(EnrtipU ICaui ^rlinnl SJtbrary ilaraliall iEqutty (EoUcrttou (Stft of Ti. 31. MaraljaU. iC.ffi- ill 1394 3 1924 085 504 060 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085504060 PEACTICAL COMPENDIUM OF EQUITY. PRACTICAL COMPENDIUM or EQUITY, ARRANGED AND DIGESTED UNDER THE POLLOWINe TITLES: accxjmulations. Annuities and Rent-Charges. Apportionment. Assets. Charity and Mortmain. Compromises and Family Ar- rangements. Contracts. Conversion. Copyright. Donatio Mortis Causa. Easements. Election. Escheat and Forfeiture. Estates. Executors and Administrators. Fraudulent and Voluntary Conveyances and Settlements. Guardian and Ward, Parent AND Child. Husband and Wipe, Joint Stock Companies. Joint Tenancy and Tenancy in Common. Judgments and Decrees. Landlord and Tenant — Lease. Limitations to Suits. Marriage Settlements. Merger. Mortgages. Partnership. Perpetuities. Powers. Satisfaction. Trusts. Uses. Vendors and Purchasers op Estates. Vesting and Divesting op Estates and Interests. Waste. Wills, WILLIAM WEBSTER WATSON, Esq., OF TRINITY COLLEGE, CAMBRIDGE, M.A., AND OF THE INNER TEMPLE, BARRISTER AT LAW. H. IN TWO VOLUMES. Vol. I. X. S. Dixon, LONDON : SWEET, 3, CHANCERY LANE, ITah) ^oohsclltr mis jJnWisljcr ; C. F. MAXWELL, MELBOURNE. 187.3. (s>'^1)S LONDON : PRINTED BTf u. ROWORTH AND ^ONS, NEWTON STREET, HIGH HOLBORN. PREFACE. In the following pages I have endeavoured to collect and arrange, in a concise and practical form, the Decisions and Statutes on those subjects which chiefly occupy the atten- tion of Courts of Equity. My object has been to place before the Profession a Work, which I hoped might, in some degree, afford such assistance in Equity, as in Common Law practice has been provided by Selwyn's Law of Nisi Prius and Roscoe's Digest of the Law of Evidence — which valuable Works, exceeding the promise of their titles, are compendious digests of general law. Having regard to the practical object of the Work, I have not scrupled to devote a not inconsiderable space, to branches of the Law of Real Property belonging to the domain of Common Law, but less frequently discussed in its Courts than in those of Equity. With the same view I have arranged the Titles in alphabetical order. I should have been unjust to my readers, as well as to myself, if I had not consulted and been much guided VI PEEFACE. by the many excellent treatises, to which they will find frequent references. But while I acknowledge my deep obligations to the distinguished Authors of those Works, I trust it win be seen that, on my part, no labour has been spared in carefolly examining the Reports them- selves. The Book has necessarily been slow in passing through the press, and in the Addenda I have brought down the references to the date of the publication of the June numbers of the Reports, w. w. w. Rolls Chambbes, June, 1873. CONTENTS. Volume I. page Preface . . V Names of Cases ix Editions of Works referred to cix Table of Statutes cxi Addenda et Corrigenda . cxxi Titles — Accumulations 1 Annuities and Rent-Charges 8 Apportionment . 20 Assets . . . . . . . 27 Charity and Mortmain . 39 Compromises and Family Arrangements . 59 Contracts . 64 Conversion . 99 Copyright . . . . . . . 118 Donatio Mortis Causa . . . . . . . 127 Easements . 130 Election . . . . . 156 Escheat and Forfeiture . 166 Estates . 173 Executors and Administrators . 231 Fraudulent and Voluntary Conveyances and Settle ments . 269 Guardian and Ward and Parent and Child . . . 294 Husband and Wife . . . . . 306 Joint Stock Companies . 392 Joint Tenancy and Tenancy in Common . . . 451 CONTENTS. Titles — continued. PAGE Judgments and Decrees . . . . . • • • 463 Landlord and Tenant — Lease . . . . • . 474 Limitations to Suits . . . . . . . . . . 513 Marriage Settlements . . . . . . . . • . 548 Merger.. .. .. .. 619 Mortgages . . . . . . . . . . . . 625 Volume II. Partnership . . . . . . . . . . . . 705 Perpetuities 748 Powers 757 Satisfaction . . . . . . . . . . . . 846 Trusts 858 Uses 921 Vendors and Purchasers of Estates .. .. ..931 Vesting and Divesting of Estates and Interests . . 1091 Waste 1153 Wills 1161 INDEX 1339 TABLE OF CASES CITED. A. PAGE Aaron t). Aaron ., ,, 1174 Abadam V. Abadam ,. ,, 12 AbbisD. Winter .. .. 244 Abbot K. Stratton .. 625,981 w. Sworder .. .. 1033 Abbott t). Middleton . . .. 1217 Abdey «. Gordon .. .. 161 Abel V. Heathcote . . . . 795 Abell, Ex parte .. .. 744 Aberaman Ironworks v. Wickens .. .. 974,1027 Abercorn's (Marq.), case .. 402 Aberdeen Eail. Co. v. Blaikie 425 Abergavenny (E.) v. Brace Add. 525 Abernethy v. Hutchinson Abraham v. Alman . . V. Newcombe 122 365 1273 1289 436 1245 Abrams v. Winshup . . Abrey v. Newman . . Accidental, &c. Co., Ee Acey J). Simpson Acherley J). Vernon 100,1106,1255 D.Wheeler .. .. 1255 Ackerman ». Burrows . . 456 Ackland f> Gravener . . .• 675 V. Lutley . . . . 493 ». Pring .. ..881 Ackroyd v. Smith . . . • 502 r- ». Smithson .. 110,869 Ackworth v. Ackworth . . 850 Acocks V. Phillips . . . . 506 A'Court V. Cross . . . • 546 Acraman i>. Corbett .. •• 271 Acton V. Acton . . 1237, 1245 «. Blundell .. ..149 W.Pierce .. .. 551 «. White .. ..382 V. Woodgate . . 893, 894 Adair v. Shaw.. 233, 248, 256, 264 Adames v. Hallett . . 270, 281 Adams, Ex parte . . . > 745 , Goods of .. .. 1171 D.Adams 802,803,837,1262 W. Adams v. Barry e. Broke V. Claxton «. Clifton «. Gamble V. Jones v. Lavender V. Peirce 1). Robarts V. Savage V. Scott 1). Sworder V. Taunton 1'. Weare Adams"s case .. Adamson v. Armitage Addams v. Ferick Addecott v. Addecott Adderley v. Chevering Addis V. Knight Addison v. Cox Addison's case Adey v. Arnold Adlington v. Cann Adnam v. Cole . . Adsetts 1). Hives Adshead v. Willetts Affleck V. Affleck V. James Agace, Ex parte Agar V. Fairfax V. Macklew Agnew I). Pope Agra Bank, Ex parte Aguilar w. Aguilar Aikman v. Aikman Ainslie v. Harcourt V. Medlyoott Airey «. Hall V. Borham Aislabie v. Rice Akhurst ». Jackson Alabaster's case Albany's case.. PAOE .. 538 .. 796 691, 692 .. 884 .. 378 .. 1215 .. 331 ,. 1247 .. 1099 .. 1330 .. 679 939, 1080 .. 1041 .. 91 Add. 399 14, 375 .. 1237 .. 17 .. 222 .. 721 Add. 651 .. 420 627, 903 .. 862 41, 1202, 1239 .. 629 1220, 1274 .. 815 .. 797 .. 717 .. 460 .. 741 .. 1185 444, 649, 650 346, 362, 380 .. 1165 221, 223 90, 310 . . 284 .. 720 1108, 1146 .. 722 .. 401 .. 770 b Table of Cases cited. Albert Co., Re Alchin's Trusts, Re Alcock D. Connop • V. Sloper PAGE 440, 411, 446 Add. 43' .. 980 .. 115 15 ,516,627,628 .. 148 .37,357,667 .. 389 Alder v. Lawless Alderson ti. White Aldred's case . . Aldrich v. Cooper Aldridge, Ex parte V. Lord Wallscourt 1321 Aldworth v. Robinson . . 666 Alexander, Re . . . . 807 tj.Alexander 766,772,826, 837, 843, 1122, 1290 V. Brame . . . . 49 V. Crosbie. .615, 971, 999, 1017 945 768 762 .. 841 .. 1312 .220,222,589 - tJ.CrystalPalaceR.Co. - V. Mills ■ V. Young . . Aleyn v. Belchier Alger V. Parrott , Allan V. Backhouse V. Gomme 144 II. Gott 1321 Allchin, Goods of .. ..1205 Allday v. Fletcher . . 333, 360 Allen B. Allen .. 207,485 V. Anderson ■. .. 161 D.Anthony .. .. 1060 V. Callow .. .. 1240 ». Dundas .. .. 1008 V. Farthing . . ..1116 u. Knight .. 685,1087 V. Maopherson . . 236 V. Maddock . . 1 1 72, 1 1 74 u. Thorp .. .. 1312 D.Webster .. ..1293 Allen's Estate, Re .. ..1115 AUeyn v. Alleyn . . . . 852 Allfcey B. Allfrey . . . . 726 AUhusen B. Whittell 113,240,1256 Alliance Bank v. Brom B. Kearsley Allison V. Monkwearmouth Alloway v. Alloway • B. Braine 67 716 95 .. 583 95, 1033 Allsop B. Day . . . . , . 645 Allum V. Fryer . . . . 798 Alsager, Ex parte . . . . 662 AlsopB. Bell .. .. 31, 624 B. Ld. Oxford .. ..1006 ■ O.Pine 787 Alston, Ex parte . . . . 689 V. TroUope . . . . 242 Alt B.Alt .. .. 809,551 Alton B. Medlicott .. ., 18 Alves D. Hodgson .. .. 71 PAGE Ambergate,&c.Co.B.Coulthard 431 V. NorclifFe 431 Ambrose v. Ambrose . . Ames B. Mannering . . A mesbury b. Brown . • Amherst's Trusts, Re Amherst v. Leeds (D. of) Amies v. Skillern Amler b. Amler . . Amphlett b. Parke . . Amson v. Harris Ancaster b. Anderson (D.) V. Mayer 871 320 1150 532 -453 105 111 1288 260 33, 1321 Anchor Assurance Co., Re . . 430 Anderson v. Anderson 192, 203, 204, 373, 378, 383, 730, 1170,1192 V. Abbott.. 160,162, 331 B. Dawson 761, 762, 763, 1312 .. 21 289, 290 .. 1000 .. 634 475,482 Add. 225 ..737 . . 441 .. 1302 261, 994, 1036, 1313, 1337 .. 1274 .. 160 527, 1066 .. 415 .. 650 .. 512 212 1256, 1285 - B. Dwyer . . - B. Elsworth . . - B. Higgins . . - B. Kemshead - B. Mid. Rail. Co, - B. Pignet .-. - V. Weston . . Anderson's case Andree v. Ward Andrew v. Andrew - ». Southouse . . • B. Trinity Hall ■ B, Wrigley Andrews, Ex parte B. Bousfield B. Hales V. Hulse -B. Partington Andrew's case.. .. ,. 436 Will, Re .. ..226 Angell B. Dawson . . . . 902 Angelo, Re 700 Angerman B. Ford .. ., 1250 Angersteine. Martin .. 113, 1251 Angier t>. Stannard . . . . 891 Anglesea Coll. Co. . .434, 439, 442 Anglo Austr. Co. v. Br. Prov. Co. 425, 430 Cal. &c, Co., Re . . 409 Greek, &c. Co. 433, 434, 441 Italian Bank, Re . , 956 Annersley b. Ashhurst .. 892 Anon. (3 Atk. 726) .. .. 331 ^ (Cro. Eliz. 9) .. .. 1203 (aFr. 137) .. 1058 (IGiff. 392) .. .. 167 (Jac. 265n) .. .. 302 Table of Cases cited. xi PAGE Anon. (2K. & J.441) ,. 732 (6Madd. 10) .. ..678 (8 Sim. 346) .. ..296 (2 Sim., N. S. 54) . . 299 (l,Vent..293) .. .. 249 (2 Ves., sen. 261) .. 557 ( ib. 359) .. 581 XlSVes. 258) .. .. 32 Ansley v. Bainbridge . . . , 856 Anson (Ld.) v. Hodges 984, 1038 V. Towgood 75, 989, 990 Anstee V. Nelms .. 519,1210 Anstiutber v. Adair . . 364, 568 Antrim (Ld.) v. D. Buckingham 812 AntrobuBD. Smitli ., 280,281 Anworth v. Johnson . . . . 498 Aplin, Re 163 Aplyn V. Brewer . . . . 239 Appleton ». Rowley 317, 320, 1196, 1198 Appreece v. Appreece Arbuthnot v. Norton . Arcedeckne v. Kelk . Archbold v, Soulley . Archdeacon v. Bowes Archer, Goods of V. Hudson - V. Jegon 1233 656 145 522, 527 . 673 . 1178 . 287 . 1130 . 1276 . 502 60, 164 . 1266 . 633 149, 151 1045 775 1287, 1288 Archer's case Arden v. PuUen . . Ardesoife V. Bennet •• Arkell v. Fletcher Arkwright, Ex parte.. V. Gell Armitage v. Askham . . . V. Coates . . rr- V. Williams ArmstrongD.Armstrong 453,455,687 1). Burnett . . . . 432 V. Courtnay . . 505 V. Eldrige 16, 456, 457 D.Lewis .. .. 713 Armytage I). Armytage .. 814 Arnold, Re .. 1095, 1128, 1270 V. Arnold 18, 994, 1163, 1227, 1253 V. Garner .. 679, 885 I). Corp. of Gravesend 936 : V. Hardwiok . . . . 841 V. Kempstead . . 353 ; V. Mayor of Poole . . 86 Arnsby v. Woodward 505, 506 Arrowsmith's Trusts, Ee 1098,1136, 1184, 1260 Arthur, Goods of .. .. 1178 j;. Clarkson . . . . 284 ». Mid. Rail. Co 871 Arundel(Ly.)B. Phipps 279,375,378 PAGE Arundell J). Arundell.. 581,613 B. Philpot . . . . 843 Ascough t). Johnson . . . . 669 Ash K. Ash 1310 Ashburner i;. Maguire .. 1242 Ashbury, Ex parte . . . . 441 V. Thompson . ■ 252 Ashby t). Ashby .. ..332 V. Blackwell . . . . 892 1). Palmer .. 100,107 Ashenhurst t). James .. 669 Ashenhurst's case .. .. 1277 Asher 1). Whitlock .. .. 518 Ashfieldu. Ashfield .. ..485 Ashley t'. Ashley . . . . 753 1). Pocock . . . . 244 Ashley's case . . . . . . 406 Ashling V. Knowles .. .. 1117 Ashmore, Goods of .. .. 1178 Ashmore's Trusts, Re 1118,1123 Ashpital V. Sercombe . . 394 Ashton w. Ashton .. .. 1235 : V. Blackshaw . . . . 670 I). Corrigan •. •• 031 V. Dalton . . 633, 658 V. Jones . . . . 57 V. Langdale . . . . 50 V. M'Dougal 308, 314, 575 V. Scott . . . . 1035 V. Wood 678, 1040, 1041 Ashwell V. Staunton . . • . 658 Ashwell's Will, Re .. .. 540 Ashworth ». Mounsey 679, 968 Asiatic Corp., Re . ■ . . 399 Askham ti. Barker .. .. 813 Aspinall v. Duckworth 1 1 97, 1 1 98 V. L. & N. W. R. Co. 716, 731 1). Pelvin .. ..1270 Astbury, Ex parte . . 643, 644 Astle V. Wright . . . . 723 Astley J). Milles .. 622,624 Aston, Ex parte .. .. 402 ». Aston .. 839,1160 D.Wood .. .. 43 Atcherley v. Du Moulin . . 604 Atcheson v. Atcheson . . 370 Athenaeum Soc. v. Pooley . . 905 Atherton K. Pye .. .. 1317 Atkins D. Hiccocks . . . . 1 142 V. Tredgold . . . . 727 V. Uton . . . . 659 Atkinson ■«. Atkinson .. 1261 D.Baker .. ..207 D. Grey . . . . 36 r^D. Holtby.. 1175,1317 V. Mackreth .. 717 D. Paice .. .. 1272 52 XU Table of Cases cited. PAGE Atkinson u. Smith .• 69,316 )). Turner .. 1111, 1120 Atterbury D. Wallis . . 650,1061 Att.-Gen. u. Acland . . , . 53 «. Alford • . . . 252 1), Andrew.. .. 48 — ^^ V. Aspinal . . . . 42 V. Backhouse .. 1060 t), Bayley .. .. 1304 I). Blizard . . . . 43 V. BlucherdeWahl- statt .. ..1165 •^— 1). Bovill . . . . 44 u. Bowyer . . . . 1260 V. Brackenbury 821, 824 ^^-^— V. Bradford Can. Proprs. .. 154 V. Brandreth . . 44 1). Bright .. ..1290 J). Bristol ( Mayor of) 1530 V. Browne's Hospital 46 ■ V. Brunning 31, 32, 104 ■ V. Bunce .. • V. Bushby . . - V. Caldwell . . - ». Chapman • V. Chester . . ■ V. Christ's Hosp, V. Clack . . . . — ^ — V. Clapham V. Clarendon (E. of) V. Clarke . . «. Clements V. Cock . . . . J). Colney Hatch .. «. Comber.. 11. Crispin . V. Crofts . V. Dangars. V. Davies . ». Day , V, Dillon . V. Dixie ' t). Doughty V, Downing • V. Doyley 45 42 49 246 53 530, 1107 912 45 940 41 308 41 154 41 1103, 1284 168, 663 888, 904 52,53 198, 987 .. 1173 45 . . 147 179,861 44, 781, 1314 ■D.Dudley (Ld.) .. 941 ■ V, Ewelme Hospital 1012, 1079 • ». Fishmongers' Co. 39 - V. Fletcher . . Add. 466 ■ V. Foundling Hosp. 45 • V. Fullerton . . 493 • V. Gaunt • . . . 45 •». Gill .. ,. 1276 ■ V. Glyn . . • V, Goulding 43,57 . 53 PAGE Att.-Gen. «. Graves . . • • 49 V. G. N. R. Co. 429, 431 K. Grote .. 1209,1236 ». Haberdashers' Co. 42 1;. Hall .. .. 52 V. Hamilton 794, 795 V. Hardy . . . . 638 V. Harley 49, 50, 1240 V, Herrick . . . . 43 D. Hinxman .. 53 !). Hodgson .. 52 ». Holbrook .. 1250 V. Holford . . . . 104 !). Hotham .. 480 V. Ironmongers' Co. 42, 43 .. 178 ■ V, Jones • V. Kell - 1). Kingston (Mavor of) .. ■ V. Lawes .. .. - V. Leeds Corporation 44 154 41 150, 155 211 • V. Lewin . . . . ■ ». Liverpool (Mayor of) .. .. -!). LIandaff(Bp. of) - V. Lonsdale 42, 149, 158 - V. Lucas . . . . 308 • V. Magdalen Coll. 45, 529 530, 936 - V. Malkin .. .. - V. Mangles . . - V. Marg. Prof. Cam. ■ t). Marlborough (D. of) .. 1154,1158 .. 141 891 43 201 103 42 ■ V. Matthews ■ ». Mill ■ V. Milner . . ■ V. Moore . . V. Mullay . , • V. Nicholl . . • ». Painters' Co. ■ B. Parkin . . • V. Parnther ■ V. Partington ■ ». Pearson . . ■ t). Potter . . ■ V. Pottinger ■r. Poulden.. .. - V, Ranee - V. Read .. ' V. Robins . . . . ■ V. Rowe • V. St. Cross Hospital ' V. Sands . . . . ■ V. Severne . . . . • V, Sherborne School • V, Simcox .. ., , 48 , 1102 . 53 . 301 , 146 42 I 160 1168 , 330 41, 45 1247 1165 18 43 308 , 1246 1165 46 169 308 44 103 Table oj Cases cited. xiu PAGE Att.-Gen. u. Smith ., .. 103 V. Smythies . . 21 V. Stamford (Mayor of) .. .. 45 V. Stephens 90, 493, 522, 861 ' V. Stepney . ■ . . 41 —^~— t). Stewart . . . . 48 B. Sturge .. ,. 44 V. Tancred . . , . 42, 48 — V. Todd . . . . 41 ». Tomkins . . . . 262 V. Trin. Hall, Cam. 48 V. Un. King. Tel. Co. 155 !). Upton .. .. 1051 V. Vigors 818, 1166, 1167, 1193,1259 V. Wax Chand. Co. Add. 1107 i;. Whorwood 359, 609 — u. Wilkins .. .. 1089 ». Wilkinson .. 821 1). Williams . . 52 D.Wilson .. ..904 II. Wiltshire .. 1227 0. Yelverton .. 1051 )).York(Archbp.).. 46 Attree D. Attree .. .. 1224 Attwateri). Attwater 18, 1122, 1148, 1236, 1271 Attwood t). Alford ti. Small Atwaters o. Birt Atwood V. Maude Aubin V. Holt Aubrey ». Brown A\idsley v, Horn Ault V. Goodrich Austen v. Taylor • ti. Hagley 13,1261 90, 1038, 1039 765,805 ..722 95,713 317,367 .. 1295 725,741 556, 557, 564 .. 304,1143 Auster V. Powell . . . . 265 Austin V. Austin . • . . 296 V. Bank of England . . 860 r. Boys .. 735,736 ■ V. Llewellyn . . . . 525 ■ w. Tawny .. ..942 Austin's case . . . . . . 401 Austr. &c. Co. V. Marzetti . . 74 St. &c. Co. V. Mounsey 420 Avarne v. Brown 969, 998, 1031 Aveline v. Melhuish . . . . 909 Aveling ji. Knipe .. 452,948 Avelyn v. Ward 1109, 1114, 1234 Avern u. Lloyd . . . . 754 Avery v. Griffin . • . . 933 D. Langford .. 81,739 Ayles u.-Cox . . . . 703, 958 Aylett V. Ashton . . 379, 1037 AylifFe u. Murray V. Tracey Aylward b. Kearney Ayres v. Willis Ayscough V. Savage FAQE 885 552 287 158 15 Bacchus v. Gilbee .. .. 1145 Bacha Kett 161 Bachelor v. Middleton . . 663 Back V. Stacey . . . . 146 Backhouse v. Bonomi 151, 152 «). Wells.. ..1298 Bacon V. Bacon .. .. 251 V. Clarke . . 251, 253 V. Clerk . . . . 593 V. Cosby .. ..157 ti. Proctor . . . . fi Badcock, Re 102 Badeley v. Vigurs . . . . 1083 Baden v. Css. Pembroke . . 994 .. 1128 .. 1336 645, 670 .. 770 1237, 1242 .. 593 882, 383 .. 438 .. 102 209, 1154, 1156, 1157, 1324 ». Legge .. .. 1302 V. Oughton 347, 786, 1323 Bagshaw v. E. Un. Kail. Co. . 429 V. Spencer . Badger v, Gregory . . V. Loyd V. Shaw Badham v. Mee Badrick t). Stevens .. Bagenal v. Bagenal . ( Baggett V. Meux Baglan Hall Coll. Co. Bagot, He . • . < V. Bagot Bagshawe, Ex parte Bagster v. Fackerell Bagwell V. Dry Bahia, &c. Co. Bailey, Re . ■ ^— ^— V. Appleyard V. CoUett V. Lloyd V. Macauley V, Richardson 1). Sweeting — — ^ V. Taylor Bailis V. Gale Baillie v. Butterfield 1). Jackson V. M'Kewan Baily v, Boult t). Drew .. Bain v. Fothergill V. Lescher 564, 881 . . 429 .. 112 ., 1258 .. 413 .. 914 .. 142 .. 977 615, 819 .. 393 622, G67, 1059 953 123 1274 1239 1138 634 12 484 1024 1283 XIV Table of Cases cited. Bain «. Sadler Bainbridge v. Cream . . «. Kinnaird I K.-Moss . ■ «.'Smith . . Bainbrigge v. Blair . . Baines d. Lumley Bainton v. Ward Baird's case 437 PAGE 24S 1104 1037 60 808 886 521 35 Baker ti. Baker V. Bradley — V. Dening 1). Farmer 1). Hall . '-v. Hanbury V. Harris V. Martin 17 287, 290, 382 .. 1177 .. 1245 ,. 57,329, 330 .. 1197 ..689 243, 886 • ». Metrop. Rail. Co. . . 943 - V. Monk 290, 1033, 1080 52 .. 749,1306 . . 472 .. 1275,1279 ..535 Add. in . . 235 370 1284 277 1067 .. 299 .. 279 94 .. 1280 .. 303 .. 482 29, 639, 1066 .. 1050 1041, V. Sutton . V. Tucker .^—^— V. Tynte V. Wall V. Wilton Baker's case .. Balchen v. Scott Baldwin v. Baldwin 1). Rogers Bale V. Newton Balfour v. Welland Ball V. Ball . . V. Burnford V. Coggs.. V. Comberbach I'. Coutts V. Cullimore t). Harris V. Hutchens S.Montgomery 312,364,365, 614 ».. Strut' ( Ballard v. Dyson . . . . - V. Way Balm V. Balm Balmain v. Shore Balmanno v. Lumley . . Bamford v. Creasy . . v. Shuttleworth Banbury (Ld.) v. Briscoe . . V. White .. Bandon (Ld.) v. Belcher Bank of Australasian. Breillatt ■ ^- V. Flower . Bank of Gibraltar, Re 435, 448 Bank of London v. Tyrrell . . 425 Bank of London, &c. Insur- ance Association . • . • 450 Bankart v. Bowers . . . • 69 879 144 959 12S5 741 1037 498 1022 1006 646 990 420 738 Bankart v. Houghton Bankes v. Le Despencer Banks v. Gibson V. Scott • . V. Thornton . . Bannatyne v. Barrington Banner v. Lowe Bannerman v. Clarke Barber, Ex parte , Goods of . . , Re . . 1). Barber Barber's Trusts Barclay, Ex parte V. Maskelyn . . V. Raine 503, V. Wainwright Bardswell v. Bardswell BarfF, Ex parte • . Barford v. Street Bargate v. Shortridge Bargent v. Thompson Barham v. E. Thanet Baring «. Dix. . V. Nash Baring's case . . . . Barker v. Barker V. Greenwood V. May V. Peile .. V. Rayner t). Richardson V. Smark . . V. Venables . . Barksdale v. Gilliat . . Barkworth ii. Young . . Barling v. Bishopp . . Barlow v. Bateman . . V. Gains . • I). Osborne V. Rh-odes . . V. Slater Barnaby J). Tassell 1226, Barnacle v. Nightingale Barnard v. Bagshaw . . 0. Bywater I). Cave V. Ford V. Pumfrett .. Barned's Bank, Re . . Barnes v. Allen . . V. Barnes . . V. Jennings . . t). Patch V. Pinkney . . V, Racster . . 1). Robinson ., PAGE .. 155 197, 565, 1154 .. 712 .. 102 .. 1193 .. 1057 20 977, 1046 ,. 725 ,. 1187 917, 1312 616, 1198 .. 895 643, 644 .. 1185 1006, 1071 .. 1241 .. 868 .. 244 .. 762 409, 422 .. 498 .. 1324 .. 731 .. 459 .. 717 254, 1262 .. 880 32 .. 912 .. 1242 .. 137 .. 1076 .. 1045 .. 1250 .. 554 271, 273 .. 1151 .. 665 .. 988 .. 133 .. 1303 1227, 1262 .. 1218 .. 906 633, 687 .. 75 .. 365 241, 246 .. 414 1104,1336 297 1114, 1262 .. 1309 .. 652 .. 689 .. 861 Table of Cases cited. Barnes v. Thrupp V, Vincent ■ V. Wood PAGE . . 465 .. 1)75 933, 1026, 1029 .. 1272 ..652 .. 1095 .. 170,1149 . . 245 .. 1293 685,690 813 938 Barnet v. Barnet Barnettj Ex parte V. Barnett V. Blake v. Sheffield V. Tugwell V. Weston V. Wilson Barnfather v. Jordan Barnhart v. Greenshields 1056, 1060 Barnwell !). Iremonger 34,1325 Barr v. Carter. . . . . . 234 V. Jackson . . . . 235 Barrack «. M'Cullock 271, 376, 377, 873 Barrattn). Wyatt Barret's case . . Barrett v. Beckford ' V. Blagrave 11. Hartley ' V. Sabine ■ V. Wilkins Barrington, Re V. Evans V. Liddell V, O'Brien • V. Tristram . . 892 . . 426 .. 610 .. 95 629, 885, 886 . . 629 .. 1185 .. 257 .. 537 C, 7, 258 .. 593 1254,1285 Barrington's Settlement, Re Barker v. N. L. Rail. Co. . . 945 Barrow, Ex parte . . . . 709 V. Barrow 160, 360,367,370, 574 V. Griffiths . . . . 639 Barrow's case. . .. .. 442 Barrs v. Fewkes 262, 263, 869, 1206, 1314 Barr's Trusts 649 Barry v. Croskey . . . . 90 D.Harding .. ..1229 u. Nesham .. 709,710 Barstow D. Kilvington .. 616 Bartholomew, Re .. .. 1097 V. Harris . . 809 Bartle ». Wilkins . . . . 698 Bartlcman V. Murchison .. 1121 Bartlett, Ex parte . . . . 300 V. Bartlett . . 650, 652 U.Franklin .. ..662 V. Gillard .. ..854 V. Green . . 203, 204 ■!;. Pickersgill . . .. 871 V. Salmon . . 1038, 1042 V. Tuchin . . . . 1021 ' — V.Wells .. .. 66 Bartley D. Bartley . . . . 765 Barton v. Barton V. Briscoe V. Cooke V. Gainer 11. Hassard Barton's Trust Will, Re Bartram v. Whichcote Barwell v. Barwell Barwick v. Eng. Jt. St. Bnk. 90, 426 PAOE 1148 383 1233 226 255 1230 455 795 291, 940 Read Basan v. Brandon Bascorabe v. Beckwith Baseley v. Baseley . . Basevi ». Serra Baskett v. Skeel Bassett v. Bassett . . V. Nosworthy 655 .. 1242 957, 964 .. 304 .. 364 .. 700 .. 791 1089, 1090 Add. 1201 3 Bassett's Estate, Re Bassil V. Lister Baslard ». Froby . . . . 564 Bastow, &c. Co., Re . . . . 447 Batchelor v. Middleton . . 535 Bate, Ex parte . . . . 746 V. Hooper . . . . 892 V. Robins . . . . 734 Bateman t. Bateman . . 760 V. Davis . . 806, 902 -D.Foster .. .. 1256 1>. Gray .. .. 1285 V. Hotchkin 1154, 1155 ». Pennington .. 1171 V. Finder . . . . 547 — D. Ross . . . . 388 Bates V. Dandy . . 324, 328 0. Heard . . . . 569 V. Johnson . . 692, 904 Bath (E. of) V. Bradford (E.) 893 Bathurst v. Murray . . . . 30S Bathurst's Estate, Re .. 911 Batsford ». Kebbell .. ..1100 BatterseaParkActs, Re Arnold 101 Battishill B. Reed .. 135,141 Battley v. Faulkner . . . . 544 Bauman V. James .. .. 952 Baxendale v. JM'Murray . . 153 Baxter, Re . . . . 919, 1095 1). ConoUy .. .. 95 V. Dyer .. .. 1182 V. Losh .. .. 1318 t). Portsmouth (E.) .. 66 J). West .. ..732 Baxter's Trusts, Re .. .. 751 Bayley, Goods of .. .. 1177 D.Bishop .. 14,1102 V. Boulcott . . . . 285 ' v. Fitzmaurice .. 481 V. Mollard .. ..1293 XVI Table of Cases cited. Bayley v. Morris . i Bayley's Settlement, Re Baylies v. Baylies Baylis v. Att.-Gen. . . — — V. Le Gros r V. Sayer Bayne i). Crowther Baynham v. Guy's Hosp, Bayspoole v. Collins . . Bazely v. Forder Beaclicroft v. Beachcroft Beadel v. Perry D. Pitt . . Beak v. Beak . . Beale v. Beale V. Caddick • . V. Symonds . . Beales v. Crisford . . Bean v. Griffiths . . Beard v. Webb —^— V. Westcott . . PAGE .. 182 777, 778 .. 891 .. 1207 .. 497 .. 1179 13 218,613 .. 279 .. 66 .. 1292 .. 146 478, 494 Add. 128 .. 778 .. 739 167, 663 1228, 1295 .. 1108 .. 707 753, 1336 480, 509 .. 206 .. 1133 Beardman v, Wilson . . Bearpark v. Hutchinson Beasney's Trusts, Re Beattieu.Ebury (Ld.) Add. 423, 427 Beaty w. Curson .. .. 917 Beauchamp (Ld.) v. G. W. Rail. Co 947 Beauclerk ». Mead ,. .. 100 Beaufort (D.) v. Berty 297, 298 V. Glynn 1020, 1034, 1038 Beaufoy, Re . . Beaugolais Wine Co., Re Beauman v. Stock Beaumont, Re . . ^— V. Carter . . V. Fell ». Oliviera I). Reeve . . ». Salisbury II. Squire .. Beaumont's Trusts, Re Beavan v. Att.-Gen. . . 42 V. M'Donnell V. Oxford (Ld.) Beaver v. Norvell Bebb V. Bunny ■ V. Penoyre Beck, Re .. V. Burn . . V. Kantorowicz . ■ Beckett v. Howe V. Corp. Leeds • V. Mid. Rail. Co. Beckford v. Tobin . . - V, Wade . . 116 445 1318 52 552 1208 54, 55 67 879 1143 104 1234 66, 638, 707, 938 276, 466, 467, 472 1297, 1318 977 1222 1128 1099 425 1180 1002 147 1253 527 PAGE Beckham 1). Drake .. 79,715 Beckley i;. Newland .. 84, 654 Bective v. Hodgson 3, 105, 110, 112 Beckton f. Barton >• •• 1135 Beddoes v. Pugh . , . . 841 Bedford (D.) v. Abercorn (M.) 536, 559, 797 V. Backhouse •• 696 B.Bedford .. .. 1326 (D.) V. Brit. Museum 89, 1086 V. Deakin . • . . 738 Bedford Rail. Co. v. Stanley 394, 943 Beech v. Keep . . . . 283 D.St. Vincent (Ld.).. 7 Beecher v. Major . . 870, 871 Beer v. Beer . . . . 23, 483 V. Sapp 888 Beere t). Hoffmeister.. •■ 841 Beeston t>. Booth .. .. 1246 0. Weate .. .. 150 Beevor v. Lawson . . . . 665 1). Luck . . 605, 687 Begbie v. Crook . . . . 878 Behn v. Burness .. .. 89 Beisley ii. Carter 966, 990, 1040 Belaney v. Belaney 619, 1195, 1214, 1222 Belding «. Read .. .. 646 Belki). Slack 1131 Bell V. Ahearne i • . . 647 «. Blyth 654 V. Cade 751 V. Carter . . . . 627 D.Clarke .. .. 611 D. Cundell. .. ,. 1089 D. Fothergill .. ..1186 D. Holtby .. Add. I'M V. Mid. Rail. Co. 132, 143 V. Pbyn .. .. 724, 1221 V. Timiswood . . . . 234 B.Walker .. ., 122 Bell's and other Cases . . 441 Bellamy, Re 1171 V. Buckenden 659, 673 D. Sabine 62, 88, 1058 Bellasis D. Compton .. .. 872 D. Uthwatt .. 845,851 Bellinger d. Blagrave . . 88 Benbow v. Townsend. . 863, 872 Bence D. Gilpin ,. 214,877 Bending w. Bending .. .. 353 Bendyshe, Re .. .. 360 Bengough «. Walker.. .. 851 Benham v. Gray , , . . 723 V. Keen 467, 470, 695 Benham's Trusts .. 1013,1133 Bennet D. Aburrow .. ., 819 Table of Cases cited. xvu PAGE Bennett, Ex parte .. 939,940 Re 837 V. Barnard .. .. 537 D. Batchelor .. 262 D.Bennettll23,1151,1295 D. Colley .. 219,223 V. Cooper . . . . 654 t). Ireland . . 476, 495 «. Lincoln (Bp.) ,. 175 ». Lytton .. ..258 t). Marshall .. 1207 ■ V. Merriman 61, 1263 «. Bees .. .. 1036 I). Tankerville (E.) 204, 994 t). Womack 478, 496, 499 ■ «. Wyndham Bennett's Trusts Bennison v. Cartwright Bensley ti. Burden . . Benson v. Benson ti, Maude V. Whittam . . Bent V. CuUen . Bentham v. Wiltshire Bentley v. Craven ■ V. Mackay ■ V. Oldfield 638 HOO, 1263 ,. 143 .. 1084 . 903, 1186 .. 1251 . . SC6 Add. 14 .. 798 720, 938, 957, 1016, 1040 284, 292 .. 1320 Bcnwell v. Inns Benyon v. Benyon V. Maddison Beresford v. Armagh (Archb.) B. Beresford . . Berkeley i). Daugh . . . . V, Hardy . . V. Swinburne 81 1239 1103 377 612 .. 998 .. 66 1095, 1284 Bermingham t>. Sheridan .. 410 Bernal ». Bernal .. 1165,1278 Bernard v. Minshull 831, 865, 866 Bernasconi ». Atkinson .. 1215 Berneys. Sewell .. 673,675 Berridge !). Ward .. .. 1002 Berrisford v. Milward . . 688 Berry, Ex parte . ■ • . 279 D. Berry .. .. 1282 ». Briant .. .. 866 V. Hebblethwaite . , 683 V. Morse . . . . 856 J). Usher .. .. 245 ». White .. ..785 K. Young .. 1021,1071 Bertie K. Abingdon (Ld.) .. 200 Besch ». Frolich .. ..733 Bescoby 1). Pack .. ..1229 Bessell's Trusts . . . . 648 Bessey D. Windham .. .. 274 Best D. Drake .. .. 1034 Best t». Stonehewer Best's Case .. Bestall V. Bunbury Bethel! «. Green Bethune v. Kennedy Betts V. Burch Bcvan v, Att-Gen. V. Habgood V. Hastings (Ld.) ' V, Lewis Beverley v. Beverley Bewick «. Whitfield Beynon v. GoUins Bibby v. Carter D.Thompson Bick V. Motly.. Bickerton v. Burrell Bickett V. Morris Bickford v. Parsons Bickham v. Cruttwell Bickley !). Guest Bicknell v. Hood Biddies v. Biddies ». Jackson Biddulph, Ex parte V. Biddulpli ■ V. Lees Biederman v. Stone Bielefield v. Record Biffin V. Bignell Bigg V. Strong Bigge V. Bigge Biggleston v. Grubb Bigg's Case .. Biggs V. Gordon V. Terry . . Bignold, Re . . V, Giles PAGF, .. 1315 .. 399 .. 378 34 .. 115 .. 68 .. 1237 671, 785 .. 232 .. 716 .. 311 .. 1156 .. 248 .. 152 .. 867 .. 905 948, 1020 .. 149 .. 508 .. 1323 769, 771 . . 476 .. 866 .. 305 717, 905 104, 108 .. 1152 411,443 1136 386 954 1186 857 416 983 302 422, 911, 914 15, 1272 V. Waterhouse . . 728 Bill V. Cureton 274, 292, 293 ■ — - ti. Kinaston Billage v. Southee . . Billings «. Sandon Billingsley v. Critcliet V. Wills . . Bills V. Hopkins , . Binckes v. Pash . . Bindley D. Mullony .. Bingham v, Bingham V, Woodgate Binks V. Lord Rokeby Binnington v. Harwood Binns v. NichoUs Birch V. Ellames . . V. Dawson tf. Sherratt V. Wade Bird t>. Bird. 618 230 287, 288 1117 595 1118 1124 145 385 1080 181 993 674 538 1056 1231 17 780, 781, 865 xviu Table of Cases cited. PAGE Bird V. Blosse . . . . 561 II. Boulter . . SSI, 983 ^w. Fox .. .. 971,1067 J). G. E. Rail. Co. . . 480 V. Higginson . . . . 480 V. Maybury . . . . 866 t>. Peagrum . . 327, 377 D.Wood 1312 Birds V. Askey . . . . 37 Birk. School, Ex parte . . 46 Birkett «. Hibbert .. .. 304 BirksD. Birks .. ,.1172 V. Micklethwait . . 904 Birley v. Birley , . . . 777 Birls u. Betly 907 Birmingham, &c. Co., Ex parte 444 Burke • V, Kirwan Biron V. Mount Birt, Goods of V, Bontinez Bisdee, Ex parte Bishop «. Cappel «. Churcli V. Howard V. Jersey (Lady) V. Sharpe Bisset D. Burgess Black & Co.'s Case, ». Jobling Blackborough v. Davis Blackburn v. Smith V. Stables Blacket v. Lamb Blackett v. Bradley V. Bates Blackford v. Davis V. Woolley Blackie v. Clark Blackler v. Webb Blacklow r. Laws Blackman, Re Blackmore, Re , Yates Blackwell v. Bull Blackwell's Trusts, Re Blagden v. Bradbear . . Blagrove v. Bradshaw V. Coore Blague V. Gold . . Blaiklock v. Grindle Blair v. Bromley Blake, Ex parte V. Blake V. Bunbury ■ 1). Foster i>. Leigh 537 352 .. 890 .. 1190 .. 391 631, 034 .. 1314 .. 715 .. 481 .. 718 .. 1169 .. 36 Add. 440 1174, 1188 .. 232 1021, 1022 558, 563 .. 163 .. 153 92, 93, 94 . . 664 . . 764 305, 617 .. 1288 375, 979, 985, 998, 1041 .. 1208 .. 1095 . . 423 .. 1271 .. 1131 951, 953 .. 1110 .. 1243 .. 1211 157, 164, 811 .. 717 . . 604 207, 874 .. 891 534, 1175 . . 300 PAGE Blake v. Luxton . . . . 207 Blake's Trusts .. .. 1270 Blakeley D. Brady .. 282,214 Blakely Co., Re .. ,.422 Blakemore's Settlement . . 752 Blakeney v. Blakeney . . 867 Blakesley, Re 630 ». Whieldon .. 478 Blamire «. Geldart ,. 1099,1103 Blanchard, Re .. ,.913 Blanchet !). Foster .. .. 313 Bland u. Williams 751, 1124, 1135 Blandford (Marq.) v. Marl- borough (Dss.) '781, 782 V. Thackerell , , 926 Blandy ». Widmore ,, .. 610 Blann t). Bell , , ,. 114,115 Blasson t). Blasson .. 265,1287 Bleakley ». Smith .. ,.953 Blencowe, Ex parte , , , , 903 Blenkinsopp v. Blenkinsopp 271 Blennerhasset v. Day 531, 941 Blewettv. Jenkins ., ,, 211 Blewitt, Re ,. .. 195, 196 ^ II. Roberts .. ..13,15 Bligh V. Darnley (E.) . . 37 Bliss D. Collins .. .. 26 D.Hall 153 Blisset V. Daniel . . , , 731 Blithe's case 313 Blogg 0. Johnson .. ,, 252 Blois V. Hereford . , . . 568 Bloomar, Re 460 Bloomer v. Spittle . . . . 1068 Blore D. Sutton .. 792,815 Blosse D. Clanmorris (Ld.) .. 1039 Blount 1). Bestland .. 329,331 D. Burrow .. ,, 127 D. Hipkins .. .. 1237 Blower's Trusts ., ., 1282 Blowett J). Morret ,, .. 1245 Bloxam v. Met. Rail. Co. 428, 430 Bloxham's Case . . . . 399 Blundell w. Chapinan., ,. 1220 K.Gladstone .. ,. 1215 D.Stanley .. ,. 622 Blyth V. Carpenter . . . . 653 Blythe D. Granville ,, ,. 604 Boddington v. Abernethy . . 923 Boddy D. Dawes ., ., 1255 Boden, Re .. . . ., 703 Bodenham w. Hoskyns .. 887 D. Pritchard .. 1212 Bodmin (Ly.) v. Vendebendy 1090 Boehm D.Wood .. 527,1037 Bogg D. Mid. Rail. Co. , . 476 Bogue t). Houlston ,, .. 126 Bold D. Hutchinson . , 309, 555 Table of Cases cited. liXX. Bold w. Rayner Bolding V. Lane Bolger B. Mackell Bolilho V. Hillyer Bolognesi's case Bonbonus, Ex parte ■ Bond, Ex parte V. England V. Gibson ti. Kent . . V. Milbourn V. Kosling V. Siminonds t). Taylor Bondfield v. Smith Bone V. Pollard Bonfield v. Hassall Bonbam v. Newcomb Bonnell v. Sadler Bonner v. Bonner. . Bonney v. RWgard Bonser v. Bradsliaw — — II. Kinnear Booker v. Allen Boosey v. Gardener . Booth «. A'Beckett . V. Arlington II. Booth.. 18, 218, 1094, 1095 .. S3 . n,Add.l1 91 PAGE .. 76 S37, 542 .. 1097 62,1116 . . 444 .. 714 .. 596 .. 1324 .. 715 .. 1076 .. 736 .. 480 331,370 391,811 .. 715 875, 948 281,314, 1149 .. 627 .. 78 37, 365, 1242 . . 527 .. 1175 . . 865 847, 856 .. 1152 . . 789 457, 834 I). Carter.. V. Coulton ». Pollard Bootle V. Blundell Boraston'scase Boreham v. Bignall , Borrell v. Haigh Borrows v. Ellison Bortoft V. Wadsworth Borton v. liorton Bos V. Helsham . . Boson i\ Statham Boss V. Godsall liostock V. Floyer . . V. Smith Boswell V. Dillon V. Mendham Bothomly v. Fairfax .. 1321 892,1097, 1103, 1117 .. 1194 .. 1203 ..525 .. 1129 331 956, 975, 1078 . . 54 .. 900 251, 884, 891 .. 352 .. 550 .. 1041 .. 36 Bottw. Smith 271 Bottler. Blundell Boucicault v. Delafield Boughey v. Moreton . . Bough ton V. Bough ton 1). James D.Jewell .• 589 .. 124 .. 1188 .. 1320 4, 753, 838 .. 972 Boulcott 0. B'oulcott . . .. 1191 Boulton, Ex parte .. ..648 V. Liverpool Corpn. . . 1062 1). Pilcher ,. .. 1112 PAGE Bourn-e-D. Bourne .. 105,680 V. Buckton ■ . . . 6 — 7 . V. Fosbrooke . . . . 226 ti. Liverpool (Mayor).. 943 Boursot V. Savage 904, 1060, 1061 .. 677 935, 987 .. 128 .. 1130 764, 813 .. 37 Adi. 1260 Bourton v. Williams . Bousfield V. Hodges . Boutts V. Ellis Bouverie v. Bouverie. Bovey «. Smith Bovvaman v. Eeeve . Bowen v. Barlow V. Brecon Kail. Co. 423, 675 V. Evans . . . . 990 Bower v. Cooper. . 957, 967, 1072 D.Hill 144 V. Smith . . . . 605 I). Swadlin . . . . 728 Bowers !). Bowers .. 1115,1116 Bowes w. Bowes .. ..1191 V. Cross . ■ , . 476 ». E. L. W. Co. .. 792 V. Hope Assu. Co. . . 434 ■ V. Law .. 1074 Bowker v. Bull . . 666, 690 Bowles V. Rogers •■ ■• 1045 Bowles' case .. .. 1155 Bown D. Stenson .. 1016,1035 Bowra ». Wright .. .. 460 Bowring J). Shepherd.. Add. 411 Bowron, Bailey & Co., Re 400 Bowser v. Colby V. Maclean 495, 635 .. 211 .. 541 .. 1237 157,159 335,366 ..325, 327,335 .. 1202 ..800 593,780 ..265 . . 245 Bowyer v. Woodman . Box, Re .. . V. Barnett V. Box .. V. Jackson Boyce v. Boyce V. Hanning Boycot V. Cotton Boyd V. Boyd . . V. Brookes 11. Petrie . . 681, Add. 681 V. Shorrock . . . . 643 BoydeK. Pawle .. .. 217 Boydell v. Gohghtly . . 227, 1281 Boyes r. Bedale .. 1163,1291 Boyle V. Peterborough (Bp.) 833 Boyman w. Gutch .. ..1039 Boynton v. Boynton 164, 352, 357 Boys e. Morgan .. .. 1268 D.Williams .. 1209,1234 Bozon V. Williams . . 687, 1059 Brabant II. Wilson .. .. 215 Brace v. Marlborough (Dss.) 689, 690, 692, 693 XX Table of Cases cited. Brace v. Welinert . . • Brackenbury v. Brackenbury Bradburn v, Botfleld Bradbury ». Dickens , II. Hotten , Braddon v. Ferrand , Bradford v. Belfield : — V. Brownjohn . (E.) V. Romney (E.) Bradisli v. Gee Bradley v. Barlow V. Bury V. Cartwright V. Heath V. Peixoto ,v. Westcott Bradshaw, Ex parte i. Bradshaw V. Fane V, Thomas PAGE 93 292, 861 .. 69 .. 736 Add. 121 .. 262 .. 677 221, 222, 223 616 108 1136 811 1299 241 188, 200, 1148 761,762 919,944 296, 1033 795 1202 Brady v. Fitzgerald Brain v. Brain Bramwell v. Halcomb Brandling v. Plummer Brandon v. Aston . • V. Brandon 10 1183 122 957 1150, 1287 672, 675, 944 !). Robinson . . 1148,1149 Branley v. S. E. R. Co. . . 71 Brassey V, Chalmers . . . • 790 W.Chambers .. .. 461 Bray v. Bree 775 Braybrooke v. Att.-Gen. 813, 1054 V. Inskip 998, 1259 Brayne w. Rees .. .. 17 Brazier v. Hudson . . . . 235 Breadalbane 1). Chandos .. 616 BrearcliiTe v. Dorrington 472, 652 Brecon (Mayor) v. Seymour.. 691 Breei). Perfect .. ..1137 Breech-Loading Co., Re . . 650 Breedon I). Breedon. .. .. 1067 V. Tugman .. ..1119 Bremer ». Freeman . . , , 263 Brenan t). Moran .. .. 1239 Brereton v. Hutchinson 243, 530 Brett V. E. I. Co 94 tj. Forcer .. ..363 V. Horton .. ..1288 V. Rigden .. ..1196 Brett's case . . . . Add. 436 Brettle D. Williams .. .. 716 Brette!, Re 383 V. Burdett . . . . 639 Brewer, Ex parte .. .. 301 V. Swirles , . 380, 908 Brewin v. Brewin , . . . 596 Brewis, Re . . Brewster v. Angell Brice v. Brice . . V. Stokes.. Brickenden v. Williams Bricker v. Whatljr . . Brickworth v. Brickworth Briden «. Hewlett Bridge v. Abbot V. Beadon V. Bridge V. Yates Bridger v. Huett ■ V. Rice PAGE 1172 797 164 239, 884, 909 832 454 595 1312 1313 651 283 454 1015 88 401,436 Bridget's case . . Bridges v. Longman 499, 505, 638, 800, 1040, 1041, 1043 V. Robinson . . . . 984 Brigdman v. Dove 1230, 1321, 1323 1). Gill .. 547,906 V. Green . . 289, 290 Bridgnorth v. Collins . . 3 Bridport Old Br. Co., Re . . 443 Brierly v. Kendall . . . . 644 Brigg's case Briggs V. Chamberlain V, Jones V. Oxford (E V. Penny V. Upton o. Wilson Bright, Re V. Larcher V. Legerton V. North V. Rowe u. Walker Brighton v. Brighton Brighton Arcade Co, lin: Hotel Co., Re Brighty v. Norton Brigstocke v. Smith Brine v. Farrer Bringloe v. Goodson Brinkley v. Hann Briscoe v. Briscoe Bristed v. Wilkins Bristow D. Boothby V. Bristow V. Sequeville V, Skirrow V. Warde V. Wood Bristowe v. Bristowe British Mus. v. White ■ Tel. Co. V. Colson 404,406,408 54,336 .. 685 1157, 1158 . . 865 . 601,1312 242, 547 .. 651 . 30, 17, 538 530, 909 .. 886 .. 1136 .137,140,141 .. 101 V. Dow- . . 440 433, 434 660, 662 , . 546 .. 1239 768, 835 89, 934 .. 164 .. 471 .. 836 . 1241,1254 .. 71 832, 985 .162,772,773 .. 1041 .. 675 42, 49 Brittlebank v. Goodwin 399, 952 243, 530 Table of Cases cited. PAGE Britton «. Britton . . . , 366 Broad v. Selfe 629 Broadbent, Ex parte . . . . 742 1). Barlow .. ., 689 y. Ramsbotham .. 150 ■ V. Varley , . . . 648 Broadhurst !). Morris . . 1294,1303 Broadmead v. Wood . . . . 779 Broadwood's Estates, Re . . 987 Brock D. Bradley .. .. 1114 Brocklehiirst !i. Jessop . . 539 Brocklesby, Re .. .. 917 Brodie w. Barry ..161,893,116 W.St. Paul ..888,952,982 Brodrick v. Brown . . 807, 808 Brograve !). Winder .. ,. 1170 Brome «. Berkley .. .. 587 Bromfield «. Crowder 111,1121 Bromley «. Brunton .. .. 128 D.Goodman .. .. 102 V. Jeffries . . 560, 952 1). Kelly .. .. 9U0 W.Smith .. .. G55 ■U.Wright .. 1099,1102 Brook V. Anon. . . 1035, 1037 V. Badley . . . , 50 «. Brook .. 845,71 V. Garrod . . , , 942 V. Harwood . . . . 627 Brooke w. Brooke ., 374,76 ■ w. Bulkeley .. .. 1056 V. Haymes . . . . 234 V. Kensington (Ld.) . . 642 W.Lewis .. .. 1098 w. Mostyn (Ld.) .. 60 w. Pearson .. .. 578 w. Rounthwaite . . 962 (Ld.) V. Warwick (E.) 1231, 1243 Brookham's Trusts .. .. 611 Brookman w. Hales .. 224,817 V. Smith . . . . 1307 Brooks V. Keith . . . . 604 Broom w. Broom . • . . 724 Broome w. Groorabridge .• 1245 V. Monck 157, 994, 996 Brotherhood's ease .. .. 415 Brotherton w. Bury .. ..1117 w. Halt.. 692,1061 Broughton V. Broughton .. 885 w. Hutt .. .. 77 Brouncker w. Bagot . . . . 226 Brown w. Bamford .. .. 382 V. Barkham . . 1278, 1279 V. Brown 108, 160, 162, 387, 1191, 1229, 1246 ». Carter . . . . 290 w. Casamajor 866, 867, 1256 Brown v. Cavendish . V. Clark ' w. Cole V. Dawson w. De Tastet 1). Elton V. Famdell D. Gellatly ' V. Gordon w. Higgs V. Hotson w. How — ^^— w. Kennedy V. Lockhart w. Met. Society w. Nesbitt V. Oakshot w. Peck w. Pocock w. Quilter V. Eabon w. Raindle V. Rawlings V. Robins ■ v. Selwin V. Sewell V. Temperley w. Thompson V. Trumper V. Wales t>. Whiteway Brown's Settlement Trusts PAGE .. 894 360, 366 662 853 720, 737 359 265 114, 115, 741 547, 740, 741 826, 845 .. 75 .. 891 288,292 .. 662 .. 660 773,813 457, 723 .. 1108 .. 77'1 495, 498 .. 478 455, 934 .. 181 .. 152 .. 1205 .. 700 .. 1255 .. 15 493,497,511 Add. 491 .. 880 .. 801 649,797,837 .. 23 221,1104, 1125 .. 895 .. 535 .. 532 .. 1287 1200, 1284 1196,1197 597 1128 Browne w. Amyot w. Browne V. Cavendish w. Cork (Bp.) V. Cross V. Groombridge V. Hammond V. Hope w. Paul ^—^— V. Rainsford w. Savage .. ., 651 !). Stead .. ., 667 w. Stoughton .. .. 4 w. Tighe .. .. 218 Browne's Will, Be ., 14,603 Browning w. Wright . . 1069, 1070 Brownson w. Lawrence 34, 1325 Brownswood w. Edwards .. 1221 Bruce, Ex parte . • . . 632 W.Bruce 814,819,1165 v. Deer Presb. , . . . 43 D.Garden ,. .. 647 Brudenell v. Elwes 766, 776, 838 Bruen v. Bruen 849, 850, 1096 Bruin v. Knott .. 596,597 Table of Cases cited. Brumfit «. Morton •■ Brummel v. Prothero.. Brumridge v. Brumridge Brunton ti. Hall Bryam.D. Bryam V. Clay ^— ^— V. Collins ■ «■ Twigg PAGE 959, 1058 .. 1321 Bryant v. Busk Bryden v. Willett Brydges v. Brydges V. Stephens 893 144 915 36 4 15,76 993, 1007, 1043 1302, 1304 .. 179 .. 1154 81,1160 .. 223 Bubb V. Yelverton Bubbers v. Hardy Buchanan v. Harrison 110, 185, 186, 1222 D.Hamilton .. 912 V. Poppleton 971, 1010 Buck t>. Shippam .. .< 895 Buckell w. Blenkhorn 808, 844 Buckland v. Hall . . . . 477 . Pappelon 476, 477, 478 V. Pocknell Buckle V. Mitchell Buckley, Ex parte V. Barber V. Howell 1076 .. 276 .. 715 232, 740 .. 796 .. 1067 Buckley's Trust, Re Buckmaster v. Harrop 950, 955, 995 t). Russell . . 540 Bucks (E.) V. Drury . . 673, 575 V. Hobart . . . . 623 Budd's case .. .. .. 415 Budge V. Gummow 900, Add. 900 Buffar 11. Bradford .. 1198,1294 Bugden «. Bignold .. 689,1057 Bugg, Ex parte .. .. 408 Bulkeley t). Hope .. ..258 V. Welford . . . . 288 Bull t). Birkbeck .. ..217 M. Hutchins . . m^, 1058 D. Pritchard .. 1117,1125 Eullen u. Denning .. .. 492 V. Fletcher . . . . 996 ti. Sharp .. .. 711 BuUer v. Hornby . . Add. 604 . ». Plunkett .. .. 651 V. Waterhouse . . 278 Bullock v. Bennett 1140, 1144, 1167, 1195 t). Crockett . . . . 722 D. Dodds .. 169,170 V. Dommitt . . . . 497 K. Downes .. 453,1310 V. Fladgate . . . . 834 1!. Menzies ,. .. 371 !). Thorne .. ..278 V. Wheatley . . . . 251 Bullpin V. Clarke Bulmer v. Hunter V. Jay . . Bulteel, Ex parte «. Pluramer . Bulwer v. Astley Bunbury v. Bunbury . j;. Fuller . . I). Lloyd . «. Winter . Bunn V. Bunn V. Markham Bunn's case .. Bunny v. Hopkins . Bunting v. Marriott . Burbey v. Burbey • Burbidge v. Burbidge Hurch, Re 11*6 Burchett «. Durdant . . ..1277 Burden, Goods of .. .. 235 V. Burden 252, 255, 720 Burdick v. Garrick . . 252, 547 Burden v. Barkas 708, 723, 724, 737 360, 364 .. 1260 .. 886 . 1158,1159 200, 831,851 . . 498 .. 1249 167, 168, 169, PAGE . 379 . 571 . 1312 , 632 , 826 , 209 , 860 515 616 . 629 , 270 , 129 , 401 1084 50,53 1214, 1283 .. 1231 ■ V. Dean Burdus V. Dixon Burge V, Brutton Burges v. Lamb V. Mawbey Burgess v. Bo.etefeur V. Burgess J). Wheate Burgh 1). Langton Burgoyne v. Fox Burke v. Annis V. Jones . . ». Lynch • . Burleigh v. Pearson . . Buries v. Popplewell. . Burleton v. Humphrey Burley «. Evelyn .. Burls D. Burls Burmester v. Moxon .• Burn D. Burn... V. Boulton . . V. Carvalho Burnell t). Brown Burnes v. Pennell Burnet v. Coby V, Mann. . Burnell v. Kinaston .. Burnham v. Bennett.. Burrell v. Baskerville V. Dodd • V. Egremont (E.) — — V. Sabine .. V. Smith . . Burridge v. Bradyl . . 179, 663, 887, 888 682 .. 591 .. 1273 31, 895 .. 534 615,839 .. 258 .. 1146 .. 110 . 1174,1187 .. 683 715,716 . . 547 .. 636 959, 1043 408, 426, 427 . . 204 265, 805 332, 333 331, 812 .. 104 .. 181 538, 624 . . 941 32 .. 1245 Table of Cases cited. xxiu Burridge v. Row . . Burrough v. Cranston : — V. Pliilcox . . V. SWnner Burrouglies w. Brown Burroughs v. M'CreiglU ■ ti. Oakley PAGE 611,612 .. 662 844', 845 9S3, 1022 . . 984 S15, 528, 529 1017 Burrow, Re 1292 Burrow's Trusts, Re . Burrowes v. Cottrell V. Lock ti. Gore Burrows t). Wallis Burt I). Sturt .. • V. Hellyar Burton v. CoUingwood V. Darnley (E.) i>. Mount ■ II. Powers . . ■ 1). Wigley 1194 .. 1242 90, 1043 528, 529, 538 . . 248 Bury I). Allen I). Bedford • V. Phillpot Busby V. Salter Bush V. Cowan • V. Locke Bushell V. Bushell . Busher v. Thompson . Bushy II. Greenslate . Bustard's case Butchart v. Dresser . Butcher «. Butcher Bute (Marq.), Re . BuUer v. Carter — -^ 11. Curapston . . 11. Duncombe n. Freeman II. Gray f. Knight 5, 6,7 . 1309 . 1172 . 301 . 115 .. 1273 .. 729 718,722 .. 736 .. 1015 .. 839 .. 822 .. 1281 696, 1057 .. 181 .. 201 .. 1001 714, 734 603, 773, 834 .. 918 530,907 380, 908 587, 592, 594 295, 301, 1256 ..845 ., 63 11. Mountgarrett (Ld.) 1014 i. Mulinhill . . .. 88 r £1. Stratton .. .. 1315 Butt II. Imp. Gas Co 148 Butt's case 237 Buttanshaw ii. Martin 195, 383, 891 Butter II. Bushnell .. .. 1312 Eutteraeld ti. Butterfield 201, 202 . II. Heath .. .. 1041 Buttermere ».. Hayes . . . . 950 Butterworth u. Harvey .. 1135 11. Robinson 121, 122 Buxton II. Buxton . . . . 250 11. Lister .. ..712 Bwlch, &c. Co. 11. Baynes 406, 426, 431 Byam ti. Byam 374, 615, 765, 806 11. Manton .. .. Ill Byam v. Sutton Byde ii. Byde .. Byne ti. Blackburn 11. Currey Byng i;. Byng. . Byrd, Goods of Byrne ii. Norcott Byron ii. Met. Sal. Omn. Co. Bythesea ii. Bythesea PAGE 16, 621 .. 850 .. 866 .. 1242 1230, 1294 .. 1178 251 420, 431 1137 Cable 11. Cable .. ..1311 Cadbury ii. Smith 246, 538, 1248 Caddick 11. Cooke .. .. 681 II. Skidmore . . . . 953 Cadell 11. Palmer 748, 835, 926 Cadge, Goods of .. 1190,1268 Cadle II. Moody . . . . 677 Cadman 11. Horner .. .. 89 Cadywold, Re .. .. 1182 Cafe 11. Bent .. .. 115, 911 Cage «. Acton .. .. 314 Calcraft II. Roebuck .. ..977 Caldecott u. Brown . . . . 208 11. Caldicott .. 113 11. Smith . . . . 364 Caldwell ii. Fellows . . . . 455 Ex parte . . Add. 650 Caledon.R.Co. 11. Belhaven(Ld.)153 II. Helensburgh 394 : 11. Sprot 134, 153 Calisher D. Forbes .. Add. 651 Calisher's case . . . • 440 Calleyu. Richards .. .. 1062 Calmady II. Calmady .. 358 Calverley II. Williams .. 1031 Calvert ii. Armitage .. 51, 54 11. Godfrey .. 933,1041 V. Johnson . . . . 378 -II. Sebbon ... .. 1249 II. Sebright .. .. 1083 Cambridge ti. Rous 755, 1115, 1117, 1258 Camden ii. Benson . . . . 989 Camoys II. Best .. .. 911 11. Blundell .. .. 120S D.Gladstone.. .. 1215 Campbell 11. Allgood . . .. 1159 11. Bainbridge . . 603 11. Beaufoy . . . . 263 V. Bouskell 1218, 1294, 1297 TT- 11. Brownrigg .. 1233 11. Campbell 456, 849, 852 XXIV Table of Cases cited. PAGE Campbell «. Fleming i. .. 1039 V.French.. 364,1185 W.Graham.. 1232,1251 V. Harding 226, 1302 V. Home . . . . 842 •^— V. Hooper . . . . 638 V. Ingilby 160, 161, 574 V. Leach 503, 784, 785, 787, 789, 815, 825 t). Lewis .. .. 1082 V. Mackay . . . , 302 V. Netterville (Ld.) 1145 V. Prescott 1226, 1228 t). Radnor (E.) .. 48 V. Sandys . . , . 833 D.Scott .. .. 122 V. Walker . . . . 940 K.Wilson .. ..137 Campbell's Trusts, Re 861, 914 Campion B. Cotton .. .. 571 1). Hartley.. .. 511 Candler D. Candler .. 95,713 K. Tillett .. .. 248 Cane, Re , . . .' . . 285 Canham v. Fisk 132, 134, 136, 149 Cann ». Cann .. ■. .. 61 Cannel t). Buckle .. 551,560 Canning ». Canning .. 460,1274 Cannon v. Johnson . . . . 462 Cant, Re .. .. 101,942 Cantley, Re 1260 Cape's Executors case .. 410 Capel «. Girdler .. ..619 ji. Wood; 219 Capel's case .. .. .. 637 Caplin, Re 822 Capp V. Norwich and S. W. Rail. Co 1033 Capper ti. Spottiswoode .. 1076 1). Terrington . . 699 Capper's case.. .. .. 413 Cardigan (E.) v. Montague 787, 790 Careless «. Careless .. .. 1207 Carew, Re 651 V. Cooper . . . . 655 Carew's case . . . . . . 395 ■ Estate . . 88, 990 Carey v. Doyne . . . . 658 • V. Goodinge ■ . . . 245 Carington (Ld.) v. Wycombe 947 Carlen v. Drury . , . . 409 Carleton D. Leigbton . . .. 654 Carlyon v. Levering . . 150, 153 Carmichael t)..Carmichael .. 232 Carmicbael's case . . • • 400 Came v. Long . . , . 53 !i. Roch 1279 Carpenter v, Dunsmure . . 207 PAGE Carpenter v. Parker . . .. 1083 Carpmael «. Powis . . .. 1062 Carr, Ex parte .. 309 V. Atkinson Add. 839 D. Carr . . . • .. 1230 t). Eastabrooke . . 364, 854 V. Errol (E.).. 228, 928, 1334 D.Foster .. .. 143 y. Living .. 866,1150 V. Taylor . . 363, 568 Carrick v. Ford . . . . 365 Carrington (Ld.) ti. Payne .. 1185 Carrodus D. Sharp .. 977,1043 Carroll v. Davis . . • . 537 Carron Co. «. Hunter .. 1238 Carruthers, Ex parte . . 636 Carte «. Carte.. .. 1148,1193 Carter, Re 291 V. Barnardiston 589, 880, 882 V. Bentall .. 1300, 1304 V. Carter . . 604, 665, 685, 686, 692, 693, 806, 815, 835,1087, 1088, 1149 ■!). Haswell .. 5,55,110 ^D. Palmer .. ..939 V. Radbourn.. .. 61 U.Sebright .. .. 217 I). Taggart . . 23, 368, 831 V. Williams 499, 505, 1070 Carteret v. Paschal . . . . 568 Cartledge, Re 1105 Cartwright v. Cartwright 385, 1103 V. Vawdry . . . . 1292 Caruthers t). Caruthers .. 576,580 Carver v. Bowles 163, 837, 847 D.Richards ,. 813,816 Carwardine v. Carwardine 880, 925, 926 Cary v. Abbott . . 39, 41 V. Fadin . • V. Kearsley V. Longman Casamajori). Strode Casborne v. Scarfe Case V. Drosier Casmore, Goods of Cass ». Waterhouse Cassell V. Stiff Casson v. Dade V. Roberts Castellan v. Hobson Castello's case Casterton t>. Sutherland Castle V. Castle — ^— V. Fox 1195 .. 121 .. 123 .. 121 .. 985 209, 661 .. 749 .. 1177 .. 1079 .. 125 .. USD .980,981,984 .. 411 .. 414 773, 774, 845 .. 866 1209, 1235, 1244 Table of Cases cited. XXV TAGE Castle t). Wilkinson . . 933,1029 Caswall, Ex parte .. ..818 Gather Pub. Co., Re . . 422 Cathrow v. Bade . . 467, 1007 Catley v. Sampson . . . . 662 Caton I). Caton 310, 551, 552, 553, 953, 1188 ». Rideout .. .. 377 Catt !). Howard .. ..715 V. Tourle 500, 1070, 1072 Catt's Trusts, Re .. ..1142 "attell V. Corrall . . . . 998 Gattley «. Arnold . . 23, 215, 459 Cattlin V. Brown 749, 750, 752, 753, 754,755, 1331 ^attrall, Re .. .. 1113,1172 Caulfield ». Maguire . . 209,210 2avan (Ly.) i;. Pulteney .. 161 nave V. Cave .. .. 303, 812 V. Holford .. .. 1182 V. Roberts . . 264, 265 l^avendish D. Greaves .. 721 U.Mercer .. .. 1255 i^awood i>. Thompson . . 52 Hawthorne, Re .. .. 917 :;awthron, Goods of .. .. 1172 Jhadwick v. Broadwood . . 522 ■ V. Doleman . . 7''7 t). Heatley . . . . 893 t). Maden .. ..938 V. Marsden . . 1 50, 492 ». Trower ,. .. 152 D.Turner.. 696,1073 ;;hadwin, Ex parte .. .. 1245 Shaffers ». Abell .. .. 1123 ^hallen K. Shippman . . ., 890 ;)hallenger v. Sheppard . . 1273 ^hallis c. Casborn .. .. 691 ^hallis's case . . .. ■■ 401 ^halmer ». Bradley .. 527,877 ;halmers I). North .. .. 601 : — V. Storil . . 164, S53 Ihamberlain, Re .. .. 116 V. Chamberlain . . 368 i>. Hutchinson .. 832 1>. Lee .. 1003,1028 n. White.. .. 591 'hamberlayneo.Brockett, Add. S3 !hambers, Ex parte . . . . 597 Re 771 V. Crabbe . . 287, 313 u. Gaussen,. .. 218 1). Goldwin.. 629,668, 672 D. Howell .. ..741 V. Manchester, &c. Co. . . 422, 423 V, Minchin . . . . 239 W, PAGE Chambers u. Taylor .. 182, 190 Champion ». Rigby .. .. 941 Chandlers v. Price . . . . 229 Chandos (D.) v. Talbot 982, 1094, 1101 Chaplin v. Chaplin . . 19, 850, 851 W.Young ..672,674,938 Chapman ». Blissett .. .. 1331 V. Bradley . . 307, 568, 570 D.Brown .. ., 53 »). Chapman .. 1313 !). Esgar . . . , 33 1). Gatcombe .. 176 D.Gibson.. 814,816 ■ D.Gilbert .. .. 1218 D.Hart .. 1227,1243 D. Reynolds . . 1229 D. Shepherd 411, 445 Chapman's case .. 399,441 Chapman and Baker's case . . 408 Chappell D. Davidson .. 121 D. Gregory . . . . 478 D. Sheard .. 121,122 Chappell's case Jdd. 425 Charge «. Goodyear .. ,. 1283 Charlesworth d. Jennings . . 733 Charlton d. Charlton . . ..1159 — ■■ D. Coombes .. 1062,1140 D. Durham(E.) 238,239 V Hindmash 1178,1179 D. Rendall . . . . 566 D. West . . . . 854 Charman D. Charman. . .. 1182 Charter D. Trevelyan.. .. 941 Chasemore d. Richards 148, 149 Chatteris w. Young .. 295,1041 Chave d. Farrant . . . . 855 Chawner's Will, Re .. .. 1041 Chaworth D. Beech .. .. 1234 — ' D. Hooper .. .. 1255 Cheale D. Kenward .. .. 401 Chedworth v. Edwards . . 905 Checker. Lisle (Ld.) .. 562 Cheesman v. Price . . 730, 732 CheltenhamRail. Co. D.Daniel 409 Cherry v. Mott . . . . 44, 54 Chesman D. Nainby .. .. 95 Chesshyre d. Biss . . . . 667 Chester d. Chadwick . . . . 774 — D.Chester .. .. 1265 w. Painter .. .. 1251 D. Piatt .. ..938 D. Urwick .. .. 1205 D. Willan . . . . 455 Chetham 1'. Hoare .. .. 531 Chetwynd D. Chetwynd .. 297 Chevaux D. Aislabie .. .. 1099 Chichester ». Coventry 851,852 c Table of Cases cited. PAGE Chichester v. Donegal (Marq.) 643 Chidell V. Galsworthy Chidley v. Lee Child V. Douglas V. Giblett Childers v. Childers . Childs V. Monins Chilliner v. Chilliner . Chilow or Clulow, Re Chinnery v, Evans Chinnock v. Ely (Mss.) ■ V. Sainsbury 646 .. 855 1085,1086 1116,1117 292,861,871 .. 241 68,536 4, 6, 7, 23 537, 539, 542 86, 96, 952 94 Chipchase v. Simpson . . 375 Chippendale, Ex parte 422, 716, Chessum v. Dewes Chitty V. Parker Cholmondeley v. Aslibuvton . 1). Cholmely . 95 109 1310 358 82, 84, . Clinton 527, 628, 532, 534, 614,665, 1281 V. Meyrick 590, 843 Chorlton B. Craven .. ^. 1295 Chown V. Parrott , . . . 63 Chowne 1). Baylis ..170,272,647 Christ's Hosp". ». Budgen .. 872 t). Grainger .. 748 Christchurch(Dean)«.Bucks(D.)215 Christian, Goods of .. ..1179 V. Devereux 538, 1249 V. Field . . . . 662 Christie, Ex parte V. Gosling Christmas v. Whinyates Christophers v. Sparke Christopherson v, Naylor Christy v. Courtenay . . Chubb V. Stretch Chudleigh's case Cliurch, Re . . 1). Brown V. Kemble V. Mundy Church Build. See, 228 Churchill v. Churchill V. Dibben . V. Harvey . V. Marks . • V. Shepherd 7^6 ,229 . 1186 . 536 . 1261 32,875 . 315 ..922 169,170 478, 506, 1069 ..163 213, 1265 V. Barlow 52 V. Coles . . 48 163, 837 .. 805 .. 816 .. 1148 .. 603 Churchman v. Harvey 587, 592, 816 — — !). Ireland .. 161 Churton v. Douglas . . 735, 739 Clache's case . . .. ..1317 Clack V. Carlon . . . . 886 Clanricarde (Marq.) i;. Henning 941 Clapham w. Shillito .. .. 90 Clarendon (E.) v. Hornby . . 460 PACE Clarges 1). Albemarle.. •• 358 Clark, Goods of .. ..1177 He .. .. 1131,1316 V. Burgh 324, 333, 348 V. Clark 34 K.Cook S61 V. Henry .. .. 1116 V. Hoskins . . 629, 907 ». Leach 730 V. Malpas .. .. 1080 . — ■ K. May 1064 ». Sewell .. 853,1254 V. Seymour . . . . 795 t>. Smith.. .. 791,795 V. Taylor . . . . 44 >;. Thorp 297 V. Wallis .. .. 1045 Clarke, Re 1177 Trusts . . . . 680 • V. Abbott . . 689, 693 f . Arden .. .. 212 . —u. Bathe .. ..128 K.Berkeley .. .. 1144 K. Bickers .. .. 715 K.Blake .. 774,1287 K.Butler .. 1184,1236 . K.Clarke .. 146,1285 K.Clayton .. .. 461 K. Colls .. 601,1221 K. Elliott . . . . 992 W.Franklin 100,112,355 K.Green .. .. 337 V. Hart . . . . 730 K.Hilton .. .. 1268 K. Jessop •■ .. 591 K.Lubbock .. ..1116 K. Mackintosh . . 955 K. Malpas .. ..290 K.Ormonde .. .. 258 K. Panopticon 638, 1041 K.Parker .. 1145,1146 ». Price . . . . 94 K. Royle .. .. lOtO K. Roystone .. .. 76 K. Scripps .. ..1186 K.Wilson .. .. 1033 B.Wright .. .. 561 Clarkson k. Edge . . 95, 739 K. Hanway . . . . 87 Clavering t>. Ellison 1 108, 1 109, 1 152 K. Yorke .. .. 128 Clay K. RufFord . . . . 1035 Claydon K. Green .. .. 1018 Clayton B. Cookes .. .. 214 K.Corby .. ..140 -K. Hanway .. 87,289 K. Illingsworth . . 477 ^ K. Lowe i. ..1116 liable of Cases cited. ilayton v. Nugent . . V. Wilton (Ld.) ilayton's case . . Heave v. Jones leaver D, Spurling .. ileaving v. Cleaving., llegg, Re V.Edmonson 1). Fishwick V. Rowland Meland'scase. . element v. Maddick . . Ilements v. Hall V. Scudamore PAGE 1210 61, 600 547 517 1152 1156 1219 95, 720, 730 223, 720 242, 786 Add. 438 .. 121 .. 730 ,. 1287 -i>. Welles 95,499,505,1048 lleobury v. Beckett llephane v. Edinb. (Prov.) !lere's case .. llergy Soc, Re lerk 11. Wriglit lifford II. Arundell . • V. Beaumont , . V. Clifford . . V. Turrell llifton V. Burt V. Cockburn . . . Goodban . . 'limie v. Wood ilinan v. Cooke . :iinch i;. Fin. Corp. , llinton V. Hooper 1185 44 .. 825 .. 1208 . . 954 .. 17 .. 1143 623, 822 .. 76 34, 37 60,61 .. 1292 .. 643 954, 955 430, 447 346, 347 - (Ly.)D. Seymour (Ly.) 594 "~ .. Add. 64 .. 914 ..952 230, 380, 381 1237, Add. 26 ..818 ..508 ..248,251,884 811,828 36 ..281 .. Add. 986 .. 822 .. 1044 .. 85,91,982 &c. Co. Add. 155 .. 81 4, 6, 7, 23 1322 202 Clinton's Trust, Re )lissold, Re . . Hive V. Beaumont V. Carew . . V. Clive llogstoun V. Walcott Hose V. Wilberforce Hough V. Bond V. Clough V. French V, Lambert Hough's Estate, Re Hoves V. Audry :lowes V. Beck V. Higginson V. Staff. Pott, ;iubb tJ. Hutson Hulow or Chilow, Re ;lutterbuck v. Clutterbuck !oape V. Arnold ;oard V. Holderness 867, 1194, 1223 !oates v. Coates • . 244, 1250 D.Hart .. .. 1220 :obbett V. Brock . . . . 289 V. Woodward . . Add. 121 XXVI I PAGE .. 610 . . 242 90,1080 .. 387 Cochran t>. Graham • V, Robinson . II. Willis Cock V. Cock . . ti.Cooke 1171 V. Richards . . . . 572 Cockayne «. Harrison .. 1236 Cockburn v. Peel . . . . 898 Cockcroftti. Sutcliffe.. .. 841 Cockell «. Bacon .. .. 676 K.Taylor .. 83,1080 Cocker v. Quayle . . 902, 908 Cockerell D. Barber .. ..1249 II. Barker .. -. 1251 t).Cholmeley796,909,1159 Cocking u. Pratt .. 60,91 Cockroft !i. Black .. ..245 Cocks I). Manners . . Add. 53 Cocksedge V. Cocksedge .. 385 Cockshott ■!'. Cockshott .. 1271 Codrington ii. Foley .. 587, 593 V. Parker . . 075 Coe, Re .. SOS, 911,914, 1150 Coffin t>. Coffin .. ..1158 V. Cooper 815, 1028, 1037 Cofield V. Pollard . . . . 824 Cogan t). Stevens .. .. 112 Cogswell I). Armstrong 5,55,110,1265 Coham v. Coham . . . . 295 Colborne, Ex parte . . . . 422 Colburn K. Sims .. .. 123 Colby W.Gadsden 95, 960, 1017, 1034 Cok-lough I'. Sterum .. .. 990 Cole V. Fitzgerald . . . . 1230 V. GoUe 1301 ». Muddle .. ..254 V. Mules . . . . 1066 V. Scott 1195 V. Sewell 459, 460, 754, 801, 1128, 1330, 1331, 1336 D. Sherard .. .. 1012 V. Turner . . . . 1320 ■!). Wade.. .. 765,781 K.White.. .= ..954 V. Willard . . 854, 855 Cole's Will, Re .. .. 13 Coleby 11. Coleby .. .. 1325 Colegrave w. Dios Santos .. 982 V. Manby 219, 222, 223, 1193 Coleman ti. Foster V. Jones V. Seymour V. Winch . Coles, Goods of V. Bristowe V. Sims .. V. Trecotbick , c2 480 159,160 1290 691 1171 411,412 1070,1085 940, 1033 XXV 111 Table of Cases cited. Coilard V, Sampson Colledge u. Horn CoUen V. Wright Colleton II. Garth CoUett V. Collett V. Preston V. Thompson Colley's Trusts, Re Collier v. M'Bean V. Mason i>. Squire CoUinge, Ex parte Collingwood, Re V. Berklev PAGE 808 54.6 982 358, 580, 1243 1146 83 10 1095 880, 1040, 1012 956, 1033 1313 745 • t). Paice ■ V. Rov/ • V. Russell ■ V. Stanhope Collins V. Archer V. Blantern V. Burton V. Collins V. Evans ^-^^ V. Ewestace V. Jackson • V. Lamport V, Lewis V. Plumb V. Plummer V. Wakeman CoUinson v. Collinson V. Lister V, Pattrick Collis V. Robins CuUum, Ex parte CoUyer v. Ashburner V. Fallon Colman v. Croker D. St. Albans V. Sarel V. Turner Colmore v. Tyndall Colombine v. Penhall Colston V. Morris Coltsman v. Coltsman Colvin !). Eraser Colyear v. Mulgrave Colyer v. Finch Combe v. Hughes Comber v. Graham Coraberbach v. Perryn Commissioners Char. Don. v. Wybrants 528, 530 Pub. Works v. Harley 651 Commons v. Marshall . . 787 Comport t). Austen .. .. 1095 703 393 1279 01,995 . 639 . 778 . 1089 . 80 274' 115,741,951, 956, 1229 90 1218 723 653 34 1071 200 110 835 249, 254 283 1322 416, 439 19, 1254 655 D.) 274 670 280 261 879 271,571 300, 1251 .. 1303 1187, 1188 (Css.) .. 66 685, 1089 4 .. 761 1329 Compton V. Bloxham V. Oxenden 1). Richards Conduitt V. Soane .. Coningham v. Plunkett Connor v. Martin ConoUy ». M'Dermott Conron v. Conron Consol. &c. Co. V. Riley Const V. Harris Consterdine v. Consterdine Contract Corp., Exparte 399; Conway v. Conway ■ 1). Vernon PAGE 1175, 1249 621, 622 .. 133 230, 1251 282 gham of) 737; Conyngham v. Conynj Coode, Goods of Cook, Ex parte V. Addison V. Bath (Mayor V. Cook . . V. Collingridge D. Dawson V. Field . . V. Gerrard V. Gregson . r. Gveves V. Jaggard V, Lambert V. Mirehouse ■ • V. Parsons Cooke, Ex parte w. Benbow V. Blake V, Cholmondeley V. Clayworth V. Cooke V. Craufurd «. Dealey V. Farrand V. Forbes ' V. Fuller ■ V. Green D. Lamotte V. Soltau V. Stationers V. Tombs V. Turner V. Williams ' V. Wilton V. Wright Cookney v. Anderson Cookson u. Bingham V. Cookson Coombe, Ex parte Coomber v. Howard Coombes v. Brookes Coorabes' case Coombs, Goods of 31, 329 843 1321 652 721 901 424,442 593 1226 876 1165 744, 745 . 905 44, 145 . 1295 39, 741 29, 798 84 1225 32,36 .. 60 1223, 1266 1172, 1177 .. 1220 .. 1177 .. 578 .. 719 .. 881 .. 209 .. 88 285, Add. 728 . . 678 .. 102 . . 764 .. 154 383, 390 .. 1002 287 698, 1012 55, 1257 .. 953 .. 1152 .. 364 .. 690 .. 60 70, 860 457 105, 108, 724 .. 632 . . 494 .. 914 .. 765 .. 1178 Co. Table of Cases cited. xxix PAGE oombs V. Queen's Proctor . . 1168 oomer ». Bromley . . . . 718 oomes V. Eiling .. .. 32(3 oope V. Carter . . , . 907 D. Cresswell , . . , 5M ooper, Ex parte ., .. 785 V. Bockett ,. ..1189 B. Cartwright 667, lOei D.Cooper 159, 580, B'H, 842, 1116, 1122, 1286 D.Day .. 1241, 12+2 V. Emery 972, 999, 1006 I'. France . . 184, 458 V. Green . . . . 322 V. Gosling . . . . 942 0. Hubbuck 142, 145, 155 V. Kynock . . Add. 879 V. Jarman . . 93, 254 ■- W.Martin ..811,834,835 ». Macdonald.. .. 915 V. Phibbs . . 90, 91, 1079 V. Reilly . . . . 675 D.Thornton .. .. 1248 D. Trewby .. .. 1051 D. Waldegrave . . 71 V. Wells . . . . 374 D. Woolfit .. ..238 D. Wormald . . . . 554 V. Wyatt .. .. 1149. )oper's Trusts, Re .. .. 1257 >ote D. Boyd 1241 — D. Coote 1322 — K.Lowndes .. .. 1325 — D. O'Reilly .. ..1157 loth V. Jackson . . . . 550 ipe D. Cope . . .. .■ 615 — V. Rowlands . . . . 80 .pland D. Toulmin .. 720, 739 iplpy D. Copley . . 850, 852 ippard D. Allen ' . . . . 907 ippin D. . . .. 328 D. Coppin 1197,1245,1252 D. Fernyhough 1000, 1193 V. Gray rbet D. Corbet D. Maidwell . V. Tottenham. rbet's case . . Trusts, Re . rbyn v. French rdal's case . . irder d. Morgan 381 575 587 296 200 1128 53, 1198 880, 882 677, 1042 irdingley d. Cheesborough 974, Add. 974 rdwell D. Mackrell . . 556, 557 rk, Sic. R. Co 423 — D.Baker .. ..550 — D. Russell . . Add. 470 Cormack v. Copous . . Corneck d. Wadman . . Cornewall v. Cornewall Cornfoot v. Fowke Cornforth d. Smithard Cornish v. Clark •■ D. Cleefe Cornwallis' case Corpe D. Overton . . Corrance «. Corrance . . Correspondent News. Saunders .. Corrie, Re Corsellis v. Patman . . Cort V. Sagar . . D. Winder Cory D. Cory . . V. Gertchen . . Coryton d. Helyar . . Cosens v. Bognor R. Co. Cosnahan v. Grice Cesser v. CoUinge {'.Radford .. Costabidie d. Costabidie Coster D. Coster . ■ Cotching D. Basset Cothay d. Sydenham Cottam V. E. C. R. Co. Cotter V. Layer 814, 816, 828, 994 PAGE .. 1306 .. 1133 35, 1230 90,1081 .. 546 Add. 273 . . 498 .. 169 .. 706 .. 618 Co. D. 120, 121 .. 1301 .. 683 . . 643 .. 1134 .. 62 576, 909 .. 1218 .. 1076 127,128 .. 105S .. 895 .. 867 .. 371 132, 146 .. 1059 .. 892 ■ D. Met. R. Co. Cotterell d. Stratton . . Cottington d. Fletcher Cotton, Ex parte V. Clark r. King Cottrell D. Cottrell . . V. Watkins . . 945 Add. 698 .. 868 .. 632 312 1069, 1183 .. 1007 .. 610 .. 204 475, 992 .. 422 .. 142 .. 1336 .. 612 .. 627 244, 1250 11, 647 .. 297 510, 620 , 1100,1126 162, 292 721, 725, 726 D.Coventry 603,912,1322 V. L. B. and S. C. Rail. Co 947 Coverdale d. Eastwood Add. 552 D.Lewis .. .. 1173 Cowan D. Milbourn .. .. 82 Couch D. Stratton Coulson V. Coulson . . Counter v. Macpherson County Life Co., Re . . Courtauld v. Legh Courtier d. Oram Courtney d. Ferrers . . V. Taylor . . V. Williams D. Wright ,. Courtois D. Vincent ,. Cousins V. Phillips . . V. Schroder . . Coutts D. Acworth Coventry d. Barclay Table of Cases cited. PAGE Cowbridge Rail. Co., Re 469, 663 Cowdry v. Day . . 629, 658 Cowgill V. Oxmantown (Ld.) lOll I). Rhodes Cowles V. Gale Cowley V. Hartstonge D. Wellesley . . Cowling V, Cowling . . D. Higginson . . Cowman v. Harrison t . Cowper V. Mantell V. Scott 1175 1018 105 1151 1229 14,4, 868 824 . 266, 1096 386, 780, 818 .. 281 .. 1195 .. 635 .. 1149 Cowx V. Foster Cox V. Barnard V. Bennett V. Bishop 0. Eockett V. Chamberlain 821, 822, 825, 1042 «. Champneys .. .-. 629 V. Coventon . ■ . . 1058 i;. Dolman 529,541,542 u. Fonblanque .. .. 1151 «. Hickman 706,710,711,727 K. Land, &c. Co. .. 121 ■ D.Matthews .. .. 133 ». Middleton . . . . 85 D.Parker 167,169,887,1113 Cox's case .. .. .. 408 Coxe «. Bassett .. .. 30 J). Day .. .. 791,812 Coysegame, Ex parte 361, 363 Crabb ti. Crabb 863, 874, 875 Crabtree v. Bramble — — — ^ V. Poole Cradock v, Cradock V, Owen V. Piper Cragg V. Taylor Craggs V. Gray Cvallan v. Oulton Cramer v. Bird V. Moore 108 .. 1056 .. 454 167, 262 885, 989 408, 473 .. 630 .. 895 .. 430 600, 602 .. 1202 Cramp v. Playfoot Crampton v. Varna R. Co, Add, 955 Cranley ». Hale .. .,262 Cranswick v, Pearson 15, 16 Craven D. Brady .• .. 1149 Crawford, Re 1313 Crawfurd D. Cocks .■ .• 715 Crawhall's Trusts, Re .. 1132 Crawley «;. Crawley .. .. 5 Crawley's case .. 401,438 Crawshay v. Collins 720, 737, 740, 741 V. Maule 708, 731, 737 Credit Foncier Eng., Re . . 397 Creed «. Creed .. 18,1236 PAGE Creed v. Perry • . . ■ 335 Cregreen «. Willoughby .. 1179 Cremorne v, Antrobus . ■ 1230 Crenver Mining Co. t>. Willyams 682 Cresswell v. Cresswell V. Dewell V. Haines Creswick k. Gaskell Creuze v. Hunter Crewe v, Dicken Creyke's case Crickett v. Dolby Cripps V. Davies «. Jee V. Reade ' V. Wolcott Crisp V. Barber 0. Plate] Cristopher v. White . . Critchett ii. Taynton . . Crockett v. Crockett . . Crockford ti. Alexander Croft «. Croft . . V. Lyndsey Crofts V. Fenge V. Haldane 53,1170 900, 908 .. 1046 .. 1134 .. 299 ,. 1041 417,436 1251, 1254 . . 546 .. 628 ,. 1082 1128,1129 .. 483 Croker v. Hertford (M.) I). Martin Croramellin, Re .. V. Crommellin Crompe v. Barrow Crompton v. Sale Crone v. Odell Crook I). Hill. V. Seaford (Corp.) 1). Whitley . Crooke v. De Vandes I). Watt Crookhaven Co., Re . Croome «. Lediard Cropton V. Davies . Crosbie ti. M'Doual . ». Tooke ». Guion Cross, Re II. Kennington . V. Sprigg V. Wilkes Crosse v. Lawrence . Crosskill v. Bower Crossley v. Clare ■ V. Elworthy . V. Lightowler 135, 145, 153 Grossman v. Bevan . . . . 760 Crosthwaite u. Dixon ., 458 Croton ». Lever .. .. 681 Crouch ». Waller . . , . 388 643 885 1282 867 1034 1179 251 631 147 1174 277 787 1144, 1145 ..772 838,853 .. 1294 1293, Add. 1293 Add. 74 .. 1282 .. 453 .. 265 442, 445 75, 1042, 1044 . 1272, 1273 .. 67 .. 477 ..731 471,652 30,1320 ..309 .. 1222 970, 982 734,885 .. 1315 Add. 273 Table of Cases cited. Croughton v. Blako Crowder v. Clowes V. Stone Crowe V. Ballard V. Crisford Crowther v. Crowther V. Evans Croxton v. May Crozier v. Crozier Cruikshank ». Duffin Crump V. Lambert Norwood PACE .. 1011 .. 1241 1113,1128 .. 1039 .. Ill .. 521 .. 1128 368,369 837,838,1299 Add. 254 .. 154 204 Cruse f. Barley 110,111,1123,1126 V. Nowell . . 678, 967 t). Paine . . .. .. 412 Crusoe d. Bugby . . . . 500 Crutchley v. Jerningham 984, 1033 Cruttwell «. Lye .. 95,739 Cruwys v. Colman . . . . 1 309 Cubitt t>. Smith .. .. 93 Cud t). Butter 1026 Cuff ti. Hall 810 Cull t). Showell ., ..158 CuUey V. Taylerson . . . . 523 Cullin, Re ..293,599,600 Cullingworth «. Lloyd . . 895 Cullwick V. Swindell . . . . 643 Culsha V. Cheese . . . . 1265 Cuming, Re 703 Cumraing, Re .. .. 361 r. Forrester .. 170 Cummins v. Cummins . . 235 Cunningham p. Antrobus .■ 331 t>. Butler .. 1213 ■ «. Moody .. 317 D.Murray .. 1288 Cuninghame v. Anstruther Add. 813, 818, 841 Cunnynghame's Sett, Re .. 775 Cupit V. Jackson . . .'. 10 Curlewis v. Mornington . . 545 Curling v. Austin V. Flight Currant v. Jago Currie v. Larkins t'. Nind V. Pye Currie's case .. Curriers' Co. ■/. Corbett 798, 962, 970, 1036 .. 1035,1037 ..873 1138, Add.nSS 276, 277, 827, 1041 .. i'i,5S,\2i(l .. 402 133,145, 147 Cursham 1). Newland.. .. 1317 Curteis v. Kenrick . . ■ ■ 823 Curtis, Re 598 ji. Auber 646 V. Buckingham (M.) .. 1034 D.Curtis.. .. 299,356 D. Fulbrook .. ..798 PAGE Curtis 1). Graham .. •• 1294 V. Price 194, 202, 206, 274, 879, 881 V. Rippon V. Vernon Curtis's case .. Gust V. Middleton Cutbush V. Cutbush Cutler, Re Curzon v. Belworthy V. Curzon Cutto V. Gilbert 295 . . 245 .. 413 .. 1224 . . 254 367, 368 .. 1081 .. 927 804,1184,1190 D Da Costal). Kew .. .. 1116 Dacre I). John. . .. .. 728 ti.Patrickson 167,261,262,1322 D'Adhemar c. Bertrand 913, 915 Dady v. Hartridge . . Dafforne v. Goodman. . Dagley ti. Tolferry D'Aguilaru. Drinkwater Dakin r. Cope i;. Whimper 34 203 1248 1145 254 276 Dakins v. Beresford . . . . 375 Dalbiao v. Dalbiac . . . . 764 Dalby ». In. & Lon. Assce. Co. 647 Dale «. Lister .. ..1029 Daley v. Desbouverie . . 1 145 Dallow, Re 1173 D'Almaine v. Boosey . . 122 V. Moseley 869,1041,1223 Dalton, Re Daly V. Beckett V. French Daly's Settlement Damer ». Portarlington Dand v. Kingscote Dane v. Kirkwall Daniel v. Adams V. Anderson V. Arkwright «. Dudley 761 V. Grace V. Gosselt V. Newton V. North V. Warren Daniels v. Davison 577 786, 787 .. 587 .. 808 .. 643 .. 144 .. 638 933, 935 132, 141 776,816 ,1216,1312 . . 494 .. 1133 .. 137 .. 115 992,1056,1059 . . 438 Daniell's case DanversD. Clarendon (E.) 1280, 1281 Darbison r. Beaumont .. 1278 Darbey ti.Whitaker 95, 741, 951,956 Darby ». Darby .. ..724 Darcy, Re . . . . 295, 297 D. Maddock •. •• 574 xxxu Table of Cases cited. PAGE Dare w. Tucker . . 972, 1071 Darke ». Martyn .. 251,899 I). Williamson 633, 638 Darkin v. Darkin . . . . 377 Darley 1). Darley .. 373,1185 V. Langworthy .. 1185 Darlington i;. Hamilton 958, 959 V. Pulteney . . 806 Darnley(E.) I-. L. C. D. Rail. Co 75 Darstonu. Orford (Ld.) .. 214 Darvill w. Terry .. 271,614 Dashwood ». Biilkeley .. 1115 ?'. Peyton.. 157,1270 Daubeny i). Cockburn 274', 293, 763, 817, 813 Daun V. Cit. Lon. Brew. Co. . . 690 Davall V. New Riv. Co. . . 887 Davenport v. Bishop 561, 1116 J). Coltman 111,112, 1223 V. Davenport 565, 1151 ■ «. HinchclifFe .. 611 .. 1317 .. 262 Add. 161 . . 677 761,762, 773, 820 .. 120 1128, 1131, 1281 .. 933 .. 381 .. 1303 .. 1178 . 832,1178 .. 108 . 1215, 1323 917, 1033 1). Oldis Davers v. Davers Davey v. Wietlisbacli V, Durrant David's Trusts, Re Davidson, Ex parte V, Dallas • V. Gardiner V. Wood Davies, Ex parte Goods of Re .. 1). Ashford — V. Bush — V. Cooper V. Davies 287, 557, 562, 575, 597, 607, 819 — V. Fisher 719,751,752, 1119 D. Goodhew .. 105,106 — V. Hodgson 380, 736, 739, 892, 909 V. Huguenin . , V. Lowndes . . V, Marshall V. Morgan V. Nicolson . V. Otty ' V, Sear V.Thomas v. Thorns V. Thorjiycroft ». Vernon . , Davies's Will 771,778 192, 1151 133. 145, 116 1234 1252 863 135 628 820 323 643 1289 Davis, Ke PAGK 704,1012 ». Angell 891,913,1109, 1144, 1147 622, 669 1203, 1296 .. 233 V. Barrett V. Bennett V. Chanter V. Davis w. Dendy V. Drury V. Dysart V. Haycock . . V, Jenkins r. Kirk V. Leo . • V. Marlborough V. May V. Norton . . v. Shepherd . . V. Spurling .. V. Symonds . . V, Tollemache V. Turvey — V. Uphill Davison v. Gent . . V. Stanley , . Daw V. Terrell Dawe V. Betts.> Dawe's case .. ., Dawkins v. Tatham • • Dawson v. Bourne . • V. Brinckman V, Clarke i>. Gaskoin V. Jay . . V. Kearton V. Killett -^— — V. Massey V. Paver V. Prince V. Terrell 1). Thompson V. Thorne Day ti. Day V. Luhke V. Merry 1). Newman 1). Trig . . u. Wells.. Dayrell v. Hoare Deacon v, Colquhoun V. Smith Dean v. Allen V. Gibson V. Handley Deane v. Test.. Deare v. Soutten Dearie v. Hall .. 1173 .. 672 . . 484 .. 1006 .. 412 45 .. 185 .. 1156 655, 656 .. 674 .. 1152 476,1068 .. 249 .. 1044 934, 1084 .. 461 62, 841 .. 510 .. 510 .. 632 1060, 1037 416, 443 .. 1250 .. 374 .. 970 262, 869, 906 .. 1229 .. 302 .. 36 .. 1102 .. 287 .. 1057 .. 329 .. 632 .. 304 .. 262 15,303,575,679, 1220,1237 .. 1018 1158,1159 .. 1033 1213, 1267 .. 91 .. 786 .. 872 .. 608 .. 240 1227,1229 .. 1115 .. 1134 .. 315 .. 648 Table of Cases cited. XXXlll PAGE Dearman v. Wyche . ■ • . 537 De Beauvoir v. De Beauvoir 105, 1279 De Beville's case . . 437, 438 Debeze ». Mann .. .. 849 De Bode's case .. .. 71 De Brassao v. Martyn . . 96 DeerhurEt(Ld.)f.St.AIbans(D.)7S4 Deeth «. Hale .. .. 107 Defflis V. Goldschmidt . . 12S8 Deg V. Deg 33 De Garagnol «). Liardet .. 1128 De Gendre ». Kent .. .. 1230 De Grey 1). Richardson 183,317,318 De Havilland v. De Saumarez 453, 555, 564 De Hoghton v. Money 82, 274 De Huart 0. Harkness .. 807 Delacherois B. Delacherois .. 1224 De la Garde t). Lempriere .• 360, 369, 370 De Lancey, Re . . 103, 104, 1 05 Delano V. Delane .. •• 872 De la Vega I). Nianna .< 71 Delapole i;. Delapole . . •• 1155 De la Salle v. Morrat . . 261 Delft). Delamotte .. ..123 Delmare ». Robello .. .. 1208 Delinare's case .. ■• 413 Demainbray v. Metcalf . . 692 De Manneville v. Crompton 309, 310,313 u. De Manneville 299 De Mattes u. Gibson .. .. 653 De Medina «. Norman .. 1022 Denby, Re 1249 Dendy v, NichoUs . . • . 505 — V. Simpson . . 1001, 1002 De Nicholls v. Saunders . . 671 Dening ». Ware ..36,280,281 Denn K. Bagshaw .. 1127,1329 Denne v. Light . . . . 962 Dennett D. Pass .. .. 10 Dennis, Re 206 Denny t). Hancock .. 960,964 Dent !!. Allcroft .. .. 52 V. Auction Mart Co. 140, 148 V. Bennett V. Clayton V. Dent . . Denton v. Davies — : ». Denton • V. Donner V. Macneil t). Manvers .. De Oechsner v. Scott De Pass's case . . De Pradel, Goods of . • 287,288 352 208 863 891,892,1158 628 405 52 383 415 1168 PAGE Depree v. Bedborough . . 980 Derbishire v. Home . . 233, 384, 909 De Ribeyre V. Barclay .. 717 Dering II. Kinaston .. .. 604 De Roo t). Foster .. .. 66 Desbcdy ». Boyville . . .. 1143 Deshais, Goods of .. .. 1165 De Tastel v. Shaw . . . . 245 De Themines t). Bonneval ..39,44 De Trafford v. Tempest .. 1269 Dettmar v. Met. Prov. Bank . . 287 Devaynes v. Noble 717, 738, 1230 V. Robinson 638, 907 Deverell I). Boulton .. .. 1043 Devese i'. Pontet . . . . 853 De Vigny, Goods of .. .. 1165 Devine B. Holloway .. .. 525 Devisme, Re 873 e. Mellish .. .. 1315 «. De Visme .. 977 Devonshire (D.) B. Eglin .. 132 Devoy u. Devoy .. .. 875 Dewar B. Maitland .. 164,165 De Weever b. Rochport . . 598 1178, 1179 .. 988 De Winton v. Brecon (Mayor) 676 DewcU, Re B. Tuffnell De Witte v. De Witte D'Eyncourt v. Gregory Dicconson v. Talbot . . Dick V. Lacey Dickenson v. Teasdale 1295 238, 928 797, 947 .. 1315 528, 539, 759, 798 18 350, 1155 .. 83 .. 588 . . 604 Can. Co. 149 .. 775 .. 1173 .. 711 Dicks r. Lambert . . 262, 1 229 Dickson B. Hook .. .. 384 B.Robinson .. .. 353 V, Swansea Rail. Co. 647 Dickson's Trusts 1113,1142,1152 Dickin b. Edwards . . V, Hamer Dickinson v. Burrell . . . — V, Dickinson B. Dillwyn . . B. Gr. June V. Mort B. Stidoph , B. Valpy . Lambert Digby B. Craggs Legard Dighton V. Withers . Dikes B. Blake Dilkes V. Broadmead Dilley b. Matthews Dillon B. Coppin V. Mountcashel (Ly.) 298 V. Parker . . 156, 164, 165 Dimes B. Gr. Juno. Rail. Co. 211 1). Scott .. ..113 658 .. Ill 667,683 .. 985 247, 1252 1216, 1292 280, 282 XXXIV Table of Cases cited. PAGE PAGE Diramock v. Atkinson .. 365 Doe u. Bettison 788, 790 tr H^ll^f^ 957, 958, 960, 967 V. Bevan V. Biggs . . 501 .. 880 Dimsdale d. Dimsdale 62. 291 V. Bingham ..520 Dingwell ti. Askew . . 828, 1242 V. Bird .. .. 812 Dinham v. Bradford 720,726, 741 V. Birkhead .. 1132,1316 Dinn v. Grant. . • .. 1077 V. Blackburn ..184 Dipple V. Corles . . 285 .. 519 Disderi, Re . . . . 402 1). Bolton ..880 Disney v. Cross .. 1237 V. Bottriell . . 276 Di Sora v. Phillips . .. 71 V. Bousfield .. 212 Dix V. Biirford 248, 377, 893, 1247 V. Bower .. 1213 K. Reed . . . 510, 1249 V. Bramston 518,525 Dixie V. Wright .. 102 V. Brazier ..1271 Dixon, Ex parte . . 746 V. Britain 769, 770 .. Tl™**.. .. 518 .. 1313 . 518,1076 Add.6Z\, V. Brown t). Burdett V. Burnsall V. Burro ugh .. 1205 808, 809 .. 1299 V. Muckleston '.'. .. 791 685 I). Burt .. ..491 . . 374 208, 209 .. 415 V. Burville V. Cafe . . V. Calvert .. 1318 881,925 Dixon's case . . 784, 785 Dobbyn v. Adams .. 806 V. Carter 482,581 Dobell V. Hutchinson 958, 1021 V. Catomore .. 1011 Dobson, Re . . .. 1172 I). Cavan . . 784 .. 1222 .. 73 673, 697, 698 400,414 V. Chaffey V. Chamberlain ■ I). Chapman V. Charlton .. 1279 .. 992 11 Tnnrl filO .. 1223 Dobson's case .. 1295 Docker v. Somes 252,885 V. Clark . . .. 216 Dod V. Dod . . .. 557 V. Clarke ..476 Dodd 1). Holmes .. 152 V. Clayton .. 1274 Dodds V. Hills . . 905 V. Coleman .. 1273 Dodgson's Trusts .. 1136 V. Collis . . .. 1297 Dodkin v. Brunt .. 913 V. Collins .. 492,1210 Dodson V. Sammel . 242, 258 V. Colyear .. 1275 Doe V. Allcock .. 1219 11. Cooke .. 518 V. Allen 499, 50 6, 1205, 1207, V. Coombes ..523 1208 V. Cooper .. 1298 V. Amey. . .. 481 V. Courtenay 510,784 V. Andrews .. 1013 V. Cox . . . . 482 V. Angell 515,521, 522 V. Cranstoun .. 1267 ■ V. Applin .. 1298 V. Creed . . .. 789 V. Ashhurner . .. 476 V. Crisp . . ..1109 !). Ashley .. 1213 V. Cundall .. 1273 V. Baker. . . . 506 V. Dacre . . ..1104 V. Ball . . .. 270 D. David . . 506 V. Bancks .. 505 V. Davidson .. 1001 1). Bannister .. 1278 V. Davies .. 1015,1179 V. Barnard .. 518 y. Day , , 676,785 V. Barthrop .. 882 V. Duesbury .. 1306 .. 1109 V. Earles .. 1224 . . 482 J). Edlin .. 1199 I). Beckett 511,621, 524 V. Elvey .. 204,1299 «. Bell .. 480,481 ». Evans .. 169,1174 V. Benjamin .. 475 V. Ewart 880,1302,1303 .. 1260 V, Eyre ■ . 587, 838, 1336 Table of Cases cited. XXXV Fleming . Fonnereau . Forwood . Fossick I. Foster '. Fricker 1. Frost . . I. Fyldes I. Gallini I. Galloway 1. Garrod 1. Giles I. Gladwin '. Glover 1. Gofif . . I. Goldsmith ). Goodier ). Gower '). Grazebrook I. Greening Groves PAGE .. 1309 .. 203 510,784 .. 1266 . . 4'76 .. 1274 1281, 1309 .. 1201 , 1296, 1307 .. 1068 .. 1295 .. 676 77, 496, 506 .. 1148 . . 204 . . 201 .. 660 .. 522 .. 787 .. 1209 519 ■ V. - V. ■ V. - V. - V. ~ V. - V. - V. - V. - V. - II. - V. - V. - V. - V. ~ V. - V. - V. - V. - II. - II. - II. - V. - II. - I). Guest 499 Gwinnell .. .. 356 Halcombe .. ..787 Halley .. .. 1307 Hampson .. .. 1002 Hardy .. ..1205 Harris 53,876,877,1186 Harvey 201', 784, 788 Haslewood .. ..1112 Hawkins . ■ • • 51 Hensage . • . . 928 Hiscocks 1206, 1207, 1208, 1210 Doe V. II. II. Hole .. Holmes Holton Horn fray Horrocks Howell Hulse . . Huntington Hurrell Ingleby Ironmonger Jackson .Jenkins Jersey.. Jessop Joinville Jones .. Kennard Knight Knovsles Laming Langdon Langton Lawley 788,790 .. 1273 1205, 1209 .. 880 .. 523 .. 1335 .. 523 .. 181 .. 1223 .. 506 .. 881 .. 992 . . 486 .. 1209 .. 1220 .. 1202 . 45, 225, 506 .. 511 .. 292 .. 1289 . . 204 . . 225 .. 1210 .. 523 PAGE Leeds, &0. Co. .. 992 .Lewis.. .. 313,761 Liglufoot .. ..537 Liversedge . . • ■ 520 II. I.landafr(Bp.) •• 176 V. Lock 492, 786, 788, 789, 791 V. Lucan.. . . . • 1224 V. Lucraft .. .. 1307 D. Ludlam .. •• 1266 II. Luxton .. . . 207 II. Lyde 1304 K. Lyford .. 1212,1213 V. Manning .. .. 276 II. Martin 181,350,829,830, 1209,1212 ■I). Massey .. 512,537 ■II. Matthews .. .• 789 • V. Meux.. . . •• 505 II. Meyler . . . . 789 ■ V. Milborne .. .. 807 • II. Mills 1170 ■ D. Milward .. .. 510 -D.Moore.. 521,1111,1121 • r. Morgan .. .. 1334 -II. Morse.. .. 482,789 -11. Moses 276 - II. Moulsdale . . 225, 520 - II. Mulgrave .• .. 1306 -v. Needs 1206 -II. Nepean 518,1013,1132, 1133 - II. NichoUs .. .. 881 - V. North Staff. R. Co. .. 945 -II. Nowell .. 1122,1124 - ti. Oxenden 1205, 1209, 1213 -II. Oxenham .. 519,522 521 II. rage . . II. Palmer .. 1189 II. Parkin .. 1211 II. Parratt .. 454 11. Passingham . . .. 923 ti. Peach . . .. 809 II. Pearsley .. 1002 u. Pearson .. 1148 II. Permewan .. 1275 II. Perratt .. 1278 II. Perryn .. 1306 ti. Phillips .. 891 II. Poole . . 510,784 D. Pott . . 634, 643 D. Powell .. 475 II. Pratt . . .. 1223 11. Price . . 225, 482 II. Prosser .. 523 II. Eadcliffe .. 788 11. Redfern 167,170 II. Reid . . .. 500 xxxvi Table of Cases cited. PAGE Doet). Rendle .. 786,789 V. Ries 475 V. Roach .. .. 1335 V. Roberts . . 4'85, 1213 1). Rock .. .. 521,530 t). Rogers . . . . 788 V. Ross 1010 V. Rout . . V, Routledge I). Rucastle V. Rusham V, Rutland V. Sandham V. Saunder !). Scarborough 1). Scudamore V. Shotter 1). Shipphard V. Simpson V. Sloggett y. Smaridge V. Smith .. y. Spratt. . V. Stallion 0. Stenlake V. Stephens u. Stone . . 1). Stricldand 1). Sturges y. Summersett '1. Taniere V. Taylerson '). Taylor '), Thomas ;. Thompson 1. Tidbury •>. Tofield >, Turner •>. Vardill ). Walbank I. Walker ). Waterton '. Watts . . I.Webb .. '. Webber I. Weller I. Westlake I, Wetton ). Whichelo ). White ). Wilkinson >. Wiilan I. Willetts ', M'illiams I. Wilson I. WoUey '. Wood . .. 1222 .. 277 202, 1299 .. 277 .. 791 .. 790 .. 1001 . . 927 .. 1329 .. 798 . 1127,1152 216, 881, 882, 1294 .. 1203 .. 481 503,791 .. 1280 967, 992 .. 1218 788, 789, 790 .. 1084 .. 1189 .. 1247 . . 483 ..792 .. 518 .. 1218,1306 .. 482,1218 .. 521 ..512 .. 1224 482, 483, 1218 ..185 .. 881 .. 1192,1222 . . 49 482, 792 .. 1317 276,1336 ..792 .. 1208 .. 1303 .. 197 1224, 1274, 1288 .. 1127 ..881 .. 1225 ..536 484, 788, 789, 791 .. 1011,1013 ..482 Doe V. Woodbridge V, WoodrofFe V. Yates . . Dolan V. Macdermot Dollen V. Batt.. Dollond 0. Johnson Dolman v. Nokes Doloret v. Rothschild Dolphin V. Aylward Dolton V. Hewen Dommett v. Bedford Domvile v. Baker Domville v. Taylor Don, Re .. V. Lippman Donaldson v. Donaldson Doncaster v. Doncaster Donellan v. Read Donisthorpe v. Porter Donne v. Hart Donovan «. Needham Doo V. Brabant Doody V. Higgins Doran v. Wiltshire Dorin v. Harvey Dorling v. Claydon Dormay v. Borrodaile Dormer v. Thurland Dorsett ». Dorsett Doswell y. Reece Douce, Re .. V. Torrington PAGE 499 192,526 929, 1151 .. 43 .. 494 35, 244 .. 947 1018,1026 37, 276, 277 .. 1273 .. 1150 .. 1243 .. 1227 185, 186 .. 70 283, 284, Add. 24 228, 801 73,510 . . 623 .. 325 .. 1256 1113,1199 .. 1279 1067,1159 .. 1035 .. 1015 30, 612 .. 806 .. 1150 464, 466 .. 1177 30.851 Doughty D. Bowman 502, 503, 504, ^ ^ 508 ■ !). Bull Douglas t). Andrews ■ V. Archbutt V. Chalmer V. Congreve ■ V. Cooper ■ V. Culverwell V. Douglas • V. Down •!). Dysart (E.] ■ t). L. & N. W V. Russell V. Willes Dove V. Everard Dover v. Buck Dowell V. Dew Dowle V. Saunders Dowley ». Winfield Dowling V. Bolton V. Dowling . V. Hudson .. 106 .. 1132 . . 886 .. 1117 113, 201, 203, 205, 226 . . 807 627,628 .. 1235 .. 1211 .. 214 E. Co. 944, 1031 .. 646 .. 850 .. 235 .. 940 78,477 .. 685 .. 1013 .. 623 .. 1304 .. 30 Tabic of Cases cited. xxxvii )owUiig V. Maguire • . V. Tyrell )owling's Trusts, Re )own V. Worrall )owne (Vise.) ». Morris )ownes I). Grazebrook II. Jennings . . V. Ship . . V, Timperon . . )ownshire(Marq.) v. Sandys Jowse V. Percival . . Jowset ». Sweet .. 1215,1216 )owson V. Bell .. .. 352 V.Salomon .. .. 692 lowtie's case . . . . . . 168 )oyle ti. Blake .. 235,892 Drake v. Drake 1208, 1215, 1216 v. Whitmore PAGE .. 938 .. 1256 Add. IIIG .. 4t 167, 168, 663 .. 679 .. 313 . . 403 .. 805 1158 237 800, 985 Jrakeford i: Drakeford 1 1 29, 1 198 Jranti). Vause .. 101,995 Jrayson !'. Pocock .. .• 1011 3revon i'. Drevon .. ■■ 1165 Drew V. Bayly .. •• 484 V. Lockett . . . . 693 V. Martin 872, 873, 874 Jrewe v. Bidgood • • . . 855 i: Corp . . . . 957 r. Hanson .. ,. 963 Drewett v. Pollard . . . . 6 Drewry i: Thacker . . . . 258 Drinkwater I'. Combe .. 624 ■ — V. Falconer . . 1235 Drosier v. Brereton . . . . 900 Druce V. Denison 323, 324, 358, 568 Drummond, Goods of V. Drummond , Tracy 1174 70 467, 861, 999 438 Drummond's case Drury v. Man 1065 — V. Molins . • . . 504 «. Smith 129 Drybutter v. Bartholomew 178, 350 Dryden v. Frost . . 1059, 1077 Drysdale 1). Mace .. •• 971 V. Piggott . . . . 647 Duane, Re 1205 Dubber v. TroUope 1 82, 1 90, 1 275 Duberley r. Day .. .. 335 Duckworth, Re .. .. 441 Duddell V. Simpson . . 979, 980 )udden 1'. Clutten Union .. 150 )udley «. Folliott .. .- 1083 )ufaur V. Prof. Life Soc. 647, 648 )ufFj). Dalzell .. ..807 D. E. T. Co 716 Duffield ^). Duffield 1106,1121,1124 D. Hicks or Elwes . . 128 PAGE Duffy, Se 362 Dugdale v. Dugdale .. Add. 34 u. Meadows .. 801,1053 V. Robertson . . 136, 152, 153 Duggan V. Kelly Du Hourmelin v. Sheldon Duke V. Andrew .. V. Barnett V. Doidge Dumas, Ex parte Dummer v. Pitcher Dumper v. Dumper Dumpor's case Duncan i'. Campbell . . v. Duncan V. Louch r. Watts Duncombr. Duncomb Duncombe r. Greenacre Duncuft V. Albrecht Dundas, Re . . V. Blake r. Dutens V. Murray Dundee (Mayor) v. Morris (Harbour Trustees) Dougall 515 Dundonald (E.) v. Masterman 717 Dungannon(Ly.) v. Smith 228,749, 755 Dunk V. Fenner Dunkley v. Dunkley Dunlop V. Higgins Dunn V. Bownas V. Green.. V. Snowden Dunnage v. Wliite Dunne v. Doran V. Dunne 1147 103 400 968 778 883 160,873, 875 875 506 378,568 1234 137 1246 350,351, 1332 360, 361, 367 950 1173 528 553 1097 53 202, Dunstan v. Patterson Dunster r. Glengall (E.) Duplessis V. Att.-Gen. Durance, Goods of Durell r. Pritchard . Durham v. Crackles . (E.) V. Legard V. vVharton . Durham's case Durnford v. Lane Durour v. Motteux . Durriint r. Friend Du Vigier v. Lee Dwyer v. Collins Dyas V, Cruise Dyer v. Dyer 1298 367 952 52 620 1133 61,869 243, 530 1152 697 472 1169 1183 96, 146, 147 .. 360 964, 975 847, 848 409 574 111 1243 541 1062 788,815 102, 870, 872, 873, 874 Table of Cases cited. PAGE Dyer «. Hargrave 961,977,992 Dyers' Co. v. King . . . . 147 Dvke V. Bendall . . 580, 1076 Dykes v. Blake . . 962, 964 Dykes' Estate, Re .. ..816 Dyner. Nutley .. 492,1068 Dyose i). Dyose ■. .. 1245 Dyot i>. Morgan . . . . 484 Dyson V. Hornby . ■ . . 976 V. Morris . . 680, 682 E. Eaden v. Firth . . . . 97 Kads D. Williams .. 1018,1033 Eager t). Barnes .. .. 717 Eagle D. Charing Cross Co. . . 147 Ins. Co. .. ..421 Eagles V. Le Breton . . Add. 1314 Eales J). Cardigan (E.) .. 16 Eames D. Goodwin .. .. 457 Eardley I). Owen .. .. 611 Earl's trusts, Re .. 996,1181 Earle ». Barker .. .. 811 . V. Bellingham 17, 539, 1254 V. Hopwood . . . . 83 V. Wilson .. .. 1293 Earlom D. Saunders .. .. 106 Early v. Benbow 1239, 1242, 1288 1). Middleton .. .. 1288 East V. Rval 888 r. Twyford .. 564,1295 Eastahrook u. Scott . . . . 309 Easterby ti. Sampson . . . . 502 E. C. Rail. Co. v. Tufnell . . P45 East Gloue. Rail. Co. v. Bar- tholomew ..Z97,Acld. 402 E. Ind. Co. V. Atkyns . . 627 D.Paul .. .. 545 Easton «. Pratt . . . . 790 Eastwood t'. Avison .. .. 1302 V. Kenyon . . . . 67 V. Vinke . . . . 853 Easum 11. Appleford . . 831,1258 Eaton ». Barker .. 566,1110 !). Bennett .. .. 616 u. Sanxter .. .. 1066 V.Swansea .. .. 142 D. Watts .. ..865 Eaves D. Hickscn .. 250,892 Ebbett's case .. ..399 Ebrand t). Dancer .. .. 873 Eccard t). Brooke .. .. 1220 Eccles I). Birkett . . ..1097 B. Cheyne .. ..833 Echliff V. Baldwin .. .. 1034 Eckersley v. Piatt . Eddel's Trusts, Re . Eddels V. Johnson Eddleston v. Collins . Eddowes, Re . . V. Eddowes. Edei). Knowles 273,276,631,632 Edes !). Edes . . . . •• 365 PAGE .. 1187 1125,1333 .. 34 213, 346, 642, 682 S'15, 1094 888, 1285 V. Strafford Edgell V. Day.. Edgeworth v. Edgcworth Edgington's Trust Edie V, Babington Edmonds 2). Goater .. ■ ■ ti. Peake . . V. Townsend Edmondson's estate. Be Edmunds v. Downes . . !). Low . . V. Povey . . ——^^ V. Vessey . . V. Waugh . . Edwardes D. Jones Edwards, Re . . 0. Alliston V. Barnes V. Champion . . V. Drake 11. Edwards . . V. English V. Fashion V. Fidel V. Freeman . . 47-5 .. 1023 .. 582 .. 578 .. 763 .. 546 .. 251 .. 366 953, 1095 .. 545 .. 854. ;. 692 .. 1292 542, 1207 .. 453 .. 628 559, 1316 .. 1222 208, 455 .. 984 1115,1116 .. 644 .. 948 .. 870 265,266,570 «. G. Juno. Rail. Co. .. 394 V. Hall . . 50, 52, 55, 1 233 ■ D.Hammond.. 1110,1121 V. Harvey . . . . 936 V. Janes . ■ • ■ 547 B.Jones ..128,282,373 V. Lewis . . . . 224 D. M'Leay .. .. 1038 ■ V. Martin . . 649, 666 D. Martyn .. .. 381 I). Meyrich . . . . 939 ». Millbank . . . . 787 D.Morgan •• .. 164 V. Pike . . . . 54 D. Saloway .. .. 1197 D. Starben .. 232,271 D. Tuck . . 5, 6, 7. 109, 110 D. Warwick (Ctss.) 20,104 D.Wickwar .. ..969 Edwards-Wood v. Majoribanks 1001 , 1029 Edye ». Addison .. .• 605 Eedes D. Eedes .. .. 371 ^ PAGE Egerton v. Browiilow (E.) &6i, 1107, 1108 D.Jones .. .. 1036 Egg V. Devey 1107 Egliii D. Sanilersoii .. .. 888 Eilbeck V. Wood . . . . 828 Eisdell't). Hatnmersley .. 770 Eland v. Baker . . . . 84a 1). Eland.. 254,639,1060, 1067 Elborne ». Goode Eloock K. Mapp Elgar, Re Elibank v. Montolieu Elkington's case EllardK. LlandafF(Ld.) EUicombei). Gompertz Elliot V. Elliott T'able of Cases cited. Dixon. XXXIX 3 167, 2C2 .. 917 .. 863 .. 401 .. 947 1204,1307 .. 1286 V. Ince . . 638, 933, 938 Elliott, Goods of .. ..1168 V. Brown . . . . 740 ■ • V. Collier . . . . 26-5 V. Cordell . . 338, 362 V. Davenport.. 1196, 1197 n. Edwards .. .. 1021 ■ V. Elliott . . . . 820 O.Fisher .. 100,107 V. Johnson .. .. 500 «. N. E. Rail. Co. .. 153 R. E. Assur. Co. Add. 728 919 ..335 .. 1185 424 115, 1194, 1235 - V. Lewis.. . . .. 353 -r. Maxwell .. ..3,4,5 - V. Nimmo . . . . 67 -». Selby.. .. 43,1300 -V. Smith 1178 V. Walker Ellison V. Airey V. Ellison V. Elwyn .i). Thomas V, Wright Ellston D. Deacon Ellworthy v. Wickstead Elms 1). Elms .. Elmsley v. Young Else V. Barnard 1). Else .. .. Elsey V. Lutyens Elton V. Elton V. Sheppard Elves V. Crofts Elvy V, Norwood 1234, 1237 .. 1285 280, 292 331, 332 .. 778 .. 698 .. 714 .. 368 .. 1186 .. 1309 954,988 ..987 ..696 461, 797, 1006, 1142 ..761 .. 82 541,691 PAGE Elwell «. Crowther .. .. 149 Elwes D. Maw 238 i;. Causton .. .. 1237 Elwin V. Elwin 1098, 1130, 113.5 - V. Williams Elworthy v. Bird . . Ely (Dean oQi). Bliss V. Cash Emanuel v. Constable Embrey v. Owen Emery v. England V. Wase Ernes V. Hancock Emmerson v Heelis . . Emmerson's case Emmet J). Clark V. Tottenham . . 332 .. 63 .. 515 515 1167, 1170 .. 149 778, 1289 .. 933 .. 1102 .. 954 .. 414 .. 911 . . 629 1135, 1138 Emperor ». Rolfe Emuss V. Smith 37, 101, 995, 1195 1267 Engellt). Fitch .. ..1024 England t). Curling .. .. 712 . — ■ — !). Downs .. 310,312 ». Lavers '..162,813,833 D. Tredegar (Ld.) .. 258 English, Goods of .. ..1187 & Irish, &c. Society.. 710 Ennor v. Barwell .. .. 149 Enoj). Eno 1010 .. 1325 263, 1163, 1229 .. 50 425, 429 529, 547, 905 421,429 .. 1090 .. 1255 . 1255 V. Tatham Enohin v. Wylie Entwibtle v. Davis Era Ins. Co., Re Ernest v. Croysdell V. Nicholls .. V. Vivian . . Errat v. Barlow Errington v. Chapman Erskine, Re 367 Erving i). Peters .. .. 246 Esdaile v. Oxenham . . . . 1065 V. Stephenson 962, 976,998, 1031 Espey 1). Lake .. .. 1081 Espin V. Pemberton 650, 685, 1061 Esron V. Nicholas .. .. 933 Essell «. Hay ward .. .. 732 Essex J). Atkins .. 373,961 V. Baugh . . . . 696 V. Clement .. .. 1130 K.Essex .. 768,769 Estate Co., Re .. ..397 Estwick ». CaillaUd .. ..894 Etches w. Etches .. .. 1104 Etty V. Bridges . . . . 653 Europ. Co. V. E. Mail Co. . . 653 Eustace v. Dublin, &c. Co. 439, Add. 402 xl Table of Cases cited. PAGE Eustace v. Keightley. . . . 581 Evans, Ex parte . . . . 606 , Ee 257 c. Angell .. .. 1209 V. Bicknell 309, 892, 1059 1). Bremridge. . .. 98 ■ D.Brown .. 168,247 V. Carrington 378, 387, 569, 617 V. Coventry V, Crosbie V. Dallow ' V. Davis 1). Edmonds V. Elliott V. Evans ■ V, Hillicr V. Jackson - V, John • V. Jones V. Massey V. Rosser !). Salt.. V. Saunders 1), Scott V. Vaughan — — ^ V. Williams V. Wood V. Wyatt Evans' case . . Eve, Ex parte.. Evelyn v. Evelyn 13. Lewis • «. Templar 409, 728, 893 .. 1224 .. 1186 .. 1293 90, 387 671,677 501, 823, 840, 1207, 1129 7 88, 255, 800 ..877 194, 272, 1079, 1268 .. 1293 ,. 1139,1141 .. 1280 802, 803, 804 .. 1101 .. 1083 . . 467 411,412 310, 1322, 1326 402,437 . . 402 .. 588,1323 ..676 .. 280 Evers D. Challis .. 755,1335 Ewartf. Cochrane .. 134,135 V. Ewart 602 D. Graham .. .. 174 Ewens i>. Addison 1108, 1109, 1145, 1146 Ewer V. Corbet 246, 254, 1066, 1247 Ewing !). Osbaldiston .. 1077 Exeter (Bp.) «. Ward . . 370 Exton V. Scott .. ..1011 Eyre, Ex parte .. . . 718 II. Burmester . . . • 629 !). Green.. .. .. 581 ». M'Dowell .. 467,631 V. Marsden 6, 110, 567, 1132 V. Munro . . • • 84 V. Parker .. .. 1237 V. Shaftesbury (Ly.) . . 296 Eyre's case .. .. ., 416 Eyton V. Denbigh, &c. Co. .. 10 PAGE Fain ». Ayers . . .. 1006,1071 Faine v. Brown . . . . 89 Fairley v. Tuck . . . . 355 Fairthorne v. Weston . . 726 Falcke D.Gray .. .. 1026 Falkner D. Butler .. .. 831 D. En. Rev. Int. Soc. . . 678, 978, 1041 D.Grace .. .• 1326 Family Endowment Soc, Re 430, 738 Fane, Ex parte .. .. 1168 ■ -D. Spencer .. ..1000 Faning, Re 902 Farebrother «. Simmons . . 954 V. Wodehouse . . 690 Farington v. Parker . . • • 375 Farley v. Bonham . . • • 356 Farmer v. Bradford . . . • 823 ■ D. Dean . . . • 940 D.Francis .. .■ 1093 D.Mills .. .. 18 D. Smith . . . . 665 Farnham d. Phillips . . . . • 848 Farquhar v. Hadden . . . • 742 Farquharson D. Cave . . . . 129 Farrall D. Davenport.. .. 954 Farran d. Beresford . . . . 538 Farrant d. Blanchford . . 909 D.Nicholas .. .. 1299 Farrar v. Barraclougb . . 900 D. Winterton(E.) .. 100 D. Winterton (Ld.) . . 994 Farrer 11. Barker .. ..1137 D. Nightingal .. 1022 K. Winterton (Ld.) .. 1045 Farrington d. Knightly 232, 262 Farrow w. Rees .. .. 1058 Paulding's Trusts, Re .. 1261 Faulds D. Jackson .. .. 1179 Faulkner d. Bolton . . . . 664 D.Daniel .. 233,538 Faversham (Ld.) v. Watson. . 562 (Mayor of) v. Ryder 52 Fawcett k. Laurie . . . . 432 V. Lowther . . . . 660 D. Whitehouse . . 425 Fawkes D. Gray .. .. 1251 Fazakerley d. Culshaw . . 899 D. Ford . . . . 926 Fe.irnside and Dean's case 400, 414 Fearon v, Desbrisay .. 779, 841 Featherstonhaugh v. Fenwick 708, 720, 737 V. Turner 722, 739 Table of Cases cited. xU PAGE ?eil(]en «. Slater . . 499, 504 [''eistel V. King's Coll. Cam. 656, 675 Felgate, Re 403 Fell t). Brown 664 Fellowes «. Gwydyr (Ld.) . . 935 Feltham v. Clark . . . . 651 ». Feltham .. .. 1251 Feltham's Trust, Re . . 1215, 1216 Fenn v. Bittleston . . . . 644 «. Death .. .. 1282 Fanner v. Hepburn . . ■ ■ 476 «. Taylor . . 365, 370 Fentiman D. Smith .. .. 132 Fenton ». Browne .. 984,1042 Benwipk, Goods of 804, 1167, 1182 D. Bulham.. .. 1027 e. Clarke . . . . 1 252 e. Greenwell . . 903 V. Potts . . . . 631 K. Reed .. 534,627 Ferguson v. Livingston . . 540 f. Wilson .. ,. 96 Fergusson v. Fyffe . . . . 70 V. L. & B. Rail. Co. 945 Ferrars D. Cherry .. .. 1056 Ferrers t). Ferrers .. .. 591 ■ (E.) V. Staff, and Ut- toxeter Rail. Co. Fcrrier v. Jay Ferris v. Mullens Festing ». Allen ■ V. Taylor 1077 819 625, 631, 632 .. 1111,1125 12 Fetherston v. Fetlierston 204, 205 Fettiplace v. Gorges 378, 761 Few «. Perkins . . . . 497 Ffooks V. S. W. Rail. Co. . . 415 Field, Re 1259 D.Brown 102,304,1155 V. Uonoughmore (Ld.) 891, 895 D.Evans.. .. ■■ 382 V. Moore 302, 303, 318, 574, 575, 576 V. Peckett 255, 1194, 1235, 1320 0. Sowle 380 Fielder v. Hanger . . . . 264 V. Higginson 989, 1043 Filder v. Lon. Br. & S. C. Rail. Co 430 Fillingham w. Bromley .. 1152 Finch V. Brown . . ■ . 674 «. Finch.. 872,874,1187 V. Hollingsworth 781, 1314 D.Lane .• .. 1113 V. Shaw 682 V. Squire . . . . 50 II. Tucker .. ..207 W. Finch V. Winchelsea (Ld.) Finden u. Stephens .. Fingal v. Blake Finlason v. Tatlock . . Finn, Re Finney, Re . . Firmin v. Pulham Firth i\ Cartland V. Greenwood . . Fish V. Klein . . Fisher, Ex parte v. Brierley V. Dixon V. Hepburn V. Moon V. Tayler V. Webster V. Wigg Att.-Gen. PAGE 607 865 1108 1280 299 1259 291 905 1032 860 ^dd. 646 53,56 238, 643 .. 1228 .. 132 714, 716 Add. 1302 .. 457 Fisk V. Att.-Gen. . . 44, S3 Fitch D. Weber .. .. 110 Fitzgerald r. Field .. ..1137 V. Fitzgerald 314, 330, 331,335,551,560,888 Fitzgibbon v. Blake . . . . 380 Fitzhenry 1). Bonner . . .. 1272 Fitzmaurice, Re . . . . 542 V. Bayley . . 86 Fitzroy V. Howard . . . . 1267 i: Richmond (D. of) 776, 1198, 1284 Fitzsimons v. Fitzsimons 158, 160 Fitzwilliaras v. Kelly 1238, 1323 Flack V. Downing College 213, 642 1>. Longmate .. 351,669 Flanagan 1!. Gt. W. Rail. Co. 425 " " "" " .. 239 .. 655 329, 330 1035, 1042 1226, 1228 35 1227 1207 665 430 100, 107 Flanders v. Clark Flarty ». Odlara Fleet «. Perrins Fleetwood v. Green . . Fleming v. Brook D. Buchanan . . V. Burrows . . V. Fleming . . V. Self Fleming's case Fletcher v. Ashburner -D.Fletcher 281,292, 1311 - w. G.W. Rail. Co... 946 - D. Green 904, 907, 908 ■ V. Moore . . . . 23 - V. Stevenson . . 240 . . 400 477, 956, 1058 .. 635,1081 ..507 .. 66,87,933 962, 973, 983 141, 1'12 d Fletcher's case Flight V. Barton V. Bentley V. Bently V. Bolland V. Booth V. Thomas xlii liable of Cases cited. Flint! V. Jenkins Flint V, Wooden Flower v. Hartopp Floyer I). Bankes ; y. Lavington PAGE .. 1288 956,978, 1019 .. 970,989 . . 749 . . 626 Flud V. Flud Fludyer ti. Cobker 976, 1016, 1017 Flureau u. Thornhill . . .. 1024 Foden'i). Finney . . . . 368 Foley V. Addenbrooke . . 483 1). Burnell . . 228, 889 I). Hill ,. V. Parry . . — — V. Wontner Foligno D. Martin Foljambe v, Willoughby Folkes V. Western Follett V. Tyrer Folsom V, Marsh Footner v. Cooper Forbes v. Adams V. Ball V. Forbes V, Limond V. Moffatt V. Peacock V. Phipps ». Richardson V. Ross Forbes' and Judd's case Ford, Re V. Ager . . , , V. Batley 528 .. 865 .. 45 .. 1037 597 456, 589 .. 317 .. 122 .. 1274 .. 336 820, 845 .. 1165 .. 895 621, 622 765, 1067 .. 332 .. 16 .. 251 .. 438 362, 367 522, 537 13 V. Chesterfield (E. of) . . 662 ». De Pontes .. 828,1183 V. Olden . . . . 88, 679 V. Peering . . 209, 581 D. Rawlings .. .. 1121 V. Ruxton . . 1240, 1250 V. Ryan 885 1!. Stuart . . . . 570 f.Tynte.. .. 237,1158 ». White.. .. 634,696 Ford's Estate 620 Fordham D. Fordham .. 199 I). Wallis 539, 1252, 1253 Fordyce v. Bridges V. Ford -^—^— V. Willis 23, 583 963 862 Forest, Ex parte . . . . 441 Forrer «. Nash 87, 796, 1028 Forrest v. Forrest . . . . 873 V. Manchester, &c. Co. 430 s). Prescott .. .. 1322 D. Whiteway.. .. 1302 Forrester v. Leigh (Ld.) 37, 1236 Forsbrook v. Forsbrook 1296, 1307 Forshaw 1). Higginson .. 912 PAGE Forshaw v. Welsby . . 285, 292 Forsight v. Grant . . . . 853 Forster D. Davies ,. .. 913 V. Forster . . . . 201 V. Hale . . 285, 863 V. Hoggart . . , , 678 V. Rowland . . . . 953 V, Thompson . . . . 30 Forsythe v. Bristowe 535, 539 543, , 544 Fort V. Clarke . . . . 971 Fortescue v. Barnett . . 282, 648 ». Gregor .. 583,815 V.Hannah.. .. 611 Forth I). Chapman .. .. 1302 Fosbrook II. Balguy .. .. 255 Foss V. Foss 582 Foster, Re 490 V. Blackstone . . 693 r. Cautley .. ..583 !). Cockerell .. 648,652 , B.Cook .. 37,1194 V. Dawber . . 77, 878 V. Deacon . . . . 993 ■ t;. Evans .. .. 851 V. Hale . . . . 723 V. Handley . . . . 32 D.Hayes .. .. 1306 ». M'Mahon . . . . 95 V. Roberts . . . . 647 t'. Koraney .. .. 1306 D.Smith .. 16,17 Fothergill «. Fothergill .. 816 Fothergill's case Add. 407, 438 Foubert D. Turst .. ..568 Fountain, Ex parte .. .. 449 Fountaine v. Carmarthen Rail. Co 423 D.Tyler .. .. 1235 Fourdrin v. Gowdey . . 35, 854 Powell D. Tranter .. ,. 511 Fowle V. Freeman . . . . 952 Fowler, Re .. .. 162, 163 V. Cohn . . 774, 837 V. Foster . . . . 645 D. Fowler 42, 43, 77, 582, 748, 853 K. Wyatt .. .. 287 Fowler's case . . . . jidd. 402 Fox, Ex parte . . , . 4,47 , Re .. .. 1129,1130 D. Chester (Bp.) .. 175 •«. Clifton .. ,. 711 »• Fox 868 D.Garrett .. 245,1283 D.Gregg,. ,. ,, 779 V, Hanbury 731, 742, 743 D. Mackreth . . 939, 947 Table of Cases cited. xliii Fox V, Scard . . Pox's case Foxlowe V. Amcoats Foy V. Foy . . V. Hynde Fradella v. Weller Frail v. Ellis .. . Frame «. Dawson Framlinghara v. Brand Frampton v. Frampton Francis v. Brooking . . p. Clemow : V. Francis V, Hawkesley V. Minton v. Wigzell '. Alvares PAGE 416,438 .. 1035 .. 52 .. 200 122 1075, 1077 552, 954 .. 1219 385, 388 367 Franco Frank *. Frank V. Stovin [''rankilinski v.. Ball . . Franklyn v. Tuton Franks v. Bollans V. Brooker —— V. Martin V. Price Fraser v. Byng . . V, Fraser . . V. Hill V. Jones i>. Kershaw V. Thompson ■ . V. Wood Fray v. Voules Frayne t>. Taylor Freake ». Cranefeldt . . Freakley ». Fox • . Frederick v. Aynscombe Freeland ». Pearson V. Peterson - V. Stansfeld Freeman v. Cooke V. Edwards : V. Fairlie V. Freeman V. Pope V. Whitbread . . ?reemantle v. Banks.. ?reer v. Hesse • • V. Rimmer ?reme v. Brade V. Wright ?remoult v. Dedire . . ?rench f. Andrade . . : v. Caddell . . ■ ». French 1320 886 546 642 381 1110 580 1297 672 93 820, 336 1194 560 1103 1240 1119 687, 713 633, 1087 .. 743 570, 671 .. 1037 62 101, 994 545, 896 .. 245 .. 104 773, 997, 999 ..989 722, 728, 743 . . 90 . . 660 725 804, 808,1184 271,273 24 848 225 967 647 ?rend v, Buckley V. Dennett ?rere j), Moore 607, 608 747 1302 273 1000 74 684, 693 Frcsh6eld v. Reed Frewen v. Phillips Friar ». Grey . . Frith, Goods of V. Cameron V. Cartland Frogley p. Phillips Frosel v. Welsh Frost V. Moulton Fruer v. Bouquet Fry V. Capper. . V. Fry V. Noble II. Porter Fryer, Re V. Coombs V. Morris Fuller V. Benett PAGE .. 808 133, 141, 142 .. 511 .. 1179 .. 899 .. 883 1282, 1315 .. 484 .. 709 .. 262 .. 775 251, 935 .. 355 .. 1141 .. 907 .. 783 .. 1234 1061 - B. Chamier 182, 190, 201, 203, 204, 1276 t). Redman V. Wilson Fullerton v. Martin Furness v. Caterham Co Furnival v. Crew Fursdon f. Clogg Fury V. Smith Fussell V. Dowding Fyfe 1). Arbuthnot Fyfe's case . . Fyler v. Fyler Fynn, Re Fytche v. Fytche Gabriel v. Smith Gadbury, Re . . Gaffee, Re . . Gage V. Lister.. Gainsford v. Griffith Gaitskell's Trusts, Re Gale II. Bennett V. Gale . . — — V, Lindo . . Galland v. Leonard Galley v. Barrington Galliers v. Moss Gallimore v. Gill Galloway v. London of) .. .. Galton V. Emus : y. Hancock Gambart t>. Ball -^-^— V. Sumner 546 90, 1081 .. 564 Rail. .. 681 .. 503 .. 524 .. 696 Add. 601 .. 616 .. 412 .. 887 299 160, 162 969, 972 .. 876 38, 373 .. 376 .. 1070 Add. 1113 .. 1282 455, 835 .. 572 .. 1116 .. 1218 .. 1260 30 (Mayor 428 .. 88 37, 1323 .. 126 .. 126 d2 xliv Table of Cases cited. Gamboa's Trusts, Re. . Gandy D. Jabber Gann v, Gregory V. Whitstable Fishers Garbrand v. Allen . . V. Mayot Garbut v, Hilton Garden v. Ingram Gardener, Ex parte . . V. M'Cutcheon Gardiner v. Fell V. Slater ^—— V. Stevens PAGE , 1280 , 481 , 1175 . 149 , 938 , 1284 , 1142 , 1081 , 365 . 720 . 162 . 1142 . 1272 . 310 , 1187 , 653 Gardner, Ex parte . . , Goods of . . V. Cazenove . . V. Ch. Cross Rail. Co 945 V. Fooks . . . . 86 W.Gardner ..372,376,377 ». Hatton .. 1234,1243 V, Lachlah .. .. 651 D. L.C.&D. Rail. Co. 423, 654, 675, 681 .. 368 . . 128 .. 1270 ( 11. of) 608 .. 716 979 331,568 . . 254 .. 258 .. 1208 .. 891 .. 251 101, 994, 995, 996, 1037 Garrard v. Frankel . . . . 91 ». Lauderdale (Ld.) . . 894 D. Tuck 521, 530, 891, 1001 V. Marshall V. Parker V. Sheldon 1). Townshend Garden, Ex parte V. Lee. . Garforth v. Bradley Garland, Ex parte Garlick t). Lawson Garner v. Garner V. Hannyngton 1;. Moore Garnett ». Acton Garratt v. Niblock Garret v. Pritty Garrett v. Noble ' V. Wilkinson . . . 1194 . 1142 . 254 . 873 Garrickv. Camden (Ld.) .. 1310 . V. Taylor . . 870, 872 Garth v. Baldwin . .201, 226, 564 ti.Cotton.. 1154,1155,1157 V. Meyrick V. Townsend Garthshore v. Chalie , Garvey v. Hibbert . Garwood v. Ede Gascoigne v. Thwing Gaskell v. Chambers . V. Gaskell Gaskell v. Harman Gaskell's Trusts Gaskin v. Rogers Gaston v. Frankum Gaters v. Madely Gaved v. Martyn Gaves v. Weld Gayer v. Wilkinson Gayford v. Moffatt . ■ V. NichoUs FACE . 1098, 1135 .. 384 12,1170 485, 1000 329, 332 . . 141 . . 238 334 'l32, 141, 142 .. 152 Gayre V. Gayre ■• <» 1236 Geaves B. Price .. ..1185 Geddes t). Wallace .. .. 721 Gedye «). Montrose (D. of) .. 1018 Gee V. Gurney . . . • 841 V. Liddell . . 244, 748, 1 1 27 K.Manchester (Mayor of) 1116 ». Pearse .. 1018,1043 V. Pritchard . . . . 122 v. Smart . . . . 98, 347 Gen. Estates Co., Re. . . . 422 Gen. Exch. Bank . . . . 442 General, &c. Ccb. Venn . . 645 General Provident, &c. Co., Re Add. 420 Gen. Rolling, &c. Co., Re . . 434 General Rolling Stock Co., Re Add. 441 Genery v. Fitzgerald . . Gent V. Harris George 1). Jew.. v. Milbanke . . Gerhard v. Bates Gerrard v. Butler V. Gerrard Gervais v. Edwards . . Gervis v. Gervis Ghost V. Waller Giacometti v. Prodgers Gibbings v. Gibbings Gibbins ii. Eyden .. 1265 367,369 .. 211 293, 763 ..68,90 .. 837 .. 589 .. 92 .. 35 251,884 Add. 364 .. 167 34, 317 -K. N.E. M. Asylum.. 1036 ■ V. Taylor Gibbon v. Warner Gibbons v. Gaunt -!). Hill V. Kilbey V. Langdon T. Phillips V. Snape .. 1216 Gibbs i'. Daniel .. 814 V. Fremont 610, 1096 V. Grady .. 1216 V. Harding .. 395 V. Lawrence .. 871 ('. Merrill . . 425 V. Rumsey . . 459 Giblett V. Hobson 251 .. 456 .. 77 .. 1233 .. 365 .. 1132 .. 896 .. 217 .. 939 .. 70 .. 963 .. 386 .. 1227 .. 706 .M, 111,869 52 Table of Cases cited. xlv PAGE Gibson, Re 1198 V. Bolt - V. Clarke - V. Coleman - D. D'Este - V. Doeg - 1). Fisher - V. Gibson - V. Goldsmid - V. Holland ■ V. Ingo - V. Jeyes - V. Kinven - V. Monfort (Ld) - V. Overbury . . • V. Russell ■ V. Seagrim ■ K. Woollard . . Gibson's case Giddings ti Giddings . Giffard v. Williams . Gilbert v. Dyneley . V. Lewis V. Overton 283,284.292,293 )). Witty .. .. 1317 Gilbert's case .. .■ 415 Gilbertson v. Gilbertson . . 1 322 19,114 .. 1033 43 961, 964 . . 499 .. 1315 .. 352 69, 1030 . . 953 .. 1056 290, 936, 939 . . 825 .. 1287 .. 648 .. 289 .. 689 .. 987 .. 426 164, 224 .. 462 .. 675 375, 376 Gilchrist D. Cator - V. Herbert , .. 3G7 Adj. 552 1215, 1216 .. 795 .. 1186 .. 1172 .. 1202 Giles V. Giles . . t). Homes V. Warren Gill, Goods of. • 1). Bagshaw D.Gill 618 V. Newton . . . . 678 1). Shelly .. .. 1292 Gillan v. Morrison . . . . 395 Sillaume v. Adderley 1232, 1237 3illespie v. Alexander 893, 1252 1). Gillespie . . .. 1241 jillet!;. Wray .. .. 1142 jillett v. Gane .. ..1215 , Peppercorn Jilley V. Burley jilliat V. Gilliat lillibrand v. Goold billies V. Longlands • • jilman v. Daunt liraud v. Hanbury . . littings V. M'Dermott iladding v. Yapp . . ilaholm V. Hays ilanvillet). Glanville V. Payne . . Mass V. Richardson . . ileaves v. Paine .. 612 967, 1194, 1242 588 104, 108 .. 1285 .. 262 1197, 1220, 1279 .. 263 .. 69 1095, 1216 . . 555 213, 759 347, C64 PAGE Gledstane's case . . . . 441 Glegg V. Rees 895 Add. 279 Glengall (E. of) v. Thynne . . 552 Glenorchy v. Bosville 556, 558, 564, 565 Gloucester Corp. v. Osborn . . 43 V, Wood . . 43 Glover, Re 285 V. Bates . . . . 673 V. Hall , . , . 374 V. Hartcup . . , . 854 Glubb ti. Att.-Gen 53 Glynj). Hood 651 Glynn, Ex parte V. Thorpe Goate V. Goate Goddard u. Snow Godfrey v. Godfrey V. Tucker V. TurnbuU • V. Watson Codling V. Johnson Godsal K. Webb Godwin v. CuUey V. Winsmore . . , Goilmere v. Battison . . Goldicutt V. Townsend Goldney w. Crabb .. Goldring M. Inwood .. Goldsmid ». Goldsmid V. Heathcote 633 36 . . 546 .. 313 .. 867 . . 465 . . 730 059, 672, 673 .. 132 .. 763 .. 548 .. 351 . . 84 310, 554 .. 1041 .. 830 610, 1146 .. 378 V, Tunbridge Wells Commissioners 150, 153, 154 77, Goldsmith v. Russell Goman v. Salisbury Gompertz v. Pooley Gooch V. Gooch Gooch's case .. ^10, Add. 413,436 Good I). Good 1276 274 1032 .. 97 756, 1286 Goodale v. Gawthorne Goodall V, Skerratt . . Goode V. Burton . . V. Harrison V. Job . . , . Goodenough, Re Goodfellow V. Burchett Goodlad v. Burnett Goodman w. Edwards V. Goodman V. Grierson V. Whitcomb Goodright v. Cator . . V. Cornish . . V. Dunham t;, Hoskins'. . V. Pullyn . . V. Searle . . .. 187 .. 526 .. 1075 .. 707 524, 535 .. 1205 .. 851 1193, 1194, 1235 .. 1267 .. 1132 .. 627 . . 732 .. 768 .. 1330 .. 1306 .. 1272 . . 204 .. 1336 xlv Table of Cases cited. Goodright v. Wright . Goodson V. Ellison . Goodtitle v. Funucan V. Herring . . V. IMorgan . . V. Otway V. Southern —^—^^ V. White . . Goodwin v. Fielding . , V. Lee V. Longhurst PAGE .. 1196 .. 891 TS*, 785, 788 .. 205 Goodwin's Estates, Re Goodwyn V. Goodwyn Goodyar, Re 1228 085 1182 1211 1336 953 1323 484 988 816 Goold V. Teague V. White Gordon V. Adolphus V. Bowden V. Duff V. Ellis 101, 1260 216, 971 .. 1104 .. 16 .. 1233 721 ■ V. Gordon 60,531,1209,1293 • V, Graham - 1). Hoffman . • V. Howden . ■ V. Levi ■ V. Raynes - V. Reay (Ld.) - 1). Whieldon . 690 1270 713 829 1097. 1174 454 464, 469, 1062 ..496 561,699 Add. 401 ..296 4 934, 953, 1023 Gore V. Bowser Gorely, Ex parte Goring v. Nash Gorissen's case Gornall, Ee . . Gorst V, Lowndes Gosbell V, Archer Gosden v. Dotterill 1228, 1229, 1250 Gosling V. Carter . . . . 765 D. Townshend .. 1116 Goss V. Nugent (Ld.) 75, 77, 1032 Gosset, Re 816 Gossip V. Wright . . . . 628 Gott!). Gandy .. 498,502 Gottlieb w. Cranch .. 11,647 Gough t). Andrews .. 592,593 ». Davies .. 170,738 1). Everard .. .. 645 Gould ». Gould .. .. 812 V. Kemp . . . . 455 «. Tancred .. ..673 »). Teague .. .. 101 Goulder ». Camm .. 374,382 Gourlay D. Somerset (D. of) 86,501, 741 Gover D. Davis .. .. 1227 Gower ». Evre .. ..1154 V. Gowk 310, 590, 1227 J). Grosvenor . . . • 228 Gower' s case .. .. .. 417 PAGE Gowling V. Thompson .. 1261 Grace, Ex parte . . . . 223 V. Smith 706, 709, 7 1 1 Grady's case .. .. 409,415 Grafftey 0. Humpage .. 604 Grafton (D. of) v. Lon. & Bir. Rail. Co 194 Graham 1). Graham .. 618,853 O.Hope .. .. 730 D.Jackson .. .. 181 V. Johnson . . . . 67 V. Keble . . . . 235 ». Londonderry (Ld.) 219 t). Londonderry 357, 358, 376 u. Maxwell .. •• 258 V. Musson . . • . 954 V. Oliver . . . . 1029 ' V. Paternoster . . 52 ». Peat .. .. 483 ■ V. Sime .. .. 1065 V. Wickham . . 611, 840 Grainger D. Slingsby . . .. 1229 Grand Junction Canal Co. v. Shugar .. .. Add. 149 Granger ». Irving . . . ■ 802 V. Worms .. •. 961 Grant, Ex parte . . . . 206 . , Re 360 V. Bridger .. .. 1182 B.Dyer .. .. 1219 ». Ellis .. 515,517 I). Grant 282, 284, 376, 1207 V. Lynam V. Maddox . V. Mills Granville v. Betts D. Beaufort 780, 820 .. 76 1075, 1077 .. 93 .. 262 Granville (E.) «. M'Neil .. 798 Gratrix v. Chambers . . ■ . 1246 Gratwick, Re . . 819, 823, 1138 Grave v. Salisbury (Ld.) 847, 848 Gravenor v. Hallum V. Watkins Graves v. Forman . V. Graves V. Hicks 42 1148, 1203 .. 157 .. 29 .. 1324 .. 137 Gray v. Bond . . . . V. Ciitteridge . . . . 983 V. Dowman . . . . 347 D.Garman .. ..1112 V. Gray 988 ». Jolinstone .. .. 249 D. Mathias .. .. 82 Grayburn v. Clarkson . . 250 Graydon v. Hicks 262, 1108, 1109, 1145 Grayson i>. Deakin . . . . 353 Table of Cases cited. xlvii PAGE Created I). Created .. 1219,1325 Greatrex v. Creatrex . . . . 725 V. Hay ward 149, 151 Great Ship Co., Re . . . . 447 G. W. Co. V. Bennett . . 153 C. W. Rail. Co. V. Bir. & Oxf. Rail. Co. .. 96 «. Blake .. 429 Gt. Lux. Rail. Co. v, Magnay . 425 Greaves, Ex parte . . 605, 906 V. Ashford . . . . 126 r. Dolphin .. ..1149 y. Hughes .. .. 1243 V. Powell . . . . 1320 t'. Simpson .. 182,1276 V. Wilson . . 979, 1050 Greedy v. Lavender . . . . 365 Green, Ex parte . . . . 597 , Re 242 V. Bank of England . . 871 «. Barrow .. .. 1116 V. Bartlett . . . . 983 V. Beesley . . . . 705 V. Belcher . . 589, 593 !'. Briggs .. ..1042 r. Britten .. 115,375 V. Claydon .. ..1000 r. Crockett . . . . 63 ■W.Harvey .. 1110,1148 1). Gascoigne . . . . 5 ■ V. Green 157, 205, 373, 806 i: Ingham . . 648, 649 r. Jackson . . . . Ill V. Low . . . . 69 V. Marsden . . . . 868 V. Otte . . 364, 367 V. Pigot .. .. 1251 ■«. Pulsford .. ..1040 V. Rutherforth . . 46 r. Saddington . . 951 U.Smith .. 100,991 r. Spicer .. .. 1149 ^'. Stephens .. .. 104 r. Symonds .. 1228,1243 V. Waring . . . . 728 Green's Estate, Re .. ..1199 Settlement, Re 1014, 1133 Trusts, Re .. ..1114 Greenaway v. Adams . . 500 v. Hart . . . . 791 Greene D. Greene .. .. 1322 Greenfield i". Edwards .. 1056 Greenham v. Gibheson . . 806 Greening v. Beckford . . 652 Greenough IJ. Gaskell .. 1062 Greenslade v. Dare 1011, 1059 V. Dower . . 714 Greenway v. Bromfield V. Greenway PAGE 527, 675 104, 1302 Greenwood, Re .'. 453, 1310 V. Evans . . 221 r. Greenwood 60, 1239, 1314 ■U.Percy.. .. 461 V. Roberts . . 752 V. Rothwell 699, 1299 i V. Verdon V. Wake ford .. 1303 .. 912 .. 409 800, 1067 .. 630 .. 610 .. 1215 .. 880 .. 428 .. 658 .. 241 .. 477 Greenwood's case Greetham v. Colton . Gregg «;. Arrott . Gregor v. Kemp Gregory, Re . . V. Henderson V. Patchett . V. Pilkington V. Williams . V, Wilson Gregson, Re 1128 Gregson's Trusts, Re 1202, 1207 Greig, Re .. .. 1174, 1187 V. Martin .. .. 1202 Grenfell v. Windsor (Dean, &c. of) .. .. 656,675 Gresley v. Mousley . . 939, 941 Grell t). Levy . . .. 71,84 Gretton v. Haward 157, 158, 162, 204 Greuze v. Hunter . . . . 299 Greville r. Brown .. .. 1320 I). Greville .. .. 1201 ^w. Tylee .. .. 1190 Grey v. Grey . . . . . . 874 V. Jenkins . . 489, 801 V. Northumberland (D. of) 21 1 V. Pearson . . 1220, 1221 D.Stuart 603 Grice D.Shaw 621 Grier v. Grier . . . . AdJ. 558 Griesbach v. Freemantle . . 108 Grieve D. Grieve .. .. 1294 Grieves v. Case . . . • 52, 56 D.Rowley .. .. 1282 Grieveson v. Kirsopp 104, 105, 797, 844 Griffies v. Gri85es . . . . 461 Griffin d. Bishop's Castle Rail. Co 423 Griffith D. Ricketts 100, 663, 894 Griffith's case 430 Griffiths t. Evan 202, 864, 1297, 1309 II. Gale . . . . 833 D.Griffiths.. 1170,1179 D. Hamilton . . 262 xlviii Table of Cases cited. Griffiths 1). Hatch ard V. Hemming ' 11. Jones ■ II. Penson .. V. Porter . . V. Pruen V. Robins . . V. Smith V. Vere . . Grigby v. Cox . . ». Powell Griggs V. Gibson ■ V. Staplee Grimmett v. Griramett Grimson v. Downing . . Grimstone, Ex parte . . Grimwood v. Cozens . . Grisewood and Smith, Ex parte Grissell v. Bristowe . . V. Swinhoe . Grissell's case . Groom, Re 703 D. Booth .. ., 1067 Grose w. West 1002 Grosvenori). Durston .. 160 ■ (Ld.) V. Hampstead PAGE 972 590 . 991 .. 1068 884, 892 .. 1249 .. 290 .. 1251 .. 3,4 .. 379 .. 581 157, 160, 696 .. 314 52 204 663 1187 402 412 158, 159 440, 441 Rail. Co., ' V. Lane ■ V. Sherratt . 945 .. 327 287, 290 366, 367 976, 1008 597, 890 .. 1044 13, 14, 453 .. 369 .. 871 60, 289 1230, 1337 1312, 1313 Grove, Re V. Bastard V. Price Grover v. Hugell Groves, Re ■ V. Clarke V. Groves V. Perkins V. Wright Grylls' Trusts, Re Guardhouse t). Blackburn 1174,1205 Gubbins ». Creed .. ..629 Gude J). M'orthington .. 1201 Gudgen II. Bisset .. .. 1011 Guest «. Cowbridge Rail. Co. 469, 663, 691 !;. Homfray .. .. 1043 V. Smythe . . . . 939 -V. Willasey .. ..1174 .. 1186 .. 807 .. 366 . . 748 .. 553 .. 1148 .. 867 .. 1213 . . 279 205, 1280 Gullan, Re V. Grove Gullin v.Gullin Gulliver vi Ashby V. Gulliver V. Vaux Gully V. Cregoe V. Davis . . V. Exeter (Bp. of) Gummoe v. Howes ■ . Gundry v. Pinniger Gunn, Ex parte Gunnell v. Whitear Gunter v. Gunter V. Halsey Gurly ». Gurly Gurnell v. Gardner Gurney v. Goggs V, Gurney Guy V. Pearkes V. Sharp . . Gwillim V. Gwillim V. Stone Gwynne v. Heaton ti. Muddock Gyles V. Wilcox Gynn v. Gilbard PAGE 601, 1310 .. 399 .. 917 .. 623 552, 954 .. 358 .. 635 . . 374 285, 1170 .. 371 1209, 1241 .. 1180 .. 1038 1080, 1081 .. 1279 .. 122 .. 366 H. H ti. W .. ..1108 Habergham D. Ridehaigh .. 1261 1). Vincent 235, 806, 1171, 1172, 1173 Habershon's case . Haddelsey v. Adams 203, Haddon d. Ayers . • Haddow v. Fladgate . . Hadley, Re . . V. London Bank 440 1128, 1133 69 374 910 of Scotland Hadow V. Hadow Hagger v. Payne Hagshaw t). Yates Haigh i). Gray 1). Kaye .. 1034 ..597 .. 1284 ..089 . . 740 Add. 871, 924 . . 478 Haines v. Burnett Hale D. Allnutt .. ..896 • • 5). Metropolitan, &c. Co. 271 n. Oldroyd .. ..151 u. Saloon Omnibus Co. . . 271 Hales V. Cox . . 38, 277, 281, 293 11. Darell . . . . 854 Haley v. Bannister 4, 1241, 1255 ti. Hammersley.. .. 644 Halfhead v. Shepherd 773, 845 Halifax w. Wilson .. .. 1135 Halket v. Merchant Traders' Association.. .. .. 409 Hall, Goods of .. 1171,1189 D. Burrows .. .. 736 i). Bushell .. .. 1046 K.Carter.. 587,593,835 I). City, &c. Brewery Co. 501 V. Dench .. ., 1182 Table of Cases cited. xlix 353; PAGE . . 76fi .. 1213 292, 297, 727, 854, U69,Add. 292 250, 255, 940, 941 .. 94 .. 1290 854, 856, 875 . . 335 .. 1034 . . 296 . . 245 598, 1045 .. 1270 133, 134, 148 678, 1040,1041 82,281 .. 1060 Hall V. Dewes V. Fisher V. Hall V. Hallet V, Hardy V. Hewer O.Hill .. ti. Hugonin ». Jenkinson I). Jones . . v. Kendall ». Lamb . . V, Lietch . . B. Lund . . V. May . . t'. Palmer V. Smith . . ■ V. Swift 151 ». Terry 1102 O.Warren 44,948,1114,1168 V. Waterhouse 378, 379, 1168 Hall's case .. .. . . 415 Estate, Re 356, 1009, 1283 Will, Re .. .. 1337 H alien 0. Runder .. .. 950 Hallewell o. Phillips . . .. 1159 Halliday's Settled Estates, Re Add. 490 Hallifax, Ex parte . < Hallows V. Fernie Hallyburton, Goods of Halsey v. Grant , Halsey Halton V. Foster Haly I). Barry . . . • Ham's Trusts Hames v. Hames Hamer v. Tilsley Hamer's Devisee's case Hamil v. Stokes • V. White .. 633 404,405 .. 1168 .. 963 .. 302 .. 1310 .. 472 .. 1311 1312, 1314 .. 348 .. 247 721,722 617 Hamilton o. Buckmaster 1040, 1041, 1223 t!. Carmichael .. 1228 V. Hector .. Add. 387 (Mayor of)ti. Hods- don .. .. 1222 O.Jackson.. 167,351 V. Kirwan . . . . 842 V. Mills 331, 601, 1279 (D. of) 0. Mohun . . 572 o. Royse .. .. 1061 0. West .. .. 1298 Hammersley «). De Biel 309,551, 553 Hammond 0. Hammond .. 603 . o.Maule .. ,.1118 Hammond o. Neame . 0. Smith Hamond v. Hicks . Hamper, Ex parte Hampshire o. Bradley Hampson w. Fellows . Hampton o. Hodges • Hanbury o. Hussey • V. Litchfield t). Spooner Hance o. Truwhitt Hancock v. Att.-Gen Hancox v. Abbey V. Spittle Hand v. North Handley v. Farmer V. Stacey Hanmer o. Chance Hannaford v. Hannaford Hannah o. Hodson Hannam i'. Sims Hansard v. Hardy Hanslip o. Kitton 0. Padwick page: .. 866 546, 853 570 710 888 660 67 459 963, 1000, 1060 .. 1249 .. 161 . . 663 .. 1321 .. 919 .. 453 .. 665 .. 1168 139,211 .. 1317 826,841,842 .. 1261 .. 664 .. 719 .. 1023 Hanson 0. Graham 1106,1118,1121, 1123 V. Keating V. Lake o. Miller Harbidge v. Warwick Harbin «. Darby Harcourt v. Seymour. y. White Hardacre v. Nash Hardcastle v. Dennison 0. Hardcastle Hardey r. Green Harding, Ex parte 0. Glover . . V. Glyn V. Grady V. Harding 0. Knott .. V. Nott v. Pingey . . Hardingham v. Thomas Hardwicke (E.) v. Douglas . . 1184 (Ld.) v. Vernon ... 941 Hardy, Ex parte .. '.. 101 -!). Caley .. ..887 V. Reeves . . 672, 673 Hare 0. Burges .. .. 218 r. Cartridge .. ..1202 ■ v. Hare 295 ^. Horton .. ..643 V. L. &. N. W. Rail. Co. 83 .. 361 .. 1045 .. 331 139, 142 . . 255 100,108 529, 545, 941, 1157 .. 1224 .. 216 755, 1124 571,603 Add. 670 .. 728 780, 781, 844 .. 29 988, 995 .. 1336 .. 1336 062, 664 . . 855 1 Table of Cases cited. PAGE Hare t). Pryse . . .. .. 1230 Hare's case .. .. 401,406 Hargrave v. Hargrave 63, 66, 1015 Hargreaves B. Rothwell .. 1061 Harland ■!). Binks .. ..272 v. Trigg .. .. 1309 Harley 1). Harley .. .. .338 ■«. Moon .. 834,1246 Hardtnan v. Johnson . . . . 224 Harman t'. Gurncr .. .. 1213 1!. Johnson .. .. 717 V. Richards 271, 279, 382 Harmer v. Priestly . . . . 665 Harraood v. Oglander 33, 34, 1182 Harms 11. Parsons .. .. 81 Harnett 1). M'Dougall .. 382 r. Yeilding .. 88,788 Harper, Ex parte .. •• 741 D.Hayes .. .. 935 Harpur v. Bull . . . . 368 Harries' Trusts . . . . 831 Harrington, Re •• .. 170 «. Churchward .. 710 : V. Harrington 229, 760 I'. Harte.. ..1311 v. Long . . . . 83 V. Price . . 613, 1082 t). Wheeler .. 1032 Harris, Ex parte .. .. 746 , Goods of .. .. 1189 1!. Amery .. .. 713 D.Barnes .. .. 1334 V. Berral .. .. 1186 V. Cutler .. .. 1193 U.Davis .. 1198,1276 «. Drewe .. .. 132 V. Farwell . . . . 738 V. Harris 222, 892, 901 D.Lee 315 V. Lloyd . . . . 1287 V. N. Devon Rail. Co. 416 1). Pepperell . . 1068, 1079 D. Poyner .. .. 115 t). Ryding .. .. 153 V. Watkins . . 29, 34, 165 Harris's case 399, 952,^rfd. 399,952 Harrison, Re . . .. 911, 914 . -!). Andrews .. 331 1). Barton 452, 455, 948 V. Blackburn , . 493 «. Cage .. ..589 : — V. Duignan . . 527 K. Foreman 1112,1131 ti. Forth .. ..1056 «. Good .. .. 1071 !). Goodall.. .. 301 V. Grimwood .. 1101 D. Guest .. .. 1080 Harrison v. Harrison • ». Hollins - V. Hyde ■ V. Jackson - «. Keating - V. Round ■ V. Rowley - V. Southampton (Corp. of) - r. Southampton (Mayor of) - V, Tennant PAGE 50, 261, 352, 1311, 1314 .. 534 .. 1209 .. 716 .. 1030 926, 927 .. 1249 1146 Harrison's case Estate Harrold, Re . . V. Harrold V. Whitaker Harrop, Re . . V. Howard V. Wilson Hart, Re B. Alexander V. Clarke V. Durand V. Hart . . ». Middlehurst V. Nash . . V. Prendergast V. Stephens V. Tribe . . B. Tulk .. B. Windsor Hart's case . . Trusts, Re Harter b. Harter Hartland v. Murrell Hartley ti. Allen B. Burton V. Hurle V. Ostler V. Smith Hartnall, Re . . Harton b. Harton Hartop B. Hoare Hartopp V. Hartopp Hartshorne v. Watson Hartwell v. Hartwell Harvey v. Ashley B. Aston V. Cook " V. Crickett V. Grabham ^—^— V. Harvey .-^-— I'. Stracey B. Tebbutt Harwood b. Fisher 48,49 .. 732 401,415 .. 1273 .. 259 .. 813 .. 671 102, 107, 169 .. 382 22,24 .. 1094 .. 738 .. 416 .. 1292 .. 1012 556,558,570 .. 547 .. 546 329, 330 ... 865 1209,1219 .. 502 .. 413 .. Ills Add. 1205 30, 639 24 .. 697 .. 1266 .. 1239 .. 297 .. 919 .. 880 .. 230 62,616,347 .. 506 .. 81 575 1140,114*1,1142, 1143,1146 60 .. 743 77, 1032 116,219 .. 837 .. 698 .. 334 Table of Cases cited. li Harwood v. Tooke . . Ilasket V. Strong Hasleham i>. Young . . Haslewood v. Green . . Hassell v. Gouthwaite Hastead v. Searle PAGE 84 689 716 1279 207 1211 Hastie's case .. ,. .. 437 Hastings v. Ashley . . . . 626 (Marq.) v. Beavan . . 472 V. Orde , . . . 600 B. Whitley . . . . 82 Hastings' (Ly.) case .. .. 802 Haswell v. Haswell . . 770, 810 Hatch II. Hatch 286, 287, 291 V. Skelton . . 622, 1324 Hatcher ». Curtis . . . . 803 Hatfield «. Pryme .. .. Ill Hatterly v. Jackson . . . • 453 Hatton V. Finch . . . . 16 «. Royle .. ..716 Haughton o. Harrison .. 1256 t). Haughton .. 1147 Havens v. Middleton 496, 1040 Hawes v. Smith . . . . 241 Hawken D. Bourne .. .. 715 Hawker, Ex parte . . Add. 275 V. Hawker . . . . 881 Hawkes v. Baldwin V. E. C. Rail V. Hubhack Hawkins, Re . ■ V. Allen Co. ■ D. Day ■ V. Gardiner . V. Gathercole . V. Hawkins V. Holmes • • V. Kemp . . 11. Luscombe V. Maltby . . 1). Perry . ■ Hawkins' Trust, Re .. Hawksbee v. Hawksbee Hawkshaw v. Parkins Hawksworth v. .. 1109 .. 394 .. 383 .. 101 55 .. 243 .. 863 656, 675, 1062 167,601 . . 953 806, 828 .. 880 411,414 .. 699 .. 1249 480, 519 .. 716 Hawksworth Add. 296 Hawthorn v. Shedden 35, 822, 823 Hay, Ex parte . . . . 746 11. Coventry .. .. 1306 «. Palmer .. 21,596 V. Watkins . . . . 839 Hayden v. Kirkpatrick . . 667 Haydon, Ex parte . . . . 745 . t). Rose .. .. 1135 V. Williams . . 545 ■!). Wood .. ..798 Hayes' Trusts, Re .. ..1128 PAGE Hayes, Re 107 V. Garvey . . . . 855 ■ V. Hayes . . 1233, 1242 Hayford v. Criddle 958, 959, 960, 1060 Hayraes v. Cooper . . . . 652 Haynes v. Forshaw . . 254, 639 1). Haynes ..13,101,1250 -!). Mico .. ..853 ti. Reding- . . . . 1 093 Hays, Ex parte .. .. 597 Hayter v. Trego . . . . 43 V. Tucker . . . . 50 Hayton, Re 1305 Haytor Granite Co., Re . . 446 Hayward ^. James .. 1135,1136 D. Pile .. ..220 Haywood v. Cope 85, 961, 1033 Head «J. Egerton .. ..688 V. Godlee 58, 63, 112, 564 Head's case .. .. . . 411 Heald v. Hay 655 Heams ti. Bance .. .. 691 Heapw. Tonge .. 60,561 Heaphyt). Hill .. 95,1033 Heard 11. Pilley .. 871,954 V. Stamford 315,324, 330 Hearle v. Greenbank, . 317,805 Heaseman ti. Pearse . . 1130,1262, Add. 748 Heath u.Bucknell .. ..146 V. Chapman . . . ■ 39 V. Bendy . . . . 1245 t'. Fisher .. .. 731 V. Lewis . . . . 329 V. Percival . . . . 738 Heath'sSettlementll29, 1137, 1301 Heathcoate, Ex parte 631, 632 Heathcote u. Hulme .. •• 252 Heathe ti. Heathe .. .. 1284 Heather f. O'Neil .. ..346 Heatley ji. Thomas .. 379,764 Hebb, Ex parte .. ..399 Hebbert J). Thomas .. .. 492 Hedley «. Bainbridge .. 714 Hedges ». Blick .. .. 13 V. Harpur . . . . 13 ». Hedges .. 127,1323 Heffer ti. Marty n .. .. 88 Heighington v. Grant 256, 674, 888 Heighoe B. Burge .. .. 709 Helbert's case .. .. 436 Helen. Bond 803 Hellawell D. Eastwood .. 238 Hellmann's Will, Re .. 1248 Helps V. Winterbottom . . 545 Hemming 1). Griffiths .. 590 ti. Maddick Add. 408 lli Table of Cases cited. PAGE . 1015 . 1143 Hemming v. Spiers . . Hemmings v. Munkley Henchman v. Att-Gen. Henderson, Re 645, 1116,1312, 1313 V. Austv. &c. Co. . 424 U.Cross .. .. 1148 !!. Kennicot .• 1136 V. Lacon 404, 405, 426, 438 V. Sanderson . . 410 tj. Squire •■ 512 Hennessey t). Bray 861, 877, 903, 1276 Hennessy, Ex parte . . 650 Hennessy's Exors. case . . 408 Kenning 1). Burnet .. .. 144 Henry t. Smith . . ■ • 541 Henshaw, Re 1314 Hensman i>. Fryer 34, 37, 1236, Henstead's case Henvell v. Whitaker . . Heptinstallu. Gott .. Hepworth v. Hepworth V. Heslop V. Hill V. Taylor 1265 .. 483 .. 30 .. 1257 .. 876 ^dd. 875 254, 699 .. 1323 .. 1221 .. 977 243, 303 1292 450 712 .. 41 .. 120 105, 112 .. 964 413, 438 .. 829 .. 685 201, 1298 ^dd. 177 .. 807 .. 919 .. 1062 Hertford D.Lowther 1227, 1229, 1244 Hervery !j. Audland .. ,. 281 Hervey D. Hervey .. 782,813 ' «. McLauchlin .. 1116 V. Smith 131, 132, 1057 Herz t). Union Bank . . .. 134, Heseltine r. Heseltine .. 1243 Hetherington v. Graham . . 352 f. Oakman .. 1220 Heveninghamu.Heveningham 35 T, ^ 592, 667 Hewettw. Foster .. ,. 248 V. Snare . . 1245, 1322 Herbert v. Salisbury . Herbert's case. . Trusts, Re . . Hercules Insurance Co., Re. Hercy v. Birch Hereford (Bp.) v. Adams i). Griffin V. Ravenhill Heriots Hosp. v. Gibson Heritage's case Heron v, Stokes Herrick ». Atwood .. V. Franklin ■ . Herries Peerage ,, Herring v. Brown V. Clark V. Cloberry PAGE Hewitt, Re 703 ,j. Dacre (Ld.) 772, 838, 839 t). Kaye .• •• 128 V. Looseraore 685, 1060, 1061 V. Morris -• •• 113 V. Wright .. 100, 112 Hewlins t). Shippam . . .. 132 Key's Trust, Re . . . . 703 Heygate v. Annesley . . . . 332 Heyman ti. Dubois .. .• 689 Heymann u. European, &c., Co 405,425 Heysham «. Heysham . . 298 Heywood v. Heywood 3, 600, 601 Heyworth v. Knight . . 86, 952 Hibbert 0. Cooke .. ..208 !). Hibbert .. Add. 13U Hibblewhite ». M'Morine .. 414 Hichens v. Congreve . . . . 425 Hickling v. Boyer 242, 1238, 1324 Hickman D. Machin .. .. 672 D. Upsall .. .. 16 Hicks ti. Ross ■ . .• Add. 13 «. Sallitt .. 519,529 Hiern !i. Mill . . .. 687,1059 Higginbothamw. Hawkins Add. 1157 Higgins, Re 246 V. Samels . . , . 90 Higginson », Barneby . . 559 V. Clowes . . 85, 91, 982 1. Kelley .. .. 616 Higham v. Rabett . . , , 144 Higinbotham v. Holme 578, 114S Higgs' case 430 Hill, Re 604 t'. Barclay 476, 498, 500 D. Bexley (Ld.).. .. 670 V. Buckley . . 963, 1029 • II. Chapman .. ., 1284 "• Cock 1264 V. Curtis . . . . , , 232 ^ f. Edmonds .. .. 36O 0. Gomme ., ,. 241 V. Hill, 296,559, 797, 1234, 1255 f. Jones.. ,. ,, 1241 "■ Lane 405 V. Pntchard . . 768, 769 w.Rattey ,. 13^ j^, f. Trenery ,. .. 612 —— W.Walker 242,245,1184 Mill's case ., .. __ Q4Q Hillary, Re .. .. 301,1248 — — ".Waller 536,698, 1012, 1040 Hills 0. Croll g2 V. Hills .. ,, "129 ■ f. Moore.. .. " g^g • V, Parker 647 Table of Cases cited. liii Hills t). Rowland Hilton t). Giraud D. Granville (E.) • V. Woods PAGE . 506 , 50 . 153 83 Hinchcliffe v. Hinclicliffe 849, 850, 1241 «. Kinnoul (Ld.) . 132 Hinchinbroke (Ld.) o. Sey- mour .. .. 779,841 Hinckley 1). Simmons .. 1115 Hind r. Poole 639, 678, 766, 1040 «. Selby .. .. 114, 1136 Hinde ti. Blake .. . . 654 Hinder v. Streeten . . . . 1045 Hindley u. Emery .. .. 504 ■«. VVestmeath (Marq.) 386 Hindmarch, Goods of .. 1190 Hindmarsh, Re . . . . 727 V. Soutligate . . 909 Hinds, Ex parte . . . . 723 Hindson «. Weatlierliill .. 288 Hinton, Ex parte .. .. 578 V. Hinton . . 351, 934 v. Pinke .. .. 1233 !). Sparkes .. .. 984 Hinves D. Hinvcs .. ., 115 Hipkins f. Amery .. 692,1056 Ilippesley v. Homer . . . . 1205 Hipwell ti. Spicer .. .. 1019 Hitchcock D. Clendinen .. 364 ZJ. Ooker ., .. 81 i>. Giddings .. 1080 D.Sedgwick .. 1057 Hitchins ti . Lander . . . , 84 Hirst V. Tolson . . . . 80 Hixon t). Oliver .. .. 760 Hoare, Re 305 V. Hornby . . . . 603 V. Osborne 41, 42, 44, 53, 832, 1314 V. Parker . . . . 230 Hoare's case .. .. 408, 422 Hoath V. Hoath .. ..1118 Hobbs a Knight .. 1171,1186 Hobby V. Collins . . . . 336 Hobday ». Peters 35, 612, 764, 939, 962 Hobgen D. Neale .. ..1117 Hobson V. Bell 935, 978, 998, 1021 B.Blackburn 54,1201,1267 V. Ferraby 301, 374, 574 D. Middleton . . .. 1085 1). Neale .. ..103 I). Sherwood . . . . 459 J). Trevor .. .. 654 Hockley «. Bantock .. .. 632 D. Mawbey .. ..1299 Hoddell V. Pugh . . 100, 1045 Hodder v. Ruffin . . . . 988 Hodge «. Attorney-General .. 168 !). Foot .. .. 1128 Hodge's Settlement, Re .. 301 Hodgens v. Hodgens 303, 305, 369, Hodges V. Croydon Can. Co. . 698 W.Grant .. 454,1236 ij. Green .. ,. 1182 «. Litchfield (Ld.) .. 1023 V. Metrop. Rail. Co. . . 943 II. Peacock Hodgkinson v. Cooper 1). Ennor.. «. Kelley f. National, &o. Ins. Co 429 1239 1000 149 412 Hodgson, Re . . ■!'. Bibby .. v. Clarke . . v. Dean v. Hooper . . V. Hutchenson V. Johnson. . ^. Rawson . . Hodkinson v. Quiini Hodle r. Healey Hodsden r. Lloyd Hodsdon v. Dancer Hodson, Re . . V. Ball Hogarth V. Phillips . Hogg V. Jones V. Maxwell V. Skeen Hoggart «. Scott 87, 1029, 1035 Hoghton T. Hoghton 62, 287, 289, 456, 713 .. 909 1208, 1215 .. 1057 .. 521 .. 553 .. 951 .. 1102 247, 767, 798 .. 535 . 813, 1182 . . 824 .. 914 .. 1224 .. 554 228, 1230 .. 121 714 Holcombe v. Hewson Holden, Ex parte .. .. , Re 1). L. & N. W. Rail. Co. v. Webber Holder «). Durbin r. Ramsbottom Holderness ?). Shackels .. Holdfast V. Clapham . . Holdicli V. Holdich . . Holdsworth v. Goose . . V. M'Crea Hole V. Escott Holford V. Hankinson ■ 11. Stains •• V, Wood . . Holgate V. Jennings . . Holker v. Porrit 290 500 466 106 945 .. 938 .. 915 .. 1231 .. 737 .. 642 .. 353 768, 770 .. 126 .. 769 .. 141 . . 5, 6 1239, 1322 .. 115 Add. 151 liv Table of Cases cited. Holland 1). Allsopp 1). Clark V. Cole FACE .. 1128 246, 538 .. 501 u Eyre .. ..952 V. Holland 904, Add. 462 1>. Wood .. ..1284 HoUiday v. Overton . . 181, 615, 864, 924 Hollingrake i>. Lister .. 1109 Hollingsworth v. Grasselt 129, 1250 Holloway v. Clarkson 201, 762, 1248, 1312 229, 1312 107, 1310, 1313 .. 229 .. 80 .. 1063 485, 707, 938 824, 844, 1192 .. 1112 . 1208 . 1148 . 133 . 848 . 545 . 545 . 1317 . 518 272, 279, 578, 1150 i>. Powell 961, 1057, 1059 v. Prescott 1106, 1121, 1123, 1125, 1330 — — V. Turner . . 666, 681 Holmesdale «. West 565, 587, 930 Holroyd t'. Griffiths .'. .. 737 . V. Marshall . . . . 646 v. Wyatt . . . . 977 Holt 1J. Dewell .. ..651 V. Frederick . . . . 266 r. Holt . . . . 93, 782 V. Sindrey .. .. 1291 Holtzapffell r. Baker . . 495 Homan, Ex parte .. .. 670 V. Andrews . . . . 539 Home Assurance Association, V. Holloway V. Radcliffe V. Webber . . Holman v. Johnson . . Holmes J). Baddeley . . v. Blogg V. Cogbill v. Cradock V. Custance , V. Godson 1). Goring V. Holmes V. Kerrison v. Mackrell , 13. Meynell v. Newlands V. Penney Re Home V. Pillans - V. Pringle 434 1116 249 739 952 Homfray v. Fothergill Honeyman v. Marryatt Honner v. Morton 328, 332, 334 Honor v. Honor . . . . 557 Honywood V. Foster 158, 162, 217 ' V. Honywood 574, 576 PAGE Hood V. Barrington (Ld.) 951, 983, 1008 — «>. Chapman .. .. 114 V. Easton . . . . 672 V. Hood. . 995, 996, 1325 V. Oglander . . 865, 1032 V. Philips . . . . 623 Hook w. Hook .. .. 187 Hoole V. Gt. W. R. Co. . . 430 Hooley «. Hatton .. ,.1239 Hooper, Ex parte 552, 635, 690, 1307 -, Re .. .. 257,605 Hopcraft v. Hickman • . 956 Hope V. Carnegie . . . . 860 V. Clifden (Ld.) 593, 1137 V. Hope 71, 300, 386, 606, 824 Hopewell 0. Aokland .. 1224 Hopgood V. Ernest , . . . 685 Hopkins t). Grazebrook .. 1024 ^ V. Hopkins 104, 924, 1331, 1335 1). Myall .. ..817 K.Phillips.. .. 52 V. Worcester, &c. Proprietors . . . . . . 675 Hopkinson v. Rolt . . . - 690 Hopper, Re . . . . . . 956 V. Conyers . . 632, 905 Hopton 11. Dryden . . • . 245 Hopwood II. Hopwood 847, 849 Hordi). Hord 866 Horde «. Suffolk (E.) .. 43 Hore !). Becher .. 335,336 ». Woulfe .. .. 331 Horlock D. Horlock .. .. 382 V. Priestley •» . . . 684 V. Smith . . . . 673 Horn ». Coleman .. 453,1311 I). Horn 1067 Hornby v. Matcham . . . . 699 Horncastle ». Charlesworth . . 460 Home J). Barton .. 797,1318 I). Wingfield . . .. 1020 Horner t). Swann .. .. 771 t). Wheelwright .. 891 Hornsby v. Lee . . , . 334 Horridge !). Ferguson .. 1220 Horseman v. Abbey .. 812, 1279 Horsepool D. Watson . . .. 1301 Horsey's claim .. .. 446 Horsfall v. Thomas . . . . 90 Horton v. Brocke . . . . 890 V. Brocklehurst . . 249 D.Smith .. 621,624 Horwood t). Griffith .. .. 1244 Table of Cases cited. Iv Hosken V. Sincock .< Hosking v. Nicholls . . Hoskins v. Matthews Hotchkin v. Humphrey Hotham v. E. I. Co. . . V. Sutton . . Hotley «. Scott Hotten V. Arthur Houghton V. Franklin V. Harrison ■ V. Hougliton V. Kcenig . . — ti. Lees Houlditch V. Collins . . Houldsworth v. Evans Houstoun I". Houstoun ' V. Hughes . . — — — — V. Ives Hovenden v. Annesley (Ld.) How V. Whitfield . . Howard r. Chaffer . ■». Collins V. Conway V. Digby V. Ducane ■ v, Harris V. Hooker V, Hopkyns . ■ r. Howard . V. Kay I I V. Rhodes V. Robinson . V. Woodward Howard's case Howarth v. Mills V. Rothwell V. Smith . PAGE 665, 698 252, 1233 .. 1165 .. 1137 .. 68 .. 1228 .. 791 121,123 .. 19 .. 1285 .. 9-18 .. 883 84 .. 1050 416, 428, 431 .. 833 .. 882 .. 1297 527 766 1066, 1067 .. 1130 .. 1211 .. 582 797, 800, 941 626, 664 .. 312 556, 947 .. 1116 117 911 643 68 400 1292 16 1008 Howe V. Dartmouth (Ld.) 114, 606, 897, 901, 1264 c. Hunt 96 (E.) v. Lichfield (E. of) 1052 Howel V. George Howell V. Hanforth . ' V. Howell V. Kightley . v. Richards . Howells V. Jenkins . Howes V. Herring . Howgrave i>. Cartier . Howman f. Cqrie Howorth V. Dewell . Howse V. Chapman . Hoy V. Smythies Hoyes v. Kindersley. Hubbard, Goods of . 1031, 1032 .. 21 .. 557 969, 988 .. 1070 157, 158 1122, 1127 .. 1137 . . 3.30 .. 761 42, 55 979, 980 376, 875 .. 1173 PAGE Hubbard v. Hubbard . . 461 V. Lees 807, 1009, 1014 ■!). Young .. .. 115 Hubbersty v. Manchester R. Co 414 Huber 1). Steiner .. .. 71 Hubert l). Parsons 1093, 1098, 1118 V. Treherne Huckvale, Goods of . . Huddleston v. Briscoe Huddlestone v. Briscoe Hudleston v. Whelpdale Hudson V. Ball V. Bective (E.) V. Carmichael i'. Coqk x\ Hudson V. Malcolm . . ('. Temple Hudson's case Hue, Be Huifam r. Hubbard . . Hughes, Ex parte , Re ., 1\ Bennett T. Biddulph . V. Cook V. Ellis V. Hosking V. Howard V. Hughes r. Jones 1017, 953 .. 1177 .. 952 .. 551 222, 223 .. 746 .. 929 316,347 .. 996 239 699 1018 . . 436 .. 917 .. 1136 . . 940 652, 701, 702 .. 1070 ,. 1062 . . 664 .. 1197 .. 1191 642, 643 .. 1256,1286 606, 958, 1029, 1059 .. 1076 ..541 . . 470 ..955 . . 957 620 V. Kearney . . V. Kelly V. Lumley v. Morris V. Parker V. Robotham . . . V. Wells 168, 377, 762, 989 V. Williams . 310, 542, 672 V. Young . • . . 604 Hughes' Trust . . . . 604 Hugo r. Williams 1218, ^dd. 1218 Huguenin v. Baseley 286, 287, 288, 289, 290 Hull, &c. Co. V. Wellesley . . 409 Hulme V. Chitty . . . . 387 4!. Tenant .. 379,764 HumberstonD.Humberston 559, 838 Humberstone ^. Stanton 1113,1197, 1198, 1199 Humble «. Hunter .. .. 1020 Hume I). Bentley .. ,.968 u Edwards .. ..1246 V. Peacock . . . . 967 v, Richardson . . . . 898 Table of Cases cited. PAGE Hume 1). Rundell .. 594', 1175 Humfrey ■!). Dale .. .. 76 1). Humfrey . . 1263 Humphery j). Richards . . 376 Humphrey v. Arabin . . 647 V. Bullen . . . . 330 V. Humphrey . . 374 V. Olver . . . . 842 1!. Tayleur .. 1198 Humphreys v. Harrison 670, 1154 T. Humphreys 1233, 1243, 1271 Humphries v. Brogden Hungate v. Gascoyne Hungerford v. Clay V. Earle Hunloke ». Gell Hunsden v. Cheyney Hunt, Ex parte V. Baker.. v. Bateman V. Danvers v. Elmes V. Hort . . ■ V. Hunt . . r. Matthews V. Neve .. r. Peake Hunt's case .. Hunters. Atkins V. Baxter V. Bullock V. Daniel V. Nockolds V. Walters Add. Hunter's Trusts, Re Huntley V. Russell Hurd V. Fletcher Hurle, Re Hurlstone v. Ashton Hurry v. Hurry V. Morgan Hurst 1'. Beach 151, 152, 174 1015 672 278 818 311 633 203 528 1083 685 1207 387,1178 .. 313 694, 695 151, 152 . . 442 287, 290 .. 242 AM. 42, 53 .. 83 541, 1042 686, 687, 688 686, 687, 688 1286 238 1083 490 822 . 462, 1263 .. 1128 128, 698, 857, 1239 ■!). Hurst .. 683,768 Hurtland v. Murrell . .' . . 639 Hussey u Berkeley .. .. 1283 Huicheson «. Hammond 111,1145 ■!). Jones .. .. 1287 Hutchin v. Mannington 1111, 1135 Hutchings D. Smith .. .. 333 Hutchins «. Lee .. .. 924 ■!;. Osborne.. .. 822 Hiitchinson, Re .. .. 1132 D. Barrow .. 1195 PAGE Hutchinson v. Copestake . . 145 Hutley V. Hutley . . Add. 82 Hutton v. Rossiter 246, 311, 1248 V. Scarborough Cliff Co. - 1). Sealey - v. Simpson ■ ■;;. Upfill Huxtep V. Brooman . Hyam's case . . Hyatt V. Griffiths Hyde v. Dallaway V. Graham V. Hyde 1169 11. Johnson .. •. 535 Hylton v. Hylton . . . . 287 HynshawD. Morpeth (Corp. of) 42 429, 432 .. 681 805, 1271 .. 400 .. 1224 408,415 .. 512 .. 534 . . 480 I. Ibbetson v. Beckwith V. Grote V. Ibbetson Ibbilson's Estate, Re Ibbotson V. Elam V. Rhodes Icely V. Grew. - Iggulden t). May llchester (E.), Ex parte V. Carnarvon . - .. 1274 .. 605 .. 228 .. 105 20, 1230 .. 688 981, 1022 219,501 297, 1183 .. 1324 .. 1207 .. 635 Illingworth v. Cooke «• Imbert, Ex parte Imp. Bank of China ». Bank of Hindustan .. .. .. 447 Imperial, &c. Co., Re .. 443 Imp. Gas Co. v. Broadbent . . 155 Imperial Merc. Cr. Assoc. ». Coleman .. .. Add. 425 In. & Lon. Life Co., Re Add. 430 Inchbald v. Harrington 154, 155 . V. Robinson . . Inchiquin (Ld.) v. French Incledun v. Northcote Incorp. Soc. v. Richards Ind's case Ingham v. Bickerdike Ingilby v. Amcotts . . Ingle !>. Partridge v. Richards Ingle's Trusts, Re Inglefield ti. Coghlan Ingoldby v. Ingoldby Ingram v. Ingram . V. Morecraft . 1). Stiff 154 .. 1321 357, 597 .. 524 Add. 409 .. 298 .. 184 884, 900 101, 245, 940 1215,1289 . 374,1184 .. 1174 .. 766 .. 137 121, 122 Table of Cases cited. Ivii PAGE Inman 1J. Iiin-.an .. Add. 638 1). Wearing .. .. 681 Innes v. Jackson . . 34'5, 346 U.Johnson .. 1234, !21;J V. Mitcliell .. .. 14 ('. Sayer .. .. 816 Inns of Court Hotel Co. . . 423 Insole, Re .. .. 364,391 Inwood c. Twyne .. 108,297 Ion ti. Ashton .. 50,1322 Irbyi;. Irby .. .. 618,691 Iredell u. Iredell .. .. 1285 Ireland v. Trembaith . . . . 365 ■!). Trembath . . .. 1129 Ireson )'. Denn . . . . 666 Irish, &c. Co. t). Johnson .. 91 Irnham v. Child . . . . 78 Irons t). Smallpiece .. 67,281 Irvin V. Ironmonger .. 19, 34, 35 Irvine v. Sullivan 866, 1205, 1206 Irving y. \'eitch . . . . 547 Irwin D. Farrar .. .. 807 Isaac, Re 206 U.Hughes .. .. 771 Isaacson v. Harwood . . 627, 904 Isenbergt). East India, &o. Co. 147 Isherwood w. Oldknow .. 787 Isle of Wight Ferry Co. .. 434 , Re 465, 467 Ithell w. Beane .. 561, 599, 816 Iveti. King .. 456,1117,1261 Ive's case .. . . . . 610 Ives w. Sams .. .. .. 510 Iveson u. Moore .. .. 144 Ivimey V. Stocker -. 136,151 Ivy t). Gilbert 593 Izod V. Izod .. .. .. 44 Jack V. Armstrong Jackson, Ex parte , Re .. V. Butler V. Calvert V. Cator V. Dover II. Hamilton V. Hobhouse V. Jackson .. 696 .. 744 .. 713 .. 634 202, 226, 1299 .. 505 .. 1138 .. 1201 .. 381 723, 840, 841, 951,956, 1097 V. Lever . . . . 993 V Majoribanks .. 1094 V. Neal . . . . 484 D. Nevircastle(D. of) 146,147 W. Jackson v. Noble V. Parker V. Petrie V. Howe V. Sedgwick . . V. Turquand .. V. Welsh D. Whitehead . . Jacob, Re • ■ Jacobs V. Amyatt ti. Richards . . Jacomb v. Harwood ■ . Jacques V. Cliambers . . Jacquet «'. Jacquet .. James, Ex parte , Goods of . . t). Calherwood f. Cohen V. Dean V. Durrant ■ V. Greaves . . f. Holmes .• V. Lichfield . . V. Rice V. Richardson ■ u. Salter V. Smith PAGE 1271, 1336 351, 662 .. 1037 .. 1090 .. 721 401, 426 .. 224 .. 957 .. 1099 .. 361 ,. 638 77, 238 1236, 1237, 528, 529 255,441,940 1189 71 1190 482 604 288 289 1059 635 1283 517,540 .. 1282 V. Wynford (Ld.) 1093, 1 103 Jame.son w. Stein .. 310,1064 Jaques V. Chambers .. .. 1201 Jarman i. Vye .. ,.1113 Jarratt v. Aldam .. ..291 Jarrold D. Houlston .. .. 122 Jaulerry «. Britten .. .. 657 Jauncey v. Knowles .. 721, 733 Jay V. Richardson 503, 505, 1070 Jayne t>. Hughes .. .. 524 Jeaffreson, Re .. .. 839 Jeaffreson's Trusts .. .. 1280 Jeakesjj. White .. .. 1039 Jeans v. Cooke . . 874, 875 Jebb u. Tugwell .. 115,775 Jee D. Audley ..748,749,756 Jefferies K. Reynous .. .. 1135 Jeffery D. De Vitre .. 867,1295 Jeffery's Trusts, Re . . Add. 845 JefFeryes I'. Agra, &c. Bank.. 721 Jefferys D. Dickson .. 663,674 V. Jefferys 67, 277, 380, 293 • V. Smith Jeff rys' Trusts, Re . V. Neale Jeffreys u. Boosey V. Conner ■ V. Connor V. Jeffreys V. Machu Jeffries v. Alexander , 731 .. 1246 . . 496 118,120, 121 .. 116 .. 1289 .. 1234 .. 225 .. SO Iviii Table of Cases cited. Jeffries v. Bucknall V, Michell PAGE 685 , 854 Jeffs ti. Wood 1250 Jegon «. Vivian .- .- 792 Jellicoe ». Gardiner .. .. 928 Jenkin 1). Row .. .. 681 Jenkins, Re .. .. .. 330" ■!). Blizard .. ..730 ^ V. Gower .. .. 1310 V. Green . . 478, 492 • J). Harvey ,. .. 137 1>. Hiles .. .. 1034 ^i). Hughes .. .. 1295 B.Hutchinson .. 77 W.Jones .. 678,1243 ^ t). Keymis or ICemish 278, 508 V. Quinchant . . Jenkinson, Re V. Harecourt V. Pepys Jenkyn v. Vaughan Jenkyns v. Bushby V. Gaisford Jenner, Ex parte V, Jenner V. Morgan ■ V. Morris 617, 830 .. 1051 .. 1324 .. 982 .. 273 .. 1063 .. 1177 .. 618 .. 62 21 209, 315, 643, 787 .. 763 .. 731 ,. 1084 . 90, 95, 1039 .. 1094 Jenney v. Andrews . Jennings y. Baddeley V. Blincore V. Broughton . V. Looks ». Moore .. .. 816 V. Rigby . • . . 36 V. Ward . . . . 629 Jepson D. Key .. 1194,1270 Jerdein ti. Bright .. .. 862 Jermyn ». Fellows . . . . 777 Jerningham «. Herbert 1164,1202 Jerrard ». Saunders .. .. 1087 Jersey (E.), Re .. ..489 V. Briton .. .. 1076 Jervis V. Lawrence .. •. 1249 r. Tompkinson .. -. 493 Jervoise w. Clarke .. .. 987 >;. Jervoise .. .• 358 V. Northumberland ( D. of).. V. Silk Jesson V. Jesson V. Wright Jessop V. Blake Jessopp V. Watson Jeston V. Key Jesus Coll. Cam., Re. V. Bloome . 556, 563, 1042 .. 595 849, 850 .. 204 391,601, 811 110, 111, 267 552, 562 42 .. 1157 PAGE Jeudwine I'. Alcock .. .. 1035 Jevers tJ. Jevers .. .. 289 Jew V. Wood 495 Jewan v. Whitworth . . . . 656 Jewson B. Moulson . . 359, 360 Job V. Banister . . . . 498 Jodrell V. Jodrell 24, 385, 582, 597 Joel V. Mills . . 31, 895, 1149, 1150 Johnson u. Arnold .. 105,1224 !). Ball .. .. 1173 . W.Barber .- -• ^^^ ». Child ' ■ — . V, Fesemeyer V. Gallager . V. Gallagher . V. Gcslett V. Hamilton . . «. Helleley .. ..739 V. Holdsworth . • 469 V. Johnson .. 114, 329, 332, 369, 618, 1234, 1246 38 ,939 764 379 394 262 • V. Kennett - w. Kershaw - V. Lander - V. Legard - V, Lyford - V. Newton - V. Ogilby . Roberts 1066 .. 895 .. 391 561,599 1174, 1187 .. 251 81 1022 V. Shrewsb. & Bir. Rail Co 87 V. Shrewsbury Rail. Co. 94 484, 960 .. 129 .. 1220 .. 161 .. 235 .. 622 155 146, V. Smart V. Smith V. Symcock V. Telford V. Warwick ' V. Webster V. Wyatt Johnson's Trusts .. .. 228 Johnston w. Harrowby (Ld.),. 1239 «. Lumb .. .. 377 ■ V. Kenton .. .. 413 V. Rowlands . • . . 865 V. Sumner . . . . 66 V. Swann . . . . 43 Johnstone w. Baber .. 460,812 V. Beattie . . . . 296 W.Hall .. ..499 W.Hamilton .. .. 261 V. Harrowby (E. of).. 1241 -. Usborne . . .. 76 J. S. Discount Co. w. Brown.. 428 Jollande w. Burdett .. .. 383 Jolly w. Arbuthnot .. ., 660 1). Handcock .. .. 1011 V, Rees .. . . .. 66 Table of Cases cited. lix Jones, Goods of , Re V. Hadley V. Barkley V. Boulter V. Bruce .. V. Colbeck V, Collier V. Cons. Inv. Co V. Creswicke V, Croucher V. Curry . • V. Davies u. Edney V. Evans . . V. Farrell V. Flint .. V. Frewin V. Gibbons V, Greatwood V. Green. . ' V. Gregory B.Hall .. V. Hancock V. Higgins V. How .. ■ V, Jones PAGE 1179 24 • V. Kearney - V. Keene. . • V, Laughton ■ i;. Lewis . . • V. Littledale ■ V. Lock . . - D. Mackilwain - V, Maggs ■ V. Martin - V. Mitchell • V. Morgan ■ V. Newman - ti. Noy . , ■ V. Ogle •• ■ V. Powles ■ V. Price .. - 1). Pugh . . ■ V. Randall • V. Ricketts - V. Robinson • V, Roe .. - V. Scott . . - V. Sefton. . • V. Selby ■ 1). Smith 1,699 51 68 279 1322 1312 353 647 681 276 819 317, 620 500,959,983 .. 1029 .. 635 .. 950 .. 1261 64-8, 668, 695 .. 866 .. 1244 .. 1175 454, 1132 .. 1201 380, 908, 909 .. 611 221,222, 223, 236, 356, 1135 .. 1084 .. 948 .. 557 251, 888 .. 77 .. 285 1094, 1118 .. 5,6 .. 610 .. 110 .. 203 .. 1207 731,732, 767 Add. 26 904, 1057 30, 1040 1062 16 318 461 1331 896 1228 127, 129 665, 666, 691, 1048, 1055, 1059 «. Southall 824,1197,1242 • I). Torin 1315 • V. Tripp . . . . 634 • 1). Tucker . . . . 820 PARK Jones J). Verney .. 790,791 V. Waite 385 V. Welch 733 V. Westcomb .. .. 1114 V. Williams 30, 41, 633, 1056, 1059 D. Winwood .. .. 770 t). Whittaker .. ., 277 V. Wyse 1149 Jones's case .. .. 438,640 Jongsma u. Jongsma .. 1222, 1226 Jope u. Morsliead .. .. 460 Jopp C.Wood 1098,1100,1112,1165 Jordan, Goods of ■■ .. 235 , Re 1261 ■ V. Admas - V. Fortescue - 11. Hotham • V. Lowe — V. Money 204, 205 .. 1270 .. 1139 .. 1298 .. 311 . . 627 •• 917 11, 941 Jortin V. S. E. Rail. Co Josephs* Will, Re Joy V. Birch . . Joyce V. De Moleyns 633, 634, 687, 1087 Joynes «. Statham .. .. 627 Jubber i>. Jnbber .. .. 1201 Julerw. Juler .. .. 261, 1314 Jumpson V. Pitchers 518, 998, 1031 Justice D. Wynne .. .. 283 Juxon V. Brian .. .. 589 K. Kampf B. Jones Kavanagh v. Jlorland Kay V. Johnson Kaye, Re ■ V. Saxon.. Kearsley v. Woodcock Keat V. Allen . . Keates v. Burton V. Lyon 107' Keats V. Hewer Kebble, Ex parte Keech v. Hall.. Keeling v. Brown Keene's Exors. case .. Keenan v. Handley . , K eep. Re Keer v. Brown Keightley v. Watson .. Keigwin v. Keigwin .. Keir v. Leeman Kekewich v. Manning V. Marker . (?2 .. 1336 .. 1298 . 93, 302, 424 295, 290, 861 .. r?24 578, 1150 .. 672 .. 798 0, 1071, 1086 .. 874 .. 1255 671,676 34, 37 414 82 1128 195 69 1178 81 282,283,284 .. 1158 Ix Table of Cases cited. PAGE Add. 146 .. 416 1171,1210 .. 1020 902, 908 .. 12K3 121, 656 .. 123 .. 1230 . . 394 .. 279 .. 68 94 .. 888 .. 335 .. 826 .. 499 .. 36 .. 724 .. 720 .. 42 .. 478 . . 683 1226, 1228 612, 699 (E.) . . 927 .. 661 Add. 816 .. 745 .. 1056 1011,1059, 1060,1061 K.Kennedy .. 1201 V. Kingston 773, 829 V. Panama, &c. Co. 404 Kennell c. Abbott .. .. Ill Kennersley v. Hossack . . 747 Kennett jj. Abbott ., .. 1257 Kenney ti. Wesham .. .. 993 Kenrick 1). Reid .. ..602 Kensington, Ex parte .. 625 v. Bouverie .. 209 (Ld.) V. Bouverie 666 u. Dolland .. 375 (Ld.)D.Mansell 213,214 Kent Ben. Build. Soc, Re 422, 640 Kent «. Burgess .. .. 304 V. Freehold, &c. Co. 404, 406 Kelk V, Pearson Kelk's case . . Kell V. Charmer 1). Nokes Kellaway v. Johnson Kellett D. Kellett Kelly V. Hutton . V. Morris V. Powlett Kelner v. Baxter Kelson v. Kelson Kemble v. Farren V. Kean Kemp tj. Burn V. Kelsey D. Kemp V. Sober.. V. Waddingham Kemptner, Re Kendal v. Wood Kendall v. Granger . V. Hill V. Hulls V. Kendall Kenebel v. Scrafton Kenlis (Ld.) v. Bectiv Kennard v. Futvoye J). Kennard Kennedy, Ex parte V. Daly - V. Green V. Riley Kentish v. Newman Kenworthy v. Bale V. Ward Add. 272 .. 613 .. 780 452, 453 .. 959 1184,1233 .. 1203 Ker V. Clobury Kermode v. Macdonald Kerr v. Clinton (Ly.) jj. Middlesex Hospital . .13, 14 «. Pawson .. .. 1001 Kerr's Policy, Re . . . . 634 PAGE Kerrison «. Dorrien .. .. 276 Kerry u. Derrick .. .. 1224 Kershaw ». Kershaw . . 976, 1306 u. Matthews . . .. 731 Kevern ti. Williams .. .. 1286 Kevin D. Davies .. ..22,23 Key D. Bradshaw .. .. 572 . 1). Key 1104 Keynsham Co. .. .. 443 Keyse ('. Powell ,. 211,517 Kiddell K. Farnell .. ..282 Kidney v. Coussmaker 273, 1320 Killick, Ex parte . . 373, 375 , Re .. .. 1178,1180 Killock'scase .. .. 441 KilpiuD.Kilpin .. 863,875 Kilshaw J). Jukes .. 710,711 Kilvert'sTrusts, Re 1203^d<;. 1203 Kilvington ». Gray .• .. 113 Kimberley ti. Jennings .. 89 u. Tew .. .- 1112 Kimpton, Re .. -. 1177 Kincaid, Re .. 367,368 Kincaid's case ,. .. 405 Kinch u. Ward .. ..201 Kinderley v. Jer vis . . 247, 467 King, Ex parte .. .. 745 . , Re .. .. 888,1260 u. Bellord .. ..933 !). Bennett .. .. 1290 ■ «. Burchell .. .. 1297 D. Chuck .. ..709 • D. Oeaveknd .. .. 1313 V. Cotton ,. .. 312 t). Denison .. .. 869 V. Hake .. .. 1137 D. Isaacson .. .. 1100 V. King 163, 291, 329, 627, 842,1038 «. Marshall .. .. 421 ti. Melling .. 770,1297 t). Ringstead .. .. 1271 ■!?. Savery .. .. 291 D.Smith .. 671,699 D.Warren .. .. 802 D. Willes .. .. 169 D. Withers .. .. 1102 V. Wycombe Rail. Co. . . 945 King's case .. .. .. 408 Mortgage, Re .. 1259 Kingdon t). Bridges .. .. 872 V. Nettle . . . . 503 Kingsford v. Ball . . . . 455 0. Swinford .. 97 Kingsley, Re .. ..390 W.Young .. ..1001 Kingsmill v. Millard 492,512 Kinnerley v. Hossack . , 7i-7 Table of Cases cited. Ixi Kiniioul V. Money Kinsman v. Barker Kintrea's case Kirby, Re II. Barton PAGE 347 726 415 1171 2o8 V. Potter 1233, 1234, 1236 Kircudbright (Ld.)t). Kircud- bright (Ld.) .. 265,266 Kirk f. Blurton .. ..714 V. Guardians of Bromley Union . . . . 955 ». Eddowes 847, 848, 857 V. Paulin .. .. 374 Kirkbride's Trusts .. .. 1220 Kirke v. Kirke Kirkman v. Booth ■ V. Lewis V. Miles Kirkman's Trusts Kirkpatrick v. Chapel - V. Kilpatrick .. 1189 254, 256 53 .. 108 .. 1263 .. 769 229,1217 .. 679 .. 738 Kirkwood v. Thompson Kirwan v. Kirwan Knapp ». Knapp 590, Add. 590 V L. C. & D. Rail. Co. 946 K. Noyes .. 1143,1144 W.Williams .. .. 50 Knapping v. Tomlinson 748, 749, 750, 752, 1331 Knatchbull v. Fearnhead 240, 241, 877, 893 11. Grueber 1017,1034 Knight V. Bowyer 83, 541, 939, lOCO D. Bulkeley .. ..655 ^ K.Cameron 1095,1121, 1123, 1143 U.Davis .. ..1237 w. Duplessis .. .. 297 D.Ellis .. 202,1298 V. Knight 383, 566, 865, 1119, 1123, 1210, 1229 V. Marjoribanks V. Pocock V. Poole V. Robinson V. Selby Kniglu's case Trusts, Re Knollys v. Alcock - V. Shepherd 679 990 1130 1260 1273 416 892,917 1182 995 1266 Knotst'ord v. Gardiner Knott, Ex parte 692, 693, 1088 V. Cotte . . . . 8 V. Cottee 252, 295, 297 Knox V. Gye . . 727, Add. 727 » Kelly 529 W.Turner .. 11,647 B.Wells .. 15,378 Knye v. Moore Koeber v. Sturgis Kooystra v. Lucas Kyniiaird v. Leslie PAGE 82 361,368 . . 492 186, 187 Labouchere v. Tupper 253, 254 Lacey, Ex parte . . . . 940 V. Ingle .. .. 693,1077 Lachlan v. Reynolds 753, 959, 989, 1265 Lackersteen v. Lackersteen 612,616 Lacon v. Al V. LifTen ■ ■ V. Mertens Ladyman v. Grave Laing, Ex parte V. Reed Laird v. Pirn - r. Tobin Lake«. Argyll (D. of) V Brutton ,, V. Craddock v. Currie V. Dean i\ De Lambert . . ■ V. Gibson V. Thomas Lakin v. Lakin Lamb v. Milnes Lambarde v. Older .. V.Peach Lambe iJ. Eames ■ v. Hanman V. Stoughton Lambert v. Lambert V. Norris V. Overton '('. Peyton V. Rogers • V. Thwaites 633 646, 654 .. 642 Add. 142 .. 634 .. 640 .. 1022 .. 614 .. 712 .. 629 740, 948 .. 1194 .. 976 .. 861 .. 948 .. 534 .. 831 .. 374 .. 244 .. 928 .. 868 .. 572 3 .. 1234 .. 503 128, 1213 .. 557 .. 1006 773, 774 .. 1226 .. 329 874, 875 566,811, 1202, 1288 Lane. Can. Co., Ex parte .. 649 Lancaster 11. Evors .. 346,669 Lancaster, &c. Rail, Co. v. N. ^ W. Rail. Co 94 Lance u. Aglionby .. .. 1322 t). Norman .. 312,313 Land w. Devaynes .. .. 1243 Land, &c. Co. of Ireland, Re 420, 422 ■ w. Fermoy(Ld.) 422, 426, 429 Landell 1'. Baker .. .. 462 Ijamphier v. Despard l.amphir v. Creed • ■ Lamplugh v. Lamplugh Lancashire v. Lancashire Ixii Table of Cases cited. PAGE Landon, Re .. .. .. 911 Lane ti. Debenham .. 765,766, 887, 1040, 1042 V. Dighton 246, 608, 905 V. Goudge 1103, 1119, 1121 ■ ^j). Green 1216 ^ I). Newdigate .. .. 93 I). Page . . . . 842, 843 J). Stanhope .. .. 1266 V. Sterne . • . ■ 728 Lane's case .. .. .. 409 Lanesborough (Ly.) v. Fox .. 748, 1336 145 568 Lanfranchi v. Mackenzie Lang V. Lang .. «. Pugh 1217 Langdale, Ex parte .. .. 709 (Ly.) V. Briggs 1195, 1324 U.Whitfield .. 1229 Langford, Ee 898 . V. Anger .• .. 1259 V. Gascoyne • . 248 V. Gowland . . 44 (Ld.) J). Little .. 804 D.Pitt .. ..996 ti. Selmes .. 480,962 Langham v. Bewett .. .. 329 . V. East Wheal, 8:c. Co 405 w. Nenny .. 614,760 - V. Sandford Langham's Will, Re . . Langley Mill, &c. Co., Re V, Baldwin V. Hammond . . V. Hawk • . Langmead, Re Langmead's Trusts .. Langridge ti. Paine . . Langslow v. Langslow Langstaffu. Fenwick.. 1208 .. 434 .. 1307 .. 136 .. 234 736,737 739, 1066 .. 657 159,844 629,672 Langston, Ex parte 631, 635, 1218 ■ V. Ollivant Langton v, Horton V. Langton ' V. Waite Lanoy t;. Athol (D.) 900 .. 646 .. 699 653, 680 33,330,588, 689, 1324 1114,1262 .. 988 Lanphier i). Buck Lansdown v. Elderton Lansdowne (Marq.), Re .. 1173 • J). Lansdowne .. 1160 Lantsbery u. Collier .. .. 801 Lapsley ti. Grierson .. .. 1013 Large's case ., ,. .. 1148 Larkin «. Marshall .. .. 381 Larner B. Lamer .. ,. 126S Lashbrook v. Cock . . . , 456 PAGE Lassells v. Cornwallis (Ld.)763, 844 Lassence v. Tierney 550, 552, 554, 1233 La Terriere 1). Bulmer .. 113 Latham, Re 1179 La Touche v. La Touche Laundy v, Williams .. Laurie o, Bankes ' V. Glutton Lavender v. Blackstone Laver v. Fielder •■ Lavery v. Turley . . Law, Re . V. Glen .. •• V. Thompson Lawder «. Blachford . . Lawes v. Bennett V.Gibson .« Lawless i>. Shaw . . Lawrence v. Bowie . . ■ V. Campbell V. Hogben . . ■ V. Lawrence V. Maggs . . . ■ u. Obee V.Smith ■ V. Wallis . . Lawrence's case Lawrenson v. Butler . . Lawson v. Lawson ■ V. Stitch V. Swetenham 379 1251 684 834 278 552 954 674, 690 1098,1135 89 101, 995 .. 976 .. 865 .. 907 ,. 894 .. 677 352,617 .. 222 .. 145 82, 121 .. 828 .. 405 .. 815 127, 128, 323 .. 1233 .. 587 .. 61 .. 529 209, 238 24 Lawton v. Campion . V. Ford V. Lawton .. Lawton's Estates, Re Layard ». Maud .. .. 686 Layton v. Layton . . ^ . . 367 Lazonby v. .6,awwoM'^.T • • 246 Lea J). GcMfidy .. .. 377 y." Henton .. •• 647 Leach K. Mullett .. .. 960 Leacroft K. Maynard .. .. 1241 Leadow u. Fleetwood . . .. 559 Leaf «). Coles 737 Leagh v. Mosley . . , . 454 Leake D. M'Dowall .. .. 454 V. Robinson 749, 756, 1099, 1100,1118, 1123, 1268 917 1122 1149 732 Leake's Trusts, Re Leaming v. Sherratt .. Lear v. Leggatt Leary v. Shout Leather Cloth Co.u. American L. Cloth Co. !). Lprsont . . Leathes, Ex parte Lcathley v. French . . 736 81 633 23 Table of Cases cited. Ixiii PAGE Lechmere II. Brotheiidge .. 378 D. Carlisle (E. of) 93,100, 104, 608, e09 - c. Charlton ■ V. Clamp ■ r. Lavie 591,1324. .. fiSl 865, 868 Add. 988 .. 1157 .. 1248 1094,1305 .. 610 .. 470 121 Lee, Ex pane V. Alston V. Brown —— V. Busk . . V. D'Aranda V. Green V. Haley r. Head 589 ■ !-. Howlett .. .. 652 B.Lee .. .. 1216,1312 «!. Muggeridge .. 335, 762 1). Old'ing .. ..774 1). Pain 857,1198,1210,1239 V. Park 258 V. Prieaux . . . . 374 r. Sankey .. Add.^ii u Smith .. .. 494 t). Willmot .. .. 546 Leech u. Leech .. .. 588 Leech's Claim .. ,. 441 Leedham K. Chawer .. .. 886 Leeds v. Barnardiston 303, 305 ?'. Cheetham.. 495, 496,498 (D. of) V. Amherst(E.) 311, 1157 (D. of) V. Corp. New Radnor . Bennett . . 10 230 439 1128 1311,1314 Leek Leeke's case Leeming v. Sherratt Lees V. Massey ■ 1). Mosley .. 1297,1299 ti. Nuttall .. ..938 Lefevre «. Freeland .. .. 832 Lefroy v. Walsh . . . . 788 Leftley r. Mills .. .. 21 Legard i). Hodges .. .. 607 Legg V. Goldwire . . 655, 557 Legged. Asgill .. ..1229 11. Legge .. 209,1154 Leggatt V. Metrop. Bail. Co. 992 Le Grice ^. Finch .. 1234,1237 Lehmann v. M'Arthur 9o, 501 Leicester Bank Co., Ex parte 744 Leicester's case Leifchild's case Leigh V. Byron V. Leigh . ■ V. Lloyd V. Mosley V. Norbury 807 76, 429, 438 .. 1292 1151,1198 638,692 .. 1132 .. 1296 PACE Leighton r. Bailie .. •. 1268 Leith «. Irvine .. .. C29 r. Norbury .. .. 779 Limage V. Goodban .. .. 1184 Leman u. Whitby .. .. 871 Lemayne V. Stanley .. .. 1177 Lench v. Lench 2-16, 608, 609, 871, 905 Le Neve i;. Le Neve .. 695 Leonard t>. E. Sussex 564,565 Lepard (,-. Vernon .. .. 635 Lepine i;. Bean .. ..1291 V. Ferard .. ..1303 «. Ferrard .. .. 748 Leslie v. Devonshire (D. of).. 1201 Lester t'. Garland .. 578,1110 Lethem B.Hall .. ..302 Lethbridge v. Kirkman 967, 980 1-. Lethbridge .. 1225 LethieuUier r. Tracy .. 1152 Lett V. Randall 13, 14, 749, 754 Letts V. Hutchins . . . . 662 Leuty V. Hillas 91, 1058, 1068, 1079 .. 332 .. 715 400, 402 Add.n^ .. 313 . . 456 E.) 92, 93, 96 .. 1133 .. 364 985, 998, 1044 .. 1246 .. 367 .. 645 .. 1186 298,1191 Add. 52 .. 713 476,1060 .. 713 123 198,542,934 .. 593 .. 121 916,941 211,870 1179, 1325 819,822 605,609,610 .. 76 375,1250,1259 316,347,662 ..982 .. 1062 Levasseur v. Scratton Leverson v. Lane Levita's case . • Levy V. Rutley Le'-\ellin v. Cobbold Lewen v. Dodd Lewersi'. Shaftesbury Lewes' Trusts, Re Lewin, Re V. Guest B. Lewin Lewin's Trusts, Re Lewis, Ex parte , Goods of , Re V. Allenby v. Armstrong V. Bond.. ■ V. Bright V. Chapman V. Duncombe V. Freake '!'. Fullarton r. Hillman V. Lane.. V. Lewis V. Llewellyn V. Madocks V. Marshall V. Matthews . r. Nangle ■ V. Nicholson V. Pennington Ixiv Table of Cases cited. 19, 531 454, 1306, 1329 1158 459 35, 592 524 961 1201 511 611 PAGE Lewis ?). Puxley .. .. 1295 V. Rees 273, 277, 518, 519, 835, 879 i;. S. W. Rail. Co. .. 975 v. Thomas ■ V. Waters Lewis Bowles' case Ley V. Cox . • 1). Ley . . V. Peter . . Leyland i). lUingworth Liddard v. Liddard 558, 864, Liddy v. Kennedy Liebman v. Harcourt. . Liefe v. Saltingston 764, 795, 826, 839 Life Assoc, of Scotland v. Siddal .. .. 532,909 Life Assurance of Scotland v. Siddall .. 192,361,893 Liford's case .. ,. 132 Liggins 1). Inge .. .. 132 Lightfoot «. Burstall . . .. 1268 Like v. Beresford . . . . 303 LiIford(Ld.)«. Keck 37,1195 Lilli). Lill 16 Lilley S.Allen .. ..092 Limbard «. Grote .. ..777 Limbrey 1). Gurr . . . • 56 Lincoln (Ld.)i). Arcedeckne. . 1039 (Ly.)w. Newcastle (D.of) 227, 228, 563 ■ D. Pelham .. ..1288 V. Windsor . . . . 885 u. Wright 248,627,953,954 Lindley u. _ Lacey .. 75 Lindow v. Fleetwood. . .. 910 Lindsay ti. Lynch 86, 954 Lindsell w. Thacker . . .. 374 Lindus v. Melrose 420, 424 Line v. Stephenson .. .. 502 Ling v. Ling . . .. 618 Lingard v. Bromley . . .. 904 Lingen v. Sowray .. 108 Lingwood v. Bade .. 729 «. Gyde . . .. 215 Linley v. Bonsor . . 546 Linnon v. Napper .. 1017 Linsell v. Bonsor 546, 547 Linzee, Re .. 383 Lipscomb u. Lipscomb .. 667 Lisburner (E.) «. Davies .. 512 Lisle D. Tompson .. 970 Lister v. Bradley .. 1121 V. Hodgson .. 292 r. Pickford 529, 1213, 1225 ?). Smith .. 1205 Lister v. Tidd V. Turner Littlehampton Steam, &c. Co. Littlewood v. Pattison Liverpool B. Bank v. Turner.. •V. Walker. PAGE 652, 1315 634 402 116 653 715 81 V. Rose V. Rous Lloyd V. Attwood Liverpool Corp, v. Wright Livesey v. Harding 652, 699, 1317 ■ V. Livesey 778, 892, 1252 Livock, Goods of .. ..1189 Llewellyn D, Jersey (Ld.) .. 1068 ..55 23, 24 650, 684, 689, 690, 909 «. Banks .. 648,649 IJ. Brandon 1107,1141,1142 w. Cheetham . . . . 655 V. Cocker .. .. 584 •6,. CoUett .. .. 1017 o. Crispe . . . . 1000 V. Griffith . . . . 1069 V. Guibert . . . . 70 V. Harvey . . . . 856 V. Jackson .. .. 1273 ■u. Johnes .. .. 990 V. Jones . . . . 674 I/. Lloyd 197,351,561,562, 837,869,883, 1084, 1117, 1126, 1150, 1194 V. Mason ■ V. Pughe V. Spillett V. Tomkins V. Wait ■ V. Williams Loader v. Clarke Lobb V. Stanley Loch u. Bagley Lock V. De Burgh V. Furze Locke V. Matthews Lockhart);. Hardy 676,681,682,1323 Locking t). Parker .. Add. 6^1 Lockwood V. Fenton . Loddington v. Kime , Lodge V. Pritchard . Loft'us V. Maw Loftus V. Swift Logan V. Bell . . V. Berke V. Fairlee V. Wienholt . Lomas v. Wright Lomax v. Lomax V. Holmeden . V. Ripley 370 Add. 376 922,924 .. 1083 ..663 369, 370, 1254 .. 314 . . 953 ..566 23 . . 493 482, 521, 523 .. 698 1298, 1329 742, 744 .. 1188 .. 210 813, 1182 385, 386 .. 296 68, 556 31, 281 .. 1255 892, 1290 54 Table of Cases cited. Ixv PAGE Londesborough (Ld.) "■ Foster 215 V. Somer- ville .. .. 1251 London u. Yarrow .. .. 52 (Bp.) D.Webb .. 1160 (City of) V. Riclimond 1033 (Mayorof) i>. Pewterers 141 • ■ (Mayor and Corpora- tion of) V. Soutligate 93 & Bir. Rail. Co. v. Winter .. .. 424 Bridge Acts, Re .. 1070 ■ Cotton Co 447 & County Coal Co. . . 433 , &o., Co. V. Brown . . 633 Dock Co. I). Sinnott 74, 424 India Rubber Co. . . 442 & Merc. Disc. Co. . . 435 Mon.Adv.Co.ii. Brown 683 & N. W. Rail. Co. a. M'Miehael.. .. 485 SiN.W.Rail.Co.i) West 511 Quays, &c. Co., Re . . 445 , &c. Society v. Brown 682 Suburban 13ank, Re. . Add. 408, 434 Wharf, &c. Co. 433,434 Londonderry (Ly.) 11. Wayne 781 Long V. Bowring .. .. 68 V. Clopton . • . . 669 V. Collier 970, 1043, 1044 • V. Kent 1252 V. Long 304, 597, 780, 837 V. Rankin '. . . . 768 V. Short .. .. 35, 1236 B. Watkinson .. 1312,1313 Longbottom V. Berry 643, Add. 643 V. Pearce Add. Longdon v. Simpson Longford v. Eyre Longhead v. Phelps Longinotto v. Morss Longley v, Longley . . Longman v. Winchester Longmate v. Ledger .. Longmore u. Broon .. v. Elcum .. Longworth's Executor's case Lonsdale (Ld.) v. Beckett . . u. Berchtoldt Loomes u. Stotherd .. Lord V. Bunn . . V. Commissioners of Syd- ney .. • V. Lord . . V. Thomas Lord V. Wardle . . 305 4 807 755 1046 869 121 1080 845 866 403 911 1238 245 1150 1002 1254 534 237 PAGE Lord 1). Wightwick .. .. 106 Lorinier, Re .. .. .. 917 Loring t). Thomas .. .. 1282 Loscombe K. Wintringham .. 42 Lovat (Ld.) V. Leeds(Dss. oQ 1160 w. Ranelagh (Ld.) .. 500 Love V. Gaze .. .. 261, 263 Lovegrove, Re .. .. 1172 V. Cooper.. Lovejoy o. Crafter Lovelace, Re Lovell t). Knight V. Lovell V. Smith 764,1051, 32 1284 1054 823 212 144 648 1169 202 Loveridge v. Cooper . . Lovett V, Lovett Low V. Burron U.Carter 873 U.Holmes .. .. 939 V. Urlwin .. .. 1042 W.Ward 121 Lowe V. Carpenter — - u. Davies I. Manners V. Morgan V. Peskett t>. Thomas 141, 143 .. 205 1110, 1147 . . 682 .. 32 1228 Lowe's case .. ,. .. 412 • Settlement, Re Lowndes ». Settle V.Lowndes.. ■ V. Norton . . t). Stamford (E.) Lowry's Will, Re Lowson V. Copeland Lowther «. Carleton V. Cavendish V. Condon V, Westmoreland (Ld Loxley v. Heath Loyd V. Mansell V. Read . . Luard's case . . Lucas, Ex parte D. Brandreth 552, V. Dennison V. Goldsmid V. James V. Jones V. Williams Lucy's case Luders v. Anstey Ludlow V. Bunbury . . (Mayor of) D. Charlton 74, 424 Luff V. Lord 910 .. 651 .. 1160 .. 1255 .. 1183 23 Add. 701 .. 251 .. 1056 .. 1108 .. 1102 558 555 682 870, 873, 874 437 650 104, 105, 453, 1310 535, 539 . 456, 1309 952,953 50 241, 253 .. 60 .. 551 1148 Table of Cases cited. Lufkin.'W. Nunn Lugar V. Harman Lukey v, Hif);gs Lumb V. Milnes Lumley v. Wagner Lumsden v. Fraser Lumsden's case Lund's case . . Lunn v< Thornton Lupton V. White Lush V. Wilkinson Lush's Trusts, Re Lushington tJ. Boldero •u. Onslow IjUther V. Kidby Lutkins i). Leigh Luttrell V. Olmius V. Weston Luttrell's case Lutwych V. Winford . . Lutwyche v, Lutwyche Luxford V. Cheeke Luxmore t). Eobson .- Lycett V. Staff. & Uttox. Rail. Co. Lydall v. Weston Lyddonw. Ellison .565, - V. Lyddon PAGE 484, 1056 . 1289 . 1072 . 375 94, 95 . 99i . 4ia . 415 . 646 31,905 . 272 . 365 1155, 1159, 1160 1174 1IS2 87 844 484 145 1041 264 1104 497 Lyde v. Mynn Lygon u. Coventry (Ld.) Lyle V. Richards V. Yarborough (E.) Lyne v. Lyne .. Lyne's Estate . . Lyon V, Baker • V. .Coward u. Dillimore V. Home V. Mitchell V. Reed . * Lyon's case .. Lyons u. Blenkin Lyse V. Kingdon Lyster v. DoUand • . Lystor's case.. Lyth t). Ault.. Lyttleton v. Cross Lytton V. G. N. Rail. Co. Lywood V. Warwick . . M. M'Adam v. Logan M'Cachen v. Dew 1076 1040 566, 847 594 84 597 1068 1004 1090 1245 885 1262 146 288 1297 1012 403 299, 300 904 948 417 738 244 93 1278 811 907 PAGE M'Carogher v. Whieldon . . 678 M'Cormickw. Garnett 364,1250 M'Creight J). Foster .. .. 1056 M'CuUoch u. Bland .. ... 281 V. Gregory 979, 980, 1008 V. M'CulIoch . . 865 M'Donald D. Bryce .. 3,1133 M'Donnel u. White .. .. 530 M'Donnell w. Hesilrige 292,312 «. M'Kinty .. 517 D.Pope .. .. 510 U.White.. .. 890 McDougallv, Jersey Hotel Co. 429 McEwen v. West London Wharves, &c. Co. .. Add. 402 M'Fadden v. Jenkyns 284, 285, 863 M'Garrogher J). Whieldon .. 852 M'Gregor v. M'Gregor 453, 1263, 1301 M' Henry 1). Davies .. .. 379 MoKechnie I). Vaughan Add. 121G M'Kenna, Ex parte .. .. 723 M'Lachlan t). Taitt .. 1095,1099, 1103 M'Lean «. Longlands .. 376 M'Leod V. Dnimmond . . 639 M'Mahon D. Burchell .. 1250 M'Murdo, Goods of . . .. 1180 McMurray v. Spicer 95, 978, 1000, 1019 M'Neill t). Cahill .. ..696 w. Reid .. .. 67 M'Neill's case .. .. 406 M'Neillie K. Acton .. .. 254 M'Queen v. Farquhar 794, 808, 826, 841, 963 M'Turk, Ex parte .. .. 650 WcVicar, Goods of .. .. 1182 Maber v. Maber . . 539, 547 Maberley K. Robins .. .. 1039 Maberly t). Strode .. .. 1221 u. Turton ,. .. 596 Macaree «. Tall .. .. 1274 Jlacaulay i). Phillips 360, 370 Macbryde u. Weekes. . .. 1018, 1019 Macclesfield 1). Davis .. 230 IMacdonald u. Bryce .. .. 5 V. Walker 678, 1041 Macey v. Shurmer . . . . 826 Macfarlane v. Rolt 1063, Add. 1063 Machell u. Weeding .. .. 1302 Macher ii. Foundling Hosp. . . 499 Wacllwraith v. Pub, &c. Co. Add. 439 Table of Cases cited. Ixvi PAGE Macintosh w, Townsend .. 48 Macintyre ti. Belcher.. .. T^l «. Connell.. .. 471 Mack t). Fetter .. Add. 121 Mackay, Re 729 V. Douglas . . jidd. 273 Mackdowell t). Halfpenny .. 855 Mackelli). Winter .. .. 1318 Mackenna v. Parkes . . . . 722 Mackenzie D. Bradbury .. 1270 V. Mackenzie 201, 1241, 1312 Mackenzie's Settlement, Re. . 605 Mackett v. Mackett 868, Add. 868 Mackie «. Mackie .. .. 114 Mackinnon V. Peach .. .. 1198 1). Sewell.. 11 14, 1137 Mackintosh v. Barber . . 798 Macklin D. Richardson .. 121 Mackreth t>. Marlar .. .. 1045 I). Symmons 904, 1056, 1075, 1076, 1077 Maclae «. Sutherland .. 714 Maclaren t). St'ainton.. .. 1230 Maclean D. Dunn .. .. 934 Macleod «. Annersley , . 900 . ■ U.Buchanan .. 652 V. Drummond .. 254 Maclurcan v. Lane 606, 607, 615 Macnab v. Wbitbread . . 864 Macnamara u. Jones .. 159,886 Macnea ». Gorst .. .. 656 Macoubrey v. Jones .. 778, 1290 Macpherson v. Macpherson 113, 248 t;. Symons .. .. 692 Maddick v. Marshall . . 394 Maddison D. Andrew.. .i 772 V. Chapman 348, 1103, 1112 Maddox D. Staines .. .. 1308 Madeley J). Booth .. 658,1000 Madgwick v. Wimble 728, 731 Magennis v. Fallon 960, 993, • 1034 TMaguire, Re • • . . , . 44 V. Armstrong . . 1057 ». Dodd .. .. 129 Mahon(Ld.)i;. Stanhope (Ld.) 1159 Mainwaring v. Baxter . . 200 D. Beevor ,. 1286 Mainwaring's Settlement . . 602 Mair «. Glennie .. .. 710 V. Himalaya Tea Co. . . 94 Maitland v. Mackinnon . . 492 «. Wilson .. .. 1090 Maitland's case .. .. 394 Major jj. Lansley ,. .. 378 Major V. Ward Majoribanks v. Ilovenden Makin v. Watkinson.. Makings?). Makings.. Malcohn u. Charlesworth ■ V. Martin . . V. O'Callaghan V. Scott V. Taylor Maiden v. Menill "Fyson PAGE 678 696 502 209 1079 1289 111-2, 1144,1146 .. 636 1258,1269, 1304 .. 1079 1023,1042 826, 864, 865 .. 1042 91, 983 .. Ill 81 297, 300 .. 400 .. 1058 . . 244 989, 1011 61 Malim v. Keighley Malingt). Hill i\Jalins V, Freeman ., Mallabar v. Mallabar Mallan v. May Mallinson v. MalUnson Mallorie, Ex parte . . Malpas D. Ackland .. Maltby v. Russell Man i'. Ricketts Manby u. Bewicke Manchester, &c. Assoc, Re 430 Rail. Co., Re .. 101 Mandeno 1). Mandeno .. 987 Mandeville t>. Lackey .. 1300 Mandeville's case .. .. 186 Manfield f. Dugard .. .. 1097 Mangin u. Mangin .. .. 1229 Mangles u. Dixon .. .. 647 Manlove «. Ball .. .. 681 Mann «. Copland .. 18,1236 V. Fuller .. 1241, 1270 V. hang . . . . 246 V. Thompson . . Mann's cas& .. Manners u. Furze Manneville v. De Manneville Manning, Ex parte . . — - — — ■ 1). Andrews t). Chambers ■ ■ V. Phelps . . V. Purcell . , ■ V. Taylor . . V. Thesiger Manningford v. Toleman Mannox v. Greener . . Mansell v, Mansell . . V. Price Manser v. Back V. Dix Mansergh u. Campbell Mansfield v. Ogle Manti). Leith 900 Mapleton I'. Mapletiin .. 813 1288 413 675 302 .. 990 .. 169 .. 1151 .. 541 1175,1228, 1230 .. 1274 .. 1239 .. 634 Add. 1225 179, 904 .. 830 982, 983 .. 1063 13, 14 IS Ixviii Table of Cases cited. PAGE MappK. Elcock 167,262,868 Mara w. Mannings .. 378,380 Mardver, Re 1164 March w. March .. 297,618 V. Russell 241, 877, 909, 1252 Marchant V. Cragg .. .. 454 Marge tts D. Barringer .. 373 Margitson t). Hall .. .. 1262 Marine, &c. Co. v. Haviside 1012, Add. 1012 Mansions Co., Re . . 423 Marino's case.. .< •• 413 Marl? B.Smith .. ..787 Marli's Trust Deed, Re .. 643 Markby, Re 23 Marker I). Marker .. 532,1158 Markwell t). Markwell .. 281 Marlborough Club Co., Re . . 438 (D. of) V. Godol- phin (Ld.) 325, 755, 827, 830, 845, 1196 Marlow ti. Smith Marples v. Bainbridge y. Hartley Marret w. Sly .. Marriott, Re .. I V. Abell V. Anchor Co. K.Turner 1039 1140 646 1201 162 1113 653, 672 1265 627 841 Marryat ». Marryat .. Marsden's Trusts, Re Marseilles Extension Rail. Co., Re .. .. Add.ilQ ti. Rail. Co. . . 444, 445 Marsh «. Att.-Gen. .. 43,49 r. Conquest .• .. 120 D.Evans .. .. 1246 V. Favpkes .. .. 1322 ». Keating .. .. 717 tj. Lee 692 ». Marsh .. 1172,1177, 1191 Marshall, Ex parte .. Add. HI 11. Baker .. 558,587 V. Broadhurst 79, 254 V. Coleman . . 732 ». Collett .. .. 1079 K. Fowler .. ..367 ■- V. Gibbins . . . . 3.59 -^- -i;. Grime .. 204,1303 V. Holloway 4, 886, 1323 • 1). Hopkins - V. Peascod - . . «. Rutton . . D. Sladden V. Smith 1219 .. 182 65, 707 801, 1044 .. 353 Marshall's Settled Estates, Re Add. 190 Marson v. L. C. & D. Rail. Co Marston v. Cowan V. Rowe Martelli v. Holloway Martin, Ex parte , Goods of , Re . . V. Cotter V. Foster V. Goble V. Headon V. Hobson V. Holgate V. Laverton . V. Long ■ V. Martin V. Mitchell . . V. Pycroft V. Roe V. Sedgwick . ■ V. Swannell . V. Williams , FACE 945 .. 816 .. 1182 . Add. 1195 .. 883 .. 1172 .. 1168 963, 1060 303, 304 .. 145 145, 146 Add. 1230 1130, 1263 .. 1259 .. 1303 597, 1134 85, 933, 952 75, 1030 .. 238 650, 651 .. 845 .. 1083 Martin's Anchor Co. v. Morton 437 Martindale ». Booth .. 271,644 II. Picquot.. .. 239 Martineau 1). Rogers . . .. 1136 Martins D. Gardiner .. ..1188 Martyn t). Clue .. .. 503 V.Gray .. .. 712 D.Williams .. .. 507 Martyr ». Lawrence 135, 491, 1068 Maskell w. Farrington .. 1321 Mason, Re .. .. 833, 1229 7). Baker .. .. 12S9 ». Bateson .. 1202, 1207 V. Broadbent . . . . 542 V. Clark .. .. 1295 ■ ■ t). Mitchell .. .. 389 ». Morgan .. .. 329 «. Morley .. .. 891 — ■ — -v. Tile Shrews, and Heref. Rail. Co. .. Add. ISO Massey, Ex parte . . . . 373 K.Banner .. .. 890 1. Barton .. .. 836 V. Bowen 374, 375, Add. 374 K. Gorder .. .. 152 K.Hudson .. .. 1104 V. Parker . . . . 375 • «. Sladen .. .. 660 Massy v. Lloyd . . . . 587 Master v. De Croismar . . 797 V. Fuller . . . . 379 Masters D. Masters .. .. 1173 ■ ■ K. Scales .. .. 1262 Masters' case .. .. Add. 415 Mather v. Eraser . . 238, 644 I-: Scott . . . . 53 Table of Cases cited. Ixix Mathew v. Brise Mathews v. Foulsham V. Keble V. Mathews . Mathieson v. Hairod. Mathison v. Clark Matson v. Dennis V. Swift Matterson d. Eklerfield Matthew v. Bowler .. ■ V. Osborne IMatthewman's case .. Matthews, Ex parte . . tj. Brise t). Feaver ■• V. Foulshaw ■ ■ V. Gardner. . V. Goodday V. Paul . • V. Wallwyn — ■ V. W'indross Matthias, Goods of PAGE 298,519 .. 1235 .. 3,6 853, 12H .. 119 . . 680 639, ^dd. 639 .. 103 .. 678 1075, 1076 .. 213 380, 437 .. 711 .. 890 .. 271 .. 1207 .. 1276 631, 683 .. 777 .. 668 .. 1273 .. 1192 V. Matthias 60S, 609, 905 Matthie ti. Edwards .. .. 678 Matthison v. Clarke .. 679, 885 Mattingley, Ee .. .. 823 Mattock V. Kinglake . . 69 Maud t). Maud .. 1152,1202 Maude, Ex parte .. .. 439 Maundrell v. Maundrell 350, 351, 761, 771, 783, 791,825, 1056, 1088 Maunsell v. White Maw V. Pearson V. Topham Mawhood v. Millbanke Jlawman v. Tegg . . Mawson v. Fletcher . . 551 887 1029 377 122 962, 963, 980 .. 441 411,412 .. 121 161, 1325 .. 1165 31, 161 , &c. Co. 425 1254 Maxwell's Trusts, Re 24, 760 MaxoudofT, Ex parte Maxted v. Paine Maxwell v. Hogg V. Hyslop V. M'Clure V. Maxwell V. Port. Ten.; - V. Wettenhall May, Goods of f. Bennett V. Hook . . 1). May . . V. Roper.. V. Skey .. V. Taylor V. Wood Maybank v. Brooks Mayhew v. Maxwell .. 1191 .. 17 . . 455 .. 871 .. 336 .. 315 .. 883 ,. 1121 .. 1196 119, 120 Mayhew's case Mayn v. Mayn Maynard v. Gibson 1), Moseley V. Wright Maynard's (Serjt.) case Mayou, Ex parte Maythorne v. Palmer Meacher v. Young Mead v. Orrery (Ld.) Meade King v. Warren Meadows v. Parry D. Tanner .. Measure v. Carleton . . V. Gee Mechelen v, Wallace.. Medley v. Horton Medworth v. Pope Meeds v. Wood Meek v. Kettlewell . . Meggison u. Moore . . Meinertzhagen v. Davis Ivlelan v. Fitzjames .. Melland v. Gray Mellersh v. Keen Melling i). Leak .. Mellish V. Mellish Mence v. Bagster •• V. Mence Mendes v. Guedalla .. V. Mendes Mendham v. Williams Mennard v. Welford . . Menzey u. Walker Menzies v. Lightfoot. . Mercer, Goods of ■!). Hall V. Irving v, Peterson . , PAGE 410,415 . . 453 .. 160 .. 1082 1220, 1296, 1300 1082 724 95 595 904 802 1114 966 1233 204 951 382, 668 1291 1104 281, 654 865 860, 911 70 252 730, 732, 736, 737 521,530 . 298, 1295 . . 453 . 262, 1188 248 298 1135 910 843 690 1172 1145 68 646 430 Merchants, &c. Assoc, Ee Meredith v. Heneage. . !). Vick .. .. 108 V. Wynn . . . , 328 Merest tJ. James .. .. 620 Merewether D. Shaw . . .. 310 Merlin D. Blagrave .. .. 892 Merrick's Trust .. .. 1263 Merriman D. Ward .. .. 739 Merritt, Re 828 Merry ». Abney .. .. 1056 "a Hill .. .. 118,1122 !). Nickalls .. yIdd.'iVl 1). Ryves.. .. 593,1145 Merryweather v. Jones 385, 575, 617 Mertins v. JoUiffe . . . . 1056 Ixx Table of Cases cited. PAGE Mesgrett 1). Mesgrett.. .. 1145 Messenger 1), Clark .. .• 377 Messer u. Boyle .. •. 467 Metcalfe, Re 290, 291, 917 • V. Pulvertoft . . 277 Metham v. Devon (D.of) 1291, 1292 Methwokl K. Walbank .. 81 Metrop. Assn., &c. v. Fetch 143 Mefrop. Board of Works v. Metrop. Rail. Co 134 Metrop., &c. Society v. Brown 77, 238, 644 Metrop. Rail. Co. v.Woodhouse 101 Metrop. Rail. Wareh. Co., Re 433 Metters v. Brown . . . . 679 Metters' Estate, Re .. .. 116 Meure v. Meure . . • . 565 Meux D.Bell .. .. 648, 651 Mews V. Carr 983 1). Mews.. .. 374,376 Meyer t). Simonsen •• .. 114 Meynell u. Massey .. .. 589 tJ. Surtees .. 78,952 Meyrick ». Anderson. . .. 232 «. Coutts .. .. 812 Miall ». Brain .. ..353 Michel's Trusts .. .. 41 Michell!). Michell 22,587,589,1322 Micklethwait v. Micklethwait 926, 1158, 1159, 1280 Middlemore v. Goodale Middleton !). Cater .. V. Clitherow ■ V. Dodswell (Ld.) V. Elliot V. Greenwood V. Losh V. Magnay . . V. Messenger V. Middleton ■ — ■ ■ V. Pryor V. Spicer . . Middleton's case Mid. Bank Co. v. Chambers. 503 48 52 893 92, 93, 96 .. 6, 7 476, 504 .. 1284 37, 844 .. 900 .. 167 . . 236 895 Midland, &c. Co. D. Oswin .. 1222 Midland Rail. Co., Re . . 1225 1). Caldecott 945 J). Taylor . . 413 Mignan v. Parry 554, 556, 557 Migoth's case . . 437, 438 Milbourne w. Ewart .. .. 314 Mildmay's case Mildred v. Austin Miles V. Clark V. Durnford V. Dyer. . V. Langley . 76, 191,414, 1148 . . 663 .. 1117 . . 639 .. 1219 .. 1059 Miles V. Miles I. Presland Miles's Will, Re Milford V. Peile Mill V. Hill .. Millar v. Turner Millard v. Bailey V, Eyre V. Harvey Miller, Ex parte V. Brown V. Cooke V. Harris V. Huddlestone V. Little V. Mackay V. Marriott V. Miller 1195, 127 V. Priddon V. Thurgood V. Travers Millett V. Davy Rowse Millican v. Vanderplank Milligan K. Cooke Milliner's Estate, Re. . Mills t>. Banks V. Borthwick V. Brown r. Drewitt V. Farmer V. Fowkes V. Millis D. Oddy 984 V* Seward , . . . 204 «. Trumper .. 22,23 Milne B. Gilbert .. ,.1310 Milner 0. Colmer .. .. 359 V. Harewood (Ld.) 297, 574, 575 PACE 123.5 .. 472 .. 901 .. 606 . . 696 . . 774 1201, 1310 .. 912 . . 954 . . 446 .. 1191 655, 658 .. 295 17, 1246 .. 1233 .. 720 .. 462 128, 727, 734 .. 911 157, lis .. 1205 .. 672 302, 301. .. 991 .. 1029 Add. 1014 .. 790 .. 543 .. 1236 17, 18 .. 43 .. 5+7 114 Milner's Estate, Re Milnes v. Bush ■ V. Gery K. Slater .. 1014 .. 377 951, 9i0 .. 1322 282, 284 12S0 Milroy v. Lord r. Milroy Milsington (Ld.) v. Mulgrave (E.) .. .. 219 B. Portmore(E.) 221 Jlilton t). Edgeworth.. .. 658 Milward v. Thanet (Ms. of).. 1032 Miner K. Baldwin .. .. 17 w. Gilmour .. 148,150 Mines Roy. Society v. Magnay 98 Minet w. Leman .. 1001,1040 V. Morgan 1063, Add. 1 003 Minor, Ex parte .. 988,992 Table of Cases cited. Ixxi Minslmll v. Oakes Minter v. Wraith Minton v. Kirwood Mirehouse d. Sc;iife Mitchel D. Reynolds Mitchell V. Bridges V. Colls 1). Neale V. Seward ■ V. Smith V. Steward Mitchell's Claim PACE 502, 503 755 760, 773,1061- . . 34,37,1320 81 1311 601 1072 505 128 1086 Add. 546 Mitchelmore v. JIudge 333, 334 Mitford V. Mitford 323, 327, 332. 334, 568 V. Reynolds 42, 44, 48, 53, 570 Mocatta v. Lindo • V. Murgatroyd Mockett, Re . . Moffat V. Burnie Moffatt V. Bates Mogg V. Hodges V, Mogg Moggridge v. Thackwell Mohun V. Mohun ., Mold ti. Wheatcroft .< Mole 7;. Mansfield V. Smith . . MoUwo 1-. Court of Wards Add. 710 Molony K. Kennedy .. .. 377 i). Kernan .. .. 1090 Moltoni;. Camroux 66, 638,707, 938 1135 1059 2J7 1283 160 49 1287 170, 1240 .. 1201 132,673 .. 460 .. 63 753, 43, Molyneux v. Rowe Monck V. Monck . , Money v. Money Moneypenny v. Bristow V. Bering Monkhouse v. Holme Monkton v. Att.-Gen. Mon. Can, Co. v. Harford Monro K. Taylor .. Monsell v. Armstrong Montacute v. Maxwell Montagu v. Kater V. Nucella . . Montague v. Benedict V. Montague Montefiore v. Behrens V. Browne V. Enthoven ■ V. Guedalla V. Montefiore Monteith v. Nicholson Montfordr.Cadogan(Ld.) 219, 220, 876 1184 847, 849 .. 304 .. 1191 .. 927 .. 1103 .. 1014 .. 141 .. 1018 Add. 798 552, 553 .. 803 .. 1220 .. 66 584, 848 .. 578 65, 805, 1056, 1059 .. 1150 .. 848 309 1.303 PAGE Montgomeriei). Bath(Marq. of) 682 W.Wood.. .. 1121 Montgomery v. Montgomery 204, 1297 Monypenny v. Dering 753, 754, 755 ti. Monypenny .. 581 Moodie u. Bannister 242, 521', 543, 546 ». Reid .. ..816 Moody ». Walters .. ,. 207 Moor D. Roberts .. .. 983 Moore, Re . . . . . . 456 W.Barber .. ..1168 ■!!. Blake .. .. 95 V. Cleghorn . . . . 864 «. Crofton .. .. 67 ' V. Culverhouse . . 694 B. Darton .. 129,284 V. Denn .. .. 1273 r. Edwards .. .. 951 V. Frowd . . 886, 888 I'. Godfrey .. .. 1251 ■ V. Greg . . . . 635 II. Hart .. ..551 i'. Marrable .. .. 1032 u Moore 381, 1227, 1242, 1325 V. Morris , . . . 383 V. Parker . . . . 203 ■!). Rawson .. .. 145 ■W.Webb .. 141,150 ■!). Webster •. . .. 317 «'. Whitehouse .. 1174 u. Woolsey . . . . 646 Moorehouse t). Lord .. .. 1165 Moores v. Choat . . . . 635 Moravia Soc, Re .. ., 910 More «. More .. .. 303 More's Trust 1241 Morecock v. Dickens . . 695 Morehouse !). Scaiie . . .. 1236 Moreton ('. Lees .. ., 830 Morewoodv. S.York. Rail.'Co. 274 V. Wilkes .. ..168 Morgan, Goods of .. ..1168 , Re 1171 I/. Abergavenny . . 237 V. Griffith . . Add. 75 I. Hoi ford .. ..996 u. Malleson .. .. 284 V. Rliddlemiss '.. 1270 V Milman 815, 951, 956 t. Morgan 5,7,113,198, 317, 52f> ' 1). Pike .. .. 1086 ■ — ■ — B.Rhodes .. 78,477 ■ I). Rutson .. .. 769 ■ V. Surman . . 826, 827 Ixxii Table of Cases cited. PAOE Moriarty ». Martin .. .. 163 Morice u. Durham (Bp.) ,, 43 Morison v. Morisoti . . . . 886 Morland D. Cook .. 135,3057 V. Isaac . . . . 647 Morley, Ee 1259 e. Bird 453,639,1198, 1233 D. Bridges .. .. 698 ■ ■ V. Clavering .. 956 ». Cook .. 979,998 ». Morley .. 624,681 !). Rennoldson .. 1140 D. Saunders .. .. 209 Mornington ti. Keane .. 608 Morrell ■«. Fisher .. .. 1212 u. Wooten .. .. 636 Morres IJ. Hodges .. .. 116 Morrett v. Paske . . . . 669 Morrice v. Bank of England 244 0. Langham . . , . 928 Morris J). Ashbee .. .. 123 w. Cannan .. .. 618 «. Clarkson .. .. 572 «. Coleman .. .. 94 ■!!. Edgington . . 133,1084 ■W.Glynn .. .. 50 D.Hodges .. .. 224 ^■. Howes .. 201,812 D. Islip .. 665,673 «). Kearsley.. .. 997 «!. Livie- .. .. 245 ■!). Lloyd .. .. 1265 ?). Manesty .. ..473 ■ V. Morris 810, 1159, 1160, 1304 V. Rhydydefed Colliery Co 786 «). Wright .. .. 123 Morrison i;. Chadwick .. 510 J). Hoppe .. .. 1223 Morritii. Paske .. .. 691 Morrittu; Douglas 1178, Add.l\1% Morrow «. Bush .. ..1321 Morse ■!). Faulkener .. .. 1084 K.Martin .. ..775 ti. Merest .. .. 1018 K. Royal .. ..532 Morse's Settlement, Re . . 749 Mortimer b. Bell . . . . 966 '— V. Capper . . . . 993 . u. Hartley.. .. 1221 u. Picton .. .. S98 . ^. Watts .. .. 219 ■ K West .. .. 1291 Mortlock i;. BuUer 87, 88, 795, 801, 815, 936,963, 1028, 1031, 1038 Mortlock's Trusts, Re Morton v. Woods Moscrop V. Sandeman Moseley I?. Massey .. Moseiey's Trusts, Re Mosely v. Virgin Mosley v. Baker V. Ward Moss V. Barton V. Cooper ■ u. Dunlop y. Gallimore D.Hall .. V. Harter Mostyn 1'. Mostyn 1138 Mott V. Buxton Mottram, Re ,. Motz V. Moreau Mouflet V. Cole Moule D. Garnett Moulson V. Moulson . . Moulton V. Hutchinson Mountain v. Bennett . . Mountford v. Scott .. Mounsey v. Blamire . . Mountstephen v. Brooke Mower ». Orr . . Mower's Trusts Mowatt i>. Londesbotough Moxey v. Bigwood Moxhay v. Inderwick Moyle V. Moyle Moyse v. Gyles Mucklow V. Fuller . . Muggeridge v, Stanton Muggeridge's Settlement ■ Trusts, Re Muggleton v, Barnett Muir V. Jolly .. Mules V. Jennings MuUings V. Trinder .. Mullins V. Hussey I. Smith Munch V. Cockerell. . Munday D. Joliffe ■ .. Mundel, Re .. Mundel's Trust, Re .. Mundy v. Howe (E.) V. Jolliffe I). Mundy PAGB 760, 773 660 990 1219 760 93 665 162 476 54 1311 660, 671 67 821 1208, 1210 879 1103 739 508 850 820 1169 1061 1279 546 104 689 394 91 1072 251, 877 925, 948 876,893 376 . 257 . 1151 84, 188 1075 104 1039 62, 1043 . 1233 251, 909 95t 918 913 595 954 356 Munns o. Isle of Wight R.Co. 1076 Wunro ;■. Taylor 970, 993, 1044 Munroe D. Douglas .. .. 1165 Murchie «. Black .. .. 152 Murgatroyd v. Robinson 139, 150 Murkin t). Phillipson 1111,1118 Murless v. Franklin . . 872, 875 Table of Cases cited. Ixxiii Murphy v. O'Shea ' 1). Sterne Murray, Re . . . ». Barlee ■ V. Bogue V. Elibank (Ld.) PAGE .. 911 .. 537 .. 304^ .. 379 123, 125 360,369, 370 .. 451 .. 1114 .. 90 621, 735 1). Hall V. Jones 11. Mann V. Pinkett . Murrell ». Goodyear 935, 963, 1003, 1028 Murthwaite v. Jenkinson . . 880 Muschamp «. Blent .. .. 1148 Musgrave & Hart's case 412, 413 Muskerry v. Chinnery 784, 1057 Mutlow «. Mutlow .. 31,32 Myers v. Perigal . . . . 50 V. United Guarantee Co 83 V. Watson . . . . 964 Myerscough, Ex parte . . 295 Myler ti. Fitzpatrick.. .. 887 N. Nairn v. Majoribanks Nandick v. Wilkes Nanfan v. Leigh Nanney v. Williams Nannockv. Hprton Nanny «. Edwards ■ -V. Martin Nanson v. Barnes Nantes v. Corrock Napier v. Napier Narin v. Prowse Narraway v. Beattie Nash V. Armstrong V. Coates V. Hodson y, Nash . . V. Palmer i. Worcester, & missioners Natal, &c. Co. Inv. Co., Re Natchbolt v. Porter Nation's case.. National Exoh. Co, ». Financial Co., Re Savings' Bank , &c. Soc, Re Naylor v. Arnitt V. Winch W. 208 557 1276 285, 288, 524 820 . 681 . 331 83, 185 . 379 . 819 . 1076 . 745 . 1021 203, 204 547 330 1083 Com- 1037 422 647 510 412 90 408 434 430, 640 484, 485 69,60 Drew Neal u. Mackenzie . . V. Neal . , . . Neal's case Trusts . . Neale v. Cripps V. Davies V, Day . . V, Neale .. Neate v. Marlborough (D. of) TAGE 477 128 582 606 1160 889 273 60 461, 663 .. 1189 . . 779 . . 830 84, 610 415, 417, 436 . . 348 . 255, 1021 1305 436 721 674 1234 66 1267 1325 V. Pickard Neatherway v. Fry Nedby ». Nedby NeedUam v. Smith Needham's case Neesom v. Clarkson Neeves v. Burrage Neighbour v. Thurlow Neill's case Nelson v. Bealby 11. Booth ' D. Carter w. Duncombe . ». Hopkins . , V. Page V. Stocker 66, 310, 576, 892 Nelthorpe v. Holgate . . 948, 963, 968 Nelthrop t). Biscoe .. .. 1252 Nerot t). Burnand .. 723,731 Nesham a. Selby 952, Add. 86 Nethersole v. Sch. for Blind 49, Add. 49 Nettleship, Ex parte.. .. 635 Nettleton v. Stephenson . . 4, 5 Neve «. Flood .. .. 470 V. Pennell 665, 694, 695 Nevill J). Boddam .. ..1130 Nevill's case .. .. 416,436 Neville t). Wilkinson.. .. 309 Nevin «. Drysdale . . . . 847 Nevinson v. Lennard (Ly.) . . 1229 New V. Bonaker . . . . 44 !). Jones.. .. 255,885 Newall V. Smith . . . . 1042 New Brunswick, &c. Co. v. Muggeridge . . 401, 404 New Brunswick Co. v. Cony- heare .. .. .. 426 Newbegin v. Bell . . . . 1322 Newberry, Re 296 Newbold «. Roadknight 994,1236 Newbolt !;. Pryce .. .. 1215 Newburgh v, Newburgh (Css. of) ,, 1205 New Ciy.4ach, &c 423 Newcastle Corp. v. Att.-Gen. 277 (D. of), Re 465, 467, 469 / Ixxiv Table of Cases cited. PAGE Newcomen «. Hassard .. 378 Newell w. Radford .. 77,951 Newhouse D. Smith .. .. 1323 Newill V. Newill . . 453, 867 Newland v. Att.-Gen. . . 42 Newlands «■ Holms .. .. 518 t). Paynter . . 372, 373 Newman I). Barton .. .• 1252 U.Newman.. 1125,1229 I/. Rogers .. .. 1018 V. Selfe . . . . 683 D.Warner .. .. 915 Newport ji. Bryan . . . . 904 New Quebrada Co. v. Carr . . 947 Newry, &c. Co. v. Edmonds. . 431 Newsome v. Flowers . . 45, 889 Newstead v. Searles 561, 599 Newton «. Askew . . • . 277 jj.Marsden 1113, 1140, 1141 V. Metrop. Rail. Co. . 235 V. Newton 687, 688, 1387, 1280 ■ o. Ricketts . . . . 809 Newton's Trusts, Re.. .. 1279 Nicholas D. Chamberlain •• 135 NichoU «. Chambers . . .. 971 O.Jones .. 63,160 'V. NiehoU .. .. 1334 Nicholls D. Corbett . . . . 978 V. Judson . . 210, 853 V. Maynard . . 658 D. Osborn.. 1231,1255 !). Rosewarne .. 473 V. Sheffield . . 748 «. Stretton.. .. 81 Nichols «. Binns .. .. 1168 t). Hawkes .. ..1275 Nicholson v. Bradfield Union 74, 424 •^-^ II. Rose . . . . 505 V. Squire . • . . 303 1). Tutin 672, 894, 895 Nickels v. Hancock . • . . 93 Nickissonti.Cockill .. 55,1246 Nicloson V. Wordsworth . . 877 Nicol's case .. .. .. 426 Niell ». Morley .. .. 66 Nightingale v, Goulburn . . 42 V. Lawson 219, 222 Nind I). Marshall .• .. 1070 Nivers v. Tuck . . . . 87 Nixon, Re 1009 V. Albion Marine In- surance Co. •• 982 V. Brownlow . . . . 403 ^?). Nixon .. .. 338 Noad B. Backhouse . . 675, 893 Noakes «. Kilmorey (Ld.) ., 1043 Noble V. Brett V. Meymott V. Phelps Nock V. Jiewman . > Noel V. Bewley V, Hoy . . 1). Henley (Ld.) V. Henley .. V. Jevon ■ . . . V, Robinson PAGE 247, 1252 .. 877 .. 1168 .. 1068 .. 1084 .. 934 ,. 584 .. 768 351, 883 .. 1252 V. Walsingham (Ld.) 589, 590 Noell J). Wells Norbone's case Norbury v. Kitchin .. V. Norbury . . Norcutt V. Dodd Norfolk (D. of) v. Worthy 236 329 149 900 271 960, 1022 Norman, Re .. .. .. 601 V. Kynaston . V. Mitchell Norris, Ex parte I). Chambres 1184 403, 416 .. 904 71, 169, 170, 860 Add. 54 .. 93 V, Frazer D. Jackson V. Le Neve . . . . 1060 «. Livie.. .. .. 648 !). Norris .. ..888 V. Wilkinson . . . . 632 V. Wright . . . . 639 North B. I. Co. ^. Hallett . . 649 N. E. Rail. Co. „. Elliott . . 152 North !). Gurney . . . . 648 V. Martin . . 202, 205 V. Purdon . . . . 262 V. Wakefield . . • . 77 Northen v. Carnegie ., 207, 869 Northey D. Burbage .. 1115,1283 I). Northey . . . . 357 Northumberland (D Egremont (E. of) Norton, Ex parte V. Bazett V. Cooper V. EUam V. Frecker 11. Mascall V. Nicholls V. Norton V. Turvill V. Turville Norway v. Rowe Notley t). Palmer Nott, Ex parte V. Riccard of) V. Egremont.. (E. of) I/. 159 778 .. 331 .. 1180 .. 672 .. 545 242, 250 .. 94 .. 126 .. 265 .. 381 .. 315 .. 730 .. 106 .. 1088 .. 1019 Table of Cases cited. Ixxv PAGE Nottidge 11. Prince . . . . 288 Nottley V. Palmer . . . . 352 Novosielski v. Wakefield . • 664 Nowell D. Nowell .. 719,735 w. Roake .. ..819 Nugee K. Chapman ., 991,1228 Nugent 11. Vetzera . . . . 295 Nunn K. Fabian .. .. 955 !). Hancock .. 990,1041 ». Willsmore . . . . 270 Nurse ». Seymour (Ld.) .. 1026 Nuttall t). Bracewell . . .. 148 O. O'Brien «. O'Brien .. O'Callaghan ». Cooper O'Ferrall, Ex parte .. —^—— V. O'Ferrall O'Herliliy !?. Hedges O'Loughlin, Goods of O'Rourke v. Percival O'Toole V. Browne . . Oakden v. Pike Oakeley v. Pasheller. Oakes, Ex parte V. Oakes V. Turquand Oakford v. Europ., Sic, Oakley v. Monck Gates II. Jackson Obee V. Bishop Ockenden v. Henly . Oddie V. Brown V. Woodford Offen V, Harman . . Off. Man. Newcastle, V. Hymers . . . Offleyu. Offley Ogden V. Fossick Ogilvie V. Currie V. Foljambe . - Oglander v. Baston . Ogle 1). Knipe t). Vane(E.) .- Oke V. Heath Okeden i). Clifden Okill V. Whitaker Oldaker v. Hunt «. Lavender . , Oldershaw v. King . Oldfield, Re .. • V. Round . . Oldham v. Hughes . , Oliver v, Oliver .. 1159 .. 1146 363, 1250 .. 219 78, 477, 955 .. 1227 .. 1031 .. 1222 978, 979, 998 . . 740 . . 625 .. 1243 88, 398, 406, 426, 438, 441 , Co. .. 738 481, 512 .. 1294 243, 530 980, 981 , 3, 5, 1201 .. 1278 , 806, 1012 &c. Co. . . 240 .. 589 .. 94 . . 405 .. 1000 331, 332 .. 1229 .. 1021 831, 1199 .. 1041 .. 1079 .. 149 . . 725 .. 67 .. 298 959, 961 .. 107 .. 1234 PAGE Olliver, Goods of .. ..1179 D.King .. .. 274 Olneyi). Bates .. ..1200 Omerod «. Hardman., .. 1030 Ommaney, Ex parte . • . • 699 V. Butcher . . 42, 262 «. Stillwell.. .. 1013 Ongley v. Chambers . . 1210, 1225 Onions v. Cohen . . 478, 1038 Onley D. Gardiner .. 135,141 Onslowt).Londesborough(Ld.) 1071 V. Wallis . . 168, 887 Oppenheim v. Henry .. 1119, 1285 Opy V. Thomasius . . . . 784 Orange v. Piokford . . . . 808 Orby V. Mobun . . . . 789 Ord J). Johnstone .. .■ 67 U.Noel .. .. 88,935 ». Ord 1173 «. White 905 Orford (E.) v. Churchill . . 1282 Oriental Steam Co. i;. Briggs 401 Ormt). Smith 1243 Orme, Re .. .. 1093,1098 Ormerod's case . . 402, 439 Ormonde(Marq.)t).Kynnersley 1160 Ornamental, &c. Co. v. Brown 395 Orpen's case .. .. .. 414 Orrt). Chase 716 — V. Kaines 1252 — V. Newton 235 Orrell t). Orrell .. Add. 161 Orrett, Ex parte .. .. 632 Osbaldeston t). Askew .. 1040 Osborn 0. Brown .. ..1143 V. Marlborough ( D. of) 485 V. Morgan 359, 363, 366 V. Osborn . . . . 462 Osborne v. Harvey 972, 1017, 1034 «. Leeds (D. of) .. 1210 . V. Smith . . . . 605 Osbourn v. Rider . . . . 784 Osgood i>. Strode .. 598,561 Osmond «). Fitzroy .. 286,289 Oswell D. Probert .. ..360 Otley and Ilkley Rail. Co., Re 1195 Otter e. Melvill . . . . 603 V. Vaux (Ld.) . . 667, 1084 Otway ». Hudson .. .. 216 Cave V. Otway . . 623 Ouseley v. Anstruther 609, 1269 Overend & Co. v. Gurney . . 426 V. Gibb Add. 426 Overhill, Re 1292 Overton «. Banister .. .. 892 Owen V. Bryant ,. ..1293 V. De Beauvoir 515, 517, 525 /2 Ixxvi Table of Cases cited. Owen «. Homan V, Owen . . — — ». Thomas cWilliams Owens V. Dickenson PAGE 77, 379 .. 225 952, 981 223, 224 32, 379, 380, 764 Owston, Re 1169 Oxenden v. Compton (Ld.) . . 102 w. Falmouth (Ld.).. 1043 1). Oxenden .. 371 Oxford (E.) V. Churchill 779, 1301 V. Prpvand . , . . 86 Oxwick ». Brockett .. .. 1080 . t>. Plumer . . . . 684 Packer v. Packer . . 366 V, Wyndham 323, 328 Packliam i. Gregory ., 1099 Padbury v. Clark 160, 164 Paddon v. Rlchardsor 251, 899 Page, Ex parte .. 939 V. Adam.. . .. 979 .. 479 11, Cox . . .. 731 V. Hayward . Add. 1110 . . 569 V. Leapingwell . 1237, 1246 V. Page , . . .. 1198 . 702, 1312 V. Way . , . . 578, 1150 Paget V. Foley .. 541 V. Gee . . .. 22 12,852 18, 1233 V. Priest . . . . 232 Paglar v. Tongue .. 1168 Pahlen's case . . .. 416 Paicet). Canterbury (Archbp.) 760, 1218, 1273 Pain ';. Benson .. 1131 V. Coombs 476, 477, 954 ij. Hutchinson .. 412 .. 1109 V. Meller 976, 992 V. Ryder . . 462 D. Wagner . . 454 Paine's case .. .. 318 Painter v. Newby 975,980 Palairet v. Carew 891,913 Palin V. Hills . . .. 1312 Palk V. Clinton ..800 V. Rhod£s . . 664 1;, Shinner ,. 140 PAGE Pallister v. Gravesend (Corp.) 936 Palmer, Re 713 V. Carlisle (E.) . . 682 V. Craufurd • • . . 14 1). Fletcher ,. .. 133 1). Flower .. ..1233 V. Garrard . . . . 265 V. Graves . . . . 30 V. Hendrie 672, 676, 681 ». Holford .. ..762 V. Neave . . . . 572 V. Newell 12, 850, 857 V. Siramonds 864, 865, 868, 1201 V. Temple 980, 981, 983 V. Trevor . . . . 1248 S.Wheeler .. ..842 V. Young . . . . 224 Palmerston (Ld.) v. Turner . . 977 Palsgrave v. Atkinson . . 839 Panama, &c. Co 423 Pannell ti. Hurley . . 639, 887 V. Mill . . . . 492 Papillon V. Voice 203, 557, 564 Paramore v. Greenslade . . 993 Pardo V. Bingham . . 33, 544 Pares D. Pares.. .. .. 842 Paris «. Miller .. ..1274 I.. Paris 1230 Ch. Co. V. Crys. Pal. Co. 952 Parish v. Sleeman . . 478, 496 Park, Ex parte .. ..1185 , Re 295 Parke, Ex parte .. .. 413 J). Hodgson .. .. 1118 Parker, Goods of .. 1180,1200 D. Birks . . . . 1303 V. Bloxham . . . . 742 V. Brooke 224, 372, 377 D. Butcher . . . . 665 V. Carter .. .. 317 V.Clarke 634,668,1146, 1297 D. Dee .. .. 244 V. Fearnley . . . . 30 c. Frith .. .. 1018 B. Hills .. ..723 f. Hodgson .. .. 1101 u. Housefield.. .. 633 w. Kelt .. ..232 r-.t>. Marchant .. 1194,1228, 1230 «. Mitchell .. .. 142 -». Nickson .. 1184,1270, 1279 t). Ringham . . . . 244 t). Smith . . 953, 955 D. Sowerby .. 353,1122 Table of Cases cited. Ixxvii Parker v. Staniland 1). Tootal V. Turner V. Watkins V. Webb V. Whyte Parker's Trust Parkes, Ex parte V. Bolt V. White Parkin t'. Thorold Parkinson v. Francis V. Hanbury Parkinson's Trusts . , Parnell v. Kingston . . V. Lyon Parnham's Trusts, Re Parr, Ex parte .. V. Lovegrove V. Swindels Parrott v. Palmer V. Sweetland . Parry, Re ' V. Brown • • V. Huddleston II. Wright Parsons v. Gulliford . . V. Hayward . . o. Parsons J). Peters Parson's case.. Parteriohe v. Powlet . . Partington, Re V. Reynolds Partridge v. Foster . . V. Partridge V. Smith Partyn v. Roberts Paske ■!). Haselfoot . . Passingham v. Pitty ■ ■ Patch V. Shore . • K.Ward 643 PAGE .. 950 .. 1261 .. 620 .. 673 .. 503 499, 505 .. 914 .. 1075 .. C12 377,561, 940 .. 1019 .. 1009 672, 674 .. 1309 284, 285 .. 1144 .. 1151 . . 744 969, 981, 997 .. 1302 , 212, 1157 .. 1076 .. 917 .. 787 . . -246 .. 667 .. 1261 .. 739 9, 596 .. 1147 .. 413 .. 455 .. 1284 .. 260 .. 465 1234, 1235 .. 61 .. 557 774, 833 .. 181 281, 824 V. Wild . . Patent File Co. Paterson v. Long • r. Mills ■ V. Murphy.. • V. Paterson Paton V. Rogers V. Sheppard Patrick v. Beaufort (D.) Patterson, Re.. Patton V. Randall . . Paul V, Children V. Compton . , 11. Hewetson V. Paul . . 674 . . 448 26, 957, 981, 1058 184 284 703 1031 21 482 128 798 1292 864 806 618 Paull «. Simpson Pawles' case . . Pawlett, Ex parte Pawley 'y. Colyer Pawson v. Pawson Paxton V. Newton Paylor v. Pegg Payne, Re ■ «. Collier v. Haine ■ V. Hornby V. Little V. Mortimer Payne's case . . Peach ■!'. Lambarde Peacock, Ex parte V. Burt V. Eastland V. Monk , V. Peacock . — ^— — V. Penson . V. Spooner . V. Stockford Peacock's Estate, Re Peacocke r. Paris Peake v. Penlington Pearce v. Brooks V. Crutchley f. Gardner V. Graham V. Green V. Lindsay V. Loman r /y. Morris Pearmain v. Twiss Pearman v. Pearman Pears v. Laing Pearsall v. Simpson Pearse, Goods of V. Baron V. Pearse PAGE 233 406 901 664 13 93 1152 1136,1149 616 497 253 246, 377 36, 281, 571 413, 415 .. 928 .. 744 692, 693, 1088 .. 198 582, 761 .. 730 89, 964 .. 203 .. 1289 Add. 848 .. 1290 .. 797 .. 82 302, 303 810, 935 .. 604 .. 890 .. 730 1094, 1118 .. 664 34, 1164 .. 1122 .. 544 .. 1104 1172, 1177 .. 783 .. 1063 Pearson, Ex parte 445, Add. 604 V. Amicable Co. 282, 283 V. Bank of England 860 i>. Benson V. Cranswick V. Dolman V. Knapp V. Lane 11. Pearson : — v. Spencer Pearson's case Pearsons, Re . . Pease v. Hewitt V. Jackson Peat V. Chapman V. Powell Pechell V. Hilderley 941 15 .. 1118 .. 477 100, 110 1251, 1254 132, 134, 136 Add. 446 .. 1178 . • 722 640, 686, 693 467 1272 1164 Ixxviii Table of Cases cited. FAOE Pedder, Ee . . 100, 106, 108 V. Mosley . . > . 282 Pedder's Settlement Trusts . . 604 Peddie v. Brown . . • • 66 Pedleyi). Dodds .. ..1213 Peek V, Gurney . . Add. 405 D.Matthews .. .. 1086 Peek's case .. .. .. 401 Peel, Goods of .. .. 1208 V. Catlow . . . . 1300 Peel's case 398 Peele, Ex parte .. .. 716 Peers v, Ceeley . . . ■ 698 V. Lambert . . . . 1003 1). Needham . . . . 460 !). Sneyd 989 Pegg V. Wisden . • . . 1036 Pegler v. White . . 86, 969 Peiton «. Banks .. .. 1274 Pelham !). Anderson . . .. 41 ■U.Newton .. .. 1236 Pell V. Northampt. and Ban. Rail. Co 1034,1076 Pell's case 438 Trusts 1262 Pellatt's case . . . . 399, 401 Pelley D. Bascombe .. 519,525 Pells V. Brown . . . . 1335 Pelly V. Wathen . . . . 673 Pember !). Mathers .. 509,1071 Pemberton i>. Barnes, 461, Add. 461 V. Chapman . . 233 «. M'GiU .. 380,384 w. Pemberton .. 1188 Pembrooke I). Friend. . .. 1325 Pen. & Or. Co. D. Shand .. 71 Pendleton v, Routh . . . . 535 Penfold ». Moulds . . . . 366 Penleaze, Ex parte .. .. 596 Penn v. Baltimore (Ld.) 67, 71 Penne v. Peacock . . . . 769 Pennel v. Reynolds Pennell v. Deffell Penney, Ex parte Penniall v. Harborne Pennington v. Cardale Pennock v. Pennock Penny v. Allen V. Clarke V. Deffell V. Watts . . Penrhyn (Ld.) v. Hughes Penrose v. Martyr Penson v. Moore Pentelow's case Pentreguinea, &o. Co., Re ..896 . . 905 410, 412, Add. 410, 412, 496, 503 .. 506 761, 762, Add. 762 526, 527 . . 454 .. 739 .. 1060 .. 210 420, 424 .. 646 399, 400 .. 74 PAGE Peover v. Hassel . . . . 773 Pepper ». Dixon ,. .. 353 Peppercorn v. Wayman 798, 878 Peppin D. Bickford .. .,1194 Perceval I). Perceval . . .. 1330 Percival I). Percival .. .. 1265 V. Phipps . . . . 122 Percy D. Percy .. .. 16 Perens v. Johnson . . . . 938 Perfect v. Curzou (Ld.) . . 1137 Perkins v. Baynton . • . . 456 n. Bradley .. ..170 U.Cooke .. .. 16 V. Ede .. .. 1003 V. Fladgate . . Add. 1201 • D. Micklethwaite .. 1192 D. Sewell ,. .. 194 V. Thornton . . . . 562 Perkes, Ex parte . . . . 939 Perrett's case . . . . Add. 401 Perrey v. Newenham . . 480 Perrin V. Blake .. .. 201 D. Lyon.. .. .. 1147 Perring v. Brook . . . . 476 Perrotu. Perrot .. ..1156 Perry, Ex parte . . . . 632 V. Barker . . . . 682 V. Davis . . . . . . 506 7). HoU .. .. 1060, 1061 D.Jenkins .. .. 236 V. Medowcroft 627 V. Phelips . . . . 242 V. Smith 1062 V. Walker . . . . 673 «. Whitehead .. 816,847 D.Woods .. .. 456 Persse v. Persse . . 59, 62 Peruvian Railways, Re . . 420 Peryi). White 1318 Peter v. Nicolls . . . . 276 Peterborough(Bp.)t).Mortlock 1234 Peterborough's (Ld.) case .. 771 Peters v. Grote Peterson v. Elwes V. Peterson Peto V. Hammond .. 371 972 893, 1252 687, 969, 1000 61 595 198 293 394 V. Peto .. Petre (Ld.), Ex parte V. Duncombe . * V. Espinasse V. E. C. R. Co. . . V. Petre 528, 529, 530, 531, 581, 1246 Pettinger v. Ambler 19, 804, 808, 824, 1183, 1184 Pelts, Re 1216 Petty D. Willson .. 1229,1230 Table of Cases cited. Ixxix PAGE Pettyt t). Janeson ,, .. 726 Pewtner, Re 1173 Peyton I). Bladwell .. ..571 V. Bury 1108, 1120, 1148 V. Mayor of London. . 152 Peyton's Settlement, Ro 900, 935 Pfleger, Re 116 Phelps, Re . . V. Prothero Phene, Re V. Gillan ti. Popplewell Phene's Trust Pheysey v. Vicary Philanthropic Soc. v, Philbrick, Re.. Philips, Re V, Brydges • V. Caldcleugh ■ — V. Paget V, Philips Phillips, Re V. Atkinson V. Barker V. Barlow V. Beal V. Brydon .. 1174 85, 98 1133, 1285 .. 886 .. 510 .. 457 133, 134 Kemp 54 .. 828 .. 1311 .. 859 .. 959 .. 1248 546, 620 102, 116, 699 728 1207 1155 242, 1224, 1337 761 ■I). Buckingham (D. of) 78, 948 ■ V. Caldcleuch 969,975, 1000 , Chamberlaine .. 14 «. Clagett .. .. 716 V. Edwards . . 796, 954 V. Everard . . . ■ 254 D. Gutteridge. . .. 668 ■ 1). Homfray . . 935, 947 ^. James ,. .. 558 V.Jones .. .. 511 o. Mullings . . Add. 292 B. Parry .. .. 33 V. Phillips 110, 250, 350, 724, 740, 848, 1088, 1089, 1090, 1197, 1262 D. Sarjent .. .. 116 V. Silvester . . Add. 1034 1). Smith .. ..209 Phillipo V. Munnings 529, 530, 877 Phillipson V. Gatty 251, 900, 902 D. Gibbon .. .. 1003 C.Kerry .. ..292 Philpott V. St. George's Hosp. 53 Philps' Will, Re Phipps V. Ackers V. Child V. Ennismore Phipson V. Turner Phoenix, &c. Co. 1280 .. 1111 69, 968, 1000, 1030 .. 1148 .. 775 428, 429 Picard v. Mitchell . . Pickard u, Anderson . . Add. Pickering, Ex parte . . ' . . V. Dowson . > —— V. Ilfracombe, &c., Co «. Pickering . . V. Stamford . • V. Vowles Pickersgill v. Grey Pickett V. Packham Pickstock V. Lyster Pickup V. Atkinson Pickwell V. Spencer Pidgeley v. Rawlin Pierce v. Scott Piercy v. Fynney Piercy, Goods of Pierpoint v. Cheney (Ld.) Pierse v. Waring . , Pierson v. Benson PAGE 16 901 437 955 — — ^— V. Garnet Piescliel i;. Paris Piggott ». Bagley V, Penrice V. Stratton V. Waller Pigot V. Cubley ». Gascoin Pigott II. Pigott Pike 1). Nicholas Pilcher v. Randall V. Rawlins Pile I). Salter . . Pilling V. Pilling Pimm V. Insall Pinbury ». Elkin Pince V. Beattie Pinchin v. London and Black- wall Ry. Co. 942, 945 ' V. Simms 421 .. 115 .. 250 219,223 .. 201 .. 225 .. 272 .. 115 .. 1273 .. 1154 .. 1067 .. 721 1169,1180 594 287 .. 939 .. 778 .. 44 .. 731 .. 1223 ', 148, 505, 508 .. 1191 .. 680 .. 233 333, 348 .. 123 .. 1199 685, 1087, 1088 .. 1104 721, 723 574, 987 .. 1104 886, 900 Pinder v. Pinder Pinero v. Judson Pinhorn v. Souster Pinnel v. Hallett Pinney v. Marriott V. Pinney Pinnington v. Galland Piper t). Piper Pipon D. Pipon Pitcairn v. Ogbourne Pitcairne v. Brase Pitt V. Hunt . . V. Jackson V. Pelham V. Pitt 854 .. 601 475 482, 660 .. 609 .. 1213 .. 1008 .. 132 .. 1325 .. 263 309, 1032 .. 1215 .. 323 .. 838 .. 861 324, 348, 623, 624, 1165 Ixxx Table of Cases cited. PAGE Planet Build. Soc, Re Add. iSi Plant li. James ., .. 136 V. Taylor . . 225, 1014 Plasterers' Co. u. Parish Clerks' Co 142, 143 Piatt V. Piatt 847 v.- Sleap 620 J).- Walter .. ..121 Playfair v. Cooper . . . . 541 Playford v. Playford . . . . 664 Playtersti. Abbott .. 217,219 Plenty i). West .. ..1184 Plowden 1). Hyde .. 161,640, 996 Plumer v. Merchant . . . . 245 Plummer D. Whiteley .. 23 Plunket V. Dease . . . . 477 Plunkett, Re 1216 ■ V. Lewis PlymoHth (Ly.) v. Archer Poad V. Watson Pochin V. Duncombe.. Pocklington v, Bayne Pocock 1). Reddington Pogson V. Thomas . . Poland «. Glyn .. .. 896 Polden K. Bastard .. 135,1212 Pole W.Pole 874 w. Somers(Ld.).. .. 857 Pollard, Re 1 306 . . 855 .. 1159 .. 881 .. 1001 .. 826 888, 900 .. 1223 V. Clayton V. Doyle V. Greenvil Pollexfen v. Moore Pollock V. Croft ■ V. Stacey Polyblank v. Hawkins Pomfret v. Ricroft (E.) V. Windsor (Ld. ) 592, 1057 94, 1033 .. 885 .. 784 .. 100 .. 1145 .. 480 .. 316 132, 137 Ponsford v. Hartley Pontifex's case Pontorti). Dunn Poole !). Adams ' V. Bentley V. Bott . . v.- Coates V. Hill . . ». Odiing V, Poole .. «. Rudd . . V. Shergold Pooley V. Ray Poor V. Mial , , Pope V. Biggs,, V. Curl . . V. Garland .. 261 .. 408 .. 731 992, 1081 .. 475 .. 1095 .. 1193 1021,1023 160, 873 .. 204 . . 984 963, 985, 1034 .. 250 61, 1107,1108 .. 671 .. 122 .. 964 PAOE Pope a. Roots.. .. ..993 ■;;. Whitcombe .. 781,1314 Popham «. Aylesbury (Ly.) .. 1231 V. Bampfield . . 562, 1 121 Popplewell w. Hodkinson 149,151, 152 Pordage ». Cole Porker v. Faswell Porter, Goods of V. Tournay Porter's Trusts, Re .. 69 . . 480 .. 1172 1230, 1231 1117, 1197, 1198, 1279 Portington's (Mary) case 200,1330 Portland(D.)«. Hill. V. Topham Portman v. Mill Postlethwaite v. BIythe ■ V. Mounsey Pott t!. Eyton.. V. Todhunter Potter, Re Potter's Trusts, Re . . Potters ti. Sanders .. Potts I). Atherton V. Britton V, Leighton , . V. Norton . . V. Potts . . V. Smith. . V. Surr . . . . Poulet V. Poulet Poulett (E.) t). Hood t). Hood V. Poulett Poulson 1). Wellington Pounsett V. Fuller . . Powdrill V. Jones Powel V, Cleaver Powell, Re V. Att.-Gen. . . V. Davies V. Double V. Edmunds 11. Evans V. Hankey ' ti. Hellicar V. Howell V. Matthews • V. Martyrs V. Merrett ■ V. Morgan ' ■ V. Oakley t). Powell V. Robins 1). Smith V. Trotter Power V. Hayne 167, 181 .. 842 963, 964 643, 697 246, 1248 710, 711 279 577 1261 952 1112 768 255 300 228 133, 1246 62, 287 .. 1101 .. 1070 .. 1229 .. 597 .. 808 .. 1024 355, 607 300, 847 .. 1228 .. 41 . 1279, 1280 .. 1202 .. 961 .. 983 .. 251 .. 377 127, 129 .. 1317 .. 700 .. 976 167, 261, 262 .. 623 .. 577 . 607, 1187 .. 30 Add. 91 .. 673 14, 15 Table oj Cases cited. Ixxxi Powis t'. Bui'dett Powlett (Ld.) I). Herbert Powley V. Walker Powys V. Blagrove V. Mansfield PAOE 1137 Poyntz V. Fortune Prance v. Sympson Pratt I). Barker V. Bull , . I. Jenner 17. Mathew «. Sladden Prebble v. Boghurst Precentor of St ~ parte Preece v. Corrie •~—^^ V. Seale Frees v. Coke Prescott, Ex parte Press V. Parker Preston, Ex parte V. Liverpool, way V. Melville V. Merceau V. Preston Prestwick v. Poley Prestwidge o. Groorabridge Prevost V. Clarke Price, Ex parte K. Anderson K. Asheton I). Berrington V. Blackraore V. Blakemore 1). Bury !). Copner V. Dyer V. Green K.Hall.. V. Hathway t). Ley .. V. Macaulay . . 498 . 1156, 1160 817, 848, 857, 1191 .. 477 .. 727 67, 289 . . 466 .. 618 .. 601 261,262 68, 604 Paul's, Ex 944 480 1140 679, 681, 1080, 1081 .. 744 .. 1212 405, 425 &c.Rail- 394 263 76 30 63 1202 865 632 1230 218, 477, 788 .. 1081 905, 1075 .. 609 .. 634 .. 531 77, 476, 494 68 1329, 1334 .. 55 958, 1038 90, 958, 973, 979 V. M'Beth i;. North D. Page 0. Parker V, Penzance (C V. Powell V. Salusbury V. Strange V. Worwood Priddy v. Rose Pride u.Bubb V. Budd orp.) . 698 30, 975 ,. 1207 ,. 811 . 93 . 1186 .. 954 .. 1312 .. 505 611,647 378, Add. 378 .. 1168 PAGE Pride t). Fooks .. 1282,1307 Prideauxu. Lonsdale.. 292,314 Pridie t). Field .. .. 13 Priestley v. Holgate .. 1108, 1109 Prince v. Heyling ■ . . . 457 ». Hine .. ..597 1). Stebbing .. ..581 Prince Albert K. Strange .. 121 Pringle !). Pringle .. .. 614 Prior 11. Horniblow 538, 539 Pritchard v. Ames . . . . 374 ■ f>. Arbouin.. 52,53 ». Wilson .. ..678 Probert v. Clifford . . . . 357 D.Morgan .. .. 818 Proby V, Landor . . . . 828 Proctor, Re 489 V. Bath and Wells (Bp. of) 755 U.Hodgson .. .. 133 . Robinson V. Sargent 288, 291, 385 81 Professional, &c. Benef. Build. Soc, Re Prole V. Soady Propert, Re . . V. Parker Prosser v. Edmunds V. Rice Proud V. Bates V. Proud ■ V. Turner Proudley v. Fielder Prowett V. Prowett Prowse ti. Abingdon 1'. Spurgin Add. 434 309, 332, 391 .. 703 •• 478 82 . 693, 1056 .. 492 528, 538 . . 266 .. 377 16, 17 .. 1094 . 1252, 1253 631, 642 Pryce v. Bury Pryorii. Hill 361 1-. Pryor 777, 840, 841, 1179 Pryse v. Cam. Rail. Co. . . 1034 Puddephatt, Goods of .. 1178 Pugh, Ex parte .. .. 366 , Re 381 V. Leeds (D. of) .. 784 and Sharman's Case Add. 400 Pullen I). Ready .. .. 61 Pullin V. PuUin .. .. 1212 Pulling D. L. C. & D. Bail. Co. 945 u. Tucker 896 .. 1118 89,311 Pulteney v. Darlington (Ld.) 106, 108 Pulsford V. Hunter V. Richards Pulvertoft V. Pulvertoft Furcell ». M'Namara Purdew v. Jackson . • 561, 562, 599 .. 532 334, 335 Ixxxii Table of Cases cited. FACE Purefoy v. Purefoy . • i • 894 !). Rogers .. .• 1334 Pursell V. Elder . . . ■ 5 Purser t). Darby •• .. 1046 Pusey <;. Desbouvrie .. •• 164 D. Pusey . . . . 237 Putnam ». Bates .. •• 539 Pybus w. Cottell .. ..1173 V. Mitford . . . . 203 D.Smith .. 381,382 Pye, Ex parte 280, 846, 847 D.Bradbury ,. ..1147 V. Daubuz .. ..1084 «. Mumford .. .. 140 Pyer «. Carter .. 134,135 Pyke o. Northwood .. .. 1034 Pym V. Blackburn . . . . 498 V. Bowreman . . . . 663 V. Lockyer . . 847, 848 Pyncent v. Pyncent . . . . 209 PyotD. Pyot 1314 Pyrke D. Waddingham .. 1039 Q. Quarrell v. Beckford 659, 673, 674 Queen's Coll. Camb... .. 45 V. Sutton Queensberry (D. of) v. Sheb beare . . . . Quick V. Quick Quinn v, Butler 1235 121 1187 1185 Rabbeth D. Squire .. 1225,1317 Raby v. Ridehalgl 902 Race D.Ward.. .. .. 131 Rackham V. De la Mare . . 1198 D. Siddall 877, 881, 903 Badcliffe, Re 669 D. Anderson . . 82 Radford D. Radford .. .. 1217 D.Willis 1221 Add. Radnor (Ld.) d. Shafto . . 942 D. Vandebendy .. 351 Raffenel, Re 1165 535, 664 .. 35 .. 597 .. 1172 .. 983 .. 298 223, 673 Raffety d. King Raikes v. Boulton . D. Ward Raine, Re Rainy D. Vernon Rainsford v. Freeman Rakestraw d. Brewer ■ Rammell d. Gallow . . Ramsay, Re . . . . D. Shelmerdine V. Thorngate Ramsbotham d. Senior Ramsbottom d. Gosden — ^ D. Wallis Ramsden d. Dyson V. Hirst D. Hylton V. Langley D. Smith Ramsgate, &c. Co. smid V. Montefiore PAGE 1136 1051 1269 9 302 75 664 511 975, 1029 279, 592 .. 698 602, 603 Gold- 399, 400 399, 400 Ranee's case 432, 444, 448 Rancliffe v. Parkyns . . . . 1090 Randal D. Payne .. 1110,1147 Randall v. Errington . . 532 D. Hall .. ..964 V. Morgan . . 551, 553 V. Payne .. .. 1121 V. Randall , . . . 724 i;. Russell .. 224,1337 v. Stevens 483, 521, 523 D.Willis .. ..610 Randfield v. Randfield 213, 1117, 1170 Randle v. Gould . . . . 388 Randoll w. Doe .. ..1122 Ranelagh v. Melton . . 941 Rankin D. Barnes .. .. 816 V. Huskisson . . 95 V. Lay . . , . 477 D. Weguelin .. .. 128 Ranking d. Barnes . . . . 841 Ranking's Trusts .. 453,1310 Rann d. Hughes .. 65, 67 Ransome D. Burgess .. .. 595 Rapp D. Latham .. .. 717 Rashdall d. Ford 423, 424, Add. 427 ■.. 267 .. 685 .. 1255 594, 597 .. 538 .. 848 607, 608 RatclifTs case RatclifFe d. Barnard . . Raven v. While Ravenhill d, Dansey.. Ravenscroft v. Frisby . . V. Jones . . Ravenshaw D. HoUier Eawbone, Re .. .. .. 650 Rawe V. Chichester . . . . 223 Rawlings D. Jennings .. 1226 Rawlins d. Burgis . . . . 996 D. Powel .. .. 854 D.Rawlins .. .. 1255 D. Wickham . . 89, 733 RawlinsoHD. Montague (Dss.) 206 D. Wass .. .. 1280 Raworth v. Parker . . , . 895 Table of Cases cited. Ixxxlii Rawson, Ex parte 1). Eicke Rawslron v. Taylor Ray, Ex parte 1). Pungf . . Raymond's (Ld.) case Rayne v. Baker Read, Ex parte t). Backhouse V. Shaw . . 0. Snell . . V. Stedham Reade v. Bently ■ — V. Conijuest V. Lacy V. Litchfield V. Reade Reay v. Rawlinson Reddel v. Dobree Redding, Re . . I). Wilkes V. Wilks Rede u. Oakes Redington v. Eedingti Redman •;. Redman Redmayne v. Forster Reech K. Kennegal •. •• 241 Reed D. Braithwaite . . .. 1220 1;. Devaynes .. .. 1249 U.Don Pedro .. .. 1035 ReesD. Keith.. .. 330,334 Reese River Co. o. Atwell 271, 273, 274 V. Smith 90, 438 PAOE . . 745 . . 476 .. 150 374, 375 350, 830 .. 302 1056, 1077 .. 412 .. 1185 .. 900 358,564 .. 261 123,709 118,123 .. 123 .. 591 .. 834 1275, 1309 .. 129 .. 1177 .. 552 . . 954 935, 1038 on 67,200,874 572 683 Reeve v. Att-Gen. V. Hicks . . t). Long . . V. Reeve . . 1). Whitmore Reeve's case . . Reeves v. Baker V. Reeves Reffell V. RefFell Regent's Canal v. Ware 11 .. 346 .. 586 .. 585 .. 646 .. 416 865,1266 .. 599 .. 1205 101,976, 993 Reg. V. Aire and Cal. Nav. Co 153 V. Clarke . . . . 295 . V. Ellis 1049 V, Howes . . . . 300 V. Lords of the Treasury 23 V. Metrop. Bd. of Works 149 ■ V. Metrop. Rail. Co. . . 946 u. Wellesley .. ..214 D. Westbrook .. .. 177 t). Wilson .. 214,759 Rehden v. Wesley 251, 890, 901, 904, 907 PAGE Reidw. Reid .. 773,837,838,840 V. Shergold 763, 815, 828 Reid's case .. •• . • 413 Reidpath's case .. .. 399 Reilley v. Reilley . . . . 242 Remington v. Cannon 1299, 1336 Remnant t). Hood .. 780,1096, 1102 Ren V. Bulkeley . . . . 768 Rendlesham (Ly.) t). Meux .. 1041 Rennell ti. Lincoln (Bp.) .. 175 Renshaw u. Bean .. •• 145 Renvoize ». Cooper .• .■ 1260 Reresby v. Newland . . 587, 804 Retallick I). Hawkes . . .. 1023 Reuss r. Bicksley .. .. 952 Revel D. Watkinson . . 209,210 Rew w. Lane 680 D. Pettet 547 Rex «. Bridger .. .. 170 V. Hatfield .. .. 1002 W.Lamb 1049 V. Mead 388 V. Newman . . ■ . 42 V. Rigge 1065 Reynell J). Lewis .• .. 393 V. Reynell . . . . 203 V. Spyre . . 80, 82, 90 Reynish v. Martin 1093, 1094, 1141, 1142, 1144 Reynolds, Ex parte V. Blake V. Bowley V. Godlee jj. Pitt v. Wright Rhodes v. Bates V. Buckland . . V. Ibbetson . . V. Muswell Hill Co, V. Smethurst . . — V. Whitehead . . 631, 939, 940 . . 990 . . 743 112,564 .. 496 207, 321, 344 289, 291 664, 678 . . 969 1152 545 1335 Rice V. Gordon V. Rice . . Rich V. Cockell • V. Whitfield 250, 254, 639 684, 687, 692, 1077 164,376,378 104,105 Richard, Re 42 n. Davies .. .. 1298 Richards, Re . . 643, 644, 1253 V. Bergavenny (Ly.) 1275 1023, 1072 .. 726 .. 141 .. 151 .. 134 • V. Barton ■ V. Davies • V. Fry ■ V. Harper ■ V, Jenkins • t;. Richards 131, 144, 187, 327, 331, 622 Ixxxiv Table of Cases cited. Richards v. Rose . . Richardson v. Chasen ■ V. Evans • V. Gibbevt - V, Greese - V. Horton ■ V. Langridge ■ V. Merrifield ■ V. Power ■ V. Richardson 282, 284, 456 ■ V. Smallwood - V. Smith, , PAGE .. 152 .. 1023 .. 500 .. ]20 853, 854 .. 247 .. 481 ,. 304 .. 1095 V. Watson — ^ V. Younge Richie v. Cooper Richmond, Re Rickard v. Barrett Eickards v. Gledstanes Eickett V. Gillemard . Eickett's Trust , Ricketts v. Bell V. Carpenter . t). Turquand . Hickit, Re . . Rickman v. Johns V, Morgan . Riddell v. Riddell . Rider v. Kidder V. Wager V. Wood . . Ridge's Trusts, Re . Ridges V. Morrison • Ridgway v. Sneyd . V. Wharton , V. Woodhouse Ridley v. Ridley Ridout V, Lewis V. Pain ■ V. Plymouth (Ld.) .. 273 .. 956 .. 1210 534, 535 .. 938 .. 403 .. 37 .. 650 .. 1131 .. 809 .. 87 .. 1217 .. 1209 .. 1216 10 .. 852 .. 1083 271, 870, 872 1243,1250 .. 188 .. 1319 .. 1240 1033, 1080 86, 952, 953 1107 73, S4 .. 582 .. 1203 .. 357 238, 884 Rigby, Ex parte V. Macnamara Rigden v. Vallier 457, 881, 923, 948 Right V. Beard ■ ■ V. Bucknall V. Bucknell . V. Compton V. Price . . . w. Smith . . Riley v. Garnett V, Packington . Rimington v. Cannon Ripley, Goods of ■ — V. Waterworth Rippen v. Priest Rippon ti. Dawding , V. Norton ■ Rishton ». Cobb 482 .. 685 .. 1084 .. 1218 .. 1180 .. 880 .. 1124 . . 394 517, 526 .. 1187 112, 724 .. 1260 318, 805 .. 578 370, 1140 Ritchie v. Broadbent . . V. Smith , , Rivers (E.) v. Derby (E.) Roach V. Garvan . . V. Hammond-.. -^— V. Wadham . , Roadly v. Dixon Roberdeau v. Rous . . Roberts v. Balls — — — II. Berry . ■ V. Brett V. Cooke V. Croft V, Dixall — — V, Dixvrell PAGE 33d 80 1096 298 .. 1314 830, 1085 . . 353 . . 860 .. 1050 .. 1018 .. 68 .. 1258 633, 685, 686 . . 780 179, 203, 317, 557 . 1230, 1280 . . 728 .. 151 .. 1227 .. 984 .. 1179 .. 1237 . 572, 1172 .. 1023 353 35, 169, 1326 ^— ^ V. Edwards V. Eberhardt V, Haines V. Eufiin — — V. Massey 1). Phillips —^— V. Pocock V. Roberts ■ i>. Rowlands — ^— ■ V. Smith V. Walker V. Wyatt Roberts' case . . . • . . 400 Robertshaw v. Bray . . . . 992 Robertson v. Armstrong . . 887 t). Fraser i57 , Add. iST V. Jackson . . , . 76 V. Lockie . . 732, 733 V. Morris 316, 678, 679 D.Powell .. 1184,1203 1). Quiddington .. 736 ». Skelton.. .. 992 !/. Smith .. ..1171 Robins 1). Evans .. 958,973 Robinson, Goods of .. ..1172 ,Re 1171 W.Addison.. .. 1234 719, 720 801,840 r.Ch. Bank of India 410, 412 569 201 457 55 838 • V. Anderson ■ I). Briggs . ■ V. Dickinson • V. Fitzherbert - V, Fraser . . - V. Geldart . . - V, Hardcastle - 11. Hicks or Robinson 1295 - V. Hunt .. .. 1308 - V. Killey , . . . 597 -«. Litton .. 676,1155 - V. London Hosp. 55, 110 - V. Lowater . ■ 798, 1066 Table of Cases cited. Ixxxv Robinson v. M'Donnell V. Mosgrove — — — r— V. Musgrove V. Page 1). Pett V. Preston . . — : V. Robinson - V. Shepherd ■ V. Tickell . . • V. Tonga . . • V. Waddelow ■ V. Webb . . ■ II. Wheelwright PAGE .. 274. .. 961 970, 975 75, 1032 .. 255 . . 948 107, 113, 203, 252, 902 1315 1248 244 1309 1236 384, V. Whiteley V, Whitley . . V. Will^inson ■ V. Wood Robinson's case . . Exors., Re.. Will, Re . . Robley 11. Brooke V. Flight V. Whittingham Roch V, Callen Roche, Re ' V. Roche Rochford v. Hackham — ^^— D. Hackman 1107, 1109, 1201 857 .. 849 .. 738 838, 1336 .. 399 .. 409 .. 913 .. 720 785,792 146, 147 540, 1239 .. 910 .. 779 .. 1150 301,1112 194, 557 538, 544 205, 1299 .. 814- .. 625 .. 950 .. 1274 Rochfort V. Fitzmaurice Roddam v. Morley . ■ Roddy V. Fitzgerald . . Rodgers v. Marshall . . Rodick V. Gandell Rodwell ». Phillips . . Roe V, Blackett ri.Grew 1297 V. Harrison . . 500, 505 ». JefiFery .. .. 1303 V. Nevill .. ..1203 t). Pattison .. ..1274 D. Prideaux .. 785,787 ». Quartley .. 186,1274 V. York (Archbp.) 510, 511 Roebuck v. Chadebet. . . . 462 Roffey V. Shallcross , . . . 1003 Rogers, Ex parte . . . . 1305 V. Acaster . . 334, 335 ». Challis .. ..630 V. Danvers . . . . 244 «. Frank . . . . 235 V. Goodenough .. 1191 V. Humphreys 676, 790 V. James . . . . 235 V. Maule . . . . 167 V. Mutton . . . . 662 PAGE Rogers v. Ox., Wor. and Wol. R. Co 430 -^—^— V, Rogers . . . . 869 B. Skillicorne.. .. 1066 V. Soutten . . . . 847 1). Thomas .. .. 1268 V. Waterhouse . . 1041 Rogers' case .. .. ., 401 Trusts . . . . 20 Rolfe V. Chester . . . . 691 t). Flower .. .. 715 V. Gregory 529, 531, 906 V. Perry , . . . 1325 D. Peterson . . . , 68 RoUand v. Hart Add. 650, 696, 1060, 1061 Roltt). Rolt 590 B. Somerville (Ld.) .. 1160 V. White . . . . 905 Ronalds v. Feltham . . . . 30 Roney's case .. ,. .. 402 Rooke 0. Rooke 591,819,837 B. Kensington (Ld.) .. 642 Roome v. Roome . . 848, 849 Roopert). Harrison 175,652,684,692 Roper V. Halifax . . . . 769 V. Roper . . . . 1294 Roper Curzoni). Roper Curzon 584 Roscommon (Css.) v. Fowke 808, 825 Rose B. Bartlett .. .. 1266 B. Calland .. .. 1043 ». Cunynghame 953, 996, 1173 V. Hill 1274 li. Rolls 366 V. Rose 1258 V. Watson . . . . 687 Roseberry v. Taylor . . . . 593 Rosewell t). Bennett .. .. 857 Roskell V. Whitworth . , 97 Ross V. Estates, &c. Co. . . 404 V. Borer ■ . .. ..13,14 V. Ross 1148 Ross's Trust 382 Rosslyn's (Ld.) Trusts ., 3 Rotheram ». Rotheram . . 34 Rothschild v. Currie . . . . 70 Rothwell V. Rothwell . . 561 Round «). Bell .. .. 541 lloundel D. Currer .. ..1107 Roundell v. Breary . . . . 608 Rouse V. Jones . . , , 258 Routh ». Webster .. .. 712 Routledge v. Dorrel 753, 776, 807, 816, 836, 837, 838, 1330 V. Grant . . . . 952 V. Low . . . . 120 Ixxxvi Table of Cases cited. Rowbotham v. Wilson PAGE 132, 153, 174 Rowden v. Malster . . . • 216 Rowe v. Rowe 115, 377, 854, 855 V. Wood . . . . 672, 725 Rowland v. Cuthbertson 352, 353 ■!). Gorsuch . . .. 1215 V. Morgan . . V. Tawney . ■ «. Witherden Rowlands v. Evans Rowlatt V. Easton Rowley, Re ' ■ V. Adams 1), Rowley v, Unwin .. 228 .. 749 .. 884 732, 941 .. 1214 .. 699 702, 724, 977 293, 840, 843 . . 377 .. 122 .. 1023 422 Rowortb ?). Wilkes .. Rowse V. S tanning Royal Brit. Bank v. Turquand Hotel Co.of Yarmouth, Re 432, 448 Royds V. Royds Royle V. Wynne Royon «. Paul Ruck V. Barwise Rudge v. Bowman V. Winnell Euding's Settlement, Re Rudyerd v. Neirin Bufiin, Ex parte Rummens v. Robins Rumsden v. Jackson Eundell v. Murray Ruscombe v. Hare Rush V. Higgs Rushbrook v. Lawrenc Rushworth's case Russel V. Russel V. Smithies Russell, Ex parte V. Buchanan V. Clowes V. E. Ang. Rail. Co.. . 676 V. Harford . . . . 132 II. Hartford .. .. 981 V. Jackson . . 54, 865 «. Kellett .. ..41,44 ■!>. NichoUs .. .. 301 V. Plaice 63, 254, 638, 1041 Road Purchase Monies 685 Russell's case .. 233,234 Policy Trusts, Re Add. 650 Ruth V. Seymour . . . . 762 1020 1032 453 445 303 Add. 824 329 723 86 36 123 345 258 662, 679 673 631 673 919 1095 167, 261, 262 Rutland v. Rutland V. Wythe Rutley V. Gill.. Butter V. Maclean Ryall V. Hannam 265 789 989 161 1215 PAGE Ryall V. Rowles .. 670 V. Ryall . . . . 246 Rvan V. Cowley .. 1299 V. Daniel .. 84 Rycroft v. Christie . . 284, 374 Ryder V. Wombwell . . .. 66 Rye's Settlement .. 754 Ryland v. Smith .. 330 Rylands v. Fletcher . . .. 154 Rynell v. Rynell .. 880 Ryves v. Ryves .. 453 St. Alban's (D.) v. Beauclerk St. Aubyn i>. Humphreys w. St. Aubyn V. Smart 1240 605 24 717 745 313 St. Barbe, Ex parte .. ., St. George v. Wake . . St. Germans (E.) V. Crys. Pal. Rail. Co 1076 St. John «. Boughton 529, 539 u. Wareham . . 628 St. Leonard's (Shoreditch) v. Hughes 979 St. Paul V. Birmingham Rail. Co 984 1). Dudley and Ward (Ld.) 624 St. Thomas's Hospital v. Ch. Cross Rail. Co 945 Saberton i>. Skells .. ,. 1312 Sabin v. Heap . . . . 1067 Sablonniere Hotel Co. . . 443 Sacheverell v. Froggatt . . 494 Saddington «. Kinsman . . 334 Sadler D. Lee . . .. 707,717 D.Pratt .. .. 839 Saffery v. Elgood . . . . 237 Sahlgreen and Carrall's case 399 Sainsbury ti. Matthews .. 950 Salisbury v. Denton . . . . 44 (Marq.) t). Gladstone 211 V. Hatcher 87, 934, 1028 V. Hurd . . . . 484 — V. Lambe V. Petty V. Salisbury 1185 1116 610 568 1002 303, 304 .. 939 777, 841 Saloway v. Strawbridge 678, 1040 Salter v. Metrop. Dis. Bail. Co. 945 Saltmarsh v. Barrett . . 262, 892 Salivey v. Salivey Salkeld v. Johnson Salles V. Savignon Salmon v. Cutts V. Gibbs Table of Cases cited. Ixxxvii PACE Saltoun (Ld.) v. Adv.-Gen. . . 1051 Salusbury v. Denton . . 780, 844 Salvin u. Weston . . 17, 353 Salway v. Salway . , , , 890 Salwey v. Salwey . . . , 329 Sampson D.Easterby.. .. 503 V. Hoddinott 148, 150 ■«. Pattison .. 681 ?). Sampson .. 1213 Samuda v. Langfoid . . . . ^6 Samuel D. Jones •. •• 654 11. Ward . . . . 856 Sandeman v. Mackenzie 779, 1290 Sander 0. Homer .. .. 919 Sanders «. Ashford .. .. 1198 ,;. Kiddell .. .. 13 V. Page . . . . 323 D. Rodway .. ..388 Sanders' Trusts, He 1111, 1221, 1306, 1331 Sanderson s. Bayley . . .. 1283 «. Dobson.. .. 1222 V. Walker 888, 940, 941 Sandford v. Morrice . . . . 929 Sandon v. Hooper . . 672, 673 Sanford t). Raikes .. ■. 1210 Sanger v. Sanger 343, 381, 384 Sankey Brook, &c. Co., Re . . 420 Sankey, &c. Co. u., Marsh .. 440 Sansom v. Rhodes . . ■ ■ 1021 Sarazin v. Hamel .. .. 126 Sarel, Re 382 Satt K. Chattaway .. 35,111 Saumarez v. Saumarez 1223, 1265 Saunders, Re . . .. 1180,1220 )). Cramer .. .. 551 1). Dehew .. 276,1087 • V. Merryweather 671 V. Milsome. V. Musgrave t). Owen . . V. Richardson V. Smith V. Vautier . . V. Watson . . Savage, Goods of V. Blythe i>. Lane V. Robertson . . V. Tyers Savery v. Dyer j;. King Savile v. Blacket V. Kinnaird Savill V. Savill Saville v. Blackett V. Saville 627, 631 .. 482 .. 828 .. 1290 121, 123 1099,1119 170, 272 1174 234 246 1292 1272 13 629 770 951 162, 574, 576 1236 852 Savini v. Lousada Saward v. M'Donnell Sawyer v. Goodwin V. Birohmore Saxon Life &c. Co., Re Say V. Creed . . Sayer v. Bradley Sayers' Trusts, Re Sayre v. Hughes Scales t). Baker o. Maude Scarborough v. Borman V. Saville Scarfs. Solby.. Scarisbrick v. Eccleston V. Skelmersdale Scarlett v. Abinger (Ld.) Scarpellini v. Acheson Scarsdal v. Curzon . . Scawin v. Scawin Shenk v. Agnew Schlumberger v. Lister Schneider v. Norris . . Schofield I). Heap Scholefield ®. Lockwood V. Redfern PAGE 295 818 717 1062 442 1310 1278, 1310 750 873 376, 377, 905 .. 285 308, 373, 383 748 272 928 4 1152 329 227, 228 875 1116 Scholes V. Hargreaves Scholey V. Venezuela Rail. Co. 953 . 848 . 347 24, 113 492 406 Schroder v. Schroder Scoones v. Morrell Scorell V. Boxall Scott V. Avery V. Beecher v. Colburn v. Dunbar V. Ebury (Ld.) V. Fawcett V. Hanson V. Harwood 1). Hastings (Ld V. Jackman V. JoBselyn 11. Key . . V. Langstaffe v. Miller V. Milne v. Nixon V. Parker V. Porcher v. Eayment 11. Salmond V. Scott 156, 161 1043 950 728, 956 1324 422 1056 393, 394 460 960 1284 472 v. Spashett V. Stanford 1), Steward 972 762 867 948 713 725 515 69 630 712 18 89,279, 309,311, 1295 ..367 ..122 ..559 Ixxxviii Table of Cases cited. Scott V. Tyler PAGE 254, 1140, 11«, 1143, 1147 Co. V. Scottish N. E. Rail, Stewart 93 Scotto V. Heritage . . . . 1039 Scriven v. Sandon . . . . 821 Scroope v. Scroope . . . . 874 Scrope V. Offley . . . . 289 Scudamore «. Scudamore . . 104 Sculthorpe v. Burgess 871, 924 V. Tipper 860, 890 Scurfield r. Howes .. .. 1131 Seagram v. Knight 538, 1154, 1157 Seagrave v. Seagrave Seale v. Seale .. Seaman V. Vawdrey ■ ■ . . V. Vawdry . • . . V. Wood Searby v. Tottenham Rail. Co. 378, 387, 560, 580 .. 1201 1029 750 518, 519 282 Searle ■«. Law.. Seaton v. Benedict . . . . 66 V. Mapp 957, 966, 967, 1018 V. Twyford . . . . 657 Seccombe v. Edwards 1112, 1220, 1221 Seed V, Bradford Seeley v. Jago Seers V. Hind.. Sefton (E. of) v. Hopwood Segram, Re . . . Selby 11. Alston Vp Bowie V. Pomfret t. Selby Sellick V. Trevor Sells V. Sells , . . Selsey (Ld.) v. Lake Semphill i). Bayley Semple V. Pink Senhouse v. Christian Senior v. Pawson Sercombe v. Saunders Sergison v. Sealey Serle v- St. Eloy Seton V. Slade Severs p. Severs Sewell V. Crewe-Read \V. Denny .. 855 .. 107 .. 501 1168, 1169 .. 1179 179, 619 .. 250 665, 666 37, 953 .. 969 75,77 1216 1142 .. 67 .. 144 .. 147 .. 287 200, 817 1323 626, 952, 1017 246 (Ld.) .. 53 .. 5,6 .. 429 .. 1150 200, 1107 .. 330 959, 961, 962, 1041 Shackleford, &c., Co. v. Owen 397 Sewell's case Seymour V. Lucas ■ V. Vernon Seys V. Price . . Shackelton v, Sutcliffe Shackjeford's case . * Shadbolt v. Thornton V. Vanderplank Shadwell v. Shadwell Shadworth «.. Temple Shaftesbury (E.) v. Marl- borough (D.) 219, 22 Shaftsbury v. Shaftsbury Shafto V. Adams .. Shakell v. Rozier • • Shakells v. Richardson Shakels v. Richardson Shales v. Shales . . Shallcross v. Oldham V. Tinden . . II. Wright . . !I, 222 1242 292 80 32 30 875 720 29 25 1258 128 Shannon v. Bradstreet 788, 791, 792, 814, 815 Shanley v. Baker 11. Harvey PAGE 401 50 853 551 995 Sharland ii. Mildow Sharnian, Goods of V. Collins Sharp, Ex parte V. Adcock V. Leach 11. Milligan i>. St. De Sauveur V. Sauveur v. Sharp Sharpe v. Foy Sharpies ii. Adams Sharpnell v. Blake Sharpp v. Leach Sharr v. Pilch.. Sharshaw v. Gibbs Shattock V, Shattock 233 1170 1102 389 1041 290 478 107 Shaw, Ex parte V, Borrer V. Bunny V. Cunliffe V. Gould V. Jackson 1). Jeffery t). Johnson V. ICay . . ti. Neale.. V. Rhodes • . V. Thackray . . V. Weigh Shaw's Settled Estates Trusts, Re . . Sheard ii. Venables . . Shearman v. M'Gregor Shee V. French V, Hale • • . . Add. 103, 108, 861 .. 1274 650, 1061 .. 685 .. 662 .. 291 .. 226 210, 1156 35, 380, 764, 908 .. 1259 29, 30, 893 679 1256 391 541 628 225, 541, 542 477, 493 466, 634 3 Add. 1274 490 485 958 612 31 1150 Table of Cases cited. Ixxxix Slieehy t>. Muskerry (Ld.) . . Sheerness Well CIo, o. Poison KheffielJ 11. Von Donop ■ V. Orrery (Ld.) • Gas, &c., Co. V. Har- rison Shelburne (E.) v. Biddulph. PAGE 787 069 803 110* 401 197 Sheldon 1). Cox .. '695, lOtfO 1). Sheldon .. ..1173 Shelford K. Acland .. 819,223 Shelley *■. Bryer .. ..1282 ». Shelley .. ..227 V. Westbrooke . . 299 Shelley's case 202, 212, 229, 556, 564, 1042, 1275, 1297 699 914 733 920 673 411 1287 968, 969 252, 902 261, 1314 .. 1008 .. 690 .. 412 456, 1262 .. 744 .. 913 .. ,538 .. 456 33 .. 1217 726, 728 .. 17 23, 588 .. 1114 .. 1216 .. 255 .. 122 .. 20 614, 1203 Add. 1282 .. 332 ,. 1023 .. 207 977, 997 Shelmardine v. Harrop Shelmerdine, Re Shepherd v. Allen V. Churchill • V. Elliott . V. Gillespie v. I ngrain . . V. Keatley . . r. Mouls . V. Nottidge ■ V. Shorthose V. Titley Shepherd's case Shepherdson v. Dale Sheppard, Ex parte , Re V. Duke V. Gibbons. V. Kent V. Lessingham • V. Oxenford V. Sheppard V. Wilson . . Sheppard's Trusts, Re Sherer v. Bishop Sheriff r. Axe. . V. Coates Sherrard v. Sherrard . . Sherratt v, Bentley . . V. Mountford Sherrington v. Yates . . Sherry V. Oke. . Sherwin «'. Kenney .. . If. Shakespear Shewell v Dwarris 374, 375, 1108 Shewen V, Vanderhorst . . 242 Shillito V. Collett . . . . 365 Ship V. Crosskill . . . . 405 Shipbrook v. Hinchinbrook 248, 302 Shiphard v. Lutwidge . . 32 Shipraan's case .. .. 412 Shipperdson v. Tower 104, 806 W. Shirley v. Martin r. Stratton PAGE 572 90, 956, 961 715 124-S Shirreffo. Wilks Shirt V. Westby Shish r. Foster .. .. 1030 Shores. Collett .. ..1006 «. Shore 209 V. Wilson .. .. 1210 Shovelton v. Shovelton . . 867 Shrewsbury (E.) ». Hope Scott 844, 1106, 1107 ■ ■». Hornbury .. 41 ■y.N. Staff. .. 394 — (Ly.) v. Shrews- bury (Ld.) 589,624 & Co. V. L. & N. W. Rail. Co. . . 89 Peerage Case .. 1008 . 1118 Shrimpton v. Shrimpton Shudal V. Jekyll Shute V. Shute . . Shuttleworth v. Greaves V. Lowther Sibbald v. Lowrie Sibley v. Cook V. Perry 12, Sibthorp, Re . . Sichel V. Mosenthal . . Sidebotham v. Barrington 846, 847, 857 .. 352 330, 1198, 1233, 1284 .. 698 .. 1017 .. 1197 79, 1233, 1296 .. 1173 V. Watson Sidmouth v. Sidmouth Sidney v. Ranger V. Sidney Sidney's case . . Siggers v. Evans Sikesu Wild.. Silberschildi). Schiott Silk V. Prime . . Sillick 1). Booth V. Trevor Sillitoe, Ex parte Silver v. Udall Silvester v. Wilson Simeon v. Simeon Simmonds v. Cocks V. Pallis Simmons v. Edwards V. Gutteridge V. Hesehine V. Leonard . . v. Simmons v. Swaine . . Simon v. Barber Simons v. Horwood . . V, M'Adam . . 712 1031, 1043 1234 875 560, 580 Add. 437 .. 894 .. 1024 669, 1260 32 1095, 1132 968, 1021 745, 746 .. 462 .. 880 806, 809 .. 1120 .. 895 .. 373 245 1039 .. 726 .. 373 .. 728 44, 1203 .. 566 ,. 1039 1022 Table of Cases cited. PAGE Simpers. Foley .. 136, 142 Simpson v. Asliworth 105, 1276 B. Bathurst ..• 768,888 •!). Chapman .. 737,742 -0. Clayton .. .. 508 ■ v. Frew J). Gutteridge. . «. Hornsby .. 'i). Howden (Ld.) V. Lester . . . . V. Morley . ■ . • V. Paul v. Terry ■ V. Vickers • ■ V. West Pal. Hotel Co, Simpson's case Settlement , Re 622, Sims V. Brutton Simson v. Jones Simson's Trusts, Re Sinclair V. Jackson Sing V. Leslie. . Singleton v. Gilbert Sinnett v. Hebbert Sish V. Hopkins Sisson V. Giles Sitwell v. Bernard Skarf v. Soulby Skeats r. Skeats Skeggs, Re . . Skelton v. Cole Skett V. Whitmore Skey V. Barnes 1097, 1111, 1318 Skidmore v. Bradford 67, 874 Skinner v. M'Douall. 11. Sweet . 778 238 1271 394 115 466 813 1037 1109 429 .. 401 .. 813 .. 717 575, 576 .. 901 .. 541 771, 825 .. 1284 Add. 52 665, 690 .. 107 . 113,1098 .. 272 .. 874 101, 102, 107 .. 951 .. 285 951 245 1238 115 701 291 Skinner's Trusts, Re Skirving v. Williams Skitter, Re .. Skottowe v. Williams Skrymsber v. Northcote 1258, 1268 Skull ». Glenister 132,134,492 Slade w. Rigg 682 Sladen v. Sladen Slaney V. Wade V. Watney Slark V. Dakyns 188, Slater, Ex parte V. Dangerfield Slater's case . . Slator V. Brady V. Trimble Slatter i;. Noton V. Slatter Sleech V. Thornington Sleight )'. Lawson 1279 .. 1014 .. 1249 Add. 775 72S 194, 1296, 1299 415 485 485 1193 387 370, 1246, 1254 .. 907 PAGE Slingsby v. Grainger 1212, 1229 Slipper •!). Stidstone .. .. 747 v. Tottenham, &c. Rail. 26, 501 .. 282 313,576 .. 102 .. 293 .. 955 .. 1045 .. 1059 .. 1098 .. 416 650, 651 .. 1117 .. 950 .. 153 .. lOU 424 255 234 625, 634, 731 1172, 1227 680, 1241 355, 356 Add. 808 Union Co Sloane v, Cadogan Slocombe v. Glubb Sloper, Re Sluysken v. Hunter Small V. Attwood V. Atwood V. Currie V. Wing Smallcombe v. Evans Smart, Ex parte V. Clark v. Harding V. Morton V. Sandars V. West Ham S medley v. Varley Smethurst v. Tomlin- Smith, Ex parte , Goods of , Re V. Adams ■ i>. Adkins V. Armstrong «. Ashton .. .. 814 V. Aykwell .. .. 672 ?;. Baker.. .. 659,1084 ■!>. Barneby .. .. 1312 0. Bate 298 11. Bolden .. ..888 f. Bruning .. .. 572 i>. Camelford (Ld.) .. 772 V. Campbell .. .. 1314 «. Capron .. 796,1000 ■». Charles .. .. 1291 «;. Cherrill .. ..599 ■B.Chichester .. .. 673 «. Clarke . . . . 966 v. Claxton .. 111,112 B. Clay 528 «>. Compton .. .. 1070 V. Cooke . . . . 209 », Cowdery .. .. 1144 V. Day 493 «. Doolan .. .. 613 D. Durrant .. .. 677 r. Evans 587, 589, 687, 1075, 1077 1'. Everett .. 238,736 V. Fitzgerald 1233, 1237, 1270 V. Frederick . . . . 623 ■ V. Gadsden - V. Garland ■ V. Green • V. Guyon 1017 276 661 1067 Table of Cases cited. xci PAGE Smith «. Harrison .. .. 1038 f. Henderson •• .. 1250 1). Henley .. .. 1012 P. Hibbard .. .. 1075 1). Houblon .. .. 771 V. Hull Glass Co. . . 425 u. Hurst .. 467,675 ^.Jackson .. .. 1034 v. Jeffiyes .. ,. 76 «. Jeyes.. .. .. 732 r. Jays 721 f. Johnson .* .. 120 I). Kay .. .. 89,290 D.King.. .. .• 614 V. Lidiard .. .. 1282 ■B.Lloyd.. .. 517,518 V. Lomas . . . . 5 «. Lyne.. .. 292,293 1). Matthews .. 361,863 «). Mules .. 723,731 1). Nangle .. .. 218 t. Neale 73 •W.Oliver .. .. 52 V. Osborne .. .. 1129 1). Owen.. .. .. 147 41. Palmer .. .. 1313 1). Parkes .. ..721 V. Peat 497 1!. Pepper .. ..1261 r. Pilkington .. .. 665 V. Pincombe . . . . 60 -v. Reese River Co. 405, 406 -y. Ridgway .. .. 1213 V. Smiih 129, 182, 2J0, 242, 248, 264, 266, 351, 367, 651, 723, 85 1-, 861, 877, 918, 946, 1180, 1250, Add. 749 u Spencer .. 356,1103 V. Spiisbury . . . . 260 V. Surman . . . . 950 . ii. Tebbett 1014,1015,1168 ■!). Thackerah .. ..152 ?). Thorne .. ..546 «. Timms .. ..896 v. Wall 645 v. Warde .. •• 875 ■(;. Watson .. .. 953 II. Watts .. ..962 -y, Weguelin .. .. 71 . r. Wheeler . . . . 767 u White .. 82,509 'W.Wilson .. .. 76 Smith's case ,. . . .. 441 Trusts, Re .. 1271,1114 Smither !). Willcock .. .. 1112 Smithwick v. Smithwick 105, 336 Smyth, Ex parte . . 20, 22, 744 PAGE Smythe V. Smythe .. ..1158 Sneed «. Sneed .. 814,816 Sneesby v. Thorne 87, 88, 1032, 1066 SnelU. Finch .. .. 671 Snell's case .. ,. .. 415 Snelson t). Corbet .. 357,1231 Sneyd u. Siieyd .. .. 351 Snow w. Booth .. .. 541 D. Milford .. ..732 w. Poulden .. 1094,1122 V. Teed 781 Snowball, Ex parte .. Add.TiQ Soady «. TurnbuU .. ..248 Soames v. Robinson .. 30, 32 Soar D.Foster .. 870,873 Sockett «. Wray .. .. 762 Solicitors, &c. Society 11. Lamb 647 Solley w. Wood .. 220,221 Sollory u. Leaver .. .. 8 Solly ». Forbes .. ..728 Solomon, Ex parte .. .. 744 ' ■ u. Solomon .. 1325 u. Vintners' Co. .. 152 Soltau V. De Held .. .. 155 Somerset v. Cox 650, 651, 655 &c. Co. ». Harcourt 132 Somerville's case .. .. 401 Sondes' (Ld.) Will, Re .. 837 Sonley II. Clock Makers' Co.. 1170 Sopwith II. Maughan 164, 353 Sorsbie u. Park .. .. 69 Sotilichos u. Kemp ,, .. 76 Soulle V. Gerrard .. ..1219 Souter t). Drake .. 968,1000 South, Ex parte .. .. 636 ■ V. Bloxam .. 689, 692 South of Ireland Coll. Co. v. Waddle . . . . 74, 421 South Wales Rail. Co. v. Red- mond .. .. . 429 South West. Rail Co. c.Wythes 93 Southdll t,. Br. Mut. &c'. So- ciety .. 447, Add. 447 Southampton (Ld. ) v. Hert- ford (Marq.) .. ..1,4 Southby V. Hutt 968, 978, 997, 1006 Southcombe J). Exeter (Bp. of) 95, 984, 1018 Southcot K. Watson .. .. 1228 Southern u. Hariman ,, 86 w. WoUaston .. 754 Southey t). Sherwood . . .. 122 D. Somerville (Ld.) ' 230, 1185 Southouse !). Bate .. 761,762 Sowarsby V. Lacey .. .. 1067 Sowden v. Sowden . . . . 60S i72 xcu Table of Cases cited. PAGE Sowell I). Garrett .. .. 1219 Sowerby, Re 1197 «. Gutteridge .. 281 Spackman II. Evans .. .. 415 1). Holbrook .. 256 ■ V. Miller 670 ■V. Timbrell 28,217, 1252 .. 1217 Add. 438 ,. 850 .. 113 .. 665 .. 1237 .. 1301 556, 581 934, 1024 .. 299 203, 880 ' .. 1084 Rail. 154,155 690,691 778, 1243, 1290 Spalding v. Spalding Spargos' case.. Sparkes v. Cator Sparling I'. Parker .. Sparrow i). Farmer . . ■ V. Josselyn . . «. Shaw Speake v. Speake Spedding V. Nevell . . Spence, Re .. •• V. Spence Spencer v. Boyes . V. Lon. & Bir. Co i>. Pearson V. Spencer ■ V. Topham V. Ward Spencer's case .. 1216 430, 502, 503, 507, 1070 .. 387 .. 1179 .. 366 364, 554 547, 606 .. 123 .. 1311 .. 848 365, 366, 367, 368, 375, Add. Ill Spering v. Spering . . Sperling, Goods of . . V. Rochfort Spicer v. Spicer . . Spickernell v. Hotham Spiers V. Brown Spink 1). Lewis Spinks V. Robins • . Spirett V. Willows 272, Spong V. Spong Spooner v. Sandilands Sporle V. Barnaby . . I). Whayman . . Spraage v. Stone . . Sprague, Ex parte Spread v. Morgan Sprigge 1). Sprigge Spring V. Biles v. Pride Springett v, Dashwood V. Jennings Sproule V. Prior Sprye V. Porter Spurrell v. Spurrell Spurrier u Hancock Spurway v. Glynn Spyer v. Hyatt Squire v. Compton Squires V. Ashford V. Campbell . 1321 . 1011 . 892 .. 634 .. 1182 . . 746 157, 161, 164 .. 1187 .. 1167 382, 604, 940 54, 1266 .. 37 82 1130,1284 .. 994 .. 1254 .. 356 209, 351 361, 368 .. 148 PAGE Stables, Re .. .. 638,1068 S lace and Worth's case 407,430 Stacey v. Elph 235, 876, 877, 878 Stackhouse t). Barnston . . 545 v. Jersey (Ly.) 633, 634, 686, 687, 1087 Stackpole 1). Beaumont 1141,1143 Stackpoble •«. Howell .. 1249 ■!). Stackpoole 561,599, 838, 926 Stafford (E. of) v. Buckley . . 9 (Ms.) ». Coyney .. 144 Staff. Can. Co. ■». Birm. Can. Co 151 Staff. Steel, &c. Co. v. Ward. . 395 Stahlschmidt ■». Lett . . 242, 245 Staight v. Burn . . . . 145 Staines v. Morris 508, 509, 1042, 1044, 1064 Stainforth «. Stainforth .. 594 Stains r. Banks . . . . 658 Stainton ■». Carron Co. 61, 726 Stalworthy D. Bancroft .. 826 Stammers IJ. Elliott .. 245,1250 ^). Halliley.. .. 1246 Stamp 1). Cooke .. .. 1314 Stamper V. Pickering .. 19 Standen «. Bullock .. .. ,278 D. Christmas . . . . '508 ■!). Standen .. .. 1215 Standley, Re 1293 ■«. Hemmington .. 1021 Stanes D. Parker .. .. 886 Stanford «. Roberts .. Add. 892 Stanhope, Re 1297 v. Manners «:. Stanhope Stanhope's case (L'!-) case Staniforth v. Fox Staniland V. Staniland V. Willott . . Stanley, Ex parte V. Bernes v. Chester V. Coulthurst. . K.Hayes v. Jackman . . V. Jones ., r. Robinson . . v. Stanley ■ V. Webber ■ v. White Stannard v. Forbes . . V. Lee • V. Ullithorne Stansfeld v. Cubitt .. .. 658 .. 208 .. 415 .. 959 .. 475 .. 867 .. 127 . . 420 .. 1164 .. 394 565, 1154 .. 1083 ..566 .. 8^ .. 88 928, 929, 1205, 1209 .. 1214 . . 492 .. 1070 Add. 119 .. 1069 .. 645 Table of Cases cited. XCIU StansReld v, Habergham V. Hallam .. r. tlobson .. Stanton v. Hall 331 V. Tattersall Stapelton v. Stapelton Staplehill V. Bully . . Stapleton v. Cheales . , v. Stapleton Starkey v. Starkey . , Stavers v. Barnard . , Stead V. Creagli V. Hardaker r. Newdigate ■!). Piatt 318,1117, H25 ■». Salt 716 Steed V. Calley . . . . 370 Steedman v. Poole 373, 382, 1060 945 1191 1056 95 727 PAGE .. 1331 345, 346 . . 535 , 362, 373 .. 960 59, 192 .. 599 .. 1121 .. 284 .. 557 .. 1282 . . 324 Add. 33 100, 107 Steel V. Mid. Rail. Co. Steele, Goods of i;. Mitchell .. V. N. Met Rail. Co., — — - — ^.Stuart V. Waller Steer v. Crowley Steeven's Trusts, In re Stein 1J. Kitherdon Stelfox V. Sugden Stent V. Bailis V. Robinson Stephens V. Bridges . . V. De Medina V. Gadsden ,i: Hotham . . V. James V. Olive v.Powys .. V. Reynolds . 280, 1031 978, 979, 997, 1017, 1023 Add. 1279 1223, 1228 17 992 1255 620 1021 837 254 298, 302 273, 385 .. 1211 .. 714 V. Stephens 156,158,159, 1106, 1265, 1334 ■ V. Taprell .. .. 1187 ■ V. Venables 246, 660, 908 Stephenson, Ex parte V. Dowson Stepney v. Biddulph . . Sterndale V. Hankinson Sterne, Ex parte V. Beck V. Wolfe Stevens v. Austen • V. Bagwell V. Bayley ■ V. Benning • V. Guppy V. Hale 606 1232, 1235 .. 993 .. 537 .. 207 .. 657 .. 623 935, 1039, 1040, 1041 82 .. 1194 .. 78 1008, 1017 .. 1270 Stevens v. Pyle . V. Robertson . V. Van Voorst Stevens' Will, Re .. Stevenson v. Abingdon Steward v. Blakeway . . Stewart, Ex parte , Re . . V. Alliston ^'. Austin v. Cockerell V. Forbes V. Gibson V. Stewart PAGE .. 1291 .. 909 603, 604 .. 1259 .. 1283 376, 724 .. 649 101, 107, 1172 .. 958,1017 405 753 720 712 63 403,405,415 253, 639, 900 .. 370 338, 362 .. 707 300, 874 792 Stewart's case Stickney v. Sewell Stienmetz v. Halthin Stiffe V. Everett Stikeman v. Dawson . Stileman v. Ashdown Stiles V. Cowper . Stills;. Hoste 1216 Stillman V. Weedon . . . . 824 Stilwell ^. Wilkins .. .. 1080 Stimson V. Hall .. ., 98 Stock V. M'Avoy . . Add. 875 i). Vining .. .. 617 Stockdale ^. Nicholson .. 1312 «. Onwhyn.. 82,121 Stocken «). Dawson .. .. 255 V. Dean . . . . 942 V. Stocken . . 595, 853 Stocken's case ,, 417,442 Stocker v. Brocklebank 94, 710 D.Harbin .. .. 35 V. Wedderburn 87, 93, 712 Stockley v. Stockley . . . . 60 Stockport Waterworks Co. v. Potter Stocks V. Barre V. Dodsley Stockwell V. Ritherdon Stoddart D. Nelson .. Stokes V. Cheek 1). City Off. Co. V. Heron . . V. Holden .. V. Moore V.Salomons .. Stokes' Trusts Stokoe V. Cowan ■«. Robson 1). Singers Stone V. Godfrey V, Parker V. Sione V. Theed 150, 153 1229 1313 1186 1283 14 146, 147 13, 14 ..169 ..953 .. 1223 .. 914 271, 272 .. 699 .. 145 60,311 31, 1225, 1325 543,875 .. 221 Table of Cases cited. PAGE Stonehewer v. Thompson . . 663 Stones !). Heurtley .. 456,457 K. Rowton .. .. 911 Stonor i;. Curwen .. .. 5&Q Stooke r. Stooke .. .. 1229 Stopford I). Canterbury (Ld.) 596 Storer v. G. W. Rail. Co. . . 93 ». Prestage .. .. 19 Storke v. Storke .. ..296 Storrs V. Benbow 752, 756, 1287 Storry t). Walsh Story V. Gape . * V. Johnson V. Windsor (Ld.) Stougliton J). Leigh . . Stourbridge, &c. Co. u. E. Ward Stourton v. Burrell . . V. Stourton.. Stowell V. Robinson .. Stracey, Re . . Strachan v. Thomas Strafford (E.) v. Wentworth (Lady) Strahan v. Graham . , Strang, Ex parte Strange v. Fooks (Ld.)t>. Smith Stranks v. St. John . Stratford v. Bosworth ~v. Twynam 247 876 485 1090 350 153 83 297 1021 1172 541 21 126 441 909 1145 475 551 941 Strathmore v. Bowes 312, 313, 576, 1191 Siraton t>. Eastall .. .. 1065 Stratton «. Best 159, 452, 457 V. Hale • .. ..578 «. Pettitt .. .. 480 Strawbridge, Ex parte . . 422 Stray «. Russell .. .. 411 Streaker, Goods of .. .. 1189 Streatfield v. Streatfield 555, 557 Street D. Rigby .. 94,728 Stretch ». Watkins .. ..1119 Stretton v. Ashmall . . 900, 901 Strickland K. Aldridge .. 1205 t). Strickland .. 37 t). Turner.. .. 1080 Stringer o. Gardiner .. 1215, 1282 ■ I. Harper .. .. 1323 Stringer's case .. ,. 432 Strode J). Parker .. .. 658 Strong, Re 577 D. Strong .. 271,972 Stronge v. Hawkes . . ... 688 Strother ». Dutton .. 1099,1112 Stroud «. Gwyer .. .. 742 V. Norman . . . , 839 Stroughill V. Anstey 638, 800, 1066 Stroyan v. Knowles Stuart, Ex parte -, Re PAGE .. 152 . . 632 .. 699 'w. Bute (Marq.) 295, 302, 1231 1). Cockerell .. 753,754 ». Kirkwall (Ld.) .. 379 Stubbs V. Holywell Rail. Cn. 79 V. Saro-on 365, 869, 1 1 73, 1271 Stultz, Re 1149 Stump 1). Gaby .. •• 291 Stumvolli). Hales .. .. 1289 Sturge V. Dimsdale . . « . ^^ «. Sturge .. .. 1297 Sturges 11. Corp .. •• 382 Sturgess c. Pearson .. 1112,1131 Sturgis V. Champneys 359; 360, 361, ■ 1). Dunn .. 1274 251, 899 .. 433 .. 158 Styles D. Guy .. Suburban Hotel Co., Re Sudbury v. Clark Suffield!). Brown 131, 132, 135, 152, Add. 131 (Ly.)i>. Suffield(Ld.) 609 Sugden u. Crossland .. .. 885 ~ ~ 366, 368, 369 Suggitt's Trusts, Re Suisse V. Lowther Sullivan v. Sullivan Summers, Re . . V. Griffiths Sumner v. Powell Sunderland, Re Surcome v. Pinniger Surman «. Surrnan Sury V. Pigot Sussex (Ly.) v. Worth Peerage case Sutcliffe V. Booth V. Cole ■ V. Richardson Sutherland, Goods of 848, 1239 .. 592 .. 1178 88, 1080, 1081 .. 715 .. 1173 553, 954 .. 1201 133, 134 .. 784 .. 71 .. 151 .. 1257 AJd. 867 .. 233 .. 955 .Cooke.. .. 114 (Css.) V. Northmore 811 Sutton u. Chetwynd .. 561,599 .. 252 .. 663 .. 502 .. 621 .. 675 .. 183 .. 1292 .. 1324 75, 91, 957, 983 1135, 1137 -V. Sharp -V. Smith J). Temple .. Swabey u. Swabey . . Swaby v. Dickon Swaine v. Burton v. Kinnerly . , Swainson y. Swainson Swaisland v. Dearsley Swallow u. Binns Table of Cases cited. PAGE Swan, Re .. 360, 917, 1248 V. Holmes .. .. 1272 t). Nortli British, &o. Co. 413 Swann 11. Burton .. .. 453 Swannock ii. Lifford or Lyford 352, 662 Swansborough v. Coventry . . 133 Swayne r. Swayne .. .. 652 Sweet t'. Benning .. 120,121 ■ v. Lee . . . . . . 953 v. Meredith 175, 1017, 1037 v. Seager . , . , 496 Sweetapple «. Bindon .. 317 Sweeting v. Sweeting . , 54 Swift, Ex parte .. ..597 t). Gregson .. .. 826 >,. Nash 12 V. Swift 299, 300, 387, 1127, 1223 ... Wenman 391, 575, 601, 617, 618 Swinfen 1). Chelmsford (Ld.) 62 „. Swinfen 62, 251,621,622, 890, 1227, 1228 Syers t). Jonas .. .. 76 Sykes, Re 382 V. Bond .. .. 1061 ■ V. Sheard 106, 766, 796, 805 V. Sykes . . 749, 1266 Sykes' case .. .. Add. 431 Sylvester B. Jarman .. .. 1260 Symes "j. Green . . ..1168 «. Hughes .. .. 861 Symonds v. Marine Society . . 50 B.Wilkes .. 382,556 Symons c. James .. 29,957 Symons' case .. .. •• 413 Synnot v. Simpson . . • • 895 Taaffe B. Conmee .. .. 1317 Taft K. Harrison .. •■ 411 Taggart v. Taggart . . 453, 558 Tait D. Lathbury .. 795,797 Taite u. Swinstead .. .. 801 Taite's case 405 Taitt, Ex parte .. ..744 Talbot «. Braddill . . 658, 662 «. Marshfield.. .. 584 V. Radnor ( E. ) 1 60, 892 (E.)«. Scott .. 893,1160 V. Shrewsbury (E.) 296, 297 V. D. Shrewsbury . . 853 Talbot '«. Stanifonh Tallis V. Tallis Taltarum's case Taniere v. I'earkes Tanner, Ex parte 'u. Dorvell ■('. Elworthy v. Herd ■ r. Smith V. Tebbutt Tapling v. Jones Tapply V. Sheather Tarbuck v. Tarbuck Tardiff r. Robinson Tardiffe o. Scrughan Targus v. Puget Tarsey's Trusts Tarte v. Darby Tasker v. Small Tassel v. Smith Taster ('. Marriott Tatam v. Williams Tate V. Austin V. Clarke r. Hilb«rt V. Leithead V. Williamson Tatem v. Chaplin Tatham v. Drummond V. Vernon 181, Tatnall v. Hankey .. Tattersall r. Howell . . Tayleur v. Dickinson Taylor, Ex parte , Re . . v. Austen V. Beech V. Beverley . . V. Biddall .. -v. Brown V. Clarke V. Debar V. Dulwich Hosf . V. Frobisher . . r. George • . V. Harewood V. Hawkins .. V. Haygarth 167, 66 V. Hillary V. Horde V Johnson .. V. Linley V. Martindale V. Meads • •378, V. Pillow PAGE 62 81 192 1288 203, 457 . 559 . 223 . 698 . 979 . 1109 . 145 . 628 . 1306 . 116 . 1076 . 613 . 375 . 992 i, 1026 . 665 . 223 . 727 . 346 . 1298 27, 129 . 128 287, 940 503 52, 1254 751, 864, 1183 .. 1164 .. 1152 .. 605 707,938 300,1167 363, 1146 552, 553 .. 1312 .. 1097 .. 1019 .. 113 .. 1084 .. 424 752, 1095 .. 866 926, 927 .. 639 261, 262, 265 .. 77 526,790 .. 1256 .. 50 9 808,933, 1168 .. 121 Table of Cases cited. PAGE Taylor v. Plummer • . . . 905 V. Popham . . . . 1 1 09 V. Portington . . 86 v. Pugh .. •■ 313 i>. Richardson .. 1207 «. Rundell .. ..725 V. Shum .. ..508 V. Stibbert . . 783, 1056 V. Tabrum . . . . 250 V.Taylor 18,30,110,111, 240, 437, 875, 1243, Add. 240 l\ TurnbuU . . V. Whitehead Taylor's Settlement, Re Teague's Settlement, Re Teasdale v. Sanderson Tebbitt v. Tebbitt . . Tee V. Ferris . . Tempest, Ex parte . . , Re.. • v. Tempest Temple (E. ) «. Chandos ( Dss Templeman i>. Warrington Templer, Re . . Tenant v. Goldwin . . •' Tench v. Cheese V. Roberts Tennant v. Heathfield Tennent v. Tennent .. Terrell v. Higgs Tetlow v. Ashton Tew V, Jones . . Teynham (Ld.) V. Webb 473 137 106 775 460 617 54, 1205 275 914 55 ) 1182 1112 702 133 717 1114 60 1279 482 777, 778, 1096 Thackeray «). Wood .. .. 1083 Thames Rail. Co., Brymer v. 77 Thatcher, Re 1095 Thatcher's Trusts, He . . 755 Theed's Settlement 778, 1100, 1123 Thellusson v. Rendlesham and Robarts . . 2, 1278 V. Woodford 1, 161, 162 Thetford (Mayor of) ■», Thicknesse v. Liege Thomas v. Bennett V. Britnell V, Buxton V. Cross V. Daring ' V, Davies Tyler 481 1289 854 30 989 467 712 1679 • V. Dering 86, 796, 806, 952, 1029, 1031 • V. Evans - 1>. Everard ■ V. Griffith - V. Hayward ■ V. Howell 1181 .. 387 .. 1252 502, 503, 504 .. 1107 Thomas V. Jones V. Powell 1). Roberts V. Thomas PAOE 805,811 .. 1082 . . 299 136,347,619, 524, 691, 826, 1133, 1194, 1202, 1208, 1235 • V. Wilberforce Thomas' case . . Thomlinson v. Smith Thormond (Ld.) v. (Ld.) Thompson, Goods of, , Re.. V. Beasly , V. Blackstone V. Bowyer . V. Browne . V. Butler . V. Cooper . V. Corby . V. Dixon . v. Drew ». Finch V. Fisher . V. Frere V. Grant V. GritRn . 1*. Hakewill t). Harding 11. Hardinge V. Harrison V. Harvey . . V. Heffernan 1). Hudson 749, 751, 1119 Jdd. 415 .. 1066 Suffolk .. 315 .. 1205 170, 490 .. 1315 .. 535 293, 804 .. 335 .. 245 .. 41 .. 724 658, 659 293, 884 Add. 564 .. 747 .. 245 594, 595 70, 483, 503 .. 232 .. 181 .. 572 .. 66 128, 129 38, 547, 662, 674 - V. Lapworth . . 496 -V. Lawley (Ly.) .. 1266 -v. Miles .. .. 1021 ■ V. Percival . . . . 738 ■ V. Robinson .. 1282 ■ V. Shakspear 42, 53 • V. Simpson 529, 557, 696, 776 ■ V. Stanhope .. 122 ■V. Thompson 42, 50, 618, 1128,1201,1290 - V. Tomkins - V. Towne . . - V. Waithman ■ V. Waterlow - V. Watts . . - V. Webster - V. Whitelock ». Whltmore Thompson's Trusts, Re Thomson v. Thomson 650 .. 35 .. 727 .. 136 .. 358 272, 279 1198, 1270, 1313 77, 292 .. 1272 SO Table of Cases cited. xcvii Thong D. Bedford Thorild, Goods of Thormond (E.) v, (E. oQ Thornber v. Sheard V. Wilson PAGE .. 203 .. 1167 Suffolk .. 1243 .. 287 16, 41 628, 669 95 Thornborougli v. Baker Thornbury v. Bevill . . Thorndike v. Hunt . . . . 904 Thome, Goods of .. ..1180 V. Kerr .. ..249 V. Thome . . . . 804 Thornett v. Haines . . . . 966 Thorneycroft v. Crockett 66,5, 674, 692 Thornhill v. Glover . . . . 990 V. Hall .. ., 1270 ('. Manning . . 682 Thornton, Ex parte . . 442, 746 D. Bright .. 602,775 V. Uixon . . . . 724 1). Ellis .. .. 114 V. Hawley . . . . 106 V. Howe . . . . 41 Thorold's Settled Estates Add. 490 Thorp, Re 1128 V. Booth . . . . 545 c. Facey . . . . 537 V. Holdsworth . . 686 ». Owen .. 188,1279 Thorpe v. Freer . . . . 989 V. Holdsworth 688, 1087 «. Thorpe 1278, 1281, 1334 Thrupp V. Collett V, Harman 42 377, 582 .. 1119 233, 234 482, 660, 671 677 Thruslon, Re. . Thrustout v. Coppin . Thunder v. Belcher Thurlow V. Mackeson Thurston, Re 1095 1). Anstey .. .. 531 Thwaites i>. Foreman .. 1246 Thynne ( Ly.) v. Glengall (E.) 551, 553, 849, 850, 852, 853 Tibbitts 1). Tibbitts .. 159,864 Tichener, Re 650 Tickle «. Brown .. 141,142 Tickner ?). Tickner .. .. 1182 Tidball v. James . . . . 523 Tidd V. Lister 308, 332, 362, 689 Tidey v. MoUett Tidwell V. Ariel Tierney v. Wood Tiffin V. Longman V. Tiffin Tildesley v. Clarksoii 480 1197, 1198 285, 863 .. 1,115 237, 619 478, 1017 PACE Tildesley D. Lodge .. 667,1056 Tillett V. Charing Cross Rail. Co 956 Tilley w. Simpson .. .. 1226 V. Thomas 976, 1018, 1019 Tilson V. Collins .. .. 853 V. 3 ones ,. ..1117 Times Life Assurance, &c. Co., Re .. .. 430,434 Timewell v. Perkins 1222, 1226, 1227 Timins v. Stackhouse Timson v. Ramsbottom Tindal V. Cobham Tinsley v. Lacy Tippets V. Heane Tippin V. Eckersley .. Tipping V. Power V. Tipping . . Tissen v. Tissen Titley v. Davies V. Wolstenholme Tiverton Market Act Todd, Re V. Bielby V. Gee .. V. Studholme . V. Wilson Toft V, Stephenson 14 651 1033 123 547 504 699 357 1256 666 677 454 364 1246 1032 989 886 529, 538, 539, 544 .. 1075 1). Stevenson Toker ii. Toker 289, 292, Add. 292 Toleman ». Portbury.. .. 505 Toler V. Slater . . . . 487 Tollemache v. Coventry (E.) 228, 754 Toller r. Attwood Toilet V. Toilet Tombes ti. Elers . Tombs t). Roch Tomkins «. White Tomkyns v. Blane V. Ladbroke 204, 880 .. 814 297, Tomlinson v. Dighton V. Gill V. Gregg r. Leigh .. Tompson v. Browne .. Toms V. Wilson Tonson f. Walker Tooke «. Ely (Bishop) V. Hastings .. Tooth V. Hallett Topham v. Portland (D.) Toplis V. Baker . . V. Hurrell Torrance v. Bolton 959, 302 35 959 162 364 764, 839 241 662 616 1172 666 121 682 608 648 842 1197 249 ■Idd. 9o9 Table of Cases cited. PAGE Torre r. Browne .. .. 18 V. Torre 616 Torringtoi\ t). Lowe .. .. 412 Tothill's case 402 Tottenham ». Green .. V. Townsend Toulmin v. Copland . . «. Steere Tourle v. Rand Tournay, Ex parte .. Tourville u. Naish Tower v. Rous ( Ld. ) . . Townend v. Toker . . ^^—— V. Tovfnend Townley v, Bedwell ■ V. Bolton ■ V. "Watson 655 .. 612 .. 719 .. 667 637, 685 .. 256 1056, 1082 .. 1322 68, 278, 279 246, 252, 737, 885 42, 101,977, 995 .. 1271 .. 1189 .. 1307 ti. Early V. Mostyn . . V. Townsend i;. W-estacott V. Wilson .. Townsend's case Add. Towns V. Wentworth ■ . Townsend v. Champernown . . 998, 1031 1288 1239 527 273 766 9, 952 Townshend v. Harrowby . . 605 t). Mostyn 1241,1324 V. Stangroom . . 75 (Ld.) V. Windham 582 ». Windham . . 763 Townson v. Tickell . . . . 878 Tracey ». Lawrence . . . . 679 !). Hereford (Ld.) .. 210 Trafford v. Ashton .. 588, 589 t). Boehm .. 901,1303 V. Trafford . . . . 228 Traill). Bull 1247 Trappes i>. Meredith . . .. 1151 Trash v. Wdod 179, 212, 861 Travers v. Travers 602, Add. 1202 Travis B. Milne .. 254,741 Tredwen v. Bourne . . . . 403 Trefusis v. Clinton (Ld.) . . 990 Tregqnwell v. Sydenham 869, 1257 Trench 0. Harrison .. 609,905 Trent ». Hunt .. .. 671 Tress v. Savage .. 430, 481 Trevanion, Re ,, .. 1179 Trevelyan !). Charter . . .. 531 Treves v. Townshend . . 252 Trevor v. Trevor 557, 561, 562, 565, 624, 781, 928, 929 Tribe !). Newland .. ..1118 Tricker B. Kingsbury .. 1140 Trickey v. Trickey Trigge b. Lavallee Triinbey v. Vignier Trimleston (Ld.) v. Hamill .. Trimmell v. Fell Trimmer v. Bayne B. Danby Goods of Trimne! Trinder v. Trinder Trippet v. Eyre Tristram v. Baltinglass (Ly.) Tritton, Re 41 V. Foote 61 71 673 763,811 37, 847, 849, 857, 1077 23 .. 1180 1195, 1214, 1229, 12,35 767 786 .. 218 Trollope B. Linton .. 775,818 V. Routledge . . 834 Trotman u. Flesher .. 815, 952 Trott B. Vernon .. ..1320 Trotter B. Williams .. 1115,1116 Troughton B. Hunter .. 730 ^ 6. Troughton 691,763 Troup's case . . . . . . 422 Troutbeck B. Bough ey .. 374 Trower B. Butts .. .. 1287 . • B. Knightley .. .. 801 Truell B. Tyssen .. .. 812 Trueman B. Loder .. .. 76 Trulock B. Robey . . . . 535 Trumper b. Trumper Add. 224, 689 Truro (Ly.) Goods of 1172,1192 Truscott B, Merchant Taylors Co 141, 142 Trye b. Corp. of Gloucester . . 53 Tucker v. Boswell — ■ B. Burrow V. Johnson V. Kayess V. Tucker B. Wilson Tuckey b. Henderson Tuckley v. Thompson Tudor V. Anson — : — B. Samyne Tuer B. Turner Tuffnell, Ex parte . Tugman b. Hopkins . Tulk B. Houlditch . B. Moxhay Tull B. Parlett TuUett B. Armstrong TuUoch B. Tulloch . . Tunaley v. Roch Tunstall, Re . . B. Boothby.. B. Brachen . . 113 873, 875 .. 881 .. 1257 .. 777 .. 680 .. 1240 .. 683 .. 817 . . 323 107,336 ..634 ..377 ..1109 148, 1070, 1085 .. 76 308, 373, 375, 383 987 1272, 915 656 1102 Table of Cases cited. xcix Tunstall v. Trappes Turing v. Turing Turner, Ex parte , Goods of , Re . . V. Allday V. Bryans t). Collins V. Gosset I'. Harvey J). Hudson V. Tnce I). Major 1). Marriott . V. Martin V. Maule J). Mirfield V. Moore V. Morgan V. Ogden 1). Reynall V. Robinson . V, Sargent ' V. Spooner V. Turner V. Whittaker . V, Wright Turner's case . . Turney t). Dodwell . Turpin, Ex parte V, Chambers . Turquand v. Kirby . V. Marshall ■ V. Rhodes Turton ». Benson V. Lambarde . Turvin v. Newcome . Tweddell v. Tweddell Tweddle v. Atkinson . Tweedale, Re.. Twigg V. Fifield Twinning v. Powell . Twisden v. Wise Twiss, Re Twogood, Ex parte . - V. Swanston PAGE 6H', 695 .. 1136 . . 906 .. 1188 . . 882, 1313 . . 494 ..826 Add. 290, 291 .. 1095,1136 796, 947, 1038 . 1283 . 90 736, 737 1077 1197 910 155 1116 460 41 713 126 559, 797 . 145 9, 892 . 1288 . 1158 . 323 . 547 . 908 . 979 . 437 423, 426, 428, 429, 431 958, 984, 1017, 1038 .. 572 Twopeny v. Peyton Twyford v. Trial Twynam v. Pickard . Twyne's case .. • Tylee v. Tylee U.Webb.. Tyler v. Lake . . V. Thomas V. Tyler . V. Yates . 928 4 .. 62 .. 67 .. 364 .. 989 .. 848 . . .■i29 .. 811 .. 746 .. 726 .. 1150 .. 234 .. 508 271,644 .. 675 .. 182 .. 375 .. 1058 .. 887 658, Add. 655 PAGE Tyndale w. Wilkinson .. 1288 Tyntu. Tynt 357 Tyrconnel (E. ) v. Ancaster (D.).. .. .. 782,842 Tyrrell v. Bank of London 287, 938 ■ II. Clarke • V. Hope • V. Marsh 23 374 768 Tyrrell's (Ly.) case .. .. 357 Tyrone (E.) i>. Waterford (Marq.) .. 258, 1226, 1294 Tyrwhitt«. Tyrwhitt.. .. 622 Tyson v. .Tackson . . 83, 538 Tyte«. Willis .. ..1276 Tytherleigh ti. Harbin .. 1261 U. Ulrich n. Litchfield .. 614,1203 Underwood, Re .. ..680 V. Courtown ( Ld. ) 695 V Joyce . . . . 683 ■D.Morris .. 1143 V. Stevens 235, 908 1). Wing 1114,1133 i). Young .. 1014 Unett u Wilkes .. .. 161 Union Bank, Manch, Ex parte 649 United Kingdom, Re .. 917 Unity Bank Association, Ex parte 707 University of Oxford v. Clifton 1297 Upperton n. Nickolson 215,958, 978, 997, 1000, 1036 Upton V. Bassett . . . . 276 V. Ferrers (Ld.) V. Vanner Urch V. Walker Usticke, Re . . V. Bawden Utterson v, Utterson Uvedale v. Halfpenny Uxbridge (Ld.) v. Bayley .. 1270 17, 18 876, 877 .. 1128 .. 1190 .. 1189 592, 616 .. 771 Vachell V. Roberts Vaisey v. Reynolds 1228, 115 1231 Table of Cases cited. PAGE Valentine f. Dickinson .. 1033 Valpy& Chaplin, Ex parte Add. 420 Van t). Barnett 105,107,112 V. Clark 1102 V. Corpe 500 Vance v. Vance >• 873, 874 Vancouver v. Bliss . . 1042, 1043 Vandenberg v. Palmer . . 285 Vandenbergh i). Spooner 77, 951 Van der Donckt v. Thellusson 71 Vandergucht ». Blake .. 1132 V. De Blaquiere 379, 384 Vanderplank v. King Vanderzee v. Aclom .. D.Willis .. Vane v. Barnard (Ld.) t). Cobbold •• (E.)». Rigden ■ V. Vane. . Van Grutten v. Digby Vansittart u. Vansittart Varley t>. Winn Varlo V. Faden Vaughan v. Atkins . . V. Buck V. Burslem. . ^ V. Foakes . . V. Hancock 754, 1317 .. 829 .. 692 1084, 1160 .. 395 244, 254 Add. 531,1090 568 300, 384, 386, 387 .. 1254 6 .. 181 115, 361 .. 228 .. 1270 .. 951 D. Headford (Marq.) 1295 V. Vanderstegen 35, 764, 908, 909 .. 381 .. 1311 749, 751, 1118 .. 1182 ti. Walker Vaux V. Henderson Vawdry v. Geddes Vawser v. Jeffery Veiga, Re Venezuela Rail. Co. v. Verney v. Verney Vernon v. Smith V. Vawdrey . . Vesey v. Elwood . • Vezey v. Jamson • . Vickers v. Hand v. Found ■ V. Vickers Vickery v. Evans Vigers v. I'ike Villareal D. Mellish .. Villers v. Beaumont . . Villiers V. Villiers Vincent v. Godson ■ V. Newcombe . . .. 235 Kisch 404, 405 222 503 903 990 43 977 1232, 1244 951, 956 .. 902 90, 1081 295, 298 .. 274 .. 557 36, 258 115, 1233 ■iJ.SodorandManCBp.) 809 «. Spicer .. 1154,1155 Viner «. Francis .. .. 1284 Viner v. Vaughan Viney v. Chaplin 717, 1 Vining's case . . Vinnicombe v. Butler 1 Vint V. Padget Vivian v. Jegon V. Mortlock Vizard, Re Vize V. Stoney Volans V. Carr Voller V. Carter Vorley v. Cooke V. Richardson Vouillon V. States Vowles 1). Young Voyle V. Hughes Vulliamy v. Noble Vyse 11. Foster Add, Vyvyan v. Vyvyan W. 737, PAGE 1156 065, 1073 .. 447 179, 1180 665, 666 .. 787 .. 762 .. 774 .. 1142 .. 598 .. 317 668, 682 .. 1129 .. 75 .. 1014 .. 283 740, 747 742, 904 .. 804 Wace V. Bickerton Wade V. Hopkinson V. Jenkins .. 581 .. 304 .. 736 610, 859 K. Ward 667 Wadhami). Rigg .. ..909 Wadley v. North . . . . 1098 Wadraan ■». Calcraft . . . . 498 Wagstaff t). Crosby .. 1111,1131 t'. Wagstaff .. 1195 Wagstaife 41. Smith .. 373,378 Wain V. Warlters . . . ■ 73 Wainewright, Re .. .. 196 Wainwright 2J. Waterman .. 731 Waite D. Jones .. .. 386 ■». Littleworth .. Add. \\2?i ■«. Morland .. ..1212 «. Webb .. .. 51 Wake V. Wake . . 164, 353 Wakefield v. Buccleuch (D. ) ■». Dyett .. V. Gibbon ., Wakeham v. Merrick Wakeman v. Rutland (Dss.) Walcot V. Botfield . Walcott V. Bloomfield V. Hall Waldo V. Caley V. Waldo Waldron V. Boulter V. Sloper Walford u. Gray V. Walker 153 1095 59, 62 14 1069, 1082 .. 1152 .. 195 .. 1252 43 .. 1155 .. 1289 .. 685 551, 771 .. 253 Table of Cases cited. PACE .. 1177 304, 701, 1133 .. 1003 . . 154. ..547 105, 166, 167 ..660 .. 1033 668,697 . . 820 1132, 1135, 1199 .. 1024 .. 1306,1336 935, 1284 892, 935 ..288 90, 239, 253, 884, 899, 909 . . 249 .. 1218 879,1109, 1144 .. 1076 585,597 .. 252 Walker's case 411, 412, 416, 438 Wall r. Cockerell . . . . 629 i). Colshead .. .. 110 V. Ogle 63 V. Rogers . . . . 63 II. Stubbs .. .. 84 V. Tomlinson 330, 1112, 1289 V. Wall 161 Wall's case .. 350, y^dd. 399 Wallace .y. Anderson . . 578,1150 ■!!. Att.-Gen. .. 43,1054 r. Auldjo .. ..370 ■ V. Patten V. Pomfret V. Wallace . . Walker, Goods of , Re . . V. Bentley — V. Brewster ^ ('. Butler v. Denne V. Giles V. Jeffreys V. Jones . r. Mackie ■ V. Main V. Moore V. Pechell V. Shore V. Smalwood V. Smith V. Symonds - V. Taylor - V, Tippin ■ r. Walker ■ v. Ware - 1}. Wetherell . - V. Woodward Waller v. Childs ■ V. Turner Wallgrave v. Tebbs . . Wallinger v. Wallinger Wallis V. Bastard «. Campbell .. V. Hodson • V. Morris r. Warren Wallis's case .. *. Wallop's Trusts, Re . . Walmesley v. Gerard V. Jowett Walmsley «. Foxhall. . B.Milne .. .• Walpole V. Apthorp . . (Ld.) V. Cholmon- deley(E.) (Ld.) V. Oxford (Ld.) .. 218 .. 857 .. 613 .. 1203 .. 467 54 772, 773 976, 1043 .. 295 .. 264 467, 691 399 764 927 769 16 238 1237 1205 Walrond r. Walrond Walsh V. Gladstone V. Peterson , V. Studdart , V. Wallinger V. Walsh Walsingham (Ld.) i rieke Walter v. Maunde PAOE 252, 300, 3S6 41, 236, 1249 .. 1219 .. 128 773, 829 . . 597 Good- .. 1062 26, 104, 781, 797, 981 Walters v. Northern Coal Co. 477 w. N. Coal Mining Co. 485 5>. Pyman .. .. 1043 V. Webb . . . . 520 Walworth J). Holt .. .. 726 Walwyn v. Coutts . . . . 894 r. Lee 1087,1089,1090 Wankford ?'. Fotherley .. 551 V. Wankford . . 234 Warbrick V. Varley Warburg 'ii. Tucker Warburton r. Farn n Hill V. Sandys . . V. Warburton .. 1250 .. 613 .. 768 472, 651, 652 887, 911 ,589 Warbutton v. Warbutton . . 353 Ward, Ex parte . . . . 408 , Re 898 «;. Baugh .. .. 162 v. Beck .. .. 653, 654 i;. Byrne .. .. 81 D. Carttar .. .. 665 V. Day 480 ■ ■!). Dudley (Ld.) .. 591 D. Dyas.. .. .. 614 «. Ghrimes .. 978,998 ». Grey .. .. 12, 1295 V. Lant 266 V. Lenthal ( Ld. ) «. Liimley V. Mackinglay V. Shallett V. Swift . . V. Trathen v. Turner V. Tyrrell u. Ward . . 144 V. Wolverhampton Water Co Ward's case . . Ward & Garfit's case Ward & Henry's case Ward's Trusts, Re . Warde, Re 902 D.Dickson .. .. 979 V. Dixon .. ..979 V. Warde 300, 387, 581, 608, 1062 .. 803 .. 511 683, 699 279 675, 809 .. 990 128, 129 .. 826 , ylild. 452 941 .. 399 .. 412 408, 412 Add.b^l cu Table of Cases cited. PAGE Warden K. Warden .. ..592 Warden v. Jones 360, 373, 550, 552, 533, 554 Warder B. Stilwell .. Wardle v. Brocklehurst K. Claxton 739 134, 136 .. 375 23 Wardroper u. Cutfield Wareu. Cann.. .. .. 1336 B. Egmont (Ld.) .. 1055 D. Gr. June. Co. .. 95 V. Watson 988, 1116, 1132 Waring «. Hoggart . . ■ . 959 . D.Lee .. 772,1282 ». Man. & ShefT., &c. Rail. Co. ■ ». Ward ■ t). Waring Warman v. Seaman . . Warner, Ex parte • • V. Baynes v. Smith ■ V. Willington 92 1072, 1322 .. 1169 .. 871 .. 299 .. 460 .. 720 .. 952 596, 780 441 Warr v. Warr Warrant Finance Co.*s case. Warren v. Davies . . . . 30 i;. Postlethwaite 808, 809 .». Rudall .. 160,1114 V. Warren . . 849, 850 D.Wright .. .. 14 Warrington ». Warrington .. 454 Warter.K. Yorke Warwick v. Warwick Wason ». Waring Wastneys v. Chappell M'aterer v. Waterer . . Waterhouse w.. Holmes V. Wilkinson Waterlow v. Bacon . . Waters.!). Taylor •• ' ■ y. Thanet V. Thorn Wathen v. Smith Watkins, Re.. V. Cheek V. Lewis Thorne v. v. Weston Watkyns v. Watkyns Watmough's Trusts . Watney.B. Wells Watson,' Ex parte , Re . . ' -y. Brickwood ■ ■». Ealfs • V. England . v. Foxon Hayes ■ V. King .. 303 562, 557 .. 1056 .. 207 Add. 724 53 988, 991 98, 132 707, 732 . . 546 288, 291, 939 855 1172 1067, 1095 194 263 1110 371 53 719 711 106 1321 416 1013 1317 no, 869, 1118 .. 1011 864, PAGE Watson i>. Knight .. .. 895 V. Lincoln (Ld.) 847, 852 v. Marshall 366, 367, 368 ■!). Marston .. 89,1032 V. Mid. Wales Rail. Co 423 ■». Northumberland (D). 460 a Parker .. 36,281 u Pearson .. .. 887 V. Reid .. .. 1033 «>. Rose .. .. 1077 1'. Saul .. .. 528 t). Spratley .. 50,951 ■». Watson .. 81-7,848 Watt ■». Creyke . . . . 839 -, D.Wood.. .. .. 6 Watts, Re 910 V. Ball 317 D.Christie .. 721,746 ti. Kelson .. Add. \35 D. Jefferys .. .. 471 . v. Symes ,. 666,681 V. Porter . . 467, 472 Waugh ». Carver 706,709,711 V. Land . . . . 663 Way, Re .. .. 283, 292 V. Bassett .. .. 727 V. East 56 Way's Settlement .. .. 916 Wayne r. Hanham ,. .. 681 Weakly?). Rugg .. ..1289 Weale D. Ollive 282, 761, 1148 Weall V. Rice 850, 851, 856 Weatherall D. Geering .. 78 Weatherley D. Ross .. .. 145 Weaver v. Maule 166, 167, 168, 213 Webb, Goods of .. ..1179 , Re.. .. 650,917 D.Austin .. .. 998 D. Bird .. .. 148 D. Byng .. 1195,1209 D.Grace .. ..1139 V. Honnor . . . . 820 D.Hughes ., 1018,1019 V. Hunt .. . . H6 D. Kirby .. 1038,1064 ■ D. Ledsam .. 884,1065 D. Rorke .. 630,679 D.Russell .. 620,1085 D. Sadler 1312, ildd. 837, 839, 1312 o. Shaftesbury (Ld.) 157, 769, 886, 912 V. Webb . . 3, 203, 209 V. WhiflSn . . Add. 436 D. Wools .. .. 865 Webber c. Stanley ,. 1209,1213 Table of Cases cited. PAGE Webster, Ex parte .. .. 170 • r. Boddington 750, 813 ». Bray .. .. 7^0 r. Cecil .. .. 91 II. Cook .. .. 629 ■ r. Dillon .. .. 94 r. Hale .. 1232,1234. V. Le Hunt .. 907 r. Parr .. 1302,1336 V. Webster 388, 618, 650, 740 Webster's case .. 403,405 Weddall «. Capes .. ..510 D.Nixon .. 235,1008 Wedderburn v. Wedderburn 252, 734, 737, 909 Wedgwood «?. Adams .. 89 Weeding v. Weeding Weeds v. Bristow Weeks v. Stourton Welby V. Eockliffe V. Welby 157,1 101, 995 1282 699 1322 58, 162 911 1287 943 953 Welch, Re Weld V. Bradbury ■ r. S. W. Rail. Co. Welford i7. Beazely .. Wellesley ». Beaufort(D.) 297,299, 300,301, 302, 595 V. Mornington (Ld.) 841 ^ V. Wellesley 782, 1159 (Vise.) K. Withers 214, Wells, Re V. Foster V. Horton V. Malbon V. Maxwell V. Partridge V, Slade . . Wendover v. Smith Wentworth v. Cock ■ V. Lloyd 215 1292 656 73 917 976,1019 484 459 126 79 938 West, Ex parte' .. ..1131 V. Berney .. .. 771 ». Dobb .. .. 503,505 V. Erissey 555, 557, 559, 561 i;. Holmesdale(Visc.) .. 929 ». Lawday .. .. 1213 V. Miller .. ..1136 V. Moore .. ..123! ■ V' Ray . . ■ V. Reid . . ■ V. Shuttleworth , ■ V. Skip .. - V. West . . . .. 808 .. 1008 .. 39 735, 736 .. 1094 West Mid. Rail. Co. v. Nixon 1026 Westbeech I). Kennedy .. 1178 PAGE Westbrooke v. BIythe 464, 470 Westby «. Westby .. ..59,60 West. Bank of Scot. j>. Addie 426 West. Sur. Tan. Co., Re .. 435 Western B. Russell .. 1029,1033 Westraeath v. Westmeath 385, 3S8 Weston, Goods of .. ..1187 1). Ceilings .. .. 941 t>. M'Dermott .. 1086 Weston's case 402,410,412,413, 436, 443, 445 Westover v. Chapman 252, 899 Westwood 1). Soutbey 1118,1307 Wethered v, Wethered Wetherell v. Collins . V. Geeriiig . V, Langston V. Wilson . \\'etherly v. Dixon \^'eyland v. Weyland. Whalley, Ex parte V. Whalley . Wharton, Re .. V. Baker Whatford v. Moore . Whatman v. Gibson . Wheatcroft v. Hickman Wheate v. Hall Wheatley i). Lane V. Purr D. Slade V. Williams Wheeler, Ex parte . u. Adams . V. Bingham 84, 654 697,698 .. 501 .. 878 .. 867 847, 849 . . 265 .. 206 .. 531 102, 107 .. 1311 .. 1139 .. 1085 .. 706 797, 1041 .. 249 .. 285 .. 1029 .. 545 699,724 .. 601 .. 1142 «. Howell 540,541,1320 V. Smith . . 54, 866, 872 Wheldale v. Partridge 100, 106 Whicheote v. Lawrence . . 939 Whicker «. Hume .. ..42,48 Whieldon ». Spode .. .. 1321 Whistler v. Webster 158, 162, 772 Whiston«.Rochester(Deanof> 58 Whitaker v. Wright Whitbread, Ex parte. V. Jordan . V. St. John Whitcher v. Penley . Whitchurch r. Bevis . Whitcomb V. Minchin V. Whiting. Wliite, Re V. Baker V. Bass V. Beck V. Birch . V. Bradshaw . 258 . . 632 C31, 1059 1285, 1288 .. 1220 .. 953 .. 938 .. 727 .. 919 .. 1131 .. 133 Add. 1046 .. 1211 .. 960 CIV Table of Cases cited. PAGE White ». Briggs 8G4', 868, 1309 V. British Emp. Co. . . 647 . t), British Museum .. 1178 . V. Chitty .. .. 1150 V. Foljambe . . . . 480 ■ ^ -y. Greenish .. .. 619 V, Herrick . . . . 304 -v. Hill .. .. 1002 1). Hillacre .. 539,665 V. Jackson . . . . 890 K. Nutts .. ..993 J). Parkin .. .. 76 ■». Peterborough (Bp.) 699 . 4'. St. Barbe .. ..335 ■ «. Springett .. .. 1312 V. Thornborough . . 555 V. Vitty .. .. 1265 ^.Wakefield.. 1060,1075, 1077 • B. Wakley .. 511,512 ■». White 219, 222, 223, 1321 ■«. Williams .. ..262 ■». Wilson .. ..826 White's case .. .. 408,411 Whitechurch t>. Holworthy 211, 212 Whitehead v. Izod . . 411, 445 ■». Parks .. ..150 Whitehouse's case .. -. 405 Whiteley ■». King .. ..1187 Whitelocke D. Baker . . .. 1014 Whitfield t). Bewit .. 1155,1156 . «. Hales .. ..299 •». Parfitt . . . . 628 ■ D.Pindar .. .. 22 7;. Prickett 1149,1150 Whitgreave v. Whitgreave . . 602 Whithorne «. Harris .. .. 1314 Whiting «. Bassett .. .. 1012 Whitley v. Lowe . . . . 547 «>. Whitley.. .. 160 Whitlock's ease .. 494,783 Whitman t>. Aitken ,. ..1134 Whitmarsh v. Robertson 585, 812 Whitmore, Ee .. ..613 V. Claridge . . 646 • 1). Empson.. .. 644 ■!). Gilmour.. .. 79 V, Humphries Add. 512 ■ V. Mason . . . . 743 ?!. Turquand .. 895 — V. Wild . . . . 909 Whitney v. Smith . . . . 900 Whittaker u. Howe .. ..81,95 Whittem u Sawyer .. .. 370 Whittemore v. Whittemore . . 974 Whitter 1). Bremridge 1111,1123 Whitlingdon ?). Corder .. 958 PAGE Whittingham, Re .. .. 389 ■«. WooUer .. 123 Whittle «!. Henning .. .. 335 Whitton V. Peacock . . . . 520 Whitwell 1). Arthur .. .. 732 Whitworth v. Gaugain 467, 634 Wliytall «. Kay .. ..1173 Wichalse «. Short .. ..682 Wick's. Parker .. ..-270 Wickenden ■». Webster .. 499 Wickham «. Bath (Marq.) .. 56 «. Wickham - 4!. Wing 739, 1155, 1160 .. 770 .. 664 52, 1315 .. 1170 Add. 55 1056, 1199 983, 1023 .. 76 . . 253 Wicks v. Scrivens Widmore v. Woodroff'e Wigan V. Rowland . . Wigg v. NichoU v. Wigg . . Wiggins ^s. Lord Wigglesworth v. Dallison Wightman v. Townroe Wigseli i>. Smith .. 765,782 «. Wigsell .. 621,623 Wilbraham i>. Livesey 478, 1060 ■!). Scarisbrick .. 927 Wilby v. W. C. Rail. Co. . . 429 Wilce D. Wilce .. .. 1224 Wild's case 1294 Wilday v. Barnett . . . . 822 1). Sandys .. .. 117 Wildbore u. Gregory . . ,. 819 Wilde 1;. Fort 1017 V. Gibson 89, 961, 1044, 1081 Wilder, Re 457 Wildes'!). Davies .. 6, 111, 1249 Wilding 1). Balder .. .. 861 ■!;. Richards .. .. 895 Wildman ■». Wildman 324, 330 Wildman's Trusts Wiles V. Gresham Wilkes r. Collins Wilkins v. Aikin v. Fry r. Hogg V. Knipe Wilkinson, Re V. Adam 1263 890, 902, 904 .. 622 .. 123 .. 509 893, 901, 900 .. 1109 . . 822 .. 1292 1). Barker . . Add. 52 1). Chapman •• 1274 V. Charlesworth 329, 361 V. Dent . . Add. 158 V. Duncan 750, 752, 836 V. Gibson .. 364, 391 «. Grant .. .. 630 i>. Hall . . . . 659 V. Joughin. . .. 1216 Table of Cases cited. PAGE .. 43 .. 411 44, 491 .. 616 .. 729 .. 912 ■ V. Eogers 499, 503, 1086 ■ v. Schneider . . 832 Wilkinson v. Lindgrew ». Lloyd V. Malin v. Nelson V. Page V. Parry Wilks V. Davis V. Groom Willan V. Lancaster V. Willan Willes V. Greenhill V. Hiscox Willesford, Re Willet V. Chambers v. Sandford Willett V. Blanford Willetts v. Willetts Williams, Ex parte 94 .. 701 .. 30 .. 91 648, 650, 651, 908 .. 891 .. 1172 .. 717 .. 53 .. 737 .. 1128 405, 425, 595, , Goods of , Re .• 1). Allen 1). Ash ton .• t}. Bagnall . . V. Baily V. Bayley . . ■V. Bolton (D.) 723, 724, 731, 743 • 1), Bosanquet V. Brynes . V. Burrell . 11. Callow . V. Cooke V. Corbet . V. Earle V. Edwards ■ V. Evans . ■ v. Glenton. V. Griffiths. . V. Haythorne V. Hay ward 1>. Headland V, Hensman - V. Hughes -V. Jekyl - v. Jersey (E.) • V. Jones - . Hyde .. 101,941 4). Woods . ..866 Woodward, Goods of . . .. 1186 V. Dowse . . . . 352 V. Miller . . . . 966 K.Woodward .. 376 Woodyatt ». Gresley . . . . 907 Woolcomb ». Woolcomb 1228, 1229 Woolen V. Tanner . . . . 826 Woollam 1). Kenworthy . . 1222 WooUaston v. Hakewill , . 1007 Woollaston's case •• .. 416 Woolmore ». Burrows .. 1154 Woolridge v. Woolridge 163, 837 Woolstoncroft v, Woolstoncrof t 1325 Wopham v. Wingfield . . 1248 Worcester Corn Exch. Co., Re 727 478, 1069 .. 1185 .. 695 .. 886 .. 385 945 1058, 1061 1>. Worsley .. .. 617 Worssam !i. Vandenbrande .. 518 Wortham v. Pemberton 361, 363 Worthington v. Evans 1145, 1146 V. German . . 687 V. Gimson .. 136 V. Grimsditch . . 547 Worley v. Frampton V. Worley • . Wormald v. Maitland . . Worrall v. Harford . • V. Jacob Worsley v. S. Devon Rail. Co. V. Scarborough ( E.) PAGE Worthington v. M'Creer . . 597 V. Morgan 687, 1059 1). Warrington 967,1023 V. Wiginton 160, 164 Wragge, Ex parte . . . . 435 Wrangham's Trust .. ..1123. Wray v. Hutchinson . . . . 732 «. Steele .. ..870 Wren v. Kirton .. ..989 Wrench B. Jutting .. 1226,1268 Wright, Ee 893 K.Atkins ,. 1274,1309 K. Burroughes . . 508 V. Cadogan . . . . 803 K. Callender .■ .. 17 K. Englefield . . .. 318 K. GofF .. ..616 K. Holford .. .. 1317 K.Howard .. 148,1044 1). Kirby .. ..698 K.Mayer .. .. 1062 V. Morley . . . . 362 K. Naylor .. ..297 • K. Pearson 204, 556, 564, 879 K.Rattray .. .• 144 K.Rogers .. .. 1180 K. Rose . . . . 680 K. Shelton .. ..1224 K. Snowe .. ..909 K. Stanfield .. ..694 K. Tuckett .. .. 21 K. Vanderplank 62, 290, 297 V. Vernon 186, 1275, 1277 K. Wakeford .. 809, 1177 K.Weston ,. ..1246 K.Wilkin .. 53,1107 K.Williams ..121,140,150 V. Wright 1 1 1 , 379, 383, 1220, 1331 Wright's case . . Add. 406 Trust .. ..911 -Will, Re .. ..917 WrightsonK. Calvert.. .. 1216 K.Hudson.. .. 696 K. Macaulay 1278, 1281 Wrigley K. Swainson . . .. 314 K. Sykes .. . 30,798 Wrixon k. Vize . . 527, 537 WroeK. Seed .. ..888 Wrottesley K. Wrottesley .. 1146 Wrout K. Dawes 244, 687, 1075 Wryghte's case .. .. 441 Wyatt, Goods of .. ..1192 K.Barnard .. .. 121 K. Barwell .. ..695 V. Harrison . . . . 152 Wyche, Re 886 h 2 CVlll Table of Cases, cited. PAGE Wycherley ». Wycherley 62, 67 Wycombe Unions. Eton Union Sil Wykham t). Wykham 22, 614, 879 Wylde, Re 454 — V. Radford .. 633 1060, 1061 .. 1298 .. 202 245, 904 .. 1256 Wyndham v. Egremont (E.) 624 Wyllie V. Pollen Wynch, Ex parte , Re . . — V. Grant ■ V. Wynch ■ V. Ennismore V. Fane V. Way . . V. Wyndham Wyndham's Trust, Re Wynn Hall Coal Co., Re ». Morgan Wynne m. Fletcher V. Styan V. Wynne Wynter v. Bold Wythe V. Henniker Wythes v. Lee Wythy V. Mangles 302 .. 1290 .. 492 .. 1256 603, 604 .. 420 1018, 1028 .. 1152 534, 663, 664 .. 1107 587, 588 .. 67 984, 1077 .. 1310 Yardley t>. Arnold Yarnold ». Moorehouse Yates t). Aston V. Burton V. Compton V. Farebrother V. Hatnbly 232 1150 627 798 14 884 534, 627 PACE Yates V. Jack .. .. 146, 147 ». Maddan .. .. 13 V. University Coll. Add. 1109 O.Yates 19,104,106,115 Yates's Trusts Yeates v. Groves ». Pym Yeatman V. Reed . . Yeats V. Yeats Yellowly v. Gower Yescombe v. Landor . . Yockney v. Hansard . . York V. Brown . . , 8cc. Co. V. Hudson 1). Stone Young D. Davies .. ■ t). Fernie V. Hassard t). Macintosh . . t). Martin . . v. Peachy ». Roberts . . V. Robertson V. Smith -0. Waterpark (Ld.) 529, 826 «. Wilton .. .. 528 ■«. Young .. 684,1321 Younge, Ex parte , . . . 746 ■!). Furse .. .. 1144 Younghusband «. Gisborne 1148, 1149 1136 .. 625 .. 76 634, 683 .. 1216 .. 790 .. 465 .. 1239 885, 888 .. 426 .. 454 1170, 1315 .. 97 35 566, 1122 .. 865 .. 924 677, 1040 1095, 1129 602, 603 Z. Zouch V. Parsons Zulueta's Claim, Re . .. 4S5 428, 429 ( cix ) TABLE OF THE EDITIONS OF WORKS CITED. Chitty, Contracts . . . . . . . . 8th ed. .Statutes ., ,. .. ,, 3rd. ed. Dart, Vendors & Purchasers . . . . . . 4th ed. Fisher, Mortgages . . . . . . . . 2nd ed. Gale, Easements .. .. .. ., 4th ed. Jarman, Wills . . . . . . . . 3rd ed. Lewin, Trusts . . , , . . . . 5th ed. Lindley, Partnership . . . . . , . . 2nd ed. Roper, Legacies . . . . . . . . 4th ed. Shelford, Real Property Statutes .. .. .. 7th ed. Smith, L. C. (Law) .. .. .. .. 6th ed. , Compendium of Real and Personal Property . . 3rd ed. St. Leonards (Ld.), Vendors & Purchasers .. .. 14th ed. , Powers . . . . . . . . 8th ed. , Property Statutes . . . . 2nd ed. Tudor, L, C, Real Property and Conveyancing . . 2nd ed. Williams (J.), Real Property .. .. .. 8thed. , Personal Property .. .. .. 6th ed. Williams (Sir E. V.), Executors & Administrators .. 6th ed. White & Tudor, L. C. (Equity) .. .. .. 4thed. Woodfall, Landlord & Tenant . . . . . . 9th ed. Where the original paging of a work is retained in the margin of subsequent editions, as in Blackstone, &c., &c., it was thought unnecessary to refer to any particular edition. ( cxi ) TABLE OF STATUTES CITED. The mark — between two sections indicates that these and the intermediate sections are referred to. Occasionally one of such sections is also separately referred to. PAGE 13 Ed. 1, c. 1 (St. de Donis) 191 St. 1, c. 18 (West- minster 2nd) 463, 464! c. 34 .. .. 352 17 Ed. 2, St. 1,,;. 16 .. .. 168 31 Ed. 3, St. ], ^. 11 .. .. 232 1 Ed. 6, s. 14 . . . . 39 5 Jfe 6 Ed. 6, c. 16, ss. 2, 3, 4 80 IIH. 7, c. 20.. .. 190,194 21 H. 8, L-. 4 798 26 H. 8, c. 13, 5. 5 .. .. 168 27 H. 8, c. 10 573, 580, 758, 922 s. 1 . . . . 9 0.28 175 31 H. 8, c. 1, s. 2 .. ..459 c. 13 175 32H. 8, 0. 1 1166 c. 7 175 c. 9 84 i;. 28.. .. 485,487 c. 32 459 C.34 502 ss. 1, 2.. ., 507 33 H. 8,0.20 168 34 & 35 H. 8, 0.5 .. .. 1166 s. 14 1167, 1169 u. 20 .. 194,200 lEl. c. 19 487 13 El. c. 4 1048 C.5 .. 275,281,376,570, 599, 644, 873, 894 ss. 1, 5 .. .. 270 o. 10 487 t. 20 656 14E1. .;. 8 190 0.11 487 0.14 487 18E1. 0. 6 494 0.11 487 27 El. 0. 4 313, 570, 634, 804, 827, 873 ss. 2, 4 .. .. 275 =.5 277 PAGE 29E1. 0. 5 270 30 El. 0. 18, s. 3 .. ..295 39 El. 0. 78, s. 3 . . . . 570 43E1. c. 4 40,58 u. 8 .. .. 232,245 0.29 487 IJ. 1,0. 3 487 21 J. 1, 0. 16 .. 545,546,727 ss. 3, 7.. .. 544 12 C. 2, c. 24 1166 s. 8 . . . . 294 s. 9 . . . . 297 22&23C. 2,0. 10 (St. of Dis- tributions), s. 2 . . . . 261 ss. 3, 5—8 . . 264 s. 4 .. ..266 29 C. 2, 0.3 (St. of Frauds).. 550 ss. 1,2 .. 480,950 s. 3 .. 510,950 s. 4 . . . . 950 s. 5 862,1166,1176 s. 6 .. .. 1188 ss. 7, 8 862, 868, 871 s. 9 . . . . 862 s. 16 .. .. 464 s. 17 .. .. 950 s. 19 .. .. 1180 s. 25 .. ., 263 30 C. 2, 0. 7 . . . . 248, 249 IW. &M. 0. 18 .. .. 41 3 & 4 W. 8j M. 0. 14 . . 28 4 & 5 W. & M. c. 16, ss. 2, 3 661 0. 20.. .. 464 0.24,5.12 .. 232 c.34, s. 12 248,249 7&8W. 3, 0. 36 .. ., 461 0.37 .. .. 48 10& 11 W. 3, o. 16, ». 1 .. 586 2 & 3 A. t. 4 694 4&5 A. u. 16, s. 19 .. .. 544 5 A. 0. 3 200 0. 4 200 5 & 6 A. 0. 18 .. 297,694 Table of Statutes cited. PACE 5& 6 A. c. 18, ss. 4, 11 .. 469 6 A. c. 2(Ir.), s. 4 .. ..696 ^.35 696 s. 15 .. .■ 1073 s. 19 .. •• 469 ». 28 .. •• 469 s. 31 .. 469,691 7 A. t. 20, ss. 9, 10 .. .. 1073 s. 17 .. •• 691 s. 18 .. .. 469 8 A. c. 19 (Copyright) .. 118 2 G. 2, c. 22, s. 13 .. ..214 4G. 2, c. 28 495 8.5 .. .. 8 s. 6 .. ..620 7G. 2, c. 8 81 c. 20, ss. 1, 3.. .. 677 8G. 2, c. 6 691 ». 1 . . . . 469 s. 17 .. .. 1073 s. 33 . . . . 469 c. 13 126 9G. 2, c. 36tSt.ofMortmain) 48, 57 s. 1 . . 48, 55 s. 2 .. 48,56,57 ss. 3, 4, 5 . . 18 10 G. 2, c. 8 81 11 G. 2, c. 17, s. 5 .. ..175 u. 19 21 14 G. 2, i;. 20, s. 9 .. .. 207 17G. 2, c. 29 .. .. 48 25 G. 2, c. 6, s. 1 .. .. 1170 26 G. 2, c. 22, s. 14 .. .. 48 5G. 3, c. 17 487 7G. 3, c. 38 126 14 G. 3, u. 78, s. 83 496,503,1082 17G. 3, c. 53 .. ..656 0.57 .. .. 126 27G. 3, c. 38 .. ..126 34G. 3, u. 23 .. ..126 36 G. 3, u. 52, s. 32 .. .. 1218 38 G. 3, c. 60, s. 78 .. .. 333 • c. 71 .. ..125 c. 87, s. 1 .. •• 232 s. 6 .. ..233 39&40G. 3, c. 11 .. ..187 c. 56 .. .. 106 c. 88, s. 12 .. 170 c. 98, 5.1 .. 2 s. 3 . . 3 u. 99, s. 23 .. 713 41 G. 3, i.. 59, s. 6 . . . . 200 c.l09(InclosureAct) 176 s. 35 .. .. 1010 42G. 3, c. 116 .. .. 53 ss. 38, 123 .. 1010 13 G. 3, c. 81 . . . . 656 PAGE 13G. 3, u. 107 .. .. 48 t. 108 .. .. 48 47 G. 3, sess. 2,c. 25, ss. 1,4, 7 655 c. 74 217 19 G. 3, c. 126, s. 1 .. .. 80 ss. 8, 9 .. 81 52G. 3, u. 101 .. 911,936 u. 116 .. .. 1009 53G. 3, i;. Ill .. .. 11 i;. 192 .. .. 455 51G. 3,0.56 125 c. 115 .. .. 169 c. 156 (Copyright) .. 119 0.161,8.28 .. 200 0.168 .. .. 809 55G. 3, c. 160 .. .. 11 c. 181 .. .. 103 u. 192 .. 212,1266 57G. 3, >;. 99 .. .. 656 58 G. 3, o. 15, s. 33 .. .. 18 1 8j 2 G. 1, c. 92, s. 9 .. 1001 I G. 4, c. 76, s. 23 .. 307,308 s. 21 . . . . 307 o. 83 656 5 G. 4, u. 39 48 u. 74, ss. 1, 2, 15 .. 964 6 G. 4, ^. 17, s. 1 .. ..170 c. 87 1012 0.91 656 7G. 1, c. 15 106 9 G. 1, 0. 11 . . . . 535, 546 s. 1 513, 545, 517, 727 s. 5 . . . . 66 s. 7 .. ..73 c. 31, s. 2 .. .. 169 0.78,5.2 .. .. 102 t. 85, o. 1 .. .. 56 i;. 91 175 10 G. 1, 0. 25, s. 37 .. .. IS 0. 56, s. 21 .. ..610 II G. 1, 0.20, s. 17 .. 51,655 11 G. l&l W. 4, C.46, ss.2, 3 827 c. 60 . . 915 c. 65, s. 9.. 211 ss. 12, 16, 17 485 1 W. 4, 0.40 .. .. 1258 2&3 W. 4,c. 71 (Prescrip- tion Act) 511 s. 1 .. 138 s. 2 139,141, 148, 151 5. 3 139, 141, lis ss. 4-8 .. 140 s. 9 .. 138 .;. 100 .. .. 1002 0. 115, s. 1 .. 41 3&1W. 1,0. 16 (Copyright) 119 Table of Statutes cited. PAGE PAGE & 4 W. 4, i;. 27 (Limita- 3 & 4 W. 4 , u. 74,s. 41 198,486 tions).. 353, 1251 ss. 42— 46 198 s. 1 .. 514 s. 47 198, 817 s. 2 .. 515 s. 50 216, 322 s. 3 516,517, s. 51 .. 216 518 s. 52 .. 216 s. 4 .. 519 s. 53 217, .322 s. 5 .. 520 s. 54 .. 217 s. 6 236, 520 ss. 56—61 199 ss. 7, 8 .. 521 5.62 .. 637 s. 9 . . 522 ss. 63-69 199 ss. 10, 11.. 523 70, 71 106, 198, S.12 3J8, 452, 199 457, 458, 523 ss. 72—74 199 8.13 .. 523 s. 77 107,319, ss. 14, 16.. 524 321,322,771 ss. 17, 18.. 525 5.78 ,. 771 s. 19 525, 545 s. 79 . . 486 s. 20 .. 520 ss. 80, 83.. 319 ss. 21, 22.. 525 s. 90 .. 322 ss. 23, 24.. 526 s. 91 .. 319 s. 25 527, 528, s. 92 .. 192 530, 538, 741 u. 87,ss. 2, 4 .. 1010 s. 26 .. 531 i>. 104 28, 29, 31, 37, s. 27 .. 532 168, 243, 247, s. 28 .. 533 357, 691, 985 ss. 29-31 532 c. 105(DowerAct) s. 30 .. 1001 ss. 1—7 .. 354 s. 32 . . 533 5.5 .. 356 s. 33 533, 1001 ss. 8-14.. 355 ». 34 .. 515 s. 12 .. 1245 s. 35 . . 522 c. 106 (Inherit- ss. 36—44 533 ance Act) 1015 s. 36 458,1156 ss. 1, 2 184, 188 =. 40 536, 537, s. 3 185, 1170 540, 543 ss. 4— 9 .. 186 s. 41 356, 540 s. 10 169, 187 s. 42 . . 540 s. 11 183, 187 c. 42 (Limita- 5.12 .. 187 tions) . . 546 4 & 5 W. 4 0. 22, ss. 1, 2 . . 22 5. 3 541, 545 s. 3 . . 23 0. 4 . . 554 0. 23, ss. 3, 5 .. 169 B. 5 543, 546 C.29, ss. 1,2 .. 901 t. 74 (Fines and c. 30, ss. 24, 25.. 1001 Recov. Ab. u. 38 .. .. 48 Act) 336, 352, u. 40, S3. 3—5 . . 640 607, 700 c. 83 .. .. 1002 ss. 1, 2 .. 193 c. 92 (Fines and 0. 15 194, 486, Recov. Ab. 769 Ireland) .. 192 ss. 16—20 194 5 & 6 W. 4, c. 63, s. 6 .. 964 s. 21 .. 636 C.65, ss. 1,5 .. 122 ss. 22—31 195 c. 76 .. .. 860 ss. 32-35 196 s. 94 487, 936 ss. 36—39 197 ss. 95, 96 . . 487 s. 38 . . 637 6 & 7 W. 4 c. 20, ss. 2, 3 ..1000 s. 40 198, 319, s. 64 . . 487 322, 486 1^.32 .. .. 693 CXIV Table of Statutes cited. PAGE 6 & 7 W. 4,0. 32, s. 1 .. 640 c. 71 (Tithes) ss. 67, 70., 176 s. 71 176, 1002 s. 86 . . 23 c. 85 .. 308,1009 c. 86, ss. 33, 38.. 1009 7 W. 4 & 1 V. c. 22 . . . . 1009 c. 28 .. .. 537 1 V.c.26(WilIsAct) 808,818,820, 822, 1174,1221,1264, 1273, 1300, 1301, 1331 s. 1 .. 1176,1221 s. 2 207, 212, 455, 862 s. 3 207,996,1169, 1176, 1194, 1265, 1266 s. 4 .. .. 1169 s. 6 .. 207,1183 s. 7 .. 623,1169 ». 8 .. .. 811 s. 9 .. 1176,1179 s. 10 .. .. 807 s. 11 .. 271,1180 s. 12 .. 271,1180 s. 13 .. 809,1178 o. 14 .. .. 1178 s. 15 .. .. 1170 s. 16 .. .. 1178 s. 17 .. .. 1178 s. 18 .. .. 1182 a. 19 .. .. 1185 =.20 .. 1183,1185 s. 21 .. .. 1189 s. 22 .. 1183,1191 s. 23 .. 828,1183 s. 24 824, 854, 994, 995, 996, 1167, 1235, 1265 s. 25 1199, 1257, 1265 s. 26 .. 1266,1267 s. 27 819, 821, 822 s. 28 1218,1274,1299 s. 29 .. 748,1304 s. 30 .. .. 882 s. 31 .. .. 882 s. 32 .. 1196,1199 s. 33 604,611,833,1198, 1200 s. 34 .. 455,1176,1191, 1192 1 & 2 V. c. 64, s. 1 .. 176,1002 ss. 3, 4 . . 1002 0. 94 .. .. 1009 ss. 1, 12, 13 .. 1010 u. 106, ss. 29,31 .. 713 u. 110 ..690,695,1049 1 & 2 V. t. 110,8.11 s. 13.. s. 14.. s. 15.. 8. 16.. PACB .. 464 465, 467 471, 472 472 472, 1050 ss. 18, 19 . . 466 2&3V. c. 11 .. .. 467 8S. 1, 2 .. 464 8. 4 .. ..466 8.7 .. 1049,1050 ss. 10, 11 .. 1049 C.13 126 C.17 126 u. 54, ss. 1, 4 300, 387 t. 62, ss. 1, 2, 4, 6 . . 176 8. 7 .. .. 1002 S8. 19— 21 .. 1001 3 & 4 V. c. 72 . . . . 1009 c. 82, s. 1 .. .. 472 8. 2 .. .. 466 u. 92 .. .. 1009 4&5 V. u. 14, s. 1 .. .. 713 c. 21 .. .. 1012 c. 35 .. 212,215 s. 50 . . . . 23 s. 85 . . . . 460 ss. 87, 89 .. 213 i;. 33 . . . . 55 c. 45 ( Copyright Act), ss. 2— 5,21, 24 119 S8. 13, 14, 17, 22 .. 120 s. 18.. 119,120 5 V. c. 27 487 5&6V. c. 39 .. .. 656 c. 100 .. .. 126 c. 108 .. .. 487 6& 7 V. c. 18, s. 74 .. ,. 883 c. 23 .. .. 215 c. 54, s. 3 . . , . 532 t. 65 .. .. 126 c. 73, s. 39 . . . . 887 7 & 8 V. c. 12 (Intern. Copy- right Act) 123,124 c. 37, 8. 3 .. ..55 c. 45, 8. 2 . . . . 45 v;. 55 .. .. 215 u. 66, 8. 5 . . 485, 860 s. 16 . . . . 350 c. 76, s. 8 .. .. 1332 0. 110, o. 54 .. 414 8V. c. 16 654 ss. 14, 16 .. .. 414 8 V. u. 18 (Lands CI. Cons.). . 147, 942, 998 ss. 1—3, 6—8 .. 942 =.7 .. ..208 ss. 9, 10, 12—14 .. 943 Table of Statutes cited. cxv PAGE . c. 18, s. 15 .. 936 ss. 16, 18—23 .. 943 B. 69 102,944 ss. 70— 76.. .. 944 s. 76 102, 944 SS.77— 80.. .. 944 s. 81 .. 1065 s. 82 945, 1065 ss. 83, 84 . . .. 945 s. 85 945, 1076 ss. 92—131 .. 946 3.119 .. .. 26 s. 132 .. .. 1069 8 V. c. 20 (Railway Clauses Cons.) . . 942 ss. 42—44 . . . . 946 :i. 77 .. 946,1065 8 Si 9 V. u. 56 . . . . 208 c. 93, s. 9 .. .. 120 c. 97, s. 1 . . . . 1247 c. 106, s. 3 188,462,480, 481, 510, 933 B. 4.. 501,1001, 1069 s. 5.. .. 67 s. 6.. 194,320, 322, 654, 1331 s. 7 320, 322, 878 s. 8 .. .. 1332 s. 9 . . . . 620 c. 109, s. 18 .. 81 c. 112 .. 851,1004 ss. 1, 2 .. 225 u. 113, s. 3 .. .. 1007 u. 118(InclosureAct) 177 ss. 90, 91 .. 461 s. 147 .. 1001 9 & 10 V. c. 27 .. . • 640 c. 59 .. ..41 c. 70 .. .. 1001 u. 73, s. 18 . . 176 B. 19 176, 1003 s. 20 .. 176 10 8i 11 V. c. 17, s. IS .. 1065 c. 34 .. .. 155 c. 95 .. .. 120 c. 96 .. .. 256 ss. 1, 2 .. 916 li. Ill .. .. 1001 11 & 12 V. t. 36, s. 41 .. 3,5 c. 99, ss. 13, 14 .. 461 12&13V. c. 26 785,791,792 S.2.. .. 793 s. 4 . . . . 793 ss. 5— 7 .. 794 c. 49, s.i . . 55 c. 68 .. .. 1009 ». 15 .. 308 TAOE 12&13V. c. 74 .. 256,916 c. 83 .. .. 1001 c. 106(Bkcy. Act, 1849) .. 646 8.125 .. 743 s. 143 .. 695 s. 171 141,746,747 13&14V. c. 17 .. 785,791 ss. 2, 3 , , 793 c. 21, s. 4 , , 494 s. 7 .. 1007 c. 28, s. 1 45 916 c. 35 917, 1027 ss. 1, 14, 15 258 s. 22 , , 259 M, 60 (Trustee Act, 1850) • • 700 s. 2.. 256,701 ss. 3, 4 701 ,702 s. 5.. , , 919 ss. 6, 7, 8 701 ,702 ss. 9, 10 701, 702, 918 ss. 11— 15.. 918 s. 19 , , 702 s. 20 703 918 s. 22 , , 918 ss. 23, 24 918 919 s. 25 , , 919 ss. 26, 27 , , 702 s. 28 .. 703 s. 29 , , 919 s. 30 460, 920, 987, 1037 s. 31 • • 702 ss. 32—35 . . 913 s. 36 , , 914 s. 37 703 920 ss. 41, 44 , , 920 s. 45 , , 920 s. 46 169 ,883 ». 47 .. 169 s. 48 703 s. 49 703 920 s. 51 703 s. 54 , , 703 SS.55— 57 704,920 M 65, s. 3.. ,, 48 U. 104 .. 125 ,126 14 & 15 V. .; 25 208 c 53 1001 c . ^9, s. 14 1009 c 104 .. 936 15 & 16 V. c 12 124 s. 14 126 c 24 1176 c 49 55 u 51 212 ox VI Table of Statutes cited. PAGE 15 lS!16 V. c. 51, s. 48 .. 215 s. 49 .. 1010 i;. 55 (Trustee Ex- tension Act, 1852) .. 917 S.I.. .. 919 s. 2.. 700,918 ss. 3, 4, 5 .. 919 ss. 6, 7 .. 702 s. 8.. .. 914 s. 9.. .. 913 s. 13 .. 220 u. 76, ss. 210-212 495 ss. 219, 220 677 u. 80, s. 40 .. 987 ss. 32-34.. 988 0.86,8.22 .. 1012 s. 42 .. 1027 s. 45 .. 258 s. 48 683, 987 ss. 55, 56 .. 987 c. 87,s. 15 .. 701 16&17V. e. 45 .. 19,79 c. 51 (Succ. Dut. Act), s. I .. 1051 s. 2 1051, 1053' s. 4 764, 1051 s. 5 .. 1054 s. 18 .. 1052 s. 20 . . 1053, 1054 =.29 .. 1052 S.42 801,1052, 1053, 1054 ss. 44, 45 1052 s. 52 ..1052, 1054 u. 56, s. 6 .. 1074 ...57, s. 8 .. 1010 ^;. 70, s. 108 .. 214 s. 113 .. 485 s. 116 633, 1068 s. 119 .. 102 ». 122 933, 1067 s. 123 .. 732 s. 136 .. 767 1. 107, ss. 44, 46 .. 120 ss. 195—197 1049 C.113, s. 114 .. 1050 c. 117, s. 1 .. 1010 s. 2 .. 1011 c. 137 (Charitable Trusts Act) 58 s. 24 936, 1001 o. 26 .. 1001 ss. 28, 30, 32 915 17&18V.C.36 .. .. 275 s. 1 . . 644 PAGE 17S:18V.c.36, ». 7 . . 645 C.S5 .. 644 c. 83 .. 575 c. 90 11,658 0. 97, ss. 10 -14.. 26 c. 104,ss. 30, 37 .. 653 ss. 66- -69 . . 653 s. 6S .. 654 ss. 71, 72 .. 653 c. 113.. 356, 667,995,996, 1238, 1323 s. 1 1324, 1326 S.2 .. 1326 c. 125 955, 1021 s. 11 ., 729 s. 12 .. 956 s. 18 .. 951 s. 83 .. 97 18&19V.C.15 .. 467 S.4 .. 466 s. 5 .. 1049 s. 6 .. 466 s. 11 .. 1050 ss. 12, 14 .. 11 c. 42 .. 1012 c. 43 303, 573, 574, 575 ss. 1, 2 .. 576 ss. 3, 4 .. 577 c. 91, s. 10 .. 700 c. 98, ss. 39, 40 .. 120 c. 122, s. 83 .. 147 s. 109 .. 496 u. 124, ss. 32- -35.. 1001 t. 194 (Charitable Trusts Act) 58 19&20V. C.9 .. 208 0. 19, ss. 12, 13 .. 545 c. 80, s. 3 .. 1011 c. 94 .. 266 u. 95 .. 936 u. 97, 5. 3 .. .. 73 s. 9 544, 727 s. 10 539, 546 s. 13 .. 727 s. 14 .. 727 s. 17 .. 1009 s. 19 .. 308 c. 120 (Settled Es- tates Act) 487 s. 1 .. 488 s. 2 488, 986 ss. 3—10 489 s. 11 .. 4S9, 1155 ss. 12— 18 .. 489, 986 S. 19- 25 .. 490, 986 Table of Statutes cited. cxvii. PAGE 19&20V.C. 120, s. 23 .. 1155 ss. 25-31 490 s. 32 .. 486 s. 33 486, 487 s. 34 490, 986 s. 35 . . 485 B. 36 . . 490 ». 37 490, 986 ss. 38—40 490 s. 41 .. 491 s. 42 491,986 s. 43 484, 491 s. 44 486, 491, 986 s. 46 486, 491 20&21V. c. 31 .. .. 177 ss. 7—11 .. 461 c. 54 . . . . 909 .;. 57 .. 325,338, 366, 378 ss. 1—3 .. 336 s. 4 .. 337 u.77,s. 3 .. 234 ss. 61, 62, 64 1008 s. 74 .. 232 ss. 77, 78 .. 236 s. 79 .. 235 u. 85 .. 352,383, 388, 1168 s. 16 .. 390 s. 21 329, 389, 707 =. 25 390, 707 =. 26 390, 707, 805 s. 32 .. 391 s. 33 390, 598 s. 34 . . 390 s. 35 . . 59S s. 52 . . 466 21 & 22 V. c. 25 .. .. 1009 s. 3 . . 484 c. 27 92, 96, 97, 143 c. 42 ( Prescription Act, Ireland) 138 u. 44 . . 487, 936 c. 56, s. 12 .. 983 c. 57 . . . . 487 c. 70 .. .. 126 c. 77 .. .. 487 ss. 1,2 .. 488 b. 3 . . 491 ». 4 . . 488 B. 5 . . 489 s. 6 .. 490 s. 8 .. 486 c. 94 .. .. 212 s. 14 215, 1010 PAGE 21 & 22 V. u. 95,s. 16 .. 235 s. 18 .. 232 c. 108 .. 352,388 s 6 329, 389, 707 ss. 7, 8 .. 389 s. 10.. 389,707 22&23V. c. 21 .. .. 168 0.35 .. 917,935 ss. 1, 2 .. 506 s. 3 . . 608 s. 4 497, 969 ss. 5—8 . . 497 s. 10 10, 581 s. 1 1 . . 10-50 s. 12 802, 808, 810,814 s. 13 .. 796 ss. 14—17 .. 799 s. 18 .. 800 ss. 19—21 .. 185 s. 22 .. 1049 s. 23 639, 885 ». 24 . . 998 s. 26 .. 241 s. 27 .. 242 s. 29 242, 877 s. 31 250, 255, 287, 924 ». 32 897, 898 c. 39 .. ,. 897 0.43 .. .. 177 ss. 10, 11 .. 461 o. 61, s. 4 .. 598 s. 5 .. 617 c. 63 .. 71,72 23 & 24 V. 0. 27, s. 44 . . 499 c. 28 .. .. 81 s. 7 .. 828 0. 38 695, 898, 1049 s. 1 467, 691 6.3 36, 467 s. 5 467, 691 a. 6 .. 506 s. 7 . . 925 s. 9 . . 893 BS. 10, 11 .. 897 s. 12 .. 897 s. 13 .. 538 u. 59 . . 487, 936 u. 83 .. .. 576 u. 93 .. ,, 176 c. 105, s. 27 .. 910 0.106 .. ,. 942 0. 115, s. 1 .. 1049 s. 2 .. 1050 0.124,8.20 .. 220 0.126,8.1 .. 495 ss. 2, 3 . . 497 CXVIU Table of Statutes cited. PAGE 23 & 24 V. c. 126, s. 26 .. 356 c. 127, s. 28 .. 652 c. 134, ss. 1, 3 .. 41 c. 136 (Charitable Trusts Act) 58, 1001 c. 144, s. 6 .. 390 c. 145 285, 673, 902, 935, 1256 s. 1 795, 801 ss. 2, 3, 4, 7 802 =. 8 . . 220 s. 9 220, 638 s.]l(sub.l) 680 (sub.2) 659 (sub.3) 675 ss. 12—16 680 s. 25 .. 898 =. 26 596, 1093 s. 27 559, 915 s. 28 .. 915 s. 29 639, 802, 885 =.30 . . 241 S.32.. 802,885, 898, 916 s. 34 241, 596, 802, 885,916, 1093, 1255 c. 154, s. 104 .. 23 24& 25 V. u. 9, s. 1 .. ..49,56 ss. 2, 3, 4 ..56,57 s. 11 .. 654 s. 15 . . 1049 ell .. .. 72 c. 62 .. .. 516 .;. 73 .. .. 126 c.96,s.80 249,903,909 ss. 81— 84.. 427 s. 86 903, 910 c. 101 .. .. 125 c. 105 .. .. 487 t. 114 .. 806,807 ss. 1—5 .. 1164 c. 121 .. .. 807 ss. 1—4 .. 1164 c. 131 .. .. 936 c.l34(Bankr.Act, 1861) 695, 746 s. 154 437,613 25 & 26 V. c. 17, s. 5 56, 57 c. 42 .. .. 1175 ss. 1 — 4 .. 97 0.52 .. .. 487 c. 53,ss. 63, 73 .. 631 s. 104.. 694, 1074 i;. 63, s. 50 .. 654 >;. 67, s. 85 1074, 1076 i;. 68, s. 1 .. 126 PAGE 25 & 26 V. c. 68, t .12.. 124 , 126 c. 86, 3.13 1068 c.89,s 3(JointSt. Comps.) 396 s 4 396 ,713 ss. 6,7 396 ss 8, 9 . . 396 ,397 ss. 10-21 397 ,398 ss. 18,21—49 397, 406 414 ss 20, 22 . . 473 ss 23—29 .. 407 s 24 414 ss 30—36 .. 408 E>. 30 654 £j. 38 409,410,415, 435,436,438 SS. 39—44 .. 417 ss. 45,46 417 418 s. 47 419 420 s. 48 396,418 ss. 50—67 .. 418 ss. 68—73 .. 419 s 74 435 ss 75, 77, 78 437 ss. 79—82 .. 433 ss. 76, 99, 105 437 ss. 83—87 .. 439 ss. 89—91 .. 439 ss. 92—97 .. 440 s. 98 .. 412 440 ss 99, 100 .. 440 s. 101.. 432 ,440 ss. 102—104 441 ss 105—112 442 ss. 114, 115, 117 442 ss. 118—132 443 ss 133—141 444 s 138 432 ss 142—153 445 ss. 154—160 446 ss. 160—163 447 ss. 164—168 448 s. 165 . . 432 448 ss. 170—174 448 ss. 175—188 449 ss. 194,185.. 449 ss. 196—212 450 U-. 108 . , , , 796 i:. 112 (Charitable Trusts Act) 58, 1001 26 & 27 V. u. 92 . ■ 942 0. 106, s. 1 , 57 c. 118, s. 8 . 415 c. 120 , , , 175 27 & 28 V. c. 13, ss. 1-4 67 Table of Statutes cited. cxix PAOE PAOE 27 & 28 V. e. 43, s. 19 .. 79 31 & 32 V. c. 40, SS. 3, 4 .. 461 c. 45 .. 487 ss. 5-8, 12 462 K. 1 .. 488, 489 ss. 23—35 . . 987 ci. 2 .. 489 c. 44, ss. 1, 2, 3.. 67 s. 3 .. 488 c. 54, ss. 1-4 .. 470 c. 97 .. 1009 SS.5— 7 .. 471 c. 112.. 465, 469, 470, .;. 116, ». 1 .. 718 475,691,695 32 8; 33 V. i;. 46 .. 31,35,281 s.l .. 467, 663 SS. 1, 2 29, 243, ss. 2—5 .. 468 245 ss. 6, 7 .. 469 c. 71 .. 1057,1150 s. 56 9 (Bkcy. Act, u. 114 .. 208, 1050 1869) s. 4 79, s. 60 .. 899 477, 936 c. 120 .. .. 942 s. 6 (sub-ss. 28 & 29 V. c. 72 .. 1180 1, 2) 896 c. 78 . . .. 1050 s. 13 .. 743 s. 3 .. 421 s. 15 79,477,578 c. 86, ss. 1, 2 .. 710 ». 15(sub.l) 883, ss. 3—6 .. 711 906 u. 99 .. 1039 (sub.3) 509, t. 104, s. 48 .. 1049 774 s. 57 .. 236 (sub.4) 766 29 & 30 V c. 32, s. 1 .. 390 (sub.5) 373, c. 57, ss. 2, 4 .. 57 644, 649 c. 96, s. 4 .. 645 s. 18 .. 1010 c. 122 . . .. 177 s. 22 .. 477 30 & 31 V u. 6 .. 996 s. 23 417, 509 c. 20 .. 177 s. 24 . . 509 c. 47, s. 2 .. 1050 5. 25 199, 477 c. 48, s. 2 .. 990 s.25(sub.5) 766 ss. 3, 4 .. 966 s.25(sub.6,7)936 ss. 5—8 .. 967 s. 31 437, 613, s. 7 .. 990 905, 1045 c. 69 995,1326 s. 37 745, 746 s. 2 .. 1325 s. 39 .. 441 c. 71 .. 177 s. 40 744, 747, c. 131 (Joint St. 906 Co.'s Am. Act) ». 50 .. 747 s. 4 .. 409 s. 83(sub.8) 695 s. 5 .. 436 s. 91 274, 606 ss. 7, 8 .. 409 6.92 274,275,646 s. 12 .. 397 s. 95 .. 1048 s. 23 .. 397 s. 100 .. 742 ss. 24, 25 .. 407 s. 104 .. 745 ss.26,27 -36 407, s. 105 .. 744 411 ss. 106— 108 1010 s. 37 424, 425 s. Ill .. 79 s. 38 .. 394 s. 117 .. 911 s. 39 .. 418 ss. 125, 126 501 ss. 40—45 , . 434 u. 93 .. .. 1250 u. 132, s. 1 .. 897 u. 107 .. .. 177 s. 2 .. 898 u. 110,=. 12 .. 1001 c. 142, s. 9 .. 1039 33 & 34 V. t. 14 103, 485, 860 c. 144, ss. 1, 3 .. 79 c. 20, s. 4 .. 421 31 & 32 V . c. 4 . . .. 655 c. 23 (Convict's ss. 1, 2 629, 932 Property Act)170,171, S.3 629, 933 172 Table of Statutes eited. PAGE PAGE 33 & 34 V. i;. 28, s. 16 6.34 33 & 34 V. c. 93, s. 8 322, 342, 344 c. 34', ss. 1,2,3 .. 51 s. 9 342, 344 c. 35, ss. 1,2 .. 24 s. 10 342, 343 ss. 3, 4, 5 . . 25 s. 11 343,381 ss. 6,7 .. 26 s. 12 315, 343, >:. 56 208 381, 384 ^. 93 (Married s. 13— 17.. 343 Women's Pro- c. 97, s, 74 [3).. 1064 perty Act, 1870) 388 c. 104, s. 1 .. 446 ss. 1,2, 3. 340, 344 ss. 2 —4 447 ss. 4, 5 341 ,344 34 & 35 V. u. 27, ss. 1, 2 .. 901 s. 6 342 344 35&36V. c. 24 Add. 58 s. 7 324,326,342, c. 58 Add. 79 344, 1248 36 V. c. 12 .. Add. 300 ( cxxi ) ADDENDA ET CORRIGENDA. Tlie references are generally to a paragraph or some line of it. Part of a paragraph, if at the top or iottom of a page, is recJioned as a paragraph. When 7io paragraph is referred to, the line is counted from the top or iottom of a page. Accumulations. PAGE 4, end of par. Z—for " 2 Sim." read " 1 Sim." 9, last line of par. 5 -before " 11,011." read " 1." Annuities and Rent-charges. 13, par. 2 — For Life or Perpetual^ After " Kerr v. Middlesex Hos- pital" add " Hicks v. Ross, L. E., 14 Eq. 141." 14, par. 1 — after " Stokes y. Heron" add " Bent v. Oullen, L. E., 6 Ch. 235." „ line 3— /Of " Ch. 85" read " Ch. 45." 16, line 11 from bottom— for " 536" read " 556." 17, par. 2—PayaMe out of Corpus or Income.'] After " Clifford v. Arundell" add " Booth v. Coulton, L. E., 5 Ch. 684." Appoetionment. 23, par. 5- for "Chilom" read "Clulofc." 24, par. 2 — to " St. Auiyn v. St. Auhyn" add " Donaldson v. Donaldson, L. E., 10 Eq. 635." 26, after par. 1 — Act of li&Q—" Periodical Payment."] "A share of the profits of a private trading company periodically declared and payable is not within the act. Jo7ies t. Ogle, L. E., 8 Ch. 192." after par. 4 — Effect on Prior Instruments^ " It must be observed, however, that in Jones v. Ogle, sup. (on a will), Lord Selbome, L. C, appears to have been strongly of opinion, that the words of a particular gift must be construed generally according to the meaning of the words at the period the mill mas made. lb. p. 195." W. i cxxii Addenda et Corrigenda. FAGE 26, after par. 4 — Change of Interest^ "Where there is a direction to accumulate income until the marriage of a person, and then to settle, there is an apportionment up to the time of the marriage. The rule is the same under the acts of W. 4 and Victoria. Cline V. dim, L. E., 7 Ch. 433." „ line 10 of par. Z—for " 1 B. & Al." reaci « 5 B. & Al." Assets. 29, line 5 — after " debts" read " whether simple contract or specialty." 31, par. Z—for " c. 45" read " c. 46." 33, last line — Order of Lialility of Assets to Behts— Lands devised for Payment of Behts.'] After " Phillips v. Parry." " Where there is a devise of all the testator's property for payment of debts, and afterwards a specific deyise of land, other land being suffered to descend, the descended land is not liable in exoneration of the specifically-devised land, but both contribute rateably. Stead v. Hardaher, L. R., 15 Eq. 176. See Fisher v. Fisher, 2 Ke. 610; Wood V. Ordish, 3 Sm. & G. 125; Jiuves v. Byves, L. K., 11 Eq. 639." 34, par. 2— after "Sensman v. Fryer and Collins v. Lewis." " In Bngdale V. Bvgdale, L. E., 14 Eq. 234 also, Malins, V.-C, declined to follow Hensman y. Fryer." 35, line 13 of par. 2-for " Satt" read " Salt." 36, line 1— Administration of Assets— Priority of Judgment— 2,2 ^ 33 Vict. c. 46.] After " Jennings v. Rigiy." " A judgment obtained against the personal representatives of a debtor, although not registered, has priority over debts of other creditors, notwith- standing the 32 & 33 Vict. c. 46. Williams v. Williams, L. E., 16 Eq. 270." 37, lines 6, 7 of par. H—for " Sproute" read " Svroule," and for " 180" read " 189." Chabitt and- Moetmain. 39, line Z-for " s. 14" read "c. 14." 42, line 12 of par. 2— for " 300" read "309." „ line 4 of par. i—for " 316" read " 616." „ last par.— Oifts for Private Purposes— Uneertai nty.'] After " Hoare V. Osborne" add " Sunter v. Bullock, L. E., 14 Eq. 45." 43, end of par. \- Certainty of Bequest.'] To " aibson v. Coleman" add "Alohin's Trusts, Re, L. E., 14 Eq. 230." 49,line 13 of par. I— Mortmain Act— Exemptions.']— Aitex word "acts" add " Nethersole v. Sch.for Blind, L. E., 11 Eq. 1." „ line 12 of par. 2— for " 140" read " 149." 62, par. 2— Option or Bisaretion of Trustees.] After "Me Beaumont." " A bequest including impure personalty, to trustees to divide among Addenda et Corrigenda. cxxili PAGE such charities in England, as they in their discretion should think proper, is valid, being equivalent to a gift to charities exempt from the Mortmain Act. Lewis v. Allenhy, L. K., 10 Eq. 668. See 'n'ilkinsoti V. Barler, L. R., 14 Eq. 96." 52, line 2 from bottom — Sequest in aid of JUrecting or Endowing a Church.] To "Edrvards v. Hall" add " Sinnett v. Herbert, L. R., 12 Eq. 201." 63, line 3— /or " 2 H. L. C." read " 6 H. L. C." „ last line— Jfortmain— Gf-iftsfor Future Purposes."] After "Came v Long." " But when the gift is valid within the Mortmain Act, and is for charitable purposes, the question of remoteness does not, or can only rarely arise. Thus, a gift in aid of the erecting and endow- ing & future church is good. Sinnett v. Herbert, L. R., 7 Ch. 232. So a gift, as soon as land should be given for almshouses, to erect them. Chamberlayne v. JBrochett, L. E., 8 Ch. 206." „ last line — Non-charitable Gift — Perpetuity.'] To "Came y. Long" add " Cocks v. Manners, L. R., 12 Eq. 574." „ par. 2 — Gift after uncertain Gift — Perpetuity.] To "Fish r. Att.- Gcn." add " Hunter v. Bulloch, L. R., 14 Eq. 45. In the last cited case the point as to remoteness appears not to have been raised. See Tliompson v. Shakspeare, and Came v. Long, Com- pendium, end of p. 53." 54, end of par. 2— Add " See Norris v. Frazer, L. R., 15 Eq. 318." 55, end of par. 1 — Marshalling^ " See and comp. Wigg v. Nicholl, 14 Eq. 92." 58, lines 1 and 20-for " 194" read " 124." „ end of Ch. 3—" See 35 & 36 Vict. c. 24." COMPEOMISES AND EAMILT AeEANGEMENTS. 60, last line— /or " 2 De G. & Sm." read " 2 D., J. & S." 61^ line 8-/or "373" read "783." CONTKACTS. 66, line 6 from bottom— /or " (Co. Litt. 26 a)" read " Com. Dig. Eait (D) 1." 68, last line of par. 2— for " 426" read " 436." 69, line 3— for " Perdage" read " Pordage." 74, par. 2 — By Corporation — Not under Seal— Part Performanoe — Aciiuiescence.] After " F¥end v. Dennett." " But a non-trading corporation may be bound by part performance and acquiescence. CroohT. Corporation of Seaford,'L.'R., 6 Ch. 551; comp. and cons. Kirh v. Bromley Union, Compendium, 955; Orampton v. Varna JR. Co., L. R., 7 Ch. 562." „ last line — after " cannot," add " at law, although it may sometimes in equity, in effect." i2 cxxiv Addenda et Corrigenda. 75, par. l—Agreement collateral to a Contract.'] After " Lindley v. Laeoy," add " Morgan v. Griffith, L. R., 6 Ex. 70." 77 line 2 of par. 3—" Bankruptcy Act, 1869." " The corresponding acts for Ireland are 20 & 21 Vict. c. 60, and 35 & 36 Vict. c. 58." „ lines 10, 11 of par. 3— for " Brymer v. Thames, 4'c. M. Co." read " Tliames, S'c. Co. t. Brymer:' 82, line 3 from bottom— Champerty— Maintenance^ To " Sprye y. Porter," add " Hutley v. Hutley, L. R., 8 Q. B. 112." 8i, last line— for " 602" read " 60." 86, end of par. S— Certainty— Sufficiency within Statute of Frauds.] Add " See Nesham, v. Selby, L. R., 13 Eq. 191." „ lines 4, 5 of par. 3— for " Plummens" read " Summens." 87, line &—" Forrer T. Nash" is reported " 35 BeaT. 167." 91, after par. 2 — Specific Performance — Misconception of Effect.'] " And an agreement for a lease for seven or fourteen years, which gives the option to the lessee only (Compendium, ilG) will be specifically executed against the lessor, although the latter under- stood that it was to be at his own option only. Powell v. Smith, L. R., 14 Eq. 85." 93, Une 7— for " 19 L. J." read " 18 L. J." CONVEESION. 100, line &—for " 45" read " 12." 102, line 7 from bottom— /»)• "22 Bea. 198" read " 18 Bea. 596." 103, par. 5 — Aliens — Naturalization Act.] After " 33 & 34 Vict. c. 14, s. 1." " The act is not retrospective, and the court will enforce in favour of the crown a trust of land for an alien created prior to the act. Sharp v. St. Sauveur, L. R., 7 Ch. 343." „ par. 6— for " Geo. 4" read " Geo. 3." 108, line 2 of par. 2— Election — Appearing by Will.] After " Har court v. Seymour" add " Sharp v. St. Sauveur, L. R., 7 Ch. 343." ' COPYEIGHT. 119, end of par. 1 — " Joint AutJwrship" of a Dramatic Piece.] Add " Levy v. Mutley, L. R., 6 C. P. 523." „ par. 2—Map—Megistrationof—5 ^- 6 Vict. c. 45, ss. 2, 24.] After " (s. 24) " " the provision as to registration in s. 24 applies to maps. Stannard v. Lee, L. E., 6 Ch. 346." 121, line 6 from bottom— ire what may subsist — Cartoons— Engravings.] After " Com v. Laiid, l)0. Journal Co." " Copyright exists in cartoons or engravings in periodical works, those of Punch for instance. Bradbury v. Hotten, L. E., 8 Ex. 1." „ line 11 from bottom— after " Ingram v. Stiff." " There is no copyright in a descriptive advertisement, illustrated or otherwise, which anyone may sell. Cobbett v. Woodward, L. E., 14 Eq. 407. In Addenda et Corrigenda. cxxv Macli V. Fetter, L. R., 14 Eq. 431, it was held, that the propiietor of a book called ' The Birthday Scripture Text Book,' was en- titled to an injunction against the publication of a, work called ' The Children's Birthday Scripture Text Book.' " Donatio Mortis Catjsa. 128, lines 5 and G from bottom — Delivery of Clieque.'] After " Bereitt v. Kaye." " The delivery of the donor's pass book with the cheque will not make the gift of the latter a valid donatio mortis cmisd, unless it be presented before the donor's death. JSeak v. Beah, L. K., 13 Eq. 489." 129, lines 3 and 4 from bottom of par. Z—for " M. & M." read " M. &W." Easements. 133, line 25— for " 35" read " 355." 135, line 8— /or " 699" read " 999." " Suffield v. Brown" is also reported " 4 D., J. & S. 485 ; cons, the observations in Watts v. Kelson, L. K., 6 Ch. 166." 139, last Une of par. i-for " 537" read " 557." 141, line 9 of par. 2— for " 6 Q. B." read " 5 Q. B." 142, par. 3 — Prescription — Light — Tfnity of Possession.'] After " Bar- tidge v. Warwick." "And where the owner of a house lets it, and his occupying tenant is also the occupier of the land over which the right would extend, such unity of possession or occupation prevents the prescriptive right being gained. Ladyman v. Grave, L. R, 6 Ch. 763." „ par. 3 — after " Simper v. Foley" add " see also Ladyman v. Grave, sup." 145, top line— /oj- " sect. 2" read ".sect. 3." 146, line 5 from hottom— Proscription Act — LigJit.'] To " Yates v. Jack" add " Xelli v. Pearson, L. R., 6 Ch. 809. The right of the owner is the same, whether the obstruction be lateral or not. B).; see Staight v. Burn,7ii. R., 5 Ch. 163; Beadel v. Perry, L. R., 3 Eq. 465." 147, line 5 from bottom of par. 3— for "H. & N." read " H. & M." 148, line '2— for " 586" read " 58 b." 149 line 2;— and line 18 from bottom— Tl a fe?- — Underground Stream — Blowing in a defined Channel^ To " Bodgldnson v. Bnnor and Chasemore v. Richards" add " Grand Junction Canal Co. V. Shugar, L. R., 6 Ch. 483." 150, end of par. 3 — Easement to have Water diverted.] " As to a right to have water diverted so as not to flow on land, see Mason v. Shrewsh and Beref. U. Co., L. R., 6 Q. B. 579." cxxvi Addenda ct Corrigenda. PAGE 151, line 4 — Water— Natural and Artificial-Stream— R%panan Owner. \ To " Ivimey T. Stacker " add " Solker t. Poritt, L. E., 8 Ex. 107." 152, line 2 from bottom of par. 2— for " 3 H. & N." read " 4 H. & N." „ last line— /or " 15 Q. B." read " 12 Q. B." 155, last line — In respect of Kuisances.'] After "landowners." "A companj or other authority acting professedly under parlia- mentary powers, and in so acting committing a nuisance, pro- ductive of private inj ury, must show that they are acting within their powers, and are liable if they are not. domes v. Staff. Pott. Waterm. Co., L. K., 8 Ch. 125." Election. 158, par. 2 — Tegtator mith Partial Interest, disposing of tlie WJiole.'] To " Grissell v. Sminlioe," add " Wilkinson v. Dent, L. R,, 6 Ch. 339." )) » for " Sudiury " read " Padhury." 161, par. ^—Heir taking Lands in Scotland.'] After " Brodie v. Barry." " A testator devised all the residue of his real estate, situate in any part of the United Kingdom or elsewhere. He had property in Scotland as well as England. The will did not operate in the Scotch estate. It was held, that the heir taking it was put to his election. Orrell v. Orrell, L. R., 6 Ch. 303." Escheat and Eoefeituee. 170, line 7 from bottom of par. 2— for " 8 Ves." read " 6 Ves." Estates. 175, par. 5— far " Bennett " read " Rennell." 176, par. 1— after " 2 Bos. & P. read " N. E." 177, end of par. 3— Dignities, Descent of— in Tail.] " The invariable pre- sumption of law is, that a peerage descends to heirs male, not heirs general, but it may be rebutted by authoritative evidence to the contrary. Herries Peerage, L. E., H. L,, 2 Sc. App. 258." 181, line 12— for " 509 " read " 409." 196, end of par. 1— Protector.]— After " (s. 32.)" " When two persons are appointed protectors, on the death of one the office survives to the other. Bell v. Holthy, L. R., 15 Eq. 178." 197 line 3 from bottom of par. 2— for " Michelo " read " WhicJielo." 200, line 4 of par. 3— for " 206" read " 83," and for " 414 " read " 174." 201, line 8 from bottom of par. 2— for " B. & C." read •' B. C. C." 204, line 13 of par. 2— for " Howard" read " Seward." „ lines 13 and 14 from the bottom— To "Doe v. Eli-ey" add "See, however. Compendium, pp. 1298, 1299, where the cases on the subject are collected." 215,—" Upperton v. JVickolson " is reported on appeal, " 6 Ch. 436." Addenda ct Corrigenda. cxxvii PAGE 221, lino 3 from top— /»»• " 1 " B. C. C. read " 2." 232, line 5 from bottom of par. Z—for " 2 " Ed. read, " 1 " Ed. 223, line 6 from bottom of par. 3— for " M & L." read " M. & K." 224, par. 2 — lienewaile Leaseholds — To wJwse ienefit Henemal enures.'] To " Hardman v. Johnson" add " Trumjier v. Tr^trnper, L. R., 14 Eq. 299." 225, par. 2 — Satisfied Term.'] " Boe v. Jones is approved and followed in Anderson v. Pignet, L. R., 8 Ch. 180. In this case Sir W. M. James observed that a term does not become satisfied within the meaning of the Act, except the beneficial interest in the whole charge secured by the term, and the beneficial interest in the whole estate, are united and merged in one person. 2b. p. 189." 226, line B—for "26" read "27." 229, par. 2 — " Harrington v. Harrington was affirmed by the House of Lords, L. R., 5 H. L. C. 87. Their Lordships, however, appear not to have been qnite unanimous as to the grounds of their judgments." EXECUTOBS AND AdMINISTBATOES. 235, line 6, par Z—for " 1 Taun. 747" read " 7 Tann. 147." 236, line 5— for " 718" read " 118," and line 8, for " 286" read " 28 b." 237, line 14— /or " 134" read " 104." 240, par. 1 — Paying Legacy before providing for Pelts.] After " Knatchhull v. Fearnhead," add "Taylor v. Taylor, L. R., 10 Eq. 477." 242, end of par. \—Kotiee under the 22 ^- 23 r%ct. c. 35, s. 29.] "The notice must be given in the London Gazette, and generally an advertisement has also been required in The Times. Wood v. Weightman, L. E., 13 Eq. 434." 244, line 1-for " Case 1 Tal." read " Ca. t. Tal." 246, line 4 from bottom of par. 1—for " 10" read •' 9." 252, line 3 from bottom of par. 1—for " 483" read " 843." 254, par. 3 — Power to mortgage.] After " Seott v. Tyler." " An executor is not precluded from mortgaging to a building society. Criiikshank v. Pvfjin, L. R., 13 Eq. 555. In this case the testator himself had borrowed money from a building society. And the learned Judge {Malins, V.-C.) adverted to this fact in his judgment, ib. p. 562, bnt he does not say that such a circum- stance is necessary to give validity to the mortgage by the executor." 257, line 5— after " s. 30," add " see 23 & 2t Vict. c. 38, s. 9." 258, line 3 from bottom— /(>?■ " 175" read " 575," and line i from bottom, for " 495" read " 505." cxxviii Addenda et Corrigenda. PAGE 262, line 11— for '• 1 T. E." mad " T. & R." 263, line 4 of par. 2— for " WaWns r. Thome" read " Thorne v. WatMns." 264,- line 3 of par. i—for " 530" read "286." 266, line 8 from bottom— after " 317," add " (n)." Feaudtjlent and Voluntaby Conveyances and Settlements. 270, line 5 of par. i—for " 606" read " 60 a." 272, end of par. 4i—I!videnoe of Intent to delay Creditors^ After " Thompson v. Wehster," add " Kent y. Miley, L. E., 14 Eq. 190." ,, „ •' Spirett V. Willows" ia also reported, " 3 D., J. & S. 293." 273, par. 1 — In Contemplation of state of things which might result in Sanhruptcy.'] To " freeman v. Pope " add " Machay v. Douglas, L. R., 14 Eq. 106." „ end of par. 1 — Belts incurred after Settlement — Onus of proving Solvency. ~\ " See Crossley t. IRworthy, L. E., 12 Eq. 158, and Cornish t. Clarh, L. E., 14 Eq. 184." 275, end of par. 1. — Conveyance of mlwle Property — Banhrvptoy.'] " The law that the couTeyance of a man's whole property to secure a past debt, whether he be a trader or non-trader, is an act of bank- ruptcy, has not been altered by the Act of 1869. Re Wood, L. E., 7 Ch. 302. See Ex parte Harnher, ib. 214." 276, line 9 from bottom—To "Smith y. Garland" add "ClarJie y. Willott, L. R., 7 Ex. 813." 279, end of Chap. 3 — Consideration to swpport.'\ "A conyeyance to a trustee in trust to pay the debts of the grantor, although it may be Yoidable as regards him, will nevertheless entitle the assignee to take proceedings against persons in possession of the property which is assigned. G-legg y. Rees, L. E., 7 Ch. 71." 284, end of par. ^—Add " See Re Bellasis' Trust, L. E., 12 Eq. 218." 290, par. 2 — XInduc Influence — Zac/tes.] After " Koghton y. Hoghton " add " Turner v. Collins, L. E., 7 Ch. 329." 291, par. 2 — Undue Influence— Ladies.'] After " Proctor y. Roiinson" add " Turner y. Collins, L. R., 7 Ch. 829." „ line 4 of par. 3— for " Dr." read " De G." 292, par. 1— Power of. Revocation.] " ToJier v. Toker " is also reported on appeal, " 3 D., J. & S. 487." " A power of revocation is not essential to the validity of a settlement. Each case must depend upon its own circumstances. Phillips V. MuUings, L. E., 7 Ch. 244." " The absence of such a power, and the fact that the attention of the settlor was not called to that absence, do not make a volun- tary settlement invalid, they are merely circmnstances to be eon- Addenda et Corrigenda. cxxix sidered in deciding on tlio validity of a voluntary sottlemont. Sail V. Hall, L. E., 8 Ch. 430. In this case the trusts were for the benefit of the settlor's children, not merely for her next of kin. See Hensliall v. Fercday, 8 W. N. 77." Guardian and Waed— Paeent and Child. 296, par. 2 — Religions Education of Cldld.~\ To " Re Newherry " add " HanTtsworth v. HamJisnorth, L. K., 6 Ch. 539. Sec Stourton V. Stourton, 8 D.,M. & G. 760 ; Austin v. Austin, Si Bea. 257; 34 L. J., Ch. 499." 300, top of page—" The 2 & 3 Vict. c. 54, is repealed by the 36 Vict. c. 12, s. 3 (24th April, 1873), which enacts, that the Court of Chancery may order that the mother may have access to and the custody of an infant not exceeding sixteen (s. 1)." " Agreements in separation deeds are not to be void, merely because they provide for the mother having the custody and con- trol of the infants. But the court is not to give effect to sucji agreements, if not for the benefit of the infants (s. 2)." Husband and Wife. 308, par. 2—" Att.-Gen. v. Read is now reported L. E., 12 Eq. 38, and Att.-Gen. v. Clements, ib. 32." 312, line 8— after "the marriage " add "unless settled." „ line 5 of par. 2— for "King v. Cotton" read " Cotton v. King," and dele "n." 314, line 9 of par. S—for " 331" read " 381." 329, last line of par. 1— after " Pen-ins" add " L. E." 350, line 1 of par. 2-for " Watts " read " Walls." 352, line 1— after " Lifford " add " Amb. 7; S. C, nom. Hill v. Adams." 356, line 8 from bottom— /or " Morgan " read " Clifford." 358, line 8— after " Vin. Ah." add " 181." 364, par. 3 — Eqriity to a Settlement — Wife n-ell provided for.~i To " Spicer v. Sj>icer" add " Giacometti v. Prodgers, L. E., 8 Ch 338." „ ,, For " Coohe v. Williams" read " Williams v. Coolie." 373, line 10 of par. 2— for "292" read "Zll." 374 — Separate Use.'] " With reference to some of the cases referred to in this page, and which turn upon the effect of the word " sole," see now Massey v. Bomen, L. E., 4 H. L. C. 288." 375, line 13 of par. 2— for "674" read " 174." 376, par. 2— Gift ly Htishand to Wife—Ecidence of] To " Hoyes v. Kindersley " add " Lloyd v Pughe, L. E., 8 Ch. 88." „ line 5 of par. i—for " D. & ,J." read " D., F. & J." cxxx Addenda et Corrigenda. PAGE 378, par. 2 — Separate Tfse — Wife's Pomer of Disposition^ To "Taylor V. Meads " add " Pride t. Suhb, L. R., 7 Ch. 64." 385, line i — Separation Deeds — Covenant not to talie Proeeedings.l To " Wilson V. Wilson " add " Flower v. Flower, 20 W. K. 231." m,\v!ye,^— Separation Agreements — Custody of Children.'] After " Vansittart v. Vansittart." " But an agreement that the chil- dren should remain at such school as the father, with the consent of the mother, should direct, and should pass their holidays at such places as trustees should, haying regard to the wishes of hoth parents, direct, is valid. JSamilton v. Hector, L. R., 6 Ch. 701." » " And see now as to such agreements, 36 Vict. t. 12, s. 2, ante. Add. 300." Joint Stock Companies. 399, par/3 — Notice of Allotment.'] After "Pellatt's case" add "Adams' case, L. R., 13 Eq. 474. In which case, however, no notice of the allotment was given ; comp. the cases as to this, cited in page 399 of the Compendium." „ line 5 from bottom — Posting Letter of Allotment— Notice— Wrong Address given iy Applicant.] After "-Z?r. Tel. Co. v. Colson." " If the applicant gives a wrong address, but a letter of allotment is duly posted to him to that address hut is not received, the mis- carriage being the fault of the applicant, the contract would seem to be complete from the time of the posting of the letter. See Tomnsend's case, L. R., 13 Eq. 148 ; Adams' case, L. R., 13 Eq. 474; Harris' case, L. R., 7 Ch. 587; Wall's case, L. R.f 15 Eq. 18." 400, line 10 — Application for Shares — Nominal Applicant — Liaiility of real Applicant.] After " Levita's case." " The person who is really the applicant for shares is liable in respect of them, although he may have induced the actual applicant to sign the form of application for them. Pugh and Sharman's case, L. R., 13 Eq. 566." 401, end of par. 1 — Agreement to place SJiares.] " A person wbo agrees to place shares does not thereby agree to take them in default of procuring others to do so, and is not liable as a contributory. Gorissen's case, 8 W. N. 77." „ par. 2— Conditional Application for Shares^ To" Simpson's case " add " Wood's case, L. R., 15 Eq. 236 ; cons. Perrett's case, infra." „ par, i— Laches ly Allottee.] After " Crawley's case" add "and an allottee may lose his right to relief by delay and acquiescence. Perrett's case, L. R., 15 Eq. 250." 402, Une 8— for " 13 " read " 46." „ end of par. 2— Qualification— Shares of Directors— Other Shares.] After " Me Disderi." " A mistake by a director between shares necessary for and allotted to him as his qualification as a director, and other shares applied for by and allotted to him, he conceiving that they were the same shares, will not relieve him from liability in respect of the qualification and other shares. Fowler's case, L, R., 14 Eq. 316." Addenda et Corrigenda. cxxxi PAGE ^ 402, par. 4— After " Weston's case, L. R., 5 Ch. 614," add " East Gl R. Co. V. Bartlwlomew, L. R., 3 Ex. 16 ; Eustace v. I)ul). Trunk B. Co., L. R., 6 Eq. 182 ; Mollwraith v. Dui. Trunk It. Co., L. R., 7 Ch. 134." end of par. i—Serij} Shares.'] Add " BIcEreen v. West London Wharves, J'c. Co., L. R., 6 Ch. 655." 405, line 6 - after " River Co." add " L. R." „ after par. 2 — Misrepresentation hy Birectors in Prospectus^ " In a prospectus the directors are bound to disclose every material fact, and will be responsible although they may be acting bond fide in concealing a fact. But a person taking shares on the faith of the prospectus must come promptly for relief on the ground of misrepresentation. ReeJi v. Gurney, L. R., 13 Eq. 79." „ line 9 of par. 3— after " Webster's case " add " L. R." 406, end of Chap. 1 — Misrepresentation in Prospectus— Cancellation of Shares.'} " If directors are aware of a misrepresentation in the prospectus unknown to a shareholder, but upon some other ground he requires the directors to cancel his shares, which they do, this is effectual, and relieves the shareholder from all further liability. Wright's case, L. R., 7 Ch. 55." 407, line 6— to " Stace and Worth's case" add " Fothergill's case, L. R., 8 Ch. 270; Sparges' case, ib. 407; Cleland's case, L. K., 14 Eq. 387." 408, line 6— /or " Briggs " read " Buggs." „ After Buggs' ease — Liability of Trustee — Indemnity by Cestui que Trust.'] " The trustee, however, is entitled to be indemnified by his cestui que trust. Hemming v. Maddich, L. R., 7 Ch. 395." „ line 3 of par. 3 — Rectification of Register — Surrender of Shares.] After " ss. 35, 36," add " London Suburban Bank, Re, L. R., 15 Eq. 274." 409, end of sect. 1 — Shares— Numbering — Informality.] "A mere in- formality in respect of the numbering of shares is immaterial. Ind's case, L. R., 7 Ch. 485." 410, last line— Biscretionary Power of Birectors to reject Transfer.] To " Bermingham v, Sheridan" add " Ex parte Penney, L. R., 8 Ch. 446." 431, line 8— for " Strong" read " Stray." „ last par. — after " Whitehead v. Izod" Custom, of Stock Exchange- Contract between 'Vendor and Ultvmate Purcliaser.] "The ultimate purchaser of shares who (through his brokers) has accepted a transfer of them, must indemnify the vendor against subsequent calls, and an action lies against him for not doing so. Bonring v. Shepherd, L. R., 6 Q. B. 309." 412, par. 1 — after " Maxted v. Paine," Custom of Stock Exchange — Infant Transferee — Liability of Jobber.] " But the jobber will be liable if he gives the name of an infant transferee, although not aware of his infancy, and although the name was not objected to, within the ten days allowed by the custom of the Stock Ex- cxxxii Addenda et Corrigenda. PAGE change for objecting to a name. Merry r. NielialU, 7 Ch. 733 ; overruling Rennie v. Morris, L. K., 13 Eq. 203. In Merry t. Nickells, all the prior cases on the subject will be found elabo- rately reviewed and commented upon." 412, par. 1—" Oruse v. Paine, aflf. L. E., i Ch. 641." „ 3rd line from bottom — Discretionary Power of Directors to reject Transfer.'] To "Weston's case" add " Ex parte Penney, Jj. E., 8 Ch. 446." 413, par. 3 — after " Weston's case," Transfers to and hy Infants."] " When there is a transfer by A. to an infant, and then one by the latter to an adult, both duly registered, the company cease to have any interest in the voidable character of the intermediate transfers ; and if the company be wonnd up more than a year after the transfer to the infant. A., the transferor to him is not liable as a past member. Ooocli's case, L. E., 8 Ch. 266; see Ex parte Wilson, ib. 45." „ line 3 from bottom— after "Symons' case," Transfer of Shares to Infant — Repudiation.] " As to the general right of an infant to repu- diate shares, see Balier's case, £. E., 7 Ch. 115." 415, last par. — Surrender of Shares — Power of Directors to accept or rescind Contract to tahe Shares.] To " Hall's case " add " Thomas' case, L. E., 13 Eq. 437." „ par. 2 — Transfer shortly before Failure of a Company — Dona fides.] After " Slater's case" add " King's case, L. E., 6 Ch. 196, and Master's case, L. E., 7 Ch. 292." 417, line 7— for " Hochen's" read " Stochen's." „ par. 5— before " (ss. 39, 40)," read " Act of 1862." 420, par. 3 — Mortgage — Registration — Equitable Mortgage.] After " Patent Tile Co." " Equitable mortgages are in general valid, although the formality of registration is not complied with. General Provident, S;c. Co., Re, L. E., 14 Eq. 607. But not where the mortgagee is himself acting in the transaction as the solicitor of the company, creating the mortgage. Re Patent Bread Co., L. E., 7 Ch. 289." 423, par. I— Joint Stock Companies— Lloyds' Bonds.] To " Raslidall V. Ford" add " Beattie v. Ehury {Ld.), L. E., 7 Ch. 777." 424, line 7— for " Linden" read " Lindus." 425, after par. 3 — Amalgamation — Dealing with old Shares after.] " When company A. is amalgamated with and its business trans- ferred^ to company B., shares being exchanged in the latter for those in the former, although company A. has no power to effect the amalgamation, yet, if all its shareholders consent, the trans- action is effectual, company A. will be virtually dissolved, and its shares can no longer be dealt with. Mellish, L. J., diss. Chappell's case, L. E., 6 Ch. 902." „ line 5 of par. 5— Interest of Director in Contracts.] After "Beck V. Eantoronicz" add " Imperial Merc. Cr. Assoc, v Coleman 8 W. N. 97; reversing S. C, 6 Ch. 558." „ line 4 from bottom— /«• " 25 Bea. 586" read " 23 Bea. 646." Addenda et Corrigenda. cxxxiii PAGE 426, pav. 2—" Ovcrend, 4'0. Co. t. Chirney, aS. L. R., 6 H. L. Ca. 480 ; nom. Occrcnd, ^'o. Co. v. Gibb." 427, end of pai-. 1 — Liability of Directors for Misrejtresentations.'] " The liability of a director for misrepresentations does not extend to an erroneous statement as to some matter of law. Mashdall V. Ford, L. R., 2 Eq. 750; Beattie v. Mury {Ld.), L. R., 7 Ch. 777." 429, line 2 of par. i—for " Shrewsbury, SiC. R." read " Nat. Live Stock Investment." „ par. i— Company buying its own Shares.'] After " Zulueta's Claim, L. R., 5 Ch. Hi" add " see lie Marseilles Extension It. Co., L. R., 7 Ch. 161." 430, line 1—for " 257" read '• 657." „ par. 4 — Noi-ation.'] After " lie National, ^'c. Soc." add " In. ^ Lon. Ufe Co., Re, L. R., 7 Ch. 651." 431, end of par. 1 — Amalgamation iiltra Vires.'] When an amalgama- tion is projected, and a shareholder in one of the companies pays for shares in the other, hut the amalgamation is declared ultra vires, he is entitled to a return of what he has paid with interest at 5 per cent. Re Bank of Hindostan, Alison's case, L. R., 15 Eq. 394." „ after par. 4 — Calls in Advance— Payment by Directors in antici- pation — Application offer Fees.] " Directors empowered to re- ceive calls in adrance, cannot pay the amount remaining due on their own shares, and appropriate the money in payment of their fees for which there is no other available fund. Sykes' case, L.R., 13Eq. 255." 432, last line— /or "1" read "2." 434, line 12— read "L. R." before "6 Eq." „ par. 2— Winding np— Petition of Member.] To "Langley Mill, SiC. Co." add "Planet, ^-e. Co., Re, L. R., 14 Eq. 441." „ line 3 from bottom — 'Winding up — Petition of Contributory— 'Wishes of Majority.] To "Anglo-Gr. St. Co." add "Re London Sub- urban Bank, L. R., 6 Ch. 641 ; Re Professional, ^c. Societu, ib. 856." 436, par. 2— Liability of past Members^ After "HelberVs case" add "As to the principles regulating the contribution of past members, see Brett's ease, L. R., 6 Ch. 800 ; Morris' case, L. R., 7 Ch 200 ; and "Webb t. Whiffin, L. R., 5 H. L. C. 711; and as to the liability of a person as past member who has transferred to an infant, who has transferred to an adult, see Gooch's case, L. R., 8 Cb. 266, ante. Add. 413. See also as to the liability of a trans- feree to indemnify his transferor, made liable as a past member, Roberts v. Crowe, L. R., 7 C. P. 629." „ Ime 10 from bottom— /oj' "1860" read "1862." 437, after par. I— Bankruptcy of Shareholder.] " If a shareholder becomes bankrupt, and puts down the company as a creditor, he is released from the debt on obtaining his order of discharge. Ua; parte Marshall, L. R., 7 Ch. 324." Addenda et Corrigenda. PAGE 437, last line — Subscriber to Memorandum of Association — Liability as Shareholder.'] After " De Seville's case" add "Sidney's case, L. E., 13 Eq. 228." 438, line 7 from bottom — Fully paid-up Shares — Liability of Share- holder.] After "Pell's case" add "See and consider Dent's case, L. E., 15 Eq. 407." „ par. 4 — Payment for Shares in Cash.] After "Jones's case." "If the case is subject to the Act of 1867, the shares are to be paid for in cash, unless there is a contract to the contrary filed with the Eegistrar under the Act of 1867, 30 & 31 Vict. c. 131, s. 25. But any bond fide transaction between a company and a share- holder, which, if the company brought an action against him for calls, would support a plea of payment is ' payment in cash' within this section. A. bond fide sale of property to the company, and payment (in effect) by the company in shares, is such a transaction. Spargos' ease, L. E., 8 Ch. 407. See Fothergill's case, lb. 270; Cleland's case, L. E., 14 Eq. 387." 439, par. 2 — Liability of Soripholders.] After "Eustace v. Dub., ^-c. Co., L. E., 6 Eq. 182," add " Mollwraith y. Same, L. E., 7 Ch. 134." 440, last line—Contributories — Winding up— Set-off.] "The case of Brighton Arcade Co. v. Dowling was disapproved of in Blach 4- Co.'s ease, L. R., 8 Ch. 254." 441, end of par. 4 — Winding up — Stat, of Limitations.] To" Wryghte's case" add " General Rolling Stoeh Co., Re, L. E., 7 Ch. 646; see Act of 1862, s. 98." 442, last line of par. 5— for "Mart's" read " Hunt's." 446, end of par. \—add "Pearson's case, L. E., 7 Ch. 309." 447, par. 5—" Southall t. Br. Mut. 4'c. Society" is also reported "L. E., 6 Ch. 614. A clause in an agreement for the amalgamation of two companies, proTiding that part of the purchase-money shall be paid to the directors of the selling company by way of bonus is valid. lb. An unregistered company may register under the act, and thus effect an amalgamation. lb." Joint Tenancy and Tenancy in Common. 452, end of par. 2— Under Wrongful Title] " There may be a wrongful possession by two or more as joint tenants, and the interest of any one acquired by such possession will cease at his death, as in the case of a joint tenancy under a rightful title. Ward v. Ward. L. E., 6 Ch. 789." 454, line 3— for " 245" read " 425." 456, end of par. 2— Tenancy in Common—" Bctn^een."] To " Lashbrook T. Cock" add "Att.-Gen. t. Fletcher, L. E., 13 Eq. 12S." „ line 3 of par. 2— for " 7" read " 1." 457, line 3—" Robertson v. Fraser'" is also reported " L. E., 6 Ch. 696." 460, last line of par. 3-for " 544" read " 554." Addenda et Corrigenda, cxxxv PAGE 4G1, after "(s. 3)," par. 3— Partition— Costs— 31 ■f'32 Viot. c. iO—" Be- quest."} " In i'onng y. Young (L. R., 13 Eq. 175) and France T. France {ii. 173), in which infants only were interested, a bill was filed for a partition, and on the hearing a request made for a sale, which was ordered, and the costs of all parties were declared to be a chai'ge upon their shares in the lands. But in Daiwy v. WietUsbach (L. R., 15 Eq. 269), a sale only was directed, the question as to costs being reserved. „ par. i — Partition — Owner of Moiety requesting Sale.'] " Pemberton T. Barnes" is also reported " L. R., G Ch. 685. In this case it was held, on sect. 4, that it is not a ' good reason to the contrary,' merely that the owners of a moiety object to a sale." 462, after par. 7 — Partition — Sale.} " The bill should pray for a partition as well as a sale. Holland y. Holland, L. R., 13 Eq. 406." Judgments and Deceees. 470, Ime 3 of par. 3— Effect of 21 ^ 28 Vict. c. 112.] After " deliTcred in execution." " In Corh v. Russell (L. K., 13 Eq. 210), llalins, V.-C, stated that, in his opinion, a judgment creditor who had not issued execution had no interest in the land. lb. p. 216." Laudloed ajstd Tenant — Lease. 476, Une 4 of par. 2— after " 2 Y. & C." add " C. C." 478, line 5 from bottom— /»?• " jSumes" read " Haines." 483, line 4— /or " 7 M. & W." read " 9 M. & W." 485, line S—for " 3 Y. & C." read " 2 Y. & C." 490, after"(s. 25)" — Leases and Sales of Settled Estates Act^ " Sect. 25 pro- Tides for the investment in Exchequer bills or consols. In Shaw's Settled Estates, Re (L. R., 14 Eq. 9), Ld. Romilly, M. R., refused to allow of any other investment, although in Cook's Settled Estates (L. R., 12 Eq. 12), this was permitted under the 23 & 24 Vict. c. 38. But in Thorold's Settled Estates (L. R., 14 Eq. 31), Malins, V.-C, declined following Re Shaw's Settled Estates, and allowed an investment in East Indian 4 per Cent. Stock." „ after "(s. 37)"— Spinster marrying after Petition.'] See "MarslialVs Settled Estates, Re, L. R., 15 Eq. 66. As to dispensing with the examination of a married woman, see Re Halliday's Settled Estates, L. R., 12 Eq. 199." 491, line 12 from bottom — Parcels.] After " the subject-matter of the demise should be clearly stated." Add " A map on the lease is as much a part of title as the operative part of the deed. Brown T. 'Wales, L. R., 15 Eq. 142, 147." 492, line 18— /or " Herbert " read " Hebbert :'' line 19, for " 801 " read " 861." 502, line 15— for '• 9 " read " 10," and for " 689 " read " 164." 604, line 5 from bottom— /or " 1 H. & M." read " 2 H. & M." 506, line 9 from bottom— /or " Remington " read " Pennington." and for "356 "read "656:' cxxxvi Addenda et Corrigenda. PAGE 510, par. 2, line 6— for " 9 " read " 11," and for " 932 " read " 702," and line 17— for " 342 " read " 744." 512, end of par. 2— See " Whitmore T. Humphreys, L. Il.,7 C. P. 4." Limitations to Stjits. 515, end of par. I— Add " (s. 1.)" 519, line 1 — Possession svffieient against a mere Trespasser.'] After "lb." "But mere possession (in the case cited for one year ) is sufficient to enable a person to maintain an action against a tres- passer who shows no title whatever. Doe v. Dyehall, M. & M. 346 ; ace. per Cocliburn, C. J., Asher y. Whitloch, L. R., 1 Q. B. 5." 521, line 2 of par. 2 — (s. 7) Express or Birect Trusts.'] After " Doe v. Moeli." " In Drummond t. Sant, 41 L. J., Q. B. 21, the proviso was held to apply to eases of actual direct trust. 524, line 9 of par. 2— for " Jacjuss " read "Jaynes." 525, end of par. 5 — See "Abergavenny (_!!.) v. Brace, Xj. E., 7 Ex. 145." 527, line 3 from bottom— >?■ " 11 " read " 1." 529, after par. 1 — Express Trusts— Mortgage with Trust for Sale.] " A mortgage with trust for, instead of power of sale, is in substance an ordinary mortgage, and does not create an express trust within section 25. Loeldng v. Parker, L. E., 8 Ch. 30. See Loekwood V. Thompson, 2 H. & K 392." „ line 8 of par. "i-for "202" read "204," and line 5— /or "642" read " 592." 530, line 2 from bottom -/»»■ « 271 " read " 57a." 531, after "(s. 26)"— Concealed Frandri To "Petre v. Petre " add " Vane V. Vane, L. E., 8 Ch. 383. A purchaser, although for value, who contracts through an agent who knows of the fraud, is not within the protection of the saving clause at the end of the section, li." „ line 17— After " L. J." read " N. S." 534, last line but one of par. 3— for " Lord " read " Lake." 537, line 4 from bottom— /or " Darus " read " Darcy." „ line 3 from bottom— /or "484 " read "434." 539, line 19— for " 307 " read " 607." 541, last line of par. 4— /or "K. Sc G." read "K. & J." 542, last line of par. 2— /or " Wells " read " WUUams." 546, par. 1 and par. 2—Achiomledgm.ent.] To " Lee v. 'n'ilmot" (par. 1), and Philips f. Philips (par. 2 ), add Mitchell's Claim, L. E , 6 Ch. 822." „ line 1— /or " Llnley " read " Linsell," and line IS— /or " College v. House " read " Colledge v. Horn." Addenda et Corrigenda. cxxxvu Maeeiage Settlements. PAGE 552, line 1 — Form of Agreement — Letters.'] To " Laver y. Fielder " add " Coverdale t. Eastwood, L. R., 15 Eq. 121. Although the letters may be lost, if tlit'ir contents can be proved, the agrce- . ment iviU be enforced. Gilchrist v. Herbert, 20 W. R. 348." 555, line 11 of par. 2— for " Foxley " read " Loxley." 558, end of par. 2 — Coeenant to settle upon the Isstie of the Slarriage.] " Such a covenant is construed as for a strict settlement, and pre- cludes the husband from making charges in favour of the younger children. Ch-ier v. Grier, L. K., 5 H. L. C. 688." o&ii,^ax. 3— Executory or Executed Settlement.'] To " Egertony. E. Brownlon " add " Thompson v. Fisfier, L. E., 10 Eq. 207." 574, line 1 of par. 3— for " Thorpe" read " Sharpe." 575, line 16— /or " 449 " read " 509." 584, line 22 of par. 2— to " Talhot y. Marshfield," add " He Kershaw's Trusts, L. E., 6 Eq. 322." „ par, 2, last line — Advancement — Money to 'be applied for a par- ticular Purpose, which fails.] After " Zaiorie v. Banhes." " AYhere a sum was directed to be applied in the purchase of a commission for A., and in consequence of the abolition of such purchases, it could not be so applied, it was held, that A. was not entitled to the money. B£ 'Ward's Trusts, 7 Ch. 727." 590, line 6 -/or "2" read " 1." „ par. 3— Portions for Children — Power to appoint, according to Kumbers.] " Enapp v. Knapp " is also reported " L. R., 12 Eq. 238. In general, when a particular amount may be appointed, according to the number of children born, the power may be exercised according to the number of such children who were born, though some may be dead at the time of the appoint- ment being made. lb." 60] , par. 2, last line — Ultimate Limitations — Wife — Dissolution of Mar- riage^ To " Sii-ift y. Wenman" add " Fussell v. Dowding, L. k, 14 Eq. 421." 604, line 3— Covenant to settle future-acquired Property.] After " Blythe v. GranHlle." "The cases upon the subject were re- viewed by Wichens, V.-C, in lie Clinton's Trust, L. E., 13 Eq. 295. His Honor described the law upon the subject as being in a very embarrassing state, and the decisions as in fact irreconcil- able. He questioned James v. Durant, 2 Bea. 177, and ob- served that Grafftey v. Humpage, 1 Bea. 46, was only to be followed where the question was specifically the same, but ap- proved of Blythe v. Grand He, 13 Sim. 190, which he followed. See Buller v. Hornby, 20 W. E. 198; lie Pearson, 26 L. T., N. S. 393." 609, line 5 of par. 2— for " French " read " Trench." 618, end of par. 3—" See further as to the power and practice of the Divorce Court, Crisp v. Crisp, 27 L. T., N. S. 428; Bulloch y. Bullock, ib. 247." W. k exxxviii Addenda et Corrigenda. Meegee. PAGE 620, last line of par. Z-for " 303 " read " 302." 622, first line of par. 5— for " he " road " the owner." MOETGAGBS. 628, line 14— /or " 832 " read " 852." aSl—UpdtaHe— Deposit of Seeds.'] Aft&r '• Ede v. Knomles." "But the mere possession of deeds, without evidence of the contract upon which the possession originated, or, at least, of the manner in which that possession originated, so that a contract may be inferred, will not be enough to create an equitable security. Dixon V. Miwkleston, L. K., 8 Ch. 155, 162. See Chapman v. Chapman, 13 Bea. 308." 634, line 2— for " 282 " read " 136." 638, after par. 4 — D]/ Infants.'] " Where an infant (concealing the fact of his infancy) mortgaged his reversionary interest, and afterwards when of age effected a second mortgage to a mortgagee without notice, the latter was held to have the better title. Invian v. Inman, L. R., 15 Eq. 260." G39, last two lines of par. 2 — " Matson t. Dennis " is also reported " 4 D., J. & S. 345. Where both mortgagees are living, the money must be paid to both, or if to one, under a special authority from the other. li." 643, par. 3 — Fixtures.] To " Re Richards" add " Longiottom v. Berry, L. E., 5 Q. B. 123." 646, par. 2— jlK Effects— Bankruptcy.] "Tinder the Bankruptcy Act, 1869, the rule is substantially the same as under the 12 & 13 Vict, c. 106. Where there are past debts, and a present advance, the smallness of the fresh advance, although not necessarily making the assignment an act of bankruptcy, is strong evidence that the advance was made, not to enable the debtor to continue his trade, but to secure the past debt. Ex parte Fisher, L. R., 7 Ch. 636." „ end of par. 5 — " See COMPENDIUM, p. 79, where these sections are more fully stated." 650, line 8 — Notice — Bankruptcy,] To " Re Rawbone" add " Ex parte Caldwell, L. E., 13 Eq. 188." „ par. 1— Policy— Notice after Bankrvpteij giving Priority.] "After Re Wehb, Re Lichener." "These cases were not followed in Stuart T. Cocherell, L. K., 8 Eq. 607, or Re Russell's Policy Trusts, 15 Eq. 26, in which it was held that notice of the mortgage of a policy, after the bankruptcy, by the assignee, was sufficient to give priority over the trustee in bankruptcy, who subsequently gave notice of the bankruptcy." „ par. \— Notice—To Solicitor.] After " Sharpe t. Foy" add " Rol- land V. Hart, L. E., 6 Ch. 678, stated ^osf, Add. 1060." 651, lino 9 — Notice.] To " Somerset v. Cox" add " Addison v. Cox, L. R., 8 Ch. 76. When funds are in a banker's hands for distribution on a particular day, notice given after business hours on the pre- Addenda et Corrigenda. cxxxix PAGE vions day gives no priority over a notice given on the morning of that day, and before the commencement of business. Calisher v. Forles, L. R., 7 Ch. 109." 651, line 13— /or " Harley" read " Harby," and/or " 548" read " 508." 653, lines 8 and 9 — after " In a mortgage of stocl: " add " where the stock is not sold oat, but actually transferred as security." „ par. -3 — Ships — Might of Mortgagee to Earnings.'] After " Collins v. Lamport." " But a mortgagee may exercise his right to the possession and earnings of the ship when he thinks fit so to do. Brown v. Tanner, Jj. R., 3 Ch. 597; Wilson v. Wilson, L. K., 14 Eq. 32." 655, end of par. 1 — Unconscionalle Bargains — Berersion.'] To "Miller v. Cooh" add " Tyler v. Yates, L. R., G Ch. 665; Aylesford {E.) V. Morris, 8 W. N. 52." 660, line 14 of par. S^for " Trueman" read " Freeman." 666, line 12— for " 1088" read " 1044." 667, line 12-/or " 423" read " 243." 670, end of Ch. 7— "In Exparte Harding (L. R., 15 Eq. 223), the question discussed at the end of this chapter was again raised, and Baeon, V.-C, decided in conformity with the law as laid down in Spacli- man v. Miller, 12 C. B., !N. S. 659, stating that his decision in Exparte SomanQj.^., 12 Eq. 600), had been misunderstood. His Honor also referred to Ashton v. Blaclishaw, L. R., 9 Eq. 510. It maybe observed, that the decision in the last case gave rise to no difficulty, only the observations in the judgment. See pp. 516, 517." 672, line 7 of par. 4 — Power of Sale.'\ For " Borne" read " Borne." 681,— "Boyd v. Petrie," reversed " L. K., 7 Ch. 385." „ par. 2 — Foreclosure— Mortgage ivith Trvst for Sale.] To "Sampson V. Pattison" add "LocHng v. ParTier, L. R., 8 Ch. 30. But a mortgage with trust for, instead of power of sale, is in effect an ordinary mortgage, lb., and see Kirkwood v. Thompson, 2 H. & M. 392." „ last line— /«r " 24" read " 124." 682, line 9— /or " Prim." read " Paine." 685, line 16 of par. 2 — Priority — Possession of some of Title Deeds.] To "Boberts v. Croft" add" Dixon v. MueUeston, L. R., 8 Ch. 155." „ last line but one— /or " 61" read " 21." 686, 687, eS8— Priority by Possession of Deeds.] " Hunter v. Walter^' cited in these pages, " aifirmed L. R., 7 Ch. 75." 689, par. 1— Marshalling Securities.] To "Barnes v. Bacster" add "Tnimper v. Trumper, L. R., 14 Eq. 295." „ line 6 from bottom— after the words " by a" add " second." 691, line 4 of par. 2— /or " D. & Sw." read " De G. & Sm." 692, Une 6-/or " H. & N." read " H. & M." 693, line i from bottom of par. 1 — after " Blackstone" add " or Cocherell." A2 cxl Addenda et Corrigenda. PAGE 696, line 2— for " Drew." read " Dm." Ymo 2 — Priority ly Registration — Not mhere Notice.'] After "Majoribanks v. Bovenden." '• Notice by the employment of the same solicitor is sufficient. Holland v. Hart, L. K., 6 Ch. b/a, stated post, A dd. lOCO. Indeed such notice is considered as actual not constructive (iJ.)." 698, line 4 of par. 4— /or " 308" read " 458." line 3 of par. 5— Costs on Redemption.'] After " Harvey t. Tehhutt" and " Tanner v. Heard." "A mortgagee will not be deprived of his costs in a redemption suit, merely because he has by mistake overstated the amount due to him, the matters and accounts being honestly in controversy between him and the mortgagor. Cotterell V. Stratton, L. E., 8 Ch. 295." 701 line 9 of par. 2— Infant JDevisee of Land contracted to le Soldr— Trustee Act.] After "(ss. 3, 7)" add " See Re Lorvry's Will, L. R., 15 Eq. 78." Paetnebship. 706, line 8 of par. 2— for " agent " read " agents." 707, line 5 from bottom -/or " 1 " read " 2." 710, line 2 from bottom of par. 3— for " 1 B." read " 3 B." „ pars. 1 and 3— to " Cox v. Hickman " add " Mollmo v. Court of Wards, L. E., 4 P. C. 419." 722, last line— /or " 887 " read 857." 724, par. 2 — Realty converted into Personalty.] • After " Darlyy t. Barly," add " Waterer v. Waterer, L. E., 15 Eq. 402." 727, par. i— Accounts ietnieen Surviving Partners and Representatives of Deceased Partners — Stat, of Limitations^ " Knox t. Gye," " affirmed L. E., 5 H. L. C. 656." 728, par. 4 — Ariitration Clauses.] To " Scott v. Avery " add " Coolie r. Cooke, L. E., 4 Eq. 77 ; Elliott v. Royal Exchange Assurance Co., L. E., 2 Ex. 237." 734, last line of par. 2 — Partnersliip Accounts^] After "Wilier v. Miller." "But see Knox v. Gye, L. E., 5 H. L. C. 656." 736, end of par. 2 — "As to contracts and the valuation of them as partner- ship assets, see Ambler y. Bolton, L. E., 14 Eq. 427." 737, par. 2— Share of Deceased Partner remaining in the Business — Right to Interest or Profits^ To " Bronm v. De Tastet." " The rule is subject to qualification, according to circumstances. See and cons. Vyse v. Poster, L. E., 8 Ch. 309." 739, par. 3—" Mouflet v. Cole " is also reported, " L. E., 7 Ex. 70, afE. Ex. Ch., 21 W. E. 175, deciding that the distance is to be measured in a straight line as the crow flies." 742, par. 2 — Executors allowing Money to remain in the Partnership Business^ After " Stroud y. Gn-ycr " add " Vyse y. Mister, L. E., 8 Ch. 309." Addenda ct Corrigenda. cxli 716, after par. ^— Bankruptcy- Comrrsioiiof PmiKcrslt'ip Property into Security for Separate Debts.'] "A mortgage or deed by which the partnership property is attempted to be converted into a security for the separate debts of the individnal partners is a fraud on the creditors of the partnership. Ea; parte Siwieball, 7 Ch. 534." „ par. i, last line— /er " Dears." read " Deac." 747, line 2— for " 593 " read " 493." Pbrpetitities. 748, line 10— for " Bun." read " Burr." „ par. 1, line 11— Limitation after Estate Tail.] After "Scarborough T. Saville " add " Heaseman v. Pearsc, L. R,, 7 Ch. 275 ; see Compendium, p. 1336." 749 — Gift to a Class mhich, as to some, might be too remote.] After par. 2 add " Smith v. Smith, L. E., 5 Ch. 342." „ line 9 of par 3— /or " Sawney" read " Tamney." 754, line 19— for " 171" read " 239." „ line 3 of par. 3— for " Dewhurst" read " Deerhurst." POWEKS. 762, end of par. 1 — Power or Absolute Interest.] Add "Pennoch v. Pen- noch, L. E., 18 Eq. 144." 768, line 6 from bottom— /or "6 Sim." read " 16 Sim." „ last Kne— /or " 460" read " 480." 770, line 7— for " 4 M. & W." read " 3 M. & W." 775, par. 2 — To appoint to Cliildren — Appointmentfor Zife,tvith Remain- der as Appointee shall appoint.] After " Morse v. Martin" add " Sla/rh V. Dahyns, L. K., 15 Eq. 307." 777, last line of par. 1— /or " Dr." read " De G." 779, line 6 of par. 2— for " 2" read " 3." 796, line 8—" Sykes v. Slieard" was affirmed " 2 D., J. & S. B^bnt doubted in Jefferys y. Marshall, 19 W. E. 94." 798, end of par. 3— Power of Sale— Administrator.] An administrator durante minore setate may exercise a power of sale given to executors and administrators. Monsell v. Armstrong, L. E., 14 Eq. 423." 800, line 5 of par. 4— (feZo " 1." 805, last line of par. 3— after " Amb. 468" add " and 2 Ed. 239." 808, end of 3rd par. — Execution — Form of Instrument.] " Where there was a power to appoint by any deed or instrument in writing to be signed, sealed and delivered in the presence of two or more credible cxlii Addenda et Corrigenda. PAGE witnesses ; the power was held to be well exercised by an ap- pointment by will, not expressed to be delivered, but stated in the attestation clause to be ' signed, sealed, published and acknow- ledged, and declared to be the last will ' in the presence of the attesting witnesses. Smith v. Adldns, L. R., 14 Eq. 402." 813, par. 2— Execution— Several Appointments.'] After " Sarrold v. Sarrold" add Cuninghame T. Anstruther, L. R., 2 Sc. App. 223." 816, end of par. 5— Defective Execution— Aided in favour of Son."] To " Sneed t. Sneed" add " Kennard t. Eennard, L. R., 8 Ch. 227." 818, par. 3 — Execution — Beference to Power where not necessary.'] After " Sunlohe v. Oell" add " Cuninghame v. Anstruther, L. R., 2 Sc. App. 223." 819, line 1 of par. 4 — after the word " was" read " to be." 820, line 3-/o)- " 58" read " 558." 824, par. 2 — 'Will not executing Power created sutsequent to THH.] After " Stillman t. Weedon" add "comp. Ending's Settlement, »Be, L. R., 14 Eq. 266, in which case it was held that a general residuary bequest in a will did not execute a general power sub- sequently created." 830, line 5 from bottom— /or " ii." read " Sug. Pow." 837, end of par. 5 — Mode of exercising — Power to appoint — Appointment to sell and diHde.] To " Fmvler t. Cohen" add " 'Weih v. Sadler, L. R., 8 Ch. 419." „ end of par. 2 — Appointment to Ohjects and Strangers."] After " Lloyd V. Lloyd" add " Carr y. Atkinson, L. E., 14 Eq. 397; and see Ingram v. Ingram, 2 Atk. 88." 839, end of page — Appointment with unauthorized Condition.] "Under a power to appoint to children, an appointment to trustees, upon such trusts as A., a child, shall, with the consent of the trustees, appoint, with a limitation over in default of appointment by A., is, so far as regards the condition, void, and the limitation over, in default, takes effect. Wehl) y. Sadler, L. E., 14 Eq. 533." 841, line 2 from bottom— /or " Manders" read " Marsden." „ after par. 2 — Fraud on Power — Parent Appointor purchasing Interests of Child.] " A parent cannot negotiate with children, objects of the power, for his own benefit. Releases given in such transactions are void. Cuninghame v. Anstruther, L. R., 2 Sc App. 223." 845, par. 2— G-ift in default— Contingent Appointment.] To " Brown T. Siggs" add " Be Jeffery's Trust, L. E., 14 Eq. 136, and cons. Langslow v. Langslow, 21 Bea. 255 ; Compendium, 844." Satisfaction. 848, end of par. \— Legacy ly Advances:] To " Watson v. TTa?so»" add Re Peacock's Estate, L. R., 14 Eq. 236." Addenda et Corrigenda, cxliii TnusTS. PAGE 861, end of par. i— Alien Cestui i/ue trust— 33 .J- 34 Vict. c. 14.] " The Naturalization Act, 33 & 34 Vict. c. 14, is not retrospective. S/iarp V. St. Sametir, L. R., 7 Ch. 343." 867, par. 2 — G'ift of Anmnty while Mother and Son live together — Death of Son.'\ After " Wilson v. Bell." "Where an annuity was given to the testator's widow (in addition to another provision for her) as long as she and her son should live together, but if they ceased to live together it should cease, it does not determine by the son's death in her lifetime. Sutcliffe v. Richardson, L. R., 13 Eq. 606." 868, line 4 — Trusts for Parent and Children — Absolute Interest in Parent.^ " Mackctt v. Mackett" is reported "L. R., 14 Eq. 49." 870, line 5 of par. 3— /or " 1 K. & J." read " 4 K. & J." 871, par. 5 — Resulting Trust — Conveyance — Consideration not paid.'] " In Haigh v. Kaye, L. R., 7 Ch. 469, there w.as a conveyance by A. to B. purporting to be in consideration of a sum, which, in fact, was not paid. There was nothing in writing to show the transaction, but B. admitted that he gave no consideration, claim- ing, however, the benefit of the Statute of Frauds. It ^vas held, that B. could not retain the estate against A., to whose claim the Statute of Frauds aiiorded no answer." 875, after par. 4 — Purchase in the Name of a Son — Resulting Trust."] "In Stoch V. M'Acoy (L. R., 15 Eq. 55), a father purchased a cottage in the name of his, son. Shortly after the purchase, the father served notice to quit on an occupying tenant, but after- wards allowed her to remain at an increased rent, and during his life received the rents and paid the outgoings ; it was held, although there was evidence of declarations by the father that after his death the cottage was to be the son's, that the purchase was not an advancement ; cons, the authorities cited in the case, and Compendium, uH sup." „ par. 5 — Transfer of Fund into Son's Name— Advancement.] To " Sidmuuth v. Sidmouth" add " Hepworth v. Hepworth, L E 11 Eq. 10." 879, line 8 from bottom— Of the Estate of tlie Trustee.] After " Cii7-tis V. Price" add "Cooper v. Eynooh, L. R., 7 Ch. 398." 881, line 2 of par. Q—for "not" read " also, and were not restricted to." 884, par. i— Receipt of One Trustee only.] —After " Webb v. Ledsum" add " But a person is not discharged by payment to one trustee on his receipt alone, and without the authority of the other. Lee V. Sankey, 15 Eq. 204." „ line 9 of par. i—for " 202, 203," read " 183." 892, end of par. \— Title Deeds— Custody of] After" Dentnny. Dnitun" " It is in the discretion of the court where title docds shall be lodged. Stanford v. Roberts, L. R., G Ch. 3U7." „ last line of par. 2— before " Co. Rep." read " 3." 893, line 5— for " D., F. & S. read " D., F. & J." cxliv Addenda et Corrigenda. 900, par. I— Power to invest — Personal Security— Of Hushand.'] After " Cresswell v. Demell" add "Piclmrd v. Anderson, L. 11., 13 Eq. 608. In this case the trust fund was allowed to remain on the security of the husband's bond.'' par. 5— Trusts— Power to itivest.'] " Budge v. Crummom" reversed " L. R., 7 Ch. 719." line 3 of par. 5— before " i Ch." read " L. K." 904, end of par 2— Breach of Trust — Unautlwrized Expenditure on Trust Property.'} " Where a trustee has spent money on the trust property in an unauthorized way, the rule is to give him at his own expense an inquiry whether the trust estate has been to any aud what extent benefited. Per Sir W. M. James, L. J., Vyse V. Poster, L. E., 8 Ch. 826." „ line 10 of par. S—for " Wilson" read " Wesley." „ line 6 of par. i—for " Boursal" read " Boursot." 907, last line of par. 2— for " 301, 302" read " 251, 252." 911, last line of par. 2— for " J. 255" read " Sm. 73." 918, line 16— for " 63" read " 683." Uses. 924, line 17— for " to make A. take" read " to make B. take." „ after " Lloyd v. Spillett" add " see HaigA v. Xaye, L. K., 7 Ch. 469, stated ante in Add. to p. 871. 928, lines i and 5 of par. i—for " PeacJt t. Lambarde" read " Lambarde V. Peach." Vendoes and Pttechasees. 934, line 8— before " Drn." read " 1." 938, line 2 from bottom of par. i—for " LI. & G. 1, pi. 1," read " LI. & G. t. Plunk. 1." 942, line 5-for " N. S." read " Ch." 951, line 7 of par. i—for " Ex." read " C. P." 952, par. 4 — Statute of Frauds — Agreement ivitMn — Posting Letter.'} " Harris's case, 7 W. N. 116" is reported " L. K., 7 Ch. 587." „ after " Br. 3; Am. Tel. Co." add " v. Colson, and as to the authority of this case cons. Harris's case, sup.; TomnsetuVs case, L, R., 13 Eq. 148; and see the cases Compendium, p. 399, and Add. 399. „ last line of par. i—for " N. S." read " Ch." 955, end of par. 5 — Part Performance.} To " KirJi v. Guardians of Bromley Union" add " Crampton v. Yarna Ball. Co., L. R., 7 Ch. 562." 956, line 16 of par. 3-for " 511" read " 811." Addenda et Corrigenda. cxlv PAGE 95G, last line of par. 2 — before " i Taun." read " see." 958, line 13 of par. 3— for " 367" read " 307." 959, ])ar. 3—" Torrance v. Bolton" is reported " L. R., 8 Ch. 118." 960, last line— for " M. & U." read " Moll." 969, line 7 of par. 3— for " 487" read " 847." 972, line l—A'Ze"N. S." 974, line 1 of par. 3 — " Cordingley v. Cheesiorovgh" is also reported "4 D., r. & J. 379." 979, last line of par. Z—for " N. S." read " Ch." 984, par. 3— for " Edmards v. Drahe" read " Edmonds T. Peahe." 986, line 2 from bottom — Sales hy tJie Court — Under the Settled Estates Act.'] Afterthe word "leases." " A guardian cannot consent to a sale under the Settled Estates Acts, on behalf of a lonatic, only a committee properly appointed, dough's Estate, Re, L. R., 15 Eq. 284, not following Yenner's Settled Estates, L. R., 6 Eq. 249." 988, after par. 1 — Sale hy the Court — Auction. — Sealed Tenders.'] " After an order for sale by auction, it cannot be varied by a sale by tender without the direction of the court. Lee, Ex parte, L. R., 15 Eq. 150." „ last line of par. 4 — after " Estates" read " 32 L. J., Ch. 70 ; S. C, nom. Re Settled Estates Act." 989, line 11— /or " Massey" read " Sussey." 991, line 3-for "36" read " 136." „ end of par. 1—Sale by the Court — Mistake — Opening Biddings.'] " Biddings now can only be opened in cases of fraud. It is no ground for doing so in general, that through the vendor's mistake the sale may have been at an undervalue. Griffiths v. Jones, L. R., 15 Eq. 279." 994, line 2 from bottom— for "491" read "401." 1003, line 5— for " 8" read " 9." 1008, end of par. 4— "Payments and transfers before revocation are valid, see 20 & 21 Vict. c. 77, ss. 77, 78." 1009, par. 7, marg. note— /or "Not evidence of identity" read "Certificates evidence without proof of identity." 1012, line 4 of par. 2—" Re Bai-is's Trusts" is reported " L. R., 8 Eq. 98." „ last line of par. 2— for " 4 Eq." read " 14 Eq." „ end of par. 4—" Marine, ^-o. Co. v. Baviside" is reported " L. R., 5 H. L. C. 624." 1013, par. 4— After " Doe v. Nepean" add " See also the cases, Compen- dium, pp. 1132, 1133." 1014, par. 2 — Presumption— Female past Child-hearing.] " Milner's Estate" reported " nom. Re Milliner's Estate, L.'R., 14 Eq. 245." cxlvi Addenda et Corrigenda. PAGE 1021, line ^-for " liaison" read " Hoison." 1023, line 7 from bottom— /or " Tyson" read "Pi/son,." 1024, line 20— for " mortgagee'' read " mortgagor." 1029, line 5 of par. S—for " vendor" read " purchaser." 1030, line 8 of par. i—for " Harrison" read " Sanson." 1032, last line of par. A— for "N. S." read " Ch." 1033, last line of par. i—for " 167" read " 187." 1034, after par. 2 — Vendor siijfering Land to lie maste — Deterioration of Property — Rent."] " Where a purchaser will be allowed to set off against the interest payable by him, the rent which he might have received for and the amount of deterioration in respect of the property pmrchased, see Phillips v. Silvester, L. K., 8 Ch. 173." 1035, line 5 of par. 8— after " objections" read " in respect of matters." 1046, end of pars. 1 and 2 — Contract to Sell — Devise to Infant.^ " Sail V. BusMll and Bannerman v. Clarlie were followed, but not Purser v. Darhy, in White v. Beoh, 6 Ir. Eq. Eep. 63, and Lon- ginotto v. Morss, 20 L. T., N. S. 828." 1050, line Q^or " the validity of" read " its validity as to." 1060, line 3 from bottom— JVotice — To Solieitor.'] After " Kennedy v. Green." " A solicitor who raises money for a client on mortgage and does not register the deed, which requires registration, and afterwards raises money for the same client from another mort- gagee, not disclosing the prior mortgage, does not commit a fraud within the rule laid down in Kennedy v. Green, and the second mortgagee does not gain priority by registering. Rolland Y. Sart, L. E., 6 Ch. 678." 1061, end of par. 2 — Notice — In same Transaction.^ After " Wyllie v. Pollen" add " comp. and cons. Holland v. Sart, L. K., 6 Ch. 678," stated sup., Add. 1060. 1063, par. 1— JVotice— Proof by Client.'] " Maefarlan v. Bolt " is re- ported " 14 Eq. 580;" add also " Wilson v. Northampton, 4~c. R. Co., ib. 477; Minet v. Morgan, L. E., 8 Ch. 361." 1065, line 8— after " 1 Atlc. 96, n. (1)" add " Sander's Ed." 1072, line iO—dele " 408." 1077, last line of par. i—for " are bound by" read " are entitled to the benefit of." 1081, end of line 3 of par. i—for " for" read " to." 1082, lines 3 and 6 of par. ^—for " covenant" read " covenants," and line 6— for "it" read "they." 1085, last line of par. i—for " 506" read " 560." 1086, line 22-for "De G. & S." read "De J. & S." 1088, line 8 of par. I— for " 13 L. J." read " 4 L. J., N. S., Ch." Addenda et Corrigenda. cxlvii PAOR lOUO, end of last par. — Pleading a Purohase.'] Add " See Vane v. Vane, L. K., 8 Ch. 383." Vesting and Divesting op Estates and Interests. 1099, line 11— /or " property" read " legacy." 1101, line 9,-for " 492" read " 192." 1101, line 8 of par. S—for " 15" read " 215." „ lines 8 and 12 of par. Z—for " Browne v. Browne" read " Browne T. Hammond." 1106, line 8 of par. i-for " 462" read •• 452." 1107, last line of par. 2 — Vesting: and Divesting of Estates — Conditions.'] To " Wright v. Wilkin" add " Att.-Gen. v. Wax Chandlers' Co., L. R., 6 H. L. 1." 1109, line 5 -for " 701" read "707." „ end of par. 2— Condition intended not expressed.'] "When a bequest is clear and certain, it Trill take effect, although it may appear that the testator intended to annex conditions, if, in fact, he docs not do so. Tates v. University College, L. R., 8 Ch. 454. In this case the bequest was a charitable one." „ lines 2 and 3 from bottom— Condition Precedent — Ignorance of.] After " Avelyn y. Ward" add " Be Hodge's Trusts, 8 W. N. 87." 1110, end of par. 2-add "Page v. Hayward, 2 Salk. 570." 1113, after par. i—Gift over in event happening in Lifetime of Testator^ " Under a gift to A. to be vested at twent3'-one, or if he should die under that age leaving issue. In case he should die without attaining a vested interest, over. The legatee attained twenty- one and died in the testator's lifetime leaving issue : it was held that the gift over took effect. Ue Gaitshell's Trusts, L. R., 15 Eq. 386." 1114, lino li— for " 220" read " 440." 1115, line 3 from bottom— /or " 478" read " 78." 1116, lines 10 and 13 of par. 2— after "A." read " or any of the class •" and in line 10, for " any one" read " any." ' „ end of par. 3— Absolute Gift— Contingent Gift over.] After " Clark V. Henry." " In Bowling's Trusts, L. R., 14 Eq. 463, Malins, V.-C, stated the rule upon the subject to be ' that when yon find the will commencing with an absolute gift at a particular period, and then a gift over in the event of death, it means in case of death taking place before that period at which the property is to become absolutely vested.' " „ line 3 from bottom— /or " Eew" read " Eeir." 1117, end of par. I— add " See the cases. Compendium, p. 1261." 1121, line 11— for " 1" read "2." 1123, line 4 of par. 3— /or " 336" read " 363." „ next line— /or " 6, 12" read " 512." cxlviii Addenda et Corrigenda. PACK 1127, line 6— /»)• " Sheppard" read " Shipphard." 1128, line 4 from bottom of par. 1— after " Re XJstielie'' add " cons. Re Arnold, L. E., 10 Eq. 262, 258." „ end of par. 4—" iSurcivor" read " otlier."'\ Add " Waite v. Little^ mood, L. E., 8 Ch. 70." 1130, last line of par. 2— for " 154" read " 64." 1134, line 5.of par. S—for " Fest" read " Test." 1136, line li—for " Garnett" read " Gosset." 1137, line 2-for " 2" read " 1." 1138, line 1 — " Ciirrie v. Larldns, 10 Jur., N. S. 8, is also reported 4 D., J. & S. 245." 1146, line 4 of par. 3— between "Lord Netterville and 10 Ves." read " cited." 1150, par. 3 — Conditions — Forfeiture hy Assignment, 4'c. — Composition Deed.'] After " Montefiore v. Enthpven." " So the execution of a composition deed containing a recital that the debtor was unable to pay his debts, is within the ordinary forfeiture clause. Bill- son V. Crofts, L. E., 15 Eq. 314." 1151, Une 5 of par. 2— for " 543" read " 344." 1152, line 7— for " J. & S." read " Jur., N. S." „ line 2 from bottom— /or " Taylor " read " Paylor.'' Waste. 1157, line 2 — Bill for an Account — Injunction — Remedy at Lam.'] After " Parrott T. Palmer.'" " It is now settled that a bill for an ac- count will not lie, except as incident to an injunction. Siggin- hotliam r. HareUns, 7 Ch. 676." „ par. 2 — Limitations.] To "Seagram t. Knight," add " Higgin- hotham v. Hawkins, sup." "Wills. 1168, end of par. 3 — " The husband's assent will not extend the operation of a will made during the marriage, to property acquired by the wife after his death, so as to make the will speak with reference to such property from' her death. Nolle v. WiUoc/i, 8 W. N. 124." 1169, line 7— To " Ball v. Hall" add " Parfitt v. Lawless, 41 L. J., Pr. 68." 1174, line 2— for "4" read " 3." 1175, line 2 from bottom— /or " De G." read " De J." 1178, par. 3—" Charlton v. Sindmarsh, S H. L. C. 160." „ par. 3—" Morritt v. Douglas is reported L. E., 3 P. & D. 1." Addenda ct Cunigenda. exlix PAGE . r • tl 1179, line 3 of par. i—for " Goods of Zemis" read "ZemH v. Zemis. 1182, line i from bottom of par. i—for " Kidlei/ " read " Kldby." 1186, line 11— for " 1 P. & D." ?W£? " 2 P. & D." 1191, line 8 of par. 6— /or " Sowes " read " StratJmore." 1194, end of par. l—Bescrijition of Ohject— Husband.'] " A devise to an unmarried woman for life, with remainder in fee to her husband, gives an indefeasibly vested remainder in fee to her /rs< husband. Radford v. Willis, L. E., 7 Ch. 7." „ last line— /o?* " Stevens " read " Strevens." 1195, line li—for "D." read "De G." „ end of par. 3— To " Tonngi v. Robertson," add " MartelU v. Hollo- way, L. R., 5 H. L. C. 532." 1197, line 5 from bottom— /or " 493 " read "403." 1201, par. 1— Wills — Uncertainty.'] After " Mohun T. Mohun." "But where there was a gift of certain legacies, and a direction for payment of certain expenses, followed by the words 'I leave to my sister' (without stating what), in case of her death to her children or grandchildren ; this was held to be a valid gift of the residue to the sister. Rerkins v. Fladgate, Bassett'i Estate, Re, L. R., 14 Eq. 54." 1202, par. 3 — Uncertainty of Objects of Devise.] After " Frestwidge t. Groombridge." "Although a residue and residuary legatees are referred to in general terms, if the latter are not named or described, the residue is undisposed of. Tracers v. Travers, L. E., 14 Eq. 275." 1203, par. 1— Uncertainty in Name or Object.] After " Simon v. Barker." " But there must be a reasonable doubt, a slight inaccuracy in the name of a particular charity otherwise properly described is im- material. Re Mlvert's Trusts, L. R., 7 Ch. 170." „ line 7— for " Tltomas " read " nwm/pson." 1205, par. l—Mvidence to correct Error — Will read to or left with Tes- tator.] To " Guardhousey. Blackburn" add" Hartery. Har- ter, L. E,, 3 P. & D. 11." „ line 14 from bottom— /or " 1 S. & T. 241 " read " 2 S. & T. 141." 1209, end of par. 3 — " Webb v. Byng, aff. nom. Byng v. Byng, 10 H. L. C. 171." 1212, line 2-/or " 383 " read " 283." 1215, last line of par. 3— for " 779 " read " 799." „ line 6 from bottom— /or " 500 " read " COO." 1216, par. 2 — Mistake in Number of Legatees.] After " Lee v. Lee " add " M'Kechme v. Vanghan, L. E., 10 Eq. 1189." 1218, line 6 from bottom — Rejection of Words.] To " Z>oe v. Stenlalte " add " Hugo v. Williams, L. R., 14 Eq. 224." 1223, line 14— /or " 2 " read " 1," and after " pi. 1 " read "p. 613." cl Addenda et Corrigenda. PAGE 1224, par. 4— After "2 Wms. Sannd." read "ed. 1871." 1225, line 10— /or "1 Taun. 168 " read " 1 Wms. Saun., ed. 1871, p. 172." „ par. 2— To "Rabiethv. Squire" add " Mannoso v. Greener, L. R., 14 Eq. 456." 1226, line 6— After "659 " read " (m)." „ line 5 from bottom — dele " specific." 1230, par. 3 — Words descriptive of Personal Estate — Debts.'] After " Petty V. Wilson " add " Under a bequest of money owing to the testator, the onus of showing that a particular snm was ' owing ' is upon the legatee. Martin, v. Sobson, L. B., 8 Ch. 401." ■ 1236, line %—for " Ca. t. Lee " read " 2 Lee Ecc." „ line 4 from bottom— /or " Williams v. Williams " read " Williams V. Hughes." „ line 10 from bottom— /or "490" read "499." 1238, par. 5 — Legacy given for a Purpose mliAch cannot be effected^ After " Lonsdale v. Berchtoldt." " If a sum be given to par- chase a commission in the army for A., which, since the abolition of such purchases, cannot be effected, A. will be absolutely entitled to the sum so given (Palmer v. Flomer, L. E., 18 Eq. 250); secus, where money is to be raised for that purpose under a settlement, ante, Add. 584." 1248, line 12 of par. 2— After " Geo." read "3." 1250, line 4 of par. i—for "589" read "539." 1252, line 7 of par. 6— After « 495 " add " n. (1), by Cox." 1253, line 7 from bottom — Interest on Legacy to Infant.] After " He Richards" add "see Chidgey v. Whitby, 41 L. J., Ch. 699." 1255, line 10 of par. i—for " 683 " read " 783." 1260, end of Ch. 17 — Devise of Mortgage Property and Debt.] " Wbere a testator was the owner in fee of certain houses, subject to a lease granted by him, of which he was mortgagee in possession, and devised ' his freehold houses,' describing them, it was held, that his interest as mortgagee in the mortgage debt and houses did not pass. Borcen v. Barlow, L. E., 8 Ch. 171." 1279, last line — Gift of Personalty to the Heirs of a deceased Person^ To " JRe Newton's Trusts " add " In re Steeven's Trusts, L. E., 15 Eq. 110; and see Herrick t. Franklin, L. E., 6 Eq. 593." 1282, end of par. i— Description of Objects — Nephews and Nieces, meaning those of Wife.] To " Frogley v. Phillips," add " Sherratt v. Mountford, L. E., 15 Eq. 305." 1285, last line — " Iredell v. Iredell was questioned by Bacon, V.-C, in Gimhlett v. Piirton, L. E., 12 Eq. 472." 1293, line 5—" Crook v. Sill, afSrmed, H. L., 8 W. N. 111." Addenda et Corrigenda. cli PAGE 1302, par. 2— i?ie nithout Issue.l To " Campbell v. Sarding" add « Fisher v. Webster, L. E., 14 Eq. 283." 1304, end of par. 2—" Consider the observations of James, V.-C, in Be Watson, 39 L. J., Ch. 770, on Bryden v. Willett." 1312, end of par. 4 — Limitation to A. for Life, Bemainder to his Exe- cutors.'] To " JPage v. Sojier " add " Webb v. Sadler, la. E., 8 Ch. 419." 1314, par. 4 — GUfts to Belations.'] After "Finch v. Hollingsmorth" add " and they will take in general as joint tenants. Eagles v. Le Breton, L. E., 15 Eq. 148." „ end of par. 6 — Gift to Belations — Blood Belations."] Add " Sib- bert T. mbbert, L. E,, 15 Eq. 372." 1315, par. 3 — Class when ascertained — Where there is a prior Life In- terest.] After " Tiffin v. Longman." " But the constraction adopted in Tiffin v. Longman, sup., is exceptional. A gift to relations is ordinarily construed like a gift to next of kin, and the class ascertained at the death of the testator. Eagles y. Le Breton, sup. The head note in this case is correct ; there is an error in the report of the judgment. See the report, 8 W. N. 48." COMPENDIUM OF EQUITY, &c. ACCUMULATIONS. P)-ior to 39 ^ 40 Geo. 3, c. 98 1 Case of Thellusson v. Woodford .. . . 1 39 #40 Geo. 3, fl. 98.. .. 2 Savie construction as to ^Yills and Deeds . • 3 What Accumiilations mithin and not mithin Act . - 3 Accumulations by opera- tion of Lam .. . . 3 Accumulations to raise a gross Sum .. . . 3 Commencing after Tes- tator's Death .. . . 3 2?me allowed for Accumula- tions .. . . . . 4 Only one of several Pe- riods to be taken . . 4 For indefinite Period void .. .. ..4 Hme allowed, ^c.— contd. During Minority of un- born Child .. . . 4 Direction to accumulate in excess of permitted Period 4 Who entitled to Income on Accumulation ceas- ing to be lawful . . 4 Accumulation of Residue 5 affect of Heir taking . . 6 Accumulations for Payment of Debts and Portions .. 6 Direction to accumulate entire Income . . 6 Portions, horn charged. . 6 Alternative Ei^ents .. 7 'KTiat Children mithin Exception . • . . 7 What Interest their Pa- rents must take . . 7 Prior to 39 Sf 40 Geo. 3, c. 98.] Before the 39 & 40 Geo. 3, Accamuiations for c. 98, frequently termed the Thellusson Act, trusts for accu- "^^,t°.^'e|^ mulation might have been co-extensire with, but could not after valid. exceed, the limits of executory devises, viz., a life or lives in being and twenty-one years after. Ld. Southampton v. Marq. Hertford, 2 V. & B. 61. In the celebrated case of case ot nieiimson Thellusson v. Woodford, 4 Ves. 227; aff. H. L., 11 Ves. v. froorf/ord. 112 (see further as to this case, Fea. Con. Rem. p. 436, n.), Mr. Thellusson, by his will, directed the rents of certain estates to be accumulated and invested in land during the For the editions of the treatises referred to in this work see end of Table of Cases. Thellusson Act. Provisions t)f act. Where act does not apply. lives of all his sons, grandsons and their issue who should be living at his decease, or bom in due time afterwards ; after the death of the survivor of such descendants, the estates were directed to be divided into three parts, to be respec- tively settled in strict settlement on the then eldest male lineal descendants of the testator's three sons, one part for each of such descendants. Accumulations were thus directed during the lives of a considerable number of persons, some living at the testator's death, several of whom were infants, and some then unborn, but born in due time afterwards. The will gave rise to a great deal of Htigation, but was eventually established in the House of Lords (see 11 Ves. 112, in 1805), and the parties entitled ascertained in 1859. Thel- lusson V. Robarts, 7 H. L. C. 429. 39 ^ 40 Geo. 3, c. 98.] In consequence of this decision (11 Ves. 112), the 39 & 40 Geo. 3, c. 98, vi^as passed, by which it is enacted that no person shall, after the passing of this act, by any deed, surrender, will, codicil or otherwise settle or dispose of any real or personal property so that the rents, profits or produce thereof shall be wholly or partially accumulated for any longer term than, (1) the life or lives of any such grantor or settlor; (2) or the term of twenty-one years from the death of any such grantor, settlor, devisor or testator; (3) or during the minority or respective minorities of any person or persons who shall be living or in ventre sa mere at the time of the death of such grantor, devisor or testator; (4) or during the minority or respective minorities only of any person who under the uses or trusts of the deed, surrender, will or other assurance directing such accumula- tion would for the time being, if of full age, be entitled to the rents, profits, interest, dividends or annual produce so directed to be accumulated; and in every case where any accumulation shall be directed otherwise than aforesaid such direction shall be null and void, and the rents and produce of such property so directed to be accumulated shall, so long as the same shall be directed to be accumulated contrary to the provisions of the act, go and be received by such person as would have been entitled thereto if such accumulation had not been directed (s. 1). Nothing in the act is to extend to any provision for pay- ment of the debts of any grantor, settlor or devisor or other person, or for raising portions for any child or children of any grantor, settlor or devisor, or any child or children of any person taking any interest under any such conveyance, settlement or devise, or to any direction touching the pro- duce of timber upon any lands (s. 2). The act does not What Accumulations within the Act, 3 extend to any disposition of heritable property in Scot- land (s. 3). But this section was repealed by the 11 & 12 Vict. c. 36, s. 41; and the 39 & 40 Geo. 3, c. 98, now applies to all Scotch property, personal as well as heritable. The act does not apply to Ireland, nor to an Irish settlement made by a domiciled Irishman. Heywood v. Heywood, 29 Bea. 9; and see Ellis v. Maxwell, 12 Bea. 104. The same construction of the act is applicable to wills and same construction deeds. Be Ld. Rosslyn's Trusts, 16 Sim. 391. aeer^""* What Accumulations are within and not within the Act.^ Accumulation by It cannot, perhaps, be considered as quite settled whether an »p''""°" °' ''''^• accumulation which arises, not by the direction of the settlor or testator but by operation of law, is within the act. See the judgment in Mathews v. Keble, L. R., 4 Eq. p. 471, aff. 3 Ch. 691. The cases of Griffiths v. Vere, 9 Ves. 127; Lambe v. Stoughton, 12 Sim. 304; Elborne v. Goode, 14 Sim. l65; Bridgnorth v. Collins, 15 Sim. 538, and Mathews Y. Keble {sup.) are in favour of the view that an accumulation simply by operation of law is not within the act. And, on the other hand, M' Donald v. Bryce, 2 Ke. 276, the opinion of Ld. Cranworth in Tench v. Cheese, 6 D., M. & G. 453, and some observations of L. C. Westbury, in Ctss. Bective v. Hodgson, 10 H. L. C. 656, lead to an opposite conclusion. See, however, Ii. R., 4 Eq. 472, and perhaps the dictum of Ld. Cranworth (sup.) has reference solely to a direction to accumulate on a contingency, which, therefore, is an express direction to accumulate when the contingency happens. See Mathews v. Keble, L. R., 3 Ch. p. 696, per Wood, L. J. It is not necessary, to bring a case within the act, that the word accumulation should be used. A direction to invest, or the like, for a period longer than is authorized, is clearly a direction to accumulate within the act. See Mathews v. Keble, sup. A charge on property, by which the rents are Accumulations to directed to be accumulated to raise a gross sum, is within ™'^^ ^ ^"'° """' the act if such period exceed the limit allowed, and the di- rection is void for the excess of time beyond the twenty-one years. Oddie v. Brown, 4 D. & J. 179. A direction by will to keep up the premiums on a policy of assurance effected by the testator on the life of another person is not an ac- cumulation within the act. Bassil v. Lister, 9 Ha. 177. Although the accumulations may be directed to commence Accumulations at a period subsequent to the testator's death, they must tototort'dSitt!^"^ nevertheless cease at the expiration of the twenty-one years after his death. Webb v. Webb, 2 Bea. 493; Shaw v. Rhodes, 1 M. & C. 135; 5 CI. & F. 114. But the period of distribution will not be accelerated so as to take effect at the b2 Time allowed for Accumulations. Computation of comiiieiiceinent of acciimulatioD. time when the accumulation ceases to be lawful. Nettleton V. Stephenson, 3 De G. & Sm. 366. lu computing the period of accumulation from a testator's death, the day of his death is to be excluded. Gorst v. Lowndes, 1 1 Sim. 434. Only one of several periods can be taken. Must not infringe rule against per- petuities. For indefinite period wholly void. During minority of unborn cliild. Who entitled to income after lawful period of accumulation. Time allowed for Accumulation.^ Only one of the several periods allowed for accumulation can be taken. Thus in a will an accumulation cannot be directed for twenty-one years after the testator's death and thenceforth during the minority of the person entitled under the limitation. Wilson Y. Wilson, 2 Sim., N. S. 288. The act has made no difference with respect to trusts for accumulation capable of enduring beyond the period allowed by the rule against perpetuities, that is, lives in being and twenty-one years after. Such trusts would have been abso- lutely void before the act, and are not the less so since the act. Ld. Southampton v. Marq. Hertford, 2 V. & B. 54 ; Marshall v. HoUoway, 2 Sw. 450 ; Browne v. Stoughton, 14 Sim. 369; Boughton v. James, 1 H. L. C. 406; Turvin V. Newcome, 3 K. & J. 16. Thus a trust to accumulate during successive minorities, which may endure for an in- definite period, would have been void before the act, and is so now. Scarisbrick v. Skelmersdale, 17 Sim. 187 ; comp. Williams v. Lewis, 6 H. L. C. 1013. So a trust for accu- mulation during the minority of an unborn child. Haley V. Bannister, 4 Madd. 275 ; Ellis v. Maxwell, 3 Bea. 587. See Bryan v. Collins, 16 Bea. 17. Direction to accumulate in excess of permitted Period."] A direction to accumulate, which is not absolutely void as infringing the rule against perpetuities, but is only in excess of the period allowed by the act, will be good for such period and void only for the excess. Longdon v. Simson, 12 Ves. 295 ; Griffiths v. Vere, 9 Ves. 127 ; Marshall v. HoUoway, 2 Sw. 450. When the accumulation ceases to be lawful under the act, but the period of distribution has not arrived, the question arises, who is entitled in the meantime to the future income of the original fund, and also to the income of the accumula- tions lawfully made ? Where there is a vested interest in possession in the property, subject only to the trust for accumulation, the person so entitled in possession will take such futui-e income and the income of the accumulations. Trickey v. Trickey, 3 M. & K. 560 (marg. note is incom- plete) ; Re Chilow, 1 J. & H. 639. See Combe v. Hughes, 2 D., J. & S. 657. But if there is no one so entitled by Accumulations in excess. 6 reason of the possession or vesting being postponed until the expiration of the period of accumulation, the future income, after the legal period for accumulation has ceased, of the original fund or property, if personal, and of the accumu- lations, will go to the residuary legatee, if any {Ellis v. Maxwell, 3 Bea. 587 ; Jones v. Maggs, 9 Ha. 605) ; if real, to the heir, where the will is subject to the old law, even though the accumulations may be specifically bequeathed and there is a residuary devisee. Smith v. Lomas, 10 Jur., N. S. 742 ; see Nettleton v. Stephenson, 3 D. & Sm. 366; Green v. Gascoigne, 11 Jur., N. S. 145. As to the opera- tion of the 1 Vict. c. 26, where the will is under that act, see and consider s. 25, by the operation of which a residuary devise is now placed on the same footing as a residuary be- quest. Cogswell V. Armstrong, 2 K. & J. 227 ; Carter v. Haswell, 3 Jur., N. S. 788. But if the residue be not given absolutely, but only the interest of it in the first instance to a tenant for life, such future income, and income of accumu- lations, will be added to the capital of the residue, the in- terest only going to the person entitled to the interest of the residue. See Crawley v. Crawley, 7 Sim. 427 ; Morgan v. Morgan, 4 De G. & Sm. 164. In cases where the residue itself , or the surplus income of where residue is the residue, is directed to be accumulated beyond the per- ^ramuMed^ mitted period, the income of such residue or surplus, if personalty, after such period belongs to the next of kin of the testator (Macdonald v. Bryce, 2 Ke. 276; Oddie v. Brown, 4 D. & J. 179; Burt v. Sturt, 10 Ha. 425); if realty, to his heirs {Holford v. Stains, 16 Sim. 488; Eyre v. Mars- den,2Ke. 564; see Sewell v. Denny, 10 Bea. 315); if such residue consist partly of real and partly of personal estate, the income of it will go to the heirs and next of kin accord- ing to their interests in such residue. Edwards v. Tuck, 3 D., M. & G-. 40. Where there is no residuary devise or where no resi- bequest the income beyond the authorized period of accumu- bequest.''^'^' " lation goes to the next of tin or heirs, as the case may be, according to the nature of the property. See Nettleton v. Stephenson, 3 De G. & Sm. 366. In Pursell v. Elder, 3 Sc. Sess. Ca., 3rd Ser., H. L. 59, under a Scotch will (made before the 11 & 12 Vict. c. 36, ante, p. 2), by which the realty and personalty were given so as to form one blended mass, and accumulations were directed for a period which became in excess of the permitted period, one of the questions in the case was, to whom the accumulations went which were in excess of this period, there not being any residuary gift. It was held that the accumulations of the personal estate went to the next of kin Accumulations excepted. Eflect of heir taking. of the testator, no question arising as to the real estate, to which the Thellusson Act did not at that time apply. In those cases in which the heir, if living, would be en- titled to the income of property after the accumulation ceases to be lawful, his personal representatives would seem to be entitled in the event of his death. Sewell v. Denny, 10 Bea. 315. What are por- tions. Direction to accu- mulate entire income and add to capital. Portions, by what instrument cliarged. Accumulations for Payment of Debts and Portions.^ The provision in the act for payment of debts applies as well to the debts of the grantor or testator as to those of third persons {Barrington v. Liddell, 2 D., M. & G. 480), and has refer- ence not only to debts due at the testator's death, but also to contingent liabilities becoming debts after his decease. Varlo V. Faden, 1 D., F. & J. 211. Portions for children are generally understood to mean sums secured to them out of property springing from or settled upon their parents, though there might be cases where the provisions for children out of property in which their parents took no interest might be called portions. Per Turner, V.-C, Jones v. Maggs, 9 Ha. 605. There is, how- ever, some difficulty in saying what are portions within the meaning of the act. See Edwards v. Tuck, 3 D., M. & G-. 57 ; Bacon v. Proctor, T. & E. 31. A direction to accumulate the income of a testator's entire property, or of the residue of it, and to add the accumula- tions to capital, followed by a bequest of the entire fund, comprising accumulations and capital, is not a provision for raising portions within the act. Eyre v. Marsden, 2 K. 564 ; Bourne v. Buckton, 2 Sim., N. S. 91 ; Edwards v. Tuck, 3 D., M. & Gr. 40 ; Jones v. Maggs, 7 Ha. 605 ; comp. Middleton v. Losh, 1 Sm. & G-. 61. This is, in fact, a mode of increasing the amount of the fund which the children are to take. 2 Sim., N. S. 99. See Burt v. Sturt, 10 Ha. 415; Drewett Y. Pollard, 27 Bea. 196; Re Chilow, 1 J. & H. 639; Watt v. Wood, 2 Dr. & Sm. 56. In Mathews v. Keble (L. R., 3 Ch. 691), the accumulated investments were bequeathed after the son's death to his children, and it was held that such accumulations were not within this exception of the act. See also Wildes v. Davies, 1 Sm. & G-. 475. It was at one time a question whether the portions re- ferred to were exclusively portions previously charged upon the property by some instrument prior to the will or settlement directiiag the accumulations {Holford v. Stains, 16 Sim. 488, 496), or, exclusively, portions charged by the very will or instrument itself (Bourne v. Buckton, 2 Sim., Accumulations excepted. 7 N. S. 91; Barrington v. Liddell, 10 Ha. 429, 431); or whether the section contemplated portions of both kinds. The last construction has eventually been held to be the true one. Barrington v. Liddell, 2 D., M. & G. 480, 498; Beech v. Ld. St. Vincent, 3 De G. & S. 678; Middleton v. Lash, 1 Sm. & Giff. 61. Where a will containing an ac- Aitemativa cumulation clause declares the trusts of such accumulations *^™**- so as to meet alternative events, the question whether such trusts fall within the exception of the Thellusson Act in favour of portions depends upon the events which actually occur. Re Chiloio, 1 J. & H. 639. The words " child or children" are not confined to children children cominpr living at the date of the deed or at the death of the testator, SSrtod™r win but will comprise children who may afterwards come into '■^^ within tha existence. Beech v. Ld. St. Vincent, 3 De G. & Sm. 678, '^'' 685. Where a gift is to a class, e.g. grandchildren, to bring the case within the exception in the second section it must be shown that all the grandchildren are children of a person or persons taking an interest under the instrument. Eyre v. Marsden, 2 Ke. 573; Edwards v. Tuck, 3 D., M. & G. 40; Burt V. Sturt, 10 Ha. 415; comp. Middleton v. Losh, 1 Sm. & G. 61. The interest which parents are required to take under the wiiat interest second section is not restricted to an interest in the very pro- take"'' """* perty in respect of which the accumulations are directed, but may be an interest in any other property comprised in the instrument directing the accumulations. Barrington v. Liddell, 2 D., M. & G. 480; see Burt v. Sturt, 10 Ha. 415; Edwards v. Tuck, 3 D., M. h G. 40, overruling on this point Morgan v. Morgan, 4 De G. & S. 164; Bourne V. Buckton, 2 Sim., N. S. 91. Any interest, however small, given to the parents will, it seems, be sufficient. Evans v. Hellier, 5 CI. & F. 114, 126; see Barrington v. Liddell and Edwards v. Tuck, sup., and comp. Burt v. Sturt, sup. ( 8 ) ANNUITIES AND RENT-CHAKGES. Ch. 1. — Of Annuities and Rent-Charges in general, p. 8. Ch. 2. — Of Annuity Deeds, p. 11. Ch. 3.— Of Annuities and Rent-Chakges under Wills, p. 12. CHAPTER I. of annuities and rent-charges in general. Annuity. Bent-cliarge. May charge per- son and Umd. Jf^atwre of . . .. . . 8 Where Person only charged . . . . 8 Where issue out of Lands .. .. . . 8 How may be lAmited . . 8 Annuity in Fee .. . , 9 Statute of Uses .. . . 9 Tinder Lands Improve- ment Act ,. . . 9 Leviable upon any part of Lands charged . . 9 Grant by joint Tenants 9 Nature of — continued. £y Co-parceners . . 9 Remedies for recovery of .. 9 Distress — Stiit in Eq^uity 9 Grants of Rent-Charges by Railway Companies 10 Release and Extinguishment of 10 Purchase or Devise of part of Land . . , . 10 Descent of ,. . . 10 Nature o/.] An annuity is, in the strict legal sense of the term, a yearly payment of a certain sum of money granted by one person to another in fee, for life, or for years, charging the person of the grantor only (Co. Litt. 144 b) ; such pay- ment, however, not being the interest of a mere debt. Win- ter V. Mouseley, 2 B. & Al. 802. Where the annuity issues out of land, with a clause of dis- tress, it is a rent-charge; without such a clause, a rent-seek, for the recovery of which, however, a right of distress is given by the 4 Geo. 2, c. 28, s. 5, and the court will not appoint a receiver, as the annuitant may distrain. Sollory V. Leaver, L. R., 9 Eq. 22. In the case of an annuity granted by way of rent-charge, it may be limited so as to charge both the land and person of the grantor or the land only (see Litt. s. 220 ; 2 Byth. Kature of Annuities. 9 Conv., Sweet's ed., 5'', and the annuitant may proceed at his option against either the land or person chargeable. Turner V. Turner, Amb. 782. An annuity, although merely personal, may be granted in Annuity in fee. fee, in tail, for life or for years, and, if granted with words of inheritance, it descends to the real, and not the personal, representatives of the grantee. Turner v. Turner, sup. ; E. of Stafford v. Buckley, 2 Ves. sen. 179 ; see Ramsay v. Thorngate, 16 Sim. 575; Wms. Exors. 761. But an an- nuity (though charged on real and personal estate) to A. for ever (without words of inheritance) goes to the personal representatives of A. Taylor v. Martindale, 12 Sim. 158. So an annuity to A. " or his heirs," the words in italics being words of substitution. Parsons v. Parsons, L. R., 8 Eq. 260. The heirs of the grantor are not bound by the grant of an annuity or rent-charge unless named. Co. Litt. 144 b; and see lb. n. (2). Rents are within the Statute of Uses (27 Hen. 8, c. 10, statute of uses, s. 145), and are executed in the same way as uses of corporeal hereditaments. Thus, where lands are conveyed to A. and his heirs, to the use that B. and his heirs may receive a cer- tain rent, the use is executed in B. and his heirs (Sug. Gilb. Uses, 193); and if in such a case a declaration is superadded that B. and his heirs shall be seised to the use of C. for life with remainders over, C. and the remaindermen take only the trust of the rent. Chaplin v. Chaplin, 3 P. W. 229. As to rent-charges created under the Lands Improve- tinder Lands im- ment Act, 1864 (27 & 28 Vict. c. 112, see ss. 51 et seq.). Pavement Act. memorials of the absolute orders of the commissioners creating rent-charges are to be registered in the office of the Land Registry in England, and in Ireland in the proper office for the registration of deeds and wills (s. 56). The whole of a rent-charge issuing out of particular Eent-charge is lands is leviable upon any part of such lands though be- p^al^f'tlX *"'' longing to different persons. Roll. Abr. 671, fol. 12. ciiarged. A rent-charge granted by one of several joint tenants Grant by joint affects his interest while living, but is no charge upon the t™^"'^- property if he dies leaving any other of his joint tenants surviving, but is a charge upon the whole property if he himself be the last survivor. Litt. s. 286; Co. Litt. 184 b. But where one of several co-parceners grants a rent-charge By co-parceners. and dies, the survivors are bound by it. lb. Remedies for Recovery of] The remedies for recovery Distress. of a rent-charge are by distress (as to which see 2 Byth. Conv. 32 et seq.') and entry on the premises charged pur- suant to the clause or proviso for entry ; usually, if the 10 Release and Exlinguishment. Suit in equity. Grant of rent- charges by rail- way companies. rent-charge should be in arrear, for a certain number of days. lb. p. 46. Where there is no clause of distress, see ante, p. 8. It has been held also, that there is a remedy in equity in some cases for the recovery of arrears (Cupii V. Jackson, 1 M'Clel. 495 ; see D. of Leeds v. Corp. New Radnor, 2 B. C. C. 338, 519) ; but this would seem to be only in cases where the remedy at law is imperfect. See 2 Byth. Cony. 50; JBradi/ v. Fitzgerald, 12 Ir. Eq. 273. Where land had been conveyed to a railway company in consideration of a rent-charge, with power of distress on the land conveyed, or any other lands of the company, for arrears of the rent-charge, the court gave the grantee leave to distrain on the land conveyed by him to the company, notwithstanding the appointment of a receiver of the tolls, profits and income of the undertaking of the company. Eyton V. Denbigh, S^c. R. Co., L. E., 6 Eq. 14. In a later case, arising out of the transactions of the same company, which had also assigned superfluous lands and chattels to trustees for the benefit of creditors of the company, the court, though allowing the grantee of the rent-charge (who had in this case no express power of distress) to distrain on the land conveyed by him to the company, refused him per- mission to do so on the property comprised in the trust deed, lb.; Rickman v. Johns, ib. 488. Purchase or de- vise or part of land. Release and Extinguishment of.'\ Formerly a release of part of the land from a rent-charge to which the land was subject was an extinguishment of the rent-charge. See 5 Bac. Ab. 694, 713. Now, by the 22 & 23 Vict. c. 35, s. 10, such a release only bars the right to recover any part of the rent-charge out of the hereditaments released, without pre- judice to the rights of all persons interested in the here- ditaments remaining unreleased and not concurring in or confirming the release. A release of part of the rent-charge extinguishes such part only. Co. Litt. 148 a ; 5 Bac. Ab. 694. If a person entitled to a rent-charge purchase any part of the land out of which it issues, the whole rent-charge is at law extinguished. Litt. s. 222; Bac. Ab. Rent (M) 1. So if there be a devise to the grantee of part of the land charged {^Dennett v. Pass, 1 B. N. C. 388), but otherwise where the rent-charge descends upon the owner of part of the land, or part of the land descends upon the owner of the rent-charge, for descent is the act of the law, which injures no man, and in such cases there will be an apportionment. Litt. s. 224 ; Co. Litt. 149 b. The grant of a rent-charge to a man and his heirs detor- Annuity Deeds. 11 mines by his death intestate and without heirs. Co. Litt. 298 a, n. (2) ; Reeve v. Att.-Gen., 2 Atk. 223. As to apportionment of rent-charges and annuities, see Apportionment, tit. " Apportionment." CHAPTER II. OF ANNUITY DEEDS. Enrolment formerly neeee- aary . . . . .. . . 1 ] Registration to bind Lands . . 11 Doei not apply to Wills .. 11 Repurehase or Redemption .. 11 Where Annuities cv/mulative 12 Prior to the 17 & 18 Vict. c. 90, it was necessary, under the Enrolment for- 53 Geo. 3,c. 141, to enrol memorials of annuity deeds (with ""'y ■'=<:^'»«^- some exceptions) in Chancery within thirty days after their execution. By the last-mentioned act various minute parti- culars as to dates, names of parties, witnesses, consideration, &C., &c., were required to be inserted in the memorial; omis- sions or inaccuracies in which were often fatal to the vali- dity of the annuity deed. See the cases collected, Chitty's Statutes, vol. i., p. 72 et seq. This act, however (with some other explanatory acts), was repealed by the 17 & 18 Vict. c. 90, repealing the usury laws. Enrolment in Chancery of annuity deeds is no longer necessary, therefore, to give them validity. By the 18 & 19 Vict. c. 15, however, annul- Registration to ties or rent-charges granted otherwise than by marriage wnd lands. settlement for lives or years, or greater estate determinable on lives, wiU not affect any lands or hereditaments as to purchasers, mortgagees, or creditors, unless a minute con- taining the name, place of abode, and title or calling of the person whose estate is to be affected, date of the assurance and amount of annuity, is duly registered (s. 12). The act Does not apply to does not apply to annuities or rent-charges given by will ^"^^ Where in the grant of an annuity there is a contract of Re-purcha«e or re-purchase, the terms of such contract must be strictly com- '<=*«™p"°"- plied with. Joy v. Birch, 4 CI. & F. 57 ; see Sug. Law of Prop. 667 et seq. As to the right to policies of assurance on the re-purchase- of annuities, see Gottlieb v. Crunch, 4 D., M. & G-. 440 ; Courtenay v. Wright, 2 Giff. 337; Knox V. Turner, L. R., 9 Eq. 155; and see tit. "Mortgage," Ch.4. 12 Annuities and Rent-Charges under Wills. Wliere cumulu tive. Annuities granted by two or more deeds may, like annui- ties or legacies given by will, be cumulative if an intention to that effect can be collected; as where they are of different amounts, are differently secured, and, as regards females, dif- ferently settled — for instance, to their separate use by one deed, but not by the others ; or to their separate use with re- straint on anticipation by one deed, and to their separate use by the other. Palmer v. Newell, 8 D., M. & G. 74; Paget V. Grenfell, L. E., 6 Eq. 7; see tit. " Satisfaction." CHAPTER ni. OF ANNUITIES AND BENT-CHARGES UNDEE WILLS. Oenerally Are i Are in genera] considered aa legacies. Liable to income tax. Legacy duty. Where Uaile to Income Tax cmd Legacy Duty . Whether perpetual or for Life only .. Charge on Land — Pur autre Vie Gift of Produce of Fund, §ift of JBhmd itself . . Direction to Purchase . . To pay out of Property . . After Life Interest Joint or several Lives and Life of Sur- vivor . . Payable out of Corpus or In- come only .. . . . . 16 12 12 12 13 13 U 14 14 14 15 15 Payable out of Corpus, ^c. — cont d. Intention that Corpus should go over intact .. 17 Reduction under Act of Parliament . . . . 17 Receipt of reduced An- nuity .. ,, ..18 Arrears . . . . . . 18 On mhat Property a Charge,. 18 Specific — Demonstrative 18 Abatement of .. ..18 Commencement— Pay ment . . 18 When charged on Rever- sionary Property . . 19 Several Properties— Con- tribution .. ..19 Purchase of Government An- nuities .. .. . . 19 Generally.] As a general rule atinuities are comprised under the denomination of, and are subject to the same rules as, legacies ( Sibley v. Perry, 7 Vcs. 534 ; Swift v. Nash, 2 Ke. 20; Ward v. Grey, 26 Bea. 491), unless it can be collected from the will that the testator intended to make a distinction between them. See Gaskin v. Rogers, L. R., 2 Eq. 284. An annuity wiU be liable to income tax, though made payable " without any deduction whatever." Ahadam v. Abadam, 33 Bea. 475 ; see Festing v. Taylor, 3 B. & S. 217 ; 10 Jur., N. S. Pt. 2, p. 276. Under a bequest of a clear yearly rent-charge or annuity, the annuitant takes it free of legacy duty. Baily v. Boult, Perpetual or for Life only. 13 14 Bea. 595; Haynes v. Haynes, 3 D., M. & G. 590; Re Coles' Will, L. E., 8 Eq. 271. But otherwise where money is directed to be invested so as to produce a clear yearly sum, which is given to several in succession who stand in different degrees of relationship; as the duties in such a case would be different, it would be impossible to ascertain the precise sum to be invested to answer the legacy duty in every case. Sanders v. Kiddell, 7 Sim. 536; Pirdie v. Field, 19 Bea. 497. ■ Whether Perpetual or for Life only.] An annuity eo Given generally. nomine, or specific sum per annum given generally, is for life only. See Blewitt v. Roberts, Cr. & Ph. 274; Kerr v. Middlesex Hospital, 2 D., M. & G-. 583. And if an annuity charge on land. given simpliciter be charged on an estate in fee, it will only be a life annuity. Manser gh v. Campbell, 3 D. & J. 237; comp. Stokes v. Heron, 12 CI. & F. 161. Even when an annuity is given specifically to one for life, and after his death to another generally, the latter has it for hfe only {Yates V. Maddan, 3 Mac. & G. 532; Re Groves, 1 Giff. 74; see Lett v. Randall, 2 D., F. & J. 388); or to one for life with remainder to a class, or the survivors or sur- vivor of them {Blewitt v. Roberts, sup.), unless a contrary intention can be collected from the will. Thus, in Man- sergh v. Campbell, 3 D. & J. 232, where an annuity was given to A.-, for life, then to her children for maintenance, and on the youngest child attaining twenty-one it was directed to be sold and the proceeds divided among the children, it was held that the annuity to the children was perpetual. See Hedges v. Harpur, Hedges v. Blicke, 3 D. & J. 129, over- ruling S. C, 9 Bea. 479; Pawson v. Pawson, 19 Bea. 146. And under a devise of all the testator's property to A. " except 500^. a-year" to B., the annuity is perpetual. Hill V. Rattey, 2 J. & H. 634. If an annuity out of personal estate be given to one person pur autre tie. during the life of another, and the latter be the survivor of the two, during the remainder of his life the representatives of the former wiU be entitled to it; but otherwise, had it been a rent-charge on real estate. Savery v. Dyer, Amb. 139. See Bayne v. Crowther, 20 Bea. 400; Attwood v. Alford, L. E., 2 Eq. 479. If a fund or money be given to purchase an annuity, as if property or fund the legatee will be entitled to the annuity absolutely, he may In™" ',? ^"'''atee take the fund or money in lieu of the annuity to be pur- may take fund, chased with it {Ford v. Batley, 17 Bea. 303; Kerr v. Middlesex Hosp., 2 D., M. & G. 583 ; Pawson v. Pawson, 19 Bea. 146; Ross v. Borer, 2 J. & II. 469; cons. Lett v. 14 Perpetual or for Life only. Gift of produce of fund, is gift of fund. Direction to pur- cliase, gives a right to tlie fund. To pay out of particular fund. After life interest. Randall, 2 D., F. & J. 392), the whole of the principal being dedicated to the payment of the annuity. fVakeham V. Merrick, 37 L. J., Ch. 85. A bequest of the interest or produce of a fund simpliciter, without limitation as to continuance, is a gift of the fiind itself. Phillips v. Cham- berlaine, 4 Ves. 51; Stokes v. Heron, 3 Mac. & G. 540; 12 CI. & F. 161; see Adamson v. Armitage, 19 Ves. 416; tVil- son V. Maddison, 2 Y. C. C. 375. And where property is given in order to produce an annuity, prima facie it will be a perpetual annuity. Stokes v. Heron, 12 CI. & F. 161 ; see ib., p. 194. A direction to purchase an annuity for A., or a gift to him of a perpetual specific annuity, entitles him to receive such a sum as will purchase an annuity of that amount in the funds; for he is entitled to the best security. Hill v. Rattey, 2 J. & H. 634 ; see Timmins v. Stackhouse, 27 Bea. 434. It makes no difference that there is a declaration in the will that he is not to receive the capital in lieu of the annuity. Stokes V. Cheek, 28 Bea. 620. And where the annuity is to be in trust for the separate use of a female, with restraint on anticipation, and she is unmarried, she will be entitled to the sum required to purchase it {Re Browne's Will, 27 Bea. 324); even though the trustees have a discretionary power as to its application for her maintenance in case of her incapacity or illness. S. C, see Stokes v. Cheek, sup.; cons. Power v. Hayne, L. E., 8 Eq. 262. So a direction to purchase an annuity in government securities is a gift of a perpetual annuity {Kerr v. Middlesex Hosp., 2 D., M. & G-. 576 ; Ross V. Borer, 2 J. & H. 469 ; comp. Re Groves, 1 Giff. 74), and entitles the annuitant to receive the purchase- money if he chooses. But a mere direction to pay an annuity out of a particular fund ( Wilson v. Maddison, 2 Y. C. C. 372) or general effects {Innes v. Mitchell, 6 Ves. 464), or to invest in government securities sufficient to produce a particular sum per annum and pay it to the legatee {Re Groves, sup.), does not amount to a gift of a perpetual annuity, and such an annuity, if given to one for life, with remainder to another, or a class, is limitfed to their respective lives. Lett v. Randall, 2 D., F. & J. 388. See Warren v. Wright, 12 Ir. Ch. R. 401 ; comp. Mansergh v. Campbell, 3 D. & J. 232. An annuity directed to be purchased out of the proceeds of the sale of an estate in which a life interest is given to another, being in the nature of a legacy, the representatives of the annuitant will be entitled to it if he dies in the lifetime of the tenant for life. Bayley v. Bishop, 9 Ves. 6 ; see Yates V. Compton, 2 P. W. 308 ; Palmer v. Craufurd, Joint or several. 15 3 Sw. 482. In Day v. Day, 1 Drew. 569, there was a direction, after the death of the tenant for life to lay out part of the property in the purchase of an annuity /or the life of A., with a gift over of the annuity if A. should assign, dispose of, or anticipate it. A. died in the lifetime of the tenant for life without having assigned, &c., the annuity, and the portion set apart to purchase it, was held to vest in his representatives. In Power v. Hayne, L. E., 8 Eq. 262, however, which was not distinguishable from Day v. Day, V.-C. Malins declined to follow it, and held, that on A.'s death in the lifetime of the tenant for life, there being no express gift over in that event, there was an intestacy as to the share directed to be applied in the purchase of the annuity. Joint or several.^ An annuity to two "during their For lives. natural lives" is joint and does not lapse by the death of one in the lifetime of the testator. Alder v. Lawless, 32 Bea. 72. So an annuity to three during their lives and the lives Lives and iiie of of the survivors and survivor dm-ing their and his natural s^r^'vor. life, and after the decease of the survivor, over, vests in them as joint tenants. Pearson v. Cranswick and Cranswick v. Pearson, 31 Bea. 624. But in commenting on this and some other similar cases in Bryan v. Twigg (L. E., 3 Ch. 183), Eolt, L. J., observes, that the representatives of the deceased annuitant were not before the court, and that the question was between the survivors and persons claiming under the gift over. lb., p. 186; see Blewitt v. Roberts, Cr. & Ph. 274. An annuity to A. and her children for their joint mainten- Joint mainte- ance enures for the benefit of all jointly and of the survivors ™°'^^- and last survivor. Wilson v. Maddison, 2 Y. C. C. 372. If given to the husband and wife jointly and to the sur- vivor, this does not make them tenants by entireties so as to entitle the wife surviving to arrears accrued during their joint lives. Knox v. Wells, 2 H. & M. 674. The adultery of the wife, and dissolution of the marriage in consequence, will entitle the husband to the whole annuity if derived under the will of his father, the benefit of the son being the motive of the gift. lb Where interests are given to several for their lives, and Gifts over after after their deaths respectively the share of each is given to r2'peoH°veiy'^"'' his children or issue, this will in general be construed dis- tributively, the share of each on his death devolving on his children or issue. Brown v. Thompson, 11 Jur., N. S. 922. See Bignold v. Giles, 4 Drew. 343 ; Ayscough v. Savage, 13 W. E. 373. And in cases in which the repre- sentatives of a deceased annuitant have raised the question as to the devolution of his share, it has been held that an 16 Payable out of Corpus or Income. To two and sur- vivor. annuity to two to continue during their joint lives and the life of the survivor is a gift to them as tenants in common, and not as joint tenants. Jones v. Randall, 1 J. & W. 100 ; Bales v. E. Cardigan, 9 Sim. 384 ; Bryan v. Twigg, L. R., 3 Eq. 433, and 3 Ch. 183. The share of the one first dying therefore goes to his representatives during the life of the other (comp. Armstrong v. Eldridge, 3 B. C. C. 215 ; Hatton V. Finch, 4 Bea. 186 ; and see Lill v. Lill, 23 Bea. 446; fValmsley v. Foxhall, 1 D., J. & S. 605), though there would seem not to be much difference between Jones v. Randall and cases of that class and Cranswiek v. Pearson, ante, p. 15, and cases of that class. When charged upon property. General trust. To be paid out of rents. Gift of residue after pa3'ment of annuity. Payable out of Corpus or Income.] It frequently be- comes an important question, and sometimes a difficult one to determine, whether, in the event of the income of a fund becoming insufficient to pay the annuity, the annuitant has a right to resort to the capital fund or corpus itself to make good the deficiency. In the absence of any special direction in the will, the general rule on the subject is, that when the annuity is charged upon real {Picard v. Mitchell, 14 Bea. 103 ; Thornber v. Wilson, 4 Drew. 350) or personal {Gordon v. Bowden, 6 Madd. 342) property, the corpus will be liable if the income prove insufficient. The rule is the same where there is a general trust to apply the rents and profits of property in payment of the annuity. Foster v. Smith, 1 Ph. 632; see Forbes v. Rich- ardson, 11 Ha. 357. And where the annuity is to be paid out of rents, or disposal by valuation or auction of property {Howarth v. Rothwell, 8 Jur., N. S. 69), or out of rents as the same become payable {Foster v. Smith, sup.), or out of the income of residuary estate, and after the decease of the annuitant the fund to fall into the general residuary personal estate {Perkins v. Cooke, 2 J. & H. 393), or where the annuity is charged upon real estate, with powers of entry, distress and sale {Byam v. Sutton, 19 Bea. 536), it will be a charge on the corpus. So if the trusts of the will are to receive the rents and pay the annuity and raise a sum of money, and after performance of these trusts to assign over the premises, or so much as shall be undisposed of. Phillips V. Gutteridge, 4 D. & J. 531. And a direction to convert and invest enough to produce a certain annuity and pay it to A. for life, with a gift over of the residue, makes the annuity a charge on the corpus. Percy v. Percy, 35 Bea. 295 ; see Hickman v. Upsall, 2 Giff. 124 ; Prowett v. Prowett, 12 W. R. 819. So if the annuity is payable out of a fund to Payable out of Corpus or Income. 17 be provided by au investment for payment of it. May v. Bennett, 1 Euss. 370; Mills v. Drewitt, 20 Bea. 632; Wright V. CaUender, 2 D., M. & G. 652 ; see Miner v. Baldwin, 1 Sni. & G. 522. The rule is the same where there is a direction to pay it Gift over of out of income, and from and after the payment of the annuity the"i*uity!°' *" and subject thereto the capital fund is given over. Birch V. Sherratt, L. E., 2 Ch. 644; Prowett v. Prowett, 12 W. E. 819 ; comp. Salvin v. Weston, 12 Jur., N. S. 700. But where there was a devise to trustees in trust to pay an annuity out of rents, and subject to the trusts aforesaid the residue of the rents was given over, it was held that the annuity was not charged on the corpus. Sheppard v. Shep- pard, 32 Bea. 194 ; comp. Phillips v. Gutteridge, 4 D. & J. 531. And if an intention can be collected that the annuity Mere trust to pay is to be paid out of the rents and profits only as they arise "'" °' ''™''' or accrue, the annuity will not be a charge on the corpus. See 3Iiller v. Euddlestone, 3 Mac. & G. 513, 530; Salvin V. Weston, 12 Jur., N. S. 700 ; Clifford v. Arundell, 27 Bea. 209. Thus, if an annuity be given to be issuing and payable out of leaseholds and personalty, with power to recover by distress or sale, as rents are recoverable {Adde- cott V. Addecott, 29 Bea. 460), or out of the annual income of a given fund, the surplus income of the fund being given over during the annuitant's life and the residue of the fund after his decease (Stelfox v. Sugden, Johns. 234; see Bright V. Larcher, 3 D. & J. 148), the annuity will be chargeable on the income only. So where an intention appears, that intention that on the death of the annuitant the estate or property, the overTntacTto ^° income of which is applicable to the payment of the annuity, person in remain- shall go over intact and not subject to any arrears. Foster ^' V. Smith, 1 Ph. 629 ; Earle v. Bellingham, 24 Bea. 445 ; Baker v. Baker, 6 H. L. C. 616; see Sheppard v. Shep- pard, 32 Bea. 194. Where a sufficient sum is directed to be set apart to pro- Direction to ap- duce the annuity and a fund is designated for the puipose, to°an'swlr!""'^ but is insufficient ( Wright v. CaUender, 2 D., M. & G. 652; Miner v. Baldwin, 1 Sm. & G. 522), or the fund set apart Fund becoming becomes insufficient by reason of a reduction of interest "^"®™"'- arising from the conversion of government stock or other- wise {May V. Bennett, 1 Euss. 370; Mills v. Drewitt, 20 Eeciuction under Bea. 632; Upton -f. Vanner, 1 Dr. & S. 594; Brayne v. "ct of parliament. Rees, 15 W. E. 195), the corpus is liable to make good the deficiency. But where there is a direction to invest a specific sum, the interest to be paid to one person for life, with re- mainder, as to the corpus of the fund, to others, and the rate of interest is reduced by act of parliament, the annuitant 18 On what Property a Charge. Deficiency not made good on death of one ten- Dant in common out of Ills sliare. Acquiescence in receipt of reduced annuity. Interest on arrears. must submit to the abatement, and cannot come on the corpus. Att.-Gen. v. Poulden, 3 Ha. 554; Mills v. Drewitt, 20 Bea. 632. Under a gift of an annuity to several, with, on the death of any, a gift over of his share, if there has been a deficiency so that the annuitants have not been paid in full, on the death of one, his share is not available to make good the deficiency, but devolves at once on the legatee in remainder. Scott V. Salmond, 1 M. & K. 363 ; see Farmer v. Mills, 4 Euss. 86 ; Arnold v. Arnold, 2 M. & K. 374 ; Att.-Gen. v. Poulden, 3 Ha. 555. Where an annuity is payable out of the corpus in the event of the interest being insufficient, if the annuitant accept during his life payment of a reduced annuity, with- out claiming to have the deficiency made good out of the capital, which he allows to be dealt with upon the footing that it is not liable, his representatives will be estopped from any claim. Upton v. Vanner, 1 Dr. & Sm. 594; comp. Mills V. Drewitt, 20 Bea. 632. In general, interest on arrears of annuities will not be allowed where the annuities have been unpaid by reason of debts or charges on the property. Torre v. Browne, 5 H. L. C. 577 ; Taylor v. Taylor, 8 Ha. 120 ; Mansfield V. Ogle, 4 D. & J. 38 ; Booth v. Coulton, 2 Giff. 514. wticfiier exciu- On what Property a Charge.^ With reference to annui- primarny°chargea ties as Well as legacies, the same questions may arise as to on property. their being specific, demonstrative, or general. (See tit. "Wills," where the cases are collected.) As a rule, be- quests of annuities, or money to purchase annuities, are only general. Alton v. Medlicott, cited 2 Ves. sen., p. 417. But if the annuity be specifically given out of either land or the rents of land, or other specific fund, and the property or fund on which it is charged fails, the annuity will fail, as where it is given and charged upon and to be issuing and payable out of real estates. Creed v. Creed, 11 CI. & F. 491; see Dichin v. Edwards, 4 Ha. 273. And an annuity may be demonstrative, that is, primarily payable out of an estate or fund, but secondarily out of the general estate, so that on failure of the first fund the annuity fails on the other. Mann v. Copland, 2 Madd. 223 ; see Atttcafer v. Attwater, 18 Bea. 330; Paget v. Hnish, 1 H. & M. 663. As to the abatement of annuities, see tit. "Wills." Wlien specific. Demonstrative. Commencement Commencement and Payment q/".] Annuities as a rule payment'.'"'^ commence from the death of the testator, and the first pay- Commencement and Payment of. 19 ment becomes due and is to be made one year after his death, no other time of payment being fixed. Gibson v. Bott, 7 Ves. 89 ; see Colli/er v. Ashburner, 2 De G. & S. 404. Where the testator directs the annuity to be paid quarterly or monthly, the first payment to be made at the end of a quarter or month after his death, it will be payable at that time accordingly. Houghton v. Franklin, 1 S. & S. 390 ; Storer v. Prestage, 3 Madd. 167. Although there may be a direction for payment of the first year's annuity within the year, the second year's annuity will not be due until the end of that year. Irvin v. Ironmonger, 2 R. & My. 531 ; see Stamper v. Pickering, 9 Sim. 176. An annuity to be raised out of property, which is rever- charged on rever- sionary but capable of being sold under a power of sale, ^'"""^ proper y. commences at the testator's death and may be raised by sale. Pettinger v. Ambler, 34 Bea. 542. If two or more Sevenii properties properties belonging to different persons are liable to the ""^ '^' " annuity, they contribute according to the income of the properties respectively de anno in annum, although their capitalized values may be very different : for instance, one being mining property valued at seven years' purchase, and another agricultural land valued at thirty years' purchase. Ley V. Ley, L. R., 6 Eq. 174. And an annuity charged on property in which there is a life estate in one with re- mainder to another, is a charge on both interests rateably according to their respective values. Yates v. Yates, 28 Bea. 637. As to the statutory bar to suits, &c. for the recovery of annuities, see tit. " Statute op Limitations." Purchase of Government Annuities.] It may not perhaps be out of place to mention that the 16 & l7 Vict. c. 45 (amended by 27 & 28 Vict. c. 43), now regulates the purchase of Government Annuities through the medium of savings' banks. c 2 ( 20 ) APPOETIONMENT. In general, irrespective of Statute 20 Interest, Dividends, S)0. 20 Annuities to Infants — Married Women . . 21 Rent 21 Lease hy Tenant in Fee —for Life .. ..21 Statutory Provisions . . 21 11 Geo. 2,0. 19 .. ..21 Ment payable to Tenant for Life — in Tail . . 21 Dower .. .. . . 22 Dividends .. , . 22 4^5 Will. 4, c. 22 . . . . 22 Rents — Bent Cliarnes — Annuities — Dividends 22 Lease after Act, under Forcer iefore .. . . 23 Farol Leases .. . . 23 Lease by Omner in Fee. . 23 4^5 Will. 4, c. 22— contd. Interests deterndning absolutely .. . . 23 Fixed periodical Pay- ments . . . • . . 24 Dividends .. ..24 33 # 34 Vict. c. 3S . . . . 24 Rents, S)C. deemed to ac- crue from Day to Day 24 Apportioned part pay- able nlien whole due . . 25 Remedies for recovering 25 Interpretation of Rents, Annuities, Dividends 25 Policies of Assurance . . 26 Express Stipulations . . 26 Alienation of fart of Pro- perty subject to entire Rent 26 Apportionment by Inclo- sure Commissioners .. 26 Interest. -^w general, irrespective of Statute.] Interest accruing de die in diem, is apportionable irrespective of the Appor- tionment Acts presently noticed, altliougli it may be ex- pressly made payable half-yearly or quarterly ( JVilson v. Harman, 2 Ves. sen. 673 ; Banner v. Lowe, 13 Ves. 135), as under a bond or mortgage (Edwards v. Ctss. Warwick, 1 B. P. C 210), or railway debentures or the like. Re Rogers^ Trusts, 1 Dr. & Sm. 338 ; see Ibbottson v. Elam, other payments. L. R., 1 Eq. 188. But in general, other payments coming due at fixed periods were not apportionable between the representatives of the person entitled for life, who died between two periods of payment, and the person becoming entitled on his death to the future payments. In such cases, there was no growing payment de die in diem, and nothing was due from the preceding day of payment until the next day of payment, when the whole bec.nme due. Dividends, &c. Thus the dividends of money directed to be laid out in land and temporarily invested were not apportionable. Sherrard V. Sherrard, 3 Atk. 502. Apportionment ojf Interest. 21 Nor was an annuity in general apportionable, unless given Annuities to in- fer the maintenance of an infant {Hay v. Palmer, 2 P. W. '™'^' 501 ; see £x parte Smyth, 1 Sw. 349, n.), or granted to a and married married woman living separate from her husband {Howell "■°™™- V. Hanforth, 2 W. B. 1016), but otherwise if living with and supported by him. Anderson v. Dwyer, 1 Sch. & L. 301 ; 1 Sw. 350, n. In some cases also the income of a charitable fund was, and is, irrespective of the Apportion- ment Acts, liable to be apportioned between a deceased member of the class entitled to such income and his suc- cessor. Att.-Gen. v. Smythies, 16 Bea. 385. With reference to rent, there was in general no apportion- Rent, ment. Thus, on the death of a lessor seised in fee, there Lense by owner was no apportionment between his real and personal repre- in fee; sentatives. It made no difference that the rent was reserved to the lessor, his executors, administrators and assigns. In such cases the heir or devisee took the rent accruing subse- quently to the lessor's death (Co. Lit. 47 a) ; but the executor was entitled to arrears accrued in his testator's lifetime (3 Bac. Ab. 63), but not to rent which accrued due on the very day of his death, for rent is not completely due until mid- night {Leftley v. Mills, 4 T. R. 173), though dividends on stock are, and if the tenant for life die on the day they become due his executor will be entitled to them. Paton v. Sheppard, 10 Sim. 186; see Wright y. Tuckett, 1 J. & H. •266. Where a tenant for life made a lease under a power by tenant for iiie reserving rent, and died between two quarter days, or other uoaer'a^power. periods of payment of rent, the rent accruing due on the quarter, or other day of payment, after his death was pay- able to the remainderman {E. Strafford v. Lady Wentworth, 1 P. W. 180) ; but, in such cases, where the lease was not under a power no rent was payable, either to the remainder- man or to the executors of the tenant for life, from the pre- ceding day of payment up to his death. Jenner v. Morgan, 1 P. W. 392. Various acts of parliament have been passed for remedy- statutory pro- ing the inconveniences occasioned by these principles of law. ^ °™' The statute which henceforth will regulate all questions of apportionment is the 33 & 34 Vict. c. 35 (1st August, 1870), which will be stated hereafter. The previous acts, however (which are not repealed), and the more important decisions upon them, may be found useful. They have accordingly, though very briefly, been referred to. 11 Geo. 2, c. 19.] By this act the right was given to the Bent payawe to executors or administrators of the tenant for life, in cases ts^iitforine; where the lease determined by his death, to recover the pro- 22 11 Geo. 2, c. 19. Dower appor- tionable. Ecnts deter- mintlig on death. Kents, rent- charges, annuities, dividends, &c. ap- portiODable. portionate part of the rent from the last day of payment up to his death, or the whole if he died on the day it became due (s. 15). For a case to fall within this act it was neces- sary that the lease should determine by the death of the tenant for life. Mills v. Trumper, L. R., 4 Ch. 320. A tenant in tail granting a lease which is void against the remainderman has been held to be within the act. Whit- field V. Pindar, cited 8 Ves. 311 ; Paget v. Gee, cited 3 Sw. 694; Kevill v. Davies, 15 Sim. 466. So a tenant for life, having a leasing power, but not properly executing it, as where he demises by parol instead of by deed. Ex parte Smyth, 1 Sw. 337. As to a tenant pur autre vie, see Wykham v. Wyhham, 3 Taun. 316; Mills v. Trumper, L. E., 1 Eq. 671; 4 Ch. 320. This act applies in the case of lands of an intestate, subject to dower, being purchased under the compulsory powers of an act of parliament, one-third of the purchase-money being invested in the funds to meet the dower, and the representa- tives of the widow are entitled to an apportionment. Harrop V. Wilson, 34 Bea. 166. But this act does not apply to dividends and other periodical payments of the hke nature. Michell V. Michell, 4 Bea. 549. 4 <^ 5 Will. 4, c. 22.] By the 4 & 5 Will. 4, c. 22, s. 1 (16 June, 1834), it is in substance enacted that rents reserved on leases of any lands, tenements or hereditaments which have been and shall be made, determining on the death of the person making them (though not strictly tenant for life), or on the death of the life or lives for which such person was entitled to such hereditaments, shall, so far as respects the rents reserved and the recovery of a proportion thereof by the person granting the same, his executors or administrators (as the case may be), be considered as within the provisions of the 11 Geo. 2, c. 19. By section 2, rents reserved on any lease by a tenant in fee, or for any life interest, or by any lease granted under any power, rent-charges and other rents, annuities, pensions, dividends, moduses, compositions and all other payments of every description in the United Kingdom made payable or coming due at fixed periods under any instrument eT^ecut&di, or being a will coming into operation after the passing of the act, are to be apportioned on the death of any person in- terested in any such rents, &c., or on the determination bv any other means whatsoever of his interest, between his re- presentatives and the person thenceforth entitled to the rent, &c. The act does not apply where there is an express stipula- 4 4-5 Tflll. 4, c. 22. 23 tion that there shall be no apportionment, nor to annual sums made payable in policies of assurance (s. 3). See Tyrrell v. Clarke, 2 Drew. 86. The act extends to Scotland. Fordyce Extends to Smt- V. Bridges, 1 H. L. C. 1 . But sections 2 and 3 are repealed as '""''' to Ireland so far as refers to the relation of landlord and tenant Tithe rent- in Ireland, not otherwise. (23 & 24 Vict. c. 154, s. 104). """■'^°- The provisions of the act are extended to rent-charges, payable under the Tithe Commutation Act, 6 & 7 Will. 4, c. 71, s. 86, and under the Copyhold Enfranchisement Act, 4 & 5 Vict. c. 35, s. 50. Rents are apportionable as between successive tenants in Tenants in tail. tail. Kevill v. Davies, 15 Sim. 456. The act applies to rents reserved by lease granted after Lease after act the passing of the act under a power in a settlement executed "oreTh^act ''°" before the act [Lock v. De Burgh, 4 De G-. & Sra. 470; Plummery. Whiteley, Johns. 585; Wardroper v. Cuffield, 10 Jur., N. S. 194 ; Llewellyn v. Rous, L. R., 2 Eq. 27 ; see Fletcher v. Moore, 3 Jur., N. S. 458, explained in Ward- roper V. Cutfield, sup.) and to a tithe rent-charge payable under an award made under the 6 & 7 Will. 4, c. 71, where the life interest and interest in remainder in the tithes had been given by a will made before the 4 & 5 Will. 4, c. 22. Heasman v. Pearse, L. R., 8 Eq. 599. This act does not apply to rents payable under parol Act docs not agreements. Re Markby, 4 M. & Cr. 484; Cattley v. 2'/,.'°"'"^°' Arnold, 1 J. & H. 651; Mills v. Trumper, L. R., 4 Ch. 320 ; comp. Kevill v. Davies, 15 Sim. 466 ; see now 33 & 34 Vict. c. 35, s. 2, post. There is no apportionment under either nor leases by the act of Geo. 2 or Will. 4 between the executors or ad- °i^'"=r"i'i=ej ministrators and heir of lessor owner in fee. Browne v. Amyot, 3 Ha. 173; Beer v. Beer, 12 C. B. 60; Re Chilow, 3 K. & J. 689. The words of the act "rents reserved in a nor interest lease granted by a tenant in fee" apply to a case where the ^eteiniiae."'"''^'^ owner in fee, after granting a lease, gives by settlement, will or otherwise a life estate in the property subject to the lease, and other similar cases where the interest of the person entitled determines at his death. See Browne v. Amyot, 3 Ha. 182; Re Chilow, 3 K. & J. 694. The act applies to an annuity charged on stock ( Carter v. Tag g art, 16 Sim. 447; Tyrrell v. Clark, 2 Drew. 86; see Sheppard v. Wilson, 4 Ha. 395), but not to an annuity or other payment absolutely determining by death or other- wise : for instance, a salary payable to an auditor during the joint lives of himself and his employer. Lowndes v. E. Stamford, 18 Q. B. 439; see Reg. v. Lords of the Treasury, 16 Q. B. 357; Leathley v. French, 8 Tr. Ch. R. 401. But in Trimmer v. Danby, 23 L, J., Ch. 979, where an an- 24 4Sf5 Will. 4, c. 22. rlxed periodical piiymcnts. Dividends. Sale of stock. nuity had been granted by will to A., the first payment of which, was, by the direction of the court, to be made one year after the testator's death, and A. died just before the end of the year, it was held that the annuity was apportion- able, although it absolutely ceased at A.'s death. See now 33 & 34 Vict. c. 35, s. 3, post. Dividends declared by joint stock companies subject to the Companies Clauses Consolidation Acts are not due at fixed periods within the meaning of the act of Will. 4, though dividends directed to be paid at specified periods under a deed of settlement are (Re Maxwell's Trusts, 1 H. & M. 610; see Martlet/ v. Allen, 4 Jur., N. S. 500); but not a specific single sum of money by resolution directed to be divided among the shareholders (lb.) ; nor royalties in the nature of rents payable at uncertain periods ( St. Aubyn v. St. Aubyn, 1 Dr. & S. 611); aliter, if at certain periods. Llewellyn v. Rous, L. E., 2 Eq. 27;-see now 33 & 34 Vict. c. 35, ss. 2, 5, post. Where stock is sold (or even securities carrying interest de die in dieni) between dividend days, the court will not apportion the proceeds of sale so as to give a tenant for life the value of the current dividend included in the proceeds of sale. Scholejieldv. Redfern,2 Dr. & Sm. 173; Freman v. Whitbread, L. R., 1 Eq. 266. In a case where lands subject to a settlement made before the 4 & 5 Will. 4, c. 22, were taken by a railway company under the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18, and the dividends of the funds in which the purchase- money was invested were ordered to be paid to the tenant in possession, it was held that the act did not apply to the divi- dends, and that the orders of the court were not instruments within the meaning of the act. Re Lawton's Estates, L. R., 3 Eq. 469 ; comp. Harrop v. Wilson, 34 Bea. 166 ; Jodrell V. Jodrell, L. R., 7 Eq. 461. 33 Sf 34 Vict. c. 35.] The operation of the preceding acts has been superseded for the future by the 33 & 34 Vict. c. 35, (1st August, 1870,) which, after reciting the prior acts (though it does not repeal them), is as follows : — Short title. " 1. This act may be cited for all purposes as 'The Ap- portionment Act, 1870.' Kents and pe- " 2. From and after the passing of this act all rents, Bhaii'^crae'from annuities, _ dividends, and other periodical payments in the day to day and be nature of income (whether reserved or made payable under rrapect°oA'ime° ^n instrument in writing or otherwise) shall, like interest mi money lent, be considered as accruing from day to day, and shall be apportionahle in respect of time accordingly. 33 4- 34 Vict. c. 35. 25 " 3. The apportioned part of any such rent, annuity, divi- Apportioned part dend, or other payment shall be payable or recovei-able in ^e myaWewiien the case of a coutinuiiig rent, annuity, or other such pay- the next entire ment when the entire portion of which such apportioned beo.medue.'''''™ part shall form part shall become due and payable, and not before, and in the case of a rent, annuity, or other such payment detei'mined by re-entry, death, or otherwise, when the next entire portion of the same woidd have been pay- able if the same had not so determined, and not before. "4. All persons and their respective heirs, executors, ad- Persons simii ministrators and assigns, and also the executors, adminis- reml^les fo™r° - trators and assigns respectively of persons whose interests covering appor- determine with their own deaths, shall have such or the i^°^^^ portions. °' same remedies at law and in equity for recovering such ap- portioned parts as aforesaid when payable (allowing pro- portionate parts of all just allowances) as they respectively would have had for recovering such entire portions as afore- said if entitled thereto respectively ; provided that persons Proviso as to liable to pay rents reserved out of or charged on lands or certatn'^rasea.* '" other hereditaments of any tenure, and the same lands or other hereditaments, shall not be resorted to for any such apportioned part forming part of an entire or continuing rent as aforesaid specifically, but the entire or continuing rent, including such apportioned part, shall be recovered and received by the heir or other person who, if the rent had not been apportionable under this act, or otherwise, would have been entitled to such entire or continuing rent, . and such apportioned part shall be recoverable from such heir or other person by the executors or other parties en- titled under this act to the same by action at law or suit in equity. " 5. In the construction of this act — interpretation ot "The word 'rents' includes rent service, rent-charge, '"""• and rent seek, and also tithes, and all periodical pay- ments or renderings in lieu of or in the nature of rent or tithe. " The word ' annuities' includes salaries and pensions. " The word ' dividends ' includes (besides dividends strictly so called) all payments made by the name of dividend, bonus, or otherwise out of the revenue of trading or other public companies, divisible between all or any of the members of such respective com- panies, whether such payments shall be usually made or declared at any fixed times or otherwise ; and all such divisible revenue shall, for the purposes of this act, be deemed to have accrued by equal daily incre- ment during and within the period for or in respect of 26 Alienation of Property. Act not to apply to policies of assurance ; nor where stipu- lation made to the contrary. Apportionment by inclosure commis- sioneis. ■which the payment of the same revenue shall be de- clared or expressed to be made, but the said word 'dividend' does not include payments in the nature of a return or reimbursement of capital. " 6. Nothing in this act contained shall render apportion- able any annual sums made payable in policies of assurance of any description. " 7. The provisions of this act shall not extend to any case in which it is or shall be expressly stipulated that no ap- portionment shall take place." The act appears to extend to periodical payments under instruments in force before the passing of the act, but only in respect of time subsequent to the act. Alienation of Part of Property subject to entire Rent.'\ If part of the property subject to one entire rent be aliened by the lessor, an apportionment of the rent is to be made. Co. Litt. 148 a. If not made with the tenant's consent, the assignee of part, though he may distrain for the apportioned rent {Walter v. Maunde, 1 J. & W. 188), or bring an action for it, can only recover what upon a just appor- tionment a jury shall find to be due. Bac. Ab. Rent, M. 3 ; Bliss V. Collins, 1 B. & Al. 876. Where the tenant aliens part of the demised property, he and the assignee can make no apportionment binding on the lessor. See TValter v. Maunde, sup.; Paterson v. Long, 6 Bea. 590. This often creates a difficulty in the disposal to several purchasers of property held under one lease. Where property subject with other property to one rent is taken under the Lands Clauses Consolidation Act, 1845, the rent will be appor- tioned (s. 119). Under this section it is not the duty of the lessee, but of the company, to procure the lessor's con- sent to the apportionment. Slipper v. Tottenham, S^c. R. Co., L. R., 4 Eq. 112. Under the 17 & 18 Vict. c. 97, the inclosure commis- sioners have powers in certain cases to apportion fee farm rents, rent seek and of assize or chief rents; and after the order for apportionment the lands will be chargeable only to the extent and in the manner directed in the order (ss. 10—14). ( 27 ) ASSETS. Ch. 1. — Op Assets in general, p. 27. Ch. 2. — Legal and Equitable Assets, p. 31. Ch. 3. — Oedee of Liability of Assets to Debts and of Peioeity of Debts, p. 33. Ch. 4. — Of Maeshalling Assets, p. 36. CHAPTER I. OP assets in geneeal. General Rvles as to Liah'ilUy of Property to Payment of JDehts 27 Assets 27 Liability of Real Estate at Common Lam to Delts 28 Sir S. Romilly's Act, 47 Geo. 3, c. 74 . . . . 28 3 # 4 Will. 4, c. 104 , . 28 Charge by Testator . . 29 32 ^- 33 Vict. c. 46 . . 29 Wltat amounts to Cliarge hy Testator .. . . 29 Words " In the first place," ^'c, not neces- sary .. . . . . 29 General Charge not re- General Rules, ^'0. — contd. stricted by specific Charge.. 30 Or Direction that par- ticular Property shall be applied .. . . 30 Directi.on for Payment by Exeentors . . . . . . 30 Prima facie Realty not charged .. . . 30 Unless Real Estate de- vised to them benefi- cially .. .. . . 30 Operation of 22 ^ 23 Vict. 0.^5 .. . . 31 Meaning of word Debts 31 Does not extend to Debts barred by Statute . . 31 General Rules as to Liability of Property to Payment Assets. of Debts.'] Assets, from awe^, the heir under the old law being only bound to pay his ancestor's debts so far as he had lands descended sufficient for that purpose (2 Blac. 244), may now be said to comprise all a testator's or intestate's property, real and personal, and which is now available for payment of his debts of every description. His personal 28 J^iahility to Payment of Debts. Liability of real estate at common law to debts. Sir S. Eomilly'a Act, a Geo. 3, c. 74. 3 & 4 Will. 4, c 104. property was always liable (Wms. Exors. 1530), but his real estate has become subject to such liability only, com- paratively speaking, of late years, and by degrees. It is true, indeed, that at common law, at all events from the reign of Edw. I. (see J. Wms. R. Prop. 75), real estate (except copyholds) devolving on the heir was liable to spe- cialty debts where the heir was expressly named, but not to other debts. Afterwards the devisee was made liable. By the 3 & 4 W. & M. c. 14, it was enacted, that devises, unless for payment of debts, should be fraudulent and void as against specialty creditors where the heir was bound, and that the devisee should be liable jointly with the heir on a specialty recoverable by action of debt. See Spackman V. Timbrell, 8 Sim. 253. The 47 Geo. 3, c. 74 (Sir Samuel Romilly's Act), enacted that if a debtor was at the time of his death liable to the bankrupt laws, his freehold estates should be subject to his simple contract debts. These acts were repealed by the 1 Will. 4, c. 47, their principal provi- sions, however, being amended and re-enacted by that act. The 3 & 4 Will. 4, c. 104, was still more beneficial to creditors. By this it was enacted, that after the 29th of August, 1833, when any person should die seised of or entitled to any estate or interest in lands, tenements or here- ditaments, corporeal or incorporeal, or other real estate, whether freehold, customaryhold or copyhold, which he should not by his last will have charged with or devised subject to the payment of his debts, the same should be assets to be administered in courts of equity for the pay- ment of the just debts of such person, as well debts due on simple contract as on specialty, and that the heir-at-law, customary heir and devisees of such debtor should be liable in equity, at the suit of any of the creditors, whether by simple contract or by specialty as the heir-at-law or devisees were therefore liable to in respect of freehold estates at th-e suit of the creditors by specialty, in which the heirs were bound : provided that, in the administration of assets by courts of equity under the act, all creditors by specialty, in which the heirs were bound, should be paid the fuU amount of their debts before creditors by simple contract or by specialty, in which the heirs were not bound, should be paid any part of their demands. By this act, therefore, copyhold estates were made liable, and the distinction between persons liable and not liable to the bankrupt laws was abolished, but the priority of specialty debts binding the heir was still reserved to them. See Homer's Dei'isccs Case, 2 D., jSI. & G. 366. The rules and doctrines of equity, however, where a testator had subjected his property to the payment of his Liability to Payment of Debts. 29 debts, remained unufi'ected (see Shaw v. Borrer, 1 Kc. ciiarge by testator. 559 — 577); for these acts did not interfere with testamen- tary dispositions providing for the payment of debts (whether simple contract or specialty), and in such case the estate was assets in equity for the payment of all a testator's debts pari passu without priority on the part of debts of one kind over those of another. The distinction between legal and equitable assets will be pointed out in the next chapter. This principle of equity has now been adopted by the legislature, and has been made for the future the rule in every case. This is by the 32 & 33 Vict. c. 46, a short act of two sections only, which are as follows : — In the 32 & 33 vict. administration of the estate of every person who shall die °'*^' on or after the 1st day of January, 1870, no debt or lia- bility of such person shall be entitled to any priority or Distinction preference by reason merely that the same is secured by or emiUabieSsei^"'^ arises under a bond, deed or other instrument under seal, or abolished. is otherwise made or constituted a specialty debt, but all the creditors of such person, as well specialty as simple con- tract, shall be treated as standing in equal degree and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable, any statute or other law to the contrary notwithstanding: provided always, that this act shall not prejudice or affect any lien, charge or other security which any creditor may hold or be entitled to for the payment of his debt (s. 1). The act does not extend to Scotland (s. 2). In many cases, however, the administration of assets must still be governed by the rules previously existing. The 3 & 4 Will. 4, c. 104, as already mentioned, does not apply where the testator has charged or subjected his property to the payment of his debts. See Ball v. Harris, 4 M. & C. 268. With respect to what words in a will what constitutes are sufficient to constitute such a charge, the general rule L'^'^^'^ °' '^"^^ is, that whenever a testator directs in terms, however general, that his debts shall be paid, not saying by his executors (see post, p. 30), and afterwards disposes of his real estate, the real estate is liable in aid of the personalty (Shallcross v. Finden, 3 Ves. 738; Graves v. Graves, 8 Sim. 55; Cook v. Dawson, 29 Bea. 123; consider Symons v. James, 2 Y. & C. C. C. 301, and the observations on it in Harris v. IVathitis, Kay, 447); and it is not necessary that worts "in the the direction to pay should be coupled with such words as " in .",!'Jl!?°t;".. i.„ , 11-1/ y~Y y~» imprillllS, OuL. the first place, " imprimis, or the like ( Graves v. Graves, not necessary. sup.; Harding v. Grady, 1 Dr. & War. 430; Cook v. Daw- son, sup.), though in many early cases much stress was laid upon them, and they were considered important if not essen- 30 Direction for Payment by Executors. General charge not restricted by specific charge ; or direction that particular pro- perty shall he applied. Devise of realty and bequest of personalty after payment of debts. tial (see Ronalds v. Feltham, T. & R. 418 ; Douce v. Ld. Torrington, 2 M. & K. 600; as to the last case see Shaw V. Borrer, 1 Ke. 567, n. (6)); and, as a general i-ule, a general charge will not be restricted or limited merely because it is followed by specific charges of different sums on different estates or property ( Taylor v. Taylor, 6 Sim. 246 ; Jones V. Williams, 1 Coll. 156), or by a direction that particular property shall be applied in payment of the debts (^Coxe v. Bassett, 3 Ves. 155; see Wrigley v. Sykes, 21 Bea. 337); for the rule is, that the presumption arising from the general charge is not to be repelled by anything short of clear and manifest evidence of a contrary intention {Price v. North, 1 Ph. 85 ; Forster v. Thompson, 4 Dr. & War. 303); as if, after a general direction to pay debts, the testator expressly charges part of his realty with the payment of them, and excepts the rest, the implication arising from the general charge will be controlled. Thomas v. Britnell, 2 Ves. sen. 313 ; Palmer v. Graves, 1 Ke. 545. A devise of realty, followed by a bequest of personalty, after payment of debts, is consti-ued as charging the realty as well as the personalty. Withers v. Kennedy, 2 M. & K. 607 ; see Jones v. Price, 11 Sim. 557 ; Preston v. Preston, 2 Jur., N. S. 1040. So a direction to convert the realty, the proceeds to be held upon the trusts of the personalty, followed by a bequest of the personalty after payment of debts, makes such proceeds liable to the debts. Soames v. Robinson, 1 M. & K. 500 ; Shakels v. Richardson, 2 CoU. 31 ; cons. Bright V. Larcher, 3 D. & J. 148. Prima facie realty not charged ; unless real estate devised to them. Direction for Payment by Executors.^ As a general rule, when executors are directed to pay the debts, no realty being devised to them, the real estate of the testator is not charged, the presumption being that the debts are to be paid out of the personalty coming to them as executors (Powell V. Robins, 7 Ves. 209 ; Willan v. Lancaster, 3 Euss. 108 ; see Wisden v. Wisden, 2 Sm. & G-. 396) ; but otherwise where real estate is devised to them bene- ficially {Henvell v. Whitaher, 3 Euss. 343 ; Cross v. Ken- nington, 9 Bea. 150 ; Gallimore v. Gill, 2 Sm. & G. 158 ; Parker v. Fearnley, 2 S. & S. 592, contra, is overruled; Preston v. Preston, 2 Jur., N. S. 1040), or to them as executors with a direction to pay debts. Dormay v. Bor- radaile, 10 Bea. 263 ; Hartland v. Murrell, 27 Bea. 204. But where there is a devise, though of the fee, to one only of two or more executors, his estate will not be charged ( Warren v. Davies, 2 M. & K. 49), unless the devise be, expressly, subject to the payment of debts. Dowling v. Hudson, 17 Bea. 248. Legal Assets. 31 As to the operation of a charge of debts in giving a power operation of 22 & of sale see 22 & 23 Vict. c. 35. See tit. " Poweks." ^^ "^'°'- "■ '^■ Under the word debts are comprised all debts and liabili- Meaning of worj ties of the testator, which his personal estate would be liable "'^'^'''s-" to discharge in the hands of his executors (see Lomas v. Wright, 2 M. & K. 769 ; Stone v. Parker, 1 Dr. & S. 212 ; " Alsop V. Bell, 24 Bea. 469), whenever and wherever con- tracted. Maxwell v. Maxwell, L. R., 4 H. L. 506. A trust or charge for payment of debts will not extend to noes not extend debts barred by the Statute of Limitations. Burke v. Jones, ^^^'^ ^''"'^ ^^ 2 V. & B. 275; Joel v. Mills, 7 Jur., N. S., Decretal Order, p. 39 1 . Where, however, a person has not by his will charged his property with the payment of his debts, or when he has died intestate, and the 32 & 33 Vict. c. 45 (p. 29), does not apply, the case is governed by the 3 & 4 Will. 4, c. 104, which provides for the payment of certain specialty debts before other specialty and simple contract debts. The questions arising in consequence are considered in the following chapters. CHAPTER II. LEGAL AND EQUITABLE ASSETS. Legal Assets .. .. ..31 Property vesting in Ex- ecutor virtute officii . . 31 A dnii ni'stcred acom'ding to priority at Law . . 31 General Personal Estate 32 Equities of Redemption 32 Proceeds of Sale . . . . 32 EguitaMe Assets . . . . 32 Wliatare .. ..32 Equitalile Assets— contvanei. Devise of, or Charge on Lands for Payment of Debts 32 Administered irrespec- tive of Legal Priority 32 Equities between Speci- alty and other Credi/- tors 32 Lam of Foreign Country 33 Legal Assets.\ The distinction between legal and equit- able assets has already been adverted to, and this distinc- tion must still for some time to come be in many cases very important where the recent act does not apply. Legal assets comprise everything which an executor takes Property vesting virtute officii, and which would be liable in an action at law v'lrtue'onito''^ against the executor, although he may not be able to recover office, them without the aid of equity. Cook v. Gregson, 3 Drew. 547; Shee v. French, ib. 716; Att.-Gen. v. Brunning, 8 H. L. C. 256, 264 ; Mutlow v. Mutlow, 4 D. & J. 539. Such assets must be administered, having regard to the Are administcrca priority of debts at law {post, Ch. III.). SXlttw. 32 Equitable Assets. General personal estate. Equities of re- demption. Thus the general personal estate of the deceased vesting in the executor or administrator is legal assets ( Wms. Exors. 1530). The equity of redemption of a mortgage of a sum of money charged on real estate {Cook v. Greg son, sup.), and the equity of redemption of a mortgage of freehold or copyhold lands since the 3 & 4 Will. 4, c. 104, are legal assets. Foster v. Hundley, 1 Sim., N. S. 200 ; consider Lovegrove V. Cooper, 2 Sm. & G. 271 ; Burrell v. Smith, L. R., 9 Eq. 443. So it would seem is the equity of redemption of a term of years. Cook v. Gregson, sup. ; but see Barker v. May, y B. & C. 493. The surplus proceeds of the sale, by the court, of lease- holds for lives mortgaged by the testator, are legal assets. Christy v. Courtenay, 26 Bea. 140. So money paid by the Proceeds of sale in executors into court, and the proceeds of realty directed by the court to be sold. Lovegrove v. Cooper, sup. So a settled fund of personalty paid into court by the trustees of the settlement {Mutlow v. 3Iutlow, 4 D. & J. 539), and the proceeds of the sale of real estate contracted to be sold by the testator himself. Att.-Gen. v. Brunning, 8 H. L. C. 243. some cases. I>evise of lands for payment of debts. Charge of land with debts. Equities between specialty and other creditors. Equitable Assets.} Equitable assets are administered in equity irrespective of the legal priority of one kind of debt over another. Such assets arise in various ways. They will be created by a devise of land for payment of debts. So assets are equitable if they are of such a nature that they can only be reached in a court of equity. A devise of land though to executors, for payment of debts, or a charge of land with debts, the executors having a power of sale, makes the land equitable assets {_Silk v. Prime, 1 Dick. 384; 1 B. C. C. 138 n.; ShiphardY. Lutwidge, 8 Ves. 26 ; Lowe v. Peskett, 16 C. B. 500); though there are some earlier cases contra. See 1 Ver. 63; 2 Ver. 133, 248. The rule wiU be the same notwithstanding a direction that the proceeds of the real estate ghall be deemed to be personal estate, and that debts shall be paid out of such pro- ceeds, and the proceeds of other personal estate, for this will not convert the proceeds of the realty into legal assets. Soames v. Robinson, 1 M. & K. 500; ShakellsY. Richard- son, 2 Coll. 31. The assets of a deceased married woman, having separate estate, are equitable Anon., 18 Ves. 258 ; see Owens v. Dickenso/i, Cr. & Ph. 48. Specialty creditors, who have been partly paid out of legal assets, have no claim upon equitable assets until the other creditors, who can only be paid out of the latter, have first Order of Liability of Assets to Debts. 33 received a part equal to what the specialty creditors have received. Sheppard v. Kent, 2 Ver. 4;j5 ; Deg v. Deg, 2 P. W. 416 ; Chapman v. Esgar, 1 Sm. & G. 575. A debt contracted by an Englishman living abroad does Rule as to equit- not entitle the foreigner, by reason of any particular law afle'cteT^taw of of his own country, to claim priority in payment of his debt a toreiga country. out of a fund which by the law of this country is equitable assets. Pardo v. Bingham, L. R., 6 Eq. 485. The 32 & 33 Vict. c. 46, ante, p. 29, must now be constantly borne in mind in considering questions as to legal and equitable assets. CHAPTEE III. OSDER OF LIABILITT OP ASSETS TO DEBTS AND OP PRIORITY OP DEBTS. Order of lAability of Assets to Debts 33 1. General Personal Estate .. ..33 2. Lands devised for Payment of Debts.. 33 3. Estates descending to Heir .. ..34 4. Property given, but subject to Debts . . 34 5. General pecuniary Legacies and Realty comprised in a Resi- duary Devise . . 34 Case of Hensman V. Fryer . . 34 6. Specific Legacies and Land specifically Devised .. . . 35 7. Property appointed under a Pomer , , 35 Order of Liability, l;c. — contd. Properties liable in same degree, contribute equally . . . . 36 Order of Priority of Debts . . 35 1. Crown Debts . . . . 35 2. Certain Statutory Debts .. ..35 3. Registered Judgments and Decrees . . 35 4. Recognizancesinrolled 36 6. Specialty Debts and Real.. .. ..36 6. Simple Contract Debts and Unregistered Judgments . . . . 36 7. Claims for Dilapida- tions ■. .. . . 36 8. Voluntary Obliga- tions .. . . 36 Order of Liability of Assets to Debts.] Subject to the directions of a testator as to the priority of liability to his debts of any particular part of his property, as a general rule it is liable to the payment of them in the following order: 1. Th'fe general personal estate not specifically be- i. General per- qneathed, unless exempted by express words or necessary so^i^ estate. implication {D. Ancaster v. Mayer, 1 B. C. C. 454 ; see post, tit. " Wills.") 2. Lands expressly devised 2. Lands devised for the payment of debts {Lanoy v. D. At hoi, 2 Atk. 444 ; *,''/i,^y'°™' <" Harmood v. Oglander, 8 Ves. 124 ; Phillips v. Parry, 22 W. D 34 Order of Liability of Assets to Debts. 3. Estates de- Bea. 279). 3. Estates descending to the heir {Harmood sending to heir. ^^ Oglatider, sup.). 4. Eeal or personal estate devised or but'subj^Mfto™"' bequeathed charged with debts, and subject thereto speci- <'«''ts. fically given over (8 Ves. 124; see Irvin y. Ironmonger, 2 R. & My. 631 ; Harris v. Watkins, Kay, 448 ; Wood v. .5. General pecn- Ordish, 3 Sm. St Gr. 125). 5. General pecuniary legacies* niarv legacies and , . , . .'t. .-.^ a-i-Li realty comprised and real estate comprised in a residuary devise rateably. devJe'""'"^ Hensman v. Fryer, L. R., 3 Ch. 420, in which case also the Lord Chancellor (Lord Chelmsford) decided that a resi- duary devise was still specific, as it was before the 1 Vict, c. 26. Mr. Joshua Williams, in his Treatise (1861) on Real Assets, pp. 35, 106, places next in the order of liability after pecuniary legacies lands comprised in a residuary devise; and this would seem to be quite accurate. Hmsmany. Fryer. "phe authority of Henstnan V. Fryer, however, as to the liability of general pecuniary legatees and residuary devisees to contribute rateably, may be doubted; and in the subse- quent case of Collins v. Lewis (L. R., 8 Eq. 708), V.-C. Stuart declined to follow Hensman v. Fryer. If, therefore, the order adopted by Mr. Joshua Williams be correct, class 5 must be considered as divided into two classes, the first comprising general pecuniary legacies, and the second and next in order of liability comprising real estate included in a Whether residuaiy rcsiduary dcvisc. Whether a residuary devise can still be derae is specific. (.Qugiijered as specific is a point of difficulty. The rule which prevailed before the 1 Vict. c. 26 (see Mirehouse v. Scaife, 2 M. & C. 695, and cases there cited), was that every devise, though residuary in terms, was specific in fact, and upon this ground it was held that a pecuniary legatee should not have the assets marshalled against a residuary devisee {lb.; see Clifton v. Burt, 1 P. W. 679 ; Keeling v. Brown, 5 Ves. 358). And Hensman v. Fryer, sup., is the decision of a court of appeal that since the act a residuary devise is still specific. (See further as to this point Eddels v. Johnson, I Giff. 22 ; Pearmain v. Twiss, 2 GiflT. 130 ; Clark v. Clark, II Jur., N. S. 820; Gibbins v. Eyden, L. R., 7 Eq. 371 ; and, contra, Dady v. Hartridge, 1 Dr. & S. 236 ; Barnwell V. Jremonger, ib. 242 ; Rotherham v. Rotherham, 26 Bea. 464 ; Bethell v. Green, 34 Bea. 302 ; Brownson v. Law- rance, L. R., 6 Eq. 1.) 6. Specific legacies and land spe- • There is perhaps a little ambignity in terming a general pecuniary legacy an asset, being in fact money payable out of assets. The meaning is, that if pecnuiary legatees are disappointed by the personal assets being exhausted in payment of debts, they are entitled as against the property mentioned in the second, third and fourth classes to have the assets marshalled {post), and to be satisfied out of such property. pointed under a power. Order of Priority of Debts. 35 cifically devised rateably. Long v. Short, 1 P. W. 403 ; e. specific legacies Tombs Y. Roch, 2 Coll. 490 ; Young v. Hassard, 1 Jo. & X'TeviTef ^' Lat. 466 ; Gervis v. Gervis, 14 Sim. 654, overruling Corne- wall V. Cornewall, 12 Sim. 298. As to land comprised in a residuary devise, see tlie cases ante, p. 34. As be- tween legatees of specific pecuniary legacies charged on land which is specifically devised subject thereto, the whole amount of contribution must be borne by the de- visees. Raikes v. Boulton, 29 Bea. 41. Lastly, real and 7. Property ap- personal estate which the testator appoints under a, general power. See Thompson v. Towne, 2 Ver. 319 ; Sainton V. Ward, 2 Atk. 172; Fleming v. Buchanan, 3 D., M. & G. 976 ; Hawthorn v. Shedden, 3 Sm. & G. 305. But this rule does not apply when the will is that of a mar- ried woman who appoints under a power, unless she has acted fraudulently in contracting debts. Vaughan v. Van- derstegen, 2 Drew. 165 ; Hobday v. Peters, 28 Bea. 354 ; Shattock V. Shattock, L, R., 2 Eq. 182 ; see 12 Jur., N. S., Pt. 2, p. 243. Where several properties, in the same degree liable to the Properties iiawe testator's debts, are given to different persons, such pro- aegreeconMbate perties contribute rateably according to their value {Heven- eiuauy. ingham v. Heveningham, 2 Ver. 355), whether the pro- perties charged are wholly of one kind or partly of one kind and partly of another {lb.; Irvin v. Ironmonger, 2 R. & My. 531; see, as to the contribution of several properties to the payment of an annuity, Ley v. Ley, L. R., 6 Eq. 174, ante, p. 19); and if real and personal estates are directed to be converted and the proceeds appKed in payment of debts and legacies {Roberts \. Walker, 1 R. & My. 752; Fourdrin V. Gowdey, 3 M. & K. 383) or legacies {Stocker v. Harbin, 3 Bea. 479 ; Satt v. Chattaway, ib. 576), both properties contribute rateably according to their values, and the sur- plus, if any, undisposed of results in proportion to the values of the respective properties to the parties respectively en- titled to the real and personal estate. Order of Priority of Debts.'] Subject to the payment of Administratton ot funeral and testamentary expenses (Wms. Exors. 906, 924), lesai assets. the order of priority of debts, where the assets are legal and the case is not governed by the 32 & 33 Vict. c. 46 {ante, p. 29), is as follows: 1. Crown debts (Wms. Exors. i. crown debts. 927). 2. Debts having priority by statute {Jb. 929). 3. Judg- 2- Debts under '. . i J? J J J ■ ■i_ • i .,? certain statutes. ments in courts ot record and decrees in equity against the j Kegistered deceased rateably, but if obtained against the executors judgments and according to priority. Dolland v. Johnson, 2 Sm. & G. ^'"'^^■ 301. If obtained against executors they need not be regis- d2 36 Marshalling Assets. 4. Recognizances enrolled. 5. Specialty debts ExorS. 941 and rentb. tered {Jennings v. Rig by, 33 Bea. 198), but if obtained against the deceased they must, or will beloug to the sixth class (post). 4. Recognizances when enrolled {Glynn v. Thorpe, 1 B. & Al. 158; Bothomly v. Fairfax, 1 P. W. 334), and statutes merchant and staple. These, however, have fallen into disuse. See further as to them, Wms. 5. Specialty debts for value, and rent, which are equal in degree (see Clough v. French, 2 Coll. 277 ; Vincent v. Godson, 4 D., M. & G. 546) ; and it makes no difference that specialty debts are payable in futuro if they are certain, but otherwise if they are contingent, in which case simple contract debts may be paid before them (Wms. o. simple contract Exors. 954; acc. yiiAiwsoM V. Gre^, 1 Sm. & G. 577). 6. Simple tered judgmenS?" Contract debts and unregistered judgments against the de- ceased debtor (23 & 24 Vict. c. 38, s. 3 ; Kemp v. Wad- dingham, L. E., 1 Q. B. 355) which are in equal degree. 7. Claims for dilapidations by an incumbent. Bryan v. Clay, 1 E. & B. 38 ; see Bisset v. Burgess, 23 Bea. 278. Lastly. Voluntary bonds {Rumsden v. Jackson, 1 Atk. 294; see Watson v. Parker, 6 Bea. 283 ; Dening v. JVare, 22 Bea. 184), unless assigned for value, when they rank as ordinary bonds. See Payne v. Mortimer, 4 D. & J. 447. As to voluntary simple contract debts, see Dawson v. Kearton, 3 Sm. & G. 191; Lewin on Trusts, 64, n. {h). With reference to the question whether assets are to be ad- ministered according to the law of their situs, where the testator dies domiciled in another country, see Wilson v. Lady Dunsany, 18 Bea. 293 ; Cook v. Greg son, 2 Drew. 286 ; Wms. Exors. 925. 7. Claims for dilapidations. 8. Voluntary bonds. CHAPTER IV. OF MARSHALLING ASSETS. What Marshalling is . . 36 Between Creditors . . . . 37 Legatees .. .. . . 37 Creditors and unpaid Vendor 37 Mortgagees and other Credi- tors and Legatees . . . . 37 Voluntary Qrantees . . . . 38 What marshalling AssETS are Said to be marshalled where there are two claimants, A. and B., and two funds, both of which are available for the claim of A., but only one for that of B. In this case either A. will be compelled to have recourse to the fund not available for B., or, if he has been paid out of it, B. will be allowed to stand in his place in respect of the other Marshalling Assets. 37 fuud, against which originallj' he had no claim. Aldrich v. Cooper, 8 Ves. 382; and see the observations of Lord West- bury, Dolphin V. Aylward, L. R., 4 H. L. 505. Thus in cases before the 3 & 4 Will. 4, c. 104, where Between creditors. there were specialty and simple contract creditors, and the former were paid out of the personal estate, equity marshalled the assets by permitting the latter to stand in the place of the former against the real assets. Gallon v. Hancock, 2 Atk. 436. So where there wei-e mortgagees of real estate, who were paid out of the personalty, simple contract creditors were allowed to stand in their place. Aldrich v. Cooper, 8 Ves. 381 ; Selby v. Selbi/, 4 Russ. 336. Assets will also be marshalled between legatees : as where Legatees. some legacies are charged on the real estate and others are not, and the personal estate is not sufficient to pay all. Bligh V. E. Darnley, 2 P. W. 619; Bonner v. Bonner, 13 Ves. 379; Mirehouse v. Scaife, 2 M. & Cr. 700. The same equity is applied in favour of legatees against the heir taking estates by descent, where specialty creditors have obtained satisfaction out of the personalty (Bowaman V. Reeve, Pr. Ch. 578; see Aldrich v. Cooper, sup.); but not against the heir taking by devise (Strickland v. Strick- land, 10 Sim. 374), nor against specific devisees. Clifton V. Burt, 1 P. W. 678. As to residuary devisees, see Keel- ing V. Brown, 5 Ves. 359 ; Mirehouse v. Scaife, 2 M. & Cr. 695; Hensman v. Fryer, L. R., 3 Ch. 420, ante, p. 34. If lands are devised for or charged with the payment of debts the assets will be marshalled, and legatees or annuitants will stand in the place of creditors who have been paid out of the personalty. Foster v. Cook, 3 B. C. C. 347 ; Richard V. Barrett, 3 K. & Jo. 289. And where a person has agreed to buy an estate, but dies Creditors and before the purchase is completed, and the purchase-money is ""p^* vendor. paid out of his personal estate, the creditors and pecuniary legatees of the purchaser are entitled to stand in the place of the vendor and with the benefit of his lien, whether the estate descends ( Trimmer v. Bayne, 9 Ves. 209; Sproute v. Prior, 8 Sim. 180) or is devised. Selby v. Selby, 4 Russ. 336; Emuss Y. Smith, 2 D. & Sm. 722; Birds v. Askey, 24 Bea. 618; Ld. LilfordY. Keck, L. R., 1 Eq. 347, overruling on this point Wythe v. Henniker, 2 M. & K. 635. So, if the miortgagee of an estate which descends or is Mortgagees and devised be paid out of the mortgagor's personal estate, and "egateea!""""*"* thereby exhausts it, the assets will be marshalled against the heir or devisee in favour of creditors or legatees, who will be allowed to stand in place of the mortgagee [Liitkins v. Leigh, Ca. t. Tal. 53; Forrester v. Ld. Leigh, Amh. 171 ; Middleton 38 Marshalling Assets. V. Middleton, 15 Bea. 450; Johnson v. Child, 4 Ha. 87); and this is quite irrespective of the 17 & 18 Vict. c. 113. See tit. " Wills." As to marshalling assets in cases of charity legacies, see tit. " Charity and Moetmain." Voluntary Where there is a voluntary settlement of property, and the grantor subsequently mortgages it with other property, the voluntary grantees are entitled to have the two properties marshalled, so as to throw the mortgage debt on that which is not settled. Hales v. Cox, 32 Bea. 118. grantees. ( 39 ) CHAEITY AND MORTMAIN. Ch. 1. — Superstitious and Charitable Uses and Trusts, p. 39. Sec. 1. — Superstitious Uses and Trusts, p. 39. Sec. 2. — Charitable Uses and Trusts, p. 40. Ch. 2. — Statute of Mortmain, p. 46. Ch. 3. — Charitable Trusts Acts, p. 58. CHAPTEE I. superstitious and charitable uses and trusts. Sec. 1. — Superstitious Uses and Trusts. Dispositions for, are void . . 39 I Prayers and Masses for the Soul 39 Dispositions of real or personal estate for superstitious Disposiaom are purposes are contrary to the policy of the law and void. ™'''- By an early statute (1 Edw. 6, s. 14) gifts to superstitious prayers ad uses then existing were expressly prohibited, such as gifts masses (or the for prayers and masses for the soul. Att.-Gen. v. Fish- mongers' Co., 5 M. 85 C. 11; and see West v. Shuttleworth, 2 M. & K. 684 ; Re Blundell, 30 Bea. 360 ; Heath v. Chapman, 2 Drew. 417. This statute applies to super- stitions of a particular description {Gary v. Abbott, 7 Ves. 495), and bequests for such purposes are void, and by the act go to the crown. Other bequests, however, which are void as being superstitious, but which are not within the act, go to the next of kin ( West v. Shuttleworth, sup.), though if the bequest be in part charitable, it either goes to in part charitable. the crown (5 M. & C. 15), or the crown may direct to what charity it shall be applied. De Themmines v. Bonneval, 5 Russ. 288. 40 Charitable and Religious Purposes. Sec. 2. — Charitable Uses and Trusts. Charitable Purposes enume- rated in 43 Blii. e. i . . 40 Religious Purposes and Doctrines .. . . . . 40 Dissenters — JRoman Ca- tholics — Jews . . . . 41 Church Purposes . . 41 Purposes of Charity and Benevolence . ■ . . 41 Widows— Orphans . . 41 Poor .. .. . . 41 Eospitals .. ..41 Improvement of Places 41 General Public Benefit 42 Releasing Prisoners . . 42 Educational Purposes . . 42 Schools, Bectureships, ^c. 42 Public, not Private Purposes 42 Certainty of Bequest . • 43 Bejuest must not be am- biguous . . . . 43 Doctrine of cy pr^3 . . 43 Court endeavours to sup- port Gift .. . . 43 Certainty of Bequest— conti. Where for Charitable XJses generally . . 43 Gift for speciflo Purpose which fails .. . . 44 Apportionment of Fund 44 Foreign Charities . . 44 Trust Funds to be applied according to Trust . . 44 Hospital Funds not for Lighting Town . . 44 Funds for Poor of one place not for Poor of another .. . . 44 Religious Purposes, usage Ei'idence of Form of Worship .. . . 45 Declaration of Trust . . 45 Minister Tenant at Will to Trustees .. . . 45 New Trustees .. ..45 Visitors of Charities .. . . 45 Who are .. . . . . 45 Powers and Duties . . 45 43 Eiiz. c. 4. Charitable Purposes mentioned in 43 Eliz. c. 4.J Be- charitabie gifts in quests of pure personal estate (as to real estate, chattels perpetuity valid. j,gg^j^ ^^^ property savouring of the realty, see post, " Mort- main,") for charitable purposes are valid though in perpe- tuity. Many of these purposes are enumerated in the 43 Eliz. c. 4, viz., gifts for relief of aged, impotent and poor people ; for the maintenance of sick and maimed soldiers and mariners ; for ease of poor inhabitants concerning payment of taxes ; for aid of young tradesmen, handicraftsmen, and persons decayed ; for relief, stock and maintenance of houses of correction ; for marriages of poor maids ; for education and preferment of orphans ; for schools of learning, free schools, and scholars in universities ; for relief or redemp- tion of prisoners or captives ; for repair of bridges, ports, havens, causeways, churches, sea banks, and highways. Religious Purposes.] In addition to those mentioned in the act, others of a like nature and not expressly specified in it have been held to be charitable. Thus bequests for the promotion of religious doctrines and opinions (not being superstitious) are good (post) ; and by several statutes be- quests for the promotion of the religious doctrines of various For religions doc- trines. Purposes of Benevolence. 41 sects holding religious opinions opposed to those of the established church have been rendered valid, as in the case of protestant dissenters, baptists, unitarians, quakers, &c. Dissenters. See 1 W. & M. c. 18 ; 55 Geo. 3, c. 160 ; Att.-Gen. v. Cock, 2 Ves. sen. 273 ; Shrewsbury v. Hornbury, 5 Jin. 406; Att.- Gen. V. Lawes, 8 Ha. 32. Roman Catholics. See 2 & 3 Will. 4, c. 115, s. 1 ; Cary Eoman Catholics. V. Abbott, 7 Ves. 490 ; Att.-Gen. v. Todd, 1 Ke. 803, cases before this act; and Walsh v. Gladstone, 1 Ph. 290, since the act. Gifts to Roman Catholic charities are not invali- dated by the addition of superstitious or unlawful trusts, but that which is given to superstitious uses may be applied to lawful Roman Catholic charities. 23 & 24 Vict. c. 134, s. 1. This act only applies to England and Wales, s. 10. By the same act deeds conveying property to Roman Catholic charities have been rendered valid if enrolled within twelve months from the passing of the act (s. 3). Bequests also for the promotion of the religious doc- Jews. trines of Jews are valid. See 9 & 10 Vict. c. 59; Michel's Trusts, 28 Bea. 39. So for the dissemination of the doc- trines of Joanna Southcott. Thornton v. Howe, 8 Jur., N. S. 663. So gifts of pure personal estate for ministers of religion, qua ministers, are valid. Att.-Gen. v. Lawes, 8 Ha. 32. See Thornber v. Wilson, 3 Drew. 245 ; 4 lb. 350, as to the distinction between gifts to ministers, as such, and gifts to individuals, and consider Russell v. Kellett, 3 Sm. & G. 264. So bequests for the distribution of bibles Church purposes, and religious tracts are valid {^Att.-Gen. v. Stepney, 10 Ves. 22), or for providing things connected with the perform- ance of the church service(TMrwer v.Ogrrfew, 1 Cox,316; see Adnata v. Cole, 6 Bea. 353), or for the repairs or ornaments Repairs. of a church (Hoare v. Osborne, L. R., 1 Eq. 585). Prima facie a trust for maintaining the worship of God means the established form of religion ; but where the intention is ex- pressed in favour of any other form of worship not contrary to law, the trust will be enforced. Att.-Gen. v. Pearson, 3 Mer. 409. Purposes of Benevolence.'] Bequests for the following purposes have also been held valid: — For the widows and widows. orphans or poor of a place {Powell v. Att.-Gen., 3 Mer. 48; orphans. Att.-Gen. v. Comber, 2 S. & S. 93 ; Att.-Gen. v. Clarke, ^°°•'■ Amb. 422 ; Bp. of Hereford v. Adams, 7 Ves. 324 ; Russell V. Kellett, 3 Sm. & G. 264 ; Thompson v. Corby, 27 Bea. 649) ; building or endowing a hospital {Pelham v. Ander- Hospitals. son, 2 Ed. 296), where the land is already in mortmain (post); for the improvement or good of a town (Jones v. improvement o« 42 Educational Purposes. General public benefit. Belief or redemp- tion of prieonera. Schools. Fellowsliips. Lectureships. Advancement of learning. Public objects. Private objects. Williams, Amb. 651 ; Hawse v. Chapman, 4 Ves. 542 ; Att.-Gen. v. Lonsdale, 1 Sim. 105; Mitford v. Reynolds, 1 Ph. 185; Att.-Gen. v. Bushhy, 24 Bea. 299); for the benefit generally of the country {Nightingale v. Goulburn, 2 Ph. 594) ; towards payment of the national debt (New- land r. Att.-Gen., SM.eT. 684) ; for deserving unsuccessful literary men (Thompson v. Thompson, 1 Coll. 395); for the encouragement of good servants (Loscombe v. Wintring- ham, 13 Bea. 87) ; and for releasing debtors (Att.-Gen. v. Painters' Co., 2 Cox. 51; see Att.-Gen. r, Ironmongers' Co., 2 M. & K. 576, where the bequest was for the redemption of captives). But a bequest to aid in the discharge of persons committed for nonpayment of fines under the game laws is not a good charitable bequest. Thrupp v. Collett, 26 Bea. 125. Educational Purposes.] Gifts also for educational pur- poses are valid: as for the maintenance of schoolmasters (Hynshaw v. Corporation of Morpeth, Duke, 69); for the foundation of fellowships, scholarships or lectureships. Jesus Coll. Camb., lb. 78; Rex v. Newman, 1 Lev. 284; Att.-Gen. V. Marg. Prof. Camb., 1 Ver. 55 ; Att.-Gen. v. Tancred, 1 Ed. 10; see " Mortmain," post, and the exception in favour of the universities. So gifts for the advancement of educa- tion, learning and knowledge generally. Whicker v. Hume, 7 H. L. C. 124. Thus bequests for the Eoyal Society and Royal Geographical Society are good (Beaumont v. Oliviera, L. R., 4 Ch. 300) ; so gifts for a botanical garden or the like; but if of real estate they are within the Statute of Mortmain (post) and void. Townley v. Bedwell, 6 Ves. 194; Trus- tees of Br. Mus. V. White, 2 S. & S. 594. Public, not private Purposes.] Bequests to be valid as charitable bequests must be for the benefit or advantage of thei public or a section of the public — a parish for instance. Att.-Gen. v. Aspinal, 2 M. & C. 622; Br. Mus. v. White, 2 S. & S. 596; see Kendall v. Granger, 5 Bea. 300. They will not be so where they are merely for some pri- vate object or purpose : thus bequests for the erection or repair of private tombs or monuments (Re Richard, 31 Bea. 244; Fowler v. Fowler, 33 Bea. 316; Hoare v. Osborne, L. R., 1 Eq. 585; comp. Gravenor v. Hallum, Amb. 643), or to found a private museum ( Thompson v. Shakespeare, 1 D., F. & J. 399), or for the benefit of a private company (Att.-Gen. v. Haberdashers' Co., 1 M. & K. 420), or for private charity ( Ommaney v. Butcher, T. & R. 260), are void if unlimited in point of time, as they are contrary to the rule against perpetuities and invalid as charitable bequests. Certainty of Bequest. 43 Certainty of Bequest.'] The bequest must not be of an Must not be am- uncertain nature ; for instance, for " cbaritable or public pur- '''e™"*- poses" ( Vezey v. Jamson, 1 S. & S. 69; see Fowler v. Fowler, 33 Bea. 616), or for such " objects of liberality and bene- volence" as a trustee shall approve of. Morice v. Bp. of Durham, 9 Ves. 399; Williams v. Kershaw, 5 CI. & F. Ill ; Ellis V. Selby, 1 M. & C. 286 ; the cases of Waldo v. Caley, 16 Ves. 206 ; Johnston v. Swann, cited Amb. 585, n., and Horde v. E. Suffolk, 2 M. & K. 59, are contra, but see the observations upon them I M. & C. 292 — 3). A bequest For a purpose, to a public body for a purpose, none being expressed, is °™° expressed. void. Corp. of Gloucester v. shorn, 1 H. L.C. 272; S.C., nom. Corp. Gl. v. Wood, 3 Ha. 131. And a gift to the trustees of a chapel, to be appropriated according to a state- ment appended, there being no such statement, is too in- definite to have effect given to it. Aston v. Wood, L. R., 6 Eq. 419. But a bequest " for such charities and other LawJui charities public purposes as lawfully may be in the parish of A.," is ™* purposes. good. Dolan v. Macdermot, L. E., 3 Ch. 676. And where the uncertainty arises by reason of several objects answering wholly or in part the terms of the bequest, the court will endeavour to ascertain which, or how many, were intended (see Wallace v. Att.-Gen., 2 Dr. & S. 216); and parol evidence is admissible, as the ambiguity is latent (post, "Wills"); and sometimes where the court finds a difficulty in deciding between two or more objects, it will divide the legacy between them. Gibson v. Coleman, 3 W. N. 96. Where a general intention to give in charity is apparent. Doctrine of cy the failure of the particular mode in which the bequest is ^'^ to be carried out will not prevent the court giving effect to the general intention, if practicable. Moggridge v. Thack- well, 7 Ves. 69. The court endeavours to support a charitable bequest, and court enacayoura •where there are two possible constructions of a bequest, one ^"pp"' sifts. of which would render it void and the other effectual, the latter will be supported {Bruce v. Deer Presbytery, L. R., 1 Sc. App. 96), and the trust will be executed in equity, as wiiere for ciia- where it is for charitable uses or religious purposes gene- \%f^ ""'' »^"'^" rally {Att.-Gen. v. Herrick, Arab. 712; Wilkinson v. Lind- grew, L. R., 5 Ch. 570); or for the ^^ poor" generally {Att.- Gen. V. Ranee, cited Amb. 422) ; or for such charitable uses as the testator {Mills v. Farmer, 1 Mer. 55) shall appoint, and no appointment is made ; or for a charitable purpose which has become impossible (Hayterw. Trego, 5 Russ. 113; Att.-Gen. V. Bp. Llandaff, cited 2 M. & K. 586; Att.-Gen. V. Glynn, 12 Sim. 84; Att.-Gen. v. Ironmongers' Co., Cr. & Ph. 208 ; 10 CI. & F. 908 ; Marsh v. Att.- Gen., 2 J. & H. 61 ) ; 44 Trust Funds. Gift for specific purpose wliicli faiis. Appnrtionment of fund. Foreign charities. or for a particular charity and there are several answer- ing the description. Simon v. Barber, 5 Guss. 112. In these and the like cases the court will execute the trust cy pres and apply the fund to other charitable pur- poses similar to those (if any) mentioned by the testator. See Pieschel v. Paris, 2 S. & S. 384. This, however, can- not be done where the object is specific and particular ; for if this cannot be carried out, or the charity mentioned ceases to exist in the testator's lifetime, the gift will fail. See Cherry v. Mott, 1 M. & C. 123; Clark v. Taylor, 1 Drew. 642 ; Russell v. Kellett, 3 Sm. & G. 264 ; Langford v. Gowland, 3 Giff. 617; Fisk v. Att.-Gen., L. R., 4 Eq. 521; Clephane v. Prov. of Edinburgh, L. R., 1 Sc. App. 417; Re Maguire, L. R., 9 Eq. 632. So where the trust is of such a nature that the court cannot enforce it. New v. Bonaker, L. R., 4 Eq. 655. Where a fund is left in trust for trustees to apportion be- tween charities and legatees, and the trustees fail to make any apportionment, the court will divide the fund equally between the objects of the trust. Att.- Gen. v. Doyley, 7 Ves. 58, n. ; Salisbury v. Denton, 3 K. & J. 529 ; see Izod r. Izod, 32 Bea. 242; Down v. Worrall, 1 M. & K. 561. And if one fund be given for several (for instance, three) charitable purposes, some of which (for instance, two) only are good, and from the nature of the fund it is impossible to fix the proportions, the court will make an equal division of the fund, one-third of it, in the case supposed, falling into the residue (if any), and two-thirds being applied equally between the two objects of the valid trusts. Hoare v. Os- borne, L. R., 1 Eq. 585. A gift over in the event of a charitable bequest not taking effect is good. De Themines V. De Bonneval, 5 Russ. 288 ; Hall v. Warren, 9 H. L. C. 420. As to legacies to foreign charities, see Mitford v. Rey- nolds, 1 Ph. 185 ; Att.-Gen. v. Sturge, 19 Bea. 597. Trust Funds to be applied according to the Trust.'] Trustees of charities must apply the charity funds in the mode prescribed by the trust. Att.-Gen. v. Sherborne Hospital funds not School, 18 Bea. 256. Therefore a hospital trust fund can- tor lighting town ; jjQt ^,g applied towards the lighting, &c. of the town {Att.- nor funds for poor Gen. V. Kell, 2 Bea. 575) ; nor a trust for the poor of one of one place for place be diverted for the benefit of the poor of another poorof anotner. (^^ff_Qg^ ^ Brandreth, 1 Y. & C, C. C. 200), or the like. See Att.-Gen. v. Bovill, 1 Ph. 762. But under a trust for the relief of the poor, a fund may be applied for the edu- cation of the poor ( Wilkinson v. Malin, 2 Tyr. 544, 570\ or in aid of the poor rates {Att.-Gen- v. Blizard, 21 Bea. Visitors of Charities. 45 233), and under a trust for finding and paying a schoolmaster, the fund may be used towards the repair or rebuilding of the school-house. Att.-Gen. v. Mayor of Stamford, 2 Sw. 592. With regard also to trusts for religious purposes, where the Religious pur- particular trust is doubtful, the usage of a congregation p"^^' will guide the court in the administration of the trust, and twenty-five years' usage immediately preceding a suit is usage evidence of conclusive evidence. 7 & 8 Vict. c. 45, s. 2. Upon this f"™ »' '''""•'ip. statute it has been held, that where Baptists have enjoyed for the statutory period a charitable fund originally given to Presbyterians, the right of the former cannot be disputed. Att.-Gen. v. Bunce, L. R., 6 Eq. 563. But where there is no doubt usage cannot alter the trust. Att.-Gen. v. Pear- son, 3 Mer. 400 ; Foley v. Wontner, 2 J. & W. 247. And Deeiaratiou o( a declaration of trust by the trustees at the time of the ere- '™''' ation of trust is prima facie evidence of its objects. Att.- Gen. V. Clapham, 4 D., M. & G. 626. The question of the original form of worship contemplated by the trust must be raised by information {Newsome v. Flowers, 80 Bea. 461). It may be mentioned in connection with this branch of the present title, that a minister in possession of a meet- Minister is tenant ing-house is tenant at vnll to the trustees, and, as such, may at wiu to trustees. be dispossessed at law (Doe v. Jones, 10 B. & C. 718), though the right of removal is determinable in equity (Doe V. Jones, sup.; see Foley v. Wontner, 2 J. & W. 247); and a dissenting minister may be removable at the discre- tion of the trustees, &c. Att.-Gen. v. Pearson, 3 Mer. 402. Where the appointment of new trustees or of the minister New trustees. of any chapel is not provided for by the deed creating the endowment, the court will direct an inquiry as to the proper parties to appoint. Davis v. Jenkins, 3 V. & B. 151. And, by the 13 & 14 Vict. c. 28, real estate (see "Mortmain," post) acquired by congregations or societies for purposes of religious worship or education vests from time to time in their successors in office as new trustees without convey- ance (s. 1). Visitors of Charities.^ When a charity has been esta- who are. blished by charter the founder and his heirs, or those nomi- nated by the founder, are the visitors (Att.-Gen. v. Gaunt, 3 Sw. 148); failing these, the crown. Att.-Gen. v. Dixie, 13 Ves. 519, 533 ; Qu. Coll. Cam., Jac. 1. The visitor's duty is to superintend the internal govern- powers and ment of the charity according to the rules or statutes of the •'""^s. founder. With this duty the court will not interfere (see Att.-Gen. v. Found. Hasp. 2 Ves. 47; Att.-Gen. v. Mag- 46 Statute of Mortmain. dalen Coll., 1 Bea. 402) ; but it will in regard to the management of the charity estate and revenues. lb.; Ex parte Birk. School, 2 V. & B. 138; and see Att.-Gen. v. Archbp. of York, 2 K. & My. 468; Att.-Gen. v. Browne's ffosp., 17 Sim. 137; Att.-Gen. v. St. Cross Hosp., 17 Bea. 435. And if property be given to an ancient charity by a new benefactor upon a special trust, the court has jurisdic- tion with reference to it, though in a matter which, but for the special trust, would be properly cognisable by the visitor. Green y. Butter forth, I Ves. sen. 468, 473; and see Chap. III., ■post, as to the various Charitable Trusts Acts. CHAPTEE II. STATUTE OF MORTMAIN. Provisions of Act Gifts of Land, ^'c, to te by Deed So of Money, ^'c, to be laid out in Land, ^'c... Time of JExecutiom — En- rolment Purchases or Transfers for Value Assurances, Sjc. contrary to Act void .. 47 47 47 47 Exemptions .. .. . . 48 Universities — Eton, Win- chester, Westminster . . 48 Does not extend to Scot- land or Ireland . . 48 Kor to London, the Colo- nies, India . . . . 48 Where Licence necessary 48 Effect of Licence . . 48 Charities exempt by Statute .. ..49 Companies — Societies , . 49 Of the Property to which the Statute applies . . 49 Copyholds— Leaseholds . 49 Mortgages . . . . 49 Money to arise from. Proceeds of Sale . . 49 Liens for unpaid Pur- chase Money .. . . 50 Shares in Companies . . 50 Mortgages to Charities. . 51 33 4- 34 Vict. c. 34 . . 51 Of the Property to which tlie Statute applies —conti. Legacies in part charged on Land .. . . 51 Condition subsequent . . 51 Construction generally of Charitable Bequests .. 51 Recommendations to Purchase .. ..52 Option to Invest in Land or Personal Estate . . 52 Establishment or En- dowTnent of Charitable Institutions .. . . 52 Erections or Buildings . . 52 Land already in Mort- main .. . . . . 53 Valid and void Gifts connected .. ..53 Void Legacies paid ,. 53 Gift valid under Mort- main Act may be void as a Perpetuity . . 53 Secret Trust between Devisor and Devisee.. 54 Devisee no Party to the Trust 54 Promise by one Trustee . . 54 As to marshalling Assets . . 54 Court will not marshal Assets .. .. . . 55 Where Testator marslials his Assets . . . . 55 Consequences of failure of C/mritable Gifts . . 55 Provisions of Act. 47 Grantx, ^fc, by Deed . . 65 Voluntary Deeds . . 55 Death of Grantor within twelve Months . . 55 Witnesses . . . . 56 Deeds of Gift reserving Benefit to Donor , . 56 Convey ances for Value.. 56 Reservation of Bent, Si'c. 56 Grants, ^'c. by Deed — contd. Demises taking effect within a Year . . 56 Consideration — Inrol- ment .. . . . . 57 Grants for Buildings for Religious, ^'c. Pur- poses .. .. ..57 Provisions of the Act.'] Even before the 9 Geo. 2, c. 36, alienations in mortmain were forbidden by several early sta- tutes (see the preamble to the act), yet there was no greater restriction on the disposition of real estate for charitable uses or purposes than on that of personal estate. By this Eentais. statute, however, after reciting that gifts or alienations of lands, tenements or hereditaments in mortmain are pro- hibited or restrained by Magna Charta and divers other wholesome laws, as prejudicial to and against the common utility; nevertheless, this public mischief had of late greatly increased by many large and improvident alienations or dispositions made by languishing or dying persons or by other persons to uses called charitable uses to take place after their deaths to the dishersion of their lawful heirs; it is enacted, that after 24th June, 1736, no manors, lands, No manors, lands, tenements, rents, advowsons or other hereditaments, cor- ^%'|,°°^™o°"un poreal or incorporeal, whatsoever, nor any sums of money, lands to be given goods, chattels, stocks in the public funds, securities for u°nie8s^:S°'deir°'' money, or any other personal estate whatsoever, to be laid executed twelve out or disposed of in the purchase of any lands, tenements aeath of donor or hereditaments, shall be given, granted, aliened, limited, andenroued. released, transferred, assigned or appointed or any ways conveyed or settled to or upon any person or persons, bodies politic or corporate or otherwise for any estate or interest whatsoever, or any ways charged or incumbered by any person or persons whatsoever, in trust or for the benefit of any charitable uses whatsoever, unless such gift, conveyance, appointment or settlement of any such lands, &c., money or personal estate other than stocks in the public funds be and be made by deed indented, sealed and delivered in the presence of two or more credible witnesses twelve calendar months at least before the death of such donor or grantor, including the days of execution and death, and be enrolled in chancery within six calendar months next after the execution thereof, and unless such stocks be transferred in the public books usually kept for the transfer of stocks six calendar months at least before the death of such donor or grantor, including the days of the transfer and death, and 48 Exemptions. Not to extend to purchases or transfers for value. Gifts made other- wise absolutely void. The universities and Eton, Win- chester and West- minster exempt. Not to extend to Scotland, Ireland, London, Colonies, India. Institutions exempt. Where licence necessary. unless the same be made to take effect in possession for the charitable use intended immediately from the making thereof, and be -without any power of revocation, reserva- tion, trust, condition, limitation, clause or agreement what- soever for the benefit of the donor or grantor, or of any person or persons claiming under him (s. 1). Provided that nothing thereinbefore mentioned relating to the sealing and delivering of any deed or deeds twelve calendar months at least before the death of the grantor, or to the transfer of any stock six calendar months before the death of the grantor or person making transfer, should extend or be construed to extend to any purchase of any estate or interest in lands, &c., or any transfer of any stock to be made honafide for a full and valuable consideration actually paid at or before the making such conveyance or transfer, without fraud or collusion (s. 2). All gifts, assurances and transfers whatsoever contrary to the act are made absolutely null and void (s. 3). Exemptions J\ The two universities (see Att.-Gen. v. Tancred, 1 Ed. 15; Att.-Gen. v. Andrew, 3 Ves. 633; Att.- Gen. V. Trin. Hall, Cam., 9 Ves. 525) and the colleges of Eton, Winchester and Westminster are exempt from the operation of the act (s. 4). But no college is to hold more advowsons than are equal in number to a moiety of the fellows, not computing, however, those given for the heads of colleges (s. 5). The act does not extend to Scotland (see Macintosh v. Townsend, 16 Ves. 330; Att.-Gen. v. Mill, 5 Bli., N. S. 593), to Ireland ( Campbell v. E. Radnor, 1 B. C. C. 272), to London according to the custom of London (Mid- dleton V. Cator, 4B. C. C. 409), to the Colonies {Whicker v. Hume, 7 H. L. C. 124), nor to India {Mitford v. Reynolds, 1 Ph. 185; Att.-Gen. v. Stewart, 2 Mer. 143); and certain institutions and establishments are exempt from the opera- tion of the act wholly or partially. Of these the principal are the British Museum, 26 Geo. 2, c. 22, s. 14; 5 Geo. 4, c. 39; Queen Anne's Bounty, 43 Geo. 3, c. 107; Greenwich Hospital, 10 Geo. 4, c. 25, s. 37; Foundling, 17 Geo. 2, c. 29; St. George's Hospital, 4 Will. 4, c. 38, loc. & per. ; Museums of Art, &c., 13 & 14 Vict. c. 65, s. 3. See Harrison v. Mayor of Southampton, 2 Sm. & G. 387; and as to dis- positions for ecclesiastical purposes, see 43 Geo. 3, c. 108; 58 Geo. 3, c. 45, s. 33; Ch. Buil. Soc. v. Coles, 5 D., M. & G. 324. Where a statute merely confers on a charitable institution a right to purchase, take and hold land, this simply operates as a licence (see 7 & 8 Will. 3, c. 37) to that effect, rendering Property to which Statute applies. 49 it unnecessary to procure such a licence from the crown (and which is now granted by the Board of Trade), and does not give a right to acquire it except in the manner autliorized by the Statute of Mortmain. Mogg v. Hodges, 2 Ves. sen. 52; Br. Mus. v. White, 2 S. & S. 594; see 1 Jarm. Wills, 222, and ib. n. {V). So that, in effect, in such cases, the charities exempt charitable institution cannot acquire lands or other property ''■'' ^'*'"'''' within the Mortmain Act by devise at aX\{Br. Mas. v. White, 2 S. & S. 594; consider /7arri«ora v. Mayor of Southampton, 2 Sm. & G. 387), unless the language of a statute be express, in effect wholly exempting the charity from the operation of the act and giving it power to take under a devise to it, as in Queen Anne's Bounty Act, sup., and some other acts. The language of the exempting act must therefore be care- fully looked at to see what the precise privileges of the charity governed by it are. As to the powers of companies Companies and and societies to hold land under the Joint Stock Companies Act, see 25 & 26 Vict. c. 89, ss. 18, 21. Under the former section, which is applicable to ordinary trading companies, there is no restriction as to the quantity of land which may be held by an incorporated company. To hold land under the latter section, however, companies formed for the pur- pose of promoting art, science, religion, charity or other like object cannot hold more than two acres of land without the sanction of the Board of Trade. Property to which the Statute applies.] It will be con- venient to consider, in the first place, what property is within the act. When it is ascertained that property of a particular kind is within it, then, of course, no disposition of it by will can be valid, unless it be within the exemptions in the act, or some subsequent enabling statute applies (awfe, p. 41), and no disposition of such property by deed can be good unless valid either within sect. 1 or sect. 2. The act expressly mentions lands, tenements or hereditaments, money and personal estate to be laid out in land. By con- struction also it has been held that the act applies to copy- Copyholds, holds {Doe v. Waterton, 3 B. & Al. 140 ; see 24 & 25 Vict. c. 9, s. 1), leaseholds (Att.-Gen. v. Graves, Amb. 155), and Leaseholds. to principal or interest secured on mortgage of real property Mortgages. or chattels real. Att.-Gen. v. Caldwell, Amb. 635 ; Currie V. Pye, 17 Ves. 462 ; Alexander v. Brame, 30 Bea. 153. The purchase-money of land directed to be sold is within Money to arise the act: Br. Mus. v. White, 2 S. & S. 594; Att.-Gen. -'/ p™«'^''^ °' v. Harley, 5 Madd. 321. In Marsh v. Att.-Gen., 2 J. & H. 61, a legacy was given by A. to a charity, of money to arise from a sale of land directed by a testator under w. E 50 Property to which Statute applies. whom A. claimed. At A.'s death the land had not been sold. The legacy was held good. See also Shadbolt v. Thornton, 17 Sim. 49 (more fully reported 13 Jur. 597). The two last cases, however, are at variance with Att.-Gen. V. Harley, and were not followed in Brook v. Badley, L. R., 3 Ch. 672, where a legacy payable with other lega- cies out of the proceeds of the sale of land, was held to be within the act. In Lucas v. Jones, L. E., 4 Eq. 73, V.-C. Wood appears to lay down the rule that where several persons are interested in the proceeds of land directed to be sold (but still unconverted), and one of them disposes of his share, the act does not apply — aliter where one person alone is interested in the whole fund {ib. p. 77) ; but this seems to be at variance with Brook v. Badley, see L. E., 3 Ch. 674. A covenant (which cannot be satisfied without having recourse to the land of the covenantor) to pay money to trustees to be applied in charity, is within the Liens for nnpais act. Jeffries v. Alexander, 8 H. L. C. 594. The act applies purchase-money, g^^^ ^^ liens for unpaid purchase-money {Harrison v. Har- Mortgages oi toUs, rison, 1 E. &My. 71), mortgages of tolls {KnappY. Williams, ^- 4 Ves. 430, n. ; Ion v. Ashton, 28 Bea. 379), of railway undertakings {Ashton v. L. Langdale, 4 De G. & Sm. 402), and of poor rates {Finch v. Squire, 10 Ves. 41; but as to this case, see Edwards v. Hall, 6 D., M. & G. 74), and to the proceeds of growing crops {Symonds v. Marine Society, 2 Giff. 325) ; but not to arrears of rent {Edwards v. Hall, Shares in com- sup.), to shares generally in incorporated or unincorporated *"'""^' joint stock companies having power to hold latid ( Thompson V. Thompson, 1 Coll. 381 ; Hilton v. Geraud, 1 De G. & Sm. 183; Ashton v. L. Langdale, 4 De G. & Sm. 402; Myers v. Perigal, 2 D., M. & G. 599 ; Watson v. Spratley, 10 Ex. 222 ; Hayter v. Tucker, 4 K. & J. 243 ; Edwards v. Hall, sup.; Taylor V. Linley, 1 GifF. 67), to railway deben- tures in the form of promises to pay {Myers v. Perigal, sup.; Langham' s Will, 10 Ha. 446), to improvement bonds {Bunting v. Marriott, 19 Bea. 163), nor to shares in mines conducted on the cost-book principle. Hayter v. Tucker, sup. It has been held, however, that shares in ordinary joint stock mines are within the act. Morris v. Glyn, 27 Bea. 218 : but see the cases last cited and Entwistle v. Davis, L. E., 4 Eq. 272, in which it was held that shares in the British Land Company were not within the act; for it is a settled principle, that where land is purchased and held by a public company for the purposes of trade, the interest of a shareholder of the company is not within the act. Taylor v. Linley, 2 D., F. & J. 84. And with regard to mortgage securities, it must be observed, that although Property to which Statute applies. 51 money secured on mortgage is within the act {sup.), it would seem that mortgages to corporations and trustees of chari- Mortgages to cor- ties for money lent by them are not. Doe A. Graham v. p"™""'"' ■*"=• Hamkins, 1 G. & D. 551. At all events, a clause of re- demption in a mortgage is not a power of revocation or condition within the first section (ib.); and now by the 33 & 34 Vict. c. 34 (Ist August, 1870), it is enacted as follows : — 1. "It shall be lawful for all corporations and trustees in Corporations ana the United Kingdom holding moneys in trust for any public or Soney hfJiSor charitable purpose to invest such moneys on any real security any public or cha- authorized by or consistent with the trusts on which such may invest'the moneys are held, without being deemed thereby to have same in real secu- acquiied or become possessed of any land within the meaning of the laws relating to mortmain, or of any prohibition or restraint against the holding of land by such corporations or trustees contained in any charter or act of parliament ; and no contract for or conveyance of any interest in land made bona fide for the purpose only of such security shall be deemed void by reason of any non-compliance with the conditions and solemnities required by the Mortmain Act. 2. "Provided always, that in every case in which the ProTiso for cases equity of redemption of the premises comprised in any such ^Jiiy of redemp- security shall become liable to foreclosure, or otherwise tion of the pre- barred or released, the same shall be thenceforth held in barred or released, trust to be sold and converted into money, and shall be sold accordingly ; and if any decree shall be made in any suit for the purpose of redeeming or enforcing such security, such decree shall direct a sale (in default of redemption) and not a foreclosure of such premises. 3. "The words 'real security' in this act shall include all interpretation of mortgages or charges, legal or equitable, of or upon lands or hereditaments of any tenure, or of or upon any estate or interest therein or any charge or encumbrance thereon ; and the word " conveyance" shall include all grants, releases, transfers, assignments, appointments, assurances, - orders, surrenders, and admissions whatsoever operating to pass or vest any estate or interest, at law or in equity, in the pre- mises comprised in any real security." If a charitv legacy be in part money or pure personal Legacies in part -..'' ^-1*^ T 1 1-, -111 •! J _. charged on land. estate, and m part charged on land, it will be void pro tanto as to the latter part only. Waite v. Webb, 6 Madd. 71 ; see Calvert v. Armitage, 1 H. & M. 446. Where the devise is absolute, as to A. in fee, followed by condition subse- a condition that he shall convey it to a charity, the condition ""'"■ only is void; the devise is good. Poor v. Miall, 6 Madd 32. It may be observed that charitable bequests should be construction E 2 52 Property to which Statute applies. generally of cha- ritable bequests. Eecomriiendation to purcbase. Option to invest in land or per- sonal estate. Establishment or endowment of charitable institu- tions. Erection or build- ing. construed so as to ascertain the intention from the words of the will without adverting to the existence of the statute. Tatham v. Drummond, 10 Jur., N. S. 1087. A recommendation to purchase land is imperative, and avoids the gift. Att.-Gen. v. Davies, 9 Ves. 546. Aliter where there is an option to invest in land or on pure per- sonal estate ( Grimmett v. Grimmett, Arab. 210; see Denton v. Manners, 2 D. & J. 675; Mayor of Faversham v. Ryder, 5 D., M. & G. 350 ; Graham v. Paternoster, 31 Bea. 30 ; He Beaumont, 32 Bea. 191), or in land in Ireland or else- where where the Mortmain Act has no operation. Univ. of London v. Yarrow, 1 D. & J. 72. But a direction to place out money on mortgage does not imply an option to invest on personalty or land out of England, and the bequest is void. Baker v. Sutton, 1 Ke. 224. A direction to apply the money in personalty, if an investment in land cannot be conveniently made, is not equivalent to an option, and a bequest in such terms is void. Att.-Gen. v. Hodgson, 15 Sim. 146. So though there is a power to invest on personal estate until the purchase of land is made ( Grieves v. Case, 4 B. C. C. 67; Pritchard v. Arbouin, 3 Russ. 458). And although there may be no express direction in the will to invest in land, yet if from the nature of the charity that result is inevitable the gift is void ( Widmore v. fVood- roofe, Amb. 636 ; Middleton v. Clitherow, 3 Ves. 734, gift to Queen Anne's Bounty, but before the 43 Geo. 3, c. 107; Denton v. Manners, 2 D. & J. 675 ; Tatham v. Drum- mond, 10 Jur., N. S. 1087); aliter where from the rules of the charity the money may be applied in some way not contrary to the act {Church Build. Soc. v. Barlow, 3 D., M. & G. 120) ; and if the will contain no direction to purchase land the trust will be good, if it can be carried out without purchasing land, as where it is "for and towards establishing a school." Att.- Gen. v. Williams, 4 B. C. C. 526. Bequests for or towards the establishment, endowment, maintenance or the like of schools, &c., are, however, in themselves ambiguous, and the intention of the testator must be collected from the context. See Att.-Gen. v. Hall, 9 Ha. 647; Dunn v. Bownas, 1 K. & J. 596; Edwards v. Hall, 6 D., M. & G. 74 ; Dent v. Allcroft, 30 Bea. 335 ; Hopkins v. Phillips, 3 Giff. 182 ; Tatham v. Drummond, 10 Jur., N. S. 1087; Caivood v. Thompson, 1 Sm. & G. 409. Bequests for or towards the erection of schools or other charitable institutions are prima facie bad {Foy v. Foy, 1 Cox, 163 ; Pritchard v. Arbouin, 3 Euss. 468 ; Smith v. Oliver, 11 Bea. 481; Giblett v. Hobson, 3 M. & K 517; Edwards v. Hall, sup.); but where a testator gives money, but forbids a purchase of land with it, expressing, however, Propcrtij to which Statute applies. 53 his desire that land should be found from some other source, the bequest will be good {Philpott v. St. George's Hosp., 2 H. L. C. 338; see Trye v. Corp. of Gloucester, 6 H. L. C. 338; Cresswell v. Cresswell, L. E., 6 Eq. 69; comp. Mather V. Scott, 2 Ke. 172); and bequests for the erection (^Glubb V. Att.-Gen., Amb. 373; Fisher v. Brierly, 10 H. L. C. 159) or improvement {^Att.-Gen. v. Chester, 1 B. C. C. 444; Re Hawkins, 33 Bea. 570) of buildings on land already in mart- Land already in main are good. Sewell v. Crewe-Read, L. E., 3 Eq. 60 ; ""rtmaiD. Booth V. Carter, lb. 1S1 ; as to the last case, see Re Wat- mough's Trusts, L. E., 8 Eq. 272. So bequests for the re- demption of land tax of hereditaments in mortmain (42 Geo. 3, c. 116); aliter bequests to discharge incumbrances on such land. Corbyn v. French, 4 Ves. 418; Waterhouse v. Holmes, 2 Sim. 162; see Bunting v. Marriott, 19 Bea. 163. It has been held that if gifts of pure personalty valid per VaM and void se are so connected with other gifts void under the Statute of ^ "^ counec Mortmain that the court cannot disconnect the two and ascer- tain the quantum of each, both are necessarily void; as where a residue of personalty is given to a charity, the gift being valid per se, after a bequest of an uncertain sum which is void under the act (^Chapman v. Brown, 6 Ves. 404; Att.- Gen. V. Davies, 9 Ves. 535; Att.-Gen. v. Hinxman, 2 J. & W. 270; see Att.-Gen. v. Goulding, 2 B. C. C. 428). Aliter where the amount of that which is legal can be clearly ascertained. Mitford v. Reynolds, 1 Ph. 185; Mayor of Dundee v. Morris, 3 Macq. H. L. 134; Hoare v. Osborne, L. E., 1 Eq. 585; Fish v. Att.-Gen., L. E., 4 Eq. 521. See in the last case the observations on Chapman v. Brown, sup., which will not be followed except under exactly similar circumstances. L. E., 4 Eq. 525; see Kirkman v. Lewis, 4 W. N. 174. If an estate be devised partly upon trusts void under the void and valid act and partly upon valid trusts, the devise will be good as ^^ ' to the latter. Willet v. Sandford, 1 Ves. sen. 186 ; see Doe V. Harris, 16 M. & W. 517; Wright v. Wilkin, 2 B. & S. 232. Where a legacy void under the statute is actually void iegacies paid and laid out in land, the court will not execute the trust p*'*- {Att.-Gen. V. Acland, 1 E. & My. 243); but after a lapse of many years the validity of the trust will be presumed. Att.- Gen. V. Moor, 20 Bea. 119. It may be mentioned that although a gift or devise may om valid under not be void under the Mortmain Act, it will be so if given ^"y'lTvowts a to trustees for non-charitable purposes {ante, p. 42) with- perpetuity, out any restriction as to time, being in that case contrary to the rule against perpetuities. Thompson v. Shakspeare, 1 D., F. & J. 399; Came v. Long, 2 D., F. & J. 75. 54 Marshalling Assets. Devisee no party to the trust. Secret trust bo- A secret trust will invalidate a gift which is contrary to aT£e ''°^'^°' """^ the statute in the same way as an express trust, and the devisee may be compelled to disclose the trust (Boson v. Statham, 1 Ed. o08; see Sweeting v. Sweeting, 10 Jur., N. S. 31); and if denied, it may be proved by parol evi- dence. Edwards v. Pike, 1 Ed. 267. Where, however, the devisee is no parti/ to the trust, neither expressly promising nor by silence implying that he will carry it out, and the devise vests the estate in him, he will be entitled to hold it against the heir or residuary devisee. Wallgrave v. Tebbs, 2 K. & J. 313; Lomax v. Ripley, 3 Sm. & G. 48; Wheeler v. Smith, 1 Giff. 300; Jones v. Badley, L. R., 3 Ch. 362. But if the testator has been induced to make the devise upon an assurance that the devisee will perform the secret trust, the devise fails. Russell v. Jackson, 10 Ha. 204. And where there are several devisees a promise by one before the will is made avoids the gift to the others {Moss V. Cooper, 1 J. & H. 352 ; see Russell v. Jackson, 10 Ha. 204); but not where the promise is made by him after the will is executed ( ib. \ though the party promising will him- self take no beneficial interest, and silence by the trustee to whom the communication as to the trust is made is equiva- lent to assent. Tee v. Ferris, 2 K. & J. 357 ; Springett v. Jennings, L. R., 10 Eq. 488. If trustees take the legal estate upon a secret charitable trust, the crown has no claim if the heir cannot be found. Sweeting v. Sweeting, 10 Jur., N. S. 31. Promise by one of several devisees. Court wiil not marsbai assets. As to marshalling Assets.'^ Where debts and legacies of every kind are charged on the estate generally, and the charity legacies are not directed to be paid out of the pure personal estate (as to which see J. Wms. Pers. Prop. p. 321, 5th ed., cited and approved Beaumont v. Oliveira, L. R., 4 Ch. 318), the court will not marshal the assets {ante, p. 36) in favour of the charity, and throw the debts and non- charitable legacies on the realty, in order to increase the pure personal fund. Hobson v. Blackburn, 1 Ke. 273, and several prior cases. On the other hand, the pure personal estate will not be onerated exchisively with the debts and non-charitable bequests, the result being that the charitable legacies will be void pro tanto, that is to the extent that it would be necessary to have recourse to real estate or chattels real to pay them. See Philanthropic Soc. v. Kemp, 4 Bea. 581 ; Cherry v. Mott, 1 M. & C. 123; Briggs v. Chamberlain, 18 Jur. 56; Beaumont v. Oliveira, sup.; 1 Jarm. Wills, 215. In considering this question regard must be had to the assets at the time of the testator's death. Calvert v. Armitage, 1 Grants, ^-c. by Deed. 55 H. & M. 446. Where property comprising real, impure per- sonal estate, and pure personal estate, is given upon trusts for sale and payment of debts and legacies, the residue being given for charitable purposes, the debts and ordinary legacies are charged upon the funds rateahly according to their re- spective values, and the residue of the pure personal fund is then available for the charitable legacies. Howse v. Chap- man, 4 Ves. 542; see Currie v. Pye, 17 Ves. 4f)4; Robinson V. London Hasp., 10 Ha. 29 ; Edwards v. Hall, 1 1 Ha. 22. And this rule will not be varied, though the testator may direct the charitable legacies to be paid out of such part of his personal estate as by l&w is applicable for such bequests. Llewellyn v. Rose, 4 W. N. 178. A testator, however, is said to marshal his own assets in Testator mar- favour of a charity when he directs a charity legacy to be ^*ets?^ '"^ °'™ paid out of his pure personal estate. In such cases, as between ordinary and charity legacies, the latter have priority, whether they are general or demonstrative legacies. Robin- son V. Geldart, 3 Mac. & G. 735; Sturge v. Dimsdale, 6 Bea. 464; Nickisson v. Cockill, 9 Jur., N. S. 975; Llewellyn V. Rose, sup. But although charity legacies are to have priority over ordinary legacies out of the pure personalty, this means after the pure personalty has contributed, rateably with other property liable to contribute, to debts, funeral expenses and costs of suit (if any). Tempest v. Tempest, 7 D., M. & G. 470; Beaumont v. Oliviera, L. E., 4 Ch. 309. Charitable gifts which fail as being contrary to the statute consequences o£ enure, where the property is real estate, for the benefit of the tawe'guts? testator's heir ( Gibbs v. Rumsey, 2 V. & B. 294) if the will be made before the 1 Vict. c. 26; if made since that act, of the residuary devisee, if any (see sect. 25; Carter Y.Haswell, 3 Jur., N. S. 788; Cogswell v. Armstrong, 2 K. & J. 227); if none, of the heir. Where the property is personal estate and the gift fails, the failure enures for the benefit of the testator's residuary legatee, if any {^Cooke v. Stationers' Camp., 3 M. & K. 262, 264) ; if none, of his next of kin. Howse V. Chapman, 4 Ves. 542. Grants, S^c. by Deed."] Voluntary conveyances of lands. Voluntary deeds. &c. to charitable uses are subject to the provisions of sect. 1 of the act {ante, p. 47 ), and the death of the grantor within Death of grantor twelve months from the execution of the deed renders it J^o^ths!'''''^* void. Price v. Hathaway, 6 Madd. 304; Hawkins Y.Allen, L. R., 10 Eq. 246. But in some cases subsequent statutes have made exceptions to the act, as where the conveyance of the land is for the education of the poor. See 4 & 5 Vict. c. 38; 7 & 8 Vict. c. 37, s. 3; 12 & 13 Vict. c. 49, s. 4; 15 & 16 Vict. c. 49. The deed must be attested by two witnesses at witneises. .56 Grants, 3)C. by Deed. Deeds of gift re- Borving benefit to donor. Conveyances for TaLue. Reservation of rent, &c. Money expended In improvements. least. Wickham v. Marq. Bath, L. E., 1 Eq. 17. And this provision is equally applicable to conveyances for value (IMortmain Act, s. 2). No power of revocation, benefit, &c. must be reserved to the grantor. Thus an arrangement, though not amounting to a specific agreement, between the grantor and trustees of the charity that the former shall re- ceive the income of the property, avoids the deed. Way v. East, 2 Drew. 44. So a resulting trust by operation of law for the donor during his life. Limhrey v. Gurr, 6 Madd. 151. And a conveyance to a charity subject to and just after a deed reserving an interest to tlie donor is void. JVickham v. Marq. Bath. sup. But the mere retention of the deed, if duly enrolled, by the donor until his death will not avoid it, even though he may have derived some benefit from the land granted. Fisher v. Brierley, 10 H. L. C. 159. And the donor may reserve the right of regulating the charity. Grieves v. Case, 2 Cox, 301 ; and see the statutes cited, infra, some of which relate to voluntary deeds. Conveyances for value are not avoided by the death of the grantor within the time limited with reference to volun- tary grants (s. 2). Some subsequent statutes also (pre- sently noticed) have had the effect of modifying the strin- gency of some of the provisions of the act, and rendering deeds valid notwithstanding the formalities prescribed by the statute of Mortmain have not been complied with. Thus, by the 9 Geo. 4, c. 85, s. 1 (which has only a retro- spective effect) certain deeds, not strictly complying with the Mortmain Act, are rendered valid. By the 24 & 25 Vict. c. 9, no deed or assurance for charitable uses shall be void by reason of its not being in- dented, or of the reservation of a nominal rent, or of mines, minerals or easements, or of covenants or provisions as to the erection, repair, &c. of buildings, formation of roads or similar covenants for the use as well of the hereditaments comprised in such deed, &c. as of other adjacent heredita- ments, nor as to the assurance of copyholds for want of a deed, nor, where the conveyance is on a sale, by reason that the consideration is wholly or partly a rent or other annual payment, but the donor or vendor must reserve the same benefits for his representatives as for himself (s. 1). Where there are two deeds, &c., one conveying the property, the other declaring the uses, the former need not be enrolled but the latter must be (s. 2"'. By the 25 & 26 Vict. c. 17, s. 5, money honafide expended before that act (16th :May, 1862) in the substantial and per- manent improvement of land held for charitable uses is equi- valent to money paid as a consideration for the purchase of the land. Grai/fs, ^c. hy Deed. 57 By the 26 & 27 Vict. c. 106, every deed or assurance by Demises taking which any land shall have been demised for any term of «^'^"^» years for any charitable use, shall, for all the purposes of the 9 Geo. 2, e. 36, 24 & 2o Vict. c. 9 and 2-5 & 26 Viet. c. 17, be deemed to have been made to take effect for the charitable use thereby intended immediately from the making thereof, if the tenn for which such land shall have been thereby demised was thereby made to commence and take effect in" possession at any time within one year from the date of such deed or assurance (s. 1). By the 27 & 28 Vict. c. 13, s. 4, if the consideration is rent consUeiation. reserved to the vendor or grantor, such consideration is equivalent to payment at or before the conveyance. In cases falling within sect. 2 of the Mortmain Act, the time Enrolment. for the enrolment of conveyances for value was extended by various statutes (see 24 & 2-5 Vict. c. 9, ss. 3, 4; 2.5 & 26 Vict. c. 17; 27 & 28 Vict. c. 13, ss. 1, 2, 3), and now, by the 29 & 30 Vict. c. 57, the court of chancery has power to authorize the enrolment where the conveyance is for value, and the omission to enrol arose from inadvertence or from the destruction of the conveyance by time or accident (s. 2). But the act does not apply when, at the time of the application to the court, any action or suit is pending as to the validity of the deed, or it has been adjudged invalid (s. 4). Lands in mortmain, by virtue of a deed duly en- rolled, may be conveyed to similar uses by a deed not enrolled. Att.-Gen. v. Glyn, 12 Sim. 84; Ashton v. Jones, 28 Bea. 460. By the 31 & 32 Vict. c. 44 (13 July, 1868), all alienations, Grants for boiid. grants, &c., or other dispositions, except by will, bona fide made after the passing of the act to trustees on behalf of any society or body associated for religious purposes, or for the promotion of education, arts, literature, science, or other like purposes, of land not exceeding two acres for the erection thereon of a building for any of such purposes, or whereon a building used or intended for any of such purposes shall have been erected, are exempted from the provisions of the Mortmain Act, and of the 24 & 2.5 Vict. c. 9, s. 2, ante, p. 56; provided that such alienations, &c. shall have been bona fide made for a valuable consideration actually paid upon or before such alienation, &c., or reserved by way of rent, rent- charge, or other annual payment, or partly paid and partly reserved (s. 1). The trustees may, if they think fit, enrol the deed (s. 2). From and after the parsing of this act, it shall not be necessary to acknowledge any deed or instru- ment in order that the same maybe enrolled in chancery (s. 3). The last section seems general. nss for relijjioua purposes. 58 Charitable Trusts Acts. Charitable Truata Acta, 1863, 1865, 1860. Powera of com- missioners. CHAPTER III. CHARITABLE TRUSTS ACTS. Charitable Trusts Acts , . 58 | Powers of Commissioners 58 The 16 & 17 Vict. c. 137, 18 & 19 Vict. c. 194 and 23 & 24 Vict. c. 136, explained by 25 & 26 Vict. c. 112, contain various important provisions regulating the administration of cliarities. The first act of tlie kind was the43 Eliz. c. 4. The 16 & 17 Vict. c. 137, provides for tlie appointment of certain commissioners, to be called "The Charity Commissionei's of England and Wales," who are empowered to sit as a board to carry out the provisions of the act (ss. 1 — 6), and to in- quire into the condition and management of charities (s. 9). The board, or any commissioner or inspector of the board, may require written accounts and statements (to be verified on oath) as to the property of a charity (s. 10) : 18 & 19 Vict. c. 194, s. 6. Ofiicers, &o., having the custody of any charity deeds or documents, are to furnish or allow copies or extracts to be made therefrom (16 & 17 Vict. c. 137, s. 11\ Trustees and depositaries of the funds of charities, and the persons beneficially interested therein, and custodians of deeds and documents, are when required to attend and be examined on oath before the board, commissioners or inspec- tors (18 & 19 Vict. c. 194, s. 7). Persons not complying with the requisitions of the board are to be deemed guilty of a contempt of the court of chancery {ib. s. 8). The board may institute proceedings relating to any charity (16 & 17 Vict, c. 137, s. 19), and sanction building leases and building and other works, and authorize the application of charity funds, or raising money on mortgage, for these purposes {ib. s. 21), remove schoolmasters and officers of charities, with the sanc- tion of the visitor, if any {ib. s. 22 ; see WTiiston v. Dean of Rochester, 7 Ha. 532), sanction a compromise of charity claims {ib. s. 23 ; 18 & 19 Vict. e. 194, s. 31), and authorize a sale or exchange of charity lands {ib. ss. 24, 25) and pur- chases under certain restrictions {ib. s. 41). The acts also contain provisions giving jurisdiction to certain courts and judges, and providing for the efficient working of the board created by the original act. See further as to these acts, Cooke and Harwood's Charitable Trusts Acts. ( 59 ) COMPROMISES AND FAMILY AERANOEMENTS. In general . . . . . . 59 Supported iy tJw Court . 59 For Famili/ Honour . . 59 Consideration for . . 59 Compromise of doubtful Eights 60 Parol Agreement as to Real Estate .. . . 60 Full Disclosure .. . . 60 JVot binding if Conceal- Tnent . . . . . . 61 Fraud 61 Parties must understand Arrangement .. . . 61 Mistake common to all Parties .. .,61 Compromise limited to Subject-matter of it . . 61 Tn general — continued. Non-i'xccittion by one Party 61 Family Arrangements and Re-settlements .. . . 62 Father Tenant for Life — Son in Remainder. . 62 Purchase under Pres- sure . . . . . . 62 Remote Remainderman . 62 Compromise of Suits .. . . 63 Authority of Counsel and Attornies .. . . 63 Principal — Agent .. 63 Married Women . . 63 Laches — Acquiescence.. 63 In General.^ Fair compromises and arrangements, espe- cially between members of a family, are favourably looked upon by courts of equity, their object being to prevent or put an end to litigation, and to preserve the peace and pro- perty of families. See, per Turner, L. J., Williams v. Williams, L. E., 2 Ch. p. 304 ; Head v. Godlee, Johns. 536 ; Wakefield v. Gibbon, 1 Giff. 401. Thus, a court of equity will if possible decree performance of a reasonable agreement entered into to save the honour of a father and his family, or to reconcile the members of a family, or for the compromise of doubtful rights. Stapelton v. Stapelton, 1 Atk. 2 ; see Westby v. Westby, 2 Dr. & War. 502, where the doctrine relating to family arrangements is elaborately examined and explained. In such cases the court will not, as a general rule, enter into the question of the adequacy or inadequacy of the consideration {Naylor v. Winch, 1 S. & S. 555) ; for deeds in the nature of family arrangements are exempt from the rules applicable to other deeds, the consideration for the former being partly value and partly love and affection. Per L. C. Persse v. Persse, 7 CI. & Fin. 318 ; and see Williams v. Williams, L. R., 2 Ch. 294. Fair compromises supported by tlie court. For family honour. Consideration for. Consideration partly value, partly natural love and affection. CO Compromises in General. Compromise of doubtful rights. Parol agreements as to real estate. Full disclosure. Not binding if concealment. And when, upon a doubtful question of right, an arrangement is made cither out of court or before the court (much more if before the court) by means of which the doubtful title is gi\'en up and a certain interest procured in exchange, it is not consistent with the doctrine of the court to set that iirrangement aside on the ground of mistake. Stone v. Godfrey, 1 Sm. & Giff. 603 ; 5 D., M. & G. 90 ; and see Naylor v. Winch, 1 S. & S. 564 ; Lucy's Case, 4 D., M. & G. 356 ; Cooke v. Wright, 1 B. & S. 559. Upon this principle, an agreement not to dispute a void- able marriage by the person entitled to property in default of issue of the marriage, such person deriving benefits under the agreement, is binding on him and those claiming under him, particularly after the lapse of many years. Westby v. Westhy, 2 Dr. & War. 502. So where brothers, devisees under their father's will, the validity of which was doubtful, entered into a parol agree- ment to divide the property, the eldest son and heir taking rather more than the others, and the arrangement was acted upon, it was held that the heir could not afterwards dispute the agreement on the ground that the will did not operate on the property. Neale v. Neale, 1 Ke. 672 ; Heap v. Tonge, 9 Ha. 90 ; consider Cocking v. Pratt, 1 Ves. sen. 400. Even a parol agreement as to land made as a family compromise of doubtful rights will be enforced where thei'e has been part performance by possession and improvements and acquiescence for a considerable period. Stockley v. Stockley, 1 V. & B. 23 ; Clifton v. Cockburn, 3 M. & K. 76 ; Williams v. Williams, L. R., 2 Ch. 294. Family compromises without fraud (see Brooke v. Ld. Mos- tyn, inf.) will be supported, though to some extent founded on mistake. But a settlement will be set aside where there has been fraud or concealment of material facts. For arrangements in the nature of family arrangements require all material cir- cumstances to be communicated. There must not only be good faith and honest intention but /w/Z disclosure. Gordon V. Gordon, 3 Sw. 400; Groves v. Perkins, 6 Sim. 576; Harvey v. Cooke, 4 Russ. 34 : Smith v. Pencomhe, 3 Mac. & G. 653 ; Cook V. Grieves, 30 Bea. 378 ; Greenwood v. Greemvood, 2 D., J. & S. 28; comp. Bainbridge v. Moss, 3 Jur., N. S. 58; aff. ib., 62, n. There must be, in such cases, to use the language of a very learned judge, uberrima fides. Per Ld. Westbury, Tennent v. Tennent, L. R., 2 H. L. Sc. App. 6. A compromise on behalf of infants, although sanctioned by the court, will be set aside if important information has been withhold. Brooke v. Ld. Mostyn, 2 De G. & Sm. 373. Compromises in General. Gl But an infant in such cases has no greater equity than a Fraud. person sui juris. lb. Even after a considerable lapse of time and settlement of accounts and compromise (though not in the nature of a family arrangement), the compromise will be set aside and the accounts reopened if fraudulent entries hare been made in them which have served as the basis of the compromise. Stainton v. Carron Co., 10 Jur, N. S. 373. In Dunnage v. Wliite (1 Sw. 137), a compromise was Parties must , . J r.. . n 1 understand the set aside, even alter an acquiescence ot some years, where arrangement, it appeared on the face of the deed that the parties did not understand their rights or the nature of the transaction, and that one of them surrendered an unimpeachable title without consideration ; evidence being given besides of his gross ignorance, habitual intoxication, liability to imposition and want of professional advice. See Cartledge v. Radbourn, 14 W. E. 603. But in Manby v. Bewicke, 3 K. & J. 342, it was held that a suit could not be instituted to set aside the compromise of an action to recover estates made eighty years before the suit, upon the ground that the compromise was a fraud upon the plaintiff in the action, and that he was a man of such dull intellect that though cognizant of all the facts it was necessarily a concealed fraud to him. A mere anstase common mistake, common to all parties, particularly as to some ques- '° °^ parties, tion of law, will not invalidate the arrangement. Thus an agreement made upon the supposition that an insti'ument or some limitation in it will have a particular eifect in point of law which it will not have, is nevertheless bind- ing. Pullen V. Ready, 2 Atk. 591 ; see Cann v. Cann, 1 P. W. 723 ; Clifton v. Cockburn, 3 M. & K. 76 ; Lucy's Case, 4 D., M. & G-. 356; Partridge r. Smith, 9 Jur., N. S. 742. The court, however, will set aside a transaction where a party, acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his in- disputable rights to another, under the name of compromise (Lawton v. -Campion, 18 Bea. 87; cons. Trigge v. Lavallee, 15 Moo. P. C. 271 j; and a mistake as to a matter of fact not included in the compromise and influencing a party to it, may be sufficient to entitle him to avoid the compromise. lb. So a compromise as to one matter will not conclude the parties compromise to it as to another matter not immediately under their con- ■!™"i=<' '» par- sideration and not necessarily involved in the former. Ben- ' " "" "' nett V. Merriman, 6 Bea. 360. Where it is necessary, or it is the understanding between Non-execution by the parties, that all of them should execute the deed of tiie''otiie'^ra""^^''^ arrangement, it will not be binding on those ^\ho do execute, if one does not {Peto v. Peto, 16 Sim. 590), or does execute, but the deed is not binding on such person by reason of 62 Family Arrangements and Re- settlements. Father tenant for life and son tenant in tail in re- mainder. Purchase under pressure of Yen- dor not pro- tected. Equity of remote remainderman. incapacity, — for instance, coverture. Bolitho Y.Hillyar, 34 Bea. 180. For a person entering into a compromise is entitled to have it carried wholly into effect, or to be discharged from it. Mullins v. Hussey, 12 Jur., N. S. 636. Family Arrangements and Re-settlements. "l The ordinary family arrangement by which the estate of a son tenant in tail in remainder is reduced to an estate for life, with re- mainder to his children in tail, upon terms by which he obtains a present interest, will be supported in equity where it has been fully explained, and may fairly be supposed to have been understood. Jenner v. Jenner, 2 D., F. & J. 359 ; see Wakefield v. Gibbon, 1 Giff. 401 ; Dimsdale v. Dims- dale, 3 Drew. 556. In judging of the fairness of such an arrangement, when entered into shortly after the son has attained his majority, all the circumstances of the case must be taken into consideration (Bellamy v. Sabine, 2 Ph. 423); and it will not be sufficient to invalidate it, merely to show that the father may have exercised his parental authority in inducing his son to enter into it. Hoghton v. Hoghton, 15 Bea. 305 ; Hartopp v. Hartopp, 21 Bea. 259; Davis v. Uphill, 1 Sw. 129. So where the son agrees to secure a sum of money to each of his sisters, or a jointure to his mother, the settlement or agreement will be enforced if it has been freely entered into and not under any undue exercise of parental influence. Wycherley v. Wycherley, 2 Ed. 175 ; see Cory v. Cory, 1 Ves. sen. 19; Persse v. Persse, 7 CI. & F. 318 ; Wright v. Vanderplank, 2 K. & J. 1 ; 8 D., M. & G. 133. But it is a circumstance always to be considered in such cases, that by the effect of the arrangement the father has obtained important advantages. Where this is the case the father must be prepared to show that no undue influence was exercised. Hoghton v. Hoghton, sup.; Potts v. Surr, 34 Bea. 543 ; see tit. " Fraudulent and Voluntary Con- veyances, &c." in one case, a purchase by an uncle, who was tenant for life of the presumptive estate tail in remainder of his nephew, under great pressure arising from the circumstances of the nephew, the purchase being effected by barring the entail and a conveyance to the uncle in fee, was set aside, not being supported upon the principles regulating family arrange- ments. Talbot V. Staiiiforth, 7 Jur.j N. S. 961, compro- mised on the appeal, 8 Jur., N. S. 757. Where the first tenant in tail in remainder enters into a family arrangement with the tenant for life, it is doubtful whether a remote remaindennan has any equity to complain of the transaction. Ta-cddcU v. Tweddell, T. & R. I. Compromise of Suit or Action. 63 Compromise of Suit or Action.'] Counsel have not, nor Authoritjof have attornies, authority to compromise legal proceedings if counaei or attor- expressly forbidden to do so by their clients {Swinfen v. "*'■ Swinfen, 1 C. B., N. S. 364; Frai/ v. Vowles, 1 E. & E. 839 ; Swinfen v. Ld. Chelmsford, 5 H. & N. 890) ; but otherwise if not so forbidden. Prestwick v. Foley, 18 C. B., N. S. 806; see Alole v. Smith, 1 Jac. & W. 673; Chown V. Parrott, 14 C. B., N. S. 74; Butler v. Knight, L. E., 2 Ex. 109. But counsel have no authority to make a compromise out of court. Green v. Crockett, 34 L. J., Ch. 606. As to a compromise by counsel on the recommenda- tion of the court, see Elworthy v. Bird, Taral. 40. Where one of the parties is an infant, see Hargrove v. Hargrave, 12 Bea. 408. It would seem that if parties act by their Knowledge of agents, it is not essential that the former should clearly un- L^ageoi principal. derstand their rights, if the latter do so. Stewart v. Stewart, 6 CI. & F. 911. In the absence of fraud, a married woman is not bound by Married woman. a compromise made by her husband affecting her real estate which she has not confirmed by a duly acknowledged deed, even although she may have adopled and acted upon the compromise. Nicholl v. Jones, L. R., 3 Eq. 696. But the court has jurisdiction to sanction, on behalf of a married woman, a compromise of a suit; for instance, a suit to make a trustee liable for a breach of trust in relation to a fund in which she has a reversionary interest. Wall v. Rogers, Wall V. Ogle, L. E., 9 Eq. 58. As to laches and acquiescence where the parties are not Laches and nc- sui juris, see HeadY. Godlee, 1 Johns. 536; 6 Jur., N. S. «"'«*<^™'^«- 495. ( 64 ) CONTEACTS. Ch. L- Ch. 2.- Ch. 3.- Ch. 4.- Ch. 5.- Ch. 6.- Ch. 7.- Ch. 8.- Ch. 9.- ■Of Contracts in geneeal, p. 64. -Foreign Contracts — Foreign Law, p. 70. ■How Contracts mat be entered into, p. 72. -How Contracts mat be discharged, varied and RELEASED, p. 74. •Assignment and Devolution of Contracts, p. 78. ■Matters affecting the Legalitt of Contracts, p. 80. ■Of the Requisites of Contracts in Equitt, p. 85. ■Of Specific Performance, p. 92. Sec. 1. — Complete Specific Performance, p. 92. Sec. 2. — Partial Specific Performance, p. 96. Remedies for Breach of Contract at Law, p. 97. CHAPTER I. OF contracts in general. Natvre of .. .. . . 65 Definition of .. . . 65 Express or implied . . 65 Parol and under Seal . . 65 Simple — Special , , 65 Contracting Parties .. . . 65 Married Women — Sepa- rate Property . . 65 I/iinatics .. .. . . 66 Infants — Batifioation . . 66 Persons not Parties . . 66 Tenants in Tail .. . . 67 Consideration .. . . 67 JVecessary in simple Con- tracts .. . . . . 67 Consideration— continued. AKter in Contracts under Seal 67 Are: \,6ood; I^Valu^ible 67 Wliat are valuaMe Adegiiacy or inadequacy of Agreements with a Penalty . Enforceable in Equity.. Penalty or liquidated Damages Conditions precedent Concurrent Acts .. .. Independent Contracts Joint and sercral Contracts . 67 67 68 68 68 68 68 69 69 Subject-matter of In this title I propose only to treat of contracts generally *'««• and of those fundamental principles which, more or less. Nature of Contracts. 65 affect and are commou to all contracts, endeavouring, as much as possible, to exclude matters which would more properly and conveniently come under some other title. To treat of all matters of contract under one head would, though prac- ticable, be inconvenient, having regard to the nature and arrangement of this work. There is, in fact, scarcely a title, some portion of which does not, strictly speaking, come under the general head of contracts used in the largest sense of the term. Some indeed, — fof instance, landlord and tenant, mort- gage, marriage settlements, vendor and purchaser, &c., — would almost wholly fall within it. These, however, are far more conveniently treated of separately. Nature of."] A contract is an agreement, upon sufficient Definition, consideration, to do or not to do a particular thing (2 Blac. Com. 442), and may be either express or implied; as where Express or im- a person buys goods the law implies a promise to pay for ^ ''^' them. There are many kinds of implied contracts, the remedy for breach of which is, for the most part, at law, for damages. Express contracts are, technically speaking, of Parol, two kinds only, — first, parol or verbal, and, secondly, under By deed, seal, or specialty contracts; and although there may be a writing, embodying the contract, it is, strictly speaking, evidence only of the verbal contract. Rann v. Hughes, 7 T. E. 350, n.; see Sug. Ven. & Pur. 115. Practically, how- ever, and more logically, contracts may be considered as — 1. Verbal; 2. In writing, not under seal; and 3. Under seal, or by deed. All contracts not under seal are termed simple simple. contracts; all contracts under seal are specialty contracts. Special. Eann v. Hughes, 7 T. E. 351, n.* Who may or may not contract.'] Prima facie aU persons Married woman, are capable of contracting. The exceptions to the rule need only be mentioned. A married woman is incapable of enter- ing into a valid contract at law {Marshall v. Button, 8 T. E. 545), or in equity unless she has separate estate. See tit. " Husband and Wipe." Though, strictly speaking, a matter coming within the wife's authority province of law only, it may be observed that while husband 'ari'es.'''^ "'"'" and wife are living together the presumption is that she • In Mr. Chitty's Taltiatle work on "Contracts," contracts or obliga- tions ex contractu are said to be of three descriptions, viz.: 1. Of Record; 2. Specialties; 3. Simple Contracts. See pp. 1,2. Perhaps, however, judgments and recognizances which are of record, although oblig.ations, can scarcely be considered as coming strictly within the term contract. The point, however, is not, perhaps, important, and Mr. Chitty has authority for his classification. W. F C6 IVIio may or may not Contract. Infants, Persons not par- ties. has implied authority to order necessaries. But this may be rebutted by proving that her husband had prohibited her from giving such orders, though the prohibition was not known to the person with whom she dealt. Jolly v. Rees, 15 C. B., N. S. 628. And the authority does not extend beyond necessaries. Montague v. Benedict, 3 B. & C. 631 ; Seaton V. Benedict, 5 Bing. 28. A wife wrongfully turned away by her husband has the same implied authority in respect of necessaries as when she was living' with him ( Thompson v. Harvey, 4 Burr. 2178 j see Bazeley v. Forder, Li. E., 3 Q. B. 559), unless, it would seem, where she has a sufficient fortune or settlement of her own. See Johnston v. Sumner, 3 H. & N. 261. A lunatic cannot contract, but there may be cases in which a person has entered into an agreement with a lunatic, being ignorant of his lunacy, which agreement it would be con- trary to equity to set aside. See JViell v. Morley, 9 Ves. 478 ; Baxter v. E. Portsmouth, 5 B. & C. 170 ; Nelson v. Duncombe, 9 Bea. 211; Molton v. Camroux, 4 Ex. 17; Beavan v. McDonnell, 9 Ex. 309 ; and tit. " Mortgage." A contract by an infant (except for necessaries, as to which see Chit. Con. 138 et seq. ; Ryder v. Wombwell, L. E., 3 Ex. 90) is voidable by the infant at law, though the other party to the contract was induced to enter into it by means •of the fraudulent representation of the infant that he was of age {Bartlett v. Wells, 1 B. & S. 836; De Roo v. Foster, 12 C. B., N. S. 272); though, if there has been fraud, relief will be given in equity on that ground. See Nelson v. Stocker, and particularly the judgment of Turner, L. J., 4 D. & J. 458. An infant cannot maintain a suit for specific perform- ance of a contract, as he himself is not bound by it {Flight V. BoUand, 4 Russ. 298; Hargrave v. Hargrave, 12 Bea. 408; see "Mutuality," post, p. 86); but he may ratify a con- tract made during infancy an attaining his majority, by some writing signed by him (9 Geo. 4, c. 14, s. 5). To enable one who is not a party to a contract to enforce it, he must be either named in it or clearly designated as the person for whose benefit it is made. Peddie v. Brown, 3 Macq. H. L. C. 65; see Colyear v. Ctss. Mulgrave, 2 Ke. 81. Formerly no person could take an immediate estate or benefit under an indenture unless named as a party, but he could under a deed poll ( Co. Litt. 26 a), and there was the same distinction with regard to covenants in indentures and deeds poll. Berkley v. Hardy, 5 B. & C. 353. Now the 8 & 9 Vict. c. 106, s. 5, enables a person, not named a party to an indenture, to take an immediate estate under it in, and the benefit of a covenant in it, respecting, any tenements Consideration. 67 or hereditaments. See Ex parte Cockburn, 33 L. J., Bkcy. 17; Chesterfield, ^c. Co. v. Hawkins, 3 H. & C. 677. As to contracts by tenants in tail, see tit. " Estates." Tenants in tail. Consideration.^ At law and in equity it is essential, consideration where the contract is not under seal, that there should be a "aJ^y neeerary™ consideration moving from one person for a promise by for promise by another, otherwise the promise is a mere nudum pactum, for °'"°*^'^- breach of which neither action nor suit can be maintained. See 2 Blac. 445; Rann v. Hughes, 7 T. R. 350, n.; Penn V. Baltimore, 1 Ves. sen. 444; Ord v. Johnston, 1 Jur., N. S. 1063; and generally as to mere gratuitous promises at law, Chit. Con. 41 et seq. But, as a general rule, a con- sideration is not necessary at law where the contract is under seal {Irons v. Smallpiece, 2 B. & Al. 554), nor always in equity. See Pratt v. Barber, 4 Russ. 507; cons. Wycherley V. Wycherley, 2 Ed. 177; and tit. "Fraudulent and Vo- luntary CONVETANCES AND SETTLEMENTS." Considerations are — 1 . Good or meritorious, that of blood Considerations namely, or the natural love which a person has for his children tl^'^va'iii^te!'' or relations; such a consideration or any mere moral obli- gation will not support a promise either at law {Eastwood V. Kenyan, 11 A. & E. 447; Beaumont v. Reeve, 8 Q. B. 483 ; Tweddle v. Atkinson, 1 B. & S. 393) or in equity. Jeffery v. Jeffery, 1 Cr. & Ph. 138; Moore v. Crofton, 3 Jo. & Lat. 438, overruling Ellis v. Nimmo, LI. & G-. t. Sug. 333. 2. FaZwaftfe, or such as will support a promise both at wiiatareyainawe law and in equity. Money, money's worth or marriage is a j°"^' °™ '°"*' valuable consideration. So any loss, inconvenience or risk Marriage, sustained or incurred by one party at the request, express loss, &c. by one or implied, of the other, though the latter may not be p""''-*'- benefited. See 2 Blao. Com. 297; Crosbie v. M'Doual, 13 Ves. 148 — 158; Redington v. Redington, 3 Ridg. P. C. 106; Skidmore v. Bradford, L. R., 8 Eq. 134. A promise by one person is at law a sufficient consideration Promise. for a promise by another. McNeill v. Reed, 9 Bing. 68. Forbearance by one person to take proceedings against Portiearance. another is a very common consideration, and is valid whether it be for a certain time ( Semple v. Pink, 1 Ex. 74), or even for a reasonable time. Oldershaio v. King, 2 H. & N. 517. So forbearance to sue by bankers will support an agreement to give them security on a loan account. Alliance Bank v. Brown, 2 Dr. & S. 289. But there must be a right to sue on the part of a person in his own name at law or in equity, or his forbearance will not be a good consideration. Graham V. Johnson, L. R., 8 Eq. 36. Neither at law {Moss v. Hall, 5 Ex. 46, 49) nor in equity Adequacy or in- p2 68 Conditions Precedent. adequacy of con- siileratioii. Will be enforced in equity. Penalty or liqui- dated damages- CondltionB pre- cedent — Concurrent acts. {TownendY. Taker, L. E., 1 Ch. 458) is the adequacy of the consideration in general material to the validity of the contract, for this is a matter which the law cannot ascertain nor decide upon. See 2 Wms. Saun. 137 h; Gerhard v. Bates, 2 E. & B. 487. Agreements with a Penalty.'] Where there is an agree- ment with a penalty for non-performance of it, courts of equity have nevertheless jurisdiction to decree specific per- formance or to grant an injunction, as the case may be {Chilliner v. Chilliner, 2 Ves. sen. 528; Prebble v. Bog- hurst, 1 Sw. 309; see Logan v. Wienholt, 1 CI. & F. 611; Fox V. Scard, 33 Bea. 327; Howard v. Woodward, 34 L. J., Ch. 47), unless it be clear that the agreement was in the alternative, giving the party breaking it an option either to pay a fixed sum or to perform the agreement. Rolfe v. Peterson, 2 B. P. C. 426. Where it is stipulated that on breach of covenant or agree- ment by a person he shaU pay a fixed sum as liquidated or ascertained damages, courts in general endeavour to treat such a stipulation merely as a provision for damages accord- ing to the injury sustained, particularly where the same sum is recoverable for every breach of contract whether slight or important. Kemble v. Farren, 6 Bing. 141 ; Betts v. Burch, 4 H. & N. 506. But such a provision, when it is express and positive, will be enforced. Price v. Green, 16 M. & W. 346 ; Mercer r. Irving, E., B. & E. 563. The reservat;ion of a right to have full payment of a sum of money actually due on an existing contract, on nonpayment of a smaller sum on a particular day, is not a penalty against which equity will relieve on failure to pay the smaller sum. Thompson v. Hudson, L. R., 4 H. L. C. 1. In general an agreement to do something or pay a penalty does not entitle the person so agreeing to pay the penalty and escape per- formance of the agreement. Long v. Bowring, 33 Bea. 585; Howard v. Woodward, 34 L. J., Ch. 47. Conditions Precedent — Concurrent Acts.] What is or is not a condition precedent depends not on technical words, but on the plain intention of the parties to be deduced from the whole instrument. Roberts v. Brett, 11 H. L. C. 337; and see Hotham v. E. I. Co., 1 T. R. 638. The plaintiff in an action or suit is bound to perform what- ever is a condition precedent on his part to performance by the defendant, unless prevented by the latter, lb.; see Jones V. Barkley, 2 Doug. 684 ; Wallis v. Warren, 4 Ex. 361. Independent Coiitracts. 69 The leading principles with respect to concurrent acts Leading prin- and conditions precedent are thus stated by Serjeant Wil- ''""'='• Hams in the notes to Perdage v. Cole, 1 Wms. Saun. 320, and are as important in equity as at law in the construction of agreements. They are in substance these: — 1. If a day Time -nhicii must be appointed for the doing of any act (by A.), and the day °„Vacfo^f ™e" must or may happen before the act which is the considera- before time for tion for it is to be performed (by B.), an action may be ^t °* ""« »"'<=■■• brought against A. for non-performance before performance by B. See Mattock v. Kinglake, 10 A. & E. 50, and other Time for one- act cases cited 2 Sm. L. C. 12, 6th ed. 2. But not where the oILen"'"' '°'' day is to happen after performance by B. See Glaholm V. Hays, 2 M. & Gr. 257 ; 2 Sm. L. C. 13. 3. " Where a Promise going to covenant or promise goes only to part of the consideration gj^" »' «»isideni- and a breach thereof may be paid for in damages, it is an independent covenant or promise." Thus, on an agreement by A. to repay a loan and by B. to return securities upon repayment, the return of the securities is neither a concur- rent act nor a condition precedent. Scott v. Parker, 1 Q. B. 809 ; 2 Srh. L. C. 14. 4. " Where the mutual promises or Promise going to covenants go to the whole consideration on both sides, they are y^''/'' i;ousiaera- mutual conditions, and performance must be averred." See Atkinson v. Smith, 14 M. & W. 695 ; Bankart v. Bowers, L. R., 1 C. B. 484. 5. " When two acts are to be done at Acta to be done the same time, as when A. covenants to convey an estate '"*'""s'™<^- to B. on such a day, and in consideration thereof B. cove- nants to pay A. a sum of money on the same day, neither can maintain an action without averring a performance, or an offer to perform his own part," that is, that he was ready and willing to do so. 2 Sm. L. C. 15. Independent Contracts.^ Where there are two distinct independent con- contracts relating to one subject-matter, though the plaintiff *'^'='^- may have made default as to one contract, this will not necessarily prejudice his right to have the other performed. Phipps V. Child, 3 Drew. 709; Green v. Low, 22 Bea. 625. And if the plaintiff covenant to indemnify the defendant, and the defendant covenant for further assurance, a breach of the former covenant is no answer to a bill for performance of the latter. Gibson v. Goldsmid, 5 D., M. & G. 757. Joint and several.^ An agreement which from its terms Joint and several may be joint or several will be construed to be several, if the ™"'''''='-^- interest be several ; or joint, if the interest be joint. Brad- burne v. Botfield, 14 M. & W. 559; Keightley v. Watson, 3 Ex. 716, 721; see Sorsbie v. Park, 12 M. & W. 146; Haddon v. Ayers, 1 E. & E. 118. Though if the words 70 Foreign Contracts. expressly import a joint or several contract only, the agree- ment must, as a general rule, be construed accordingly. Id. ; and see Thompson v. Hakewell, 19 C. B., N. S. 713. CHAPTEE II. FOREIGN CONTRACTS — FOREIGN LAW. Construction of, concerning Real Estate .. . . 70 Legality or Illegality fff Fo- reign Law .. 71 Personal estate ,, . . 70 Evidence of Foreign Law , . 71 Scotland 70 Custom of Merchants 71 Contracts concerning Real Estate Abroad .. ..70 Wltat necessary for construc- tion of Foreign Contract . 71 Not valid where made, not valid here .. .. . . 71 22^-23 Vict. c. 63 .. 24 ^'25 Vict.c. 11 .. 71 72 Coiistructiuu of. Concerning real estate ; and personal estate. Contracts concerning real property, wlieresoever made, are, as a general rule, construed according to the law of the country where the property is situate, to which law the pro- perty is subject. Story, Conf. Laws, 424 — 428. Contracts concerning personalty and moveables are construed either according to the law of the country where they are made, if no other place of performance be expressly or by implication specified (Melan Y._Fitzjames, 1 B. & P. 142; see Gibbs v. Fremont, 9 Exch. 25; Fergusson v. Fyffe, 8 CI. & Fin. 121 ; Lloyd v. Guibert, L. R., 1 Q. B. 115), or according to the place of performance where it is so specified. Rothschild v. Currie, 1 Q. B. 43; Don v. Lippman, 5 CI. & Fin. 1 ; see The Halley, L. E., 2 P. C. 193. Scotland is considered a foreign country with reference to the questions now under consider- ation. Cookney v. Anderson, 1 D., J. & S. 365; Drummond V. Drummond, L. E., 2 Ch. 32. Various questions may arise where contracts, whether made here or abroad, relating to realty abroad, or contracts made out of England and not to be performed here, or contracts made here to be performed abroad, are sought to be enforced before our tribunals. A cerning real estate contract concerning realty abroad, if made between per- sons resident out of this country, caamot be enforced here ( Cookney v. Anderson, sup.), except to the extent of process out of the courts here being permitted to be served on parties abroad (see Drummond v. Drummond, sup.); nor will the court enforce a lien upon real estate abroad, though the Contracts con- Foreign Contracts. 71 plaintilf' aud defeudant are both English and resideut here, if there is no privity between them, and foreigners are in- terested in the property (^Norris v. Chambers, 29 Bea. 246 ; afF. 7 Jur., N. S. 689), though a contract between English- men in England relating to the real estate of one of them abroad may, in some cases, give a lien upon it which equity win enforce. Penn v. Ld. Baltimore, 1 Ves. sen. 444 ; see Norris v. Chambers, sup. When the contract is not bind- Not vaiiii wii.re ,, , ,-'.,. , ii'j. nifule, not vuUu mg in the country where it is made, as a general rule it here, cannot be enforced here {Alves v. Hodgson, 7 T. R. 241; Trimby v. Vignier, 1 Bing., N. C. 160), unless, perhaps, in those cases in which it would be vaUd here, and was entered into expressly with the view to performance here. A con- tract valid in the country where it is made is generally valid here {Branleij v. S. E. B. Co., 12 C. B., N. S. 63; P.Sf O. Co. Y. Shand, 3 Moo. P. C, N. S. 272; Smith v. Weguelin, 4 W. N. 139), unless of a kind expressly forbidden by our Legality or lue- laws ; for in such cases the remedy, time and mode of en- g;^"^ "' foreign forcing it depends upon the law of this country. De la Vega v. Vianna, 1 B. & Ad. 284; Huber v. Stciner, 7 Bing., N. C. 202 ; Cooper v. Waldegrave, 2 Bea. 282 ; Hope v. Hope, 8 D., M. & G. 731 ; Brooh v. Brook, 9 H. L. C. 193; Grett v. Levy, 16 C. B., N. S. 73. The penal ( Wolfe v. Oxholm, 6 M. & S. 99) and revenue, e.g. stamp, laws {James v. Cather- wood, 3 D. & R. 190) of foreign states are not recognized in this country, so far as regards the admissibility of documents in evidence. But if a contract without a stamp be void by the foreign law, such contract, if unstamped, cannot be enforced here, Alves v. Hodgson, 7 T. R. 241 ; Bristow v. Sequeville, 5 Ex. 275. What the law of a foreign country is upon any Evidence of particular point is a question of fact to be proved by advo- °'^^^ ""'■ A i A 1. ti ProvBu Dy psrsons cates or other skilled witnesses. De Bode's Ca., 8 Q. B. versed in it. 208; Sussex Peerage Ca., 11 CI. & Fin. 85; Bristow \. Sequeville, 5 Ex. 275; Trimby v. Vignier, 1 B., N. C. 151. And the custom of merchants may be proved by a merchant. Oustom of mer- Van der Donckt v. Thellusson, 8 C. B. 812. '"™'''- When a contract is made in a foreign countiy and in a what necessary foreign language, an English court having to construe it fOTcignMntract." must first obtain a translation of the instrument ; secondly, an explanation of the terms of art, if any ; thirdly, evidence of the foreign law applicable to it ; and fourthly, evidence of any peculiar rules of construction which may exist in that law, and must then itself interpret the instrument on ordinary principles of construction. Di Sora v. Phillips, 10 H. L. C. 624. By the 22 & 23 Vict. c. 63, courts in one part of her Ma- 22 & 23 vict. jesty's dominions may remit a case for the opinion in law of °' *'" 72 How Contracts may be entered into. 2+ & 26 Vict, c. 11. a court in any other part thereof (s. 1). Copies of the opinion are to be certified by an officer of the court giving it and handed to the parties (s. 2). The court is to apply the opinion to the case in which it was requested, or, if neces- sary, submit the opinion to a jury (s. 3). The Queen in council, or the House of Lords on appeal, may adopt or reject the opinion (s. 4). This act applies to all the Queen's domi- nions (s. 1). By a subsequent act (the 24 & 25 Vict. c. 11), superior courts within the Queen's dominions may remit a case, with queries or questions of law, for the opinion of a superior court of any foreign state with which a convention has been made for that purpose (s. 1), the remitting court to apply the opinion of the foreign court to the facts set forth in the case, or submit such opinion to a jury, as conclusive evidence of the foreign law therein stated (s. 2). A case may be again remitted, with or without amendments, to the same or any other superior court in such foreign state («&.). And courts in the Queen's dominions may pronounce an opinion on cases remitted by foreign courts (s. 3). CHAPTER in. HOW CONTRACTS MAT BE ENTERED INTO. Contracts, Verbal — in Writing — under Seal . . . . 72 Prima facie verbal Agreements sufficient . 72 Statute of Frauds . . 72 ith Section . . . . 72 nth Section .. . . 73 Consideration .. . . 73 Contracts, ^c. — continued. Contracts not to be per- formed within a Year . 73 Signature .. . . 74 Contracts under Seal . . 74 Non-trading Corpora- ls n Trading Corporations Prima lacic verbal Contracts, Verbal — in Writing — under SealJ\ Prima cSnt™™*^ ^^^' /'^cie it may be taken that a verbal contract is valid unless by some statute it is necessary to be in writing or under statute oJ Frauds, seal. The Statute of Frauds (29 Car. 2, c. 3) is the most important statute of this kind. Those sections of it which have reference to agreements are the fourth and seventeenth. By the fourth it is enacted, that no action shall be brought whereby to charge any executor or administrator upon any- special promise to answer damages out of his own estate (see tit. "Executors"), or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon By executor or administrator. Debt, &c. of anotlref. Valid Contracts, SfC. 73 any agreement made upon consideration of marriage (see tit. in coiwideraUon " Makkiage Skttlement"), or upon any contract or sale of "'"''■"'*'*■ lands, tenements or hereditaments, or any interest in or con- ' cerning them (see tit. "Vekdors and Pdkchasers"), or upon any agreement that is not to be performed within the space Xft to be per- of one year from the making thereof, unless the agreement '°^^f '*^'"''" """ upon which such action shall be brought, or some memo- randum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized. By the 17th section it is enacted that no contract for the I7th section, sale of any goods, wares or merchandises for the price of saie of goods for lOZ. sterling (or of that value, 9 Geo. 4, c. 14, s. 7) or i»'»^"p™i=- upwards, shall be allowed to be good except the buyer shall accept part of the goods so sold and actually receive the same, or shall give something in earnest to bind the bargain or in part of payment, or that some memorandum or note in writing of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorized. A consideration is as necessary to Consideration, support a promise now as before the statute. 1 Wms. Saun. 211, n. (2). It was held, also, upon the construction of section 4, that it was necessary that the consideration should appear in writing ( TVain v. Warlters, 5 Ea. 10) ; but this has been altered by the 19 & 20 Vict. c. 97, to this extent, that the consideration for a special promise to answer for the debt, SfC. of another need not appear in writing, or, by a necessary inference, from a written document (s. 3). With reference to contracts not to be performed within a Contracts not to year from the making of them, it has been held that this witwn°!^tar- means a contract which cannot be performed within the ,-. e. winch camio year; therefore, a contract by a person that after his death se performed. his executor shall pay a sum of money is not within the statute, for he may die within the year. Wells v. Horton, 4 Bing. 40; Ridley v. Ridley, 34 Bea. 478. And if the agree- ment be capable of being performed by one party (though not by the other) within the year, it is not within the statute. Thus, where a landlord agreed to expend a sum in improve- ment, and the tenant agreed to pay additional rent for the remainder of his term (some years), it was held that the agreement need not be in writing, as the landlord's part of it was capable of being performed within the year. Donellan V. Reid, 3 B. & Ad. 899 ; see Smith v. Neale, 2 C. B., N. S. 67. But a contract for service for more than a year, but subject to determination within the year, must be in writing. Dobson v. Collis, 1 H. & N. 81. So a contract for a partnership for more than a year. Williams v. Jones, How Contracts may be destroyed, S^-c. Signature. Contracts under seal. Non-trading cor- porations. Trading corpora- tiOUB. 5 B. & C. 108. So where the contract is for the supply of goods for more than a year, but determinable within it. Re Pentreguinea, SfC. Co., 8 Jur., N. S. 706. With respect to the signature of the party to be charged, see tit. " Venuoes AND Purchasers." In most cases the law leaves the parties to make their contracts under seal or not as thej' think fit. But where a non-trading corporation is a party to a contract, it must, as a general rule, to bind the corporation be under the com- mon seal. See Mayor of Ludlow v. Charlton, 6 M. & W. 815; Australian, SfC. Co. v. Marzetti, 11 Ex. 228; Frend V. Dennett, 4 C. B., N. S. 576. But as to trading corpora- tions the rule appears settled that it can contract without seal for any object or purpose for which it was established, but not for other purposes. South of Ireland, ^c. Co. v. Waddle, L. E., 3 C. P. 463. See Nicholson v. Bradford Union, L. R., 1 Q. B. 620, in which the previous autho- rities are considered. London Dock Co. v. Sinnott, 8 E. 6 B. 347. As to what contracts are ultra vires, see tit. " Joint Stock Company." CHAPTER IV. WHEN CONTRACTS MAT BE EXPLAINED, VARIED, RELEASED, AND RECTIFIED. Of Parol Evidence to contra- dict or vary written Con- tracts .. .. . . 74 In general inadmissible . 74 Mistalie may te corrected 75 Fraud, mAstalte or sur- prise . . . . . . 75 Parol variation.. .. 75 Alleged iy Plaintiff — by ~ ■ ' ■ .. ..75 Of Parol Evidence to explain Terms .. .. . . 76 Mercantile or Technical Terms .. .. . . 76 Custom or usage of Trade or Agriculture . , 76 Of Parol Evidence — contd. PlainTerms cannot in ge- neral be contradicted . 76 Distinct Agreenwnts . . 76 Ambiguity .. ..76 Particular character — Principal or Agent . . 77 Waiver and Discharge of Contracts .. . . . . 77 Before Breach — After Breach .. -.77 By one of several — To one of several.. ., 77 Of the Rectification of Con- tracts . . . . . . 77 In general iuad- Of Parol Evidence to contradict or vary written Contracts.'] ™ " ^' As a general rule the parties to the contract must abide by it as it is, and a written agreement between them cannot be Parol Evidence. 75 varied by pcarol ( Goss v. Ld. Nugent, 5 B. & Ad. 58 ; Brown V. Hobson, 7 Jur., N. S. 633). Where there is a parol contract and subsequent written agreement not emliritciug all the terms of the parol contract, it is a question of fact whether there was to be a distinct parol contract collateral to the written one, and evidence of the terms of the parol agree- ment is admissible. Lindley v. Lacey, 17 C. B., N. S. 578. A mistake may be coiTected if common to both parties ( Sells ^^^^^^^^^' ^ v. Sells, 1 Dr. & S. 42) ; and surprise, and of course fraud, are sufficient to prevent the coui-t specifically enforcing an agreement. But when there is no fraud, mistake or sur- Fraud, mistake prise, parol evidence to contradict the written agreement "^''U'nsc. is inadmissible, even in equity See Croome v. Lediard, 2 M. & K. 251. Where, therefore, A. agrees to sell White- acre to B., and B. agrees to sell Blackacre to A., these agreements are distinct and independent, and parol evidence that an exchange was meant is inadmissible. lb, A parol variation from the contract will not be allowed to Parol variation, be shown by the plaintiff' in a suit for specific performance of the contract with such variation, though he allege mis- alleged by plain- take or surprise {Ld. Townsend v. Stangroom, 6 Ves. 328; "*^' see Barnard v. Cave, 26 Bea. 253 ; E. Darnley v. Lon. Ch. ^ Dov. R. Co., L. R., 2 H. L. 43) ; but mistake or surprise, and of course fraud, may be relied upon by the defendant as a defence. lb.; Clowes v. Higginson, 1 V. & B. 527; Wood V. Scarth, 2 K. & Jo. 33 ; Swaisland v. Dearsley, 29 Bea. 430. And if the written agreement by mistake incorrectly state the contract, it must be executed with the variation or the bill will be dismissed. Ramsbottom v. Gros- den, 1 V. & B. 165. So the defendant may set up a parol by drfendant. declaration by an auctioneer which is at variance with the written agreement ( Winch v. Winchester, 1 V. & B. 375) ; though, as a rule, the auctioneer cannot contradict the par- ticulars or conditions. See Anson v. Towgood, I J. & W. 639. Even where there is no fraud, mistake or surprise, paroi addition, an additional parol provision, agreed upon between the par- ties and set up and proved by the defendant, must be incor- porated with the written contract or the bill will be dismissed {Martin v. Pycroft, 2 D., M. & G. 785) ; but this principle will not be applied where the contract has been to a great extent performed, and the parties cannot be restored to their original position. Voillon v. States, 2 Jur., N. S. 845. But if the plaintiff state the contract with the parol variation, submitting to perform it with or without the variation, the defendant must elect or the court will decree perfonnance of the contract without the variation. Robinson v. Page, 3 Buss. 114. 76 Parol Evidence. Mercantile and technical terms. Custom or usage of trade or agri- cultm*e. Plain terms cannot in general be contradicted. Distinct agi'ee- ments. Ambiguity. Parol Evidence to explain Terms or Expressions.^ Parol evidence is admissible to explain the meaning of mer- cantile and technical terms {Robertson v. Jackson, 2 C. B. 412) ; thus variances in bought and sold notes may be ex- plained by brokers. Bold v. Rayner, 1 M. & W. 343; see Syers v. Jonas, 2 Ex. 111. Thousand, in an agricultural lease, may be explained to mean a different number {Smith v. Wilson, 3 B. & Ad. 728) ; and the word years, in a theatrical contract, has been held to mean seasons. Grant v. Maddox, 15 M. & W. 737. So evidence of the custom of a place, or the usage of trade, is admissible to explain or add to written instruments. Johnstone v. Usborne, 11 A- & E. 549. Thus a lessee may be entitled to an away-going crop, though not mentioned in the lease ( Wigglesworth v. Dalli- son, 1 Doug. 201), unless his right be expressly restricted by covenant. Clarke v. Royston, 13 M. & W. 762. But this principle goes no further than to permit the explanation of words used in a sense different from that in which they are usually understood, or the addition of known terms not in- consistent with the written contract. Trueman v. Loder, 11 A. & E. 689—599 ; see Humfrey v. Dale, 7 E. & B. 266; E., B. & E. 1004. The plain terms or words of an instru- ment, therefore, not used in a technical sense or having some special meaning attached by local usage, cannot be contra- dicted. Thus evidence that cargo ov freight means passen- gers is inadmissible. Lewis v. Marshall, 7 M. & Gr. 729 ; see Yeates v. Pym, 6 Taun. 446 ; Smith v. Jeffreys, 15 M. & W. 561 ; Sotilichos v. Kemp, 3 Exch. 106. But of course there may be separate and distinct agree- ments, though wholly or in part relating to the same subject- matter, and one may be by parol and valid (unless required to be in writing by some statute), though the other is in writing. Thus, if parties have entered into a charter-party for a ship, a parol agreement between them for the use of the ship before the charter-party begins is good and quite inde- pendent of the charter-party. White v. Parkin, 12 Ea. 578. So a consideration, not expressed but not inconsistent with that which is expressed, may be proved ; as if a pecu- niary consideration be expressed, marriage also may be proved. Mildmay's case, 1 Rep. 176; Leif child's case, L. E., 1 Eq. 231. So the consideration of marriage may be shown under " esteem and other good considerations." Tull V. Parlett, M. & M. 472. It has been held even, that where one sum is stated as paid, a greater sum may he, proved to have been paid {Clifford v. Turrell, 1 Y. & C, C. C. 138), but not that a greater rent was to be paid than is expressed. Preston v. Merceau, 2 W. Blac. 1249. The particular business Waiver, ^c. of Contracts. 77 whifli a person carries on may be shown by parol evidence, and this may be used to explain the memorandum or contract. Neioell V. Radford, L. R., 3 C. P. 52 (on s. 17 of the Sta- tute of Frauds) ; and consider the observations in this case on Vandenbergji v. Spooner, L. R., 1 Ex. 316, in vjrhich it was held, that an agreement by A. to buy goods purchased by B. was insufficient within this section, B. not being named as seller. A person who signs as principal cannot be admitted to Particular chn- show by parol evidence that he was not such principal. ""^ '"^' Jones v. Littledale, 6 A. & E. 486. But if the principal principal or agent, sign as agent, he may be sued as principal. Jenkins v. Hutchinson, 13 Q. B. 744. Of the Waiver and Discharge of Contracts.^ A verbal Before breach. and ordinary written contract not required to be in writing under the Statute of Frauds may before breach be discharged by parol {Gibbons v. Caunt, 4 Ves. 848; Price v. Dyer, 17 Ves. 356 ; Goss v. TA. Nugent, 5 B. & Ad. 58, 65); and so it would seem may a contract in writing under this statute. lb.; Goman v. Salisbury, 1 Ver. 240; see, however, Harvey V. Grabham, 5 A. & E. 61. A contract under seal cannot, even before breach, be discharged except by release under seal. SeeiJoe d. Muston v. Gladwin, 6 Q. B. 962; Brymer V. Thames, ^c. R. Co., 5 Ex. 696. See as to agreements in substitution for others, Taylor v. Hillary, 1 C, M. & R. 7U. A contract after breach, whether in writing or under seal, After bi«ach. can only be discharged by deed, or something accepted in accord and satisfaction. See Willoughby v. Backhouse, 2 B. & C. 824; Foster v. Dawber, 6 Ex. 851. As to bills and notes, see ib. 839. A release by one of several jointly in- By one of several, terested is at law a release by all.. See Jacomb v. Harwood, 2 Ves. sen. 265. So a release to one of several jointly liable To one of several, is a release to all, unless the operation of the release be ex- pressly restricted to one. North v. Wakefield, 13 Q. B. 536 J see Owen v. Homan, 4 H. L. C. 1037. Rectifying Contracts.] In general when a contract is Grounds of. sought to be rectified it is on the ground of mistake. In cases of this description the mistake must be mutual. Sells v. Sells, 1 Dr. & S. 42; see Fowler v. Fowler, 4 D. & J. 250; Thomp- son V. Whitmore, 1 J. & H. 268 ; Metrop., fyc. Society v. Brown, 26 Bea. 454 ; comp. Broughton v. Hutt, 3 D. & J. 501; and see tit. "Marriage Settlements" and "Vendor AND Purchaser," where most of the cases on the subject of the rectification and rescission of contracts are collected. 78 Assignment, ^c. of Contracts. CHAPTER V. ASSIGNMENT AND DEVOLUTION OP CONTKACTS 78 May in general he assigned. . Unless Contract of a Personal Nature Or Stipulation contra Personal Motives for Con- tract Assignee of chose in action .. . Assigniment of Policies of As- surance Act 79 79 Effect of Bankruptcy BeatTi of one of contractmg Parties Executor of Person Aam.ng Apprentices or ClerTis , • 79 79 May in general be assigned unless contract of a personal nature ; or stipulation against assign- ment. Assignment of agreement for lease. Special motives fur agreement. Although a mere proposal, or the benefit of it cannot be assigned so as to confer on the assignee the right to accept the proposal {Meynell v. Surtees, 3 Sm. & G. 101), yet, as a general rule, a contract may, so as to give the assignee a right in equity to enforce it in his own name. But there are some exceptions to the rule. Thus, where the agreement is of a purely personal nature, depending for its execution upon the peculiar skill and knowledge of one of the contracting parties, he cannot assign it so as to deprive the other of such skill and knowledge. Stevens v. Benning, 6 D., M. & G. 223. So there may be an express stipulation against assignment, and if the agreement be for a lease or other instrument which is to contain a covenant against assignment, the agreement itself cannot, it seems, be assigned. Weatherall v. Geering, 12 Ves. 511. And it would seem that although an agreement for a lease may in ordinary cases be assigned, it will not be specifically executed at the instance of an assignee of the intended lessee, unless the latter enters into the covenants of the lease or guarantees the performance of them. Dowell v. Dew, 1 Y. & C, C. C. 345 ; comp. Morgan v. Rhodes, 1 M. & K. 435 ; O'HerUhy v. Hedges, 1 Sch. & Lef 123. There may be cases in which one party enters into a contract wholly or in part out of motives of kindness to the other party, or motives of so personal a nature in respect of such other party that an assignment by him of the contract will confer no rights as against the other contracting party. See Phillips v. D. Buckingham, 1 Ver. 227. The report in Vernon, however, is incorrect, for the court decreed the contract to be specifically executed. See ed. Raith. 230, n. (1). But it was said by Lord Eldon, commenting on this case, in Bonnett v. Sadler (14 Ves. 528), that although Lord Thurlow, in Irnham v. Child (1 B. C. C. 95), intimated a doubt whether a man, treating with a third person in trust for a second, whom he had refused to deal with, could there- Assignment, S)-c. of Con/racts. 79 fore set it aside ; he (Lord Eldon) could not possibly admit that it might not, under some circumstances, be a decisive answer to a bill for the specific performance of an agreement. In general the assignee of a chose in action, though he Assignee of chose may sue in equity in his own name, can only do so at law in '" '>""''"• the name of his assignor. There are a few statutory excep- tions. Thus, by the 30 & 31 Vict. c. 144, "The Policies of Assignment of Assurance Act, 1867," an assignment of a policy of assurance ^jjl^'*^ °* '^^'"' to a person entitled in equity to receive and give a discharge for the moneys assured, gives him a right to sue in his own name on the policy, where he has given due notice of the assignment to the office (ss. 1, 3). This act does not apply to policies granted nor to contracts for payment of sums of money, either under the 16 & 17 Vict. c. 45, passed for consolidating the laws relating to the purchase of govern- ment annuities through the savings' banks (see ss. 10, 11, 12), or under the 27 & 28 Vict. c. 43 (amending act). See s. 8. So under the Bankruptcy Act (32 & 33 Vict. c. 71), the assignee of a bankrupt's chose in action may sue in his own name (s. 111). The effect of bankruptcy is to vest in the bankrupt's Bankruptcy, trustee (32 & 33 Vict. c. 71, "Bankruptcy Act, 1869") [formerly assignees], the benefit of all contracts made with him before his bankruptcy {ib. s. 15 (3) ; s. 4 "Property," and see s. 23 ; see also 12 & 13 Vict. c. 106, s. 141 ; Beck- ham V. Drake, 2 H. L. C. 579 ; Whitmore v. Gilmour, 12 M. & W. 808) ; or it would seem afterwards, but before he has obtained his certificate of discharge. See Bankruptcy Act, 1869, s. 15 (3). If the trustee disclaims the contract, it is to be considered as determined from the date of the order of adjudication {ib. s. 23). As a general rule the benefit or burthen, as the case may Deaiiiofoncof be, of the contracts of a person pass to his executors or ad- contracting ministrators, who may enforce or are liable to perform them, '""^"^' although they are not named in the contract, and the heir is ( Williams v. Burrell, 1 C. B. 402 ; and see Wms. Exors. 1590 et seq.) ; the principal exception to this rule is where the contract is of such a personal nature that only the con- tracting party can perform it, — for instance, a contract to write a book or the like. Marshall v. Broadhurst, 1 Tyrw. 349 ; see Wentworth v. Cock, 10 A. & E. 42 ; Stubbs v. Holywell R. Co., L. E., 2 Ex. 311. So upon this principle Executor of person no liability attaches to the executors of a person havino- 'f ^"w apprcn- .. •', ' ■\ p ,1 . n 1 . ^ . '•""' ^"t-j tices or articled apprentices, to provide for their further instruction, though clerks, they will be hound to perform their testator's covenant to waiwtem the apprentices. Wms. Exors. 1631. If a premium has been paid to an attorney with an articled clerk, and the 80 Legality of Contracts. former dies during the continuance of the articles, the court will direct a proportionate part of the premium to be re- funded. Hirst V. Tolson, 2 Mac. & G. 134. CHAPTER VI. OP MATTERS AFFECTING THE LEGALITY OF CONTEACTS. Illegality generally . . . . 80 Effect of 80 Any Party to Contract may set up . . . . 80 Sale of certain Offices . . 80 To compromise Felonies. 81 Gaming — Stock Jobbing 81 Restraint of Trade . . 81 Immorality . . . . 82 Past or future Cohabita- tion . . .. . . 82 Immoral Publications . . 82 Champerty and Maintenance —Pretended Titles . . 82 Cliamperty — Mainte- nance — What.. .. 82 82 .. 83 Champerty, Sfc. — continued. Sale of Right to Liti- gate Right to be enforced Suit Purchase of Shares to institute Suit . . .. 83 Agreement to give part of Property arising from Suit .. . . 83 Contract valid Abroad but impeachable here . 83 Pretended Rights . . 84 Expectancies . . . . 84 To leave by Will . . 84 ADy party to con- tract may set up its illegality. Sale of certain ofllceg. Illegality.] Whenever the contract which a party seeks to enforce is, expressly or by implication, forbidden by the common or statute law, no court will lend its assistance to give it effect (see Cope v. Rowlands, 2 M. & W. 157; Ritchie v. Smith, 6 C. B. 462) ; and parol evidence is ad- missible to show the nature of the transaction, although arising out of or connected with an instrument in writing or under seal. Collins v. Blantern, 2 Wils. 347; Shakell v. Rozier, 3 Sc. 59. Any parly to an illegal contract may set up its illegality. This is allowed, not on his account, but out of consideration for the public benefit. See Solman v. Johnson, Cowp. 343 ; Thomson v. Thomson, 7 Ves. 470 ; Reynell v. Sprye, 1 D., M. & G-. 660. The 5 & 6 Edw. 6, o. 16, ss. 2, 3, avoids agreements for the sale or deputation of certain offices concerning the ad- ministration of justice and the revenue, except such ofl[ices in which persons have estates of inheritance (s. 4). The pro- visions of this act are extended by the 49 Geo. 3, c. 126, s. 1, to Scotland and Ireland, and to all offices in the gift of the crown, and all commissions, civil, naval or military, and to all places and employments under government here or in any part of the dominions of the crown or the East Indies. Illegality of Contracts. 8 1 Commissions in tlie army at regulation prices and oflSces legally saleable at the time of the passing of the act are ex- cepted (ss. 8, 9). Hartwell v. Hartwell, 4 Ves. 815. A contract to assign the fees of a gaoler is void. Meth- wold V. Walbank, 2 Ves. sen. 238. So a contract by a public officer to pay over the excess of his fees beyond a certain sum to the body appointing him. Corp. Liverpool V. Wright, Johns. 359. Agreements to compromise felonies and misdemeanors of to compmimise a public nature are also void, upon grounds of public policy '^™'''' '^' {Keir V. Leeman, 9 Q. B. 371, 398 ; see Johnson v. Ogilhy, 3 P. W. 279 ; Cluhh v. Hutson, 18 C. B., N. S. 414) ; and auy agreement having for its object the stifling of a criminal prosecution will be set aside in equity. Williams v. Bayley, L. R., 1 H. L. 200. By the 8 & 9 Vict. c. 109, s. 18, contracts by parol or in Gaming. vFriting by w^ay of gaming or wagering are null and void, and no suit is maintainable for recovering money, or any valuable thing alleged to be won upon or deposited to abide the event of any wager. The act does not apply to subscrip- tions or agreements to subscribe towards any prize or money to be awarded to the winner of any lawful game. A boud for a racing debt, given to prevent steps being taken by the obligee which would have involved the obligor in considerable pecu- niary loss, is valid. Bubb v. Yelverton, L. R., 9 Eq. 471. But whether a bond given for a racing debt, simpliciter, would be good, is doubtful. The Stock Jobbing Acts, 7 Geo. 2, stockjobbing. c. 8, and 10 Geo. 2, c. 8, are repealed by the 23 & 24 Vict. c. 28. Contracts wholly in restraint of trade, — for instance, that a Restraint of trade. man shall not carry on business anywhere, though only for a limited time, — are void. Mitchel v. Reynolds, 1 P. W. 181 ; Ward V. Byrne, 5 M. & W. 548. Whittaker v. Howe, 3 Bea. 383, where the agreement was, not to practise as a solicitor in Great Britain, appears contra. See, however, Nicholls v. Stretton, 10 Q. B. 353; Proctor v. Sargent, 2 M. & Gr. 33. But contracts not to carry on business in, or within a certain distance of, a particular place, though unlimited as to time, are valid. Hitchcock v. Coker, 6 A. & E. 438; Harms v. Parsons, 32 Bea. 328; Leather Cloth Co. v. Lorsont, L. R., 9 Eq. 345: see Avery v. Langford, I Kay, 663 — 667, — in the note to this case there is a very carefully compiled and useful summary of the decisions on the question from 1711 to the date of the report, 1854: and see Benwell v. Inns, 24 Bea. 307; Tallis v. Tallis, 1 E. & B. 391. The cove- nant is divisible, and, although part may be unreasonable, the rest, if reasonable, may be enforced. Mallan v. May, w. G 82 Maintenance and Champerty. Immorality. Past or future co- habitation. Immoral puTDlicfl^ lions. 1 1 M. & W. 653. The covenantor is not released from his covenant by the death of the covenantee {Hastings v. Whitley, 2 Ex. 611), or his retirement from the business on the sale of which the covenant was entered into. Elves v. Crofts, 10 C. B. 241. Agreements founded upon an immoral consideration can- not, as a general rule, be enforced. Thus a lessee of a house used as a brothel, who assigns it for value, knowing it is intended to be used for the same purpose, cannot recover against his assignee on a covenant contained in the assign- ment. Smith V. White, L. E,., 1 Eq. 626 ; Pearce v. Brookes, L. E., 1 Ex. 213; Cowan v. Milbourn, L. E., 2 Ex. 230. Bonds or agreements to induce future cohabitation are invalid {Gray v. Mathias, 5 Ves. 286); but otherwise, if given in respect of the injury sustained by reason of past cohabitation. lb.; Knye v. Moore, 2 S. & S. 260; Hall v. Palmer, 3 Ha. 532; see Keenan v. Hundley, 2 D., J. & S. 283. Contracts relating to the sale or publication of libellous or immoral books or prints cannot be enforced. Stockdale v. Onwhyn, 5 B. & C. 173; Lawrence v. Smith, Jac. 471. Maintenance. Cliamperty. Sale of right to litigate. Maintenance and Champerty — Pretended Titles.'] Con- tracts involving maintenance or champerty are illegal. Main- tenance is where a man gives or delivers to another that is plaintiff or defendant in any action any sum of money or other thing to maintain his plea, or takes great pains for him when he hath nothing therewith to do. Champerty is a species of maintenance, being [originally] "a bargain with a plaintiff or defendant to divide the land, campum partiri, or other matters sued for, between them, if they prevail at law, whereupon the champertor is to carry on the party's suit at his own expense." Eadcliffe v. Anderson, E., B. & E. 825. It is not necessary, however, to constitute champerty, that the agreement should be for an actual division, nor that it should relate to land. If the bargain be, that one party is to have part of the thing in dispute, or some profit out of it, it is sufficient. Stanley v. Jones, 7 Bing. 369. The assignment of a mere naked right to litigate, for instance, to set aside a conveyance for fraud, cannot be enforced on this ground (Prosser v. Edmunds, 1 Y, & C, Ex. 481 ; see Stevens v. Bagivell, 15 Ves. 139; Wood v. Doivnes, 18 Ves. 120; Chohiwndeley v. Clinton, 4 Bli. 1 ; Reynell v. Sprye, 1 D., M. & G. 660; Sprye v. Porter, 7 E. & B. 58), for the right to complain of a fraud is not a marketable commodity. De Hoghton v. Money, L. E., 2 Ch. 164. It Maintenance and Champerty. 83 is not, however, in every case that the sale and purchase of a right enforceable only by suit, or of the subject- matter of a suit, amounts to champerty or maintenance : thus a contract to purchase an interest in land which is the Buying subject- subject of a suit, is not void on the ground of maintenance letter of suit, (see Harrington v. Long, 2 M. & K. 590); and a mere pro- vision by the purchaser to indemnify the vendor against costs and expenses does not render such a contract invalid. Hunter v. Daniel, 4 Ha. 420; see Knight v. Bowyer, 2 D. & J. 421, and consider Harrington v. Long, sup. So a creditor may assign his interest in a debt, even after h« has instituted a suit to recover it ( Myers v. United Guarantee Co., 7 D., M. & G. 112); and a party claiming a fund in court may mort- or taking mort- gage it pendente lite to enable him to prosecute his claim. matte°r ot^sutt.'' Cockell V. Taylor, Collett v. Preston, 15 Bea. 103. Nor is it champerty where the right purchased was origi- nally clear, but the litigation is the result of circumstances subsequently arising or subsequently becoming known. Wil- son V. Short, 6 Ha. 366. If a legatee, who is too poor to sue, assign his legacy for less than it is worth to a person who buys it for the purpose of enforcing payment by suit, this does not constitute champerty nor maintenance. Tyson v. Jackson, 30 Bea. 384. Nor does a purchase of shares in a rnrchase of shares company to enable a person to institute a suit against the *° '°s''"'''^ ="''• company to restrain the carrying out of an agreement alleged to be illegal. Hare v. L. ^ N. W. R. Co., Johns. 722. Con- sider the cases on this subject, tit. "Joint Stock Com- panies." A conveyance, whether voluntary or for valuable con- sideration, of property which the grantor has previously conveyed by a deed voidable in equity, is not void on the ground of champerty, and the right to impeach the first conveyance follows and is consequent upon the eaecution of the second. Dickinson v. Burrell, Stourton v. Burrell, L. R., 1 Eq. 337. Where, however, a person having a title to property agreed Agreement to give with a solicitor to give him a portion of the profits arising ^i^g ^^ ^mt. from the successful prosecution of a suit, to establish his right to the property upon being indemnified against the costs of the proceedings, it was held that the contract amounted to champerty and maintenance, but that the client was not disqualified from suing, since his title was inde- pendent of, and not arising from, the illegal contract, but that the case would have been different if the solicitor had been the party suing. Hilton v. Woods, L. R., 4 Eq. 432 ; see Earle v. Hopwood, 9 C. B., N. S. 566. An agreement contract vaiia made abroad, but to be carried into effect in this country, p^S^bifi,™' g2 84 Maintenance and Cham-perty. Pretended rights or titles. Expectancies, To leave by will. which would be void on the ground of champerty if made here, is not the less void because made in a foreign country, though such a contract may be legal there. Grell v. Levy, 16 C. B., N. S. 73. Agreements for the sale of pretenced or pretended rights or titles to lands are prohibited, except in certain cases, by the 32 Hen. 8, c. 9. See Cholmondeley v. Clinton, 4 BL, N. S. 4 ; Hitchins v. Lander, G. Coop. 34; Wall v. Stubbs, 2 V. & B. 354. The sale of a mere expectancy is not within the statute. Cook v. Field, 15 Q. B. 460. Agree- ments to divide property which may be left or descend to one or other of the contracting parties are valid. Beckley V. Newland, 2 P. W. 182; Wether ed y. Wethered, 2 Sim. 183; Harwood v. Tooke, lb. 192; L.yde v. Mynn, 1 M. & K. 683 ; Houghton v. I^ees, 1 Jur., N. S. 862 ; Cook v. Field, 15 Q. B. 460. In connection with this subject it may be observed that contracts for valuable consideration to devise or bequeath property will be enforced against persons claiming the property under the will or by reason of the intestacy of the party so contracting. Goilmere v. Battison, 1 Ver. 48; see Needham v. Smith, 4 Euss. 318; Eyre v. Munro, 3 Jur., N. S. 584. But a contract of this descrip- tion must be in writing, where so required by the Statute of Frauds ; for instance, if relating to interests in land. Such a contract, however, is capable of being performed within a ypar, and is not, therefore, within that branch of the 4th section which relates to contracts not to be performed within a year. Ridley v. Ridley, 34 Bea. 478. Contracts to leave property by will are not uncommon in marriage settlements. See that title. As to mutual contracts to leave property by will, see Ryan v. Daniel, 1 Y. & C, C. C. 602. Doctrine of Court. 85 CHAPTER VII. OP THE REQUISITES OF CONTRACTS IN EQUITY. General Doctrine of Equity. . 85 Plaintiff must submit his Legal Rights to EquitT/ 85 Specific Performance is i II tlie nature of Indul- gence .. . . . . 85 General Requisites of .. 85 Contract must he complete . . 86 Mag te complete, though further Contract in- ..86 Certainty .. .. ..86 All Terms to be stated . . 86 Mutuality .. .. . . 86 Infant cannot sue . . 86 Person selling Estate not his omn .. . . 87 As to Services .. . . 87 Exception — Statute of Erauds .. ..87 Want of, may be waived 87 Unfairness — Fraud — Undue Pressure or Advantage . . 87 Mental Incapacity .. 87 Want of proper Advice.. 88 Unfairness, ^c. — continued. Breach of Trust . . \ Fraud makes Contract Intoxication . . . . 88 Undue Pressure— Under Value 88 Imprisonment .. . . 89 Hardship — Inequality .. 89 Must existmhen Contract entered into .. . . 89 Where execution of Con- tract a forfeiture , . 89 Representations — Misrepre- sentations .. . . . . 89 Effect of 89 Evidence of .. . . 90 KnoKledge of Untruth . . 90 Reliance on Misrepre- sentation .. ..90 Concealment . . . . 90 3Iistalie — Surprise .. . . 90 Mistake of Facts . . 90 3Iisconception of Effect 91 Surprise . . . . . . 91 General Doctrine of the Court."] A contract may be free from illegality, and may yet be of such a nature or at- tended by such circumstances that equity will not specifically execute it but leave the aggrieved party to his remedy (if any) at law. And if resort be had to equity by a suit for piainOff in equity specific performance, whatever may be the legal rights of jKhL^^"''.I°^^' the plaintiff, he must put those legal rights under the con- trol of the court, and cannot proceed on them at law without its leave. Fkelps v. Prothero, 7 D., M. & G-. 722. Specific performance is not of course because there is a Spectflc perform- contract, but is a relief in the nature of indulgence peculiar nature of inaui- to the jurisdiction of equity. Cox v. Middleton, 2 Drew, gence. 209; see Martin v. Mitchell, 2 J. & W. 420; Clowes v. Higginson, 1 V. & B. 524; Haywood v. Cope, 25 Bea. 140. Before a contract will be specifically executed, it is as a General requuites very general rule necessary that it should be presented to the "'■ court in a complete form, certain, free from illegality and fraud, and the conduct of the party seeking to enforce it must not be such as to preclude the court from aiding him ; for though further contract intended. 86 Contract must be complete — Certainty. contracts must be certain, fair and proved as by law required. See Ld. Walpole v. Ld. Oxford, 3 Ves. 420. Therefore, where a contract is required to be in writing, as in some cases it is, by the Statute of Frauds {ante, p. 72) and some other statutes, a verbal agreement is insufficient, unless in some exceptional cases. See tit. " Vendor and Pue- CHASBE." Contract must be complete.} The contract between the parties must be complete ; the cases on this head will be found collected under " Vendoe and Puechasek," as nearly all have arisen upon questions properly belonging to that title, and on the point whether letters or other documents taken together form a complete agreement or not within the May be complete statute. It Only remains to observe, that if there be a com- plete contract, its validity and efficacy as such will be in no way affected merely by reason of a further and more formal contract being contemplated by the parties. Thomas v. Bering, 1 Ke. 729—741 ; Hey worth v. Knight, 17 C. B., N. S. 298 ; Chinnock v. Marq. Ely, 11 Jur., N. S, 329 ; see Lindsey v. Lynch, 2 Sch. & L. 1 ; Ridgway v. Wharton, 6 H. L. C. 238. " Certainty.} Equity cannot decree the performance of an All terms to be agreement any of the terms of which are uncertain. Thus ®''''°''' it will not specifically execute an agreement for the sale of property, material terms of the sale not being stated {Plum- mens v. Robins, 3 D., J. & S. 88), or the amount of purchase-money being uncertain ( Gourlay v. D. Somerset, 19 Ves. 431), or where, the agreement being for the sale of leasehold property, the term is uncertain (Fitzmaurice V. Bayley, 9 H. L. C. 78 ; Southern v. Harriman, 14 W. K. 487; and' see Taylor v. Portington, 7 D., M. & G. 328; Gardner v. Fooks, 15 W. R. 388), or it is uncertain to whom ground-rent is payable. Pegler v. White, 33 Bea. 403. In a suit for specific performance of a vague agree- ment relating to property, the court, having regard to its terms, will consider the surrounding circumstances and con- duct of the parties in dealing with the property between the making of the agreement and the commencement of the suit. Oxford V. Provand, L. li., 2 P. C. 135. Mutuality.} As a general rule also, the court will not specifically execute contracts that are not mutually binding on the parties at the time they are entered into. As to the rule at law, see Arnold v. Mayor of Poole, 4 M. & Gr. Infant cannot sue. 860, 896. Thus, a party contracting with an infant cannot OWD. 3Iutuality — Unfairness — Fraud. 87 be sued, for lie could not sue {Flight v. Bolland, 4 Euss. 298) ; and a vendor of an estate, without title at the time he Person settling sells it, cannot sue the purchaser, if the latter retires from ^"t^*^ '"'"'"' the contract as soon as he discovers the want of title (Hog- gart v. Scott, 1 R. & My. 293 ; see Sncesby v. Thome, 7 D., M. & G. 399 ; Forrer v. Nash, 1 1 Jur., N. S. 789) ; neither can a tenant in tail enforce a contract entered into by the tenant for life. Ricketts v. Bell, 1 De G. & Sm. 335. So As to services. where part of a contract relating to the sale of a patent and formation of a company to work it, was, that the vendor, the plaintiff, should give his services for two years and use his best endeavours to improve the invention, as the contract could not have been enforced against him, the court would not specifically execute it in his favour. Stoeker v. JVed- derburn, 3 K. & J. 393. As to contracts by railway con- Railway repairs. tractors to keep a railway in re|)air and work it upon certain terms, see Johnson v. Shrews. S^ Bir. R. Co., 3 D., M. & G. 914. As exceptions to this rule as to mutuality where the con- Exceptions. tract is required to be in writing under the Statute of statute of Frauds. Frauds, and one party alone has signed it, he is bound, though the other party is not, until, by some subsequent signature or some other act, he adopts it. See tit. " Vendok AND Purchaser." And a vendor not having a title at the date of the contract may, if he can, and the purchaser does not retire from it {supra), show a good title at the hearing. Mortlock V. Buller, 10 Ves. 315; Hoggart v. Scott, 1 E. & My. 293. The original want of mutuality cannot be set up if it has want ot mutuality been waived, as where a vendor has no title at the time of ""^ ^^ waived. the contract, and the purchaser, notwithstanding, proceeds to investigate the title and make requisitions, &c., he cannot afterwards allege want of mutuality. Salisbury v. Hatcher, 2 Y. & C, C. C. 54. And if a vendor, having a partial in- terest only in property, sell the whole, though he could not enforce the, contract against the purchaser, the latter may, as a rule, take what the vendor has, with an abatement in the price for what he has not. Mortlock v. Buller, 10 Ves. 315. Unfairness — Fraud — Undue I*ressure or Advantage.^ Mental jncapaciiy. A contract must be fair at the time it is entered into, or the court will not specifically execute it. See Vivers v. Tuck, 1 Moo. P. C, N. S. 516. The circumstances under which a contract was made, as well as the terms of the contract itself, will be considered, to enable the court to judge of the fairness of the transaction. Thus, mental incapacity, though not amounting to insanity {Clarkson v. Haiiway, 2 P. W. Undue Pressure. Want of proper advice. Breach of trust. Fraud makes con- tract voidable ; Fraud by third person. Undue pressure. Under value. 203) or want of proper advice, where necessary to a due understanding of the contract {Stanley v. Robinson, 1 R. & My. 527), will be sufficient to induce a court of equity to re- fuse specific execution of the contract. In Heffer v. Mos- tyn (36 L. J., Ch. 372), where A. paid B. not to bid at an auction at which A. bid and became the purchaser, it was held by the Master of the Rolls, though apparently with reluctance, that this circiimstance did not affect A.'s right to specific performance against the vendor, the price bid being the reserved price. And see Galton v. Emuss, 1 Coll. 243 ; Re Carew's Estate, 26 Bea. 187. Execution of contracts, the performance of which would be a breach of trust on the part of trustees, wiU not be decreed ( Ord v. Noel, 5 Madd. 438 ; Mortlock v. Buller, 10 Ves. 292 ; Bridger v. Rice, \ J. & W. 74 ; Evans v. Jackson, 8 Sim. 217), nor where the execution of the con- tract would be an injury to the cestuis que trust. Sneesby V. Thome, 7 D., M. & G-. 399. Thus, if a trustee agree to grant a lease which he has no power to do under the instru- ment creating the trust {Harnett w. Fielding, 2 Sch. & Lef. 549 ; Bellringer v. Blagrave, 1 De G. & Sm. 63), or to allow a purchaser of the trust estate part of the purchase- money in discharge of the trustee's private debt ( Thompson V. Blackstone, 6 Bea. 470), execution of the contract will not be enforced. A contract induced by fraud is not void but voidable. Oakes V. Turquand, L. E., 2 H. L. 325. See Misrepre- sentation, post, p. 89. A contract between A. and B., fair as regards them, may be enforced by either, though brought about by the fraud of a third person and in order to benefit himself Bellamy v. Sabine, 2 Ph. 425. An answer is sometimes set up that the defendant was intoxicated at the time of his entering into the contract ; but the court will not assist a party to a contract merely on the ground that he was intoxicated: he must show that the other contracting party drew him into that state in order to take advantage of him in the transaction, and this obviously is a species of fraud. Cooke v. Clayworth, 18 Ves. 12; Shaw V. Thackray, 1 Sm. & G-. 537 ; Butler v. Mulinhill, 1 Bligh, 137; Wiltshire v. Marshall, 14 W. E. 602. A contract of sale which a vendor is induced to enter into under undue pressure and at an undervalue will be set aside. Ford V. Olden, L. R., 3 Eq. 461; Summers v. Griffiths, 35 Bea. 27; see for other cases of this class, post, tit. " Vendor and Pdechasee." So an advantage or security obtained by working on the fears of any one, though without any direct threat, is void, where, for instance, it is obtained from a parent fi'om the fear of disclosure of a forgery com- Hardship — Inequality. 89 mitted by his son. JFilUams v. Bayley, L. R., 1 H. L. 200; see Scott V. Scott, 11 Ir. Eq. E. 74. Imprisonment is no imprisonment bar to dealings or contracts with reference to property ; but the transaction must be fair, and will be carefully examined into by the court. Brinkley v. Halm, 1 Dru. 175. Hardship— Inequality.^ Sometimes the hardship or inequality of the contract will induce the court to refuse specific performance of it. Kimberley v. Jennings, 6 Sim. 340 ; Shrewsbury, Sfc. Co. v. L. Sf N. W. R. Co., 6 H. L. C. 113. In general it is necessary that the hardship should Must exist when have existed at the time when the contract was made ; if fair ^"o."^' ^^^■'^ then, subsequent events will not in general influence the court, though the bargain may iu consequence have become a hard one for either party. Lawder v. Blackford, Beat. 522. If however such subsequent events have been occa- sioned by one party, this may induce the court to refuse specific performance at his instance. D. Bedford v. Trus- tees of Br. Mus., 2 M. & K. 552. If the execution of the where execution -contract would entail a forfeiture of some interest on one of °1S'?'/1S' ."■,'"'''* . .,, . , , .^ entail forfeiture. the parties, the court will not m general decree specific per- formance, as if part of the purchase-money of property agreed to be sold would be forfeited by the vendor if he sold. Faine v. Brown, cited 2 Ves. sen. 307 ; see Peacock V. Penson, 11 Bea. 355. So where a mortgagee with power of sale, who afterwards became owner under a fore- closure decree, sold inadvertently as mortgagee, he was not compelled to convey as such under the power of sale, as that would have involved the risk of opening the foreclosure de- cree. Watson V. Marston, 4 D., M. & G. 230. And where trustees had, in a contract for sale, agreed to exonerate an estate from incumbrances, the court refused specifically to execute it against them, as it was uncertain whether the purchase-money would be sufficient to discharge the incum- brances. Wedgwood v. Adams, 6 Bea. 600. Representations or Misrepresentations.^ A representation Effect ot by one party to the contract will as a general rule be a ground for compelling him to make good the representation {Pulsford V. Richards, 17 Bea. 87), or where it is untrue for refusing specific performance i^Cadman v. Horner, 18 Ves. 10), or for rescinding the contract. Pulsford v. Richards, sup. ; Wilde v. Gibson, 1 H. L. C. 605; 12 Jur. 527 ; Rawlins v. Wickham, 3 D. & J. 304 ; Piggott v. Stratton, 1 D., F. & J. 33; Behn v. Burness, 3 B. & S. 751 ; Smith v. Eay, 7 H. L. C. 750. The representation must be of a nature calculated to induce the other party to 90 Representations or Misrepresentations. Evidence of. Knowledge of un- truth. Concealment, enter into the contract. See Reynell v. Sprye, 1 D., M. & G. 660 ; Natl. Exch. Co. v. Drew, 2 Macq. H. L. 103. And when it relates to property, the evidence of the repre- sentation and of the property to which it relates must be clear. Turner v. Ince, 5 Jur., N. S. 1072. Where there is a misrepresentation of a material fact, it would seem not to be necessary, that the party making the misrepresenta- tion should know that it is untrue ; it is enough that he does not know it to be true. Ainslie v. Medlycott, 9 Ves. 21 ; Burrowes v. Lock, 10 Ves. 476 ; Price v. Macaulay, 2 D., M. & G. 339 ; Higgins v. Samels, 2 J. & H. 460 ; Reese River, ^c. Co. v. Smith, L. R., 4 H. L. 79, per Ld. Cairns. See the decisions at law, Evans y. Edmonds, 13 C. B. 777, 786; Comfoot v. Fowhe, 6 M. & W. 358; and comp. Vigers v. Pike, 8 CI. & F. 562 ; Collins v. Evans, 5 Q. B. 805. See also further on the subject of misrepresenta- tion, Murray y. Mann, 2 Ex. 538; Freeman y. Cooke, ib. 654; Att.-Gen. v. Stephens, 1 K. & J. 748, 749; Barry y. Croskey, 2 J. & H. 1 ; Gerhard v. Bates, 2 E. & B. 476; Barwick v. Eng. Jt. St. Bank, L. E., 2 Ex. 259. In such cases, however, to induce the court to refuse specific performance on the ground of misrepresentation, it must be shown that the contract was entered into upon the faith of the misrepresentation. Thus, if the person to whom it is made himself inquires into the truth of the matter mis- represented, he is not misled, and cannot afterwards set up the misrepresentation. Attwood v. Small, 6 CI. & Fin. 232; Clapham v. Shilito, 7 Bea. 146 ; Jennings v. Broughton, 5 D., M. & G. 126 ; comp. Higgins v. Samels, 2 J. & H. 460. Concealment of facts by one contracting party material to be known to the other will, in certain cases, be a bar to specific performance. Shirley v. Stratton, 1 B. C. C. 440 ; Small Y. Atwood, 6 01. & F. 232 ; consider the judgment in Fuller V. Wilson, 3 Q. B. 58 ; and see post, tit. " Vendor AND PuBCHASBR." Giving imperfect information is equiva- lent to concealment. Walker v. Symonds, 3 Sw. 73. To constitute fraud, however, there must be an assertion of some- thing false within the knowledge of the party asserting it, or the suppression of that which is true and which it was his duty to communicate. Horsfall v. Thomas, 1 H. & C. 100. See the cases at law as to contracts by a debtor with some of his creditors in fraud of the others, Chit. Con. 631 et seq. Mistaito of fnrts. Mistake — Surprise.] A oontract entered into under a mutual mistake of facts will be set aside. Cochrane v. Willis, L. R., 1 Ch. 58; Cooper Y.Phibbs,L. R., 2 H. L. 149 ; Mistake — Surprise. 91 see Higginson v. Clowes, 1 V. & B. 524 ; Leuty v. Hillas, 2 D. & J. 1 10. The mistake must be as to some matter of fact, not of law. Irish, Sfc. Co. v. Johnson, 6 II. L. C. 798 ; consider, as to the distinction between law and fact, Cooper V. Phibbs, sup. An agreement relating to the dis- tribution of the personal estate of an intestate, founded on a mistake by one party as to the value of his share, will bo set aside. Cocking v. Pratt, 1 Ves. sen. 400. So where a person buys his own estate by mistake. Bingham v. Bing- ham, ib. 126 ; and see tit. " Vendor and Purchaser." Sometimes, where the mistake is on one side only, the person making it may correct it, and will not be bound by it. Thus, if a purchaser buy under a mistake, which is not attributable to his own negligence, but in part to the state- ments of the vendor, the contract will not be enforced {Moxey v. Bigwood, 12 W. E. 811) ; so if by mistake he has bid for tlie wrong lot. Malins v. Freeman, 2 Ke. 25. So a vendor is not bound by a mistake in the amount at which property is offered for sale where the mistake is immediately corrected, though after acceptance of the offer. Webster v. Cecil, 30 Bea. 62 ; see Stcaisland v. Dearsley, 29 Bea. 430 ; Day v. Wells, 30 Lea. 220 ; Garrard v. Frankel, ib. 445. It is no ground for refusing specific performance, that the Misconception oi object which one of the parties had in view when entering ^^'"^'• into the contract will not be effectuated on the completion of it. Thus, if a person agree to purchase land in order to erect a miU upon it, for which purpose the consent of some third person is necessary, who refuses to give it, this will not relieve the purchaser from the performance of the con- tract. Adams v. Weare, 1 B. C. C. 567. The court will in some cases refute to enforce a contract, surprise. or will order it to be delivered up on the ground of sur- prise, where the parties have not understood the effect of it. Willan V. Willan, 16 Ves. 72 ; and see tit. " Vendor and Purchaser." 92 Complete Specific Performance. CHAPTER VIII. OF SPECIFIC PEEFOEMANCE. Sect. 1. — Complete Specific Performance. Complete execution of Con- Partnership Contracts 94 tract . . 92 To refer to Arhitration 94 Doctrine of Conrt as to par- As to Awards 94 ticvlar Contracts . . 92 To rorite a Booh 94 Co i-enant to do future Acts.. 92 To perform at a Theatre . . 94 Principal and accessory Not to apply for Act of Par Agreements 93 liament 94 To malie Railmays . . 93 For sale of Goodwill 95 To BuiU 93 Business of Attorney 95 To morlt Mines 94 Negative Contracts .. 95 Miring and Sermce . . 94 Injunction 95 Agency Contracts 94 Laches — Acpdescence 95 court :ia to par- ticular contracts. Equity must in In Chapters VI. and VII. I have endeavoured to show in fomp'ioteiy'ex- *° what cases equity will not interfere by reason of the ille- ecuto the contract, gality of the contract or from its being affected by some other Doctrine of the matter fatal to the exercise of the jurisdiction of the court. There are besides some particular agreements which, with some exceptions, will not be specifically executed in equity upon the ground chiefly that it cannot wholly execute them. To a certain extent, however, the jurisdiction of courts of equity has been enlarged by the 21 & 22 Vict. c. 27, enabling them to give damages {post). At the present day, therefore, equity will sometimes decree execution of part of a contract, with damages for that part which it does not specifically execute (see Middleton v. Greenwood, 2 D., J. & S. 142; and comp. the cases hewers v. E. Shaftesbury, ^c, post, p. 96) ; and some of the cases presently cited, which were decided before the act last referred to was passed, must now be con- sidered, having regard to the enlarged powers of the court. The general rule, however, is, that the court must be able specifically to execute every part of the agreement and at the time that its interposition is called foi". Upon this principle, if under the agreement one party to it is to do something at a future time, which the court cannot enforce, it will not interfere. Gervais v. Edwards, 2 Dr. & War. 80; see IVaring v. 3Ian. Sheff. H^ Lin. R. Co., 7 Ha. 492; mils V. Croll, 2 Ph. 60 ; Blackett v. Bates, L. R., 1 Ch. 117. But an agreeriient for purchase, the purchase-money to be paid by instalments, will be enforced. Gervais v. Edwards, 2 Dr. & War. 83. And as the court cannot spe- cifically execute a contract to do certaXxi future acts, it will Covenant as to future acts. Complete Specific Performance. 93 not decree, as an equivalent, a coiH'nant to do them {Stacker V. Wedderburn, 3 K. & J. 393, 405.; see Blackct v. Bates, sup.), unless it is part of the agreement that a covenaut shall be entered into ( TVilsou v. f^Vest Hartlepool, Sfc. Co., 2 D., J. & S. 475); and a contract to do certain thingf! and execute a deed, the deed being of the essence of the contract, will be enforced. Granville v. Betts, 19 L. J., N. S., Ch. 32. The court will not specifically execute an accessory principal ami agreement, unless it can also execute the principal one. [J^gn^'"'-*' "''''''"'' Scottish N. E. E. Co. v. Stewart, 3 Macq. H. L. C. 382. And where one part of an award was caiiable of specific performance and another part not, the court refused to enforce performance of the former part. Nickels v. Han- cock, 7 D., M. & G., 300; Blackett v. Bates, L. R., 1 Ch. 117. Upon this principle also the court will not enforce an agree- To make a rail ment to make a railway, for it would be unable to cany out ^''•''* the works. S. W. E. Co. v. IVythes, 5 D., M. & G. 880. But if the interest of the party contracting with the company cannot be measured by damages, and the subject-matter of the conti-act is clear and definite ; for instance, a contract by a railway company to make and keep in repair an archway under their railway to connect the different parts of the land divided by it; specific performance will be decreed. Storer V. G. W. E. Co., 2 Y. & C, C. C. 48 ; see Lane v. Neivdi- gate, 10 Ves. 192; Franklyn v. Tuton, 5 Mad. 469; T.ytton V. G. N. E. Co., 2 K. & J. 394. Equity will not, in general, enforce an agreement to build or repair a house. Paxton v. Newton, 2 Sm. & G. 437 ; To build. Brace v. Wehnert, 25 Bea. 348; Norris y. Jackson, 1 J. & H. 319; comp. Mosely v. Virgin, 3 Ves. 184; Cuhitt v. Smith, 10 Jur., N. S. 1123. But if a contract has been in part performed in specie by one party, the court will enforce performance in specie, though of an agreement to build, by the other party. Price v. Corp. of Penzance, 4 Ha. 506. And in a case where A. contracted for the erection of a house on his land and died intestate, it was held that his heir had an equity to have the house built and paid for out of A.'s personal estate. Holt v. Holt, 2 Ver. 322 ; Lechmere v. Calisle, 3 P. W. 222 ; Cooper v. Jarman, L. E., 3 Eq. 98. Also where a contract to build or repair, &c., forms part of some other contract, for instance to grant One contract a lease, of which the court ordinarily grants specific per- In'otilcr.'*"^'"* formance, it will specifically execute the latter and give damages for non-performance of the former. Middleton v. Greenwood, 2 D., J. & S. 142; see Kay v. Johnson, 2 H. & M. 118; Mayor Sf Corp. of Lon. v. Southgate, 3 W. N. 297. Comp. the cases Lewers v. E. Shaftesbury, ^c, post, p. 96, 94 Complete Specific Performance, To work mines, &c. Hiring and ser- vice. Agency. Partnership. To refer to arbi- tration. As to awards. To write a boolc. To perform at a particular place. Application to parliament. in whicli there was no contract of which equity could decree specific performance. Contracts to work mines {Pollard v. Clayton, 1 K. & J. 462) or quarries {Booth v. Pollard, 4 Y. & C, Ex. 61) will not be specifically executed. And, as a general rule, equity will not decree the specific performance of contracts the pro- visions of which cannot be enforced at once, but the perform- ance of which would extend over a number of years {Blackett V. Bates, L. E., 1 Ch. 117); nor will equity decree specific performance of contracts for hiring and service {Stoker v. Brocklebank, 3 Mac. & G. 250; Johnson y. Shrewsbury R. Co., 3 D., M. & G. 914; Brett v. East India, fyc. Co., 2 H. & M. 404; Mair v. Himalaya Tea Co., L. R., 1 Eq. 411; see an earher case contra, Ball v. Coggs, 1 B. P. C. 140); nor agency contracts {Chinnock v. Sainshury, 30 L. J., Ch. 409; Ogden v. Fossick, 9 Jur., N. S. 288) — it makes no dif- ference in such oases that the agreement has for some time been acted upon {ib.); nor contracts for a partnership (see that tit., post); nor agreements to refer to arbitration. Wilks V. Davis, 3 Mer. 507; Street v. Rigby, 6 Ves. 818. But in equity an award is considered as an agreement, and will be enforced in those cases in which, if the terms of it were embodied in the form of an agreement, it would be enforced. Wood V. Griffith, 1 Sw. 43; Blackett y. BateSjli.'R., 1 Ch. 117. An award to convey an estate, or the like, will there- fore be enforced {Norton v. Mascall, 2 Ver. 24) ; but not, it would seem, an award to pay money {Hall v. Hardy, 3 P. W. 189, n.); nor an award that a lease shall be granted by A. to B., and that B. shall perform certain duties during the continuance of the lease, as the court cannot enforce per- formance of the latter part. Blackett v. Bates, sup. A contract to write a book cannot be specifically executed {Clarke v. Price, 2 'W ils. Ch. 157); but a contract not to write except for a particular person is good and will be euforced in equity. Morris v. Coleman, 18 Ves. 347. A contract to perform at a particular theatre, though it cannot be specifically executed, will be negatively enforced by an injunction restraining performance elsewhere whether there is {Lumley v. Wagner, 1 D., M. & G. 604) or is not(TFeS- ster V. Dillon, 3 Jur., N. S. 432) the further agreement not to perform elsewhere. Overruling Kemble v. Kean, 6 Sim. 333. The court will restrain persons from applying to Par- liament, in breach of their agreement, for an act where the matter relates to private interests only, but not where the application, if successful, would be so upon public grounds. Lancaster, Sfc. R. Co. v. N. W. R. Co., 2 K. & J. 293 ; see Complete Specific Performance. 95 Ware v. Gr. June. Co., 2 E. & My. 470; Sfeele»v. N. Met. R.Co., L. R., 2 Ch. 237. A contract solely for the sale of the goodwill of a busi- Goodwin of busi- ness will not be enforced, by reason of the uncertainty of the subject-matter of the contract. Baxter v. Connolly, 1 J. & W. 580. But otherwise where it is for the sale of premises and goodwill attached to the premises. Darby v. Whittaker, 4 Dr. 134; see Cruttwell v. Lye, 17 Ves. p. 346 ; Cliissum V. Dewes, 5 Euss. 29; Allison v. Monkwearmouth, 4 E. & B. 13. The coui-t will also decree specific performance Business of ' / \iiii attorney. of a contract between attornies (partners), that one should have and carry on the business on certain terms, the other retiring from it. Aubin v. Holt, 2 K. & J. 66; see JVhittaker V. Howe, 3 Bea. 383; Candler v. Candler, Jac. 225, 231; Thornbury y. Bevill, 1 Y. & C, C. C. 554. Where the contract is of a negative character, for instance, not to carry on a particular business {Chesman v. Nainby, 1 B. P. C. 234; Barret v. Blagrave, 5 Ves. 555; Williams V. Williams, 2 Sw. 253; Whittaker v. Howe, 3 Bea. 383; Clarkson v. Edge, 12 W. E. 518; Clements v. Welles, L. E., 1 Eq. 200), not to build {Rankin v. Huskisson, 4 Sim. 13), or the like, the remedy is by injunction restraining the party from doing the act which he has contracted not to do. See Lumley v. Wagner, 1 D., M. & G. 616. As a general rule Laches, delay in seeking the assistance of the court is a bar to relief; Acquiescence. for a bill for specific performance of an agreement is an application to the extraordinary jurisdiction of the court, which cannot be exercised in favour of persons who have slept on their rights or acquiesced for a long time in a title and possession adverse to their claim. Moore v. Blake, I Ba. & Be. 69. What lapse of time is sufiScient to bar the right to relief must depend upon the circumstances of each particular case. See Heapy v. Hill, 2 S. & S. 29 ; Jen- nings V. Broughton, 5 D., M. & Gr. 126; Alloway v. Braine, 26 Bea. 575; Clegg v. Edmonson, 8 D., M. & G. 787: Colby V. Gadsden, 34 Bea. 416; Maythorne y. Palmer, 11 Jur., N. S. 230 ; Lehmann v. M' Arthur, L. E., 3 Ch. 496. But there is no laches so long as a correspondence is going on between the parties with reference to the subject-matter of the contract. Southcomb v. Bp. of Exeter, 6 Ha. 213; M'Murray v. Spicer, L. E., 5 Eq. 527. In cases seeking a specific performance, laches is equally as strong against a plaintiff in not proceeding in, as in not commencing, a !., J. & S. 533); but not under a mere agreement that, if land be taken, the price shall be a fixed sum per acre, and not be referred to a jury to assess. Re Walker, 1 Drew. 508. When property is taken under the compulsory powers of Money paia into an act of parliament and the money is paid into court, it ""'"''■ continues real estate until taken by some person having a right to elect (see Election, p. 106 ; Re Stewart, 1 Sm. 102 Land agreed or directed to be sold. order of court. Mortgage. Infants. & G. 32, 39; Re Bagot, 31 L. J., Ch. 772; Dixie v. Wright, 32 Bea. 662), and will not pass under a bequest of personal estate. Re Skeggs, 2 D., J. & S. 533. But the accumulations of such a fund will be personal estate. Dixie V. Wright, sup. Money paid into court under the 69th sec- tion of the Lands Clauses Consolidation Act (8 Vict. c. 18) is realty, but if paid in under the 76th section it is personalty. Surplus on sale by Re Harrop, 3 Drew. 726. If property be sold by order of the court, and there is a surplus after satisfying the purpose for which the sale is directed, it will be considered as realty. Cooke V. Dealey, 22 Bea. 196. As to conversion under a power of sale in a mortgage, see tit. " Moetgage." In the case of infants the court would not in general direct a conversion of one kind of property into another, particu- larly personal into real estate ; as, prior to the 1 Vict. c. 2Q, a female infant could, after the age of twelve, a male after fourteen (2 Blac. Com. 497), dispose of personal estate, but neither could dispose of real estate before the age of twenty- one years. See Re Phillips, 19 Ves. 122. It was, therefore, more beneficial for the infant that it should continue per- sonal estate. Since the act however this reason has ceased Proceeds of sale of to have any weight. The proceeds of the sale of timber cut timber. T^j order of the court on the estate of an infant tenant in fee, with an executory devise over on his dying under the age of twenty-one, is personal estate {Dyer v. Dyer, 34 Bea. 540); though if cut in the lifetime of the tenant for life, and the proceeds invested, such proceeds are, as between the heir and executor of the person ultimately entitled, real estate. Field V. Brow7i, 27 Bea. 90. When timber is cut by order of the court on the estate of a lunatic, the proceeds are per- sonal estate. Oxenden v. Ld. Compton, 2 Ves. jun. 72. But the court will not, without a sufficient cause, change the nature of property belonging to a lunatic. lb. See Re Bad- cock, 4 M. & Cr. 440. And if a sale of a lunatic's lands be ordered by the court, the proceeds, after satisfying the pur- pose for which the sale was directed, will be considered as lan(^. 16 & 17 Vict. c. 70, s. 119. Se? Re Wharton, 5 D. M. & G-. 33, decided on the corresponding provision of a prior act, the 9 Geo. 4, c. 78, s. 2. So the purchase-money of the land of a lunatic taken by a railway company. Re Sloper, 22 Bea. 198, cited. Where a bankrupt's estate is sold, or contracted to be sold, before his death, a conversion is effected; aliter it s,o\di after his death, except to the extent necessary to satisfy his creditors. Banks v. Scott, 5 Madd. 493; see Bromley v. Goodere, 1 Atk. 75. And this rule does not depend upon any special provision of any of the bankruptcy acts. Effect of lunacy. Effect of bank' ruptcy. Contract of Sale. 103 With respect to aliens, thougli an alien could not foi-merly Aliens. hold land, he was entitled to take the proceeds of land agreed or directed to be sold. De Jlourmelin v. Sheldon, 1 Bea. 79 ; 4 M. & C. 525. Now, by the 33 & 34 Vict. c. 14, an 33&84Vict.c.u. important alteration has been made in the law affecting aliens. The first section is that which relates to property, and is as follows : — " Real and personal property of every description may be taken, acquired, held and disposed of by an alien in tlie same manner in all respects as by a natural born British subject, and a title to real and personal property of every description may be derived through, from or in succession to an alien, in the same manner in all respects as through, from or in succession to a natural born British subject : Provided — " (1) That this section shall not confer any right on an alien to hold real property situate out of the United Kingdom, and shall not qualify an alien for any office or for any municipal, parliamentary or other franchise ; " (2) That this section shall not entitle any alien to any right or privilege as a British subject, except such rights and privileges in respect of property as are hereby expressly given to him ; " (3) That this section shall not affect any estate or inte- rest in real and personal property to which any person has or may become entitled, either mediately or immediately, in possession or expectancy, in pur- suance of any disposition made before the passing of this act, or in pursuance of any devolution by law on the death of any person dying before the passing of this act" (s. 1). The question whether there is an equitable conversion has cases under sometimes arisen under the 55 Geo. 4, c. 184, Sch. part 3, by Legacy Duty Act. which legacy duty is payable on money arising from the sale, mortgage or other disposition of realty directed by will to be sold, mortgaged or otherwise disposed of. Under this act it No duty where has been held that where trustees have an option and do not o^fontosST. sell, legacy duty does not attach (Att.-Gen. v. Mangles, 5 M. & W. 120 ; see Matson v. Swift, 8 Bea. 368) ; but of course succession duty would be payable. See also Re De Lancet/, L. B., 5 Ex. 102. Legacy duty is payable only imperative trust when the sale is under some imperative trust or direction. *"'"*''''=• Adv.-Gen. v. Smith, 1 Macq. H. L. C. 760; Att.-Oen. v. Simcox, 1 Ex. 749. Under a sale by the court, legacy duty is not payable. Hobson v. Neale, 17 Bea. 178. A direc- tion that realty is to be considered as personalty will not make it liable to legacy duty. Att.-Gen. v. Mangles, sup. 104 Contract of Sale. Duty attaches under absolute trust for sale. Power of sale. Conversion from implication — Direction to divide. When a conversion out and out (see Grieveson v. Kirsopp, 2 Ke. 653) is directed, legacy duty attaches though the property be not sold, the parties entitled electing to take it as realty {Att.-Oen. v. Holford, 1 Pri. 426 ; Williamson V. Adv.-6en., 10 CI. & F. 1 ; see Att.-Gen. v. Brunning, 8 H. L. C. 243 ; lie De Lancey, sup.); but otherwise where there is a trust for sale (which is effected) and for re-invest- ment (which is not carried out), and the parties entitled elect to take the money. Mules v. Jennings, 8 Ex. 830 ; see Rich Y. Whitfield, L. E., 2 Eq. 583. Although there may be a mere pow&r of sale, if the inten- tion of the testator will be best effectuated by a conversion, it will in general be directed by the court accordingly. Greenway v. Greenway, I Giff. 131. And it is an im- portant circumstance to be considered in such cases, that a conversion will facilitate a division of the property where many persons are interested. See Mower v. Orr, 7 Ha. 473 4 Burrell v. BaskervUle, 11 Bea. 525. But the court will not interfere where there is a discretionary power or mere authority on the part of trustees, which they do not exercise {Shipperdson v. Tower, 1 Y. C. C. 441 ; Lucas v. Urandreth, 28 Bea. 273), or only partially exercise. Walter V. Maunde, 19 Ves. 424. See also Yates v. Yates, 28 Bea. 637; Re Beaumont's Trusts, 32 Bea. 191. Money passes as land. Exceptions. Money directed or agreed to be laid out in Land.'\ Money agreed or directed to be laid out in the purchase of land will in equity pass under a general devise of lands or descend to ihe heir, but cannot be bequeathed as money {BiddulpJi V. Biddulph, 12 Ves. 161 ; Green v. Stephens, 17 Ves. 64, 77); and if the heir die intestate before the purchase has been made, the fund will descend to his heir. Scuda- more v. Scudamore, Pr. Ch. 543; see Edwards v. Css. of Warwick, 2 P. W. 171 ; Lechmere v. E. of Carlisle, 3 P. W. 222; Gillies v. Longlands, 4 De G. & Sm. 372. And money will be considered as converted notwithstanding a direction for investment until a purchase can be found {Edwards v. Css. of Warwick, 2 P. W. 171), and would have been bound by a judgment to the same extent that the land if purchased would have been. Frederick v. Ayns- combe, 1 Atk. 392. Consider now the various judgment acts, tit. " Judgments." As an exception, and one of the very few exceptions, to this general rule, it may be observed that although the heir takes the income of realty, undei- an executory devise to a. person not in esse, until such person comes into existence {Hopkins V. Hopkins, Ca. t. Tal. 44), yet the heir is uot Option, Sfc. of Third Persons. 105 entitled to the income of money directed to be laid out in land which is to be settled in the same way as the devised realty. E. of Bective v. Hodgson, 10 H. L. C. 656. See the case in the court below (1 H. & M. 376), and minutes of decree. As another exception to the rule, money directed to be laid out in real estate or leaseholds will not escheat to the crown as land; and this would seem to be the case, although there may be no option as to the kind of property to be purchased, but the direction is to lay out the money in land. Walker v. Denne, 2 Ves. jun. 170, 185. Option, Consent or Request of Third Persons.] Where option to convert, there is a mei'e power of sale or discretionary power vested °'*™' in trustees to convert or not, there will, as a general rule, be no conversion unless the power be exercised (see Bourne v. Bourne, 2 Ha. 35); nor, where it is exercised, will there be a constructive conversion, until there is a sale or conversion under it. Re Ibbitson's Estate, L. R., 7 Eq. 226. But a power of sale coupled with a direction that the donee of it "shall and may divide" the proceeds, makes the power imperative, and there will be a conversion. Grieveson v. Kersopp, 2 Ke. 653. For the direction to convert must be Direction to con- absolute and unconditional, and not in the nature of a mere IS iX!'^ '"^ authority, and there must be no option to invest either in land or other securities; otherwise a constructive conversion of personal into real estate will not be effected. Amler v. Amler, 3 Ves. 583; see Van v. Barnett, 19 Ves. 102; Smith- wick V. Smithwick, 12 Ir. Ch. R. 181; Lucas v. Brandreth, 28 Bea. 273. If there be in terms an option to lay out money implication from in land, but the limitations expressed are applicable only to {^'Sj'to'iand" land, this will show an intention that the money should be so laid out. See Johnson v. Arnold, 1 Ves. sen. 167 ; Cowley v. Harstonge, 1 Dow. 361 ; Hereford v. Ravenhill, 5 Bea. 51 ; Simpson Y.Ashworth,6 Bea. 412 ; consider Cookson v. Cook- son, 12 CI. &F. 120, in which the judgment of Lord Campbell on this point seems to be opposed to or scarcely consistent with the judgments of Lords Brougham and Cottenham; see Davies v. Goodhew, 6 Sim. 585 ; De Beauvoir v. De Beauvoir, 3 H. L. C. 524, and Re De Lancey, L. R., 5 Ex. 102, where the point arose on the question whether legacy or succession duty was payable. If trustees have and exer- Discretion of cise their discretionary power as to the investment, the *'''^'°'^- property will in general pass according to the conversion they have effected. In Rich v. Whitfield, L. R., 2 Eq. 583, the trustees were directed to invest in land or govern- ment securities. They invested in the latter, and an infiint became absolutely entitled, who afterwards died while still 106 Property at Home — Election. an infant. It was held that the property passed as personal estate, and Lord Romilly, M. R., expressed a douht whether, after the infant's death, the trustees could change the security and invest in land. As a general rule, mere trustees have no option or right of determining the nature of the trust fund or property {Earlom v. Saunders, Amb. 241), though they may have a discretion as to the time of conversion. Doughty V. Bull, 2 P. W. 320; Yates v. Yates, 28 Bea. 637. Consent— Request. Money directed to be invested in land with consent, and not without, is not converted until consent be given. Davies V. Goodhew, 6 Sim. 585; Sykes v. Sheard, 33 Bea. 114. But consent must not be withheld from improper or in- terested motives. Lord v. Wightwick, 4 D., M. & G. 803. And an ordinary direction to convert into real estate on request appears to justify a conversion without any express request where all the limitations are applicable to real estate. Thornton v. Hawley, 10 Ves. 129. But not in those cases in which a contrary intention may be inferred, as if there be a trust for sale of realty, upon request, with a proviso that, until sale, it is to be realty. Re Taylor's Settle- ment, 9 Ha. 596. Person absolutely Property at Home — Election.] Where property, subject entitled may elect. ^^ ^ direction to convert, comes unconverted to the posses- sion of the person absolutely entitled to it, and he continues to deal with it in its unconverted form, a presumption arises in the absence of evidence to the contrary, that he has elected to take it in the shape in which it has come to him. Thus, if money directed or agreed to be laid out in land, comes to the hands of the person who would be absolutely entitled to the land if purchased, it will thenceforth be con- sidered as money in the absence of evidence of an intention to the contrary. Pulteney v. Ld. Darlington, 1 B. C. C. 223. But if the money be in the hands of some third per- son, the absolute owner must do some act showing an elec- tion to take it as money. TVheldale v. Partridge, 8 Ves. Tenant in tau. 235; see Re Redder, 5 D., M. & G. 890. The person also who would, if the lands were purchased, be tenant in tail, may elect, and by a disentailing deed entitle himself to the receipt of the money (3 & 4 Will. 4, c. 74, ss. 70, 71); and where the fund is in court, for instance, when paid by rail- way companies for the purchase of entailed lauds, the court will, as a rule, order it to be paid to the tenant in tail with- out a disentailing deed. Re Holden, 1 H. & M. 445 ; Re Watson, 10 Jur., N. S. 1011 ; Notley v. Palmer, L. E.. 1 Eq. 241. Prior to the act of Will. 4 {sup.), the court had power under the 39 & 40 Geo. 3, c. 56, and 7 Geo. 4, c. 45 Property at Home — Election. 107 (both now repealed), to order payment of money subject to be invested in the purchase of an estate to be entailed, to the tenant in tail or as the court should appoint. A person entitled in remainder may, it would seem, elect Ecmaindemmn. subject and without prejudice to prior interests, and he may dispose of his interest as he has elected to take it. Stead v. Newdigate, 2 Mer. 521, 531. So where no conversion is required by the tenant for life, and the remainderman dies intestate, or does not by his will show a clear intention to elect ; then, as between his real and personal representatives, the property vrill devolve according as it is real or personal in its unconverted state. See Se Stewart, 1 Sm. & G. 32 ; Re Skeggs, 2 D., J. & S. 533. But how far, in such a case, his mere election, if he make one, to take the property in a particular state, e.g. as money, is sufficient to bind his real and personal representatives when the tenant for life has required a conversion of the money into land, is doubtful. See Holloway v. Radcliffe, 23 Bea. 163; Lewin on Trusts, 691. Infants {Van v. Barnett, 19 Ves. 102), except under the infants, direction of the court {Robinson v. Robinson, 19 Beav. 494; Re Harrop, 3 Drew. 734), and of course lunatics {Ashby v. Lunatics. Palmer, 1 Mer. 296 ; Re Wharton, 5 D., M. & G. 33), are incapable of electing. Under the 3 & 4 Will. 4, c. 74, a mar- Married women. ried woman may, by an acknowledged deed, convey her in- terests in real estate or money directed to be invested in land (s. 77), or the proceeds of the sale of lands {Tuer v. Turner, 20 Beav. 560), and in this way may make an elec- tion. So where she has an absolute power to appoint by deed or will the rents of property conveyed in trust for sale, she may by will elect. Sharp v. De St. Sauveur, 4 W. N. 175. And with respect to money subject to be converted into land, a married woman may also elect, on being examined in court, to take it as money (where it is not settled), and an acknowledged deed is unnecessary. See Oldham v. Hughes, 2 Atk. 452; Re Hayes, 9 W. E. 769. Where several are wiiere several absolutely and indefeasibly entitled they may elect to take ™"'''=''- the property in its unconverted state. Sisson v. Giles, 9 Jur., N. S. 951. And when the trust is for the investment of money, one of several may elect to take his share in money, which will not prevent the investment of the residue. Seeley v. Jago, 1 P. W. 389; see Elliott v. Fisher, 12 Sim. 505. But he cannot so elect, in the converse case, when the trust is for the sale of realty, as otherwise this might prevent the sale altogether. Fletcher v. Ashburner, 1 B. C. C. 497, 500; Deeth v. Hale, 2 Moll. 317; Hol- loivay V. Radcliffe, 23 Bea. 163. 108 Property at Home — Election. Acts of election. Treating as money in accounts. Taking principal, not interest. Letting land. Taking deeds. Continning in possession for a long time. Election as to property in remainder. Any act will amount to an election, if an intention to elect can be inferred from it {Bradish v. Gee, Amb. 229), and a parol direction or declaration will be sufficient. Pulteney v. Ld. Darlington, 1 B. C. C. 236, 237 ; Van v. Barnett, 19 Ves. 109 ; see however Bradish v. Gee, sup. An election may appear by will. Biddulph v. Biddulph, 12 Ves. 161 ; see Har court v. Seymour, 2 Sim., N. S. 12. Putting out money on security and treating it as money in private accounts, amounts to an election to take the pro- perty as money. lb.; Lingen v. Sowray, 1 P. W. 172, 176; see Cookson v. Cookson, 12 CI. & Fin. 125. So taking money from trustees (^Pulteney v. Ld. Darlington, 1 B. C. C. 238), but not merely taking the interest of money, though for a long time. See Gillies v. Longlands, 4 De G-. & Sm. 372 ; Re Pedder, 5 D., M. & G-. 890. When a person entitled to elect lets land reserving rent to himself, his heirs and assigns ( Crabtree v. Bramble, 3 Atk. 680 ; see Griesbach v. Free- mantle, 17 Bea. 314), or takes title deeds into his own pos- session, and continues in possession of the estates until his death, this will amount to an election to take the property as land. Davies v. Ashford, 1 5 Sim. 42 ; see Inwood v. Twyne, 2 Ed. 148. But not if he merely enter into and continue in possession for a short time, for instance, two years. Kirkman v. Miles, 13 Ves. 337 ; see Griesbach v. Freemantle, sup., where the period of continuing in posses- sion was sixteen years. Where three persons were entitled to the proceeds of land directed to be sold, and one was in possession until he died (a period of upwards of three years), accounting for rents to the other two, it was held that there was no election by them to take the property as land. Brown V. Brown, 33 Bea. 399. An act which will amount to an election in respect of property in possession is not, however, necessarily an elec- tion in respect of property in remainder. Meredith v. Vick, 23 Bea. 559. Devise of Land to be converted. 109 CHAPTER II. CONVERSION BECOMING UNNECESSAKT, OR DIRECTED FOB OBJECT CONTEAET TO LAW. Devise of Land to be con- vei'tedf — No residuary Bequest 109 In general mTiat fails or lapses results as Land 109 Gift in Mortmain .. 110 Proceeds of Realty and Personalty Mended . . 110 Conversion to all Intents 110 Conversion for Purposes of Will only .. ..110 Devise of Land to T>e con- verted — Residuary Be- quest .. .. .. 110 Proceeds of Real and Devise of Land, ^'c. — contd. Personal Estate Mended .. . . 110 Failure of Residuary Gift Ill General and particular Residue .. .. Ill Effect of Proceeds resulting 111 Where mliolly or par- tially Result , . .. Ill Conversion under Deed 112 Money directed to he cori/- verted .. .. .. 112 Devise of Land to be converted — Where no residuary BequestJ] It not unfrequently happens that when a tes- tator has directed a conversion of real estate into money, cir- cumstances render such a conversion unnecessary. This may arise from various causes which will presently he referred to, the result heing that the land, or if actually sold the pro- ceeds of it, will remain unaffected by and not subject to the trusts declared by the will. The question then arises, who is entitled to the property directed to be converted, the ex- pressed trusts having failed. To a certain extent, this question depends upon another, whether, namely, there is or is not a residuary bequest in the will. It will be more con- venient to consider the cases, first, where there is no resi- duary bequest ; secondly, where there is such a bequest. Where there is no residuary bequest the general rule may be stated to be, that if a testator directs real estate to be sold, and a sale becomes unnecessary ( Chitty v. Parker, 2 Ves. jun. 271), or the proceeds are only partially given, or the gift cannot take effect by reason of its being void, or faihng by lapse or otherwise (see Edwards v. Tuck, 23 Bea. 268), the proceeds to the extent that they are undisposed of, or in general what the gift of them is inoperative, result as land. Thus, if 'aiis or lajMes the interest of such proceeds only be given, the capital results {Wilson v. Major, 11 Ves. 205), not to the next of kin of the testator, but to the person entitled as his heir-at- law under wills subject to the old law, and (as it would seem) to the residuary devisee under wills subject to the 1 Vict. c. 26 (see s. 25). This must be borne in mind in considering cases which were decided prior to this act ; for 110 Devise of Land to be converted. Gift In mortmain. Declaration as to personalty. Proceeiis of realty and personalty blended. Conversion to all intents. For purposes of will only. the effect of this section is to place the residuary devisee on the same footing, with regard to realty, as the residuary legatee stands with regard to personalty. See Cogswell v. Armstrong, 2 K. & J, 227; Carter v. Haswell, 3 Jur,, N. S. 788. So if only part of the proceeds be given, the rest re- sults. Collins V. Wakeman, 2 Ves. jun. 683; Watson v. Hayes, 5 M, & C, 125, So where there is a lapse {Ackroyd V. Smithson, 1 B. C. C. 503), or the gift is in mortmain {Jones V. Mitchell, 1 S. & S. 294), or infringes the rule against perpetuities {Buchanan v. Harrisoii, 1 J. & H. 662; see Burley v. Evelyn, 16 Sim. 290); — in such cases that which is so undisposed of, fails, or lapses, results as land, not- withstanding there is a declaration that nothing shall result, and that the heir-at-law shall not take {Fitch v. Weber, 6 Ha. 145), or that such proceeds shall be considered as per- sonal estate. Taylor v. Taylor, 3 D., M. & G. 190, over- ruling Phillips V. Phillips, 1 M. & K. 649; see Collins V. Waheman, sup.; Robinson v. Lon. Hospital, 10 Ha. 19. And if the proceeds of realty are blended with personal estate in a common fund, this rule will apply to the proceeds of the realty. Ackroyd v. Smithson, sup. ; Eyre v. Mars- den, 2 Ke. 574; Jessopp v. Watson, 1 M. & K. 665; Taylor V. Taylor, sup. For in order to prevent the application of the rule, it must appear that the testator's intention was that the real estate should be personal to all intents, and not only for the purposes of the will ; and it will be presumed that the conversion was for the purposes of the will only, unless it can be collected that on failure of those purposes con- version was nevertheless intended as between the heir and next of kin. See Cruse v. Barley, 3 P. W. 20, 22, n. by Cox; 1 Jarm. on Wills, 590 ; Edwards v. Tuck, 23 Bea. 263; Wall V. Colshed, 2 D. & J. 683 ; E. Bective v. Hodgson, 10 H. L. C. 656. It may be observed, that if a person is entitled to the sur- plus proceeds of a sale of land after providing for certain purposes, he may himself so provide and take the laud. Pearson v. Lane, 17 Ves. 101. Proceeds of real and personal estate blended. Devise of Land to be converted — Where residuary Be- quest.^ The effect of a residuary bequest where there is a direction to convert is material. There are cases in which the proceeds of the sale of real estate directed to be sold have been held to be personal estate where there is a direc- tion that out of them and the personal estate debts and legacies shall be paid, the whole of the surplus or residue formed of the mixed proceeds of the real and personal estate being included in a residuary bequest of personalty. See Effect of Proceeds resulting. Ill Mallahar v. Mallabar, Ca. t. Tal. 78; Hutcheson v. Ham- mond, 3 B. C. C. 128, 148; Durour v. Motteux, 1 Ves. sen. 321; 3 P. W. 22 (1); Kennell v. Abbott, 4 Ves. 802; Bt/am V. Munton, 1 E. & My. 503; Green v. Jackson, 2 R'. & My. 238 ; IVildes v. Davies, 1 Sm. & G.482; also Salt v. Chattaway, 3 Bea. 576, and tbe observations of Lord Langdale in that case. In these cases it was considered that the pro- ceeds of the real and personal estate being blended, the in- tention sufficiently appeared to include in the residuary be- quest everything that could not take effect under the gift of legacies. But where the residuary gift itself or any part Failure of rcsiau- of it fails by lapse, then to the extent that it represents the '"■ys"'- proceeds of land, it results as land. Taylor v. Taylor, 3 D., M. & G. 190; see also Digby v. Legard, 3 P. W. 22. It has been held, indeed, under a direction to convert, the proceeds to be taken as personal estate, out of which legacies were given and the residue over, that a failure by the death of one of the legatees enured for the benefit of the heir. Amphlett v. Parke, 2 R. & My. 221, in which case Lord Brougham reversed the decision of Sir J. Leach, 4 Russ. 75; and see Cruse v. Barley, 3 P. W. 20; Gibbs v. Rumsey, 2 V. & B. 294. But this would seem to be by no means so clear a case as when a gift of part of the residue itself fails, as in Taylor v. Taylor, sup.; for then the contest is in effect between the heir and next of kin, and is governed by the principles established in such cases. The observations on the preceding cases in 1 Jarm. Wills, 597 — 609 will be found very instructive; and it must be observed that Mr. Jarman appears to approve (p. 601) of Lord Brougham's decision in Amphlett v. Parke. If the proceeds of the sale of realty are given, in part to General and A. and the residue to B., and there is a general residuary parti':°i« «aidae. bequest, if the part given to A. lapses, it does so for the benefit of the testator's real representatives, neither falling into the particular residue given to A. nor the general residue. Hutcheson v. Hammond, 3 B. C. C. 128 ; consider the observations of the M. E. in Kennell v. Abbott, 4 Ves. 802, as to a particular and a general residue. Effect of Proceeds resulting.] In those cases in which where proceeds the proceeds of realty result as land, they will in general w^'oiiy or partially devolve on the heir or residuary devisee, as the case may be (see ante, p. 109), as converted, and as so converted will go to his personal representatives. Wright v. Wright, 16 Ves. 188; Jessopp V. Watson, 1 M. & K. 665; Hatfield v. Pryme, 2 Coll. 204. In case, however, the devise wholly fails, and no conversion or dealing with it is required for the benefit of any person, as where all the legatees whose legacies are 112 Money directed to he converted. Parpoae wholly or partially unneces- sary. Result for benefit of testator's per- sonal representa- tives. payable out of the proceeds of the estate die in the testator's lifetime ( Smith v. Claxton, 4 Madd. 484), the whole property will then result, as land, to the testator's heir or residuary de- visee, and will descend as such to his real, not personal, repre- sentatives {Davenport y.Coltman, 12 Sim. 610; see Bagster V. Fackerell, 26 Bea. 469; Wilson v. Coles, 28 Bea. 215); and if sold the proceeds in such case will nevertheless devolve as land. lb.; see Bective v. Hodgson, 10 H. L. C. 656. Conversion of Realty under a Deed."] Where a conversion of land into money is directed by deed, and the purposes for which a conversion was directed wholly fail, the property results to the settlor in the character of real estate {Ripley V. Waterworth, 7 Ves. 435; Clarke v. Franklin, 4 K. & J. 257); but as personal estate where they only partially fail, and to the extent of such failure {Hewitt v. Wright, 1 B. C. C. 86 ; see Van v. Barnett, 19 Ves. 102) and from the time of the delivery of the deed. Clarke v. Franklin, sup. Money directed by Will to be converted.'] By analogy to the rule that the undisposed of proceeds of the sale of real estate result as land, the undisposed of interests in money directed by will to be invested in land will result for the benefit of the testator's personal representatives ( Cogan v. Stevens, 1 Bea. 481, n.; Hereford v. Ravenhill, ib.\ or resi- duary legatee, if there be one {Hereford v. Ravenhill, ib., 5 Bea. 51 ), and as personal estate. Head v. Godlee, Reynolds V. Godlee, 1 John. 536. CHAPTER III. CONVEKSION AS BETWEEN TENANT FOE LIFE AND REMAINDERMAN. W7iere Testator directs Con- version Conversion niMch can- not he effected, Rights of Tenant for lAfe as to Income . . Conversion in Equity at End of the Tear Conversion at a Loss . . 112 113 113 113 114 Wliere Testator does not direct Conversion .. 114 Conversion in Equity . . 114 Where Testator does not direct Conversion — contd. Enjoyment of Property in Specie Tndications of Testa- tor's Intentions Specific Legacies given for Life, then over . Property tahen Tty Rail- way Company Where Testator directs a partial Conversion 114 115 11.-5 IIG 116 Where testator Where Testator directs Conversion.] Where property, pro- airects conversion. ^l^lciIlg income, is directed to be converted, the income, until Where Testator directs Conversion. 113 conversion, will go according to the directions (if any) of the will. Sparling v. Parker, 9 Bea. 524. If the testator direct his residuary estate to he converted, Conversion which and that, in the meantime, the interest shall accumulate for ""i""' be effected. the purposes of investment; if the investment cannot be made in a year after the testator's death, the tenant for life will, as from that time, be entitled to the income of the residue. Sitwell V. Bernard, 6 Ves. 520; Kilvington v. Gray, 2 S. & S. 396. So where there are no directions as to the appli- cation of the income until conversion, but the testator has directed his residuary estate to be invested, from time to time and at convenient opportunities, in realty, the income to go as the income of his other real estates. Tucker v. Boswell, 5 Bea. 607. Under a direction that the proceeds of the when tenant for conversion shall be laid out in certain securities, the income l"*^ entitled to 1 . . . o T o ^ -It 1 Income from tJience arising to be given to a tenant lor life, he will be testator's death, entitled, as from the testator's death, to the income of in- vestments (if any) in securities of the same description made by the testator in his lifetime {Angerstein v. Martin, T. & R. 232; Hewitt v. Morris, ib. 241 ; Caldecott v. Caldecott, 1 Y. 6 C, C. C. 312; Allhusen v. Whittell, L. R., 4 Eq. 295; Brown V. Gellatly, L. R., 2 Gh. 751), and to the income of similar investments made, within the year, by the executors from the time of their being made ; the income arising before such investment being capital. La Terriere v. Bulmer, 2 Sim. 18. A testator, who was possessed of long annuities at the time of his death, directed a conversion of such parts of his estate as should not consist of money, " or investments in any of the public funds or government secu- rities:" it was held that the directioji did not apply to the long annuities. Wilday v. Sandys, L. R., 7 Eq. 455. In conversion in case there are no investments of the kind authorized by the ^""^ "* "" ™'* ,..,. ,. -77 °^^ year, testator existing at his death, the property is considered as converted at the end of the year after his death; and the tenant for life will be entitled, as from the death, not to the actual income of the property (as held in Douglas v. Con- greve, 1 Ke. 410), but to dividends on so much £3 per cent, stock as the proceeds, if a conversion had taken place, would have purchased at the end of the year, the surplus forming part of the corpus of the residue. Dimes v. Scott, 4 Russ. 195; Morgan v. Morgan, 14 Bea. 77; Macpherson Y.Mac- pherson, 1 Macq. H. L. C. 243; Taylor v. Clarke, 1 Ha. 161 ; Brown V. Gellatly, L. E., sup. In Robinson v. Robinson, 1 D., M. & G-. 247, interest at £4 per cent, (but not exceed- ing the actual income) was given. In applying the preceding rules, it must be borne in mind investments by, w. I 114 Where Testator does not direct Conversion. and aothorizedby that investments made by the testator himself are not neces- testator. sarlly the same as investments authorized by his will, and, if not so authorized, must be considered, for the purposes of the ■will, simply as unauthorized. L. R., 2 Ch. 759. If the tes- tator direct that trustees shall use great caution in realizing his estate, the tenant for life will be entitled to the income of the property in specie imtil conversion. Scholefield v. Redfern, 2 Dr. & Sm. 173; and see Mackie v. Mackie, 5 Ha. 70. But in Brown v. Gellatly, sup., where the direc- tion was in effect to convert cautiously (see h. R., 2 Ch. 758), it was held that the tenant for life was only entitled, from the death, to four per cent, on the amount of the value of the property, estimated at the death, {lb., minutes of decree, No. 1.) Conversion at a If the property cannot be converted without loss and '"''■ damage to the estate, it will not be converted, but a value set upon it, the tenant for life receiving interest on such value at 4Z. per cent, from the testator's death. Gibson v. Bott, 7 Ves. 89; Meyer v. Simonsen, 5 De G-. & Sm. 723 ; see Brown v. Gellatly, L. R., 2 Ch. 751. Conv^ion in equity. Enjoyment of property in specie. Where Testator does not direct Conversion.] Where there is no direction to convert, and the residuary personalty is given to different persons in succession, whatever is of a wasting or reversionary nature, as leaseholds or the like, and does not consist of securities authorized as investments by the court (see General Orders, 1 February, 1861, tit. " Trusts,") is to be converted into money and the proceeds invested in securities so authorized, the income being pay- able to the tenant or tenants for life. Howe v. Ld. Dart- mouth, 7 Ves. 137; Thornton v. Ellis, 15 Bea. 193; see Mills V. Mills, 7 Sim. 501; Sutherland v. Cooke, 1 Coll. 498; Johnson v. Johnson, 2 Coll. 441; Blann v. Bell, 2 D., M. & G-. 775. If property ought to have been, but has not been, converted, and the tenant for life has been allowed to receive the income of it, he must refund the overplus beyond what he was en- titled to to the trustees, who are themselves liable to those entitled in remainder. Hood v. Clapham, 19 Bea. 90. In these cases there was nothing from which an intention on the part of the testator could be inferred that the tenant for life was to enjoy the property and take the income of it uncon- verted or in specie. But if such an intention can be collected effect will be given to it, as where in a bequest of leaseholds there is a direction to keep in repair or renew ( Crowe v. Crisford, 17 Bea. 507), or demise {Hind v. Selby, 22 Bea. Where Testator does not direct Conversion. 115 373); and the use of the word "rents" may in some cases indication of show that the testator intended leaseholds to he enjoyed in j^^"-'"'" '■"«■'■ specie. Cafe v. Bent, 5 Ha. 36; comp. Pickup v. Atkinson, 4 Ha. 624; Shirving v. Williams, 24 Bea. 275; Blann v. Bell, 2 D., M. & G. 775; Vachell v. Roberts, 32 Bea. 140. So if in the ulterior gift the testator has referred to the pro- perty in terms showing that he is disposing of it in its uncon- verted state or condition ( Collins v. Collins, 2 M. & K. 703 ; Pickering v. Pickering, 4 M. & C. 289), as where he dis- poses of his estate, term and interest therein, in trust for his wife for life, and after her death gives "the same and all his estate, term and interest therein " to his son. Harris v. Poyner, 1 Drew. 174 ; Hubbard v. Young, 10 Bea. 203 ; see Bethune v. Kennedy, 1 M. & C. 114; Vaughan v. Buck, 1 Ph. 75. A direction not to sell without consent (^Hinves v. Hinves, Not to seu with- 3 Ha. 609; Ellis v. Eden, 23 Bea. 543), or to divide after ■>"' <=<'"8^°'- the death of the tenant for life {Collins v. Collins, 2 M. & K. 703; Holgate v. Jennings, 24 Bea. 623; comp. Pickup V. Atkinson, 4 Ha. 630), or to sell at the discretion of the ti'ustees {Simpson v. J^ester, 4 Jur., N. S. 1269), shows that the testator intended the property to he enjoyed in specie. So it would seem where there is a discretionary Discretionary or general power to sell at such time as trustees think fit. ''°^^'' °' "''^• Burton V. Mount, 2 De G. & Sm. 383 ; see, however, Jebb V. Tugwell, 20 Bea. 84. And this rule may operate to tlie disadvantage as well as to the advantage of the tenant for life, as if the property be building ground, but not sold, the tenant for life will be merely entitled to the rent which the land, as agricultural land, produces. Yates v. Yates, 28 Bea. 637. A direction not to sell until a particular Not to seu nntii time gives the tenant for life the enjoyment of the propei'ty i»rti'="'a' t™e. in specie until that time. Alcock v. Sloper, 2 M. & K. 699; Daniel v. Warren, 2 Y. & C, C. C. 290; Skirving v. Wil- Hams, 24 Bea. 275; Rowe v. Rowe, 29 Bea. 276; Green v. Britten, 1 D., J. & S. 649; comp. Brown v. Gellatly, L. R., 2 Ch. 751. In cases of specific legacies given for life, then over, the Specific legacies tenant for life takes the income in specie, though the corpus thenovS-.^'*^' is of a wasting nature. Thus in a case where the testator, who had only terminable or long annuities, gave the divi- dends of his funded property to A. for life, with a gift over of the principal after his death, A. was held entitled to the income of the annuities unconverted. Vincent v. Newcombe, 1 You. 599. Where property, in which there are life and other interests in remainder, becomes changed, the principle i2 116 Partial Conversion directed by Testator. Adjustment of equities between tenant for life and remainderman. Property taken by railway com- pany. Eenewal of leases Impracticable. Effect of. of the court is to place all parties interested as nearly as possible in the same position with respect to the new pro- perty as they would have been in, had the original property not been converted. Thus a tenant for life, who is entitled to the enjoyment of wasting property (for instance, lease- holds) in specie, and who cons&nts to a sale and investment of proceeds, will be entitled to the capital of such invest- ments if he is living when the lease expires, for in effect in such a case he has become entitled to the entire interest. Phillips V. Sergent, 7 Ha. 33; see Re Beaufoy, 1 Sm. & G-. 20; Harvey v. Harvey, 5 Bea. 134 (case of a lease for life). And if property be taken by a railway company, and the money paid into court and invested, the tenant for life is entitled to the same benefit as if the property had not been so taken, and not merely to the dividends of the money. Jeffreys v. Conner, 28 Bea. 328 ; Re Phillips, L. E., 6 Eq. 250; Re Pfleger, ib. 426; Re Chamberlain, cited ib. 427 ; see Littlewood v. Pattison, 10 Jur., N. S. 875; 8 & 9 Vict. c. 18, s. 74. It has been held also, that money directed to be applied for the purposes of the renewal of a lease which becomes impracticable, belongs to the tenant for life, where the renewal fund has been set apart out of the income which would otherwise have gone to him. Tardiffv. Robinson, 7 Ves. 137; Morres v. Hodges, 27 Bea. 625; comp. Re Wood's Estate, L. R., 10 Eq. 572. In a case in which the tenant for life and remainderman joined in a lease at a rack-rent, and afterwards, before the expiration of the lease, the property was purchased under an act of parliament and the purchase-money invested, the tenant for life was held entitled during the remainder of the term to so much only of the income of the investments as equalled the rent, the rest of the income being accumulated. Be Mette's estate, L. R., 7 Eq. 72. Partial Conversion directed by Testator.] There are cases in which the testator directs a partial conversion only, that is, of so much of his property as shall not consist of certain specified descriptions. In such cases the property so specified will be considered as authorized by the testator to remain in its unconverted state, and will be subject to the rules upon the subject which have already been considered. In cases of this description, it does not follow that because an investment in a particular fund would not be authorized, that therefore such fund, if existing at the testator's death, must be converted, if in point of fact the terms of the wiU can be considered as authorizing the continuance of such invest- Pai-tial Conversion directed by Testator. 117 ment. Thus a direction to convert such parts of the testa- tor's property as should not be invested in the public funds or government securities does not authorize a conversion of long annuities, though an investment in them would not have been proper. Howard v. Kay, 27 L. J., Ch. 448; Wilday v. Sandys, L. R., 7 Eq. 455. ( 118 ) COPYRIGHT. Ch. 1 . — Books and Dramatic and Musical Works, p. 1 1 8. Ch. 2. — Sculptures, Paintings, Prints, Designs, p. 125. At common law. By statute. CHAPTEE I. copyright in books and dramatic and musical works. Nature of Copyright At Common Lam Sy Statute Present Term allowed . . Dramatic and Musical Pieces Infringement . . Megistration , . Assignment In what may exist .. MS.— Distinct paHs of Work Translations . . . . Lam Reports . . As to Newspapers Music . . Lectures 118 118 118 119 119 119 120 120 121 121 121 121 121 122 122 Piracy and Remedy for . , 122 A iridgment — Quantity talten . . ,, ,, 122 Piracy and Remedy for — contd. Beviews — Pair Quota- tions .. , . .. 123 Dictionaries — Direc- tories .. .. .. 123 Incidents of Novels and Dramas .. . . 123 Acquiescence, Laches. . 123 Rights of Plaintiff ^ .. 123 Sold— Unsold Copies . , 123 Pdition 123 International Copyright . . Authors of Rooks, ^c. published Airoad .. Reciprocal advantages in Foreign Country . . Right of Translation must he reserved Publication . . Registration . . 123 123 124 124 124 124 Nature of Copyrightr\ Copyright, as defined in the prin- cipal statute now regulating copyright, the 5 & 6 Vict. c. 45, means the sole and exclusive liberty of printing or other- wise multiplying copies of any subject to which the word is applied in the act (s. 2). Copyright does not exist at common law ; per Lords Brougham and St. Leonards, Jefferys v. Boosey, 4 H. L. C. 815; Reade v. Conquest, 9 C. B., N. S. 755. The 8 Anne, c. 19, in effect gave authors the copyright of their worlis for a term of fourteen years from publication, and a further term of fourteen years if the author should be living at the expiration of the first Nature of Copyright. 1 19 term. The 54 Geo. 3, c. 156, extended the copyright term to twenty-eight years absolutely, or to the end of the author's life if he should be living at the expiration of this period. The 5 & 6 Vict. c. 45 repeals the two last-mentioned Present term, acts, and enlarges the copyright term to the end of the author's life and a period of seven years after his death ; or if this term falls short of forty-two years, or if the work is published after the author's death, the copyright is to endui'e for forty-two years from publication absolutely, to be the property of the author, or the proprietor of the MS. if published after his death (s. 3). The copyright extends to every volume, part or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart or plan, separately published (s. 2). The act applies to previously published boohs unless assigned for value, and then also if the pro- prietor and author, or his representatives, agree (s. 4). After the death of the author the privy council may autho- rize a republication, if the proprietor of the copyright refuses to republish (s. 5). By the 3 & 4 Will. 4, o. 15, authors of Dramatic and dramas not printed and published had the sole right of re- °»"8'<=«'i ?'««»• presenting their pieces, and if published of representing them for twenty-eight years after the first publication, and if the author was then living for the remainder of his life. The provisions of this act are extended to musical compositions (5 & 6 Vict. c. 15, s. 20), and the provisions of the Copy- right Act are extended to dramatic and musical pieces, the first representation or performance being equivalent to the first publication of boolis {ib.). The words " dramatic piece " include every tragedy, comedy, play, opera, farce or other scenic, musical, or dramatic entertainment (5 & 6 Vict. c. 45, s. 2). By sect. 21, the remedies given by the 3 & 4 Will. 4, c. 15, are reserved. Any person printing for sale or exportation any copyright infringement. book without the proprietor's written consent, or importing for sale or hire any book so unlawfully printed abroad, or selling or publishing, or having in his possession for sale or hire any book so unlawfully printed, is liable to a special action on the case. 5 & 6 Vict. c. 45. Before proceeding for an infringement, an entry of the work must first be made in the register of the Stationers' Company (s. 24), and the day of the publication of the book is material. Mathieson V. Harrod, L. R., 7 Eq. 270. This provision does not apply to separate articles in periodicals (see s. 18). Mayhew v. Maxwell, 1 J. & H. 312. No person except the proprietor of the copyright shall import into any part of the British dominions, for sale or hire, any book first composed or written, printed and published within the united kingdom, in 120 Nature of Copyright. Entry at Sta- tioners' Hall. Assignment. which there shall be copyright and reprinted out of the British dominions (s. 17). The 8 & 9 Vict. c. 93, s. 9, and 16 & 17 Vict. c. 107, ss. 44, 46, and 18 & 19 Vict. c. 98, ss. 39, 40, also contain provisions prohibitory of the importa- tion of such books. The 10 & 11 Vict. c. 9.5 permits, in certain cases and under certain regulations, the suspension of the 4 & 5 Vict. c. 15, and 8 & 9 Vict. c. 93 in the colonies. The proprietor of copyright in a book may register it at Stationers' Hall, and the registered proprietor may assign his interest by an unstamped entry in the register, which has the same effect as a deed (5 & 6 Vict. c. 45, s. 13). Where the work is dramatic, registration is not necessary to give a right of action for penalties. Marsh v. Conquest, 17 C. B., N. S. 418. But no copyright is acquired by the registration of a work before its actual publication. The Correspondent Newspaper Co. v. Saunders, 11 Jur., N. S. 540. Neither an entry in the register nor a deed is necessary to an assign- ment, which is valid though made merely by writing and unattested. See per Parke, B., Jefferys v. Boosey, 4 H. L. C. 931. Any person aggrieved by any entry on the register may apply to have it expunged or varied (s. 14). See Ex parte Davidson, 18 C. B. 297. The assignment of the copyright of dramatic or musical pieces is not to convey the right to represent or perform them unless so expressed in Articles in maga- the entry of assignment (s. 22). Copyright in articles, &c., zmea, &c. composed for encyclopaedias or periodicals on the terms that the copyright shall belong to the proprietors of the encyclo- paedias, &c., and paid for by them, belongs, when paid for (^Richardson v. Gilbert, 1 Sim., N. S. 336), to such pro- prietors, except that the right of publishing in a separate form articles in magazines or other periodicals of the like kind, after twenty-eight years, reverts to the author, and during the twenty-eight years such articles cannot be pub- lished separately without his consent. And the author may reserve to himself, by express or implied contract, the right of publication in a separate form during the twenty-eight years (s. 18). See Bp. Hereford v. Griffin, 16 Sim. 190; Sweet V. Benning, 16 C. B. 459; Smith v. Johnson, 4 Giff. 632; Mayhew v. Maxwell, 1 J. & H. 312. Alien friends are entitled to the protection of the act, for the word author, as used in the act, is equally applicable to foreigners as to British subjects. Routledge v. Low, L. K., 3 H. L. C. 100. In this case Lords Cairns, C, and Westbury, considered that the protection of the Copyright Act extended to every author who first publishes iu the united kingdom, wheresoever he may then be resident, whether in the united kingdom or abroad. Lords Cran- Works of alien friends. In ivhat Copyright may subsist. 121 worth aud Chelmsford, dub. See Jefferys v. Boosey, 4 H. L. C. 815, decided oq the statute of Anne; Low v. Ward, L. R., 6 Eq. 415. Where there is no special contract to the contrary, the assignor of the copyright is entitled, after the assignment, to continue selling copies of the work printed by him before the assignment and remaining in his posses- sion. Taylor v. Pillow, L. R., 7 Eq. 418. In what Copyright may subsist.^ The author of an un- Manuecript. published work will be protected by injunction against an attempted publication of it. Macklin v. Richardson, Amb. 694; D.of Queensbury-i}^. Shebbeare,2^i.S29; see: Prince Albert V. Strange, 1 Mac. & G. 25. Copyright may subsist CompUation. in a work consisting partly of compilations and partly of original matter {Tonson v. JValker, 3 Sw. 672; Lewis v. Fullarton, 2 Bea. 6; consider CaryY.Fadin, 5 Ves. 24); in msttact parts of distinct parts of S. work which can be separated from the ^°''''' rest, as in part of a magazine story {Low v. Ward, L. R., 6 Eq. 415); in notes, corrections, &c., to an existing work {Gary v. Longman, 1 Ea. 358; Lewis v. Fullarton, sup.); in a catalogue, unless it is a mere dry list of names {Hotten T. Arthur, 1 H. & M. 603); in a calendar {Longman v. Winchester, \%Nes,.2%^); in translations( ??^fflW v. £arnarc?, Translations. 3 V. & B. 77); in songs, though adapted to old airs {Chap- songs. pell V. Sheard, 2 K. & J. 117; see Chappell v. Davidson, ib. 123); inlaw reports {Butterworth v. Robinson, 5 Ves. Law reports. 709; Saunders v. Smith, 3 M. & C. 711); and in the marginal notes of law reports. Sweet v. Benning, 16 C. B. 459. There can, however, be no copyright in the mere title ntie of a work. of a work; but if the registration of the title be followed by the publication of numbers, as in the case of a magazine or periodical, for some time, a right to the exclusive use of such title will be gained according to the principles regulating the use of trade marks. Hogg v. Maxwell, and Maxwell v. Hogg, L. R., 2 Ch. 307; see Correspondent, S^c. Co. v. Saunders, 11 Jur., N. S. 540 j Clement v. Maddick, 1 G-ifF. 98; Ingram v. Stijf, 5 Jur., N. S. 947. See, as to the right to a particular business name, Lee v. Haley, L. R., 5 Ch. 155. A newspaper is not within the Copyright Act, 5 & 6 Newspapers. Vict. c. 45, and does not require registration; but the pro- prietor has such a property in its contents as will entitle him to sue in respect of a piracy. Cox v. Land and Water Journal Co., L. R., 9 Eq. 324. See further, as to news- papers, Piatt V. Walter, 17 L. T., N. S. 157; Kelly v. Hutton, L. R., 3 Ch. 703. The author or publisher of a libellous or immoral work has no legal property in it. Stock- dale V. Onwhyn, 5 B. & C. 173; Lawrence v. Smith, Jac. 122 Piracy and remedy for. Correspondence. 471; see Southey V. Sherwood, 2 Mer. 435. Copyright in correspondence belongs to the writer, not to the receiver. Pope V. Curl, 2 Atk. 342; Thompson v. Stanhope, Amb. 737; Percival v. Phipps, 2 V. & B. 26; Gee v. Pritchard, Music. 2 Sw. 402. With respect to music, although the question, in a case of infringement, is, in general, whether the airs can be recognized by the ear to be substantially the same {jyAlmaine v. Boosey, 1 Y. & C. 298), yet there may be copyright in a pianoforte score of an opera, as distinguished from the opera itself. Wood v. Boosey, L. R., 3 Q. B. 223. Copyright may subsist in the words and title page of a song representing it to be sung by a favourite singer, which will be protected, though there may be no copyright in the Lectures. air. Chappell v. Shear d, 2 K. & J. 117. The author of lectures, or person to" whom he has sold or conveyed the copy of them, has the sole right of publishing them (5 & 6 Will. 4, c. 65, s. 1), with certain exceptions (s. 5). See Abernethy v. Hutchinson, 1 H. & Tw. 28. Injunction. Piracy and remedy for.] The remedy in equity for piracy is an injunction restraining the publication com- plained of, on an undertaking by the plaintiff to bring an action. Bentley v. Foster, 10 Sim. 329; Sheriff y. Coates, 1 E. & My. 159; Ingram v. Stiff, 5 Jur., N. S. 947. The judge in equity determines whether a prima facie case of piracy is made out. Fradellao v. Weller, 2 R. & M. 249 ; Bramwell v. Halcomh, 3 M. & C. 737. The question of infringement must necessarily depend upon the circiunstances Abridgmenta. of each Case. An abridgment is said not to be piracy {Bell V. Walker, 1 B. C. C. 451 ; and see per Lord Lyndhurst, D'Almaine v. Boosey, 1 Y. & C. 298; consider Butterworth V. Robinson, 5 Ves. 709) ; but the qiiantity taken is not always the criterion. Bramwell v. Halcomb, sup. ; and see Bell V. Walker, sup.; Gyles v. Wilcox, 2 Atk. 143; Campbell v. Scott, 11 Sim. 31. Copying seventy-five pages out of 118 and several plates is piracy {Roworth v. Wilkes, 1 Camp. 94), as indeed a very much less proportion would be. See Scott y. Stanford, L. R., 3 Eq. 718. "In short, we must in deciding questions of this sort look to the nature and objects of the selections made, the quantity and value of the material used, and the degree in which the use may prejudice the sale or diminish the profits or supersede the objects of the original work." Per Mr. Jus. Story, Folsom V. Marsh, 2 Story (Amer.), 100 — 116; ace. Scott v. Stan- ford, L. R., 3 Eq. 722 ; and see Mawman v. Tegg, 2 Russ. 385, and Jarrold v. Houlston. 3 K. & J. 708, where some important general principles are laid down. Piracy and remedy for. 123 Although a portion of a work may be taken, it may by men- tal labour be subjected to such revision and correction as to produce an original result. Ih. ; Spiers v. Brown, 6 W. R. 352 ; Gary v. Kearsley, 4 Esp. 168. A translation of a Translations. French work, which is itself a translation of an English work, is an infringement of the latter. Murray v. Bogue, 1 Drew. 353. In reviews a certain latitude is allowed ( Whittingham Keviews. V. Wooller, 2 Swan. 428), and fair quotation is allowable, though it is difficult to define the limits of it. fVilkins v. Aikin, 17 Ves. 424. " In the case of a dictionary, map. Dictionaries- guide-book or directory, where there are certain common ™*i*- objects of information, which must, if described correctly, be described in the same words, a subsequent compiler is bound to set about doing for himself that which the first com- piler has done." Per Wood, V.-C, Kelly v. Morris, L. R., 1 Eq. 701 ; see Morris v. Ashbee, L. R., 7 Eq. 34 ; Morris V. Wright, L. R., 5 Ch. 279. An author who has been led by a former author to refer to older writers may, without committing piracy, use the same passages in the older writers which were used by the former author. Pike v. Nicholas, L. R., 5 Ch. 251. There is no monopoly in any theory pro- pounded by a writer. lb. The representation of the inci- Novels dents of a novel in a dramatic form is not piracy {Reade v. '1=™^''''^'='^- Conquest, 9 C. B., N. S. 755) ; but it is to publish a play so constructed (^Tinsley v. Lacy, 1 H. & M. 747); and if the author of a play turn the incidents of it into a novel, it is piracy of the play to take the novel and dramatize it. Reads V. Lacy, 1 J. & H. 524. There must be no acquiescence Mast be no ac- in the piracy on the plaintifi^s part {Saunders v. Smith, 3 ?S^™"^" M.&C.711; s&e RundellY. Murray, 3 SkcZW); nor delay in applying to the court. Bailey v. Taylor, 1 R. & My. 73; Lewis V. Chapman, 3 Bea. 133. If it be established to the satisfaction of the court that Eights ot plaintiff. there is an infringement, the owner of the copyright will be Sow— unsold entitled to the unsold copies of the piratical work, without °'*'^- making any compensation for them, and to the clear profits arising from the sale of the other copies. Delf v. Dela- motte, 3 K. & J. 581 ; see Colburn v. Simms, 2 Ha. 543. Wliere the defendant alleges that bis work is a fair com- pilation from many others and not a copy of any one, the Production oi production of his original manuscript is of the highest im- ™''™*'="i''- portance. Hotten v. Arthur, 1 H. & M. 603. As to the Edition. meaning of the word "edition" in a contract between author and publisher, see Reade v. Bentley, 3 K. & J. 271; 4 K. & J. 656. Lnternational Copyright."] By the 7 & 8 Vict. c. 12, the Authors of books, 124 International Copyright. &c. published abruud. Reciprocal benefits given by foreign country. Right of transla- tion must be reserved. Kegistration. International Copyright Act (extended to paintings, draw- ings and photographs by the 25 & 26 Vict. c. 68, s. 12), the Queen, by order in council, is authorized to give the authors, &c., of books, prints and -works of art, to be defined in the order first published in any foreign country, the privilege of copyright in this country during the period named in such order, not exceeding the term of copyright to which authors, &o., of the like works in England are entitled (s. 2). By a like order the Queen may direct that composers of dramatic and musical pieces first represented abroad shall have similar rights in Great Britain (s. 5). Provisions are made for re- gistering similar to those contained in the Copyright Act (ss. 6 — 8). The benefit of the act is limited to foreign countries where reciprocal protection is secured (s. 14). The authors of works first published abroad are not entitled to any copy- right save under the act (s. 19), and this provision extends to Englishmen publishing abroad. Boucicault v. Delqfield, 1 H. & M. 597. By the 15 & 16 Vict. c. 12, which recites a convention with France for extending in each country the enjoyment of copyright in works of literature and the fine arts first published in the other, and that it is expedient that the Queen should be enabled to make similar stipulations with any foreign power, it is enacted that the Queen may by order in council direct that authors of books published abroad may be empowered to prevent the unauthorized trans- lations of such books in the British dominions, but for not more than five years (s. 2). Sect. 3 contains similar pro- visions with reference to the representation here of trans- lations from foreign dramatic pieces. The existing law of copyright in this country shall be applied to prevent such translations as are mentioned in s. 2, and such representa- tions as are mentioned in the 3rd section (ss. 3, 5). Fair imitations or adaptations of foreign dramatic pieces are not prevented (s. 6). The following provisions must be com- plied with:— (1) The original work must be registered. (2) The author of the original work must notify that the right of translation is reserved. (3) The translation, or part of it sanctioned by the author, must be published in the foreign country or here within one year after registration, and the whole translation within three years. (4) The translation must be registered. (5) As to books published in parts, each part must be registered within three months after first publication abroad. (6) The translation of dra- matic pieces must be published within three months of regis- tration of the original work. (7) These regulations apply to newspapers and periodical articles if published in a sepa- rate form, not otherwise (ss. 7, 8). This act and the conven- Sculptures, Casts, SfC. 125 tion with France do not exempt authors of works in France claiming copyright in this country from the conditions and restrictions affecting authors of works in this country. Cassell V. Stiff, 2 K. & J. 279. If a foreigner translates intohis own Double transia- language an English work, and an Englishman retranslates "™' the work into English, that is an infringement of the original copyright. Mtcrray v. Bogue, 1 Drew. 353. The intention of the framers of the International Copyright Act, 1852, in requiring that in order to entitle the foreign author of a dra- matic piece to the benefit of the act, a translation sanctioned by the author must be published within three calendar months of the registration of the original work, was to give to English people the opportunity of knowing the foreign work as accu- rately as is possible by means of a translation. A translation, such as the act requires, must be a translation of the whole work, and it is not sufficient that it be a versio9i which the foreign author may have sanctioned as a translation. Wood V. Wood, Wood V. Chart, L. E., 10 Eq. 193. CHAPTER II. SCULPTURES, PRINTS, PAINTINGS, DESIGNS. 126 For ornament .. ..126 Sculptures, Casts, Sj'c. .. 125 Prints, lEngravings, ^c. .. 126 Mngravings in Books .. 126 Paintings, Dramings, Pho- tographs .. . . . . 126 Common La/io Might , . 126 For utility .. . . 126 Patterns for Linens, S'c 126 Sculptures, Casts, S^c] The 38 Geo. 3, c. 71, contained provisions giving a right of property in sculpture. This act was amended by the 54 Geo. 3, c. 56, and repealed by the 24 & 25 Vict. c. 101. The 54 Geo. 3, c. 56, the act now in force, gives the sole right and property to inventors of new and original sculptures and models, copies or casts of the human figure, or of any busts, or of any animals, or of any - subject, being matter of invention, for fourteen years from invention, first putting forth or publishing the same, the name of the proprietor and the date being on the sculpture (s. 1 ), and the further term of fourteen years if the original inventor should be living at the expiration of the first term (s. 6). The remedy for infringement is by special action on the case (s. 3). The sculptures, &c., may be registered (13 & 14 Vict. c. 104, 126 Designs. Engravings in boolis. Common law riglit. For ornament. For utility. Patterns for linens, &c. s. 6), the word " registered " being used, and this gives the proprietor protection in case of piracy (s. 7). Prints, Engravings, S^c] By the 7 Geo. 3, c. 38, the pro- perty in prints and engravings is vested in the inventor for twenty-eight years from the first publication, the date of which and pioprietor's name are to be affixed to each print. And see 8 Geo. 2, c. 13; 17 Geo. 3, c. 57. Gambart v. Sumner, 5 H. & N. 5. The Copyright Act, 5 & 6 Vict. c. 45, extends to an engraving in a book which is printed with the letter-press, on the same paper, at the same time. Bogue V. Houlsfon, 5 De G. & S. 267. An action on the case is given for piratically engraving, etching, &c., copying, pub- lishing or selling any engraving or print, &c. (extended to lithographs and other prints taken by mechanical process, 15 & 16 V^ict. c. 12, s. 14). Paintings — Drawings — Photographs.] By the 25 & 26 Vict. c. 68, s. 1, the exclusive right of copying, engraving and multiplying paintings, drawings and photographs belongs to the author, being a British subject, or resident within the dominions of the crown, for his life and seven years after his death. The provisions of the International Copyright Act (ante, p. 124-5) are to be taken as included in this act(s. 12). As to the common law right, see Turner v. Robinson, 10 Ir. Ch. 510. Photographic copies have been held to be within the 17 Geo. 3, c. 57. Gambart v. Ball, sup.; Greaves v. Ashford, L. R., 2 C. P. 410; see Strahan v. Graham, 15 W. R. 487. Designs^] The copyright of designs is regulated, as to ornamental designs, by the 5 & 6 Vict. c. 100, and, as to designs of utility, by the 6 & 7 Vict. c. 65: see also 13 & 14 Vict. c. 104; 21 & 22 Vict. c. 70, and 24 & 25 Vict. c. 73. See Norton v. Nickolls, 4 K. & J. 475; Sarazin v. Hamel, 32 Bea. 151; Wendover v. Smith, ib. 200; Holdsworth v. M-Crea, L. R., 2 H. L. 380. The rights of proprietors of original patterns for printing linen, cotton, &c., are regulated by the 27 Geo. 3, c. 38 (perpetual by 34 Geo. 3, c. 23); 2 & 3 Vict. c. 13, and c. 17. ( 127 ) DONATIO MORTIS CAUSA. last Illness of MTiai is Gift in in com DeatTi Where not in contem- plation of Death Where a Testamentary Gift is intended WTw may te Donee . . Wluit may be subject of Money — Mortgages — Bills — Cheques — Policies 127 127 . . 127 128 128 128 128 Delivery Actual Delivery Constructive — Giving Donor retaining Power over ,. . . . . Revocation of Gift .. Resuming Possession • • Legacy in lieu of Not affected by Wills Act 129 129 129 129 129 129 129 129 What^ Donatio mortis causa is where a man lies in ex- Gift in laat iii- tremity or last illness {Blount v. Burrow, 1 Ves. jun. 546; Jl,^°in^™^t'm Miller V. Miller, 3 P. W. 356), and not having an oppor- piation of aeath. tunity of making his will, lest he should die before he could make it, gives with his own hands, or by the hands of another {Miller v. Miller, sup.), his goods to his friends. This, if he die, shall operate as a legacy ; but if he survive, the property reverts to him (per cur. Hedges v. Hedges, Prec. Chanc. 269; Jones v. Selby, ib. 300) ; and the donee is a trustee for him. Staniland v. Willott, 3 Mac. & G. 664. There must be a gift prior to the death ; a direction to a third person to keep the goods until the donor's death and to deliver them afterwards is insufficient. Powell v. Hellicar, 26 Bea. 261. The gift must be absolute, but in contemplation of and to take effect upon the donor's death. Tate V. Hubert, 2 Ves. jun. 120 ; see Cosnahan v. Grice, 15 M. P. C. 215. If made while the donor is ill and shortly before his death, it wiU be presumed to be made in contem- plation of death and in the donor's last illness. Lawson v. Lawson, 1 P. W. 441; WUliams, Exors. 726. Where an immediate gift is intended, and not a gift con- Gift not in con- tingent upon the death of the donor, this principle will not d™th*"™ °' apply, and such a gift will take effect or fail, according to the nature of the property on which it affects to operate : if it be a gift of property which passes by delivery only, it will be 128 What may be the subject of. Where testa- mentary gift In- tended, donatio mortis causd cannot be pre- sumed. Who may be donee. Where flduciaiy relation exists. good, but otherwise where delivery alone would be insufficient to pass an interest in it. Ward v. Turner, 2 Ves. sen. 431 ; Edwards v. Jones, 1 M. & C. 226 ; Lambert v. Overton, 13 W. E. 227. And if a testamentary gift be intended, which fails for want of proper attestation, a donatio mortis causa cannot be presumed. Re Patterson, Mitchell v. Smith, 33 L. J., Ch. 696. It is xiot necessary that the donor should expressly say that the gift is conditional upon his death ; this fact may be inferred from the circumstances of the case. Gardner v. Parker, 3 Madd. 184. A donatio mortis causa is subject to the donor's debts. Tate V. Leithead, Kay, 658. The burthen of proof is on the donee to show that such a gift was intended. Cosnahan v. Grice, 15 M. P. C. 215. The gift may be to the wife of the donor. Tate v. Leithead, Kay, 658 ; Boutts v. Ellis, 4 D., M. & G. 249. Where the donee is a person who stands in a fiduciary or confidential relation to the donor, the evidence of the gift should be unexceptionable ( Clarke v. Bathe, 3 W. N. 74), as where the former is a priest in the habit of visiting the latter and exercising the natural influence attached to his position. Thompson v. Hefferman, 4 Dr. & War. 285. So where the donee is the solicitor of the donor. Walsh v. Studdart, ib. 159. See tit. " Fraudulent and Voltintakt Conveyances, &c." Money— mort- gages — bills — cheques — policies. What may be the subject of.\ Anything may be the subject of a donatio mortis causa, the property in which passes by delivery, as money {Shanley v. Harvey, 2 Ed. 125) ; even mortgage securities and bonds (Duffield v. Hicks, 1 Bli., N. S. 497; Gardner v. Parker, 3 Mad. 184 ; see Hurst v. Beach, 5 Mad. 351 ; Clavering v. Yorke, 2 Coll. 363, n. ; Re Patterson, 10 Jur., N. S. 578) ; bank notes {Shanley v. Harvey, 2 Ed. 125 ; Miller v. Miller, 3 P. W. 356); bills or promissory notes payable to the donor's orders, although not indorsed by him ( Veal v. Veal, 27 Bea. 303 ; Rankin v. Weguelin, cited ib. 309) ; or, as it would seem, bills or promissory notes of the donor himself, and in some cases cheques drawn by him {Lawson v. Lawson, 1 P. W. 441 ; Boutts V. Ellis, 4 D., M. & G. 249) ; but a cheque drawn by him on his own banker must be paid before his death to be a valid donatio mortis causa {Hewitt v. Kaye, L. E., 6 Eq. 198); though a cheque will be a good gift inter vivos if presented before the donor's death, the bank refusing to pay, not on account of want of funds, but in consequence of doubts as to the signature being genuine. Bromley v. Brunton, L. E., 6 Eq. 275. Policies of assur- Delivery. 129 ance ( Witt v. Amiss, 1 B. & S. 109), and a banker's deposit note (iS. C, 33 Bea. 619), or receipt for money {Moore v. Darton, 4 De G-. & S. 517), are valid donationes mortis causa. But not stock, which must be transferred ; and a delivery of the stock receipt is insufficient. Ward v. Turner, 2 Yes. sen. 431. Deliver!/.] There must be a delivery of the thing given Delivery. ( Thompson v. Heffernan, 4 Dr. & War. 285 ) by the donor, or by his order, to the donee, or for his use. Drury v. Smith, 1 P. W. 404; see Farquharson v. Cave, 2 Coll. 356. Thus property cannot be given by mere words, or by writing the names of the donees on the subject-matter of the gift, without an act of gift {Tate v. Hilbert, 2 Ves. jun. 120 ; Bunn v. Markham, 7 Taun. 224; Powell v. Hellicar, 26 Bea. 261); but it has been held that the delivery of the key of a trunk Constructive— is a gift of the trunk and its contents (Jones v. Selhy, Pr. ^^""^ ^^' Ch. 300 ; see Farquharson v. Cave, 2 Coll. 356) ; and the delivery of the key of a warehouse is a delivery of the con- tents of the warehouse. Smith v. Smith, 2 Str. 953; see Ward V. Turner, 2 Ves. sen. 441 ; Jones v. Selby, Pr. Ch. 300. The delivery must be absolute to this extent, that if the No aeuvcry it donor retain the ownership over the subject-matter of the gift, Sou otS! ""' as by keeping the key of a box, the box being re-delivered to him from time to time, the gift will not be a donatio mortis causa. Reddel v. Dobree, 10 Sim. 244; Farquhar- son V. Cave, sup.; see Powell v. Hellicar, 26 Bea. 261; Maguire v. Dodd, 9 Ir. Ch. 452—459. The gift, how- ever, may be coupled with a trust, for instance, to provide for the funeral expenses of the donor. Hills v. Hills, 8 M. & M. 401. If the delivery be accompanied by any declara- tions of intention, they should be contemporaneous with the delivery. Thompson v. Heffernan, 4 D. & War. 385. Revocation of Gift.] The donor may resume possession Resuming pos- of the gift on recovering from his illness {Bunn v. Markham, ''''""°°- 7 Taun. 232) ; but cannot revoke it by his will {Jones v. Selby, Pr. Ch. 300), though it may be satisfied by a legacy. Jb.; r-egacy in iieu of. see Johnson v. Smith, 1 Ves. sen. 314. A donatio mortis causa is not aiFected or abolished by the 1 Vict. o. 26 {Moore Not aiiectea by v. Darton, 4 De G-. & S. 517\ nor does it require the assent W'"" ^t^'- of the executor {Tate v. Hilbert, 2 Ves. jun. 120); but it is subject to legacy duty. 8 & 9 Vict. c. 76, s. 4. ( 130 ) EASEMENTS. Ch. 1. — Natuee ov, in genekal, p. 130. Ch. 2. — Acquired by,Grant or Prescription, p. 131. Ch. 3. — Prescription generally, 2 & 3 Will. 4, c. 71, p. 137. Sec. 1. — Prescription prior to Act, p. 137. Sec. 2. — ^Prescription Act, p. 138. Ch. 4.— Op particular Easements and Eights in the NATURE op Easements, p. 143. Sec. L— Eight of Wat, p. 143. Sec. 2. — Eight to Light, Air and Prospect, p. 145. Sec. 3.— Eights in respect op Water, p. 148. Sec. 4. — Eight to Support for Land or Build- ing, p. 151. Sec. 5. — Easements in respect of Nuisances, p. 153. CHAPTEE I. NATURE OF, IN GENERAL. Affirmative — Negative . . 130 Continuous— Discontinuous 131 Apparent — Non-apparent. . 131 How acquired .. . . 131 An easement may be defined or described as an incor- poreal right which the owner of one tenement, called the dominant tenement, has in, upon or over the tenement, called the servient tenement, of another. Easements are of infinite variety, but are reducible, so far as regards the principles applicable to them, to a few leading divisions. An easement is said to be affirmative when tlie owner of the dominant tenement has a right to do some act in or upon Nature of Easements. 131 or affecting the servient tenement. Thus, rights of way (Gale, Easements, 20) of access, to take water from a spring {Race V. Ward, 4 E. & B. 702), to discharge water ( Wright V. Williams, 1 M. & W. 77), or smoke through a flue {Her- vey V. Smith, I K. & J. 389) over, in or upon the land of another, are affirmative easements. A right to prevent the Negative. owner of the servient tenement from doing some particular act which would interfere with the enjoyment of the domi- nant tenement is a negative easement. Thus, the right to light and air, that is, the right that the owner of the servient tenement shall do nothing to obstruct its access to the domi- nant tenement, is negative. Gale, Easements, 21. Ease- ments may also be distinguished as continuous, without any Continuous, necessity for actual interference, or what may be termed active user, as a right to light; discontinuous, which requires Discontinuous. such interference or active user, as a right of way ; apparent. Apparent. where some outward sign of it exists, as a window ; non- xon-apparent. apparent, where no such sign exists, as an underground channel for water. See also Gale, Easements, 22 ; Suffield v. Brown, 10 Jur., N. S. 111. Easements cannot subsist as such where the two tene- ments belong to one owner, for an easement pre-supposes dominant and servient tenements. See Unity of Posses- sion, post. Easements are acquired by express or implied How aaiuired. grant, by prescription, and sometimes by statute. Richards V. Richards, Johns. 255. CHAPTEE n. ACQUIRED BY GRANT, EXPRESS OR IMPLIED, Express Grant .. .. 131 At Law— In Equity . . 131 Who bonnd iy— Who may take advantage of 132 Implied Grant .. .. 132 Easements of Necessity . 132 Apparent and Continii- ons Easements . . 133 Implied Contracts ie- tween Vendor and Purchaser .. . . 133 Implied Grant — contd. Grantor cannot dero- gate from his on>n Grant .. ..133 Noil-apparent Ease- ments •• •• . • ISi Unity of Possession . , .. 135 Extinguishes Easement 135 Re-grant ,. .. 136 Estates not of equal duration ,. .. 136 Obligation to repair 137 Express Grant. ^ The right to an easement, if by express At law. grant, must at law be created by an instrument under seal k2 132 Easements — Express Grant. In ciiiiUy. Wlio bound by. Who may take advantage of. Easements of necessity. (Ilewlins v. Shippam, 5 B. & C. 221 ; Wood x. Ledbitter, 13 M. & W. 838); but in equity it may be created by a parol promise, licence or permission, which will be enforced where there has been expenditure on the faith of it (i). of Devon- shire V. Eglin, 14 Bea. 530 ; see Somerset, 8;c. Co. v. Har- court, 2 D. & J. 603 ; Bell v. Mid. R. Co., 3 D. & J. 673 ; Mold V. Wheatcroft, 27 Bea. 510; Cotching v. Bassett, 32 Bea. 101) ; and even at law a parol licence by the owner of the dominant tenement to the owner of the servient tenement to use such servient tenement in a way prejudicial to the ease- ment of the former is good, and not countermandable. Lig- gins Y. Inge, 7 Bing. 682 ; Fisher v. Moon, 1 1 L. T., N. S. 623 ; Water low v. Bacon, L. E., 2 Eq. 514. A purchaser or grantee of the servient tenement, with actual or constructive notice of the easement, is bound by it in equity, though it is not granted by an instrument valid at law. Hervey v. Smith, 22 Bea. 299. But it must be an easement, not a mere right granted by licence during a tenancy and revocable. Russell v. Harford, L. R., 2 Eq. 507 ; Daniell v. Anderson, 8 Jur., N. S. 328. As to the distinction at law between a covenant in respect of an ease- ment and grant of an easement, where the former does not run with the land, see Rowbotham v. Wilson, 8 H. L. C. 362. The grantee of the tenement to which an easement is attached, and those claiming under him, are entitled to the easement by the grant of the tenement, whether the grant be in fee or for a lesser estate. See Fentiman v. Smith, 4 Ea. 107 ; Canham v. Fiske, 2 C. & J. 126 ; Skull v. Glenister, 16 C. B., N. S. 81. As to the apportionment of an easement on a transfer of the dominant tenement to several persons, see Codling v. Johnson, 9 B. & C. 934 ; Harris v. Drewe, 2 B. & Ad. 164; Gale, Easements, 79, n. {m), and 512. Implied Grant."] It is an ancient rule of law that when- ever property or a right is granted or reserved, everything necessary to render the property or right available is tacitly granted or reserved with it. Thus if a lessor except trees from the demise, he has, as incident to the exception, a right to enter on the demised ground for purposes connected with the trees, for instance, to cut them down. Lifords case, 11 Eep. 52 a; see Pinnington v. Galland, 9 Ex. 1. So where a person grants or devises land to another, he im- pliedly grants a right of way to it over his own land, if there be no other way. 1 Wms. Saun. 321, n. (6) to Pomfret v. Ricroft; Gayford v. Moffat, L. R., 4 Ch. 133 ; see Hinch- cliffe V. Ld. Kinnoul, 5 B. N. C. 25; Pearson v. Spencer, 3 B. & S. 761. And such a right does not seem to be de- termined merely by reason of another way being subsequently Implied Grant. 133 made. See Proctor v. Hodgson, 10 Ex. 824; and comp. Holmes v. Goring, 2 Bing. 84, from which case, however, Parke, B., dissented in Proctor v. Hodgson, sup. A way way of necessity. to church or market or a watercourse are easements of necessity. Sury v. Pigot, Poph. 166. But a way is not necessarily one of necessity because it is the most convenient way. Barlow v. Rhodes, 1 C. & M. 449 ; questioning Morris V. Edgington, 3 Taun. 31. Though if there are two ways of necessity, the owner of the dominant tenement may use that which is most convenient for him. lb. See Pheysey V. Vicary, 16 M. & W. 484. Where the owner of two Apiiarent and oon- tenements disposes of one, all easements of necessity, and [^'^JJJ^^ "^'"^" apparent and continuous easements which such tenement en- j..^,^ i^'^, ^.^„^„^ „, joyed in, over or upon the other continue, as a general rule, one oftwo tcuc- to be annexed to it. Palmer v. Fletcher, 1 Lev. 122 ; Tenant "™''' V. Goldwin, 2 Eay. 1093; Cox v. Matthews, 1 Vent. 237. As to rights of way, see post, p. 143. In the converse case, impiica contracts however, as will be seen, the rule does not hold good, and tei^'een ven.ii.r , . Til .7.7 . (. ^'"^ purcliaser. the purchaser is not bound by any implied reservation ot rights by his vendor in respect of the property retained by him. Thus if the owner of a house and adjoining land sell the land and retain the house, the purchaser of the land will not be restricted in the user of it ( White v. Bass, 7 H. & N. 722), but may build so as to obstruct even the ancient lights of his vendor. Curriers Co. v. Corbett, 2 Dr. & Sm. 35. A purchaser, however, will be bound by contract or condi- tions of sale under which he purchased, restricting him to build in such a way as not to obstruct a neighbour's window, though recent. Compton v. Richards, 1 Pri. 27. The Grantor cannot cases of Palmer v. Fletcher, &c., cited above, rest upon own°grmt?™ '"* the principle that a grantor cannot derogate from his own grant. There are many other cases governed by the same principle. Thus, in the converse case of White v. Bass, sup., if the owner of a house and adjoining land sell or let the house, he cannot, nor can any one claiming under him, afterwards build on the land so as to obstruct the windows of the house. Swansborough v. Coventry, 9 Bing. 309; see Hall v. Lund, 1 H. & C. 676 ; Davies v. Marshall, 1 Dr. & Sm. 557 ; Frewen v. Phillips, 11 C. B., N. S. 449. But a person who grants a lease of a house and garden is not precluded merely by his covenant for quiet enjoyment from building on open ground retained by him adjacent to the house and garden, though by so doing the enjoyment of the garden as pleasure ground is interfered with, there being no obstruc- tion of light and air. Potts v. Smith, L. R., 6 Eq. 311. This case was held not to come within the general rule. Where, however, the owner oftwo closes sells one, having a 134 Easements — Implied Grant. Use of way not being way of necessity. Non-apparent easements. Pyer v. Carter. right to a flow of water over it from the other, which he retains, he cannot, nor can any one claiming under him, stop the flow of water ; for the land is conveyed with at all events the continuous and apparent easements' upon it, without any express grant of them. Canham v. Fiske, 2 C. & J. 126; Skull V. Glenister, 16 C. B., N. S. 81 (a right of way on a demise) ; Ewart v. Cochrane, 7 Jur., N. S. 925 ; Hall v. Lund, 1 H. & C. 676 ; Jlerz v. Union Bank, 2 Giff. 686 ; see Wardle v. Brocklehurst, 1 E. & E. 1058, where there was an express grant of " all waters, watercourses, liberties," &c. And if a grant be made of land for the purpose of making a railway or building a house upon it, such grant carries with it, by implication, the right of reasonable and necessary support for the railway or house from the sub- jacent and adjacent lands of the grantor. Cal. R. Co. v. Sprot, 2 Macq. 449 ; see Metrop. Board of Works v. Metrop. R. Co., L. E., 3 C. P. 612; Richards v. Jenkins, 17 W. R. 30. With respect, however, to rights of way and discontinuous easements, there must be an express grant of them by ap- propriate words ; for such a grant will not be implied unless in the case of easements of necessity. In Pheysey v. Vicary (16 M. & W. 484), the owner of two houses with grounds in front had a carriage entrance from the main road into the grounds, with a circular sweep round both houses back to the same entrance. He devised the houses with their easements to different persons. It was held, that the devisee of one had a right to stop up the car- riage way where it passed opposite his house ; for it was not a way of necessity for the other devisee. See Sury v. Pigot, Poph. 166; Pearson v. Spencer, 3 B. & S. 761 ; comp. Skull V. Glenister, 16 C. B., N. S. 81. Such of the preceding cases as relate to continuous and apparent easements depend, it will be observed, in a great degree upon the principle that no man can derogate from his own grant. It does not, however, foUow that this principle is applicable where the vendor or grantor retains the tene- ment which has the benefit of an easement upon or over another tenement which he sells, unless of such a nature as to be one of necessity and apparent. It has been held, indeed, that even where an easement is non-apparent, for instance, a drain communicating between two houses, if it can be ascertained to exist on a careful inspection, the vendor of the servient tenement, although ho conveys it absolutely, without any reservation to himself, is entitled, if he retains the dominant tenement, to the use of the drain as against the purchaser. F)jer v. Carter, 1 H. & N. Unity of Possession. 135 916. But this case was not followed by Lord Westbuiy iu Suffield V. Brown (10 Jur., N. S. Ill), who held that a Sughu. y. Broun. grantor cannot impliedly reserve such rights ; he must do so expressly, even where the easements are continuous and apparent. And this view was also taken by Lord Chelms- ford in (Jrossley v. Lightowler, L. R., 2 Ch. 486. But Lord Romilly, M. R., who had acted upon Pyer v. Carter in Suffield V. Brown (9 Jur., N. S. 699), has in a recent case (Morland v. Cook, L. R., 6 Eq. 265), again expressed his concurrence in the decision come to in Pyer v. Carter. Comp. Ewart v. Cochrane, 7 Jur., N. S. 925, where, however, the question was whether an easement passed to the grantee; and it was held that it did. See Nicholas v. Chamberlain, Cro. Jac. 121. In Davies v. Sear (L."R., 7 way of necessity. Eq. 427), it was held, that a way of necessity, which is also apparent, is impliedly reserved to a grantor (vendor) where the state of the property at the time of the sale is such as to put the purchaser upon inquiry. In Polden v. Bastard (L. R., 1 Q. B. 156), A., the owner of two houses, one of which he occupied, the other being in the occupation of B., devised the latter " as now in the occupation of B." B. had been in the habit of using a pump on the premises of A. It was held, that this right of user did not pass to A.'s devisee, not being an easement of necessity nor a continuous easement. Where a lessor had let a house to A., reserving the right of using the flat roof at the top, and afterwards let the house to B. without any reservation, but under the description "as the same was late in the occupation of A.," it was held (K. Bruce, L. J., diss.}, that no right to use the roof was thereby reserved to the lessor. Martyr v. Lawrence, 2D., J. & S. 261. It will be seen from the foregoing cases, that the law upon the subject of implied grants and reservations of easements is not quite settled, and an authoritative decision finally reviewing and settling the doctrines enunciated in Pyer v. Carter, Suffield v. Brown, and other cases of that descrip- tion, is much to be desired. Unity of Possession.] When the dominant and servient Extinsuisiies tenements are united and in the possession of one person, there '^'^™™'- can be no easement. See Battishill v. Peed, 18 C. B. 696. This unity of possession will, as a rule, have the effect of com- pletely extinguishing easements as such, so that on a re-grafU to another of the dominant tenement, they will not in general pass with it. See (jale, Easements, 133 ; Onley v. Gardiner, 4 M. & W. 497. Continuous and apparent easements, how- 136 Easements — Unity of Possession. Ke-grant of Estates in domi- nant and servient tenements not of equal dui-ation. ever, will pass, but discontinuous easements and ordinal^ rights of way will not, though a right of way of necessity wiU. See Gale, Easements, 80, ace. per Crorapton, J., in Worthington v. Gimson, 2 E. & E. 618. But if there be something to show an intention to create the right de novo, it will again arise, ^ee Pearson v. Spencer, 1 B. & S. 571; S. C. in error, 3 B. & S. 761. In such cases, it has been said, the grantor should use express words of creation, or introduce the terms therewith used and enjoyed. Plant v. James, 4 A. & E. 749, 761. But the words in italics or other similar words would seem only to have this effect (except in the case of a way of necessity), where there has been an easement prior to the unity of possession, which is followed by a re-grant of that part of the land to which the right originally attached. Thompson v. Waterlow, L. R., 6 Eq. 36; Langley v. Hammond, L. E., 3 Ex. 161. The former case was distinguished by the Master of the Rolls from Plant v. James (which appears to have been cited, however, only as a decision of the Queen's Bench, 5 B. & Ad. 791, when in fact it was a decision also of the Exchequer Chamber, agreeing with the Queen's Bench as to the effect of the words referred to, though reversing the judgment, 4 A. & E. 749), upon the ground that in Plant v. James there had been a right of -w&j prior to the unity of possession, which on a severance of the unity was held to be revived ; but that in the case before him there had been no such right, but the road had been made during the continuance of the unity of possession. L. R., 6 Eq. 41. See further as to the effect of such words Wardle v. Brochlehurst (1 E. & E. 1058), and the cases cited. Gale, Easements, 81, u. Mr. Gale observes (ib. 526), " It is practically immaterial whether the foundation of the right be a new grant or a revival of the old right, but the former is the most correct view of the title to them, and it is certainly more in harmony with the general principles of the law of easements." And see Dugdale v. Robertson, 3 K. & J. 695. There is an exception to the rule as to extinguishment by unity of possession where the estates in the dominant and servient tenements are not co-extensive ; for instance, if there is an estate in fee-simple in one and an estate for life in the other. Simper v. Foley, 2 J. & H. 555. In such cases, where they are not co-extensive, there is merely a suspension of the right during the unity of possession, which on a conveyance of either tenement revives. Ivimey V. Stacker, L. R., 1 Ch. 396, 407 ; see Thomas v. Thomas, 2 C. M. & R. 34 ; Canham v. Fiske, 2 Cr. & J. 126 ; Gale, Easements, 523, 524. Obligation to repair. 137 Obligation to repair. '\ An easement being for the benefit of the dominant tenement, the owner of it is in general bound to do necessary repairs ; for instance, the grantee of a right of way must repair the way {Pomfret v. Rycroft, 1 Wms. Saund. 322 ; Duncan v. Louch, 6 Q. B. 909 ; Ingram V. Morecroft, 33 Bea. 49), and for this purpose he has all necessary rights of entry and other rights. lb. But this obligation may by contract or prescription rest with the owner of the servient tenement. Taylor v. Whitehead, 2 Doug. 749. CPIAPTER III. PRESCRIPTION GENERALLT, 2 & 3 WiLL. 4, C. 71. Sec. 1. — Prescription prior to Act. Length of Time .. . . 137 j Presumptwn of Lost Grant . 137 An easement may also be acquired (like a right of com- Length of time. mon) hj prescription, that is, by enjoyment, in theory, during time whereof the memory of man runs not to the contrary, which was fixed to commence with the reign of Eichard I. See Recital to 2 & 3 Will. 4, c. 71. In practice, however, pre- scriptive enjoyment would have been presumed, before this act, on proof sf user from a time as far back as living witnesses could speak (Jenkins v. Harvey, 1 C. M. & R. 894); and after twenty years' enjoyment, there being no Lost grant pre- evidence to the contrary, a presumption arose of a lost grant, ^^™* ''['^'^^, which, though a mere fiction of law, was in general sufficient enjoyment. to establish the right. Campbell v. Wilson, 3 Ea. 294. The presumption of a grant did not arise against a remainder man whose interest was expectant upon the determination of a tenancy for life (Barker v. Richardson, 4 B. & Al. 579), nor against a landlord not cognizant of the adverse enjoy- ment. Daniel v. North, 11 Ea. 372; see Gray v. Bond, 2 Br. & B. 667 ; Bright v. Walker, 1 C. M. & R. 222. In the last cited case, Parke, B., observed, that the act was in- tended to shorten in effect the period of prescription, making that possession a bar or title in itself, which was so before, only by the intervention of a jury. lb. 218. 138 Easements —Rights of Common. Sec. 2.— Prescription Act, 2 Sp 3 Will. 4, c. 71. Right of Common .. Effect of Thirty Tears and Sixty Years' Ml- joyment Right to Ways, Easements, Watercourses Effect of Twenty Years' and Forty Years' En- joyment Right to Light Effect of Twenty Years' 138 . 138 139 139 139 139 Periods, horo calculated . . 139 Next lef ore Suit ..139 Allegation of Right — Pre- sumption from Enjoyment 140 Time excluded from Compu- tation . . .. . ■ 140 In cases of Infancy, ^c. 140 Action pending .. 140 Subsisting Life In- terests — Tenancies . . 140 Statute does not super- sede Common Lam . , 140 Nature of Enjoyment under Section 2 of Act . . .. 141 Licence .. . . . . 141 Unity of Possession .. 141 Tenant against Land- lord 141 Natu/re of Enjoyment under Section 3 of Act .. . ■ 141 Person claiming Right . 141 Custom of London • . 142 Interruption for One Year 142 Enjoyment as of an Easement .. .. 142 By Lessees . . .. 142 Interruption of Enjoyment . 142 Next before Suit .. 142 What is an Interrup- tion .. .. .. 143 Who may sue .. . . ] 43 Reversioner . . . . 143 Remedy in Equity ■ . Injunction 143 143 Claims to right of common and other profits a prendre not to be defeated after thirty years' enjoyment by showing the com- mencement. After sixty years' enjoyment the right to be abso- lute, unless had nights of Common.] By this act (which does not applj to Scotland, s. 9, but is extended to Ireland by the 21 & 22 Vict. c. 42), for shortening the time of prescription in certain cases, it is enacted, that no claim which may be lawfully made at the common law, by custom, prescription or grant, to any right of common or other profit or benefit, to be taken and enjoyed from or upon any land of the king, or of the Duchy of Lancaster or Cornwall, or of any ecclesiastical or lay person or body corporate, except such matters and things as are herein specially provided for, and except tithes, rent and services, shall, where such right, profit or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and when such right, profit or benefit shall have been so taken and enjoyed as aforesaid, for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent Ways, Easements, Light, ^c. 139 or agreement expressly made or giveu for that purpose by hycoiwentor deed or writing (s. 1). ogreemmt. This section does not apply to a right claimed by a copy- holder on his own tenement. Hammer v. Chance, 11 Jur., N. S. 397. As to rights of common, see tit. " Estates," Chap. I., and Shelford, R. P. S. 38 et seq. Ways, Easements and Watercourses.^ No claim which in claims of rigiit may be lawfully made at the common law, by custom, pre- eLlment the""^ scription or grant, to any way or other easement, or to any periods to be i ii_ c ij.1- 'J J twenty years and watercourse, or the use ot any water, to be enjoyed or de- forty yeara. rived upon, over or from any land or water of the king, or being parcel of the Duchy of Lancaster or Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before men- tioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing (s. 2). The word easement, in this section, applies only to afiir- mative easements. Ante, p. 130; Harbidge v. Warwick, 3 Ex. 537; Murgatroyd v. Robinson, 7 E. & B. 391. LightJ] When the access and use of light to and for any claim to the use dwelling-house, workshop or other building shall have been ?or''twenty ye^Js actually enjoyed therewith for the full period of twenty indefeasible, years without interruption, the right thereto shall be deemed have been by absolute and indefeasible, any local usage or custom to the consent. contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement, expressly made or giveu for that purpose by deed or writing (s. 3). Periods, how calculated.^ Each of the periods of years Next before suit. mentioned in the respective sections shall be deemed to be the period next before some suit or action, wherein the claim or matter to which such period may relate shall have been or shall be brought in question, and nothing is to be deemed an interruption unless acquiesced in for a year after the 140 Easements — Time of Enjoyment. party interrupted litid notice of it and of the party making or authorizing it (s. 4). Allegation of Right — Presumption from Enjoyment.^ In actions and pleadings a general allegation of right, which was sufficient before the act is so still, and where before the act it was necessary to allege an immemorial right, it is now sufficient to allege enjoyment as of right (s. 5), but this is not necessary in the case of right to light. See post, p. 141. No presumption is to be made upon proof of enjoyment for less than the statutory period (s. 6). In cases of in- fancy, &c. Action pending. Claims made inde- feasible. What time to be excluded in com- putiDg the term of forty years ap- pointed by tliis act. Subsisting life interests. Word " conve- nient" Statute does not supersede common law. Time excluded from Computation.] The time is not to to be computed during which any person otherwise capable of resisting the claim shall be an infant, idiot, insane, feme covert or tenant for life, or during which any action, &c. shall have been pending and diligently prosecuted until abated by death, except where the claim is made indefea- sible by the act (s. 7), as it is in the case of the enjoyment of light for twenty years, and in the case of the enjoyment of other easements mentioned in sect. 2 for forty years. See Clayton v. Corby, 2 Q. B. 813; Pye v. Mumfo'rd, 11 Q. B. 666. It is provided, however, that when any land or water upon, over or from which any such way or other convenient watercourse or use of water shall have been or shall be enjoyed or derived, hath been or shall be held under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoy- ment of any such way or other matter as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or sooner determination of such term be resisted by any person entitled to any reversion expectant on the deter- mination thereof (s. 8). See Bright v. Walker, 1 C, M. & R. 219; Wright v. Williams, 1 M. & W. ,77. But this sec- tion does not apply to the computation of the term of twenty years. Palk v. Skinner, 18Q. B. 568. See as to this case a valuable note in Gale on Easements, 4th ed., p. 182, n. {d). The word "convenient" in this section is said (by Parke, B.) to be a mistake for easement ( Wright v. Williams, 1 M. & W. 77), and Mr. Gale would read the word as convenience, which, in old books, is synonymous with easement (Ease- ments, p. 169); the eflfect being that sect. 8 applies to such easements and rights as are mentioned in sect. 2. The statute does not supersede the common law; therefore if a person has a prescriptive right at common law, he may Enjoyment under Sections 2 and 3. Hi still rely on tliat right where circumstances render it neces- sary to do so. See Onley v. Gardiner, 4 M. & W. 496 ; Richards v. Fry, 7 A. & E. 698; Lowe v. Carpenter, 6 Ex. 831. Enjoyment under Section 2.] The claim is liable to be Enjoyment under defeated as before the act, by showing that the enjoyment "<=™'=^- was not as of right, for instance, that it was by stealth or under licence or permission {Bright v. Walker, 1 C, M. & R. 211 ; see Holford v. Hankinson, 5 Q. B. 584; Mon. Can. Co. V. Harford, 1 C, M. & R. 614 ; Tickle v. Brown, 4 A. & E. 369; Gaved v. Martyn, 19 C. B., N. S. 732), or that it was not one which could be lawfully made by custom, prescription or grant. Clayton v. Corby, 6 Q. B. 415 ; Att.-Gen. v. Matthias, 4 K. & J. 579. Where the en- joyment has commenced by permission, it is a question of fact whether it has continued by permission {Gaved v. Martyn, supra), though after an enjoyment of forty years it would be necessary, in order to defeat the claim, to show that the enjoyment was under some deed or writing (s. 2). See Tickle v. Brown, 4 A. & E. 369. As to the distinction between a licence which is revocable and a grant, see Shel- ford, R. P. S. 59 et seq., and the cases there cited. The right claimed must not exceed the actual enjoyment or user {Moore v. Webb, 1 C. B., N. S. 676) ; and there must be unity of possca- user as of right for the statutory period against all persons. *'°"- Winship V. Hudspeth, 10 Ex. 5 ; see Gale, 140, n. {m). Unity of possession during all or part of the period during which the user of the easement is alleged will disprove the claim. Ante, p. 135 ; Onley v. Gardiner, 4 M. & W. 496 ; Clayton v. Corby, 2 Q. B. 813 ; Battishill v. Reed, 18 C. B. 696. A tenant or one of two tenants holding under the Tenant against same landlord cannot by user acquire an easement as against i™'*'""!- the landlord. See Daniel v. Anderson, 31 L. J.. Ch., N. S. 610 ; Gayford v. Moffatt, L. R., 4 Ch. 133. Enjoyment under Section 3.] The difference between Need not be by sections 2 and 3 is marked. The easements mentioned in '^^^^ claiming the former must have been actually enjoyed by a person ''claiming right" (see Flight v. Thomas, 11 A. & E. 695) ; but these words are not contained in the latter sec- tion, and the actual enjoyment for the statutory period gives an indefeasible right, unless there has been consent by deed or writing. See Mayor of London v. Pewterers' Co., 2 M. & R. 409. Moreover, it is not necessary (under s. 5) to allege the enjoyment of light as of light. Truscott v. Merchant Taylors' Co., 11 Ex. 855; Frewen v. Phillips, 142 Easements — Interruption of Enjoyment. Custom of London. Interruption for one year. Licence or per- mission. Enjoyment as of an easement. By lessees. 11 C. B., N. S. 449; Simper v. Foley, 2 J. & H. 555. Nor, Id order to acquire the right, is it necessary that the house or building should be occupied if fit for occupation. Courtauld v. Legh, L. R., 4 Ex. 126. The local custom mentioned in this section has reference to the custom of the city of London, whicli was to build on the ancient foundations of a house against even the ancient lights of an adjoining house. Truscott v. March. Taylors' Co., 11 Ex. 855 ; Cooper v. Hubbuck, 12 C. B., N. S. 456. As the interruption mentioned in sect. 4 must be for a whole year, enjoyment for upwards of nineteen years confers the indefeasible right, though there may be an interruption acquiesced in for the remainder of the year. Flight v. Thomas, 8 CI. & Fin. 231 ; Eaton v. Swansea W. Co., 17 Q. B. 267. Enjoyment, though under licence, if by parol only for the statutory period of twenty years, would seem sufficient to confer an indefeasible right, for the statute requires that the licence or agreement to defeat the right should be by deed or writing (see Gale, Easements, 158, n. («■)), unlike, therefore, the easements mentioned in sect. 2, which must be enjoyed by a person claiming right. See Tickle V. Brown, 4 A. & E. 369. Unity of possession for different estates does not extinguish the easement. Simper V. Foley, 2 J. & H. 555. As to payment of rent for the use of lights, see Plasterers' Co. v. Parish Clerks' Co., 6 Ex. 660. The right must be enjoyed as an easement. If the owner of a bouse have lights overlooking land of whicb he is a tenant, there is no dominant and no servient tenement, and enjoyment for twenty years will not confer the right {Harbidge v. Warwick, 3 Ex. 552) ; though, as a general rule, the right acquired against the owner of a leasehold in- terest is acquired against the owner of the reversion {Simper V. Foley, 2 J. & II. 555), unless in the case of lessees who hold under the same landlord, for a tenant cannot acquire a prescriptive right against his own landlord {Gayford v. Moffatt, L. R., 4 Ch. 133), though one lessee may acquire the right as against another lessee, both holding under the same landlord. Frewen v. Phillips, 11 C. B., N. S. 449. Enjoyment down to action or suit. Interruption of Enjoyment.^ The enjoyment of the ease- ment must be down to the suit or action mentioned in the 4th section. Parker v. Mitchell, 11 A. & E. 788 ; Flight V. Thomas, 8 CI. & Fin. 242. And an enjoyment next before any action or suit in which the claim is brought in question confers the right, which may be set up in any sub- sequent action or suit. Cooper v. Hubbuck, 12 C. B., N. S. 456, Williams, J., diss. It is not necessary to prove it in Remedies in Equity. 143 every year of the period, but it should be showa in the first and last years of it. Bailey v. Appleyard, 8 A. & E. 161 ; Carr v. Foster, 3 Q. B. 581 ; see however Lowe v. Car- penter, 6 Ex. 825. The interruption mentioned in sect. 4 what is au inter- must be an actual discontinuance of enjoyment by reason "^"P"""- of some obstruction acquiesced in for a year. Plasterers' Co. V. Parish Clerks' Co., 6 Ex. 630. It must be an ob- struction, not a cessation, of user by a person of his own accord. Carr v. Foster, 3 Q. B. 587. Whether the inter- ruption has or has not been acquiesced in for a year, is a question of fact to be decided at law by a jury. Bennison V. Cartwright, 5 B. & S. 1 . A reversioner or landlord may sue in respect of his re- '^^° """y ■™>'- version where the interference is of a permanent nature, or, Keversioner. as it may perhaps be stated, where the act is calculated to abridge or interfere with the estate of the reversioner (see ^er WiUes, J., Bell v. Midland R. Co., 10 C. B., N. S. 287; Met. Assn., ^c. v. Fetch, 5 C. B., N. S. 504; and the cases collected and commented on, Gale, Easements, 587, n.); but if he do not sue, the uninterrupted user, for the period which is made a statutory bar, will be a bar to him, subject to sect. 8 where that applies. Ante, p. 140. Remedies in Equity. '\ The usual remedy in equity for injunction, an interference with an easement is by an injunction. Many examples of the application of this remedy will be found in the following pages. Courts of equity have now also power to award damages where it has jurisdiction to grant injunc- tions against the commission or continuance of any wrongful act. 21 & 22 Vict. c. 27, s. 2. Ante, p. 96. CHAPTEE IV. OF PARTICULAR EASEMENTS. Sec. 1. — Right of Way. Limited by User .. .. 144 I Abandonment .. .. 144 Temporary use of Nem Way 144 | Modern Improvements . . 144 In the preceding chapter the effect of prescription and of the Prescription Acts has been stated. In this chapter it is pro- 144 Easements — Right of Way. night limited by user. posed shortly to consider the most important kinds of ease- ments and rights in the nature of easements and the various incidents affecting them. Eights of way are of different kinds, and one species of way, e. g. a carriage way, does not necessarily include another, though of an inferior description, e. g. a drift or cattle way. Ballard v. Dyson, 1 Taun. 283; see Higham V. Rabett, 4 Bing. N. C. 622. And user for some purposes does not prove user for other purposes. Cowling v. Hig- ginson, 4 M. & W. 245. The extent of the right is a question of fact, ib. Thus a right of way to carry coal only will be restricted to coal {Iveson v. Moore, 1 Salk. 15), and a right to carry all articles except coal will not be extended to coal. Marquis Stafford v. Coyney, 7 B. & C. 257; see Brunton v. Hall, 1 Q. B. 792. A claim of right of way to a place is not supported by proof of a right of way which falls somewhat short of it. Wright v. Rattray, 1 East, 377. Temporary use of The temporary use of a new way for convenience and non- new w . -asev of the old way, though for upwards of twenty years, is not an abandonment of the latter. Ward v. Ward, 7 Exch. 839; see Lovell v. Smith, 3 C. B., N. S. 120. And a right of way is not necessarily lost, even by disuse for a consider- able period, where no adverse right is gained. Ward v. Ward, 7 Ex. 838; Cook v. Mayor of Bath, L. E., 6 Eq. 177. But a permanent obstruction acquiesced in for twenty years will be evidence of an abandonment. Bower v. Hill, 1 B. N. C. 555. A right of way may, in general, be used with the advantage of modern improvements. Thus, under a right of a sufficient wayleave for coals, a way may be made for carrying them though of a kind not in use when the right was granted. Senhouse v. Christian, 1 T. E. 560; Dand v. Kingscote, 6 M. & W. 174. A grantee of a right to make a way over the land of another is not necessarily bound to make the shortest way, if a more circuitous one is fairly more expedient, as where, by means of it, a lock is Alteration In user, avoided. Richards v. Richards, Johns. 255. There must be no material alteration in the user of a way. Thus a way to a wood-house cannot be used as a way to a dwelling- house. Allan V. Gomme, 11 A. & E. 759; see Henning v. Burnet, 8 Ex. 187, 194, judgment of Parke, B. Abandonment, Modem improve- ments. Right to Light. 145 Sec. 2. — Right to Light, Air and Prospect. lAght 145 Nature of Right .. 145 Disuser,. ., .. 145 New Use .. . . 145 jVcw Windows.. .. 145 Acquiescence .. ..146 Obstruction .. ..146 Amount of Damage . . 146 lAght — continued. Remedij — Injunction . . 147 Olistruction complete . . 147 Public Companies .. 147 Prospect— Air .. .. 147 Not the subject of Pre- scription ,. ..147 Not an Easement . . 147 Light.'] There is no common law right to the uninterrupted iiature of right, access of light, and unless such right has been gained under the statute or by grant, any one may build on his own land, though his neighbour's light may thereby be interfered with. The right, however, will be lost if there has been no user Disuser. for a long time ; for instance, if the window has been bricked up for twenty years (Lawrence v. Obee, 3 Camp. 514), or for a less period, where an intention to abandon the right is clearly shown. Moore v. Rawson, 3 B. & C. 332 ; Stokoe T. Singers, 8 E. & B. 31 ; cons. Taplin v. Jones, 11 H. L. C. 290 ; and comp. Crossley v. Lightowler, L. R., 3 Eq. 279 ; 2 Ch. 482 ; Cook Y. Mayor, ^c. of Bath, L. R., 6 Eq. 177. The right is not lost merely by the owner of the dominant tenement slightly obscuring his own lights. Arcedechne v. Kelh, 2 GifF. 983 ; Staight v. Burn, L. R., 5 Ch. 163. He New use not is not, however, entitled to use an ancient light in a new *''°'"^- way ; for instance, a malt-house window as a dwelling-house window. Martin v. Goble, 1 Camp. 320 ; Lanfranchi v. Mackenzie, L. R., 4 Eq. 421 — 429. An ancient window Newwinaowsin may be replaced by one of the same size, which will have place of ancient the same privilege as the old one (see Luttrel's Case, 4 Rep. 86 ; Hutchinson v. Copestake, 9 C. B., N. S. 863), but the dominant owner must not exceed the old limits Must not exceed {Turner v. Spooner, 1 Dr. & Sm. 467; Curriers' Co. v. itoits of ow ones. Corbett, 2 Dr. & Sm. 35 ; and see Martin v. Headon, L. R., 2 Eq. 425), otherwise the occupier of the servient tenement may obstruct such parts of the new window or windows as are not privileged, but he must be careful in so doing not to obstruct (a matter in general of great difficulty) the privi- leged portion. Taplin v. Jones, 1,1 H. L. C. 290 ; over- ruling on this point Renshaw v. Bean, 18 Q. B. 112; Hutchinson v. Copestake, 8 C. B., N. S. 102 ; and Davies V. Marshall, 1 Dr. & S. 557 ; see Weatherley v. Ross, 1 H. & M. 349; Wilson v. Townend, 1 Dr. & S. 324; Binckes v. Pash, 11 C. B., N. S. 324 ; Cooper v. Hubbuck, 30 Bea. 160. The doctrine of Taplin v. Jones applies to the equitable as well as to the legal remedy. Staight v. 146 Easements — Right to Light. Acquiescence. Nature of obstruc- tiun. Amount of da- mage sustained. Must be material. Burn, L. R., 5 Ch. 163 ; overruling Heath v. Buchnell, L. R., 8 Eq. 1. The owner of the servient tenement will be bound by acquiescence in the alteration of ancient lights. Catching v. Basset, 32 Bea. 101 ; Johnson v. Wyatt, 2 D., J. & S. 18. A landlord cannot, nor can any one claiming under him, obstruct new lights erected pursuant to an agree- ment with him by his tenant. Davies v. Marshall, 1 Dr. & S. 537. With regard to the important question, what amount of damage or injury must be sustained to give a right of action or suit, it was observed by V.-C. Wood, in Dent v. Auction Mart Co. (L. R., 2 Eq. 245), that the doctrine established in Att.-Gen. v. Nicholl (16 Ves. 343), and recognized by Lord Westbury, in Jackson v. D. of Newcastle (10 Jur., N. S. 688, 690), was this, that " there are many obvious cases of new buildings darkening those opposite to them, but not in such a degree that an injunction could be main- tained or an action upon the case, which however might be maintained in many cases which would not support an in- junction." V.-C. Wood further observed, adopting the ruling of Best, C. J., in Back v. Stacey (2 C. & P. 465), "that at law, in order to give a right of action and sustain the issue, there must be a substantial privation of light, suffi- cient to render the occupation of the house uncomfortable, and [or] to prevent the plaintiff from carrying on his accus- tomed business on the premises as beneficially as he had formerly done," substituting or for and, the word used by the Chief Justice. L. R., 2 Eq. 245. The Vice-Chan- cellor added, that as to the relief in equity " where sub- stantial damages would be given at law as distinguished from some small sums of 51., lOZ. or 20Z., the Court would interfere." lb. 247. In Robson v. Whittingham (L. R., 1 Ch. 442), also, it was held, that there must be a material (see judgment of Bruce, L. J.) amount of damage to support a bill for an injunction in such cases. See also Martin v. Headon, L. R., 2 Eq. 425, 434 ; Lyon v. Dilli- more, 14 W. R. 511; Webb v. Hunt, ib. 725 ; Stokes v. City Off. Co., 2 H. & M. 650 ; Durrell v. Pritchard, L. R., 1 Ch. 244 ; comp. Clarke v. Clark, ib. 16 ; Beadel v. Perry, L. R., 3 Eq. 467. The owner of a building con- taining ancient lights is entitled to all the light he enjoyed previous to the interruption complained of, without any material diminution of it. Yates v. Jack, L. R., 1 Ch. 295. There is no distinction between the rights in town and in the country. Martin v. Headon, ib. 425 ; Dent v. Auction Mart Co., L. R., 2 Eq. 288. The dictum contra in Clarke v. Clark (L. R., 1 Ch. 16) cannot, it would seem, be sup- Right to Prospect— Air. 147 ported. Cons, however Robson v. Whittingham, ih. 442. As to an actual inspection by the judge, see Jackson v. D. of Newcastle, 10 Jur., N. S. 688. The Metropolitan Building Act, 18 & 19 Vict. c. 122, s. 83, authorizing the erection of certain buildings, all damage being made good to the adjoining premises, does not authorize the obstruction of ancient lights. Crofts v. Haldane, L. E., 2 Q. B. 194. The remedy in equity is by injunction, and the Court has Remedy. now jurisdiction to decide all questions of fact and award injuncUoQ. damages {ante, p. 96-97). The Court will sometimes direct an inquiry as to the amount of damage sustained in lieu of granting an injunction. Isenberg v. East India, S)-c. Co., 10 Jur., N. S. 221 ; Curriers' Co. v. Corbett, 2 Dr. & S. 355; Senior v. Pawson, L. R., 3 Eq. 330. Although the obstruction may be complete before the bill obstruction com- is filed, that is not of itself sufficient to disentitle the plaintiff '"^''=- to a mandatory injunction; but in such cases, to induce the Court to grant it, the damage must be very serious {Durrell V. Pritchard, L. R., 1 Ch. 244; see Curriers' Co. v. Corbett, sup.), and the party applying for it must show that he will sustain substantial damage. See Smith v. Owen, 14 W. R. 442 ; Robson v. Whittingham, L. R., 1 Ch. 442 ; consider Yates V. Jack and the cases ante, p. 146. The defendant is at liberty to propose ascheme with reference to the means of obviating the obstruction or otherwise. Stokes v. Citi/ Off. Co., 2 H. & N. 650. It is no objection to the relief being granted, that from accidental clearances in the neigh- bourhood the plaintiflp has acquired more light than he has lost by the erection of the defendant's buildings. Dyers' Co. V. King, L. R., 9 Eq. 438. An easement is an interest in land, and if it be injuriously obstruction by affected in consequence of the acts of a company or authority aoro?pa?iiameiit. acting under the provisions of an act of parliament, so that but for the act an action would lie for the injury occasioned, a right to compensation arises under the Lands Clauses Con- solidation Act, 8 & 9 Vict. c. 18. If, for instance, the access of light has been lessened, the party thereby affected is entitled to compensation, though, from the accidental in- crease of value of property in the neighbourhood, the sale- able value of it may not be diminished. Eagle v. Charing Cross R. Co., L. R., 2 C. P. 638; see Beckett v. Mid. R. Co., L. R., 3 C. P. 82. Prospect — Air.] A right to a particular prospect cannot Not the subject be acquired by prescription, but only by grant or agreement "oraT^ement. by the owner of the servient tenement that h^will do nothing to obstruct it. Att.-Gen. v. Doughty, 2 Yes. sen. 453; L 2 148 Easements — Rights in respect of Water. Squires v. Campbell, 1 M. & C. 459; see Aldred's case, 9 Eep. 586; Tulk v. Moxhay, 2 Ph. 774; Butt v. Imp. Gas Co., L. E., 2 Ch. 158 — 161. And if a person make a repre- sentation that a particular view cannot be obstructed by building, upon the faith of which representation a purchase is made or lease taken, he will not himself be allowed to do any act contrary to the representation. Piggott v. Stratton, 1 D., F. & J. 33. A right to air and wind cannot be ac- quired by prescription or presumption of grant arising from twenty years' enjoyment, and such a right is not an ease- ment within the 2 & 3 Will. 4, c. 71, s. 2. Webb v. Bird, 13 C. B., N. S. 841 ; see, however, the judgment of Black- burn, J., in that case as to the acquisition of a common law right to air through a window, and the j udgment of Wood, V.-C, in Dent v. Auction Mart Co., L. R., 2 Eq. 2.52. Sec. 3. — Righ Where not an Easement . . Isjwre natures .. Right of Interference is an Easement Wot to be exercised to injury of others Stream dividing Lands of different Owners.. TJndergroiind Stream- . . Wells, Ponds, ^'c. Might of Drainage Surface Water its in respect of Water. 148 Where Rights are Easements 150 148 Easements — Water- courses .. ..150 148 Right to divert Water . 150 Right to discharge 148 Water .. ..150 Artificial Watercourse 150 149 Water flaming from 149 Loch or Canal . . 151 149 Alteration in mode of 150 Enjoyment .. .. 151 150 Natural Interruption. . 151 Right to flowing ■water does not rest on prescrip- tion. Is jure naturce. Right of inter- ference. Not to he exer- cised to prejudice of other owners. Where the Rights are not Easements.^ The right to use water (in a reasonable and proper manner) flowing in a natural stream is enjoyed jure natures by the owners of the land through which it flows, and does not depend upon prescription (Wood v. Waud, 3 Ex. 748; Chasemore v. Richards, 7 H. L. C. 349; Sampson v. Hoddinott, 1 C. B., N. S. 590); and to enforce the right it is unnecessary to show special damage in the infringement of it. lb.; Minor V. Gilmour, 12 Moo. P. C. 156. As to rights granted by a riparian proprietor to a non-riparian proprietor, see Ji^iittall V. Bracewell, L. R., 2 Ex. 1. But this right to the use of flowing water does not extend to the user of the water to the prejudice of the rights of the riparian owners of the land above or, below, as by unreasonably diminishing or diverting it, (see the judgment. Minor v. Gilmour, sup.; Rights in respect of Ff'dter. 149 Emhrey v. Owen, 6 Ex. 355 ; Norbury v. Kitchin, 9 Jur., N. S. 132; Hodgkinson v. Ennor, 4 B. & S. 229; Elwell V. Crowther, 31 Bea. 163), unless in such cases the user is by virtue of some prescriptive right or agreement, or local custom. Wright v. Howard, 1 S. & S. 190; Hall v. Lund, 1 H. & C. 67fi. Where the stream divides the lands of two stream dividing conterminous proprietors, each is prima facie the owner of owners.' '""'"'''"' the bed of the stream ad medium filum aquce, but neither can use it in such a way as to interfere with the natural flow of the stream {Bickett v. Morris, L. R., 1 H. L. Sc. 47), even in the case of a tidal navigable river. Att.-Gen. V. E. of Lonsdale, L. R., 7 Eq. 377. In the case of a tidal river the soil in the channel is in the crown. Gann v. Whitstable Fishers, 11 H. L. C. 207. There may exist an interest in a river without any property in the bed or soil ; for instance, where owners of lauds adjoining, a river have watering places for cattle, and this interest is sufficient to give a right of action for fouling the water. Oldaker v. Hunt, 6 D., M. & G. 376. The principle of the right to the underground use of flowing water by a riparian proprietor applies, though '''^'*™- the stream may for part of its course flow underground {Hodgkinson v. Ennor, 4 B. & S. 229) ; but it must be a clear and defined stream throughout : the principle does not apply to unseen underground water or springs, though flow- ing on towards a stream ; therefore the owner of land in which there is a well fed from such sources has no right, except by grant, prescription or agreement, to prevent its diversion or abstraction by the act of the owner of other land, for instance, in digging a well in it or the like. Acton V. Blundell, 12 M. & W. 324; Chasemore v. Richards, 7 H. L. C. 349; Ennor v. Barwell, 1 D., F. & J. 529. The case oi Dickinson v. Gd. June. Can. Co. (7 Ex. 282) is con- tra, but on this point is overruled. Chasemore v. Richards, sup. ; see Arkwright v. Gell, 5 M. & W. 203 ; Greatrex v. Hayward, 8 Ex. 291. As to the efiect of a grant, see Pop- plewell V. Hodkinson, L-. R., 4 Ex. 248. Upon this prin- weiis, ponds and ciple the owner of land has no right to prevent an abstraction "^i^™! '^ites. of water in a state of percolation, and which but for the abstraction would flow on to his land {Reg. v. Metrop. Bd. of Works, 3 B. & S. 710); and the rule applies, although the efiect of the withdrawal of the water is to cause the adjacent soil to subside. Popplewell v. Hodkinson, L. R., 4 Ex. 248. But the vendor of land with a stream running through it, which is fed from a spring in the adjoining land of the vendor, cannot, nor can any one claiming under him, divert the stream. Canham v. Fisk, 2 C. & J. 126. And this principle applies to underground water in the purchased 150 Where Rights are Easements. land, where there is an express grant of all streams. White- head V. Parks, 2 H. & N. 870. Eight ot drainage. A person may drain his land for agricultural purposes in order to get rid of the water, being casual, and its flow fol- lowing no regular or definite course, and a neighbouring pro- prietor cannot complain that he is thereby deprived of such water, which otherwise would have come to his land. Raw- stron V. Taylor, 11 Ex. 369. So the owner of land may appropriate surface water which flows over it in no definite channel, although the water is thereby prevented from reach- ing a watercourse which it previously supplied. Broadbent V. Ramsbotham, 11 Ex. 602. But it has been held, that the owner of land in which a spring rises, and from which it flows in a defined channel, cannot divert the water at the springhead, and thus interrupt the course of the stream. Dudden v. Clutton Union, 1 H. & N. 627. Right to appro printe surface water. Easements — Watercourses. Rights to divert ■water. To discharge water. Artiticial water- course. Where Rights are JEasements.] In most of the preceding cases no question arose as to the right in respect of water being an easement, or depending upon prescription, nor as to a particular stream being or not being a watercourse within the meaning of the 2 & 3 Will. 4, c. 71. But such questions sometimes arise, though they have been less fre- quent than those depending upon rights in respect of ordi- nary streams or rivers, which have already been adverted to. As a general rule, the right to interfere with the rights of others _;'M?'e natures {ante), in respect of flowing water, de- pends upon the same principle as ordinary easements ; for instance, a right of way, which is a right to interfere with the exclusive enjoyment by another of his own land. Thus, a right to an unreasonable use of water to the prejudice of others prirna facie equally entitled to it (see Sampson v. Hoddinott,\ C. B., N. S. 611; Minor Y.Gilmour, 12 Moo. P. C. 156; and other cases, ante, p. 148), is an easement or in the nature of an easement. So a right to divert water from neighbouring land into an artiflcial channel for the use of the dominant tenement. Beeston v. Weate, 5 E. & B. 986. So to discharge polluted water on neighbouring land. Wright v. Williams, 1 M. & W. 77; see Chadwick v. Mars- den, L. R., 2 Ex. 289. As to the right to pollute streams or rivers, see Moore v. Webb, 1 C. B., N. S. 673; Carlyon V. Lovering, 1 H. & N. 784 ; Stockport Waterworks Co. v. Potter, 7 H. & N. 160; Murgatroyd y. Robinson, 7 E. & B. 391; Goldsmid v. Tunbridge Wells, Sfc. Commrs., L. R., 1 Ch. 349; Att.-Gen. v. Leeds Corporation, L. B., 5 Ch. 583. It would seem that although a watercourse may have been originally artiflcial, yet if enjoyed by numerous persons for Right to support for Land or Buildings. 151 such a period as to give a prescriptive right, they will ac- quire the same lights in respect of it as riparian proprietors to an ordinary natural stream. Sutcliffe v. Booth, 9 Jur., N. S. 1037; see Ivimey v. Stocker, L. E., 1 Ch.'396. But this principle does not apply where an owner, for his own convenience, drains his land or other parts of his property by creating an artificial channel to can-y off superfluous water, whereby it flows over the land of another. In such a case the latter has no right to the continued discharge of the water, though he may have derived benefit from it for upwards of twenty years. Arkwright v. Gell, 5 M. & W. 203; Greatrex v. Hayward, 8 Ex. 291; Wood v. Waud, 3 Ex. 748. Water passing from the opening of a loclj or water flowing canal is not a watercourse, within the 2 & 3 Will. 4, c. 71, s. 2. ^^i."""' °' Staff. Can. Co. v. Birm. Can. Co., L. E., 1 H. L. 254. A Alteration in slight alteration in the mode of enjoyment not being detri- "°^* °* enjoy- mental to other persons interested in the stream will not affect the right (ffall v. Swiff, 4 B. N. C. 381; Hale v. Oldroyd, 14 M. & W. 789); neither will a total interruption Natural inter- of the user even for some years, if occasioned by natural "^"^ """■ causes; for instance, the excessive dryness of seasons. Hall V. Swift, sup. Sec. 4. — Right to Support for Land or Buildings. Right to Support for Land 151 Not for Buildings upon it.. 152 Unless having Support for Twenty Years .. .. 152 Land with Buildings on it . 152 Several Souses built by one Owner . . . . . . 152 Severance of Rights to Sur- face and Mines .. . . 152 Land taken by Companies . 153 The owner of land has a right to support for it from the Right to support land of his next neighbour, whether the support be lateral *°' '™*' or underground, and this is of common right, and not a mere easement to be gained in course of time or by grant. There- fore the owners of underground minerals cannot work them without leaving adequate support for the surface land or for minerals vested in the owner of the adjoining land. Humphries v. Brogden, 12 Q. B. 739 ; Backhouse v. Bo- nomi, 9 H. L. C. 503; Hunt v. Peake, Johns. 705; Roberts V. Haines, 7 E. & B. 625 ; see Richards v. Harper, L. E., 1 Ex. 169. But the owner of land has no right at common law to the support of subterranean water for his land. Popplewell V. Hodhinson, L. R., 4 Ex. 248. The right to support, where it exists, is not an absolute right, and no 152 Easements — Eight to support for Land or Buildings. But not for build- ings upon it. Xu right to sup- port for buildings 9s such ; unless having support for twenty years ; or there is an implied grant. Land (though with buildings on it) entitled to support of ad- joining land. Several houses built by one owner. Severance of rights to surface and mines. claim cau be made for the infringement of it where there is no appreciable damage. Smith v. Thackerah, L. R., 1 C. P. 564. Nor does the right extend as a rule to the buildings upon it, and no action lies against the owner of the adjoining land or buildings upon it if by reason of his removal of such land or buildings the buildings of his neighbours are injured or destroyed. Peyton v. Mayor of London, 9 B. & C. 72.5; Wyatt V. Harrison, 3 B. & Ad. 871 ; Gayford v. Nicholls, 9 Ex. 702. But such removal, though it may be without notice {Chadwich v. Trower, 6 B. N. C. 1; see Massey v. Goider, 4 C. & P. 161) must not be negligently or impro- perly effected. Dodd v. Holme, 1 A. & E. 493 ; cons. Chadwick v. Trower, sup. It would seem that a building is entitled to the support of the adjoining land if it has had it for twenty years. Humphries v. Brogden, 12 Q. B. 739; Backhouse v. Bonomi, 9 H. L. C. 503 ; Hunt v. Peake, Johns. 705 ; Browne v. Robins, 4 H. & N. 186; cons. Solomon v. Vintners' Co., 4 H. & N. 585 ; Murchie v. Black, 19 C. B., N. S. 190. And if the owner of land sell part for the express purpose of being built upon, the pur- chaser is entitled to support for his buildings from the land which is retained by the vendor. N. E. R. Co. v. Elliott, 10 H. L. C. 333; see particularly the judgment of V.-C. Wood, in the Court below, 1 J. & H. 145. The right of land to support from the adjoining land is, however, not affected merely because there are buildings on the former; and the owner of the latter, who in digging or removing it weakens that support, will be liable if there be any subsidence in consequence, provided the weight of the buildings did not contribute to it. Brown v. Robins, 4 H. & N. 186 ; Stroyan v. Knowles, 6 H. & N. 454 ; Hunt v. Peake, Johns. 705 ; see Bibby v. Carter, 3 H. & N. 153 ; Popplewell V. Hodkinson, L. P., 4 Ex. 248. Where several houses are built together by one owner, there is an implied reservation of the right of support in respect of such houses as between the owner and his vendees or lessees and as between the latter inter se. Richards v. Rose, 9 Ex. 218; Dug dale v. Robertson, 3 K. & J. 695; Suffield V. Brow7i, 10 Jur., N. S. Ill, 114. But not, it would seem, unless so built. Peyton v. Mayor of London, 9 B. & C. 725; Solomon v. Vintners' Co., 4 H. & N. 585. Where there is a grant of mines, the grantor retaining the surface land, or a grant of the surface land, the grantor retaining the mines, the person entitled to the surface-ground is also presumptively entitled to the underground support for it, and the mines must not be worked so as to weaken or endanger this support {Humphries v. Brogden, 15 Q. B. Easements in respect of Nuisances. 153 739 ; Harris v. By ding, 5 M. & W. 60; Dug dale v. Robert- son, 3 K. & J. 695; Smart v. Morton, 5 E. & B. 30), un- less a right has been acquired either by an award or by con- tract to work the mines irrespective of the consequences as affecting the surface. Rowbotham v. Wilson, 8 H. L. C. 348; fVilliams v. Bagnall, 12 Jur., N. S. 987. It would seem, however, that there cannot be a customary right for such a purpose. Hilton v. E. Granville, 5 Q. B. 701; Blackett V. Bradley, 1 B. & S. 940; Wakefield y. D. of Buccleuch, L. E., 4 Eq. 613. As to the rights of parties where the surface land has been Lana taken by taken compulsorily by a railway or other company or autho- ™niS^' *'"' ™"*' rity, see Stourbridge, Sfc. Co. v. E. Ward, 7 Jur., N. S. 329; Cal. R. Co. V. Sprot, 2 Macq. H. L. C. 449; Same v. Ld. Belhaven, 3 ib. 56 ; Reg. v. Aire ^ Cal. Nav. Co., 8 Jur., N. S. 1 1 5 ; Elliott V. N. E. R. Co., 10 H. L. C. 356 ; G. W. Co. V. Bennett, L. E., 2 H. L. 27. Sec. 5. — Easements in respect of Nuisances. Twenty Tears' User .. 163 Alteration in User . . .. 153 Rule where no Easement . . 153 JVuisance restrained wliere no Right .. . . . . 154 Acquiescence — Laches . . 155 There may be a right in the nature of an easement to trans- Twenty years' mit offensive smells, smoke, sounds, or the like, where such commitTnuf '° right has been exercised for twenty years, but not otherwise, sance. and it "will not affect the rights of the complaining party that he has come to the place where the nuisance was previously existing. Bliss y. Hall, A'&.^.CISZ; Carlyon y. Lover- ing, 1 H. & N. 797 ; Stockport Waterw. Co. v. Potter, 7 H. &N. 160; GoldsmidY. Tunbridge Wells Commissioners, L. E., 1 Ch. 349. Where the right exists it must not be considerably enlarged in the user of it {Crossley v. Light- owler, L. E., 2 Ch. 478), but may to a certain extent be Alteration in changed, as where the washings of rags used in the manu- "*'"'■ facture of paper were discharged into a stream, it was held that the washings of a new material used for the same manufacture might also be discharged, there being no in- crease in the pollution. Baxendale v. M'Murray, ib. 790. No prescriptive right can be gained to make a common nuisance prejudicial to every one, for this would be contrary to the common law. See Gale, Easements, 430, n. If there euIo where thero be no easement, the rule applicable between the owners of IS no easement. 154 Easements in respect of Nuisances. adjacent lands witk reference to their respective rights of using their property, is, that where the owner of land, without wilfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occa- sioned to his neighbour, he will not be liable in damages. But if he brings upon his land anything which would not naturally come upon it and which is in itself dangerous, and may become mischievous if not kept under proper control, though in so doing he may act without personal wilfulness or negligence, he will be liable in damages for any mischief thereby occasioned. Rylands v. Fletcher, L. R., 3 H. L. 330. The Court will not interfere quia timet in a case of alleged nuisance, but the actual existence of it must be proved. Att.-Gen. v. Mayor of Kingston, 11 Jur., N. S. 596. " An act of parliament will not be construed as autho- rizing a nuisance if it can be avoided" (Gale, 431, n.), where the cases are collected; and see Att.-Gen. v. Colney Hatch Asylum, L. E., 4 Ch. 146. Nuisance re- Nuisances which, if continued, would become easements, no right ''''™' or rights in the nature of easements, will be restrained by a Court of Equity upon principles analogous to those on which it acts in restraining an interference with easements. Thus, the Court will grant an injunction to restrain a nuisance by fouling water where the injury is of a serious and permanent nature {Goldsmid v. Tunbridge Wells Comrs., L. R., 1 Ch. 349, 354; Att.-Gen. v. Colney Hatch Asylum, L. R., 4 Ch. 146), or a nuisance occasioned by polluting the air; but not if the injury be merely occasional and slight {Cooke V. Forbes, L. R., 5 Eq. 166; see Crump v. Lambert, L. R., 3 Eq. 405); or a nuisance arising from fireworks, and other nuisances arising from public exhibitions and entertainments {Walker v. Brewster, L. R., 5 Eq. 25; Inchbald v. Robin- son, Same v. Barrington, L. R., 4 Ch. 388); or the nuisance of keeping water in an offensive state in canals { Att.-Gen. w. Proprs. Bradford Canal, L. R., 2 Eq. 71); or a nuisance arising from smoke, noise alone, or offensive vapours alone. Crump V. Lambert, L. R., 3 Eq. 409. In these and the like cases a Court of Equity will interfere by injunction, if sub- stantial damages would be recoverable at law in respect of the nuisance. lb. And where the evidence of the nuisance is satisfactory, the Court will not require the question to be tried before a jury. Inchbald v. Robinson, L. R., 4 Ch. 388. Nuisance of pubUc Although the nuisance may be of a public as well as a and private private nature, a bill may be filed by a person who has sustained special damage in consequence of it, to restrain it, without making the Attorney-General a party. Spencer v. nature. Easements in respect of Nuisances. 155 Lon. and Bir. E. Co., 8 Sim. 193; Soltau v. Be Held, 2 Sim., N. S. 133; see Att.-Gen. v. United Kingdom Elec. Tel. Co., 30 Bea. 217. The right to an injunction to restrain a nuisance, like the Acquiescence. right to an injunction against the obstruction of, or inter- ference with, an easement, may be lost by acquiescence in the nuisance (see Johnson v. Wyatt, 2 D., J. & S. 18), or laches. Williams v. E. Jersey, 1 Cr. & Ph. 91 ; Wood v. Laches. Sutcliffe, 2 Sim., N. S. 163 ; Bankart y. Houghton, 27 Bea. 425; Cooper v. Hubbuck, 30 Bea. 160; and comp. Imp. Gas Co. v. Broadbent, 7 H. L. C. 600; Turner v. Mirfield, 34 Bea. 390; Johnson v. Wyatt, 2 D., J. & S. 18; Att.-Gen. v. Proprs. Bradford Canal, L. E., 2 Eq. 71. In Att.-Gen. v. Leeds Corporation, L. R., 5 Ch. 583, by the Leeds Improvement Amendment Act, 1848, it was pro- vided, that the clauses of the Towns Improvement Clauses Act, 1847 (10 & 11 Vict. c. 34), as to making and maintain- ing public sewers and the drainage of houses, should be in- corporated with and form part of the act, " except so far as they or any of them are inconsistent with the provisions of this act, or are expressly varied or excepted by this act ;" and by s. 6 of the act, the corporation of Leeds were autho- rized to construct one or more trunk or other sewer or sewers, sufficiently capacious to receive the foul and drainage water and filth of the town, and to convey the same into the river Aire. It was held, that the power to drain into the river was controlled by the Towns Improvement Clauses Act, and that the corporation were not authorized by s. 6 of the local act to create a nuisance by draining into the river ; and that though the river was polluted before it received the drainage of Leeds, the landowners on the banks were entitled to re- strain the further pollution ; also, that though the sewer had been completed, and in operation sixteen years before pro- ceedings were taken, the Court would interfere at the suit of the landowners. ( 156 ) ELECTION. Nature of Election . . 156 Who bound to elect — contd. Person cannot talte un- Heir of Female Minor. . 161 der and against same Heir of Scotch Property Instrument . . 156 Heir in Tail . . 162 Gift of Testator's Pro- Disposition must be by perty to A. and A.'s valid Will .. 162 Property to B. 157 Infants — Lunatics . . 162 Doctrine applies to Set- Several entitled 162 tlements and Wills ■ . 157 Applies to Property of Under Appointments in every hind .. 157 pursuance of Powers 162 Forfeiture or Compen- Where arises . . 162 sation 157 Testator must give Pro- Testator having partial perty of his oron 162 Interest only 158 Object of Two Powers What necessary to 158 excluded under One . 163 Devise of Estate subject Absolute Appointment to Incumbrances 158 coupled with Recom- Gift of Testator's Pro- mendation to Share . . 163 perty and A.'s to A. . 158 Forfeiture 163 Raised by something in Qualified Appointment 163 the Insto-ument 159 Erroneous recital 159 When Election to be made . . 164 Recommendation in Delay — Xnomledge of Will 159 Facts — Mistake 164 Gifts in satisfaction of Can only be inferred Claims 159 from unequivocal Valuable and Burden- Facts . . 164 some Property given Presumption of 164 to one Legatee 160 Acts indicating Elec- tion .. 164 Who bound to elect 160 Taking Income — Re- Widoro .. 160 citals .. 164 Married Woman 160 Presumption of Dis- Heir 161 claimer 165 What election ia. Person cannot take under and against same instrument. Nature, of Election.^ In some cases equity will compel a person to elect between two rights or interests where one of them has been acquired as a gift under a will or voluntary deed, and the intention of the testator or grantor is clear that the donee shall not enjoy both. In other words, a person can- not take under and against the same instrument, but must elect between them. Dillon v. Parker, 1 Sw. 359; ib. 381, n. (a); 394, n. (b) ; Schroder v. Schroder, 1 Kay, 578 ; Stephens V. Stephens, 3 Drew. 697 — 701 ; Miller v. Thurgood, 33 settlements antt wills. Nature of Election. 157 Bea. 496; Box v. Barrett, L. E., 3 Eq. 244. Thus, if a Testator giving testator or grantor give property of his own to A., and pro- {"dTJanaT^^^ perty of A.'s to B., A. must elect either to part with his own property to b. property or to give up the bounty (see per Ld. Eldon, Broome v. Monck, 10 Ves. 609), or, as it may now perhaps be stated, to make compensation to B. The doctrine is not Rule applies to confined to wills, but embraces settlements and other disposi- tions. Green v. Green, 2 Mer. 86 ; Bacon v. Cosby, 4 Ue &. & Sm. 261. The rule applies to property of every kind and to interests fuie is of general of every description. Wilson v. Ld. J. Townshend, 2 Ves. wucation. jun. 697; Graves v. Forman, cited 3 Ves. 67; Webb v. Ld. Shaftesbury, 7 Ves. 480. For the doctrine to apply, the instrument must be effectual not only at the time it is made, but also at the time it is relied upon as raising a case of elec- tion. Thus, there is no election under the will of a married woman who survives her husband, but whose will as to part of the property comprised in it is valid only in the event of her predeceasing him. Blaiklock v. Grindle, L. E., 7 Eq. 215. It cannot perhaps be considered as quite settled whether rorteiture or com- the party electing to take against an instrument forfeits ab- p'='^"'™- solutely what is intended for him, or is bound merely to make compensation out of it for that of which his election deprives the other party, and according to the value of the interests of which the latter is disappointed. In favour of the doctrine of forfeiture even under wills is the great autho- rity of Ld. St. Leonards. Powers, 576. Against it are the cases of Dashwood v. Peyton, 18 Ves. 49; Gretton v. Haward, 1 Sw. 409, and several cases cited 1 Sw. p. 433, n. (o); Welby v. Welby, 2 V. & B. 190; Howells v. Jen- kins, 1 D., J. & S. 617; Willoughby Y. Middleton, 2 J. & H. 344 ; Griggs v. Gibson, L. E., 1 Eq. 685. The later cases, therefore, are against the doctrine of forfeiture. Under deeds, it has been held, that an election to take one property is a forfeiture of the other. See Green v. Green, 2 Mer. 92 — 95 ; consider however the cases last cited. The point was argued in Spread v. Morgan, 11 H. L. C. 588, but not decided. Perhaps also the observations of Ld. St. Leonards (Powers, 576), are to be understood as conveying his lordship's views as to what ought to be the rule, and not as an actual state- ment of the rule as it exists in practice, for in a subsequent page (ib. 579) he observes, speaking of election under powers, " But where there is no other fund than that ap- pointed, the doctrine of election which depends upon com- pensation cannot apply." Practically, in some cases, it makes no difference whether the principle is to be that of compensation or of forfeiture ; 158 Nature of Election. Testator or grantor liaving partial interest. Immaterial whe- ther testator knew facts. What necessary to. Kstate subject to incumbrances. Gift of testator's own property and A.'s to A. for instance, if a testator give 500Z. in money or stock of his own to A. and 500/. in money or stock belonging to A. to B., whether A., by electing against the will, is to be con- sidered as forfeiting the testator's money or stock to B., or as taking both and compensating B. to the extent of 500Z., the result is the same. But if the gifts are not of stock, but of estates, then upon the principle of compensatipn A. may take that which is given to him, and also keep his own, giving the value of it to B. But upon the principle of forfeiture he would be compellable to give up the estate iVse^/" which is given to him, a matter sometimes of great importance. In short, upon the principle of compensation, the party electing may retain what is given to him, and also his own property, giving up the money value of the latter. ,See Mr. Swanston's admirable note to Gretton v. Haward, 1 Sw. 443, 444. Where the testator or grantor has only a partial interest in property and disposes of the whole, giving some of his own property to the owner of the other part, the latter must elect. Miller v. Thurgood, 33 Bea. 496 ; Howells V. Jenkins, 1 D., J. & S. 617 ; see Grissell v. Swinhoe, L. E,., 7 Eq. 291. Though, if the language of the instru- ment will admit of it, the Court will construe it so as to confine the gift to that which belonged to the testator or grantor. Sudbury v. Clark, 2 Mac. & G. 298 ; Fitzsimons V. Fitzsimons, 28 Bea. 547 ; Honeywood v. Forster, 30 Bea. 14 ; Wintour v. Clifton, 8 D., M. & G. 641 ; Stephens V. Stephens, 1 D. & J. 62. It is immaterial whether the testator or donor does or does not know that he has no right to dispose of the pro- perty in respect of which the election has to be made. Whistler v. Webster, 2 Ves. jun. 371 ; Welby v. Welby, 2 V. & B. 199. To raise a case of election under a will there must be a form of gift as to property, which the donor had no power to dispose of. Att.-Gen. v. Lonsdale, 1 Sim. 105. Prima facie, the devise of an estate which is subject to incumbrances is made subject to them, so that the incum- brancers deriving benefits under the will are not bound to elect, for their interests are not dealt with nor disposed of. Ayres v. Willis, 1 Ves. sen. 230 ; Stephens v. Stephens, 1 D. & J. 62. The rule as to election is not applicable to cases in which a testator, erroneously thinking property is his own, gives it to another to whom in point of fact it belongs, and also gives to him other property which is really the testator's own. For, in such cases, the testator intends that the devisee shall have both, though he is mistaken as to his own title to one. Cull v. Showell, Amb. 727. Nor does a case of election arise unless the person benefited is entitled, in his own right, to the property given to Nature of Election. 159 another, and not in Ms representative capacity, though in effect he may be beneficially entitled, — for instance, where he takes as his wife's administrator. Grissell v. Swinhoe, L. R., 7 Eq. 291. But it will be sufiicient to bring the case within the general rule, if a person, though taking one fund by representation, be, by reason of such representation, the true owner of it at the time of the death of the testator, whose disposition of it gives rise to the question of election. Thus, if there be an appointment by A. to B. by deed which exhausts the power, and after B.'s death A. bequeaths pro- perty to B.'s children (who have become entitled to the appointed fund in his right), and gives the appointed fund to another, the children must elect. Cooper v. Cooper, L. R., 6 Ch. 15, in which Grissell v. Swinhoe, L. R., 7 Eq. 291, is explained. A case of election under a will must be raised by some- Haisedbytermsof thing in the will itself, not dehors ; that is, evidence dehors ment""^ "istru- of intention is not admissible. Stratton v. Best, 1 Ves. 285. See fVintour v. Clifton, 8 D., M. & G. 654; Stephens v. Stephens, 1 D. & J. 62. But the rule as to election is to be applied as between a gift under the will and a claim dehors the will and adverse to it, and is not to be applied as between one clause in a will and another clause in the same will (Wbllaston v. King, L. R., 8 Eq. 165), and it must be raised by something in the nature of a gift or disposition of property. Therefore an erroneous recital in a will, and mis- Erroneous recital. conception of the testator as to the effect of the rights of persons, will not raise a case of election, though the testator, in consequence of his mistake as to those rights, gives more to one person than to another, and the former is not bound to compensate the latter. Box v. Barrett, L. R., 3 Eq. 244; see Langslow v. L'angslow, 21 Bea. 552. A devise of property, with a recommendation to continue Eecommendation certain persons as tenants of it, may operate so as to compel ^^ "'"' the devisee to give effect to the recommendation, or give compensation for not acting upon it. Tibbits v. Tibbits, 1 Jac. 317. A case of election will also be raised by gifts to persons out in satisfaction in satisfaction of liabilities which the donor or testator is claims!"'' °' ' bound to satisfy ; thus, if a child be entitled to a portion under a settlement, and the parent gives an estate or benefit to such child by will in satisfaction of all claims upon him, the child must elect (Macnamara v. Jones, 1 B. C. C. 481 ; see Coleman v. Jones, 3 Russ. 312) ; and if a legacy be given on condition that the legatee release his claims on the testator's estate, he must execute the release before he can take the legacy. D. Northumberland v. Egremont, Amb. 160 Who bound to elect. Gift to be void if claim made on estate. Does not apply where valuable and burdensome pmijerty given. Married woman. 657. But a legacy to a person who is the testator's next of kin, to be void if he make any claim on the testator's estate, will not bar the legatee from claiming the undisposed-of residue as next of kin as well as the legacy, and no case of election is raised. Att.-Gen. v. Parkin, Amb. 566. The doctrine does not apply to a case in which two pro- perties, one beneficial, the other burdensome, are given to the same person ; for, as a general rule, a devisee or legatee may- take the former and refuse the latter [Andrew v. Trinity Hall, 9 Ves. 525; Warren v. Rudall, ] J. & H. 1 ; Moffatt V. Bates, 3 Sm. & G-. 468), imless an intention can be collected that the gift of the one was conditional upon the acceptance of the other. Talbot v. Earl Radnor, 3 M. & K. 254; Warren v. Rudall, sup. Who bound to elect.'\ All persons are bound to elect unless they are under some disability, for instance, infancy or lunacy (post) ; but coverture, as will be seen, is no disability in this respect. Very frequently a widow was put to her election between her dower and benefits given her by her husband's will. But this particular form of election is not likely to occur so frequently since the Dower Act. See tit. "Husband and Wife." A widow, however, may be put to her election be- tween other interests than rights to dower, and benefits given her by her husband's will. Thus, she must elect between stock purchased in their joint names, which would survive to her, or property of her own, which he has bequeathed wholly or partially to another, and legacies, &c. given to her {WorthinfftonY. Wiginton, 20Bea. 67; compromised on ap- peal, 1 Jur., N. S. 1195; Grosvenor v. Durston, 25 Bea. 97; Fitzsimons v. Fitzsimons, 28 Bea. 417; Whitley v. Whitley, 31 Bea. 173); but the bequest to another, of the interest belonging to the wife, must be clear and unequivocal to put her to an election. See Dummer v. Pitcher, 2 M. & K. 262; Coleman v. Jones, 3 Russ. 312; Poole v. Odling, 31 L. J., Ch. 439. If the widow does not elect in her lifetime, her representatives must do so. Fytche v. Fytche, L. R., 7 Eq. 494; see Padbury v. Clarke, 2 Mac. & G. 298. A married woman may elect without the intervention of the Court; and, although the election afiects real estate, it need not be by an acknowledged deed. Ardesoife v. Rennet, 2 Dick. 463; Barrow v. Barrow, 4 K. & J. 409; see IFil- loughby v. Middleton, 2 J. & H. 344; Campbell \. Ingleby, 21 Bea. 567; Anderson v. Abbott, 23 Bea. 457; Griggs v. Gibson, Maynard v. Gibson, L. R., 1 Eq. 685; Brown v. Brown, L. R., 2 Eq. 481 ; comp. Nicholl v. Jones, L. R., 3 Eq. 696. But she cannot, by her election, prejudice or affect IJlio bound to elect. 161 hev husband's marital rights. Brodie v. Barry, 2 V. & B. 127; cons. Ly.Cavan v. Pulteney, 2 Ves. jun. 544; Rutter v. Maclean, 4 Ves. 531. See as to the right of election being an equitable doctrine not affecting any legal estate, L. E., 1 Eq. 691; Spread v. Morgan, 11 H. L. C. 588. But a married woman cannot, at all events in general, by election deal with her i-eversionary choses in action. Williams v. Mayne, 1 Ir. Eq. Rep. 519; see Wall v. Wall, 15 Sim. 520, contra; and consider the 20 & 21 Vict. c. 57, in cases where that act applies. The principle of election applies to cases in which some Heir, benefit is given to the testator's heir by the will, and pro- perty descends to him which it is clear the testator intended for another. Thus, prior to the 1 Vict. c. 26, where the Election as to ae- testator devised to a stranger " all his real estate which he Mto'wms?"^ should die seised of," the heir was held bound to elect be- tween benefits given to him by the will and lands purchased {Churchman v. Ireland, 1 R. & My. 250; Ahdy v. Gordon, 3 Russ. 278; Schroder v. Schroder, Kay, 578, affirmed 18 Jur. 987; Hance v. Trawhitt, 2 J. & H. 216) or contracted for {Thellusson v. Woodford, 13 Ves. 211; S.C., 1 Dow, 249) after the date of the will, and which descended to him as heir. See Vnett v. Wilkes, Amb. 430; Brodie v. Barry, 2 V. & B. 127; Back v. Kett, Jac. 534; Johnson v. Tel- ford, 1 R. & My. 244. But this rule did not apply unless it was clear that the will was intended to operate on the after-acquired property. Plowden v. Hyde, 2 D., M. & G. 684. For there is no case where no election of election between property given by the will to the heir ^t^^f °°*"' and that which he takes by descent, and of which there is no disposition, and no such reference to it in the will as to lead to the clear inference that the testator intended to dis- pose of it. Maxwell v. Maxicell, 2 T>., M. & G. 705; see Johnson v. Telford, 1 R. & My. 244; Allen v. Anderson, 5 Ha. 163; Maxwell v. Hyslop, L. R., 4 Eq. 407. But in such cases if the will refers to property and purports to dispose of it, though ineffectually, a case of election will arise. As where a testator attempts to dispose of Scotch property by a will valid only as regards property in England. Brodie v. Barry, 2 V. & B. 127. If the heir takes nothing but what comes to him as heir, there is no case of election. Thus it has been held, that if the real estate of a female Heir of female minor be settled on her marriage, but the settlement is not ™op°erty"'' "'"'"'* afterwards perfected by her by an acknowledgment in her lifetime, her heir will not be bound by the settlement, where he takes such real estate only {Campbell v. Ingilby, 1 D. 6 J. 393) ; but if, in addition, he takes some interest under w. M 162 ?F/io bound to elect. Will not valid. By infants. Lunatic. Several. A^Hiere it arises. Testator must give property of his own to dis- appointed object. the settlement in other property, he must elect between 8iich interest and what he takes as heir. Brown, v. Uroivn, L. E., 2 Eq. 481 ; see Savill v. Savill, 2 Coll. 721 ; Ander- son V. Abbott, 23 Bea. 457. An election will be raised by the devise of an estate tail to a stranger and benefits given to the heir in tail. Wilson V. Ld. Townshend, 2 Ves. jun. 693; Welby v. Welby, 2 V. & B. 187; Honywood v. Foster, 30 Bea. 14. And if the produce of entailed property be settled, but not disentailed, the heir in tail who accepts benefits under the settlement must give effect to it. Mosley v. JVard, 29 Bea. 407. The heir cannot be "put to an election by the will of his ancestors, unless there is a disposition by a valid will, and it does not arise if the testator be under disability; for instance, infancy, or disposes, or attempts to dispose, of property by a will not duly executed. Tltellusson v. Woodjford, 13 Ves. 223; Gardiner v. Fell, 1 J. & W. 22. An infant cannot elect, and in those cases in which the infant, if adult, would have to elect, the ordinary practice is to direct an inquiiy whether it is to his advantage to elect or not. See Gretton v. Haward, 1 Sw. 413; Brown v. Brown, L. E., 2 Eq. 481—486. The court has power, in certain cases, to elect on the part of a lunatic. See Re Marriott, 2 Moll. 516. When several are entitled to elect, each has a separate right of election, and the election of any of them does not prejudice the rights of the others. JVard v. Baugh,4Yes. 623; Fytcke v. Fytche, L. E., 7 Eq. 494. Under Appointments in pursuance of Powers.^ Cases of election may also arise under appointments in pursuance of powers. Thus, in the case of a void appointment by vsdll to a stranger to the power, and gift of the appointor's own pro- perty to the object of it, who takes also under the power, in default of appointment, he must elect. JVhistler v. fVebster, 2 Ves. jun. 367; Tomkyns v. Blane, 28 Bea. 423; see Eng- land V. Lavers, L. E., 3 Eq. 63. To raise a case of election the appointor must give pro- perty of his own to the object of the power, if he appoints the property subject to it to a stranger. Be Foicler, 27 Bea. 362. For if no property be given but what is subject to the power, there is nothing out of which compensation can be made. Bristowe v. JVarde, 2 Ves. jun. 336; Sug. Pow. 579. In Coutts V. AcJiworth, L. E., 9 Eq. 519, a lady, on her marriage, appointed 3,000/. to trustees, the interest to be paid to her husband for life; after his decease the capital was given Under Appointments in pursuance of Powers. 163 over. The deed contained a powei- to revoke the trusts sub- sequent to the life estate. By her will, after marriage, she revoked all the trusts of the deed, and gave 1,000Z. to her husband and 2,000/. to another person. It was held, that the testatrix having revoked all the trusts of the deed, while the power only extended to the remainder, the husband was put to his election. An ojjject of two powers improperly excluded by an object o( two appointment under one is not debarred in consequence from exoiu?edirap-''^ claims upon the other, and no case of election arises. Thus, pointment under if there are two powers, one exclusive and the other not, and ™'^' there are several objects of both, an appointment of the whole fund, under the exclusive power, to A., who is an object of both powers, and an appointment of the whole fund, under the non-exciusive power, to the other objects, excluding A., will not prevent A.'s sharing in the property, subject to the second power, which is defectively appointed by reason of his exclusion, and he is not bound to elect. Re Aplin, 13 W. R. 1062. And where there are two powers, both ex- clusive, children and grandchildren being the objects of one, and children only of the other, and an appointment is made under the former to children only and under the latter to children and a grandchild (not an object therefore), the children are not compellable to elect in order to give effect to the void appointment to the grandchild. Re Fowler, 27 Bea. 362. A case of election will not arise if a testator appointor merely requests or directs the appointees, who are also legatees of other property, to give the appointed pro- perty to strangers to the power. Blacket v. Lamb, 14 Bea. 482. Nor will it where the appointment is absolute, with a Absolute appoint- subsequent superadded direction or condition in favour of ™comme£iou'' strangers. Carver v. Bowles, 2 R. & My. 301 ; Woolridge v. or diiection to Woolridge, Johns. 63; Churchill v. ChurclnU, L. R., 5 Eq. not'obTects.''"^""' 44; see Wollaston v. King, L. R., 8 Eq. 165; the case of Moriarty v. Martin, 3 Ir. Ch. R. 26, appears contra; but see the previous cases, and consider Sug. Pow. 682. But a case Declaration of of election does arise if the testator directs that the legacies '»'^*«'""''=- shall be forfeited on the direction not being complied with. King V. King, 15 Ir. Ch. R. 479. No case of election arises under a void appointment, the Qnaiiflni appoint- appointor declaring that he makes it only in case he has ™™*- power to do so. Church v. Kemble, 5 Sim. 525. An ap- pointee under two appointments, one of which becomes in- operative, is not bound to elect between the well-appointed fund and an interest to which he becomes entitled as next of kin of the appointor in the ill-appointed fund which devolves on such next of kin in consequence of the appointment of M 2 164 When Election to be made. it proving inoperative. Blaiklock v. Grindle, L. E., 7 Eq. 215 ; see Rich v. Cockell, 9 Ves. 369. AU circumstances must be knowu. Presumption of, from acts. Delay. JVhen Election to be made.] There is, as a rule, no limit in point of time to a riglit to elect, unless it can be shown that injury would result to third persons by delay. Brice V. Brice, 2 Moll. 21. On the other hand, it would seem that a person having an equity to compel an election does not, in general, forfeit the right by delay in enforcing it. Per Lord Chelmsford, Spread v. Morgan, 11 H. L. C.^ 588. A person is not bound to elect until all the circumstances which may influence his election are known to him, and an election made in ignorance of material facts is not binding. Dillon Y. Parker, 1 Jac. 505; 1 CI. & F. 303. So a person is not bound to elect without knowing the circumstances and va,lue of the properties between which he is to elect. Wake V. Wake, 1 Ves. jun. 335; Boynton v. Boynton, 1 B. C. C. 445; Chalmers v. Storil, 2 V. & B. 222. And an election under a mistake will not, in general, be binding. Pusey v. Desbouverie, 3 P. W. 315; Dillon v. Parker, 1 CI. & F. 303. Where there is no express election, it may be inferred from acts. But to raise an inference of election it should appear that the person knew of his right to elect and not merely of the instrument giving it. Edwards v. Morgan, 1 Bli., N. S. 401. Even the receipt of a provision for sixteen years in ignorance of a right to elect will not estop a person {Sopwith V. Maugham, 30 Bea. 235); though an election may be pre- sumed from acquiescence where there is Jull knowledge. Worthington v. Wiginton, 20 Bea. 67. Election is a question of intention, and, in general, may be inferred from a series of unequivocal acts. Spread v. Morgan, 11 H. L. C. 588. Settling one of two funds, as to which there is a right of election, will amount to an election to take the fund so settled. Briscoe v. Briscoe, 1 Jo. & Lat. 334. Suffering a recovery of lands devised in tail is an election to take those lands. Giddings v. Giddings, 3 Russ. 241. Taking the interest or income of a fund or property is in general an election to take the fund or property producing the interest or income. Ardesoife v. Bennet, 2 Dick. 463; see Dewar v. Maitland, L. E., 2 Eq. 834. But where a person who has to elect between two estates continues in possession of both without being required to elect, there is no evidence of preference and consequently of election. Padbury v. Clark, 2 Mac. & G. 298; Spread v. Morgan, Eecitai In dees. 11 H. L. C. 588. A recital in a deed may amount to an Question of inten- tion. Acts indicating election. By taking income of property. When Election to be made. 165 election or evidence of an election. Dillon v. Parker, 1 Jac. 505; 1 CI. & Fin. 303. In the absence of any evidence of election, express or PreaumpUon oi implied, the question would seem to be ■whether a disclaimer '^^^ '^"' can be presumed, particularly where the death of the party who is to elect follows very soon after that of the testator. In such cases it is a highly important ingredient in the case, whether it would be most for the benefit of the person en- titled, to disclaim or not, and by this consideration, in the absence of all other evidence, the court will be materially influenced. Harris v. Watkins, 2 K. & J. 473. When the presumption of an election arises, it is binding on those claiming under the party electing. Dewar v. Mait- land, L. R., 2 Eq. 834. As to election in cases where the doctrine of conversion applies, see ante, pp. 106 — 108. ( 166 ) ESCHEAT AND FOEFEITUEE. Propter defeetimi Sanguinis 166 Nature of. Personal estate. Bastard. Equitable csf:ites. Propter delictum — continued. Realty — Personalty . . 166 Contingent Interests . . Attainder — Conviction 169 Uquitahle Estates 166 170 Copyholds 167 Felo de se 170 Bona vacantia . . Mortgagor in Fee dying 167 Effect of Pardon Practice of Crown 170 170 intestate and without Seir 167 83 S- 34 Vict. 0. 28 . . Abolition of Fmfeiture 170 Trust Estate devised for purposes which fail.. LiaUlity to Charges . . 167 168 except for Outlawry. Wlicn Conrict ceases to 170 Re-entry ly the Crown be subject to Act Convict's disabilities . . 171 without Inquisition.. 168 171 Propter delictum, .. 168 Administrators 171 Real Estate 168 Powers of 171 Treason — Felony 168 WJiere Property to 54 Geo. 3, v. 145 169 revert. . 171 Felo de se 169 Liability of Adminis- Contingent Interests . . 169 trators 173 Copyholds 169 Interim Curator 172 Oarelliind Lands 169 Accountability of Ad- Equitable Estates 169 ministrators, ^'C. 172 Trustees— Mortgagees . 169 Wliat Property wit sub- Personal Estate 169 ject to Act .. 172 Escheats are of two kinds. First, propter defectum te- uentis vel sanguinis, or, as it may iu otlier words be described, for want of a successor, either heir, or next of kin, according to the nature of the property. Secondly, propter delictum, for crime. Co. Lit. 13 a; ib. 92 b. Propter defectum Sa?iguinis.] Escheat for want of suc- cessors takes place where a person dies intestate, leaving no one who can take as heir or next of kin, in which case his estates in fee, whether freehold, customary freehold or copy- hold, will escheat to the lord of the fee (2 Blae. Com. 72 ; see Walker v. Denne, 2 Ves. jiin. 170; IT caver v. Maule, 2 E. & j\Iy. 100), and his personalty to the crown (post). Therefore, if a bastard who has no lawful issue die intestate, his estate in fee escheats, for being filius nidlius he can havn, no other heirs than his own issue. Co. Lit. 3 b. But equitable estates do not escheat, for they are not the subject of tenure, and where there is a conveyance or devise to u trustee upon trusts which fail, and there is no heir of Propter defectum Saiuju'uds. 1G7 the grantor or testator, the trustee will hold for his own use absolutely. Burgess v. fF/ieate, 1 Ed. 177; Cox v. Parker, 22 Bea. 168. If there be no other superior lord of freehold estates, they escheat to the crown (Doe v. Redfern, 12 Ea. 96) ; but this cannot happen in respect of copyhold and customary freehold Copyholds, estates, as there is always a lord of the manor. IValker v. Denne, 2 Ves. jun. 170 ; see Weaver v. Maule, 2 E. & My. 27; Portland v. Hill, L. R., 2 Eq. 765. The crown is entitled, when there are no next of kin and Personalty, there is no widow, to the chattels, real and personal estate -Sona vacantia. of an intestate, or testator, under whose will personal estate is undisposed of, and which does not go to his executors beneficially (see Middleton v. Spicer, 1 B. C. C. 201 ; Elcock V. Mapp, 2 Ph. 793 ; 3 H. L. C. 492; Taylor v. Hay garth, 14 Sim. 8) ; Russell v. Clowes, 2 Coll. 648, as to which case, however, see Powell v. Merrett, 1 Sm. & Gr. 381 ; and if the intestate or testator leave a widow, the crown and the widow are entitled in equal moieties. Dacre v. Patrickson, 1 Dr. & Sm. 182. Under an ultimate trust in a marriage settlement for the wife's next of kin in the event of her dying without issue, the husband and not the crown will be entitled if the wife die without issue or next of kin and pos- sessed of personal property. Hawkins v. Hawkins, 7 Sim. 173 ; Anon. 1 Gifi'. 392. On the death of a mortgagor intestate and without an Mortgagor dyirg heir, the mortgage being in fee, the mortgagee is entitled to withou't^heir. hold discharged of the equity of redemption (Beale v. Symonds, 16 Bea. 406), but subject to payment of the debts of the mortgagor to the extent of the value of the equity of redemption. lb. 415. But in such cases, if the mortgage be for a term, the lord or the crown will be entitled to redeem. Vise. Downe v. Morris, 3 Ha. 394 ; see Rogers v. Maule, 1 Y. C. C. 4 ; and cons. Beale v. Symonds, 16 Bea. 414. When a testator dies without heirs or next of kin, Trust estate de- having devised his real estate to trustees upon trust to sell wwchfau.'"'"'*'^' and apply the proceeds to purposes which are contrary to law, as in mortmain, or which fail, the trustees are entitled to the money as real estate, as against the crown ( Taylor V. Haygarth, 14 Sim. 8) ; and the crown is not entitled to money directed to be laid out in land, where the testator dies leaving next of kin but no heir, and without having made an effectual devise of his real estate. Walker v. Denne, 2 Ves. jun. 170; see Cradock v. Owen, 2 Sm. & G-. 241. And as between trustees for sale under a will, and trustees having the bare legal estate of the testator, the former have the better title, if the trust fails and there is no 168 Escheat — Propter delictum. Estates are sub- ject to liabilities and cliarges. Breacli of trust. Re-entty by crown. heir, and a riglit to have the legal estate conveyed to them. Onslow V. Wallis, 1 Mac. & G. 506. A devisee in fee, subject to the payment of a sum of money to a charity, is entitled to the money as against the crown, there being neither next of kin nor heir, the money in such case being considered as real estate undisposed of. Henchman v. Att.- Gen., 3 M. & K. 485. Freehold estates, which escheat, are liable to the intes- tate's debts, charges and incumbrances. See Burgess v. Wheate, 1 Ed. 192; Evans v. Brown, 5 Bea. 114. As to copyholds, there might perhaps have been a question before the 3 & 4 Will. 4, c. 104, at all events where there was no notice of any charge or incumbrance on the Court Rolls. See Weaver v. Maule, 2 R. & My. 100. But this statute makes the lands themselves assets for payment of debts {ante, p. 28; Evans v. Brown, 5 Bea. 1141, to which the lord's right would be subject. Vise. Downe v. Morris, 3 Ha. 398, 400. As trust money may be followed into land against a trustee purchasing the land with such money on his own account, so it may as against the lord claiming the estate so purchased, by escheat on the death of the purchaser intestate and without an heir. Hughes v. Wells, 9 Ha. 749. By the 22 & 23 Vict. e. 21, the crown may re-enter on lands to enforce a right of re-entry without any inquisition being taken or office found (s. 25). Kcai Estate. Propter delictum.] Formerly, when a person was at- Treason. tainted of (i.e. sentenced to death for) treason, being seised of freehold lands for life or for any estate of inheritance in use or possession at the time of such attainder, or at any time after, such lands were forfeited to the crown (26 Hen. 8, c. 13, s. 5; see 33 Hen. 8, c. 20; Co. Litt. 372 b; Dowtie's case, 3 Rep. 10 a) ; and if they were mortgaged, the crown might have redeemed them. Att.- Gen. v. Crofts, 4 B. P. C. 136; Hodge v. Att.-Gen., 3 Y. C, Ex. 342. Felony. But if the attainder was iov felony, the crown was entitled to the lands of which the criminal was seised at the time of the crime (Co. Litt. 13 a, 390 b ; Morewood v. Wilkes, 6 C. & P. 144) for his life (17 Edw. 2, st. 1, c. 16), and after his death to his estates of inheritance for a year, day and waste (see Com. Dig. Ann., Jour & Wast.) ; after which, the inheritance of estates in fee escheated to the superior lord of whom they were held (Bac. Ab. Forf. A.\ while the inheritance of estates tail descended upon the issue in tail. See Dowtie^s case, 3 Rep. 10. Another consequence of attainder was, that descent coidd not be traced tlirough a person who had been attainted. Co. Lit. 13 a. Propter delictum. 169 By the 54 Geo. 3, c. 145, it was enacted, that no attainder Attainders. for felony, except for treason (also petit treason, but that was abolished by the 9 Geo. 4, c. 31, s. 2), murder or abet- ting, procuring or counscUiug the same should extend to the disinheriting of any heir, nor to the prejudice of the right of any person other than the offender during his life. See 4 Byth. Conv., ed. Sw. 72. And by the 3 & 4 Will. 4, c. 106, it was enacted, that descent might be traced through a person who had been attainted (s. 10). The estates of inheritance of a person dying felo de se Feiodese. did not escheat. 3 Bac. Ab. tit. " Felo de se ;" Norris v. Chambres, 29 Bea. 246, 259 ; affirmed 7 Jur., N. S. 689. It was held, also, that a contingent use or estate could not contingent inte- be forfeited. Manning t. Andrews, 1 Leon. 260. ^'^^■ Copyholds, being held at the will of the lord, did not Copyholds, escheat to the crown, even for treason ; but on attainder for that crime and for felony they escheated to the lord, but not without attainder, unless there was a special custom to that effect. Lord Cornwallis' Case, 2 Vent. 38; The King v. Willes, 3 B. & Al. 510; see Boe v. Evans, 5 B. & C. 584. As to gavelkind lands, see Rob. Gavelkind, ed. Norwood, Gavelkind lands. 141—2. Equitable estates in fee did not escheat for ordinary Equitable estates felonies, but the trustees held discharged of the trusts. »« inheritance. Att.-Gen. v. Sands, Hard. 488; see Burgess v. Wheate, 1 Ed. 176; Cox V. Parker, 22 Bea. 168. Formerly, if a trustee or mortgagee committed felony, the Trustees and mort- trust or mortgage estate would have been liable to escheat. sn«e«s. See Co. Litt. 13 a, n. 7. But this was remedied by the 13 & 14 Vict. c. 60, which enacted that no escheat or for- feiture of any lands, stock or chose in action vested in any trustee or mortgagee should take place by reason of the attainder or conviction of such trustee or mortgagee (s. 46). There is an exception as to any benejicial interest vested in such trustee or mortgagee (s. 47). These two sections re-enacted the 3rd and 5th sections of the 4 & 5 Will. 4, c. 23. As to the appointment of a new trustee in place of one con- victed, see 15 & 16 Vict. c. 55, s. 8, post, tit. " Trusts." On conviction for treason or felony, personal estate be- personal estate. longing to the felon at that time, or accruing to him after- wards before the expiration of his sentence, was forfeited to the crown. Bullock v. Dodds, 2 B. & A. 258; Roberts v. Walker, 1 R. & My. 752; Re Church, 16 Jur. 517; see Re Harrop, 3 Drew. 726. A contingent interest in personalty was not forfeited while Contingent inte- the contingency subsisted {Stokes v. Holden, 1 Ke. 145), but '^^''■ otherwise if the interest was vested, though not payable or coming into possession until the punishment had been under- 170 Escheat— Felony Act, 33 4- 34 Vict. c. 23. From what time attainder, &c. operated. ConTictioii, how operated ou per- sonalty. Practice of crown on forleitures. Abolition of for- feiture, except for outlawry. Forfeiture de- fined. gone (7?e Thompson, 22 Bea. 606), for that was equivalent to a pardon, and restored the felon to his civil rights. 9 Geo. 4, c. 32, s. 3. An attainder {R. v. Bridger, 1 M. & W. 145) for treason or felony (ante) related back to the time of the offence com- mitted, and any conveyance or charge on the attainted per- son's real estate between the crime and conviction was void. 1 Hale, P. C. C. 360; 2 ib. 179; Co. Lit. 13a; ib. 390b. Personal estate and chattels real, however, were forfeited only from the time of conviction, and all bona fide sales of or dealings with this kind of property, between the offence and conviction for it, were valid {Perkins v. Bradley, 1 Ha. 219; Chowne v. Baylis, 8 Jur., N. S. 1028; see Barnett v. Blake, 2 Dr. & S. 117), unless merely colourable or volun- tary, to avoid forfeiture. 1 Ha. 227; Saunders v. Watson, 4 G-iff. 179. The personal estate of a person dying ye/o de se was forfeited to the crown. Norris v. Chambres, 29 Bea. 246; aifirmed 7 Jur., N. S. 689. As to the operation of a pardon under the great seal or privy seal and sign manual, see Bullock v. Dodds, 2 B. & Al. 277. As to per- sonal property vested in trustees or mortgagees, see ante, p. 169. Re Church, 16 Jur. 517; Re Harrington, 29 Bea. 24 ; Gough v. Davies, 2 K. & J. 623 ; and as to the course of dealing by the crown with forfeited or escheated property, see Doe v. Redfern, 12 Ea. 96; Ex parte f-Febster, 8 Ves. 809; Moggridge v. Thackivell, 7 Ves. 71; Gumming v. Forrester, 2 J. & W. 334. By the 39 & 40 Geo. 3, c. 88, s. 12, and 6 Geo. 4, c. 17, s. 1, the crown was enabled to grant any escheated lands and hereditaments either for the purpose of restoring them, or of rewarding persons discover- ing the escheat. 33 Sf 34 Vict. c. 23.] In the preceding pages I have en- deavoured to give a concise statement of the law existing at the time of the passing of the act next noticed. By this act, 33 & 34 Vict. c. 23 (4th July, 1870) a complete change has been made in the law relating to forfeiture for crime. The leading provisions of the act, so far as they relate to a con- vict's property, are in substance as follows : — After the passing of the act, no confession, verdict, in- quest, conviction or judgment of or for any treason or felony or felo de se shall cause any attainder or corruption of blood or any forfeiture or escheat, provided that nothing in the act shall affect the law of forfeiture consequent upon out- lawry (s. 1). The word "forfeiture" in the construction of the act does not include any line or penalty imposed on any convict by virtue of his sentence (s. 5). Felouij Act, 33 4- 34 Vict. c. 23. 171 The expression " convict" is to be deemed to mean any convkt. person against whom, after the passing of the act, judgment of death or of pennl servitude shall have been pronounced or recorded upon any charge of treason or felony (s. 6). When any convict shall die or be made bankrupt, or shall when convict have suifered any punishment to which sentence of death is ^eJf'j^ deration pronounced or recorded against him, may be lawfully com- of act. muted or shall hfive undergone his full term of pen.al servi- tude or such other punishment as may have been substituted for such full term, or shall have received her JNIajesty's par- don, he shall thenceforth, so far as relates to the provisions of the act, cease to be subject to its operation (s. 7). No action or suit for the recovery of any property, debt Convict disabled or damages shall be brought by any convict against any !menate°property. person while he shall be subject to the operation of the act, and every convict shall be incapable during such time of alienating or charging any property or of making any con- tract save as thereinafter provided (s. 8). This exception would seem to refer to s. 30, -post, p. 172. The crown may from time to time appoint administrators Crown may ap- of a convict's, property and revoke appointments, and, when trators. ™™ necessary, appoint new administrators, and thereupon the powers and property vested in the prior administrator shall devolve upon his successor, who shall be bound by the law- ful acts of the former (s. 9). Upon the appointment of any administrator, all the real Convict's property and personal property, including ohoses in action to which ^tratVr" '^™'" the convict named in such appointment was at the time of his conviction or afterwards, while he continues subject to the operations of the act, becomes entitled, ^-ests in such administrator for all the estate and interest of such convict therein (s. 10). The administrator has absolute power to let, mortgage, Powers of saio sell, convey and transfer any part of such property (s. 12). submortgage. The administrators may pay the costs of prosecution and of executing the act (s. 13), the convict's debts (s. 14), and Debts, may make compensation out of property to persons defrauded compensations, (s. 15), and allowances to convict's fainily (s. 16). Allowances. The exercise of the administrator's power as to payments, Discretionary contracts, mortgages, conveyances bona fide made, is not to p^^^"^ °' '^"'"''*" be questioned (s. 17). Subject to the powers and provisions of the act, all such •^^^len property property and the income thereof shall be preserved and held '° '■'=^^'''- in trust by the administrator, and tlie income thereof may, if and when the administrator shall thinlv proper, be invested and accumulated in such securities as he shall fiom time to time think fit, for the use and benefit of the convict and his 172 Escheat— Felony Act, 33 Sf 34 Vict. c. 23. Liability of admi- nistrator. Costs. Interim curator. Powers of. As to abatement of proceedings. Execution of judgments. Accountability of administrator. What property not subject to act. heirs and legal personal representatives, or of such other persons as may be lawfully entitled thereto, according to the nature thereof ; and the same shall revest in and be restored to the convict upon his ceasing to be subject to the act, or in his heirs or legal personal representatives. The powers of the administrator are then to cease, except so far as may be necessary for the care of the property or for obtaining payment out of it of any expenses under the act (s. 18). Administrators are only to be liable for what they receive (s. 19) ; costs of (s. 20). If there is no administrator, an interim curator of the convict's property may be appointed by justices (ss. 21, 22), and removed by them or the court (s. 23). The powers of an interim curator are similar to those of an administrator ; but he cannot sell or mortgage the convict's real property at all, and can only sell his per- sonal property under the authority of justices or the court (ss. 24, 25). Proceedings by or against an interim curator are not to abate if administrator appointed (s. 26). The exe- cution of judgments against the convict's property is provided for (s. 27). Proceedings may be taken to make the adminis- trator or interim curator accountable before property reverts to convict (s. 28), and they are accountable to the convict (s. 29). Property of a convict acquired while he is lawfully at large is not to be subject to the operation of the act (s. 30). The act does not extend to Scotland (s. 33). ( 173 ) OF ESTATES AND INTERESTS IN PEOPEETY. Ch. 1. — Of Peopeett and Estates and Inteeests in Peopeett geneeallt, p. 173. Sec. 1. — Real Peopeety, p. 173. Sec. 2. — Chattels Eeal and Peesonal Pko- PEETr, p. 178. Sec. 3. — Op Legal and Equitable Estates and Inteeests, p. 179. Ch. 2.— Feeehold Estates, p. 180. Sec. 1. — Estates in Fee, p. 180. Sec. 2.— Estates Tail, p. 189. Sec. 3. — Estates aeising by the Opeeation op THE Rule in Shelley's Case, p. 200. Sec. 4. — Estates foe Life, p. 205. Ch. 3. — Copyhold Estates, p. 210. Sec. 1. — Estates in Fee, p. 210. Sec. 2. — Estates Tail, p. 2] 5. Sec. 3. — Estates for Life, p. 217. Ch. 4. — Leasehold Estates, p. 218. Sec. 1. — Renewable Leaseholds, p. 218. Sec. 2. — Terms of Yeaes, p. 224. Ch. 5. — Peesonal Estate, p. 226. CHAPTER I. of peopeett in which estates and inteeests may be held. Sec. 1. — Real Property. Generally .. .. .. 173 Seal Property — Per- sonal Property . . 174 Lands — Tenements — Hereditaments . . 174 Incorporeal Hereditaments . 174 Advomspns—Next Pre- sentation .. .. 174 Incorporeal Heredits. — contd. Tithe Pent-cJiarge . . 175 Merger of . . . . 175 Commons ,, .. 175 Inclosnre Acts . . ,. 176 177 177 177 M'ays Rents Generally. ^ Under this head I propose to consider, first, Division of sub- the nature of property in which estates may he held ; secondly, ^^°'- 174 Estates — Corporeal hereditaments. Several kinds oi property. Beal. Personal. Lands. Hereditaments. Corporeal heredi- tament3. the nature and incidents of the estates themselves. In parts of tliis title matters of a somewhat elementary nature have been I'eferred to, but as concisely as possible. The plan of the work, however, required that they should not be alto- gether passed over (a). The usual division of property is into two classes : 1. Eeal, or immoveable; 2. Personal, or moveable. 2 Bl. Com. 16; Co. Litt. 118b. Chattels real partake of the character of both, being immoveable, yet personal estate in law. Eeal property comprises — first, lands which include not only the soil but everything on it, as houses, water, wood, &c., and under it, as mines, minerals, &c. 2 Bl. Com, 17, 18; Row- botham v. Wilson, 8 H. L. C. 348. Though of course the owner of the whole may sell the mines reserving the soil, or sell the soil reserving the mines. lb.; sqq Humphries v. Brogden, 12 Q. B. 739; EwartY. Graham, 7 H. L. C.331. Secondly, tenements, or whatever can be holden. The word includes land, but comprises other things besides land, as an office, right of common, not comprehended under the word land. 2 Bl. Com. 17, 18. Thirdly, hereditaments, a still larger word ; for hereditaments comprise lands and tene- ments and whatsoever besides can he inherited, including in some cases even mixed or personal property ; for instance, an heir-loom (2 Bl. Com. 17), as it is capable of being in- herited {ib."), though, strictly speaking, it is inaccurate to class personal property of any kind under the description of real property. As to what are heir-looms, see tit. "Exectj- TOES." Hereditaments are corporeal or incorporeal. As to corporeal hereditaments, though, as defined by Black- stone, they " consist of such as affect the senses, and may be seen andhandled," yet he subsequently limits this definition to whatever may be comprehended under the word land. Com. 17. But this would not include an heir-loom, though falling within the definition of a <;orporeal hereditament. Incorporeal Hereditaments.] Incorporeal hereditaments are rights issuing out of a thing corporate (whether real or personal), or concerning or annexed to or exerciseable within the same. 2 Bl. Com. 20. There are several kinds of in- corporeal hereditaments. They consist principally of advow- sons ; tithes, or rather, at the present da)', tithe rent-charges ; commons ; titles ; ways, and I'ents. An advowson is the perpetual right of presenting a per- son to an ecclesiastical benefice on a vacancy (Co. Lit. 17 b). (a) See the very interesting and instructive preliminary chapters in Mr. J. Williams's valuable work on Real Property. Incorporeal hereditaments. 17.) and is either appendant to n manor, passing witli it by a grant of the manor only (Co. Lit. 121 b; Rooper v. Harri- son, 2 K. & J. 86j, or in gross, that is, where the right lias been granted away, and exists separately from the manor. 2 Bl. Com. 22. An advowson may be limited in fee, in tail, for life or years, and in remainder or reversion, and is subject to cur- tesy and dower (3 Cr. Dig. tit. 21, c. 1^, and may bo held in joint tenancy, coparcenary and in common. lb. c. 2. Joint tenants and tenants in common must all join in pre- senting, as also should coparceners, but if coparceners can- not agree, they take their turn in presenting according to seniority. lb. See further as to advowsons, 3 Cr. Dig. tit. 21. If the right to the next presentation be sold, such right is xext presenta- personal property, and if before presentation the purchaser ''™' dies, it devolves on his personal representatives. Bennett V. Bp. of Lincoln, 7 B. & C. 113 ; Wms. Exors. 633. As to presentations, where advowsons are held by Roman Ca- tholics (see 11 Geo. 2, c. 17, s. 5). The sale of the next presentation, the incumbent being ia Sale of. extremis within the knowledge of both contracting parties, but w.ithoiit the privity, or writh a view to the nomination of a particular clerk, is not void, on the ground of simony. Fox v. Chester {Bp.), 3 Bli., N. S. 123. Nor is an agree- ment for the sale of an advowson containing a stipulation for the payment of interest by the vendor until the benefice should become vacant, the incumbent being a son of the vendor, but no party to the contract. Sweet v. Meredith, 3 Giff. 610. As to resignation bonds and agreements, see 9 Geo. 4, Resignation bonas. c. 94. And as to sales of livings, the right of presentation to Sales of livings. which is vested in the lord chancellor, see 26 & 27 Yict. c. 120. Tithes are the tenth part of the increase yearly arising Tithes. from the profits of lands, stock upon lands, and the personal industry of the inhabitants. 2 Bl. Com. 24. Tithes were, and the tithe commutation rent-charge (post) is, payable to the actual incumbent of the parish, or freriuently to hiy impropriators. Estates and interests in tithes, or tithe rent- charges follow the same course of descent, and are subject to the same incidents as real estate, quite irresfiective of the purposes to which tithes were originally applicable. See 27 Hen. 8, c. 28 ; 31 Hen. 8, c. 13 ; 32 Hen. 8, c. 7. An estate in tithes, however, is quite distinct from the land out of w^hich they (formerly) issued, or in respect of vv^hich the 176 Estates — Incorporeal hereditaments. Tithe rent-charge. Common of i tore. Appendant. Appurtenant. By Ticinage. In gros3. Common of piscary. Turbary. Estovers. Inclosore acts. rent-charge in lieu of them is now payable {Chapman v. Gatcombe, 2 B.N. C. 516), and whatever maybe the tenure of the lands, for instance, if it be gavelkind, ^c. {post), the tenure and mode of descent of the tithes or tithe rent-charge are according to the general law of the land. Doe d. Lush- ington v. Bp. of Llandaff, 2 Bos. & P. 491. Many perplexing questions arose formei'ly upon the subject of tithes. Now, however, by the 6 & 7 Will. 4, c. 71, tithes are commuted for a rent-charge payable in money, and esti- mated according to the average price of coin (wheat, barley and oats), and ascertained for the period and in the manner provided by the act. Sect. 67. No one is personally liable to the payment of the rent-charge, which is a charge upon the land {ib.), recoverable by distress like poor rates. Sect. 70. This act (s. 71), and subsequent acts (1 & 2 Vict. c. 64, s. 1, and 9 & 10 Vict. c. 73, ss. 18, 19, 20), con- tain provisions enabling tenants in fee and in tail to merge the tithe rent-charge, but without prejudice to charges or incumbrances existing thereon. 2 & 3 Vict. c. G2, s. 1. The person merging the rent-charge may apportion such charges or incumbrances on the lands in which the merger shall take effect, or part of them, or in other lands. Ib., ss. 2, 4, 6; and see 23 & 24 Vict. c. 93, s. 20, and ss. 31 to 39. A right of common is a profit which one man has in the land of another, and is of four kinds. Common of pasture, or the right to feed beasts on the land of another. This is, (1) appendant to lands within a manor, being the right of owners or occupiers of such lands to put beasts on certain waste and other lands within a manor. This right can only be claimed by prescription. See Co. Lit. 122 a (n), 2, 4 ; see the Prescription Act, ante, p. 138. (2) Appurtenant, which may arise by prescription or grant. Ib. (3) By reason of vicinage, resting on prescription, where the cattle of inhabitants of adjoining townships escape into each other's lands until they are inclosed. Co. Lit. 122 a. (4) In gross, which is a personal right founded on grant or prescription. Ib. The three other kinds of common are — common of piscary, the right of fishing ; of turbary, of cutting turf; of estovers, of taking wood ; — on another man's property. 2 Bi. Com. 34, 35. These rights have become and are yearly becoming more restricted, owing to the inclosures of commons, which are now effected through the instrumentality of inclosure com- missioners. Inclosures were formerly effected under the general In- closure Act, 41 Geo. 3, c. 109, and Private Acts. Now Incorporeal Hereditaments. 177 commissioners, styled the Inclosure Commissioners for Eng- land and Wales, are appointed under the 8 & 9 Vict. c. 118, and inclosures are made under their sanction, large powers having been given to them for this purpose by this and several subsequent acts. See, in particular, 20 & 21 Vict. c. 31; 22 & 23 Vict. c. 43. Under the 8 & 9 Vict. c. 118, the commissioners are re- quired to malie annual reports to one of the secretaries of state of the several cases in which they have authorized or refused their consent to inclosures, and of the cases in which the direction of Parliament is required for proposed inclo- sures (s. 3). In cases of the latter description, acts are in general passed giving effect to the recommendation of the commissioners. See, as instances of this course of proceed- ing, 30 & 31 Vict, chapters 20 and 71. The inclosures of commons near the metropolis are regulated by the 29 & 30 Vict. c. 122; 82 & 33 Vict. c. 107. Dignities, or titles, which, down to and including the Dignities. dignity of baronet, are hereditary, are also incorporeal here- ditaments, and for the most part descend in the same way as an estate tail male (see post), though sometimes the limita- tion includes heirs in tail female, and in some rare instances, that of Lord Brougham, for example, the title was permitted to devolve upon the collateral heir on failure of lineal descendants. A right of way over another man's land is also an incor- ways. poreal hereditament. This rests also, in general, upon pre- scription or grant. See ante, tit. " Easements." Bent, reditus, is a return in the nature of an acknowledg- cents. ment for the possession of some corporeal hereditament. 2B1. Com. 41 . It is a certain profit issuing out of lands or corporeal Must be certain, tenements. It need not be money, but may be corn or other produce ; but not part of the vert/ land or tenement or thing itself out of which it is reserved so long as it retains its character in law (2 Blac. 41); though rent may be part of the very thing demised after it has been severed and become a chattel ; thus, part of the rent of a quarry or a coal mine may be a certain portion of stone or coal to be rendered after severance. See Beg. v. Westbrook, 10 Q. B. 205. The most usual kind of rent is rent reserved on lease. As to rent- charges, see ante, tit. " Anndities." When it is stated that rent is an incorporeal hereditament, what kind of this must be understood either of rent reserved out of pro- umeutf perty which is inheritable, the right to which is incident to and goes with the reversion to the property, or of a rent- charge which is expressly granted in fee (see ante, p. 9), or in some rare instances in tail (J. Wms. Eeal Property, 322), 178 Chattels Real and Personal Property. and whicli is consequently of a descendible nature. When the rent is reserved to a person who has merely a chattel interest it is not inherited, but goes, if not otherwise dis- posed of, to his personal representatives. The foregoing form at the present day the principal incor- poreal hereditaments. There are four others according to Blackstone, viz. offices, franchises, corodies or pensions, and annuities ; as to the last see ante, tit. "Annuities." Questions upon the others do not often arise. This classification of incorporeal hereditaments is that which is adopted by Blackstone and most writers who have followed him. It is proper, however, to mention that Mr. J. Williams, whose views and opinions are entitled to the greatest respect and consideration, classes not only hereditaments of the kind above mentioned, but also reversions, vested and contingent remainders, and executory interests, under the general head of incorporeal hereditaments, distinguishing the former, however, as hereditaments purely incorporeal. See K. P., Part 2. Personal pro- perty. Sec. 2. — Chattels Real and Personal Property. Chattels real, though in one sense personal property, yet are interests in land properly so called. Co. Lit. 118 b. They comprise all leases and terms of years, whatever their duration may be. What cannot be classed under some one of the heads of real property, and is not a chattel real, is personal property. There is not, usually, much difficulty in distinguishing be- tween real estate descending to the heir, or passing under a devise of realty, and personal estate devolving on the executor or next of kin, the distinction between the two classes of property being, in general, sufficiently marked. The cases where doubt might chiefly arise are those in which persons are interested as shareholders in companies possess- ing real property. Such shares, however, are, as an almost universal rule, made personal estate by statute, the chief exceptions being shares of tolls of light-houses {Att.-Gen. v. Jones, 1 Mac. & G. 574) and New River shares, which are real estate. Drybutter v. Bartholomew, 2 P. W. 127. Personal property, strictly speaking, is the subject of absolute ownership, and cannot be held for any estate. J. Wms. Personal Property, 7. Practically, however, by means of trusts, estates and interests in personal property may be created which, to a great extent, correspond with similar interests in real estate (ib. 243) ; and constantly in Legal and Equitable Estates and Interests. 179 wills personal property is given to one person for life with remainders over, to which bequests effect is duly given in equity. In some few rare cases personal estate, or that which is in its nature personal estate — for instance, some kinds of heiilooms— will go to the heir and not to the executor. As to this, see post, tit. " Executoks." Sec. 3. — Of Legal and Equitable Estates and Interests. The legal estate is that whicli is regarded in a court of Distinction be- law, the equitable estate in a court of equity. Where there equitobfftate"" is no equitable estate as distinct from the legal estate, both rests, being equal and co-extensive and vested in the same person, no question can, of course, arise in consequence of their dif- ferent nature; for there is a merger of the equitable in the legal interest. Selby v. Alston, 3 Ves. 339. Where both interests are subsisting in the same property in different per- sons, the legal interest is that which is vested in the trustee, the equitable in the cestui que trust. See tit. " Trusts." It is a fundamental principle of universal application that ownership in equitable estates, whether in fee, in tail, for life or for years, eiiJity «°i "t law. are in equity what legal estates are at law, and the owner- ship of the equitable estate is in equity considered as the real ownership, the legal estate being, as it has been termed, no more than the shadow which always follows the equitable estate, which is the substance, except where there is a pur- chase for value without notice and the purchaser has the legal estate. Att.- Gen. v. Downing, Wilm. 23 ; Burgess V. Wheate, 1 Ed. 223 ; Mansell v. Mansell, 2 P. W. 681 ; Williams v. Owens, 2 Ves. jun. 603. The absolute owner of the equitable estate may deal with it in equity without the intervention or interference of the trustee having the legal estate (see Brydges v. Brydges, 3 Ves. 120); though, of course, where it is necessary that the legal estate should be conveyed, the trustee must join, and may be compelled to join for this purpose. Equitable estates descend in the same way as legal estates, and as regards customary equitable estates the descent is according to the custom. Gilb. Uses and Trusts, 19; Trash V. Wood, 4 M. & C. 324. But where there is an executory trust only, the common law heir takes. lb. ; Roberts v. Dixwell, 1 Atk. 609. As to the distinction between ex- ecutory and executed trusts, see tit. " Marriage Settle- ments." n2 180 Estates in Fee. CHAPTER II. FREEHOLD ESTATES. Sec. 1. — Estates in Fee. Nature of, and kow created . 180 Greatest Estate in Lam 180 Customary Freeholds . . 180 Such Freeholds origi- nally Copyholds . . 181 And retain most of inci- dents .. .. .. 181 Conveyance of Freeholds 181 Of customary Freeholds 181 Ancient Demesne — Franhalmoign . . 181 Creation of Fstate in Fee 181 Word "Heirs".. ., 181 "Heir" — "Successors" . 182 Descent of, before and under 3 # 4 Will, i, c. 106 Former Rule, Descent traced from Person last seised Definition of Words . . Present Rule . . Heir must be according to English Lam Canons of Descent Males inherit before Females .. . . Greatest estate in law. 182 183 183 184 185 185 185 Descent of, ^'c. — continued. Descendants of deceased Ancestor represent him .. Limitation by Settlor to himself Limitation to Heirs . . Descent from Brothers and Sisters . . Ancestor may be Heir to Issue Paternal and Maternal Ancestors Half blood — Posses.no fratris Descent through at- tainted Person Presumptive Heir — Right to Rents Gavelhind .. . . Curtesy — Dower Borough English Operation of Act on Customary Descent . . 185 185 185 . 186 186 186 186 186 187 187 187 188 188 Incidents of Estates in Fee . 188 Absolute Orcnership . . 188 Restrictive Conditions void 188 Customary free- bolds. Nature of, and how created.l An estate in fee or fee simple is the greatest estate known in our law. Lit. s. 11. It is, strictly speaking, an estate which is not absolute, but held of some superior lord; and if, as is generally the case as i-egards freehold property, there is no other lord, it is in law held of the sovereign. Originally, estates in fee were granted by the lords to their freemen, as distinguished from copyhold estates, which were granted to their villeins. See " Copy- holds," post; 2 Blac. Com. 79, 92. Real estate alone can be held in fee, for personal estate is not the subject of tenure. A freehold estate, for whatever period, cannot at the common law be made to commence in futuro without some previous estate in presenti, though it may, by the operation of the Statute of Uses (2 Blac. Com. 166) and under wills. See tit. " Wills." There are certain freehold estates called customary freeholds, which are of a somewhat anoma- Nature of, and how created. 181 lous nature. They appear to have been originally pure copy- oriKinaiiy copy- holds {post, "Copyholds") as distinguished from freeholds, ''°''^'- which, in course of time, ceased to be held at the will of the lord though they continued to be held according to the custom of the manor, and retained all or most of their other Retain most ind- copyhold properties. See Co. Lit. 59 b, u. 1 . Thus the free- "^'^ "'• hold remained in the lord, giving him the right to mines and timber. Doe v. Huntington, 4 Ea. 271 ; D. of Portland v. Hill, L. R., 2 Eq. 765. See further as to customary free- holds, Vaughan d. Atkins v. Atkins, 5 Burr. 2764 ; Burrell V. Dodd, 3 B. & P. 378 ; Doe v. Huntington, 4 Ea. 270; Broicn V. Rawlings, 7 Ea. 509 ; Graham v. Jackson, 6 Q. B. 811 ; Thomson v. Hardinge, 1 C. B. 940; Busher v. Thompson, 4 C. B. 48. Estates in fee are now conveyed almost invariably either Conveyance cf by appointment under a power or by a simple deed of grant how™"^^ *'^^' (8 & 9 Vict. c. 106, s. 2, 1st October, 1845), though other and earlier modes of conveyance, as by lease and release, or feoff- ment, maybe occasionally resorted to. Customary freeholds ot customary are conveyed according to the custom of the manor, but in *°^''° ''^■ some, if not many, cases are conveyed, like ordinary freeholds, by grant, and not, like copyholds, by surrender and admit- tance. Passingham v. Pitty, 17 C. B. 299; see Bingham v. Woodgate, 1 R. & My. 32, 750. When the tenants hold by gift or feoffment they are freeholders, when they hold by copy of court roll at all, then they do not hold otherwise than as copyholders {D. of Portland v. Hill, L. R., 2 Eq. 784); consider the very learned judgment in this case, and com- pare the judgments, particularly that of Williams, J., in Passingham v. Pitty, sup. As to lands in ancient demesne and lands held by frankal- Ancient demesne, moign tenure, see 2 Blac. Com. 100, 101 ; J. Wms. R. Franitaimoign. Prop. 125, 126. And as to gavelkind and borough English tenure, see post, pp. 187, 188. An estate in fee simple is properly created by a limi- creation of estate tation to a person and "his heirs." Lit. s. 1. The word '°'^''' "assigns" is usually added, but is not necessary. Unless word " heirs." the word " heirs," being the proper word of limitation, be used, a life estate only will, as an almost universal rule, be created under a deed. lb.; Holliday v. Overton, 15 Bea. 480; Tathamw. Vernon, 29 Bea. 604. The word "heirs" may be in any part, e.g. at the end of a sentence ; thus, a limitation in a deed to all and every the child and children equally, and if but one child to such child, his or her heirs creates a fee in all the children. Doe v. Martin, 4 T. R. 39. In a will, however, a fee may be created by other words, and without words of limitation at all. See tit. " Wills." 182 Estates in Fee. Limitation in tlie alternative. Release from one joint tenant. Personal estate. Even where property is limited by deed to trustees and their heirs ih trust for A. (without more), A. merely takes a life estate. Marshall v. Peascod, 2 J. & H. 73 ; Smith v. Smith, 11 C. B., N. S. 121. Under a limitation to A. or his heirs, or to A. {an individual) and his successors, A. will only take an estate for life. Co. Litt. 8 b. But in a release from one joint tenant or coparcener to another, or from a lord to a tenant, or a release of a bare right or grant of rent by a coparcener for equality of partition, the fee will pass without tlie word heirs. Co. Litt. 9 b. So formerly in recoveries and certain iines. lb. It may be observed, that a limitation, or gift of personal estate to A. and his heirs, gives the absolute interest, but the word heirs is superfluous, and in a legal sense improper. A limitation to A. and his heir (in the singular) does not, according to Ld. Coke, create an estate in fee. Co. Litt. 8 b ; see, however, Mr. Har- grave's note (ib.), and comp. Chambers v. Taylor, 2 M. & C. 376. In Bayley v. Morris, 4 Ves. 788, by a marriage settle- ment, an estate was conveyed to the use of trustees in trust, after life estates to the husband and wife, for the heir male of her body by him to be begotten, and to his heirs, and for want of such, for the daughters, and if there should be no issue of the marriage, for the right heirs of the husband. The remainder to the heir male was held a contingent re- mainder in fee in such person as should be heir male of the wife at her death. And see Greaves v. Simpson, 10 Jur., N. S. 609. Under a limitation to A. for life, remainder to B. (his wife) for life, remainder to the " heir female" (in the sin- gular) begotten and then living, or which might be begotten thereafter, with remainder to the heir male, with remainder to the right heirs of A., it was held that the daughters of A. took life estates as purchasers. Chambers v. Taylor, 2 M. & C. 376. In Dubber v. Trollope, Ambl. 457, C. J. Eyre seems to have considered that a limitation by deed to A. and his "heir" male would give A. an estate tail male. See Fuller V. Chamier, L. R., 2 Eq. 682. Where the fee is conveyed to a corporation, the proper word of limitation is " successors," though this is not neces- sary in the case of corporations aggregate. Co. Lit. 9b; 94b. As to the operation of the Rule in Shelley's Case, see post. Sec. 3. As to what words in wills create an estate in fee, see tit. " Wills." Descent before and under 3 ^5- 4 JVill. 4, c. 106.] On Descent before and under 84-4 Will. 4, c. 106. 183 the death of the owner in fee intestate the devolution of his estate is determined by law. Before the stat. 3 & 4 Will. 4, Formerly descent c. 106, the rule was seisina facit stipitem, and "no one {^tseiaeT"™"" could properly be such an ancestor as that an inheritance of lands or hereditaments could be derived from him unless he had had actual seisin." 2 Blac. Com. 209. But this rule must be understood as subject to the qualification that mere seisin was not sufficient to make an estate descendible to the heirs general of the person seised ; for instance, if he was seised by descent ex parte materna, on his death without issue the heirs by the mother's side took in preference to those by the father's side. For the descent to be traced from him generally, as if he had been the purchaser, it was necessary that the descent should be broken, as it was termed, that is, that he should convey his old estate by descent and take a new one bi/ purchase. See 2 Blac. Com. 236; Swaine v. Burton, 15 Ves. 371 ; Nanson v. Barnes, L. R., 7 Eq. 250. Seisin was either by the entry of the owner or of any seisin. • person who was seised jointly or in common with him. Watk. Desc. 52. Seisin might also have been by receipt of rents. See Co. Lit. 15 a. De Grey v. Richardson, 3 Atk. 469. The enjoyment of incorporeal property in the way in of incorporeal which from its nature it was capable of being enjoyed was, tiereditaments. as a rule, equivalent to the seisin of corporeal property, as in the case of an advowson by presentation to the church. See Co. Lit. 15 b. The statute of Will. 4 has made most important altera- tions in the law of descent, particularly with reference to the person from whom the descent is to be traced. The act was in a great degree based upon the Report of the Real Property Commissioners, which will be found in Shelford's Real Property Statutes, 449 et seq. By the act, (which does Definition of not apply to descents before 1st January, 1834, s. 11,) it is '"'"dsinact. in substance enacted, that (except where the nature of the provision or the context of the act shall exclude such con- struction), "land" shall extend to manors, advowsons, mes- "Land." suages, and all other hereditaments, corporeal or incorporeal, freehold or copyhold, or of any other tenure, and whether descendible according to the common law, or according to the custom of gavelkind or borough English, or any other custom, and to money to be laid out in the purchase of land, and to chattels and other personal property transmissible to heirs, and also to any share of the same hereditaments and properties or any of them, and to any estate of inheritance, or estate for any life or lives, or other estate transmissible to 184 Estates in Fee. heirs, and to any possibility, right or title of entry or action, and any other interest capable of being inherited, and whether the same estates, possibilities, rights, titles and in- terests, or any of them, shall be in possession, reversion, re- " The purchaser." mainder, or contingency; "the purchaser" shall mean the person who last acquired the land otherwise than by descent, or than by any escheat, partition or inclosure, by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent; "Descent." " descent" shall mean the title to inherit land by reason of consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be a child or other "Descendants." issue ; "descendants" of any ancestor shall extend to all persons who must trace their descent through such ancestur; "Persons last "the person last entitled to land" shall extend to the last entuied." person who had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and profits "Assurance." thereof; "assurance" shall mean any deed or instrument (other than a will) by which any land shall be conveyed or transferred at law or in equity (s. 1). Now descent Jn every case descent is to be traced from the purchaser, son°hist™ntiE, and to the intent that the pedigree may never be carried fur- uiiiess pro'^ed ti>»t ther back than the circumstances of the case and the nature of the title shall require, the person last entitled shall be considered to have been the purchaser, unless it shall be proved that he inherited, in which case the descent is to be traced {not stopping at any person proved to have in- herited) until some person is reached who is not proved to have inherited, who will be the purchaser (s. 2). See Ingilby Y.Amcotts, 2 Jur., N. S. 556; comp. Muggleton y. Barnett, 2 H. & N. 653, post, p. 188; and see Ld. St. Leonards' R. P. St. 267-9, 2nd ed., and the observations of Mr. J. Williams on this case. Real Property, Appendix A, p. 447 et seq. In. Cooper V. France, 14 Jur. 214, it was held, that where one of two coparceners died seised and intestate leaving a son, her share descended upon her son, and that the descent should not be traced beyond the mother up to the ancestor from whom the estate descended upon the coparceners. See Paterson v. Mills, 15 Jur. 1 ; J. Wms. R. P., App. B., p. 453. It was held, also, on this section, that where land descended upon the son from his father, who was illegitimate, and the son died seised, intestate and without issue, his heirs ex parte materna were excluded, and the land escheated. Doe v. Blackburn, 1 Moo. & R. 547. 'J'he decision would have been the same under the common law. See the reporter's Purchaser. note, and 4 Jur., N. S., Pt. 2, 134, 180. But such a result is now prevented hj the operation of the 22 & 23 Vict. c. 35, Descent before and under 3^4 fFill. 4, c. 106. 183 enacting that where there shall he a total failure of the heirs of the purchaser, or where any land shall be descendible as if an ancestor had been the purchaser thereof, and there shall be .a total failure of the heirs of such ancestor, the descent shall be traced from the person last entitled to the land as if he had been the purchaser thereof (s. 19); and this sec- tion is to be read as part of the 3 & 4 Will. 4, c. 106 (s. 20). The title to land in England being determined by English law, a person not bom in wedlock, though legitimate by the Heir must bo so law of the country where he is domiciled (Scotland, for EngUshLw. example), byreasonof the subsequent marriage of his parents, cannot inherit land in England as heir to his father {Doe v. Vardill, 2 CI. & Fin. 571); nor, in such cases, can the father inherit as heir to his son under s. 6, post. He Don, 4 Drew. 194. Where males and females are in equal degree in the line of Canons of descent, descent, for instance, sons and daughters, and the land is not Males inherit subject to any special custom, as gavelkind or borough Eng- ^ ""^ °™" ^' lish, the sons are first entitled and successively in the order of birth, but the daughters are entitled together and equally. This was the rule before the act (2 Blac. Com. 212), and is not altered by it. All the lineal descendants in infinitum represent their Lineal descend- ancestor, and stand in the same position with regard to their representltacMtor. right of inheritance as he would have done. Thus, on the death of a grandfather, his grandchildren, being the children of his eldest son, stand before their uncles and aunts, the grandfather's younger children. 2 Blac. Com. 216. This rule also is not affected by the act. Formerly, if a person devised to his heir, or to the person Heir takes by who was his heir, the latter took by descent as the preferable S^Sa'to Sm. title, and not by purchase. Co. Lit. 22 b. Now, the heir in such cases will take as a purchaser, and not by descent, under a devise by a testator dying after the 3 1st December, 1833 (s. 3). See Davies v. Kirk, 2 K. & J. 391 ; Buchanan v. Harrison, 1 J. & H. 662. Formerly, under a limitation by the settlor to himself in Limitation sy fee he was in of his old estate, and if that was by descent, leu"" '° ^^' he was not such an ancestor from whom the descent could be traced generally. Thus, if he was in by descent ex parte materni, and died intestate, his heir ex parte materna was entitled. Nanson v. Barnes, L. R., 7 Eq. 2.50. Now, under a limitation contained in any assurance executed after 31st December, 1833, by the grantor to himself or his heirs, he will take a new estate as a purchaser, and is not in of his old estate (s. 3). Formerly, under a limitation or devise by a person not Limiiatiouto 186 Estates in Fee. person as heir of ancestor. Descent from brothers or sisters. Ancestor may be heir to issue. Paternal and maternal an- cestors. Half blood. Possessio/ratris. Descent through attainted person. being the ancestor, to the heirs or heirs of the body of another, suoh heirs or heirs of the body took by purchase. See Fearne, Con. Rem. 80; Mandeville's Case, Co. Lit. 26 b; Wills V. Palmer, 5 Burr. 2615 ; Eoe y. Quartley, 1 T. E. 630 ; Wright v. Vernon, 7 H. L. C. 35. Now, under a similar limitation in assurances executed after the 31st De- cember, 1833, and in wills of testators dying after that day, the descent is traced as if the ancestor named in such limi- tation had been the purchaser (s. 4). See Sec. 12, post. Formerly, brothers and sisters claimed immediately through each other. 2 Blac. Com. 226 ; Kynnaird v. Leslie, L. R., 1 C. P. 389. Now the descent is traced through the parent (s.5). Formerly, the inheritance might lineally descend but not ascend (Lit. 3; Co. Lit. 10 b), except in the collateral line {ib. 11 a), so that the father could not take as heir to his son. lb. Now, every lineal ancestor is capable of being heir to any of his issue following next in order after the issue of such issue, so that a father is preferred to a brother or sister, and a more remote lineal ancestor to any of his issue, unless such issue happens to be a nearer lineal ancestor or his issue (s. 6). See Re Don, 4 Drew. 194, ante, p. 185. Ancestors by the father's side are preferred to those by the mother's side, and male paternal ancestors to female paternal ancestors, and male maternal ancestors to female maternal ancestors (s. 7). With respect to paternal and maternal ancestors, the mother of a more remote male ances- tor and her descendants is preferred to the mother of a less remote male ancestor and her descendants (s. 8). See 2 Blac. Com. 238. Formerly, relations by the half blood could not succeed as heirs to each other, except in certain cases circuitously. See Lit. s. 8. Hence, where an eldest son and daughter by one wife, and a younger son by another wife, were living, a,nd an estate in fee descended from the father on the eldest son, who died seised, his sister succeeded, for in such case the rule was possessio/ratris facit sororem esse hceredem; but if the eldest son did not die seised, the descent was traced from the father, and the younger son was heir. lb.; Buchanan v. Harrison, 1 J. & H. 662. Now .persons are capable of inheriting from their relations by the half blood immediately after a relation in the same degree of the whole blood, and the issue of such relation, where the common an- cestor is a male, and next after such ancestor if a female (s. 9). See 1 Byth. Couv. by Sweet, 146, n. {a); J. Wms. R. P. 109. As already mentioned, ante, p. 168, an attainder bad the eifect of preventing descent being traced througli the Descent before and under 3^4 Will. 4, c. 106. 187 attainted person; this is now altered (s. 10); but the act does not apply to descents taking place on the death of any pei-sondyingbefore the 1st January, 1834(s.ll). Kynnaird V. Leslie, L. E., 1 C. P. 389. Where any assurance, executed before the first day of Limitations made January, 1834, or the will of any person who shall die before Januaryl'isai to the same day, shall contain any limitation or gift to the heir the heirs of a per- or heirs of any person, under which the person or persons shaiitaSe'eS answering the description of heir shall be entitled to an as if the act had ,. 1^1,1,1 1 ij not been made. estate by purchase, then the person or persons who would have answered such description of heir if the act had not been made, shall become entitled by virtue of such limitation or gift, whether the person named as ancestor shall or shall not be living on or after the said day (s. 12). It will be observed, that the act has a twofold operation, Twofold operation first, in altering the root of descent from the person last seised °' ""^ '^'• to the person last entitled, who is not proved to have inhe- rited; secondly, in altering, in some cases, the rules of inhe- ritance, as, for instance, in the important case of making the father heir to the son in default of issue of the latter. It sometimes happens that, on the death of a person, his Presumptive heir. presumptive heir (for instance, a brother) becomes entitled; whose estate, however, becomes devested on the birth of a nearer heir, as where the deceased brother leaves his widow enceinte, and a child is afterwards born. In such cases the presumptive or intermediate heir is entitled to the rents Bight to rents accruing between the time of such death and the birth of Sh'T'"^'"" the nearer heir, whether such rents have actually been re- heir. ceived or not. Richards v. Richards, John. 754 ; comp. Goodale v. Gawthorne, 2 Sm. & G. 375. Lands of gavelkind tenure descend to all the sons equally; oaverkind. if there are no sons, to all the daughters equally. Lands of this tenure are rarely to be met with out of Kent, and there the presumption is, until the contrary is shown, that all lands are of this tenure. Bac. Ab. Gavelk. B.; ib., Descent, D. The custom extends to collaterals. Thus, on the death of Custom extends one brother, intestate, all his brothers will succeed; and if '''™"»ts™'a- any brother is dead, his children will be entitled, according to the custom, as representing him and taking his share. Clements v. Scudamore, 1 P. W. 65; Hook v. Hook, 1 H. & M. 43. The husband is entitled to curtesy on the death curtesy. of his wife, seised of gavelkind lands, whether he had issue or not; but only to a moiety; and this right ceases on his marrying again. And the wife of a husband dying seised is Dower, also entitled to dower of a moiety; but only so long as she continues unmarried and chaste. Bac. Ab. Gavelk. A. Lands of this tenure may be devised to the heir at common Devise of. 188 Estates in Fee. Conveyance of. Castomary descent. la-s^ as persona designata. Thorp v. Owen, 2 Sm. & G. 90; Sladen v. Sladen, 2 J. & H. 369. They may also be con- veyed by a tenant in fee, by feoffment, at the age of fifteen. 2 Blac. Com. 84 ; see 8 & 9 Vict. c. 106, s. 3. Borough Engush. Lands held by borough English tenure descend on the youngest son (Lit. s. 165), or, if he be dead, to bis youngest son, for the custom prevails in the case of lineal descendants. Bac. Ab. Bor. Eng. As to collaterals, see Rider v. Wood, 1 K. & J. 644. The 3 & 4 Will. 4, c. 106, applies to lands of gavelkind or borough English tenure or other customary tenure (s. 1). The extent, however, to which the statute has altered the law of customary descent existing prior to the statute is a matter which does not appear to be very clearly settled. Possibly the intention of the act as to such lands was to lay down the rules by which the purchaser, or person from whom the descent was to be traced, was to be ascertained, but that when once he was found, the descent was to be to his heir according to the custom, and that in the event of any coniiict between the custom and rules of descent as existing before but modified by the act, the latter should prevail. For instance, in the case of borough English lands, that, in. the event of an intestacy, the person last entitled, who was not proved to have inherited, should be found ; that when found, his youngest son should inherit according to the custom. The validity of the custom to this extent, notwith- standing the act, is admitted, for the act has introduced no new rule at variance with the custom in this particular. In Muggleton v. Barnett (2 H. & N. 653), however, much greater effect was given to the custom, and the court held, that where by it the estate went to the heir of the person last seised, the custom should prevail to the fullest extent, and that the heir of the last purchaser, according to the letter of the act, should not take, as he was not the heir of the person last seised. See J. Wms. R. P. 96, and App. A,. 447; Sug. R. P. St. 271. Absolute OTvner- stdp. Restrictive con- ditions void. Incidents of Estates in Fee.] Tenant in fee is practically absolute owner (though theoretically he holds of some lord or the crown), and can deal with the estate in any way he thinks fit, as by sale, mortgage, demise, devise, &c., though originally it could not be conveyed without the lord's consent (2 Bl. Com. 57); neither, as will be seen, could it be devised {post, tit. "Wills.") Now, any condition attempting to fetter the power of disposition of a tenant in fee is simply void. Bradley v. Peixoto, 3 Ves. 324. See further, as to estates in fee, Sec. 3, post, p. 200, and tit. " Wills." Estates Tail. 189 Sec. 2. — Estates Tail. Estate Tail generally .. 189 Definition . . .. 189 What may he entailed . 189 Creation of Estate Tail . . 189 Words " Heirs of the lody" 189 General — Special . . 189 Male — Female . . 190 After possibility of Issue extinct ,. 190 Ex prm-isione viri .. 190 Children — Issiie , , 190 Descent of .. . . . . 191 Follows Limitations Dignities Barring the Entail by Fine and Recovery . . ., Fee conditional at Com- mon Lam Statute de donis Taltarum's Case Fine — Recovery Both founded on ficti- tious Actions Deeds leading and de- claring Uses . . Fines and Recoveries Abo- lition Act, 3^4 Will, i, c. 74 Definition of Words . . Power to bar Entails . . Tenants in Tail after possibility of Issue extinct 191 191 191 191 191 192 192 192 192 192 193 193 193 Fines and Recoveries Abo- lition jlci— continued. Tenant in Tail re- strained by Statute. . 193 Tenant in Tail ex pro- visione viri .. .. 194 Consent of Protector . . 194 Married Woman Pro- tector .. .. .. 195 Specially named .. 1 95 Protector — Lunatic, Traitor, Felon .. 196 Base Fee .. . . 196 Protector uncontrolled . 197 Voidable Estates . . 197 Base Fee united with Reversion .. ., 197 Form of Disposition . . 197 Will or Contract in- operative .. .. 197 Inrolment .. .. 198 When Tenant in Tail must execute . . 198 Consent by Protector, how given .. .. 198 Not retocahle .. .. 198 Jurisdiction of Equity excluded .. .. 198 Banhruptcy . . . . 199 Incidents of Estates Tail . . 200 Restrictions on Aliena- tion void . . . . 200 Cannot be defeated in part only . . .. 200 Keeping down Charges . 200 Estate Tail generally.] An estate tail, as distinguished from an estate in fee, is an estate limited to a person and the Definition. heirs of his or her body. In the strictest sense of the term "tenements," that is, all corporeal and incorporeal heredi- what may be f taments which savour of the realty, also dignities (Co. Lit. *''''"^- 19 b, 20 a), can alone be entailed; and this word alone is used with reference to entails in the statute De donis, cited here- after, ^o«<, p. 191. But in its larger sense othei', even per- sonal, property may be made, to a certain extent, though not strictly, the subject of an entail. Qee post, Ch. V. Creation of an Estate Tail.'] An estate tail general, General. comprising the issue of a person, as A., by any marriage, is 190 Estates Tail. Special. After possibilitj' of issue extinct. Ex provisione viri. Children. Issue. Heirs " of the body." created by a limitation to A. and the heirs of his or her body. Lit. ss. 14, 15. An estate tail special, comprising the issue of A. by a particular marriage onli/, is created by a limitation to A. (where A. is a male) and the heirs of his body begotten upon B.; or to A. (where A. is a female) and the heirs of her body begotten by B.; or (where the limita- tion is to two) to A. and B. and the heirs of their bodies. See Lit. ss. 27, 28. Under these forms of limitation the estate is descendible first in the male line, failing that in the female line. The line of descent, however, may be restricted to males or females. Thus, under a limitation to A. and the heirs male of his body, male descendants alone can in- herit. Lit. ss. 21, 24. Where the limitation is to A. and the heirs female of his body, female descendants alone can inherit. Lit. ss. 21, 22 ; Co. Lit. 24 b. The estate of a tenant in tail after possibility of issue extinct arises where a person is tenant in special tail, but there is no possibiKty of his having issue inheritable uoder the entail; as where an estate is limited to A. and the heirs of his body by a particular wife, and she dies without issue. In such cases A. could not formerly bar the entail by re- covery (14 Eliz. c. 8), and, as will be seen (post, p. 194), cannot now, his estate being reduced practically to that of a tenant for life. The estate of a tenant in tail ex provisione viri arose where a female was tenant in tail of lands of her husband or lands given by any of his ancestors. After her husband's death she could not bar the entail without the consent of the heirs next entitled. 11 Hen. 7, c. 20; see post, p. 194. The word "heirs" is material in a deed, and indicates an estate of inheritance, distinguished, however, from a fee by the addition of the words " of the body." See Co. Lit. 20 a. Therefore a limitation by deed to A. and his children or issue, or the like, only creates an estate for life. lb. 20 b. But a limitation in tail may be created by clear words of reference to another limitation in tail ; as, to A. and the heirs of his body, remainder to B. in manner aforesaid. lb. The words "of the body," or equivalent words, are how- ever essential, though these very words need not be used. lb. Thus a limitation to A. and the heirs which he shall beget on his wife, creates an estate tail. lb. Limitations in a deed to the heir or heir male (in the singular) are not very common. In Dubber v. Trollope, Amb. 457, Eyre, C. J., seems to have considered that a limitation by deed to A. and his heir male would give A. an estate tail male. See Co. Lit. 8 b, n. 4; ib. 20 b, 22 a; Chambers v. Taylor, 2 M. & C. 376; Fuller v. Chamier, L. II., 2 Eq. 682, on a Barring the Entail by Fine and Recovery, 191 will ; and ante, p. 182. See also Rule in Shelley's Case, post, p. 200. As to what words create an estate tail in wills, see tit. " Wills." Descent of.] The descent of an estate tail diiFers from fohows iimita- that of an estate in fee chiefly in this, that the limitations, ''°'^' whether in tail general, special, male or female, must be followed, and the estate cannot ascend nor go to the collateral heirs of the tenant in tail, who are not in the line of limita- tion. With these differences, the devolution of an estate tail is like that of an estate in fee, the tirst donee in tail being the purchaser from whom the descent is to be traced. Thus, under an ordinary limitation to A. and the heirs of his body, his eldest son and his issue take; failing that son and his issue, his second son and his issue, and so on ; failing sons and their issue, his daughters take ; and, if more than one, equally, and their issue. See J. Wms. R. P. 99. It may be observed, that the limitation of titles (down to Dignities, and including that of a baronet) is for the most part the same as that of an estate tail male, see ante, p. 177. Barring the Entail by Fine and Recovery. '\ At com- a fee conditioniii mon law there was strictly speaking no estate tail but an '""'™™™ ^• estate in fee, conditional on the tenant in fee having an heir of the body capable of inheriting (Litt. s. 13) ; and as soon as such an heir was born, the condition was considered to be performed, and, by the common law, the estate became an estate in fee absolute to this extent, that it could be aliened. If, however, there was no issue on the death of the donee in tail, or such issue afterwards failed, the land reverted to the donor if it had not been aliened. See Co. Litt. 19 a. By the celebrated statute De donis (13 Edw. 1, c. 1), some- &\s.tate De cUmU. times called the Statute of Westminster the Second, this in- terpretation of the common law was declared to be contrary to the intention of the donor, and it was in effect enacted, that there should be no such right of alienation on the birth of issue, but that in such case the land should in due course descend to the issue, and in default or failure of issue should revert to the donor. The judges, however, were opposed to the principle of perpetuities which would have been established had this statute remained in full force, and, as observed by Lord Coke, about the twelfth year of Edw. 4, the judges on con- sultation had among themselves resolved that an estate tail might be docked and barred by a common recovery, and that it was not within the restraint of the perpetuity made by the said act of 13 Edw. 1. Mildmay's Case, 6 Rep. 40, b.. 192 Estates Tail. Taitarum's Case. 1st resolution. In Taltarum' s Case (Year Books, 12 Edw. 4, c. 19), which was oue of the decisions on the subject of the Effect of recoveiy. effect of a recovery, it was held by the court, while recog- nizing the general rule (the result of the deliberation of the judges referred to by Lord Coke) as to the effect of a re- covery suffered by a tenant in tail in possession, that a recovery by a tenant in tail out of possession had not the effect of barring the estate tail. Of fine. An estate tail might also have been barred by a fine, so far as regarded the issue in tail and the remainders over, in certain cases, but a recovery was more effectual, for, as a general rule, it barred the reversions and the remainders over. Fines and recoveries were both founded on fictitious actions, the former being compromised, and the latter brought to a termination by arrangement between the parties. Both stood on the principle of admission, namely, of the right being in another, and were, in effect, forms of assurance, and were judicially noticed as such. The uses of fines and recoveries were declared either by a deed executed previ- ously, which was called the deed leading the uses, or sub- sequently, which was called the deed declaring the uses. Stapilton V. Stapilton, 1 Atk. 17. As both have now been abolished upwards of thirty-six years by the statute presently noticed, it has been considered unnecessary in a work of this nature further to enter into a consideration of them. For the learning on the subject the reader is referred to a most valuable note by Mr. Hargrave, Co. Lit. 121 a, n. (1) ; 5 Cruise, Digest, 63 et seq.; lb. 268 et seq.; Smith's Comp. of the Law of Real and Personal Property, pp. 878 et seq., 912 et seq., and First Report of Real Property Commis- sioners, cited Shelford, R. P. St. 320. Of course questions on the validity or operation of fines or recoveries may still arise. See Anderson v. Anderson, 30 Bea. 209 ; Life As- surance of Scotland v. Siddal, 3 D., F. & J. 58 ; Davies V. Lowndes, 7 Sc. N. R. 141 ; Doe d. Daniel v. Woodroffe, 2 H. L. C. 811; and a few other cases decided since the act was passed, collected in Fisher's Com. Law Dig., tit. " Fine and Recovery." Cases upon the subject are, however, of not very frequent occurrence. Foimdecl on flC' tltious actions. Deeds leading and declaring uses. 3 & 4 wm. 4, c. 74. Fines and Recoveries Abolition Act.'\ — The act for "the Abolition of Fines and Recoveries and for the Substitution of more simple Modes of Assurance," is the 3 c& 4 "Will. 4, c. 74, which does not extend to Ireland, except where ex- pressly mentioned (s. 92). But an act was subsequently passed for Ireland, the 4 & 5 Will. 4, c. 92, which in sub- Fines and Recoveries Abolition Act. 193 stance corresponds with the English act, with the exceptions principally that a few sections, for the most part relating to copyholds and lands in ancient demesne, are omitted. See Shelford, E. P. St. 420, n. (/). By the interpretation clause, " lands " extends to manors, advowsons, rectories, messuages, lands, tenements, tithes, rents and hereditaments, corporeal or incorporeal, of any tenure except copyholds, and to them if accompanied by some expression denoting copyholds; "estate" extends to equitable as well as legal estates and any interest therein, and money subject to be invested in the purchase of lands ; " base fee " means that estate into which an estate tail is converted, where the issue in tail are barred, but not those in remainder; "estate tail," in addition to its usual meaning, means a base fee into which an estate tail shall have been converted ; " actual tenant in tail " means the tenant of an estate tail which shall not have been barred, and that although the estate tail may have been divested or turned to a right; "tenant in tail" means, not only an actual tenant in tail, but also a person whose estate tail has been converted into a base fee ; "tenant in tail entitled to a base fee" means a person entitled to a base fee or to the ultimate beneficial interest in a base fee ; " money subject to be invested in the purchase of lauds," includes money, whether raised or to be raised, and whether the amount thereof be or be not ascer- tained, and securities for the same, and the lands to be so purchased shall extend to copyholds and lands of any tenure in Ireland or elsewhere, if within the scope of the trust directing or authorizing the purchase ; " person " extends to a body politic, corporate or collegiate, and includes females ; "settlement" comprises every assurance made or to be made, whether by deed, will, private act of parliament or other- wise; and appointments in exercise of powers in settlements shall be considered as part of such settlements; and settle- ments made by will shall be considered as made at the death of the testators (s. 1). The statute next enacts, that no fine shall be levied or recovery suffered after the 31st December, 1833, with certain now immaterial exceptions (s. 2). Then, after several preliminary sections (3 to 15), providing principally for the remedying and making good in various particulars defects in existing fines and recoveries, it is enacted, " that after the 31st December, 1833, every actual tenant in tail, whether in possession, remainder, contingency or other- wise, shall have full power to dispose of /or an estate in fee simple absolute, or for any less estate, the lands entailed as against all persons claiming the lands entailed by force of w. o Definition of principal words. " LandB." ' Base fee." ' Estate tall." " Actual tenant in tail." * Tenant in tail.' " Tenant in tail entitled to a base fee." "Money subject to be invested iu land." "Person." *' Settlement." Power, after the 31st of December, 1833, to dispose of lands entailed in fee simple or for a less estate, saving the rights of certain per- sons. 194 Estates Tail. Female tenant in tail ex provisione. Tenants in tail after possibility, or restrained by statute. Power to enlarge ijase fees. Expectancies. Dispositions by ■way of mortgage. Consent of pro- tector. any estate tail which shall be vested in or might be claimed by, or which but for some previous act would have been vested in or might have been claimed by, the person making the disposition, at the time of his making the same, and also as against all persons, including the king, his heirs and suc- cessors, whose estates are to take effect after the determina- tion or in defeasance of any such estate tail; saving always the rights of all persons in respect of estates prior to the estate tail in respect of which such disposition shall be made, and the rights of all other persons, except those against whom such disposition is by this act authorized to be made" (s. 15). A disentailing deed by a tenant for life has no operation under the act. Slater v. Dangerfield, 15 M. & W. 263. But if a person be in fact tenant in tail, and exe- cutes for value as tenant for life a deed operative as a disen- tailing deed, the entail will be barred. Evans v. Jones, Kay, 29. The power of disposition by a woman tenant in tail ex provisione viri, under settlements made before the act, is not to be exercised by her, except with such assent as, under the 11 Hen. 7, c. 20, would have rendered valid a fine or recovery by her (s. 16) {ante, p. 190) ; and (except as to lands comprised in such settlements) the act of 11 Hen. 7, c. 20, is repealed (s. 17). See Curtis v. Price, 12 Ves. 97; Watkins V. Lewis, 1 R. & My. 390; Rochfort v. Fitz- maurice, 2 Dr. & War. 19. The act does not authorize a disposition by tenants in tail after possibility of issue extinct, or by tenants in tail re- strained from barring their estates tail by the 34 & 35 Hen. 8, c. 20, or by any other act (s. 18). The act of Hen. 8 referred to extended only to estates tail granted by the crown for services. Perkins v. Sewell, 1 W. Blac. 654 ; see D. of Grafton v. Lon. Sf Bir. R. Co., 5 B. N. C. 27. Persons who would have been actual tenants in tail of estates if they had not been converted into base fees (ante, p. 196), may dispose of such lands so as to convert them into fees simple absolute, but not as against estates prior to their own («• 19)- .... Issue inheritable in tail are not to bar their expectancies (s. 20). By the 8 & 9 Vict. c. 106, s. 6, contingent, execu- tory and future interests may be disposed of, but not so as by force of that act only to defeat or enlarge an estate tail. The 21st section relates to dispositions by tenants in tail by way of mortgage. See tit. " Mortgage." The statute then provides for the consent of the protector being given. When there shall be a tenant in tail and there shall be subsisting in the same lands under the same settle- Fines and Recoveries Abolition Act. 195 merit any estate for years determinable on the dropping of a life or lives, or any greater estate (not being an estate for years) prior to the estate tail, then such owner of the prior estate, or the first of such estates if more than one, shall be the protector of the settlement ; and estates by the curtesy or by way of resulting use or trust are within this section (s. 22). "As the old tenant to the prcecipe could not be preserved under the new plan, the act creates a protector of every settlement whose concurrence is required in barring estates in tail in remainder, in order to preserve under cer- tain modifications the control of the tenant for life over the remainderman." Sug. Ven. & Pur. p. 466. Where there is a tenant jn tail in possession and a tenant in tail in reversion, who is protector. the former is protector. Re Bleioitt, 6 D., M. & Gr. 187. Where two or more persons shall be owners under a settle- Joint ownere. ment of a prior estate, each of them shall be the sole pro- tector as to his share (s. 23). See TValcott v. Bloomfield, 4 Dr. & War. 211. Where a married woman would, if single, be the protector Marriod woman in respect of a prior estate, which is not settled to her sepa- p™''^'^'"'^- rate use, she and her husband shall in respect of such estate be the protector ; but if such prior estate shall have been settled to her separate use, then she alone shall be the pro- tector (s. 24), and can consent without her husband. Keer V. Brown, Johns. 138. Section 25 relates to estates eon- firmed or restored by settlement, and to the protectorship in such eases. A lease at a rent created or confirmed by a Lessee at a rent settlement does not confer a protectorship (s. 26). No "°t <» iJ= P^tecior woman in respect of her dower, and no bare trustee, heir, noraowress; executor, administrator or assign shall be the protector JJeh-l'execu'torOT (s. 27), with the exception in certain cases of a bare trustee admiuistrator. under then existing settlements (s. 31). See Buttanshaw V. Martin, Johns. 89. When a person is excluded from being protector by the Protector in cer- operation of sects. 26 or 27, the person (if any) who would '^'""^i""- be protector if the excluded estate did not exist is to be pro- tector (s. 28). Sects. 29 and 30 provide who shall be the protector in the cases of estates under settlements, and of remainders and reversions having been disposed of at the time of the passing of the act or being disposed of on or before the 31st December, 1833. Any settlor entailing lands may appoint by the settlement Power to any any number of persons in esse, not exceeding three, and not theprotecwr."'"* being aliens, to be protector of the settlement in lieu of the person who would have been the protector if this clause had not been inserted, and either for the whole or any part of the period for which such person might have continued pro- o2 196 Estates Tail. In cases of lunacy, the Lord Chan- cellor, or in cases of treason or felony, &c. the Court of Chan- cery to be the pro- tector. ■Where protector he must consent though there is an actual tenant in tall. Protector where base fee. tector, and by means of a power to be inserted in such set- tlement to perpetuate, during the whole or any part of such period, the protectorship of the settlement in any one person or number of persons in esse, and not being an alien or aliens, whom the donee of the power shall think proper by deed to appoint, not exceeding three. Every deed of appointment and relinquishment of office shall be void unless inroUed in Chancery within six calendar months after the execution thereof. The person who but for this clause would have been sole protector may be one of the persons to be appointed protector, and shall act as sole protector in certain cases (s. 32). If any protector shall be lunatic, idiot or of unsound mind, whether found such by inquisition or not, the Lord Chan- cellor of Great Britain shall be the protector; or if any pro- tector shall be convicted of treason or felony, or if any per- son not being the owner of a prior estate under a settlement, shall be protector of such settlement, and shall be an infant, or if it shall be uncertain whether such last-mentioned per- son be living or dead, then the Court of Chancery shall be the protector ; or if any settlor entailing the lands shall in the settlement declare that the person who as owner of a prior estate under such settlement would be entitled to be protector of the settlement, shall not be such protector, and shall not appoint any person to be protectox- in his stead, then the Court of Chancery shall be the protector ; or if in any other case where there shall be subsisting under a set- tlement an estate prior to an estate tail under the same set- tlement, and such prior estate shall be sufficient to qualify the owner thereof to be protector of the settlement, and there . shall happen at any time to be no protector of the settlement as to the lands in which the prior estate shall be subsisting, the said Court of Chancery shall, while there shall be no such protector, and the prior estate shall be subsisting, he the protector of the settlement (s. 33). See Re Blewitt, 6 D., M. & G. 187, as to lunatics ; Re Wainewright, 1 Ph. 261, as to felons. Where there is a protector of a settlement, his consent is requisite to enable even an actual tenant in tail to create a larger estate than a base fee (s. 34). By the protector being a consenting, not a conveying, party, there is no risk of the incumbrances of the tenant in tail being let in to the prejudice of a life estate. See 1 Eeal Pr. Eep., cited Shelf. E. P. St. 359. Where an estate tail shall have been converted into a base fee, the consent of the protector shall be requisite to enable the owner to acquire the fee under the act (s. 35). Fines and Recoveries Abolition Act. 197 The protector, in exercising his power of consent, is to Protector uncon- he under no control whatever, and is not to be deemed a trustee in respect of his power to consent (s. 36); and the rules of equity in relation to transactions between donees and objects of a power (see tit. " Powers") shall not apply- as between the protector and tenant in tail (s. 37). See Banks V. Le Despencer, 11 Sim. 508, 527. A voidable estate created by a tenant in tail in favour of voidable estates. a purchaser for value will be conflrmed by a subsequent disposition (other than a lease not requiring inrolment) of the tenant in tail under the act, with the consent of the protector (if any), but not as against a purchaser, without notice. Where there is a protector who does not consent, the confirmation operates as far as it can without such con- sent (s. 38). It is observed by Mr. Hayes (Intro. Conv. 160, 5th ed.), that a conveyance by tenant in tail to his own use is a disposition within this section ; and see Doe v. Michelo, 8 T. E. 211 ; Lloyd v. Lloyd, 4 Dr. & War. 374, as to the operation of a fine in confirming prior voidable assurances. Where a base fee is united with the immediate reversion. Base fee united it will not be merged, but enlarged to as great an estate as ^"' '■^^'^""•°- the tenant in tail could have created with the consent of the protector (if any) if the remainder or reversion had been vested in another (s. 39). Where formerly tenant in tail with the immediate reversion in fee levied a fine, the estate tail was merged and the reversion became an estate in pos- session. E. Shelburne v. Biddulph, 6 B. P. C. 356. The object of sect. 39 is to prevent the operation of this rule, which would let in charges attaching to the remainder or reversion, and compel a title to be made to such remainder or reversion. 1 Real Prop. Eep. 28, cited Shelf. R. P. St. 363. Every disposition of lands under the act by a tenant in Tenant in tali to tail thereof shall be effected by some one of the assurances ™uon by deed as (not being a will) by which such tenant in tail could have « seised in fee, made the disposition if his estate were an estate at law in or contract; and fee simple absolute : provided that no disposition by a tenant "^^^^^^^ her in tail shall be of any force either at law or in equity, under husband's con- this act, unless made or evidenced by deed ; and that no dis- '^''rrence. position by a tenant in tail resting only in contract either ex- press or implied, or otherwise, and whether supported by a valuable or meritorious consideration or not, shall be of any force at law or in equity under this act, notwithstanding such disposition shall be made or evidenced by deed ; and if the tenant in tail making the disposition shall be a married woman, the concurrence of her husband shall be necessary 198 Estates Tail. When tenant in tail must execute. Disclaimer by trustee. Consent of pro- tector, how given. Kot revocable. Jurisdiction of equity excluded. Money to be laid out In lands to be entailed. to give effect to the same ; and any deed which may be ex- ecuted by her for effecting the disposition shall be acknow- ledged by her as thereinafter directed (s. 40 \ The Court of Chancery, however, may compel the execution of dis- entailing deeds by a tenant in tail as part of or necessary to the performance of a contract. Sug. Stat. 197; see Att.- Gen. V. Day, 1 Ves. sen. 224 ; Lewis v. Duncombe, 20 Bea. 398. No assurance under the act (except leases not exceeding twenty-one years at rack-rent or five-sixths of a rack-rent) will have any operation unless inroUed in Chan- cery within six calendar months after execution (s. 41). A deed not inrolled gives no rights as against the issue in tail if the claims of such issue are prosecuted within the period allowed by the Statute of Limitations. Morgan v. Morgan, L. E., 10 Eq. 99. Inrolment will not of itself reniev a dis- entailing deed effectual to bar the entail, if the deed itself be not an apt and proper deed for that purpose. Where a tenant in tail executed a disentailing deed purporting to be a grant of the estate to A. and his heirs free from all estates tail of the grantor, to the use of A. and his heirs in trust for the grantor, and the deed was inrolled but not executed by A., who subsequently disclaimed, it was held that the dis- entailing deed operated as a grant and not by the Statute of Uses, that it was rendered inoperative by the subsequent disclaimer by the grantee and that the estate tail was not barred. Peacock v. Eastland, L. R., 10 Eq. 1 7. The consent of the protector may be given by the same assurance, or by a distinct deed, to be executed on or before the same day (and inrolled at or before the same time, s. 46) as the assurance (ss. 42, 43). The consent cannot be re- voked (s. 44). A feme covert protector may consent as if she were sole (s. 45). The jurisdiction of equity is excluded both with reference to dispositions by tenants in tail and consents by protectors (s. 47; and see s. 36, ante; and Petre v. Duncombe, 7 Ha. 24). Sections 50 — 54 relate to copyholds, and will be referred to in Chapter III. Sections 56 — 69, and also sections 70 — 73 in part, relate to the estates tail of bankrupts, and will be presently referred to. Sections 70—72 relate to the dispo- sition of entailed money; section 70 repeals the 7 Geo. 4, c. 45, by which formerly money held in trust, to be invested in lands to be entailed, might be discharged from the trust ; by section 71 money, also money to arise from the sale of lands (including leaseholds), which is to be invested in the purchase of lands, so that a person, if the lands were pur- chased, would liiave an estate tail therein, is to be treated and considered as subject to the same estates as the lands Fines and Recoveries Abolition Act. 199 would have been if purchased, and the previous provisions are made applicable, with the pi'oviso that where a disposi- tion is to be made of leaseholds " so circumstanced as afore- said, or of money so circumstanced as aforesaid, such lease- hold lands or money" shall be treated as personal estate; and in the case of bankruptcy, the disposition of such lease- holds or money shall be by deed inroUed in Chancery within six months (s. 71). See Fordham v. Fordham, 34 Bea. 59. Any rule or practice requiring deeds to be acknowledged As to deeds being before the inrolment shall not apply to any deed by this act beforel'miiment. required to be inrolled in the Court of Chancery in England or Ireland (s. 73). Every deed required to be inrolled in the Court of Every deed to be Chancery in England or Ireland, by which lands, or money lands o'r money"^ subject to be invested in the purchase of lands, shall be dis- shaii be disposed posed of under this act shall, when inrolled as required by to take effect as It this act, operate and take effect in the same manner as it ™™\™™' ™' would have done if the inrolment thereof had not been required, except that every such deed shall be void against any person claiming the lands or money thereby disposed of, or any part thereof, for valuable consideration, under any subsequent deed duly inrolled under this act, if such subse- quent deed shall be first inrolled (s. 74). To return to the consideration of the clauses particularly Bankruptcy. relating to bankrupts. The principal clauses of the 3 & 4 Will. 4, c. 74, affecting them, were the 56 to 73, both inclusive, and their effect was, stated shortly, to enable the commis- sioner, under the bankruptcy acts then in force, to do every- thing for the benefit of the creditors, by barring the estate tail of the bankrupt, which he but for his bankruptcy could have done, and by creating the same estates in lieu of the estate tail as he could have done. And all acts of a bank- rupt tenant in tail were made void against any disposition under the act by the commissioner (s. 63). By the 25th section of " The Bankruptcy Act, 1869," 32 & 33 Vict. c. 71, "the trustee" has power (amongst other things) — (4) To deal with any property to which the bank- rupt is beneficially entitled as tenant in tail in the same manner as the bankrupt might have dealt with the same, and sections fifty-six to seventy-three (both inclusive) of the 3 & 4 Will. 4, o. 74, shall extend to proceedings in bank- ruptcy under the act as if those sections were re-enacted in " The Bankruptcy Act, 1869," and made applicable in terms to such proceedings. The other sections of the 3 & 4 Will. 4, c. 74, relating to copyholds, will be noticed post, Chap. III., and those relating 200 Estates by Operation of Rule in Shelley's Case. to deeds by married women will be noticed post, tit. " Hus- band AND Wife." Restrictions on alienatiun void. Cannot tie de- feated in part only. Keeping down charges. Incidents of Estates Tail.'] A tenant in tail cannot, any more than a tenant in fee, be restrained by any condition {Bradley v. Peixoto, 3 Ves. 324), proviso, limitation or otherwise (^Mary Portington's Case, 10 Rep. 35; Foy v. Hynde, Cro. Jac. 696 ; Collins v. Plummer, 1 P. W. 104 ; Mainwaring t. Baxter, 5 Ves. 458) from exercising his right of alienation, unless in those cases in which estates have been granted by the crown to particular families in tail as a reward for services under the 34 & 35 Hen. 8, c. 20, ante, p. 194, or by the country by special acts of parliament, as in the cases of the Duke of Marlborough (5 Anne, cc. 3, 4) and Duke of Wellington (41 Geo. 3, c. 59, s. 6; 54 Geo. 3, c. 161, s. 28). In the case of entails under the statute of Henry, they cannot be barred so long as the reversion is in the crown. See 1 Pres. Conv. 19. In the case of grants by special acts the estates cannot be barred at all, imless of course by some special act passed for that purpose. An estate tail cannot be defeated in part only, and a con- dition to that effect is repugnant and void; it must defeat the whole estate, or it will be inoperative. Corbefs Case, 1 Rep. 206; Mildmay's Case, ib. 414; Seymour v. Vernon, 10 Jur., N. S. 487. Where the estate is incumbered and the tenant in tail is an infant, the rents and profits of the estate ought to be applied in keeping down the interest ot the charges. Bertie v. L. Abingdon, 3 Mer, 560 ; see Burges v. Mawbey, T. & R. 167 ; see Sergison v. Sealey, 2 Atk. 416, corrected in T. & R. 176. An adult tenant in tail, however, is not bound as against those in remainder to keep down charges (Burges v. Mawbey, T. & R. 167) ; but if he has done so, after his death his personal representatives will not be allowed what he has paid out of the estate. Reddington v. Reddington, 1 Ba. & Be. 143. As to tenant in tail paying off charges, see post, tit. " Merger." As to leases by tenant in tail, see tit. " Leases." Sec. Z.— Estates arising by the Operation of the Rule in Shelley's Case. What the. Rule is . . . . 201 Does not affect intervening Interests .. . . . . 201 Applies to Copyholds and Personal Estate .. .. 201 As to I/imitation ieing by may of Remainder only. not shifting Use nor exe- cutory Devise Estate of Freehold .. Limitations by same Instm- Tnent Will — Codicil Power — Appointment 202 202 203 203 203 Estates by Operation of Rule in Shelley's Case. 201 Applies to legal and equita- ble Mitates .. . . 203 Must hoth T>e legal or both equitable . . . . . . 203 Prior Estate expressly or impliedly limited to Life Estate 203 Limitations and Remain- ders to two or more , . 203 Superadded words of Limi- tation . . . . . . 204 Limitation to Trustees to preserve Contingent Re- mainders . . . . . . 204 Limitation to Heirs as Tenants in Common . . 204 Heirs of the Body, meaning Sons or Children .. . . 205 It will be convenient to treat of the well-known Eule in Shelley's Case in this title as the question whether a person takes under a deed or will an estate foi' life, in tail, or in fee, frequently depends upon its application. It has also been discussed in a separate section, being of a special character, although an estate in fee or in tail, when once created by the effect of the rule, does not in any way differ from an ordinary estate in fee or in tail created in any other way. The rule of law, commonly known as the Eule in Shelley's stated. Case, 1 Rep. 93, because it was particularly referred to in that case, although it is of much earlier date (see a learned note, 7 M. & Gr. 941 n. (c)), is, that where in the same instrument there is a limitation to the ancestor of an estate of freehold, and also mediately or immediately a limitation to his heirs ; or a limitation to the heirs of his body (or other words operative to create an estate tail), the word heirs is a word of limitation and not purchase, and the ancestor takes an estate in fee in the first case, and in tail in the second. See Perrin v. Blake, 4 Burr. 2579 ; Watkins on Descents, 194, 4th ed. His estate, however, is subject to the intervening es- Does not affect tales (if any), whether vested or contingent, limited to others. rMt"™'°° '"''' See Fea. Con. E, 33 ; Fickersgill v. Grey, 30 Bea. 352. The rule is the same where the limitation in remainder is to the " heir" (in the singular). Fuller v. Chamier, L. E., 2 Eq. 682. The rule applies to copyholds (Busby v. Green- Copj-hoias. slate, 1 Str. 445), estates pur autre vie {Forster v. Forster, 2 Atk. 259) and personal estate {Butterjield v. Butterfield, 1 Ves. sen. 1 33 ; Garth v. Baldwin, 2 Ves. sen. 646 ; Robinson v. Fitzherbert, 2 B. & C. 127 ; Kinch v. Ward, 2 S. & S. 409 ; Douglas v. Congreve, 1 Bea. 59) ; and with Personal estate. regard to personal estate, if the limitation be to A. for life, remainder to his executors, the effect will be the same, A. will take absolutely. Co. Lit. 54 b ; see Holloway v. Clarkson, 2 Ha. '521 ; Morris v. Howes, 4 Ha. 499 ; Att.- Gen. V. Malkin, 2 Ph. 64 ; Mackenzie v. Mackenzie, 3 Mac. & G. 559. In Herrick v. Franklin, L. E., 6 Eq. 593, V.-C. Giffard Applies to leasc- observed, that "there is no authority for holding that be- Sate!""' ''™°'"^ cause the rule in Shelley's Case applies to real estate it is 202 Estates by Operatio?i of Rule in Shelley's Case. Heirs of the body used ill some special sense. Issue, lieirs male. Executory devise, shifting use. Estate of free- liold. to be applied to personal estate also" (p. 596). This, it is con- ceived, must be understood as meaning that it is not in every case in which the rule applies to real estate, it must neces- sarily apply to personal estate as well. The case of Re Wynch, 5 D., M. & G. 188, which the V.-C. cited as qualifying or overruling Dunk v. Fenner, 2 E. & My. 557, and restoring the rule laid down in Knight v. Ellis, 2 B. C. C. 570, turned simply upon the construction of the word "issue," deciding only that this word is construed differently in limita- tions of real and personal estate, and that although in the former case, following a life estate, it might create an estate tail, in the latter it would not or might not. See also Jackson V. Calvert, 1 J. & H. 235 ; and for other instances of words being held to create an estate tail in realty, but only a life interest in personalty, see tit. " Wills." The doctrine, however, that the Rule in Shelley's Case, as a rule, applies to personal estate is settled. See Butterfield v. But- terjield, and other oases, ante, p. 201 ; 2 Jarm. 308, 534, 535. Where the words " heirs of the body" are used in some special sense, as they frequently are in wills, for instance, as in- dicating children, the rule does not apply. See tit. " Wills." In settlements, also, the context may show that the words " heirs of the body " are to be understood in the sense of children, in which case the rule will not apply, and the parent will only take an estate for life. North v. Martin, 6 Sim, 266. On the other hand, it does apply to real estate, though the words " heirs of the body " may not be used, but words which are in some cases held to be synonymous, as issue, heirs male, ^c, but only in those cases. Griffiths v. Evan, 5 Bea. 241 ; Doe v. Rucastle, 8 C. B. 876. As to personal estate, see supra. So the rule applies where the estate arises by implication; for instance, before the 1 Vict. c. 26, under a gift to A. for life, and if he die without heirs of his body, over. In such cases the rule operates on the principle that there is an implied gift to the heirs of the body, and the limitation is read, to A. for life, remainder to the heirs of his body, and if he die without such heirs, over. See 2 Jarm. 312 ; but see now 1 Vict. c. 26, s. 29. The word limitation in the statement of the rule must, it would seem, be understood in its ordinary sense by way of remainder, and not by way of executory devise or shifting use. Fea. C. R. 276 ; Coape v. Arnold, 4 D., M. & G. 574. See, however, a very able argument contra, 11 Jur., N. S., Part 2, p. 427. The estate of freehold may be pur autre vie, as well as for the life of the grantee or devisee himself (see Low V. . Burron, 3 P. W. 262), and may even be deter- minable upon a contingency, as an estate during widow- hood {Curtis V. Price, 12 Ves. 89; Griffiths Y.Evan, 5 Estates by Operation of Rule in Skellei/'s Case. 203 Bea. 241), and may arise by a necessary implication of law. Pyhus V. Mitford, 1 Vent. 372. The rule requires the Limitattona must limitations to be by the same instrument. Moore v. Parker, S,"""" '"""" Ld. Ray. 37; Doe v. Fonnereau, Doug. 470. A will and wm-codidi. codicil, however, would be considered as one and the same instrument. 2 Jar. Wills, 308. Whether this would be the Powcr-appoiut- case as regards deeds or instruments creating and executing ""'"'• powers, must be considered as still unsettled. See Sug. Pow. 472 ; Fea. C. E. 75 ; comp. Co. Lit. 299 b ; n. by But. 1 Pres. Estates, 324 ; 2 Jar. Wills, 308. The rule applies to Applies to legai equitable as well as legal estates (Spence v. Spence, 12 ^tote'!'"'*'"'' C. B., N. S. 199); but the limitations to the ancestor and Must both be to his heirs or the heirs of his body must either be both legai or both legal or both equitable. Douglas v. Congreve, 1 Bea. 59 ; '^'''"'*'' °- Reynell v. Reynell, 10 Bea. 21 ; Nash v. Coates, 3 B. & Ad. 839 ; Haddelsey v. Adams, 22 Bea. 266. Words expressly confining the estate of the ancestor to prior estate ex- a life estate will not prevent the application of the rule pff^ly u^mxa to {Robinson Y.Robinson, 2 Ves. sen. 225; Thong v. Bedford, lue estate. 1 B. C. C. 313; Anderson v. Anderson, 30 Bea. 209), nor a declaration that the estate for life shall be without impeach- ment of waste (Papillon v. Voice, 2 P. W. 471 ; Jones v. " Morgan, 1 B. C. C. 206), or for the separate use of a mar- ried woman. Roberts v. Dixwell, 1 Atk. 607. Under a limitation to two or more for their lives, with Limitations to remainder to the heir or heirs of the body of one, he will "=^*™'- take an estate in fee or in tail (as the case may be) sub- ject to the other life estates. Thus, under a devise to A., B. and C. in equal shares for their natural lives, with re- mainder to the next lawful heir of A., they are joint tenants for their lives, with remainder to A. in fee. Fuller v. Chamier, L. R., 2 Eq. 682. Under a limitation to A. and B., persons of the same sex, or of different sexes, but so related as not to be capable of contracting marriage with each other, with remainder to the heirs of their bodies, they are joint tenants for life, with several inheritances in tail. Lit. s. 283 ; Ex parte Tanner, 20 Bea. 374. But the same limitation to husband and wife makes them tenants in tail by entireties, and if the limitation be to persons who are capable of marrying, they are joint tenants in tail. 2 Jarm. 333; see Co. Lit. 187 b. Where a term is limited to the husband for life, with Terms of years. remainder to the wife for life, with remainder to the heirs of the bodies of the husband and wife, the term vests in the husband absolutely. Webb v. Webb, 1 P. W. 132; Bartlett v. Green, 13 Sim. 218; see Hunt v. Baker, Fr. Ch. 62. But Peacock v. Spooner,. Fr. Ch. 114, and. Dafforne v. Goodman, ib. 231, are contra, but these may be considered 204 Estates by Operation of Rule in Shelley's Case. Superadded words of liinlta- tiun. Limitation to trustees to pre- serve. To heirs, &c 05 tenants in common. IJmitatloiia in strict settlement. as overruled, or as of no authority except in cases precisely similar. 2 Ves. sen. 660; Bartlett v. Green, sup. If the limitation be such as to give an estate tail, subsequent words of limitation will not vary the effect, as if it be to A. for life, with remainder to the heirs male, or the heirs of the body of A., " and the heirs male of such issue male." The superadded words of limitation are considered as a mere re- petition of the antecedent limitation. Burnet v. Goby, 1 Bar. K. B. 367. So if in such a case, after the limitation to the heirs male or heirs of the body, there is a superadded limitation to "heirs" {general), or "heirs and assigns," or the like, A. will still take an estate tail. Ooodright v. Pullyn, 2 Ld. Ray. 1437 ; Wright v. Pearson, 1 Ed. 119 ; Nash V. Coates, 3 B. & Ad. 839 ; Marshall v. Grime, 28 Bea. 375; Mills v. Howard, 1 J. & H. 733; Toller v. Att- wood, 15 Q. B. 929. It will not affect the application of the rule, that after a life estate there is a limitation to trustees to preserve contingent remainders. Coulson v. Coulson, 2 Str. 1125 ; Measure v. Gee, 5 B. & Al. 910. Neither will the effect of the limitation to the heirs of the body, which prima facie gives an estate tail, be rendered nugatory by words indicating tenancy in common in the heirs of the body, unless the intent of the testator appear to the contrary plainly. See Poole v. Poole, 3 B. & P. 627; Fetherston v. Fetherston, 3 CI. & F. 67, 77. Thus a limitation to A. for life and the heirs of his body as tenants in common {Doe v. Harvey, 4 B. & C. 610; Bennetts. E. Tankerville, 19 Ves. 170; Grimson v. Downing, 4 Drew. 125; Anderson v. An- derson, 30 Bea. 209), or in such shares as A. shall appoint {Doe V, Goldsmith, 7 Taunt. 209 ; Jesson v. Wright, 2 Bli. 1 ; see Jordan v. Adams, 9 C. B., N. S. 483), and for want or in default of such heirs or issue over will give A. an estate tail. But in such cases, if the word issue be used instead of heirs of the body, it would seem that A. wiU not, at all events, as a general rule, take an estate tail. See Doe V. Elvey, 4 Ea. 313. The cases of Doe v. Laming, 2 Burr. 1100; Doe V. Goff, 11 Ea. 668; Gretton y. Haward, 6 Taun. 94 ; Crump v. Norwood, 7 Taun. 362, are scarcely reconcileable with Jesson v. Wright, 2 Bli. 1, sup., and are considered by Mr. Jarman as either overruled or questionable (2 Jar. Wills, 355), and see particularly Ld. Eldon's judgment in the last cited case and Fetherston v. Fetherston, 3 CI. & F. 67. In Montgomery v. Montgomery, 3 Jo. & Lat. 52-4, how- ever, Doe V. Goff and Doe v. Laming seem to have been considered as law by Ld. St. Leonards. A declaration that the limitations are to be in strict settlement, will not pre- vent the application of the rule. Douglas v. Congreve, 1 Bea. 59. Estates for Life. 203 The words "heirs of the hody" are, however, suscep- Hcir« o' "j^e^^»''>'. tible of a more limited meaning if an intention to that effect °"* be clearly expressed, as where the testator himself, so to speak, interprets the words in another sense. Thus, in a devise to A. and his heirs of the body, " that is to say his first, &c., and every other son," the words heirs of the body being used in the sense of sons, A. will take only an estate for life. Lowe v. Davies, 2 Ld. Bay. 1561 ; Goodtitle v. Herring, 1 Ea. 264 ; Green v. Green, 3 De G. & S. 480 ; Fetherston v. Fetherston, 3 CI. & F. 67. So if heirs of the o"- children, body are afterwards referred to as children. North v. Martin, 6 Sim. 266 ; Gummoe v. Howes, 23 Bea. 184 ; Jordan v. Adams, 9 C. B., N. S. 483 ; comp. Roddy v. Fitzgerald, 6 H. L. C. 823. And where the trusts are executory or direc- tory, not complete and final, but leaving some further act to be done, equity will mould them so as to give efiect to the intention, and will direct a life estate to be limited to the first taker, with remainders in fee or in tail (as the case may be). This subject will be considered hereafter. See tit. "Marriage Settlements;" Douglas v. Congreve, 1 Bea. 59. In the index to Fearne on Contingent Remainders, imder " Rule in Shelley's Case," wiU be found a very care- fully prepared table, showing, under a variety of limitations, in what cases the rule does and does not apply. Nature and incidents generally . . . . . . 205 Mxpress, or ty operation of Lam .. ..205 How created .. .. 206 Pur autre Vie .. . . 206 Order to produce cestui que me .. .. 206 General Occvpant .. 206 Special Occupant . . 207 GeneralOccupancy abo- lished 207 Wills Act, 1 Vict. c. 26 207 Mntail of — Barring . . 207 Powers, Rights and Duties of Tenant for Life . . 207 ■ r ..208 Sec. 4. — Estates for Life. of Powers, Rights and Duties of Tenant for lAfe—contA. Sales hy.. 208 Leases hy 208 Tenancy determining hy Death of Tenant for Life 208 Estovers — Pictures . . 209 Title Deeds .. 209 Charges on Estate .. 209 Tenant for Life must keep down Charges . , 209 Repairs .. 209 Tenant hy the Curtesy— Dowress 209 Redeemable Annuity . . 209 Arrears . . 209 Nature and Lncidents of, generally.] Estates for life. Express, or by which are the lowest estates of freehold, arise either by °p™«'°" »""»'• 206 Estate pur autre Vie. How created by deed or will. Order to produce cestui que vie. General occu- pancy. express grant or by operation of law. Of the latter class are the wife's dower estate, the husband's estate by the curtesy (post, tit. " Husband and Wife"), and the estate of tenant in tail after possibility of issue extinct {ante, p. 190). An estate for a person's own life may be either abso- lute or determinable ; for instance, to a widow for life de- terminable on her marrying again. Curtis v. Price, 12 Ves. 89. An estate for life is properly created -in a deed by a limitation to a person and his assigns for his life, with or without impeachment of waste. See tit. "Waste." As already mentioned, however, an estate for life under a deed is created by a simple limitation to A. without adding /or his life. Ante, p. 181. Where the estate is for the life of another person, it is limited to the grantee and his assigns for the life of such other person, who is termed the cestui que vie. The question whether a particular limitation creates an estate for life or some greater estate rarely arises on the construction of deeds, but it not unfrequently does on the construction of wills. See Rule in Shelley's Case, ante, p. 200, and tit. " Wills." Pur autre Vie.] An estate pur autre vie, or for the life of another, is the lowest estate for life, and ceases at the death of the cestui que vie. To obviate the fraud of a tenant pur autre vie continuing in possession after the death of the cestui que vie, it is enacted by the 6 Ann. c. 18, that upon the application of any person having any claim in remainder or expectancy after the death of the cestui que vie, the Lord Chancellor may order the cestui que vie to be produced ; and, if not produced, the cestui que vie shall be taken to be dead. Ex parte Grant, 6 Ves. 512 ; Ex parte Whalley, 4 Euss. 561 ; Re Isaac, 4 M. & C. 11 ; Re Dennis, 7 Jur., N. S. 230. Formerly, where the estate pur autre vie, being a corporeal hereditament, was limited to a person without words of inheritance, and he died in the lifetime of the cestui que vie, as neither his heir (not being named) could take, nor his personal representatives (it being an estate of freehold), the first person who entered, though without any claim of right, was entitled to hold as general occupant. Co. Lit. 41 b. But as there could be no entry upon incor- poreal hereditaments, as rents or rent-charges lying in grant, there could be no general occupant of them (Co. Lit. 46 b); but by the 1 2th section of the Statute of Frauds, 29 Car. 2, c. 3 (which section is now repealed, see post, p. 207), the rent or rent-charge went to the executors or administrators of the tenant for life, though they were not named. Raiv- linson v. Dss. Montague, 3 P. W. 264 (n); Bearpark v. Hutchinson, 7 Bing. 178. Estate pur autre Vie. 207 Under a limitation, however, of the estate, whether cor- Special occupant. poreal or incorporeal, to a person and his heirs, or his heirs, executors and administrators, his heir took and will still take as special occupant, there heing no devisee (Atkinson V. Baker, 4 T. E. 229 ; Doe v. Laxton, 6 T. E. 292 ; Car- penter v. Dunsmure, 3 E. & B. 918), although the estate be equitable {Reynolds v. Wright, 2 D., F. & J. 590 ; see as to incorporeal hereditaments, Hassell v. Gowthwaite, Willes, 505) ; and under a limitation to a person, his executors or administrators, whether of corporeal or, as it would seem, incorporeal hereditaments, the executor will be special oc- cupant. Northen v. Carnegie, 4 Drew. 587, 592. General occupancy was abolished by the Statute of Frauds; General occupancy and a tenant pur autre vie was enabled to devise his estate, '»''°"s'i«A;j, L. R., 3Ch. 711, 714. A tenant for life paying the renewal fines has a lien on the estate for whatever ought to be paid by the remainderman. Jones V. Jones, sup. And the representatives of a tenant for life, who renews but derives no benefit from the renewal in consequence of his death in the lifetime of the original life or lives, will be entitled to be recouped the whole sum paid by him. Harris v. Harris, 32 Bea. 333 — a case of copyholds. So if the tenant for life being cestui que vie, and as such not bound to renew, has nevertheless renewed, the fines and expenses of such renewal will be a charge in his favour on the renewed lease against the remainderman {Lawrence v. Maggs, 2 Ed. 453; Adderley v. Chevering, 2 B. C. C. 658); for the tenant for life cannot be supposed to renew for his own benefit — as, being cestui que vie, the lease and his own interest are co-extensive. Verney v. Verney, Amb. 88. In Bradford v. Broivnjohn, L. E., 3 Ch. 711, the tenant for life had paid the necessary fines for obtaining a renewal of copyholds for years, determinable on lives, and it was held that the remainderman was bound to pay a sum equiva- lent to or representing the benefit he derived from the re- newal as ascertained at the time of the death of the tenant Contribution of Parties. 223 for life, with compound interest at four per cent, from the time of the renewal and simple interest at tlie same rate on sucli principal and compound interest from his death. The principle applicable to cases of this description is very clearly explained in the judgments of the Lords Justices. The representatives of a deceased tenant for life who has Laches. renewed must not delay making their claim in respect of the renewal fines. Ainslie v. Harcourt, 28 Bea. 313. On a renewal by a remainderman the tenant for life must Eemainderman give security for the benefit he derives from the renewal, SaJgfs!^™'""' so that his estate may make good his proportion of the capital to the remainderman. Jones v. Jones, 5 Ha. 465; Hudleston v. Whelpdale, 9 Ha. 786. There is no doubt a difficulty as to this; for the tenant for life may become insolvent. See per Lord Eldon, White v. White, 9 Ves. 558 ; and Jones v. Jones, sup. Where a sum is directed to Tenant for ufe be set apart out of rents for renewal, and the tenant for life "-"'"ins to renew. omits to renew, and after his death the remainderman renews, the latter is entitled as against the estate of the deceased tenant for life to a proportionate part in respect of his in- terest of what would have been a fair renewal fine in his lifetime. Colegrave v. Manhy, 2 Russ. 238; Bennett v. Colley, 2 M. & L. 225. The application of the principle may sometimes be a matter of difficulty. See Lewin on Trusts, 302 ; cons. Bradford v. Brownjohn, L. R., 3 Ch. 711, the principle of which would seem equally applicable in the case of a remainderman advancing the fine as well as the tenant for life. An infant who is jointly interested with another who re- infant jointly news is not bound by the renewal unless he agree to it, but '^'^''^stea. if he do so he must contribute his proportion of the expenses of renewal. Exp. Grace, 1 B. & P. 376. In cases where Married woman, infants and married women are under obligations to renew, the renewal may be made under the direction of the Court of Chancery. 11 Geo. 4 & 1 Will. 4, c. 65, ss. 16, 17. For whose Benefit it enures.] A renewal by whomsoever Enures for benefit effected enures for the benefit of all interested in tlie pro- "' *" ""''■estea. perty, as well as of the party renewing. Rawe v. Chichester, Ami). 715, in which the earlier cases are cited ; Owen v. Williams, lb. 7S4; Tanner y. Elworthy, 4 Hea. 487; Clegg V. Fishwick, 1 Mac. & G. 294. The rule is the same if the original lease has expired, and then a fresh lease is obtained. Pickering v. Vowles, 1 B. C. C. 197. So where during the continuance of the original lease a reversionary lease is ob- tained. Taster v. Marriott, Amb. 668 ; Rakestraw v. -224 For whose Benefit Renewal enures. One of several renewing. Purchase of lessor's interest to obtain renewal from superior landlord. Sale of benefit of renewal. Tenant for life with general power of appoint- ment. Renewal im- practicable. Brewer, 2 P. W. 511. So a renewal by one of several in his own name enures for the benefit of all. Palmer v. Young, 1 Ver. 276 ; see Jackson v. Welsh, LI. & G-., t. Plunk. 346. And, as a general rule, a renewed lease is sub- ject to all the equities affecting the old lease (^Edwards v. Lewis, 3 Atk. 538), and these equities will be enforced against purchasers with notice. Parker v. Brookes, 9 Ves. 583. The rule equally applies where the tenant for life is an under-lessee, and purchases the interest of his immediate lessor, and then obtains a renewal from the superior landlord. Giddings v. Giddings, 3 Russ. 241 ; see Randall v. Rus- sell, 3 Mer. 190; Hardman v. Johnson, ib. 347. On a sale by the tenant for life of the right to a renewal, the purchase- money is subject to the same equities as the lease if renewed would have been. Owen v. Williams, Amb. 734. If a tenant for life with a general power of appointment renews, but does not exercise his power or the appointment does not take effect, the renewal enures for the benefit of those in re- mainder. Brookman v. Hales, 2 V. & B. 45. It has already been mentioned, that if a renewal be im- practicable, and there is a fund reserved for the renewal, it belongs absolutely to the tenant for life, if it has been set apart out of his income. Morres v. Hodges, 27 Bea. 625 ; ante, p. 116. Long terms of years. May commence in futuro. Why created. Sec. 2. — Terms of Years. Long Terms 224 Satisfied Terms .. . . 224 Long beneficial Terms . . 225 Freehold or Leasehold . . 225 Ordinary Leases .. .. 225 Limitations in Fee or Tail . 225 Satisfied terms. Terms are of two kinds, viz., long terms, for instance, for 500 or 1,000 years, and terms which rarely exceed 99 years, and are created by lease. A term of years may be made to commence in futuro, and is in this respect unlike a freehold estate. 2 Blac. Com. 143. With regard to long terms, they are in general created for the purpose of enabling trustees or others to raise (usually by way of mortgage) portions or other monies when required for the purposes for which the terms were created, or to secure the payment of jointures, rent-charges or the like; and there is, in general, a proviso for cesser of the term when the purposes for which it was created have been accomplished. Formerly, when a term had thus become satisfied, it was Terms of Years. 225 nevertheless existing, and was cajjable of being assigned. On conveyances of freehold property it was constantly the practice to assign such terms to a trustee for the purchaser, for the protection they afforded against incumbrances mesne between the creation of the term and the assignment of it. Now, by the 8 & 9 Vict. c. 112, it is enacted that every satisfied term which by express declaration or construction of law shall on the 31st December, 1845, be attendant on the inheritance shall cease, but, nevertheless, every term so attendant by express declaration shall afford the same pi'o- tection against incumbrances, &c., as if it had continued but had not been assigned, and for the purposes of such pro- tection shall be considered as subsisting (s. 1). See Doe v. Langdon, J2 Q. B. 711 ; Doe v. Price, 16 M. & W. 603 ; Doe V. Moulsdale, lb. 689 ; Plant v. Taylor, 7 H. & N. 211. By sec. 2, every term subsisting at the time of the passing of the act (8th August, 1845), or afterwards created and becoming satisfied after the 31st December, 1845, and which shall either by express declaration or construction of law after that day become attendant on the inheritance or rever- sion of any lands, shall cease. See Doe v. Jones, 13 Q. B. 774 ; consider, however, as to this case, Sug. K. P. St. 280 ; see, also. Freer v. Hesse, 4 D., M. & Gr. 495 ; Shaw v. Johnson, 1 Dr. & S. 412; Owen v. Owen, 3 H. & C. 88. Long terms of years are also not unfrequently met with, Long teneflciai which, from the length of the term and the absence of any t^'ms "f y«^- save nominal covenants, are practically, except in respect of their mode of devolution or descent, equivalent, or nearly so, to freehold estates, and are not uncommonly conveyed or disposed of as freehold estates. A question occasionally rreehoid or lease- arises with regard to lands of this description, which have '"''''■ been dealt with sometimes as leasehold and sometimes as freehold property, whether they are to be considered as of one kind or the other. When the leasehold origin is once shown, it would seem that the evidence of its being subse- quently dealt with as freehold property ought at the least to be for a very long period unbroken by any intervals during which it has been treated and dealt with as leasehold. See Pickett V. Packham, L. E., 4 Ch. 190 ; consider Jeffreys v. Maehu, 29 Bea. 344. In long terms the ordinary relation of landlord and tenant ordinary leases. does not exist ; this relation is only created where there is a demise at a rent. The subject of ordinary leases will here- after be considered, tit. " Landlord and Tenant — Lease." Estates cannot be created in chattels real or personal pro- Limitations in perty as in real property, and a limitation or gift which *««<»■ tail. w. Q 226 Estates — Interests in Personalty. would confer an estate in fee or in tail in realty will in general give the absolute interest in personalty. See Brouncher v. Bagot, 19 Ves. 574; 1 Mer. 271; Douglas V. Congreve, 1 Bea. 59. So in general a bequest, in terms which would create an estate tail if applied to realty, gives the absolute interest in personalty. Garth v. Baldwin, 2 Ves. sen. 646 ; Campbell v. Harding, 2 R. & My. 390 ; Re An- drews' Will, 26 Bea. 608. The exceptions to this general rule will be noticed in title " Wills." It is no objection to the application of the rule that by the effect of it real and personal estate given by the same words will devolve upon different persons. Jackson y. Calvert, 1 J. & H. 235. As to limitations of chattels real or personal estate correspond- ing with limitations of real estate, see Chapter V. CHAPTER V. INTERESTS IN PERSONAL ESTATE. Generally . . . . . . 226 Wliat it comprises . . 226 Delivery — Assignment . 226 Limitations of Personalty ' to devolve mith settled Realty in Tail .. . . 227 Trusts executory and executed .. .. 227 As far as Mules of Lam and Equity permit . . 227 Limitations, ^'c. — continued. Proviso restraining ab- solute vesting iefore Tmenty-one .. .. 228 Recent Vases . . . . 228 Life Estates 229 Limitations at Law . . 229 Executory Trust . . 229 Fraudulent Lisposition of 230 Inventory .. .. 230 What comprises. Delivery. Assignment. Generally.] Personal property, in the more restricted sense of the expression, comprises every species of property which does not come within the description of real estate or chattels real, though the term, in its larger sense, comprises chattels real also. Personal property capable of delivery, for in- stance, moveable chattels and effects, may be assigned by deed (2 Saund. 47 a, n. (d); Bourne v. Fosbrooke, 18 C. B., N. S. 515; see Sharr v. Pilch, 4 Ex. 478), or by actual de- livery. Even in the case of documents of title, or instru- ments which are the evidence of title to property, the right to the actual documents or instruments may pass at law, by delivery, though given without consideration, notwith- standing they may not be available of themselves to give any further right to the property represented by thera. Barton V. Gainer, 3 H. & N. 387. As to the right in equity of a Limitations of Personalty. 227 person claiming as a volunteer under an incomplete or im- perfect gift, see tit. " Fkaudulent and Voluntary Con- veyances." Limitations of Personalty to devolve with settled Realty in Tail.'] Although an estate tail cannot be created in chat- tels real and personal property, they may be given or settled so as to devolve for a certain period, in the same manner as settled real estate. Thus, personalty is sometimes limited by deed or will to devolve with and go in the same manner as an estate which is limited in strict settlement. In such cases the trusts may he executory or executed. If the trusts Trusts executory are executory and the personal estate is to be settled in tail "" in the same manner as real estate, as far as the rules of law settlement as tar and equity will permit, the court, it has been said, will aadajuity'permit. limit the personal esta,te to the persons who, as they come into existence, will become tenants in tail of the real estate, with limitations over in the event of their dying under the age of twenty-one years and without inheritable issue. Boydell v. Golightly, 14 Sim. 327, 346; see Lincoln v. D. Newcastle, 12 Ves. 217. But this cannot, perhaps, be considered as a settled rule. At all events the words " as far or as long as the rules of law and equity will permit," will not alone create an executory trust of gifts or limitations of this description. See Ld. Scarsdale v. Curzon, 1 J. & H. 40. The judgment in this case contains a most elaborate and instructive review of all the previous decisions. In Shelley v. Shelley, L. E., 6 Eq. 640, personalty (consist- ing of family jewels only) was directed to he held as heir- looms by A., and at his decease by his eldest son (B.), and to descend to the eldest son of such eldest son and so on, as far as the rules of law or equity would permit. There was no reference to any limitation of real estate, and this was held to be unnecessary in the case of jewels settled as heir-looms. It was held, further, that a valid executory trust was created for A. for life, with remainder to B. (who was born in the lifetime of the testator) for his life, and upon the death of B. in trust for B.'s eldest son, to be a vested interest in him when he should attain twenty-one; but if he should die in B.'s lifetime or after B.'s death without having attained twenty-one, leaving an eldest son born before B.'s death, in trust for such last-mentioned eldest son, to be a vested in- terest when he should attain twenty-one. Subject to these limitations, it was held that the jewels vested in A. absolutely. If the trusts are executed, and there is a mere direction Trusts executed. as to chattels personal, that they shall go as the real estate for so long a time as the rules of law and equity Aa rules of law rt aud equity perniit. 228 Estates — Limitations of Personalty. loill permit, they will vest in the first tenant in tail who comes in esse, irrespective of age, and will not be devested by his dying under age or in the lifetime of the tenant for life. Foley v. Burnell, 1 B. C. C. 274 ; Vaughan v. Burslem, 3 B. C. C. 101; Carr v. Ld. Errol, 14 Ves. 478; see Ld. Lincoln v. D. Newcastle, 12 Ves. 217 ; Rowland v. Morgan, 2 Phill. 764; Scarsdale v. Curzon, 1 J. & H. 40; Re Johnson's Trusts, L. R., 2 Eq. 716. The decisions, contra, of Gower V. Grosvenor, Barn. Ch. C. 54 ; S. C, cited 5 Mad. 337 ; Trafford v. Trafford, 3 Atk. 347, are over- ruled ; and see the judgment of Ld. Ch. Sugden in Potts v. Potts, 9 Ir. Eq. Rep. 577, aflF. 7 H. L. Ca. 671 ; Doncaster V. Doncaster, 3 K. & J. 26; Hogg v. Jones, 32 Bea. 45. In Ibbetson v. Lbbetson, 5 M. & C. 26, a testator be- queathed chattels to trustees upon trust to permit them to be used by the person and persons who for the time being should be entitled to the possession of his mansion-house imder his marriage settlement or his will, until a tenant in tail of the age of twenty-one years should be in possession of his mansion-house, and then the chattels were to belong to such tenant in tail. At the testator's death his brother was entitled to the possession of the maijsion-house for his life, with remainder to his eldest son in tail. On the brother's > death his eldest son was of age. It was held that he was not entitled to the chattels, the limitation over of them being too remote. But, although the trusts may be executed, the vesting of personal estate will he postponed if it be limited upon trust for the person entitled to the freeholds for the time Proviso restrain- being, with a proviso that it shall not vest absolutely in any ing absolute vest- tenant in tail by purchase unless he shall attain twentv- iiig before twenty- i . t i t i t t, t i . , i one. one, but on his death, under that age, shall devolve with the freeholds of inheritance. Potts v. Potts, sup. ; see Tolle- mache v. Coventry, 2 CI. & F. 611; Ld. Dungannon v. Smith, 12 CI. & F. 546; Sug. Prop. H. of Lords, 330 et seq. The effect of the words " by purchase" in such a limitation is to prevent the application of the rule against perpetuities, for if the limitation were to tenants in tail taking by descent as well as by purchase, there might be a series of such tenants in tail taking by descent who might die under age and the vesting might be protracted indefinitely. In an im- portant case which was much discussed in the courts below, Christies. Oosiing. and ultimately in the House of Lords, viz., Christie v. Gos- ling, L. R., 1 H. L. 279, the testator directed his trustees to stand possessed of his estate for the use of his nephew for life, with remainder to the first and other sons of such ne- phew in tail, and bequeathed his personal property on the Life Estate. 229 same trusts as were directed concerning his real estate, " or as near thereto as the rules of law and equity will permit." He added a proviso, that the personal estate should not vest absolutely in any tenant in tail unless such person should attain twenty-one. The nephew died leaving a son, who became first tenant in tail by purchase of the real estates. It was held, that the bequest not being executory, the quali- fying words (in italics) did not affect its construction, and (Ld. St. Leonards, diss.) that the gift of the personalty was not void for remoteness as a gift to such tenant in tail (generally) who should live to attain twenty-one, but was a gift to tenants in tail by purchase only (although those words were not in the limitation), and that the first person who bore the character of tenant in tail of the real estate by pur- chase took an absolute interest in the personalty. In the later case of Harrington v. Harrington, L. E., Hmringion-r. 3 Ch. 561, the limitations of the personal estate were similar ^"""^"s'"^- to those in Christie v. Gosling, except that the reference was to a settlement which contained the limitations of the realty, and the proviso as to vesting was, that " the per- sonalty should not vest absolutely in any person who under the settlement shoidd become seised of the estates for an estate of inheritance unless such person should attain the age of twenty-one years, or, dying under that age, should leave issue inheritable under the limitations of the settle- ment." The first tenant in tail in possession under the settlement died without issue before he attained the age of twenty-one years. It was held, that this event having hap- pened, there were no words which carried over the chattels to any other tenant for life or tenant in tail, and that the chattels passed by the residuary clause in the will. See also Holloway V. Webber, Same v. Holloway, L. R., 6 Eq. 523. The more recent cases have been cited somewhat at length, as the distinctions upon which they turn would not be readily apparent without a tolerably full statement of the limitations. As to the application of the Rule in Shelley's Case to personal estate, see ante, p. 200. Life Estate.] Strictly speaking, life estates in personalty Cannot bo Umited with remainders over cannot be limited at law. But such °■"''^■ limitations in a will, or by way of executory trust, are good. ^'"tsT ^^^^^°^ Fearne, C. E. 402. But there can be no limitation of per- Limitation after sonal property upon an indefinite failure of the issue of a inaeflmte lauure person, for this is too remote and would infringe the rule against perpetuities {Chandless v. Price, 3 Ves. 99; Kil- patrick V. Kilpatrick, 13 Ves. 483) ; but otherwise where issue means issue living at the death of such person. 230 Estates — Personalty. Fraudulent di?po- Eiciun gives no title. Inventory. Soulhcy V. Ld. Somerville, 13 Ves. 486; and see 1 Vict, c. 26, s. 29, and tit. " Wills." The tenant for life of chattels personal cannot dispose of or otherwise deal with them except for his own life. If, for example, they are pledged by him, the remainderman may, after his death, maintain trover for them even against a person lending money upon them, without notice of the settlement. Hoare v. Parker, 2 T. R. 372 ; see Hartop v. Hoare, 3 Atk. 44. A tenant for life of personal chattels is not in general obliged to give security, but, if required, must sign an inventory of them. Leeke y. Bennett, 1 Atk. 471 ; see Bill v. Kinaston, 2 Atk. 82; E. Macclesfield v. Davis, 3 V. & B. 16; Conduittr. Soane, 1 Coll. 285; Clive V. Carew, 1 J. & H. 199. Other matters connected with personal estate will be hereafter considered under different titles of the work. ( 231 ) EXECUTORS AND ADMINISTRATORS. Ch. 1. — Nature of Office geneeallt, and who may be, p. 231. Ch. 2. — Of the Estate op an Exectjtoe ok Adminis- TRATOE, p. 237. Ch. 3. — Payment of Debts and Peefoemance of Cove- nants, p. 239. Ch. 4. — Of a Devastavit, p. 247. Ch. 5. — Administeation of, and dealing with, the Assets, p. 253. Ch. 6. — Of the Executor's Right to the undisposed-of Residue, p. 261. Ch. 7. — Disteibution of the Personal Estate of In- testates, p. 263. CHAPTER I. NATURE OF OFFICE GENEEALLY, AND WHO MAY BE. Nature of Office Executor — Adminis- trator Limited Executorship . Executor de son tort . . Administrator de son tort . . . . . . Who may ie .. . . Generally Infant . . Married Woman Husband's assent Felons . . Bankrupts Lunatics . , 231 232 232 232 233 233 233 233 233 233 234 234 234 Devolution of Office . • 234 Executors of Executor . 234 Administrators of Exe- cutor . . . . . . 234 Administration de bonis non • • . . 234 denunciation Executor acting 235 235 WJiat may be done before Probate or Administration 235 Acting mithout Probate or Letters of A dminis- tration .. . . 235 Acts of Executor valid . 235 Will of Realty only .. 235 Autlwrity of Adminis- trator is from Grant — of Executor is from Will 236 Effect of Probate generally . 236 Liability for acting mith- out Probate or Letters of Administration Probate is conclusive as to Validity of Will. Equity lias Jurisdiction as to Construction . . Revocation of Probate. . 236 236 236 236 Nature of Office.] An executor is a person to whom the Executor. execution of a last will and testament of personal estate is 232 Executors and Administrators— Nature of Office. Administrator. After f?Rint of administration powers of both equai. Limited executor- 8bip. During absence. Executor de son tort. Sliglit acts consti- tute. To what extent Uable. Acts of are valid against rightful executor. confided by the testator's appointment. 2 Blac. Com. 503 ; see Farrington v. Knightly, 1 P. W. 548. An administrator is a person to whom the Court of Pro- bate (since the 20 & 21 Vict. c. 77, s. 3) has given authority to administer the personal estate of a deceased person dying intestate, and, in certain cases, of persons dying testate. Before this statute, the power of granting administration to the personal estate of a deceased person was vested in the ordinary. 31 Edw. 3, st. 1, c. 11. Although ad- ministration is usually granted in respect of the personal estate of intestates, it will also be granted to the effects of a person who dies testate, but without having appointed an executor, or having appointed one, he predeceases the tes- tator, or, if he survives, renounces, or is, or becomes, incapable of acting, or dies intestate before he has wholly administered the estate. In these cases, the grant of the administration is with the will annexed. See Wms. Exors. 443. After the grant, the office and power of an executor and adminis- trator are for the most part the same. Touchst. 474 ; see Blackhorough v. Davis, 1 P. W. 43. One person may be appointed executor for part of the property or for a limited time, and another person for another part or for another period. See Wms. Exors. 367. As to administration during the residence of executors or administrators out of the juris- diction, see 38 Geo. 3, c. 87, s. 1 ; 20 & 21 Vict. c. 77, s. 74 ; 21 & 22 Vict. c. 95, s. 18. An executor de son tort is one who takes upon himself the office without being appointed by the deceased, or sub- stituted by the Ecclesiastical Court. See Wms. Exors. 247, n. (a) ; and see 43 Eliz. c. 8 ; 4 & 5 Will. & M. c. 24, s. 12. Very slight acts of intermeddling with the property of the deceased will suffice to constitute a person executor de son tort. Edwards v. Harben, 2 T. R. 587; see Padget v. Priest, ib. 97; Bevan v. Ld. Hastings, 2 K. & J. 724. Where it is established that he has acted in this capacity, he is liable to be sued by creditors or legatees of the de- ceased. Bac. Ab. Exors. (B. 3), 3 ; Meyrich v. Anderson, 14 Q. B. 719. But he is only hable to the extent of what has come to his hands. Yardley v. Arnold, 10 M. & W. 141. An executor de son tort is subject to all the liabilities, but entitled to none of the privileges, of an ordinary executor. Carmichael v. Carmichael, 2 Ph. 101. But if he act bona fide as executor, doing only what an executor or adminis- trator would be bound to do, his acts are in general valid as against the rightful executor. Parker v. Kett, 1 Ld. Raym. 661 ; Thompson v. Harding, 2 E. & B. 630 ; Buckley v. Barber, 6 Ex. 164 ; see Hill v. Curtis, L. R.,' Who may be. 233 1 Eq. 90. An agent of an executor de son tort may himself be liable as executor de son tort, if he receive money knowing that his principal is not the rightful executor, though he pay it over to his principal. Sharlandy. Mildow, 5 Ha. 469 ; see Paull v. Simpson, 9 Q. B. 365. There no administrator cannot be an administrator de son tort. Wms. Exors. 255, ^° '"^ '""• n. (y), citing Godolph. pt. 2, c. 8, s. 2. Who may 6e.J As a general rule, any person may be an Generally, executor. An infant may be ; but if there are other exe- injant. cutors, as they can act, administration will not be granted to him until his majority. Pigot v. Gascoine, Brownl. 46. If he be sole executor, administration is granted to his guardian or such person as the Probate Court (Spiritual Court for- merly) may think proper. 38 Geo. 3, c. 87, s. 6. In cases of intestacy, if the person who would be entitled nifant admiuis- to a grant of letters of administration if he were of age, be '™ "' an infant, that is, under seven, or minor, that is, between seven and twenty-one, a grant of a similar kind is made to his guardian by the Probate Court. Wms. Exors. 460 et seq. Where the administration is limited, the administrator re- Limited adminis- presents the intestate's estate to the extent of the authority '™"™- granted. Faulkner n. Daniel, 3 Ha 199; Davis v. Chanter, 2 Ph. 545. A married woman may be appointed executrix, but she Married woman cannot accept the office without the consent of her husband. ™<'<="<''^- Thrustout V. Coppin, 2 W. B. 801; Wms. Exors. 223. The husband cannot compel his wife to accept the office, but he may administer in her right. See Adair v. Shaw, 1 Sch. & Lef. 258, n. (6). A married woman may be administratrix Administratrix. (Com. Dig. Adm. (B.) 6) with her husband's assent. Bub- bers V. Harby, 3 Curt. 50; see Thrustout v. Coppin, 2 W. B. 801. And it has been held, that administration may be granted to a married woman although her husband refuses to assist in obtaining the grant and to execute the bond. Goods of Sutherland, 31 L. J., P. & M. 126. Where a mari-ied woman has, with her husband's assent. His concurrence in become executrix or administratrix, she cannot, in general, '' ^^' act without his concurrence in matters which may entail liability upon him. Thus, she cannot alone execute a re- lease (RusseVs case, 5 Rep. 27 a), or an assignment of assets, or the like. Derbyshire v. Home, 3 D., M. & G. 80. But it has been held, that payment of money or delivery of chattels to an executrix, as such, is good if made without knowledge of the husband's dissent, though probate had been refused to her an the ground of his objecting to it. Pember- ton v. Chapman, E., B. & E. 1056. But, in general, for the nusbardmuet concur in acts ol ■wiie executrix. Bankrupts. 234 Executors and Administrators -Devolution of Office. act of the wife, as executrix or administratrix, to be binding, the husband must concur in it ; but he may act alone in her right. Thus, he may grant or release a term of years {Thrustout V. Coppin, 2 W. B. 801), or, it would seem, any part of the personal estate of the testator (see Wood V. Story, 3 D., F. & J. 125), or release debts due to him. Russel's case, 5 Eep. 27 a. Felons are not disqualified from being executors, the office being in autre droit. Smethurst y. Tomlin, 2 S. & T. 143. As to their being administrators, consider this case and see Wms. Exors. 431. Neither are bankrupts nor persons in insolvent circum- stances disqualified from being executors ; but the court will in such cases sometimes appoint a receiver. Langley v. Hawk, 5 Mad. 46 ; see, however. Com. Dig. Administrators, B. 2. Nor, it would seem, are they disqualified from being administrators, though if there is another entitled in the same degree to the grant, it would probably be made to the latter. See Bell Y.Timiswood, 2 Phillim. 22. Lunatics and idiots, it is scarcely necessary to observe, are incapable of acting as executors or administrators. Wms. Exors. 229. Executor of exe- cutor represents first testator. But not adminis- trator of executor. Executor of ad- ministrator. Administration de bonis non. Devolution of Office.] The executor of an executor who has proved represents the first testator, and cannot prove his own testator's will, and refuse to administer the estate of the first testator. Brooke v. Haymes, L. E., 6 Eq. 25. This prin- ciple applies to executors of executors, however long the series, provided the chain of executorship is kept up ; and it makes no difierence that one in the series is a mari-ied woman. Barr V. Carter, 2 Cox, 429. But where B., the executor of A., proves his will in India, and C, the executor of B., proves B.'s will in England, C. is not the executor of A. Twyford V. Trail, 7 Sim. 92. The admiiiistrator of an executor does not represent the testator, and where the chain of executor- ship is broken by an intestacy, no one can do so without taking out letters of administration de bonis non to his estate. See Wms. Exors. 244, 856. And if B., the administrator of A., dies testate, B.'s executor does not represent A., but fresh letters of administration de bonis non must be taken out to A. See Savage v. Blythe, 2 Hagg. App. 150. The administrator de bonis non is entitled to all the personal estate remaining in specie and not administered by the first executor or administrator. Wanliford v. Wanhford, 1 Salk. 306. To entitle an executor to transmit his executorship, he must have proved the will; otherwise administration cum testamento annexo must be granted. lb. Renunciation. 235 Renunciation.'^ An executor who renounces (20 & 21 Probate not taken Vict. c. 77, s. 79), or dies without having taken probate, or °" ' , does not appear when cited (21 & 22 Vict. c. 95, s. 16), is to be considered as not having been appointed executor. But an executor who neither proves nor renounces is entitled, after the death of a co-executor, to accept the office (^Cum- mins v. Cummins, 3 Jo. & L. 64), unless under the above- mentioned act he has been cited and has failed to appear. An executor who has not proved is not liable merely be- Renouncing cause he assists, or acts as agent for, the acting executor in *'"^""*°'- getting in the assets ( Orr v. Newton, 2 Cox, 274 ; Dove v. Everard, 1 E. & My. 23] ; Stacy v. Elph, 1 M. & K. 195), but he must not act as executor, e.g. by personally getting Executor acting. in the assets, though he afterwards renounces {Rogers v. Frank, 1 Y. & J. 409 ; Cummins v. Cummins, 3 Jo. & L. 64), and if he proves {Re Veiga, 3 S. & T. 13), or acts {Doyle V. Blake, 2 Sch. & L. 237), he cannot afterwards re- nounce and act in a character different from that of executor. Graham v. Keble, 2 Dow, H. L. C. 17; see Balchen v. Scott, 2 Ves. jun. 678; tfnderwood v. Stevens, 1 Mer. 712. What may be done before Probate or Administration.] Acts of executor The estate of an executor flows from the will, and an ex- befpre probate ecutor may, before probate, act as effectually in almost every- thing as if probate had been granted; and when granted it has relation back to the death of the testator. Rogers v. James, 1 Taun. 747. If the executor die before it is granted this will not affect or avoid what he has done if the will be afterwards proved. Brazier v. Hudson, 8 Sim. 67. In matters relating to title however, for instance, an assign- ment of property by him, it is necessary to show subse- quent letters of administration with the will annexed. See Johnson v. Warwick, 17 C. B. 516. On a sale before pro- purchaser from bate, also, a purchaser is not bound to pay his purchase- executor not money until the probate has been obtained. Newton v. without proSSe! ° Metrop. Ry. Co., 1 Dr. & S. 583. Where the will relates wm of realty only. solely to real estate it has been held that it ought not to be proved in the Probate Court {Habergham v. J^incent, 2 Ves. jun. 230; In the goods of Drummond, 2 S. & T. 8), though it contains the appointment of an executor to whom real estate is given with directions to convert it. Goods of Burden, L. R., 1 P. & M. 325. But in the later case of Goods of Elizabeth Jordan, ib. 555, it was held that a will of realty only, containing the appointment of an executor, was entitled to probate. Consider Weddall v. Nixon, l7 Bea. 160, and the observations there. 236 Executors and Administratois — Effect of Probate. Auiiiority of ad- The authority of the administrator is derived from the rivedfr»m'grant- 9'>'C-'nt of the letters of administration, and in this respect is of executor Jrom not, lilie that of an executor, which is derived, not from the ^"^ pVobate, but from the will itself. See Perry v. Jenkins, 1 M. & C. 718. It follows from this distinction that, as a general rule, acts done by a person as administrator before the grant of letters of administration are not binding, for instance, a release. Middleton's case, 5 Co. 286. For the exceptions to this rule and the cases at law in which the right of an administrator has been held to have relation back from the grant of administration to the intestate's death, see Wms. 3&4Wiii.4,c.27. Exors. 596 ef seq. For the purposes of the 3 & 4 Will. 4, c. 27 also (tit. " Statute of Limitations," post), an ad- ministrator shall be deemed to claim as if there had been no interval between the death and grant of letters of adminis- tration (s. 6). Liability for acting without probate or lettera of admiuis- tration, Probate is con- clusive at law and in equity as to validity of will. Equity bas juris- diction in matters of construction, Kevocation of probate. Effect of Probate or Letters of Administration generally.'] By the 28 & 29 Vict. c. 104, any person who takes posses- sion of and in any manner administers any part of the personal estate of any person deceased without obtaining probate of his will or letters of administration of his estate within six months after his decease or within two months after the termination of any suit or dispute respecting the will or the right to letters of administration, if there is any such suit or dispute that is not ended within four months after the death, is liable to proceedings, at the instance of the Commissioners of Inland Revenue, for an account of the estate of the deceased and of its value, and to pay such duty as would have been payable if probate or administration had been obtained (s. 57). As a very general rule, the probate is conclusive at law {Noel V. Wells, 1 Lev. 235) and in equity {Jones v. Jones, 3 Mer. 161) as to the appointment of executor, and the con- tents of the will and its validity as a will oi personal estate. See Barr v. Jackson, 1 Ph. 582. Even where a will, or bequest in it, has been obtained hj fraud on the testator it cannot be set aside in a court of equity {Allen v. Macpherson, 1 H. L. C. 191), which however has jurisdiction in all cases of construction. Walsh v. Gladstone, 1 Ph. 294. All payments bona fide made to any executor or administrator before probate or administration is revoked, are valid. 20 & 21 Vict. c. 77, ss. 77, 78. Property vesting in. 237 CHAPTEE II. OF THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR. Property vesting in Exe- Several Executors or Ad- cutor or Administrator .. 237 ministrators 238 Whole general Personal In Lam as one Person. . 238 Estate .. ..237 What each or any may Exceptions .. . . 237 do 238 Fish—JDeer .. ..237 Receipts of one .. 239 Trees — Heir-looms .. 237 Joining in Receipts . . 239 Fixtures — Emblements 237 Office survives .. 239 Property vesting in Executor or Administrator.'] The General personal general personal estate of a testator or intestate (including '*'^"'- chattels real) vests in his executor or administi'ator. Co. Lit. 388 a. All leases and terms of years, however short or long, chattels real. being for some definite time as distinguished from estates of inheritance, vest in the executor ; and if a lessee for years grant out of his interest an estate for life, it is nevertheless not a freehold but a chattel interest. Butt's case, 7 Eep. 23 a ; Saffery v. Elgood, 1 A. & E. 191. With respect to But not attendant terms which are attendant upon the inheritance, they did tcrn\s. not, as a rule, even before the Satisfied Terms Act (8 & 9 Vict. c. 112, ante, p. 225), vest in the executor, and were not in general assets for the payment of debts. See Tiffin v. Tiffin, 1 Ver. 1 ; Dowse v. Percival, ib. 134. This, how- ever, is now of no importance, as the estates on which they are attendant are, under the 3 & 4 Will. 4, c. 104 [ante, tit. " Assets"), in all cases liable for this purpose. There are a few exceptions to the rule that the whole Exceptions, personal estate vests in the executor. Thus fish in a pond rish. and deer in a park (Co. Litt. 8 a) pass with the freehold. Deer, unless, in the case of deer, they are reclaimed. Ford v. Tynte, 2 J. & H. 150; Morgan v. Abergavenny, 8 C. B. 768. Trees, except in certain special cases, do not pass to Trees. the executors. Wms. Exors. 668. Heir-looms are such Heir-iooms. personal chattels as go by special custom to the heir with the inheritance, and the custom determines what are heir- looms. Ib. 680. Lord Coke mentions "the best bed, table, pot, pan, cart," &c., as things which, by custom, may descend to the heir as heir-looms. Co. Litt. 18 b. There are also certain chattels which, though not strictly heir-looms, are in the nature of heir-looms, and go with the inheritance ; for instance, an ancient horn, by the tenure of which land is held {Pusey V. Pusey, 1 Ver. 273), and charters, court rolls, deeds, and other evidences of title, and the chests in which they are preserved. Com. Dig. Biens, B. ; see Lord v. Wardle, 3 B. N. C. 680. With respect to fixtures, some Fixtures, 238 Executors — Several itxecutors. pass to the heir, others to the executor. Of the former class are fixtures so affixed to the freehold that they cannot be re- moved without doing damage to the inheritance. See liella- well V. Eastwood, 6 Ex. 295 — 3J2. As to what is or is not a sufficient annexation to the freehold, see Walmsley v. Milne, 7 C. B., N. S. 115; Huntley v. Russell, 13 Q. B. 572; Martin v. Roe, 7 E. & B. 237. As between heir and executor the rule obtains with the most rigour in favour of the inheritance and against the right to disannex therefrom. See Elwes v. Maw, 3 Ea. 51 ; Fisher v. Dixon, 12 CI. & Fin. 312. For the particular things which have been held in this case to come within the denomination of fixtures, see Grady on Fixtures, 2nd edit., p. 18 et seq. and 39 et seq., and lyEyncourt v. Gregory, L. B., 3 Eq. 382. Trade fljttures. There may, in some cases, be an exception to the general rule, where the fixtures have been affixed for the mere pur- poses of trade, quite unconnected with the enjoyment of the land. But it is now settled that where even trade fixtures or machines have been erected and affixed to the freehold for the purpose of the beneficial enjoyment of the land, they will go to the heir and not to the executor. Fisher v. Dixon, 12 CI. & F. 312 ; see Mather v. Eraser, 2 K. & J. 536; Metrop. Counties Soc. v. Brown, 26 Bea. 454. Emblements. Tbc executor is Sometimes entitled to emblements, which comprise corn and other products of the soil that are not of spontaneous growth, but are the result of labour and industry applied to the soil. Thus corn and grain of all kinds, hops, hemp, flax, potatoes and, it would seem, roots of all kinds, come under the denomination of emblements (2 Blac. Com. 123), but not fruit growing on trees. Wms. Exors. 668. The executor of a tenant in fee is entitled to emblements as against his heir {Lawton v. Lawton, 3 Atk. 16), but not as against his devisee (^Cooper v. Woolfitt, 2 H. & N. 122), and the executor of a tenant in tail or tenant for life is entitled to emblements as against the remainderman. Com. Dig. Biens, G. 2; Co. Litt. 55 b ; see Graves v. Weld, 5 B. & Ad. 105. Several executors or administrators. In law as one per- son. Each may settle accounts. Assign a term. Several Executors.] Several executors or administrators are in law as one person, and the acts of any are, in general, to be deemed the acts of all. Jacomb v. JTarwood, 2 Yea. sen. 267 ; Ex parte Rigby, 19 Ves. 462. Therefore one executor or administrator may settle accounts {Smith v. Everitt, 27 Bea. 446), release, receive or pay a debt {Jacomb V. Harwood, 2 Ves. sen. 267, supra; see Charlton v. E. Durham, L. R,, 4 Ch. 433). So one executor may assent to a legacy (Wms. Exors. 887), and grant or assign a term or other property. Simpson v. Gutteridge, 1 Mad. 616. Several Exeeutors. 239 The receipt of one executor is a sufficient discharge for Receipt of one money due to the testator, notwitlistanding the debtor may sufficient. intend to have tlie receipt of all ; and a forgery of the name of one executor will not affect the validity of a receipt duly signed by another. Charlton v. E. Durham, L. R., 4 Ch. 433. With regard to the receipts of executors, it was held Joining in formerly, that merely joining in receipts was sufficient to ''°° ^ make the executor so joining responsible for the money ex- pressed to be received. See Aplyn v. Brewer, Pr. Ch. 173, and numerous other early cases. For it was considered that as there was no necessity for his joining, as there was in the case of trustees, his doing so should be construed as assuming power over, and consequently responsibility in re- spect of, the fund. Chambers v. Minchin, 7 Ves. 198; Brice V. Stokes, 11 Yes. 324. But the doctrine of the court in this respect has undergone a change, and now the mere joining in the receipt is not per se considered as acting ; but the question is wliether, irrespective of that, he can be con- sidered as acting. lb.; Walker v. Symons, 3 Sw. 64; see Martindale v. Picquot, 3 K. & J. 317. As to the liability of one executor for the devastavit of another executor, see post, Chap. VI. On the death of one executor {Flanders v. Clarke, 3 Atk. office smrives. 509) or administrator {Hudson v. Hudson, Ca. t. Tal. 127), the oflRce devolves upon the surviving executors or admi- nistrators, if any ; and as they are joint tenants, the property likewise vests wholly in the survivors. Where the last exe- cutor or administrator dies, leaving the estate wholly or in part unadministered, the representation must be carried on as mentioned ante, p. 234. CHAPTEE ni. PAYMENT OF DEBTS AND PERFORMANCE OP COVENANTS. In general ,, .. .. 240 Deits paid 'before Legacies . . . . 210 Creditors not bound to wait . . ,. .. 240 Promise iy Executor . . 240 Pomer to compound, . 261) expressly provides tliat it must appear by the will that the executor was intended to take beneficially. See Love v. Gaze, 8 Bea. 472 ; Barrs v. Fewhes, 2 H. & M. 60. CHAPTER VII. OF THE DISTRIBUTION OF THE PERSONAL ESTATE OF INTESTATES. licit 263 Statute of Distributions — contd. Bastard has no Next of '■■ute of Distributions . . 263 Kin 265 Distribution prior to Effect of advancement — Statute 263 Hotchpot 265 Under tlie Act . . 261 ^V^lat is an advance- Proportions — Ko Chil- ment 265 dren .. 264 ^V^lat is not an ad- Representatives 264 vancement . . . . 265 Issue of deceased ad- When Distribtition, to vanced Children . . 266 be made 264 MTtere Child need not Posthumous Child Only Child .. Half Blood 264 2C5 265 bring into Hotchpot . 266 Customs of London and Torli 266 Blood Relationship ne- Table of Persons entitled as cessary 265 Next of Kin .. ..266 Domicil.'\ The distribution of the personal property, where- soever situate, of an intestate is regulated by the law of the place of his domicil at the time of his death. Pipon v. Pipon, Amb. 26 ; Watkins v. Thome, 2 Ves. sen. 35 ; Bremer v. Freeman, 10 M. P. C. 306; Enohin v. Wylie, 10 H. L. C. 1. But if the property be situate in this country, letters of administration must be granted here. Preston v. Melville, 8 CI. & F. 1 ; Campbell v. Beaufoy, Johns. 326. Statute of Distributions, 22 ^ 23 Car. 2, c. 10.] Prior Distribution to this statute the administrator was entitled, after payment '"''* '° ""='• of the intestate's debts and funeral expenses, to the residue of his estate benejicially. See Wms. Exors. 1372. And this is still the case where administration is granted to the husband of his deceased wife's estate, for the Statute of Dis- tributions does not extend to such estates. 29 Car. 2, c. 3, s. 25 (Statute of Frauds). If the husband die without ad- ministering, administration de bonis non to the wife's estate 264 Administrators — Statute of Distributions. Under the act. Proportions. 'So children. Representatives, where and where not admitted. "When distribu- tion to be made. Posthnraous child. is, as a rule, granted to the representatives of the husband who are the parties beneficially entitled. Fielder v. Hanger, 3 Hagg. 769. By the 3rd section of the Statute of Distri- butions, the residue is made distributable " amongst the wife and children or children's children, if any such be, or other- wise to the next of kindred to the deceased person in equal degree or legally representing their stocks pro suo cuique jure according to the laws in such cases and the rules and limitation hereafter set down." The distribution of the residue is as follows : one-third to the wife, the residue equally amongst the children of the intestate and such persons as legally represent the children in case any be then dead, other than a child or children {not being the heir at law, taking any land by descent or other- wise from the intestate) who shall have any estate by settle- ment of the intestate, or shall be advanced by him in his lifetime, in which case such children (except the heir) take out of the residue only as much as will make their shares equal to those of the other children not so provided for, thus bringing their shares into hotchpot. But the heir shares . equally with the other children notwithstanding he may take land by descent'or otherwise (s. 5); but if he has had an advancement out of personal estate he must bring it into hotchpot. Smith v. Smith, 5 Ves. 721. The younger son taking lands as heir in Borough-English has the same pri- vilege as an ordinary heir. Lutwyche v. Lutwyche, Ca. t. Tal. 277. In the ievent of there being no children, or legal repre- sentatives of them, one moiety goes to the wife, the other equally between the next of kin (of the testator), if any (s. 6); if none, to the crown. Cave v. Roberts, 8 Sim. 214. No representatives are admitted among collaterals after the intestate^s brothers' and sisters' children, see Caldicott V. Smith, 2 Show. 530 ; Wms. Exors. 1398. Where there is no wife, the intestate's children take equally ; where no child, the next of kin in equal degree, and their repre- sentatives as aforesaid (s. 7). No distribution of shares is to be made until a year after the intestate's death, and if debts due by him are afterwards recovered or appear, the parties receiving the shares are to refund rateable portions of them (s. 8). A court of equity will compel the administrator to make distribution according to the statute. Adair v. Shaw, 1 Sch. & L. 262. A posthumous child has the same rights as a child actually born in the intestate's lifetime. TJ'allis v. Hodson, 2 Atk. 117. For to entitle a person to take as one of the next of kin, it is sufficient if he be ventre sa mere at the time of the Effect of Advaticement. 265 intestate's death, the rule being that such a child is con- sidered as in esse, if to be so considered is for his hencfit. Burnet v. Mann, 1 Ves. sen. 156; Blasson v. Blasson, 2 D., J. & S. 665. An only child takes all, there being no oniy child, other child or children to share with him. Palmer v. Gar- rard, Pr. Ch. 21 ; Broion v. Farndell, Carth. 52. Those Haii blood. who are of the intestate's kin of the half blood, share with those of the same degree of tiie whole blood. Crooke v. Watt, 2 Ver. 124. No person can take as next of kin Biood reiation- unless blood relationship exists between him and the intes- ^""'^ °<'<^«saary. tate, therefore a mother-in-law or step-mother of an intes- tate, or persons similarly connected with him, cannot take. Rutland v. Rutland, 2 P. W. 216. As a bastard, who dies intestate not leaving a wife or Bastard bas no child, can have no next of kin, his personal property goes ^"^^ °' ''"' to the crown {Taylor v. Hay garth, 14 Sim. 8) ; but if he leave a widow, there being no child, she takes one half, and the crown the other. Cave v. Roberts, 8 Sim. 214. Effect of Advancement.] The statute excludes advanced children (except the heir) unless they bring their shares into hotchpot. The advanced child, however, may elect to keep his portion or provision and give up his rights under the statute. Edwards v. Freeman, 2 P. W. 443. A provision contingent at the father's death will, if that contingency happen, be an advancement. lb. 442. So a provision made What ia an ad- for a child by settlement is an advancement; and the rule is ■^™'='=™™'- the same whether the provision be under a voluntary settle- ment or one for value. lb. But a provision for a child by will, where the parent dies intestate as to part of his personal estate, need not be brought into hotchpot. lb. 440. And if the money has been advanced by the father on the occasion of the son's marriage, the entire sum must be brought into hotchpot — not merely the son's interest. Weyland v. Wey- land, 2 Atk. 635. An annuity {Edwards v. Freeman, 2 P. W. 435), the value to be estimated at the time of the grant {Ld. Kircudbright v. Ly. Kircudbright, 8 Ves. 51), or if it has ceased, the payments received under it, must be brought into hotchpot. So the purchase-money of a commission in the army {Norton v. Norton, 3 P. W. 317; Boyd v. Boyd, L. R., 4 Eq. 305), premiums paid for articling a son to an attorney or apprenticing him, and payments in discharge of a son's debts are advancements. Boyd v. Boyd, L. E., 4 Eq. 305; see Auster v. Powell, 1 D., J. & S. 99, on the ordinary hotchpot clause in a will. But not small sums of what is not an money given to him from time to time (3 P. W. 317, n. (o); advancement, see Elliott v. Collier, 3 Atk. 528); nor is an allowance for 266 Administrators — Customs of London and York. Issue of- deceased advanced chil- dren. Where child need not bring into hotchpot. education or maintenance an advancement {Edwards v. Free- man, sup.); nor money laid out in the repairs of houses belonging to a child, though a gift of the houses themselves would be. Smith-v. Smith, 5YeB. 721. The issue of deceased children who have been advanced must bring their parent's advanced shares into hotchpot. Proud v. Turner, 2 P. W. 560. But a child need not bring the value of an advance- ment into hotchpot where he claims a share of a deceased brother's interest, accruing by his death in the parent's life- time (Cowper V. Scott, 3 P. W. 124); nor where the only claimants are the widow and the advanced child. Ward v. Lant, Pr. Ch. 182; Kircudbright v. Kircudbright, 8 Ves. 64. The rule as to hotchpot does not apply in the case of children claiming as next of kin of their deceased mother. Holt V. Frederick, 2 P. W. 356. Customs of London and York.\ The Statute of Distri- butions did not affect these customs (s. 4.) This section, however, is repealed by the 19 & 20 Vict. c. 94 (an act of one section only), save with respect to the distribution of the estate of persons dying on or before 31st December, 1856. The distribution of the personal estate of persons dying after that day, is now, in all cases, regulated by the Statute of Dis- tributions, as if such customs had never existed (see Wms. Exors. 1411 et seq., where the cases decided upon these customs will be found collected). Table.'\ A table has been added, which may be found convenient for ready reference, showing the interests the next of kin take under the statute in a variety of cases. It is in part compiled from that contained in Bridgman's Index ; see also 1 Chitty's Equity Index, p. 437 (ed. 1837). The authority for each proposition has, however, been added. This is sometimes the statute of Charles or James, and sometimes a decision upon it. It will be seen, that each proposition or statement in the first column assumes that there are none entitled in a nearer degree than those named. If intestate die leaving. Wife anrl child or children Wife, no child His pcraonal representatives will take in the following proportions. One-third to wife, rest to child or children, and if children ai'c dead, then to their representatives. Stat, of Distrib. Half to wife, half to next of kin in equal degree to intestate, lb. Table of Statute of Distributions. 267 If intestate die leaving. Wife, no child, no next of kin. Child or children only, no wife. Child or children or their re- presentatives, e.g. grand- children or great grand- children. If no wife or child or repre- sentatives of child. Husband Father and brother or sister Mother and brother or sister of the whole or lialf blood Wife, mother, brothers, sis- ters, nephews and nieces. Wife, mother, nephews and nieces. Mother only, no child, father, brother, sister, nephew or niece. Wife and father, brothers and sisters. Brothers or sisters of whole blood, and brothers or sis- ters of half blood. Posthumous brother or sister and mother. His personal representatives wili talcc In tlie following proportions. Half to wife, half to crown. Cave v. Roherts, 8 Sim. 214 ; see Dacre v. Patriolmn, 1 Dr. & Sm. 182. All to child (Palmer v. Garrard, Pr. Ch. 21) ; or, if more than one, to children equally. Stat, of Distrib. Children ^er capita equally, grandchildren or great grandchildren by representation per stirpes. Toller, 374 ; Wms. Exors. 1385 ; Bridge v. Abbot, 3 B. C. C. 226. All to next of kin in equal degree to in- testate. Stat, of Distrib. Whole to him. 29 Car. 2, t. 3, s. 25. Whole to father. Ratcliffe's Case, 3 Rep. 40 a ; see Blacltborough v. Davis, 1 P. W. 61. Whole to them equally. 1 Jac, 2, c. 17, s. 7 ; Jessop V. Watson, 1 M. & K. 665. HaU! to wife, residue to mother, brothers, sisters, nephews and nieces equally, the nephews and nieces taking per stirpes. 1 Jac. 2, c. 17, s. 7 ; KeyVmay v. Eeyl- may, 2 P. W. 344; see Stanley y. Stanley, 1 Atk. 454. Half to wife, one-fourth to mother, and re- maining fourth to nephews and nieces. Stanley v. Stanley, 1 Atk. 454; Whole to mother (it being then out of statute of 2 Jac. 2, c. 17). BatcUffe's Case, 3 Rep. 40 a ; Jessop v. Watson, 1 M. & K. 676. Half to wife, half to father. Keylway v. Keylway, 2 P. W. 344 ; Gilb. Eq. Cas. 190. Equally to all. Crooke v. Watt, 2 Ver. 124 ; Smith v. Traeey, 1 Ereem. 94. Equally. Burnet v. Mann, 1 Ves. sen. 156. 268 Table of Statute of Distributions. If intestate die leaving. Posthumous brother or sister and brother or sister born in lifetime of father. Grandfather by father's and mother's side. Brothers or sisters and nephews and nieces. Grandfather or grand- mother, uncle or aunt. Uncles, aunts, nephews and nieces. Nephew and grandnephew Nephew by brother and nephew by half sister. Nephews and nieces Brother and grandfather Brother and two aunts His personal representatives will take in the following proportions. Equally. Burnet v. Mann, 1 Ves. sen. 156. Equally to both. Moor v. Barham, cited BlacMorough v. Bavis, \ P. W. 53. Brothers and sisters in equal shares per capita, nephews and nieces per stirpes. Lloyd T. Tench, 2 Ves. sen. 215. AH to grandfather or grandmother. Lloyd T. Tench, 2 Ves. sen. 215. Equally to all. Btirant t. Prestmood, 1 Atk. 464. All to nephew. Pett's Case, 1 P. W. 25. Equally per capita. Lloyd v. Tench, supra. Equally per capita. Bowers t. Little- mood, 1 P. W. 595. Whole to brother. Evelyn v. Eeelyn, 3 Atk. 762. Whole to brother. See Lloyd v. Tench, supra. ( 269 ) FEAUDULENT AND VOLUNTARY CON- VEYANCES AND SETTLEMENTS. Ch. 1. — As EEGAHDS Ceeditoes, 13 Eliz. c. 5, p. 269. Ch. 2. — As REGARDS Purchasers, 27 Eliz. c. 4, p. 275. Ch. 3. — Of the Consideration which will support convetances and settlements, p. 278. Ch. 4. — Voluntary Settlements and Gifts must be COMPLETE, p. 280. Ch. 5. — Of Undue Influence, p. 286. Ch. 6. — Op the Effect op a valid Voluntary Convey- ance or Settlement, p. 291. CHAPTER I. as regards creditors. 13 Eliz. c. 5 270 Gifts to delay, hinder or defraud Creditors .. 270 Penalties 270 Creditors only mitlhin the Statute 270 To what Property Statute applies . . . . . . 270 Fraud a Question of Fact ■ . 271 Assignment iy may of Mort- gage 271 ValuaMe Consideration iut mala fides • . •• .. 271 Sale to defeat Execution or Sentence .. .. .. 272 Preference of one Creditor, . 272 Voltintary Settlements Indebtedness of Settlor Bebt secured Consideration — Benefit Third Person What Creditors may of Im- How far Settlement Void . . Sanhruptcy Act, 1869 \Vliat necessary to constitute Fraudulent Preference , . 272 272 273 273 273 274 274 275 Fraudulent and voluntary settlements and conveyances frequently give rise to questions at law and in equity. At an early period such assurances were made the subject of statutory regulation designed for the protection of the credi- tors of, and purchasers from, the persons making them. 270 Fraudulent and Voluntary Conveyances, ^c. Feoffments or gifts of lands or goods to delay, hinder or defraud creditors or others, void as against tliem. Act does not ex- tend to assurances upon good con- sideration. Creditors only "Within statute. To what property the statute applies, lijalty. These enactments will be considered, first, as regards such creditors ; and secondly, as regards such purchasers. By the 13 Eliz. c. 5 (perpetual 29 Eliz. c. 5), for the avoiding of feigned, covinous and fraudulent feoffments, S)-c., contrived of malice, fraud, covin, collusion or guile, to delay, hinder or defraud creditors or others, it is enacted that all and every feoffment, gift, grant, alienation, bargain and conveyance of lands, tenements, hereditaments, goods and chattels, or of any of them, or of any lease, rent, common or other profit or charge out of the same lands, &c., goods and chattels or any of them, by writing or otherwise, and all and every bond, suit, judgment and execution to or for any intent or purpose before declared and expressed shall be deemed and taken only as against that person or persons, his or their heirs, successors, executors, administrators and assigns, whose action, suits, debts, accounts, damages, penal- ties, forfeitures, heriots, mortuaries and reliefs by sach guile- ful, covinous, or defraudulent devices and practices as is aforesaid, are, shall or might be in any ways disturbed, hindered, delayed or defrauded, to be clearly and utterly void, frustrate and of none eifect, any pretence, colour, feigned consideration, or any other matter or thing to the contrary notwithstanding (s. 1). The act shall not extend to any estate or interest in lands, &c., goods or chattels assured upon good consideration and bona fide to any person not having at the time of such con- veyance or assurance any notice or knowledge of such covin, fraud or collusion as is aforesaid (s. 5). The prior statutes on the subject are referred to in 1 Sm. L. C. 11. As to the consideration which will support con- veyances, see Chapter III. The gift or conveyance must be with intent to defraud creditors. See Gooche's case, 5 Eep. 606; Nunn v. Willsmore, 8 T. E. 521 ; Doe v. Ball, 11 M. & W. 531. Volunteers who are creditors, for instance, under bonds or obligations given without valuable considera- tion, are nevertheless creditors within the meaning of the statute. Adames v. Hallett, L. R., 6 Eq. 468. Every party to the fraudulent conveyance shall incur the forfeiture of one year's value of the said lands, and the whole of the value of the said goods, and the money contained in such bond, and also, being convicted thereof, shall suffer imprisonment for one half-year (s. 2). See as to the obligation of defendants to answer to a bill of discovery, though it may expose them to penalties under the statute, Wich v. Parker, 22 Bea. 59; Bunn V. Bunn, 12 W. E. 561. The statute applies to real and personal estate generally. It was held formerly that it did not apply to copyholds, as As regards Creditors. 271 they were not subject to debts {Matthews v. Feaver, 1 Cox, copyhoids. 278) ; but, by the 1 & 2 Vict. c. 110, s. 11, copyholds may uow be taken in execution under an elegit. They are, con- sequently, liable to debts. See also 1 Sm. L. C. 23. With regard to personal estate, " goods and chattels," the statute applies to such things only as can be taken in execution. Pcraonaity that Rider v. Kidder, 10 Ves. 360. The remedy in this respect exccuuSiT*" has been extended by the 1 & 2 Vict. c. 110, s. 12. See Norcutt V. Dodd, Cr. & P. 100; Barrack v. M'CuUoch, 3 K. & J. 110; Stokoe V. Cowan, 29 Bea. 637. An* assignment of choses in action is not within the Choses in action, statute during the lifetime of the assignor {Norcutt v. Dodd, Cr. & Ph. 100), except as regards such choses in action as can now be taken in execution under the 1 & 2 Vict. c. 110. The question of fraud or no fraud is one of fact {Martin- Fraud a qncstion dale V. Booth, 3 B. & Ad. 498; Hale v. Metropolitan, ^c. °^^^ Co., 4 Drew. 492), even when the conveyance is absolute and the grantor remains in possession, though this may be an indication or badge of fraud ( Twyne's Case, 3 Eep. 80) ; and if it be found, in fact, that there is no fraud, the con- veyance will, as a rule, be good within the statute. See Martindale v. Booth and cases sup. Consider, however, the observations in Freeman v. Pope, L. R., 5 Ch. 538, as to the question being one solely for a jury. Where the conveyance is not absolute, but by way of mort- Assignment by gage, as the retention of the possession by the mortgagor '^'^^ ° ""rtgage. until default in payment is Lu accordance with the deed, the assignment is not fraudulent. Edwards v. Harben, 2 T. B. 587. A valuable consideration (po«;, Chap. III.) will not support vaiuatjie con- the conveyance if there be mala fides and an intent to delay or not support wiicro defraud creditors. Harman v. Richards, 10 Ha. 89; Strong inaiafl^s-s"PP°sea. remain quite unaffected by the mere marriage ceremony unless it constitutes a valid marriage. In Sturge v. Starr (2 M. & K. 195), the marriage ceremony was performed between a man already married and a female who was en- titled to a life interest in property. Afterwards they both joined in assigning her life interest to a purchaser. It was Pi-operty not held that the assignment was valid, as, in point of fact, it ^^^e'vaiM. was an assignment by a feme sole, and that the fraud prac- tised upon her was no answer to a bill at the suit of the purchaser. And where property of the intended husband was settled in trust for 'himseli until the marriage, followed by other trusts to take effect afterwards, and the marriage was invalid by reason of the consanguinity of the parties, it was held that the trust for the intended husband was alone operative. Chapman v. Bradley, 10 Jur., N. S. 5. There are a few cases in which marriage will not be at- tended by its usual legal consequences as regards property. Thus, if the marriage takes place between persons who are Marriage of in- under age, or one of whom is under age, without the proper •'''"''' '>^tii»"t consent of parents or guardians (if living) being obtained, on an information being filed by the attorney-general, the Court of Chancery may declare a forfeiture of the property which accrued by the marriage to the offending party. 4 Geo. 4, c. 76, s. 23. The 24th section avoids agreements, &c. made on such marriages. This property is to be secured and x2 308 Husband and Wife. Clandestine mar- riage of ward of court False notice, &c. under Begistra- tion of Marriages Act. False notice. Marriage abroad. No settlement or existing trust. Settlement by ■wife in fraud of marriage treaty. settled as directed by the court, which has no discretionary power to mitigate the penalty. Att.-Gen. v. Mullay, 4 Russ. 329; Att.-Gen. v. Lucas, 2 Phill. 753; see Att.-Gen. V. Severne, 1 Coll. 313. Cases of marriage with a minor in fraud of the Marriage Act (4 Geo. 4, c. 76) must be distinguished from cases of clandestine marriage with a ward of the coui't. In The Att.- Gen. V. Lucas (2 Phill. 756), Lord Cottenham observed that in cases of marriage with a ward the discretion of the court was unfettered, whereas the act (4 Geo. 4, c. 76) certainly meant to punish the husband, and it was impossible not to see that the directions there given as to the settlement fur- nished the rule by which the court was to be regulated. See the settlement directed in this case, ib. 757. But in Att.- Gen. V. Read (6 W. N. 91), V.-C. Bacon stated that though he was bound to follow Att.-Gen. v. Lucas, he did so with the greatest reluctance, considering that decision to be con- trary to the spirit of the act. The settlement approved of in Att.-Gen. v. Read gave the wife a general power of appointment in default of children, not exclusive of the hus- band. See Att.-Gen. v. Clements, 6 W. N. 91. Again, if a marriage be solemnized under the Registration of Marriages Acts (6 & 7 Will. 4, c. 85; amended by 19 & 20 Vict. c. 119, s. 19) by means of any wilfully false declaration, notice or certificate, the like penalties will be incurred as in the case of a marriage contracted without proper consent, under the 4 Geo. 4, c. 76, s. 23. The same penalties will attach where a marriage is cele- brated abroad under the 12 & 13 Vict. c. 68, by means of any false notice, oath, affirmation or declaration (s. 15). These, however, are only exceptions to the general rule. In this title, too, it is assumed that there is no settlement or existing trust affecting the property; for, if so, of course the effect of the marriage is to be taken in connection with such settlement or trust. Thus, to put a familiar case, if, prior to the marriage, property has been given or settled to the separate use of the wife, and the marriage takes place with the property still subject to the same restriction, the husband will be bound by it notwithstanding the marriage. Tullett V. Armstrong, Scarborough v. Barman, 1 Bea. 1 ; 4 M. & Cr. 377; see Ashton v. M'Dougall, 5 Bea. 56. Almost the only case, if not the only case, in which the hus- band will not be bound by conditions which attach to the property at the time of the marriage, is, where pending the courtship the wife has settled her property upon herself or others in fraud of the marriage treaty aud of her intended husband's marital right. This subject will be discussed in due course. Representations with respect to Marriage. 309 CHAPTER II. OF REPRESENTATIONS FORMING AN INDUCEMENT TO THE MARRIAGE. Party making, bound by them 309 I'yxpress Representation . . 309 J3y Snsiand or Wife to each other.. .. ..310 Sy Infant 810 Form of, immaterial . . 310 Covenant against Incum- brances, Sio. .. .. 310 Representation or Promise . 311 Acquiescence equivalent to . .. 311 In Evans v. Bicknell (6 Ves. 182), Lord Eldon observed, that Party making, it was a very old head of equity, that if a representation •"'™'i ^y them, were made by one person to anotlier going to deal in a matter of interest upon the faith of that representation, the former should make it good if he knew it to be false. And such re- presentations are equally binding where the contract is one of marriage, as in the case of other contracts. De Manne- ville V. Compton, 1 V. & B. 356; Hammer sley v. De Biel, 12 CI. & F. 45; Bold v. Hutchinson, 20 Bea. 256—9; Frole V. Soady, 2 Giff. 1 ; Alt v. Alt, 4 Giff. 184 ; see the cases, ante, pp. 89, 90. In Hammersley v. De Biel (12 CI. & P. 45), it was held, that a representation made by one party for the purpose of influencing the conduct of another, and acted on by the latter, will in general be suflicient to entitle him to the assistance of a court of equity for the purpose of realizing such representation ; and so in proposals of marriage, if the parent or his agent deliberately holds out inducements to the suitor to celebrate the marriage, and he consents, and cele- brates it believing it was intended that he should have the benefits so held out to him, a court of equity will give effect to the proposals. See also Bold v. Hutchinson, 20 Bea. 256 — 9, as to the general principle. Thus, where on a treaty Express represen- for marriage a person untruly represents a debt as not being tation. due, he is bound by his representation, and cannot enforce payment of the debt. Neville v. Wilkinson, 1 B. C. C. 543. But whether, under such circumstances, the mere concealment (though wilful) of a debt, will be a bar to its being enforced, may be doubtful. Scott v. Scott, 1 Cox, 366; see Cross v. Sprig g, 6 Ha. 552; Ex parte Carr, 3 V. & B. Ill; Easta- hrook V. Scott, 3 Ves. 461. Upon the same principle, pay- ment of a secuiity, given for a debt pretended to be due to the husband, such security forming an inducement to the marriage, can be enforced. Montefiore v. Montefiore, 1 W. Blac. 363 ; Pitcairn v. Ogbourne, 2 Ves. sen. 375, So 310 Husband and Wife. By husband or ■wife to eacli other. By infant. Marriage must be induced by. Ifeed not be "Wilful. Mere mistake. Form of, imma- terial. Covenant against incumbrances. Kepresenlatlon where a representation is made tliat a certain sum is engaged in trade, part of which it is agreed shall he settled on the wife, this will constitute a debt provable against the estate of the husband if he become bankrupt. Ex parte Gardner 11 Ves. 40. ^representation made, during the marriage treaty, by either the intended husband or wife to the other will be equally binding as if made by some third person. lb.; England v. Dowas, 2 Bea. 528. A false representation, however, by an infant that he is of age will not be binding on him if those to whom it is made know it is false (Nelson v. Stacker, 5 Jur., N. S. 751), but otherwise if they do not. See the judgment of Turner, L. J., ib. 753. It is necessary to show that the marriage took place on the faith of the representa- tion. Jameson v. Stein, 21 Bea. 5; see Be Manneville v. Crompton, 1 V. & B. 356; Goldicutt v. Townsend, 28 Bea. 445; see Caton v. Caton, L. R., 2 H. L. 127. It would seem not to be necessary that the representation should be made by a person knowing it to be untrue, it is sufficient if he makes it without knowing whether it be true or not. See the cases, ante, p. 90. But in Merewether v. Shaw (2 Cox, 134), Lord Thurlow observed that he knew of no case, either in law or equity, where a man making an honest representation, when called upon to give an account of the circumstances of another, had been made liable in this respect to answer what he had so represented. In Ainslie v. Medlycott (9 Ves. 13), there was a recital in a settlement that the intended wife was entitled to a certain sum, when in fact, from a fall in the funds, the amount was less; this was held not to amount to a binding representation, the statement being the result of a mere mistake. See Evans v. Wyatt, 31 Bea. 217. The represen- tation may be in any form, for instance, in that of a covenant or the like. Thus, where a father, who had. an interest in property, covenanted, on his son's marriage, that it was free from incumbrances, his covenant was held to postpone him to the parties taking under the settlement. Gower v. Gower, 1 Cox, 53. And' where real estate, subject to a mortgage, was settled with remainder after life estates to the first and other sons of the settlor in tail, and he covenanted against incumbrances, the effect in equity of such a covenant, as between the settlor and the parties beneficially interested under the settlement, was held to be to charge the mortgage debt on the other estates of the settlor; though of course this would not be to the prejudice of the rights of the mortgagee. Hughes v. Williams, 3 Mac. & G-. 683. The represelitation, if verbal, must not be of such a kind Representations with respect to Marriage. 311 that it is in point of fact, or can be resolved into, a mere or mere tm- promise; for in such a case the promise, being in considera- tion of marriage, must be in writing by the Statute of Frauds. Nor must it be a representation of intention, but of some matter of fact. This was the principal point decided in the case of Jorden v. Money (15 Bea. 372 ; 2 D., M. & G-. 318 ; and 5 H. L. C. 185), after much conflict of opinion between the highest judicial authorities. In this case the chief question was, whether a representation made on a marriage treaty that a particular bond should never be enforced against the intended husband, and that it had been abandoned, was binding on the party making it. There was another question as to whether the representation rested upon a valuable consideration. The case was first decided by the Master of the Rolls, Sir J. Rpmilly, who considered that it came within the principle that there was a represen- tation which the party who made it was bound to make good. The case came ultimately before the House of Lords, when it was held. Lord St. Leonards, diss., that for the rule to apply the representation must be of some fact as distin- guished from a statement of mere intention. See Pulsford V. Richards, 17 Bea. 87; Button v. Rossiter, 7 D., M. & Gr. 9. A person will be equally bound although he may make Acquieacence in no actual express representation, if there be on his part a propertyas'lnte- consent to or acquiescence in some act which can only be i«sts. rendered effectual by means of his interest as a consenting or acquiescing party. These are strictly cases in which one party acquiesces in his rights being affected or dealt with by another person. In D. of Leeds v. E. Amherst (2 Phil. 123), Lord Cottenham observed, that if a party having a right stood by and saw another dealing with property in a manner inconsistent with that right, and made no ob- jection while the act was in progress, he could not after- wards complain. Thus, a person having an interest in an estate who stands by and on a marriage allows it to be settled or otherwise affected, cannot set up this interest against parties claiming by virtue of the marriage {Munsden V. Cheney, 2 Ver. 150 ; Beverley v. Beverley, ib. 133 ; Scott V. Scott, 1 Cox, 366) ; and where the father of the intended wife, having a claim or right to curtesy out of her estate, allowed the marriage to take place upon the footing of waiver of his right and acquiescence in her right, it was held, that he could not. afterwards allege that such acquiescence was occasioned by mistake. Stone v. Godfrey, 5 D., M. & G. 76. 312 Husband and Wife, CHAPTER III. SETTLEMENTS OH CONVEYANCES IN FEAUD OF THE MAEEIAGE. In eontemplation of Mar- riage or not .. . . 312 General Principle , . 312 Settlement ieforeTreaty good 312 Communication to Mns- iamd 312 , ,» „. « o JJ.1 J. jyj. m. J. Dana, a Minor . . 313 Settlement after Treaty Acq_memenee by Hus- Unless for Value . . 313 Improper Settlement . . 314 In contemplation of Mar- riage or not — continued. jDoctrine of the Court. . 313 Msceeption to Rule , . 313 Assent of or Notice to Sus- iand 313 General principle. Settlement or conveyance be- fore commence- ment of marriage treaty is good. Communication to liusband un- necessary. Settlement or iconveyance after In contemplation of Marriage or not.} 'By marriage the husband acquires a considerable interest in his wife's pro- perty where it is not settled. If she is in possession of this property at the commencement of his courtship, it may not unreasonably be supposed to form some inducement to his proposal of marriage. There is, in effect, a sort of tacit re- presentation that the husband will become entitled to it on the marriage. See Lance v. Norman, 2 Rep. in Ch. 79; Howard v. Hooker, ib. 81. It is in accordance with the principles of equity that the court should not allow the fair expectations of the husband to be defeated by any secret conveyance made in contemplation of a marriage which sub- sequently takes place. It is clear, however, that a female is at liberty prior to the ■commencement of any marriage treaty to settle her property as she thinks fit, for this is not done in contemplation of a marriage following on the settlement and cannot be a fraud on the marital right {King v. Cotton, 2 P. W. 357, 674 n.; Strathmore v. Bowes, 2 B. C. C. 345; 1 Ves. jun. 22; Ball V. Montgomery, 2 Ves. jun. 193; England v. Downs, 2 Bea. 522); and unless a power of revocation be reserved, such settlements are in general irrevocable. M'Donnell v. Hesil- ridge, 16 Bea. 346; see ante, p. 292. In Strathmore v. Bowes {sup.), the disposition by the wife was during the marriage treaty with one person, which went off, and she afterwards married another, and the settlement was up- held. Nor is it necessary that it should be communicated to the intended husband unless made during his courtship and in contemplation of a marriage with him. But a settle- ment or conveyance by the intended wife after the com- Assent of or notice to Husband. 313 mencement of the treaty for marriage, which afterwards commencement o« takes place, is in general void so far as it is not in favour ™^Y^^° treaty, of a purchaser for value. See Lance v. Norman, 2 Eep. in Ch. 79; Blifhe's case, Fr. Ch. 91; Goddard v. Snow, 1 Euss. 485. For if the disposition by the wife rests upon valuable conBide- a valuable consideration, it cannot be impeached, though " °^' concealed from the husband. See Blanchet v. Foster, 2 Ves. sen. 264; Lewellin v. Cobbold, 1 Sm. & G. 376. That which appears to be the true rule on the subject has Doctrine oi the been thus stated by Mr. Roper (Law of Husband and Wife, °°""' vol. 2, p. 162, and see Mr. Jacob's note): — " Deception will be inferred if after the commencement of the treaty for marriage the wife should attempt to make any disposition of her property without her intended husband's knowledge or concurrence." This rule was adopted in Taylor v. Pugh (1 Ha. 614), and is that which is now acted upon (see Downes v. Jennings, 32 Bea. 290; Chambers v. Crabbe, 34 Bea. 457); although it was questioned in St. George v. Wake (1 M. & K. 623), and to a certain extent departed from in De Manneville v. Crompton (1 V. & B. 354); as to which case, however, see Taylor v. Pugh, sup. ; Lewellin V. Cobbold, 1 Sm. & G. 376. In Taylor v. Pugh (sup.). Exception to rule, the court, while adopting the rule above stated, considered that it was not appUcable where a female had been seduced by and was living under the protection of the person she afterwards married, and that under such circumstances she was justified in making a secret settlement upon herself. Consider Downes v. Jennings, 32 Bea. 290. But a settle- Not void at law. ment by the wife, though in fraud of the marriage treaty, would not be void at law, and it will not be void under the 27 Eliz. c. 4 {ante, p. 275), as the husband does not take as a purchaser. And after the husband's death, nothing having been, done to set it aside in equity, it may be valid in all respects. See Doe v. Lewis, 11 C. B. 1035. Assent of or Notice to Husband.^ Of course there can Not void if bus- • be no presumption of fraud where the husband assents to '""*"**™'si the disposition or settlement by the wife, or is cognizant of it. In Hunt v. 3Iatthews (1 Ver. 408, see n. (1), ed. Eaith.), the husband expressly assented to the settlement, and was hold bound by it. So he would be even though he were an —though an in- infant. Slocombe v. Glubb, 2 B. C. C. 545; Strathmore v. '""*! Bowes, 1 Ves. jun. 28. And upon this principle the decision in St. George v. Wake (1 M. & K. 610) seems to rest. In or is presumed to .that case the husband sought to set aside a settlement made Ja™ knowledge by his wife before marriage, and did not by his bill allege ignoiance of it. The court presumed that he had notice of 314 Husband and Wife. Notice to hus- banct. Acquiescence by liusbaud. Settlement im- proper. it, and therefore that he had no equity for relief. For if the husband has notice that his wife intends to make a settlement before the marriage it will be difficult for him afterwards to impeach it. Ashton v. M'Dougall, 5 Bea. 56; see Wrigley v. Swainson, 3 De G-. & S. 458. But he must be correctly informed as to the nature of the settlement, and it must be understood by the lady herself. Griggs v. Staplee, 2 De G. & Sm. 572; Prideaiix v. Lonsdale, 1 D., J. & S. 433. Acquiescence by the husband is also, in general, a bar to relief. Thus if he permit his wife to receive during her life the dividends of a fund settled by a deed made in fraud of his marital right, of which deed he was ignorant until after the marriage, it will be too late for him to dispute it after her death. Loader v. Clarke, 2 Mac. & G-. 382. But if the settlement be an improper one, executed by the lady without due caution and in the absence of proper advice, it will be set aside after her death at the instance of the husband, wholly irrespective of the question whether it was or was not in fraud of his marital right. Prideaux v. Lonsdale, 1 D., J. & S. 433. CHAPTER IV. EFFECT OP MARRIAGE ON THE CONTRACTS OF THE WIFE BEFORE AND DURING THE MARRIAGE. In general determines Con- tracts ietween themselves . 314 Prior Contracts of Wife with others 315 Wife's lialility . . . . 315 ActofUlO 315 Her Contracts during Mar- riage . ., .. ,. 315 In general deter- mines contracts between them- selves. Marriage, as a general rule, extinguishes all prior obliga- tions and contracts between husband and wife (Co. Lit. 264 b), unless made on the occasion of and in consideration of the marriage or the obligation is of a continuing nature, for instance, a covenant by the husband to pay his wife an annuity for her life. This is only suspended during the coverture, and is capable of being enforced by her for arrears accrued after his death. Cage v. Acton, 1 Ld. Kaym. 522; Milbourne v. Ewart, 5 T. R. 331; Fitzgerald v. Fitz- gerald, L. R., 2 P. C. 83; see Bonfield v. Hassall, 32 Bea. 217. And if the obligation or contract be entered into by the husband with his wife acting not in her own right, but as Contracts as to Marriage. 315 executrix or administratrix, it will only be suspended at law during the coverture. See Co. Litt. 351 b; Richards V. Richards, 2 B. & Ad. 452. Formerly, by the marriage the husband became responsible Prior contracts for his wife's prior debts aud contracts. The wife, however, ^"^({e!'''*'""™ was not discharged from them by reason of her mar- riage. During the coverture her separate estate, if she had any, .was liable, and this liability was nqt affected by the bankruptcy of the husband, and his discharge, though the debt was proved in the bankruptcy, but th6re were no assets available for payment of it. Chubb y. Stretch, L. R., 9 Eq. 535. After the coverture, if she survived, she again became wife's Uawuty. responsible personally as she was prior to the marriage. If her husband was the survivor, her estate (if any, including her ohoses in action unrecovered at the time of her death) was liable to such debts. Heard v. Stamford, 3 P. W. 409 ; see Norton v. Turville, 2 P. W. 144. On the other hand, the husband's liability for his wife's debts incurred prior to the marriage ceased with the coverture, unless he survived and administered to her estate, when he was hable to the extent of her assets. Heard v. Stamford, sup.; Ld. Thomond v. Ld. Suffolk, 1 P. W. 461. Now, by the Actofisro. 33 & 34 Vict. c. 93, s. 12, the husband will not be hable for his wife's ante-nuptial debts, but her separate property will be, where the marriage has taken place since the act, post. Chap. VI. Questions as to the husband's liability for necessaries, &c. Her contracts supplied to his wife usually arise at law. See the cases <^'^s^^^s^ collected, Ch. on Contracts, 153 et seq. It has been held, however, in equity, that a person who has advanced money to a married woman, deserted by her husband, for the purpose of her maintenance, and which has been actually so applied, is entitled in equity, though not at law, to recover such sums from the husband. Deare v. Soutten, L. R., 9 Eq. 151 ; see Harris v. Lee, 1 P. W. 482 ; Jenner v. Morris, 3 D., F. & J. 45, overruling May v. Skey, 16 Sim. 588. There would seem to be no clause in the recent act affecting either this principle of equity or the rules upon the subject, as to the wife's contracts where she has separate estate. 316 Husband and Wife. CHAPTEE V. OF THE INTEREST ACQUIRED ON THE MARRIAGE BY THE HUSBAND IN HIS WIFE's PROPERTY. Sec. 1. — Freeholds. Husband's iaterest. Act of 1S70. In Fee Husiand's interest Act of 1870 . . Tenancy iy the Ourtesy . . Natwre of Estate Separate Use ., Seisin Issue capable of in- heriting 316 316 316 316 317 317 317 317 318 Conveyance of .. , . 318 3 # 4 Will. 4, c. 74 . . 318 Husiand's consent . . 319 Acknowledged deed . . 319 Dispensing with consent 319 Estates Tail 320 Husband's interest . . 320 Earring entail .. . . 320 Act of 1870 ,. ..320 For Life 321 Actofliia .. ..321 Husbfinrt's riglits, wliere he ia Generally, "l The interest acquired by the husband in the property belonging to the wife, so much depends upon the particular natui-e of it, that it is expedient to consider the questions relating to such property very much in detail. This is the more necessary, having regard to the changes effected by the recent Act of 1870. In treating of each species of the wife's property in which the husband takes an interest, I have briefly referred to this act and the change made by it, reserving a more particular consideration of it for a separate chapter. In Fee.'} The husband acquires by the marriage a free- hold interest during the coverture in his wife's estates in possession at the time of the marriage (see Co. Lit. 67 a, 351 a; &Be Robertson v. Norris, 11 Q. B. 916), and formerly in such estates as during the marriage vested in her. But with respect to estates of tlie latter description, there has been an alteration eifected in certain cases by the Act of 1870, where property descends upon her as heiress or co-heiress of an intestate, ^ee. post, Chapter VI. Subject, however, to the operation of the act in those cases where it applies, the prior law is in force, and the husband will be entitled to an estate during the coverture. The husband and wife are seised in her right and not as joint tenants. Polyblank v. Hawkins, Doug. 329. But the husband alone may convey the estate or interest which is co-extensive with the coverture. Robertson v. Norris, sup. It may perhaps not be unimportant to observe, as the point not unfrequently arises in practice, that whatever Tenancy by the Curtesy. 317 rights the husband acquires by law in his wife's property guilty of rtoss will not be affected even by his gross misconduct, for in- "'*""'''"='• stance, adultery and desertion ; further than this, that they give the wife certain rights which may be made available either in the Divorce Court or by means of protection orders, and also, that where the property is of such a nature that the wife, according to the practice of the court, is entitled to a settlement out of it, the conduct of the husband will be taken into consideration in estimating what the wife shall receive. See Aubrey v. Brown, 2 Jur., N. S. 879 ; and Chapter IX. Tenancy by the Curtesy. '\ On the birth of issue capable Nature of estate. of inheriting, the husband will become entitled to an estate for his life in her freeholds of inheritance as tenant by the curtesy of England. Lit. s. 35; see Voller v. Carter, 4 E. & B. 173. He is tenant by the curtesy initiate on the birth of issue, which estate becomes consummate on the wife's death. Co. Lit. 30 a; Jones v. Davies, 7 H. & N. 507. This right extends to money agreed to be laid out in land (Sweetapple v. Bindon, 2 Ver. 536; Cunningham v. Moody, 1 Ves. sen. 176), and to the equitable inheritance of the wife ( Watts v. Ball, 1 P. W. 108); and although she takes Separate use. a life interest to her separate use, and the remainder in fee or in tail, he will be entitled. Morgan v. Morgan, 5 Madd. 408; Follett v. Tyrer, 14 Sim. 125; see Roberts v. Dixwell, 1 Atk. 607. But it has been held, that if the whole interest in the entire estate is vested in the wife for her separate use, the husband will not be tenant by the curtesy. Hearle v. Greenbank, 3 Atk. 716; Moore v. Webster, L. R., 3 Eq. 267. In Appletony. Rowley (L. R., 8Eq. 139), however, V.-C. Malins, after reviewing the authorities, decided that curtesy attached in such a case. The point, therefore (having regard to the decisions) would still seem open for future considera- tion, and is now of considerable importance, as by sect. 8 of the recent act, the wife will take an estate in fee descending upon her, as therein mentioned, to her separate use. Post, Chapter VI. There is no contingent right to curtesy capable of passing to the husband's assignees before the wife be- comes entitled to an estate of inheritance in possession. Gibbins v. Eyden, L. R., 7 Eq. 371. For the husband's seisin. right to attach, there must be actual seisin by the wife or possession of the lands or receipt, or right to the receipt, of the rents and profits (Co. Lit. 29 a, n. 3 ; De Grey v. Rich- ardson, 3 Atk. 471) ; a momentary seisin, however, is suffi- cient {Parker v. Carter, 4 Ha. 400), and it will not affect the right although the issue die before the seisin of the wife. 318 Husband and Wife. Issue capable of inheriting. Interest of wife. A married ■woman, witli her husband's con- currence, may dispose of iands and money sub- ject to be invested in the purchase of lands, and of any estate therein; and to release and extinguish powers OS a feme sole. Co. Lit. 29 b. There can be no curtesy of an estate pur autre vie (Stead v. Piatt, 18 Bea. 50): and the wife must be seised solely or as co-parcener or tenant in common, and not as joint tenant. Co. Lit. 183 a. But now the possession of one co-parcener or tenant in common is not the pos- session of another co-paroener or tenant in common (3 & 4 Will. 4, c. 27, s. 12), and cannot therefore confer the right to curtesy on the husband of the latter. There can be no curtesy of a remainder or reversion unless the particular estate be determined during the coverture (Co. Lit. 29 a); but this does not apply to the case of a mere subsisting lease or tenancy, which will not at all affect the right. See De Grey v. Richardson, 3 Atk. 469. The issue must be capable of inheriting. Therefore, where the estate is limited to the issue in tail male, the birth of a daughter does not confer the right. Co. Lit. 29 b. But the existence of issue of the wife by a former husband will not prevent the right of a second husband attaching, if the chil- dren of the second husband are capable of inheriting. Cr. Dig. tit. 5, s. 20, citing 8 Rep. 34 b {Paine' s case). The issue must be born alive, but the child need not have been heard to cry. Co. Lit. 29 b; Jones v. Ricketts, 10 W. E. 576. Conveyance of."] Subject to the rights which marriage and the birth of issue give to the husband in his wife's free- hold estates in fee, the ultimate estate is in the wife, and, if undisposed of, will descend to her heirs. She cannot, however, alone dispose of this interest, except by deed or will under a power, or by virtue of an agreement with her husband before marriage {Wright y. Englefield, Amb. 468; Rippon V. Dawding, ib. 6Q5; see Field v. Moore, 7 D., M. & G-. 691, 703), without the concurrence of her husband (unless dispensed with). Pos<, p. 319. With his concurrence, however, she may convey her estate by deed duly acknow- ledged under the 3 & 4 WiU. 4, c. 74, the Fines and Reco- veries Abolition Act. Before this act a married woman could have conveyed her interests in freehold estates only by fine or recovery. Now, by this act, every married woman may by deed dispose of lands of any tenure and money subject to be invested in the purchase of lands, and also dispose of, release, surrender or extinguish any estate which she alone, or she and her husband in her right, may have in any lands of any tenure or in any such money as aforesaid, and also release or extinguish any power -which may be vested in or limited or reserved to her in regard to any lands of any tenure or any such money as aforesaid, or in regard to any estate in any lands of any tenure or in any such money as aforesaid, as fully and effeo- Conveyance of. 319 tually as she could do if she were nfeme sole. The husband must concur in the deed, which must be acknowledged by her as directed by the act. The act does not extend to Not to extend to copyhold lands of or to which a married woman, or she and tSncMes.'"'^'"^ her husband in her fight, may be seised and entitled for an estate at law, in any case in which any of the objects to be eiFected by this clause could before the passing of the act have been effected by her, in concurrence with her husband, by surrender into the hands of the lord of the manor of which the lands may be parcel (s. 77). The clause does not relate to a disposition by a married woman tenant in tail, which is provided for by s. 40. Ante, pp. 197, 198. The powers of disposition given to a married woman by The powers of the act shall not interfere with any power which, indepen- ^ rmSlel"'™ dently of the act, may be vested in her, so as to prevent her woman by this c • • \, ~. • j.^T_ act not to iuter- irom exercising such power in any case, except so tar as by tere with any any disposition made by her under the act she may be pre- other powers, vented from so doing in consequence of such power having been suspended or extinguished by such disposition (s. 78). * Every deed to be executed by a married woman for any Every deed by a of the purposes of this act, except such as may be executed noTIxeciTted'by by her in the character of protector for the sole purpose of her as protector, giving her consent to the disposition of a tenant in tail, shall, J^jgeaby™^" upon her executing the same, or afterwards, be produced before a judge, &o. and acknowledged by her as her act and deed before a judge of one of the superior courts, or a master in chancery, or before two of the perpetual commissioners, or two special commissioners, who shall, before receiving the acknowledg- The judge, &c. ment, examine her, apart from her husband, touching her su'^aSMwiMK- knowledge of such deed, and unless she freely and voluntarily ment, to examine consent to such deed, shall not permit her to acknowledge ^^r hSimd.™ the same ; and in such case such deed shall, so far as relates to the execution thereof by such married woman, be void (ss. 79, 80). If by reason of residence beyond seas, or ill-health, or any n, from being other sufficient cause, any married woman shall be prevented * ma^rtld^'oman from making the acknowledgment required before a judge or be prevented from a master in chancery, or any of the perpetual commissioners, tnow'ifa'^e^t, the Court of Common Pleas or any judge of that court may special commis- . . . „ . *'.. ° ,, .'' sioners to be issue a commission specially appointing any person therein appointed. named to be commissioners to take the acknowledgment (s. 83). If a husband shall, in consequence of being a lunatic, idiot. Court of Common or of unsound mind, whether found such by inquisition or otah'nTbmd'^'' not, or shall from any other cause he incapable of executing scing lunatic, &c., may dispense _ . _ , with his cone court roll, or if his residence shall not be known, or he shall ^^^'^^ ®^^^p*^ a deed, or of making a surrender of lands held by copy of with his concur- 320 Husband and Wife. where the lord chancellor or other persona entrusted with lunatics, or the Court of Chan- cery, shall he the protector of a settlement in lieu of the hosband. Contingent, exe- cutory and future, interests, &c. Husband's iute- rest. Barring entail. Act of 1870. be in prison, or shall be living apart from his wife, either by mutual consent or by sentence of divorce, or in consequence of bis being transported beyond the seas, or from any other cause whatsoever, the Court of Common Pleas may, by an order to be made in a summary way upon the application of the wife, dispense with the concurrence of the husband; and all acts, deeds, or surrenders in pursuance of such order shall be done, executed or made by her in the same manner as if she were a feme sole, and shall (but without prejudice to the rights of the husband as then existing independently of this act) be as good and valid as they would have been if the' husband had concurred: this clause shall not extend to the case of a married woman where under this act the lord chancellor, or other person intrusted with the care of the persons and estates of lunatics, or the Court of Chancery, shall be the protector of a settlement in lieu of her husband (s. 91). This power of disposition by a married woman now em- braces contingent, executory and future interests, possibilities and rights of entry, immediate or future, and vested or con- tingent (8 & 9 Vict. c. 106, s. 6); and estates may be dis- claimed (s. 7). The interest of a married woman in the proceeds of real estate directed to be sold can only be disposed of by an acknowledged deed. Franks v. Bollans, L. E., 3 Ch. 717. Estates Tail.'] The husband takes the same interest in his wife's estates tail during the coverture as in her estates in fee, and on the birth of issue capable of inheriting, he becomes tenant by the curtesy {ante, p. 317); and, according to the latest case on the subject (Appleton v. Rowley, L. R., 8 Eq. 139), he wiU take an interest as tenant by the curtesy in her estates of inheritance, though limited to her separate use. As to her disposition of her estate tail, see ante, p. 197. The husband of a female tenant in tail, who pays off and takes an assignment of a charge on the entailed property, will have no claim against the remainderman for interest on the charge accrued in the lifetime of his wife. Amesbury V. Brown, 1 Ves. sen. 477. The Act of 1870 does not, it would seem, apply to the case of a female tenant in tail, for an estate tail cannot pro- perly be said to descend upon her as heiress or co-heiress of an intestate. Post, Chapter VI. This means, it is appre- hended, such an estate as the person dying intestate could by will, had he made one, have disposed of, and he could not so have disposed of his estate tail, which devolves according to the instrument creating the entail. Copyhold Estates. 321 Estates for Life.] The husband acquired by the mar- Husband's in- riage a' freehold interest during the coverture in his wife's life ^"^'' '"• estates, belonging to her at the time of the marriage, or de- volving upon her afterwards. See Co. Lit. 67 a. And this is still the case, with the exception presently noticed. Under sec. 8 of the Act of 1870 (post), any freehold ActoUSTO. estate descending upon a woman married after the passing of the act as heiress, &c. will belong to her as separate estate. This would apply to an estate pur autre vie coming to her as special occupant by descent. See Reynolds v. Wright, 2 D., F. & J. 590. But this seems to be the only case in which the act could apply to an estate for life, no other estate for life being capable of descending. As to the wife's equity to a settlement out of her equitable freehold estates, see Ch. IX. Sec. 2. — Copyhold Estates. Of Inheritance .. .. 321 Husband oAid Wife, liom seised .. .. .. 321 Curtesy 321 Gavelkind Lands ,, .. 321 Conveyance of . . .. 321 Legal Interests . . . . 321 Equitable Interests . . 322 Estates Tail 322 Barring 322 The husband on the marriage becomes seised during the of inheritance, coverture with his wife and in her right of her copyhold Husband and wife, estates of inheritance vested in her at the time of, and for- ^°^ ^^^^A- merly vesting in her, during the marriage. But now estates devolving on the wife as heiress or co-heiress of an intes- tate are subject to the Act of 1870, where that applies. Chapter VI., post. They are seised by entireties. 2 Watk. Cop. 152. On his death in her lifetime the seisin remains in her. lb. On her death in his lifetime he will not be Curtesy. entitled to curtesy unless by special custom, which also re- gulates the extent of the right. lb. 92. And under this custom he may be entitled, though there has been no issue of the marriage. lb. 93. In gavelkind lands the curtesy Gavelkind lands, consisted of a moiety. Bac. Abr. Gavelkind (A.) The husband and wife may convey her interest (unless Disposition by equitable) in her copyholds without the foi-malities pre- ""sband and wife, scribed by the Fines and Recoveries Abolition Act (3 & 4 Will. 4, c. 74). That act does not apply to those legal estates in copyhold lands in fee, which the wife with her hus- band could before the act have conveyed by surrender. See s. 77, ante, p. 319. For the general custom of copyholds is, Legal interests. W. T 322 Husband and Wife. Equitable inte- rests. A married "woman to be separately exa- mined on the surrender of an equitable estate in copyholds, as if such estate were legal. Estates tail. Barring legal Equitable. and was prior to the act, for the steward to examine the wife separately on a surrender of her legal interests. 1 Watk. Cop. 63. But surrenders were not as a rule applicable to the conveyance of the equitable estates of mairied women, which could however, it was thought, be disposed of by re- covery, or by fine. 1 Watk. Cop. 240, n. (See the opinion contra, and the point discussed, 1 Scriven, Cop. 69 et seq.) And it has finally been held (since the act of Will. 4) that they could not be. Cooper v. Green, 3 D., F. & J. 58. But it was necessary, when fines and recoveries were abo- lished, and married women were enabled to dispose of their equitable interests in copyholds by surrender, to introduce a provision for their separate examination in such cases, and this has accordingly been effected by the following section of the Fines and Recoveries Abolition Act: — " In every case in which a husband and wife shall surrender any copyhold lands in which she alone, or she and her husband in her right, may have an equitable estate, the wife shall, upon such surrender being made, be separately ex- amined by the person taking the surrender in the same manner as she would have been if the estate to which she alone, or she and her husband in her right, may be entitled in such lands were an estate at law instead of a mere estate in equity; and every such surrender, when such examina- tion shall be taken, shall be binding on the married woman and all persons claiming under her; and all surrenders here- tofore made of lands similarly circumstanced, where the wife shall have been separately examined by the person taking the surrender, are declared good and valid" (s. 90). As to a conveyance by deed under s. 77, see Scriv. Cop. 748, n. The wife is under the same disabilities as to the disposal of her copyholds without her husband's concurrence, or by will, as she is with respect to her freeholds, unless they are settled to her separate use or she has a power to dispose of them. See 8 & 9 Vict. c. 106, ss. 6, 7 (ante, p. 320), as to the conveyance of contingent interests, &c. As regards estates tail belonging to the wife, the husband acquires, in general, the same interest as in her freeholds. Where the estate is legal it must be barred either by a surrender {ante, p. 216), in which the husband must concur, where there is a custom under which the legal estate tail of a married woman can be effectually barred with her hus- band's consent; or by a surrender, in which he concurs, under the 40th section of the 3 & 4 Will. 4, c. 74. Where the estate is equitable, the mode of barring it is, under this act, by deed or surrender in which the husband must concur. lb. ss. 50, 53, 77, 90. Wife's Chattels Real in Possession. 323 Sec. 3. — Chattels Real in Possession. Belonging to Wife at the Time of Marriage . . 323 Veft in Husband . . 323 JRediietion into Posses- sion . . ., .. 323 Lease — Mortgage . . 323 Conveyance to Husband 324 Agreement .. . . 324 Judgment — Forfeiture . 324 Survivorship .. .. 324 to Wife at the Time of Marriage — contd. Husband taking jure mariti or as Adminis- trator .. ..324 Devolving on Wife during Marriage— ZZ |- 34 Vict. c. 93 824 As Next of Kin, or in other may . . ., 324 Wife's Will .. ..325 Belonging to her at the Time of the Marriage.^ The Vest in husband effect of marriage on the wife's chattels real, legal (Co. Lit. ™ "»"'»«;«• 351 a), or equitable {Packer v. Wyndham, Pr. Ch. 412, 418 ; Turner's case, 1 Ver. 7; Pitt v. Hunt, ib. 18) in possession belonging to her at the time of the marriage, or coming to her during the marriage, where the Act of 1870 does not apply (see post. Chapter VI.), is to vest them in her husband, sub- ject to the wife's equity to a settlement where such equity Equity to setue- exists. Post, Chapter VIII. It seems, indeed, to have been «>«"'■ held at one time, in one or two early cases ( Turner's case, J^r selwate'iMe 1 Ver. 7 ; see 4 M. & C. 394), that a term conveyed to the wife's separate use could be disposed of by the husband unless he assented or was a party to the trust. This was probably a case of separate use, as also Pitt v. Hunt {ib. 18), and Tudor V. Samyne (2 Ver. 270), which, as reported (but see 4 M. & C. 389, n. (c) ), was clearly a case of separate use, was decided upon the authority of Turner's case. See Sanders v. Page, 3 Eep. Ch. 223; Davis v. Thorneycroft, 6 Sim. 420. But it is clear now that a husband cannot deal with property settled to his wife's separate use. The husband must dispose of his Reduction into wife's chattels real to which he becomes entitled by the mar- possession. riage by some assurance taking effect in his lifetime, not by his will. Co. Lit. 351 a. The assignment may be with or without consideration. Mitford v. Mitford, 9 Ves. 99. A partial disposition of the term or part of it by lease will Partial dispo- also be effectual to the extent of the disposition, but no fur- ^'"™' ther. Thus, a lease for twenty years out of a term of forty Lease, by the husband alone is valid for the twenty years, and the wife surviving will take the residue. The husband's exe- cutors being entitled to the rents during the twenty years' lease (Co. Lit. 46 b ; see Druce v. Denison, 6 Ves. 385, 389), unless the husband and wife have joined, when the rent will, it has been said, be incident to the reversion, and belong to the wife surviving. 1 Pres. on Abs. 345. So a y2 324 Husband and Wife. Mortgage. Husband taking conveyance to himself. Agreement by husband to dis- pose of. Judgment. Forfeiture of term. ITo reduction or disposition, wife surviviQg. Husband sur- viving. Property vesting in liusbandj'are mariti and as administrator to his wife. partial disposition by the husband by mortgage will also be effectual to the extent of it. Pitt v. Pitt, T. & E. 180; Clarke v. Burgh, 2 Coll. 221 ; Co. Lit. 351 a ; see further as to mortgages, Chapter VII. It often happens that the husband does not wish either to sell or mortgage the property, but to possess himself of it absolutely. In such case an assignment by the husband to a trustee for himself will exclude the title of the surviving wife. See 9 Byth. Con v. by Jarman, p. 13. Whether the husband's mere agreement to sell, lease or mortgage will be as binding as an actual disposition has not been ■ settled authoritatively. In Stead v. Creagh (9 Mod. 42), an agreement by the husband to grant a lease of his wife's leaseholds was held binding against the wife surviving. In Druce V. Denison (6 Ves. 385), a similar question was raised before Lord Eldon, but not decided, though his opinion was in favour of the agreement being binding. lb. 395. There are other things which are equivalent to an actual disposition by the husband. Thus a judgment in ejectment for her term in his favour will bar her right. Co. Lit. 46 b ; but see ib. n. (6). And the term may be forfeited as by the waste, outlawry or attainder for felony of the husband (Co. Lit. 351 a), or be taken in execution for his debt. Wildman v. Wildman, 9 Ves. 177. If the wife's chattels real have not been reduced into possession, and have not been affected by any matter or proceeding which would be equivalent to a disposition by him, the wife surviving will be entitled to them. Wildman v. Wildman, sup. On the other hand, the husband surviving will be entitled in his marital right without being obliged to administer to her estate. Co. Lit. 46 b. But if the wife be dispossessed of her term, he must administer. Co. Lit. 351 a. The distinction between pro- perty which the husband takes in his marital right and that which he takes as administrator to his wife is in some cases important. The former will not be liable to her debts prior to the marriage, the latter will. Heard v. Stamford, 3 P. W. 409. Devolving during marriage. As next of Wn of intestiite, or in any other way. Devolving upon her during the Marriage — 33 ^ 34:Vict. c. 93.] The recent statute has made a most important alteration in the law as regards personal property of married women. So far, indeed, as regai-ds leasehold property coming to a woman, married since the passing of the act, in ani/ other way than as next of kin or one of the next of kin of an intestate the law would seem to be unaltered, and the rules previously stated as applicable to leaseholds belonging to the wife before, and vesting in the husband on the mar- riage, are equally applicable to leaseholds, if they do not Wife's Chattels Real Contingent, Sfc. 325 come to her during the marriage, as next or one of the next of kin of an intestate ; but if they do, then tlie seventh sec- tion of this act (post, Ch. VI.") would seem to apply, and she will be entitled to them (subject to the trusts of any settle- ment) for her separate use. This is upon the assumption Peisonai property that the words " personal property " are used in their strict cuatte'is re^i. legal sense and include chattels real, which may perhaps be open to argument, and there is no interpretation clause to aid in the construction of the act. It will be observed that there is no limit in respect of value to the " personal pro- perty" coming to the wife under this section, but any "sum of money " to which she becomes entitled under any deed or will is not to exceed 200Z. The intention seems to have been to give a married woman, for her sepai-ate use, all property coming to her by descent (see 8th section), or as next of kin (sec. 7), and money not exceeding 2001., under any deed or will, as well. The wife cannot bequeath her chattels real, or personal wue'swiiu estate, unless by virtue of a power or an agreement with her husband, or he assents (D. of Marlborough v. Ld. Godol- phin, 2 Ves. sen. 75), or unless the property be separate estate. As to her equity to a settlement, see Ch. IX. Sec. 4. — Wife's Chattels Real, Contingent and Reversionary. Husband's Interest.. .. 325 Act of 20 ^ 21 Vict. c. 57 . . 325 AetofWIO 325 Wife's Equity — Survivor- ship 326 Husband surviving must administer .. .. 326 Formerly, by the marriage the husband became entitled Hnsband's inte- to his wife's reversionary and contingent interests in chattels ''^**- real belonging to her at the time of, or coming to her during, the man-iage, of which he might have disposed, subject to the same rules which prevail in the case of her interests in pos- session (Donne v. Hart, 2 R. & My. 360 ; Box v. Jackson, Dr. t. Sug. 84; Hanson v. Keating, 4 Ha. 1), unless the interest was such that it could not possibly vest in him. Duberly v. Day, 16 Bea. 33. The Act of 20 & 21 Vict. c. 57 20 & 21 vict. (Malins' Act), the substance of which is stated hereafter (post, "■ ^'• Section 7), is large enough in its terms to comprise chattels real. It applies to reversionary and contingent interests in any personal estate whatsoever. As regards such interests in chattels real, however, the husband could, prior to the Act of 1870, in general have disposed of them; there seems in these cases, therefore, no necessity for the application of the Act of 326 Husband and Wife. Interests rever- sionary at the time of the mar- riage absolute afterwards. Wife's equity. Survivorship. Husband sur- viving must ad- minister. 20 & 21 Vict. c. 57. The Act of 1870, however, where it applies, has made an important alteration as regards the husband's interest in such cases. See the observations, ante, p. 325, and Ch. VI., post. The act (s. 7; see Ch. VT., post) applies to personal pro- perty to which, during the marriage, the wife shall become entitled. This gives rise to the question whether the section applies where the interest is reversionary or contingent at the time of the marriage and becomes absolute during the mar- riage. If it does apply to such a case the wife will take it on its so becoming absolute, to her separate use. If it does not apply, the husband will take the same interest as heretofore in her property, reversionary or contingent, at the time of the marriage, notwithstanding it becomes absolute during the coverture. See tit. " Marriage Settlements," as to the effect of similar words in covenants to settle future property. These reversionary and contingent interests, if they vest in the husband, and are of an equitable nature, or equity has a control over them, are subject to the same rules with regard to the wife's equity to a settlement, as equitable interests in possession. Post, Ch. IX., "Wife's Equity to a Settlement." The same rules also, as to survivorship, are as applicable to such interests, as to legal interests in possession, except that where the interest never vested in possession in the husband, in his wife's lifetime, his right is not absolute where he is the survivor; but he takes as administrator to his wife's estate. Co. Lit. 351 a: Wms. Exors. 656. Husband's inte- rest. Sec. 5. — Specific Chattels. '.Interest.. .. 326 Belonging to Wife at Time of Marriage .. ..327 Vest absolutely in Husband, . 327 Distinction betmeenChattels and Clwses in Action . . 827 Reversionary Interest in Specific Chattels.. .. 327 The personal estate of the wife, other than leaseholds, may consist either of specific chattels, as furniture and moveables of every description, or it maj' consist of what are usually called choses in action. Post, Section 6, Marriage is an absolute gift to the husband of the goods, personal chattels and effects of which the wife in her own right is possessed at the time of the marriage or (formerly) of which she became possessed during the coverture. Co. Lit. 351 b; Coomes v. Elling, 3 Atk. 679. This general rule is now, however, subject, like that which applies to interests in chattels real, to the qualification contained in the 7th section of the recent act. Post, Ch. VI, The distinction between the wife's specific chattels and her Reversionary Interest in Specific Chattels. 327 chases in action is material, the right to specific chattels Belonging to belonging to tlie wife at the time of marriage, or (when martie!"^ °' not subject to the recent act), devolving upon her during the vest absolutely marriage, so absolutely vests in the husband, that he may i° tusband. bring an action for them in his own name; and, if he sur- vive his wife, he will be entitled to them without adminis- tering to her estate, and if he die in her lifetime, they will not survive to her, but devolve on his executors. 1 Bac. Ab. tit. "Baron & Fem. (C.);" 1 Rop. Hus. & W. 169, ed. Jac; see Bird v. Peagrum, 13 Com. B. 639. With respect, Distinction be- however, to chases in action belonging to her at the time a^l'ihoaM i? of, or coming to her during, the marriage, the husband must action. reduce them into possession in his lifetime, otherwise she will be entitled to them by survivorship. Co. Lit. 35 b ; Richards V. Richards, 2 B. & Ad. 447, post. Section 6. If, however, he be the survivor, he will take them, not in his own right, but as administrator of her estate. Grosvenor v. Lane, 2 Atk. 180. As to the specific chattels of the wife, which are reversion- Eeveraionary ary at the time of the marriage, and are not affected by the JmS.'" °''™''° recent act, they do not vest absolutely like her specific chattels in possession. If they fall into possession, or the right to the actual possession of them accrues during his lifetime, his right would probably become absolute, not otherwise. It was stated by Blackburn, M. R., in Box v. Jackson (Dr. t. Sug. 55), as the result of Mitfard v. Mitford (9 Ves. 87), and other cases, that they had established the right of a married woman surviving her husband to her chases in action not reduced by him into possession, and to her revei-sionary and contingent interests in personal chattels not vesting in possession during the coverture against her husband's general and particular assignee. As to the effect of the Act of 1870, see post, Ch. VI., and as to its operation in cases of interests reversionary at the time of the marriage, which become absolute during the marriage, see ante, p. 326. Sec. 6. — Wife's Chases in Action immediate at the Time of or during the Marriage. Effect of Marriage formerly Seduction into Possessi-on.. 329 and now .. 328 During Marriage or go to Wife .. ..329 What are Choges in Action . 328 Unless Husband a Pur- Debts 328 chaser .. .. 329 Rents — Legacies 829 Survivorship .. .. 3S0 Income — Sills and What requisite to . . 330 Notes, ^c 329 Effect of receipt of Earnings of Wife — Interest — Part of Chistom of London . . 329 Principal ,. .. 330 328 Husband and Wife. Jiednotion into Possession — cont. Transfer of Stock, <^"e. . Transfer to T?'ustees . . Appropriation to Hus- band .. Judgments — Decrees — Awards Bringing Action Assignment of .. .. Bills — Bonds — Mort- ont. 330 831 Reduction into Possession — Transfer of Mortgage. . Clioses in Action cont. 333 833 381 331 332 Mortgage iy Hnsland Agreement to assign . Confirmation ly Wife Release .. 883 833 334 834 832 332 Agahist whom Wife's right prevails .. 384 Before the recent act. Since the act. Effect of Marriage formerly and now.] As in the case of other personal property, marriage formerly operated as a gift of chases in action belonging to the wife at the time of the marriage or devolving upon her afterwards. Co. Lit. 351 b. The condition, however, was attached as it was to leaseholds, that they should be reduced into possession by the husband during the marriage, otherwise they went to the wife surviving (i6.), and this rule is unaffected as regards such choses in action as still vest in the husband on or during the marriage. It will be seen, however, in Ch. VI., that as regards the earnings mentioned in the 1st section of the recent act, and the deposits and annuities mentioned in the 2nd section, they do not vest in the husband at all; and that as regards the several kinds of property mentioned in the 3rd, 4th and 5th sections of the act, they are now subject to the wife's control during the marriage, though she may take no steps prior to the marriage to make them her own ; and that as regards the " personal property" mentioned in sec. 7, if it consists of choses in action coming within the operation ' of that section, the wife will be entitled to them for her separate use. The rules, however (presently stated) which were generally applicable to choses in action in all cases prior to the act will be so still in many cases, but every case now arising must be considered carefully with reference to the operation of the act. See Ch. VI. What are.] Under the denomination of choses in action, that is, property which is recoverable by action or suit, are included such property as debts by obligation or contract (see Coppin v. , 2 P. W. 496 ; Meredith v. Wynn, Pr. Ch. 312), mortgage debts secured by a mortgage in fee or for years. Bates v. Dandy, 2 Atk. 207 ; Honner v. Morton, 3 Euss. 72, n. The case of Pacher v. Wyndham (Pr. Ch. 412) is contra as to mortgages in fee, but there' is no distinction now between mortgages in fee or for years ; the mortgage debt is considered as the principal, the land Choses in Action — Reduction into Possession. 329 the mere security. It is immaterial that there is no cove- nant for payment. King v. King, 3 P. W. 358. So rents Rents. ( I Rop. Hus. & Wife, 205, ed. Jac), legacies {Blount v. Legacies. Bestland, 5 Ves. 515), residuary personal estate {Baker v. Hall, 12 Yes, 497), costs of a suit ( Coppin v. , 2 P. W. 496), a fund in court {Johnson v. Johnson, 1 Jac. & W. 472, 475; Heath v. Lewis, 10 Jur., N. S. 1093), the income of property and arrears of such income {Salwey v. Sal- wey, Amb. 692 ; Wilkinson v. Charlesworth, 10 Bea. 324), money in the hands of third persons appropriated to the use As to money in of the wife {Twisden v. Wise, 1 Ver. 161; Fleet Y.Perrins, f^^^^"^^'^^^ L. R., 4 Q. B. 500), bills and promissory notes {Connor v. buis and notes. Martin, 3 Wils. 5 ; Mason v. Morgan, 2 A. & E. 30 ; Gaters v. Madeley, 6 M. & W. 427 ; Hart v. Stephens, 6 Q. B. 937; Scarpellini v. Acheson, 7 Q. B. 864; Dawson V. Prince, 2 D. & J. 41), and, generally, all property of the like kind not actually in possession, but recoverable by action or suit are choses in action. See Wms. Exors. 793 ; Fleet V. Perrins, 4 Q. B. 500. Formerly the wife's earnings belonged to the husband. Earnings of wife, and if they were invested, the stock or other security also belonged to him, and no agreement by the wife in respect of such security was binding on him. Lamphir v. Creed, 8 Ves. 599. A partial alteration was made in the law by the 20 & 21 Vict. c. 85, s. 21, and 21 & 22 Vict. c. 108, s. 6, under which protection orders could be obtained in certain cases. But the provisions under these acts will be rendered unnecessary by the larger measure of protection afforded by the 1st section of the Act of \?,70, post, Ch. VI. With respect to those special cases where the wife carries According to cus- on trade on her own account by virtue of the custom of t"™ »' London. London, see Pulling's Customs of London, 179, 484, 485 ; Langham v. Bewett, Cro. Car. 68 ; and see now the recent act, sect. 1, post, Ch. VI. Reduction into Possession.^ These and all other choses During maniago in action belonging to the wife at the time of the marriage <"^ so to wife ; and which then vest in the husband must be reduced into possession during the marriage, or the right to them will survive to the wife on his death or after the marriage has been dissolved {Heath v. I^ewis, 10 Jur., N. S. 1093), un- nniess hnsbana less he has become a purchaser of them, as, for example, by " piu^ohaser. an ante-nuptial settlement. Norbone's case, Freem. Ch. 282. The case of Rudyerd v. Neirin {ib. 262) is contra; but it is clear that the husband may become a purchaser of his wife's choses in action if the settlement he so framed. But the husband cannot become a purchaser of his wife's choses 330 Husband and Wife. Glioses ill action charged on hus- band's property. Sui-vivorship. What requisite to a reduction into Eeceipt of in- terest ; of part of principal. Transfer of stock. Stock transferred to "wife. in action by a post-nuptial settlement. Lanoy v. D. of Athol, 2 Atk. 448. Where the chose in action is in the nature of a charge on the husband's property at the time of the marriage, it will, it has been held, merge absolutely, and there will be no right of survivorship in the wife {Seys v. Price, 9 Mod. 220), unless the charge is of a continuing Hature, as an annuity to her for her life, in which case the payments accruing due to her after his death may be recovered. See Fitzgerald v. Fitzgerald, L. R., 2 P. C. 83. If the husband survive, he will be entitled, as administrator of his wife, to her choses in action {Humphrey v. Bullen, 1 Atk. 458); but they will be liable to the payment of her debts {Heard v. Stamford, Ca. t. Tal. 173); and if he die intestate without administer- ing, his next of kin must administer to his and her estate. Att.-Gen. v. Partington, 10 Jur., N. S. 825. In Fleet v. Perrins (L. R., 4 Q. B. 500), where money was in the hands of a third person belonging to the wife, who died leaving her husband surviving, the money being still outstanding, and he also died without having become possessed of it, and without having in any way interfered with it, it was held that the wife's representatives, and not the husband's, were the proper parties to sue for it. In order that the act of the husband may operate as a reduction into possession, there must be an intention to that end coupled with some act giving effect to the intention. When a chose in action has actually been received by the husband, it, of course, would be very strong, if not con- clusive, evidence of reduction into possession. See Rees v. Keith, 1 1 Sim. 388. But the receipt of the interest of a debt only, is no reduction of the debt into possession. Hart v. Stephens, 6 Q. B. 937; Howman v. Corie, 2 Ver. 190; see n. (1) ed. Raith. And reduction of part is no reduction of the residue. Nash v. JVash, 2 Madd. 133. If the wife's stock has been transferred into his sole name, this will be a reduction into possession, unless the husband is acting as executor or trustee. Baker v. Hall, 12 Ves. 497; Wall v. Tomlinson, 16 Ves. 413. Where the husband was a lunatic, and entitled to stock standing in the name of his wife, a transfer of the stock into the name of the accountant-general in the matter of the lunacy was held to be a reduction into possession. Re Jenkins, 5 Russ. 183. But if the husband permits the stock to be transferred into the name of the wife, described as the " wife of A. B.," it will not be a reduction into his possession. Wildman v. Wildman, 9 Ves. 174; see Shuttleworth v. Greaves, 4 M. & Cr. 35. In Ryland v. Smith (1 M. & Cr. 53), the wife was entitled to stock Choses in Action — Reduction into Possession. 331 and money, and the husband directed the stock to be trans- To trustees. ferred into the names of trustees for her separate use, and received the money himself, pui'chasing fresh stock with part of it; it was held that there was no reduction into pos- session of the original stock, but tliat the purchased stock belonged to the husband's representatives. And, as a general Transfer to trus- rule, a settlement of the wife's choses in action is binding on ^^^ °' settlement. her right by survivorship where tlie fund has been trans- ferred to trustees and invested upon the trusts of the settle- ment. Hansen v. Miller, 1 4 Sim. 22 ; Burnham v. Bennett, 2 Coll. 254; Anderson w. Abbott, iZBe&Abl; see Hamilton V. Mills, 29 Bea. 193. And the rule applies although she is an infant at the time of the settlement, if, on attaining her majority, she allows the fund to remain in the names of the trustees. Cunningham v. Antrobus, 16 Sim. 436. As to an agreement made by an infant at the time of the marriage where the fund is not reduced into possession be- fore the husband's death, see Ellison Y.Elwin, 13 Sim. 309; Borton V. Barton, 16 Sim. 552. Where a legacy to the wife consisted of a sum of money Appropriation to secured by a mortgage, a mere appropriation to the husband ''"^''™*- of the mortgage debt was held to be no reduction of the legacy into possession. Blount v. Bestland, 5 Ves. 515; Ex parte Norton, 8 D., M. & Gr. 258. Nor is an agreement Agreement tor to set off the legacy against money due to the testator from ^^''"°'^' the husband, though the husband and wife sign a receipt for the legacy, there must be a release. Harrison v. Andrews, 13 Sim. 595. A judgment recovered by the wife must be Judgments. reduced into possession. Fitzgerald v. Fitzgerald, 8 C. B. 611. If the husband recover judgment for a debt due to the Wife and die before execution, the wife is entitled and not the executors of the husband, where she is a party to the action (Oglander v. Boston, 1 Ver. 396; Bond v. Simmons, 3 Atk. 21), but otherwise where he may, and does, sue alone. Garforth v. Bradley, 2 Ves. sen. 676; Oglander v. Boston, sup. ; Richards v. Richards, 2 B. & Ad. 452. The benefit of a suit by both for money due in her right survives to her if he dies before a decree {Anon. 3 Atk. 726), and the benefit Decrees. of a decree in a suit for payment of the fund to them both, survives to her. Nanny v, Martin, Freem. Ch. 172. There are even oases to the effect that where the husband dies after a decree for an account, or for an account and payment of interest to him, and before actual payment, this will not bar the wife's right by survivorship. Adams v. Lavender, 1 M'Clel. & Y. 41 ; Hore v. Woulfe, 2 Ba. & Be. 424. But Decree declaring it is settled now that, at all events after a decree declaring t*"*' money be- that the money belongs to the husband or his assignee, the ""^^ 332 Husband and Wife. Bringing action in liis own name. Assignment of. Bills. wife will not be entitled by survivorship though, the husband may die before payment. Forbes v. Phipps, 1 Ed. 502; Hey gate v. Annesley, 3 B. C. C. 362; Tidd v. Lister, 10 Ha. 140; 3 D., M. & G. 857. But merely carrying over a fund in court to the account of the husband and wife is no reduction into possession. Prole v. Soady, L. E., 3 Ch. 220. It has been held that an award for payment of a sum of money to the husband in right of his wife changes the nature of the property, and his death before payment gives her no right by survivorship. Oglander v. Baston, 1 Ver. 396. In Gaters r. Madeley (6 M. & W. 427; see Sherrington V. Yates, 12 M. & W. 855—865) it was said by Parke, B., that if an action were brought by the husband in his own name for the recovery of a promissory note, this would amount to an election to take it. It would appear from this as if the learned judge considered the bringing an action in cases of bills and notes to be equivalent to a reduction into possession. With reference to the assignment of the wife's choses in action, bills and notes rest on a peculiar founda- tion. If payable to bearer the iaterest in them passes by mere delivery, if to order by indorsement. The holder or indorsee can sue in his own name. But this is not in general the case with other choses in action, though there are some Bonds. statutory exceptions. As to bonds, it was laid down in an early case that they could not be assigned so as to bind the wife surviving. Burnett v. Kinaston, Pr. Ch. 118, 121. General principle. And with reference to the assignment of choses in action generally, it has been observed that it would be strange if a man should in any way be able to transfer to another a larger or better interest than he had in himself. Mitford V. Mitford, 9 Ves. 87. In several subsequent cases, indeed, the doctrine of the court was considered to be that an assign- ment of the wife's present chose in action was equivalent to a reduction of it into possession, where made for a valuable consideration. See Johnson v. Johnson, 1 Jac. & W. 472 — 6. And in Honner v. Morton (3 Russ. 65 — 86), Lord Lynd- hurst observed that an assignment of the wife's present chose in action, which he can immediately reduce into pos- session, operates as a reduction into possession, but that the assignment of any other choses in action operates only yVo»» the time when theTiusband can reduce the subject-matter of the assignment into possession. This doctrine, however, might be difficult to support, and has not been acted upon in later cases {Ellison v. Elicyn, 13 Sim. 309, 317 ; Elwyn v. Williams, 12 L. J., Ch. 440; Levasseur v. Scratton, 14 Sim. 116; Ashby v. Ashby, 1 Coll. 553), which rest upon the principle laid down in Mitford v. Mitford (9 Ves. 87). Assignment of present chose in action. Choses in Action — Reduction into Possession. 333 But although the mere assignment ■will not pass the interest Assignee reociv- in the property so as to defeat the wife's right by survivor- *"« '^»8°<=i '"■"'• ship, yet if the assignee afterwards receives the fund assigned or otherwise reduces it into possession in the lifetime of the husband the wife's right by survivorship will be barred. See Allday v. Fletcher, 1 D. & J. 82. But the assignee must not be guilty of laches. If he allows an order of the court to be made directing a transfer of the chose in action to the wife, he will be without remedy. Hutchings v. Smith, 9 Sim. 137. Cases may arise in which, although there is no actual proof of payment to the assignee, yet a presumption of pay- ment may arise, as where the assignee of the fund (a legacy) is himself the party liable to pay it. Allday v. Fletcher, 1 D. & J. 82. As to the assignment of mortgages, it was held in Burnett Mortgages. V. Kinaston (Pr. Ch. 118), that an assignment by the hus- band of the wife's mortgage in fee was inoperative against her administrator de bonis nan, though the husband survived and administered to her estate, but died before the mortgage debt was paid. And in Mitchelmore v. Mudge (2 Giff. J 83), it was held that a deposit by the husband of his wife's deeds, which she held as equitable mortgagee, was not a reduction into possession of the money due to her as such mortgagee. But in Williams v. Cooke (4 Giff. 343), where Transfer of mort- the husband transferred the deed which had been deposited ^''^'^" with his wife by way of equitable mortgage and the debt thereby secured, and the wife joined in the transfer and acknowledged the deed, she was held to be barred. With respect to an assignment by way of mortgage by Mortgage by hos- the husband of his wife's present chose in action, which he artionf '^'"^^ "' can immediately reduce into possession if he think fit, for in- stance, stock, V.-C. Wood observed in Pigott v. Pigott(L. R., 4 Eq. 560), that "as regards the dealing with it by way of mortgage, I do not know that any such case has arisen, or what would be the result of such a dealing." In the case before the vice-chancellor, the question arose as to the effect of a mortgage by the husband of his wife's interest in land tax redeemed under the 38 Geo. 3, c. 60. The husband had registered his marriage under sect. 78 of the act. The vice- chancellor held that by so doing he might under that section have absolutely disposed of the whole, but that as he had not done so, but only to the extent of the mortgage, she was entitled to it, subject, however, to the mortgage as in the case of Clarke v. Burgh (2 Coll. 221), where the mort- gage was of the wife's leaseholds. Where an actual assignment would be inoperative to bar Agreement to the wife's right by survivorship, of course a mere agreement '^^^'^- 334 Husband and Wife. ronflrmation by wife after hus- band's death. Assignment. Against wbom ■wife's right prevails. to assign would be so. Thus, an agreement bj the husband to sell his wife's legacy contingently charged upon land to the devisee of the land, is no reduction of the legacy into possession where the purchase-money is not paid. Har- wood V. Fisher, 1 Y. & C, Eq. Ex. 110. In Bates v. Dandy (2 Atk. 207) indeed, and some earlj' cases, an agreement to assign the wife's mortgage was held to bar her right by survivorship ; but this was before the doctrine laid down in Mitford v. Mitford (9 Ves. 87) and Pardew v. Jackson (1 Russ. 145) was established. In Rees v. Keith (11 Sim. 388), the husband agreed to transfer the mortgage and received payment of the amount of the mortgage debt ; it was held to be reduced into pos- session, though the mortgaged property had not been actually transferred. The case seems to have been put by the court upon the same ground as if the mortgagor had paid ; cons. Mitchelmore v. Mudge, 2 GifF. 183, ante, p. 333. It would seem, that a recognition by the wife after her husband's death, of an assignment by him, will not bind her, as a confirmation of it at all events, without a fresh con- sideration. In Honner v. Morton (3 Russ. 65), an assign- ment of a chose in action by the wife after her husband's death, reciting a previous assignment by him, and purporting to be made subject to it, was held to be no conflrraation of such assignment binding upon her. A release by the hus- band of his wife's choses in action, immediately recoverable, will bar her right by survivorship. Rogers v. Acaster, 14 Bea. 445, 450. Where the wife is not barred, her right will prevail against assignees under the husband's bankruptcy (^Saddington v. Kinsman, 1 B. C. C. 44, n. 1; Gayer v. Wilkinson, ib'. 50, n.; Mitford v. Mitford, 9 Ves. 87), or (formerly) insolvency {Hornsby v. Lee, 2 Madd. 16^, or against a particular assignee for value. Ib. As to the wife's equity to a settlement, see Ch. IX. Sec. 7. — Reversionary Choses in Action. Prior to 20 ^' 21 Tict. c. 67, and Act of 1870 . . . . 334 Husband could not dis- pose of . . .. 334 Agaifist Wife surviving 335 Realty or-PersonaMy . . 336 20 4- 21 Vict. U.57.. .. 336 Pisposition of Rever- sionary Interests . . 336 Where restriction . . 336 Settled on Marriage . . 337 Act of 1870 337 Could not be dls- Law prior to 20 Sf 21 Vict. c. 57, and Act of 1870.] posed of. Although the wife's reversionary choses . in action at the Glioses in Action in Reversion. 335 time of the marriage, and (prior to the Act of 1870), ac- cruing during the marriage, like her other personal estate, Tested in the husband subject to her right by survivorship if not reduced into possession; yet, until the 20 & 21 Vict. c. 57, the husband and wife could not together, nor could either separately release {Kemp v. Kelsey, Pr. Ch. 544), assign or otherwise dispose of (Pardew v. Jackson, 1 Euss. 1 ; Box V. Jackson, Dr. t. Sug. 42, in which all the earlier cases are cited), her reversionary choses in action legal or equitable, so as to bar her right by survivorship. Nor Though tenant for could the reversionary fund be disposed of, although the ''*•= '^'='^*=^*- tenants for life or other persons entitled to the interests prior to the reversion assigned such interests to the wife, or to the husband and wife. Whittle v. Henning, 2 Phil. 731 (overruling ffall v. Hugonin, 14 Sim. 595 ; Creed v. Perry, ib. 592, and other cases). And where the fund was settled to the wife's separate use for life, with I'estraint on anticipation, remainder to the survivor of the husband and wife, the remainder could not be disposed of. Ritchie v. Broadberit, 2 J. & W. 456. And even where it was settled to her separate use for life without restraint on anticipation, the capital being reserved to her absolutely if she survived her husband, she had no power of disposition over the capital during the coverture. Lee v. Muggeridge, 1 V. & B. 123; see Duberly v. Day, 16 Bea. 33; 5 H. L. C. 388. The earlier case of Ellis v. Atkinson, 3 B. C. C. 565, is contra, as to which, see ib. n. (1), Belt's ed. And the wife's consent to court would not take the wife's consent to the payment of w^^'tohus- the fund to the husband on its falling into possession. Box v. Box, Box V. Jackson, Dr. t. Sug. 42 ; Whittle v. Hen- ning, 2 Phill. 731, 734. The husband therefore could not, nor could the wife in any way deal with, or dispose of, her reversionary chose in action, so as to defeat her right by survivorship, but as against every one but the wife surviving valid against an his disposition was valid. White v. St. Barbe, 1 V. & B. ^?^',^g"^ ^""■- 405. With respect to the effect of a release on the wife's rever- Release, sionary chose in action, it was laid down in an early case ( Thompson v. Butler, 2 Moor. 522), that the husband could not release his wife's annuity for life. But in Hore v. Becher (12 Sim. 465), where a bond had been given before the marriage to a trustee to secure an annuity to the wife, it was held that the husband might release the bond, and that the security, being released, the annuity was gone. The later case of Rogers v. Acaster (14 Bea. 444), how- ever, decided that a husband could not release his wife's reversionary chose in action; and see Fitzgerald v. Fitzr- 336 Husband and Wife. Eealty or per- sonalty. gerald (L. E., 2 P. C. 83), in which it was observed that Hore V. Becher could scarcely be reconciled with the doc- trine of equity as to the inalienable character of a wife's reversionary interest. It is sometimes a question whether the property is pure personalty, or in the nature of land which the wife can con- vey by deed duly acknowledged. Upon this point it has been held that a married woman can dispose of her rever- sionary interest in the proceeds arising from the sale of real estate by an acknowledged deed. May v. Roper, 4 Sim. 360; Briggs^. Chamberlain, 11 Ha. 69; TuerY. Turner, 20 Bea. 560; Franks v. Bollans, L. E., 3 Ch. 717; Hobby V. Collins, 4 De G-. & S. 289, is contra, but is not followed. Where, e converso, the fund consists of money to be laid out in land, it may also be conveyed by an acknowledged deed {Forbes v. Adams, 9 Sim. 462) ; but not money to be laid out in land or otherwise, advantageously. Smithwich V. Smithwich, 5 L. T., N. S. 23. Disposition 01 20 Sf 21 Vict. c. 57.] By the 20 & 21 Vict. c. 57 (Malins' interests'^ Act), which came into operation on the 1st January, 1858, after the 31st day of December, 1857, every married woman may by deed dispose of every future or reversionary interest, whether vested or contingent of herself or her husband in her right, in any personal estate whatsoever to which she shall be entitled under any instrument made after the said 31st day of December, 1857, except such a settlement as after mentioned, and may also release or extinguish any power which may be vested in or limited or reserved to her in i-egard to any such personal estate, as effectually as if she were a feme sole, and may also release and extinguish her right or equity to a settlement out of any personal estate to which she or her husband in her right may be entitled in possession under any such instrument as aforesaid, save and except that no such disposition, release or extinguishment shall be valid unless the husband concur in the deed by which the same shall be effected, nor unless the deed be nniesa restriction, acknowledged by her. Nothing therein contained shall extend to any reversionary interest to which she shall be- come entitled by virtue of any deed, will or instrument by which she shall be restrained from alienating or affecting the same (s. 1). The deed is to be acknowledged pursuant to the 3 & 4' Will. 4, c. 74 (s. 2). Power under act The power of disposition given by the act is not to interfere oOier'no^""""^ with the exercise of any power vested in the wife indepen- dently of the act, unless such power shall be suspended or extinguished by some disposition made under the act (s. 3). Choses in Action during Marriage. 337 The act does uot apply to interests in personalty settled upon uniesa restrained her by any settlement, or agreement for a settlement, made creaUng™tercBts ; on the occasion of her marriage (s. 4). See Clarke v. Green, ^^ j^^y ^^^ settled 2 H, & M. 474. on marriage. Act of 1 870.] The question as to the true construction of the 7th section of the act, as regards the general per- sonal property to which the wife is entitled in -reversion at the time of the marriage, and which vests absolutely in possession afterwards, has already been adverted to. Ante, p. 326. The Act of 1870 would seem to have no other effect upon the 20 & 21 Vict. c. 57, than to withdraw from the opera- tion of the latter act property which is subject to the former. For example, if a reversionary chose in action vests in the husband at the time of the marriage, such property may be disposed of imder the 20 & 21 Vict. c. 57. But if it devolves upon the wife during the marriage, and is of such a character as to come within sec. 7 of the Act of 1870, it is no longer subject to, or capable of being dealt with under the prior act, but becomes the separate property of the wife under the Act of 1870. Sec. 8. — Choses in Action devolving during the Marriage. In Possession .. .. 337 | In Reversion ., .. 337 With respect to the several kinds of property mentioned in sects. 1, 2, 3, 4 & 5 of the Act of 1870 {post, Ch. VI.), the law has been materially altered by that act, as already in part pointed out, ante, p. 328. As to the property mentioned in sec. 7, the distinction has already been referred to between the unlimited value of the " personal property" and the limit in amount to the " sum of money" therein mentioned. As regards such immediate choses in action of the wife devolving during the marriage as are not subject to the operation of the act, they will vest in the husband, as they would have done prior to the act, and the same rules will apply to them as have already been . stated with regard to choses in action in possession at the time of the marriage. Ante, p. 327. If the choses in action in revcrsi devolving during the marriage are reversionary at the time of their devolution, then, if not of such a nature as to be subject to the Act of 1870, they will be subject to the ordi- nary incidents of property which was reversionary at the time of the marriage. See the previous section (Sec. 7) of this title, ante, p. 334. w. z 338 Husband and Wife. Seg. 9. — Wife's Life Interests in pure Personal Estate. tn Possession at the Time of tJie Marriage — Assign- ment by Husband . . 338 Wife's Rights hy Survivor- ship 338 In Reversion .. . . 338 In possession at the time of ttie marriage. . Survivorship. In reversion at the time of the marriage. The wife's life interest in possession, in pure personal estate, like her absolute interest, when not alFected by the Act of 1870 {post, Ch. VI.), vests in her husband on the marriage, subject, liowever, to the wife's right by survivor- ship. For although the husband may assign it to the extent of the income accruing during the coverture, he cannot do so beyond it. In Elliott v. Cordell (5 Madd. 149) and Stanton v. Hall (2 R. & My. 175), it was held that an assignment of the wife's life interest to an assignee for value was valid, and that she had no equity to a settlement out of it. In this case the husband and wife were both living, and no question was raised as to the operation of the assignment on the income which might accrue after the death of the husband if his wife survived him. In Stiffe V. Everett (1 M. & C. 37), the court refused to allow a fund in which the wife had a life interest to be absolutely transferred to her husband, for as she might out- live him her interest as to the income accruing after his death would be reversionary. See Harley v. Harley, 10 Ha. 325. In Nixon v. Nixon (2 J. & L. 416), it was observed that the life interest of a married woman to arise after the determination of the coverture could not during the coverture be in any manner affected. lb. 421 ; and see Tidd V. Lister, 3 D., M. & G. 857, 874. The rule laid down in Elliott v. Cordell and Stanton v. Hall, therefore, is still applicable, subject to the qualifica- tion that any interest accruing to the wife after her hus- band's death cannot be affected by his assignment, unless such assignment be made under the 20 & 21 Vict. c. 57. As regards the life interest of the wife, when of that nature that it would fall within the 7th section of the Act of 1870 {post, Ch. VI.), but is reversionary at the time of the marriage (which has taken place since the act), and after- wards and during the marriage falls into possession, see the observations ante, p. 326. When it does not exist at the time of the marriage, but devolves, whether in possession or reversion, during the marriage, and is of the description specified in that section, it is separate property of the wife, and may be disposed of accordingly. Act of 1870 (33 Sf 34 Vict. c. 93). 339 CHAPTER VI. The Act op 1870 (33 & 34 Vict. c. 93). Married Women's Property Act (33 4- 34 net. 0. 93) . 339 Ea/rnings of Married Women (s. 1) . . 389 340 is. 2) Property in the Funds (S.3) Property in Joint Stock Company (s. 4) Property in a IViendly, <^c. Society (s. 5) . . Deposit of Monies in fraud of Creditors (s-6) Personal Property or Money not exceeding 2001. coming to Mar- ried Woman during the Marriage {s. 7) . . Freeholds, Copyholds or Oustomai'yholds de- scending upon her (s. 8) How Questions as to Ownership to ie set- tled (s. 9) . . Married Woman may effect Policy of In- surance (s. 10) . . Insurance iy Bushand for lenefit of Wife (ii-) Married Woman may maintain Action (_s. 11) 340 341 341 341 342 342 342 342 342 343 Married Women's Property Act — continued. Busband not to be liable on Wife's Ante-nup- tial Contracts (s. 12) 343 Married Woman having separate Property to be liable to Parish for Maintenance of Husband (s. 13) .. 343 Married Woman having separate Property to be liable for Mainte- nance of Children (s. 14) Commencement of Act (9a August, 1870) (s. 15) JVot to extend to Scot- land («. 16) . . Short Title [s.n) Seal Property subject to the Act 344 Sections .. ..344 Estates Tail . . . . 344 Estate pur autre rie . . 344 Personal Property subject to the Act 344 Distinction between hinds of ,, .. 344 Fraud on Husband . . 344 On Creditors .. .. 344 Section 7 . . . . 344 Policies . . . . . . 345 Liability of separate Estate for Debts . . 345 343 343 343 343 The statute 33 & 34 Vict. c. 93, which has already so fre- quently been referred to, has made very considerable altera- tions in the law of husband and wife. These altera,tion3 have been already in part pointed out. The act is so short and of so much importance that most of the sections are here given entire, a few sections only, not having special reference to the wife's property, being abridged. The act is entitled " An Act to amend the Law relating to the Property of Married Women" (9th August, 1870). " The wages and earnings of any married woman acquired Earnings of or gained by her after the passing of this act in any employ- to'to'deemed™ z2 340 Husband and Wife. their own pro- perty. Deposits in savings banlcs by a married wonuin to be deemed her separate pro- perty. Proviso. As to a married woman's property ment, occupation, or trade in which she is engaged or which she carries on separately from her husband, and also any money or property so acquired by her through the exercise of any litei'ary, artistic, or scientific skill, and all investments of such wages, earnings, money, or property, shall be deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be mar- ried, and her receipts alone shall be a good discharge for such wages, earnings, money, and property" (s. 1). "Notwithstanding any provision to the contrary in the act of the tenth year of George the Fourth, chapter twenty- four, enabling the commissioners for the reduction of the national debt to grant life annuities and annuities for terms of years, or in the acts relating to savings banks and post office savings banks, any deposit hereafter made and any annuity granted by the said commissioners under any of the said acts in the name of a married woman, or in the name of a woman who may marry after such deposit or grant, shall be deemed to be the separate property of such woman, and the same shall be accounted for and paid to her as if she were an unmarried woman ; provided that if any such de- posit is made by, or such annuity granted to, a married woman by means of moneys of her husband without his consent, the court may, upon an application under section nine of this act, order such deposit or annuity or any part thereof to be paid to the husband" (s. 2). " Any married woman, or any woman about to be married, may apply to the governor and company of the Bank of England, or to the governor and company of the Bank of Ireland, by a form to be provided by the governor of each of the said banks and company for that purpose, that any sum forming part of the public stocks and funds, and not being less than twenty pounds, to which the woman so apply- ing is entitled, or which she is about to acquire, may be transferred to or made to stand in the books of the governor and company to whom such application i§ made in the name or intended name of the woman as a married woman entitled to her separate use, and on such sum being entered in the books of the said governor and company accordingly the same shall be deemed to be the separate property of such woman, and shall be transferred and the dividends paid as if she were an unmarried woman ; provided that if any such investment in the funds is made by a married woman by means of moneys of her husband without his consent, the court may, upon an application under section nine of this act, order such investment and the dividends thereof, or any part thereof, to be transferred and paid to the husband" (S.3). Act of 1870 (33 3f 34 Vict. c. 93). 341 " Any married woman, or any woman about to be mar- *» *" » man-iea . -,'' ,. ..•,,iT, /» woman 8 property ried, may apply m writmg to the directors or managers ot in a joint stock any incorporated or joint stock company that any fully paid- oompany. up shares, or any debenture or debenture stock, or any stock of such company, to the holding of which no liability is attached, and to which the woman so applying is entitled, may be registered in the books of the said company in the name or intended name of the woman as a married woman entitled to her separate use, and it shall be the duty of such directors or managers to register such shares or stock ac- cordingly, and the same upon being so registered shall be deemed to be the separate property of such woman, and shall be transferred and the dividends and profits paid as if she were an unmarried woman ; provided that if any such in- vestment as last mentioned is made by a married woman by means of moneys of her husband without his consent, the court may, upon an application under section nine of this act, order such investment and the dividends and profits thereon, or any part thereof, to be transferred and paid to the husband" (s. 4). " Any married woman, or any woman about to be mar- As to a married ried, may apply in writing to the committee of management taTs«;i'efy.°'"'^^ of any industrial and provident society, or to tlie trustees of any friendly society, benefit building society, or loan society, duly registered, certified, or enrolled under the acts relating to such societies respectively, that any share, benefit, deben- ture, right, or claim whatsoever in, to, or upon the funds of such society, to the holding of which share, benefit, or deben- ture no liability is attached, and to which the woman so applying is entitled, may be entered in the books of the society in the name oi' intended name of the woman as a married woman entitled to her separate use, and it shall be the duty of such committee or trustees to cause the same to be so entered, and thereupon such share, benefit, debenture, right, or claim shall be deemed to be the separate property of such woman, and shall be transferable and payable with all dividends and profits thereon as if she were an unmarried woman; provided that if any such share, benefit, debenture, right, or claim has been obtained by a married woman by means of moneys of her husband without his consent, the court may, upon an application under section nine of this act, order the same and the dividends and profits thereon, or any part thereof, to be transferred and paid to the husband" (s. 5). " Nothing hereinbefore contained in reference to moneys Deposit ot moneys deposited in or annuities granted by savings banks or moneys JJJ^*^"'? m"'''"" invested in the funds or in shares or stock of any company shall as against creditors of the husband give validity to any 342 Husband and Wife* Personal property not exceeding 200i. coining to a married woman to be her own. Freehold property coming to a mar- ried woman, rents and profits only to be her own. How questions as to ownership of property to be settled. Married woman may effect policy of insurance. As to insurance of a husband for benefit of his wife. deposit or investment of moneys of the husbantl made in fraud of such creditors, and any moneys so deposited or in- vested may be followed as if this act had not passed" (s. 6). " Where any married woman after the passing of this act shall during her marriage become entitled to any personal property as next of kin or one of the next of kin of an in- testate, or to any sum of money not exceeding two hundred pounds under any deed or will, such property shall, subject and without prejudice to the trusts of any settlement affect- ing the same, belong to the woman for her separate use, and her receipts alone shall be a good discharge for the same" (s. 7). " Whei'e any freehold, copyhold, or customaryhold pro- perty shall descend upon any woman married after the passing of this act as heiress or co-heiress of an intestate, the rents and profits of such property shall, subject and without prejudice to the trusts of any settlement aifecting the same, belong to such woman for her separate use, and her receipts alone shall be a good discharge for the same" (s. 8). " In any question between husband and wife as to pro- perty declared by this act to be the separate property of the wife, either party may apply by summons or motion in a summary way either to the Court of Chancery in England or Ireland according as such property is in England or Ire- land, or in England (irrespective of the value of the property) the judge of the county court of the district in which either party resides, and thereupon the judge may make such order, direct such inquiry, and award such costs, as he shall think fit ; provided that any order made by such judge shall be subject to appeal in the same manner as the order of the same judge made in a pending suit or on an equitable plaint would have been, and the judge may, if either party so require, hear the application in his private room " (s. 9). " A married woman may effect a policy of insurance upon her own life or the life of her husband for her separate use, and the same and all benefit thereof, if expressed on the face of it to be so effected, shall enure accordingly, and the con- tract in such policy shall be as valid as if made with an un- married woman. " A policy of insurance effected by any married man on his own life, and expressed upon the face of it to be for the benefit of his wife or of his wife and children, or any of them, shall enure and be deemed a trust for the benefit of his wife for her sepai'ate use, and of his children, or any of them, according to the interest so expressed, and shall not, so long as any object of the trust remains, be subject to the control of the husband or to his creditors, or form part Act of 1870 (33 Sf 34 Vict. c. 93). 343 of his estate. When the sum secured by the policy becomes payable, or at any time previously, a trustee thereof may be appointed by the Court of Chancery in England or in Ire- land according as the policy of insurance was effected in England or in Ireland, or in England by the judge of the county court of the district, or in Ireland by the chairman of the Civil Bill Court of the division of the county, in which the insurance office is situated, and the receipt of such trustee shall be a good discharge to the office. If it shall be proved that the policy was effected and premiums paid by the hus- band with intent to defraud his creditors, they shall be en- titled to receive out of the sum secured an amount equal to the premiums so paid" (s. 10). " A married woman may maintain an action in her own Married women name for the recovery of any wages, earnings, money, and ^?fon!*''"*'° ™ property by this act declared to be her separate property, or of any property belonging to her before marriage, and which her husband shall, by writing under his hand, have agreed with her shall belong to her after marriage as her separate property, and she shall have in her own name the same remedies, both civil and criminal, against all persons whom- soever for the protection and security of such wages, earnings, money, and property, and of any chattels or other property purchased or obtained by means thereof for her own use, as if such wages, earnings, money, chattels, and property belonged to her as an unmarried woman; and in any indict- ment or other proceeding it shall be sufficient to allege such wages, earnings, money, chattels, and property to be her property" (s. 11). " A husband shall not, by reason of any marriage which Husband not to shall take place after this act has come into operation, be wn'S^ontracte liable for the debts of his wife contracted before marriage, before marriage, but the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy such debts as if she had continued unmarried" (s. 12). It has been held, that property settled to her separate use with restraint on anticipation will be liable under this section, Sanger v. Sanger, L. R., 11 Eq. 470. A married woman having separate property is to be liable to the parish for the maintenance of her husband" (s. 13), A married woman having separate property is to be liable to the parish for the maintenance of her children (s. 14). Act to come into operation at the time of its passing commencement (9 August, 1870) (s. 15). ""«='■ Act not to extend to Scotland (s. 16), to scouana!'''"'* May be cited as " The Married Women's Property Act, siiort title. 1870" (s. 17), 344 Husband and Wife. Sec. 8, Keal property. Ambiguity of. Estate pur autre vie. Real Property.^ The section applicable to real property is the 8th. It will be seen that the operation of sec. 7 is limited to the property therein mentioned to which a woman, married after the passing of the act, shall during her marriage become entitled (subject to the trusts of any settlement) . The words in italics are not in the 8th section, relating to real property. But the words " shall descend upon any woman married after the passing of the act," might seem to imply descent during the marriage, notwithstanding the want of express reference to descent during the marriage. But the point is not clear, and it may be contended that the section applies where the property descends, after the passing of the act, upon an un- married woman, who afterwards marries, as well as where it descends, during the marriage, upon a woman married after the passing of the act. The point is important. In the one case, if the devolution contemplated by the section is devolution during the marriage only, then, although the marriage is after the act, the husband will, according to the old law, take the same interest as before in his wife's real property coming by descent, if it belonged to her at the time of the marriage, and there is no settlement, although it has devolved upon her since the passing of the act. In the other case, if devolution is meant, whether upon an unmarried or married woman, he will not. It has already been stated that it is considered that this section cannot apply to an estate tail. Ante, p. 320. An estate pur autre vie is, however, an estate capable of descending {Reynolds v. Wright, 7 Jur., N. S. 246), and as such would come within the operation of this section. Distinctions be- Personal Property.] The first six sections of the act ^ ™ " ■ apply to the property mentioned in those sections, quite irrespective of the time when the marriage took place, Fraud on husband, whether before or after the passing of the act. At the end of the 2nd, 3rd, 4th and 5th sections, there is a proviso that if the husband's money has, without his consent, been applied in the procuring of the deposit, annuity, investment, shares, stock, debentures, &c. therein respectively men- on creditors. tioned, they shall be transferred and paid to him ; and by sec. 6, as against creditors of the husband, his money so applied in fraud of them may be followed. The sections preceding the 7th relate to property of a specified descrip- sec. 7. tion. Sec. 7 is more general. Several important questions which may arise under this section have already been ad- verted to. Ante, pp. 326, 338. For this section to apply, the wife must have married after the passing of the act, and the property must come to her during the marriage. Mortgages, SfC. of Wife's Property. 345 By sec. 10, a wife may effect a policy upon her own or sec lo. her husband's life for her separate use, and her husband Policies ot in- may effect a policy on his own life for the benefit of his wife or wife and children, her interest being for her separate use. The policies in these cases must, upon the face of them, show the intent ; and a policy effected by the hus- band on fraud of his creditors, gives them a right to a part of the sum assured equal to the premiums paid, but there is no provision in the event of the wife applying her husband's money improperly or fraudulently as against his creditors, in respect of the policy effected by her. Sec. 12 is restricted to the wife's debts contracted before the marriage; as to the liability of her sepai-ate estate for her debts generally, see Liability of sepa- j o>Tn o ./ ' ja(.g eslate lor post, p. 379. debts. CHAPTER VII. MORTGAGES OF AND PAYMENTS IN RESPECT OP WIFE's PROPERTY. Wife's Equity of Redemp- tion in Realty . . . . 345 Belongs to Wife . . 345 Reconveyance to Hus- iand . . .. . . 345 intention to vest in him beneficially . . 346 Exoneration of Wife's Es- tate ..' .. ..346 MoTtgagefor Husiand's Deit 346 Wife's separate Estate. 346 Parol Evidence of In- tention .. .. 347 Exoneration of Wife's Es- tate — continued. Wife's Debt before Mar- riage .. . . . . 347 Money raised for both . 347 Payments by Husband in respect of Wife's Estate . . 347 Mortgages .. .. 347 Paying for Wife'sEstate 348 Wife's Leaseholds . . .. 348 Wife's Right by Survi- vorship . . . . 348 Husband tahing Re- conveyance . . . . 348 Wife's Equity of Redemption in Realty.'] The property which is referred to in this section is, as a general rule, pro- perty either freehold or leasehold, in which the husband has acquired a certain ipterest by the marriage. Where any particular case or principle applies to her separate estate, it will be particularly adverted to. In mortgages of the wife's estates of inheritance, the equity Remains in wife of redemption is always prima facie in the wife and her resCTviuon't'o'^ heirs, although it may be in terms reserved to the husband husband. and his heirs {Innes v. Jackson, 1 Bligh, 104 ; Ruscombe V. Hare, 6 Dow, 1 ; Stansfield v. Hallam, 5 Jur., N. ,8. 1334) ; and if there has been no intention to vest the equity Keconvej-ance to of redemption in the husband, a mere reconveyance to him '''™ i'»""''«™i-.' 346 Husband and Wife. Intention to vest it In him bene- ficially. and his heirs will be immaterial, for they will be trustees for the wife. Stansfield v. Hallam, 5 Jur., N. S. 1334. But if it clearly appears that the intention was to reserve the equity of redemption to the husband and his heirs bene- Jicially, in fact, to make a new settlement, effect will be given to such intention accordingly (^Ib.; Heather v. O'Neill, 2 D. & J. 399 ; see Atkinson v. Smith, 3 D. & J. 186), as if a limitation to the husband and his heirs be superadded to the mortgage, having no necessary connexion with it. Innes V. Jackson, supra; Eddlestone v. Collins, 3 D., M. & G. 1. Thus, where the husband and wife mortgaged her free- holds, resei'ving the equity of redemption to the husband and wife, or either of them, and covenanted to levy a fine to the mortgagee for a term, and subject thereto to the hus- band and his heirs, and as part of the mortgage security copyholds of the wife were surrendered to the mortgagee in fee, the equity of redemption being reserved to the husband and his heirs, it was held that the copyholds were governed by the general rule, and that the equity of redemption was in the wife ; but that as to the freeholds the limitation of the uses of the fine to the husband and his heirs, subject to the mortgage term, had no connexion with the purposes of the mortgage or the proviso of redemption, but was alto- gether a new settlement, and that the wife had no equity therefore to redeem. Reeve v. Hicks, 2 S. & S. 403. Mortgage for tius- baud's debt. Mortgage of wife's separate estate. Exoneration of Wife's Real Estate.} If the husband and wife mortgage her estate for his debt, she is considered as a surety, and is entitled, after his death, to have her estate exonerated out of his assets real and personal. Tate V. Austin, 1 P. W. 264; Lewis v. Nangle, Amb. 150; Aguilar V. Aguilar, 5 Madd. 414; Lancaster v. Evors, 10 Bea. 154. The presumption is that such a mortgage is for the benefit of the husband, and this presumption will not be rebutted by the mere fact that the deed expresses that the money was paid to herself and her husband. Hudson v. Carmichael, Kay, 613. Where the mortgage is of the wife's separate estate for the husband's benefit, she is entitled, as a surety, to stand in the place of the mortgagee who is paid ofi", and her right is para- moimt to that of her husband's simple contract creditors, if the debt be a specialty debt. Hudson v. Carmichael, sup. This case is cited for lie principle, though the mortgage was of leasehold property. And it would seem the rule would be the same, although the mortgage be not of separate estate, lb. The dicta in Tate v. Austin (1 P. W. 264) and Clinton v. Hooper (1 Ves. jun. 187) are contra, but disapproved of in Exoneration of Wife's Real Estate. 347 Hudson V. Carmichael. See now, ante, p. 29, as to spe- cialty and simple contract debts. As to the effect of the husband's bankruptcy after a mortgage of the wife's estate of inheritance, see Gleaves v. Paine, 1 D., J. & S. 87. But ■where the intention of the wife is clear, that the husband shall have the mortgage money as a gift, this equity against his estate will not arise ( Clinton v. Hooper, 3 B. C. C. 201), nor will it if she receive the money for her separate use. Thomas v. Thomas, 2 K. & J. 79. Evidence is admissible to show the nature of the transac- Pami evidence of tion, and the evidence may be by parol ; thus it may be '°''=°"°°- admitted to show that the money was not paid to the hus- band, but applied in some other way (^Clinton v. Hooper, 3 B. C. C. p. 214; Hudson v. Carmichael, Kay, 613; Thomas v. Thomas, 2 K. & J. 79), or to show that the debt was that of the wife ( Gray v. Dowman, 27 L. J., Ch. 702), but not to contradict the deeds or other instruments. The wife may waive her right to exoneration, and parol evidence of her declaration to that effect to her husband's executor is admissible. Clinton v. Hooper, sup. If the mortgage debt existed before the marriage, and the wife's debt beiore husband on a transfer of the mortgage covenanted for pay- '"*""'^^' ment of the debt, his estate will not be liable to indemnify that of his wife {Bagot v. Oughton, 1 P. W. 347 ; Lewis V. Nangle, Amb. 150), and if the debt was originally that of the wife, and her estate was mortgaged to a person who afterwards inherited it as her heir, he wiJl have no right as against the husband in respect of the mortgage debt, where the estate is sufficient' to pay it. Gee v. Smart, 8 E. & B. 313. Where the money is raised partly for the purpose of pay- Money raised tor ing the wife's debts and partly for the husband, it seems '"'"'■ that a reference will be directed to ascertain how much was received by him, and for this alone he will be liable to his wife's estate. E. Kinnoul v. Money, 3 Sw. 208, n. There is no equity to exoneration where the money is raised under a joint power vested in the husband and wife of mortgaging the husband's property and the power precedes the limita- tions in favour of the wife. Scholefield v. Lockwood, 9 Jur., N. S. 1258 ; see Thomas v. Thomas, 2 K. & J. 79. The marginal note of the former states the limitation to the wife as preceding the joint power, but this is not in accordance with the facts as stated {ib. 738), nor with the judgment of the Lord Chancellor. Payments by Husband in respect of Wife's Peal Estate.] Mortgages. Where the husband pays off a mortgage on his wife's estate 348 Husband and Wife. Husband paying for wife's estate. Expenditure by husbaud on wife's estate. How far mortgage operates to defeat wife's riglit by aurvivorsliip. Husljand talting reconveyance to bimself. of inheritance, the question arises with what intention he did so (Pittr. Pitt, T. & R. 180—183); whether with the in- tention of discharging the estate absolutely, or of placing himself in the situation of the mortgagee who was paid off, and effect will be given to the intention accordingly. Where the husband paid the purchase-money and took the con- veyance of an estate, the purchase having been contracted for by his wife before the marriage, it was held that he had, as against her heir, a lien on the estate for the purchase- money, and, as it would seem, for money expended in lasting improvements. Neeson v. Clarkson, 4 Ha. 97 ; Maddison V. Chapman, 1 J. & H. 470. It may be observed, however, that a husband who lays out money on his wife's property and is afterwards divorced from her in consequence of her adultery, has no equity, to be recouped the sums he has ex- pended. Hamer v. Tilsley, Johns. 486. Wife's Leaseholds.] It has been already stated that a mortgage of the husband alone of his wife's leaseholds will be efectual. Ante, p. 323. The extent to which the mort- gage will operate, whether as a complete or partial alienation of the property, will depend upon the intention. As to this the rule would seem to be, that if nothing more is in- tended than to effect a mortgage, the alienation will not be absolute in equity against the wife surviving, but only to the extent of the mortgage, but otherwise if the intention be to mortgage, and in addition to appropriate the right of re- demption to the husband alone. Clarke v. Burgh, 2 Coll. 221 ; see Piffott v. Pigott, L. R., 4 Eq. 549. When a term is mortgaged and the husband pays off the mortgage and takes an assignment to himself, the property will be altered and the wife's right'excluded. 1 Preston on Abstracts, 346. Mr. Preston observes, that a re-assignment gives the husband the term at law under a new title, and the wife cannot assert any equity to control the legal title. Wife's Interest in Husband's Properti/ — Dower. 349 CHAPTEK VIII. OF THE wife's interest IN THE HDSBAND's PROPERTY. Sec. 1. — Dower and Freebench. Nature of Interest , Generally In Copyholds - Mnd Lands ■ ■ Gavcl- 349 349 350 350 What Estates Twt subject to '.. .. 350 Corporeal and Incor- poreal Hereditaments 350 Shares in Companies . . 350 Meversionary Estates . . 350 Power preceding Rever- sion .. Partnership Property. Trust or Mortgage Es- tates . . Eq-uity of Redemption . 350 350 351 351 851 351 351 351 Seisin . . . . . . In Deed or Law . . As joitit Tenant or Tenant in Common . . Legal Bar — Extinguishment — Forfeiture.. .. ..351 Jointure . . . . 351 Other Provision . . 351 Conveyance to Uses to tar Dower . . . . 351 Assignment of Satisfied Term 351 Custom of London, ^c. . 352 Fine and Recovery . . 352 3^4 Will. 4, c. 74 . . 362 Forfeiture .. ..352 Divorce— Adultery , . 352 Election 352 Express Declaration in Will ... .. ..352 Implication .. .. 352 Devise of part .. . . 352 Bequest of Rent-charge 352 Devise in Trust for Sale 353 Property given to Wife and others . . , . 353 Time of Election . . 353 Statute of Limitations . 353 Dower Act, 3^4 Will, i, 0.105 353 Widow entitled out of Equitable Estates . . 354 Disposition or Declara- tion by Husband . . 354 Devise of Realty to Widow .- ..355 Bequest of Personalty . 355 Agreement not to bar . . 355 p-iority of Legacies in bar 355 Operation of Act .. .. 355 Old Limitations to bar Dower .. .. 355 Execution of Convey- ance by Husband . . 355 Does not apply to Copy- holds . . . . . . 355 Gavelkind Lands . . 356 Fee with Executory Devise over .. . . 356 Mortgages— Debts .. 356 Assignment — Payment — Arrears . . . . . . 956 Nature of Interest.^ Where a man is seised of lands in Gensraiiy. fee or tail and marries, his wife, after his death, shall be endowed of the third part of such lands or tenements as were his at any time dm'ing the coverture, for her life, whether she hath issue by her husband or no (Lit. s. 36) ; provided the issue, if born, would have been capable of inheriting. lb. s. 53. Though dower is usually one-third, 350 Copyholds. Gavelkind lands. Husband and Wife. the wife in some cases is entitled by custom to the whole or a moiety (Lit. s. 166 ; Co. Lit. Ilia), as in some copyhold lands. The wife is entitled to freebench out of her hus- band's copyhold lands by special custom only (2 Watk. Cop. 72), which, where it exists, also determines what part she is to take, whether one-third, one-half, or in some cases the whole. lb. 87. The right usually attaches only the lands of which the husband dies seised, so that his wife's freebench is in general subject to his disposition. lb. 73. Li some manors, freebench attaches to lands of which the husband is a< arey<2»8e seised. Ib.lA.. Dower in gavelkind lands consists of one-half, but continues only so long as the widow remains chaste and unmarried. Bac. Abr. Gavel. (A.) The wife was not entitled if she was an alien. Watts' Case, 6 Moo. P. C. 216. See now 7 & 8 Vict. c. 66, by which it is enacted that any woman married to a natural- born subject or person naturalized shall be deemed to be naturalized (s. 16). As to an alien wife of an alien, see now 33 Vict. c. 14. Corporeal and incorporeal here- ditaments savour- ing of realty. Shares in com- panies, when. Not to estates in reversion. Life estate and reversion. Power preceding reversion. Partnerahip pro- perty. What Estates subject and not subject to.] Dower attaches on all corporeal hereditaments, and all incorporeal heredita- ments that savour of the realty (1 Eop., Hus. & Wife, by Jac. 342), and on such shares in companies possessed of land as are real estate {Drybutter v. Bartholomew, 2 P. W. 127); but there are very few companies whose shares are real estate. Dower also attaches on mines opened in the hus- band's lifetime; but not, it would seem, on mines unopened, though in lease. Stoughton v. Leigh, 1 Taun. 402. But, in Dicken v. Hamer (1 Dr. & S. 284), it seems to have been considered that a widow would be entitled to one-third of the income of the royalties of mines, though opened after her husband's decease; but not to one-third of the royalties as corpus. There is no right to dower where the husband has merely a reversion or remainder after a life estate. The old mode of conveyance to uses to bar dower is founded upon this dotttrine. Duncomb v. Duncomb, 3 Lev. 437. Under a general power of appointment, vested in the husband prior to his estate of inheritance, he could defeat his wife's dower by exercising the power; but if he did not do so the right attached. Doe v. Martin, 4 T. E. 39; Maundrell v. Maun- drell, 10 Ves. 265; Ray v. Fung, 5 B. & Al. 561. An estate purchased with partnership property for partnership purposes is not subject to dower {Phillips v. Phillips, 1 M. & K. 649), unless there is a distinct agreement that it shall be the separate property of one partner, to whom it Dower — Bar or Extinguishment — Forfeiture. 351 is conveyed, and that he shall be a debtor to the partner- ship for the purchase-money. Smith v. Smith, 5 Ves. 189. At law the wife was dowable out of the estate of a trustee or Trust or mortgage mortgagee; but not in equity. Noel v. Jevon, Fr. Ch. 43; ^^'"^^ Hinton Y. Hinton, 2 Ves. sen. 633; Flack v. Longmate, 8 Bea. 420; see Lloyd v. Lloyd, 4 D. & War. 356, 370. Where the estate was subject to a mortgage effected Je/ore Equity of reaemp- the marriage, the widow was entitled to dower out of the *'""• equity of redemption upon keeping down one-third of the interest. Squire r. Compton, 9 Vin. Ab. 227, pi. 60; see as to a mortgage after the marriage, Jackson v. Parker, Amb. 687. Seisin.'\ It was necessary formerly that the husband indeed. should be seised. The seisin might be in deed — i. e. per- '" ^'^' fected by entry or possession, actual or constructive, by means of a tenant (Co. Lit. 29 a, n. 3) — or in law, as where an estate descends on the heir who dies before entry. Co. Lit. 31 a ; see Dower Act, post. Sec. 3. But a sole seisin as joint tenant was necessary or as tenant in common with others ; seisin "J^'^o"' '" as a joint tenant was not sufficient (Lit. s. 45) ; nor was a momentary seisin sufficient. Sneyd v. Sneyd, 1 Atk. 442. It was necessary formerly that the estate of the husband Legal. should be legal. Godwin v. Winsmore, 2 Atk. 525; see now Dower Act, s. 2. ' Bar or Extinguishment — Forfeiture.'\ The right to Jointure. dower being in many cases an inconvenient one as regards property, several methods were devised for the purpose of Isarring the right. Thus, & jointure properly granted was a bar. And if the wife became entitled under her husband's other provision, covenant to a moiety of his estate, she was not entitled to dower out of the other moiety. Hamilton v. Jackson, 2 J. & L. 295. In Willis v. Willis (34 Bea. 340) it was held that a settlement of some of the husband's copyholds on his wife, to take effect after his death, was no bar to her right of freebench out of other copyholds. The most usual method of barring dower was by the Conveyance to familiar mode of conveyance called the conveyance to uses "^'^ '" '""'■ to bar dower. See Duncomb v. Duncomb, 3 Lev. 437, ante, p. 350. The right to dower was also barred if, on a sale, a Assignment of purchaser took an assignment, before the Satisfied Terms s='''sfl«'i te™- Act (8 & 9 Vict. c. 112), of a satisfied or attendant term to a trustee for himself {Radnor v. Vandebendy, Show. P. C. 69; Maundrell v. Maundrell, 10 Ves. 271), where such . term was precedent to the right of dower. Though such a term could not have been set up by the husband's heir or 352 Husband and Wife. Custom of Lon- don, &C. Fine and reco- very. 3 & 4 Will. 4, c. 74. Forfeiture. Divorce. Adultery. Express declara- tion in will con- taining gifts to wife. From Implication in will. Gift inconsistent with right to dower. Devise of part. Bequest of rent- charge. devisee against the widow. Swannock v. Lifford, 2 Atk. 208. And, by the custom of London, dower might and may be barred by a bargain and sale acknowledged before the Lord Mayor, or Recorder and an alderman, and enrolled in the Common Pleas of the city; and this custom (in substance) prevails in some other places. See 1 Byth. Conv., ed. Sw., 262 a. If the right attached it could be extinguished, formerly, by fine or recovery, and may be now by deed duly acknowledged pursuant to the Abolition of Fines and Ee- coveries Act. 3 & 4 Will. 4, c. 74, ante, p. 318 ; see Dent V. Clayton, 10 Jur., N. S. 671. A divorce a vinculo matrimonii was a bar to dower. Co. Lit. 33 b. Now, by the 20 & 21 Vict. c. 85, amended 21 & 22 Vict. c. 108, a dissolution of the marriage is substituted for a divorce a vinculo. Where the wife commits adultery, elopes and continues to live in adultery, and there is no subsequent reconciliation, her right will be extinguished. 13 Edw. 1, c. 34; Hetherington v. Graham, 6 Bing. 135; Woodward-^. Dowse, 10 C. B., N. S. 722; Bostock v. Smith, 34 Bea. 57.- If the divorce was a mensa et thoro (for which, by the acts above referred to, a judicial separation is substi- tuted), equity would not assist the wife, but left her to her remedy at law. Shute v. Shute, Pr. Ch. 111. Election.^ A widow might, before the Dower Act, have been put to her election between her dower and property given to her by her husband's will, where an intention to that effect was expressly declared {Boynton v. Boynton, 1 B. C. C. 445 ; Nottley v. Palmer, 2 Drew. 93), or was clearly to be implied (see Birmingham v. Kirwan, 2 Sch. 8s L. 452), from the will itself, and not from acts done in the testator's lifetime. Gibson v. Gibson, 1 Drew. 42. Since the act, however, it is less likely that cases should arise depending upon the doctrine of election, as most of those which, but for the act, would give rise to questions ol election, fall now within one or other of the sections of the act. It was necessary, in cases under the old law, in order that a case of election might arise, that the gift by the will should be clearly inconsistent with the right to dower. Lawrence v. Lawrence, 3 B. P. C. 483. As to a devise to the widow of part of the lands to which her right of dower attached see ib., and now ss. 4 and 9 of the Dowrer Act, post; Rowland v. Cuthbertson, L. E., 8 Eq. 466. There was no case of election where a rent-charge was devised by the husband to his wife, issuing out of property in which she had a right of dower, and which was devised to others. Dowson v. Bell, 1 Ke. 761 ; Harrison v. Harri- Dower — Election. 353 son, ib. 765; Holdich v. Holdich, 2 Y. C. C. 18; though the earlier cases of Arnold v. Kempstead, Amb. 466; Jones V. Collier, ib. 730; Wake v. Wake, 1 Ves. jun. 335, are contra; cons, the act, post, particularly ss. 4 and 9, and Rowland v. Cuthbertson, L. R., 8 Eq. 466. And where the wife was entitled to a jointure rent-charge on an estate, and her husband devised the income (except a small part) of the estate to her for life, it was held that there was no case of election. Salvin v. Weston, 12 Jur., N. S. 700. Nor Devise in trust where he devised the whole of the lands in trust for sale, '""■^*'^- for this was held not to imply any intention to devise the land otherwise than subject to its legal incident of dower, and this is still the rule. Ellis v. Lewis, 3 Ha. 310; Bend- ing V. Bending, 3 K. & J. 257. But a general power of leasing was held to be inconsistent with the right to dower, and a case of election arose. Hall v. Hill, 1 Dr. & War. 94; Grayson v. Deakin, 3 De G. & S. 298; Pepper v. Dixon, 17 Sim. 200; Parker v. Sowerby, 4 D., M. & G. 321 ; Bend- ing V. Bending, 3 K. & J. 257; the case of Warbutton v. Warbutton, 2 Sm. & G. 163, appears contra. So if the whole of the realty was devised together in general terms, and it was clear that one part was not to be subject to dower, a case of election arose. See Roadly v. Dixon, 3 Russ. 192. And if a testator devised his real estates equally Property given to be divided between his wife and others, this raised a case otj^jg" """^ of election, as there could be no equality if the wife was to have her dower and, in addition, the same share as the others. Chalmers v. Storil, 2 V. & B. 222; Dickson v. Robinson, Jac. 503; Roberts y. Smith, 1 S. & S. 513; see the act, particularly ss. 4 and 9, and Rowland ^ .Cuthbertson, L. R., 8 Eq. 466. So if part of the property was given to Property given to a devisee for life, for this was inconsistent with the widow's ^otiier f or ufe. right of dower. Miall v. Brain, 4 Mad. 1 19. Most of the preceding cases must now be considered with reference to the Dower Act. Where the widow's right is not barred under some one of the sections of the act, a case of election may still arise. Where a case of election is raised, the widow may elect when siie may even after sixteen years, if she was ignorant of her right to ''^°'" dower. Sopwith v. Maughan, 30 Bea. 235. Dower is an interest in land, within the Statute of Limita- statute of Limi- tions, 3 & 4 Will. 4, c. 27, and will be barred by non-claim '*"™- within the time limited by that act. Marshall v. Smith, 10 Jur., N. S. 1174; post, tit. "Limitations." Dower Act, 3^4 Will. 4, c. 105.] By this act (29 W. A A 3o4 Husband and Wife. Widows to "be entitled to dower out of equitable estates. Seisin shall not be necessary to f(ive title to dower. 3^0 dower out of estates disposed of. Priority to partial estates, charges, and specialty debts. Dower may be barred f>y a declaration in a deed: or by a declara- tion in the hus- band's will. Dower shall be subject to restric- tions. August, 1833) considerable alterations have been made in the law of dower. As the act is very short and important it is given (exclusive of formal headings) entire. " The word ' land' extends to manors, advowsons, mes- suages, and all other hereditaments, whether corporeal or incorporeal (except such as are not liable to dower), and to any share thereof ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing" (s. 1). " When a husband shall die beneficially entitled to any land for an interest which shall not entitle his widow to dower out of the same at law, and such interest, whether wholly equitable, or partly legal and partly equitable, shall be an estate of inheritance in possession, or equal to an estate of inhez'itance in possession (other than an estate in jointenancy), then his widow shall be entitled in equity to dower out of the same land" (s. 2). " When a husband shall have been entitled to a right of entry or action in any land, and his widow would be entitled to dower out of the same if he had recovered possession thereof, she shall be entitled to dower out of the same although her husband shall not have recovered possession thereof; provided that such dower be sued for or obtained within the period during which such right of entry or action might be enforced" (s. 3). "No widow shall be entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime or by his will" (s. 4). "All partial estates and interests, and all charges created by any disposition or will of a husband, and all debts, in- cumbrances, contracts, and engagements to which his land shall be subject or liable, shall be valid and effectual as against the right of his widow to dower" (s. 5). "A widow shall not be entitled to dower out of any land of her husband when in the deed by which such land was conveyed to him, or by any deed executed by him, it shall be declared that his widow shall not be entitled to dower out of such land" (s. 6). "A widow shall not be entitled to dower out of any land of which her husband shall die wholly or partially intestate when by the will of her husband, duly executed for the devise of freehold estates, he shall declare his intention that she shall not be entitled to dower out of such land or out of any of his land" (s. 7). " The right of a widow to dower shall be subject to any conditions, restrictions, or directions which shall be declared Dower Act, 84-4 Will. 4, c. lOo. 355 by the will of her husband, duly executed as aforesaid" (s. 8). " Where a husband shall devise any land out of which his Devise of real widow would be entitled to dower if the same were not so ^m„w shaii devised, or any estate or interest therein, to or for the benefit bar her dower. of his widow, such widow shall not be entitled to dower out of or in any land of her said husband, unless a contrary in- -tention shall be declared by his will" (s. 9). " No gift or bequest made by any husband to or for the Bequest of per- benefit of his widow of or out of his personal estate, or of or the www^haii out of any of his land not liable to dower, shall defeat or not bar her prejudice her right to dower, unless a contrary intention '" shall be declared by his will (s. 10). "Nothing in this act contained shall prevent any court of Agreement not equity from enforcing any covenant or agreement entered majaieenforoed. into by or on the part of any husband not to bar the right of his widow to dower out of his lands or any of them" " Nothing in this act contained shall interfere with any Legacies in bar rule of equity, or of any ecclesiastical court, by which lega- entitie"to'pre- cies bequeathed to widows in satisfaction of dower are en- lerence. titled to priority over other legacies" (s. 12). " No widow shall hereafter be entitled to dower ad ostium certain dowers ecclesise, or dower ex assensu patris" (s. 13). abolished. "This act shall not extend to the dower of any widow Act not to take who shall have been or shaU be married on or before the ist'^j'anu'^.'iSi. 1st day of January, 1834, and shall not give to any will, deed, contract, engagement, or charge executed, entered into, or created before the said 1st day of January, 1834, the effect of defeating or prejudicing any right to dower" (s. 14). Operation of Act. '\ The effect of the act in some par- ticulars has already been adverted to. Its operation in some other respects remains to be considered. The old limitations oid limitations to to uses to bar dower, in a conveyance executed before the **' dower. act, will not bar the dower of a wife married since the act, though there is a declaration that she shall not be entitled to dower. Fry v. Noble, 7 D., M. & G-. 687 ; Clarke v. Frank- lin, 4 K. & Jo. 266. It is not necessary that the husband Execution by should execute the deed of conveyance to him in which there ''"''"""'• is a declaration against dower. Fairlcy v. Tuck, 3 Jur., N. S. 1089. The act does not apply to copyholds {Powdrill Does not apply to V. Jones, 2 Sm. & G. 407 ; Smith v. Adams, 5 D., M. & G. ^p^"""^- 712), as in most manors the husband has the power of barring his wife's freebeuch by disposition in his lifetime. 2 Watkins, A a2 356 Husband and Wife. Gavelkind lands. Fee, with ex- ecutory devise over. Debts. Mortgages. Cop. 72. A copyholder must be admitted to entitle his wife to freebench. Smith v. Adams, sup. A surrender by the wife of the vendor to the purchaser will bar her freebench, though the purchaser has not the legal estate at the time of the surrender. Wood v. Lamberth, 1 Phil. 8. The act ex- tends to gavelkind lands. Farley v. Bonham, 2 J. & H. 177. Upon the second section it has been held that where the husband has an equitable estate in fee subject to an executory devise over, in case he dies without having a child living at his decease his widow will be entitled, though on his death the executory devise over takes effect. Smith v. Spencer, 2 Jur., N. S. 778. Upon the 5th section it has been held that though the widow's right to dower is not affected by the mere debts of her deceased husband not charged upon his lands [Spyer v. Hyatt, 20 Bea. 621), yet it is by a mortgage of such lands, and she has no equity as against her husband's heir at law to be indemnified in respect of such mortgage. Jones v. Jones, 4 K. & Jo. 361. See an article 5 Jur., N. S. pt. 2, p. 148, contra. See also 17 & 18 Vict. c. 113. railway com' pariy. By sheriff. Assignment — Payment — Arrears.\ If the widow obtains judgment, the sheriff assigns the dower by metes and bounds. 2 Wms. Saund. 45 a. The value of the land is estimated at the time of the assignment, and not at the time of the husband's death, if it has increased in value since his death. Doe v. Property taken hy Gwinnell, 1 Q. B. 682, 692. Where property is taken by a railway company or other authority similarly authorized, and the purchase-money is paid into court, the widow will be entitled to have the value of her interest paid out to her. HalVs Estate, L. R., 9 Eq. 179. By the 3 & 4 Will. 4, c. 27, s. 41, arrears of dower for more than six years are not re- coverable. By the 23 & 24 Vict. c. 126, s. 26, ordinary writs of summons from the Common Pleas are substituted for writs of right of dower and writs of dower unde nihil habet. But the more usual and convenient remedy for the recovery of dower is in equity. Curtis v. Curtis, 2 B. C. C. 620; Mundy v. Mundy, 2 Ves. jun. 128; see Daniell's Chan. Prac. 4th ed. 1058. Paraphernalia and Personal Estate of Husband. 357 Sec. 2. — Paraphernalia and Personal Estate of Husband. Nature of Interest .. . . 357 In general subject to Hus- band's Debts .. . . 357 Not to Legacies .. .. 357 If applied in payment of his Debts, Wife a Creditor 357 Distinguishable from Pre- sents — Heirlooms . . 357 Might is personal .. .. 358 May be barred — Under the /Statute of Distributions . . 358 Dower or TJiirds . . 858 The wife surviving is entitled to such articles of wearing u-atiu-e of inte- apparel, jewelry, &c. as she was in the habit of using during '^'^'■ the marriage, although while the husband lives they are absolutely in his power. Graham v. Londonderry, 3 Atk. 394. These articles are called her paraphernalia, and were formerly allowed only where the party was noble by birth or marriage. Ly. TyrelVs Case, Fr. Ch. 304. The hus- in general sub- band cannot bequeath them ( Tipping v. Tipping, 1 P. W. '^^^^'' n^suand's 729), but the right of his wife after his death is only a qualified one, being subject to the claims of his creditors. Boynton v. Boynton, 1 Cox, 106. And this is the rule, although the paraphernalia were given to her before mar- riage. Ridout v. Ld. Plymouth, 2 Atk. 104 ; Snelson V. Corbet, 3 Atk. 370. But they are not subject to the claims of legatees, general or specific. Graham, v. Ld. Lon- donderry, ib. 394. If her paraphernalia have been pledged wiere pledged. by her husband in his lifetime, and there are sufficient assets remaining after payment of his debts, she is entitled to have them applied to the redemption of the articles so pledged. Graham v. Londonderry, sup. If it has become necessary AppUcation in to resort to the paraphernalia to pay the husband's debts, aebts™*ife'a'^ the wife will be a creditor for their value against the per- creditor. sonal estate, and the assets will be marshalled {Atdrich v. Cooper, 8 Ves. 397) in her favour against the heir taking by descent {Snelson v. Corbet, 3 Atk. 369), and against devisees of land devised for payment of debts {Boynton v. Boynton, 1 Cox, 106 ; Incledon v. Northcote, 3 Atk. 438), even, it would seem, against devisees of land taking bene- ficially ( Tynt V. Tynt, 2 P. W. 543 ; but Ridout v. Ply- mouth, 2 Atk. 105, and Probert v. Morgan, 1 Amb. 6, are contra) ; at all events since the 3 & 4 Will. 4, c. 104 (J. Williams on Real Assets, 118). The husband's posses- Husband's pos- sion of his wife's paraphernalia at the time of his death ■'^s'""- is immaterial, if the wife was in the habit of wearing them, Northey v. Northey, 2 Atk. 79. The right to paraphernalia Distinguishable is distinguishable from that to presents made to the wife ?r^;^^'"'° during the coverture, for these are gifts to her separate 358 Husband and Wife. band are not. The right is per- Bonal. May be barred. use. Graham v. Londonderry, 3 Atk. 393. But where the husband makes presents to hia wife of ornaments jewelry, and the like, they are to be considered as para' phernalia. S. C. 394 ; Jervoise v. Jervoise, 17 Bea. 566. Heirlooms of hus- Articles of ornament or jewelry, in the nature of heirlooms in her husband's family, are not paraphernalia, though the wife may have been in the habit of wearing them. Calmady Y. Calmady, 11 Vin. Ab. PI. 21; Jervoise v. Jervoise, supra. The right of the wife to her paraphernalia is purely personal ; if she does not make the claim in her life- time, no right will vest in her executor or administrator Clarges v. Dss. Albemarle, 2 Ves. 247); and the right may be barred by a provision before marriage in lieu of it. Bead v. Snell, 2 Atk. 642; Cholmely v. Cholmelv, 2 Ver. 82. ^ As to the wife's interest in her husband's personalty under the Statute of Distributions, see ante, pp. 264, 267. It may be observed that the wife's interest, under the Statute of Distributions, will be barred by a settlement or bequest expressed to be in lieu or bar of it. Thus, a pro- vision by settlement in lieu, bar or satisfaction of dower or " thirds," is a satisfaction of what the widow would be en- titled to under her husband's intestacy, though, by reason of there being no child, this may be one-half. Druee v. Denison, 6 Ves. 385; Colleton v. Garth, 6 Sim. 19; Gurly Y. Gurly, 8 CI. & F. 743; Thompson v. Watts, 8 Jur., N. S. 760. As to pin-money, see tit. " Marriage Settlements." Dower or ttair^. CHAPTER IX. wife's equity to a settlement. Nature of the Equity .. 359 JvHsdiction of Uquity . 359 Husband's Legal Title . 359 Legal Biglit of Assignees 360 Fund not paid to Wife . 360 On n-hat Property it at- taches, amd against whom. 360 Kot Property resting in Husband jure mariti 360 360 361 361 361 Personalty Interests in Land Trust Term of Tcnrs .. Estates Tail— In Fee.. Legacy charged on Land 361 On what Property it at- taches, ^c. — continued. Absolute Interests capa- ble of being assigned Life Interest .. A''ot on, Reversionary In- terests in pure Per- sonalty . . Egu'ity arises on Bill by Ilusband, Assignee or Wife .. ..363 Vliere Equity does notarise 363 ^^'llere Fund subject to Settlement or Cove- nant 863 361 361 363 Nature of the Equity. 359 Where Hqnity does not arise Amo-unt scMZeti— continued. — continued. Considerations now in^ Foreign Lam .. 364 Jiuencing Court 366 Wife having adepiate Conduct of Husband . . 367 Provision 364 Conduct of Wife 367 V/ife provided for 864 Wife's Adultery 367 Wife joining in Hus- H fwlc Fund sometimes band's Assignment . . 364 given . . 367 Wife's Adultery 364 Equity attaches on Living apart . . 365 small Fund .. 368 Wife indebted before What Settlement directed . . 368 Marriage 365 Depends on circum- Waiver and Release of 365 stances of each Case. . 368 Consent to payment to Tlie Children have no Susiand 365 independent Equity . 369 Wife Abroad .. 365 From what time Husband Wife Infant .. 365 and Wife bound by Order Consent revolted 366 for a Settlement . . 369 Fraudulent Settlement . 366 Husband when bound.. 369 Amount must be ascer- Wife when bound 370 tained 366 Waiver by Wife . . 370 No Settlement .. 366 Husband refusing to Release, 20 ,|- 21 Vict. malie Settlement 370 c. 5T 366 Husband's Insanity . . 370 Reversionary Fund . . 366 Orders for Maintenance . . 370 Amount settled 366 Wife deserted . . 370 Fm-merly one half in Refusing to live with general 366 Husband 371 Nature of the Equity.^ At law, as a general rule, the jurisaiclion oi rights of the husband to his wife's chattels real and personal ^i^'J"- during the marriage, alone were recognized prior to the Act of 1870. Equity, however, in those cases where recourse was had to it said, at a very early period interposed, com- pelling the husband, or those claiming under him, to make a settlement of part of the fund on the wife and children, and directing it to be secured until the settlement was made. Milner v. Calmer, 2 P. W. 640; Brown v. Elton, 3 P. W. 202. In Sturgis v. Champneys (5 M. & C. 103), Lord Cottenham observed, that upon a careful examination of the authorities he did not find the time at which the court did not exercise this jurisdiction in favour of the wife. The right to a settlement is an obligation which the court fastens, not upon the property, but the right to receive it. Osborn v. Morgan, 9 Ha. 432 ; Marshall v. Gibbings, 4 Ir. Ch. Rep. 276. Equity, however, did not interfere where Husband's legal the husband had the legal title by which he could obtain ""'=• possession of his wife's personal estate. Jewson v. Moulson, 2 ^tk. 420 ; Att.- Gen. v. Whorwood, 1 Ves. sen. 538. Though if the husband proceeded in the ecclesiastical courts for a legacy, an injunction would have been granted to stay 360 Husband and Wife. the proceedings. Jexcson v. Mouhon, gup.; see Buncombe V. Greenaere, 2 D., F. & J. 509. In Murray v. irf. £■/;. ianA (10 Ve^. 90 J, Lord Eldon observed, that the husband, where he can, v-. entitled to lay hold of his wife s property, and the court will net interfere. Previonslv to a bill a tmstee who ha^ the wife'; propertr, real or personal, may pay the rents and profits, and may hand over the personal e-tate to the bn-^ljand ; but he cannot do so after a bill is fileL MacauUuf t. Phillip?. 4 Ve?. 18; De la Garde v. Lempriere, 6 Bea. .344, .347; see Allday v. Fletcher, 1 1). & .J. '^2. And where no bill is filed it is still a matter of •i-^^cretioo, and rhere may be Qi..-':-. jnstifving the trustees in payini' the fund into court under the Trnstee Eehef Act. Re .Su-an, 2 H. & M. .34: see ^e Bendyshe, 3 Jur., X. S. 727. Xeither will equity interfere with the legal right of assig- cees. In Burdon t. Bean '2 Yes. jnn. 607), it was safd tiiat there was no objection to what the assignees could get at law; but if they came into the Court of Chancery, the conrt woidd not extend its arm to give them any other part of the wife's property without a consideration for it. See Ostrell V. Probert, ib. 6 SO; Brown v. Clarke, 3 Yes. 166. And there is no equity against an assignee for value from the husband where such assignee has the legal estate, though he may be compelled to come into equity for some matter collateral to, but arising out of, the assignment to himself. As where the husband possessed of leaseholds in right of his wife, assigned, with her, the premises and legal estate in them by way of mortgage, she was held not to be entitled to a settlement on a biU of foreclosure being filed by Fund not paid to the mortgagee. Bill y. Edmonds, 51)., G. & S.603. The *i*^ wife, however, has an equity for a settlement only, and the court will not, as against the husband or his assignee, order the fund to be paid to the wife on her separate receipt, but will direct a settlement. Be Grant, 14 W. E. 191. >-o: propertr On what Property it attaches.] The wife has no equity T^'^^'^''™* where the husband only exercises his legal right of dispo- sition over the wife's personal estate which vests in him by the marriage ( TVarden v. Jones, 2 D. & J. 76, 87 ; see the 33 & 34 Vict. c. 93, ante, p. 339), or over his own in- terest during their joint lives in her real estate. Burham v. Pawnaii}-. Crackles, 32 L. J., Ch. 1 1 1 . It had long been held, that the equity attached to every species of personal property out of which, from the nature of it, a settlement coulJ be made, and to property to which the wife became entitled before ^s well as during the marriage. Barrow v. Barrow, 5 D., M. & G. 782. But, until the case of Sturgis v. Champneys On what Property it attaches. 361 ("5 M. & Cr. 97), it was considered that the doctrine was con- fined to chattels personal. Hanson v. Keating, 4 Ha. 1, 8. In Sturgis v. Champneys, however, it was decided, that es- interests in land, tates in land are subject to the wife's equity to a settlement; and the doctrine there laid down has been acted upon in several subsequent cases, and is now well settled. In Han- son V. Keating (4 Ha. 1), the wife was entitled to part of a trust term of years, V.-C. Wigram considered himself to Trust term ot be bound by Sturgis v. Champneys, and decreed in favour y"™- of the wife's equity. See Clark v. Cook, 3 De G. & Sm. 333. It was afterwards held, that the equity attached to Estates taU; an estate tail, which was subject to a jointure term, such an estate being equitable during the continuance of the term. Worlham v. Pemberton, 1 De G. & Sm. 644 ; comp. Re Cumming, 2 D., F. & J. 376 ; Life Ass. of Scotland v. Siddal, 3 D., F. & J. 271. So to an equitable estate in fee, —in fee. but so as not to affect the possible estate by the curtesy of the husband. Smith v. Matthews, 3 D., F. & J. 139. The wife will also be entitled to a settlement out of a legacy Legacy charged charged on land, though there may be a right of entry with "^ '^*' power to raise it by demise, sale or mortgage. Duncombe v. Greenacre, 2 D., F. & J. 509. With respect to the nature Absolute interrats of the interest in the property in fund, which the wife must ^^^°' '"^'"^ possess to entitle her to a settlement, the cases already re- ferred to show that her equity is clear where she has the entire interest in possession capable of being immediately transferred to the husband or his assigns. As regards the wife's equity out of an estate or interest luc interest. for life, there was formerly some difficulty as to what the doctrine of the court was. It may now, however, perhaps, be considered as settled. The question may arise between the wife and the husband's general or particular assignees or creditors, or between the husband and wife. In Pry or v. Hill (4 B. C. C. 139), the husband assigned Between as- the wife's life interest for the benefit of his creditors gene- ''^^^ '?■ '^^' rally, and the wife was held entitled to a settlement. The same equity was enforced against the assignees of the hus- band who had become bankrupt or insolvent in Ex parte Coysegame, 1 Atk. 192; Jacobs v. Amyatt, 1 Madd. 376 n.; Sturgis v. Champneys, 5 M. & C. 97; Koeber v. Sturgis, 22 Bea. 588 ; Squires v. Ashford, 23 Bea. 132; Barnes v. Robinson, 9 Jur., N. S. 246. In Vaughan v. Buck (13 Sim. 404), the question was Between husband between the husband and wife at a time when he was main- ™dwiie. taining her, though he was in embarrassed circumstances, and the court refused to allow her a settlement out of the fund. In Wilkinson v. Charlesworth (10 Bea. 324), the value. 362 Husband and Wife. question arose between an assignee of the husband claiming the interest accrued in the husband! s lifetime and the wife surviving, and the actual decision merely was that this interest was a,.chose in action which had not been reduced into possession in the lifetime of the husband, and therefore survived to the wife. Lord Langdale expressed, however, an opinion generally, that the wife was entitled to a settle- ment out of a life interest which the husband took in her right. But see as to this opinion the observations in Tidd V. Lister, 10 Ha. p. 154. In Re Ford (32 Bea. 621), the husband had deserted his wife, and she had obtained a de- cree for judicial separation. The court excluded the hus- band entirely from any share in an annuity which had been given to her. Assignee for In the following cases the question arose between the wife and the husband's assignee for value. In Wright v. Morley (11 Ves. 12), the husband assigned part of his wife's life interest in the funds, and ceased to maintain her. The court adopted a sort of medium course, and held the assignment I operative to the extent of the fund assigned, giving the wife, the residue, which had -not been assigned, and avoided de- ciding the general question of the effect of a charge of the whole fund. lb. p. 22. But in Elliott v. Cordell (5 Madd. 149 ; 1 Euss. 71 n.) and Stanton v. Hall (2 R. & My. 175; see Aguilar v. Aguilar, 5 Madd. 414), it was expressly held that where the wife's interest for her own or her husband's life was assigned to a purchaser for value, the wife was not entitled to a settlement, though in these cases the husband had afterwards become bankrupt or insolvent, and was un- able or less able in consequence to maintain his wife. But in these cases it will be obsei'ved that the assignment was at a time when the husband was maintaining his wife and had not become bankrupt or insolvent. These cases were fol- lowed in Tidd v. Lister (10 Ha. 140; aff. 3 D., M. & G. 857); and.BeZ>M^2'(28Bea.386); both the V.-C. and Lord Cranworth, C, seeming however to admit, on the authority of Stiffe V. Everitt (1 M. & Cr. 37), this qualification, that the assignment would only operate on the interest during the coverture, and that any interest accruing after (which could not happen, of course, in such a case as Stanton v. Hall, sup., if the husband predeceased his wife), was rever- sionary, and unaffected by the assignment as against the wifq surviving. It seems, therefore, as the result of the cases upon the subject, that the wife has an equity where the interest be- comes vested in the husband's general assignees or a trustee in bankruptcy, but not where it is vested in a particular Where Equity does not arise. 363 assignee for value, though the assignment will, in the latter case, only operate during the coverture, the wife also will not be entitled where there is no assignment and her hus- band is maintaining her. When the interest is in pure personal estate and rever- Reversionary sionary, the court cannot direct a settlement to be made. Oshorn v. Morgan, 9 Ha. 432; see Taylor v. Austen, 1 Drew. 459. It was formerly thought necessary, in order to entitle the Equity arises on wife to her equity, that the court should be put in motion ™ignee orwUe. by the husband or his assignee, and that then equity would not assist unless provision were made for the wife out of her property. See per Mr. (Sir Samuel) Romilly, arg. Carr v. Taylor, 10 Ves. 574, 577. The rule, however, is now clearly established, that the wife herself may originate tha suit {Ex parte Coysegame, 1 Atk. 192; Elibank v. Monto- lieu, 5 Ves. 737; Sturgis v. Champneys, 5 M. & Cr. 97), and the court will decree a settlement, although a settlement may not be expressly prayed by the bill. Wortham v. Pemherton, 1 De G. & Sm. 644. If a legacy be given to the wife, out of which she is en- No sct-ofl be- titled to a settlement, her equity will not be prejudiced or ^^^^a^us- affected by reason of her husband being indebted to the band's debt, testator's estate {Carr v. Taylor, 10 Ves. 574), except that in such a case if the husband is a bankrupt, the executors will be allowed, after making a suitable provision for the wife, to set off the remainder of the legacy against the debt due to their testator, so that she will not be entitled to a. settlement of the entire fund. Ex parte O'Ferrall, 1 Gl. & Ja. 347. Where the Equity does not arise. J The wife has no equity where ftma snb- where the fund has been made the subject of a settlement, ieo'"' settlement 1 ., • rv* , 1 1 ... , rrt, .rt or covenant. or where it is afiected by some provision in it. Thus, if there is a covenant to settle the wife's after-acquired pro- perty, this covenant is paramount to the wife's equity, and the fund must be settled accordingly. See Brett v. Forcer, 3 Atk. 405. The wife has no equity to a settlement out of money cove- nanted to be paid by her father to her husband as part of her portion ; and it makes no difference in such a case that tha husband has covenanted for payment of a sum to her if she should survive. This gives her no equity to have the sum payable to him held as security for the sum payable by him. Brett V. Forcer, 3 Atk. 403. Where it was agreed that the husband should receive whatever the wife might be entitled to during the marriage, his executors repaying the same 364 Husband and Wife. Foreign law. Wife provided for. Wife joining in husband's assign- ment. Wife's adultery. after his death with interest, the wife was held to have no equity against her husband's assignees, or those clauning under them, in respect of money received in her right. Basevi v. Serra, 14 Ves. 313; 3 Mer. 674. This form of settlement is, or was, usual amongst persons of the Jewish persuasion. 14 Ves. 316. The equity will not arise if the disposal of the fund is governed by the law of a foreign country in which this equity is not recognized. Thus where the husband and wife were domiciled in Prussia, she was held not entitled to a settlement out of a fund in the Court of Chancery here; but it was ordered to be paid to the husband. Campbell v. French, 3 Ves. 323. So where the parties were domiciled in Scotland, and there was a contract or settlement according to Scotch law. Anstruther v. Adair, 2 M. & K. 513; Hitchcock V. Clendinen, 12 Bea. 534; M'Cormick v. Gar- nett, 5 D., M. & G. 278; Be Todd, 19 Bea. 582. But, although a wife may have no equity to a settlement by the law of Scotland, a Scotch lady who is a ward of the English Court of Chancery is entitled to have a settlement made upon her. In re Tweedale, Johns. 109. As a general rule, if the wife be already weU provided for, the court will not, without special grounds, order a further provision. Spicer v. Spicer, 24 Bea. 365; see Green Y.Otte, 1 S. & S. 250. But in previous cases it had been held that the fact that there was another provision for the wife's separate use was no bar to her claim to a settlement out of a further and large accession of property to the husband in right of his wife. Tomkyns v. Ladbroke, 2 Ves. sen. 595; Burdon v. Dean, 2 Ves. jun. 607. And if the wife has herself been a party to the husband's assignment or disposition of the property, so as legally to bind herself, for Instance, by an acknowledged deed conveying an interest . in real estate, she cannot be allowed to defeat her own act by claiming a settlement out of the property to the prejudice of the assignee or mortgagee. Cooke V. fVilliams, 9 Jur., N. S. 658; comp. Be Insole, L. E., 1 Eq. 470; mikinson v. (Gibson, L. K., 4 Eq. 162. What a Bar °™'">'s sole means of support, and the whole fund was given to her. So in Dunkley v. Dunkley (2 D., M. & G. 390), the hus- band had also abandoned his wife and two children, and the fund formed a material source of their income. In Scott v. Spashett (3 M. & G. 509), the whole fund was given. This was a strong case, inasmuch as the husband and wife were living together, and the assignee, a purchaser, had given something, though not an equivalent, for the fund. In Barrow v. Barrow (5 D., M. & G. 794), the husband had Husband gunty committed adulteiy, and there were also other vei-y strong °' '^'^^^'^y- circumstances in the case, which, in the opinion of the court, weighed considerably against him, and the entire income was given to her. In Gent v. Harris (10 Ha. 383), the wife was an infant at the time of the marriage, and was afterwards abandoned by her husband, and the court allowed the whole fund to be settled upon her. And in many other cases the Husband unable -whole fund has been settled on the wife where the husband *" maiutain. is unabte to maintain her or has deserted her. lie Cutler, 14Bea. 220 ; Marshall v. Fowler, 16 Bea. 249; Watson v. Marshall, 17 Bea. 363; Layton v. Layton, 1 Sm. & G. 179; Re Kincaid!s Trusts, 1 Drew. 326; Francis v. Brooking, 19 Bea. 347; Smith v. Smith, 3 Giff. 121; Dunnombe v. Green- acre, 29 'Ree.. 519; Re Ford, S2 Ben. 621. In one case even, wife's adultery, where the circumstances were very special, the court allowed the whole fund to be settled on the wife though she had committed adulterv. Re Lcwin's Trusts, 20 Bea. 378. 368 Husband and Wife. Equity attaches on small fund. An income payable to the wife /or life has also been directed to be paid to her where her husband has become bankrupt or (formerly) insolvent ; in cases where, though the husband and wife were living together, the fund was small, and the wife and children wholly dependent upon it as a permanent source of support. Gardner v. Marshall, 14 Sim. 575; Koeber v. Sturgis, 22 Bea. 588; Squires v. Ashford, 23 Bea. 132. As a general rule, however, the whole fund will not be settled, unless the husband is in insolvent circum- stances, or has been guilty of gross misconduct, such as adultery, cruelty or desertion. Re Suggitt, L. R., 3 Ch. 215. The court formerly dispensed with the consent of the wife, and ordered the fund to be paid to the husband where it was less than 200Z., not recognizing the wife's equity in respect of such a fund. Ellworthy v. Wickstead, 1 Jac. & W. 69; Foden v. Finney, 4 Russ. 428. The rule, how- ever, now is, that a married woman has an equity to a settle- ment, however small the fund may be {Re Cutler, 14 Bea. 220; Re Kincaid, 1 Drew. 326), and in such cases the court will insert the trusts in the order. Chamberlain v. Cham- berlain, 1 Sm. & G-iff., App. 28; Watson v. Marshall, 17 Bea. 363. Depends on cir- cumstances of each case. What Settlement directed.'] There is no general rule as to the provisions which the court wiU direct to be inserted in the settlement. lu one case {Carter v. Taggart, 1 D., M. & G. 286), Ld. Cranworth, L. J., observed, that the court must make such a settlement as it thought just and reason- able under the circumstances of each particular case. If there were no special circumstances in the case, the court provided for the wife for life out of the fund, and afterwards gave it to the issue if any ; if none, and the wife survived, to her absolutely. If there were no issue, and the husband survived the wife, then in the absence of special circumstances there arose the application of the general rule resulting from the legal right of the husband. See, however, as to this case the observations of James, V.-C, in Croxton v. May, L. R., 9 Eq. 404, and cons. Spirett v. Willows and Re Suggitfs Trusts, post. In Harpur v. Ball (2 Jo. & Lat. 599), the husband and wife agreed to a reference to the Master to approve of a settlement. The husband was sup- porting his wife. The court ordered the fund to be settled on the husband for life, remainder to the wife for life, remain- der to the issue of the marriage, subject to the usual power of appointment ; in default of issue one moiety of the fund to go to the husband the other to the wife absolutely. But in recent cases {Spirett v. Willows, L. R., 1 Ch. 520, and 4 What Settlement directed. 369 Ch. 407; and Re Suggitt's Trusts, L. E., 3 Ch. 215), the principle was laid down that the husband's marital rights should not be interfered with. further than was necessary to give effect to the wife's equity for the benefit of herself and children, and in the latter case it was held, that in the absence of special circumstances, the ultimate limitation in default of children should be to the husband or wife, which- ever should be the survivor. See the settlement in Spirett V. Willows, as finally approved of by the court, the husband having become bankrupt, L. R., 4 Ch. 407. This rule ap- plies to the wife's children by any marriage. Croxton v. May, L. K., 9 Eq. 404. The trust for the issue will in general be for sons at twenty-one, daughters at that age or marriage. Gent V. Harris, 10 Ha. 383; see L. R., 4 Ch. 410. It was formerly considered doubtful whether children had The chuaren have any substantive and independent right to claim a settlement "°Ji°y°''™''™' after the death of their mother where it had not been directed during her life. See Murray v. Ld. Elibank, 13 Ves. 7. It is now, however, settled that they have not. Lloyd v. Williams, 1 Madd. 450 ; De la Garde v. Lempriere, 6 Bea. 344 ; Hodgens v. Hodgens, 4 CI. & Fin. 372. But when once a settlement of the wife's property is directed by the court, provision will be made for the children of the marriage. Murray v. Elibank, 13 Ves. 1 ; S. C, 14 Ves. 496 ; Johnson v. Johnson, 1 Jac. & W. 475 ; Groves v. Clark, 1 Kee. 132. From what time Husband or Wife bound by Order for Husband when a Settlement.'] The husband may be bound by contracts, '""""'• orders for a settlement, and other proceedings by which the wife will not. It is important to consider, therefore, from what time the husband and wife will be respectively bound, as upon this the rights of their children wiU. in many cases depend. Thus, when the father is bound by an order, or other matter, but the mother is not, the death of the latter will be immaterial so far as the rights of the children are concerned, and their equity against their father will be com- plete ; but in such case if the father were to die, the children would have no equity against their mother. Where the husband sues for the wife's property, and is ordered to make a proposal for a settlement, he is bound from that time, and, notwithstanding his wife's death, must prosecute the order, which will enure for the benefit of the children. Murray v. Ld. Elibank, 10 Ves. 84, 91. If there are no children, notwithstanding an order for a proposal for a settlement, if either husband or wife die while it rests in mere proposal, the right by survivorship as between them W. B B 370 Husband and Wife. Contract or de- cree necessary to bind husband. "Wife when bound. Waiver by wife. Husband refusing to malce settle- ment. Husband's insanity. will not be affected. Macaulay v. Phillips, 4 Ves. 15. This case decided that the wife was not bound by an agree- ment with her husband subsequent to an order for proposals to be made ; and the observations of Lord Alvanley in it, that if the wife had died, notwithstanding his proposal, he would have been entitled, must, it is considered, be under- stood to apply only where there are no children. 4 Ves. 19; see Murray v. Ld. Elibank, sup. ; Lloyd v. Williams, 1 Mad. 450. It was at one time considered that the equity of the children attached on the filing of the bill by the father. Steinmetz v. Halthin, 1 Gl. & J. 64. But this case was overruled in De la Garde v. Lempriere (6 Bea. 344), and it is now settled that for their equity to arise as against the father there must be a decree, or contract of the parties, which may stand in the place of a decree. Wallace v. Auldjo, 1 D., J. & S. 643; see Lloyd v. Mason, 5 Ha. 149. But as regards the wife, while the matter is still before the court, she may retire at any time, and thus defeat the inchoate equity of the children, even after a reference for a settlement and after a settlement, so approved, has been approved of by the master, but not after a settlement has been finally ordered. Barrow v. Barrow, 4 K. & Jo. 409, 424; see Whitfem v. Sawyer, 1 Bea. 593; Baldwins. Bald- win, 5 De G. & Sm. 319. The interests of the children will also be defeated by the wife waiving an agreement, on the part of her husband, to make a settlement, and consenting to the payment of the fund to him. Fenner v. Taylor, 2 R. & M. 190. In the event of the refusal of the husband to make a settlement, the court will only direct a suspension of the payment of the principal to him, but giving the interest either to him, if he is maintaining his wife, or to her if he is not, and she is unprovided for. Sleech v. Thorington, 2 Ves. sen. 562; Rishton v. Cobb, 9 Sim. 615, 620; see Atche- son V. Atcheson, 11 Bea. 485. In Bond v. Simmons (3 Atk. 20), the husband refusing to make a settlement, the pvincipal was invested subject to the direction of the court, and the dividends were allowed to accumulate. After the husband's death the wife was held entitled to the principal and accumulated interest. In this case it did not appear that the wife was not maintained by her husband. In a case in which the husband was of unsound mind the court ordered a fund bequeathed to the wife to be brought into court and invested, and the annual produce of it to be paid to her. Steed V. Galley, 2 M. & K. 52 ; see Bishop of Exeter v. Ld. and Ly. Ward, ib. 54. Wife deserted and Orders for Maintenance.] Upon a principle analogous unprovided for. ^^ ^^^^ ^^ which the court acts in decreeing a settlement for Orders for Maintenance. 371 the wife out of property coining to the husband, or those claiming under him, in her right, it will order her mainte- nance out of her fortune when under its control, though neither settled, nor agreed to be settled, if her husband has deserted her leaving her unprovided for. Watkyns v. Wat- kyns, 2 Atk. 98 ; see Guy v. Pearkes, 18 Ves. 196 ; Coster V. Coster, 1 Kee. 199. Orders of this description are fre- quently made by the court. If the husband has deserted his wife, or by his cruelty compelled her to leave him, the court will order maintenance out of the interest of her fortune, which, by the marriage articles, was payable to him for life. Oxenden v. Oxenden, 2 Ver. 493 ; Williams v. Callow, ib. 752 ; Eedes v. Eedes, 1 1 Sim. 569 ; but see 1 Rop. Hus. and Wife, 279, note by Jacob. As to those cases in which the wife sues in the Divorce Court, see post, Ch. XII. But where a wife refuses to live with her husband, wue refusing to who is from necessity resident abroad with his regiment, and husband, who is willing to receive her, she is not entitled to mainte- nance {Bullock Y. Menzies, 4 Ves. 798), neither is she if she elopes from him. Watkyns v. Watkyns, 2 Atk. 97. In one case where the wife was deranged, and had been de- serted by her husband, the court allowed part of the capital to be applied for her maintenance. Peters v. Grole, 7 Sim. 238. It may be observed, that the Act of 1870 does not in any Actoti870. way affect the doctrine of the court with reference to the wife's equity to .a settlement out of such property as the husband will still take in her right. CHAPTER X. SEPARATE USE AND RESTRAINT ON ANTICIPATION. Generally 372 Wife' s disahility at Lam 372 A Feme Sole in Equity as to separate Pro- perty •• . . . . 372 Trust usually created by means of Trustee . . 372 Where none, Husband a Trustee .. . . 372 Husband bound by Trust 373 Meputed Ownership) of Husband .. ..373 Sec. 1. — Separate Use. Generally — continued. Parol ante - nuptial Agreement . . . . 378 Operates on all Cover- tv/resunless destroyed. 373 Future Coverture .. 373 Where separate Use created 373 No particular Words necessary ., . . 373 Particular Fxpressions creating .. ,. 373 Clear intention to ex- elude Husband . , 371 B B 2 372 Husband and Wife. Where separate Use created — continued. Where Gift of Income, Gift of Corpus . . 374 Agreement to live se- parate .. . . 374 JRenunciation of Mari- tal right ., .. 374 Purchase ly Wife . , 374 Where separate Use not created .. . . . . 375 Particular Expressions 375 Words " Sole use" . . 375 G^fts — Loans— Savings .. 376 Gifts hy Hus'band .. 376 £y third Persons . . 376 Savings .. .. . . 376 Undisposed of at her Death .. ..376 Receipt iy Susland . . 377 Wife Income Creditor for One Tear only . . 377 Capital .. . . . . 377 Where follomed . , 377 Hxpendedfor Family . . 377 Fv/iid secured on Bus- hand's Mstate . . 377 Wife's Adultery .. ..378 Provisions of 20 ^21 Vict. 0. 85, s. 21 . . 378 What Property subject to— Power of Disposition by Wife 378 in general .. . , 378 Meal Estate — Chattels Seal 378 Chases in Action ,. 378 Specific Chattels . . 378 Disposition by unac- knomledged Deed or Will 378 Determination of Trust 379 Devolution of sepa/rate Mstate ., ..379 Wife's Contracts and Zia- lilities 379 Contracts when binding Express— Implied .. 379 Mere verbal engage- ments . . . . . . 379 Wrongful Acts.. .. 380 Breach of Trust .. 380 Acquiescence in breach of Trust .. ..380 Wife joining in Hus- band's Security . . 380 Acting for Husband .. 380 Equitable Memedy . . 381 Statute of Limitations . 381 AotoflilQ .. ..381 Wife's dlsalJility at law. A ferae sole in equity as to pro- perty settled to ber separate use. TJsnally created by means of trustee. Husband a trustee. Generally.^ As a necessary consequence of the rights acquired by the husband in his wife's property by the com- mon law, her interest in it, where she retained any, and power over it, was very much restricted. At law what was hers before the marriage became wholly, or to some extent, his, and that property in which she retained an interest could not be disposed of without his concurrence. But in equity this rigid rule was relaxed at an early period. By the intro- duction of the doctrine of separate use the wife was enabled to hold and deal with property so settled as freely as if she had been a. feme sole. This rule of equity was originally established for her benefit; but it was not until the intro- duction of the clause restraining any anticipation of the pro- perty so settled that her protection was rendered complete. The gift, or settlement to the separate use, is usually eifected by means of a trustee; but this is not necessary. If there be none, the husband himself will be considered a trustee for his wife. Parker v. Brooke, 9 Ves. 583; see Neiolands v. Paynter, 4 M. & C. 408; Gardners. Gardner, Where separate Use created. 373 1 Giff. 126. Where there are tnistees, their consent to any dealing with the separate property is not necessary unless made so by the author of the trust. Essex v. Atkins, 14 Ves. 547. The husband will be bound if the property has Husband bound been settled to the wife's separate use before the marriage ''^ "■"^*' {Tullett Y. Armstrong, 4 M. & C. 377; Re Gaffee, 1 Mac. 8s G. 541), unless prior to the marriage a settlement be executed by which the gift to the separate use is destroyed. Ih. The court will grant an injunction restraining any interference with the wife's separate property. Green v. Green, 5 Ha. 400, n.; see Newlands v. Paynter, 4 M. & 0. 408. Such property did not, under the bankruptcy acts Reputed owner- prior to the last, pass to the husband's assignees on his s^p of husband. bankruptcy, as being in his order and disposition as reputed owner. Simmons v. Edwards, 16 M. & W. 838; Ex parte Killick, 3 M., D. & D. 480; Ex parte Massey, 2 Mont. & A. 173. And the words as to reputed ownership in the 32 & 33 Vict. c. 71 (Bankruptcy Act, 1869, s. 15 (5)) are similar to those in the previous acts, and would have the same effect as under them. A parol ante-nuptial agreement that the wife's chattels Parol ante- shaU be held for her separate use is not binding (see Warden men™ '^'^^' V. Jones, 2 D. & J. 84) ; but if the agreement is acted upon and the chattels are held by trustees upon trust for the wife's separate use, the agreement may be made effectual. Sim- mons V. Simmons, 6 Ha. 352. The trust for the separate Operates on au use of the wife, like the provision in restraint of anticipation, a^troycd!' ""' ^* will operate upon all the covertures of a woman unless de- stroyed while she is discovert. Tullett v. Armstrong, Scar- borough V. Borman, 4 M. & C. 292; Re Gaffee, 1 Mac. & G. 547; see Anderson v. Anderson, cited 2 M. & K. 427. This case was decided as early as 1821. A gift to the separate use of a married woman, free from the control of any future husband, is a gift to her separate use during the then existing coverture. Steedman v. Poole, 6 Ha. 193. Where separate Use created.'] The trust must be clearly No particular expressed, but no particular form of words is necessary, -words necessary. Darby Y. Darby, 3 Atk. 399; Stanton v. Hall, 2 K. & My. 175, 180. In the following cases the words used were held sufficient where trust for to create the gift to the wife's separate use: for her own use crratoj.*''"^^ independent of her husband ( Wagstaffe v. Smith, 9 Ves. particular ex- 520) ; the husband to have no control {Edwards v. Jones, p^essions. 14 W. R. 815) ; for her own use and benefit independent of any other person (Margetts v. Barringer, 7 Sim. 482 ; see 374 Husband and Wife. Clear intention to exclude hus- band. Where gift of in- come gift of corpus. Agreement to live separate. Renunciation of marital right. Purchase by wife. Glover V. Hall, 16 Sim. 568); for her own use and at her own disposal {Priohard v. Ames, T. & R. 222 ; Inglefield V. Coghlan, 2 CoU. 247); for her own sole use, benefit and disposition (Ex parte Ray, 1 Madd. 199; Lindrell v. Thacker, 12 Sim. 178 ; Hobson v. Ferraby, 2 Coll. 412) ; her receipt to be a sufficient discharge to the executors (Lee V. Prieaux, 3 B. C. C. 381'; Cooper v. Wells,- 11 Jur., N. S. 923); to enjoy the profits {Tyrrell v. Hope, 2 Atk. 561); to be at her disposal, to do therewith as she should think fit {Kirk v. Paulin, 7 Vin. Ab. 95, pi. 43); according to her appointment, whether covert or sole {Lamb v. Milnes, 5 Ves. 517); solely and entirely for her own use and benefit during her life {Inglefield v. Coghlan, 2 Coll. 247; consider now Massey v. Bowen, L. R., 4 H. L. C. 288, post, p. 375); to be delivered to her when she should demand it {Dixon v. Olmius, 2 Cox, 414); to her absolutely, if living apart from her husband. Shewell v. Dwarris, 1 Johns. 172; see Brooke V. Brooke, 25 Bea. 342. As to the effect to be given to the word sole, see post, p. 375. And if the inten- tion of a testator be clearly expressed, that the husband shall take no interest in a legacy bequeathed to the wife, effect will be given to the intention by directing it to be held for her separate use (see Dawson v. Bourne, 16 Bea. 29), with restraint on anticipation where requisite. Goulder v. Camm, 1 D., F. & J. 146. A bequest of the interest or income of property, without limit, to the separate use of a woman, there being no gift over of the corpus, is a gift of the corpus to her separate use. Humphrey v. Humphrey, 1 Sim., N. S. 536 ; see Gurney v. Goggs, 25 Bea. 334. But under a gift of an estate in fee and personal estate to a female absolutely, fol- lowed by a direction to pay the principal monies, dividends and rents into her own hands for her separate use, the corpus of the real estate is not given to her separate use. Trout- beck V. Boughey, L. R., 2 Eq. 534. After an agreement for separation between husband and wife, neither to interfere with the property of the other, the after-acquired property of the wife will be separate estate. Haddon v. Fladgate, 1 S. & T. 48. An agreement by the husband to renounce his marital right over a fund during the coverture, and that it shall be settled on the wife, gives by implication an estate to the wife to her separate use {Byam v. Byam, 19 Bea. 68 ; see Mews v. Mews, 15 Bea. 529); and if the husband disclaims any interest in a fund, and it is dealt with by his wife as her separate property, it will be so treated {Ry croft v. Christy, 3 Bea. 238); and the wife may purchase from her husband property for her sepa- Where sejparate Use not created. 375 rate use. Arundell v. Phipps, 10 Ves. 139. A settlement of personalty for the sole and separate use of, and to be at the sole and absolute disposal of, a person, and her receipt or that of the person to whom she should direct the property to be delivered to be a good discharge, enables her to dispose of it by mere delivery without writing. Farington v. Parker, L. R., 4 Eq. 116. Where separate Use not created.'] In the following Particular expres- cases the words were held insufficient to create the trust for °'°'^" the wife's separate use : into her own hands to and for her, or for her own, or her own proper use and benefit ( Tyler v. Lake, 2 R. & M. 183; Wills v. Sayers, 4 Madd. 409; Blacklow V. Laws, 2 Ha. 49 ; Kensington v. Dollond, 2 M. & K. 184); to her and her assigns {Dakins v. Beris- ford, 1 Ch. Ca. 194) ; to pay the interest to her for life {Lumb V. Milnes, 5 Ves. 517) ; to her for life to be applied for the benefit of herself and children ( Wardle y. Claxton, 9 Sim. 524); only for her (Spirett v. Willows, 11 Jur., N. S. 70) ; to be under her sole control {Massey v. Parker, 2 M. & K. 674, which is not overruled on this point, but on another; Tullett y. Armstrong, 4 M. & C. 377); for her sole use and benefit. Gilbert v. L.ewis, 1 D., J. & S. 38 ; see Chipchase v. Simpson, 16 Sim. 485. As to the words " absolute " or " absolute use," see Ex parte Abbott, 1 Deac. 338 ; and comp. Shewell v. Dwarris, Johns. 172. The words sole use, however, have given rise to great sole use. differences of opinion. In several cases it was held or laid down, partly upon the context and partly upon the ground that the word " sole " had a technical meaning equivalent to separate, that gifts or limitations to or for the sole use of a female created the separate estate. Adamson v. Armitage, 19 Ves. 416 ; Ex parte Ray, 1 Madd. 199 ; Ex parte Kil- lick, 3 M., D. & D. 480. But in Gilbert v. Lewis (1 D., J. & S. 38), these words in the gift of a legacy to a widow without the intervention of trustees, were held not to have that efiect. But in the later cases of Green v. Britten (I D., J. & S. 649), the words "sole benefit," and Re Tarsey's Trusts (L. R., 1 Eq. 561), the words "for her own sole use and benefit absolutely," were held sufiScient, and it was con- sidered that the word sole was an operative word, in general meaning separate; while in Lewis v. Matthews (L. R., 2 Eq. 177), the words " sole and absolute use and benefit," were held not to create the separate estate. The point as to the precise technical meaning or force of the word "sole," has now been finally reviewed by the House of Lords in Massey v. Bowen (L. R., 4 II. L. 288), 376 Husband and Wife. In whicli (approving of Gilbert v. Lewis, sup.) it was held that this word, per se, has no fixed technical meaning like the word separate, though from the context it may be so construed. It would seem, however, from the language of the Lord Chancellor (p. 297), that in marriage settlements it would be held to mean separate, or at all events would in such instruments more readily be construed to have that meaning than in wills. In settlements, however, the word sole will seldom, if ever, be found used in this sense, with- out the word separate. Gilts by hnoband. Gifts — Loans — Savings.] The wife may give her sepa- rate property to her husband for his own use, or the family expenditure ( Gardner v. Gardner, 1 Griff. 126), or lend it tQi^im, and in such case may, if he become bankrupt, prove as a creditor against his estate {Woodward v. Woodward, 9 Jur., N. S. 882) ; and if he has obtained money belonging to her separate estate, and employed it in the purchase of property, she will have a lien upon the property for what is due to her. Scales v. Baker, 28 Bea. 91. The husband also may give property to trustees for the separate use of his wife, or declare himself a trustee for her (Mews v. Mews, 15 Bea. >529) ; but the declaration must be unequivocal and irrevocable {Grant v. Grant, 34 Bea. 623), and the evi- dence of it very clear {M'Lean v. Longlands, 5 Ves. 71 ; Bich V. Cockell, 9 Ves. 369 ; Hoyes v. Kindersley, 2 Sm. & Griff. 197) ; and of course such gifts would be liable to be impeached if made with intent to delay or defraud creditors, under the 13 Eliz. c. 5. Ante, p. 269. Gifts by a third person of personal ornaments, jewels and the like to the wife during the marriage, are construed by the court to be gifts to her separate use. Graham v. Lon- donderry, 3 Atk. 393. Money saved by a married woman out of the income of her separate estate, and invested, belongs to her separate estate. Humphery v. Bichards, 2 Jur., N. S. 432; Barrack V. M'Cullock, 3 K. & Jo. 110; see Muggeridge v. Stanton, 1 D. & J. 107. So money saved out of her separate allow- ance. Gage v. Lister, 2 B. P. C. 4. So also savings accu- mulated out of money allowed by her husband for her main- tenance while living apart from him. Brooke v. Brooke, 25 Bea. 342. Land purchased with the wife's savings or profits arising out of separate estate will devolve as real, not as personal estate. Steward v. Blakeway, L. R., 4 Ch. 603. The wife's separate estate at her death consisting of arrears of income, money in the funds, bonds or other choses in action, if undisposed of by her will, belong to her husband Gifts by third Savings. Land purchased with. Undisposed of at her death. Receipt by Husband. 377 as administrator of her estate. Proudley v. Fielder, 2 M. where husband & K. 57; %eQ Johnstone v. Lumb, 15 Sim. 308. But the ^IVTw right, or proceeds of the wife's separate estate actually received by as administrator. her and in her possession at her death {Molony v. Kennedy, 10 Sim. 254), or even lent by her, belong to the husband in his marital right. Bird v. Peagrum, 13 C. B. 639; 17 Jur. 577; Tugman v. Hopkins, 4 M. & Gr. 389; see Messenger V. Clark, 5 Ex. 388, and consider Barrack v. M'Cullock, 3 K. & J. 110. Having regard to the authorities, it is not perhaps easy to determine, in all cases, under what circum- stances, and at what particular period, money which has once been, or has been derived from, separate estate, has ceased to become separate estate, so that the husband's marital right attaches. Where the money is secured by bond, or note, or in some other way, so that a chose in action is created (see per Jervis, C. J., in Bird v. Peagrum, sup.), administration will be necessary. Receipt by Husband.'] The wife may expressly autho- Receipt ot income rize or tacitly permit her husband to receive the income of ^^ tasband. her separate property, and if it be so received and applied for the benefit of the family, she can claim no reimbursement. Powell V. Hankey, 2 P. W. 82; Milnes v. Bush, 2 Ves. jun. 488 ; Caton v. Rideout, 1 Mac. & G. 599, 603 ; Gardner v. Gardner, 1 Giff. 126; Roioley v. Unwin, 2 K. & J. 138 ; Payne v. Little, 26 Bea. 1 ; comp. Rowe v. Rowe, 2 De G. & S. 294. But the court ought, in such a case, to be satis- fied that the husband had not in any degree influenced the acts and conduct of the wife (see Hughes v. Wells, 9 Ha. 749, 773), and if there has been no such permission on her part, she will be entitled to be repaid what he has received. See Parker v. Brooke, 9 Ves. 583 ; Mawhood v. Milbanke, 15 Bea. 36. The wife cannot, however, in any event be a wife creditor for creditor for more than one year's income of her separate ""^y^^"^- estate which her husband has received. Parkes v. fVhite, 11 Ves. 225; Thrupp v. Harman, 3 M. & K. 513; see Lea V. Grundy, 1 Jur., N. S. 953. But if he place it to his own credit at his bankers, she will have a right to it by survivorship (Beresford v. Armagh, 13 Sim. 643; see Gardner v. Gardner, 1 Giff. 126), and if it can be traced, where followed, as where it is invested in a purchase in the name of the hus- band, it will be followed. Darkin v. Darkin, 17 Bea. 578; Scales V. Baker, 28 Bea. 91. If the fund be secured by a mortgage on the husband's estate, the trustee must enforce payment, or he will be liable for a breach of trust. Payne Y. Little, 26 Bea. 1. 878 Husband and Wife, AduUeiy, Property of every kind may be fliib- jecfc to. In general. Real estate. Interests In pos- session or rever- sion. Life estates and chattels reaL Disposition of equitable interest by unacknow- ledged deed or ■wUl. Wife's Adultery.] The adultery of the wife will not affect her rights to property settled to her separate use (Seagrave v. Seagrave, .13 Ves. 443; Goldsmid v. Heath- cote, 10 L. T., N. S. 811; see Evans v. Carrington, 2 D., F. & J. 481), though it will be property in which she has a joint interest with her husband. Duncan v. Campbell, 12 Sim. 616; see Xnox v. Wells, 2 H. & M. 674. What Property may be subject to— Power of disposition by Wife.] It may be laid down as a general rule that property of every description, real as well as personal, and any interest therein, may be settled to the wife's separate use. And as a married woman is considered in equity, with regard to property settled to her separate use, as a feme sole, no examination on any conveyance of such equit- able estate or interest, or on payment of money out of court, is necessary. Lechmere v. Brotheridge, 32 Bea. 353. So^ in equity, she may dispose of an estate in fee (Adams v. Gamble, 12 Ir. Ch. Rep. 102; Taylor v. Meads, 11 Jur., N. S. 166; Hall v. Waterhouse, ib. 361, overruling Lech- mere V. Brotheridge, 32 Bea. 353, on this point), her vested life estates and interests in realty in possession {Neweomen V. Hassard, 4 Ir. Ch. Rep. 274), or reversion {Major v. Lansley, 2 R. & My. 355), and her interests in cliittels real {Anderson v. Anderson, 2 M. & K. 427), choses in action (Fettiplace v. Gorges, 1 Ves. jun. 46; Wag staff e v. Smith, 9 Ves. 520; Calvert v. Johnson, 3 K. & J. 556), and spe-> cific chattels in possession {Ly. Arundel v. Phipps, 10 Ves. 140), or other personal estate {Lechmere v. Brotheridge, 32 Bea. 353), as if she were a feme sole. The disposition (so far as it affects such equitable estate or interest), may be by deed, and the deed, though operating on real estate, may be unacknowledged. Neweomen v. Hassard, 4 Ir. Ch. Rep. 274 ; Adams v. Gamble, 12 Ir. Ch. Rep. 102 ; Taylor v. Meads, 11 Jur., N. S. 166, overruling on this point Lech- mere V. Brotheridge, 32 Bea. 353. So she may dispose of such interests by her will, to which her husband's assent is not necessary. Fettiplace v. Gorges, sup.; Rich v. Cockell, 9 Ves. 369; Hall v. Waterhouse, 11 Jur., N. S. 361. But this power of disposition without an acknowledged deed does not extend to her interests in realty contingent upon the in- solvency of her husband, so long as the interest is contin- gent {Bestall V. Bunbury, 13 Ir. Ch. Rep. 318), nor to a contingent interest in personal estate settled to her separate use upon the like contingency. Mara v. Manning, 8 Ir. Eq. Rep. 218. This case was before the 20 & 21 Vict. c. 57, ante, Wife's Contracts and Liabilities. 379 p. 336; consider now the effect of this statute in cases to which it applies. And where the legal estate in lands is Legal estato. vested in a married woman' to her separate use, that must e conveyed by an acknowledged deed ; and if not so con- Teyed, then, although she may dispose of the equitable estate by an ordinary deed or by will during her life, she will be, and after her death her heir will be, a trustee of the legal estate for the person equitably entitled. See J. Wil- liams, E. P. 216; Hall v. Waterhouse, 11 Jur., N. S. 361. The trust for the wife's separate use, like the trust re- Determination of straining anticipation, may be put an end to after the deter- ''"^*- mination of the coverture by subsequent dealings by the wife with the property, as by disposing of it and investing the proceeds in other property. Wright v. Wright, 2 J. & H. 647. As to the effect of protection orders, see post, Ch. XII. The wife's separate real estate undisposed of devolves Devolution of upon her heir, subject to the life interest, if any, of her sepa^'e estate. husband under any settlement, or as tenant by the curtesy {ante, p. 317); and as administrator he will be entitled to her separate personalty undisposed of in those cases in which he does not take it jure mariti. Ante, pp. 326, 330, 377. Wife's Contracts and Liabilities.^ A contract for sale contracts when {Grigby v. Cox, 1 Ves. sen. 517) of the separate estate of "•^'^^^ »" ^*- the wife is valid and binding on the property (i6.), though ^^p'^'^s. no decree can be made against her personally. See Nantes V. Corrock, 9 Ves. 189; Aylett v. Ashton, 1 M. & C. 112. The wife's separate property will also be liable in respect of specialties. her contracts under seal, though her husband {Hulme v. Tenant, 1 B. C. C. 16; Xa Touche v. Zo Touche, 3 H. & C. 576) or a stranger {Heatley v. Thomas, 15 Ves. 596) may have joined in the instrument. The wife will also be written engage- liable on her bill or note {Bullpin v. Clarke, 17 Ves. 365; "^'s- Stuart Y. Ld. Kirkwall, 3 Mad. 387; see Vandergucht v. De Blaquiere, 5 M. & C. 229; M'Henry v. Davies, L. R., 10 Eq. 88), or mere written agreement {Master v. Fuller, 4 B. C. C. 19; Owens v. Dickenson, Cr. & Ph. 48), and implied, even upon her contracts implied by law if they arise out of written engagements. Murray v. Barlee, 3 M. & K. 209; Owen V. Homan, 4 H. L. C. 997. To what extent her verbal engage- separate estate will be liable on ordinary verbal engagements ™<''''- or on an implied promise, for instance, to pay for goods ordered or the like, is perhaps not (Juite settled. In Johnson V. Gallagher (3 D., F. & J. 494), it was laid down by Turner, L. J., that a woman having separate estate and living apart from her husband must be understood as con- 380 Husband and Wife. Wrongful acts. Breach of trust. Acquiescence In breach of trust. Principle of liabi- Uty. Joining In hus- band's security. Acting for hus- band. trading with reference to such estate, at all events until the contrary is proved, but that to bind her by a general engage- ment in ordinary cases it should appear that it was made with reference to and upon the faith and credit of it; and in this view Kindersley, V.-C, concurred generally, although he did not lay down any qualification that the wife should be living apart from her husband. Mrs. Matthewman's Case, L. R., 3 Eq. 787. In Butler v. Cumpston (L. E., 7 Eq. 16), the savings of a married woman's separate estate were held liable to in- demnify trustees who, at her request, had taken shares in a company, and to answer the calls. So a married woman, who has taken shares in her own name and paid for them out of her separate property, will be put on the list of con- tributories. Mrs. Matthewman's Case, L. E., 3 Eq. 781. This doctrine, however, is not applicable after the death of a married woman having a separate estate for life, with an absolute power of appointing it by will, or by will or deed which is exercised. lb. p. 786 ; SAattock v. Shattock, L. E., 2 Eq. 182. The separate property of a married woman will be liable if she has committed a breach of trust {Clive v. Carew, 1 J.. & H. 199; see Mara v. Manning, 2 Jo. & L. 311, 318), though not where there is a clause restraining anticipation. Clive V. Carew, sup. In such a case, however, where there is such a clause, her arrears of income actually due are liable. Pemberton v. M'Gill, 1 Dr. & S. 266; see Fitz- gibbon v. Blake, 3 Ir. Ch. E. 328. Her acquiescence in a breach of trust committed by her trustees will be a bar to her claims against them in respect of her separate estate. Jones V. Higgins, L. E., 2 Eq. 638; see Brewer v. Swirles, 2 Sm. h Gr. 219; JDavies v. Hodgson, 25 Bea. 177. It was at one time considered that the principle upon which the wife's separate property was liable upon her contracts or engagements was that they were equivalent to an equitable appointment of the property. Field v. Sowle, 4 Euss. 112. But in Owen v. Dickinson (Cr. & Phil. 48) this liability was put upon the ground that, where she has the power of dealing with her separate property, she had also the power incident to it of contracting debts to be paid out of it, and that the obligations thus incurred would be enforced in equity against such property. Where the wife is jointly liable, in respect of her separate property, with her husband for his debt, his estate will first be liable to make it good as between them and his assignees. Aguilar v. Aguilar, 5 Mad. 414. And if she can be considered as acting on behalf of her husband, though he may be a lunatic, Bestraint on Anticipation. 381 her separate estate will not "be liable. Re Pugh, 17 Bea. 336; Davidson v. Wood, 1 D., J. & S. 465. Although the court has jurisdiction over the income of the Equitable remedy, separate property, effect will not be given to the wife's con- tracts against the corpus, and there is no remedy hj personal decree against the wife. Francis v. Wigzell, 1 Mad. 264, ante, p. 379; see, at law, Larkin v. Marshall, 4 Ex. 806; Edwards v. Martin, 17 Q. B. 693. The Statute of Limitations is not a bar to a simple contract statute of Limi- debt contracted by a married woman, in respect of her se- *°-"™^- parate estate, six years before the commencement of the suit. Vaughan v. Walker, 6 Jr. Ch. Rep. 471 ; see Norton v. Turvill, 2 P. W. 144; Coppin v. Gray, 1 Y. C. C. C. 205. As to the property which, under the Act of 1870, is made Actonsro. separate estate of the wife, see ante, Ch. VI., p. 339. Her independent right of action is restricted to the property mentioned in s. 11. It will also be observed that the statu- tory remedy against her is restricted to her ante-nuptial debts (s. 12) ; and see Sanger v. Sanger, post, p. 384. Sec. 2. — Restraint on Anticipation. Origin of . . . . . . 381 Must accompany separate Use Clause . . . . 381 No particular. Words neces- sary to create .. . . 381 What Words mill create . . 382 WJiMt Words will not . . 882 Effect of Clause .. . . 382 Arrea/rs of Income .. . . 382 IncoTne available for Costs.. 383 Operates only during Cover- ture 383 Protection Order .. ., 383 May be restricted to par- ticular Coverture . . .. 383 Otherwise operates on all Covertures . . ,. 383 May affect any Property or Interest 383 As to LiaHlity for breach of Trust 384 Court cannot relieve from. . 384 The doctrine of separate use is of ancient date; but the origin of. provision in restraint of anticipation is, comparatively speak- ing, modern. It was first introduced in Miss Watson's Settlement, at the instance of Lord Thurlow, who was a trustee. See Pybus v. Smith, 3 B. C. C. 340, n. (1); Jack- son V. Hobhouse, 2 Mer. 487. It is not necessary that express negative words should be jto particular used in the receipt clause, or that any particular form of '^°^^l^l^'^°^ words should be used; but the intention must be clear that she should be restrained from anticipation, Moore v. Moore, 382 Husband and Wife. What words will not restrain anti- cipation. 1 Coll. 54, 57; Harrop v. Howard, 3 Ha. 624; Brown v Bamford, 1 Phil. 620; Re Sarel, 10 Jur., N. S. 876. It ■will be sufficient if the trust be to pay the income to such person as the wife shall by writing, and as the same becomes due, but not by way of assignment, charge or other antici- pation, appoint. Brown v. Bamford, 1 Phil. 620; see Harnett v. M'Dougall, 8 Bea. 187. So where the gift is of income to her separate use not to be sold or mortgaged. Steedman v. Poole, 6 Ha. 193; Goulder v. Camm, 1 D., F. & J. 146. So if the gift or trust be coupled with a direc- tion that the wife shall not sell, charge, mortgage or encumber the property, coupled with another declaration that she shall take it for her own sole and separate use and bene- fit. Baggett v. Meux, 1 Coll. 138, aff. 1 Ph. 627; Medley V. Horton, 14 Sim. 222, is contra, but may be considered as overruled. So where the property is to be a separate per- sonal and inalienable provision during the coverture. Spring V. Pride, 10 Jur., N. S. 646, sup.; see Re Sarel, ib. 876. The intention, however, must be clear to restrain anticipa- tion. A direction for payment of income to a female as she shall from time to time appoint, and in default into her proper hands for her separate use, will not be sufficient to restrain her power of disposition. Pybus v. Smith, ib. 340; Witts V. Dawkins, 12 Ves. 501. Nor a declaration that her receipts shall be, or shall alone be, good discharges ( Sturges V. Corp, 13 Ves. 190; Acton v. White, 1 S. & ^. 429), unless there is also a declaration that the receipts shall only be a discharge after the income becomes due. Baker v. Bradley, 7 D., M. & G. 597 ; see Field v. Evans, 15 Sim. 375. In the former case there were other expressions showing an intention to restrain anticipation. A direction that the interest shall be paid on personal appearance and receipt is insufficient. Ross's Trust, 1 Sim., N. S. 196. So that it shall be for her absolute use free from aU marital control. Symonds v. Wilkes, 11 Jur., N. S. 659. It will not be inferred from marriage articles, by which the property of the intended wife is agreed to be settled to her separate use, that it was to be with the restraint clause. Symonds v. Wilkes, 1 1 Jur., N. S. 659. When the clause is effectual, the wife, during the coverture, can do no act which will have the effect of depriving herself of her interest in the property (see Horlock v. Horlock, 2 D., M. & G. 644; Re Sykes, 2 J. & H. 415), though an attempted con- veyance of the property may operate as a release of her past income, and may be a good consideration to support an arrangement or settlement which would otherwise be void. Arrears of income. Harman T. Richards, 10 Hn. 81. And arrears of income Marriage articles. Effect of clause. Restraint on Anticipation, 383 may be assigned, but not an apportioned part of interest, calculated up to the time of the assignment, the usual day of payment of interest not having arrived, though in law considered as accruing due de die in diem. Re Brettle, Jollande v. Burdett, 2 D., J. & S. 79. The income actually AyaiiaWe for due, though intended for the wife's separate use, may still, ^'"^^^ '°^''" in some cases, be available for other purposes ; for instance, for the reimbursement of proper costs incurred by trustees under the instrument creating the trust. D'Oechsner v. Scott, 24 Bea. 239. Where property is settled to the joint appointment of husband and wife during their joint lives, with restraint on anticipation, this will not prevent their appointing to themselves in moieties prior to a divorce. Re Linzee, 23 Bea. 241. The separate use can only exist, and the clause in restraint of anticipation is only effectual, during coverture. The two questions are identical as to the prin- ciple which must regulate the decision upon them. Tullett V. Armstrong, 4 M. & Cr. 377, 392. Thus if the feme be Operates only discovert at the time of the gift, or become so afterwards, the ^'^^ coverture, fund may be alienated by her. Barton v. Briscoe, Jac. 603; In re Gaffee, 1 Mac. & Gr. 547. So she may require it to be transferred to her {Buttanshaw v. Martin, Johns. 89), or may convert it into other property (Wright v. Wright, 2 J. & H. 655), by which means the trust will be determined. So if she has a protection order under 20 & 21 Vict. c. 85. i^otection order. Cooke V. Fuller, 26 Bea. 99. The clause in restraint, like the trust for separate use, may May be restricted be restricted to a particular coverture. Re Gaffee, 1 Mac. *er't™!'^°°" & G. 545; Moore v. Morris, 4 Drew. 33. But in such a case the words should be clear and precise ; for the expres- sion "independently of her intended husband^' in amarriage settlement will apply to a future husband. Hawkes v. Hub- bach, L. E., 11 Eq. 5. For it is now settled, that unless otherwiseopcrates clearly so restricted, the gift to the separate use of a woman '"' '^ ooTerturas. with restraint in anticipation will operate upon all her cover- tures and be effectual, unless destroyed while she is discovert. ' Tullett V. Armstrong, Scarborough v. Barman, 4 M. & C. 377; ' Re Gaffee, sup., in effect OYetvnlmg Knight v. Knight, 6 Sim. 1 2Jl., and several other cases ; see also Anderson v. Anderson, rep. 2 M. & K. 427. The restraint clause will May affect any be valid, whether the subject-matter on which it is to operate aSunteresnn tt. be real or personal estate, and whatever the extent of the interest, whether absolute, for life, or for years. Baggett v. Meux, 1 Phil. 627. As the clause only operates during the coverture, equity permits to this extent a modification of the rule that restrictions on the absolute ownership of property are void. See ante, pp. 188, 200, and post, tit. " Wills." 384 Husband and Wife. As to its liability lor breacli of trust. Acquiescence in misapplication of lund. Court cannot re- lieve from. Though the separate property of a married woman will, in general, be liable for her breach of trust {ante, p. 380), it will not where she is restrained from anticipation. Clive v. Carew, 1 J. & H. 199. But arrears of income, subject to the restraint clause, will be liable in such cases. Pemberton V. M'Gill, 1 Dr. & S. 266. But it may be doubtful whether the restraint upon alienation wiU protect a feme coverte against the rules of the court as to lapse of time and ac- quiescence. Per Turner, L. J., Derbishire v. Home, 3 D., M. & Gr. 113. The court has no power to enable &feme covert to alien her life estate where there is a restraint on alienation, however beneficial the act may be for her (Robin- son V. Wheelwright, 6 D., M. & G. 535), and trustees can- not part with a fund affected by such restraint {Gaskell's Trusts, 11 Jur., N. S. 780), nor can she enter into an effec- tual agreement to release them from liability for so doing. Dickson V. Hook, 14 W. R. 552. But property subject to the restraint clause will be liable under the Act of 1870, s. 12. Sanger v. Sanger, L. K., 11 Eq. 470. Yalta ii for an Immediate sepa- ration. CHAPTEE XI. SEPARATION DEEDS. Valid if for an immediate - - .. .. 384 ..385 SaAifforfutnre Separation 385 Trustee not necessary . . 385 Consideration necessary for Settlement, ^c 385 No Consideration, Husband's Covenant voluntary • • 386 " f Trustee to in- Promise hy Third Person . . 386 Agreement orChargel>y Wife 386 Stipulations contrary to Public Policy . . . . 386 As to Custody of Children.. 386 Provision for Children — After-born Children . . 387 Misrepresentation — Fraud . 387 Wife's subsequent Adultery . 387 Where no Bar to Divorce Suit 387 Husband's Covenant not to molest 387 Reconciliation .. •• 388 Qood return to Writ of Habeas Corpus .. .. 388 It is settled, after some conflicting decisions (see Vander- gucht V. De Blaquiere, 5 M. & C. 229), that agreements or deeds contemplating and providing for an immediate sepwa- tion wUl, if properly framed, be specifically executed, m- Zl WaL,l H. L. C. 538; 5 H. L. C. 40. InVansU- tart V. Vansittart (2 D. & J. 249), Turner, L. J., observed, Separation Deeds. 385 that the court would enforce agreements for separation (immediate separation), and that of course the deed which was to be executed would contain covenants for that separa- tion which were necessary. In Wilson v. Wilson (1 H. L. consideration— C. 538), an agreement by the wife to pay an annuity to her SSng''s''uT"° husband, and to abandon a suit in the Ecclesiastical Court against him, was held to be a good consideration and ade- quate to support articles for a separation. See Logan v. Birkett, 1 M. & K. 220. And where the wife had in- stituted a suit for a divorce, and a deed of arrangement was executed whereby the suit was to be discontinued, and an income was provided by the husband for the wife's separate use for the purpose of maintenance and keeping up an esta- blishment, the husband to be at liberty to partake of the benefit of the establishment, it was held that such a deed was valid, and that a court of equity would specifically execute it. Jodrell v. Jodrell, 9 Bea. 45 ; see S. C, 14 Bea. 397. A separation deed contemplating and providing for an Not followed by immediate separation, but which does not take place, is ^'i*™ ™- wholly void, and cannot, so far as regards any settlement of property in it, take eflTect as a voluntary settlement. Bindley V. Mulloney, L. E., 7 Eq. 343. And agreements or deeds otherwise u for a made in contemplation of and providing for a, future separa- '"'"t^ separation. tion are invalid ( Westmeath v. Westmeath, 1 Dow., N. S. 519 ; Proctor v. Robinson, 35 Bea. 329 ; on app. 15 W. R. 138), though other provisions in the instrument unconnected with the void agreement may be good, and capable of being enforced. H. v. W., 3 K. & J. 382 ; Cartwright v. Cart- wright, 3 D., M. & Gr. 982 ; Merryweather v. Jones, 4 Giff. 509 ; see Cocksedge v. Cocksedye, 14 Sim. 244. The question of consideration in separation deeds, or in Consideration, articles for a separation, is material as regards the agree- ments or covenants in them which relate to property and engagements by or on the part of the husband or wife. It is not essential to their validity that a trustee should be Trustee not ne- a party for the wife, in order to covenant to indemnify the ''^'^^• husband against her debts. Frampton v. Frampton, 4 Bea. 287. But where a trustee is a party to the deed, and he thereby covenants with the husband to indemnify him against the wife's debts, this is a good consideration for a settlement consideration ne- or covenant by the latter. Stephens v. Olive, 2 B. C. C. Sr&c."'""' 90 ; Worrall v. Jacob, 3 Mer. 256 ; see Jones v. Waite, 9 CI. & F. 101. For in contemplation of law the relation continuing iiaw- of husband and wife continues to exist notwithstanding a ' ^' deed of separation, and the husband will continue liable for necessaries supplied to her, unless there is a provision made w. c c 386 Husband and Wife. Covenant by trus- tees to Indemnity. Promise by third person. Agreement or cbarge by wife. Deed to contain all proper and usual clauses. Stipulations con- trary to public policy. Facilitating divorce. Custody of chil- dren. for her which is paid. Hindley v. Ms. of Westmeath, 6 B. & C. 200, 215; see Biffin v. Bignell, 7 H. & N. 877. To relieve him from this liability, a covenant to indemnify him against them by a trustee or some third person is generally stipulated for by the husband. Where there is no such covenant or some other consideration, the husband's settle- ment of, or covenant in respect of, property is voluntary, and cannot be enforced in equity. Walrond v. Walrond, John. 18; Cowx V. Foster, 1 J. & H. 30; consider Clough v. Lambert, 10 Sim. 174, in which it was held, that although there was no covenant to indemnify the husband, his cove- nant to pay an annuity might he enforced against his exe- cutors but not against his creditors. Therefore, though a covenant by trustees to indemnify the husband against the wife's debts may not be essential to the validity of a deed of separation, such a covenant is important as constituting a good consideration for a settlement or covenant by the hus- b.and, though it is not the only consideration. The execution of a deed of separation by a husband is a good consideration for an agreement by a third person to contribute towards the discharge of some of the husband's debts. Waits v. Jones, 9 CI. & Fin. 101. And a charge by the wife upon her separate property of an annuity for her husband is a good consideration for a release by him in respect of her future property. Logan v. Birkett, 1 M. & K. 220. So an agreement between a husband and the father of the wife that the husband and wife shall live apart, and that the hus- band shall execute a deed of separation containing all usual and proper clauses, and securing an annuity for the main- tenance of his wife and child, discloses a good consideration, and will be decreed to be specifically performed. Gibbs v. Harding, L. E., 5 Ch. 336. In this case the deed which was prepared and which the husband refused to execute, contained a covenant to indemnify him against the wife's debts, which Lord Hatherley, L. C, observed, " in all these cases is the consideration given to the husband." lb. p. 838. It was not of course intended by this to lay down the rule that no other consideration would be sufiBcient to sup- port such agreements. See Wilson v. Wilson, 1 H. L. C. 538. Where any stipulations in an executory agreement for a separation are contrary to public policy, no part of it will be enforced ( Vansittart v. Vansittart, 2 D. & J. 249), and, in this respect, an agreement for a separation differs from a deed of separation, lb. If, therefore, there are stipulations that the wife shall facilitate the husband's pro- ceedings for a divorce, the agreement will not be specifically executed. Hope v. Hope, 8 D., M. & G. 731. Nor wUl it Separation Deeds. 387 where there is a stipulation that the children shall be deli- vered to, and remain under, the care of the mother {lb.; Vansittart v. Vansittart, sup.), though, in special cases, the conduct of the father towards his children may have been such as to render such a stipulation proper, and, in such cases, it will be enforced in equity. Swift v. Swift, 34 Bea. 266, aff. 11 Jur., N. S. 148. With respect to the custody of chil- dren, the Court of Chancery, by virtue of its general juris- diction, enlarged by the 2 & 3 Vict. c. 54, has power to determine who shall have the custody of the children in a separation between husband and wife. See Warde v. Warde, 2 Ph. 786. Where there are children, provisions in the separation Provision for cui- deed for their benefit are common, but such provisions will chiiSm.'°'''°™ not extend to children born after subsequent cohabitation, unless expressly framed so as to include them. Hulme v. Chitty, 9 Bea. 437. If through misrepresentations the hus- Misrepresentation band has been induced to enter into a covenant with the — '™'"*- trustee under the deed to pay him an annuity for the wife, the covenant cannot be enforced. Evans v. Edmonds, 13 C. B. 777. And such deeds will be set aside if either the husband or wife has been induced by fraud to enter into them. Evans v. Carrington, 2 D., F. & J. 481. Thus, the circumstance of a wife having induced her husband to execute a deed of separation in contemplation of a renewal of illicit intercourse, is sufficient to invalidate the deed. lb.; see Brown v. Brown, L. R., 7 Eq. 185. But a deed of sepa- wife's snbseijuent ration, if valid when executed, is not invalidated by the sub- **'^'*^- sequent adultery of the wife. Seagrave v. Seagrave, 13 Ves. 443. Nor will such a deed affect the right of the wife to a share of her husband's property under the Statute of Distri- butions unless such right be expressly excluded by the deed. Slatter v. Slatter, 1 Y. & C, Ex. 28. A deed of separation not acted upon will be no bar to a where no bar to suit by the wife under the Divorce and Matrimonial Causes *'™«=«8uit. Acts. Cock V. Cock, 3 S. & T. 514 ; see Williams v. Baily, L. R., 2 Eq. 731. But a covenant in a separation Hnsband's cove- deed by the husband with his wife's trustees, that she may m™^"°"° live separate from him and that he will not endeavour to compel her to cohabit with him, will be enforced, and he will be restrained from proceedings in the Divorce Court for a restitution of conjugal rights. Hunt v. Hunt, 4 D., F. & J. 221. But, in the Ecclesiastical Court, a separation deed is no bar to a suit for restitution of conjugal rights. Spering v. Spering, 32 L. J., Mat. Ca. 116; see Thomas v. Everard, 6 H. & N. 448. cc2 388 Reconciliation. Good return to habeas corpus. Husband and Wife. Prima facie reconciliation with cohabitation puts an end to a deed of separation {Bateman v. Ross, 1 Dow. 235 ; Westmeath v. Westmeath, 1 Dow., N. S. 519; Webster Y. Webster, 4 D., M. & G. 437), but not reconciliation witK- out cohabitation (Frampton v. Frampton, 4 Bea. 287, 289), nor residence under the same roof without reconcihation {Bateman v. Boss, 1 Dow. 245) ; but a proviso may be inserted that the trusts shall continue though the parties become reconciled, and such a proviso is valid. Wilson v. Musehett, 3 B. & Ad. 743; Webster v. Webster, 4 D., M. & G. 437; see Crouch v. Waller, 4 D. & J. 302; Bandle v. Gould, 8 E. & B. 457. The existence of a separation deed will be a good return to a writ of habeas corpus granted at the instance of the husband seeking to obtain the custody of his wife {Rex v. Maud, 1 Burr. 542), and the husband will be restrained from molesting her. Sandars v. Rodway, 16 Bea. 207. CHAPTER XII. PROTECTION ORDERS, JUDICIAL SEPARATION, AND DISSOLU- TION OP MARRIAGE. Divorce and Matrimonial Causes Acts Wife deserted may apply for Protection Order Effect of Payments to and Acts done by Wife protected Property in Remainder . . Effect of Judicial Separation 389 Renewal of Cohabitation . . 390 389 389 389 389 390 Contracts — Joint Power . . Settlement of Damages Settlement of Wife's Pro- perty Settlement by Husband . . Dissolution of Marriage . . Wife's Reversionary Pro- perty Jurisdiction of Foreign Courts 391 390 390 391 391 Divorce and Ma- trimonial Causes Act. In this work the Divorce and Matrimonial Causes Acts, 20 & 21 Vict. c. 85, amended by the 21 & 22 Vict. c. 108, are only considered so far as they relate to property. By them important alterations are made in the law with reference to the earnings of married women in certain cases ; to the settlement of damages given in a suit for the dissolution of the marriage ; to the settlement of part of the wife's pro- perty ; and to her rights after a judicial separation or disso- lution'of marriage. With regard to the earnings of the wife, the Act of 1870 {ante, p. 339) has rendered the provisions of the first-mentioned acts relating to such earnings in many Protection Orders, SfC. 389 cases to a great extent unuecessary, but it does not affect other provisions contained in them, which will presently be noticed. By the 20 & 21 Vict. c. 85, s. 21, a wife who has been wife deserted may deserted by her husband may apply to a magistrate or pro^'fJn"''*" °' justices, or the judge ordinary of the Divorce Court (21 & 22 Vict. c. 108, s. 6 ; see Ex parte Aldridge, 1 S. & T. 88), who are empowered to give her an order protecting her earnings and property acquired since the commencement of such desertion, from her husband and those claiming under Effect of. him, and such earnings and property are to belong to her as if she were a feme sole, and during the continuance of the order (which the husband may apply to discharge) the wife Protected property is to be deemed to have been, during such desertion, in feme's oie? ""^ °* * the like position as to property and contracts as if she had obtained a decree oi judicial separation. See infra, as to the effect of a judicial separation. The protection extends to property to which she has become entitled as executrix, administratrix or trustee since the commencement of the desertion, and as from the death of the testator or intestate. 21 & 22 Vict. c. 108, s. 7. The order will remain in force until discharged by the judge ordinary, magistrate or justices. 20 & 21 Vict. c. 85, s. 21; see Ex parte Sharp, 5 B. & S. 322. The reversal or discharge of the order will not affect the rights of any person in respect of any debts, contracts or acts of the wife between the time of the making of the order and the reversal or discharge of it. lb.; see Mason v. Mitchell, 3 H. & C. 528. Notwithstanding the reversal of any protection order, or Payments to and the cessation of separation, all persons who, without notice protected. ^^ ° thereof and in reliance of such order, shall make any pay- ment to the wife, or permit any transfer or act to be done by her, are protected as if the order had been subsisting or the separation had not ceased at the time of the payment, &c. 21 & 22 Vict. c. 108, s. 10. Property of which the wife is possessed in remainder or Property in re- reversion at the date of the desertion or decree (as the case S^protoiting" ° may be) shall be deemed to be included in the protection "''der. order. 21 & 22 Vict. c. 108, s. 8. And although the order may be in terms limited, it must be construed as extending to the interests specified in this section. Re Whittingham, 10 Jur., N. S. 818. The effect of a protection order, it will be seen, is to place the wife in the same position as to pro- perty and contracts as if she had obtained a decree of judi- cial separation. The decree of judicial separation has the same effect as a Effect of decree of divorce a mensa et thoro before the act 20 & 21 Vict. c. 85, j^?io°S"''"' 390 Husband and Wife. s. 16, but this did not constitute her a feme sole as to pro- perty. By sect. 25, however, of this act, " In every case of a judicial separation the wife shall, from the date of the sen- tence and whilst the separation shall continue, be considered as a feme sole with respect to property of eveiy description which she may acquire, or which may come to or devolve upon her, and such property may be disposed of by her in all respects as a. feme sole, and on her decease the same shall, in case she shall die intestate, go as the same would have gone if her husband had been then dead : provided that if aay such wife should again cohabit with her husband all such property as she may be entitled to when such cohabita- tion shall take place, shall be held to her separate use, sub- ject, however, to any agreement in v^iting made between herself and her husband whilst separate." The effect of a judicial separation as to contracts is, that the wife while separated is to be considered a, feme sole for the purposes of contracts, her husband not being liable for her engagements. Nothing is to prevent the wife from join- ing her husband during the separation in the exercise of a joint power (s. 26). If the wife obtains a protection order she will be entitled to the payment of a fund settled to her separate use with restraint in anticipation. Cooke v. Fuller, 26 Bea. 99; In re Kingsley, ih. 84. In those cases in which damages are given on any petition for dissolution of marriage or for judicial separation the Divorce Court has power to direct in what manner the damages shall be paid, and also to order the whole or any part thereof to be settled for the benefit of the children (if any) of the marriage or as a provision for the maintenance of the wife. 20 & 21 Vict. c. 85, s. 33. In any case in which such court shall pronounce a sen- wiie'8 property on igncg of iudicial separation for adultery on the part oi xne Renewal of coha- bitation. Contracts. Joint power. Damages may lie directed to be settled. Settlement of sentence of disso- lution or sepa- ration. Settlement by husband on disso- lution. wife, it shall be lawful for such co«rt, if it shaU thmk proper, to order such settlement as it shaU think reasonable to be made of the property of the wife in possession or reversion for the benefit of the innocent party and of the children ot the marriage, or any of them (20 & 21 Vict c. 85, s. 45); and any instrument executed pursuant to such order is to be valid notwithstanding the disability of coverture (23 & l-i. Vict. c. 144, s. 6). The court, on dissolving the marriage, may order the husband to secure to the wife such gross sum of money or such annual sum of money for any term not exceeding her own life (or such monthly or weekly sums during their joint lives, 29 & 30 Vict. c. 32, si), as having regard to her fortune (if any), to the ability of the husband and to the conduct of the parties it shall deem reasonable, ana Protection Orders, Sfc. 391 for that purpose may refer it to any one of the conveyancing counsel of the Court of Chancery to settle and approve of a proper deed or instrument to be executed by all necessary parties ; and the said (Divorce) Court may, if it shall see fit, suspend the pronouncing of its decree until such deed shall have been duly executed. 20 & 21 Vict. c. 85, b. 32. As to the powers of this court to deal with marriage settle- ments, see that title. On a dissolution of marriage, although there is no express Dissolution of enactment, as in the case of a judicial separation, that there- ™^"^»- upon the (former) wife shall become a feme sole to all in- tents, yet such is the necessary consequence of the act. Wilkinson v. Gibson, L. R., 4 Eq. 162, 169. After a decree of judicial separation or dissolution of mar- wue'srever- riage the wife is entitled to her reversionary property sub- ''°™^ property, sequently falling into possession, though she had previously joined her husband in a mortgage of it (Re Insole, L. R., 1 Eq. 470; Prole v. Soadi/, L. R., 3 Ch. 220), and after the decease of the wife her personal representatives will be en- titled. Wilkinson Y. Gj6«om, L. R., 4 Eq. 162; comp. Cooke V. Williams, 11 W. R. 504; and see Jessop v. Blake, 3 Giff. 639. It win be observed, however, that the mortgage in Re Insole (sup.), was not under the 20 & 21 Vict. c. 57 (ante, p. 336). For a mortgage or conveyance under that act will, it is considered, give a mortgagee or purchaser an indefeasible! interest as against the wife, whether surviving, separated or divorced. The decree for a dissolution of the marriage, if made absolute, takes effect as from the date of the decree nisi. Prole v. Soady, L. R., 3 Ch. 220 ; see Johnson v. Lander, L. R., 7 Eq. 228; Swift v. Wenman, L.R., 10 Eq. 15. And if the wife has an absolute power of appointment in default of children, and there are none, she may appoint to her- self after such a decree. See Bond v. Taylor, 2 J. & H. 473. In an important case in the House of Lords (Shaw v. jurisdiction of Gould, L. R., 3 H. L. 55), it was decided that a foreign '"eign courts, tribunal has no authority, so far as any consequences in England are concerned, to pronounce a decree of divorce a vinculo in the case of an English marriage between English subjects, unless they are at the time of the decree bona fide domiciled in the country where the tribunal has juris- diction, and the suit is prosecuted without collusion. In the same case it was questioned whether collusion could be set up after both parties to the suit were dead; and also by Lord Westbury, whether the jurisdiction of Scotch courts to decree a dissolution for adultery was not restricted to cases where the adultery was committed in Scotland itself. See Bin V. Boutinez, L. R., 1 P. & D. 487. ( 392 ) JOINT STOCK COMPANIES FORMED UNDER THE ACT OF 1862. Ch. 1.— Foemation of Companies and Allotment op Shakes, p. 393. Sec. L— Preliminaries — Promoters, p. 393. Sec. 2. — Act op 1862 (Amended bt Act op 1867), p. 395. Sec. 3. — Application for Shares — ^Allotment, p. 399. Sec. 4. — Deviation prom Prospectus— Misre- presentations in, p. 402. Ch. 2.— Distribution op Capital — Registration— Lla- bilitt op Members, p. 406. Sec. 1. — Provisions op Acts op 1862, 1867, and Matters connected with Register, p. 406. Sec. 2.— Extent op Liability of Shareholders, p. 409. Ch. 3. — Sale, Transfer, Surrender and Forfeiture op Shares, p. 410. Ch. 4. — Management of Companies, p. 417. Sec. 1. — Statutory Provisions, p. 417. Sec. 2.— Powers, Duties and Liabilities op Directors, p. 419. Sec. 3.— Acts Ultra and Intra Vires, p. 427. Sec. 4.— Calls— Dividends, p. 431. Ch; 5.— Winding-up, p. 433. Sec. 1. — By the Court, p. 433. Sec. 2. — Who are Contributories— Rights and Liabilities op, 435. Sec. 3. — Power op Judge— Court, p. 439. Sec. 4. — Voluntary Winding-up, p. 443. Sec. 5. — Miscellaneous Provisions, p. 446. Ch. 6.— Application op Act op 1862 to Companies not formed under it, p. 449. Formation of Companies and Allotment of Shares. 393 CHAPTER I. FORMATION OF COMPANIES AND ALLOTMENT OF SHARES. Sec. I.— Preliminaries — Promoters. Promoters of Companies — Aiithority of . . .. 393 Frovhional and Managing Committees . . . . 393 Advertisements — Prospectus Contracts Try Promoters . . 394 Prospectus to state Con- tracts 394 Deposits and Siibscriptions . 394 Schem,e abortive ,. .. 394 Expenses .. . . . . 395 Agreement as to Expenses . . 395 I HAVE endeavoured iu this title to show, as clearly and concisely as possible, and under appropriate divisions and subdivisions, the provisions of the Joint Stock Companies Act of 1862 (amended 1867, 1870), the various decisions upon them, and the general rules and principles of equity applicable to such companies. In some chapters portions of the Acts of 1862 and 1867 have been cited separately and under distinct subdivisions, in others this plan has been departed from when found more convenient and considered to be more useful for reference. I have adhered generally to the leading divisions of the acts, not excluding the sub- stance of any important section, though of course, in a work of this nature, it would be impracticable to give the statutes themselves in any but an abridged form. Joint stock companies, speaking generally, are partner- Partnerships on a ships on a large scale, with this difference, that, in many if '"^' "^''• not most of them at the present day, the liability of the shareholders is limited to the amount unpaid on their shares. Joint stock companies under the Acts of 1862 and 1867 form almost exclusively the subject-matter of this title, although various cases decided with reference to other companies, and other statutes have occasionally been cited and referred to. As to promoters, whether of joint stock or other com- Promoters oi com- panies, they are not partners, and a promoter or provisional Ponies— authority committee man has no implied authority as such to bind the others. Eeynell v. Lewis, 15 M. & W. 517; Bailey v. Macauley, 13 Q. B. 815; see Scott v. Ld. Ebury, L. R., 2 C. P. 255. Members of a provisional committee, who appoint a ma- Provisional and naging committee, are not, from that act alone, liable for the ™^™King com- engagements of the latter. Williams v. Pigott, 2 Ex. 201. But advertisements or prospectuses sanctioned by a promoter Advertisementi may be of such a nature as to confer authority on his co- "an u''"^d"b*°* promoters to act for and bind him. Collingwood v. Bcr- mo^rs"" ' ''"' 394 Joint Stock Companies. Contracts by pro- moters how far binding on after- formed company. Prospectus to state contracts. Deposits and sub' sorlptions. Scheme abortive. keletj, 15 C. B., N. S. 145 ; Maddiek v. Marshall, 17 ib. 829; see Maitland's Case, 4 D., M. & G. 769. With, respect to contracts by promoters with third persons before the formation of a company, and the liability of the company to perform them, it must be considered whether the contract is ultra vires of the company, in which case it is not binding. See E. Shrewsbury v. N. Staff. R. Co., L. E., 1 Eq. 593. Questions on this subject have chiefly arisen in railway cases, though the general principle would seem applicable to companies generally. It is ultra vires of a railway company to enter into an agreement to pay a large sum of money to a person for not opposing the passing of the company's bill in parliament. Preston v. Liverpool, Sfc. Railway, 5 H. L. C. 605 ; and see Cal. R. Co. v. Helens- burgh, 2 Macq. H. L. 391. The cases of Edwards v. G. June. R. Co., 1 M. & Cr. 650; Stanley v. Chester, S^c. R. Co., 3 M. & Cr. 773; Petre V. E. C. R. Co., 1 Eail. Ca. 462, are contra, but must now be considered as overruled. See E. Shrewsbury v. N. Staff. B. Co., L. E., 1 Eq. 593. If, however, a company, after its formation, recognizes and adopts, with linowledge of all the circumstances, by conduct or otherwise, a contract not being ultra vires made by its promoters, it will in general be bound by it. Williams v. St. George's Harbour Co., 2 D. & J. 547 ; see Bedford R. Co. v. Stanley, 2 J. & H. 746, and comp. Simpson v. Ld. Howden, 9 CI. & F. 61 ; Hawkes v. E. C. B. Co., 5 H. L. C. 331 ; Scott v. Ld. Ebury, L. E., 2 C. P. 255. As to the personal liability of those who pro- fess to contract for the company, see Kelner v. Baxter, L. E., 2 C. P. 174; Scott V. Ld. Ebury, sup.; and as to the personal liability of an individual director or promoter who authorizes an agent to pledge his credit, see Riley v. Pachinqton, ib. 536. j i- By the 30 & 31 Vict. c. 131, every prospectus and notice invitins persons to subscribe for shares must specify the dates and names of parties to any contract made prior to the issue of such prospectus or notice, or such prospectus or notice will be fraudulent on the part of promoters, directors and officers knowingly issuing them, as regards a person taking shares on the faith of the prospectus without notice of the contract (s. 88). As to deviations from the prospectus, see post. Sec. 4. . If deposits or subscriptions have been paid m a company about to be formed, they may in general be recovered back at law from the promoters if the scbeme proves abortive (see Johnson y. Goslett, 3 C. B., N. S. 569 ; Morcett y-Londes- borough, 3 E. & B. 307; 4 E. & B. 7; Ashpital v. Sercombe, Act of 1862 (ametided by Act of 1867). 395 5 Ex. 147), unless by the terms of the prospectus, deed or Expenses, agreement between the parties they were to be applied in defraying the preliminary expenses. Garwood v. Ede, 1 Ex. 264 ; Vane v. Cobbold, ib. 798. It may be observed, too, that calls may be made so as to bind subscribers and share- holders, although only a small number of the shares have been taken up (Ornamental, SfC. Co. v. Brown, 2 H. & C. 63), unless there is an express or implied prohibition in the articles of association against carrying on the business of the company until the whole or a "particular part of the capital is subscribed. N. Staff. Steel, Sfc. Co. v. Ward, L. E., 3 Ex. 172. When there is an agreement between promoters or manag- Agreements as to ing directors and shareholders or subscribers, that certain ™p«"s^- expenses are to be borne by the latter, they will be liable to that extent, but not for further expenses I^Gillan v. Morrison, 1 De G. & S. 421) ; and if there has been mis- representation on the part of such promoters or directors, although the subscribers v?ill be liable to the general creditors of the company, the promoters or directors will, in equity, be primarily responsible to the extent of their liability. Carew's Case, 7 D., M. & Gr. 43. Sec. 2.— Act o/1862 {amended by Act o/1867). Preliminary .. ., 395 Commencement of Act . 395 Insurance Companies . . 396 JBanking Companies . . 396 Prohibition of Partner- ships exceeding a cer- tain number .. .. 396 Mining Companies . . 896 Constitution and Incorpora- tion of Companies— Memo- randum of Association . . 396 Mode of forming Com- pany .. . . ., 396 Seduced to less than ..396 Limited by Shares or Guarantee .. Banking Company Word " Limited" Name of Company, ^'c, ^0 Liability in Ghiarantee 396 396 396 397 397 Constitution and Incorporation of Companies, ^c. — continued. Wliere Liability un- Ivmited . . ,. 397 Cliange of Name . . 397 Capital reduced . . 397 Articles of Association .. 397 Regulations vmder . . 397 Table A. .. ..398 To be signed — Effect of Money payable by Mem^ ber a Specialty Debt . 398 General Provisions .. Registration .. Certificate .. ,. Copies of Memorandum and AHicles . . Identity of Names pro- hibited Prohibition as to cer- tain Companies hold- ing Land ,, 398 398 398 398 398 Preliminary.] The 25 & 26 Vict. c. 89 (7th August, commencement oi 1862), as amended by the 30 & 31 Vict. c. 131 (1867), is "°'- 396 Joint Stock Companies, loBurance com- panies. Banking com- panies. Prohibition of partnerships ex- ceeding a certain number. Mining companies. the act now in force for the incorporation, regulation and wmdmg-up of trading companies and other Associations: S'lQ /^'''pn f 'f ""T/ °l H '^''^'°'''' corresponds with 18% wt f 7"*- '•, ^^'^^^ ^°^^ ^^^ck Companies Act, 18o6, which It repeals. Where there have been decisions on sections of the Act of 1856, they are authorities on ?he corresponding sections of the Act of 1862. An insurance company, which carries on the business of insurance m common with any other business, is to be deemed an msurance company (s. 3). See now, as to life assurance companies established after the 9th August, 1870, the Life Assurance Companies Act, 1870, 33 & 34 Vict. c. 61 Banking companies consisting of more than ten persons must be registered under the act, unless formed under another act or by letters patent (s. 4). As to banking companies see Lmdley on Partnership, 162 et seq., and 1522, n. {a), Companies consisting of more than twenty persons, formed for the purpose of carrying on any other business (than that of banking) for gain, must be registered under the act, unless formed in pursuance of some other act or letters patent, or unless they are mining companies subject to the jurisdiction of the Stannaries (s. 4). Mining companies within the Stannaries of Devon and Cornwall are now regulated by the 32 & 33 Vict. c. 19, but nothing in that act is to extend to companies registered under any of the Joint Stock Companies Acts, except where such companies are expressly mentioned or necessarily implied. Jb.s.3. Mode of forming company. Reduced to less than seven. Limited by shares or guarantee. Banking com- panies. Word " limited." Commerce, art, &c. associations. Constitution and Incorporation of Companies — Memo- randum of Association.'] Seven or more persons may, by subscribing their names to a memorandum of association and registering, form an incorporated company, with or without limited liability. J. S. C. Act, 1862, s. 6. A form is given (Schedule 1, Table A.) for companies adopting that table. Companies reduced to less than seven members, are prohibited from carrying on business for more than six months after the number has been so reduced (s. 48). The liability may be limited by shares or guarantee (s. 7). But with regard to banking companies claiming to issue notes in the United Kingdom, the liability in respect thereof is unlimited (s. 182). In cases of share and guarantee limited companies, the word limited is to be the last word in the name of the com- pany (ss. 8, (1) 9, (1) ). By the Act of 1867 (30 & 31 Vict. c. 131 ), limited associations for promoting commerce, art, science, religion or charity, or any other useful object, where Constitution and Incorporation of Companies. 397 no dividends are payable, but tiie profits, if any, are to be applied in promoting tbeir objects, may witb the sanction of one of the secretaries of the Board of Trade be registered without the word " limited" (s. 23). The memorandum of as- Name oj company, sociation must state the name and objects of the company, *'°-' *'°- that the liability is limited, and where the registered office is to be ; and in the case of share limited companies, the capital, amount and number of shares. Each subscriber is to write opposite his name the number of shares he takes, being one at least. Act of 1862, ss. 8, 9, 14 ; see East Glouc. R. Co. V. Bartholomew, 37 L. J., Ex. 17. In the case of guarantee limited companies, there is a Liability in gua- declaration that each member undertakes to contribute a rantee companies. specified amount in the event of the company being wound up. lb. s. 9; Forms B. and C., Sched. 2. If the liability Where Uabuity is unlimited, the memorandum of association must state the ""^'°"'"'- name and objects of the company, and where its registered office is to be (s. 10). Form D., Sched. 2. A share limited company may, if duly authorized by its regulations or by special resolution, increase or consolidate its capital or con- Capital, vert shares into stock ; but cannot otherwise alter the con- ditions contained in the memorandum of association, except as mentioned in the next section (s. 1 2). A company may, if so change of name. authorized by special resolution and by the Board of Trade, change its name (s. 13). The change is not complete until the new name is entered on the register, and a certificate of incorporation issued. Shackleford, 8fC. Co. v. Owen, L. R., 3 C. P. 407; see as to calls and actions in such cases, ib. By the Act of 1867, a share limited company may reduce "Reaacea." its capital by special resolution sanctioned by order of the court, which is to be registered (ss. 9, 11, 15, 16, 18). Such a company must add the words " and reduced " to its name for the period fixed by the court (ib. s. 10) ; three months from the final order is a proper period. lie Estate Co., L. R., 5 Ch. 407; see Credit Fonder of England, L. R., 11 Eq. 356. The court means the court having jurisdiction to make winding-up orders under ss. 81 and 83 of the Act of 1862 (Act of 1867, s. 12); and see ib. s. 20 as to making rules. Creditors may object to the reduction {ib. s. 19). The court may dispense with the consent of creditors on the company securing their debts {ib. s. 14). The rights of cre- ditors who are ignorant of the proceedings are saved {ib. s. 17). The capital of a company may be divided into shares of a smaller amount than that fixed by its memorandum of association {ib. ss. 21, 22). Articles of Association.] The memorandum of associa- Regulations unaet. 398 Joint Stock Companies, Table A. To be signed — effect of. Money payable by member a specialty debt. Eegistration. Certificate. Copies of memo- randum and articles. Identity of names probibited. Problbltlon as to certain companies holding land. i^ tV,roLi f 'fvf^'' °^ '^^•■' """^'^"^ companies, and must Wl W °f °'^«'-/°'^P^nies, be accompanied when regis- tered by articles of association prescribing regulations for Table A. m the 1st Schedule, and if the capital is divided into shares, shal state the amount of capital, and if not, the number of members with which it is proposed to register • and m guarantee limited or unlimited companies, having a share capital, each subscriber shall take at least one share' ?Q«o^"'f.?PP°r^!'^ ^'^ "™^ ^^^ """^ber he takes (Act of i»bA s. 14). The provisions in Table A. apply to aU share limited companies, unless excluded by their articles of asso- ciation (if any), and so far as applicable have the same effect as it they had been inserted in registered articles of associa- tion (s. 15). _ The articles of association are to be printed, stamped and signed by each subscriber, and when registered operate as a covenant by each member to conform to the articles, subject to the provisions of the act. Any money payable by a member to the company in pursuance of its regulations, is a specialty debt (s. 16). General Provisions.] The memorandum and articles of association are to be registered (s. 17). After registration the registrar is to give a certificate of incorporation, and, in the case of a limited company, that the company is limited. The subscribers and subsequent mem- bers form a body corporate having perpetual succession and a common seal, and with power to hold lands. The certi- ficate is conclusive, that all requisites of the act as to regis- tration have been complied with (s. 18). See Oakes y.Tur- quand, L. E., 2 H. L. 325 ; Peel's Case, L. R., 2 Ch. 674. There are similar provisions as to companies existing at the date of the passing of the act and registering under it (s. 191). Copies of the memorandum of association and articles (if any) are to be given to members on payment of not more than one shilling (s. 19). The registration of a company under a name substantially the same as that of another registered company is prohibited (s. 20). The sanction of the Board of Trade is required to enable companies for promoting art, science, religion, charity or other like object, and not for gain, to hold more than two acres of land (s. 21, Sched. 2, Form (F)). Application for Shares — Allotment. ' 399 Sec. 3. — Application for Shares — Allotment. Wlio may apply .. .. 399 As to Infants — Married Women 399 Other Companies . . . . 399 Application withdrawn be- fore Acceptance . . .. 399 Allotment and Notice of . . 399 Payment of Deposit . . 399 Executors of Deceased Shareholder . . . . 400 Delegation of Power . , 400 Certainty of Contract as to Numier of Shares . . 400 Unconditional Acceptance . 400 Conditional or Collateral Agreement .. .. 401 Allottee not bound hut deal- ing with Shares .. . . 401 Specific Performance of Agreement to take Sha/res 401 Qualification Shares ■. . 401 Scrip . . . . .. ,. 402 As a general rule, any person capable of entering into a who may apply, contract may be a shareholder. An infant who applies for infanta, shares which are allotted to him, will be hound by his ac- quiescence after his majority (in the case cited, for fourteen months afterwards) and be liable as a contributory. Ebbett's Case, L. R., 5 Ch. 302 ; and see Chapters III. and V., post. A married woman may hold shares, post, Chap. V., and see Married woman. ante, p. 341. A limited company may hold shares in another company other companies, if authorized by its own memorandum and articles of asso- ciation to do so. Ex parte Contract Corporation, L. R., 3 Ch. 105 ; Re Asiatic, Sfc. Corporation, L. R., 4 Ch. 252. An application for shares may.be withdrawn before the Application with- acceptance of it. Ramsgate, ^c. Co. v. Goldsmid ; Same ^^^ce!" V. Montefiore, L. R., 1 Ex. 109 ; see Chapman' s Case, L. R., 2 Eq. 567. This acceptance is evidenced by an allotment. Allotment and and on allotment and notice of it to the allottee the company """'^^ "'• and applicant are bound. Pellatfs Case, L. R., 2 Ch. 527; Sahlgreen 8^ CarralVs Case, L. R., 3 Ch. 323. In general there is no binding contract before, and Bloxham's Case (33 Bea. 529; 33 L. J., Ch. 574), in which the applicant was held to be bound before notice of the allotment, is referable to its special circumstances. PellattsCase,sup.; ExparteGunn, L. R., 3 Ch. 40; Ex parte Hebb, L. R., 4 Eq. 9; Wallis's Case, L. R., 4 Ch. 325 (n.) ; Robinson's Case, ib. 330; Pen- telow's Case, ib. 178; (Vard's Case, L. R., 10 Eq. 659. Merely posting a letter of allotment is not a sufficient ac- ceptance, the court being satisfied that it was not received. Reidpath's Case, L. R., 1 1 Eq. 86 ; comp. Ebbett's Case, L. R., 5 Ch. 302 ; Br. SfC. Tel. Co. v. Colson, L. R., 6 Ex. 108; see, in the case of notices, &c. to a company, Act of 1862, ss. 62, 63. Mere payment of a deposit on the one Paj-mentoi side, and giving a receipt for it on the other, is not equiva- ^^posit. lent to an allotment. Best's Case, 2 D., J. & S. 650 ; see 400 Joint Stock Companies. Exeontois of deceased share' holder. L. R 1 Ex. 109; and comp. Fletcher's Case 37 L T n, 49 See as to shares oi directors, post p 401 LJn^S I on A. If assented to. In this case A. was placed on the re fiaht "l^. ""r*^!*^ "."'^^'^"g ^' ^ director, and he was held liable although a dmdend was credited to B. in the company's books. Levita's Case, L. R., 3 Ch. 36. Where the nro ^pectus fixes a time for allotting shares, stating that the cC IS not bound by an allotment considerably after the time named Be Bowron, Baily S, Co., L. R., 3 Ch. 592. Tor the allotment must be made within a reasonable time ^"TT^'Jcf- w.^- (^"Idsmid; Same v. Montefiore, L. K., 1 lix. 109. Where additional shares were offered to the executors of A., a deceased shareholder, and the agent of one of the executors who received the dividends for the executors applied in his own name for them, but they were allotted to the executors, although the agent wrote acknow- ledging the allotment as if made to himself and promising to pay, it was held that there was no contract between the agent and the company. Ex parte Mallorie, L. R., 2 Ch. 181. Executors of a shareholder who accept shares offered to the old shareholders are personally liable in respect of them. Fearnside and Dean's Case; Dobson's Case, L.R., 1 Ch. 231. Directors cannot, as a rule, delegate their power of allotting shares to some of their body. Howard's Case, Certainty of con- L. R., 1 Ch. 561. The Contract must be certain as to the o^i^es!""""""' number of shares to be taken. If, on the one hand, there is merely an offer to accept an uncertain number of shares, e. g., fifty or more, and on the other an allotment of one hundred, with a request to know how many the applicant would take, there is no binding contract in respect of any number. CarraicAaeZ's Ca«e, 17 Sim. 163. The acceptance of an application for shares, like that of any other offer, must introduce no new term. Thus a person who applies for a certain number of shares not agreeing to accept any less number, is not bound by an allotment of a less number (see Boberts' Case, 1 Drew. 204), or the same number, but subject to conditions. Duke v. Andrews, 2 Ex. 290 ; see Hutton Y. Upfill, 2 H. Li. C. 674. Where there is an ex- tension of time by the directors for payment of deposits or instalments, this will not entitle an allottee of shares to re- pudiate his contract to take shares, unless there is a mis- representation in the prospectus. See Pentelow's Case, Delegation of power. Unconditional acceptance. Application for Shares — Allotment. 401 L. R., 4 Ch. 178 ; Peek's Case, ib. 532 ; Jackson v. Tur- quand, L. E., 4 H. L. 305. Where a stipulation is made by an applicant for shares, conditional agree- and the stipulation is a condition precedent, he is not liable ""^'"' as a contributory, if the condition be not performed. Aus- tin's Case, L. R., 2 Eq. 435 ; Shackleford' s Case, L. R., 1 Ch. 567; Pellatt's Case, L. R., 2 Ch. 527; Rogers' Case, Harrison's Case, L. R., 8 Ch. 633; Simpson's Case, L. R., 4 Ch. 184. But the condition must be annexed to or form Collateral agree- part of the contract to take the shares, and not in the nature ™^'''' of a collateral agreement, or the liability will attach. El- hington's Case, L. R., 2 Ch. 511; Bridger's Case, L. R., 5 Ch. 305; and see Bunn's Case, 2 D., F. & J. 275. A shareholder of company A., who agrees to take shares in company B., conditionally upon both being amalgamated, is not liable as a shareholder of B. in the event of the amal- gamation not taking place. Alabaster's Case, L. R., 7 Eq. 273; see Hare's Case, L. R., 4 Ch. 503. Where the agree- ment for amalgamation was of doubtful validity, a share- holder in the old company, who acknowledged the receipt of certificates for shares in the new one, was held to be liable as a shareholder in the latter, but not a shareholder who simply took no notice of the communication announcing that he was entitled to shares. Challis's Case, Somerville's Case, L. R., 6 Ch. 266. An irregularity in the allotment of the shares will be Aiiottee not bound cured, and the allottee will be liable if he subsequently deal scares!'''"*' ^'"'''' with them ; for instance, by executing a transfer. Craw- ley's Case, L. R., 4 Ch. 322. The preceding decisions with reference to the contract between the applicant and company being complete and binding, have for the most part arisen on the winding up of a company, but they are equally appli- cable to other cases which may arise; for instance, in actions for calls. An agreement by a company to allot shares, or by specific perform- an applicant to take them will be specifically enforced, but it totakeS™"'" must be a concluded agreement. Oriental Steam Co. v. Briggs, 2 J. & H. 625; Cheale v. Kenward, 3 D. & J. 27. In Sheffield Gas, ^c. Co. v. Harrison, 17 Bea. 294, how- ever, the court refused to compel an allottee of shares to accept them and to execute the company's deed of settle- ment. But as to this case, see New Brunswick, SfC. Co. v. Muggeridge, 4 Drew. 686, 701. Where by the memorandum of association or deed of settle- Qualification and ment a director is required to hold a certain number of shares, ojJ"simresoi this applies to the directors who are elected by the subscribers or shareholders, but not or not in general to those who are w. D D 402 Joint Stock Companies. nominated in the articles of association. Roney's Case, 10 Jur., X. S. 812 ; see the judgment of Tmner, L. J., p. 814; comp. Curriers Case, 11 W. E. 13. In the Marquis of Abereorn's Case (4 D., F. & J. 78), the holding of a particular amount of stock was a necessary qualification for a director. The marquis, who did not know this, applied to be elected and was elected a director, and more than the amount of qualification stock was credited to him in the books of the company, and he was debited with the price of it. He never knew this; never held any of the stock, and never acted as a director ; and it was held, that he was not liable as a contributory. See £x parte Eve, 37 L. J., Ch. 844. Even where a person acts as a director and applies for shares, he will not be liable for shares not allotted to him, and in respect of which there is no contract between him and the company ( TothilTs Case, L. R., 1 Ch. 85) ; secus, if though not allotted, he signs the articles of association in respect of them (lb. ; Evans' Case, L. R., 2 Ch. 427), or is put on the register in respect of them, being advertised also as a director and attending a meeting in that capacity. Le- vita's Case, L. R., 3 Ch. 36; see Re Disderi, L. E., 11 Eq. 242. Scrip. In some companies letters of allotment are exchanged for scrip or scrip certificates stating that the allottee, or some- times the holder, is entitled to a certain number of shares. Littlehampton Steam, ^c. Co., 2 D., J. & S. 521; Orme- rod's Case, L. R., 5 Eq. 110. Scripholders are not share- holders in the strict sense of the term, though they will be contributories, if registered in respect of the shares, but not otherwise. A.; Ex parte Aston, 4 D. & J. 320; Ex parte Grisewood and Smith, ib. 544; see Weston's Case, L. R., 5 Ch. 614. S£C. 4. — Deviation from Prospectus — Misrepresenta- tions in. Of tTie JProspectus genially 403 ! Misrepresentation, in Pro- )\'7iat shmild be stated . 403 sjiectus 404 Contracts .. . . 403 I Effect in general . . 404 Prospectus referring to Deviation from Prospectus . 403 | Articles .. .. 404 AstoBusinesstobecar- Innocent Mistake .. 404 rieil on . . ■ . 403 Where Promoter autho- rized to obtain, Act or Charter .. ..403 Alteration in Articles 403 Representations as to Directors . . . . 404 Adrantages — Value .. 405 SS'on-disclosure of Pri- vate A rrangements . . 405 Deviation from lirospeetus. 403 Misrepresentation in Pro- spectus — continued. As to recovery of Deposit 405 False representation , . 405 Repudiation of Shares . . 405 S/iovld te prompt . . 405 Repudiation of Shares — contd. Shareholder should not pay Calls or receive Dividends .. .. 405 Nor deal in Shares . . 406 Agreement to abide iy result of Suit . . 406 Of the Prospectus generally.^ The prospectus states in ivhat shouia te general the particulars relating to the company, the nature °'*'^'*- of the undertaking, number and amount of shares, and names of the parties connected with it. It is almost superfluous to observe that such a document, on the faith of which shares are usually taken, should be very accurate, and that there should be no misrepresentation and no concealment which may be equivalent to misrepresentation. As to the contracts, omission to state contracts, see ante, p. 394. Deviation from Prospectus.^ As a very general rule a person who applies for shares in a company on the faith of a prospectus is not bound by an allotment, if the terms of the prospectus be afterwards materially departed from on the formation of the company. Downes v. Ship, L. R., 3 H. L. 343. As where, according to the prospectus, the un- Business, dertaking is to carry on a general banking business, the com- pany being established for that and the construction of rail- ways and other works. Ih.; and see Stewart's Case, L. R., 1 Ch. 574: Webster's Case, L. R., 2 Eq. 741. But sub- Where promoters .1 , jii- 7-i-*ijj!j.i, -J authorized to ob- scribers to an undertakmg which is intended to be carried tain actor charter. out by means of an act of parliament or charter, who give the promoters powers which expressly or impliedly authorize a deviation from the strict terms of the prospectus, will be bound if the act be accordingly obtained for other or more extensive purposes than those originally contemplated. See Nixon V. Brownlow, 3 H. & N. 686; Norman v. Mitchell, 5 D., M. & G. 648. And an alteration in the articles of Alteration in association between the application for shares and allotment "'''^'^• wUl not invalidate the contract where the alteration is made under the authority of the Act of 1862, the objects of the company not being altered. Lyon's Case, 35 Bea. 646. As to alterations in articles by means of new or false sheets, see Ee Richards, 4 K. & J. 305; Re Felgate, 2 D., J. & S. 456. A person may also by his own acts be precluded from Acquiescence. objecting, upon the ground of deviation (see Tredwen v. Bourne, 6 M. & W. 461 ; Longworth's Executors Case, 1 D., F. & J. 17), or by his delay in applying to be relieved. See post, p. 405. D d2 404 Joint Stock Companies, Effect iu general. Capital, shares, &c. Prospectus refer- ring to articles. Innocent mistake. Kepresentatlon as to directors. Misrepresentation in Prospectus.] An applicant for shares will not in general be bound to take them, or be bound as a shareholder if he has taken them, where there IS a misrepresentation or concealment of material facts or circumstances in the prospectus. The same rules as to false or deceptive representations which are applicable to con- tracts between individuals are also applicable to contracts between an individual and a company. And where there has been fraudulent misrepresentation or wilful concealment of facts by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it that he might have known the truth by proper inquiry. Venezuela R. Co. v. Kisch, L. B., 2 H. L. 99. There is no binding contract in respect of shares where there is an untrue statement in the prospectus that the directors and their friends have subscribed a large portion of the capital {Henderson t. Lacon, L. E., 5 Eq. 249), or as to the amount of the capital or purchase-money of the business of the company {I^ent y. Freehold, ^c. Co., L. R., 4 Eq. 588; reversed, L. E., 3 Ch. 493, but upon the ground that the application was after a petition for winding up, see post, p. 406). But if a prospectus refer to articles which materially extend the objects of the company as stated in the prospectus, an applicant for shares is bound by the articles. Briffg's Case, 35 Bea. 273. So if an ambiguous statement in the prospectus is corrected in the articles which are referred to. Hallows v. Fernie, L. R., 3 Ch. 467. And although there may be no reference to articles, a per- son will not in every case be entitled to repudiate shares merely because there is a mistake in the prospectus. In one case in which the prospectus alleged erroneously, but through an innocent mistake, tliat a contract with a colonial govern- ment had been entered into, an applicant for shares on the faith of the prospectus was nevertheless held bound at law. Kennedy v. Panama, ^c. Co., L. E., 2 Q. B. 580. The de- cisions in equity, however, would seem to lead to the con- clusion that, if a person has been induced to take shares solely or principally in consequence of the statement in the prospectus that a particular contract has been entered into, he will not be bound if the statement prove to be untrue, however innocent the representation might be. Consider New Brunswick, S^c. Co. v. Muggeridge, 1 Dr. & Sm. 363; Henderson y. Lacon, ~L. E., 5 Eq. 249—262; Venezuela R. Co. v. Kisch, L. E., 2 H. L. 39 ; and Ross v. Estates, SfC. Co., L. E., 3 Ch. 682, particularly the third point. The mere announcement of certain persons as directors, who decline to act, is not a ground for discharging a share- Repudiation of Shares. 405 holder {Hallows v. Fernie, L. R., 3 Ch. 467); nor is the Aa to^advantnges mere fact that the prospectus contains exaggerated state- ments of the advantages to be derived by the company, or of the value of property which they are about to purchase {Denton y. Macneil, L. R., 2 Eq. 352; Smith v. Reese River Co., 4 H. L. 64'!; or that the prospectus does not uon-aisciosuve of state certain arrangements between promoters and others to ""uj^^^rsons^o induce the latter to become directors, or to assist in the become cureotors. bringing out of the company. Heymann v. European, ^c. Co., L. R., 7 Eq. 154; comp. Ex parte Williams, L. R., 2 Eq. 216, in which case the non-disclosure in articles of asso- ciation of an arrangement between promoters and directors was held to release shareholders from claims of the promoters; and see Ex parte Preston, 37 L. J., Ch. 618; also the Act of 1867, s. 38, ante, p. 394. In cases of this description it has been held that, although Kecoyeryof a person may be entitled to be removed from the list of share- ^''°^' ' holders upon the ground of a material variation between the articles of association and prospectus, there being an excess in the objects of the former over those stated in the latter, he cannot maintain a suit for the recovery of the deposit which he has paid, his remedy being at law against the company. Stewart v. Austin, L. R., 3 Eq. 299; Ship v. Crosskill, L. R., 10 Eq. 73, 83. But otherwise if the direc- raise represen- tors make a false representation, knowing it to be false ; but '"'™- it must be a material representation. Henderson v. Lacon, L. R., 5 Eq. 249 ; see L. R., 10 Eq. 84 ; Hill v. Lane, L. R., 11 Eq. 215; comp. Ogilvie v. Currie, 37 L. J., Ch. 541. Repudiation of Shares.^ Where there is a right to re- should be prompt. pudiate shares, the repudiation should be prompt after know- ledge of the circumstances giving such right of repudiation, or after such notice of them as should have led to an inquiry respecting them. Lawrence' s Case, JCincaid's Case, L. R., 2 Ch. 412 ; Taite's Case, L. R., 3 Eq. 795 ; Whitehouse's Case, ib. 790; Heymann v. European, S^c. Co., L. R., 7 Eq. 154. But there must, in general, be such knowledge or no- Knowledge. tice. Steioarfs Case, 1 Ch. 574; Webster's Case, 2 Eq. 741; notice. and se& Langham, v. East Wheal, SfC. Co., 37 L. J., Ch. 253. And where there has been fraudulent misrepresentation or wilful concealment, an omission to examine documents which were referred to in a prospectus, and which would have disclosed the truth, does not disentitle a person to be relieved from a contract made on the faith of the prospectus. Venezuela R. Co. v. Kisch, L. R., 2 H. L. 99. A person who is entitled to rescind a contract on the shareholder ground of misrepresentation should not pay calls or receive LUs or receive dividends i 406 Joint Stock Companies. or deal In sliarcs. Aijreement to nbide by result of suit. dividends {Scholey v. Venezuela R. Co., L. R., 9 Eq. 266, n. (3) ; see a plea of fraud to an action for calls, Bwlch, SfC. Co. V. Baynes, L. R., 2 Ex. 324), and should not attempt to deal with shares taken on the faith of such misrepresenta- tion being correct. Brigg's Case, L. R., 1 Eq. 483. And if he has been induced to take shares through the misrepre- sentation of the company, but has not repudiated, or taken legal proceedings to repudiate them at the time of the wind- ing up of the company, he will be liable as a contributory {Oakes V. Turquand, L. R., 2 H. L. 325; Kent v. Freehold Land, ^c. Co., L. R., 3 Ch. 493; Smith v. Reese River Co., L. R., 4 H. L. 64), though this principle does not extend to the case of shareholders who by arrangement allow one of their number to try by a suit (which is ultimately decided in his favour) the question of their right to repudiate their shares, the company agreeing that they shall not be preju- diced by not taking proceedings pending that suit. Pawles' Case, L. R., 4 Ch. 497 ; comp. Harems Case, ib. 503. In the absence of an express agreement between the company and a shareholder in such a case, the latter must give notice to the company that he is a dissentient shareholder, and intends to claim the benefit of the decision in the suit. Ashley's Case, L. R., 9 Eq. 263; comp. M'Niell's Case, L. R., 10 Eq. 503. CHAPTER II. DISTRIBUTION OP CAPITAL — REGISTRATION — LIABILITY or MEMBERS. Sec. 1. — Provisions of Acts of 1862, 1867, and Matters connected with the Register. Shares Personal Estate . . 406 Some may he fully paid up, others not . • ., .. 406 Members . . .. .. 407 Transfer iy Representatives 407 Ilegister of Members . . 407 Annual Lists .. . . 407 Conversion of Capital into Stock 407 Warrants .. .. . . 407 No Trusts to ie entered . . 407 Certificates . . . . . . 408 Inspection of Ilegister . . 408 Closing Register .. .. 408 Notice of Increase of Capital 408 Rectification of Register . . 408 Informalities . . .. 408 Company's Irregularity . . 409 Shares personal estate. Shares are personal estate, capable of being transferred in the manner provided for by the regulations of the company, and in share-limited companies must be numbered (Act of Some may be luiiy 1862, s. 22). By the Act of 1867, a company, if authorized Distribution of Capital, S^c. 407 by its regulations may have some shares fully paid up, others piw up, others not, and pay dividend accordingly (s. 24). ^°^' All shares are to be taken, as issued and held, subject to the payment of the whole amount in cash, unless there is a written contract to the contrary filed with the registrar {lb. s. 25). See Stace and Worth! s Case, L. E., 4 Ch. 682. Persons, by subscribing to the memorandum of associa- Members. tion, agree to become members, and on registration are to be entered as members on the register of members, and every other person who has agreed to become a member, and is registered, shall be deemed to be a member. Act of 1 862, s. 23 ; see post. Chap. V., Sec. 2. The personal representatives of a deceased member may Transfer by ti-ansfer his shares as if they had been members (s. 24). representatives. Registers of members are to be kept, showing the names, Register of mem- addresses and occupations of members, the shares in share '"'"■ companies held by each, and the amount paid or to be con- sidered as paid thereon, and the dates when persons were entered as, or ceased to be, members (s. 25). Companies having their capital divided into shares are to Annual lists. make annually, at least, a list of present members, and of those who had ceased to be such since the last list, and their occupations, addresses and shares, together with a summary specifying the amount of capital and number of shares, shares taken and forfeited, the amount of calls made, received and unpaid. This list and summary are to be contained in a separate part of the register. A copy is to be forwarded to the registrar of joint-stock companies (s. 26), under a penalty not exceeding 5Z. for every day of default (s. 27). The com- Conversion of pany is to give notice to the registrar of consolidation or **'"*' '"'° *'°*- conversion of capital into stock (s. 28). On conversion the provisions applicable to shares are to cease, but the returns are to show particulars of stock and stockholders (s. 29). By the Act of 1867 (30 & 31 Vict. c. 131), where shares are warrants, fully paid up or stock is held in share-limited companies, warrants may be issued stating that the bearer is entitled to the shares or stock therein specified (s. 27). Such shares or stock may be transferred by delivery of warrant {ib. s. 28), and the bearer of a warrant may, on surrendering it for can- cellation, be entered in the register of members {ib. s. 29) ; or the bearer may, if the regulations of the company so pro- vide, be deemed a member, but not a director or manager {ib. s. 30). Sections 31 to 36 of this act contain provisions, con- sequent on the issue of share warrants, relating to entries on the register, annual summaries, stamps on warrants, forgery of warrants and personation of owners of shares, and impro- perly engraving plates of share warrants. Notices of trusts No trusts to bo 40S Joint Stock Companies. Trustee and cestai que trust. Transferee must consent to transfer. Inspection of register. Closing register. Notice of increase of capital. Kectiflcation of register. Neglect of mere formalities, in general imma- terial. are not to be received or entered in the register (Act of 1862, s. 30). A shareholder who holds shares as trustee is liable, like any other shareholder [Jloare's Case, 2 J. & H. 229 ; Chapman and Barker's Case, L. R., 3 Eq. 361 ; see Cragg V. Taylor, L. R., 1 Ex. 148), but not his cestui que trust. Brigg's Case, 2 Dr. & S. 452. And a person who, for pur- poses of his own, in order to evade liability or to deceive the public, transfers sliares into the names of third persons, will be liable in respect of such shares. Hyam'sCase, 1 D., F. & J. 75; Cox's Case, 9 Jur., N. S. 1184; comp. Ex parte Bugg, 2 Dr. & Sm. 452; and King's Case, L. R., 6 Ch. 196. To make a person liable as a transferee he must be a consenting party to the transaction by which he has been put on the register. Hennesey's Executors Case, 2 Mac. & G. 201. As to the rights and liabilities of a person who is a share- holder in one company, but as trustee only for another com- pany, both companies being in liquidation, see lie National Financial Co., L. R., 3 Ch. 791. Certificates of shares or stock are prima facie evidence of title (s. 31). Registers of members are to be kept at the company's office, to be open to the inspection of members gratis, and other persons on payment of not more than one shilling, and copies to be given on payment for same (s. 32). Registers may be closed for not more than thirty days (s. 33). In share companies notice of increase of capital and of mem- bers is to be given to the registrar (s. 34). In case of any improper entry of any name on or omission thereof from the register, it may be rectified by order of the proper court or judge (ss. 35, 36). In JVard and Henry's Case (L. R., 2 Ch. 431), Turner, L. J., considered that the jurisdiction given by this section was general. Cairns, L. J., on the other hand, considered that it was confined to cases where there was default on the part of the com- pany. In Ex parte Ward (L. R., 3 Ex. 180), it was held that the power to remove a name was confined to two cases, first, that of the name having been improperly entered ; secondly, that of a shareholder ceasing to be a member. See Eontifex's Case, 36 L. J., Ch. 903; White's Case, 15 W. R. 7o4. Registers of members are prima facie evidence of matters directed or authorized by the act to be inserted therein (s. 37). See ante, p. 407, ss. 25, 26. Although the mere formal regulations of a company have not been strictly carried out, a shareholder, who has been treated as such by the company, will in general be entitled to the same rights, and be subject to the same liabilities, as if such formalities had been complied with. Burnes v. Pennell, 2 H. L. C. 497. Thus, if the transfer of shares Extent of Liability of Shareholders. 409 be iu some respects informal, but the transferee is registered, or claims to be registered, as a shareholder, he cannot in an action for calls deny the validity of the transfer. Chelten- :ham R. Co. v. Daniel, 2 Q. B. 281 ; see Hull, SfC. Co. v. Wellesley, 6 H. & N. 38. (These cases are not under the Act of 1862.) On the other hand, where persons have been treated by the company as having ceased to iDe members, some mere informality, for instance, in the transfer of the shares, cannot afterwards be set up against them as a ground of con- tinuing liability. Grady's Case, 1 D., J. & S. 488; Lane's Case, ib. 504. And, as a very general rule, a company company's own cannot take advantage of an irregularity which is the act of Regularity. one of its own officials. Bar gate v. Shortridge, 5 H. L. C. 297. Sec. 2. — Extent of Liability of Shareholders. Xlaincorporated Companies . 409 Liaiility of Directors and Limitation hy Contract ..409 ST'' . .""^ . .*' T 409 Acts of 1862, 1867 . . . . 409 Transferees of Shares . . 410 Members of unincorporated companies, whose liability is Members of unin- not restricted by some statutory provision, are, like ordi- pa^es*''"' "'°' nary partners, liable to the utmost extent of their property for the debts of the concern. See Caslen v. Drury, 1 V. & B. 157; Greenwood's Case, 3 D., M. & G-. 459; Re Robin- son's Executors, 6 D., M. & Gr. 572. But incorporated where limited \>y companies may by contract limit the liability of their mem- ™o'™=t- bers, irrespective of the Limited Liability Acts of 1856; 1857 and 1862. See Halket v. Merchant Traders' Asso- ciation, 13 Q. B. 960; Durham's Case, 4 K. & J. 517; Re Anglo- Calif or nian, 6;c. Co., 37 L. J., Ch. 78. And this right is expressly recognized by the Act of 1862, s. 38(6). But it is subject iu equity to the payment of the amount still unpaid on their shares. Evans v. Coventry, 8 D., M. & Gr. 835. The liability of shareholders of share or guarantee under Acta of 1863 limited companies under the Act of 1862 is limited to the """H^e?. amount of such shares or guarantee (s. 38) (4), (5). By the Act of 1867 (30 & 31 Vict. c. 131), however, com- Liability of dircc- panies may be formed with unlimited liability as regards may'bcfaui'tmited* the directors or managers (s. 4). Notice must be given to directors on their election that their liability will be un- limited. Ib. s. 7. Existing companies may, by special re- solution, make the liability of directors and managers un- limited. Ib. s. 8. As to the extent to which they are liable to contribute, see ■post, Chap. V. 410 Joint Stock Companies. Transferees liable for past debts. Shareholders in joint stock companies, becoming such by transfer of shares, are liable in respect of the past debts and liabilities of the company which may be unpaid at the. time of the winding up. See Act of 1862, s. 38. See also Cape's Executors Case, 2 D., M. & G. 562 ; Mayhew's Case, 5 D., M. & G. 837; Henderson v. Sanderson, 3 H. L.C.698. And transferors, after the transfer, are liable as past mem- bers for one year after they ceased to be members if the winding up commences within the year (s. 38 (1) ), but not in respect of debts contracted after they ceased to be mem- bers (lb. (2) ), nor unless the existing members are unable to satisfy the contributions required. lb. (3). See post, Chap. V. CHAPTEE III. SALE, TRANSFER, STJEEENDEB AND FORPEITCEE OF SHARES. Where no restriction. ■\Vliere consent of directors neces- sary. Sale and Transfer of Shares Where no restriction . . Consent of Directors • . Purchaser to register . . Purchaser hound hy Broker's Contract . . Custom of StocTt Ex- change Transfer not approved iefore minding up . . Neglect or delay of Di- rectors to register . . Forged Transfer Transfers to Infants . . Calls unpaid . . Contract to transfer . . Mode of Transfer .. On Death— Executors . Specific Legatee 410 410 410 411 411 411 412 412 413 413 414 414 414 414 414 Mode of. Transfer — continued. Rights acquired on Transfer .. ..414 Liahilities after . , 415 Transfer to evade Zia- .. ..415 Surrender or Transfer of Shares to Company or Di- rectors . . . . ..415 To Company .. .. 415 Transfer to Directors on compromise . . . . 416 Forfeiture of Shares . . 416 Notice of intention to forfeit .. ..416 Improperly declared . . 416 Contribution as past Members Collusion Bankruptcy of Share- holder 41T 416 417 Sale and Transfer of Shares.^ Where no restriction is imposed by the deed of settlement or agreement between the shareholders, there is no restriction on the right of the latter to transfer their shares. Weston's Case, L. R., 4 Ch. 20. Where the consent of the. directors to the transfer is neces- sary, it must not be unfairly withheld (see Robinson v. Chartered Bank of India, L. R., 1 Eq. 32); though, on the other hand, a court of equity will not interfere to compel them to give it, if they have acted bonajide in refusing it. Bermingham v. Sheridan, 33 Bea. 660 ; see Taft v. Har- Sale and Trcfiisfer of Shares. 411 rison, 10 Ha. 489. It may be doubtful -whether the duty who to procure of obtaining the consent of the directors to a transfer, where ''°"^^°''- such consent is necessary, devolves upon the vendor or pur- chaser on an ordinary sale of shares. See Wilkinson v. Lloyd, 7 Q. B. 27; Biederman v. Stone, L. R., 2 C. P. 504. But where the case is governed by the usages of the Stock Exchange, the vendor is not bound to procure such consent. Strong v. Russell, 1 E. & E. 888, 916. , It is the duty of the purchaser to execute the traasfers Porchaserto and procure them to be registered in his name, and if not '«Kist«r. registered, he will in general be liable to the vendor in equity for the consequences of non-registration, if it is owing to his neglect that the vendor has been made a con- tributory. This is clearly the rule as between an ordinary vendor and purchaser, there being no intervening jobber, for then the vendor can require the purchaser to accept and register a transfer in his own name. Coles v. Bristowe, L. E., 4 Ch. 3, 10 ; see Maxted v. Paine, L. R., 6 Ex. 132. And where the sale is through the medium of brokers or Purchaser bonnd jobbers, a purchaser cannot allege that tliere is no privity t^^t™''*'^* °™" between him and the vendor, upon the ground that the one sells and the other buys through brokers or jobbers. Evans V. fVood, L. E., 5 Eq. 9 ; Shepherd v. Gillespie, L. R., 3 Ch. 764 ; Hawkins v. Maltby, L. R., 3 Ch. 188 ; S. C, 4 Ch. 200. And if in such cases the real purchaser procures the shares to be executed to a mere nominee of his own, he will still continue liable to the vendor for the consequences of non-registration, and of the shares still standing in the ven- dor's name. Castellan v. Hobson, L. R., 10 Eq. 47. If, how- Laches by vendc ever, there has been laches on the part of the vendor, and delay in taking steps to see that the transfer has been regis- tered, whatever his remedy may be against his purchaser, he will as a rule be liable as a contributory if his name is on the register at the time of the winding up. See Head's Case, White's Case, L. R., 3 Eq. 84 ; Walker's Case, L. R., 6 Eq. 30. A shareholder vendor has now the right to Vendor maj re- require registration of a transfer. For it is provided by i""' regtatratioi the Act of 1867 that on the sale of shares by a shareholder the transfer shall be registered at request of the trans- feror, as well as of the transferee (s. 26). A broker who buys shares, and is compelled, according to custom of stock the rules of the Stock Exchange, to pay for them, may recover Exchange. over against his principal (the purchaser) though the latter, in consequence of a winding-up petition, derives no benefit from the purchaser. Chapman v. Shepherd, Whitehead v. Izod, L. R., 2 C. P. 228. By the usage of the Stock Exchange, which is held to be a reasonable usage, in transactions be- tween members of it, there is an implied understanding, that. 412 Joint Stock Companies. Ordinary s Sale with registra- tion guaranteed. Transfers not ap- proved before "Winding up. Neglect or delay of directors to regis- ter. Discretionary power of directors aa to transfera. in the purchase of stock and shares, the buying jobber shall be at liberty by a given day, called the " name day," to sub- stitute, or give the name of another person as buyer, and so relieve himself from further liability on the contract ; pro- vided such other person be one to -whom the original seller cannot reasonably except, and that such person accept a transfer of the stock or shares and pay the price to the original seller. Therefore, where there is a sale by a share- holder (through his brokers) to jobbers, and before the settling day the company stops, but transfers are executed on payment to persons to whom the jobbers have sold the shares, but which cannot be registered by reason of the winding np of the company, the jobbers are not liable, by the custom of the Stock Exchange, to indemnify the vendor against calls. Coles V. Bristowe, L. R., 4 Ch. 3 ; Grissell v. Bristowe, L. R., 4 C. P. (Ex. Ch.) 36 ; Torrington v. Lowe, ib. 26 ; see Hodgkinson v. Kelly, L. R., 6 Eq. 496; Davis v. Hay- cock, L. R., 4 Ex. 373; Maxted v. Paine, L. R., 6 Ex. 132. But if the sale to the jobber be "with registration guaran- teed," he must, although he give the name of a responsible person to whom the transfer is executed, procure it to be registered, or he will be responsible for the consequence of its non-registration (Cruse w. Paine, L. R., 6 Eq. 641), and, in such a case, the jobber has his remedy over against the purchaser. See Paine v. Hutchinson, L. R., 3 Ch. 388. Where the transfer, though executed by all necessary par- ties to it, has not been approved of (where approval is necessary) and registered by the directors before the com- mencement of the winding up, the transferor will continue liable as a contributory {Walker's Case, L. R., 2 Eq. 554; Shepherd's Case, L. R., 2 Ch. 16 ; Ward and Henry's Case, ib. 431), the Lords Justices differing in opinion as to the grounds of their judgments. See Musgrave and Hart's Case, L. R., 5 Eq. 193. The court, however, may, under section 98 of the Act of 1862, allow the register to be altered (which in general it will do) if the transfer was left in time for approval, and the delay in registration was on the part of the directors, there being no ground for rejecting the trans- feree. Nation's Case, L. R., 3 Eq. 77; Ward and Garfit's Case, L. R., 4 Eq. 189; Ex parte Read, 36 L. J., Ch. 472 ; Evans v. Wood, L. R., 5 Eq. 9 ; Lowe's Case, L. R., 9 Eq. 589 ; Fyfe's Case, L. R., 4 Ch. 768. The discretionary power of the directors to reject a transfer must be exercised in a reasonable manner. Robinson v. Chartered Bank, L. R., 1 Eq. 32; see Skipman's Case, L. R., 5 Eq. 219; Weston's Case, L. R., 6 Eq. 238. It would be proper for directors to refuse to register a transfer in which the transferee is untruly Sale and Tra?isfer of Shares. 413 described and the consideration untruly stated ( Williams' Case, L. R., 9 Eq. 225, n. ; Payne's Case, ib. 223), or the transfer is to a pauper to escape liability. Ex parte Parke, L. R., 2 Ch . 685. The court has no power to rectify the register, Transfer to be if, by the articles of association, or established practice of the tOTor and talS-" company, the transfer is to be executed by both transferor feree. and transferee, and it is not executed by the latter and is not registered in consequence. Musgrove and Harts Case, L. R., 5 Eq. 193 ; Marino's Case, L. R., 2 Ch. 596. But where, in such case, it is registered, and the transferee's name is afterwards removed, though tliat of the transferor be not restored, he will be liable as a contributory. Heri- tage's Case, L. R., 9 Eq. 5. Where a shareholder's signature to a transfer to a bona Forged transfer. ^de innocent purchaser was forged, the company, by regis- tering the transfer and giving certificatesof ownership to the transferee, was held to be estopped from disputing the effect of their own certificates. Re Bahia, SfC. Co., Re Tritton, L. R., 3 Q. B. 584; see Swan v. North British, SfC. Co., 2 H. & C. 175 ; Midland R. Co. v. Taylor, 8 H. L. C. 751 ; Johnston V. Renton, L. R., 9 Eq. 181. A transfer by a father of his Transfer of share shares in a company to his child, who is a minor, will not *'""''"''^- relieve the father from his liability if the shares are repu- diated by the court on behalf of the minor. Reid's Case, 24 Bea. 318. The principle of this case has been applied in many subsequent cases. A transfer to an infant will not relieve the transferor from in ignorance or his liability, though he was ignorant of the fact of the in- ^'infancy. * ^° fancy of the transferee. Capper's Case, L. R., 3 Ch. 458; Mann's Case, ib. 459, n.; see Curtis' s Case, L. R., 6 Eq. 455; a fortiori will it not do so when he is cognizant of it. Wes- ton's Case, L. R., 5 Ch. 614. But when the transferor and the company are both ignorant Company and at the time of the transfer that the transferee is an infant, it rlTonnfaS^yo: is incumbent upon the company, when apprised of that fact, transferee. to communicate it to the transferor. Parson's Case, L. R., 8 Eq. 656. As to the right of an infant to repudiate shares after considerable delay on his part, see Hart's Case, L. R., 6 Eq. 512; Delmar's Case, 17 W. R. 21; cons. Symons' Case, L. R., 5 Ch. 298. A transfer to an infant is not void, but voidable {Mann's Case, sup., corrected on this point); and he may elect, on coming of age, to hold them, and the directors have then no power to disaffirm his right and place his transferor on the register of shareholders. Ltimsden's Case, L. R., 4 Ch. 31. But in a later case {Symons' Case, L. R., 5 Ch. 298), the rule was stated by GifTard, L. J., to be, that not only was confirmation by the infant necessary. 414 Joint Stock Companies. Death. Bankruptcy. Man-iage. Calls unpaid. Contract to transfer. but also the acceptance of that confirmation, either implied or actual, on the part of the company. See L. R., 5 Ch. 301. There must be some distinct act of confirmation on the part of the infant when of age, and capable of confirming. Wilson's Case, L. R., 8 Eq. 240; see Castello's Case, ib. 504. Under the Act of 1 862, in companies adopting Table A, on the death or bankruptcy of a member or marriage of a female member, the person thereupon becoming entitled may be registered or elect to have some other person registered. Table A. (13 — 16). As to the right of a shareholder to transfer shares on which there are unpaid calls, see Orpen's Case, 9 Jur., N. S. 615, on the 7 & 8 Vict. c. 110, s. 54; Huhhersty v. Manchester R. Co., L. R., 2 Q. B. 59, on tlie 8 & 9 Vict. c. 16, s. 16; see Act of 1862, Table A. 10. Where there is a contract to transfer, and the transfer is not to be made until a future day, a call in the interval does not invalidate the contract. Hawkins v, Malthy, L. R., 3 Ch. 188. But a contract to transfer, entered into in ignorance of a petition for winding up having been presented, cannot be enforced against the purchaser so as to make him a con- tributory. Emmerson's Case, L. R., 1 Ch. 433. Mode of Transfer.] By the Companies Clauses Con- solidation Act, 8 Vict. c. 16, s. 14, the transfer must be by deed. By the Act of 1862, the transfer is to be according to the regulations of the company (s. 22). See where Id blank. Table A. is adopted, ol. 8 — 11. Where the transfer is to be by deed a transfer in blank, the transferee not being named, is invalid. Hibblewhite v. M'Morine, 6 M. & W. 200. But a transfer is valid, although the denoting number of shares and date of transfer may be filled in after execution. Be Barned's Bank, L. R., 3 Ch. 105. Transfer on death. The personal representatives of a deceased member may transfer his shares as if they had been members. Act of Executors. 1862, s. 24. Although shares have been specifically be- queathed, and the bequest has been assented to by the executors of the testator, his estate will be liable to contri- bute, and not the legatee, on a winding up, at all events until the directors have approved of the legatee as a share- holder. Keene's Executors Case, 3 D., M. & Gr. 272 ; Bulmer's Case, 33 Bea. 435. Executors accepting fresh shares, though as executors, and in right of their testator, are personally liable as oontributories. Fearnside and Dean's Case and Dobson's Case, L. R., 1 Ch. 231. By the transfer, and due registration of it, the transferee acquires the rights of the transferor, and is bound to the extent that the latter would have been bound in matters affecting tlie Companies Clauses Consolidation Act. Act of 1862. Specific legatee. Kighls acquired on transfer. Hurrender of Shares. 415 company. Ffooks v. S. TV. R. Co., 1 Sm. & G. 142; Mayhew's Case, 5 D., M. & G. 837. After a bona fide transfer, duly registered, the transferee After transfer of is the person liable as a contributory, subject nevertheless to ^''""^• the continuing liability of the transferor in the case men- tioned in the Act of 1862 (s. 38, ante, p. 410). But on a Transfer to evade mere colourable transfer, made without or for a nominal '^'^"'*y- consideration, and solely with a view to avoid liability, the transferor continues liable. See Hyam's Case, 1 D., F. & J. 75 ; Lund!s Case, 27 Bea. 465 ; Costello's Case, 2 D., F. & J. 302; Budd's Case, 3 D., F. & J. 297; Kintrea's Case, L. E., 5 Ch. 95; Payne's Case, L. R., 9 Eq. 223; Williams' Case, lb. 225, n. ; Gilbert's Case, L. R., 5 Ch. 559 ; comp. De Pass's Case, 4 D. & J. 544, and Slater's Case, 35 Bea. 391. An agreement by a shareholder on a bona fide transfer, though for a nominal consideration, to guarantee the directors in respect of future calls, provided they registered the transfer, is good, and the transferor cannot afterwards be placed on the list of contributories. Harrison's Case, L. R., 6 Ch. 286. By the Act of 1862, s. 38, shareholders remain liable for Termination of one year after they have ceased to be members, in the event l^amter &c!'of of the other members being unable to satisfy the calls. Ante, siiares. p. 410; Needham's Case, L. E., 4 Eq. 135 ; Ex parte A?i- drews, L. R., 3 Ch. 161 ; see post, Chap. V. Surrender of Shares.] Under the Acts of 1862 and 1867 there are no express provisions enabling shareholders to sur- render their shares to the company and retire, though by the Companies Clauses Act, 1863, 26 & 27 Vict. c. 118, ss. 8 — 10, that power is given in the case of companies having spe- cial acts of parliament, and incorporating the Act of 1863. In general directors of a company have no power to sunenaerof accept a surrender of shares from a shareholder and thus or*mnsfer"to''™^ I'elease him from liability, and he will be liable as a con- directors. tributory even after the lapse of many years, in the cases cited twelve years {Stanhope's Case, L. R., 1 Ch. 161; Stewart's Case, ib. 511 ; Spackman v. Evans, L. R., 3 H. L. 171 ; Dixon's Case, L. R., 5 Ch. 79), unless the directors have power to do so by the terms of the memorandum of association or articles of the company (see Grady's Case, 1 D., J. & S. 488) ; and if they have they may accept a surrender, although the shareholder may not be registered under s. 23 of the Act of 1862. SnelVs Case, L. R., 5 Ch. 22 ; comp. Hall's Case, ib. 707. So the surrender will be valid if it has been As part of a com- ratified by the company, and is part of an arrangement p"""'*'^- and compromise between shareholders and the company. See Brotherhood^ s Case, 31 Bea. 365 ; aff. on appeal 8 Jur., 416 Joint Stock Companies. Assent of share- holders. Transfer to Indi- vidual director. N. S. 926. And if all the shareholders assented to the arrangement, or there is a clear presumption that they did so, and everything is substantially done according to the agreement sanctioned by them, the arrangement will be bind- ing, and the shareholder agreed to be discharged will be discharged accordingly. Smallcombe v. Evans, L. R., 3 H. L. 249 ; Houldsworth v. Evans, ib. 263. The liability of a former holder of shares may, however, be kept alive notwithstanding a surrender or transfer by his transferee to, and release of the latter by, the company. NevilVs Case, L. R., 6 Ch. 43; and see post, Chap. V. A transfer to an individual director on a compromise of claims on proceedings against the company, is valid. Reeve's Case, 10 W. R. 817. But in Eyre's Case (31 Bea. 177), where the transfer appears to have been, to the knowledge of the transferor, to a director as trustee for the company and in order to stifle inquiry, tlie transferor was held liable on a subsequent winding up. The transferor should in such cases see that the transfer is duly registered, or he will con- tinue liable as a contributory, though the transfer may in other respects be good ( Walker's Case, L. R., 6 Eq. 30), unless he never ought to have been put on the register at all. Fox's Case, L. R., 5 Eq. 118. Notice of intention to forfeit. Improperly de- clared, relieved against. After forfeiture, no contribution. Forfeiture of Shares.] As to forfeiture under the Act of 1862, Table A, see cl. 17 — 22. Mere notice of intention to forfeit without an actual forfeiture is insufficient. Bigg's Case, L. R., 1 Eq. 309 ; see Knight's Case, L. R., 2 Ch. 321. A resolution of forfeiture for a default may be made prospectively, that is, before the actual day arrives, if on the day the default is made. Woollaston's Case, 4 D. & J. 437 ; ace. L. R., 2 Ch. 327. A forfeiture improperly declared will be relieved against in equity. Hart v. Clarke, 6 H. L. C. 633; see Norman v. Mitchell, 5 D., M. & G-. 648; Watson V. Eales, 23 Bea. 294. The discretion of directors to forfeit shares for non-payment of calls is in the nature of a trust to be exercised for tiie bene- fit of all the shareholders. Harris v. iV. Devon R. Co., 20 Bea. 384. After a forfeiture of shares duly made, the holder of them at the time of the forfeiture cannot afterwards be made a contributory, except as a past member under the Act of 1862 (s. 38, ante, p. 410). Knight's Case, L. R., 2 Ch. 321 ; Kelh'sCase, Pahlen's Case, L.R., 9Eq. 107 (cases of mining companies); Ex parte Collum, ib. 236 (case of a chartered company); see Dawes' Case, L. R., 6 Eq. 232. It makes no difference in the application of the rule that tlie name of the shareholder has not been removed from the reorister of Management of Companies. 417 members. Lystor's Case, L. R., 4 Eq. 233. But a for- Collusion. feiture merely to enable a shareholder to retu'e is invalid. Gower's Case, L. R., 6 Eq. 77. A shareholder will be liable to pay calls, although his Calls, shares are forfeited for non-payment of them, if such a right be expressly reserved to the company ; but not interest on the calls. Hocken's Case,!^.}^., 3 Ch..4\2. And though shares are duly forfeited the shareholder will remain liable for one year under the Act of 1862, s. 38. Creyke's Case, L. R., 5 Ch. 63 ; see Needham's Case, L. R., 4 Eq. 135. On the bankruptcy of a shareholder the trustee may dis- Bankruptcy of claim unmarketable shares, which thereupon shall be deemed to be forfeited from the order of adjudication. 32 & 33 Vict. c. 71, s. 23. shareholder. CHAPTER IV. MANAGEMENT OF COMPANIES. Sec. 1. — Statutory Provisions. Registered Qfiee .. .. 417 Name of Company . . .. 417 Register of Mortgages . . in Statement of Assets and Ziaiilities . . .. 417 Annual Meetings .. . . 418 Alteration of Regulations . . 418 Special Resolution . . .. 418 Powers of Attorney .. 418 Examination into Affairs of Company .. .. ,. 418 Notices — Penalties.. .. 418 Minutes of Proceedings, S;c. 418 Arbitration .. .. .. 419 In this section the chief statutory provisions relating to the management of companies will be noticed, and in the follow- ing sections of this chapter the general principles and deci- sions on the subject of such management will be referred to. Every company is to have a registered office (ss. 39, 40). Kegistered osace. Limited companies are to have their names painted or Nameofcom- affixed outside the office, and to have their names engraved ''™''" on their seals and used legibly in aU notices, bills, cheques, orders, &c. (ss. 41, 42). Registers of mortgages are to be kept (s. 43 ; see post, Register of mort- p. 420). _ ^"^^'^ Limited banking companies, insurance companies, deposit, statement ot provident or benefit societies, under the act are to make a buities!'"'"'"'" statement of the capital, shares, calls, assets and liabilities twice a year (s. 44, and Form D., 1st schedule). Lists of directors of non-share companies are to be kept, and sent to 418 Joint Stock Companies. Members reduced below seven. Annual meetings. Alteration of regulations. Special resolu- tion. Powers of at- torney. Examination into affairs of com- panies. Minutes of pro- ceedings and .ap- pointments and acts of directors, &c. the registrar (ss. 45, 46). Section 47 relates to bills and notes {post, p. 419). Companies are prohibited from carrying on business with less than seven members (s. 48, ante, p. 396). General meetings are to be held once a year at least (s. 49) ; and, by the Act of 1867, s. 39, one is to be held within four months after registration. The regulations of the company may, subject to the act and memorandum of association, be altered, and new ones made in general meeting, by special resolution, of which due notice has been given, passed by a majority of not less than three- fourths of the members, and confirmed by a majority at a subsequent general meeting held at an interval of not less than fourteen days nor more than one month from the first meeting. Where a poll is demanded (by at least five mem- bers), a majority has reference to the number of votes to which each member is entitled (Act of 1862, ss. 50, 51). In default of regulations of the company, there are provi- sions as to voting, summoning meetings and chairman of meetings (s. 52). Copies of special resolutions are to be sent to the registrar (s. 53), and are to be annexed to or embodied in the articles (s. 54). Companies may- give powers of attorney to execute deeds out of the United Kingdom (s. 55). The Board of Trade may appoint inspectors to examine into the affairs of any company on the application of mem- bers holding at least one-third of the shares in banking com- panies and one-fifth of the shares in other share companies, or in non-share companies on the application of not less than one-fifth of the registered members (ss. 56, 57). Sections 58, 59, relate to the powers and duties of such inspectors. Companies may, by special resolution, appoint inspectors for a like examination (s. 60), whose report, authenticated by the seal of the company, is legal evidence of their opinions (s. 61). Sections 62 to 64 provide for the service of notices, &c. on companies, which may be sent through the post, and for the authentication of notices, &c. by companies. Sections 65, 66, provide for the recovery and application of penalties which in many cases will be incurred by com- panies on non-compliance with the provisions of the act. Minutes of proceedings at general meetings and meetings of directors, purporting to be signed by the chairman of the meeting or next succeeding meeting, are evidence in legal proceedings, and, unless the contrary is proved, such meet- ings are to be deemed duly held and convened, the resolu- tions duly passed and the acts of directors, managers or liquidators valid (s. 67). Powers, Duties, and Liabilities of Directors. 419 Section 68 relates to the jurisdiction of the vice-warden of the Stannaries. Sections 69, 70, contain provisions as to costs and actions at law. Section 71 relates to the forms which are to be used. Companies may refer matters to arbitration (ss. 72, 73). Sec. 2. — Powers, Duties, and Liabilities of Directors. Directors, Iwm appointed . . 419 Snhserihers to Memoran- dum of Association. . 419 Authority to dram Bills, Sfc. 419 Must act in Name of Company .. .. 419 Power to horrow Money — Accounts .. .. .. 420 In general .. .. 420 Power given ty Share- holders .. .. 420 Register of Mortgages . 420 Mortgage of Calls . . 420 Mortgage Debenture Acts 421 Persons dealing with Directors must see that they have autlio- rity 421 Dut not as to internal Megulations of Corri/- pany .. .. .. 421 Money applied for bene- fit of Company . . 422 Debentures .. .. 422 Lloyd's Bonds .. .. 422 Mights and Remedies of Debenture Holders . . 423 Power to borrow Money — Accounts — continued. Receiver appointed, not Accounts Authority to enter into Con- tracts Contracts in Under Seal Part performed Statutory Provisions . . Goods supplied on Agent's Orders Purcliasing Business of another Company . . Dealings rvith Com- panies by Directors or ProTrioters Solicitors and otJiers . . Liability of Directors . Reports — Misrepresenta- tions Bffect in general False Reports to Sliare- Iwlders .. 423 423 424 424 424 424 424 425 425 425 425 426 426 426 426 Criminal Liability of Dir rectors and Officers . . 427 Directors, how appointed.'^ The directors are elected Directors elected. by the shareholders, but, in the first instance, the subscribers Subscribers to to the memorandum of association are competent to act as ^s^"^^^"" °' first directors. Hallows v. Fernie, L. E., 3 Eq. 520. See as to companies adopting Table A. of the Act of 1862, ib. el. 55, et seq. Authority to draw Bills, ^'cj By the Act of 1862, pro- Made in name ot missory notes and bills shall be deemed to have been made, °°"i""'y' accepted or indorsed on behalf of the company, if made, &c. in the name of the company by any person acting under the E E 2 420 Joint Stock Companies. Not incident to every company. authority of the company, or if made, 8cc. by or on behalf or on account of the company by any person acting under its authority (s. 47). But the power to draw bills is not necessarily incident to every company formed under the Act of 1862; and, by virtue of sect. 47 of that act, that power only exists where, upon a fair construction of the memo- randum and articles of association, it appears that it was intended to be conferred. Re Peruvian Railways, L. E., 2 Ch. 617. Where the power exists, an irregularity in the exercise of it connected with matters relating to the in- ternal management of the company will not affect a bona fide holder for value without notice. Re Land, Sfc. Co. of Ireland, L. R., 4 Ch. 460 ; see Lindus v. Melrose, 3 H. & N. 177 ; Penrose v. Martyr, E., B. & E. 499, de- cided on the analogous section of the previous act, 19 & 20 Vict. c. 47. Power given by sJiarebolders. Register of mort- Power to borrow Money. '\ As regards some companies, hanking comparries, for instance, the power to borrow money is an essential one. Bank of Australasia v. Breillat, 6 Moo. P. C. 152. Directors who have power to do all that the company can do in general meeting, have power to raise money on the security of the assets of the company. Austr. St. SfC. Co. V. Mounsey, 4 K. & J. 733, on the 19 & 20 Vict. c. 47. If the directors have no power to horrow, the majority of the shareholders may authorize them to do so. Bryon v. Metr. Saloon Omnibus Co., 3 D. & J. 123. Where, under the Act of 1862, money is horrowed on gages. mortgage, a register of mortgages must be kept (s. 43). Directors who are entitled to the benefit of a mortgage which is not registered cannot set it up against the general cre- ditors. QucBre, whether an unregistered mortgagee can do so against unsecured creditors. Re Wynn Hall Coal Co., L. R., 10 Eq. 515. As to a mortgage by deposit of deeds, see Re Patent File Co., L. R., 6 Ch. 83. A person who lends money to a company, shares being transferred into his name, suhject to a condition of repay- ment by the company on his giving notice, the shares to be then cancelled, is in the position of an ordinary shareholder, and if notice he given and the money repaid, and then the shares are transferred to a nominee of the company, the lender will nevertheless he liable as a contributory, even after a lapse of some years (eight in the case cited) after the transfer. Addisoti's Case, L. R., 5 Ch. 294. Mortgage of calls. Under a power to mortgage or charge the works, here- ditaments, property and effects of the company, calls already made but not paid may he charged, but not future calls. Re Sankey Brook, Sfc. Co., L. R., 10 Eq. 381; i^Q Ex parte Power to borrow Money. 421 Stanley, 33 L. J., Ch. 535; Pickering v. llfracombe, SfC. Co., L. R., 3 C. P. 235; Xing v. Marshall, 33 Bea. 565. By the 28 & 29 Vict. c. 78 (1865), "The Mortgage Mortgage deben- Debenture Act, 1865" (amended 33 & 34 Vict. c. 20 vict.T?'! f * ^' (1870)), certain companies, incorporated under the Act of 33&3ivictc-20. 1862 or under an act of parliament, are authorized, under certain regulations and restrictions, to issue mortgage de- bentures founded upon the after-mentioned property, such debentures being registered in the Office of Land Registry. The securities upon and in respect of which mortgage securities may be founded and issued are the following: — " (a.) Lands, messuages, hereditaments or real property, or some estate or interest therein: "(b.) Rates, dues, assessments or impositions upon the owners or occupiers of lands, messuages, heredita- ments or real property, imposed by or under the authority of any act of parliament, public or private, royal charter, commission of sewers, or drainage or other sufficient legal authority : "(c.) Charges upon or affecting lands, messuages, here- ditaments or real property executed, made, given or issued under the authority of any act of parlia- ment, public or private." From the securities mentioned in paragraph (o) are ex- cepted securities upon mines or mineral property, quarries, brickfields, factories, leasehold estates determinable upon a life or lives, and not renewable, or held for less than fifty years, or at a rent beyond one-fourth part of the annual value of the property leased. Act of 1870, s. 4. The acts are only applicable to companies formed for the purpose of making advances on the securities above men- tioned, or of borrowing money on transferable mortgage debentures, or on one or more of such securities. The company must have a paid-up capital of not less than 100,000/. Each share must be of the nominal value of not less than 50/., with not less than one-tenth, nor more than one-half paid up. Act of 1865, s. 3. Persons dealing with directors, with respect to contracts Persons dealing and other matters, are bound to ascertain what their powers mustsMthauhey are. See Ernest v. Nicholls, 6 H. L. C. 401, 419; Eagle have authority. Ins. Co., 4 K. & J. 549. But if they have the powers But not as to generally to do particular acts, an irregularity in the mode uon'ouhe^com- of doing them, arising from non-compliance with some pany. internal regulation of the company, will not avoid them. Thus, if directors have power to borrow money on bond, if authorized by a general resolution of the company, and they borrow money on bond, but without such a resolution, the 422 Joint Stock Companies. Money applied for benefit of company. Lloyd's bonda. company will be bound. Roy. Brit. Bank \. Turquand, 6 E. & B. 327; Bar gate v. Shortridge, 5 H. L. C. 297— 318; County Life Assurance Co., L. R., 5 Ch. 288. So, if directors are authorized to accept bills on taking securities to a specified amount, the company will be bound, although securities to an inadequate amount are taken. Re Land, Sfc. Co., L. R., 4 Ch. 460. With respect to companies not limited, there are cases establishing the doctrine that, if directors, though without authority from the shareholders, borrow money, or advance it themselves, and apply it bona fide in the business and for the benefit of the company, they are entitled to be re- imbursed by the company with interest. Ex parte Chip- pendale, 4 D., M. & Gr. 19; Ex parte Bignold, 22 Bea. 143; Troup's Case, 29 Bea. 353; Hoare's Case, 30 Bea. 225; see Cath. Pub. Co., 10 Jur., N. S. 192, under the Act of 1856. But if some of the directors apply the funds of the company for an unauthorized purpose, they and the other directors who have sanctioned the proceeding will be liable to make good the money so applied. Land, S^c. Co. of Ireland y. Ld. Fermoy, L. R., 5 Ch. 763. Where a liability has been created by the unauthorized act of directors, which is ultra vires, the shareholders will not be bound. See Kent Benefit Building Society, 1 Dr. & S. 417. If directors have power to borrow on mortgage, but not on bills, a mortgage by them to secure money borrowed on bills will be valid. Scott v. Colburn, 26 Bea. 276. Debentures are bonds or covenants to pay a particular sum, acknowledged to be due, under the Company's seal. When such debentures are made payable to a person, or bearer or order, which would seem to make them promissory notes {Re Blakely Co., L. R., 3 Ch. 154; Re Gen. Estates Co., ib. 758 ; Colborne and Strawbridge, Ex parte, L. R., 11 Eq. 478 \ an assignee of them takes them discharged from any equities as between the company and original holder. But not if they are merely payable to a person, his ex- ecutors, administrators or transferees, or in special cases, it would seem, even to the holder for the time being, for they are then merely ordinary choses in action, and the general rule in such cases applies. Natal, S^c. Co., L. R., 3 Ch. 355. Lloyd's bonds are securities given for work done and materials supplied to a company. These bonds were originally intended to enable companies to hand over to contractors to whom they might be indebted for works performed, something, which if not money was its equiva- lent, and upon which money might be realized. See per Crompton, J., Chambers v. Manchester, ^c. Co., 5 B. & S. 588. Debentures issued by a company under a general Power to borrow Money. 423 power of borrowing, in part discharge of existing debts, are valid. Inns of Court Hotel Co., L. E., 6 Eq. 82; see Re Cork, 8fc. R. Co., L. R., 4 Ch. 748. But if where stofutory Lloyd's bonds are given after statutory powers of borrowing ""^'^^ exuausicd. have been fully exercised, for the mere purpose of raising money, they are illegal. Chambers v. Manch. R. Co., 5 B. & S. 588 ; Fountaine v. Carmarthen R. Co., L. R., 5 Eq. 316; see Blackmore v. Yates, L. R., 2 Ex. 225; Rashdall v. Ford, L. R., 2 Eq. 750; Watson v. Mid Wales R. Co., L. R., 2 C. P. 593. But they are valid to the extent of the money secured by them which has been applied in paying off other bonds or debts of the company, and which would not otherwise have been paid off. Cork, Sfc. R. Co., L. R., 4 Ch. 748; see the judgment of Lord Hatherley, L. C, and decree, p. 761. Debentures of a company established for buying, selling, Rigiits and reme- &c., freehold and leasehold property, being charged on the dies ot debenture property of the company for the time being, are a Jirst charge at the date of the winding-up order (Re Marine Mansions Co., L. R., 4 Eq. 601 ), and, in general, an assign- ment or charge of "the undertaking" has reference to all the property of the company existing at the date of the charge or debenture and afterwards belonging to the com- pany, giving priority over the general creditors, who can touch nothing until such incumbrances are paid. Panama, 8(c. Co., L. R., 5 Ch. 318, overruling New Clydach, SfC. Co., L. R., 6 Eq. 514, on the point, as to the future property. After the appointment of a receiver, the court will not nebentare holder allow a debenture holder of the company who has obtained a obtaining judg- judgment upon the debenture to issue execution upon his judg- ment, except as a trustee for himself and the other debenture holders. Bowen v. Brecon, %c. R. Co., L. R., 3 Eq. 541. A mortgage debenture given by a railway company in the Effect of mort- form given in schedule C. of " The Companies Clauses Act, SwcTrnpanles 1845," pledges the "undertaking" of the company only as a clauses Act, going concern, and this cannot be interfered with by the ^''^' mortgagee. The expression, " sums of money," means the earnings of the undertaking which may be made available to satisfy the mortgage. Gardner v. L. C. and D. R. Co., L. R., 2 Ch. 201. A receiver of a railway company will Receiver, but not be appointed by the court, but not a manager. lb.; Griffin stated by''court V. Bishop's Castle R. Co., 15 W. R. 1058. It is, of course, one of the most important duties of Accounts. directors to prepare and submit to the shareholders fair and proper accounts ; but directors are not liable for setting down bad debts as good ones, unless they can be fixed with knowledge of the fact that they were bad. Turquand v. Marshall, L. R., 4 Ch. 376. As to fraudulent accounts, for 424 Joint Stock Companies. Contracts of directors in gene- ral bind the com- pany only. Corporate seal. Exceptions. which directors would be criminally liable, see post, pp. 427 — 448 ; and as to dividends declared on erroneous balance- sheets, see post, Sec. 4 of this chapter. Authority to enter into Contracts,] Contracts made by directors or others on behalf of a company are not, in general, binding on them individually (Ellis v. Coleman, 25 Bea. 662), but on the company. See Linden v. Melrose, 3 H. & N. 177 ; Penrose v. Martyr, E., B. & E. 499 ; Rashdall V. Ford, L. E., 2 Eq. 750. But they may contract as prin- cipals, and thus bind themselves personally. Kay v. John- son, 2 H. & M. 118. A non-trading corporation is, as a general rule, bound in equity and at law only by contracts under its common seal. Taylor v. Dulwich Hosp., 1 P. W. 655; Mayor of Ludlow V. Charlton, 6 M. & W. 815; Smart v. West Ham Union, 10 Ex. 867; London Dock Co.Y.Sinnott,S'E.hB.^A:1. But this rule does not apply to trading corporations. Henderson V. Austr. 8{c. Co., 5 E. & B.409; Re Contract Corporation, L. E., 8 Eq. 14; and S. of Ireland Colliery Co. v. Waddle, L. E., 3 C. P. 463, 4 C. P. 617, in which case all or most of the prior authorities on the subject are cited. The directors, who have the chief management of a company, can bind it by affixing its seal in all cases to which their authority extends. Part pcriormance. Ex parte Contract Corporation, L. E., 3 Ch. 105. And if a contract with a non-trading corporation, not under its seal, is not merely executory, but has been in part performed, it may be enforced in equity. Lon. and Bir. R. Co. v. Winter, Cr. & Ph. 57; Wilson v. West Hartp. R. Co., 2 D., J. & S. 475. So if goods have been supplied to such a corporation under a contract not under seal, the price of them may be recovered at law. Nicholson v. Bradfield Union, L. E., 1 Q. B. 620. As to contracts under the Joint Stock Companies Act, 1862, of companies adopting Table A., see clause 53; and as to con- tracts in which directors are interested, ib. 57. By the Act of 1867 it is enacted — " (1) Any contract which, if made between private persons, would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the company ill writing under the common seal of the company, and such contract may be in the same manner varied or discharged. " (2) Any contract which, if made between private per- sons, would be by law required to be in writing and signed by the parties to be charged therewith, may be made on behalf of the company in writing, signed by any person ;icting under the express or implied authority of the com- jiany, and such contract may in the same manner be varied or discharged. statutory pro- visions. Authority to enter into Contracts. 42.5 " (3) Any contract which, if made between private per- sons, would by law be valid, although made by parol only and not reduced into writing, may be made by parol on behalf of the company by any person acting under the express or implied authority of the company, and such contract may in the same way be varied or discharged " (s. 37). Contracts made according to these provisions are binding npon the parties and their representatives. lb. As to the Goods supplied. liability of a joint-stock company for goods supplied on the orders of a manager, see Smith v. Hull Glass Co., II C. B. 897. ■ A contract by the directors of one company, duly autho- rurctiMing busi- rized, to purchase the business of another company is binding, ^paD™°"^°' if executed, whether the selling company has power to sell or not. Era Ins. Co., 1 D., J. 85 S. 29; Ang.-Aus. Co. v. Br. Prov. Co., 8 Jur., N. S. 628. But not, it would seem, if executory. Post, p. 429. As to the rights and liabilities of creditors and shareholders of an old company sold to or amal- gamated with a new one, see post, Sec. 3 of this chapter. Irrespective of any statutory prohibition a director cannot Dealings with avail himself of his position to enter into contracts with Vetera* ^^ ilie company. Aberdeen R. Co. v. Blaikie, 1 Macq. 461; Flanagan v. Gt. W. R. Co., 19 L. T., N. S. 345; see the Act of 1862, Table A. 57, where that applies. Promoters of a company who become directors in it can- Promoters, not buy property and then sell at an advanced price to the company or derive a benefit by way of commission on any such sale. Hichens v. Congreve, 1 R. & My. 150 ; see Fawcett v. Whitehouse, ib. 132; Beck v. Kantorowicz, 3 K. & J. 230. And directors who on the transfer of the business of their company receive money from the purchasing company, which they withhold from their own shareholders, are trustees of such money, and must account for it accord- ingly. Gaskell V. Chambers, 26 Bea. 360. And, in general, secret agreements between promoters, that in the formation of a company they shall derive some especial benefit at the expense of the company, cannot stand. See Ex parte Wil- liams, L. R., 2 Eq. 216; comp. Heymann v. Eur op., Sfc. Co., L. R., 7 Eq. 154; Ex parte Preston, 37 L. J., Cli. 618. And now the particulars of all contracts by the company or promoters must be stated in the prospectus, ante, p. 394. These rules apply to solicitors and others who stand in a Soitai tors and fiduciary relation towards a company. Bank of London v. °"'°"' Tyrrell, 10 H. L. C. 26; Maxwell v. Port. Ten., Sfc. Co., 24 Bea. 495; Gt. Lux. R. Co. v. Magnay, 25 Ben. 586. And, of course, if the directors of a company appropriate to their own use or otherwise deal with, for tlieir own advan- tage, any part of the property or shares of the company, the 426 Joint Stock Companies. I.iahiHtj- of dircctura. Effect in general. Fjilse reports to Bhiireholders. transaction cannot stand. York, Sfc. Co. y. Hudson, 16 Bea. 485. Mere want of judgment in matters in which the directors have full power to act for the shareholders, for instance, in purchasing a business, by reason of which want of judgment great losses are entailed upon the company, will not render the directors liable if they have not acted fraudulently. Overend ^ Co. v. Gurney, L. R., 4 Ch. 701. But if di- rectors misrepresent the state of the company, each share- holder may have his remedy against them at law; but the body of the shareholders cannot maintain a suit in equity to recover from the directors the money which they have lost. Turquand v. Marshall, ib. 376. In The Land Credit Comp. of Ireland v. Ld. Fermoy (L. E., 5 Ch. 763), where a committee of directors, in order to raise the price of their shares, bought some of them through their secretary, paying for them with money of the company, it was held that such of the directors only as were cognizant of the transaction were liable to repay the money to the company. Reports — Misrepresentation.] A company is not bound by the misrepresentations of a member or director, unless in making them he is, and acts as, the agent of the company. Burnes v. Pennell, 2 H. L. C. 497 ; Gibson's Case, 2 D. & J. 275; Nicol's Case, 3 D. & J. 387; see Barwick v. Eng- lish J. S. Bank, L. R., 2 Ex. 259; West. Bank of Scot. v. Addie, L. R., 1 Sc. App. 145 ; Oakes v. Turquand, L. R., 2 H. L. 325. But a company will be bound by the representations or misrepresentations of its agents or directors engaged in managing its affairs, which form the foundation of a contract between the company and third persons. Henderson v. Lacon, L. R., 5 Eq. 261 ; see Nicol's Case, sup. So a company will be bound by statements or representations embodied in reports, &c., sanctioned and adopted by the com- pany, and afterwards circulated, the reports being the proxi- mate and immediate cause of shares being purchased of the company. See Barretts Case, 3 D., J. & S. 30. But this rule does not apply to mere general statements as to existing or anticipated profits, accompanied by documents which afford the means of testing the accuracy of the statements. New Bruns. Co. V. Conybeare, 9 H. L. C. 711; Bwlch, ^c. Co. v. Baynes, L. R., 2 Ex. 324. In Jackson v. Turquand (L. R., 4 H. L. 305), the direc- tors of a banking company, in February, 1864, issued a report declaring a large dividend, a bonus and a large addi- tion to the reserve fund. In June, 1864, they offered to the shareholders the option of taking certain reserved shares at Criminal Liability of Directors. 427 a premium. The report of February, 1864, was in fact utterly erroneous, and in September the bank stopped pay- ment. No evidence of wilfulness on the part of the directors in misrepresenting the affairs of the company was given. It was held that there was not enough on this state of facts to constitute a misrepresentation which would avoid the accept- ance of the reserved shares. Criminal Liability of Directors.] See 24 & 25 Vict. Directors, c. 96, as to the liabilities of directors, members, managers uawe."'*"''™' ' and public officers of companies criminally for fraudulently appropriating property of the company (s. 81); for obtaining property of the company otherwise than in payment of a just demand and fraudulently omitting to make an entry thereof (s. 82); for fraudulently destroying, mutilating or falsifying books, papers or valuable securities of the com- pany, or making or concurring in making false entries or omitting to make material entries in books (s. 83); making or circulating false written statements or accounts, or con- curring in so doing, with intent to deceive or defraud mem- bers or creditors, or to induce persons to become shareholders, or to intrust or advance property to, or become security to the company (s. 84). See also the Companies' Act of 1862, ss. 167, 168, post, p. 448. Irrespective of statutory provisions, directors who agree to publish false statements of the affairs of the company, under such circumstances as show a fraudulent intent to deceive, are not only civilly liable to those whom they have deceived and injured, but may be criminally prosecuted and punished. Burnes v. Pennell, 2 H. L. C. 497. Sec. 3. — Acts ultra and intra Vires. General Prineiples.. .. 427 Transactions ultra Vires void 428 No Ratification of .. .. 428 Company established for one object cannot carry out others 428 Altering Capital .. .. 429 Paying Dividends out of Capital 429 Pwchasing Shares of re- tiring Sha/reholders . . 429 Transfer — A malgamation . . 429 When ultra Vires . . . . 430 Indemnity to selli7ig Com- pany 430 Transfer of Liability to new Company .. , , . , 430 Novation .. .. .. 430 Who may bring Suit . . 430 Power of Majority to bind Minority . . . . . . 431 Acquiescence . . . , 431 Where a transaction is ultra vires of the company, it is General prin- not merely voidable, but wholly and totally void, and one "'"'"" cliiles. 428 Joint Stock Companies. Transactions ultra vires void : As to ratification of. Company esta- blished for one object cannot carry out others. which no general meeting can confirm, because it is alto- gether beyond the power of the company in every sense. Zulueta's Claim, L. R., 5 Ch. 444, 451. In such cases every person who has notice or knowledge that the matter is ultra vires deals with the company or directors at his own risk. lb. The resolutions of general meetings of a company cannot authorize or confirm acts which are ultra vires of the com- pany. Phanix, S^c. Co., 2 J. & H. 441. But it has been said that shareholders in a company cannot lie by sanctioning, or by their silence acquiescing in, an arrangement which is ultra vires of the company, and watching the results, so as to profit by it if favourable, and repudiate it if unfavourable. Gregory v. Patchett, 33 Bea. 595. This would seem appli- cable to those cases only in which the shareholders alone are interested, and in which, although the act done is ultra vires, yet it is of a nature that by conduct they may be estopped from disputing it. See Houldsworth v. Evans, L. E., 3 H. L. 263; Turquand v. Marshall, L. E., 4 Ch. 376. The purposes for which an incorporated company has been established are to be first considered with reference to any question as to acts being or not being ultra vires; for powers granted by parliament for a particular purpose can- not be exercised for other purposes. Galloway v. Mayor of London, L. R., 1 H. L. 34. It has already been men- tioned [ante, p. 403) that a person applying for shares in a company professing to be formed for one object, is not bound to take them when the scheme of the company is materially changed and its original objects departed from. A some- what similar question arises when a company already esta- blished deviates from the purposes for which it was formed, and endeavours, or the directors endeavour, to change the character of the original undertaking, or add to the branches of its original business. See J. S. Discount Co. v. Brown, Li. R., 3 Eq. 139, particularly last paragraph of the judg- ment, p. 151; and S. C, L. R., 8 Eq. 381. In most cases of this description, any single shareholder may apply for the interposition of the Court of Chancery, upon the ground that the acts proposed are ultra vires of the company, and not of a nature that a mere majority of the shareholders can sanction. See Bloxam v. Metr. R. Co., L. R., 3 Ch. 337; Zulueta's Claim, L. R., 5 Ch. 444. And if money of the company has been applied by the directors of their own autllOrity, and without the knowledge and sanction of the company, for the purpose of carrying out such unauthorized undertakings, the directors must make good the money so misapplied. J. S. Discount Co. v. Brown, L. R., 3 Eq. 139; Acts ultra and intra Vires. 429 see Land, ^c. Co. v. Ld. Fermoy, L. R., 5 Ch. 763, ante, company esta- p. 422. Upon the principle which has been stated, that 0^11™°"" companies must not exceed their powers, a company esta- carry out others. blished for life assurance only cannot insure against sea risks. Phcenix Co. (Burgess and Stock's Case), 2 J. & H. 441. A railway company cannot engage in the business of coal merchants (Att.-Gen. v. Gt. N. R. Co., 1 Dr. & S. 154), nor undertake to make a different railway from that for which its act was obtained. Bagshaw v. E. Un. R. Co., 2 Mac. & G. 389. A railway company, however, may contract to carry goods or passengers beyond its own line. Wilby v. W. a R. Co., 2 H. & N. 703 ; Gt. W. R. Co. v. Blake, 7 H. & N. 987; S. Wales R. Co. v. Redmond, 10 C. B., N. S. 675. Where a company was established for the purposes of building and carrying on the business of an hotel, it was held to be not ultra vires to let a large part of it as ofSces tem- porarily to a government body. Simpson v. West. Pal. Hotel Co., 2 D., F. & J. 141. And where a company is formed for the purpose of working a patent, it is not ultra vires to purchase the patent. Lei/child's Case, L. R., 1 Eq. 231. With respect to an alteration in the capital of the company, Altering capital. directors have no power to increase it; but if they do so it will not be ultra vires of the company, and the share- holders may sanction the alteration. Sewell's Case, L. R., 3 Ch. 131. A company must not pay dividends out of capital. Paying aiviaenas M'Dougall v. Jersey Hot. Co., 2 H. & M. 528. But ™"'"=='P»'»'- though directors, by misrepresenting the state of the com- pany, cause greater dividends to be paid than ought to have been paid, the shareholders as a body cannot make the directors liable to repay those dividends. Turquand v. Marshall, L. R., 4 Ch. 376 (case of a banking company). A company is not empowered to purchase the shares of Pttrchasing shares retiring shareholders (Hodgkinson v. Shrewsbury, ^c. R. holders. ^ Co., 4 D. & J. 422), nor its own shares, without a clear and express power for that purpose. Zulueta's Claim, L. R., 5 Ch. 444. Nor is a company authorized to issue preference shares, unless such a power is originally contained in the arti- cles of association. Hutton v. Scarborough Cliff Co., 2 Dr. & S. 521 (under the Act of 1862). Neither can a company Transfer, agree to transfer its business to another company unless ori- ginally authorized so to do. Ernest v. Nicholls, 6 H. L. C. 401 ; see Era Inn. Co., 1 H. & M. 672, ante, p. 425. And if a company has power to amalgamate with, or sell Amalgamation. to any other company of a like nature, it cannot do so with, or to, a company having more extended objects, so as to bind a dissentient shareholder. Ex parte Bagshawe, L. R., 430 Joint Stock Companies. Indemnity to selling company. Transfer of liability to new company. Novation. "V\'Iio may insti- tute proceedings. 4 Eq. 341; see Higgi Case, 2 H. & M. 257; Clinch v. Financial Corp., L. R., 4 Cli. 117. When the amalgamation is ultra vires, even directors of the selling company, who Lad also acted in that capacity in the amalgamated company and Iiad shares allotted to them in it, are not liable as contributories of the purchasing com- pany. Stace and Worth's Case, L. R., 4 Ch. 682; see the judgment of James, V.-C, in the court below, which is reported, ib. 685 (1). An agreement, however, by one company, purchasing under full powers the property of, and amalgamating with, another company, to indemnify the latter against its liabilities, is valid. Ang.-Aus. Co. v. Br. Prov. Co., 8 Jur., N. S. 628. In cases of authorized amalgamation, where the debts and liabilities of the old company are transferred to the new com- pany, strict proof will be required that a creditor of the former, under a special contract, has accepted the liability of the latter. Re Family Endowment Co., L. R., 5 Ch. 118. But if he has done so the former company will be discharged {Be Merchants, ^c. Assoc, L. R., 9 Eq. 694), as by taking a bonus from the new company {Re Times Life Assurance, ^c. Co., L. R., 5 Ch. 381 ; Re Anchor Assurance Co., ib. 632 ; Spencer's Case, L. R., 6 Ch. 362), by executing the deed of settlement of the new company {Fleming's Case, ib. 393), or by sending in a claim against it {Re National, Sfc. Soc, L. R., 9 Eq. 306) ; but not by receiving payment from the new company of an annuity granted by the old one {ib.), nor by merely paying premiums or sending in policies for indorsement. Re Manchester, SfC. Assoc, L. R., 5 Ch. 640; Griffiths' Case, 6 Ch. 374. -See the analogous cases in part- nership transactions, tit. " Partnership." Where acts are ultra vires one shareholder may sue on behalf of himself and the other shareholders {Clinch v. Financial Corp., L. R., 4 Ch. 117; see Cramer v. Bird, L. R., 6 Eq. 143), or in his own name alone. Hoole v. Gt. W. R. Co., L. R., 3 Ch. 262. And the circumstance that he is a shareholder in an extension line formed by the company, but having separate shares, and that he purchased shares in the original company to enable him to file a bill, will not affect his right to do so. Bloxam v. Metrop. R. Co., ib. 337; see Filder v. Lon. Br. fy S. C. R. Co., 1 H. & M. 493; Rogers v. Ox. War. Sf Wol. R. Co., 2 D. & J. 662—664. But otherwise if he has purchased the shares at the instance of a rival company, of which he is a member, by whose direction the suit is instituted, such company indemnifying him against the costs. Forrest v. Manchester, S)-c. Co., 4 D., F. & J. 126. The attorney-general may sue where the Calls — Dividends. 431 matter affects the public, a stranger to the company being the relator. Att.-Gen. v. Gt. N. R. Co., 1 Drew. & S. 154. Where the acts proposed are intra vires of the company, Power of majoriey the majority of shareholders have power to bind the minority, '° """* ""'"""'y- for instance, by a resolution to borrow money. Bryon v. Met. Saloon, S^c. Co., 3 D. & J. 123. Transactions, how- ever, of this nature which are ultra vires of the directors but intra vires of the company must, to be valid, be proved to have been duly brought before the shareholders and to have been sanctioned by them; though it would seem that Acquiescence, acquiescence in transactions with knowledge by the share- holders for many years will be equivalent to an express sanction. Consider Houldsworth v. Evans, L. E., 3 H. L. 263, judgment of Lord Cranworth; and Turquand v. Mar- shall, L. E., 4 Ch. 376. Sec. 4. — Calls — Dividends. Calls 431 Horn made payable . . 431 Fraud, rohen a Defence. 431 Legatees of Shares .. 431 Dividends . . . . . . 432 PayaMe out of Profits . 432 Dividends— con.&iroLeA. Payment out of Capital 432 Diseretion of Directors 432 Payment out of bor- rowed Money . . 432 Preference Shares , , 432 Calls.] A call means an application to the shareholders what, for money {JVewri/, Syc. Co. v. Edmonds, 2 Ex. 119), and How may be may, as a rule, be made payable by instalments {Ambergate, p*^**"''- ^c. Co. V. Norcliffe, 6 Ex. 629) ; but they must all be due before an action in the statutory form is brought. Same v. Coulthard, 5 Ex. 459. See Act of 1862, s. 16, ante, p. 398. Calls are payable by virtue of the agreement which the shareholders enter into, and are made by the directors from time to time pursuant to such agreement, or when the com- pauy is wound up, are made for the purpose of paying the debts of the company. As to calls under the Act of 1862 in companies adopting Table A., see ib. cl. 4 to 7. In an action for calls by a company, it is a good plea that Fraud, the defendant was induced to become a shareholder by the fraud of the company, that he has received no benefit from the shares, and that after a knowledge of the fraud he repu- diated the shares and gave notice of his repudiation to the company. Bwlch, Sfc. Co. v. Baynes, L. E., 2 Ex. 324. The legatees of shares specifically bequeathed are liable for Legatees. calls made after their testator's death, but not in general for 432 Joint Stock Companies. Payable out of profits. Ifot payable out of capital. Discretion of directors. Payment out of borruwed money. Preference shares and dividends on. calls made in the testator's lifetime, payment of which is necessary to perfect the legatee's title. See Armstrong v. Burnet, 20 Bea. 435. As to an assignment of calls by com- panies by way of mortgage, see ante, p. 420. As to the liabilities of contributories on the company being wound up, see post, Chap. V. Dividends.^ As to companies under the Act of 1862, which adopt Table A. of that act, see the provisions as to dividends (cl. 72 — 77). It is scarcely necessary to observe that dividends are properly payable only out of the profits of the business of a company, and this is the directory provision contained in Table A. of the Act of 1862 (cl. 73). And a company will be restrained from paying dividends out of capital where it is subject to the provisions of Table A. (cl. 73) of the Com- panies Act of 1862, or of the 8 Vict. c. 16, s. 121, or any similar provision. M'Dougal v. Jersey, SfC. Co., 2 H. & M. 528 ; Fawcett v. Laurie, 1 Dr. & S. 192. And, in such cases, the court has summary power, under the 101st and 165th sections, or the 138th and 165l;h sections (see Ranee's Case, L. E., 6 Ch. 104, 115) of the Act of 1862, to order a contributory or director to repay a dividend declared and paid under a delusive and fraudulent balance-sheet. Stringer's Case, L. R., 4 Ch. 475, disapproving of Royal Hotel Co. of Yarmouth, L. R., 4,Eq. 244. Where directors, after proper investigation of the financial position of the company, declare, and the shareholders agree to, a dividend or bonus, the court will not lightly interfere with the payment of such dividend or bonus on the ground that the estimates on which it was foundedr have turned out to be erroneous. But where the directors declare a dividend or bonus without proper investigation or professional assist- ance, and it is afterwards called in question, the burden lies on them to show that it was fairly paid out of profits ; and if they are unable to do so, the court will order them to refund what they have received. Ranee's Case, supra. The mere payment of dividends out of borrowed money is not, it seems, an improper proceeding where the balance- sheet is a fair one and the dividend duly declared upon it, but otherwise where the balance-sheet is delusive. Stringer's Case, L. R., 4 Ch. 475. In companies governed by the Act of 1862, preference shares giving a right to priority of dividend cannot be created unless under the original memorandum of associa- tion. Hulton v. Scarborough, l^c. Co., 1 Dr. & S. 521. Winding-up by the Court. 433 CHAPTER V. WINDING-UP. On the Petition of Oi'editors 433 III what Cases .. .. 433 Meaning of the expression " the Court " .. . . 433 Covnty Covrts .. .. 433 Wishes of Majority . . .. 434 On Petition of Contriiu- tories . . . . . . 434 Sec. 1. — By the Court. 30<5-31 Vict.c. 131, s. 40.. 434 Holder of fully paid-up Shares 434 Opinion of Majority as to carrying on Business . . 434 Misconduct of Directors . . 434 Where Resolution for a Voluntary Winding-up . . 435 A COMPANY may be wound up (1) by the court; (2) volun- tarily ; (3) voluntarily, but under the supervision of the court. These subjects will be treated of in the above order, though it has been found convenient occasionally to deviate from the order of the sections of the Acts of 1862 and 1867. Petitions for winding-up may be presented by the company on the petition of or any creditor or contributory of it (Act of 1862, s. 82 j. ™'i"°'^' A company may be wound up, under the act, by the court — in ivhat cases. 1. Under a special resolution. 2. If it does not commence, or if it suspends business for a year. This is not imperative if the delay is properly accounted for. Metr. R. Wareh.Co., 36 L. J., Ch. 827. 3. If its members are reduced to less than seven. 4. When it cannot pay its debts. 5. When the court considers it "just and equitable" (s. 79). These words have reference to matters of the same kind as those pre- viously mentioned. Suburban Hotel Co., L. E., 2 Ch. 737; see Anglo- Greek Steam Co., L. R., 2 Eq. 1 ; Lon. S^ County Coal Co., L. R., 3 Eq. 355. It is deemed unable -10 pay its debts when, for three inabUity to pay weeks after demand, it has neglected to pay or secure a debt '^'^'°^- exceeding 501. (this provision is not imperative ; Brighton Hotel Co., L. R., 6 Eq. 339; see Lon. Wharf, ^c. Co., 35 Bea. 37), or when execution on a judgment or decree is returned unsatisfied wholly or in part, or when the court is satisfied the company cannot pay its debts (s. 80). "The court" means — (1) in the case of mining companies Meaning of " the within the Stannaries, the Court of the Vice- Warden, or, in ™"'^'' certain cases, the Court of Chancery ; f 2) in the case of other registered companies in England, the Court of Chan- cery, — in Ireland, the Court of Chancery, — in Scotland, the Court of Session or a division thereof, — and, in certain cases, the Court of Bankniptcy (s. 81). And the Act of county courts. w. F F 434 Joint Stock Companies. Petitioning credi- tur's debt undis- puted. "Wishes of ma- joi-ity. 1867, 30 & 31 Vict. c. 131, ss. 41 to 45 inclusive, contains provisions conferring jurisdiction on tlie County Courts in certain cases. Wliere the petitioning creditor's debt is undisputed (see Lon. Wharf, SfC. Co., 35 Bea. 37), and the company is un- able to pay its debts, the order to wind-up is almost a matter of course. Isle of Wight Ferry Co., 2 H. & M. 597; Gen. Rolling, S^c. Co., 34 Bea. 314 ; see Bowes v. Hope As- surance Co., 11 H. L. C. 389. The court, however, may allow the petition to stand over to enable the company to make arrangements for payment of its debts. lie Brighton Hotel Co., 6 Eq. 339. And in Re Langley Mill, ^c. Co. (L. R., 12 Eq. 26), it was held that a winding-up order could not be claimed ex dehito justitice by an unpaid creditor of the company, but that the court would have regard to the wishes of the majority of the creditors, and might, under s. 91 of the Act of 1862 {post, Sec. 3), dismiss a creditors' petition, though the debt had not been paid, when the ma- jority of the creditors desired a voluntary winding-up, which the court thought the preferable course. A creditor, peti- tioner for a winding-up order, is entitled to dismiss his petition with costs. Re Times Life, Sfc. Co., L. R., 9 Eq. 382; Re Home Assurance Association, L. R., 12 Eq. 59. Petition of contri- butories. 30 & 31 Vict. c. 131, s, 40. Holder of fully paid-up shares. Opinion of ma- jority as to carry- ing on business. Misconduct of directors. By the Act of 1867 (30 & 31 Vict. c. 131), no contri- butory of a company under the Act of •1862 can present a petition for winding-up, unless the members of the com- pany are reduced to less than seven, or the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him for at least six months during the eighteen months previous to the commencement of the winding-up, or have devolved upon him through the death of a former holder. Shares registered in the name of a wife of a contributory or trustees for her during the whole or any part of the six months are to be deemed to have been held in his name (s. 40). Holders oi fully paid-up shares in a limited com- pany are capable of petitioning as contributories. National Savings Bank, L. R., 1 Ch. 547; Anglesea Coll. Co., L. R., 1 Ch. 555. In considering the question of the expediency of winding-up, the court will take into consideration the views of the majority, and, if they are of opinion that the undertaking can be successfully carried on, will not in general interfere, if the company is solvent, notwithstanding the misconduct of directors or managers. See Anglo-Greek Steam Co., L. R., 2 Eq. 1. It would seem that after a reso- lution for a voluntary winding-up, an order for winding-up Rights and Liabilities of Contributories. 435 by the court will not be made on the application of contribu- tories. Per Turner, L. J., Bank of Gibraltar, L. E., 1 Ch. 69; see Land. ^ Merc. Disc. Co., L. E., 1 Eq. 277; Ex parte Wragge, 37 L. J., Ch. 220. But in West Sur. Tan. Co. (L. E., 2 Eq. 737), notwithstanding a resolution of the com- where resolution pany (not confirmed) for a voluntary winding-up, the court ^Sna°ng';^'^^ made the usual winding-up order on the application of a shareholder, as one particular shareholder held the greatest number of shares, and had a preponderating influence in consequence. Sec. 2. — Who are Contributories — Rights and Liabilities of. Definition in Act . . . . 435 lAability of past and actual Memiera .. .. .. 435 Amount of Liaiility . . 435 Contribution of Directors •with unlimited Liability . 436 Liability a Specialty Debt . 436 Dankniptoy .. .. . . 437 Infants .. .. ..437 Death or Marriage of Con- tributory .. .. .. 437 Married Women Subscribers to Memorandum of Association Shareholders — Fraud Contract to take Shares • . Misrepresentation in Pro- 437 437 438 438 438 Holders of fully paid-up Shares 438 Money or Value received . . 438 Soripholders . . .. .. 439 The word contributory means every person liable to con- DoflniUon in act. tribute to the assets of the company in the event of its being wound up, and, in proceedings for determining who are to be deemed contributories, includes persons who are alleged to be such (s. 74). This definition has not been found so clear and precise as to obviate the necessity of having frequent recourse to judicial interpretation. Every present and past member is liable to contribute to Liability of past debts and liabilities, the expenses of winding-up, and such ^nd actual mem - sums as may be required for the adjustment of their rights amongst themselves, but subject to these qualifications: (1) Past members are not to contribute if they ceased to be members one year before the commencement of the winding- up; (2) Nor in respect of liabilities contracted after they ceased to be members; (3) Nor unless it appears to the court that existing members, are unable to satisfy the contributions required; (4, 5) Contributions are limited to the amount Amount of unpaid on shares or guarantee; (6) The act is not to affect ""'''^'y- policies or contracts in which the liability of members is restricted; (7) No sum due to a member by way of divi- r F 2 436 Joint Stock Companies. Past members. Fnrfeiture of shares of. Contributions of. Contribution of directors with un- limited liability. Liability a spe- cialty debt. dcnds, profits or otherwise, shall be deemed a debt in a case of competition between him and a creditor not a member, but shall be taken into account for the purposes of the final adjustment of the rights of contributories amongst them- selves (s. 38). Past members, who have ceased to be so within the year, are liable in respect of debts contracted before they became, and while they were members {Helherts Case, L. R., 6 Eq. 509; affd. L. R., 5 H. L. C. 28); but not for debts contracted after they ceased to be members. Weston's Case, L. R., 6 Eq. 17. Neither can they be placed on the list of contributories until it is ascertained that the amount receivable from exist- ing members will be insufficient to discharge the liabilities. JVeedham's Case, L. R., 4 Eq. 135; Andrew's Case, L. R., 3 Ch. 161; Helbert's Case, sup. The liability of past members is not put an end to by the shares being forfeited in the hands of their transferees {Bridger's Case, Neill's Case, L. R., 4 Ch. 266), or by their own shares being forfeited; but this section will still apply. Creykes' Case, L. R., 5 Ch. 63. But if their trans- ferees have fully paid up the shares, the liability of their transferors as past members ceases. Weston's Case, L. R., 6 Eq. 17. The contributions of past members ought not to be ex- clusively divided among the old creditors, in respect of whose debts they are made contributories, but form part of the general assets of the company for the payment of all the creditors. Re Accidental, <5fc. Corp., L. R., 5 Ch. 428. Compromises between the liquidators and some of the existing members, under the sanction of the court, will not operate as a release to the past members. Helbert's Case, sup. And a compromise, sanctioned by the court, between the liquidator and a transferee does not operate as a release to the transferor of his liability on the shares as a past member, whether the rights of the liquidator against him have {Nevill's Case, L. R., 6 Ch. 43), or have not {Hudson's Case, L. R., 12 Eq. 1) been expressly reserved. See s. 160, Act of 1860; post, Sec. 5. Directors or managers with unlimited liability are liable to contribute as members of an unlimited company. But the contribution is not to exceed that of an ordinary member where they have ceased to hold office one year before the commencement of the winding-up, or where the debt or liability has been contracted after they ceased to hold office, or where the court does not deem it necessary to require a larger contribution. Act of 1867, s. 5. The liability to contribute creates a debt, in the nature of Rights and Liabilities of Contributories. 437 a specialty, from the time when the liability commenced, payable when calls are made, and, in the event of the bank- ijankrnptcy. ruptcy of the contributory, past calls and the estimated liability to future calls may be proved (ss. 75 — 77). This section only applies where the bankruptcy of the contributory is contemporaneous with the winding-up. Martin's Anchor Co. v. Morton, L. E., 3 Q. B. 306. Under "The Bankruptcy Act, 1861," s. 154, it was held that a bankrupt must be retained as a contributory if the bankruptcy and discharge preceded the winding-up, the debt not being shown to be capable of valuation, and the assignees having repudiated the shares, which had always remained and continued to be vested in the bankrupt. Hastie's Case, L. E., 4 Ch. 274; consider Martin's Anchor Co. v. Morton, L. E., 3 Q. B. 306; see Ex parte Pickering, L. E., 4 Ch. 58; and see now "The Bankruptcy Act, 1869," 32 & 33 Vict. c. 71, s. 31. As to the effect of a person, otherwise liable as a con- lufants. tributory, being an infant, or having been an infant at the time of his becoming possessed of his shares, see ante, p. 413. The personal and real representatives of a deceased Death; contributory are to be deemed contributories (ss. 76, 99, 105). See Turquand v. Kirhy, L. R., 4 Eq. 123, under the 7 Geo. 4, c. 46; Bairds Case, L. E., 5 Ch. 725. Executors who pay a legacy under the will of a share- holder, without providing for contingent liabilities in respect of his shares, are liable to pay the amount of the legacy to the liquidators if the company be eventually wound up. Taylor v. Taylor, L. E., 10 Eq. 477. On the marriage of a female contributory, her husband is or mamafre of to be deemed the contributory (s. 78). Consider the effect of "^""Wbutory. the 33 & 34 Vict. c. 93, s. 12; ante, tit. "Husband and Wife." Where a female possessed shares which on her marriage Married ivotnen. were assigned for her separate use, but the trustees did not accept the trusts, it was held, on the Act of 1856, that the wife, in respect of her separate estate, and also her husband, were contributories. Luard's Case, 1 D., F. & J. 533. And under the 7 Geo. 4, c. 46, it was held that a married woman, a shareholder, was a contributory in respect of her separate estate. Mrs. Matthewman' s Case, L. R., 3 Eq. 781 ; see now 33 & 34 Vict. c. 93, s. 4; ante, tit, "Husband and Wife." Subscribers to the memorandum of association are con- subscribera to the tributories, although no shares have been expressly allotted "s™"^!^"^"'" °' to them. Evans' Case, L. E., 2 Ch. 427; Migotti's Case, L. E., 4 Eq. 238; see />e Beville's Case, L. R., 7 Eq. 11. 438 Joint Stock Companies. Shareholders — Fraud. Where agreement to take shares. Jlisrepresentation iu prospectus. Holders of fully paid-up shares. Money or value received. Ko consideration for. So shareholders who have been properly placed on the re- gister, even, it would seem, if their consent was obtained by fraud. Oakes v. Turquand, L. E., 2 H. L. 325. For a contract induced by fraud is voidable, not void; and until a bill is filed to rescind it, it is valid, though, if rescinded, the rescission relates back to the time of the filing of the bill. Reese River Co. v. Smith, L. E., 4 H. L. C. 64; see Hen- derson V. Lacon, L. R., 5 Eq. 250, 263. If the names of shareholders ought to have been removed from the register, and the neglect in removing them was on the part of the company, they are not liable, but otherwise where the de- fault is their own. Fox's Case, L. E., 5 Eq. 118; Walker's Case, L. E., 6 Eq. 30. Where a shareholder had transferred his shares, his transferee being registered, but the name of the latter was afterwards removed from the register by order of the court, upon the ground of his non-acceptance of the shares, the transferor was held liable as a contributory, although his name had not been restored. Heritage's Case, L. E., 9 Eq. 5. A person, who has agreed to take shares in a company under a contract, complete between himself and the com- pany, will be liable as a contributory. See the cases ante. Application for Shares, p. 399. To what extent and under what circumstances a person will be discharged from liability by reason of deviations from, or fraud or misrepresentation in, the prospectus, has already been considered, ante, pp. 403, 404. Holders of fuUy paid-up shares are not in general liable to debts as contributories in a limited company, whether the shares are paid for by money, property or otherwise, if value has bona fide been given for them (s. 38 (4); Leif child's Case, L. E., 1 Eq. 231); and this is the rule, although the holders may be indebted to the company. Re Marlborough Club Co., L. E., 5 Eq. 365; see De Beville's Case, L. E., 7 Eq. 11. But the shares must be fully paid up. Crawley's Case, L. E., 4 Ch. 322; see Uigotti's Case, L. E., 4 Eq. 238. And if the fully paid-up shares have been taken in payment of the goodwill and stock in trade of a business sold to the company, the vendor and shareholder is not liable as a con- tributory if the contract of sale is unimpeachable. Drum- mon^s Case, L. E., 4 Ch. 772; Pell's Case, L. E., 5 Ch. 11; Forbes and Judd^s Case, ib. 270; Re Baglan Hall Colliery Co., ib. 346; Jones's Case, L. E., 6 Ch. 48. But if paid-up shares have been issued to promoters or directors, nothing having in fact been paid, but in consideration of services rendered in the formation and management of the company, the holders are liable to calls in respect of them. Daniell's Powers of the Court. 439 Case, 1 D. & J. 372; see Leeke's Case, L. R., 6 Ch. 469. Although fully paid-up shareholders are not in general con- nigiit to contriim- tributories to pay, they may be to receive their due share of n™fui'™p°i^ci!up the surplus assets after payment of debts ; and where some shareiiouei-s. shareholders have only in part paid up and others fully, a call may be made to adjust the rights and equities of the members of the company inter se, though all the debts are paid. Anglesea Coal Co., L. E., 1 Ch. 555; see Ex parte Maude, L. E., 6 Ch. 51. Scripholders are not liable as contributories (OrmerodCs scriphoidets uot. Case, L. E., 5 Eq. 110), where they have disposed of their scrip certificates (/J.; Eustace v. Dublin, ^c. Co., L. R., 6 Eq. 182), or they have been forfeited (Ex parte Collum, L. E., 9 Eq. 236) before the winding-up. Sec. 3. — Powers of Judge — Court. In general .. .. .. 439 Commencement of Wind- ing-up . . .. 439 Staying Proceedings against Company . . 439 Wishes of Creditors or Contributories . . 489 Appointment, Powers and Duties of Official Liquidators . . . . 439 Ordinary Powers of Court . 440 As to Contributories . . 440 Estates of deceased Con- tributories .. , . 440 Over Projgerty . • .. 440 Calls ..' .. ..440 Ordinary Powers of Court — continued. Set-off 440 Bankruptcy .. . . 441 Creditors paid rateably 441 Policy holders .. . . 441 Statnte of Limitations . 441 Shares fully paid up . . 442 Mights of Contributoines inter se . . . . 442 Order of Dissolution . . 442 Sale of Swsiness . . 442 Extraordinary Powers of Court 442 To summon Persons . . 442 To order Arrest . . 442 In general.'] — Any judge of the Court of Chancery may Judge in cham. act in chambers (Act of 1862, s. 83). The winding-up com- p^Jj^'j^^j^^.^^^ ^^^^ mences from the presentation of the petition (s. 84). The wmding,up. court may at any time after the presentation of the petition staying proceea- restrain any proceedings against the company (ss. 85, 86). company."'*' "'^ And on the winding-up order being made, no px'oceedings shall be commenced or proceeded with against the company unless by leave of the court (s. 87). The court may stay proceedings after the winding-up order (s. 89), After the order the unpaid share capital of guarantee limited compa- nies divided into shares is assets, and in the nature of a specialty debt due to the company (s. 90). The court may wishes of cre- have regard to the wishes of creditors or contributories, and butorits. may direct meetings to be held to ascertain such wishes (s, 91, ante, p. 434). The court may from time to time ap- Appointment, 440 Joint Stock Companies. jiowcvs ana dutiM point and remove official liquidators and fix their remuuera- of^offlcial li.iuida- ^■^^^ ^gg_ 92, 93). The liquidators are to place under their control the pro- perty of the company (s. 94), and may, with the sanction of the court, institute or defend legal proceedings ; carry on the business of the company, so far as necessary to wind it up ; sell and convey the real and personal property of the company ; do all acts and execute, &c. all deeds, receipts and documents and use the company's seal ; prove in bank- ruptcy against the estate of any contributory; draw, &c. bills or notes on behalf of, and raise money on the security of the assets of, the company; take out letters of administration to the estate of a deceased contributory ; do all other things necessary for winding-up; and appoint a solicitor (ss, 95 — 97). A scheme for the reconstruction of a company is not a sale within s. 95. Re Albert Co., L. E., 6 Ch. 381. And the court may order that any of the above powers may be ex- ercised without the sanction or intervention of the court (s. 96). As to contribu tories. Eegister. Assets. Ordinary Powers of the Court.'] The court shall settle the list of contributories ; rectify register of members, and cause assets to be collected and applied in discharge of liabilities (s. 98). Also shall distinguish between those who are con- tributories in their own right and as representatives of others. Estates of deceased Where the personal representatives of a deceased contributory contributories. ^^^ placed ou the list, his heirs or devisees need not be unless the court thinks fit (s. 99). The court, after a winding-up order is made, may require any contributory on the list, trustee, receiver, banker or agent or officer of the company to deliver any property of the company in his hands, to which the company is prima facie entitled, to the official liquidator (s. 100). Also may order debts due from a contributory to be paid, exclusive of money due under any call, and may, in un- limited companies, allow a set-off in respect of ordinary debts due to the contributory, not being for dividend or profit; and when all creditors are paid in full, a set-off may be allowed against calls, whether the company be limited or un- limited (s. 101). Where a company is being wound up by the court, a con- tributory cannot set off against calls a debt due to him from the company {Grissell's Case, L. E., 1 Ch. 528; Calisher's Case, L. E., 5 Eq. 214; Habershon's Case, ib. 286); nor can he where the company is being voluntarily wound up under supervision {Sankey ^ Co. v. Marsh, L. E., 6 Ex. 185); secus, where the company is being voluntarily wound up. Brighton Arcade Co. v. Dowling, L. E., 3 C, P. 175. Over property. Debts set off against calls. As to set-off against calls. Ordinary Powers of the Court. 441 An ordinary creditor of a company may set off his debt against any claim by the company. Andersori's Case, L. R., 3 Eq. 337; see GrisselVs Case, L. R., 1 Ch. o28; Smith's Case and Gledstane's Case, ib. 538. A set-off was allowed in mscm of bank- between debts due from bankrupt contributories and calls ™v^^- made where the company was being wound up. Re Duck- worth, L. R., 2 Ch. 578 ; see Ex parte Strong, L. R., 5 Ch. 492; Anglo-Greek, SfC. Co., L. R., 4 Ch. 174. This was under the Bankruptcy Act of 1849, s. 171. See now and compare the Act of 1869, s. 39. As to a set-off between the company and holders of their debentures, see Ex parte James, L. R., 8 Eq. 225. When the winding-up has commenced, the creditors of the creditors nre paid company of every degree are paid rateably. Ex parte Ash- "'"'^'''y- bury, L. R., 5 Eq. 233. Even servants are not entitled to priority in payment. Chapman's Case, L. R., 1 Eq. 346. The limited liability acts have not changed the rights of creditors nor the liability of shareholders, but merely the right of issuing execution into a right to obtain satisfaction by a forced contribution. Oakes v. Turquand, L. R., 2 H. L. 325. A creditor holding security is entitled to prove for creditor iioiding the whole amount due to him without regard to part pay- ^«=""'i'- ments after his claim is sent in (Kellock's Case, L. R., 3 Ch. 769; see fVarrant Finance Company' s Case, L. R., 5 Ch. 86 ; Leech's Claim, L. R., 6 Ch. 388), but he must give credit for part payments received before his claim is sent in from other persons liable. Ex parte Maxoudoff, L. R., 6 Eq. 582. In the case of insurance companies, the amount for which policy holders. a policy holder is entitled to prove is that which would be required, by a solvent company having the same rate of pre- mium and same capital, to be pnid, in order to give the policy holder a policy of the same amount under the same conditions and at the same premium. Bells and other Cases, Re Albert Co., L. R., 9 Eq. 706. A debt due from a company is liable to be barred by the statute of Limita- Statute of Limitations and by the laches of the creditor. *'°"''- Ex parte Forest, 2 Giff. 42 (on the Acts of 1848-9). In ^''""='- general, however, a winding-up order prevents the operation of the Statute of Limitations. See Wryghte's Case, 5 De G. & S. 244. The court may make calls to satisfy debts and liabilities caiis. and expenses of winding-up, and may, in making a call, take into consideration that some of the contributories may partly or wholly fail in making payment (s. 102), and may order payment into the Bank of England (s. 103-4). Estates Estates of df- of a deceased contributory may be administered if his repre- ™"?<^'^ contritju- 442 Joint Stock Companies. Amount of call. Shares fully paid up. Rights of contri- butories amongst themselves. Costs of winding- up. Order of dissolu- tion. Sale of business. sentatives fail to pay calls (s. 105). Orders of court to what extent evidence (s. 106). Creditors not proving within a certain time may be excluded (s. 107). Sec. 108 relates to proceedings in the Stannaries Court on proof of debts. A call may be ordered sufficient to cover claims made though not established. Contract Corporation, L. R., 2 Ch. 95. The call may be with interest payable from a day named. Barrow's Case, L. R., 3 Ch. 784 ; see Stocken's Case, ih. 412. If some shareholders have fully paid up their shares, a call may be made upon those who have not, in order that all may be put on an equality. Anglesea Co., L. R., 1 Ch. 555 ; Croohhaven Co., L. R., 3 Eq. 69. The court shall adjust the rights of contributories amongst them- selves, and distribute any surplus that may remain amongst the parties entitled thereto (s. 109). Shareholders who have paid cash for their shares, and shareholders who have their shares fully paid up in consideration of property conveyed to the company, have equal rights to participate in the sur- plus, although the former may be entitled to a preference in respect of dividend. London India Rubber Co., L. R., 5 Eq. 519. Where the assets are insufficient, the court may order the costs of winding-up to be paid in such order of priority as it thinks fit (s. 110). On the affairs of a company being completely wound up, the court shall order that it be dissolved from the date of the order (s. Ill); which is to be reported to the Registrar and a minute of it made by him (s. 112). The petition for winding-up was a lis pendens (s. 114). See Ex parte Thornton, L. R., 2 Ch. 171. But this section is repealed. 30 & 31 Vict. c. 47, s. I. On a compulsory winding-up, the court has no power to sanction the transfer of the company's business to a new company in consideration of payment by the latter of the debts of the former. Gen. Exch. Bank, 15 W. R. 477. But if a company has power to purchase the business of another company, an agreement by the former to pay the debts of the latter is valid. Re Saxon Life, 8^c. Co., 1 D., J. & S. 29; see Hart's Case, 1 H. & M. 79, and ante, p. 429. To order an-eat. Extraordinary Powers ofCourt.^ These are: — To sum- mon persons known or suspected to have property of, or supposed to be indebted to, the company, or deemed capable of giving information as to its affairs, and to require them to produce books, papers, &c. in their custody (without pre- judice to any lien), and, if necessary, to cause such persons to be apprehended (s. 115). To examine persons on oath (s. 117). To cause contributories, about to abscond, or Voluntary Winding-up. 443 remove or conceal their property, to be arrested, and their books, &c. seized (s. 118). See Imperial, S^c. Co., L. E., 5 Eq. 264. The powers given to the court are cumulative. Are cumulative. not restrictive (s. 119). As to enforcement of, and appeal from, orders, see ss. 120 to 129. Sec. 4. — Voluntary Winding-up. Not siihjeot to Supervision of Court 443 In mliat oases .. .. 443 Mesolution for . . Commencement of Staying Proceedings against Company .. Notice of Liquidators, their Pow- ers and Duties When lAquidators ap- pointed by Creditors . Application to Court . . 443 443 443 443 444 444 444 Not subject to Supervision of Court— continuei. Vacancies in Office of Liquidator .. . . 444 Dissolution of Company 444 Costs of Winding-tip . , Subject to Supervision In what Cases . . When commences Liquidators Dispositions, SjC. after commencetnent of the Windiug-up, void . . 445 445 445 445 445 445 Not subject to Supervision of Court.'] A company may in what cases. be voluntarily wound up — (1.) When the period has arrived, or the event occurs, at or upon which it is to terminate by the articles of association, and a resolution for voluntary winding-up has been passed in general meeting; (2.) When Resolution for. a special resolution is passed for the purpose; (3.) When an extraordinary resolution is passed that, by reason of liabili- ties, it cannot continue business, and that a winding-up is advisable (s. 129). The commencement of the winding-up dates from the commencement passing of the second resolution. See sec. 130; Dawes' "'■ Case, L. R., 6 Eq. 232; ace. Weston's Case, L. R., 4 Ch. 20, 25. As to the necessity for a second resolution, see Bridport Old Brewery Co., L. R., 2 Ch. 191. On a voluntary winding-up the court has power to stay staying proceed- proceedings against the company. Keynsham Co., 33 Bea, 123; Sablonniere Hotel Co., Jj.R., 3 ^q. 74. After a reso- lution for voluntary winding-up, the company is to cease to carry on business, except for the purpose of beneficially winding it up, and transfers of shares, except with the sanc- tion of the liquidators, are void (s. 131). See Biderman v. Stone, L. R., 2 C. P. 504. Notice of the resolution is to be Notice of. advertised (s. 132). On a voluntary winding-up the follow- ing consequences ensue : (1) the property of the company is to be applied in satisfaction of its liabilities pari passu, and inKS agaiuat com- pany. 444 Joint Stock Companies. Liquidiitors and their powers and duties. When liquidators appointed by cre- ditors. Application to the court. Vacancies, &c. in office of liquidator. Dissolution of company. subject thereto is to be distributed amongst the members, unless otherwise provided by the regulations of the company; (2 — 5) liquidators are to be appointed in general meeting, on which the powers of directors are to cease, except so far as a general meeting, or liquidators, may sanction the con- tinuance of them ; (6) where several liquidators are ap- pointed, every power may be exercised by one or more, as may be determined at the time of their appointment, — in default of such determination, by any number, not less than two; (7, 8) the liquidators maj, without the sanction of the court, exercise all powers given to official liquidators, also the powers of the court to settle the list of contributories, every list so settled being 'prima facie evidence of liability ; (9, 10) may exercise other powers corresponding with those given to the court by sections 102 and 109 (ante, pp. 441, 442) (s. 133). Under this section one liquidator, not having power to act alone at the time of his appointment, cannot accept, &c. bills generally so as to bind the company, though authorized to do so by his co-liquidators. Ex parte Bir- mingham, ^c. Co., L. R., 3 Ch. 651. But it would seem they may authorize the acceptance, &c. by one, of any par- ticular bill. Bolognesi's Case, L. R., 5 Ch. 567. Consider, however. Ex parte Agra, S^c. Bank, L. R., 6 Ch. 206, and the observations, ib., p. 210. As to a set-off against calls, see ante, p. 440. Sec. 134 is similar to sec. 90 (ante, p. 439), as to guarantee companies, the power of the liquidator being substituted for that of the court. A company in course of voluntary winding-up may dele- gate to creditors the power of appointing liquidators, and such arrangement is binding on the company if sanctioned by an extraordinary resolution, and on creditors if acceded to by three-fourths in number and value (ss. 135, 136). Any creditor or contributory may, within three weeks of the arrangement, appeal to the court against it (s. 137). Where a company is being wound up voluntarily, the liquidators or any contributory may applj' to the court to determine any question arising (s. 138). See Ranee's Case, L. R., 6 Ch. 104, cited post, p. 448. The liquidators may summon general and annual meetings of the company (s. 139). The company may fill up vacancies in the office of liquidators (s. 140), and the court may appoint or remove them (s. 141). Marseilles R. Co., L. R., 4 Eq. 692. When the affairs of the company are fully wound up, the liquidators are to render an account to a general meeting of the company and make a return to the registrar of the meet- ing having been held. Three months from the registration Subject to the Supervision of the Court. 445 of the return the company shall be deemed to be dissolved (ss. 142, 143). The dissolution of the company under the last section seems not to deprive the court of its jurisdiction over the company. Croohhaven Mining Co., L. R., 3 Eq. 69. The costs of the vs'inding-up have priority of payment costs of wUiding- (s. 144). The voluntary winding-up is no bar to a winding- "p- up by the court (s. 145), in which case the court may adopt the proceedings under the voluntary winding-up (s. 146). Subject to the Supervision of the Court.'\ When a volun- in what cases, tary winding-up has commenced, the court may order it to con- tinue, subject to the supervision of the court, having regard to the wishes of contributories and creditors (ss. 147 — 149). But the court will not interfere in general with a voluntary winding-up on the application of a contributory unless there has been fraud or undue influence in passing the resolution. Beaujolais Wine Co., L. E., 3 Ch. 15. A voluntary wind- when commences. ing-up under supervision, like an ordinary voluntary winding- up {ante, p. 443), is to be deemed to commence from the date of the second resolution, and not from the presentation of the petition on which the order is founded. JVeston's Case, L. R., 4 Ch. 20. The court may appoint additional Liquidators, liquidators, remove liquidators and fill up vacancies (s. 150). See Marseilles, SfC. Co., L. R., 4 Eq. 692 ; London Quays, Sfc. Co., L. R., 3 Ch. 394. The liquidators may, subject to any restrictions by the court, exercfse all their powers as under a voluntary winding-up, but, save as aforesaid, the orders made by the court shall have the same effect for all purposes as if the winding-up were by the court ; and the expression "official liquidators" shall mean liquidators in a winding-up under supervision (s. 151). On a change from voluntary to compulsory winding-up, the liquidators under the former may be appointed official liquidators under the latter (s. 152). When a company is being wound up by, or Dispositions, &c. subject to the supervision of, the court, dispositions of the menVoTwindtag- property of the company and transfers of shares between np. the commencement of, and orrfer for, winding-up, are, unless otherwise ordered, void (s. 153). Sec. 153 does not inva- lidate contracts for the sale of shares entered into but not completed by transfer before the presentation of a petition for winding-up. Chapman v. Shepherd, Whitehead v. Isod, L. R., 2 C. P. 228 ; see Rudge v. Bowman, L. R., 3 Q. B. 689. Neither does it invalidate completed dispo- sitions of the property of the company made bona fide be- tween the time of presenting the petition for, and the time of making, the order ; aliter, where such dispositions rest in contract only. Ex parte Pearson, L. R., 3 Ch. 443. 446 Joint Stock Companies. Sec. 5. — Miscellaneous Provisions. Attachments, ^c. agoAnst Documents of prima facie Evidence .. 446 Assignee of Chosesin Action 446 Compromises . . .. 446 Sale to another Company . . 447 Dissentient Shareholders . . 447 447 Fraudulent Preference . . 448 Mutilation, ^^c. of Docu- ments .. .. .. 448 Prosecution of Directors, ^'c. 448 Documents of company are j^rinut facie evi- dence. Assignee of Glioses ill action. Compromise. "Wliere compro- mise proposed, Court of Cliancery may order a meet- ing of creditors, &c. to decide as to sucll compro- mise. The books and documents of the company are prima facie evidence as between the contributories and liquidators (s. 154), and may be inspected, by order of the court, by creditors and contributories (s. 156i. Sec. 155 relates to the custody and disposal of books and documents. Persons to whom choses in action of a company are assigned, in pur- suance of the act, may sue or defend in their own names (s. 157). Debts of every kind, contingent and otherwise, may be proved against the company (s. 158). As to proof and claim by a lessor against a company lessee, see Haytor Granite Co., L. R., 1 Ch. 77 ; Horsey's Claim, 'Li. E.., 5 Eq. 561. In certain cases, with the sanction of the court, or when the winding-up is altogether voluntary, with the sanction of an extraordinary resolution of the company, some creditors may be paid in full and compromises effected as to debts, calls and liabilities (ss. 159, 160). The court cannot sanction an arrangement by which a minority of creditors or contributories are bound to accept a compi'omise against their will. lie Albert Co., L. R., 6 Ch. 381 ; comp. Ex parte Miller, L. R., 2 Ch. 692. Now by the 33 & 34 Vict. c. 104, cited as " The Joint- Stock Companies Arrangement Act, 1870" (s. 1), "Where any compromise or arrangement shall be proposed between a company which is, at the time of the passing of this act or afterwards, in the course of being wound up, either volun- tarily or by or under the supervision of the court, under the Companies Acts, 1862 and 1867, or either of them, and the creditors of such company, or any class of such creditors ; it shall be lawful for the court, in addition to any other of its powers, on the application in a summary way of any creditor or the liquidator, to order that a meeting of such creditors or class of creditors shall be summoned in such manner as the court shall direct; and if a majority in number, i-epresenting three-fourths in value of such creditors or class of creditors, present either in person or by proxy at such meeting, shall agree to any arrangement or compromise, such arrangement or compromise shall, if sanctioned by an order of the court, be binding on all such creditors or class of creditors, as the Miscellaneous Provisions. 447 case may be, and also on the liquidator and contributories of the said company" (s. 2). " The word ' company ' in this act shall mean any com- interpretation. pany liable to be wound up under ' The Companies Act, 1862 ' " (s. 3). " This act shall- be read and construed as part of ' The Act and com- Companies Act, 1862 ';■ (s. 4). S^Lge^er'' Where a company is being wound up altogether volun- sale to another tarily, and its business proposed to be sold to another com- <^°'"iiai)y. pany, the liquidators may, under a special resolution, or where there is a winding-up order within a year, with the sanction of the court, receive payment wholly or in part in shares, &c. of the latter, but a dissentient from such an Dissentient share- arrangement may require the liquidators to abstain from carrying out the arrangement or to purchase his interest, at a price which, if not agreed upon, is to be settled under the arbitration clauses of " The Companies Clauses Act, 1845," (Act of 1862, ss. 161, 162). Sec. 161 clearly contemplates a sale of the assets of the liquidating company for such an equivalent in value as is pointed out in that section, and does not contemplate the subjecting of the shareholders in the liquidating company, without their unanimous consent, to a fresh and original lia- bility in the shape of a guarantee. Per Lord Cairns, L. C, Clinch V. Financial Corporation, L. R., 4 Ch. 121. An agreement by a liquidating company. A., to sell to company B., in consideration of shares to be allotted in B. to the shareholders of A., so much to be taken as paid thereon, the assets of A. to be realized and applied first in payment of its debts ; then towards payment of the balance of such shares in B. ; in the event of a deficiency, a call to be made on the shareholders of A. to make it good, — is void, as being ultra vires, and not within s. 161. lb. See Imp. Bank of China, Sfc. v. Bank of Hindustan, Li. R., 6 Eq. 91 ; Vining's Case, L. R., 6 Ch. 96 ; Ex parte Fox, ib. 1 76 ; Southall V. Br. Mut., SfC. Society, L. R., 11 Eq. 65 ; aff. 6 W. N. 116. As to the novation of contracts on the sale of the business of one company to another, see ante, p. 430. After the commencement of the windinar-up by or under Attachments, &o. • ■ J? ,1 . ii i_ J. J. i- against companies. the supervision oi the court, any attachment, sequestration, distress or execution against its estate or effects is void (s. 163). Notwithstanding the terms of this section, the court has a discretionary power to permit the attachment, &c. to have due effect. See Great Ship Co., 33 L. J., Ch. 245; London Cotton Co., L. R., 2 Eq. 53; Re Bastow Sf Co., L. R., 4 Eq. 681. 448 Joint Stock Companies. Fraudulent pre- ference. Compclliiif? direc- tors. &c., to re- iuud. Mutilatinn or fal- siflcaLioii of docu- ments. Prosecution of directors, &c. Conveyances or other acts relating to property, by a com- pany, which in the case of an individual trader would, in the event of his bankruptcy, be deemed to be by way of fraudulent preference, are, if the company be wound up, invalid. The presentation of a petition for winding-up or resolution for voluntary winding-up shall be equivalent to an act of bankruptcy in the case of an individual. Con- veyances of all the estate and effects of a company to trustees for the benefit of creditors are void (s. 164). In2?e Patent File Co. (L. E., 6 Ch. 83), the directors of a company were authorized to borrow money. Their account with their bankers being overdrawn, and the bankers pressing for se- curity, the directors deposited with them the title-deeds of the property on which the company carried on their business, and gave a memorandum of deposit under the seal of the company, making the deeds a security for the balance of account. Within six mouths after this a resolution was passed for winding-up. It was held that this security was valid, and not a fraudulent preference within this section. The court, in the course of a winding-up, may compel any director or other official to repay any moneys (with interest) misapplied or i-etained (s. 165). In order that the court may act under this section, the case against the directors or officer must be clear, and there must be no question of law to be determined. Roy. Hotel Co. Src, L. R., 4 Eq. 244. An application may be made under this section and section 138 (ante, p. 444), in the case of a company being volun- tarily wound up, as well as in the case of a company being wound up by the court, or voluntarily under supervision. Ranee's Case, L. E., 6 Ch. 104; see Bank of Gibraltar, ^c., L. E., 1 Ch. 69. The destruction, mutilation or falsification of any books, documents or securities by, or false entry in any register, book or document by or with the privity of any director, officer or contributory of a company wound up under the act, with intent to defraud or deceive, is a misdemeanor, punishable by not more than two years' imprisonment (s. 166). The court may order or sanction the prosecution of delinquent directors, &c. (ss. 167, 168). The Lord Chan- cellor and two equity judges may frame rules of procedure and practice in England (s. 170). See the rules, Lindley on Partnership, 1525 et seq. Sections 171 — 173 provide for the framing of similar rules in Scotland, the Stannaries Court, and Ireland. Section 174 relates to the registration office. Application of Act of 1862. 449 CHAPTER VI. APPLICATION or ACT OP 1862 TO COMPANIES NOT POEM ED UNDER IT. Application of Actio exlst- 449 Limited.. .. .. 449 Unlimited . . . . 449 Companies authorized to register under the Act . . 449 Hxisting at Time of Act 449 Afterwards formed . . 449 nies . , 449 Companies authorized, ^-c cont. Effect of Registration of old Companies un- der the Act .. .. 449 Application of the winding- up Provisions to Unregis- tered Companies ,. .. 450 Schedules to Act . . .. 450 Table A 450 Application of Act to existing Companies.} The act, with As to prior joint certain exceptions and qualifications, is made applicable to Stock Companies companies formed and registered, or registered only, under "The Joint Stock Companies Acts, 1856 and 1856—7," « The Joint Stock Banking Companies Act, 1857," " The Act to enable Joint Stock Banking Companies to be formed on the Principle of Limited Liability," in the same manner in the case of a limited company as if it had been formed Limited ana and registered under the Act of 1862 as a share limited com- "^'^*«^- pany, and in the case of a company other than a limited company, as if it had been formed and registered under the Act of 1862 as an unlimited company (ss. 175 to 178). Companies authorized to register under the Act.'] With Existing at time cei'tain exceptions, companies existing at the time of the °''^'- commencement of the act (including those registered under any of the above-mentioned Joint Stock Companies Acts) or afterwards formed under an act of parliament or letters Afterwards patent, or being a mining company subject to the jurisdic- *°"^^^- tion of the Stannaries, consisting of seven or more members, may, subject to certain regulations, register under the act, although merely for the purpose of winding-up (ss. 179 — 187). Banking companies, existing at the date of the act intend- Banidng com- ing to register with limited liability, must give notice of r*"*^- their intention to their customers (s. 188). Registration of old companies under the act is not to affect previously-exist- ing rights and liabilities (ss. 194, 195). See Fountain's Case, 11 Jur., N. S. 553. After the registration of old companies under the act the Effect of registra- prior regulations of such companies shall continue in force, paiSra mderTie and the provisions of the act shall also be applicable to them, aot. W. G G 430 Joint Stock Companies. subject to certain restrictions, in particular that Table A, Scb. 1, unless adopted by special resolution, shall not apply (s. 196). Sections 197, 198 contain provisions as to staying proceed- ings against contributories of an old company, registered under the act, after the presentation of a petition for the winding-up the company. In what cases. Application of Act to Unregistered Companies.^ Un- registered partnerships, associations or companies (except railway companies incorporated by act of parliament), con- sisting of more than seven members, may be wound up under the provisions of the act, but not voluntarily or subject to the supervision of the court. See Re Bank of London, ^c. Insurance Association, L. R., 6 Ch. 421. The cases in which such companies may be wound up, and the provisions as to winding-up, are, with some variations, similar to those already mentioned with reference to companies formed under the act (ss. 199 to 204). After the presentation of a petition to wind up an imregistered company, the company was registered under "The Companies Act, 1862," with a view to a voluntary winding-up. An order having been subse- quently made on the petition; it was held, that, notwith- standing the registration, the company was an unregistered company within the meaning of sect. 203 of the Act of 1862. In re Hercules Insurance Company, L. R., 11 Eq. 321. Sections 205 to 212 relate to the repeal of several acts, and contain various temporary provisions. Table A. Schedules.'] The first schedule to the act. Table A., con- tains various provisions relating to the management of share limited companies, and as to shares, calls on shares, transfer, transmission and forfeiture of shares, conversion of shares into stock, increase in capital, general meetings, votes of members, directors, dividends, accounts and notices; form- ing, in effect, a series of regulations for the complete manage- ment of such companies as choose to adopt them. See ante, p. 398. The other schedules contain various forms and a list of repealed statutes. ( 451 ) JOINT TENANCY— TENANCY IN COM- MON— COP AKCENAEY. Ch. 1. — Joint Tenancy, p. 451. Ch. 2. — Tenancy in Common, p. 456. Ch. 3. — Coparcenary, p. 458. Ch. 4. — Partition, p, 459. CHAPTER I. JOINT TENANCY. Nature of Interest . . . . 451 Som crea. The 23 & 24 Vict. c. 38, is not retrospective. Evans v. Williams, 2 Dr. & Sm. 324. By the 27 & 28 Vict. c. 112, "No judgment, statute or Future juag- recognizance to be entered up after the passing of this act SScUMd until" shall affect any land (of whatever tenure) until such land delivered in ex- shall have been actually delivered in execution by virtue of ''™"™- a writ of elegit or other lawful authority, in pursuance of such judgment, statute or recognizance" (s. 1). " In the construction of this act the term 'judgment' interpretation of shall be taken to include registered decrees, orders of courts '*'''°^" of equity and bankruptcy, and other, orders having the operation of a judgment; and the term 'land' shall be taken to include all hereditaments, corporeal or incorporeal, or any interest therein; and the term 'debtor' shall be taken to include husbands of married women, assignees of H h2 "Writs of execu- tion to be regis- tered in manner prescribed by the 23 & 24 Vict. Creditors to whom land delivered in execution entitled to obtain sum- mary order from Court of Chancery for sale. Where there are other creditoiB, notice of sale to be served upon them. Parties claiming 468 Judgments, Decrees and Charging Orders. bankrupts, committees of lunatics, and the heirs or devisees of deceased persons" (s. 2). " Every writ or other process of execution of any such judgment, statute or recognizance, by virtue whereof any land shall have been actually delivered in execution, shall be registered in the manner provided by an act passed in the session of the 23 & 24 Vict. [c. 38], intituled ' An Act to further amend the Law of Property,' but in the name of the debtor against whom such writ or process is issued, instead of, as under the said act, in the name of the creditor; and no other or prior registration of such judgment, statute or re- cognizance shall be or be deemed necessary for any purpose; and no reference to any such prior registration shall be re- quired to be made in or by the memorandum or minute of such writ or other process of execution which shall be left with the senior master of the Court of Common Pleas for the purpose of such registry" (s. 3). " Every creditor to whom any land of his debtor shall have been actually delivered in execution by virtue of any such judgment, statute or recognizance, and whose writ or other process of execution shall be duly registered, shall be entitled forthwith, or at any time afterwards while the re- gistry of such writ or process shall continue in force, to obtain from the Court of Chancery, upon petition in a sum- mary way, an order for the sale of his debtor's interest in such land, and every such petition may be served upon the debtor only ; and thereupon the court shall direct all such inquiries to be made as to the nature and particulars of the debtor's interest in such land, and his title thereto, as shall appear to be necessary or proper ; and in making such in- quiries, and generally in carrying into effect such order for sale, the practice of the said court with respect to sales of real esta,tes of deceased persons for the payment of debts shall be adopted and followed, so far as the same shall be found conveniently applicable" (s. 4). " If it shall appear on making such inquiries that any other debt due on any judgment, statute or recognizance is a charge on such land, the creditor entitled to the benefit of such charge (whether prior or subsequent to the charge of the petitioner) shall be served with notice of the said order for sale, and shall after such service be bound thereby, and shall be at liberty to attend the proceedings under the same, and to have the benefit thereof; and the proceeds of such sale shall be distributed among the persons who may be found entitled thereto, according to their respective priori- ties" (s. 5). " Every person claiming any interest in such land through Judgments and Decrees. 469 ov under the debtor, by any means subsequent to the delivery interest throngh of such land in execution as aforesaid, shall be bound by order for'sate? ""^ every such order for sale, and by all the proceedings conse- quent thereon" (s. 6). " This act shall not extend to Ireland" (s. 7). Under the 27 & 28 Vict. c. 112, priorities are determined priorities. not by the date of the judgment, but according to the date at which the writs are placed in the hands of the sheriff. Guest V. Cowbridge R. Co., L. E., 6 Eq, 619. A judgment Judgment ore- creditor under the act cannot present a petition under s. 4 dcUvered'\n''ex- for a sale of the debtor's lands in a summary way, where ecution to an- they have already been extended and delivered to another judgment creditor ; but he may file a bill to redeem, and when he has got rid of the prior elegit he may petition under the act. Re Cowbridge R. Co., L. R., 5 Eq. 413. In Re D. of Newcastle (L. E. 8 Eq. 700), it was held, that as an Equitable inte- equitable interest in property could not be taken in execution, '^*'- since the actual possession of it could not be obtained, the court could not give effect by sale to a judgment against the person entitled to such equitable interest. See Gore v. Bowser, 3 Sm. & G. 1. No judgment, statute or recognizance (except to the crown) Kegistration in shall affect any hereditaments in the West Riding (5 & 6 ^^^ ercoumea. Anne, c. 18, s. 4), the East Riding and Kingston-upon-HuU (6 Anne, c. 35, s. 19), or in Middlesex (7 Anne, c. 20, s. 18), but from the time that a memorandum thereof shall be entered in the registry offices of those places respectively ; but as to hereditaments in the West and East Ridings, if registered within thirty days after the acknowledgment or signing thereof, they bind the lands of the defendant or cognizor at the time of such acknowledgment or signing. 5 & 6 Anne, c. 18, s. 11 ; 6 Anne, c. 35, s. 28. By the 6 Anne, c. 35, s. 34, the provisions, matters and things in that act concerning the East Riding and Kingston- upon-Hull, not provided for in the West Riding acts, are extended to hereditaments in the West Riding, the mortgage or purchase whereof exceeds 601. And by the 8 Geo. 2, c. 6, s. 1, as to hereditaments in the Nortli Riding, judg- ments, &c., unless registered, are made void against subse- quent conveyances, mortgages, judgments, &c. for value which are registered, but if registered within twenty days after the acknowledgment or signing of such judgments bind the lands of the defendant or cognizor at the time of such acknowledgment or signing (s. 33). See, as to these acts, Johnson v. Holdsworth, 1 Sim., N. S. 106. With respect to the operation of judgments in register Priorities of counties prior to the 23 & 24 Vict. c. 38 and 27 & 28 Vict. J"^*"'™''- Trlority depends upon registiTttion in the county. Operation of 27 & 28 Vict. c. 112. Judgments ob- tained in one part of United King- dom may be en- forced in another part, if registered there. Execution on. Security for costa. 470 Jud(j iiients. Decrees and Charging Orders. c. 112, it was held that they bound lands in such counties, if duly registered in the Common Pleas, from the time of their being registered in the county; their priorities being deter- mined according to the date of registration in the county. Westbrooke v. Blythe, 3 E. & B. 737; Benham v. Keane, 3 D. F. & J. 318. Therefore where a judgment was regis- tered in the Common Pleas, and a later judgment registered in the Common Pleas and county, and afterwards the first judgment was registered in the county, it was postponed to the other which had first been registered there. Hughes v. Lumley, 4 E. & B. 274. And where a judgment was regis- tered in the county, then another judgment registered in the county and the Common Pleas, and afterwards the first judgment was registered in the Common Pleas, it was held to have priority over the other judgment. Neve y. Flood, 33 Bea. 666. The doctrine of notice was held not to apply as between judgment creditors; so that registration of a judgment in Middlesex was not affected by notice of a prior un-registered judgment there. Benham v. Keane, sup. But otherwise as between judgment creditors and mortgagees. Jb.; Lee V. Green, 6 D., M. & G. 155. Since the 27 & 28 Vict. c. 112, it would seem that judg- ments, or the registration of judgments, cannot affect lands in any way until actually delivered in execution. Priorities of judgments inter se in register counties would now, there- fore, seem to be quite unaffected by any mere registration in the Common Pleas. What precise effect this act may have upon the operation of judgments duly registered in register counties may perhaps call for judicial determination here- after. By the 31 & 32 Vict. c. 54, facilities have been given for enforcing judgments obtained in one part of the United Kingdom in the courts of another part. When judgment has been obtained in the courts at Westminster, a certificate thereof registered in Ireland, and vice versa, shall have the effect of a judgment of the court in which it is so registered (s. 1). Where judgment has been obtained in the courts at Westminster or at Dublin, a certificate thereof registered in Scotland shall have the effect of a decreet of the Court of Session (s. 2). Where decreet has been obtained in the Court of Session, a certificate of an extract thereof regis- tered in England or Ireland shall have the effect of a judg- ment of the court in which it is so registered (s. 3). The above-mentioned courts shall have control over registered judgments or decreets iu so far as relates to execution (s. 4). No security for costs need be given where a plaintiff resides Charging Orders. 471 ill a different part of tlie kingdom, unless llie court shall otherwise order (s. 5). Costs are not to be allowed in actions on judgments or decreets where the judgment or decreet might be registered in the countiy in which the action is brought, unless by order of court (s. 6). Eules may be made for the execution of the act (s. 7). What 471 XHmdends may he stopped. . i71 Order absolute .. .. 472 Order nisi •• • • .. 472 Priorities in respect of . . 472 CHAPTER II. CHARGING ORDERS. Interest mhich may be 472 As to Pensions .. . . 473 Shares in Companies held by Trustees .. .. 473 Bt the 1 & 2 Vict. c. 1 10, it is enacted, " that if any person stock ana shares against whom any judgment shall have been entered up in ana p™ii'™m. any of her Majesty's superior courts at Westminster, shall panies beiongms have any government stock, funds or annuities, or any stock ^anSng in ws" or shares of or in any public company in England (whether °^" """e to ue .•'j j.\ij- •!■ -i.- • 1 J. Charged by order incorporated or not), standmg in ms name in his own right, of a judge. or in the name of any person in trust for him, it shall be lawflil for a judge of one of the superior courts, on the application of axij judgment creditor, to order that such stock, funds, annuities or shares, or such of them or such part thereof respectively as he shall think fit, shall stand charged with the payment of the amount for yflaiah. judg- ment shall have been so recovered, and interest thereon, and such order shall entitle the judgment creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by i^Q judgment debtor; pro- vided that no proceedings shall be taken to have the benefit of such charge 'until after the expiration of six calendar months from the date of- such order" (s. 14). The proviso at the end of the section does not operate so Dividends may be as to prevent a creditor from procuring a stop order, under ''°w^- which the debtor may be restrained from receiving the dividends payable within the six months ; though no steps can be taken to enforce the creditor's security untU the ex- piration of the six months. Watts v. Jefferyes, 3 Mac. & Gr. 372; see Bristed v. Wilkins, 3 Ha. 235. A chancery judge is not a judge of one of the superior courts at Westminster within the meaning of this section. Order of judge to be made in the first instaDce ex parte, and on no- tice to tlie banlc or company to operate as a dis- tringas. Has relation back to order nisi. Priorities between mortgagees and creditors having charging orders. Interest which may be charged. 472 Judgments, Decrees and Charging Orders. Miles V. Presland, 4 M. & C. 431. But under it, and by virtue of the 3 & 4 Vict. c. 82, s. 1, he has jurisdiction in matters depending in courts of equity. Marq. Hastings v. JBeavan, 10 W. R. 206. The last cited act recites the 1 & 2 Vict. c. 110, s, 14, and extends its provisions to the dividends and interest of the above-mentioned securities, and also to stock standing in the name of the accountant-general and dividends on it, in which the judgment debtor has an interest. By the 1 & 2 Vict. c. 110, to prevent any judgment debtor from transferring any stock or shares, &c. authorized to be charged, every charging order of a judge shall be made in the first instance ex parte, and without any notice to the judgment debtor, and shall be an order to show cause only ; and such order shall restrain the transfer of such stock or shares in the meantime, and until such order shall be made absolute ox discharged; and no disposition of the judgment debtor in the meantime shall be valid or effectual as against the judgment creditor; and unless the judgment debtor shall show sufficient cause to the contrary, the order shall be made absolute, or may be discharged or varied (s. 15). Arresting the judgment debtor is a relinquishment of the benefit of the charge (s. 16). By the 3 & 4 Vict. c. 82, the provisions of the 1 & 2 Vict. c. 1 10, shall be taken to extend to the debtor's interest in stock, &c., in remainder or re- version, and whether vested or contingent ; also if standing in the name of the accountant-general (s. 1 ). As to an ordi- nary writ of distringas on stock, see J. Wms,, Personal Prop. 189 ; Be Cross, 1 Dr. & Sm. 580. A charging order, when made absolute, has relation back to the making of the order nisi. Haly v. Barry, L. R., 3 Ch. 452, explaining Warburton v. Hill, Kay, 470. As between judgment creditors and mortgagees of stock or other property capable of being affected by a charging order, a mortgage subsequent to the judgment but prior to the charging order, though without notice of the mortgage to the trustees of the fund, has priority over the judgment and charging order, though the judgment creditor has given notice to the trustees. Scott v. Ld. Hastings, 4 K. & J. 633; and see Brearcliff V. Dorrington, 4 De G. & Sm. 122; Dunster V. E. Glengall, 3 Ir. Ch. R, 47 ; Beavan v. Ld. Oxford, 6 D,, M. & G. 525, 532. IVatts v. Porter, 3 E. & B. 743, is contra, in which case, however, Erie, J,, dissented from the judgment of the rest of the court. The contingent nature of the interest forms no objection to the charge if the property is of a nature properly charge- able. Baker v. Tynte, 2 E. & E. 897. Charging Orders. 473 A government pension cannot be charged ( Taylor v. pensions, Sto. Turnbull, 4 H. & N. 495), nor a pension granted by the East India Company. Morris v. Manesty, 7 Q. B. 674. "The Companies Act, 1862" (25 & 26 Vict. c. 89), s. 20, shares m com- enacts that notices of trusts shall not be entered on the tf™'^es!°''' ^^ register of companies incorporated under that act, and the court will not set aside a charging order on shares in such a company, though the holder is in fact a trustee only. Cragg v.TayZor,L.E.,l Ex.148; see 5. C.,L.E.,2Ex. 131. As to banking companies, see Macintyre v. Connell, 1 Sim., N. S. 225; and as to mining companies on the cost-book principle, see Nicholls v. Rosewarne, 5 Jut., N. S. 1266. ( 474 ) LANDLORD AND TENANT— LEASE. Ch. 1. — Ageeements for Leases, p. 474. Ch. 2. — Of Leases in general, p. 479. Ch. 3. — Op Lessors and Lessees, p. 483. Ch. 4. — Leases under the Settled Estates Acts, p. 487. Ch. 5. — Parcels — Term — Kent, p. 49L Ch. 6. — Covenants in Leases and Proviso for Re- entry, p. 495. Sec. L — To pat Rent, Rates and Taxes, p. 495. Sec. 2. — To insure, p. 496. Sec. 3. — To repair, p. 497. Sec. 4. — As to carrting on Trade, p. 498. Sec. 5. — Not to assign -without Licence, p. 500. Sec. 6. — Of the Lessor's Covenants— for quiet Enjoyment, &c., p. 501. Sec. 7. — Covenants running or not running with the Land, p. 502. Sec. 8. — ^Remedy in Equity for Breach op Covenant, p. 504. Sec. 9.— Waiver of Breach op Covenant — Licence, p. 505. Sec. 10. — Proviso for Re-entry, p. 506. Ch. 7. — Assignment and Devolution of Interest of Lessor or Lessee, p. 507. Ch. 8. — Determination of Lease, p. 509. CHAPTER L agreements for leases. Generally , , ■ • . • 475 Agreement implies Title in Lessor . . . . 475 Condition Precedent . . 475 Lease or Agreement . . 475 Lease at Lam may he CeraCT'aMy— continued. Intended, Lessee in Possession . . • • 476 Committing Breach of Covenant .. •■ 476 Insolvent circumstances Agreement in Equity 476 of intended Lessee . . 477 Option to take . . . . 476 ' Sanlmptcy of.. . . 477 Generally — continued. Agreement as to Under- lease 477 Yearly Tenancy . . 477 Tenancy just expired. . Vll Previsions as to Re- pairs, ^c 478 Form, of Lease to he granted 478 Usxial Covenants and Provisions .• ..478 Agreements for Leases. 475 Forr, m of Lease, Sj'o.— continued. Not to assign mitlwut Licence 478 To repair 478 Pamage hy Mre 478 Restrictive of particw- lar Trades . . 478 Lessee becoming Ranh- rnpt . . 478 Covenants by Ti-ustees . 478 Generally.] Under the previous title, "Contracts," p. 64, the chief points relating to agreements generally and the doctrine of the court with respect to specific performance have been considered. An agreement to grant or take a lease must either be in writing, under the Statute of Frauds, or in part performed, notwithstanding the leases may be for a term not exceeding three years, and, if granted by parol, vaUd. Edge v. Strafford, 1 Cr. & J. 391. The reader is referred to tit. " Vendor and Purchaser," which treats of the requisites of contracts under that statute. In the present title it is assumed that the person, whether intended lessor or intended lessee, who claims the aid of the court, does so under a contract binding under the statute, and such also as equity, according to its general principles, will enforce. A person who contracts to grant a lease assumes to have Agreement im title to do so, and if he has not he will be liable to an action i2sor!'"° *" at the suit of the intended lessee. Stranks v. St. John, L. R., 2 C. P. 276 ; see Lock v. Furze, L. E., 1 C. P. 441. Where there is a condition precedent to the right to enforce condition proce- specific performance of an agreement to take a lease, the ''""" condition must be performed before the right can be enforced in equity. Counter v. Macpherson, 5 Moo. P. C. 83. It is sometimes difficult to determine whether an instru- LeMe or agree- ment is a lease or a mere agreement for one. This depends ™™ ' upon the intention of the parties as expressed in the instru- ment. Poole V. Bentley, 12 Ea. 168; Doe v. Powell, 7 M. & Gr. 980. The cases on the subject are not, however, altogether reconcileable with each other. Where A. agreed Lease. to let and B. to take, it was held to be an actual lease, these being words of present demise. Poole v. Bentley, sup.; see Staniforth v. Fox, 7 Bing. 592; Doe v. Ries, 8 Bing. 178. Even where the preparation of a future lease is pro- vided for, an agreement that the lessee shall enter and pay rent is a present demise. Pinero v. Judson, 6 Bing. 206; see Doe v. Benjamin, 9 A. & E. 644; Anderson v. Mid. E. Co., 3 E. & E. 614. On the other hand, the instrument Agreement. 476 Landlord and Tenant— Lease. Lease at law may be agreemeat iu equity. Option to take. Intended lessee in possession. Expenditure. Notice to quit by lessor. Tenant in posses- sion committing breach of cove- nant. will operate as an agreement only where there is an express stipulation to that effect. Perring v. Brook, J Moo. & R, 510. So where some future act is to be done before the' relation of landlord and tenant is established. Doe v. Ash- burner, 5 T. E. 163; see Bichnell v. Hood, 5 M. & W. 104; Doe V. Clarhe, 7 Q. B. 211; Rawson v. Eicke, 7 A. & E.' 451; Doe V. Foster, 3 C. B. 215. But although an agreement may amount to an actual lease at law, it will be treated as an agreement in equity if a fur- ther instrument be necessary to carry out the intentions of the parties. Fenner v. Hepburn, 2 Y. & C. 1 59. An agree- ment for a lease for seven, fourteen or twenty-one years gives the option to the lessee alone. Price v. Dyer, 17 Ves. 363. Where there was an agreement for a three years' tenancy, with, at the expiration of that term, an agreement to grant a lease for a further term of seven, fourteen or twenty-one years, and the representatives of the lessee occu- pied for four years after the expiration of the three years without asking for a renewal, it was held that they were nevertheless entitled to such renewal. Moss v. Barton, L. E., 1 Eq. 474; Buckland v. Papillon, L. E., 2 Ch. 67; see Bogg v. Midland R. Co., 36 L. J., Ch. 440. It sometimes happens that the intended lessee is let into possession of the premises which are to be demised, under an agreement only, but referring to the stipulations of the intended lease, the preparation of the lease being deferred. In such cases it becomes a question, and often one of diffi- culty, what particular stipulations are to be in force. See Bowes V. Croll, 6 E. & B. 255; Bennett v. Ireland, E., B. & E. 326; Doe v. Amey, 12 A. & E. 476, post, p. 481. Money expended on property agreed to be demised, and which the intended lessor agrees to repay if no lease be granted, is a lien upon his interest in the property. Mid- dleton y. Magnay, 2 H. & M. 233. Where the landlord refuses to grant the lease after the tenant has been in possession under a valid agreement, and gives the tenant notice to quit and brings an action of eject- ment upon it, the tenant will be entitled to an injunction against the action and specific performance of the agreement. See Paine v. Coombs, 1 D. & J. 34; Davis v. Shepherd, L. E., 1 Ch. 410. Equity will not, however, in every case decree specific performance at the instance of a tenant who has been in possession under an agreement for a lease, if, during such possession, he has committed breaches of the covenants to be contained iu the lease, for which the landlord would have been entitled to re-enter if the lease had been executed. Hill v. Barclay, 18 Ves. 63; Lewis v. Bondy Generally. 477 18 Bea. 85; Gregory v. Wilson, 9 Ha. 683. But iu such How court acta, cases the court must be quite satisfied that breaches of cove- nant have been committed and have not been waived ; and it may be observed that very generally at the present day the practice is to decree performance, the lease to be ante- Antedating lease. dated, so as to bear date at the time it ought to have been executed, and on the breach of covenant, if any, the lessor may proceed at law. Paine v. Coombs, 1 D. & J. 34 ; Rankin V. Lay, 2 D., F. & J. 65 ; Poyntz v. Fortune, 27 Bea. 393. In such cases the tenant must admit that the lease was executed on the day it bears date. As to the necessity of this, see Shaw V. Kay, 1 Ex. 412, post, p. 493. The insolvent circumstances insolvency or and continuing embarrassments of the intended lessee are tatendea'iraseB. matters of great weight in a question of specific performance of an agreement for a lease. See O'Herlihy v. Hedges, 1 Sch. & L. 123; Buckland v. Hall, 8 Ves. 92; Neale v. Mackenzie, 1 Ke. 474; Pearson v. Knapp, 1 M. & K. 312; Price V. Assheton, 1 Y. & C, Ex. 441 ; Plunket v. Dease, 10 Ir. Eq. Rep. 124. The insolvency of the intended lessee is no answer to a bill by his assignee, where there is no evidence that the agreement was made out of considerations personal to the former. Crosbie v. Toohe, 1 M. 8s K. 431. An agreement for a lease is in general of an assignable nature {ante, p. 78), and even the bankruptcy of the intended lessee would not prevent his interest passing to his assignees (and their vendee) under the Bankruptcy Act, 1849. See ss. 141, 142, and Act of 1861, s. 131 ; Buckland y. Papillon, L. R., 2 Ch. 67; see Morgan v. Rhodes, 1 M. & K. 435, and the Act of 1869, 32 & 33 Vict. c. 71, particularly s. 4, definition of " property," and ss. 15, 22, 25. As to the assignment of an agreement for a lease which is to contain a covenant against assignment without licence, see ante, p. 78, and Dowell V. Dew, 12 L. J. (N. S.) Ch. 158, 165. A person who enters into an agreement for an underlease Agreement to has constructive notice of all usual covenants in the original '*'"' nndericaae. lease; but it may be doubtful whether he has such notice of unusual covenants. Flight v. Barton, 3 M. & K. 282. In this case it was held that a vendor of an underlease, who is informed by the purchaser of the nature of the business which he meant to carry on, against which there is a pro- hibitive covenant in the original lease, must state that fact, or he will by his silence be held to represent that there is no such covenant. A contract for a tenancy from year to Tenancy from jcar year will not be enforced {Clayton v. Illingworth, 10 Ha. '"J"'""'. 451), nor an agreement to grant or assign a lease when the term has expired. Walters v. Northern Coal Co., 5 D., Term expired. M. & G. 629, 639. 478 Landlord and Tenant — Lease. Provisions as to repairs, &c. Usual covenants aud provisions. Covenant not to assign witliout licence. To repair. Uamage by Are. Restraint of trade. On lessee be- coming bankrupt. Covenant by trustees. If it be intended tiiat repairs shall be done by one party or the, other prior to the granting of the lease, there should be clear and express provisions to that effect. In the absence of any express agreement on the subject, a person who agrees to ta,ke a house must take it as it stands, and cannot call on the lessor to put it into a condition which makes it fit for living in. Chappell v. Gregory, 34 Bea. 250. But where the intended lessor does agree to put it into repair or to finish It, he must perform his agreement in a proper manner or the intended lessee will not be bound. Tildeslev v. Clarkson, 30 Bea. 419. " Form of Lease to be granted.'] The court does not usually, in making the decree for specific performance, give any special directions as to the covenants to be inserted in the lease. See Seton on Decrees, 620; Onions v. Cohen, 2 H. & M. 354; Beadel v. Pitt, 11 Jur., N. S. 152. If the parties cannot agree, the lease is settled by the chief clerk, subject to an appeal to the judge. Jenkins v. Green, 27 Bea. 440; Parish v. Sleeman, 1 D., F. & J. 326. An agreement for a lease should, and usually does, state what covenants are to be contained in the lease. Sometimes the clause as to this is general, merely specifying that all common or usual covenants shall be inserted; and although an agree- ment for a lease may not provide that the lease shall contain usual covenants, each party is entitled to have such cove- nants inserted as are incidental to and necessary to protect the rights given or reserved to him. See Church v. Brown, 15 Ves. 258; Blahesley v. Whieldon, 1 Hare, 179, 181. ■ Under an agreement for a lease to contain common and usual covenants, the lessor is not entitled to a covenant re- straining assignment or underletting without licence. Church v. Brown, 15 Ves. 258; Brown v. Raban, ib. 528; Buck- land v. Papillon, L. R., 1 Eq. 477. A covenant to repair, though not qualified by the words " damage by fire excepted," is a usual covenant. Kendall v. Hill, 6 Jur., N. S. 968; Sharp V. Milligan, 23 Bea. 419. Covenants restraining the carrying on of particular trades in trading localities are not usual covenants. Propert v. Parker, 3 M. & K. 280; Wil- braham v. Livesey, 1 8 Bea. 206 ; see Bennett v. Womack, 7 B. & C. 627. In an agreement to grant a lease of an hotel with usual covenants, the court authorized a proviso for re-entry on the lessee becoming bankrupt. Humes v. Burnett, 27 Bea. 500. Trustees granting or renewing leases under agreements are, as a general rule, only bound to enter into covenants against incumbrances. Worley v. Frampton, 5 Ha. 560. Form of Lease. 479 But to the extent of their beneficial interest, however, if they have any, they are bound to enter into such covenants as the person whom they represent would have been bound to enter into. Page v. Brown, 3 Bea. 36. CHAPTER II. OP LEASES IN GENERAL. Leases for Terms certain, not Tenancies from Tear to being from Year to Tear Tear 481 Generally .. ..479 Entry under Aqree- Bidlding Leases . . 479 ment . . 481 Underlease — Assign- Molding over — and pay- ment 479 ment of Rent 481 Licence 480 Assignable 481 Tenant cannot dispute Determination of 481 Landlord's Title . . 480 Notice .. 481 Loss of Lease .. . . 480 Statute of Frauds .. 480 Tenancy at Will 481 Exceeding three Tears Horn created . . 481 Not exceeding three Before Payment of Rent 481 Tears .. ..480 Assignment 482 If exceeding three Determination of 482 Tears must he hy By Death 482 Deed 480 Operating as Agree- Tenancy at Sufferance 483 ment 480 Blow arises 482 •Leases for Terms certain, not being from Year to Year.] Generally. A lease of property of any kind capable of being held on lease may be, of course, for any term which the lessor (being able) is willing to grant and the lessee is willing to accept. In ordinary cases leases reserving rent are not granted for terms exceeding ninety -nine years, and then only in the case of leases at a ground rent, where the lessee, in effect, pui'- chases the term. Where the ground on which a house is to BuUding leases. be erected is demised for building purposes, the lessee, in general, has it rent free for two or three years, and for the remainder of the term at a ground rent. Very commonly, at aU events in the neighbourhood of London, if the builder can sell his interest in the newly-erected house before he takes up the lease, he does so. The lease is then granted by his direction, by the ground landlord to the purchaser direct. An underlease is a lease by a lessee for some part of his underlease. own term. If, through inadvertence, the lessee's whole term Assignment. 480 Landlord and Tenant — Lease. Licence not a lease. be assigned, it will nevertheless be construed to be an under- lease to effect tbe intention of the parties {Pollock v. Stacey, 9 Q. B. 1033), though there will be no right to distrain for the rent, as there is no reversion. See Preeee v. Corrie, 5 Bing. 24; Beardman v. Wilson, L. R., 4 C. P. 57. A licence, though for a term and at a rent, is distinguish- able from a lease. Ward v. Day, 4 B. & S. 337; see Bird v. G. E. R. Co., 19 C. B., N. S. 268. A mere licence, though under seal, is revocable ( Wood v. Leadbitter, 13 M. & W. 838; see Hyde v. Graham, 1 H. & C. 593), and is determinable by an assignment of the subject-matter in respect of which the privilege is to be enjoyed. Coleman V. Foster, 1 H. & N. 37. While the relation of landlord and teiiant subsists, the tenant cannot dispute his landlord's title in equity ( White v. Foljambe, 11 Ves. 344; Att.-Gen. v. L. Hotham, 3 Russ. 415; Hawhsbee v. Hawksbee, 11 Ha. 230; Langford v. Selmes, 3 K. & J. 220) any more than he can at law. But he may show that his interest has determined, lb. A lessor who has lost his counterpart has a right to a dis- covery from his tenant, and the tenant refusing to permit a copy of his lease to be made on the landlord's application and at his expense must pay the costs of the bill of discovery. Perry v. Newenham, 1 Mol. 72. By the Statute of Frauds (29 Car. 2, c. 3), leases for terms exceeding three years were required to be in writing, signed by the parties or their agents authorized hy writing, otherwise they had the effect of leases at will only (s. 1), or from year to year after entry under it. Doe v. Bell, 5 T. E. 471, post, p. 481. Leases for periods not exceeding three years from the making might be verbal if the rent reserved amounted to two-thirds of the full improved value (s. 2). If exceeding thr.c Now, leases required by law to be in writing i e. leases years must be by exceeding three years from the making, must be by deed. '^^^- 8 & 9 Vict. c. 106, s. 3. But the leases mentioned in sect. 2 of the Statute of Frauds are not affected and may still there- fore be verbal or in writing not under seal; and leases for more than three years, though not by deed, may nevertheless be valid as agreements to grant leases. Bond v. Rosling, IB & S. 371; Tideyy. Mollett, 16 C. B., N. S. 298; Parker v. Taswell, 2 D. & J. 559; overruling Stratton v. Pettitt, 16 C. B. 420; and see Tress v. Savage, 4 E. & B. 36. Tenancies from year to year and for less terms will be considered separately. The demise of an incorporeal hereditament must be by deed. Bird v. Higginson, 6 A. & E. 824. Tenant cannot dispute his land- lord's title. Loss of lease. Statute of Frauds. Exceeding three years. Kot exceeding^- three years. Operating as agreements. Incorporeal here- dituments. Tenancies from Year to Year, 481 Tenancies from Year to Year.] A tenancy from year wimt. to year ai'ises either by express agreement, which may be verbal, or by implication; thus where a person enters under a Entry, void lease or under a contract to take a lease (Doe v. Bell, 5 T. R. 471), or holds over or continues in possession after Holding over. the determination of his tenancy (see Bishop v. Howard, 2 B. & C. 100; Mayor of Thetford v. Tyler, 8 Q. B. 95; Oakley v. Monck, L. R., 1 Ex. 159), and pays rent with Ana payment ot reference to a yearly holding (per Parke, B., Braythwaite ''™'' V. Hitchcock, 10 M. & W. 497; Tress v. Savage, 4 E. & B. 36), a tenancy fiom year to year will be created. As a general rule, a person who enters uuder an agreement for a lease, which is to contain certain stipulations, and pays rent, is a yearly tenant, subject to such stipulations. Doe v. Amey, 12 A. & E. 476. A tenancy from year to year is assignable. Whether it Assignable. must be assigned by deed, though it may be created by parol, is not altogether clear from the wording of the 8 & 9 Vict, c. 106, s. 3, enacting that an assignment of a chattel interest, not being copyhold, in any tenements or hereditaments, and surrender in writing of any interest in any tenements or hereditaments, not being a copyhold interest and not being an interest which might by law have been created without writing, shall be void at law unless made by deed. This may in effect put an assignment and a surrender upon the same footing, in which case either by parol would be good, if the original lease could have been created by parol, or this con- struction may be applicable to surrenders only. Cons, the observations, Chitty on Contracts, 8th ed., p. 306. The tenancy may be determined by effluxion of time, where by Determination, express agreement it is to cease at a fixed period, or by sur- render, or by act and operation of law, like any other tenancy surrender. (see post, Ch. VII.); or by half-a-year's notice to quit, ex- Notice. piring at the end of the first or some subsequent year of the tenancy (Doe v. Smaridge, 7 Q. B. 957), unless some other notice be agreed upon. A tenancy from year to year is not to be considered as a continuous tenancy, but as commencing every year. Gandy v. Jubber, 5 B. & S. 78. When a tenancy from year to year arises under an express agreement, the agreement may of course contain stipulations similar to the covenants contained in ordinary leases, having regard to the more limited duration of the term. Tenancy at Will.'] A tenancy at will is an estate de- what. terminable at the will either of the landlord or tenant. Co. Lit. 55 a. It may be created by agreement. Richardson f. how created, Langridge, 4 Taun. 128; Bayley v. Fitzmaurice, 8 E. & B. 482 Landlord and Tenant — Lease. Permission to occupy. Assignment. Determination, By landlord. 679; 9 H. L. C. 78. A mere permissioQ to occupy creates a tenancy at will. Doe v. Wood, 14 M. & W. 682. So it may be created by implication : as where a person enters into possession under an agreement to take a lease. Saun- ders V. Musgrave, 6 B. & C. 524. But when rent is paid, a tenancy from year to year is in general created {ante, p. 481); and if a person enters into possession under a contract to purchase, he will be tenant at will to the vendor. liiffht V. Beard, 13 Ea. 210. There is no implied contract by a J?pos/e^ron""'°* vendor, who continues in possession after he has executed the conveyance, that he should hold as tenant to the pur- chaser. Tew V. Jones, 13 M. & W. 13. There may be a tenancy at will at a fixed rent, giving the lessor a right to distrain. Anderson v. Mid. R. Co., 7 Jur., N. S. 411; see Doe V. Cox, 11 Q. B. 122. A tenant at will cannot, by assigning or underletting, constitute his assignee or sub- lessee tenant to the original landlord, though a tenancy may be created as against himself. Per Patteson, J., Doe v. Carter, 9 Q. B. 865 ; see Pinhorn v. Souster, 8 Ex. 763. A demand of possession by the landlord {Doe v. Price, 9 Bing. 356; see Doe v. Cox, 11 Q. B. 122), or acts of owner- ship by him inconsistent with the relation of landlord and tenant {Doe v. Turner, 9 M. 8e W. 643; Locke v. Matthews, 13 C. B., N. S. 753), or a conveyance of his interest, of which the tenant has notice {Doe v. Thomas, 6 Ex. 858 ; see Ball v. Cullimore, 2 C, M. & K. 120), will determine the tenancy. The tenant may also determine his tenancy by notice and by giving up possession. Co. Lit. 55 b, n. (15). If after such determination the tenant remains in possession he is tenant at sufferance. Doe v. Turner, 7 M. & W. 226; aff. 9 M. & W. 643. The death of the lessor or lessee de- termines the tenancy. James v. Dean, II Ves. 391. But where there are two lessors and two lessees, the death of one lessor or one lessee does not. Co. Litt. 55 b. How arises. Tenancy at Sufferance.] A tenancy at sufferance arises where the tenant originally held by a lawful title which is at an end, and continues wrongfully to hold over (Co. Lit. 57 b; see ib. 270 b ; Doe v. Watts, 7 T. E. 83 ; Doe v. Morse, 1 Holding over after B. & Ad. 365); as where tenant for years, or from year to tenancy expired, j^^t^^ or at will, holds over after his term has expired or in- terest been determined, without any fresh agreement or any rent being paid. See Doe v. Turner, 7 M. & W. 226, sup.; Not assignable. Patrick V. D. of Beaufort, 6 Ex. 498. A tenancy of this kind cannot be assigned, for one tenant at sufferance cannot rnake another. Per Ellenborough, C. J., Thunder v. Belcher, 3 Ea. 451. A tenant at sufferance may maintain trespass 'By tenant. Death. Lessors and Lessees. 483 against a wrongdoer, but not ejectment. Graham v. Peat, 1 Ea. 244 ; see Crisp v. Barber, 2 T. E. 749 ; Randall v. Stevens, 2 E. & B. 641 . If the owner assent to the holding it becomes a tenancy at will. Doe v. Turner, 7 M. & W. 646. As to leases under Powers, see that title. CHAPTER III. OF LESSORS AND LESSEES. In general . . . . . . 483 Ma/i-ried Women . . . 485 Joint Tenants and Tenants Aliens . 485 in Comman . , . . 483 Tenants in Tail . 485 Copyholders .. . . . . 484 Tenants for lAfe . 486 JExecittors— Trustees . . 484 Tenant by the Curtesy, ^'c. . 486 In/ants 485 Corporations . 487 Confirmation . . . . 485 Universities — Colleges . 487 Lunatics . . . . . . 485 Ecclesiastical Leases . 487 In considering the subject of leases, the ordinary form of a lease and the arrangement of its several parts, indicate the order in which it may most conveniently be considered. In in general, general any person can be a lessor or lessee with the excep- tions and qualifications hereafter mentioned. Joint tenants Joint tenants and tenants in common may either join or sever in granting ^^^ '^"^'^ in leases, and such leases take effect according to their interests. Bac. Abr. Joint Ten. and Ten. in Com. (H. 1). In leases by tenants in common each is entitled to his proportion of the rent, for that is capable of being severed, but not of any reservation that cannot be severed. Lit. s. 314; Thompson v. Hakewill, 19 C. B., N. S. 713. And on the death of one tenant in common his right to such proportionate share of the rent devolves upon his representatives. Beer v. Beer, 12 C. B. 60. Where joint tenants join in one demise at one single rent, the interest survives, and the survivor is entitled to the whole rent {Hensteads Case, 5 Rep. 10 b; Doe v. Summer- sett, 1 B. & Ad. 135), survivorship being one important in- cident of joint tenancy. Ante, tit. "Joint Tenants," &c. But if one of two joint tenants alone grants a lease, this is binding in respect of his share on the survivor, and the rent goes to the representative of the lessor. Co. Lit. 191 b. Where a covenant with tenants in common is in relation to some subject-matter of an indivisible nature, for instance, a covenant to repair, all the tenants in common must join in the action, and on the death of any, his representatives with the survivors. Foley v. Addenbroke, 4 Q. B. 197; Thomp- ii2 484 Landlord and Tenant — Lease. By copyholders. Term authorized rot to be ex- ceeded. Leases and Sales of Settled Estates Acts. By executors. By trustees. son V. Hakewill, 19 C. B., N. S. 713. With respect to covenants which may be joint or several according to cir- cumstances, see ib., the cases ante, p. 69, and the observa- tions, J. W. Smith's Land, and Ten., ed. 1866, p. 63 et seq. It has already been mentioned {ante, p. 212) that a copy- holder cannot, without incurring a forfeiture, grant a lease for more than one year, unless by special custom or by licence from the lord himself (Coke, Cop. s.44; Luttrell v. Weston, Cro. Jac. 308 ; Frosel v. Welsh, ib. 403), or the steward under a special authority or by custom; and see Doe v. Wil- son, 11 Ea. 56; Scriv. Cop. 459. The term authorized must not be exceeded, or the lease will be void in toto {Jackson v. Neal, Cro. El. 394), though it need not be for the whole of the permitted term. Goodwin v. Longhurst, ib. 535. It may be assigned without further licence. Johnson v. Smart, 1 Roll. Ab. 508, pi. 14. The lease, though void for want of a licence, is binding on the parties to it. Wells v. Partridge, Cr. El. 469; Salisbury v. Hurd, Cowp. 481. Nothing in the "Leases and Sales of Settled Estates Act," 19 & 20 Viet, c. 120 {post), is to aifect or prejudice the rights of lords of manors, ib. s. 43. And by the amending act, 21 & 22 Vict, c. 27, the powers in these acts to authorize and to grant leases shall be deemed to include powers to lords of manors to give licences to their tenants to grant leases to the same extent and for the same purposes as leases may be authorized or granted of freehold hereditaments under these acts. Lb. s. 3. A lease for a year by a copyholder, with a covenant to grant a new lease at the end of each year during a certain term, does not create a forfeiture. Lufkin v. Nunn, 11 Ves. 170; see 4 Byth. Conv. by Sweet, 232 et seq. It has already been mentioned that leases by executors or administrators are, in general, valid when beneficial to the parties interested in the testator's or intestate's estate. See ante, p. 255; Dyot v. Morgan, cited 13 Ves. 268. In the event of the death of a sole executor, the legal right to the rent devolves upon his personal representatives, not upon the parties beneficially entitled or upon the administrators de bonis non of the original testator or intestate. Baily v. Drew, 2 Lev. 100; Davie v. Drury, 1 Ver. 94. Of course, . however, if the lessor's estate be assigned to the parties bene- ficially interested, the right to the rent, &c. will follow. In Nay lor v. Arnitt (1 R. & My. 501) it was held, that a trustee of lands, in which there were successive life estates, might grant a reasonable lease for a term of years (in the case cited, ten years), without an express power for that purpose. But in Wood v. Patteson (10 Bea. 541, 544), Lord Langdale observed, in substance, that if trustees unauthorized might Lessors and Lessees. 485 grant a lease for ten years, they might for sixty years, and that he should be afraid to act upon Naylor v. Arnitt, and it was not followed in Re Shaw's Trusts, L. R., 12 Eq. 124. If trustees take a lease they and not the cestuis que To trustees. trust -will be liable, at la-jv and in equity, for the rent and performance of the covenants. Walters v. N. Coal Mining Co., 5 D., M. & G-. 629. A lease by an infant is not void, luiants. only voidable and capable of confirmation on his attaining his majority. Lit. s. 547; Stori/ v. Johnson, 3 Y. & C, Ex. 586; Slator V. Brady, 14 Ir. C. L. R. 61 ; Same v. Trimble, ib. 342. The rule is the same, although the lease is by deed {Zouch V. Parsons, 3 Burr. 1794), and a voidable deed is valid until some act is done to avoid it, and those -v/ho claim in opposition to the deed must show that such an act has been done. Allen v. Allen, 2 Dr. & War. 307. If the in- fant receives rent after attaining his majority, this confirms the lease. Ashfield v. Ashfield, Wm. Jones, 157. But the Confirmation hy lease of an infant, to be capable of confirmation, must be his receipt of reuu own personal act, not that of an agent. Doe v. Roberts, 16 M. & W. 778. By the 11 Geo. 4 & 1 Will. 4, c. 65, ss. 16 and 17, the Court of Chancery may authorize the granting of leases of infants' property, and may empower infants to grant renewals of leases. And see the Settled Estates Act, s. 36, post. Leases to infants, like leases by infants, are voidable only on their attaining their majority ; they may avoid or confirm them. i. ^ N. W. R. Co. v. 3PMichael, 5 Ex. 114, 128; see Holmes v. Blogg, 8 Taun. 35. By the 11 Geo. 4 & 1 Will. 4, c. 65, s. 12, under the direction of the Court of Chancery, leases to which infants or femes coverte are entitled may be surrendered and renewed. As to leases by guardians of infants, see ante, p. 295. Committees of Lunatics, lunatics may, under an order of the Lord Chancellor, sur- render leases for lives or years, and accept new leases. 16 6 17 Vict. c. 70, s. 113. A married v^oman, having separate Married women, estate, may be a lessee. Gaston v. Frankum, 2 De G. & S. 561 ; and see ante, p. 371 et seq. As to leases by a husband entitled in right of his wife, see post, p. 486. By the 7 & 8 Vict. c. 66, s. 5, an alien may take and hold Aliens. lands, houses and tenements for the purpose of residence or of occupation by himself or servants, or for the purpose of any business, for any term not exceeding twenty-one years. See now 33 & 34 Vict. c. 14. Originally leases by tenants in tail were not binding on Tenants in tail. their issue. By the 32 Hen. 8, c. 28 (rep. 19 & 20 Vict. c. 120, s. 35), they were rendered binding on the issue, if by deed (see Osborn v. D. of Marlborough, 12 Jur., N. S. 559), and for not more than twenty -one years or three lives 486 Landlord and Tenant — Lease, Confirmation. Tenanta for life. Tenant by the curtesy in dower in right of wife. , May demise for not more than twenty-one yeara without applica- tion to the court. Section Is not retrospective. Against whom leases valid. By husband and wife. from the making thereof. Now by the operation of the 3 & 4 Will. 4, c. 74, ss. 15, 40 and 41 {ante, pp. 194, 198), leases by tenants in tail for terms not exceeding twenty -one years from the date, or twelve months from the date at rack rent or not less than five-sixth parts of rack rent, are valid against all persons whom the tenant can bar, and do not require enrolment. A voidable lease by tenant in tail may be con- firmed by a subsequent heir in tail, so far as regards his own interest, by acceptance of rent. In the case cited the rent had been received for ten years. Doe v. Jenkins, 5 Bins. 469. ^ A tenant for life may grant leases for his own life. Also by the 19 & 20 Vict. c. 120, the Leases and Sales of Settled Estates Act, any person entitled to the possession or to the receipt of the rents and profits of any settled estates (post, p. 488), for an estate for hfe, or for years determinable with his hfe, or for any greater estate either in his own right or in right of his wife (unless the settlement contains an ex- press declaration to the contrary), and also tenants by the curtesy, or in dower, or in right of a wife who is seised in fee, without any application to the Court of Chancery, may demise by deed the same or any part thereof (except the principal mansion house and the demesnes thereof, and other lands usually occupied therewith) from time to time for any term not exceeding twenty-one years in possession, at the best rent without fine, the lease not to be made without im- peachment of waste, and to contain a covenant for payment of the rent and such other usual and proper covenants as the lessor shall think fit, and also a condition of re-entry on non- payment, for a period of not less than twenty-eight days, of the rent thereby reserved, and non-observance of any of the covenants or conditions therein contained, and provided that a counterpart of every deed of lease be executed by the lessee (s. 32). It is clear that the word less should have been more (than twenty-eight days). J. W. Smith, Land, and Ten. 2nd ed. p. 43 (n. 8). For other provisions of this act, see post. Chap. IV. This section only applies to settlements made after the act came in force (1st November, 1856, ss. 44, 46). Leases under this section are valid against the lessor and persons entitled under the settlement (if any), or claiming under the hus- band or wife of the lessor (s. 33), and against the wife of the lessor. 21 & 22 Vict. c. 77, s. 8. Although a lease by the husband and wife of the wife's land of which she is seised in fee may not be in accordance with this section, and not being duly acknowledged under the 3 & 4 Will. 4, c. 74, s. 79, is not valid under that act, it may nevertheless be operative if Lessors and Lessees. 487 the husbaud and wife during their lives, and the wife after the death of her husband, treat it as subsisting. Toller v. Slater, L. R., 2 Q. B. 42. For the law as to leases by husbands in right of their wives, under the 32 Hen. 8, c. 28, see 4 Byth. Conv. by Sweet, p. 241. This act is no longer in force as to such leases, being, with respect to them, repealed by the 19 & 20 Vict. c. 120, s. 33. Municipal corporations cannot grant leases for more than Corporations, thirty-one years without the consent of the treasury (5 & 6 Will. 4, c. 76, s. 94), or, except building leases, for terms not exceeding seventy-five years, such as are mentioned in s. 96 of that act. The corporations may renew leases where there is a covenant or ancient practice to renew (s. 95). The leasing powers of the universities and colleges are universities and chiefly regulated by the Universities and College Estates "" ^^'^' Acts of 1858 (21 & 22 Vict. c. 44) and 1860 (23 & 24 Vict. c. 59). The statutes regulating ecclesiastical leases are very Ecclesiastical numerous, the principal being the 32 Hen. 8, c. 28 ; 1 Eliz. ''^''' c. 19; 13 Eliz. c. 10; 14 Ehz. cc. 11, 14; 18 Eliz. c. 11; 43 Eliz. c. 29 ; 1 Jac. 1, c. 3 ; 5 Geo. 3, c. 17 ; 39 & 40 Geo. 3, c. 41 ; 6 & 7 Will. 4, c. 20, s. 64, and several very important acts of the present reign, viz., the 5 Vict. c. 27 ; 5 & 6 Vict. c. 108; 21 & 22 Vict. c. 57 ; 24 & 25 Vict. c. 105 ; 25 & 26 Vict. c. 52. CHAPTER IV. LEASES UNDEE THE SETTLED ESTATES ACTS. Definition of " Settlement" . 488 "Settled Ustates" .. ..488 Court may authorize Leases of Settled Estates . . 488 To take effect in Possession . 488 Term — Rent Minerals— Sent Timber — Waste Proviso for Re-entry Covenants Lease of Part of Estate Surrender Preliminary Contracts Who to ie Lessor . . 488 488 489 489 489 489 489 489 489 Model Lease . . .. . . 489 Tenant for Life or greater Estate 489 Whose Consent required . . 489 Where dispensed with . . 489 Notice 490 Investment of certain Rents 490 Acts of Court .. ..490 Giiardians, Committees, ^c. 490 Married Women Incnmbrances on Estate . . Copyholds Provisions of Act in general retrospective 490 490 491 491 T^eases of Settled Estates.] By the 19 & 20 Vict. c. 120 (amended by 21 & 22 Vict. c. 77, and 27 & 28 Vict. c. 45), 488 Landlord and Tenant — Lease. Interpretation of ivords. " Settled estates.' Court may au- thorize leases of settled estates. To take effect in possession. considerable powers have been given to the Court of Chan- cery with respect to the granting of leases of settled estates. The following are the chief provisions of these acfe: — The word settlement in the act signifies any act of parliament, deed, agreement, copy of court roll, will or other instru- ment, or any number of such instruments, under or by virtue of which any hereditaments of any tenure, or any estates or interests therein, stand limited to or in trust for any persons by way of succession, including any such insti'uments affect- ing the estates of any one or more of such persons exclu- sively; and the term settled estates signifies all heredita- ments and estates or interests therein which are the subject of a settlement; and for the purposes of the act a tenant in tail, after possibility of issue extinct, shall be deemed to be a tenant for life (s. I). In determining what are settled estates, the court is to be governed by the state of facts and trusts or limitations at the time of the settlement taking effect. 21 & 28 Vict. c. 45, s. 3. All estates or interests in remainder or reversion not disposed of by the settlement, and reverting to a settlor or descending to the heir of a tes- tator, shall be deemed to be estates coming to such settlor or heir or by virtue of the settlement. 21 & 22 Vict. c. 77, s. 1. By the 19 & 20 Vict. c. 120, s. 2, the Court of Chancery in England as to English estates, and the Court of Chancery in Ireland as to Irish estates, may authorize leases of any settled estates, or of any rights or privileges over or affecting them, for any purpose whatsoever, whether involving waste or not, provided the following conditions be observed: — (1.) Every such lease shall be made to take effect in pos- session at or within one year next after the making thereof, and shall be for a term of years not exceeding, for an agri- cultural or occupation lease, twenty-one years; for a mining lease, or a lease of water, water mills, way-leaves, water- leaves or other rights or easements, forty years; and for a building lease, ninety-nine years (and repairing leases for not more than sixty years (21 & 22 Vict. c. 77, s. 2)); or where the court shall be satisfied that it is the usual custom of the district and beneficial to the inheri_tance_ to grant building leases (or other leases mentioned in this section, except agricultural leases (21 & 22 Vict. c. 77, s. 4)) for longer terms, then for such term as the com-t shall direct. (2.) On every such lease shall be reserved the best rent, payable half-yearly or oftener, without taking any fine. (3.) Where the lease is of any earth, coal, stone or mineral, so long as the person for the time being entitled to the receipt of the rent is a person entitled to work them for his own Leases of Settled Estates. 489 benefit, one-fourth part of the rent shall be reserved and in- Rent, vested, and otherwise three-fourth parts thereof, and in the lease provision shall be made accordingly, by the appoint- ment of trustees or otherwise, as the court shall deem expedient. See sect. 23, post, p. 490. (4.) No such lease shall authorize the felling of any ti'ees. Timber, unless necessary for the purpose of clearing the ground for Waste. any buildings, excavations or other works authorized by the lease. (5.) Every such lease shall be by deed and the lessee Proviso for re- shall execute a counterpart thereof, and every such lease ™''''' shall contain a condition for re-entry on non-payment of the rent for a period not less than twenty-eight days after it becomes due. The leases may contain special covenants (19 & 20 Yict. Covenants. c. 120, s. 3). Parts of settled estates may be demised, and ^s'StL"' ""^ °' from time to time (s. 4) leases (^whether granted in pursuance surrender of of the act or otherwise (21 & 22 Vict. c. 77, s. 5) ) may be teases. surrendered and new leases granted (s. 5). Contracts pre- Preliminary con- liminary to leases may be authorized and varied (s. 6). '™'''^- Particular leases may be authorized, or leasing powers vested Leasing powers in trustees (ss. 7, 10). Leases under these sections were ^'J"?;"^' formerly required to be settled in chambers ; Re Proctor, 26 L. J., Ch. 464 ; or in conformity with a model lease. Re E. Jersey, 9 W. E. 609. But this practice is altered by the 27 & 28 Vict. c. 45, unless the parties desire such a condi- tion, or there is some special reason for it (ss. 1, 2). Evidence Evidence as to as to the nature, value and circumstances of the estate, and '^^^' *"^- the terms on which the leases ought to be authorized, is to be produced (19 & 20 Vict. c. 120, s. 8). The court shall Lessor. direct who is to be lessor, and the lease shall operate as if he were absolutely entitled to the estate, and had immedi- ately afterwards settled it according to the settlement (s. 9). Sections 11 to 15 relate to sales under the act. Any tenant for life or greater estate may apply to the Wio may apply. court (s. 16). See Grey v. Jenkins, 26 Bea. 351. Subject to s. 18, where there is a tenant in tail of full age, the appli- Whose eonsent cation must be with the consent of the tenant in tail, or the '■^t"'^'"'- first tenant in tail under the settlement, and of the persons having prior estates, and of trustees having a prior estate on behalf of any unborn child. In other cases the application must be with the consent of persons having beneficial in- terests, and of trustees having an estate on behalf of any rmborn child (s. 17). But unless there shall be a person wiiere petition entitled to an estate of inheritance whose consent has been "?Z iw sranted ._ iiij..iii ,... , -, witliout consent. refused or cannot bo obtained, the petition may be granted, saving the rights of non-consenting parties (s. 18). Where .490 Landlord and Tenant —Lease. Consent refused. "Where applica- tion has been refused by par- liament. Notice on settle- ment. Investment of rent. Acts which court may not autho- rize. Acts of court, ■where valid. Costs. Bules. Evidence of ex- ecution. Guardians. Committees. Trustee in bank- ruptcy. Married woman. Examination of. Charges not to there is a power in the settlement to the tenant for life to grant a lease of the kind authorized by the act, with the con- sent of a person, the court will not under the act, at the instance of the tenant for life, authorize a lease when such consent has been refused. Re Hurle, 11 Jur., N. S. 78. Notice is to be served on trustees and others who, in the opinion of the court, ought to be served (s. 19). Notice of application is to be given in such newspapers as the court sha,ll direct (s. 20). No application is to be granted where a similar application has been refused by parliament (s. 21). Notice of the exercise of the powers is to be placed on the settlement, or otherwise as the court shall direct (s. 22). That part of the rent mentioned in sect. 2 (3), ante, p. 489, may be paid to trustees or into the bank of England or Ireland, and applied — (1) in the redemption of land tax or incumbrances ; or (2) the purchase of other hereditaments ; or (3) the payment to any person absolutely entitled (ss. 23, 24). Until the money can be so applied, it shall be invested (s. 25). The court may exercise these powers repeatedly, but no powers shall be exercised if there is an express de- claration or manifest intention apparent from the settlement or extrinsic circumstances that they should not be (s. 26). The court is not to authorize any act which could not have been authorized by the settlor (s. 27). The acts of the court in professed pursuance of the powers of the act are not to be invalidated upon the ground that the court was not em- powered, but leases have no effect against any person whose concurrence or consent ought to have been, but was not, ob- tained (s. 28). See Re Thompson, Johns. 418. Sect. 29 provides for costs, and sects. 30 and 31 authorize and relate to rules to be made. See the rules, Shelf E. P. St. 679, ef seq. As to sects. 32, 33, see ante, p. 486. The execution of any lease by the lessor is evidence of execution by the lessee (s. 34). Guardians may apply on behalf of infants, com- mittees of lunatics, and assignees (trustee) of bankrupts (s. 36). A married woman, applicant under the act, is to be examined apart from her husband. No clause restraining anticipation shall prevent the court from exercising its powers under the act (s. 37). The examination is to be by the court, or by a solicitor appointed by the court (s. 38) ; or where the married woman is resident out of the jurisdiction, by any other person so appointed. 21 & 22 Vict. c. 77, s. 6; see Re Foster, 1 D. & J. 386. Subject to such examination, married women, whether of full age or infants, may make or consent to any application (s. 39). Persons are not under any obligation to make or consent to any application, or to exercise any power (s. 40). Charges, &c. on estates are not Parcels. 491 to prevent the exercise of powers in the act, but the charges affect exerotee are not to be affected (s. 41"). Tenants in tail, who by statute °'i"™- ^ , , .1 i , .'. -I • ^ Tenants in tall cannot bar the entail, or where the reversion is vested in the restrained from crown, cannot be authorized to grant leases beyond twenty- ban^nK ™'^- one years (s. 42). Leases of copyholds cannot be granted to copyhoias. the prejudice of the lord (s. 43). See 21 & 22 Vict. c. 77, s. 3, ante, p. 484. The provisions of the 19 & 20 Vict. c. 120 f„"'^'„'^™f °4;^^' extend to all settlements, whether made before or after it speotive. came into operation, except the provisions as to demises to be made without application to the court (see s. 32, ante, p. 486), which extend only to settlements made after the act came into operation (1st Nov. 1856, ss. 44, 46). CHAPTER V. PARCELS — TEEM — RENT. Parcels 'What may he demiaed . Meference to Occupa- tion . . Words " ielonging or appertaining " Land, Woods, ^c. Messuage House Exceptions out of De- mise . . Meservations .. Surface over Mines • . boundaries ,. Term Commencement of 491 491 491 492 492 492 492 492 492 492 493 493 TerOT— continued. Interesse termini .. 493 Habendum .. 493 Impossible Date .. 493 Duration .. 493 Months . . .. 493 For Years, determina ,le on Lives .. 494 Option . . .. 494 Rent .. 494 Formal Jteservation of Rent unnecessary .. 494 Payable in advance .. 494 General Reservation .. 494 Income Tax .. 494 Parcels.] Corporeal and incorporeal hereditaments of every what may be kind are capable of being demised. But leases of the former *^°''^- species of property have principally been made the subject- matter of judicial determination. As to leases of incorporeal hereditaments, see Woodfall, L. & T. 74 et seq. The subject-matter of the demise should be clearly stated. Reference to occu- Not unfrequently parcels are described by reference to the P"''""' occupation of the lessee himself or to that of a previous tenant. These are words of identification only. And if, iu the case of a previous tenant, there has been a restriction on his right of enjoyment as tenant, for instance, on his right to use the roof of a house or shop, there must be corresponding words of restriction in the case of a fresh tenant. Mere words of reference to the occupation of the previous tenant, for instance, "as late in his occupation," are insufficient. Martyr v. Lawrence, 2 D., J. & S. 261, L. J. K. Bruce diss.; and see Doe v. Burt, 1 T. E. 701; fVilkinson v. 492 Landlord and Tenant — Lease, Words belonging or appertaining. Land, Woods, 5fc. Messuage, house. Ways. Exceptions. Demise by acreage. Surface over mines. Boundaries. Maling, 2 Cr. & J. 636; Dyne v. Kutley, 14 C. B. 122. As to the words " belouging or appertaining," and words of like import, see Kinysmill v. Millard, 11 Ex. 313; Mait- land V. Mackinnon, 1 H. & C. 607. A right, if really appurtenant to the property demised, will pass, though not expressly mentioned. Skull v. Glenister, 16 C. B., N. S. 81. As to what is included under the word "land," see Co. Lit. 4a; "woods," "wood," "trees," see Stanley v. White, 14 Ea. 832; Shep. Touch, by Pres. 94. Where trees are excepted, the lessor has a right to cut and take them away. lb. 100. The exception does not extend to fruit trees, unless specially named. Wyndham v. Way, 4 Taun. 316; Bullen V. Denning, 5 B. & C. 842. As to what are timber trees, see 4 Byth. Conv. by Sweet, 3 1 8. "Messuage {maison), or house," will pass outhouses belonging to, though not attached to, the house; also the curtilage, garden and orchard. See Doe v. Collins,' 2 T. E. 502; Scholes v. Hargreaves, 5 T. R. 48; comp. Herbert v. Thomas, 1 C, M. & R. 801. As to ways, see Kooystra v. Lucas, 1 D. & Ry. 506, and ante, tit. " Easements." An exception in a lease is always of some part of the subject-matter of the demise and of a thing in esse, and which, but for the exception, would pass with it. See Co. Lit. 47 a. A very common subject of an exception is timber. SeePannell v. Mill, 3 C. B. 625. Also mines, minerals and quarries. See Proud v. Bates, 11 Jur., N. S. 441. A reservation, strictly speaking, applies to some right or profit to arise from the subject-matter of the demise, which had previously no separate existence but is newly created. Co. Lit. 47'a; see Doe v. Lock, 2 A. & E. 743. Very often, however, the words "excepting or reserved" are used toge- ther in a lease, and frequently in the same sense. As to a reservation of the free running of water and soil coming from adjacent premises, see Chadwick v. Marsden, L. R., 2 Ex. 285. Under an agreement to demise land by acreage, except a certain number of acres, the intended lessor has the right of selection ; though under a lease the lessee may select. Jenkins v. Green, 27 Bea. 437. Where the lessor has the right it should be exercised fairly, not oppressively. lb. In a demise of surface land over mines, the mines being excepted, with power to win the minerals, the lessor is entitled to an absolute underground right of way, and the lessee is entitled to support for the surface. Proud v. Bates, llJur., N. S. 441. A tenant is bound to preserve the boundaries, and if he permit them to be destroyed so that the lessor's land cannot Term. 493 be distinguislied from Jiis, he is bound to restore them spe- cifically, or to substitute land of equal value. Att.-Gen. v. Fullerton, 2 V. & B. 263 ; Att.-Gen. v. Stephens, 6 D., M. & G. 111. Term.] A lease for years being a mere chattel interest, Commencement. may, unlike an estate of freehold, be made to commence at a future time as well as at a present or past time. Touchst. 272; see Ackland v. Lutley, 9 A. & E. 879. And a lease commencing after to commence upon the expiration of an existing lease does existtag°iei'e. not convey the reversion expectant on such lease, but an interesse termini only until the expiration of such existing lease. Smith v. Day, 2 M. & W. 684 ;. see Lock v. Furze, 19 C. B., N. S. 96. An interesse termini is the interest which a lessee has interesse termini. before he enters under his lease. Until entry he has only a qualified right. Co. Lit. 46 b. At law he cannot, until entry, exercise his fuU rights as tenant, even where the lease is a present one. He cannot, for example, maintain trespass (see Harrison v. Blackburn, 17 C. B., N. S. 678) ; but on entry his right is complete. A lease to commence at the tease to com- expiration of an existine ierm commences icAeweffr the term menceattheexpi- • 111^- f. ,• 1 1 ration or term, or expires, whether by etiiuxion oi time or by surrender or of the number of forfeiture, but a lease to commence at the expiration of the u^gj^tea™''^ number of years for whicli the existing term is granted, will not commence until after the expiration of such number of years, though the term may have previously determined. Co. Lit. 45 b. If the habendum be from the date or day of the date, and Habendum, im- there is an impossible date, as the 31st June, or no date, the p"*^'*"^ ''"f*- habendum will be from the delivery. Co. Lit. 46 b. The duration of the term is from the day of the date where there is one, but the time of execution regulates the liability of the tenant as to breaches of covenant, and he will not be liable for such breaches committed between the date and execution of the lease. Shaw v. Kay, 1 Ex. 412, per Parke, B.; Jervis v. Tomkinson, 1 H. & N. 206. The duration of the term should be certain, or be capable Duration, of being rendered certain. Bac. Ab. Lease (L. 3). Leases for diiferent terms will be good if the terms are certain; for instance, for seven years and afterwards from year to year. Brown v. Trumper, 26 Bea. 11. Where a lease is to com- mence from a day, e. g. 25th March, for a certain number of years, it does not expire until the last moment of the 25th March in the last year of the term. Ackland v. Lutley, 9 A. & E. 879. Where the term is for months, without Montiis. 494 Landlord and Tenant — Lease. Foryeara, determi- nable on lives. Option. Formal reserva- tion of rent not necessary. Hay be made pay- able in advance. To whom should be reserved. General reserva- tion. Where not re- stTved quarterly or half-yearly. specifying whether lunar or calendar, the latter must now be understood. 13 & 14 Vict. c. 21, s. 4. A lease for years, if one or more shall so long live, is a lease for the years named, determinable sooner on the death of the person or persons named. See Bac. Ab. Lease (L. 4). A lease for years in the alternative, as seven, fourteen or twenty-one years, gives the lessee only the option of deter- mining it. Price v. Dyer, 17 Ves. 363. Rent."] A formal resei-vation of rent in a lease, thongh usual, is not necessary, if it be clear that a rent is to be reserved. Woodfall, Land. & Ten. 110. The amount must be certain, or capable of being reduced to a certainty. Co. Lit.. 96 a; Daniel v. Grade, 6 Q. B. 145. Kent may be reserved so as to be payable in advance. Lee v. Smith, 9 Ex. 662. As to reservations of corn rents in college leases under the 18 Eliz. c. 6, see Woodfall, 341 ; and as to rents other than pecuniary rents, ante, p. 177. The rent should be reserved to the lessor himself, his heirs and assigns, or Tiis executors, administrators and assigns, according to the nature of the lessor's interest in the pro- perty demised. But a reservation of rent generally during the term is good, for though no person be named to whom it is to be paid, the law will distribute it to the persons legally entitled. See Whitlock's Case, 8 Rep. 69 b; Dollen v. Batt, 4 C. B., N. S. 768. Under a reservation to the lessor alone, the rent, it is said, is payable only during his lifetime. 2 Wms. Saun. 703, ed. 1871, n. 2 to Sacheverell v. Froggatt. Under a simple reservation of rent to a lessor who is seised in fee, or to him and his assigns or executors (not stating during the term), the rent, it seems, is only payable during the hfe of the lessor (Co. Lit. 47 a) ; aliter, where it is so payable during the term. Sacheverell v. Froggatt, 2 Wms. Saun., sup. A mistake in the reservation, as, to heirs and assigns, when it should be to executors, administrators or assigns, or vice versa, is immaterial, as the rent follows the reversion. Woodf. L. & T. 344. If rent be not reserved quarterly or half-yearly, it will not be due until the end of the year. Turner v. Allday, Tyr. & Gr. 819 ; Coomber v. Howard, 1 C. B. 440. Rent may be reserved so as to be increased from time to time by the amount of income tax. Beadel v. Pitt, 11 Jur., N. S. 152, Covenants in Leases. 495 CHAPTER VI. OF COVENANTS IN LEASES. Sec. 1. — To pay Rent, Rates and Taxes. Forfeiture for Nonpayment 495 Melief in JEquity and at Lam . . .. .. 495 Within Six Months . . 495 Ziaiility to pay Rent, though Fire . . , . 495 Disputed Right to Rent . . 495 Rates and Taxes .. . . 495 The ordinary covenants in leases are considered in the Rent, several sections of this Chapter. The covenant to pay rent is almost invariably the first covenant in a lease. The re- medy for breach of it is usually by distress or action for the rent, or by an action of ejectment, where, under the proviso for re-entry, such an action is maintainable. Courts both of Forfeiture for law and equity have power to relieve in cases of forfeiture nonpayment. for nonpayment of rent. Such a power exists as well where Belief in equity there is a proviso that the lease shall be void for nonpay- ""* "' '''^''■ ment as where there is a mere power of re-entry. Bowser V. Colbi/, 1 Hare, 109. By the 1 5 & 1 6 Vict. c. 76, this relief may be had in within six equity within six months after execution on the judgment n"™"^- executed, on payment of the rent, arrears and costs (ss. 210 to 212). These provisions are, in substance, the same as in the 4 Geo. 2, c. 28. But by the 23 & 24 Vict. c. 126, the remedy at law is of a more summary liind, for the court or a judge has power, upon rule or summons, to give the same relief as may be had in equity and upon the same con- ditions (s. 1). A tenant continues liable und-er his covenant to pay rent Liawiity for rent, notwithstanding the premises are destroyed by fire, even preSsratotroyej where there is a covenant to repair, damage by fire only by Are. excepted {Holtzapffell v. Baker, 18 Ves. 115; see Ben- nett V. Ireland, E., B. & E. 326), and equity will not interfere with the legal right. Leeds v. Cheetham, 1 Sim. 146, over- ruling, on this point. Brown v. Quilter, Amb. 619. The Disputed right to tenant is sometimes placed in a difficulty, when, on the '™*" death of his lessor, there are conflicting claims on the part of the heir and devisee where the lessor was seised in fee. In such cases, the lessee is not bound to decide the matter for himself, but may claim the aid of the court by filing an interpleader bill. Jew v. Wood, Cr. & Ph. 185. The lessee under a covenant or agreement to pay rent free Rates ana taxes. of all outgoings, or a net rent, must pay land tax and tithe 496 Landlord and Tenant— Lease. rent-charge (Parish v. Sleeman, 1 D., F. & J. 326) and sewers rate. Bennett v. Womack, 7 B. & C. 627. See as to metropolitan main drainage rates, Sweet v. Seager, 2 C. B., N. S. 119; Thompson v. Lapworth, L. R., 3 C. P. 149. But where the tenant covenanted to pay all taxes and assess- ments except level, property and land taxes, he was held not liable to pay tithe rent-charge. Jeffrey y. Neale, L. E., Sec. 2. — To insure. In whose Names .. .. 496 Application of Insurance 496 Tenant's Equity as to Expen- diture of Insurance Money 496 Relief for Breach of Covenant 496 In whose names. Application of insurance money. Tenant has no right to have in- surance money expended on pre- mises. Breach of cove- nant to insure. Equitable relief. 22 & 23 Vict. c. 31 Where there is a covenant to insure, the insurance must be in the names of the persons mentioned in the covenant. Doe V. Gladwin, 6 Q. B. 953. Thus, a covenant to insure in the name of A. only, is broken by insuting in the joint names of A. and the lessee. Penniall v. Harborne, 11 Q. B. 368. But a covenant to insure in the names of the lessor and lessee may be performed by insuring in the name of the former only, if he consents. Havens v. Middleton, 10 Ha. 461. The covenant is broken by the premises ( Wilson v. Wilson, 14 C. B. 616), or aAy part of them (Penniall v. Harborne, sup.), being uninsured for however short a period. By the 14 Geo. 3, c. 78, s. 83, insurance companies may, at the request of any person interested in any building burnt down, or upon anj' grounds of suspicion of fraud or wilful fire, apply tlie insurance money in rebuilding, unless security is given by the insurer so to apply it, or the money shall have been disposed of amongst the contracting parties to the satisfaction of the company. See 18 & 19 Vict. c. 122, s. 109. The act of Geo. 3 applies to the entire kingdom. Ex parte Gorely, 10 Jur., N. S. 1085. Unless under some covenant or agreement, or by the effect and operation of this statute, a tenant has no equity to compel his landlord to expend money, received from an insurance office on the de- mised premises being burnt down, in rebuilding the pre- mises, nor has the tenant any equity to restrain the landlord from suing for the rent until the premises are rebuilt. Leeds V. Cheetham, 1 Sim. 146. Formerly there was no relief in equity against a forfeiture by reason of a breach of covenant to insure. Reynolds v. Pitt, 19 Ves. 134. Now, by the 22 & 23 Vict. c. 35, a court of equity may Insurance. 497 relieve against forfeiture (which has not been waived (s. 6) ) for breach of this covenant where no loss has happened and the breach has been committed through accident or mistake, or without fraud or gross negligence, and there is an insurance on foot, in conformity with the covenant, at the time of the application (s. 4). A minute of the relief, if granted, is to be endorsed on the lease or otherwise (s. 5), and is only to be granted once to the same person in respect of the same covenant (s. 6). The person entitled to the benefit of the lessee's covenant to insure is to have the same advantage from the insurance, though not in conformity with the covenant, as if it had been in conformity with it (s. 7). Ou a bona fide sale of a leasehold interest, if there is an in- surance in conformity with the covenant subsisting at the time of completion, and the receipt for the last payment of ground rent accrued before completion is furnished to the purchaser, he and those claiming under him will not be liable for any breach.of covenant of which he had no notice (s. 8). And by the 23 & 24 Vict. c. 126, a court of law may grant the same relief against forfeiture as a court of equity under the last-cited act (ss. 2, 3). Sec. 3. — To repair. At all Times 497 General and- particular Covenants .. .. . . 497 WJien Tenant must reinild under .. ,. .. 497 Extent of Covenant , . 498 "Forthwith" .. ..498 Yearly Tenant . . . . 498 No Relief in Equity against Forfeiture for Breach . , 498 A covenant to repair and keep in repair means at all At au times. times during the term. Luxmore v. Robson, 1 B. & A. 584; Smith V. Peat, 9 Ex. 161. Where there is a general cove- General covenant nant to r.epair and a special covenant to repair within a cer- TOveuant™'*' tain time after notice (usually three months), they are con- strued as distinct and independent covenants. Baylis v. Le Gros, 4 C. B., N. S. 537; Few v. Perkins, L. E., 2 Ex. 92. A covenant to substantially repair and yield up at the end of the term, compels the tenant to give up the premises in as good a state of repair as when possession was taken, and it must be inferred that they were then in a tenantable state. Brown V. Trumper, 26 Bea. 11. Under a covenant to keep and deliver up in repair, the tenant voxat put in repair, but the extent of it depends upon the age and class of the premises demised. Payne v. Haine, 16 M. & W. 541. Under a trnder general covenant to repair and keep in repair, the tenant must re- must°rebund'!fn- build the premises if burnt down, unless there is a qualifica- less Arc excepted, tion of the covenant " damage by fire excepted." Bullock w. K K 498 Landlord and Tenant— Lease. Extent of cove- nant. Yearly tenant. No relief in equity. V. Dommitt, 6 T. R. 650; Pym v. Blackburn, 3 Ves. 34. It would seem to be immaterial in such cases, so far as regards the tenant's liability on his express covenants to repair, that the landlord has insured the premises and re- ceived the insurance money without expending it towards the rebuilding. Tweeds v. Cheetham, 1 Sim. 146, 149. And although the tenant may be relieved from repairing by an exception in case of fire, the landlord is not bound to repair unless he has entered into a covenant to do so ; and a cove- nant for quiet enjoyment is not equivalent to such a cove- nant. Brown V. Quilter, 2 Amb. 619. In a demise of houses and a field adjoining, a covenant to repair the houses, field and premises with needful and necessary reparations, does not extend to houses afterwards erected in the field. Cormish v. Cleife, 3 H. & C. 446. "Forthwith," in a covenant to repair, means not immedi- ately, but with all reasonable celerity. Per Tindal, C. J.; Burgess v. Boetefeur, 7 M. & G. 494; see further, as to the cases at law on covenants to repair, Woodfall, L. & T. 480 et seq. A yearly tenant is not bound to do substantial repairs in the absence of an express stipulation to that eifect ( Gott v. Gandy, 2 E. & B. 845); merely to keep them wind and water tight {Anworth v. Johnson, 5 C. & P. 239), and, as regards farms, to manage them in a husbandlike manner. Powley V. fValker, 5 T. R. 373. In general there is no relief in equity against forfeiture for breach of covenants in the lease, except for nonpayment of rent and non-insurance [ante, pp. 495, 496), and conse- quently not for breach of covenant to repair. Wadman v. Calcraft, 10 Ves. 67; Hill v. Barclay, 18 Ves. 56; Job v. Banister, 2 K. & J. 374. In Bargent v. Thonipson (4 Gifi^. 473), however, this equity was, under special circumstances, administered, it appearing that many of the items of repair required by the landlord had been done by the tenant, and that others would have been done but for the weather. See also Bamford v. Creasy, 3 Gifi". 675. In general con- strued strictly. Sec. 4. — Restrictive Covenants as to Trade, %c. Covenants construed strictly 498 To carry on particular ContlHuing Breach.. .. 499 Trade only .- ■■ '^^^ Waiver 499 To deal n-'ith particular Per- Nuisance ' 499 sons only 500 Covenants not to carry on any trade, or particular trades, without licence, though not in general coming under the Restrictive Covenants as to Trade, ^c. 499 description of usual covenants in an agreement (rarafe, p. 478), are, nevertheless, very commonly inserted in leases of houses in particular localities, and are in general construed strictly. Thus a covenant not to carry on any trade or business, or not to carry on any business, but use the house as a private house only, is broken by carrying on the business of a schoolmaster or teacher. Kemp v. Sober, 1 Sim., N. S. 517; Johnstone v. Hall, 2 K. & J. 414; Wickenden v. Webster, 6 E. & B. 387; see Wilkinson v. Rogers, 2 D., J. & S. 62. Where there is a covenant not to carry on the business of a vintner or publican, wine cannot be sold to be consumed on the premises. 23 & 24 Vict. c. 27, s. 44. Under restrictive covenants of this description, there may continuing be a continuing breach or successive breaches, so that a '"■«"='i- waiver of one will not necessarily be a waiver of others. Doe V. Woodbridge, 9 B. & C. 376. As to the waiver of a breach of such a covenant, see Doe Waiver. V. Allen, 3 Taun. 78; Bridges v. Longman, 24 Bea. 27; Gibson v. Doeg, 2 H. & N. 615. A covenant not to use premises as a shop or warehouse corenant not to for any trade, nor to permit anything which may grow to the ucuUtrades or annoyance or damage of the lessors, or any of their other commit nuisance, tenants, is broken, though the act done may not be a nui- sance in law, public or private ; if it be an annoyance, equity will not relieve the tenant in such cases, nor will the court enter into a comparison as to what particular breaches are more or less offensive. Macher v. Foundling Hosp., 1 V. & B. 188. Where a lessee has assigned his interest, and his assignee has covenanted not to carry on a particular trade on the demised property, the lessee of the assignee will be restrained from carrying it on, although the covenant is not contained in the original lease, but only in the assignment of it. It would seem, also, that it makes no difference that the lessee of the assignee had no notice of the covenant. Clements v. Welles, L. R., 1 Eq. 200 ; Wilson v. Hart, L. R., 1 Ch. 463 ; Feilden v. Slater, L. R., 7 Eq. 523 ; see Parker v. Whyte, 1 H. & M. 167. But, as to the latter point, see and consider Carter v. Williams, L. R., 9 Eq. 678. Sometimes to carry on par- the covenant is not to carry on any but a particular business. Jj"^""^ business A restriction of this kind is usual in the case of a house let for the express purpose of being used as a public-house. Bennett v. Womack, 7 B. & C. 627. But such a covenant does not compel the lessee to carry on the particular business ; there should be positive and affirmative words for that pur- pose. Doe V. Guest, 15 M. & W. 160. A covenant that one kind of trade shall not be carried on is not restrictive in KK 2 500 To deal with particular per- sons. Landlord and Tenant —Lease. respect of other trades. Van v. Cooper, 3 M. & K. 269 A covenant that the tenant shall only deal with a particular person, for instance, his landlord, is not inoperative though not favoured. Such a covenant is not unfrequently contained in brewers' leases. See Holeombe v. Hewson, 2 Camp 391 • Jones V. Edney, 3 Camp. 285 ; Doe v. Reid, 10 B & c' 849. In Catt v. Tourle, L. E., 4 Ch. 654, a brewer sold a piece of land, and the purchaser covenanted with him that he should have the exclusive right of supplying beer to any pubhc-honse erected on the land; there was no covenant by the vendor to supply such beer; it was held, nevertheless, that the covenant was binding on an assignee of the land who purchased with notice. Where written licence necessarv. Equity will not relieve against forfeiture. Underlease where covenant against assij^mmeut. Letting. Assignment. Covenant not to underlet, EauitaWe mort- gage. Sec. 5. — Not to assign without Licence. Written Idcence where necessary .. ,. . . 500 Eqiiity mil not relieve . . 500 Underlease . . ., . . 500 Assignment .. . . . . 500 Equitable Mortgage . . 500 Consent not to he unreason- aily withheld ., . . 501 Assignment by Operation of Lam — Banhrvptey .. 501 Under Sankruptcy Act, to Trustee 501 Bequest — Marriage . . 601 Sale to Autliority having compulsory Power of Pur- chase 501 Where there is a covenant not to assign without licence a written licence is not necessary unless required by the cove- nant. Richardson v. Evans, 3 Madd. 218. And if required to be in writing, and a parol licence is given as a snare, and to entrap the tenant, equity will relieve him. lb. But, in general, when a forfeiture has been incurred under the covenant, equity will not relieve. Hill v. Barclay, 18 Ves. 63; Lovat V. Ld. Ranelagh, 3 V. & B. 24. And if the lessee assigns without licence, the assignee will not be entitled to enforce against the lessor a covenant to pay a valuation to the tenant on the expiration of his term, if no rent has been accepted by the lessor from the assignee. Elliott v. John- son, L. R., 2 Q. B. 120. A covenant not to'assign, transfer or set over, or otherwise do or put away the lease or de- mised premises, is not broken by an underlease. Crusoe v. Bugby, 2 W. B. 767. But an underlease is a breach of a covenant not to set, let or assign. Roe v. Harrison, 2 T. R. 425. An assignment is a breach of covenant not to let, set or demise for the whole or any part of the term. Greenaway V. Adams, 12 Ves. 395. But an equitable mortgage by de- posit is no breach of a covenant not to let, assign, transfer or otherwise part with the premises or lease, because it gives Assignynent. 50 1 no legal title. Doe v. Bevan, 3 M. & S. 353; see Gourlay V. D. of Somerset, 1 V. & B. 68. Sometimes the covenant not to assign is qualified by the consent not to proviso that the lessor sliall not refuse his consent unreason- tie unreasonably ably or vexatiously. In such a case equity will not allow it to be withheld where the proposed assignee is a person wholly unobjectionable, the object of the lessor in refusing, being to obtain a surrender of the lease. Lehmann v. M'Arthur, L. R., 3 Ch. 496. An assignment bi/ operation of law is not a breach of a Assignment by covenant restraining alienation without licence; as where °vemiionot\a.vi. the lessee becomes bankrupt. See Wetherell v. Geering, 12 Ves. 512. An assignment of all the assignor's property to trustees, unaerBankrnptcy under the 192nd section of the Bankruptcy Act of 1861, was ^""^^ ^''^^'"'■ held to be a voluntary act and a breach of the covenant not to assign. Holland v. Cole, 1 H. & C. 67; consider now the Bankruptcy Act, 1869, 32 & 33 Vict. c. 71, ss. 125, 126. A bequest would seem to be no breach of such a covenant Bequest. {Doe d. Evans v. Evans, 9 A. & E. 719), nor the marriage of a female lessee. Com. Dig. tit. Condition (2); see ante, p. 323. And if leaseholds, subject to such a covenant, come to the hands of executors, they may dispose of them notwith- standing the covenant. Seers v. Hind, 1 Ves. jun. 295. And a sale to any company or authority having statutory saie to authority compulsory powers of purchase is valid, notwithstanding the ^*7'"|^°™J"'' restrictive covenant. Slipper v. Tottenham, Sfc. R. Co., purchase. L. R., 4 Eq. 112; see, as to a licence under the 22 & 23 Vict. c. 35, post, p. 506. Sec. 6. — Of the Lessor's Covenants. For quiet Enjoyment .. 501 I As to fitness for Occupation 502 Implied— Express .. . . 501 | Repairs 502 In general, the covenant for quiet enjoyment is the only For quiet cnjoy- covenant which a lessor enters into. Occasionally, however, ™"'- the lessor covenants to insure and to pay certain rates and taxes, as land tax, and sometimes he enters into a covenant for renewal or sale to the lessee. A covenant for quiet en- when implied. joyment is implied from the words " demise," "lease," or any equivalent words, against interruption or disturbance by any person. Iggulden v. May, 9 Ves. 325 ; Williams v. Burrell, 1 C. B. 429; Hall v. City, SfC. Brewery Co., 2 B. & S. 737. But no covenant is to be implied from the words "give" or "grant," except by force of some statute. 8 & 9 Vict. c. 106, s. 4. And any express covenant in the lease Eipresa. 502 Landlord and Tenant — Lease. No implied cove- nant by lessors that house is iit for habitation, Sao Kor that he will repair. for quiet enjoyment will supersede the implied one. Line V. Stephenson, 4 B. N. C. 678 ; see further as to this covenant, Woodfall, L. & T. 568, where the cases at law are collected. There are no implied covenants by the lessor, that a house is reasonably fit for habitation or that land is fit for cultiva- tion. Sutton V. Temple, 12 M. & W. 52; Hart y. Windsor, ib. 68. Nor is there an implied covenant that the lessor will do any repairs. Arden v. Pullen, 10 M. & W. 321; Gott V. Gandy, 2 E. & B. 845. And when he does cove- nant notice of the want of repair must be given to him. Makin v. Watkinson, L. E., 6 Ex. 25, Martin, B., diss. In general. Two kinds of covenants which Sec. 7. — Covenants running or not with the Land. Covenants running mith the Covenants running with the Land 602 Topay Rent .. .. 503 To build — To repair . . 603 As to User of Land . . 603 To reside — 2fbt to assign 603 iVoi to carry on Trade . 503 To insure .. .. 503 Quiet Enjoyment , . 603 Covenants running mith Land — continued. Further Assurance To renew Joint Demise .. 603 603 603 503 Covenants not running To pay additional Rent 603 Not to build .. . . 503 To indemnify . . .. 604 Covenants running with the Land.] A covenant in a lease runs with the land or the reversion where it touches or concerns the thing demised. Spencer's Case, 5 Rep. 16 ; Ackroyd v. Smith, 9 C. B. 689 ; Thomas v. Hayward, L. R., 4 Ex. 311 ; see Easterly v. Sampson, 6 BIng. 644. There are two sorts of covenants which run with the land ; one binds the assignees when named, the other binds them though not named. Covenants of the former class, as a rule, con- cern things to be newly done upon the demised premises ; covenants of the latter class concern things in esse, parcel of the demise. Spencer's Case, 5 Rep. 16; and see Doughty V. Bowman, 12 Jur. 183; on appeal, 11 Q. B. 444. In Minshull v. Oakes, 2 H. & N. 793, that part of the reso- lution in Spencer's Case, which relates to things to be newly done, was doubted. See, however, 1 Sm. L. C. 57. Subject to the qualification contained in this resolution, the assignee of the term or reversion is bound to perform a covenant which runs or is entitled to the benefit of it, as the case may be. See 32 Hen. 8, c. 34, post, Chap. VII. Other covenants, which are simply collateral, not in any way concerning the subject of the demise, do not bind assignees though named, for instance, to build elsewhere than on the demised premises, to pay money (not being rent), or the like. Covenants running or not with Land. 503 4 Byth. Conv. by Sweet, 425. The principal covenants by to pay rent. a lessee which run with the land are covenants to pay rent {Parker v. JVebb, 3 Salk. 5); to build, but in this case assigns must be named to bind tliem {Sampson v. Easterly, 9 B. & C. 505 ; 6 Bing. 644 ; Doughty v. Bowman, 11 Q. B. 444); to repair {Dean, SfC. Windsor's Case, 5 Rep. 23 b; Martyn V. Clue, 18 Q. B. 661; Williams v. Earle, L. R., 3 Q. B. 739), even new buildings, if erected on the demised premises (Minshull v. Oakes, 2 H. & N. 793), and binds the assigns, although not named {lb.; but see, as to this case, 1 Sm. L. C. 57); to use as a private house only, which also binds assigns As to user, though not named {Wilkinson v. Rogers, 10 Jur., N. S. 5); to reside on the demised premises, though assigns are not To reside, named {Tatem v. Chaplin, 2 H. B. 133); not to assign, Not to assign. underlet or part with the premises, without licence ( Williams V. Earle, L. R., 3 Q. B. 739 ; see West v. Dohb, L. R., 5 Q. B. 460), if the assigns are named, not otherwise it would seem {Doe v. Smith, 5 Taun. 795) ; to insure where the To insure, property is within the biUs of mortality, 14 Geo. 3, c. 78, s. 83 (old Building Act), ( Vernon v. Smith, 5 B. & A. 1), and as it would seem to insure out of the limits of this act — per Best, J., ib. 9; see Penniall v. Harborne, 11 Q. B. 368. As to restrictive covenants, see Wilkinson v. Rogers, 2 D., J. & S. 62 ; Jay v. Richardson, 30 Bea. 563 ; Wilson v. Hart, L. R., 1 Ch. 463. The following covenants by a lessor (or vendor) run with the land : to produce deeds {Barclay v. Raine, 1 S. & S. 449) ; for quiet enjoyment {Campbell v. Lewis, 3 B. & Al. 392) ; for Quiet enjoyment, seisin and right to convey {Kingdon v. Nottle, 4 M. & S. 53); for further assurance {Middlemore v. Goodale, Cro. Further assu- Car. 503) ; to renew a lease {Furnival v. Crew, 3 Atk. 87). ™"^°„^^ The benefit of a covenant in respect of something which is joint demise not divisible, e.g. to repair, in a demise by tenants in com- mon runs with the entire reversion, and all the lessors, there- fore, or their representatives, must sue for a breach. Thomp- son T. Hakewell, 19 C. B., N. S. 713. Covenants not running.^ When a covenant does not touch or concern the thing demised, it will not run with the land, and the assignee of the land or reversion, as the case may be, is not bound by it and cannot take advantage of it. Spencer's Case, 5 Rep. 16 a. It is not sufficient that it should affect or concern the beneficial occupation of the thing demised. Thomas v. Hayward, L. R., 4 Ex. 311. A cove- To pay addiuonoi nant by a lessee to pay additional rent for the lessor's outlay ™'*' in improving buildings does not run. I^ambert v. Norris, 2 M. & W. 333. A covenant by a lessor not to build or keep a Kot to baud. To Indemnify. 504 Landlord and Tenant — Le house for the carrying on of a business similar to that cove- nanted to be carried on by the lessee, does not run {Thomas V. Hayward, sup. ; see Fielden v. Slater, L. R., 7 Eq. 523) • nor does a covenant by a lessor in an underlease to indem- nify the lessee against the covenants in the original lease Boughty V. Bowman, 11 Q. B. 444. In this case the assigns of the covenantor were not named. Sec. S.— Remedy in Equity for Breach of Covenant. Sy Injunction .. . . 604 Landlord iomid ly Repre- Melief in Equity does not sentations 505 depend upon Covenants Landlord restrained from running 604 Sreach of Covenant or Underlessee lound hy Cove- Agreement .. . . 505 nants of his Lessor . . 504 Building Plots .. . . 505 Relief in equity does uot depend upon covenants running. Injunction. The remedies for breach of covenant or agreement are: 1_, by action; 2, also for rent in arrear, by distress; 3, by ejectment where there is a proviso for re-entry for the breach of covenant ; 4, by injunction. The first and second reme- dies do not fall within the scope of this work ; the third has already been noticed in several places, particularly where the remedy is subject to the control of a court of equity. The fourth remedy being that especially within the jurisdic- tion of a court of equity, remains to be considered. It may be observed that with regard to the remedy by injunction as between persons who are not actual parties to a covenant, it is not necessary that it should in every case run with the land, so as to bind an assignee at law. An injunction will be granted in many cases where the covenant does not at law bind the person against whom it is sought to enforce it. See Wilson v. Hart, 2 H. & M. 551; S.C, L. E., 1 Ch. 463 (between vendor and purchaser). In most cases where a breach of covenant is threatened or committed, and a court of equity can prevent it, or prevent the continuance of it, it will interfere by injunction. Tipping v. Eckersley, 2 K. & J. 264; Hindley v. Emery, L. R., 1 Eq. 52. Thus the court will restrain the tenant from breaking up meadow land contrary to his covenant. Ld. de Wilton v. Saxon, 6 Ves. 106; Drury v. Molins, ib. 328. And a court of equity can give damages in respect of a breach of covenant already committed. Middleton v. Magnay, 1 H. & M. 233; Hind- ley V. Emery, sup. An injunction may be had against a yearly tenant. Onsloiv v. , 16 Ves. 173; Wilson v. Hart, L. R., 1 Ch. 463. Underlessee bound It is the duty of an underlessee to inquire into the pro- Remedy for Breach of Covenant. 505 visions of the original lease, as he will be restrained from by covenants oj committing breaches of them. Parker v. White, 1 H.- & M. '>'»'^''""- 167. So he will be restrained from committing a breach of covenaut in an assignment of the original lease, although not contained in the ojiginal lease, though he has no actual no- tice, and, semble, even no constructive notice. Clements v. Welles, L. E., 1 Eq. 200; see Mitchell v. Seward, ib. 541; cons. Carter v. Williams, L. E., 9 Eq. 678 ; and the cases ante, p. 499. A landlord will also be bound in equity by his conduct or Landlord bonna representations, by which he induces his tenant to believe totioiir*'^''™' that a certain state of things or a certain condition of pro- perty, though not demised, shall continue unaltered, par- ticularly if there has been expenditure by the tenant on the faith of such conduct or representations. Jackson v. Cator, 5 Ves. 688; Nicholson v. Rose, 4 D. & J. 10; see Piggott V. Stratton, 1 D., F. & J. 33; and the cases ante, p. 89; comp. Armstrong v. Courtnay, 15 Ir. Ch. E. 138. A landlord, and those claiming under him, will also be Landlord re- restrained from a breach of his covenant. Thus, if he cove- breach'ofTo'?e- nant in a lease of an hotel that he will not let any other nantoragree- house within a certain distance be used as an hotel, he, and "^° ' those claiming under him, will be restrained from committing a breach of the covenant. Jay v. Richardson, 30 Bea. 563. As to the eflFect of restrictive covenants where plots of land Buuaing plots. are sold for building, and the right of one purchaser against another, see tit. " Vendors and Purchaseks." Sec. 9. — Waiver of Breach of Covenant — Licence. Waiver . . ■ ■ . ■ 505 Acceptance of Rent .. 505 Continuing Breach . . 506 23 # 2i Vict. c. 38 . . 506 Wai fer — coDtinued. Acquiescence in . . 506 Licence . . . . .. 506 •22 4- 23 Vict. u. 35 . . 506 Waiver.] Acceptance of rent after a forfeiture, with Acceptance of knowledge of it, is a waiver {Roe v. Harrison, 2 T. R. 425; '^™'' Arnshy v. Woodiuard, 6 B. & C. 519; Price v. Worwood, 4 H. & N. 512; Bridges v. Longman, 24 Bea. 27; see West V. Dobb, L. R., 5 Q. B. 4601, if the forfeiture does not make the lease absolutely void, but voidable only. Doe v. Bancks, 4 B. & A. 401 . So bringing an action for rent accru- ing after the forfeiture, and with knowledge of it. Dendy v. Nicholl, 4 C. B., N. S. 376. But after ejectment brought, the receipt of rent is no waiver of the forfeiture {Doe d. Morecraft v. Meux, 4 B. & C. 606 ; see Toleman v. Port- 506 Landlord and Tenant— Lease. Continuing breach. 23 & 24 Vict. ( Ac(iuiesc6nce in. 22 & 23 Vict. c. 36. bury, L. E., 6 Q. B. 245) ; nor is it of a continuing breach of covenant. Doe v. Jones, 5 Ex. 498; Doe v. Gladwin, 6 Q. B. 953; see Hills v. Rowland, 4 D., M. & G. 430. Novtr, by the 23 & 24 Vict. c. 38, s. 6, an actual waiver shall not extend to any breach of covenant or condition other than that to vrhich the waiver relates, unless an intention to that effect shall appear. Where a lessor merely stands by and sees the lessee making alterations which are in violation of his covenant, this will not amount to a waiver. Perry v. Davis, 3 C. B., N. S. 769; see Doe v. Allen, 3 Taunt. 78. Licence.^ Formerly a licence to commit a breach of cove- nant operated as a total wsxver of the condition. Dtimpor's Case, 4 Eep. 119 b. By the 22 & 23 Vict. c. 35, a licence to do any act which if done without a licence would create a forfeiture, extends now, unless otherwise expressed, only to the permission actually given, or to any specific breach, or to the actual matter authorized to be doue (s. 1); and a licence to one of several lessees, or as to part of property, does not affect the right of re-entry as to the other lessees or the remainder of the property (s. 2). Sec. 10. — Proviso for Re-entry. At option of lessor. Proviso tliat lease shall be void; or for cesser of term. ejectment. Eanltruptcy. At Option of Lessor only . . 506 Lease to be void .. . . 506 Re-entry without I^ectment 506 On Bankruptcy . . . . 606 A proviso that the lease shall be void and for re-entry, on non-payment of rent or non-performance of covenants, ^ is exerciseablo at the option of the lessor only, who, if he in- tends to avoid the lease, brings an action of ejectment. Arnsby v. Woodward, 6 B. & C. 519. So, if the proviso be that on breach of covenant the lessee may re-enter as if the lease had never been made {Hartshorne v. Watson, 4 B. N. C. 178), or that the term shall cease. Doe v. Baker, 8 Taunt. 241; see Remington v. CarSile, 3 H. & N. 356. Ee-entiy without As to a right to re-enter without bringing ejectment, see ... Hartshorne v. Watson, 4 B. N. C. 178 ; Acocks v. Phlhps, 5 H. & N. 183. ^ , , A proviso for re-entry on the bankruptcy of the lessee is valid. Church v. Brown, 15 Ves. 268; Doe v. David 1 C, M. & R. 405; Doe v. Ingleby, 15 M. & W. 465 See further, as to the construction of this proviso at law, Woodt. L. & T. 286, et seq. Assignment and Devolution of Interest. 507 CHAPTEE VII. 507 Assignee not executing, 507 hound hy Covenant to in- 507 demnify 508 507 EquitaMe Assignee . . 508 Successive Assignees 508 507 Covenant of Indemnity on 508 Sale 509 508 Z^iiderlease of whole Term, . . 509 BanTirvptcy . . 509 508 Death 509 law. 32 Hen. 8, c. 34. ASSIGNMENT AND DEVOLUTION OF THE INTEREST OF LESSOR AND LESSEE. Assignment by Deed Of the Reversion . . Rights at Common Lam . . Dy32ffen.S,c.3i.. Act applies only to Cove- nants which run . . And Leases by Deed Severance of Reversion Lessee and Assignee, horn bound by Covenants As previously stated [ante, p. 481), an assignment of chattel By deed, interests (not being copyhold) in tenements or hereditaments is void at law unless made by deed, unless perhaps where the interest might have been created by parol. The assignment of the reversion gave, at common law, Eevereion. the assignee of the reversion limited rights only ; for in- Eights at common stance, to rent and to the benefit of certain covenants. By the operation of the 32 Hen. 8, c. 34, grantees of reversions have the like advantages against the lessees, their executors, administrators and assigns, by entry for non-payment of rent, waste or other forfeiture, and by action only for non- performance of other conditions, covenants or agreements contained in leases, as the lessors, their heirs or successors might have had against the lessees (s. 1). The other con- ditions mentioned in this section are such as are incident to the reversion, as rent, or for the benefit of the reversion. See Co. Litt. 215 b. And, by section 2, lessees, their ex- ecutors, administrators and assigns, shall have the same remedy against grantees of reversions on the covenants of the grantors, as the lessees might have had against the lessors, their heirs and successors. This statute, however, applies only to covenants running with the land [ante, p. 502; see 1 Sm. L. C. 52; Spencer's Case, 5 Rep. 16); when they do, an assignee, whether of the term or reversion, m.ay sue for breaches of them, subject to the resolution in Spencer's Case, ante, p. 502. They must, however, be breaches com- mitted in his own time, not previous breaches. Martyn v. Williams, 1 H. & N. 817. And an assignee of the reversion is not entitled to arrears of rent which became due prior to the assignment. Flight v. Bentley, 7 Sim. 149. Although a lessor has demised at a rent without leaving a reversion in himself, the rent may be assigned so as to give the assignee a right of action in his own name. Williams v. Hayward, 1 E. & E. 1040. Statute applie.s only to covenants which run. 508 Landlord and Tenant— Lease. Applies to leases by deed only. Assignee of part of reversion. Asslgrnee of rever- sion in part. Severance of reversion. Lessee and as- signee how bound by covenants. Assignee not executing bound by covenant to indemnify. Equitable Successive as- signees bound to indemnify original The act of Henry 8th applies only to leases by deed, and if the lease be not by deed the reversioner cannot sue upon the parol lease. Standen v. Christmas, 10 Q. B. 135; see Bichford v. Parson, 5 C. B. 921. An assignee of part of the grantor's reversion in the whole of the property in which a particular estate, for instance a terra of years, has been created, is an assignee of the reversion within the 32 Hen. 8, c. 34. Thus if a person seised in fee makes a lease, and then grants to A. for life, or years, A. becomes entitled, during his term, to the benefit of the covenants contained in the lease. Co. Litt. 215b (n. 1); Wright v. Burroughes, 3 C. B. 685; see, in particular, the judgment of Maule, J. But a grantee of the whole reversion in part of the pro- perty was not such an assignee in respect of conditions. Wright v. Burroughes, sup. Though otherwise in respect of covenants. Twynarn v. Pickard, 2 B. & Al. 105; Simp- son V. Clayton, 4 B. N. C.,758, 780. And now, by the 22 & 23 Vict. c. 35, when the reversion upon a lease is severed and the rent legally apportioned, the assignee of each part of the reversion has, in respect of his apportioned rent or other reservation, the benefit of all conditions or powers of re-entry for non-payment of the original rent or other reservation as if originally incident to his part of the reversion (s. 3). The lessee is bound by the covenants in the lease during the whole term, but an assignee only during the period of his holding as assignee. Taylor v. Shum, 1 B. & P. 21 ; Staines v. Morris, I V. & B. 9, 11. Where a lessee covenants in an underlease to observe the covenants of the original lease, it is the same as if these covenants had been inserted at length in the underlease. Piggott v. Stratton, 1 D., F. & J. 33 ; see Doughty v. Bowman, 11 Q. B. 444. An assignee of leaseholds, who accepts the benefit of an assignment, is, in equity, liable to the covenants on his part contained in the assignment, although he does not execute it ( Willson V. Leonard, 3 Bea. 373); and the equitable as- signee of a lease is liable in equity to indemnify his assignor in respect of breaches of covenant in the lease occurring after the equitable assignment and during the time the as- signee is in possession. Close v. Wilberforce, 1 Bea. 1 12. There is an implied promise on the part of each successive assignee of a lease to indemnify the original lessee against breaches of covenants in the lease committed by each assignee during the continuance of his own term; and such promise will be implied, although each assignee expressly covenants to indemnify his immediate assignor against all subsequent breaches. Moule v. Garrett, L. R., 5 Exch. 132, Cleasby, n., Determination of Lease. 509 The assignor of a lease is entitled to a covenant of in- Covenant of in- demnity from the assignee against nonpayment of rent and '*^™""y "" ^'''^• nonperformance of the covenants and conditions in the lease by the latter in all cases in which the assignor, notwithstand- ing the assignment, will still continue liable either where he is lessee, or assignee, if he has covenanted to indemnify his assignor. Pember v. Matthews, 1 B. C. C. 52 ; Staines v. Morris, 1 V. & B. 8. But this rule did not apply on the sale of bankrupt's leasehold estates. IJ'ilkins v. Fry, 1 Mer. 244 ; see Dav. Pr. Conv. 203, 204 ; and consider 32 & 33 Vict. c. 71 , ss. 23, 24 ; Dart, Yen. & Pur. 512. An assignor, who knows that the premises assigned are to be used for immoral or illegal purposes, cannot enforce this covenant. Smith V. White, L. K., 1 Eq. 626. Au underlease of the whole term operates as an assign- Underlease of ment. Beardman v. Jnison, L. R., 4 C. P. 57. whole tern,. On the bankruptcy of a lessee or assignee, his interest Bankruptcy, vests in the trustee in bankruptcy (32 & 33 Vict. c. 71, s. 15 (3)), who however may disclaim a lease with onerous covenants, which thereupon shall be deemed to have been surrendered from the order of adjudication. {lb. s. 23.) On a written application to him by any person interested in the property, the time limited for disclaimer is twenty-eight days after the application, or such further time as the court may allow (s. 24). On the death of a lessor, his interest vests Death, in his devisees, or real or personal representatives, as the case may be, and according as the reversion is of a freehold or leasehold nature. The interest of a lessee or assignee, un- less for his own life only, vests in his executors or adminis- trators; as to whose rights and liabilities in such cases, see tit. "EXECUTOES AND AuMINISTRATOES." CHAPTER VIII. DETERMINATION OF LEASE HOLDING OYER. £y Surrender . . . . 509 What 509 Statute of Frauds . . 510 8 #9 Vict. c. 106, s. 3.. 510 Surrender in futuro .. 510 By Operation of Law. . 510 Nem Lease to old Tenant or third Person . . 510 Cancellation of Lease . . 511 Sy 'Effluxion of Time .. 511 Notice 511 Option — Consent of both 511 Condition precedent .. 511 Delivering up Posses- sion .. .. .. 511 Inclosures and En- croachments . . .. 511 Holding over . . . . 512 Surrender.] A surrender is the yielding up an estate for What. life or years to him who has the immediate estate in rever- 510 Landlord and Tenant — Lease. statute of Frauds. S & 9 Vict. c. 106, / Interesse'j£rmini. Surrender in fyiuro. By operation of law. Tenant accepting new lease. Xew lease to tliird person. Accepting key of premises. sion or remainder, wherein the surrendered estate may drown by mutual agreement. Co. Lit. 337 b. By the Statute of Frauds, 29 Car. 2, c. 3, s. 3, no leases or terms of years, or any uncertain interest not being copyhold or customary interests in any hereditaments, shall be assigned or sur- rendered unless by deed or note in writing, or by act and operation of law. By the 8 & 9 Vict. c. 106, s. 3, surren- ders in writing of interests in hereditaments not being copy- holds, and not being interests which may be created without writing, are void unless by deed. Terms not exceeding three years may be surrendered, by the Statute of Frauds, by deed or note in writing or by act and operation of law. The 8 & 9 Vict. c. 106 does not apply to such terms, as they may be created by parol. The surrender of a lease will not affect a subsisting sub-lease (see post, tit. " Merger"), nor agreements for underleases. Cousins v. Phillips, 3 H. & C. 892. An interesse termini {ante, p. 493) cannot be ex- pressly surrendered (Bae. Ab. Lease, 7th ed., vol. 4, p. 880); but it will be extinguished by the acceptance of a^new lease. lb. A surrender cannot be made to take effect m/Me party out of title of such person to the land, rent or advowson, for the exti^SShed. ° recovery whereof such entry, distress, action or suit respec- tively might have been made or brought within such period, shall be extinguished" (s. 34). The old statutes barred the remedy only, the modern ones put an end to the right as well as the remedy. Dundee Harbour ( Trustees) v. Dou- gall, 1 Macq. H. L. 317, 321. As to the right under a con- L l2 -516 Limitations to Suits, sixty years' ad- verse possession gives right. tract of re-purchase, see Alderson v. White, 2 D. & J. 97; and as to mortgagees, see post, s. 40. Lands of the Crown and Duchy of Cornwall.'] It may be useful to mention that adverse possession for sixty years of any messuages, lands, tenements, rents, tithes, or heredi- taments whatsoever (other than liberties or franchises) of the crown or duchy of Cornwall, confers now a good title agamst the crown or duchy. 24 & 25 Vict. c. 62. Sec. 2. — When Right shall be deemed to have first accrued — Generally. As to Estates in Possession . 516 Cases of Forfeiture . . ..617 Estates of deceased Persons 516 Ulscontinuanee — Disposses- Estates conveyed .. .. 616 sion 617 Futwre Estates ., .. 617 When the right! stiall be deemed to have accrued ; in the case of an estate in posses- sion, in the ease of estate of a de- ceased person. in the case of an estate conveyed, The right to make an entry or distress, or bring an action to recover any land or rent {charge, 9 Q. B. 355), shall be deemed to have first accrued — (1.) When the claimant, or some person through whom he claims, shall, in respect of the estate or interest claimed, have been in possession or in receipt of the profits of such land or of such rent, and shall, while entitled thereto, have been dispossessed or have discontinued such possession or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received; When the claimant shall claim the estate or interest of some deceased person -who shall have continued in such possession or receipt in respect of the same estate or interest until the time of his death, and shall have been the last person entitled to such estate or interest who shall have been in such pos- session or receipt, then such right shall be deemed to have first accrued at the time of such death; (3.) When the claimant shall claim in respect of an estate or interest in possession, granted, appointed or otherwise assured by any instrument {other than a will) to him, or some person through whom he claims, by a person being, in respect of the same estate or interest, in the possession or receipt of the profits of the land, or in the receipt of the rent, (2.) When Right first accrues. 517 and no person entitled under sucli instrument shall have been in such possession or receipt, then such right shall be deemed to have first accrued when the claimant, or the person through whom he claims, became entitled to such possession or re- on conveyance; ceipt by virtue of such instrument; (4.) When the estate or interest claimed shall have been in case of future in reversion or remainder, or other future estate "^^^^^ or interest, and no person shall have obtained the possession or receipt of the profits of such land, or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have on becoming first accrued when such estate or interest became ^^'fs in posses- an estate or interest in possession; (5.) When the claimant, or the person through whom he in cases of for- claims, shall have become entitled by reason of any ot'condmonT*" forfeiture or breach of condition, then such right shall be deemed to have first accrued when such on forfeiture in- forfeiture was incurred or such condition was <;"™iior«>n'iition 7 7 / rt \ oroKen. broken (s. 3). See the very learned and acute criticisms on the second and third sections, with reference in particular to the case of James v. Salter, 2 Bing. N. C. 505, and 3 Bing. N. C. 344 (decision as to annuities under wills), and generally as to the true construction of these sections, Sug. K. P. St. p. 19 et seq. " The expression ' in receipt of the profits of any land' is used in the act in conjunction with the words in possession of the land, to denote, not the receipt of rent from a tenant, but the receipt of the actual proceeds of the land." lb. p. 47; see Grant v. Ellis, 9 M. & W. 128. Discontinuance of possession means the abandonment of Discontinuance, possession by one entitled to it {Rimington v. Cannon, 12 Dispossession. C. B. 18), followed by actual possession by another. Smith V. Lloyd, 9 Ex. 562 ; see McDonnell v. M'Kinty, 10 Ir. L. E. 514. The time of discontinuance or dispossession of the re- Rent. ceipt of rent has reference to the last actual payment of it, from which time the statute begins to run. Owen v. De Beauvoir, 16 M. & W. 547; and &ee.post, s. 7. Where a question arises Mines. as to mines, prima facie the possession of the surface is that of the mines beneath, unless they are dissevered in title. Keyse v. Powell, 2 E. & B. 132; Smith v. Lloyd, sup. The words " or other future estates or interests," in the Reversionary and fourth branch of the second section, compi-ehend all execu- [Uterite '^'^ "'"' tory devises. Per Tindal, C. J., 3 Bing. N. C. 554. Where A., tenant for life, with remainder to B., wrongfully suffered a recovery and re-settled the estate, taking also a life interest under the new settlement, it was held that time did not begin 518 Limitations to Suits. to run against B. until the death of A., until which time B.'s estate was reversionary. Lewis v. Rees, 3 K. & J. 132. Where, prior to the Abolition of the Fines and Recoveries Act (3 & 4 Will. 4, c. 74) {ante, tit. "Estates"), husband and wife seised in fee in right of the wife conveyed to a pur- chaser by deed without' fine, it was held that the wife's estate was a future estate (s. 3), subject to and arising after the determination of the husband's estate. Jumpson v. Pitchers, 13 Sim. 328; see Doe v. Bramston, 3 A & E. 63. Sec. 3. — Adverse and Non-adverse Possession. Doctrine of ad- verse possession. Doctrine of adverse Posses- sion 518 Mere Possession in general sufficient 518 Possession for prescribed period. Effect of mere to a claimant. Nature of Possession mate- rial 519 Non-adverse Possession at Time of Act .. .. 519 The act has done away with the doctrine of adverse posses- sion. The question now is (except in cases of disability), whether twenty years have elapsed since the right accrued to the claimant or person through whom he claims, whatever may be the nature of the possession. See Doe v. Nepean, 2 M. & W. 911. Though " when the possession is a bar under the statute, it may still properly be called adverse possession, although not in the old sense." Sug. E. P. St. 23. But there must have been possession for the prescribed time on the part of one person, and absence or want of possession by the other, otherwise the statute does not apply. Smith v. Lloi/d, 9 Ex. 562 ; see Dixon v. Gayfere, 17 Bea. 421 ; fVorssam v. Vandenbrande, 17 W. R. 53 ; Searby v. Tot- tenham R. Co., L. E., 5 Eq. 409. And mere possession for the statutory period, without acknowledgment of an adverse right, is, in general, a sufficient bar to a claimant. See Doe V. Taylerson, 11 A. & E. 1015; Dixon v. Bates, L. E., 1 Ex. 259; comp. Dixon v. Gayfere, 17 Bea. 421. And prior possession for such period is sufficient as against the subse- quent possession of another for less than the statutory period. Doe V. Cooke, 7 Bing. 345. A person acquires by possession a devisable interest, and his devisee has a good title as against all but the true owner, and against him if his right is barred by lapse of time. Asher v. Whitloch, L. K., 1 Q. B. 1 ; see Holmes v. Newlands, 3 Q. B. 679. But in order to give a right to maintain an action of ejectment, the pos- session must be, on the part of one person, for the statutory period, or by another deriving title under him {Doe v. Bar- nard, 13 Q. B. 945) ; although, as a defence, possession for Adverse and Non-adverse Possession. 519 such period may not be necessary. lb. Consider Searby V. Tottenham R. Co., L. E., 5 Eq. 409. Where a person who has simply a title to property by possession devises it, those claiming and taking possession under the wiU cannot set up any title inconsistent with it. Hawksbee v. Hawksbee, 11 Ha. 230; see Anstee v. Nelms, 1 H. & N. 225. But although the doctrine of adverse possession, strictly Nature of possw- speaking, no longer exists, yet the nature of the possession ^'™ material. is sometimes important. Thus it has been held that an entry by a father {Thomas v. Thomas, 2 K. & J. 79), or an uncle, who was also executor (JPelley v. Bascombe, 9 Jur., N. S. 1120; aif. 11 Jur., N. S. 52, Turner, L. J., giving no opinion), is to be considered as va&Aei prima facie on behalf of a child or nephew or niece, being under age at the time, and not ad- versely. See Doe v. Groves, 10 Q. B. 486; Hicks v. Sallitf, 3 D., M. & G-. 782; Mathew v. Brise, 14 Bea. 381. But where a tenant in tail affected to devise his estate tail to his widow in fee, and she continued in- possession upwards of twenty years after her husband's death, she was held to have acquired a good title under the statute, although her son, the heir in tail, received the rents, first as agent for his mother, then in his own name, but always accounting to her for them. Williams -v. Pott, Q'W.'S. 14:2. By section 15, a period of five H'on-adverse years from the passing of the act was allowed to make claims, umeTf tSe^act^ where the possession was not then adverse. This section has no longer any direct operation. Sug. E. P. St. 59. Sec. 4. — Forfeiture — Remainderman — Reversioner — Administrator. Forfeiture ,. .. . . 519 Copyholds .. . . . . 520 Reversioner having no par- tioular Estate .. ,. 520 Person entitled to Estate in Possession, and future Estate 520 Administrator .. .. 520 Where advantage of a forfeiture is not taken by the re- Forfeiture. . mainderman to recover any land or rent (charge, 9 Q. B. Eights of 355), he shall have a new right when his estate comes into '^™*"'**™='" possession (s. 4). See Lewis v. Rees, 3 K. & J. 132, ante, p. 518. This section must be read in connection with the last branch of sec. 3. The rights of a remainderman or rever- sioner who does not at the time take advantage of a for- feiture are not affected in consequence. Thus, where there Forteitare.by is a forfeiture of a lease, the lessor need not take advantage '^"=°- of it, and his right at the end of the term will not be affected by his not doing so. Doe v. Oxenham, 7 M. & W. 131 ; see Doe v. Blakeway, 5 C. & P. 563. But he cannot enter 520 Limitations to Suits, Copyholds. Forfeiture. Righta of reversioner. Eeversloner havmg no par- ticular estate. When the right to an estate In possession is barred, the right of the same person in respect of future estates in general also barred, . An administrator to claim as if he obtained the estate ■without inteiTal after death of deceased. during the term if he has allowed twenty years to elapse without taking advantage of the forfeiture. Doe v. Bingham, 3 Ir. L. E. 456. As to non-payment of rent, see post, ss. 8, 9. The right of the lord of a manor to enter for a forfeiture was harred at the end of twenty years under the old Statute of Limitations. Whelton v. Peacock, 3 M. & K. 325. In the converse case, as regards the right of the tenant and those claiming under him, it has been held under the statute of Will. 4, that on a seizure by the lord quousque, the statute begins to run from the time of the seizure, and that a claim by the heir against whom the seizure operated, is too late if made more than twenty years after the seizure. Walters v. Webb,'L.'R.,5Ch. 531. The right to recover any land or rent [charge, 9 Q. B. 355) shall be deemed to have first accrued, in respect of an estate or interest in reversion, at the time at which the same shall have become an estate or interest in possession (s. 5). Comp. sec. 20, post, and the fourth branch of sec. 3, ante, and the cases there cited. That part of the 5th section which relates to estates in reversion expectant on the determination of the particular estate applies only to cases where another person than the reversioner is entitled to the particular estate {Doe v. Mouls- dale, 16 M. & W. 689), " or, in other words, to the simple case of a reversioner having no particular estate." Sug. E. P, St. 49. The following section being connected with the 3rd and 5th sections is stated here for convenience instead of in the order of sections : — When the right of any person to recover any land or rent in respect of an estate in possession shall .have been barred by the determination of the period hereinbefore limited, and such person shall, at any time during the said period, have been entitled to any other estate, in' reversion or otherwise, no action, &c. shall be brought by him, or any person claim- ing through him, to recover in respect of such other estate, unless in the meantime the land or rent shall have been recovered by some person entitled to an estate which shall have been limited or have taken effect after or in defeasance of such estate in possession (s. 20). See as to the difference between this and the 3rd section (4th branch). Doe v. Liver- sedge, 11 M. & W. 517; and comp. sect. 5, ante; consider also the observations, Sug. E. P. St. 50 et seq. " For the purposes of the act an administrator shall be deemed to claim as if there had been no interval of time between the death of such deceased person and the grant of the letters of administration" (s. 6). Cases of Tenancy, 521 Sec. 5. — Cases of Tenancy. Tenancy at Will .. . . 521 Mortgagor .. . . . . 521 Cestui gue Trust .. ,. 521 Parol yearly Tenancy . , 521 m wr Rent 20s. and Rent under 20s. Reeei])t of Rent 522 522 522 522 When any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent (charge, 9 Q. B. 355) as tenant at will, the right of the person en- titled subject thereto, or of the person through whom he claims, shall be deemed to have first accrued either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have deter- mined : " provided always, that no mortgagor or cestui que trust shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee" (s. 7). As to what is a tenancy at will, see ante, p. 481. The proviso in this section applies, it would seem, only to cases of express trust. Doe v. Rock, 4 M. & G. 30 ; see Garrard v. Tuck, 8 C. B. 253; Sug. R. P. St. 39 et seq., and post, sec. 25. Notwithstanding the proviso, a cestui que trust may be a tenant at will within sections 2 and 3. Garrard v. Tuck, supra; Sug. R. P. St. 53 ; see Melling V. Leak, 16 C. B. 661, 667. See further as to this section, Doe V. Thompson, 6 A. & E. 721 ; Doe v. Page, 5 Q. B. 767 ; Doe v. Moore, 9 Q. B. 555 ; Doe v. Carter, ib. 863 ; Randall v. Stevens, 2 E. & B. 641 ; Locke v. Matthews, 13 C. B., N. S. 753; Hodgson v. Hooper, 3 E. & E. 149. When any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent {charge), as tenant from year to year or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom he claims to recover such land or rent {charge), shall be deemed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy shall have been received (which shall last happen) (s. 8). The word rent in this section means rent-charge, as in section 2, except at the end, where it means ordinary rent. Doe V. Angell, 9 Q. B. 355; Raines v. Lumley, 16 W. R. 674. A verbal admission by a tenant that he is paying rent is sufficient, and the case is not then within section 14 {post). Doe V. Beckett, 4 Q. B. 601. Although the instrument purporting to be a lease may be signed by the tenant, it is In the case of a tenant at will, the right shall be deemed to have accrued at the de- termination of it, or at the end of one year. Mortgagor or cestui que trust. No person after a parol tenancy from year to year or other period to have any right but from the end of the first year or such period or last payment of rent. 522 Limitations to Suits. Lease In writing, rent 20s. and upwards. Lease in writing, rent under 205. not within this section, unless it duly passes the interest of the lessor or lessors. Doe v. Gower, 17 Q. B. 589; see Sug. E. P. St. 160. Where the payment is not on account of rent, it will not prevent the operation of the statute. Att.-Gen. v. Stephens, 6 D., M. & G-. 111. Nonpayment of rent to a mortgagor creates no adverse right as against his mortgagee. Ford v. Ager, 2 H. & C. 279. .Where there is a person in possession or receipt of profits of any land, or receipt of any rent {charge) by virtue of a lease in writing, at a rent of 20s. and upwards, and the rent under it has been received by some wrongful claimant, and no rent has been afterwards paid to the rightful owner, his right first accrues when the rent was first received by the wrongful claimant, and not on the determination of the lease (s. 9). This section is an alteration of the old law. See Doe v. Angell, 9 Q. B. 328; Sug. E. P. St. 62. In cases of mere nonpayment of rent to anyone, this section does not apply. Archhold v. Scully, 9 H. L. C. 360; see Chadwick v. Broadwood, 8 Bea. 307; Doe v. Oxenham, 7 M. & W. 131 ; consider section 35, post, and the observations on it. Where the lease is in writing, but no rent, or a less rent than 20s., is reserved, the case is then subject to the old law, and the time at which the right first accrues is the time of the determination of the lease. See Doe v. Oxenham, 7 M. & W. 131 ; Chadwick v. Broadwood, 3 Bea. 308 ; Sug. E. P. St. 48. Receipt of rent to "The receipt of the rent payable by any tenant from of Droflte'*'^°°*' yeaj' to year, or other lessee, shall, as against such lessee or any person claiming under him (but subject to the lease), be deemed to be the receipt of the profits of the land for the purposes of this act " (s. 35). This section is somewhat ambiguous. Lord St. Leonards has thus explained it, " The framers of the act appear to have been apprehensive that the tenant, being in the actual receipt of the profits of the land, as that term was used in the act, might claim adversely to the lessor, who received the rent only. On the other hand, they guarded the tenant's lease against the landlord's claim, on the ground that the receipt of the rent was to be deemed a receipt of the profits of the land. It is, no doubt, a singular provision. The question could only arise between the tenant and the person receiving the rent ; and the receipt of it is made binding only against such lessee, or any person claiming under him." Sug. E. P. St. p. 47. As to the meaning of the expression " receipt of the profits of land," see ib., and ante, p. 517. Mere Entry — Continual Claim. 523 Sec. 6. — Mere Entry — Continual Claim. Mere Entry not deemed Pos- 1 Right not preserved iy con^ session .. ,. .. 623 tinual Claim, ,, ,. 623 No person shall be deemed to have been in possession a mere entry not of any land merely by reason of having made an entry j^sfonr""* ''"*" thereon (s. 10). A mere statement that possession is taken, accompanined by the removal of a stone from a vsraU and part of a fence, in the absence of the owner, is a mere entry under this section. Doe V. Coombes, 9 C. B. 714. As to what is a sufficient entry to establish the commencement of a title by possession, see Randall v. Stevens, 2 E. & B. 641 ; Locke v. Matthews, 13 C. B., N. S. 753. " No continual or other claim upon or near any land shall No right to be preserve any right of making an entry or distress or of bring- tSSIiain^ °°°" ing an action " (s. 11). As to continual claim and the cases in which it might formerly have been made, see Lit. s. 414 et seq.; Co. Lit. 249 a et seq. Sec. 7. — Possession by Coparcener — by Younger Brother. Possession hy one Coparce- Possession of younger Sro- ner, ^c. not Possession of ther not Possession of others 623 Heir 523 Possession of one or more coparceners, joint tenants, or possession of one tenants in common, shall not be deemed to have been the ™?*^'"'fi*^' possession of the other or others (s. 12). session of the For the law before the act, see Doe v. Hulse, 3 B. & C. <"''™- 757; Doe v. Prosser, Cowp. 217. The act operates to make the possession of one tenant in common a separate possession from the time of the com- mencement of the tenancy in common and not merely from the time of the passing of the act. Doe v. Horrocks, 1 C. & K. 566; see Culley v. Taylerson, 11 A. & E. 1008; Tidball v. James, 29 L. J., Ex. 91. Possession by a younger brother is not to be deemed the Younger brother, possession, &c. of the heir (s. 13). The old rule of law was different. Lit. sec. 396; Co. Lit. 242a; see Doe v. Lawley, 13 Q. B. 954. 524 Limitations to Suits. Sec. 8. — Acknowledgment. AchnomUdgment to Person entitled, or his Agent . . 524 Answer in Cliancery 524 524 it^riunflven' "^^ acknowledgment of the title of the person entitled to *o the person en- ^^y land or rent given to him or his agent in writing, signed tfbe^'eSii'vIS'*' *^ '^^ person in possession or in receipt of the rent, is equi- to possession or valent to possession hy the person to whom or to whose receipt 01 rent. agent such acknowledgment shall be given, and his right shall be deemed to have first accrued when such acknow- ledgment, or the last of such acknowledgments, if more than one, was given (s. 14). See Incorp. Soc. v. Richards, 1 Dr. & War. 258. An admission in a letter to the claimant's solicitor of rent being due is a suificient acknowledgment. Fursden v. Clogg, 10 M. & W. 572. A proposal to take a lease, signed on behalf of and in the presence of a person unable to write, is an acknowledgment by him. Corp. of Dublin v. Judge, Jl Ir. L. R. 8. An admission by answer in Chancery is sufficient. Goode v. Job, 1 E. & E. 6 ; see Moodie v. Bannister, 4 Drew. 433. An acknowledgment by deed has relation to the time of its execution, not of its date. Jaques v. Hughes, 10 Ex. 430. It must be signed by the party in possession, not by his agent. Ley v. Peter, 3 H. & N. 101 . Comp. the cases on acknowledgment in the other chapters of this title; and as to a parol admission that a person is paying rent. Doe v. Beckett, 4 Q. B. 601, ante, p. 521. To agent. Answer in Ciiancery. By agent. Disabilities. Infancy — cover- ture — lunacy- absence. Infancy — Coverture — Lu- nacy— Ahsenoe .. .. 624 Sec. 9. — Disabilities. Continued Succession of .. 525 Persons under the disability of infancy, lunacy, coverture or absence beyond seas, and those claiming through them, are to be allowed ten years from the termination of the dis- ability or death of the person to whom the n^t first accrued (s. 16). See Thomas v. Thomas, 2 K. & J. 79, ante, p. 519; Nanney v. Williams, 22 Bea. 452. In general, a person who enters on the estate of an infant is treated as a bailiff and made accountable accordingly. Crowther v. Crowther, 23 Bea. 305. Under this section the right is preserved if Disabilities. 525 the person is under one disability, e. g. infancy, at the time the right accrues, and when that disability ceases is under another, for instance, coverture {Borrows v. Ellison, L. E., 6 Ex. 128; see Pelley v. Bascombe, 11 W. R. 766), subject nevertheless to the limit imposed by section 17. Consider the observations on this section in Owen v. De Beauvoir, 16 M. & W. 567; 5 Ex. 182; and the remarks of Lord St. Leonards, E. P. St. 1\ et seq. The saving clause in sec. 16 does not operate in any continued dis- ease longer than forty years from the time the right first yeare^c^tome' accrued, notwithstanding the existence of disability during limit. the whole time, or the ten years after disability, or death, have not expired (s. 17). See Doe v. Bramston, 3 A. & E. 63. When any person shall be under any of the disabilities Ko farther time to hereinbefore mentioned at the time at which his right first successTon of afs- accrued, and shall die without having ceased to be under any abuitiea. such disability, no time beyond the said period of twenty years next after the right shall have first accrued, or the said period of ten years next after the time at which such person shall have died, shall be allowed by reason of any disability of any other person (s. 18). See Devine v. Holloway, 14 Moo. P. C. 290. No part of the United Kingdom, nor the islands of Man, Scotland, Ireland Guernsey, Jersey, Alderney, or Sark, nor any islands ad- ^Cas! ^fto °be jacent to any of them (being part of the dominions of his deemed beyond Majesty), shall be deemed to be beyond seas within the ^'^^ meaning of this act (s. 19). Sec. 10. — Tenant in Tail. Bar to, hy Non-entry, 'bars Issne and Reversioners . . 525 Discontinuance • . ■ . 625 Assurance iy, not harring Remainders .. .. 526 Object of Section . • . . 526 When time is a bar to a tenant in tail, by reason of the Bar to tenant in entry, &c. not having been made within the time before J^S™™'™!!"^ •'' '-'., . - -1.. ana revcrsiouersi limited, it operates equally against those claiming any estate he might lawfully have barred (s.. 21). And when time has begun to run against a tenant in tail, it will continue to run after his death against those whose rights he might lawfully have barred (s. 22). Thus, if there has been a discontinuance of the possession Discontinuance, by the tenant in tail, time begins to run against him and his issue from the time of such discontinuance {Austin v. 526 Limitations to Suits. Assurance by tenant in tail not barring remain- ders. Object of section. Llewellyn, 9 Ex. 276), and against those in remainder though under disabilities. Goodall v. Skerratt, 3 Drew. 216. As to the effect of a conveyance by the tenant in tail, see 2 Sm. L. C. 632; Rimington v. Cannon, 12 C. B. 16, 34, and sec. 23 ; and as to the operation of the old statute of limitations in cases of estates tail, Taylor v. Horde, 1 Burr. 60. , If a tenant in tail makes an assurance not operative to bar estates, to take eiFect after or in defeasance of his estate tail, possession under such assurance ybr twenty years after the time at which such assurance, if then executed by such tenant in tail, or by the person who but for such assurance would be entitled, would without the consent of any other person have operated to bar such estates as aforesaid, will render such assurance valid against such estates (s. 23). See Doe v. Woodroffe, 2 H. L. C. 811. The object of this section is to make adverse possession for twenty years under a base fee, created by a tenant in tail, as effectual as if (under the old law) a recovery had been duly suffered. 1 Real Prop. Eep. 79, Prop. 15; Sug. R. P. St. 86. This section only applies where the assurance by the tenant in tail is effectual to bar the issue in tail. Morgan v. Morgan, L. R., 10 Eq. 99; see Penny v. Allen, 7 D., M. & G. 409 ; consider the observations, Sug. R. P. St. 87 et seq. See as to possession under the will of a tenant in tail, Williams v. Fott, ante, p. 519. Sec. 11. — Time of Limitation in Equity same as at Law. Sar to Legal, is JBar to Equitable Right .. .. 526 Rule before Act Possession of Receiver 527 527 No suit in equity to be brought after the time when the plaintiff, if entitled at law, might hare brought an action. p.ar to equitable rights. No person claiming any land or rent in equity shall bring any suit to recover the same, but within the period during which, by virtue of the provisions hereinbefore contained, he might have made an entry or distress, or brought an action to recover the same respectively, if he had been en- titled at law to such estate, interest or right in or to the same as he shall claim therein in equity (s. 24). See as to the application of this section and the act of 7 Will. 4 & 1 Vict. c. 28, to foreclosure suits by a mortgagee, post, Chap. III. Equitable rights are barred under sec. 24, so far as they would have been barred if they had been legal rights. Limitation in Equity same as at Law, 527 Archhold v. Scully, 9 H. L. C. 360; see Penny v. Allen, 7 D., M. & G. 409. Before this act courts of equity acted Prior to the act. upon the provisions as to-limitation of actions contained in the earlier statutes of limitations, and that period of time which was a statutory bar to actions at law was equally so in equity to suits founded on substantially the same right as the right to bring an action. Hovenden v. Ld.Annesley, 2 Sch. & L. 629; Cholmondeley v. Clinton, 2 J. & W. 166. As to the effect of the possession of a receiver of the Court Possession of of Chancery, see Boehm v. Wood, T. & R. 345; Harrison '"='"'''■ V. Duignon, 2 Dr. & War. 295 ; Wrixon v. Vize, 3 Dr. & War. 104; Greenway v. Bromfield, 9 Ha. 203. Sec. 12.- WTien RigTit first accrues . . Rule prior to Act .. H-tistee and Cestui que Trust Strangers and Cestui que Trust What is an Express Trust, . Charge of Deits Trust to pay Beits .. Legacies . , , , • . " When any land or rent shall be vested in a trustee upon ni cases of express any express trust, the right of the cestui que trust, or any Bhaii'Mt'b?''' person claiming through him, to bring a suit against the deemed to have trustee, or any person claiming through him, to recover ^"^anoe'to^a such land or rent, shall be deemed to h&Ye Jirst accrued, purchaser for according to the meaning of this act, at and not before the time at which such land or rent shall have been conveyed to & purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him" (s. 25). Time was not even before this act a bar to a claim by a Euie prior to act. cestui que trust against his trustee in the case of an express trust {Chalmer v. Bradley, 1 J. & W. 51), but otherwise in Trustee and cases of constructive trust. Beckford v. Wade, 17 Ves. 97. '=^'^i^<"'"- Thus time was held to be a bar as between cestui que trust strangers and and the person who had become possessed of the trust estate, '^""P"'^'^- even by reason of the breach of trust on the part of the trustee. Bonney v. Ridgard, 11 Cox, 145; Townsend v. Townsend, 1 B. C. C. 550, 554; Andrew v. Wrigley, 4 B. C. C. 125; Beckford v. Wade, sup. And in such cases —Express Trusts, 527 Term in Trustees ,. 529 527 Purclmsers with Notice , . 529 Mistake hy Trustees 529 527 Wlien Time begins to run . . Representatives of deceased 529 527 Trustees 529 528 Cestui que Trust in Posses- 528 sion 630 528 Arrears of Rent or Interest 529 Stale Demands 530 528 Limitations to Suits, What is an express trust. Charge of debts on land. Trust to pay debts. DiiBculty in con- struction of s. 25. twenty years, -whicli was a statutory bar at law, was also, in general, a bar in equity to the claim of the cestui que trust. Smith V. Clay, cit. 3 B. C. C. 639, n.; Cholmondeley v. Clinton, 2 J. & W. 192; Foley v. Hill, 1 Ph. 399. The term " express trust" is used in opposition to trusts arising by implication, trusts resulting, or trusts by operation of law. Dickinson v. Teasdale, 1 D., J. & S. 52, 59. Thus, if a tenant for life renew leaseholds in his own name, this is a constructive trust by operation of law only, and time runs from the renewal. Petre v. Petre, 1 Drew. 371 ; post, tit. " Trusts." Where a person is in possession against both trustee and cestui que trust, this section does not apply. Burroughs v. M'Creight, 1 J. & L. 290; Commissioners of Char. Don. v. Wybrants, 2 J. & L. 191. That it may apply, there must be a trustee with an express trust and an estate in the land which is the subject-matter of the trust. Dickinson v. Teasdale, sup. A mere charge of debts on land does not in general create an express trust in favour of creditors within the 25th sec- tion, but is within sec. 40, although there may be a direction to executors to raise the charge by mortgage or otherwise, inasmuch as the executors take no estate in the land, but a mere power to raise the money charged. lb. And it would seem that generally speaking a charge of debts or legacies upon property does not create an express trust within sec. 25, but a limitation or devise to trustees, upon trust to pay them, does. Hunt v. Bateman, 10 Ir. Eq. K. 360; Dundas v. Blake, 11 Ir. Eq. R. 138; Burrowes v. Gore, 6 H. L. C. 907; Jacquet v. Jacquet, 27 Bea. 332; Watson v. Saul, 1 Giff. 188 ; Proud v. Proud, 32 Bea. 234 ; Sug. R. P. St. (2nd ed.) 103, 104. In commenting on sec. 25, Lord St. Leonards observes (R. P. St. 104), that the cestui que trust would have the same remedy for any sum of money charged upon land or rent as he would have had if his right extended to the land or rent itself. The sense in which the word "charged" is used here is explained and illustrated, ib. p. 110, pi. 29. His lordship further observes that the act has very much embar- rassed the judicial authorities, but that the construction is now settled, citing Burroughes v. Gore, 6 H. L. C. 907. In particular, the difficulty appears to be with reference to the ordinary devise or limitation of property to trustees to sell and pay debts. In Young v. Wilton, 10 Ir. Eq. Rep., the M. E., Sir T. B. C. Smith, expressly says (p. 18), " that a trust for payment of debts, although it be an express trust, does not fall within the 25th section, the subject of that section (as was stated by the late Master of the Rolls (of Express Trusts. 529 Ireland) in the case of Knox v. Kelly, 6 Ir. Eq. Eep. 285) being land or rent, in which it is impossible, from the inter- pretation clause, to comprise a gross sum of money charged on the estate." And in Lord St. John v. Boughton, 9 Sim. 223, where there was an express trust to sell and pay debts, it was considered that as no part of the proceeds of the sale had been set apart for debts, so as to raise an express trust in respect of such part, that the case was not within this section but the 40th section. Post, Chap. III. In support of these views much, perhaps, might be said, if the authorities, especially Burrowes v. Gore, 6 H. L. C. 907, and Jacquet V. Jacquet, 27 Bea. 332, were less decisive upon the point. Although in general the right to a legacy is barred at the Legacies. end of twenty years (see sec. 40, post), yet if it has become a trust fund it will be within sec. 25. Phillips v. Munnings, 2 M. & C. 309; see Harcourt v. White, 28 Bea. 303. Where a term is vested in trustees to secure a charge, the Term in tmsteos. right of the cestui que trust will continue as long as the trust subsists. Young v. Ld. Waterparh, 13 Sim. 202; aflf. 15 L. J. (N. S.) Ch. 63; Cox v. Dolman, 2 D., M. & G. 542; see Burrowes v. Gore, sup.; Lawton v. Ford, L. R., 2 Eq. 97. The ordinary vendor's lien for unpaid purchase- vendor's iien. money does not create an express trust. Toft v. Stephen- son, 1 D., M. & G. 28. The statute is not a bar as between PuTchaseis witii the cestui que trust and persons claiming under the trustees ^°^'^- who are volunteers (Burroughs v. M'Cr eight, 1 J. & L. 200, 304), or purchasers for value with notice. Hicks v. Sallitt, 3 D., M. & G. 782; see Rolfe v. Gregory, 11 Jur., N. S. 98; Ernest v. Croysdill, 2 D., F. & J. 175-198; comp. the cases, ante, p. 527. A mistake by a trustee in possession as to the persons Mistake, equitably entitled, and his treating one person as entitled to property which, in fact, belongs to another, will not affect the rights of the latter. lAster v. Pickford, 34 Bea. 576. Under the act as between the cestui que trust and purchasers When time begins for value, time begins to run from the conveyance. A pur- '" ™°' chaser by the consideration of marriage is within the act. Petre v. Petre, 1 Drew. 371. Whether the bar is complete at the end of twenty years, and conclusive against all, even cestuis que trust under disabilities, may be doubtful. See Lewin on Trusts, 633; Att.-Gen. v. Magd. Coll., 18 Bea. 239, 250; 6 H. L. C. 189. As regards a remainderman, he is entitled to the benefit of this section from the time when his right to possession accrues. Thompson v. Simpson, 1 Dr. & War. 489 ; Burrowes v. Gore, 6 H. L. C. 907. The personal representatives of a deceased trustee are liable to Jrarteer W. MM Representatives of deceased 530 Limitations to Suits. Cestui que trust in possession. Arrears of rent or interest. Charities Stale demands. the extent of the assets in their hands to make good the loss occasioned by his breach of trust, and the Statute of Limita- tions, which would not be a bar in his favour, is equally un- availing for them. Phillips v. Munnings, 2 M. & C. 309 ; see Obee v. Bishop, 1 D., F. & J. 137; Butler v. Carter, L. R., 5 Eq. 276 ; Brittlebanh v. Goodwin, ib. 545 ; Wood- house V. Woodhouse, L. E., 8 Eq. 514. The cases ot Dunne V. Doran, 13 Ir. Eq. 545, and Brereton v. Hutchinson, 3 Ir. Ch. 361, are contra, but are not followed. A cestui que trust in possession (see Melling v. Leak, 16 C. B. 652) is in law tenant at will to the trustee ( Garrard v. Tuck, 8 C. B. 231), and, being in possession under an express trust {Doe V. Rock, 4 M. & Gr. 30), time does not run against the trustee or other cestuis que trust until the determination of such tenancy {ib.; Petre v. Petre, 1 Drew. 371); though when a person gains possession under a cestui que trust, and occupies, without payment of rent to, or acknowledgment of title in, any one, the statute begins to run from that time against both cestui que trust and trustee. Melling v. Leak, sup. On section 7 {^ante, p. 521), the term cestui que trust in that section has been held to mean a cestui que trust under an express — not under an implied — trust. Doe ■v. Rock, 4 M. & Gr. 30 ; see, however, 2 Sm. L. C. 654. The 42nd section {post, p. 540), by which the recovery of arrears of rent or interest is limited to six years, does not apply as between trustee and cestui que trust {post, p. 542). Although charities are within the act, they are within the exception of the 25th section ( Com. Char. Don. v. Wybrants, 2 Jo. & L. 1 82) ; consequently time is nobar as between charities and their trustees, though it is as between charities and other persons — for instance, purchasers from their trustees. Ib. ; Att.-Gen. V. Magd. Coll., 6 H. L. C. 189. The rule before the act was that length of possession would not prevail against charitable trusts, where the land was purchased with notice of the trust. Att.-Gen. v. Christ's Hosp., 3 M. & K. 344; see Att.-Gen. v. Mayor of Bristol, 2 J. & W. 321. In conclusion it must be observed that, notwithstanding the terms of this section, the 'general rule is that stale de- mands are not to be encouraged. M'Donnel v. White, 11 H. L. 0. 271 ; Bright v. Legerton, 2D., F. & J. 606; see Butler V. Carter, L. R., 5 Eq. 276. Concealed Fraud. 531 Sec. 13. — Concealed Fraud. Wlien Right first accrues . . 631 Mere wrongful Entry . . 531 Length, of Time ., .. 531 Family Settlements . . 531 Persons of unsound Mind . . 531 Laches ,. .. . . 531 In every case of a concealed fraud, the riglit shall be in cases of frami, deemed to have first accrued at and not before the time at whilst the fmu"" which such fraud shall, or, with reasonable diligence, might remains couceaied. have been first known or discovered ; nothing in this clause is to enable any owner of lands or rents to recover against any bona fide purchaser for value, who has not assisted in the commission of such fraud, and who at the time that he made the purchase did not know and had no reason to believe that any such fraud had been committed (s. 26). This does Mere wrongful not apply to the case of a mere wrongful entry into posses- ^"''■^■ sion, but to a case of designed fraud and concealment and possession by means of it. Petre v. Petre, 1 Drew. 397 ; Thruston v. Anstey, 27 Bea. 335 ; Sug. E. P. St. 98 ; see Rolfe V. Gregory, 1 1 Jur., N. S. 98. This section is founded Length of time on the well-known principle of equity, that where there is °° '"^" fraud, no length of time will be a bar to it. See Whalley V. WTialley, 1 Mer. 436 ; Trevelyan v. Charter, 4 L. J., Ch. 209; Rolfe v. Gregory, 11 Jur., N. S. 98. But it must be proved that reasonable diligence in discovering the fraud was used. Chetham v. Hoare, L. R., 9 Eq. 571. An agree- FamUy settle- ment on a settlement of family disputes will be set aside '"^'''^• where one party has been guilty of gross fraud and conceal- ment of the rights of the other. Gordon v. Gordon, 3 Sw. 400. See the cases, ante, p. 60. Procuring instruments Dealings with to be executed by a person of unsound mind is a fraud within p^«^°°s »""'=»""« this section. Lewis v. Thomas, 3 Ha. 26. There must. Laches, acqui- however, be no laches or acquiescence in the frand by the '*'^™'=*- person affected by it after he has discovered it. Blenner- hasset v. Day, 2 B. & B. 118. The principle and doctrine of the court upon which the cases of acquiescence rest is recognized and embodied in the following section. Sec. 14. — Acquiescence. Jurisdiction of Equity . . 531 | Mistalte .. , . . . 532 Nothing in this act contained shall be deemed to interfere saving the jaris- with any rule or jurisdiction of courts of equity in refusing on the"groundof M M 2 532 Limitations to Suits. lujquleacence or otherwise. As between trus- tee and cestui que trust. Clear evidence of. relief, on the ground of acquiescence or otherwise, to any person whose right to hring a suit may not be ban-ed by virtue of this act (s. 27). Acquiescence implies knowledge of rights and of all the material circumstances of the case. Marker y.- Marker, 9 Ha. 16; Life Assoc, of Scotland y. Siddal, 3 D., F. & J. 58. See the doctrine of acquiescence stated by Lord Cottenham in Amherst v. D. of Leeds, ante, p. 311. The question whether there has or has not been ac- quiescence does not arise where all parties are under the in- fluence of a common mistake. Cholmondeley v. Clinton, 2 Mer. 171, 362. There can be no acquiescence in a trans- action brought about by the exercise of undue influence so long as the influence continues. Purcell v. M'Namara, 14 Ves. 91, 122, ante, p. 291. In cases on the subject of acquiescence before the act, it was held, that the question of acquiescence does not arise where a trustee purchases the property of his cestui que trust, until the latter knows that the former is the purchaser {Randall v. Errington, 10 Ves. 423), and that there must be clear evidence of acquiescence or confirmation. Morse v. Royal, 12 Ves. 355. In Browne v. Cross, 14 Bea. 105, it seems to have been considered that a cestui que trust, though his interest is reversionary (who knows of a breach of trust), is bound to take steps promptly to have the matter set right. The court, however, dissented from this view in Life Assoc, of Scotland v. Siddal, 3 B., F. & J. 58. Clause 28 relates to mortgages, post. Chap. II. land. P.eDt. Sec. 15. — Church Property— Suits in Ecclesiastical Courts. Land or Rent Advowsons . . In Remainder 532 532 533 m Hcclesiastioal Court 633 Tithes — Legacies .. ... 533 The following sections prescribe the periods of limitation with respect to rights to church property: — Land or rent must be recovered by spiritual or elee- mosynary corporations sole within two incumbencies and six years, or sixty years after the time the right accrued (s. 29). No advowson shall be recovered but within three mcum- bencies or sixty years (s. 30). Incumbencies after lapse to be reckoned within the period, but not incumbencies after promotions to bishoprics (s. 31). See 6 & 7 Vict. c. 54, s. 3. Church Property, SfC. 533 Every person claiming a right to present to or bestow any when person ecclesiastical benefice, as patron thereof, by virtue of any vo4™™\i re°^ estate, interest or right which the owner of an estate tail in mainder, &o after the advowson might have barred, shall be deemed to be a tebaSeU. ^ '^ person claiming through the person entitled to such estate tail, and the right to bring any quare impedit, action or suit shall be limited accordingly (s. 32). No advowson shall be recovered after 100 years' adverse one hundred possession (s. 33). Jolsl^r^" Suits for tithes, legacies or other property in any spiritual Tithes. court are to be subject to the same statutory limitations as Legacies. actions at law or suits in equity (s. 43). Sections 36, 37 and 38 relate to real and mixed actions, which are abolished; and section 39 to descent cast, discon- tinuance and warranty, which have no longer any operation to defeat any right of entry or action for the recovery of land. See Shelford, E. P. S. 246, n. {g). Section 40 is considered. Chap. III. Section 41 relates to dower, ante, p. 356. Section 42 is considered, Chap. IV. The act does not extend to Scotland, but does to Ireland by the operation of section 44 (and last) and the 6 & 7 Vict. c. 54 (amended 7 & 8 Vict. c. 27). CHAPTER n. EQUITIES OF EEDEMPTION. 3^4 Will. 4, c. 27, s. 28 . . 533 'Prventy Years' Possession by Mortgagee . . . . 533 Several Mortgagors . . 534 Several Mortgagees . . . . 534 Mortgage on Joint Account . 534 When Time begins to run — Welsh Mortgage .. . . 534 Possession of Mortgagee must be adverse . . .. 534 Achnowledgment of Title of Mortgagor .. . . . . 535 Bt the 3 & 4 Will. 4, c. 27, s. 28, when a mortgagee shall Mortgagor to be have obtained possession or receipt of rent of any land com- oftwen^y'yMra* prised in his mortgage, the mortgagor, or any person claiming from the time through him, shall not bring a suit to redeem the mortgage ^ee took"os'." but within twenty years next after the time at which the session, or from 1,, ■ j' 1. ■ ■ i. ^i ^- the last ivrit ten mortgagee obtained sucn possession or receipt, or the time acknowledgment, of an acknowledgment of the mortgagor's right of redemp- tion given to the mortgagor, or some person claiming his estate, or to the agent of such mortgagor or person, in writing signed by the mortgagee or the person claiming through hira. An acknowledgment to any of such mortgagors or 534 Limitations to Suits. Several mort- gagora. Several mort- gagceB. 3 on a joint account. Eule prior to act. Welsh mortgages. Possession of mortgagee must be adverse. persons, his or their agent, shall he as effectual as if given to all; but an acknowledgment by any one or more of such mortgagees or persona shall be effectual only as against the party or parties signing and those claiming under, after or in defeazance of him or them. And when he or they shall be entitled to a divided part of the property comprised in the mortgage and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shaU be entitled to redeem the same divided part on payment, with interest, of the part of the mortgage money which shall bear the same proportion to the whole of the mortgage money as the value of such divided part shall bear to the value of the whole mortgaged property. The latter part of this section only applies where there are several mortgagees and where an account against one mortgagee will only bind that one, and not to the case of a mortgagee on a joint account. la such a case there must be an aclinowledgment by all. Richardson v. Younge, L. E., 10 Eq. 275. Prior to this act the rule of equity, by analogy to the earlier Statute of Limitations at law, was that, after twenty years' possession, a mortgagee should not be disturbed [Anon., 3 Atk. 313; Cholmondeley v. Clinton, 2 J. & W. 191), unless the mortgagor was under certain disabilities (id.), or there had been an acknowledgment of the mortgagor's equity. Price v. Copner, 1 S. & S. 347. The mortgagor's right was not barred if he was in possession of any part of the estate; for the rule to apply, the mortgagee must have been in possession of the whole. Burke v. Lynch, 2 Ba. & Be. 426; see Blake v. Foster, ib. 387; Lord v. Thomas, 3 Ves. 22. As to Welsh mortgages, possession by the mortgagee was part of the co?itract, and such mortgages were redeemable at any time, until the mortgagee had been in possession twenty years, after having been paid his principal and interest. Yates v. Hambly, 2 Atk. 360; Femoick v. Reed, 1 Mer. 114. Such mortgages are now very uncommon (post, tit. "Mortgage"); and there is, it would seem, no decision as to the effect of the 3 & 4 Will. 4, c. 27, upon them. The possession of the mortgagee must be adverse. There- fore if the tenant for life and the remainderman join in mortgaging, and the mortgagee afterwards buys the estate of the tenant for life, the time will not run during his life. Hyde V. Dallawai/, 2 Ha. 528; see Wynne v. Sty an, 2 Ph. 303; Harrison v. Hollins, 1 S. & S. 471. Where the pos- session is adverse time runs against the mortgagor from the Equities of Redemption. 535 moment the mortgagee takes possession, and continues to I'un against all those claiming under the mortgagor, what- ever may be the disabilities to which thoy may be subject {Raffety v. King, 1 Ke. 601), and although some of such claimants may be remaindermen, for successive rights are not given. Thus, where a person devises to several in succession and then mortgages, the bar to the testator is a bar to his devisees. Browne v. Bp. of Cork, 1 Dr. & Wal. 700. A recital of the mortgage and assignment of it, subject to Acknowledgment the equity of redemption, is no acknowledgment of the mort- gagorf " """^ ' gagor's title, if he is no party to the assignment. Lucas v. sccitaL Dennison, 1 3 Sim. 584 ; see Batchelor v. Middleton, 6 Ha. 75 ; comp. Forsyth v. Bristowe, 8 Ex. 716, post, p. 539, on the 40th sect. Whether an acknowledgment by an agent of the mortgagee would be good is doubtful. See Hyde V. Johnson, 2 B., N. C. 776 (on the 9 Geo. 4, c. 14). A written acknowledgment to a stranger is not sufficient, to a stranger. The acknowledgment must be to the mortgagor or his agent, who may be a person acting in that capacity without any formal or actual authority, at all events if the mortgagor adopts what has been done. Trulock v. Robey, 12 Sim. 402. An acknowledgment by the mortgagee to his own solicitor to solicitor of is insufficient. Stansfield v. Hohson, 16 Bea. 236. The mortgagee. acknowledgment may be made after the mortgagee has been in possession twenty years. Stansfield v. Hohson, 3 D., M. & G. 620. An express acknowledgment of the right to Express or im- redeem is not necessary. Thus it has been held to be suffi- pj^aacknowiedg- cient where the mortgagee wrote — " I do not see the use of a meeting, unless some one is ready to pay me otT." Ih.; see Hodle v. Healey, 6 Madd. 181 ; Trulock v. Rohey, 12 Sim. 402; Richardson v. Younge, L. E., 10 Eq. 275. So an answer in Chancery is a sufficient acknowledgment. Goode V. Joh, 1 E. & E. 6. Qu. whether keeping accounts Keeping account of the rents received would be an acknowledgment {Baker °* '™*'- V. Wetton, 14 Sim. 426) : Lord St. Leonards appears to be of opinion that it would not be. Sugd. R. P. St. 117. The acknowledgment must be not merely that the mortgagee holds under a mortgage title> but that some person has a right to redeem him. Thompson v. Bowyer, 9 Jur., N. S. 863. An acknowledgment by the devisee in tail of the mort- By devisee in tail. gagee is good against those in remainder under the devise. Pendleton v. Routh, 1 D., F. & J. 81; see the observations on this case, Sug. R. P. St. 113 e< seq.; comp. the cases on acknowledgment in the other chapters of this title. Whether Disability. the saving clauses of the act in cases of disability {ante, p. 524) apply to the case of a mortgagor, see E'isher on Mort- gages, 290 (cl. 506). As to actions of ejectment and fore- closure suits by a mortgagee, see post. Chap. III. 536 Limitations to Suits. CHAPTER III. MORTGAGE AND JUDGMENT DEBTS— LIENS- LEGACIES. -CHAEGES- 3 ,^ 4 Will. 4, e. 27, s. 40 . . Twenty^ Yean a Bar Unless part Payment or Ac- linowledgment Presvmption prior to Act. . ^ectment and Foreclosure 7 Will. 4 ^ 1 Vict. 0. 28 , WJten Time begins to run . 536 536 636 536 636 537 537 537 Smts hy otlier Creditors . . 537 Lien 537 Legacies 538 Probate Notice to Legatees . 538 Cases of Intestacy . . .. 538 Present Bight to receive . . 538 Payment 639 By whom 539 Aclmowledgments .. ,. 639 19 S- 20 Viet. e. 97 . . . . 539 Money charged upon land and legacies to be deemed satisfied at the end of twenty years, if there shall be no interest paid or acknowledgment in writing in the meantime. Presumption of satisfaction of mortgage. Ejectment and foreclosure by mortgagee. Bt the 3 & 4 Will. 4, c. 27, s. 40, no action, suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the prin- cipal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit or proceeding shall be brought but within twenty years after such payment or acknowledgment, or the last of such pay- ments or acknowledgments, if more than one, was given. Before the statute, possession by the mortgagor for twenty- five years {Hillary v. Waller, 12 Ves. 266), or even, it would seem, twenty years ( Christophers v. Sparke, 2 J. & W. 233), without payment of interest, raised a presumption of satisfaction of the mortgage debt. By this section the period for the recovery of the mortgage debt is limited. But there is no express provision in the act with regard to actions of ejectment and foreclosure suits by a mortgagee. A.s to actions of ejectment by a mortgagee, it was observed by Mr. J. Patteson, in Doe v. Williams (5 A. & E. 291), that he could not say how far under section 3 it was neces- sary for the mortgagee to bring his action within twenty years from the day of default. If this section was in- tended to comprehend the case of a mortgagee, it was very ill penned ; and the 40th section, if meant to apply to actions of ejectment, was still worse penned. This expres- Mortgage and Judgment Debts, S)-c. 537 iion of opinion was followed by the 7 Will. 4 & 1 Vicf. ;. 28, by which it is enacted, that any mortgagee of land 'within the definition in the 3 & 4 Will. 4, c. 27, s. 1 ) may make an entry or bring an action at law or suit in equity to recover such land at any time within twenty years next ifter the last payment of any part of the principal money or interest secured by the mortgage, although more than twenty years may have elapsed since the time at which the right first accrued. The same principle of construction is ipplicable to this act and to the 40th section of the 3 & 4 Will. 4, c. 27. Chinnery v. Evans, 11 H. L. C. 115. The payment of interest by the receiver of the Court of Chancery of one estate only, comprised with others in one mortgage, keeps alive the mortgagee's right as to all the , 3states. lb. ; comp. Balding v. Lane, 1 D., J. & S. 122; oost, p. 542, on section 42. The time to bring ejectment by a mortgagee begins to run when time begins from the execution of the mortgage deed, unless there is a *° ™'" provision that the mortgagor shall remain in possession until ;he day of default in payment. Doe v. Lightfoot, 8 M. & W. 533. The act enables a mortgagee to recover in certain :ases when the mortgagor would be barred, if when the nortgage was made he was not barred. Doe v. Eyre, 17 Q. B. 366 ; Doe v. Massey, ib. 373. Thus payment of interest by a mortgagor may keep alive the right of a mort- gagee against a tenant in possession, though by reason of his aon-payment of rent to the mortgagor his right is barred. Ford V. Ager, 2 H. & C. 279; see Murphy v. Sterne, 1 Dr. & Wal. 236 ; Thorp v. Facey, 12 Jur., N. S. 741; consider ;he observations, Sug. R. P. St. 30, 31. The right to bring a foreclosure suit falls within the 24th Foreclosure suit. section of the 3 & 4 Will. 4, c. 27, and 7 Will. 4 & 1 Vict. J. 28; Wrixon v. Vizer, 3 Dr. & War. 104, 118. Such a mit is not a suit for the recovery of money charged on the and, though it may lead to it, but a suit to obtain the equity jf redemption, which in equity is an actual estate. Ib.; juestioning Dearman v. Wyche, 9 Sim. 570. Before the judgments, itatute, a bill filed by one creditor on behalf of himself and )ther creditors, prevented the statute from running against ;hose creditors who came in under the decree. Sterndale T. Hankinson, I Sim. 393 ; see Birmingham v. Burke, 2 r. & L. 699. And this would still seem to be the rule since he act. Bennett v. Barnard, 12 Ir. Eq. Rep. 229; Carroll '. Darus, 10 Ir. Eq. Rep. 321 ; Barrington v. Evans, 1 Y. & y., Ex. 484, appears contra, but is explained, Sug. R. P. St. 24 et seq. The lien of an unpaid vendor, the purchaser Lien, leing let into possession, is within this section, but it does 538 Limitations to Suits. Sioney payable out of land. Legacies. Probate is notice to legatees. Hand to pay hand to receive. Cases of intestacy. Present right to receive. not create an express trust within section 25 (ante, p. 5271 ^A^A -^f^^^T**,' ^ ^''- 1- ^°»ey due on a bond in which the heirs of the obligor are bound would seem not to be money charged upon or payable out of land within this section Eoddam v. Morley, 1 D. & J. 1. This section applies to legacies payable out of personalty as well as realtv Sheppard v. Duke, 9 Sim. 567. And to a residue of per- sonal estate. Prior v. Horniblow, 2 Y. & C 200- see Christian v. Devereux, 12 Sim. 264. A personal annuity IS a legacy withm this section. Sug. E. P. St. 138. " The probate of the will is notice to everybody having any claim, and the statute does not provide any indemnity or save any rights because a legatee does not know of his legacy." Per M. U., Cadbury v. Smith, L. E., 9 Eq. 43. The I'ight of the residuary legatee may be good as to assets possessed by the executor within twenty years of the claim, though barred as to assets possessed by him before that time. Adams v. Barry, 2 Coll. 290; Bright v. Larcher, 4 D. & J. 608. Although legacies may be charged on real estate, this will not create an express trust within section 25 {ante, p. 527) (Proud V. Proud, 32 Bea. 234), unless the executor con- stitutes himself a trustee of the legacy. Tyson v. Jackson, 30 Beav. 384. As to an acknowledgment by one of two executors, see Holland v. Clark, 1 Y. & C. C. 151. When the person liable to pay a legacy and the person entitled to receive it are the same, no question of limitation under the statute can arise. Binns v. Nicholls, L. E., 2 Eq. 256; see Burr ell v. Lord Egremont, 7 Bea. 205; Burrowes V. Gore, 6 H. L. C. 907 ; Seagram v. Knight, L. E., 2 Ch. 628. The provisions of section 40 are extended by the 23 & 24 Vict. c. 38, s. 13, to cases of intestacy, and the same period of twenty years is made a bar to suits against an adminis- trator for the recovery of any part of an intestate's estate, unless there has been part payment, or an acknowledgment in writing by the person accountable, or his agent, to the person entitled or his agent. By the words " a present right to receive" is to be under- stood " an immediate right without waiting for the happening of any future event." Farran v. Beresford, 10 CI. & F. 319, 334. But legatees whose legacies are subject to prior chai'ges are not barred while any prior charges subsist {Faulkner v. Daniel, 3 Ha. 212) ; and if an estate on which a legacy is charged is so incumbered that it is uncertain whether the legacy will be paid, it is doubtful whether a present right to receive it can be said to exist within the meaning of the act Ravenseroft v. Frishy, 1 Coll. 22. And if a legacy be given Mortgage and Judgment Debts, ^c. 539 ) one for life, with remainder to another, the latter has no resent right until the death of the former. Prior v. Hor- iblow, 2 Y. & C. 200; JEarle v. Bellingham, 24 Bea. 445. The statute does not expressly state by whom interest is to be Payment, aid. Payment,however,byanagentdulyauthorizedwouldbe Agent. ifficient, though not if made by a mere stranger. Homan . Andrews, 1 Ir. Ch. E. 106. See Chinnery v. Evans, 11 [. L. C. 115. Payment by the mortgagor's widow, who is □titled to dower, and is in possession with the consent of the eir of the mortgagor, is sufficient. Ames v. Mannering, 6 Bea. 583. But if made by the devisee of an estate harged with part of the debt, it will not be good against tie devisee of another estate charged with other part of tie debt. Dickinson v. Teasdale, 1 D., J. & S. 57. The Part payment, eceipt of rents by a mortgagee in possession has been held 3 be equivalent to part payment to him. Brocklehurst v. '^essop, 7 Sim. 438. But this case has not been followed. See ^ordham v. Wallis, 10 Ha. 228; Putnam v. Bates, 3 Russ. 88; consider White v. Hillacre, 3 Y. & C, Ex. 307. Pay- lent of interest by a receiver in chancery is sufficient as ayment by an agent of the party liable. Chinnery v. ^vans, 11 H. L. C. 115. Acknowledgments by part pay- lent, or by admission in writing, are placed upon the same ooting, so far as regards their sufficiency to take a case out if the statute. lb. As to the necessity of an actual pay- aent in money, see Maher v. Maber, L. R., 2 Ex. 153. By this section acknowledgment by an agent of the party Acknowledgment, table is expressly made sufficient; but this is not the case in ^y^'^"™- ections 14, ante, p. 524, and 28, ante, p. 533: it would seem, herefore, that the operation of section 40 was intended to be irger in this respect. An acknowledgment by the solicitor f the party liable will be sufficient. Toft v. Stephenson, D., M. & G-. 28. So, if made by a trustee to pay debts; Ld. St. John V. Boughton, 9 Sim. 219; compare the cases n acknowledgment and part payment in the other chapters f this title. An acknowledgment that interest has been To whom, laid may be by a recital in a transfer of the equity of re- demption. Forsyth v. Bristowe, 8 Ex. 716; comp. Lucas : Denison, 13 Sim. 584, ante, p. 535, on the 28th section, n Forsyth v. Bristowe, sup., it was doubted whether sec. 40 pplied to any but remedies against the realty, and therefore rhether it extended to actions on mortgage, covenants or onds. If so, the acknowledgment must be to the party ntitled or his agent, whereas on an ordinary covenant or ond, the acknowledgment, though not to the party entitled r his agent, would be sufficient. The 19 & 20 Vict. c. 97, s. 10, enacts, amongst other i9& soviet, aings, that no person shall be entitled to any further time "■ ''■ 540 Limitations to Suits. to bring an antion or suit with respect to which the period of limitation is fixed by (.inter alia) sections 40, 41 and 42 of the 3 & 4 Will. 4, c. 27, merely by reason of his absence beyond seas or imprisonment at the time of the accrual of the right. But there would seem to be no clause in this act giving a further time in such cases under these sections. Section 16, which does relate to the disability of absence beyond seas, applies only to rights in respect of land or rent. CHAPTER IV. ARREARS OP RENT AND INTEREST. 3 # 4 Will i, c. 27, «. 42 . . 540 Six Yean 640 Annuities . . . . • ■ 640 Mortgages 641 Judgments . . ■ ■ • • 541 Money secured on Land and ■ by Specialty .. ..541 Redemption Suit . . . . 541 Forelosure Suit . . • • 541 Term 541 Ih-ust 541 Acknowledgment .. .■ 542 Persons under Disabilities . 542 Part Payment . . . . 542 No arrears of rent Bt the 3 & 4 Will. 4, c. 27, s. 42, no arrears of rent or of ™- intovoaf fn hPi • - _ _ , • - i- ^P „^nnna-ii t^lifivnoA tinnvi HT naiWOle out or interest to be recovered for more than six years. interest in respect of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages, in respect of such arrears of rent or interest, shall be recovered but within six years next after the same shall have become due, or next after an acknowledgment ot the same in writing shall have been given to the person en- titled thereto, or his agent, signed by the person by whom the same was payable, or his agent Where any prior mortgagee or other incumbrancer shall have been »» i'os- sessionoi any land, or in the receipt of the profits thereof within one year next before an action or suit shal be brought by any subsequent mortgagee or other mcumbrancer on the same land, the latter may recover the arrears of m- terest which shall have become due iuv.ng the Retime of such possession or receipt as aforesaid although exc ed- ing the six years. An annuity charged by will on land comes within this section, and only ^i^ years' arrears are recoverable. Ferguson v. Livingston, 9 ir. Jiq. «• -^"^j see James v. Salter, 3 B. N. C. 544, 552. A mere personal annuity, however, is not within it {Roch v. Callen, b Ha. 531; Re AshwelVs Will, Johns. 112); nor an annuity charged on a reversionary interest, so long as it is revOT- Seoured.yaeoa. sionary. Wheeler.. Hoivell,ZK.&S.m. Where the secured by a ^^^^. J^ .^ ^^^^^^^ ^^ ^^^^^ ^^^^^^ ^^^^^, ^^^^^^ ^^^ fe^ Annuity charged on land. Arrears of Itent and Interest. 541 covered under the 3 & 4 Will. 4, c. 42, s. 3 {Paget v. ^ley, 2 B. N. C. 679; Strachan v. Thomas, 12 A. & E. 6; Manning v. Phelps, 10 Ex. 59); and where there is Trust for payment trust for the payment of the annuity, the right to arrears "'■ not limited to six years (Playfair v. Cooper, 17 Bea. 187 ; where the annuity is secured by a term. Snow v. Booth, K. & J. 132 ; aff. 2 Jur., N. S. 244 ; see Knight v. Bowyer, Jur., N. S. 569. An interest in or right to a share of Dney to arise from the sale of real estate is money payable t of land within this section. Bowyer v. Woodman, L. R., Eq. 313. A mortgagee, irrespective of any covenant, is entitled to Mortgages where t years' arrears. Shaw v. Johnson, 1 Dr. & S. 412. no covenant. A judgment creditor who obtains possession is an incum- judgment debt. ancer within the act. Henry v. Smith, 2 Dr. & W. 381. In those cases in which a mortgagee or other person has Money secured e security of land as well as that of a bond, covenant or spectafty^n-Ifdg- dgment for payment of money, this section must be read in ment. nnection with section 3 of the 3 & 4 Will. 4, c. 42. Post, lap.V. Construing the two sections together, with reference claims for interest, the result is that a person who has the luble security has his remedy against the land for the six iars' arrears under the 3 & 4 Will. 4, c. 27, s. 42, and under e specialty or judgment for the remainder of the arrears. ^unter v. Nockolds, ] Mac. & G. 640, overruling Du Vigier Lee, 2 Ha. 326; and see Shaw v. Johnson, 1 Dr. & S. [9; Hughes v. Kelly, 3 Dr. & War. 482. And if the ivenant cannot be made available, only six years' arrears e recoverable. Bowyer v. Woodman, L. R., 3 Eq. 313. ''hen the arrears can be tacked, as they in general can, against Kedemptlon suit, e heir or devisee of the mortgagor (see tit. " Mortgage") a redemption suit by either of them, the arrears, though r more than six years, must be paid. Elvy v. Norwood, De Gr. & S. 240. Whether this would be so in a suit by e mortgagor himself, see ib.; Sinclair v. Jackson, 17 Bea. )5. In a foreclosure suit under an ordinary mortgage deed Foreclosure suit, ily six years' arrears are recoverable. Round v. Bell, 30 ea. 121; Shaw v. Johnson, 1 Dr. & S. 412; Du Vigier v. ee, 2 Ha. 326, contra, is overruled. And although the Beversionary in- terest mortgaged is reversionary, only six years' arrears '^''^''■ ,n be recovered under this section. Sinclair v. Jackson, .p.; see Wheeler v. Howell, 3 K. & G. 198. Where a term is created {Cox v. Dolman, 2 D., M. & G. secured by term. 12; Snow V. Booth, 8 D., M. 8e G. 69) and assigned, or ;reed to be assigned, though a dry, satisfied term, as curity for payment of principal and interest, the arrears coverable will not be limited to six years. Shaw v. ihnson, 1 Dr. & Sm. 412. 542 Limitations to Suits. Suit to recover After a sale by a mortgagee under a power of sale, it was interest. held, in a suit by a mortgagor to recover the surplus money, that the mortgagee could only retain six years' arrears {Mason V. Broadbent, 33 Bea. 296); but this decision has been questioned in Edmunds v. Waugh, L. R., 1 Eq. 418. In the latter case the mortgaged property was sold by the trustees of the mortgagee, and the proceeds paid into court in a suit for the administration of the mortgagee's estate. It was held, on a petition by the trustees for payment out of the fund to satisfy the arrears of interest, that such arrears were not limited to six years. Trust. Where there is a trust for payment of the mortgage debt, the right to recover arrears is not limited to six years. Lewis V. Buncombe, 29 Bea. 175; Shaw v. Johnson, 1 Dr. & S. 412; see Cox v. Dolman, 2 D., M. & G. 592; Hughes V. Wells, 3 Mac. & G. 683. Acknowledgment. An acknowledgment, by tenant for life of a settled estate, of arrears of interest being due on a mortgage, takes the case out of the statute as against those in remainder. Re FitzMaurice, 15 Ir. Ch. R. 445. Where there are several mortgagees, a written acknowledg- ment by the mortgagor of interest, barred by the statute, being due on one of them, will not be suiScient to make it chargeable on the estate as against a subsequent mortgagee. Bolding v. Lane, 1 D., J. & S. 122; comp. CMnnery v. Evans, 11 H. L. C. 115; ante, p. 537, on sec. 40; and see the cases on acknowledgment in the other chapters of this title. There is no exception in this section with respect to persons who are under disabilities. Sug. R. P. St. 140. Neither is there any provision making part payment equiva- lent to acknowledgment, lb. 141; see CMnnery v. Evans, 11 H. L. C. 115. Persons under disabilities. Part payment. CHAPTER V. SPKCIALTIES— RECOGNIZANCES. 3^4 Will. i,c.i2.. . . 542 Twenty Tears' Limit , . 643 Time of Breach ■• ■■ 543 Disabilities . • •• •• 543 Achnomledgment Part Payment By or to mliom By Party inter 543 543 543 544 Limitation of ac- tion of debt on flpecialtlea, &c. By the 3 & 4 Will. 4, c. 42, actions of debt for rent upon any indenture of demise, actions of covenant or debt upon any bond or other specialty, &uA actions of debt ov scire faciasw^oTi Specialties — Recognizances. 543 recognizances, must be brouglit within twenty years after the cause of such actions or suits. The act does not extend to any action given by any statute where the time for bringing such action is or shall be by any statute specially limited (s. 3). Under a bond or covenant by a husband on his marriage Time of breach. to pay a sum of money to trustees, the first trust of the in- terest being for himself for life, time does not run during his life, at all events unless there is a time fixed with cer- tainty for payment and investment of the money in other secm-ities. Mills v. Borthwick, 11 Jur., N. S. 558. But under a covenant to pay at a particular time, the statute begins to run from that time. Stone v. Stone, L. R., 5 Ch. 74. Persons under the disability oiminority, coverture, lunacy Disabilities. (and formerly absence beyond seas, repealed 19 & 20 Vict. Minority. c. 97, s. 10), have the same time after the disability has ^°™^'"'''' ceased ; where defendants are beyond seas, plaintifis have De™„Xnt3 be- the same time after their return. 3 & 4 Will. 4, c. 42, s. 4. youd seaa. As to what places are beyond seas, see sec. 7, which is the same as sec. 19 of the 3 & 4 Will. 4, c. 27, ante, p. 525. If any acknowledgment be made, either by writing Adtnowiedgment signed by the party liable by virtue of such indenture, ^Tpaym'ent."^ specialty or recognizance, or Ms agent, or by part pay- ment or part satisfaction on account of any principal or interest being then due thereon, the person entitled may bring his action for the money remaining unpaid, and so acknowledged to be due, within twenty years after such acknowledgment by writing or part payment or part satis- faction as aforesaid, or in case the person entitled to such action shall at the time of such acknowledgment be under such disability as aforesaid, or the party making such ac- knowledgment be, at the time of making the same, beyond the seas, theij within twenty years after such disability shall have ceased as aforesaid, or the party shall have re- turned from beyond seas, as the case may be. 3 & 4 Will. 4, c. 42, s. 5. An acknowledgment to be valid need not be made to the xowhomaciHio-n-- creditor or his agent, but may be to some third person, un- J^^""' ""■'^ ^"^ like the acknowledgment under the 3 & 4 Will. 4, c. 27, s. 40 {ante, p. 539). Forsyth v. Bristowe, 8 Ex. 716. In Moodie V. Bannister, 4 Drew. 433, an admission by an answer in Chancery was held sufficient. A simple admission of the debt being due is sufficient under this section. lb.; comp. the cases on the 9 Geo. 4, c. 14, s. 1, post. Chap. "VT. This sec- tion, it will be observed, makes the acknowledgment by the agent valid, but there is no reference to an agent in the latter part as to part payment. But it has been held that Payment, by or to payment by an agent is sufficient, and that the assignee of ^''°™' 544 Limitations to Suits. Payment by stranger. By devisee for life. Ry party in- terested. au equity of redemption is an agent of the mortgagor within this section. Forsyth v. Bristowe, 8 Ex. 716. It was observed by Lord Chelmsford, L. C, in Coope v Cresswell (L. R, 2 Ch. 124), that it could hardly have been intended that payment by a stranger should be sufficient. Where a devisee for life paid interest on a specialty of his testator in which the heirs were bound, it was held to be a sufficient acknowledgment within this section. Roddam v. Morley, 1 D. & J. 1; cons. Coope v. Cresswell, sup.; Lord St. Leonards approves ot Roddam v. Morley, E. P. St. 145; comp. the cases on "Acknowledgment" in the other chapters of this title. The payment must be by a party interested,— by a party who, unless he paid it, would lose his land. Toft v. Stephen- son, 1 D., M. & G. 40; see Pears v. Laing, L. R., 12 Eq. 41. This section is in terms limited to the " party" (in the singular) " liable or his agent." It must, however, be read as if it extended also to more than one and their agents. See Roddam v. Morley, sup. As to actions under the 3 & 4 Will. 4, c. 42, not being upon specialties or recognizances, see infra, Chap. VI. CHAPTER VI. ACTION OF ACCOUNT — ON THE CASE — NON-SPECIALTY DEBTS. Six Tears' Non-claim a Bar 544 When Time begins to run . . 545 Mule in Equity . . . . 545 Stale Demands . . . . 545 Acknowledgment .. .. 545 Qualifications of ., . . 546 benial of LiaMlity .. . . 546 Simple — Conditional Ac- Jinowledgiiient .. .. 546 To whom 546 Part Payment . . . . 546 By Agent .. . . .. 547 Trust Money . . . . 547 Actions of account, By the 21 Jac. 1, c. 16, actious of account and upon the case deb^on^sfrnpie (including Ordinary actions on assumpsit (Battley v. Faulk- contract. ner, 3 B. & Al. 294) and merchants' accounts (19 & 20 Vict, c. 97, s. 9)), actions of debt not on specialty and debt for rent (not by indenture (3 & 4 Will. 4, c.42, s.3, ante, p. 542)), are to be commenced within six years next after the cause of such actions (s. 3). Persons under the disability of minority, covertui'e or lunacy have the same period to bring actions after the disability has ceased (s. 7). So they had formerly if imprisoned or beyond seas {ib.), but this was altered by the 19 & 20 Vict. c. 97, s. 10, which section is retrospective. Fardo v. Bingham, L. R., 4 Ch. 735. By the 4 & 5 Anne, c. 16, s. 19, if defendants are absent beyond seas &t the time Action of Account upon the Case, S)C. 545 of the accrual of the cause of action, the period for bringing the action runs from time of their return. The places which are "beyond seas" within the meaning of this act are men- tioned in sec. 12 of the 19 & 20 Vict. c. 19, and are the same as those mentioned in the 3 & 4 Will. 4, c. 27, s. 19, ante, p. 525. By the 3 & 4 Will. 4, c. 42, previously referred to (ante. Chap, v.), actions of debt on awards where the submission is not by specialty ; or for copyhold fines ; or for an escape; or for money levied on a writ oi fi.fa., are to be brought within six years, and actions for penalties given to the party grieved by any statute within two years, after cause of action (s. 3). The provisions as to special statutory limita- tions, lb., but not as to acknowledgments (s. 4), apply to such actions. Ante, p. 543. Time begins to run from the breach of contract ; in the case wiicn time begim of a bill or note from the time of payment ( Wheatley v. Wil- *° ™"' Hams, 1 M. & W. 533) ; if payable at sight, from presentment {Holmes V. Kerrison, 2 Taun. 323); but if on demand, from the date (Norton v. Ellam, 2 M. & W. 461), though if at a certain period after demand, at the expiration of that time after demand. Thorp v. Booth, Ry. & M. 388. On a sale of goods on credit, time begins to run when the time of credit expires. Helps v. Winterbottom, 2 B. & Ad. 43 1 . On a contract, from the time of the breach of it. E. In. Co. v. Paul, 7 Moo. P. C. 85. If time has once begun to run against a debt in the debtor's lifetime, it will not stop on his death until a personal representative is constituted to him (Freake V. Cranefeldt, 3 M. & C. 499; Rhodes v. Smethurst, 6 M. & W. 351 ) ; secus, where an action has been commenced in the debtor's lifetime, but abates by his death. Curlewis v. Mornington, 7 E. & B. 283; aff. 4 Jur., N. S. 1102. Although the 21 Jac. 1, c. 16, does not apply to any inequity, equitable demand, equity adopts the same limitation in cases analogous to those at law. Stackhouse v. Barnston, 10 Ves. 466. Time is a bar in equity to stale demands independently stale demands, of the statute. lb.; Harcourt v. White, 29'&ea,. ZOZ. A right of action barred by the statute of James may be Acisnowieag- taken out of it by an acknowledgment, which must now be °'™'- in writing, signed by the party chargeable (9 Geo. 4, c. 14, s. 1), or by his agent duly authorized. 19 & 20 Vict. c. 27, s. 13. A signature may be by the name being written at the commencement of a statement. Holmes v. Machrell, 3 C. B., N. S. 789. If the acknowledgment is lost or not dated, parol evidence of it, or of the date of it, may be given. Haydon v. Williams, 7 Bing. 163; Edmunds v. Detunes, 2 C. & M. 459. To take a case out of the statute, the acknowledgment must contain an W. N N 546 Limitations to Suits. Qualification. Admission, witli denial of liability. Simple or con- ditional acknow- ledgment. express or implied promise to pay {Linley v. Bonsor, 2 B. N. C. 241); and an absolute admission, not qualified in any way, of the debt being due will be suiBcicnt, as from such an admission the law will imply a promise to jaay. Philips V. Philips, 3 Ha. 299; Smith v. Thome, 18 Q. B. 134; see Hart V. Prendergast, 14 M. & W. 741, 746; Williams v. Griffith, 3 Ex. 335; Godwin v. Culley, 4 H. & N. 373; Cornforth v. Smithard, 5 H. & N. 13; Edmonds v. Goater, 15 Bea. 415; Lee v. Wilmot, L. E., 1 Ex. 364; comp. Moodie v. Bannister, 4 Drew. 433, on the 3 & 4 Will. 4, c. 42, s. 5, ante, p. 543. But there must be no qualification of the promise, and it must not be a mere simple expression of hope to be able to pay at some future time or the like. Smith V. Thome, 18 Q. B. 134; see Cripps v. Davis, 12 M. & W. 159; Francis v. Hawkesley, 1 E. & E. 1052. An admission of the debt, coupled with a denial of the liability to pay it, is insufficient. Brigstocke v. Smith, 1 C. & M. 483; College v. House, 3 Bing. 119; A'Court v. Cross, ib. 329. With regard to conditional promises, it was laid down, in effect, in Philips v. Philips (3 Ha. 281, 299), that an ac- knowledgment operated to revive the old debt, and that it was revived as a consideration for a new promise, which was the measure of the creditor's right ; if it was a simple ac- knowledgment, the law implied a promise to pay, if a con- ditional promise, for instance, to pay out of a particular fund, or when the debtor was able, the creditor could claim no more than what the promise gave him. See Buck- master V. Russell, 10 C. B., N. S. 745. If the promise is to pay when able, the new statutory period begins to run from the time of the ability to pay, though the creditor had no notice of it. Waters v. Thanet, 2 Q. B. 757; Hammond \. Smith, 33 Bea. 452. The 21 Jac. I, c. 16, and 9 Geo. 4, c. 14, contain no pro- visions as to whom the acknowledgment may be made. Prior to these statutes an acknowledgment to a third person was sufficient. MountstephenY. Brooke, 3 B. & Al. 141. And it would seem still that an acknowledgment need not neces- sarily be made to the plaintiff or his agent, but that an acknowledgment to third persons would, or at aU events might, be sufficient. Consider the observations of Parke, B., in Forsyth v. Bristoioe (8 Ex. 716), on the 3 & 4 Will. 4, c. 42 {ante, p. 543), in which, as in the acts now being con- sidered, there is no provision as to the person to whom the acknowledgment is to be made; and see Fuller v. Redman, 26 Bea. 614; Goate v. Goate, 1 H. & N. 29. See, how- ever, the observations of Martin, B., and Bramwell, B., iu Godwin v. Culley, 4 H. & N. 379, 380. As to an Action of Account upon the Case, SfC. 547 acknowledgment by one of two or more joint contractors, see post, tit. " Paktnership." Part payment of principal or interest is, and was before vavt pnymont. the 9 Geo. 4, c. 14, sufficient to talie the case out of the statute of James, though not so expressly provided, and the act of Geo. 4, does not affect this rule (s. 1). Such a payment is in effect an acknowledgment. The payment must be on account of, and as part of, the debt. Tippets v. Heane, 1 C., M. & R. 252. Part payment in goods, if taken as money, is sufficient {Hart v. Nash, 2 0., M. & E. 337) ; so by bill or note (Irving v. Veitch, 3 M. & W. 90), though not paid. Turvey v. Dodwell, 3 E. & B. 136. An actual payment of money is not necessary to constitute a payment within the statute. If the debtor is about to pay, and the creditor stops him and gives a receipt for what is due, that is sufficient. Maber y. Maber, L. R., 2 Ex. 153, Bramwell, B., diss. Part payment after action brought will not take a debt out of the statute. Bateman v. Finder, 3 Q. B. 574. In By agent. general, part payment by an agent is sufficient, though not made so by statute (see Reis v. Pettel, 1 A. & E. 196; TVorthington v. Grimsditch, 7 Q. B. 479; comp. TVhitley v. Lotce, 2 D. & J. 704; Brown v. Gordon, 16 Bea. 302), unless he exceed his authority by paying as part that whicli he was only authorized to pay as the whole. Linsell v. Bonsor, 2 B. N. C. 241. A parol acknowledgment of part payment is not within Acknowledgment the statute of Geo. 4, and is sufficient to take a debt out of »' p"^' p'^J™"'- the statute. Cleave v. Jones, 6 Ex. 573 ; see Edwards v. James, 1 K. & J. 534; Briggs v. Wilson, 5 D., M. & G. 12. Where there are two debts, one barred and the other not, two or more debts and a payment is made, but not specifically appropriated by ~°™ uan-ed. the debtor, it would appear, prima facie, that it is made on pp™p"'"""'- account of the debt not barred {Nash v. Hodgson, 6 D., M. & G. 474), subject to the effect of any evidence leading to a different conclusion. Walker v. Butler, 6 E. & B. 506; see Burn v. Boulton, 2 C. B. 476 ; Wycombe Union v. Eton Unio7i, 1 H. & N. 687. As to the right of a creditor to appropriate a payment generally to a particular del)t, see Mills Y. Fowhes, 5 B. N. C. 455 ; Clayton's Case, 1 Mer. 605 ; Thompson v. Hudson, L. R., 6 Ch. 320. Where the relation of trustee and cestui que trust is con- Trust money, stituted with reference to the due payment of or accounting for a sum of money, the statute has no application. Bur- dick V. Garrich, L. R., 5 Ch. 233. And a person who bor- rows trust money, knowing it to be such, cannot set np the statute against the cestui que trust. Spickernell v. Hotham, Kay, 669 ; Bridgman v. Gill, 24 Bea. 302 ; Ernest v. Croysdill, 2 D., F. & J. 175. N N 2 ( 548 ) MAEEIAGE SETTLEMENTS. Part I.- OF EXECUTORY SETTLEMENTS. Ch. 1.— In pursuance op Marriage Articles and Agreements, p. 549. ,Sec. ].— Statute of Frauds, p. 549. Sec. 2. — Of the Construction of Articles and Agreements, p. 554. Sec. 3. — Specific Performance of Articles and Agreements, p. 560. Ch. 2. — In pursuance of Wills, p. 563. Part II.— OF lEXECUTED SETTJiEMENTS. Ch. 1. — General Operation of a Marriage Settle- ment, p. 567. Ch. 2.— Op the Marriage Consideration, p. 570. Ch. 3. — Agreements in Fraud op Articles or Settle- ments, p. 571. Ch. 4. — Who mat make Settlements, p. 572. Ch. 5. — Of the Husband's Interest, p. 577. Ch. 6. — Op the Wife's Interest, p. 579. Sec. 1. — Jointure, p. 579. Sec. 2.— Pin Monet, p. 582. Ch. 7. — Of the Interests of the Children under Settlements op Personal Estate, p. 582. Ch. 8. — Of the Interests op Children under Settle- ments of Eeal Estate, p. 585. Sec. 1.— Of the Eldest Son, p. 585. Sec. 2. — Of the Younger Children's Portions, p. 586. § 1.— Time of Payment of Portions, p. 586. S 2.— Mode of raising Portions, p. 588. § 3. — Amount to be raised, p. 590. § 4. — On what Property charged, p. 591. § 5.— Interest, p. 592. § 6. — Maintenance, p. 594. Executory Settlements. 549 Ch. 9, — Voluntary Remainders and Ultimate Limi- tations, p. 598. Ch. 10. — Covenants in Settlement^ p. 602. Sec. 1 . — To settle futdre-acquirbd Property, p. 602. 2. — To settle Lands, p. 607. 3. — To leave Property, p. 609. 4. — As TO Policies of Assurance, p. 612. Ch. 11. — Construction op Settlements, p. 613. Ch. 12. — Reforming and setting aside Settlements, p. 615. Sec. Sec. Sec. PART I. EXECUTOKY SETTLEMENTS. CHAPTER L IN PURSUANCE OP marriage ARTICLES AND AGREEMENTS. Sec. 1. — Of the Statute of Frauds. Definition of Marriage Set- tlement .. .. ,. 649 Mequisites of Marriage Ar- ticles or Agreements . . 550 Statute of Pi'auds, «. 4 . 550 Distinction hetmeen Ex- ecuted and Execntory Settlements .. . . 550 Promise to mjirry . . 550 Consideratio-n need not be expressed .. . . 650 Form of Agreement . . 551 JVbte or Merwrandum .. 551 Bond — Letters.. .. 561 Agreement must ie ab- solute .. .. .. 651 Form of Agreement— caati. Expression of Intention, Wish, S-e 551 KnoKledge of Promise . 552 Unsigned Instructions . 552 Fraud — Part Performance . 552 Marriage is not Part Performance . . 562 Part Performance must be unequivocal . . 552 On part of Promiser or Promisee .. .. 552 Certainty of Agreement 653 Verbal ante-nuptial Agree- ment and post-nuptial Settlement .. .. 663 Not binding .. ., 563 Definition of Marriage Settlement.] It may te premised that Deflnitionof mar- perhaps no definition of a marriage settlement would mate- '^^'^ s<='"8"™'- rially tend to render more clear the ordinary popular con- ception of an instrument of so very common and familiar a nature, and so widely known. It may, liowever, for gene- ral purposes be described as an instrument executed before 550 Marriage Settlements. statute of Frauds, s. 1. Distinction between executed and executory settlements. I'romise to marry. Consideration lieed not tie expressed. marriage, and wholly or partly in consideration of it, by which the enjoyment and devolution of real or personal estate is regulated. A post-nuptial settlement is not a mar- riage settlement in the proper sense of the term, though expressed to be in consideration of the marriage, but is merely voluntary, unless it rests upon some fresh considera- tion. A marriage settlement in the largest sense of the term need not be by deed. As will be seen, whatever the form of the instrument, due effect will be given to it in equity. Requisites of Marriage Articles or Agreements.'] In considering the effect of agreements or articles made on the occasion of marriage, which have not assumed the shape of formal settlements, the first question that arises is this, whether the agreement is such that equity will take cog- nizance of it, and, if necessary, enforce it. This question leads immediately to the consideration of the 4th section of the Statute of Frauds, 29 Car. 2, c. 3, by which it is enacted, that no action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage, un- less the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing and signed by the party to be chai-^ed therewith, or some other person thereunto by him lawfully authorized. This statute has already been (ante, p. 72) and will hereafter be referred to (tit. " Vendor and Purchaser") ; and some cases de- cided upon other parts of this section, and cited elsewhere, will be referred to in this title, but repetition will as much as possible be avoided. Though the statute mentions actions only, suits are within it. Cooth v. Jackson, 6 Ves. 31. Marriage settlements are either executed, that is, instru- ments more or less formal and complete, which are intended to be final, and to represent the contract which the parties to it have entered into ; or executory, that is, not final, but rest- ing on a mere agreement, or on a direction in a will, and as a general rule requiring another instrument, the final settle- ment, to be executed, to give full effect to Such agreement or direction. It will be convenient to consider, first, executory settlejnents, then executed settlements. The statute does not apply to a mere promise to marry, which need not be in writing. Cork v. Baker, 1 Str. 34. The contracts contemplated by the statute are those made in consideration of the marriage itself. See Lassence v. Tierney, 1 Mac. & G. 551 ; JFarden v. Jones, 2 D. & J. 76. The agreement need not show on the face of it that mar- riage is the consideration, if sufficient appears, coupled with the other evidence in the case, that it was the consideration. Form of Agreement. 551 See Hammersley v. De Biel, 12 C. & F. 45 ; Shadwell v. Shadwell, 7 Jur., N. S. 311. Form of Agreement.^ The agreement or note thereof in Note or memn- ■writing need not be of a formal character, but it must be Smt™ " °*"'°' complete in itself {Httddlestone v. Briscoe, 11 Ves. 583; Stratford v. Bosworth, 2 Ves. & B. 341 ; Z.y. Thynne v. E. of Gle7igaU, 2 H. L. C. 131), though one of a more formal and final character may be contemplated {ante, p. 86), as in the ordinary case of marriage articles executed preparatory to a settlement. The promise or contract may be in the form of a bond or Bond, other security given, for instance, by the intended husband to his intended wife, whicli may be enforced after the deter- mination of the marriage, though it may be in some cases suspended at law during its continuance. Cannel v. Buckle, 2 P. W. 243 ; Acton v. Pierce, 2 Ver. 480 ; see Fitzgerald V. Fitzgerald, L. R., 2 P. C. 83. So the contract may be by letters ( TVankford v. Fother- Letters. ley, 2 Ver. 322 ; Luders v. Anstey, 4 Ves. 501 ; 5 Ves. 213; see Caton v. Caton, L. E., 2 H. L. C. 127), though writ- ten to a third person {Moore v. Hart, 1 Ver. 110, 200), and a written promise revolsed by some writing may be revived by a parol promise. Bird v. Blosse, 2 Vent. 361. See the cases on that part of the statute relating to contracts con- cerning \a.nA%,post, tit. "Vendor and Puechasee;" where, also, the cases on the subject of signature are collected. The promise must be absolute, — not that the promiser may Agreement must do something, for instance, pay a portion or leave property, t"^ "'■^oi'^''- or the like. Randal v. Morgan, 12 Ves. 67 ; comp. Satmders v. Cramer, 3 Dr. & War. 87. And a naiere ex- Expression of pression of a desire or intention is not, in general, sufficient &c.™"™' ^'^''' where it is not equivalent in equity to a promise or engage- ment. Maunsell v. White, 4 H. L. C. 1039. Where the suitor wrote to the parent of the lady, " If your daughter has money my wish and intention would be that it should be settled for her separate use ;" this was held binding, as the marriage took place on the faith of it. Alt v. Alt, 4 GifT. 84. So where the solicitor of the father of the intended wife wrote to the solicitor of the intended husband, stating that the father did not intend exercising a particular power, and that the intended wife would in consequence have a particular property. Walfordv. Gray, 11 Jul'., N. S. 106; on appeal, ib. 473. So where the lady's father wrote that he would allow his daughter lOOZ. per annum, and at his decease she should have her share of the property he died possessed of. It was held, however, that she was not entitled to any part 552 Marriage Settlements. Expressed inten- tion not in settlemeQt. Knowledge of promise. Unsigned iostruc- tions for agree- ment. of his freehold property. Laver v. Fielder, 32 Bea. 1. But a letter to the trustee of the lady merely expressing a wish that her property should be settled upon her, the mar- riage taking place the same day, is not binding on either the husband or wife. Beaumont v. Carter, 32 Bea. 586. Although a parent, prior to the marriage of a child, may in writing state his intention of making a division of his property at his death between his children, yet if a settle- ment, to which he is a party, b.e executed, and there is no covenant or agreement by him to that effect, he will not be bound. Loxley v. Heath, 1 D., F. & J. 489. A knowledge of the promise is necessary, otherwise the party seeking to enforce it cannot be supposed to have married on the faith of it. Ayliffe v. Tracy, 2 P. W. 65. Mere instructions for an agreement, or a memorandum of the terms of an agreement incomplete and unsigned, will not be binding within the statute (E. of Glengal v. Thynne, 2 H. L. C. 131 ; Bedding v. fVilkes, 3 B. C. C. 400), though in the handwriting of the party sought to be charged. See Caton V. Caton, L. E., 2 H. L. 127. Marriage is not part performance. Ttie act in part Fraud — Part Performance.] Fraud or part performance will take the case out of the statute. The marriage itself, however, is not a part performance of the agreement. See Montacute v. Maxwell, 1 P. W. 618; Bedding v. Wilkes, 3 B. C. C. 400 ; Lassence v. Tierney, 1 Mac. & G. 551 ; Warden v. Jones, 2 De G. & J. 76. In Jeston v. Key, L. R., 6 Ch. 610, Hellish, L. J., is reported to have said, " But the contract " (ante-nuptial articles, to which the father of the intended wife was a party, and by which he entered into covenants) "was partly performed by the marriage." lb. p. 613. But this would seem contrary to the authorities above cited. With respect to the suflSiciency ie'unTni'Tot^'""' °f ^^^ P^^"* performance the act must be uneq^tivocal {Frame V. Dawson, 14 Ves. 386) ; and if it might be done with other views than in part performance it will be insufficient. See Gunter v. Halsey, Amb. 586 ; Ex parte Hooper, 19 Ves. 479 ; 1 Mer. 7. And the act in part performance may be after as well as before the marriage, and it would seem may miser or promisee, jjg o^ ^jjg pg^j.^ ^f jj^p promisor as well as of the promisee. In Taylor v. Beech (1 Ves. sen. 297), it was agreed between the intended husband and wife that he should pay the interest of 5001. to her separate use during her life, and the principal after her decease to her appointees. The agree- ment could not be reduced into a settlement before the marriage took place, but the husband afterwards made some alterations in the di'aft, and delivered it to his wife, and On part of pro- Fraud — Part Performance. 553 paid her the dividends during her life. It was held that there was such a part performance of the agreement as took it out of the statute. In Surcome v. Pinniger (3 De G., M. & G-. 571), the father of the intended wife, shortly before her marriage, told her intended husband that he meant to give certain property on the marriage. After the marriage he gave up possession of the property to the husband, to whom he delivered the title deeds of the property, and to whom also he directed the tenants to pay the rents. This was held a sufficient part performance to take the case out of the statute. And see Hammersley v. De Biel (3 Bea. 469 ; 12 CI. & F. 64, n.), on the point of part performance. In Surcome v. Pinniger, Turner, L. J., expressly laid it down that the delivering up of possession to the husband (by the party to be charged, the defendant) was part per- formance. 3 D., M. & G-. 575. But in Caton v. Caton (L. R., 1 Ch. 137; S. C, on app., L. R., 2 H. L. C. 127), Lord Cranworth, C, seems to have thought that the acts of part performance could not be by the party sought to be charged. See the judgment (L. R., 1 Ch. 148) and cases there put as illustrations of the doctrine stated by his lordship. In order that the doctrine of part performance may be appli- Certainty. cable, the contract must be certain {Randall v. Morgan, 12 Ves. 67; Hammersley v. De Biel, 12 CI. & F. 45; Lady Thynne v. E. Glengall, 2 H. L. C. 131), and the acts in part performance equally certain. See Gulliver v. Gulliver, 2 Jut., N. S. 700. Verbal ante-nuptial Agreement followed by post-nup- tial Settlement.^ It is now settled that a post-nuptial settlement in pursuance of a mere verbal ante-nuptial agree- ment is not binding. Warden v. Jones, 2 D. & J. 86. Not binding. There was, however, at least one actual decision, viz. Dundas v. Dutens (2 Cox, 235), to the contrary. In Hammersley v. De Biel (12 CI. & F. 61), Lord Cottenham refers to Hodgson \. Hutchinson (5 Vin. Ab. 522, pL 34), Taylor v. Beech (1 Ves. sen. 297), and Montacute v. Max- well, 1 P. W. 618), as being decisions that the post-nuptial settlement would be supported by the ante-nuptial verbal promise. On a close examination, however, of these cases, the decisions would appear to have turned on other points, though the opinions of the judges were to the effect stated by Lord Cottenham. There is also the great weight of Lord Cottenham's own opinion, and that of Turner, L. J., in Surcome v. Pinniger (3 D., M. & G-. 571), to the same 554 Blarriage Settlements. effect. And see Lassence v. Tierney, 1 M. & G. 531, 57o ; Barkworth v. Young, 4 Drew. 1. However, the rule must now be considered as settled by Warden v. Jones, supra ; see Spicer v. Spicer, 24 Bea. 365 ; Goldicutt v. Townsend, 28 Bea. 445 ; Hogarth v. Phillips, 4 Drew. 360 ; Mignan V. Parry, 31 Bea. 211. A parol agreement prior to marriage as to particular property which is actually transferred to trus- tees, and held by them upon the trusts verbally agreed upon, is binding, although the deed declaring the trusts may not be executed until after the marriage. Cooper v. Wormald, 27 Bea. 266, 270. For the cases upon the point of the signature of the party to be charged, see post, tit. "Vendok AND PUKCHASEE." Sec. 2. — Of the Construction of Articles or Agreements. ArUcTcs or ilefcctive scttlc- luuut. Difference betmeen Articles and Settlement .. . . 554 Articles or defective Settlement .. .. 554 Articles followed iy emte-nuptial Settle- ment 555 Settlement contrary to Agreement . . • • 555 Articles followed, iy post-nuptial Settle- ment 555 Articles recited, hut not produced ■■ •• 556 Articles not followed hy Settlement .. ..556 Foi-m of Articles im- material •• •■ 556 Executory and Executed Trusts 556 Former moulded accord- ing to Intention ■ • 556 Not the latter .. . . 556 Application efUule in Shel- ley's Case . • . . • • 5™ In Executory Trusts Estate Tail of Parent cut down .. •• 556 Application of Rule in Shel- ley's Case — continued. Gavelhind and Borough English Lands . . 557 Purchasers with and without Notice . . 557 Covenant to settle . . 557 Parent taking Estate Tail in Part and for Life in Remainder ■ . 557 Daughters take in De- fault of Sons ■ ■ 658 Issue ■ ■ ■ ■ • • 558 Children taking as Te- -. nants in Common . . 558 As Joint Tenants . ■ 658 Cross-o'emainders What are Rule against Perpetuifies Powers to te inserted 568 559 559 Usual Powers .. . . 559 Power of Leasing . . 659 Sale and Exchange . . 559 Not Power to Jointure . 559 To appoint new Trustees 559 Settlement of Personalty iy . Reference to Realty ..669 Difference between Articles and Settlement.^ There is a marked distinction between marriage articles m the proper sense of the term, contemplating some further settlement, and an incomplete or defective settlement. Equity wiU dis-. Difference between Articles and Settlement. ooo regard the strict legal construction of the words in articles, and effectuate what it presumes to be the intention of the parties, particularly in favour of the issue of the marriage. Where, however, the instrument is a final settlement, though defective, 'fequity will not treat it as executory, and will not, in general, unless there are grounds for reforming it, vary or alter the instrument, and it must be construed as at law. See White v. Thornborough, 2 Ver, 702. And it makes no difference in this respect that in order to give full effect to its provisions, some future act may remain to be done. J)e Havilland Y. De Saumarez, 14 W. E,. 118. When an ante-nu'ptial settlement purports to be in ■pur- Articles followed suance of articles, and there is any variance, there no evi- by jinte-nuptiai , ^ . ^ ^ -J ' setUement. dence is necessary m order to have the settlement corrected; for it must be goverued by the articles. And even though the settlement may contain no reference to them, if it can be shown that the settlement was intended to be in conformity with them, and there is clear evidence showing that the dis- crepancy has arisen from a mistake, the court will reform the settlement and make it conformable to the intention of the parties. Bold v. Hutchinson, 5 De G., M. & G-. 558, 568 ; TVest v. Erissei/, 1 B. P. C. 225 ; consider Foxley v. Heath, 1 D., F. & J. 489. So equity will alter a settlement drawn up contrary to the settiemctit con- terms of the agreement for it, and the property will be con- t^iT to agree- sidered as settled according to such terms. Corley v. Ld. Stafford, 1 D. & J. 238. But, of course, a settlement may, and often does, vary from the agreement, both being ante-nuptial ; for between the making of the agreement and the final settle- ment, the parties may desire to vary the former, and to this, of course, there can be no objection. Legg v. Goldwire, Ca. t. Tal. 20; see Loxley v. Heath, 1 D., F. & J. 489. If the ante-nuptial agreement be not followed by an ante- Articles followed nuptial settlement, any post-nuptial settlement must of ne- ty post-nuptial ^. 1 . % ■'^ -.1 ii i' 1 i. J 1. settlement cessity be in accordance with the articles, as unsupported by the latter the settlement would be merely voluntary. Legg V. Goldwire, Ca. t. Tal. 20 ; Streatfield v. Streatfield, ib. 176; see Glanville v. Payne, 2 Atk. 39. As hereafter men- tioned, however, where the articles are executory they may be moulded by the court to effectuate the intention of the parties, post, pp. 556, 557. But variations from the articles are, as a general rule, un- variations from authorized, whether they consist of additions or omissions. t/'J^';'™ '™i'«"'*" Thus where a trust in articles as to the income of property was for the intended wife's own absolute use and benefit, free from marital control and liability, it was held, that a restraint against anticipation ought not to be inserted in the 556 Marriage Settlements Articles recited not produced. Articles not followed by settlement. Form of articles immaterial. Issue of particular marriage. settlement. Symonds v. Wilkes, 11 Jur., N. S. 659. Aud if the articles contain covenants which are omitted in the settlement, they will nevertheless be considered as subsistine Speahe v. Speake, 1 Ver. 218. But if the articles cannot be produced, and there is a post- nuptial settlement in which they are merely recited the settlement will not be governed by the recital, if there is any variance between them. Mignan v. Parry 31 Bea 211; see Cordwell v. Mackrell, 2 Ed. 344, post, p. 557. Articles duly signed, not followed by any settlement, form a bmdmg conti-aot capable of being enforced at the instance of any person who would be entitled to enforce any claim under the settlement, had such a settlement been made in pursuance of the articles. The form of the articles is immaterial. Whether by bond, agreement or otherwise, they will be specifically executed. Ajid the insertion of penalties for non-performance will not exclude the jurisdiction of equity. Howard v. Hopkins, 2 Atk. 371; Chilliner v. Chilliner, 2 Ves. sen. 528; Logan v. Wienholt, 1 CI. & Fin. 611, 630. Articles expressly confined to the issue of one marriage wUl not be construed so as to extend to the issue of another marriage. See Hart v. Middlehurst, 3 Atk. 371 ; D. of Bedford v. M. Abercorn, 1 M. & C. 314. Executory trusts Executory and executed Trusts.l Where the trusts ex- monided according pressed in the articles are executory, they will in some cases Atiter trusts executed. be moulded and carried iuto effect according to what the court 4)resumes to be the intention of the parties. But if the trusts are executed, equity follows the law, and they must receive the same construction in equity as similar legal limi- tations would at law. Wright v. Pearson, 1 Ed. 119; Austen v. Taylor, ib. 361 ; Jervois v. D. of Northumber- land, 1 Jac. & W. 571 ; Boswell v. Dillon, Dru. t. Sug. 291. It is sometimes difficult to determine whether trusts are executory or executed. In general they are of the former kind, when it is clear that something remains to he done, that is, where the trusts are left to be executed in a more careful and more accurate manner. Ld. Glenorehy v. Bos- ville, Ca. t. Tal. 3, 19. In executory trusts estate tail of parents may be cut down. Application of Rule in Shelley's CaseJ\ Where the trusts are executory, and according to their legal construc- tion the parent would, according to the rule in Shelley's case {ante, p. 201), take an estate tail, the limitations will be moulded so as to give the parent an estate for life, with remainder to the children in strict settlement ; and the rule Rule in Shelley's Case. 557 applies whether there are articles only {Jones v. Laughton, 1 Eq. Ca. Ab. 392, pi. 2 ; Nandick v. Wilkes, ib. 393, pi. 5 ; Trevor v. Trevor, 1 P. W. 622 ; 5 B. P. C. 122), or articles and a settlement afterwards in pursuance of the articles. Honor v. Honor, 1 P. AY. 123 ; West v. Errissey, 2 P. W. 349 ; 1 B. P. C. 225 ; Streatfield v. Strealfield, Ca. t. Tal. 176 ; see Rochfort v. Fitzmaurice, 2 Dr. & W. 1 ; Lambert v. Peyton, 8 H. L. C. 1 . But where articles before marriage are followed by a settlement also before mar- riage, but not in pursuance of the articles, the rule does not apply. Legg v. Goldwire, Ca. t. Tal. 20 ; Partyn v. Roberts, Amb. 815. The construction, by which the parent takes an estate for Lands in gavei- life only, applies to lands in gavelkind {Roberts v. Dixwell, ^^^^^^ ''°"""^" 1 Atk. 609), and borough English {Starkey v. Starhey, 8 Bac. Ab. 302) ; and the settlement must be made according to the common law and not according to the custom. The principle of Honor v. Honor and the other cases Purchasers with cited supra will not, however, be applied to defeat the notice. title of a purchaser without notice ( Warwick v. Warwick, 3 Atk. 293) ; secus, where the purchaser has notice. Dacies V. Davies, 4 Bea. 54. In the case of Cordwell v. Maekrell (2 Ed. 344), the post-nuptial settlement recited the ante-nuptial articles, but the recital was the only evidence of them, and the court re- fused to decree a strict settlement against a purchaser with notice of the settlement. See Thompson v. Simpson, 1 Dr. & War. 491; Mignan v. Parry, 31 Bea. 211, ante, p. 556. WTiere by the articles an estate is actually settled in Covenant to tail, and there is a covenant to settle other lands to the same uses, it may be a question whether the latter are to be limited in strict settlement or not. It has been held, indeed, that under a will directing a settlement this may be done. Papillon V. ]''oice, 2 P. W. 471 ; see Fearne, Con. Eem. 145 et seq. But not where the testator declares his own uses and trusts, and is in fact his own conveyancer. Austen V. Taylor, 1 Ed. 361. If in the articles different limitations are used, showing Parent may take an intention to create an estate tail as to part of the property, ana"itote forTiie that intention will not be affected, though as to the re- in remainder, mainder the trusts will be moulded, giving the parent an estate for life only. Anon., 2 Ves. sen. 359 ; see Howel v. Howel, ib. 358. The rules which have been stated are the same if the issue. word " issue" be used instead of the words " heirs of the body" {Dod v. Dod, Amb. 274 ; Villiers v. Villiers, 2 Atk. 73) ; and where the trusts are executory, the limitations 558 Marriage Settlements. Daughters may take In default of sous. Where the children take aa tenants in com- mon. t tenancy. will be moulded so as to give the estate to daughters in default of sons. Hart v. Middlehurst, 3 Atk. 371 ; see Ld. Glenorchy v. Bosville, Ca. t. Tal. 3, on a will ; Black- burn V, Stables, 2 V. & B. 369. In Phillips V. James (3 D., J. & S. 72), the father of the intended husband covenanted, by marriage articles, to con- vey an estate for the benefit of his son during his life, re- mainder for the use and benefit of the issue of the son by his wife, their heirs and assigns for ever. The issue of the marriage consisted oi& son and two daughters. It was held, that by the settlement an estate tail should be given to the son, with remainder to the daughters as tenants in common, with cross-remainders between them. See Marshall v. Baker (9 Jur., N. S. 396), in which it was held that the word " issue" in a covenant to settle after-acquired property meant children. A strict settlement, however, will not be decreed, if the court is satisfied that the children were intended to take in common under the description of issue. Therefore, if articles direct an estate to be settled upon the issue whether sons or daughters, or to the issue share and share alike, the settlement must be carried out for the benefit of all the children ■ equally. Taggart y. Taggart, 1 Sch. & L. 84; Lowther v. Ld. Westmoreland, 1 Cox, 64. A construction creating a joint tenancy is not favoured, and if a trust strictly construed would create such a tenancy among issue or children, it will, if possible, be moulded into a tenancy in common. See Taggart v. Taggart, sup.; cons. Liddard v. Liddard, 28 Bea. 266. Cross-remainders.] A question frequently arises on the construction of marriage articles, whether the issue of the marriage are to take amongst themselves by way of cross- remainder or not. Cross-remainders arise "when lands are given in undivided shares to two or more for particular estates, so as that upon the determination of the particular estates in any of those shares they remain over to the other grantees, and the reversioner or remainderman is not let in till the determination of all the particular estates. The grantees take their original shares as tenants in common, and the re- mainders limited among them on the failure of the particular estates are kn-own by the appellation of cross-remainders. These remainders may be raised both by deed and will : in deeds, when the limitations are legal, they can only be created by express words, but in wills they may be raised by impli- cation." Co. Litt. 195 b, n. (1), by Butler. But although cross-remainders will not be implied in a deed where the Rule against Perpetuities. 551) limitations are legal {Tanner v. Dorvell, 5 T. R. 518 ; Ed- wards V. Alliston, 4 Euss. 78), they will in marriage articles where the trusts are executory. West v. Errissey, 2 P. W. 349 ; see the settlement directed by the House of Lords, ib. 355; 1 B. P. C. 225. Rule against Perpetuities.^ Where the intention would intention con- violate the rule of law against perpetuities (see that tit.), it Swf '" ™'°^ °' will be carried into execution only as far as such rules will cy pr^. allow. As if by the articles an estate is to be settled on children and their children and so on (through successive generations) for life, the settlement must be carried out by giving the settlor an estate for life, with remainder to his first and other sons in tail. See Humberston v. Humber- ston, 1 P. W. 332, on a will. Powers to be inserted in Settlement.'] Where there is a usual powers, proviso in marriage articles or direction in a will that the settlement shall contain all usual powers and provisions, this authorizes the insertion of powers of leasing, sale and ex- Powers of leasing, change and the like, being for the general management and ^<"™* ^='*™s<'- better enjoyment of the estates, by all persons interested. Hill V. Hill, 6 Sim. 136; Z>. of Bedford v. M. of Abercom, 1 M. & Cr. 312. But not, it would seem, of any powers which uot powers ot confer a personal privilege, as of jointuring, raising money, jointuring, &c. portions, or the like. Higginsonw. Barnaby, 2 S. & S. 516; Hill V. Hill, sup. A power to appoint new trustees is a to appoint new proper and reasonable power to be inserted. Leadow v, trustees. Fleetwood, 6 Sim. 152. See now 23 & 24 Vict. c. 145, s. 21, post, tit. "Trusts.'' In a will directing a settlement to be made, but without any reference to powers, the usual powers of leasing, sale and exchange, appointment of new trustees, &c., were di- rected to be inserted in it. Turner v. Sargent, 17 Bea. 515; see Scott v. Steward, 27 Bea. 367. Settlement of Personalty by Reference to Realty.] The subject of limitations, &c. of personal estate, by reference to corresponding limitations of real estate, has already been considered ante, p. 227. 560 Marriage Settlements. Sec. 3. — Specific Performance of Marriage Articles. At Articles must be certain. riHsband, wife and issue. Adultery of wife. Issue of marriage. At whose Instance .. . . 560 Certainty of Articles . . 560 Mushand and Wife . . 560 Wife's Adultery no Bar 660 Issue of Marriage . . 560 Strangers, Purchasers or Volunteers . . 561 Children of former Mar- riage 561 Other Children of Set- tlor 561 Hushand or Wife not Pm-chasers for Rela- tions 561 whose Instance — continued. Articles executed in toto 561 Voluntary Idmitations preceding Limitations for Value .. . . 561 Non-performance by a Third Person .. 561 Condition precedent .. 562 mitom .. ., 562 Parties or Representa- tives 562 Purchasers with and without Notice . . 562 At whose Instance.^ It is scarcely necessary to premise that equity cannot specifically execute articles which are un- certain or unintelligible. For the court must be clearly in- formed what the intention is, before it can decree it to be carried out. Bromley v. Jeffries, 2 Ver. 415 ; Franks v. Martin, 1 Ed. 309; see Woodcock v. Monckton, 1 Coll. 273. Where no objection arises on this ground, equity will specifically execute marriage articles at the instance of all who are within the marriage consideration, namely, the husband and wife and their issue, and purchasers for value under the articles, but not at the suit of mere volun- teers, though where equity executes the articles, it does so in toto, and limitations to volunteers must be inserted {post, p. 561). The husband, wife and issue of the marriage can enforce performance of the marriage articles against all who are bound by them. In equity husband and wife are regarded merely as ordinary contracting parties. Cannel v. Buckle, 2 P. W. 243. Of course no action at law can be brought by the wife against the husband during the cover- ture but after that is determined it may be brought against his representatives. When from the nature of the contract an action is the proper remedy, as where a bond is given to, or covenant entered into with, the wife in consideration ot marriage, the wife surviving may sue on it against the husband's representatives. Fitzgerald v. Fitzgerald, L. K., 2 P. C. 83. , . ^... X. The wife's adultery will be no bar to her right to have the articles enforced. Sidnet/ v. Sidney, 3 P. W. ib9; Seagrave v. Seagrave, 13 Ves. 439, 443. Where the children of the marriage or their issue are claimants, they have an equity to enforce specifio_ perform- anco of articles or an executory settlement against their At whose Instance executed. 561 parents, and all others bound by such articles or settlement. Trevor v. Trevor, 1 P. W. 622 ; IVest v. Erissey, 2 P. W. 349; Parkes v. IFhite, 11 Ves. 228 ; Rothwell v. Rothwell, 2 S. & S. 217 ; Lloyd v. Lloyd, 2 M. & C. 192. A mere stranger, stranger may become a purchaser under the articles, of a pu'c'iase™- benefit or interest, and his equity is as capable of being enforced as if he claimed directly under the marriage con- sideration. Heap V. ToTtge, 9 Ha. 104. But executory strangers agreements in favour of volunteers will not be specifically ^'''""'*'="- executed at their instance, for example, a covenant in mar- riage articles in favour of a stranger. Sutton v. Chetwynd, 3 Mer. 249. Though if the settlor can be considered as purchasing the interest for him, the covenant will be good. S. C, 1 T. & E. 295 ; Heap v. Tonge (sup.) And limitations to, or benefits for, the children of a former Children of former marriage will, in general, be supported. Ithell v. Beane, """''''s^- 1 Ves. sen. 215; Newstead v. Searles, 1 Atli. 265. Even a settlement, on the marriage of a female, in favour of her illegitimate child is good. Clarke v. Wright, 6 H. & N. 849. So, where on the marriage of one child, the parent other children of settles property and inserts limitations in trust for the'^'""^' benefit of his other children. Goring v. Nash, 3 Atk. 186. The husband cannot be considered as purchasing for his Husband or wife own relations, for example, a brother (Johnson v. Legard, "eiltiona'"^"'' '"' T. & R. 281 ; Stackpoole v. Stackpoole, 4 Dr. & W. 320), comp. Pulvertoft v. Pulvertoft, 18 Ves. p. 92, in which the observations had reference to the case of a person speci- fically contracting not on his own marriage, but on that of another, a son, for instance, for benefits to third persons. Consider in such cases the necessity of both contracting parties having some interest in the property agreed to be settled. lb.; Osgood y. Strode, 2 P. W. 256. It is, however, a rule of equity that articles must be speci- Articles executed fically executed in toto or not at all. Where, therefore, the '" '°'°' suit is instituted by a purchaser under the articles, and the court directs that a settlement shall be executed, all limitations contained in the articles must be inserted, although the effect may be to give the estate ultimately to a mere volunteer as against the heir of the settlor. Bot this will not be done where the interests of purchasers for value would be affected. Davenport v. Bishopp, 1 Phil. 698. See further as to vo- luntary remainders, post. Part II. Chap. IX. Limitations to collaterals or strangers will also, in general, voluntary iimita- be valid where such limitations precede others supported by HmitaUons''fOT the marriage consideration, otherwise the latter might be value, defeated. Clayton v. Ld. Wilton, Sug. Ven. & Pur. 716. Non-perfoi-mance of the articles by one party to them is, Non-pertonnance w. 0*^ 562 Marriage Sett ements. Condition pre- cedent. Parties to articles and representa- tives. Purchasers with notice. Without notice. in general, no excuse for non-performance by another. Thus if the husband agree to settle a jointure in considera- tion of the intended wife's father paying a portion, the jointure must be settled though the portion be not paid. Perkins v. Thornton, Amb. 502 : Jeston v. Ken L R 6 Ch. 610. ■^' But performance by one party may be mad^ a condition precedent to performance by another {Popham v. Bamfield, 1 Ver. 83), though in Ld. Faversham v. Watson (Fr. Ch. 35, 36), it was said, that if the interests of the issue were in question the articles would be executed in their favour, though- the consideration had not been performed. See Cheeke v. Ld. Lisle, Fr. Ch. 302; Woodcock v. Monckton, 1 Coll. 278, per Bruce, V. C. In Lloyd v. Lloyd, 2 M. & Cr. 204, Lord Cottenhatn, in adverting to this question, observed, that unquestionably, even in the case of a marriage settlement, the covenants may be so framed as to be mutually dependent ; and that if it be clear, on the face of the settlement, that such was the intention, the intention must prevail. And it seems clear that performance may be made conditional on the happening of a particular event or on the performance of some act by another person. In a post-nuptial settlement, where covenants were entered into by one party in consideration of a settlement by another party, which the latter was not bound to make and did not inake, the former was held not bound in equity by his cove- nants. Woodcock Y. Monckton, 1 Coll. 273; see Jeston v. Key, L. E., 6 Ch. 610. Although in suits between parties to the marriage articles, non-performance of them by some other contracting party may sometimes be a defence, this can rarely be the case, when the suit is instituted by the issue of the marriage. Lloyd V. Lloyd, 2 M. & Cr. 192. Against whom.] Specific performance of the articles will be enforced against those who have contracted by them and against their real or personal representatives and per- sons claiming under them as merfe volunteers ( rrewor y. Trevor, 1 P. W. 622 ; Puhertoftv. Pulvertoft, ISVes. 92) ; and against purchasers (including mortgagees) with notice {Davics V. Davies, 4 Bea. 54), but not against such pur- chasers without notice. Warwick v. Warwick, 3 Atk. 293; see ante, p. 557. Settlements in pursuance of Wills. 563 CHAPTEE II. OF EXECUTORY SETTLEMENTS IN PURSUANCE OF WILLS. Generally constmed like Articles .. .. .. 563 JSxecvtory Trusts in Wills and Articles alike 563 Presumption in favour of Issue in Articles . 563 Itule in Shelley's Case — Eeal Estate .. . . 563 Intention to provide for Issue not presumed . . 5G3 Where collected from Will 564 To convey as Counsel advise . . . . 564 Direction to convey for Life^Ilemalnders over 564 Testator his own Con- veyancer . . . . 664 Eqnitahle and Legal Limitations . . • . 564 Rule in Shelley's Case — contd. Word " Issue" . . . . 564 Comprises Daughters • • 563 May mean Children . . 565 Personalty to be settled as Realty . . . . 565 Estates to go with u. Title . . .. .. 565 Impeachment of Waste 565 Particular Settlements di- rected by the Court Excluding Husband . . Where Power given to Wife To be settled strictly . ■ Money paid mitlwut Settlement . . Discretionary Power in Trustees Whether Trust for Set- tlem,ent imperative . . 565 505 566 566 . 566 .. 566 566 Generally construed like Articles.'] Settlements which a Erecutoiy trusts testator directs to be made are to a great extent subject article frTgenerai to the same rules as settlements agreed to be executed under construed auke. articles. Thus, it has been laid down that executory trusts in marriage articles and in wills are construed in the same way. Ly. Lincoln v. D. of Newcastle, 12 Ves. 230. There is, how- Presumption in ever, this qualification, that in marriage articles the issue to [0™^! lis"^^"' be provided for and the considerations that belong pecu- liarly to them afford prima facie evidence of intent which does not belong to executory trusts under wills : allowing for that, an executory trust in a will is to be executed in the same way as an executory trust in marriage articles. Jervoise v. D. of Northumberland, 1 J. & W. 574; see Blackburn v. Stables, 2 V. & B. 369. Application of Rule in Shelley's Case.] In marriage intention to articles an intention to provide for the issue of the marriage norpr^umjr™ is presumed. Theiefore, as we have seen, if the trusts are under wills, executory, the husband will not in general be allowed to take an estate tail to the exclusion of his children. In wills, however, a gift to a person which, according to the rule oo2 564 Marriage Settlements, "Where collected from will. To convey as coimsel shall advise. Direction to con- vey for life, remainders over. Testator hig own couveyancer. Equitable and legal limitations. m Shelley sCase, would givg the parent an estate tail wiRnot necessarily be cut down to an estate for life with remainder to the children m tail, unless some intention to that eifect can be collected from the will. As where there is a direc- tion to settle property on A. and the heirs of his body taking care that it shall not be in A.'s power to dock the entail. Leonard v. E. Sussex, 2 Ver. 526. So, where there is a direction that a settlement shall be made as counsel shall advise. Bastard v. Froby, 2 Cox 6 • see Read v. Snell, 2 Atk. 642. ' ' So, where there is a direction to convey to A. for life without impeachment of waste, with remainder to trustees to preserve contingent remainders, with remainder to the heirs of the body of A. Ld. Glenorchy v. Bosville, Ca. t. Tal. 3 ; Papillon V. Voice, 2 P. W. 471 (the point as to the money directed to be invested); oomp. Austen v. Taylor, lEd. 361. But in such a case if there had been an immediate devise to A., with the same limitations and remainders, he would have taken an estate tail. Papillon v. Voice, sup. (point as to the land devised). And if it appears that the testator has been, as it is often termed, his own conveyancer, then, although he may direct property to be conveyed or settled, this will not make the trusts executory in the sense that the court has the power of moulding them according to what may be conceived to have been his intention. Austen v. Taylor, 1 Ed. 361, 369, n. (a) ; see East v. Twyford, 9 Ha. 713 ; Egerton v. E. Brownlow, 4 H. L. C, judgment of Lord St. Leonards, p. 210. So, if the testator has made a positive settlement, the court cannot add to it in any way. FuUerton V. Martin, 1 Dr. & S. 31 ; see De Haviland v. De Sau- marez, 14 W. R. 118. And if a settlement be directed which does not comprise the whole interest in the property, for instance, does not exhaust the fee, the court has no power to direct a settlement which does exhaust the fee. Head v. Godlee, Reynolds v. Godlee, Johns. 536. Trusts will not be considered as executory where there is a devise giving an equitable estate of inheritance any more than where there is a devise of the legal estate of inherit- ance ; for limitations of a trust either of realty or personalty are construed like similar limitations of the legal estate, unless there is a plain intent to the contrary. Garth v. Baldwin, 2 Ves. sen. 646, 655 ; Wright v. Pearson, Amb. 358. The doctrine laid down by Lord Hardwicke in Bag- shaw V. Spencer (2 Atk. 577) is contra, but must now be considered as overruled. As the word " issue," though a word of limitation hl^e the words " heirs of the body," is of a more flexible character where it is used in a will, there will be greater scope for the Application of Bute in Shelley's Case. 565 court to mould the limitatious in strict settlement than where words of strict limitation are used, like heirs of the body. See Ld. Glenorchy v. Bosville, Ca. t. Tal. 3 ; Meure v. Meure, 2 Atk. 265 ; and generally as to the word "issue," post, tit. " Wills." The term "issue" comprises daughters, and is in this re- comprises spect like " heirs of the body," and where under these expres- '''>"s'>'™' sions in wills a strict settlement is directed, the limitations will be the usual limitations in strict settlement, and daughters must be included after sons. See Ld. Glenorchy v. Bos- ville, Ca. t. Tal. 3. And if a testator directs a settlement on the issue of A. in tail male in strict settlement, there must, following the limitation to the sons of A. in tail male, be a limitation to the daughters of A. but also in tail male. Trevor tr. Trevor, 1 H. L. C. 239. The word " issue," however, in wills directing a settle- May mean ment, will sometimes, as in other cases in wills, be construed "^'"' '^°°' to mean children. Williams v. Teale, 6 Ha. 239. Where there is a direction to settle in such a way that some of the limitations would be void for remoteness, the court will modify the limitations so as to make them consistent Avith the rules of law and equity. Lyddon v. Ellison, 19 Bea. 565. As to directions to settle personal estate upon trusts cor- Personalty to be responding with the uses of real estate, see ante, p. 227. ^""'"' '^ ^'^"^' As to a settlement of estates which are directed to be Estates to go with settled in strict settlement, so as to go with a title, see =;""°- Banks V. Ly. Despencer, 11 Sim. 508; Vise. Holmesdale V. West, L. E., 4 H. L. 543; S. C, L. R., 12 Eq. 280. Where a will directs a settlement upon successive impeachment tenants for life, the settlement to contain " all usual and °' '"^'^■ proper provisions," the tenant for life will not be made dis- punishable for waste. Davenport v. Davenport, 1 H. & M. 775. Nor will he where the trust is for the settlement of estates in strict settlement. Stanley v. Coulthurst, L. R., 10 Eq. 250. Secus, where words importing a larger estate than an estate for life are cut down to an estate for life, as when the words prima facie give an estate tail, which is cut down to an estate for life with remainder in tail. lb. ; see Leonard v. E. Sussex, 2 Ver. 526, and the cases, ante, p. 564. Particular Settlements directed by the Court.'] Under settlements a direction to settle personal estate on a female for her ^xcuiding hus- separate use for life, and then on her issue, with remainder to the testator's nephew, a settlement was directed giving her a life interest to her separate use, with remainder to her 566 Marriage Settlements. Wliere power given to wife. To be spttled strictly. "WTiere fund al- lowed to be paid without a settle- ment. Discretionary power in trustees. Imperative trust or mere wish. children in default of children to the nephew, thus excluding tim 264"! 7 '°^ ParUcipation. Stonor y. Cur^en'l XT i ' Young V. Macintosh, 13 Sim. 445 Under a direction to settle a fund upon the testator', daughter and her issue, not subject to the' debts &^o?au; husband, the settlement ordered by the court gave the daughter a power of appointment by will in default of issue Stanley ^ Jackman, 23 Bea. 450; see Simons r. Hot- rcood 1 Keen 7. And where the will directed that property should be settled for the benefit of the testator's daughter as his trustees should think fit, the court approved of a power enabling the daughter to appoint a life interest in the pro- perty to her husband. Charlton v. Rendall, II Ha 296 hx Loch V. Baejley (L. E., 4 Eq. 122), the testator di- rected that his daughters' shares under his will should be settled upon themselves strictly: it was held that the income of each daughter's share should, during the joint lives of herself and her husband, be paid to her for life for her sepa- rate use without power of anticipation; and if she died first, then her share should go as she should by will appoint, and] in default of appointment, to her next of kin exclusively of her husband, and if she survived then to her absolutely. Under a bequest to a female at twenty-one, with a direc- tion to settle the fund on her for. life and afterwards on her children, and the bequest took effect when she was fifty- five years of age and had no children, the court allowed the fund to be paid to her. Lyddon v. Ellison, 19 Bea. 565. A discretionary power vested in trustees to regulate the terms of the settlement must be exercised in the lifetime of the person upon whom the settlement is to be made; otherwise the gift on limitations expressed in default of or subject to the exercise of such power will take efiect. Thus under a devise to A. absolutely, subject to a discretionary power in trustees to settle the whole or such part of the property as they should think fit on A. attaining twenty-one or marrying, and A. attained twenty-one and died before any settlement was made, it was held that the heir of A. was entitled, and that the discretionary power had determined. Lancashire v. Lancashire, 2 Ph. 657. There are cases in which a gift or legacy is coupled with an expression of desire or confidence that it may be settled in a particular manner. Cons. Eaton v. Barker, 2 Coll. 124; Knight v. Knight, 3 Bea. 148, 173. In such cases the question would seem to be, whether the fund is im- pressed with a trust to whicli effect must be given in equity, or whether the testator or donor has merely indicated his wishes, which the donee or legatee is at liberty to disregard. ( 367 ) PART II. OF EXECUTED SETTLEMENTS. CHAPTER I. GENEEAL OPERATION OF A MAERIAGE SETTLEMENT. Settlements generally . . 567 Property must be bound by Settlement .. .. 567 Wife's future Property . . 668 Settlements made Abroad. . 568 Scotch Deed ,• • • 568 Property of every land may be settled .. . . .. 569 Revocation before Marriage 569 After Marriage are abso- lutely binding . . . . 569 Settlements lost or destroyed 5C9 Marriage settlements may be as varied, and the provi- settlements gene- sions in them as nnmerous, as the different kinds of property "^'y- which are capable of being settled. Almost universally, how- ever, there are provisions for the husband, for the ■wife, and for the issue of the marriage. Whea property, whether real or personal, is settled, there are usually many trusts and powers by which the management, enjoyment and devo- lution of the settled property are regulated. These subjects are considered partly under the following sections of this title in due course, and partly under other titles, particularly " Powers" and " Trusts." As to powers and trusts which affect property they are to a great extent the same, whether contained in wills or settlements, and by being considered under distinct titles unnecessary repetition is to a great extent avoided. As a marriage settlement will only affect the property property must be comprised in it or made subject to its provisions, for instance, ''°'"'* '■y settle- future-acquired property agreed to be settled in a particular manner, all other property, whether of the husband or wife, on which the settlement does not operate and cannot operate at any future time, will be subject to the same rules as ordi- nary unsettled property. See tit. " Husband and Wife," ante, p. 306. And as it is necessary that a valid marriage should be contracted in order that the rights affecting pro- perty by reason of marriage may arise, where there is no settlement, ante, p. 307, so such a marriage is equally neces- sary where it is the consideration for the settlement ; for if 568 Marriage Settlements. Settlement gives husband no right to wife's future property. Settlements made Scotcli deeJ. the marriage be invalid, the trusts until the marriaee alone operate. Chapman v. Bradley, 33 Bea. 61 ; 33 L. J., Ch. 139 It was at one time considered that a settlement by the husband on the wife gave him an absolute right to her por- tion or future property, though there was no agreement to that eftect. Blois v. Hereford, 2 Ver. 501; see n. (D) to Carteret v. Paschal, 3 P. W. 199, ed. Cox; and n. 4, 2 Ver. 503, ed. Raithby, and cases there cited. But this is not now the doctrine of the court. In Garforth v. Bradley (2 Ves. sen. 677), Lord Hardwicke observed, that if the settlement on the wife was in consideration of her present portion or fortune, without reference to what came after- wards, and the husband did not reduce it into possession, it would survive to the wife in equity as well as bj the rule of law. But the husband may be a purchaser of the whole fortune of his wife, present and future; aud in such a case she is not entitled to any provision out of property accruing in her right after the marriage. Ih. This of course de- pends upon the terms of the settlement, which must clearly express or import that the husband is to take absolutely. Druce v. Denison, 6 Ves. 385 ; Salwey v. Salwey, Amb. 692; MitfordY. Mitford, 9 Ves. 87; Carr v. Taylor, 10 Ves. 574. Where a contract is made between persons domiciled in a foreign country, and in a form known to the law of that country, the court in administering the rights of parties under it, will in general give it the same construction and effect, as the foreign law would have given to it. Ans- truther v. Adair, 2 M. & K. 513 ; see the cases ante, p. 70. A marriage contract respecting personal estate made abroad between foreigners will be specifically enforced here, though the terms of it refer to foreign customs. Fouhert V. Turst, Pr. Ch. 207. But although parties are domiciled abroad, and one of them is a foreigner, a deed by them set- tling the wife's property in England, though executed abroad, is construed according to the English law. Van Grutten v. Digby, 31 Bea. 561. A deed in the Scotch form made between parties, some of whom are domiciled in Scotland, others in Eiagland, will be construed, so far as it concerns the former, according to the Scotch law, and so far as it concerns the latter, accord- ing to the English law. Duncan v. Campbell, 12 Sim. 616. In Lang v. Lang (8 Sim. 451), a settlement was made at the Mauritius between British subjects, reciting that they intended to mai-ry according to English law ; and reciting further, but contraiy to the fact, that the intended husband had received 4,000/. from the intended wife to be invested General Operation of a Marriage Settlement 5G9 for her benefit ; and that if he did not invest this sum she should be entitled to take it out of his assets at his death. He died intestate. The wife was held entitled to the 4,000/., and also to a distributive share of the residue. See tit. " Contracts," ante, p. 64. It may be laid down as a general rule that property of wimt property every description, and interests in such property of every ""^ e settle . kind, may be settled, and agreements may be made extend- ing to future-acquired property. A settlement, though exe- Revocation prior cuted, may, as a general rule, be revoked by the parties at '° ""^ mamage. any time before the marriage, and a fresh settlement exe- cuted. In Robinson v. Dickenson (3 Russ. 399), a settle- ment in contemplation of marriage was executed, and the marriage ceremony was performed. It was afterwards discovered that the marriage was void. The parties then revoked the settlement, executed another containing different trusts, and were legally married ; and it was held that the second settlement was valid. But, in Page v. Home (11 Bea. 227), where, under very special circumstances, a settlement made with the consent of the intended wife's guardians was revoked without their consent, and the marriage took place without any fresh settlement being executed, the Master of the Rolls, though with considerable doubt, decided that the settlement was nevertheless valid and subsisting. After the marriage, the settlement (unless where there is a Alter marriase mistake which may be rectified) is absolutely binding, and a absolutely bind- divorce, though upon the ground of the wife's adultery, does not give the Court of Chancery jurisdiction to set it aside. Evans 'v. Carrington, 2D., F. & J. 4Sl. See, as to the statutory jurisdiction of the Divorce Court in such cases, post, Chap. XII. Equity exercises the same jurisdiction with respect to Lost or destroyed lost or destroyed settlements as it does in the case of lost settlements. deeds. Upon sufficient evidence the same relief will be, and equally, administered, as if the settlements were pro- duced. Bates V. Heard, Dick. 4. 570 Marriage Settlements, A''aluable. Not -within 27 Eliz. c. 4, or 13 Eliz. c. 5. Where the settle- ment is not fol- lowed by mar- riage. Second marriage. CHAPTEE II. OP THE MARRIAGE CONSIDERATION. VahmHe 57Q Settlements not within 27 Eliz. c. i, nor 13 Miz. v. 5 570 Settlement not followed ly Marriage 570 Second Marriage ,. . . 570 Protects Property of Per- sons taking as Volunteers 571 Where Marriage will not support' 571 Pa/rt of Scheme to defraud. 57] False Recitals .. ..571 Insolvency of Bttsiand ,. 571 Marriage is a valuable consideration, — indeed the highest known to the law. Per Sir J. Eomilly, M. E., Ford v. Stuart, 15 Bea. 499; and see Frazer v. Thompson, 4 B. & J. 661. A settlement founded upon it will not, in general, be voluntary or fraudulent either within the 27 Eliz. c. 4 (perp. 39 Eliz. c. 78, s. 3), or the 13 Eliz. c. 5. The possession by the husband of settled personal estate conveyed to the trustees of the settlement will not be fraudiilent within the latter act, where such possession is in accordance with the terms of the settlement. But if the settlement contains a power of revocation, a conveyance to a subsequent purchaser for value will defeat the settlement, although it restg upon a valuable consideration. This is by the express language of the statute. 27 Eliz. c. 4. See ante, p. 277. Usually the possibility of the marriage not taking place is provided for by directing the trustees to hold the settled property in trust for" those to whom it belongs until ihe marriage, and thenceforth upon the trusts to arise on that event. But apart from this it seems clear that a settlement in contemplation of marriage will have no operation in equity unless the marriage takes place. Hamond v. Hicks, 1 Ver. 432. See Milford v. Reynolds, 16 Sim. 131; Chapman v. Bradley, 33 Bea. 61; 33 L. J., Ch. 139. On the marriage of a widow or widower whose property is to be settled, it is important to ascertain whether there has been a settlement of it made on the previous marriage, especially if there has been any issue of such marriage. In Edwards v. Freeman (2 P. W. 435, 439), and Hart v. Middlehurst (3 Atk. 371), the articles made on the first marriage were suppressed; iu the former case, to the pre- judice of the child of the first marriage, in the latter to the prejudice of the children of the second marriage. As to settlements made by an intended wife in fraud of the Marriage Consideration. 571 marriage treaty, see infra, Chap. III.; and as to settlementt; by a lady not in contemplation of marriage, and which the court will set aside by reason of their being voluntary and improvident, see ante, pp. 290, 292. As to the operation of a settlement in protecting devised or descended property against the creditors of the devisor or ancestor, see ante, p. 247. A voluntary bond or obligation, if settled in con- sideration of marriage, ceases to be voluntary. Payne v. Mortimer, 1 GifF. 118. Although marriage is a valuable consideration, it will not where marriago support every settlement on the intended wife and issue of J]',e"setoe»intf the marriage. Thus, if the marriage be merely part of a part of scheme scheme, and the settlement a mere fraudulent device to t» aefrana. withdraw property from the husband's creditors, it will be void against creditors. Columbine v. Penhall, 1 Sm. & G. 228 ; Buhner v. Hunter, L. E., 8 Eq. 46. In Frazer v. Thompson (4 D. & J. 659), the engagement between the parties had been of some standing, and the wife would not marry without a settlement (to her separate use for life), which comprised great part of the husband's property. She had full knowledge that he was greatly embarrassed at the time of the marriage, and he was even indebted to herself. He afterwards became bankrupt. It was held that the set- tlement was invalid against the assignees. But in Campion False recital. V. Cotton (17 Ves. 264), it was held that the mere fact that the settlement contained a false recital that the property was the wife's would not render the settlement void as against creditors, though the settlor was indebted at the time of the marriage, and his wife was aware of it. And where the insolvency of intended husband covenanted to settle all his own and his *""'""*• intended wife's future propertj--, and was insolvent at the time, but his wife was not aware of it, and shortly after the marriage he became insolvent under the act then in force, the settlement was supported. Hardy v. Green, 12 Bea. 182. CHAPTER III. AGREEMENTS IN FEAUD OF MARKIAGE ARTICLES OR SETTLEMENTS. Fraudulent Bonds, S^'c. . . 572 I Marriage Brocage Bonds . . 572 Party to, relieved from . . 572 | Bonds to ma/rry . . . . 572 Agreements in fraud of marriage articles or settlements are void, and conveyances and assurances in pursuance of them will in general be set aside. Peyton v. Blodwell, 1 Ver. 572 Marriage Settlements. Party to, relieved from. F^uduient bonds, 240 Upon this principle a bond by tlie husband to return part ot his wife s portion was ordered to be delivered up where a third person had made a settlement in consideration ot the portion. Turton v. Benson, 1 P. W. 496 So an agreement by the husband to indemnify his father against a jointure or provision made by him upon the son's wife or children will be void. Palmer v. Neave, 11 Ves. 165. kSo a secret agreement to give an equivalent for the release of a jointure or the like. Lamlee y.Hanman, 2 Ver. 466 499- comp. Roberts v. Roberts, 3 P. W. 66. The rule is the same where the agreement is made by the wife (Gale v. Lindo, 1 Ver. 475), or by the husband and wife {Redman J. Redman, ib. 348); and in some cases- the party bound by it, though privy to the fraud, may be relieved against it {ib.); particularly when other persons are living who are interested in its being set aside, for instance, the wife or children. Thompson v. Harrison, 1 Cox, 344. Upon this principle, also, no binding private arrangement can be entered into between the trustee of the settlement and the husband to make the trust fund liable for the en- gagements of the latter, when the property moves from the wife, and is settled to her separate use. Morris v. Clark- son, 1 Jac. & W. 107. Where a parent or guardian, or other person, bargains for any benefit to himself as the price of consenting to or bringing about a marriage, such agreement and all securities for effectuating it will be void. Keat v. Allen, 2 Ver. 588 ; D. of Hamilton v. Mohun, ib. 652 ; Smith v. Aykwell, 3 Atk. 566. And all payments made under them will be ordered to be refunded. Smith v. Bruning, 2 Ver. 392. Such agreements and securities are contrary to public policy, and cannot be rendered valid by subsequent confirmation. Shirley v. Martin, cited 1 Ba. & B. 358. As to bonds or other securities to marry or pay a sum of money in default, see Key v. Bradshaw, 2 Ver. 102; Cock v. Richards, 10 Ves. 429. Marriage brocage bouda. Bonds to marry. CHAPTEK IV. WHO MAY MAKE SETTLEMENTS. In general . . . . • • 673 All Persons in general Settlements of Real Estate of Female Infants competent .. . ■ 573 Effect of .. lAmatics .. •• S73 Conjirmation . . Contracts of Infants Bind Husband voidable . . • ■ 573 Effect of Settlement not Bar of Dower .. . . 573 confirmed Share wider Statute of Misrepresentation by Distributions .. 573 Wife 573 573 bli 574 574 674 TFho may make Settlements. 573 Settlements of Personal Estate try Female Infants 574 Personalty in Possession 574 Personalty in Pever- sioUy Sj'c. . . . . 575 As to Confirmation . . 675 Dissolution of Marriage 575 Consent of Parents or Guardians .. . . 575 Court cannot hind In- fant except under Statute .. . . 575 Settlements by Afale Infants 576 Voluntary, though con- firmed .. . . 576 Settlements iy Male Infants — contd. Represerttation hy In- fant that he mas of 'Age 676 IS <5- 19 Vict. c. 43 . . . . 576 Infants may make Set- tlements . . . . 576 Sanction of Court . . 676 Infant dying nndcr Age 576 Does not apply to Males under Twenty or Fe- males under Seven- teen 577 Propriety of Marriage . 577 In general.^ As a rule no question arises as to the com- au parties in petency of the intended husband or wife to make a settle- peS'"""" ment, for in general all persons are competent except lunatics and infants. With respect to lunatics there would seem to Lunatics, be no case in which ;t marriage settlement has been sought to be set aside on the ground of the lunacy of one of the con- tracting parties. But, if established, the incapacity to con- tract would probably avoid the settlement. See ante, p. 66. In the case of infants, as will be seen, they were never wholly incompetent, and their powers have, subject to the sanction of the Court of Chancery, been much increased by a recent act of parliament, the 18 & 19 Vict. c. 43 (Malins' Act). The contracts of infants are, in general, voidable at their contracts ot option (Chitty on Contracts, 15), but are capable of being infants voidable. confirmed on their attaining majority. With respect to female infants, prior to the 18 & 19 Vict. c. 43, settlements were only binding upon them in certain respects, and as to certain kinds of property. Thus the right of dower of a female Bar of dower, infant might, and still may be, barred by a proper provision or jointure made for her before marriage, in like manner as if she were adult. This, however, is by force of the statute 27 Hen. 8, c. 10, not by reason of her being able to contract to deprive herself of dower. E. of Bucks v. Drury, 2 Ed. 39, 60 ; Glover v. Bates, 1 Atk. 439 ; see post, " Jointure." A female infant may also by settlement be ban-ed of her Distributive share of her husband's personal estate under the Statute of ^'""''^ »f ''"sband's Distributions, where a provision is made for her by the ^ settlement. 2 Ed. 70. Settlements of Real Estate of Female Infants.] A Effector. settlement or agreement by a female infant with reference to her real estate is not binding on her unless duly confirmed 574 Marriage Settlements, Confirmation. Bind husband. Kffect of settle- ment not con- firmed. Misrepresentation by "Wife. Personal estate in possession. on her attaining her majority. Milner v. Ld. Harewood, 1« Ves. 259. The confirmation must be by a proper deed duly acknowledged, for the mere execution by her after her majority of a deed confirming the settlement without an ac- knowledgment, as required by tlie Fines and Recoveries Abolition Act, is insufficient. Field v. Moore, 7 D., M. & G. 691 ; Campbell v. Ingilby, 21 Bea. 567. As to a settle- ment, though confirmed, being voluntary, see Honywood v. Honywood, 20 Bea. 451. Until confirmation by the wife the settlement has a qualified effect only. Thus it precludes the husband during the coverture from doing anything himself or concurring in any act of his wife inconsistent with the settlement {Durnford v. Lane, 1 B. C. C. 106 ; Milner v. Ld. Harewood, 18 Ves. 275 ; Pimm v. Insall, ■ 7 Ha. 193), and the wife may compel him to give effect to it, if she adopts it. Field v. Moore, 7 Be G., M. & G. 691, 716; Hobson v. Ferraby, 2 Coll. 412; D' Arcy y . Maddock, 4 Ir. Ch. Eep. 40 ; Barrow v. Barrow, 4 K. & J. 409. In Savill V. Savill (2 Coll. 721), the husband covenanted that on his wife attaining her majority her real estate should be settled with an ultimate limitation in default of issue on her heirs, and her personalty with an ultimate limitation to her next of kin. The settlement was not confirmed, and the wife died without issue. Her heir-at-law was held en- titled to her realty, and her husband to her personalty, the next of kin being mere volunteers. See Campbell v. Ingilby, 21 Bea. 567. In Thorpe v. Foy (L. R., 4 Ch. 35), a settlement was made on the marriage of a female infant, in which the hus- band covenanted that he and his wife, if she consented, would settle her real estate on her attaining her majority. No settlement was made after she attained her majority, but she and her husband subsequently mortgaged the property, representing to the mortgagee that there was no settlement. The deed was duly acknowledged, but the mortgagee pre- vious to the acknowledgment, but after the advance of the money and execution of the deed, had notice of the settle- ment. It was held that the wife's misrepresentations con- stituted a fraud which bound her estate, and that the mortgagee had priority over those interested under the settlement. Settlements of Personal Estate by Female Infants.] Even before the 18 & 19 Vict. c. 43, presently noticed, a settlement might have been made on the marriage ot a female infant of such personalty belonging to her as, by rea- son of the marriage, would if there were no settlement vest Settlement of Personal Estate by Female Infants. 575 in her husband on the marriage. This, however, was in point of fact the settlement of the husband, as without it such property would, as the law then stood, have come to him absolutely _/Mre mariti. See Simson v. Jones, 2 R. & My. 365, 374 ; see now the act of 1870, ante, tit. "Husband AND Wife." Where the settlement is of such personal estate as will Personalty iu not vest absolutely in the husband _;'«?•« mariti, as where it ''™''*"'"' • is separate or reversionary estate, the wife will not be bound by the settlement, unless after attaining her majority she ConflrmaOon. confirms it (see Milner v. Ld. Harewood), or by her acts after attaining her majority, is to be considered as having acquiesced in or adopted the settlement. Ashton v. M'Dou- gal, 5 Bea. 56 ; Davies v. Davies, L. R., 9 Eq. 468. An appointment of new trustees operates as a confirmation. Merryweather v. Jones, 4 Gifl^. 449. Where the property is personalty and in court, the wife on attaining her majority must consent to a transfer of the fund. Day v. Day, 11 Bea. 35. In Swift V. Wenman (L. R., 10 Eq. 15), on the marriage Dissolution of of a female under age, there was an agreement to settle per- ""^^^e. sonal property to which she would become entitled on attain- ing twenty-one on herself for life, with remainder to her husband for life, and if he should die in her lifetime and in default of children for her absolutely ; there were no children, and nothing was done to confirm the agreement on the wife attaining twenty-one. It was held that, on the marrifjge being dissolved at the wife's instance, she was absolutely entitled to the property. It was formerly considered that the consent of parents or Consent of parents guardians would be binding on an infant in respect of mar- ""' s""^'"'"'*- riage contracts made by them on behalf of the infant. Harvey v. Ashley, 3 Atk. 607. It is now settled, however, that such consent will not have this effect. Fields. Moore, 7 De G-., M. & G. 691, 707. But though parents or guardians cannot bind an infant who would not otherwise be bound, their assent to the settle- ment would seem in many cases useful, in some necessary, if it be not made under the provisions of the 17 & 18 Vict. c. 83. Thus in those cases in which the wife was barred of her dower by an equitable jointure, the assent of parents or guardians was relied upon, and seems even to have been considered necessary. E. of Bucks v. Drury, 2 Ed. 60, 65 ; Corbet v. Corbet, 5 Russ. 254 ; Simson v. Jones, 2 R. & My. 365, 377. So where she was barred of her thirds. /6. The court eannot The Court oi Chancery has no power, except under the bind infant 18 & 19 Vict. c. 43Q90rf), to bind the real property of an sSe.™""' 576 Marriage Settlements. infant, though a ward of the court. Savill v. Savill 2 Coll. 721 ; Field v. Moore, 7 De G., M. & G. 691, 709 But the court has this power in respect of the personal estate of a female infant ward. Simson v. Jones, 2 Russ. & M. 365. Voluntary, though confirmed. Representation hy infant that he was of age. Infants may, with the approba- tion of the Court oE Chancery, make valid settle- ments, or con- tracts for settle- ments, of their real and personal estate upon marriage. In case Infant die under age ap- pointment, &c. to be void. Settlements hy Male Infants.'] Settlements by male infants were in general as inoperative as those by female infants. See Caruthers v. Caruthers, 4 B. C. C. 500, 510. But if a male under age married an adult female who covenanted that her own estate should be settled, this cove- nant was binding upon him. Slocomhe v. Glubb, 2 B. C. C. 545 ; Strathmore v. Bowes, 1 Ves. jun. 28. And a settlement by an infant, though confirmed on his attaining his majority, would, unless under the act presently noticed, be voluntary. HonywoodY. Honywood, 20 Bea. 451. But though the infant will not (unless in the excepted case before mentioned) be bound by his contract unless he confirms it when of age, yet if at the time of the marriage he represented that he was of age, he cannot afterwards set up the falsehood of this representation in order to avoid the contract {Nelson v. Stacker, 5 Jur., N. S. 262 ; S. C. 751, 753), unless the party to whom the representation was made knew it to be false. lb., see Cory v. Gertcken, 2 Madd. 40. 18 ^ 19 Vict. c. 43.] Now by the 18 & 19 Vict. c. 43 (Ire- land, 23 & 24 Vict. c. 83),'" it shall be lawful for every infant upon or in contemplation of his or her marriage, with the sanction of the Court of Chancery, to make a valid and bind- ing settlement, or contract for a settlement, of all or any part of his or her property, or property over which he or she has any power of appointment, whether real or personal, and whether in possession, reversion, remainder, or expectancy ; and every conveyance, appointment and assignment of such real or personal estate, or contract to make a conveyance, appointment or assignment thereof, executed by such infant with the approbation of the said court for the purpose of giving effect to such settlement, shall be as valid and effectual as if the person executing the same were of the full age of twenty-one years. Provided always, that this enactment shall not extend to powers of which it is expressly declared that they shall not be exercised by an infant (s. 1). " Provided alway.s, that in case any appointment under a power of appointment, or any disentailing assurance, shall have been executed by any infant tenant in tail under the provisions of this act, and such infant shall afterwards die under age, such appointment or disentailing assurance shall thereupon become absolutely void (s. 2). Settlements by Male Infants. 577 " The sanction of the Court of Chanceiy to any such settle- The sanction oj ment or contract for a settlement may be given upon petition elmnc "ry to be presented by the infant or liis or her guardian in a summary given upon way, without the institution of a suit, and if there be no ''°""''°- guardian the court may require a guardian to be appointed or not as it shall think fit ; and the court also may, if it shall think fit, require that any person interested or appearing to be interested iu the property should be served with notice of such petition (s. 3). " Provided that nothing in this act contained shall apply to Not to apply to any male infant under the age of twenty years, or to any "weifty orYemaiea female under the age of seventeen years (s. 4)." ""der seventeen. Under this act, the court will not inquire into the pro- Propriety oi priety of a marriage sanctioned by the father of the infant. ™'"™e«- Re Dalton, 6 D., M. & G. 201 ; cons. Re Strong, 2 Jur., N. S. 1241. The court has power under the act to order a post-nuptial settlement where the infant is a ward of court. Poioell V. Oakley, 34 Bea. 575. But otherwise where the infant is not a ward of court. Re Potter, L. R., 7 Eq. 484. CHAPTER V. HUSBAND S INTEREST UNDER THE SETTLEMENT. In Meal Estate . . . . 577 In Personal Estate . . 577 Limitation for Husband until Banltrnptcy . . 577 Of Wife's Frojperty good 578 Limitation, ^c. — continued. Aliter his own .. . . 578 Ewcept to extent of Pro- perty received from Wife 578 Effect where Provision for Children ,. 578 When real estate of the husband is settled, he almost, as Real estate. a matter of course, takes a life interest in it, without im- peachment of waste; and usually also after intermediate limi- tations, sometimes to the wife for life, then to the issue of the marriage ; sometimes to the issue only; he takes the ulti- mate remainder in default of issue. Frequently, also, he takes a life interest in his wife's real estate, subject to her prior life interest. With reference to personal property, or real estate directed Personal estate. to be converted and the proceeds invested, he usually takes the first life interest in his own property, and a life interest subject to her prior life interest in her property. Not un- Clause divesting frequently there is a clause of forfeiture in the event of his on bankruptcy?^' becoming bankrupt or assigning, charging or incumbering W. P P 578 Marriage Settlements. his life interest. Without such a clause, the hushand's life interest, or any other interest which he may talie under the settlement, will vest in his trustee (formerly assignees) on his bankruptcy. Stratton v. Hale, 2 B. 0. C. 490 ; see Bank- ruptcy Act, 1869, 32 & 33 Vict. c. 71, s. 15. i^T["<='^i'"'P«''ty Even where there is such a clause, its validity depends ^° ■ upon circumstances. Thus a limitation of the wife's property to the husband until his bankruptcy, then over, is good {Ex parte Cooke, 8 Ves. 353 ; Ex parte Hinton, 14 Ves. 598 ; to dV eiS^'t f •^^*^^'' ^- Garland, 1 Sw. 481, n.); but not of the husband's extent ot property own property, except to the extent of the wife's property re- received with ceived by him or agreed to be settled. To this extent limi- tations by him of his property and bonds given by him, to take effect on his bankruptcy, will be good. Higinbotham V. Holme, 19 Ves. 87; Holmes v. Penney, 3 K. & J. 90, 102 ; Montefiore v. Behrens, 35 Bea. 95. In Brooke V. Pearson (27 Bea. 181), an estate of the hus- band was settled, in consideration of property of the wife, • upon trust for the' husband until he should sell, mortgage or incumber the same, or should become bankrupt or insolvent; in any of which events the wife was to receive an annuity of 300/. to her separate use. The husband mortgaged the es- tate and afterwards became bankrupt ; the wife was held en- titled to her annuity from the date of the mortgage. Effect of, where A trust for the benefit of a person until his bankruptcy or provision tor insolvency, then in the discretion of the trustees, for the sub- "'" ™' sistence of himself and family, was held, in Rippon v. Nor- ton (2 Bea. 63), on the insolvency taking place, to entitle his three children to three-fourths of the fund, and the as- signees to the remaining fourth. In Page v. Way (3 Bea. 20), where the trusts were similar, the assignees were held to be entitled to everything, subject to what was proper to be allowed for the maintenance of the wife and children, which the master was to settle. See Kearsley v. Woodcock, 3 Ha. 185; Wallace v. Anderson, 16 Bea. 533. A limitation to the husband for life, or until bankruptcy, then to the wife for hfe, with remainder if she should pre- decease her husband, after his death or sooner if he should become bankrupt, to the children then living means children living at the wife's death, not at the time of the bankruptcy. In rfEdgington's Trust, 3 Drew. 202. See as to limiMions until banki-uptcy under y^iW^, post, tit. "Vesting and De- testing OF Estates." - , • +„ ti,„ As to the various powers which may be given to tiie husband, see post, tit. "Powers." Provision for Wife — Jointure. 579 CHAPTER VI. PROVISION FOR WIFE. Sec. 1. — Jointure. Provisions for Wife in general .. .. .. 679 Real and Personal Estate .. ..579 Jointiire in Bar of Dower. . 579 27 Hen. 8, u. 10 . . 580 Mequisites of Legal Jointure .. . . 580 Jointiire iy Agreement. 580 Jiy Tenant in Tail- Deed not enrolled . . 580 Elopement or Adultery no Bar .. . . 580 Value, ^c. of Jointure . . 580 At what Time .. . , 580 Deficiency .. ..581 Covenant as to Right to distrain .. ,, 581 Satisfaction of. . ,. 581 JVo Interest on Arrears 581 Release— Confirmation .. 581 Wife's equities after . . 581 Of Part not Release of the Wliole .. ..581 Jointress having Title Deeds .. ..581 Provisions for Wife in general.'] The interest which Eeai and peisonui the wife takes in the settled property depends of course '^*'*''=- upon the settlement. When the property belongs to the husband and consists of real estate, there is frequently a jointure rent-charge given to the wife, and sometimes an annuity for pin money. When the property, whether real or personal, belongs to her, she usually takes an interest in it, or some part of it, for her life to "her separate use, with re- straint on anticipation. The cases on this subject have already been considered {ante, p. 371 et seq.). Jointure in Bar of Dower.] One method of barring dower was, as previously mentioned {ante, p. 351), by giving the wife a provision or jointure in lieu of it. But a pro- vision for the wife may be, in the ordinary and popular acceptation of the term, a jointure, though not intended to be in bar of dower. It was common, before the Statute of Uses, to convey origin of. estates to trustees to the use of the husband. As the trustees took the legal estate, the wife not being dowable of a trust, would have been without a provision but for the practice of making one for her, by the husband taking a conveyance from his trustees of some part of his property to himself and wife in joint tenancy. "A jointure, strictly speaking, signifies a joint estate limited to both husband and wife, but pp2 580 Marriage Settlements. 27 Hen. 8, c. 10. Requisites of legal jointure. By agreement. By tenant in tail, deed not enrolled. Elopement. Adultery. At what time. in common acceptation extends also to a sole estate limited to the wife only." 2 Bl. Com. 137. The limitation to them jointly gave the wife an estate by survivorship on the death of her husband in her lifetime. When the Statute of Uses turned the use into possession the wife would have been dowable of all her husband's estates, but for the provision in the act, that the wife should not be entitled to dower where she had a jointure settled upon her. See 27 Hen. 8, c. 10. The chief requisites of a good legal jointure in bar of dower are thus (in substance) stated by a learned writer. 1 Eop. Husband and Wife, by Jacob, 464, et seq. ; and see Co. Litt. 36 b. 1. The jointure must necessarily commence at the hus- band's death. 2. It must be limited to the wife solely, or to her and her husband jointly. 3. It must be for her life or greater estate (Co. Litt. 36 b), or be determinable by her own act. 4. It must be made before the marriage; if after, it is void- able at her election on her husband's death. lb.; Frank v. Frank, 3 M. & Cr. 17. 5. The jointure must be expressed to be in satisfaction of dower. 6. At law the jointure cannot be out of a trust estate, but otherwise in equity. The wife, though an infant, is bound by a proper jointure {ante, p. 573). When she is of age she may agree to accept her husband's bond as a provision for a competent jointure in bar of her dower {Dyke v. Rendall, 2 D., M. & G. 209), or any provision out of his personalty. Caruthers v. Caruthers, 4 B. C. C. 500, 513. A jointure by the husband tenant in tail, though void as against the remainderman, the deed not being enrolled under the act, is a bar of the wife's dower. Cooper v. Cooper, 6 Ir. Ch. Eep. 217. This was on the Irish Act, but the rule would, be the same in England, for the provisions in both acts as to enrolment are alike. A jointure in lieu of dower and thirds at common law is no bar of a distributive share under an intestacy. Colleton V. Garth, 6 Sim. 19. The wife's elopement or adultery does not bar her right to her jointure. Sidney v. Sidney, 3 P. W. 269; Seagrave V. Seagrave, 13 Ves. 443. Value, SfC. of Jointure.] A covenant that the jointure estates are of a particular 'value means of that value at the time of the settlement, not that they shall continue of that Release of Jointure. 581 value. Speake v. Speake, 1 Ver. 217; see JFace v. Bicher- ton, 3 De G. & S. 757. If the rents oi other settled estates are bound by covenant Deficiency. to make good any deficiency in the jointure estates, the covenant is a lien on the former estates in case of deficiency. Eustace v. Keightley, 4 B. P. C. 588. And a covenant to charge after-acquired estates with the jointure binds an estate contracted for. JVarde v. Warde, 16 Bea. 103. In JSIonypenny v. Monypenny (3 D. & J. 572), the hus- Covenant as to band granted a rent-charge to his wife out of an estate which "^''' '" distrain. he held only for his own life, and covenanted that she might distrain. It was held that the wife had a remedy under the covenant after her husband's death, and that damages were recoverable proportioned to the loss sustained by rea- son of the covenant not being available against the land. A devise of all the covenantor's lands in a particular place Satisfaction ot to the wife for her life is no satisfaction of a covenant that jointure lands are of a particular value if they are not {Prince v. Stebbing, 2 Ves. sen. 409); but a devise of the whole of the jointure lands to the wife for life will, if they are of sufficient value, be a satisfaction of the covenant; and a devise of part a satisfaction pro tanto, the jointure being apportioned rateably on the respective properties charged with it {Eyre v. Green, 2 Coll. 527), unless a contrary intention appear by the will. Grigby v. Poioell, 3 CI. & Fin. 103. Interest is not allowed on arrears of jointure except in no interest on very special cases. Anon., 2 Ves. sen. 661. arrears. Release.^ Where a jointress to facilitate a sale releases Effect of release, the estate charged with her jointure, and agrees to accept wife's equities the income of investments arising from and representing the ''^'^'• proceeds of the sale, such income being at the time equal in amount to the jointure, the capital of such investments must in general make good any deficiency of income occasioned by reason of the substituted security proving insufficient (^rww- dell Y.Arundell, 1 M. & K. 316). When the wife releases the jointure lands to enable her husband to mortgage, her right will subsist as against the equity of redemption. Wood V. Wood, 7 Bea. 183. A release of part is not now a release of the whole, al- of part, not re- though formerly it was. 22 & 23 Vict. c. 35, s. 10. lease of the whole. A jointress, who is in possession of the title deeds, is not conflrmation— obliged to produce or deliver them up unless her jointure is T'UedeeSs. confirmed. Petre v. Petre, 3 Atk. 511 ; Ford v. Perring, 1 Ves. jnn. 76. 582 Marriage Settlements. What it is. Application of. Savings. Wliat it is .. Application of Sec. 2. — Pin Money. .. 582 I Savings . . 582 I Arrears 582 582 By the expression pin money is usually understood money to be expended by the wife in dress and ornaments suitable to her station in life. The wife is not liable to account for its application, but it is said to be coupled with a duty to apply it for her dress, ornaments, &c. Howard v. Bigby, 2 Ci. & Fin. 634 ; Sug., H. L. Ca. 162; Jodretl v. Jodrell, 9 Bea. 45. That duty performed, she is entitled to any savings in like manner as other savings of property settled to her separate use. Sir P. Neal's Case, cited Pr. Ch. 44. If the husband has provided for his wife's dress, &c., she cannot claim any arrears at his death {Fowler v. Fowler, 3 P. W. 355 ; Howard V. Digby, sup.) ; unless, perhaps, where they have previously been demanded of him and he has promised to pay them. See Ridout v. Lewis, 1 Atk. 269 ; Foss v. Foss, 15 Ii-. Ch. 215 ; Edgeworth v. Edgeworth, 16 Ir. Ch. E. 348. As a general rule an account for it will not be carried back beyond one year. Ld. Townshend v. Windham, 2 Yes. sen. 7 ; Peacock v. Monk, ib. 190 ; Thrupp v. Harman, 3 M. & K. 513. CHAPTER VII. OF THE INTEKESTS OF THE CHILDREN UNDER SETTLEMENTS OF PERSONAL ESTATE. Zfsttal Provisions .. •• 582 Hotchpot Clatise .. .. 583 Nature of •• .. 583 Right of Appointee to share in unappointed Fund 683 W7ien Appointee ex- cluded .. .. 583 May lieep appointed Fund and give lip nil- appointed Interest , . 581 Power of Advancement .. 584 Otjectof .. ..684 Horn exercised .. . . 584 Marriage of Daughter . 584 For benefit of Child . . 584 Consent by Tenant for Idfe 584 Advancement by the Court 585 Maintenance and Accumu- lation Clause . . . . 585 Usual Provisions.] The usual provisions for children in a settlement of personal estate, or real estate directed to be sold, are, subject to the life interests of the husband and wife. Usual Provisions for Children. 583 for all the children (and sometimes remoter issue) of the mar- riage as the parents or survivor of them shiiU appoint, and subject to and in default of appointment, for sons who attain twenty-one, and daughters who attain that age or marry under it. Thus no interest will vest in them unless they attain the prescribed age, or, being daughters, marry under it. See post, tit. " Vesting and Devesting op Estates." There are also, in general, provisions for advancement, main- tenance and accumulation. Hotchpot Clause.] The settled trust funds are usually Nature of. subject to the appointment of the parents. It not unfre- quently happened that, by reason of a partial exercise of a power, its objects became entitled to participate in the fund subject to it in unequal shares, though this result might have been quite contrary to the intention of the appointor. Thus, on a partial appointment being made to one object and no appointment to the others, the appointee took his own ap- pointed part, and in addition an equal share with the others of the unappointed part. Nothing indeed is better established AppoiDtee jmmi by the authorities than the rule that an appointee, object of {^j,je™ u^ap-" the power, is entitled to share in the unappointed fund, pointed tund. Wilson V. Piggott, 2 Ves. jun. 351 ; Fordyce v. Bridges, 2 PhiU. 497, 513; Wombwell v. Hanrott, 14 Bea. 143. And his right will not be excluded by the appointment being ex- pressed to be of his share of the fund or portion {ib.), or in lieu of all claims for the original or principal share in the trust fund, unless followed by a proviso that the appoint- when appointee ment shall not affect the right of accruer and survivorship, '^"'"^ • the intention in that case being clear to limit the right to the case of accruer and survivorship on the death of the other objects of the power. Foster v. Cautley, 6 D., M. & G-. 55. The right of the appointee will also be excluded where the appointment recites the desire of the appointor that the fund shall be equally divided between the objects of the powers. Fortescue v. Gregor, 5 Ves. 553; Alloway v. Alloway, 4 Dr. & War. 386, 391. But the general rule being as stated, it follows that a child to whom an appoint- ment has been made will have an advantage over any other child or the representatives of any deceased child to whom no appointment had been made. To prevent this it has ' become usual to insert what is termed the hotchpot * clause, by the operation of which no child taking under an appoint- ment can claim a share of the unappointed fund without * According to Littleton, the -n-ord means pndding. See Co. Lit. 176b, 177a. 584 Marriage Settlements. Appointee may keep appointed and give up un- appointed sliare. bringing his appointed share into the common stock, a division of which is then made between the children equally. Of course, however, the appointee is not bound to do this, unless he claims apart of the unappointed fund; but he may elect to keep his appointed share and give up his right to any unappointed part of the fvmd. The hotchpot clause is founded upon the same principle as the provision relating to hotchpot in the Statute of Distributions. Ante, p. 265. Where separate sums are settled by separate deeds, each containing the hotchpot clause, the clauses are distinct and operate only on the funds respectively subject to them. Montague v. Montague, 15 Bea. 565. Power of Advancement.'] The usual power of advance- ment authorizes the trustees (in the lifetime of the parents or survivor, with their, his, or her consent) to raise a part, not in general exceeding half of the expectant share of any child for his or her advancement in life. Such a power is usually exercised by the trustees raising the sum authorized or part of it, and applying it either in apprenticing the child, buying him a commission in the army, setting him up in business, or the like, as in their discretion may be best for his interests. When a daughter is an object of the power, it also authorizes an appointment on her marriage. Lloyd V. Cocker, 27 Bea. 645. In Roper Curzon v. Roper Curzon (L. E., 11 Eq. 452), the court allowed a sum to be advanced after the marriage of a son, and settled upon the trusts of a post-nuptial settlement by him, he having no other provision, and the parents, the tenants for life, consenting. A power ot advancement (under a will), for setting up the children ot the testator in business, does not justify trustees m advancing the share of a married daughter for the purpose of paying her husband's debts. But the share may be advanced to set up the daughter in business, her husband covenanting that it shall be for her separate use. Talbot v. Marshfield, L. K., 3 Ch 622 If the advancement be once completed, as Dy the purchase of a commission, though it may from circiim- stances be sold again almost immediately afterwards m the absence of fraud, the purchase-money will belong to the child advanced. ZcrwWe v. 5anAe«, 4 K. & J . 14^- consent^ytenant The power of a tenant for life to consent to an advan - for mo".' ' jnent is extinguished if he part with his life estate Aoe V irf. Henlfy, M'Clel. & T. 303. To give effect to his I;nsent in such a case would enable him to derogate from Ws own grant. But a wife who has a life interest in a fund, with power of consenting to an advance for her children Tnd whoT on her husband's death, marries again without a Object of. How exercised in general. MarriE^e of daughter. Ts for benefit of child. Maintenance, ^c. Clauses. 585 settlement and without doing anything to affect her power, may consent to the advance, though her second husband has assigned her life interest. Whitmarsh v. Robertson, 1 Coll. 570. In cases in which the question of advancement has been Advancement by before the court, it has frequently broken into the capital of ° °°" " a child's share for the purpose of his advancement. Walker V. Wetherell, 6 Ves. 474. Maintenance and Accumulation Clauses.'] The settle- ment then usually provides for the application of the income of the expectant shares of the children for their maintenance and education, the surplus income being directed to be ac- cumulated, eventually to follow the destination of the fund out of which it proceeded. Now, by the 23 & 24 Vict. c. 145, provisions for these purposes are to be taken as included in settlements, unless there is a direction to the contrary. See post. Chap. VIII. CHAPTER Vin. OF THE INTERESTS OF OHILDEEN UNDER SETTLEMENTS OF REAL ESTATE. Trustees to preserve Con- tingent Remainders . . 585 Wlien unnecessary . . 585 Sec. 1. — Of the Eldest Son. Limitations to CIdldren in Tail 585 Posthumous Child . . 586 Trustees to preserve Contingent Remainders.] Following the limitations of life estates, there was almost invariably, formerly, a limitation to trustees to preserve the contingent remainders of the children or others in remainder. The ne- cessity for this is explained in tit. " Wills," Chapter on Contingent Remainders and Executory Devises. From what is there stated, it will be seen that such a limitation may still in some cases be necessary. This, however, is not the case when where there is simply a limitation for life to persons in esse, ^"^■ with immediate remainder to their own children. See and consider the useful observations, 3 Dav. Pr. Conv. 206 et seq. Limitations to Children in Tail.] The limitations of real estate in strict settlement are (subject to life estates) to the first and other sons in tail, then for the daughters in tail in unneces- 586 Marriage Settlements. I*09thnmou3 child. common, with cross remainders between thorn wifh in ge^ral, an ultimate remainder to the settlor nfe; ' '° setrdTr:s:;L^{reiTith^ ^"^ °^ -^^^^^^^ srzit^ienr^^^ inSe nexTLS??^ ^"-"""^ ^"'^''^ -'" ">' --^-S CommnX ^^ ^ ""^ ^''^^ Potions for younger children. seZTfc ''. ^n^'^***? °^ ^'"^ll ""^ Moderate value i se tied there ,s a trust for sale, the proceeds being held upon trusts for all the children, and there is not, or not often any dirP^flntn K "°,^'^«^«"«« between settlements of real estate dnected to be sold and those of ordinary personal estate, ante, ^ .0 ,;. . i^°'."Dfrequentl7 happens that the estate limited to the eldest son is subject, on his becoming entitled to another specified estate, to a shifting clause, carrying over the settled estate to a younger brother. These clauses wiU be considered in tit. " Uses." Again, a younger child becoming an eldest son may, by reason of the family or other estate being limited to him as eldest, be excluded from a younger child's portion, -which he would otherwise have taken. This subject will be considered in tit. " Powers." Sec. 2. — Of the Younger Children — Portions. § 1. Time of raising and paying Portions. Orcllnfliy pro- visions. Usnally subject to appointment. In default to sons at tvrenty-onc, (laughters at twenty-one or innrrloge. Ordiiuiry Provisions Usually subject to Appoint- ment In Befmdt toSons atTieenty- one, DmigMers at Tn-enty- one or Marriage . . Limitation to Issue Portions secured by Term 586 586 586 587 not subject to prior Life Interests 587 Subject to prior Life Interests 587 Cannot he raised to preju- dice of Jointress .. .. 587 Assets marshalled .. ., 587 Payable out of Sealty . . 588 In settlements of real estate there are usually provisions for raising portions for the younger children of the marriage; in general, where the property is large, by meanS of a term vested in trustees. Lil^e shares in settled personal estate, portions are almost invariably subject to a power of appoint- ment in the parents or one of them. In default of appoint- ment, the portions are in general (subject to the parents' life interests) payable to sons at twenty-one and to daughters at that age or on marriage under that age. Sometimes the powers Raising and paying Portions. 587 of the settlement are not limited to children, but extend to tbo issue, issue of the marriage generally; and where this is the case, and the word is used in its larger sense of all descendants, it will be construed accordingly. But if the context shows that the word is to be used in its more limited sense of children, it will be restricted accordingly. Marshall v. Baker, 31 Bea. 608. There are in general hotchpot, advancement and main- tenance clauses corresponding with similar clauses relating to settlements of personal estate {ante, p. 583), and clauses survivorship aud of survivorship and accruer; by the operation of which the '«^""'^''- portion of a child who does not take a vested interest goes over (subject to any appointment to the contrary) to the children who do. In general where, as is usual, the eldest son takes the estate (ante, p. 585), he is excluded from any participation in the portions. See, as to a proviso avoiding portions in the event of the estates shifting, Visct. Holmesdale v. TVest, L. R., 12 Eq. 280. Where the portions are secured by a term, if the payment Portions secured of them be not expressly made subject to the life interests J'e^cttopriorUfe" of the parents, as is now almost invariably the case, the interests, portions will be raiseable in their lifetime, though the term may be reversionary. Corbet v. Maidwell, 1 Salk. 1 59, and many other cases cited in Codrington v. Foley, 6 Ves. 364, 371; Michell v. Michell, 4 Bea. 549; Massey v. Lloyd, 10 H. L. C. 248; see a very useful note (3) to Smith v. Evans, Amb. by Blunt, 633. But if the term or other estate of subject to prior the trustees cannot be made available in the lifetime of the '"'' interests, tenants for life, the portion cannot then be raised (Butler v. Duncombe, 1 P. W. 448; Brome v. Berkley, 2 'P. W. 485), or even in some cases where the term precedes the life estate. Lawson v. Swetenham, 18 Bea. 98. Where the portions are subject to contingencies, they are not raiseable during a life estate, unless the contingencies have happened. Codrington v. Lord Foley, 6 Ves. 376. So if the portions are subject to a power which is exercised, they cannot be raised against the tenant for life. Wynter v. Bold, 1 S. & S. 507. Portions cannot be raised to the Portions cannot prejudice of a jointress. Churchman v. Harvey, Amb. 335 ; ^u^^^oj I'ointress Hall V. Carter, 2 Atk. 356. Nor can portions which are prior payment of payable after satisfaction of debts be raised until the debts *^''''*- are discharged. Daly v. French, 6 B. P. C. 55. Where a term is created to secure portions, with power to revoke it, the portions cannot be raised while the power subsists. Beresby v. Newland, 2 P. W. 101. Equity will marshal assets in favour of children entitled to Assets marshalled portions. Thus, where a jointure rent-charge is charged uH^to wrtiona upon an estate and also secured by covenant, and portions 588 Marriage Settlements. Portions payable out of realty. are charged upon the estate, hut not otherwise secured, equity will decree the rent-charge to he satisfied out of the assets bound by the covenant, if sufficient, leaving the estate clear to discharge the portions. Reeve v. Reeve, 1 Ver. 219; Lanoy v. D. of Athol, 2 Atk. 444. It does not appear to be settled whether the court will allow all the portions when charged on l&ndi— presumptive as well as vested — to he raised, or only the latt«r. Upon this point the authorities are conflicting. In some cases, the court has allowed the whole sum to be raised at once, though some of the children were then under age, and had not acquired vested interests; the portions of the latter being invested in government securities for them, or for those entitled in default of their attaining vested interests. Gillibrand v. Goold, 5 Sim. 149; Leech v. Leech, 2 Dr. & W. 568. In others, the court has refused to allow the amount of portions not immediately payable to be raised at the instance of the eldest son, who was desirous of having the estate discharged from them. This would involve, the court said, a change of the security and a diminution of interest. Dickenson v. Dickenson, 3 B. C. C. 19 ; Wynter v. Bold, 1 S. & S. 507 ; Sheppard V. Wilson, 4 Ha. 392. § 2. Mode of raising Portions. Payable out of Securities . . Portions charged on Zand . Out of Rents and Profits . . Cutting Timber Worldng Mines Sale autJiorized Pomer to appoint .. Where mere Charge, Sale or Mortgage allowed 588 588 589 589 589 589 Pomer to mortgage autho- rizes Sale . . . • ■ • 589 Portions raised . . . • 589 Land discharged . . . . 589 Cost of raising falls on Estate 589 Advance by Fatlier . . 589 Release by advanced Child to Father 590 Keeping Charge on foot .. 590 When portions are invested in the funds or other securities PayaMs out of se- ^^ ^^ ^J^ t^e portions are raised by realizing the secu- rities, the portions being paid out of the monies thus raised , , . to the children or others entitled. If the portions are charged the settlement, and is generally out of the rents and profits of the estate, or by demise, sale or mortgage. Portions are sometimes directed to be raised out of yearly rents and pro- fits, or even rents and profits generally. In such cases it wa? held formerly that there could be no sale or mortgage ot The estate Trifford v. Ashton, 1 P. W. 415; Evelyn v. Evelyn 2 P. W^666. It was held, however, in an early case that where the ordinary profits (by reason of the term Out of reiita and profits. Mode of raising Portions. 589 being too short) were not sufficient to raise a portion, timber cutting timber, might be felled, or a mine worked, for the portion against working mines, the heir {Offley v. Offley, Pr. Ch. 27) ; and the rule was gradually extended, until the court at length construed the power to raise portions out of rents and profits generally as authorizing a sale or mortgage of the lands, unless where sale now autho- restricted by the context. Ly. Shrewsbury v. Ld. Shrews- bury, 1 Ves. jnn. 233 ; see 2 Ves. jun. 481, n. ; Bootle v. Blundell, 19 Ves. 528 (on a will). The question being one of intention ( Wilson v. Halliley, 1 R. & My. 590), the con- struction authorizing a sale or mortgage will not be affected by the direction being to raise as soon as conveniently may be (Trafford v. Ashton, 1 P. W. 415), or by its being coupled with the expression of a desire that the estate should be kept entire. Allan v. Backhouse, 2 V. & B. 65; aff. 1 Jac. 631. A power of appointing portions, in such manner Power to appoint and in such proportions as the appointor shall think fit, in- tioiftoraise'by' eludes a power to direct them to be raised by sale or mort- sale or mortgage. gage. Green v. Belcher, 1 Atk. 507. The court will decree a sale or mortgage, although there Mere charge, saie may be no term to secure the portions, but they are simply ^^?^f^** charged on the land, or the trustees have only a right of entry to receive the rents and profits or a power to distrain. Meynell v. Massey, 2 Ver. 1 ; Green v. Belcher, 1 Atk. 505. Under a power to mortgage for portions, the court may order Power to mort- a mortgage or sale {Gerrard v. Gerrard, 2 Ver. 458), and ^k« ^-^^ori^^ the court, the heir desiring it, will decree a sale, though the younger children are desirous of having their portions raised out of rents and profits. Warburton v. Warburton, 2 Ver. 420. To raise by demise was held in one case to mean not at rack rent but on fine. Smith v. Evans, Amb. 633. When portions raised. once the portions have been raised and paid to the trustees, Land discharged. the land is discharged though the trustees misapply the fund. Juxon V. Brian, Pr. Ch. 143 ; Carter v. Barnardiston, 1 P. W. 518; see Harrison v. Cage, 2 Ver. 85. The costs cost of raising of raising portions in general fall on the estate out of which ^^^ °° '*'*''=• they are raised. Michell v. Michell, 4 Bea. 549. When a parent makes an advance to one of several children Advance by entitled to a portion in default of appointment, it will prima '^""='■■ facie, and in the absence of any direction to the contrary, operate to the exoneration of the estate charged. Folkes v. Western, 9 Ves. 460; Noel v. Ld. Walsingham, 2 S. & S. 99; Lee v. Head, 1 K. & J. 620. But the parent may declare that the child advanced shall receive its full portion irrespective of the advance, or may declare that the sum advanced shall remain a charge upon the estate for his (the parent's) own benefit. Noel v, Ld. Walsingham, 2 S. & S. lleleasG by ad- . vanced cliild not equivalent to assignment. Keeping charge ou loot. 590 Marriage Settlements. 99, 111. A release by the child to the father, advaneino. the portion, of the sum advanced, will not be equivalent to an as^signment of it to him. Noel y. Ld. Wahingham, sup. Where, therefore, the intention is to keep on foot the sum advanced, there should be an explicit declaration to that effect or an assignment. See Gower v. Gotver, 2 Cox, 53. § 3. Amount to be raised. When, variable aceording to Ntmiber of Children . . 690 Survivorship and Accrver . , 590 Death after Interest vested. 590 When variable according to nuni' Ijer of cliildren. Survivorship and accruer. _ Not unfrequently the gross amount to be raised for por- tions dependsupon the number of the children, that is, if one so much, if two so much more, coupled frequently with clauses of survivorship and accruer. In Rolt Y. Eolt (Ca. t. Tal. 189), a sum of 2,000Z. was to be raised for every younger son, and a sum of 3,000/. for every younger daughter, to be paid at twenty-one, the share of a child dying to be equally divided amongst the survivors. There were four younger sous and two daughters, one of whom died under age. It was held that a sum of 14,000/. was to be raised, the share of the deceased daughter being divided according to the trusts of the settlement. See Knapp v. Knapp, 6 W. N. 92. And though there may be no clause of survivorship and ac- cruer, yet if the articles or settlement direct, in express terms, that on the birth of each clyld an additional sum shall be raised, payable at a particular age, the whole sum will be raiseable according to the number of children born, and payable to the child or children attaining vested interests, though some may have died under the specified age. Hemming v. Griffith and Grijfith v. Hemming, 2 Giff. 403. And a child will be en- predecSS^ "'"^ titled if he attain the age of vesting, though he may die before parents. his parents and before the share becomes payable. In Chol- mondeley v. Meyrick (1 Ed. 77), a term was created to secure portions (subject to a power of appointment, which was not exercised), if one younger child 5,000/., if two 6,000/., if four 8,000/., payable at twenty-one or marriage, if the father should then be dead. There was a clause of survivorship and accruer as to the shares of children dying before they were payable, with a proviso that the surviving child or children was or were not to have more in all than was pro- vided for them in case the deceased children had not been born. It was held, that the children attaining twenty-one or Child attaining Amount raised for Portions — Charge of. 591 mavrying in the father's lifetime were entitled to their shares, nithougli they afterwards predeceased their father. See Rooke V. Booke, 2 Ed. 8; mUis v. fVillis, 3 Ves. 51. An express direction, however, to raise only a particular sum in the event of there being only one child or a stated number of children living, will prevail over ambiguous expressions leading to a contrary construction. Thus, in Clarke v. Jessop (Dr. t. Sug. 301; see Chamberlain v. White, 6 B. P. C. 61), the trusts of a term were to raise not moi'e than 2,000Z., to be equally divided between younger children, sons at twenty-one, daughters at eighteen or marriage; pro- vided that if any such child should die under age and un- married, his or her share should go to the survivors, if but one younger child such child to have 1,000/. and no more, which sum was then alone to be raised. There were two younger children, who both survived their parents; one died under age and unmarried. It was held that a sum of 1,000Z. alone was raiseable. § 4. On what Property charged. Land charged with Portions primary Fund .. .. 591 Charge on Property of which Testator sJiould die seised or possessed . . . . 591 Charge on several states — Contribution .. .. 592 Express Cliarge .. .. 592 Portions secured Vy Term folloming Estate Tail . . 592 Where a debt exists and real estate is charged with the payment of it, nevertheless the personal estate of the person liable to pay the debt will be the fund to be primarily re- sorted to. But where real estate is charged, not in satis- Land charged faction of any debt, but in favour of a particular person, the ■"'*'' portions real estate must be resorted to. Wilson v. E. Darlington, ^ ™"^ ™ ' 1 Cox, 172, 175; Burgoyne v. Fox, 1 Atk. 576; Ferrers v. Ferrers, 6 B. P. C. 97. Upon this principle, where real estate is charged with portions, and they are also secured by the bond or covenant of the settlor, the realty will neverthe- less be the primary fund for payment. Lechmere v. Charl- ton, l5 Ves. 193. And where portions were secured by bond only, and the obligor charged them by his wiU on his real estate, that was held to be the fund for payment of them. Beade v. Litchfield, 3 Ves. 475; see Ward v. Ld. Dudley, 2 B. C. C. 316. When the portions are secured by covenant, the terms of the covenant regulate the rights of the parties taking under it, and the liability of the covenantor. Thus, a covenant to charge a sum for portions chaise on pro- mu Marriage Settlements. perty ol wlilcli testator ahould die seised or pos- Several estates. Contribution. Express charge. Term following estate tall. on all the real and personal estate of -whicli the covenantor shall die seised or possessed, and that they shall he a first charge, only binds the property of which the covenantor dies seised, and does not prejudice nor affect any bona fide deal- ing with it or disposition of it as against himself, as by charge, jointure or otherwise. Sullivan v. Sullivan, 2 Jo. (& Lat. 769. Where several estates are charged equally with the payment of portions, as between the estates themselves, each is liable to contribution in proportion to its value at the time of payment. If at such time the estates belong to dif- ferent owners, and one estate is in possession and the other in reversion, they will be valued accordingly ; and if the estate in possession has been compelled to pay the portions, it will be entitled to contribution out of the other estate when it falls into possession. Heveningham v. Hevening- ham, 2 Ver. 355; Wardell v. Wardell, 4 B. C. C. 286; see Ley v. Ley, L. E., 6 Eq. 174. The portions must be expressly charged upon property to make it liable to them. The liability will not be extended by implication from one estate to another. Therefore a devise of property, com- prising settled and other lands, subject to monies secured by the settlement, and which were charged on the settled lands, will not charge such monies on the devised lands. Gough V. Andrews, 1 Coll. 69. When portions are secured by a term which comes after a limitation in tail, this order will be reversed, to prevent the term being barred by the tenant in' tail. Uxedale v. Halfpenny, 2 P. W. 151. But unless priority has been given to the term, it may be barred by the tenant in tail. If not so barred, the portions will be, raiseable. " -'— - Hylton, 2 Ves. sen. 310. Ramsden v. Commences from. Time Por- tion is pay aMe .. •• 593 May lie appointed . . • • 693 Where no Power . . . . 593 To raise Portion after Per- son's Death ■• •• 593 § 5. Interest on Portions. Interest payable yearly Out of Rents and Profits Laches Rate of Lawful Interest 593 593 593 593 593 "All interest is in default of payment," i. e., of the prm- cipal. Butler v. Duncomb, 1 P. W. 448, 458 ; Churchman V Hervey, Amb. 335, 342. From the time a portion ought to be raised and paid, it in its own nature ought to carry in- terest, though not mentioned. E. Pomfret v. Ld. Windsor, 2 Ves sen 472, 487. The question therefore usually is, at Interest on Portions. 593 what time the portion became payable. If there be an ap- commences from pointment in pursuance of a power which authorizes interest, pl^^^'J^'^'"" lawful interest may be directed to be raised (Boycot v. May be appointed. Cotton, 1 Atk. 552 ; Hall v. Carter, 2 Atk. 358 ; Lewis v. Frehe, 2 Ves. 507), and must be raised at the time ap- pointed. Gough V. Andrews, 1 Coll. 59. But it frequently happens, that the power does not in terms authorize the ap- pointment of interest. In such cases, where the power is — as it generally is — to appoint in such manner and in such proportions as the appointor shall think fit, he may appoint the money to be paid at any time, as at twenty-one or mar- riage, and interest will be allowed from such time. Green v. Belcher, 1 Atk. 505, 507; see Conway v. Conway, 3 B. C. C. 267. When there is no power of appointment, or it is not exer- wiiere no power, cised, interest is payable on portions from the time they become payable, according to the general rule. See the cases ante, p. 586. Therefore, if the portions are to be raised in the lifetime of one or both parents, interest will be payable from that time. Codrington v. Ld. Foley, 6 Ves. 364, 380 ; Gough v. Andrews, 1 Coll. 59, 69. And where to raise ana pay the portions are to be paid after the decease of a person, a^h*'"^"™^ interest is payable from that time. Hope v. Ld. Clifden, 6 Ves. 499—511 ; see Bacon v. Clerk, Pr. Ch. 500 (on a will). Interest which is given from a certain time should not be Payable yearly, allowed to accumulate, but be paid annually. Boycot y. Cotton, 1 Atk. 553. If the portions are payable out of rents Oat of rents and and profits only, the portions are only due when the profits '"'°*''- can raise them, and they only carry interest from the time the profits amount to enough to satisfy the portions. Ivy v. Gilbert, 2 P. W. 13, 20; Bagenal v. Bagenal, 6 B. P. C. 81. But if they are to be paid out of profits or by sale the general rule applies, and interest runs immediately from the time the portions are payable. Roseberry v. Taylor, 6 B. P. C. 43. Interest will not be allowed where the parties entitled Laches, to the principal have been negligent of their rights. Merry V. Eyves, 1 Ed. 1; Barrington v. O'Brien, 1 Ba. & Be. 180. Four per cent, is the rate of interest usually allowed by the Kat« ot 4 per court. See Codrington v. Ld. Foley, 6 Ves. 364, 384. Under '=^"'- an appointment any lawful interest may be directed to Lawtni interest. be raised. Lewis v. Frehe, 2 Ves. jun. 507. This case was decided when the rate of interest to be considered lawftil was fixed by law. Any interest may now be con- sidered lawful; but it is apprehended, that, in the absence of an express power authorizing any interest, an appointor ^y. Q Q 594 Marriage Settlements. could only direct such interest to be raised as the court would consider reasonable. §6. Not raAaealle in Lifetime of Tenant for Life, unless Direction . . Time of Payment fixed by Settlement .. . . Father, if of aUlity must maintain . . . . . , Unless lie contraet otJiermise Cireumstances of Father . . Children taken from tlrn Father Mother not hound to maiTi- tain Maintenance allowed, mlie- ther Portions vested or not 23 ^ 24 Vict. 0. 145 Maintenance. Apportionment 596 Too little allowed .. .', 696 594 Allomamce for past Main- tenance 596 594 Not always limited to mere MwinteTiance 596 594 Child liamng another Pro- 595 vision 597 595 Brealdng into Capital . . 697 Rate of Interest .. 697 595 Trustees not hmmd to ac- count 697 595 Infant out of JitrisdicUon . Divorce and Matrimonial 698 Causes Act 598 596 Custody, Maintenance and 596 Education of Children . . 698 Not raiseable in lifetime of tenant for life, unless di- rection. When time fixed by settlement. Father, il of abi- lity, must main- tain children. Some of the cases referred to under this head have been decided on wills, but are for the most part equally appli- cable, in principle, to settlements. The subject of mainte- nance out of portions is closely connected with that of inte- rest, the interest in general forming the fund for mainte- nance. When these is no provision for maintenance until the portion is payable, such a provision will not be impUed. See Butler v. Buncombe, 1 P. W. 448, 454. But where it is clearly expressed, effect must be given to it. Staniforth V. Staniforth, 2 Ver. 460. The court will in particular cases allow it to be raised, if necessary, by sale or mortgage of the term. Lyddon v. Lyddon, 14 Ves. 558. But the court leans against the construction for raising portions or maintenance out of a reversionary term. Ly. Clinton v. Ld. Seymour, 4 Ves. 440. See Pierpoint v. Ld. Cheney, 1 P. W. 488; Ravenhill v. Dansey, 2 ib. 179. When the time of payment is expressly or impliedly fixed by the settle- ment, maintenance can only be given from that time. Hume V. Rundell, 2 Sim. & St. 174. As m the case of legacies, if the father be living and able to maintain his children he must do so, though there may be a fund applicable for this purpose in the event of his ina- bility. Thompson v. Griffin, Cr. & Ph. 317. The distinc- tion which formerly prevailed between gifts to children by way of bounty (as legacies under wills) and interests derived Maintenance. 595 under settlements does not now prevail, or at all events will not be carried further. lb. In this case the father being of ability, the court refused to allow maintenance, though there was a power given to trustees to apply the income of a fund for maintenance, although in the prior case of Mundy V. E. Howe (4 B. C. C. 224), where there was the same power, maintenance was, under the circumstances of the case, allowed, notwithstanding the father was of ability to maintain the children. But he may contract by the marriage settle- unless he con- ment that certain property shall be applied to this purpose; '^'^ ' in which case, although he may be of ability to maintain the children, he will be entitled to what he has contracted for. Meacher v. Young, 2 M. & K 490; Stocken v. Stocken, 4 M. & Cr. 95; Thompson v. Griffin, sup. In Ransome v. Burgess (L. E., 3 Eq. 773), Kindersley, V.-C, commenting on the four last-cited cases, observed, in sub- stance, that the result of them appeared to be, that where the trust property was derived from the bounty of a stranger, the father, if of suflBcient ability, was not entitled to have the income applied for maintenance; but if the trust pro- perty was the subject of a marriage settlement, and there- fore the creation of the trusts a matter of contract, and a trust was expressed for the application of the income for maintenance, the father was entitled to what was proper for such maintenance without reference to his ability, but other- wise where the language of the settlement expressed merely s. power. lb. p. 780. Where the father is not of ability, it is not necessary circumstances of that he should be actually insolvent to induce the court to "" '^"'"■• make an order for maintenance, for if he be unable to give them an education suitable to their expected fortunes, main- tenance will be allowed. Brickworth v. Brickworth, 1 Cox, 80 (on a will); see Ex parte Williams, 2 Coll. 740. In one case maintenance was allowed under the circumstances, although the father had 6,000Z. a year. Jervoise v. Silk, 1 G. Coop. C. 52. But the father, though of ability, will not be compelled to Chuaren taken maintain his children where there is a fund available for '"""'"""er. that purpose, and they have been taken from him by order of the court. Wellesley v. D. Beaufort, 2 Russ. 1, 29. The mother is not under the same liability to maintain Mother not boundi the children as the father, and after his death she is entitled *° ""^'"i"- to an allowance for this purpose, even although of ability to maintain them. Billingsley v. Critchet, 1 B. C. C. 268. And notwithstanding she may have a separate estate. Hodgens v. Hodgens, 4 CI. & F. 323; see Ex parte Ld^ Petre, 7 Ves. 403. qq2 596 Marriage Settlements. Maintenance al- lowed whether portions vested or not. 23 S 24 Vict, c. 145. Apportionment. Too little allowed by mistake. Allowance for past maintenance. Not always li- mited to mere maintenance. When no question arises as to subsisting life interests, the court will allow maintenance to childi-en, who have no other provision, out of the interests of the portions to which thev are presumptively entitled, although there may he no ex- . press direction in the settlement to that effect. Brewin v. Brewin, Pr. Ch. 195; Warr v. Warr, ib. 2)4. And now by the 23 & 24 Vict. c. 145, where property is held in trust for an infant on attaining twenty-one, or contingently on any event previously to his attaining that age, the trustees may apply towards the maintenance or education of the infant the whole or any part of the income of the property, whether there shall be any other fund applicable thereto or not, or any other person boimd to provide for such main- tenance or education or not, and may accumulate the residue of the income not so applied, with power to resort to the accumulations if necessary (s. 26). This provision is only applicable, as regards deeds, to those executed after the 28th August, 1860 (s. 34). This power is substantially the same as that usually inserted in settlements. Maintenance expressly given by the settle- ment, until the children attain their majority or (being females) marry under age, will be apportioned and paid up to the very day of majority or marriage {Hay v. Palmer, 2 P. W. 501), at which periods the portions themselves are in general made payable, subject to the life interests of the parents. If through mistake a less sum has been applied than ought to have been for the maintenance and education of a child, the court will allow the parents or guardians, who have expended more, to be repaid the excess to the extent of what would have been a proper allowance. Stopford v. Ld. Canterbury, 11 Sim. 82. Originally the allowance for maintenance was only pro- spective. Hughes v. Hughes, 1 B. C. C. 387. In later cases, however, the court has ordered the allowance to he in respect of -past as well as future maintenance {Ex parte Penleaze, ib. 387, n. ; Maberly v. Turton, 14 Ves. 499), on a special case being made, but not as a matter of conrse. Ex parte Bond, 2 M. & K. 439. Where the allowance is for past maintenance, it will not be for more than the sum actually expended within the limits of a proper expenditure. Bruin V. Knott, 1 Ph. 572 ; see Parsons v. Parsons, 13 W. R. 214. The allowance will not always be limited to what is necessary for mere maintenance and education; it will, in proper cases, be extended to the keeping up of a family mansion, or the like. See Griggs v. Gibson, H W. R. 538 (on a will). Maintenance. 597 Maintenance given by the settlement is raiseable, notwith- ^^™ J^^^'^'^J.™" standing another provision may be given or comes to the child, as by devise or descent. Ravenliill v. Dansey, 2 P. W. 179; see Poulett v. Poulett, 6 Madd. 167. Where an infant is entitled in expectancy to two or more funds, the annual income of any one of which would be sufficient for his main- tenance and education, the court will apply the income of that fund which it is most advantageous for him to have appUed for that purpose. Lygon v. Ld. Coventry, 14 Sim. 41 ; Bruin v. Knott, 1 Ph. 572; see Foljambe v. Willoughby, 2 S. & S. 165; Martin v. Martin, L. R., 1 Eq. 369. The court will very rarely apply part of the capital for '''''1?'^"= '"'" maintenance, or sanction such application on the part of a trustee ( Walker v. fVetherell, 6 Ves. 474) ; though, under special circumstances, particularly where the outlay has been for the advancement of the child, this has been done, and the court has broken into a very small capital. Ex parte Swift, 1 R. & My. 575 ; Ex parte Chambers, ib. 577 (under wiUs); Exparte Green, IJ. & W. 253; seeDavies v. Davies, 2 D., M. & G-. 51. So where the infant was about to go abroad under circumstances advantageous to him. Re Eng- land, 1 R. & My. 499 ; see Ex parte Hays, 3 De G. & S. 485; fFaZsAv. JFaZiA, 1 Drew. 64. Sometimes even an ad- vance by the trustee, under circumstances very beneficial to the infant, will be allowed in the account between them. See JVorthington v. M'Craer, 23 Bea. 81; Prince Y.Hine, 26 Bea. 634; Robinson v. Killey, 30 Bea. 520. But money expended on the maintenance of infants from motives of kindness will not be allowed. Grove v. Price, 26 Bea. 105. When the portion is charged on land, and the settlement Eate of interest. does not specify any rate of interest, if the court directs maintenance to be allowed, it will be, as a rule, at the rate of 4 per cent, on the principal charged, unless where the rate of interest on mortgages is generally higher, when the higher rate will be allowed. Incledon v. Northcote, 3 Atk. 438. Where the settlement specifies the rate it cannot be exceeded. Long v. Long, 3 Ves. 286, n. As regards the application of a fund by parents or guar- Trustees not dians for the purpose of maintaining infants, if that duty be """"^ '" ''"^'='""''- properly performed, the court will not, as a rule, require any account as to the particular application of the fund, nor inquire whether there is any surplus or not (Jodrell v. Jodrell, 14 Bea. 397—412; Hadow v. Hadow, 9 Sim. 438); even where there is a direction that on the shares of the infants becoming payable the accumulations, if any, on such shares shall be paid to the children entitled. Browne v. Paul, 1 Sim., N, S. 92 ; see Raikes v. Ward, 1 Ha. 445. 598 Marriage Settlements. Infant out of ju- risdiction. Divorce and Matrimonial Causes Act. Custody, mainte- nance and educa- tion of children. As to orders for maintenance where an infant is residing out of the jurisdiction of the court, see De fVeever v. Roch- fort, 6 Bea. 391 ; Daniel v. Newton, 8 Bea. 485; Volans V. Carr, 2 De G. & S. 242 ; Lockwood v. Fenton, 1 Sm. & G. 73. The Divorce Court has power to direct in what manner damages recovered from an adulterer shall he applied, and to direct that the same, or part, shall be settled for the benefit of the children of the marriage, or as a provision for the maintenance of the wife. 20 & 21 Vict. c. 85, s. 33. This court may also, in pending suits, provide by interim orders, and (under the 22 & 23 Vict. c. 61, s. 4) in the final decree, for the custody, maintenance and education of the children of the marriage, or for their being placed under the protection of the Court of Chancery (s. 35). See Re Curtis, 28 L. J., Ch. 458. CHAPTER IX. VOLUNTARY EEMAINDEES AND ULTIMATE LIMITATIONS. Voluntary Remainders What Remainders tlie Marriage Considera- tion will support In general only to Hus- land. Wife and Issue 698 To Children of former Marriage Future Marriage Illegitimate Child To one Child on Mar- riage of another To Brothers, ^c. Nepliems, Nieees . , Voluntary Remainder 598 598 Voluntas/ Remainders — contd. followed by Remain^- der resting on good Consideration .. 600 Mast of Kill .. . . 600 698 Ultimate Limitations . . 600 Real Estate .. ..600 599 Personal Estate . . 600 599 Word "unmarried" .. 601 599 No Next of Kin ..601 599 Wife, rohen absolutely entitled .. ..601 599 Time of ascertaining 599 Glass of Next of Kin . 601 Limitation to Heirs . . 601 Wliat remainders tlie marriage con- sideration will support. Husband, wife and issue. Voluntary Remainders.] It was formerly considered that the marriage consideration rendered valid all the estates raised by the settlement, so as to make them good against purchasers from the settlor. Jenkins v. Keymiss or Kemish, 1 Lev. 150, 237; 2 P. W. 252; Hale v. Lamb, 2 Ed. 292— 295. This doctrine, however, was soon shaken, and it was laid down broadly that the marriage only supported limita- tions to the husband and wife and their issue, and not to collaterals or strangers ( Osgood v. Strode, 2 P. W. 245, 255; see the ca.ses post, p. 599); and this is stiU the doctrine Voluntary Remainders. 599 of the court, subject to certain exceptions, which will be presently noticed. Where, however, a widow or widower, on a second mar- children of for riage, makes a provision for the children of the first as well ""^r'aso- as of the second marriage, it will be good. Newstead v. Searles, 1 Atk. 265; Ithell v. Beane, 1 Ves. sen. 216. But Future man-iai limitations to the children oi a, future marriage are voluntary. Wollaston v. Tribe, L. E., 9 Eq. 44; see lie Cullin, 14 Ir. Ch. Rep. 506. A limitation to a second son in remainder in to one child oi tail, on a settlement made on the marriage of the first son, '^^^^'^ °' "" will not make the second son a purchaser. See Staplehill Y. Built/, Pr. Ch. 224; comp. Reeves v. Reeves, 9 Mod. 128, 132 ; Goring v. Nash, 3 Atk. 186, where the articles were executory. In Pulvertoft v. Pulvertoft (18 Ves. 90 ; and see Sutton To brothers. v. Chetwynd, 3 Mer. 249, 255), Lord Eldon observes, that " where limitations extend to brothers or other relations, all within the (marriage) consideration, those are not cases of voluntary settlement." From this and the marginal note it would at first sight appear that he intended to express an opinion in favour of limitations to collaterals being within the marriage consideration. But this could not have been the case. See ante, p. 561. In Johnson v. Legard, it was held in two courts (see 6 M. & S. 60 ; 3 Madd. 283), and ultimately by Lord Eldon, on appeal (T. & R. 66, 281), that, apart from the effect of an act of parliament which had been obtained, the remainders, which had been limited to the brothers of the settlor, were voluntary. This case has since been followed, and the doctrine there laid down is clearly established. In Stackpoole v. Stackpoole (4 Dr. & War. 320, 353), Sir E. Sugden, L. C. Ir., observed, that he could not say that the authorities were not in support of it, and the current of opinion of the profession had always been in favour of it. Limitations to brothers being volun- tary, those to more distant relatives would of course be so. In Smith v. Cherrill (L. R., 4 Eq. 390), limitations sub- Nephews, nieo( sequent to those for the issue, and in favour of collateral *"■ relatives, including a niece who had been adopted as a child, were held to be voluntary, and void under the 13 Eliz. c. 5, against creditors. In Wollaston Y. Tribe (L. R., 9 Eq. 44), the ultimate limitations in default of children were, to the nephews and nieces of the intended wife ; in default, to her next of kin. There was no power of revocation. There were nephews and nieces, but no children, living at the death of the husband, and the settlement was held void against the wife surviving, there being no evidence to show 600 Marriage Settlements. Voluntary re- mainder followed by remainder resting on good consideration. that the limitations to the nephews, &c. were intended to be irrevocable. But a voluntary remainder, followed by a remainder rest- ing on a good consideration, will, it has been held, be sup- ported, though the latter remainder cannot arise. In Clayton y.Ld. ?fi7tora(Sug. V. &P.716, n., ISthed.; H. C, 3 Madd. 302, n. (a) ; and 6 M. & S. 67, n.), the intended husband settled an estate on himself for life, with remainder to the first and other sons of the intended marriage in tail male, and with similar remainders to the first and other sons of the settlor by any after-taken wife^ remainder to the daughters of tlie intended marriage in tail, remainder to the settlor in fee. The wife died without issue. It was held, that the husband, who had not married again, could not make a good title to the fee; in other words, that he could not defeat the voluntary contingent remainders to his sons by a subsequent marriage, should he marry again. The principle of this de- cision is, perhaps, not altogether clear, as there could be no daughters, and the sons who might afterwards be born would have been mere volunteers. Consider Wollaston v. Tribe, L. R., 9 Eq. 44, and cases there cited, and Ee Cullin, 14 Ir. Ch. Rep. 506. Limitations or trusts for the benefit of the next of kin of the settlor are voluntary. In Hastings v. Orde (11 Sim. 205), the wife's property was settled on her for life, then on her husband, with remainder to their children, with ultimate remainder as she should appoint by will, in default for her next of kin. There were no children. The marriage was dissolved, and the husband released his interest. It was held that the wife was entitled to a transfer of the fund. See Cramer v. Moore, 3 Sm. & G. 141. Personal estate. Ultimate Limitations. '\ Where the ultimate limitation is of real estate, it is usually to the heirs or right heirs of the settlor. Where a lady, who was seised in fee ex parte niaterna, married, and the ultimate limitation was to the person who would have been entitled in case she had died intestate and without having been married, her heir ex parte materna was held entitled. Heywood v. Heywood, 34 Bea. 317. The ordinary ultimate limitation of personal estate, after the determination of the life interests and default on failure of the children or issue of the marriage, is, if belonging to the husband, to him absolutely; if belonging to the wife, to her absolutely, if she survive her husband ; if she predecease him, then as she shall appoint ; in default of appointment, to the persons who would be her next of kin under the Ultimate Limitations. '^601 Statute of Distributions, if slie had died intestate and witli- out having been married, oi", as it is sometimes worded, "unmarried." The word unmarried, in such case, means wora"unmar- without a husband at the time of her death. Clarke v. ^''^' Colls, 9 H. L. C. 601 ; see Pratt v. Matthew, 8 D., M. & G. 522; Heywood v. Heywood, 29 Bea. 9; Mitchell v. Colls, Johns. 674. In such cases, and under such or similar limita- tion, the children of the marriage will be entitled as next of kin, if not otherwise expressly provided for, the object being to exclude the husband. In re Norman, 3 D., M. & G-. 965 ; Pratt V. Matthews, sup. Under an ultimate limitation to the legal representatives of the wife in a due course of admi- nistration, her next of kin will be entitled as if she had died intestate and unmarried. Briggs v. Upton, 6 W. N. 201. If the wife has no children, and, being illegitimate, no so next of kin next of kin, the husband will be entitled as her adminis- °'^''"=- trator. Hawkins v. Hawkins, 7 Sim. 173. Under trusts wife when abso- for the wife, after the death of the husband, absolutely, if i^t^'y «n""«i- she survive, if the husband survive, as she shall appoint, and in default of appointment for her next of kin, she will be absolutely entitled if the marriage is dissolved through the husband's misconduct. Jessop v. Blake, 3 Giff. 639 ; see Swift V. Wenman, L. E., 10 Eq. 15. When the next of kin are entitled, it is sometimes a question at what time the class is to be ascertained. Where the trust (after the husband's decease and failure Next of kin, at of issue) was for such persons (other than the husband) as tato^'"""^""" should then be the next of kin of the wife under the statute, and the wife predeceased the husband without issue, the next of kin living at her death, not at the husband's death, were held to be entitled. Wheeler v. Adams, 17 Bea. 417; see Gundry v. Pinniger, 14 Bea. 94. But where the trust is for the persons who, under the Statute of Distributions, would be entitled to the personal estate of the wife, in case she had survived her husband, and had died possessed of the same, intestate, the class is ascertained at the death of the husband, if he is the survivor. Finder v. Finder, 28 Bea. 44; see Chalmers v. North, ib. 175. Under a hmitation of personal estate expressly to the heir Limitation to of a person, the heir and not the next of kin will be entitled. ''^*" Hamilton v. Mills, 29 Bea. 193. 602 Marriage Settlements. CHAPTEE X. OP COVENANTS IN SETTLEMENTS. Sec. 1. — To settle future-acquired Property. Who hoimd iy Covenant . . 602 Covenant in general Hnds Covenantor only 602 Separate Estate of Wife, rvhen not iound . . 602 All neeessa/i-y Parties to assure . . . . 603 Covenant hy Hushand and Wife .. . . 603 Agreement and Decla- ration .. .. 603 Followed T)y Covenant iy one only . . . . 603 WJien Wife bound as to separate Estate . . 603 What Property ioimd in general . . .. . . 603 As to Wife's Interests — Vested — Contingent — Reversio7iary . . 603 What Property hound in general— txiO-MainiiA.. Property falling into Possession during Co- verture After Coverture Property given to Hus- band and Wife as Joint Tenants Value, mhen and horn to be ascertained . . Duties of Trustees lAfe Interests . . Restricted Covenants Estate Tail Property Purchased . . Enjoyment of Property in Specie Statute of Limitations Bankruptcy Act , . 604 604 605 605 605 605 605 605 606 606 606 606 Who hound by Covenant.^ In this chapter some of the principal covenants usually contained in marriage settlements will be considered. With respect to future property it may be observed, that what purports to be an actual assignment of it can only operate as an agreement to assign, but as such it will be binding in equity. Ewart v. Ewart, 1 1 Ha. 276 ; Ramsden v. Smith, 2 Drew. 298, 306. A covenant or agreement to settle after-acquired property, exceeding a particular amount in value, is common in settlements. Where it is a covenant, it will, as a rule, be binding only on the covenantor. Thus, if the husband alone covenants to con- vey or settle, it is not binding on the wife in respect of her reversionary interests not reduced into possession during the coverture (Kenrick v. Reid, 1 Jur., N. S. 897; Cramer v. Moore, 3 Sm. & G. 141; Young v. Smith, 11 Jur., N. S. Separate estate of 963); nor in respect of her separate estate {Douglas v. Con- '^*' greve, 1 Keen, 410 ; see Travers v. Travers, 2 Bea. 179 ; Thornton v. Bright, 2 M. & C. 230, 255 ; Whitgreave v. Whitgreave, 33 Bea. 533 ; Re Mainwaring's Settlement, L. E., 2 Eq. 487), even where the form of the covenant is that the husband will convey or concur with the wife in Covenant binds covenantor only; in general. Who bound hy Covenant. 603 conveying. Ramsden v. Smith, 2 Drew. 298; Campbell v. Bainbridge, L. R., 6 Eq. 269, infra. But a covenant by the husband alone that all necessary aii necessary par parties would convey was held bio ding on the wife sur- ties to assure, viving, in respect of her reversionary personal estate accru- ing, but not reduced into possession, during the coverture. Butcher v. Butcher, 14 Bea. 222 ; and see Stevens v. Van Voorst, 17 Bea. 305. As a general rule, however, the cove- nantor only is bound. It is important, therefore, to ascer- tain who does covenant. When the covenant is by the husband and wife, property By husband ana given to her separate use, and within the covenant, will be '""^• bound by it. Willoughby v. Middleton, 2 J. & H. 344 ; Coventry v. Coventry, 32 Bea. 612. When the covenant is Agreement and in the form, which is not uncommon, of an agreement and iis'^''"'»'tion. declaration " that it is hereby agreed and declared," this shows what all parties intend to be done, and operates as an agreement by any and every party by whom the act is to be done. See Ramsden v. Smith, 2 Drew. 307, 308. But if Fouowea by cove this recital is followed by a covenant by one party only, it "n"' ''^ """ '"'"^ is, in general, binding only on such party, the recital being qualified by the covenant. lb.; Hammond \. Hammond, 19 Bea. 29; Grey v. Stuart, 2 Giff. 398; Voung v. Smith, L. R., 1 Eq. 180. Where it was declared, and the husband covenanted, that when wite property coming to or vesting in his wife, or in him in her separat?i°tate. right, at law or in equity, should be assured by him and his wife, it was held that the covenant bound property given to the wife's separate use, upon the ground that the wife was as much bound as the husband; while in Ramsden v. Smith (2 Drew. 298) the husband alone was bound. Campbell v. Bainbridge,'L.'R.,6^c{.269; see Willoughby y. Middleton, 2 J. & H. 344. Covenants of this nature by the husband are vaiia against valid against his assignees. Hardey v. Green, 12 Bea. 182. ^^f^^o"' What Property bound in general.^ A covenant to settle As to wUe's in- all the estate or personal estate to which the wife, or the cmSngentTor're- husband in her right, should at any time become entitled to versionary.' {Otter V. Melvill, 2 De G. & Sm. 257; HoareY. Hornby, 2 Y. C. C. C. 121), or possessed of or entitled to {Wilton v. Colvin, 3 Drew. 617; ArcherY. Kelly, 1 Dr. & Sm. 300 ; Re Browne's Will, L. R., 7 Eq. 231), or which should descend or devolve to or vest in the intended wife, or husband in her right {Churchill v. Shepherd, 33 Bea. 107 ; see Re Wynd- ham's Trusts, L. R., 1 Eq. 290), does not apply to property in which she has a vested interest at the time of the mar- 604 Marriage Settlements. Subject to life interests. Contingent inte- Property falling into possession during coverture. After coverture. riage, even in some cases, although subject to a subsisting life interest {Re Peddler's Settlement Trusts, L. R., 10 Eq. 585); oomp. Blythe v. Granville, 13 Sim. 190; James y. Durant, 2 Bea. 177; Spring v. Pride, lOJur., N. S. 646. Cons., as to Blythe v. Granville, the observations in Wilton V. Colvin, 3 Drew. 625. As to the words, property which shall " come to" the wife, see Ex parte Blake, 16 Bea. 463, 470. The authorities are not altogether uniform upon the question whether a vested remainder, subject only to a sub- sisting life or other interest, is bound by such a covenant or not ; the later authorities would seem to show that such a remainder would not be, unless special controlling words are found in the covenant. Thus, in some cases, remainders vested in title at the time of the marriage, and vesting in possession afterwards, may be comprised under interests which shall " come to or devolve upon" the wife or husband in her right. Id. ; Spring v. Pride, 10 Jur., N. S. 646. Covenants of this description will also in general comprise interests which are contingent at the time of the settle- ment, but afterwards fall into possession. Brooks v. Keith, 1 Dr. & Sm. 462. So such covenants will comprise pro- perty, the right to which is contingent during the wife's lifetime, but becomes vested after her death, the husband being the survivor. Grafftey v. Humpage, 1 Bea. 46 ; Hughes v. Young, 9 Jur., N. S. 376 ; oomp. Re Wyndham's Trusts, L. E., 1 Eq. 290. A covenant by husband and wife to settle property to which either in her right should during the coverture be or become entitled does not extend to a legacy contingent upon the wife surviving her father, and which, by reason of her husband predeceasing her father, does not fall into possession during the coverture. Atcherley v. Du Moulin, 2 K. & J. 186; see Bering v. Kynaston, L. R., 6 Eq. 210; comp. Dickinson v. Dillwyn, L. R., 8 Eq. 546 ; Carter v. Carter, ib. 551, infra. Neither wiU a cove- nant of this description comprise a legacy given to the wife by her father, where she predeceases him leaving issue, in which case the legacy will, by the effect of the 1 Vict. c. 26, s. 33, not lapse, but it does not devolve during the coverture within the meaning of the covenant. Pearce v. Graham, 9 Jur., N. S. 568. But property accruing after the determi- nation of the coverture may be bound if an intention to that effect can be collected from the language of the covenant. Prebble v. Boghurst, 1 Sw. 309 ; Stevens v. Van Voorst, 17 Bea. 305; Re Hughes' Trusts, 4 GiflT. 432; Re Hill, 9 Jur., N. S. 942. In Dickinson v. Dillwyn, L. R., 8 Eq. 546, and Carter v Carter, ib. 551, the covenant was held not to comprise property bequeathed to the wife by her Tfliat Property bound in general. 605 husband. Covenants by husband and wife to settle property Hnsbana ana wHo to which either in her right should become entitled during i"'"* '«"''"'»• the coverture (except separate estate and life interests) will not apply to property vesting in the husband and wife as join tenants. Edge v. Addison, 1 H. & M. 781. The covenant does not usually apply to property under a vaine, when ana particular value, which is sometimes fixed at 2001., some- uuled" '"""''"" times at 500Z. See 3 Dav. Pr. Conv. 148. In Re Mac- kenzie's Settlement (L. R., 2 Ch. 345), it was held that the meaning of the word " value," as applied to an interest rever- sionary at the time of the settlement, was not its then selling value, but its value when the fund fell in ; and (by Lord Cairns, L. J.) that two separate interests in the same fund Tinder distinct titles, for instance, in the wife's own right and as next of kin, were to be added together, and if so added they amounted to the stipulated sum, it would be within the covenant. But it is otherwise where the funds are distinct and the titles different, and the covenant is to settle property of a particular value, coming at any time, for this means from one and the same source. Re Hooper, 1 1 Jur., N. S. 479. In Bower v. Smith (L. R., 11 Eq. 279), the covenant applied to property of the value of 500Z. to which the wife might become entitled. A much larger sum was bequeathed as she should appoint. She appointed to her own separate use, by several deeds (some executed on the same day), sums of money, each less than the covenanted sum, the aggregate of the sums so appointed amounting to the sum bequeathed. It was held that none of the sums so appointed were within the covenant. As to deducting succession or other duties DeaacUons from, and costs, see Re Mackenzie's Settlement, sup. As to the duty of trustees to see that the covenant has Duties of trastees. been duly performed, see Ex parte Greaves, 2 Jur., N. S. 651, 654. Life interests or income (unless laid up as capital) are not me interests. within covenants to settle future-acquired property (Lewis V. Madocks, 17 Ves. 48 ; see Townshend v. Harrowby, 4 Jur., N. S. 353 ; St. Aubyn v. Humphreys, 22 Bea. 175); nor property over which the wife has a general power of ap- pointment. Townsend v. Harrowby, sup. Restricted Covenants.] Where the property is described Estate tail, in the covenant in a limited sense or by a particular title, for example, as property to which the wife is entitled as tenant in tail in remainder, or the like, this description will not be enlarged so as to include or affect the same property if it comes by another title, as by descent. Tayleur v. Dicken- son, 1 Russ. 521 ; Ibbetson v. Grote, 25 Bea. 17; see Osborne 606 Marriage Settlements. Property pur- chased. V. Smith, 4 Ir. Ch. Rep. 58; Ex parte Stephenson, 3 D., M. & Gr. 969; Re NeaVs Trusts, 4 Jur., N. S. 6. A covenant to settle property accruing upon the death or by the dis- position of any person or persons whomsoever, applies to property vested in the covenantor as tenant in tail, but subject to an appointment by A. (which was not exercised), and of which property, after the death of A., the covenantor executed a disentailing deed. Maclurcan v. Lane, 5 Jur., N. S. 56. A covenant to settle property coming to the wife by de- scent, devise, limitation, gift, or otherwise, does not extend to property purchased by her. Hughes v. Jones, 32 L. J., Ch. 487. Enjoyment of property in specie. Enjoyment of Property in Specie.} The tenants for life will be entitled to the enjoyment in specie of wasting pro- perty, for instance, chattels real, bound by the covenant, where there is no trust for conversion. Milford v. Peile, 17 Bea. 602. If there is a trust for conversion, but it is not to be made except at the request of the husband and wife, or the survivor, the trustees cannot convert, except on re- quest. Hope V. Hope, 1 Jur., N. S. 770. In this case Kindersley, V.-C, observed, that he was not aware of any case in which the principle of Howe v. Ld. Dartmouth, 7 Ves. 137 {ante, p. 114) had been applied to a settlement, which was a contract between the parties. statute of Limi- tations. Bankruptcy of covenantor. Statute of Limitations. \ As a general rule, if the cove- nantor has a certain time to perform his covenant, the breach of it is at the expiration of that time, and then time begins to run. See Ex parte Evans, 2 D., M. & G. 948. But where the covenant is to be performed immediately, it runs from the time of the execution of the settlement. Spicker- nell V. Hotham, Kay, 669. Bankruptcy Act.'] By the 32 & 33 Vict. c. 71 (Bank- ruptcy Act, 1869), any covenant or contract by a trader in consideration of marriage, for the future settlement, uj)on or for his wife or children, of any money or property wherein he had not at the date of his marriage any estate or interest, whether vested or contingent, in possession or remainder, and not being money or property of or in right of his wife, shall, upon his becoming bankrupt before such property or money has been actually transferred or paid pursuant to such contract or covenant, be void against his trustee appointed under this act. Settlement shall for the purposes of this sec- tion include any conveyance or transfer of property (s. 91). Covenant to settle, ^c. Lands. 607 Sec. 2. — Covenant to settle or purchase Lands. To settle Specific Property . 607 IsaLienonthe Property 607 Covenant ty Tenant in Tail 607 On, Request . . . . 607 To settle or pay a Sum of Money .. ..607 T» purchase, convey, settle or charge .. .. .. 608 No Lien on particular Lands .. ..608 To charge after-ac- guired Estate . . 608 Time of Performance . . 608 To purchase, convey, settle or cliarge — continued. Intention to pii/rchase Parol Evidence of In- tention Presumption of Inten- tion .. Purchase iy Trustees . . Lands devolving on Cove- nantee a Satisfaction 609 Property of specified Description .. .. 609 Breach of Covenant . . 609 Damages .. . . 609 608 608 608 609 To settle Specific Property/.] A covenant to settle spe- is alien on the cific lands belonging to the covenantor is a lien upon such p^p^'J'- lands, and is not affected by his debts. Fremoult v. Dedire, 1 P. W. 429 ; see Finch v. Ld. Winchelsea, ib. 277. So, a covenant that the rents of an estate shall be applied in a particular vsray {Legard v. Hodges, 3 B. C. C. 531; S. C, 4 B. C. C. 421), or that an annuity shall be payable out of them {Ravenshaw v. Hollier, 7 Sim. 3), is not a mere per- sonal covenant, but creates an actual lien on the land. For an agreement relative to any specific property binds the property itself. Per Ld. Thurlow, 3 B. C. C. 538. The lien prevails against a subsequent purchaser or mortgagee with notice, though he may have the legal estate. Davies V. Davies, 4 Bea. 54. But a covenant by a tenant in tail in respect of the en- covenant by tailed property can only be enforced against him, not against *«™'" " '*"• the issue in tail or remainderman. Powell v. Powell, Pr. Ch. 278. This was under the old law, and the 3 & 4 Will. 4, c. 74, makes no difference in this respect (ante, p. 197). When the property bound by the covenant is afterwards substituted pro- disposed of, the lien will, as a rule, attach upon that pro- p^'''''- perty which is substituted for it. Thus a covenant to settle estate A., which is afterwards exchanged for estate B. and a sum of money, binds B., and the amount of the money paid is a specialty debt under ^the covenant. Powdrell v. Jones, 2 Urn. & Giff. 335. A covenant to settle at the request of trustees, attaches To settle on re- on the property subject to the covenant, although no request ''"^'''' has been made. Maelurcan v. Lane, 5 Jur., N. S. 56. A covenant in the alternative, to settle an estate or pay a covenant to settle sum of money, does not create a charge on the covenantor's J^oney" '""" °' 608 Marriage Settlements. estate, for the covenantor has an option. Ravenshaw v. Hollier, 7 Sim. 3. As to damages for breach of covenant, see post, p. 609. No lien on par- ticular lands. To charge after- acquired property. Time of perform- ance. Intention to pur- chase. Whether parol evidence admis- sible to show in- tention. Presumption of intention. To purcliase, convey, settle, or charge.'^ Where the covenant implies performance at a future time, as that the covenantor will purchase and settle, or convey and settle, or charge lands generally, without specifying any in particular, as a rule it will not be a lien upon the estate of the cove- nantor at the time of the covenant being entered into. Mornington v. Keane, 2 De G. & J. 292, explaining Boundell v. Breary, 2 Ver. 482. In Fremoult v. Dedire (IP. W. 429), there were two covenants, one to settle spe- cific lands which was held to be a lien on them, the other to purchase and settle generally, and the latter covenant was held not to be a lien on any lands in particular. A covenant to charge an after-acquired estate may, how- ever, in some cases attach on one which the covenantor has purchased, but which has not been conveyed to him at the time of his entering into the covenant, or which even is never conveyed to him, but to a sub-purchaser from him. Warde v. Warde, 16 Bea, 103. But a covenant to convey lands generally will not, as a rule, bind lands to which the covenantor is equitably entitled at the time of his entering into the covenant. Gardner v. M. of Townshend, G. Coop. 301. It is not necessary that the covenant should be wholly performed at once. Part of the fund may be invested at one time, part at another. Lechmere v. Ld. Carlisle, 3 P.W. 228. The intention to purchase in discharge of the covenant may be proved by parol evidence {Deacon v. Smith, 3 Atk. 323; Lench v. Trench, 10 Ves. 511, 517; see Lane v. Dighton, Amb. 409), although it was said in Sowden v. Sowden (1 B. C. C. 583), that parol evidence was not admis- sible to show that the covenantor, in purchasing, intended to perform his covenant. And where a person has cove- nanted to convey and settle lands (Deacon v. Smith, 3 Atk. 323), or to settle lands ( Toohe v. Hastings, 2 Ver. 97), or even to pay a sum of money to trustees to be laid out in lands (Sowden v. Sowden, 1 B. C. C. 582), and after- wards buys an estate, though he does not settle it, a pre- sumption will arise that he purchased with the intention of performing his covenant, and the estate will be bound accordingly. See Mathias v. Mathias, 3 Sm. & G. 552; Mornington v. Keane, 2 De G. & J. 292. But the presump- tion may be rebutted, as by the covenantor afterwards dis- posing of the lands. 3 Atk. 327. Covenant to settle, S(C. Lands. 609 But where there is no covenant to purchase and settle, the Not unless cove- presumption will not arise as in the case where the purchase purchase?"" is to be made by a covenantor, or he is to pay the money to trustees, to be applied in the purchase. Thus, if the trustees are to purchase, and the husband obtains possession of the trust fund, and afterwards purchases an estate, there will not in this case be a lien upon the lands {Lench v. Lench, 10 Ves. 511), unless there is evidence that he bought with the intention of performing the trust and settling the estate ( JVilson V. Foreman, 2 Dick. 593, as corrected in Lench v. Lench, 10 Ves. 511, 520), or unless the money can be fol- lowed and traced as having been applied in the purchase of the land. lb.; .see I^ewis v. Madocks, 17 Ves. 48, 58. When trustees are bound to lay out money in the pur- Purcimse by trus- chase of lands and they purchase lands, a presumption will '''**'■ arise that the purchase was in performance of the obligation. Mathias v. Mathias, 3 Sm. & G. 552; Price v. Blakemore, 6 Bea. 507 ; see French v. Harrison, 17 Sim. 111. If the husband advances a sum to make up the full purchase-money of an estate which is conveyed to the trustees of the settle- ment, it will be presumed, in the absence of evidence to the contrary, that he intended it as a benefit and advancement for the parties entitled under the settlement. Ouseley v. Anstruther, 10 Bea. 164. Where the covenantor does not settle the purchased lands Lands devolving but suffers them to descend, or devises them, to the party KtUs'iactron™ " entitled under the covenant, they will be taken to be in satisfaction of the covenant ( Wilson v. Piggott, 2 Ves. 356; as to copyholds, see A.-G. v. JVhorwood, 1 Ves. sen. 534, 541), or satisfaction ^ro tanto. Lechmere v. Ld. Carlisle, 3 P. W. 228. The property purchased must be of the kind and tenure Property must be mentioned in the covenant, or it will not be considered as tionedin cove- performed. Thus, a purchase of copyholds, or the moiety nant. of a house, or leaseholds for lives, reversions, or the like, will be no performance of a covenant to purchase freeholds or estates in fee. Pinnel v. Hallett, Amb. 101; Lechmere V. Ld. Carlisle, 3 P. W. 225. The true measure of damage occasioned by nonperform- Breach of cove- ance of the covenant is the present value of an estate, """ ' ^ of the like description and rental as that which ought to have been purchased or settled. Xy. Huffield v. Ld. Suf- field, 3 Mer. 699. The damages recovered will, it seems, where. be ordered to be laid out in land, if the covenant be to pur- chase lands. So if it be to settle a particular estate when there are several persons who would take interests in the lands if purchased, but if in such case there is only one 610 Marriage Settlements. person who would be absolutely entitled to the land in fee, or perhaps in tail (see tit. "Election," ante, p. 156), the damages will be paid to him as money, or if dead, to his personal representatives, in the case of an estate in fee covenanted to be settled. Wade v. Paget, 1 B. C. C. 364 ; for the j udgment, 1 Cox, 74. Covenant to leave wife a sum of money. To leave all the covenantor's estate. Sec. 3. — Covenants to leave Property. To leave Wife a Sum of Money 610 To leave all Covenantor's Estate 610 To leave a Specific Sum . . 611 To leave equal Shares .. 611 To pay a Smn of Money .. 611 Effect of Death of Parties interested, under the Co- venant 611 Covenants to leave a wife a sum of money, or real or per- sonal estate, will be considered as wholly performed in equity if the husband dies intestate and the wife receives a share under the Statute of Distributions equal to the money or value of the property covenanted to be left; and per- formed pro tanto if the share is less than such money or value. Blandy v. Widmore, 1 P. W. 324; Lee v. D'Aranda, 3 Atk. 419; Garthshore v. Chalie, lOVes. 1; Goldsmid y. Goldsmid, 1 Sw. 211. As to the distinction between per- formance and satisfaction in such cases, see Barret v. Beckford, 1 Ves. sen. 519, and 1 P. W. 324, n. (1). Where the covenant is to leave a specific sum, and to pay an an- nuity to the wife after the covenantor's decease ( Couch v. Stratton, 4 Ves. 391 ; Salisbury v. Salisbury, 6 Ha. 526), or to pay a sum of money in the lifetime of the covenantor {Lang v. Lang, 8 Sim. 451), it will not be considered as performed, by the wife receiving a share under the statute. A covenant to give or leave all the covenantor's estate to his children, only affects real and personal estate of which he is seised or possessed at the time of his death. Needham V. Smith, 4 Russ. 318 ; seeCochran v. Graham, 19 Ves. 66. Comp. Lewis v. Madocks, 8 Ves. 150 ; 17 Ves. 48, where the covenant bound all the property of which the covenantor became possessed during the coverture. A covenant to leave will not deprive the covenantor of the right of unlimited expense, or of the power of giving away his property bona fide, but any disposition for the purpose of defeating the covenant will be a fraud upon it and void. Jones v. Martin, 6 B. P. C. 437; Gregor v. Kemp, 3 Sw. 404, n.; Randall V. Willis, 5 Ves. 262. And a disposition which is in effect testamentary of the whole property, with a reservation of a Covenant to leave Property. 61 1 life interest to the covenantor, will be a fraud on the co- venant. Fortescue v. Hennah, 19 Ves. 67. A covenant to leave a specific sum of money creates a To leave a spccmc specialty debt against the estate of the covenantor (GraAoiOT """■ v. Wickham, 1 D., J. & S. 474), and attaches on stock or property proved to have been purchased with the money. Liebman v. Harcourt, 2 Mer. 513. A covenant to leave a particular proportion of property means, in general, in value, not of every item of property in specie. Bell v. Clarke, 25 Bea. 437. See further as to such covenants, Davenport v. Hinchcliffe, 1 J. & H. 713. Where there is a covenant to To leave equal leave or settle equal shares on children or others, an ad- shares. vancement to one is part of his share, and must be taken into account in estimating the shares of the others. Willis V. Black, 4 Russ. 170; see Eardley v. Owen, 10 Bea. 572. When the husband has covenanted to pay a sum of money To pay a sum ot to the trustees of the settlement, and he becomes entitled to ™"'"=y- part of the settled trust funds or the dividends of them, the trustees are entitled to retain such part until his covenant is satisfied. Priddy v. Rose, 3 Mer. 86 ; Burridge v. Row, 1 Y. C. C. C. 183, 583. Sometimes the person who is to be benefited by the per- Effect of death of formance of the covenant dies in the lifetime of the cove- '""'"'=^ interesien , ... . /Y. 1 - 1 under coveniiiit. nantor, thus raising the question what enect this has upon the covenant. In Jones v. How (7 Hare, 267), the cove- nantor covenanted to leave one of his daughters an equal share with his other children. The daughter died in her father's lifetime without issue. The covenantor made no will in performance of his covenant, and it was held that the daughter having died in his lifetime, he was not bound to do so, and there was no breach of covenant. Qy., in such case, if the daughter had died leaving issue. See the judg- ment, p. 275, and 1 Vict. c. 26, s. 33. In Re Brookman's Trusts (L. R., 5 Ch. 182), the father covenanted by his daughter's settlement that if his daughter should survive him or leave any children or issue, he would devise or settle a particular share upon the trusts of the settlement, which gave in effect interests to the daughter's children at twenty- oue, subject to their parents' life interests. One of such children only attained twenty-one, and all of them died in the lifetime of their mother and of the covenantor, who died having made a will in conformity with the strict terms of the covenant, but without having made any provision by reason of the death of his grandchild. It was held, that he was not 'bound to do so, and had duly performed his cove- nant, having regard to the events which had happened. R R 2 612 Marriage Settlements. Sec. 4. — Covenants as to Policies of Assurance. Must be certain .. .. 612 Wliere Policy may be sold . 612 Policy dropped, tut remved Bonuses .. • • . . 612 Covenantor committing Sui- Proof in Bankruptcy .. 612 cide .. ..' ..612 Must be cevtain. Keeping up poli- cies. Policy dropped, but revived. Party paying pre- miums has lien on policy. Covenantor com- mitting suicide. Wliere policy may be sold. Where bonuses follow the policy. Proof in bank- ruptcy. The covenant, usually on the part of the husband, to effect a policy of assurance or duly to keep it on foot, is a very common one in settlements. The covenant must be certain as to the amount and other particulars, or it will not be en- forced in equity. Tottenham v. Townsend, 5 Ir. Ch. Rep. 225. In general the trustees of the settlement are expressly exonerated from all responsibility in consequence of the covenant not being duly performed. Trustees are not liable by reason of a life policy not being kept up by the husband, the covenantor, he being in insolvent circumstances and the trustees having no funds. Hohday v. Peters, 28 Bea. 603. In Shearman v. McGregor (11 Ha. 106), where a policy was allowed to drop, but was afterwards revived, the court, tinder the circumstances of the case, restrained an action on the covenant, the covenantor paying the costs. If the wife or a trustee of the settlement pays the pre- miums, the party so paying them has a hen on the policy. Burridge v. Roiv, 1 Y. C. C. C. 183. A covenant to do all things necessary to keep up the policy is not equivalent to a covenant to do no act whereby it shall become void, and is not broken by the covenantor committing suicide, whereby the policy becomes forfeited. Dormay v. Borrodaile, 10 Bea. 335; 5 Com. B. 380. The court will authorize the policy to be sold or sur- rendered, and the proceeds paid into court and accumulated, if the covenantor is unable to pay the premiums. Hill v. Trenery, 23 Bea. 16; Beresford \. Beresford, ib. 292. The bonuses will be applicable for the same purposes as the sum assured by the policy which is settled, even without an express provision to that effect. Courtney v. Ferrers, 1 Sim. 137; Parkes v. Bott, 9 Sim. 388. But under the co- venant, if it be merely to keep up a policy for a specific sum, no mention being made of bonuses, if the rules of the office permit, the covenantor has an option to have the bonuses applied by way of reduction of premiums. Gilly v. Burley, 22 Bea. 619 ; see Lackersteen v. Lackersteen, 6 Jur., N. S. 1111. Where the covenantor became bankrupt, the sum required to keep a policy during his life was not proveable formerly Construction of Settlements. 613 under his bankruptcy. Re Whitmore, 3 De G. & S. 565 ; fVarburg v. Tucker, E., B. & E. 914. Under the 24 & 25 Vict. c. 134, s. 154, the court had power to set a value upon the interest of the covenantee, vs^hich value was proveable. See now Bankruptcy Act, 1869, 32 & 33 Vict. c. 71, s. 31. CHAPTER XI. CONSTEtrCTION OF SETTLEMENTS. IS^ot construed hj Acts . . 613 To effectuate Intention .. 613 Words excluding Issue . . 613 Precise Language must pre- vail .. .. .. 614 jS'o Trusts declared . . 614 Ambiguous Trusts .. .. 614 Inconsistent Clauses . . 614 "And" read "or" .. ..615 Secital and Operative Part 615 Variance bettveen Pecital and Operative Part . . 015 To effectuate iu- teution. As a general rule, the acts of parties cannot be relied upon to Not construed by construe the language of a settlement. Bmjnham v. Guy's '^'^ °' '""'"''^• Hospital, 3 Ves. 295. Equity will endeavour to effectuate the intention, as col- lected from the whole instrument, and will to this end disre- gard particular expressions inconsistent with such intention. Arundell v. Arundell, 1 M. & K. 316. Thus where, by the terms of the settlement, if the wife died in her husband's lifetime, he was to receive the rents for life of an estate to which she was only contingently entitled, provided the wife should become entitled thereto, but not otherwise : he was held entitled, though the wife died before she became entitled in possession to the property, which after her death devolved upon her heir subject to the settlement. Wallace v. Wal- lace, 2 Dr. & War. 452. And where a limitation purported to be contingent upon there being no issue of the marriage " living at the wife's death, she surviving her husband :" it was held, upon the intention as collected from the entire instrument, that the limitation did not take effect if she left issue, although she predeceased her husband. Smith v. Doolan, 2 J. & Lat. 747. So where there was a proviso that if the wife should die before her husband the trust fund should go to her brother and sister ; this was construed to mean if she should die without issue. Kentish v. Newman, 1 P. W. 234; Targus V. Puget, 2 Ves. sen. 194. But, as between the husband or wife, and issue, if no interest be given to the issue, none will be implied. Thus, where the wife's personalty was given to her in the event (which happened) of her surviving her hus- Words excluding issue. 614 Blarriage Settlements. Precise language must prevail. Xo trusts de- clared. Ambiguous trusts. Inconsistent clauses. band, her executors were held entitled to it at her death as against her children. Tringlev. Pringle, 22 Bea. 631. If a clause or limitation be clear and positive, it must, however absurd, prevail. But if a rational interpretation can be given consistent with the language used, the court will construe the instrument accordingly. Laird v. Tobin, 1 Moll. 543; Cholmondeley v. Clinton, 2 J. & W. 81. It sometimes happens that no trusts are declared of pro- perty in the particular events which have happened. In such oases, of course, the court must endeavour to ascertain the intention of the parties, and eifectuate it accordingly. Where there is no express provision with respect to the destination or application of a fund, it will, in general, de- volve according to law. Thus, in a case in which no trusts of funds (of the intended wife) were declared during the coverture, the husband was held td be entitled during this period. Ball r. Montgomery, 2YB8.i\x!x. 19\, \96. Under a trust for the wife's separate use during the coverture, if she should die in her husband's lifetime, for him, for life, and after the death of the survivor for the issue of the mar- riage ; the wife, who survived her husband, was held en- titled for her life. Tunstall v. Trappes, 3 Sim. 312. This in effect was a trust by implication in the events which hap- pened. In Smith v. King (1 Euss. 363), the trusts of divi- dends of stock were for the wife's separate use. There was no other limitation. It was held, that the wife was entitled to the- capital as well as to the life interest. Where a father covenanted on his daughter's marriage to pay 500Z., the in- terest to be paid to her for life, the principal, after her death and that of her husband, to be held for the issue of the mar- riage, and there was no issue, the husband being dead, the wife was held entitled to the capital. Wood v. Dyas, LI. & Gr. t. Sug. 177; see Langham v. Nenny, 3 Ves. 467. In Wilson V. Paul (7 Sim. 620), property consisting of leaseholds, and money to be invested on the usual securities, was settled in trust for the husband (the settlor) for life, after his death, as to one moiety of the leaseholds and securities, for the wife for life, and as to the other moiety of the leaseholds and securities, after the husband's death, and the whole of the securities (not mentioning the leaseholds), after the wife's death, in trust for the children. The wife died in her hus- band's lifetime. It was held that there was a resulting trust as to the leaseholds for the husband. Of two clauses clearly inconsistent with each other, the first in general prevails, though the contrary is the rule in the ease of a will. See Ulrich v. Litchfield, 2 Atk. 375 ; Wykham v. Wykham, 18 Ves. 421; Sherratt v. Bentley, 2 M. & K. 149, 161. Thus, where by one clause of marriage Construction of Settlements. 615 articles it was agreed that the wife should have a life interest in a fund, and by another that the income of the fund should in all cases belong to the husband, it was held that the clauses were inconsistent, and that the husband's life interest was postponed until after the death of his wife. Byam v. Byam, 19 Bea. 58. But the court reluctantly rejects one of two apparently inconsistent clauses, it endeavours to re- concile them. As in wills {post, tit. " Wills"), " and" will " And" read "or." sometimes be construed " or." Burleigh v. Pearson, 1 Ves. sen. 281. If the operative part of a deed be doubtfully expressed, Variance between the recital may be referred to as a key to the intention; but Jative pM-t."''^ where the operative part is clear, it cannot be controlled by the recital. Bailey v. Lloyd, 5 Buss. 330, 344; see Alex- ander V. Crosbie, LI. & G-. t. Sug. 145. But the recital may in many instances qualify the operative part, or explain the sense in which it is to be understood {Cope v. Cope, 15 Sim. 118); though the plain effect of the latter cannot be cut down by the former. Holliday v. Overton, 14 Bea. 467; see S. C. 15 Bea. 480. And where a recital is intro- ductory to a covenant, whether the recital be larger than the covenant, or the covenant than the recital, effect will be given to that language which is the largest and widest in its scope. Maclurcan v. Lane, 5 Jut., N. S. 56, 59. CHAPTEE XII. REFORMING AND SETTING ASIDE SETTLEMENTS. I the Court of Chancery. . Against Volunteers . . When contrary to In- tention Delay in applying JSxecution of Settlement under Protest Evidence of Mistake . . Letters — Recitals — Pa- rol Evidence Contemporaneous What Mistakes may he rectified Not reformed to preju- dice of innocent In- cumbrancers • ' 615 615 616 616 616 616 616 616 616 616 By the Court of Chancery — continued. Mectification iy Decla- ration ,. ..617 Costs of .. . . 617 Wife's Adultery , . 617 By the Divorce Court .. 617 In what Cases .. ..617 Respondent Ahroad .. 617 There must be Children of the Marriage .. 617 Wife's Adultery .. 618 Husband's Adultery . . 618 At Instance of Guar- dian .. .. ..618 Costs of Alteration .. 618 By the Court of Chancery.'] The cases in which a mar- Against voiun- riage settlement will be set aside as against volunteers, at ''^'^- 616 Marriage Settlements. Contrary to in- tention. Delay. Execution under protest. Kvidence of mis- talte. Letters. Recitals. Parol evidence. Contemporaneous. What mistakes may be rectified. Not reformed to prejudice of in- cunibmucers igno- rant of it. the instance of a person who has unintentionally made an irrevocable settlement in their favour, have already been considered, ante, p. 599. But these are not the only cases in which equity will exercise its jurisdiction. Where there has been mistake, the settlement will be reformed, although parties claiming under it may be interested, and not mere volunteers. As to incumbrancers, see infra. A settlement which is contrary to the intention of the parties to it will be reformed in equity. Higginson v. Kelley, 1 Ba. & B. 252; Wright v. Goff, 22 Bea. 207. But not on a bill to set it aside intoto. JIartoppv.Hartopp,21'Beii. 259. Parties interested in reforming the settlement must not be guilty of laches in applying to the court {Bunbury v. Lloyd, 1 Jo. & L. 638, 654) ; and must not have executed it under protest that it is contrary to what has been agreed upon. Eaton v. Bennett, 34 Bea. 196. The evidence of mistake must be clear and unambiguous {M. of Breadalbane v. M. of Chandos, 2 M. 6 Cr. 711), and, as a rule, common to all parties. Wright v. Goff, 22 Bea. 207; E. Bradford v. E. Romney, 30 Bea. 431. The evidence on which it is sought to rectify the settle- ment may consist of letters {Barstow v. Kilvington, 5 Ves. 593; Torre v. Torre, 1 Sm. & G. 518), recitals {Payne v. Collier, 1 Ves. juu. 170), or parol evidence. Lackersteen V. Lackersteen, 6 Jur., N. S. 1111; Wilkinson v. Nelson, 7 Jur., N. S. 480; Tomlinson v. Leigh, 11 Jur., N. S. 962. But it should be contemporaneous with or anterior to the deed. E. Bradford v. E. Romney, 30 Bea. 431. And the question for the court is, what was the intention of the par- ties at the time when the settlement was executed. Wil- kinson V. Nelson, sup. Whether the court has power to rectify a settlement made out of the jurisdiction may be doubtful. Barber v. Barber, 29 L. J., Ch. 49. When the evidence is clear as to mistake, and the way in which it is to be rectified, the nature of the alteration to be made, does not seem material. Thus a term for securing younger children's portions by mistake placed after the limi- tations in tail to the first and other sons, will be made to precede such limitations. Uvedale v. Halfpenny, 2 P. W. 151. So a hotchpot clause will be inserted where neces- sary to effectuate the intention. Wilkinson v. Nelson, 7 Jur., N. S. 480. So the clause restraining anticipation will be struck out. Torre v. Torre, 1 Sm. & G. 518. As to blanks in a deed, see Fyfe v. Arbuthnot, 1 De G. & J. 406. The settlement will not be reformed to the prejudice of persons who have acted upon the faith of it. Thus, a set- tlement which contained no clause against anticipation was Reforming and setting aside Settlements. 617 not allowed to be reformed by inserting the clause where the interests of incumbrancers would thereby have been affected. Blachie v. Clarke, IS Bea. 595; see Jenkins v. Quinchant, 5 Ves. 596, n. (a), where the settlement was post-nuptial. The settlement will be reformed, no legal estates being Kectmcation by affected, by a declaration in the decree {Tebbitt^. Tebhitt, "e'^i'^ii"™- 1 De G-. & Sm. 506; see Hamil v. White, 3 Jo. & L. 695), or where words have been erroneously introduced, by striking them out and indorsing the decree. Stock v. Vining, 25 Bea. 235. Where no blame is imputable to any person, the costs are costs ot payable out of the settled funds. lb. In the preceding cases, mistake was the ground upon which the court proceeded ; and of course where there has been fraud, the court will also exercise its jurisdiction. But in equity, a marriage settlement cannot be set aside Effect m wue's or varied at the husband's instance, either on the ground "^"''"^'y- of the incontinence of the wife before marriage, or. of her subsequent adultery. Evans v. Carrington, 2 D., F. & J. 481; Merryweather v. Jones, 4 Giff. 509. Where the court has jurisdiction, after a dissolution of the marriage, to deal with the settled property, see Swift v. IVenman, L. R., 10 Eq. 15, ante, p. 601. And see infra, as to varrying settle- ments by the Divorce Court. Varying Settlements by the Divorce Court.'] By the 22 & in what cases. 23 Vict. c. 61, " The (Divorce) Court, after a final decree ol nullity of marriage or dissolution of marriage, may inquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders with reference to the application of the whole or a portion of the property settled, either for the benefit of the children of the marriage, or of their respective parents, as to the court shall seem fit" (s. 5). All deeds by which property is settled on a woman in her character as wife, and in which she is interested as a wife, come within the scope of this section, and the court has power to deal with them accordingly. Worsley v. fVorsley, L. E., 1 P. & D. 648. The petition for the divorce should contain a prayer as to the required alteration of the settlement. Gibbings v. Gibbings, 10 Jur., N. S. 1037. Where the respondent is abroad but has been duly served, Responaent an order varying the settlement may be made in her ab- "broad, sence. Lawrence v. Lawrence, 3 S. & T. 207. On this section it has been held that the court has no There must bo jurisdiction to make an order with reference to settled pro- Jna|?[al°"^''° 618 Marriage Settlements. Wife's adulteiy. Husband's adul- tery. At instance of guardian. Costs of altera- tion. perty, unless there are children of the marriage living at the time of the decree for the divorce being made absolute {Corrance v. Corrance, L. E., 1 P. & D. 495, Pigott, B., diss.), and at the time of the order being made. Graham V. Graham, ib. 711; see Birdy. Bird, ib. 231. The amount to be allowed under this section to the husband, wife, or chil- dren is in every case a matter in the discretion of the court. March V. March, L. R., 1 P. & D. 440. But in some cases the Court of Chancery has power to deal with the settled property where there are no children. Swift v. fVenman, L. E., 10 Eq. 15, ante, p. 601. After a decree for dissolution of marriage by reason of the wife's adultery, the court will make no order depriving the husband of any interest which he may take under the settlement. Thompson v. Thompson, 2 S. & T. 649 ; see Webster v. Webster, 3 S. & T. 106. The Divorce Court has jurisdiction in decreeing a divorce at the husband's suit to order the income of the wife's fortune settled to her sepa- rate use to be paid to him, as if the wife were dead. Pratt V. Jenner, Ex parte Jenner, L. E., 1 Ch. 493. On the other hand, where the decree is made at the suit of the wife, an order may be made depriving the husband of benefits under the settlement. Johnson v. Johnson, 31 L. J., Mat. Gas. 29. Where the property was settled by the wife's father, and she had committed adultery, the court "would not allow her life interest to be applied for the benefit of her husband, but exclusively for that of the children of the marriage. Paul v. Paul, L. E., 2 P. & D. 93. The Divorce Court will also vary the trusts of a settlement at the instance of a guardian of the children. Ling v. Ling, 4 S. & T. 99. This court has no authority to alter the destina- tion of dividends or other income due and payable before the date of its order. Paul v. Paul, L. E., 2 P. & D. 93. The costs of obtaining an alteration in the settlement fall on the co-respondent if condemned in the costs of the suit for dissolution. Gill v. Gill, 3 S. & T. 359. ( 619 ) MERGER. Ch. 1. — Merger of Estates and Interests, p. 619. Ch. 2. — Merger of Charges on Propertt, p. 621. CHAPTEE I. MERGER OF estates AND INTERESTS. Union of greater and lesser Estate Equitable and Legal Term and Fee Estates in sam,e Right One held as Executor 619 619 619 619 620 Husband and Wife . . 620 Terms in Terms .. . . 620 Estates Tail and Fee . . 620 Surrender or Merger of Leases 620 Where there are Sub-leases 620 Merger takes place where a greater and less estate meet in The union of a the same person without any intermediate estate. In such ^^^T ^""^ ''^*" cases the less ceases to exist, being merged in the greater, as if tenant for years acquires the fee, the term is merged. 2 Bl. 177. Every estate of freehold is, for the purposes of merger, greater than any term of years. See White v. Greenish, 11 C. B., N. S. 209, 233. Where an equitable EquitaWeand and a legal estate, equal and co-extensive, unite in the same '^^"'^ person, the former merges in the latter. Selby v. Alston, 3 Ves. 339. If a term and the fee, one legal, the other equitable, meet Term and fee. in the same person, the term will attend the inheritance. Capel V. Girdler, 9 Ves. 509. But if the owner of a bene- ficial term purchases the reversion in fee, and takes the con- veyance to a trustee declaring that there shall be no merger, the term will still subsist. Belaney v. Belaney, L. R., 2 Ch. 138; and see Tiffin v. Tiffin, 1 Ver. 1, ed. Raith. n. (1), where the prior cases on the subject of attendant terms are collected. The estates must, in general, be in the same right. Thus if a person has the fee in his own right, and a term as exe- Estates must be in same right. 620 Merger. Executor. Husband and ■wife. Terms of years in terms. Estates tail in freeliolds do not merge in tlie fee, secus in copy- hoids. cutor, there ■will be no merger, unless, it is said, ■where he takes one of the estates by his own act, as by purchase. Wms. Exors. 607, and the cases there cited. But even in this case there -would be no merger in equity. lb. 608 ; see Philips V. Philips, 1 P. W. 41. A term vested in the husband in his own right will not merge in an estate of freehold vested in him as tenant by the curtesy {Jones v. Davies, 7 H. & N. 507); and the wife's term will not, merely by the act of marriage, merge in the husband's reversionary interest. Ly. Piatt v. Sleap, Cro. Jac. 275. An estate for years will merge in a reversionary term of years, though the latter is of less duration. Hughes v. Ro- botham, Cro. Eliz. 393 ; Stephens v. Bridges, 6 Madd. 66. There is an exception to the general rule in the case of estates tail in freeholds, for these do not merge in the fee, this result being prevented by the opei'ation of the statute De donis. 2 Bl. Com. 177. Though a tenancy in tail changed into a determinable fee or an estate tail after possibility of issue extinct may merge. 3 Preston, Conv. 240, 3rd ed. And estates tail in copyholds will merge in the fee, as they are not within the statute {Parker v. Turner, 1 Ver. 458; Dunn v. Green, 3 P. W. 9), but not an equitable estate tail in the legal fee. Merest v. James, 6 Madd. 118. Sometimes the consequences of merger are prevented by statute. Thus formerly, if a lessee, who had granted sub- leases, surrendered his own lease to his reversioner, his o-wn estate being merged, there was no reversion on the sub- leases existing, and the rent as incident to such reversion On merger of leases ceased. Webb V. Russell, 3 T. E. 393. By the 4 Geo. 2, slrvS'°iaga"inst c. 28, s. 6, this consequence of merger was obviated in the sub-lessees. instance of leases surrendered in order to be renewed. Cousins V. Phillips, 3 H. & C. 892; see Re Ford^s Estate, L. E., 8 Eq. 309. And now by the 8 & 9 Vict. c. 106, s. 9, when the reversion expectant on a lease is surrendered or merges, the estate which for the time being confers as against the tenant under the lease the next vested right shall, for the purpose of preserving the incidents to and obligations upon the same reversion, be deemed the reversion expectant on such lease. Tenant in Fee or in Tail entitled to charge. 621 CHAPTER II. MEKGEE OP CHARGES ON PEOPERTY. Tenant in Fee or Tail enti- tled to cliarge .. .. Charge merges in Fee or Estate Tail Unless contrary to Omner's Interest . . Tenant in Tail in Pos- Contrary Intention . . Fkidence of Intention . Contingent Right to charge . . . . Owner Lunatic Infants Creditors Release of Term secur- ing Charge 621 621 621 621 622 622 622 622 622 623 623 Where several entitled. 623 Tenant for Life entitled to charge Tenant in Fee or in Tail pay- ing off Charge Presumption of Exone- ration Wlien, kept Alive Tenant' in Tail in Re- mainder Infant's Estate Parol Evidence of In tention Tenant for lAfe paying off Charge 624 Presumed to pay for Ms own Benefit .. .. 624 Statute of Limita- tions .. .. .. 624 623 623 623 623 623 624 624 Tenant in Fee or in Tail entitled to charge.] When the charge merges in right to an estate of inheritance, and the right to a charge S'^poss^on.'"" upon it, become vested in the same person absolutely, a presumption will, as a general rule, arise after his death \Swinfen v. Swinfen, 29 Bea. 199), that the charge has become merged and extinguished in the inheritance, whether the right to the property or the right to the charge first existed. Thus, where a person seised of an estate iwfee ahso- trniess contrary lutely, or as tenant in tail in possession, becomes entitled to J^""""^"'^ '""' a charge upon it, the charge will merge, unless kept alive, or unless it is to the owner's interest that it should not merge, as it will then be presumed that such was his intention, to which effect wiU accordingly be given. Forbes v. Moffatt, 18 Ves. 384; Swabey v. Swabey, 15 Sim. 106; Grice v. Shaw, 10 Ha. 76; see Ld. Compton v. Oxenden, 2 Ves. jun. 264; By am v. Sutton, 19 Bea. 556. But this rule, as regards tenants in tail, is applicable only Tenant in tail to tenants in tail in possession, not in remainder, where the ™"^.' ""^ '" »"'- ' ' session estate of the latter is liable to be defeated by the birth of issue of another person, and he has himself paid off the charge. Wig sell v. Wigsell, 2 S. & S. 564; Ilorton v. Smith, 4 K. & J. 624. But there is a difference between a tenant in tail in remainder becoming entitled under a will or otherwise, without any act on his own part, to a charge on the estate, and cases where he has entitled himself to the charge by an actual payment made by himself. See per 622 Merger, Contrary inten- tion expressed. Evidence of in- tentlou. rresumption of intention. Devise subject to charge. Bequest of charge. Contingent right to charge. Devise of charge not mentioned. Owner lunatic. Wood, V.-C, 4 K. & J. 628; and Johnson v. Webster, 4 D., M. & G-. 474, -post, p. 624. Of course if the owner expressly declares his intention that the charge shall be kept on foot, no question can arise. See Bailey v. Richardson, 9 Ha. 736; Tyrwhitt v. Tyrwhitt, 32 Bea. 244. The presumption arises on the death of the owner, and may be collected from the circumstances existing at his death and from his acts, and the facts aflFecting his position down to and at the time of his decease. Swinfen v. Swin- fen, 29 Bea. 199; Tyrwhitt v. Tyrwhitt, sup. When the eflFect of the merger would be to let in the testator's or grantor's debts {Davis t. Barrett, 14 Bea. 542; Sing V. Leslie, 2 H. & M. 68), or other incumbrances {Forbes v. Moffatt, 18 Ves. 384; Richards v. Richards, Johns. 754), this will in general be sufficient to show that no merger was intended. But where a person who was ab- solutely entitled to a fund on the death of A. borrowed the fund and mortgaged an estate to secure it, and then pre- deceased A., having bequeathed all sums due on real secu- rities to which he was entitled, it was held that there was no merger, and that the debt passed under the bequest. Wilkes V. Collin, L. R., 8 Eq. 338. So if he has done anything from which it is clear that he considered the charge as in existence, as if he has bequeathed it specifically {Blundell v. Stanley, 3 De G. & S. 433), or has devised the property subject to the liabilities attaching to it, the charge will be held to subsist. Hatch v. Skelton, 20 Bea. 453. But this is not an inflexible rule, and the devise or conveyance may show, that though it purport to be subject to the charge, the intention was that it should only be kept alive for a particular purpose. Thus if the owner of the estate is only contingently entitled to the charge, for instance, on failure of the children of A., and conveys the estate subject to it, the charge if it eventually falls into possession (A. having no children) will merge. Johnson v. Webster, 4 D., M. & Gr. 474; see Astley v. Milles, 1 Sim. 298. A devise by an owner in fee entitled to a charge upon it, without mentioning the charge, is some evidence of an in- tention to merge it. Swinfen v. Swinfen, 29 Bea. 199, 204. When the owner is a lunatic the charge will merge unless it is to his interest that it should be kept alive. Ld. Comp- ton V. Oxenden, 2 Ves. jun. 261. As to infants prior to the Wills Act, 1 Vict. c. 26, they could make wills oi personalty, but not of realty, before their majority; a presumption arose, therefore, that it was to their Tenant in Fee or in Tail paying off Charges. 623 interest to keep the charge alive, over which they would have a disposing power before they attained their majority. Powell V. Morgan, 2 Ver. 90 ; Donisthorpe v. Porter, 2 Ed. 162. This reason, however, is no longer applicable. 1 Vict. c. 26, s. 7; see Bowling v. Belton, Flan. & Kelly, 462. As formerly real estate was not, except in certain cases, creditors. liable to a deceased owner's debts, equity held, in favour of creditors, that the charge was subsisting, inasmuch as that being personalty was liable to the owner's debts. Donis- thorpe V. Porter, 2 Ed. 162. This reason, however, would now no longer apply. See ante, tit. " Assets." Where a charge is secured by a term, and the owner of Release of term the charge releases the trustees of the term, it will be pre- ^^""^'^^ '="'^"'*- sumed that he intended the charge to be satisfied, though the presumption may be rebutted. Clifford v. Clifford, 9 Ha. 675. Where children are entitled in equal shares to one gross where several sum charged on an estate, which comes to them as tenants ™'' in common, in fee or in tail, the charge will prima facie merge ; but any so entitled may keep his share of the fund a subsisting charge. See Smith v. Frederick, 1 Euss. 174 ; Otway Cave v. Otway, L. E., 2 Eq. 725. Tenant for Life entitled to charge.^ The rules as to a tenant in fee or in tail are not applicable to a tenant for life. In his case the charge will subsist, though he takes a life interest in the estate on which it is charged. Sterne v. Wolfe, WaUis (Ed. Lyne), 167 : and see post, Tenant for Life paying off Charge, p. 624. Tenant in Fee or in Tail paying off Charge.^ Some- times the question arises, where the owner in fee or in tail, or tenant for life, pays q^ incumbrances, whether they are to be considered as subsisting or not. In such cases, in Presumption timt general, if the owner in fee or tenant in tail in possession pays onerationr '" ''^ off a charge, the preceding rules for the most part apply, and a presumption arises that he does so for the benefit of the estate. E. of Bucks v. Hobart, 3 Sw. 186, 199. But he may, as in the case of the owner who becomes when iiept aiive. entitled to a charge otherwise than by payment, keep it alive by a declaration to that effect, or by taking an assignment of it to a trustee for his own benefit ( Gunter v. Gunter, 23 Bea. 571); though this is not always conclusive. Hood v. Phillips, 3 Bea. 513; Pitt v. Pitt, 22 Bea. 294. But the rule does not apply to a tenant in tail in remainder Tenant in tali in who pays off a charge ( Wigsell v. Wigsell, 2 S. & S. 364), remainder, though he afterwards becomes tenant in tail in possession 624 Merger. Executory devise. Infant's estate. Parol evidence to show intention. {Horton v. Smith, 4 K. & J. 624 ; see ante, p. 622); for there is a distinction between the case of a tenant in tail in remainder becoming entitled to a charge by payment and without payment; in the former case, on the remainder be- coming an estate in possession, the charge will not merge; in the latter it will, unless there is evidence of intention to the conti'ary. lb. Nor does the rule apply where the owner, subject to an executory devise over, pays off a chai'ge upon the estate, and the executory devise afterwards takes effect. Drinhwater V. Combe, 2 Sim. & S. 340. Neither does it where a charge is paid off out of the personal estate of an infant by order of the court. Alsop v. Bell, 24 Bea. 451. Parol evidence is admissible to show the intention of the party paying off the charge. Astley v. Milles, 1 Sim. 298. Presumed to pay for his own bene- fit. Statute of Limi- tations. Tenant for Life paying off Charge.^ A tenant for life, or person having a partial interest only, that is, an interest less than the whole inheritance, who pays off charges, is presumed to do so for his own benefit, as prima facie he cannot be presumed to discharge the debt of another (^Cts. of Shrewsbury v. E. of Shrewsbury, 1 Ves. jun. 233; Drink- wtiter V. Combe, 2 S. & S. 340, 345) ; and a tenant in tail restrained from alienating is in the same position in this re- spect as a tenant for life. lb. See further as to the general principle. Burr ell v. E. of Egremont, 7 Bea. 205; Pitt^. Pitt, 22 Bea. 294 ; Morley v. Morley, 5 D., M. & G-. 610. And this is the rule although he may have a remainder or reversion in fee, if there are intermediate estates ( Wynd- ham V. E. of Egremont, Amb. 753); and the subsequent union of the life estate and remainder will make no differ- ence, the charge will still subsist. Trevor v. Trevor, 2 M. & K. 675. But this presumption does not arise where the tenant for life pays off bond debts, as these are not charges on the estate. Morley v. Morley, 5 D., M. & G-. 626. If he merge the security by taking an assignment connecting it with the legal estate of inheritance, this, prima facie, will put an end to the charge. St. Paul v. Ld. Dudley and Ward, 15 Ves. 173; Burrell v. E. of Egremont, 7 Bea. 205. Where tenant for life pays off a charge, the Statute of Limitations does not begin to run from the time of such payment but from his death, for until that time there is no assignable person liable to pay the charge. lb. ( 625 ) MORTGAGES. Ch. 1. — Nature op a Mortgage in general, p. 625. Ch. 2. — Equitable Mortgages, p. 630. Ch. 3. — Who mat be Mortgagors and Mortgagees, p. 636. Ch. 4. — Of the Subject-matter op Mortgages, p. 641. Ch. 5. — Op the usual Covenants and Provisions in Mortgages, p. 657. Ch. 6. — Op the Transfer and Devolution op the Equity op Redemption, p. 661. Ch. 7. — Or the Transfer and Devolution op the Mortgage Debt and Securitt, p. 668. Ch. 8. —Mortgagor in Possession — Mortgagee in Pos- session — Eeoeiver, p. 670. Sec. 1. — Mortgagor in Possession, p. 670. Sec. 2. — Mortgagee in Possession, p. 671. Sec. 3.— Receiver, p. 674. Ch. 9. — Mortgagee's Eights and Remedies, p. 676. Ch. 10. — Of Priority and Tacking, p. 684. Sec. 1. — Priority by Possession of the Legal Estate ok Title Deeds, p. 684. Sec. 2.— Tacking, p. 689. Sec. 3. — Priority by Registration, p. 694. Ch. 11. — Discharge op Mortgage — Reconveyance, p, 6»7. Ch. 12. — Trustee Acts as affecting Mortgages, p. 700. CHAPTER I. NATURE OF A MORTGAGE IN GENERAL. General Incidents ,. . . 626 Definition of . . . . 626 Legal — EpAtable , . 626 Sub-mortgage .. . . 626 General Incidents— eontd. Equity of Redemption . 626 Cannot be made irre- deemable . . . . 626 "W. s s 626 Mortgages. General Incidents — contd. Liviitation of Right as to Time or Persons . . 626 Jfo Proviso for Redemp- tion 627 Welsli Mortgage .. . . 627 Nature of .. . . 627 Covenant to pay Mortgage DeU 627 Want of, immaterial . . 627 Simple Contract or Spe- cialty Debt .4 . . 627 Mortgage or conditional Sale distinctions between . . 627 Mortgage or conditional Sale — continued. Sale or Mortgage under Form of Sale . . 628 Mortgage and condi- tional Sale .. .. 628 Option of Repurchase . 628 Fraud, Undervalue, Jtc . . 628 Undue Influence . . 629 Rights inconsistent mith Mortgage Seov/rity . . 629 Commission .. . . 629 Lease 629 Immoral Purpose . . 630 Agreement for Mort- gage — Costs .. .. 630 Definition of. Legal and equita- ble sub-mortgage. Equity of redemp- tion. Mortgage cannot be made irre- deemable. Limitation of right as to time or persons. General Incidents.] A mortgage may in general terms be described as an assurance or pledge of, or charge upon, pro perty real or personal, for an antecedent, present, or future debt or loan, as security for, and redeemable on, the repay- ment of it. See Seton v. Slade, 7 Ves. 273 ; also the defini- tion of a mortgage in the Trustee Act, 1850, post, Chap. XII. A mortgage may be either legal or equitable, and there may be a mortgage of a mortgage, or sub-mortgage. A mort- gage, where it is effected by some deed or written instru- ment, usually provides for the repayment of the debt on a day named, in general six months from the date of the mort- gage. In default of repayment the estate of the mortgagee in the property mortgaged becomes absolute at law (2 Blac. Com. 158), but in equity the right will still subsist to redeem the estate on payment of principal and interest. This is the mortgagor's equity of redemption. As a very general rule, property of every description is capable of being made the subject of a mortgage. A mortgage does not alter the existing limitations of property except for the purpose of the mort- gage itself, imless an express intention to resettle it is shown, and the equity of redemption continues subject to such limi- tations. Wood V. Wood, 7 Bea. 183; Hastings v. Astley, 30 Bea. 260. When the transaction clearly amounts to a mortgage it cannot be made irredeemable, for it is a maxim that once a mortgage ahcays a mortgage {Howard v. Harris, 1 Ver. 33); and the right will subsist generally although the deed may limit a time for redemption, for instance, the lifetime of the mortgagor, or may limit the right to a particular class, as the heirs male of the mortgagor {ib.; Floyer v. Laving- ton, 1 P. W. 268); unless, perhaps, where the transaction is TT'ehh Mortgages, Sfc. 627 in the nature of a family settlement. BonhamY. Newcomb, 1 Ver. 7, 214, 232. It is immaterial that there is no proviso for redemption, No proviso tor or no day fixed for repayment, if the transaction is in fact a " ^^^ mortgage (Joynes v. Statham, 3 Atk. 389; Bell v. Carter, 17 Bea. 11); and a covenant against redemption is unreason- able. E. I. Comp. V. Atltyns, Comyn, 349. Welsh Mortgage.] A Welsh mortgage is a mortgage Nature of. under which the mortgagee is let into possession of the mort- gaged property until the rents and profits of it repay the money borrowed (2 Blac. Com. 157), the property being redeemable at any time on payment of principal and interest due. Yates v. Ha.mhley, 2 Atk. 363 ; see Fenwick v. Reed, 1 Mer. 114, 122. In early times such mortgages were com- mon, but they are now rare. See a mortgage of tolls, &c. in the nature of a Welsh mortgage, Jortin v. S. E. R. Co., 6 D., M. & G-. 270 ; cons. Douglas v. Culverwell, 4 D., F. & J. 20, 27, which appears to have been a Welsh mortgage, or in the nature of one. Covenant to pay Mortgage Debt.] The want of a cove- Want of, imma- nant to pay the mortgage debt is in general immaterial ^^ ' ( Goodman v. Grierson, 2 Ba. & Be. 27»), for every mort- gage implies a debt on the part of the mortgagor {King v. King, 3 P. W. 358); though a simple contract debt only simple contract where there is no covenant {Yates v. Aston ,4 Q. B. 182; ""P^^i^i'y d«"- Courtney v. Taylor, 6 M. & Gr. 851 ; Adey v. Arnold, 2 D., M. & G-. 432 ; Isaacson v. Harwood, Brook v. Hai-- U'ood, L. E., 3 Ch. 225), unless there is such an acknowledg- ment of the debt in the mortgage deed that a covenant to pay will be implied {Mnrryat v. Marry at, 28 Bea. 224); for " whatever words are used by a party to a deed, if he intends that they shall operate as a covenant, he will be held liable." Per Lord Cairns, L. J., L. R., 3 Ch. 228; see Saunders v. Milsome, L. E., 2 Eq. 573. Mortgage or conditional Sale.] A mortgage is distin- Distinctions guishable from a conditional sale, or sale with the option of ''^'''*^°- repurchase at a future time, in which case there is no right of redemption {Perry v. Meddowcroft, 4 Bea. 197), only a right of repurchase, which must be strictly exercised. Bar- rett V. Sabine, 1 Ver. 268. If the transaction is to be treated as a mortgage, the rights must be mutual and reciprocal, and the mortgagee must have all the remedies a mortgagee is entitled to {Goodman v. Grierson, 2 Ba. & Be. 274; and see Lincoln v. Wright, 4 D. & J. 16 ; Alderson v. White, 2 D. s s2 628 Mortgages. Sale or mortgage under foi-m of Unfair advantage. Option of re-pur- chase, wlio enti- tled to purcliaae- money. & J. 97) ; and there must be an existing mortgage debt. Williams v. Owen, 5 M. & Cr. 303. The question in cases of this description always is, whether the transaction is a bona fide sale with a contract of repur- chase, or a mortgage under the form of a sale. lb. ; see Shaw V. Jeffery, 13 Moo. P. C. 432. And it is a circumstance to be considered by whom the expenses of the transaction are to be paid, as in mortgages they are paid by the mortgagor, but on a purchase, those of the conveyance by the purchaser. Williams v. Owen, sup.fTp. 308 ; and comp. Alderson v. White, 2 De G. & J. 97. Receipts of money by the mortgagee as interest (Cripps v. Jee, 4 B. C. C. 471), or a memorandum signed by him or his agent recognizing the transaction as a mortgage ( Whitfield v. Parfilt, 15 Jur. 832), will be evi- dence to show that it is one. But where the transaction is in fact a purchase, a reference in the will of the purchaser to the subject-matter of the purchase as being redeemable will not make it a mortgage. Alderson v. White, sup. Where it is a conditional sale, with an option of repurchase, the money must be paid strictly in pursuance of the agreement. Davis V. Thomas, 1 E. & My. 506. A mortgagor may sell his equity of redemption to the mortgagee coupled with a right of repurchase. Gossip v. Wright, 9 Jur., N. S. 592. Where, on an advance of money, there was an agreement to repay it, and if not repaid the borrower was to assign certain property to the lender, and the money was not repaid, it was held that, under the agreement, the relation of vendor and pur- chaser, and not that of mortgagor and mortgagee, was con- stituted. Tapply V. Sheather, 8 Jur., N, S. 1163; cons. Re Edwards, 11 Ir. Ch. Eep. 367. If an unfair advantage be taken to obtain a conveyance at an undervalue from a person who is desirous of mort- gaging, not of selling, the sale will be set aside and the transaction treated as a mortgage. Douglas v. Culverwell, 3 Giff. 251 ; see Denton v. Donner, 23 Bea. 285. Where the transaction is in fact a conditional sale by A. to B., with an option of repurchase by A., and B. dies seised, the purchase-money, on the option being afterwards exer- cised by A., will, according to a learned author, go to the real and not to the personal representative of B. Spence, 2 Eq. Jur. 624, citing Thornborough v. Baker, 3 Sw. 628; St. John V. Wareham, 2 Fr. 26. Cons., however, the cases on conversion, ante, p. 101. Fraud. Fraud, Undervalue, Sfc] If the execution of a mort- gage by the mortgagor has been procured by the fraud of Fraud, Undervalue, SfC. 629 his solicitor, and no money of the mortgagee has been paid to the mortgagor, the mortgage confers no title on the mort- gagee, although innocent, and although he has handed over the money to the solicitor. Wall v. Cockerell, 10 H. L. C. 229 ; see Eyre v. Burmester, ib. 90 ; Adsetts v. Hives, 33 Bea. 52. Neither can a mortgagee derive any benefit from a security given to him by the mortgagor as surety for another, which is obtained by misrepresentations of the mortgagee to the mortgagor. Lake v. Brutton, 8 D., M. & G-. 440. On the other hand, a mortgagee, who has been deceived by means of the fraud of the mortgagor and others in sup- pressing a settlement, has his remedy against all who are parties to the fraud. Clark v. Hoskins, 37 L. J., Ch. 561. A mortgage which has been obtained through the undue undue influence, influence of the mortgagee, in consequence of his standing in some fiduciary relation to the mortgagor, will be dealt with or set aside, like a purchase under similar circum- stances, on equitable terms. See Savery v. King, 5 H. L. C. 627; Cowdry v. Day, I Giff. 316. The rules affecting sales of reversionary interests were undervalue. formerly equally applicable to mortgages, and it was incum- bent upon a mortgagee in many cases to prove value. Emmet V. Tottenham, 10 Jur., N. S. 1090 ; see Webster v. Cook, L. E., 2 Ch. 542. Now, by the 31 & 32 Vict. o. 4, no pur- chase made bona fide of any reversionary interest in real or personal estate shall be set aside merely on the ground of undervalue (s. 1). Purchase includes any contract or con- veyance by which any beneficial interest may be acquired (s. 2), consequently mortgages. The act does not apply to suits depending on 1st January, 1868 (s. 3), on which day the act came into operation. Rights inconsistent with the Mortgage Security.^ A mortgagee cannot reserve an advantage not strictly belonging to the contract of mortgage, e. g., a right to commission on a sale of the mortgaged property {Broad v. Selfe, 9 Jur., N. S. 885 ; see Barrett v. Hartley, L. R., 2 Eq. p. 795) ; or a right Commission. to receive the rents with a commission ( Chambers v. Gold- tvin, 9 Ves. 271; Langstaffv. Fenwick, 10 Ves. 405; Leith V. Irvine, 1 M. & K. 277) ; or, generally, any other right not arising out of the mortgage itself See Jennings v. Ward, 2 Ver. 520; Gubbins v. Creed, 2 Sch. & L. 217. But a mortgagee of property in the West Indies may stipulate that the consignments shall be made to him. Bunbury v. Wititer, 1 J. & W. 261 ; see Cox v. Champneys, Jac. 576 ; Leith v. Irvine, 1 M. & K. 288. A lease by a mortgagor to a mortgagee for 999 years Lease. 630 Mortgages. Immoral purpose. Agreement for mortgage— Costs. will be set aside at the instance of the mortgagor ( Webb v. Rorke, 2 Sch. & L. 661); and, if not disputed by him, and there is a puisne mortgagee, and the lease is subsequent to the puisne mortgage, the rights of the subsequent mortgagee cannot be affected by the lease, and the first mortgagee will be charged as a mortgagee in possession. Gregg v. Arrott, LI. & G. t. Sug. 246. When a mortgagee advances his money in order to avail himself of the mortgage for an immoral purpose, for instance, the seduction of or improper intercourse with the daughter of the mortgagor, the mortgage will not be enforced in equity. Willyams v. Bullmore, 33 L. J., Ch. 461. A mere agreement for a mortgage, no money being or having been lent, cannot be enforced in equity. Rogers v. Challis, 27 Bea. 175. Where parties are in treaty for a mortgage (which is not subsequently carried out), and the intended mortgagor agrees to pay the mortgagee's reasonable costs, this will not include the costs of withdrawing money from a banker, and remitting it to London for payment. Re Blahesley, 32 Bea. 379. In the absence of any express contract the intended mortgagee has no claim against the intended mortgagor for the costs of investigating the title, where the treaty goes off, even through the default of the mortgagor ( Wilkinson v. Grant, 18 C. B. 319), unless the arrangement for the mortgage is under the sanction of the court, and goes off without any default on the part of the intended mortgagee. Craggs v. Grey, 35 Bea. 166. CHAPTER II. EQUITABLE MORTGAGES. What — Soro made . . . . 631 Charge-^Agreement . . 631 Deposit of Deeds • . 631 WitJwut Memorandum 631 Folicies, Shares, ^o. . . 631 Deeds left for Prepara- tion of Legal MoHgage 632 Parol Evidence as to . . 632 Fixtures . . ■ . 632 Agreement to deposit , . 632 In whose Favour ope- rates 632 Deposit of some of the Deeds 633 Priority under . . 633 What — Sorv made — cont. Intention to deposit • • Effect and Operation of . . In general binds all Property comprised in Deeds Gives Right to Fore- closwe, Sale, or Legal Mortgage- Prior roltintary Con- veyance Deposit with Solicitor for Costs Pight prevails over Judgment • • 633 633 633 633 634 634 634 Equitable Mortgages. 631 Effect and Operation of — continued. Sub-mortgage ., . • 634 Rights of Depositary . . C34 Depositor mho acquires greater Interest . . 634 When extended to fu- ture Advances . . 635 Legal and EciuitaMe Mortgagee of Lease- holds 635 Deposit is not an As- signment .. .. 635 Effect and Operation of— continued. Power of Attorney .. 635 With whom made , , G35 Deposit with Firms . . 635 Evidence of Dealings n-ith 635 Equitaile Assignment of Money 635 Agreernent or Order clmrging Debtor's Funds .. .. 635 Revocation of Order . . 636 WJiat—How made.] An equitable mortgage of real or Charge— Agrec- personal property may be made by an express equitable '"™'' mortgage, for instance, a mortgage subject to a prior legal mortgage, or by a cbarge upon tbe property, or by an agree- ment on a loan to execute a legal mortgage of specific pro- perty {Ex parte Heathcote, 2 M., D. & D. 711 ; Carew v. Arundell, 8 Jur.,N. S. 71; see Eyre v. M'Bowell, 9 H. L. Cas. 619); though it would seem doubtful whether a mere agreement to give a mortgage for an antecedent debt can be enforced where there is no express stipulation that the intended mortgagee shall forbear to sue. See Crofts v. Fenge, 4 Ir. Ch. 316 ; Woodrojfe v. Johnston, ib. 319. But see Ashton v. Corrigan, 6 W. N. 221. Where the agreement is to execute a mortgage with all usual covenants, and it is under seal, the mortgage debt becomes a specialty debt. Saunders v. Milsome, L. R., 2 Eq. 573 ; see ante, p. 627. An equitable mortgage may also be created by the deposit Deposit of deeds. of title deeds (Russel v. Russel, 1 B. C. C. 269 ; Fenwick V. Potts, 8 D., M. & G. 506), or copies of court rolls of copy- hold property ( IVhitbread v. Jordan, 1 Y. & C, Ex. 303 ; Pryce v. Bury, 2 Drew. 11), even without a memorandum May be without or anything being said. Ex parte Langston, 17 Ves. 230; memorandum, see Ede v. Knowles, 2 Y. C. C. 172. Where, however, there is no memorandum, a mortgagee will not be allowed, in bankruptcy, his costs out of the produce of the sale of the mortgaged property ; but letters written after the deposit are sufficient to entitle him to costs. Ex parte Bisdee, 1 M., D. & D. 333 ; Ex parte Reynolds, 2 Mon. & A. 104. Under the Registration of Titles Act, 25 & 26 Vict. c. 53, Registration of an equitable lien or mortgage on land, the title to which is ''^'""^ ^^^' registered under that act, will not be created by a deposit of the deeds (s. 63), but will by a deposit of the land certi- ficate. Ib. s. 73. A deposit of a policy of assurance {Ferris v. iluUins, 2 Deposit of poii- Sm. & G. 378), or shares or certificates of shares in com- '^'°^' *"'■ 632 Mortgages. Deeds left for preparation of legal mortgage. Parol evidence. "When comprisea fixtures. Agreement to deposit. In wliose favour operates. panies {Ex parte Stewart, 11 Jur., N. S. 25), creates an equitable mortgage. So, if deeds are left in order that a legal mortgage may be prepared from them, it would seem that, where the money has already been advanced, this creates an equitable mortgage. Ex parte Bruce, 1 Rose, 374; Hockley v. Bantock, 1 Russ. 141. See, however, contra. Ex parte Bulteel, 2 Cox, 243 ; Norris v. Wilkin- son, 12 Ves. 192. Where there is a written memorandum at the time of the deposit, it will control any inference which would otherwise be drawn from the mere deposit. Ex parte Coombe, 17 Ves. 369. Parol evidence, however, may be received in connec- tion with the deposit. Ede v. Knowles, 2 Y. C. C. 172; see Ferris v. Mullins, 2 Sm. & G. 378. If the deeds relate to realty or chattels real, fixtures an- nexed, including tenants' fixtures, will be included, though not specifically mentioned ( Williams v. Evans, 23 Bea. 239), and whether erected before or after the deposit. Ex parte Price, 2 M., D. & D. 518; Ex parte Cotton, ih. 725. A parol agreement to deposit deeds, without an actual deposit, is not an equitable mortgage {Ex parte Coombe, 4 Madd. 249; Ex parte Perry, 3 M., D. & D. 252); though it has been held that if securities are in the hands of a third person an agreement to assign them will create an equitable mortgage. Ex parte Heathcote, 2 M., D. & D. 711. And an agreement to deposit a conveyance, not then executed, gives a lien upon it when executed. Ex parte Orrett, 3 Mon. & A. 153. See, however. Ex parte Perry, 3 M., D. & D. 252, in which Bruce, V. C, observed that it was only a case of actual deposit that excluded the operation of the Statute of Frauds ; and see Ex parte Coombe, sup. In Hopper V. Conyers (L. R., 2 Eq. 549), a solicitor bor- rowed money of his bankers on the security of a deposit of the title deeds of property mortgaged to a client, and applied the money in the purchase of an estate. When the mortgage was paid off he repaid the bankers, and induced his client to execute a re-assignment of the mortgage, assuring him that his money had been invested ; it was held that the client had a lien upon the estate so purchased by the solicitor. A deposit of deeds with a person to secure advances by him and to secure money advanced by another, does not in general operate as an equitable mortgage in favour of the latter {Ex parte Wliitbrcad, 19 Ves. 209), though it maybe shown that the depositary is in fact a trustee for another. Ih. But an order by the mortgagor, to an equitable mortgagee by deposit, on his debt being satisfied, to hand over the deeds to A., another creditor of the mortgagor, creates an equitable mortgage in A.'s favour. Daw v. Terrell, 33 Bea. 218. Effect and Operation of Equitable Mortgages. 633 A deposit of some of the deeds may create an equitable Deposit of somo mortgage. Ex parte Arkwright, 3M., D.&D. 129; Lacon ""he deeds. V. Allen, 3 Drew. 579. And on a deposit of some of the deeds with one person, and of others with another, the first depositary has in general the better equity, where there has been no gross negligence on his part in calling for all the deeds. Roberts v. Croft, 2 D. & J. 1 ; see post. Chap. X., sec. 1. Where deeds relating to one estate are deposited with A., Priority under, and then a legal mortgage of this and another estate is exe- cuted to B. without notice, and deeds are delivered to him purporting to be the deeds of both properties, he has no equity to have the deeds delivered up to him which were deposited with A. Barnard v. Bywater, 17 W. R. 71; see Joyce V. De Moleyns, 2 J. & La. 374; Stackhouse v. Ly. Jersey, 1 J. & H. 721; &aA post. Chap. X. When deeds are intended to be, but are not, deposited, intention to de- but are specified in the memorandum of deposit, this will '"'*''• be a good equitable mortgage. Ex parte Leathes, 3 Dea. & C. 112; see, however. Ex parte Hallifax, 2 M., D. & D. 544. But if 'in a mortgage to A. there is a recital of the deposit of deeds with B. as a security, which is contrary to the fact, a subsequent deposit of the deeds with B. will not give him priority over A. Eraser v. Jones, 5 Ha. 481; on app. 12 Jur. 443. Effect and Operation of] Prima facie all the property in general Wnds comprised in the deeds is bound {Ashton v. Dalton, 2 Coll. plSin'deedr' 565) ; but the enumeration of part of the property only in the memorandum will restrict the operation of the deposit to such part. Ex parte Hunt, 1 M., D. & D. 139; JVylde V. Radford, 9 Jur., N. S. 1169. But the operative part of the deed or memorandum will not, in every case, be limited by the recital. See Ex parte Glynn, 1 M., D. & D. 29. A deposit of deeds creates only an equitable mortgage of the property comprised in them, although the depositary is assured or induced to believe by the depositor that they comprise other property. Jones v. Williams, 24 Bea. 47. If the deeds deposited relate to real property, an equitable Gives right to interest in the land itself will be created, notwithstanding foreclosure or the 4th section of the Statute of Frauds, and a right in equity g^e." ^^^ "™ ' to a foreclosure, the mortgagor being allowed six months to redeem. Parker v. Housefield, 2 M. & K. 419. The equitable mortgagee will also be entitled to a sale where there is merely a deposit {London, Sfc. Co. v. Brown, 13 W. E. 490), except in the case of charity property {Darke v. Williamson, 25 Bea. 622), or he may have a legal mortgage 634 Mortgages. Prior voluntary conveyance. With solicitor lor costs. Right prevails over judgment. Sub-mortgage, Rights of depo- sitary. Depositor ac- quiring greater interest. executed, where there is a contract to that effect ( Yeatman V, Beed, 36 L, J., Ch, 282; see Matthews v. Goodday, 8 Jur., N, S. 90, where the marginal note on this point is inaccurate), unless there is a mere deposit hy way of indemnity against contingent payments, and the depositary has not been called upon to make any. Sporle v. Wayman, 20 Bea. 607. The mere deposit gives a right to interest, but only at 4 per cent. Re Kerr's Policy, L. R., 8 Eq. 331. The deposit of deeds comprising interests in land is valid under the 27 Eliz, c, 4 {ante, p, 275), against a prior volun- teer. Lister V. Turner, 5 Ha. 281. A deposit of deeds with a solicitor for past costs is valid, but was not so, formerly, for future costs. Jones v. Tripp, Jac. 322 ; Lx parte Laing, 2 M. & A. 381. Now, by the 33 & 34 Vict. c. 28, s. 16, "an attorney or solicitor may take security from his client for his future fees, charges and disbursements to be ascertained by taxation or otherwise." But costs are not future advances within the meaning of a mortgage extending to future advances. Shaw v. Neale, 6 H. L. C. 581. The equity of a depositary of deeds relating to real estate prevails over the legal title of a judgment creditor under an elegit. Whitworth v. Gaugain, 1 Ph. 728; see Anderson V. Kemshead, 16 Bea. 329. A person who is himself a mortgagee may, by a deposit of the mortgage deeds, create a valid equitable mortgage. Ex parte Tuffnell, 1 M. & A. 620; Ex parte Smith, 2 M., D. & D. 587. As a rule, the interest conferred on the depositary is co- extensive only with that of the depositor; and where the deeds are subject to a trust, it prevails against a depositary, though without notice of it. Manningford v. Toleman, 1 Coll. 670 ; Stackhouse v. Ly. Jersey, 1 J. & H. 721 ; Parker v. Clarke, 30 Bea. 54; Joyce v. De Moleyns, 2 J. & La. 374; Baillie v. M'Kewan, 35 Bea. 177. And if a depositor has no interest he can confer none (Jackson v. Butler, 2 Atk. 306); nor can he, by concealing notice of an incumbrance from his assignee, place the latter in the same position as if there had been no notice. Pord v. White, 16 Bea, 120, 125. If the depositor subsequently acquires a larger interest the lien will extend to it, as where he purchases the equity of redemption and deposits the conveyance of it, and then pays off the mortgage, his entire interest is bound. Ex parte Tuffnell, 1 M. & A. 620; Ex parte Bisdee, 1 M., D. & D. 333; comp. Price v. Bury, 2 Drew. 11; aff. 18 Jur. 967; and see Doe v. Pott, 2 Doug. 710, post, p. 643. Effect and Operation of Equitable Mortgages. 635 A security by deposit of deeds for a sum advanced, whe- when extended ther under a written or verbal agreement, may be extended advances." by parol to cover subsequent advances (^Ex parte Langston, 17 Ves. 227; Ex parte Nettleship,,' 2 M., D. & D. 124; see James v. Rice, Kay, 231; on app. 18 Jur. 818); though otherwise where the mortgage is a legal one. Ex parte Hooper, 1 Mer. 7. A mortgagee who is legal assignee of a lease is liable for Legal and equita- the rent and upon the covenants ( JVilliams v. Bosanguet, 1 f^Si'SS*" "' Br. & B. 238) ; but an equitable mortgagee is not {Moores V. Choat, 8 Sim. 508 ; overruling Flight v. Bentley, 7 Sim. 149 ; see Cox v. Bishop, 8 D., M. & G-. 815), and cannot be compelled to take a legal assignment. Moore v. Grey, 2 Ph. 717. A deposit of a lease is not, it would seem, within a Deposit is not proviso making it void on an assignment of it. Bowser v. ^^sigament. Colby, 1 Ha. 109. A power of attorney by a debtor to a creditor to pay him- power of attor- self out of the rents and profits of the debtor's lands is irrevo- ^^^' cable, and creates an equitable mortgage. Spooner v. Sandi- lands, 1 Y. C. C. 390; Abbott v. Stratten, 3 J. & L. 603. As a general rule, the deposit ought to be with the person advancing the money. Ex parte Coming, 9 Ves. with whom 115. A secretary to a bank, however, may himself be in ™'^'^- possession of, and hold his own securities, as agent for the bank for advances made to him. Ferris v. 3Iullins, 2 Sm. &G-. 378. Where the deposit is made with a firm, and it is intended Dsposit with that it should enure to the benefit of the futiire members of ^'™' the fiiTU, it should be so expressed in the memorandum of deposit, or proved by parol evidence (Ex parte Kensington, 2 V. & B. 79) ; or by evidence of dealings with the new firm, Evidence ot deai- from which a new agreement with them may be inferred, '"s^ ^'t''- Ex parte Oakes, 2 M., D. & D. 234; see Ex parte Smith, ib. 814. Equitable Assignment of Money.'] An equitable assign- ment of money is, to a certain extent, analogous to an equitable mortgage. An agreement between debtor and Agreementor creditor that the debt shall be paid out of a specific fund debtort fu^*. coming to the debtor, or au order given by a debtor to his creditor upon a third person owing money to or holding a fund of the debtor to pay such fund to the creditor, creates a valid equitable charge upon it. Rodick v. Gandell, 1 D., M. & G-. 763; see Yeates v. Groves, 1 Ves. jun. 281; Lepard V. Vernon, 2 V. & B. 51 ; Ex parte Imberf, 1 D. & J. 152 ; Jones V. Farrell, ib. 208; Gurnell v. Gardner, 9 Jur., N. S. 1220. It is unnecessary that such third person or Revocation of order. 636 Mortgages. agent should contract or consent to hold for the creditor. See Ex parte South, 3 Sw. 393; Burn v. Carvalho, 4^^.. & Cr. 702. The order, if not given or communicated to the creditor, may be revoked at any time. Scott v. Porcher 3 Mer. 652; Morrell v. Wooten, 16 Bea. 197. There must, however, be an express agreement or direction that a spe- cific fund or sum shall be liable. See Ex parte Carruthers 3 De G. & Sm. 570; Malcolm v. Scott, 3 Ha. 39. ' ' CHAPTER III. "WHO MAT BE MOKTGAGORS AND MORTGAGEES. Absolute Owner .. .. 636 Tenant in Tail . . . . 636 Extent of Estate created by 636 Disentailing Deed not en- rolled 637 Subsequent Bankruptcy of . 637 Trustees .. .. .. 638 1/unatic .. • .. .. 638 Married Women .. . . 638 Infants 638 Executors .. . . . . 638 Joint Mortgagees or Trus- tees 639 JReeeipt where Mortgage Debt 2}ay able to Trustees. 639 Building Societies . . . . 640 Absolute owner. Tenant in tail. Extent of the or for any other limited purpose. The absolute ovmer of property can of course mortgage it. As to a tenant in tail, it is enacted by the 3 & 4 Will. 4, c. 74, that "if a tenant in tail of lands shall make a disposition ft'^nant ta M by of ^he samB Under this act, by way of mortgage, or for any way of mortgage, other limited purpose, then and in such case such disposition shall, to the extent of the estate thereby created, be an ab- solute bar in equity as well as at law to all persons as against whom such disposition is by this act authorized to be made, notwithstanding any intention to the contrary may be ex- pressed or implied in the deed by which the disposition may be eifected: provided, that if the estate created by such dis- position shall be only an estate pour autre vie, or for years absolute or determinable, or if, by a disposition under this act by a tenant in tail of lands, an interest, charge, lien or incumbrance shall be created without a term of years abso- lute or determinable, or any greater estate, for securing or raising the same, then such disposition shall in equity be a bar only so far as may be necessaiy to give full effect to the mortgage, or to such other limited purpose, or to such inte- rest, lien, charge or incumbrance, notwithstanding any inten- tion to the contrary may be expressed or implied in the deed by which the disposition may be effected" (s. 21). Thus if a tenant in tail mortgages in fee by a deed duly IVAo may be Mortgagors and Mortgagees. 637 enrolled, the equity of redemption will be discharged from the estate tail, notwithstanding a contrary intention may be expressed. If the deed is not enrolled the issue in tail and remainder- men will not be bound, but in such cases it is by the same act provided, that when a tenant in tail of lands creates in a voidable estate such lands a voidable estate, in favour of a purchaser for J^u^'n^avourof value, and afterwards under this act, by any assurance other a purchaser, con- than a lease not requiring inrolment, makes a disposition of Be™ent'aispoBi'-' the lands in which such voidable estate shall be created, tionofsuch such disposition, ivhatever its object may be, and whatever under tMs act, but may be the extent of the estate intended to be thereby created, ""* against a pur- shall, if made by the tenant in tail with the consent of the notice. protector (if any) of the settlement, or by the tenant in tail alone, if there shall be no such protector, have the effect of confirming such voidable estate in the lands thereby disposed of to its full extent as against all persons except those whose rights are saved by this act; but if at the time of making the disposition there shall be a protector of the settlement, and such protector shall not consent to the disposition, and the tenant in tail shall not without such consent be capable under this act of confirming the voidable estate to its full extent, then and in such case such disposition shall have the effect of confirming such voidable estate so far as such tenant in tail would then be capable under this act of confirming the same without such consent: provided, that if such disposition shall be made to a purchaser for value, who shall not have express notice of the voidable estate, then and in such case the voidable estate shall not be con- firmed as against such purchaser and the persons claiming under him (s. 38). Prior to the act, if a tenant in tail who had mortgaged or charged by a deed inoperative to bar his estate tail, afterwards suffered a recovery, it operated to make good the prior mortgage or charge. CapeVs case, 1 Rep. 60; Tourle v. Rand, 2 B. C. C. p. 652. And a voidable subsequent bani5- estate created in favour of a purchaser by an actual tenant in ™^}^ °' tenant tail, who afterwards became bankrupt, or by a tenant in tail "" entitled to a base fee who became bankrupt, was confirmed (formerly) by the disposition of the commissioner under the then Bankrupt Act, if there was no protector, or being such with his consent, or on there ceasing to be a protector; but not against a purchaser without notice (s. 62). It has already been observed, that this is one of the sections which is now to be considered as contained in the Bankruptcy Act, 1869 {ante, p. 199). This of course is subject to the modi- fications which the change of procedure in bankruptcy has rendered necessary. 638 Mortgages. With power of sale. Married women. Infants. Executors. Trustees of realty may mortgage under an express power, or even under a power of sale, where the power is not to convert out and out (see Devaynes y. Robinson, 24 Bea. 86), but merely to sell for raising a particular charge. Stroug- hill Y. Anstey, 1 D., M. & G. 635, 645. Whether under a power to mortgage the trustee can give a valid power of sale to the mortgagee is doubtful. In Clarke v. Panopticon (4 Drew. 26) it was held that he could not. But see Russell V. Plaice, 18 Bea. 21 ; Bridges v. Longman, 24 Bea. 27; Leigh v. Lloyd,- 2 D., J. & S. 330. Where a sale is pro- hibited a mortgage cannot be made. Bennett v. Wyndham, 23 Bea. 521. See, as to a mortgage by deposit by trustees of a chapel, Darke v. Williamson, 25 Bea. 622 ; and a mortgage by them to some of their own body, Att.-Gen. y. Hardy, 1 Sim., N. S. 338. Trustees may mortgage for the purpose of paying for equality of exchange, or for renewing leaseholds. 23 & 24 Vict. c. 145, s. 9. Mortgages by lunatics, like other contracts by them, are, of course, not binding as a general rule ; but where money is lent to a lunatic, the mortgagee not being aware of his lunacy, and the transaction is hona fide, the mortgagee taking no advantage, the mortgage will be good. Campbell v. Hooper, 3 Sm. & Gr. 153 ; comp. Jacobs y. Richards, 18 Bea. 308. In the judgment in tlie former case the Vice-Chancellor is reported as stating to the effect that the mere insanity does not annul the transaction. But, as so stated, the rule might be understood to mean that it would be immaterial that the mortgagee knew of the insanity if he took no advantge of it, but the cases do not warrant this. See Danes v. Ly. Kirk- wall, 8 C. & P. 679 ; Molton v. Camroux, 4 Ex. 17 ; Beavan V. McDonnell, 9 Ex. 309; 10 Ex. 184; Elliott v. Ince, 7 D., M. & G-. 475. By the 16 & 17 Vict. c. 70, if a person has been found a lunatic, the Lord Chancellor or Lords Justices may order that his estate or interest in land or stock may be mortgaged for the purposes mentioned in the act (ss. \16 et seq.) See Re Stables, 10 Jur., N. S. 245. As to mortgages by husband and wife of the wife's property, see ante, tit. " Husband and Wife," Chap. VII. When the property is settled to the wife's separate use, she has, as already mentioned, for the most part, the same power over it as if she were a /erne sole. See ante, tit. "Husband and Wife." As to infants and their power to contract, see ante, p. 66. An executor may mortgage by legal or equitable mort- gage, with power of sale {Russefl v. Plaice, 18 Bea. 21), . the legal or equitable assets of his testator coming to his hands as executor, and the mortgagee need not look to the JVho may be Mortgagors and Mortgagees. 639 application of the money advanced. M'Leod v. Drummond, 17 Ves. 154; see Hurtland v. Murrell, 27 Bea. 204. The mortgagee will haTe priority over the creditors of the tes- tator, unless the transaction itself affords conclusive evidence of knowledge by the mortgagee that the money was not to be applied in discharge of the testator's debts {Barrow v. Griffith, 11 Jur., N. S. 6; see Ball v. Harris, 4 M. & C. 268; Collingwood v. Russell, 10 Jur., N. S. 1062); for there must be no fraud and no collusion with the mortgagee, or the transaction will be void as against the parties inte- rested in the assets. Wilson v. Moore, 1 M. & K. 337; Rice V. Gordon, 11 Bea. 265. It is not sufficient to im- peach a mortgage that an advance was first made, followed by the mortgage. Miles v. Durnford, 2 D., M. & G. 641. An executor cannot mortgage his testator's assets for his own debt (see M'Leod v. Drummond, 17 Ves. 153; Eland V. Eland, 4 M. & Cr. 427; Pannell v. Hurley, 2 Coll. 241); but he may mortgage his own specific legacy. Taylor v. Hawkins, 8 Ves. 209; see Haynes v. Forshaw, 11 Ha. 93; Brettle v. Burdett, 2 D., J. & S. 244. Where several jointly advance money on mortgage, the Joint mortgagees survivors or survivor are entitled at law, but in equity the "^ '■"'*''^'^- representatives of a deceased mortgagee are entitled to his proportion. See Morley v. Bird, 3 Ves. 629, 631. Where, therefore, the mortgagees are trustees, there is usually a de- claration that the money belongs to them on a joint account in equity as well as at law, and that the receipt of the survivor or his representatives shall be a sufiicient discharge. See Hind V. Poole, 1 K. & J. 383 ; Matson v. Denis, 10 Jur., N. S. 461. With reference to the general duties of trustees in ad- Amount trustees vancing money on mortgage, see tit. " Teustees," post. It '""^ '''°*' has been, said that where trustees lend on- mortgage they should not advance more than two-thirds of the estimated value on freehold land, and not more than one-half on house property {Slickney v. Sewell, 1 M. & C. 8; Norris v. Wright, 14 Bea. 291, 307); and it is doubtful whether trustees can properly lend on a second mortgage without obtaining the legal estate. Norris v. Wright, sup. By the 22 & 23 Vict. c. 35, s. 23, the receipts of any per- Keceipts where son to whom any mortgage money shall be payable upon any "ayawe'to'^tru's- express or implied trust shall effectually discharge the person tees, paying from seeing to the application or being answerable for the misapplication or nonapplication of it. See the larger power under the 23 & 24 Vict. c. 145, s. 29, post, tit. " Trustees." 640 Mortgages. Building societies. Building Societies are regulated by the 6 & 7 Will. 4, c. 32, amended by the 9 & 10 Vict. c. 27. Their chief object is to enable members to raise money by means of the subscription of their members for the purpose of erecting or purchasing houses or other real or leasehold estate, such money to be secured by mortgage to the society. 6 & 7 Will. 4, c. 32, s. 1. Rules may be made as to the forms of conveyance or mort- gage to be contained in a schedule to the rules, which are to be certified and deposited in pursuance of the Friendly So- ciety Acts, 10 Geo. 4, c. 56, and 4 & 5 Will. 4, c. 40, ss. 3, 4. A receipt (specified in such schedule) indorsed on the mort- gage is to be sufficient to discharge the mortgage without re- conveyance (s. 5). And by the 10 Geo. 4, c. 56, s. 21, the property of the society may be vested in the treasurer or trustees of it, and usually is in the latter. After the death or removal of any treasurer or trustee the property vests in the succeeding treasurer or trustee in trust for the society. Where a mortgagor is seised to uses to bar dower, the receipt indorsed re-limits the estate to the same uses. Plowden v. Hyde, 2 D., M. & G. 684. With respect to the operation of this receipt clause where there are several mortgagees, see Pease v. Jackson, L. R., 3 Ch. 576, -post. Chap. X. The directors of such societies cannot borrow by way of mortgage for the purpose of purchasing land. Re Kent Benefit Building Society, 1 Dr. & Sm. 417. But a rule, duly certified, empowering the trustees of a benefit building society to borrow a limited amount of money for the purposes of the society is not illegal under the Building Societies Act (Laing v. Reed, L. R., 5 Oh. 4), although the certificate of the barrister appointed to certify rules under the act is not conclusive as to its legality. Ih. Where the mortgage is not authorized by the rules of the society, it must be sanctioned by each individual member. Re Kent, SfO. Society, sup. And a rule giving an unlimited power of borrowing to such a society is illegal. Hill's Case, Jones's Case, L. R., 9 Eq. 605 ; see Re National, S^c. Society, L. R., 5 Ch. 309. As to debentures under the Mortgage Debenture Acts, see ante, p. 421. Where cannot be mortgagore. Mortgage deben ture. Freeholds, Copyholds, Leaseholds. 641 CHAPTER IV. OF THE SUBJECT-MATTEE OF MORTGAGES. Freelwlds, Copyholds, Lease- Property should be cor- rectly referred to . . Grant and Possession of Title Seeds Accretions Fixtures Comprised in Mortgage of Realty or Cliattels Seal . . 641 642 642 643 643 643 Cliattels Personal — Bill of Sale 644 Not within 13 Mix. CO . 644 Sills of Sale Act .. 644 Rep^ded Ownership . . 645 Tiliere Registration un- necessary .. .. 646 Mortgage of all Effects 646 Morigage of future Goods .. ..646 License to take . . 646 Policies of Assurance .. 646 Suicide of Assured .. 646 To whom Policy effected iy Mortgagee belongs 647 Choscs in Action .. .. 647 Assignee of Chose in Action talies subject to Equities affecting it 647 Notice of Mortgage, when necessary . . . . . . 648 To prevent suiseguent Mortgagee Priority To prevent Office or Debtor paying As- signor To prevent Operation of Banhruptcy .. 048 649 Notice of Mortgage, necessary— con'amys.i. Knowledge but no No- tice 649 By whom . . . . 649 To whom .. . . 660 In Case of Companies . 650 To Solicitor . . . . 650 To Agents — Trustees . . 650 Between Volunteers ., 651 Constructive Notice . . 651 Declaration of Trust . . 651 Rules as to Notice as regards Real Estate . 651 Pund in Court . . . . 652 Stop Order .. .. 652 Notice to Trustee be- fore Payment into Court .. ..652 Distringas . . . . 652 Mortgage of Stoch . . . . 652 Mortgages of Ships . . 653 Railway Debentures . . 654 Expectancies . . . . 654 Interest under Wills . . 654 As Next of Kin or Heir 654 8 <|- 9 Vict. c. 106 . . 654 Reversionary Interests . . 654 Pay — Salaries — Pensions, S'c 655 Not in general Assign- able . . . . . . 655 as Conv- ..655 gxven pensation Profits of Fellowships, #c Salary of Judge Ecclesiastical Benefices 656 Profits of Partnership . 656 Mortgages or Pledges by Factors 656 656 656 Freeholds, Copyholds, Leaseholds.] A mortgage of free- ifrooiioicis. holds is usually made by a conveyance in fee, for the mortgagee, having the whole legal estate, can then more conveniently exercise his power of sale. vr. T T 642 Mortgages. Copyholds. Renewable lease- holds. Property should be correctly de- scribed. Grunt and possea- slon of deeds. A mortgage of copyholds is made by a surrender (which is entered on the court rolls) to the use of the mortgagee, conditioned to be void on payment of the mortgage debt and interest. The mortgagee is seldom admitted in the first instance, as a fine would be payable. A surrender to such uses as the mortgagee shall appoint is one that the lord may refuse to accept. Flaeh v. Downing Coll., 13 C. B. 945. But, if accepted, the lord is bound by it. JLddleston v. Collins, 3 D., M. & G. 1. Until the admittance of the mortgagee the mortgagor is tenant on the court rolls. See Kenebel v. Scrafton, 8 Ves. 30. The admittance of the mortgagee, when taken, relates back to the surrender against all persons but the lord. Holdfast v. Clapham, 1 T. E. 600. In a mortgage of renewable leaseholds, there is usually a covenant by the mortgagor to procure a renewal, otherwise he is not bound to do so. Lacon v. Mertens, 3 Atk. 4. But in such a case the mortgagee may renew, and hold the new lease as a security for the original debt and interest, and expenses of renewal and interest. lb. Where leaseholds are mortgaged, the mortgage is often by demise of the mortgagor's term, less the last few days or last day, in order that the mortgagee may not be subject to the rent and covenants of the lease. In such cases there is in general, and should be, to make the mortgagor a trustee witliin the Trustee Act {post. Chap. XII.), a declaration of trust of the reversionary day or days left in the mortgagor in fa,vour of the mortgagee and his vendee. If a mortgagor of leaseholds fraudulently incurs a forfeiture, and induces the landlord to take advantage of it, and afterwards grant him a new lease, the new lease will in equity be subject to the mortgage. Hughes v. Howard, 25 Bea. 575. The mortgage should state accurately what is intended to be comprised in it. It will not in general be extended to property other than that expressly referred to, by such words as " all other the lands." Brooke v. Ld. Kensington, 2 K. & J. 753. A mortgage or charge, however, of all the mortgagor's interest will comprise a remainder. Pryce v. Bury, 2 brew. 41; aflSrmed 23 L. J., Ch. 676. But where a mortgagor was possessed of a freehold interest in oue moiety of a house, and a leasehold interest in the other moiety, subject to a covenant not to assign without licence, by deed, reciting that he was seised in fee of the house, granted in general terms, all his estate and interest therein, it was held, that only the freehold interest passed. Francis V. Minton, L. E., 2 C. P. 543. A first mortgagee rarely parts with his money until the Freeholds, Copyliolds, Leaseholds. 643 deeds of the property are handed to him. Hence it has be- come the usual, or at all events not unfrequent, practice not to make any specific grant of the title deeds in the mortgage. Where they are not delivered over, and there is no grant of them, a mortgagee of the legal fee is nevertheless entitled to them {Harrington v. Price, 3 B. & Ad. 170; cons. Davies V. Vernon, 6 Q. B. 443); but not where the mortgage is for a term. See ib.; Jenner v. Morris, L. R., 1 Ch. 603. It will be seen hereafter (Chap. X., Sec. 1), that gross negligence or fraud, in not obtaining possession of the title deeds, is a ground for postponing a mortgagee even with the legal estate. Where the mortgagee has obtained the deeds, he may retain them until payment or actual tender of all that is due to him; and payment into court is insufficient. Pos- tlethwaite v. Blythe, 2 Sw. 256. And he is not bound to Proauction by allow any inspection of them. Crisp v. Platel, 8 Bea. 62; ™'"''s'»«ee. Darner v. E. Portarlington, 15 Sim. 380; Howard v. Ro- binson, 4 Drew. 522. But it has been held, that the mort- gage deed itself may be ordered to be produced for inspec- tion. Patch V. Tf'ard, L. R., 1 Eq. 436 ; see Re Mark's Trust Deed, L. R., 1 Ch. 429. But cons, the judgment, Chichester v. Marq. of Donegal, L. R., 5 Ch. p. 502. It is a general rule, that whatever new advantages accrue Accretions to to the property during the time that it is in mortgage enure subject-matter to the benefit of the mortgagee. Thus, if the mortgage be of a manor, copyholds of the manor, subsequently acquired by the lord, become subject to the mortgage. Doe d. Gibbons V. Pott, 2 Doug. 710. So on a mortgage of leaseholds, if a fresh lease of the property be obtained by the mortgagor, who has induced the lessor to forfeit the original lease, the new lease will be subject to the original mortgage. Hughes V. Howard, 25 Bea. 575 ; and see ante, p. 634. A mortgage of realty or chattels real will comprise fix- Fixtures, tares of every description attached or annexed thereto, even Comprised lo after the mortgage. Cullwick v. Swindell, L. R., 3 Eq. ZI^m.I^M^'^^ 249; Climie v. Wood, L. R., 3 Ex. 328. Such mortgages will in general also include trade fixtures and the moveable parts of fixed machinery. Ex parte Barclay, 5 D., M. & G. 403; see Cort v. Sagar, 3 H. &N. 370; Fishery. Dixon, 12 CI. & F. 312; Boyd v. Shorrock, L. R., 5 Eq. 72; Ex parte Astbury, Re Richards, L. R., 4 Ch. 630. But this general effect of a mortgage will sometimes be qualified; thus, where there were fixtures on different parts of distinct properties mortgaged, a foundry and a dwelling-house, and those in the house only were expressly enumerated in the mortgage, those in the foundry were held not to pass. Hare v. Horton, 5 B. & Ad. 715. But the general rule will prevail, T T 2 644 Mortgages. and all fixtures in a house or place will pass, although some only are expressly specified. Mather v. Fraser, 2 K. & J. 534. Ordinary house and trade fixtures are excluded from the operation of the reputed ownership clauses of the Bank- rupt Acts (see the present act, 32 & 33 Vict. c. 71, s. 15 (5) ), not being goods and chattels within the meaning of these clauses. Ex parte Barclay, sup. And this is the rule even when fixtures only are comprised in the mortgage, if annexed to the freehold; secus, if moveable. Whitmore v. Empson, 23 Bea. 313 ; comp. Ex parte Barclay, sup. A mortgage of realty or leaseholds and fixtures does not require registration imder the Bills of Sale Act, post. Mather v. Fraser, sup. Secus, a mortgage of trade or tenant's fixtures only. lb. As to what fixtures are comprised under particular words in mortgages, see Haley v. Hammersley, 3 D., F. & J. 587; Metropolitan Counties, S)-c. v. Brown, 26 Bea. 454 ; and comp. Ex parte Astbury, re Richards, L. E., 4 Ch. 630. Not within Chattels Personal — Bill of Sale.] Under a mortgage 13E11Z. c. s. ^|. (ji^attels personal, usually called a bill of sale, it is in general part of the contract that the mortgagor shall retain possession until default in payment of the loan, and this being consistent with the teruis of the mortgage, it will not be fraudulent (see Twyne's Case, 3 Rep. 80 b) under the 13 Eliz. c. 5 {Martindale v. Booth, 3 B. & Ad. 498), even though its object is to defeat an expected execution. Dar- vill V. Terry, 6 H. & N. 807. Until default, the possession of the mortgagor cannot be interfered with. Fenn v Bittle- ston, 7 Exch. 152; Brierly v. Kendall, 17 Q. B. 937. Bills oi Sale Act. By the 17 & 18 Vict. c. 36 (corresponding Irish Act, 17 & 18 Vict. c. 55), a bill of sale, absolute or conditional, sub- ject or not to any trust, which empowers the grantee or holder to seize and take possession, either with or without notice, immediately or at a future time, of any property or effects comprised therein, must, in the manner mentioned in the act, be filed (or a copy thereof) with the clerk of the judg- ments in the Queen's Bench, within twenty-one days after the making or giving thereof, in the same manner as war- rants of attorney are filed, otherwise the bill of sale will, if possession of such property or effects is retained after the twenty-one days by the person giving the same, be void against assignees in bankruptcy, or under any assignment for the benefit of creditors, and against persons taking the property by process of law (s. 1). Where there are two bills of sale, both filed, but the first defective, see Ed- wards V. English, 7 E. & B. 564. " The expression ' bill of sale' shall include bills of sale, assignments, transfers, Bills of Sale Act. 645 declarations of trust without transfer, and otlier assurances of personal chattels, and also powers of attorney, authorities or licences to take possession of personal chattels as security for any debt, but shall not include the following documents; that is to say, assignments for the benefit of the creditors of the person making or giving the same (see General, ^c. Co. v. Venn, 2 H. & C. 153), marriage settlements (but does include post-nuptial settlements, Foioler v. Foster, 5 Jur., N. S. 99), transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, ware- house-keepers' certificates, warrants or orders for the de- livery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize either by indorsement or by delivery the possessor of such document to transfer or receive goods thereby represented (see Allsop v. Day, 7 H. & N. 457). The expression 'personal chattels' shall mean goods, furniture, fixtures and other articles capa- ble of complete transfer by delivery, and shall not include chattel interests in real estate, nor shares or interest in the stock, funds, or securities of any government, or in the capital or property of any incorporated or joint stock com- pany, nor choses in action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agree- ment, or of the custom of the country, ought not to be re- moved from any farm where the same shall be at the time of the making or giving of such bill of sale. Personal chattels shall be deemed to be in the apparent possession of the per- son making or giving the bill of sale, so long as they shall remain or be in or upon any house, mill, warehouse, build- ing, works, yard, land, or other premises occupied by him, or as they shall be used and enjoyed by him in any place whatsoever, notwithstanding ih&t formal possession thereof may have been taken by or given to any other person" (s.7). The act gives no greater efficacy to bills of sale than they Eeputed owner- previously possessed, and does not prevent the application of *'''■ the reputed ownership clause in bankruptcy. Stansfeld v. Cubitt, 2 De G. & J. 222; Badger v. Shaw, 2 E. & E. 472. See post, p. 669, and the clause under the last act, post, p. 649. The filing or registration of the bill of sale, or copy thereof, must be renewed every five years (29 & 30 Vict. c. 96, s. 4). What will be a sufficient, and not a mere formal posses- sion within the act, see Gough v. Everard, 2 H. & C. I ; Smith V. Wall, 18 L. T., N. S. 182; Ex parte Lewis, re Henderson, L. R., 6 Ch. 626. 646 Mortgages. "Where registra- tion unnecessary. Mortgage of all efEects, Future goods. Licence to talie. Suicide of assured. Registration is unnecessary where the assignee has pos- session of the goods {Marples v. Hartley, 7 Jur., N. S. 446), or takes possession within the twenty-one days allowed for registration. Banbury v. White, 2 H. & C. 300. A bona fide mortgage of all the property of the mortgagee was not an act of bankruptcy within the 67th section of the 12 & 13 Vict. c. 106, _where the substantial consideration was money paid at the time (see Whitniore v. Claridge, 33 L. J., Q. B. 87; Mercer v. Peterson, L. R., 3 Ex. 105), but otherwise where the consideration was an antecedent debt and future advance [Lacon v. Liffen, 4 Giff. 75, affirmed 9 Jur., N. S. 477), or an antecedent debt and small present advance. Penson v. Moon, 15 L. T., N. S. 444. See now 32 & 33 Vict. c. 71, s. 92. Although a grant of goods not in existence is void unless there is some act of ratification when they are acquired {Lunn V. Thornton, 1 C. B. 379), a mortgage will attach on specific future property which it is agreed shall be bound by it, e. g. machinery in addition to or in substitution for the machinery mortgaged {Holroyd v. Marshall, 10 H. L. C. 191), or the future cargo of a ship. Curtis v. Auber, 1 J. & W. 526; see Douglas v. Russel, 1 M. & K. 488; Langton v. Horton, 1 Ha. 549; Belding v. Read, 11 Jur., N. S. 547. But a mere power or licence to a mortgagee to enter and take future property generally, does not specifically attach upon such property, or operate as an assignment of it, though the mortgagee under his power may enter and take it. Reeve Y. fVhitmore, 9 Jur., N. S. 1214; Chidell y. Gals- worthy, 6 C. B., N. S. 471. Policies of Assurance.] Mortgages of life policies already subsisting are usually made by an assignment of the policy, with power to the mortgagee to give receipts for the sum assured and bonuses in the names of the mortgagoi', his executors and administrators. Now, by the 30 & 31 Vict. c. 144, an assignee of a life policy may sue in his own name (s. 1). But notice of the assignment must be given to the office (s. 3). Policies of assurance will be valid in the hands of an assignee for value, notwithstanding the suicide of the as- sured, if, as now is often, if not usually, the case, there is a clause to that effect in the policy. Moore v. Woolsey, 4 E. & B. 243. This condition is for thg benefit of the assured; and where the policy is mortgaged with other property, and the mortgagor commits suicide, the office must pay the sum assured, and has no claim upon the other property mort- Policies of Assurance — Choses in Action. 647 gaged, either for repayment or contribution. Solicitors, SfC. Society V. Lamb, 2 D., J. & S. 251. This principle equally applies where the office itself is the mortgagee, and to the extent of the sum assured, and if the debt is satisfied by it, the office cannot resort to other property comprised in the mortgage. White v. British Empire Co., L. E., 7 Eq. 394. An equitable mortgage of a policy by deposit is a " legal assignment" ■within the terms of a condition giving validity to an assignment, in case of suicide. Dufaur v. Profes- sional Life Assurance Office, 25 Bea. 599 ; Jones v. Con- solidated Investment Assurance Co., 26 Bea. 256. Frequently the insurance is effected at the time of the to whom policy loan and in the name of the lender upon the life of the gageo^beiongs. borrower. In such cases, in the absence of contract, the policy will belong to the former (^Humphrey v. Arabin, LI. & Gr. t. PI. 318; Bruce v. Garden, L. R..-5 Ch. 32; see Foster V. Roberts, 29 Bea. 467; Bell v. Ahearne, 12 Ir. Eq.R. 576), unless the debtor pays the premiums or is charged with them in account with his knowledge (see Bruce v. Garden, sup.) ; in which case the policy will belong to him or his represen- tatives after satisfying the debt. Norland v. Isaac, 20 Bea. 389; Courtenay v. Wright, 2 GifF. 337; Drysdale v. Piggott, 8 D., M. & G. 546; Freme v. Blade, 2 De G. & J. 582. See Gottlieb V. Cranch, 4 D., M. & G. 440 ; Lea v. Hinton, 5 D., M. & G. 823 ; Knox v. Turner, L. R., 9 Eq. 155, as to ' the right to policies on the repurchase of annuities. Life assurance is not a contract of indemnity, but a contract to pay a sum certain in the event of death. Therefore, though the debt may have been discharged, yet, as between the office and the mortgagee, the latter is entitled to the sum assured. Dalby v. In. and Lon. Ass. Co., 15 C. B. 365. Choses in Action.] Debts, reversionary interests in per- sonal estate, and other choses in action, are, like policies, frequently made the subject of mortgages ; and though mort- gages of this description are usually made by deed, this is not essential ; a letter or writing is sufficient. Chowne v. Baylis, 31 Bea. 351. Bills of exchange are not proper sub- jects of mortgages, and are prima facie presumed to be given in part payment as they become due. Hills v. Parker, 14 L. T., N. S. 107, H. L. As a very general rule, the assignee of a chose in action Assigrnee of takes it subject to all the equities to which it was liable in Ste snbject"to the hands of the assignor. Priddy v. Rose, 3 Mer. 86 ; equities aflect- Mangles v. Dixon, 3 H. L. C. 702 ; Re Natal Investment '"^"' Co., L. R., 3 Ch. 355 ; comp. Dickson v. Swansea Rail. Co., L. R., 4 Q. B. 48. The assignment of money payable under 648 Mortgages. To prevent sub- sequent mort- gagee gaining priority. To prevent office or debtor paying assignor. a contract is subject to the conditions of it. If these are not performed by the assignor so that nothing becomes payable under the contract, the mortgagee cannot enforce it. Tooth V. Hallett, L. E., 4 Ch. 242. The assignee may even be hable to equities subsequently attaching. Thus, if an executor assign his reyersionary legacy, and is subsequently guilty of a devastavit, the legacy must make good the loss thereby occasioned. Morris v. Livie, 1 Y. C. C. 380; Irby v. Irby, 25 Bea. 632; and see Willes v. Greenhill, 29 Bea. 376. Notice.'\ In mortgages of policies, shares in companies, and the like, effected or standing in the name of the mort- gagor, notice must be given to the insurance or other company or society ; and where debts or other choses in action are mortgaged, notice must be given to the debtor or trustees of the fund, as the case may be, or it must be proved aliunde that he had notice. Lloyd v. Banks, L. E., 3 Ch. 488. This is necessary, first, in order to prevent a subsequent mort- gagee from gaining priority by giving notice. For notice of the assignment of a chose in action gives priority, and is equivalent to the possession of personalty capable of actual delivery. Dearie v. Hall, 3 Euss. 1 ; Loveridge v. Cooper, ib. 30 ; see Meux v. Bell, 1 Ha. 73 ; Ex parte Boulton, 1 De Gr. & J. 163 ; Morris v. Cannan, 8 Jur., N. S. 653. And in cases of mortgages of policies or shares, it would seem that the actual possession of the policy or certificates is im- material as affecting the priority gained by notice. Foster V. Cockrell, 3 CI. & F. 456 ; see Re BesselVs Trusts, 2 K. & J. 328. Where there is a deposit of a policy with the intention of creating a lien upon it only, and not of passing any interest in the money secured by it, there is or may be a distinction between such a case and an ordinary deposit. Broadbent v. Varley, 12 C. B., N. S. 214 ; see Gibson v. Overbury, 7 M. & W. 555. But a deposit would, as a rule, be held to pass the interest in the money secured by it, and notice must be given. Green v. Ingham, L. E., 2 C. P. 525. Notice, however, is not necessary merely as between an insurance company and an assignee of a policy of the company, where there has been no payment by, or surrender to, the company. Dufaur v. Professional Life Assurance Office, 25 Bea. 599. Secondly. Notice is necessary to prevent the office, debtor or trustee, &c. from paying the sum assured, debt, &c. to the mortgagor or his repi'esentatives (Jones v. Gibbons, 9 Ves. 410) ; and in the case of a policy to prevent the office from accepting a surrender. See Fortescue v. Barnett, 3 M. & K. 36. Notice. 649 Thirdly. Notice is necessary to prevent choses in action operation ot of a particular description (formerly of every description) in bankruptcy, tlie apparent and reputed ownership of the mortgagor from passing to his assignees in the event of his bankruptcy ; for, under the acts prior to that of 1869, 32 & 33 Vict. c. 71, choses in action in general were held to be goods and chat- tels within the reputed ownership clauses. See, as to policies of assurance, Williams v. Thorp, 2 Sim. 257 ; Green v. Ingham, L. R., 2 C. P. 525; shares in companies. Ex parte Lancaster Canal Co., Mont. 116 (see now Ex parte Union Bank of Manchester, L. E., 12 Eq. 354, infra); debts. North \. Gurnet/, 1 J. & H. 509. Now, by the last- mentioned act. Bankruptcy Act, " all goods and chattels being at the commencement of the ' ^ ' bankruptcy in the possession, order or disposition of the bankrupt, being a trader, by the consent and permission of the true owner, of which goods and chattels the bankrupt is reputed owner, or of which he has taken upon himself the sale or disposition as owner," are to be deemed his property; " provided that things in action, other than debts due to him in the course of his trade or business, shall not be deemed goods and chattels within the meaning of the clause" (s. 15) (5). The notice should accurately refer to the property mort- Mode of giving. gaged. Woodburn v. Grant, 22 Bea. 483. It is prudent, though not strictly necessary, to give a written notice. North B. I. Co. V. Hallett, 7 Jur., N. S. 1263; Ex parte Agra Bank, L. E., 3 Ch. 555. Whether knowledge by a trustee, company, &c., derived Knowledge but not from a notice, but aliunde and casually, is equivalent to notice, would seem to be not very clear upon the authorities. In Edwards v. Martin, L. E., 1 Eq. 12], and Re Brown's Trusts, L. E., 5 Eq. 88, it appears to have been considered that knowledge of the assignment derived casually and not from notice was not equivalent to it in a question of priority. But in the later case of Lloyd v. Banks (3 Ch. 488), it was held, that the knowledge of a trustee of a fund of the insol- vency of his cestui que trust derived casually and not from notice, upon which knowledge the trustee acted, was suffi- cient to postpone a subsequent assignee of the cestui que trust (though he had given formal notice) to the assignee in insolvency. See also Ex parte Stewart, 1 1 Jur., N. S. 25 ; Ex parte Agra Bank, L. E., 3 Ch. 555. Notice is to be given by the mortgagee or assignee. By whom. Assignees in bankruptcy were, and the trustee, in any contest for priority depending upon notice, is, subject to the same rules as to notice as other assignees. So assignees in insolvency when the Insolvent Debtors' Act was in force. Re Barr's Trusts, 4 K. & J. 219; Lloyd v. Banks, L. E., 650 Mortgages. Companies. Agents. Trustees. 3 Ch. 488. But if the mortgagee did not give notice, the assignees in bankruptcy were entitled where the question related to the bankrupt's property, and in his possession, whether they had or had not given notice, upon the ground that the property was in the order and disposition of the bank- rupt with the consent of the true owner. Bartlett v. Bartlett, lDeG.&J.127; Ex parte Lucas, SBeGr.k J. IIS ; aeeRe Rawbone, 3 K. & J. 476. J!^otice given after the bankruptcy, of a mortgage before the bankruptcy, of a policy or cho.ie in action, was not sufficient. Re Webb, 36 L. J., Ch. 341 ; Re Lichener, 35 Bea. 317. These rules would now be ma- terially affected by the Bankruptcy Act, 1869 {ante, p. 649), and would have no application in a contest for priority be- tween a mortgagee of choses in action of the bankrupt and his trustee in bankruptcy, except in the case of the mortgage by a trader of debts due to him in the course of business, followed by his bankruptcy. Notice must be given to the party liable, that is, the debtor, insurance company, trustee of the fund, &c., as the case may be. Ex parte M' Turk, 2 Dea. 58. And in the case of companies, notice to the secretary or other authorized officer or agent (Ex parte Hennessey, 2 Dr. & War. 555, 563; Thompson v. Tomkins, 2 Dr. & S. 8); or to the directors, is sufficient {Ex parte Stewart, 11 Jur., N. S. 25; Ex parte Agra Bank, L. R., 3 Ch. 555); but notice to a shareholder is not. Martin v. ^edgwick, 9 Bea. 333. If the company is being wound up, notice to the official liqui- dator is sufficient. Re Breech Loading Co., L. E., 5 Eq. 284. If notice be given to the proper person, he cannot disregard it without making himself personally liable to the mortgagee. Andrews Y.Bousfield, lOBea.511; see Stephens Y.Venables, 30 Bea. 627. In general, notice to a solicitor of a party is the same as notice to the latter. Richards v. Gledstanes, 3 Giff. 298 ; see Atterbury v. Wallis, 8 D., M. & G. 454 ; and cons. Sharps v. Foy, L. R., 4 Ch. 35. But notice to a solicitor concerned for a particular person is not notice in a different transaction in which he is concerned for a different party. Lloyd v. Attwood, 3 De G. & J. 614. And the mere fact that a mortgagee allows the mortgagor, who is himself a solicitor, to prepare the mortgage, will not be sufficient to affect the former with notice of an incumbrance known to the latter. Espin v. Pemberton, ib. 547. As to notice to agents generally, and to agents who are assignors, see Re Hennessy, 2 Dr. & War. 555 ; and to agents or others who have themselves advanced money, see Webster V. Webster, 31 Bea. 393; Somerset v. Cox, 33 Bea. 634. Notice to one of several trustees is sufficient during his lifetime ( Willes v. Greenhill, 4 D., F. & J. 147), though Notice. 651 inquiries should be made of all. See Smith v. Smith, 2 Cr. & M. 231. If only one trustee has had notice, and he dies or ceases to be trustee, a subsequent incumbrancer will gain priority by giving notice to a surviving or other trustee prior to any notice to him by the first incumbrancer. See Timson v. Ramsbottom, 2 Ke. 35 ; Meux v. Bell, 1 Ha. 73. Notice to trustees before they have actually received the trust fund is nugatory. Buller v. Plunkett, 1 J. & H. 441 ; see Somerset v. Cox, 33 Bea. 634. A trustee, pur- chaser or mortgagee of the interest of his cestui que trust, should give notice to one of his co-trustees. Timson v. Ramsbottom, 2 Ke. 35 ; see Ex parte Smart, 2 Mon. & A. 60; Com. Pub. (Forks v. Harley, 23 Bea. 548. If a trustee assign to a co-trustee that is sufficient notice {Broione v. Savage, 4 Drew. 6.35) ; aliter, if he assign to a stranger. lb.; see Willes v. Greenhill, 4 D., F. & J. 147. When a fund is subject to the trusts of a settlement, and is under the control of the trustees of it, and then is assigned to other trustees of another settlement in trust for a particular person, who mortgages, notice should be given to the first trustees who have the fund in their hands. Bridge v. Beadon, L. R., 3 Eq. 664; see Holt v. Dewell, 4 Ha. 447. As to notice by the assignee of freight, see Fetham v. Clark, 1 De G. & S. 307; Gardner -v.Lachlan, 4 M. & C. 129. As against the volunteers. assignor or his representatives (i?e Lowe's Settlement, 30 Bea. 95) ; or as against subsequent incumbrancers having notice of the prior charge ( Warburton v. Hill, 1 Kay, 470), notice is unnecessary. It may be observed, that an assignee of a debt is not bound to give notice of its non-payment to the assignor. Ghjn V. Hood, 1 D., F. & J. 334. Where two assignments are contained in one deed, notice Constrnctive no- of one is not constructive notice of the other. Re Bright, '"^• 21 Bea. 430. See further as to constructive notice, post, tit. " Vendor and Pukchaser." A mortgagee who gives notice has priority over a cestui Declaration of que trust claiming under a declaration of trust, of which no ''^"''" notice has been given. Martin v. Sedgwick, 9 Bea. 333; comp. Newton v. Newton, L. E., 6 Eq. 140. As to the equities between a cestui que trust and mortgagee of shares in a company, see Murray v. Pinkett, 12 CI. & Fin. 764. These rules as to notice do not extend to interests in real Real estate, estate as such {Wiltshire v. Rabbits, 14 Sim. 76; see as to this case, 1 GifF. 376; Wilmot v. Pike, 5 Ha. 14); neither do they to stock or money, which in equity is real estate (Re Carew, 16 W. R. 1077); though notice is necessary of mort- gages of the proceeds of land directed to be sold or mort- 652 Mortgages. gaged {Foster v. Cockerell, 3 CI. & F. 496 ; Consol. ^c. Co. V. Riley, 1 Giffi 371 ; see Lee v. Howlett, 2 K. & J. 531), or of portions directed to be raised by means of a term, or generally of any charge which can only reach the person en- titled in the shape of money. Re Hughes, 2 H. & M. 89, in which Foster v. Cockerell, sup., is explained, and the dis- tinction pointed out between cases of this description and cases of equitable mortgages giving an actual estate or inte- rest in the land. See Barnes v. Pinkney, 36 L. J., Ch. 815. The deposit of a colonial land order does not require notice to be given to the company issuing it. Ex parte Barnett, De G. 194; see Rooper v. Harrison, 2 K. & J. 86. stop order. Notice to trustees before paj'raeut into court. Distringas. Fund in Court.l Where the subject-matter of the mort- gage is a fund in court, a stop order, that the fund shall not be transferred without notice to the mortgagee, is usually obtained and entered at the office of the accountant-general. This is equivalent to notice to the trustees of a fund. The stop order gives priority. Greening v. Beckford, 5 Sim. 195; Swayne v. Swayne, 11 Bea. 463. It also prevented the fund from passing to the assignees of the mortgagor in the event of his bankruptcy, as being in his order and disposi- tion. Bartlett v. Bartlett, 1 De G. & J. 127; see now ante, p. 649. Mere notice to the accountant-general is not equi- valent to a stop order. Warburton v. Hill, Kay, 470. The lien of a solicitor on a fund recovered by him (23 & 24 Vict. c. 127, s. 28) prevails over the stop order of an assignee of the client. Haymes v. Cooper, 33 Bea. 431. Where a stop order has been obtained by A., and the fund is carried over to the account of the mortgagor and his mortgagees as well, a stop order obtained by B., after such carrying over, does not give B. priority over A. Lister v. Tidd, L. E., 4 Eq. 462. Notice to the trustees of a fund before it is paid into court gives priority over a subsequent incumbrancer of it after it is paid in, though the latter alone obtains a stop order. lAeesey v. Harding, 23 Bea. 141; see Brearcliffe V. Dorrington, 4 De G. & S. 122. A stop order only ope- rates in respect of a charge existing at the time of the order. Macleod v. Buchanan, 33 Bea. 234. Where a reversionary interest in goverament stock is mortgaged, it is usual to obtain a distringas, which in practice entitles the mortgagee to eight days' notice from the bank of any application to transfer it, within which time an in- junction to prevent the transfer must be obtained and served. See Dan. Ch. Prac. 1542 ; Re Cross, 1 Dr. & Sm. 580. If the last surviving trustee of stock be dead, notice by dis- Mortgages of Ships. 653 tringas gives priority. See Etty v. Bridges, 2 .Y. C. C. 486. Mortgage of Stock.'\ A stock mortgage is effected by the mortgagee selling out his stock, the price of it being paid to the mortgagor, who in general covenants to replace the same amount of stock. In such cases, though the funds may fall, the mortgagee is only entitled to have the stock replaced. Blyth v. Carpenter, L. E., 2 Eq. 501. In a mortgage of stock, the mortgagee cannot deal with it, as by selling when high and repurchasing when low, so as to make a profit of it for himself. Langton v. Waits, L. R., 4 Ch. 402; and see the judgment of Selwyn, L. J., and observations (ib. 404) on that of the Vice-Chancellor in the court below. L. R., 6 Eq. 165. As to retrausferring the same amount of stock, or the identical stock, on the mortgage being paid ofli see ib. Mortgages of Ships.] The forms of a mortgage and transfer of mortgage of a ship, or share in a ship, are given by the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104. The owners of the ship itself must be registered (ss. 30 et seq.). The property in each ship is divided into sixty- four shares, but with not more than thirty-two registered owners (s. 37), unless by devolution of shares there happens to be a greater number {ib.). The mortgage by any owner or part owner must also be registered (ss. 66, 67), and must be in the prescribed form. Liverpool B. Bank v. Turner, 2 D., F. & J. 502. Priority depends on the date of registra- tion, not of the mortgage (ss. 67 — 69). A mortgagee of a ship has a right to the earnings only from the time he takes possession ( Gardner v. Cazenove, 1 H. & N. 423 ; Willis v. Palmer, 7 C. B., N. S. 340) ; up to that time all contracts by a mortgagor which do not impair the right of the mort- gagee are valid. Collins v. Lamport, 11 Jur., N. S. 1. When the mortgagee in possession employs the ship as a prudent owner would do in the ordinary course of business, it is at the risk of the mortgagor ; if otherwise, at his own risk. Marriott v. Anchor Rev. Int. Co., 2 Giff. 457; affirmed 7 Jur., N. S. 713 ; see Europ. Co. v. R. Mail Co., 4 K. & J. 676 ; De Mattos v. Gibson, 1 J. & H. 79. A transfer of a ship absolute in terms may be shown to be a mortgage only. Ward V. Beck, 13 C. B., N. S. 668. Every mortgagee may sell the ship or share in respect of which he is registered (s. 71). The bankruptcy of the mortgagor does not affect the mortgage (s. 72). The mortgage is discharged by an entry which is made in the register on production of the 654 Mortgages. Railway deben- tures. Shares in com- panies. mortgage deed with the receipt for the mortgage money duly indorsed thereon (s. 68), which entry is conclusive. Bell V. Blyth, L. E., 4 Ch. 136. By the 25 & 26 Vict. c. 63, s. 3, courts of equity have jurisdiction over all equitable rights and claims aifecting .ships, and such equities may be enforced against owners and mortgagees of ships. And see Samuel Y.Jones, 7 L. T., N. S. 760 ; Ward v. Beck, sup. The deposit of a registered mortgage of a ship creates a valid charge as against the assignees of the depositor. Lacon v. Liffen,, 4 GiiF. 75. But the certificate of registry cannot be deposited so as to create an equitable mortgage. 25 & 26 Vict. c. 63, s. 50. The Admiralty Court has jurisdiction over claims arising out of mortgages duly registered under the Act of 1854, 24 & 25 Vict. c. 10, s. 11. Railway Debentures.} A mortgage or bond of a railway company under the 8 Vict. c. 16 (the Companies Clauses Consolidation Act), does not give the mortgagee a charge upon the surplus lands of the company or proceeds of the sale of them, nor the right to a receiver. The " under- taking" pledged by such a mortgage is the going concern created by the act, which cannot be interfered with by the mortgagee. Gardner y. London, Chatham and Dover Rail. Co., L. E., 2 Ch. 201. A legal mortgage of shares in a joint stock company under the Act of 1862 maybe effected by an actual transfer of the shares, but the company is not bound to take notice of, and is not to register, any trusts. 25 & 26 Vict. c. 89, s. 30. Interests under wills. As next of Icin ox -heir. Expectancies.} Even prior to the statute presently no- ticed, it was held that expectancies, for instance, interests under the will (BecMey Y.Newland, 2 P. W. 182; Bennett Y. Cooper, 9 Bea. 252), or as presumptive next of kin (Hinde Y. Blake, 3 Bea. 234 ; Meek v. Kettlewell, 1 Ph. 342), or heir at law (Hohson v. Trevor, 2 P. W. 191 ; Wethered v. fVethered, 2 Sim. 183), of a living person, were capable of being dealt with or made the subject of an assignment in equity for a good consideration. But in Carleton v. Leigh- ton (3 Mer. 667), it was held, that the interest of an heir apparent or presumptive was not an interest or possibility 8 & 9 Vict. c. 106. capable of being made the subject of a contract. By the 8 & 9 Vict. c. 106, however, whatever might have been the true rule before, contingent, executory, and future interests and possibilities coupled with an interest, in hereditaments of any tenure, also rights of entry, immediate and future, vested and contingent, may be disposed of hy deed; but no disposition by force only of this act will defeat or enlarge an estate tail (s. 6). Fay, Salaries, Pensions, ^c. 655 Reversionary Interests.] Mortgages of reversionary in- terests were subject to the same rules with regard to under- value as sales of such interests. Bromley v. Smith, 26 Bea. 644 ; see Tottenham v. Green, 32 L. J., Ch. 201. Bj the 31 & 32 Vict. c. 4, honafide purchases (including mortgages) of reversionary interests are not to be set aside merely on the ground of undervalue. Notwithstanding this act the court has still jurisdiction to relieve in the case of uncon- scionable bargains. Miller v. Cook, L. E., 10 Eq. 641. Pay, Salaries, Pensions, SfC.~\ The assignment of the Not in general pay, half-pay or pensions of public servants is in general in- ^^'B""'"'"- valid. The pay (Barwick v. Reade, I H. Bl. 627), or half- pay (Flarty v. Odium, 3-T. R. 681), of an officer cannot be assigned. By the 47 Geo. 3, sess. 2, c. 25, also, assignments of or contracts or securities in respect of any pay, pension, allowance or relief payable to any officer or person who has served in the king's forces, or to his widow, or to any person receiving any allowance or pension on the compassionate list, or any pension, allowance or relief in respect of any military service, are void (ss. 1, 4). See Lloyd v. Cheetham, 3 Giff. 171. In Knight v. Bulkeley (27 L. J., Ch. 592), this statute was not cited. By the 1 Geo. 2, c. 14, assignments of the pay or wages of any seaman in the service of the crown are void (s. 7). By the 11 Geo. 4 & 1 Will. 4, c. 20, assign- ments by any person entitled to any marine half-pay, or by any person entitled to any allowance from the compassionate fund, or to any pension as the widow of an officer of such half-pay, allowance or pension, and assignments of wages, half-pay, pension, gratuities or other allowances payable in respect of the services of any petty officer or seaman or non- commissioned officer of marines, shall be void (s. 47). But this provision, does not apply to the wages, pay and other allowances actually due of any commission or warrant officer in the navy ; for the 54th section of this act provides for payment to the assignee thereof authorized to receive the same, or to the first of such assignees if more than one. It has been held, that a pension given by the late East Pensions. India Company may be assigned. Heald v. Hay, 3 Giflf. 467; Carew v. Cooper, 4 Giff. 619; but see this case on ap- peal, 10 Jur., N. S. 429. So any other pension for past services only. Davis v. D. of Marlborough, 1 Sw. 74. The commission of an officer cannot be pledged or mort- gaged {Collyer v. Fallon, T. & E. 459); but, if sold, an equitable assignment may be made of the purchase-money in the agent's hands. Collyer y. Fallon, sup.; see Somerset V. Cox, 33 Bea. 634. It seems, a pension given as compen- iTniess given as compensation. 656 Mortgages. Profits of follow- ship. Salary of a judge. Ecclesiastical benefices. Partnership General opera- tion of tlie Fac- tors Acts. sation for the loss of a place in the customs is assignahle ( Tunstall v. Boothhy, 10 Sim. 542; comp. Wells v. Foster, 8 M. & W. 149), and the profits of a college fellowship {Feistel v. King's College, Cambridge, 10 Bea. 491), or emoluments of a canon of a cathedral where there is no cure of souls, are assignable. Greenfell v. Dean, ^c. of Wind- sor, 2 Bea. 544. But a perpetual pension granted by the country as a mark of national gratitude for public services and for the support of a dignity cannot be assigned. Davis V. D. of Marlborough, \ Sw. 74. The salary of a judge which is essential to the due support of his position is not in general assignable. See Arhuthnot V. Norton, 5 Moo. P. C. 219, 230. But this rule does not apply to the assignment of a sum of money payable by the government to the personal representatives of a judge after his death, lb. Charges upon ecclesiastical benefices are illegal. 13 Eliz. c. 20. Although this statute was repealed by the 43 Geo. 3, c. 84, the latter statute being repealed by the 57 Geo. 3, c. 99, the first statute was revived. See Hawkins v. Gathercole, 1 Jur., N. S. 481. But by the 17 Geo. 3, c. 53, incumbents are, in certain cases, authorized to borrow money for the building or repair of the parsonage house. The mortgagee of a share of partnership assets and profits takes subject to all the equities of the co-partners of the mortgagor. Kelly v. Hatton, L. R., 3 Ch. 703. Mortgages or Pledges by Factors.] The Factors Acts are, the 4 Geo. 4, c. 83; 6 Geo. 4, c. 94; and 5 & 6 Vict. c. 39. The general operation of these statutes is thus stated in the following note (2 Chit. Statutes, p. 56, 3rd edit.):— "The effect of the statutes taken conjointly may be shortly stated as follows: first, where goods, or documents for the delivery of goods, are pledged as a security for present or future ad- vances" (not for a pre-existing liability or debt; Macnee v. Gorst, L. R., 4 Eq. 315; see Jewan v. Whitworth, 2 Eq. 692), " with the knowledge that they are not the property of the factor, but without notice, that he is acting without authority in such case, the pledgee acquires an absolute lien. Secondly, where goods are pledged by a factor, without notice to the pledgee that they are the property of another, as a security for a pre-existing debt, in that case the pledgee acquires the same right as the factor had. Thirdly, where a contract to pledge is made in consideration of the delivery of other goods or documents of title, upon which the persoii delivering them up had a lien for a previous advance (which is deemed to be a contract for a present advance), in that To 'pay Principal, 657 case the pledgee acquires an absolute lien to the extent of the value of goods given up. But these acts must be under- stood as applying only to persons intrusted as factors or agents, and not to the case of a party in possession in his own right. Jauherry v. Britten, 5 Scott, 655." The acts are hmited to mercantile transactions. FFood v. Rowcliffe, 6 Ha. 191. CHAPTER V. OF THE USUAL COVENANTS AND PROVISIONS IN MORTGAGES. To pay Principal .. .. 657 Jfot to call it in or Pay off for a certain Time 657 To pay Interest .. .. 658 As to reduction of . . 658 Converting Interest into Principal .. . . 658 Under Payments . . 658 No Covenant to pay In- terest . . . . 658 To insure . . . . . . 659 Prior to and since 23 ^~ 24 Vict. u. 145 . . 659 For Title 659 Enjoyment hy Mort- gagor until Default , That Mortgagee may enter and talte pos- session after Befault. Attornment and Power of Distress 660 659 660 To pay Principal.'] The covenant to pay the mortgage covenant to pay debt is usually the first covenant in a mortgage deed, and p''™"?'''- the day of payment is generally six months after the date of the deed. If it be payable by instalments, a proviso that the whole shall become payable on default in payment of any instalment, is valid. Sterne v. Beck, 1 D., J. & S. 595. The absence of a covenant to pay the mortgage debt is in general immaterial (ante, p. 6iJ7). A covenant not to call in the mortgage debt for a certain Not to caiiin for time, on performance by the mortgagor of the covenants in "'^'rta'ntinie. the mortgage deed, is common. A receipt of the interest after it becomes due is a waiver of the breach of covenant, though accepted after notice by the mortgagee that the agreement was no longer binding. Langridge v. Paine, 2 J. & H. 423. Where there is a covenant not to call in for a certain time, there is an implied stipulation, if there be none expressed, that the postponement is conditional on punctual payment of interest, and, when the property is leasehold, performance of covenants; if the mortgagor make default in either of these respects, the mortgagee's remedies by sale or foreclosure will immediately arise. Seaton v. Twyford, L. R., 11 Eq. 591. w. u u 658 Mortgages. Not to pay off. Covenant to pay interest. Not fixed by the parties. Covenant as to reduction of. Converting inte- rest into principal. Under payments. No covenant to pay Interest. This covenant is commonly connected with a correspond- ing covenant on the part of the mortgagor not to pay off before the time limited for the mortgagee not to call in. Such a covenant in a mortgage by a client to his solicitor not to pay off for twenty years, is, however, unreasonable, and will not be enforced in equity. Cowdry v. Day, I Giff. 316; and see Talbot v. Braddil, 1 Ver. 183. To pay Interest.] There is generally a covenant to pay interest iu the mortgage deed, but though interest may not be expressly reserved, it is nevertheless payable on mort- gage debts, unless in certain exceptional cases (see Thomp- son V. Drew, 20 Bea. 49, post, p. 659); and it is immaterial whether the mortgage be legal or equitable. Carey v. Doyne, 5 Ir. Gh. E. 104; Ashwell y. Staunton, 30 Bea. 52. But if the deposit be as a security for a debt not in itself carrying interest, it may be doubtful whether this rule will apply. Ashton v. Dalton, 2 Coll. 565. Where the rate of interest is not fixed by the parties, it will be settled by the court at 5Z. per cent. Ashwell v. Staunton, sup. Interest runs from day to day. Wilson v. Harman, 2 Ves. sen. 672, 673. The usury laws being now repealed (17 & 18 Vict. c. 90), there is no legal restriction as to the rate of interest, except under the Pawnbrokers' Acts. But the repeal of these laws has not affected the right of the court to give relief against unconscionable bargains. Miller v. Cook, L. R., 10 Eq. 641 ; see Tyler v. Yates, L. R., 6 Ch. 665. An agreement for the reduction in the rate of interest on punctual payment is valid, and if not so paid, the higher rate may be enforced (see Stanhope v. Manners, 2 Ed. 197); but an agreement for increasing the rate of interest in default of punctual payment is a penalty, and will be re- lieved against. Strode v. Parker, 2 Ver. 316; Nicholls v. Maynard, 3 Atk. 520; Stains v. Banks, 9 Jur., N. S. 1049. Obviously the object proposed by the latter method can be effected by the former. A parol agreement subsequent to the mortgage, to take a less rate of interest, has been held to be binding. Milton v. Edgeworth, 5 B. P. C. 313. The mortgagor and mortgagee may agree that interest shall be converted into principal, but this cannot be done as against later incumbrances, of which the mortgagee has notice. Dighy v. Craggs, Amb. 612. If less than the agreed interest has been paid by mistake the amount unpaid may be recovered on the mistake being discovered. Gregory v. Pilkington, 26 L. J., Ch. 177. Where there is no covenant to pay interest, and the mort- Covenants to insure — For Title. 659 gagee agrees on payment of principal to reconvey, bo interest is payable. Thompson v. Drew, 20 Bea. 49. If the mort- gage deed provides for the case of the mortgagee expending money pursuant to the provisions of the deed, interest is usually made payable on the money so expended. And interest on proper although there may be no express provision, a mortgagee ''^p^'""''"^^- properly expending money for the support of his security will in general be allowed interest on such money, as where it is laid out in lasting improvements ( Quarrell v. Beckford, 1 Madd. 269, 281), in supporting the mortgagor's title {God- frey V. Watson, 3 Atk. 518), in keeping up life policies {Bellamy v. Brickenden, 2 J. & H. 137), or the like; see, for the limits of this doctrine, post, p. 672. To insure.'] Prior to the 23 & 24 Vict. c. 145 (28th Aug. covenunt to 1860), in the absence of any express agreement upon the point, a mortgagee could not insure the mortgaged premises and charge the expenses of insurance and premiums against the mortgagor. Dohson v. Land, 8 Ha. 216 ; Bellamy v. Brickenden, 2 J. & H. 137. Now, by this statute (where its operation is not expressly excluded (s. 34) ), where any principal money is secured by deed upon any hereditaments, the person to whom it is payable shall, after the expiration of one year from the time when the money became payable according to the terms of the deed, or after any interest thereon shall have been in arrear six months, or after any omission to pay any premium which ought to have been paid by the mortgagor, have (amongst other powers, and to the same extent as if in terms conferred by the mortgagor) a power to insure and keep insured the whole or any part of the property (whether aflB.xed to the freehold or not) which is insurable, and to add the premiums to the principal at the same rate of interest (s. 11, subs. 2). For Title.} The mortgagor's covenants for title are almost Covenants tor invariably unqualified ones, not limited to the acts of himself ''"°' , "^ K . . J 1 • TT ] J.1 J. ^ Are unqualifled. and persons claiming under bim. Under the covenant for further assurance, he must make any further assurance ne- cessary to make good or support the mortgage, but not to release his equity of redemption. Atkins v. Uton, 1 Ld. Eaym. 36. And if the mortgagor's title be defective at the time of the mortgage, but afterwards becomes good, this will enure to the benefit of the mortgagee. Smith v. Baker, 1 Y. C. C. 223. A covenant that the mortgagor shall enjoy the premises That mortgagor until default gives him an interest in the meantime in the a^f "uf"'"'' "°"' nature of a tei-m of years. Wilkinson v. ffall, 3 Bing. N. C. uu2 660 That mortgagee may enter after default. Mortgages. 508. Where the mortgagor remains in possession after de- fault, he would seem to be tenant at sufferance ( Thunder v. Belcher, 3 Ea. 447; Sm. L. C, vol. 1, pp. 536, 537); or, as sometimes described, tenant at will quodammodo. Moss v. Gallimore, Doug. 279. A covenant that the mortgagee may enter and take per- sonal chattels after default of payment on demand, does not entitle the mortgagee to seize immediately on default, but within a reasonable time. Brighty v. Norton. 3 B. & S. 305- Toms V. Wilson, 4 B. & S. 455; Massey v. Sladen, L. E., 4 Ex. 13. 3 , , Attornment. Power of distress. Effect of attorn- ment clause. Attornment and Power of Distress.] If the mortgagor attorn tenant to the mortgagee at a rent equivalent to the interest, this enables the mortgagee to distrain. Morton v. Woods, L. E., 4 Q. B. 293. And if the mortgagor attorn tenant to an agent of, or receiver for, the mortgagee, such agent or receiver, although he may have no reversion in the premises, may distrain. Jolly v. Arbuthnot, 4 De G. & J. 224. Where the attornment clause is intended to secure the pay- ment of specific sums, the mortgagee should not distrain for any other sums, though the attornment clause may be in terms larger than is required for the purpose intended. Hampson v. Fellows, L. R., 6 Eq. 575. As to giving a right or licence to distrain without attorning tenant, see Doe v. Goodier, 10 Q. B. 957; Truman v. Edwards, 2 Ex. 732. Such a licence would seem not to transferable. Brown v. Metropolitan Society, 1 E. & E. 832, 837. The attornment clause does not create such a tenancy as will entitle the mortgagor to notice to quit before the mortgagee brings ejectment or sells under a power of sale, at all events when it is stipulated that no such notice need be given. Metropolitan, S^c. So- ciety V. Brown, 4 H. & N. 428. See as to the nature of the tenancy created, Morton v. Woods, sup. If the power of distress under the attornment clause be intended to be exer- cised so as to enable the mortgagee to recover principal as well as interest and other outgoings, it should be so expressly stated, otherwise a distress to recover any part of the prin- cipal will not be good. Sampson v. Fellows, L. E., 6 Eq. 575. See further as to the operation of the attornment clause, Walker v. Giles, 6 C. B. 662 ; Pinhorn v. Souster, 8 Ex. 763. As to actions on covenants in mortgage deeds; the right to bring ejectment; powers of sale; and foreclosure suits, see post, Chap. IX. Of the Equity of Redemption. 661 CHAPTER VI. or THE EQUITY OF REDEMPTION. Subject to incidents of ordi- nary Mstates .. .. 661 To Curtesy — Domer .. 661 Second Mortgage, first concealed .. . . 661 Payment on or before day of Redemption . . . . 661 Wliere Six Months' no- tice necessary Day of Redemption in Bill of Sale . . Agreement to take a less Sum on a particular JOay Agreement to release . . Who may redeem — Redemp- tion Suit .. In Redemption Suit. Money must be paid at the Day . . 661 .. 662 662 662 662 .. 664 W7io may redeem— Redemp- tion Suit — continued. Just Allowances • . 664 Plaintiff must offer to pay wliat is due . . 664 Tinder Building Society Mortgages .. .. 665 Several Estates in Mortgage • — Right of Consolidation Where Rule does not apply .. ..666 Devolution of Equity of Re- demption .. .. ., 666 Exoneration . . . . 666 Contribution .. . . 667 Purchase of Equity of Re- demption . . . . .. 667 Effect mhere there are several Mortgages . . 667 Subject to incidents of ordinary Hsfate.] Some of the general principles affecting an equity of redemption have already been stated (ante, p. 626). They will now be con- sidered more in detail. An equity of redemption may be dealt with and is subject subject to cur- io all the ordinary incidents of an equitable estate, for in- *^^ ""* '"'^"■ stance, curtesy (Casborne v. Scarfe, 1 Atk. 605), and dower in cases where the widow is dowable of a trust estate. Ante, p. 354. It makes no difference that the proviso for redemption is contained (as formerly it frequently was) in a separate deed. See Manlove v. Bale, 2 Ver. 84. By a statute still in force (4 & 5 W. & M. c. 16), it is in Barred by mort- substance enacted, that debtors upon judgment statute, &c., fSa^mortgage voluntarily given, afterwards executing mortgages, and per- and giving no no- y ° . J , • ■ .,1," X ■ • tice of first, sons mortgaging and mortgaging again without giving no- tice to the second incumbrancers, are to lose their equity of redemption (ss. 2, 3). The statute is penal, and will be con- strued strictly. An equitable mortgagee by deposit of deeds is not a second incumbrancer within the meaning of the act. Kennard v. Futvoye, 2 Giff. 81. A biU will not lie against a mortgagor for a forfeiture under the act. S. C. Where the right to redeem is barred by the Statute of Limitations, see ante, p. 533. Payments on or before Day of Redemption.] A mort- Where notlca necessary. 662 Mortgages. Day of redemp- tion in bili of sale. Agreement to"" taJte less on pay- ment on parti- cular day. Agreement to release. Who may redeem. Assignees. gagor cannot before the day of redemption redeem by pay- ment of principal and interest up to the day mentioned in the proviso for redemption. Brown v. Cole, 14 Sim. 427; Burrough v. Cranston, 2 Ir. Eq. 203. See, however, 'Tai- hot V. Braddil, 1 Ver. 183, and Harding v. Pingey, 10 Jur., N. S. 872, case of a trust for sale. And if the mortgagee be not paid off on the day named for redemption, he is entitled to six months' notice of payment (Sharpnell v. Blake, 2 Eq. Ca. Ah. 603), and the notice must be clear. Brown v. Lockhart, 10 Sim. 420, 424. In default of notice the mort- gagee is in general entitled to six months' interest. See Bartlett v. Franklin, 36 L. J., Ch. 671 ; Letts v. Hutchins, 6 W. N. 249. In a mortgage of chattels a proviso for redemption on a day named, or such earlier day as the mortgagee shall re- quire by notice, must have a reasonable construction, and a notice to pay on the day on which it is served is unreason- able. Rogers v. Mutton, 111. h IS. 733; Brighty v. Norton, 3 B. & S. 305. Where the mortgagee agrees to take a portion of the mortgage debt in lieu of the whole upon payment on a given day, the court cannot relieve against the effect of its non- payment on that day. Ford\. E. of Chesterfield, 19 Bea. 428; see Thompson v. Hudson, L. R., 4 H. L. C. 1. An agreement by a mortgagor in possession to give up possession, and if required to release his equity of redemp- tion, but which is not acted upon for many (twelve) years, the mortgagor continuing in possession, will be considered as waived by mutual consent. Rushbrook v. Lawrence, L. E., 8 Eq. 25; 5 Ch. 3. Who may redeem — Redemption Suit.'\ As a general rule, all persons may redeem who have an interest in the property subject to the mortgage. Assignees. Thus, the assignees of the mortgagor may redeem (see Tomlinson v. Gregg, 15 W. E. 51 ; Winter- bottom V. Taylor, 2 Drew. 279), and assignees (formerly, now the trustee) in bankruptcy. Ex parte Alsager, 2 M., D. & D. 328. A creditor, who is plaintiff in a creditors' suit, may, after a decree for sale, redeem. Christian v. Field, 2 Ha. 177. The devisee (Lewis v. Nangle, 2 Ves. sen. 431), but not the personal representatives of the mortgagor, may redeem where the mortgage is in fee. Catley v. Sampson, 33 Bea. 551. A dowress may redeem. See Swannock v. Lyford, Amb. 7; Jackson v. Parker, ib. 687. fflio may redeem. 663 In cases of escheat and forfeiture, where the lands in Escheat and tor- mortgage have escheated for want of heirs, the superior '^""''^ <^'=«' lord may redeem, if the mortgage is by demise ( Visct. Downe V. Morris, 3 Ha. 394) ; but otherwise if the mortgage is in fee. Burgess v. Wheate, 1 Ed. 210, 256; Beale v. Symonds, 16 Bea. 406. But the equity of redemption is assets for payment of the mortgagor's debts. Ih. Where there is a forfeiture for crime, the crown may redeem. A.-G. v. Crofts, 4 B. P. C. 136. In a foreclosure suit by an equitable mort- gagee of freeholds {Sutton v. Smith, 10 Jur., N. S. 557, n.) or leaseholds {Hancock v. A.-G., ib.), where the mortgagor has been convicted of felony, the court will direct a sale, the purchase-money to be paid into court, the plaintiff to be satisfied principal, interest and costs, the attorney-general to be at liberty to apply as to the balance. The heir or customary heir may redeem {Pym v. Bowre- Heir. man, 3 Sw. 241, n. ; Lloyd v. Wait, 1 Ph. 61) ; but if the transaction was not in fact a mortgage, but an irrevocable conveyance to trustees to sell and pay debts, with a trust of the surplus for the grantor, his executors or administrators, his heir has no equity. Griffith v. Ricketts, 7 Ha. 299. A joint tenant of the equity of redemption may redeem. Joint tenant, but he must redeem the whole. Waugh v. Land, G. Coop. 130 ; see 1 Powell on Mortgages, by Coventry, 342, n. 7 ; also Wynne v. Styan, 2 Ph. 303, 306. Jointress. As to redemption by a jointress, see Flud y. jointress. Flud, 2 Fr. 210. Judgment creditors. Stonehewer v. Thompson, 2 Atk. Judgment oredi- 440 ; see JVeate v. D. of Marlborough, 3 M. & C. 407 ; '°"- Jefferys v. Dickson, L. R., 1 Ch. 183. Under the 27 & 28 Vict. c. 112, s. 1, although there can be no charge until the land is taken in execution by virtue of the writ of elegit, and judgments do not affect the land at the date of the decree, judgment creditors are nevertheless entitled to redeem if they acquire a charge by issuing such writs and obtaining a return from the sheriff within six months from the date of the decree. Mildred v. Austin, L. E., 8 Eq. 220 ; see Thornton v. Finch, 4 Giff. 515 ; Re Cowbridge Rail. Co., L. R., 5 Eq. 413 ; Guest v. Cowbridge Rail. Co., L. R., 6 Eq. 619. I^unatics' committees may redeem out of rents and profits. Lunatics' commit- but they should obtain an order of the court. See Ex parte '^^'• Grimstone, Amb. 706. Legatees. As to the rights of legatees whose legacies are Legatees. charged on the mortgaged estates, see Falkner v. Daniel, 3 Ha. 199; Bachelor v. Middleton, 6 Ha. 78. The mortgagor of course may redeem, and the mortgagee Mortgagor. 664 Mortgages. Mortgagees— Puifine. Kemalnderman — Reversioner. Tenant in com- mon. Tenant in tail. Tenant for life. Volunteers. In redemption suit money must be paid at the day. Just allowances. Plaintlit in re- demption suit must offer to pay what is due. cannot dispute his right or title to do so, and on payment of what is due must reconvey. Tasher v. Small, 3 M. & C. 63, 70. And if the estate of the wife be mortgaged by her and her husband, the equity of redemption being reserved to her, she may redeem. Gleaves v. Paine, 1 D., J. & 8. b7. On tender by a person having a partial interest giving a right to redeem, the mortgagee is bound to convey, but the con- veyance should reserve the equities of the other persons interested. Pearce v. Morris, L. R., 5 Ch. 227. A mort- gagee, however, is not bound to convey the legal estate in the mortgaged property and to deliver up the title deeds to a person from whom he has accepted payment of principal, interest and costs, if that person has only contracted to pur- chase a part of the mortgaged estate, and has not accepted the title. lb. Mortgagees. Puisne mortgagees may redeem. Fell v. Brown, 2 B. C. C. 276 ; Palk v. Clinton, 12 Ves. 48 ; see Rhodes v. Buckland, 16 Bea. 212. A first mortgagee ought, without judicial proceeding, to accept payment of a second mortgagee, and thereupon convey the mortgaged estate to him, with or without the concurrence of the mortgagors. Smith V. Green, 1 Coll. 555; cons. Eamsbottom v. Wallis, 5 L. J., N. S., Ch. 92. Remaindermen or reversioners may in general redeem. Raffety v. King, 1 Ke. 601, 617. Tenant in common of the equity of redemption may re- deem. Wynne v. Styan, 2 Ph. 303, 306. Tenant in tail, who has joined the tenant for life in a mortgage, may redeem. Play ford v. Play ford, 4 Ha. 546. Tenant for life may redeem, but he must hold the equity of redemption upon the trusts of the instrument creating the life estate. Wicks v. Scrivens, 1 J. & H. 215; see Pawley V. Colyer, 16 W. R. 114. Volunteers may redeem. Howard v. Harris, 1 Ver. 193. In a redemption suit the money must be paid at the day fixed, or, unless under very special circumstances, the right of redemption is gone for ever {Novosielski v. Wakefield, 17 Ves. 417; Faulkner v. Bolton, 7 Sim. 319); though, if a redemption bill be dismissed for want of prosecution, the mortgagor may file another. Hansard v. Hardy, 18 Ves. 460. The mortgagee is entitled to payment of all costs and other monies agreed to be paid by the mortgagor, in addition to principal and interest, and such costs, &c. are recoverable under "just allowances." Blackford v. Davis, L. E., 4 Ch. 304. In a redemption suit the plaintiff must ofier to pay what is due. Harding v. Pingey, 10 Jur., N. S. 872; Hughes Who may redeem, Sfc. — Right of Consolidation. 665 V. Cook, 34 Bea. 407. If nothing be found due to the mort- gagee, he must pay the costs, but not where something is due to him at the time of the filing of the bill. Barlow V. Gains, Morris v. Islip, 23 Bea. 244. And if the mort- gagor makes an unconditional tender of a sum which the mortgagee refuses to accept, he must bear the costs of a suit if the amount tendered was all that was due. Harmer v. Priestley, 16 Bea. 569; Hosken v. Sincock, 11 Jur., N. S. 477. When the solicitor of a mortgagor pays off a mortgage, it wiU be presumed that he did so on behalf of his client. Ward \. Carttar, L. E., 1 Eq. 29. If by the rules of a building society an advanced member Under mortgages may redeem on payment of his subscription up to a certain cieu^f ^ ^°" time, he is entitled to do so, although he may be liable to pay subscriptions after that time (Sparrow v. Farmer, 26 Bea. 511 ; see Farmer v. Smith, 4 H. & N. 196; Handley v. Farmer, 29 Bea. 362), the terms of redemption depend of course upon the deed, and are not always the same in every society. See other cases of redemption, Fleming v. Self, 3 D., M. & G. 997 ; Mosley v. Baker, ib. 1032 ; Smith v. Pilkington, 1 D., F. & J. 120. To entitle a mortgagee to redeem, he must pay the reasonable fines imposed by the society. Parker v. Butcher, L. R., 3 Eq. 762. Several Estates in Mortgage —Right of Consolidation.'] Nature of right. It has long been settled, that where there are two or more mortgages of different properties or estates from the same mortgagor to the same mortgagee, the latter may require that one alone shall not be redeemed, but that all shall be redeemed at the same time. Ex parte Carter, Amb. 733 ; Jones V. Smith, 2 Ves. jun. 376; see Tassell v. Smith, 2 Be G. & J. 713; JVeve v. Pennell, 2 H. & M. 170; Selby v. Pomfret, 3 D., F. & J. 595. So a person entitled to the equity of redemption in part of the mortgaged property cannot separately redeem such part. Sish v. Hopkins, Amb. 793; see Cholmondeleyx. Clinton, 2 J. & W. 1, 134 ; Thornycroft v. Crockett, 2 H. L. C. 239. And where the Mortgages ori- mortgages were originally distinct, if at the time of their Rtaauy distinct, becoming united in one mortgagee the equities of redemption are vested in the same person, he may require all the mort- gages to be redeemed ( Vint v. Padget, 2 De G. & J. 61 1 ) ; but otherwise, it has been held, if in different persons. White V. Hillacre, 3 Y. & C, Ex. 597. But the last cited case was disapproved (jf in Beevor v. Luck, Same v. Lawson (L. E., 4 Eq. 537), in which it was held by Wood, V.-C, that a purchaser of an equity of redemption from the mortgagor would not be permitted to redeem his estate without also 666 Mortgages. Where rule does not apply. redeeming all other mortgages by the same mortgagor which had become united in the same person, whether the union had taken place before or after the purchase, and whether the purchaser had or had not notice of the oUier mortgages ; and that there was no difference in this respect between a purchaser for value and a mortgagee of an equity of re- demption. It was held, also, that purchasers of different equities of redemption were entitled to redeem, according to the date of their different purchases, as in the case of first and subsequent mortgagees, following on the last point, Titley V. Davies, 2 Y. C. C. 399, n., not Edwards v. Martin, 4 Jur., N. S. 1088; &6eiLd.Keiisington.Y.Bouverie, 19Bea. 39. The mortgagee may avail himself of his right, whether in a redemption or foreclosure suit ( Watts v. Symes, 1 D., M. & Gr. 240; Selhy v. Pomfret, sup., overruling Holmes v. Turner, 7 Ha. 367, n.), and it makes no difference that a transferee, on taking a transfer of the several securities, has notice of a charge subsequent to them. Vint v. Padget, 2 De G. & J. 611. The right will prevail against the pur- chaser of the equity of redemption of one estate, even although he had no notice of the other being mortgaged {Jreson v. Denn, 2 Cox, 425) ; and does not, like the right to tack {post, Chap. X.), depend upon the possession of the legal estate. Neve v. Pennell, 2 H. & M. 170. The rule does not apply where two or more, as A. and B., mortgage their several and distinct estates, or several and distinct interests in one estate, to C, and then one B. mort- gages his estate or interest to C, for a further advance to himself, in such a case C. cannot claim to hold as against A. in respect of the further advance to B. Jones v. Smith, 2 Ves. jun. 376; Bowker v. Bull, 1 Sim., N. S. 29; see Aid- worth v. Robinson, 2 Bea. 287. Devolution of Equity of Redemption.'] An equity of redemption in real estate, if not devised, descends on the death of the mortgagOl- intestate, to the heir who would have been entitled had there been no mortgage; for instance, if the lands are borough English or gavelkind, to the heir ac- cording to the custom of those lands. Fawcett v. Lowther, 2 Ves. sen. 304. Formerly, the heir or devisee of the mortgaged property was, as a general rule, entitled to have it exonerated from the mortgage out of the personal estate of the mortgagor. But this is altered with reference to, wills and instruments made on and after the 1st January, 1855, and hereditaments in mortgage, specifically devised, or suffered to descend to the heir, are now primarily charged with the mortgage Purchase of Equity of Redemption. 667 debt, unless a contrary intention is signified by the mort- gagor. 17 & 18 Vict. c. 113. See this act more fully stated in tit. " Wills." The equity of redemption of chattels real, and personal personal estate, estate, devolves upon the personal representatives of the mortgagor, in the same manner, and for the same purposes (subject to the mortgage), as the mortgaged property would have done if there had been no mortgage. After the death of the mortgagor, the mortgagee may either file a bill speci- fically to enforce his security, or for administration gene- rally. Dighton v. Withers, 31 Bea. 423; see Wade v. Ward, 4 Drevr. 602. The 17 & 18 Vict. c. 113, does not apply to leaseholds or personalty. The rights of legatees of specific property mortgaged by the testator, to exoneration, will be considered in tit. " Wills." Where several estates or properties are subject to one contribution. charge or mortgage, and on the death of the mortgagor they devolve on different persons, each estate or property must contribute rateably according to its value. See Hevening- ham V. Heveningham, 2 Ver. 355; Aldrich v. Cooper, 8 Ves. 382, 391; Lipscomb v. Lipscomb, L. R., 7 Eq. 501. And where one property A. is mortgaged for one sum, and then A. and another property B. are mortgaged to secure the same sum and a further advance, A. is primarily liable for the first sum, and A. and B. rateably for the second sum. Lipscomb v. Lipscomb, sup. Purchase of Equity of Sedemption.] In the case of a Effect where mortgagee, who has notice of a mortgage subsequent to J^^""'' his own, purchasing and talking a conveyance of the equity of redemption, or of a person purchasing the equity of re- demption and paying off a mortgage, having notice of a sub- sequent one, the subsequent mortgagee is let in, and the prior mortgage cannot be set up against him ( Toulmin v. Steere, 3 Mer. 210; Brown v. Stead, 5 Sim. 535; Parry v. Wright, 5 Euss. 142; see Tildesley v. Lodge, 3 Sm. & G. 543; Chesshyre v. Biss, 2 Giff. 287; and cons. Hay den v. Kirkpatrick, 34 Bea. 645), unless the prior mortgage is kept on foot. Parry v. Wright, sup.; Bailey v. Richardson, 9 Ha. 736 ; Cooper v. Cartwright, Johns. 679. But a mort- gagor who buys the estate sold by his first mortgagee under a power of sale, and takes an assignment of the first mort- gage debt to a trustee for himself, cannot set it up against his own second mortgagee. Otter v. Ld. Vaux, 6 D., M. 8e G. 638. Consider, as to the risk of buying or dealing with equities of redemption, Beevor v. Luck, L. R., 4 Eq. 537; and the observations, ib. p. 549. 668 Mortgages. CHAPTER VII. TRANSFER AND DEVOLUTION OP THE MORTGAGE DEBT AND SECUEITT. Trcmsfer 668 Equities of Mortgagor . 668 Transferee, mlien bound by Payments by Mort- gagor .. ..668 Want 'of Consideration in Original Mortgage 668 Assignment of Debt . . 668 Purchase for less than Amount of Debt .. 668 -continued. Interest not converted into Principal . . 669 Costs of . . . . 669 Devolution 669 Estate and Debt . . 669 Where Equity of Re- demption barred . . 669 Effect of Sanhruptcy . 669 Equities of mort- gagor. Transferee, wlieu bound by pay- ments by mort- gagor. Want of con- sideration in ori- ginal mortgage. Assignment of debt. Purcliase for less than amount of debt. Transfer.] In transfers of mortgages to which the mort- gagor is not a party, the transferee will be subject to the same equities of the mortgagor as the mortgagee. Chambers V. Goldwin, 9 Ves. 264; Walker y. Jones, L. R., 1 P. C. 50. The transferee will be bound, therefore, by the state of the account between the mortgagor and mortgagee {Matthews v. Wallwyn, 4 Ves. 118); and if the mortgagor has no notice of the transfer, he will be justified in paying to the mortgagee. Williams v. Sorrell, ib. 389. These cases must be understood as qualifying the observation of the Master of the Rolls in Jones v. Gibbons (9 Ves. 411), " that he who has the estate has the debt, as the estate never can be taken from him except by payment of the debt." Payment, however, to be good against the transferee, must be made to the mortgagee himself or his authorized agent only; payment even to his solicitor, if unauthorized to re- ceive the money, is no discharge as against the transferee. Withington v. Tate, L. R., 4 Ch. 288. If the original mortgage was obtained without considera- tion, a transferee by deposit, though without notice of the want of consideration, will Ise compelled to deliver up the deed to be cancelled. Parker v. Clarke, 30 Bea. 54 ; see Vorley v. Cooke, 1 G-ifF. 230. By a transfer of the mortgage the mortgage debt is assigned in equity, though it may not be specifically mentioned nor specifically assigned. Jones v. Gibbons, 9 Ves. 411; Phillips v. Gutteridge, 4 De G. & J. 631. Due effect would seem not to have been given to this rule in Medley v. Horton, 14 Sim. 226. Where less than the amount of the mortgage debt is paid for the transfer, the transferee is nevertheless entitled, in Devolution of Mortgage Debt and Security. 669 general, to be paid the entire debt by the mortgagor ( Wil- liams V. Springfield, 1 Ver. 476; Ascough v. Johnson, 2 Ver. 66); and a first incumbrancer buying a third incum- brance at an undervalue, without notice of a second, is en- titled to tack for full value against the second incumbrancer (Morret v. Paske, 2 Atk. ■54); secus, if he bought with notice (Long v. Clapton, 1 Ver. 464) ; and, as will be seen (post. Chap. X.), he cannot, having notice, tack at all as against such second incumbrancer. An agent, executor or trustee of the mortgagor, who takes the transfer, will be allowed only what he has paid. Morret v. Paske, sup. The heir will only be allowed what he has paid as against creditors {Lancaster v. Evors, 10 Bea. 154; see Davis v. Barrett, 14 Bea. 542) or purchasers. Long v. Clapton, 1 Ver. 464. An arrear of interest will not be converted into principal, interest not con- unless the mortgagor concurs in the transfer (Ashenhurst JJau* '"'° ''"''' V. James, 3 Atk. 271); and even then, not as against sub- sequent incumbrances, of which the mortgagee has notice. Dighy v. Craggs, Amb. 612. The costs of a transfer, to which the mortgagor is no Costs bi. party, cannot be charged against him if the interest has been duly paid and the principal has not been called in. Re Radcliffe, 22 Bea. 201. Devolution.'] A mortgage being a mere security for a Estate ana debt, debt, on the death of a mortgagee his personal representa- tives will be entitled to the money, though the mortgaged estate, if in fee, will go to his heir or devisee, who will be a trustee for the personal representatives. Thornborough v. Baker, 1 Ch. Ca. 283; S. C, 3 Sw. 628. When the equity of redemption is barred by time or fore- When equity closure, the debt is extinguished, and the mortgaged estate SST"""" becomes transmissible, according to its quality, as freehold, copyhold, or leasehold. See Silberschild v. Schiott, 3 V. & B. 45. But where, at the time of the death of the mort- gagee of real estate intestate, there is a -right of redemption subsisting, though it may be uncertain in whom, his widow will not be entitled to dower. Flack v. Longmate, 8 Bea. 420. In general, with the exception of a mortgage in fee {supra), Effect of bank- the right to the security follows the right to the debt. But rup'^y. with respect to chattels personal, there is an exception to this rule, if the mortgagor becomes bankrupt after the day of default in payment, in which case, if the mortgagee has Mortgasnr retain- allowed him to retain possession of them, they will pass to '"^ possession. _ the trustee (assignees formerly), as being in his order and 670 Mortgages. Possession after and until default. disposition, with the consent of the true owner, within the meaning of the reputed ownership clauses in the several bankruptcy acts. See Ryall v. Bowles, 1 Ves. sen. 348. These clauses are similar to the clause in the last act, with the exception that the latter is restricted to traders, which was not the case in the Act of 1861, and with the exception also of the proviso as to choses in action. Ante, p. 649. It was considered doubtful, however, whether the same rule appUed when the bankruptcy took place before the day of default, when the possession of the mortgagor was consistent with the deed. It was decided, however, in Spackman v. Miller (12 C. B., N. S. 659), that, notwithstanding this, they were in such cases also, within the clause, and passed to the assignees. But in Ashton v. Blachshaw (L. E., 9 Eq. 510) (in which Spackman v. Miller was not cited), it was laid down, that if a bill of sale be duly registered under the 17 & 18 Vict. c. 36, the title of the mortgagee is good against the trustee in bankruptcy, if the mortgagor become bank- rupt before the day of default, but not if the bill of sale be not registered. But see Badger r. Shaw, 2 E. & E. 472, contra. Ashton v. Blackshaw was followed in Ex parte Homan (L. R., 12 Eq. 600), so that the law upon the sub- ject must be considered as still unsettled. See a valuable note in 2 Dav. Pr. Conv., 3rd ed. p. 711 et seq. CHAPTER VIII. MOETGAGOK IN POSSESSION— MORTGAGEE IN POSSESSION — RECEIVEB. Not accountable for rents. May exercise acts of ownership. Sec. 1. — Mortgagor in Possession. Not accountalle for Rents . 670 May exercise Acts ofOmner- shipanddistrcdn for Rent 670 Rent Paid in advance .. 671 Cannot alone grant Leases . 671 Mxeept wilder Power .. 671 A mortgagor in possession is not accountable for the rents received by him [Colman v. D. St. Albans, 3 Ves. 25; Ex parte Wilson, 2 V. & B. 252; see Hele v. Ld. Bexley, 20 Bea. ] 27), and may in general exercise all acts of ownership, not, however, committing such acts of waste as may diminish the value of the security (see Robinson v. Litton, 3 Atk. 210; Humphreys v. Harrison, IJ. & W. 581); but he may cut timber if the security of the estate is sufficient without it, Mortgagee in Possession. 671 not otherwise. King v. Smith, 2 Ha. 242; see Hampton v. Hodges, 8 Ves. 105. When the mortgaged property is let when may ais- on lease and the lease is prior to the mortgage the mortgagor "■''™ '"^ "■"'"■• is entitled to the rents until notice of the mortgage has been given by the mortgagee to the tenant. Moss v. Gallimore, 1 Doug. 279, 282. But if rent has been paid in advance to Rent paid in ad- the mortgagor and then notice is given by the mortgagee to ™''"- pay the rent to him, the tenant is not discharged by this payment, and is liable to pay over again to the mortgagees. De Nicholls v. Saunders, L. E., 5 C. P. 589. But in general the mortgagor is entitled to the rent actually due until notice by the mortgagee, and the former may distrain in the name of the latter. Trent v. Hunt, 9 Ex. 14; Snell V. Finch, 13 C. B., N. S. 651. Where the lease is after the mortgage, see infra. He cannot, however, alone grant leases binding on the cannot grant mortgagee {Keeeh v. Hall, Doug. 21 ; Thunder v. Bel- ^^^- ^^^^^ cher, 3 Ea. 449), unless under a power for that purpose, in prnver. which case he may grant a lease to a trustee for himself. Bevan v. Habgood, 1 J. & H. 222; cons., however, the ob- servations on this case, Sug. Pow. 718. As to leases by a mortgagor and mortgagee, see Harold v. Whitaker, 11 Q. B. 147; Saunders v. Merryweather, 3 H. & G. 902. Sec. 2. — Mortgagee in Possession. May give Notice to Tenants to pay Rent .. .. 671 Cannot alone grant Leases . 672 May appoint Receiver . . 672 Oecvpation Rent .. .. 672 Speculation mith Property . 672 Mines — Timber . . .. 672 Liable for milful Default .. 672 Allowances — Repairs Improvements Renewing Leases .. Must account When with or without An- nual Rests Holding over after he is fully Paid, 672 673 673 673 673 674 After default the mortgagee may, if so authorized by the May give notice provisions of the mortgage, enter into possession or receipt Jent!"™'^ '" ^^ of the rents and profits. And when the lease is prior to the mortgage, may give notice to the tenants to pay their rents to him. Supra. He cannot, however, when the lease is by the mortgagor and subsequent to the mortgage, merely by notice create the relation of landlord and tenant be- tween himself and the tenant. See Pope v. Biggs, 9 B. & C. 245; overruled on this point by Evans v. Elliott, 9 A. & E. 342. But the tenant may, it would seem, enter into a new contract of tenancy with the mortgagee (see 1 Sm. L. C. 570), or the mortgagee may bring ejectment. Keech v. Hall, Doug. 21. If the tenant in such cases has not paid 6Y2 Mortgages, Cannot alone grant leases. Receiver. Occupation rent. Speculation with property. Mines— Timber. Wilful default. Allowances. Repairs. rent to the mortgagee, the mortgagor may enforce payment of it, but not, it would seem, if it has actually been paid. See Wilton v. Dunn, 17 Q. B. 294; Hickman v. Machin, 4 H. & N. 716. A mortgagee cannot alone (and in this respect is like a mortgagor) grant leases binding on the mortgagor. Hun- gerford v. Clay, 9 Mod. 1 ; see FranhilinsM v. Ball, 33 Bea. 560. A mortgagee may in general appoint a receiver. See post. Sec. 3 ; Davis v. Dendy, 3 Madd. 170. But when a mort- gagee himself receives the rent he will not be entitled to any commission {Chambers v. Goldwin, 9 Ves. 271; Langstaff V. Fenwick, 10 Ves. 405; Nicholson y. Tutin, 3 K. & J. 1 59) ; and when he personally occupies he will be liable for the annual value as an occupation rent. Wilson v. Met- calfe, 1 Russ. 530. A mortgagee who remains in possession after his principal and interest have been discharged, must pay interest on the overplus received, with annual rests. lb. The mortgagee must bear the loss arising from any un- successful speculation with the property {Hughes v. Wil- liams, 12 Ves. 493; see Marriott v. Anchor Co., 3 D., F. & J. 177; Palmer v. Hendrie, 27 Bea. 349. He may open mines and cut timber if necessary, and the other security is insufficient, aliter, if sufficient. Millett v. Davy, 31 Bea. 470; see Rome v. Wood, 2 J. & W. 553. Where there is a mortgage of mines, which the mortgagee is to work, he is entitled not only to the expenses of working, but to the interest on monies so expended. Norton v. Cooper, 25 L. J., Ch. 121. A mortgagee in possession is liable for wilful default, as by letting at a less rent than could fairly have been obtained from a good tenant {Hughes v. Williams, 12 Ves. 494), or allowing a tenant to continue in occupation without paying rent. Brandon v. Brandon, 10 W. R. 287. So for damage arising from acts in the nature of waste, as from improper demolition of premises, or the like {Sandon v. Hooper, 6 Bea. 246); or for suffering, or being party to, acts of spoli- ation on the part of others. Hood v. Eastori, 2 Giff. 692. And a mortgagee in possession of a business is accountable not only for what he has received, but for what he might have, or ought to have, received. Chaplin v. Young, 33 Bea. 330; see Parkinson v. Hanbury, L. R. 2 H. L. 1. A mortgagee in possession will be allowed for proper re- pairs to the premises. Sandon v. Hooper, 6 Bea. 246 ; see Hardy v. Reeves, 4 Ves. 480. But he is not bound to lay out more money than is required to keep the property in necessary repair {Godfrey v. Watson, 3 Atk. 318); nor to Mortgagee in Possession. 6731 leave the buildings, after a long possession, in as good con>- dition as he found them (Russell v.. Smithies, 1 Anstr. 96);. though he must not commit waste by pulling down build- ings (Sandon v. Hooper, 6 Bea. 248), unless they are- quite ruinous, and to leave them in that condition would entail a> forfeiture. See Hardy v. Reeves, 4 Ves. 480 ; Perry v. Walker, 1 Jur., N. S. 746. A mortgagee in possession will be allowed for insurances if effected Iq conformity with the covenants in the mortgage, but it would seem not otherwise. Dobson V. Land, 8 Ha. 216 ; Bellamy v. Brickenden, 2 J. & H. 137; see now 23 & 24 Vict. c. 145, ante, p. 659. A mortgagee will also be allowed for lasting improvements improvements. if made with the assent or acquiescence of the mortgagor (Ld. Trimleston v. Hamill, 1 Ba. & Be. 385 ; Powell v. Trotter, I Dr. & Sm. 388), and interest on naonies so ex- pended. Quarrell v. Beckford, 1 Madd. 269, 281. But not if made without, as this renders it more difficult, some- times impossible, for the mortgagor to redeem, a proceeding which has been termed improving a mortgagor out of his estate. Sandon v. Hooper, 6 Bea. 246, 248. A mortgagor will also be allowed what is necessary for Defending title, defending the title to the mortgaged property for the benefit *"^ of all parties interested. lb.; Godfrey v. Watson, 3 Atk. 518; see Pelly v. Wat hen, 7 Ha. 372; Parker v. Watkins, Johns. 133. If a mortgagee in possession renew a lease it will enure Kenewing leiisca. to the benefit of the mortgagor, he paying the cost of it. Rushworth's case, 2 Fr. 12; Rakestraw v. Brewer, 2 P. W. 511. So a renewal by a mortgagor makes the renewed lease subject to the mortgage in equity. Smith v. Chichester, \ Con. & Law. 486. A mortgagee entering into possession is bound by the agreements or leases of his mortgagor while in possession, if he takes rent under them. Mold v. Wheat- croft, 27 Bea. 510. A mortgagee taking possession is bound to account, not Muataooount. only to the mortgagor, but to subsequent mortgagees, if he has notice of their incumbrances (Berney v. Sewell, 1 J. & W. 647, 650 ; Archdeacon v. Bowes, 13 Pri. 353), for the rents and profits received, and if there is no interest due No interest in when he takes possession, and the rents exceed the interest, "'^'■• annual rests will in general be directed ( Gould v. Tancred, 2 Atk. 533; Shephard v. Elliott, 4 Madd. 254; see Horloch v. Smith, 1 Coll. 287, 297; Morris v. Islip, 20 Bea. 654), and that whether he be in actual receipt or in occupation. Wil- son V. Metcalfe, 1 Euss. 530. Where the account is taken with rests, the annual surplus wiien with or over and above the interest goes in reduction of the prin- KitT^ ''°"'"'' w. X X 674 Mortgages. Interest In arrear. Mortgagee hold- ing over after tie is fully paid. cipal. Thorneycroft v. Crockett, 2 H. L. C. 239, 256. See, as to tlie principle and method of taking the accounts in such cases, Bennington v. Harwood, T. & E. 477 ; Heighington v. Grant, 5 M. & C. 258 ; Thompson v. Hudson, L. E., 10 Eq. 497. A mortgagee in possession will in general also be liable for all that he might have received but for his wilful default (see Chaplin v. Young, 33 Bea. 330); but it must be shown that he is in possession as mortgagee and not in any other character. Parkinson v. Hanhury, L. E., 2 H. L. 1. When there are arrears of interest at the time the mort- gagee takes possession, annual rests will not in general be directed {Finch v. Brown, 3 Bea. 70; Wilson v. Cluer, ib. 136; Nelson v. Booth, 3 D. & J. 119); and will not, it has been held, although the arrears are subsequently paid off. Davis V. May, 19 Ves. 383; but see Wilson v. Metcalfe, 1 Euss. 530. Annual rests will not be directed in some cases, although no interest may be in arrear when the mortgagee takes possession, as in the case of the mortgaged property consisting of leaseholds, and there being a probability that the lessee's covenants will be broken, the mortgagee enters to prevent a forfeiture. Patch v. Wild, 30 Bea. 100. But annual rests will be directed where a, mortgagee sells part of the mortgaged property and the purchase-money exceeds interest and costs, unless the balance is applied in reduction of the principal, if not, the account must be with rests. Thompson v. Hudson, L, E., 10 Eq. 497. A mortgagee in possession who holds over after he has been paid the mortgage debt and all arrears of interest will be charged with the excess received, and, in general, simple interest upon it at 4Z. per cent. Quarrell v. Beckford, 1 Madd. 269; Lloyd v. Jones, 12 Sim. 491. As to costs see Bennington v. Harwood, T. & E. 485. Sec. 3. — Of a Receiver. Appointment of Agent of Mortgagor . . At whose Instance ap- In mliat Cases . 674 67i 675 675 Appointment of — continued. 23 <5- 24 Vict. c. 145 . . 675 Powers, Duties, Costs, ^'c. of Receiver . . . . 675 Possession of Receiver 675 Agent of mort- gagor. Appointment of] The receiver is, in general, the agent of the mortgagor {Jefferys v. Dickson, L. E., 1 Ch. 183 ; see Law v. Glenn, L. E., 2 Ch. 634), and is usually ap- pointed by him with the concurrence of the mortgagee. Appointment, Sfc. of a Receiver, 675 When a receiver is appointed by the court, he must find sureties to be approved of by the court. See Manners v. Furze, 11 Bea. 30; Tylee v. T^/lee, 17 Bea. 583. A receiver is very rarely appointed at the instance of a legal At whose in- mortgagee who may take possession {Berney v. Sewell, 1 J. ^ & W. 647; see Ackland v. Gravener, 31 Bea. 482); but is so generally upon the application of a puisne mortgagee (iJ.), unless there is a prior incumbrancer who has taken posses- sion ; and, as against him even, a receiver will in general be appointed if the court considers there are grounds for sup- posing he has been paid all that is due to him. See Cod- rington v. Parker, 16 Ves. 470; Hiles v. Moore, 15 Bea. 175. As to the appointment of a receiver at the instance of a judgment creditor, see Smith v. Hurst, 1 Coll. 705; Greenway v. Bromfield, 9 Ha. 241; cons, now the 27 & 28 Vict. c. 112, ante, p. 467. A receiver may, in some cases, be appointed in respect of in what cases, personal as well as real estate. As to government salaries and pensions, see Cooper v. Reilly, 1 R. & My. 560 ; Noad V. Backhouse, 2 Y. C. C. 529. So a receiver will be ap- pointed of the profits of a college fellowship {Feistel v. King's Coll., Cam., 10 Bea. 491), or of a canonry (Gren- fell V. Dean, ^c. of Windsor, 2 Bea. 544), and of the profits of an ecclesiastical benefice. See Hawkins v. Gathercole, 1 Drew. 12. See, as to a receiver of a railway or other public company, Gardner ^. L. C. Sf D. Rail. Co., L. R., 2 Ch. 201 ; Bowen v. Brecon Rail. Co., L. R., 3 Eq. 541 ; Hopkins v. Worcester, ^c. Proprietors, L. R., 6 Eq. 437. By the 23 & 24 Vict. c. 145, the mortgagee or other person statutory power entitled to the mortgage debt shall have (as well as a power "' ^ppo^nu^s- to insure, ante, p. 659) a power of appointing or obtaining the appointment of a receiver of the whole or part of the mortgaged property (s. 11, sub-sect. 3). Powers, Duties, Costs, S^c. of Receiver.^ As a general Costs, &c rule, the receiver is entitled to proper costs for his trouble in collecting, receiving and paying the rents. See Gilbert v. Dyneley, 3 Sc. N. R. 364. The receiver, when appointed by the court, should do nothing which may entail expense on the estate without the sanction of the court or judge in chambers. Therefore, as a general rule, he should neither bring nor defend actions without permission. Swaby v. Dickon, 5 Sim. 629; Ward v. Swift, 6 Ha. 312; see Bris- towe V. Needham, 2 Ph. 190. He may distrain of his own authority, but for not more than one year's rent, and if more is due the order of the court is necessary. Brandon v. Brandon, 5 Madd. 473. The possession of the receiver ap- Possession of re- XX 2 ceiver is posses- sion of the court. 676 Mortgages. pointed by the court is the possession of the court, and its authority must be obtained before such possession or acts done under it can be disputed or interfered with. Russell V. E. Ang. Rail. Co., 3 Mao. & G. 104; Uveli/n v. Lewis, 3 Ha. 472; De Winton v. Mayor of Brecon, 28 Bea. 200. May pursue all remedies toge- ther. CHAPTER IX. or THE mortgagee's eights and remedies. Generally — Action on Cove- nant — l^eetment . . 676 May pursue all Reme- dies together Notice to Tenant sutse- quent to Mortgage . . Tenant prior to Mort- gage Payment of Principal and Interest into Cowrt Power of Sale By whom and horn te exercised . . Notice 678 Purchase T>y Mortgagee 679 To wliat Property Power extends . . . . 679 Surplus Proceeds . . 679 Statutory Powers, 23 ^ 24 Vict. c. 145 .. 680 Chattels Personal . . 680 676 677 677 677 677 677 Power of /SfeZe— continued. Where cannot he exer- ■■ 680 Foreclosure and Sale hy the Court 681 Where Might exists . . 681 Not where Conveyance is upon Trust to sell . 681 Setenture Holders . . 681 Where Decree may lie re-opened . . . . 681 Subsequent Mortgagees lound .. .. 682 Insufficiency of Pro- perty 682 Collateral Securities . . 682 Fraud 682 Mortgagee of Part net entitled to Decree . . 682 Sales under 15 ^ 16 Vict. c. 86 . . . . 683 Fquitable Mortgagees . 683 Generally — Action on Covenant — Ejectment.^ As a very general rule, it is competent to the mortgagee to pursue all his remedies at the same time, after default in payment of the mortgage debt. See Lockhart v. Hardy, 9 Bea. 349; Cockell V. Bacon, 16 Bea. 158; Palmer v. Hendrie, 27 Bea. 349, 351. Thus, he may take possession, if, as usually is the case, he is entitled to do so under his mortgage deed. He may bring an action for recovery of the mortgage debt and interest, may sell under his power of sale if there is one, foreclose, or, if he has the legal estate and a right of entry, he may bring ejectment against the mortgagor with- out any notice {Doe v. Giles, 5 Sing. 421 ; see Doe v. Day, 2 Q. B. 147), or his tenant if the mortgagor has demised since the mortgage without the consent of the mortgagee, and the latter has not recognized the tenancy. Keech v. Hall, Doug. 21 ; Rogers v. Humphreys, 4 A. & E. 313. Power of Sale. 677 And notice of the mortgage in such cases to the tenant by ^°','^„'°„f^°' the mortgagee will not alone create a tenancy between the mortgage. tenant and mortgagee without attornment. Evans v. Elliot, 9 A. & E. 342; see ante, p. 671. But where the tenant Tenantpriorto claims by title prior to the mortgage, a right to oust him must be shown, as if he claim under a tenancy from year to year created before the mortgage it must be determined by notice in the usual way. Cadle v. Moody, 30 L. J., Ex. 385, By the 7 Geo. 2, c. 20, where any action shall be brought Payment of prfn- *',-„ ' '«,-, , n cipal and mterctit on any bond for payment of the mortgage money, or pertorm- into court, ance of mortgage covenants, or any action of ejectment by a mortgagee, where no foreclosure or redemption suit is de- pending, on the person entitled to redeem paying to the mortgagee, or, in case of his refusal, bringing into court principal, interest and costs, it shall be deemed full satisfac- tion, and the court shall and may compel the mortgagee to reconvey; but this provision does not extend to cases where the right of redemption is controverted, or the money due is not adjusted, or where subsequent incumbrancers would be prejudiced (ss. 1, 3). These provisions are almost identical with those contained in a later act, the 15 & 16 Vict. c. 76, ss. 219, 220. Lawrence w. Hogben, 2G T,. 3. ,^yi. 65. The mortgagor is discharged on paying the money into court under the act. Bourton v. Williams, L. R., 5 Ch. 655. Power of Sale.'\ In most mortgages at the present day a power of sale is given to the mortgagee, his executors, ad- ministrators or assigns, in default of payment of principal and interest, exerciseable either by public or private sale, after or without notice, according to the terms of the mort- gage. A sale under such a power gives a valid title free from the mortgagor's equity of redemption. Carder v. Morgan, 18 Ves. 344. A transferee of the mortgage has the benefit of the power of sale, and it is valid where the mortgagor concurs, though he covenants to pay a different sum from that specified, and on a different day from that named in the original mortgage. Young v. Roberts, 15 Bea. 558. Where the power may be exercised by public or private Hj "tiom and sale, it may be exercised in the first instance by private JS*° ^^ °^'"'" sale, and the mortgagee may agree to allow a portion of the purchase-money to remain on mortgage. Davy v. Durrant, Smith V. Durrant, 1 De G. & J. 535 ; Thurlow v. Makeson, L. E., 4 Q. B. 97. The word assigns in the power of sale is material, without it a transferee of the mortgage cannot exercise the power. Bradford v. Belfield, 2 Sim. 264. A devisee of a surviving trustee is an assign. Titley v. JVol- 678 Mortgages. When by aur- Tiror may. Building society. stenholme, 7 Bea. 425; see Hall v. May, 3 K. & J. 585- Ashton V. Wood, 3 Sm. & G. 436. The administrator of a transferee of a mortgage is an assign, and can exercise a power_ of sale given to a mortgagee, his heirs, executors, administrators and assigns (Salowai/ y. Strawbridge, 1 K. & J. 371) ; but a deviseee would not come under the descrip- tion of heir where the word "assigns" is omitted. Cooke V. Crauford, 13 Sim. 91; Macdonald v. Walker, 14 Bea. 536; see Wilson y. Bennett, 5 De G. & S. 475. A survivor of several may exercise the power where the mortgage money belongs to them on & joint account. Hind v. Poole, 1 K. & J. 383. First and second mortgagees having powers of sale may join in selling, each giving receipts for his portion of the purchase-money. M'Carogher v. Whieldon, 34 Bea. 107. Where a mortgagee sub-mortgages, it is doubtful whether his power of sale is not gone. Cruse v. Nowell, 25 L. J., Ch. 709. The sale should be in accordance with the power, and for the purpose of recovering the mortgage debt (Robertson v. Norris, 1 GifF. 421, 424, atfirmed 4 Jur., N. S. 443), and if so exercised bona fide, will not be set aside or interfered with in equity. Matthie v. Edwards, 11 Jur. 504, 761. A mortgagee, however, should not sell after tender of principal and interest where the security is ample, although there may be no tender of the costs, they heing unascertained. Jenkins v. Jones, 2 Giff. 99. The mortgagee may sell with the usual condition, that if he should be unwilling or unable to answer or comply with any requisition he may rescind the contract. Faulkner v. Eq. Rev. Soc, 4 Drew. 352. An agreement in a mortgage to a building society, that on a sale by the mortgagees they shall retain the amount of all past subscriptions in arrear, and also aW. future subscrip- tions, is valid and binding on the mortgagor, who will not be entitled, in the event of a sale, to any rebate or discount on such future subscriptions, unless so specially provided for. Matterson v. Elderfield, L. E., 4 Ch. 207. The notice required (if any) should be given. Forster v. Hoggart, 15 Q. B. 155 ; see Gill v. Newton, 12 Jur., N. S. 220. Where the remedy for the breach of covenant to sell without notice is expressly confined to damages, and a pur- chaser is not to be affected by want of notice, the court vrill not interfere to restrain a sale without notice. Pritchard v. Wilson, 10 Jur., N. S. 330; see Anon., 6 Madd. 10; as to service of notice. Major v. Ward, 5 Ha. 598. The power cannot be exercised if a puisne mortgagee has offered to re- deem. Rhodes v. Buckland, 16 Bea. 212. A mortgagee who consents to a sale is not entitled to six months' interest Power of Sale. 679 in lieu of notice, in addition to Ms principal and interest up to the time of being paid off. Day v. Day, 8 Jur., N. S. 1166. A notice of intention to sell in default of payment six months from the date, instead of the service, will be good, though not served on the date, if the sale did not in fact take place until after the six months from the service. Met- iers Y. Brown, 9 Jur., N. S. 958. The notice may be acted on though given a long time (in the case cited nearly four years) before the sale. lb. When the person entitled to the equity of redemption is an infant, notice may be served on the infant's guardian. Tracey v. Lawrerice, 2 Drew. 403. A mortgagee selling under his povrer of sale cannot pur- Purchase by mort- chase, being a trustee (see Dowries v. Grazebrook, 3 Mer. ^'^^'^'• 200); and even fifteen years' possession under such a pur- chase is no bar to relief. Robertson v. Norris, 1 Giff. 421 ; affirmed 4 Jur., N. S. 443. But a mortgagee may purchase of the mortgagor. Webb v. Rorke, 2 Sch. & Lef. 673 ; Knight v. Majoribanks, 2 Mac. & Gr. 10. No advantage, hovrever, must be taken of the position of the latter {Ford v. Olden, L. E., 3 Eq. 461 ; Frees v. Coke, L. E., 6 Ch. 645); and the purchase must be completed and not rest on a mere agreement, the mortgagor remaining in possession. Rushbrook v. Lawrence, L. E., 8 Eq. 25. A puisne mort- gagee may buy of a first mortgagee ■^ho sells under his povs^er of sale. Shaw v. Bunny, 2 D., J. & S. 468; Turner, L. J., dub. This case, hovsrever, was followed in Kirkwood V. Thompson, 2 D., J. & S. 613. A power of sale may extend to property of which a lease To what property is afterwards to be granted, where the intention is clear.' ''°^"°^'™'^' Ashworth V. Mounsey, 9 Ex. 175. Where a mortgagee is one of a firm of auctioneers, and the firm sell for him, they will not be allowed commission {Mathieson v. Clarke, 3 Drew. 3), but an auctioneer or broker, who is a mortgagee, will be entitled to his commission if he sells under the direc- tion of the court. Arnold y. Garner, 2 Ph. 231. Where it is not alleged that the power has been impro- setting asWc sale. perly or coUusively exercised, the mere averments in a bill that the property was sold at an undervalue, and not in lots, as it ought to have been; that the mortgagee while in pos- session had mismanaged it, and rendered himself liable to an account for wilful default; and that the sale had been made pending a suit by the mortgagor to redeem, which was regis- tered as a lis pendens, raises no equity entitling the mort- gagor to set aside the sale and redeem. Adams v. Scott, 7 W. E. 213. The surplus proceeds of a sale of freeholds or copyholds, Surplus proceeds. 680 Mortgages. after providing for payment of expenses of sale, and princi- pal, interest and costs, ar-e generally made payable to the mortgagor, his heirs or assigns, the persons, namely, who are entitled to redeem, and not to his personal representatives. If made payable to the mortgagor and his personal represen- tatives, and the sale is made in his lifetime, the surplus is per- sonal estate, but if not made until after his death the surplus is real estate. Wright v. Rose, 2 Sim. & S. 323 ; i?e Clarke's Trusts, 22 L. J., Ch. 230. If payable to the heirs, execu- tors or administrators, and the sale is made during the life- time of the mortgagor, but he dies before the surplus is paid over, it will be payable to the personal representatives {Re Smith, 7 Jur., N. S. 903; see Re Underwood, 3 K. & J. 745), but not if the sale is after his death. Bourne v. Bourne, 2 Ha. 35. As to the application of the surplus where the mortgagee has notice of subsequent incumbrances, see Rew v. Lane, 3 Jur., N. S. 125, 128; Mathison v. Clark, 25 L. J., Ch.29. statutory power. Now, by the 23 & 24 Vict. c. 145, the mortgagee or person entitled to the mortgage debt shall, in addition to the powers to insure and appoint a receiver {ante, pp. 659, 674), have a power to sell, or concur in the sale of, the mortgaged pro- perty, by public or private sale, subject to any reasonable conditions he may think fit to make, and to rescind or vary contracts for sale, or buy in and re-sell the property from time to time, in like manner (s. 11, sub-s. 1). The receipts of the vendor are made suiEcient discharges (s. 12). Six months' notice of the sale is to be given or affixed to some conspicuous part of the property, but the purchaser is re- lieved from inquiry as to the circumstances of the sale (s. 13). The trusts of the purchase-money are similar to those under an ordinary power of sale (s. 14). Sect. 15 gives power to convey the property sold; and sect. 16, to recover the title deeds, and to procure a conveyance of the legal estate, if out- standing. Chattels personal. A power of Sale is frequently specially given -in mort- gages of personal property. Where it is not, the mortgagee may in general sell after default in payment of the principal. See Tucker v. Wilson, 1 P. W. 261; Pigot v. Cubley, 15 C. B., N. S. 701. At all events, in equity, the court will m general decree a sale. See Dyson v. Morris, 1 Ha. 413. ^^^^ Where a mortgagee of stock sells during the currency of the loan, and then replaces the stock at a profit, he is account- able to the mortgagor for the profit thereby realized. Lang- ton V. Waite, L. E., 6 Eq. 165; see ante, p. 653. When there is a power of sale in a mortgage, and in a transfer of it there is a declaration that the power has not Where cannot be exercised. Foreclosure — Sale by the Court. 681 been and is not intended to be exercised, it is gone, although the debt may be transferred with all powers and remedies for recovering the same. Boyd v. Petrie, L. E., 10 Eq. 482. Foreclosure — Sale by the Court.'\ Notwithstanding there where right may be a power of sale, a mortgagee has in general a right ^^'^'^• to apply to the court for a decree of foreclosure or for a sale. Wayne v. Hanham, 9 Ha. 62; Hutton v. Sealy, 27 L. J., Ch. 263. The right subsists though the mortgagee has recovered part of the debt, if he is not fully paid. Lockhart v. Hardy, 9 Bea. 349; Falmer v. Hendrie, 27 Bea. 349, 351. Where there are prior incumbrancers, he must offer to redeem them. Inman v. Wearing, 3 De G. & S. 729. And a mortgagee who has expressly reserved the benefit of the security may fore- close, though he has assigned the mortgage debt. Morley v. Morley, 25 Bea. 253. If the principal, interest and costs are not paid on the day named, a final order for foreclosure is obtained, which, when enrolled, bars the equity of redemp- tion and gives the estate to the mortgagee. See Lechmere V. Clamp, 31 Bea. 578. But a conveyance upon trust to srot where con- sell, and out of the proceeds to pay off the loan, does not ''^l^"^^'^ entitle the mortgagee to this decree. Jenkin v. Row, 5 De