, 898 when joint and several . 6 : é é . s . 899 (See WILLS.) PRECEDENTS, their authority in equity . F . ‘ ‘ x : ‘ » 78 PREFERENCES, to creditors, assignment giving, invalid js ‘ . 278, 274, 275 order of, among creditors, legatees, &e. . ¢ * 3 . 3899 (See ADMINISTRATION.) to creditors of a firm against separate creditors . ‘ a 508 PRINCIPAL AND AGENT, their peculiar fiduciary relation . 7 ‘ ‘ . » 281 gifts and purchases from principal sepusininad a 6 - 231 agent cannot be secret vendor or purchaser . é i . 231, 232 when the relation has ceased parties may deal ; q 5 - 233 agent cannot even then use knowledge aquired as agent 2 « 233 cannot deal with principal, unless entire good faith . ‘ . 231 gift to agent valid unless advantage taken . 3 : A - 234 bill for account between . . a - r ‘ . 828, 329, 330 agent must keep accounts ‘ 7 . 330, 331 where agent confounds his property with his ‘ptinsipala . 331,460 PRINCIPAL AND SURETY, their peculiar fiduciary relation . i - j . ay 245 contract imports perfect good faith : ‘ 245 where undue advantage of the surety is taken hy ihe cedar, surety discharged . 5 . «245 where stipulations are made between the sibicibia and caatian . 245 when surety will be discharged in equity . 5 ‘ . 245 to 248 where creditor gives debtor time . : . 248, 251 equity will compel the principal to pay the debt sehen bie : . 249 cannot compel creditor to proceed against debtor . ‘ 3 . 249 will substitute the surety to the place of creditor... 3 . 250 surety cannot purchase up debt. . ; ‘ . ‘ . +232 official bond surety when not released . ‘ . % . 246 must be fraud to release surety . . : ‘ : . . 247 contracts limited by time construed strictly . i» SG ere yet 2202) PRIORITY, among creditors, &c. . ‘ . 397 to 400 how acquired on assignments of ecnitéle henseies by sbi . 877 PROFERT, now dispensed with by courts of law 3 3 - 0 . . 59, 60 PROFITS, apportionment of rents and profits . 4 A ‘ 7 . 349, 350 PROMISSORY NOTES, relief when lost i " ‘ . ‘ ‘ ‘6 ‘ = . 63, 64 U PROMISSORY NOTES --continued. when they are negotiable when not negotiable omission to endorse, by accident IN DEX. 4 PUBLICATION OF De gener ee &e, injunction to prevent PUFFING, of commodities sold, relief i in cases a PURCHASE, PURCHASE-MONEY, APPLICATION OF, in the name of another in the name of a child in the name of a wife by partnership jurisdiction as to when purchaser bound to see ta or mot s general principles of courts of equity in cases of personal estate in cases of real estate . where purchaser is party to a fiaach of tifast: tule now of limited application PURCHASERS, BONA FIDE, WITHOUT N OTICE, protection of, in equity 555 64 65 79 700, 701 208, 209 . 1018, 1019 1020, 1021, 1022 . 1022 . 1023, 1024 1002 to 1011 1003 to 1011 . . 1004 . 1005, 1006 . 1007, 1008 1009 1010 . 299 right to impeach transaction for fraud has no place seat 7 300 purchasing with notice has benefit of want of notice by inter- mediate purchaser in case of forged title plea of, is good against a legal title pendente lite, not protected suit not now notice unless certificate reed Q. QUIA TIMET, BILLS OF RECEIVERS, when and how appointed general nature of receiver, when appointed on . money when paid into court on when jurisdiction applicable . in cases of executors and trustees general rules as to requiring as to present interests as to future interests security, when required on in cases of sureties . when appointed tenants compelled to attorn must get authority from court possession of cannot be disturbed without permission appointment matter of discretion R . . 301 302 308 .. 87 . 4 818 . 620 to 641 xe & 626 620, 624, 629 . 621, 634 . «621 » 623 e635 . 636 687, 638, 639 . «640 . . 641 . 620 to 624 624, 629 . 625 626 . «627 . 628 556 INDEX. RECEIVERS—continued. may be asked against party rightfully in possession. against executors, necessary to show danger . ‘ . where there are incumbrances , . . where tenant for life does not keep doers iinet RECOMMENDATION, WORDS OF, when they create a trust REFORMING CONTRACTS, not on motion or petition conditions annexed to decree . : marriage settlement when rectified REGISTRY ACT, tacking abolished by ‘ object of registration ‘ subsequent purchaser with notice seano Ainim bene of constructive notice will not prevail against first acts did not effect equitable interests incapable of cedistindion 311 630 631 632 633 . 914 to 920 121 122 794 304, 847 . 805 307, 308 309 no equitable lien now as against registered instruments 311 possession not notice against . 314 certificate of lis pendens constructive notice i 318 REMEDIES, two classes in English law. Bei ase . . : 10 often defective in courts of law 3 . 12 different in courts of equity and courts of iw 11 to 17 REMITTANCE FOR BENEFIT OF CREDITOR, when revocable or not 870 RENTS AND PROFITS, where premises are destroyed by fire 80 where express covenant to pay . 80 apportionment of 349, 350 jurisdiction in cases of at Be ce ok . 481 to 488 when equity will interfere ‘ ‘ Z ‘ é 481, 482, 483, 485 principle on which jurisdiction asserted . « 484 stands on questionable grounds 486 does not grant relief beyond analogy to ise z 487 cases of derivative titles under leases 487 the jurisdiction is resolved into matters of counts or a multi- plicity of suits me, Ge 379 in cases of tortious or adverse claims . ‘ . 380 where an original lessee is insolvent, equity will compel the nna lessee to pay the rent 488 RESCISSION OF DEEDS AND INSTRUMENTS, (See CANCELLATION. ) RESTRAINT OF MARRIAGE, contracts and conditions when void or not. * 192, 194, 195, 202 RESTRAINT OF TRADE, contracts in special ine fin ee, oS « 205 RESULTING TRUST, (See Impiiep Trust.) INDEX. 557 REVERSIONERS AND REMAINDER-MEN, fraud or catching bargains 7 ; + 136, 259 where the transactions with, are avidin by the person in loco parentis . f : . 260 apportionment of srieailindtings between them ‘sia Kenan fie life 357 may have deeds secured . we vn lg URS a Ae lay 80 REVOCATION, of a legacy by mistake, remedied in equity . : : dl . 129 REVOCATION OF VOLUNTARY TRUSTS, when good . 857, 875 RULES, GENERAL, in equity . pi ‘ ‘ ‘ - 3 - 48 to 52 8. SALE of assets by cxecutor, when valid or not. : : 2 . 417, 419 SALE OF LANDS, to pay debts. ‘ ‘ ‘ : é . 893, 894 to execute trusts under wills é , é ‘ : . » 895 trusts for, by whom to be executed . p a. oe : . 895 by whom power to sell to be executed ‘ - 893, 895 SATISFACTION, jurieeiobion asto. ‘ , ; , ‘i . 958 to 990 what it is‘ = = ‘ : : é : . 958 what raises a anedton of . é 3 : i : ‘ é . 958 matter of presumption . ‘ : ‘ 4 P . 958 may be rebutted . é é ‘ 4 3 4 . 959, 968, 973 when does not arise . ‘ z : ‘ . ‘ : 3 » 969 in cases gusdem generis . i ; ‘ . 960, 961 distinction between satisfaction ina pavtivinanes : j . 962 rule as to satisfaction or ademption of alegacy . 3 - 963, 965 presumption against double portions . A : . 965, 970 when gift, not ademption . ‘ ‘ ‘ . 966, 971 legacy, when adeemed by selleaent - +. « 967, 969, 975 rule as to satisfaction of a portion by alegacy . 972 when provision by settlement satisfaction of a previous eelilacnanit 974 second legacy, when substitutional and when accumulative . . 976 when legacies by different testamentary instruments . 977, 978, 979 where two legacies of equal amount by same instrument, one only isgood . 3 ij 5 . . . a . 980 intention of testator — govern . . ‘ : ‘ : - 981 when parol evidence is admissible . ‘ ‘ i ‘ ‘ - 982 of debts by legacies to creditors, when . . : - 983, 984 when not . s * ‘ : ‘i - ‘ . 985 to 990 SAW LOGS, specific delivery of . oat Ge ee. aS + « « 548 SEAMEN Sig. as oe i a. 960 (See Manrners. ) SECRETS OF TRADE, injunction to prevent disclosure of. . . se ee F716 558 INDEX. SECURITIES, 1 marshalling and priorities of . ‘ 5 2 ‘ ¥ . 429 to 434 (See MARSHALLING SECURITIES. ) SEPARATE ESTATE OF WIFE. (Sce MarrizeD Women.) SET-OFF SETTLED ACCOUNT, : ‘ , A is ‘ ‘ : eo - 835 to 340 at law ‘ 3 a . 5 : . , 2 - 335 equity jurisdiction in case of 4 : . ei : . . - 3837 of mutual debts and credits . a P . 9834, 336, 337 equitable debts a Z : . . - 338 mere existence of cross shine iia vitae ‘ : : . 3838 when cross demands set-off . ‘ : . i . 339 not of joint debts against separate . 3: ; i . 840 unless special circumstances . f é ‘ ‘ ‘ . 840 when it will:be opened i, A . é ‘ 2 ‘: . 383 court unwilling to open . . a . 388 SETTLEMENT. (See MARRIAGE Sunnie J AND Makara Woe SOLICITOR AND CLIENT. (See Artorngy anD CLIENT.) SPECIFIC DELIVERY OF CHATTELS 3 : r ‘ . 552 to 555 (See DELIVERY OF CHATTELS AND CHATTELS, Hm OF.) SPECIFIC PERFORMANCE OF CONTRACTS, jurisdiction as to. - q gg — 5 . 534 to 599 compelled in equity . ‘ < ‘ 5 2 ‘ a ‘ . 13 to enter into partnership . . Z . 5 A ei » 490, 543 executory contracts, how treated at law . . . . 2 . 534 remedies in equity different . i . ‘ ‘ é r « 535 form or character of instrument . . és : » ee) (585 substance is what equity regards . : i 5 5 . 535 inadequacy of remedy at law, ground of jurisdiction é 5 . 536 equity in some cases will not decree - ; . ‘i . . 537 will not if act immoral or contrary tolaw . ‘ . 537 questions of what contract specific perfermance will be ae : considered under three heads . 3 A : fs 3 . 538 . Where contract relates to personal acts, not when personal skill or knowledge is involved . A . - 539° not of contracts of hiring and service. A . : » . 540 not to build or repair 541 but will if contract by defendant is do defined ol on his own property when plaintiff has an interest . . 5 ‘ . 542 not of agreement for separation between husband and wife . . 548 nor of agreement to refer to arbitration. . re) when specific performance of an award will be decreed . F . 546 . Where contract relates to personal property, general rule is not to entertain jnrisdiction respecting . : . 5AT rule is subject to exceptions . és : . : : é . 547 relief may be given where damages, no compensation . 547, 548, 549 when of agreement to sell shares. ‘ a ; . ‘ . 550 not of contract to lend or borrow . * 8 ‘6 . . 551 ordinarily not for specific delivery of dhiatsals a ‘ . . 552 INDEX, 559 SPECIFIC PERFORMANCE OF CONTRACTS—continued. unless of peculiar value and importance . wa - 552, 553 other cases where decreed ¥ “ 5 . ‘ . 554 where fiduciary relation exists P 3 5 . 35d 3, Where contract relates to real estate, equity interferes to greater extent . soe. B56 reasons for this - ‘ ‘ i ‘ 557 relief granted under Saeniatanise more various tad in case of chattels. . ee he . - 558 will not permit forms of — to be fetter ofinjustice . . 558 ; enforces contracts where action for damages could not be main- tained ‘ ; ‘ : » 559 relief to party who is waited fairly. a a : 3 ‘ . 559 interference discretionary 3 . 560 contract not enforced when made ee Wise ‘fide sieappashiontiig 561 character of parties as well as nature of transaction looked'at . 562 (1.) Where relief sought on parol contract . ‘ . P : . 363 statute of frauds, provisions of ‘ a‘ . ‘ . ; . 364 courts of equity bound by statute . ‘ ‘ ‘i ‘ : . 565 ~ but interfere in some cases within statute “ . . 565 enforce contract admitted by answer. 5 : ‘ - 566 no relief where answer insists upon statute. F ‘ . 567 contracts enforced when part performance. d ‘ is - 568 what is deemed part pertormance , i ‘ m . . -» 569 part payment not part performance ‘ . 569, 570 acts of performance must be done solely with view to seeceanait 571 what acts are not part performance ‘ 5 : é r - 571 mere possession not part performance . : é . . 572 contract must be definite and unequivocal in all its a % . 573 subsequent marriage not part performance . r ‘ é . 574 but representations prior to the marriage may be binding . . 54 when prior promise not binding. : : - » 575 when statute not complied with by fraud of defendang , ‘ - 576 (2.) Where relief sought on written contract terms must be clearly ascertained ‘ é - 577 distinction between plaintiff aeelins al leestasak sunieding spe- cific performance . ‘ » BYs less strength of case necessary ie put sian is nisin suit - 578 when refused, party left to remedy atlaw . : : - 578 defendant may resist by evidence which plaintiff could si6 use : 579 when relief sought on written agreement it will not be given with variations or additions 7 5 : . « 580 exceptions to the rule] . ‘5 : j ‘ 7 - 580 defendant setting up variations, [court may aoa speebe per- formance as varied . a 5 F 3 C 581 party seeking relief must show he is er in default ‘ : . 582 where no gross negligence, relief given though not strict com- pliance ‘ 5 ‘ ‘ 5 é 583, 585. time not generally of the essence of the — 3 ‘ : . 584 560 INDEX. SPECIFIC PERFORMANCE OF CONTRACTS—continued. when court will relieve vendor 3 é é e 2 j . 586 when delay on account of state of title . . . F - « 586 rule as to time where mere election to purchase on conditions given 587 where vendor cannot complete purchaser may have what vendor can give a 588, 589 court may decree specific seeataernine of cuithen late ae of trust... ‘ : ‘ : 590 where decreed, decreed Sycbwedi all ‘distenlns ae ecina parties . . . » « « B91 purchaser with "eunateline of prior doabesel affected by equities . 591 after sale, vendor trustee of land for purchaser, ee trustee of money for vendor . is 3 - 592, 594 equity treats agreement as if specifically Sieoutsals . . 593 heir of purchaser cannot insist upon purchase-money being pei out of personal estate ae . - . 594 unpaid purchase-money is on vendor’s death personal sata . 595 specific performance of negative contract . se «696 jurisdiction now enlarged by statute . 3 ‘ 597 damages may be given as substitution for, or in addition to speci- fic performance. . 7 ; 597 can be given only where jusiedistion to dscase apstific tiara 598 may be given for non-performance of part . ¥ * « 599 contract inconsistent with law and policy of country not ati 733 STATED ACCOUNT, whatitis 6 wwe ee 888, 886 acquiesence in . . 7 . F 3 ‘i ; 2 . . 887 STATUTE OF FRAUDS . 7 3 3 . . ‘ 5 . 254, 564 to 569 (See Fraups, STATUTE oF.) STATUTE OF LIMITATIONS : ‘ : - » 85, 840 to 843 (See LiMIvTaTIons, oe OF.) as OF MORTMAIN, 7 ‘i i ‘ : a . TTL to 774 (See Mortmain, Seat gead OF.) “STATUTES, 13th Eliz. as to creditors ea 5 e , ‘ . 264, 269 27th Eliz. as to purchasers. . ‘ : ‘i ‘i . ~ 298 SUITS, MULTIPLICITY OF . 2 5 Bs Je i ‘ ‘ » « 49 (See Muttipticiry or Surts.) SURCHARGE AND FALSIFY, meaning of these terms . ‘ 5 3 ‘ . ‘ . 385 SURETTIES, bond not reformed against . : . é . i released, when bond not signed by all pasticn S| te ise . 118 concealment of factsfrom . é ; i 5 . 154, 155, 245 neglect of creditor to pursue claim ‘ r - 248 contracts of suretyship limited by time, ooviatened strictly ~ « 252 when discharged by conduct of creditor ‘ , A = «a 1248 contribution between . ‘ . r F ‘ . 865 to 373 grounds of relief in cases of contseation ee ww 885 does not stand upon contract . ‘ ‘ . 865 applies whether parties bound by same or different jnteteitenits . 366 INDEX. 561 SURETIES—toniinued. cases, where relief is more complete in equity than at law . . 3867 where an account and discovery are wanted 5 - 367 where there are numerous parties i in interest ie - 867 where remedy at lawisinadequate . 4 . . 867 where one surety is insolvent and another pays fie debt . 367 where one dies, and the surviving surety pays the whole debt 367 where there are distinct bonds with different penalties, and a surety upon one pays the whole . 4 " ‘i . 368 where there are counter-equities between them . 3 . 3869 where a second bond is subsidiary toanother . 7 . 370 accommodation endorsers are co-sureties ‘ ‘ . 5 . 371 liability of firm endorsing in partnership name ‘ : . 9871 where creditor varies the contract, surety discharged . . 372 surety entitled on paying the debt to the securities “ - 250, 373 marshalling of securities . : A 3 - 481, 432 (See MarSHALLING OF Guciumee SURPRISE, its meaning as used in courts of‘equity . : 5 6 J . 7 where presumptive of fraud . . . . .wteti<( est‘CST T. TACKING, abolished by Registry Act : ‘ 3 : : . 804, 847 TERMS FOR YEARS, jurisdiction asto . é . ‘ ‘ fs ‘ a . 798 to 806 how they originated , ‘ 5 é “ 2 ‘ 798 nature of . e 5 ‘ 7 SE 98, 799 at law the possession of the ines is possession of owner of freehold . tm é ‘ é 5 5 , . 800 how they follow the ihheritanos ‘i soe 5 ‘ - 800 to 805 legal interest remains distinct 3 5‘ 2 . 801 when charges are primarily on such terms, sul ihe san é - 806 TESTIMONY, BILL TO PERPETUATE, , jurisdiction asto . . 0. we eS«889 to 1242 object of . ‘ - . ‘i ‘ - é é ‘ . 1239 open to great-objection . c 4 3 ‘ * ‘ . 1240 will,not lie if matter can be litigated now. ‘ é . 1241, 1242 TIME, LAPSE OF, how it affects equitabledemands .. ‘ : 35, 44 when of the essence of the contract 5 ‘ < 3 5 . 584 no bar in case of charitable trusts . ‘ I 7 . . 780 TRADE, RESTRAINT OF, contracts in general restraint void . : 2 ‘ : . 205 in special restraint of, not void . , r . 205 TRADE-MARKS, fraudulent, assuming trade-marks of another . 706, 707, 708 relief by injunction ‘ = ‘ : : ; . 707 to 710 TRUSTEE AND CESTUI QUE TRUST, trustee must use best exertions for benefit of cestui que trust - 237 any personal benefit moves to trust ‘ é - ‘ . . 237 may now receive remuneration . : . : . . 287, note trustee may purchase trust estate . . - = = 3 - 238 6 462 INDEX. TRUSTEE AND CESTUI QUE TRUST—continued. must be full aiscsosure . 3 : @ . - 238 not necessary to show his bargain ts be silvabnreons ‘i 7 239 trustee cannot deal with himself without knowledge of cestut que trust z : : 239 disability arises tet bore gayi siaeiees but Bes ciitieaton on trustee 7 a . % * * z - 240 principle limited to ating with beast estate . ~ . - 241 does not operate after relation dissolved e 2 s . - 241 cestut que trust may release trustee from liability - ‘ - 242 does not apply ‘to mortgagee and mortgagor . 3 ‘ y s 244 same rule applies to persons in like situations A . ‘i -, 243 compensation to trustees, when allowed + 4 «4 « 287, note e (See Trust.) TRUSTS, jurisdiction as to s 4 i ‘ < 5 - ° . 737 to 762 definition of a trust 5 o « . 787 three things indispensable to eonstinaea a valid feast ~ 7 . 37 Coke’s description of trust a ey ese , - 738 trusts, how introduced . 2) 8 < a we Oe ‘ - 739 statute of uses, why passed. < , ‘ ‘ % 3 - 740 effect of this statute 7 j F » 740, 741 before Statute of Frauds, aay be fhe ised 5 ‘ . 742 statute requires a writing ‘ . ‘ ‘ . “ - 742 what is sufficient . é ‘ ‘i ‘ é 743 trust to be raised, must be on meritorious or wralinaiii sonnel levation 744 different where already created or vested F Be + Ge 3 745 trusts in real estate in many respects governed by same rules as like estates at law . ‘ 2 e 7 . : - ‘ . 746 exceptions to the general rule ‘ ‘ = c . TAT party may alienate trust created for his besiefit oe O48 may be disposed of by operation of law . . . . - 748 person creating trust may prevent this . BR ag 3 = «= 349 trust for separate use of a married woman may be assigned by her 750 analogies of law followed as to remedies, as well as rights and interests . 3 : 7 i - wo se - BL trustee how sued, touching —_ sitet * . -. « 52 is liable if he has given personal covenant . 2 é 5 . 159 maxim ‘trust shall not fail for want of a trustee” : ‘ . 758 powers of trustee exist for benefit of cestui que trust only . . 754 where trustee can sell, bona fide purchaser will hold free of trust . 755 what necessary to enable cestui que trust to follow estate . ee) on what, power which trustee may exercise depends. 5 . 756 trustee may do without suit what he may be compelled to do by a suit. . ee : ae ee em HOT qualifications of this -anawine oe ABT equity carries trusts into effect only oe ik and definite . 758 trusts divided into express and implied . express trusts, what implied trusts, what ce ae RE Se Wy . «159, 761 INDEX. 563 TRUSTS— continued. most usual cases of express trusts . _ és ‘ ‘ . 760 trust created for illegal purpose not enforced - - 5 - 762 may, where illegal purpose has failed 3 ‘ - 762 TRUSTS, IMPLIED. (See Imeiiep Trusts.) U. UNDUE INFLUENCE, relief in cases of - ae ‘ 7 : 4 . 167 USES, CHARITABLE, legacies for, no marshalling of assets for . ‘ ‘i . ? - 78L USES, STATUTE OF = Se eG) 4 Bie ke . « 740, 741 NV: VENDOR, on sale is a trustee for purchaser - 7 ; x ‘ . 592, 594 lien of, for purchase-money . ‘ ‘ ‘i : ‘ - 1036 when his lien is waived, or not x - . i i - 1039 against whom the lien of, exists" . . eg * . . 1040 VOID AND VOIDABLE, what acts capable of"confirmation . . i . . r . 219 VOLUNTARY CONVEYANCES, binding on parties, though void as to others . i ‘ . 265, 297 void against subsequent purchasers : c 2 . 294 mortgagee a purchaser, judgment creditor is a ‘ ‘ rs . 294 even though bona fide 5s . é js js 5 . . 295 subsequent purchase must be bona fide, and for ee ‘i ‘ . 296 not now void merely for want of consideration . . . - 298 (See FraupuLEnt CoNVEYANOES.) VOLUNTARY DEEDS AND CONTRACTS, court will not rectify . a ee ce - . 120 VOLUNTEERS, in cases of defective execution of powers so 2 74 Ww. WARD... . . < % 5 5 eo ae 235, 236—1111 to 1136 (See GUARDIAN AND WaRD AND INFAN?.) WASTE, definition of . F 7 5 - : : - : a: . 673 injunction to prevent : 3 = ‘i - s . 673 to 679 jurisdiction of equity, in casesof . é é Z . 881, 382 bill for account sustained against executor and heir for opening a mine and disposing of the ore ‘ A 3 ‘i . 38L by executors and administrators . yw 8 « # & . 881 WIDOWS, provision for, during widowhood s ‘i ‘ % . 194, 202 WILLS AND TESTAMENTS, . jurisdiction asto . ¥ 3 - : ‘ . 881 to 931. jurisdictign to try validity ae, 2 2 ‘ és ‘ - 881 principles applicable where fraud alleged é : 882 in England ecclesiastical courts had jurisdiction over wills of per- sonalty . ee ‘ . . 3 : : “3 . 88 564 WILLS AND TESTAMENTS —continued. common law courts over wills affecting real estate . 7 . 884 when equity had jurisdiction . ge” Sash, Seg * . 884 mode in which court proceeded ‘ ‘ 3 7 ‘ . 885 to 890 express trusts created by wills ¥ i 0 & 8 ‘ . 891 where no trustee designated . c . . : . 892 where land to be sold, will not saying ig sehen 4 . . 893 executors have power by implication, when . é ‘ 894 where trustees for specified trust, die or refuse to act : . 895 trustees to sell, mortgaging . j i é : . 896 where power of appointment construed a — : . 897, 898 as to exercise of powers by some only, of several ‘i . . 899 where power coupled with an interest . F : - + + 900 in execution of power donee must show intention to execute - 901 as to the nature and extent of powers . 7 . - 902, 903, 904 _persons entitled to take under words of general description . 905 to 908 whether next of kin take per stirpes or per capita . a ‘ 909 rights of residuary legatee as to lapsed legacies é F - 910 executor a trustee for legatees 4 « - 911 words differently construed in wills of real asd pareonal estate . 912 where remainder over on indefinite failure of heirs $ " - 913 in case of leaseholds, void _ - ‘ : - - 913 implied trust from recommendatory ee a é “ ‘ - 914 no particular form of words necessary . < ss 3 . - 915 general rules as to such trusts ‘I 3 . . - 916 words must be such as ought to be construed as immparativs ‘ . 916 subject matter must be certain - ‘ ‘ ‘ ‘ : . 917 the persons to be benefited must be certain | : 3 3 » » 918 no trust where discretionary power ‘ = 919 where trust from recommendatory words, no mewiltiags fewest of property not required ‘ ‘ % ‘ ‘ i - 920 on failure of donee, trust will exercise powers, where . - 921, 922 power court considers party bound to execute x 2 . - 928 doctrine of cy pres applied to wills ‘ - * - 924, 925, 926 construction of wills to effect intention of testator 3 zs 997 as to clauses connected conjunctively being construed disjanstively 928 when money does and does not include ‘‘ stock” . 3 - 929 object of construction is to ascertain intention of testator . . 980 general words construed as limited to matters ejuslem generis . 931 WORDS, different construction of, as to real and personal estate % . 927 to 931 recommendatory and precatory words, how construed . . 914 to 920 WRIT OF ARREST. (See ARREsT, Writ oF.) WRIT OF INJUNCTION. (See Insunctions.) - WRIT OF NE EXEAT REGNO, (See Arrest, Writ oF.) WRITTEN INSTRUMENTS, mistake in, when relieved ; r se 4 - 110, 111, 112 THE END. * Lia ere yt Ake See * iz Ps ce en a ’ > a 5 - ‘ ad a cay .