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LEADING CASES 
 
 IN 
 
 MODERN EQUITY. 
 
 THOMAS RKETT, 
 
 OF THE MIDDLE TEMPLE, BARRISTER- AT-LAW, LL,B,,., 
 
 LONDON UNIVERSITY, B.A., 
 
 LATE SCHOLAR AND STUDENT OF TRINITY COLLEGE, DUBLIN ; EXHIBITIONER IN REAL 
 
 PROPERTY AND EQUITY; HOLDER OP THE FIRST CERTIFICATE OF 
 
 HONOUR, MICHAELMAS 1869; 
 
 JOINT AUTHOR OF CLERKE AND BRETT" S CONVEYANCING ACTS : AUTHOR OF 
 
 BRETT'S BANKRUPTCY ACT, J883 ; 
 
 AND LECTURER IN EQUITY TO THE INCORPORATED LAW SOCIETY. 
 
 WITH NOTES AND AMERICAN CASES, • 
 
 BY 
 
 FKANKLIN S. DICKSON. 
 
 PHILADELPHIA: 
 THE BLACKSTONE PUBLISHING COMPANY. 
 
 1888. 
 
Entered according to the Acts of Congress, in the year 1888, by the Black- 
 stone Publishing Company, in the office of the Librarian of 
 Congress, at Washington, D. C. 
 
NOTE. 
 
 We suggest to our patrons that, to facilitate the labor of the 
 Judges and Reporters, they cite the TOP PAGING of books of 
 our SERIES, and add [TEXT BOOK SERIES.]— Editor. 
 
 (3) 
 
(4) 
 
PREFACE. 
 
 The object which I have had in view in writing this book is to il- 
 lustrate, by means of leading cases, the doctrines of " modern 
 equity." That great judge, Sir George Jessel, in his celebrated 
 judgment in In re Hallett's Estate, Knatchbull v. Hallett (13 Ch. 
 Div. 696, 710), which has been selected as the first of the leading 
 cases in the present volume, pointed out that the moment the fidu- 
 ciary relation was established between the parties, that moment the 
 "modern doctrines of equity" applied. "I intentionally," the 
 judgment proceeds, " say modern rules, because it must not be for- 
 gotten that the rules of Equity are not, like the rules of the Com- 
 mon Law, supposed to have been established from time immemo- 
 rial. Take such things as these — the separate use of a married wo- 
 man, the restraint on alienation. We can name the Chancellors who 
 first invented them, and state the date when they were first intro- 
 duced into Equity jurisprudence, and therefore in cases of this kind 
 the older precedents in Equity are of very little value. The doc- 
 trines are progressive, refined, altered and improved; and if we 
 want to know what the rules of Equity are, we must look, of course, 
 rather to the more modern than the more ancient cases." 
 
 To this it may be added, that the great changes which have been 
 introduced by recent statutes and orders into the principles and 
 practice of Equity have still further diminished the value of the 
 " older precedents," and in many cases have rendered them practi- 
 cally obsolete. Thus, to cite only two illustrations from among 
 several which might be mentioned. Even since 1879, when the 
 late Master of the Rolls delivered his judgment re Hallefs Estate, 
 the old principles of the law as to restraint on anticipation (see p. 
 230) have been greatly modified by the Conveyancing Act, 1881. 
 Within the last few years the whole practice as to administration 
 (see p. 320 et. seq. ) has been revolutionized by the orders under the 
 Judicature Act. 
 
 Reasons such as these would seem amply sufficient to justify the 
 appearance of a new volume dealing professedly with " modern 
 
 (5) 
 
6 PREFACE. 
 
 Equity." Thus far as to the substance of the work. A word now 
 as to its form. The form of leading cases has been, selected as best 
 calculated to interest the reader, and impress the modern doctrines 
 on the minds alike of students and practitioners. 
 
 The cases dealing with the same classes of subjects have been to 
 some extent grouped together. Thus the first five cases illustrate 
 the doctrine of trusts : two are concerned with charities ; three deal 
 with the law relating to partnership; the great case of Speight v. 
 Gaunt is followed by four others on the position of trustees ; Dy- 
 mond v. Croft and the six succeeding cases have been selected to 
 explain and illustrate the present state of the law with regard to 
 mortgages. The very recent remarkable decision of the Court of 
 Appeal in' In re Corsellis is followed by two others in which the re- 
 lations subsisting between solicitors and their clients have been 
 made the subject of judicial consideration. Among isolated cases 
 of special importance may be mentioned Reid v. Reid and In re 
 Jones, under which the Married Women's Property Act and the 
 Settled Land Acts will be found considered, with summaries of the 
 principal decisions, and Leslie v. French, under which the leading 
 points of the law of Life Insurance are noticed. The last thirteen 
 cases are devoted to Practice, ending with Injunction, and a brief 
 review of the principal cases which have been decided in recent 
 years on that important subject. 
 
 In the Table of Cases prefixed, reference has been made not only 
 to the authorised Law Reports, but also to the Weekly Reporter, 
 Law Times, and Law Journal,, the reports being referred to when 
 the decisions are of the Court of Appeal as Ch. Div., Q. B. Div., 
 and when of a Court of First Instance as Ch. D., Q. B. D. 
 
 I desire to express my warmest acknowledgments to Mr. James 
 Pickup and Mr. John Marsh Dixon, of 6 Stone Buildings, Lincoln's 
 Inn, for their most valuable assistance throughout the whole of 
 this book, and also to Mr. William Tucker and Mr. J. W. Blagg 
 for friendly aid rendered in respect of portions of it, and to sub- 
 mit my work to the favourable consideration of the profession to 
 which I have the honour to belong. 
 
 THOMAS BRETT. 
 
 Lincoln's Inn, 
 
 July, 1887. 
 
LIST OF LEADING CASES. 
 
 page; 
 
 Adams v. Angell (Merger of Charges) 51 
 
 Adams and the Kensington Vestry, In re (Precatory Trusts] 13 
 
 Agar-Ellis, In re. Agar-Ellis v. Laseelles (Infants) 274 
 
 Anglo-Italian Bank v. Davies; Ex parte Evans, In re Watkins; Salt v. 
 
 Cooper (Receiver — Equitable Execution) .... . . . . 280 
 
 Attree v. Hawe (Charity. The Mortmain Act) ... . 29 
 
 Atwood v. Maude (Eeturn of Premium on Dissolution of Partnership) . 81 
 
 Austerberry v. Corporation of Oldham (Restrictive Covenants) . 138 
 
 Aylesford, Earl of v. Morris (Dealings with Reversioners) . . . 130 
 
 Baker v. Sebright (Equitable Waste) ... 34 
 
 Barnes v. Addy (Liability of Constructive Trustees) . . 107. 
 
 Blake, In re. Jones v. Blake (Administration Judgments and Orders) 319 
 
 Campden Charities, In re (Charity, the Cy-pres Doctrine) . . 23 
 
 Carter v. Wake (Rights of Pledgee of Personal Chattels) 165 
 
 Christie v. Christie (Scandal) ... 299 
 
 Cleather r. Twisden ( Liability of Partners) ... 77 
 
 ' Cooper v. Phibbs (Mistake of Fact) 68 
 
 Corsellis, In re. Lawton v. Elwes (Costs of Solicitor-Trustee) 184 
 
 Day v. Brownrigg; Gaskin v. Balls; North London Railway Company v. 
 
 Great Northern Railway Company (Injunction) 324 
 
 Dymond v. Croft (Judgment in Mortgage Actions; 160 
 
 Eager, In re. Eager v. Johnstone (Service out of the Jurisdiction) 304 
 
 Ewing v. Orr Ewing (Equity acts in personam) . 234 
 
 Flower v. Lloyd (Jurisdiction of the Court of Appeal) . 313 
 
 Fowkes v. Pascoe (Presumption of Advancement) ... . 248 
 
 Freeman v. Cox (Admissions) ... . . . 296 
 
 Freeman v. Pope (Voluntary Settlements) . 218 
 
 Gisborne v. Gisbofne (Uncontrollable Discretion) 114 
 
 Greer v. Young (Charge in favour of Solicitor) . . ... 1 93 
 
 Hall v. Truman, Hanbury & Co. (Discovery of Documents) . . 290 
 
 Hallett, In re. Knatchbull v. Hallett (Following Trust Funds) . , . . 1 
 Hargraves & Thompson's Contract, In re (The Vendor and Purchaser Act, 
 
 1874) . . .' 91 
 
 Henty v. Wrey (Fraud on a Power) . . . 225 
 
 Jennings v. Jordan (Consolidation of Mortgages) ... . . 178 
 
 Johns v. James (Trusts for Creditors) . . . 16 
 
 ' Jones, In re (The Settled Land Acts) . . . . .149 
 
 Leslie, In re. Leslie v. French (Life Insurance) 262 
 
 (7) 
 
8 LIST OF LEADING CASES. 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 Lyell v. Kennedy (Discovery in Action for Recovery of Land) 288 
 
 Lyell v. Kennedy (No. 2) (Prileged Communications) 285 
 
 Macdonald v. Irvine (Conversion of wasting Securities) . . . 211 
 
 McPherson v. Watt (Solicitor and Client) . 189 
 
 ^ Maddison v. Alderson (Part Performance) .... 98 
 
 Mead, In re. Austin v. Mead ( Donatio mortis causd) . 122 
 
 Minors v. Battison (Control of Trustees' Discretion) . Ill 
 
 National Provincial Bank of England r. James (Mortgagee's Costs) . . . 181 
 Newbiggin-by-the-Sea Gas Company r. Armstrong; Nurse v. Durnford 
 
 (Practice since the Judicature Acts) 309 
 
 Newmarch, In re. Newmarch v. Storr (Locke King's Acts) . 214 
 
 Northern Insurance v. "Whipp (Mortgage — Priorities) , . 167 
 
 Odell, Ex parte. In re "Walden (Mortgage Security) 171 
 
 ^Patman ,'. Harland (Notice) 238 
 
 Pearson v. Pearson (Sale of Goodwill) .... 87 
 
 ''Pemb'erton r. Barnes (Partition) .45 
 
 Phillips v. Beale (Place of Trial) ... 293 
 
 .^Redgrave v. Hurd (Misrepresentation and Fraud) . 201 
 Reid v. Reid (Married Women's Property Act, 1882) 142 
 Richards v. Delbridge (Declaration of Trust) . 8 
 Rogers v. Ingham (Mistake of Law) . . 64. 
 'Rossiter v. Miller (Specific Performance) ... .94 
 Rownson, In re. Field v.. White (Right of Retainer by Executor or Ad- 
 ministrator) ... . 156 
 
 Sackville-West v. Viscount Holmesdale (Executory Trusts) . . 19 
 
 Smith v. Anderson (Investment Trust) ..... . . . 59 
 
 South Durham Iron Company, Smith's Case (Charges of Companies) . 54 
 
 Speight v. Gaunt (Liability of Trustees) . . . 103 
 
 ' Steed v. Preece (Conversion by Court or Trustee . 197 
 
 Steel v. Dixon (Contribution among Sureties) . . 259 
 
 Stott v. Milne (Trustee's Costs) ... . . 118 
 
 Sutton v. Sutton (Real Property Limitation Act, 1874) 126 
 
 Tildesley v. Harper (Amendment) 302 
 
 Tilley v. Thomas (Time the Essence of the Contract) . 24.~> 
 
 Trott n. Buchanan (Administration) , 242 
 
 Tussaud r. Tussaud (Satisfaction) 253 
 
 Union Bank of London v. Ingram (Mortgage — Sale by the Court) 175 
 
 Vardon's Trusts, In re (Election) . 27H 
 
 Walker v. Hirsch (Test of Partnership) . . .72 
 
 "Wallis v. Smith (Penalties and Forfeitures) 39 
 
 Walsh v. Lonsdale (Agreement for a Lease) 135 
 
 Warren's Settlement, In re (Removal of Restraint on Anticipation) 230 
 
 l 'Webb v. Smith (Marshalling) 222 
 
 Westbury-on-Severn Rural Sanitary Authority v. Meredith (De minimis 
 
 non curat lex) 307 
 
 Williams v. Williams (Family Arrangements) . 207 
 
TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 Abernethy r. Hutehinson (3 L. J. Ch. (O.S) 209; 1 H. T. 28) 328 
 
 Abouloff v. Oppenheimer (10 Q. B. Div. 295; 47 L. T. (N.S.) 702; 52 L. J. 
 
 Q. B. 1; 31 W. E. 57) 319 
 
 Ackroyd v. Smithson (1 Brown C. C. 508) . . 198 
 
 Acton ii. Woodgate (2 Mv. & K. 492; 3 L. J. (N.S.) Ch. 83 17 
 
 Adams, Ex parte (14 Q. B. Div. 543; f>> L. T. (N.S) 240; 54 L. J. Q. B. 76; 
 
 33 W. R. 219) 195 
 
 Adams' Policy Trust, In re (23 Ch. D. 525; 48 L. T. (N.S.) 727; 52 L. J. 
 
 Ch. 642; 31 W. R. 810) .148 
 
 Adams' Trust, In re (12 Ch. D. 634; 41 L. T. (N.S) 667; 48 L. J. Ch. 613; 
 
 28 W. E. 163) 11 
 
 Adams r. Angell (5 Ch. Div. 634; 36 L. T. (N.S.) 334; 46 L. J. Ch. 352; 25 
 
 W. R. 139 (V.-Ch.)) 51 
 
 Adams & Kensington Vestry, In re (27 Ch. Div. 394; 51 L. T. (N.S.) 382; 
 
 54 L. J. Ch. 87; 32 W. E. 883) 13 
 
 Agar-Ellis, In re. Agar-Ellis v. Lascelles (10 Ch. Div. 49; 39 L. T. CN.S.) 
 
 380; 48 L. J. Ch. 1; 27 W. R. 117) 274 
 
 Agar-Ellis, In re. A.-E. v. Lascelles (24 Ch. Div. 317; 50 L. T. (N.S.) 161; 
 
 53 L. J. Ch. 10; 32 W. E. 1) 276 
 
 Agra Bank v. Barry (L. E. 7 H. L. 135) 169 
 
 Ainslie, In re. Swinburn v. Ainslie (30 Ch. Div. 485; 53 L. T. (N.S.) 645; 
 
 55 L. J. Ch. 615; 33 W. R. 910) 38 
 
 Alderson v. Elgey (26 Ch. D. 567; 50 L. T. (N.S.) 505; 32 W. R. 632) 163 
 
 Aldridge v. Cooper (8 Ves. 382, 396) 222 
 
 Aleyn v. Belchier (1 Eden, 132; Sugd. on Powers, App. 952 (8th ed.)) . 226 
 
 Alexander v. Alexander (Tudor R. P. Cas. ; 2 Ves. 640) 229 
 
 Alison, in re. Johnson r. Mounsey (11 Ch. Div. 284; 40 L. T. (N.S.) 234; 
 
 27 W. R. 389 (Malins, V.-C.)) 173 
 
 Allam, Ex parte. Munday, In re (14 Q. B. D. 43; 33 W. R. 231) . . . 174 
 Allen v. Seekham (11 Ch. Div. 790; 41 L. T. (N.S.) 260; 48 L. J. Ch. 611: 
 
 28 W. R. 26) ... .240 
 
 Allgood v. Merrybent and Darlington Railw. Co. 33 Ch. D. 571 ; 55 L. J. 
 
 Ch. 743; 35 W. R. 180) 330 
 
 Allhusen v. Brooking (26 Ch. D. 559;. 51 L. T. (N.S) 57; 53 L. J. Ch. 520; 
 
 32 W. R. 657) 136 
 
 Allsopp v. Wheatcroft (L. R. 15 Eq. 59; 27 L. T. (N.S) 372; 42 L. J. Ch. 
 
 12; 21 W. R. 102) 89 
 
 Alston, Ex parte (L. R. 4 Ch. 168; 19 L. T. (N.S.) 542, 17 "W. R. 266) . . 224 
 
 Ames, In re. Ames v. Taylor (25 Ch. D. 72; 32 W. R. 287) . 187, 188 
 
 Amiss v. Witt (33 Beav. 619) 125 
 
 Andrew v. Aitken (22 Ch. D. 218; 48 L. T. (N.S) 148; 52 L. J. Ch. 294; 31 
 
 W. R. 425) 141 
 
 Andrews v. City Permanent, &c, Building Society (44 L. T. (N.S.) 641) . 180 
 
 v. Salt (L. R. 8 Ch. 622; 28 L. T. 686) 279 
 
 Anglo-African Steamship'Co (32 Ch. Div. 348; 54 L. T. (N.S.) 807; 55 L. J. 
 
 Ch. 579; 34 W. R. 554) . 306 
 
 (9) 
 
10 TABLE OF CASES. 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 Anglo-Italian Bank v. Davies (9 Ch. Div. 275; 39 L. T. (N.S) 244; 47 L. J. 
 Ch. 833; 27 W. E. 3) . . .... . 280, 281 
 
 Arab, lhe(5 Jur. (N.S.) 417) ... . . .223 
 
 Arcedeckne, In re (24 Ch. D. 709) .' 260 
 
 Arden v. Arden (29 Ch. D. 702; 52 L. T. 610; 54 L. J. Ch. 655; 33 W. E. 
 
 593) .283 
 
 Archer !). Preston (1 Vern. 77) 236 
 
 Arkwrightu Newbold (17 Ch. Div. 301; 44 L. T. (N.S.) 393; 50 L. J. Ch. 
 
 372; 29 W. E. 455) . . 204 
 
 Arnold v. Dixon (t. E. 19 Eq. 113; 23 W. R. 314) . . 199 
 
 Ashton v. Dawson (Sel. Ch. Cas. 14) 125 
 
 ■u. Lord Langdale (4 De G. & Sm. 402; 17 L. T. 175; 20 L. J. Ch. 
 
 234; 15 Jur. 868) 29 
 
 Ashworth v. Munn (15 Ch. Div. 363; 43 L. T. (N.S.) 533; 50 L. J. Ch. 107; 
 
 28 W. E. 965) 31, 32 
 
 v. Munn (34 Ch. D. 391; 56 L. T. (N.S.) 86; 56 L. J. Ch. 451; 35 
 
 W. E. 513) 244 
 
 Aslatt v. Corporation of Southampton (16 Ch. D. 143; 43 L. T. (N.S) 464; 
 50 L. J. Ch. 31; 29 W. E. 117) . . '326 
 
 Astley v. Weldon (2 B. & P. 346) 40 
 
 Atherley *>. Harvey (2 Q. B. D. 524; 36 L. T. (N.S.) 5S1; 46 L. J. Q. B. 
 
 518; 25 W. E. 727) . . . 311 
 
 Atkinson v. Abbott (3 Drew. 251; 25 L. T. 314) 311 
 
 In re. Atkinson v. Bruce (31 Ch. Div. 577; 54 L. T. (N.S) 403; 
 
 55 L. J. Ch. 49; 34 W. E. 445) 155 
 
 Attorney-General v. Biphosphated Guano Co (11 Ch. D. 327; 27 W. E. 
 
 621; 40 L. T. (N.S.) 201) 240 
 
 A.-G. v. Birmingham Corpor. (15 Ch. Div. 423; 43 L. T. (N.S.) 77; 29 W. 
 
 E. 127) 302 
 
 ?<. Hubbuck (13 Q. B. Div. 275; 50 L. T. (N.S) 374; 53 L. J. Q. B. 
 
 146) 198. 200 
 
 r. Jones (1 Mac. & G. 574; 14 L. T. 287; 19 L. J. Ch. 266) . 151 
 
 v. Sidney Sussex Coll. (15 W. E. 162 ; 15 L. T. (N.S.) 518) .... 33 
 v. St. John's Hospital, Bedford (2 De G. J. & S. 621 ; 12 L. T. (N.S.) 
 
 714 ; 34 L. J. Ch. 441 ; 13 W. E. 955 ; 11 Jur. (N.S.) ) . . .31 
 »;. Tomline (7 Ch. D. 388 ; 38 L. T. (N.S.) 57 ; 47 L. J. Ch. 473 ; 26 
 
 W. E. 188) ; . . . 312 
 
 ii. Wax Chandler's Co. (L. E. 6 H. L. 1 ; 28 L. T. (N.S.) 681 ; 42 L. 
 
 J. Ch. 425 ; 21 W. E. 361) . . . . 27 
 
 i: Wyville (28 Beav. 464) ... .120 
 
 Attree v. Hawe (9 Ch. Div. 337 ; 38 L. T. (N.S.) 733 ; 47 L. J. Ch. 863 ; 26 
 
 W. E. 871 ) . . 29, 32 
 
 Atwood v. Maude (L. E. 3 Ch. 369 ; 16 W: E. 665) . . .81, 84 
 
 Atwool v. Ferrier (14 W. R. 1014 ; 14 L. T. (N.S.) 728) 300 
 
 Austerberry v. Corporation of Oldham (29 Ch. Div. 750 ; 53 L. T. (N.S.) 
 
 543 ; 55 L. J. Ch. 633 ; 33 W. E. 807) 138 
 
 Aylesford, Earl oft). Morris (L. E. 8 Ch. 484 ; 28 L. T. (N.S.) 541 ; 42 D. 
 
 J. Ch. 546 ; 21 W. R. 424) . . 130 
 
 Aylwinu. Witty (30 L. J. (Ch.) 860 ; 9 W. E. 720) . . 262 
 
 B. 
 
 Backhouse v. Charlton (8 Ch. D. 444 ; 26 W. E. 504) 177 
 
 Baddeley v. Baddeley (9 Ch. D. 113 ; 38 L. T. (N.S.) 906 ; 48 L. J. Ch. 36; 
 
 26 W. E. 850) 9 
 
 Badeley v. Consolidated Bank (34 Ch. D. 536 ; 55 L. T. (N.S.) 635 ; 35 W. 
 
 E. 106) . . 77 
 
TABLE OF CASKS. 11 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 Bagshaw i: Spencer (2 Atk. 577 ; 1 Ves. 142) .... . 20 
 
 Baile v. Baile (L. R. 13 Eq. 497 ; 26 L. T. (N.S.) 283 ; 41 L. J. Ch. 300 ; 
 
 20 W. R. 534) 194 
 
 Bailey, In re (12 Ch. D. 268 ; 41 L. T. (N.S.) 157 ; 48 L. J. Ch. 628 ; 27 
 
 W. R. 909) . 244 
 
 Bainesi'. Geary (35 Ch. D. 154 ; 56 L. T. (N.S.) 567) 90 
 
 Baird's Case (L. E. 5 Ch. 725 ; 23 L. T. (N.S.) 424 ; 18 "W. E. 1094) . . 61 
 Baker v. Gray (1 Ch. D. 491 ; 33 L. T. (N.S.) 721 ; 45 L. J. Ch. 165 ; 24 
 
 W. R. 171) 181 
 
 c. Sebright (13 Ch. D. 179 ; 41 L. T. (N.S.) 614 : 49 L. J. Ch. 65 ; 
 
 28 W. R. 177) 34 
 
 Ball v. Kemp-Welch (14 Ch. D. 612 : 43 L. T. (N.S.) 116 ; 49 L. J. Ch. 
 
 528) 50, 51 
 
 Barber, In re. Burgess v. Vinnicome (31 Ch. D. 665 ; 54 L. T. (N.S.) 375; 
 
 55 L. J. Ch. 373 ; 34 W. R. 395) 324 
 
 v. Mackrell (12 Ch. Div. 534 ; 41 L. T. (N.S.) 201 ; 27 W. R. 894) 85 
 
 Barker v. Vansommer (1 Bro. C. C. 149) 132 
 
 In re (17 Ch. Div. 241 ; 44 L. T. (N.S.) 33 ; SOL. J. Ch. 334 : 29 
 
 W. R. 873) 50 
 
 Barker's Trusts, In re (1 Ch. D. 43 ; 45 L. J. Ch. 52 ; 24 W. R. 264) . . 132 
 Barnard, In re. Edwards v. Barnard (32 Ch. Div. 447 ; 55 L. J. Ch. 935 ; 
 
 55 L. T. 40 ; 34 W. R. 782) 321 
 
 Barnes i: Addy (L. R. 9 Ch. 244 ; 30 L. T. (N.S.) 4 ; 43 L. J. Ch. 513 ; 22 
 
 W. R. 505) . . . 107, 110 
 
 Barnett v. Weston (12 Ves. 130) 169 
 
 Barney v. United Telephone Co (28 Ch. D. 394 : 52 L. T. fN.S.) 573 ; 33 
 
 W. R. 576) : ' 330 
 
 Barny v. Beake (2 Ch. Ca, 136) 132 
 
 Barrell. Ex parte (L. R. 10 Ch. 512 : 33 L. T. (N.S.) 115 ; 44 L. J. B. 138; 
 
 23 W. R. 846) , 42 
 
 Barrow r. Manning (W. N. 1880, p. 108) 181 
 
 Barrs-Haden's Settled Estates, In re (49 L. T. 661 ; 32 W. R. 194) . . 155 
 Basham, Re Hannay v. Basham (23 Ch. D. 195 ; 52 L. J. Ch. 408 ; 31 W. 
 R. 743 ; 48 L. T. 476) ... ... . 323 
 
 Bastard v. Proby (2 Cox 6) . . ... 21 
 
 Bateman v. Davis (3 Mad. 98) 106 
 
 Batthyany i: Walford (33 Ch. D. 624 ; 55 L. T. 509) 323 
 
 Bavspoole v. Collins (L. R. 6 Ch. 228 ; 25 L. T. (N.S.) 282 ; 40 L. J. Ch. 
 
 289 ; 19 W. R. 363) .11 
 
 Beak v. Beak (L. R. 13 Eq. 489 ; 41 L. J. (N.S.) 470) . . . . 123 
 Beckett v. Sutton (19 Ch. D. 646 ; 46 L. T. ;N.S.) 481 ; 51 L. J. Ch. 432 ; 
 
 30 W. R. 490) .... 49 
 
 Beckford v. Beckford (Loft. 490) 251 
 
 Beckitt b. Bilbrough (8 Ha. 188 ; 15 L. T. 85 (nom. Beckett v. Bilborough); 
 
 19 L. J. Ch. 522 (nom. Beckitt v. Bilborough) 308 
 
 Beddow v. Beddow (9 Ch. D. 89 ; 47 L. J. Ch. 588 ; 26 W. R. 570) . . 326 
 Belaney v. Belauey (L. R. 2 Ch. ; 16 L. T. (N.S.) 269 ; 36 L. J. Ch. 265 ; 
 
 15 W. R. 369) 53 
 
 v French (L. R. 8 Ch. 918; 29 L. T. (N.S.) 706 ; 43 L. J. Ch. 
 
 312 ; 22 W. R. 177 . . 196 
 
 Belcher, Ex parte (Arab. 218) 104 
 
 Bell v. Sunderland Building Society (24 Ch. D. 618 ; 49 L. T. (N.S.) 555 ; 
 
 53 L. J. Ch. 509) • 53 
 
 Beloved Wilkes's Charity, In re (3 Mac. & G. 440 ; 20 L. J. Ch. 588) . 115 
 
 Bengough v. Walker 115 Ves. 507) 257 
 
 Bennet v. Bennet (10 Ch. D. 474 ; 40 L. T. (N.S.) 378 ; 27 W. R. 573) 249, 250 
 
 ». Wvndham (4 D. F. & J. 259) 119 
 
 Benthall v. Earl of Kilmorey (25 Ch. Div. 39) 33 
 
12 TABLE OF CASES. 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 Berkley, In re (L. R. 9.Ch. 720 ; 31 L. T. (N.S.) 365 ; 43 L. J Ch 703) 12 
 
 Berny v. Pitt (2 Vera. 14) 132 
 
 Besant, In re (11 Ch. Div. 508; 40 L. T. (N.S.) 469; 48 L. J. Ch. 497; 27 
 
 W. E. 741) 277 
 
 j. Wood fl2 Ch. D. 605; 40 L. T. (N.S.) 445) 277 
 
 Bethell v. Abraham (L. E. 17 Eq. 24; 29 L. T. (N.S.) 715; 43 L. J. Ch. 180; 
 
 22 W. E. 179 112 
 
 Bethlehem and Bridewell Hospitals, In re (30 Ch. D. 541; 53 L. T. (N.S.) 
 
 558; 54 L. J. Ch. 1143; 34 W. E. 148) 153 
 
 Betts v. Burch (4 H. & N. 506; 33 L. T. 151; 28 L. J. Ex. 267; 7 W. E. 
 
 546) . . . • 41 
 
 Beynon v. Cook (L. E. 10 Ch. 389; 32 L. T. (N.S.) 353; 23 W. E. 531) . . 134 
 Bidders Bridges (29 Ch. Div. 29; 52 L. T. (N.S.) 455; 54 L. J. Ch. 798; 
 
 33 W. E. 792) 287 
 
 Biggs v. Peacock (22 Ch. Div. 284; 47 L. T. (N.S.) 341: 52 L. J. Ch. 1; 31 
 
 W. E. 148) 48 
 
 Bingham v. Bingham (1 Ves. 126) 65 
 
 Birchall, In re. Wilson r. Birchall (16 Ch. Div. 41; 44 L. T. (N.S.) 113- 
 
 29 W. E. 27) 210 
 
 Bird v. Wenn (33 Ch. D. 215; 54 L. T. (N.S.) 933; 55 L. J. Ch. 722; 34 W 
 
 E. 652) . . . . • 181. 183 
 
 Birt, In re. Birt v. Burt (22 Ch. D. 604; 48 L. T. (N.S.) 67; 52 L. J. Ch 
 
 397; 31 W. E. 334) 158 
 
 Biscoe v. Jackson (35 W. E. 152; 55 L. T. (N.S.) 607; 56 L. J. Ch. 93) 28 
 Bissett v. Jones (32 Ch. D. 635; 54 L. T. (N.S.) 603; 55 L. J. Ch. 648- 34 
 
 W. E. 591) 161. 162 
 
 Blair v. Bromley (5 Ha. 542; 2 Ph.' 354; 8 L. T. 234; 16 L. J. Ch. 105. 495- 
 
 11 Jur. 115, 617) 78 
 
 Blake v. Gale (32 Ch. Div. 571; 55 L. J. Ch. 559) 130 
 
 v. Harvev (29 Ch. Div. 827; 53 L. T. (N.S.) 541; 33 W. E. 602) 162 
 
 Ee. Jones r. Blake (29 Ch. Div. 913; 53 L. T. (N.S.) 302; 54 L. J 
 
 Ch. 880; 33 W. E. 886) 117 
 
 Bluck v. Capstick (12 Ch. D. 863; 41 L. T. (N.S) 215. 48 L. J. Ch. 766- 28 
 
 W. E. 75) .' . . . 83 
 
 Blyth & Young's Contract, In re (13 Ch. Div. 416; 41 L. T. (N.S.) 746- 28 
 
 W. E. 266) ' 9.3 
 
 Bolingbroke v. Hinde (25 Ch. D. 795; 32 W. E. 427; 53 L. J Ch. 704) . 183 
 Bolton v. Corporation of Liverpool (1 My. & K. 88; 1 L. J. (N.S.) Ch 166) 286 
 o. London School Bd. (7 Ch.,D. 466; 38 L. T. (N.S.) 277, 47 L j Ch 
 
 461; 26 W. E. 549) 328 
 
 ,-. Ward (4 Ha. 430; 5 L. T. 284; 14 L. J. Ch. 361) . 46 
 
 Bonnewell v. Jenkins (8 Ch. Div. 70; 38 L. T. (N.S.) 581; 47 L. J Ch 758- 
 
 26 W. E. 294) ....... . . . . '95 
 
 Borough of Hackney Newspaper Co. In re (3 Ch. D. 669) . . 56 
 
 Bostoek !\ Floyer (35 Beav. 603; 13 L. T. (N.S.) 489; 35 L. J. Ch 23- 14 
 
 W. R. 120; 11 Jur. (N.S.) 962) '. . 104 
 
 Boughton, In re. Boughton v. Boughton (23 Ch. D. 169; 48 L T (NS ) 
 
 413; 31 W. E. 517) . . .... 196 
 
 Bouts v. Ellis (17 Beav. 121; 4 D. M. & G. 249) 123 
 
 Bown, In re. O'Halloran v King (27 Ch. D. 411; 50 L. T. 796; 33 W E 
 
 58; 53 L. J. 881) o 32 
 
 Boyd v. Allen (24 Ch. D. 622; 48 L. T. (N.S.) 628; 53 L. J. Ch. 701- 31 W 
 
 E. 544) ! . . . 49 
 
 Brandon, Ex parte (34 W. E. 352; 54 L. T. (N.S.) 128) ... 306 
 
 Breton, In re. Breton v. Woollven (17 Ch. D. 416; 44 L. T. (N.S.) 337- 
 
 50 L. J. Ch. 369; 29 W. E. 777 (nom. Breton r. Woolhurn)) <> 
 
 Brier, In re (26 Ch. Div. 238; 51 L. T. (N.S.) 133; 33 W. E. 20) 105 310 
 
 Briggs r. Jones (L. E. 10 Eq. 92; 23 L. T. (N.S.) 212) . . ' 169 
 
TABLE OF CASES. 13 
 
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 PAGE 
 
 Bristowe v. Waid (2 Ves. Juu. 336) . . 
 
 Britain v. Rossiter (11 Q. B. Div. 123; 40 L. T. (N.S.) 240; 48 L. j. Ex. 
 
 362; 27 W. R. 482) 100, 101 
 
 British and Foreign Contract Co. ,: Wright (32 W. R. 413) 291 
 
 Briton Medical & General Life Assurance Association (32 Ch. D. 503; 55 L. 
 
 J. Ch. 416; 54 L. T. 152; 34 W. K. 390) 328 
 
 Brittain v. Overton (25 Ch. D. 41 n.; 49 L. T. (N.S.) 128 n • 53 L. j. Ch. 
 
 299 n.; 32 W. R. 27 n.) 33 
 
 Broadwater Estate, In re (33 W. R. 738; 53 L. T. (N.S.) 745; 54 L. j. Ch. 
 
 1104) . 154 
 
 Bromley c Davenport (L. R. 6 Eq. 275) ... 123 
 
 Brook v. Badley (L. R. 3 Ch. 672: 16 W. R. 947; 37 L. J. Ch. 884) ... 32 
 Broughton v. Broughton (5 B. M. & G. 160; 26 L. T. 54; 25 L. J. Ch. 250; 
 3 W. R. 602; 1 Jur. (N.S.) 965 . . . 188 
 
 Brown r. Ethel, In re (13 Q. B. Div. 614) ... 277 
 
 In re. Brown p. Brown (29 Ch. D. 889; 52 L. T. (N.S.) 853; 54 L. 
 
 J. Ch. 1134; 33 W. R. 692) 117 
 
 In re. Dixon v. Prown (32 Ch. D. 597; 54 L. T. (N.S.) 789; 55 
 
 L. J. Ch. 556) 67 
 
 i.. Collins (25 Ch. D. 56; 53 L. J. Ch. 368; 49 L. J. (N.S.) 329) . 279 
 ... Gellatly (L. R. 2 Ch. 751; 17 L. T. (N.S.) 131; 15 W. R. 1188 212 
 
 i. Perkins (2 Ha. 540; 8 Jur. 186) . ... 292 
 
 r. Rye iL. R. 17 Eq.,343; 29 L. T. (N.S.) 872; 43 L. J. Ch. 228) 184 
 r. Sewell (16 Ch. Div. 517; 44 L. T. (N.S.) 41; 29 W. R. 295) . . 291 
 ... Trotman (12 Ch. D. 880; 41 L. T. (N.S.) 179; 48 L. J. Ch. 862; 
 
 W. R. 164) 196 
 
 Brown v. Watkins (16 Q. B. D. 125 ; 53 L. T. (N.S.) 726; 55 L. J. Q. B. 
 
 126; 34 W. R. 293) 287 
 
 Brown's Will, In re (27 Ch. D. 179; 53 L. J. Ch. 921; 51 L. T. (N.S.) 156; 
 
 32 W. R. 894) . ... 154 
 
 Browne v. Cavendish (1 Jon. & La. 606) 18 
 
 Brownson ». Lawrence (L. R. 6 Eq. 1; 18 L. T. (N.S.) 143; 37 L. J. Ch. 
 
 351 ; 16 W. R. 535, 927) 218 
 
 Bruce v. Garden (L. R. 5 Ch. 32; 17 W. R. 990; 20 L. T. (N.S.) 1002) 267. 
 
 Bryant, In re (4 Ch. D. 98; 35 L. T. 489; 25 W. R. 230) 330 
 
 Brydges r. Branfill (12 Sim. 369; 11 L. J. Ch. 249) 78 
 
 Bubb v. Padwick (13 Ch. D. 517; 42 L. T. (N.S.) 116; 49 L. J. Ch. 178; 
 
 28 W. R. 382) 
 
 Buckmaster v. Harrop (7 Ves. 341; 13 Ves. 456) . 
 Bulley v. Bulley (8 Ch. Div. 479; 38 L. T. (N.S.) 401 
 
 26 W. R. 638) 
 
 Bulmer v. Hunter (L. R. 8 Eq. 46; 20 L. T, (N.S.) 942 
 
 Burge v. Brutton (2 Ha. 373; 7 Jur. 988; 12 L. J. Ch. 368) 187 
 
 Burnell v. Burnell (11 Ch. D. 213; 48 L. J. (Ch.) 412; 27 W. R. 749) . . 297 
 Burroughs Lynn & Sexton's Contract (5 Ch. Div. 601; 36 L. T. (N.S.) 778; 
 
 46 L. J. Ch. 528; 25 W. R. 520) . ■ 92 
 
 Bursill s. Tanner (13 Q. B. D. 691; 50 L. T. (N.S.) 589; 32 W. R. 827) . 146 
 Burstall v. Beyfus (26 Ch. Div. 35; 50 L. T. (N.S.) 542; 53 L. J. Ch. 565 
 
 32 W. R. 418) . 
 
 Busfield, In re. Whaley v. Busfield (32 Ch. Div. 123; 54 L. T. (N.S.) 220 
 
 55 L. J. Ch. 467; 34 W. R. 372) 
 
 Butler v. Butler (16 Q. B. Div. 377; 54 h. T. (N.S.) 591; 55 L. J. Q. B. 55 
 31 W. R. 132) ... 146 
 
 c. 
 
 Caballeroi). Hanty (L. R. 9 Ch. 447; 30 L. T. (N.S.) 314; 43 L. J. Ch. 
 
 635, 22 W. R. 446) 240 
 
 Cadogan v. Kennett (Cowp. 432) • . 219 
 
 112 
 101 
 
 47 L. J. Ch. 841; 
 194 
 
 38 L. J. Ch. 543) 221 
 
 110 
 
 93 
 
14 TABLE OF CASES. 
 
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 PAGE 
 
 Caird v. Moss (33 Ch. Div. 22; 55 L. J. (N.S.) C'h. 854; 54 L. T. 33; 34 \V. 
 
 R. 485, 35 W. E. 52 Appeal) 69 
 
 Campbell, In re. Campbell r. Campbell (16 Ch. D. 198; 43 L. T. (N.S. ) 
 
 727; 29 W. R. 233) 159 
 
 Campbell's Trusts, In re (31 Beav. 176; 10 W. E. 640; 31 L. J. Ch. 821) 12 
 Campden Charities (18 Ch. Div. 310; 45 L. T. (N.S.) 155; 50 L. J. Ch. 640; 
 
 30 W. E. 496) 23 
 
 Cannon r. Johnson (L. K. 11 Eq. 90; 23 L. T. (N.S.) 583; 40 L. J. Ch. 46; 
 
 19 W. E. 175) 50 
 
 Cape Breton Co., In re (29 Ch. Div. 795; 53 L. T. (N.S.) 181; 54 L. J. Ch. 
 
 822; 33 W. E. 788) . . , 191 
 
 Capital Fire Insurance Association, In re (24 Ch. Div. 408) . . . 196 
 
 Capon's Trusts, In re (10 Ch. D. 484; 27 W. E. 376; 48 L. J. Ch. 355) . 229 
 Cardigan i: Curzon-Howe (30 Ch. D. 531; 53 L. T. (N.S.) 704; 55 L. J. 
 
 Ch. 71 ; 33 W. R. 836) 150 
 
 Cardinall v. Cardinall (25 Ch. D. 772; 32 W. E. 411; 53 L. J. Ch. 636) . 294 
 Cargill v. Bower (10 Ch. D. 502; 38 L. T. (N.S.) 779; 47 L. J. Ch. 649; 26 
 
 W. E. 716) . .207 
 
 Carlyon, Re. Carlyon v. Carlyon (35 W. R. 155) .... .321 
 
 Carter*. Dean of Ely (7 Sim. 211; 4 L. J. (N.S.) Ch. 132) . 246 
 
 Carter r. Wake (4 Ch. D. 605; 46 L. J. Ch. 841) 165, 166 
 
 Caton v. Caton (L. R. 2 H. L. 127; 16 W. R. 1 ; 36 L. J. Ch. 886) .... 102 
 Cave v. Cave (15 Ch. D. 639; 42 L. T. (N.S.) 730; 49 L. J. Ch. 505; 28 W. 
 
 R. 798) 241 
 
 Chambers v. Kingham (10 Ch. D. 743; 39 L. T. (N.S.) 472: 48 L. j. Ch. 
 
 169; 27 V. R. 289) . . . . . ... 52 
 
 Chancellor. In re. Chancellor r. Brown (26 Ch. Div. 42; 51 L. T. (N.S.) 
 
 33; 53 L. J. Ch. 443; 32 W. E. .465) 213 
 
 Chancey's Case (2 W. & T. L. C. 379; 1 P. W. 408) 253 
 
 Chandler, In re (22 Beav. 253; 27 L. T. 61; 25 L. J. Ch. 396; 2 Jur. (N.S.) 
 
 366) i ,109 
 
 v. Howell (4 Ch. D. 651; 35 L. T. (N.S.) 592; 46 L. J. Ch. 25; 
 
 25 W. E. 55) .... 29 
 
 •Chappie, In re. Newton v. Chapman (27 Ch. D. 584) . 187 
 
 Chattoch v. Muller (8 Ch. D. 177) .102 
 
 Chaytor's Settled Estate Act, In re (25 Ch. D. 651; 50 L. T. (N.S.) 88; 53 
 
 L. J. Ch. 312; 32 W. E. 517) 150, 154, 155 
 
 Chennell, In re. (8 Ch. D. 492; 47 L. J. (N.S.) Ch. 583 121 
 
 Chesham, In re. Cavendishe r. Dacre (31 Ch. D. 466; 55 L. J. Ch. 401; 54 
 
 L. J. (N.S.) 154; 34 W. R. 321) 214 
 
 Chesworth r. Hunt (5 C. P. D. 266; 42 L. T. (N.S.) 774; 49 L. J C P 
 
 507; 28 W. E. 815) 181 
 
 Chichester v. Coventry (L. E. 2 H. L. 71, 95; 17 L. T. (N.S.) 35; 36 L. j 
 
 Ch. 673; 15 W. E. 849) .... . 255, 256 
 
 Childr. Douglas (2 Jur. (N.S.) 9501 139 
 
 Chinnery r. Evans (11 H. L. C. 115; 11 L.T. (N.S.) 68; 10 Jur. (N.S.) 855) 128 
 Chown v. Parrott (14 C. B. (N.S.) 74; 8 L. T. (N.S.) 391; 32 L. J. C. P. 
 
 197; 11 W. R. 668) 210 
 
 Christie v. Christie (L. R. 8 Ch. 499; 28 L. T. (N.S.) 607; 42 L. j. Ch 
 
 544; 21 W. E. 493) . . 299 
 
 Christmas, In re. Martin r. Lacon (33 Ch. D. 332: 55 L. T. (N S j 197 • 
 
 55 L. J. Ch. 878; 34 W. R. 779) ' 32 
 
 Churton v. Douglas (Johns. 174; 33 L. T. 57; 28 L. J. Ch. 841; 7 AY E 
 
 365; 5 Jur. (N.S.) 887) 88 
 
 City of London Brewery v. Tenuant (L, E. 9 Ch. 212) 309 
 
 Clack v. Carl on (7 Jur. (N.S.) 441) 187 
 
 v. Holland (19 Beav. 262 ; 24 L. T. 49 ; 18 Jur. 1007 : 24 L. j. Ch 
 
 13 ; 2 W. E. 402) . . . . o 63 
 
TABLE OF OASES. 15 
 
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 Clagett, In re. Fordham <>. Clagett (20 Ch. Div. 637: 46 L. T. (N.S.) 719; 
 
 30 W. R. 857) . . .282 
 
 Claphamu. Andrews (27 Cb. I>. 679; 51 L. T. (N.S.) 86; 53 L. J. Ch. 792; 
 
 33 W. R. 396) 180 
 
 Clarke v. Palmer (21 Ch. D. 124; 48 L. T. (N.S.) 85*7; 51 L. J. Ch. 634) 168 
 
 *. Thornton (35 W. R. 603; 56 L. T. (N.S.) 294) 154 
 
 Clarke's Trusts, In re '21 Ch. D. 748; 51 L. J. (N.S.) 855 ; 30 W. R. 778 ; 
 
 47 L. T.43) '233 
 
 Clay and Tetley, In re (1G Ch. Div. 3 ; 43 L. T. (N. S.) 402 ; 50 L. J. Ch. 
 
 164; 29 W. R. 5) . . . 93 
 
 Clayton's Case (1 Mer. 572) . . . 4 
 
 Cleather v. Twisden (28 Ch. Div. 340 ; 52 L. T. (N.S.) 330 ; 54 L. j. Ch. 
 
 408; 33 W. R. 435) 77 
 
 Clement r. Cheesman (27 Ch. D. 631; 33 W. R. 40; 54 L.- J. Ch. 158) . 123 
 
 Clapham v. Lord Provost of Edinburgh (L. R. 1 H. L. Se. 417) 26 
 
 Clergy Orphan Corporation, In re (L. R. 18 Eq. 280 ; 30 L. T. (N.S.) 806 ; 
 
 22 W. R. 789) . 106 
 
 Clerk v. "Wright (1 Alk. 12) . . . . . 101 
 
 Clinan v. Cooke (1 Sch. & Let. 22) 101 
 
 Clinton's Trusts, In re (L. R. 13 Eq. 295; 26 L. T. (N.S. 159; 41 L. J. Ch. 
 
 191; 20 W. R. 326) 143 
 
 Clitheroe Estate, In re (28 Ch. D. 378, affd. 31 Ch. Div. 135 ; 53 L. T. 
 
 (N.S.) 733; 54 L. J. Ch. 401, affd. 55 L. J. Ch. 107; 34 W. R. 169 (nom. 
 
 Duke of Bnccleuch's Estate) ... ... . . . . 150, 155 
 
 Close, Ex parte (14 Q. B. Div. 386; 33 "W. R. 228; 54 L. J. Q. B. 43; 51 L. 
 
 T. 795) . 174 
 
 Clover c. Adams (6 Q. B. D. 622) 196 
 
 Coates to Parsons, In re (34 Ch. Div. 370; 56 L. T. (N.S. ) 16; 56 L. J. Ch. 
 
 242; 35 W. R. 375) 93 
 
 Coatsworth r. Johnson (55 L. J. Q. B. 220; 54 L. T. (X.S.) 520) 42, 137 
 
 Cochrane v. Matthews (10 Ch. D. 80 (m) ) . . . . 172. 173 
 
 Cockburn v. Edwards (18 Ch. Div. 449; 51 L. J. 46 ; 30 AV. R. 446 ; 45 L. 
 
 T. 500) . 192 
 
 Cockcroft, In re. Broadbent v. Groves (24 Ch. D. 94; 49 L. T. (N.S.) 497; 
 
 52 L. J. Ch. 811; 32 W. R. 223) .... 210, 217 
 
 Cocks v. Foley (1 Vern. 359) . . . .'. 308 
 
 Codrington v. Lindsay (L. R. 8 Ch. App. 578) . . . . 273 
 
 Coffin r. Coffin (Jac. 70) . . i . . . ... 37 
 
 r. Cooper (6 Ves. 514) . , . . . . . 300 
 
 Cogan v. Duffield (2 Ch. Div. 44; 34 L. T. (N.S.) 593 ; 45 L. J. Ch. 307 ; 
 
 24 W. R. 905) . 21 
 
 Colebourne v. Colebourne 1 Ch. D. 690; 24 W. R. 235; 45 L. J. Ch. 749) . 282 
 Coleman and Jarrom, In re (4 Ch. D. 165 ; 35 L. T. (N.S.) 614 ; 46 L. J. 
 
 Ch. 33; 25 W. R. 137) 92 
 
 Coleman v. Llewellin (34 Ch. D. 143) . . ... 284 
 
 Collier v. Chadwick (not reported) 90 
 
 Collins v. Stimson (11 Q. B. D. 142; 48 L. T. (N.S.) 828; 52 L. J. Q. B. 440) 6 
 
 Colombine r. Penhall (1 Sm. & G. 228; 1 W. R. 272) 220 
 
 Colonial Bank v. The Exchange Bank of Yarmouth, Nova Scotia (11 App. 
 
 Cas. 84; 54 L. T. (N.S.) 256; 55 L. J. P. C. 14;"34 W. R. 417) .... 71 
 Colonial Trusts Corporation, In re. Ex parte Bradshaw (15 Ch. D. 465) 58 
 Colyer v. Finch (5 H. L. C. 905 ; 28 L. T. 27 ; 3 Jur. (N.S.) 25 ; 26 L. J. 
 
 Ch 65) 169 
 
 Commercial Bank of India, In re (L. R. 6 Eq. 517) 236 
 
 Commercial Bank of South Australia, In re (33 Ch. D. 174; 55 L. T. (N.S.) 
 
 600; 55 L. J. Ch. 670) " 236 
 
 Compton, In re. Norton v. Compton (30 Ch. Div. 15; 53 L. T. (N.S.) 410; 
 
 54 L. J. Ch. 904) . . : . . . .159 
 
16 TABLE OF OASES. 
 
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 PAGE 
 
 Coney, In re. Coney v. Bennett (29 Ch. D. 993 ; 52 L. T. (N.S.) 961 ; 54 
 
 L. J. Ch. 1130 ; 33 W. E. 701) 284 
 
 Conolan v. Leyland (27 Ch. D. 632 ; 54 L. J. Ch. 132 ; 33 AV. R. Ch. dig. 
 
 94; 51 L. T. (N.S.) 895) 146 
 
 Constable v. Constable (32 Ch. D. 233; 34 AV. R. 470; 55 L. J. Ch. 491; 54 
 
 L. T. 608) 154, 156 
 
 Consterdine v. Consterdine (31 Beav. 330; 7 L. T. (N.S.) 122; 8 Jur. (N.S.) 
 
 906; L. J. Ch. 807; 10 W. R. 727) 106 
 
 Cooke, Ex parte. In re Strachan (4 Ch. Div. 123; 35 L. T. (N.S.) 649: 46 
 
 L. J. B. 52; 25 W. R. 1711 . . 2, 4 
 
 v. Chilcott (3 Ch. D. 694; 34 L. T. (N.S.) 207) . 141 
 
 v. Dealev (22 Beav. 196) ... • 199 
 
 Cooper, Ex parte (W. N. 1882, p. 96) . . 252 
 
 (,. Cooper (L.- R. 7 H. L. 71; 43 L. J. Ch. 158; 22 AV. R. 713; 44 L. 
 
 J. Ch. 6; 30 L. J. 409) 273 
 
 v. Macdonald (L. R. 16 Eq. 258; 28 L. T. (N.S.) 693; 42 L. J. Ch. 
 
 533, 539; 21 W. R. 833) 256 
 
 ■u. Phibbs (L. R. 2 H. L. 149; 16 L. T. (N.S.) 678) .... 66, 68 
 
 v. AVhittingham (15 Ch. D. 501; 28 W. R. 720; 43 L. T. 16) 330 
 
 Copp, In re (32 W. R. 25) . 312 
 
 Corbyn v. French (Tudor R. P. C. 561; 4 Ves. 418) 31, 224 
 
 Corsellis, In re. Lawton v. Elwes (34 Ch. Div. 675 ; 56 L. T. (N.S.) 411 ; 
 
 56 L. J. Ch. 294; 35 W. R. 309) .184 
 
 Coslake i; Till (1 Russ. 376) 247 
 
 Costabadie v. Costabadie (6 Ha. 410; 11 Jur. 345; 16 L. J. Ch. 259) ... 115 
 Cottrell v. Cottrell (28 Ch. D. 628 ; 52 L. T. (N.S.) 486 ; 54 L. J. Ch. 417 ; 
 
 33 AV. R. 361) .... . ... 153 
 
 r. Stratton (L. R. 8 Ch. 295) 121 
 
 Countess of Dudley r. L. &N. W. Ry. Co. (33 AV. R. 492; 56 L. J. (N.S.) 478) 152 
 Course v. Humphrey (26 Beav. 402) . 120 
 
 Courtenay r. Wright (2 Giff. 337) 268 
 
 Courtier, In re. Coles v. Courtier (34 Ch. Div. 136 ; 55 L. T. (N.S.) 574 ; 
 
 56 L. J. Ch. 350; 35 W. R. 85) 117 
 
 Cousins, In re (31 Ch. D. 671 ; 54 L. T. (N.S.) 376 ; 55 L. J. Ch. 662 ; 34 
 
 W. R. 393) . ' . 241 
 
 Courts r. Acworth (L. R. 9 Eq. 519) 273 
 
 Cowles r. Gale (L. R. 7 Ch. 12 ; 25 L. T. (N.S.) 524 ; 41 L. J. Ch. 14 ; 20 
 
 W. R. 70) . . . .... 247 
 
 Cox v. Bishop (8 De G. M. & G. 815) 137 
 
 In re. Cox r. Davie (7 Ch. D. 204 ; 37 L. T. (N.S.) 457 (nom. Cox 
 
 Davies); 47 L. J. Ch. 72; 26 AV. R. 74) 32 
 
 «\ Hickman (8 H. L. C. 268 ; 3 L. T. (N.S.) 185 ; 30 L. J. C. P. 125) 75 
 Coxhead v. Mullis (3 C. P. D. 439; 47 L. J. (N.S.) Q. B. 761; 27 AV. R. 136; 
 
 39 L. T. (N. S. 349) 134 
 
 Coyle v. Cumming (40 L. T. (N.S.) 455; 27 AV. R, 529) 300 
 
 Cracknall v. Janson (11 Ch. D. 1 ; 40 L. T. (N.S.) 640 ; 48 L. J. Ch. 168 
 
 (Fry, J.); 27 AV. R. 851) . . . 181,300 
 
 Cradock v. Piper (1 Mac. & G. 664) .... . . 185, 186, 188 
 
 Crawford v. Toogood (13 Ch. D. 153; 41 L. T. (N.S. ) 549; 49 L. J. Ch. 108; 
 
 ' 28 AV. R. 248) 247 
 
 Croft r. London & County Banking Co. (14 Q. IS. Div. 347; 52 L. T. (N.S.I 
 
 374; 54 L. J. Q. B. 277) 43 
 
 Crookes v. AVhitworth (10 Ch. D. 289 ; 39 L. T. (N.S. ) 348 ; 27 AV. R. 149 
 
 (nom. Crookes v. AVhitaker) ) ". . . 50 
 
 Crossfield v. Shurmur (24 Ch. D. 597; 49 L. T. (N.S.) 156; 53 L. J. Ch. 87; 
 
 31 AV. R. 884) 11 
 
 Crossley «>. City of Glasgow Life Assur. Co. (4 Ch. D. 421; 46 L. J. Ch. 65; 
 
 25 AV. R. 264; 36 L. T. 285) . .... .266 
 
TABLE OF CASES. 17 
 
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 Crossley v. Maycock (L. R. 18 Eq. 180; 43 L. J. Ch. 379; 22 W. R. 387) . 95 
 Croughton's Trusts, In re (8 Ch. D. 460 ; 38 L. T. 447 ; 26 W. R. 574 : 47 
 
 L. J. Ch. 795) 233 
 
 Crowtheru.'Elgood (34 Ch. Div. 691; 35 W. R. 369) . . ... 7 
 
 v. Thorley (32 W. R. 330; 50 L. T. (N.S.) 43) . . . ,162 
 
 Crozier v. Dowsett (31 Ch. D. 67 ; 34 W. R. 267 ; 55 L. J. (Chy.) 210 ; 53 
 
 L. T. 592) 182 
 
 Cruttwell v. Lye (17 Ves. 335) 88 
 
 Cummins v. Fletcher (14 Ch. Div. 699 ; 42 L. T. (N.S.) 859 ; 49 L. J. Ch. 
 
 563; 28 W. R. 772) 180 
 
 Cunynghame's Settlement, In re (L. R. 11 Eq. 324 ; 24 L. T. (N.S.) 124 ; • 
 
 40 L. J. (Chy.) 247; 19 W. R. 381) 232 
 
 Currants. Jago (1 Coll. 261; 3 L. T. 240; 8 Jur. 610) 251 
 
 Curtius v. Caledonian Fire and Life Assur. Co. (19 Ch. D. 534; 51 L. J. Ch. 
 
 80; 30 W. R. 125; 45 L. T. 662) 266 
 
 D. 
 
 Dadswell v. Jacobs (34 Ch. Div. 278; 35 "W. R. 261; 56 L. J. Ch. 233) . . 292 
 Dale & Co., Ex parte (11 Ch. D. 772 ; 40 L. T. (N.S.) 712; 48 L. J. Ch. 
 
 600; 27 "W. R. 815) 2 
 
 D'Angibau, Iu re. Andrews v. Andrews (15 Ch. Div. 228; 43 L. T. (N.S.) 
 
 135; 49 L. J. Ch. 756; 28 W. R. 930) 228 
 
 Daniell v. Sinclair (6 App. Cas. 181 ; 44 L. T. (N.S.) 257 ; 29 W. R. 569 ; 
 
 50 L. J. P. C. 50) . . 72 
 
 Daniels v. Davison (16 Ves. 249) 240 
 
 Darby v. Darby (3 Drew. 495) 200 
 
 Daubeny v. Co'ckburn (1 Mer. 626) 228 . 
 
 Davey v. Ward (7 Ch. D. 754; 26 W. R. 390; 47 L. J. Ch. 335) 115 
 
 Davidson, In re. Martin v. Trimmer (11 Ch. Div. 341) . .... 201 
 
 Davies v. Davies ("W. N. 1887, p. 65) 90 
 
 u. London and Provincial Insur. Co. (8 Ch. D. 469 ; 47 L. J. 511 ; i 
 
 26 W. R. 794; 38 L. T. 478) 261 
 
 v. Sear (L. R. 7 Eq. 427; 20 L. T. 56; 38 L. J. (Ch.) 545; 17 W. R. 
 
 390) 240. 
 
 v. Thomas (2 Y. & C. Ex. Cas. 234; 7 L. J. (N.S.) Ex. Eq. 21) . 241 
 Davis v. Burton (11 Q. B. Div. 537; 52 & 72 B. 636; 32 W. R. 413) . . . 174 
 v. Davis (13 Ch. D. 861 ; 41 L. T. (N.S.) 790 ; 49 L. J. Ch. 241 ; 28 
 
 W. R. 345) . . 210 
 
 v. The Duke of Marlborough (2 Sw. 108) . .132. 
 
 v. Morier (2 Coll. 303) . 65 
 
 v. Rees (17 Q. B. Div. 408) 174 
 
 Day v. Browning (10 Ch. Div. 294; 39 L. T. (N.S.) 553 ; 48 L. J. Ch. 173 ; 
 
 27 W. R. 217) 324 
 
 v. Lnhke (L. R. 5 Eq. 336; 16 W. R. 717; 37 L. J. Ch. 330) . . . 247> 
 DeCauxo. Skipper (31 Ch. Div. 635 ; 54 L. T. (N.S.) 481 ; 34 "W. R. 402) 180 
 De Cordova v. De Cordova (4 App. Cas. 692; 41 L. T. (N.S.) 43 ; 28 W. R. 
 
 105) 210 
 
 Delhasse, Ex parte. Megevand, In re, 7 Ch. Div. 511; 47 L. J. Ch. 65; 38 
 L. T. 106; 26 W. R. 338; C.J., 37 L. T. 443; 26 "W. R. 26) . 76 
 
 Denham, In re (25 Ch. D. 752) 207 
 
 Depue v. Bedborough (4 Gifi. 479 ; 9 L. T. (N.S.) 532 : 33 L. J. Ch. 134 ; 
 
 12 W. R. 191 ; 9 Jur. (N.S.) 1317) ... .42 
 
 De Pereda v. De Mancha (19 Ch. D. 451) .... . . . . 279 
 
 Dering v. Earl of Winchelsea (1 Cox 318) 259 
 
 Desborough v. Harris (5 D. G. M. & G. 439 ; 26 L. T. 1 ; 1 Jur. (N.S.) 
 
 • 986 ; 4 W. R. 2) 264 
 
 Detillin v. Gale (7 Ves. 583) 182 
 
 2 MODERN EQUITY. 
 
18 TABLE OF CASES. 
 
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 PAGE 
 
 Dickinson v. Dodds (2 Ch. Div. 463; 34 L. T. (N.S.) 607; 45 L. J. Ch. 
 
 777; 24 W. E. 594) . 98 
 
 Dillon v, Parker. (1 Swans. 359) . . . 271 
 
 Dimes v. Scott (4 Euss. 195) 213 
 
 Ditcham v. Worrall (5 C. P. D. 410 ; 49 h. J. C. P. 688 ; 29 AV. E. 59 ; 43 
 
 L. T. 286) . ... 134 
 
 Dixon, In re. Dixon v. Smith (35 Ch. Div.- 4) ........ . . . 146 
 
 Doble v. Manley (28 Ch. D. 664 ; 52 L. T. (N.S.) 246 ; 54 L. J. Ch. 636 ; 
 
 33 W. E. 409) .... 162 
 
 Docker v. Somes (2 M. & K. 664) 185 
 
 Docwra v. Faith (29 Ch. D. 693 : 53 L. T. (N.S.) 288 ; 54 L. J. Ch. 1121 ; 
 
 33 W. E. 574) 11 
 
 Dodds v. Tuke (25 Ch. D. 617 ; 53 L. J. Ch. 598 ; 32 W. E. 424 ; 50 L. T. 
 
 320) 121 
 
 Doherty v. Allman (3 App. Cas. 709 ; 39 L. T. (N.S.) 129 ; 26 AA'. K. 513). 38 
 
 Doloretc. Eothschild (1 S. & S. 590; 2 L. J. Ch. 125) 246 
 
 Dolphin v. Aylward (L. E. 4 H. L. 486; 23 L. T. (N.S.) 686); 19 AV. 11. 49) 223 
 
 Donaldson, In re (27 Ch. D. 544) 188 
 
 v. Donaldson (1 Kav 711 ; 1 Jur. (N.S.) 10 ; 23 L. J. Ch. 788 ; 
 
 2 AV. E. 691) . . 10 
 
 Donnell v. Bennett (22 Ch. D. 835) .329 
 
 Drapers' Co. v. McCann (1 L. E. Ir. 13) ... . . 93 
 
 Draycott v. Harrison (17 Q. B. D. 147) 146 
 
 Drinkvvater d. Eatcliffe (L. E. 20 Eq. 528 ; 33 L. T. (N.S.) 417 ; 44 L. J. 
 
 Ch. 605 ; 24 AV. B. 25) 49 
 
 Drummond v. Drummond (L. E. 2 Ch. 32 ; 15 L. T. (N.S.) 337 ; 36 L. J. 
 
 Ch. 153; 15 AV. E. 267) 305 
 
 Dryden v. Frost (3 My. & Cr. 670 ; 2 Jur. 1030 ; 8 L. ,T. (N.S.) Ch. 235) . 182 
 
 Drysdaler. Piggott (1 D. M. & G. 546) 268 
 
 Dublin Drapery Co., Limited, In re. Cox, Ex parte (13 L. E. (Ir.) Ch. 
 
 D. 174) 57 
 
 . Duke of Bedford v. Trustees of British Museum (2 My. & K. 552) . 142 
 
 Duffield v. Elwes (1 Bligh (N.S.) 543) 125 
 
 Duke of Marlborough v. Sartoris (32 Ch. D. 616 ; 56 L. J. Ch. 70 ; 35 AV. 
 
 , E. 55 ; 55 L. T. (N.S.) 506) 155 
 
 Duke of Marlborough's Settlement, In re (32 Ch. Div. 1 ; 55 L. J. Ch. 339; 
 
 34 AV. E. 377 ; 54 L. T. 914) 154 
 
 Dundonald. Earl of, v. Masterman (L. E. 7 Eq. 504 ; 20 L. T. (N.S.) 271 : 
 
 38 L. J. Ch. 350 ; 17 AV. E. 548) 79 
 
 Dunlop r. Higgins (1 H. L. C. 381) .... 98 
 
 Dunn v. Campbell (27 Ch. D. 254, n.) . 297 
 
 Dunne v. Boyd (S I. E. Eq. 609) 125 
 
 Durrant v. The Ecclesiastical Commissioners (6 Q. B. D. 234 ; 29 AV. E. 
 
 443 ; 44 L. T. 346) 72 
 
 Dutton v. Thompson (23 Ch. Div. 278 ; 49 L. T. (N.S.)" 109 ; 52 L. J. Ch. 
 
 661 ; 31 AV. E. 596) 220 
 
 Dyer v. Dyer (2 Cox, 92) 249 
 
 In re. Dyer v. Pavnter (33 AV. E. 806 ; 53 L. T. (N.S.) 744 ; 54 L. 
 
 J. Ch. 1133) 47 
 
 Dymond v. Croft (3 Ch. Div. 512) 160, 161 
 
 E. 
 
 Eager, In re. Eager v. Johnstone (22 Ch. Div. 86 ; 47 L. T. (N.S.) 685 ; 
 
 • 52 L. J. Ch. 56,; 31 AV. E. 33) 304 
 
 Earl Beauchamp v. Winn (L. E. 6 H. L. 223) 66, 71, 72 
 
 Earl de la AVarr's Estates, In re (16 Ch. D. 587 ; 50 L. J. Ch. 383 ; 44 L. 
 T (N.S. 56 ; 29 AV. E. 350) • 121 
 
y TABLE OF CASES. 19 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 Earl of.Aylesford v. Morris (L. E. 8 Ch. 484) 130, 134 
 
 Earl of Aylesford's Settled Estates, In re (32 Ch. D. 162 ; 54 L. T. (N.S.) 
 
 414 ; 55 L. J. Ch. 523 ; 34 W. E. 410) 154 
 
 Earl of Chesterfield v. Jarnssen (2 Ves. Senr. 125) 131 
 
 Earl of Dundonald v. Masterman (L. E. 7 Eq. 504 ; 20 L. T. (N.S) 271 ; 
 
 38 L. J. Ch. 350 ; 17 W. B. 548) 79 
 
 Earle and "Webster's Contract, In re (24 Ch. D. 144 ; 48 L. T. (N.S.) 961 ; 
 
 52L..J. Ch. 828; 31 W. B. 887) 93 
 
 Eastwood v. Lever (4 De G. & S. 114) 140 
 
 Ebrand v. Dancer (2 Ch. Ca. 26) • 251 
 
 Eden v. Weardale Iron & Coal Co. (34 Ch. Div. 223 ; 35 Ch. Div. 287 ; 55 
 
 L. T. (N.S.) 860 ; 56 L. J. Ch. 178; 35 W. E. 235) 287 
 
 Edgington v. Fitzmaurice (29 Ch. Div. 459 ; 53 L. T. (N.S.) 369 ; 55 L. J. 
 
 Ch. 650 ; 33 W. E. 911) 205 
 
 Edmonds v. Bobinson (29 Ch. D 170 ; 52 L. T. (N.S.) 339 ; 54 L. J. Ch. 
 
 586 ; 33 W. B. 471) 81, 83 
 
 Edwards v. Slater (Tudor B. P. Cas: 368 (3rd ed. ) ; Hardr. 410) . . . . 229 
 Edwards and Jones (1 My. & Cr. 226 ; 5 L. J. (N.S.) Ch. 194) . . . 124. 
 Egerton v. Earl Brownlow (4 H. L. C. 1 ; 18 Jur. 71 ; 23 L. J. Ch. 348) 20 
 Egremont Burial Board v. Egremont Iron Ore Co. (14 Ch. D. 158 ; 42 L. 
 
 T. (N.S.) 179; 49 L. J. Ch. 623; 28 W. B. 594) 291 
 
 Elderton, In re (25 Ch. D. 220; 50 L. T. (N.S.) 26; 53 L. J. Ch. 258; 32 
 
 W. E. 227) 277 
 
 Elias v. Snowden Slate Quarries Co. (4 App. Cas. 454; 41 L. T. (N.S.) 289; 
 
 48 L. J. Ch. 811; 28 W. E. 54) 38 
 
 Elliott v. Dearsley (16 Ch. Div. 322; 44 L. T. (N.S.) 198; 29 W. E. 494) . 216 
 Ellis's Trusts, In re (L. E. 17 Eq. 409; 22 W. E. 448; 43 L. J. (Ch.) 444) 232 
 Emmerson v. Ind, Coope & Co. (33 Ch. Div. 323; 55 L. T. (N.S.) 422; 55 
 
 L. J. Ch. 903; 34 W. E. 778) 289 
 
 Eno v. Tatham (4 Giff. 181; 3 D. J. & S. 443; 7 L. T. (N.S.) 664; 8 L. T. 
 
 (N.S.) 127; 32 L. J. Ch. 159, 311; 11 W. E. 277, 475; 9 Jur. (N.S.) 225, 
 
 481 215 
 
 Erskine v. Garthshore (18 Ves. 114) 289 
 
 Esdaile, Ee Esdaile v. Esdaile (54 L. T. 637) 154 
 
 v. Visser (13 Ch. Div. 421; 41 L. T. (N.S.) 745; 28 W. B. 281) . . 7 
 Espin v. Pemberton (3 De G. & J. 547; 32 L. T. 345; 28 L. J. Ch. 311; 7 
 
 W. E. 221; 5 Jur. (N.S.) 157) 239 
 
 Evans v. Bagshaw (L. E. 5 Ch. 340; 39 L. J. Ch. 145; 18 W. E. 657) . . 47 
 
 v. Bear (10 Ch. 76; 31 L. T. (N.S.) 625; 23 W. E. 67) 7 
 
 v. Staniar (34 Ch. D 470; 56 L. T. (N.S.) 87; 35 W. E. 286) . Ill, 197 
 Ex parte. Watkins, In re (13 Ch. Div. 252: 41 L. T. (N.S.) 565; 
 
 49 L. J. Bankr. 7; 28W. B. 127) 280,282 
 
 European Life Assurance Society, Ee (L. E. 9 Eq. 122; 39 L. J. Ch. 324; 
 
 18 W. E. 9; 22 L. J. (N.S.) 785) 269 
 
 Ewinga. Orr-Ewlng (9 App. Cas. 34; 10 App. Cas. 453; 50 L. T. (N.S.) 
 
 401; 53 L. T. (N.S.) 826; 53 L. J. Ch. 435; 32 W. E. 573) .... 234, 237 
 
 Eykyn's Trusts, In re (6 Ch. D. 115; 37 L. T. (N.S.) 261) 252 
 
 Eyre v. Eyre (49 L. T. 259) 229 
 
 F. 
 
 Faithfull v. Ewen (7 Ch. Div. 495; 37 L. T. (N.S.) 805; 47 L. J. Ch. 457; 
 
 26 W. E. 270) 195 
 
 Falcke v. Scottish Imperial Insurance Co. (34 Ch. Div. 234; 56 L. T. (N.S.) 
 
 220; 35 W. B. 143) . 264 
 
 Farnell's Settled Estates (33 Ch. D. 599; 35 W. E. 250) 153 
 
 Farquharson v. Floyer (3 Ch. D. 109; 35 L. T. (N.S.) 355; 45 L. J. Ch. 
 
 750) 244 
 
20 TABLE OF CASES. 
 
 [The paging refers to the [«] pages.] 
 
 PAGE 
 
 Farr v. Sheriffe (4 Ha. 528) 120 
 
 Farrer v. Lacy Hartland & Co. (31 Ch. D. 421; 28 Ch. Div. 482: 54 L. J. 
 
 Ch. 808; 52 L. T. (K.S.) 38; 33 W. E. 265) 160, 161 
 
 Fearnside v. Flint (22 Ch. D. 579; 48 L. T. (N.S.) 154; 52 L. J. Ch. 479; 
 
 31 W. K. 318) 127, 128, 129 
 
 Fergusson v. Gibson (L. E. 14 Eq. 379; 41 L. J. Ch. 640) 260 
 
 Field v. White. Eownson, In re (29 Ch. Div. 358; 52 L. T. (N.S.) 825; 
 
 54 L. J. Ch. 950; 33 W. E. 604) 156 
 
 Finch, In re. Finch i>. Finch (23 Ch. D. 267) 323 
 
 v. Finch (15 Ves. 43) 251 
 
 o. Hatterslev (3 Euss. 345, n.) 244 
 
 Finnis to Forbes (24 Ch. D. 587; 48 L. T. (N.S.) 813; 53 L. J. Ch. 140; 32 
 
 W. K. 55) 93 
 
 Fisher v. Owen (8 Ch. Div. 645; 38 L. T. (N.S.) 577; 47 L. J. Ch. 681; 26 
 
 W. E. 581) 301 
 
 Flavell, In re. Murray v. Flavell (25 Ch. Div. 89; 49 L. T. 690; 32 W. E. 
 
 102; 53 L. J. (Ch.) 185) 76 
 
 Fletcher v. Ashburner (1 Bro. C. C.) 198 
 
 ti. Bealey (28 Ch. D. 688) 330 
 
 Flint, Ee. Coppock v. Vaughan (W. N. 1885, p. 163) 330 
 
 Flower v. Lloyd (6 Ch. Div. 297; 37 L. T. (N.S.) 419; 46 L. J. Ch. 838; 
 
 25 W. E. 793) -. 313 
 
 Foakes v. Webb (28 Ch. D. 287; 51 L. T. (N.S.) 624; 54 L. J. Ch. 262; 33 
 
 W. E. 249) 286 
 
 Forbes v. Jackson (19 Ch. D. 615; 51 L. J. Ch. 690; 30 W. E. 652) . . 260 
 
 v. Moffatt (18 Ves. 384; Tudor E. P. C. 943) 53 
 
 Foster v. Foster (1 Ch. D. 588; 45 L. J. Ch. 301; 24 W. E. 185) 199 
 
 Foster and Lister, In re (6 Ch. D. 87; 36 L. T. (N.S.) 582; 46 L. J. Ch. 
 
 480; 25 W. E. 553 • • ' 76 
 
 Fourth City Mutual Bdg. Socy. v. Williams (14 Ch. D. 140; 49 L. J. (Ch.) 
 
 245; 42 L. T. (N.S.) 615; 28 W. E. 572) • 170 
 
 Fowler v. Barstow (20 Ch. Div. 240; 45 L. T. (N.S.) 603; 51 L. J. Ch. 
 
 103; 30 W. E. 112) 306 
 
 In re. Fowler v. Odell (16 Ch. D. 723; 44 L. T. (N.S.) 99; 29 W. 
 
 E. 891) 283 
 
 France v. Clark (26 Ch. Div. 257; 32 W. E. 466; 53 L. J. Ch. 585; 50 L. 
 
 ■T. 1) 166 
 
 Fray v. Vowles, (1 Ell. & Ell. 839) 210 
 
 Freeman v. Cox (8 Ch. D. 148; 47 L. J. Ch. 560; 26 W. E. 689) 296 
 
 v. Pope (L. E. 5 Ch. 538; 23 L. T. (N.S.) 208; 39 L. J. Ch. 689; 
 
 18 W. E. 906) 218 
 
 French v. Chichester (2 Vern. 568; 3 Bro. P. C. 16) . . 242 
 
 Friswell v. King (15 Sm. 191) 196 
 
 Frith v. Cartland (2 H. & M. 417; 12 L. T. (N.S.) 175; 34 L. J. Ch. 301; 
 
 13 W. R. 493; HJur. (N.S.) 238) 3 
 
 Fry v. Tapson (28 Ch. D. 268; 33 W. R. 113; 54 L. J. Ch. 224; 51 L. f. 
 
 326) 105 
 
 Fuggle v. Bland (11 Q. B. D. 711) . 283 
 
 G. 
 
 Gadd, In re. Eastwood v. Clark (23 Ch. Div. 134; 48 L. T. (N.S.) 395- 
 
 52 L. J. Ch. 396; 31 W. E. 417) 113 
 
 Gainsford u. Dunn (L. E. 17 Eq. 405; 43 L. J. Ch. 403; 22 W. E. 499; 30 
 
 ' L. T. 283) . . . . 229 
 
 Galland, In re (31 Ch. D. 296) 196 
 
 Gardner v. L. C. D. Ey. Co. (L. E. 2 Ch. 201; 15 L. T. (N.S.) 494, 552, 
 644; 36 L. J. Ch. 323; 15 W. E. 325) 30 
 
TABLE OF CASES. 21 
 
 [The paging refers to the [•] pages.] 
 
 PAQB 
 
 Garnett, In re. Gandy v. Maculay (31 Ch. D. 1) 70, 146 
 
 Orme and Hargrove's Contract, In re (25 Ch. D. 595) . ... 156 
 Garrard v. Lord Lauderdale (3 Sim. 1 affd. 2 Euss. & My. 451) . . 16, 17, 18 
 
 Garrett v. Wilkinson (2 De G. & Sm. 244) 252 
 
 Gaskin v. Balls (13 Ch. Div. 324; 28 W. E. 552) . .324 
 
 Gee v. Bell (35 Ch. D. 160) 283 
 
 General Credit Discount Co. v. Glegg (22 Ch. D. 549; 48 L. T. (N.S.) 182; 
 
 52 L. J. Ch. 297;. 31 W. E. 421) 166 
 
 General Provident Assurance Company, In re (L. E. 14 Eq. 507; 27 L. T. 
 
 (N.S.) 433; 41 L. J. Ch. 823; 20 W. E. 939) 55 
 
 General South American Company, In re (2 Ch. Div. 337; 34 L. T. (N.S.) 
 
 706; 24 W. E. 891) 56 
 
 Gibbins v. Eyden (L. E. 7 Eq. 371; 20 L. T. (N.S.) 516; 38 L. J. Ch. 377; 
 
 17 W. E. 481) 218 
 
 Gilbert v. Endean (9 Ch. Div. 259; 39 L. T. (N.S.) 404; 27 W. E. 252) . 210 
 v. Gonard (33 W. E. 302; 54 L. J. Ch. 439; 52 L. T. (N.S.) 54 
 
 (nom. Gilbert v. Gouard)) 6 
 
 v. Smith (2 Ch. D. 686; 35 L. T. (N.S.) 43; 45 L. J. Ch. 514; 24 W. 
 
 E. 568) 297 
 
 Gill v. Downing (L. E. 17 Eq. 316; 30 L. T. (N.S.) 157; 22 W. E. 360) . 263 
 Ginesi v. Cooper (14 Ch. D. 596; 42 L. T. (N.S.) 751; 49 L. J. Ch. 601) 88, 89 
 Gisborne v. Gisborne (2 App. Cas. 300; 36 L. T. (N.S.) 564; 46 L. J. Ch. 
 
 556; 25 W. E. 516) 114, 115, 116 
 
 Glanvill, In re. Ellis v. Jackson (31 Ch. Div. 532; 34 W. E. 118 & 309; 
 
 55 L. J. 36 & 325; 53 L. T. 752 & 54 L. T. 411) 233 
 
 Glenn v. Gregg (21 Ch. Div. 513; 46 L. T. (N.S.) 375; 51 L. J. Ch. 783; 30 
 
 W. E. 633) ..... 33 
 
 Glegg v. Eees (L. E. 7 Ch! 71; 25 L.'t. (NS.) 612; 41 L. J. Ch.'243;' 20 
 
 W. E. 193) , 18 
 
 Godfrey, In re. Godfrey v. Faulkner (23 Ch. D. 483; 48 L. T. (N.S.) 853; 
 
 52 L. J. Ch. 820; 32 W. E. 23) 105 
 
 Goldsworthy, In re (2 Q. B. D. 75; 46 L. J. Q. B. 187) 278 
 
 Gooch v. London Banking Association (32 Ch. D. 41) 328 
 
 Goodwin v. Gosnell (2 Coll. (Ch.) 457; 7 L. T. 26; 10 Jur. 259) 109 
 
 Gordon, In re (6 Ch. D. 531) 201 
 
 v. Gordon (3 Swanst. 400) 210 
 
 Gottlieb v. Cranch (4 De M. & G. 440) 268 
 
 Gould, Ex parte. Walker, In re (13 Q. B. D. 454; 51 L. T. (N.S.) 368 . 44 
 Grange v. White (18 Ch. D. 612; 45 L. T. (N.S.) 128; 50 L. J. Ch. 620; 29 
 
 W. E. 713) 50 
 
 Grant v. Holland (3 C. P. D. 180; 26 W. E. 742; 47 L. J. C. P. 518) . . 312 
 
 Graves v. Forman (3 Ves. 67) 273 
 
 Gray v. Siggers (15 Ch. D. 74; 29 W. E. 13; 49 L. J. Ch. 819) 213 
 
 Great Australian Gold Mining Co. v. Martin, The (5 Ch. D. 1; 35 L. T. 
 
 (N.S.) 874; 46 L. J. Ch. 289; 25 W. E. 246) 306 
 
 Berlin Steamboat Co. (26 Ch. Div. 616; 51 L. T. (N.S.) 445; 54 L. J. 
 
 Ch. 68) : 5 
 
 Britain Mutual Life Assurance Society (20 Ch. D. 351; 51 L. J. Ch. 
 
 10, 506; 29 W. E. 202; 43 L. T. (N.S.) 684) 269 
 
 Green v. Bennett (32 W. E. 848; 50 L. T. (N.S.) 706; 54 L. J. Ch. 85) . 295 
 
 v. Britten (1 De G. J. & S. 649) 212 
 
 v. Coleby (1 Ch. D. 693; 24 W. E. 246; 45 L. J. Ch. 303) .... 322. 
 v. Paterson (32 Ch. Div. 95; 54 L. T. (N.S.) 738; 56 L. J. Ch. 181 ; 34 
 
 W. E. 724) 11 
 
 v. Sevin (13 Ch. D. 589; 41 L. T. (N.S.) 724; 49 L. J. Ch. 166) . . 247 
 
 Greenough v. Gaskell (1 My. & K. 98) 286 
 
 v. Littler (15 Ch. D. 93; 42 L. T. (N.S.) 144; 28 W. E 318) . 161 
 ^Greenwood v. Hornsey (33 Ch. D. 471) 329 
 
22 TABLE OF CASES. 
 
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 Greer v. Young ,'24 Ch. Div. 545) 193 
 
 Grettorm. Haward (1 Swan. 359) 271 
 
 Grey v. Grey (2 Sw. 594) 252 
 
 u. Jenkins (26 Beav. 351) 151 
 
 Griffith's Will, In re (49 L. T. (N.S.) 161) 155 
 
 Griffiths, In re. Griffiths *. Lewis (20 Ch D. 465) 323 
 
 Griffith v. Blake (27 Ch. D. 474) .... 327 
 
 Groves v. Groves (3 Y. & J. 163) 249 
 
 Grundy v. Grice (Seton, 1036) 161 
 
 Guthrie v. Walrond (22 Ch. D. 573) . ... 273 
 
 H. 
 
 H. f s Estate In re. H. v. H. (Ch. D. 276; 24 W. R. 317; 45 L. J. Ch. 749) 282 
 
 Hackett v. Baiss (L. E. 20 Eq. 497) 329 
 
 Hale and Clark, In re (34 W. R. 624) 155 
 
 Halfhideu Robinson (L. R. 9 Ch. 373; 30 L. T. (N.S.) 216; 43 L. J. Ch. 
 
 398; 22 W. R. 448) 47 
 
 Hall, In re (51 L. J. (N.S.) 901; 33 W. R. 508; 54 L. J. Ch. 527) .... 113 
 In re (2 Jur. (N.S.) 633; 27 L. T. 230; 4 W. R. 686) .... 109 
 
 In re (10 W. R. 37; 5 L. T. (N.S.) 395 264 
 
 Hall-Dare v. Hall-Dare (31 Ch. Div. 251) 70 
 
 Hallett's Estate, In re. Knatchbull v. Hallett (13 Ch. Div. 696; 42 L. T. 
 
 (N.S.) 421; 49 L. J. Ch. 415; 28 W. R. 732) 1,4,6,7 
 
 Hall?). Hall (L. R. 8 Ch. 430; 28 L. T. (N.S.) 383; 42 L. J. Ch. 444; 21 
 
 W. R. 373) 10 
 
 v. Trumon, Hanbury & Co (29 Ch. Div. 307; 52 L. T. (N.S.) 586; 
 
 54 L. J. Ch. 717) 290 
 
 Halroyde v. Garnett (20 Ch. D. 532; 46 L. T. (N.S.) 801; 51 L. J. Ch. 663; 
 
 30 W. R. 604) 7 
 
 Halsey v. Brotherhood (19 Ch. D. 386) 328 
 
 Hameri;. Giles (11 Ch. D. 942; 41 L. T. (N.S.) 270; 48 L. J. Ch. 508; 27 
 
 W. R. 834) 85, 196 
 
 Hamilton v. Royse (2 Sch. & L.) 315 241 
 
 Hampden v. Wallis (27 Ch. D. 251; 51 L. T. (N.S.) 357; 54 L. J. Ch. 1175; 
 
 32 W. R. 977) 297 
 
 Hancock v. Guerin (4 Ex D. 3) 291 
 
 Harding v. Harding (L. R. 13 Eq. 493; 26 L. T. (N.S.) 656; 41 L. J. Ch. 
 
 523) .216 
 
 Hargreaves v. Rothwell (1 Keen, 160) 240 
 
 *-. Thompson's Contract (32 Ch. Div. 454; 56 L. J. Ch. 199; 34 
 
 W. R. 708) 91 
 
 Harloch v. Ashberry (19 Ch. Div. 539; 46 L. T. (N.S.) 356; 51 L. J. Ch. 
 
 394* 30 W. R. 327) . 128 
 
 Harloe v. Harloe (L. R. 20 Eq. 471; 33 L. T. (N.S.) 247; 44l! J. Ch. 512; 
 
 23 W. R. 789) 244 
 
 Harman v. Johnson (2 E. & B. 61; 21 L. T. 89; 22 L. J. Q. B. 297; 1 W. 
 
 R. 326 (nom. Harmer v. Johnson) 78 
 
 Harphaniu. Shacklock (19 Ch. Div. 207; 45 L. T. (N.S.) 569; 30 W. R. 
 
 49) . ... 183 
 
 Harris' Settled Estates, In re (28 Ch. D. 171) 145 
 
 v. Jenkins (22 Ch. D. 481; 47 L. T. (N.S.) 570; 52 L. J. Ch. 437; 
 
 31 W. R. 137) 481 
 
 v. De Pinna (33 Ch. D. 238) 329 
 
 v. Jenkins (22 Ch. Div. 481) 303 
 
 Harrison, In re. Harrison v. Harrison (28 Ch. Div. 220; 52 L. T. (N.S.) 
 
 204; 54 L. J. Ch. 617; 33 W. R. 240) 37 
 
TABLE OF CASES. 23 
 
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 Harrison, In re. Latimer v. Harrison (32 Ch. D. 395; 55 L. T. (N.S.) 150; 
 
 55 L. J. Ch. 687; 34 W. E. 736) 158 
 
 v. Good (L. R. 11 Eq. 338; 24 L. T. (N.S.) 263; 40 L. J. Ch. 294; 
 
 19 W. E. 346) ... . ... 142 
 
 Harrop, In re (3 Drew 726) 201 
 
 Harrop's Trust (24 Ch. D. 717) 156 
 
 Harter v. Colman (19 Ch. D. 630; 46 L. T. (N.S.) 154; 51 L. J. Ch. 481; 30 
 
 W. E. 484) 179 
 
 Hartland v. Murrell (27 Beav. 204) 244 
 
 Harvey, In re. Wright v. Woods (26 Ch. D. 179) 323 
 
 v. Croydon Union Sanitary Authority (26 Ch. Div. 249 ; 50 L. T. 
 
 (N.S.) 291; 53 L. J. Ch. 707; 32 W. E. 389) 210 
 
 Harvey's Estate, In re. Godfrey v. Harben (13 Ch. D. 216) . ... 147 
 
 Hatton v. Haywood (L. E. 9 Ch. 229; 30 L. T. (N.S.) 279; 43 L. J. Ch. 
 
 372; 22 W. E. 356) 281 
 
 Hawkins, Ex parte (13 Sim. 569) 201 
 
 Hawksworth, In re (W. N. 1887, p. 113) 148 
 
 Hawthorne, In re. Graham v. Massey (23 Ch. D. 743; 48 L. T. (N.S.) 
 
 701; 52 L. J. Ch. D. 750; 32 W. E. 147) . . . 236 
 
 Haycock's Policy, In re (1 Ch. D. 611; 45 L. J. Ch. 247; 24 W. E. 291) . 264 
 
 Hayden v. Kirkpatrick (34 Beav. 645) 53 
 
 Hayle's Settled Estates, In re (29 Ch. Div. 78; 52 L. T. (N.S.) 947; 54 L. 
 
 J. Ch. 628; 33 W. E. 759) 150, 155 
 
 Haynesv Haynes (1 Dr. & Sm. 426) 201 
 
 Hayward v. East London Waterworks Co. (28 Ch. D. 138) 330 
 
 & Co. v. Hayward & Sons (34 Ch. D. 198) 328 
 
 Haywood v. Brunswick Building Society (8 Q. B. Div. 403; 45 L. T. (N.S.) 
 
 699; 51 L. Q. B. 73; 30 W. E. 299) 137, 138, 141 
 
 Heath v. Pugh (7 App. Cas. 235; 46 L. T. (N.S.) 321; 51 L. J. Q. B. 367; 
 
 30 W. E. 553) 128 
 
 Hedgely, In re. Small v. Hedgely (34 Ch. D. 379; 56 L. J. Ch. 360; 35 W. 
 
 E. 472) 232 
 
 Hedgman, In re. Morley v. Croxon (8 Ch. D. 156; 26 W. E. 674 (nom. 
 
 Morley v. Coxon) 32 
 
 Hedley v. Bates (13 Ch. D. 498; 42 L. T. (N.S.) 41; 49 L. J. Ch. 170; 28 
 
 W. E. 365) 327 
 
 Heinrich v. Sutton (L. E. 6 Ch. 865 j 196 
 
 Hanvell v. Whitaker (3 Buss. 343; 5 L. J. Ch. 158 (nom. Henvill v. Whit- 
 
 aker) . ... 244 
 
 Henderson*. Rothschild (35 W. K. 485; 56 L. T. (N.S.) 98) 18 
 
 Hendry v. Turner (32 Ch. D. 355; 54 L. T. (N.S.) 292; 55 L. J. Ch. 562; 
 
 34 W. E. 513) 85 
 
 Henry v. Armstrong (18 Ch. D. 668; 44 L. T. (N.S.) 918: 30 W. E. 472) . 10 
 Hensman v. Fryer (L. E. 3 Ch. 420; 17 L. T. (N.S.) 394-, 37 L. J. Ch. 97; 
 
 16 W. E. 162) 244 
 
 Henty v. Wrey (21 Ch. D. 332; 47 L. T. (N.S.) 231; 30 W. E. 850; 53 L. 
 
 J. (N.S.) 667) 225 
 
 Hercules Insurance Co., In re (L. E. 11 Eq. 321; 40 L. J. Ch. 379) ... 64 
 
 Hermann Loog v. Bean (26 Ch. D. 306) . . 328 
 
 Hervey v. Smith (22 Beav. 299; 1 K. & J. 389) 241 
 
 Hetherington's Trusts, In re (34 Ch. D. 211; 55 L. T. (N.S.) 8U6; 56 L. J. 
 
 Ch. 174; 35 W. E. 285) 12 
 
 Hetherington i\ Groom (13 Q. B. D. 789) 174 
 
 Hewett v. Loosemore (9 Ha. 449; 18 L. T. 133; 15 Jur. 1097; 21 L. J. 
 
 Ch. 69) 169 
 
 Hewison v. Negus (16 Beav. 594; 29 L. T. 53; 203 (app.); 17 Jur. 445, 567 
 
 (app.); 1 W. E. 262; 22 L. J. Ch. 655) 11 
 
 Hickson v. Darlow (23 Ch. D. 690) 329 
 
24 TABLE OF CASES. 
 
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 PAGE 
 
 Hill v. Chapman (2 Bro. C. C. 612) 125 
 
 v. Hart Davies (21 Ch. D. 798) 328 
 
 Hindson v. "Weatherill (5 D. M. & G. 301) 192 
 
 Hipgrave v. Case (28 Ch. Div. 356; 52 L. T. (N.S.) 242; 54 L. J. Ch. 399) 303 
 
 Hipwell v. Knight (1 Y. & C. Ex. 401) 246 
 
 Hitchman v. Stewart (3 Drew. 271) 260 
 
 Hoare v. Stephens (32 Ch. D. 194; 55 L. J. Ch. 513; 54 L. T.. 230; 34 W. 
 
 E. 410) ' 284 
 
 Hodges v. Hodges (20 Ch. D. 749; 51 L. J. (Ch.) 549; 46 L. T. 366; 30 W. 
 
 R. 483) . .147 
 
 Hodgson, In re. Beckett v. Eamsdale (31 Ch. D. 177) 323 
 
 Holland, Ex parte. Heneage, In re (L. E. 9 Ch. 310; 22 W. E. 223; 43 L. 
 
 J. Bk. 85; 30 L. T. (N.S.) 103) .146 
 
 v. Worley (26 Ch. D. 578) 329 
 
 Holme v. Hammond (L. E. 7 Ex. 218; 20 W. E. 747; 41 L. T. (Ex.) 157) 77 
 
 Holmes v. Penny (3 K. & J. 90) 219 
 
 Holt, In re (16 Ch. D. 115; 29 W. E. 341) .... .... 277 
 
 Homer v. Ashford (3 Bing. 322; 4 L. J. C. P. 62) 89 
 
 Honywood v. Honywood (L. E. 18 Eg.. 306; 30 L. T. (N.S.) 671; 43 L. J. 
 
 Ch. 652; 22 W. E. 749) 36 
 
 Hopkins, In re. Dowd v. Hawtin (19 Ch. Div. 61; 30 W. 601) 282 
 
 Hopton v. Dryden (Pre. Ch. 179; 2 Eq. Cas. Abr. 450) 157 
 
 Horton ». Bott (2 H. & N. 249; 29 L. T. 228; 3 Jur. (N.S) 568 (nom. Hor- 
 
 ton v. Bock); 5 W. E. 792; (26 L. J. Ex. 267) ) . 288 
 
 Hotchkin's Settled Estates, In re (35 Ch. Div. 41) , . ... .154 
 
 Houghton Estate, In re (30 Ch. D. 102) 154 
 
 Household Fire Co. is. Grant (4 Ex. Div. 216; 41 L. T. (N.S.) 298; 48 L. 
 
 J. Exch. 577; 27 W. E. 858) 98 
 
 Howe v. Earl of Dartmouth (7 Ves. 137a) 211 
 
 Howe v. Smith (27 Ch. Div. 89; 50 L. T. (N.S.-) 573; 53 L. J. Ch. 1055: 32 
 
 "W. E. 802) 41 
 
 Hubback, In re. International Marine Hydropathic Co. v. Hawes (29 Ch. 
 
 Div. 934; 54 L. J. Ch. 923; 52 L. T. (N.S) 908; 33 W. E. 666) .... 159 
 
 Hudson v. Temple (29 Beav. 536, 543) 246 
 
 Hughes v. Codes (27 Ch. D. 231; 51 L. T. (N.S.) 226; 53 L. J. Ch 1047; 33 
 
 W. E. 27) 129 
 
 Hughes-Hallett v. Indian Mammoth Gold Mining Co. (22 Ch. Div. 561; 
 
 52 L. J. Ch 418; 51 W. E. 285; 48 L. T, 107) 260 
 
 Hughes v. Twisden (34 "W. E. 498) 205 
 
 Hulkes, In re. Power v. Hulkes (33 Ch. D. 552) 66 
 
 Hunt v. Elwes (2 De G. F. & J. 578; 3 L. T. (N.S 736; 30 L. J. Ch. 255; 9 
 
 "W. E. 362; 7 Jur. (N.S) 200) 109 
 
 Hunter v. Atkins (3 My. & K. 113) 192 
 
 v. Myatt (28 Ch. D. 181) 161 
 
 Hurst v. Beach (5 Madd. 351) 125 
 
 Hussey v. Horne.Payne (4 App. Cas. 311; 41 L. T. (N.S.) 1; 48 L. J. Ch. 
 
 846; 27 "W. E. 585) 96 
 
 Hutchinson, In re. Hutchinson t. Norwood (34 W. R. 637; 54 L. T. (N.S.) 
 
 242) 196 
 
 and Tenant, In re (8 Ch. D. 540; 39 L. T. (N.S.) 86; 26 W. E. 
 
 904) 15 
 
 Hyettu. Mekin (25 Ch. D. 735; 50 L. T. (N.S.) 54; 53 L. J. Ch. 241; 32 
 
 W. E. 5131 199 
 
 Illidge, In re. Davidson v. Illidge (27 Ch. Div. 478; 51 L. T. (N.S.) 523; 
 53 L. J. Ch. 991; 33 W. E. 18) 159 
 
TABLE OF CASES. 25 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 Incorporated Society v. Richards (1 D. & War. 258) 31 
 
 Instone v. Elmslie (34 W. R. 592; 54 L. T. (N.S) 730) 162 
 
 International Pulp and Paper Co., In re. Knowles' Mortgage (6 Ch. D. 
 556; 37 L. T (N.S.) 351; 46 L. J. Ch. 625; 25 W. R. 822) 54, 56 
 
 James, Ex parte (L. R. 9 Ch. 609; 30 L. T. (N.S.) 773; 43 L. J. Bank. 
 
 107; 22 W. R. 937) 67 
 
 v. Couchman (29 Ch. D. 212; 52 L. T. (N.S.) 344; 54 L. J. Ch. 838; 
 
 33 W. R. 452) 11 
 
 v. James (L. R. 16 Eq. 153; 21 W. R. 522; 42 L. J. Ch. 386) . . 177 
 James v. Lickfield (L. R. 9 Eq. 51; 39 L. J. Ch. 248; 18 W. R. 158; 21 L. 
 
 T. 521) 240 
 
 Jenner-Fust v. Needham (31 Ch. D. 500; 32 Ch. D. 582; 55 L. J. Ch. 407, 
 
 629; 54 L. T. 420; 55 L. T. 37; 34 W. R. 409, 709) 284 
 
 Jennings v. Hammond (9 Q. B. D. 225; 31 W. R. 40; 51 L. J. Q. B. 493) 63, 
 
 178, 179 
 v. Jordan (6 App. Cas. 698; 45 L. T. (N.S.) 593; 51 L. J. Ch. 
 
 129; 30 W. R. 369) . . . . 171 
 
 Jenny v. Preston (13 Sim. 3561 199 
 
 Jervis t>. Berridge (L. R. 8 Ch. 351; 28 L. T. (N.S.) 481; 42 L. J. Ch. 518; 
 
 21 W. R. 395) 97 
 
 Johns v. James (8 Ch. Div. 744; 39 L. T. (N.S.) 54; 47 L. J. Ch. 853; 
 
 (nom. Jones v. James) 26 W. R. 821)- 16 
 
 Johnson, In re. Golden v. Gillam (20 Ch. D. 389; 46 L. T. (N.S.) 222; 51 
 
 L. J. Ch. 154, 503) .... 221 
 
 v. Lord Harrowby (Johns. 425) 225 
 
 v. Lord Harrowby (Johns. 425, affd. 6 Jur. (N.S.) 153; 33 L. T. 344; 
 (Johnstone v. Earl of H.) 7W. R.610 (nom Johnstone t-.LordH.;) 
 
 29 L. J. Ch. 145- (nom. Johnstone v. Earl of H.) 225 
 
 Johnston, In re. Cockerell v. Earl of Essex (26 Ch. D. 538; 52 L. T. 
 
 (N.S.) 44; 53 L. J. Ch. 645; 32 W. R. 634) 22 
 
 Johnstone v. Cox (19 Ch. Div. 17; 45 L. T. (N.S.) 657; 50 L. J. Ch. 216 
 
 (Bacon V. C); 30 W. R. 114) 183 
 
 Jones, In re (26 Ch. Div. 736; 50 L. T. (N.S.) 466; 53 L. J. Ch. 807; 32 
 
 "W. R. 735) 149, 150, 155 
 
 Ex parte. Grissell, In re (12 Ch. Div. 484; 48 L. J. Bk. 109; 40 L. 
 
 T. 790; 28 W. R. 287) .147 
 
 In re. Calver v. Laxton (31 Ch. D. 440; 53 L. T. (N.S.I 855; 55 
 
 L. J. Ch. 350; 34 W. R. 249) 157 
 
 v. Evans (2 Ch. D. 420; 24 W. R. 778; 45 L. J. Ch. 751) . 159 
 
 v. Frost (L. R. 7 Ch. 773) 196 
 
 v. Harris (9 Ves. 486) 231 
 
 B.Jones (14 Ch. Div. 593; 43 L. T. (N.S.) 76; 29 W. R. 65) ... 312 
 v. Smith (1 Ha. 43; 1 Phill. 244; 1 L. T. 166; 11 L. J. Ch. 83; 12 L. 
 
 J. Ch. 381; 6 Jnr. 8; 7 Jur. 431) 239 
 
 v. Monte Video Gas Co. (5 Q. B. Div. 556; 42 L. T. (N.S.) 639; 49 
 
 L. J. Q. B. 627; 28 W. R. 758) . . .... • . 291 
 
 v. Selby (Prec. Ch. 300) 125 
 
 Jordan, In re. Kino v. Picard (34 W. R. 270; 54 L. T. (N.S.) 127; 55 L. 
 J. Ch. 330) 233 
 
 K. 
 
 Kaye, In re (L. R. 1 Ch. 387; 14 L. T. (N.S.) 388; 12 Jur. (N.S.) 350; 14 
 
 W. R. 597) 277 
 
 Keates v. Lyon (4 Ch. 218; 20 L. T. (N.S.) 255; 38 L. J. Ch. 357; 17 W. R. 338) 139 
 
26 TABLE OF CASES. 
 
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 PAGE 
 
 Kekewich v. Manning (1 De G. M. & G. 176; 18 L. T. 263; 16 Jur. 625; 21 
 
 L. J. Ch. 577) 10 
 
 Kelland v. Fulford (6 Ch. D. 491) 201 
 
 Kemble v. Farren (6 Bing. 141; 7 L. J. C. P. 258) 40 
 
 Kensit v. Great Eastern Railway Co. (27 Ch. D. 122) 330 
 
 Keppell v. Bailev (2 M. & K. 517) 139 
 
 Kewney ».' Attrill (34 Ch. D. 345; 55 L. T. (N.S.) 800; 35 W. R. 191; . . 85 
 Kilford v. Blaney (31 Ch. Div. 56; 53 L. T. (N.S.) 17; 55 L. J. Ch. 185; 34 
 
 "W. R. 109) 244 
 
 King, In re (14 Ch. D. 179; 49 L. J. Ch. 73; 28 W. R. 344) 10 
 
 v. Hamlet (2 My. & K. 456) . . 131, 132 
 
 Kinsman v. Rouse (17 Ch. D. 104; 44 L. T. (N.S.) 597; 50 L. J. Ch. 486; 
 
 29 W. R. 627) 128 
 
 Kirkwood v. Thompson (2 H. & M. 392, aflfd. 2 D. J. S. 613; 12 L. T. 
 
 (N.S.) 446, 811; 11 Jur. [N.S.) 385; 13 W. R. 495, 1052; 34 L. J. Ch. 
 
 305, 501) 173 
 
 Kirwan's Trusts, In re (25 Ch. D. 373; 49 L. T. (N.S.) 292; 52 L. J. Ch. 
 
 952; 32 W. R. 581) 228 
 
 Kloebe, In re. Kannereuther v. Geiselbrecht (28 Ch. D. 175) .... 323 
 
 Knatehbull's Settled Estate (29 Ch. Div. 588) 154 
 
 Knox v. Turner (L. R. 5 Ch. 515; 27 W. R. 642; 40 L. J. 303) . . . . 268 
 Kronheim v. Johnson (7 Ch. D. 60; 37 L. T. (N.S.) 751; 47 L. J. Ch. 132; 
 
 26 W. R. 142) 12 
 
 Kurtz v. Spence (33 Ch. D. 579) 330 
 
 L. 
 
 Labouehere v. Dawson (L. R. 13 Eq. 322; 25 L. T. (N.S.) 894; 41 L. J. Ch. 
 
 427; 20 W. R. 309 87, 88, 90 
 
 La Grange v. MeAndrew 14 Q. B. D. 210; 48 L. J. Q. B. 315) 312 
 
 Laird v. Briggs (16 Ch. Div. 663; 44 L. T. (N.S.) 361; 50 L. J. Ch. 260; 29 
 
 "W. R. 197) . . 314 
 
 Lamas v. Bayly (2 Vern. 627; Eq. Ca. Ab. 22) 101 
 
 Lambe v. Eames (L. R. 6 Ch. 597; 25 L. T. (N.S.) 175; 40 L. J. Ch. 447; 
 
 19 W. R. 659) . . 14-15 
 
 Laming v. Gee (10 Ch. D. 715) 323 
 
 Laudfield's Settled Laud, Re (30 "W. R. 377) 234 
 
 Langley, Ex parte. In re Bishop (13 Ch. Div. 110) 330 
 
 Lassence v. Tierney (1 Mac. & G. 551; 15 L. T. 557; 14 Jur. 182; 2 Hall 
 
 &Tw. 115) 102 
 
 Law v. Garrett (8 Ch. Div. 26; 37 L. T. (N.S.) 602; 26 W. R. 426) . 83 
 
 v. Philby (35 W. R. 401; 56 L. T. (N.S.) 230) .... . . 162 
 
 Lawes, In re (20 Ch. Div. 81; 30 W. R. 33; 45 L. T. 480) 257 
 
 Lawrence v. Campbell (1 Drew. 485 ; 33 L. T. 355 ; 5 Jur. (N.S.) 1071; 28 
 
 L. J. Ch. 780; 7 W. R. 336) 287 
 
 Lea, In re. Lea v. Cooke (34 Ch. D. 528 ; 56 L. T. (N.S.) 482 : 35 W. R. 
 
 572) '. .28 
 
 v. Hinton (5 D. M. & G. 823) 268 
 
 Lee v. Nuttall (12 Ch. Div. 61; 41 L. T. (N.S.) 4; 48 L. J. Ch. 616; 27 "W. 
 
 R. 805) 158 
 
 Lees v. Fisher. (22 Ch. Div. 283) .... 162 
 
 Leggott v. Barrett (15 Ch. Div. 306; 43 L. T. (N.S.) 631 ; 51 L. J. Ch. 90 ; 
 
 28 W. R. 962) 89 
 
 Leigh ?>. Dickeson (15 Q. B. Div. 60 ; 52 L. T. (N.S.) 790 ; 54 L. J. Q. B. 
 
 18; 33 W. R. 538) 50 
 
 Leonard v. Earl of Sussex (2 Vern. 526; 1 Eq. Ca. Abr. 12, 184) ... . 21 
 Leroux r. Brown (12 C. B. 801; 20 L. T. 68; 22 L. J. C. P. 1; 1 W. R. 22; 
 
 16 Jur. 1021) .100 
 
TABLE OP CASES. 27 
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 1'AGE 
 
 Leslie, In re. Leslie v. French (23 Ch. D. 552; 48 L. T. (N.S.) 564; 52 L. 
 
 J. Ch. 762; 31 W. E. 561) 262 
 
 Lethbridge v. Kirkman (25 L. J. Q. B. 89; 26 L. T. 122; 2 Jur. (N.S.) 372; 
 
 4 W. E. 90 (nom. Lethbridge v. Hickman) ) . . . 42 
 
 Lewis, In re. Foxwell v. Lewis (30 Ch. D. 654) 200 
 
 v. Hillman (3 H. L. C. 607; 19 L. T. 329) 190 
 
 v. Nobbs (8 Ch. D. 591; 47 L. J. Ch. 662; 26 W. E. 631) . . . 106 
 
 Lincoln v. Windsor (9 Ha. 158) 186 
 
 Little v. Kingswood Colly. Co. (20 Ch. D. 733) 330 
 
 Llewellyn, In re. Lane v. Lane (25 Ch. D. 66; 49 L. T. (N.S.) 399; 53 L. 
 
 J. Ch. 602; 32 W. E. 237) 285 
 
 Lloyd v. Attwood (3 De G. & J. 614) 219 
 
 Lloyd Generale Italiano, Ee (29 Ch. D. 219 ; 33 W. E. 728 ; 54 L. J. Ch. 
 
 748) . : 236 
 
 Lloyd's Banking Co. v. Jones (29 Ch. D. 221; 52 L. T. (N.S.) 469; 54 L. J. 
 
 Ch. 931; 33 W. E. 781) 170 
 
 Loane v. Casey (2 W. Bl. 965) 159 
 
 Locke v. White (33 Ch. Div. 308 ; 54 L. T. (N.S.) 891 ; 55 L. J. Ch. 731 ; 
 
 34 W. E. 747) 295 
 
 Locking v. Parker (27 L. T. (N.S.) 635 ; 42 L. J. Ch. 257 ; 21 W. E. 113) 173 
 Loffus v. Maw 3 Giff. 592 ; 6 L. T. (N.S.) 346 ; 32 L. J. Ch. 49 ; 10 W. E. 
 
 513; 8 Jur. (N.S.) 607) 101 
 
 Lofthouse, In re (29 Ch. Div. 921 ; 53 L. T. (N.S.) 174; 54 L. J. Ch. 1087 ; 
 
 33 W. B. 668) 115, 117 
 
 London Assurance v. Mansel (11 Ch. D. 363 ; 48 L. J. 331 ; 27 W. E. 444) 267 
 
 & Blackwall Ey. Co. v. Cross (31 Ch. D. 354) 327 
 
 Chartered Bank of Australia v. Lempriere (L. E. 4 P. C. C. 572) . 147 
 & Provincial Bank v. Bogle (7 Ch. D. 773; 47 L. J. Ch. 307; 26 W. 
 
 E. 573; 37 L. T. 780) 232 
 
 Scottish Benefit Society v. Chorley (13 Q. B. Div. 872 ; 53 L. 7 Q. 
 
 B. 551; 51 L. T. (N.S.) 100; 32 W. E. 781) 189 
 
 & South Western Ev. Co. v. Gomm (20 Ch. Div. 562 ; 46 L. T. 
 
 (N.S.) 449; 51 L. j". Ch. 430; 30 W. E. 620) 138, 141 
 
 Syndicate v. Lord (8 Ch. Div. 84; 38 L. T. (N.S.) 329; 48 L. J. Ch. 
 
 57; 26 W. E. 427) 296 
 
 Lord Dynevor v. Tennant (33 Ch. Div. 420) 53 
 
 Elphinstone v. Monkland Iron Co. (11 App. Cas. 332; 35 W. E. 17) . 41 
 
 Glenorchy v. Bosville (Cas. Tern. Talbot 3) 20 
 
 Hinchinbroke v. Seymour (1 Bro. C. C. 395) 226 
 
 Kensington v. Bouverie (7 D. M. & G. 134; 3 W. E. 469 ; 25 L. T. 
 
 169; 24 L. J. Ch. 442 : 1 Jur. (N.S.) 577 ; L. E. 8 Ch. 30) . . 163 
 
 Mahon v. Lord Stanhope (3 Madd. 523, n.) 37 
 
 Provost of Edinburgh v. Lord Advocate (L. E. 4 App. Cas. 823) . . 28 
 
 Eivers' Estate, In re (16 Ch. D. 588, n.) . . . . . . 121 
 
 Love, In re. Hill v. Spnrgeon (29 Ch. Div. 548) 120 
 
 Lowndes v. Norton (6 Ch. D. 139; 46 L. J. Ch. 613; 25 W. E. 826) . . 37 
 
 Luckie, In re. Badham v. Nixon (W. N. 1880, p. 12) . . 306 
 
 Luker v. Dennis (7 Ch. D. 227 ; 37 L. T. (N.S.) 827; 47 L. J. Ch. 174 ; 26 
 
 W- E. 167) 139 
 
 Lumley «. Wagner (1 D. M. & G. 604) • 329 
 
 Lyell v. Kennedy (8 App. Cas. 217; 48 L. T. (N.S.) 585; 52 L. J. Ch. 385; 
 
 31 W. E. 618) 288 
 
 v. Kennedy, No. 2 (9 App. Cas. 81 ; 50 L. T. (N.S.) 277 ; 53 L. J. 
 
 Ch. 449; 32 W. E. 497) ? 285 
 
 Lyon v. Tweddell (17 Ch. Div. 529; 44 L. T. (N.S.) 785; 50 L. J. Ch. 571; 
 
 29 W. E. 689) 84 
 
 Lyons v. Blenkin (Jac. 267) , 279 
 
28 TABLE OF CASES. 
 
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 M. 
 
 PAGE 
 
 Maberly, In re. Maberly v. Maberley (34 W. E. 771 ; 33 Ch. D. 455 ; 56 
 
 L. J. Ch. 54; 55 L. T. 164) 154 
 
 Macbryde v. Weekes (22 Beav. 533) 246 
 
 Macleod v. Jones (24 Ch. D. 289) .'329 
 
 Macdonald v. Irvine (8 Ch. Div. 101 ; 38 L. T. (N.S.) 155; 47 L. J. Ch. ' 
 
 494; 26 W. R. 381) 211 
 
 Macdonald v. Whitfield (8 App. Cas. 733) 260 
 
 Maddever, In re. Three Towns Banking Co. v. Maddever (27 Ch. Div. 
 
 523; 53 L. J. Ch. 998; 52 L. T. 35; 33 W. R. 286 C. A.) 220 
 
 Maddison v. Alderson (8 App. Cas. 467; 49 L. T. (N.S.) 303; 52 L. J. Q. 
 
 B. 737; 31 W. R. 820) * . 98, 323 
 
 Maggi, In re (20 Ch. Div. 545; 51 L. T. 560, 30 W. R. 729; 46 L. J. 432) 260 
 Malins u. Freeman (2 Keen 25; 6 L. J. (N.S.) Ch. 133; 1 Jur. 19 (nom. 
 
 Malins v. Fletcher)) 71 
 
 Mallan v. May (11 M. & W. 653; 1 L. T. 110, 258; 7 Jur. 536; 12 L. J. 
 
 Exch. 376) 89 
 
 Manley v. Benicke (8 D. M. & G. 470; 29 L. T. 276; 26 L. J. Ch. 20; 4 W. 
 
 R. 757) 290 
 
 Mann v. Stephens (15 Sim. 377; 10 Jur. 650) 140 
 
 Manners v. Mew (29 Ch. D. 725; 53 L. T. (N.S.) 84; 54 L. J. Ch. 909) 168, 170 
 Mapleson v. Quilter (9 Q. B. Div. 672; 47 L. T. (N.S.) 561; 31 W. R. 75; 
 
 52 L. J. Q. B. 44) 214 
 
 March, In re. Mander v. Harris (27 Ch. Div. 166; 52 L. J. Ch. 680; 49 L. 
 
 T. 168; 31 W. R. 885) 145 
 
 Marquis Camden v. Murray (16 Ch. L. 161; 43 L. T. (N.S.) 661; 50 L. J. 
 
 Ch. 282; 29 W. R. 190) 117 
 
 Marris v. Ingram (13 Ch. D. 338; 41 L. T. (N.S.) 613; 49 L. J. Ch. 123; 28 
 
 W. R. 434) 7 
 
 Marsh and Earl Granville, In re (24 Ch. Div. 11; 48 L. T. (N.S.) 947; 53 
 
 L. J. Ch. 81; 31 W. R. 845) 93 
 
 Martin v. Earl Beauchamp (25 Ch. Div. 12; 49 L. T. (N.S.) 334; 53 L. J. 
 
 Ch. 1150; 32W. /R. 17) 311 
 
 v. Roche, Eyton & Co. (34 W. R. 253; 53 L. L. 946) 87 
 
 Martinez v. Cooper (2 Russ. 198) 169 
 
 Martinson v. Clowes (21 Ch. D. 857; 46 L. T. (N.S.) 882; 51 L. J. Ch. 594; 
 
 30 W. R. 795) 177 
 
 Mason v. Westoby (32 Ch. D. 206) .....' 284 
 
 Matheson Brothers, Limited, In re. (27 Ch. D. 225; 32 W. E. 846; 51 L. 
 
 T. Ill) 236 
 
 Matthew v. Northern Assurance Co. (9 Ch. D. 80; 38 L. T. 468; 47 L. J. 
 
 Ch. 562) 264 
 
 Maiighan, In re. Ex parte Brandon (32 W. R. 352; 54 L. T. (N.S.) 128) 306 
 
 Maunsell v. White (4 H. L. C. 1039) 101 
 
 May v. May (33 Beav. 81) 249 
 
 v. Thomson (20 Ch. Div. 705; 47 L. T. (N.S.) 295; 51 L. J. Ch. 917) 96, 97 
 Mayor of Lyons v. Advocate-General of Bengal (1 App. Cas. 91; 34 L. T. 
 
 (N.S.) 77; 45 L. J. P. C. 17; 24 W. R. 679) . . . . • 27 
 
 McCulloch v. Dawes (9 D. & R. 40) 157 
 
 McEwen v. Crombie (25 Ch. D. 175; 53 L. J. Ch. 24; 49 L. T. 499; 32 W. 
 
 R. 115) 121 
 
 McFaddenu Jenkyns (1 Ph. 153; 7 Jur. 27; 12 L. J. Ch. 146) 12 
 
 McGibbon v. Abbott (10 App. Cas. 653) 229 
 
 McMyn, In re. Lightbown v. McMyn (33 Ch. Div. 575) 260 
 
 McPherson v. Watt (3 App. Cas. 254) 189, 191 
 
 McQueen v. Farquhar (11 Vesey, 467) _ 227 
 
TABLE OF CASES. 29 
 
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 PAGE 
 
 Mead, In re. Austin v. Mead (15 Ch. D. 651; 43 L. T. (N.S.) 117: 50 L. 
 
 J. Ch. 30; -28 W. R. 891) 122 
 
 Mercer, Ex parte. Wise, In re (17 Q. B. D. 290; 55 L. J. Q. B. 558; 54 
 
 L. T. 720) ' . 220 
 
 Merchant Banking Co. of London v. London & Hanseatic Bank (55 L. J. 
 
 Ch. 479; W. N. (1886) 5) 176 
 
 Merciera. Pepperell (19 Ch. D. 58; 45 L. T. (N.S.) 609; 51 L. J. Ch. 63; 
 
 30 W. E. 228) 312 
 
 Meredith, In re. Meredith v. Faeey (29 Ch. D. 745; 33 W. E. 778; 54 L. 
 
 J. Ch. 1106) ' 18 
 
 Meyer v. Simonsen (5 De G. & S. 723; 21 L. J. Ch. 678) 212 
 
 Michael Trusts, In re (46 L. J. Ch. 651) 232 
 
 Michel v. Mutch (34 W. E. 251; 54 L. T. (N.S.) 45; 55 L. J. Ch. 485) . . 312 
 Micklethwait ». Micklethwait (1 De G. & J. 504; 30 L. T. 5; 5 "W. E. 861; 
 
 3 Jur. (N.S.) 1279; 26 L. J. Ch. 721) , . . . . 34 
 
 Middleton v. Chichester (L. E. 6 Ch. 156; 24 L. T. (N.S.) 173; 40 L. J. 
 
 Ch. 237; 19 W. E. 369) 7 
 
 v. Pollock (4 Ch. D. 49; 35 L. T. (N.S.) 608; 46 L. J. Ch. 39; 
 
 25 W. E. 94) 13 
 
 In re. Thompson v. Harris (19 Ch. Div. 552; 46 L. T. (N.S.) 
 
 359; 51 L. J. Ch. 273; 30 W. E. 203) 244 
 
 r. Eeay (7 Ha. 106; 13 Jur. 116; 18 L. J. Ch. 153) 113 
 
 Mildmay v. Quicke (6 Ch. D. 553; 25 W. E. 788; 46 L. J. Ch. 667) ... 199 
 
 Miles v. Harford (12 Ch. X). 691; 41 L. T. (N.S.) 378) 22,27 
 
 v. Harrison (L. E. 9 Ch. 316; 30 L. T. (N.S.) 190; 43 L. J. Ch. 585; 
 
 22 W. E. 441) 225 
 
 Miller v. Cook (L. E. 10 Eq. 641; 40 L. J. Ch. 11; 22 L. T. 740; 18 W. E. 
 
 1061) 134 
 
 Miller and Miller, In re (33 W. E. 210; 51 L. T. (N.S.) 853; 54 L. J. Ch. 205) 
 
 Miller v. Miller (3 P. Wins. 356) 125 
 
 Millington v. Loring (6 Q. B. D. 190; 43 L. T. 657; 29 W. E. 209; 50 L. 
 
 J. Q. B. 214) , 301 
 
 Mills v. Farmer (1 Mer. 55) .' 27 
 
 Ex parte. Tew, In re (L. E. 8 Ch. 569; 28 L. T. (N.S.) 606; 21 W. 
 
 E. 557) 77 
 
 Milroy v. Lord (4 De G. F. & J. 264; 7 L. T. (N.S.) 178; 31 L. J. Ch. 798; 
 
 '8 Jnr. (N.S.) 806) ... ' . 9 
 
 Minet v. Morgan (L. E. 8 Ch. 361 ; 42 L. J. Ch. 627 ; 28 L. T. 573 ; 21 W. 
 
 E. 467) 287 
 
 Minors v. Battison (1 App. Cas. 428 ; 35 L. T. (N.S.) 1 ; 46 L. J. Ch 2) . Ill 
 Mitchell v. Homfray (8 Q. B. Div. 587 ; 5 L. J. Q. B. 460 ; 45 L. T. 694 ; 
 
 22 W E 558 C A ) 192 
 
 ». Reynolds '(IP.' Wms. 181 ; 10 Mod. 27,' 85, 130) . . '. . ' 89 
 
 Mogg v. Hodges (2 Ves. 52) 224 
 
 Moggridge v. Thackwell (7 Ves. 36) 25 
 
 Molloy v. Kilby (15 Ch. Div. 162 ; 29 W. R. 127, C. A.) 287 
 
 Money v. Jorden (5 H. L. C. 185 ; 24 L. T. 160 ; 23 L. J. Ch. 865) .... 101 
 Monk'house, Ex parte. Maughan, In re (14 Q. B. D. 956 ; 33 W. R. 308 ; 
 
 . 54 L. J. Q. B. 128) 136 
 
 Montagu v. Earl of Sandwich (32 Ch. Div. 525) 258 
 
 Montefiore v. Browne (7 H. L. C. 241 ; 4 Jur. (N.S.) 1202) 17 
 
 Moore v. Darton (4 De G. & Sm. 517) 125 
 
 v. Moore (1 D. J. & S. 602 ; 8 L. T. (N.S.) 562 ; 32 L. J. Ch. 605 ; 
 
 11 W. R. 790) 215 • 
 
 v. Moore (L. R. 18 Eq. 474 ; 43 L. J. Ch. 617 ; 30 L. T. 752 ; 22 W. 
 
 R. 729) ....... 125 
 
 In re. Moore v. Rodie (34 W. E. 343 ; 54 L. T. (N.S.) 231 ; 55 
 
 L. J. Ch. 418) 15 
 
30 TABLE OF CASES. 
 
 [The paging refers to the [*] pages. ] 
 
 PAGE 
 
 Mordaunt v. Benwell (19 Ch. D. 302 ; 45 L. T. (N.S.) 585 ; 51 L. J. Ch. 
 
 247 : 30 W. R. 227) 50 
 
 Morgan *. Minet (6 Ch. D. 645 ; 36 L. T. 948 ; 25 W. R. 744) 191 
 
 Morland v. Cook (L. K. 6 Eq. 252 ; 37 L. J. Ch. 825 ; 16 W. R. 777 ; 18 L. 
 
 T. 497) 240 
 
 Morritt, In re (18 Q. B. Div. 222 ; 34 W. R. 579) 174 
 
 Morton v. Palmer (9 Q. B. D. 89 ; 46 L. T. (N.S.) 85 ; 51 L. J. Q. B. 307 ; 
 
 30 W. R. 951) 311 
 
 Moxon v. Payne (L. R. 8 Ch. 881 ; 43 L. J. Ch. 240) 209 
 
 Mollins v. Miller (22 Ch. D. 184 ; 52 L. J. (Ch.) 380 ; 48 L. T. (N.S.) 103; 
 
 51 W. R. 559) 205 
 
 Munster v. Cox (10 App. Cas. 680 ; 53 L. T. (N.S.) 474 ; 55 L. J. Q. B. 
 
 108 ; 34 W. R. 461) .- 86 
 
 Musgrave v. Sandeman (48 L. T. 215) 233 
 
 Mussoorie Bank v. Raynor (7 App. Cas. 321 ; 46 L. T. (N.S.) 633 ; 51 L. J. 
 
 P. C. 72 ; 31 W. R. 17) 4, 15, 16 
 
 Mycock v. Beatson (13 Ch. D. 384 ; 42 L. T. (N.S.) 141 ; 49 L. J. Ch. 127; 
 
 28 W. R. 318) . 8? 
 
 N. 
 
 National Assurance, &c, Association, In re. Cross, In re (L. R. 7 Ch. 221; 
 
 26 L. T. (N.S.) 53 ; 41 L. J. Ch. 341 ; 20 W. R. 324) .... 309 
 Provincial Bank of England v. Games (31 Ch. Div. 582 ; 54 L. T. 
 
 (N.S.) 696; 55 L. J. Ch. 576 ; 34 W. R. 600) . . .181 
 
 Provincial Bank of England v. Jackson (33 Ch. Div. 1 ; 55 L. T. 
 
 458 ; 34 W. R. 597) 170 
 
 Native Iron Ore Co., In re (2 Ch. D. 345 ; 24 W. R. 503 ; 45 L. J. (Ch.) 
 
 517 ; 34 L. T. 777) 55, 56 
 
 Naylor and Spedla's Contrast. In re (34 Ch. D. 217 ; 56 W. R. 253) . . 155 
 Neal, In re. Weston v. Neal (31 Ch. D. 437 ; 34 W. R. 319 ; 55 L. J. Ch. 
 
 376) 311 
 
 Neate v. Duke of Marlborough (3 My. & Cr. 407 ; 2 Jur. 76) . . . . 2fij2 
 
 Neilson v. Mossend Iron Co. (11 App. Cas. 298) 85 
 
 Neville v. Snelling '15 Ch. D. 679 ; 28 W. R. 375 ; 49 L. J. (Ch.) 777 ; 43 
 
 L. T. 244) 133 
 
 Newbiggin-by-the-Sea, &c, v. Armstrong (13 Ch. Div. 310 ; 41 L. T. (N.S.) 
 
 637 ; 49 L. J. Ch. 231 ; 28 W. R. 217) 309, 311 
 
 Newbould v. Smith (33 Ch. Div. 127 ; 55 L. T. (N.S.) 194 ; 55 L. J. Ch. 
 
 788 ; 34 W. R. 690) 129 
 
 New Callao, In re (22 Ch. Div. 484 ; 52 L. J. Ch. 283 ; 31 W. R. 185 ; 48 
 
 L. T. 251) 316 
 
 Newcastle's Estates, Duke of, In re (24 Ch. D. 137 ; 48 L. T. (N.S.) 779; 
 
 52 L. J. Ch. 645 ; 31 W. R. 782) 150 
 
 Newcastle Fire Insurance Co., v. Macmorran & Co. (3 Dow. 262) .... 267 
 Newman, In re (4 Ch. Div. 724 ; 35 L. T. (N.S.) 718 : 46 L. J. (Bank.) 57; 
 
 25 W. R. 244) 40, 41 
 
 v. Newman (28 Ch. D. 674 ; 54 L. J. (Ch.) 598 ; 52 L. T. 422 ; 
 
 33 W. R. 505) 266 
 
 v. Rogers (4 Bro. C. C. 391) 246 
 
 Newmarch, In re. Newmarch v. Storr (9 Ch. Div. 12 ; 39 L. T. (N.S.) 
 
 146 ; 48 L. J. Ch. 28 ; 27 W. R. 104) . . 214 
 
 Newson v. Pender (27 Ch. D. 43) 329 
 
 New Zealand & Australian Land Co. v. Watson (7 Q. B. Div. 374 . 44 L. 
 
 T. (N.S.) 675 ; 50 L. J. Q. B. 433) 6 
 
 Nicholls v. Stretton (7 Beav. 42 ; 10 Q. B. 346) 90 
 
 Nickisson v. Cockill (3 De G. J. & S. 622) 117 
 
TABLE OF CASES. 31 
 
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 Nicols 11. Pitman (26 Ch. D. 374 ; 32 W. E. 631 ; 53 L. J. Ch. 552 ; 50 L. 
 
 T. 254) • ' 328 
 
 Nives v. Nives. (15 Ch. D. 649 ; 42 L. T. (N.S.) 832 ; 49 L. j. Ch. 674 ;' 29 
 
 W. E. 302) 102 
 
 Norris, In re. Allen v. Norris (27 Ch. D. 333 ; 51 L. T. (N.S.) 593 : 53 L. 
 
 J. Ch. 913 : 32 W. E. 955) ........ 113 
 
 North Central Wagon Co. v. M. S. L. Ey. Co. (32 Ch. D. 477; 54 L T 
 
 (N.S.) 487; 55 L, J. Ch. 780; 34 W. E. 430) 172 
 
 Northcote v. Doughty (4 C. P. D. 385) 134 
 
 Northern Insurance Co. v. Whipp (26 Ch. Div. 482; 51 L. T. (N.S )' 806- 
 
 53 L. J. Ch. 629; 32 "W. E. 626) 167 
 
 North London Land Co. v. Jacques (32 W. E. 283; 49 L. T. 659) . . 44 
 
 London Ey. Co. v. Great Northern Ey. Co. (11 Q. B. Div. 30) . . . 324 
 Northumberland & Durham District Banking Co., In re (2De G. & J. 371; 
 
 31 L. T. 107; 27 L. J. Ch. 356; 6 W. E. 527) 64 
 
 Norton v. Gover (W. N. 1877, p. 206) ,. 282 
 
 Nottingham Patent Brick Co. v. Buller (16 Q. B. Div. 778; 54 L. T. (N.S.) 
 
 444; 55 L. J. Q. B. 280; 34 W. E. 405) 142 
 
 Norwich Provident Insurance Society, In re. Bath's case (8 Ch. Div. 334; 
 
 38 L. T. (N.S.) 267; 47 L. J. Ch. 601; 26 W. E. 441) 210 
 
 Noyes v. Pollock (32 Ch. Div. 53; 34 W. E. 383; 54 L. T. (N.S) 473; 55 L. 
 
 J. Ch. 513) 163 
 
 Nurse v. Durnford (13 Ch. D. 764; 41 L. T. (N.S.) 611; 49 L. J. Ch. 229; 
 
 28 W. E. 145) 145 
 
 O. 
 
 Odell, Ex parte. Walden, In re (10 Ch. Div. 76; 39 L. T. (N.S.) 333; 48 
 
 L. J. Bank. 1; 27 W. E. 274) 171; 172 
 
 Oldham ». Stringer (33 W. E. 251; 51 L. T. (N.S.) 895) 177 
 
 Olive, In le. Olive v. Westerman (34 Ch. D. 70; 56 L. J. Ch. 75; 55 L. 
 
 T.,83) 105 
 
 Olley v. Fisher (34 Ch. D. 367; 56 L. J. 208) 70 
 
 O'Eeilly v. Thompson (2 Cox 271) 101 
 
 O'Eorke v. Bollingbroke (2 App. Cas. 814; 26 W. E. 239) . . . 130, 132, 133 
 
 Otter *. Lord Vaux (2 K. & J. 650) 53 
 
 Ovey, In re. Broadbent v. Barrow 29 Ch. D.*560; 33 W. E. 821; 54 L. J. 
 
 Ch. 752; 52 L. T. 849) ... 
 
 Owen v. Homan (4 H. L. C. 997) 261 
 
 Padstow Total Loss, &c, Assurance Association, In re (20 Ch. Div. 137; 
 
 45 L. T. (N.S.) 774; 51 L. J. Ch. 344; 30 W. E. 326) 62, 63 
 
 ■Paget's Settled Estates, In re (30«Ch. D. 161; 53 L: T. (N.S.) 90; 55 L. J. 
 
 Ch. 42; 33 W. E. 898) 44, 155 
 
 Paget v. Edde (L. E. 18 Eq ; 118; 43 L. J. Ch. 571; 22 W. B. 625; 30 L. T. 
 
 228) 236 
 
 v. Marshall (28 Ch. D. 255; 51 L. T. (S. S.) 351; 54 L. J. Ch. 575; 
 
 33 W. E. 608) 69 
 
 Paine's Trust, In re (28 Ch. D. 725; 52 L. T, (N.S.) 323; 54 L. J. Ch. 735; 
 
 33 W. E. 564) 12 
 
 Palmer v. Temple (9 Ad. & E. 508;, 8 L. J; (N.S) Q. B. 179) 42 
 
 v. Walesby (L. E. 3 Ch. 732; 19 L. T. (N.S) 1; 37 L. J. Ch. 612; 
 
 16 W. E. 924) 310 
 
 Papillon«>. Voice (2 P. Wms. 471; 1 Eq. Ca. Ahr. 185) 21 
 
 Parker v. First Avenue Hotel Co. {24 Ch. Div. 282; 32 W. E. 105; 49 L. 
 T.,(N.S.) 318) .... 328 
 
32 TABLE OF cases; 
 
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 AGE 
 
 Parker v. Gerard (Ambler, 236) .... 46 
 
 Parrot v. Pawlet (Carey Eep. 103) 308 
 
 Parsons, Ex parte (16 Q. B. Div. 532; 34 W. R. 329) 174 
 
 Patching '■». Barnett (51 L. J. Ch. 74; 45 L. T. (N.S.) 292) 245 
 
 Patent Bread Machinery Co., In re. Ex parte Valpv and. Chaplin, In re 
 
 (L. E. 7 Ch. 289; 26 L. T. (N.S.) 228; 20 W. E. 347) 55, 56 
 
 Patman v. Harland (17 Ch. D. 353; 44 L. T. (N.S.) 728; 50 L. J. Ch. 642; 
 
 29 W. E. 707) 238 
 
 Patrick «. Milner (2 C. P. D. 342; 36 L. T. (N.S.) 738; 46 L. J. C. P. 
 
 537; 25 W. E. 790) 246 
 
 Paul v. Paul (20 Ch. Div. 742; 47 L. T. (N.S) 210; 51 L. J. Ch. 839; 30 
 
 W. E. 801) . 10 
 
 Pawsey v. Armstrong (18 Ch. D. 698; 30 W. E. 469; 50 L. J. Ch. 683) . 74 
 
 Payne v. Banner (15 L. J. Ch. 227) ' 246 
 
 Peace & Waller, In re (24 Ch Div. 405; 49 L. T. (N.S.) 637; 31 W. E. 899) 283 
 
 Pearceu. Foster (15 Q. B. D. 114) 287 
 
 Pearse v. Pearse (1 De G. & Sm. 12; 8 L. T. 361; 16 L. J. Ch. 153; 11 
 
 Jur. 52) 286 
 
 Pearson v. Pearson (27 Ch. Div. 145; 51 L. T. (N.S.) 311; 54 L. J. Ch. 32; 
 
 32 W. E. 1006) 70, 87, 89, 90 
 
 Pease v. Fletcher (1 Ch. D. 273) 282 
 
 v. Jackson (L. E. 3 Ch. 676) 170 
 
 v. Pattinson (32 Ch. D. 154; 54 L. T. (N.S.) 209; 55 L. J. Ch. 517; 
 
 34 W. E. 361) 28 
 
 Peat v. Nicholson (34 W. E. 451; 54 L. T. 569; W. N. (1886) 55) .... 284 
 Peak v. Gurney (L. E. 6 H. L. 377; 22 W. R. 29; 43 L. J. Ch. 19) ... 207 
 Pemberton v. Barnes (L. E. 6 Ch. 685; 25 L. T. (N.S.) 577; 40 L. J. Ch. 
 
 675; 19 W. E. 988) 45 
 
 Pendlebury u Walker (4 Y. & C. Ex. p. 441) 259 
 
 Penn v. Lord Baltimore (1 Ves. Sen. 444) 235 
 
 Pennell v. Deffell (4 D. M. & G. 772) . 3 
 
 Penny v. Watts (1 Hall & T. 266; 1 Mac. & G. 150; 14 L. T. 82; 19 L. J. 
 
 Ch. 212; 13 Jur. 4591 ... 241 
 
 Perry-Herrick v. Atwood (2 De G. & J. 21; 30 L. T. 267; 4 Jur. (N.S.) 
 
 101; 27 L. J. Ch. 121; 6 W. R. 204) 169 
 
 Perse v. Perse (7 CI. & Fin. 279; West, 110) 209 
 
 Peter v. Eussell (1 Eq. Cas. Abr. 321; 2 Vern. 726; Gilb. Eq. Eep. 122) . 169 
 Philipsu. Beale(26Ch. Div. 621; .50 L. T. (N.S.) 433 {mom. Philips v. 
 Beall, el sic infra); 54 L. J. Ch. 80 [nom. Phillip v. Beall) 1 ; 32 W. 
 
 E. 665 293 
 
 v. Jones (28 S. J. 360) 282 
 
 Phillips, In re (34 Ch D. 467; 56 L. T. (N.S.) 144; 56 L. J. Ch. 337; 35 
 
 W. E. 284) . . 279 
 
 v. Andrews (35 W. E. 266; 56 L. T. (N.S.) 108) ... .50 
 
 v. Homfray (W. N. 1884, p. 171) ., 298 
 
 v. Miller (9 C. P. 196; 43 L. J. C. P. 74; 22 W. E. 485: 30 L. T. 
 
 31) 240 
 
 Philpott v. St. George's Hospital (6 H. L. C. 338; 30 L. T. 15; 27 L. J. 
 
 Ch. 70; 5 W. E. 845; 3 Jur. (N.S.) 1269) 32 
 
 Pickersgill v. Eodger (5 Ch. D. 163) 272 
 
 Piercy v. Young (14 Ch. Div. 200; 42 L. T. (N.S.) 710; 28 W. E. 845) . 83 
 Piffard v. Beeby (L. R. 1 Eq. 623; 14 L. T. (N.S.) 8; 35 L. J. Ch. 258; 14 
 
 W. E. 302; 12 Jur. (N.S.) 117) 290 
 
 Pigott and the G. W. Ey. Co., In re (18 Ch. D. 146; 44 L. T. (N.S.) 
 
 792; 50 L. J. Ch. 679; 29 W. E. 727) 206 
 
 Pike v. Fitzgibbon (17 Ch. Div. 544; 29'W. E. 551; 50 L. J. Ch. 394; 44 
 
 L. T. Eep. (N.S.) 562) 146 
 
 Pinkerton v. Easton (L. E. 16 Eq. 490) 194 
 
TABLE OP CASES, 33 
 
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 Pitt v. Jones (5 App. Cas. 659; 43 L. T. (N.S.) 385; 49 L. J. Ch. 795; 29 
 
 W. E. 33) 49 
 
 Piatt v. Mendel (27 Ch. D. 246; 51 L. T. (N.S.) 424; 54 L. J. Ch. 1145; 
 
 32 W. B. 918) • 162 
 
 Plews v. Baker (L. R. 16 Eq. 564; 43 L. J. Ch. 212) . 83 
 
 Plumb v. Fluitt (2 Anst. 438) 040 
 
 Pluiner v. Gregory (L. E. 18 Eq. 621; 31 L. T. (N.S.) 17, 80; 43 L. j. Cli. 
 
 616,803) 78,79 
 
 Pooock v. A. G. (3 Ch. Div. 342; 35 L. T. (N.S.) 575; 46 L. J. Ch. 495; 25 
 
 W. E. 277) , 27 
 
 Pollard, Ex parte (Mont. & Ch. 239) [ . 235 
 
 v. Clayton (1 K. & J. 462) . 246, 247 
 
 Poole's Settled Estates, In re (32 W. E. 956) . ... . . 155 
 
 Pooley's Trustee v. "Whetham (33 Ch. Div. Ill) 192 
 
 Pooley v. Driver (5 Ch. D. 458; 36 L. T. (N.S.) 79; 46 L. J. Ch. 466; 25 
 
 W. R. 162) 74, 76 
 
 Pope, In re (34 W. E. 654, 693; 17 Q. B. D. 743; 55 L. J. Q. B. 522; 55 L. 
 
 T. 268, 369) 034 
 
 Porrett v. White (31 Ch. Div. 52; 53 L. T. (N.S.) 514; 55 L. J. Ch. 79; 34 
 
 W. E. 65) 298 
 
 Porter v. Lopes (7 Ch. D. 358; 37 L. T. (N.S.) 824) 47 
 
 Powell v. Cobb (29 Ch. Div. 486; 52 L. T. (N.S.) 183; 54 L. J. Ch. 962) . 294 
 Powers, In re. Lindsell v. Phillips (30 Ch. Div. 291; 53 L. T. (N.S.) 647) 128 
 Powys v. Blagrave (4 De G. M. & G. 448; Kay, 495; 24 L. T. 17; 24 L. J. 
 
 Ch. 142; "W. E. 700) 38 
 
 v. Mansfield (3 My. & Cr. 359) 250 
 
 Pragnell v. Batten (16 Ch. D. 360; 43 L. T. (N.S.) 749; 50 L. J. Ch. 272; 
 
 •29 W. E. 495) 50 
 
 Pratt v. Harvey (L. E. 12 Eq. 544; 25 L. T. (N.S.) 200; 19 W. E. 950) . 32 
 Preston v. Luck (27 Ch. D. 497) . . . ... . . 328 
 
 v. Neele (12 Ch. D. 760) * 268 
 
 Prestney r. Corporation of Colchester (24 Ch. Div. 376; 48' L. T. (N.S.) 
 
 749; 52 L. J. Ch. 877; 31 W. R. 757) .292 
 
 Prestwich r. Poley (18 C. B. (N.S.) 806;12 L. T. (N.S.) 390; 39 L. J. C. 
 
 P. 189; 13 W. R. 753 (mom. Pristwiek v. Poley); 11 Jur. (N.S.) 583) . . 210 
 Price, In re. Leighton v. Price (32 W. R. 1009) . ... . . 156 
 
 In re. Stafford v. Stafford (28 Ch. D. 709) .145 
 
 v. Green (16 M. & W. 346; 16 L. J. Exch. 108) 90 
 
 Prince v. Hine (27 Beav. 345) 120 
 
 Prudential Assurance v. Knott (L. R. 10 Ch. 142) 328 
 
 Pumfrey, deed., In re (22 Ch. D. 255) 120 
 
 Pybus v. Smith (1 Ves. Jur. 189) 231 
 
 Pye, Ex parte (18 Ves. 140) 256 
 
 Q- 
 
 Quartz Hill Consolidated, &c, Co. v. Beall (20 Ch. Div. 501; 51 L. J. Ch. 
 
 874; 46 L. T. (N.S.) 746; 30 W. R. 583) 328 
 
 Queade's Trusts, In re (33 W. R. 816) ' 149 
 
 Quilter v. Heatley (23 Ch. D. 42; 48 L. T. (N.S.) 373; 31 W. R. 331) . 293 
 ■u. Mapleson (9Q. B. Div. 672; 52 L. J. Q. B. 44; -31 W. R. 75) 44. 314 
 
 E. 
 
 Eadcliflfe, In re (7 Ch. D. 733; 26 W. E. 417) ... ... 282 
 
 Eaggett, In re (16 Ch. D. 117) . ,. . . 181 
 
 Rainbow v. Juggins (5 Q. B. D. 422) 261 
 
 Eandle v. Pavne (23 Ch. Div. 288; 48 L. T. (N.S.) 194; 52 L. J. Ch. 544; 
 31 W. E. 509) 311 
 
 3 MODERN EQUITY. 
 
34 TABLE OF CASES. 
 
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 Ranelaughc. Hayes (1 Vern. 189; 2 Ch. Cas. 146) . . ." 260 
 
 Ratcliffe v. Barnard (L. R. 6 Ch. 652; 24 L. T. (N.S.) 215 (Lord Romilly, 
 
 M. R); 40 L. J. Ch. 777; 19 W. R. 764) 169 
 
 Ray's Settled Estates, In re (25 Ch. D. 464; 50 L. T. (N.S.)' 80; 53 L. J. 
 
 Ch. 205; 32 W. R. 458) 152, 155 
 
 Redgrave v. Hnrd (20 Ch. Div. 1; 45 L. T. (N.S.) 485; 54 L. J. Ch. 113; 
 
 30 W. R. 251) 201, 205 
 
 Reese Silver mining Co. v. Smith (L. R. 4 H. L. 64; 39 L. J. Ch. 849; 17 
 
 W. R. 1042) 203 
 
 Reidu. Reid (31 Ch. Div. 402; 54 L. T. (N.S.) 100; 55 L. J. Ch. 294; 34 
 
 W. R. 332) 142 
 
 Renals v. Cowlishaw (9 Ch. D. 125); 11 Ch. Div. 866; 41 L. T. (N.S.) 116; 
 
 48 L. J. Ch. 33, 830; 28 W. R. 9) 139 
 
 Reuter v. Sala (4 C. P. Div. 239) 247 
 
 Rhodes r. Bate (L. R. 1 Ch. 252) 192 
 
 Richards v. Delbridge (L. R. 18 Eq. 11 ; 43 L, J. Ch. 459; 22 W. R. 584) 8 
 
 v. Syms (Barnard. Ch. Cas. 90) 125 
 
 Richmond v. White (12 Ch. Div. 361; 48 L. J. Ch. 798; 27 W. R. 878) 157 
 
 Riddell v. Errington (26 Ch. D. 220) 145 
 
 Ridler, In re. Ridler v. Ridler (22 Ch. Div. 82; 52 L. J. Ch. 343; 48 L. 
 
 T. (N.S.) 396) 219, 220 
 
 Ridley. In re. Buckton v. Hay (11 Ch. D. 645; 27 W. R. 527; 48 L. J. Ch. 
 
 563; 41 L. T. (N.S.) 336) 232 
 
 Rimington v. Hartley (14 Ch. D. 629; 43 L. T. (N.S.) 15; 29 W. R. 42) . 50 
 Rivett-Carnac's Will, Sir J. (30 Ch. D. 136; 53 L. T. (N.S.) 81; 54 L. J. 
 
 Ch. 1074; 33 W. R. 837) 151, 154 
 
 Roberts v. Berry (3 D. M. & G-. 284; 20 L. T. 215; 22 L. J. Ch. 398) . 245 
 
 v. Roberts (13 Q. B. Div. 794) 174 
 
 Robertson y. Broadbent (8 App. Cas. 815) 244 
 
 Robins v. Goldingham (19 W. R. 429) 196 
 
 Robinson v. London Hospital, Gov. of (10 Ha. 19; 22 L. J. Ch. 754) ... 225 
 
 v. Pett (3 P. W. 251) 185 
 
 v. Rutter (4 E. & B. 954; 25 L T. 127; 24 L. J. Q. B. 250; 3 W. 
 
 R. 405; 1 Jur. (N.S.) 823) . 223 
 
 v. Trevor (12 Q. B. Div. 423) 171 
 
 Rogers v. Ingham (3 Ch. D. 351; 35 L. T. (N.S.) 677; 25 W. R. 338) . . 64 
 
 v. Jones (3 Ch. D. 688) 273 
 
 Rolls v. Pearce (5 Ch. D. 730; 36 L. T. (N.S.) 438; 46 L. J. Ch. 791; 25 
 
 W. R. 899) 123, 124 
 
 Roper's Trusts, In re (11 Ch. D. 272; 40 L. T. (N.S.) 97; 27 W. R. 408) . 115 
 
 Ross v. Army and Navy Hotel Co. (34 Ch. Div. 43) . . . 58 
 
 Rossiter ». Miller (3 App. Cas. 1124; 39 L. T. (N.S.) 173; 48 L. J. Ch. 10; 
 
 26 W. R. 865) 94 
 
 In re. Rossiter v. Rossiter (13 Ch. D. 355; 49 L. J. Ch. 36; 28 
 
 W. R. 238) 217 
 
 Rothschild v. Brookman (2 Dow. & C. 188; 7 L. J. Ch. 163 (V.-C.) ) . . 191 
 
 Rowe v. Gray (5 Ch. D. 262) 47 
 
 Rowland v. Witherden (3 M. & G. 568) 104 
 
 Rowley v. Rowley (Kay, 242) 228 
 
 Rownson, In re. Field v. White (29 Ch. Div. 358; 52 L. T. ^.S.) 825; 54 
 
 L. J. Ch. 950; 33 W. R. 604) 156 
 
 Rousillonu. Rousillon (14 Ch. D. 351; 42 L. T. (N.S.) 679; 49 L. J. Ch. 
 
 338* 28 W. R. 623) 89 237 
 
 Royce, In re (5 Ch. D.'540; 36L.T. (N.S.) 441; 25 W. R. 528)'. . . . .' 321 
 Russell, Ex parte. Butterworth, In re (19 Ch. Div. 588; 51 L. J. Ch. 521; 
 
 46 L. T. (N.S.) 113; 30 W. R. 584 220 
 
 v. Russell (14 Ch. D. 471;. 42 L. T. (N.S.) 112; 49 L. J. Ch. 268) 83 
 
TABLE OF CASES. 35 
 
 [The paging refers to the [*] pages. ] 
 
 s. 
 
 PAGE 
 
 Sackville v. Smyth (L. R, 17 Eq. 153; 43 L. J. Ch. 49-1; 22 W. R. 179) . 218 
 Sackville-West v. Viscount Holmesdale (L. E. 4 H. L. 543; 39 L. J (Ch ) 
 
 505) . . . . 19 
 
 Salt v. Cooper (16 Ch. Div. 544; 43 L. T. (N.S.) 682; 50 L." J. Ch. 529; 29 
 
 W. R. 553) 280 
 
 Salting, Ex parte. Stratton, In re (25 Ch. Div. 148: 49 L. T. (N.S.) 694; 
 
 53 L. J. Ch. 415; 32 W. E. 450) 224 
 
 Sampson and Wall, In re (25 Ch. D. 482; 50 L. T. (N.S.) 435; 53 L. j. Ch. 
 
 457; 32 W. E. 617) 279' 
 
 Sands to Thompson (22 Ch. D. 614; 52 L. J. Ch. 406; 48 L. T. 210; 31 W. 
 
 E. 397) 128 
 
 Sanger v. Sanger (L. E. 11 Eq. 470; 40 L. ,T. Ch. 372; 19 W. E. 792; 24 L. 
 
 T. 649) 232 
 
 Sangster v. Cockrane (28 Ch. D. 298; 54 L. J: Ch. 301; 51 L. T. 889; 33 W. 
 
 E. 221) . . . : ' . . . ... 171 
 
 Sarah, Knight's "Will, In re (26 Ch. Div. 82) . 121 
 
 Savery v. King (5 H. L. C. 627) 134 
 
 Saunders-Davies, In re. S. v. S. (34 Ch. D. 482; 56 L. T. (N.S.) 153; 56 
 
 L. J. Ch. 492; 35 W. E. 493) 244 
 
 Savage, In re (15 Ch. D. 557; 29 W. E. 348) 310. 311 
 
 Saxby v. Easterbrook (3 C. P. D. 339) 328 
 
 Saxon Life. Assurance Society, Ee (2 J. & H. 408; 7 L. T. (N.S.) 22, 404 
 
 (before L.JJ.); 32 L. J. Ch. 206; 1 D. J. & S. 29; 10 W. E. 724) ... 66 
 Sayers v. Collyer (28 Ch. Div. 103; 52 L. J. Ch. 770; 48 L. T. 939; 32 W. 
 
 E. 200) .142 
 
 Sayre v. Hughes (L. E. 5 Eq. 381) 250 
 
 Scarf v. Jardine (7 App. Cas. 345; 47 L. T. (N.S.) 258; 51 L. J. Q. B. 612; 
 
 30 W. E. 893) 84 
 
 Scholes & Sons, In re (32 Ch. D. 245; 55 L. J. Ch. 626; 34 "W. E. 515) . 311 
 
 Scott -v. Matthew Brown & Co. (51 L. T. 746) 44 
 
 v. Pape (31 Ch. D. 554) 329 
 
 Scottish Petroleum Co., In re. Wallace's Case (23 Ch. Div 413; 49 L. T. 
 
 348; 31 W. E. 846) 206 
 
 Scotto v. Heritage (L. E. 3 Eq. 212; 15 L. T. 349; 15 W. E. 168) ... 184 
 
 Seagrimw Tuck (18 Ch. D. 296) 285 
 
 Searle v. Choat (25 Ch. Div. 723; 50 L. T. (N.S.) 470; 53 L. J. Ch. 506; 
 
 32 W. E. 397) . 283 
 
 Seaton v. Grant (L. E. 2 Ch. 459; 16 L. T. (N.S.)'758; 36 h. j. Ch. 638; 
 
 15 W. E. 602) .308 
 
 Sebright's Settled Estates, In re (33 Ch. Div. 429; 55 L. T. 354-570; 35 W. 
 
 R. 49) 155 
 
 Shakespear, In re. Deakin v. Lakin i"30 Ch. D. 169; 55 L. J. Ch. 44; 53 ' 
 
 L. T. 145; 33 W. R. 744) ... . . . 145 
 
 Shanley v. Harvey (2 Ed. Eep. 125) 125 
 
 Shardlowti. Cotterell (20 Ch. Div. 90; 51 L. J. Ch. 353; 45 L. T. 572; 30 
 
 W. R. 143) 97 
 
 Shaw v. Benson (11 Q. B. Div. 563; 49 L. T. (N.S.) 651; 52 L. J. Q. B. 
 
 575) . . 63 
 
 ». Smith (18 Q. B. D. 196) 287 
 
 Shelley v. Westbrook (cited in Lyons v. Blenkin, Jack. 267*) . ... 279 
 
 Shelly's Case (1 Rep. 936; Tudor R. P. Cas.) . . . . : '. 21 
 
 Shiel", Ex parte. Lonergan, In re (4 Ch. Div. 789; 46 L. J. (Bk.) 62; 36 
 
 L. T. (N.S.) 270; 25 W. R. 420) 76 
 
 Shrodere. Myers (34 W. E. 261) •. . . 295 
 
 Shurmur v. Sedgwick (24 Ch. D. 597; 49 L. T. 156; 31 W. R. 884) ... 11 
 
Q. 
 
 R. 
 
 184 
 
 67 
 
 78 
 
 286 
 
 36 TABLE OF CASES. 
 
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 PAGE 
 
 Siddall, In re (29 Ch. Div. 1; 52 L. T. (N.S.) 114; 54 L. J. Ch. 682; 33 W. 
 
 . R. 509) .63 
 
 Simons v. McAdam (L. R. 6 Eq. 324; 38 L. J. Ch. 751) 
 
 Simmonds, Ex parte (16 Q. B. Div. 308; 54 L. T. (N.S.) 439; 55 L. J. 
 
 B. 74; 34 W. R. 421) 
 
 Sims v. Brutton (5 Ex. 802; 16 L. T. 173; 20 L. J. Ex. 41) . . 
 
 Slade v. Tucker (14 Ch. D. 824; 49 L. J. Ch. 644; 43 L. T. 49; 28 W 
 
 807) 
 
 Sleeman v. Wilson (L. R. 13 Eq. 36; 25 L. T. (N.S.) 408; 20 "W. R. 109) . 276 
 
 Sloane«. Cadogan (Sug. V. & P. App.) 10 
 
 Smethurst v. Hastings (30 Ch. D. 490; 55 L. J. Ch. 173) . . . . 105 
 
 Smith v. Anderson (15 Ch. Div. 247; 50 L. J. Ch. 39) 59, 62 
 
 v. Armitage (24 Ch. D. 727) . 322 
 
 v. Chadwick (9 App. Cas. 187 ; 50 L. T. (N.S.) 697; 53 L. J. Ch. 
 
 873; 32 W. R. 687) . 203, 204, 205 
 
 v. Cowell (6 Q. B. D. 75) 282 
 
 r. Davies (28 Ch. D. 650; 52 L. T. (N.S.) 19; 54 L. J. Ch. 278) . 162 
 
 v. Day (21 Ch. D. 421) • 327 
 
 In re. Hannington v. True, Giles v. True (33 Ch. D. 195 ; 55 L. 
 
 J. Ch. 914; 35 W. R. 103) 218 
 
 v. Land & House Property Corporation (28 Ch. Div. 7 ; 51 L. T. 
 
 (N.S.) 718) 205 
 
 v. Lucas (18 Ch. D. 544; 45 L. T. (N.S.) 460) 273 
 
 v. Odling (25 Ch. D. 462; 50 L. T. (N.S.) 357 ; 54 L. J. Ch. 250; 32 
 
 W. R. 386) . . .162 
 
 v. Smith (2 Stra. 955) 125 
 
 Snellgrove v. Baily (3 Atk. 214) ,125 
 
 Soar v. Foster (4 K. & J. 152) 251 
 
 Soeeete Anonyme des Manufactures de Glaces v. Si'lgham's Patent Sand 
 
 Blast Co. (25 Ch. D. 1) 329 
 
 f. Generale de Paris v. Dreyfus Brothers (29 Ch. D. 239; 53 L. T. 
 
 (N.S.) 463; 54 L. J. Ch. 893; 33 W. R. 823) 305 
 
 Soutar's Policy Trust, In re (26 Ch. D. 236; 54 L. J. Ch. 256; 50 L. T. 
 262: 32 W. R. 701) .... . . . . . . 144 
 
 South, In re (L. R. 9 Ch. 369) 281 
 
 Durham Iron Co.. In re. Smith's Case (11 Ch. Div. 579 ; 40 L. T. 
 (N.S.) 572; 48 L. J. Ch. 480; 27 W. R. 845 (nom. Re South Durham 
 
 Iron Co.) ) . . . . 54 
 
 Speight v. Gaunt (9 App. Cas. 1; 50 L. T. (N.S.) 330 ; 53 L. J. Ch. 419; 
 
 32 W. R. 435 103, 104 
 
 Spencer's Case (5 Rep. 16; 1 Sm. L. C. 98) . . . 139, 141 
 
 Spencer v. Clarke (9 Ch. D. 137) 266 
 
 Spiller v. Maude (32 Ch. D. 158, n.; See Pease v. Pattinson 32 Ch. D. 154 ; 
 
 55 L. J. Ch. 617; 54 L. T. 209; 34 W. R. 361) 28 
 
 Spurrier v. Hancock (4 Ves. 667) ... ... . 246 
 
 Standing v. Bowring (31 Ch. Div. 282) . . . , . 252 
 
 Stanford, Ex parte (17 Q. B. Div. 259 ; 55 L. J. Q. B. 339-341; 54 L. T. 
 
 894; 31 W. R. 168, 237, 287, 507) . . 174 
 
 Stanger-Leathes v. Stanger-Leathes ("W. N. 1882, p. 71) 284 
 
 Staniar v. Evans (34 Ch. D. 470; 56 L T. (N.S.) 87-581; 35 TV. R. 286) 111, 197 
 Stannard v. Vestry of St. Giles, Camberwell (20 Ch. D. 190 ; 51 L. J. Ch. 
 
 629; 46 L. T. 243; 30 W. R. 693) 326 
 
 Stapilton v. Stapilton (1 Atk. >2) 208 
 
 Stead v. Mellor (5 Ch. D. 225; 36 L. T. (N.S.) 498 ; 46 L. J. Ch. 880 ; 25 
 
 W. R. 508) .15 
 
 Steed v. Preece (L. R. 18 Eq. 192; 43 L. J. Ch. 687; 22 W. R. 432) 197, 198,199 
 Steel v. Dixon (17 Ch. D. 825 ; 45 L. T. (N.S.) 142 ; 50 L. J. Ch. 591 ; 20 
 W. R. 735) 259 
 
TABLE OF CASES. 37 
 
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 Stevens v. Mid Hants Railway Co. (L. R. 8 Ch. 1064 ; 42 L. J. Ch. 694 ; 
 
 29 L. T. 318 ; 21 W. R. 858) 53 
 
 d. Robertson (37 L. J. Ch. (N.S.) 499) 106 
 
 Steward v. North Metropolitan Tramways Co. (16 Q. B. D. 556 : 55 L. j. 
 
 Q. B. 157 ; 54 L. J. (N.S.) 35) 304 
 
 St. John, Lord r. St. John, Lady (11 Ves. 539) .... 301 
 
 Stickney v. Sewell (1 My. & C. 8) 105 
 
 Stirling-Maxwell v. Cartwright (11 Ch. Div. 522 ; 40 L. T. (N.S.) 669 ; 48 
 
 L. J. Ch. 562 ; 27 AV. R. 850) . . .235 
 
 Stone, In re. (33 Ch. D. 541) 77 
 
 v. Godfrey (5 De G. M. & G. 76 ; 23 L. T. 289 ; 23 L. J. Ch. 769 ; 
 
 2 W. R. 118 (before Stuart, V.-C) ) . ... 66 
 
 v. Smith (35 Ch. D. 188) : . 97 
 
 Stonor's Trusts, In re. (24 Ch. D. 195; 32 W. R. 413 ; 52 L. J. Ch. 776 ; 
 
 48 L. T. 963) 149 
 
 Stourton r. Stourton (8 D. M. & G. 760) . .276 
 
 StottB. Milne (25 Ch. Div. 710; 50 L. T. (N.S.) 742) 118 
 
 Strangways, In re. Hickley n. Strangways (34 Ch. Div. 423 ; 35 W. R. 
 
 83, C. A.) . . 155 
 
 Street v. Union Bank of Spain and England (30 Ch. D. 156) . . 327 
 
 Strugnell v. Strugnell (27 Ch. D. 258 ; 51 L. T. (N.S.) 512; 53 L. J. Ch. 
 
 1167) 50 
 
 Sumsion v. Pictor (30 S. J. 468) 291 
 
 Surcome i>. Pinniger (3 De G. M. & G. 571 ; 17 Jur. 196 ; 22 L. J. Ch. 419) 102 
 Sutton's Trust, In re. (12 Ch. D. 175 ; 48 L. J. Ch. 350 ; 27 W. R. 529) 265 
 Sutton v. Sutton (22 Ch. Div. 511 ; 48 L. T. (N.S.) 95 ; 52 L. J. Ch. 333 ; 
 
 31 W. R. 369) 126, 128 
 
 Swaine v. Denby (14 Ch. D. 326 ; 49 L. J. Ch. 734) ; 28 "W. R. 622) ... 49 
 Swaisland v. Dearsley (29 Beav. 430 ; 4 L. T. 432 ; 9 W. R. 526) .... 71 
 Swansea Shipping Co. v. Duncan (1 Q. B. Div. 644 ; 35 L. T. (N.S.) 879 ; 
 
 45 L. J. Q. B. 638 ; 25 W. R. 233) 306 
 
 Sweetapple r. Bindon (2 Vern. 536) 21 
 
 Swinburne, In re. Swinburne v. Pitt (27 Ch. D. 696) 273 
 
 Swinfen v. Swinfen (18 C. B. 485 ; 25 L. J. C. P. 303) 210 
 
 Swire, In re. Mellor 11. Swire (30 Ch. D. 239 ; 53 L. T. (N.S.) 205) , . 318 
 Syers«. Syers (1 App. Cas. 174; 35 L. J. (N.S.) 101; 24 W. R. 970) . 76 
 
 Sykes, In re. (2 J. & H. 415) 10 
 
 Sykes v. Beaden (11 Ch. D. 170 ; 40 L. T. (N.S.) 243 ; 48 L. J. Ch. 522 ; 
 
 27 W. R. 464) 60 
 
 v. Schofield (14 Ch. D. 629 ; 49 L. J. Ch. 833 ; 42 L. T. 822 ; 29 W. 
 
 R. 68) 46 
 
 Symonds v. Hallett (24 Ch. Div. 346 ; 32 W. R. 103 ; 53 L. J. Ch. 60 ; 49 
 
 L. T. 380) . . . . .' 328 
 
 Svmons, In re. Luke v. Tonkin (21 Ch. D. 757 ; 30 W. R. 874 ; 46 L. T. 
 "684) 322 
 
 Tabor v. Brooks (10 Ch. D. 273 ; 39 L. T. (N.S.) 528 ; 48 L. J. Ch. 130) . 115 
 
 Talbot v. Frere (9 Ch. D. 568 ; 27 W. R. 148) 158 
 
 Tamplin «. James (15 Ch. D. 217) 70 
 
 Tanqueray-Williamune and Landau, In re. (20 Ch. Div. 465 ; 46 L. T. 
 
 (N.S. ) 542 ; 51 L. J. Ch. 434 ; 30 W. R. 801) 93, 244 
 
 Tassell v. Smith (2 De G. & J. 713 ; 32 L. T. 4 ; 27 L. J. Ch. 694 ; 6 W. 
 
 R. 803) 178 
 
 Tate. v. Hilbert (2 Ves. Jun. Ill ; 4 Bro. C. C. 286) 123 
 
 Taylor, In re. (4 Ch. D. 157 ; 36 L. T. (N.S.) 169 ; 46 L. J. Ch. 399 ; 25 
 
 W. R. 69) 277 
 
38 TABLE OF CASES. 
 
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 PAGE 
 
 Taylor •<,. Blakelock (32 Ch. Div. 560 ; 56 L. J. Ch. 390 ; 34 W. E. 175 
 
 (iiom. Taylor v. Blacklock) . . 4 
 
 v. Clark (1 Ha. 161; 6 Jur. 76; 11 L. J. Ch. 189) 213 
 
 v. Eckersley (2 Ch. D. 302) 282 
 
 v. Grange (15 Ch. Div. 165; 43 L. T. (N.S.) 233; 49 L. J. Ch. 
 
 794; 28 W. E. 93 (Fry, J.)) 49 
 
 Ex parte. Grayson, In re. (12 Ch. Div. 366) 77 
 
 v. Plumer (3 M. & S. 562) . 2 
 
 v. Ponoia (25 Ch. D. 646) 156 
 
 Taylor's Estate, In re. Tornlin v. Underhay (48 L. T. (N.S.) 552) . . 303 
 Teasdale r. Braithwaite (5 Ch. Div. 630 ; 46 L. J. Ch. 725 ; 36 L. J. (N.S.) 
 
 601 ; 25 W. E. 546) ' H 
 
 Tee v. De Caux (31 Ch. Div. 635 ; 54 L. T. (N.S.) 481 ; 34" W. E. 402) . . 180 
 Teevan r-. Smith (20 Ch. Div. 724 ; 47 L. T. (N.S.) 208 ; 51 L. J. Ch. 621 ; 
 
 30 W. E. 716) 163 
 
 Tempest v. Lord Camovs (21 Ch. Div. 571 ; 48 L. T. (N.S.) 13 ; 51 L. J. 
 
 Ch. 785 ; 31 W. E. 326) . . . , 116,117 
 
 Tennenfc, Ex parte. Howard, In re. (6 Ch. Div. 303) 76 
 
 Terry and White's Contract (32 Ch. DiV. 14 ; 54 L. T. (N.S.) 353 ; 55 L. J. 
 
 Ch. 315 ; 34 W. E. 379) 93 
 
 Thatched House Case (1 Eq. Cas. Abr. 321 ; 2 Vern. 276 ; Gilb. Eq. Eep. 
 
 122) . ... 169 
 
 Theed ?;. Debenham (2 Ch. D. 165) . 329 
 
 Thetford School Case (8 Co.) . . . 27 
 
 Thomas v. Brown (1 Q. B. D. 714) . ' 42 
 
 v. Palin (21 Ch- Div. 360; 47 L. T. (N.S.) 207; 30 W. E. 716) . . 312 
 In re. Poppleton, Ex parte (14 Q. B. D. 379; 51 L. T. (N.S.) 602; 
 
 54 L. J. Q. B. 336; 33 W. E. 583) . . ... 62 
 
 Thompson v. Fisher (L. E. 10 Eq.,207) 22 
 
 v. Ringer (44 L. T. (N.S.) 507; 29 W. E. 520) . . 92 
 
 Thomson !>. Welms (9 App. Cas. 671) .267 
 
 Thorley's Cattle Food Co. v. Massam (6 Ch. D. 682) 328 
 
 Thorndike v. Hunt (3 De G. & J. 563; 32 L. T. 346; 7 W. E. 246; 28 L. J. 
 
 Ch. 417) .' . . . . 4 
 
 Thorp v. Holdsworth (3 Ch. D. 637; 45 L. J. Ch. 406) 297 
 
 ThyDne, Lord, v. Earl and Countess Glengall (2 H. L. Cas. 131) . 256 
 
 Tickner v. Old (L. E. 18 Eq. 422) . . . 106 
 
 Tierney v. Wood (19 Beav. 330) 12 
 
 Tildesley v. Harper (10 Ch. Div. 393; 39 L. T. (N.S.) 552; 48 L. J. Ch. 
 
 495; 27 W. E. 249) 302 
 
 Tillett ». Nixon (25 Ch. D. 238; 49 L. T. (N.S.) 590; 53 L. J. Ch. 199; 32 
 
 W. R. 226) 284 
 
 Tilley v. Thomas (L. E. 3 Ch. 61; 17 L. T (N.S.) 422; 16 W. E. 166) . . 246 
 
 Todd v. Moorhouse (L. E. 19 Eq. 69; 32 L. T. (N.S.) 8; 23 W. E. 155) . . 263 
 
 Toller v. Carteret (2 Vern. 495) 236 
 
 Tomkins v. Colthurst (1 Ch. D. 626; 33 L. T. (N.S.) 391; 24 W. E. 267) . 244 
 
 Tomson v. Judge (3 Drew. 306) 192 
 
 Topham i>. Duke of Portland (1 De G. J. & S. 517) ...'.. 228 
 
 Townsend v. Toker (L. E. 1 Ch. 446) ... .11 
 
 Toulmin v. Steere (3 Mer. 210) ', 53 
 
 Trott e. Buchanan (28 Ch. D. 446; 52 L. T. (N.S.) 248; 54 L. J. Ch. 678; 
 
 33 W. E. 339 . . 242 
 
 Trowell v. Shenton (8 Ch. D. 324)' ....... \ ' .... . \ 102 
 
 Truman & Co. v. Eedgrave (18 Ch. D. 547) 284 
 
 Trammer v. Bayne (9 Ves. 209, 211) . 223 
 
 Tucker v. Bennett (34 Ch. D. 754) ... ... . . 69 
 
 v. Burrow (2 H. & M. 515) 251 
 
 Tuff, In re. Nottingham, Ex parte (W. N., 1887, p. 80) 147 
 
TABLE OF CASES. 39 
 
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 Tugwell, In re. (27 Ch. D. 309) 201 
 
 Tulk v. Moxhay (2 Phill. 774; 13 L. T. 21; 10 L. J. Ch. 83; 13 Jur. 89) 138, 
 
 139, 141 
 
 Tullett r. Armstrong (1 Beav. 1 ; 4 My. & Cr. 377) 231 
 
 Turnbull v. Forman (15 Q. B. Div. 234) 146 
 
 Turner v. Hancock (20 Ch. Div. 303) 121 
 
 r, Morgan (8 Ves. 143) 46 
 
 Turner's Settled Estates, Ee. (28 Ch. D. 205; 54 L. T. (N.S.) 690; 33 W. 
 
 E. 265; 52 L. T. 70) 228 
 
 Turner b. Turner (14 Ch. D. 829) . . . 70 
 
 Tussaud v. Tussaud (9 Ch. Div. 363; 39 L. T. (N.S.) 113; 47 L. J. Ch. 849; 
 
 26 W. E. 874) . . . .253 
 
 Tweedle r. Miles (27 Ch. D. 315; 54 L. J. Ch. 71) 93 
 
 Twyne's Case (3 Eep. 80; 1 Smith's Leading-Cas. 1) 220 
 
 Tyler v. Yates (L. E. 11 Eq. 265) 134 
 
 u. 
 
 Underbank Mills Co., In re. (31 Ch. D. 226; 55 L. J. Ch: 255; 34 W. E. 
 
 181) 58 
 
 Union Bank of London v. Ingram' (20 Ch. Div. 463; 46 L. T. (N.S.) 507; 
 
 51 L. J. Ch. 508; 30 W. E. 375) 175, 176 
 
 Bank of London v. Manby(13 Ch. D. 239; 49 L. J. Ch. 127) 291 
 
 United Kingdom Life Assurance Co. (34 Beav. 493) 291 
 
 Telephone Co. v. Dale 25 Ch. D. 778; 53 L. J. Ch. 295; 50 L. T. 
 (N.S.) 85; 32 W. E. 428) 329 
 
 Talpy i). Chaplin. Ex parte (L. E. 7 Ch. 289; 26 L. T. (N.S.) 228; 20 W. 
 
 E. 347) 55, 56 
 
 Vane v. Lord Barnard (2 Vern. 738; 1 Salk. 160) 35 
 
 Vardon's Trusts, In re. (31 Ch. Div. 275; 53 L. T. (N.S.) 895; 55 L. J. 
 
 Ch. 259; 34 W. E. 185) 270 
 
 ■ Vaughan v. Vanderstegen (2 Drew, 363) 147 
 
 In re, Vaughan v. Thomas (33 Ch. D. 187; 35 W. E. 104) . . 33 
 Veal v. Veal (27 Beav. 303; 2 L. T. (N.S.) 228; 29 L. J. Ch. 321; 8 W. E. 
 
 2: 6 Jur. (N.S.) 527) 122, 123 
 
 Vernon v. Hallam (34 Ch. D. 748; 35 W. E. 156; 55 L. T. (N.S.) 676; 56 
 
 L J. Ch. 115) 90 
 
 Vowles, Re. O'Donoghue v. Vowles (23 Ch. D. 243) 323 
 
 W. 
 
 Wade v. Wilson (22 Ch. D. 235) 176 
 
 Wadsworth, In re. Ehodes v. Sugden (29 Ch. Div. 517) 195 
 
 Waite v. Bingley (21 Ch. D. 674) 47 
 
 Walhampton Estate, In re. (26 Ch. D. 391; 51 L. T. (N.S.) 280; 53 L. J. 
 
 Ch. 1000; 32 W. E. 874) 181 
 
 Walker, Ex parte, (Drew 508) 201 
 
 v. Hirsch (27 Ch. Div. 460; 54 L. J. Ch. 315; 32 W. E. 992) . 72, 74 
 
 Walkers Jeffrey (1 Hare, 341) 247 
 
 ■c. Mottram (19 Ch. Div. 355; 45 L. T. (N.S.) 659; 51 L. J. Ch. 
 
 108; 30 W. E. 165) 89 
 
 v. Smith (29 Beav. 394) 192 
 
 Wallace v. Greenwood (16 Ch. D. 362; 143 L. T. (N.S.) 720; 50 L. J. Ch. 
 
 289) 50. 199, 200 
 
 Wallet «. Datt (1 Ch. Ca. 276; 1 Dick. 8) 132 
 
40 TABLE OP CASES.' 
 
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 Wallis v. Smith (21 Ch. Div. 243; 47 L. T. (N.S.) 389; 31 W. E. 214; 52 
 
 L. J. Ch. 145) .39 
 
 Wallwyn v. Coutts (3 Mer. 707) 17 
 
 Walsh v. Lonsdale (21 Ch. Div. 9; 46 L. T. (N.S.) 858; 52 L. J. Ch. 2; 31 
 
 W. R. 109) 135, 136 
 
 Walters v. Walters (18 Ch. D. 182^ 159 
 
 v. Woodbridge (7 Ch. Div. 504; 38 L. T. (N.S.) 83; 47 L. J. Ch. 
 
 516; 26 W. E. 469) 120 
 
 Ward v. Byrne (5 M. & W. 548; 9 L. J. (N.S.) Exch. 14) 89 
 
 v. Turner (2 Ves. Sen. 443) ... 125 
 
 Warden v. Jones (2 De G. & J. 76) 102 
 
 Waring v. Waring (3 Ir. Ch. E. 331) 106 
 
 Warner v. Baynes (Ambler, 589) . . .46 
 
 v. Jacob (20 Ch. D. 220; 46 L. T. (N.S.) 656; 51 L. J. Ch. 642; 30 
 
 W. E. 731) 177 
 
 v. Willington (3 Drew. 523; 27 L. T. 194; 25 L. J. Ch. 662; 4 W. 
 
 E. 531; 2 Jur. (N.S.) 433) 98 
 
 Warren, In re. (52 L. J. Ch. 928; 49 L. T. (N.S.) 696) . 230 
 
 Watson v. Knight (19 Beav. 369) . 18 
 
 Watt v. Evans (4 Y. & C. Ex. 579) 101 
 
 Watts, In re. Cornford v. Elliott (29 Ch. Div. 947; 53 L. T. (N.S.) 426; 
 
 55 L. J. Ch. 332; 33 W. E. 885) 32 
 
 In re. Smith v. Watts (22 Ch. Div. 1) 121, 183 
 
 v. Symes (1 D. G. M. & G. 240) . ... ... 53 
 
 Weall ii. Eice (2 Buss. & My. 251) 255 
 
 Weaver, In re. (21 Ch. Div. 615; 48 L. T. (N.S.) 93; 31 W. E. 224) 115, 116 
 
 Webb v. Hewett (3 K. & J. 438) ... '261 
 
 v. Hughes (L. E. 10 Eq. 281) .... ... 246 
 
 ■u. Lord Shaftesbury (7 Ves. 480) 273 
 
 v. Smith (30 Ch. Div. 192; 53 L. T. (N.S.) 737; 55 L. J. Ch. 343) . 222 
 Webb's Policy, In re. (L. E. 2 Eq. 456; 14 L. T. (N.S.) 589; 12 Jur (N.S.) 
 
 595; 35 L. J. Ch. 850; 14 W. E. 857) 264 
 
 Webster v. British Empire Mutual Life Assurance Company (15 Ch. D. 1 69) 266 
 o. Cook (L. E. 7 Ch. 542; 36 L. J. Ch. 753; 16 L. T. 821; 15 W. 
 
 E. 1001) -132 
 
 Weir v. Barnett (3 Ex. D. 328) .... . . 207 
 
 Welby v. Welby (2 V. & B. 199) 273 
 
 Weldon v. De Bathe (14 Q. B. Div. 339) 146 
 
 v. Neal (32 W. E. 828) 146 
 
 v. Winslow (13 Q. B. Div. 784) 145, 146 
 
 Westbuxy-on-Severn Eural Sanitary Authority v. Meredith (30 Ch. Div. 
 
 387; 52 L. T. (N.S.) 839; 55 L. J. Ch. 744; 34 W, E. 217) 307 
 
 Westby v. Westby (2 D. & W. 503) 208 
 
 Western v. Macdermott (L. E. 1 Eq. 499; L. E. 2 Ch. 72; 15 L. T. (N.S.) 
 
 641; 36 L. J. Ch. 76; 15 W. E. 265) 140 
 
 Westhead r. Eiley (25 Ch. D. 413; 49 L. T. (N.S.) 776; 53 L. J. Ch. 1153; 
 
 32 W. R. 273) 283 
 
 West London Commercial Bank, Limited, v. Kitson (13 Q. B. Div. 360; 50 
 L. T. (N.S.) 656; 53 L. J. Q. B. 345; 32 W. E. 757) ... .61 
 
 Weston v. Levy (31 S. J. 364) 283 
 
 v. Savage (10 Ch. D. 736; 48 L. J. Ch. 239; 27 W..E. 654) . 246, 247 
 
 Whaley v. Bagenal (1 Bro. P. C. 345) 101 
 
 Wheat'ley v. Silkstone and Haigh Moor Coal Co. (29 Ch. D. 715; 52 L. T. 
 
 (N.S.) 798; 54 L. J. Ch. 778; 33 W. E. 797) 58 
 
 Wheeler v. Le Marchant (17 Ch. D. 675, 682; 50 L. J. Ch. 793; 44 L. J. 
 
 (N.S.) 632) 287 
 
 Wheelwright v. Walker (23 Ch. D. 752; 48 L. T. (N.S.) 70; 52 L. J. Ch. 
 274; 31 W. E. 363) 150, 152 
 
TABLE OF CASES. 41 
 
 [The paging refers to the [*] page?.] 
 
 PAGE 
 
 Whistler r. Webster (2 Ves. Jun. 367) 273 
 
 Whitaker, In re. Christian i. Whitaker (34 Ch. D. 227; 56 L. T. (N.S.) 
 
 34; 56 L. J. Ch. 251; 35 W. E. 217) . . 148 
 
 Whitecomb i>. Jacob (1 Salk. 160) 2, 3 
 
 White's Trusts, In re. (33 Ch. D. 449; 55 L. T. (N.S.) 162; 55 L. J. Ch. 
 
 701; 34 W. R. 771) •. . 28 
 
 White v. Carter (2 Eden, 366) 21 
 
 r. White (22 Ch. D. 555) 273 
 
 Whiteley, In re. Whiteley v. Learoyd (33 Ch. D. 347; 54 L. T. (N.S.) 
 491 (Bacon, V.-C); 55 L. J. Ch. 864; 34 W. R. 450 (Bacon, V.-C.)) . 105 
 
 Whitney r. Smith (L. R. 4 Ch. 513) 186, 187 
 
 Whittaker, In re. Whittaker v. Whittaker (21 Ch. D. 657; 46 L. T. (N.S.) 
 
 802; 51 L. J. Ch. 737; 30 W. R. 787) 9 
 
 v. Howe (3 Beav. 383) 89 
 
 Wigfield v. Potter (45 L. T. (N.S.) 612) 62 
 
 Wilcock, In re. (34 Ch. D. 508) 152 
 
 Wilkinson v. Joberns (L. R. 16 Eq. 14) 47 
 
 Willesford v. Watson (L. R. 8 Ch. 473; 121 W. R. 350; 28 L. T. (N.S.) 
 
 428; 42 L. J. Ch. 447) 83 
 
 Willett v. Chambers (Cowp. 814) ' 78 
 
 Williams v. Brisco (22 Ch. Div. 441; 48 L. T. (N.S.) 198; 31 W. R. 907) 97 
 Williams v. Games (L. R. 10 Ch. 204; 32 L. T. (N.S.) 414; 44 L. J. Ch. 
 
 245; 23 W. R. 779) 49 
 
 v. Kershaw (1 Keen, 274, n; 5 CI. & F. Ill, n) 225 
 
 v. Mercier (10 App. Cas. 1) . . 146 
 
 v. Williams (17 Ch. D. 437; 44 L. T. (N.S.) 573) 239 
 
 v. Williams (L. R. 2 Ch. 294; 36 L. J. Ch. 419; 16 L. T. (N.S.) 
 
 42; 15 W. R. 657) 207 
 
 Wilmott v. Barber (15 Ch. D. 96; 43 L. T. (N.S.) 95; 49 L. J. Ch. 792; 28 
 
 W. R. 911) '69 
 
 Willock v. Noble (L. R. 7 H. L. 580; 44 L. J. Ch. 345; 32 L. T. (N.S.) 419; 
 
 23 W. R. 809) .145 
 
 Wills v. Bourne (L. R. 16 Eq. 487; 43 L. J. Ch. 89) -. 225 
 
 v. Stradling (3 Ves. 381) .... 101 
 
 Wilson, Re. Alexander v. Calder (28 Ch. D. 457) 321 
 
 v. Coxwell (23 Ch. D. 764; 52 L. J. Ch. 975) 157, 159 
 
 v. Johnstone (L. R. 16 Eq. 606; 29 L. T. (N.S.) 93; 42 L. J. Ch. 
 
 668) ... 82, 84 
 
 v. Lord J. Townshend (2 Ves. Jun. 697) . . 273 
 
 v. Thornbury (10 Ch. D. 248) 272 
 
 v. West Hartlepool Rv. Co. (34 Beav. 187; 2 De G. J. & S. 475; 11 
 L. T. (N.S) 327, 692; 10 Jur. (N.S.) 1064; 11 Jur. (N.S.) 124; 13 
 
 W. R. 4, 361; 34 L.J. Ch. 241) 101 
 
 Wimbledon Local Board v. Croydon Rural Sanitary Authority (32 Ch. D. 421) 328 
 
 Winn v. Bull (7 Ch. D. 32; 95 
 
 Withy v. Cottle (T. R. 78) 246 
 
 Witt v. Amis (1 B. & S. 109) 125 
 
 Wollaston v. King (L. R. 8 Eq. 165) 273 
 
 Woodhouse v. Walker (5 Q. B. T>. 404; 42 L. T. (N.S.) 770; 49 L. J. Q. B. 
 
 609; 28 W. R. 765) 38 
 
 Woolridge v. Norris (L. R. 6 Eq. 410) 260 
 
 Woolley v. Coleman (21 Ch. D. 169) 176 
 
 Worraker v. Pryer (2 Ch. D. 109; 24 W. R. 269; 45 L. J. Ch. 273) . . 321 
 
 Worthington v. Morgan (16 Sim. 547; 18 L. J. Ch. 233) • . . 168 
 
 Wray v. Kemp (26 Ch. D. 169; 50 L. T. (N.S.) 552; 53 L. J. Ch. 1020; 32 
 
 W. R. 334) 311 
 
 Wright v. Howard (1 S. & S. 190) 246 
 
 v. Wright (2 J. & H. 647) 232 
 
42 TABLE OF OASES. 
 
 [The paging refers to the [*] pages. ] 
 
 PAGE 
 
 Wright's Trusts (25 Ch. D. 662) 156 
 
 Trustees and Marshall, In re (28 Ch. D. 93; 51 L. T. (N.S.) 781; 
 
 54 L. J. Ch. 60; 33 W. B. 304) 93 
 
 Wynn Hall Coal Co., In re. North & South Wales Bank, Ex parte (L. E. 
 10 Eq. 515) 55 
 
 Y. 
 
 Yorkshire Banking Co. v. Mullen (35 Ch. D. 125) . . 284 
 
 York Union Banking Co. v. Astley (11 Ch. D. 205; 27 W. E. 704) .... 177 
 Young, In re. (19 Ch. Div. 124; 45 L. T. (N.S.) 493; 51 L. J. Ch. 141; 30 
 
 W. E. 330) 86 
 
 Ex parte, In re. Kitchen (17 Ch. D. 668; 52 L. J. Ch. 824; 29 W. 
 
 R. dig. 85) 261 
 
 In re. Trye v. Sullivan (28 Ch. D. 705) 145 
 
 Youngs, In re. Daggett r. Eevett (30 Ch. D. 421) 322 
 
 In re. Doggett v. Eevatt 31 Ch. D. 239; 53 L. T. (N.S.) 682; 55 
 L. J. Ch. 371; 34 W. E. 290) 311 
 
TABLE OF STATUTES. 
 
 [The paging refers to the [*] pages.] 
 
 PAGE. 
 13 Eliz. c. 5 (Fraudulent Convey- 
 ances) 219, 220 
 
 43 Eliz. c. 4 (Charities) 31 
 
 12 Car. II. c. 24 277, 278 
 
 29 Car. II. c. 3 (Statutes of Frauds 
 12, 70, 95, 97, 98, 99, 100, 101, 102, 
 137, 157, 249 
 
 4 Geo. II. c. 28 42 
 
 9 Geo. II. u. 36 (The Mortmain 
 
 Act) 30, 31, 32 
 
 43 Geo. III. c. 108 (Church Build- 
 ing Act) 33 
 
 52 Geo. III. c. 101 (Romilly's Act) 33 
 
 4 Geo. IV. c. 76 278 
 
 1 Will. I. V. c. 46 (Illusory Ap- 
 pointments Act) 229 
 
 3&4WU1. IV. e. 27 (Statute of 
 Limitations) .... 46, 128, 157 
 
 -■ c. 74 (Fines and 
 
 Recoveries Act) 70, 200 
 
 6 & 7 Will. IV. c. 85 74 
 
 (Marriage 
 
 Act) . . . 74 
 
 1 Viet. c. 26 ( Wills Act) . . . 212, 277 
 c. 28 128 
 
 2 & 3 Vict. c. 54 277 
 
 4 & 5 Vict. c. 35 46 
 
 5 & 6 Vict. c. 45 (Copyright Act, 
 1842) 330 
 
 7 & 8 Vict. c. 18 (Lands Clauses 
 Consolidation Act, 1845) . 153, 201 
 
 8 & 9 Vict. c. 15 (Auction Duties 
 Repeal) 101 
 
 , c. 106 (Real Property 
 
 Amendment Act) 137 
 
 10 & 11 Vict. c. 96 (Trustee Relief 
 Act, 1847) 264, 265, 306 
 
 13 & 14 Vict. c. 60 (The Trustee 
 Act, 1850) 49 
 
 15 & 16 Vict. c. 86 (Chancery Pro- 
 cedure Act) 175, 290 
 
 16 & 17 Vict. c. 137 (Charitable 
 Trusts Act, 1853) 33 
 
 17 & 18 Vict. c. 36 (Bills of Sale 
 Act, 1854) 174 
 
 , c. 90 . . . . 132 
 
 , c. 113 ('Locke Xing' 's 
 
 Act) 214, 215, 217, 243 
 
 PAGE. 
 
 .18 & 19 Vict. c. 43 (Infants' Settle- 
 ment Act) 278 
 
 c. 124 33 
 
 19 & 20 Vict. c. 97 (Mercantile Law 
 
 Amendment Act) 260 
 
 ' , c. 120 . . 50, 199, 200 
 
 2L&22 Vict. c. 94 46 
 
 22 & 23 Vict. c. 35 (Lord Si. 
 Leonards 1 Act) .... 104, 105, 106 
 
 23 & 24 Vict. c. 38 106 
 
 ,c. 126 (Common Law 
 
 Procedure Act, 1860) -42 
 
 ,c. 127 (The Solicitors' 
 
 Act, 1860) 193, 194 
 
 -, c. 136 33 
 
 -, c. 145 106 
 
 25 & 26 Vict. c. 89 (Companies' 
 Act, 1862) . . 54, 60, 63, 64, 206 
 112 33 
 
 27 & 28 Vict. c. 112 (The Judg- 
 ment Act) 281, 284 
 
 27 & 28 Vict. c. 114 (Improvement 
 
 of Land Act, 1864) 154 
 
 28 & 29 Vict. u. 86 (Bovill's Act) 
 
 75, 76, 77 
 
 , c. 96 (Bills of Sale 
 
 Act, 1866N ..:..... .174 
 
 30 & 31 Vict. c. 59 (Statutory Re- 
 vision Act) 42 
 
 , c. 69 Locke Ring's 
 
 Act Amendment Act) 214, 215, 216, 
 217. 243 
 
 , c. 132 106 
 
 , c. 144 (Policies of In- 
 surance Act, 1867) 266 
 
 31 Vict. c. 4 (Sales of Reversion Act) 
 
 132 133 
 31 & 32 Vict. c. 40 (Partition Act.', 
 1868) . . . 46, 47, 48, 49, 50, 199 
 , c. 116 80 
 
 32 & 33 Vict. c. 71 (Bankruptcy 
 Act, 1869) 147, 221 
 
 -, c. 46 (Hinde Pal- 
 mer's Act) 157 
 
 , c. 62 (Debtors' Act, 
 
 1869) 7, 146 
 
 , c. 110 33 
 
 33 & 34 Vict. c. 14 11 
 
 (43) 
 
44 
 
 TABLE OF STATUTES. 
 
 [The paging refers to the £*] pages. ] 
 
 PAGE. 
 
 33 & 34 Vict. c. 44 (Stamp Act, 
 1870J .... 137 
 
 — , c. 61 268 
 
 — ' , c. 93 (Married Wo- 
 men's Property Act, 1870) 144, 146, 
 147, 148 
 
 34 & 35 Vict. c. 47 . . . 106 
 , c. 58 268 
 
 35 & 36 Vict. c. 41 , . '. . . 268, 269 
 
 36 & 37 Vict. c. 12 (Infants' Cus- 
 tody Act, 1873) . . .277 
 
 , c. 66, s. 4 (The Ju- 
 dicature Act, 1873) 313 
 
 • , s. 25, sub-s. 2 129 
 
 , s. 25, sub-s. 3 38 
 
 36 & 37 Vict. c. 12, s. 25, sub-s. 4 53 
 
 ,s. 25, sub-s. 6 
 
 10, 265, 266 
 
 c. 66, s. 25, sub-s. 7 246 
 
 , s. 25 sub-s. 8 
 
 282, 326, 327 
 -, s. 25, sub-s 
 
 278 
 
 -, s. 25, sub-s. 
 
 . 39, 53, 161 
 
 -, s. 34 . . 85 
 
 s. 87 ... 312 
 
 10 
 
 11 
 
 37 & 38 Vict. c. 37 (Powers Law 
 Amendment Act) 229 
 
 , c. 57 (Real Pro- 
 perty Limitation Act, 1874) 126, 127. 
 128, 129 
 , u. 62 {Infants' Be- 
 lief Act) . . 134 
 
 — . c. 78 (The Vendor 
 
 and Purchaser Act,. 1874J 91, 92, 93, 
 
 239 
 
 38 & 39 Vict. c. 77 (Judicature Act, 
 1875) . . . 158 
 
 39 & 40 Vict. c. 17 (Partition Act, 
 1876) 46, 47, 50 
 
 , PAGE. 
 
 40 & 41 Vict. c. 18 ('Die Settled Es- 
 tates Act, 1877) . . 37, 153, 155, 234 
 c. 34 215, 217, 218, 243 
 
 41 & 42 Vict. c. 31 (Bills of Sale 
 Act, 1878) . 174 
 
 43 & 44 Vict. c. 47 (Ground Game 
 Act, 1880) 136 
 
 44 & 45 Vict. c. 12 (The Cus- 
 toms and Inland Revenue Act, 
 1881) . . . . 124 
 
 , c. 41 (The Convey- 
 ancing Act, 1881) 12, 37, 43, 93, 
 137, 163, 175, 176, 177, 178, 179, 229, 
 230, 234, 283, 284, 314 
 
 45 & 46 Vict. c. 38 (Settled Land 
 Act, 1882) 37, 44, 149, 150, 151, 152, 
 
 153, 154, 155, 156, 234 
 
 , u. 39 (Conveyancing 
 
 Act, 1882) . . . 137, 229, 240, 241 
 
 , c. 43 (Bills of Sale 
 
 Act, 1878, Amendment Act, 1882) 174 
 
 , c. 50 (Municipal Cor- 
 poration Act) . '..... 11 
 
 , c. 51 (Government 
 
 Annuities Act) .... 11 
 
 , c. 61 (Bills of Ex- 
 change Act, 1882) 124 
 
 45 & 46 Vict. c. 75 (Married Wo- 
 men's Property Act, 18821 11, 142, 
 
 143, 144, 145, 146, 147, 148, 224, 
 232, 233, 250 
 
 46 & 47 Vict. c. 52 (Bankruptcy 
 Act, 1883) . ... 11, 18, 158, 221 
 
 , c. 57 (Patents, De- 
 signs and Trade Marks Act, 
 1883) 329 
 
 47 & 48 Vict. c. 18 (Settled Land 
 Act, 1884) 151, 152, 153 
 
 49 & 50 Vict. c. 27 (Guardianship 
 of Infants Act, 1886) . . 277, 278, 
 279, 280 
 
(45) 
 
 LEADING CASES [ * i ] 
 
 IN 
 
 MODERN EQUITY. 
 
 Following Trust Fund. 
 
 In re HALLETT, KNATCHBTXLL v. HALLBTT. 
 (13 Ch. Div. 693.) 
 Property held by a person in a -fiduciary rela- Principle. 
 tion may he followed as long as it can be traced. 1 
 When a person holding money in a fiduciary 
 character mixes it with his own, 2 and draws out 
 of the mixed fund, the Court presumes that he is 
 first drawing out of his own money. 
 
 A solicitor had bonds of the value between Summary of 
 £2100 and £2200 belonging to a client in his pos- facts - 
 sion. He improperly sold them and paid the pro- 
 
 1 This is constantly done by our courts for the protection of the 
 the cestui que trust (a). 
 
 ' This rule applies to purchases by an agent appointed to buy (6), 
 an executor (e), the committee of a lunatic (d), a guardian (e), a 
 trustee (/), also trustees of a corporation (ff), a partner (h), a 
 mortgagor (&), or a husband buying with funds of the wife's sep- 
 arate estate (m). 
 
 The rule applies to assignments, to deposits in bank and all 
 cases where the property of the beneficiary can be traced in spite 
 o f any transmutation of form or change of possession. Milli- 
 gan's App., 1 Norris, 389, and Story's Eq., Sec. 1258 & Sec. 1359. 
 
 2 In this case a resulting trust arises for the benefit of the cestui _ 
 
 (a) Perry on Trusts, S. 127. 
 
 (b) Eshleman v. Lewis, 13 Wright (Pa.), 419. 
 
 (c) Claussen v. La Franz, 1 Clarke, 226. 
 
 (d) Eeid v. Fitch, 11 Barb. S. C. 399. 
 
 (e) Oliver v. Piatt, 3 Howard, 401. 
 (/)Harrisburg Bank v. Tyler, 3 "W. & S. 373. 
 (g) Methodist Church v. Wood, 5 Hamm. 283. 
 (h) Pugh v. Currie, 5 Ala. 446. 
 
 (it) McLarren v. Brewer, 51 Maine, 402. 
 
 (fi) Eesor v. Resor, 9 Ind. 347, and Baron v. Baron, 24 Vt, 375. 
 
46 
 
 FOLLOWING TRUST FUNDS. 
 
 Modern 
 doctrine of 
 equity. 
 
 [*2] 
 
 ceeds to his general balance at his bankers, and 
 drew cheques for his own purposes. He afterwards 
 paid other moneys of his own into the account, and 
 at his death there was over £3000 standing to his 
 credit. It was held by the Court of Appeal that the 
 client had a right " to follow the money," and was 
 entitled to a charge on the £3000. 
 
 In this extremely important case, the report of which 
 extends to considerably over fifty pages, Jessel, M.R., 
 stated in a most elaborate manner, and with great dis- 
 tinctness, " the modern doctrine of equity," -^ with re- 
 gard to property disposed of by persons in a fiduciary 
 position, which was, as he said, a very clear and well- 
 established doctrine, despite the previous decision in 
 Eoc parte Dale & Co. (11 Ch. D. 772). In that case a 
 banking company, who had been employed by Dale & 
 C9. as agents to collect money due on "average orders," 
 and' remit it to their employers, received the money arid 
 placed it with the other cash in the bank, and then in- 
 formed their employers that it had been remitted. Be- 
 fore the money was actually remitted, the bank went 
 into liquidation. The liquidator was willing to pay the 
 amount of a specific cheque for £170, which remained 
 in the bank at the time of the liquidation, and the 
 question was as to a sum of money which had been 
 mixed up with the general cash of the bank. Fry, J., 
 came reluctantly to the conclusion that he was bound 
 by a long series of decisions, commencing with White- 
 comb v. Jacob (1 Salk. 160), to which we shall pres- 
 ently refer more at length, and by several dicta scattered 
 through subsequent decisions on similar subjects, to de- 
 cide against the claim of Dale & Co. All these cases were 
 carefully reviewed by Jessel, M.E., who as the result of 
 the consideration, declared in his judgment that the prin- 
 ciple laid down in the decision in Ex parte Dale & Co. 
 could not now be considered as law. The general rule 
 with regard to following trust property has been fre- 
 quently understood as if limited to the case of trustees 
 in the ordinary acceptation of the term, in. the propo- 
 sition that the cestui que trust can follow the trust prop- 
 eity " so long as the metamorphoses can be traced " 
 
 que trust who -will take the entire fund unless the trustee estab- 
 lishes how much money of the mixed fund was his and how 
 much belonged to the cestui que. The rule on the subject of con- 
 fusion of goods regulates this. Hill on Trustees, 148, School v. 
 Kirwin, 25 111. 73; Thompson's App., 10 Harris (Pa.), 16. 
 
FOLLOWING TRUST FUNDS. 47 
 
 (see the authorities on this subject collected in Lewin 
 on Trusts, 8th ed. 892. See Ex parte Cooke, In re Law as 
 Strachan (4 Ch. Div. 123), following Taylor v. Plumer ^tled by 
 (3 M. & S. 562). The law, however, as it may be con- jjatiett 
 sidered to be settled by the judgment in In re Hallett 
 requires a much more elaborate statement and falls 
 within the following propositions : — 
 
 1. Where property has been rightfully disposed of by 
 a person in a fiduciary relation, the cestui que trust 
 (using that term in the broad sense, corresponding to 
 the enlargement of the term trustee, which we shall 
 presently notice), "may take the proceeds of the sale if 
 he can identify them. 3 
 
 2. If the sale was wrongful, the cestui que trust can 
 still take the proceeds of the sale, in a sense adopting 
 the sale for the purpose of taking the proceeds, if he 
 can identify them. 
 
 There is no distinction, therefore, between a rightful 
 and a wrongful disposition of the property, so far as 
 regards the right of the beneficial owner to follow the 
 proceeds. * 
 
 Next had to be considered the case where the pro- 
 ceeds of the sale cannot be identified in the form of 
 money. This may happen in two ways : (a.) The 
 trustee may have bought land, or purchased chattels 
 exclusively with trust money, or (b. ) the proceeds of 
 the sale may have beeD invested by the trustee, or per- 
 son in a fiduciary relation, along with moneys of his 
 own. Two further cases thus arise : — 
 
 3. Where the purchase is made exclusively out of . 
 trust money. In this case the beneficial owner is en- 
 titled to elect either to take the -fc property purchased, r -£ 3 ] 
 or to hold it as security for the amount of the trust 
 money laid out in the purchase, or as it is generally ex- 
 pressed, he is entitled at his election, either to take the 
 property or to have a charge on it for the amount of 
 
 the trust money. 
 
 s And a purchaser from a trustee for sale must see that the pur- 
 chase money is properly applied ; this arises under the general 
 doctrine of notice. 
 
 4 If a trust property is sold, it must he for the benefit of the 
 cestui que ti-usfand unless it inures to his advantage it is a fraud 
 upon the trust and any person who takes the property where 
 there has been a fraud upon the cestui que trust having received 
 notice of the trust cannot hold it as being discharged from the 
 right of the cestui que trust. 
 
 If, however, the trust is of a general or uncertain nature, the 
 purchaser need not see to the application of the purchase money. 
 Clyde v. Simpson, 4 Ohio, N. S. 445; Elliott v. Merryjnan, 1 Lead. 
 Cas. Eq. 69 and notes. 
 
i8 FOLLOWING TRUST FUNDS. 
 
 4. Where the trust money has been mixed with the 
 trustee's own money. 5 In this case the beneficial owner 
 is entitled to a charge on the property purchased, for 
 the amount of the trust money laid out in the purchase, 
 and that charge is quite independent of the amount 
 laid out by the trustee. 6 
 
 The Master of the Rolls then pointed out, that there 
 was no distinction between an express trustee, or an 
 agent, or a bailee, or a collector of rents, or any body 
 else in a fiduciary position. 7 " The moment you estab- 
 lish the fiduciary relation, the modern rules of equity 
 as regards following trust money apply." " 
 
 5. The fifth case is where the person in a fiduciary 
 relation is practically a pure bailee, where the money 
 instead of being invested in the purchase of land or 
 goods, is simply mixed with other moneys of the trus- 
 tee (including under that term every person in a fidu- 
 ciary relation). "Does it," asked Jessel; M.B., "make 
 any difference according to the modern doctrine of 
 Equity ? I say none. It would be very remarkable if 
 it .were to do so. Supposing the trust money was one 
 thousand sovereigns and the trustee put them into a 
 bag and by mistake, or accident, or otherwise, dropped 
 a sovereign of his own into the bag, could anybody 
 suppose that a judge in Equity would find any diffi- 
 culty in saying that the cestui que trust has a right to 
 take a thousand sovereigns out of that bag? I do not 
 like to call it a charge of 1000 sovereigns on the 1001 
 sovereigns, but this is the effect of it." The same prin- 
 ciple, he went on to say, would apply if the trustee, in- 
 stead of putting the money into a bag, carried it to his 
 bankers, lent it without security, lent it on a promis- 
 sory note or on a bond. In these cases the cestui que 
 trust would have a charge for the amount of the trust 
 money, on the balance in the bank, on the promissory 
 note, or od the bond. " There is no difficulty then in 
 following out the rules of Equity, and in deciding that 
 in the case of a mere bailee you can follow the money." 8 
 
 5 Russell v. Jackson, 10 Hare, 209; Kip r. Bank of New York, 
 10 Johns. 65; Commonwealth v. McAlister, 4 Casey, 480; Mc- 
 Larren v. Brewer, 51 Maine, 402. 
 
 6 In America the general rule is that there is a resulting trust 
 in favor of the cestui que trust. Wallace v. McCullough, 1 Rich. 
 Eq. 426; Day v. Roth, 18 N. Y. 456; "Wallace r. DufrieM, 2 S. & 
 R. 530; Bisphani's Eq. 4th Ed. g 86; Hill on Trustees, 4th Am. 
 Ed. 148 note. 
 
 ' See eases cited under note number one. 
 
 8 See preface to this work by the author. 
 
 9 The same rules that exist between the trustee and the cestui 
 que trust apply to all persons who occupy a fiduciary or quasi-fi- 
 
FOLLOWING TRUST FUMDS. 49 
 
 The subsequent portion of the judgment of Jessel,, Review of 
 M.R., is occupied with a review of the authorities be- authori- 
 ginning with the old dictum in Whitecomb v. Jacob, ties - 
 decided in the reign of Queen Anne (1 Salk. 160), to 
 which we previously referred, and ending with Pennell 
 v. Deffell (4 T>. M. & G. 772), and Frith v. Cartland 
 (2 H. & M. 417). In Whitecomb v. Jacob, the judge, 
 speaking of the rights of one who employs a factor and 
 entrusts him with the disposal of merchandise, lays 
 down two propositions, first, that there is an equity to 
 follow the proceeds attaching to the case of a factor, as 
 well as to that of a trustee, and second, employing a 
 phrase which has passed into considerable currency, 
 " but if the factor have money, it shall be looked upon 
 as the factor's estate; for, in regard that 'money has 
 no ear-mark,' Equity cannot follow, that in behalf of 
 him that employed -Jf the factor." With regard to this [ -fa 4 ] 
 statement of the law, Jessel, M.R., in the leading case 
 said that the first proposition was true, but that the 
 second, at any rate at the present day, could not be 
 supported, and that the authorities established that, 
 " there is no distinction and never was a distinction be- 
 tween a person occupying one fiduciary position or an- 
 other fiduciary position, as to the right of the beneficial 
 owner to follow the trust fund." 
 
 Thesiger, L. J., in delivering judgment in the leading 
 case, after alluding to the fact that though there were* 
 certain dicta of an opposite character to be found here 
 and there in the books, a reference to the case of Ex- 
 parte Cooke (4 Ch. Div. 123) would shew that the prin- 
 ciples which had been applied for some time in equity 
 had been made perfectly plain, even to the mind of a> 
 common law judge, summed up the law on this subject 
 in the form of a " very simple," though at the same time- 
 " very wide and general proposition " ; that wherever a 
 specific chattel is intrusted by one man to another,, 
 either for the purposes of safe custody, or for the pur- 
 pose of being disposed of for the benefit of the person. 
 
 duciary relation to each other such as executors or administra- 
 tors, agents (a), bailees, religious advisers, husband and wife (b), 
 directors of a corporation. But a sale of stock by a stockholder 
 to a director is not within the rule as applicable to dealings be- 
 tween persons in confidential relations. Carpenter v. Danforth, 
 52 Barb. 581; Spering's Appeal, 21 P. F. Sm. 11 ; Watt's Appeal, 
 28 Id. 392. 
 
 (a.) When the relation of principal and agent has terminated 
 and a general settlement is made actual fraud must be proved in 
 order to disturb it. Courtright v. Barnes, 2 McCrary, 532. 
 
 (6) Darlington's App. 5 Norris, 512. 
 
 4 MODERN EQUITY. 
 
50 
 
 FOLLOWING TRUST FUNDS. 
 
 Contest 
 between 
 cestuis que 
 trust. 
 
 Thomdike 
 v. Sunt. 
 
 [*5] 
 
 intrusting the chattel; then either the chattel itself or 
 the proceeds of the chattel, whether the chattel has 
 been rightfully or wrongfully disposed of, may be fol- 
 lowed at any time, although either the chattel itself, or 
 the money constituting the proceeds of that chattel may 
 have been mixed and confounded in a mass of the like 
 material. 
 
 A further point decided in In re Hallett (13 Ch. 
 Div. 696) by the Court of first instance, was that where 
 moneys belonging to two cestuis que trust have been 
 paid by a trustee into his own account at his bankers, 
 and there is a contest as to priority between the cestuis 
 que trust, the rule in Claytpn's case (1 Mer. 572) ap- 
 plies, and accordingly the sum first paid in is held to 
 have been first drawn out. 
 
 In the well-known case of Thomdike v. Hunt (3 De 
 G. & J. 563), Hunt was trustee of two different trusts. • 
 He applied funds of the first trust to his own use, and 
 then, procuring a power of attorney from his co-trustee 
 in the second trust, he replaced the deficiency in the 
 first trust fund by a transfer into that fund of a part of 
 the funds of the second trust. A suit was brought in 
 respect of breaches of trust in the first trust, and the 
 trustees of that trust transferred the sum thus replaced 
 into Court. It was held that the transfer into Court 
 was a transfer for valuable consideration without no- 
 tice, and that consequently the cestuis que trust under 
 the second trust could not follow the trust fund. 
 "There was," said Knight Bruce, L.J., "a debt due 
 from the trustees; they were called upon to pay it, and 
 if it had not been paid, they would have been liable to 
 execution. If the fund had not been transferred into 
 Court, the property might have been obtained from 
 them by other means." 10 
 
 The principle of Thomdike v. Hunt (ubi supra) was 
 lately followed by the Court of Appeal in Taylor v. 
 Blakelock (32 Ch. D. 560), which was described in the 
 judgment of the Court of first instance as a " case of 
 considerable nicety, and one of those painful cases in 
 which -fa as between two innocent persons, a loss hav- 
 ing been sustained, the Court had to decide upon whom 
 
 10 Between equal equities the law will prevail, for if two per- 
 sons have each an equally good equitable right and but one of 
 them,has the legal title to the subject in controversy, Equity 
 will not interfere, and a court of law will give it to the holder of 
 the legal title. A purchaser for value without notice of any prior 
 equitable right or title, obtains the legal estate at the time of 
 his purchase and he will be entitled to priority both in equity 
 and at law. See note to Basset v. Nosworthy, 2 Lead. Cas. Eq. 5. 
 
FOLLOWING TRUST FUNDS. . 51 
 
 that loss should fall." One Carter was a co-trustee 
 with Taylor of a will, and also co- trustee with Blake - 
 lock of a settlement. He misappropriated a considera- 
 ble sum of the settlement fund, and then applied an 
 equal portion of Metropolitan Stock belonging to the 
 will fund in the purchase of Caledonian Stock in the 
 joint names of himself and Blakelock. Carter died in- 
 solvent, and. Taylor then commenced an action against 
 . Blakelock to have the Caledonian Stock transferred to 
 him. There was no dispute of fact. Both parties were 
 quite innocent of Carter's fraud, and neither Blakelock 
 nor his cestuis que trust had any notice that the stock 
 was purchased with part of the will fund. The Court 
 of Appeal decided that Taylor had no right to " follow 
 the trust fund," n as Blakelock must be treated as a 
 purchaser for value with the legal right. " The term 
 purchaser for value," said Bowen, L.J., "is a well- 
 known expression to the law. By the. common law of 
 this country the payment of an existing debt is a pay- 
 ment for valuable consideration. 12 That was always 
 the common law before the reign of Queen Elizabeth 
 as well as since. Commercial transactions are based 
 upon that very idea. It is one of the elementary legal 
 principles, as it seems to me, which belong to every 
 civilised country; and many of the commercial instru- 
 ments which the law recognises have no other consider- 
 tion whatever than a pre-existing debt." It was con- 
 tended that the stock in question was a chose in action, 
 and that consequently the rule that one who takes an 
 assignment of a chose in action takes it gubject to all 
 existing equities applied. 13 On this subject, Cotton, 
 L. J., observed, " that the rule only applied to choses 
 in action not transferable at law; " that it was here nn- 
 
 11 The cestui que trust under the settlement las just as strong 
 an equity to retain the fund as the beneficiaries under the will 
 had to follow it and as the trustee under the settlement had the 
 legal title this is enough to create a preference in his favor. See 
 Snell's Eq. 18, 19. 
 
 12 As to what constitutes a valuable consideration see Russell 
 i: Buch, 11 Vt. 166: Bailey v. Adams, 10 N. H. 162; Sidw'ell v. 
 Evans, 1 P. & W. 383; Hare on Contracts, 206; Wimer v. Worth, 
 104; Pa. 317; 100 U. S. 246; E. E. Co. v. Nat. Bank, 102 U. S. 
 29, 37 Ills. 333. 
 
 - 13 As to whether an assignee of a chose in action takes it subject 
 to the equities existing between all the original parties or only 
 subject to the equities of the party bound by its obligation, i.e., 
 the debtor, and not to those of prior assignments, there are dif- 
 ferences of opinions. See Bush r. Lathrop, 22 N. Y. 535; Row 
 «. Dawson, 3 Lead. Cas. Eq. 372; contra Taylor v. Gitt, 10 Barr. 
 428; Murry v. Lylburn, 2 Johns. Ch. (N. Y.) 441. 
 
 14 At common law there could be no valid sale unless the thing 
 
52 
 
 FOLLOWING TRUST FUNDS. 
 
 necessary to decide the question, and he declined to 
 decide it, whether the stock was achose in action within 
 the meaning of the rule, because here Blakeloek was 
 the only person who had the legal title." 
 Trust for a The fact however that a fund is impressed with a 
 fraudulent trust and clearly " ear-marked " will be of no avail if 
 purpose. the trust in question is for a fraudulent purpose. 15 In 
 re Great Berlin Steamboat Company (26 Ch. Div. 616). 
 In that case Boden placed money to the credit of the 
 company at their bankers, for the purpose of enabling 
 them to have a fictitious balance of a creditable amount, 
 in case inquiries were made. It was agreed that the 
 money was not to be used by the company for general 
 purposes, but that they were to be trustees for Boden. 
 Part of the money was drawn out with Boden's consent, 
 and when the company went into liquidation there was 
 still a balance. Cotton, L.J., in delivering judgment, 
 said: — "I think it the just result of the evidence that 
 the balance now in dispute is ear- marked as part of the 
 money which the appellant advanced. Then the appel- 
 lant says that the company were to hold this sum in 
 trust for him, and the resolution no doubt says that 
 they shall. But that declaration of trust is coupled 
 with a statement that the advance is made in order that 
 the company may appear to have a creditable balance 
 [ -^ 6 ] at their bankers if -^ inquiries are made — a purpose 
 
 which is admitted to be fraudulent." Boden's claim 
 for payment to him of the balance in question was ac- 
 cordingly disallowed. 
 
 In Collins v. Stimson (11 Q. B. D. 142) Wilson paid 
 into the bank a sum of money which he had obtained 
 by a sale of his goods in fraud of his creditors, and 
 shortly afterwards became a bankrupt. He then en- 
 tered into a contract in an assumed name for the pur- 
 chase of land, and paid a deposit to the defendant, the 
 auctioneer, by a cheque on the bank. Neither the ven- 
 dor nor the defendant had any notice of the fraud. 
 The judgment In re Hallett (ubi supra) was regarded 
 as conclusive on the law, and it was held that the money 
 was sufficiently " ear-marked," but that the bankrupt's 
 trustee was not entitled to recover, as the money had 
 been received bond fide by the defendant. 16 See also 
 
 to be sold -was in rerum milura, and under the immediate control 
 of the vendor. Coke Litt. 214 a; Cassedy v. Jackson, 45 Miss. 402. 
 
 15 Equity will not uphold a trust for the purposes of violating 
 the law. Bispham's Eq. 4th Ed. Sec. 56; Baker v. Williamson, 
 4 Barr. 456; Perry on Trusts, Sec. 21. 
 
 16 A bond fide purchaser, without notice, for a valuable consid- 
 eration, will be protected even though he claim under a grantor 
 
FOLLOWING TRUST FUNDS. 53 
 
 Neva Zealand and Australian Land Co. v. Watson (7 
 Q. B. Div. 374, 383). 
 
 In Gilbert v. Gonard (33 W. E. 302; 54 L. J. Ch. Money 
 439) the plaintiff had lent the defendant a sum of advanced' I 
 money for the express purpose of its being specially for s P eci fi c 
 and exclusively applied towards making up the pur- 'P ax V oae - 
 chase-money for a manufactory, 17 and the defendant 
 paid the money into his bank, and applied it for his 
 own purposes, and on his subsequently becoming bank- 
 rupt, it was held that the plaintiff, who had traced so 
 much of the moneys as remained in the bank was en- 
 titled to recover from the trustee in bankruptcy. The 
 ground on which this decision was based was that there 
 was a duty cast upon and undertaken by the person re- 
 ceiving the loan to apply it in a particular way. " I 
 do not," said North, J., "know any case, and no case 
 has been referred to precisely like this, a duty under- 
 taken by a person receiving the loan to apply it in a 
 particular way; and in deciding as I do, on what seems 
 to me a new combination of facts, I consider I am not 
 in the slightest degree extending the law — in fact, I 
 have no power to do so, and I disdain doing it. I am 
 merely applying well known principles of law to the 
 combination of facts with which I have to deal." 
 
 In considering the second great question involved in Trustee 
 the leading case, viz. whether Hallett's drawings were drawing out 
 to be considered as coming first out of his own moneys monev - 
 or first out of the trust funds, the Court laid down the 
 broad principle expressed in the maxim allegans suam 
 turpitudinem non est audiendus, which was, they said, 
 thoroughly established in the law of all civilized coun- 
 tries, that when a man does an act which may be right- 
 fully performed, he cannot say that that act was inten- 
 tionally and in fact done wrongly. This they illus- 
 trated by the cases, that a man who has a right of 
 entry cannot say that he is a trespasser — one who sells 
 as agent cannot deny agency — a lessor professing to 
 grant a lease under a power cannot say that he has no 
 such power. The j udgment then proceeded as follows : — 
 " When we come to apply that principle to the case 
 
 •who has obtained the property by fraud, which would as between 
 the original parties, render its acquisition invalid and a trans- 
 action tainted with fraud is not absolutely void but only voida- 
 ble. See Lindsley v. Ferguson, 49 N. Y. 625; Negley v. Lind- 
 say, 17 P. F. Sm. 228. 
 
 17 Contracts to build. Stuyvesant v. The Mayor, 11 Paige, 
 414, to compromise a suit, to receive certain goods in payment of 
 a debt (Very v. Levy, 13 How. 346) may be decreed to be specifi- 
 cally performed. 
 
54 FOLLOWING TRUST FUNDS. 
 
 of a trustee who has blended trust moneys with his own 
 it seems to me perfectly plain that he cannot be heard 
 to say that he took away the trust money when he 
 [ -fa 7 ] *fc had a right to take away his own money. The sim- 
 plest case put is the mingling of trust moneys in a bag 
 with money of the trustee's own. Suppose he has a 
 hundred sovereigns in a bag, and he adds to them 
 another hundred sovereigns of his own, so that they 
 are commingled in such a way that they cannot be dis- 
 tinguished, and the next day he draws out for his own 
 purposes £100, is it tolerable for anybody to allege that 
 what he drew out was the first £100, the trust money 
 and that he misappropriated it, and left his own £100 
 in the bag. It is obvious he must have taken away 
 that which he had a right to take away, his own £100. 
 What difference does it make if, instead of being in a 
 bag, he deposits it with his banker, and then pays in 
 other money of his own, and draws out some money for 
 his own purposes ? Could he say. that he had actually 
 drawn out anything but his own money. His money 
 was there and he had a right to draw it out, and why 
 should the natural act of simply drawing out the.money 
 be attributed to anything except to his ownership of 
 money which was at his bankers." 1S 
 Debtors The fourth section of the Debtors Act, 1869, 32 & 33 
 
 Acta. Vict. cap. 62, which abolishes arrest or imprisonment 
 
 for making default in payment of a sum of money, con- 
 tains six exceptions, i.e. cases where the power of the 
 Court still continues, among which there are (3) De- 
 fault by a trustee or person acting in a fiduciary cap- 
 acity, and ordered to pay by a Court of Equity any 
 sum in his possession, or under his control, while 
 by sect. 1 of the Debtors Act, 1878, 41 & 42 Vict, 
 cap. 54, a discretion is conferred upon the Court in 
 cases of this description. " See Middleton v. Chi- 
 
 19 A trustee is not liable for the failure of a bank where the 
 trust funds have been deposited if he has allowed them to remain 
 there only a reasonable time, Swinfen v. Id. (No. 5) 29 Beav. 211. 
 
 The trustee should make the deposit in the name of the trust 
 estate and not to his own credit, and if he mixes the funds with 
 his own he will be liable. McAllister v. Comm., 4 Casey, 486 ; 
 Kip v. The Bank of New York, 10 Johns. 65; De Jarnette v. Id., 
 41 Ala. 709; School, &c, «-. Kirwin, 25111. 73; Bispham's Eq. 4th 
 Ed. See. 139; Luken's Appeal, 7 W. & S. 48; Royer's Appeal, 1 
 Jones (Pa.), 36. 
 
 19 Where proper cause is shown the Court will remove a trus- 
 tee. Hill on Trustees, 4th Am. Ed. 298. He is bound to render 
 proper accounts when summoned to do so, he is also entitled to 
 come into Court for advice and assistance. Dill v. Wisner, 88 
 N.Y. 160. 
 
DECLARATION OF TRUST. 55 
 
 chest&r (L. R. 6 Ch. 156) ; Evans v. Bear (L. R. 10 Ch. 
 76); Marris v. Ingram (13 Ch. D. 338); Esdaile v. -Fjs- 
 ser (13 Ch. Div. 421); Holroyde v. Garnett (20 Ch. D. 
 532). 
 
 In Crowther v. Ellgood (34 Ch. Div. 691) it was held 
 that the case of an auctioneer who had made default in 
 payment of the sum of money produced by the sale of 
 goods entrusted to him for sale, and which he had been , 
 
 ordered to pay, fell within the exception as to persons 
 in a fiduciary relation under sect. 4 of the Debtors Act, 
 1869, and that he was liable to attachment. 
 
 In Martin v. Rocke, Eyton & Co. (34 W. R. 253) an Banker and 
 auctioneer had paid into his general account with the customer - 
 defendants' bank a large sum of money arising from 
 the sale by auction of the plaintiff's cattle. It was the 
 auctioneer's practice after sales, to pay the vendors of 
 cattle with his own cheques after deducting his com- 
 missions and the amount due from them if they were 
 also purchasers. The bankers, who had notice of the 
 source from which the money was derived and of the 
 purposes to which it was intended to apply it, appro- 
 priated the sum so paid in to discharge an overdraft on 
 the auctioneer's account. It was held that as the rela- 
 tion between banker and customer is that of debtor and 
 creditor only, the principle of In re Hallett (ubi supra) 
 did not apply, and that the plaintiff could not recover 
 from the bank. 20 
 
 ic Declaration of Trust. [ -k 8 ] 
 
 RICHARDS ii. DBLBRIDGE. 
 (L. E. 18 Eq. 11.) 
 
 In order to render a voluntary gift or settle- Principle. 
 ment valid, there must he what amounts to either 
 (1) a complete trans fer of the property benefici- 
 ally or in trust, or (#) a valid declaration of 
 trust. 1 
 
 John Delbridge was possessed of a mill held under Summary of 
 
 a lease, and also of certain plant, machinery, and facts - 
 
 20 For a sketch of the doctrine of equitable assets see Benson 
 v. Le Roy, 4 Johns. Ch. 651. 
 
 1 There have been numerous cases upon the subject of voluu- 
 
56 DECLARATION OP TRUST. 
 
 6tock in trade belonging to it, and shortly before 
 
 his death he indorsed on the lease and signed the 
 
 following memorandum : — 
 
 " 7th March, 1873. 
 
 " This deed and all .thereto belonging I give to 
 
 Edward Benetto Richards from this time forth, with 
 
 all the stock in trade." 
 
 " John Delbridge." 
 
 Richards was an infant at the time of the execu- 
 tion of the memorandum, and Delbridge delivered 
 the lease to the infant's mol her on his behalf. 
 
 Held, that there was no valid declaration of trust 
 of the property in favour of E. B. Richards.. 
 
 Creation of The law with regard to the creation of voluntary trusts, 
 voluntary on which there had been previously some conflict of 
 trust. authority (p. 13), was summed up by Jessel, M.R., in 
 
 the leading case, p. 14. "A man may transfer his pro- 
 perty without valuable consideration in one of two 
 ways, he may either do such acts as amount in law to a 
 conveyance or assignment of the property, and thus 
 completely divest himself of the legal ownership, in 
 which case the person who by those acts acquires the 
 property takes it, beneficially or on trust, as the case 
 may be, or the legal owner of the property may by one 
 or other of the modes recognised as amounting to a 
 I "A" 9 ] valid declaration of trust constitute -fa himself a trustee, 
 and without an actual transfer of the legal title, may so 
 
 tary trusts. "When a person is possessed of the legal title of the 
 subject matter he may create a valid trust in any one of the fol- 
 lowing ways, by declaration, saying that he holds the property 
 in trust, by a declaration saying ihat he holds the legal title in 
 trust for another person, or by transferring the legal title to a 
 third person for the benefit of the cestui que trust. Lloyd v. Brooks, 
 34 Md. 33. 
 
 The proper steps must be taken in order to make a valid trans- 
 fer of the legal title to the intended trustee; a mere mention 
 will not be sufficient. Swan v. Frick, 34 Md. 143. See the case 
 of Donalson v. Id., 1 Kay, 711, it being an authority upon the 
 subject of the creation of voluntary trusts by a declaration that 
 the settlor makes himself a trustee. In cases of this kind no 
 assignment of the legal title is necessary. "While no particular 
 form of words is necessary to create a trust yet the words must 
 indicate with sufficient certainty a purpose to create the trust. 
 Fisher v. Fields, 10 Johns. 495; Porter r. Bank of Rutland, 19 
 *Vt. 410; Norman v. Burnett, 25 Miss. 383; Carpenter r. Cush- 
 man, 105 Mass. 419. And if any other person than the settlor 
 is constituted a trustee there must be a proper transfer of the 
 subject matter. See Dickerson's Appeal, 19 W. N. of C. 121. 
 
DECLARATION OF TRUST. 57 
 
 deal with the property as to deprive himself of its 
 beneficial ownership, and declare that he will hold it 
 from that time forward oa trust for the other person. 2 
 It is true he ne^.; not use the words ' I declare myself 
 a trustee,' but he must do something which is equiva- 
 lent to it and use expressions which have that meaning, 
 for however anxious the Court may be to carry out a 
 mai_''= intention, it is not at liberty to construe words 
 otherwise than according to their proper meaning." 3 
 
 In the oft-quoted ease of Milroy v. Lord (4 D. F. & 
 J. 264), Lord Justice Turner, after referring to the two 
 modes of making a voluntary settlement valid and ef- 
 fectual, proceeded as follows in words which, according 
 to Jessel, M. K., in the leading case, contain the whole 
 law upon the subject. "The cases, I think, go further 
 to this extent, that if the settlement is intended to be 
 effectuated by one of the modes to which I have re- 
 ferred, the Court will not give effect to it by applying 
 another of those modes. 4 If it is intended to take effect 
 by- transfer, the Court will not hold the intended trans- 
 fer to operate as a declaration of trust, for then every 
 imperfect instrument would be made effectual by being 
 converted into a perfect trust." 5 
 
 In Baddeley v. Baddeley (9 Ch. D. 113), a husband, Husband 
 after reciting in a deed poll that he was beneficially en- and wiie - 
 titled to the ground-rents thereby intended to be set- 
 tled, assigned them to his wife as though she were a 
 single woman, and it was held that this amounted to a 
 declaration of trust, and the Court ordered it to be car- 
 ried into effect. 6 This case, however, was doubted in 
 In re Breton, Breton v. Woollven (17 Ch. D. 418). In 
 
 2 Sheet's Estate, 2 P. F. Sm. 266; Lewin on Trusts, 108 
 note (z). Neither will the use of the words " trust" and "trus- 
 tee " necessarily create a trust. See Richardson v. Inglesby, 13 
 Rich. Eq. 59; Freedley's Appeal, 10 P. F. Sm. 344; Seldon's Ap- 
 peal, 31 Conn. 548. But the absence of these words from the 
 trust instrument is.however to be taken notice of. Gorden v. 
 Green, 10 Ga. 534; Porter v. Bank of Rutland, 19 Vt. 410. 
 
 3 Any words which, show that the donee was intended to take 
 beneficially will answer the purpose. Day r. Roth, 18 N. Y. 
 453; Pierce o. McKeehan, 3 W. & S. 283. 
 
 4 Formalities are of minor importance since if the transaction 
 cannot be effectual as a trust executed, it may be enforced in 
 equity as a contract. Lewin on Trusts, 154 (Text Book Series); 
 Baldwin v. Humphries, 44 N. Y. 609, and Taylor v. Pownall, 10 
 Leigh, 183. 
 
 5 Bond v. Bunting, 28 P. F. Sm. 210. See opinion of Judge ■ 
 Hare. 
 
 6 Vance v. Nogle, 20 P. F. Sm. 79; Freeman v. Id., 9 Mo. 772; 
 Baron v. Id., 24 Vt. 375 ; Trenton Banking .Co. v. Woodruff, 1 
 Green, 117. 
 
58 DECLARATION OF TRUST. 
 
 that case a husband wrote and signed three papers and 
 handed them to his wife, by which he purported to give 
 her certain furniture, plate and other articles. He 
 afterwards made his will, and after certain dispositions 
 of his property which had nothing to do with the arti- 
 cles in question, he gave the .residue of his estate to his 
 wife for life, with remainder to other persons. V.-C. 
 Hall reviewed the previous authorities, and decided that 
 the furniture, &c, did not belong to the wife absolutely, 
 but formed part of the husband's estate. He was very 
 sorry so to decide, because it was a monstrous state of 
 the law that prevented effect being given to such a gift. 
 The law was laid down in Milroy v. Lord [supra) that 
 it must be plainly shewn that it was the purpose of the 
 settlement or the intention of the settlor to constitute 
 himself a trustee. 7 " In the present case," said Hall, 
 V.-C, "it is clear that it was not so intended. It was 
 not the purpose or meaning of the husband in writing 
 these letters to constitute himself a trustee for his wife. 
 I can well "understand in such a case a husband saying 
 to his wife, ' I mean to give you this as your own, but 
 when you ask me to be a trustee for you I must respect- 
 fully decline. I do not want to be involved in a trust 
 of that kind or in any trust.' " This case was distin- 
 guished in In re Whittaker, Whittaker v. Whittaker 
 (21 Ch. D. 657), where a gift by a husband to his wife 
 of a piano if she would learn to play upon it, was held 
 [ -^ 10] to be good, the piano being -^ regarded as not an ar- 
 ticle of furniture, but like a gift of a brooch or ring for 
 personal use, and as the wife had complied with the 
 condition she was held to be entitled to the benefit of 
 the gift. 
 
 When once a trust is executed in favor of volunteers 
 it cannot be broken 8 (Paul v. Paul, 20 Ch. Div. 743), 
 but so long as the matter rests in intention, and the 
 transfer is incomplete, there is a locus poenitentice ; 9 In 
 re Sykes (2 J. & H. 415). 
 
 With regard to assignments on trust, two classes of 
 
 7 If a settlor designs to effect a valid settlement in a certain 
 mode, but the settlement fails to take effect by reason of an in- 
 complete disposition, it cannot take effect in another mode, not 
 intended by the settlor. Bispham's Eq. 4th Ed. Sec. 67. 
 
 8 Andrews v. Hobson, 23 Ala. 219; Greenfield's Estate ' 2 Harris 
 (Pa.), 489. 
 
 9 When a party comes into equity to raise an interest by way 
 of trust there must be a valuable or meritorous consideration ; 
 and a mere voluntary covenant to convey will not be enforced. 
 See Appeal of Waynesburg College, 1 Amerman (Pa.), 130, fol- 
 lowing Trough's Est., 25 P. F. Sm. 115. 
 
DECLARATION OP TRUST. 59 
 
 cases of some difficulty arise (1) where the property is Assignments 
 of a legal interest incapable of legal transfer; 10 (2) on trust, 
 where the property is an equitable interest. " The first 
 class of cases is now of less importance, as by sect. 25, 
 sub- sect. 6, of the Judicature Act: — Any absolute as- 
 signment, by writing under the hand of the assignor 
 (not purporting to be by way of charge only), of any 
 debt or other legal chose in action, of which express 
 notice in writing shall have been given to the debtor, 
 trustee, or other person from the assignor would have 
 been entitled to receive or claim such debt or chose in 
 action, shall be, and be deemed to have been effectual 
 in law (subject to all equities which would have been 
 entitled to priority over the right of the assignee if this 
 Act had not passed), to pass and transfer the legal right 
 to such debt or chose in action from the date of such 
 notice, and all legal and other remedies for the same, 
 and the power to give a good discharge for the same, 
 without the concurrence of the assignor. See In re 
 King (14 Ch. D. 179), the authority of which is doubted 
 by Lewin (p. 71). 
 
 The law as to the latter class of cases may be consid- 
 ered as settled by Sloane v. Cadogan (Appendix to Sug. 
 Vend, and Purch. ), Kekewich v. Manning (1 De G. M. 
 & J. 176), and Donaldson v. Donaldson (1 Kay, 711). 
 "Suppose," said Knight Bruce, L.J., in Kekewich v. 
 Manning, "stock or money to be legally vested in A. as 
 a trustee for B., for life, and subject to B.'s interest, for 
 C. absolutely : surely it must be competent to C. in B.'s 
 lifetime, with or without the consent of A., to make an 
 effectual gift of C.'s interest to D. by way of pure 
 bounty, leaving the legaj interest and legal title un- 
 touched. If so, can C. do this better or more effectually 
 than by executing an assignment to D. ? " The prin- 
 ciples to be collected from this class of cases with regard 
 to voluntary transfers are that the settlor must do all he 
 can, but that as soon as that is done a binding trust is 
 created; and see on this subject Lewin, 8th ed. pp. 67 
 et seq. 
 
 It was held in Hall v. Hall (L. E. 8 Ch. 430) that Power ot 
 the mere absence of a power of revocation, even if the revocation, 
 attention of 1he settlor was not called to that absence, 
 does not make a voluntary settlement invalid but that 
 
 10 Debts and legal ehoses in action are now transferable at la-w- 
 and questions under this bead rarely occur. Appeal of Elliott's 
 Executor's, 50 Pa. State Reports, 75. 
 
 11 Lewin on Trusts, 158 (Text Book Series). 
 
60 DECLARATION OF TRUST. 
 
 these are merely circumstances to be taken into account. 1 
 See further on the subject Henry v. Armstrong (18 Oh. 
 D. 668), where tbe principle was laid down as follows: 
 — " The law is that anybody of full age and sound mind 
 who has executed a voluntary deed by which he has de- 
 nuded himself of his own property, is bound by his own 
 act, and if he himself comes to have the deed set aside 
 especially if he comes a long time afterwards — he must 
 
 r jl, -q-1 prove some substantial reason why -^ the deed should 
 
 L be set aside." n See also James v. Couchman (29 Ch. 
 
 D. 212). 
 
 In the recent case of Green v. Paterson (32 Ch. Div. 
 95) the Court of Appeal proceeded "on the well-known 
 rule that although a voluntary settlement, if perfected, 
 will be enforced by the Court, yet if it is not perfcted, 
 and there is anything to be done in order to give effect 
 to it, the Court will not interfere, although it will do so n 
 in all cases where the settlement is one which the par- 
 ties claiming execution of it can say is for valuable 
 consideration as regards them." u 
 
 It should be borne in mind that almost any consid- 
 eration will be sufficient to induce the Court not to treat a 
 settlement as voluntary. See Hewison v. Negus (16 Beav. 
 594); Toimisend v. Toker (L. E. 1 Ch. 446); Bayspoole 
 v. Collins (L.R. 6 Ch. 228); Teasdale v. Braithicaite (5 
 Ch. Div. 630); In re Foster and Lister (6 Ch. D. 87). 
 But see Shurmur v. Sedgwick, Crossfleld v. Shurmur (24 
 Ch. D. 597), where it was held that the settlement was 
 voluntary; and for an elaborate discussion of the sub- 
 ject of voluntary settlements see Davidson, 3rd ed. vol. 
 iii. pt. i. p. 668. 
 
 Who may An important question may here be conveniently dis- 
 
 be trustees, cussed, viz. who may be trustees : — I5 
 
 Aliens. Aliens may be trustees, as now by 33 & 34 Vict. c. 
 
 12 Where the intention appears to have been to make an irrev- 
 ocable gift, equity will not interfere to disturb the gift. 
 
 13 Where the're is no power of revocation in the instrument 
 creating the trust it is prima facie evidence of mistake. Russell's 
 Appeal, 25 P. F. Sm. 269; Miskey's Appeal, 107 Pa. St. Eepts. 
 628; Garnesly v. Mundy, 24 N. J. Eq. 243; Cooke v. Lamotte, 15 
 Bead. 234. 
 
 14 Lewell v. Roberts, 115 Mass. 272 ; Dennison v. Goehring, 7 
 Barr, 175. 
 
 15 Infants, married women and bankrupts, maybe trustees; a 
 corporation may also be a trustee, the United States, and each of 
 the States of the Union. Levy v. Levy, 33 N. Y. 97, and Shoe- 
 maker v. Commissioners, 36 Ind. 176. While any reasonable be- 
 ing may be a trustee it does not follow that they all can exercise 
 or perform the duties of a trustee, the question then, is rather 
 who can perform or execute & trust. Perry on Trusts, Sec. 39. 
 
DECLARATION OE TRUST. Gi 
 
 14, they can take, . hold, acquire, and dispose of real 
 and personal property in this country, but if domiciled 
 abroad they are not subject to the jurisdiction of the 
 Court 16 
 
 Bankrupts may be appointed trustees," but bank- Bankrupts, 
 ruptcy is a ground for removal of a trustee (In re 
 Barker's Trusts, 1 Ch. D. 43; In re Adams' Trust, 12 Ch. 
 D. 634), and when a receiving order is made against a 
 trustee in bankruptcy he vacates his offices (46 & 47 
 Vict. c. 52 (Bankruptcy Act, 1883), sect. 85). 
 
 Corporations under the old law could not be seised Corpora- 
 te a use, because, as Mr. Lewin quaintly puts it, " It tions - 
 was gravely observed it had no soul, and how then 
 could any confidence be reposed in it?" But now by 
 the Municipal Corporation Act, 1882 (45 & 46 Vict. c. 
 50), it is expressly provided by sects. 133 and 134 that 
 bodies corporate of boroughs in certain cases may be 
 treated for all intents and purposes as trustees. 18 
 
 The Bank of England cannot be made a trustee. Bank of 
 
 By 45 & 46 Viet. c. 51 (the Government Annuities England. 
 Act, 1882), sect. 8, the National Debt Commissioners National 
 and Savings Banks are not to enter any notice of any D ? bt . Cora - 
 trust " express, implied, or constructive," except trusts nll | sloners . 
 recognised by law in relation to deposits in savings Savings 
 banks, and trusts provided by any Act relating to the Banks, 
 property of married women. 
 
 A married woman may be a trustee, 19 (and see sect. 18 Married 
 of the Married Women's Property Act, 1882 (45 & 46 Women. 
 Vict. c. 75), under which a married woman trustee can 
 sue or be sued without her husband, and Docwra v. 
 Faith (29 Ch. "D. 693); but it is not expedient that she 
 should be appbinted. The Court formerly declined to 
 appoint a feme -jfc- sole trustee, but in the case of In re [ ^ 12] 
 Campbell's Trusts (31 Beav. 176) a feme sole who was 
 in all other respects unexceptionable, was proposed as 
 trustee, and the then Master of the Rolls, Sir John 
 Bomilly, after consulting the other judges made an 
 
 16 An alien can take and hold real estate till office found, 
 though he cannot do so by act of law, c. g. , hy descent. Orr v. 
 Hodgson, 4 Wheaton, 453; Smith v. Zoner, 4 Ala. 99. 
 
 17 Perry on Trusts, Sec. 49 ; Shyrock v. Waggoner, 28 Pa. St. 
 431. 
 
 18 A corporation which has but an artificial existence may be 
 a trustee for the purposes germane to the object of its corporate 
 life. See Girard v. Phila., 7 "Wallace, 1. The great difficulty to be 
 encountered here, as in England, is enforcing a decree of a Court 
 against the sovereign power. New v. Bonaker, L. K. 4 Eq. 655; 
 Hill on -Trustees. 50. 
 
 19 Lewin, 113 (Text Book Series). 
 
62 DECLARATION OF TRUST. 
 
 order appointing her one of the trustees. 20 In the case 
 
 of In re Berkley (L. E. 9 Ch. 720) a married lady who 
 
 was a relation of the cestui que trust was appointed a 
 
 trustee, as no other suitable person could be found who 
 
 was willing to undertake the office. 
 
 Infants. An infant ought not to be appointed a trustee. 21 
 
 Vestui que Cestui que trusts and relatives ought not to be ap- 
 
 trnsls and pointed, but as there is often great difficulty in obtain- 
 
 relatives. m g proper trustees, the Court occasionally relaxes its 
 
 rule in this respect. 22 
 Conveyanc- Sections 31-38 of the Conveyancing Act, 1881, con- 
 j^S Act, 1881 t a j n important provisions with regard to the appoint- 
 ment of new trustees, &c. Sect. 34 contains a novel 
 provision enabling "a vesting declaration " to be made, 
 by means of which (1) in case of an appointment of a 
 new trustee by the appointor, and (2) in the case of 
 a trustee retiring under sect. 32 by all the parties to the 
 deed, the trust property shall be shifted from A. to B. 
 without any conveyances by a simple declaration of in- 
 tention (see Clerke & Brett on the Conveyancing Act, 
 1881, p. 134). 
 
 Sect. 5 of the Conveyancing Act, 1882, provides that 
 " On an appointment of new trustees, a separate set of 
 trustees may be appointed for any part of the trust 
 property held on trusts distinct from those relating to 
 any other part or parts of the trust property. 
 
 Under this section new trustees were appointed to act 
 
 in conjunction with a sole continuing trustee of a will 
 
 in relation to a distinct part of the trust property: In 
 
 re Paine' s Trust (28 Ch. D. 725); and in In re Hether- 
 
 . ington' s Trusts (34 Ch. D. 211) separate feets of trustees 
 
 , were appointed for different parts of * the property, 
 
 though in a certain event the trusts might coalesce. 
 
 Statute of Before the Statute of Frauds (29 Car. II. c. 3), trusts 
 
 Frauds. of every species of property were averrable, i. e., they 
 
 might be created or traneferred by parol, but now the 
 
 7th section of the Statute of Frauds provides that " all 
 
 declarations or creations of trusts or confidences of any 
 
 lands, tenements, or hereditaments shall be manifested 
 
 20 There is nothing, so far as relates to her legal judgment and 
 capacity, to prevent her being appointed a trustee. People v. 
 Webster, 10 Wend. 55t. In suits relating to the trust property 
 she must join her husband. Still v. Ruby, 35 Pa. St. 373. 
 
 21 An infant labors under greater difficulties than a Jeme covert 
 for a feme has the capacity, though she cannot in all cases exer- 
 cise it freely ; but an iufant is said to want capacity. Lewin, 
 118 (Text Book Series). 
 
 22 There is no legal objection to the appointment of either a 
 cestui que trust or a relative. 
 
PRECATORY TRUSTS. 63 
 
 and proved by some writing signed by the party who 
 is by law enabled to declare such trust, or by his last 
 will in writing, or else they shall be utterly void and of 
 none effect." It was held in Kronheim v. Johnson (7 
 Ch. D. 60), following Tiemeyv. Wood (19 Beav. 330), 
 that the person who is by law enabled to declare a trust 
 is the beneficial owner only. The next section, the 8th, 
 excepts all trusts arising or resulting by implication or 
 construction of law, or transferred or extinguished by 
 act or operation of law. And sect. 9 provides that all 
 grants and assignments of any trust or confidence shall 
 likewise be in writing signed by the party granting or 
 assigning the same or by his last will. 
 
 The statute applies to freeholds, copyholds, and lease- 
 holds, but not to personalty, 23 McFadden v: Jenkyns (1 
 Phillips, 153.) 
 
 -^■It is to be noticed that the statute says "evidenced [•^■131 
 or proved by some writing," and accordingly the require- 
 ments of the statute are satisfied if the trust can be 
 manifested and proved by any subsequent acknowledg- 
 ment by the trustee as by an express declaration, a memo- 
 randum, a letter, an affidavit, or by a recital in a bond 
 or deed, and the trust, however late the proof, operates 
 retrospectively from the time of its creation. 2 * Lewin 
 on Trusts (8th ed. p. 56), and see Middleton v. Pollock 
 (4 Ch. D. 49). 
 
 Precatory Trusts. 
 
 In re ADAMS AND THE KENSINGTON VESTRY. 
 (27 Ch. Div. 394.) 
 The current of decisions with regard to pre- Principle. 
 catory trusts is now changed. The Court will 
 not allow a precatory trust to be raised where 
 the testator shews an intention to leave prop- 
 erty absolutely. 1 
 
 A testator gave " all his real and personal estate 
 
 23 The statute applies to chattels real as well as to freehold 
 estates, Skett v. Whitmore, Freem. 280, but does not extend to 
 mere personal rights concerning land. Perry on Trusts, Sec. 86. 
 
 24 For an account of the provisions of the statutes of the several 
 States of the Union upon this subject, see notes to 1 Jarman on 
 Wills, p. 113, 144, (4th American Ed). 
 
 1 A testamentary gift accompanied by words of entreaty or re- 
 
64 PRECATORY TRUSTS. 
 
 Summary ot and effects wheresoever and whatsoever" "unto and 
 facts. to j-jjg absolute use of his wife, her heirs, executors, 
 
 administrators and assigns, " in full confidence that 
 she would do what was right as to the disposal there- 
 of between his children, either in her lifetime or by- 
 will after her decease." The Court of Appeal de- 
 cided, affirming the decision of Pearson, J., that the 
 widow took an absolute interest in the property, 
 " unfettered by any trust in favour of the children." 2 
 
 The decision of the Court of Appeal in this case may 
 ,be considered as finally settling the conflict between the 
 older and the modern authorities on the subject of 
 "Precatory Trusts.." 
 Effect of the The effect of the old cases was that when property 
 old cases. was given absolutely to any person accompanied by 
 words of recommendation, entreaty, request, hope, 
 or wish (like the peto, rogo, volo, mando, fldei turn 
 r JL. 141 •focommitto, by which fidei-commissa were created by 
 the Koman Law, Justinian, Instit. 2. 24. 3.), such words 
 were held to create a precatory trust in favour of other 
 persons, if the words used were upon the whole to be 
 construed as imperative, and if the subject of the re- 
 commendation or wish, &c, and the object or person 
 intended to be benefited were certain. 
 
 The rule on this subject is thus expressed in Jarman 
 on Wills, vol. i. p. 396, 4th ed. : — ''If there is a total 
 absence of explicit direction as to the quantum to be 
 given, or as to the objects to be selected by the donee 
 of the property, then the Court will infer from the cir- 
 cumstance of the testator having used precatory words, 
 expressive only of hope, desire or request, instead of 
 the formal words usual for the creation of a trust, that 
 those words are used, not for the purpose of creating 
 an imperative trust, but simply as suggestions on the 
 
 commendation or expressing a wish or confidence, will be con- 
 strued as creating an absolute trust, which the first taker of the 
 gift will not be permitted to defeat. Loring v. Id., 100 Mass. 
 340; Erickson v. Willard, 1 N. H. 217; Mcree's Adm. v. Means, 
 34 Ala. 349. But in Connecticut and Pennsylvania, the rule 
 above is regarded with disfavor. See Gilbert v. Chapin, 19 Conn. 
 351, andPennock's Estate, 8 Harris (Pa.), 268-280; Paisley's Ap- 
 peal, 20 P. F. Sm. 153. A frequent case of implied trust arises 
 where a testator employs words precatory, or recommending or 
 expressing a belief. Bohon v. Barret, 79 Ky. 378; Handley o. 
 Eightson, 60 Md. 198. 
 
 2 The same kind of a case has been decided the other way in 
 Warner v. Bates, 98 Mass. 274. 
 
PRECATORY TRUSTS. 65 
 
 part of the testator, for the guidance of the donee in 
 the distribution of the property; the testator placing 
 implicit reliance upon his discretion and leaving him 
 the sole judge whether he will adopt those suggestions 
 or not, and whether he will dispose of the property in 
 the manner indicated by the testator, or in any other 
 manner at his absolute discretion." 
 
 The reason of the law on this point is well expressed 
 in the judgment of the Mussoorie Bank v. Raynor (7 
 App. Gas. 321): "If there is uncertainty as to the 
 amount or nature of the property that is given over, 
 two difficulties at once arise. There is not only diffi- 
 culty in the execution of the trust, because the Court 
 does not know upon what property to lay its hands, but 
 the uncertainty in the subject of the gift has a reflex 
 action upon the previous words, and throws doubt upon 
 the intention of the testator, and seems to shew that he 
 could not possibly have intended his words of confi- 
 dence, hope, or whatever they may be — his appeal to 
 the conscience of the first taker — to be imperative 
 words." 
 
 The old cases on the doctrine of precatory trusts will 
 be found collected in Jarman, 4th ed. vol. i. pp. 385 
 etseq., and see for the expressions which have been held 
 to create and to fail to create precatory trusts, pp. 387 
 et seq., and Theobald on Wills, 3rd ed. p. 355, and see 
 Lewin on Trusts, 8th ed. pp. 130 et seq. 
 
 In modern decisions however the leaning of the Court Leaning of 
 has been distinctly against the establishment of preca- *^ e Court in 
 tory trusts. In Lambe v. Eames (L. E. 6 Ch. 597,) ™°f 8 ern 
 where the gift was to the testator's widow to be "at her 
 disposal in any way she might think best for the benefit 
 of herself and family," the Court of Appeal held that 
 the widow took absolutely. In this case (as stated in 
 one of the judgments in the leading case, 27 Ch. Div. 
 p. 411), the late Lord Justice James had the courage 
 "to stem the tide." "The question," he said, "was 
 whether those words create any trust affecting the 
 property. In hearing case after case cited, I could not 
 help feeling that the officious kindness of the Court of 
 Chancery in interposing trusts where in inaDy cases the 
 father of the family never meant to create trusts, must 
 have been -^-a very cruel kindness indeed. I am satis- [ -^ 15] 
 fied that the testator in this case would have been 
 shocked to think that any person calling himself a 
 next friend could file a bill in this Court, and, under 
 pretence of benefiting the children, have taken the ad- 
 ministration of the estate from the wife. I am satisfied 
 
 5 MODERN EQUITY. 
 
66 PRECATORY TRUSTS. 
 
 that no such trust was intended, and that it would be 
 a violation of the clearest and plainest wishes of the 
 testator if we decided otherwise." 3 
 
 In Stead v. Mellor (5 Oh. D. 225) the testator gave 
 the residue of his property in trust for such of his two 
 nieces as should be living at his decease, his desire be- 
 ing that they should distribute such residue " as they 
 thought would be most agreeable to his wishes." It 
 was held, that the nieces took the residue for their own 
 benefit. Lambe v. Eames (ubi supra) was also ex- 
 pressly followed in In re Hutchinson and Tenant (8 
 Ch. D. 540), where a testator gave all his real and per- 
 sonal estate to his wife absolutely, " with full power for 
 her to dispose of the same as she might think fit for 
 the benefit of his family, having full confidence that 
 she would do so." It was held that the words were not 
 intended to impose any obligation on the widow, but that 
 they were merely an expression of the testator's wishes 
 and belief as distinguished from an obligation, and ac- 
 cordingly that the property passed to her absolutely. 
 In the case of the Mussoorie Bank v. Raynor (7 A pp. 
 Cas. 321), a man gave his widow the whole of his real 
 and personal property, feeling confident that she would 
 act justly to their children, and divide the same when- 
 ever occasion required it of her. The Privy Council, in 
 deciding in favour of the widow, expressed the opinion 
 that " the current of decisions now prevalent for many 
 years in the Court of Chancery shews that the doctrine 
 of precatory trusts is not to be extended." 
 
 In In re Moore, Moore v. Roche (34 "W. E. 343), the 
 testator made a bequest in the following terms: — "I 
 bequeath to my brother £4000 in trust for my sisters 
 on condition that they will support Maria Moore, at 
 the demise of either or any of the sisters, the survivor 
 or survivors to receive the increased income procured 
 thereby. They are hereby enjoined to take care of my 
 nephew John Cahill as may seem best in the future." 
 There was no residuary gift in the will. It was held 
 that the sisters took absolutely as joint tenants, subject 
 to the condition of supporting Maria Moore, but that 
 there was no trust, precatory or other, in favour of 
 John Cahill. 4 
 
 3 Prima facie precatory words ought to be considered as impera- 
 tive and to exclude any discretion on the part of the first taker, 
 and the general rule is that the intention as gathered from the 
 whole will, must govern. Spooner v, Lovejoy, 108 Mass 533; 
 Biddle's Appeal, 30 P. F. Sm. 258. 
 
 4 The construction of the words never turns upon their gram- 
 matical import. 
 
PRECATORY TRUSTS. 67 
 
 With regard to the law on this subject as settled by 
 the modern authorities, Cotton, L.J., in his judgment 
 in the leading case, made the following important ob- 
 servations: — "I have no hesitation in saying myself, 
 that I think some of the older authorities went, a great 
 deal too far in holding that some particular words ap- 
 pearing in a will were sufficient to create a trust. Un- 
 doubtedly confidence, if the rest of the context shews 
 that a trust is intended, may make a trust, but what 
 we have to look at is the whole of the will which we 
 have to construe, and if the confidence is that she will 
 do what is right as regards the disposal of the property, 
 I cannot say that that is, on the true -fa construction of [ -X- 16] 
 the will, a trust imposed on her. Having regard to 
 the later decisions, we must not extend the old cases in 
 any way, or rely upon the mere use of any particular 
 words, but, considering all the words which are used, 
 we have to see what is their true effect, and what was 
 the intention of the testator as expressed in his will." 
 To this Lindley, L. J., after quoting from the judgment 
 in Mussoorie Bank v. Raynor the passage cited above, 
 added: *'I am very glad to say that the current has 
 changed, and that beneficiaries are not to be made 
 trustees unless intended to be so by the testator." 5 
 
 5 When the testator "recommends" the trustees to do some- 
 thing, as to employ a receiver, the rule has been laid down that 
 though a recommendation may in some cases amount to a direc- 
 tion, yet the term "recommend" is flexible, and if from the 
 whole will it appears that the testator intended it as a mere re- 
 commendation and nothing more, the trustees can act otherwise, 
 i. e., not employ the receiver, and will not act inconsistently 
 with any positive provision of the will. See Second Church v. 
 Desbrow, 52 Pa. St. 219, and Knott v, Cottee, 2 Phill. 192. 
 
 In a precatory trust whether the language of the testator is to 
 be deemed imperative, or subject to the discretion of the donee, 
 is considered by the best authorities to depend upon the general 
 terms of the will, upon the certainty of the subject matter and 
 upon the certainty of the object. Bispham's Eq. Sec. 73, Lines 
 v. Darden, 5 Fla. 51, and notes to Harding v. Glyn, 2 Lead. Cas. 
 Eq. 950, and notes (4th English ed). 
 
68 
 
 TRUSTS FOR CREDITORS. 
 
 Trusts for Creditors. 
 
 Principle. 
 
 Summary of 
 facts. 
 
 JOHNS v. JAMES. 
 (8Ch. Div. 744.) 
 
 . A trust deed by which property is conveyed 
 for the benefit of creditors does not of itself 
 create a trust for any of the creditors? 
 
 Meyrick, who. owed Johns £3500, conveyed his 
 property to James, and gave him a power of attor- 
 ney to collect all his assets, and James was then to 
 stand possessed of the moneys to be received and 
 got in on trust to pay all debts due to Johns. Mey- 
 rick became bankrupt. James collected his assets, 
 but did not pay Johns' debt. Johns then com- 
 menced an action against James claiming an ac- 
 count, and that the estate might be administered, 
 and the debts of himself and other creditors satis- 
 fied. 2 The Court of Appeal decided on demurrer 
 that the action was not maintainable. 
 
 Garrard v. 
 
 Lord 
 
 Lauderdale. 
 
 [*17] 
 
 In this case "the Court confirmed and acted on the 
 principle established by Garrard v. Lord Lauderdale 
 (3 Sim. 1), affirmed on appeal (2 Russ. & My. 451). 
 " It is too late now," said the Lords Justices in -^ de- 
 livering judgment (8 Ch. Div. pp. 748, 753), "to re- 
 peat the doubts which were expressed by Vice- Chan- 
 cellor Knight Bruce as to the original propriety of the 
 decision in Garrard v. Lord Lauderdale, which we are 
 not disposed to share, though no doubt some observa- 
 tions were made in 1845 by Vice-Chancellor Knight 
 
 1 If a trust deed is created for the payment of debts generally, 
 and a bill is filed by one of the creditors to enforce the payment 
 of his debt, it can be accomplished only by a general execution 
 of the trust, and a decree will direct the payment of all the 
 debts. Bryant v. Russell, 23 Pick. 523; Russell v. Tasker, 4 
 Barb. 233; Haughton v. Davis, 23 Me. 28; McDougald v. Dough- 
 erty, 11 Ga. 570. 
 
 2 In Ohio and New York, under the Rev. Sts., a creditor first 
 filing a bill for the purpose of enforcing his claim is entitled to 
 priority. See Cornog v. White, 2 Paige, 5fi7; Burrall v. Leslie, 6 
 Paige, 445; and Atkinson y. Jordan, Wright, 247. 
 
TRUSTS FOR CREDITORS. 69 
 
 Bruce, and in 1849 by Vice-Chancellor Wigram, in- 
 dicating disapproval of that case. Thirty years have 
 elapsed since the last of those dicta was pronounced; 
 and Wallwyn v. Coutts (3 Mer. 707), Garrard v. Lord 
 Lauderdale, and Acton v. Woodgate (2 My. & K. 492) 
 have ever since been recognised and acted upon, and 
 they were distinctly recognised and spoken of with ap- 
 probation in the House of Lords by the Lord Chan- 
 cellor and Lord Cranworth, in the year 1858, in the 
 case of Montiflore v. Browne (7 H. L. C. 241 )." 
 
 In the celebrated case of Garrard v. Lord Lauderdale 
 (ubi supra) there was an assignment of certain personal 
 property to trustees in trust to sell, and after satisfying 
 certain claims and charges in a prescribed order, to divide 
 the proceeds among the scheduled creditors. 3 These cred- 
 itors were neither parties nor privies to the deed. 4 The 
 contents of the deed were, however, communicated to 
 them by a circular, though the plaintiff in the present 
 action did not admit the receipt of it, and had not re- 
 frained from suing, but had actually proved his debt 
 against the estate. It was held that the assignment 
 was a private arrangement for the convenience of the 
 debtor, and that there was no trust for the benefit of 
 the creditors. 5 
 
 In the leading case (8 Ch. Div. 749) James, L.J., 
 said that the case of Garrard v. Lord Lauderdale pro- 
 ceeded upon the plainest notions of common sense. 
 "It is quite obvious," he said, "that a man in pecu- 
 niary difficulties, having a great number of debts which 
 he could not meet, might put his property in the hands 
 of certain persons to realise and pay the creditors in 
 the best way they could. It was held in Garrard v. 
 Lord Lauderdale that really after all that is only mak- 
 ing those particular persons who are called trustees his 
 agents or attorneys. There might be a power of at- 
 torney for them to realize all his property and relieve 
 him from the difficulties he was in. If it were sup- 
 
 3 A trust may be created for the payment of a single or partic- 
 ular debt. Cooper v. Whitney, 3 Hill, 95. Or for a number of 
 debts specified in a schedule. Watson v. Bagaley, 12 Pa. St. 164. 
 
 4 Where a trust is created for the benefit of third persons with- 
 out their knowledge they may, as soon as they have notice of the 
 fact, affirm the trust, and a court of equity will enforce the per- 
 formance of it. Weston «. Barker, 12 Johns. Rep. 281, and 4 
 Kent's Com. 307, where Chan. Kent reviews Garrard v. Lauder- 
 dale. 
 
 5 The legal estate passes to, and vests in the trustees in an as- 
 signment for the benefit of creditors. Brook v. Marbuiy, 11 
 Wheaton, 97; Gray ». Hill, 10 S. & R. 436; Nicoll v. Mumford, 4 
 Johns. Ch. 529. 
 
70 
 
 TRUSTS FOR CREDITORS. 
 
 Principle of 
 decisions. 
 
 [*18] 
 
 Circum- 
 stances 
 which may 
 create 
 trust for 
 creditors. 
 
 posed that such a deed as that created an. absolute ir- 
 revocable trust in favour of every one of the persons 
 who happened at the time to be a creditor, the result 
 might at any time be very often monstrous. It would 
 give him no opportunity of settling an action, no op- 
 portunity of getting any food for himself or his family 
 the next day, or redeeming property pledged." It was 
 further pointed out in the same judgment that the re- 
 sult of holding that such a deed created an absolute trust 
 in favour of every creditor would be that the unfortu- 
 nate trustee might be liable to a thousand actions, for 
 he could not stop any of them till a judgment was 
 made in favour of all the creditors. 6 
 
 The principle on which these decisions are based, is 
 that the deed in question is considered as a mandate, 
 just as when a man gives his servant money with direc 
 tions to pay a debt, that does not of itself create any 
 right in favour of the creditor. The right to the 
 direction -jf of the money is the right of the person 
 who has put the money in the hands of the agent. 
 
 Circumstances may, however, as is pointed out in the 
 judgment in the leading case, have occurred or may 
 exist which makes the assignment a trust in favour of 
 some person or persons. " If the creditor," said James, 
 L.J., "has executed the deed himself, and been a party 
 to it, and assented to it — if he has entered into obliga- 
 tions upon the faith of the deed, of course that gives 
 him a right, just as in the case where a man receives 
 money from a person, or a direction from his creditor 
 to pay some other person instead of paying him, and 
 he communicates it to this person. 7 The person to 
 whom he communicates it has a legal right to have the 
 money so applied, but that does not enure for the bene- 
 fit of any other person or persons to whom no such com- 
 munication has been made." See Clegg v. Rees (L. E. 
 7 Ch. 71), where Garrard v. Lord Lauderdale is dis- 
 cussed and distinguished. And see further on the sub- 
 ject of trust deeds for creditors being rendered irrevo- 
 cable, in Lewin on Trusts, 8th edition, pp. 515 et seq., 
 where the authorities are collected and an observation 
 of Lord St. Leonards quoted from Broum-e v. Uavendish 
 (1 Jon. & Lat. 606) that he should be sorry to have it 
 understood that a man may create a trust for creditors, 
 
 "Reynolds e. Bank of Va., 6 Gratt, 174; Fisher v. Worth. 1 
 Busbee Eq. (N. Ca. ) 63. 
 
 7 The assent of an absent person to an assignment is to be pre- 
 sumed, unless his dissent be expressed. De Forrest v. Bacon, 2 
 Conn. 633; North v. Turner, 9 S. & R. 244. 
 
EXECUTORY TRUSTS. 71 
 
 communicate it to them, and obtain from them the bene- 
 fit of their lying by until perhaps the legal right to sue 
 was lost, and then insist that the trust was wholly with- . 
 in his power. 
 
 In In re Meredith, Meredith v. Facey (.29 Ch. D. 745), 
 it was held, following Watson v. Knight (19 Beav. 369), 
 that incumbrancers who had claimed priority over a 
 creditor's deed, and failed' in their contention, ought 
 not to be allowed afterwards to execute and take the 
 benefit of the deed ; and see Henderson v. Rothschild 
 (35 W. K. 485). 
 
 It must be remembered that by sect. 4 of the Bank- Act of bank- 
 ruptcy Act, 1883, a debtor commits an act of bank- ruptcy. 
 ruptcy (a) If in England or elsewhere he makes a 
 conveyance or assignment of his property to a trustee 
 or trustees for the benefit of his creditors generally ; 
 or (b) If in England or elsewhere he makes a fraudulent 
 conveyance, gift, delivery, or transfer of his property, 
 or any part thereof. 8 By sect. 6, 1 (c) a creditor is not 
 entitled to present a petition of bankruptcy unless 
 within three months after the act of bankruptcy on 
 which the petition is grounded. 
 
 + .Executory Trusts. [ -fc 19] 
 
 SAOKVUiLE-WEST v. VISCOUNT HOLMESDALE. 
 
 (L. R. 4H. L. 543.) 
 
 In construing executory trusts the Court exer- Principle. 
 cises a large authority in subordinating the lan- 
 guage to the intent} 
 
 The Countess Amherst by a codicil to her will Summary of 
 gave her freehold estates at Knole, and certain lease- facts - 
 holds and copyholds and furniture, plate, fixtures 
 
 8 If there is a bond fide assignment to trustees for the benefit of 
 creditors their assent is not necessary, and if the arrangement is 
 for their benefit their assent is presumed. Rankin v. Duryer, 
 21 Ala. 392; Weston v. Barker, 12 Johns. 281; Brooks v. Mar- 
 bury, 11 Wheaton, 78; Stewart v. Hall, 3 B. Mon. 218. But if 
 the assignment is made direct to the creditors, without the inter- 
 vention of trustees, their assent is necessary. Tompkins v. 
 "Wheeler, 16 Peters, 106. 
 
 1 When, therefore, the formal instrument, by which the min- 
 ute is to be carried out, comes to be drawn, a court of equity will 
 
72 EXECUTORY TRUSTS. 
 
 and chattels at Knole, to trustees in trust to settle 
 them in a course of settlement to correspond as 
 nearly as might be practicable with the limitations of 
 the barony of Buckhurst, in such manner and form 
 as the trustees should think proper, or as their 
 counsel should advise. The limitations of the let- 
 ters patent of the barony of Buckhurst after the de- 
 cease of the Countess de la Warr (who died before 
 the appeal was heard in the House of Lords) wei-e 
 to Reginald Windsor Sackville-West, her second 
 surviving son, and " the heirs male of his body," and 
 in default of such issue the peerage was to go to the 
 third, fourth, and fifth sons of the Countess de la 
 Warr successively, and the heirs male of their 
 bodies, with a shifting clause by which in certain 
 events the barony was to go over. The House of 
 Lords decided that the estates ought to be limited 
 in a course of strict settlement to the second and 
 other younger sons of the Countess de la Warr for 
 their respective lives without impeachment of waste, 
 with remainder to their sons successively in tail 
 male in the order mentioned in the letters patent 
 creating the barony, and that the copyholds, lease- 
 [ -fa 20] holds, and chattels -^- were to go in a similar man- 
 ner so far as the rules of law and equity would 
 allow, and that the settlement ought to contain 
 powers of jointuring and of charging portions. 
 
 In this case, as Lord Cairns said, in delivering judg- 
 ment, p. 577, the law on the subject was so completely 
 settled that no principle or rule was in controversy, the 
 only question was " as to the proper construction of an 
 imperfect and inartistic codicil." The codicil to Lady 
 Amherst's will, said another of the Law Lords, creates- 
 an "executory trust." 2 The object of the testatrix was 
 
 see that a settlement is made which will in due form of legal con- 
 veyancing effectuate the intention of the creator of the trust. 
 Yarnall's Appeal, 20 P. F. Sm. 340; Neves v. Scott, 9 How. 211; 
 Wood v. Burnham, 6 Paige, 513. As to what is sufficient evi- 
 dence of intention the authoi'ities are not altogether uniform. 
 See Glenorchy v. Bosville, 1 Lead. Cas. Eq. 20 and notes. 
 2 For definition of an executory trust, see 1 Lewin, 21. 
 
EXECUTORY TRUSTS. 73 
 
 to annex as far as sho could "alienable" hereditaments 
 and other property to an "inalienable" Barony, to at- 
 tach the property by an apt and formal method of law 
 to the new Peerage, so as to make it a provision for the 
 Peerage. The settlement, it is to be observed, was to 
 be made to correspond, so far as might be practicable, 
 with the limitations of the Barony. " To correspond," 
 said Lord Cairns, " does not mean to be identical with, 
 but to harmonize with, or to be suitable to, and the 
 words ' so far as they may be practicable ' are to be 
 read as a recognition of the difference which must 
 always exist in substance between the limitation of a 
 dignity and the limitation of property of any and every 
 tenure. Lord Westbury, after stating the general prin- 
 ciple which is stated above, that " in construing words 
 creating an executory trust, a Court exercises a large 
 authority in subordinating the language to the intent," 
 proceeded as follows: — "It is plain, from the whole of 
 the codicil, that the general aad leading intent of the 
 testatrix was to make provision for the support and 
 maintenance of the dignity; and it would be mere 
 mockery of this intent and purpose if the estates were 
 settled so that they would at once become the absolute 
 property of Reginald to the disherison of all subse- 
 quent possessors of the dignity under the letters pat- 
 ent." The question therefore to be determined was 
 whether, to use the words of Lord St. Leonards in Eger- 
 ton v. Earl Brownlow (4 H. L. C. 210), "the testatrix 
 has been her own conveyancer, whether she has left it 
 to the Court to make out from general expressions what 
 her intention is, or has so defined that intention that 
 you have nothing to do but to take the limitations she 
 has given you, and to convert them into legal estates." 3 
 
 Trusts, according to the old distinction established, 
 as Lord Hardwicke said in Bagshaw v. Spencer (2 At- 
 kins, 582), by the ca^e of Lord Olenorchy v. Bosville 
 (Cas. tempore Talbot, 3), decided more than 150 years 
 ago (1733), are either "executed" or "executory." 
 
 A trust is said to be executed where the limitations Executed 
 of the equitable interest are complete and final. 4 See trust. 
 Lewin on Trusts, 8th ed. pp. Ill et seq., where the sub- 
 ject is carefully discussed and the history of the dis- 
 tinctions between executed and executory trusts, and 
 
 3 Tillinghast v. Coggeshall, 7 R. I. 383. 
 
 4 In an executed trust the instrument must be interpreted ac- 
 cording to the rules of law, -which are very generally the same. 
 both for equitable and-for legal estates' although by such inter- 
 pretation the intention may be defeated. Bispham's Eq. Sec. 57. 
 
74 EXECUTORY TRUSTS. 
 
 between executory trusts arising in marriage articles 
 and wills (at first somewhat doubtful, but now abso- 
 r » 21] lutely settled) is elaborately stated, -fr In the case of 
 marriage articles the Court will presume from the na- 
 ture of the instrument an intention to settle the prop- 
 erty, while no such presumption is made in the case of 
 Executory a will. 5 Opposed to the executed trust is the " execu- 
 trust. tory" trust arising either under marriage articles or 
 
 wills, that is to say, " not a trust which remains to be 
 executed, for in this sense all trusts are executory at 
 their creation, but a trust which is to be executed by 
 the preparation of a complete and formal settlement, 
 carrying into effect, through the operation of an apt 
 and detailed legal phraseology, the general intention 
 compendiously indicated by the testator" (per Lord 
 Cairns in the leading case, p. 571 ). 6 A trust is said to 
 be executory or directory where the objects take not 
 immediately under it, but by means of some further act 
 to be done by a third person, usually him in whom the 
 legal estate is vested. 7 (Jarman on Wills, 4th ed. vol. 
 ii. p. 344. ) The origin of the rule, Lord Hatherley 
 tells us in the leading case, p. 553, may be traced to 
 the desire to obviate the consequence of the extremely 
 technical doctrine of the rule in Shelley's Case} This 
 arose principally under marriage articles where an es- 
 tate was limited to the husband for life with a subse- 
 quent remainder to his heirs, or the heirs t>f his body, 
 which limitation, if literally introduced into the settle- 
 ment, would under the rule in Shelley's Case confer an 
 estate of inheritance on the husband, and so enable him 
 to defeat the very object of the settlement. In mar- 
 riage articles, said Lord Westbury (L. E. 4 H. L. p. 
 565), containing an agreement that his estate shall be 
 settled on the intended husband for life, and then on 
 the heirs of his body, a Court of Equity discerns an in- 
 tention that the issue shall take as purchasers, and it 
 refuses, therefore, to give to the words " heirs of the 
 body " their proper effect and meaning at common law, 
 
 Sweetapple v. Bindon, 2 Vera. 536. 
 
 b A trust executed, says Lewin page 202 (Text Book Series), is 
 where limitations of the equitable interest are complete and 
 final; in the executory trust, the limitations of the equitable in- 
 terest are intended to serve merely as minutes or instructions for 
 perfecting the settlement at some future period. Gushing v. 
 Blake, 30 N. J. Eq. 689; Wood r. Burnham, 6 Paige, 518. 
 
 ' Neves v. Scott, 9 Howard, 197: Green v. Eumph, 2 Hill's 
 Eq. 101; Gause v. Hale, 2 Ired Eq. 241. 
 
 8 Dennison v. Goehring, 7 Barr. 177; Noble v. Andrews, 37 
 Conn. 346. 
 
EXECUTORY TRUSTS. 75 
 
 but directs a settlement on the first asd other sons in 
 tail. In this case, the words " heirs of the body " are 
 neither informal nor imperfect, but their legal effect is 
 overruled by the intention. (See Cogan v. Duffield, 2 
 Ch. Div. 44.) 
 
 Even in the case of a will however, if the intention 
 to settle the property is on the face of the will,the Court 
 will give effect to it. 9 This is well illustrated by the 
 two old cases of Sweetapple v. Bindon (2 Vern. 536) 
 and Papillon v. Voice (2 P. Wms. 471), in the latter 
 of which the Court held that a direct devise of land 
 created an estate tail, but that a gift of money to trus- 
 tees to be laid out in land and settled on nearly the 
 same trusts was to be treated as executory and limited 
 in strict settlement. 
 
 The following (amongst other) forms of expression Words which 
 have been held sufficient to create executory trusts in create 
 wills, viz. Instructions to trustees to settle property in executory 
 moieties between two sons, and to take " special care in tlusts - 
 such settlement that it should never be in the power of 
 either son to dock the entail of the estate given to him 
 during his life: " Leonard v. Earl of Sussex (2 Vern. 
 526). Directions that the heirs of the body or issue 
 should ,take "in succession or priority of birth, or that 
 the settlement shpuld be made" as counsel should 
 advise or " as executors should think fit " 10 ( White v. 
 Carter (2 Eden, 366), Bastard v. Proby ■+ (2 Cox, 6) ), [ -^ 22] 
 " to convey, assign, and assure to the use of my son J. 
 E. and the heirs of his body lawfully issuing, in such 
 manner and form and subject to such limitations and 
 restrictions as that if J. F. should happen to die with- 
 out lawful issue, then that the property might descend 
 after his death unencumbered." Thompson v. Fisher 
 (L. E. 10 Eq. 207); and see the subject fully discussed 
 in Jarman on Wills, 4th edit. vol. ii. pp. 346 et seq. u 
 
 A singular application of the doctrine of executory 
 
 9 If a conveyance be drawn in such a way that B. will take 
 hut a life estate, and the parties intended to he described by the 
 word "heirs" will take as purchasers in remainder. Saunders v. 
 Edwards, 2 Jon. Eq. 134; Porter v. Doby, 2 Rich. Eq. 49; Perry 
 on Trusts, Sec. 359. 
 
 10 "Heirs of the body " and "issue " are far from synonymous 
 expressions. Lewin, 212 (Text Book Series), andYarnall's Ap- 
 peal, 70 Pa. St. 340, and Kleppner r. Laverty, Id. 70. 
 
 11 There is no difference between the rules applicable to mar- 
 riage articles and those in regard to wills, further than this, viz. 
 that in the former instruments res ipsa loquitur, the occasion it- 
 self testifies what the paramount object Of the parties must have 
 been. Bispham's Eq. 4th Ed. Sec. 57. The case under consider- 
 ation contains a full discussion of the law on this point. 
 
76 ' EXECUTORY TRUSTS. 
 
 Miles v. trusts arose in Miles v. Harford (12 Ch. D. 691 )- 
 
 Harford. There a testator being desirous to found four families 
 divided his freehold property into four estates. He be- 
 gan with the first son and the first estate, and went 
 through them all on the same principle by devising an 
 estate to each of his four eldest sons, with limitations 
 in strict settlement to the son's issue, and then with re- 
 mainder to another son and his issue. There was also 
 what is called a " shifting clause " by which in certain 
 events the limitations of the Cardiganshire estate in fa- 
 vour of one of the sons and his family were to cease 
 He then bequeathed his leasehold estates in Cardigan- 
 shire to trustees upon such trusts as, "regard being 
 had to the difference in the tenure of the premises re- 
 spectively, would best or most nearly correspond to the 
 uses of the Cardiganshire freeholds," being the part 
 which was left to his fourth son and his issue male, 
 with remainder to his fifth son and his issue male in 
 strict'settlement. 
 
 Jessel, M.R., held that even if he were to assume the 
 shifting clause to be bad for remoteness (and he held 
 it was not on the ground that it was divisible), it ought 
 to be modified by the Court so as to be free from any 
 such objection, and to carry out the testator's intention. 
 It was, he said, a case of a trust " executory" or " ex- 
 ecutive," where a conveyance had been directed to be> 
 executed by a testator, where, instead of expressing ex- 
 actly what he meant, that is, filling up the terms of the 
 trust, he told his trustees to do their best to carry out 
 his intention. The settlor in fact had not put into 
 words the precise nature of the limitations, but had said 
 to his trustees in effect, " These are my intentions, do 
 your best to carry them out," and then it was the busi- 
 ness of the trustees to get the advice of competent law- 
 yers and mould the trusts according to the testator's- 
 intentions. 12 
 
 Construction It may be noticed in passing that in this case, Jessel,. 
 
 of real estate M.R., laid down the important principle that in "real 
 estate wills" the Court had not the same liberty as re- 
 gards construing a will according to its meaning, as in 
 the case of what are commonly called " personal estate- 
 wills," the reason being that land in this country is 
 held by title, and that the very complicated and curious- 
 law affecting real' estates depends almost entirely on- 
 judicial decisions as to the construction of particular 
 instruments. 
 
 12 An executory trust is settled and carried into effect accord- 
 ing to the intentions of the settlor. McElroyr. Id., 113Mass.509. 
 
EXECUTORY TRUSTS. 77 
 
 The subject of the leading case was very recently Executory 
 considered in In re Johnson, Cockerell v. Earl of Essex trust when 
 (26 Ch. D. 538). In that case the testatrix, by a codi- an £ when 
 cil which raised a number of other legal points, made n0 crea e ' 
 two separate gifts which well illustrate the cases in 
 which executory trusts are held by the Courts to be or 
 not to be created. 
 
 •fc 1. She bequeathed to the Right Hon. Algernon [ -^ 23] 
 Capel, sixth Earl of Essex, and to his. successors, all 
 her plate, and also bequeathed her leasehold residence 
 to the same person and his successors "to be enjoyed 
 •with and to go with the title." 
 
 2. She then bequeathed all her household furniture, 
 paintings, books, china, and the whole contents of her 
 house, to her trustees and executors upon trust that 
 they should in the first place select and set aside a col- 
 lection of the best paintings, statuary, and china for 
 the said Earl of Essex and his successors to be held 
 and settled as heirlooms, and to go with the title. 
 
 It was held that the plate and leasehold house passed 
 absolutely as the words " to be enjoyed and go with the 
 title " were insufficient to create an executory trust; but 
 that the second gift to the trustees of the contents of 
 the house must be treated as an executory trust, and 
 accordingly a settlement was directed, the terms of 
 ■which were directed to be settled at Chambers. 13 
 
 See as to form of settlement and generally as to the 
 law on this subject, Davidson's Precedents, 3rd ed. vol. 
 iii. pt. i. pp. 195, 329, 602, 662 et seq. 
 
 13 Technical terms are not necessary but if they are used they 
 are to be taken in their legal and technical sense. Lewin 200, 
 (Text Book Series). 
 
78 
 
 CHARITY. 
 
 Charity. 
 The Cy-pres Doctrine. 
 
 Principle. 
 
 In re OAMPDEN CHARITIES. 
 (18 Ch. Div. 310.) 
 
 The cy-pres doctrine is applied to charitable 
 gifts when from lapse of time and change of 
 circumstances it is no longer beneficial to carry • 
 out the intention of the donor in the exact mode 
 which he has directed. 1 
 
 The Court will not interfere with a scheme 
 settled by the Charity Commissioners unless the 
 Commissioners have exceeded their jurisdiction 
 or the scheme contains something wrong in prin- 
 ciple or wrong in law. 2 
 
 Summary of The charitable gifts which came under the con- 
 facts, sideration of the Court in this case consisted of (1) 
 £200 left by the will of Viscount Campden in the 
 
 1 Id svich a ease the court will apply the gift as nearly as pos- 
 sible in conformity to the general intention of the testator. 
 Bartlet v. King, 12 Mass. 543, and for a very clear statement of 
 the law upon the subject, see opinion of Mr. Justice Gray in 
 Jackson v. Phillips ( 14 Allen, 539. 
 
 2 In Jackson i>. Phillips (supra) the doctrine is thus given: 
 Where a gift is made to a trustee for charitable purposes the 
 general nature of which is pointed out, .and which is lawful and 
 valid at the time of the death of the testator, and no intention 
 is expressed to limit it to a particular institution or mode of ap- 
 plication, and afterwards, either by change of circumstances the 
 scheme of the testator becomes impracticable or by change of 
 law becomes illegal, the fund, having once vested in the charity, 
 does not go to the heirs at law as a resulting trust, but is to be 
 applied by the court of chancery, in the exercise of its jurisdic- 
 tion in equity, as near the testator's particular directions as pos- 
 sible, to carry out his general charitable intent. See further, 
 Attorney-General v. Ironmonger's Co., C. E. and P. H. 208. The 
 doctrine as above stated is approved in all the States where the 
 doctrine that indefiniteness of the object is no objection to a 
 trust, provided it is a charity. Paschal v. Acklin, 27 Texas, 173; 
 Johnson v. Mayne, 4 Clarke (Iowa), 180; Dickson v. Montgomery. 
 1 Swan. (Tenn.) 348; Pickering v. Shotwell, 10 Barr. 27; Potter 
 ii. Thornton, 7 R. I. 252; Walker ?>. Id., 25 Ga. 420; Bascom i>. 
 Albertson, 34 N. Y. 584; Umrey's Exr's. v. "Wood, 1 Ohio 
 St. N. S. 160; Preacher's Society v. Rich, 45 Maine, 552. 
 
CHARITY. . 79 
 
 year 1629 for -fa the benefit of the poor of Kensing- [ -^ 24] 
 ton, " as the trustees for the time being should think 
 fit to establish for ever." (2) £200 left in 1643 by 
 the will of Viscountess Campden to purchase lands 
 of the clear annual value of £10, " one half of which 
 should be applied from time to time for ever for and 
 towards the better relief of the most poor and needy 
 people that be of good life and conversation that 
 should be inhabiting within the said parish of Ken 
 sington and the other half thereof should be applied 
 yearly for ever to put forth one poor boy or more 
 being of the said parish to be apprenticed. The 
 said £5 due to the poor to be paid to them half 
 yearly for ever at Ladyday and Michaelmas in the 
 church or porch thereof." (3) Two acres of land 
 conveyed to trustees in 1651 by an unknown donor 
 supposed to have been Oliver Cromwell and known 
 as " Cromwell's Gift," with regard to which there 
 was no evidence what the founders -intention was, 
 and it had been for years applied as part of the other 
 charities. The parish of Kensington had increased 
 enormously in proportions, and the total rents of 
 the charity estates were about £3600, of which 
 £2200 belonged to Lady Campden's Charity. 
 
 The trustees had for a considerable time been ap- 
 plying the charity funds in a manner which, though 
 beneficial, was yet not in accordance with the direc- 
 tions in Lady Campden's will. The Charity Com- 
 missioners prepared a draft scheme for the adminis- 
 tration of the Charities, by which they appropriated 
 the income to a variety of objects, among which 
 were the relief of poor deserving objects, subscrip- 
 tions to hospitals within the parish, educational 
 and other charitable purposes. Some of the parish- 
 ioners objected to the scheme, but the Court of Ap- 
 peal reversed the decision of Hall, V. C, and sub- 
 ject to certain alterations in minor points, confirmed 
 the scheme and ordered it to be carried into effect. 8 
 
 3 Where the charitable purposes specified by the testator do 
 not exhaust the whole of the income from the fund and it ap- 
 
80 CHAKITY. 
 
 [ -fc 25] ^ The principle upon which the Court proceeds in 
 
 Principle. applyiug the doctrine of cy-pres, i.e. following as nearly 
 as possible the intention of the donor, was thus laid 
 down by Lord Eldon in the oft-quoted case of Mog- 
 gridge v. Thackwell (7 Ves. 69): that if the testator has 
 manifested a general intention to give to charity, the 
 failure of the particular mode in which the charity is 
 to be effectuated shall not destroy the charity, but if 
 the substantial intention is charity, the law will sub- 
 stitute another mode of devoting the property to chari- 
 table purposes though the formal intention as to the 
 mode cannot be accomplished. See Jarman on Wills, 
 4th ed. vol. 1, p. 243; Tudor on Charitable Trusts, 2nd 
 ed. p. 260. 
 
 The judge before whom the leading case was brought 
 in the first instance, (IS Ch. Div. 318, 321,) considered 
 that the scheme settled by the Charity Commissioners 
 ought not to be sanctioned by the Court, and he ac- 
 cordingly remitted it for reconsideration and remodel- 
 ling. The principal ground on which he based his de- 
 cision was that the scheme of the Charity Commission- 
 ers did not conform to the sound construction of the 
 founder's declared trusts; and this objection he held to 
 be peculiarly fatal in the present case, where in his 
 opinion the usage had been conformable to what the 
 Court considered to be the correct constr action of the 
 trusts. The Court of Appeal in reversing this decision 
 proceeded on the principle that the circumstances of 
 the case had altered so much that anything like a rigid 
 adherence to the words of the testatrix's will would al- 
 together defeat '' the principal object which she had in 
 view as distinguished from the means by which she 
 wished that object to be carried out." The increase in 
 the value of the property had been enormous, but the 
 change in the whole circumstances and condition lL of 
 the parish of Kensington " had been so infinitely greater 
 that it required some exercise of the imagination to 
 adequately realize it. " The then village of Kensing- 
 ton was a small village about a mile and a half from 
 Hyde Park Corner, and in old documents it is called a 
 village. 
 
 " Now it is what we know it, a suburb of London, 
 
 pears from the will that the testator intended that all of the 
 income should be applied to charitable purposes the trustee may 
 so apply it. But if it appears to have been his intention that 
 only a certain amount should be applied to the charity then as 
 to the surplus a resulting trust will arise in favour of the heir or 
 next of kin. Hill on Trustees, 129. 
 
CHARITY. 81 
 
 very thickly inhabited with many thousands of people, 
 and containing a large number of houses of great mag- 
 nitude and value inhabited by wealthy people. The 
 whole of the circumstances of the place have changed. 
 That which was a provision for the poor inhabitants of 
 a village is now a provision for the numerous inhab- 
 itants of this large town or part of a town." 
 
 "Again," the judgment continues, "circumstances 
 have changed in another way. The habits of society 
 have changed, and not only men's ideas have changed, 
 but men's practices have changed, and in consequence 
 of the change of ideas there has been a change of legis- 
 lation; laws have become obsolete or have been abso- 
 lutely repealed, the habits have become obsolete, and 
 have fallen into disuse, which were prevalent at the 
 times when these wills were made. -The change, in- 
 deed, has become so great in the case that we are con- 
 sidering, that it is eminently a case for the application 
 of the cy-prhs doctrine, if there is nothing to prevent 
 its application." 
 
 •Jf The Court of Appeal then proceeded to consider [ -^ 26] 
 the mode in which the testatrix had directed the fund 
 to be applied. One moiety was to be applied in " doles," 
 but that which might have been reasonable enough more 
 than 200 years ago, when 50 shillings were to be given 
 half-yearly among a few poor people in a small parish, 
 would be intolerable on a large scale in a large town 
 like Kensington. " Was it," asked Jessel, M.E., " the 
 intention of the testatrix ? Here again I should say 
 emphatically, No. Could she have intended to dis- 
 tribute 500 sovereigns every half year among the poor 
 of a large town like Kensington. There was no such 
 idea in her mind. It seems to me, when you consider 
 the change in the amount of money and the change in 
 the surrounding circumstances, you cannot impute to 
 the testatrix an intention to distribute this large sum 
 in the way I. have mentioned. 
 
 " The other moiety was to be used for the purpose 
 of apprenticing one or more boys of the parish. Here 
 it is to be remembered that under the 5th Eliz. it was 
 part of the law of. the land that no one could exercise 
 a trade without being apprenticed. All that legislation 
 has been repealed — so that the case falls within the 
 principle laid down by Lord Westbury in Clephane v. 
 Lord Provost of Edinburgh (L. R. 1 H. JU 417), where 
 the means to the end required a change, the end (that 
 of educating the poor of the parish so as to enable them 
 to obtain a living) being kept in view." 
 
 6 MODERN EQUITY. 
 
82 
 
 CHARITY. 
 
 Principles on 
 which 
 scheme set 
 aside. , 
 
 t*27] 
 
 No degrees 
 in cy-prh. 
 
 Gift to 
 charity. 
 
 " To confine," said James, L.J.,- "the application of 
 that charity in the present state of things, in the pres- 
 ent state of feeling, and the present state of the law to 
 those persons only among the poor of Kensington whose 
 children would be willing to become apprentices to 
 tradesmen or otherwise, and to exclude from the charity 
 all that other mass of poor people who have got the 
 same claim, and who do not now find it beneficial for 
 ttlfeir children to be put out as apprentices, would be, 
 in fact, to exclude from the charity the great majority 
 of that class of poor who it is obvious to my mind Lady 
 Campden contemplated as recipients of the benefit of 
 the charity, and in doing that we should be in truth 
 defeating the spirit of Lady Campden's gift by follow- 
 ing strictly the letter, when that letter has become in- 
 applicable." 
 
 In discussing the principles on which the Court 
 should act when asked to set aside or remodel a scheme 
 settled by the Charity Commissioners, Jessel, M.R., 
 said: "This is a scheme settled by a competent author- 
 ity, the Charity Commissioners, persons not only of 
 great, but of special experience in these matters, and 
 persons intrusted with the supervision of these matters 
 as a separate body by the Legislature for that very 
 reason. It would not be, in my opinion, sufficient for 
 a judge to say he thought some detail might well be 
 different, or that if he himself had originally settled 
 the scheme he should have put in some others than 
 those which are specified in the scheme. He must be 
 satisfied that the Charity Commissioners have gone 
 wrong either by disobeying those rules of law which 
 govern them, as well as they govern Courts of justice, 
 or else that there has been some slip or gross -fa mis- 
 carriage which calls for the intervention of the Court 
 to set aside and remodel the scheme." 
 
 It was pointed out in the leading case (18 Ch. Div. 
 333) that there are no degrees in cy-pres — no such thing , 
 as more or less cypres in the question of jurisdiction in 
 dealing with a fund under change of circumstances. 
 
 Where there is a gift to such charitable institutions 
 as the testator shall by codicil appoint, and he makes 
 no codicil, there is a clear gift to charity, and nothing 
 less than clear words will take it away. Mills v. Farmer 
 (1 Mer. 55); Moggridge v. Thackwell (ubi supra); Po- 
 cock v. Attorney ■ General (3 Ch. Div. 342).* 
 
 * A gift for "charity" or for "charitable purposes" without 
 adding more is a good charitable bequest, also a gift to a charit- 
 
CHARITY. 83 
 
 Where lands, or the rent of lands, are given to char- 
 itable purposes, which at the time exhaust, or are rep- 
 resented to exhaust, the whole rents, and those rents 
 increase in amount, the excess arising from such aug- 
 mentation shall be appropriated to charity, and not go, 
 by way of resulting trust, to the heir-at-law/ 
 
 The reason of this rule was criticised by Lord Hard- 
 wicke and Lord Eldon, both of whom admitted that it 
 was so firmly established as not now to be shakerj. The 
 rule however does not apply if a man gives an es- 
 tate to trustees, and takes notice that the payments are 
 less than the amount of the rents. In this case there 
 would either be a resulting trust, or the surplus would 
 belong to the person who takes the estate. (1 Jarman 
 on Wills, 4th ed. 573, where the authorities, beginning 
 with Thetford School Case (8 Go. K. 130) and ending 
 with the leading case of The Attorney -General v. The 
 Wardens, <&c, of the Wax Chandler's Co. (L. B,. 4 H. 
 L. 1), are collected). 6 
 
 In Mayor of Lyons v. Advocate General of Bengal (1 
 App. Cas. 91) the principle was stated to be that the 
 Court treats charity in the abstract as the substance of 
 the gift, and the particular disposition as the mode, so 
 that in the eye of the Court the gift, notwithstanding 
 the particular disposition may not be capable of execu- 
 tion, subsists as a legacy which never fails and cannot 
 lapse. 7 
 
 In this case it was held that where there is a general 
 charitable intention the cy-pres doctrine will be applied 
 upon the failure of a specific charitable bequest, 
 whether the residue be given to a charity or not, unless 
 a direction can be implied that the bequest, if it fails, 
 shall fall into the residue; that no general rule can be 
 laid down that the cypres doctrine is always displaced 
 where the residuary bequest is to charity, ex. gr. where 
 the charitable object of the residuary clause is so limited 
 
 able association although no charitable use is designated. Evan- 
 gelical Association's Appeal. 11 Casey, 316. 
 
 5 Jackson v. Phillips (supra), City of Phila. v. G-irard's Heirs, 
 9 Wright, 28. 
 
 6 The surplus will also be appropriated to the charity. 2 Red- 
 field on Wills, 796, Girard v. Phila., 7 Wal. 1. 
 
 7 This dodtrine seems to be free from objection ; it is also true 
 that the cy-prh doctrine has in many cases throughout the United 
 States been regarded with considerable disfavor. See Fontain v. 
 Ea venal, 17 Howard, 369 ; White v. Fisk, 22 Conn. 31 ; Carter v. 
 Balfour, 19 Ala. 814 ; Grimes v. Harmon, 35 Ind. 19H ; Venable 
 v. Coffman, 2 W. Va. 310, while the tendancy was the other in 
 Loering v. Marsh, 6 Wallace, 337 ; Academy v. Clemins, 50 Mo. 
 167 : Gillman v. Hamilton, 16 111. 231. 
 
84 CHARITY. 
 
 in its scope, or requires so small an amount to satisfy 
 it, that it would be absurd to allow a large fund be- 
 queathed to a particular charity to fall into it. If a 
 large sum were given to endow a college and the resi- 
 due bequeathed for the support of three poor alms- 
 women, or to provide coals at Christmas for ten poor 
 persons, it would be manifestly absurd, .supposing the 
 cy-pres doctrine to be established at all, to withhold the 
 application of it in instances of this kind. 
 
 In In re Ovey, Broadbent v. Barroiv (29 Ch. D. 560), 
 where a legacy had been left to an opthalmic hospital 
 [ -fa 28 ] which had ceased to exist at -fa the time of the testator's 
 death, it was held that the testator had no general in- 
 tention of benefiting blind persons, but that his sole in- 
 tention was to benefit a particular hospital if it were in 
 existence and capable of receiving his bounty, a^nd that 
 accordingly the legacy lapsed. 
 
 In In re White's Trusts (33 Ch. D. 449) the legacy 
 was to a company to build almshouses for the benefit of 
 certain poor persons indicated, when a proper site could 
 be obtained. No site had been obtained and there was 
 no reasonable prospect of obtaining one, and there was 
 no income obtainable to maintain the almshouses. It 
 was held that the fund was a lapsed legacy and fell into 
 the residue. 8 
 
 In Pease v. Pattinson (32 Ch. D. 154) the Court de- 
 clined to apply the cy-pres doctrine to the Hartley Col- 
 liery Fund, which was raised by voluntary subscriptions 
 and vested in trustees for the relief of the sufferers by 
 the Hartley Colliery accident and their families. In 
 Spiller v. Maude (32 Ch. D. 185, n.) Jessel, M. K., con- 
 sidered that no distinction could be drawn between the 
 portion of the funds of the York Theatrical Fund So- 
 ciety arising from voluntary subscriptions and that aris- 
 ing from the contributions of members, and that the 
 whole must be applied cy-pres. 
 
 In Biscoe v. Jackson (35 W. E. 152) a testator di- 
 rected £10,000 to be applied as to £4000 in the estab- 
 lishment of a Soup Kitchen and Cottage Hospital for 
 the parish of Shoreditch " in such a manner as not to 
 violate the Mortmain A.cts," and as to £6000 and any 
 unrequired residue for the salaries of a nurse' and sur- 
 geon and for the necessities and benefit of the hospital. 
 It was found impossible to apply any part of the money, 
 as land in mortmain could not be obtained forthebuild- 
 
 8 If upon the failure of a specific charitable bequest it appears 
 that the testator's intention was that the fund was to pass into 
 the residuary estate it will be upheld. 
 
CHAKITY. 85 
 
 irigs contemplated by the testator. The Court held 
 there was a general charitable intention, that the trusts 
 should be executed cypres, and directed a scheme to be 
 settled. 
 
 As to mixing two charity funds, see Lord Provost of 
 Edinburgh v. Lord Advocate (L. R. 4 App. Cas. 823). 
 
 Ordinarily, says Mr. Tudor (Charitable Trusts, p. Payment of 
 257, n.), when the Court of Chancery is in possession fund with- 
 of a fund given to a charity either with or without the out scheme, 
 interposition of individual trustees, it will not part with 
 such fund until a scheme is settled for its administra- 
 tion. Where however a fund is given to a corporation 
 or a treasurer or officer of a charitable institution in 
 England for a charitable purpose (unless upon different 
 trusts from those of the general funds of the institu- 
 tion), the Court of Chancery will order it to be paid to 
 the corporation, &c, without the settlement of a scheme. 
 
 This subject was recently considered in In re Lea, 
 LeaY. Cooke (34 Ch. D. 528), where a legacy had been 
 bequeathed " for the spread of the gospel " to General 
 Booth, who was the general superintendent, with abso- 
 lute control of a religious unincorporated society. The 
 Court held that it was clear that the testator intended 
 to trust General Booth with the application of the leg- 
 acy in furthering the objects of the society, that no dis- 
 tinction was to be made between capital and income, and 
 that the legacy ought to be paid to him without a 
 scheme. 
 
 * Charity. [ * 29 ] 
 
 The Mortmain Act. 
 
 ATTREE v. HAWE. 
 (9Ch. Div. 337.) 
 
 Railway debenture stock is not an interest in Principle. 
 land within the meaning of the Mortmain Act, 1 
 and may be given by will for charitable pur- 
 poses. 
 
 A testator left debenture stock in several railway Summary ot 
 companies created under the Companies Clauses Act, facts ' 
 
 'The statutes of the Mortmain Act have not been adopted in 
 the United States. 
 
CHARITY. 
 
 Conflict of 
 
 authority 
 
 settled. 
 
 [•30] 
 
 1863, to certain corporations for charitable purposes. 
 The Court of Appeal decided that the legacies were 
 valid. 
 
 The immediate question before the Court of Appeal 
 in this case was whether a gift of railway debenture 
 stock to a charity was valid. On this subject there had 
 been a direct conflict of authority (see the previous cases 
 collected in the argument), and in the present case the 
 Court of Appeal overruled the decisions in Ashton v. 
 Lord Langdale (4 De G. & Sm. 402) and Chandler v. 
 Howell (4 Ch. D. 651). In order to decide the point 
 before it, the Court of Appeal found it necessary to go 
 back to first principles, and to refer to the Act itself as 
 well as the decisions upon it, and their judgment con- 
 tains a most valuable exposition of the law upon the 
 subject. 
 
 The policy of the Mortmain Act (9 Geo. II. cap. 36) 
 is indicated in its preamble as follows : — 
 
 " Whereas gifts or alienations of lands, tenements, or 
 hereditaments in mortmain are prohibited or restrained 
 by Magna Charta, and divers other wholesome laws, as 
 prejudicial to and against the common utility, never- 
 theless this public mischief has of late greatly increased 
 by many large and improvident alienations or disposi- 
 tions made by languishing and dying persons or by 
 other persons to uses called charitable uses, to take 
 place after their deaths to the disherison of their lawful 
 heirs." 
 
 "It had from the earliest times," said James, L.J., 
 " been the policy of the Common Law as interpreted by 
 the judges to discourage the inalienability of land, and 
 this altogether irrespective of the peculiar mischiefs 
 supposed to arise from the vesting of lands in mort- 
 main which deprived the Sovereign and the lords of the 
 profitable incidents of feudal -^ tenures, and this policy 
 in more modern times approved itself to the legislature. 
 It was deemed in itself a mischief that land should be 
 rendered inalienable, and the legislature found the mis- 
 chief was being mischievously increased in one particu- 
 lar way, that is to say, it was found that dying persons 
 were, sometimes from spontaneous weakness, and some- 
 times from their readiness to yield to the many in- 
 fluences which can be brought to bear on persons in ex- 
 tremis, too easily minded to give lands to charitable 
 uses (words of the widest signification) and to be pos- 
 thumously benevolent at the expense of their lawful 
 
CHARITY. 87 
 
 heirs. And this was the mischief and sole mischief 
 which the legislature set itself to prevent, viz., to pre- 
 vent the increase of inalienable land through the weak- 
 ness of or practices upon dying persons, or through 
 posthumous charity. And upon examination of the 
 enactments, it will be found that the Act is in entire 
 consistency with the recital. In the Act there is no 
 prohibition of gifts of land by deed inter vivos, but 
 there are regulations securing that such gifts shall not 
 be in substance posthumous merely by avoiding the 
 , form. There is no prohibition of any amount of testa- 
 mentary charity confined to pure personal property." 
 
 Passing on from the general policy of the Mortmain Railway de- 
 Act to the particular question before him, Lord Justice bentures. 
 James at first considered the nature of railway deben- 
 tures, and his observations on this point have always 
 been considered as indicating his opinion that railway 
 debentures are not within the prohibition of the Mort- 
 main Act. The nature of these securities had been 
 carefully considered in previous decisions, and particu- 
 larly in the celebrated decision of Gardner v. London, 
 Chatham and Dover Railway Company (L. K. 2 Ch. 
 201). A debenture holder could not take or touch the 
 soil of the lands required and used for the actual work- 
 ing of the railway, nor the soil of any surplus lands 
 which had been acquired, but .were not required for 
 actual use, nor the rolling stock, nor could he by him- 
 self or his receiver get the management of the line, nor 
 do anything in derogation of the authority of the statu- 
 tory managers who could not delegate to any one else 
 their powers, nor shift their responsibility. Dealing Debenture 
 then with the subject of debenture stock, which seemed stock. 
 he said to be so called on the lucus a non lucendo prin- 
 ciple, because it is anything but a debenture, the Lord 
 Justice said that in the case of debenture stock there is 
 no debt except as to the annual interest, the capital 
 cannot be called in and cannot be paid off. It is a 
 right to a perpetual annuity payable out of the concern. 
 There is no conveyance or assignment of anything to 
 the stockholder or to any trustee for him. There is an 
 entry in the books of the concern that there is so much 
 debenture stock on which there is so much to be paid 
 half-yearly to the holders, just like the entry of the 
 National Debt in the great books at the Bank of Eng- 
 land. It is nothing but preference stock with a special 
 preference, " the debenture stock is a charge on the net 
 profits and earnings of a trading corporation, and is no 
 more land, tenement, or hereditament, or any interest 
 
88 
 
 CHARITY. 
 
 [•31 J- 
 
 Jurisdiction 
 
 Charities a 
 creation of 
 statute. 
 
 What are 
 charites.. 
 
 in land, tenement, or hereditament, or charge or incum- 
 brance affecting land, tenement, or -j^ hereditament, 
 than the share stock in such corporation is, or a bond 
 or other debt due from a man who has got real prop- 
 erty is." 
 
 The Court of Chancery, as was laid down, had an in- 
 as to charities herent jurisdiction with regard to charities generally 2 
 (Incorporated Society v. Richards, ID. & War. 258, 
 308; Attorney -General v. St. John's Hospital, Bedford, 
 2 De Gr. J. & S. 621), and one of the subjects specially 
 assigned to the Chancery Division is " the execution of 
 trusts charitable." The subject of charities is indeed 
 essentially a creation of statute. Charities are con- 
 trolled by statute (1) in their very definition, (2) with 
 regard to dispositions of property for their benefit, (3) 
 with regard to their regulation and control. 
 
 (1) What are charities? The Court (9 Ves. 405) re- 
 gards all objects as charitable which are (a) expressly 
 enumerated in the old statute of charitable uses (43 
 Eliz. c. 4), or which are (b) deemed by analogy within 
 its spirit of intendment. The charitable objects enum- 
 erated (a) by the statute of Elizabeth are as follows: 
 " Relief of aged, impotent and poor people; mainte- 
 nance of sick and maimed soldiers and mariners, schools 
 of learning, free schools and scholars in universities, 
 repair of bridges, ports, havens, causeways, churches, 
 sea-banks and highways, education and preferment of 
 orphans, relief, stock or maintenance for houses of cor- 
 rection, marriages of poor maids, supportation, aid and 
 help of young tradesmen, handicraftsmen and persons 
 decayed, relief or redemption of prisoners or Captives; 
 aid or ease of any poor inhabitant concerning payments 
 of fifteens, setting out of soldiers, and other taxes." 3 
 
 Among those objects which have been regarded (b) 
 by analogy as within the equity of the statute, may be 
 mentioned gifts in aid of poverty and education, religion, 
 and for all beneficial public works,' e.g. improving towns, 
 paying off the National Debt, Royal Humane Society, 
 &c, &c, and see the cases collected in Tudor's Real 
 Property Cases, 3rd ed. pp. 535 et seq. 
 
 2 The jurisdiction of the Court of Chancery in cases of charita- 
 ble trusts does not depend upon the statute of 43 Elizabeth c. 4, 
 but exists independently of it. Videl v. Girprd's Ex'trs, 2 
 Howard, 128. 
 
 3 The statute of 43 Elizabeth was intended to collect and ar- 
 range the charitable uses rather than to create them. For exam- 
 ples of charitable uses see Evangelical Association's Appeal, 11 
 Casey, 316; Adve v. Smith, 44 Com. 60; Babb v. Heed, 5 Rawle, 
 151. 
 
CHARITY. 89 
 
 (2.) Dispositions in favour of charities. These are Dispositions 
 controlled by a series of Acts of which the principal are in favour of 
 9 Geo. II. c. 36 (commonly, though improperly, called cnariti es. 
 the Mortmain Act), considered in the leading case, 24 
 Vict. c. 9, 27 Vict. c. 13, and 31 & 3'2 Vict. c. 44, all of 
 which will be found considered in the notes to Corbyn 
 v. French, in Tudor' s Keal Property Cases, 3rd ed. p. 
 545, and see Williams on Real Property, 16th ed. p.. 87. 
 
 The Mortmain Act has received a very strict inter- 
 pretation, and not only have gifts of land by will, 
 whether freehold, copyhold, or leasehold, been held 
 void, but also gifts of rents and profits, growing crops, 
 money secured by mortgage or charge of land, money 
 to arise from the sale of land even if the conversion has 
 been directed by a former instrument; gifts of money 
 to be laid out in the purchase of land; gifts of arrears 
 of rent however have been held to be good. See Tudor's 
 Real Property Cases, 3rd ed. p. 553; Tudor's Charita- 
 ble Trusts, 2nd ed. p. 65; Seton on Decrees, 4th ed. p. 
 593. 
 
 In Ashivorth v. Munn (15 Ch. Div. 363), where the 
 testator gave his -^ interest in the proceeds of the sale [ -JL- 32] 
 of real estate which was held as partnership property 
 to a charity (see as to the conversion of partnership 
 property, post, p. 200), the bequest was held to be void. 
 James, L.J. (after qualifying (p. 369) certain expres- 
 sions which he had employed in Attree v. Hawe), 
 pointed out that though the partnership property was 
 converted as between the real and personal representa- 
 tives of the testator, it yet, unlike a share in a joint 
 stock company, fell under the provisions of the Statute 
 of Mortmain, and said that " if such a bequest was held 
 valid, it would govern the case of a partner who by rea- 
 son of the insolvency of his partners was really and 
 substantially the sole owner of the partnership assets 
 including the freeholds." 
 
 It was held in In re Christmas, Martin v. Lacon (33 
 Ch. Div. 332) that a bond by Harbour Commissioners 
 in the form prescribed by their Act was not within the 
 Mortmain Act. 
 
 Gifts to charities are also invalid which come within Money to be 
 the converse case expressly embraced by the Act, of laid out in 
 money directed to be laid out in land. In In re Cox, land - 
 Cox v. Davie (7 Ch. D. 204), a bequest of money to a 
 municipal corporation for the erection and endowment 
 of a dispensary was held invalid, though the Corpora- 
 tion already held land in mortmain available for the 
 purposes of the bequest. In this case it was laid down 
 
90 CHARITY. 
 
 that the rule to be collected from the cases, and in par- 
 ticular Philpott v. St. George's Hospital (6 H. L. C. 338) 
 and Pratt v. Harvey (L. R. 12 Eq. 544) was that either 
 the land must be so indicated as that you can say that 
 it is not within the Statute of Mortmain, or the direc- 
 tion must be that you must not lay out the amount of 
 the legacy upon any other land than that which is 
 already in mortmain. 
 
 In In re Hedgman, Morley v. Croxon (8Ch. D. 156), 
 a bequest of money to trustees 4 to be applied in " sup- 
 porting or founding" schools for poor children in a 
 particular parish where a school already existed for the 
 prescribed purpose, was held good as an alternative 
 trust, i.e. it was to be read not as a trust to " support 
 and found," but literally, and as a gift to support did 
 not imply the purchase of land or a house, it was not 
 obnoxious to the statute. 
 
 In In re Watts, Cornford v. Elliott (29 Ch. Div. 947), 
 the decisions in Attree v. Havee and Ashworth v. Munn, 
 ubi supra, were considered. A testator was entitled to 
 £800 secured by mortgage of the interests under a 
 marriage settlement, part of which was invested on pure 
 personalty, and part under a power in the settlement 
 on mortgage of real estate. He bequeathed to chari- 
 ties " such part of his residuary estate as could by law 
 be so bequeathed." It was held, following Brook v. 
 Badley (L. R. 3 Ch. 672), that the £800 was an inter- 
 est '' in land within the meaning of the Mortmain Act, 
 and that there could' not be any apportionment so as to 
 make part of the fund available for the charity." The 
 whole mortgage debt is charged on realty as well as on 
 pure personalty, and what the appellant asks us to do 
 is not to apportion, but to marshal. Where a sum of 
 [ *fc 33] . money is given which is -fa charged both on land and 
 personalty, so that the whole is recoverable out of the 
 land, I think there ought not to be an apportionment 
 in order to take the bequest out of the statute. As to 
 marshalling in favour of "a charity, see post, p. 224. 5 
 
 It has been held that a trust for keeping up family 
 
 4 A gift for a charity generally must be made to trustees, and 
 in this way the mischief of turning the court into a trustee for 'a 
 general charity is avoided. McGirr v. Aaron, 1 Penna. 49. The 
 trust will not however be suffered to fail for want of a trustee. 
 Perry on Trusts, Sec. 722. 
 
 6 As a general rule assets will not be marshalled in favor of a 
 charity for a court of equity will not set up a rule in equity con- 
 trary to the common rules of the court, for the purpose of' sup- 
 porting a bequest which is contrary to law. Note to Aldrich t>. 
 Coop, 2 Lead. Cas. Eq. 103 (4th English Ed.) 
 
CHARITY. 91 
 
 tombs is void, but a trust for keeping in repair a painted 
 ■window or monument in a church (this being consid- 
 ered for the benefit of the public) is -valid. Lewin 
 on Trusts, 8th ed. p. 106. In In re Vaughan, Vaughan 
 v. Thomas (33 Ch. D. 187), the authorities are discussed, 
 and the following are stated to be charitable objects: 
 the repair of a parsonage, the repair of a church, the 
 repair of ornaments of a church. 6 
 
 A gift not exceeding £500 to repair a churchyard is 
 good under the Church Building Act (43 Geo. III. c. 
 N 1Q8), but a legacy to keep a family vault in repair does 
 not fall within this statute. In re Vaughan (ubi su- 
 pra). 
 
 It must be remembered that the cy-pres doctrine, as 
 to which see ante, does not apply to bequests which are 
 made void by "the Mortmain Act, p. 23, and therefore a 
 bequest of money to be laid out in land is not executed 
 cypres, i.e. applied to an allowed charitable purpose, 
 but an express gift over, in case the charitable gift can- 
 not by law take effect, is valid. Jarman on Wills, 4th 
 ed. vol. i. p. 250. 
 
 (3.) "As to the statutory control and regulation of Statutes 
 charities." The principal statutes coming under this relating to 
 head are Sir Samuel Bomilly's Act- (52 Geo. III. c. charities - 
 101), which enables relief to be given in simple cases, 
 questions of construction, matters involving internal 
 regulations of charities, &c. ; and the Charitable Trusts 
 Acts, 1853 to 1869 (16 & 17 Vict c. 137; 18 & 19 Vict. 
 c. 124; 23 & 24 Vict. c. 136; 25 & 26 Vict. c. 112; 32 
 & 33 Vict. c. 110). 
 
 Sect 17 of the Charitable Trusts Act, 1853, provides 
 that: — Before any proceeding (not being an application 
 in any suit or matter actually pending) for relief, order, 
 or direction as to any charity, or its property or in- 
 come, can be commenced, presented, or taken, by any 
 person, he must give notice of it in writing to the 
 Board (of Oharity Commissioners), fully stating its 
 nature and purpose. 
 
 It was held in Glen v. Gregg (21 Ch. Div. 513), ob- 
 serving on Attorney -General v. Sydney Sussex College 
 (15 W. R. 162), (quoted in the notes, p. 514), that an 
 action to remove a minister of a building registered as 
 a place of religious worship, and for administering its 
 trust-deed, did not require the Commissioners' sanation. 
 In Benthall v. Earl of Kilmorey (25 Ch. Div. 39), a 
 resident medical officer brought an action against the 
 committee of an hospital to obtain a declaration that he 
 6 Decamp v. Dobbins, 29 N. J. Eq. 36. 
 
92 EQUITABLE WASTE. 
 
 was entitled to hold his office during good behaviour, 
 and to restrain them from ejecting him ; and the Court 
 of Appeal held that if the action had any other object 
 than to prevent the exclusion of the plaintiff, it required 
 the Commissioners' certificate, and see Brittain v. Over- 
 ton (25 Ch. D. 41, n ). 
 
 Under these Acts orders of the Charity Commission- 
 ers can be enforced by the Chancery Division as if the 
 [ -Jc 34] offending party were -^ guilty 6f a contempt of court. 
 Order lv. of the Eules of the Supreme Court, rr. 13 and 
 14, prescribes that applications under sect. 28 of the 
 Act of 1853 are to be made by summons, and restricts 
 appeals, unless by leave where the gross annual income 
 has not been declared t6 exceed £100. Order lxv. rr. 
 24 and 25, regulate the fees payable in respect of such 
 proceedings. 
 
 Equitable Waste. 
 
 BAKER v. SEBRIGHT. 
 (13 CH. D. 179.) 
 
 Principle. The principle upon which the Court inter- 
 
 feres with a tenant for life, in respect of equit- 
 able waste, is that he is " using his powers un- 
 fairly,' 1 '' '"making an unconscientious use of his 
 powers.' 1 ' 11 
 
 Summary of Sir John G. Sebright, the equitable tenant for 
 iacts. life without impeachment of waste of the Beech- 
 
 wood Estate had cut down a large amount of tim- 
 ber, part of which was " ornamental " and part of 
 which had been planted or left for ornament or 
 shelter, and applied the proceeds to his own use. 
 It appeared that all the trees so cut were injurious 
 to or impeded the growth of other adjoining trees, 
 so that their removal was " essential for the pur- 
 poses of ornament and protection or shelter," and 
 
 1 If the matters are trifles the court will not interfere. The 
 ingredient of malice does not appear to be necessary to constitute 
 equitable waste; such waste may be committed although no bad 
 motive exists. Hawley o. Clowes, 2 Johns. Ch. 122. 
 
EQUITABLE WASTE. 93 
 
 also " that no trees planted or left standing by any 
 predecessor of the Beechwood Estate for protection 
 or shelter had been cut by the defendant. It was 
 held that Sir J. Sebright was entitled to retain the 
 proceeds of the timber cut. 
 
 The doctrine of equitable waste was spoken of by 
 Lord James Turner in Micklethwait v. Micklethwa.it, 1 
 De G. & J. 504 (cited in the leading -£ case) as "an r JL- 35] 
 encroachment" on the legal rights of the tenant for 
 life, but in the leading case it is more appropriately 
 spoken of as an interference.' " I do not," said Sir 
 George Jessel, " admire that term ' encroachment,' be- 
 cause almost all the doctrines of Equity were interfer- 
 ence with a legal right, and that term is rather a term 
 opprobrium when it ought to be a term of praise. The 
 interference of Courts of Equity with legal rights was 
 for the improvement of the law and the furtherance of 
 justice, and therefore to say that a doctrine of Equity 
 is an ' encroachment ' on a legal right is simply to cen- 
 sure the whole doctrine of Equity." 
 
 An .admirable statement of the grounds upon which Tenant for 
 the Court of Equity interferes to prevent a tenant for life unim- 
 life unimpeachable for waste from committing "equita- peachable 
 ble waste" may be collected from the judgment of Sir or waste - 
 George Jessel in the leading case, 13 Ch. D. pp. 184 & 
 186. Courts of Equity restrained a legal tenant for 
 life unimpeachable for waste from committing those 
 kinds of waste which are called equitable waste on the 
 ground that where the testator (or settlor) gave these 
 powers to the tenant for life, he intended them to be 
 used fairly. Accordingly the tenant for life was re- 
 strained, because though he had legal powers he was 
 not using them fairly, he was making an unconscientious 
 use of his powers, and abusing them so as to destroy 
 the subject of the settlement. 3 The tenant for life was 
 not allowed, as in the case of Varne v. Lord Barnard 
 (2 Vernon, 738), to takeoff the roof of Eaby Castle to 
 
 z " Equitable waste arises where a particular estate is granted 
 without impeachment of waste, hut the particular tenant exer- 
 cises his power in an unconscientious manner." Bispham's Eq. 
 4th Ed. Sec. 434. 
 
 3 A Court of Chancery goes to greater lengths than the courts 
 of law in staying waste. It is a wholesome jurisdiction to be 
 liberally exercised in the prevention of irreparable injury and 
 depends on much latitude of discretion in the court. Kane v. 
 Vanderburgh, 1 Johns. Ch. 4, and Watson v. Hunter, 5 Johns, 
 Ch. 169. 
 
94 EQUITABLE WASTE. 
 
 spite the remainderman, nor to cut down ornamental 
 timber so as to destroy the amenity or beauty of the 
 estate. But beyond that the Court of Equity did not 
 interfere with the tenant for life, even though he ob- 
 tained a profit when he wa3 not acting unconscien- 
 tiously, but only doing what the settlor himself would 
 have done with a view to preserve the beauty of the 
 estate. 
 
 In the present case the Court considered that the 
 tenant for life was entitled to the proceeds of the tim- 
 ber, as he had only done what the Court itself would 
 have ordered to be done. The intention of the testator 
 was that not all the ornamental timber but as much of 
 it as possible should be preserved consistently with al- 
 lowing the natural growth of the trees so far as they 
 would not destroy one another. No Court of Equity 
 or any other Court could control the operations of na- 
 ture, and therefore the Court could not say that the 
 whole of the ornamental timber should be preserved 
 when the trees were growing so thickly as to destroy 
 one another, but what it could do and what it does do, 
 is to preserve it as far as possible. 4 
 
 The Master of the Eolls, however, pointed out that 
 if the remainderman had come to the Court before the 
 tenant for life had cut the timber he might have been 
 entitled to an "injunction." Before the tenant for life 
 cuts ornamental timber, it may be that the remainder- 
 man has a right to the protection of the Court of 
 Equity to prevent his doing it improperly. 5 The tenant 
 for life may say — I do not intend to cut anything but 
 what can properly be cut, but the remainderman can 
 say— 'Tf you once "feut down any of these ornamental 
 [ -Jf 36] trees I cannot -fa put them up again, it may be an ir- 
 remediable mischief, and on the ground that the Court 
 interferes to prevent irremediable mischief it may be 
 that when a tenant for life begins to cut ornamental 
 timber, the Court will only allow him to cut under its 
 direction and supervision as in other cases of adminis- 
 tration. 6 It is not a question merely of his, intending 
 to do right, for however good his intentions, the Court 
 
 4 It is proper for the tenant for life to cut timber for the pur- 
 pose of clearing the land. Lynn's Appeal, 7 Casey, 44 ; Drown 
 v. Smith, 52 Me. 141: Keeler v. Eastman, 11 Vt. 293. 
 
 6 The tenant for life is entitled to reasonable estovers for nec- 
 essary repairs, agricultural implements and firewood. Bispham's 
 Eq., 4th ed. Sec. 432. 
 
 6 A court of equity may grant an injunction under special cir- 
 cumstances. Kerr on Injunctions, 252. 
 
EQUITABLE WASTE. 95 
 
 will see in carrying out the trusts of the will or settle- 
 ment that right is done. 7 
 
 The power of a tenant subject to impeachment of Tenent for 
 waste with regard to timber is very carefully considered life im- 
 in Honywood v. Honywood (L. R. 18 Eq. 306). The P eachable 
 principle upon which the law proceeds is that the ten- for waste - 
 ant for life may not cut timber " except on timber es- 
 tates " ojr fruit trees, but that he is entitled to the crop. 
 The question of what is timber depends first on the 
 law of England, secondly on the special custom of the 
 locality (see p. 309, where the law as to timber is 
 elaborately stated). The next question is what can the 
 tenant for life cut ? The tenant for life can cut all 
 that is not timber with certain exceptions. He cannot 
 cut ornamental trees, and he cannot destroy "germins," 
 as the old law calls them, or stools of underwood, and 
 he cannot destroy trees planted for the protection of 
 banks and various exceptions of that kind; but, with 
 those exceptions, which are waste, he may cut all trees 
 that are not timber, with again an exception that he 
 must not cut those trees which, being under twenty 
 years of age, are not timber, but which would be timber 
 if they were over twenty years of age. If he cuts them 
 down he commits waste, as he prevents the growth of 
 the timber. Then again, there is a qualification that 
 he may cut down oak, ash, and elm under twenty years 
 of age, provided they are cut down for the purpose of 
 allowing the proper development and growth of other 
 timber that is in the same wood or plantation. 
 
 The third question is in whom is the property vested ? Property in 
 If the timber is timber properly so called, that is oak, timber, 
 ash, and elm over twenty years old, unless in exceptional 
 cases, the property in the timber cut down either by the 
 tenant for life or anybody else or blown down by a 
 storm belongs at law to the owner of the first vested 
 estate of inheritance. 
 
 To this there are two exceptions, (1 ) where the re- 
 mainderman, the owner of the first vested estate of in- 
 heritance has colluded with the tenant for life to induce 
 the tenant for life to cut down timber, and then Equity 
 interferes and will not allow him to get the benefit of 
 his own wrong. There is again (2) a second equitable 
 exception, and that is this: that where timber is de- 
 caying or for any special reason it is proper to cut it 
 down, and the tenant for life in a suit properly consti- 
 
 7 Acts which even increase the value of the estate may amount 
 waste. Such waste is called meliorating waste. Kane v. Vand- 
 erburgh (supra). 
 
96 
 
 EQUITABLE WASTE. 
 
 Proceeds of 
 
 sale. 
 
 [*37] 
 
 Orna- 
 mental 
 timber. 
 
 Settled Land 
 Act, 1882. 
 
 tuted to which tho remainderman or the owner of the 
 vested estate of inheritance is a party gets an Order of 
 the Court to have it cut down, there the Court disposes 
 of the proceeds on equitable principles and makes them 
 follow the interests in the estate. In that case, there- 
 fore, the proceeds are invested and the income given to 
 the successive owners of the estate, until you get to the 
 owner of the first absolute estate of inheritance who 
 can take the money. 
 
 ■fc "With regard to trees not timber either from their 
 nature or because they are not old enough or because 
 they are too old, Sir George Jessel expressed an opin- 
 ion that " the property is in the tenant for life, but that 
 if he cut them down wrongfully, and committed waste, 
 equity would probably say that he should not be allowed 
 to take the benefit of his own wrong, and that he should 
 not be allowed to take the property in those trees he 
 cuts down, though he was not aware that the exact point 
 had been ever decided. 
 
 The term " ornamental timber " has received a very 
 liberal interpretation, and includes everything planted 
 as left by the settlor for ornament, and the tenant for 
 life impeachable for waste may be restrained although 
 the mansion house has been pulled down. (Seton on 
 Decrees, pp. 190 et seq., where the authorities are col- 
 lected. Kerr on Injunctions, 2nd ed. p. 93.) 
 
 The Court cannot determine what is ornamental tim- 
 ber, that being merely a matter of taste ; and what was 
 planted for ornament must be considered as ornamental. 
 Lord Mahon v. Lord Stanhope (3 Madd. 423, n.); Coffin 
 v. Coffin (Jac. 70). 
 
 In Loivndes v. Norton (6 Ch. D. 139) timber had been 
 cut " not otherwise than in due course of manage- 
 ment" by the equitable tenant for life, who was prin- 
 cipally interested, the proceeds had been paid into 
 Court, and the income paid to her, and it was held on 
 her death that the next tenant for life being without 
 impeachment of waste was entitled to the corpus of 
 the fund. Now the subject of the cutting and sale of 
 timber by a tenant for life of settled estate is specially 
 dealt with by the Settled Land Act, 1882, so that 
 Lowndes v. Norton would appear to be no longer law. 
 Sect. 35 of the Settled Land Act, 1882, provides : 
 
 (1) Where a tenant for life is impeachable for waste 
 in respect of timber, and there is on the settled land 
 timber ripe and fit for cutting, the tenant for life, on 
 obtaining the consent of the trustees of the settlement 
 
EQUITABLE WASTE. 97 
 
 or an Order of the Court, may cut and sell that timber, 
 or any part thereof. 
 
 (2) Three-fourth part of the net proceeds of the sale 
 shall be set aside as and be capital money arising under 
 this Act, and the other fourth part shall go as rents and 
 profits. 
 
 It may also be noticed that "planting" (which is no 
 longer confined, as in the Settled Estates Act, 1877, to 
 planting for shelter) is enumered among the authorized 
 improvements to which capital trust money may be ap- 
 plied under sect. 25, while sect. 28 (sub sect. 2) de- 
 clares that the tenant for life or any of his successors 
 as aforesaid shall not cut down or knowingly permit to 
 be cut down, except in proper thinning, any trees 
 planted as an improvement under the foregoing pro- 
 visions of this Act. See as to waste, timber, &c, when 
 infants are entitled, sect. 42 of the Conveyancing Act, 
 1881. 
 
 In In re Harrison, Harrison & Harrison (28 Ch. Div. 
 220) an estate, part of which consisted of larch plan- 
 tations was settled as personalty, and a very great num- 
 ber of the trees had been blown down by extraordinary 
 gales. The Court proceeded on the principle of "strug- 
 gling to -fa prevent accident from interfering with the [ -JL- 38] 
 rights of parties," and decided that the proceeds of the 
 larch trees blown down by the gale did not belong to 
 the equitable tenant for life but must be invested, and 
 fixed an annual sum to be paid to the tenant for life out 
 of the income, and, if necessary, the capital of the in- 
 vested fund ; subject to the right of the trustees to 
 have recourse to the fund in order to replant the plan- 
 tations. 
 
 In/re re Ainslie, Swiriburn v. Ainslie (30 Ch. Div. 485), 
 the Court of Appeal decided, on the principle quid- 
 quid plantatur solo, solo cedit, that if a tree was at- 
 tached to the soil it was real estate, and if severed, per- 
 sonalty ; and that the degree of attachment or sever- 
 ance was a question of fact in the case of each partic- 
 ular tree. 
 
 The subject of ameliorating waste, that is waste Ameliorat- 
 which so far from doing injury to the inheritance im- in S waste, 
 proves the inheritance, was considered in Doherty v. 
 Allman (3 App. Cas. 709). There a lessee considered 
 that it would be beneficial to convert certain store build- 
 ings which had fallen into disrepair into dwelling- 
 houses, which would much increase their value, and was 
 proceeding to so convert them. The lessor commenced 
 
 7 MODERN EQUITY. 
 
EQUITABLE WASTE. 
 
 Judicature 
 Act, 1873. 
 
 proceedings to restrain, alleging waste, but the Court 
 declined to interfere by injunction. 8 
 Permissive It was held in Powys v. Blagraves (4 De G.M. & G. 448) 
 waste. that the Court will not interfere by injunction to pre- 
 
 vent mere permissive waste. 9 The subject of permis- 
 sive waste in cases where an express duty to repair is 
 imposed by the instrument which creates the trust upon 
 the tenant was considered in Woodhouse v. Walker (5 
 ,Q. B. D. 404). 
 Mines and The question of opening and working mines and 
 
 quarries. quarries by a tenant for life impeachable for waste was 
 considered in Elias v. Snowdon Slate Quarries Co. (4 
 App. Cas. 454), where the law was stated to be, that the 
 fact that a mine or quarry had been opened for a re- 
 stricted or definite purpose does not give a right to 
 work for commercial profit, but when the mine or quarry 
 is once opened the sinking of a new pit in the same 
 vein or the breaking ground in a new place in the same 
 rock is not necessarily the opening of a new mine or a 
 new quarry (pp. 465, 466). 
 
 Sect. 25 of the Judicature^ Act, 1873, sub-sect. 3, pro- 
 vides that " an estate for life without impeachment of 
 waste shall not confer or be deemed to have conferred 
 upon the tenant for life any legal right to commit waste 
 of the description known as equitable waste, unless an 
 intention to confer such right shall expressly appear by 
 the instrument creating such estate." The result of the 
 authorities as to the legal position of a tenant for life 
 unimpeachable of waste with- which equity interferes 
 in case of equitable waste on the principles just stated 
 is thus summed up in Tudor Real Property Cases 3d edit, 
 (p. 112) : " He may fell timber, 10 open new mines or 
 pits, and will have full property in the produce, as will 
 also be the case where timber trees or timber parcel of a 
 house are blown down ; his interest however does not 
 arise until the severance takes place." And the effect 
 [ -^- 39] of the above -fc provisions in the Judicature Act would 
 seem to be that the instrument creating the estate may 
 confer upon the tenant for life a power of committing 
 equitable waste from which he would be restrained if 
 
 8 The court will not generally interfere to prevent meliorating 
 waste. Kerr on Injunctions. 
 
 * Where the tenant for life allows buildings to decay by neglect- 
 ing to repair them, there is generally no remedy in equity, but in 
 certain cases an injunction may issue. Cannon o. Barry, 59 
 Miss. 289. 
 
 10 The tenant for life cannot out down more timber than is nec- 
 essarv for the enjoyment of his estate. Livingstone v. Reynolds, • 
 26 Wend. 115. 
 
PENALTIES AND FORFEITURES. 99 
 
 the estate was only given in the ordinary form without 
 impeachment of waste. On the other hand, in the ab- 
 sence of the expression of such intention the tenant for 
 life has no longer any legal right to commit " equitable 
 waste." It has been pointed out, Trower's Prevalence 
 of Equity, p. 76, that tenancies for years and in tail 
 after possibility of issue extinct, are not within the 
 provisions of this section, though probably brought 
 within it by the operation of sect. 25, sub-sect. 11, of 
 the Judicature Act, 1873, providing that when there is 
 a variance between the rules of law and equity, the 
 rules of equity shall prevail ." 
 
 Penalties and Forfeitures. 
 
 WALLIS v. SMITH. 
 (21 Ch. Div. 243.) 
 
 The Court in deciding whether a sum of Principle. 
 money payable on breach of a condition is to 
 he treated as a penalty or as liquidated dama- 
 ges^ proceeds on the principle that the primary 
 object is to ascertain the intention of the par- 
 ties' but in ascertaining that intention the 
 Court will have regard to what it sees to be the 
 consequences, and to the principles (summed up 
 in the leading case in four propositions) estab- 
 lished by decided cases. 
 
 Wallis contracted to sell an estate to Smith for Summary of 
 
 £70,000 which was to be gradually expended by lacts - 
 
 Smith in building on the estate. £5000 was to be 
 
 deposited in part paynfent of the £70,000, and £500 
 
 of the deposit was to paid on the execution of the 
 
 11 A devisee of a contingent remainder cannot maintain an ac- 
 tion for damages in the nature of waste. Sager, Guardian v. 
 Galloway, 3 Amerman (Pa.), 500. 
 
 1 Equity will relieve against a penalty but not against stipu- 
 lated or liquidated damages. Skinner v. Dayton, 2 Johns. Ch. 
 526. 
 
 2 Streeper v. Williams, 12 Wright (Pa.), 454; Chase v. Allen, 
 13 Gray, 45. 
 
100 
 
 PENALTIES AND FORFEITURES. 
 
 contract. Among many stipulations of various de- 
 grees of importance it was agreed that if Smith 
 should commit any substantial breach of the con- 
 tract in not diligently carrying out the works, or in 
 [ J^- 40] 3^-not performing any of its provisions, the £5000 or 
 the unpaid balance of it, should be forfeited " as 
 liquidated damages." 
 
 Smith neither paid the £500 nor performed any 
 part of the contract. Held, by the Court of Appeal, 
 that Wallis was entitled to enforce the payment of 
 the, £5000 as liquidated damages. 
 
 In this case Jesse], M.B., elaborately reviewed the 
 authorities bearing on the question whether a sum stip- 
 ulated to be paid on the breach of a condition in a con- 
 tract is to be treated as a "penalty," against which the 
 Court will grant relief, or as "liquidated damages," 
 which the Court will enforce. The result of the cases 
 on the subject, which were divided into four groups, is 
 summed up as follows: — 
 Penalty. I- "Where a sum of money is stated to be payable 
 
 either by way of liquidated damages or by way of 
 penalty for breach of stipulations, 3 all or some of which 
 are, or one of which is for the payment of a sum of 
 money of. less amount," the sum stipulated to be paid 
 is treated as penalty, only the actual damage can be re- 
 covered, the Court will not sever the stipulations! If 
 any one of the stipulations is for the payment of a sum 
 of money of less amount than the penalty named, then 
 the proviso is bad. This proposition is established by 
 a series of decisions beginning for this purpose with 
 Astley v. Weldon (2 B. & P. 346), including KembleY. 
 Farren (6 Bing. 141), (a case of the greatest import- 
 ance, and always treated as a leading authority on the 
 subject) and ending with the decision of the Court of 
 Appeal in In re Newman (4 C]a. Div. 724)/ 
 Doubtful II- The law is doubtful with regard to cases "where 
 
 cases. the amount of damages is not ascertainable 5 per se, but 
 
 b The use of the words " stipulated damages" will Dot deter- 
 mine the rule to be applied, that depends upon the nature of the 
 contract. See Morris v. McCoy, 7 Nevada, 399; Hamaker «.. 
 Schroers, 49 Mo. 406. 
 
 4 Accident was the origin of the jurisdiction of chancery upon 
 the subject of penalties but now the jurisdiction embraces all 
 questions as to penalties. 1 Spencer's Eq. 629, etc. 
 
 5 Rogan v. Walker, 1 Wis. 527. 
 
PENALTIES AND FORFEITURES. 101 
 
 where the amount of damages for a breach of one or 
 more of the stipulations either must be small, or will 
 in all human probability be small — where it is not ab- 
 solutely necessary that they should be small, but it is 
 so near to a necessity, having regard to the probabili- 
 ties of the case, that the Court will presume it to be so." 
 With regard to this class of cases, which lie on the 
 borderland between the cases falling under class I. and 
 those falling under class III., Jessel, M.R., pointed out 
 that there were dicta in the reported cases on both sides, 
 and that consequently the matter was open for discus- 
 sion. These cases, he said, fell within "the principle, 
 if principle it be, of a large sum being a penalty for 
 non-payment of a smaller sum," but they also fall with- 
 in the principle of the cases in class III. 
 
 III. Where the damages for the breach of each stip- Liquidated 
 ulation are unascertainable or not readily ascertainable, damages, 
 but the stipulations may be of greater or less import- 
 ance, or of equal importance — i.e. of varying import- 
 ance, as it is expressed in another portion of the judg- 
 ment, -frthe sum stipulated to be paid has always been [ -^- 41] 
 treated as liquidated damages. The decisions are uni- 
 form on the point, though there are certain dicta in the 
 reported cases to' the contrary. 
 
 IV. Where a deposit is to be forfeited for the breach Liquidated 
 of a number of stipulations, some of which may be tri- damages, 
 fling, some of which may be for the payment of money 
 
 on a given day, the bargain of the parties is to be car- 
 ried out, and the sum is to be treated as liquidated 
 damages. 6 
 
 The Master of the Rolls then applied these principles 
 to the case before him, which he said was characterized 
 by the following circumstances: (1) There was no as- 
 certainable definite sum of a less amount than the sum 
 named payable under it as a single condition ; it conse- 
 quently did not fall under the first group of cases. ,' 
 
 (2) It was not a case in which one or more of the stip- 
 ulations could be treated as of trifling importance ; it 
 consequently did not fall within the dicta in group II. 
 
 (3) It was a case in which the stipulations varied in 
 importance, and the damages were substantial; he 
 therefore held that the sum stipulated was to be treated 
 as liquidated dairag'-s. 
 
 "I have always t. ought," said Jessel, M. R., "and 
 still think, that it is of the utmost importance as re- 
 
 6 The Plank Road Company v. Murray, 15 111. 3P7 ; Robinson 
 v. Loomis, 1 P. F. Sm. 78 ; The People v. The Supreme Court of 
 N. Y., 19 "Wend. 104. 
 
102 ' PENALTIES AND FORFEITURES. 
 
 gards contracts between adults — persons not under dis- 
 ability, and at arm's length — that the Courts of law 
 should maintain the performance of the contracts ac- 
 cording to the intention of the parties ; ' that they should 
 not overrule any clearly-expressed intention on the 
 ground that judges know the business of the people 
 better than the people know it themselves. I am per- 
 fectly well aware that there are exceptions, 8 but they 
 are exceptions of a legislative character." 
 
 In the recent case Lord Elphinstone v. Monkland Iron 
 Co. (11 App. Cas. 332), where the decision of the Scotch 
 Court was reversed, the principle was laid down by the 
 House of Lords that: — \Vhen one lump sum is made 
 payable by way of compensation on the occurrence of 
 one or more or of all of several events, some of which 
 may occasion serious and others but trifling damage, 
 the presumption is that the parties intended the sum 
 to be penal and subject to modification, but where the 
 payments stipulated are made proportionate to the ex- 
 tent to which the contractors may fail to " implement " 
 or fulfil their obligations, and they are to bear interest 
 from the date of the failure, payments so adjusted with 
 reference to the actual damage are liquidated damages. 
 It is satisfactory to observe, with regard to the decisions 
 of the English Courts on the subject of penalties, that 
 one of the Law Lords cited with approval the dictum 
 of Lord Bramwell in Betts v. Burch (4 H. & N. 511), 
 and In re Newman (4 Ch. Div. 734), that "by some 
 good fortune the Courts have in the majority of cases 
 gone right without knowing why thjsy did so." 
 Forfeiture of The law on the subject of forfeiture of deposit was 
 deposit. very carefully considered in Haive v. Smith (27 Ch. Div. 
 
 89). In that case on a sale of real estate the purchaser 
 paid a sum of money which was stated in the contract 
 to be paid as a deposit, and in part payment of the 
 [ "^42] -jf purchase- money. It was also agreed that the pur- 
 chaser should pay the balance of the purchase-money 
 on a day named, and that if the purchaser should fail 
 to comply with the agreement the vendor should be at 
 liberty to resell and to recover any deficiency in price 
 as liquidated damages. The purchaser did not pay his 
 purchase-money though an extended time was granted 
 to him, the vendor re-sold the property at the original 
 
 7 A man cannot escape from the specific performance of an 
 agreement by electing to pay the penalty for the breach. Brown 
 v. Bellow, 4 Pick. 179 ; Canal Co. v. Sansom, 1 Binney, 70. 
 
 8 See Williams v. Green, 14 Ark. 315 ; Pearson o. Williams, 26 
 Wend. 630. 
 
PENALTIES AND FORFEITURES. 103 
 
 price. It was held, distinguishing the previous case of 
 Palmer v. Temple (9 Ad. & E. 508), where the clause 
 was different, as it provided that if • either vendor or 
 purchaser made default a certain sum should be paid 
 by way of liquidated damages, that as the purchaser 
 had failed to perform his contract in a reasonable time 
 he had no right to a return of the deposit. 9 In this 
 case the previous cases are reviewed, and, it is pointed 
 out that there is comparatively little authority on the 
 subject in equity cases, 10 which is accounted for by 
 the fact that the question of a return of deposit is es- 
 sentially a common law claim, and has seldom arisen 
 in equity except in bankruptcy matters. 11 
 
 " In order to enable the vendor to forfeit the deposit 
 there must be Acts on the part of the purchaser which 
 not only amount to delay sufficient to deprive him of 
 the equitable remedy of specific performance, but which 
 would make his conduct amount to a repudiation on 
 his part of the contract, the purchaser must have lost 
 his right to specific performance in equity and his right 
 to sue for. damages at law." 12 (27 Ch. Div. pp. 95 and 
 103. ) See further on the subject of deposits, Depree 
 v. Bedborough (4 Griff. 479); Lethbridge v. Kirkman 
 (25 L. J. Q. B. ,89); Ex parte Barrett (L. R. 10 Ch. 
 512); Thomas v. Broivn (1 Q. B. D. 714); and see also 
 Clerke & Humphry's Sales of Land, pp. 109 et seq. 
 Howe v Smith has very recently been followed in Sopei 
 v. Arnold (35 Ch. D. 384). 
 
 The principle of relief against forfeiture has been re- Relief 
 peatedly recognized and controlled by the legislature. against 
 The Common Law Procedure Act, 1852 (superseding 4 forfelture - 
 Geo. II. c. 28, which was repealed by the Statutory Re- 
 vision Act, 30 & 31 Vict. c. 59), regulates the procedure 
 in ejectment for non-payment of rent by providing that 
 " In case the lessee or his assignee, or other person 
 claiming or deriving under the lease, shall permit and 
 suffer judgment to be recovered on such trial in eject- 
 ment, and execution to be executed thereon, without 
 paying the rent and arrears, together with full costs, 
 and without proceeding for relief in equity within six 
 
 9 Equity will not generally grant relief in cases of forfeiture 
 ■growing out of a breach of any specific act. Reeves v. Toulman, 
 25 Ala. 452. 
 
 10 Equity will not lend its aid to actively enforce a forfeiture. 
 Warner v. Bennett, 31 Conn. 468 ; Smith v. Jewitt, 40 N. H. 534. 
 
 11 Oil Creek R. R. Co. v. Atlantic and Great Western R. R. Co., 
 7 P. F. Sm. 65 ; Gordon v. Lowell, 21 Me. 251 ; Beecher v. Id., 
 43 Conn. 556. 
 
 12 Brown v. Vandergift, 30 P. F. Sm. 142. 
 
104 
 
 PENALTIES AND FORFEITURES. 
 
 [*48] 
 
 Relief 
 against 
 forfeiture of 
 leases. 
 
 months after such execution executed, the lessee, his 
 assignee, &c, shall be barred and foreclosed from all 
 relief or remedy -in law or equity." This is supple- 
 mented by the Common Law Procedure Act, 1860 (23 
 & 24 Vict. c. 126), sect. 1, which provides "in the case 
 of any ejectment for a forfeiture brought for non-pay- 
 ment of rent, the Court or a judge shall have power, 
 upon rule or summons, to give relief in a summary 
 manner, up to and within the like time after execution 
 executed, and subject to the same terms and conditions 
 in ail respects as to payment of rent, costs, and other- 
 wise as in the Court of Chancery." I3 
 
 •fc These enactments, the effect of which has been 
 expressly preserved by the Conveyancing Act (44 & 45 
 Vict. c. 41, sect. 14, sub- sect. 8), have been recently 
 considered in Croft v. London and County Banking 
 Co. (14 Q. B. Div. 347), where it was held that when 
 the plaintiff had obtained judgment upon forfeiture 
 for non-payment of rent but without costs, the defend- 
 ant might obtain relief without any costs except those 
 of the summons for relief. 
 
 The 14th section of the Conveyancing Act, which 
 came into operation 1st January, 1882, confers upon 
 the Court a very important, power of relieving against 
 the forfeiture of leases. By sub-sect. 9 it is retrospec- 
 tive and cannot be excluded by any stipulation to the 
 contrary. The section provides, sub sect. 1, that a 
 right of re-entry or forfeiture under any provision or 
 stipulation in a lease for a breach of any covenant or 
 condition in the lease shall not be enforceable by ac- 
 tion or otherwise unless and until the lessor serves on 
 the lessee a notice specifying the particular breach 
 complained of, and if the breach is capable of remedy, 
 requiring the lessee' to remedy the breach, and in any 
 case requiring the lessee to make compensation in 
 money for the breach, and the lessee fails within a 
 reasonable time thereafter to remedy the breach if it is 
 capable of remedy, and to make reasonable compensa- 
 tion in money to the satisfaction of the lessor for the 
 breach. 
 
 Sub- sect. 2. Where a lessor is proceeding by action 
 or otherwise to enforce such right of entry or forfeiture, 
 the lessee may in tbe lessor's action, if any, or in any 
 action brought by himself, apply to the Court for re- 
 lief, and the Court may grant or refuse relief as the 
 Court, having regard to the proceedings and conduct 
 of the parties under the foregoing provisions of this 
 
 13 See last case cited. 
 
PENALTIES AND FORFEITURES. 105 
 
 'section, and to all the other circumstances, thinks fit, 
 and in case of relief may grant it on such terms, if 
 any, as to costs, expenses, damages, compensation, pen- 
 alty, or otherwise, including the granting of an injunc- 
 tion to restrain- any like breach in the future, as the 
 Court in the circumstances of each case thinks fit. 
 
 Sub-sect. 3 gives very extensive meanings for the 
 purposes of the section to the terms "lease," "lessee," 
 and " lessor," (but note here that the section does not 
 apply when the tenancy is only under an agreement 
 and no rent has been paid, CoqtsivorthyY. Johnson, 55 L. 
 J. Q. B. 220) ; by sub-sect. 4 the section is to apply even 
 though the proviso of re-entry or forfeiture is inserted 
 in the lease " in pursuance of the direction of any Act 
 of Parliament," while by sub-sect. 5 a lease "limited 
 to continue " until breach of covenant is to take effect 
 as a lease to continue for any longer term for which it 
 could subsist, but determinable by a proviso for re- 
 entry on such a breach. It must, however, be borne in 
 mind that by sub-sect. 6 the section is not to extend: — 
 
 (1.) To a covenant or condition against the assign- 
 ing, under-letting, parting with the possession, or dis- 
 posing of the land leased, or to a condition for for- 
 feiture on the bankruptcy of the lessee (see Ex parte 
 + Gould, In re Walker, 13 Q. B. D. 454), or on the [ -fc 44] 
 taking in execution of the lessee's interest; or, 
 
 (2.) In case of a mining lease to a covenant or con- 
 dition for allowing the lessor to have access to or in- 
 spect books, accounts, records, weighing machines, or 
 other things, or to enter or inspect the mine or the 
 workings- thereof. 
 
 The following cases have been decided upon this 
 section: — 
 
 In Quitter v. Mapleson (9 Q. B. Div. 672) the Court 
 relieved under this section in respect of breaches of a 
 covenant which had been committed before the Act 
 came into operation. 
 
 In- North London Land Co. v. Jacques (32 W. B. 
 283) it was held that the giving of an intelligible 
 notice stating the particulars required by sub-sect. 1, 
 and apprising the lessee of the intention of the lessor 
 to enforce his rights is a condition precedent to the 
 right to claim a forfeiture. It was, said the Court, the 
 intention of the legislature that there should be rea- 
 sonable compensation, or that the covenant should be 
 performed that has been broken, so that the lessor may 
 be in the same position as he would have been if the 
 breach had not taken place. 
 
106 
 
 PARTITION. 
 
 Settled Land 
 Act, 1882. 
 
 It was held, however, that this provision does not apply 
 to a case of forfeiture for rent, Scott v. Matthew Brown & 
 Company (51 L. T. 746), and by parity of reason it would 
 seem also to have no application to covenants for breach 
 of which relief cannot be granted under the section. 
 
 Sect. 51 of the Settled Land Act, 1882 (45 & 40 Vict. 
 c. 38), declares that any clause of forfeiture "purport- 
 ing or attempting " to forbid the exercise of any powers 
 under the Act as far as it purports or attempts, or is 
 intended to have, or would or might have the operation 
 aforesaid, shall be deemed to be void; and sect. 52 pro- 
 vides that notwithstanding anything in a settlement, the 
 exercise by a tenant-for-life of any power under this 
 Act shall not occasion a forfeiture. 
 
 Sect. 51 was considered in In re Pagefs Settled Es- 
 tates (30 Ch. D. 161). In that case there was a "resi- 
 dence clause" by which not only a life estate, but a 
 power of appointment amongst children, was made 
 conditional on residence for not less than three months 
 in the year on some part of the testator's estate, and 
 in default of compliance the estate was to go over. It 
 was held that the condition "was void, and that the 
 tenant for life was entitled to exercise the power of 
 sale, and receive the income of the proceeds. 
 
 [*45] 
 
 ■^- Partition. 
 
 Principle. 
 
 Summary of 
 facts. 
 
 PEMBERTON v. BARNES. 
 (L. E. 6 Ch. 685.) 
 Section 4 of the Partition Act, 1868, is impera- 
 tive, and when the parties entitled to a moiety 
 or upwards desire a sale, 1 the Court must order 
 it unless some good reason is shown to the con- 
 trary, or unless the persons objecting offer, un- 
 der sect. 5, to purchase the shares of the parties 
 ■ desiring the sale, when the Court has a discre- 
 tion to authorize the purchase? 
 
 The Tring Park Estate, which formed the princi- 
 
 1 Persons 'who have limited estates may become parties to a bill 
 for partition and the estates of such parties only may be divided ; 
 or, if it is deemed desirable, the parties in remainder or reversion 
 may be brought in, and the decree will then be binding upon 
 them, and the whole estate may be divided. Dake u. Hague, 11 
 Out. (Pa.) 67. 
 
 2 The method of making a partition in equity is by first ascer- 
 
PARTITION. 107 
 
 pal subject of this suit, consisted of a mansion-house 
 of great antiquity and historical interest, and 3600 
 acres of land, of which about 300 formed a deer 
 park, together with manorial rights extending over 
 thirty square miles of country. The plaintiffs, who 
 were entitled to one moiety of the estate, filed their 
 bill against the trustees of the estate and Dr. and 
 Mrs. Barnes, who were entitled to the other moiety, 
 claiming a sale of the property, or in the alterna- 
 tive, a partition; There was the uncontradicted 
 evidence of two eminent land agents that the Tring 
 Park Estate was peculiarly well adapted for the es- 
 tablishment of a nobleman or gentleman of large 
 fortune, that if sold as a whole it would realize a 
 much larger price than if sold in moieties, that it 
 could not be satisfactorily partitioned, and that if 
 it were put in one lot a u fancy price " would be 
 obtained ; but. the defendants Dr. and Mrs. Barnes 
 objected to the estate being sold in order that the 
 plaintiffs might obtain a fancy price, and denied 
 that a sale would be more beneficial than a parti- 
 tion. 
 
 + Malins, Y.C., held that the plaintiffs were not [-^46] 
 entitled to a sale against the wish of the defendants, 
 but Lord Hatherly, L.C., being of opinion that no 
 " real good plain cause " had been shewn against a 
 sale, reversed the decision of the Vice-Chancellor 
 and ordered a sale, with liberty to the defendants 
 to bid. 
 
 In 1833 the common law writ of partition was abol- jurisdiction, 
 ished by 3 & 4 Wm. IV. c. 27, and the Court of Chan- 
 cery obtained exclusive jurisdiction with regard to par- 
 tition. The Court, however, had no jurisdiction as to 
 copyholds (though specific ' performance of an agree- 
 ment for partition of copyholds might have been en- 
 
 taining therights of the several persons interested, and then issu- 
 ing a commission to make the partition required. If the propor- 
 tion to which the different parties are entitled appear upon the 
 pleadings, no reference to a master to ascertain them is neces- 
 sary ; otherwise, such a reference will be ordered. Kispham's 
 Eq. Sec. 490, Daniels' Chancery Practice, 1121. 
 
108 PARTITION. 
 
 forced, Bolton v. Ward (4 Hare, 530)), until 1841, 
 when jurisdiction was conferred by 4 & 5 Vict. c. 35 
 (amended by 21 & 22 Vict. c. 94). It was a well-es- 
 Old law. tablished principle that partition was a matter of right, 
 and that inconvenience, however great, was no objec- 
 tion. 3 The only sort of tenure, Lord Coke said, that 
 could not be the subject of partition was a castle, that 
 being necessary for the defence of the realm. This 
 sometimes led to very absurd results, as in the case 
 mentioned in the argument in Turner v. Morgan (8 
 Vesey, 143), where the partition of a house was carried 
 into effect by building up a wall in the middle, 4 and in 
 Turner v. Morgan itself (ubi supra), where defendant 
 objected on the ground that the Commissioners had al- 
 lotted to the plaintiff the whole stack of chimneys, all 
 the fire-places, the only staircase, and all the conven- 
 iences in the yard.' Lord Eldon at once overruled the 
 objection. In this case his Lordship, though out of 
 mercy to the parties he allowed the case to stand over, 
 experienced nothing of his usual difficulty in coming 
 to a decision. He had, he said, no doubt what was to 
 be done (and see Parker v. Gerard and Warner v. 
 Baynes (Amb. 236-589), where all objections of a util- 
 itarian character were overruled by the Court of Chan- 
 cery and partition decreed). Now all these cases of 
 Partition hardship are removed by the Partition Acts of 1868 
 Act, 1868. and 1876. Sect. 3 of the Partition Act, 1868, gives the 
 Court power in a partition suit to direct a sale and dis • 
 tribution of the proceeds (with all necessary or proper 
 consequential directions) instead of a partition at the 
 request of any party interested, notwithstanding the 
 dissent or disability of any others of them, if the Court; 
 is satisfied that a sale and a distribution of the proceeds 
 would be more beneficial for the parties interested than 
 a division of the property by reason of (1) the nature 
 of the property to which the suit relates ; (2) the num- 
 ber of the parties interested or presumptively interested 
 therein ; (3) the absence of disability of some of the 
 parties interested ; or (4) of any other cir^'imstances. 5 
 See Sykesv. Schofleld (14 Ch. D. 629), vuerethe form 
 of judgment is given, and the practice as to actions 
 commenced in District Registries laid down, and note 
 
 3 To invoke the equitable remedy in the form of partition is a 
 matter of right and not of grace. Howey v. Goings, 13 111. 95; 
 Wright v. Marsh, 2 Greene (Iowa), 94. 
 
 *Wood v. Little, 35 Maine, 107; Scoville r. Kennedy, 14 
 Conn. 339; Smith v. Id., 10 Paige, 470. 
 
 5 The court will generally make such a partition as will best 
 preserve the value of the property. Daniels' Ch. Prac. 1130. 
 
PARTITION. 109 
 
 that a person ■^ entitled in remainder or reversion can- [ -^ 47] 
 not commence an action for partition 6 Evans v. Bags- 
 hawe, L. R 5 Ch. 340), that proceedings on behalf of 
 a lunatic are irregular (Half hide v. Robinson L. E. 9 
 Ch. 373); and see as to partition where property is in 
 mortgage 7 Waitev. Bingley (21 Ch. D. 674). By sect.. 
 1 of the Partition Act, 1876, an action for partition is 
 to include an action for sale and distribution of the 
 proceeds. 
 
 Sect. 4, which was made the subject of an extremely 
 careful consideration in the leading case, provides that 
 in a suit for partition where, if this Act had not been 
 passed, a decree for partition might have been made, 
 then if the party or parties interested, individually or 
 collectively, to the extent of one moiety or upwards in 
 the property to which the suit relates, request the Court 
 to direct a sale of the property, 8 and a distribution of 
 the proceeds, instead of a division of the property be- 
 tween or among the parties interested, the Court shall, 
 unless it sees good reason to the contrary, direct a sale 
 of the property accordingly, and give all necessary or 
 proper consequential directions. 
 
 In the leading case Lord Hatherley explained the 
 principle on which this section is based as follows : — 
 "The scope of the enactment appears to me to be this: 
 there being reasons which may induce some of the part 
 owners to wish for a partition, and others to wish for a 
 sale and a division of the proceeds, the Legislature 
 says that if the votes are equally divided, one half 
 of the persons interested in the property desiring a 
 sale, and the other half a partition, then the half 
 requiring the sale shall have the preponderating 
 voice, and the Court shall be bound to give them 
 a sale wholly irrespective of the 3rd section. But 
 still there is a certain discretion left to the Court 
 so that the Court can refuse a sale where it is mani- 
 festly asked for through vindictive feeling, or is on 
 any other ground unreasonable." And see Wilkinson 
 
 6 Persons who have limited estates may become parties to a 
 bill for partition, and the estates of such parties only may be di- 
 vided, or the parties in remainder or reversion may be brought 
 in, and the dercee will then be binding upon them, and the 
 whole estate may be be divided. Dukew. Hague, 11 Out. (Pa.), 
 67. 
 
 7 Mortgagees of tenants in common are not proper parties to a 
 bill for partition. Long's Appeal, 27 P. F. Sm. 151 ; Thruston v. 
 Minke, 32 Md. 571. 
 
 8 In most of the United States the Courts of Equity have 
 power to order a sale in partition. Agar v. Fairfax, 2 Lead. Cas. 
 Eq. 4th American Ed., note. 
 
110 ■ PARTITION. 
 
 v. Jdberns (L. E. 16 Eq. 14) and Rowe r. Gray (5 Ch. 
 D. 263). 
 
 In In re Dyer, Dyer v. Paynter (33 W. E. 806), the 
 plaintiff, who was entitled to one-sixth of the property, 
 asked for a sale; but this application was opposed by 
 the majority of the parties interested, whose shares 
 practically amounted to four sixths. The property in 
 question was in various parts of the country, and there 
 was evidence that the time was a favourable one for 
 sale; that there was no prospect of the property in- 
 creasing in value, but some probability of its diminish- 
 ing. The judge before whom the case originally came 
 refused to order a sale, and the Court of Appeal declin- 
 ed to interfere with his decision. 
 
 In Porter v. Lopes (7 Ch. D. 358) the estate consist- 
 ed of a freehold mansion-house and one hundred and 
 eighty-five acres, of which some fifty-eight formed the 
 site of the mansion-house, grounds, and park. The 
 property was surrounded by a larger estate, of which 
 the plaintiff was tenant for-life. The plaintiff and de- 
 fendant were entitled in equal moieties, and the plain- 
 tiff asked for a partition by which the mansion-house 
 and part of the contiguous land should be allotted to 
 him. He offered to pay such a sum as might be neces- 
 sary for equality of partition, and he alleged that the 
 [ -Jf 48 ] value of the property would be -^ depreciated if it were 
 severed from the larger estate. The defendant claimed 
 that the property should be sold, and himself offered to 
 purchase the mansion-house and adjacent lands. It 
 was held by the Court that there was no good reason 
 against a sale, and a sale was accordingly ordered. 
 
 Jesse], M. E., pointed out that the effect of section 4 
 of the Partition Act, 1868, was that the defendant had 
 an absolute right to a sale unless the Court saw some 
 good reason against a sale. He then proceeded to state 
 some reasons which might be conclusive against a sale. 
 The property might be of a peculiar description so as 
 not to be actually saleable, or, at the time when the 
 sale was asked for, might be temporarily very much de- 
 preciated in value, ex. gr. in a case where there were 
 two ironworks of equal value and one party desired a 
 partition and the other a sale, and at that time the fur- 
 naces were out of blast, the Court would not order a 
 sale. 
 
 Again, the nature of the property might be a good 
 reason why the Court should not direct a sale. It might' 
 be a mere dependance on another property almost value- 
 less except in connection with that property, ex. gr. a 
 
PARTITION. Ill 
 
 portion of a room or a portion of a warehouse which 
 might be of great value to the owner, but of very little 
 value to anybody else. 
 
 An argument of some general interest was also urged 
 against a sale in this particular instance. It was said 
 that the mansion-house was part of an old family pro- 
 perty, and that there was therefore a certain pretium 
 affectionis with which the Court ought not to interfere. 
 This however was answered by the two considerations, 
 first, that the ancestral wishes of the family need not 
 be considered, as the ancestor himself, had he been so 
 minded, might have kept the property together, and, 
 secondly, that so far as pretium affectionis was concern- 
 ed, there was no reason why the Court should incline 
 to the plaintiff rather than the defendant, as both were 
 large landowners in the neighbourhood. 
 
 Another reason which weighed heavily against the 
 plaintiff was that it was impossible to partition the 
 property in the way he suggested so as to give him the 
 mansion-house and the fifty-eight acres of land, because 
 a large sum would in that case be required to be paid 
 for equality of partition. 9 
 
 In Biggs v. Peacock (20 Ch. D. 200; 22 Ch. Div. Trust for 
 284) a testator devised real estate to trustees on trust sale - 
 to sell at their discretion, and invest the proceeds for 
 the benefit of his widow for life, and then for his child- 
 ren. All of the children attained vested interests, and 
 were sui juris. The widow and three of the children 
 brought an action for partition, the other three children 
 and the surviving trustee (other than the widow) ob- 
 jected that the Court had no jurisdiction to order a 
 partition, as the trust for sale under the testator's will 
 was still subsisting. It was decided that there was no 
 jurisdiction to order a partition, as the trustees had a 
 trust for sale and not a mere power, although, as the 
 Court pointed out, all the parties, being of age an'd sui 
 juris, might have called upon the trustees to convey the 
 estate to them, yet -^- none of them had a right, in op- [ -^ 49 ] 
 position to the others, to insist upon partition, which 
 would be dealing with the property as if it were real 
 ' estate; and see Swaine v. Denby (14 Ch. D. 326) ; Tay- 
 lor v. Grange (15 Ch. D. 165). 
 
 In Boyd v. Allen (24 Ch. D. 622) real estate had been Power of 
 devised to trustees upon trust for a number of persons sale, 
 as tenants in common. The will contained a power of 
 
 9 The Courts have the power to award owelty in partition; this 
 is a sum of money given for the purpose of equalizing the 
 shares. Smith v. Smith, 10 Paige, 470. 
 
Act 1868. 
 
 112 PARTITION. 
 
 sale which the trustees were willing to exercise, and in 
 an action for partition by one of the beneficiaries it was 
 contended that the Court had no jurisdiction to inter- 
 fere with the discretionary power of the trustees. The 
 Court, however, overruled the objection, and ordered a 
 partition. 
 
 The right to partition, it said, being one of the inci- 
 dents to the property in an undivided share, was not 
 taken away by a discretionary power of sale given to 
 the trustees. It was added, however, that a different 
 view of the case might have been taken if the action 
 had been brought vexatiously, or when the trustees were 
 about to exercise their power. 
 Sect. 5 Sect. 5 provides in effect that in every case of an ac- 
 
 Partition fj on f or partition (whether a sale would or would not 
 be more beneficial to the parties than a partition), if 
 any party, whether owning more or less than a moiety, 
 requests a sale, the Court shall have a discretion to or- 
 der a sale, unless the parties opposing are willing to 
 take his share at a valuation (per Lord Blackurn, Pitt 
 v. Jones (5 App. Cas. 659). This section was consid- 
 ered in the leading case, and in Drinkwater v. Ratcliffe 
 (L. R. 20 Eq. 528), Williams v. Games (L. E. 10 Ch. 
 204), and by the House of Lords in Pitt v. Jones (ubi 
 supra), where the previous authorities are reviewed. In 
 that case the owners of three-sixteenths of a property 
 sought to have a sale, the owners of thirteen-sixteenths 
 objected and offered to purchase the shares of the 
 others at a valuation. The Court of Appeal were of 
 opinion that by reason of the number of the parties in- 
 terested, and the nature of the property, there ought to 
 be a sale, and the majority of the House of Lords (Lord 
 Hatherley dissenting), affirmed their decision. It was 
 pointed out that sects. 3, 4 and 5, though to be con- 
 strued together, are independent enactments, and Lord 
 Blackburn said that the meaning would have been more 
 obvious had sects. 5 and 3 changed places. The mean 
 ing of sect. 5 he took to be that if a party presses for a 
 Bale, and the Court thinks that the opposing parties in 
 fairness ought either to buy him out or consent to a sale,it 
 may order a sale unless they will agree to take his share 
 at a valuation, in which case the party requesting a sale 
 may either accept that valuation or not. If he does 
 not choose to accept that valuation, he cannot be forced 
 to do so; but will then have his common law right to a 
 partition I0 
 
 10 Where the defendants are desirous that there shall be no 
 partition of their several shares, the partition may be confined 
 
PARTITION. 113 
 
 Sect. 6 enables the Court to allow parties interested 
 to bid on terms. 
 
 Sect. 7 extends sect. 30 of the Trustee Act, 1850 (en- 
 abling the Court to declare parties to be trustees), to 
 cases where the Court directs a sale, and this power is 
 not limited to persons under disability. 11 Beckett v. 
 Sutton (19 Ch. D. 646). 
 
 ■^ Sect. 8 incorporates sects. 23, 24 and 25 of the [ ~k 50] 
 Settled Estates Act, 1856 (19 & 20 Vict. c. 120) as to 
 the proceeds of sale. See In re Barker (17 Ch Div. 
 241), Men-daunt v. Benwell (19 Ch. D. 302); and see 
 as to a judgment for partition operating as a conver- 
 sion, post, p. 197. It was held in Strugnell v. Strug- 
 nell (27 Ch. D. 258), that where some of the benefici- 
 aries are not sui juris and the trustees have no power 
 of sale under their trust deed, the Court cannot order a 
 sale out of Court. 
 
 Great difficulties have arisen in the practice with re- Partition 
 gard to the service of proceedings upon persons inter- ^ c< > 1876 - 
 ested in the property, the Partition Act, 1876 (39 & 40 
 Vict. c. 17), section 3, specifies the grounds upon which 
 service of notice of the judgment on the hearing may 
 be dispensed with, viz. the impossibility of effecting 
 services on all the persons requiring to be served by 
 the Partition Act, 1868, or of serving them except at 
 an expense disproportionate to the value of the prop- 
 erty ; and elaborate provisions are made in the next sec- 
 tion, sect. 4, for cases where orders thus dispensing 
 with service are made, and see as to the practice, Phil- 
 lips v. Andrews (35 W. E. 266); the form of judgment 
 in such a case is considered in Pragnell v. Batten (16 
 Ch. D. 360), where it was held that the Court ought 
 not, in the absence of some of the parties interested, to 
 preface its judgment with an expression of opinion that 
 sale will be more beneficial than division. Order xvi. 
 r. 40, of the rules of the Supreme Court, 1883, enables 
 the Court to direct notice of judgment to be served in 
 partition actions with the same effect as in administra- 
 tion actions. 
 
 to the aliquot share of the complainant. Bispham's Eq. 4th Ed. 
 Sec. 489. 
 
 11 The lands of a decedent were sold by order of court in pro- 
 ceedings in partition and purchased by the husband of one of the 
 heirs entitled to participate, who paid the purchase money except 
 such portions as his wife was entitled to receive ; this she releas- 
 ed to the Master, who made a deed to the husband alone; it was . 
 held that a trust resulted in favor of the wife to the extent of 
 her interest in said real estate. Bigley v. Jones, 4 Amerman 
 (Pa.), 510. 
 
 8 MODERN" EQUITY. 
 
114 PARTITION. 
 
 Sect. 6 of the Partition Act, 1876, provides that a 
 request for sale may be made by a married woman, in- 
 fant, or person under disability. The request for sale 
 by a married woman ought to be made by counsel in- 
 structed by a solicitor, formally authorised and re- 
 quested so to do (Grange v. White, 18 Ch. D. 612, fol- 
 lowing Wallace v. Greenwood (16 Oh. D. 362), where 
 Crookes v. Whitworth (10 Ch. D. 289) was dissented 
 from). The request for sale by an infant may be made 
 by his next friend or guardian ad litem, but will not be 
 granted unless it is for his benefit ( Rimington v. Hart- 
 ley, 14 Ch D. 630). • 
 
 In Leigh v. Dickeson (12 Q. B. D. 194; 15 Q. B. Div. 
 60) tbe plaintiff was' tenant in common of three-fourths 
 of the property, and the defendant, who was lessee of 
 the premises, purchased the interest in the remaining 
 fourth. The plaintiff brought his action for use and 
 occupation, and the question was, whether the defend- 
 ant could counter claim for money expended in reason- 
 able and necessary repairs of the property. It was 
 held that the plaintiff was entitled to recover, and that 
 the defendant had no right of counter claim, his only 
 remedy being in an action for partition. 12 
 Costs. Section 10 of the Partition Act, 1868, enables the 
 
 Court to make such order as it thinks just respecting 
 costs up to the time of the hearing. The general rule, 
 as established by Cannon v. Johnson (L. R. 11 Eq. 90) 
 and Ball v. Kemp- Welch (14 Ch. D. 512), is that the 
 costs should be borne rateably by the parties in pro- 
 [■^51] portion to their -^- interests as declared 'by the judg- 
 ment. The Court however has a discretion on this 
 point. 
 
 The costs of a partition action can only be taxed be 
 tween solicitor and client by the consent of the parties, 
 and in absence of such consent only party and party 
 costs will be allowed (Ball v. Kemp- Welch, Ubi supra) ; 
 and see the cases collected in Seton on Decrees, 4th ed. 
 p. 1018. 
 
 12 A court of chancery will order an account where one joint 
 owner appears to have received more than his share of the pro- 
 fits or rents. Leach v. Beattie, 33 Vt. 195. And in proper cases 
 by decreeing an allowance for money expended in improvement. 
 Dean i-. O'Meara, 47 111. 120; Green v. Putnam, 1 Barb. (S. C.) 
 500; Hall f. Piddock, 6 C. E. Green, 314. 
 
(115) 
 
 Merger of Charges. 
 
 ADAMS .-. ANGELL. 
 (5Ch. Bit. 634.) 
 
 The question whether a charge which is paid Principle. 
 off is merged depends on intention express or . 
 implied} 
 
 Angell mortgaged property first to Adams and then Summary of 
 to Newsom. Adams obtained judgment for fore- facts - 
 closure against Angell and Newsom, and subse- 
 quently entered into an arrangement with Angell's 
 trustee in bankruptcy by which, in consideration of 
 £1380 retained by Adams in full satisfaction of his 
 debt, and of £20 paid to the trustee, the mortgaged 
 property was assigned to Adams, "subject to afore- 
 said claim " of Newsom. It appeared that the 
 amount due to Adams was the full value of the 
 property, and there was a correspondence between 
 Adam's solicitors and the trustee in bankruptcy 
 shewing an intention to keep the first mortgage 
 alive. The Court of Appeal decided that there was 
 no merger of Adams's mortgage. 2 
 
 The generalprinciples on which the Courts of equity 
 have proceeded with regard to the question, whether 
 charges which bave been paid off are to be considered 
 
 1 It is a settled rule of law, that where the legal and equitable 
 title to land becomes vested in the same person the equitable title 
 will merge into the legal title and further than this, the owner 
 of the land also becomes the owner of the mortgage, the two titles 
 will not generally remain alive and distinct but the title as mort- 
 gagee will merge and be swallowed up in the title as owner. 
 Washburn on Real Property, Book 1, Chap. 16, Sec. 6. This is 
 not an inflexible rule however, for it might in certain cases work 
 great hardships for it is in certain cases beneficial for the owner 
 that the mortgage be kept alive. See Cook v. Brightly, 10 Wright 
 (Pa.), 439 ; Evans v. Kimball, 1 Allen, 240. 
 
 2 A mortgage does not necessarily merge or become extinct by 
 being united in the same person with the fee. When a person 
 
116 MERGER OF CHARGES. 
 
 as extinguished, are very fully stated in the judgment 
 in the leading case. 
 [ -^ 52] "^"In a Court of Equity, said Jessel, M.E., it has always 
 
 been held that the mere fact of a charge having been 
 paid off, does not decide the question whether it is ex- 
 tinguished. 3 
 
 He then pointed out that two classes of cases required 
 to be considered, (1) where the charge is paid off by a 
 person having a limited interest, as it is called— e.g. an 
 interest less than an estate of inheritance, of which the 
 common case is a tenant for life; (2) where the charge 
 is paid off by a tenant in tail or in fee. With regard 
 to the first class of cases, the rule is, that if a charge is 
 paid off by the limited owner, without any expression 
 of his intention, he retains the benefit of it against the 
 inheritance. Although he has not declared his intention 
 of keeping it alive, it is presumed that his intention was 
 to keep it alive, because it is manifestly for his benefit.* 
 On the other hand, when the owner of an estate in fee 
 or in tail pays off a charge, the presumption is the other 
 way ; but in either case the person paying off the charge 
 can, by expressly declaring his intention, either keep it 
 alive or destroy it. 5 If there is no reason for keeping 
 it alive then, especially in the case of an owner in fee, 
 in the absence of any declaration of his intention, equity 
 will destroy it; but if there is any reason for keeping it 
 alive, such as the existence of another incumbrance, 
 equity will not destroy it. A charge may be expressly pre- 
 served. In the case of a purchase the purchaser who pays 
 off a charge, though merely equitable, may have it as- 
 ' signed to a trustee for himself, and it will protect him 
 against mesne incumbrances if there are any. 6 If, with- 
 
 beeomes entitled to an estate subject to the charge and keep up 
 the charge. The question in such case is upon the intention, ac- 
 tual or presumed, of the persons in whom the estates are united. 
 Bryan's Appeal, 1 Amerman (Pa. ), 81. 
 
 8 Equity will interpose and keep the two titles alive and dis- 
 tinct unless there is a direct intention in favor of the merger or 
 an intention can be presumed Irom the fact that the merger would 
 be for the advantage of the owner. Pike v. Gleason, 60 Iowa, 
 150 ; Hutehins v. Carlton, 19 N. H. 487 ; Moore v. Bank, 8 Watts, 
 138. 
 
 4 If two estates come into the hands of the same person by oper- 
 ation of law and not by act of the parties, there will be no merger 
 unless both the estates are held in the same right. A' term held 
 by the heir as executor of his ancestor, will not merge in the in- 
 heritance descending upon him. Coke Litt. 338 b. Challis on 
 Law of Real Property, 65 (Text Book Series). 
 
 5 Loomer v. Wheelwright, 3 Sand. Ch. 157 ; Den v. Brown, 2 
 Dutch, 196 ; Van Nest?'. Latson, 19 Barb. (S. C.) 604. 
 
 6 Evans v. Kimball, 1 Allen, 240. 
 
MERGER OP CHARGES. 117 
 
 out going through the ceremony of the assignment of 
 an equitable charge — an assignment which really passes 
 nothing — a declaration is inserted in the deed that the 
 charge shall be treated as remaining on foot for the 
 purpose of protecting the purchaser against mesne in - 
 cumbranees, then the charge is treated as remaining on 
 foot and protects him. If no intention is expressed or 
 implied, as in the leading case, then according to Toul- 
 min v. Steere (3 Mer. 210) the incumbrance which is paid 
 off is merged and the subsequent incumbrancers let in. 7 
 In Chambers v. Kingham (10 Ch. D. 743), the law 
 with regard to mergers in equity was considered with 
 reference to a term of years. Chambers, acting as ad- 
 ministrator for his father, granted an underlease of a 
 term of years which belonged to him as administrator. 
 Soon after the under lessee assigned all the residue of 
 the term which had been thus granted to him to Cham- 
 bers. The question was, whether the term was merged. 
 The Court, in deciding that there was no merger in the 
 present case, stated the general rule to be that where 
 one of the interests is held en autre droit, no merger 
 takes place. 8 I am bound, the judgment continued, to 
 assume that the lease was well granted, and was for the 
 benefit of the estate of which Robert Chamhers the son 
 was administrator ; and if so, the extinction of that 
 term, and with it the extinction of the right to the rent 
 and to the performance of the covenants which were in- 
 cident to that term, would be an injury to the estate, as 
 it would deprive the estate of the benefit which it -^ was [ -X- 53] 
 to derive from the lease. Of course, the judgment then 
 pointed out that " if there were any circumstances which 
 shewed that the lease had been improperly created, or- 
 that the assignment had been improperly taken by the 
 administrator, a right would arise to the persons inter- 
 ested in the estate to set the transaction aside, or to 
 claim the benefit of the lease in which the son had be- 
 come interested. Such circumstances might have con- 
 stituted the son a constructive trustee; but as no cir- 
 cumstances of the sort were shewn, the presumption was 
 bound to be against merger." 
 
 In Bell v. Sunderland Building Society (24 Ch. D. 
 618), the trustee in bankruptcy of the mortgagor had 
 purchased from the first mortgagee certain property 
 which had been twice mortgaged, and the question was, 
 
 7 Perry on Trusts, Sec. 347 ; Spence's Equity, 879, 880. 
 
 8 At law, two estates cannot merge if either one of these estates 
 is held en autre droit. Challis, Real Property, 67 Text Book 
 Series. 
 
118 CHARGES OF COMPANIES. 
 
 how the rights of the second mortgagee (of whom no 
 mention had been made in the deed of purchase) were 
 affected by the transaction. It was held that the first 
 mortgage was not extinguished, and that the right of 
 the second mortgagee to redeem was also unaffected. 
 
 The doctrine of the Court of Equity as to merger 
 has been elevated into peculiar importance by the pro- 
 vision in the 25th sect, of the Judicature Act, 1873, 
 sub-sect. 4, that "there shall not, after the commence- 
 ment of this Act, be any merger by operation of law 
 only of any estate the beneficial interest in which would 
 not be deemed to be merged or extinguished by equity;" 
 as well as by the general provision in sub-sect. 11 of the 
 same section, that in cases of conflict the rules of equity 
 shall prevail. And see Williams on Executors (8th 
 edit. 647, et seq.), where it is pointed out that the effect 
 of these enactments has been to render a great deal of 
 the old learning on the subject obsolete. 
 
 See generally as to merger, notes to Forbes v. Moffatt, 
 Tudor's Eeal Property Oases, 3rd ed. p. 943. The doc- 
 trine of Toulmin v. Steere (ubi supra), as pointed out 
 at p. 964, would seem to be somewhat doubtful; see 
 further on the subject of merger, Watts v. Symes (1 De 
 G. M. & G. 240); Otter v. Vaux (2 K & J. 650); Hay- 
 den v. Kirkpatrick (34 Beav. 645) (in all of which it 
 was held there was no merger); Belaney v. Belaney (L. . 
 R. 2 Ch. 138), Stevens v. Mid-Hants Railway Co. (L. 
 K. 8 Ch. 1064); and as to merger of lease in reversion 
 Lord Dynevor v. Tennant (33 Ch. Div. 420). 9 
 
 [^•54] -jfCliarges of Compait.ies. 
 
 In re SOUTH DURHAM IRON COMPANY. 
 SMITH'S CASE. 
 
 (11 Ch. Div. 579.) 
 The principle that an unregistered mdrtgage 
 or charge given by a joint stock company to a 
 director or person standing in a fiduciary rela- 
 tion to the company cannot be enforced by him, 
 depends upon a personal disqualification which 
 will not be extended to the prejudice of the in - 
 nocent. 
 
 Smith, the managing partner of the firm of Tay- 
 
 9 "William A. Springer's Appeal, 1 Aiuerruan (Pa.), 274. 
 
CHARGES OF COMPANIES. 119 
 
 lor Smith Brothers, and a director of the South 
 Durham Iron Co., Limited, advanced to the company 
 £6000 out of the firm's money. Warrants for iron 
 were deposited with him as security, but no entry 
 whatever with regard to the security was made in 
 the company's register of mortgages. The company 
 went into liquidation, and the Court of Appeal held 
 that Taylor Smith Brothers were entitled to avail 
 themselves of the security. 
 
 Section 43 of the Companies Act, 1862, requires Companies 
 every limited company under that Act to keep a regis- Act, 1862, s. 
 ter of and enter therein, all mortgages and charges 43. 
 specially affecting property of the company, with a 
 short description of the property mortgaged or charged, 
 the amount of the charge created, and the names of the 
 mortgagee or persons entitled to such charges. A 
 penalty not exceeding fifty pounds is imposed on "every 
 director, manager, or other officer" of the company who 
 "knowingly and wilfully authorizes or permits" the 
 omission of such an entry in the register. 
 
 In In re ltnernational Pulp and Paper Company^ 
 Knou-les 1 Mortgage (6 Ch. D. 556), Sir George Jesse! 
 pointed out that the Act inflicted a penalty, a distinct 
 and precise penalty and nothing else, that it was a well- 
 known principle that when an Act of Parliament im- 
 poses a penalty on the doing or omitting to do a par- 
 ticular thing, that is the -^r only penalty, and that he [ -fa 55 ] 
 considered that if the invalidation of the mortgage had 
 been the penalty intended to be imposed, the Act would , 
 have said so. The Court, however, on this subject, to 
 some extent assumed legislative action, and the general 
 principle upon which they have proceeded in dealing 
 with cases arising under this section is thus stated in 
 the judgments of the Court of Appeal in the leading 
 case. 
 
 " I understand," said Lord Bramwell, " the principle 
 of the authorities to be, that where there is a director 
 or officer of the company whose duty it is to see that 
 mortgages or charges are registered, and he has a 
 mortgage or charge which is not registered, there is a 
 personal disability on his part which prevents him 
 setting up that mortgage or charge." 
 
 The case by which this principle is established, or 
 supposed to be established, is much discussed and 
 
120 
 
 CHARGES OF COMPANIES. 
 
 Directors. 
 
 Bankers. 
 
 [*56] 
 
 much criticised in the decision of the Court of Appeal 
 in 1868 in In re Patent Bread Machinery Co., Ex parte 
 Valpy & Chaplin (L. E. 7 Ch. 289). There a solicitor 
 not usually employed by the company was employed to 
 act in a particular matter, and on his requiring secu- 
 rity for costs the company gave him a charge which was 
 never registered. The Court of Appeal held the charge 
 was invalid. James, L. J., said every one standing in 
 a fiduciary position towards the company is bound to 
 see that the company obeys the directions of the legis- 
 lature, and I am of opinion that the failure of the ap- 
 pellant to do so is fatal to his case. It makes no dif- 
 ference that he was not the regular solicitor of the com- 
 pany, he acted as their solicitor in this matter, it was there- 
 fore his duty to see that so far as this particular trans- 
 action was concerned, the register was properly kept. 
 
 Who, then, are they who have been considered by 
 the Courts as in a fiduciary position to a company 
 within the meaning of this Act ? 
 
 The case of directors themselves was considered in In 
 re Wynn Hall Coal Co., Ex parte North and South 
 Wales Bank (L. E. 10 Eq. 515), where it was decided 
 that they ought not to be allowed to set up an un- 
 registered charge against the general creditors. The 
 object of the section, said the Court, is, that a person 
 who is about to have any dealings with a limited com 
 pany may go and inspect the register of mortgages and 
 charges; if he finds the property of the company 
 heavily encumbered, he will probably not have any 
 dealings with them, but if he finds no mortgage or 
 charge registered, he deals with the company as the 
 ' owners of unincumbered property. 
 
 It cannot be permitted that directors, who get a 
 charge on the property of the company, and omit to 
 register it, but keep it as a pocket security concealed 
 from the creditors, should set it up against the gene- 
 ral creditors. 
 
 In In re Native Iron Ore Co., (2 Ch. D. 345). it was 
 held that a debenture given to directors which had 
 been registered, omitting that which was regarded by 
 the Court as the essence of the transaction, viz., a de- 
 scription of the property intended to be charged, was 
 invalid. 
 
 In In re General Provident Assurance Co. (L. E. 14 
 Eq. 507), it was held that bankers were not bound to 
 see that the formalities -^f required by the articles of 
 association upon the execution of mortgage deeds were 
 complied with and their securities were valid. 
 
CHARGES OF COMPANIES. 121 
 
 Shareholders holding debentures were held to be in Share- 
 a similar position, as they had no control over the holders, 
 books, and no duty to perform as to registration. In 
 re General South American Co. (2 Ch. Div. 337). 
 
 In In re Borough of Hackney Neivspaper Co. (3 Ch. 
 D. 669) a company had mortgaged property to two of 
 its directors, who instructed their secretary to register 
 the mortgage, and furnished him with the necessary 
 particulars, but he subsequently refused to do so. Jes- 
 sel, M.R., decided that the directors had done all they 
 could. That they had not "knowingly and wilfully 
 authorized or permitted the omission of the entry on 
 the registry, and accordingly the charge was not in- 
 valid." 
 
 In In re International Pulp and Paper Co., Knoivles' 
 Mortgage (6 Oh. D. 556), a company had mortgaged 
 freehold and leasehold property to Knowle, one of its 
 directors, who afterwards sub- mortgaged to Haworth, a 
 stranger. The company never kept any register of 
 mortgages or charges, and consequently neither of the 
 securities in question was ever registered. In this 
 case Sir George Jessel, confessing his inability to* form 
 any notion of the principle upon which the cases of Ex Principle 
 parte Valpy & Chaplin (ubi supra) and In re Native not ex- 
 Iron Ore Co. (2 Ch. D. 343) were decided, and declin- tended, 
 ing to extend it in any way, gave judgment in favour 
 of the validity of the charge. The Companies Act, he 
 said, imposed a penalty " not exceeding £50," but here 
 he was asked, on the authority of the decision of the ™ 
 
 Court of Appeal, to practically impose a penalty of 
 £17,500, by holding that the penalty for omission to 
 register was to be the loss of the security. 
 
 He then (p. 561) proceeded as follows: — "If there 
 is any principle at all in those decisions ( Ex parte 
 Valpy & Chaplin and In re Native Iron Ore Co. (ubi 
 supra)), it is not that want of registration makes the 
 mortgage void — Lord Justice James in Ex parte Valpy 
 & Chaplin, admits that it does not — but that there is 
 some personal equity against a director or officer of a 
 company which prevents him from setting up such a 
 mortgage himself; but as I understand, that principle, 
 if it exists at all, does not apply to any person claim- 
 ing through a director or officer, but only to the direc- 
 tor or officer himself. In this case the director was in 
 reality nothing more than a bare trustee, having sub- 
 mortgaged to Haworth. Why Haworth should have 
 his security destroyed because Knowle omitted to have 
 his mortgage registered, I am at a loss to understand. 
 
 / 
 
122 CHARGES OF COMPANIES. 
 
 Haworth was neither a director nor an officer of the 
 company, and the Court of Appeal has decided that it 
 is only a director or officer who cannot set up an un- 
 registered mortgage against the creditors of the com 
 pany. The cases referred to are therefore not applica- 
 ble to Haworth." 
 
 In the leading case (11 Ch. Div. 579) the same 
 judge expressed a similar disinclination to extend in 
 any way the principle of Ex parte Valpy & Chaplin: 
 "Is not there," he asked, "a principle of equity that 
 r -fa 57 1 you shall not -^- extend a personal disqualification to 
 the prejudice of the innocent ? I have always consid- 
 , ered that equity sets itself most emphatically against 
 forfeitures and penalties being imposed unless they are 
 imposed in the most direct and unequivocal manner, 
 and I have always considered it to be a principle of 
 equity that where there is a personal equity attaching 
 to a man in relation to property, it is not, as a rule, to 
 affect innocent parties." In this case the loan to the 
 company was by one of its own directors, who was also 
 a partner in the firm advancing the money, and the 
 argument of inconvenience derived from the conse- 
 quences which might arise if a loan made by one of a 
 partnership or company were to be invalidated by rea- 
 son of ■ the non -registration arising from default of a 
 director or partner is thus forcibly stated in the same 
 judgment " If one of those companies were to lend 
 money to an incorporated company with limited liabil- 
 „ ity, and it turned out that one of their shareholders was 
 
 one of the directors of the borrowing company, it would 
 appear very unjust that a man who held perhaps a one- 
 hundred thousandth part of the property of the lending 
 company should, by his omission as manager or man- 
 aging partner of the borrowing company, destroy the 
 security in the hands of the lending company. The 
 same question would arise in the case of joint stock 
 companies formed under the Act of 1862 if the lender 
 company had a director who happened to be also a di- 
 rector in the borrowing company, but the rule would 
 not apply to a shareholder, for a shareholder in these 
 incorporated companies has no share in the manage- 
 ment. This argument from convenience is not to be 
 forgotten, and it makes me the more prepared to h"ld 
 with the Vice-Chancellor that the decisions with regard 
 to personal disqualifications are not to be extended to 
 cases of partnership." 
 
 In Buckley's Companies Acts, p. 148, a variety of 
 other possible "puzzles " are suggested, and the learned 
 
CHARGES OF COMPANIES. 123 
 
 author expresses a doubt whether iD any case which 
 can in any reasonable manner be distinguished from 
 the earlier cases, the principle of those cases will be 
 applied. This observation would seem to be most abun- 
 dantly justified by the latest authorities on the subject, 
 which we shall now proceed to notice. 
 
 In the recent case of In re The Dublin Drapery Co., Recent de- 
 Liiuited, Ex parte Cox and others (13 L. K (Ir.) Gh. cisions. 
 D. 174), the previous authorities on the subject were 
 considered, and it was held that when the regular 
 solicitors of the company, who had no authority or 
 power to make or compel entries, had done their duty, 
 communicating to the directors the necessity and the 
 obligation they were under to keep a register, they were 
 free from any such " personal equity "as in Ex parte 
 Valpy & Chaplin (ubi supra), which would invalidate 
 securities given to them. The same case is also an 
 authority for the proposition that if securities tranfer- 
 able by delivery (and semble any securities) have been 
 properly registered when originally issued, subsequent 
 transfers need not be registered. The moment, said 
 the Master of the Rolls, the amount of it, and of the 
 name of the party to whom -^ it is issued is registered, [ -fa 58] 
 that moment everything which is required by the 43rd 
 section has been done. 
 
 In In re Underbank Mills Company (31 Ch. D. 226), 
 a company in 1874 gave a mortgage for seven years to 
 a partnership consisting of three persons, of whom two 
 were directors of the company. It was never registered, 
 and in 1876 the non-director partner assigned his inter- 
 est to the other two. In 1881 an arrangement was en- 
 tered into to continue the mortgage for another seven 
 years, and the attention of the directors having been 
 drawn to the fact that the mortgage ought to be regis- 
 tered, the secretary made a proper entry in a book 
 which was marked " Register of Transfers." The Court 
 decided that the mortgage was sufficiently registered, 
 as the registration did not require to be made in a sep- 
 arate volume; that it was entitled to the same priority 
 as if a new mortgage had been executed in 1881; and 
 further, that even if there had been no registration the 
 mortgage would have been valid, as it had been origi- 
 nally made to partners, one of whom was not a director. 
 "I am glad," said Pearson, J., "to find that the Court 
 of Appeal has not carried the doctrine of the earlier 
 cases on this subject any further, and I do not desire 
 to extend it to any state of circumstances which is not 
 covered by previous decisions." 
 
124 
 
 INVESTMENT TRUST. 
 
 Debentures 
 and mort- 
 gages. 
 
 The subject of debentures and mortgages created by 
 joint stock companies has been recently considered in 
 Wheatley v. Silkstone and Haigh Moor Coal Co. (29 
 Ch. D. 715), where the previous authorities are reviewed. 
 In that case it was decided that a mortgage on specific 
 property had priority over the "floating security" of 
 debentures. See In re Colonial Trusts Corporation, Ex 
 parte Bradshaw (15 Ch. D. 465), where the mortgage 
 purported to charge the undertaking, hereditaments 
 and effects of the company. And see Ross v. Army and 
 Navy Hotel Company (34 Ch. Div. 43), where "a cov- 
 ering deed" was held to create an equitable charge. 
 
 [*59] 
 
 •fa Investment Trust. 
 
 Principle. 
 
 Summary of 
 facts. 
 
 SMITH v. ANDERSON. 
 (15 Ch. Div. 247.) 
 
 A trust investment association consisting of 
 more than -twenty persons formed for the pur- 
 pose of contributing funds to be invested and 
 managed by trustees for the benefit of the asso- 
 ciation does not require registration under 
 section 4 of the Companies Act, 1862. 
 
 The Submarine Cables Trust was constituted by 
 a deed between six trustees and a covenantee " for 
 and on behalf of all the holders for the time being 
 of the certificates thereinafter mentioned." A num- 
 ber of persons had subscribed for the purchase by 
 the trustees of shares in certain submarine telegraph 
 companies, and each subscriber of £90 received a 
 certificate for £100 nominal and a " coupon of re- 
 version." The trustees were to apply the annual 
 proceeds of the securities after payment of expenses 
 in payment of interest on the nominal amount of 
 the certificates, and apply the surplus in redeeming 
 the certificates. The trustees had also a power ex- 
 ercisable only in certain events, to sell any of the 
 shares, and the proceeds were to be applied in the 
 
INVESTMENT TRUST. . 125 
 
 same manner as the surplus income, unless the 
 trustees by an unanimous resolution, confirmed by 
 the certificate holders at a specially convened meet- 
 ing, determined to reinvest in similar securities. As 
 soon as all the certificates were redeemed the secur- 
 ities were to be realised and the net proceeds divided 
 proportionally among the holders for the time being 
 of the coupons of reversion. The certificate holders 
 were more than twenty in number, and an -^ action [ ^ 60] 
 was brought by one of them on behalf of all the 
 rest, alleging that the association was illegal and 
 claiming to have the funds distributed proportion- 
 ally among the certificate holders. The Court of 
 Appeal (reversing -the decision of Jessel, M. R.) 
 dismissed the action. 
 
 In this case the Court of Appeal reversed the de- 
 cision of Sir George Jessel and disapproved of his 
 previous decision in Sykes v. Beaden (11 Ch. D. 170), 
 and held that the association in question not requiring 
 registration under the Companies Act was consequently 
 legal, and that an action to wind it up could not be 
 maintained. 
 
 The 4th section of the Companies Act, 1862, on Companies 
 which the question turned, provides that no company, Act, 1862, s. 
 association, or partnership, unless it be formed for the 4 - 
 purpose of carrying on the business of banking or is 
 " formed in pursuance of some other Act of Parliament 
 or of letters patent, consisting of more than twenty 
 persons, shall be formed after the commencement of 
 this Act, 2nd November, 1862, for the purpose of car- 
 rying on any other business that has for its object the 
 acquisition of gain by the company, association, or 
 partnership, or by the individual members thereof (a) 
 unless it is registered as a company under this Act, or 
 is formed in pursuance of some other Act of Parliament, 
 or of letters patent, or is a company engaged in work- • 
 ing mines within and subject to the jurisdiction of the 
 Stannaries." 
 
 The Court of Appeal first considered the general aim Aj m f the 
 and scope of this enactment. It was, they said, in- Act. 
 tended " to prevent the mischief arising from large 
 trading undertakings being carried on by large fluctu- 
 ating bodies so that persons dealing with them did not 
 
126 
 
 INVESTMENT TRUST. 
 
 Distinction 
 between 
 company 
 and part- 
 nership. 
 
 [*61] 
 
 Distinction 
 between 
 director and 
 trustee. 
 
 know with whom they were contracting, and bo might 
 be put to great difficulty and expense, which was a 
 public mischief to be repressed." They then pointed 
 out the essential distinction, between a company or as- 
 sociation and an ordinary partnership. " An ordinary 
 partnership," said Lord Justice James, " is a partner- 
 ship composed of definite individuals bound together 
 by contract between themselves to continue combined 
 for some joint object, either during pleasure or during 
 a limited time, and is essentially composed of the per- 
 sons originally entering into the contract with one an- 
 other. A company or association is the result of an 
 arrangement by which parties intend to form a partner- 
 ship which is constantly changing, a partnership to-day 
 consisting of certain members and to-morrow consisting 
 of some only of those members along with others who 
 have come in, so that there will be a constant shifting 
 of the partnership, a determination of the old and a 
 creation of new partnership, and with the intention 
 that so far as the partners can by agreement between 
 themselves bring about such a result, the new partner- 
 ship shall succeed to the assets and liabilities of the 
 old partnership." (See further on the differences be- 
 tween partnerships -fa and joint stock companies the 
 celebrated judgment of the same judge in Baird's Case 
 (L. R. 5 Ch. 25). 
 
 In the present case the management of the affairs of 
 the association was vested in trustees, and here it be- 
 came necessary to consider the broad and essential dis- 
 tinction founded on the very nature of things between 
 the position of a director and that of a trustee. A trus- 
 tee is a man who is the owner of the property and deals 
 with it as principal, as owner, and as master, subject 
 only to an equitable obligation to account to some per- 
 sons to whom he stands in the relation of trustee, and 
 who are his cestuis que trust. The same individual may 
 fill the office of director and also be a trustee having 
 property, but that is a rare, exceptional, and casual cir- 
 cumstance. The office of director is that of a paid ser- 
 vant of the company. A director never enters into a 
 contract for himself, but he enters into contracts for his 
 principal, that is, for the company of whom he is di- 
 rector and for whom he is acting. He cannot sue on 
 such contracts nor be sued on them unless he exceeds 
 his authority. (See as to the personal liability of direc- 
 tors, Buckley on the Companies Acts, pp. 444 et seq., and 
 West London Commercial Bank, Limited, v." Kitson (13 
 Q. B. Div. 360), where directors were held personally 
 
INVESTMENT TRUST. 127 
 
 liable on an acceptance, on the ground of having falsely 
 "represented that they had authority to accept on behalf 
 of the company. 
 
 Supposing, then, said the Court of Appeal, that what is 
 to be done here is to be done by the trustees, is what the 
 trustees are to do under this deed the carrying on a busi- 
 ness ? On this point they held that nothing that was to be 
 done under this deed by the trustees came within the ordi- 
 nary meaning of "business" anymore than what is 
 done by the trustees of a marriage settlement who have 
 large properties vested in them and who have very ex- 
 tensive powers of disposing of the investments, chang- 
 ing the investments and selling them, and reinvesting 
 in other investments according to their discretion and 
 judgment, with or without the consent of the cestuis 
 que trust could be said to constitute a business. The 
 deed in question was merely a trust deed of property 
 for investment, the investment being spread over a num- 
 ber of different securities so as to enable persons who 
 choose to invest their money in this way to avail them- 
 selves, in the words of James, L.J., of " the doctrine of 
 averages," (that is to say) that if a large number of 
 different independent securities of a hazardous descrip- 
 tion were held together the loss upon some would be 
 compensated by the gain on the others, so that a toler- 
 ably uniform average rate of interest would be obtained. 
 The Court took care to point out that if the real object 
 of the deed was that the trustees should speculate in in- 
 vestments even though confirmed iu tbe particular class 
 of investments specified, the case would have stood in 
 a very different position. Here, however, there was 
 nothing of that sort. 
 
 The trustees were not to enter upon a series of acts 
 which if successful, would obtain a gain. They were 
 joined together for the purpose of once for all invest- 
 ing certain money which was delivered -^- into their r JL 62] 
 hands in specified securities with power to vary those 
 securities, but only in certain events and under special 
 circumstances, and not for the purpose of obtaining 
 gain from a repetition of investments. In other words, 
 they were not associated together for the purpose of 
 speculating in shares, buying and selling whenever in 
 their opinion the terms of the market might make it 
 advisable. That was not their business. There was 
 no reason why when they had once made an investment 
 it should under ordinary circumstances ever be changed. 
 Consequently the primary and substantial object of 
 their associating together was not for the purpose of 
 
128 INVESTMENT TRUST. 
 
 carrying on a business which if successful would re- 
 sult in the acquisition of gain. 
 Land In Wigfield v. Potter (45 L. T. N.S. 612) anunregis- 
 
 society. tered freehold land society had for its objects to pur- 
 
 chase an estate, subdivide it into allotments, and then 
 offer the allotments by auction to its members. The 
 Divisional Court decided (following the leading case of 
 Smith v. Anderson) that the society was legal. Grove, 
 J., in delivering judgment, said: "The sole question 
 here is whether this society is an association for the 
 purpose of carrying on a business that has for its object 
 the acquisition of gain, and I am of opinion .that it is 
 not such an association. I read the word ' business ' in 
 the usual sense in which we use it when speaking in 
 an ordinary way, as trafficking and having for an ob- 
 ject the acquisition of gain by buying and selling, and. 
 I think it was so used in the case of Smith v. Ander- 
 son." The judge then expressed an opinion that had 
 this been a society for the purprse of buying and sell- 
 ing at a profit, or buying large pieces of land and then 
 breaking them up into plots and selling them at a profit, 
 that would have been a carrying on of business within 
 the meaning of the section, but this did not appear to 
 be the object of the society. " I do not mean to say," 
 he continued, " that they might not have made a profit, 
 but it does not appear to ine that there is any contem- 
 plation here that the purpose of the society was to make 
 a profit. In one sense it may be said that they made 
 a profit, inasmuch as they might get the land at a less 
 price, but that is not to my mind carrying on a business 
 within the meaning of the Act, but merely an advan- 
 tage obtained in acquiring for themselves what they 
 wanted to acquire " 
 
 , In Crowther v. Thorley (32 "W. E. 330) an unregis- 
 tered land society was held to be legal, though the trus- 
 tees were carrying on a business for the acquisition of 
 gain, the Court considering that the business was car- 
 ried on by them as trustees and not as agents of the 
 society. 
 Loan It was held, on the other hand, in In re Thomas, Ex 
 
 society. parte Poppleton (14 Q. B. D. 379), distinguishing 
 
 Crowther v. Thorley (ubi supra), that a loan society 
 which had originally consisted of only seven persons 
 subsequently increased to over twenty, required regis- 
 tration, although its business was carried on and man- 
 aged by a committee of seven members of the society 
 as its agents. 
 
 In In re Padstow Total Loss, <&c, Assurance Associa- 
 
INVESTMENT TRUST. 129 
 
 tion (20 Ch. Div. 137), in which Brett, L.J., in page Mutual 
 148, retracted some observations made in Smith v. An- Marine 
 derson with regard to mutual insurance companies, Company* 
 -^■the Court of Appeal decided that a mutual marine in- r Jl. 63] 
 surance association which had not been registered un- 
 der the Companies Acts could not be recognized by the 
 Court as having any legal existence, and could not con- 
 sequently be wound up under the Companies Acts. 
 
 The two points which had to be decided were: first, 
 whether it was a company carrying on business ? sec- 
 ondly, whether its object was the acquisition of gain ? 
 The first point was decided in the affirmative on the 
 ground that the members guaranteed the making up 
 of losses, that the society was intended to go on from 
 year to year and last for many years, and that it was 
 governed by a committee who managed the affairs on 
 behalf of all the members. The second point was also 
 decided in the affirmative, that though the object of the 
 association was not the acquisition of gain by the asso- 
 ciation itself, still its object was the gain of the indi- 
 vidual members. 
 
 In Jennings v. Hammond (9 Q. B. D. 225), a number 
 of persons exceeding twenty had formed themselves into 
 a society, the object of which was to raise a fund for 
 the purpose of making advances to members; the fund 
 was put up for auction periodically among the mem- 
 bers, and the highest bidder received the amount on 
 loan. It was held that this society required registra- 
 tion. "It is true that the business of the association 
 is not to lend money generally, but primarily at least 
 only to members of the association, but In re Padstow 
 Total Loss, dtc, Assurance Association {supra) shews 
 that that makes no difference. Those members of the 
 association who are anxious to obtain loans will bid 
 against one another for the money which is put up for 
 sale in accordance with the rules, and the purchase 
 money will be the source of gain to the individual share- 
 holders. The association is therefore one which is for- 
 bidden by the 4th section of the Companies Act." 
 
 In Shaw v. Benson (11 Q. B. Div. 563), the question 
 was whether a trustee of an unregistered loan society 
 consisting of more than twenty members, one of the 
 objects of which was to lend money to its shareholders, 
 could recover on a promissory note which he held as 
 security for moneys advanced by the society. The 
 Court of Appeal held that the society was illegal for 
 want of registration, and that as the trustee could not 
 
 9 MODERN EQUITY. 
 
130 
 
 INVESTMENT TRUST. 
 
 Certificate 
 of incorpora- 
 tion. 
 [*64] 
 
 Non-regis- 
 tration of 
 Companies 
 formed 
 before and 
 after the 
 Act of 
 1862. 
 
 stand in a better position than the society, he could not 
 recover. 
 
 In In re Siddall (29 Ch. Div. 1) the question 'whether 
 a freehold land society, being an association of more 
 than twenty persons formed for the purpose of pur- 
 chasing land, was illegal, came before the Court of Ap- 
 peal in a somewhat singular manner. The point in- 
 volved was whether one of the trustees having become 
 a lunatic, the Court could lend its assistance by making 
 an order vesting the property in new trustees, and thus 
 the legality of the association came to be considered. 
 The Court decided, following the authority of Growther 
 v. Thorley (ubi supra), that the association did not re- 
 quire registration. 
 
 Sect. 18 of the Companies Act, 1862, provides that a 
 certificate of the incorporation of any company, given 
 by the registrar, shall be -fa conclusive evidence that 
 all the requisitions of this Act in respect of registration 
 have been complied with. 
 
 It is, however, of no avail with regard to the ques- 
 tion whether the company was authorized to be regis- 
 tered: In re Northumberland and Durham, District 
 Banking Go. (2 De G. & J. 371); In re Hercules In- 
 surance Co. (L. R. 11 Eq. 321). 
 
 With regard to companies formed before the Act, 
 the certificate of incorporation given at any time is to 
 be conclusive evidence that all the requisitions in re- 
 spect of legislation have been complied with, that the 
 company is authorized to be registered under the Act 
 as a limited or unlimited company, and as to the date 
 of incorporation. Companies formed after the com- 
 mencement of the Act, and required to register under 
 this section, are, unless registered, illegal; companies 
 formed before the commencement of the Act, and re- 
 quired by sect. 209 to register under it, are hot illegal, 
 unless registered, but, until registration, are subject to 
 the penalties imposed by sect. 210. Buckley's Compa- 
 nies Acts, p. 4. 
 
(131) 
 
 Mistake of Law. 
 
 ROGERS i.. INGHAM. 
 (3 CH. Div. 351.) 
 
 The Court will not relieve against a payment 
 of money under mistake of, law unless there be 
 some equitable ground which renders it inequi- 
 table that the party who received the money 
 should retain it. 1 
 
 An executor took the opinion of counsel with re- 
 gard to the construction of a will, and was advised 
 that a legatee was not entitled to certain interest 
 which had been paid to her. The legatee also took 
 the opinion of her. counsel, which was to the same 
 effect. The executor then divided the estate in ac- 
 cordance with these opinions. Two years afterwards 
 the legatee commenced an action submitting another 
 construction of the will and claiming repayment on 
 that basis, but it was held that such an action could 
 not be maintained. 2 
 
 ■fc The judgments of the late Lord Justices James r <JL 65] 
 and Mellish in this case contain probably the best state- 
 ment which is to be found in any of the books of the 
 principles upon which the Courts proceed in relieving 
 or declining to relieve on the ground of mistake of law. 
 The Court of Appeal upheld the decision of the late 
 Vice-Chancellor Hall, to the effect that it was too late 
 in the day to consider the question whether a proper 
 
 1 The general rule both of the common law and in equity is that 
 a mistake of law is no ground for relief. Mellish r. Robertson, 
 25 Vt. 603 ; Chaplin v. Lavtin, 18 Wend. 407 ; Peters v. Flor- 
 ence, 2 Wright (Pa.), 94 ; Goltra v. Sansack, 53 111. 456 ; Glenn 
 v. Statler, 42 Id. 107. A mistake in regard to individual rights 
 may in certain cases be redressed. Matlock v. Glover, 63 Texas, 
 231. 
 
 2 Hunt v. Rousmainer's Executors, 8 Wheaton, 174. 
 
132 MISTAKE OF LAW. 
 
 construction had been put upon the will, and that the 
 plaintiff could not be relieved on the ground that there 
 was a common mistake of law. 3 
 
 " No authority whatever," said Lord Justice James, 
 " has been cited to us in support of the proposition that 
 an action for money had and received would lie against 
 a person who has received money from another with 
 perfect knowledge of all the facts common to both 
 merely because it was said that the claim to the money 
 was not well founded in point of law. * Of course cases 
 of that kind must have continually occurred, and yet no 
 case has been produced in which a suit of this kind has 
 succeeded. 
 
 " No doubt there are some cases which have been 
 relied on in which this Court has not adhered strictly 
 to the rule that a mistake in law is not always incapa- 
 ble of being remedied in this Court, but relief has never 
 been given in the case of a simple money demand by 
 one person against another, there being between those 
 two persons no fiduciary relation whatever and no equity 
 to supervene by reason of the conduct of either of the 
 parties." 
 Cases where Lord Justice James then considered the cases cited in 
 repayment argument on which money had been ordered to be re- 
 d d° paid. In the old case of Bingham v. Bingham ( 1 Ves. 
 Sen. 12ft), a man was held entitled to get back money 
 which he had paid by mistake for a conveyance of land 
 which was really his own. With regard to the case of 
 Davis v. Morier (2 Coll. 303), where a trustee had by 
 mistake retained trust money in his possession, and the 
 Court, considering that this might be a case for some 
 relief, had ordered an inquiry into all the circum- 
 stances, Lord Justice James observed as follows : "That 
 is the nearest case that I have been able to find to the 
 case now before us, but that case is far from establish- 
 ing the proposition contended for, viz. that the Court 
 would grant relief if it could be shewn that the money 
 was paid under a mistake of law. If that proposition 
 were true in respect of this case it must be true in 
 respect of any case in the High Court of Justice where 
 money has been paid under a mistake as to legal rights, 
 and it would open a fearful amount of litigation and 
 
 3 If the mistake is encouraged or induced by misrepresenta- 
 tion of the other party then equity will grant relief. Whelan's 
 Appeal, 20 P. P. Sm. 425, Metropolitan Bank v. Godfrey. 23 111. 
 579: Hardigree v. Mitchum, 51 Ala. 154. 
 
 4 Money paid under a mistake of law cannot he recovered. 
 Haven v. Foster, 9 Pick.'ll2; E. E. Co. v. Soutter, 13 Wallace, 
 524; Pinkham v. Gear, 3 N. H. 163; Ege i>. Kontz, 3 Barr. 109. 
 
MISTAKE OF LAW. 
 
 133 
 
 evil in eases of distribution of estates, and it would be 
 difficult to say what limit could be placed to this kind 
 of claim if it could be made after an executor or trustee 
 had distributed the whole estate among the persons 
 supposed to be entitled, every one of them have know- 
 ledge of all the facts and having given a release. The 
 thing has never been done, and it is not a thing which 
 in my opinion is to be encouraged. Where people have 
 a knowledge of all the facts and take advice, and whether 
 they get proper advice or not, the money is divided and 
 the business is -^f settled it is not for the good of mankind [ -^ 66] 
 that it should be reopened by one of the parties saying: 
 You have received your money by mistake. I acquiesced 
 in your receipt of it under that mistake, and therefore 
 I ask you to give it to. me back." To this Lord Justice 
 Mellish added that he had no doubt that, as laid out in 
 the case of Stone v. Godfrey (to which we shall imme- 
 diately refer), the Court had" power to relieve against 
 mistakes of law if there was any equitable ground which 
 made it, under the particular facts of the case, inequita- 
 ble that the party who received the money should re- 
 tain it. 
 
 In Stone v. Godfrey (5 De G. M. & G. 76) the plain- Erroneous 
 tiff had been advised by counsel that he was not tenant le § al advice - 
 by the curtesy, and acting upon that advice he con- 
 curred with his daughter (then an infant) in a parti- 
 tion suit. The advice was subsequently ascertained to 
 be erroneous, and the father commenced an action to be 
 relieved on the grouud of mistake. The Court con- 
 sidered that he was barred by his own conduct and 
 laches, but both of the Lords Justices rested their judg- 
 ments upon that alone: and L. J. Turner expressly said, 
 that he felt no doubt that the Court had power to re- 
 lieve against mistakes in law as well as against mistakes 
 in fact. (Per Lord Hatherley, then V. C. Wood, Re 
 Saxon Life Assurance Society (2 J. & H. 408-412)). 
 In Re Saxon Life Assurance Society, ubi supra ( affirm- 
 ed on appeal, but on different grounds, 1 De G. J. & S. 
 29), an arrangement had been carried out by which one 
 insurance company purchased the business, received 
 the assets, and undertook the liabilities of another in- 
 surance company, and a creditor of the latter company, 
 believing the arrangement to be valid, cancelled a cer- 
 tain security which he held from the first company and 
 accepted in lieu of it the security of the second. There 
 was a common mistake of law in the transaction, and it 
 was subsequently discovered that the arrangement was 1 
 void. The creditor then claimed successfully to be ad- 
 
134 
 
 MISTAKE OF LAW. 
 
 Payment by 
 an executor 
 under mis- 
 take of law. 
 
 Payment 
 under mis- 
 [*67] 
 take to 
 officer of the 
 Court. 
 Trustee in 
 bank- 
 ruptcy. 
 
 mitted to his former rights against the first company. 
 Lord Hatherley (then Sir W. Page Wood) in deliver- 
 ing judgment in his favour, said : "A question has 
 sometimes arisen how far this Court can interfere to 
 rectify a mistake in Jaw,; but, having regard to all the 
 authorities, and especially to Stone v. Godfrey, I have 
 no doubt of the jurisdiction." See as to payments 
 made by executors bond fide under a mistake of law, 
 In re Hulkes, Powell v. Hulkes (33 Ch. D. 552), where 
 it was held that under the circumstances of the case the 
 executors were not liable for interest. It must be borne 
 in mind that the Court in applying the maxim ignor- 
 antia juris neminem excusat, in relieving against mis- 
 takes of law, draws a distinction between jus in the 
 sense of law and jus in the sense of private right or 
 title. 5 Cooper v. Phibbs (L. E. 2 H. L. 149); Earl 
 Beauchamp v. Winn (post, pp. 68, 71). The result of 
 the authorities would seem to be that with regard to 
 mistakes of law in the ordinary sense of the term there 
 is no relief unless there be a fiduciary relation or 
 some equity by reason of the conduct of one of the 
 parties. 6 
 
 The Court, however, feels no such difficulty in afford- 
 ing relief where by mistake of law money has been paid 
 to its own officer. In Ex parte -fa James, In re Condon 
 (L. K. 9 Ch. 609) a trustee in bankruptcy was ordered 
 to repay money. Lord Justice James in delivering 
 judgment said: "I am of opinion that a trustee in 
 bankruptcy is an officer of the Court. He has inquisi- 
 torial powers given him by the Court, and the Court 
 regards him as its officer, and he is to hold money in 
 his hands upon trust for its equitable distribution 
 among the creditors. The Court, then, finding that he 
 has in his hands money which in equity belongs to some 
 one e"lse, ought to set an example to the world by pay- 
 ing it to the person really entitled to it. In my opinion 
 the Court of Bankruptcy ought to be as honest as other 
 people." ' 
 
 The principle of Ex parte James (ubi supra), which 
 was characterised by Lord Esher in Ex parte Simmonds 
 (16 Q. B. Div. 308) "as a good, a righteous, and a 
 wholesome principle," was extended in the latter case, 
 
 s Kerr on Mistake and Fraud, Bump's Ed. 398. 
 
 6 Chaplin v. Laytin, 18 Wendell, 407, Hoover v. Reilly, 2 Abb. 
 U. S. 471 ; Hampton v. Nicholson, 8 C. E. Green, 427. 
 
 7 A Court of Chancery will sometimes grant relief in cases 
 where the law is confessed by doubtful and ignorance may be 
 supposed to exist. Reservoir Co. v. Chase, 14 Conn. 123, Martin 
 v. N. Y. S. & C. E. K. 36, N. J. Eq. 109. 
 
MISTAKE OF LAW. 135 
 
 and the rule was laid down that a trustee in bank- 
 ruptcy who has received money paid him by mistake 
 will be ordered to refund it not only out of money in 
 his hands, but will also be ordered to repay it out of 
 other moneys afterwards coming to his hands applica- 
 ble to the payment of dividends to the creditors. 
 
 " The Court," said Lord Esher, " will direct its officer 
 to do that which any high-minded man will do, not to 
 take advantage of the mistake of the law. This rule is 
 not confined to the Court of Bankruptcy. If money 
 had by a mistake of law come into the hands of an offi- 
 cer of the Court of Common Law the Court would order 
 him to repay it so soon as the mistake was discovered. 
 Of course, as between litigant parties, even a Court of 
 Equity would not prevent a litigant from doing a 
 ^shabby thing. But I cannot help thinking that if 
 money had come into the hands of a receiver appointed 
 by a Court of Equity through a mistake of law, the 
 Court would, when the mistake was discovered, order 
 him to repay it." In In re Brown, Dixon v. Broun (32 
 Ch. D. 597), where trust money in the hands of a trus- 
 tee had been paid to his trustee in liquidation by mis- 
 take of law, it was held, on the analogy of Ex parte 
 James and Ex parte 'Simmonds (ubi supra), that the 
 Chancery Division had power to order him to refund 
 it. On this point the Judge expressed himself as follows : 
 " I have no doubt or hesitation in saying that a Court 
 of the Chancery Division does not consider itself bound 
 to acton principles less honest than the Court of Bank- 
 ruptcy ; and if this money was really paid to the trus- 
 tee in the liquidation in mistake of law, I have no hesi- 
 tation in saying that he must repay it, and if any order 
 of the Court of Bankruptcy were necessary for that 
 purpose, I presume the Court would make such order." 
 See as to repayment of money borrowed under a mis- 
 take of law, Blackburn and District Benefit Building 
 Society v. Cunliffe Brooks & Co. (29 Ch. Div. 902, 
 910). 
 
136 MISTAKE OF PACT. 
 
 [ * 68] * Mistake of Fact 
 
 COOPER v. PHIBBS. 
 (L. E. 2H. L. 149.) 
 
 Principle. Where a contract is entered into bond Hole 
 
 under a mutual mistake of fact, either party is 
 entitled to be relieved from it. 1 
 
 Summary of Phibbs, acting as trustee for the daughters of Ed- 
 facts, ward Joshua Cooper, agreed to grant a lease of a 
 salmon fishery to Edward Cooper for three years. 
 Both parties were in complete ignorance of the true 
 state of facts, which was that Edward Cooper was 
 entitled as tenant for life to the salmon fishery, and 
 that the daughters of Edward Joshua Cooper had 
 no beneficial interest whatever in it. The House of 
 Lords decided that the agreement must be set aside, 
 but that the personal representatives of Edward 
 Joshua Cooper were entitled to a lien on the fishery 
 for money which had been expended by him for its 
 benefit and improvement. 
 
 The facts in this remarkable case are somewhat com- 
 plicated. The former tenant for life having become a 
 lunatic and application having been made in his life- 
 time for Parliamentary powers to improve and develop 
 the salmon fishery, an Act for those purposes was 
 passed shortly after his decease. The Act recited that 
 the fishery in question had descended to and was vested 
 in Edward Joshua Cooper as heir-at-iaw of the lunatic. 
 As a matter of fact Edward Joshua Cooper was only 
 entitled to the fishery under a settlement which gave 
 him a life interest with remainder to his heirs male, 
 
 1 In Ludington v. Ford, 33 Mich. 123, the Supreme Court said 
 that a mistake in order to be relieved must be an error on both 
 sides. "The mistake of fact, in order to be relieved must be 
 one that is mutual, material and not induced by negligence." 
 Bispham's Eq. 4th Ed. 191 ; Paulinson v. Van Iderstine, 28 N. J. 
 Eq. 306. 
 
MISTAKE OF FACT. 137 
 
 and as he died without male issue, the fishery, under 
 the settlement, devolved upon Edward Cooper and his 
 heirs male. The result, as stated in the judgment of 
 the Law Lords (pp. 164, 1/0), was that when Edward 
 Cooper entered into the agreement to take the lease, 
 he agreed to take a lease of what was in truth his own 
 property, " the parties dealt with one another under a 
 mutual mistake as to their respective rights. Edward 
 Cooper did not suppose that he was, what in truth he 
 was, tenant for life of the ^r fishery. The other parties [ -^ 69] 
 acted upon the impression given to them by their 
 father, Edward Joshua Cooper, that he was the owner of 
 the fishery, and that the fishery had descended to them." 
 
 "In such a state of things," said Lord Westbury, 
 "there can be no doubt of the rule of a Court of 
 Equity with regard to the dealing with that agreement. 
 It is said, 'Ignorantia juris haud excusat;' but in that 
 maxim the l jus : is used in the sense of denoting gen- 
 eral law, the ordinary law of the country. But when 
 the word jus is used in the sense of denoting a private 
 right, that maxim has no application. Private right of. 
 ownership is a matter of fact; it may be the result also 
 of matter of law; but if parties contract under a mu- 
 tual mistake and misapprehension as to their relative 
 and respective rights, the result is, that that agreement 
 is liable to be set aside as having proceeded upon a 
 common mistake." 
 
 The House of Lords accordingly, reversing the deci- 
 sion of the Court below, set aside the agreement, but in 
 so doing they proceeded upon the principle that it is the 
 duty of a Court of Equity to deal with the whole of 
 the subject matter, and once for all to dispose of the 
 rights and interests of the parties concerned. The ex- 
 penditure upon the property, they held, constituted a 
 lien, a charge in the nature of a mortgage charge. 
 
 Mistake of fact is not the less a ground for relief 
 because the person who has made the mistake had the 
 means of knowledge, 2 per Fry. J., Willmot v. Barber 
 (15 Ch. D. 96, 106). 
 
 In connection with the subject of mistake it becomes Kectifica- 
 necessary to consider the subject of "Ratification, 3 set- tion. 
 
 2 If however, the mistake is the result of the person's own 
 negligence equity will not grant relief. Lewis v. Id., 5 Oregon, 
 169; Smith v. Wheeler, 58 Iowa, 659; Susquehanna Mut. Fire 
 Ins. Co. ». Swank, 102 Pa. St. 17. 
 
 3 If the intention is erroneously expressed in the instrument 
 the proper relief is secured by correction, and if the intention is 
 founded on error rescission is the proper remedy. Hurd v. Hall, 
 12 Wis. 112. 
 
138 
 
 MISTAKE OF FACT. 
 
 Remedies in 
 ca ses of mis- 
 take. 
 
 [*70] 
 
 Practice. 
 
 ing aside and cancellation of deeds or other written in- 
 struments," which is by sect. 34 of the Judicature Act, 
 1873, specially assigned to the Chancery Division. 
 
 It was held in Paget v. Marshall (28 Ch. D. 255) 
 that in cases of mutual mistake the remedy is rectifica- 
 tion. In cases of unilateral mistake the remedy is 
 rescission of the contract, but the Court may, instead 
 of rescinding the contract, give the defendant an option 
 of taking what the plaintiff intended to give him. In 
 this case the Court decided that the plaintiff was not 
 entitled to any costs because he made a mistake, and 
 that the defendant, on the other hand, should not be 
 allowed any costs, because his opposition had been un- 
 reasonable, unjust, and unlawful. 
 
 In Caird v. Moss (33 Ch. Div. 22) the Court of Ap- 
 peal dismissed an action to have an agreement recti- 
 fied. 4 The ground on which they proceeded was that 
 the agreement had been already worked out and the 
 fund distributed under a judgment in the Palatine 
 Court. They held, however, that there was no estoppel 
 of the cause of action on the ground of res judicata as 
 the question of rectification had not been before the 
 Palatine Court. 
 
 In Tucker v. Bennett (34 Ch. D. 754), where there 
 was a marriage settlement drawn up without any refer- 
 ence to the intended wife, who had not been informed 
 of its terms, containing a covenant to settle after-ac- 
 quired property on the wife for life, after her decease 
 ■^•on the issue of the marriage, and in default of issue 
 on her next of kin as if she had died intestate and 
 without having been married. The Court rectified the 
 settlement by giving her a power of appointment by 
 will, in the event of her dying in the lifetime of her 
 husband, over the after-acquired property and an abso- 
 lute property in the event of her surviving. 
 
 The usual practice, which was followed in this cape, 
 is to endorse the rectifying order of the Court on the 
 instrument rectified. 
 
 It was held in Olley v. Fisher (34 Ch. D. 367) (citing 
 Pry on Specific Performance, 2nd ed. pi. 799) that the 
 Court has, since the Judicature Act, jurisdiction in 
 every case in which the Statute of .Frauds is not a bar, 
 
 * Where mistakes have been corrected in equity by "correc- 
 tion," see Mills v. Lockwood. 42 111. Ill; Hamilton «. Asslin, 14 
 S. & E. 448; Loss i>. Obry, 7 C. E. Green, 52; Waterman i>. Dut- 
 ton, 6 Wis. 265; Glass v. Hulbert, 102 Mass. 34; Eigsbee v. Tress, 
 21 Ind. 227; Hathaway v. Brady, 23 Cal. 475; Scales*;. Asbbrook, 
 1 Metcalfe (Ky.), 358. 
 
MISTAKE OF FACT. 139 
 
 to rectify a written agreement upon parol evidence of 
 mistake, and to order specific performance of the recti- 
 fied agreement in the same action. See Pearson v. 
 Pearson (27 Ch. Div. 145, 148, 149), where parol evi- 
 dence was admitted on a counter- claim for rectifica- 
 tion. 
 
 The jurisdiction of the Court to rectify a settlement 5 
 is not excluded by the fact of its having been enrolled 
 under the Fines and Recoveries Act (3 & 4 Wm. IV. 
 c. 74), Hall Dare v. Hall Dare (Si Ch. Div. 251.) 
 
 The question whether a release could be set aside on Setting 
 the ground of a mistake 6 was much discussed in In re aside 
 Garnett, Gandy v. Macauley (31 Ch. D. 1). Two ladies release, 
 who were entitled to quarter shares in a residuary 
 personal estate, valued at the time of passing the resid- 
 uary account at £42,000, executed a release to the trus- 
 tee of the will in consideration of the receipt of £10,- 
 500 each. The residuary estate consisted principally 
 of stocks and shares, which had greatly increased in 
 value and one quarter share of which was at the time 
 of the release worth much more than £10,500. The 
 release had been drawn up by the trustee's solicitor, and 
 the ladies had had no independent advice. It was held 
 that the release was invalid and must be set aside. And 
 see Turner v. Turner (14 Ch. D. 829), where it was laid 
 down that general words in a release are limited always 
 to that thing which was especially in the contemplation 
 of the parties at the time when the release was given, 
 but that a dispute that had not emerged, or a question 
 which had not at all arisen, could not be considered as 
 bound and concluded by the anticipatory words of a 
 general release. 7 
 
 The principles on which the Court proceeds in en- 
 forcing or declining to enforce specific performance in 
 cases of mistake were carefully considered in Tamplin 
 v. James (15 Ch. Div. 217). In that case, property 
 consisting of an inn and saddler's shop was offered for 
 sale. It was accurately described in the particulars of 
 sale as consisting of closes numbered on the tithe map, 
 and correct plans were exhibited in the sale-room. The 
 
 5 Where there is error in a settlement, and anything is given 
 in consequence of such error or mistake, equity will relieve. 
 Barnettii. Id., 6 J. Marsh, 499. See however, Bispham v. Price, 
 15 How. (U.S.) 162. 
 
 6 See Glenn v. Statier, 42 Iowa, 110; also, Snyder v. Ives, 42 
 Id. 162. 
 
 7 Kerr on Fraud and Mistake, 296, says: "The right to im- 
 peach a transaction on the ground of fraud may be lost by con- 
 firmation, by release, by acquiescence or by delay." 
 
140 
 
 MISTAKE OF FACT. 
 
 [*71] 
 
 Principle on 
 which the 
 Court acts. 
 
 Relief on 
 ground of 
 mistake. 
 
 purchasers bought in the mistaken belief that the prop- 
 erty included two pieces of garden ground which had 
 for many years been occupied with the inn and shop. 
 The Court of Appeal held, affirming the decision of the 
 Court below, that the purchaser could not resist specific 
 performance on the ground of mistake. 
 
 James, L.J., in delivering judgment in Tamplin v. 
 James (ubi sup.), said that the majority of the cases 
 in which the defendant had escaped -^-from specific 
 performance by reason of a mistake to which the plain- 
 tiff had not contributed were cases where a hardship 
 amounting to injustice would have been inflicted upon 
 him by holding him to his bargain, and where it was 
 therefore unreasonable to hold him to it, and intimated 
 an opinion that the Courts had gone too far in such 
 cases, see Malins v. Freeman (2 Keen, 25), where the 
 Court refused to order specific performance of a pur- 
 chase at an auction where the purchaser had mistaken 
 the lot, and cases collected in Fry on Specific Perform- 
 ance, 2nd ed. p. 326). "If," he said, "a man will not 
 take reasonable care to ascertain what he is buying, he 
 must take the consequence. . . , It is not enough for 
 a purchaser to swear 'I thought the farm sold contained 
 twelve fields which I knew, and I find it does not in- 
 clude them all;' or, 'I thought it contained 100 acres, 
 and it only contains 80.' It would open the door to 
 fraud if such a defence was to be allo\*ed." 
 
 The following passage from the judgment in Swais- 
 land v. Dearsley (29 Beavan, 430) was cited in this 
 case with approval as containing a correct statement of 
 the law. " The principle on which the Court proceeds 
 in cases of mistake is this — if it appears upon the evi- 
 dence that there was in the description of the property 
 a matter on which a person might bona fide make a mis- 
 take, and he swears positively that he did make such 
 mistake, and his evidence is not disproved, this Court 
 cannot enforce the specific performance against him. 8 
 If there appears on the particulars no ground for the 
 mistake, if no man with his senses about him could 
 have misapprehended the character of the parcels, then 
 I do not think it is sufficient for the purchaser to swear 
 that he made a mistake, or that he did not understand 
 what he was about." 
 
 A leading case on the subject of relief on the ground 
 of mistake is Beauchamp v. Winn (L. R. 6 H. L. 223). 
 
 8 Adams' Equity, page 85, and James v. State Bank, 17 Ala. 
 67; Yancy v. Green, 6 Dana, 444; Morss v. Elmendorf, 11 Paige, 
 277. 
 
MISTAKE OF FACT. 141 
 
 In this case the House of Lords stated the law to be 
 that where in the making of an agreement between two 
 parties there has been a mutual mistake as to their 
 rights occasioning an injury to one of them, the Court 
 is disposed to grant relief, and will not, if a clear case 
 is established, decline to grant relief merely because on 
 account of the circumstances which have intervened 
 since the agreement was made, it may be difficult to 
 restore the parties exactly to their original condition. 
 Acquiescence in what has been done will not " operate 
 as an equitable estoppel," to use the phrase employed 
 by Lord Chelmsford, p. 235, or, in other words, will 
 not be a bar to relief where the party alleged to have 
 acquiesced has acted or abstained from acting through 
 being ignorant that he possessed rights which would 
 be available against that which he has permitted to be 
 enjoyed. 
 
 The question of the recovery of money which had Money paid 
 been paid under mistake of fact, was very recently dis- uncler mis- 
 cussed in i. case in the Privy Council. The Colonial take of tact 
 Bank v. The Exchange Bank of Yarmouth, Nova Scotia 
 (11 App. Cas. 84). The Colonial Bank was under in- 
 structions to remit a sum of money to a bank at Hali- 
 fax, but their agent being misled by certain ambiguous 
 instructions the money came -^- into the possession of [ -fa 72] 
 a wrong bank, who claimed it in reduction of Rogers' 
 account with them. The Privy Council held, reversing 
 the decision of the Nova Scotian Court, that the plain- 
 tiffs had such an interest in the fund as entitled them 
 to recover. " When," the Privy Council said, " the de- 
 fendants were told that a mistake was made, an equity 
 was fastened upon them not to alter the position of 
 the fund until the mistake could be repaired, and on 
 the 19th of May, 1879, when they knew exactly how 
 the mistake was made, and how in the opinion of all 
 parties to the transaction they could repair it, they were 
 bound to repair it." 9 And see Durrant v. The Ecclesi- 
 astical Commissioners (6 Q. B. D. 234), where it was 
 held that the plaintiff was not disentitled to recover on 
 the ground of laches. 10 
 
 In the recent case of Daniell v. Sinclair (6 App. Cas. 
 
 9 Throughout the United States it appears to he settled that 
 money paid under a mistake of law cannot he recovered. Bank 
 of United States v. Daniel, 12 Peters, 32. 
 
 10 Ordinarily in equity the statute of limitation is a good plea 
 in har. Neely's Appeal, 4 Norris, 490; Kane v. Bloodgood, 7 
 Johns. Ch. 90; but in cases of fraud no lapse of time will he a 
 bar to the injured parly provided he did not know of the fraud. 
 Cock v. Van Etten, 12 Min. 522; Michoud v. Girod, 4 How. 561. 
 
142 , TEST OF PARTNERSHIP. 
 
 181, 190),where the previous authorities are considered, 
 the Court stated, citing the observations of Lord 
 Chelmsford in Beauchamp v. Winn (ubi supra), that 
 the line between»mistakes in law and mistakes in fact 
 had not been so clearly drawn in equity as in the cases 
 decided by the Common Law Courts. 
 
 Test of Partnership. 
 
 ■WALKER t. HIRSCH. 
 (27 Ch. Div. 460.) 
 
 Principle. An agreement to share profits and hear losses 
 
 in certain proportions is prima facie evidence 
 of partnership ' as oetween the contracting par- 
 ties themselves, l)ut such an agreement is not 
 conclusive, and the question of partnership as 
 oetween the parties must in each case depend 
 upon their intention as expressed in the agree- 
 ment. 2 
 
 Summary of Walker, who had been previously a clerk in the 
 facts. employment of Hirsch & Co., entered into an agree- 
 
 1 Where there is an agreement to share in the profits and losses 
 of a business it shows an intention to create a partnership unless 
 such evidence of intention is controlled by stipulations or inter- 
 preted by conduct inconsistent with it. If the goods or the 
 money wherewith to buy them are contributed by all and are 
 joined as a common stock, and are to be used or disposed of for 
 the joint benefit, with an agreement to divide the profit and loss 
 this will constitute a partnership. Chapman v. Wilson, 1 Bob. 
 (Va.) 267; Laffan v. Naglee, 9 Cal. 662; Somerby v. Buntin, 118 
 Mass. 279; Meaner v. Cox, 37 Ala. 201; Morse v. Richmond, 97 
 111. 306; Cumpston v. McNair, 1 Wendell, 457; Choteau v. Eaitt, 
 20 Ohio, 132; Smith v. Small, 54 Barb. 223. If one person fur- 
 nishes the money for the enterprise and the other gives his ser- 
 vices and under an agreement they are to divide the profit and 
 loss it is a partnership. Sprout v. Crowley, 30 Wis. 187; Kuhn 
 v. Newman, 49 Iowa, 424; Pierce v. Shippe, 90 111. 371; Clark 
 v. Girdley, 49 Cal. 105; Tyler v. Scott, 45 Vt. 261; Marsh v. Rus- 
 sell, 66 N. Y. 288; Cole v. Moxley, 12 W. Va. 730. 
 
 2 If other circumstances aside from the agreement to share pro- 
 fit and loss show that no partnership was intended or created 
 they will control. See Dwinel v. Stone, 30 Me. 384; Clifton v. 
 Howard, 89 Mo. 192; Fawcett v. Osborn, 32 111. 411; Monroe v. 
 Greenhoe, 54 Mich. 9; Snell v. De Land, 43 111. 323; Osbrey v. 
 Eeimer, 51 N. Y. 630; Edwards v. Tracy, 62 Pa. St. 380; Far- 
 rand v. Gleason, 56 Vt. 623. 
 
TEST OF PARTNERSHIP. 143 
 
 ment with them under which he was to be paid a 
 fixed salary, and was to receive one-eighth share of 
 the net profits and bear one-eighth share of the 
 losses of the business as shewn by the books when 
 balanced. Walker was to leave £1500 in the busi- 
 ness during the continuance of the -fa agreement, [ -fa 73] 
 which could be determined by four months' notice. 
 Walker continued to act in the same manner as be- ' 
 fore in the business of the firm. The name of the 
 firm was not altered. Walker was never introduc- 
 ed to anyone as a partner, never signed any bills 
 for the firm, and when he signed letters, signed 
 them in his own name for Hirsch & Co. Hirsch & 
 Co., not being satisfied with Walker, gave him no- 
 tice to determine the agreement and shortly after- 
 wards excluded him from the office. Walker then 
 brought an action for winding up of partnership, 
 and moved for an injunction and receiver. The 
 Court of Appeal decided that there was no such 
 partnership between Walker and Hirsch as to enti- 
 tle Walker to an injunction and receiver. 3 
 
 The circumstances of this interesting and difficult 
 case were considered by the Court of Appeal so peculiar 
 that no assistance could be derived from the definitions 
 or attempted definitions of the words " partners " and 
 "partnership," or from the authority of reported cases, 
 except so far as general principle might be gathered 
 from them. The first point that was observable in the 
 agreement in question was the mode in which it was 
 signed. The usual form when A., B., and C. enter into 
 partnership is that A, B., and C. each sign individ- 
 ually. 4 In the present case the agreement was signed, 
 on the one hand by Walker individually, and on the 
 
 3 If it appears that one party is the principal and the other re- 
 ceives his share as compensation there is no partnership, and a 
 mere reception of a portion of the profits is not sufficient to con- 
 stitute the recipient a partner. Benedict v. Hattrick, 35 N. Y. 
 405; Loomis v. Marshall, 12 Conn. 69; Campbell v. Dent, 54 Mo. 
 325. 
 
 4 "Whether an agreement creates a partnership or not depends 
 on the real meaning of the parties to it as expressed in the agree- 
 ment itself." Lindley on Partnership, 18. See Macy v. Combs, 
 15Ind. 469; Salter v. Ham, 31 N. Y. 321; Gray v. Gibson, 6 
 Mich. 300; Hedge's Appeal, 63 Pa. St. 273. 
 
144 
 
 TEST OF PARTNERSHIP. 
 
 other by two parties not individually but as " Hirsch 
 
 & Co." Walker was to receive a fixed salary, and was 
 
 also to receive an eighth part of the net profits and be 
 
 debited with one-eighth share of the losses, if any. The 
 
 following important principle of law was then laid 
 
 Prima facie down. " In most cases where there is an agreement 
 
 evidence of with reference to a particular business and the particu- 
 
 partnership. j ar parties entering into it, that they shall share the 
 
 profits, and bear the losses in certain proportions, of 
 
 carrying on the business, with nothing to explain or 
 
 get rid of those words, that is prima facie evidence of 
 
 an intention to carry on business in partnership." 5 
 
 But the question of partnership must depend upon the 
 
 general terms of the agreement. 5 
 
 Further circumstances which were regarded by the 
 Court of Appeal as wholly inconsistent with the notion 
 of a general partnership, though consistent enough with., 
 that of a limited and qualified partnership, were that, 
 in addition to salary, Walker was to receive an eighth 
 part of the profits and bear one eighth of the losses, and 
 that the parties were enabled to put an end to the agree- 
 ment at any time on four months' notice, when the 
 £1500 was to be paid back to Walker. 
 [ -fc 74] ^"I 11 Pcnvsey v. Armstrong (18 Ch. D. 698), (which 
 
 may now be considered as overruled by Walker v. Hirsch), 
 it was laid down that an agreement to share profit and 
 loss must be regarded as quite conclusive of the rela- 
 tionship of partnership between two persons who had 
 so agreed, and that it was no more possible for one of 
 them afterwards to say that he was not a partner, than 
 it would be possible for a man and woman who had 
 gone through the formal ceremony of marriage before 
 a registrar, and satisfied all the conditions of the law 
 for making a valid marriage, to say that they were not 
 man and wife, because at the same time one had said 
 to the other, "Now mind we are not man and wife." 
 In answer to this, the Court of Appeal said that the 
 judge did not appear to have remembered the Act for 
 marriages before the registrar (6 & 7 Wm. IV. c. 85, s. 
 20), which requires that there shall be a solemn decla- 
 ration between the parties, in which each of the parties 
 shall say to the other, " I call upon these persons here 
 
 5 Winship v. Bank of United States, 5 Peters, 529: Pierce v. 
 Shippee, 90 111. 371; Perry v. Butt, 14 Ga. 699; Parviance?;. Mc- 
 Clintle, 6 S. & R. 259; Scott v. Colmesnell, J. J. Marsh, 416. 
 
 6 Anrl if they have agreed not to be partners, they are not; 
 no matter what their responsibilities may be otherwise. Red- 
 dington v. Lanaham, 59 Md. 429; Gill v. Knhn, 6 S. & R. 333; 
 Pollard v. Stanton, 7 Ala. 761. 
 
TEST OF PARTNERSHIP. 145 
 
 present to witness that I A. B. take thee C. D. to be 
 my lawful wife (or husband), as the case may be. "If 
 in making that declaration," said the Court, "either of 
 them said before the registrar, ' but we do not intend 
 to be husband and wife,' then there would not have 
 been the legal ceremony of marriage provided for by 
 the Marriage Act. If they had said that to one 
 another secretly, either before or after the ceremony, 
 the law is that by going through that ceremony before 
 the registrar, they are husband and wife, wihatever they 
 may have said secretly between themselves. That case 
 is of course entirely different from this, where the ques- 
 tion arises upon what the parties have said in the con- 
 tract which they have entered into, as to which there is 
 no positive statute defining any form as between parties.'" 
 
 "No doubt," said the Lord Justices, "there is in one 
 sense a kind of partnership created, a kind of joint in- 
 terest in adventure provided for; the case, however, is 
 not to be decided by the ' short cut ' suggested by the 
 appellant — viz., by saying that because there is in this < 
 document a clause which gives him a right to a share 
 in the profits and losses, therefore he is a partner, and 
 has all the rights of a partner except so far as the con- 
 tract has excluded them. The document is not a mere 
 contract of loan, it is not a mere contract of service, it 
 is not a mere contract of partnership. It has some of 
 the elements of all those contracts. 8 The plaintiff has 
 lent money, he is in some respects a servant, he is,, to 
 the extent of sharing in profits and losses, in the posi- 
 tion of a partner, but not of a partner with all those 
 rights which are contended to flow from that position. 
 His rights as regards the profits and losses are very 
 peculiar. The agreement is not that he shall share 
 profits and losses, the agreement is that he is to be paid 
 a salary in addition to one- eighth of the net profits, 
 and to bear one- eighth of the losses thereof as shewn 
 by the books when balanced." 
 
 An accurate definition of partnership has long been 
 
 7 If the actual relation which the parties have assumed toward 
 each other are those of partners any actual or presumed intention 
 of the parties cannot suspend the consequences. Stevens v. 
 Gainesville Nat. Bank, 62 Texas, 503; Rosenlneld v. Haight, 53 
 Wis. 260; Duryea v. Witcomb, 31 Vt. 395; Brass & Mfg. Co. v. 
 Sears. 45 N. Y. 797. 
 
 8 If it appears that the lending of money is used as a device 
 to receive the benefits of a partnership without the attendant re- 
 sponsibilities, as where the powers are inconsistent with the lend- 
 ing of money the contract is one of partnership regardless of 
 what the parties may call it." Bates on Partnership, Sec. 50. 
 
 10 MODEKN EQUITY. 
 
146 
 
 TEST OF PARTNERSHIP. 
 
 regarded as a desideratum among legal authors. In 
 Pooley v. Driver (5 Ch. D. 458, 471) (to which we 
 shall presently allude). Jessel, M.R., after declining for 
 himself to define partnership, and referring to the fif- 
 [ ~^T 75] teen attempts at-^- definition of partnership which will 
 Definition of be found collected in Lord Justice Lindley's Treatise 
 partnership, on Partnership, 4th ed., p. 112, expressed an opinion 
 that the definition found in the Civil Code of New 
 York, "Partnership is the association of two or more 
 persons for the purpose of carrying on business to- 
 gether and dividing its profits between them," with the 
 addition supplied bj Pothier that the business must be 
 an honest one, would be found sufficient. 
 Test of The question what is the test of partnership is con- 
 
 partnership, sidered by Mr. Justice Lindley in sections 1 and 2 re- 
 spectively of the chapter of his work on Partnership, 
 under the two headings of — (1) True partnerships, the 
 most obvious type of which is an agreement to share 
 profits and losses ; and (2) partnerships as regards 
 third persons, quasi partnerships as they are called, 
 " under which a number of persons who in consequence 
 of certain acts done by them, are held liable for each 
 other's conduct as if they had entered into a contract 
 of partnership among themselves." The former of 
 these classes of cases is that which is considered in the 
 leading case, and the law may be taken to be settled by 
 it that the sharing of profits is prima facie evidence of 
 partnership, but that in each case the intention of the 
 parties is to be collected from the agreement itself. 9 
 
 The second branch of the subject what is the test of 
 partnership as to third parties was made the subject of 
 an extremely careful consideration in 1862 by the House 
 of Lords, in the great case of Cox v. Hickman (8 H. 
 L. C. 268), the effect of which Lindley, L.J., tells us 
 has unquestionably been to put " a great branch of 
 partnership law on a substantially new footing." 
 
 The facts of that case were briefly as follows : — A 
 trader had been embarrassed, and executed a trust deed; 
 certain trusjtees were to carry on the business, and out 
 of the profits pay the expenses, and divide the net resi- 
 due equally amongst the creditors ; the trustees ac- 
 cepted a bill which was dishonoured, and one of the 
 creditors was sued upon it. 
 
 In this state of facts, the Court of Common Pleas 
 held that the defendant was liable. The Court of Ex- 
 chequer Chamber was equally divided. On an appeal 
 
 'See cases under note 1. 
 
TEST OF PARTNERSHIP. 147 
 
 to the House of Lords, the judges consulted by the 
 House were again equally divided. Amongst the Lords, 
 however, unanimity prevailed, and it was decided that 
 the defendant was not liable, and the judgments below 
 were therefore reversed. See Lindley on Partnership, 
 4th ed., p. 38 et seq., where the case is carefully con- 
 sidered. According to this decision the true test of 
 partnership as to third parties is whether agency exists 
 between the persons sought to be charged as patrons. 
 
 This case was followed three years afterwards by the Partnership. 
 Act to amend the Law of Partnership, 28 & 29 Vict. c. Amendment 
 86 (BovilVs Act as it is called). The provisions of that Act " 
 statute are as follows : 
 
 Section 1. That the advance of money by way of loan Section 1. 
 to a person engaged or about to engage in any trade or 
 undertaking upon a contract in writing with such per- 
 son that the lender shall receive a rate of interest vary- 
 ing with the profits, or shall receive a share of the 
 ■fc profits arising from carrying on such trade or un- [ -^ 76] 
 dertaking, shall not of itself constitute the lender a 
 partner with the person or persons carrying on such 
 trade or undertaking, or render him responsible as such. 
 
 This section was considered in Syers v. Syers (1 App. 
 Cas. 174), where it was held that a partnership at will 
 was created, the extremely important case of Pooley v. 
 Driver (5 Ch. D. 458) (discussed by the Court of 
 Appeal in Ex parte Tennent, In re Howard (6 Ch. Div. 
 303), and Ex parte Delhasse, In re Megevand (7 Ch. 
 Div. 511). These cases decide that the contract must 
 shew on the face of it that the transaction is one of 
 loan, that it must be signed, and that though an agree- 
 ment is expressed to be made under BovilVs Act, and 
 contains a declaration that the lender shall not be a 
 partner, he will nevertheless be held to be a partner if 
 that be the fair construction of the agreement as a 
 whole, and that the Act applies only to a loan made 
 upon the personal responsibility of the trader or traders 
 to whom it is made, and not to a loan made on the se- 
 curity of business. 10 
 
 Section 2. That no contract for the remuneration of Section 2. 
 a servant or agent or any person engaged in any trade 
 or undertaking by a share of the profits of such trade 
 or undertaking, shall of itself render such servant or 
 
 10 If the repayment of the loan is contingent upon the profits, 
 it is not a loan, for it is made not upon the personal responsi- 
 bility of the borrower but upon the security of the business. 
 Eosenfieldw. Haight, 53 Wis. 260; Brigham ». Dana. 29 Vt. 1; 
 Wood v. Vallette, 7 Ohio, 172; Horris v. Hillegras, 54 Cal. 463. 
 
148 
 
 TEST OF PARTNERSHIP. 
 
 agent responsible as a partner therein, nor give him the 
 rights of a partner. 
 
 Section 3. Section 3. That no person being the widow or child 
 
 of the deceased partner of a trader and receiving by 
 way of annuity a portion of the profits made by such 
 trader in his business, shall by reason only of such re- 
 ceipt be deemed to be a partner of or to be subject to 
 any liabilities incurred by such trader. 
 
 In In re Flavell, Murray v. Flavell (25 Ch. Div. 89), 
 it was held that a covenant to pay an annuity for the 
 benefit of the widow of a deceased partner created a trust 
 in her favour, and that she was entitled to the. annuity 
 in priority to the creditors. 11 
 
 Section 4. Section 4. ' That no person receiving by way of an- 
 
 nuity or otherwise a portion of the profits of any busi- 
 ness in consideration of the sale by him of the good- 
 will of such business shall by reason only of such re- 
 ceipt be deemed to be a partner of or be subject to the 
 liabilities of the persons carrying on such business. 
 
 Section 5. Section h. That in the event of any such trader as 
 
 aforesaid being adjudged a bankrupt, or taking the 
 ' benefit of any Act for the relief of insolvent debtors, 
 or entering into an arrangement to pay his creditors 
 less than twenty, shillings in the pound, or dying in in- 
 solvent circumstances, the lender of any such loan as 
 aforesaid shall not be entitled to recover any portion of 
 his principal, or of the profits or interests payable in 
 respect of such loan, nor shall any such vendor of a 
 goodwill as aforesaid be entitled to recover any such 
 profits as aforesaid until the claims of the other cred- 
 itors of the said trader for valuable consideration in 
 money or money's worth have been satisfied. 
 
 This section does not interfere with any security 
 which the lender has taken, as this would be to inflict a 
 
 [-^■77] penalty or disability and to -Jf confiscate the property 
 of the mortgagee. Ex parte Sheil, In re Lonergan (4 
 Ch. Div. 789) ; Baddeley v. Consolidated Bank (34 Ch. 
 D. 536). All creditors must be paid in full before the 
 lender can prove for any purpose whatever, Ex parte 
 Taylor, In re Grayson (12 Ch. Div. 366). In In re 
 Stone (33 Ch. D. 541) a loan was made to a trader oh 
 his bond, and an agreement in writing provided that 
 
 11 Annuitants are not partners but receive the annuity as inter- 
 est upon their money and if the firm becomes bankrupt they are 
 .not liable, neither can their hon&fide dividends be owned by the 
 creditors of the defunct firm. See Phillips v. Samuel, 76 Mo. 
 657; Jones v. Walker, 103 U. S. 444; Pitken v. Pitken, 7 Com. 
 307; Heigbe v. Littig, 63 Md. 391. 
 
LIABILITY OP PARTNERS. 149 
 
 the lender should receive five per cent, and be in- 
 structed in the business for five years ; during that 
 time he was also to receive a sum equal to half the net 
 profits, but the relationship was not to be construed as 
 a partnership unless the lender should give written 
 notice of his desire to be taken into partnership at the 
 end of three years. This agreement was cancelled 
 about a year afterwards, and another entered into under 
 which the lender was to receive twenty pounds a month 
 as interest in lieu of the interest and profits payable in 
 respect of the advance. It was held that this arrange- 
 ment fell within the first and fifth sections of BovilVs 
 Act, and that the lender must be postponed in Stone's 
 bankruptcy until all the other creditors had been paid. 12 
 And see Holme v. Hammond (L. R. 7 Ex. 218) ; Ex 
 parte Mills, In re Tew (L. R. 8 Ch. 569) ; Lindley on 
 Partnership, 4th ed. pp. 43 et seq. As to loans by wife 
 to husband, see post, p. 147. 
 
 Liability of Partners. 
 
 CLEATHER „, TWISDEN. 
 (28 Ch. Div. 340.) 
 
 A firm of solicitors is not, in the absence of Principle. 
 specialcircumstances 1 , liable on account of money 
 left for general investment or securities depos- 
 ited for safe custody with one of the partners? 
 
 Trustees under a will deposited bonds payable to Summary of 
 bearer for safe custody with A, a member of a firm lacts - 
 of solicitors. The firm acted for the estate, but the 
 entire management of the business was left to A. 
 
 12 To constitute a loan, the money advanced must be return- 
 able in any event independently of the success or non-success of 
 the business or the making of profits." Bates on Ptns. 50. 
 
 1 If money or property is procured by one partner, on behalf of 
 the firm and within the apparent scope of his authority, it is 
 within the custody of the firm, and the firm is liable for it, al- 
 though he misappropriates it. See Clement Bates on Partner- 
 ship, 476, and Alexander v. Georgia, 56 Ga. 478. But if money 
 comes into the hands of oneof the partners for a purpose not with- 
 in the scope of their business and he misused it, the innocent 
 partner is not liable. Adams t. Sturges, 55 111. 4fifl ; Linn v. 
 Koss, 16 N. J. L. 55, and Toof v. Duncan, 45 Miss. 48. 
 
150 LIABILITY OF PARTNERS. 
 
 The other partners had no knowledge of the deposit 
 of the bonds with A, but letters referring to it were 
 copied in the letter-books of the firm, charges for 
 the letters were included in bills of costs, and cheques 
 [ "A" 78] were on some ^ occasions drawn by A. in the name 
 of the firm in payment of interest on the bonds, the 
 firm being repaid by cheques drawn by A. on his 
 private account. The Court of Appeal (reversing 
 the decision of Denman, J.) decided that the other 
 partners were not liable. 2 
 
 The question which the Court of Appeal had to deter- 
 mine in the present case, in which, while substantially, 
 agreeing with the Court of first instance on matters of 
 ' law, they came to a different conclusion on the facts, 
 was as to the liability of a firm of solicitors for misap- 
 propriation of securities by one of their number. The 
 General law. general law with regard to cases where partners are or 
 are not to be held liable for misappropriation by one of 
 their members, is summed up by Mr. Justice Lindley, 
 at pp. 303-307, in a series of propositions, the first of 
 which has an important bearing on this subject. 
 
 The firm is liable : — 
 
 (1.) Where one partner, acting within the scope of 
 his authority as evidenced by the business of the firm, 
 obtains money and misapplies it. 3 
 
 ( 2. ) Where a firm in the course of its business re- 
 ceives money belonging to other people, and one of the 
 partners misapplies that money whilst it is in the cus- 
 tody of the firm.* 
 
 The additional authorities cited in support of these 
 propositions which have special reference to the liability 
 of solicitors are, Millett v. Chambers (Cowp. 814); 
 Brydges \._Branfill (12 Simons, 369). 
 
 2 If the other partners have knowledge of the nature of the 
 funds at the time of the misappropriation, they are implicated in 
 the breach of trust, and are all at the election of the cestui que 
 trust his debtors or trustees of the fund. Gillou «. Peterson, 89 
 Pa. St 163 ; Stoddard r. Smith, 11 Ohio, 581 ; Emerson v. Dur- 
 and, 64 Wis. Ill ; Trull n. Id., 13 Allen, 407. 
 
 3 The great difficulty is to determine whether the act commit- 
 ted was within the representative authority of the partner. 
 Stewart*. Levy, 36 Cal. 159. 
 
 4 If the firm has received the. benefit of the fraud committed by 
 one partner it is for that reason t"bey are liable. Fripp v. Wil- 
 liams, 14 S. Ca(. 502 ; Strang r. Br'adnor, 114 U. S. 555 ; Ger- 
 hardt v. Swaty, 57 Wis. 24 ; Manufacturers' & Mechanics' Bank?;. 
 Gore, 15 Mass. 75. 
 
LIABILITY OF PARTNERS. 151 
 
 The firm, on the other hand, is not liable if a partner 
 in the course of some transaction unconnected with the 
 business of the firm obtains money and then misapplies 
 it. 5 Sims v. Brutton (5 Ex. 802) commented on, Lind- 
 ley, p. 309; Harman v. Johnson (2 E. &. B. 61); 
 Plumer v. Gregory (L. B. 18 Eq. 621). 
 
 With regard to the law on the subject immediately Liability of 
 before them, viz. the liability of a firm of solicitors for firm of 
 the default of a partner, the Court of Appeal consid- sohcitors - 
 ered that there was no difficulty. It may be regarded 
 as settled by a series of decisions of which the following 
 are the principal. 
 
 In Blair v. Bromley (5 Hare, 542; 2 Phil. 354) 
 money which was left by a client with one of a firm of 
 solicitors to be invested in a specified security was mis- 
 appropriated by him, and it was decided, on the ground 
 that the transaction in question was inside the ordinary 
 scope of the business of solicitors that the partnership 
 was liable. 6 
 
 In Harman v. Johnson (2 E. & B. 61) it was held 
 on the other hand that the receipt of moDey by one of a 
 firm of solicitors -from a client professedly on behalf of 
 the firm for the general purpose of investing it as soon 
 as he could meet with a good security, was not an act 
 within the ordinary business of a solicitor so as, with- 
 out further proof of -fa authority from his partner, to [ -A- 79] 
 render them liable to account for the money so depos- 
 ited, such a transaction being part of the business of a 
 scrivener, and attorneys as such not necessarily being 
 scriveners. The Court of Appeal, in Cleather v. Twis- 
 den, in commenting on this case observed that though 
 the law may be so stated, no one could deny that a 
 course of conduct might be pursued which might con- 
 vert the act of a partner, of which the other members of 
 the firm would not be otherwise liable, into one for 
 which they would be responsible. 
 
 In Earl of Dundonald v. Masterman (L. B. 7 Eq. 
 504), which was cited by the Court of Appeal as con- 
 taining an accurate statement of the law on the subject 
 then dealt with, it was held that money received by one 
 member of a firm of solicitors in the course of the 
 management and settlement of the affairs of a client 
 
 5 Bounce v. Parsons, 45 N. Y. 180 ; Toof v. Duncan, (supra) ; 
 Adams v. Sturges (supra). 
 
 6 If the property is delivered to one partner as a representative 
 of the firm to dispose of it in a way within the scope of the busi- 
 ness, all the partners are liable for any misapplication or misap- 
 propriation that may occur. Peckham Iron Co. v. Harper, 41 N 
 
 " Ohio, 100 ; Castle v. Bullard 23 Howard, 172. 
 
152 LIABILITY OP PARTNERS. 
 
 of the firm, is money paid to the firm in the course of 
 their professional business, land that consequently the 
 members of the firm are liable to make good any loss 
 occasioned by the negligence or dishonesty of their 
 partner by whom such money was received. In this 
 case the late Lord Justice (then Vice-Chancellor) 
 James, after stating that the money received by the 
 partner must be treated as paid to the .firm, however 
 hard that decision might be on the innocent partners, 
 proceeded as follows: — "It is surely within the ordi- 
 nary every- day practice of a firm of solicitors or attor- 
 neys to receive moneys from a client for the satisfying 
 the demands of the creditors whom they are employed 
 to arrange with; to receive from a client, an executor, 
 moneys sometimes to pay the demands of government — 
 sometimes to pay legatees and sometimes to pay into 
 Court — in short, to receive money for any specific pur- 
 pose connected with the professional business they have 
 in hand, just as in Harman v. Johnson (2 E. & B. 61) 
 the Court held that it was within the ordinary business 
 of such a firm to receive moneys for the purpose of 
 making a specific investment or mortgage. If it was 
 within the ordinary business of the firm so to receive 
 moneys, cadit qucestio; for what one partner does in 
 the ordinary business of the firm is done by the firm. 
 Of course it is possible that a client may so have acted, 
 may have so lent himself to one member of the firm as 
 to preclude himself from enforcing such liability 
 against the other members." ' 
 
 A case which is remarkable as illustrating at the 
 same time both branches of the law on this subject is 
 the well-known case of Plumer v. Gregory (L. R. 18 
 Eq. 621), where the previous cases of Harman v. John- 
 son and Earl of Dundonald v. Masterman (ubi supra) 
 are reviewed along with several other authorities. In 
 that case Jonas G and William G. were in partnership 
 as solicitors. The plaintiff, who was a married woman 
 entitled to £3000 for her separate use, was advised by 
 the solicitors to invest it without her husband's concur- 
 rence, and she accordingly handed £1300 of it to the 
 firm to be invested on a mortgage of specified real es- 
 tate, viz. an advowson, and both members of the firm 
 acknowledged the receipt of it for that purpose. The 
 plaintiff subsequently handed over the remaining £1700 
 to William on his representation that it would be in- 
 [ -fa 80] vested on a mortgage of some ^- real estate of another 
 
 7 Ltndley on Partnership, Sec. 485. 
 
LIABILITY OF PARTNERS. 153 
 
 , client of the firm, snch estate not being specifically de- 
 scribed. Jonas died, and William afterwards fraudu- 
 lently applied both sums to his own use, but continued 
 to pay interest to the plaintiff on the whole £3000 till 
 within a short time before his death. William's estate 
 was insolvent, and it was held that Jonas's estate was 
 liable to make good to the plaintiff the £1300 with in- 
 terest from the date when interest was last paid by 
 William, but not the £1700. 
 
 With regard to the question whether the partners 
 could in the present case be held liable on the ground 
 that the defaulting partner had acted as their agent, 
 the Court of Appeal said three points had to be con- 
 sidered. First, whether they gave him express authority 
 to take charge of the bonds; secondly, if not, whether 
 they ratified what he did; and, thirdly, if they neither 
 expressly authorized nor ratified his acts, whether they 
 consented that he should have general authority to act 
 without their knowing what he did. " It is not 
 enough," said Bowen, L.J., "for a principal to shew 
 that he did not know what his agent was doing, for he 
 may have consented to leave the matter in his agent's i 
 hands; in ninety-nine cases out of a hundred partners 
 do not know what their partner does in any particular 
 business because they have consented not to know." 
 
 Denman, J., had come to a conclusion of fact with 
 regard to which the Court of Appeal completely differed 
 from him. He considered that, looking at the bills of 
 cost, letters, press, copy letter- book, and the expressions 
 in the letters, he must come to the conclusion that the 
 firm knew that the partner in question was acting in the 
 distribution of the estate. The Court of Appeal held 
 that though no doubt he was acting in the distribution 
 of the estate in giving advice with regard to it and 
 " distributing it on paper," yet he could not have been 
 considered as having dealt in the distribution of the • 
 
 estate in the sense that he was to be treated as having 
 received the whole estate or its proceeds into his hands 
 for distribution. On the whole, the Court of Appeal, 
 after a very careful consideration of the facts of the case, 
 came to the conclusion that though the case approached 
 very near the line it never crossed it — that the burden of 
 proof rested on the plaintiffs — and that under all the cir- 
 cumstances they must be held not to have discharged it. 8 
 
 8 The conversion by one partner of property which came into 
 the possession of the firm on partnership account, is the con- 
 version of all, and makes all liable in trover. Nisbet v. Patton, 
 4 Rawle, 119. 
 
154 
 
 RETURN OP PREMIUM 
 
 Criminal 
 liability of 
 partners. 
 
 With regard to the criminal liability of partners, 9 31 
 & 32 Vict. c. 116, provides that if any person being a 
 member of any co-partnership or being one or two or 
 more beneficial owners of any money, goods or effects, 
 bills, notes, securities, or other property, shall steal or 
 embezzle any such money, goods, or effects, bills, notes, 
 securities, or other property of or belonging to any such 
 co-partnership, or to such joint beneficial owners, every 
 such person shall be liable to be dealt with, tried, con- 
 victed, and punished for the same as if such person 
 had not been or was not a member of such co-partner- 
 ship or one of such beneficial owners. 
 
 [*81] 
 
 Principle. 
 
 jc Return of Premium on Dissolution of Part- 
 nership. 
 
 ATWOOD v. MAUDE. 
 (L. R. 3 Ch. 369.) 
 
 Where a partnership entered into for a defi- 
 nite term in consideration of a premium is pre- 
 maturely dissolved by a breach of the partner- 
 ship articles by the partner receiving the pre- 
 mium, the general rule of the Court in the 
 absence of special circumstances is to direct 
 the return of a proportionate part of the pre- 
 mium} 
 
 Summary of Atwood and Maude entered into partnership as 
 facts. solicitors for seven years, Maude paying a premium 
 
 9 A partner is not liable to conviction for the crimes of his 
 , partner unless he h'as participated in them. United States v. 
 
 Fish, 24 Fed. Rep. 585 ; Peterson r. State, 32 Texas, 477. and 
 contra Whitton v. State, 37 Mass. where liquor -was sold illegally. 
 See also on criminal liability of partners. State v. Coleman, 
 Dudley (S. Ca.) L. 32. One partner cannot arrest his co-partner 
 on an allegation of fraud relating to the partnership property. 
 Soule v. Haywarcl, 1 Cal. 345 ; Cary v. Williams, 1 Duer, 667. 
 But if a partnership asset has become individual property it can 
 then be the subject of a crime by a co-partner. Sharpe v. John- 
 ston, 59 Mo. 557. A partnership may be indicted if their act is 
 joint. United States p. McGinnis, 1 Abb. U. S. 120 ; Lemons r. 
 State, 50 Ala. 130. See also upon the subject of criminal liability, 
 Soughton v. State, 2 Ohio, 562; Stale v. Mohr, 68 Mo. 303; State 
 v. Williams, 103 In d. 235. 
 
 1 If the dissolution of the partnership is by mutual agreement 
 
ON DISSOLUTION OF PARTNERSHIP. 155 
 
 of £800. Atwood knew that Maude was very in- 
 experienced, and assigned his incompetence as a 
 reason for demanding the premium. At the end of 
 two years Atwood wrote a letter in which he said 
 the partnership must be dissolved, and that he had 
 already instructed counsel with that object. Maude 
 then commenced proceedings, asking for the disso- 
 lution of the partnership and the return of the 
 £800 or a proportionate part thereof. The Court 
 of Appeal held that Maude was entitled to return 
 of a part of the premium proportionate to the un- 
 expired period of the term of seven years. 2 
 
 The ground on which the Court directs a return of Reason of 
 premium on the premature dissolution of a partnership rule, 
 is "partial failure of consideration": 3 '.Edmonds v. 
 Robinson (29 Ch. D. 170). The "well-settled princi- 
 ples " on which the Court proceeds are stated by Lord 
 Cairns in the leading case (L. R. 3 Ch. 372) as fol- 
 lows: — 
 
 "If the partner who has received the premium 
 ■should afterwards commit a breach of the partnership 
 articles and himself dissolve the partnership or render 
 its continuance impossible, the Court will not allow 
 . him to take advantage of his own wrongful act, but de- 
 crees the restitution of a proportion of the premium 
 paid, having regard to the -fa terms of the contract and [ -fa 82] 
 to the length of time during which the partnership has 
 continued. 4 But, on the other hand, if the partner 
 who has paid the premium is guilty of a like breach of 
 the partnership articles and is himself the author of 
 
 the terms of the agreement controls. Durham r. Hartlett, 32 
 Ga. 22. In case of dissolution by death no part of the premium 
 is to be returned. If the claimant rescinds the partnership 
 agreement without any excuse he cannot avail himself of his 
 own wrong and receive a return of the premium. Bates on 
 Partnership, 806 and 8U8. 
 
 2 The general rule as to the amount of premium to be returned 
 is to nieasure it by the proportion that the unexpired term .bears 
 to the whole time. Bates on Partnership, 809. 
 
 3 Carlton v. Cummings, 51 Ind. 478; Dulaney »». Rogers, 50 
 Md. 524. 
 
 4 The guilty partners are jointly and severally liable for the 
 repayment of the proportionate part of the premium on dissolu- 
 tion owing to their misconduct, and the defrauded partner has a 
 lien on the assets of the firm for the proper amount. Richards 
 v. Todd, 127 Mass. 167; Pillars v. Harkness, Colles, 442; Bough- 
 ner r. Black, 83 Ky. 521. 
 
156' RETURN OF PREMIUM 
 
 the dissolution, the Court will not allow him to found 
 a claim to the restitution of the .premium upon his own 
 wrongful act." 
 
 " The Court," said Sir John Wickens, in Wilson v. 
 Johnstone (L. R. 16 Eq. 606, 609), " has always treated 
 it as a mere arithmetical question, but it might well 
 have been treated in another way. The dissolution by 
 the Court is a variation of the contract which the 
 Court imposes on the parties, and the Court in so im- 
 posing it, generally tre ats the premium as if it were an 
 ' aggregate of yearly payments made in advance, and re- 
 turns to the payer the proportion attributable to that 
 part of the term which it cuts off from that contracted 
 for. The right of the purchaser who paid the pre- 
 mium, like every other right, may of course be waived 
 or forfeited." 5 
 
 In this judgment, Sir John "Wickens stated that the 
 only cases in which the return of premium could be re- 
 fused in the case of a premature dissolution by the Court, 
 or what was tantamount to a premature dissolution by 
 the Court, were where there had been an actual or implied 
 release of the right to a premium, or an actual or im- 
 plied release of the right to be a partner, including 
 under the latter head such a deliberate and serious 
 breach of the partnership contract as might be con- 
 sidered equivalent to a repudiation of it altogether. 6 
 Mere conduct entitling the other partner to a decree 
 for dissolution would not be enough, nor mere careless- 
 ness in keeping accounts, nor mere breach of a con- 
 tract not to give credit, or the like, unless so deliberate, 
 so continued, and so persisted in after warning, as to 
 amount to a determination to treat the partnership 
 articles as a nullity. 7 See Lindley on Partnership, 4th 
 ed. p. 75, where this case is commented upon, and 
 Lindley, L.J., expresses an opinion that the whole 
 subject requires reconsideration by the Court of Appeal. 
 Arbitration Clauses referring disputes, which may arise with re- 
 clauses. gard to the partnership, are usually inserted in part- 
 
 • nership deeds. 8 Agreements of this kind do not de- 
 
 5 Lindley on Partnership, 73. 
 
 6 One person can sue another whom he has taken into partner- 
 ship for the premium promised to him. Blout v. Williams, 28 
 Ark. 374; Mullany v. Keenan, 10 Iowa, 224. 
 
 7 Ambler v. Whipple, 20 Wallace, 546; Denver v. Roane, 99 
 TJ. S. 355; Durbin v. Barber, 14 Ohio, 311; Ligare v. Peacock, 
 109 111. 34; Rhea v. Vannoy, 1 Jones Eq. (N. Ca.) 282. 
 
 8 A partner has no power to bind the firm by a submission to ar- 
 bitration, but the authority may be conferred either in the deed 
 or by parol and need not appear on the record. MacKay r. 
 
ON DISSOLUTION OP PARTNERSHIP. "157 
 
 prive the Courts of jurisdiction over the matters agreed 
 to be referred, nor will the addition of a coVenant not 
 to sue in respect of such matters prevent either party 
 from bringing them into Court, for such a covenant is 
 an agreement to oust the jurisdiction of the Courts, 
 and it is established, on the grounds of public policy, 
 that any agreement to oust the jurisdiction of the 
 Courts is void. 9 
 
 Though an agreement not to sue on a contract is 
 void, the same result is attainable by the parties agree- 
 ing that the award of an arbitrator shall be a condition 
 precedent to the right to sue. This may be done by a 
 stipulation that no right of action shall arise until 
 matters in dispute have been referred to and ascer- 
 tained by arbitration, or by a contract to pay such a 
 sum only as shall in case of difference be ascertained 
 by an arbitrator: Redman on Awards, p. 25. 
 
 The effect of arbitration clauses is carefully consid- 
 ered in Plews + v. Baker (L. K. 16 Eq. 564); Willesford [-4-83] 
 v. Watson (L. E. 8 Ch. 473); Law v. Garrett (8 Ch. 
 Div. 26); where the agreement was to refer all dis- 
 putes to a foreign Court; and in Piercy v. Young (14 
 Ch. Div. 200). In this last case the arbitration clause 
 was the shortest possible: "Any differences or dis- 
 putes which may arise between the partners shall be 
 settled by an arbitrator to be agreed upon between the 
 parties." ,0 
 
 Jessel, M. R. (distinguishing Willesford v. Watson 
 where Lord Selborne had decided that the provisions 
 of the arbitration clause were in that case wide enough 
 to include not only the construction of the document 
 itself, but also the question as to whether the, acts com- 
 plained of were or were not within the terms of the 
 matter referred, to arbitration), decided with regard to 
 the matter before him as follows: "Not only is there 
 no authority for saying that this Court should not de- 
 cide such a point, but it is the bounden' duty of the * 
 
 Bloodgood, 9 Johns, 285; Hamilton v. Phcenix Ins. Co., 106 
 Mass. 395; Wilcox v. Singletory, Wright (Ohio), 420; Davis 
 v. Berger, 54 Mich. 652; Karthaus v. Ferrer, 1 Peters, 222. 
 
 9 "The submission to arbitration binds the one that executed 
 it, for he promised on behalf of the firm and his partner's re- 
 fusal is a breach by him." McBride v. Hogan, 1 Wendell, 326; 
 Wood v. Sheppard, 2 P. & H. (Va.) 442; Jones v. Bailey, 5 Cal. 
 345; Bates on Partnership, Sec. 336. 
 
 10 Or if the partner who at first refuses to assent to arbitration, 
 afterwards does so his subsequent act cures the want of author- 
 ity. Martin v. Thrasher, 40 Vt. 460 ; Haywood v. Harmon, 17 
 111. 477 ; Becker v. Boon, 61 N. Y. 317 ; Abbott v. Dexter, 6 
 Cushing, 108. 
 
158 ' RETURN OF PREMIUM 
 
 Court to decide whether the matter in question is one 
 which the party proposing the reference has agreed to 
 refer to arbitration. The great object of these clauses 
 is to prevent the delay and expense of litigation, but 
 we must not forget in deciding upon them that they 
 do not deprive one of the parties, that is, the one that 
 objects to the arbitration, of the right to resort to the 
 ordinary tribunals of the country, and he is entitled to 
 say, ' Shew me that I have agreed to refer this matter 
 to an arbitrator.' " " 
 
 It was further decided, also in Piercy v. Young (ubi 
 supra), that although a particular submission to arbi- 
 tration may be revoked, a general agreement to refer to 
 arbitration could not be revoked by one of the parties. 
 In Russell v. Russell (14 Ch. D. 471) it was held, ques- 
 tioning Willesford v. Watson (ubi supra), that in a case 
 where fraud is charged, if the party charged with the 
 fraud desires a public inquiry, the Court will almost as 
 a matter of course refuse the reference, and will say, 
 I will not refer your character against your will to a 
 private arbitrator. Where, however, the objection to 
 arbitration is made by the party charging the fraud, 
 the Court will not be satisfied with the mere desire of 
 the party charging the fraud, but will require a'prima 
 facie case of fraud to be made out before it refuses to 
 send the case to arbitration. 
 Dissolution In Bluck v. Capstick (12 Ch. D. 863) it was decided 
 
 on ground of that where a partnership is dissolved before its natural 
 
 misconduct determination in consequence of the misconduct of the 
 of party pay- . , . . . ?. . . . , ,.„ . 
 
 in" the partner who has paid the premium he is not entitled 
 
 . premium. to a return of any part of it, and if he has not paid the 
 premium he will be ordered to pay it notwithstanding 
 the dissolution. 12 
 
 In Edmonds v. Robinson (29 Ch. D. 170) however 
 the Court declined to allow an addition to be made to 
 the judgment declaring that the plaintiff, who had 
 known all the facts at the time when judgment was 
 given, was entitled to a return of a premium on the 
 ground that though it had power to make such an or- 
 der it ought not to be exercised unless in a case where 
 leave would be given to bring a supplemental action. 
 Dissolution In Maycock v. Beaton ( 13 Ch. D. 384) the Court con- 
 on ground of sidered that the plaintiff had been induced by the de- 
 fraud. 
 
 11 A surviving partner may submit to arbitration with the ad- 
 ministrator of his deceased partner. Clanton v. Price, 90 N. C. 
 
 • 96, but he cannot arbitrate matter with the widow, he himself 
 being administrator. Boynton r. Id., 10 Vt. 107. 
 
 12 Perry p. Hale, 143 Mass. 540 ; Howell v. Harvey, 5 Ark. 270. 
 
ON DISSOLUTION OF PARTNERSHIP. 159 
 
 fendant's fraud to enter into -fa partnership, and gave [ *j{ 84] 
 judgment for rescission of the agreement and dissolu- 
 tion of the partnership, -with a declaration that the 
 plaintiff was entitled to stand in the place of the cred- 
 itors of the partnership for any sums which he had paid 
 or might pay in respect of the partnershi p liabilities. 
 
 It has been held that return of premium may be ob- 
 tained (and that in an action for partnership account 
 without rescission in toto) if a person knowing that he 
 is in a dangerous state of health, conceals that fact and 
 induces another to enter into partnership with him, but 
 in the absence of such special grounds it would seem 
 that sudden death being a contingency which all per- 
 sons may reasonably expect, no return of premium un- 
 less expressly bargained for can be demanded on this 
 ground. On similar principles it would seem that 
 bankruptcy is not a ground for obtaining a proportion- 
 ate return of premium, unless the fact of embarrassment 
 at the time of entering into the partnership, or semble 
 afterwards, has been concealed. Lindley on Partner- 
 ship, 4th ed. pp. 74, 75. 
 
 The rules as to return of premium laid down in At- Eu ^ e ^ oes 
 
 wood v. Maude and Wilson v. Johnstone (ubi supra) ™°, a PP 7 
 x. v i- * iv. ' i, tV ■ where dis- 
 
 have no application to those cases where there is no solution on 
 
 distinct breach of the partnership articles or of good "Equitable 
 faith, and the Court dissolves the partnership on what grounds." 
 are called " equitable grounds," i.e. because the contin- 
 uance of the partnership would be so disadvantageous 
 to the parties that the Court ought to put an end to it, 
 e.g. on account of lunacy or gross incompatibility of 
 temper. In these cases it is the duty of the Court to 
 look at all the facts and do what is equitable between 
 the parties, and the terms of dissolution as to return of 
 premium and other matters are in the discretion of the 
 judge, and the Court of Appeal will not interfere ex- 
 cept on very special grounds. In such cases the disso- 
 lution is not made retrospective, but only dates from 
 the judgment. Lyon v. Tweddell (17 Ch. Div. 529). 
 
 In some cases it is not uncommon on the dissolution Novation, 
 of a partnership for the persons who continue the busi- 
 ness to agree with the retiring partner that they will 
 take over the assets and assume the liabilities. 13 Notice 
 is given to the creditors, and if they accede to the ar- 
 rangement the liability of the new firm is accepted in 
 lieu of the old, and thus what is called a " novation," 
 
 13 See Hall v. Jones, 56 Ala. 493 ; and Hopkins?'. Carr, 31 Ind. 
 260 ; Eawson v. Taylor, 30 Ohio, 389 ; Hayes v. Know, 41 Mich. 
 529.' 
 
160 
 
 RETURN OF PREMIUM 
 
 Continuation 
 of partner- 
 ship. 
 
 [*85] 
 
 Accounts in 
 partnership 
 transactions. 
 
 Notice of 
 dissolution. 
 
 a term borrowed from the Civil Law, is effected. Lind- 
 ley on Partnership, 4th ed. p. 435. 
 
 In Scarf v. Jar dine (7 App. Cas. 345) a customer 
 who had sued the new firm afterwards brought an 
 action against the late partner. The House of Lords 
 decided that, the customer having the option and hav- 
 ing elected to sue the new firm, he could not turn round 
 and sue the old partner. 14 
 
 Where after the expiration of a term the partners con- 
 tinue the business without any fresh articles, the origi- 
 nal contract is considered to have been prolonged or 
 renewed by tacit consent. All the stipulations and con- 
 ditions of the original contract remain in force which 
 are not inconsistent with any implied term of the new 
 contract. The -fa new contract is a contract determina- 
 ble at will, and it is an implied term that each partner 
 has a right which must be exercised bond fide and not 
 for the purpose of deriving an undue advantage, to dis- 
 solve at any time. Neilson v. Mossend Iron Co., 11 
 App. Cas. 298, where it was held an elaborate clause 
 providing for the determination of the partnership had 
 no longer any application. 
 
 The practicewitb regard to taking accounts and in- 
 quiries in reference to partnership transactions was 
 considered in Barber v. Mackrell (12 Ch. Div. 534), 
 where after the usual accounts and inquiries in an ad- 
 ministration action had been supplemented by the usual 
 partnership accounts and inquiries, an additional ac- 
 count on the footing of fraudulent detention or improper 
 application of partnership money was directed. Jamesj 
 L.J., pointed out that it was not necessary to prove 
 every fraudulent abstraction, or more than one fraudu- 
 lent abstraction. The moment a partner proves against 
 his partner one fraudulent abstraction, one fraudulent 
 entry, that is a sufficient ground for an inquiry in Cham- 
 bers as to what amounts have been withdrawn, and to 
 have every further account based on that inquiry. 15 
 
 In Hendry v. Turner (32 Ch. D. 355) the parties had 
 agreed to a dissolution, and the question was whether 
 the Court had jurisdiction to compel the retiring part- 
 ner to sign a notice of dissolution for the Gazette, no 
 
 " There is no presumption to the effect that the creditors of 
 the firm intend discharging the retiring partner from liability. 
 Lindley on Partnership, 437. 
 
 15 More v. Rand, 60 N. Y. 208; Richards v. Todd, 127 Mass. 
 167; Van Gilder v. Jack, 61 Iowa, 756, and Dunn v. McNaught, 
 38 Ga. 179. 
 
ON DISSOLUTION OF PARTNERSHIP. 161 
 
 other relief being claimed. ,c This point was settled in 
 the affirmative, and the party who had refused to sign 
 the notice was ordered to pay the costs. 
 
 In Keumey v. Attrill (34 Ch. D. 345) judgment had Judgment 
 been given for dissolution of partnership, and after after disso- 
 judgment had been given, and a receiver appointed a lution - 
 creditor obtained judgment in the Queen's Bench Divi- 
 sion against the firm, and an order was made giving 
 him a charge for his judgment debt, with costs and in- 
 terest at £4 per cent, on all moneys come or coming to 
 the receiver, the intention of the Court being to pre- 
 serve to him all the rights he would have had if he had 
 issued execution and the sheriff had seized and sold the 
 assets on the day the application was made. 
 
 With regard to costs in partnership actions, the gen- Costs in 
 eral rule is that they are payable like the costs of other partnership 
 administrative actions, that is to say, the assets remain- actlons - 
 ing after payment of all partnership debts, including 
 balances due to any of the partners out of the assets, 
 and if the assets are insufficient they must be borne by 
 the partnership proportionally. If however the action 
 has been rendered necessary by the misconduct of a 
 partner, the Court will order that partner to pay the 
 costs occasioned by his misconduct, including the costs 
 up to the trial." Hamer v. Giles (11 Ch. D. 942). 
 
 The dissolution of partnership and the taking of part- Chancery 
 nership and other accounts is one of the subjects spe- Division, 
 cially assigned by sect. 34 of the Judicature Act, 1873, 
 to the Chancery Division. 
 
 Great changes in practice with regard to actions in Practice, 
 which partners are concerned have been , introduced by 
 the new Rules of Court made under the Judicature 
 Acts, Rules of the Supreme Court, 1883, O. vu. * r. 2; [ * 86] 
 O. ix. rr. 6, 7. O. xn. it. 15, 16; O. xvi. rr. 14, 15; O. 
 xlii. r. 10. Their effect may be shortly stated as 
 follows: — 
 
 I. Partners may now sue or be sued in the names of 
 their respective firms I8 (O. xvi. r. 14). 
 
 II. Service of the writ may be effected upon any one 
 or more of the partners, or at the principal place of 
 business upon any person having at the time of the 
 
 16 Abrahams «\ Myers, 40 Md. 499; Phillips i. Nash, 47 Ga. 
 218; Berry v. Folkes, 60 Miss. 576. 
 
 17 O'Lone v. Id. 2 Grant's Ch. 125; Knapp v. Edwards, r>7 Wis. 
 191; Price's Est. 81 Pa. St. 263. 
 
 18 In the absence of a statute, partners can neither sue nor be 
 sued in the partnership name. Leach v. Wagon Co. 14 Neb. 106; 
 Whitman v. Keith, 18 Ohio, 134 ; Wilson v. King, 1 Morris 
 (Iowa), 105. 
 
 11 MODEBN EQUITY. 
 
162 RETURN OF PREMIUM. 
 
 service the control or management of the business." (O. 
 ix. rr. 6, 7). 
 
 III. Appearance must be entered by the partners in- 
 dividually, but subsequent proceedings shall be in the 
 name of the firm 20 (O. xn. rr. 15, 16). 
 
 IV. Execution may issue not only against the part- 
 nership property, but also against any person who has 
 admitted himself to be or has been adjudged to be a 
 partner, and against anyone who has been served as a 
 partner and has failed to appear. 21 
 
 If the party who has obtained judgment or an order 
 claims to be entitled to issue execution against any 
 other person as being a member of the firm, he may 
 apply to the Court or a judge for leave so to do, and 
 the Court or judge may give such leave if the liability 
 be not disputed, or if such liability be disputed, may 
 order that the liability of such person be tried and de- 
 termined in any manner in which any issue or question 
 in an action may be tried and determined (0. xlii. r. 10). 
 
 When the partnership has been dissolved to the 
 knowledge of the plaintiff before the commencement of 
 the action, the writ shall be served upon any person 
 sought to be made liable 22 (O. xvi., r. 14), which -was 
 probably introduced on account of the decision of the 
 Court of Appeal in In re Young (19 Ch. Div 124). 
 
 When a writ is sued out by partners in the name of 
 their firm, the plaintiffs or their solicitors shall, on de- 
 mand in writing by or on behalf of any defendant, forth- 
 with declare in writing the names and places of resi- 
 dence of all the persons constituting the firm on whose 
 
 19 Service upon any one partner is not notice to the others un- 
 less the firm is sued in the firm name. Where there is no stat- 
 ute allowing suits in firm name, summons should be served on 
 each partner. Mithcell v. Greenwald, 43 Miss. 167; Weaver v. 
 Carpenter, 42 Iowa, 343; Maclay v. Freeman, 48 Mo. 234; Dresser 
 r. Wood, 15 Kansas, 344; Feder v. Epstein, 69 Cal. 456; Shapard 
 v. Lightfoot, -56 Ala. 506. The summons must conform to the 
 statutory provisions both as regards service at place of busi- 
 ness and upon the individual partners. See Clark r. Evans, 64 
 Mo. 258; Gillett u. Walker, 74 Ga. 291; Ladiga Saw Mill Co. v. 
 Smith, 78 Ala. 108, and as to service upon an infant see Mason 
 v. Denison, 11 Wendell, 612. 
 
 20 Mavberry v. Bainton, 2 Harr. (Del.) 24; Bennett r. Stiekney, 
 17 Vt. 531 ; Freeman v. Cathcart, 17 Ga. 348. 
 
 21 The writ of execution follows the judgment, and execution 
 against the partners can be levied upon the joint property or 
 upon the separate property of any of them. Saunders c. Reilly, 
 105 N. Y. 12; Clayton v. May, 68 Ga. 27; Randolph t. Daly, 16 
 N. J. Eq. 313; Dean r. Phillips, 17 Ind. 406. 
 
 22 Hall v. Lanning, 91 U. S. 160; Loomis c. Pearson, 1 Harper, 
 fS. Ca. ) L. 470. 
 
SALE OF GOODWILL. 163 
 
 behalf the action is brought. The action is then to pro- 
 ceed in the name of the firm, but as if the partners had 
 been named in the writ (O. vn. r. 2). A further power 
 is also given that any party to an action may apply by 
 summons for a statement of the names (and note that 
 addresses are not mentioned) of the persons who were 
 at the time of the accruing of the cause of action co- 
 partners in any such firm, to be furnished in such man- • 
 ner and verified on oath or otherwise, as the judge may 
 direct (O. xvi. r. 14). 
 
 In Minister v. Cox (10 App. Cas. 680) proceedings 
 had been commenced against Eailton & Company by 
 writ, and were then continued against Railton, " trad- 
 ing as Railton & Co.," to judgment, which was entered 
 by consent. The plaintiff issued execution against 
 Railton, and then, alleging that he had since discovered 
 that Cox was a partner, applied for leave to amend the 
 pleadings and judgment so as to make them accord with 
 the writ. The House of Lords decided (affirming the 
 decision of the Court of Appeal) that the judgment 
 against Railton alone could not be converted into a 
 judgment, against the firm. 
 
 * Sale of Goodwill. [ * 87] 
 
 PEARSON ( . PEARSON. 
 (27 Ch. Div. 145.) 
 
 A vendor of a business is not, in the absence Principle. 
 of express agreement, to be restrained from 
 soliciting his old customers. 1 
 
 An agreement was entered into in compromise of Summary of 
 
 an action between James Pearson and Theophilus lacts - 
 
 1 The vendor of a business and of the goodwill thereof may, 
 in the absence of express stipulations to the contrary, set up a 
 similar but not identical business, either in the same neighbor- 
 hood or elsewhere, and may publicly advertise the fact of his 
 having done so; but he must not solicit the customers of his old 
 business to cease dealing with the purchaser, or to give their 
 custom to himself. 14 Am. Law. Keg. (U. S.) 329. Goodwill 
 may be sold the same as any other personal property. Mussel- 
 man's App., 62 Pa. St. 81; Howe v. Learing, 19 How. 14; Dough- 
 erty u. Van Nostrand, 1 Hoflf. 68. 
 
164 SALE OF GOODWILL. 
 
 Pearson, for the sale of all the estate and interest 
 of the former in the business formerly carried on by 
 their father and James Pearson, under the title of 
 " James Pearson." The agreement provided that 
 nothing therein " should prevent James Pearson 
 I from carrying on the business of a potter and earthen- 
 
 ware manufacturer or any other business at such 
 place as he thought lit and under the name of 
 il James Pearson." 
 
 The Court of Appeal reversed the decision of 
 Kay, J. and held that Theophilus Pearson was not 
 entitled to an injunction restraining James Pearson 
 from soliciting the customers of the old firm. 2 
 
 In this case the Court of Appeal overruled Labou- 
 chere v. Dawson (L. E. 13 Eq. 322), decided twelve years 
 before, which had been " more than once doubted, fol- 
 lowed on two or three occasions, approved by one judge 
 and 'disapproved by another, and never either approved 
 or disapproved by the Court of Appeal collectively." 
 
 The effect of the decision in Labouchere v. Dawson, 
 as stated in the judgment of the Court of Appeal in 
 Pearson v. Pearson, was that the vendor of a business 
 and goodwill may. in the absence of any express agree- 
 ment to the coiitrary, carry on the same business 
 wherever he pleases, and solicit customers in any public 
 manner, but that he must not apply to any of the old 
 customers privately by letter, personally, or by traveller, 
 asking them to continue their custom with him and not 
 to deal with the vendees. The principle on which 
 r jl 88] "A" this decision was based was that persons are not at 
 liberty to depreciate the thing which they have sold, or, 
 to put the same idea in other words, " that a man can- 
 not derogate from his own grant." This principle was 
 dissented from by the Court of Appeal in the leading 
 case. Cotton, L.J., said : "The case 'of the plaintiff 
 
 2 Where a partner sells out all his share in the business the 
 presumption is that he meant to include the goodwill. Chnrton 
 v. Douglass, Johns. Eng. Ch. 174. If a certain name is valua- 
 ble, another person although having the same name will be re- 
 strained from using it though it be his own, where there is 
 strong evidence to show that the name was fraudulently used 
 for the purpose of taking advantage of the acquired reputation 
 of another. Fott v. Lee, 13 Iredell's Eq. 490; Churton r. Doug- 
 lass, 1 Johns. Eng. Ch. 74. 
 
SALE OF GOODWILL. 165 
 
 is founded on contract and the question is what are his 
 rights under the contract. There is no express cove- 
 nant not to solicit the customers of the business, but it 
 is said that such a covenant is to be implied. 1 " I have 
 a great objection to straining words so as to make them 
 imply a contract as to a point upon which the parties 
 have said nothing particularly, when it is a point which 
 was in their contemplatioa. It is-admitted that a per- 
 son who has sold the goodwill of his business may set 
 up a similar business next door and say that he is the 
 person who carried on the old business, yet such pro- 
 ceedings manifestly tend to prevent the old customers 
 going to the old place. I cannot see where to draw the 
 line. If he may by his acts invite the old customers 
 to deal with him and not with the purchaser, why may 
 he not apply to them and ask them to do so ? " 
 
 The previous authorities on the subject of sales of Definition of 
 goodwill are collected and reviewed in the arguments "good-will." 
 and judgments in the leading case. "Goodwill," was 
 defined by Lord Eldon in Cruttwell v. Lye (17 Ve&. 335) 
 in the oft-quoted phrase, " As nothing more than the 
 probability that the old customers will resort to the old 
 place." * What then is the effect of such a sale in the 
 absence of express stipulation ? On this point Lord 
 Eldon said. "Fraud would form a different considera- 
 tion; but, if that effect is prevented by no other means 
 than those, which belong to the fair course of improv- 
 ing a trade, in which it was lawful to engage, I should, 
 by interposing, carry the effect of injunction to a much 
 greater length than any decision has authorised, or 
 imagination even suggested." 
 
 In Churton v. Douglas (9 Ch. 174) Lord Hatherley, 
 then Wood, V.C., decided that the vendor may carry on 
 the same business where and as he pleases, and deal 
 with the customers of the old firm, provided only that 
 he does not represent himself as carrying on the old 
 business, or as being the successor of the old firm. 5 
 
 The judgment of Lord Eomilly in Labouchere v. 
 Dawson (ubi supra, ) the effect of which is stated above, 
 went beyond anything which had been decided by any 
 of his predecessors, but since the judgment of the Court 
 of Appeal, it can no longer be regarded as law. 
 
 3 In Elliott's App. 1 P. F. S. M. 161; Read, J., said that the 
 goodwill of an inn or tavern is local and does not exist inde- 
 pendently of the house in which it is kept. 
 
 4 Story on Partnership, Sect. 99. 
 
 5 The question of the sale of goodwill is clearly set forth in 
 Angier v. Webster, 14 Allen, 211. 
 
166 SALE OF GOODWILL. 
 
 In Grinesi v. Cooper and Company (14 Ch. T>. 596), 
 Jessel, M.R., commenced his judgment by citiDg the 
 observation of Lord Justice James, that the command 
 " Thou shalt not steal " is as much a portion of the law 
 of Courts of Equity as it is of Courts of Law, and in- 
 dicated his surprise that the proposition that a trader 
 who had sold for value his business and goodwill to 
 another man is entitled, notwithstanding, to solicit his 
 old customers to deal with him just as if no sale had 
 ever taken place. The injunction granted, however 
 (the form of which is given 14 Ch. D. 603), did not 
 [ ^ 89] restrain dealing, and it is pointed out in -^- Pearson v. 
 Pearson (ubi supra), that perhaps for this reason there 
 was no appeal. The decision in this case was disap- 
 proved of in Leggott v. Barrett (15 Ch. Div. 306), where 
 the Court of Appeal reversed the decision of Jessel, M. 
 ft. In this case the point was not argued in the Court 
 of first instance, as it was considered to be completely 
 covered by Gfinesi v. Cooper. An injunction was grant- 
 ed, restraining the defendant from soliciting or dealing 
 with the old customers. 6 The Court of Appeal disap- 
 proved of Ginesi v. Cooper, and restrained from "solicit- 
 ing" the old customers, but not from dealing with them. 
 "To enjoin a man," said Brett, L J., "or to prevent 
 him by means of damages when he does it, against 
 dealing with people whom he has not solicited, is not 
 only to enjoin him, but to enjoin them, for it prevents 
 them from having the liberty which anybody in the 
 country might have of dealing with whom they like." ' 
 A new point of departure in the doctrine was reached 
 by Walker v. Mottram (19 Ch. Div 355), where the 
 Court of Appeal decided (again reversing Jessel, M.E.) 
 that where the goodwill had not been so d voluntarily, 
 but compulsorily, by the trustees in bankruptcy, the 
 bankrupt could not be restrained from soliciting the 
 customers of the old business, the obligation being in 
 the nature of a personal obligation and not an incident 
 of the transfer of property. s The interest of these 
 
 6 In Hall's App., 60 Pa. St. 458, the defendant sold the good- 
 will of his business and set up the same business within a snort 
 distance of his old place of business. A decree was granted re- 
 straining hiru from holding himself out to the public by adver- 
 tisement or otherwise as continuing his former business, or 
 carrying it on at another place. 
 
 7 Good faith requires that a party who has sold the goodwill 
 of his business, should do nothing that tends to deprive the pur- 
 chaser of its benefits and advantages. Hall's App. [supra) and 
 McCord v. Williams, 15 Norris, 78. 
 
 8 Martin v. Van Schaick, 4 Paige, 479. 
 
SALE OF GOODWILL. 167 
 
 cases is however now to a considerable degree of an 
 historical nature, as they are to a large extent, if not 
 altogether, practically superseded by the decision in the 
 leading case. 
 
 Closely connected with this subject is that of "cove- Convenants 
 nants in restraint of trade." The principle on which in restraint 
 a covenant in restraint of trade is held bad is thus laid of trade - 
 down by Best, C.J., in the case of Homer v. Ashford 
 (3 Bing. 322) : " The law will not permit anyone to re- 
 strain a person from doing what the public welfare and 
 his own interest requires that he should do. Any deed 
 by which a person binds himself not to employ his tal- 
 ents, his industry, or his capital in useful undertaking 
 in the kingdom would be void, because no good reason 
 can be imagined for any person's imposing such a re- 
 straint on himself." Covenants in total restraint of 
 trade are absolutely void upon grounds of public policy, 
 and such covenants, even if partial, are presumed to be 
 void if nothing shews them to be reasonable. Cove- 
 nants, however, in partial restraint of trade, where 
 there is a fair and reasonable ground for the restriction, 
 are good and valid. 9 Kerr on Injunctions, 2nd ed. pp. 
 399 et seq , and see Roasillon v. Rousillon (14 Ch. D. 
 351) ; Mitchell v. Reynolds (1 P. Wms. 181) ; Mallan 
 v. May (11 M. & W. 665) ; Allsopp v. Wheatcroft (L. 
 E. 15 Eq. 59). 
 
 In Whittaker v. Howe (3 B. 383), Lord Langdale en- 
 forced by injunction a covenant on the part of an at- 
 torney not to practise within Great Britain for twenty 
 years. " The case cannot, however, be considered sound 
 law. It is quite inconsistent with Ward v. Byrne (5 
 M. & W. 548), which was decided after mature delib- 
 eration." Kerr on Injunction, 2nd ed. p. 400. 
 
 The authorities on the subject of covenants in re- 
 straint of trade and -fa the rights of the vendor of the [ -JL 90] 
 goodwill of a business was recently considered in Ver- 
 non v. Hallarn (34 Ch. D. 748), when Labouchere v. 
 Dawson was treated as distinctly overruled by the Court 
 of Appeal in Pearson v. Pearson, and Collier v. Chad- 
 wick (not yet reported). In this case it was held that 
 a covenant not to carry on the business of a manufac- 
 turer under a particular name or style, though it was 
 unlimited in point of space, was not a covenant in re- 
 straint of trade, but merely a covenant not to use a 
 particular name or style in trade, and was consequently 
 valid. 
 
 'Goodwill of a business may form the subject of a contract of 
 sale. Cauess v. Fessler, 39 Cal. 336. 
 
168 
 
 VENDOR AND PURCHASER ACT, 1874 
 
 In Davies v. Davies (W. N. 1887, p. 65) a covenant 
 by a partner "to retire, so far as the law allows, from 
 the trade or business of the partnership in all its 
 branches, and not to trade, act, or deal in any way so as 
 to either directly or indirectly affect the other part- 
 ners," was enforced as being not too vague, and not 
 void as in general restraint of trade. 10 
 
 In Baines v. Geary (35 Ch. T>. 154), under an agree- 
 ment for employment as a milk -carrier the servant un- 
 dertook that "he would not eitlier during the service 
 or after being discharged or quitting such service serve 
 or directly or indirectly interfere with any of the cus- 
 tomers served or belonging at any time to the master 
 his successor or assigns." It was h?ld, having regard 
 to Price v. Green (16 M. & W. 346), and similar cases 
 were covenants in restraint of trade had been held to 
 be divisible as regards space, and following Nicholls v. 
 Stretton (7 Beav. 42, 10 Q. B. 346, 350) that the un- 
 dertaking was severable and could be enforced in re- 
 spect of persons who were customers during the em- 
 ployment. 
 
 [ if 91] + The Vendor and Purchaser Act, 1874. 
 
 Vict. c. 78. 
 
 37 &38 
 
 Principle. 
 
 In re HAHGREAVBS & THOMPSON'S CONTRACT. 
 (32 Ch. Div. 454.) 
 
 The Court has jurisdiction on, a summons 
 under the 9th section of the Vendor and Pur- 
 chaser Act, 1874, not 'only to decide all questions 
 arising out of the contract {except such as affect 
 the existence or validity of the contract itself), 
 out also to make any order that would be just 
 as the natural consequence of its decision. 
 
 Summary of On a summons under section 9 of the Vendor and 
 facts. Purchaser Act, 1874, the Court was of opinion that 
 
 10 On the subject of goodwill in general see Bell v. Locke, 8 
 Paige Ch. 75; Partridge r. Mench, 2 Barb. Ch. 101; McFarlan v. 
 Stewart, 2 Watts, 111; Rupp v. Over, 3 Brewster, 133; Palmer v. 
 Graham, 1 Parson's Eq. 476; Holmes and others v. Holmes, 37 
 Conn. 278. In succession of Jean Journe, 21 La. An. 391; Colla- 
 day r. Baird, 4 Phila. 139; D. & H. Canal Co. <•. Clark. 13 Wal- 
 lace, 311. 
 
VENDOR AND PURCHASER ACT, 1874. 169 
 
 the minerals under a part of the property agreed to 
 be sold belonged to the lord of the manor, and made 
 a declaration that the vendors had not shewn a 
 good title, and ordered the deposit to be returned. 
 A further question arose whether the Court had 
 jurisdiction on the summons to order interest at 4 
 per cent from the date of payment of the deposit, 
 and the purchaser's costs of investigation of the 
 title, and the Court of Appeal decided both these 
 points in the purchaser's favour. 
 
 A new and. convenient mode of settling a variety of vendor and 
 questions arising with reference to the purchase of land Purchaser 
 which would under the old law have necessitated the -*«<< 1874, 
 institution of a suit for specific performance was pro- sect ' 
 vided by the 9th section of the Vendor and Purchaser 
 Act, 1874. That section provides that a vendor or pur- 
 chaser of real or leasehold estate in England, or their 
 representatives respectively, may at any time or times, 
 and from time to time, apply in a summary way to a 
 judge of the Court of Chancery in England in Cham- 
 bers in respect of any requisitions or objections or any 
 claim for compensation -fa or any other question arising r .jl. 92] 
 out of or connected with the contract not being a ques- 
 tion affecting the existence or validity of the contract, 
 and the judge shall make such order upon the applica- 
 tion as to him shall appear just, and shall order how 
 and by whom all or any of the costs of and incident to 
 the application shall be borne and paid. "The object 
 of the Legislature" (said Bacon, V.C. in Thompson v. 
 •Ringer, 44 L. T. N. S. 507) " in passing the Act, was to 
 diminish frivolous suits, and afford a more cheap and 
 speedy tribunal for determining questions between 
 vendor and purchaser." 
 
 In In re Burroughs n Lynn & Sexton's Contract (5 Ch. 
 Div. 601), the purchaser of a property which consisted 
 principally of heath land took an objection that the title 
 to the soil of the heath land was not shewn, but only a 
 title to right of pasturage over it. The vendor took out 
 a summons under the 9th section of the Vendor and 
 Purchaser Act 1874, asking for a declaration that the 
 purchaser's objections and requisitions had been suffi- 
 ciently answered, and that a good title had been shewn, 
 and that the vendors were entitled to have the contract 
 specifically performed, and that the purchasers might 
 
170 
 
 VENDOR AND PURCHASER ACT, 1874. 
 
 be ordered specifically to perform the same, and to pay 
 the costs of the application. The Court of Appeal held 
 that in proceedings under the 9th section of the Ven- 
 dor and Purchaser Act, 1874, the parties are in exactly 
 the same position, and with all the same rights that 
 they would have been under a reference as to title in a 
 judgment for specific performance ; that they were 
 therefore at liberty to produce evidence by affidavit 
 with the cross examination thereon. The statement of 
 the law contained in Burroughs, Lynn & Sexton's Con- 
 tract (ubi supra), would seem however to be somewhat 
 narrowed by the judgment of the Court of Appeal in 
 the leading case : " Although the Court is not in the 
 position in which it would be if it had the litigants be- 
 fore it in an action properly brought according to the 
 established practice of the Court, still there is authority 
 given us not only to decide the questions asked, but to 
 make an order which would be just, as the natural con- 
 Object of the sequence of what we have decided. The object of the 
 Legislature. Legislature was to enable either vendor or purchaser to 
 obtain the decision of the Court upon some isolated 
 point instead of being compelled to have recourse to the 
 whole machinery which would be put in motion by an 
 action or suit for specific performance." 
 
 The practice is to take out an originating summons, 
 which is to be intituled in the matter of the contract 
 and in the matter of the Vendor and Purchaser Act, 
 1874, and it is not unusual for the parties to agree upon 
 a short written statement of facts, which is signed by 
 the solicitor for the parties, and a copy of which is left 
 at Chambers either before or after the return of the 
 summons. (Daniell's Chancery Practice, 1382.) The 
 summons may be heard'in Chambers, or, as is the more 
 usual practice, adjourned into Court. Jessel, M.E., 
 adopted the practice where the title was good and the 
 purchaser desired it, of delivering judgment in open 
 Court, though the question had been argued in Cham- 
 bers : Coleman v. Jarroiv (4 Ch. D. 165). 
 
 ■fa The time for appealing is 21 days from the date 
 of simple refusal, or from the date of the perfection of 
 the order: In re Blyth and Young (13 Ch. D. 416). 
 
 It was held in Drapers Co. v. McCann (1 L. E. Ir. 
 13) that service of a summons out Qf the jurisdiction 
 under this Act may be allowed, but qucere whether this 
 decision can now be considered as correct having re- 
 gard to In re Busfield, Whaley v. Busfleld (32 Ch. Div. 
 123, 132 (seepos*, p 306) ). 
 Questions The following are some of the questions which have 
 
 Practice. 
 
 [*93] 
 
 Time for 
 appealing 
 
VENDuK AND PURCHASER ACT, 1874. 171 
 
 been determined under sect. 9 of the Vendor and Pur determined 
 chaser Act, viz. : — under the 
 
 Whether conditions of sale were misleading, In re se( = tion - 
 Marsh and Earl Granville (24 Ch. Div. 11). 
 
 As to the vendor's right to rescind, In re Terry and 
 White's Contract (32 Ch. Div. 14). 
 
 As to exercise of a power of sale, by administrator 
 with will annexed, In re Clay and Tetley (16 Ch. Div. 
 3 ) ; by trustees, In re Wright's Trustees and Marshall 
 (28 Ch. D. 93); time when it may be exercised, In re 
 Tanqueray-Willaume and Landau (20 Ch. Div. 465). 
 
 As to whether consents are necessary, Finnis to 
 Forbes (24 Ch. D. 587) (Charity Commissioners), In re 
 Earle and Webster's Contract (24 Ch. D. 144), Twee- 
 die v. Miles (27 Ch. D. 315) (beneficiaries). 
 
 To determine as to the validity of an appointment of 
 a trustee under sect. 31 of the Conveyancing Act, 1881, 
 in the place of a trustee who had been abroad for more 
 than twelve months, In re Coates to Parsons (34 Ch. Interest on 
 Div. 370); and see Clerke & Humphreys, Sales of deposit. 
 Land, p. 487, for a full enumeration of cases decided. 
 
 In the leading case a question arose as to the time 
 from which interest ought to be paid on the deposit. 
 On this point the judgment of the Court of Appeal was 
 as follows: — " I think interest ought to be given from 
 the day when the deposit was paid on this ground, that 
 at that time the vendors tried to sell what they had no 
 title to. Therefore from the very time when this de- 
 posit was made the vendors were in the wrong. It is 
 different from a case where in consequence of delay or 
 otherwise the purchaser may have had a right to say 
 the contract is at an end and he will not complete. 
 Then it may be that the deposit would only be wrong- 
 fully held from the time when the purchaser having a 
 right so to do had declared that he would be no longer 
 bound by the bargain. But here from the very first 
 the vendors were wrong in purporting to sell that which 
 they had not, namely, the minerals as well as the sur- 
 face." 
 
172 
 
 SPECIFIC PERFORMANCE. 
 
 L*94] 
 
 + Specific Performance. 
 
 ROSSITER v. MILLER. 
 (3 App. Cas. 1124.) 
 
 Principle. Where a complete contract can he collected 
 
 from a correspondence between the parties, the 
 Court will grant specific performance although 
 it was agreed that the terms should be embodied 
 in a formal contract, unless there was a condi- 
 tion suspending the final assent until the execu- 
 tion of the formal contract. 1 
 
 Summary of 
 
 facts. 
 
 Rossiter and others were the proprietors of cer- 
 tain land, and authorised White, a land agent, to- 
 dispose of it. The land was laid out in lots, and a 
 plan made, with conditions of sale printed on it. 
 One of these conditions set out the price of each lot T 
 and another required that a purchaser should, on 
 completion, execute a deed of covenant embodying; 
 the conditions. Miller verbally offered to purchase 
 some of the lots. White informed him that he must 
 purchase subject to the conditions stated on the- 
 plan, and promised to lay his offer before " the pro- 
 prietors." Shortly afterwards White wrote to Mil- 
 ler stating that " the proprietors " had accepted his- 
 offer subject to the conditions printed on the plan T 
 that " it was taken into consideration by them in 
 reducing the published price that you intended 
 building at once," and that he had requested their 
 solicitors to forward an agreement. Miller wrote 
 
 1 Where a complainant has an effectual remedy in his own 
 hands, chancery will not interfere. The court, for instance, will 
 not enforce the performance of a condition, the non-performance 
 of which would work a forfeiture, for the grantee has fixed his. 
 remedy. Pry on Specific Performance, Sec. 11, and see Marble 
 Co. v. Ripley, 10 Wallace, 359; Woodruff r. Water Power Co.. 10 
 N. J. Eq. 489. If a money payment will constitute a sufficient 
 redress a chancellor will not interfere. Richmond v. R. R. Co., 
 33 Iowa, 439; Penna. Co. v. Del. Co., 31 N. Y. 91 s 
 
SPECIFIC PERFORMANCE. 173 
 
 back that he would not be bound to build at any 
 given time, or at all, and that therefore the offer 
 had better be reconsidered "unless you are prepared 
 to leave me at liberty to da as I think best." 
 White wrote that his former lette'r was ■' not in- 
 tended to convey a conditional acceptance of your 
 -^ offer therein defined "; " in your own words you [ -^ 95] 
 are at liberty to do as you think best." Held, by 
 the House of Lords, that there was a completed con- 
 tract between the parties which Miller was bound 
 specifically to perform. 2 
 
 In this case the House of Lords, in reversing the 
 ■decision of the Court, of Appeal, and restoring the de 
 cision of Jessel, M.R., proceeded on a principle of law 
 which, as stated in Lord Hatherly's judgment, page 
 1143, had been thoroughly established by a uniform 
 line of decisions, and by precedents in the House of 
 Lords. That principle was stated by Lord Hatherley 
 as follows: "If you can find the true and important 
 ingredients of an agreement in that which has taken 
 place between two parties in the course of a corres- 
 pondence, then although the correspondence may not 
 set forth in a form which a solicitor would adopt if he 
 were instructed to draw an agreement in writing, that 
 which is the agreement between the parties, yet if the 
 parties to the agreement, the thing to be sold, the price 
 to be paid, and all those matters be clearly and dis- 
 tinctly stated, although only by letter, an acceptance 
 clearly by letter will not the less constitute an agree- 
 ment in the full sense between the parties, merely be- 
 cause that letter may say, 'We will have this agreement 
 put in due form by a solicitor.' " 
 
 Lord Blackburo, page 1151, declared the law to be 
 that quite independent of the Statute of Frauds there 
 must be a complete agreement, "if not there is no con- 
 tract, so long as the parties are only in negotiation; 
 even though they have agreed on all the cardinal 
 points, either party may retract. But the mere fact 
 
 2 At common law one party to a contract cannot complain of a 
 breach on the part of the other, unless he can show his own com- 
 pliance with the terms of the agreement in every particular, hut 
 in equity specific performance may be decreed even if the plain- 
 tiff is not able to fulfill his contract to the letter, in which case 
 a decree is entered with compensation for defects. Fry on Specific 
 Performance, Sec. 4. 
 
174 
 
 SPECIFIC PERFORMANCE. 
 
 [*96] 
 Contract by 
 correspon- 
 dence. 
 
 that the parties have expressly stipulated that there 
 shall afterwards be a formal agreement prepared em- 
 bodying the terms which shall be signed by the parties, 
 does not by itself show that they continue merely in 
 negotiation. It is a matter to be taken into account in 
 construing the evidence, and determining whether the 
 parties have really came to a final agreement or not. 
 But as soon as the fact is established of the final mu- 
 tual assent of the parties, so that those who draw up 
 the formal agreement have not the power to vary the 
 terms already settled, I think the contract is com- 
 pleted." 3 And see Bonnewell v. Jenkins (8 Ch. Div. 
 70), decided before the judgment of the House of Lords 
 in Rossiter v. Miller, where it was held that notwith- 
 standing the reference to a future contract, the letters 
 constituted a complete contract between the parties.* 
 See also Crossley v. May cock (L R. 18 Eq. 181;) Winn 
 v. Bull (7 Ch. D. 32). 
 
 On the other hand, if there be not an unqualified 
 acceptance of a contract, but an acceptance subject to the 
 condition that an agreement is to be prepared and agreed 
 upon between the parties, and until that condition is 
 fulfilled no contract is to arise, then the stipulation as 
 to the further contract is a term of the assent; there is 
 no agreement independently of that stipulation, and no 
 concluded contract. 5 
 
 -^ A very important case on the question whether a 
 contract can be made out by correspondence between 
 tbe parties is Hussey v. Home Payne (4 App. Cas. 
 311). In May v. Thompson, to which we shall presently 
 allude, this case was spoken of as affording a very good 
 illustration of the difference of opinion which we find 
 sometimes occurs between judges as to the meaning of 
 letters. The judge of first instance " came to one con- 
 clusion as to the meaning of some of the letters, a"nd 
 held that there was a concluded agreement; then the 
 Court of Appeal were unanimously of opinion that a 
 
 3 The remedy by action for a breach of contract in such a case 
 is extremely inadequate. See 1 Sugden, V. & P. 8th American 
 Ed. 543. 
 
 * The remedy of specific performance is most frequently ap- 
 plied to contracts for the sale of real estate. Bispham's Eq.„4th 
 Ed. Sec. 364. 
 
 5 If a binding agreement has been entered into for the sale of 
 real estate a court of equity will consider the vendor a trustee of 
 the legal title for the benefit of the vendee and the vendee is con- 
 sidered a trustee of the purchase money for the benefit of the 
 vendor. King v. Ruekman, 1 C. E. Green, 599; Richter i\ Selin, 
 8 S. & R. 425; Malin e. Id., 1 Wendell, 025; McKechnie r. Ster- 
 ling, 48 Barb. 330. 
 
SPECIFIC PERFORMANCE. 175 
 
 clause in one of the letters was a condition precedent, 
 and the House of Lords was of opinion that it was not 
 a condition precedent, but that there was no concluded 
 agreement." 6 
 
 In Hussey v. Home-Payne, the first two letters of Whole 
 the correspondence, if taken by themselves, would have series of 
 constituted a complete contract, but the subsequent let- te i 00 k e d a t 
 ters qualified their effect in such a way that the House 
 of Lords considered that the terms of the contract had 
 never been settled between the parties. On this point 
 the law was thus stated by the House of Lords: — "It 
 is one of the first principles applicable to a case of the 
 kind, that where you have to find your contract, or your 
 note or your memorandum of the terms of the contract, 
 in letters, you must take into consideration the whole 
 of the correspondence which has passed. You must not 
 at one particular time draw a line and say, 'We will 
 look at the letters up to this point and find in them a 
 contract or not, but we will look at nothing beyond.' 
 In order fairly to estimate what was arranged and 
 agreed, if anything was agreed between the parties, you 
 must look at the whole of that which took place and 
 passed between them." In one of the letters written 
 by the defendant's agent the phrase had occurred — 
 "subject to the title being approved by our solicitors." 7 
 This had been considered by the Court of Appeal to be 
 "plainly an additional term" which required acceptance, 
 and therefore prevented the contract from being a con- 
 cluded one, as it made it a condition that solicitors of 
 his own selection should approve of the title. As the 
 House of Lords considered that the correspondence, in- 
 dependently of these words, did not create a contract 
 between the parties, it was unnecessary to decide this 
 point, but Lord Cairns expressed a strong opinion that 
 the words in question could not be regarded as import- 
 ing a new term into the agreement, because, he said, as 
 was pointed out in the course of the argument, "it would 
 virtually reduce the agreement to that which is illusory. 
 
 6 Specific performance usually rests in the judicial discretion 
 of the chancellor. Smooth. Eea, 19 Md. 398; Pickering v. Id., 
 38 N. H. 400; Sherman p. Wright. 49 N. Y. 231; Shenandoah 
 Valley Rd. v. Lewis, 76 Va. 833; Oil Creek R. R. v. Atlantic & 
 G. W. R. R., 7 P. F. Sm. 65, and King v. Morford, 1 Sax. (N. J.) 
 274; Henderson o. Hays, 2 Watts, 148. 
 
 7 In a suit for specific performance a court of equity will not 
 decree that a purchaser is to accept a doubtful title. Herzberg 
 v. Irwin, 92 Pa. St. 48; Richmond v. Gray. 3 Allen, 25; Young 
 v. Rathbone, 1 C. E. Green, 224; Hoyt v. Tuxbury, 70 III. 331; 
 Fitzpatrick r. Featherstone, 3 Ala. 40; Smith v. Turner, 50 Ind. 
 372; People v. Stockbrokers' Building Co., 92 N. Y. 98. 
 
176 SPECIFIC PERFORMANCE. 
 
 It would make the vendor bound by the agreement, 
 but it would leave the purchaser perfectly free. He 
 might appoint any solicitor he pleased; he might change 
 his solicitor from time to time. There is no delectus 
 personarum. There is no appointment of an arbitrator 
 in whom both sides might be supposed to have confi- 
 dence. It would be simply leaving the purchaser, 
 through the medium of his solicitors, at liberty to say 
 from caprice at any moment, 'We do not like the title, 
 we do not approve of the title, and therefore the agree- 
 ment goes for nothing.' " 8 
 [ -fc 97] "^ Lord Selborne, in his judgment in the same case, 
 
 adhered to his observation in the case of Jervis v. Ber- 
 Stalute of ridge (L. R. 8 Ch. 351, 360) that the Statute of Frauds 
 Frauds. " j s a WP apon of defence not offence," and " does not 
 
 make any signed instrument a valid contract by reason 
 of the signature, if it is not such according to the good 
 faith and real intention of the parties." It was, he 
 said, especially important to keep that principle in 
 view when, as in the present case, it was attempted to 
 draw a line at one point of a negotiation conducted 
 partly by correspondence and partly at meetings be- 
 tween the parties without regard to the sequel of the 
 negotiations; which plainly shewed that the terms of 
 the intended agreement, which were of great practical 
 importance, and were so regarded on both sides, then 
 lernained unsettled and were still the subject of nego- 
 tiation between them. 
 
 In May v. Thompson (20 Ch. Div. 705), the Court 
 held that no judgment for specific performance or for 
 damages could be granted, as the time at which the 
 purchase was to take effect was left uncertain, 9 and the 
 subject-matter of the contract had not been agreed 
 upon, and as the parties had contemplated a formal 
 agreement. Jessel, M.R., in his judgment, said, "I 
 think the decisions of our Courts as to letters have gone 
 quite far enough, that is, in the spelling out of a con- 
 tract from letters when both parties intended a formal 
 contract to be executed. I think it very often happens 
 that both parties use expressions in letters which, read 
 alone, would amount to a contract, if we did not know 
 
 8 If the vendor is able to make a good title any time before the 
 decree, specific performance will be enforced. Fraker v. Brazel- 
 ton, 12 Lea (Tenn.1, 278; Luckett v. Williamson. ?.T Mo. 388; 
 Moss v. Hanson, 5 Harris, 379; Graham v. Hack with, 1 J. Marsh, 
 423. 
 
 9 Bank of Columbian. Hagner, 1 Peters, 455; Tiernan r. Ro- 
 land. 2 Harris, 429; Glover »■. Fisher, 11 111. 666; Brashier v. 
 Gratz, 6 Wheaton, 528; Hepburn v. Auld, 5 Cranch, 262. 
 
SPECIFIC PERFORMANCE. 177 
 
 that in fact neither of the parties intended those gene- 
 ral expressions to constitute a contract, and in that case, 
 if the Court lays hold of the language of the letters to 
 make a contract, it makes a contract for the parties which 
 the parties never intended to enter into." See Williams 
 v. Brisco (22 Ch. Div. 441), where it was held on the 
 construction of the correspondence that there was no 
 binding contract between the parties, and see as to 
 judgment where the defendant admitted in his defence 
 that he was unwilling to perform the contract, and did 
 not appear at the trial, Stone v. Smith (35 Ch. D. 188). Sufficient 
 The question as to what is a sufficient description of description, 
 the property is considered in Shardlow v. Cotterell (20 
 Ch. Div. 90). 10 
 
 In the case of a contract for the sale of land, the Contract for 
 plaintiff must shew two things : he must shew that sale of land - 
 there is an agreement concluded between the parties, 
 and that there is a memorandum in writing of the 
 agreement sufficient to satisfy the requirements of the 
 Statute of Frauds. The first of these points is con- 
 cerned with the question of the existence of the con- 
 tract. The second with the evidence rendered neces- 
 sary by the Statute of Frauds to make the contract 
 binding, " points often mingled in discussion, but 
 which should be kept separate in thought" " (Fry on 
 Specific Performance, 2nd ed. 119). 
 
 The law on the subject is thus summed up in Fry on Summary of 
 Specific Performance, 2nd ed. p. 121. The burden of law. 
 proving that there is a concluded contract rests on the 
 plaintiff. A binding contract may be constituted by 
 the proposal of one party and the acceptance of the 
 other, but as the proposal has no validity without the 
 acceptance, a -^- memorandum of offer which may be [ -^-98] 
 retracted until accepted, differs essentially from a 
 memorandum of agreement, which whenever signed, 
 is binding on the party who signs (citing Warner v. 
 Willington, 3 Drew. 523). The acceptance of a pro- 
 posal must be plain, unequivocal, unconditional, with- 
 
 10 The terms of the agreement under which the land is sold 
 must be certain. Dodd v. Seymour. 21 Conn. 476; Hammer v. 
 McEldowney, 10 Wright, 334; Kendall v. Almy, 2 Sumn. 278. 
 
 11 Specific performance of a written contract with parol varia- 
 tions may be enforced as in Gillespie v. Moon, 2 Johns. Ch. 585; 
 Mosby v. Wall, 23 Miss. 81; Tilton v. Id., 9 N. H. 385; Bradford 
 v. Union Bank, 13 How. 57; but in some States (following the 
 English rule) such contracts will not be enforced. Osborn i>. 
 Phelps, 19 Conn. 63; Climer v. Hovey, 15 Mich. 18; Dennis v. 
 Id., 4 Rich. Eq. 307. 
 
 12 MODERN EQUITY. 
 
178 
 
 PART PERFORMANCE. 
 
 Withdrawal 
 of offer. 
 
 Post office 
 the agent of 
 both parties. 
 
 out variance between it and the proposal, and it must 
 be communicated without unreasonable delay. 12 
 
 An offer to sell property may be withdrawn before ac- 
 ceptance without any formal notice. It is sufficient if 
 the person to whom the offer was made has actual knowl- 
 edge that the other party has done something incon- 
 sistent with the continuance of the offer, as by selling to 
 a third person. 13 Dickinson v. Dodds (2 Ch. Div. 463). 
 
 With regard to the important question as to the time 
 when a contract contained in letters is considered to 
 be accepted may now be regarded as settled by the 
 Household Fire Co. v. Grant (4 Ex. Div. 216) (where 
 the previous authorities commencing with Dunlop v. 
 Higgins, 1 H. L. 0. 381, are reviewed) that "the post 
 office is the common agent of both parties," and that 
 as soon as a letter of acceptance is delivered to the post 
 office, the contract is made as complete and final, and ab- 
 solutely binding, as if the acceptor had put his letter into 
 the hands of a messenger sent by the offerer himself as 
 his agent to deliver the offer and receive the acceptance. 
 
 Part Performance. 
 
 Principle. 
 
 Summary of 
 facts. 
 
 MADDISON v. ALDERSON. 
 
 (8App. Cas. 467.) 
 
 The equity of part performance to take a case 
 out of the 4:ih section of the Statute of Frauds 
 does not extend to contracts concerning any 
 other subject-matter than land, and the acts of 
 part performance must be unequivocally refer- 
 able to the agreement, and must be such as to 
 change the relative position of the parties with 
 regard to the subject-matter of the agreement? 
 
 The plaintiff claimed, as heir-at-law of Thomas 
 
 12 Minturn v. Baylis, 33 Cal. 129: Bread r. Hunger, 88 N. C. 
 297; Waringu. Ayers, 40 N. Y. 357; Jordon v. Deaton,24 Ark.'704. 
 
 13 If a person has been guilty of laches or has shown backward- 
 ness in performing his part of the contract — specific performance 
 will not be decreed. Cadwalader's Appeal, 7 P. F. Sm. 158; 
 Dragoo v. Id., 50 Mich. 573; and Rose r. Swan, 56 111. 40; Hub- 
 bell v. Von Schoening, 49 N. Y. 326; Holgate v. Eaton, 116 U. 
 S. 33; Kinney v. Redden, 2 Del. Ch. 46. 
 
 1 May on Fraudulent Conveyance, 378 (Text Book Series). 
 
PART PERFORMANCE. 179 
 
 Alderson who had died intestate, to be entitled to 
 the title deeds of a farm. Elizabeth Maddison by 
 her -fc counter-claim asked for a declaration that she [ -fc 99] 
 was entitled to a life estate in the farm, and to re 
 tain the title deeds for her life. The jury found 
 that Thomas Alderson had induced Elizabeth Mad- 
 dison to continue as his housekeeper for many 
 years without salary, and to give up other prospects 
 of establishment in life by a verba] promise that he 
 would make a will and leave her a life interest in 
 the farm in question. A will had been made in ac- 
 cordance with the promise, and signed by Thomas 
 Alderson, but it was not duly attested, and the 
 question arose whether the parol agreement was 
 taken out of the Statute of Frauds by part' per- 
 formance. Held by the House of Lords, that Eliz- 
 abeth Maddison's counter-claim failed. 2 
 
 In this case the House of Lords in upholding the de- Costs, 
 cision of the Court of Appeal (7 Q. B. Div. 174) (by 
 which the judgment of the original Court (5 Ex. D. 
 293), where the facts are very fully stated, had been re- 
 versed), exercised its discretionary power in the appel- 
 lant's favour by dismissing the appeal without costs. 
 " I am sorry," said Lord Selborne, " for the appellant's 
 disappointment, through the ignorance of her late mas- 
 ter as to the attestation requisite for a valid testament- 
 ary act. But the law cannot be strained for the pur- 
 pose of relieving her from the consequences of that mis- 
 fortune. It would, in my opinion, be much strained, 
 and the equitable doctrine of part performance of parol 
 contracts would be extended far beyond those salutory 
 limits within which it has hitherto been confined if we 
 were to reverse the order of the Court of Appeal." 
 
 The judge before whom the case was originally tried 
 
 The general doctrine of part performance is recognized and well 
 established throughout the United States. Patterson v. Yeaton, , 
 47 Me. 308; Arguello v. Edinger, 10 Cal. 150; Ottenhouse v. 
 Burleson. 11 Texas, 87; Printup v. Mitchell, 17 Ga. 558; Camp- 
 bell v. Freeman, 20 W. Va. 398. 
 
 2 If there is a verbal contract for the sale of real estate or any 
 interest therein and is acted upon so that the parties caDUot be 
 restored to their original position neither party can refuse to 
 perform on the ground that the Statute of Frauds has not been 
 complied with. See Adams' Eq. 86. 
 
180 PART PERFORMANCE. 
 
 and the Court of Appeal had both agreed in arriving at 
 the conclusion that a contract was proved under which 
 E. Maddison would certainly have been entitled to re- 
 lief but for the provisions of the Statute of Frauds, the 
 point upon which they disagreed was whether there was 
 part performance sufficient, as it is technically phrased, 
 "to take the case out of the Statute of Frauds." On 
 this point the House of Lords, upholding the decision 
 of the Court of Appeal, decided against E. Maddison's 
 claim, and their judgments contain an extremely valu- 
 able review of the principles by which the Courts are 
 guided in dealing with the "equity of part perform- 
 ance." 3 
 Statute of The 4th section of the Statute of Frauds (inter alia) 
 
 Frauds, sect, provides that "no action shall be brought to charge any 
 person upon any contract or sale of lands, tenements, or 
 hereditaments, or any interest in .or concerning them 
 unless the agreement upon which such action shall be 
 [ "^- 100] -^-brought or some memorandum or note thereof shall be 
 in writing, and signed by the party to be charged there- 
 with or some other person thereunto by him lawfully 
 authorised." 
 
 It has been settled by a long series of cases, among 
 which may be mentioned the well-known case of Leroux 
 v. Brown (12 C. B. 824) and the recent case of Britain 
 v. Rossiter (11 Q. B. Div. 123), that this section of the 
 Statute of Frauds does not avoid parol contracts, but 
 only bars the legal remedies by which they might other- 
 wise have been enforced. From this the law as to the 
 equitable consequences of part performance naturally 
 results. "In a suit founded on such part performance," 
 said Lord Selborne, " the defendant is really ' charged ' 
 upon the equities resulting from the acts done in execu- 
 tion of the contract and not (within the meaning of the 
 statute) upon the contract itself. If such equities were 
 excluded injustice of a kind which the statute cannot be 
 thought to have had in contemplation would follow." 4 
 Whether the doctrine by which acts of part perform- 
 ance are allowed to take a case out of the Statute of 
 Frauds ever ought to have been established is a ques- 
 tion on which there has been some considerable doubt 
 among the highest authorities, and Lord Blackburn (8 
 App. Cas. p. 489) expressly says that if the matter were 
 
 3 The difficulty in most cases is to say what will take a case 
 out of the statute. Milliken v. Dravo, 17 P. F. Sm. 230. 
 
 4 Going into possession of the estate and making improvements 
 will be sufficient to take the case out of the statute. Freeman v. 
 Freeman, 43 N. Y. 3* : Dunn r. Stevens, 94 Ind. 181 ; Deniston 
 v. Hoagland, 67 111. 265. 
 
PART PERFORMANCE. 181 
 
 res Integra he would reEuse to put such a construction 
 on the statute, and practically to interpolate into the 
 section the 'words " or unless possession of the lands 
 shall be given and accepted." Be that as it may, the 
 doctrine has now been completely established. "If it 
 was originally an error, it is now communis error and 
 makes the law." In order, however, to prevent a re- 
 currence of the mischief which the statute was passed 
 to suppress, the application of " the equity of part per- 
 formance " has been limited by the following princi 
 pies : — 
 
 1. The act of part performance must bfl unequivocal. Limitations 
 It must have relation to the one agreement relied upon, of the doc- 
 and to no other. It must be such, in Lord Hardwicke's rlne ' 
 words (2 Ainb. 587), as could be done with no other 
 
 view or design than to perform that agreement. It 
 must be sufficient of itself, and without any other 
 information or evidence, to. satisfy a Court, from the 
 circumstances it has created and the relations it has 
 formed, that they are only consistent with the assump- 
 tion of the existence of a contract the terms of which 
 equity requires, if possible, to be ascertained and en- 
 forced. 5 
 
 2. There must be some evidentia rei to connect the 
 alleged part performance with the alleged agreement. 
 The reason which is given for this principle is that 
 otherwise there would not be enough in the situation in 
 which the parties are found to raise questions which 
 might not be solved without recourse to equity. 6 
 
 3. It is not enough that an act done should be a con- 
 dition of or good consideration for a contract, unless it 
 is as between the parties, such a part execution as to 
 change their relative positions as to the subject matter 
 of the contract. The acts must be such as to render 
 non-performance a fraud. 7 
 
 ~fc 4. The equity of part performance does not ex- [ -^ 101] 
 tend to contracts concerning any other subject matter 
 than land, 8 per Lord Selborne (8 App. Cas. 474), citing 
 
 5 Christy v. Barnhart, 2 Harris (Pa.), 260 ; Wilmer v. Farris, 
 40 Iowa, 310. 
 
 6 Green v. Richards, 8 C. E. Green, 32 and 539 ; Moore v. 
 Small, 7 Harris, 461. 
 
 7 Peckman v. Barker, 8 E. I. 17 ; Wack v. Sorber, 2 "Wharton, 
 387 ; Casler v. Thompson, 3 Green's Ch. 59. 
 
 8 The fact that the contract concerns realty gives the parties a 
 primd facie right to come into equity and such contract may be en- 
 forced not only between the original parties but also between any 
 persons claiming under them. McMorris v. Crawford, 15 Ala. 
 271; Lavertyu. Moore, 33 N. Y. 658; Walker v. Kee, 16 S. C. 
 76; Tiernan v. Roland, 3 Harris, 429. 
 
182 
 
 PART PERFORMANCE. 
 
 Companies 
 and corpor- 
 ations 
 
 the decision of the Court of Appeal in Britain v. Ros- 
 siter (11 Q. B. Div. 123). 
 
 The following circumstances have been held insuffi- 
 cient for the purpose of taking a case out of the Statute 
 of Frauds: 
 
 1. Acts preparatory to the completion of a contract, 
 ancillary or introductory acts as they are sometimes 
 called, ex gr. delivery of abstracts, going to view an es- 
 tate, 9 &c: Clerk v. Wright (1 Atk. 13), and Whaley v. 
 Bagenal (1 Bro. P. 0. 345). 
 
 2. The mere holding over by a tenant, " unless qual- 
 ified by the payment of a different rent ;" 10 Wills v. 
 Stradling (3 Vesey, 381). 
 
 3. " Desisting from the prosecution of a purchase," 
 Lamas v. Bailey (2 Vern. 627), where the plaintiff, 
 being engaged in a treaty for the purchase of land, de- 
 sisted in order that the defendant might buy it on an 
 agreement that he should have part of it when so bought 
 at a proportionate price. 
 
 4. The fact ( O'Reilly v. Thompson, 2 Cox, 271) that 
 the plaintiff had obtained from a third party a release 
 of a right to a lease claimed by him on an agreement 
 that the defendant would grant to the plaintiff a lease 
 of the same premises on certain terms. Sales under a 
 decree of the Court are excepted from the statute. 
 
 5. It has been decided, after some vacillation among 
 the authorities, that payment of a part or even of the 
 whole of the purchase-money is not an act of part per- 
 formance." Clinan v. Cooke (1 Sch. &Lef. 22); Watts 
 v. Evans (4 Y. & C. Ex. 579). 
 
 It was held in Buckmaster v. Harrop (7 Ves. 346) 
 (cited Fry on Specific Performance, 2nd. ed. p. 265) 
 that payment of auction duty, being by the revenue law 
 essential to the contract, was not an act of part per- 
 formance. But see now 8 & 9 Vict c. 15, by which the 
 auction duties are abolished. And see further as to 
 part performance, Pry on Specific Performance, 2nd ed. 
 p. 252 et seq. 
 
 The doctrine of part performance applies to com 
 panies and corporations, as well as to individuals : Wil- 
 
 9 The mere fact that the purchase money has been paid is not 
 sufficient. Evarts v. Agnes, 4 Wis. 343 ; Malins v. Brown, 4 
 Comstock, 403. 
 
 10 If the vendee is already in possession of the property the 
 continuance of the possession is not considered a part performance 
 to take the case out of the statute of frauds. Christy v. Barn- 
 hart, 2 Harris, 260; Mahana v. Blunt, 20 Iowa, 142. 
 
 11 Because under peculiar circumstances the purchaser can be 
 restored to his original position by repayment. Johnson v. Hub- 
 bell, 2 Stock, 332; Everts v. Agnes, 4 Wis. 343. 
 
PART PERFORMANCE. 183 
 
 son v. West Hartlepool Railway Co. (34Beav. 187; 2 De 
 G. J. & Sm. 475). 
 
 It was contended in the leading case that E. Maddi- 
 son was entitled to succeed on the ground that the tes- 
 tator was bound to make good his representations to her. 
 The House of Lords held, however, on this point, up- 
 holding the decision of the Court of Appeal and dis- 
 senting from Loffus v. Maw (3-Giff. 592), that the prin- 
 ciple that a man is bound to make good his represen- 
 tation, the doctrine of "estoppel by representation," 
 as it is called, is applicable only to representations as 
 to some state of facts alleged to be at the time actually in 
 existence, and not to promises de futuro which, if bind- 
 ing at all, must be binding as contracts. See Maunsell v. 
 White (4 H. L. C. 1039) ; Money v. Jordan (5 H. L. C. 185). 
 
 It has been settled by a series of authorities, among 
 which may be mentioned Lassence v. Tierney (1 Mac. 
 & G. 551), Warden v. Jones -fc (2 De G. & J. 76), Caton r jl 1021 
 v. Caton (L. E. 2 H. L., affirming L. R. 1 Ch. 137), 
 that marriage is not an act of part performance which Marriage is 
 will take a parol contract out of the statute. 12 The not P art 
 Statute of Frauds expressly provides "that no action pel ormance - 
 shall be brought whereby to charge any person upon 
 any agreement made upon consideration of marriage, 
 unless the agreement upon which such action shall be 
 brought, or some note or memorandum thereof, shall be 
 in writing and signed," &c. 
 
 In Warden v. Jones, where there was a post-nuptial 
 agreement reciting that it was made in pursuance of an 
 ante-nuptial agreement, Lord Cranworth disposed of 
 all the authorities by saying, " It cannot be enough 
 merely to say in writing that there was a previous part 
 agreement. It must be proved there was such an 
 agreement, and to let in such proof is precisely what 
 the statute meant to forbid (per Jessel, M.R., Trowell 
 v. Shenton, 8 Ch. D. 324). 
 
 Where, however, a father on the marriage of his 
 daughter promised to give certain leaseholds, and then 
 after the marriage let his son-in-law into possession, gave 
 him the title deeds, and allowed him to expend money 
 on the land, the case was held to be taken out of the 
 statute : Surcombe v. Pinniger (3 De G. M. & G. 571). 
 
 Where the contract has not been put in writing by Fraud, 
 reason of the fraud of one of the parties, the case is 
 taken out of the statute as regards that party. 13 
 
 12 Bispham's Eq., 4th ed. sec. 385. 
 
 13 The statute was passed to prevent frauds and equity will not 
 allow it to he used or set up for the purpose effecting a fraud. 
 
184 
 
 LIABILITY OF TRUSTEES. 
 
 Purchase- 
 money pay- 
 able by in- 
 stalments 
 
 Remedy 
 mutual. 
 
 On this principle in Chattock v. Mutter (8 Ch. D. 
 177), where the agreement was uncertain, the Court, 
 considering that the defendant had acted fraudulently, 
 directed a reference to Chambers to ascertain what the 
 plaintiff was entitled to, and ordered the defendant to 
 convey it. 
 
 In Nives v. Nives (15 Ch. D. 649), where the pur- 
 chase-money was payable by instalments, some of 
 which was not yet due, the vendor obtained judgment 
 for specific performance, with a declaration of lien on 
 the property and liberty to apply as to future instal- 
 ments as. they accrued due. 
 
 It is well established that the remedy is mutual, and 
 that the vendor may bring his action in all cases where 
 the purchaser could sue for specific performance of the 
 contract, and this independently of any question on 
 the Statute of Frauds : u Fry on Specific Performance, 
 2nd. ed. p. 25. 
 
 [*103] 
 
 Principle. 
 
 -fa Liability of Trustees. 
 
 SPEIGHT t. GAUNT. 
 (9 App. Cas. 1.) 
 
 A trustee cannot delegate his trust? hut he 
 may in the administration of the trust funds 
 employ agents, bankers, brokers and others, in 
 cases of moral necessity? or in the usual course 
 of business, and in the absence or negligence or 
 default he will not be held liable for loss. 3 
 
 Summary of ^ trustee employed a broker to buy securities of 
 facts, certain municipal corporations authorized by his 
 
 u See upon the subject generally, Sweeney v. O'Hara, 43 Iowa, 
 36; Hardesty v. Richardson, 44 Md. 617; Gibbenyt). Burmasster, 
 3 P. F. Sm. 332: Miller v. Ball, 64 N. Y.286; Newton v. Swazey, 
 8 N. H. 9; Annan v. Merritt, 13 Conn. 478. 
 
 1 Not even to a co-trustee. Pearson v. Jamison, 1 McLean C. 
 C. 197; Hawley v. James, 5 Paige, 487. 
 
 2 Telford v. Barney, 1 Iowa, 591 ; Bowen i<, Seeger, 3 W. & S. 
 222: Lewis v. Reid, 11 Ind. 239; Abbott v. Rubber Co., 33 Barb. 
 579 ; Leggett t>. Hunter, 19 N. Y. 445 ; Blight v. Schenck, 10 
 
 , Barb. 285. 
 
 3 It is not settled how far a trustee is responsible for money 
 collected by an attorney-at-law whom he has employed, Perry 
 
LIABILITY OF TRUSTEES. 185 
 
 trust. The broker gave the trustee a bought note 
 which purported to be subject to the rules of the 
 London Stock Exchange, and obtained over £15,000 
 on a statement that the money would have to be 
 paid next day, which was the next settling-day. It 
 appeared from the evidence that some of the secur 
 ities were not bought and sold on the Stock Ex- 
 change, but were only obtainable direct from the 
 corporations, though applications were sometimes 
 made through agents. There was also evidence that 
 the form of the bought notice would have excited 
 the suspicions of an expert. The broker never ob- 
 tained the securities, and shortly afterwards ab- 
 sconded, and the trust money was absolutely lost. 
 In an action to compel the trustee to make good the 
 loss with interest at 4 per cent., the House of Lords 
 decided (affirming the decision of the Court of Ap- 
 peal) that he was not liable/ 
 
 In this case, which was described by Lord Blackburn 
 as not only of importance to the parties themselves on 
 account of the amount of money involved, but also of 
 general importance with regard to the principles on 
 which the Court acts in respect to the liability of trus- 
 tees -^ to make good losses of trust funds, the House [ -fa 104] 
 of Lords confirmed the rule laid down by Lord Chan- 
 cellor Hardwicke more than 130 years before in .Ex Principle in 
 parte Belcher (Arab. 218). The general principle estab- Ex parte 
 lished by Ex parte Belcher was stated by Lord Black- Belcker - 
 burn (p. 19) to be — that where there is a usual course 
 of business, the trustee is justified in following it, 
 though it may be such that there is some risk that the 
 property may be lost by the dishonesty or insolvency of 
 an agent employed. 5 
 
 That authority, said Lord Selborne (p. 4), has ever 
 
 on Trusts, Sec. 405. A trustee is required to act with such dili- 
 gence in conducting the trust estate as he would if it were h:'s 
 own. Neff's App., 7 P. F. Sm. 91. 
 
 * If, however, there is any improper dealings or gross negli- 
 gence on the part of the trustee he will he held liable. Taylor 
 v. Roherts, 3 Ala. 86; Latroben Tiernan, 2Md. Ch. 474, Dowin's 
 App., 11 Casey, 294; Clark v. Id., 8 Paige, 153; Monell v. Id., 5 
 Johns, 283. 
 
 5 A trustee is entitled to the advice and assistance of the court 
 in the execution of his trust. Dill v. Wisner, 88 N. Y. 160. 
 
186 
 
 Lord St. 
 
 Leonards 1 
 
 Act. 
 
 LIABILITY OF TRUSTEES. 
 
 ) 
 
 Limitations 
 to rule in 
 Ex parte 
 Belcher. 
 
 since been followed, and in conformity with it the 
 statute 22 & 23 Vict. c. 35 (Lord St. Leonards' Act, s. 
 31, enacts that every instrument creating a trust shall 
 be deemed to contain a clause exonerating the trustees 
 from liability for any banker, broker, or other person 
 with whom any trust moneys or securities may be de- 
 posited. Neither the statute, however, nor the doctrine 
 of Ex parte Belcher, Lord Selborne went on to say, 
 authorises a trustee to delegate at his own will and 
 pleasure the execution of his trust and the care and 
 custody of trust moneys to strangers in any case in 
 which (to use Lord Hardwicke's words) there is no 
 " moral necessity from the usage of mankind " for the 
 employment of such an agency. 6 The case of Rowland 
 v. Wiiherden (3 Mac. & G. 568, 574), Floyer v. Bostock 
 (35 Beav. 603, 606), and many others, shew that trus- 
 tees bound to invest trust moneys in authorised securi- 
 ties ' are prima facie answerable for the proper care 
 and custody of such trust moneys until they are actu- 
 ally so invested, 8 and will not be exonerated from lia- 
 bility if in the meantime they leave them in other 
 hands, though the hands of professional advisers or 
 agents to whose assistance for many purposes connected 
 with the trust they may properly have recourse. 9 
 
 The judgments of the Law Lords in Speight v. Gaunt 
 would, indeed, appear to establish the following limita- 
 tions to the rule of Ex parte Belcher : — 
 
 1. A trustee must not choose investments other than 
 those permitted by the terms of the trust, though they 
 may be such as an ordinary prudent man of business 
 would select for his own money. 10 
 
 6 The position of trustee is one of personal confidence and for 
 this reason he cannot delegate his authority. Hawley v. James 
 [supra). 
 
 ' He cannot invest the trust funds in personal securities. 
 Wills' App., 10 Harris, 330 ; Moore v. Hamilton, 4 Fla. 112 ; 
 Harding v. Larned, 4 Allen, 426; Smith v. Id., 4 Johns. Ch. 281. 
 
 8 In several of the United States the subj ect of investment by 
 trustees is regulated by statute. 
 
 9 The trustee must be careful to make the deposits in the name 
 of the trust estate and not to his personal credit and should not 
 mix the trust funds with his own ; if he does he will be liable 
 for any loss which may result. Marine Bank v. Fulton Bank, 2 
 Wallace, 252 ; McAllister v. Commonwealth, 4 Casey, 486 ; De 
 Jarnette v. Id., 41 Ala. 709; School v. Kirwin, 25 111. 73. 
 
 10 He must not employ the funds in trade or speculation and 
 if he does the cestui que trust may take either the amount in- 
 vested with interest, or the profits of the business. McKnight's 
 Executors v. Walsh, 8 C. E. Green, 146 ; Kobinett's App., 12 
 Casey, 174; Kyle v. Barnett. 17 Ala. 306. If he has a discretion 
 as to the ip vestments it is not good policy for him to invest in 
 
LIABILITY OF TRUSTEES. 187 
 
 2. He ought not to deposit the money with an agent 
 till the investment is foand, for that is in effect lending 
 it on the agent's personal security. 11 
 
 3. If there be no moral necessity, or sufficient prac- 
 tical reason, from the usage of mankind or otherwise, 
 for the payment to the agent the trustee will be held 
 liable. 12 
 
 4. The usual course of business at the time of the 
 transaction is to be taken into account. " What was at 
 one time the usual course," said Lord Blackburn, "may 
 at another time be no longer usual." This point he 
 illustrated by the practice of crossing cheques, which 
 has arisen within living memory. 
 
 The principle that trustees acting according to the Employment 
 ordinary course of business and as prudent men are of a g ents - 
 not liable for the default of their agents, is subject, 
 moreover, to the limitation that the agents must not 
 ■fc be employed out of the ordinary scope of their bus- [ -fa 105] 
 iness (Fry v. Tapson 28 Ch. D. 268). In that case 
 the trustees had, at the suggestion of their solicitor, 
 and without exercising an independent judgment, em- 
 ployed a valuer who was the agent of the mortgagor, 
 and without knowledge of the locality where the prop- 
 erty was situated. The valuer made an inflated report, 
 the trustees acted upon it, and were held liable for the 
 loss thus occasioned. 
 
 It has been held in In re Brier (26 Ch. Div. 238) Statutory 
 that the effect of the statutory indemnity conferred upon lndemnlt y- 
 trustees by sect. 31 of 22 & 23 Vict. c. 35, that when 
 an executor or trustee has properly employed an agent, 
 and a loss has been occasioned, the burden of proof is 
 thrown on those who seek to charge him. 
 
 The " two-thirds rule," as it is called, with regard to The "two- 
 trustees' investments upon the security of landed prop- thirds" rule. 
 erty, 13 laid down by Lord Cottenham more than half a 
 century ago, in Stickney v. Sewell (1 My. & C. 8), has 
 been carefully considered in several recent cases. This 
 rule has been stated in Lewin on Trusts, 8th ed. p. 325, 
 
 personal securities. Barney v. Saunders, 16 Howard, 545 ; 
 Holmes ». Dring, 2 Cox. 1 ; Nance o. Id., 1 S. C. (N. S.) 209; 
 Swoyer's App., 5 Barr, 377. 
 
 11 A trustee will not he liahle for the failure of a hank, pro- 
 vided he has not suffered the fund to remain there for an un- 
 reasonable time. 
 
 12 If he allows the funds to remain with an agent by way of 
 investment he will be compelled to make good their loss. Perry 
 on Trusts, Sec. 443. 
 
 13 Mortgages on real estate are considered proper investments 
 for trustees in the United States. Perry on Trusts, Sec. 457. 
 
188 
 
 LIABILITY OF TRUSTEES. 
 
 Trustees not 
 liable. 
 
 Trustees 
 liable. 
 
 r * 106] 
 
 Trustees' 
 investments. 
 
 thus: — " Trustees cannot be advised to advance more 
 than two-thirds of the actual value of the estate if it be 
 freehold lands, and if the property consists of freehold 
 houses they should not lend so much as two-thirds, but 
 say one-half the actual value! The rule, however, of 
 two-thirds or one-half is only a general one, and where 
 trustees have lent on the security of property of less 
 value, but have acted honestly, they have been protected 
 by the Court and have been allowed their costs. As to 
 buildings used in trade, and the value of which must 
 depend on external and uncertain circumstances, trus- 
 tees would not in general be justified in lending so 
 much as one-half." In In re Godfrey, Godfrey ■ v. Faulk- 
 ner (23 Ch. D. 483), Bacon, V.C., said that the rule 
 had never been applied with mathematical strictness, 
 and declined to apply it to a case where a farm had 
 become unlettable and unsaleable owing to unfavoura- 
 ble weather. 
 
 la the subsequent case, Smethurst v. Hastings (30 
 Oh. D. 490), it was held by the same judge that trus- 
 tees who had invested money on the speculative secur- 
 ity of sub-mortgages of leasehold houses which were 
 unfinished and unlet, part of an undeveloped building 
 estate, without having an independent or trustworthy 
 valuation, were liable to make good the loss. 
 
 In In re Whiteley, Whiteley v. Learoyd (33 Ch. Div. 
 347), where trustees, though advised by a competent 
 solicitor and a competent surveyor, were held liable for 
 loss occasioned by an investment on freehold brick- 
 works, Lindley, L.J., said that the duty of a trustee is 
 not to take such care only as a prudent man would take 
 if he had only himself to consider. The duty rather is 
 to take such care as an ordinary prudent man would 
 take if he were minded to make an investment for the 
 benefit of other people for whom he felt morally bound 
 to provide. 
 
 In In re Olive, Olive v. Westerman (34 Ch. D. 72), 
 Kay, J., considered that the trustees had acted most 
 incautiously, and had not obtained a proper valuation, 
 and that they must therefore be held liable. 
 
 ■fa With regard to the subject of trustees' investments 
 " authorized by law," in the absence of express power, 
 the effect of 22 & 23 Vict. c. 35, s. 32; 23 & 24 Vict. c. 
 38, s. 11, and the General Order of 1st Feb., 1861, made 
 in pursuance of that Act; 23 & 24 Vict. c. 145, s. 25; 
 30 & 31 Vict. c. 132, and 34 & 35 Vict. c. 47, s. 13, is 
 to authorize investments in " the permanent public 
 funds and government securities of the United King- 
 
LIABILITY OF TRUSTEES. 189 
 
 dom, freehold or copyhold securities in England, Wales, 
 or Ireland, real securities in Scotland, the stock of the 
 Banks of England and Ireland, the old and new East 
 India Stocks, and investments coming under the de- 
 scription in the Act of 1867 of ' securities the interest 
 of which is guaranteed by Parliament.' " H 
 
 Metropolitan Stock under 34 & 35 Vict. c. 47, s. 13; 
 and see Geare's Investment of Trust Funds, pp. 71 
 et seq. 
 
 As a general rule a power to invest carries with it 
 the power to vary the investments. In re Clergy Orphan 
 Corporation (L. B. 18 Eq. 280). 
 
 See generally on the subject of the leading case 
 Geare's Investment of Trust Funds, where, at p. 115, 
 the authorities with regard to investments by trustees 
 are summed up in the following four propositions: — 
 
 1. In the investment of trust funds the trustees 
 should never employ the solicitor who acts for the bor- 
 rower. Waring v. Waring (3 Ir. Ch. Hep. 331). 
 
 2. Trustees when entertaining the question of invest- 
 ment, should not favour the tenant for life at the ex- 
 pense of the remainderman. Tickner v. Old (L. B. 18 
 Eq. 422). 
 
 3. Any conditions annexed to the power to invest or 
 vary investments should be observed strictly. Bateman 
 v. Davis (3 Mad. 98); but see Stevens v. Robertson (37 
 L. J. Ch. (N.S.) 499). 
 
 4. Trustees should avoid making any investment 
 which subjects the trust funds to the control of any one 
 of the trustees singly. 15 Consterdine v. Consterdine (31 
 Beav. 331); Lewis v. Nobbs (8 Ch. D. 591). 
 
 It may here be noticed that Lord St. Leonard's Act Application 
 (22 & 23 Vict. c. 35, s. 30), the practice under which is *" the Court 
 regulated by O. lii. rr. 19 et seq. of E. S. C, 1883, en- foradvlce - 
 ables trustees and executors to apply to a judge of the 
 Chancery Division for opinion and. advice as to the 
 management of trust property, and they are also em- 
 powered to apply to the Court by summons under O. 
 lv. r. 3 (g). As to the question of trustees acting Practice, 
 under advice of counsel, see leading case, Stott v. Milne, 
 p. 118. 
 
 14 In Pa. legal investments are bonds and mortgages and the 
 public debts of the United States, State of Penna. and City of 
 Phila. at such prices as the court thinks best. 
 
 15 Trustees are by law joint tenants, and every one is equally 
 entitled to receive the income. Peters v. Beverly, 10 Peters, 562; 
 Taylor v. Benham, 5 How. 233; Brice v. Stokes, notes 2 Lead. 
 Cases in Equity. 
 
190 LIABILITY OF CONSTRUCTIVE TRUSTEES. 
 
 [■^■107] if Liability of Constructive Trustees. 
 
 BARNES v, ADDY. 
 (L. E. 9 Ch. 244.) 
 
 A stranger to a trust acting as agent of the 
 trustees in transactions within their legal pow- 
 ers is not to be held liable as a constructive trus- 
 tee; unless he receives and becomes chargeable 
 with part of the trust property, or unless he acts 
 with knowledge of a dishonest and fraudulent 
 design on the part of the trustees) 
 
 Principle. 
 
 - Addy was sole surviving trustee of a considerable 
 Summary of J a . 
 
 facts. fund under a will which gave him a power oi ap- 
 
 pointing new trustees, but no power of reducing 
 their number. The portion of the estate which was 
 the subject of litigation in the present action con- 
 sisted of a sum invested in consols. One moiety of 
 the fund, spoken of as the " Addy " share, was held 
 for the benefit of Mrs. Addy and her children. The 
 other moiety, spoken of as the " Barnes Share," for 
 the benefit of Mrs. Barnes and her children. 
 
 Family disputes having arisen, Addy desired to 
 appoint Barnes in his place as sole trustee of the 
 Barnes fund. His solicitor advised him not to do 
 so, and pointed out the risk of the misapplication of 
 the trust fund when it was put in the power of a 
 sole trustee ; but Addy persisted in his intention. 
 Addy's solicitor, on his instructions, drew up a deed 
 of appointment and indemnity, but required that 
 it should be approved by an independent solicitor 
 on behalf of Mrs. Barnes and her children. Barnes' 
 
 1 A constructive trust will arise if a person obtains from a 
 trustee the trust property without paying for it. In such a case 
 he is held to be a trustee by construction. Hill on Trustees, 172. 
 The rule is different with regard to a bond fide purchaser for 
 value. Mumma v. The Potomac Co., 8 Peters, 281. 
 
LIABILITY OF CONSTRUCTIVE TRUSTEES. 191 
 
 solicitor, acting on behalf of Mr. Barnes and her 
 children, warned her of the risk of the proposed 
 transaction, but on her replying that she fully ^un-[-^ 108] 
 derstood the matter and desired it to be carried 
 through, approved the deed on her behalf. Addy's 
 solicitor then introduced Barnes to a broker, and 
 Addy transferred the " Barnes' share " to Barnes. 
 The next day Barnes misappropriated the whole of 
 the " Barnes' share " and subsequently became 
 bankrupt. The solicitors had no knowledge of any 
 fraudulent design on the part of Barnes, and the 
 question was whether, under all the circumstances, 
 they were to be held liable. The Court of Appeal 
 decided, affirming the decision of Vice-Chancellor 
 Wickens, that they were not to be held liable. 
 
 This case is cited in Lewin on Trusts, 8th ed. p. 
 as an authority for the following proposition: "A so- 
 licitor is not liable as a constructive trustee for the con- 
 sequences of acts done by such solicitor, pursuant to 
 instructions from his clients, who are trustees, and ex- 
 ercising their legal powers, unless the solicitor either 
 receive some part of the trust property or assist with 
 knowledge in some dishonest and fraudulent design on 
 the part of his clients." The principles established by Principle 
 this very remarkable case would, however, clearly ap- extends to 
 pear to be by no means limited to solicitors, but to ex- classes of 
 tend to all other classes of persons who act as agents trustees. 
 for trustees. 
 
 Lord Selborne, in delivering judgment, pointed out 
 that it was equally important to maintain the doctrine • 
 of trusts which is established in this Court, and not to 
 strain it by unreasonable construction beyond its true 
 and proper limits. " There would be," he said, " no 
 better mode of undermining the sound doctrines of 
 equity than to make unreasonable and inequitable appli- 
 cations of them." 
 
 "In this case," said the Lord Chancellor, "we have 
 to deal with certain persons who are trustees and with 
 certain other persons who are not trustees. That is a 
 distinction to be borne in mind throughout the case. 
 Those who create a trust clothe the trustee with a legal 
 power and control over the trust property, imposing 
 on him a corresponding responsibility. That respon- 
 
192 LIABILITY OF CONSTRUCTIVE TRUSTEES. 
 
 sibility may no doubt be extended in equity to others 
 who are not properly trustees, if they are found either 
 making themselves trustees de son tort 2 or actually par- 
 ticipating in any fraudulent conduct of the trustee to 
 the injury of the cestuis que trust. 2 But on the other 
 hand, strangers are not to be made constructive trus- 
 tees merely because they act as the agents of trustees 
 in transactions within their legal powers, transactions 
 perhaps of which a Court of Equity may disapprove, 
 unless those agents receive and become chargeable with 
 some part of the trust property, or unless they assist 
 with knowledge in a dishonest and fraudulent design 
 on the part of the trustees. 4 Those are the principles, 
 [ -fa 109] as it seems to me, which we -^ must bear in mind in 
 dealing with the facts of this case. If those principles 
 were disregarded I know not how anyone could in trans- 
 actions admitting of doubt as to the view which a Court 
 of Equity might take of them, safely discharge the of- 
 fice of solicitor, of banker, or of agent of any sort to 
 trustees. 5 But on the other hand, if persons dealing hon- 
 estly as agents are at liberty to rely on the legal power 
 of the trustees, and are not to have the character of 
 trustees constructively imposed on them, then the trans- 
 actions of mankind can safely be carried through, and 
 I apprebend those who create trusts do expressly in- 
 tend, in the absence of fraud and dishonesty, to exon- 
 erate such agents of all classes from the responsibilities 
 which are expressly incumbent by reason of the fidu- 
 ciary relation upon the trustees." 
 
 The Court of Appeal then considered the facts of 
 the case before them. So far as one solicitor was con- 
 cerned, there was not the slightest trace whatever of 
 knowledge or suspicion on his part of any improper or 
 dishonest design in the transaction. To hold him lia- 
 ble on account of his preparation and approval of the 
 deed, would be not only opposed to all authority, but 
 would render it impossible for any person safely to act 
 as a solicitor for any retiring or incoming trustee un- 
 less he took upon himself the office of a Court of 
 
 2 McCoy v. Scott, 2 Eawle, 222 ; People ft Houghtaling, 7 Cal. 
 348. 
 
 a A trustee cannot acquire any right or title which is antago- 
 nistic to the cestui que trust. Ashcelot Railroad Co. -v. Elliott, 57 
 N. H. 397 ; Staats v. Bergen, 2 C. E. Green, 297. 
 
 4 Such a person becomes trustee ex malefacio. 20 P. F. Sm. 
 256 ; Hoge v. Hoge, 1 Watts, 163 ; Beegle v. Wentz, 5 P. F. Sm. 374. 
 
 5 Constructive trusts do not fall within the statute of frauds. 
 See Christ's App., 16 P. F. Sm. 237 ; Story's Eq. sec. 1198 ; Long 
 v. Perdue, 2 Norris, 217. 
 
LIABILITY OF CONSTRUCTIVE TRUSTEES. ] 93 
 
 Equity and satisfied himself that nothing in the trans- 
 action could possibly be called in question. The case 
 against the other solicitor carried the point very little 
 further. He knew that as a general rule it was not a 
 safe thing to hand over a trust fund to a single trustee, 
 he advised against it, and he prepared a deed of indem- 
 nity. To hold that a solicitor in such a case was a 
 constructive trustee would be, the Court said, an alarm- 
 ing doctrine which they would be the first to lay down, 
 it not having been laid down by any of their predeces- 
 sors. " I have long thought," said Lord Justice James, 
 " that this Court has in some cases gone to the very 
 verge of justice in making good to cestuis que trust the 
 consequences of the breaches of trust of their trustees 
 at the expense of persons perfectly honest, but who 
 have been in some more or less degree injudicious. I 
 do not think it is for the good of cestuis que trust or the 
 good of the world that those cases should be extended." 
 
 The circumstances under which a solicitor can be Breach of 
 struck off the rolls for participating in or committing a trust by 
 breach of trust have been considered in several cases, solicitor. 
 
 In In re Hall (2 Jur. N. S. 633) a solicitor had been 
 guilty not only of a breach of trust by misappropriat- 
 ing trust money, but he had also been guilty of mis- 
 representation by stating that the trust fund was in- 
 vested. Proceedings against him were instituted by 
 his co-trustee, who was also a solicitor, and it was urg- 
 ed that no order could be made except on the complaint 
 of the clients. Stuart, V.C., said that this circumstance 
 was wholly immaterial, and made an order striking him 
 off the Rolls. And see In re Chandler (22 Beav. 253). 
 
 In Goodwin v. Gosnell (2 Coll. (Ch. ) 457) a sole 
 acting trustee and executor had improperly sold certain 
 trust property,and the proceeds were applied principally 
 to the use of the solicitor. The Court came to -^the [ •jf 110] 
 conclusion,on the evidence before it,that the trustee was 
 a mere helpless and ignorant instrument in the hands of 
 the solicitor, without any judgment or with scarcely 
 more judgment or volition for any effectual or substan- 
 tial or useful purpose than the pen with which he was 
 made to sign his name and ordered the solicitor to 
 shew cause why his name should not be struck off the 
 Rolls. The result of the case, however, was that the 
 Court, taking into consideration the youth of the soli- 
 citor and other circumstances, abstained from proceed- 
 ing further in the matter on his undertaking to pay all 
 costs, charges, and expenses. The eloquent judgment 
 of Lord Justice (then Vice-Chancellor) Knight Bruce 
 
 13 MODERN EQUITY. 
 
194 
 
 LIABILITY OF CONSTRUCTIVE TRUSTEES. 
 
 Solicitors 
 when not 
 proper 
 parties to 
 action. 
 
 [*1H] 
 
 in this case, with regard to the responsibilities and du- 
 ties of the legal profession, is worthy - of most careful 
 perusal. 
 
 In Burstall v. Bey f us (26 Ch. Div. 35) an action was 
 brought against certain persons and a firm of solicitors 
 alleging a case of fraud against all the defendants in 
 obtaining a charge on certain property which the 
 plaintiff took under his father's will, the effect of the 
 charge being, under the provisions of the will, to occa- 
 sion a forfeiture. 
 
 The charges against the solicitor were: — 
 
 1. That they acted as solicitors for all parties; 
 
 2. That they prepared a charge which the other de- 
 fendants were said to have advised the plaintiff to exe- 
 cute; 
 
 3. That the charge, although read over to the plain- 
 tiff, was never explained to him, and that he executed 
 it without understanding its effect; 
 
 4. That they in common with the other defendants 
 well knew that the effect of the charge would be to oc- 
 casion a forfeiture, and that it was procured for the 
 purpose of being oppressively used against the plain- 
 tiff to induce him to meet certain promissory notes. 
 
 The Court of Appeal decided (affirming the decision 
 of the Court below) that the statement of claim dis- 
 closed no reasonable cause of • action against the solici- 
 tors,and the Lord Chancellor expressed a doubt whether, 
 even if it had gone on to allege that the plaintiff had 
 suffered some loss or damage, that allegation stand- 
 ing alone would have been adequate to shew a cause of 
 action. 
 
 "With regard to the contention which had been raised 
 that the solicitors could at all events be made parties 
 for the purpose of discovery, the Lord Chancellor ad- 
 hered to his previous observations in Barnes v. Addy 
 (ubi supra) and applied them to the case before him as 
 follows: — "It is obvious that if solicitors cannot be 
 made parties to pay costs, a fortiori they cannot be 
 made parties for the mere purpose of making discovery. 
 The only question is whether the action on the face of 
 the pleadings is frivolous and vexatious. I have no 
 hesitation in saying that an action against solicitors 
 without shewing any case except by alleging that they 
 acted as solicitors in a transaction in which the plaintiff 
 seeks relief against other parties, is vexatious, and it 
 was rightly dismissed against them." 
 
 Cotton, L.J., added: "I agree with the Lord Chan- 
 cellor that to make -^ a solicitor a party to an action 
 
CONTROL OF TRUSTEES' DISCRETION. 195 
 
 without seeking any relief against him except to make 
 him pay costs or give discovery, is vexatious; if a soli- 
 citor is guilty of negligence he can be attacked in an 
 action for negligence. If guilty of worse conduct, 
 there are other steps that can be taken against him. 
 But I will not encourage parties to bring a solicitor be- 
 fore the Court in an action such as the present." 
 
 In Stainar v. Evans, Evans v. Stainar (34 Ch. D. 
 470), Barnes v. Addy was commented on and distin- 
 guished. There the trustee's solicitors had received 
 capital money as part of the trust estate. An order for 
 payment had been made against the trustee on state- 
 ments implying that he was solvent, and on his making 
 default in payment the Court made an order that the 
 solicitors should pay into Court the capital moneys 
 which had come to their hands, with interest at 4 per 
 cent. 
 
 Control of Trustees' Discretion 
 
 MINORS v. BATTISON. 
 (1APP. Cas. 428.) 
 
 Where judgment has been given in an action Principle. 
 for the administration of a trust, its general 
 effect is to prevent the trustees from acting in 
 the administration without the sanction of the 
 Court? 
 
 A testator, who died in 1863, left all his property, Summary of 
 which included the proprietorship of a newspaper, facts - 
 to trustees upon trust to carry on the newspaper 
 during the life of his wife, and among other trusts 
 after her decease, "at the sole discretion of my 
 trustees," to sell all his property, including the 
 newspaper, and divide the pro ceeds a mong h is chil- 
 
 i After a decree a trustee cannot exercise even a special power 
 -without the sanction ot the Court. But where a power is given 
 to trustees to do or not a particular act at their discretion, the 
 court has no jurisdiction to command or prohibit the trustees^ 
 from exercising that discretion provided their conduct be bond 
 fide. Green v. McBeth, 12 Kich. Eq. 254 ; Eldridge v. Head, 106 
 Mass. 582. 
 
196 CONTROL OF TRUSTEES' DISCRETION. 
 
 dren. In 1866 a suit for administration was com- 
 menced, in which a decree was made, followed by 
 an order in 1870, after the death of the widow, de- 
 claring that it was for the benefit of all parties that 
 the newspaper should be carried on. The House of 
 Lords, in giving judgment that there was an abse- 
 il -^ 112] lute trust for sale 2 ■£ after the death of the widow, 
 laid down the principle, though it was not necessary 
 for the purposes of the judgment, that the effect of 
 what had been done in the administration action 
 was to put an end to the discretionary power of the 
 trustees. 3 
 
 The point decided in this case, as stated in Bubb v. 
 Padwick (13 Ch. D. 517), was that the "mere acci- 
 dental delay in converting the newspaper property was 
 not to postpone the vesting of the shares, although the 
 gift over was if the children died without having re- 
 ceived their shares," but it is also always cited as the 
 leading authority with regard to the general effect of an 
 administration judgment on the powers and authorities 
 of trustees. 
 
 "In my opinion," said Lord Chelmsford, "the true 
 meaning of the clause is that it imposes upon the trus- 
 tees an absolute trust to sell, but gives them a discre- 
 tion as to the manner in which, and to a certain extent 
 the time at which, the different properties may be sold 
 to the best advantage." * "I cannot help observing," 
 he continued, "that even assuming that the trustees 
 had an absolute discretion, this would not prevent the 
 appellant from being entitled to her share of the testa- 
 tor's residuary estate, because during the life of Wil- 
 liam Hobsdn (her father and the testator's son) the 
 trustees had retired from the trust and placed them- 
 selves in the hands of the Court by the bill filed by the 
 trustees for administration of the trusts and the order 
 founded tbereon, after which the trustees could not ex- 
 
 2 A power to trustees to sell will not authorize a partition. 
 Woodhull v. Longstreet, 3 Harr. 419. 
 
 s Where a suit has been instituted for the administration of 
 the trust and a deeree has been made that attracts the jurisdic- 
 tion of the court, the trustee cannot afterwards exercise the 
 power without the concurrent sanction of the court. Lewin on 
 Trusts, 616, and Carson v. Id., 1 Wins. (N. C.) 24. 
 
 4 Gould v. Choppel, 42 Md. 466, Chesley v. Id., 49 Mo. 560. 
 
CONTROL OF TRUSTEES' DISCRETION. 197 
 
 ercise any discretion with which they were invested 
 without the sanction of the Court." 
 
 In Lewin on Trusts, chapter xxiii., where tbe author Effect of 
 discusses the general powers of trustees, he thus sums administra- 
 up the effect of the cases on the subject (8th ed. pp. tio " J ud 'S- 
 597 and 617):—" The powers assigned in the preced- meQt 
 ing pages to trustees must be taken subject to the 
 qualification, that, if an action has been instituted for 
 the execution of the trust, and a decree made, the 
 powers of the trustees are henceforth so far paralysed 
 that the authority of the Court must sanction every 
 subsequent proceeding. Thus the trustees cannot com- 
 mence or defend any action or suit, or interfere in any 
 other legal proceeding, without first consulting the 
 Court as to the propriety of so doing : a trustee for 
 sale cannot sell : the committee of a lunatic cannot 
 make repairs : an executor cannot pay debts, or deal 
 with the assets for the purpose of investments." 
 
 In Bethell v. Abraham (L. E. 17 Eq. 24) a decree for 
 the administration of the trusts of Lord Westbury's 
 will had been obtained. The trustees, who had power 
 to invest certain moneys belonging to the estate at their 
 discretion, and who had also power to continue or 
 change securities from time to time as to the majority 
 of them should seem meet, applied to the Court for lib- 
 erty to sell certain securities and invest the proceeds in 
 American funds and railway stocks. 5 Infants ^-were [-^-113] 
 interested in the estate, and the Court declined to sanc- 
 tion the proposed investment. In this case Jessel, 
 MR., laid down the principle that as long as an estate 
 is subject to administration by the Court the Court does 
 not allow a purchase or a mortgage or any other invest- 
 ment to be made without being personally satisfied of 
 its safety. 6 
 
 In In re Gadd, Eastwoodv. Clark (23 Ch. Div. 134), Appoint- 
 a question arose as to the exercise of a power of ap- mentofnew 
 pointment of new trustees after judgment had been trustees - 
 given for administration of the trusts of the will. The 
 Court of Appeal decided that the effect of the judgment 
 for administration was not to take away from the trus- 
 tee the power of appointing new trustees, but to render 
 the appointment subject to the supervision of the Court; 
 that if he nominated a fit person, such person must be 
 
 5 In the United States if the trustees are given a discretion as 
 to investments they have no right to invest in personal securi- 
 ties. Clarke v. Garfield, 8 Allen, 427; Willes' App , 22 Pa. St. 330. 
 
 6 Twaddell's Appeal, 5 Barr. 15 ; Perry on Trusts, Sec. 458, 
 3rd. ed. 
 
198 CONTROL OF TRUSTEES' DISCRETION. 
 
 appointed, and that the Court had no discretionary 
 power to say that another person was better than the 
 nominee of the person who had the power. If the 
 trustee nominated an improper person the Court would 
 call upon him to make a fresh nomination. If the 
 trustee repeatedly nominated improper persons, that 
 would amount to a refusal to exercise the power, and 
 the Court could then appoint,' but the power would not 
 be destroyed by a single nomination of which the Court 
 did not approve. In this case the Court of Appeal 
 pointed out that the form of decree in Middleton v. 
 Reay (7 Ha. 106), which directed the Master to ap- 
 prove of trustees without saving the authority of the 
 donee of the power, was not right, and that the modern 
 form is framed so as to preserve the trustees' power. 7 
 
 In In re Norris, Allen v. Norris (27 Ch. D. 333), 
 there was an administration action, and the continuing 
 trustee, who was the solicitor s to the trustees, appoint- 
 ed his son, who was also his partner, to be a new trus- 
 tee. The Court held that though the appointment 
 would have been valid if made outside the Court, yet 
 that as there was an administration action, it must 
 withhold its sanction to the appointment in question. 
 
 In Inre Hall (51 L. J. N. S. 901) an action had been 
 commenced against a sole trustee who was also tenant 
 for life, asking for a general execution of the trusts of 
 a will, but the Court, under the power conferred by 
 Order lv. r. 10, only ordered certain inquiries, among 
 which was one whether new trustees had been appoint- 
 ed, and whether any and what steps ought to be taken 
 for their appointment. Pending this inquiry the de- 
 fendant appointed a new trustee. The Court said that 
 the effect of the order made was in no way to interfere 
 with the exercise of the trustees' power except so far 
 as its exercise must necessarily clash with the particular 
 inquiries ordered. 9 The inquiry, however, having been 
 ordered, it was the defendant's duty not to fill up the 
 vacancies without an application for the approval of 
 the Court. All that the person possessing the power 
 had to do in such a case was to take care that he ap- 
 pointed such a person as the Court would approve. 
 
 7 If a trustee wishes to be relieved of his duties he must as a 
 general rule apply to a Court of Equity to be discharged. Shep- 
 pard v. McEvers, 4 Johns. Ch. 136. 
 
 8 One of several trustees may act as an agent for the others. 
 See Lewis r. Eeid, 11 Ind. 239; Leggett v. Hunter, 19 N. Y. 445. 
 
 9 As the position of trustee is one of personal confidence he 
 cannot delegate his office even to a co-trustee. Hawley v. James, 
 5 Paige (Ch.) 487, Pearson v. Jamison, 1 McLean, C.C., 197. 
 
UNCONTROLLABLE DISCRETION. 199 
 
 The power of nomination, is left in him, but the Court 
 has a power of control to see that a fit and proper per- 
 son is appointed. The proper course would have been Practice. 
 to have made an application in Chambers, ^- giving the f *fc 114] 
 name of the person nominated, and if it was found that 
 there was no objection to his appointment, it would 
 have been approved. 
 
 A further principle which may be collected from the 
 cases is that where there is a pending action, even if 
 no judgment for administration has been made, though 
 the plaintiff may abandon the action at any moment, 
 and though the trustees must not assume that a judg- 
 ment will be made, but must proceed in all necessary 
 matters in the due execution of the trust, it is never- 
 theless imprudent for the trustees to act under such 
 circumstances without first consulting the Court. Lewin 
 on Trusts, 8th ed. 617, 618. 
 
 Uncontrollable Discretion. 
 
 G-ISBOBNE v. G-ISBORNE. 
 (2 App. Cas. 300.) 
 
 Where an " absolute " or " uncontrollable " Principle. 
 discretion or authority is invested in trustees 
 the Court villi not interfere with its exercise in 
 the absence of bad faith} 
 
 Two funds, both under the management of the Summary of 
 Court of Chancery, were applicable to the mainte- 
 nance of a lady who, since her husband's death, had 
 been judicially declared a lunatic. The lady was 
 absolutely entitled to one fund under her marriage 
 settlement. The other fund had been left by her 
 husband's will to his trustees upon trust, "in their 
 discretion and of their uncontrollable authority," 
 to apply the income thereof for her maintenance. 
 The fund itself, together with so much of the income 
 
 1 If the trustees are given such a power, the Court has no 
 jurisdiction to command or prohibit them to do, or to forbid 
 them to do a particular act where .they have an uncontrollable 
 discretion so long as they act bond fide. Green v. McBeth, 12 
 Eich. Eq. 214; Eldridge v. Head, 106 Mass. 582. 
 
200 UNCONTROLLABLE DISCRETION. 
 
 as was not applied for her benefit, passed over to 
 other persons on her decease. The question was on 
 which fund the maintenance of the lunatic should 
 be charged. Held, by the House of Lords, that the 
 trustees were entitled to exercise an absolute dis- 
 cretion as to paying and applying the whole or any 
 part of the income of the testator's estate for the 
 benefit of the widow. 2 
 
 [ -^- 115] -fa This case was well described in the argument on a 
 case to which we shall presently refer (In re Lofthouse, 
 29 Ch. Div. 921), as the turning point in the current of 
 authority with regard to the control which the Court 
 will exercise over trustees in whom discretionary powers 
 have been reposed. It will be observed that the lady's 
 interest in the fund under her husband's will was, as 
 Lord Cairns expressed in his judgment, " evanescent," 
 that consequently it was obviously for her interest that 
 the cost of her maintenance should be charged upon 
 Usual that fund. The usual practice of the Court in such a 
 
 practice as to case would have been to save the money which was her 
 maintenance own property, and to maintain her out of the other 
 fund (see In re Weaver 21 Ch. Div. 615, infra, p. 11 . 3 
 Lord Cairns in delivering judgment said that the pre- 
 vious decisions in cases where trustees had submitted 
 questions to the Court, or parties interested had raised 
 them, as to whether trusts had actually arisen and 
 ought to be acted upon, did not at all touch the present 
 case, where the trustees were made absolute masters of 
 the question, and armed with a complete and uncon- 
 trolled discretion. He then referred to the rule (pre- 
 viously mentioned) which the Court of Chancery would 
 have adopted if it had two funds under its control, and 
 proceeded as follows : — " I answer that may be the 
 case, that may be the principle (and I make no objec- 
 tion to the principle, I highly approve of it), by which 
 the Court of Chancery, where it has to exercise its dis- 
 
 * Lewin says (Text Book Series p. 772). "If the trustees by 
 name have a power of revoking the limitations, and shifting the 
 property into a different channel, this discretion is meant to be 
 personal, and not to be annexed to the estate or office." Hazel 
 v. Hogan, 47, Mo., 277. If a trustee has an absolute discretion 
 to apply trust funds as he thinks best and dies without exercis- 
 ing that power inter vivos he may by his will direct how they 
 shall be applied. Library Co. of Phila. v. Williams, 73 Pa. St. 
 249. 
 
 3 Lewin on Trusts (8th ed.) 614. 
 
UNCONTROLLABLE DISCRETION. 201 
 
 cretion, deems it expedient to proceed in the exercise 
 of that discretion. But am I entitled, in dealing with 
 a will such as is now before your Lordships, to set up 
 against the discretion of the trustees, which is pro- 
 nounced by this will to be uncontrolled and uncon- 
 trollable, the rule which the Court of Chancery adopts 
 for the exercise of its own discretion in a similar or in 
 an analogous case ? To do so here would simply be to 
 reverse the words used by the testator, and to say that 
 the discretion which is given to the trustees by this 
 will, and which is stated to be uncontrollable, shall be 
 controlled and be subjected to that rigid and unbend- 
 ing rule upon which the Court of Chancery acts (for 
 reasons of which I entirely approve), upon those occa- 
 sions when it has to perform the functions which, in 
 this instance, the trustees, and not the Court have to 
 perform." 
 
 In Tabor v. Brooks (10 Ch. D. 273) trustees had 
 power to apply the income of a settled fund for the 
 benefit of the husband, wife, and children, as they " in 
 their uncontrolled and irresponsible discretion " should 
 think fit. In this case the Court reviewed the previous 
 decisions of Costabadie v. Costabadie (6 Ha. 410) and 
 In re Beloved Wilkes's Charity (3 Mac. &G. 440, which 
 established the general rule that the Court will not in- 
 terfere with the discretion of trustees fairly and hon- 
 estly exercised ; Davey v. Ward (7 Ch. D. 754), where 
 the Court had controlled the trustees, being of opinion 
 that they were exercising a discretionary power in an 
 arbitrary and unreasonable manner (see also In re 
 Roper's Trusts, 11 Ch. D. 272) ; and the leading case 
 Gisborne v. Oisborne (ubi supra), and declined to con- 
 trol the trustees, though it was of opinion that they 
 were exercising their discretion -^- injudiciously, there [ -^- 116] 
 being no proof whatever of mala fides on their part. 
 
 In the case of In re Weaver (21 Ch. Div. 615) a tes- Limited 
 tator had left property to trustees upon trust to convert discretion of 
 and invest it, and then pay and apply the income of half trustees - 
 of it " in such way, at such times, and in such manner as 
 they at their authority and discretion should think fit," 
 towards the maintenance of a lunatic during her life, 
 with power to invest any surplus not required for the 
 purpose as capital. The question which came before 
 the Court of Appeal on a petition presented by the 
 committee of the lunatic, was whether the allowance for 
 the future maintenance of the lunatic should be paid 
 primarily out of the life interest of the lunatic, or 
 whether it should come out of her absolute property. 
 
202 UNCONTROLLABLE DISCRETION. 
 
 It was urged by the petitioners that there was nothing 
 in the present case to take it out of the ordinary rule, 
 which had been established as most beneficial to the 
 lunatic, that the life income should be first applied. 
 The trustees, on the other hand, submitted that the 
 matter was left to their discretion. The Court distin- 
 guished the leading case (Gisborne v. Gisbdrne) on the 
 ground that in that case there was power to apply the 
 whole or such portion of the income as the trustees 
 might think fit, while in the present case, on the con- 
 trary, the trustees had only a discretion as to the time 
 and manner of the application. " In this case," said 
 Jessel, M.R., " there is an absolute trust to apply 
 the income in the lunatic's maintenance, and there is 
 no discretion as to what part the trustees should apply. 
 That being so, the rule is applicable that the lunatic's 
 property must be applied as appears to be most for her 
 benefit. It is clear that it is best for her that her main- 
 tenance should be provided out of her life interest, for 
 if she should recover she will have the benefit of what 
 belongs to her absolutely." 
 
 In Tempest v. Lord Camoys (21 Ch. Div. 571), a tes- 
 tator had given his trustees a power to sell his real es- 
 tate, exercisable at the absolute discretion, * with a dec- 
 laration that the proceeds should be invested at the like 
 discretion in the purchase of other real estate, and he 
 also gave them power at their absolute discretion to 
 raise any money by mortgage for the purpose of effect- 
 ing any purchase of real estate. A suit had been com- 
 menced for the execution of the trusts of the will, and 
 a sum of money (the proceeds of the sale of real estate) 
 was paid into Court. Some of the family desired to 
 purchase a certain mansion and lands, and it was pro- 
 posed to apply part of the fund in Court for the pur- 
 pose, and to raise the remainder by a mortgage of the 
 purchased estate. One of the trustees refused to con- 
 cur in the scheme. The Court declined to control the 
 discretion of the dissentient trustee in refusing to make 
 the purchase or in refusing to exercise the power of 
 raising money by mortgage. Jessel, M.K, in deliver- 
 ing judgment, said : "It is very important that the law 
 of the Court on this subject should be understood. It 
 is settled law that when a testator has given a pure dis- 
 cretion to trustees as to the exercise of a power the 
 Court does not enforce the exercise of the power against 
 
 * A trustee is bound by bis office to sell the estate under every 
 possible advantage to the cestui que trust. Gould v. Chappel, 42 
 Md. 466: Cheslev *. Id., 49 Mo. 560. 
 
UNCONTROLLABLE DISCRETION. 203 
 
 the wish of the trustees, but -fa it does prevent them [ + 117] 
 from exercising it improperly. The Court says that the 
 power, if exercised at all, is to be properly exercised. 
 This may be illustrated by the cases of persons having 
 a power of appointing new trustees. Even after a de- 
 cree in a suit for administering the trusts has been 
 made, they may still exercise the power, but the Court 
 will see that they do not appoint improper persons. 
 But in all cases where there is a trust or duty coupled 
 with the power, the Court will then compel the trustee 
 to carry it out in a proper manner and within a reason- 
 able time." 
 
 In In re Blake, Jones v. Blake (29 Ch. Div. 913, post, 
 p. 319), real estate had been devised to trustees with a 
 discretionary power to postpone the sale, and the Court 
 of Appeal declined to interfere with their discretion. 
 
 In In re Lofthouse, an infant (29 Ch. Div. 921), 
 trustees had a power to apply " all or any part of the 
 income " to which an infant was contingently entitled, 
 for her maintenance and education. 5 The Court of Ap- 
 peal expressed a doubt whether the discretion of the 
 trustees as to the quantum to be allowed could be con- 
 trolled, so long as it was exercised bona fide, and said 
 that at all events the present application (by summons 
 in the matter of the infant) was irregular, and that the 
 Court had no jurisdiction unless the matter were brought 
 before them under a writ or an originating summons. 
 
 In the recent case of In re Brown, Brown v. Brown 
 (29 Ch. D. 889), the trustees, who were also executors, 
 had power to invest moneys coming to their hands or 
 under their controL in such mode or modes of invest- 
 ment as they in their own uncontrolled discretion should 
 think fit. 6 Before the commencement of an action for 
 administration, the trustees had invested a considerable 
 portion of the estate in the purchase of Turkish bonds, 
 City Bank shares, on which there was a further liabil- 
 ity, bonds of a colonial railway company, and Portu- 
 guese bonds. The Court held that the securities in 
 question ought to be converted, though the trustees had 
 power to postpone the conversion, but that the conver- 
 sion ought not to be indefinitely postponed; as how- 
 ever the trustees had acted bond fide in the exercise of 
 the very wide powers given them by the will, and as 
 
 5 In the matter of Bostwick, 4 Johns. Ch. 101. 
 
 6 It is not a sound exercise of his discretion if a trustee invests 
 the trust funds in personal securities. Barney v. Saunders, 16 
 Howard, 545; Moore v. Hamilton, 4 Florida, 112; Harding v. 
 Lamed, 4 Allen, 426 ; Nyce's Estate, 5 W. & S. 256. 
 
204 trustees' costs. 
 
 there had been no loss to the trust estate, they were al- 
 lowed the sums which they had laid out. 7 
 
 In In re Courtier, Coles v. Courtier (34 Ch. Div. 136),, 
 the Court of Appeal, after referring to the cases of 
 Nickisson v. Cockill (3 De G. J. & S. 622), and Tempest 
 v. Lord Camoys (21 Ch. D. 576, n.), stated that it was 
 clearly settled law that where trustees have a power as 
 distinguished from a trust, although the Court will 
 prevent them from executing the power unreasonably, 
 it will not oblige them to exercise it, and, being of 
 opinion that in the case before them the power was 
 purely discretionary, declined to interfere. See also 
 Marquis Camden v. Murray (16 Ch. D. 161), where the 
 Court refused to control the trustees' discretion. 
 
 [ * 118] * Trustees' Costs. 
 
 STOTT v. MILNE. 
 • (25 Ch. Div. 710.) 
 
 Principle. The costs and expenses of trustees properly 
 
 incurred in the execution of a trust are a first 
 charge on all the trust property, both income and 
 corpus. 1 The fact that counsel have advised 
 trustees to bring an action is not conclusive that 
 the action was properly brought, but the Court 
 will attach considerable importance to it. 2 
 
 Summarv of Stott, who was beneficially entitled for life to a 
 facts. certain freehold estate of which Milne was trustee, 
 
 brought an action against Milne for an account of 
 the rents, and the question arose whether the costs 
 of two actions which had been brought by Milne 
 without Stott's authority, but under the advice of 
 
 7 In most of the United States the subject of investment of 
 trust fuDds is regulated by statute. See Perry on Trusts, sec. 
 459. 
 
 1 Lewin on Trusts (Text Book Series), p. 804. The expenses of 
 a trustee incurred in the execution of his office are treated by the 
 court as a first lien upon the estate. 
 
 2 A trustee is justified in employing a solicitor for the better 
 conduct of the trust. Brady v. Dilley, 27 Md. 570 ; McElhen- 
 ny's App., 46 Pa. St. 347. 
 
trustees' costs. 205 
 
 counsel, for the protection of the estate, ought to 
 be allowed, and if so, whether Milne was entitled to 
 retain them out of the income of the estate. The 
 Court of Appeal, while holding that the actions were 
 not necessarily proper because advised by counsel, 
 decided that as they were brought bond iide and 
 were beneficial to the estate, the trustees were en- 
 titled not only to a charge upon the corpus, but also 
 to retain the income until provision could be made 
 for raising the costs out of the estate. 3 
 
 In this case the Vice- Chancellor of the Lancaster 
 Palatine Court, before whom the case originally came, 
 decided that as the actions were brought under the ad- 
 vice of counsel the costs must be raised and paid out of 
 the corpus of the estate, but that as they were brought 
 without the authority of Stott the costs were not charge- 
 able against the income, and he accordingly ordered 
 the trustees to pay the plaintiff his costs of the present 
 action up to the hearing. There were then cross appeals, 
 ■jf one by the plaintiff with regard to the costs of the r ,jl \\q~\ 
 former actions, and the other by the trustees with re- 
 gard to the costs of the present action. The Court of 
 Appeal varied the decision of the Vice-Chancellor in 
 two points. The reason given in the decree, viz., that Advice of 
 the actions were commenced under the advice of coun- counsel, 
 sel, was not a sufficient reason and ought to be varied. 
 
 "I cannot say," said Lord Selborne, "that because 
 an action is advised by counsel it is always and neces- 
 sarily one which trustees may properly bring. The 
 advice of counsel is not an absolute indemnity to trus- 
 tees in bringing an action, though it may go a long way 
 towards it." 
 
 The second point decided in the trustee's favour was 
 that he was justified in retaining the costs out of the in- 
 come, and that consequently he ought to be allowed his 
 costs of the action which had been brought against him. 
 The property, the Court said, was peculiarly circum- 
 stanced, as it was available for building purposes, and 
 anything done by tenants or neighbours which would 
 give any other persons rights over it, might cause a 
 material depreciation in its value. 
 
 3 If the legal proceedings were due to the trustee's own negli- 
 gence he will not be allowed his costs. Kentu. Hutchins, 50 N. 
 H. 92. 
 
206 
 
 trustees' costs. 
 
 Trustee's 
 right to 
 indemnity. 
 
 [*120] 
 
 The trustees had, therefore, an anxious duty to per- 
 form, and it had to be borne in mind that the plaintiff 
 after giving the trustee an indemnity had changed his 
 mind and given him notice that he would hold him 
 liable. Under these circumstances the Court would re- 
 quire to be clearly satisfied that the actions were im- 
 proper, to induce it to refuse costs out of the estate, and 
 accordingly they not only allowed the trustee his costs 
 out of the corpus of the estate, but also recognised his 
 right of retainer as against the income, and gave him 
 his costs of the present action. 4 
 
 "The right of trustees," said Lord Selborne, "to in- 
 demnity against all costs and expenses properly in- 
 curred by them in the execution of the trust is a first 
 charge on all the trust property, both income and 
 corpus. The trustees, therefore, had a right to retain 
 the costs out of the income until provision could be 
 made for raising them out of the corpus." 5 
 
 The principle that a trustee is entitled to indemnity 
 out of the trust estate is well illustrated by the cele- 
 brated case of Bennett v. Wyndham (4 D. F. & J. 259). 
 There a trustee, in the due execution of his trust, di- 
 rected the bailiff employed ob the settled estate to have 
 certain trees felled, timber being wanted for roofing a 
 barn on the estate. The bailiff ordered the woodcutters 
 usually employed on the estate to fell the trees. In 
 doing so they allowed a bough to fall on a passer by, 
 who brought an action against the trustee and recovered 
 heavy damages. 
 
 The Court of Appeal held, reversing the decision of the 
 Court below, that the trustee was entitled to indemnity 
 out of the trust estate. Lord Justice Knight Bruce, in 
 delivering judgment, said, "the trustee in this case ap- 
 pears to have meant well, to have acted with due dili- 
 gence, and to have employed a proper agent to do an 
 act, the directing which to be done was within the due 
 discharge of his duty. The agent makes a mistake the 
 consequences of which subject the trustee to legal 
 ■fa liability to a third party. I am of opinion that this 
 liability ought as between the trustee and the estate to 
 be borne by the estate." 6 
 
 4 Downing v. Marshall, 37 N. Y: 380. 
 
 5 Where trustees have been wrongfully appointed but acted 
 bond fide and believed themselves to have been duly appointed 
 they were allowed cost, charges and expenses notwithstanding 
 the defect of the title; the same is also true if the trust is void if 
 the trustees be without blame. Re Wilson, 4 Barr. 430; Hawley 
 v. James, 16 Wendell, 61. 
 
 6 Lewin says (p. 797 Text Book Series) "a trustee is allowed 
 
trustees' costs. 207 
 
 In Walters v. Woodbridge (7 Ch. Div. 504) the ques- 
 tion -was whether a trustee was to be allowed his costs 
 of an action which he had successfully defended in 
 which charges of personal fraud had been made against 
 him. The Court of Appeal decided that as the defence 
 of the action by the trustee was for the benefit of the 
 trust estate, he must be allowed his costs, though an in- 
 cidental object of the defence of the action was the de- 
 fence of his own character. They considered that the 
 case fell within the principle that where an action is 
 brought against a trustee in respect of the trust estate, 
 whether it be an action of ejectment, trespass, or of any 
 other description, and is defended by the trustee not for 
 his own benefit but for the benefit of the trust estate, 
 he is entitled to indemnity. 
 
 The Court, said James, L. J., is very strict in dealing 
 with trustees, and it is the duty of the Court as far as 
 it can to see that they are indemnified against all ex- 
 penses which they have honestly incurred in the due 
 administration of the trust. 7 The false charge was a 
 charge against the trustee in respect of acts done by 
 him in the due administration of the trusts and his de- 
 fence was beneficial to the trust estate, for it has been 
 decided that the compromise was an advantageous one. 
 
 Trustees, being a joint body, are not entitled, as a Trustees 
 general rule, to appear separately from each other or severing in 
 from their cestuis que trustent (Farrv. Sheriff e, 4 Hare, their 
 528), or, as it is technically termed, to "sever in their defence - 
 defence," and only one set of costs will be allowed. 
 Where, however, there are special circumstances, e.g., Exceptions 
 where one of the trustees is charged with a breach of to the rule. 
 trust, or even in some cases when they reside at a dis- 
 tance from each other, severance is allowed. Course v. 
 Humphrey (26 Beav-. 402); Prince v. Hine (27 Beav. 
 345); Ati.-Gen. v. Wyville (28 Beav. 464); Walters v. 
 Woodbridge (7 Ch. Div. 504), where, there being charges 
 of fraud, the severance was considered justifiable; and 
 see Smith v. Dale (18 Ch. D. 516); In re Love, Hill v. 
 Spurgeon (29 Ch. Div. 548), where the action was by 
 one trustee against the other, and both trustees were 
 held entitled to costs between solicitor and client; and 
 see Daniell, Chancery Practice, p. 506, where the au- 
 thorities are collected; Lewin on Trusts, 8th ed. p. 260, 
 
 nothing for his trouble, but is allowed everything for his expenses 
 out of pocket." 
 
 7 Perkins v. Kershaw, 1 Hill's Eq. 350; Morton v. Barrett, 22 
 Me. 257. 
 
208 
 
 trustees' costs. 
 
 where it is suggested that the same principle must 
 govern trustees' transactions out of Court. 
 
 It was held in In re Pumfrey, deceased, The Worces- 
 ter City & Banking Co. v. Blick (22 Ch. D. 255, that 
 where a trustee had a right to be indemnified out of the 
 trust estate, there is no reason why he should wait for 
 his indemnity until the trust estate has been turned 
 again into money under the trust. His right of in- 
 demnity gives him a right of charge or lien upon the 
 trust estate, he has a right to come at any time and 
 say, "I claim to have my right of indemnity, I am now 
 called upon to pay a sum of money for which I have a 
 right of indemnity out of the trust estate, and that 
 [ -fa 121] gives me the right in. equity ^fto have a charge against 
 the estate, and to have the charge enforced by the pro- 
 cess of the Court of Equity." "It would be extremely 
 hard," the judge said, "upon trustees, who are' treated 
 with all proper severity and quite harshly ^ enough by 
 the Rules of this Court, if, when they have a right of 
 indemnity, it should be held that they are not to be 
 allowed to enforce that right of indemnity until the 
 estate happens to be turned into money under the trust 
 contained in the settlement." 8 
 Priority In Dodds v. Tuke (25 Ch. ~D. 617), where an action 
 
 was brought against trustees under a creditors' trust 
 deed, and the costs of all parties were ordered to be 
 paid, and where it appeared probable that the fund 
 would not be sufficient for the payment of all the costs 
 in full, the trustees were held entitled to a direction for 
 the payment of their costs, charges, and expenses in 
 priorty to costs of all other parties. 
 Costs out of Though a trustee is allowed nothing for his trouble, he 
 pocket. is allowed everything for his expenses out of pocket. 
 
 On this principle trustees have been held to be entitled 
 to travelling expenses properly incurred,' to costs of so- 
 licitor and counsel, costs of opposing a Bill in Parlia- 
 ment and protecting the estate. In re Earl de la Wai-r's 
 Estates (16 Ch. D. 587), and In re Lord Rivers' Estate 
 (16 Ch. D. 588, n.); McEwan v. Crombie (25 Ch. D. 
 175); Lewin on Trusts, 8th ed. p. 260. 
 R. S. C. 1883, With regard to costs, Order lxv. r. 1, R. S. C, 1883, 
 as to casts, provides that "subject to the provisions of the Acts and 
 these rules, the costs of and incident to all proceedings 
 in the Supreme Court, including the administration of 
 estates and trusts, shall be in the discretion of the Court 
 
 8 A trustee should invariably keep account of the expenses \Ex 
 parte Cassell, 5 Watts, 442 ; Green v. Winters, 1 Johns Ch. 27. 
 8 Towle v. Mack, 2 Vt. 19. 
 
DONATIO MOKTIS CAUSA. 209 
 
 or judge : Provided that nothing herein contained shall 
 deprive an executor, administrator, trustee, or mortgagee 
 who has not unreasonably instituted or carried on or 
 resisted any proceedings, of any right to costs out of a 
 particular estate or fund to which he would be entitled 
 according to the rules hitherto acted upon in the Chan- 
 cery Division." 
 
 It is pointed out in Morgan and Wurtzburg, Chan- 
 cery Acts and Orders, 6th ed. p. 540, that the saving of 
 the right of trustees and mortgagees to costs out of the 
 estate is less extensive under this rule than that in the 
 corresponding repealed rule, being restricted to the case 
 of a trustee or mortgagee " who has not unreasonably 
 instituted or carried on or resisted any proceedings," 
 but that these words appear not to have made any real 
 alteration in the law. The right of a trustee or mort- 
 gagee to hiB costs rests as before substantially upon 
 contract; for improper conduct, whether of the kind 
 specified in the rule or any other, he may be deprived of 
 them, but not otherwise. Cotterell v. Stratton (L. R. 8 
 Ch. 295); In re Chennell (8 Ch. Div. 492); Turner v. 
 Hancock (20 Ch. Div. 303); In re Watts (22 Ch. Div. 
 5); In re Sarah Knight (26 Ch. Div. 90.) 
 
 -fa Donatio moriis causd. [ -^ 122] 
 
 In re MEAD. AUSTIN v. MEAD. 
 (15 Ch. D. 651.) 
 
 A gift of a bill of exchange payable to self or principle. 
 order is valid as a donatio mortis causa though 
 unindorsed and though it does not fall due until 
 after the donors death, 1 but a gift of donor's 
 own cheque if not payable until after his death 
 is not valid as a donatio mortis causa. 2 
 
 Mead had in his possession two bills of exchange 
 
 1 Brown v. Id., 18 Conn. 410 ; Harris?). Clark, 2 Barb. 56 ; Cald- 
 well v. Renfrew, 33 Vt. 213 ; Westerld v. DeWitt, 36 N. Y, 340 ; 
 Waring r. Edmonds, 11 Md. 424; Turpin v. Thompson, 2 Met- 
 calfe (Ky.), 420, where promissory notes of third persons whether 
 endorsed or not constitutes a good donatio moriis causd also the 
 cheque of a third person may be the subject to such a gift, Gibson 
 v Hibbard, 13 Mich. 214, also a certificate of deposit, Brooks o. 
 Id., 12 S. C. 422. 
 
 2 This is so because there must in order to constitute a good 
 
 14 MODKEN EQUITY. 
 
210 DONATIO MORTIS CAUSA. 
 
 Summary of payable to himself or order, and a banker's deposit 
 facts. no t e f or £2700, which required seven days' notice 
 
 of withdrawal. Two days before his death, Mead, 
 desiring to give £500 to his wife, signed the notice 
 of withdrawal and sent it to the bank. He then 
 signed a form of cheque which was on the back of 
 the deposit note, "Pay self or bearer £500," and 
 handed it and the two bills of exchange unindorsed 
 to his wife. 
 
 The practice of the bank on withdrawal of part of 
 a deposit was to give a fresh deposit note for the 
 balance. Held, that there had been a valid donatio 
 mortis causfi of the bills of exchange 3 but not of the 
 cheque. 4 
 
 This case forms a striking illustration of the princi- 
 ples on which the Court proceeds in cases of gifts by 
 way of donationes mortis causa. The gift of the bills, 
 though unindorsed, was held to be good on the author- 
 ity of Veal v. Veal (27 Beav. 303). With regard to 
 the cheque for £500, part of the deposit note for £2700, 
 the judgment was as follows: "The authorities stand iu 
 
 Deposit this way. A gift of a banker's deposit note, with the 
 
 note. view of giving to the donee the whole sum secured by 
 
 it, has been held to be a good donatio mortis causa. 5 
 
 Cheque. A gift of a cheque upon a banker, the cheque not being 
 
 payable during the donor's life, has been held to be not 
 a good donatio mortis causa. 6 To which of these two 
 
 r JL 123] classes of decisions does the present case belong? '^Tn 
 my judgment it belongs to the latter class. The effect 
 
 donatio be a delivery of the subject matter during the life of the 
 donor, and the cheque is not the subject of the gift, but the money 
 which it represents and if it is not payable until the death of the 
 donor there can be no delivery during the donor's life. See Bas- 
 ket v. Hassell, 107 U. S. 602. 
 
 3 The bill of exchange was accepted by the bankers before the 
 death of the donor and as the same was capable of assignment it 
 was valid. Second National Bank v. Williams, 13 Mich. 282. 
 
 4 Notes or cheques are not valid unless the money they represent 
 be reduced to possession during the life of the donor. Raymond 
 v. Sellick, 10 Conn. 480 ; Smith v. Kittredge. 21 Vt. 238 ; Copp 
 ■u. Sawyer, 6 N. H. 386. 
 
 6 Flint v. Pattee. 33 N. H. 520 ; Brooks v. Id. (supra) ; Basket 
 v. Hassell, 107 U. S. 602. 
 
 6 Harris v. Clarke, 3 N. Y. 93 ; Grover v. Grover, 24 Pick. 340; 
 Bates v. Kempton, 7 Gray, 382 ; Simmons i\ Saving Societv, 31 
 Ohio, 457. 
 
DONATIO MORTIS CAUSA. 211 
 
 of the notice of withdrawal given by the testator to the 
 bank on the 23rd of May was to set free a fund of £2700 
 upon the 30th of May, and upon that fund the testator 
 drew a cheque for £500, which was not payable till that 
 day, i.e. after his death. Looking at the whole of the 
 circumstances of the case, and at the practice of the 
 bank, which was to give a fresh deposit note for the bal- 
 ance when a part of the money was withdrawn, it does 
 not appear to me that the delivery of the note was made 
 with the intention of giving either it or the money to 
 the wife. The intention was to deliver the cheque, and 
 according to the authorities that is not a good donatio 
 mortis causa." 
 
 In Rolls v. Pearce (5 Ch. D. 730) the donor, who was Cheques, 
 then living in Italy, gave his wife two cheques on a 
 London bank. The wife indorsed the cheques, and paid 
 them into a foreign bank. The bank negotiated the 
 cheques in the ordinary course of business, but they 
 were not presented for payment at the London bank 
 until after the donor's death. 
 
 Malms, V.C., in delivering judgment, said that if Cheque 
 these cheques had been made payable to bearer, and payable to 
 had not been presented for payment at the bank on bearer - 
 which they were drawn before the donor's death, be 
 should probably have considered that he was bound to 
 hold that there was not a good gift. The cheques in 
 question, however, were payable to order, and the donor 
 knew that they could not be presented for payment 
 either on the day they were drawn, or on the subsequent 
 day, and the Vice- Chancellor, following the decision in 
 Tate v. Hilbert, reported 2 Ves. Ill, (which he consid- 
 ered to be the more accurate report), and 4 Bro. C. C. 
 291, that an actual dealing for value with a note would 
 complete the gift as a valid donatio mortis causd, held 
 that there was a good donatio mortis causd of both 
 cheques. 7 
 
 In Clement v. Cheesman (27 Ch. D. 631) the gift Cheque to 
 was of cheques which the donor had received for value ; donor's 
 they were payable to the donor's order, but he had not i^^JJ 1 " 
 indorsed them. It was held that there was a good donatio 
 mortis causd. The Court pointed out that the subject 
 matter of the gift was not the donor's own cheque, but 
 was his property, being the cheque of another man 
 taken for value. The general rule stated in Byles on 
 Bills, 12th ed. p. 176, was then cited with approval, 
 viz. " that a cheque drawn by the donor upon his own 
 banker cannot be the subject of a donatio mortis causd, 
 
 7 Starr v. Id., 9 Ohio St. 74 ; McKenziea. Downing, 25 Ga. 669. 
 
212 
 
 DONATIO MORTIS CAUSA. 
 
 Bill" of ex- 
 change. 
 
 Promissory 
 note. 
 
 [*124] 
 
 Essentials of 
 a donato 
 mortis causd. 
 
 because the death of the drawer is a revocation of the 
 banker's authority to pay 8 (see, however, Rolls v. Pearoe, 
 supra). Here, however, the Court said the donor was 
 dealing with the cheque of another man, which stands 
 entirely on the same footing as a bill of exchange or 
 promissory note, which, according , to Veal v. Veal (27 
 Beav. 303), may be a good donatio mortis causd. 9 For 
 this purpose there is no difference between the cheque 
 of another man and a bill of exchange or promissory 
 note. See further on the subject of cheques Bouts v. 
 Ellis (17 Beav. 121, 4 D. M. & J. 249); Bromley v. 
 Davenport (L. E. 6 Eq. 275); Hewitt v. Kaye (L. R. 6 
 Eq. 198); Beak v. Beak (L. R. 13 Eq. 489). 
 
 •fc The English law concerning donatio mortis causd 
 is based upon the Civil Law. 10 The following is the 
 definition given by Justinian, Inst. lib. 2, tit. 7, 1: 
 "mortis causd donatio est, quae propter mortis fit sus- 
 picionem; cum quis ita donat ut, si quid humanitus ei 
 contigisset, haberet is qui accepit; sin autem supervixis- 
 set is qui donavit, reciperet, vel si eum donationis pceni- 
 tuisset, aut prior decesserit is cui donatum sit. Hoe 
 mortis causd donationes ad exemplum legatorum redac- 
 tor sunt persomnia." (A gift mortis causd is one made 
 in expection of death; 11 when a person gives upon con- 
 dition that if any fatality happen to him, the receiver 
 shall keep the article; but that if the donor should sur- 
 vive, or if he should change his mind, or if the donee 
 should die first, then the donor shall have it back again. 
 These gifts mortis causd are in all respects put upon 
 the same footing as legacies.) In this latter respect, 
 as we shall presently see, the Roman Law differed from 
 the English Law. Abdy & Walker's Institutes of Jus 
 tinian, p. 119; Hunter's Roman Law, p. 915, 2nd ed. 
 
 There are three essentials of a donatio mortis causd. 
 
 1. The gift must be with a view to the donor's death. 12 
 
 8 The gift is not complete until the death of the donor and it 
 may be resumed by him at any time until his death which must 
 occur within a reasonable time after delivery. Dole v. Lincoln, 
 31 Me. 422; Gratton v. Appleton, 3 Story, 755. 
 
 9 The essential requisite necessary to constitute a donatio mortis 
 causd is, that it be made in peril of death. Champney v. Blan- 
 chard, 39 N. Y. Ill; Knott v. Hogan, 4 Metcalfe (Ky.), 99. 
 
 10 A donatio mortis causd depends not upon an equitable but a 
 legal title, and the claim of the donee is not essentially an equit- 
 able right. Bispham's Eq. (4th Ed.) Sec. 70; Ward v. Turner, 
 (4th American Ed.) 2 Leas. Cas. Eq. 1205 and notes. 
 
 11 See Michener v. Dale, 23 Pa. St. 59; 2 Kent's Com. 444; 
 Register v. Hensley, 70 Mo. 195. 
 
 " Gourley v. Linsenberger, 51 Pa. St. 345; Thompson v. Id., 12 
 Texas, 327. 
 
DONATIO MORTIS CAUSA. 213 
 
 2. There must be an express or implied intention that 
 the gift should only take effect on the donor's decease 
 by his existing disorder. 13 This point is well illustrated 
 by the case of Edward v. Jones (1 My. & Cr. 233), 
 where it was held that a voluntary gift of a bond in- 
 dorsed but not under seal could not take effect as a 
 donatio mortis causa because an absolute gift was in- 
 tended, and it could not take effect as a donatio inter 
 vivos because it was incomplete. 
 
 3. There must be delivery of the subject matter of 
 the donation to the donee or someone on his behalf." 
 
 With regard to the subject of gifts of cheques and Bill of 
 bills of exchange by way of donatio mortis causa the Exchange 
 following provisions of the Bills of Exchange Act, 1882, Act ' 1882 ' 
 should be noticed. Sect. 73 defines a cheque as a bill 
 of exchange drawn on a banker payable on demand, 
 and declares that, except as otherwise provided, the pro- 
 visions of that Act applicable to a bill of exchange pay- 
 able on demand shall apply to a cheque. As to nego- 
 tiation sect. 31 provides that — (1) A bill is negotiated 
 when it is transferred from one person to another in 
 such a manner as to constitute the transferee the holder 
 of the bill. (2) A bill payable to bearer is negotiated 
 by delivery. (This would seem to obviate the difficulty 
 raised in Rolls v. Pearce, supra, as to the validity of a 
 donatio mortis causa of a cheque payable to bearer). 
 (3) A bill payable to order is negotiated by the in- 
 dorsement of the holder completed by delivery. 
 
 By sect. 75 the duty and authority of a banker to pay 
 a cheque drawn on him by his customer are determined 
 by — (1) Countermand of payment; (2) Notice of the 
 customer's death. 
 
 The Customs and Inland Revenue Act, 1881 (44 & 45 Customs 
 Vict. c. 12). Sect. 38 (2), provides that the personal ™* e %% nd 
 or moveable property to be included in an account j^ ct jggi 
 shall comprise (inter alia) " any property taken -^-asa [^ 125] 
 donatio mortis causa made by any person dying on or 
 after the 1st of June, 1881." 
 
 A donatio mortis causd resembles a legacy, and dif- Compared 
 
 13 Jones v. Brown/34 N. H. 439; Virgin u. Goither, 42 111. 39; 
 Gass v. Simpson, 4 Cold. (Terra.) 288. 
 
 14 The cases are remarkable for the great strictness with which 
 they regard the necessity and certainty of delivery. There must 
 be a delivery consisting of the manual tradition of the subject of 
 the gift or something which is tantamount to or a substitute for 
 such delivery. Cose v. Dennison, 6 E. I. 88; Cutting v. Gilman, 
 41 N. H. 147; Grymes v. Hone, 49 N. Y. 17; Resch v. Senn, 28 
 Wis. 286; Blasdel v. Locke, 52 N. H. 238; Campbell's Estate, 7 
 Pa. St. 100; Carr v. Silloway, 111 Mass. 24. 
 
214 
 
 DONATIO MORTIS CAUSA. 
 
 with a 
 legacy and a 
 donatio inter 
 vivos. 
 
 Banknotes. 
 
 Bonds. 
 
 Deposit 
 notes. 
 
 Keys. 
 
 fers from a gift inter vivos " 5 in the following respects: 
 (1) It is ambulatory and incomplete during the donor's 
 life. 16 It may be revoked by resumption or by the re- 
 covery of the donor from the same illness. It cannot, 
 however, be revoked by a subsequent will, though it may 
 be satisfied by a legacy ; (2) It may be made to the 
 wife of the donor ; " (3) It is subject to legacy duty ;' 8 
 (4) It is liable for debts on deficiency of assets. 19 
 
 A donatio mortis causd, on the other hand, differs 
 from a legacy in the following respects : (1) It does 
 not require probate, as it takes effect at one sub modo 
 (i.e., conditionally), but as to duty see 44 & 45 Vict. c. 
 12, sect. 38, ante, p. 124 ; (2) It requires no assent 
 from the executor or administrator to perfect the do- 
 nee's title. See Williams on Executors, 8th ed. 776 et seq. 
 
 Gifts by way of donatio mortis causd have been held 
 valid in the following instances, in addition to those 
 which we have previously noticed/ 
 
 Banknotes. — Shanley v. Harvey (2 Ed. Rep. 125); 
 Ashton v. Dawson (Sel. Ch. Cas 14); Miller v. 'Miller 
 (3 P. Wms. 356); Hill v. Chapman (2 Bro. C. C. 6i2.) 
 
 Bonds. — Snellgrove v. Bailey ( 3 Atk. 214); Duffleld 
 v. Elwes (1 Bligh, N. S. 543 )> 
 
 Deposit note given by a bank to the donor. — Amis v. 
 Witt (33 Beav. 619); Moore v. Moore (L. E. 18 Eq. 
 474); Dunne v. Boyd (L. E. 8 Eq. 609). 21 
 
 Keys as affording the means of obtaining possession 
 of the thing given. — Ward v. Turner (2 Ves. Sen. 443); 
 Jones v. Selby (Prec. Ch. 300); Smith v. Smith (2 Stra. 
 955). 22 
 
 lD After the subjectofa gift inter vivos is delivered to thedonee, 
 the gift is consummated and cannot afterwards be revoked. Mc- 
 Carty v. Kearnon, 86 111. 291. 
 
 16 Michener v. Dale (supra). 
 
 "i.e. -without the intervention of a third person and is subject 
 to donor's debts on a deficiency of assets. Smith's Eq. Sec. 221. 
 
 18 It is different from a legacy as it does not require probate. 
 Gass v. Simpson (supra); Basket r. Hassel (supra). 
 
 19 The donee takes subject to the«claims of creditors. Mitchell 
 v. Pease, 7 Cush. 350; Bloomer v. Id., 2 Bradf. 339. 
 
 20 A bond of the donor is good and no indorsement or other 
 writing is necessary to transfer such bond. Wells v. Tucker, 3 
 Binney, 366; Waring v. Edmonds, 11 Ind. 424. 
 
 21 This applies to delivery of a bank book or certificate of de- 
 posit. Hill i>.|Stevenson, 63 Me. 364; Sheedy v. Roach, 124 Mass. 
 472; Dean i*. Dean, 43 Vt. 337; Camp's App., 36 Conn. 88; Pierce 
 v. Saving Bank, 129 Mass. 425, but the delivery of the donor's 
 cheque alone on the bank is not a valid donatio mortis causd, Nich- 
 olas r. Adams, 2 Wharton, 17; Meach. v. Id., 24 Vt. 591; neither 
 is an order upon the bank good as such a gift. Consler v. Snow- 
 den, 54 Md. 175. 
 
 22 This is symbolic delivery, but if the subject matter of the 
 
REAL PROPERTY LIMITATION ACT, 1874. 215 
 
 Mortgage. — Richards v. Syms (Barnard Ch. Cas. 90); Mortgage. 
 Hurst' v. Beach (5 Madd. 351), Duffleld v. Elwes (1 
 Bligh, N. S. 543). 23 
 
 Policy of insurance. — Witt v. Amis (1 Best & Sm. Policy of 
 109); Amis v. Witt (33Beav. 619). 2 * insurance. 
 
 Receipt for monev. — Moore v. Darton (4 De G. & Receipt for 
 Sm. 517). 25 money. 
 
 * Heal Property Limitation Act, 1871,.. [ * 126] 
 
 SUTTON v. SUTTON. 
 (22 Ch. Div. 511.) 
 
 After twelve years from, the last payment of Principle. 
 interest or acknowledgement in writing of debt 
 the personal remedy of the mortgagee upon the 
 covenant is barred, as well as the remedy against 
 the land. 
 
 The plaintiff brought an action in 1882 on a coy- Summary of 
 enant contained in a certain indenture executed in factSi 
 May. 1868, for payment of £1850 with interest at 5 
 per cent., together with all the costs " relating to 
 the said indenture and attending the execution of 
 the trusts and powers contained therein." 
 
 The defence was that the indenture of May, 1886, 
 was in fact a mortgage on certain lands, and that 
 no part of the principal nor any interest thereon 
 had been paid by the defendant since November, 
 1869, which was more than twelve years before the 
 commencement of the action, and the defendant 
 claimed the benefit of the Real Property Limita- 
 tion Act, 1874, and of all Statutes of Limitation. 
 
 The Court of Appeal decided on demurrer that 
 
 the plaintiff was not entitled to recover. 
 
 gift will permit of a more perfect delivery it must be made as a 
 symbolic delivery will not suffice. Parrish v. Stone, 14 Pick. 
 203; Sessions v. Mosely, 4 Cush. 87. 
 
 23 Durke v. Hicken, 61 Cal. 346. 
 
 24 Trough's Est., 75 Pa. St. 115; "Westerlo v. BeWitt (supra). 
 
 25 A valid donatio mortis causd may also be made of any obliga- 
 tion due to donor by donee, and such gift is a discharge of the 
 debt. 
 
216 
 
 REAL PROPERTY LIMITATION ACT, 1874 
 
 Form of 
 action. 
 
 [*127] 
 
 Section 8. 
 
 The plaintiff in this case, it will be observed, brought 
 his action in a very peculiar form, doubtless in order to 
 avoid the effect of the Real Property Limitation Act, 
 1874 (37 & 38 Vict. c. 57). The plaintiff claimed on 
 a covenant, but the defence brought out that the deed 
 in which the covenant was contained was a mortgage of 
 land, and thus the neat point was raised, which was dis- 
 posed of by the Court on demurrer, whether the plain- 
 tiff was precluded from relief by the Real Property 
 Limitation Act, 1874. 
 
 •^ Sect. 8 of that important statute, which came into 
 operation 1st January, 1879, provides that "no action 
 or 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 twelve years next after a present right to receive 
 the same shall have accrued to some person capable of 
 giving a discharge for or release of the same, unless in 
 the meantime some part of the principal money or some 
 interest thereon shall have been paid, or some acknowl- 
 edgment 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 but within twelve years after such payment 
 or acknowledgment or the last of such payments or ac- 
 knowledgments, if more than one, was given." The 
 provisions of this section were most carefully consid- 
 ered in the leading case by the Court of Appeal. After 
 pointing out that the object of the Statutes of Limita- 
 tion was to give legislative authority to that which had 
 previously rested on judicial decision, viz., the pre- 
 sumption of payment after a certain lapse of time, 
 they proceeded to construe the words, " no action, suit, 
 or other proceeding shall be brought to recover any sum 
 of money secured by any mortgage," where they ob- 
 served that the order of the words probably intended 
 was to bring together " action at law " and suit at 
 equity. It had been contended that the effect of these 
 words was not to prevent the recovery of any sum of 
 money secured by a mortgage, but that they applied 
 only to the recovery of the money so far as it could be 
 recovered by a sale of the land or by the receipt of the- 
 rents, i.e. so far as it could be got out of the land. 
 
 To this Jessel, M.B.:, said there were two objections — 
 ( 1 ) that it put words into the section which were not 
 to be 'found there; and (2) that it gave no meaning fc> 
 
REAL PROPERTY LIMITATION ACT, 1874. 217 
 
 the words which were in the section, because you could 
 not get the money as against the land at the time when 
 the - Act was passed except by a suit in the Court of 
 Chancery. 
 
 A further reason, which though not conclusive was 
 nevertheless entitled to weight against this interpreta- 
 tion, was that it would be absurd that you should get 
 rid of the greater, viz., the liability of the land, and re- 
 tain the less, the personal liability to pay. The primary 
 object of the Act, the Court said, was no doubt to bar 
 - actions for the recovery of land or for enforcing charges 
 thereon, but this section had gone beyond that point, 
 and according to its true construction the action on a 
 covenant in mortgage, being an action to recover 
 money charged upon land, was barred by it after twelve 
 years. 
 
 It was held in the case of Fearnside v. Flint (22 Ch. Collateral 
 D. 579), which came before the Court very soon after bond, 
 the leading case, and is reported in the same volume of 
 the Law Reports, that the fact that the mortgage debt 
 was secured by a collateral bond given by the mort- 
 gagor made no difference, and that the debt was barred 
 by the lapse of twelve years since the last payment of 
 interest or written acknowledgement of the mortgage 
 debt. 
 
 -^■On this point the Court said ''the decision of the [ -fa 128] 
 Court of Appeal in Sutton v. Sutton has determined that 
 a sum of money secured by a mortgage upon land, and 
 also secured by a covenant of the mortgagor in the 
 mortgage deed, is to be treated as one and the same 
 sum ; so that when the right of suit or action in respect 
 of the land is gone, the right on the covenant ceases 
 also. It appears to me that no distinction can exist 
 between a covenant contained in a mortgage deed and 
 a collateral bond given at the same time as the mort- 
 gage." (See post, p. 129, as to the further point which 
 arose in this case on sect. 10 of the same Act, 37 & 38 
 Vict. c. 57). 
 
 The principle of the cases of Sutton v. Sutton and Collateral 
 Fearnside v. Flint was held not to apply to a case where bon(i by 
 a collateral bond had been given by a surety to secure sure y " 
 a mortgage debt conditioned to be void on payment by 
 the mortgagor of the principal and interest in In re 
 Powers, Lindsell v. Phillips (30 Ch. D. 291). The Court 
 of Appeal here approved of the decision in Fearnside 
 v. Flint, and said that to hold otherwise would be to 
 give a different effect to an instrument because it .was 
 not written on the same sheet of paper. Here, how- 
 
218 
 
 REAL PROPERTY LIMITATION ACT, 1874. 
 
 Section 9. 
 
 Possession 
 by mortgagee 
 of part oi the 
 mortgaged 
 land. 
 
 Mortgage 
 paid off. 
 Legal 
 
 estate. 
 
 [*129] 
 
 Section 10. 
 
 ever, the proceeding were not between the same parties, 
 and they were to enforce a different debt not charged 
 on land, and therefore the cases of Sutton v. Sutton and 
 Fearnside v. Flint had no application. 
 
 The next section (9) of the Real Property Limitation 
 Act, 1874, provides that the Act is to be read in con- 
 nection with the Statute of Limitations (3 & 4 W. IV. 
 c. 27) as if six years were substituted in that Act for 
 ten and twelve for twenty, and with the supplementary 
 enactment (7 W. IV. & 1 Vict. c. 28) as if twelve years 
 were there now substitued for twenty years. These 
 statutes were considered by the Court of Appeal in the 
 important case of Horlock v. Ashberry (19 Ch. D. 539), 
 where it was held that the payment, to come within 1 
 Vict. c. 28, must be a payment of principal or interest 
 made by the mortgagor or some person bound to pay 
 principal or interest on his behalf, and that conse- 
 quently payment of rent by a tenant required to do so 
 by notice from the mortgagee is not sufficient. In this 
 case it was laid down (p. 548) that the principle on 
 which all the Statutes of Limitation are based is that 
 the payment to take a case out of the operation of the 
 statute must amount to an acknowledgment by the per- 
 son making the payment of his liability and an admis- 
 sion of the title of the person to whom the payment is 
 made; and see Chinnery v. Evans (11 H. L. C. 129); 
 Heath v. Pugh (7 App. Cas. 235). 
 
 In Kinsman v. Rouse (17 Ch. D. 104) it was held 
 that where a mortgagee had been in undisturbed posses- 
 sion of part of the mortgaged land for more than 
 twenty years the right of the mortgagor to redeem was 
 barred by sect. 28 of the Statute of Limitations (3 & 4 
 Will. IV. c. 27) although he held possession of the re- 
 mainder of the mortgaged land. Where a mortgage 
 on real estate had been paid off but no reconveyance 
 executed the legal estate of the mortgagee was held to 
 be extinguished by thirteen years' adverse possession 
 of the mortgagor. Sands to Thompson (22 Ch. D. 614). 
 
 ■fc Sect. 10 of the Real Property Limitation Act, 1874, 
 provides that after the commencement of this Act no 
 action, suit, or other proceeding shall be brought to 
 recover any sum of money or legacy charged upon or 
 payable out of any land or rent at law or in equity and 
 secured by an express trust, or to recover any arrears 
 of rent or of interest in respect of any sum of money or 
 legacy so charged or payable and so secured, or any 
 damages in respect of such arrears, except within the 
 time within which the same would be recoverable if 
 
REAL PROPERTY LIMITATION ACT, 1874. 219 
 
 there were not any such trust. When this section is Judicature, 
 read in conjunction with sect. 25, sub-sect. 2, of the Act, 1873,' 
 Judicature Act, 1873, which provides that " no claim of sect - 25 > 
 a cestui que trust against his trustee for any property snb " seot - 2 - 
 held on an express trust, or in respect of any breach of 
 such trust, shall be held to be barred by any Statute of 
 Limitations" there appears at first to be some incon- 
 sistency. This, however, is explained by the fact that 
 "the section of the Judicature Act applies between trus- 
 tee and cestui que trust, and preserves the personal 
 Temedy, while the 10th sect of the Real Property Limi- 
 tation Act applies between the land charged, though 
 secured by way of trust, and the persons entitled to the 
 charge, and bars the remedy against the land. Lewin, 
 ■8th ed. p. 885, citing Fearnside v. Flint (ubi supra) and 
 Hughes v. Cole (27 Ch. D. 231). 
 
 Neivbould v. Smith (33 Ch. Div. 127), affirming 29 
 Ch. D. 882, is a case of much importance with regard 
 to the rights of mortgagees. The action was brought 
 by the administratrix of Newbould, a solicitor, who died 
 in 1880, to obtain foreclosure or sale of two mortgage 
 securities, one of which had been vested in Newbould, 
 while the other had since his death been transferred to 
 his administratrix. The defendants pleaded the Statute 
 ■of Limitations with regard to both properties. 
 
 In 1863 Newbould, lent £430 to Smith on property 
 in Montague Street. There was an adjustment of ac- 
 count in 1866, and the balance due on the mortgage 
 was settled at £350. After this there were no entries 
 relating to the Montague Street mortgage, but there 
 was an entry in Newbould's diary dated September, 
 1878, "Smith, C. B. Cash on account of rent and in- 
 terest £50." 
 
 The second consisted of property which Smith in 1863 
 had mortgaged to clients of Newbould's. Up to Feb- 
 ruary, 1866, when the adjustment of account took place 
 with regard to the Montague Street property, Newbould 
 paid the interest and brought it into his account with 
 Smith. After 1866 Newbould continued to pay the in- 
 terest, and there was evidence of one of the mortgagees 
 that he received interest from Newbould in the belief 
 that it was paid through him by Smith. There was 
 also a letter from Newbould to the mortgagee in which 
 he stated that he had paid to their account a sum re- ' 
 •ceived from Smith for interest, but there was no further 
 evidence to connect Smith with the payments, and no 
 proof that Newbould had acted as his solicitor after 
 1866. 
 
220 DEALINGS WITH REVERSIONERS. 
 
 The Court of Appeal affirmed the decision of the 
 Court below, and held that the plaintiff's remedy in 
 respect of both properties was barred by the statute. 
 [ if 130] ic In Blake v. Gale (32 Ch. Div. 571) mortgagees of 
 
 real estate had assented to the distribution of the per- 
 sonal estate of the mortgagor among his residuary lega- 
 tees, and more than 20 years afterwards, their security 
 having proved insufficient, they claimed against the 
 residuary legatees, and it was held that after such a 
 lapse of time they were not entitled to recover on the 
 ground that their right was purely equitable, and that 
 under the circumstances it would be inequitable to allow 
 it to be enforced. 
 
 Dealings with Reversioners. 
 
 EARL OF AYLESFORD i: MORRIS. 
 
 (L. E. 8 Ch. 484.) 
 
 Principle. The Court has jurisdiction to relieve expectant 
 
 heirs against unconscionable bargains. 
 
 Summary of The Earl of Aylesford, who was entitled as tenant 
 facts. i n tail expectant on the death of his father, who was- 
 
 in ill health, to large estates, had contracted con- 
 siderable debts during his minority, and shortly 
 after attaining his majority was introduced by a. 
 creditor to Morris, a money-lender, who advanced 
 him £6800 on his acceptance at three months for 
 £8000, and a policy effected at Lord Aylesford's 
 cost. When the acceptance became due an arrange- 
 ment was entered into under which Lord Aylesford 
 received a small sum and gave acceptances for 
 £11,000. The Court of Appeal ordered all securi- 
 ties to be given up upon payment of the sums actu- 
 ally advanced, with interest at five per cent, per 
 annum. 
 
 History of A very full history of the law with regard to the- 
 
 the law. relief which Courts of equity have granted to expectant 
 
 heirs and reversioners may be found in the judgments 
 
DEALINGS WITH REVERSIONERS. 221 
 
 of the Court of Appeal in the leading case, and of the 
 House of Lords in O'Borke v. Bolingbrook ( 2 App. Cas. 
 814). 
 
 ^f " The principle," said Lord Hatherley in the latter r jl 131] 
 <;ase, " on which equity originally proceeded to set aside 
 such transactions was for the protection of family prop- 
 erty, but this principle being once established, the 
 Court extended its aid to all cases in which the parties 
 to a contract have not met upon equal terms." 
 
 " There is," said Lord Selborne in the leading case 
 (L. E. 8 Ch. 489), "hardly any older head of equity 
 than that described by Lord Hardwicke in Earl of 
 Chesterfield v. Janssen (2 Ves. Sen. 125, 127) as re- 
 lieving against the fraud ' which infects catching bar- 
 gains with heirs, reversioners, or expectants, in the life 
 of the father,' &c. 'These' (he said) 'have been gen- 
 erally mixed cases,' and he proceeded to note two 
 character always found in them. There is always 
 fraud presumed or inferred from the circumstances or 
 ■conditions of the parties contracting — weakness on one 
 side, usury on the other, or extortion, or advantage 
 taken of that weakness. There has been always an 
 appearance of fraud from the nature of the bargain." 
 
 Lord Selborne then proceed to shew how in the cases 
 of catching bargains with expectant heirs, one peculiar 
 feature has been almost universally present; considered 
 by Lord Brougham (in King v. Hamlet, 2 My. & K. 
 456, where held that if the transaction was known to 
 the father or person in loco parentis of the expectant, 
 no relief could be granted) to be an indispensable con- 
 dition of equitable relief, though Lord St. Leonards, 
 whose opinion was approved by Lord Selborne, dis- 
 sents from that opinion (Sug. V. & P. 11th ed. p. 316). 
 " The victim comes to the snare (for this system of 
 dealing does set snares, not, perhaps, for one prodigal 
 more than another, but for prodigals generally as a 
 class), excluded, and known to be excluded, by the 
 very motives and circumstances which attract him, 
 from the help and advice of his natural guardians and 
 protectors, and from that professional aid which would 
 Toe accessible to him, if he did not feel compelled to 
 secrecy. He comes in the dark, and in fetters, without 
 either the will or the power to take care of himself, 
 and with nobody else to take care of him. Great 
 judges (see Lord Hardwicke's judgment in Chesterfield 
 v. Janssen, 2 Vesey, 125) have said that there is a 
 principle of public policy in restraining this; that this 
 system of undermining and blasting, as it were, in the 
 
DEALINGS WITH REVERSIONERS. 
 
 [*182] 
 
 Advance- 
 ment of 
 goods. 
 
 Jurisdiction. 
 
 Repeal of 
 usury laws 
 31 Vict. c. 4. 
 
 bud the fortunes of families is a public as well as a 
 private mischief; that it is a sort of indirect fraud 
 upon the heads of families from whom these transac- 
 tions are concealed, and who may be thereby induced 
 to dispose of their means for the profit and advantage 
 of strangers and usurers, when tbey suppose themselves 
 to be fulfilling the moral obligation of providing for 
 their own descendants. Whatever weight there may 
 be in any such collateral considerations, they could 
 hardly prevail, if they did not connect themselves with 
 an equity more strictly and directly personal to the 
 plaintiff in each particular case. But the real truth is, 
 that the ordinary effect of all the circumstances by 
 which these considerations are introduced, is to deliver 
 over the prodigal helpless into the hands of those in- 
 terested in taking advantage of his weakness; -^ and 
 we so arrive in every such case at the substance of the 
 conditions which throw the burden of justifying the 
 righteousness of the bargain upon the party who claims 
 the benefit of it." 
 
 It was held in several cases, that where, in the words 
 of Lord Thurlow in Barker v. Vansommer (1 Bro. C 
 C. 149), there is ''an advancement of goods" for the 
 purpose of being resold instead of money to supply the 
 necessities of the expectant heir or reversioner, Equity 
 will treat the transaction as merely colourable and 
 grant relief. See also Waller v. Datt (1 Ch. Ca. 276; 
 1 Dick. 8), Barny v. Beak (2 Ch. Ca. 136), and King 
 v. Hamlet (2 My. & K. 456). 
 
 There was at first, Lord Hatherley tells us in 
 O'Rorke v. Bollingbroke, considerable oscillation of 
 opinion with regard to the jurisdiction, but it was at 
 last settled. The usury laws were repealed by 17 & 18 
 Yict. c. 90. A further change was introduced by 31 
 Vict. c. 4, which provides as follows: — "No purchase 
 made bond fide and without fraud or unfair dealing, of 
 any reversionary interest in real or personal estate 
 shall hereafter be opened or set aside merely on the 
 ground of under value." 
 
 "(2) The word purchase in this Act shall include 
 every kind of contract, conveyance or assignment, 
 under or by which any beneficial interest in any kind 
 of property may be acquired. 
 
 "(3) This Act shall come into operation on the first, 
 day of January, one thousand eight hundred and sixty- 
 eight." 
 
 In Webster v. Cook (L. E. 2 Ch. 542) the borrower 
 was entitled to the income of property subject to 
 
DEALINGS WITH REVERSIONERS. 223 
 
 the payment of two jointure rent-charges, and of the 
 interest on mortgages which reduced the income to a 
 small amount. In consideration of an advance of 
 £1000, to which £400 was afterwards tacked on at £5 
 per cent, per month, he assigned the income by way of 
 security for £3300 repayable on the death of the first 
 life annuitant, £1 per cent, per anDum 1o be paid in 
 the meantime, and redeemable on payment of £1500 at 
 the end of a year. The Court of Appeal held that the 
 borrower's interest in the income was not a reversion, 
 and that neither transaction could be set aside. 
 
 In O'Rorke v. Bolingbroke (2 App. Cas. 814), the 
 question was whether the sale of a reversion could be 
 set aside. The vendor of the reversion had only just 
 attained his majority, and he had no separate and in- 
 dependent advice, but there being no evidence of fraud 
 on the part of the purchaser, the House of Lords re- 
 fused to set aside the sale. 
 
 In this case Lord Hatherley entered into an elab- 
 orate consideration of those decisions and rules by 
 which the Court of Chancery has been governed in re- 
 gard to the dealings of persons whom the Court thinks 
 to be in need of its special protection and care, with 
 reference to interests which other persons may obtain 
 in their property, without, as it appears to the Court, 
 sufficient consideration or advice on the part of those 
 who are in need of special protection. He traced the 
 history of the law from the early cases collected in a 
 note to Davis v. The Duke of Marlborough (2 Sw. 108, 
 139, n. ), among which is particularly mentioned the 
 decision of Lord Nottingham in Berny v. Pitt ( 2 Vern. 
 -^■14), and expressed an opinion that, having regard [ -^- 133] 
 to the habitual protection afforded by the Court of 
 Equity to the young and inexperienced, the vendor 
 ought to be relieved from his improvident bargain. 
 The majority of the House of Lords, however, held that 
 the transaction ought to be allowed to stand. There 
 was strong evidence that the purchaser believed that the 
 tenant for life, the vendor's father, who died some three 
 months after the transaction was completed, was a good 
 life at the time, but the House of Lords expressed an 
 opinion that if the purchaser had known that the 
 father was in bad health, or was only ignorant because 
 he had neglected to make proper inquiries, or had ne- 
 glected to take some steps which according to the rules 
 of equity he ought to have taken, their decision would 
 have been different. 
 
 The following statement of the present state of the 
 
224 DEALINGS WITH REVERSIONERS. 
 
 Present law as to the sale of reversions by Lord Selborne in the 
 
 state of the leading case was cited with approval by the House of 
 * aw Lords iri O'Rorke v. Bolingbroke. The usury law, how- 
 
 ever, proved to be an inconvenient fetter upon the lib- 
 erty of mercantile law. " The arbitrary rule of equity 
 as to sales of reversions was an impediment to fair and 
 reasonable as well as to unconscionable bargains. Both 
 have been abolished by the legislature, but the aboli 
 tion of the usury laws leaves the nature of the bargain 
 capable of being a note of fraud in the estimation of 
 this Court, and the Act as to sales of reversion (31 
 Vict. c. 4) is carefully limited to purchases made bond 
 fide and without fraud or unfair dealing, and leaves 
 under value still a material element in cases in which 
 it is not the sole ground for relief. Those changes of 
 the law have in no degree altered the onus probandi in 
 those cases, which in the language of Lord Hardwicke 
 rises from the circumstances or conditions of the par- 
 ties contracting — weakness on one side, usury on the 
 other, or extortion or advantage taken of that weak- 
 ness, a presumption of fraud. Fraud does not mean 
 here deceit or circumvention, it means an unconscien- 
 tious use of the power arising out of these circumstan- 
 ces and conditions, and when the relative position of 
 the parties is such as primd facie to raise the presump- 
 tion, the transaction cannot stand unless the person 
 claiming the benefit of it is able to repel the presump- 
 tion by contrary evidence proving it to have been in 
 point of fact just and reasonable." 
 
 In Nevill v. Snelling (15 Ch. D. 679), the last case 
 upon the subject, the defendant, a monty-lender who 
 kept a "Peerage," was in the habit of sending to sons 
 of peers circulars in which he offered to lend money to 
 any amount on personal security. Such a circular was 
 sent by him to the plaintiff, who was the third son of 
 the Marquis of Abergavenny, and was then under age. 
 The plaintiff, while still under age, applied to the de- 
 fendant for a loan of £50. The money was advanced 
 on the security of a promissory note for £65, payable 
 in three months, with interest at 60 per cent, per an- 
 num. After the plaintiff came of age further sums 
 were advanced on similar terms, imperfectly understood 
 by him. The plaintiff was not entitled to any prop- 
 [ -Jf 134] erty, -^- either in possession or in reversion. It ap- 
 peared that the money was advanced by defendant on 
 the credit of vague general expectations, and in the 
 hope of extorting payment from some relation. Den- 
 man, J., in delivering judgment, in which all the pre- 
 
DEALINGS WITH REVERSIONERS. 225 
 
 vious cases are noticed, said: "The real question in 
 every case seems to me to be the same as that which 
 arose in the case of expectant heirs and reversioners 
 before the special doctrine in their favour was estab- 
 lished — that is to say, whether the dealings have been 
 fair, and whether undue advantage has been taken by 
 the money-lender of the weakness or necessities of the 
 person raising the money. Sometimes extreme old age 
 has been unduly taken advantage of, and the transac- 
 tion set aside. Sometimes great distress. Sometimes 
 infancy has been imposed upon, and transactions, 
 though ratified at the full age, have been set aside be- 
 cause of the original vice with which they were tainted. 
 In every case the Court has to look at all the circum- 
 stances." 
 
 It may be observed that in the leading case a portion 
 of the plaintiff's liability was in respect of sums of 
 money advanced to him during his minority. Since 
 the decision of Aylesford v. Morris, however, the law 
 has been very materially altered in this respect by the 
 Infants' Relief Act, 1874 (37 & 38 Vict. c. 62), coming Infants' 
 into operation on the 7th August, 1874. f$f Act ' 
 
 Sect. 1 provides that "all contracts, whether by spe- 
 cialty or by simple contract, henceforth entered into by 
 infants for the repayment of money lent or to be lent 
 or for goods supplied or to be supplied (other than con- 
 tracts for necessaries) and all accounts stated with in- 
 fants shall be absolutely void." This is followed by a 
 proviso that this enactment shall not invalidate any 
 contract into which an infant may by any existing or 
 future statute or by the rules of common law or equity 
 enter except such as now by law are voidable. 
 
 Sect. 2 provides that no action shall be brought Sect. 2. 
 whereby to charge any person upon any promise made 
 after full age to pay any debt contracted during in- 
 fancy, or upon any ratification made after full age of 
 any promise or contract made during infancy, whether 
 there shall or shall not be any new ■ consideration for 
 such promise or ratification after full age. (Note, how- Fresh pro- 
 ever, that a fresh promise made after majority, North mise made 
 cote v. Doughty (4 C. P. D. 385), Ditcham v. Worrall ?£?L mar 
 (5 C. P. D. 410), is not like a mere ratification, as Cox- 
 head v. Mullis (3 C. P. D. 439), within the statute. 
 See further as to dealings with reversioners: Croft v. 
 Graham (2 De G. J. & S. 155); Savery v. King (L. E. 
 5 H L. 627); Miller v. Cook (L. R. 10 Eq. 641); Tyler 
 v Yates (L. R. 11 Eq. 265; 6 Ch. 665); Beynon v. 
 Cook (L. R. 10 Ch. 389). 
 
 15 MODERN EQUITY. 
 
226 
 
 AGREEMENT FOR A LEASE. 
 
 Confirma- 
 tion and 
 acquies- 
 cence, 
 
 Voidable traasactions may be validated by confirma- 
 tion or acquiescence, but there can be no ratification of 
 an invalid transaction where the person performing the 
 supposed act of ratification has been kept by the con- 
 duct of the party in whose favour it is made, unaware 
 of the invalidity of the first transaction, and has not at 
 the time of the supposed ratification the means of form- 
 ing an independent judgment. Savery v. King (ubi 
 supra). 
 
 [ * 135] 
 
 Principle. 
 
 j{ Agreement for a Lease. 
 
 Summary of 
 
 facts. 
 
 WALSH v. LONSDALE. 
 (21 Ch. Div. 9.) 
 
 Since the Judicature Acts a tenant holding 
 under an agreement for a lease, of which specific 
 performance would oe decreed^ stands in pre- 
 cisely the same position as if the lease hadieen 
 executed, and every iranch of the Court must 
 give him the same rights' 
 
 Lonsdale agreed to grant, and Walsh agreed to 
 take, a lease of a mill called the Province Mill for 
 seven years at a rent of 30s. a year for each loom, 
 the looms not to be less after the first year than 540. 
 The lease was to contain the usual provisions " and 
 particularly those inserted in a lease of the New- 
 field Mills." .The lease of the ■'Newiield Mills" 
 contained a stipulation that there should always be 
 payable in advance on demand one whole year's 
 rent in addition to the proportion, if any, of the 
 
 1 Specific performance will be decreed where there is an agree- 
 ment for a lease. Farley v. Stokes, 1 Parsons, 422; Furnival v . 
 Crew, 3 Atkyns, 83. 
 
 2 A mere agreement for a lease does not imply a covenant for 
 quiet enjoyment during the term. Brashier v. Jackson 6, 
 Meeson & Welsby, 549, and the agreement to lease raises an im- 
 plied covenant on the part of the lessor that he has the power to 
 demise and if the lessee is prevented from entering at the com- 
 mencement of his term by the unlawful holding over of the 
 former tenant, it is not an eviction by good title, and the lessee 
 cannot maintain an action against the lessor on the implied 
 covenant for quiet enjoyment. Cozens v. Stevenson, 5S. & E. 421. 
 
AGREEMENT FOR A LEASE. 227 
 
 yearly rent due and unpaid for the period previous 
 to the demand. Walsh was let into possession of 
 the premises, and for two years and a half paid rent 
 quarterly, but not in advance. Lonsdale then served 
 a notice demanding immediate payment of the sum 
 of £1013 14s. which was made up of £840 for one 
 whole year's rent of the mill in advance, together 
 with a sum for rent which had accrued from the last 
 quarter day, and a sum for insurance. Two days 
 later Lonsdale put in a distress for the amount de- 
 manded. The Court of Appeal decided that Lons- 
 dale was not to be deprived of the security of the 
 distress except on the terms of Walsh paying £810, 
 being the amount of the dead or fixed rent at the 
 rate of 30s. a loom for 540 looms. 
 
 -^r The principle on which the decision in this case is [ -^ 136] 
 based is thus stated by Jessel, M.R. : " There is an agree- 
 ment for a lease under which possesaion has not been 
 given. Now since the Judicature Act the possession is 
 held under the agreement, there are not two estates as 
 there were formerly, one estate at common law by rea- 
 son of the payment of the rent from year to year, and 
 an estate in equity under the agreement. There is only 
 one Court, and the equity rules prevail in it. The 
 tenant holds under an agreement for a lease. 3 He holds 
 therefore under the same terms as if a lease had been 
 granted, it being a case in which both parties admit 
 that relief is capable of being given by specific per- 
 formance. That being so, he cannot complain of the 
 exercise by the landlord of the same rights as the land- 
 lord would have had if a lease had been granted. On 
 the other hand he is protected in the same way as if a 
 lease had been granted ; he cannot be turned out by 
 six months' notice as a tenant from year to year. He 
 has a right to say ' I have a lease in equity and you 
 only re-enter if I have committed such a breach of 
 covenant as would, if a lease had been granted, have 
 entitled you to re-enter according to the terms of a 
 proper proviso for re-entry.' That being so, it appears 
 to me that, being a lessee in equity, he cannot complain 
 
 3 Somewhat resembling a lease is an agreement to lease which 
 vests no legal title in the would-be tenant but gives him a right. 
 to maintain an action for damages. Weaver v. Wood, 9 Barr. 220. 
 
228 
 
 AGREEMENT FOR A LEASE. 
 
 Ground 
 Game Act, 
 1880. 
 
 Bankruptcy 
 Act, 1883, 
 sect, 56. 
 
 [*137] 
 
 of the exercise of the right of distress merely because 
 the actual parchment has not been signed and sealed. " 
 
 The principle of Walsh v. Lonsdale was held to apply 
 to a case which arose on the construction of the Ground 
 Game Act, 1880, Allhusen v. Brooking (26 Ch. D. 559). 
 There the question was whether the landlord's right to 
 the ground game on the land was preserved by the oper- 
 ation of the saving clause (sect. 5), which is as fol- 
 lows : — " Where at the date Of the passing of this Act 
 the right to kill and take ground game on any land is 
 vested by lease, contract of tenancy, or other contract 
 bona fide made for valuable consideration in some per- 
 son other than the occupier, the occupier shall not be 
 entitled under this Act, until the determination of that 
 contract, to kill and take ground game on such land." 
 The defendant held as tenant from year to year expir- 
 ing after the Act came into operation, and he had also 
 an equitable interest under an agreement prior to the 
 Act for a lease of fourteen years, which was to com- 
 mence from the expiration of the legal interest, and re- 
 served to the landlord all game (except rabbits, with 
 regard to which the tenant was to have certain rights). 
 It was held that .the agreement for a lease must be 
 treated as equivalent to a lease/ and that the reserva- 
 tion of the game thus came within the operation of the 
 saving clause. 
 
 On the same principle, it was decided in Ex parte 
 Monkhouse, In re Maughan (14 Q. B. D. 956). that the 
 right of a trustee in bankruptcy to disclaim property 
 of an onerous character, under sect. 55 of the Bank- 
 ruptcy Act, 1883, extended to an agreement for a lease. 
 Field, J., in delivering judgment, said, " Since the Ju- 
 dicature Acts there is now no distinction between a 
 lease and an agreement for a lease, because equity 
 looks upon that as done which ought to be done. 5 
 Consequently after the execution of the agreement for 
 a lease, this -fr debtor had a property vested in him, 
 
 4 The distinctive difference between a lease and an agreement 
 to lease is that the former are words of present demise, or else it 
 is expressed that possession is to be taken on » certain day, 
 always provided there be no contrary expression, nor any prior 
 duty to be performed. Jackson and Gross, on Landlord and 
 Tenant, par. 23 & 24. 
 
 5 Whenever a court of equity interposes to compel the perform- 
 ance of an act which has covenanted to be performed, it always 
 treats the subject as if it had been performed at the time con- 
 tracted. See Jordan?;. Cooher, 3 S. & E. 585; Reeve's Domestic 
 Eel. title Chancery, 446. "This is a very important maxim, and 
 one which lies at the foundation of many of the great doctrines 
 in equity." Bispham's Eq. (4th ed.) sec. 44. 
 
AGREEMENT FOR A LEASE. 229 
 
 that is to say, he had land which was burthened with 
 onerous covenants." 
 
 A notice issued by the authorities of Somerset House 
 (Weekly Notes, 1884, p. 559) directed the attention of 
 "house agents, builders, and the public generally" to 
 the provisions contained in sect. 96 of the Stamp Act, 
 1870, with regard to the stamping of agreements and Stamping of 
 subsequent leases. That section provides as follows: — agreements 
 
 (1) An agreement for a lease or tack, or with respect for lease - 
 to the letting of any lands, tenements, or heritable sub- 
 jects, for any term not exceeding thirty-five years, is to 
 
 be charged with the same duty as if it were an actual 
 lease or tack made for the term and consideration men- 
 tioned in the agreement. 
 
 (2) A lease or tack made subsequently to, and in 
 conformity with, such an agreement duly stamped is to 
 be charge with the duty of sixpence only. 
 
 By the joint operation of the Statute of Frauds (29 
 Car. II. c. 3), and 8 & 9 Vict. c. 106, s. 3, every lease 
 of corporeal hereditaments for a term exceeding three 
 years from the making thereof, now requires to be by 
 deed. 6 See Shelford's Eeal Property Statutes, 8th ed. 
 p. 633. 
 
 Sect. 4 of the Conveyancing Act, 1882, provides that Conveyancing 
 where a lease is made under a power, any preliminary Act, 1882, 
 contract for or relating to it, shall not for the purposes sec ' ' 
 of deduction of title, form part of the title or evidence 
 of the title to the lease. See note to Clerke & Brett's 
 Conveyancing Act, 1882, p. 22. 
 
 In Coatsworth v. Johnson (55 L. (Q.B. ) 220), cited 
 ante, p. 43, a provisional draft lease for 21 years ' had 
 been signed by the parties, containing, inter alia, a 
 covenant with regard to the cultivation of the farm. 
 The plaintiff entered into possession, but before any 
 rent was due the defendant, the landlord, gave him 
 notice to quit for breach of the covenant and turned 
 him out of possession. The plaintiff then brought his 
 action for trespass. The Court of Appeal held that 
 the plaintiff was a mere tenant at will, that no Court 
 would make a decree for specific performance in favour 
 
 6 If it is not in writing the tenancy then becomes a tenancy at 
 ■will. If however possession is taken and held for longer than 
 one year and rent is paid and received a tenancy from year to 
 year is created. Clayton v. Blakey, 2 Smith's Leading Cases, 180 
 and note page 55; Pugh v. Good, 3 W. & S. 56. 
 
 7 In Penna. if a lease is made for over twenty-one years it must 
 be in writing and recorded in the office of the Recorder of Deeds 
 in the county in which the premises are situated, or else it will 
 be void as to subsequent grantees. 1 Smith's Laws, 422. 
 
230 
 
 RESTRICTIVE COVENANTS. 
 
 of a plaintiff who was himself in default by the breach 
 of a covenant, and that consequently he was not entitled 
 to recover; and see Cox v. Bishop (8 De G. M. & G. 
 815), followed in Haywood v. Brunswick Building 
 Society (8 Q. B. Div. 403, 408, 410). 
 
 [ * 138] 
 
 it Restrictive Covenants. 
 
 AUSTERBERRY *■. CORPORATION OF OLDHAM. 
 (29 Ch. Div. 750.) 
 
 Principle. Ihe doctrine of Tulk v. Moxhay is confined 
 
 to restrictive covenants, and will not he extended 
 to a covenant to lay out money or do any other 
 act so as to hind a purchaser taking with notice 
 of the covenant. 
 
 Summary of 
 facts. 
 
 John Elliott conveyed a slip of land, bounded on 
 both sides by other lands which ,belonged to him, 
 to the trustees of a road company, who covenanted 
 with John Elliott, his heirs and assigns, that they, 
 their heirs and assigns, would make and maintain 
 the road, and allow the user by the public subject 
 to tolls. John Elliott sold his lands to Austerberry 
 and the trustees sold the road to the Corporation of 
 Oldham, both parties having notice of the covenant. 
 The Court of Appeal decided that Austerberry could 
 not enforce the covenant against the Corporation. 
 
 Principle of 
 Tulk v. 
 Moxhay. 
 
 In this case the Court of Appeal applied, and treated 
 as settled the law with regard to restrictive covenants 
 which had been discussed in the previous cases of Hay- 
 wood v. Brunswick Building Society (8 Q. B. Div. 403), 
 and the London and South Western Railway Co. v. 
 Gomm (20 Ch. Div. 562). 
 
 Tulk v. Moxhay (2 Phill. 774), the celebrated " Lei- 
 cester Square Case," characterised in Haywood v. Bruns- 
 wick Building Society (ubi supra) as the leading case 
 in which the equitable doctrine " was brought to a 
 
RESTRICTIVE COVENANTS. 231 
 
 focus," decided by Lord Chancellor Cottenham in 1848, 
 established the principle which has ever since been 
 adopted with regard to what are called " restrictive cove- 
 nants." The principle laid down in that decision was 
 that "a covenant between vendor and purchaser, on 
 the sale of land, that the purchaser and his assigns 
 shall use or abstain from using the land in a particular 
 way, will be enforced in equity against all subsequent 
 purchasers with notice, independently of the question 
 whether it be one which runs with the land so as to be 
 binding -^- upon subsequent purchasers at law." ' " The [ ~fr 139] 
 question," said Lord Cottenham, "is not whether the 
 covenant runs with the land, but whether the party 
 shall be permitted to use the land in a manner incon- 
 sistent with the contract entered into by his vendor, 
 with notice of which he purchased." 2 
 
 " That the question does not depend upon whether 
 the covenant runs with the land is evident from this, 
 that if there were a mere agreement and no covenant, 
 this Court would enforce it against a party purchasing 
 with notice of it, for if an equity is attached to the 
 property by the owner, no one purchasing with notice 
 of that equity can stand in a different situation from 
 the party from whom he purchased. 3 
 
 This case has since been followed and extended, and 
 the decision of Lord Brougham in Keppel v. Bailey (2 
 M. & K. 517), so far as it ignores the effect of taking 
 with notice of a restrictive covenant, must now be con- 
 sidered as overruled: Luker v. Dennis (7 Cb. D. 227), 
 and see the notes to Spencers Case (1 Smith's Leading 
 Cases, p. 98), where the question is discussed under 
 the subject of " covenants running with the land." 
 
 The doctrine of Tulk v. Moxhay has since been recog- 
 nized in a great number of cases which will be found 
 
 1 See Redwine v. Brown, 10 Ga. 311; Herrin v. Melntyre, 1 
 Hawks, (N. Ca.) 410; Chase v. Weston, 12 N. H. 413; Snyder i: 
 Jones, 10 Wendell, 184; Le Ray de Chaumont v. Forsyth. 2 Pa. 
 St. 574: Thompson r. Saunders, 5 Monroe (Ky.), 358; Williams 
 v. Wetherbee, 1 Aikens (Vt.), 239; Wheelers. Sohier, 3CushiDg, 
 222, and Griffin v. Fairbrother, 1 Fairfield (Me.), 91. 
 
 2 Where a person has parted with all his interest in the land, 
 he parts also with all right to or control over the covenants which 
 run with it, and he can only regain that right over them by be- 
 ing made liable upon his own covenants and satisfying that lia- 
 bility. Ra-wle on Covenants for Title, 359; Vancourt v. Moore. 
 26 Mo. 98; Allen v. Little, 36 Me. 170. 
 
 3 If a vendee has notice of a covenant which does not run with 
 the land, equity will compel his observance of it. Brew v. Van 
 Deman, 6 Heisk, 433 ; Frye v. Partridge, 82 111. 267 ; Pollock 
 on Covenants, 229. 
 
232 RESTRICTIVE COVENANTS. 
 
 collected in Kerr oa Injunctions, 2nd ed. 428 ; Seton 
 on Decrees, 4th ed. 184, the principal of which are no- 
 ticed in Keates v. Lyon (L. R. 4 Ch. 218), and Renals 
 v. Coiolishaw (9 Ch. D. 125, and 11 Ch. Div. 866). 
 
 In Keates v. Lyon (ubi supra), Sharp sold part of an 
 estate to Langton, -who entered into restrictive cove- 
 nants for himself, his heirs, and assigns with Sharp, 
 his heirs, executors and administrators, as to building 
 on the purchased property, but there were no covenants 
 by Sharp in reference to the land retained. Sharp sub- 
 sequently sold other parts of the same estate to other 
 purchasers, but there was no evidence as to the contents 
 of their conveyances, nor that they had any notice of 
 the covenants entered into by Langton. Sharp after- 
 wards re- purchased from Langton the lots which he 
 had sold him. It was held that the benefit of Lang- 
 ton's covenants did not in equity pass to the other pur- 
 chasers, and that Sharp could make a title to the re- 
 purchased land free from the covenants. 
 
 In Renals v. Cowlishaw (9 Ch. D. 125; 11 Ch. Div. 
 866), the owners of a residential estate of adjoining 
 lands sold part of the latter to the defendant's prede- 
 cessors in title, subject to restrictive covenants on the 
 user of the land in favour of the vendors and their as- 
 signs. Afterwards the same vendors sold the residen- 
 tial estate to the plaintiffs predecessor in title; the 
 conveyance contained no reference to* the restrictive 
 covenants, and there was no contract or representation 
 that the purchasers were to have the benefit of them, 
 and in fact it contained a different restrictive covenant 
 on the user of the estate. It was held that the plain- 
 tiffs, the assignees of the residential estate, were not 
 entitled to enforce the restrictive covenants against the 
 defendants. The Court of Appeal thought that the 
 case was governed by Keates v. Lyon (ubi supra), and 
 [-^■140] Child v. Douglas (2 Jur. (N.S.) 950), and -^- James, 
 L.J., in delivering judgment, said: "To enable an as- 
 sign to take the benefit of restrictive covenants, there 
 must be something in the deed to define the property 
 for the benefit of which they were entered into." * 
 
 In this case it was pointed out that the previous cases 
 of Mann v. Stephens (15 Sim. 517); Eastwood v. Lever 
 
 4 The rule appears to be in favor of vesting in every purchaser 
 the benefit of all prior covenants which have been entered into 
 by the former vendors, and this, though each vendor may only 
 have covenanted against his own acts. Withy r. Mumford, 5 
 Cowen, 137 : Bickfbrd ». Page, 2 Mass. 460 ; Markland r. Crump, 
 1 D. & B. N. Ca. 94 ; Booth ti. Starr, 1 Conn. 241. 
 
RESTRICTIVE COVENANTS. 233 
 
 (4 D. J. & S. 114) were -like Western v. Macdermott (L. 
 R. 1 Eq. 499; L. R. 2 Ch. 72), which was a case "of 
 reciprocal rights, both parties deriving title under a 
 deed embodying a general building scheme, where the 
 covenants were designed to maintain the general char- 
 acter of the neighbourhood." The general law on the Summary of 
 subject as collected from the cases was thus summed law. 
 up by Hall, V.C., in a judgment with which James, L. 
 J., expressed his entire approval: "Any one who has 
 acquired land, being one of several lots laid out for 
 sale as building plots, where the Court is satisfied that 
 it was the intention that each one of the several pur- 
 chasers should be bound by and should, as against the 
 others, have the benefit of the covenants entered into 
 by each of the purchasers, is entitled to the benefit of 
 the covenant, and this right, that is the benefit of the 
 covenant, enures to the assign of the first purchaser, in 
 other words runs with the land of such purchaser. This 
 right exists not only where the several parties execute 
 a mutual deed of covenant, but wherever a mutual con- 
 tract can be sufficiently established. A purchaser may 
 also be entitled to the benefit of a restrictive covenant 
 entered into with his vendor by another or others, where 
 his vendor has contracted with him that he shall be the 
 assign of it, that is have the benefit of the covenant. 
 And such contract need not be express, but may be col- 
 lected from the transaction of sale and purchase." Hall, 
 V.C., then went on to say that in considering this, cer- 
 tain matters were of importance: (1) The expressed or 
 otherwise apparent purpose or object of the covenant 
 in reference to its being intended to be annexed to 
 other property, or to its being only obtained to enable 
 the covenantee more advantageously to deal with his 
 property. (2) Whether the purchaser is the purchaser 
 of all the land retained by his vendor when the cove- 
 nant was entered into. (3) If he is not, whether his 
 vendor has sold off part of the land so retained, and if 
 he has done so, whether or not he has so sold subject 
 to a similar covenant; a point which may not be so im- 
 portant is whether the purchaser claiming the benefit 
 of the covenant has entered into a similar covenant. 
 In a subsequent portion of the judgment the Vice-Chan- 
 cellor added that the cases established " that in order 
 to enable a purchaser as an assign (snch purchaser not 
 being an assign of all that the vendor retained when 
 he executed the conveyance containing the covenants, 
 and that conveyance not shewing that the benefit of the 
 covenant was intended to enure for the time being of 
 
234 RESTRICTIVE COVENANTS. 
 
 each portion of the estate so retained, or of the portion 
 of the estate of which the plaintiff is assign) to claim 
 the benefit of a restrictive covenant, this, at least, must 
 appear, that the assign acquired his property with the 
 benefit of the covenant, that is, it must appear that the 
 benefit of the covenant was part of the subject matter 
 of the purchase." 
 [ -fa 141 ] "A"The line of cleavage between the old series of author- 
 
 ities, which commenced with Tulk v. Moxhay, and the 
 latter class of decisions which culminate in the leading 
 case, is marked by the case of Haywood v. Brunswick 
 Building Society (8 Q. B. Div. 403). There land had 
 been granted in fee in consideration of a rent-charge 
 and a covenant to build, and keep in good repair, and 
 "when necessary to rebuild. It was held that the as- 
 signee of the grantee, who took with notice of the cove- 
 nant, was not liable on the covenant to repair. The 
 Court of Appeal held that a covenant to repair, being a 
 covenant which could only be enforced by making the 
 owner put his hand in his pocket, and not being a mere 
 restrictive covenant, was not within the rule of Tulk v. 
 Moxhay, and could not be enforced. "I think," said 
 Lindley, L.J., after noticing the previous authorities, 
 "that the result of these cases is that only such a cove- 
 nant as can be complied with without expenditure of 
 mjney, will be enforced agairist the assignee on the 
 ground of notice." 
 
 In London and South Western Railway Company v. 
 Gomm (20 Oh. D. 562) the plaintiff company conveyed 
 certain superfluous land to the adjoining owner, who 
 covenanted that he would at any time, when required 
 by six months' notice, reconvey to the company at a fixed 
 price. Gomm, who purchased with notice of this cove- 
 nant, was called upon by the company to reconvey, and 
 on his refusal an action was brought for specific per- 
 formance. The Court of Appeal in dismissing the ac- 
 tion expressed their most cordial assent to the decision 
 in Haywood v. Brunswick Building Society (ubi supra). 
 
 The doctrine of Tulk v. Moxhay, the Court said, was 
 confined to restrictive covenants and ought not to be 
 extended to affirmative covenants compelling a man to 
 lay out money or do any other act of an active charac- 
 ter. "The purchaser," said Jessel, M.R. (p. 283) in 
 discussing the reason of the rule in Tulk v. Moxhay, 
 " took the estate subject to the equitable burden, with 
 the qualification that if he acquired the legal estate for 
 value without notice, he was freed from the burden." 
 
 In Andrews v. Aitken (22 Ch. D. 218) it was held in 
 
RESTRICTIVE COVENANTS. 235 
 
 an action for specific performance of a contract, that a 
 covenant to build houses on the land the rent of which 
 should be double the value of the rent secured by the 
 deed was unusually restrictive. It was contended that 
 according to the law as settled by Haywood v. Brunswick 
 Building Society and London and South Western Rail- 
 way Company v. Gomm (ubi supra), the defendant 
 could not be called upon to put his hand in his pocket 
 and lay out money on building a house. To this it was 
 answered by the Court that although the plaintiff "could 
 not be called upon to build the house, he might be called 
 upon to allow the house to be built, and the difficult 
 question might arise with regard to the extent to which 
 the liability existed. He might be harassed in an ac- 
 tion relying on Spencer's Case, or on Cooke v. Chilcott 
 (3 Ch. D. 694), which, although undoubtedly more or 
 less infringed upon, was not expressly overruled, or in 
 an action founded upon the fact that he had agreed to 
 take subject to the covenant" 
 
 *In Sayers v. Colly er (28 Ch. D. 103) it was held, [ * 142] 
 explaining the old case of Duke of Bedford v. Trustees 
 of the British Museum (2 My. & K. 552), that a change 
 in the character of the neighborhood which had not 
 been caused by the plaintiff's conduct, was not a ground 
 for refusing him the benefit of restrictive covenants, but 
 that he had by his acquiescence lost his right to enforce 
 the covenant either by injunction or damages. 
 
 In Nottingham Patent Brick & Tile Co. v. Butler (16 
 Q. B. D. 791), Lindley, L.J., stated the law to be as 
 decided in Harrison v. Good (L. R 11 Eq. 338), that 
 it is an inference of fact in each case whether the pur- 
 chasers are bound inter se by such covenants, and that 
 the mere fact that the vendor does not bind himself ex- 
 pressly to enforce the covenants which he takes for the 
 benefit of the purchasers, is not material. 
 
236 MARRIED WOMEN'S PROPERTY ACT, 1882. 
 
 The Married Women? s Property Act, 1882. 
 
 RBID v RBID. 
 (31 Ch. Div. 402.) 
 
 Principle. Sect. 5 of the Married Women's Property Act, 
 
 1882, is limited to property the title to which ac- 
 crues since the 1st of January, 1883, and accord- 
 ingly when a woman married before 1st Jan- 
 uary, 1883, has acquired a title to property in 
 remainder or reversion before that date, such 
 property does not become separate property by 
 falling into possession after that date. 
 
 Summary of A woman married in 1871 was entitled under a 
 facts. settlement made in 1874 to a reversionary interest 
 
 in the proceeds of the sale of certain real estate, and 
 on the death of the tenant for life in February 1883 
 she brought an action asking for a declaration under 
 the Married Women's Property Act, 1882, that she 
 was entitled for her separate use to her share and 
 interest under the deed of 1874, or in the alternative 
 that the whole of such share might be settled on her 
 or her children. 
 [ "A- 143] -fr The Court of AppeaLdecided that she was not 
 
 entitled to the declaration that the property in ques- 
 tion was her separate property, but remitted the 
 question as to her equity to a settlement to be dealt 
 with by the judge from whom the appeal was 
 brought. 
 
 The decision of the Court of Appeal in this case set- 
 tled the law on the construction of sect. 5 of the Mar- 
 ried Women's Property Act, 1882, which, in the words 
 of Cotton, L.J., had given rise to a most singular vari- 
 ety of judicial opinions, which are noticed in the argu- 
 ment, p. 404. 
 Sect. 5. Sect. 5 provides that every woman married before 
 
MARRIED WOMEN'S PROPERTY ACT, 1882. 237 
 
 the commencement of this Act (1st of January, 1883), 
 shall be entitled to have and to hold and to dispose of 
 in manner aforesaid as her separate property all real 
 and personal property, her title to which, whether vest- 
 ed or contingent, and whether in possession, reversion, 
 or remainder, shall accrue after the commencement of 
 this Act, including any wages, earnings, money, and 
 property so gained or acquired by her as aforesaid. 
 
 In coming to a conclusion with regard to the mean- 
 ing of this section, the Court of Appeal, while recogni- 
 sing the principle embodied in the maxim " omnis nova 
 constitutio futuris formam imponere debet non prefer- 
 itis," i.e. that except in special cases the law ought to 
 be construed so as to interfere as little as possible with 
 vested rights; and' allowing some slight degree of 
 weight to the consideration that if the words of a stat- 
 ute are ambiguous, of two constructions, the more con- 
 venient construction (that is to say, the construction 
 which leads to less inconvenience) ought to be adopted, 
 proceeded chiefly upon the precise words employed by 
 the legislature. Little or no assistance, they said, could 
 be derived from the cases which had been decided on 
 covenants with regard to after- acquired property con- 
 tained in marriage settlements. The reason for this is 
 well stated in the judgment. Cases on marriage settle- 
 ments, as pointed out in In re Clinton's Trusts (L. E. 
 13 Eq. 295, 305), cited in the judgment, "must be ap- 
 proached with the presumption that the object and in- 
 tention of the settlement is to prevent the husband ac- 
 quiring property of the wife which falls into possession 
 during the coverture." Section 5 of the Act, on the 
 contrary, being to some extent retrospective, and apply- 
 ing as it does to persons married before the Act, is lim- 
 ited to property the title to which accrues after the Act, , 
 and there is consequently "no presumption that it is 
 not intended to be confined to property in which the 
 husband at the commencement of the Act had not any 
 interest." 
 
 It had been contended on behalf of the claim of Mrs. 
 Eeid, that there might be five kinds of accruer of title, 
 either vested,contingent,in -fa possession,in reversioner r .jl 144] 
 in remainder,and that if any one of them happened after 
 1st Jan. 1883, the property was to be treated as sepa- 
 rate property. The Court of Appeal however decided 
 that according to the fair construction of the section one 
 title only was dealt with. The words, in their opinion, 
 were introduced to preclude an argument which might 
 otherwise have been raised as to the nature of the title 
 
238 
 
 MARRIED WOMEN'S PROPERTY ACT, 1882. 
 
 Married 
 Women's 
 Property 
 Act, 1870. 
 
 Jurisdic- 
 tion. 
 
 Married 
 woman to be 
 capable of 
 holding 
 property and 
 of contract 
 ing as a feme 
 sole. 
 
 which was so to first accrue. It might have been con- 
 tended, if those words had not been introduced, that 
 the accruer of the title in reversion or contingency was 
 not an accruer of title within the meaning of the Act. 
 "I think," said Fry, L.J., "the object of these words 
 is to make it clear that all property in which the mar- 
 ried woman first acquires a title after the commence- 
 ment of the Act comes within the operation of this sec- 
 tion, whatever the nature of that title may be." 
 
 The Married Women's Property Act, 1870, (33 & 
 34 Vict. c. 93), specifically assigned to the Court of 
 Chancery the business of deciding all questions as to 
 property declared by the Act to be separate property 
 of the wife and the appointment of trustees of policies 
 of assurance. That Act has been repealed (subject to 
 a saving clause) by sect. 22 of the Married Women's 
 Property Act, 1882 (45 & 46 Vict. c. 75), and the 
 effect of this repeal is to take from the Chancery Divi- 
 sion a department of business which would have other- 
 wise devolved upon it under sect. 34 of the Judicature 
 Act, 1873. Sect. 17 of the Act of 1882 expressly en- 
 ables any judge of the High Court of Justice to deter- 
 mine all questions between husband and wife as to the 
 title to or possession of property. Except, indeed, so 
 far as the provision in sect. 11, that trustees of policy 
 moneys may be appointed by any Court having juris- 
 diction under the provisions of the Trustee Act, 1850, 
 or the Acts amending or extending the same (as to the 
 practice under which see In re Soutar's Policy Trust, 
 26 Ch. D. 236), may be taken to give the Chancery Di- 
 vision something in the nature of a peculiar jurisdic- 
 tion; anything in the nature of a special assignment of 
 business to either division of the High Court is con- 
 spicuous by its absence. 
 
 The following are the principal sections of the Mar- 
 ried Women's Property Act, 1882, with notes on the 
 more important points which have been made the sub- 
 ject of judicial interpretation. 
 
 Section 1. (1.) A married woman shall, in accord- 
 ance with the provisions of this Act, be capable of ac- 
 quiring, holding, and disposing by will or otherwise, of 
 any real or personal property as her separate property, 
 in the same manner, as if she were a feme sole, without 
 the intervention of any trustee. 
 
 (2.) A married woman shall be capable of entering 
 into and rendering herself liable in respect of and to 
 the extent of her separate property on any contract, 
 and of suing and being sued, either in contract or in 
 
M-ARRIED WOMEN'S PROPERTY ACT, 1822. - 239 
 
 tort, or otherwise, in all respects as if she were a feme 
 
 sole, and her husband need not be joined with her as 
 
 plaintiff or defendant, or be made a party to any action 
 
 or other legal proceeding brought by or taken against 
 
 her; and any damages or costs recovered -^-by her in [ -X- 145] 
 
 any such action or proceeding shall be her separate 
 
 property; and any damages or costs recovered against 
 
 her in any such action or proceeding shall be payable 
 
 out of her separate property, and not otherwise. 
 
 (3. ) Every contract entered into by a married woman Contract of 
 shall be deemed to be a contract entered into by her married 
 with respect to and to bind her separate property, un- woman, 
 less the contrary be shewn. 
 
 (4. ) Every contract entered into by a married woman 
 with respect to and to bind her separate property shall 
 bind not only the separate property which she is pos- 
 sessed of or entitled to at the date of the contract 
 but also all separate property which she may thereafter 
 acquire. 
 
 (5. ) Every married woman carrying on a trade sepa- -Married 
 rately from her husband shall, in respect of her sepa- woman 
 rate property, be subject to the bankruptcy laws in the carrying on 
 same way as if she were a feme sole. trade. 
 
 This section, in the case of a woman married before Not retro- 
 the commencement of the Act, only applies to property spective. 
 acquired after 1st January, 1883: In re Harris' Settled 
 Estates (28 Ch. D. 171), where this question arose as to 
 the necessity of a separate examination under sect. 50 
 of the Settled Estates Act, 1877 ; and see Riddle v. Er- 
 rington (26 Ch. D. 2 '20), where it was held under the 
 same section that no separate examination was neces- 
 sary as the marriage was after 1st January, 1883. 
 
 It was held in In re Price, Stafford v. Stafford (28 Will of a 
 Ch. D. 709) (following Willock v. Noble, L. E. 7 H. L. married 
 580), that sect. 1, sub-sect. 1, enables a married woman madufduring 
 to dispose by will only of property of which she is seised coverture, 
 or possessed during coverture, and as a consequence a 
 will made by a married woman during coverture must 
 be re-executed after she becomes discovert, in order to 
 render it effectual to dispose of property acquired after 
 the coverture has come to an end ; and see In re Young, 
 Trye v. Sullivan (28 Ch. D. 705), where it was held 
 that balances of accounts and investments kept in the 
 joint names of husband and wife survived to the wife 
 on her husband's death, but did not pass under a will 
 she had executed during coverture. A contract by a 
 married woman entered into since the commencement 
 of the Act binds the separate property that she has at 
 
240 
 
 MARRIED WOMEN'S PROPERTY ACT, 1882. 
 
 Gift to 
 husband, 
 wife, and a 
 third party. 
 
 [*146] 
 
 Torts 
 against a 
 married 
 woman. 
 
 Money lent 
 by husband 
 to wife. 
 
 the time of making the contract, but sect. 1, sub-sect. 
 4, does not. enable a married woman to bind by contract 
 any separate property which she may possibly acquire 
 in the future: In re Shakespear, Deakin v. Lakin (30 
 Ch. D. 169). 
 
 A married woman has a right to sue alone in respect 
 of a tort committed before the commencement of the 
 Act: Weldon v. Winslow (13 Q. B. Div. 784). A 
 married woman may petition alone: In re Outwin (31 
 W. E. 374). 
 
 In In re March, Mander v. Harris (27 Ch. Div. 166), 
 a testatrix who died after 1st January, 1883, by her will 
 executed before that date, gave her property to C. J. M. 
 and J. H., and E. his wife, "to and for their own use 
 and benefit." It was held by the Court of Appeal that 
 the will must be construed in accordance with the old 
 law, and that C. J. M. took one moiety, J. H. took a 
 quarter, and E. H. his wife took -^ the other quarter 
 for her separate use. "In my opinion," said Cotton, 
 L. J., "the Act was not intended to alter any rights ex- 
 cepting those of the husband and wife inter se. What 
 the effect will be when words similar to these occur in 
 a will made after the Act came into operation, I do not 
 say." 
 
 It was held in Conolan v. Leyland (27 Ch. D. 632) 
 that sub-sects. 3 and 4 have no retrospective operation, 
 but an order made by consent after 1st January, 1883, 
 referring to arbitration a dispute in respect of a con- 
 tract made before that date, was held to be an agree- 
 ment binding a married woman's separate property 
 which she had at or after the date of such agreement; 
 and see Turnbull v. Forman (15 Q. B. Div. 234), where 
 the previous decisions of Pike v. Fitzgibbon (17 Ch. 
 Div. 544), Bursil v. Tanner (13 Q. B. D. 691), Weldon 
 v. Winslow, and Conolan v. Leyland are considered. 
 
 As to torts committed against a married woman, see 
 Weldon v. Neal (32 W. B. 828) and Weldon v. De Bathe 
 (14 Q. B. Div. 339, 345), in which it was held, that 
 where a house had been acquired by a married woman 
 since the Married Women's Property Act, 1870, out of 
 her own earnings and was her own sole occupation, she 
 was entitled to sue alone in an action for trespass a per- 
 son who entered against her will, and though author- 
 ized by her husband was not doing anything incident 
 to or connected with a desire of the husband to live 
 there with his wife. 
 
 It was held in Butler v. Butler (16 Q. B. Div. 372) 
 that a husband can now maintain an action against his 
 
MARRIED WOMEN'S PROPERTY ACT, 1882. 241 
 
 wife and charge her separate estate with money lent by 
 him to her after marrirge, and for money paid by him 
 for her after marriage at her request, whether made 
 before or after marriage. See as to covenants to settle Covenant 
 after- acquired property, Williams v. Mercier (lOApp. to settle 
 Cas. 1), Inre Garnett, Robinson v. Gandy (33 Ch. Div. after : 
 300) ; and as to restraint on anticipation, In re Dixon, property 
 Dixon v. Smith (35 Ch. Div. 4), where Pike v. Fitz- 
 gibbon (ubi supra) was distinguished, and Draycott v. 
 Harrison (17 Q. B. D. 147), where it was held that an 
 order for committal under the Debtors Act, 1869, could 
 not be made. An interesting question has been raised Bankruptcy 
 whether the effect of sub-sect. 2 is to render a married of married 
 woman, in cases other than that mentioned in sub- sect. woman - 
 5, liable to bankruptcy, see the note in Wolstenholme and 
 Turner's Conveyancing Act, 4th ed. p. 156. It is sub- 
 mitted, however, as suggested by the present author 
 (Bankruptcy Act, 1883, p. 72), that if any such change 
 had been contemplated by the Legislature it would have 
 been embodied in express and definite language, and 
 that in the absence of any such provision the general 
 status of married women in respect of the law of bank- 
 ruptcy must be regarded as unaltered. The express 
 provision that a married woman may be made a bank- 
 rupt if trading apart from her husband, would seem to 
 imply, on the principle expressio unius exclusio alterius, 
 that she is, except under these peculiar circumstances, 
 not subject to the bankruptcy law. The words used by 
 Lord Cairns in Ex parte Holland, In re Heneage (L. 
 K. 9. Ch. 310), would seem with slight alteration to be 
 applicable to the present subject. 
 
 -^•"Itmay bethattheLegislaturemay have overlooked r ^ 147] 
 this result. It may be that to be logically consistent it 
 ought to have gone on to provide some way by process 
 of bankruptcy, or some process analogous to bank- 
 ruptcy, to reach her separate property and make an 
 equitable division of it. But has it done so? In my 
 opinion it has not done so by an express provision, and 
 it would be straining the words,which have a technical 
 meaning, to extend them so as to bring married women 
 under the law of bankruptcy, an antecedent law to 
 which before this Act they were not liable ;" and see 
 Ex parte Jones, Inre Grissell (12 Ch. Div. 484), under 
 the Bankruptcy Act, 1869, and the Married Women's 
 Property Act, 1870, where the point was decided in the 
 negative, though the married woman had separate es- 
 tate and had contracted engagements after marriage. 
 A great change in the law is introduced by section 2, 
 
 16 MODEKN EQUITY. 
 
242 
 
 MARRIED WOMEN'S PROPERTY ACT, 1882. 
 
 Property of a 
 woman 
 married after 
 the Act to be 
 held by her 
 as a, feme 
 sole. 
 
 Loans by 
 wife to 
 husband. 
 
 Execution of 
 
 general 
 
 power. 
 
 Sects. 6, 7, 
 8,9. 
 
 Sect. 10. 
 Sect. 11. 
 
 [*148] 
 
 Policies of 
 insurance. 
 
 which provides that every woman who marries after the 
 commencement of this Act shall be entitled to have and 
 to hold as her separate property and to dispose of in 
 manner aforesaid all real and personal property which 
 shall belong to her at the time of marriage, or shall be 
 acquired by or devolve upon her after marriage, includ- 
 ing any wages, earnings, money, and property gained 
 or acquired by her in any employment, trade, or occu- 
 pation, in which she is engaged, or which she carries 
 on separately from her husband, or by the exercise of 
 any literary, artistic, or scientific skill. 
 
 Sect. 3. Any money or other estate of the wife lent 
 or entrusted by her to her husband for the purpose of 
 any trade or business carried on by him, or otherwise, 
 shall be treated as assets of her husband's estate in case 
 of his bankruptcy, under reservation of the wife's claim 
 to a dividend as a creditor for the amount or value of 
 such money or other estate after, but not before, all 
 claims of the other creditors of the husband for valu- 
 able consideration in money or money's worth have been 
 satisfied. It was held in In re Tuff, Ex parte Notting- 
 ham (W. N. 1887, p. 80), that this sect, only applies 
 where the husband is a sole trader, and accordingly 
 where a married woman lent her own money to a trad- 
 ing partnership of which her husband was a member, 
 she was entitled on the bankruptcy of the partnership , 
 to prove against the joint estate in competition with 
 other creditors. 
 
 Sect. 4 provides that the execution of a general power 
 by will by a married woman shall have the effect of 
 making the property appointed liable for her debts and 
 other liabilities in the same manner as her separate es- 
 tate is made liable under this Act. See as to the pre- 
 vious law Vaughan v. Vanderstegan (2 Drew. 363), 
 where the appointed property was held liable on the 
 ground of fraud; the London Chartered Bank of Aus- 
 tralia v. Lempriere (L. R. 4 P. C. C 572), In re Harvey's 
 Estate, Godfrey v. Harben (13 Ch. D. 216), Hodges v. 
 Hodges (20 Ch. D. 749). Sections 6, 7, 8, 9 makes 
 provision with regard to stock, etc. to while a married 
 woman is entitled or which is transferred to her, joint 
 investments and stock in names of married women and 
 others, while sect. 10 makes provision against fraudulent 
 investments with the money of the husband. Sect. 1 1 deals 
 with the -fa subject of policies of insurance. See as to 
 this In re Adam's Policy Trusts (23 Ch. D. 525), where 
 it is stated that this Act practically leaves matters in 
 the same position as they were in under the Act of 1870. 
 
MARRIED WOMEN'S PROPERTY -ACT, 1882. 243 
 
 Sect. 18, to be read along with sect. 24, which frees Married 
 the husband from all liability " unless he has acted or "woman as an 
 intermeddled in the trusts or administration " provides ex ecutnx or 
 that a married woman who is an executrix or adminis- ras ee ' 
 tratrix alone or jointly with any other person or per- 
 sons of the estate of any deceased person, or a trustee 
 alone or jointly as aforesaid of property subject to any 
 trust, may sue or be sued, and may transfer or join in 
 transferring any such annuity or deposit as aforesaid, 
 or any sum forming part of the public stocks or funds, 
 or of any other stocks or funds transferable as afore- 
 said, or any share, stock, debenture, debenture stock, or 
 other benefit, right, claim, or other interest of or in any 
 such corporation, company, public body, or society in 
 that character, without her husband, as if she were a 
 feme sole. In the very recent case of In re Hawksworth 
 (W. N. 1887, p. 113), the Paymaster-General declined 
 to part with the fund belonging to a married woman 
 without the receipt of the husband, and the Court 
 added to the order the words " on her separate re- 
 ceipt." 
 
 Sect. 19 provides that nothing in this Act contained Saving of 
 shall interfere with or affect any settlement or agree- existing 
 ment for a settlement made or to be made, whether be- ^^the* 11 * 8 
 fore or after marriage, respecting the property of any power to 
 married woman, or shall interfere with or render inop- make future' 
 erative any restriction against anticipation at present settlements, 
 attached or to be hereafter attached to the enjoyment 
 of any property or income by a woman under any set- 
 tlement, agreement for a settlement, will, or other in- 
 strument; but no restriction against anticipation con- 
 tained in any settlement or agreement for a settlement 
 of a woman's own property to be made or entered into 
 by herself shall have any validity against debts con- 
 tracted by her before marriage, and no settlement or 
 agreement for a settlement shall have any greater force 
 or validity against creditors of 'such woman than a like 
 settlement or agreement for a settlement made or en- 
 tered into by a man would have against his creditors. 
 
 In In re Whitaker, Christian v. Whitaker (34 Ch. D. Covenant to 
 227), a married woman became entitled on the death of sett]l r a ^ er " 
 her father in 1884 to a share of personalty not limited p r0 p er t y . 
 to her separate use, and the question was whether this 
 was bound by a covenant to settle after- acquired prop- 
 erty contained in her ante-nuptial settlement made in 
 1873. It was held that under sects. 5 and 19 of the 
 Married Women's Property Act, 1882, the property was 
 bound by the covenant. The following reasons were 
 
244 THE SETTLED LAND ACTS. 
 
 given by the Court of Appeal for its decision: "There 
 is no controversy at all that if we decide the question 
 apart from this Act of Parliament of 1882, the property 
 "would be bound by the covenant to settle. That is un- 
 arguable; it is plain. Now what does the Act say? 
 Sect. 19 says that nothing in this Act shall interfere 
 with or affect any settlement made before marriage or 
 [ ^- 149] to be made after marriage, -^r What does that mean? 
 It means that you cannot by this Act affect the rights 
 of the parties under the settlement. The property is 
 bound by the covenant as if the Act had never passed." 
 And see further as to this section In re Stonor's Trusts 
 (24 Ch. D. 195) InreQueade's Trusts (33 W. E. 816). 
 
 The Settled Land Acts. 
 
 In re JONES. 
 (26 Ch. Div. 736.) 
 
 Principle. The person entitled to receive the income of 
 
 settled land is tenant for life within the mean- 
 ing of the Settled Land Act, 1882, though he de- 
 rives no income from the estate. 
 
 Summary of Colonel Grey was entitled to the surplus income 
 facts. f se t,tled land after payment of the interest on in- 
 
 cunrbrances and an annuity. The rents, after pay- 
 ment of the interest, were insufficient to pay the 
 annuity, and there was no probability that there 
 would be any income for Colonel Grey to receive 
 for many years to come. Held, by the Court of 
 Appeal (affirming the decision of Bacon, V. C), 
 that Colonel Grey was entitled to exercise the Dow- 
 ers of a tenant for life. 
 
 This case has been selected as affording a good illus- 
 tration of the sweeping changes effected by the Settled 
 Land Act, 1882, which came into operation on the 1st of 
 January, 1883. The Court was here compelled by the 
 wording of the Act to give judicial sanction to " the start- 
 
Act, 1882. 
 
 THE SETTLED LAND ACTS. 245 
 
 ling paradox," as Lord Justice Lindley termed it, " that a 
 man could be entitled to income of land, though there 
 was no income for him to receive"; nay, more, when 
 there was no chance of his receiving any income for a 
 considerable time. "You must,'' said the Court of Ap- 
 peal, " look at the terms of the settlement to see what 
 the person is entitled to, and not to the accidental cir- 
 cumstance -fa that the intention of the testator has [ -^ 150] 
 been to some extent defeated by reason of the income 
 which he intended the party to take not being actually 
 realised in consequence of the state of the property." 
 
 The Act has no preamble to afford a guide to the in- Scope and 
 tention of the legislature, and it is therefore all impor- purpose of 
 tant in construing it to bear steadily in mind its general Settled ■ Lg n & 
 scope and purpose. " This," said Lord Selborne in In' " 
 re HazeVs Settled Estates (29 Ch. Div. 83), " is a statute 
 which ought to be expounded in furtherance and not in 
 derogation of the important objects of public policy for 
 which it was passed." The general object of the Set- 
 tled Land Act, as was said, in Cardigan v. Curzon-Howe 
 (30 Ch. D. 536) ; In re Clitheroe Estates (28 Ch. D. 378), 
 (affirmed 31 Ch. Div. 135) "was to confer upon the 
 present generation of landowners the means of aliena- 
 tion which they had become deprived of in the process 
 of time by the ingenuity of conveyancers, and to enable 
 tenants for life of settled land to sell, partition, lease 
 and otherwise dispose of settled land freed from the 
 restrictions which by the general law previously exist- 
 ing, and by the numerous statutes applicable to the 
 subject, had up to the time of passing the Act prevent- 
 ed tenants for life from so dealing with settled land." 
 " The object of the Act," said the late Mr. Justice Pear- 
 son, who had more to do with construing it than any 
 other of our judges, " was to grant a tenant for life very 
 large powers for his own benefit, and to take settled 
 land out of settlement, and to substitute for it ex mero 
 motu for any purpose whatever, even for mere caprice, 
 the value of it in pounds, shillings and pence " : Wheel- 
 wright v. Walker (23 Ch. D. 752) ; In re Duke of New- 
 castle's Estate (24 Ch. D. 137); In re Chaytor's Settled 
 Estate Act (25 Ch. D. 654). The object of the Act is 
 to create powers of sale in many cases in which pre- 
 viously no powers of sale existed, and to give additional 
 powers in other cases where there were limited powers 
 under existing settlements, per Baggallay, L.J., In re 
 Jones (26 Ch. Div. 738). 
 
 A point which it is important to bear in mind in 
 reading the Settled Land Act is that several terms of 
 
246 
 
 THE SETTLED LAND ACTS. 
 
 Settlement. 
 
 Estate or 
 interest. 
 
 (•151] 
 Land. 
 
 Tenant for 
 life. 
 
 constant occurrence in it have, by reason of the defini- 
 tions contained in the Act itself (sect. 2), and the de- 
 cisions bearing upon them, a very special meaning, and 
 contain a great deal more than is comprehended in 
 their usual significance. 
 
 The definition of the term " settlement " in sect. 2, 
 sub-sect. 1, is expressly retrospective, and includes, in 
 addition to deeds, wills and agreements for settlement, 
 all the various instruments .there ' enumerated, or any 
 number of instruments by which any land or estate, or 
 interest in land, is limited to or in trust for any person 
 by way of succession. " Settled land " is defined by 
 sub-sects. 2 and 3 of sect. 2. 
 
 An estate or interest in remainder or reversion not 
 disposed of by a settlement, and reverting to the settlor 
 or descending to the testator's heir, is for purposes of 
 this Act an estate or interest coming to the settlor o 
 heir under or by virtue of the settlement, and compris- 
 ed in the subject of the settlement. 
 
 ■fa Land, and any estate or interest therein, which is the 
 subject of a settlement, is, for the purposes of this Act, 
 settled land, and is, in relation to the settlement, re- 
 ferred to in this Act as the settled land, and in sub- 
 sect. 4, the question whether land is " settled land " is 
 to be determined by the state of facts, &c, when the set- 
 tlement takes effect. " Land " includes leases for years, 
 remainders, reversions, rent-charges, advowsons, and 
 even mortgage debts : Grey v. Jenkins (26 Beav. 351); 
 but it should be observed that the greater number of 
 the provisions of the Act are applicable only to cor- 
 poreal hereditaments : Clerk's Settled Land Act, p. 4. 
 It was decided in the case of Sir J. Rivitt Carnac's Will 
 (30 Ch. D. 131) that land also included titles of honor ; 
 and it would also doubtless be held to include New River 
 shares, River Avon shares, River Don shares, and shares 
 of tolls in lighthouses : Attorney- General v. Jones (1 
 Mac&G. 574). The term "tenant for life" has an 
 even more elastic meaning. 
 
 Sect. 2 (sub-sect. 5) defines " tenant for life " to mean 
 the person who is for the time being beneficially en- 
 titled to possession of settled land for life, and sub- 
 sect. 6 provides for the case of joint tenants and ten- 
 ants in common. 
 
 In addition to this, sect. 58 of the Act enumerates 
 no less than nine other limited owners who, when their 
 estate and interest is in possession, are to possess the 
 powers of sale and leasing, &c, which are given by the 
 other clauses of the Act to the tenant for life. 
 
THE SETTLED, LAND ACTS. 247 
 
 Sect. 59 makes an infant absolutely entitled in pos- infant, 
 session to settled land, a tenant for life. 
 
 Sect. 60 provides that if any person, who is a tenant 
 for life tinder the Act, be an infant, the powers of the 
 tenant for life are to be exercised by the trustees of set- 
 tlement, or the person nominated by the Court. A 
 married woman entitled to property for her separate Married 
 use is by sect. 61 entitled to act as a tenant for life. woman. 
 
 Sect. 62 provides for the case of the tenant for life Lunatic, 
 being a lunatic. 
 
 Sect. 8 of the Settled Land Act, 1884 (47 & 48 Vict. Tenant by 
 c. 18), provides that the estate of the tenant by the curtesy. 
 curtesy (see sect. 58 of the Settled Land Act, 1882) is 
 to be deemed an estate arising out of a settlement made 
 by his wife. 
 
 The statutory powers of the tenant for life are most Powers of 
 carefully guarded by sects. 50, 51, 52. They are in- tenant for 
 capable of assignment, release, or forfeiture, and any life - 
 contract not to exercise any of them, or any prohibition 
 or limitation of their exercise is to be treated as void. 
 They are moreover "cumulative," i.e. additional to any 
 powers conferred by a settlement, and in case of con- 
 flict with such powers the statutory powers are to pre- 
 vail (sects. 56 and 57). 
 
 Those all-important personages — the " trustees of the Trustees of 
 settlement," are denned by sect. 2, sub sect. 8, as, "the the settle- 
 persons, if any, who are for the time being, under a ment - 
 settlement, trustees with power of sale of settled land, 
 or with power of consent to or approval of the exer- 
 cise of such a power of sale, or if under a settlement 
 there are no such trustees, then the persons, if any, for 
 the time being, who are by the settlement -fa declared [ ■^ 152] 
 to be trustees thereof for purposes of this Act, are, 
 for purposes of this Act, trustees of the settlement." 
 
 All "capital money" must be paid either to thetrus- Capital 
 tees of the settlement or into Court (sect. 22), and if money. 
 there are no trustees of settlement within the defini- 
 tion of the Act, nothing can be done by the tenant for 
 life in exercise of the powers mentioned in sect. 45, 
 until such trustees are appointed, as notice must first Notice to 
 be given to them, Wheelwright v. Walker (23 Ch. D. trustees. 
 752), and sect. 5 of the Settled Land Act, 1884 (47 & 
 48 Vict. c. 18), provides by way of legislative reversal 
 of the decision in Ray's Settled Estates (25 Ch. D. 464), 
 that notice of a general intention to. make a sale, ex- 
 change, partition or lease shall be sufficient, and enables 
 the trustee to waive the notice or to except less than one 
 month's notice. 
 
248 THE SETTLED LAND ACTS. 
 
 Applica- One of the main objects of the Act is to preclude the 
 
 tion to the necessity of the application of the Court. It is still, 
 Co . however, imperative in some cases to apply to the Court, 
 
 while in other cases there is an option of dealing with 
 
 the trustees or going to the Court. 
 
 The cases under which it is imperative to apply to 
 
 the Court are as follows : 
 
 1. Sect. 10. To authorize the variation of building 
 or mining lease, according to the circumstances. 
 
 2. Sect. 31 (3). To obtain directions as to enforc- 
 ing, carrying into effect, varying and rescinding con- 
 tracts. 
 
 3. Sect. 36. To approve of proceedings for protec- 
 tion or recovery of land settled or claimed to be settled, 
 and give directions as to costs, &c. 
 
 4. Sect. 37 (3). For sale or purchase of heirlooms. 
 
 5. Sect. 38. Appointment of trustee under the settle- 
 ment for the purposes of the Act. See In re Wilcock 
 (34 Ch. D. 508). 
 
 6. Sect. 44. As to the difference between tenant for 
 life, and trustee of the settlement respecting exercise 
 of powers of Act, &c. 
 
 7. Sect. 56. As to questions or doubts under this 
 section. 
 
 8. Sect. 60. Where tenant for life, &c, is an infant, 
 and there are no trustees of the settlement, " trustees 
 of the settlement" under this section include trustees 
 appointed by the Court under sect. 38 : In re Countess of 
 Dudley and London and North Western Railway Com- 
 pany (35 Ch. D. 338). 
 
 9. Sect. 7 of the Settled Land Act, 1884, as to exer- 
 cise of powers given by sect. 63 of the Settled Land 
 Act, 1882. 
 
 By sect. 46 (sub-sect. 6), and sect. 47, the Court has 
 a general power to make such order as it thinks fit, and 
 to give directions as to raising and paying costs, charges 
 and expenses, both where they are payable out of cor- 
 pus and where they are thrown upon the tenant for life. 
 Option of The cases in which, under the Settled Land Act, there 
 
 dealing with j 8 the option of dealing with the trustees of the settle- 
 or 6 'oin?to S ment ' or g oin g to tlle Court are as follows : 
 the Court. 1- Sect. 15. As to the sale or lease of principal 
 
 mansion-house, demense, &c. 
 
 2. Sect. 22. As to payment of "capital money arising 
 I X I0£i J under the ~fc Act," in order to its being invested or ap- 
 plied. See Cookes v. Cookes (34 Ch. D. 498). 
 
 3. Sect. 26. As to approval of scheme for the im- 
 provement and expenditure of capital money thereon. 
 
THE SETTLED LAUD ACTS. 219 
 
 4 Sect. 34. As to application of money paid for lease, 
 &c, or reversion, and note that all decisions on sect. 74 
 of the Lands Clauses Consolidation Act, are applicable 
 to this section: Cottrell v. Cottrell (28 Ch. D. 628). 
 
 5. Sect. 35. As to cutting and Bale of timber. 
 
 With regard to the practice under the Settled Land Practice 
 Act, 1882, sect. 46, sub-sect. 1, provides that all mat- under the 
 ters within the jurisdiction of the Court under the Act, Settled Land 
 shall, " subject to the Acts regulating the Court," be Act ' 1882 ' 
 assigned to the Chancery Division, and sub-sect. 3 of 
 the same section declares that every application to the 
 Court shall be by petition or by summons at chambers; 
 but now the rules under the Settled Land Act, 1882 (r. 
 2), provide that all applications to the Court, under the 
 Act, may be made by summons in chambers, and if in 
 any case a petition shall be presented without the direc- 
 tion of the Judge, no further costs shall be allowed 
 than would be allowed upon a summons. It was held, , 
 however, in In re Bethlehem and Bridewell Hospitals 
 (30 Ch. D. 541), that the Court has a discretion to 
 allow the costs of a petition when such a mode of pro- 
 cedure is cheaper and more expeditious, but that the 
 choice of procedure is at the risk of the applicant. It 
 may be well to point out that although the Settled Land 
 Acts, 1882 & 1884, now hold the field, and the provi- 
 sions of the Settled Estates Act, 1887 (40 & 41 Vict. c. 
 18), are almost wholly superseded by them, the only 
 section of the old Act which is actually repealed by 
 sect. 64 of the Settled Land Act is sect. 17. 
 
 Sect. 3 of the Settled Estates Act, 1877, provides that Settled Estates 
 all causes and matters commenced or continued under Act, 1877. 
 this Act, shall, subject to the provisions of the Judica- 
 ture Act, be assigned to the Chancery Division, and it 
 may still occasionally be desirable to have recourse to 
 its provisions, as in the recent case of FarnelVs Settled 
 Estates (33 Ch. D. 599; 35 W.B. 250), and see Clerke's 
 Settled. Land Act, p. 18, where several cases are men- 
 tioned where it may be desirable or expedient to adopt 
 the machinery of the Settled Estates Act. The notice 
 which was issued by the practice Masters on the 31st 
 June, 1884, provides that all summonses under the 
 Settled Land Act, 1882, shall be entitled as directed by 
 the rules under that Act, but shall be in other respects 
 in the form prescribed by the Rules of the Supreme 
 Court, 1883. All proceedings under the Act in County 
 Courts must be commenced by petition. — County Court 
 Rules, 1886 (O. lxxvii.) 
 
250 
 
 THE SETTLED LAND ACTS. 
 
 Investment 
 of capital 
 moneys. 
 
 Authorized 
 improve- 
 ments. 
 
 [ * 154] 
 
 Cases de- 
 cided under 
 the Act. 
 
 The investment or other application of capital money 
 arising under the Act, is dealt with by sections 21 et seq. 
 
 By sect. 22, sub-sect. 5, the capital money while re- 
 maining uninvested and after investment is to be con- 
 sidered as land. 
 
 The " authorized improvements " are enumerated in 
 sect. 25. 
 
 By sect. 26 (the marginal note of which is strangely 
 misleading) the -fc tenant for life, when he is desirous 
 that capital money should be applied in " authorized 
 improvements," is to submit a scheme for the approval 
 of the trustees of the settlement, or of the Court. 
 
 The effect of these sections was considered in In re 
 Hotchkin's Settled Estates (35 Ch. Div. 41), where it 
 was held that the scheme must be submitted before the 
 works were commenced. 
 
 AVhere in a settlement the trustees had power to pay 
 for improvements out of income, a tenant for life was 
 nevertheless held entitled under the Settled Land Act 
 to require capital money to be laid out under a proper 
 scheme, in improvements: Clarke v. Thornton (35 Ch. 
 D. 307). 
 
 The following cases in addition to those already 
 noticed, have been decided on points arising under the 
 Settled Land Act, 1882:— 
 
 Capital 
 money. 
 
 Capital money— 
 
 Application of, to discharge of incumbrances affect- 
 ing part of the estate: In re Chapter's Settled Es- 
 tate Act (25 Ch. D. 651), and see Re Esdaile, Es- 
 daile v. Esdaile (54 L. T. 637). 
 
 Not applicable to payment of charges payable by in- 
 stalments created by the tenant for life under the 
 Improvement of Land Act, 1864, and other Acts 
 prior to the Settled Land Act, 1882 : In re Knatch- 
 bulVs Settled Estate (29 Ch. Div. 588). 
 
 Not applicable to erection of " Silos," where they are 
 experimental and not certainly improvements: In 
 re Broadwater Estate (33 W. B. 738). 
 
 Practice. Semble trustees should appear separately 
 from tenant for life on application for payment of 
 capital money for improvements under sect. 21. 
 
 Liverpool 3| per cent. Corporation Stock, in the ab- 
 sence of evidence as to its condition, held not to be 
 an authorized investment of : InreMaberly, Maber- 
 ly v. Maberly (34 W. E. 771). 
 
THE SETTLED LAND ACTS. 251 
 
 Costs. Costs. 
 
 Proceedings successfully prosecuted to establish a 
 claim to an earldom, in consequence of which es- 
 tates were recoved, held to be " proceedings taken 
 for the protection of settled land," of which the 
 costs were payable out of the settled estate: In re 
 Earl of Aylesford's Settled Estates (32 Ch. D. 162). 
 
 Heirlooms — Heirlooms. 
 
 Sale of, ordered, with liberty for tenant for life to 
 bid: In re Broum's Will (27 Ch. D. 179). 
 
 Order for sale of, where settled so as to devolve with 
 a title. or dignity: In re Sir J. Bivett-Carnac's Will 
 (30 Ch. D. 136). 
 
 Application of proceeds of sale of, to discharge of in- 
 cumbrances: In re Duke of Marlborough's Settle- 
 ment (30 Ch. D. 127, 32 Ch. Div. 1) ;— in improve- 
 ments: In re Houghton Estate (30 Ch. D. 102). 
 
 Trustee of settlement with power of sale is trustee 
 for the purposes of the Act, including the sale of 
 heirlooms: Constable v. Constable (32 Ch. D. 233). 
 
 ■fa Mansion-house — [ *fc 155] 
 
 Where tbe tenant for life has mortgaged his interest Mansion- 
 to its full value, and the trustees of the settlement nouse - 
 do not consent, the Court will not order a sale on 
 his application, without full information and the 
 consent of the mortgagees : In re Sebright' s Settled 
 Estates (33 Ch. Div. 429). 
 
 Tenant for Life — Tenant for 
 
 Tenant for years determinable on life, held not to be : 
 In re Hazle's Settled Estates (25 Ch. D. 654). 
 
 Held to possess a power of sale under the Act over and 
 above that which was conferred on the trustees by 
 a private Act : In re Chaytor's Settled Estate Act 
 25 Cb. D. 651). 
 
 Order for sale under Settled Estates Act, 1877 (un- 
 less stayed — as semble it may be — by the Court), 
 prevents power of sale by : In re Barrs-Haden's 
 Settled Estates (49 L. T. '661). Similarly as to 
 order giving powers of leasing under Settled Es- 
 tates Act, 1877 : In re Poole's Settled Estates (32 
 W. E. 956). 
 
 Lunatic, committee of, cannot give valid notice un- 
 less he has obtained previous authority from the 
 Court of Lunacy : In re Ray's Settled Estates (25 
 Ch. D. 464). (Vide supra, p. 152, as to another 
 point decided in this case.) 
 
 life. 
 
252 THE SETTLED LAND ACTS. 
 
 Of conditional life estate, held to possess power of 
 sale and to be entitled to income of proceeds : In 
 re Paget s Settled Estates (30 Ch. D. 161') ; and 
 see In re Hale and Clark (34 W. R 624). 
 
 Life estate, subject to a term of years, vested in 
 trustees for accumulation and payment of charges, 
 held (following the leading case of In re Jones, 
 ubi supra) to confer power of a tenant for life 
 within the meaning of sect. 58 : In re Clitheroe's 
 Estate (31 Ch. Div. 135) ; but where a person who 
 took certain interests as tenant for life had no es- 
 tate or interest in possession until the determina- 
 tion of a term, he was held during its continuance 
 not to have the powers of a tenant for life : In re 
 Strangways, Hickley v. Strangways (34 Ch. Div. 
 423). 
 
 Trust to apply rents for benefit of A. and for his 
 wife and children, does not constitute A. or A. and 
 wife tenant for life : In re Atkinson, Atkinson v. 
 Bruce (31 Ch. Div. 577). 
 
 Sale of copyholds by, where trustees have not been 
 admitted, only one fine payable: In re Naylor and 
 Spendla's Contract (34 Ch. D. 423). 
 
 Notice to trustees by, more than a month before day 
 fixed for completion, held sufficient : Duke of Marl- 
 borough v. Sartoris (32 Ch. D. 616). 
 
 Where settled land was taken by a railway company 
 subject to beneficial leases and the money paid into 
 Court, tenant for life, who was in receipt of the 
 rents from the leaseholds, held not entitled to in- 
 come of purchase money : In re Griffith's Will ("49 
 L. T. (N.S.) 161. 
 
 f -^ 156] -fa Trustees of Settlement — 
 
 Trustees of No necessity for appointment as trustees of settle- 
 ment had full powers : In re Garnett, Orme and 
 Hargrove's Contract (25 Ch. D. 595). 
 
 Appointment of : In re Wright's Trusts (25 Ch. D. 
 662 ; In re Harrop's Trusts (24 Ch. D. 717). 
 
 Authorized to sell property of infant cestuis que trust 
 out of Court : In re Price, Leighton v. Price (32 
 W. E. 1009). 
 
 Absolute trust for sale, concurrence of children con- 
 stituting tenant for life not required where : Tay- 
 lor v. Poncia (25 Ch. D. 646). 
 
 Trustee with power of sale with consent of others is 
 trustee for purposes of the Settled Land Act: 
 Constable v. Constable (32 Ch. D. 233). 
 
 settlement 
 
(253) 
 
 Right of Retainer by Executor or Administrator. 
 
 In re ROWNSON. FIELD v. 'WHITE. 
 (29 Ch. Div. 358.) 
 
 An executor or administrator cannot retain a Principle. 
 debt in respect of which, if vested in another 
 person, no action could be maintained? 
 
 An administratrix claimed to retain £500 and in- Summary of 
 terest on the ground that her father, who had died factSi 
 intestate, had made a verbal promise to her hus- 
 band in consideration of her marriage to give her 
 £500 as her portion, and that he had never fulfilled 
 his promise. 
 
 The Court of Appeal decided that the administra- 
 trix had no right of retainer. 
 
 In this case an attempt was made to very seriously 
 extend the doctrine of Retainer. The rule is thus laid 
 down in "Williams on Executors (8th ed. p. 1043) ; " As 
 an executor or administrator, among creditors of equal 
 degree, may pay one in preference to another, so it 
 ^■is another of his privileges that he has a right to retain r ^."1571 
 for his own debt due to him from the deceased in prefer- 
 ence to all other creditors of equal degree. 2 This remedy 
 arises from the mere operation of law on the ground 
 that it were absurd and incongruous that he should sue 
 himself, or that the same hand should at once pay and 
 receive the same debt." 3 The right of retainer has not 
 
 1 An executor or administrator has a right to pay one debt in 
 preference to another when they are in the same degree. Wil- 
 liamson, Exr. 1039. 
 
 The right of an executor or administrator to retain extends 
 to debts due to him jointly with others, or in the character of 
 trustee as well as to those due to him solely on his own right. 
 Harrisons. Henderson, 7 Heisk. (Tenn.)315; Williams v. Purdy, 
 6 Paige, 166; Stephens v. Harris, 6 Ired. Eq. 57; Enderst:. Brune, 
 4 Kand. 483. 
 
 2 The common law right of retainer has been established in 
 New York. Smith v. Kearney, 2 Barb. 533. 
 
 3 In the United States, preference among equal creditors is not 
 favoured, still less that of an executor or administrator's retainer 
 for his own debt. Henderson v. Ayers, 23 Texas, 96; Hubbard 
 r. Id., 16 Ind. 25; Smith v. Downey, 3 Ired. Eq. 268. 
 
254 RIGHT OF RETAINER 
 
 Hot altered been altered by Hinde Palmer's Act (32 & 33 Vict. c. 
 
 by 32 & 33 46), which abolishes the distinction between specialty 
 
 Vict. c. 46. an ^ simple contract debts in the administration of the 
 
 estate of every person dying on or after the 1st of 
 
 January, 1870: Wilson v. Coxwell (23 Ch. D. 964). 
 
 The general rule, said the Court of Appeal in the 
 leading case, with regard to the duty of an executor has 
 been laid down long ago. It is stated in Comyns' 
 Digest, that it is a devastavit if an executor or an ad- 
 ministrator pay that which need not be paid. But on 
 Exception as that general rule an exception has undoubtedly been 
 to Statute of engrafted in the case of a debt not enforceable by rea- 
 Limitations. son jj ^ e Statute of Limitations. " Since the time, at 
 all events, of Lord Hardwicke it has been said (with a 
 passing dissent on the part of an eminent common law 
 judge in McCulloch y. Dawes (9 D. & R. 40, 43), and 
 now it is established law both in Courts of Equity and 
 Law, that no executor is compellable to take advantage 
 of the Statute of Limitations against debts otherwise 
 justly owing. An executor may pay a statute-barred 
 debt if he thinks fit; he is not bound to plead the 
 statute and he is not guilty of a devastavit if he does 
 not plead it." 
 
 The Court of Appeal then considered the case before 
 them. There was no authority whatever, though the 
 case must have arisen thousands of times, for allowing 
 payment of a debt which was not enforceable by reason 
 of the Statute of Frauds. " There is to my mind," said 
 Bowen, L.J., "this difference also between a case un- 
 der the Statute of Limitations and a case under the 4th 
 sections of the Statute of Frauds. The Statute of Lim- 
 itations does not destroy the debt, but only the remedy, 
 and it has been held that an executor may waive that 
 defence in the case of a debt which existed and which 
 appears to be well founded. But a parol contract 
 within the Statute of Frauds, though not void to all 
 intents and purposes but capable of being dealt with 
 for certain purposes as a valid agreement, is incapable 
 nevertheless of being enforced in an action either di- 
 rectly or indirectly. And if you have a contract which 
 is not capable of being enforced either at law or in 
 equity, I fail to see that a contract of that sort creates 
 a debt or liability against the estate of a testator." 
 The Court accordingly came to the conclusion that the 
 anomaly, the single exception as to payment or re- 
 tainer of debts barred by the Statute of Limitations, 
 was not to be extended to a case where the Statute of 
 Frauds prevented the enforcement of the debt. 
 
BY EXECUTOR OR ADMINISTRATOR. 255 
 
 " The right of retainer, as it produces inequality, is Right of 
 never assisted." Hopton v. Dryden (Pre. Ch. 179; 2 retainer is 
 Eq. Cas. Abr. 450), cited in In re Jones, Calver v. n . evel " as " 
 Laxton (31 Ch. D. 447), where it was held with reluct- siste 
 ance, following the authorities of Richmond v. White 
 (12 Ch. D. * 361), and In re Birt, Birt v. Burt (22 [* 158] 
 Ch. D. 604), that the appointment of a receiver puts 
 an end to the right of retainer. 
 
 This principle was also recognised in In re Harrison, Principle of 
 Latimer v. Harrison (32 Ch. D. 395), where the executor retainer, 
 was, however, allowed priority in respect of assets which 
 he had received before the appointment of the receiver, 
 and handed over to him, but not in respect of a sum which 
 he had subsequently paid as surety for the testator. 
 
 The principle on which an executor's right of re- 
 tainer is based was discussed in the case of Talbot v. 
 Frere (9 Ch. D. 568). In that case, A. mortgaged 
 policies of insurance to B. and C, who were partners, 
 and then died insolvent, having appointed his wife his 
 executrix, who subsequently died, leaving B. her execu- 
 tor. B. and C. received the policy moneys, and after 
 paying their mortgage debt, &c, there was a surplus, 
 which they claimed to retain as against a judgment 
 creditor in satisfaction of a simple contract debt. 
 
 The right of retainer was claimed in two characters, 
 first because the parties were mortgagees in possession, 
 and were therefore entitled to retain the balance for 
 their simple contract debt; and, secondly, because one 
 of them was an executor of the mortgagor's estate. It 
 was held that they were not entitled to retain it in 
 either character. The principle, said Sir George Jes- 
 sel, is preference, not retainer. It could not be alleged, 
 if the testator lent his creditor a horse, that the cred- 
 itor could, after the testator's death, keep the horse un- 
 til the debt was paid; or, if the testator put bonds 
 which are payable to bearer in the creditor's hands for 
 safe custody only, the creditor not being a banker or a 
 person by law having a right of general lien, that he 
 could keep the bonds because he was a creditor. The 
 same principle would apply whether it was a bag of 
 sovereigns or a bond payable to bearer, or a horse. 4 
 
 4 In a few States the English doctrine of retainer still prevails. 
 Page v. Patton, 5 Peters, 303; U. S. Digest, 1st Series, Exr. and 
 Adm. 3011-3023; but the better American policy insists that 
 creditors of equal rank shall have the same opportunity. In 
 Missouri and New York the right of retainer has been abolished. 
 Treat v. Fortune, 2 Bradf. Sur. 116; Nelson v. Russell, 15 Mo. 
 356; and see Wright v. Id., 72 Ind. 149; Dana v. Prescott, 1 
 Mass. 200; Willey v. Thompson, 9 Met. 329. 
 
256 EIGHT OF RETAINER BY EXECUTOR OR ADMINISTRATOR. 
 
 Retainer not In Lee v. Nuttall (12 Ch. Div. 61) the question arose 
 affected by whether an executor's right of retainer was affected by 
 Judicature ^ e cnan g e i n the law made by the 10th section of the 
 sect 10 ' Judicature Act, 1875, which provides that in the ad- 
 ministration by the Court of the assets of any person 
 who may die after the commencement of the Act (2nd 
 of November, 1875), and whose estate may prove to be 
 insufficient for the payment in full of his debts and 
 liabilities (and also in the winding-up of insqlvent 
 companies), the same rules shall prevail as to the re- 
 spective rights of secured and unsecured creditors, and 
 as to debts and liabilities provable, and as to th9 valu- 
 ation of annuities and future and contingent liabilities 
 respectively as may be in force for the time being un- 
 der the Law of Bankruptcy, with respect to the estate 
 of persons adjudged bankrupt. (Note that now by 
 sect. 125 of the Bankrupcy Act, 1883, the estate may 
 be administered in bankruptcy). The Court of Appeal 
 in delivering judgment said: — " Under the law as it 
 stood before the Judicature Act, 1875, an executor had 
 a right to retain a debt due to himself as against all 
 creditors of equal degree out of all moneys coming to 
 his hands, and this right was not lost by his paying 
 them into Court. This right is not affected by the 
 [ -^ 159] Judicature Act, 1875, sect. 10, -^- relating to secured 
 and unsecured creditors. The Legislature never in- 
 tended to treat an executor having a right of retainer 
 as a secured creditor; if his right to retain was in the 
 nature of a security, he would have it as against cred- 
 itors of a higher degree, and could retain as against 
 everybody. The sole object of the section was to get 
 rid of the rule in Chancery under which a secured 
 creditor could prove for the full amount of his debt 
 and realise his security afterwards, and to put him on 
 the same footing as in bankruptcy, where he was only 
 entitled to prove for the balance after realising or valu- 
 ing his security. The section was never intended to 
 apply to retainer by an executor." 5 
 
 In Jones v. Evans (2 Ch. D. 420) a creditor had be- 
 queathed a debt which he had proved in an administra- 
 tion action, to the executrix of the estate, and it was 
 held that there was no right of retainer. 
 
 An heir or devisee, as he caunot be sued for simple 
 
 5 As to whether an executor or administrator who has a claim 
 
 against the estate is bound to present it within the time allowed 
 
 , other creditors, see Sanderson v. Id., 17 Fla. 820. He cannot sue 
 
 himself at law to recover a debt due him by decedent. Perkins 
 
 v. Ipsam, II E. I. 270. 
 
JUDGMENT IN MORTGAGE ACTIONS. 257 
 
 contract debts, has no right of retainer in respect of Heir or de- 
 them, though, sernble, when the estate is not charged v isee has' no 
 with debts he would be entitled to retain a debt to ri ? ht ot re ~ 
 which he is entitled by specialty in which the heirs are 
 bound : In re Illidge, Davidson v. Illidge (27 Ch. Div. 
 478). 
 
 It was held in In re Campbell (16 Ch. D. 198) that Not lost by 
 an executor's right of retainer is not lost by his com- commencing 
 mencing an administration action on behalf of himself administra- 
 and all other creditors and submitting to account in the 
 usual way. 
 
 An executor has no right of retainer against real es- No right of 
 tate, Walters v. Walters (18 Ch. D. 182), and his right retainer 
 of retainer is limited to assets coming into his posses- e f tate 
 sion or under his control, or paid into Court during his 
 lifetime, and this right so limited, if claimed by the ex- Right is 
 ecutor during his lifetime but not exercised, passes to llm i ted - 
 his representatives : In re Compton, Norton v. Compton 
 (30 Ch. D. 15), restricting Wilson v. Coxwell (23 Ch. 
 D. 764). The same case decided (following the author- 
 ity of Loane v. Casey (2 V. Bl. 965)) that the execu- 
 tor may retain in respect of damages for the breach of 
 a pecuniary contract for which there is a certain stand- 
 ard or measure. 
 
 The same principles would seem clearly to apply to 
 the case of - administrators. 
 
 It was held in In re Habback, International Marine Balance 
 Hydropathic Co. v. Hawes (29 Ch. Div. 934), that a order, 
 balance order under the Companies Act, 1862, obtained 
 against executors, does not destroy the executor's right 
 of retainer even though made prior to notice of the re- 
 tainer, and that one of several executors is entitled to a 
 right of retainer in respect of a mortgage debt due from 
 the testator to a body of trustees of whom that executor 
 is one. 
 
 ■jc Judgment in Mortgage Actions. [ -fc 160] 
 
 DYMOND o. CROFT. 
 (3 Ch. D. 512.) 
 
 A mortgagee may, since the Judicature Act, Princi pl e - 
 combine in one action the personal remedy on 
 the covenant with the remedy by foreclosure. 
 
 A mortgagee brought an action for foreclosure, 
 
 17 MODERN EQUITY. 
 
258 JUDGMENT IN MORTGAGE ACTIONS. 
 
 Summary of and claimed by his writ an order directing personal 
 facts. payment of the mortgage debt as well as the usual 
 
 judgment for foreclosure. The Registrar declined 
 to insert the order for personal payment, as being 
 contrary to the practice of the Court of Chancery in 
 foreclosure suits, but Jessel, M.R., directed that the 
 judgment should be drawn up as claimed by the writ. 
 
 Mortgagee's I Q this case the mortgagee claimed to be entitled by rea- 
 double relief son of the Judicature Act to a double relief— viz., to obtain 
 under Judi- not only the judgment for foreclosure which a Chancery 
 Tmz Court could have given him, but also the judgment on 
 
 the covenant which he would have obtained in a Com- 
 mon Law Court. "Both forms of relief," said Jessel, 
 M.R., "are expressly claimed. There is no reason now 
 why they should not be combined, and the judgment 
 may be drawn up accordingly." "Before the Judica- 
 ture Act," said the Court of Appeal in Fairer v. Lacy 
 Hartland & Co. (31 Ch. Div. 42, 49), "a mortgagee had 
 two rights, which were enforced in different tribunals — 
 an action at law against the mortgagor personally, and 
 a suit in equity against the mortgaged property. If he 
 desired judgment on the covenant against the mort- 
 gagor he could have brought an action at common law, 
 and if he succeeded he got an immediate judgment for 
 principal, interest, and costs of that action. If he 
 wished to foreclose his mortgage he must have pro- 
 ceeded in a Court of Equity, in which a different account 
 from that in the action at law would have been directed, 
 and the costs of suit would have been added to his costs 
 as mortgagee. The Judicature Act has enabled the two 
 rights to be enforced together by one proceeding in one 
 [ -^ 161] and the same -fa Court." And see observations to the 
 like effect in Bissett v. Jones (32 Ch. D. 637). A form 
 of the combined judgment given in Dymond v. Croft is 
 to be found, 3 Ch. D. p. 516, but it has since been to a 
 great extent superseded by the more elaborate judg- 
 ments drawn up in the subsequent cases. See Green- 
 ough v. Littler (15 Ch. D. 93) for the form of fore- 
 closure judgement where the mortgage debt is payable 
 by instalments, and Hunter v. Myatt (28 Ch. D. 181), 
 where the form of judgment in Grundy v. Grice (Seton 
 on Decrees, 4th ed. p. 1036) was modified. 
 
 In Farrerv. Lacy, Hartland & Co. (31 Ch. Div. 42), 
 (where the previous authorities are cited, and where an 
 elaborate form of order settled and approved by the 
 
JUDGMENT IN MORTGAGE ACTIONS. 259 
 
 Cqurt of Appeal will be found at p. 51), the mortgagee 
 brought his action, claiming — (1) an account of what 
 was due to him for principal, interest, and costs under 
 his security, including the costs, charges, and expenses 
 of an abortive sale; (2) payment of what was due; (3) 
 foreclosure or sale of the mortgaged property. The 
 defence was that the mortgagee vendor had by his 
 agent the auctioneer been guilty of negligence in the 
 conduct of the sale in accepting for the deposit a cheque 
 which was subsequently dishonoured, without first in- 
 quiring into the solvency or bona fides of the alleged 
 purchaser, and the defendant further contended that 
 the plaintiff Was not entitled to immediate payment, 
 but that six months ought to be allowed from the date 
 of the certificate finding the amount due. The first 
 point was disposed of in the plaintiff's favour, the Court Payment of 
 deciding that the acceptance of a cheque for the deposit deposit by- 
 was the practice in 99 cases out of 100. " Persons can- cheque, 
 not be expected to come to sales with large sums of 
 money in their pocket, and, moreover, I am not pre- 
 pared to say that a mortgagee vendor is bound to re- 
 quire a deposit at all from the bidder, for it is open to 
 him to sell by private contract, in which case no deposit 
 is, as a general rule, required. No doubt, the custom, 
 which has almost the force of a rule, is to take a deposit 
 on sales by auction, but it is an equally prevalent cus- 
 tom to take a cheque for the amount. 
 
 " Sales conducted in the ordinary way are much more 
 likely to succeed than those which are hampered by 
 numerous and unusual restrictions. But the argument 
 does not stop there, for it is said that the mortgagee is 
 not entitled to these costs because the sale had become 
 abortive by taking Peach's cheque. How did that ren- 
 der it abortive? If payment in cash had been insisted 
 upon here, there would have been either cash or do cash 
 forthcoming, and if no cash, the result would have been 
 that Peach's offer would have been off and the sale at 
 large again." 
 
 With regard to the next objection, Fry, L J., said: 
 " It has been contended that the result of the Judica- 
 ture Acts has been to preclude the plaintiff in his action 
 on the covenant, now that it is brought in the Chancery 
 Division, from obtaining immediate payment, and that 
 as by sect. 25, sub-sect. 11, of the Judicature Act, 1873, 
 the rules of equity are now to prevail, payment is to be 
 postponed for six months. ^ No rule of equity exists [ -fa 162] 
 that a sum immediately payable at law shall not be 
 payable for six months; and in my judgment if at the 
 
260 
 
 JUDGMENT IN MORTGAGE ACTIONS. 
 
 Equitable 
 mortgage. 
 
 Default of 
 appearance. 
 
 Practice. 
 
 Period or 
 periods for 
 redemption. 
 
 hearing the amount due should be proved, agreed to,, or 
 admitted, there should be an order for immediate pay- 
 ment, with bo much of the costs only as would have 
 been incurred if the action had been on the covenant 
 simply. There is no obligation to postpone payment, 
 but I think it is competent to the judge to postpone 
 payment for such a time as he may think reasonable; 
 nothing that I am saying must be treated as in any way 
 interfering with the discretion of a judge. The strict 
 right which the Court may, if it will, give effect to, is 
 immediate payment of the sum ascertained at the hear- 
 ing." 
 
 In Lees v. Fisher (22 Ch. Div. 283), the Court of Ap- 
 peal decided that for the future the judgment for fore- 
 closure in the case of an equitable mortgage ought not, as 
 in the form given in Seton on Decrees, 3rd ed. vol. ii. 
 p. 1146, to omit the word " foreclose," but ought to 
 contain directions that upon default the mortgagor will 
 be foreclosed, that the hereditaments will be discharged 
 from all equity of redemption, and that a conveyance 
 from the mortgagor to the mortgagee must be executed. 
 
 In Bissett v. Jones (32 Ch. D. 635) the defendant did 
 not appear, and the plaintiff claimed under Order xm. 
 r. 3 immediate judgment for a specific sum for princi- 
 pal and interest, and under Order xv. an account and 
 foreclosure. He was held entitled to judgment for the 
 liquidated amount, notwithstanding the fact that an 
 account had been asked, but not to foreclosure, Chitty, 
 J., declining to follow his own previous decision on 
 this point in Smith v. Davies (28 Ch. D. 650), and see 
 Blake v. Harvey (29 Ch. D. 827). 
 
 Where a defendant admits at the hearing that the 
 whole of the principal sum is due from him to the 
 plaintiff, immediate payment will be ordered. Instone 
 v. Elmslie (34 W. E. 592). 
 
 In Law v. Philby (35 W. R. 401) special attention 
 was directed to the following point of practice, viz. : 
 When a mortgagee seeks, on motion for judgment, 
 not only foreclosure, but also a personal ,order for pay- 
 ment on the mortgage-moneys, against a mortgagor 
 who has made default in delivering a defence, the state- 
 ment of claim ought, however shortly, to contain an 
 express statement of the covenant upon which the order 
 for payment is claimed. 
 
 The question as to whether, in cases whore there are 
 several incumbrances, one period should be fixed, or 
 whether there should be successive periods for redemp- 
 tion, has been considered in several cases which will be 
 
JUDGMENT IN MORTGAGE ACTIONS. 261 
 
 found collected under Smithy. Olding (25 Ch. D. 462), 
 Piatt v. Mendel (27 Ch. D. 246), (where the reason of the 
 rule is elaborately considered), Doble v. Manley (28 Ch. 
 D. 664). In the latter case Chitty, J., states the prac- 
 tice which had been unanimously adopted by the judges 
 whom he had consulted, viz : — 
 
 That where the defendants did not appear, one time 
 only should be fixed for redemption whether the state- 
 ment of claim alleged that they -^ were entitled or only [" -±- 1631 
 that they claimed to be entitled to incumbrances. To 
 fix several successive periods was to make a decree as 
 between co-defendants which should not be granted 
 except upon the request of a defendant. If any sub- 
 sequent mortgagee appeared and claimed to have suc- 
 cessive periods fixed, the Court would have to consider 
 whether he was entitled to them. 
 
 It may here be noticed that a completely novel right Conveyanc- 
 has been conferred upon mortgagors by sect. 15 of the in 9 Act, 
 Conveyancing Act, 1881. That section, which is re- |? sl ' sect " 
 trospective in its operation and is to have effect " not- 
 withstanding any stipulation to the contrary," provides 
 that where a mortgagor is entitled to redeem he shall 
 by virtue of this Act have power to require the mort- 
 gagee instead of reconveying and on the terms on which 
 he would be bound to reconvey, to assign the mortgage 
 debt and convey the mortgaged property to any third 
 person as the mortgagor directs, and the mortgagee 
 shall by virtue of this Act be bound to assign and con- 
 vey accordingly. 
 
 The section, however, is not to apply in the case of 
 a mortgagee being or having been in possession. The 
 provisions of this section were considered in Alderson 
 v. Elgy (26 Ch. D. 567), where it was held that a ten- 
 ant for life of mortgaged premises who has failed to 
 keep down the interest and who has obtained the usual 
 order permitting him to redeem the mortgage, is not of 
 right entitled under sect. 15 of the Conveyancing and 
 Law of Property Act, 1881, to require the mortgagee 
 to transfer the mortgage debt and premises to a third 
 person. 
 
 Section 12 of the Conveyancing Act, 1882, passed in Coniryanc- 
 consequence of Teevan v. Smith (20 Ch. D. 724), pro ing Act, 
 vides that the right of a mortgagor under sect. 15 of 1882, sect, 
 the Conveyancing Act, 1881, to require a mortgagee 12, 
 instead of reconveying to assign the mortgage debt and 
 convey the property to a third person, shall belong to 
 and be capable of being enforced by each incumbrancer 
 or by the mortgagor, notwithstanding any intermediate 
 
JUDGMENT IN MORTGAGE ACTIONS. 
 
 incumbrance, but a requisition of an incumbrancer shall 
 prevail over a requisition of the mortgagor, and as be- 
 tween incumbrancers a requisition of a prior incum- 
 brancer shall prevail over a requisition of a subsequent 
 incumbrancer. 
 
 Mortgagee The question as to the circumstances under which a 
 
 in possession, mortgagee can be charged as a mortgagee in possession 
 was much discussed recently in the Court of Appeal in 
 Noyes v. Pollock (32 Ch. Div. 53). The principle on 
 which a mortgagee is so charged was well explained in 
 Lord Kensington v. Bouverie (7 D. M. & G. 134, 157), 
 cited with approval in the judgment of Bowen, L.J. 
 (pp. 63, 64). 
 
 "A mortgagee when he enters into possession, of the 
 mortgaged estate enters for the purpose of recovering 
 both his principal and interest, and the estate being in 
 the eye of this Court a security only for the money, 
 the Court requires him to be diligent in realizing the 
 amount which is due, in order that he may restore the 
 estate to the mortgagor who, in the view of this Court, 
 is entitled to it. It is part of his contract that he should 
 do so." "If the mortgagee is in receipt of the rents 
 
 [ ^r 164] and -fa profits, the account is taken against him as if he 
 were in possession, and he is answerable not only for 
 what the tenants pay, but for not letting the property 
 if he could have done so, and for not getting the full 
 rents from the tenants if they could have paid them, 
 and he is looked upon as if he had taken upon himself 
 the control and management, including letting and 
 making allowances to tenants, and getting the best rent 
 from them he can. In order to hold that a mortgagee, 
 not in actual possession, is in receipt of the rents and 
 profits, in my opinion it ought to be shewn not only 
 that he gets the amount of the rents paid by the ten- 
 ants, even although he gets their cheques or their cash, 
 but that he receives them in such a way that it can be 
 properly said that he has taken upon himself to inter- 
 cept the power of the mortgagor to manage his estate, 
 and has himself so managed and received the rents as 
 part of the management of the estate." 
 
 Practice. A great change as to practice was introduced by the 
 
 Rules of December, 1885, Order lv. rr. 5a and 5b, en- 
 abling " any mortgagee or mortgagor whether legal or 
 equitable, or any person entitled to or having property 
 subject to a legal or equitable charge, or any person 
 having the right to foreclose or redeem any mortgage 
 whether legal or equitable, to take out as of course an 
 originating summons returnable in the chambers of a 
 
RIGHTS OF PLEDGEE. 263 
 
 Judge of the Chancery Division for such relief of the 
 nature or kind following as may by the summons be 
 specified and as the circumstances of the case may re- 
 quire (that is to say) — sale, foreclosure, delivery of 
 possession by the mortgagor, redemption, reconvey- 
 ance, delivery of possession by the mortgagee. 
 
 5 b. " The person to be served with the summons 
 under the last proceeding shall be such person as un- 
 der the existing practice of the Chancery Division 
 would be the proper defendant to an action for the like 
 relief as that specified by the summons." 
 
 •jz Rights of Pledgee of Personal Chattels. [-fc-165] 
 
 CARTER v. WAKE. 
 
 (4 Ch. Div. 605.) 
 
 A mere pledgee of personal chattels is not en- Principle. 
 titled to foreclosure. 1 
 
 "Wake deposited with Carter Canada Railway summary o± 
 Bonds as security for a debt. Carter claimed to be facte - 
 entitled to a foreclosure decree, and stated that if 
 the bonds, which were then at a considerable dis- 
 count but redeemable at par after some years, were 
 sold at all, they would be insufficient to pay his 
 debt, but that he had calculated that if he were al- 
 lowed to foreclose he could repay himself in full 
 when the bonds were redeemed. The Court de- 
 cided .that Carter was only entitled to an order for 
 sale. 2 
 
 1 According to American authorities the remedy of a pledgee 
 is two-fold; he may file a bill in chancery in the nature of a fore- 
 closure bill and proceed to a judicial sale, or he may after hav- 
 ing given due notice to the pledgor to redeem, and of the in- 
 tended sale, sell without judicial process. Case v. MeCabe, 35 
 Mich. 101; Diller v. Brubaker, 2 P. F. Sm. 502; Worthington r. 
 Tormey, 34 Md. ; Strrmg v. Nat. Mechanics' Bank Association, 45 
 N. Y. 718, 2 Kent's Com. 582. 
 
 2 As to damages for a wrongful sale by the pledgee, see Fisher 
 v. Brown, 104 Mass. 259. and Johnson v. Stear, 15 C. B. (N. S.) 
 330, note by American Editor. 
 
264 RIGHTS OF PLEDGEE. 
 
 The plaintiff in this action claimed to be in the same 
 position as an equitable mortgagee of land by deposit 
 of deeds. 3 Jessel, M.R., however decided that he was 
 Deposit of a mere pledgee of chattels. " The principle," he said, 
 title deeds " upon which the Court acts, in the case of a mortgage 
 contrasted ^y <j e p 0s it f title deeds of land, is that in a regular 
 wi p e ge. j e g a j mor tgage there has been an actual conveyance of 
 the legal ownership, and then the Court has interfered 
 to prevent that from having its full effect, and where 
 the ground of interference is gone by the non payment 
 of the debt, the Court simply removes the stop it has 
 itself put on. But where there is a deposit of title 
 deeds, the Court treats that as an agreement to execute 
 a legal mortgage, and, therefore, as carrying with it all 
 the remedies incident to such mortgage. 4 None of this 
 reasoning applies to a pledge of chattels; 5 the pledgee 
 never had the absolute ownership at law, and his equita- 
 ble rights cannot exceed his legal title." 6 
 Nature of It should be remembered that a pledge, as distin- 
 
 pledge. guished from a mortgage, is a security by way of bail- 
 
 ment 7 — for which actual or constructive delivery is es- 
 sential — of a personal chattel by which a special or 
 qualified property therein, sufficient to support an action 
 against a person who wrongfully converts it, is vested 
 { -^ 166] in the pledgee, the general *fc property remaining in 
 the pledgor. A special agreement that the pledgee 
 shall have a power of sale does not alter the character 
 of the transaction or turn it into a mortgage. (Fisher 
 on Mortgages, 4th ed. pp. 72, 76). 
 
 3 Mortgages created by deposits of title deeds, and the ven- 
 dor's lien for purchase money, while they are mortgages of 
 equitable interest do not result in the creation of an independent 
 equitable title but are in their nature liens. See Jarvis v. 
 Dutcher. 16 Wis. 307; Griffin v. Id., 3 C. E. Green, 104; Hackett 
 v. Reynolds, 4 R. I. 512. 
 
 4 In the following cases agreements to give a mortgage have 
 been held to create a lien. Bank v. Carpenter, 7 Ohio, 21 ; 
 Matter of Howe, 1 Paige, 125; Hall v. Id., 50 Conn. 104; Amer- 
 ican note to Russell v. Id., 4 Leading Cases Eq. 934, and cases 
 therein cited. 
 
 5 A pledge differs from a mortgage in that a mortgage conveys 
 the thing mortgaged to the mortgagee upon conditions which if 
 broken the property remains absolutely in the mortgagee while 
 in a pledge the general property is never conveyed to the pledgee 
 but only a special property in the thing pledged. American 
 note to Coggs v. Bernard, 1 Smith's Lead. Cas. 384. 
 
 h Williams on Personal Property, 46. 
 
 7 Bailment is defined by Sir William Jones (on Law of Bail- 
 ment) to be a delivery of the goods in trust, on a contract ex- 
 pressed or implied, that the trusts shall be duly executed, and 
 the goods redelivered as soon as the trust or use for which they 
 were bailed shall have elapsed or be performed. 
 
RIGHTS OF PLEDGEE. 265 
 
 The principle on which Carter v. Wake was decided 
 was distinguished in General Credit and Discount Co. 
 v. Glegg (22 Ch. D. 549), were railway shares, which 
 had been given as security, were actually transferred to 
 the lenders whose names were placed on the registers 
 of the respective companies. It was held that as the 
 legal interest was vested in the mortgagees they were 
 entitled to foreclosure. 
 
 The position of equitable mortgagees of shares by Deposit of 
 deposit of transfers, was carefully considered by the blank. 
 Court of Appeal in France v. Clark (26 Ch. Div. 257). 
 In Februaiy, 1881, France, who was the registered 
 holder of ten fully paid up shares, deposited the certifi- 
 cates with Clark to secure £ 1 50 together with a deed 
 of transfer signed by him, in which the consideration, 
 the date, and the name of the transferee were in blank. 
 Clark subsequently deposited the certificate and trans- 
 fer with Quilhampton as security for £250, and in 
 April, 1881, died insolvent. Quilhampton then filled 
 in his own name as transferee on the deed of transfer, 
 and on the 24th of June sent in the transfer for regis- 
 tration. On the 27th of June France's solicitors wrote 
 to the company not to register the transfer, and also 
 gave notice to Quilhampton of France's claim. A cer- 
 tificate that the shares belonged to Quilhampton was 
 signed on June 30th. The company's register shewed 
 an entry of the transfer under date the 24th of June, 
 but it appeared from the evidence that no consent of 
 the directors could have been obtained before June 30th. 
 Held by the Court of Appeal, that Quilhampton had 
 no title against France except to the extent of France's 
 liability to Clark. 
 
266 MORTGAGE PRIORITIES. 
 
 [if 161] ^ Mortgage. 
 
 Priorities. 
 
 NORTHERN INSURANCE v. WHIPP. 
 (26 CH. Div. 482.) 
 
 Principle. A legal mortgagee will be postponed to a sub- 
 
 sequent equitable mortgagee 1 (1) when he has as- 
 sisted in or connived at a fraud which has led 
 to the creation of a subsequent equitable estate 
 without notice of the prior legal estate ;* (2) 
 when he has constituted the mortgagor his agent 
 with authority to raise money \ and the estate 
 thus created has by the fraud or misconduct of 
 the agent been represented as being the first 
 estate? 
 
 But the Court will not postpone the prior 
 legal estate to the subsequent equitable estate on 
 the ground of any mere carelessness or want of 
 prudence on the part of the legal owner? 
 
 Summary of Crabtree, who was manager of the plaintiff corn- 
 facts, pany, executed a legal mortgage of his freehold for 
 £4500 1o the company, delivered the title deeds to 
 them, and received the money. The deeds were 
 placed in the company's safe, of which Crabtree had 
 a duplicate key. Crabtree took the deeds out of the 
 safe, mortgaged the property to Mrs. Whipp, who 
 
 1 A mortgagee whose mortgage is recorded will not. be post- 
 poned merely because he knew that the mortgagor was making 
 a subsequent conveyance of the premises and did not make 
 known his title. Jones on Mortgages, Sect. 603. 
 
 2 See Marston v. Brackett, 9 N. H. 336; Paine v. French, 4 
 Ohio, 318; Brinckerhoff v. Lansing, 4 Johns. Ch. 65. 
 
 a If the mortgagor and mortgagee combine in any way to in- 
 duce another person to loan money upon the estate, in ignorance 
 of the first mortgage this fraud will postpone the mortgagee's 
 own mortgage. Chester r. Green, 5 Humph. (Tenn.) 26: Miller 
 *. Brigham, 29 Vt, 82; Pratt r. Squier, 12 Met. (Mass.1 494. 
 
 4 Negligence is not fraud, though it may be evidence of it. 
 Jones on Mortgages, Sect. 604. 
 
MORTGAGE PRIORITIES. 267 
 
 had no notice of the company's mortgage, and 
 handed over the deeds. The Court of Appeal de- 
 cided that the company was entitled to priority over 
 Mrs. Whipp. 
 
 The Court of Appeal in this remarkable case elabor- 
 ately reviewed the authorities upon the subject, and 
 considered that they justified the conclusions which 
 have been stated above with regard to the circumstances 
 under which a legal mortgagee will or will not be post- 
 poned^ to a subsequent equitable incumbrancer. The [ -^ 168] 
 problem to be determined ( on which, as stated in Man- 
 ners v. Mew (29 Ch. Div. 727), the judgment in the Circuro- 
 present case has settled and stated the law in the clear- stances 
 est possible manner) was what conduct in relation to under which 
 the title deeds on the part of a mortgagee who has the J^ee m°ay be 
 legal estate is sufficient to postpone such mortgagee in postponed, 
 favour of a subsequent equitable mortgagee who has 
 obtained the title deeds without knowledge of the legal 
 mortgage. The question, the Court stated, is not what 
 circumstances may as between two equities give priority 
 to the one over the other, but what circumstances justify 
 the Court in depriving a legal mortgagee of the benefit 
 of the legal estate. 5 The assistance or connivance in 
 the fraud leading to the creation of the equitable estate 
 may be sufficiently evidenced by the omission to use 
 ordinary care in inquiring after or keeping title deeds. 6 
 
 Applying then these conclusions to the facts of the 
 case before them, the Court came to the conclusion that, 
 though there was gross carelessness on the part of the 
 plaintiffs in the mode in which they allowed their direc- 
 tors to deal with the securities, there was nothing in it 
 evidencing any fraud. Again, there was no proof that 
 the company had constituted Crabtree their agent with 
 authority to raise money, but on the contrary, in their 
 
 5 A mortgage which has once obtained priority does not lose 
 its place by being held by one under an unrecorded assignment. 
 Douglass v. Pee.le, 1 Clarke (N. Y.), 563; and if a mortgagee has 
 a notice of a prior unrecorded mortgage or there are equities such 
 that his own mortgage is subject to them, yet if he assigns his 
 mortgage for a valuable consideration to one who has no notice of 
 the earlier mortgage or of such equities the assignee is entitled 
 to hold the mortgage as a prior lien upon the land, solely on the 
 ground that it was recorded first. Jones on Mortgages, Sect. 
 558; Corning v. Murray, 3 Barb. (N. Y.) 652. 
 
 6 An equitable mortgage may be created by deposit of the title 
 deeds. Carey v. Rawson, 8 Mass. 159; Jarvis v. Dutcher, 16 
 Wis. 307; Mandeville v. Welch, 5 Wheaton, 277. 
 
268 
 
 MORTGAGE PRIORITIES. 
 
 Two cata- 
 gories of 
 cases. 
 
 Legal 
 mortgagee 
 not obtain- 
 ing posses- 
 sion of 
 title deeds " 
 
 [ * 169] 
 
 opinion the evidence went too far to negative the exist- 
 ence of such an authority. The present case conse- 
 quently did not fall under either of the classes of cases 
 in which, according to the authorities, a legal mortgagee 
 ought to be postponed by the Court to a subsequent 
 equitable incumbrancer. 
 
 The cases upon the subject, the Court of Appeal said, 
 fell into two categories:-- 
 
 (1) Those which relate to the conduct of the legal 
 mortgagee in not obtaining possession of the title deeds. ' 
 
 (2) Those which relate to the conduct of the legal 
 mortgagee in giving up or not retaining the possession 
 of the title deeds after he has obtained them. 
 
 These two classes of cases, the Court went on to say, 
 would not be found to differ in the principles by which 
 they were to be governed, but to differ much in the 
 .kind of fraud which was to be most naturally looked for. 
 
 The first category of cases was divided into the four 
 following classes: 
 
 1. "Where the legal mortgagee or purchaser has made 
 no inquiry for the title deeds, and has been postponed 
 either to a prior equitable, estate, as in Worthington v. 
 Morgan (16 Sim. 547), or to a subsequent equitable 
 owner who used diligence in inquiring for the title 
 deeds, as in Clarke v. Palmer "(21 Ch. D. 124). 8 In 
 these cases the Courts have considered the conduct of the 
 mortgagee in making no inquiry to be evidence of the 
 fraudulent intent to escape notice of a prior equity, and 
 in the latter case that a subsequent mortgagee who was 
 in fact misled by the mortgagor taking advantage of 
 the conduct of the legal mortgage, could, as against 
 him, take advantage of the fraudulent intent. 
 
 2". Where the legal mortgagee has made inquiry for 
 the deeds, and -£ has received a reasonable excuse for 
 their non-delivery, and has accordingly not lost his 
 priority, as in Barnett v. Weston (12 Ves. 130), Hewitt 
 v. Loosemore (9 Hare, 449), Agra Bank v. Barry (L. 
 R. 7 H. L. 135). 9 
 
 3. Where the legal mortgagee has received part of 
 the deeds under a reasonable belief that he was receiv- 
 ing all, and has accordingly not lost his priority, as in 
 Hunt v. Elwes (2 De G. F. & J. 578), Ratcliffe v. 
 
 7 The English law in regard to possession of title deeds has 
 generally no application in this country owing to the general 
 system of registry. 
 
 8 Berry r. "Mutual Ins. Co., 2 Johns. Ch. 603. 
 
 9 When the mortgage is registered notice, is given to all the 
 world, and there is no necessity for the mortgagee to have pos- 
 session of the title deeds. Evans o. Jones, 1 Yeates (Pa.), 174. 
 
MORTGAGE PRIORITIES. 269 
 
 Barnard (L. E. 6 Ch. 652) and Golyer v. Finch (5 H, 
 L. C. 905). 
 
 4. "Where the legal mortgagee has left the deeds in 
 the hands of the mortgagor with authority to deal with 
 them for the purpose of raising money on security of 
 the estate, and he has exceeded the collateral instruc- 
 tions given him: In these cases the legal mortgagee 
 has been postponed, as in Perry-Herrick v. Athvood (2 
 De G. & J. 21). This case was decided, not on the 
 ground that the legal mortgagees' had been guilty of 
 fraud, but on the ground, that as they had left the deeds 
 in the hands of the mortgagor for the purpose of rais- 
 ing money, they could not insist, as against those who 
 in reliance on the deeds lent their money, that the 
 mortgagor had exceeded his authority. 
 
 The second category, i.e. the cases where the mort- Legal 
 gagee having received the deeds has subsequently parted mortgagee 
 with them or suffered them to fall into the hands of the parting with 
 mortgagor, were divided into the following classes: " " 
 
 1. Where the title deeds . have been lent by the legal 
 mortgagee to the mortgagor upon a reasonable repre- 
 sentation made by him as to the object in borrowing 
 them, and the legal mortgagee has retained his priority 
 over the subsequent equities, as in Peter v. Russell or 
 Thatched House Case (1 Eq. Cas. Abr. 321), Martinez 
 v. Cooper (2 Euss. 198). 
 
 2. Where the legal mortgagee has returned the deeds 
 to the ' mortgagor for the express purpose of raising 
 money on them, though with the expectation that he 
 would disclose the existence of the prior security to any 
 second mortgagee: Briggs v. Jones (L. E. 10 Eq. 92). 
 In such cases the Court has on the ground of authority 
 postponed the legal to the equitable estate. This is the 
 same in principle as the decision in Perry-Herrick v. 
 Attwood (ubi supra). The Court there considered the 
 last point summarized in the head-note, and- decided 
 
 .that there was no authority for the proposition that the 
 legal mortgagee could be postponed by reason of mere 
 negligence in the custody of the deeds. The whole 
 course of decisions, they said, "impliedly negatived the 
 proposition that the legal owner of land owed a duty to 
 all other of Her Majesty's subjects to keep his title deeds 
 secure, as if title deeds were in the eye of the law anal- 
 ogous to fierce dogs or destructive elements, where from 
 the nature of the thing the Courts have implied a gen- 
 eral duty of safe custody on the part of the person 
 having that possession or control." This doctrine was 
 moreover expressly repelled by the judgment of the 
 
270 MORTGAGE — PRIORITIES. 
 
 House of Lords in the Agra Bank v. Barry (L. K. 7 
 H. L. 157), where it was said that the duty of inves- 
 tigating title and inquiry after deeds is not a duty 
 which a purchaser or mortgagee owes to the possible 
 [ ^ 170] holder of a latent title or security. It is -^merely the 
 course which a man dealing bond fide in the proper 
 and usual manner for his own interest, ought, by him- 
 self or his solicitor, to follow, with a view to his own 
 title and his own security. If he does not follow that 
 course, the omission of it may be a thing requiring to 
 be accounted for or explained. It may be evidence, if 
 it is not explained, of a design, inconsistent with bond 
 fide dealing, to avoid knowledge of the true state of 
 the title. What is a sufficient explanation must always 
 be a question to be decided with reference to the nature 
 and circumstance of each particular case. The Court 
 of Appeal, however, suggested that if in any case it 
 could be shewn that the prior legal mortgagee had un- 
 dertaken any duty as to the custody of the title deeds 
 towards any given person, had neglected that duty and 
 had thereby injured the person to whom he owed the 
 duty, the legal estate might be postponed by reason of 
 the negligence. 
 
 In National Provincial Bank of England v. Jackson 
 (33 Ch. Div. 1) the Court of Appeal decided that the 
 principle laid down in the leading case, that a legal 
 mortgagee will not be postponed to a subsequent equit- 
 able mortgage on the ground of any mere carelessness 
 or want of prudence, did not apply as between equit- 
 able claims. In that case two ladies, whose freehold 
 property was subject to a mortgage, were induced by 
 their brother J. to convey their shares to him in consid- 
 eration of a debt alleged to be due to him, and pay- 
 ment of a sum of money. There was no consideration 
 whatever for the deeds as there was no money due, nor 
 was any payment made. The deeds were never read 
 over or explained to the ladies, but were signed in full 
 reliance on J.'s statement. Next day J. deposited the 
 deeds at the plaintiff bank as security for a loan, and 
 the bank manager was told by J. that the ladies wore 
 not to receive any consideration for their conveyances, 
 although the conveyances recited the alleged debt and 
 consideration money. The manager communicated 
 with the bank's solicitor, but did not tell him that in 
 fact there had been no consideration for the convey- 
 ances, and the title was accordingly accepted. Held, 
 by the Court of Appeal, that the conveyances were 
 voidable, and that the bank, being by their negligence 
 
MORTGAGE SECURITY. 271 
 
 chargeable with constructive notice of the fraud, must 
 have their equity postponed to that of the ladies. See 
 also Lloyd's Banking Company v. Jones (29 Ch. D. 
 221), where the holder of the legal estate was post- 
 poned to an equitable incumbrancer on the ground of 
 negligence in omitting to inquire for title deeds, and 
 Manners v. Mew (29 Ch. Div. 725), where the previous 
 authorities are reviewed, and it was held that the legal 
 mortgagee, who had asked for the deeds and had received 
 a reasonable excuse for their non-production, ought not 
 to be postponed. 
 
 It was held in Fourth City Mutual Benefit Buildiny Building 
 Society v. Williams (14 Ch. D. 140), that where the Society - 
 legal estate in land has been vested in a building society Jitie'tofewai 
 as mortgagees and the society is paid off and gives the estate. 
 statutory receipt under the Act of 1874, the legal estate 
 is vested in the person who is best entitled to call for 
 it, ex. gr. an equitable mortgagee who is first in point 
 of time; and see Peaces. ■£ Jackson (L. E. 3 Ch. 676), [ )f 171] 
 Robinson v. Trevor (12 Q. B. Div. 423), (where the right 
 was limited to the amount advanced to pay off the 
 building society,) and Sangster v. Cochrane (28 Ch. D. 
 298). 
 
 Mortgage Security. 
 
 Ex parte ODELL, In re WALDEN. 
 (10 Ch. Div. 76.) 
 
 The Court regards the substance of a trans- p r i nc i p i e 
 action, and if though in form a sale it is in re- 
 ality a mortgage, it will be treated as a mort- 
 gage} 
 
 Cochrane advanced Walden £150 to pay out an g ummary f 
 
 execution, and upon the same day two documents tacts. 
 
 1 If the agreement is in substance a mortgage, its form cannot 
 deprive the debtor of his equity of redemption, and the courts 
 lean strongly in favor of construing agreements to be mortgages 
 rather than conditional sales. Carpenter v. Snelling, 97 Mass. 
 452 ; Todd v. Campbell, 8 Casey, 250 ; Robinson v. Willoughby, 
 65 N. Ca. 520 ; Wing v. Cooper, 37 Vt. 179 ; Wilson v. Patrick, 
 34 Iowa, 370 ; Peterson v. Clark, 15 Johns. 205 ; Cornell v. Hall, 
 22 Mich. 377 ; Ruffler v. Womack, 30 Texas, 332. 
 
272 MORTGAGE SECURITY. 
 
 were executed, one an inventory of the furniture in 
 Walden's house, at the foot of which was a receipt 
 for £150 for the "absolute" sale to Cochrane "of 
 the above-mentioned articles;" the other was an 
 agreement in writing, by which Cochrane let Wal- 
 den the same furniture for two months for £170, to 
 be repaid on 18th September, or such other time as 
 might be agreed upon; and power was given to 
 Cochrane in certain specified events/ to determine 
 the agreement and take possession of the goods, sell 
 them, and pay the surplus (if any) to "Walden, who 
 on the other hand was to make good any deficiency. 
 On payment of the £170, together with costs, 
 charges, and expenses payable under the agreement, 
 the goods were to become the property of Walden. 
 Held, by the Court of Appeal, that the two docu- 
 ments constituted a mortgage and required registra- 
 tion as a bill of sale. 2 
 
 [ -fa 172] -fc- The Court of Appeal in this case proceeded upon 
 
 the principle which Lord Justice Lindley had adopted 
 in the previous case of Cochrane v. Matthews (cited in 
 note, p. 80), of looking " at the substance of the trans- 
 action." 3 The machinery adopted in both cases by the 
 persons who made the advances was the same, — it was 
 not an ordinary mortgage, but a sale and a demise, e.g. 
 the mortgagee had no intention of buying the property 
 with a view of keeping it, but he merely took it as a 
 security for the money advanced. In both cases the 
 party who paid the money acquired the property, but 
 only on an agreement that he should redemise it to the 
 true owner. The two pieces of paper, said the Court 
 in Cochrane v. Matthews (p. 81, note), are portions of 
 one transaction and cannot be separated as if they were 
 unconnected with each other. They constitute one 
 transaction just as much as if the two pieces of paper 
 
 2 Cotterell v. Long, 20 Ohio, 464 ; Davis v. Clay, 2 Mo. 161 ; 
 Hunter v. Hatch, 45 111. 178 ; Huoncker i\ Merkey, 102 Pa. St. 
 465 ; Moore v. Wade, 8 Kansas, 381 ; Phoenix i<. Gardner, 13 
 Minn. 430. 
 
 3 The question whether a conveyance is a conditional sale or a 
 mortgage is determined hy a consideration of the circumstance 
 peculiar to each case. Edrington v. Harper, 3 J. J. Marsh, 354 ; 
 Heath v. Williams, 30 Ind. 495; Davis v. Stonestreet, 4 Ind. 101. 
 
MORTGAGE SECURITY. 273 
 
 had been one piece of parchment. No doubt there are 
 two pieces of paper, but we cannot fritter the case away 
 by saying the transaction is to be regarded differently 
 accordingly, as part of it is on one piece of paper and 
 part of it on another, or because one part of it may be 
 on blue paper and another on white paper. That is a 
 piece of the machinery. "What we have got here," 
 said the Court of Appeal in Ex parte Odell (p. 85), " is 
 the evidence of two contemporaneous documents, both 
 executed as part and parcel of the same transaction as 
 much contemporaneous as it is possible for two docu- 
 ments to be, and those two documents together consti- 
 tute the real transaction between the parties. The real 
 transaction which took place, as evidenced by the two 
 documents now before us, was a Bill of Sale of goods 
 for the purpose of securing a debt, the goods being in 
 truth and in substance redeemable upon the payment 
 of the debt" with the interest thereby stipulated. The 
 form adopted, a sale and a demise, seems to be wholly 
 immaterial. 4 You cannot defeat the operation of the 
 Bills of Sale Act by putting part of the transaction in 
 one document and the other part in another document. 
 Both documents should have been registered as a Bill 
 of Sale. Together they constitute a Bill of Sale with 
 a defeazance." 
 
 The leading case Ex parte Odell and Cochrane v. 
 Matthews (ubi supra), where distinguished in North 
 Central Wagon Co. v. Manchester, Sheffield, &c. R. Co. 
 (32 Ch. D. 477). In that case a colliery company being 
 in want of money applied to the plaintiffs for assistance, 
 the plaintiffs paid £1000 to or on behalf of the colliery 
 company, and took receipts and an invoice in which the 
 £1000 was described as the purchase money for 100 
 railway waggons. Simultaneously the plaintiffs and 
 the colliery company executed an agreement by which 
 the plaintiffs let the 100 waggons to the colliery com- 
 pany for a term of three years certain at a rental paya- 
 ble quarterly, which represented £1000 and interest at 
 7 per cent, for the three years. The agreement author- 
 ized the plaintiffs, when a quarter's rent was in ariear, 
 to seize the wagons and put an end to the agreement, 
 and the colliery company had an option only exercisea 
 ble in the event of -fa all payments of interest, &c, being [ -fa 173] 
 duly made, of purchasing all or any of the waggons at 
 
 * The rights of a person under a mortgage are very different 
 from those under a conditional sale. Conway v. Alexander, 7 
 Cranch, 218 ; Flagg v. Mann, 14 Pick. 467. 
 
 18 MODERN EQUITY. 
 
274 
 
 MORTGAGE SECURITY. 
 
 "Once a 
 mortgage 
 always a 
 mortgage." 
 
 Is. each. 5 It was held by the judge of first instance that 
 this transaction was in substance a loan, and that the 
 agreements, receipts and invoices constituted a bill of 
 sale which required registration. The Court said the 
 transaction was clearly covered by Ex parte Odell, and 
 even more completely by Cochrane v. Matthews (ubi 
 supra), where, with a certain degree of ingenuity and 
 a good, deal of care, the transaction was made to con- 
 sist of two particular documents, but the judge before 
 whom it came, grappling with the sense of the case 
 and the meaning of the law, treated them as only one 
 document intended to evade the Bills of Sale Act. The 
 Court of Appeal (35 Ch. Div. 191), however, distin- 
 guished the case from Ex parte Odell on the ground 
 that here there was a complete contract for sale and 
 purchase independently of the invoices and receipts, 
 and in consequence held that the documents did not 
 constitute a bill of sale. 
 
 In deciding whether a transaction is to be treated as 
 a mortgage or a sale with opinion of repurchase, the rule 
 of the Court is that the inadequacy of the consideration, 
 the value of the property, the taking by the grantee of 
 immediate possession under the conveyance and the 
 payment by him or by the grantor of the costs of the 
 transaction or of insurances and other outgoings of the 
 property, will be taken into consideration as favouring 
 the conclusion that the transaction was intended to be 
 a mortgage, but will not be conclusive upon the ques- 
 tion whether a doubtful instrument was intended to 
 take effect by way of mortgage or of sale. 6 
 
 The principle that the Court looks at the substance 
 and not at the form of the transaction^ is at the foun- 
 dation of much of the law on the subject of mortgages. 
 This may be illustrated by the eetablished rule "once a 
 mortgage always a mortgage," ' i.e. that an estate can- 
 not be at one time a mortgage and at another time 
 cease to be a mortgage by one and the same deed; that 
 the law (departing from the principle modus et conventio 
 
 6 A'contract of repurchase may upon its face show that the 
 parties really intended an absolute sale with the privilege to the. 
 vendor to repurchase on certain terms. Hanford v. Blessing, 80 
 111. 188 ; and on the other hand, a deed showing that, it was 
 executed to secure the payment of a loan of money, shows upon 
 its face that it is a mortgage. Montgomery v. Chadwick, 7 Iowa. 
 114. 
 
 6 It is sometimes necessary to resort to evidence outside of the 
 instrument to determine the character of the transaction. Mc- 
 Carron v. Cassidy, 18 Ark. 34; Rich v. Doane, 35 Vt. 125; Snyder 
 t). Giiswold, 37 111. 216; Parrish v. Gates, 29 Ala. 254. 
 
 ' Jones on Mortgages, Sect. 7. 
 
MORTGAGE SECURITY. 2T5 
 
 vincunt legem), will control even an express agreement 
 of the parties, and that equity will let a man loose from 
 his agreement, and even against his agreement, admit 
 him to redeem a mortgage; 8 1 Vern, 192. Coote on 
 Mortgages, p. 16, 2nd ed. 
 
 In In re Alison; Johnson v. Mounsey (11 Ch. Div. Conveyance 
 284) a security for money lent was made in the form on trust for 
 of a conveyance to the lender, in trust to sell, and it sale ' 
 was held that such a security was simply a mortgage 
 and nothing more. 9 In this case the Court distinguish- 
 ed the case of Locking v. Parker (L. E. 8 Ch. 30), where 
 the sale had taken place before the time limited by the 
 Statute of Limitations had expired, in which James, L. 
 J., said, "I am of opinion that this is nothing more 
 than a common mortgage security taken by way of a 
 trust for sale, and I entirely concur with what was said 
 in Kirkwoodv. Thompson (2 H. & M. 392); it is not for 
 a Court of Equity to be making distinction between 
 forms instead of attending to the real substance and 
 essence of the transaction. In these cases it was point- 
 ed out that a security in -fr the form of a trust for sale [ ~4( 174} 
 differs from an ordinary mortgage as regards remedies, 
 in that the mortgagee cannot commence an action for 
 foreclosure, but is limited to his remedy by sale. This 
 distinction, however, makes no substantial difference in 
 his position; the transaction is a mortgage and nothing 
 more." 
 
 It may be here desirable to notice that the law with Bills of Sale 
 regard to that peculiar form of mortgage which formed -^ cts - 
 the subject of contention in the leading case, viz., the 
 bill of sale, has been practically revolutionised by the 
 Bills of Sale Act, 1878, Amendment Act, 1882 (45 & 46 
 Vict. c. 43). 
 
 The Acts of 1854 (17 & 18 Vict. c. 36) and 1866 (28 
 & 29 Vict. c. 96) are repealed, with the usual saving 
 clauses as to instruments executed under their pro- 
 visions. Bills of sale executed between the 1st of 
 January, 1879, and let November, 1882, are governed 
 by the Act of 1878 (41 & 42 Vict. c. 31 , and those ex- 
 
 8 "A man cannot by any form of language part with his equity 
 of redemption in favour of the mortgagee at the same instant of 
 the creation of the mortage." Bisphain's Eq. (4th Ed.) 153 and 
 Eognn v. Walker, 1 Wis. 528; Jaques v. Weeks, 2 Watts. 261; 
 Clark v. Condit, 3 C. E. Green, 358; Pritchard v. Elton, 38 Conn. 
 434; Wilson v. Drumrite, 21 Mo. 325 and see Glendenning v. 
 Johnson, 33 Wis. 347, for an exceptional case. 
 
 9 Yates v. Id., 21 Wis. 473; Cottrell v. Long, 20 Ohio, 464; 
 Danzeisen's Appeal. 23 P. F. Sm. 65; Mclntyre v. Shaw, 6 Allen, 
 «3; Church v. Cole, 36 Ind. 35. ' 
 
276 MORTGAGE SECURITY. 
 
 ecuted on and after the 1st November, 1882, by the 
 joint operation of the Acts of 1878 and 3882. 
 Definition of Sect. 4 of the Bills of Sale Act of 1878 defines bills of 
 bills of sale, sale to include bills of sale, assignments, transfers, de- 
 clarations of trust without transfer, inventories of 
 goods with receipt thereto attached, or receipts for 
 purchase moneys of goods, and other assurances of 
 personal chattels, and also powers of attorney, authori- 
 ties, or licenses to take possession of personal chat- 
 tels as security for any debt, and also any agree- 
 ment, whether intended or not to be followed by the 
 execution of any other instrument, by which a right 
 in equity to any personal chattels, or to any charge or 
 security thereon, and then proceeds to enumerate a 
 variety of other instruments which are not to be in- 
 cluded within the meaning of the expression Bill of Sale. 
 Sect. 3 of the Act of 1882 provides that "Bills of Sale" 
 and other expressions in that Act have the same mean- 
 ing as in the " principal Act," i.e., the Act of 1878, ex- 
 cept as to bills of sale or other documents mentioned in 
 section 4 of the principal Act, which may be given 
 "otherwise than by way of security for the payment of 
 money," to which last-mentioned bills of sale and other 
 documents the Act of 1882 does not apply. 
 
 See on the subject of Bills of Sale the following im- 
 portant cases: Davis v. Burton (11 Q. B. Div. 537); 
 Hetherington v. Groom (13 Q. B. Div. 789) ; Roberts v. 
 Roberts (13 Q. B. Div. 794); Allam v. Munday (14 Q. 
 B. Div. 43); Ex parte Close (14 Q. B. Div. 386); Ex 
 parte Parsons (16 Q. B. Div. 532); Ex parte Stanford 
 (17 Q. B. Div. 259); Davis v. Bees (17 Q. B. Div. 408); 
 ReMorrit (18 Q. B. Div.- 222). 
 
(277) 
 
 ^Mortgage. [*175] 
 
 Sale by the Court. 
 
 "UNION BANK OF LONDON o. INGRAM. 
 (20 Ch. Div. 463.) 
 
 The Court has now, under the Conveyancing Principle. 
 Act, 1881, s. 25, jurisdiction to order a sale of 
 mortgaged property at any time before the fore- 
 closure has become absolute. 1 
 
 The Union Bank of London, as second mortga- Summary of 
 gees brought an action for redemption and fore- facts- 
 closure of certain property against the first mort- 
 gagee in possession, six subsequent incumbrancers, 
 and the trustee in bankruptcy of the mortgagor. A 
 complicated judgment was made, allowing succes- 
 sive rights of redemptions and foreclosures to the 
 Bank, the six incumbrancers, and the trustee in 
 bankruptcy. The Bank redeemed the first mort- 
 gagee, and then applied to the Court for an order 
 for sale. Evidence was produced that the utmost 
 value of the property was less than the amount due 
 to the Bank. The Court of Appeal decided that 
 the property should be sold. 2 
 
 In this case there was no opposition to the order for 
 Bale sought for by the Bank, but the only question was 
 whether there was jurisdiction to make the order, and 
 this was answered in the affirmative by the Court of 
 Appeal. 
 
 1 In the Federal courts the sale is usually made by the mar- 
 shall of the district or by a master especially appointed. Jones 
 on Mortgages, Sect. 1608; Blossom v. Railroad Co., 3 Wallace, 
 196. A sheriff, master, trustee or referee when making the sale 
 is acting as the agent of the Court. Mayer v. Wick, 15 Ohio, 
 548; Heyer v. Deaves, 2 Johns. Ch. 154. 
 
 2 It may sometimes happen that the mortgages describes the 
 property in separate parcels and the amount due on the mortgage 
 might be raised by a sale of a portion of the property; it may, 
 however, be necessary for the protection of the rights of subse- 
 quent incumbrances that the property should be sold altogether. 
 Gregory »;. Campbell, 16 How. 417. 
 
278 
 
 MORTGAGE SALE BY THE COURT. 
 
 Conveyancing 
 Act, 1881, 
 sect. 25. 
 
 {•176] 
 
 Effect ot the 
 section. 
 
 Order for 
 sale before 
 trial. % 
 
 The 25th section of the Conveyancing Act, 1881, 
 which was considered by the Court of Appeal in the 
 leading case as materially enlarging the power con- 
 tained in the now repealed Chancery Procedure Act 
 (15 & 16 Vict. c. 86), provides that 
 
 (1) Any person entitled to redeem mortgaged prop- 
 erty, may have a judgment or order for sale instead 6f 
 for redemption in an action brought by him either for 
 redemption alone, or for sale alone, or for sale or re- 
 demption, in the alternative. 
 
 -fc (2) In any action whether for foreclosure or for 
 redemption or for sale or for the raising and paymecit 
 of any manner of mortgage money, the Court, on the 
 request of the mortgagee, or of any person interested 
 either in the mortgage money, or in the right of re- 
 demption, and notwithstanding the dissent of any other 
 person and notwithstanding that the mortgagee or any 
 person so interested does not appear in the action and 
 without allowing any time for redemption or for pay- 
 ment of any mortgage money, may, if it thinks fit, di- 
 rect a sale of the mortgaged property on such terms as 
 it thinks fit, including if it thinks fit the deposit in 
 Court of a reasonable sum fixed by the Court to meet 
 the expenses of sale and to secure performance of the 
 terms. 8 Sub- section 3 enables the Court to order secu- 
 rity for costs. 
 
 The Court considered in the leading case that the 
 words " instead of foreclosure " were designedly omitted 
 after the words " direct a sale;" it was accordingly held 
 that a sale could be ordered at any time before the 
 judgment for foreclosure became absolute. " The Act," 
 the Court said, "is an enabling and remedial statute," 
 giving the Court a very beneficial power, and that it 
 ought therefore to be construed liberally. " One effect 
 of it," said Jessel, M.K., " is to allow a mortgagor 
 whose property is worth more than the mortgage 
 money but who cannot raise it to obtain a sale and get 
 the benefit of the surplus. The Court has power to 
 impose terms so as to take care that no injustice shall 
 be done to anyone, and I think that the legislature has 
 given it jurisdiction to make the order at any time be- 
 fore foreclosure absolute." 
 
 In Woolley v. Coleman (21 Ch. D. 169), it was held 
 that the Court had power in a redemption action to 
 make an order for sale on an interlocntory application 
 before the trial of the action. In this case security for 
 
 3 Goldsmith v. Osborne, 1 Eds. (N. Y.) Ch. 560; Md. Building 
 Society v. Smith, 41 Md. 516. 
 
MORTGAGE SALE BY THE COURT. 279 
 
 costs was ordered, but in Davies v. Wright (32 Ch. D. 
 
 220), where an equitable mortgagee asked for a sale, 
 
 the judge to whom the question was left by consent 
 
 gave the conduct of the sale to the defendant, the mort- Conduct of 
 
 gagor, as it was more to his interest that the best price sale. 
 
 should be obtained, and considered that security for 
 
 costs need not be given. 4 
 
 In Wade v. Wilson (22 Ch. D. 235), where the 
 plaintiff at the trial of a foreclosure action asked for 
 a sale and the defendant did not appear, the Court 
 ordered an account of what was due to the plaintiff to 
 be first taken and then that only so much of the prop- 
 erty should be sold as would be sufficient to satisfy the 
 plaintiff's claim. 5 
 
 The authority of the leading case of the Union Bank 
 v. Ingram was cited in vain in The Merchant Banking 
 Company of London v. The London and Hanseatic 
 Bank (55 L. J. Ch. 479). There there was an action 
 for foreclosure by a first mortgage of a building estate 
 ' at Manchester. The estate was insufficient to cover the 
 first mortgage, but the second mortgagees and the 
 mortgagor produced evidence that the value of the 
 property had increased and was likely to increase con- 
 tinuously by reason of the Manchester Ship Canal Act, 
 and they asked for a sale, offering at the same time to 
 pay into Court a sum sufficient to cover the costs. 
 The Court considered that the -fa discretion which the [-^-177] 
 Court had reposed in it by sect. 25 of the Conveyancing 
 Act, 1881, ought to be judicially exercised, that it was 
 not just that the rights of the mortgagee should be 
 postponed by a speculative sale, and the application 
 must therefore be refused. 
 
 The remedy of an equitable mortgagee by deposit of Mortgagee 
 title deeds independently of the Conveyancing Act was b ^ deposit 
 considered in James v. James (L. ft. 16 Eq. 153),wbere deeds, 
 the official records were consulted; Backhouse v. Charl- 
 ton (8 Ch. D. 444), York Union Banking Co. v. Artley 
 (11 Ch. D. 205) (and see other cases referred to in 
 Seton on Decrees, 4th ed. p. 1133), where it was held 
 that when the deposit is accompanied by an agreement 
 
 * The costs depend very much on the statutes and practice of 
 the different States and are generally within the discretion of the 
 Court. Garr v. Bright. 1 Barb. 157; Jones on Mortgages, Sect. 
 1603. 
 
 5 A sale in parcels may be required by statute or by the court, 
 and in determining how the premises shall be sold, the court 
 will direct the sale to be made in such manner that the parties 
 having equities subject to the mortgage shall not be prejudiced. 
 Blazey o. Bright, 74 111. 299; De Forest v. Farley, 62 N. Y. 628, 
 
280 CONSOLIDATION OF MORTGAGES. 
 
 to execute a legal mortgage, the equitable mortgagee 
 is entitled either to foreclosure or sale, but it is to be 
 remembered that by sect. 2, sub-sect. 6, of the Convey- 
 ancing and Law of Property Act, 1881, mortgage is 
 defined to include " any charge on any property for se- 
 curing money or monev's worth;" and in Oldham v. 
 Stringer (33 W. R. 251) it was held that the effect of 
 the 25th section of the Conveyancing Act, when taken 
 in conjunction with this extended definition of the term 
 mortgage, is to enable the Court to order a sale in lieu 
 of a foreclosure at the request of an equitable mort- 
 gagee by deposit of deeds, though the deposit was not ac- 
 companied by any agreement to execute a legal mortgage. 
 The position of a mortgagee exercising his power of 
 sale was much considered in Warner v. Jacob (20 Ch. 
 D. 220), where it was held that a mortgagee in exercis- 
 ing his power of sale is not, except as to the surplus of 
 the proceeds of sale over the mortgage money, a trus- 
 tee for the mortgagor even if the mortgage is in the 
 form of a trust for sale, and that if he exercises his 
 power bona fide for the purpose of realising his debt, 
 without corruption or collusion with the purchaser, the 
 Court will not interfere even though the sale be very 
 disadvantageous, unless the price is so low as to be evi- 
 dence of fraud. In Martinson v. Clowes (21 Ch. D. 
 857, affirmed W. N., 1885, p. 41) the property was sold 
 in lots by auction by a building society who were mort- 
 gagees selling under their power of sale, and their sec- 
 retary openly bid for and purchased two lots on his own 
 account, and it was held that the sale must be set aside. 
 
 [ if 178] -k Consolidation of Mortgages. 
 
 JENNINGS v. JORDAN. 
 (6 App. CAS. 698.) 
 
 Principle The Court leans against the extension of the 
 
 doctrine of the consolidation of Mortgages. 1 
 
 Summary of Thomas Tale mortgaged Blackacre to Men-it, and 
 facts. settled the equity of redemption on his daughter on 
 
 1 See Thomas' Appeal, 6 Casey, 378; Anderson v. Neff, 11 S. 
 & R. 208; Lamson v. Sutherland, 13 Vt. 309; Phelps v. Ells- 
 worth, 3 Day, 397; Rowan r. The Sharp's Rifle Mfg. Co., 39 
 Conn. 282. 
 
CONSOLIDATION OF. MORTGAGES. .281 
 
 her marriage. He subsequently mortgaged White- 
 acre to John Tale. The two mortgages became 
 vested in Jennings. The question was whether 
 Jennings had a right to consolidate the two mort- 
 gages as against the persons entitled under the set- 
 tlement, and the House of Lords held that he had 
 no such right. 2 
 
 *&*■ 
 
 The general principle on which the doctrine of con- 
 solidation of mortgages is based was thus stated by 
 Lord Selborne in his judgment in the leading case (in 
 which the decision of the Court of Appeal in 1858 in 
 Tassell v. Smith (2 De G. & G. 713) was overruled): — 
 
 "A mortgagee, who holds several distinct mortgages statement of 
 under the same mortgagor, redeemable, not by express the principle 
 contract, but only by virtue of the right which (in °f consolida- 
 English jurisprudence is called ' Equity of redemp- 
 tion') may within certain limits and against certain 
 persons (entitled to redeem all or some of them) 'con- 
 solidate ' them, that is, treat them as one, and decline 
 to be redeemed as to any unless he is redeemed as to 
 all." 
 
 " This doctrine of consolidation," Lord Selborne went 
 on to say," is well established,and cannot now be altered 
 except by the legislature, whether it originally rested 
 on a sound equitable foundation or not." 3 It may be 
 here noted that this judgment was delivered shortly be- 
 fore the passing of the Conveyancing and Law of Pro- 
 perty Act, 1881, which came into operation 1st Jan. 
 1882, and, as we shall presently shew, modified to some 
 extent the law as to consolidation. 
 
 The reason for the rule is thus explained in the judg- Reason for 
 ment of the Court of Appeal in the leading case (13 the ru l e - 
 Ch. Div. 646). The rule of consolidation proceeded on 
 the equitable principle that a Court of Equity would 
 not assist a mortgagor in getting back one of his es- 
 tates unless ^r he paid all that was due, though secur- r -^ 179] 
 ed on & different estate. The mortgagor was coming 
 
 2 Consolidation of mortgages is somewhat similar to the doc- 
 trine of tacking, both of which are extremely harsh and inequit- 
 able and do not exist to any extent in the United States. Park- 
 istu. Alexander. 1 Johns. Ch. 399; 4 Kent's Com. 178 and 179; 
 Green v. TJ. S. Bank, 1 Cai. Cas. in Error, 112. 
 
 3 The doctrine appears to be doubtful and will not he extend- 
 ed or encouraged. See cases under note 1. The doctrine is re- 
 cognized in Connecticut. See Chamberlain v. Thompson, 10 
 Conn. 251. 
 
282 CONSOLIDATION OF MORTGAGES. 
 
 into a Court of Equity to obtain its assistance in get- 
 ting back an estate which at law belonged to the mort- 
 gagee, and it was held to be inequitable to allow him to 
 get back an estate of more value than the debt charged 
 on it, and to leave the mortgagee with an estate charged 
 with a debt due by the mortgagor which might be of 
 larger amount than the value of the estate, 
 
 The doctrine, the Lord Chancellor pointed out, ap- 
 plied when all the mortgages, whether originally made 
 to the same mortgagee or having come into the same 
 hand by subsequent transfers, are redeemable at the 
 same time by the same person. It also applied to the 
 case where, after that state of things had once existed, 
 the equities of redemption had become separated by the 
 act of the person in whom they had been combined. 
 The purchaser of an equity of redemption must take 
 it as it stood at the time of his purchase, subject to all 
 other equities which then affected it in the hands of his 
 vendor, of which the right of the mortgagee to consoli- 
 date his charge on that particular property with other 
 charges then held by him on other property at the same 
 time redeemable under the same mortgagor was one. 4 
 The mortgagee cannot lose that right, because the mort- 
 gagor thinks fit to separate the equities of redemption. 
 
 The question to be decided _in the leading case was 
 whether the right to consolidate existed, 5 where the 
 mortgage on one property was not created till after the 
 equity of redemption in the other property had been 
 parted with, in other words, whether the right of the 
 purchaser of the equity of redemption ought to be af- 
 fected by claims to consolidate arising out of acts of the 
 mortgagor subsequent to the sale, and this point was 
 after an elaborate review of the authorities decided in 
 the negative. 
 
 In Harter v. Coleman (19 Ch. D. 630), the problem 
 which the Court had to determine was thus stated by 
 Fry, J.:— 
 
 "A mortgagor mortgages Whiteacre to A, and he 
 mortgages Blackacre to B. He then conveys the equity 
 of redemption in Whiteacre to C, and subsequently A 
 
 4 Equity or redemption exists in favor of any one who has an 
 interest in land and would be the loser by a foreclosure. Scott 
 v. Henry, 13 Ark. 112; Farnum v. Metcalfe, 8 Cush. 46; Bogute. 
 Colburn, 27 Barb. 330; Piatt v. Square, 12 Metcalfe, 494. 
 
 5 A doctrine somewhat similar to that of consolidation and 
 tacking is where a mortgage is given to secure future advances. 
 United States v. Hooe, 3 Cranch, 89 ; Allen v. Lathrop, 46 Ga. 
 133 ; Ladue v. The Eailroad Co., 13 Mich. 380 ; Bank of Com- 
 merce's Appeal, 8 Wright, 423. 
 
CONSOLIDATION OF MORTGAGES. 288 
 
 and B both assign their first mortgage to D, or which 
 ■would come to tbe same thing, B transfers his mortgage 
 to A. Can D in the one case or can A in the other consoli- 
 date the mortgage as against C, the assignee of the 
 equity of redemption of one of the two mortgaged 
 properties?" 
 
 It will be noticed that the two cases differ in this re- 
 spect. In Jennings v. Jordan the assignment of the 
 equity of redemption 01 Whiteacre took place before 
 the mortgage on Blackacre. In Harter v. Coleman the 
 assignment of the equity of redemption was subsequent 
 to the mortgage on Blackacre. 
 
 In both cases however there was the same essential 
 element in common, that the assignment of the equity 
 of redemption was previous to the union of the mort- 
 gages in the same person. 
 
 This question was considered in the judgment on 
 principle as well as on authority. The principle on 
 which the Court proceeded with -^. regard to the con- [ -fa 180] 
 solidation of mortgages, was that the mortgagor or his 
 assignee when asking for the assistance or the mercy of 
 the Court on the ground of his equity, must himself do 
 equity. The question then was, what equity must he 
 do? And here the cases were held to establish the 
 principle that the assignee was only subject to those 
 equities to which his assignor was liable at the dato of 
 the assignment, and that the contingency of a right to 
 consolidate arising out of the subsequent union of the 
 two mortgages is not an equity, it is the possibility or 
 contingency of an equity, but it is not an equity. The 
 equity does not exist until that contingency has happened. 
 
 And again, in a subsequent part of the judgment (19 
 Ch. D. 639), Fry, J., said, " My decision rests on this — 
 the purchaser of an equity of redemption from the 
 mortgagor takes it subject to all the equities which af- 
 fected it in the hands of the assignor at the time of the 
 assignment, but not to any equities subsequently aris- 
 ing. The equity to consolidate arising from a subse- 
 quent union in the same person of that mortgage with 
 another is not an equity which was then subsisting, and 
 therefore it is not one of the equities subject to which 
 the equity of redemption was purchased." 
 
 In Andrews v. City Permanent Benefit Building Society 
 (.44 L. T. (N.S.) 641) it was held that notice of a cov- 
 enant to observe the rules of the society, one of which 
 provided that in case the society " should hold from a 
 member more than one mortgage, such member should 
 not have power to redeem one property alone without 
 
.284 CONSOLIDATION OF MORTGAGES. 
 
 the consent and concurrence of the board," enabled the 
 society to consolidate against a second mortgage, al- 
 though one of the mortgages was subsequent in date to 
 the security of the second mortgagee. 
 Conveyancing Sect. 17 of the Conveyancing and Law of Property 
 Act, 1881, Act, 1881, provides that (1) a mortgagor seeking to re- 
 sect. 17. deem any one mortgage, shall, by virtue of this Act, be 
 entitled to do so, without paying any money due under 
 any separate mortgage made by him, or by any person 
 through whom he claims, on property other than that 
 comprised in the mortgage which he seeks to redeem. 
 (2) This section applies only if and as far as a con- 
 trary intention is not expressed in the mortgage deeds 
 or one of them. The effect of this section is to render 
 the application of the doctrine of consolidation a ques- 
 tion of contract between the parties, and in the absence 
 of a contract to exclude the Act there will be no con- 
 solidation. 
 
 In De Caux v. Skipper, Tee v. De Caux (31 Ch. Div. 
 it was held, overruling Claphamv. Andrews (27 Ch. D. 
 679), that in. cases where there was no consolidation 
 the costs of a redemption action must be apportioned 
 rateably between the properties. 
 
 The current of modern decisions has been against the 
 extension of the doctrine of consolidation. 6 It has been 
 held not to apply unless default has been made on all 
 the securities in respect of which consolidation is 
 claimed, Cummins v. Fletcher (14 Ch. Div. 699), nor to 
 a bill of sale so as to enable the grantee to apply the 
 surplus proceeds of a sale to a prior mortgage, and thus 
 [ ~J{ 181] defeat the rights of the execution -fa creditor, Ches- 
 worth v. Hunt (5 C. P. D. 266), nor to a case where one 
 of the mortgage securities (a leasehold) ceased to exist, 
 In re Raggett (16 Ch. D. 117), nor (but see Barroio v. 
 Manning, W. N. 1880, 108) was consolidation allowed 
 so as to interfere with the rights of persons claiming 
 under a voluntary settlement of one of the properties, 
 In re Walhampton Estate (26 Ch. Div. 391), and see 1 
 also Baker v. Gray (1 Ch. D. 491), Cracknallv. Janson 
 (11 Ch. Div. 1), Bird v. Wenn (33 Ch. D. 215), for 
 other modern cases where it was held that there was no 
 right of consolidation. The doctrine of consolidation 
 of mortgages applies to legal or equitable, to real and 
 personal property, and in an action whether for fore- 
 closure or redemption; and see, further, Coote on Mort- 
 gages for other applications of the rule. 
 
 6 See cases cited under Note 1. See also Maish v. Lee and 
 Notes 1 Lead. Cas. Eq. 615 (4th Eng. Ed). 
 
(285) 
 
 Mortgagee's Costs. 
 
 NATIONAL PROVINCIAL BANK OF ENGLAND v. 
 GAMES. 
 
 (31 Ch. Div. 582.) 
 
 A mortgagee is entitled to be allowed all costs Principle 
 which he reasonably incurs in relation to the 
 mortgage debt. 1 
 
 Games deposited with the Bank certain title deeds Summary of 
 and writings accompanied by a memorandum by facts - 
 which he charged the lands to which the deeds and 
 writings related, and agreed upon request to exe- 
 cute a legal mortgage. The Bank commenced an 
 action in the Queen's Bench Division for the bal- 
 ance due from Games, and recovered judgment for 
 the amount due, and costs to be taxed. 
 
 A surety had given a promissory note for part of 
 Games's debt to the Bank, and after the judgment some 
 correspondence, took place with the surety, from whom 
 nothing could be recovered. The Bank called upon 
 Games to execute legal mortgages, and prepared the 
 deeds and corresponded with Games, who refused to 
 execute the mortgages. 
 
 The Bank then commenced an action for foreclosure 
 against Games, -^ and claimed to be entitled to the fol- [ -^ 182] 
 lowing charges: (1) Costs of the action in the Queen's 
 Bench Division. (2) Costs of correspondence with the 
 surety. (3) Costs of investigating Games's title. (4) 
 
 1 A decree which simply orders the payment of the sum due, 
 without finding the amount is erroneous. Tompkins v. Wiltber- 
 ger, 56 111. 385 ; and a mortgagee is not entitled to costs of a 
 foreclosure which has proved defective through an error of his 
 own, whereby a new foreclosure is rendered necessary. Schmidt 
 v. Potter, 35 Iowa, 426. The mortgagee, whether he be defend- 
 ant or complainant, if he obtains the decree, is entitled to the 
 costs of the suit. Concklin v. Coddington, 1 Beas. (N. J.) 250; 
 Benedict v. Gilman, 4 Paige, 58 ; and without reference to suc- 
 cess, see Slee v. Manhattan Co., 1 Paige, 48. 
 
286 
 
 mortgagee's costs. 
 
 Costs of 
 action in 
 Qneen's 
 Bench Divi- 
 
 Costs of in- 
 vestigation 
 of title. 
 
 Cost of 
 preparing 
 the mortgage 
 deed. 
 
 Costs of preparing the legal mortgages. (5) Costs of 
 correspondence with Games as to the legal mortgage. 
 The Court of Appeal disallowed items (1) and (3), but 
 allowed items (2), (4), and (5). 
 
 The Court of Appeal in this case, in which it very 
 materially altered the decision in the Court below, pro- 
 ceeded on the principle laid down by Lord Cottenham 
 in Dryden v. Frost (3 My & Cr. 670, 675) in the fol- 
 lowing terms: "The Court, in settling the account be- 
 tween a mortgagor and mortgagee, will give to the lat- 
 ter all that his contract, or the legal or equitable con- 
 sequences of it, entitle him to receive, and all the costs 
 properly incurred in ascertaining or defending such 
 rights, whether at law or in equity." In Detillin v. 
 Gale (7 Vesey, 583, 585) Lord Eldon says that the 
 " mortgagee ought to be indemnified to the extent that 
 he acts reasonably as mortgagee; which must mean 
 reasonably with respect to such rights as his mortgage 
 title gives him." '' 
 
 The costs of the action in the Queen's Bench Divi- 
 sion (item (1) ) were disallowed on the ground that 
 they were excluded by the special terms of the order 
 made for taxation, which had only given charges and 
 expenses incurred after a certain date, and the costs in 
 question incurred before that date had not been taxed 
 until afterwards. The costs of the investigation of the 
 title (item (3) ) were also disallowed. If, said the 
 Court of Appeal, the contract had been to call upon the 
 mortgagor to get in the legal estate wherever it was, 
 an investigation of title might have been necessary; but 
 as the mortgagor only agreed to mortgage his estate 
 and interest, it was unnecessary to look into the title 
 any further than to see in what form the mortgages 
 ought to be drawn. 
 
 Item (4), viz. the costs of the preparation of the 
 legal mortgage, were allowed by the Court of Appeal. 
 It had been argued that the rule that a mortgagee was 
 to have his costs did not apply to the costs of proceed- 
 ings between the mortgagor and mortgagee. The Court 
 of Appeal declined to accede to this argument. The 
 plaintiffs had an equitable mortgage containing an 
 agreement to execute a legal mortgage. They reason- 
 
 2 If the mortgagee acted oppressive and demanded a larger 
 sum than was due costs will be denied him, and in some cases 
 awarded against him. Lage i. Van Doren, 14 N. J. Eq. 208 ; 
 Van Buren v. Olmstead, 5 Paige, 9 ; or he may be made to pay 
 the full costs if he has rejected a tender of the full amount due 
 him. Pratt v. Stiles, 4 Abb. (N. Y.) Pr. 150. 
 
mortgagee's costs. 287 
 
 ably demanded a legal mortgage, and therefore their 
 costs in relation to it ought to be allowed. " They will 
 be allowed any charges and expenses properly incurred 
 in or in reference to the preparation of the drafts, 
 which will give them all they are entitled to in respect 
 of such inspection of the 'deeds as was necessary." 
 
 The Court then dealt with items (2) and (5), viz. Costs of 
 (2) the cost of the correspondence with the surety, and correspon- 
 (5) the costs of the correspondence with Games, the ^f with 
 mortgagor, as to the preparation of the legal mortgage, 
 With regard to the costs of the correspondence with Costs of 
 the surety it had been contended that as the mortgagee correspon- 
 had two distinct positions— that of a creditor, and of a ^ortwr 
 person holding security — he could not charge against 
 the mortgagor his costs incurred in the latter charac- 
 ter, -fa To this the Court of Appeal answered: "A [ -^ 183] 
 mortgagee is a creditor, he has also a security for the 
 debt, and whether he is trying to get Ms money from 
 the mortgagor, or from a surety, or out of the mort- 
 gaged property, he is trying to enforce his rights as 
 mortgagee. The costs of the correspondence with the 
 surety must therefore be allowed. The costs of the 
 correspondence with the mortgagor are even more 
 clearly relative to the position of the plantiffs as mort- 
 gagees." 
 
 The following passage from Seton on decrees, 4th ed. 
 p 1059, was cited with approval as containing a state- 
 ment of law justified by the authorities : "Both in fore- 
 closure and redemption actions the mortgagee is en- 
 titled to the costs of suit, and also to all costs properly 
 incurred by him in reference to the mortgaged prop- 
 erty, for its protection or preservation, recovery of the 
 mortgage money, or otherwise to questions between him 
 and the mortgagor, and to add the amount to the sum 
 due to him on his security for principal and interest. 
 The general rule is that the plaintiff in a foreclosure ac- 
 tion is only entitled, in addition to his account for prin- 
 ciple and interest, to an account of the costs in that ac- 
 tion, and that to entitle him to an account of further 
 costs he must make out a special case : Bolingbroke v. 
 Hinde (25 Ch. D. 795), where under the circumstances 
 it was held that the plaintiff had made out a sufficient 
 case for the allowance of further costs. 
 
 The subject of mortgagees' costs was also considered 
 in In re Watts, Smith v. Watts (22 Ch. Div. p. 12 and 
 13), where it was laid down that mortgagees cannot be 
 deprived of their costs unless they misbehave them- 
 selves, and that the fact that a mortgagee under a 
 
268 mortgagee's costs. 
 
 wrong impression of the law had bond fide made a claim 
 which could not be supported, and had been disallowed 
 by the Court, was no reason for depriving him of his 
 costs. 3 In the recent case of Bird v. Wenn (33 Ch. D. 
 219) it was held, following In re Watts, Smithy. Watts 
 (ubi supra), that "it was only in a rare case that costs 
 ought to be given against a mortgagee who brings for- 
 ward a case which is fairly open to argument." 
 
 In Johstone v. Cox (19 Ch. Div. 17) a question arose 
 as to the priority of incumbrancers; and the order orig- 
 inally made might have led, as the Court of Appeal, 
 "to a parody on the administration of justice" by sweep- 
 ing away the entire fund. An appeal was allowed as 
 a question of principle was involved, and the general 
 rule was laid down to be that " the costs of incumbran- 
 cers are allowed to be added to their securities if any 
 difficult questions arise as to the priority of incumbran- 
 cers, and so on ; and unless there has been something 
 vexatious or something unusual in his conduct, the in- 
 cumbrancer gets his costs if the fund is sufficient to pay 
 them." 
 
 The Court, however, has a discretion in priority cases, 
 and can order one or other of the parties to pay the 
 costs if a case for it is made out. Harpham v. Shack- 
 lock (19 Ch. Div. 207, 215). 4 
 
 In Crozier v. Dowsett (31 Ch. D. 67), where both 
 plaintiff and defendant lived in the same place, and an 
 action was brought to foreclose a mortgage for under 
 [*fc 184] £66, it was held, following Simons v. •£ McAdam (L. 
 K. 6 Eq. 324), that the plaintiff was only entitled to 
 such costs as he would have obtained in the County 
 Court. And see Scotto v. Heritage (L. It. 3 Eq. 212 ; 
 Brown v. Rye (L. E. 17 Eq. 343), where the costs of 
 proceedings in the Court of Chancery were allowed. 
 
 See further as to mortgagees' and trustees' costs, 
 ante p. 121. 
 
 3 Jones on Mortgages, Sect. 1603 ; Loftns v. Swift, 2 Sch. and 
 Lef. 642. 
 
 4 A second mortgagee ia ordinarily entitled to costs. Young v. 
 Id., 17 N. J. Eq. 161. 
 
(289) 
 
 Costs of Solicitor- Trustee. 
 
 In re CORSELLIS, LAWTON r. ELWES. 
 (34 Ch. Div. 675.1 
 
 A solicitor-trustee is not, as a general rule, and Principle. 
 in the absence of .express authorisation, entitled 
 to make any profits out of business which is done 
 by himself or his firm in matters relating to the 
 trust. 1 
 
 Where, however, business is done in an action, 
 whether hostile or not, or even in friendly pro- 
 ceedings on behalf of himself and his co-trustee, 
 the solicitor or his firm may receive the usual 
 charges if there has been no greater cost than 
 would have been incurred if the solicitor or his 
 firm had acted for the co-trustee alone. 2 
 
 A solicitor, who on the death of his co-trustee be- Summary of 
 
 came the sole trustee under a will which contained 
 no power to charge for professional services, claimed 
 to be entitled to costs in respect of four transactions. 
 1. Profit costs in respect of an application for the 
 maintenance of an infant on a summons by next 
 friend, in which the solicitor-trustee and his co- 
 trustee were respondents and in which the solicitor- 
 trustee's firm had acted through their London agents 
 as solicitors for the respondents. 
 , 2. Profit costs in respect of business done by the 
 
 facts. 
 
 1 It is a fundamental principle in the law of trusts that a trus- 
 tee cannot use the position for his own personal advantage. Kep- 
 ler v. Davis, 30 P. F. Sm. 157; Green v. Winter, 1 Johns. Ch. 
 36. This rule is enforced very strictly. Boerum v. Schenck, 41 
 N. Y. 182 ; Blauvel v. Ackerman, 5 C. E. Green, 141 ; Washing- 
 ton E. E. Co. v. Alexandria R. E. Co., 19 Grat. 592. 
 
 2 A trustee may employ a solicitor whenever it is necessary to 
 do so in the ordinary course of business. Bowen i>. Seegar, 3 W. 
 & S. 222 ; Sinclair v. Jackson, 8 Cowan, 543, and any allowance 
 to him is made in the discretion of the Court. Walker v. Id., 9 
 Wallace, 743 ; Berryhill's App., 11 Casey, 245. 
 
 19 MODERN EQUITY. 
 
290 COSTS OF SOLICITOR-TRUSTEE. 
 
 [ -fc 185] same -fa London agents for a receiver appointed in 
 the administration action. 
 
 3. The profit costs of the preparation by the so- 
 licitor-trustee's firm of leases which he had granted 
 as trustee of the estate. 
 
 The Court of Appeal decided that the solicitor- 
 trustee was entitled to the profit costs of the appli- 
 cation for maintenance, but not to any of the other 
 costs. 3 
 
 A further question arose as to whether the solici- 
 tor-trustee's partner must account to the trust es- 
 tate for fees received for manorial business in re- 
 spect of a manor belonging to the trust estate to 
 which the partner had been appointed steward by 
 the co-trustees. 
 
 The Court of Appeal held that as the partner had 
 received the fees as steward and not as solicitor, he 
 was not bound to account for them to the trust es- 
 tate. 
 
 Trustee may The principle is well established by a long series of 
 not profit by authorities, among which may be mentioned the cases 
 his office. of Robinson v . Pett (3 p. -\y 251) and Docker v. 
 
 Somes (2 M. & K. 664) that a trustee shall not make a 
 profit of this office, 4 and accordingly it has been held 
 that in the absence of any special authority trustees or 
 executors who are factors, brokers, commission agents, 
 auctioneers, or bankers cannot derive any profit in the 
 way of business from the estate committed to tbeir 
 charge. 5 (Lewin on Trusts, 8th ed. pp. 275-280, where 
 the authorities are collected). The general rule with 
 
 3 In the United States trustees are allowed their expenses rea- 
 sonably, and properly incurred. Toosle v. Mack, 2 Vt. 19; Mc- 
 Elheuny's Appeal, 10 Wright, 347; Green r. "Winter, 1 Johns. 
 Ch. 37. 
 
 4 He cannot buy up any debt or charge to -which the trust es- 
 tate is liable at less than is actually due thereon and then col- 
 lect the amount in full from the estate. Shoomaker v. Van 
 Wyck. 31 Barb. 457; Parshall's App., 15 P. F. Sm. 235; Michoud 
 v. Girod, 4 Howard, 503. 
 
 5 The rule is not as strict in the United States as in England 
 and trustees and other fiduciary officers are allowed compensa- 
 tion for their services. AVistar's App., 4 P. F. Sm. 63. The 
 amount is either fixed by statute or is regulated by the court to 
 which the trustee renders his account. For authorities see Perry 
 on Trusts, sect. 918. 
 
COSTS OP SOLICITOR-TRUSTEE. 291 
 
 regard to the position of solicitor-trustees may be 
 stated as follows : a trustee whether expressly or con- 
 structively such, or an executor or administrator who is 
 a solicitor, caDnot charge for his professional labours, 
 is allowed nothing for his time or trouble, but will be 
 allowed merely his expenditure — his costs out of pocket, 
 unless there be a special contract or direction to that 
 effect 6 (Lewin on Trusts, 8th ed. 281); and the same 
 rule is also stated in In re Barber, Burgess v. Vinicome 
 (34 Oh. D. 77, 81), and in the leading case, 34 Ch. 
 Div. 681. This principle, as was stated in the former 
 of these cases, is based upon the consideration that the 
 Court of Equity will not allow a man to place himself 
 in a position in which his interest and duty are in con- 
 flict. If it were not the rule, a trust estate might be 
 heavily burdened by reason of business being done by 
 a trustee or executor employing himself on behalf of 
 the estate.' One of the principle exceptions to this gen- 
 eral rule was established by the decision of Lord Cot- 
 tenham in Cradock v. Piper (1 Mac. & G. 664), where it p, a pe ° v ' 
 was held not to apply to a case -fa where several co-trus- r .jl. 186] 
 tees were made defendants to a suit, this " being a mat- Trustees 
 ter thrust upon them and beyond their own control, so defendants 
 that one of the trustees who was a solicitor and acted m a sul "- 
 first for himself, second for his co-trustees, and thirdly 
 for the cestui que trust, was held entitled to receive the 
 full costs, it being admitted that the costs had not been 
 increased through his conduct. Lewin on Trusts, 8th 
 ed. p. '282 ; 34 Ch. D. 81. 
 
 In deciding the first question in the leading case, viz. Summons 
 that relating to the summons for maintenance, in the for main- 
 solicitor's favour, Cotton, L. J., expressed himself as fol- tenance. 
 lows : "It is said that the exception established by Cra- 
 dock v. Piper would only apply to costs in a hostile 
 action, and that this was not an action at all, but only 
 a summons, and that therefore the exception ought not 
 to apply. Undoubtedly the proceeding was not in any 
 hostile action, but was commenced by a summons ; but 
 in my opinion it would be frittering away the decision 
 which we ought not to overrule by saying that it only 
 applies to a hostile action, no such limitation being laid 
 down by Lord Cottenham. Therefore I am opinion 
 
 6 The same rule exists in the United States as to expenditures 
 and costs. But it they are incurred unnecessarily and against 
 the remonstrances of the cestui que trust they will not be allowed. 
 Berryhill's App., 11 Casey 245; "Walker v. "Walker, 9 "Wallace, 743. 
 
 'See contra, Stearley's App., 38 Pa. St. 525, and Lowne's App., 
 1 Grant, 373. 
 
292 
 
 COSTS OF SOLICITOR-TRUSTEE. 
 
 Receiver's 
 accounts. 
 
 Costs of 
 
 preparing 
 
 leases. 
 
 Memorial 
 fees. 
 
 I * 187] 
 Older cases 
 on the 
 subject. 
 
 that the rule by way of exception established in Cra- 
 dock v. Piper does apply to the first part of the costs. 
 Those costs the defendant the trustee ought not to be 
 required to bring into account." 8 
 
 The seoond item, viz. the " profit costs " for work 
 done by the trustee's firm in respect of the passing of 
 the receiver's accounts, was disallowed by the Court of 
 Appeal on the following principle : — The receiver and 
 the trustee's firm acting for him were in a position not 
 hostile but adverse to the interest of the estate. The 
 two positions were inconsistent, as the duty of the trus- 
 tee was to get all he could from the receiver, and to 
 obtain the disallowance of any payments to which he 
 was not legally entitled, while the receiver was seeking 
 to avoid being charged with more than he admitted to be 
 due from him, and to maintain all his payments. The 
 previous case of Lincoln v. Windsor (9 Ha. 158), fol- 
 lowed by Whitney v. Smith (L. R. 4 Ch. 513), was dis- 
 tinguished on the ground that it did not appear there 
 that the trustee-solicitor was acting adversely to the 
 trust estate. 
 
 The third item, viz. the costs incurred with reference 
 to leases, was also disallowed, though they had been 
 paid by the tenants. The Court proceeded upon the 
 principle that although the costs were paid by the ten- 
 ants by arrangement in the ordinary course of business, 
 the business was done on the employment of the land- 
 lord, who in this case was the trustee himself. 
 
 With regard to the fees received by the trustee's 
 partner in respect of manorial business, the Court 
 considered that these fees, " fixed fees," " customary 
 manorial fees," did not arise from any duty which 
 the trustee ought to have discharged gratuitously to 
 the estate, and were not payment for costs in respect 
 of business where the trustee was acting in any way 
 adversely to the estate, and that, there being no sug- 
 gestion of improper conduct with regard them, the 
 trustee ought not be charged with the profits in respect 
 of them. 
 
 -^■In several of the older cases solicitor- trustees 
 have been allowed their costs under the special cir- 
 cumstances. It was held in Clack v. Carton (7 Jur. 
 (N.S. ) 441) that where one member of a firm of 
 solicitors, who was a trustee, employed his partner to 
 act as his solicitor in the trust business, under an 
 
 8 "It is a cardinal principle in the management of a trust that 
 the trustee may lose, hut he cannot gain." Bispham's Eq. (4th 
 ed.) Sect. 148. 
 
COSTS OF SOLICITOR-TRUSTEE. 293 
 
 agreement that the trustee should not participate in any 
 way in the profits of the business, the partner was en- 
 titled to his full costs. 
 
 A country solicitor defending a suit as trustee in 
 Chancery through his town agent was held entitled to 
 be allowed as against the estate that proportion of the 
 whole costs which his town agent would be entitled to 
 receive. Burge v. Bruttori (2 Ha. 373). 
 
 In Whitney v. Smith (L. E. 4 Ch. 513) a solicitor- 
 trustee who had sold out part of the trust estate and 
 invested it on mortgage, acted also for the mortgagor, 
 and it was held that he need not account to the estate 
 for the professional charges paid by the mortgagor. 
 
 In In re Ames, Ames v. Taylor (25 Oh. D. 72), a tes- 
 tator by his will empowered any trustee who might be 
 a solicitor to transact any business occasioned by the 
 trusts, powers, or provisions of his will, "whether such 
 business be usually within the business of a solicitor 
 or not," and "to make the usual professional or other 
 proper and reasonable charges for all business done and 
 time expended in relation thereto." The Court held 
 that, having regard to the terms of the will, a solicitor- 
 trustee was entitled to be allowed not only prof essior al 
 costs, but all costs and charges properly incurred, and 
 the matter was referred back to the Taxing Master to 
 review his taxation on that principle. 
 
 In re Ames was distinguished in Inre Chappie, New- 
 ton v. Chapman (27 Ch. D. 584). There a testatrix 
 appointed her solicitor, who prepared her will, one of 
 her two executors and trustees. She then stated that 
 it was her desire "that the said Ralph Chapman, who 
 is my solicitor, shall continue to act as such in the mat- 
 ters relating to my property and affairs, and shall make 
 the usual professional charges. I expressly direct that 
 he shall notwithstanding his acceptance of the office of 
 trustee and executor of this my will, and his acting in 
 in the execution thereof, be entitled to make the same 
 professional charges, and to receive the same pecuniary 
 emoluments and remuneration for all business done by 
 him, and all attendance, time, and trouble given and 
 bestowed by him in or about the execution of the trusts 
 and powers of my said will, or the management and ad- 
 ministration of my trust estate, real or personal, as if 
 he, not being himself a trustee or executor thereof, were 
 employed by the trustee or executor, and he shall be 
 entitled to retain out of my trust moneys, or to be al- 
 lowed and to receive from bis co-trustee (if any) out of 
 the same moneys, the full amount of such charges, any 
 
294 COSTS OF SOLICHOR-TEUSTEE. 
 
 rule of equity to the contrary notwithstanding, never- 
 theless without prejudice to the right or competency 
 of the said Ralph Chapman to exercise the authority, 
 control, judgment, and discretion of a trustee of my 
 said will." 
 
 The Court pointed out that the direction that the so- 
 [•^•188] licitor- trustee ^was to be allowed to make the usual 
 professional or other proper and reasonable charges 
 which was to be found in In re Ames (ubi supra), did 
 not occur in the present case, and expressed an opinion 
 that a form which had been referred to enabling the 
 solicitor to charge for business, "including all business 
 of whatever kind not strictly professional, but which 
 might have been performed or would necessarily have 
 been performed in person by a trustee not being a so- 
 licitor," was one which no solicitor ought to put in its 
 entirety into a will drawn by himself unless the testator 
 had expressly instructed him to insert those very words. 
 
 It was held in In re Donaldson (27 Ch. D. 544) that 
 where one of a body of mortgagees is a solicitor, and 
 acts as such in enforcing the mortgage security, he is 
 entitled to charge profit costs against the mortgagor 
 whether the mortgagees are trustees or not. "Trus- 
 tees," the Court said, "are obliged to protect their trust 
 property, and must of necessity frequently employ a 
 solicitor for that purpose, and they are entitled to the 
 costs they have so incurred. 9 I cannot allow that when 
 a solicitor happens to be a trustee he is to be treated as 
 for the time being suspended from practice or struck off 
 the Rolls so far as regards the matter in which he is a 
 trustee. I do not think a solicitor is to be deprived of 
 civil rights because he is a trustee. If he were a sole 
 surviving trustee and had to file a bill for foreclosure of 
 mortgaged property it could not be said he was not en- 
 titled to the cost of the suit, on the contrary, he would 
 be entitled to all his costs." 
 
 The cases of Cradock v. Piper and Broughton v. 
 Broughton (ubi supra) were recently considered in In re 
 Barber, Burgess v. Vinicome (34 Ch. D. 77). There a 
 testratrix appointed H , a solicitor, who was also one of 
 the attesting witnesses of the will, and her daughter 
 executor and executrix and trustees of her will, and de- 
 clared that H. should be entitled to charge and to receive 
 payment for all professional business to be transacted 
 by him under the will in the same manner as he might 
 have done if he had not been an executor. 
 
 The executrix proved the will, and a creditor's action 
 
 9 Lewin v. Eeid, 11 Ind. 239. 
 
COSTS OF SOLICITOR-TRUSTEE. 295 
 
 was instituted against 'her in -which she employed H.'s 
 firm as her solicitors. H. subsequently proved the will 
 and was made a defendant to the action. The question 
 arose, on an application made by the executrix, as to 
 whether H. was entitled, on the principle of Cradock 
 v. Piper, to profit costs up to the time when he was 
 made a defendant in the action, the Court having pre- 
 viously declared that as H. was an attesting witness, 
 the claUse*in the will allowing him professional charges 
 was rendered nugatory, but this declaration was made 
 "without prejudice to any of his rights apart from the 
 clause, in the will." Inquiry was made at the Taxing 
 Master's office, and it was found that the decision of 
 Cradock v. Piper (ubi supra) had always been acted 
 upon. The Court held that H. was entitled to profit 
 costs of the action, but not to profit costs for business 
 not done in the action, and that this principle must be 
 applied as well to costs incurred before as after the time 
 when he proved the will. 
 
 ■^■In London Scottish Benefit Society v. Chorley (13 Q. [ -fr 189] 
 B. Div. 872, affirming 12 Q. B. D. 452), it was held that Solicitor 
 when a solicitor brings or defends an action in person, appearing iu 
 he is entitled to the same costs as an ordinary litigant P erS011 - 
 appearing in person, subject to this restriction, that no 
 costs which are really unnecessary can be recovered. 
 
 " The key to the true view of the law of costs," the Coke on 
 Court of Appeal said, " is contained in a passage in Costs. 
 Lord Coke's Commentary. 'Here is express mention 
 made but of the costs of his writ, but it extendeth to 
 all the legal costs of the suit but not to the costs and 
 expenses of his travel and loss of time, and therefore 
 "costages" cometh of the verb " conster," and that 
 again of the verb " constare," for these " costages " 
 must " constare " to the Court to be legal costs and ex- 
 penses.' What does Lord Coke mean by these words? 
 His meaning seems to be that only legal costs which 
 the Court can measure are to be allowed, and that such 
 legal costs are to be treated as expenses necessarily 
 arising from the litigation and necessarily caused by 
 the course which it takes. Professional skill and la- 
 bour are recognised and can be measured by the law, 
 private expenditure of labour and trouble by a layman 
 cannot be measured. Professional skill when it is be- 
 stowed, is accordingly allowed for in taxing a bill of 
 costs. It would be absurd to permit a solicitor to charge 
 for the same work when it is done by another solicitor, 
 and not to permit him to charge for it when it is done 
 by his own clerk." 
 
296 
 
 SOLICITOR AND CLIENT. 
 
 Solicitor and Client. 
 
 Principle. 
 
 Summary of 
 facts. 
 
 [•190] 
 
 Mcpherson ». watt. 
 
 (3 App. Cas. 254.) 
 
 An English solicitor (like a " Scotch writer " 
 and " advocate of Aberdeen "') stands in a con- 
 fidential relation to his client, and any pur- 
 chase from his client in which the fact that he 
 is purchasing for himself is concealed, will be 
 set aside. 1 
 
 Two ladies, who were trustees and acted in the 
 trust principally through their brother Hugh Mc- 
 Pherson, were desirous of selling four houses. John 
 Watt, '' an Aberdeen advocate," who acted as agent 
 with regard to the + sale in question, advised Mc- 
 Pherson not to advertise the houses, and promised 
 to endeavour to find a purchaser. Shortly after- 
 wards he introduced Dr. Thomas Watt, his brother. 
 as purchaser, and a sale to him was effected for 
 £1900. The trustees believed that Dr. Thomas 
 Watt was the sole purchaser, but there had been a 
 previous arrangement between the brothers that 
 John Watt should have two of the houses at half 
 the price. Held, by the House of Lords, that the 
 sale must be set aside. 2 
 
 In this case, as was stated in the judgment of the 
 House of Lords, there was no controversy whatever as 
 to the law of the case, and no serious controversy as to 
 the fact. The only question was, how the law was to 
 
 1 Transactions between solicitor and client are subject to the 
 closest scrutiny and the onus of showing its fairness lies on the 
 solicitor who must prove the absence of undue influence. See 
 Henry v. Raiman, 1 Casey, 354. 
 
 ' 2 The utmost good faith is recognized on the part of a legal 
 advisor; the fear is lest the client might be imposed on. Trot- 
 ter ii. Smith. 59 111. 240; Smith i>. Brotherline, 12 P. F. Sm. 461; 
 but see Perry v. Dicken, 105 Pa. St. 83. 
 
SOLICITOR AND CLIENT. 297 
 
 be applied to the particular state of facts with which 
 the Court had to deal. The Scotch Court of Session, 
 reversing the decision of the primary Court, had held 
 that the transaction was valid. The House of Lords, 
 however, came to the conclusion that whether Watt 
 was a gratuitous adviser or a paid adviser, he was not 
 only an adviser but the only adviser in hac re, i.e. in 
 the particular transaction in question. That as there 
 was this confidential intercourse and fiduciary relation- 
 ship between them, full disclosure ought to have been 
 made; and as this had not been done the purchase 
 could not stand. 3 
 
 Lord Cairns, in delivering judgment, cited with ap- 
 proval the " pointed observations " made by Lord St. 
 Leonards in the case of Lewis v. Hilhnan (decided 
 some years before by the House of Lords, 3 H. L. C. 
 607, 630), which, as he said, did not lay down any new 
 rule of law, but simply re-stated well-established prin- 
 ciples which had already been applied in numerous 
 cases. " Take," said Lord St. Leonards, " the case of 
 a sale of any kind which is So fair, so reasonable as to 
 price, so entirely free from anything else that is ob- 
 noxious, as to be capable of being supported; yet if 
 there has entered into that sale this ingredient, that the 
 client has not been made aware that the real purchaser 
 is his law agent, if the purchase has been made in the 
 name of some other person for that law agent, that is a 
 sale that cannot be supported." 
 
 " Though," said Lord O'Hagan, " there has been the 
 completest faithfulness and fairness, the fullest infor- 
 mation, the most disinterested counsel and the fairest 
 price, and though the client has had the advantage of 
 the best professional assistance which if he had been 
 engaged in a transaction with a third party he could 
 possibly have afforded, if the purchase be made cov- 
 ertly in the name of another without communication 
 of the fact to the vendor, the law condemns and inva- 
 lidates it utterly. There must be uberrima fides be- 
 tween the attorney and the client, and no conflict of 
 .duty and interest can be allowed to exist." 4 
 
 " The law, both in England and in Scotland," said 
 Lord Blackburn, -fa "is that in such cases we do not [ -^ 191] 
 enquire whether it was a good bargain or a bad bar- 
 
 3 The rule will apply so long as the relation of solicitor and 
 client continues and even after it has ceased, if the transaction 
 takes place under the influence of that relation. Bispham's Eq. , 
 Sect. 236, and Henry v. Raiman (supra). 
 
 4 Bispham's Equity (4th Ed.), Sec. 236. 
 
298 SOLICITOR AND CLIENT. 
 
 gain before we set it aside. The mere fact that you, 
 being in circumstances which made it your duty to give 
 your client advice, have put yourself in such a position 
 that being the purchaser yourself you cannot give dis- 
 interested advice, your own interests coming in conflict 
 with his, that mere fact authorizes him to set aside the 
 contract if he chooses so to do." 
 
 It must, however, be remembered that, as stated in 
 the judgment in this case (pp. 266-270), a solicitor is 
 not affected by the absolute disability to purchase which 
 attaches to a trustee; it is not impossible for him to 
 purchase the property of his client. " If he purchases 
 from his client," said Lord Blackburn, "in a matter 
 totally unconnected with what he was employed in be- 
 fore, no doubt an attorney may purchase from one who 
 has been his client just as any stranger may do, hon- 
 estly telling the truth and without any fraudulent con- 
 cealment, but being in no respect bound to do more 
 than any other purchaser would do. But when he is 
 purchasing from a person property with respect to 
 which the confidential relation has existed or exists, it 
 ,o becomes wrong of him to purchase without doing a great 
 
 deal more than would be expected from a stranger." 
 
 In all eases in which the circumstances render it the 
 solicitor's duty to give advice to his client, he cannot be 
 allowed to deal with his client without divesting him- 
 self of the character of solicitor and putting himself, as 
 it is said, " at arm's length " from his client. 5 
 
 The principle of the leading case was considered and 
 limited in a very peculiar manner in In re Cape Breton 
 Company (26 Ch. D. 221; affirmed 29 Ch. Div. 795). 
 In this case the Court held that there was no difference 
 in the many cases collected in the argument, beginning 
 with Rothschild v. Brookman (2 Dow. & C. 188), and 
 ending with Macpherson v. Watt, as to the rule of 
 the Court where an agent has bought or sold with- 
 out giving notice to his principal that he was the buyer 
 * or the seller of the property. The mere fact that the 
 agent does not disclose that he is a purchaser or seller, 
 or that he is interested in the purchase or sale, in cases 
 where the principal might say, " It was your duty to 
 give roe advice," gives the latter a right to say, " I have 
 an option to set the purchase aside if I please, or let it 
 stand if I prefer to do so. This may be a very fair and 
 proper bargain, but I do not choose to let it stand." 
 
 5 "The presumption of fraud is more or less strong according 
 to the peculiar relation which the parties occupy to each other." 
 Bispham's Eq. Sect. 234. 
 
SOLICITOR AND CLIENT. 299 
 
 The principal is entitled, if he does not choose to affirm 
 the contract, to rescind it. There, however, his rights 
 end. He is not entitled to say, "I 'will insist upon 
 holding you to the bargain and upon your paying me 
 back the excess of price which I contend I have paid you. 
 
 With regard to gifts to solicitors by their clients, the Gifts to 
 authorities are considered in Morgan v. Minet (6 Ch. solicitor. 
 D. 645). "The law," said the Court in that case, "is 
 as plainly settled on the subject as any law existing in 
 this country, that while the relationship of solicitor and 
 client subsists the solicitor cannot take a gift from his 
 client. 6 It is not said that the relation prevents a client 
 bestowing his bounty upon -fa his solicitor, but what the [ -fa 192] 
 law requires is that, considering the enormous influence 
 which a solicitor in many cases must have over his 
 client, in order to give validity and effect to a donation 
 from a client to his solicitor that relation must be 
 severed. If that can once be established, there is an 
 end to the influence; whatever the influence may have 
 been before need not be inquired into; and then the 
 client may as well give to a solicitor as give to any other 
 person. The degree of influence need not be inquired 
 into. The fact of the influence is enough if it be estab- 
 lished. These Courts have not those golden scales 
 which are said to be used in the mythological heaven 
 to regulate the destinies of mankind. . 
 
 "You cannot inquire how much influence there was; 
 it is enough, in the contemplation of the law, that the 
 influence existed, that there is a possibility that it may 
 be abused." 7 
 
 In Rhodes v. Bate (L. E. 1 Ch. 252), (a leading case 
 on the subject of dealings with persons in fiduciary re- 
 lations recently considered in Mitchell v. Homfray 8 Q. 
 B. Div. 587), it was laid down that a mere trifling gift 
 to a person standing in a confidential relation, or a 
 mere trifling liability incurred in favour of such a per- 
 son,, ought not to stand in the same position as a gift 
 of a man's whole property or a liability involving it; 
 mala fides must be shewn in order to set aside such a 
 benefit. To carry the principle to this extent, the Court 
 of Appeal said, would interfere too much with the 
 rights of property and disposition, and would be re- 
 
 6 A gift from a client to a counsel is void. See Greenfield's 
 Est., 2 Harris, 489, but a client may in his will make a gift to his 
 counsel even if the will be drawn by the counsel. Mitchell i>. 
 Homfray, 2 Lead. Cas. Eq. 390. 
 
 7 Merrit v. Lambert, 10 Paige, 352 ; Mott v. Horrington, 12 
 Vt. 199. 
 
300 
 
 CHARGE IN FAVOUR OP SOLICITOR. 
 
 Solicitor 
 taking 
 mortgage 
 Iroin client. 
 
 pugnant to the feelings and practice of mankind. A 
 solicitor may, however, in the absence of undue influ- 
 ence, 8 take a benefit under a will, and that even though 
 he himself may have prepared it: Walker v. Smith (29 
 Beav. 394), Hindson v. Weatherill (5 D. M. & G. 301); 
 see further on the subject of dealing between solicitor 
 and client, Hunter v. Atkins (3 My. & K. 113), Tom- 
 son v. Judge (3 Drew. 306), and Kerr on Fraud, pp. 
 114 et seq., where the authorities on the subject are 
 collected. 
 
 In Cockburn v. Edwards (18 Ch. Div. 449) it was 
 held that a solicitor lending money to his client and 
 taking security from him, must take it in the ordinary 
 form, unless he points out to his client anything that is 
 unusual; but this doctrine was held not to apply to a 
 case which was not an ordinary mortgage transaction, 
 but an arrangement for giving the client time for pay- 
 ing a debt presently payable, and where the solicitor 
 had inserted an immediate power of sale: Poolers Trus- 
 tee v. Whetham (33 Ch. Div. Ill, 122). 
 
 [*193] 
 
 •fa Charge in favour of Solicitor. 
 
 GREER „. YOUNG. 
 (24 Ch. Div. 545.) 
 
 Principle. The 28^A section of the Solicitors Act, 1860, 
 
 confers upon the Court a discretionary pdwer 
 to create a charge upon property recovered or 
 preserved. Such charge is independent of con- 
 tract and is in the nature of salvage. 
 
 Summary of 
 facts. 
 
 Mrs. Greer, her daughter, and certain infants were 
 the beneficiaries under the will of W. J. Greer, of 
 which Young and Pollock were joint trustees. Pol- 
 lock committed breaches of trust by which a large 
 portion of Greer's estate was lost. Pollock died in- 
 solvent in 1873, and in a suit of Middleton v. Pol- 
 
 8 Buchanan r. Gibbs, 26 Kansas, 277; McKinney v. Hensley, 
 74 Mo. 326; Falk v. Turner, 10 Mass. 494; Shawn. Ball, 55 Iowa, 
 55. 
 
CHARGE IN FAVOUR OF SOLICITOR. 301 
 
 lock, instituted the same year for the administra- 
 tion of his estate, a dividend in respect of the loss 
 occasioned by the breaches of trust was ultimately 
 obtained by Young. 
 
 In 18^4 Mrs. Greer and her daughter commenced 
 the present action, Greer v. Young, and obtained a 
 declaration that Young was jointly liable with Pol- 
 lock, which resulted in a dividend in Young's bank- 
 ruptcy. The Court of Appeal decided that the 
 solicitors who had acted in Greer v. Young, but not 
 in Middleton v. Pollock, were entitled to a charge 
 on the dividend recovered in Young's bankruptcy, 
 but not on the dividend recovered in Middleton v. 
 Pollock. 
 
 In the leading case the Court of Appeal, in. deciding Solicitors Act, 
 partly in favour of and partly against the charge which I860, sect, 
 was claimed by the solicitor, settled authoritatively the 28- 
 principle upon which the 28th section of " The Solici- 
 tors Act, 1860" (23 & 24 Vict. cap. 127), is to be inter- 
 preted. That section provides that "in every case in 
 which an attorney or solicitor shall be employed to 
 prosecute or defend any suit, matter or -fa proceeding r .jl. 194] 
 in any court of justice, it shall be lawful for the Court 
 or judge to declare such attorney or solicitor entitled 
 to a charge upon the property recovered or preserved, 
 and upon such declaration being made such attorney 
 or solicitor shall have a charge upon and against, and 
 a right to payment out of the property (recovered or 
 preserved) of whatsoever nature, tenure or kind the 
 same may be." The section then goes on to provide 
 that the Court or judge may make orders for taxation 
 of and for raising and payment of such costs, charges, 
 and expenses out the property, that all conveyances and 
 acts done to defeat or which shall operate to defeat 
 such charge or right shall, unless made to a bond, fide 
 purchaser for value without notice, be absolutely void, 
 and concludes with a proviso that "no such order shall 
 be made by any Court or judge in any case in which 
 the right to recover payment of such costs, charges, and 
 expenses is borrowed by any Statute of Limitations." 
 
 With regard to this last proviso, it was held in Baile 
 v. Baile (L. R. 13 Eq 497. 509) that the statute could 
 not run in the plaintiff's favour while the proceedings 
 
302 
 
 CHARGE IN FAVOUR OP SOLICITOR. 
 
 Discretion- 
 ary power 
 in the Court. 
 
 Principle of 
 salvage. 
 
 [*195] 
 
 were going on with the solicitor on the record as the 
 plaintiffs solicitor and the receiver in possession. 
 
 " The legislature," said Lord Selborne, in Pinkerton 
 v. Easton (L. E. 16 Eq. 490), "has given not a charge, 
 but a power to the Court to create a charge, for a 
 solicitor's costs, upon ' property recovered or preserved' 
 when meritorious services of the solicitor have resulted 
 in such recovery or preservation." The Act gives a 
 discretionary power to the Court. A solicitor has no 
 absolute right to the charge, but only power to ask the 
 Court in the exercise of its discretion to make the 
 charge. 
 
 The principle on which the Court proceeds in exer- 
 cising this discretionary power is next to be considered. 
 
 " The law of salvage — it was said in Bulley v. Bulley (8 
 Ch. Div. 479, 484) in language which was alluded to 
 •with approval by the Court of Appeal in the leading 
 case — is well enough known, depending upon plain 
 principles, not the subject of any particular statute 
 (except the Shipping Acts), nor depending upon any 
 statutory enactment. A ship at sea about to founder 
 is saved by some other vessel. Then there comes the 
 question of the right of the salvors to be paid the money 
 coming to them out of that ship and its contents. There 
 is no inquiry as to who is the owner of the ship. No- 
 body ever heard of such a thing. They may settle 
 among themselves their averages or anything else. The 
 law is, if you save a sinking ship, you shall be paid 
 what is just out of the value of that ship. That is the 
 principle of the Solicitors Act referred to, for the words 
 are distinct and clear, and carry into effect plainly that 
 principle." 
 
 "The section," said the Court of Appeal in the lead- 
 ing case (24 Ch. Div. 556), "is a very general one. It 
 applies to every case in which a solicitor is employed. 
 It authorises a charge, not on the mere interest of the 
 plaintiff but on all property recovered in the action 
 whatever for the plaintiff only, or for him in connection 
 with others. It -^ appears clear to me that it is a 
 salvage section. The Solicitor is treated as a salvor who 
 has recovered or preserved something in a time of dan- 
 ger by his work and labour. Into whatever hands it 
 may fall, it is charged with the salvage." 
 
 The Act does not allow the solicitor to be a mere vol- 
 unteer, but it is sufficient that he should be bonQ, fide 
 employed by some person interested. He must be a 
 solicitor — there is nothing in the Act which says that 
 he must be the solicitor of the person whose property is 
 
CHARGE IN FAVOUR OF SOLICITOR. 303 
 
 preserved, and it must be by reason of the employment 
 that the property is preserved for somebody ; in that 
 case the statute gives power to the Court to give him a 
 charge. Where the Court comes to the conclusion that 
 the property was recovered in the suit it is no objection 
 that the solicitor was not employed by the person whose 
 property was recovered, or that that person could not 
 have employed the solicitor. 
 
 It does not depend on contract. Contract does away 
 with the notion of salvage. Therefore it is immaterial 
 whether the property belongs to an infant; it is imma- 
 terial whether the person whose property is recovered 
 employed the solicitor. 
 
 Undoubtedly the quantum of the interest of the per- 
 son who employed the solicitor is an important element 
 of consideration. It is, generally speaking, the interest 
 of the plaintiff or of the defendant which is recognized- 
 in the action, and to determine whether a fund has been 
 recovered in the action it is material to consider what 
 is the interest of the plaintiff or defendant. But to say 
 that the Court has only to charge the interest of the 
 plaintiff or the defendant, would be to repeal the Act. It 
 will be for the Court to decide whether he has such an 
 interest as will justify a charge being made.' 
 
 In In re Wadsworth,Rhodes v. Sugden(29 Ch. Div. 517), Solicitor 
 it was held that a solicitor, when property has been re- discharged 
 covered or preserved in an action through his instrumen- r*"?. r 1 
 tality, is entitled to a charge under the Act, though his 
 client may have discharged him before the trial of the 
 action, but that in such a case his lien would be subject 
 to a charge of the solicitors for the time being. It was 
 held in the same case, however, that a sum of money 
 which had been paid into Court as security for the 
 plaintiff's costs, and which subsequently became repay- 
 able to him on the action coming to a successful issue, 
 was not property preserved within the meaning of the 
 Act; the judge expressing an opinion that the sum in 
 question had been imperilled and not preserved. 
 
 In Dallow v. Garrold, Ex parte Adams (13 Q. B. D. 
 543, affirmed 14 Q. B. D. 543), where Faithfull v. Ewin 
 (17 Ch. Div. 495) and the other authorities are reviewed, 
 it was laid down that all persons of business when deal- 
 ing with a fund obtained by litigation, must be assumed 
 to be aware that the fund is to be considered as subject 
 to the deduction of the costs to be paid to the solicitor 
 who has conducted the litigation which is successful, 
 and that it is always right to make the order in favour 
 of the solicitor unless he has been guilty of some 
 
304 
 
 CHARGE IN FAVOUR OF SOLICITOR. 
 
 [*196] 
 
 Practice. 
 
 Solicitor 
 
 discharging 
 
 himself. 
 
 General lien 
 of solicitor. 
 
 Distinction 
 between 
 statutory 
 charge and 
 lien upon 
 papers. 
 
 •fa mala fides or has stood by while the fund was being 
 dealt with so as unfairly to prejudice the position of 
 others. 
 
 The order declaring the charge, which may be made 
 though the action has come to an end (Heinrich v. Sut- 
 ton, 6 Ch. 865; Jones v. Frost, 7 Ch. 773), may be ob- 
 tained either on petition (Brown v. Trotman, 12 Ch. D. 
 880; 48 L. J. Ch. 862; 41 L. T. 179; 28 W. E. 164) or 
 on summons ( Clover v. Adams, 6 Q. B. D. 622 ; Hamer 
 v. Giles, Giles v. Hamer (M.E.), 11 Ch. D. 942; 48 L. 
 J. Ch. 508; 41 L. T. 270; 27 W. E. 834), and the other 
 parties to the action should not be served (Brovon v. 
 Trotman). The petition or summons must be intituled 
 in the action, but not necessarily in the matter of the 
 Act or of the solicitor (Hamer v. Giles, Giles v. Hamer). 
 
 A solicitor discharging himself pendente lite (see 
 Robins v. Goldingham, 19 W. E. 429) must deliver up 
 all necessary papers to the new solicitor without preju- 
 dice to the lien, tbe latter undertaking to return them 
 undefaced on the conclusion of the action and to allow 
 access to them (Robins v. Goldingham, 13 Eq. 440). 
 Daniell's Chancery Practice, p. 1975, et seq. ; Morgan 
 and Wurtzburg Chancery Acts and Orders, p. 16. 
 
 In addition to the charge given to a solicitor by stat- 
 ute on property preserved, he is also entitled to a gen- 
 eral lien for professional charges an all papers and doc- 
 uments, and also to articles of his client in his posses- 
 sion, delivered to be exhibited to witnesses. . (Friswell^ 
 v. King, 15 Sim. 191.) 
 
 A material distinction between a charge under 23 & 
 24 Vict. cap. 127, sect. 28, and the lien which a solicitor 
 has upon papers, &c, deposited in his hands by a client, 
 is that the former extends only to the costs of the par- 
 ticular action or matter under which the fund arises, 
 but it may be actively enforced while the right of a so- 
 licitor to retain possession of the deeds, papers, &c, is 
 a general one extending to all professional costs, but 
 cannot be actively enforced. 
 
 The rule was laid down in Belaney v. Ffrench (L. E. 
 8 Ch. 918), that "a solicitor cannot embarrass a suit by 
 keeping papers which belong to an estate which is be- 
 ing administered by the Court, and cannot use that 
 means of obtaining payment. There is no foundation 
 for such a claim to lien, and it cannot be allowed." 
 This case was followed in In re Boughton, Boughton v. 
 Boughton (23 Ch. D. 169), where the form of order is 
 given, and distinguished in In re Capital Life Insurance 
 Association (25 Ch. Div. 408) ; and see In re Hutchinson, 
 
CHARGE IN FAVOUR OP SOLICITOR. 305 
 
 Hutchinson v. Norwood (34 W. E. 637), where the cases 
 are collected. 
 
 It was held in In re Galland (31 Ch. D. 296), that in 
 a case where the retention of a client's papers by a so- 
 licitor would embarrass in either prosecuting or defend- 
 ing a pending action, the Court has jurisdiction, upon 
 giving security or payment into Court of a sum suffi- 
 cient to answer the solicitor's claim, to order delivery 
 of the papers before taxation. In this case the Court of 
 Appeal expressed an opinion that the jurisdiction on 
 this point has been" extended by O. iv., r. 8, R. S. C. 
 1883, which enables the Court to make an order for 
 delivery of specific -^- property other than land, on which [ *fc 197] 
 a lien is claimed, on payment into Court of the amount 
 claimed. 
 
 The position of solicitors of trustees — a subject on 
 which the Court considered it important that parties 
 should know what their rights were — was discussed in 
 and contrasted with that of trustees themselves in the 
 case of Staniar v. Evans (34 Ch. D. 470). 
 
 " The person employed by trustees to act as their Solicitor to 
 solicitor with respect to a trust estate, is commonly trustees. 
 enough said to be a solicitor to the trust estate. But 
 that is an inaccurate way of describing his position. 
 He is not solicitor to the trust estate. He has no re- 
 tainer from the- trust estate, and he is not employed by 
 the trust estate, but he is the person employed by the 
 trustee for his own purposes as trustee. His retainer 
 is by the trustee personally. The trustee personally is 
 liable to pay his costs, and the trustee personally is the 
 only person to whom the solicitor can look for those 
 costs. The solicitor of the trustees has no lien what- 
 ever upon the trust estate for those costs. That is the 
 general rule. There are certain exceptions to it by 
 which a trustee-solicitor may in that character have a 
 better claim. He may, for instance, have got a statu- 
 tory charge by an order of Court in respect of his having 
 recovered or preserved either the whole of the trust 
 fund or some part of it. He may possibly have some 
 lien on documents in his hands. He may have a right, 
 as between himself and his client, to go against that 
 client's share of the trust estate. But except in those 
 cases, he has no claim on the trust estate." 
 
 20 MODERN EQUITY. 
 
306 CONVERSION BY COURT OR TRUSTEE. 
 
 Conversion by Court or Trustee. 
 
 STEED v. PREEOE. 
 (L. R. 18 Eq. 192.) 
 
 Principle. When a conversion is rightly made either by 
 
 the Court or a trustee, all the consequences of 
 conversion must follow 1 unless there be an 
 equity in favour of reconversion 2 
 
 Summary of In this case real estate had been conveyed to 
 facts. trustees in trust for two infants, John Preece and 
 
 Edward Preece, as tenants in common in tail with 
 cross remainders between them. A suit was in- 
 [ ^ 198] stituted for administration -fa of the trusts, a decree 
 for sale made, the estate sold, and the purchase 
 money paid into court. Half of the fund in court 
 was paid to John Preece, who had attained his 
 majority, and the other half was carried over to the 
 separate account of Edward Preece; and under 
 these circumstances the infant would have been ab- 
 solutely entitled to that moiety if he had attained 
 twenty-one. On the death of Edward Preece under 
 twenty-one, John Preece executed a disentailing 
 deed and presented a petition to have the money 
 paid to him. Held, that he was not entitled. 
 
 This case forms a new point of departure in the 
 
 elaboration of the doctrine of conversion, the broad 
 
 principle of which was settled by the well-known case 
 
 Ackroydv. of Ackroyd v. Smithson (1 Bro. C. C. 503), in which 
 
 Smithson. Lord Eldon, then John Scott, made his celebrated ar- 
 
 1 Hocker v. Gentry, 3 Metcalfe (Ky.), 463; Ex parte McBee, 63 
 N. C. 332; Peters „. Beverly, 10 Peters, 532; Thomas v. Wood, 
 1 Md. Chan. 296. 
 
 2 Snell's Eq. 160. Reconversion may take place by act of the 
 party or by election. Bailey v. Alleghany Nat. Bank, 104 Pa. 
 St. 425; Beatty v. Byers, 6 Harris, 105. No inference can be 
 drawn from lapse of time that there is an intention to reconvert. 
 Beatty v. Byers (supra), also Jones e. Caldwell, 97 Pa. St. 442. 
 
CONVERSION BY COURT OR TRUSTEE. 307 
 
 gument. "Mr. Scott," said one of the judges, when 
 soon after he attempted to argue the reverse doctrine, 
 " I have read your argument in that case of Ackroyd 
 v. Smithson, and I defy you or any man in England to 
 answer it. I won't hear you!" (Campbell's 'Lives of 
 the Chancellors,' vol. vii. p. 56.) 
 
 The general principle on which the doctrine of General 
 " Conversion " is based is thus stated by the Court of principle of 
 Appeal in the recent case of Attorney -General v. Hub- conversion - 
 buck (13 Q. B. Div. 275, 289). "It is an established 
 principle in equity that when money is directed or 
 agreed to be turned into land, or land agreed or di- 
 rected to be turned into money, equity will treat that 
 which is agreed to be or which ought to be done as 
 done already, and impresses upon the property that 
 species of character for the purpose devolution and 
 title into which it is bound ultimately to be con- 
 verted." 3 This principle was considered as settled 
 law " established universally by the cases " in Fletcher 
 v. Ashburner (1 Bro. C. C. 500), decided in the year 
 1779. 
 
 In Ackroyd v. Smithson a testator after giving cer- 
 tain legacies ordered his real and personal estate to be 
 sold, his debts and legacies to be paid out of the pro- 
 ceeds, and the residue to be given to certain legatees, 
 two of the legatees in the lifetime of the testator, and 
 the shares so lapsed went, so far as they consisted of 
 personal estate, to the next of kin, and so far as they 
 consisted of real estate to the heir-at-law. The effect Effect of 
 of the case was thus stated by Sir George Jessel in Ackroyd v. 
 Steed v. Preece : , Smithson.' 
 
 "All that Ackroyd v. Smithson decided was, that a 
 conversion directed by a testator is a conversion only 
 for the purposes of the will/ and that all that is not 
 wanted for these purposes must go to the person who 
 would have been entitled but for the will. It does not 
 decide -^- that if the Court or a trustee sell more than [ -fa 199] 
 is necessary there is any equity to reconvert the sur- 
 plus for the benefit of the heir-at-law of the persons 
 entitled at the time of the sale." 5 
 
 The decision in Steed v. Preece (in which the previous 
 
 3 Parkinson's Appeal, 8 Casey, 455; Kane v. Gott, 24 Wendell, 
 641; Arnold v. Gilbert, 5 Barb. 190; Thomas v. Wood, 1 Md. 
 Chan. 296; Ellison v. Wilson, 13 S. & E. 330. 
 
 4 1 Jarman on Wills, 530; Nagle's Appeal, 1 Harris, 260. 
 
 5 If the proceeds" of realty and personalty are blended together 
 so as to form a common fund it will be considered as an absolute 
 conversion. Morrow v. Brenizer, 2 Rawle, 185; Craig v. Leslie, 
 2 Wheat. 563; Burr v. Sim, 1 Wharton, 252. 
 
308 CONVERSION BY COURT OR TRUSTEE. 
 
 decisions of Vice-Chancellor Shadwell in Jenny v. Pres- 
 ton (13 Sim. 356), and of Lord Romilly in Cooke v. 
 Dealey (22 Beav. 196), were questioned), as stated in 
 Foster v. Foster (1 Ch. D. 588), proceeded on the prin- 
 ciple that if a conversion is rightfully made, whether 
 by the Court or a trustee, all the consequences of conver- 
 sion must follow, if there be no equity in favour of the 
 heir or any one else for reconversion. Its principle was 
 adopted in Arnold v. Dixon (L. R. 19 Eq. 113) and 
 Wallace v. Greenwood (16 Ch. D. 362), where it was 
 decided that an order for sale of a married woman's 
 share of real estate made with her consent under sect. 
 6 of the Partition Act, 1876, operates as a conversion. 
 In Hyett v. Meaken (25 Ch. D. 735) the question was 
 whether a share of real estate which had been ordered 
 to be sold but not actually sold passed to the heir or 
 next of kin of an intestate, and it was held that the order 
 for sale effected a conversion as far as its date and 
 before any sale has taken place. In this case nearly 
 all the previous authorities are reviewed, and the result 
 of them is stated as follows : — " that if in an action for 
 administration of an estate the Court, in the exercise 
 of its undoubted jurisdiction, makes an order for the 
 sale of the estate, the order for sale will amount in 
 itself to a conversion." b The general statement that 
 an order for sale by the Court amounts to a conversion 
 is subject to the qualification laid down in Steed v. 
 Preece, "unless there be an equity for reconversion.'" 
 Equity for An equity for reconversion was discovered two years 
 
 reconversion, after the decision in Steed v. Preece, in Foster v. Foster 
 (supra), where the question was whether there had been 
 conversion with regard to real estate of a share to which 
 infants were entitled, sold under the judgment in a parti- 
 tion action, and it was held that the effect of sect. 8 of the 
 Partition Act, 1868 (31 & 32 Vict. c. 40), incorporating 
 the provisions of the Leases and Sales of Settled Estates 
 Act (19 & 20 Vict. c. 120), created an equity for recon- 
 version into realty. 8 
 
 Foster v. Foster (1 Ch. D. 589) was followed in Mild- 
 may v. Quicke (6 Ch. D. 553). There Mrs. Quicke, a 
 married woman, was entitled, subject to her husband's 
 right to curtesy, to one- eighth share of certain real estate 
 
 6 In the case of a will, the conversion takes place from the 
 death of the testator. 
 
 7 Reconversion will not take place generally unless all the par- 
 ties interested so elect. Willing v. Peters, 7 Barr, 290 ; Beatty 
 v. Byers (supra). 
 
 8 Snell's Prin. of Eq. 160. 
 
CONVERSION BY COURT OR TRUSTEE. 309 
 
 •which was made the subject of a partition actioD. The 
 plaintiff in the action was entitled to one-eighth, and 
 he made an offer for Mrs. Quicke's one eighth, which 
 was accordingly sold to him by order of the Court. 
 Mrs. Quicke then died, and a question arose between, 
 her husband and her two infant daughters, coheiresses, 
 as to who was entitled to the purchase money of the 
 one-eighth share. Jessel, M.E., decided in favour of 
 the coheiresses. " The result," he said, " was that the 
 money for this share of the married woman became as 
 much liable to be disposed of in her favour and in favour 
 of those claiming under her as if the whole estate had 
 been sold and the married woman's share of the pur- 
 chase money carried to a separate -^ account. It ap- [ *fc 200] 
 pears to me clear that whenever you have a person that 
 cannot consent, and you import the provisions of the 
 Leases and Sales of Settled Estates Act, you must un- 
 derstand them as saying that the purchase money is to 
 be laid out in land to be settled to the same uses, and 
 as the married woman in this case had not conveyed by 
 deed and had not herself consented to anything, for her 
 alleged consent was really the consent of her husband, 
 there was nothing which changed the destination of the 
 money, and it was still liable to be laid out in land." 
 
 The rule of the Court with regard to the conversion Conversion 
 of partnership property in the absence of any binding of partner- 
 agreement between the parties to the contrary. was thus s P . 
 stated in Darby v. Darby (3 Drew. 495), cited with ap- 
 proval in Attorney -General v. Hubbuck (10 Q. B. D. 
 488, affirmed 13 Q. B. Div. 275). 
 
 " Irrespective of authority, and looking at the matter 
 with reference to principles well established in this Court, 
 if partners purchase land merely for the purpose of 
 their trade and pay for it oat of the partnership pro- 
 perty, that transaction makes the property personalty, 
 and effects a conversion out and out. 9 What is the 
 clear principle of this Court as to the law of partner- 
 ship ? It is that on the dissolution of the partnership 
 all the property belonging to the partnership shall be 
 sold, and the proceeds of the sale, after discharging all 
 the partnership debts and liabilities, shall be divided 
 among the partners according to their respective shares 
 in the capital. That is the general rule, and it requires 
 no special stipulation ; it is inherent in the very con- 
 tract of partnership." 10 
 
 9 Darby v. Darby, 3 Drew, 506. 
 
 10 After the partnership liabilities and equities have been 
 satisfied the surplus derived from the sale of real estate will go 
 
310 CONVERSION BY COURT OK TRUSTEE. 
 
 On this principle it was held in Attorney -General v. 
 Hubbuck (ubi supra), where the previous authorities 
 are reviewed, that probate duty is payable on a de- 
 ceased partner's share of the partnership realty, irre- 
 spective of the question whether there is any actual con- 
 version. 
 
 The principle on which the Courts proceed in decid- 
 ing whether an order for sale of a married woman's 
 share of real estate in a partition action operates as a 
 conversion was thus stated by Jessel, M.K., in Wallace 
 v. Greenwood (16 Oh. Div. 62). " It maybe said how- 
 ever that a married woman is in a different position 
 to an infant, because she is absolute owner of her real 
 estate subject to her husband's estate as tenant by the 
 curtsey, and that if she sells, the purcbase-money be- 
 comes his estate subject only to her equity to a settle- 
 ment. That is true, but the Act has enabled her to 
 judge for herself whether she shall sell or not. She 
 could no doubt have sold her estate before the Act by a 
 deed acknowledged under the Fines and Recoveries Act, 
 but now, instead of selling by a deed acknowledged, 
 she sells by statute, that is to say, by giving her con- 
 sent. That being so, if the married woman consents 
 there is conversion, if she does not consent, it does not 
 appear to me that conversion will follow." 
 Conversion Where conversion is absolutely directed by deed it 
 
 deed at ^ takeS P laCe fr0m tbe date ° f the deed ' " where by wiH 
 w iU from the date of the testator's death. See In re Lewis, 
 
 [-£'201] Foxwell v. Lewis (30 Ch. D. 654, 656), -fc where the 
 law was summed up as follows : — " Whenever real estate 
 has been converted into personalty, or according to the 
 doctrine of a Court of Equity is to be treated as having 
 been converted into personalty, it must then descend as 
 personalty unless some person who is absolutely entitled 
 to it has shewn in some way that he has elected to take 
 it as real estate. Almost anything will be enough to 
 shew such an intention, but there must be something." 
 See In re Gordon (6 Ch. D. 531), where remaining in 
 possession and receiving the rents for nine years with- 
 out taking any steps to have the estate sold was regarded 
 as sufficient evidence of an election to take the property 
 
 to the real and not to personal representatives; this is the general 
 rule throughout the United States. Shearer v. Id.', 98 Mass. 107 
 Hale v. Plummer, 6 Ind. 121 ; Dilworth v. Mayfield, 36 Miss. 40 
 Long v. Waring, 25 Ala. 625; Parson's on Partnership, 371 
 Foster's Appeal, 24 P. P. Sin. 397; Tillinghast r. Champlin, 4 R. 
 I. 173. 
 
 11 i. e. takes place from the date of the delivery of the deed. 
 Bispham's Eq. 4th Ed. Sect. 320. 
 
MISREPRESENTATION AND FRAUD. 311 
 
 as real estate. See also In re Davidson, Martin v. Trim- 
 mer (11 Ch. Div. 341 ). 12 
 
 Money paid into Court under sect. 69 of the Land Lands 
 Clauses Consolidation Act, 1845, i.e. in cases where Clauses 
 the parties are under disability, is treated as not con- c p nsolia[ a- 
 verted (In re Harrop, 3 Drew. 726; Kelland v. Fulford, f^g 4 "*' 
 6 Ch. D. 491). Where the parties are competent to 
 convey, and the money is paid into Court under sect. 
 78, the purchase-money is treated as personalty. (Mor- 
 gan and Wurtzburg's Chancery Acts and Orders, p. 36, 
 and see In re Tugwell (27 Ch. D. 309) ). Notice to 
 treat by a railway, &c, company does not effect a con- 
 version (Haynes v. Haynes, 1 Dr. & Sm. 426, and see 
 Ex parte Walker, Drew. 508), but where the price is 
 fixed, the property is regarded, as converted 13 (Ex parte 
 Hawkins, 13 Sim. 569; In re Pigott and the Great 
 Western Railway Company, 18 Ch. D. 146). 
 
 Misrepresentation and Fraud. 
 
 REDGRAVE v. HTJRD. 
 (20 Ch. Div. 1.) 
 
 Where a contract is induced by a material Principle 
 representation which is untrue, it is no defence 
 to an action for rescission that the party to 
 whom the representation was made had the 
 means of discovering, and might with due dili- 
 gence have discovered, its untruth, and that he 
 made a cursory and incomplete inquiry into the 
 facts} 
 
 Redgrave, a solicitor, advertised in florid terms Summary of 
 ior a partner, " an efficient lawyer who would not facts ' 
 
 12 The doctrine of conversion is applied to all cases where 
 the general intention of the testator is sufficiently manifest to 
 give the property to the donee iu a condition different from that 
 in which it exists at the time that the will goes into effect. See 
 Stagg v. Jackson, 1 Comstock, 206; Phelps v. Pond, 23 N. Y. 69; 
 Poland v. Miller, 100 Pa. St. 47. 
 
 13 It is the duty to convert, which creates the equitable charge. 
 1 In a case of fraud equitable relief will be granted either 
 
 where the fraud consists of a positive misrepresentation or where 
 there is a wilful concealment of a fact. Torrey v. Buck, 1 Green's 
 Chan. 366; Smith v. Richards, 13 Peters, 26. 
 
 If the misrepresentation is made with the intention to deceive 
 
312 MISREPRESENTATION AND FRAUD. 
 
 [ -^ 202] object to ^ purchase the advertiser's suburban resi- 
 dence, value £1600 — no premium for business or 
 introduction." Hurd replied by letter, and inter- 
 views were held in the course of which Redgrave 
 represented that the business was worth £300 to 
 £400 a year, and produced summaries of business 
 done during the last three years, which shewed 
 gross receipts not quite amounting to £200 a year. 
 Hurd inquired how the difference was made up, and 
 Redgrave shewed him a quantity of letters and 
 papers, which he stated related to other business he 
 had done. Hurd did not examine any of the letters 
 and papers but only looked cursorily at them, and 
 ultimately agreed to purchase the house and share 
 in the business for £1600. He paid a deposit of 
 £100, took possession of the house, but soon after- 
 wards, finding that the business was valueless, gave 
 up possession and refused to complete the purchase. 
 Redgrave commenced an action for specific per- 
 formance of the contract; Hurd, on the other hand, 
 counter-claimed for rescission of the contract, re- 
 turn of the deposit and damages. Held, by the 
 Court of Appeal, that Hurd was entitled to rescis - 
 sion and return of the deposit, but not to damages. 2 
 
 In this case the Court of Appeal, while reversing the 
 decision of the Court below with regard to the specific 
 performance of the contract and also with reference to 
 that portion of the counter-claim which asked for rescis- 
 sion, upheld its judgment upon the point that Hurd 
 was not entitled to damages which he claimed on the 
 ground of deceit practised by the plaintiff in respect of 
 the agreement. The last point was first disposed of by 
 the judgment of the Court of Appeal by deciding that 
 the defendant was not entitled to damages "because he 
 
 the other party it will vitiate the transaction. Harding c. Ran- 
 dall, 15 Me. 332; Reese v. Wyman, 9Ga. 439; Taymonji. Mitchell, 
 1 Md. Ch. 496; Hough r. Richardson, 3 Story, 659. It is the 
 duty of the party to know the truth; a misrepresentation is pre- 
 sumed to be fraudulent. See Bigelowon Fraud, 56 et seq. 
 
 2 Leake on Contracts, 188; Lowe v. Trundle, 78 Va. 65; York 
 i'.' Gregg, 9 Texas, 85; Thompson v. Lee, 31 Ala. 292; Oswald v. 
 McGehee, 28 Miss. 340. 
 
MISREPRESENTATION AND FRAUD. 313 
 
 had not pleaded knowledge on the part of the plaintiff 
 that the allegations made by the plaintiff were untrue, 
 nor had he pleaded the allegations themselves in suffi- 
 cient detail to found an action for deceit." 3 The second 
 point dealt with by the Court of Appeal was the ques- 
 tion of the rescission of the contract. Before stating Kescisaion of 
 the principles on which the Court is guided with re- the contract. 
 gard to the rescission of contracts, Jessel, M R., pointed 
 out that there were certain observations contained not 
 only in text books but even in observations delivered in 
 the House of Lords -^ inconsistent with the law as now [ -fa 203] 
 settled, and that there had also existed a difference be- 
 tween the rules of Courts of Equity and the rules of 
 Courts of Common Law, which has now disappeared by 
 reason of the provision in sect. 25, sub-sect. 11, of the 
 Judicature Act providing that in all cases of conflict 
 the rules of equity are to prevail. 
 
 The broad rule of equity on the subject was conclu- 
 sively settled by the decision of the House of Lords in 
 Reese River Mining Company v. Smith (L. R. 4 H. L. 
 64), and the principle which may now be considered as 
 established is that it is not necessary in order to set 
 aside a contract obtained by material false representa- 
 tion, to prove that the party who obtained it knew at 
 the time when the representation was made that it was 
 false. Two reasons have been given for this principle: 
 one that it was the duty of the party making the false 
 representation to have found out its falsehood before he 
 made it; the other that a man ought not to be allowed 
 to retain the advantage gained by a false statement. 4 
 
 The third point in the case, which the Court of Ap- Specific per- 
 peal (reversing the Court below) decided in the de- formance. 
 fendant's favour, was on the question of specific per- 
 formance. This was disposed of by the following 
 statement: — "If a man is induced to enter into a con- 
 tract by a false representation, it is not a sufficient an- 
 swer to him to say, 'If you had used due diligence you 
 would have found out that the statement was untrue. 
 You had the means afforded you of discovering its 
 falsity, and did not choose to avail yourself of them.' " 
 "I take it," said Jessel, M.R., "to be a settled doctrine 
 of equity, not only as regards specific performance but 
 
 3 A person is answerable even if the assertion of the untruth 
 was made with good intentions and without designing any fraud. 
 Leake on Contracts, 187; Bispham's Eq. 4th Ed. Sect. 214; Bank- 
 head v. Alloway, 6 Cold. (Tenn.) 75. 
 
 * No person can be held responsible for a misrepresentation 
 made through an honest mistake. Cabot v. Christie, 42 Vt. 120; 
 Fisher v. Mellen, 103 Mass. 503. 
 
314 MISREPRESENTATION AND FRAUD. 
 
 also as regards rescission, that this is not an answer 
 unless there is such delay as constitutes a defence un- 
 der the Statutes of Limitations." The delay counts 
 only from the time when by due diligence the fraud 
 might have been discovered. 
 Action of In Smith \. Ghadwick (9 App. Cas. 187), in which 
 
 deceit. the House of Lords affirmed the decision of the Court 
 
 of Appeal (20 Ch. Div. 27, where the facts are fully 
 stated), the action was an action of deceit, on account 
 of fraudulent misrepresentation by which the plaintiff 
 said he had been induced to take shares in a company. 
 The prospectus of the company contained the material 
 statement by which the plaintiff alleged that he had 
 been deceived, " that the present value of the turnover 
 or output of the entire works is over £1,000,000 sterl- 
 ing per annum." The statement, if taken to mean 
 that the works had actually turned out produce of that 
 value, was untrue, but if meant in the sense that the 
 works were capable of producing that amount, was 
 true." The plaintiff swore, in answer to interrogatories, 
 that he understood the meaning of the statement to be 
 "that which the words obviously conveyed," but he was 
 not asked either in examination or cross-examination 
 what interpetration he had put on the words: 5 The 
 plaintiff, in fact, as the case was put by the Court of 
 Appeal (20 Ch. Div. 49), said he had been deceived, 
 but did not "condescend to particulars," and did not 
 tell in what respect he had been deceived. The House 
 of Lords decided, affirming the decision of the Court 
 [ -^ 204] of Appeal, that the plaintiff -^-was not entitled to suc- 
 ceed. "In an action of deceit," said the Lord Chan- 
 cellor, " it is the duty of the plaintiff to establish two 
 things; first, actual fraud, which is to be judged of by 
 the nature and character of the representations made 
 considered with reference to the object for which they 
 were made, the knowledge or means of knowledge of 
 the persons making them, and the intention which the 
 law justly imputes to every man to produce those con- 
 sequences which are the natural result of his acts; 6 and 
 
 6 According to modern authorities a man has no more right to 
 assert what he does not know to be true, than to state what he 
 knows to be false. Smyth v. Dye, 15 Mo. App. 585; Hubbell v. 
 Meigs, 50 N. Y. 489. 
 
 6 The representation must be false in point of fact, it must be 
 a misrepresentation of something that is a matter of fact and not 
 of mere opinion or judgment. Bennett c. Judson 21 N. Y. 238; 
 Tyler v. Black, 13 How. 230; Curry v. Keyser, 30 Ind. 214; Stow 
 v. Bozeman, 29 Ala. 397; Watts v. Cummings, 9 P. F. Sm. 84; 
 Sawyer v. Prickett, 19 "Wallace, 146. 
 
MISREPRESENTATION AND FRAUD. 315 
 
 secondly, he must establish that this fraud was an in- Action of 
 ducing cause to the contiact, for which purpose it must deceit. 
 be material, and it must have produced in his mind an 
 erroneous belief influencing his conduct.' The plaintiff 
 has not satisfied the burden of proof which under the 
 circumstances was incumbent upon him." 
 
 "I cannot myself see," said Lord Blackburn, "what 
 difficulty there could have been in the plaintiff's saying 
 in answer to the defendant's interrogatory, 'I under- 
 stand the meaning of the representation as to turnover 
 to be that Messrs. Hannay's works had actually during 
 the past year turned out produce that at present prices 
 would be worth more than a million, and that was un- 
 true, for they never produced half as much.' When I 
 say this, I mean of course if the plaintiff could truly 
 swear to that effect. 8 If he did not understand it, there 
 was of course a very good reason for not so swearing." 
 
 The action in Smith v. Chadwick, as has been already 
 stated, was an action of deceit. It was brought in the 
 Chancery Division, but the indorsement was that the 
 plaintiff claimed for damages sustained by his having 
 been induced to take and pay for shares by the 1 fraudu- 
 lent misrepresentations of the defendant. It was 
 pointed out by Lord Blackburn, following what had 
 been said in Arkivright v. Newbold (17 Ch. Div. 320), 
 that an action for deceit is a common law action, and 
 must be decided on the same principles whether brought 
 in the Chancery Division or the Common Law Division, 
 there being no such thing as an equitable action for 
 deceit. The difference in the mode of trial, however, 
 if the case be tried in the Chancery Division, makes a 
 difference with regard to the province of the Court of 
 Appeal. 
 
 Here Lord Blackburn (modifying to some extent the 
 observations of Jessel, M.E., in the Court of Appeal) 
 laid down the following important principles: 1. The 
 Court of Appeal ought to give great weight, but not 
 undue weight, to the opinion of the judge who tried the 
 cause and saw the witnesses and their demeanour. On 
 the other hand, if convinced that the inference in favour 
 of the plaintiff ought not to have been drawn from the 
 
 7 A man may also be responsible for a false representation even 
 if he has no interest in the deception. Weed v. Case, 55 Barb. 
 547. A person when dealing with another has a right to rest on 
 his assertion of a fact. Mead v. Bunn, 32 N. Y. 295. 
 
 8 A person has not the right to rest upon the opinion of another, 
 unless the one so giving the opinion does so as an expert. 
 Picard v. McCormick, 11 Mich. 68, and Kost v. Bender, 25 Mich. 
 515. 
 
316 MISREPRESENTATION AND FRAUD. 
 
 evidence, the Court of Appeal should deliver its judg- 
 ment the other way. 2. If it is proved that the de- 
 fendant, with a view to induce the plaintiff to enter 
 into a contract, made a statement to the plaintiff of 
 such a nature as would be likely to induce a person to 
 enter into a contract, and it is proved that the plaintiff 
 did enter into the contract, it is not an inference of law, 
 i.e., an inference that must be made, but a fair infer- 
 ence of fact that he was induced to do so by the state- 
 ment. It is proper evidence to be left to a jury, but its 
 weight as evidence must greatly depend upon the degree 
 [ "At 205] to which the action of the plaintiff was -fa likely to be 
 influenced by it, and in the absence of all other grounds 
 upon which the plaintiff might act. 9 
 
 A circumstance which Lord Blackburn said ought to 
 be borne in mind by the tribunal which had to decide 
 the question of fact, is that the plaintiff under the pre- 
 sent law can be called as a witness on his own behalf, 
 and if he is not so called, or being so called, does not 
 swear that he was induced by the representations in 
 question to enter into the contract, much weight is add- 
 ed to the doubts whether the inference that he was 
 deceived by the misrepresentation was a true one. 10 
 
 The dicta of Jessel, M.R., in Redgrave v. Hurd,vaer& 
 recently considered in Hughes v. Twisden (34 W. E. 
 498) along with the comments in Smith v. Chadwiek 
 (9 App. Cas. 196), and Smith v. Land and House Pro- 
 perty Corporation (28 Ch. Div. 16), where the Court 
 stated the law to be that in such a case there is not a 
 presumption of law, but that the misrepresentation is 
 to be regarded as " an important piece of evidence from 
 which, if there is nothing else, the Court may draw the 
 inference of fact that the plaintiff was induced by the 
 statement to enter into the contract," " and in the case 
 before it the Court declined to draw such an inference. 
 
 It may be noticed in passing that in the course of 
 the argument in Smith v. Chadicick (9 App. Cas 189), 
 Lord Blackburn expressed an opinion that probably the 
 discrepancies! between expressions of equity and com- 
 mon law judges are greatly owing to the fact that at 
 
 9 A man may praise the value of his own wares and depreciate 
 the value of that which he buys and it is no fraud. Adams v. 
 Soule, 33 Vt. 549; Gatly <■. Holcomb, 44 Ark. 216; French c. 
 Griffin, 3 C. E. Green, 279. 
 
 10 McClellan v. Scott, 24 Wis. 81; Paddock r. Fletcher, 42 Vt. 
 389; Clarke r. Dickson, 6 C. B. (N. S.) 453. 
 
 ;l As to the puffing of values see Vazie c. Williams, 8 Howard, 
 134; Pennock's Appeal, 2 Harris, 449; Faucett r. Currer, 115 
 Mass. 20; Trust r. Delaplaine, 3 E. D. Smith, 219. 
 
MISREPRESENTATION AND FRAUD. 317 
 
 common law questions of fact are for the jury, and it is 
 necessary for the judge to separate them clearly from 
 the questions of law; whereas, in equity, the judges 
 have to determine both law and fact, and it is some- 
 times impossible to understand whether their decisions 
 were meant to be inferences of fact or law. 
 
 In Mullens v. Miller (22 Ch. D. 194), a surveyor who TJnautho- 
 "was employed to find a purchaser of a leasehold house, Tlze d mis- 
 made certain untrue statements, unauthorized by the ti^by 1 
 owner, with regard to the value of the property. The agent, 
 owner also made misleading statements to the pur- 
 chaser. It was held that the false statements by the 
 agent, 12 independently of those made by the owner, were 
 sufficient to disentitle the owner to specific performance 
 of the contract, on the ground that an agent, whether 
 he be employed to sell a house or to find a purchaser, 
 has authority to describe it and make true representa- 
 tions as to its value, and if he makes untrue represen- 
 tations and induces a contract, his principal cannot 
 have specific performance. 13 
 
 In Smith v. Land and House Property Corporation 
 (28 Ch. Div. 7) an hotel was advertized for sale as let 
 to a most desirable tenant, the vendors were aware of cir- 
 cumstances that shewed that he was not a desirable ten- 
 ant. The chairman of the defendant company, whose evi- 
 dence was not shaken on cross- examination, and believed 
 by the judge who saw and heard him,swore that the com- 
 pany would not have purchased but for the representa- 
 tion as to the tenant. The Court of Appeal affirmed 
 the decision, dismissing an action for specific perform- 
 ance. 
 
 In Edgington v. Fitzmaurice (29 Ch. Div. 459) the 
 directors of a -^ company invited subscriptions for de- [ -^ 206] 
 bentures, stating that they had certain objects for the 
 development of their business in view, their main, and 
 practically their only object being to obtain means to 
 pay off pressing liabilities. The plaintiff advanced 
 money on the erroneous belief that the prospectus 
 offered him a charge upon the company, and stated that 
 he would not have taken the debentures unless he had 
 understood that he was to have such a charge, and that 
 he also relied on the fact that the company wanted money 
 
 12 It makes no difference if the misrepresentations are made 
 T>y an agent, an attorney or by a partner. Blair v. Bromley, 2 
 Phillips' Ch. 354; Fitzsimmons v. Joslin, 21 Vt. 129. 
 
 13 Misrepresentation of values may become material in resist- 
 ing specific performance. Tyler u. Black, 13 How. (U. S.) 231; 
 Spalding v. Hedges, 2 Barr. 240; Best v. Stow, 2 Sand. Ch. 298. 
 
318 
 
 MISREPRESENTATION AND FRAUD. 
 
 Action on 
 deceit and 
 action on 
 misrepre- 
 sentation 
 contrasted. 
 
 Summary of 
 the law as 
 to voidable 
 contract to 
 take shares 
 in a com- 
 pany. 
 
 for the purposes stated by the prospectus. The Court of 
 Appeal held that, there being a material statement influ- 
 encing his conduct, he was entitled to bring an action 
 for deceit. The law on the subject was stated in their 
 judgment in the following manner: — 
 
 " In order to sustain bis action, the plaintiff must 
 first prove that there was a statement as to facts which 
 was false; and secondly, that it was false to the knowl- 
 edge of the defendant, or that he made it not caring 
 whether it was true or false. 14 It is immaterial whether 
 he made the statement knowing it to be untrue, or 
 recklessly, without earing whether it was true or not, 
 because to make a statement recklessly for the purpose 
 of influencing another person is dishonest. It is also 
 immaterial with what object the lie is told, as laid down 
 in Lord Blackburn's judgment in Smith v. Chadwick, 
 but it is material that the defendant should intend that 
 it should be relied on by the person to whom he makes 
 it. Lastly, when you have proved that the statement 
 was false, you must further shew that the plaintiff has 
 acted upon it and has sustained damage by so doing: 
 you must shew that the statement was either the sole 
 cause of the plaintiff's act, or materially contributed to 
 his so acting." 15 
 
 In an action for setting aside a contract which has 
 been obtained by misrepresentation, the plaintiff may 
 succeed, although the misrepresentation was innocent; 
 but in an action of deceit the representation to found 
 the action must not be innocent, that is to say, it must 
 be made either with knowledge of its being false, or 
 with a reckless disregard as to whether it is or is not 
 true: per Cotton, L.J. (17 Ch. Div. 301, 320). 
 
 The principles on which the Courts proceed with re- 
 gard to the important subject of the repudiation of 
 voidable contracts to take shares was thus summed up 
 by the Court of Appeal in In re Scottish Petroleum 
 Company (23 Ch. Div. 413, 429), where the authorities 
 on the subject are collected. 1. Every person who has 
 agreed to become a member of a company and whose 
 name has been entered on the register of members is 
 
 14 A man has no right to rely on what another says he intends 
 to do. Grove v. Hodges, 5 P. F. Sm. 519; Lone; ts. Woodman, 
 58 Maine, 49. 
 
 15 " If the party to whom the representation is made resorts to 
 inquiries on his own account and shows by his conduct that 
 he relies upon them he cannot complain of a misrepresentation." 
 Pratta Philbrook, 33 Me. 17; Glasscock t>. Minor, 11 Mo. 655; 
 Clarke. Everhart, 13 P. F. Sm. 347; Tindall v. Harkinson, 19 
 Ga. 448. ♦ 
 
MISREPRESENTATION AND FRAUD. 319 
 
 liable as a contributory in the event of the company 
 being wound up. This is in substance the combined 
 effect of the 23rd, 38th, and 74th sections of the Com- 
 panies Act, 1862. 2. The proposition thus generally 
 stated is subject to the application of the well-recognis- 
 ed rule in equity, that a person who has been induced 
 to enter into a contract by the fraudulent conduct of 
 those with whom he has contracted, is entitled to re- 
 scind such contract provided he does so within a rea- 
 sonable time after hiB discovery of the fraud. 16 In such 
 cases the contract is voidable, not void." 3. This last- 
 mentioned rule in its •fa application to contracts to take [ ~K 207] 
 shares in a company which is subsequently ordered to 
 be wound up, has been modified to this extent, that the 
 contract must be avoided, or that must be done which 
 is recognised as equivalent to avoidance, before the 
 commencement of the winding-up. 
 
 The law with regard to frauds of directors and agents Fraud of 
 of companies was much considered in Cargill v. Bower directors 
 (10 Ch. D. 502), where it was held, explaining Peek v. and a S ents - 
 Gurney (L. R. 6 H. L. 377) and following Weir v. Bar- 
 nett (3 Ex. D. 32), that a director is not liable for 
 fraud of his co-directors or the agents of the company, 
 ex. gr. that of issuing a fraudulent prospectus, unless 
 he has either expressly authorized or tacitly permitted 
 its commission; and see In re Denham & Co. (25 Ch. D. 
 752), where it was held that the director was not liable 
 as the books of account had been kept and audited by 
 duly appointed and responsible officers, and there was 
 no ground for suspecting fraud. 
 
 16 A person must make use of any means they may hare of in- 
 formation. Brown v. Leach, 107 Mass. 364; Wrights. Gully, 28 
 Ind. 475. 
 
 17 Crossman v. Penrose Ferry Bridge Co., 2 Casey, 69; Custar 
 ■o. Titusville Gas & Water Co., 3 P. F. Sm. 385. 
 
320 
 
 FAMILY ARRANGEMENTS. 
 
 Family Arrangements. 
 
 "WILLIAMS r. WILLIAMS. 
 (L. R. 2Ch. 294.) 
 
 Principle. A. family arrangement may be upheld al- 
 
 though there were no rights in dispute at the 
 time of making it, and the Court will not be dis- 
 posed to scan with much nicety the quantum of 
 the consideration. 1 
 
 Summary of 
 facts. 
 
 [*208] 
 
 John Williams, who was possessed of real estate 
 of socage, gavelkind, borough English tenure, and 
 also leaseholds and other personal property, died in 
 1831, leaving a wife and two sons, John and Sam- 
 uel. After his death a will was found, by which J. 
 Williams the elder gave all his property, subject to 
 certain provisions, for his wife and his two sons 
 equally. The will was unwitnessed and was ac- 
 cordingly not admitted to probate. It was proved 
 that at an interview soon after John declared that 
 " the property shall be not mine nor thine, -but 
 ours.' 1 The widow never asserted any ^ rights, and 
 indeed stated that she did not claim her right to 
 dower because her sons were carrying out their fath- 
 er's instructions, and for the rest of her life she was 
 supported by her two sons out of the " proceeds of 
 their joint business and the income of their father's 
 estate." The two brothers carried on business in 
 partnership for 20 years, and treated the whole of 
 the property «as belonging to them equally. The 
 partnership was then dissolved, and between 1852 
 and 1857 there was considerable litigation between 
 the brothers. In 1858 Samuel died, and his repre- 
 sentatives and devisees in trust instituted a suit al- 
 
 1 Family compromises if made in good faith are favored in 
 equity. Stub v. Lies, 4 Watts, 43 ; Burkholder's App., 9 Outer- 
 bridge, 39. 
 
FAMILY ARRANGEMENTS. 321 
 
 leging that a family arrangement had been made 
 between the two brothers, and asking that the es- 
 tates should be equally divided. The Court of Ap- 
 peal held that there was sufficient evidence of a 
 family arrangement, and decreed accordingly. 2 
 
 In this case the Court of Appeal considerably ex- 
 tended the principles upon which family arrangements 
 had been previously upheld. (1) There was no agree- 
 ment in writing, and the arrangement could only be 
 implied from the conduct of the parties. (2) As was 
 pointed out in the judgment of Lord Chelmsford, there 
 was here no doubtful right to be compromised, no dis- 
 pute between the brothers which was to be set at rest, 
 no honour of the family involved; the appellant was 
 merely prompted by respect for his father's intentions 
 and by his affection for his brother, both most excellent 
 and praiseworthy motives, but scarcely sufficient to con- 
 stitute such a consideration as wduld convert an act of 
 kindness into a binding engagement. The general General 
 principle upon which the Court proceeds with regard principle, 
 to compromises in the nature of family arrangements, 
 and made to " save the honour of a family, was stated 
 by Lord Hardwicke in the case of Stapilton v. Stapil- 
 ton (1 Atk. 2), decided in the year 1739. " The Court 
 always considers the reasonableness of the agreement, 
 and will be glad to lay hold of any just ground to carry 
 it into execution and to establish the peace of a family." 
 " From the case of Stapilton v. Stapilton" said Lord 
 Chancellor Sugden in Westby v. Westby.(2 D. & War. 
 503), " down to the present day, the current of author- 
 ities have been uniform, and wherever doubts and dis- 
 putes have arisen with regard to the rights of different 
 members of the same family (and especially, I may ob- 
 serve, where those doubts have related to a question of 
 legitimacy), and fair compromises have been entered 
 into to preserve the harmony and affection, or to save 
 the honour of the family, those arrangements have 
 ■fa been sustained by this Court, albeit, perhaps, rest- l JL-209] 
 ing upon grounds which would not have been consid- 
 ered satisfactory, if the transaction had occurred be- 
 tween mere strangers." 3 
 
 In the present case, the Lord Chancellor said that if 
 
 2 Bell v. Lawrence, 51 Ala. 160 ; Brandon v. Medley, 1 Jones 
 Eq. 313 ; Good v. Kerr, 7 W. & S. 253 ; Triggsi'. Reed, 5 Humph. 
 529. 
 
 3 Shartel's App., 14 P. F. Sm. 25 ; Wilen's App., 9 Out. 121. 
 
 21 MODERN EQUITY. 
 
tion. 
 
 322 FAMILY ARRANGEMENTS. 
 
 there had been no consideration ■whatever, the arrange- 
 ment would in all probability not have been treated as 
 binding on the parties, but then there was some con- 
 sideration to support the arrangement in the circum- 
 stances of the case. The borough English property 
 which Samuel had left in the common stock along with 
 his share in the stock-in-trade of the business, was of 
 some, though of trifling value. Another fact which was to 
 be taken into account was that the widow was a party 
 to the arrangement, and had relinquished her rights in 
 order to carry it into effect. 4 
 Quantum of It is a well-established principle that in cases of this 
 considera- description the amount of the consideration is not care- 
 fully regarded by the Court. The present case accord- 
 ingly was treated as upon the same footing as the other 
 cases which had been decided with regard to family 
 arrangements. "It was strongly argued for the appel- 
 lant," said Turner, L.J., "that this case does not fall 
 within the range of those authorities, that those cases ex- 
 tend no further than to arrangements for the settlement 
 of doubtful or disputed rights, and that in this case there 
 was not, and could not be any doubtful or disputed 
 right ; but this I think is a very short-sighted view of 
 the cases as to family arrangements. They extend, as 
 I apprehend, much farther than is contended for on 
 the part of the appellant, and apply, as I conceive, not 
 merely to cases in which arrangements are made between 
 members of a family for the preservation of its peace, 
 but to cases in which arrangements are made between 
 them for the preservation of its property. The re-set- 
 tlement bf family estates upon an arrangement between 
 the father and the eldest son on his attaining twenty- 
 one, may well be considered as a branch of these cases, 
 and certainly this Court does not in such cases inquire 
 into the quantum of consideration." 6 
 
 Similar principles were laid down in Persse v. Persse 
 (7 CI. & Fin. 280), where the House of Lords decided 
 that, having regard to the ages and relative 'situation 
 of the parties and other circumstances^ there was some 
 consideration, and not very inadequate consideration, 
 for the arrangement which had been entered into. In 
 
 4 Kerr on Mistake and Fraud, 403 ; Taylor v. Patrick, 1 Bibb. 168. 
 
 5 " If the terms of the arrangement are unconscionable, or the 
 evidence shows that the mind of the parties have not, in fact, 
 come together, relief will be refused." Bispham'sEq. (4th ed.), 
 Sec. 189, and Wistar's App., 30 P. F. Sm. 484. 
 
 6 Mere inadequacy of consideration is not sufficient to set a 
 transaction aside. Slater v. Maxwell, 6 Wallace, 273; "Bedel v. 
 Loomis, 11 N. H. 9. 
 
FAMILY ARRANGEMENTS. 323 
 
 that case, Lord Cottenham, after commenting on the 
 fact that the father might well have been anxious for 
 the reunion of the two estates, proceeded as follows : — 
 " By what scale of money consideration are these ob- 
 jects to be estimated? The impossibility of estimat- 
 ing them has led to the exemption of family arrange- 
 ments from the rules which affect others. The consid- 
 eration in this and in other such cases is compounded 
 partly of value and partly of love and affection." 
 
 In order that a compromise should be binding there Compro- 
 must be uberrima fides — full disclosure of everything mise. 
 material. 7 To make a compromise of any value the 
 parties must be at arm's length, on equal terms, with 
 equal knowledge and with sufficient advice and protec- 
 tion 8 (Maxon v. Payne, L. E. 8 Ch. 881). This point 
 is well illustrated by the -^ case of Gordon v. Gordon [ jf 210] 
 (3 Swanston, 400), where an agreement between two Conceal- 
 brothers for the division of the family property was set meljt ? f 
 aside after nineteen years, on the ground that the ]£^ enal 
 younger brother knew that there had been a ceremony 
 which was called a private marriage and concealed this 
 knowledge, and Lord Eldon said that whether he did 
 so designedly " or in an honest opinion of the invalidity 
 of the ceremony and of a want of obligation on his 
 part to make the communication, the Court could not 
 sanction the arrangement." 
 
 The practice with regard to compromises has been 
 made the subject of consideration in several recent cases. 
 
 In Be Cordova v. Be Cordova (4 App. Cas. 692) it 
 was held that a secret arrangement, even though not 
 legally binding, was sufficient to vitiate a compromise. 
 
 In Gilbert v. Endean (9 Ch. D. 259), Jessel, M.E., 
 stated, though the point was not necessary for the de- 
 cision of the matter before him, that where the object 
 is not to supply a technical defect, but to decide a sub- 
 tantial question between the parties, a new action ought 
 to be brought. 
 
 In In re Birchall, Wilson v. Birchall (16 Ch. Div. 
 43), it was held that though the Court can approve a 
 compromise on behalf of infants, it cannot force a com- 
 promise upon them against the opinion of their legal 
 advisers. Jessel, M.B., stated that it was his own prac- 
 
 7 Family arrangements in order to be upheld in equity must be 
 made with full disclosure. Stub v. Lies (supra). 
 
 8 In such transactions, distress and necessity will be presumed 
 to exist and the onus of proving that the consideration is an ad- 
 dequate one is thrown on the purchaser. Maston v. Marlow. 65 
 N. C. 695; Poor v. Hazelton, 15 N. H. 564; Boynton v. Hubbard, 
 7 Mass. 112; Larrabee v. Id., 34 Maine, 477. 
 
324 
 
 CONVERSION OF WASTING SECURITIES. 
 
 tice and that of his predecessor to require not only that 
 the compromise should be assented to by the next friend 
 or guardian of the infant, but that his solicitor should 
 make an affidavit that he believes the compromise to be 
 beneficial to the infant, and that his counsel should give 
 an opinion that he considers it to be so. " If the opin- 
 ion given is only that of a junior counsel and there is 
 a leader, I ask the leader in Court whether he agrees 
 with the junior's opinion, and this was also Lord Rom- 
 illy's practice." 
 Withdrawal Where the Court has gone into the merits of the case 
 of consent to and assented to a deliberate compromise, a party who 
 compromise. Das instructed counsel will not be allowed to retract his 
 consent, but a consent given by inadvertence may be 
 withdrawn at any time before the order is drawn up : 
 Davis v. Davis (13 Ch. D. 861) ; and see Harvey v. 
 Croydon Rural Sanitary Authority (26 Ch. Div. 249), 
 where the previous cases are considered. Counsel and 
 attorney have, unless forbidden, authority to compromise, 
 but not out of Court : Swinfen v. Swinfen (18 C. B. 
 485) Fray v. Vowles (1 Ell. & Ell. 839) ; Prestwich v. 
 Poley (18 C. B. (N.S.) 806) ; Chown v. Parrott (14 C. 
 B. (N.S.) 74). 
 
 In In re Cockcroft, Broadbent v. Grove (24 Ch. D. 94), 
 it was held that an order of compromise made in the 
 presence of the parties, and sanctioned by the Court, 
 would have been fatal to a claim if otherwise good. 
 
 It was held in In re Norwich Provident Insurance 
 Society, Bath's Case (8 Ch. Div. 334), that a company has, 
 as incident to its existence, the same power of avoiding 
 litigation by a compromise as an individual possesses. 
 
 [*2H] 
 
 •^Conversion of wasting Securities. 
 
 MACDONALD v. IRVINE. 
 (8 Ch. Div. 101.) 
 Principle. The rule of Howe v. Earl of Dartmouth is to 
 
 be applied unless upon the fair construction of 
 the will there is a sufficient indication of inten- 
 tion against it. The burden of proof in every 
 case rests upon the person who says it is not to be 
 applied. 1 
 
 A testator, after giving certain specific legacies, 
 1 In the United States where specific goods as corn, wine, or 
 
CONVERSION OF WASTING SECURITIES. 325 
 
 gave the residue of his estate, which consisted inter Summary of 
 
 alia of Egyptian Bonds called "Khedive Bonds," tacts - 
 
 and household furniture to his nephew. After the 
 
 date of the will he married, and subsequently made 
 
 a codicil, by which he gave to his wife for her life 
 
 " all the income dividends and annual proceeds of 
 
 his entire estate, and postponed the payment of all 
 
 legacies and the distribution of all estates vested in 
 
 him, or over which he had any power of disposition 
 
 or appointment until after her decease," and subject 
 
 thereto revived and confirmed his will. 
 
 The Court of Appeal decided that the estate must 
 be converted in accordance with the rule in Howe 
 v. Earl of Dartmouth? 
 
 A variety of questions arose in this case, but the only Eule of Howe 
 one which it is here proposed to consider was whether v. Earl of 
 the rule of Howe v. Lord Dartmouth (as it is called), Dartinouth. 
 settled by the decision of Lord Eldon (7 Vesey, 137) in 
 1802, was to be applied or not to the facts before the 
 Court. That rule was stated in the judgment in the 
 leading case (8 Ch. Div. 121) as follows: — "that where 
 personal estate is given in terms amounting to a gen- . 
 
 eral residuary bequest to be enjoyed by persons in suc- 
 cession, such persons are to enjoy the same thing in 
 succession, and accordingly the Court effectuates the 
 presumed intention of the testator by the conversion 
 into investments approved by the Court of so much of 
 the personalty as is at the death of the testator of a 
 wasting or perishable or insecure nature, and also of 
 ■jf reversionary interests." In the leading case there [-^212] 
 was this peculiarity, that there was no tenancy for life 
 created by the will, and accordingly the will per se could 
 not possibly afford any evidence or indication of inten- 
 tion of the testator as to how the property was to be 
 enjoyed. Subsequently the testator married. He then 
 
 hay, are left to a certain individual for life and a remainder over, 
 the remainder is void and the first taker takes absolutely. But 
 if the gift is of articles which are not consumed but only worn or 
 deteriorated by use a remainder over is good. 
 
 2 If the gift is residuary, the property, no matter of whatever 
 kind, must be sold and the interest on the amount realized paid 
 to the tenant for life. Homer v. Shelton, 2 Metcalfe, 194 ; Cov- 
 enhoven v. Shuler, 2 Paige, 132 ; Calhoun v. Furgeson, 3 Rich. 
 Eq. 165 ; Kinnard v. Id., 5 Watts, 108 ; Saunders v. Haughton, 
 8 Ired. Eq. 217. 
 
326 CONVERSION OF WASTING SECURITIES. 
 
 by a codicil introduced a tenancy for life in favour of 
 his wife, and in other respects confirmed his will, which 
 would otherwise have been revoked by sect. 18 of the 
 Wills Act (1 Vict. c. 26). " If," said James, L. J., "the 
 testator had simply inserted in the will as the first gift, 
 'I give to my wife the income, dividends, and annual 
 produce of my entire estate,' I think that would not have 
 been according to the fair construction of the decided 
 cases, any indication of an intention that she was to 
 have anything more than the income, dividends, and 
 annual produce of the whole of the estate, that is to say, 
 of that which would remain of the estate after the debts, 
 funeral and testamentary expenses had been paid, and 
 the property had been converted and properly dealt 
 with according to the duties imposed upon his legal per- 
 sonal representatives. The other words, that he post- 
 poned the payment of all legacies, the distribution of 
 all estates vested in him or over which he had a power 
 of disposition, until after her decease, meant nothing 
 more than that he intended the life estate of his wife to 
 be paramount to any gift however clear and specific." 3 
 The two clauses taken together were therefore not in the 
 opinion of the Court sufficient to indicate an intention 
 to take the case out of the ordinary rule of conversion 
 established by Howe v. Lord Dartmouth. 
 
 It is also settled by the authorities (8 Ch. Div. 124) 
 that the rule must be applied unless upon the fair con- 
 struction of the will there is found a sufficient indication 
 of intention that it is not to be applied, the burden in 
 every case being upon the person who says the rule of 
 the Court of Chancery ought not to be applied in the 
 particular case. 
 
 In the celebrated case of Brown v. Gellatly (L. R. 2 
 Ch. 751) the testator, who was a shipowner and mer- 
 chant, directed his executors to realise his personal es- 
 tate " when and in such manner as they should think 
 fit without being personally responsible for such reali- 
 sation," and gave them power to sail his ships for the 
 benefit of his estate until they could be satisfactorily > 
 sold. He then left his residuary estate to tenants for 
 life with remainders over, and gave his executors the 
 most ample discretionary powers to invest or to allow 
 to remain as invested, his funds in certain specified 
 securities. Three questions arose in the case : first, as 
 to the ships which had earned large profits ; secondly, 
 as to the authorized securities ; thirdly, as to the "un- 
 
 3 Freeman v. Cook, 6 Ired. Eq. 379 ; Eichelberger v. Baruetz, 
 17 S. & E. 293 ; Rogers v. Id., 7 Watts, 19. 
 
CONVERSION OF WASTING SECURITIES. 327 
 
 authorized securities " which were not proper for the 
 investment of trust moneys. "With regard to the first 
 point, the Court of Appeal decided (distinguishing 
 Green v. Britten (IDe G. J. & S. 649), where there 
 was an absolute prohibition against converting the ships 
 for seven years except in an event which did not hap- 
 pen) that the testator intended that they should be con- 
 verted cautiously, and that accordingly, as in Meyer v. 
 Simonsen (5 De G. & S. 723), a value should be set upon 
 them as at the death of the testator, and that the tenant 
 for life was entitled to -^ 4 per cent on such valu«, and [ -^ 213] 
 that the residue must be invested and become part of 
 the estate. As to the second point, the Court held that 
 the tenant for life was entitled to the actual income of 
 the authorised investments. Thirdly, as to the " un- 
 authorised" investments, that the tenant for life, accord- 
 ing to the rule of Dimes v. Scott (4 Buss. 195), fol- 
 lowed in Taylor v. Clarke (1 Hare, 161), was only en- 
 titled to the interest of so much consols as would have 
 been realised by a sale of the unauthorized investments 
 and investment of the proceeds in consols. 4 
 
 In Gray v. Siggers (15 Ch. T>. 74) the testator after 
 giving perishable property to trustees, of whom his 
 wife was one, on trust to pay the income to his wife for 
 life, and tben to his grandchildren, added a declaration 
 in the following terms — " That the trustees are at lib- 
 erty to retain the leasehold property in specie, and any 
 other investment held by the testator, for such period 
 as they in their discretion may think "fit." Vice-Chan- 
 cellor Malins .held that though if the case had rested on 
 the first part of the will taken alone, it would have been 
 . clearly brought within the principle of Howe v. Earl of 
 Dartmouth [ubi supra) and MacDonald v. Irvine (ubi 
 supra), the very precise declaration contained in the 
 will took it completely outside that rule. 
 
 In In re Chancellor, Chancellor v. Brown (26 Ch. Div. 
 42), a testator had devised and bequeathed his real and 
 personal estate, the bulk of wbich consisted of his busi- 
 ness and the premises on which it was carried on, to 
 trustees upon trust to sell and convert, and invest the 
 proceeds and pay the income to his wife for her life 
 and after her death to her children. The trustees had 
 power to postpone conversion, and there was the usual 
 declaration that until sale the net rents, profits, and in- 
 come should be paid to the persons to whom the income 
 would be payable if the sale had not actually been made. 
 
 4 Hill on Trustees, 388 ; Yates v. Yates, 28 Beav. 637 ; Wil- 
 liamson v. Williamson, 6 Paige, 303. 
 
328 LOCKE king's acts. 
 
 The will contained no reference to his business, and the 
 executors carried it on for nearly two years. The Court 
 of Appeal decided that the profits of the business were 
 to be treated as income on the ground that the execu- 
 tors had an implied authority to carry on the business, 
 and that the testator had expressly directed that the 
 profits of his estate were to be treated as income. 5 
 
 "It is quite true," said the Court of Appeal, "that 
 the discretionary powers exercised by trustees are not 
 to affect the rights of beneficiaries, but when a testator 
 himself expressly directs what shall be done with the 
 income accruing during the period the sale is postponed, 
 the general rule does not apply, and we are at liberty 
 to give effect to the plainly expressed intention of the 
 testator. It would be a strong thing to say that the 
 sale of his business was not contemplated by the testa- 
 tor, and could not be postponed by his trustees for a 
 reasonable period. To postpone the sale of the busi- 
 ness involved the continuing it in the meantime. The 
 testator has therefore directed that his business Bhall 
 be carried on until it is sold, and that the profits of it 
 until sale shall be paid to the person entitled to the in- 
 come of his trust estate." 
 
 See Seton on Decrees, 4th ed. pp. 999 et seq , where 
 the very numerous cases on conversion of wasting se- 
 curities are collected. 
 
 [ ■£- 214] if Locke Xing' s Acts. 
 
 In re NEWMARCH, NEWMARCH v. STORR. 
 (9Ch. Div. 12.) 
 
 Principle. A charge of '" debts" or "just debts" on part 
 
 of a testator's real estate in aid of his personal 
 estate and in exoneration of his other real es- 
 tate, is not a sufficient expression of intention 
 within the meaning of Locke King^s Acts to ex- 
 onerate the mortgaged estates from the payment 
 of the mortgaged debt. 
 
 Newmarch, the testator in this action, had mort- 
 
 5 The leaning of the court is in favor of treating gifts as far as 
 possible specific, and they will seize hold of very slight circum- 
 stances to do it. 2 Spence's Eq. 42 and 554 and authorities there 
 cited. 
 
LOCKE king's acts. 329 
 
 gaged the whole of his real estate except seven cot- Summary of 
 tages for £1000. By his will he devised his real es- factSi 
 tate in the following manner : — 
 
 1. A close called "Bean Butts" and the seven 
 cottages to trustees for his wife and children. 
 
 2. A house and garden to his daughter and her 
 children. 
 
 3. His mill with the lands in his own occupation 
 and the residue of his real estate to his sons, 
 " charged nevertheless in aid of my personal estate 
 and in exoneration of my other real estate with the 
 payment of my just debts." The Court of Appeal 
 decided that all the real estates subject to the mort- 
 gage must contribute rateably (i.e. in proportion to 
 their respective values) towards the payment of the 
 £1000 mortgage debt. 
 
 The law with regard to the mode in which mortgage 
 debts are to be borne has' been completely changed by 
 three Acts: 
 
 1. Locke King's Act (17 & 18 Vict. c. 113), applying Locke King's 
 only in cases where the person dies on or after the 1st Act. 
 January, 1855. 
 
 2. 30 & 3 1 Vict. c. 69, applying in the construction Locke King's 
 of the will of any person who may die after the 31st Act Amend- 
 December, 1867. ment Act 
 
 ■^■3. 40 & 41 Vict. c. 34, applying to any testator or r^- 215] 
 intestate dying after the 31st December, 1877. 40 & 41 Vict. 
 
 In cases not falling within the operation of any of c - 34 - 
 these statutes the heir-at-law or devisee was entitled as 
 a general rule to have the land exonerated from the 
 mortgage debt out of the general personal estate. 
 There were, however, certain exceptional cases in which 
 under the old law, i.e.- before 17 & 18 Vict. c. 113, the 
 mortgaged land had to bear its burden. These cases, 
 which will be found very fully discussed with the au- 
 thorities establishing them in Jarman on Wills, vol. ii. 
 p. 634 et seq., may be shortly summarised as follows: — 
 (1) Where there were express words or a plain inten- 
 tion of the testator that the devisee should take cum 
 onere, i.e. subject to the mortgage debt. In order to 
 effect this, there must be sufficient to indicate an in- 
 tention, not only to charge the real estate, but also to 
 
330 LOCKE king's acts. 
 
 exonerate the personalty, " subject to the mortgage' or 
 incumbrance thereupon" being treated as merely de- 
 scriptive of the incumbered condition of the property. 
 (2) Where the charge was in its nature real, as in the 
 case of a jointure or of pecuniary portions to be raised 
 out of land. (3) Where the debt was not contracted 
 by the person who died last seised or entitled, but the 
 land came to him cum onere unless he manifest an in- 
 tention to adopt it. 
 17 & 18 Vict. Locke King's Act (17 & 18 Vict. c. 113) provides 
 c - 113 - "that where any person shall after the thirty-first day 
 
 of December one thousand eight hundred and fifty-four 
 die seised of or entitled to any estate or interest in any 
 land or other hereditaments, which shall at the time of 
 his death be charged with the payment of any sum or 
 sums of money by way of mortgage, and such person 
 shall not by his will or deed or other document have 
 signified any contrary or other intention, the heir or 
 devisee to whom such land or hereditaments shall de- 
 scend or be devised shall not be entitled to have the 
 mortgaged debt discharged or satisfied out of the per- 
 sonal estate or any other real estate of such person; but 
 the land or hereditaments so charged shall as between 
 the different persons claiming through or under the de- 
 ceased person be primarily liable to the pa) ment of all 
 mortgaged debts with which the same shall be charged, 
 every part thereof according to its value bearing a pro- 
 portionate part of the mortgaged debts charged on the 
 whole thereof. Provided always that nothing herein 
 contained shall affect or diminish any right of the mort- 
 gagee on such lands or hereditaments to obtain full sat- 
 isfaction of his mortgage debt either out of the personal 
 estate of the person so dying as aforesaid or otherwise. 
 Provided also that nothing herein contained shall affect 
 the rights of any person claiming under or by virtue 
 of any will, deed, or document already made or to be 
 made before the first day of January one thousand 
 eight hundred and fifty-five." The interpretation of 
 this Act has given rise to a good many difficulties which 
 are now of little more than antiquarian interest, having 
 to a large extent been removed by the subsequent legis- 
 lation in the Amendment Act presently noticed. (See 
 Eno v. Tatham (4 Giff. 181; 3 D. J. & S. 443); Moon 
 [ * 216] v. Moon * (1 D. J. & S. 602), Elliott v. Dearsley (16 
 Ch. Div. 322) ; and cases collected in Seton on Decrees, 
 4th ed. pp. 899, 900; Jarman on Wills, 6th ed., vol. 2, 
 pp. 647 et seq.) 
 
LOCKE KING'S ACTS. 331 
 
 Locke King's Amendment Act (30 & 31 Vict. c. 69) 30 & 31 Vict, 
 provides that — c. 69. 
 
 (1) In the construction of the will of any person who 
 may die after the thirty-first day of December one 
 thousand eight hundred and sixty-seven a general di- 
 rection that the debts or that all the debts of the testa- 
 tor shall be paid out of his personal estate, shall not be 
 deemed to be a declaration of an intention contrary to 
 or other than the rule established by the said Act, un- 
 less such contrary or other intention shall be further 
 declared by words expressly or by necessary implica- 
 tion referring to all or some of the testator's debts or 
 debt charged by way of mortgage on any part of his 
 real estate. 
 
 (2) In the construction of the said Act and of this 
 Act the word mortgage shall be deemed to extend to 
 any lien for unpaid purchase money upon any lands 
 
 , or, hereditaments purchased by a testator. 
 
 With regard to this latter Act, Jessel, M.R., in the 
 leading case observed, " It was a construing and ex- 
 plaining Act; it did not profess to amend the former 
 Act, but to set aside the interpretation that had been 
 put upon it; it was, in fact, a polite way of overruling 
 the decision of the Court of Chancery." 
 
 Three points were considered in the leading case — 
 
 1. Do the Acts apply at all where there is a question 
 of contribution between devisees of different portions 
 of an estate subject to one mortgage debt? 
 
 2. Supposing this question to be answered in the af- 
 firmative, what is a sufficient declaration of contrary 
 intention in a will to satisfy the Acts ? 
 
 3. Whether the will in question contains a sufficient 
 declaration of a contrary intention. 
 
 With Regard to the first point it was held that the 
 words "any other real estate of such person" mean 
 "other real estate not descended or devised to such 
 heir or devisee," not " other real estate not comprised 
 in the mortgage," and that consequently the words 
 amounted to an express enactment that unless the tes- 
 tator has signified a contrary or other intention, the 
 different parts of the charged estate shall in the hands 
 of the devisees bear proportionate parts of the mort- 
 gage debt according to their value. Points 2 and 3 
 were disposed of as follows. Since 30 & 31 Vict. c. 
 69, a mere charge of debts on personalty does indicate 
 a sufficient-intention to exonerate the mortgaged estate, 
 and the words in the present will " just debts " and 
 " in aid of* my personal estate and in exoneration of 
 
332 LOCKE king's acts. 
 
 my other real estate," were treated as merely amount- 
 ing to a declaration that the real estate was to be ex- 
 onerated only to the same extent as the personalty was 
 aided, and as by Locke King's Act the personal estate 
 is not liable, their practical effect was nothing. 
 
 It was held in Harding v. Harding (L. R. 13 Eq. 
 493) that the Act 30 & 31 Vict. c. 69, did not apply to 
 [-^■217] the case of an intestate. This -^ and other deficiencies 
 40 & 41 Vict, were supplied by 40 & 41 Vict. c. 34, which provides 
 c - 34 - that the Acts mentioned in the schedule (i.e. 17 & 18 
 
 Vict. c. 113, 30 & 31 Vict. c. 69) hereto shall as to any 
 testator or intestate dying after the thirty-first of De- 
 cember, one thousand eight hundred and seventy-seven, 
 be held to extend to a testator or intestate dying seised 
 aments of whatever tenure which shall at the time of 
 or possessed of or entitled to any land or other heredit- 
 his death be charged with the payment of any sum or 
 sums of money by way of mortgage or any other equi- 
 table charge, including any lien for unpaid purchase- 
 money, and the devisee or legatee or heir shall not be 
 entitled to have such sum or sums discharged or satis- 
 fied out of any other estate of the testator or intestate 
 unless (in the case of a testator) he shall within the 
 meaning of the said Acts have signified a contrary in- 
 tention; and such contrary intention shall not be 
 deemed to be signified by a charge of or direction for 
 payment of debts upon or out of residuary real and 
 personal estate, or residuary real estate. 
 
 In In re Sossiter, Rossiter v. Rossiter (13 Ch. D. 
 355), a testator by a will dated in 1877 directed his 
 executors to pay all his just debts, funeral and testa- 
 mentary expenses, in exoneration of his real estate. 
 The question was how a debt due on the security of 
 part of his real estate was to be borne. It was held 
 that the mortgaged estate must primarily bear the 
 mortgage debt. Jessel, M.R., in delivering judgment, 
 said that Locke King's Amendment Act was exactly in- 
 tended to meet such expressions as these. The testa- 
 tor, he said, was under the mistaken notion that his 
 debts and funeral and testamentary expenses were 
 primarily charged on his real estate, but the Act ex- 
 pressly said that a direction was insufficient to exone- 
 rate the mortgaged estate. " Why," asked his Lord- 
 ship, " should I make a difference because the testator 
 did not know the law. In my opinion there is nothing 
 here referring by necessary implication to any debt 
 charged by way of mortgage on the real estate." 
 
 The three statutes were considered in In re Cock-" 
 
LOCKE king's acts. 333 
 
 croft, Broadbent v. Groves (24 Ch. D. 94), where they 
 were spoken of, probably with reference to the drafting 
 only, as affording by no means a favourable specimen 
 of legislation. In that case a testator had contracted 
 to buy real estate, and had paid a deposit. In 1881 he 
 specifically devised the real estate to his daughter for 
 life, with remainder to her children, but the will did 
 not contain any intimation either express or implied 
 that the purchase- money should be paid out of the per- 
 sonal estate, which was rather less than the balance of 
 the purchase-money. The testator having died with- 
 out having completed the purchase, an action for 
 specific performance was commenced against his exe- 
 cutors and trustees, which was compromised on the 
 terms that the contract should be rescinded and that 
 the vendor should retain the deposit and be paid his 
 costs, and this compromise was afterwards confirmed 
 by an order made in the administration action in the 
 presence of the tenant for life and the trustee, and 
 with the sanction of the Court. 
 
 It was held that this was a case of " vendor's lien," 
 to which the + Act of 1877, 40 & 41 Vict. c. 34, ap- r + 218] 
 plied; that accordingly all the devisees were entitled 
 to, was the real estate charged with the unpaid pur- 
 chase-money, in other words to nothing, and that in 
 any case all claim was barred by the order of compro- 
 mise. 
 
 The law on this subject was recently considered in 
 the case of In re Smith, Hannington v. True, Giles v. 
 True (33 Ch. D. 195), where the previous decisions in 
 Sackville v. Symth (JL. R. 17 Eq. 153) and Gibbins v. 
 JSyden (L. R. 7 Eq. 371) were followed, and Broumson 
 v. Lawrance (L. R. 6 Eq. 1) dissented from. A testa- 
 tor, after directing the payment of his debts, devised a 
 freehold house to his wife " absolutely to do with as 
 she thinks proper;" and he requested his executors to 
 sell and convert into money whatever freehold or other 
 property he possessed, and to collect all debts due to 
 him, and to apply the proceeds in the payment of cer- 
 tain legacies. The testator's real estate was all subject 
 to one mortgage. The Court decided that the mort- 
 gage debt must be borne rateably by all the properties 
 comprised in the mortgage. North, J., in delivering 
 judgment, said: "I can find nothing else in the will to 
 take the case out of the general rule except the words 
 'absolutely to do with as she thinks proper.' But that 
 is no more than a gift to the widow in fee, it does not 
 say that she is not to take the house subject to its pro- 
 
334 
 
 VOLUNTARY SETTLEMENTS. 
 
 portion of the mortgage debt. It would come to this, 
 that every devise of an absolute interest in real prop- 
 erty would be an expression of a ' contrary or other in- 
 tention.' " 
 
 Voluntary Settlements. 
 
 FREEMAN v. POPE. 
 (L. E. 5 Ch. 538.) 
 
 Principle. A voluntary settlement may be set aside under 
 
 13 Eliz. c. 5, without proof of actual intention 
 to defeat, hinder or delay creditors, if, under 
 the circumstances, the instrument will necessa- 
 rily have that effect} 
 
 Summary of 
 facts. 
 
 The settlor, who was under pressure from his 
 creditors, made a voluntary settlement of certain 
 property for the benefit of Julia Pope. The settle- 
 ment withdrew from his assets such an amount as 
 to render them insufficient to pay his debts. Held, 
 by the Court of Appeal, that the settlement must 
 be set aside. 2 
 
 T -4r 2191 "^ This case is always cited as the leading authority 
 
 upon the subject of settlements "with intent to delay 
 or defraud creditors." In In re Ridler, Ridlerv. Ridler 
 (22 Ch. Div. 74), see post, p. 220, Jessel, M.E., in the 
 course of the argument (p. 78), asked, " Do you dispute 
 
 1 A voluntary alienation of property, is, as a rule, void against 
 creditors. 2 Kent's Com. 441. Note, to Sexton r. Wheaton, 1 
 Am. Lead. Cas. 37. A fraudulent intention will vitiate a settle- 
 ment and may be implied from the circumstances; but a volun- 
 tary settlement will be good as against subsequent creditors 
 unless made with a fraudulent intention. The mere fact that a 
 conveyance is voluntary is not, of itself, sufficient indication of 
 fraud. Horlan v. Maglaughlin, 9 Norris. 217; Sexton v. Whea- 
 ton, 8 Wheaton, 229; Mattlngly v. Nye, 8 Wallace, 370; Salmon 
 v. Bennett, 1 Conn. 525. 
 
 2 If a settlement be made with a fraudulent intention it is 
 void. See Haymaker's App., 3 P. F. Smith, 306; Mosley v. 
 Gainer, 10 Texas, 393; Poague». Boyce, 6 J. Marsh, 70; Florence 
 Sewing Machine Co. v. Zeigler, 58 Ala. 221. 
 
VOLUNTARY SETTLEMENTS. 335 
 
 the law as laid down in Freeman v. Pope?" and was at 
 once met by an emphatic negative. 
 
 The judge before whom the case originally came, and 
 whose decision setting aside the settlement was upheld 
 by the Court of Appeal, seems to have felt a difficulty 
 whether if the case had come before him as a special 
 juryman, he could have arrived at the conclusion that 
 the settlor had any intention to defeat or delay his cred- 
 itors. On this point the Court of Appeal stated that, 
 were it necessary-to decide the point, they would very 
 probably have concluded that the settlor's mind was so 
 full of considerations of kindness and generosity for 
 the lady whom he intended to benefit that he forgot the 
 higher claims of his creditors. 
 
 The fact, however, being once established that the 
 settlor had not left sufficient property outside the set- 
 tlement to pay his debts, it was unnecessary " to specu- 
 late as to what was passing in his mind." "It is estab- 
 lished," said Lord Hatherley, " by the authorities that 
 in the absence of any such direct proof of intention, 
 if a person owing debts makes a settlement which sub- 
 tracts from the property which is the proper fund for 
 the payment of those debts, an amount without which 
 the debts cannot be paid, then, since it is the necessary 
 consquence of the settlement 3 (supposing it effectual) 
 that some creditors must remain unpaid, it would be the 
 duty of the judge to direct the jury that they must 
 infer the intent of the settlor to have been to defeat or 
 delay his creditors, and that the case is within the 
 statute." 
 
 " There is," said Giffard, L. J., " one class of cases in Where in- 
 which an actual and express intent is necessary to be tention must 
 proved, as in Holmes v. Penney (3 K. & J. 90) and Lloyd be P roved - 
 v. Attwood (3 De G. & J. 614), where the instruments 
 sought to be set aside were founded on valuable con- 
 sideration,* but where the instrument is voluntary, then 
 the intent may be inferred in a variety of ways; for in- 
 stance, if after deducting the property which is the 
 subject of the voluntary settlement sufficient available 
 assets are not left for the payment of the settlor's debts, 
 then the law infers intent, and it would be the duty of 
 
 3 If the property which the settlor has remaining after making 
 the settlement is sufficient to discharge all his debts, there is no 
 ground for impeaching the transaction and such conveyance will 
 be good as against subsequent creditors unless the grantor makes 
 the voluntary settlement when about to, and after he has made 
 the settlement enters into a hazardous enterprise. Williams v. 
 Davis, 19 P. F. Sm. -21; Snyder v. Christ, 3 Wright, 499. 
 
 * Clements v. Moore, 6 Wallace, 312. 
 
336 VOLUNTARY SETTLEMENTS. 
 
 a judge in leaving the case to the jury to tell the jury- 
 that they must presume that that was the intent. 
 Again, if at the date of the settlement the person mak- 
 ing the settlement was not in a position actually to 
 pay his creditors the law would infer that he intended 
 by making the voluntary settlelnent to defeat and delay 
 them." 
 
 The same view of the law is also expressed in Ridler 
 v. Ridler (noticed post) (12 Ch. Div. p. 82*. 
 13 Eliz. c. 5. The statute 13 Eliz. c. 5, which was stated by Lord 
 Mansfield in Cadogan v. Kennett (Cowp. 434) to be 
 declaratory of the Common Law, provides that all 
 feoffments, gifts, grants, and conveyances of lands or 
 goods or any profit thereof by writing or otherwise 
 [ -j^- 220] made with -fa intent to delay, hinder, or defraud cred- 
 itors or others of their lawful actions, debts, damages, 
 &c, shall be utterly void against the creditors or per- 
 sons having the right to such actions, debts, &c. 5 Sect. 
 Sect. 2. 2 imposes penalties and forfeitures on all persons who 
 
 Sect. 6. are parties to fraudulent conveyances. By sect. 6, how- 
 
 ever, the Act is not to extend to any estate or interest 
 in land for good consideration and bona fide conveyed 
 to any person not having at the time notice of the 
 Principle of fraud. 6 The principle on which this statute proceeds 
 the Act. (which, it will be observed, is not, like 27 Eliz. c. 4, 
 
 confined to lands) was stated by Lord Hatherley in the 
 leading case to be that persons " must be just before 
 they are generous, and that debts must be paid before 
 gifts can be made." 7 See the decisions on the statute 
 collected in Chitty's Statutes, 4th ed. vol. ii. 1263 et 
 seq., and the notes to Twyne's Case, 1 Smith's Leading 
 Cases, p. 1 ; and see Ex parte Russell, In re Butterworth 
 (19 Ch. Div. 588), Dutton v. Thompson (23 Ch. Div. 
 278), In re Maddever, Three Towns Banking Company 
 v. Maddever (27 Ch. Div. 5^3). 
 
 In Ridler v. Ridler (22 Ch. Div. 74), where the pre- 
 vious authorities on the subject are collected, a father 
 gave a bank a written guarantee for repayment of the 
 balance on his son's account not to exceed £1,000. 
 Five years afterwards, when the son's account was over- 
 drawn by £1,500, the father made a voluntary settle- 
 ment of the whole of his property except certain furni- 
 
 6 Thompson v. Dougherty, 12 S. & E. 448;* Amnion's App., 13 
 P. F. Sm. 284. 
 
 6 The consideration will not avail if the bond fide be wanting, 
 Bispham's Eq. (4th Ed.), Sect. 243. 
 
 7 A conveyance to a wife or child will not be valid as against 
 ereditors. Bump on Fraudulent Conveyances, 248 ; a,lso 249, 
 250. 
 
VOLUNTARY SETTLEMENTS. 337 
 
 ture -worth about £200, and a debt due from the son to 
 him of £1,500. The son subsequently became bank- 
 rupt, and after the father's death the bank sought to 
 set aside the settlement. Held, that the settlement 
 must be set aside. 8 In the course of the argument Lord 
 Selborne pointed out that where the prospect that the 
 person subject to the liability will be called upon, is so 
 remote that it would not enter into anyone's calcula- 
 tions, it would seem that the existence of the contingent 
 liability would not make a settlement bad. For in- 
 stance, if a person had taken shares in the Glasgow 
 Bank at a time when everybody believed them to be a 
 valuable property, it would be difficult to bold that a 
 settlement made by him while the bank was in good 
 credit was invalid, though the liability ultimately turned 
 out ruinous. 
 
 The doctrine of Freeman v. Pope was very recently 
 considered in Ex parte Mercer, In re Wise ( 17 Q. B. 
 Div. 290), where the question was whether a post- 
 nuptial settlement which had been executed under some- 
 what peculiar circumstances (there being a pending 
 action for breach of promise of marriage against the 
 settlor at the time when he executed the settlement) 
 was frauduleut and void as against the trustee in bank- 
 ruptcy, and the Court held that there was not sufficient 
 evidence to justify a judge or jury in finding that it was 
 " intended to delay, hinder, or defraud creditors " within 
 13 Eliz. c. 5. 9 The actual decision in the leadingcases 
 is doubtless consistent with that in Ex parte Mercer, 
 In re Wise (ubi sup.), though certain dicta contained 
 in the latter judgment (pp. 299, 300) would appear to 
 be irreconcilable with the statement of the law con- 
 tained in Freeman v. Pope. 
 
 Voluntary settlements must be carefully distinguished Settlement 
 from settlements for valuable consideration where, as for valuable 
 pointed out in the leading -^- case, an actual fraudulent [ -^- 221] 
 intent must be proved. 10 It was laid down in Colum- considera- 
 te v. Penhall (1 Sm. & G. 228) that where there is tion - 
 evidence of an intent to defeat and delay creditors, and 
 to make the celebration of marriage part of a scheme Marriage 
 to protect property against the rights of creditors, the settlement. 
 consideration of marriage cannot support suchasettle- 
 
 8 Property conveyed in fraud of creditors may he reached by 
 a creditor's bill. See Spader v. Davis, 2 Johns. Chan. 280, tried 
 in 1821. 
 
 9 The statute of 13 Eliz. has been substantially re-enacted 
 and its provisions adopted in most of the United States. 2 Kent 
 Com. 440. 
 
 10 Bispham's Equity (4th Ed.), Sect. 243. 
 
 22 MODERN EQUITY. 
 
338 
 
 MARSHALLING. 
 
 Bankruptcy 
 Act, 1883. 
 
 ment; and see Bulmer v. Hunter (L. R. 8 Eq. 46), 
 where the previous authorities are collected, In re John- 
 son, Golden v. Gillam (20 Ch. D. 389), where a settle- 
 ment by a widow of the whole of the property on con- 
 sideration of the settlor's daughters' paying her debts 
 connected with her farm and maintaining her, was sup- 
 ported as a family arrangement although it defeated 
 one of her general creditors." See also Davidson's 
 Conveyancing, vol. iii. pt. i. p. 628, and Seton on De- 
 crees, 4th ed. p. 1372. Sects. 29 and 47 of the Bank- 
 ruptcy Act, 1883, introduce very considerable alterations 
 into the law with regard to settlements, and it is to be 
 observed that neither of these sections is (as was sect. 
 91 of the Bankruptcy Act, 1869) confined to traders. 
 By sect. 29 the Court is empowered to refuse or suspend 
 an order of discharge, &c, &c. By sect. 47 all settle- 
 ments except (1) ante-nuptial settlements, (2) settle- 
 ments in favour of bona fide incumbrancer or purchaser 
 for value, (3) post-nuptial settlements of property ac- 
 quired in right of the wife after marriage, are void 
 against the trustee in bankruptcy if the settlor becomes 
 bankrupt within two years of the date of the settle- 
 ment. They are also void if the bankrupt becomes 
 bankrupt within ten years, unless the parties claiming 
 under the settlement can prove (1) that the settlor was 
 at the time of making the settlement able to pay all 
 his debts without the aid of the property settled; (2) 
 that the settlor's interest in the property settled had 
 passed to the trustee of the settlement on the execution 
 thereof. 
 
 [*222] 
 
 ic Marshalling 
 
 Principle. 
 
 Summary of 
 
 facts. 
 
 "WEBB v. SMITH. 
 (30 Ch. Div. 190.) 
 
 Assets will not be marshalled in favour of 
 a creditor to the prejudice of another man's 
 rights. 1 
 
 Smith & Co., a firm of auctioneers, had in their 
 hands two sums of money belonging to Canning, 
 
 11 As to a settlement from husband to wife, see Wickes «. 
 Clark, 8 Paige, 151 ; Penna. Salt Mfg. Co. v. Neal, 4 P. F. Sm. 
 9; Mellon v. Mulvey, 8 C. E. Green, 198. 
 
 1 Throughout the United States the general rule is that the 
 
MARSHALLING. 339 
 
 one consisting of part of the proceeds of the sale of 
 a brewery on which +hey were entitled to a particu- 
 lar lien for their charges in connection with sale, 
 the other the balance of the price of some furniture 
 sold by them for Canning. Canning, who owed 
 Webb £503, wrote to Smith & Co., requesting them 
 to pay Webb the £503 on the completion of the 
 purchase of the brewery, and to charge the same to 
 his account. Smith & Co. wrote to Webb acknow- 
 ledging the receipt of the letter, and subsequently 
 paid Canning the balance of the furniture fund and 
 appropriated the brewery money in part payment 
 of their charges in respect of the sale. Webb claim- 
 ed that Smith & Co. ought to have marshalled the 
 funds and paid themselves out of the furniture fund, 
 so as to leave the brewery money available forpay- 
 ment of his debt; but the Court of Appeal decided 
 that the doctrine of marshalling did not apply. 
 
 This case was characterised by the Court of Appeal 
 as one of considerable importance, " in which an ex- 
 periment was tried for the first time with regard to the 
 doctrine of marshalling," the difficulty arising from 
 certain expressions of Lord Eldon in the old case of 
 Aldrioh v. Cooper (8 Vesey, 382, 396) explained in the 
 leading case at page 200. The general principle of 
 marshalling, as stated in Trimmer v. Bayne (9 Vesey, 
 209, 211) by Sir W. Grant, whose statement was cited 
 with approval by the Court of Appeal, is "that a person 
 having resort to -fa two funds shall not by his choice [-Jt-2231 
 disappoint another having one only." 2 The same prin- 
 ciple is thus more elaborately stated and illustrated by 
 Cotton, L.J., in the leading case: "If A. has a charge 
 upon Whiteacre and Blackacre, and if B. also has a 
 charge upon Blackacre only, A. must take payment of 
 his charge out of Whiteacre, and must leave Blackacre 
 
 right of marshalling is usually enforced through the equities of 
 subrogation and contribution. The equity of marshalling assets 
 cannot be used to prejudice those who have an equal or superior 
 equity against the debtor on the subject of marshalling. See 
 Bruner's App., 7 W. & S. 269; American note to Aldrich n. Coop- 
 er, 2 Lead. Cas. Eq. 260; Reynolds v. Tooker, 18 Wendell, 591; 
 Ayers v. Husted, 15 Conn. 504; Johns v. Eeardon, 11 Md. 465. 
 2 Cheesebrough v. Millard, 1 Johns. Ch. 409; Ramsey's App.. 
 2 Watts, 228; Briggs «. The Planter's Bank, 1 Freeman's Ch. 574! 
 
340 
 
 MARSHALLING. 
 
 Application 
 of the 
 doctriue of 
 marshalling. 
 
 so that B., the other creditor, may follow it and obtain 
 payment of his debt out of it: in other words, if two 
 estates, Whiteaere and Blaekacre, are mortgaged to one 
 person, and subsequently one of them, Blaekacre, is 
 mortgaged to another person, unless Blaekacre is suffi- 
 cient to pay both charges, the first mortgagee will be com- 
 pelled to take satisfaction out of Whiteaere, in order to 
 leave to the second mortgagee Blaekacre, upon which 
 alone he can go." 3 
 
 Two further cases of the application of the doctrine 
 of marshalling were also pointed out in the same judg- 
 ment, viz., where under the old law specialty creditors 
 were compelled first to resort to real assets, and secondly 
 where two funds were in Court, and the Court, in order 
 to do justice, enforced marshalling as between the par- 
 ties. In the present case the Court of Appeal, while 
 deciding that the letter addressed by Canning to Smith 
 & Co., coupled with the acknowledgment of the letter 
 to Webb, constituted an equitable assignment in favour 
 of the latter, held that the doctrine of marshalling did 
 not apply. The peculiar circumstance on which the 
 leading case turned was this: Smith & Co. had, on the 
 authority of Robinson v. Rutter (4 E. & B. 954), a par- 
 ticular lien on the brewery fund. Now it is an estab- 
 lished principle that assets are not to be marshalled so 
 as to prejudice another man's rights. Why then should 
 Smith & Co. resign their lien and adopt an inferior 
 position. 
 
 This point was illustrated by an Admiralty case, The 
 Arab (5 Jurist, N. S. 417), in which the holder of a 
 bottomry bond tried to compel the crew of a ship to 
 waive their right of maritime lien for wages for services 
 rendered, and to sue the owners, who were perfectly 
 solvent. The holder of the bottomry bond had only a 
 remedy against the ship, whereas the crew had also a 
 personal remedy by action of debt against the owners. 
 The Judge of the Court of Admiralty held that he had 
 no jurisdiction to restrain the proceedings of the crew 
 against the ship, and to compel them to resort to a 
 personal remedy against the shipowners: and the 
 reason given was that there were not two funds under 
 the control of the Court. " In the present case," said 
 Lindley, L.J., " there were not two funds to which the 
 Defendants could resort, that is, two funds standing 
 
 3 The right may he enforced either hy injunction against the 
 paramount creditor, or hy suhrogation in favor of the junior 
 creditor. Thompson v. Murray, 2 Hill's Ch. 213; N. Y. Steam- 
 boat Co. u. N. J. Steamboat Co., 1 Hopkins, 460. 
 
MAKSHALLING. 341 
 
 upon an equal footing. The defendants had a superior 
 right of lien as to the fund produced by the sale of the 
 brewery. I think, however, that they could not have 
 deprived the plaintiff of the benefit of his charge, if 
 there had been two funds to which they might have re- 
 sorted under equal circumstances." * 
 
 The doctrine of marshalling was also carefully con- 
 sidered in Dolphin v. Aylward (L. R. 4 H. L. 486). 
 In that case Lord Westbury said: "The doctrine of 
 marshalling is no more than this, that where one person 
 has a clear right to resort to two funds, and another 
 person has -fa a right to resort to one only of these two [ -^ 224] 
 funds, the latter may say that, as between himself and 
 the double creditor, that double creditor shall be put 
 to exhaust the security upon which the single creditor 
 (if I may so call him) has no claim. But it would be 
 utterly impossible to apply that doctrine to a case 
 where the single creditor security is in truth himself 
 bound to the party entitled to the other." s And see 
 pages 502 and 503, where Lord Hatherley suggests 
 cases where the doctrine of marshalling might apply, 
 and as to marshalling securities see Ex parte Salting, 
 In re Stratton (25 Ch. D. 148), where Ex parte Alston 
 (L. E. 4 Ch. 168) was followed. 
 
 The doctrine of marshalling is also applied in favour "Widow's 
 of the widow's right to paraphernalia which, with the parapher- 
 exception of her wearing apparel, are liable for her hus- nalia. 
 band's debts, but not until after all his other assets, 
 real and personal, have been exhausted. If, therefore, 
 the paraphernalia are taken by creditors, the widow is 
 entitled to reimbursement by means of marshalling 
 against all assets, both real and personal, except, per- 
 haps, lands specifically devised. Williams, Heal Assets, 
 p. 118, where an opinion is expressed that since 3 & 4 
 Wm. IV. c. 104, the widow has a clear right to marshal 
 against specific devisees. See further on this subject 
 Maequeen, Husband and Wife, 3rd ed. p. 114; Law of 
 Husband and Wife, Edwards and Hamilton, p. 238, 
 where the authorities are collected. 
 
 It must, however, be remembered that the law with 
 regard to the gifts of articles of the nature of parapher- 
 nalia, "paraphernal articles" as they are called, has 
 
 * West v. The Bank of Rutland, 19 Vt. 403 ; Moses v. Eanlet, 
 2 N. H. 488; Findlay v. Hosmer, 2 Conn. 350. 
 
 5 Hannegan v. Hannah, 7 Blackf. 355, and American note to 
 Aldrich v. Cooper (supra); Kendall v. The New England Co., 13 
 Conn. 394; Lodwick v. Johnson, Wright's Oh. E., 498; Dorr v. 
 Shaw, 4 Johns. C. E. 17. 
 
342 . MARSHALLING. 
 
 been materially altered by the Married Women's Prop- 
 erty Act, 1882, which render's gifts to a wife by her 
 husband her separate property, so that the mere fact of 
 the articles being of a paraphernal nature will not 
 necessarily render them paraphernalia, and so liable to 
 be disposed of by the husband in his lifetime, and sub- 
 ject to the claims of his creditors during his life and 
 after his death, but that clear evidence will be required 
 to shew that they were given with the intention of be- 
 ing paraphernalia and not separate property. (Mac- 
 queen, Husband and Wife, p. 115.) 
 
 Charities. The Court will not marshal assets in favour of a char- 
 
 ity, but it will give effect to a direction to marshal. 6 If 
 a testator give his real estate and personal estate con- 
 sisting of personalty savouring of realty as leaseholds 
 and mortgage securities, and also pure personalty to 
 trustees upon trust to sell and pay his debts and lega- 
 cies and bequeath the residue to a charity, equity will 
 not marshal the assets by throwing the debts and ordi ; 
 nary legacies upon the proceeds of the real estate and 
 the personalty savouring of realty, in order to leave the 
 pure personalty for the charity. 7 See Tudor's Chari- 
 table Trusts, p. 85, and notes to Corbyn v. French, 
 Tudor s Real Property Cases, 561 et seq., where the au- 
 thorities are collected. In Mogg v. Hodges (2 Vesey, 
 52), Lord Hardwicke stated the principle to be that 
 though the Court would always marshal in furtherance 
 of justice, he did not consider himself warranted in set- 
 ting up an equity contrary to the rules of the Court in 
 order to support a bequest which was contrary to law. 
 
 I" -fa 225] -^ The rule of the Court in such cases is to appropri- 
 
 ate the fund as if no legal objection existed as to ap- 
 plying any part of it to the charity legacies, then hold- 
 ing so much of it to fail as would in that way be paya- 
 ble out of the prohibited fund. 8 Per Lord Cottenham 
 in Williams v. Kershaw (1 Keen, 275, n. ) ; and see 
 Robinson v. Governors of the London Hospital (10 
 Hare, 19); Johnson v. Lord Harrowby (Johns. 425); 
 Miles v. Harrison (L. E. 9 Ch. 316), following Lord 
 Selborne's decision in Wills v. Bourne (L. K. 16 Eq. 
 487). 
 
 6 Note to Aldrich v. Cooper, 2 Lead. Cas. Eq., 103. 
 
 7 Adams on Equity, *276. 
 
 8 Thompson's Exrs. v. Norris, 5 C. E. Green, 489. 
 
(343) 
 
 Fraud on a Power. 
 
 HENTY r. WREY. 
 (21 Ch. Div. 332.) 
 
 There is no rule of law that every power for principle. 
 raising portions for children is subject to the 
 limitation that the portions are not raisable un- 
 der it unless the children live to want them. 1 
 
 The Court will not infer that an appointment 
 is a fraud ujjon a power unless there are such 
 cogent facts that it cannot reasonably come to 
 any other conclusion} 
 
 Sir B. P. Wrey had a power under a settlement Summary of 
 to charge portions for younger children on real es- facts - 
 tate, and to fix the ages and times at which the por- 
 tions should vest. In 1828 he appointed £10,000 in 
 favour of his three infant daughters, aged nine, 
 seven, and one respectively,with an absolute power 
 to himself to revoke and reappoint; four years 
 afterwards he appointed that the portions of his 
 three daughters should vest immediately. Two of 
 the daughters having died infants and spinsters, one 
 in 1836, aged fifteen, and the other in 1845, aged 
 eighteen, Sir B. P. Wrey in 1851 appointed £5000 
 to his surviving daughter on her marriage, and 
 •fa subsequently assigned the other £5000 by way [ ■£- 226] 
 of mortgage to Henty. Held, by the Court of Ap- 
 peal, that Henty was entitled to have the £5000 
 raised. 3 
 
 1 The will generally contains provisions for raising the por- 
 tions for the children, and a term of years is usually carved out 
 of the estate, and limited to trustees to secure the payment of 
 these charges. Hill on Trustees, 365; Hawley v. James, 5 Paige, 
 318; 2 Spence's Eq. 390. 
 
 2 If the appointment is exercised in favor of a stranger in- 
 stead of for the "benefit of the person who was the object of the 
 power, the appointment will be considered fraudulent. Bisp- 
 ham's Eq. (4th Ed. ), Sec. 256. 
 
 3 " Where portions are effectually charged on land, the trus- 
 
344 FRAUD ON A POWER. 
 
 Principle of The old case of Aleyn v. Belchier (1 Eden, 132), decid- 
 Aleyn v. ed in 1758, proceeded upon the principle that " no point 
 
 Belchier. j g De tt er established than that a person having a power 
 
 Power of £ appointment must execute it bona fide for the end 
 mustbe'exer- designed, otherwise it is corrupt and void." Two quas- 
 rised bond tions, one of fact, the other of law, arose in the leading 
 fide. case. First, whether as a question not of law, but of 
 
 fact, the appointment made by Sir B. P. "VVrey was a 
 fraud on the power; and, secondly, whether there was 
 a general rule established by the cases with regard to 
 charges on land created under powers of appointment, 
 under which the Court was bound, even in the absence 
 of proof of fraudulent intent, to set aside the appoint- 
 ment which had been made. This alleged rule had 
 been stated in the Court below to proceed on the prin- 
 ciple that such a power being in the nature of a discre- 
 tionary trust, the appointor must be taken to know that 
 it is contrary to the nature of the trust to make an ap- 
 pointment so as to vest immediately portions in chil- 
 dren of tender years, and such an appointment would 
 therefore be so improper that the Court would control 
 it by refusing to allow the portions to be raised if the 
 children did not live to want them. Before approach- 
 ing the consideration of the peculiar circumstances of 
 the case before them in connection with the exercise of 
 the power, the Court of Appeal pointed out that plainer 
 or more emphatic words as regarded the right of direct- 
 ing the portions to be vested at any time which the ap- 
 pointor should think fit, could not be imagined. It 
 ■was not merely directed that the money should be vest- 
 ed at such age, day, or time, but that it should be an 
 interest vested in and to be paid to the child or 
 children at such age, day, or time as the donee of the 
 power should think fit. It came therefore to this, that 
 on the words there could be no question that the par- 
 ties to this deed intended that the appointor (acting of 
 course bond fide) should be the judge of the period at 
 which the portions should vest. It was left to him to 
 decide that question, and therefore, unless there was 
 some rule of law which said that notwithstanding the 
 plain meaning of the expressions used, effect could not 
 be given to the intention expressed by them, effect must 
 be so given. The rule contended for was opposed to 
 principle, " the principle being that such contracts or 
 settlements are to have effect given to them according 
 
 tees usually take a power of selling or mortgaging for the pur- 
 pose of raising them; although that power is not expressly given 
 by the terms of the instrument." Hill on Trustees, 366. 
 
FRAUD ON A POWER. 345 
 
 to the intention," and Opposed also to the modern rules 
 of construction. 
 
 In dealing with the question of fact the Court of Ap- 
 peal wholly distinguished the facts of the present case 
 from the facts of the celebrated case of Lord Hinchin- 
 broke v. Seymour (1 Bro. C. C. 395), discussed in Lord 
 St. Leonards on Powers, Chance on Powers, pp. 141, 
 463, and Farwell on Powers, p. 326. The facts of that 
 case, as illustrating the principle that the Court will 
 not permit a party to -fa execute a power for his own [ if 227] 
 benefit, were thus shortly summed up by Lord Eldon 
 in McQueen v. Farquhar (.11 Vesey, 467): "In Lord 
 Sandwich's case " (Lord Hinchinbroke became Lord 
 Sandwich), ''a father having a power of appointment 
 and thinking one of his children was in a consumption, 
 appointed in favour of that child. And the Court was 
 of opinion that the purpose was to take the chance of 
 getting the money as administrator of that child." 
 With regard to the present case the Court pointed out 
 that here there was not one child but there were three 
 children in whose favour (he appointment was made. 4 
 " Did the father," said Jessel, M.R., "expect the three 
 children to die in his lifetime ? Why should he ? It has 
 been laid down over and over again that even in a will 
 the legatees are assumed by the testator to survive him. 
 Does a father assume that his children will die ? There 
 is not a scintilla of evidence to shew anything of the 
 kind, that he assumed it or that he had any ground for 
 assuming it. The child, who was one year old, no 
 doubt died afterwards, but not until fifteen years after- 
 wards; and the other child, who was then four years 
 old, died afterwards at eighteen years of age. There- 
 fore the times of death do not afford any inference at 
 all that they were likely to die at this early age, and 
 why should the father have such a horrible, intention 
 imputed to him that he appointed to his three little 
 daughters on the assumption that they wo,uld die in his 
 lifetime and that he would thereby obtain the benefit ? 
 I am shocked at such an inference being drawn with- 
 out any ground whatever." The judgment then went 
 on to shew that the appointment which really took 
 effect was not the appointment of 1828,but the confirm- 
 atory appointment of 1832, and that there was this 
 cogent reason for making the appointment, that other- 
 
 * Wherever the appointment is made with a view by the trus- 
 tees, to his obtaining the fund, it is a fraud on his power of ap- 
 pointment. Bispham's Eq. (4th Ed.), Sec. 256; Hill on Trus- 
 tees, 367. 
 
346 FRAUD ON A POWER. 
 
 wise the Children would be left without provision, and 
 there were these further advantages, that the Court 
 could give maintenance and advancement out of the 
 fund, and any surplus of the income would be availa- 
 ble for future maintenance, when increased mainte 
 nance wab required. These were reasons for making 
 the appointment vest at once; it would be a benefit to 
 the children and never could do them any harm. 
 Fraud not " When you see," said Jessel, M.R., "that there was a 
 to be pre- reason for appointing portions, and making them vest 
 sumed. immediately, with a view to the benefit of the children, 
 
 you are not to impute to the father an intention to com- 
 mit a fraud upon the power." 
 
 With regard to the general question of law involved 
 in the case, Jessel, M.R., elaborately reviewed the au- 
 thorities, and stated that no such principle existed as 
 that laid down in the Court below, prohibiting the rais- 
 ing of a portion in the event of a child dying under 
 twenty- one and unmarried. The whole law on the sub- 
 ject was summed up by Lindley, L. J., in the five fol- 
 lowing propositions : — 
 Summary of 1- That powers to appoint portions charged on land 
 the law. ought, if their language is doubtful, to be construed so as 
 
 not to authorize appointments vesting those portions in 
 the appointees before they want them, that is, before 
 they attain twenty-one or (if daughters) marry. 5 
 [ -^ 228] "ir 2. That where the language of the power is clear 
 
 and unambiguous effect must be given to it. 
 
 3. That where upon the true construction of the 
 power and the appointment, the portion has not vested 
 in the lifetime of the appointee, the portion is not rais- 
 able, but sinks into the inheritance. 
 
 4. That where upon the true construction of both in- 
 struments the portion has vested in the appointee, the 
 portion is raisable even although the appointee dies 
 under twenty-one or (if a daughter) unmarried. 
 
 5. That appointments vesting portions charged on 
 land in children of tender years who die soon after- 
 wards, are looked at with suspicion, and very little ad- 
 ditional evidence of improper motive or object will in- 
 duce the Court to set aside the appointment or treat it 
 as invalid, but that without some additional evidence 
 the Court cannot do so. 
 
 Whether As a general rule an appointment which is partially 
 
 fraud bad will be wholly set aside : 6 Daubeny v. Cockburn (1 
 
 5 Lewin on Trustees, p. 539 (Text Book Series). 
 6 If an appointment is had in part, it is generally invalid 
 in toto. But if a good appointment has been made in favor of 
 
FRAUD ON A POWER. 347 
 
 Mer. 626), but where the portion vitiated by fraud can vitiates 
 be clearly separated the other portion may be sus- whole ap- 
 tained : 7 Topham v. Portland (1 De G. J. & S. 517) ; P°intment. 
 Rowley v. Rowley (Kay, 242). 
 
 In In re Kirivan's Trusts (25 Ch. D. 373) a power of 
 appointment was exercised by codicil under arrange- 
 ments which involved a threat to revoke the will pre- 
 viously made unless they were carried into effect, and 
 it was held-that the appointment preceeded upon a bar- 
 gain which was contrary to the nature of the power, 
 and was therefore invalid. 
 
 In In re Turner's Settled Estates (28 Ch. Div. 205), 
 where the previous authorities will be found collected, an 
 arrangement for resettlement was made with the trustees 
 prior to the exercise of the power, but it was held by 
 the Court of Appeal, " looking at all the circumstances 
 of the case," that it had not been shewn that the bargain 
 was the reason for the appointment, or that if there had 
 been no such bargain there would have been no appoint- 
 ment, and accordingly it was decided that the appoint- 
 ment was valid. 
 
 In In re D'Angibau, Andrews v. Andrews (15 Ch. Classifica- 
 Div. 228), the different classes of powers were classified tion °f 
 by Jessel, M.R., in the following manner :— powers. 
 
 1. A power simply collateral, i.e. a power given to a 
 person who has no interest whatever in the property 
 over which the power is given, s e.g. where executors 
 have a power to sell land. 
 
 2. A power in gross, i.e. a power given to a person 
 who has an interest in the property over which the 
 power extends, but such an interest as cannot be affected 
 by the exercise of the power The most familiar in- 
 stance is that of a tenant for life with a power of ap- 
 pointment after his death. 
 
 3. A power appendant or appurtenant, i.e. a power 
 exercisable by a person who has an interest in the prop- 
 erty, which interest is capable of being affected, dimin- 
 
 any one child it will not be invalid owing to a fraudulent ap- 
 pointment to another, provided the two can be separated. Row- 
 ley v. Rowley, 1 Kay, 242; Bispham's Eq. (4th ed.), sect. 257. 
 
 ' If an appointment is bad in part, it is generally invalid in 
 toto. But if a good appointment has been made in favor of any 
 one child it will not be invalid owing to a fraudulent appoint- 
 ment to another, provided the two can be separated. Rowley v. 
 Rowley, 1 Kay, 242; Bispham's Eq. (4th ed.), sect. 257. 
 
 8 If the donee of a discretionary power acts bond fide and with 
 his own good judgment and with a purpose of carrying out the 
 intention of the donor the fact that he promises to exercise the 
 power in a certain way does not disqualify him. See Williams' 
 App., 23 P. F. Sm. 249. 
 
348 FRAUD ON A POWER. 
 
 ished, or disposed of to some extent by the exercise of 
 the power, e.g. power of a tenant for life to grant 
 leases. The two latter classes of powers are sometimes 
 [ -^f 229] grouped together as ~fc powers not simply collateral. 
 See as to powers generally, Edwards v. Slater and Alex- 
 ander v. Alexander, in Tudor's Real Property Cases. 
 Illusory Ap- The Illusory Appointments Act, 1 Wm. IV. cap. 46, 
 pointments provided that no appointment shall be invalid on the 
 Act - ground that an unsubstantial, illusory, or nominal share 
 
 only is left to any one or more objects of the power. See 
 Gainsford v. Lunn (L. R. 17 Eq. 405) ; In re. Capron's 
 Trusts (10 Ch. D. 484). The law has been further altered 
 by The Powers Law Amendment Act, 37 & 38 "Vict. c. 37 
 (which passed 30th July, 1874, which provides: — 
 
 1. That no appointment which from and after the 
 passing of this A.ct shall be made in exercise of any 
 power to appoint any property real or personal amongst 
 several objects, shall be invalid at law or in equity on 
 the ground that any object of such power Las been alto- 
 gether excluded, but every such appointment shall be 
 valid and effectual notwithstanding that any one or 
 more of the objects shall not thereby, or in default of 
 appointment, take a share or shares of the property 
 subject to such power. 
 
 2. This is followed by a proviso that nothing in the 
 Act contained shall prejudice or affect any provision in 
 any deed, will, or other instrument creating any power 
 which shall declare the amount or share or shares 
 from which no object of the power shall be excluded, 
 or some one or more object or objects of the power shall 
 not be excluded. 
 
 Sect. , 52 of the Conveyancing Act, 1881 (44 & 45 
 Vict. cap. 41), see McGibbon v. Abbot (10 App. Cas. 
 653), which is retrospective, enables a person to whom 
 any power, whether coupled with an interest or not, is 
 given by deed to release, or contract not to exercise the 
 power. See Eyer v. Eyer (49 L. T. 259), where it was 
 held that the power could not be destroyed, as it was 
 coupled with a duty. 
 
 Sect. 6 of the Conveyancing Act, 1882 (45 & 46 
 Vict. c. 39), which is also retrospective, confers similar 
 power of disclaimer on any person to whom a power, 
 whether coupled with an interest or not, is given, and 
 provides (2) that on such disclaimer the power may be 
 exercised by the other or others, or the survivors or sur- 
 vivor of the others, of the persons to whom the power 
 is given, unless the contrary is expressed in the instru- 
 ment creating the power. 
 
(349) 
 
 •fa Removal of Restraint on Anticipation. [-^-230] 
 
 In re "WARREN'S SETTLEMENT. 
 (52 L. J. Ch. 928.) 
 
 The Court has not, under sect. 39, of the Con- Principle. 
 veyancing Act, 1881, a general power of remov- 
 ing the restraint on anticipation^ hut only a 
 power to make hinding a particular disposition 
 of property by a married woman if it he for her 
 heneM. 2 
 
 Property had been settled upon trust to pay the Summary of 
 income to the wife for life without power of antici- acts ' 
 pation, and then to the husband for life if surviving, 
 then to the children of the marriage, and in default 
 of children tor the husband absolutely. The parties 
 had been married for twenty-eight years without 
 having any children, and there was medical evidence 
 that it was almost impossible for the lady to have 
 any issue. The Court of Appeal declined to remove 
 the restraint on anticipation. 3 
 
 The 39th section of the Conveyancing Act, which Conveyancing 
 came into operation on the 1st January, 1882, confers Act, 1881 , 
 a completely new power upon the Court with reference sect ' 39, 
 to property settled upon married women with restraint 
 upon anticipation. It provides — (1) Notwithstanding 
 that a married woman is restrained from anticipation, 
 the Court may, if it thinks fit, where it appears to the 
 Court to be for her benefit, by judgment or order, with 
 her consent, bind her interest in any property. (2) 
 This section applies only to judgments or orders made 
 after the commencement of this Act. 
 
 1 See Bishop on Married Women, 844. 
 
 2 Pa. Co. v. Foster, 35 Pa. St. 135; Elliott v. Wade, 47 Ala. 
 464; Devy v. Darden, 38 Miss. 64; Wright v. Talmage, 15 N. Y. 
 312. 
 
 3 See Wells v. McCall, 64 Pa. St. 207. 
 
350 
 
 REMOVAL OF RESTRAINT ON ANTICIPATION. 
 
 Principle on 
 ■which the 
 Court acts. 
 
 [■•231] 
 
 History of 
 doctrine. 
 
 In the leading case, the Court laid down the general 
 principle upon which it acts with regard to removing 
 the restraint on anticipation under this power. 4 The 
 judge of first instance having reluctantly refused the 
 application, an appeal was brought by the husband, 
 wife and trustees, and an offer was made, in the event 
 of the Court cjeclining to make a general order remov- 
 ing the restraint on anticipation, to give an undertak- 
 ing to purchase an annuity for the wife's life. The 
 Court of Appeal, in delivering judgment, said: 
 
 *fc " All that the Conveyancing Act authorizes the 
 Court to do is, notwithstanding a restraint on anticipa- 
 tion, to bind by an order a disposition of a married 
 woman — that is, if a married woman has made a 
 disposition which the Court thinks for her benefit, 
 the Court makes that particular disposition binding; 
 but the Act did not give the Court power generally 
 to remove the restraint. The Court has, no doubt, 
 in certain cases allowed funds to be parted with on 
 the ground of a woman being past child-bearing, but 
 in those cases security had been given for the pro- 
 perty to be refunded, if necessary. Latterly, the Court 
 has discouraged that sort of arrangement. The Court 
 would be setting a bad example if, in a case like this, it 
 were to sanction any disposition by a married woman 
 which would defeat the interests of any children who 
 might be born." 
 
 The history of the doctrine of restraint on anticipa- 
 tion attached to property belonging to a married woman 
 for her separate use commences a little more than a 
 century ago. In 1785 a post-nuptial settlement was 
 made in pursuance of a decree of the Court of Chancery 
 on the marriage of Miss Vernon, by which real estate 
 had been vested in trustees upon trust during the wife's 
 life, to pay the income as the wife should from time to 
 time appoint, and default for her separate use, and 
 there was a similar trust as to the dividends of a sum 
 of stock, excepting that the words from "time to time" 
 were omitted in the power. 
 
 A few months after the wife joined the husband in 
 incumbering her life interest, the incumbrancers took 
 proceedings to enforce their security, and Lord Thur- 
 low, who had made the decree directing the settlement, 
 felt himself constrained to decide in their favour. The 
 
 4 Restraint upon alienation was first sustained by Lord Thur- 
 low, in Pybus v. Smith, 3 Brown's Ch. 340, and afterwards 
 affirmed in Jackson v. Hobhouse, 2 Merivale, 487 by Lord Eldon, 
 Cord on Eights of Married Women, Sect. 361, note. 
 
REMOVAL OF RESTRAINT ON ANTICIPATION. 351 
 
 story is -well told by Lord Eldon in Jones v. Harris (9 
 Vesey, 493). " So in Pybus v. Smith (1 Ves. Jun. 189), 
 the Court settled the property in order to protect it 
 with all the anxious terms then known to conveyancers. 
 In a day or two afterwards, while the wax was yet warm 
 upon the deed, the creditors of the husband got a claim 
 upon it by an informal instrument, and the same judge 
 who had made such efforts to protect her was, upon 
 authority, obliged to withdraw that protection. In a 
 subsequent case, in which Lord Thurlow became a trus- 
 tee of Miss Watson's settlement, he inserted words 'and 
 not by anticipation ' which he hoped would take the 
 case out of Lord Hardwicke's doctrine." From the 
 time when these words were inserted by Lord Thurlow, 
 this has been the usual formulary, and the effect of it, 
 for the purpose of excluding the power of disposition, 
 has never been questioned. The words, however, though 
 almost universally employed, are not absolutely indis- 
 pensable, for if the intention to restrain anticipation 
 can be clearly collected from the whole instrument, it 
 is sufficient: Lewin on Trusts, 8th ed. p. '781, where the 
 cases as to the words which have and have not been 
 held effectual for the purpose, will be found collected. 
 
 It was settled by the great case of Tullett v. Arm- 
 strong (1 Beavan,. 1; 4 My. & Cr. 377), that the re- 
 straint on anticipation along with the -fa separate use [ -fa 232] 
 stand or fall together, cease during discoverture and re- 
 vive upon the subsequent marriage 5 
 
 In Wright v. Wright (2 J. & H. 647) various sums 
 of Government stock were bequeathed to a woman upon 
 trust for her separate use without power of anticipa- 
 tion. The bequests were made to her simpliciter and 
 without the intervation of any trustee. Afterwards, 
 having attained her majority while still a spinster, she 
 sold the stock, spent part of the proceeds and invested 
 the remainder in shares in a banking company and 
 Canada bonds, i. e. (as was stated in the judgment) in 
 property totally inconsistent with the principles which 
 govern all ordinary investments of trust money. The 
 woman subsequently married, and Lord Hatherley (then 
 Vice Chancellor Wood) decided that as the woman when 
 unmarried and sui juris had, instead of allowing the 
 property to remain in statu quo, converted it from its 
 original form, the separate use was at the end. 
 
 The ground of this decision was that a contrary de- 
 cision would lead to the absurd consequence, that a 
 
 5 Roberts v. Mosely, 51 Mo. 282. 
 
352 REMOVAL OF RESTRAINT ON INFORMATION. 
 
 person about to marry a lady with a handsomely furnish- 
 ed house, would be bound to inquire into the history of 
 every article of furniture, and of the money with which 
 every table and chair was purchased; and if it should 
 turn out that any article of furniture had been pur- 
 chased with money produced, however remotely, by the 
 lady's separate use, the husband must, in the event of 
 his marrying the lady, be considered as adopting the 
 property in that state, and bound not to interfere with it. 
 
 It has been established by a series of authorities, In 
 re Cunynghame 's Settlement (L. E. 11 Eq. 324); In re 
 Michael's Trusts (46 L. J. Ch. 651), that a restraint on 
 anticipation which infringes the rule against perpetui- 
 ties is invalid. These cases with several others, were 
 considered and followed, though with obvious reluctance, 
 by Jessel, M.E., in In re Ridley, Buckton v. Hay (11 
 Oh. D. 645), who expressed an opinion that not one of 
 the judges had considered the real point, namely, 
 whether a restriction on alienation of the class was 
 valid, and intimated that the point was open for a re- 
 versal by the Court of Appeal. 
 
 The property of a married woman has been held liable 
 for ante-nuptial debts notwithstanding the restraint on 
 anticipation: 6 Sanger v. Sanger (L. B. 11 Eq. 470); 
 London and Provincial Bank v. Bogle (7 Ch. D. 773); 
 In re Hedgely, Small v. Hedgely (34 Ch. D. 379). 
 
 It was held in the celebrated case of Pike v. Fitzgib- 
 bon (17 Ch. Div. 454) that the only property which 
 could be bound by a judgment was separate estate to 
 which she was entitled at the time of entering into the 
 contract free from restraint on anticipation; but see 
 now Married Women's Property Act, 1882, sect. 1, sub- 
 sect. 5 (ante, p. 143), and see In re Shakespear, Deakin 
 v. Lakin (30 Ch. D. 169). 
 
 The important question whether where a bequest is 
 made to a married woman for her separate use abso- 
 lutely, followed by a clause restraining her from antici- 
 pation, the restraint is effectual, was settled by the case 
 of In re Brown, O'Halloran v. King (27 Ch. Div. 411), 
 where the previous authorities, In re Ellis' 1 Trusts (L. 
 [ if 233] E. 17 Eq. 409), * In re Croughton's Trusts (8 Ch. D. 
 460); In re Clarke's Trusts (21 Ch. D. 748), as well as 
 a number of the older cases, are considered. The prin- 
 
 6 A donor may make his own terms and the conditions upon 
 which the money is to be paid or applied and exclude it from 
 creditors. Keyser v. Mitchell, 17 P. F. Sm. 473; Eckert v. Mc- 
 Kee, 9 Bush (Ky\ 355; Nichols v. Eaton, 1 Otto, 716; Stuart v. 
 Wilder, 17 B. Monroe (Ky.), 55. 
 
REMOVAL OF RESTRAINT ON INFORMATION. 353 
 
 ciple thus settled is that the restraint is effectual when 
 the testator has shewn an intention that the trustees 
 should keep the investment and only allow the married 
 woman to have the enjoyment of it in the way of in- 
 come, and does not depend on the question of whether 
 there is a gift of " an income bearing fund " or a sum 
 of cash, or on the accident as to how the money is in- 
 vested at the death of the testator, or at any other time. 
 
 In Hodges v. Hodges (20 Ch. D. 749) the Court act- 
 ing on the evidence of the married woman's consent af- 
 forded by an affidavit made by her and a letter written 
 to her solicitors strongly urging them to obtain the 
 money, ordered a fund which belonged to her for her 
 separate use without power of anticipation, to be paid 
 out to her to enable her to pay her debts. In Mus- 
 grave v. Sander/tan (48 L. T. 215) the Court sanctioned 
 a compromise affecting an annuity which belonged to 
 a married woman without power of anticipation, but 
 directed her to attend for her separate examination as 
 to her consent. 
 
 The authority of Hodges v. Hodges (ubi supra) is 
 altogether questioned in Macqueen's Husband and 
 Wife, 3rd ed. p. 324, where it is said to be overruled 
 by the leading case of In re Warren (ubi supra). 
 
 In In re Glanvill, Ellis y. Jackson (31 Ch. Div. 532), 
 the Court of Appeal held that it had no jurisdiction to 
 disregard the restraint on anticipation on the ground 
 that it appeared to the Court to be just to do so, and it 
 accordingly held that only income which had accrued 
 before the act on which the claim against the separate 
 estate was founded, viz the improper institution of an 
 administration action, could be attached to meet costs. 
 It should be observed that this action was brought be- 
 fore the commencement of the Married Women's Prop- 
 erty Act, 1882, by the married woman by her next 
 friend, and the Court guarded themselves against ex- 
 pressing an opinion as to how the question would be 
 decided in the case of a married woman suing without 
 a next friend under the provisions of that Act. 
 
 In In re Jordan, Kino v. Picard (34 W. E. 270), a 
 married woman was entitled to a share of residuary 
 estate under a will which contained a proviso that in 
 .any case any person entitled for life under that will 
 should charge, alien, or assign his interest, or any part 
 thereof, either wholly or partially, or should become 
 bankrupt, or should do or suffer any act, deed, or thing 
 whereby such interest or any part thereof should be- 
 come aliened or alienable, assigned or assignable, unto, 
 
 23 MODERN EQUITY. 
 
354 
 
 EQUITY ACTS IN PERSONAM. 
 
 Married 
 Women's 
 Property 
 Act, 1882. 
 
 [*234] 
 
 or vested in or charged in favour of any other person or 
 persons, then and in every such case the life or other in- 
 terest of every such person should be forfeited and 
 should cease and determine. The Court declined to 
 remove the restraint on anticipation. 
 
 The effect of the restraint on anticipation is ex- 
 pressly preserved by sect. 19 of the Married Women's 
 Property Act, 1882 (see ante, p. 148). 
 
 See further on the subject of restraint on anticipation 
 Macqueen's Husband and Wife, 3rd ed. pp. 312 et seq. 
 At page 316 it is ^f suggested that " as the separate 
 use no longer as a general rule depends upon limita- 
 tion, but arises by statute, its connection with the re- 
 straint upon anticipation is therefore less intimate than 
 it was before the Act. Formerly a spinster entitled to 
 property limited to her separate use without power of 
 anticipation could not upon her marriage, unless she 
 executed a formal settlement, reject the restraint while 
 retaining the separate use. It is now otherwise, and it 
 may be presumed that slight circumstances will be held 
 sufficient to manifest an intention on her part to cast 
 off the fetter." 
 
 It was held in Be LandfielaVs Settled Land (30 W. 
 E. 377) that when an order was made on a petition 
 under the Settled Estates Act, binding the interest of a 
 married woman restrained from anticipation, the peti- 
 tion did not require to be entitled under the Convey- 
 ancing Act, as the order was made under the general 
 power of the Court, and, semble, this would apply to a 
 summons under the Settled Land Act. 
 
 Equity acts in personam. 
 
 EWING v. ORR EWTNG-. 
 (9 App. Cas. 34.) 
 
 Principle. Equity acts in personam, that is to say, the 
 
 Court has a personal jurisdiction to enforce 
 contracts and trusts} 
 
 Summary of 
 facts. 
 
 A testator domiciled in Scotland left personal 
 estate in Scotland over £400,000 and in England 
 
 1 It was against the person that the jurisdiction of the Court of 
 Chancery was originally acquired. See Great Falls Mfg. Co. v. 
 Worster, 23 New Hamp. 462. 
 
EQUITY ACTS IN PERSONAM. 355 
 
 over £25,000, and heritable property in Scotland, 
 and he made his will in Scotch form and appointed 
 6ix persons (two resident in England and four in 
 Scotland) to be his executors and trustees. The 
 trustees obtained confirmation of the will in Scot- 
 land which was sealed by the English Court. 
 
 An infant legatee resident in England brought an 
 action for the administration of the estate, and be- 
 fore it came on for trial the trustees removed all 
 the English personalty into Scotland. The question 
 was whether -fc- this action could be brought. The [ -fa 235] 
 House of Lords held (affirming the decision of the 
 Court of Appeal) that the English Court had juris- 
 diction as to the whole estate. 2 
 
 The House of Lords in this important case applied 
 the doctrine established by Penn v. Lord Baltimore (1 
 Ves. Sen. 444), decided in 1750 by Lord Hardwicke, 
 that a Court of Equity has power by judgment in per- 
 sonam over property situated out of its jurisdiction. 3 
 In the present case the apellants, who were trustees and 
 executors of the testator's will, urged, among other con- 
 tentions, that as the will had been confirmed in Scot- 
 land, they thereby became officers of a Scottish Court, 
 and consequently accountable and amenable only to 
 Scotch Courts, so far as all property locally situate in 
 Scotland was concerned, and that as the testator had been 
 domiciled in Scotland, his personal estate could only be 
 administered in Scotland. These contentions were dis- 
 posed of by Lord Selborne, by pointing out that the 
 only effect of confirmation of a will in Scotland, like 
 probate in England, was to complete the title of the ex- 
 ecutors to moveables within the local jurisdiction, that 
 the law of domicil had not the effect of controlling the 
 forum of administration, and that where executors who 
 were also trustees had taken out probate, their accept- 
 ance of the trust must be considered as extending to 
 
 2 A State Court cannot send its processes into another State 
 neither can it deliver the possession of land in another jurisdic- 
 tion; hut it may make a decree and can enforce the transfer of 
 the title. Bispham's Eq. (4th Ed.), Sect. 47. 
 
 3 Mr. Justice Strong, in Muller v. Dows, 4 Otto, 444, recognizes 
 the doctrine and says that a State Court of Equity having juris- 
 diction of the person may decree a conveyance by him of land in 
 another state and can enforce that decree by process against the 
 defendant. 
 
356 EQUITY ACTS IN PERSONAM. 
 
 the whole property subject to the will. " These argu- 
 ments failing," Lord Selborne then proceeded, " the 
 jurisdiction of the English Court is established upon 
 elementary principles. The Courts of Equity in Eng- 
 land are and always have been courts of conscience 
 operating in personam 1 and not in rem, and in the exer- 
 cise of this personal jurisdiction they have always been 
 accustomed to compel the performance of contracts and 
 trusts as to subjects which are not either locally or 
 ratione domicilii within their jurisdiction. They have 
 done so as to land in Scotland, in Ireland, in the colo- 
 nies, and in foreign countries (Penn v. Lard Baltimore). 
 A jurisdiction against trustees, which is not excluded 
 ratione legis rei sitce as to land, cannot be excluded as 
 to movables because the author of the trust may have 
 had a foreign domicil, and for this purpose it makes no 
 difference whether the trust is constituted inter vivos or 
 by a will or mortis causa deed." It had always been 
 the practice of the English Court of Chancery (as was 
 said by James, L. J., in Stirling- Maxwell v. Cartwright 
 (11 Ch. Div. 523)) "to administer as against executors 
 and trustees personally subject to its jurisdiction, the 
 whole personal estate of testators or intestates who 
 have died domiciled abroad." " The jurisdiction of the 
 Court of Chancery," added Lord Blackburn, "is in per- 
 sonam. It acts upon the person whom it finds within 
 the jurisdiction, and compels him to perform the duty 
 which he owes to the plaintiff." 
 
 The Court acting in personam will enforce equities 
 with regard to land outside its jurisdiction unless it is 
 violating or interfering with any law or rule of the for- 
 [ -fc 236] eign county : 5 Ex parte Pollard (Mont. & if Ch. 239). 
 Thus it has been long established that the Court will 
 enforce specific performance of a contract for sale : 6 
 Archer v. Preston (1 Vera. 77), and see Fry on Specific 
 Performance, 2nd ed. pp. 45 et seq. Judgment for fore- 
 
 4 The maxim that equity acts in personam does not mean that 
 the jurisdiction of the Chancellor extends to rights of action for 
 personal injuries. Bispham's Eq. (4th Ed.), Sect. 47. 
 
 5 The question that equity acts in personam is of great import- 
 ance in suits of foreclosure against railroad companies whose line 
 of railroads extends through more than one state, and a decree 
 of foreclosure and sale of the entire property of a railroad laying 
 in more than one state is valid, if decreed by a court which has 
 jurisdiction of the defendants in personam. See Muller v. Dows, 
 (supra) ; McElrath v. The Pittsburgh and Steubenville R. R. Co., 
 5 P. F. Smith, 18? ; Macgregor v. Id., 9 Iowa, 65. 
 
 6 Schrceppel v. Hopper, 40 Barb. (N. Y.) 25 ; Cathcart v. Rob- 
 inson, 5 Peters, 278 : but in Pa. see Kaufman's App., 4 P. F. Sm. 
 383. 
 
EQUITY ACTS IN PERSONAM. 357 
 
 elosure, Toller v. Cartaret (2 Vera. 495); Paget v. Ede 
 (L. E. 18 Eq. 118), may be given, but not for parti- 
 tion; 7 and see in Seton on Decrees, 4th ed. p. 450, a 
 lengthy enumeration of cases where receivers have been 
 appointed over real and personal property abroad. 
 
 In In re Hawthorne, Graham v. Massey (23 Ch. D. 
 743), the principle authorities upon the subject of the 
 jurisdiction of the Court in respect of land situate in 
 foreign countries are cited and considered. The action 
 was brought to recover a portion of the proceeds of sale 
 of real estate in Saxony, and for an account. The title 
 to the property in question was in dispute, and both 
 parties were resident in this country. 
 
 The Court dismissed the action for want of jurisdic- 
 tion, and remarked that the leading case, In re Orr 
 Ewing, seemed to go further than any other in the 
 plaintiff's favour, but that it was not aware of any case 
 where a contested claim depending upon the title to 
 immovables in a foreign country strictly so called, being 
 no part of the British Dominions or possessions, had 
 been allowed to be litigated in this country simply be- 
 cause the plaintiff and defendant happened to be in this 
 country, and pointed out the danger of error that might 
 arise if English Courts were to entertain jurisdiction 
 with regard to contested claims as to land depending 
 upon questions of foreign law. 8 
 
 It was held in In re Matheson Brothers, Limited, (27 
 Ch. D. 225), (following In re Commercial Bank of India 
 (L. R. 6 Eq. 517), that the Court had jurisdiction to 
 wind up an unregistered joint stock company formed 
 and having its place of business in New Zealand, but 
 having a branch office, agents, assets and liabilities in 
 England, and that the pendency of a foreign liquidation 
 did not affect the jurisdiction. It was decided, how- 
 ever, in In re Lloyd Generate Italiano (29 Ch. D. 219), 
 that the Court has no jurisdiction where the foreign 
 company only carries on its business by means of agents, 
 and has no branch office in England; and see In re 
 Commercial Bank of South Australia (33 Ch. D. 174), 
 where a winding up order was made, the judge expres- 
 sing an opinion that it would be ancillary to the wind- 
 ing-up order in Australia. 
 
 With regard to the law according to which contracts Law accord- 
 ; ing to which 
 
 ' A Court cannot issue a commission for the partition of lands 
 which do not lie within its jurisdiction. Port Royal R. R. Co. 
 v. Hammond, 58 Ga. 523 ; Glen v. Gibson, 9 Barb. 634. 
 
 8 If the land itself is to be dealt with its foreign jurisdiction 
 will be a bar to the relief sought. Smith's Equity, 30. 
 
358 EQUITY ACTS IN PERSONAM. 
 
 contracts are concerning real and personal estate are to be construed," 
 construed. the following rules have been established: — 
 
 Contracts concerning real property, wherever made, 
 are construed according to the lex loci rei sitce, i.e., the 
 law of the country where the property is situated. 
 
 Contracts with regard to movable property are con- 
 strued according to the lex loci contractus, i.e., the law 
 where the contract is made, unless the contract is to be 
 performed somewhere else, when it is governed by the 
 lex loci solutionis, i.e., the law of the place where the 
 contract is to be performed. 
 [ -^ 237] -fa If an agreement contrary to the policy of English 
 Agreement law is entered into in a country by the law of which it 
 contrary to { 3 valid, an English Court will not enforce it. .Rows- 
 English law. gillon y Roussinon ( 14 Ch- D 351 ). 
 
 The case of JEwing v. Orr-Ewing came again before 
 the House of Lords in 1885 (lOApp. Cas. 453). Here, 
 however, the House of Lords had to deal with a wholly 
 different set of facts and circumstances. At the time 
 when the decree for administration was made in Eng- 
 land, no suit concerning the trust in question had been 
 commenced in Scotland, but subsequently the Scotch 
 jurisdiction was invoked by the plaintiffs (or "pur- 
 suers" as they are called in Scotch law), who consti- 
 tuted the majority in number and interest of the bene- 
 ficiaries under the testator's will. Pour of the residu- 
 ary legatees commenced an action in Scotland against 
 the trustees, and the Court of Session made a decla- 
 ration " that the trustees were bound to adminster the 
 estate in Scotland, subject to the Scotch law and under 
 the authority and jurisdiction of the Scottish Courts 
 alone : and that they were not entitled to place the es- 
 tate under the Control of the English Court, or any 
 other foreign tribunal." The House of Lords, under 
 these circumstances, held that it could not be maintained 
 that the Scotch Court was bound to abstain from the ex- 
 ercise of his own " independent and unquestionable jur- 
 isdiction over the trustees and trust property in Scot- 
 land, on the mere ground that there had been a pre- 
 vious decree for administration in England." The 
 trust, as pointed out by the House of Lords was Scot- 
 tish in form ; the testator was a domiciled Scotchman; 
 if any questions should arise under the terms of the 
 trust, Scottish law must be applied to their solution ; 
 the whole trust estate was, de facto, in Scotland ; and 
 neither the trustees nor the pursuers desired it to be 
 removed from that country. 9 The question was accord- 
 
 1 9 A trustee residing in one State may be compelled to make a 
 
NOTICE. 359 
 
 ingly settled by the rule of "forum conveniens " ; in 
 other words, the " citerion of greater convenience." 
 The House of Lords came to the conclusion that bal- 
 ance of convenience was in favour of the administra- 
 tion of the estate in Scotland instead of England, but 
 they struck out as " unsupported either by statute or 
 authority," a declaration which had been inserted in the 
 judgment of the Court of Sessions affirming the exclu- 
 sive jurisdiction of the Scotch Court, and adhered most 
 strictly to all that had been said in the leading case (9 
 App. Cas. 38 et seq.), with regard to the jurisdiction of 
 the English Court. " That decision," said Lord Sel- 
 borne, " turned upon the doctrine of trusts, and upon 
 the authority of a Court of Equity to act in personam 
 against trustees personally present within and subject 
 to its jurisdiction, whatever may be the situs of the sub- 
 ject matter of trust, or the domicil of any deceased per- 
 son by whom (whether by deed inter vivos or by tes- 
 tamentary instrument), that trust might have been 
 created." 
 
 * Notice. [*238] 
 
 PATMAN v. HAELAND. 
 
 (17 Ch. D. 353) 
 
 Where a purchaser or lessee has notice of a Principle. 
 deed relating to and forming part of the chain 
 of title, he has notice of the contents of the 
 
 Patman conveyed to Herve two freehold plots of Summary of 
 land, part of a building estate, subject to certain re- s ' 
 strictive covenants, one of which was to the effect 
 that private dwelling-houses only should be erected. 
 Herv& subsequently conveyed the two plots, subject 
 to the same covenants, to Harland. Harland, who 
 
 conveyance of real estate situated in another State. Vaughn v. 
 Barclay, 6 Wharton, 392. 
 
 1 The purchaser may have either actual or constructive notice. 
 As to actual see Williamson v. Brown, 15 New York, 354, and 
 constructive, Bell v. Twilight, 2 Foster, 500; McCrayu. Clark, \ 
 Norris (Pa.), 461. 
 
360 NOTICE. 
 
 had erected a dwelling-house on one plot, granted a 
 lease of the plot to Miss Bennett for seven years for 
 the purposes of an art college, and the lease con- 
 tained a provision that Miss Bennett should be at 
 liberty to erect a studio " of corrugated iron on a 
 brick foundation " in the garden of the premises, 
 and to use the premises as a school of art, but not 
 otherwise for carrying on any trade, business, or 
 employment. Neither Miss Bennett or her solici- 
 tor had any knowledge of the restrictive covenant 
 until shortly before the commencement of the action, 
 and she had proceeded to erect the studio, which 
 was nearly completed. 2 The Court did not then 
 think fit to grant a mandatory injunction 3 for the 
 removal of the studio, but restrained Miss Bennett 
 from proceeding with its construction. 
 
 In this case, the defendant, though ignorant of the 
 restrictive covenant which affected the property, was 
 held to be bound by it on the principle established, as 
 Jessel, M.R., said, for more than a century, and treated 
 by Lord Eldon as settled law that one who takes a 
 [-^•239] lease has -^-constructive notice of the lessor's title. 
 The lessee is bound to make reasonable inquiry into 
 that title, to require " the usual title, whetever that title 
 may be. If the lessor had a conveyance made to him 
 the day before that would not do, the lessee must ask 
 for the conveyance to him and a fair reasonable deduc- 
 tion of title." * 
 
 Suppose, however, that there has been a representa- 
 tion made by the lessor that there is no restrictive cove- 
 nant. Does this representation do away with the effect 
 of the constructive notice ? The law on that point was 
 stated in the leading case as follows: — 
 
 2 A person who has no notice will not be affected by notice 
 on the part of his immediate vendor. Bispham's Eq. (4th ed.) 
 265. 
 
 3 Such an injunction is not granted except in rare and peculiar 
 cases. See Washington Univ. ?>. Green, 1 Md. Ch. 97, and the 
 Court will, on a final hearing, require the abatement of the nui- 
 sance. Lemborn v. The Covington Co., 2 Md. Ch. 409. 
 
 4 A vendee who has notice of a prior equity may resist its en- 
 forcement under cover of want of notice in his immediate ven- 
 dor. Church v. Id., 1 Casey, 278; Dana v. Newhall, 13 Mass. 
 498; Halstead v. Bank of Kentucky, 4 J. Marsh, 554. 
 
NOTICE. 361 
 
 " Notice of a deed relating to and forming part of 
 the chain of title is notice of the contents of that deed 
 and it is no excuse for not inspecting the deed that the 
 intending purchaser was told that it did not affect the 
 title. If as a fact it does affect the title the purchaser 
 is bound by it." 
 
 It was pointed out, however, that if the purchaser 
 was told of a deed which might or might not affect the 
 title— as in Jones v. Smith* (1 Hare, 43, 1 Phil. 244), 
 where the statement was that there was a marriage set- 
 tlement, but that it did not affect the land in question — 
 and was told at the same time that it did not affect the 
 title, he would not be bound by constructive notice. 
 The rule on this subject was stated in Williams v. 
 Williams (17 Ch. D. 443) as follows; — "If a man has 
 notice that there is a deed or document, and at the same 
 time has notice that that deed or document is either en- 
 tirely worthless or does not affect the property with 
 which he is going to deal, he is put so completely off 
 his guard that a Court of Equity does not treat him as 
 fixed with knowledge of the document or the effect 
 of it." 
 
 It had been contended that the effect of the first pro- Vendor and 
 vision in sect. 2 of the Vendor and Purchaser Act, Purchaser 
 1874, preventing an intended lessee or assignee from ^ e< > 1 874 > 
 calling for the lessor's title, was to alter the rule as to see ' 
 the lessee having constructive notice of his lessor's title. 
 This point was disposed of in the judgment as follows : — 
 " What the Vendor and Purchaser Act does is this, in 
 order that a lessee may obtain a lessor's title it makes 
 an express stipulation to that effect necessary, whereas, 
 formerly, the rule was the other way, that, without ex- 
 press stipulation the lessee had a right to the title. 
 Formerly if the lessee had expressly stipulated not to 
 look into his lessor's title, it would not have affected the 
 constructive notice. This is the meaning of the doc- 
 trine: you may bargain to shut your eyes, but if you 
 do wilfully shut your eyes, whether as a bargain or not, 
 you must be liable to the consequences of shutting your 
 eyes. 6 If, therefore, the lessee had formerly expressly 
 bargained to take a lease without looking into the les- 
 sor's title, the lessee would have been bound by con- 
 structive notice, and now, if the lessee says nothing, it 
 is exactly the same as if formerly he had bargained ex- 
 pressly not to look into the lessor's title." ' 
 
 5 See Reed v. Gannon, 50 N. Y. 345. 
 
 6 Boxheimeri;. Gunn, 24 Mich. 379; Bahcock v. Lisle, 57111.329. 
 
 7 Where it is the duty of a person to demand the production 
 
362 NOTICE. 
 
 Notice according to the time-honoured division is 
 either " actual 8 notice " or " constructive notice," or, as 
 Lord Chelmsford preferred to call it in Espin v. Pem- 
 berton (3 De G. & Jones, 547), "imputed notice," i.e. 
 "evidence of notice, the presumption of which is so 
 [ -^ 240] violent, that the -fa Court will not even allow of its be- 
 ing controverted," Plumb v. Fluitt (2 Anst. 438). 
 
 When a person purchases property where a visible 
 state of things exists, which could not legally exist 
 without the property being subject to some burden, he 
 is taken to have notice of the extent and nature of that 
 burden. But it seems that the rule goes further, and 
 that when a state of circumstances exists which is very 
 unlikely to exist without a burden, he is affected with 
 notice: 9 Allen v. Seckham (11 Ch. Div. 790, 795), where 
 the previous authorities are considered. And see Mar- 
 land v. Cook (L. E. 6 Eq. 282); Davies v. Sear (L. E. 
 7 Eq. 427); Attorney- General v. Biphosphated Guano 
 Co. (11 Ch. Div. 327); Dart's V. & P. vol. i. p. 453. 
 < In Caballero v. Henty (L. E. 9 Ch. 447), an action 
 
 was brought by the vendor for specific performance of 
 a contract to purchase a freehold public-house. The 
 conditions of sale contained a statement that it was in 
 the occupation of a tenant, and that it was to be sold sub- 
 ject to the tenancies then existing. The public-house 
 was in fact in lease for a term of which eight years 
 were unexpired, but the defendants stated that they 
 had inferred that the tenancy was from year to year, 
 and that the object of their purchase was to obtain a 
 public-house for the purpose of extending their own 
 business as brewers. The Court of Appeal held (af- 
 firming the decision of the Court below, and practically 
 overruling James v. Lichfield (L. E. 9 Eq. 51) and 
 Phillips v. Miller (9 C. P. 190)), that specific perform- 
 ance of the contract must be refused. The doctrine of 
 Daniels v. Davison (16 Ves. 249), that a purchaser who 
 has notice that parties are possession is bound to in- 
 quire what their tenancies are, has no application to 
 cases where the matter still rests in contract. 
 
 If there is anything in the nature of the tenancies 
 
 of title deeds he will be held to have notice of all the facts of 
 which the production would have informed him. See -Kellog v. 
 Smith, 26 N. Y. 18. 
 
 8 The court in Flagg v. Mann, 2 Sumn. 556, suggested the di- 
 vision of actual notice into direct, oi positive notice and indi- 
 rect, implied or presumptive notice. 
 
 9 Billington v. Welsh, 5 Binney, 129; Money v. Kicfce'tts, 62 
 Miss. 209 ; Davis o. Hopkins, 15 111. 519 ; Hughes v. U. S. 4 
 "Wallace, 232; Chesterman v. Gardner, 5 Johns. Ch. 32. 
 
NOTICE. 363 
 
 which affects the property sold, the vendor is bound to 
 tell the purchaser, and let him know what it is which 
 is being sold; and the vendor cannot afterward? say to 
 the purchaser, " If you had gone to the tenant and in- 
 quired, you would have found out all about it." Cabal- 
 le.ro v. Henty (ubi supra). 
 
 A very great change in the law with regard to con- Conveyancing 
 structive notice has been introduced by the Conveyanc- Act, 1882, 
 ing Act, 1882. Sect. 3, provides : — ' sect. 3. 
 
 (1) A purchaser shall not be prejudicially affected 
 by notice of any interest, fact, or thing, unless : — 
 
 (i. ) It is within his own knowledge, or would have 
 come to his knowledge, if such inquiries and inspec- 
 tions had been made as ought reasonably to have been 
 made by him; or 
 
 (ii. ) In the same transaction, with respect to which 
 a question of notice to the purchaser arises, it has come 
 to the knowledge of his counsel, as such, or of his 
 solicitor or other agent, as such, or would have come to 
 the knowledge of his solicitor, or other agent, as such, 
 if such inquiries and inspections had been made as 
 ought reasonably to have been made by the solicitor or 
 other agent. This sub-section is a legislative reversal 
 of Hargraves v. Rothwell (IKeen. 160), and see -fa Cave [^-241] 
 v. Cave (15 Ch. D. 639), where notice was not imputed 
 as the solicitor was a party to the fraud. 
 
 (2.) This section shall not exempt a purchaser from 
 any liability under or any obligation to perform 6r ob- 
 serve any covenant, condition, provision or restriction 
 contained in any instrument under which his title is 
 derived, mediately or immediately, and such liability or 
 obligation may be enforced in the same manner and to 
 the same extent as if this section had not been enacted. 
 
 (3.) A purchaser shall not by reason of anything in 
 this section be affected by notice in any case where he 
 would not have been so affected if this section had not 
 been enacted. 
 
 The section (sub-s. 4), with a saving as to pending 
 action, applies to purchases made before or after the 
 commencement of the Act (1st Jan., 1883). 
 
 - This section was considered in In re Cousins (31 Ch. 
 D. 671), where it was stated to be clearly intended for 
 the protection of purchasers to some extent against 
 that refined doctrine of imputed notice which had been 
 found to work very grievous injustice to honest men, 
 the notice being implied in a very refined manner, and 
 brought home to a man who knew nothing about the 
 matter, and who found that, though he had acted per- 
 
36.4 NOTICE. 
 
 fectly honestly, he was postponed by reason of the doc- 
 trine of the Court. In this case, Cousins, in 1875, 
 mortgaged his share in certain trust property to Pep- 
 per, but the deed did not disclose any previous charge, 
 and there was the usual covenant that Cousins had 
 good right to assign free from incumbrance. In 1881, 
 Pepper's executors gave notice of this mortgage and of 
 a further charge to the trustees of the property. Prior 
 to 1875, Cousin's share had been mortgaged and 
 charged, and a solicitor named Banks, who still con- 
 tinued to act for the trustees, bad acted professionally 
 for all parties in this matter. Banks stated that on 
 one occasion he had prepared a notice in regard to one 
 of the prior incumbrances, and put it in the box con- 
 taining the trust papers which was in his custody, but 
 that on a subsequent occasion he considered a notice 
 immaterial. No 'uch notice however could be found, 
 and no direct notice of the charges was given to the 
 trustees prior to that given by Pepper's executor in 
 1881. It was held that the Court could not impute 
 constructive notice of the prior charges to Pepper from 
 the fact that Banks had acted as solicitor throughout 
 and that as Pepper's executors had been the first to 
 give notice, his charge was entitled to priority. 
 
 See note to this section in Clark and Brett's Convey- 
 ancing Acts, 2nd ed. p. 20, where it is pointed out that 
 the line of succession of the authorities having been 
 broken by this section, the Courts will be much slower 
 to impute constructive notice to a purchaser, and that 
 Hervey v. Smith (22 Beav. 299; 1 K. & J. 389), Penny 
 v. Watts (1 Hall & T. 266; 1 Mac. & G. 150); Davies 
 v. Thomas (2 Y. & C. Ex. Cas. 234), and Hamilton v. 
 Boyse (2 S. & L. 315), would almost certainly be de- 
 cided differently according to the new law. 
 
(365) 
 
 -fa Administration. [ -^ 242] 
 
 TROTT v. BUCHANAN. 
 (28 Ch. D. 446.) 
 
 The general personal estate in the primary Principle. 
 fund for payment of debts, and funeral and tes- 
 tamentary expenses, unless the testator has either 
 by express words or necessary implication ex- 
 onerated it. 1 This rule applies where the real 
 estate is charged either by deed or will, but not 
 where specific personal estate is so charged. 
 
 John Trott by deed conveyed certain real and Summary of 
 personal estate to trustees on trust after his decease facts ' 
 to sell and pay his debts and funeral expenses out 
 of the proceeds of sale, and hold the balance on trust 
 for his sons and their children. He subsequently 
 by will, after reciting the deed, left all the residue 
 of his property not comprised in the deed for the 
 benefit of his wife and granddaughter. It was held 
 that the estate must be resorted to for the payment 
 of debts in the following order : — 
 
 1. Personalty comprised in the deed. 
 
 2. General personal estate. 
 
 3. Realty comprised in the deed. 
 
 In this case the Court proceeded upon the, principle 
 laid down nearly one hundred and eighty years before 
 in the case of French v. Chichester (2 Vern. 568; 3 Bro. 
 P. C, 2nd ed. p. 16), the records of which were fortu- 
 nately preserved in Lincoln's Inn Library to supple- 
 
 1 The personal estate in the hands of the executor or adminis- 
 trator is the primary and natural fund which must be resorted 
 to in the first instance, for the payment of debts, of every de- 
 scription. Williams on Executors, * 1205. A testator may, if 
 he pleases, give the personal estate as against his heir or any 
 other real representatives, discharged from the payment of his 
 debts and legacies. Id. * 1212. 
 
366 ADMINISTRATION. 
 
 ment the meagre statement of facts given in the re- 
 port. 
 
 This case came twice before the Court. On the first 
 occasion it was supposed that nothing but real estate 
 remained subject to the trusts of the deed, but it was 
 subsequently discovered that personal estate in the 
 shape or two mortgage debts was comprised in it. It 
 will be observed that the gift for the benefit of the 
 wife and granddaughter was a gift of residue, and it 
 [ -Jf 243] was contended that this, taken along with -^r the recital 
 of the deed in the will, exonerated the personal estate. 
 Pearson, J., disposed of this point as follows: — "The 
 testator does not, as he might have done, give to his 
 wife all his real and personal estate not comprised in 
 the trusts of the deed, but he gives her all the residue 
 of his real and personal estate not comprised in the 
 trusts of the deed. There is not a single previous gift 
 in the will. It is not, therefore, a gift of the residue 
 after deducting previous gifts, but still it is a gift of 
 ' residue,' To my mind this can mean nothing else but 
 the residue after making those deductions which by 
 law ought to be made. The words are so strong as to 
 exclude any inference that the testator intended to in- 
 terfere with the operation of the ordinary rule of law 
 that personal estate is the primary fund for the pay- 
 ment of debts, or that he intended the trust property 
 to be employed in the exoneration of the personal es- 
 tate." 
 
 In his second judgment, where the two classes of 
 property, the real and personal, comprised in the trust 
 deed came to be considered, Pearson, J., said that, 
 though as regards real estate the rule of law was com- 
 pletely established, which said that the personal estate 
 must bear the debts, unless a testator had by express 
 words or by some expression of intention of the strong- 
 est kind said that it was to be otherwise, the same rule 
 did not apply to personal estate specifically appropri- 
 ated for the payment of debts. 2 Here there was a posi- 
 tive recital of the trust deed, a declaration that the 
 trusts of it were for the payment of the testator's debts, 
 and an express gift to the widow of the residue not 
 comprised in the deed. He accordingly decided that 
 the intention of the . testator was that the personal 
 estate comprised in the deed should be the primary 
 fund for the payment of his debts, next ihe general 
 
 2 A sale of land under a charge of legacies not only discharges 
 it from those legacies but also from the debts of the testator. See 
 Holiday v. Summerville, 2 P. & W. 533. 
 
ADMINISTRATION. 367 
 
 personal estate, and lastly the realty comprised in the 
 deed. It must, however, be remembered that the prin- 
 ciple of the law which exonerates realty and onerates 
 personalty as to the payment is controlled to a very large 
 extent by the operation of Locke King's Act and the 
 amending statutes. 
 
 Subject to the provisions of Locke King's Act (17 & 
 18 Vict. c. 113) and the Amending Acts (30 & 31 Vict, 
 c. 69, and 40 & 41 Vict. c. 34), as to which see ante, 
 pp. 214 et seq., the following is the order of the appli- 
 cation of assets for the payment of debts : — 3 
 
 1. The general personal estate unless expressly or by 
 implication exempted. 
 
 2. Lands expressly devised to pay debts. 
 
 3. Estates which descend to the heir. 
 
 4. Real or personal property devised or bequeathed 
 charged with debts. 
 
 5. General pecuniary legacies pro rata, 
 
 6. Specific legacies and real estate devised whether 
 in terms specific or residuary are liable to contribute 
 pro rata. 
 
 7. Eeal and personal property which the testator has 
 power to appoint, and which he has appointed by his 
 will or by voluntary deed. 
 
 ■^■8. Widow's, paraphernalia. See ante, p. 224. [-^-244] 
 
 9. Land in a foreign country which is governed by 
 the lex loci rei sitae, and therefore not liable for any 
 debts which the law of the foreign country would not 
 cast upon it. 
 
 See farther Jarman on Wills, 4th ed. vol. ii. p. 622, 
 and Theobald on Wills, 3rd ed. p. 570; and see Tomkins 
 v. Colthurst (1 Ch. D. 626), Farquharson v. Floyer (3 
 Ch. D. 109), where the previous decisions are collected, 
 and Hensman v. Fryer , (L. B. 3 Ch. 420) is not fol- 
 lowed 
 
 The result of the authorities as to the liability for 
 payment of debts of real estate in the hands of execu- 
 tors has been summed up as follows: — 
 
 3 In Pennsylvania by act of February 24, 1834, Sect. 21, the 
 prescribed order of the payment of debts is 1st, Funeral ex- 
 penses, medicine furnished and medical attendance during last 
 illness, servant's wages for one year; 2d, Rents for one year; 3rd, 
 All other debts except those due the Commonwealth. And where 
 there is not sufficient assets to pay the debts of decedent and 
 legacies in full the order of abatement of the legacies are, first, 
 The residuary estate; second, Eeal estate devised for the payment 
 of debts; third, Keal estate charged with the payment of debt; 
 fourth, Eeal estate devised in the residum; fifth, General lega- 
 cies; seventh, Donationes mortis causd. 
 
368 
 
 ADMINISTRATION. 
 
 "Where there is a direction that the executors shall 
 pay the testator's debts, followed by a gift of all his 
 real estate to them, either beneficially or on trust, all 
 the debts 'will be payable out of all the estate so given 
 to them. 4 The same rule applies whether the executor 
 takes the whole beneficial interest, as in Henvell v. Whit- 
 aker (3 Russell, 343), or only a life interest, as in Finch 
 v. Hattersley (3 Russell, 345 n.), or no beneficial interest 
 at all, as in Hartland v. Murrell (27 Beav. 204). But 
 in all cases in which that has been held, the entirety of 
 the liability has been thrown on the entirety of the es- 
 tate." In re Bailey (12 Ch. D. 268); and see Jarman 
 on Wills, 4th ed. vol. ii. p. 565 ; In re Tanqueray- Wil- 
 laume and Landau (20 Ch. Div. 462); Kitford v. Bla- 
 ney (31 Ch. Div. 56); Ashworth v. Munn (34 Ch. Div. 
 391). 
 Specific The law with regard to the exemption of personal es- 
 
 bequest. t a t e specifically bequeathed was thus stated by the House 
 of Lords in Robertson v. Broadbent (8 App. Cas. 815), 
 " If the bequest is of a particular chattel, such as a 
 horse or a ship, it is manifest that the testator intended 
 the thing itself to pass unconditionally and in statu quo 
 to the legatee, which could not be if it were subject to 
 the payment of general and testamentary expenses, 
 debts, and pecuniary legacies. 5 As against creditors 
 the testator cannot wholly release it from liability for 
 his debts, but as against all persons taking benefits un- 
 der his will he may. The same principle applies to 
 everything which a testator, identifying it by a sufficient 
 description and manifesting an intention that it should 
 be enjoyed or taken in the state or condition indicated 
 by that description, separates in favour of a particular 
 legatee from the general mass of his personal estate. 
 Portions. Where portions had been charged on real estate and 
 
 the general personal estate was insufficient for payment 
 of debts, it was held that the portioners were not bound 
 to contribute to the deficiency, and that the real estate 
 must contribute in proportion to its full value: In re 
 Saunders-Davies, Saunders-Davies v. Saunders- Davies 
 (34 Ch. D. 482), where the authorities are collected. 
 
 4 Land is asset for the payment of debt. See Gregg v. Smith, 
 1 Dallas, 481; Wootering v. Stuart, 2 Yeates, 483. 
 
 5 The two requisitesof this kind of abequest, j.e.,a specific legacy 
 is that it must exist amongst the testator's effects at the time of 
 his death, or he may direct his executor to purchase a certain 
 article and hand it over to the legatee, and it must be distin- 
 guished from the whole or other portions of the testator's estate. 
 Eckfeld's Est., 7 W. N. of C. 19; Wallace ». Id., 3 Foster, 149; 
 Snyder v. Boyer, 10 Watts, .54; Boker's Est., 3 Eawle, 229. 
 
TIME THE ESSENCE OF THE CONTRACT. 309 
 
 A charge of "testamentary expenses" is held to in- Testamen- 
 clude the costs of an administration action: Miles v. tary ex- 
 Harrison (L. R. 9 Ch. 316); Harloe v. Harloe (L. E. Penses. 
 20 Eq. 471). 
 
 The practice with regard to costs where real and per- Costs, 
 sonal estate are administered in one action was settled 
 by In re Middleton, Thompson -fa v. Harris (19 Ch. Div. [ -^ 245] 
 552) and Patching v. Barnett (51 L. J. (Ch.) 74). 
 The rule is that the costs of an administration action, 
 so far as they had been increased by the administration, 
 of the real estate, are to be borne by the real estate. 
 It was also laid down in In re Middleton (ubi supra) 
 that where the estate is insufficient the plaintiff is not 
 necessarily entitled to his costs in priority to the de- 
 fendants. 
 
 Time tlie Essence of t'.e Contract. 
 
 TILLEY r. THOMAS. 
 (L. E. 3 Ch. 61.) 
 
 Time is not of the essence of a contract unless Principle. 
 it is made so either by the express stipulations 
 between the patties, the nature of the property, 
 or the surrounding circumstances} 
 
 Charles Thomas agreed to purchase a lease of a Summary of 
 
 house from J. J. Tilley, " possession to be given " facte - 
 
 on a certain day. Tilley, who had notice that 
 
 Thomas required the house for immediate residence, 
 
 tendered possession on the day named, which 
 
 Thomas refused to accept, on the ground that Tilley 
 
 had failed to shew a good title. . Tilley commenced 
 
 a suit for specific performance, alleging that he had 
 
 1 Generally in a court of law the time in which a contract is 
 to be performed is as much the essence of it as any other part. 
 Hill v. School District, 17 Me. 316; Warren v. Bean, 6 Wis. 120; 
 Cromwell «. Wilkinson, 18 Ind. 365; Barrett v. Hard, 23 La. An. 
 712. But equity regards time somewhat differently, and if the 
 time was not the essence of the contract and the party acted in 
 good faith, equity will grant relief. Hild v. Linne. 45 Texas, 
 476 ; Brashier v. Grate, 6 Wheaton, 528 ; Hill v. Fisher, 34 Me. 
 143 ; Thurston v. Arnold, 43 Iowa, 43 ; Pedrick v. Post, 85 Ind. 
 255. 
 
 24 MODERN EQUITY. 
 
370 TIME THE ESSENCE OF THE CONTRACT. 
 
 since deduced a good title. The Court of Appeal 
 dismissed the suit with costs. 2 
 
 In the leading case the Court of Appeal confirmed 
 and applied the rule previously laid down by Lord Jus- 
 tice Turner in Roberts v. Berry (3 D. M. & G. 284). 
 Lord Cairns expressed that rule as follows : " A Court 
 of Equity will indeed relieve against and enforce 
 specific performance notwithstanding a failure to keep 
 the dates assigned by the contract, either for the com- 
 pletion or steps toward completion, if it can do justice 
 between the parties, and if, as Lord Justice Turner said 
 in Roberts v. Berry, there is nothing in the express 
 stipulation between the parties, the nature of the prop- 
 [ -X- 246] erty or the surrounding -^ circumstances, which would 
 make it inequitable to interfere with and modify the 
 legal right. 3 This is what is meant, and all that is 
 meant, when it is said that in equity time is not of the 
 essence of the contract. 4 Of the three grounds men- 
 tioned by Lord Justice Turner, express stipulations re- 
 quire no comment. The nature of the property is illus- 
 trated by the case of reversions, mines, or trades. The 
 surrounding circumstances must depend on the facts of 
 each particular case." 5 
 
 The principle on which the Court proceeds is that 
 time is of the essence of the contract whenever it ap- 
 pears to have been part of the real intention of the 
 parties that it should be so, and not to have been in- 
 serted as a merely formal part of the contract. The 
 intention may be either express or implied, and the 
 point that time is of the essence of the contract should 
 be made by the party insisting upon it, without delay. 6 
 
 2 The question as to whether time is the essence of a contract 
 arises generally in cases of bill for specific performance. Bishop 
 on Contracts, 1148. If time is the essence of a contract equity 
 ■will not grant relief to one who unreasonably delays. Ditto v. 
 Harding, 73 111. 117. 
 
 3 The time may be waived by the parties to a contract. Jor- 
 dan v. Rhoades, 24 Ga. 478 ; Eyster v. Parrott, 83 111. 517 ; Fox 
 v. Harding, 7 Cushing, 516. 
 
 4 The parties may make time an essence of the contract either 
 where the subject renders it such, Griffin v. City Bank, 58 Ga. 
 584, or have made it such by the form of their contracting. 
 Thurston v. Arnold {supra); Taylor v. Tongworth, 14 Peters, 172; 
 Hicks r. Aylsworth, 13 R. I. 562. 
 
 When there is no agreement as to the time when a contract 
 is to be performed, it must be executed within a reasonable time. 
 Myers v. De Mier, 52 N. Y. 647 ; Cocker v. Franklin, 3 Sumner, 
 530; Sawyer v. Hammett, 15 Me. 40. 
 
 6 If the delay operates as an injury, time will be tonsidered 
 
TIME THE ESSENCE OF THE CONTRACT. 371 
 
 Fry on Specific Performance, 2nd ed. p. 464; Hipwell 
 v. Knight (1 Y. & C. Ex. 401). 
 
 Sect. 25 of the Judicature Act, 1873, provides that 
 stipulations in contracts as to the time or otherwise 
 which would not before the commencement of this Act 
 have been deemed to be or to have become of the es- 
 sence of such contract in a Court of Equity shall re- 
 ceive in all courts the same construction and. effect as 
 they would have heretofore received in equity. 7 
 
 The following are some of the principal cases in 
 which, from the nature of the property or other cir- 
 cumstances, time has been considered of the essence of 
 the contract: — Where the property was of a wasting 
 character, as e.g. a leasehold for a short unexpired term, 
 Hudson v. Temple (29 Beav. 536, 543); where the pur- 
 chaser required the property for an immediate purpose, 
 as in the leading case of Tilley v. Thomas (L. R. 3 Oh. 
 61) : and see Webb v. Hughes (L. E. 10 Eq. 281), where 
 the vendors were beneficially interested, and were a 
 fluctuating body (ex. gr. a dean and chapter); where 
 delay might give the purchase-money to persons other 
 than those who signed the contract, Carter v. Dean of 
 Ely (7 Sim. 211); where a patent was sold in order 
 that the purchase-money might be applied in obtaining 
 foreign patents, Payne v. Bonner (15 L. *J. Ch. 227); 
 where property was of fluctuating value, Weston v. 
 Savage (10 Ch. D. 736); Withy v. Cottle (T. & R. 78), 
 Pollard v. Clayton (1 K. & J. 462), ex. gr. foreign stock 
 of varying value, Doloret v. Rothschild (1 S. & S. 590) ; 
 a mining lease, Macbryde v. Weekes (22 Beav. 533); a 
 reversion, on the ground that it might become an estate 
 in possession during the delay, and that its sale is in 
 general evidence of pressing want of money, Newman 
 v. Rogers (4 Bro. C. C. 391), Spurrier v. Hancock (4 
 Ves. 667), Hipwell v. Knight (1 Y. & C. Ex. 401); and 
 see Patrick v. Milner (2 C. P. D. 3-12), where, under 
 the circumstances, it was held that time was not of the 
 essence of the contract; a life annuity, a life estate, 
 which may determine by the death of the cestui que vie, 
 Withy v. Cottle (T. & R. 78); land purchased in order 
 to erect a mill, Wright v. Howard (1 S. & S. 190); prop- 
 erty purchased for mercantile purposes, -^ Walker v. [ -fa 247] 
 
 material. Bellas v. Hays, 5 S. & E. 427 ; Myers v. De Mier 
 (supra). 
 
 7 This act requires the courts of law to follow the equity rules 
 on the subject. 36 & 37 Vict. c. 66, sect. 25. There is also some 
 American legislation to, the same effect. Bishop on Contracts, 
 Sect. 1348. 
 
372 
 
 TIME THE ESSENCE OF THE CONTRACT. 
 
 Tendency 
 of modern 
 decisions. 
 
 Notice. 
 
 Jeffreys (1 Ha. 341), Coslake v. Till (1 Euss. 376); 
 contract for the supply of coal, Pollard v. Clayton (1 
 K & J. 462). 
 
 When a public-house is sold as a going concern, time 
 is of the essence of the contract, Day v. Luhke (L. B. 5 
 Eq. 336); Cowles v. Gale (L. E. 7 Ch. 12). In Weston 
 v. Savage (10 Ch. D. 736) it was held that, the agree- 
 ment being for the sale of a public-house as a going 
 concern, and time being consequently of the essence of 
 the contract, the plaintiff was not bound to wait until 
 the time fixed for the completion of the contract had 
 arrived, but could rescind the contract at once when he 
 found that the lessor had an option to determine the 
 lease, and that he was entitled to a return of his deposit 
 with interest. 8 
 
 In Renter v. Sala (4 C. P. Div. 239) the Court of 
 Appeal regarded time as the essence of a contract for 
 the purchase of paper for a certain flay. "It was 
 argued," said the Court, "that the rules of Courts of 
 Equity are now to be regarded in all Courts, and that 
 equity enforced contracts though the time fixed therein 
 for completion had passed. This was in cases of con- 
 tracts such as purchases and sales of land, where, un- 
 less a contrary intention could be collected from the 
 contract, tire Court presumed that time was not an 
 essential condition. To apply this to mercantile con- 
 tracts would be dangerous and unreasonable." 
 
 The tendency of modern decisions has been to hold 
 persons concerned in contracts relating to land bound, 
 as in other contracts, to regard time as material, and 
 this principle has been applied with the greater strict- 
 ness where the property was connected with trade. 
 Dart's V. & P. 5th ed. vol. i. p. 420. 
 
 Though time is not originally of the essence of. the 
 contract, it may be made so by notice. 9 The law on 
 this subject is thus stated by Lord St. Leonards in his 
 Vendors and Purchasers, 13th edition, p. 227 : "When 
 time is not made of the essence of a contract by the 
 contract itself, although a day for performing it is 
 named, of course neither party can strictly make it so 
 after the contract; but, if either party is guilty of delay, 
 a distinct written notice by the other, that he shall con- 
 sider the contract at an end if it be not completed 
 within a reasonable time to be named, would be treated 
 in equity as binding on the party to whom it is given." 
 
 In order to make time of the essence of a contract 
 
 8 Lucas v. Godwin, 3 Bing. (N. Ca.) 744. 
 
 9 Voorhees v. De Meyer, 2 Barb. 37; Steele?!. Branch, 40Cal. 4. 
 
PRESUMPTION OF ADVANCEMENT. 373 
 
 after the contract has been entered into the time fixed 
 by the notice must be a reasonable one, and the ques- 
 tion of reasonableness must be determined at the date 
 when the notice is given: Crawford v. Toogood (13 
 Ch. D. 153). Where under the circumstances, as the 
 abstract was not a very simple one, and as there would 
 probably be questions arising on the title, a notice of 
 five weeks given in the long vacation was not regarded 
 as reasonable. Where time is not originally of the 
 essence of a contract for the sale of land, it cannot be 
 made so by notice unless there has been some default 
 or unreasonable delay by the other party : 10 Green v. 
 Sevin{lZ Ch. D. 589). 
 
 -ft Presumption of Advancement. [ -^ 248] 
 
 FOWKES r. PASCOB. 
 (L. E. 10 Ch. 343.) 
 
 Where in the case of a purchase in the name p r i nc j p i e . 
 of another there is a presumption of resulting 
 trust, ' and evidence against such presiimption, 
 the Court is in the position of a jury, and will 
 take into consideration all the circumstances of 
 the case? 
 
 Sarah Baker was a widow lady who had large Summary of 
 
 sums of stock standing in her own name and other at ft ' 
 
 considerable property. Her only child, a son, had 
 
 died, leaving a childless widow, who married again 
 
 and had a son, John Irving Pascoe, and a daughter. 
 
 In March 1843 Sarah Baker invested £500, viz. 
 
 £250 in the names of herself and her companion, 
 
 10 The justice of individual cases may require that the Court 
 shall treat time as an essence of the contract and hold the par- 
 ties to the consequences. Shaw v. Turnpike, 2 Pa. 454; Potter 
 v. Tuttle, 22 Conn. 512; Kemp»>. Humphreys's, 13 111. 573; Kirby 
 v. Harrison, 2 Ohio, 326. 
 
 1 Page v. Id., 8 N. H. 187; R. E. Co. v. Laropson, 47 Barb. 533; 
 Willard v. Id., 6 P. F. Sm. 119; Depeyster v. Gould, 2 Green's 
 Ch. 480; Butler v. Eutledge, 2 Coldwell (Tenn.), 4; Perry v. 
 Head, 1 A. K. Marsh, 47. 
 
 2 Resulting trusts are excepted from the statute of frauds, 29 
 Car. 2, c. 3 Sect. 8. See Hoxie v. Carr, 4 Eng. (Ark.) 525. 
 
374 PRESUMPTION OF ADVANCEMENT. 
 
 and £250 in the names of herself and John Irvine 
 Pascoe. Subsequently in the same year she made 
 her will and gave the residue of her estate to her 
 daughter-in-law, Elizabeth Ann Pascoe, for life, and 
 after her death among her children. She made fur- 
 ther subsequent purchases in the names of herself 
 and John Irving Pascoe, and also transferred stock 
 into the names of herself and John Irving Pascoe, 
 so that at the time of her death there was standing 
 in the joint names of herself and John Irving Pas- 
 coe the sum of £7000. John Irving Pascoe deposed 
 that the £7000 was intended as a gift to him, and 
 his evidence was supported by that of his wife and 
 two servants. Mrs. Baker never provided for the 
 children of her daughter-in-law, but John Irving 
 Pascoe had lived with her for some years before his 
 marriage, and she had made him a handsome pre- 
 [ if 249] sent on that event. Held, by ^ the Court of Ap- 
 perl, that John Irving Pascoe was entitled to the 
 £7000 stock, and that there was no ademption of 
 the residuary bequest. 3 
 
 The principle question to be determined in this case, 
 the facts of -which, as the Court of Appeal said, were 
 singular in this respect, that nothing like them appears 
 to have occurred in any of the reported cases, was 
 whether under all the circumstances a resulting trust 
 was to be presumed, and £he Court of Appeal, on this 
 point differing wholly from the conclusion at which 
 Jessel, M.R., had arrived, decided that the evidence in 
 favour of a gift having been made rather than of a 
 trust . having been created, was absolutely conclusive. 
 Before, however, we consider by what reasoning and on 
 what principles the Court of Appeal felt itself bound 
 to decide the question before it in this particular man- 
 ner it is necessary first to understand the general rules 
 
 3 Where money is furnished to a legatee it may be a gift or an 
 advancement or a loan; if it is a gift it is outright and doest not 
 effect the legacy. See King's Est., 6 Wharton S)7; Miller's Est., 
 4 Wright, 57. The declaration of the donor after the transaction 
 and to a third party is evidence to show whether the donor in- 
 tended a gift or an advancement. Lawson's App., 11 Harris, 85; 
 Story's App., 2 Norris, 89. 
 
PRESUMPTION OF ADVANCEMENT. 375 
 
 of law applicable to the subject illustrated by the lead- 
 ing case. 
 
 The 8th sect, of the Statute of Frauds (see p. 12) 
 provides that trusts arising by implication or construc- 
 tion of law do not require to be created by writing. 4 
 Hence it has been long established, as stated in the 
 judgment to the well-known case of Dyer v. Dyer (de- 
 cided in the year 1788) (2 Cox, 92), that the trust of 
 a legal estate, whether freehold, copyhold or leasehold, 
 whether taken in the names of the purchaser and others 
 jointly or in the names of others without that of the 
 purchaser, whether in one name or several, whether 
 jointly or successive, results to the man who advances 
 the purchase money, 5 and it goes on a strict analogy to 
 the rule of common law that where a feoffment is made 
 without consideration, the use results to the feoffer. 6 
 This principle has been extended to purchases of per- 
 sonalty ; if a man takes a bond or purchases an annuity, 
 stock, or other chattel interest in the name of a stranger, 
 the equitable ownerships results to the person from whom 
 the consideration moved 7 (Lewin on Trusts, 8th ed. p. 
 164). This principle, however, does not apply, and the 
 Court will not assist the purchaser, if the purchase be 
 made with a view to defeat the policy of the law, ex. gr., 
 where property was purchased by A. in the name of B., 
 in order to give B. a vote for a parliamentary election. 
 Groves v. droves (3 Y. & J. 163) ; May v. May (33 
 Beav. 81). 
 
 In certain cases, however, where the purchase has 
 been made in the name of another there is a presump- 
 tion that the purchase is by way of . advancement or 
 provision. The general law upon this subject has 
 been well summed up by Jessel, M.E. (who was not 
 ashamed to confess that the authorities very much em- 
 barrassed him), in Bennet v. Bennet (10 Ch. Div. 474): 
 "The doctrine of equity as regards presumption of 
 gifts is this, that where one person stands in such a re- 
 lation to another that there is an obligation on that 
 
 * Arid may be of either realty or personalty, but not of perish- 
 able property. Union Bank v. Baker, 8 Hump. 447; Perry on 
 Trusts, sect. 130. 
 
 6 Paul v. Chonteau, 14 Missouri, 580; Robinson ti. Id., 22 Iowa, 
 427; Williams i\ Brown, 14 111. 200; Creed v. Lancaster Bank, 
 1 Ohio St. l:'Bear v. Koenigstein, 16 Neb. 65: Poage's Adm., 2 
 Texas, 150; Bickel's App., 5 Norris, 204. 
 
 6 Edwards v. Id., 39 Pa. St. 369; Bostlemen v. Id., 24 N. J. 
 Eq., 103. 
 
 'Kelly v. Jeaness, 50 Me. 445; Creed v. Lancaster Bank 
 (supra). 
 
376 PRESUMPTION OP ADVANCEMENT. 
 
 I 
 
 person to make a provision for the other, and we find 
 [ -^ 250] either a -^ purchase or investment in the name ' of the 
 • other or in the joint names of the person and the other 
 of an amount which would constitute a provision for 
 the other, the presumption arises of an intention on 
 the part of the person to discharge the obligation to 
 the other, and therefore, in the absence of evidence to 
 the contrary, that purchase or investment is held to be 
 in itself evidence of a gift, in other words, the pre- 
 sumption of gift arises from the moral obligation to 
 give." In this case a widowed mother borrowed a sum 
 of £3000 for her son's benefit, and subsequently claimed 
 to be a creditor in the administration his estate. It 
 was held upon the evidence that the £3000 was to be 
 considered not as a gift but as a loan, and that the 
 mother was entitled to recover. "* 
 
 The doctrine of advancement, as was stated in this 
 case, arises from the presumption of an intention on 
 the part of the person to discharge his duty to another, 
 and applies not only to the case of a parent, but also to 
 any person who has put himself in loco parentis, i.e. 
 has taken upon himself the duty of making provision 
 for him : Ex parte Pye (18 Ves. 140) approved of in 
 Powys-y. Mansfield (3 My. & Cr. 359, 367). It is to 
 be observed that in Bennet v. Bennet (ubi supra) the 
 Court held (dissenting from the«tatement of the law in 
 Sayre v. Hughes (L. R. 5 Eq. 381) ), that no presump- 
 tion of advancement arose in the case of a mother as in 
 that of a father. 8 " In the case of a father you have 
 only to prove the fact that he is the father, and when 
 yovi have done that the obligation arises a but in the case 
 of a person in loco parentis you must prove that he 
 took upon himself the obligation. But in our law there is 
 no moral legal obligation — I do not know how to express 
 it more shortly — no obligation according to the rules 
 of equity on a mother to provide for her child : there 
 is no such obligation as a Court of Equity recognizes 
 as such." "In the case of a mother," he went on to 
 say, — "this is the case of a widowed mother — it is 
 easier to prove a gift than in the case of a stranger. 
 In the case of a mother, very little evidence beyond the 
 relationship is wanted, there being very little additional 
 motive required to induce a mother to make a gift to 
 her child." It must, however, be remembered that 
 sect. 21 of the Married Women's Property Act, 1882, 
 provides that " a married woman having separate prop- 
 
 8 Williams on Ex'rs, * 1069. 
 
 9 Supra, * 1069. 
 
PRESUMPTION OF ADVANCEMENT. 377 
 
 erty shall be subject to all such liability for the main- 
 tenance of. her children and grandchildren as the hus- 
 band is now by law subject to for the maintenance of 
 her children and grandchildren." It may perhaps be 
 considered as doubtful, having regard to this enactment, 
 whether a married woman having separate property is 
 not as much as the father under a " moral legal obliga- 
 tion " to provide for her children. 
 
 The rule of the Court with regard to the question 
 whether a resulting trust has arisen, was laid down by 
 the Court of Appeal in the leading case (L. R. 10 Ch. 
 352) as follows : — 
 
 •' When there is once evidence to rebut the presump- 
 tion the Court is put in the same position as a jury 
 would be, and then we cannot give such influence to 
 tbe presumption in point of law as to -fa disregard the [ <fc 251] 
 circumstances of the investment and to say that neither 
 the circumstances nor the evidence are sufficient to re- 
 but the presumption." 
 
 "The presumption," the Court went on to say, " must 
 beyond all question be of very different weight in differ- 
 ent cases. In some cases it would be very strong in- 
 deed. If for instance a man invested a sum of stock in 
 the name of himself and his solicitor the inference 
 would be very strong indeed that it was intended solely 
 for the purpose of trust, and the Court would require 
 very strong evidence on the part of the solicitor to 
 prove that it was intended as a gift, and certainly his 
 own evidence would not be sufficient. On the other 
 hand, a man may make an investment of stock in the 
 name of himself and some person, although not a child 
 or wife, yet in such a position to him as to make it ex- 
 tremely probable that the investment was intended as 
 a gift. 
 
 "In such a case, although the rule of law, if there 
 was no evidence at all, would compel the Court to say 
 that the presumption of trust must prevail even if the 
 Court might not believe that the fact was in accordance 
 with the presumption; yet if there is evidence to rebut 
 the presumption, then, in my opinion, the Court must 
 go into the actual facts." 
 
 The presumption of advancement has been held to 
 arise where the purchase was made in the name of an 
 illegitimate grandchild, the father being dead, Ebrand 
 v. Dancer (2 Ch. Ca. 26), Beckford v. Beckford (Lofft. 
 490), the nephew of a wife who had been adopted, Cur- 
 rant v. Jago (1 Coll. 261), but not in the case of an 
 illegitimate grandson whose father was alive, Tucker v. 
 
378 PRESUMPTION OF ADVANCEMENT. 
 
 Burrow (2 H. & M. 515), nor in favour of a deceased 
 wife's sister who was living with the purchaser as his 
 reputed wife but not legally married, Soar v. Foster (4 
 K. & J. 152). The question of advancement being a 
 question of the purchaser's intention, evidence antece- 
 dent to or contemporaneous with or immediately after 
 the purchases, so as to form part of the same transac- 
 tion, may be admitted to rebut it; subsequent declara- 
 tions, except so far as they prove intention at the time, 
 are inadmissible. " And it seems the subsequent acts 
 and declarations of the father may be used against him 
 by the son, 10 though they cannot be used in his favour, 
 and so the subsequent acts or declarations of the son 
 may be used against him by the father, provided he 
 was a party to the purchase, and his construction of the 
 transaction may be taken as an index to the intention 
 of the father, but not otherwise; for the question is not 
 what did the son, but what did the father mean by the 
 purchase. (Lewin on Trusts, 8th ed. p. 176.) "With 
 regard to the presumption of advancement, it was laid 
 down in Dyer v. Dyer that reasons which partake of too 
 great a degree of refinement should not prevail against 
 a rule of property which is so well established as to be- 
 come a landmark, and which, whether right or wrong, 
 should be carried throughout this principle of law of 
 presumption, that a purchase is an advancement prima 
 facie, is not to be frittered away by mere refinements: 
 [*252] Finch v. * Finch (15 Ves. 43, 50)." A strong illus- 
 tration of this principle is afforded by the rule that if 
 the father purchases in the name of an adult son, and 
 receives the rents and acts as owner, the presumption 
 of advancement is not rebutted: Grey v. Grey (2 Sw. 
 596); Lewin on Trusts, 8th ed. pp. 173-174. n 
 
 In the case of Garrett v. Wilkinson (2 De G. & Sm. 
 244) money was lent out in the name of a son who was 
 acting as solicitor for his father, and it was held that 
 the burden of proof was shifted, and that there was no 
 presumption of advancement. 
 
 In In re Eykyn's Trusts (6 Ch. D. 115), where the 
 question of the introduction of the name of a stranger 
 in case of an investment in the joint names of husband 
 
 10 The declarations must be direct and certain. See Cairns v. 
 Colburn, 10 1 Mass. 247; Cartwright v. Wise. 14 111. 417. 
 
 11 Where the partners to the transaction are alive and give evi- 
 dence, there is no occasion to resort to any presumption. Lewin 
 on Trusts, p. 277 (Text Book Series). 
 
 12 The advancement to the son is a question of intention. But- 
 ler v. Ins. Co., 14 Ala. 777 ; Johnson v. Matsdorf, 11 John. 91 ; 
 Slack v. Id., 26 Miss. 290. 
 
SATISFACTION. 379 
 
 and wife came for the first time before the Court, it 
 was held (following Fowkes v. Pascoe) that investments 
 in the joint names of the husband, wife, and strangers 
 were on the husband's death to be treated as advance- 
 ments for the benefit of the wife. 13 
 
 In the recent case of Standing v. Boivring (31 Ch. 
 Div. 282) a widow lady 86 years of age transferred a 
 sum of £6000 consols into the joint names of herself 
 and her godson. The Court considered that it was es- 
 tablished by evidence that she was aware when she did 
 this that she would be able during her lifetime to re- 
 ceive the dividends, and that if her godson survived her, 
 which seemed probable, he would become entitled as 
 survivor to the consols so transferred, and decided ac- 
 cordingly that she could not claim a retransfer on equita- 
 ble grounds. 
 
 It was held by the Court of Appeal in Ex parte 
 Cooper (W. N. 1882, p. 96), that the equitable doctrine 
 of advancement has no application to money paid by a 
 father to a son where nothing beyond the fact of pay- 
 ment is proved. The onus of proof lies on the person 
 who claims repayment, and when the parties to such a 
 transaction are alive and give evidence, there is no oc- 
 casion to resort to any presumption, as the question is 
 one of fact." 
 
 •jt Satisfaction. [ Jr 253] 
 
 TUSSATJD v. TTJSSAUD. 
 
 (9 Ch. D. 363.) 
 
 The doctrine of satisfaction is founded on Principle. 
 the presumption against double portions, but 
 this presumption may be rebutted whether in a 
 deed or a will by parol evidence of intention} 
 
 In_ February, 1867, Francis Tussaud, on the mar- 
 
 13 McGovern v. Knox, 21 Ohio St. 552. 
 
 14 Lewin on Trusts, p. 279 (Text Book Series). 
 
 1 The doctrine of satisfaction has been regarded with much 
 disfavor and the presumption on which it is founded is liable to 
 be rebutted by slight circumstances. SeeWesco's App., 2 P. F. 
 Sm. 195; Strong!). "Williams, 12 Mass. 391; American notes to 
 Cbancey's Case, 2 Lead. Cas. Eq. (4th American Ed.) 782; Van 
 Eiper v. Id. and 1 Green, Ch. 1 , where the doctrine is admitted 
 and some of its qualifications illustrated. 
 
380 SATISFACTION. 
 
 Summary of riage of his daughter, Mrs. White, covenanted with 
 facts. (^g trustees of her settlement that his executors or 
 
 administrators should within six calendar months 
 after his death if he survived his wife, but if not, 
 then within six calendar months after her death, 
 transfer to the trustees the sum of £2000 consols to 
 be held on the trusts of the settlement, which we're 
 (1) for such persons as Mrs. White with the consent 
 of the trustees should by any writing or by will ap- 
 point, and in default of appointment (2) for Mrs. 
 White for life for her separate use, then (3) for hus- 
 band for life and after death of survivor (4) for 
 children, sons at twenty-one, daughters at twenty- 
 one or marriage, and in default of children (5) for 
 Mr. White absolutely. 
 
 In 1871 Francis Tussaud paid the trustees £1000, 
 which was accepted by them as satisfying his cove- 
 nant to the extent of a moiety. In 1873 Francis 
 Tussaud died, having by his will and codicil be- 
 queathed £2800 to the trustees of his will in trust 
 for (1) Mrs. White for life for her separate use with- 
 out power of anticipation, and after her decease (2) 
 for such of her children as should attain twenty-one 
 in equal shares, and if there were no children who 
 [ *fc 254] attained a vested interest, the fund -^ was to fall 
 into the residue and go to the testator's own sons. 
 The Court of Appeal decided, reversing the decision 
 of Jessel, M.R., that the provision for Mrs. White 
 under the will and codicil was not to be considered 
 as a satisfaction for Francis Tussaud's liability un- 
 der the covenant in the settlement. 2 
 
 The first point decided by the Court of Appeal was 
 that certain evidence of declarations made by the tes- 
 tator rebutting the presumption that he intended to 
 satisfy the covenant in the settlement by the bequest in 
 favour of Mrs. White was admissible. It was, they 
 said, established upon the authority of decided cases, 
 
 2 The cases in which the doctrine of satisfaction has been ap- 
 plied have nearly all arisen under wills. Bisphaiu's En. (4th 
 Ed.), Sec. 538; Snell's Eq., 194. 
 
SATISFACTION. 381 
 
 and according to the opinion expressed in all the 
 books, as well as the uniform course of practice, that 
 parol evidence was admissible to rebut a presumption Parol evi- 
 although not to raise a presumption. The Court con- dence ad- 
 sidered that there was no distinction for this purpose miss it> le - 
 between the case of a deed and a will, and approved of 
 what is laid down in Taylor on Evidence, 8th ed. vol. i. 
 p. 1042, that where there are two instruments and 
 where the circumstances are such that the Court of 
 Equity raises a presumption that one is in satisfaction 
 of the other, there the Court will receive evidence of 
 declaration of the parties to rebut such presumption: 
 but where there is prim&^facie no presumption in 
 equity, there the Court will not allow evidence to be 
 given to raise a presumption and to shew the intention 
 of the parties. 
 
 " The law which I have to apply," said Jessel, M.E., 
 in his judgment, " is by no means easy to apply, though 
 I take it the long series of authorities have pretty well 
 settled what the law is." In the present case there 
 was no difference between the Court of first instance 
 and the Court of Appeal on any question of law, the 
 point and the only point on which they differed was 
 that Jessel, M.R., considered that there was not that 
 important and substantial difference between the two 
 settlements made by Francis Tussaud for the benefit of 
 his daughter, Mrs. White, which would make the two 
 provisions of a different nature. 3 The Court of Ap- 
 peal, on the other hand, came to the conclusion that 
 there were such differences between the two provisions as 
 to satisfy them judicially that the testator did not, in 
 making his will, suppose himself to be substantially 
 satisfying the obligations of the settlement, and on this 
 ground they reversed the decision. 
 
 " The question arises," said the Court of Appeal, 
 " whether both portions are to be paid. You look at 
 the will for some expression of intention whether one 
 or both are to be paid. If you find no expression, then 
 you are driven to a presumption of law which only 
 arises in the absence of an expressed intention to give 
 a double portion. 4 That is entirely independent of the 
 
 3 Where the testator gives twice to the same person the court 
 ■will consider, primd facie that he intended it as two gifts; this 
 is the doctrine laid down in Hurst v. Beach, 5 Mad. 3oi, and 
 followed by Chancellor Kent in Dewitt v. Yates, 10 Johns. 156; 
 also Minor v. Ferris, 22 Conn. 371; Jones v. Creveling's Exrs., 4 
 Harrison, 127. 
 
 4 If the two gifts are given simpliciter, i.e. with no expression 
 of the motive of the gifts, then the legatee will take both, but if 
 
382 SATISFACTION. 
 
 construction of the will where parol evidence is only 
 admissible to remove a latent ambiguity, ex. gr. where 
 [ -^ 255] two -^-legatees are of the same name: see Jarman on 
 Wills, 4th ed. vol. i. pp. 429 et seq. When you came 
 to a presumption to imply an intention in the will, 
 then the rule always is thai you may admit parol evi- 
 dence 5 to rebut such presumption." 
 
 The parol evidence which was thus admitted did not, 
 however, in the opinion of the Court of Appeal, aid the 
 case of Mrs. White and her children. The question ac- 
 cordingly turned upon the language of the instruments 
 themselves. The question, said the Court of Appeal, 
 must be, is there sufficient on the face of the will to 
 shew that the testator did not intend the provision 
 thereby made to be in lieu of that made by the settle- 
 ment, or, in other words, to satisfy his obligation under 
 that instrument? In arriving at a conclusion on this 
 question, we must, of course, look at the settlement, for 
 the purpose of seeing what the obligations of the testa- 
 tor under that instrument, and the provision thereby 
 made for his daughter's family were. What we have 
 to consider is well expressed by Lord Colonsay in the 
 case of Lord Chichester v. Coventry (ubi supra) in these 
 words: " But I can conceive no consideration more im- 
 portant upon a question of double portions than the 
 " consideration of whether the parties to be benefited 
 by the one are the same as the parties to be benefited 
 by the other, or whether the nature of the benefit con- 
 ferred in the one case is the same as the nature of the 
 benefit conferred in the other." 6 It must be remem- 
 bered that slight differences between the two provisions 
 will not be sufficient to prevent the presumption from 
 arising. Slight differences, however, in the words of 
 Sir John Leach, in Weall v. Rice (2 E. & M. 268), are 
 such " as, in the opinion of the judge, leave the two 
 provisions substantially of the same nature;" and he 
 adds, " every judge must decide that question for him- 
 self." Here the Court of Appeal pointed out that un- 
 der the settlement Mrs. White, with the consent of the 
 
 in the case of each gift a motive or intention is expressed which 
 is the same in the two cases there is a presumption that the tes- 
 tator did not intend to give a second gift; but only to re-express 
 his intention of the first gift. See Snell's Prin. of Eq., 1!>H. 
 
 5 Parol evidence is admissible for the purpose of correcting a 
 mistake in a written instrument. "Wharton's Evidence, Sect. 
 ]019; dimming v. Balgin, 37 N. J. Eq., 476; Stockbridge o. 
 Hudson Iron Co., 107 Mass. 290. 
 
 6 See notes to Ex parte Pye, 2 Lead. Cas. Eq. (4th American 
 Ed.) 782. 
 
SATISFACTION. 383 
 
 trustees, had an absolute power over the fund. She 
 had no such power under the will. Under the settle- 
 ment Mr. White took a life interest after his wife, and 
 in certain events an absolute interest. Under the will 
 he had no interest, and the fund, if no child of Mrs. 
 "White took a vested interest, went over to the testator's 
 sons. These were held by the Court of Appeal to be 
 such substantial differences between the two provisions 
 as to rebut ,the presumption against double portions. 
 
 The following definition of satisfaction given, or Definition of 
 rather adopted, in the notes to Chancey's Case by White satisfaction. 
 and Tudor, 6th ed. vol. ii. p. 382, was cited with ap- 
 proval by the House of Lords in the great case of Lord 
 Chichester v. Coventry (L. K. 2 H. L. 71, 95), where 
 the law on this subject is very carefully considered. 
 
 " Satisfaction is the donation of a thing with the in- 
 tention that it is to be taken either wholly or in part 
 in extinguishment of some prior claim of the donee." 
 
 The doctrine of satisfaction, as stated by the late Mr. 
 Haynes in his Outlines of Equity, 5th ed. p. 291, may 
 be said to arise generally under one of the two follow- 
 ing states of circumstances: — 
 
 ■^ First, When a father or person filling the place r ju 2561 
 of a parent makes a double provision for a child or per- 
 son standing towards him in a filial relation. 
 
 Secondly, When a debtor confers by will or other- 
 wise a pecuniary benefit on his creditor.' 
 
 The first class of cases, i.e. of double provision, may 
 occur in two ways. I. Either the father first gives to 
 his child by will a legacy, and then on some other oc- 
 casion — more commonly on the marriage of that child — 
 makes a pecuniary provision for it, or II. The father, 
 on the occasion of marriage, or on some other occasion, 
 agrees to make a provision for a child, and subsequently 
 makes a bequest to that child by will, as in Lady Ed- 
 ward Thynne v. Earl and Countess of Glengall (2 H. 
 L. C. 131). It is to be remembered that the doctrine 
 of satisfaction in the case of double provision only ap- 
 plies in cases of parent and child or its equivalent, i.e. 
 where a person stands in loco parentis (see ante, p. 
 250). "It is a doctrine," as Lord Eldon said, in the 
 well-known case of Ex parte Pye (18 Ves. 150), "in 
 the application of which legitimate children have been 
 very harshly treated." 
 
 There is a material difference in the practical appli- 
 
 7 If a debtor gives a legacy to his creditor which is equal to or 
 greater in amount than the debt, it is presumed to be intended 
 as a satisfaction of the debt. See 2 Spence's Equity, 605. 
 
384 
 
 SATISFACTION. 
 
 Court leans 
 against 
 double 
 portions. 
 
 [ * 257] 
 
 cation of the general rule of equity which presumes 
 against double portions to children in cases of ademp- 
 tion and in cases of satisfaction. 8 In a case of "ademp- 
 tion," 9 the will, a revocable instrument, is first, and the 
 testator has an absolute power of revoking or altering 
 any gift thereby made. But where the obligation is 
 earlier in date than the will, the testator when he makes 
 his will is under a liability which he cannot revoke or 
 avoid. He can only put an end to it by payment or by 
 making a gift with the condition, expressed or implied, 
 that the legatees shall take the gift made by the will 
 in satisfaction of their claim under the previous obli- 
 gation. 
 
 The question whether a gift in a will is to be con- 
 sidered as a satisfaction of a portion given by settle- 
 ment, or a portion given by settlement is to be taken 
 as an ademption of a gift by will, is one of intention. 
 It is certainly easier to arrive at a conclusion as to that 
 intention where the will precedes the settlement, then 
 where the settlement is first and the will follows. In 
 the case where the revocable instrument is first, and a 
 portion is given by it, if the event of marriage, or any 
 other occasion for advancing a child, should afterwards 
 occur, it may very reasonably be supposed that the pa- 
 rent has anticipated the benefit provided by the will, 
 and has intended to substitute for it the new provision, 
 either entirely, or pro tanto.} But where an irrevoca- 
 ble settlement is followed by a will it is not easy to in- 
 fer that an additional benefit was not intended by the 
 testator, except where he expressly declares his inten- 
 tion to be otherwise, or where the gift in the will and 
 the portion in the settlement so closely resemble one 
 another as to lead to a reasonable intendment that the 
 one was meant to be substituted for the other: Cooper 
 v. Macdonald (L. R. 16 Eq. 257); Tussaudv. Tussaud 
 (ubi supra); Chichester v. Coventry (L. R. 2 H. L. 71, 
 82). 
 
 ■fr In In re Lawes (20 Ch. Div. 81) the testator, 
 standing in loco parentis to his reputed son, Thomas 
 Lawes the younger, executed a bond to secure the pay- 
 ment of £10,000 to him four years afterwards, and 
 
 8 If two bequests occur in the same instrument the presump- 
 tion is strongly in favor of repetition, but if they occur in differ- 
 ent instruments then the presumption is in favor of cumulation. 
 Dewitt v. Yates, 10 Johns. 156 ; and Jones r. Creveling's Execu- 
 tors (supra). 
 
 8 The question of ademption is one of fact and not of intention. 
 Rogers r. French, 19 Geo. 316 ; Swoope's App., 27 Pa. St. 58. 
 
 "" Adams on Equity, sect. 104. 
 
SATISFACTION. 385 
 
 subsequently, shortly before the time when the money 
 was due, entered into an agreement to take him into 
 partnership, and it was provided by the articles that 
 the capital should consist of £37,500 to be brought in 
 by the testator, of which £1 9,000 should be considered 
 as belonging to Thomas Lawes the younger. The tes- 
 tator died without having paid any part of the £10,000 
 so secured. It was held by the Court of Appeal that 
 the benefit under the partnership articles was to be 
 taken in satisfaction of the £10,000 due under the 
 bond. The principle of the cases on this subject was 
 stated by the Court of Appeal (explaining the decision 
 of Sir W. Grant In Bengough v. Walker (15 Ves. 507) ) 
 as follows: — " Where a testator gives to a child a ben- 
 eficial lease or share of works, or any other thing, and 
 says nothing about the value, he is not to be taken to 
 be giving it in satisfaction of a pecuniary bequest, but 
 where he does refer to the value the presumption of 
 satisfaction may arise. And when he gives it as being 
 of larger amount than the legacy, and the legatee takes 
 it, he takes it at the estimated amount, and in that case 
 it makes no difference whether the testator directs the 
 thing to be sold and gives him the proceeds, or directs 
 the thing to be taken as a specific amount. In either 
 case he shews his intention to give a definite amount." 
 
 A question which was discussed by Jessel, M.K., in the What is a 
 course of his judgment was "what is a portion." No portion? 
 one, he said, would imagine that a gift of a necklace 
 by a father to his daughter could be a portion. There 
 must be a sum of such an amount as that it would rea- 
 sonably be presumed to be a portion. It has been de- 
 cided that such a sum is a portion whether given abso- 
 lutely to her or given to her for life with a power of 
 appointment (Lord Chichester v. Coventry, L. It. 2 H. 
 L. 71) or settled in the ordinary way. The question 
 was raised whether the whole sum was to be regarded 
 as a portion, or whether the interest of the husband 
 was to be deducted. The Courts of Equity, " with 
 their usual common sense," said No; that is also a set- 
 tlement to the daughter; it is the way in which a 
 prudent father would settle it. Thus it was held in 
 Lady Thynne v. Earl of Glengall (2 H. L. C. 131) that 
 a gift by will to a daughter for life with remainder to 
 her children, and in Weall v. Rice (2 Kuss. & My. 251) 
 that a gift to a daughter for life, then to the husband 
 for life, and then to the children, were portions. 
 
 With regard to the second head of the doctrine of Debt, when 
 satisfaction it has been established by the authorities 
 
 25 MODBBN EQUITY. 
 
386 SATISFACTION. 
 
 satisfied by that if a debtor bequeaths to his creditor a legacy 
 legacy. equal to, or exceeding the amount of, his debt, it shall 
 
 be presumed, in the absence of any intimation of a 
 contrary intention, on the principle debitor non pre- 
 sumitur donare, that the legacy was meant by the tes- 
 tator as a satisfaction of the debt. This rule, how- 
 ever, though it has long prevailed, " has met with the 
 censure of several eminent judges; and the Courts 
 have inclined to lay hold of any minute circumstances 
 [ "^ 258] whereupon to ground an exception to it. -jf Thus it 
 has been held that the presumption of satisfaction shall 
 not be made where the debt was not contracted till af- 
 ter the making of the will, or where it was a bill of ex- 
 change or negotiable security, or where the legacy was 
 contingent or uncertain or not payable immediately or 
 of a different nature from the debt, or of a specific 
 chattel; 11 and see further in Williams on Executors, 
 8th ed. 1302 et seq. 
 
 In Montagu v. Earl of Sandwich (32 Ch. Div. 525), 
 Lord Sandwich covenanted, in the settlement which 
 was made on the marriage of his second son, to pay 
 him an annuity of £1000 a year for life, and to charge 
 the annuity on a sufficient part of the real estate of 
 which he should die seised in fee with powers of dis- 
 tress and entry, and the settlement contained a proviso 
 that nothing therein should prevent Lord Sandwich 
 from at all times during his life dealing with his real es- 
 tate as fully and effectually as he might have done if the 
 settlement had not been executed so only that sufficient 
 real estate were left charged with the annuity, or from 
 devising any part of it clear from all liability in respect 
 of the annuity, provided his intention to exonerate such 
 part of the real estate from liability were in such de- 
 vise clearly expressed. Lord Sandwich subsequently 
 made his will, devising all his real estate, " subject to 
 the charges and incumbrances thereon," in strict settle- 
 ment on his first and other sons in tail male succes- 
 sively. He bequeathed his personal estate principally 
 among his children, giving his second son legacies, the 
 income of which when invested amounted to considera- 
 bly more than £1000 a year. The Court of Appeal dis- 
 agreed considerably in their view of this case, but in 
 the result the majority came to the conclusion that the 
 presumption against a double portion prevailed, and 
 
 11 The subject of the satisfaction of portions, legacies and debts 
 is fully discussed in notes of Ex parte P.ye (supra), and the rules 
 on the subject are generally the same in this country as in Eng- 
 land. 
 
CONTRIBUTION AMONG SURETIES. 387 
 
 that the second son was not entitled to claim both the 
 annuity and the bequest. 12 One of the judges stated 
 that he felt no confidence that they were giving effect 
 to the real intention of the testator, no confidence that 
 the presumption when applied in this particular case 
 might not be leading them away from the true wish of 
 the testator, yet on the ground that it would be wrong 
 to break through precedent he recorded his judgment 
 in favour of the appeal as a sacrifice made upon the 
 altar of authority. 
 
 •fa Contribution among Sureties. [ -fc 259] 
 
 STEEL v. DIXON. 
 (17 Ch. D. 825.) 
 
 The principle as between co-sureties is equal- Principle. 
 ity of burden and benefit. 1 
 
 Money was advanced to Robison on the security Summary of 
 of a promissory note, which Dixon, Gurney, Steel facts 
 and Chater signed as sureties. Dixon and Gurney 
 only consented to sign on the terms of certain pro- 
 perty being assigned to them by Robison as security. 
 Steel and Chater had no knowledge of this ar- 
 rangement, but it was held that they were entitled 
 to share in the benefit of the security held by Dix- 
 on and Gurney. 2 
 
 12 In New York it has been held that the intention of the tes- 
 tator that a subsequent gift or advancement shall operate as a 
 satisfaction of a legacy cannot be presumed. Langdon i\ Astor's 
 Ex'rs, 3 Duerr. 477. 
 
 1 See Bispham's Eq. (4th Ed.), Sect. 328. Each surety is re- 
 sponsible only for his proportionate part of the amount actually 
 paid. Bonney v. Seeley, 2 Wendell, 481; Hickman v. McCurdy, 
 7 J. Marsh, 555. The rule in equity is that the burden of the 
 debt is divided among the solvent sureties and the party paying 
 recovers from each of the others an amount dependent upon 
 the number of those who are actually able to pay. McKenna v. 
 George, 2 Rich. Eq. 15; Breckinridge v. Taylor, 5 Dana, 110. 
 
 2 Co-sureties are always entitled to the benefit of any com- 
 promise. See City of Keokuk v. Love, 31 Iowa, 119. 
 
CONTRIBUTION AMONG SURETIES. 
 
 The Court in deciding this case, there being no Eng- 
 lish authority bearing precisely upon the subject, was 
 guided to some extent by the precedents of American 
 decisions, but chiefly by the general principle applica- 
 ble to co-sureties as established by the well-known case 
 of Bering v. Earl of Winchelsea (Cox, 318), decided 
 just a century ago, the short effect of which was stated 
 by the Court to be that " as between co-sureties there 
 is to be equality of the burden and of the benefit." 8 
 " When I say quality I do not mean necessarily equality 
 in its simplest form, but what has been sometimes call- 
 ed proportionate equality. The result of the case of 
 Bering v. Earl of Winchelsea (was expressed by Baron 
 Alderson in Pendlebury v. Walker (4 Y. & C. Ex. p. 
 441 ) in these terms, that ' where the same default of 
 the principal renders all the co-sureties responsible, all 
 are to contribute; and then the law superadds that 
 which is not only the principle but the equitable mode 
 of applying the principle, that they should all contrib- 
 ute equally, if each is a surety to an equal amount; and 
 if not equally, then proportionably to the amount for 
 which each is a surety.' I hold, therefore, that the 
 result of Bering v. Earl of Winchelsea is to require 
 that the ultimate burden, whatever it may be, is, as 
 between the co-sureties, to be borne by them in pro- 
 portion to the shares of the debt for which they have 
 made themselves responsible." * 
 [-^•260] "A" "If that be the case," the judge continued, "it 
 
 follows that each surety must bring into hotchpot every 
 benefit which he has received in respect of the surety- 
 ship which he undertook, and if he has received a bene- 
 fit by way of indemnity from the principal debtor, it 
 appears to me that he is bound, as between himself and 
 his co-sureties, to bring that into hotchpot, in order 
 
 3 Van "Winkle v. Johnson, 11 Oregon, 469; Mills v. Hyde, 19 
 Vt. 59; Campbell r. Mesier, 4 Johns. Ch. 334. 
 
 * At law the co-surety was compelled only to contribute his 
 pro raid proportion, having regard to the whole number of sure- 
 ties, without reference to the fact that some of the sureties might 
 be insolvent, but in equity the burden of the debt is divided 
 among the solvent sureties and the party paying can recover for 
 each of the others his proportionate part of the contribution; 
 thus, where the plaintiff was one of four 1 sureties on a note being 
 compelled to pay, brought suit against his colleagues and recover- 
 ed a judgment against each, for one-fourth of the entire amount 
 of the costs, interest and principle, but not for an attorney's fee 
 which was provided for on the face of the note, as he was not 
 compelled to pay it. Acres r. Curtis, Supreme Court of Texas, 
 4 S. W. Rep. 551; Stothoff v. Dunham, 19 N. J. Law, 182; Hen- 
 derson v. McDuffee, 5 N. H. ; Morrison v. Poyntz, 7 Dana, 307. 
 
CONTRIBUTION AMONG SURETIES. 389 
 
 that it may be ascertained what is the ultimate burden 
 which the co-sureties have to bear, so that that ultimate 
 burden may be distributed between them, equally or 
 proportionably, as the case may require." 5 
 
 It was however expressly pointed out in the judg- 
 ment in Steel v. Dixon (17 Ch. D. 832), that the equity 
 which raises the surety's right to have all benefits 
 brought into hotchpot, maybe varied or departed from. 6 
 This might happen in two ways: 
 
 1. The co-sureties for whose benefit the security 
 would otherwise enure, might renounce or contract 
 themselves out of the benefit. 
 
 2. One co-surety might by reason of his default in 
 performing his duty towards another co-surety estop 
 himself from asserting the equity which he would other- 
 wise have had against him. 7 
 
 If some of the sureties are insolvent the solvent sure- 
 ties are obliged to contribute the loss proportionately 
 among them. 8 Hitchman v. Stewart (3 Drew. 271), 
 where the decree, stated in Seton on Decrees, p. 1181, 
 orders certain of the defendants to pay so much of the 
 costs as had been occasioned by their resisting contri- 
 bution. 
 
 The principle of equal contribution between co-sure- 
 ties was applied in MacDonald v. Wentfield (8 App. Cas 
 733) to successive indorsers of a bill of exchange, and 
 see In re Arcedekne, Atkins v. Arcedekne (24 Ch. D. 
 709), where the judgment in the leading case of Steel ' 
 
 v. Dixon is cited with approval. 
 
 In the recent case of In reMcMyn, IdghtborneY. Me- 
 Myn (33 Ch. D. 575), it was held that a co-surety who 
 had satisfied a judgment obtained by the creditor against 
 the debtor and her co-surety, was entitled to stand in 
 the place of the judgment creditor, and thus obtain 
 
 5 It does not make any difference if the sureties are bound at 
 different times or by different' instruments provided that they 
 are bound by the same debt and occupy the position of co-sure- 
 ties. Stout v. Vance, 1 Robinson (Va.), 169; Warner?). Price, 3 
 "Wend. 397; but if each is a distinct suretyship the right of con- 
 tribution does not exist. Langford v. Perrin, 5 Leigh, 552. 
 
 6 The various liabilities of co-sureties often depends upon the 
 understanding between the parties to the transaction which may 
 be shown in a suit to enforce contribution. Barry v. Eansom, 12 
 N. Y. 462; Hendricks v. Whitmore, 105 Mass. 23. 
 
 ' One of several defendants who has been guilty of a breach 
 of trust who has paid a decree against them all cannot enforce 
 contribution from the others. Herr v. Barber, 2 Mackey, (D. C. 
 Repts. ) 545. 
 
 8 Breckenridge v. Taylor {supra); McKerina v. George, 2 Rich. 
 Eq. 15. 
 
390 CONTRIBUTION AMONG SURETIES. 
 
 priority over the unsecured creditors ' in an administra- 
 tion action (see In re Maggi, 20 Ch. D. 545) although 
 she had not brought action or obtained an assignment 
 of the judgment. 
 
 It was laid down in the old case of Ranelaugh v. 
 Hayes (1 Vern. 189, 2 Oh. Cas. 146), that "although 
 the surety is not troubled or molested for the debt, yet 
 at any time after the money becomes payable the Court 
 will decree the principal to discharge it, it being un- 
 reasonable that a man should always have such a cloud 
 hanging over him." I0 Wooldridge v. Norris (L. R. 6 
 Eq. 410), but see Hughes- Hallett v. Indian Mammoth 
 Gold Mines Co. (22 Ch. D. 561). 
 
 By the Mercantile Laiv Amendment Act (19 & 20 Vict. 
 c. 97, sect. 5), a surety who pays off a debt secured by 
 judgment or bond is entitled to have assigned to him 
 every judgment specialty or security held by the, cred- 
 itor in respect of such debt. See Furgusson v. Gibson 
 (L. E. 14 Eq. 379); Forbes v. Jackson (19 Ch. D. 615), 
 where the previous authorities are reviewed. 
 [ -^ 261] -^ It was held in Ex parte Young, In re Kitchen (17 
 
 Ch. Div. 668) (following the authority of an American 
 case), that in the absence of special agreement a judg- 
 ment or award against the principal debtor is not bind- 
 ing on the surety. The surety is entitled to have the 
 liability proved against him in the same way as it is 
 proved against the principal debtor. 
 Law as to I Q Davies v. London and Provincial Insurance Com- 
 
 disclosure, pany (8 Ch. D. 469), it was held that under the cir- 
 cumstances an agreement of suretyship must be re- 
 scinded on the ground of non-disclosure. The law was 
 stated as follows: In some cases there must be com- 
 plete disclosure, ex. gr. in contracts between agent and 
 principal, solicitor and client (see ante, pp. 189 et seq.), 
 guardian and ward, trustee and cestui que trust; in an- 
 other class of cases there must be complete disclosure 
 of all material facts, ex. gr. in partnership, marine in- 
 surance (see post, p. 267). Suretyship, however, is not 
 a contract " uberrima fidei, and there is no obligation 
 
 9 Erb's Appeal, 2 Pa. St. 296; Clason v. Morris, 10 Johns. 524; 
 Foster v. Trustees, 3 Ala. 302. 
 
 10 If the principal debtor is insolvent the surety may proceed 
 against him before paying the debt, so as subject particular 
 assets to the payment of the debt. Bishop v. Day, 13 Vt. 81;' 
 McConnell v. Scott, 15 Ohio, 401. 
 
 11 The doctrine of contribution is not so much founded on con- 
 tract, as on the principal of equity and justice, that where thr- 
 interest is common the burden also shall be common. Russell «. 
 Pailer, 1 Ohio (N. S.), 327; White v. Banks, 21 Ala. 705; Camp- 
 bell v. Meiser, 4 Johns. C. B., 334. 
 
LIFE INSURANCE. 391 
 
 to make the fullest disclosure, but very little said which 
 ought not to have been said, and very little not said 
 which ought to have been said, would be sufficient to 
 prevent the contract being valid. 
 
 The surety is discharged if time is given to the prin- Surety, how 
 cipal debtor without the surety's assent. 12 If the cred- discharged. 
 itor binds himself not to sue the principal debtor for 
 however short a time, he does interfere with the surety's 
 theoretioal right to sue in his name during such period. 
 It has been settled by decisions that there is an equity 
 to say that such an interference with the rights of the 
 surety — in the immense majority of cases not damag- 
 ing him to the extent even of a shilling — must operate 
 to deprive the creditor of his right of resource against 
 the surety, though it may be for thousands of pounds. 
 Per Cockburn, L. J., who seems to have greatly disap- 
 proved of the principle, though he speaks of it as being 
 so firmly established that it can only be altered by the 
 legislature. The creditor may, however, reserve his 
 rights against the surety, Oiuen v. Homan (4 H. J_i. C. 
 997); Webb v. Hewitt (3 K & J. 438); and see gener- 
 ally as to the discharge of the surety by variation of 
 the contract, and by acts of the creditor affecting or 
 altering his position, Seton on Decrees, 3rd ed. p. 1189 
 et seq., where the numerous authorities on the subject 
 (to which may be added Rainbow v. Juggins (5 Q. B. 
 D. 422), where it was held that the surety was not dis- 
 charged) are elaborately reviewed. 
 
 •jcLife Insurance. [ >f- 262] 
 
 In re LESLIE/LESLIE v. FRENCH. 
 
 (23 Ch. D. 552.) 
 
 A stranger or a part owner of a policy of life Principle. 
 insurance cannot acquire a lien on the proceeds 
 of the policy for premiums paid by him except 
 (1) by contract, (2) as trustee, (3) by subroga- 
 tion to the trusts of a trustee, (4) as- mortgagee. 1 
 
 Mrs. French, a widow, effected a policy on her 
 
 12 Everly v. Eice, 20 Pa. St. 297; N. H. Savings Bank v. Col- 
 cord, 15 N. H. 123. 
 
 1 See Hodgson v. Id., 2 Keen, 704; and Bliss on Life Insur- 
 ance, page 750. 
 
392 LIFE INSURANCE. 
 
 Summary of own life for £5000. Soon after she married Mr. 
 
 facts. Leslie, the testator, and handed the policy to him. 
 
 Subsequently, on the marriage of their daughter 
 with Mr. Trevelyan, Mr. Leslie covenanted to pay 
 £6000 on the death of his wife to trustees on the 
 trusts of the settlement. He then assigned the pol- 
 icy to the trustees of the settlement as security and 
 covenanted with them to pay the premiums during 
 the life of his wife. Mr. Leslie paid the premiums 
 until his death, and after his death his executors 
 continued to pay them out of his estate. The ques- 
 tion then arose whether his estate was entitled to a 
 lien or charge on the policy for the amount of the 
 premiums paid by him and his executors. The 
 Court decided that there was no right to any lien 
 or charge. 2 
 
 Lien or In this case Fry, L. J., whose judgment was adopted 
 
 charge, how by Pearson, J., elaborately reviewed the authorities 
 created. with regard to the cases where a lien or charge may be 
 
 created upon the moneys secured by a policy in favour 
 of the person who pays the premiums to keep the 
 policy on foot. The authorities, he said, established 
 that such a lien or charge can be created in favour of 
 a mere stranger or part owner in only four cases, viz. : 
 
 1. By contract by the beneficial owner. 3 This, he 
 said, was illustrated by the case of Aylwin v. Witty (30 
 
 [ -^ 263] L. J. Ch. 860), where a mortgagor -^- had contracted 
 with a mortgagee to pay the premiums on a policy, and 
 the sureties, who had paid premiums, were held enti- 
 tled to a lien on the policy moneys on the principle 
 that by contract they were entitled to all the mort- 
 gagee's securities, and see ante, pp. 259 et seq. 
 
 2. By reason of the right of trustees to indemnity 
 out of their trust property for money expended by them 
 in its preservation. 
 
 3. By subrogation or substitution, i.e. when a person 
 who, at the request of a trustee, has advanced money 
 
 2 The right to the money to be received from the policy may 
 be assigned without any reference to the policy. Wood i>. Phoenix 
 Mut. Life Ins Co., 22 La. An. 617. 
 
 s The payment of a premium, without any contract with the 
 person entitled to the benefit of the policy, gives no title to it. 
 Bliss on Life Insurance, 546; Burridge v. Row, 1 Y. & C. C. C, 
 183. 
 
LIFE INSURANCE. 393 
 
 for the preservation of the property is allowed to stand 
 in his place and succeed to his right of indemnity. 
 
 4. By reason of the right of a mortgagee to add to 
 his charge any money paid by him to preserve his prop- 
 erty. 
 
 These points were illustrated by the cases of Clack 
 v. Holland (19 Beav. 262), where trustees, not having 
 a charge under the circumstances, could not create a 
 charge in favour of the persons from whom they had 
 borrowed the money, Gill v. Downing (L. B. 17 Eq. 
 316), where mortgagees were held entitled to a lien co- 
 ordinate with their title, and Todd v. Moorehouse (L. B. 
 19 Eq. 69), where trustees were held entitled to create 
 a lien by subrogation, i.e. to give their rights to those 
 who had paid at their request. These were the only 
 cases in which, according to the authorities, a lien or 
 charge could be created on the policy. Fry, L. J., there 
 considered on principle the question of payment by a 
 mere stranger without contract and without request. 
 Such a payment was in the eye of the law a mere im- 
 pertinence, and no action could lie for the money. The 
 law as to "confusion," a term borrowed from the Boman 
 Law, was equally clear. " If I pour my gold into your 
 heap, or put my silver into your melting pot, or turn 
 my corn into your granary, I have no right to an ac- 
 count or any relief against you, but on the contrary I 
 have actually transferred the property in what was 
 mine to the person with whose property I have mingled 
 it." 
 
 Another argument in the plaintiff's favour was based Renewal of 
 on the well-established principle that, if a tenant for leaseholds, 
 life renews leaseholds and dies before the expiration of 
 the renewal, his estate is entitled to a lien on the inter- 
 ests in remainder, proportionate to the unexpired por- 
 tion of the renewed term. This argument was an- 
 swered by pointing out that the equities governing the 
 relation of tenant for life and remainderman are pecu 
 liar, and that there was no analogy whatever between the 
 case of a tenant for life making such a payment and 
 the case of Mr. Leslie paying premiums on a policy 
 over which he had full control at every moment of his 
 life, and which, but for his contract on his daughter's 
 marriage he could have sold or surrendered without 
 the consent of his wife. 
 
 It had been also contended that the plaintiff was en- Acqui- 
 titled to a lien, on the ground of the acquiescence of escence. 
 the other person interested in the policy, on the prin- 
 ciple that when one persons allows another to expend 
 
394 LIFE INSURANCE. 
 
 money upon his property, and stands by during such 
 expenditure, a lien is created in favour of the person 
 [•^■264] making the ^- expenditure. To this it was answered 
 that no such lien is created, except in the case of a 
 person who makes the payment under a belief in the 
 validity of his own title, while in the present case there 
 was nothing whatever to shew that Mr. Leslie acted 
 under any mistake with regard to his rights in the 
 policy, and on the other hand it was certain that dur- 
 ing a considerable part of the period covered by his 
 payments he was in possession of the opinion of coun- 
 sel as to his legal rights. 
 
 The position of a person who pays premium upon a 
 policy of life insurance was carefully considered in 
 Falcke v. Scottish Imperial Insurance Co. (34 Ch. Div. 
 234), where the previous authorities were reviewed, and 
 it was held that the owner of the equity of redemption 
 ■of a policy did not obtain a lien by payment of pre- 
 miums, and the Court of Appeal expressed an opinion 
 that the doctrine of salvage has no application to the 
 payment of premium on a policy. 
 Payment Prior to the decision of the case to which we shall 
 
 into Court, presently refer there was some degree of conflict and 
 confusion among the authorities as to whether an as- 
 surance company was justified in paying policy money 
 into Court under the Trustee Relief Act, 1847. 
 
 In Desborough v. Harris (5 D. G. M. &. 439) Lord 
 Cranworth proceeded on the principle that the relation 
 which existed between a company who had granted an 
 ordinary policy of life assurance and the policy holder 
 was, as was decided with regard to banker and custo- 
 mer, simply that of debtor and creditor. In In re Hall 
 (10 W. R. 37), a case of a " family policy," Lord Hath- 
 erley (then Vice-Chancellor Wood) proceeded on the 
 principle that the company being a stakeholder, was 
 justified in paying the money into Court under the Trus- 
 tee Relief Act. There were two subsequent cases, one be- 
 fore Lord Komilly, In re United Kingdom Life Assurance 
 Company (34 Beav. 493), and another before Vice- 
 Chancellor Wood, In re WebVs Policy (L. E. 2 Eq. 
 456), in both of which, as Jessel M.R., pointed out (9 
 Ch. D. 80), the point came before the Court only inci- 
 dentally with reference to the payment of costs. In 
 the latter case, Wood, V.C., speaking of the Trustee 
 Belief Act, said, " The object of the Act was to relieve 
 not only trustees, executors, and administrators, but 
 other persons having trust moneys in their hands, and 
 to enable them to obtain a cheap and efficacious mode 
 
LIFE INSURANCE. 395 
 
 of having the rights of the parties settled. It is in 
 every way desirable that this form of proceeding should 
 be encouraged rather than otherwise." 
 
 It may here be pointed out that the tendency of 
 modern cases is in quite a different direction, and that 
 the Court has latterly been disinclined to allow the 
 costs of payment of money into Court under the Trus- 
 tee Relief Acts. The previous authorities were all re- 
 viewed and considered by Jessel, M.R., in In re Hay- 
 cock's Policy (1 Ch. D. 611) and.Matthew v. Northern 
 Assurance Co (9 Ch. D. 80). In the latter case Pechi 
 effected with the Northern Assurance Company a policy 
 on his life which provided that "the capital, stocks and 
 funds of the company should be liable to pay " the sum 
 of £500 within three -^- months after due proof of his [ -^ 265] 
 death. Pechi assigned his policy to the firm of G. & Co. 
 After Pechi's death, Buchanan, who claimed to be en- 
 titled as surviving partner of the firm of G. & Co., as- 
 signed the policy to Matthew. Due notice of both 
 assignments was given to the company. There were 
 conflicting claims by Matthew and Pechi's executor's, 
 and the company paid the money into Court under the 
 Trustee Relief Act. Held, that the company had no 
 sufficient justification for paying the money into Court 
 under the Trustee Relief Act, and the principle was 
 laid down that a life assurance company is not justified 
 in paying policy moneys into Court under the Trustee 
 Relief Act unless they are moneys "belonging to a 
 trust." Jessel, M.K., in delivering judgment, said that 
 he had no doubt that no such contention as that raised 
 in the present case would have been raised if the action 
 had been brought at common law before the passing of 
 the Judicature Act. Nothing, he said, could be more 
 fatal to the interests of this company than to hold that 
 they were mere trustees who had executed an equitable 
 assignment of their stock in favour of every policy 
 holder, and he accordingly decided that it was meant 
 to be an ordinary policy of insurance, and that it had 
 in fact a covenant to pay so far as the capital and stock 
 of the company would extend. There was no trust at 
 all. The company was simply to pay to the assured, 
 his heirs, executors, or assigns. The case therefore did 
 not fall within the Trustee Relief Act at all, and that 
 answered the question at once. It must however be 
 carefully borne in mind that this case was decided under 
 the law before the Judicature Act. Sub- sect. 6 of the ^ c f c "$™ 
 25th sect, of the Judicature Act, 1873, which deals see l 2 5 ' 
 with the assignment of debts and choses in action, con- sub-sect. 6. 
 
396 LIFE INSURANCE. 
 
 eludes with a proviso that if the debtor, trustee, or 
 other person liable in respect of such debt or chose in 
 action shall have had notice that such assignment is 
 disputed by the assignor or any one claiming under him, 
 or of any other opposing or conflicting claims to such 
 debt or chose in action, he shall be entitled, if he think 
 fit, to call upon the several persons making claim there- 
 to to interplead concerning the same, or he may, if he 
 think fit, pay the same into the High Court of Justice 
 under and in conformity with the provisions of the 
 Acts for the relief of trustees. It was pointed out in 
 In re Sutton's Trusts (12 Ch. D. 175) that this section 
 only applies to absolute assignments, and that as the 
 banking company in that case were not trustees they 
 ought not to ha^e paid the money into Court under the 
 Trustee Relief Act; as however the petitioners had sub- 
 mitted to the jurisdiction by petitioning under that 
 Act, the trustees were allowed their costs. 
 
 The present state of the law is by no means clear, but 
 the language of sect. 25, sub-sect. 6, of the Judicature 
 Act, 1873, would seem to warrant the conclusion that 
 in cases of absolute assignments insurance companies 
 have now the option of paying the money into Court 
 " in conformity with the provisions of the Trustee Re- 
 lief Act" even though there be no trust, and with pre- 
 cisely the same risk as to costs as if they were individ- 
 ual trustees. 
 [ "A" 266] ^ The effect of the Policies of Assurance Act, 1867, 
 
 Policies of (30 & 31 Vict. c. 144),— which anticipated to some ex- 
 Act 1867 ^ en * as re g ar< i8 policies of life insurance, as 31 & 32 
 Vict. c. 86, subsequently did with regard to marine 
 policies, the general procedure of the Judicature Act, 
 1873, sect. 25, sub-sect. 6, cited ante, p. 265, with re- 
 gard to the assignment of choses in action, — was re- 
 i cently considered in Newman v. Newman (28 Ch. D. 
 
 674). Sect. 1 of this Act (which was passed "in order 
 to avoid the necessity of joining the assignor of the 
 policy in action against the insurance office" (28 Ch. 
 D. 680)), enacts that any person or corporation being 
 or becoming entitled by assignment or other derivative 
 title to a policy of life assurance, and possessing at the 
 time of action brought the right in equity to receive 
 and the right to give an effectual discharge to the assur- 
 ance company liable under such policy for moneys 
 thereby assured or secured, shall be at liberty to sue at 
 law in the name" of such person or corporation to recover 
 such moneys. 
 
 By Beet. 3 no assignment made after the passing of 
 
LIFE INSURANCE. 397 
 
 the Act (August 20, 1867) of a policy of life assurance 
 shall confer on the assignee therein named, his execu- 
 tors, administrators or assigns, any right to sue for the 
 amount of such policy, or the monies assured or secured 
 thereby, until a written notice of the date and purport 
 of such assignment shall have been given to the assur- 
 ance company liable under such policy at their or one 
 of their principal places of business, and the date on 
 which such notice shall be received shall regulate the 
 priorty of all claims under any assignment: and a pay- 
 ment bond fide made in respect of any policy by any 
 assurance company before the date on which such notice 
 shall have been received shall be as valid against the 
 assignee giving such notice as if the Act had not been 
 passed. 
 
 By sect. 5 the assignment may be made either by in- 
 dorsement or by a separate instrument in the words or 
 to the effect set forth in the schedule. See Crossley v. 
 City of Glasgow Life Assurance Company (4 Ch. D. 
 421) (overruled on another point in Webster v. British 
 Empire Mutual Life Assurance Company, 15 Ch. Div. 
 169), where it was held that there was no equitable as- 
 signment ; and see Curtius v. Caledonian Fire and Life 
 Insurance Company (19 Ch. Div. 534). An agreement 
 in writing to execute a valid mortgage of a policy which 
 was deposited, was held not to be an assignment within 
 the meaning of the Act: Spencer v. Clarke (9 Ch. D. 
 137). 
 
 It was held in Newman v. Newman (ubi supra) that 
 a first incumbrancer who had not given the statutory 
 notice was not to be postponed to a second incumbrancer 
 who, having had notice of the prior charge, had given 
 the office the statutory notice, had given such notice. 
 The statute, the Court said, was not intended to affect 
 the rights of persons claiming interest in the money 
 outside the insurance office. It was intended to give a 
 simpler remedy against an insurance office, and also to 
 give facilities to insurance offices in settling claims by 
 enabling them to recogDize as the first claim the claim 
 of the person who first gave such notice as required by 
 the statute. It was not -fa intended to enact that a per- [ -^ 267] 
 son who had advanced money upon a second charge with 
 notice of the first and made subject to it, should, by 
 giving statutory notice to the office, exclude the person 
 who had the prior incumbrance. 
 
 The question as to whether a life insurance policy is Conceal_ 
 ■•I i ■ i j. » » i merit and. 
 
 ■vitiated by concealment or misrepresentation of tact was m i sre pre- 
 
 carefully considered by Jessel, M.R., in London Assur- sentation. 
 
398 
 
 LIFE INSURANCE. 
 
 Policy 
 effected by 
 creditor. 
 
 ance v. Mansel (11 Ch. D. 363), and by the House of 
 Lords, Thomson v. Welms (9 App. Cas. 671), in both of 
 which cases the policies were held to be void. In the 
 latter case, Lord Blackburn, whose observations certainly 
 seem to go further than those of Jessel, M.B., recognis- 
 ing a distinction betwen the law with regard to marine 
 insurance and that which respects the other contracts, 
 summed up the present state of the law as follows: — 
 
 " In policies of marine insurance I think it is settled 
 by authority that any statement of a fact bearing upon 
 the risk introduced into the written policy is, by what- 
 ever words and i n whatever place, to be construed as a war- 
 ranty, and prima facie at least that the compliance with 
 that warranty is a condition precedent to the attaching of 
 the risk. I think that on the balance of authority the gen- 
 eral principles of insurance law apply to all insurances, 
 whether marine, life or fire (see per Lord Eldon, C, in a 
 Scotch appeal on a fire insurance, Newcastle Fire Insur- 
 ance Co. v. Macmorran & Co. (3 Dow. 262) ). No ques- 
 tion arises on that in the present case, but I do not think 
 that this rule as to the construction of marine policies is 
 also applicable to the construction of life policies." 
 
 It is competent to the contracting parties, if both 
 agree to it and sufficiently express their intention so to' 
 agree, to make the actual existence of anything a con- 
 dition precedent to the inception "of any contract, and 
 if they do so the non-existence of that thing is a good 
 defence. And it is not of any importance whether the 
 existence of that thing was or was not material; the 
 parties would not have made it a part of the contract if 
 they had not thought it material, and they have a right 
 to determine for themselves what they shall deem mate- 
 rial. Lord Blackburn stated that for the last fifty years 
 it has been usual to insert a term in the contract that if 
 the statements of the assured are untrue the premiums 
 should be forfeited, and in the case before him, being 
 of opinion that the declaration "that the foregoing state- 
 ments were true," should be the basis of the policy, and 
 that accordingly the truth of the particulars, including 
 the statement that the insured was "of intemperate 
 habits," was warranted, decided against the validity of 
 the policy. 
 
 In Bruce v. Garden (L. B. 5 Ch. 32) an army agent, 
 to whom an officer was largely indebted on the balance 
 of their account, effected in his own name at different 
 times six policies on the life of the officer, and in the 
 books kept by the army agent the account of the officer 
 was charged with the premiums paid and with interest 
 
LIFE INSURANCE. 399 
 
 on the balances including the premiums. The officer 
 
 had attended at the insurance -^-office when the policies [ *fc 268] 
 
 were effected, but there was no evidence that the account 
 
 had ever been shewn to him, or that he knew that he 
 
 was charged with the premiums in the account. " The 
 
 Court," said Lord Hatherly, in delivering judgment, 
 
 "requires distinct evidence of a contract — that the 
 
 creditor has agreed to effect a policy, and that the 
 
 debtor has agreed to pay the premiums, and in that 
 
 case the policy will be held in trust for the debtor." 
 
 In the present case the Court was of opinion that no 
 
 such contract had been established, and accordingly the 
 
 army agent was held entitled to the policy moneys." 
 
 The following principle is to be extracted from the Principle of 
 cases on this subject. Where the relation of debtor the cases, 
 and creditor subsists, and the true construction of the 
 instruments and the evidence of the real nature of the 
 transaction shews that the policy of assurance was 
 effected by the creditor as a security or indemnity, if 
 the debtor directly or indirectly provides money to de- 
 fray the expense of that security he is, on a principle 
 of natural equity, entitled to have the security delivered 
 up to him when he pays his debt, which it was directly 
 or indirectly at his expense effected to secure. This is 
 an application of the maxims, Qui sentit onus sentire 
 debet et commodum, and Secundum naturam est commo- 
 da cujusque rei eum sequi quern sequuntur incommoda : 
 Courtenay v. Wright (2 GifF. 337-351). 
 
 With regard to cases where the transaction takes the 
 form of the grant of an annuity with a right of repur- 
 chase, and the grantee effects an insurance on the life 
 of the grantor by way of security, the law was summed 
 up in Gottlieb v. Crunch (4 D. M. & Q. 440-444) as 
 follows : — 
 
 The mere circumstance that a purchaser of an an 
 nuity insures the life on which the annuity depends, 
 does of course not give to the person or estate that pays 
 the annuity an interest in the policy. In that simple 
 state of things the policy belongs merely to the person 
 who has chosen to effect it for his own protection or 
 advantage. It generally, or often, happens that when 
 an annuity is purchased the amount of the annuity, or 
 the price to be given, is fixed on the principle of ob- 
 taining for the purchaser a certain amount per cent. 
 for his purchase money, and enough also to insure on 
 the ordinary terms the life on which the annuity de- 
 pends. And in addition to these cases, see Lea v. Hin- 
 ton (5 D. M. & G. 823) Drysdale v. Piggott (8 D. M. & 
 
400 
 
 LIFE INSURANCE. 
 
 G. 546), and the recent case of Preston v. Neele (12 Ch. 
 
 D. 760), where the previous authorities are reviewed, 
 
 and Gottlieb v. Cranch and Knox v. Turner (ubi supra), 
 
 are followed. 
 
 Life Asm- Jjiie assurance were made the subject of special legis- 
 
 rance Com- lation by three Acts of Parliament passed in three suc- 
 
 panies Ads. ce6 sive years— 33 & 34 Vict. c. 61; 34 & 35 Vict. c. 58; 
 
 35 & 36 Vict. c. 41 — which are to be cited as the Life 
 
 Assurance Companies Acts, 1870 to 1872. 
 
 By sect. 3 of the Act of 1870, which is to be read 
 along with sect. 1 of the Act of 1871 and sect. 1 of the 
 Act of 1872, every company commencing the business 
 [ ^ 269] of life assurance within the United Kingdom -^-is re- 
 quired to deposit £20,000 in the Court of Chancery, to 
 be returned as soon as its life assurance fund accumu- 
 lated out of the premiums shall have amounted to 
 £40,000. 
 
 By sect. 4, which is to be read along with sect. 2 of 
 the Act of 1872, the life funds are to be kept separate. 
 By subsequent sections elaborate statements are re- 
 quired to be made by life insurance companies. Sects. 
 14 and 15 prescribe the conditions on which alone 
 amalgamations are to be permitted. By sect. 21, 
 passed on account of the decision in In re European 
 Life Assurance Society (L. R. 9 Eq. 122), the Court 
 may order the winding-up of any company in accord- 
 ance with the Companies Act, 1862, on the application " 
 of one or more policy holders or shareholders, upon it 
 being proved to the satisfaction of the Court that the 
 company is insolvent; and in determining whether or 
 not the company is insolvent, the Court shall take into 
 account its contingent or prospective liability under 
 policies and annuity and other existing contracts, but 
 the Court shall not give a hearing to the petition until 
 security for costs for such amount as the judge shall 
 think reasonable shall be given, and until a prima 
 facie case shall also be established to the satisfaction 
 of the judge. 
 
 Sect. 22 enables the Court, where a company is 
 proved to be insolvent, to reduce the contracts upon 
 such terms and subject to such conditions as the Court 
 thinks just, in the place of making a winding-up order. 
 See In re Qreat Britain Mutual Life Assurance Society 
 (20 Ch. Div. 351). 
 Novation. A great change was introduced by sect. 7 of the Act 
 
 of 1872 dealing with the subject of " novation " by 
 policy-holders, which caused so much controversy in 
 the liquidations of the Albert and European Assurance 
 
ELECTION. 401 
 
 Companies. See Buckley on Companies, 4th ed. p. 
 331. For the future, no policy-holder of a company 
 amalgamated with or transferred to another shall by 
 reason of payment of premium, or any other act, be 
 deemed to have abandoned any claim which he would 
 have had against his original company on due payment 
 of premiums to such company, or to have accepted in 
 lieu thereof the liability of the other company, unless 
 such abandonment and acceptance have been signified 
 by some writing signed by him or by his agent law- 
 fully authorized." 
 
 * Election. ■ ' [ -fc 270] 
 
 In re VAEDON'S TRUSTS. 
 (31 Ch. D. 275.) 
 
 The doctrine of election is founded on the Principle. 
 presumption of a general intention that effect 
 shall be given to every part of an instrument, 
 but this presumption may be rebutted be evidence 
 of a particular intention inconsistent with the 
 general intention. 1 
 
 A settlement had been made on the marriage of Summary of 
 Mr. Walker and Miss Vardon, then an infant, by tacts - 
 which £5000 was settled upon trust that the income 
 should be paid to her for her separate use with re- 
 straint upon anticipation, and she also covenanted 
 to settle all after-acquired property upon trusts the 
 effect of which was to give Mr. Walker the first life 
 interest with an ultimate trust in default of children 
 for Mrs. Walker. The question was whether she 
 could take a sum of over £8000, which was after- 
 
 1 " The doctrine rests upon the principle that a person claim- 
 ing under an instrument shall not interlere hy title paramount 
 to prevent another part of the same instrument from having 
 effect according to its construction." Gable v. Daub, 4 Wright 
 (Pa.), 217; O'Reilly v. Nicholson,'45 Mo. 160; Reaves v. Garrett, 
 34 Ala. 558; Brown v. Pitney, 39 111. 468. 
 
 26 MODERN EQUITY. 
 
402 ELECTION. 
 
 wards bequeathed to her for her separate use with- 
 out making compensation out of her life estate in 
 the £5000. The Court of Appeal decided, revers- 
 ing the decision of Kay, J., that the lady was not 
 put to her election. 2 ' 
 
 Basis of The principle on -which the doctrine of election is 
 
 doctrine. based was stated in the recent case of In re Lord 
 Chesham, Cavendish v. Dacre, (31 Ch. D. 466), to be 
 that a donee shall not be allowed to approbate and re- 
 probate, but if he approbates he shall do all in his 
 power to confirm the instrument which he approbates; 3 
 and see Rogers v. Jones (3 Ch. D. 688). And the 
 question in the leading case was whether this principle 
 was applicable to the facts before the Court. It will 
 be observed that the settlement had been executed 
 while Mrs. Walker was an infant. 
 
 Mrs. Walker contended, said the Court of Appeal, 
 that she is entitled to retain the benefit under the set- 
 [ -fa 271] tlement because it was -fa income settled to her sepa- 
 rate use without power of anticipation, and that she is 
 entitled to the benefit under the will because the will 
 which gave it to her was operative, and the covenant 
 which would take it away from her was inoperative, 
 and it is evident that her contention must prevail un- 
 less she can be reached by the doctrine of election. In 
 determining this point, the Court of Appeal finding, as 
 Lord Justice Fry said, a conflict of opinion (see the 
 cases noticed in p. 281) in the Courts of first instance, 
 and an absence of any decision either of the House of 
 Lords or the Court of Appeal, felt itself at liberty, and 
 therefore bound, to decide the question before it upon 
 principle. The principle upon, which it proceeded was 
 this: "The doctrine of election rests not on the par- 
 ticular provisions of the instrument which raises the 
 election, but on the presumption of a general intention 
 in the authors of an instrument that effect shall be 
 given to every part of it.* This general intention is 
 not repelled by shewing that the circumstances which 
 
 2 In order that a person must make an election two things are 
 necessary, the testator must make a valid gift of his own prop- 
 erty and affect to dispose of property which is not his own. 
 Bis.pham's Eq. (4th Ed.), Sect. 298. 
 
 3 Pemberton v. Id., 29 Mo. 409; Brown v. Bicketts, 3 Johns. 
 Ch. 533. 
 
 4 Van Duyne v. Id., 1 McCart. 49; Marriott v. Badger, 5 Md. 
 306; Clay v. Hart, 7 Dana, 1; Wilbanks v. Id., 18 111. 17. 
 
ELECTION. 403 
 
 in the event gave rise to the election -were not in the 
 contemplation of the author of the instrument. 5 It 
 may, however, be repelled by a declaration in the in- 
 strument itself of a particular intention." The autho- 
 rities for this proposition were Cooper v. Cooper (L. E. 
 7 H. L. 71), and p. 404 of Mr. Swanston's celebrated 
 notes to the cases of Dillon v. Parker and Gretton v. 
 Haward (1 Swan. 359 et seq.) It may be here noticed 
 that a large portion of the learning on the subject of 
 election now possesses merely an antiquarian interest. 
 
 "What," asked the Court of Appeal, "is the force Effect of 
 and effect of this restraint on anticipation ? It pro- restraint 
 vides that nothing done or omitted to be done by Mrs. ^c^atlon 
 "W alker at any given time shall deprive her of the right 
 to receive from the trustees the next and every succeed- 
 ing payment of the income of the fund as it becomes 
 due. But if she be put to her election, and if by her 
 election she deprives herself of the right to receive sub- 
 sequent payments of the income until her husband and 
 children are compensated, it follows that she has by the 
 act of election, or by the default in performing her cov- 
 enant, deprived herself of the benefit of the income in 
 the way of anticipation, which is the very thing which 
 the settlement declares that she cannot do. 6 This set- 
 tlement, therefore, in our judgment, contains a declara- 
 tion of a particular intention inconsistent with the doc- 
 trine of election, and therefore excludes it. This con- 
 clusion appears to us consonant with the general un- 
 derstanding of men and women in England at the pres- 
 ent day. 
 
 " A provision for a married woman who is restrained 
 from anticipation is regarded as giving the highest se- 
 curity known to the law that the married woman shall, 
 come what may to herself and her husbaDd, have from 
 half year to half year some moneys paid intq her very 
 hands to increase her comforts or supply her with main- 
 tenance. And this security would be seriously imper- 
 illed if by the doctrine of election she could take in 
 lieu of thiB inalienable provision a sum of money or 
 other benefit which she might forthwith make over to 
 her husband or squander at her choice." 
 
 The Court of Appeal illustrated this by supposing 
 Mrs. Walker, put* to her election, taking the £8,O0Q [* 272] 
 
 6 A person will not be put to his election upon a doubtful con- 
 struction, and the intention to raise an election must clearly ap- 
 pear. Stokes' Estate, 11 P. P. Sm. 144; Havens v. Sackett, 15 
 N. Y. 365. 
 
 6 Nix v. Bradley, 6 Rich. Eq., 43 ; Weeks v. Sego, 9 Ga. 201. 
 
404 ELECTION. 
 
 and losing her annual income of the £500. In that 
 case, if she lost the £8,000, "she might pass the rest of 
 her life in that very poverty and need against which 
 the inalienable provision of the settlement was design- 
 ed to protect her. 
 
 It may now be considered as settled that the princi- 
 ple of the doctrine of election is compensation, not for- 
 feiture. 7 
 
 There must, as was pointed out in the old case of 
 Bristowe v. Ward (2 Ves. Jun. 336), always be some 
 free disposable property given to the person, which can 
 be made a compensation for what the testator takes 
 away. 
 Summary of The doctrine of election was very carefully consider- 
 law - ed by Jessel, M.E., in Pickersgill v. Rodger (5 Ch. D. 
 
 163-6), where he sums up the law as follows : "Before 
 yon attribute an intention to a testator or testatrix to 
 dispose of that which does not belong to him or her, 
 you must be satisfied from the form of the instrument 
 that it does dispose of the property which does not be- 
 long to him or her — and that is all. 8 The presumption, 
 in the absence of evidence to the contrary, is, that the 
 testator by his will intends merely to devise or bequeath 
 that which belongs to him, and that presumption is in 
 favour of those who, contend against the legatees. On 
 the other hand, it is only a presumption which may be 
 rebutted even by parol evidence ; and it may be re- 
 butted by evidence shewing that, under a misappre- 
 hension of law, the testator believed that the property 
 which did not belong to him did really belong to him.' 
 "Any disappointed legatee is entitled to say, 'You 
 shall not take the benefit given to your estate by the 
 will unless I have made up to me an equivalent bene- 
 fit to that which the testatrix intended me to take.' 
 Sometimes this is called the doctrine of compensation, 
 which is the meaning of the doctrine of election as it 
 now stands. The disappointed legatee may say to the 
 devisee, 'You are not allowed by a Court of Equity to 
 take away out of the testatrix's estate that which you 
 would otherwise be entitled to, until youhave made good 
 to me the benefit she intended for me. That means 
 
 7 Key v. Griffin, 1 Rich. Eq. 67; Stunip v. Findley, 2 Rawle, 
 174; Van Dyke's Appeal, 10 P. P. Sm. 490. 
 
 8 Philadelphia v. Davis, 1 Wharton, 490, and American note 
 to Streatfield v. Id., 1 Lead. Cas. Eq. 333, where last case is crit- 
 icised. Shroderi). Id., 1 Kay, 578. 
 
 s Cases of no little difficulty sometimes arise -where the testa- 
 tor assumes to deal with property in which he has but a limited 
 interest. Bispham's Eq., Sect. 303. 
 
ELECTION. 405 
 
 that no one can take the property which is claimed un- 
 der the -will without making good the amount ; or, in 
 other words, as between devisees and legatees claiming 
 under the will, the disappointed legatees are entitled 
 to sequester or to keep back from the other devisees or 
 legatees the property so devised and bequeathed until 
 compensation is made. Thence arises the doctrine of 
 an equitable charge or right to realize out of that prop- 
 erty the sum required to make the compensation. 
 
 " If you follow out that doctrine you will see that 
 the persons taking the property so devised or bequeath- 
 ed, takes it subject to an obligation to make good to the 
 disappointed legatee the sum he is disappointed of." 
 
 Election may be implied from acquiescence or con- Election 
 duct. In order, however, to be binding it must be by a implied, 
 person who has positive information as to his right to 
 the property, and with that knowledge really means to 
 give that property up : 10 Dillon v. Parker (1 Swanston, 
 359); Wilson v. Thornbury (L. E. 10 Ch. 248.) 
 
 •^f With regard to election by infants the usual prac- [ -fa 273] 
 tice is to direct an inquiry what would be most benefi- Infant, 
 cial to the infant. In other cases, the Court has elected 
 for the infant without a reference to Chambers: Seton 
 on Decrees, pp. 933-936. 
 
 Can a married woman elect during coverture ? Married 
 Cooper v. Cooper (L. R. 7 H. L. 53) would seem to be women, 
 an authority that she could not, for there an inquiry 
 was directed to ascertain what was for her benefit and 
 that of her children, but the matter seems not to have 
 been argued. The point is discussed in Smith v. Lu- 
 cas (18 Ch. D. 544), where the Master of the Eolls de- 
 cided that as a general rule she could, but that she 
 could not elect without the assistance of a Court of 
 Equity so as to make the covenant binding on property 
 thereafter acquired. 11 
 
 It was held in Rogers v. Jones (3 Ch. D. 688) that 
 the right to compensation is not put an end to by the 
 death of the person who was put to his election, but 
 survives against his estate, and may be enforced by an 
 action for damages as in that case. 
 
 The doctrine of ejection applies to property of every 
 kind and to interests of every description,and it is imma- 
 terial whether the donor does or does not know that he has 
 
 10 He is entitled to know the value of the properties before he 
 elects. Kreiser's Appeal, 19 P. F. Sm. 200. 
 
 11 Parties competent to make an election must he sui juris and 
 a court of equity will sometimes elect on behalf of infants and 
 married women. 
 
406 
 
 ELECTION. 
 
 Powers of 
 appoint- 
 ment. 
 
 [•274] 
 
 no right to dispose of the property in respect of which 
 the election has to be made: 12 Watson's Compendium 
 of Equity, 2nd ed. pp. 177-8, citing Wilson v. Lord J. 
 Townshend (2 Ves. Jun. 697); Graves v. Forman, cited 
 3 Ves. 67; Webb v. Lord Shaftesbury (7 Ves. 480); 
 Whistler v. Webster (2 Ves. Jun. 367); Welby v. Welby 
 (2 V. & B. 199). It arises principally in the case of 
 wills " because deeds being generally matters of con- 
 tract the contract is not to be interpreted otherwise 
 than as the consideration which it expresses requires. 
 It has been held to apply to voluntary deeds, to cases 
 of contract for valuable consideration resting in articles, 
 to contracts for value completely executed by convey- 
 ance. Per Lord Selborne, Codrington v. Lindsay (L. 
 R. 8 Ch. 578-587), where the authorities are collected. 
 
 The doctrine also applies to the exercise of powers of 
 appointment: Whistler v. Webster (2 Ves. Jun. 367); 
 and see Wollaston v. King (L. R. 8 Eq. 165), where it 
 was held not to apply as between two clauses in the 
 same will: Coutts v. Acworth (L. R. 9 Eq. 517); White 
 v. White (22 Ch. D. 555); and see In re Swinburne, 
 Swinburne v. Pitt (27 Ch. D. 696). 
 
 A case which is sometimes confounded with the doc- 
 trine of election, though in reality wholly distinct from 
 it, is where a testator makes two distinct gifts of his 
 own property, one beneficial and the other onerous,and 
 the question is whether the donee is entitled to elect 
 to accept the first and disclaim the second. 
 
 The rule in cases of this description is stated in Guth- 
 rie v. Walrond (22 Ch. D. 573-577) to be this, viz. that 
 when two distinct legacies or gifts are made by will to 
 one person he is as a general rule entitled to take one 
 and reject the other, but that his right to do so may be 
 rebutted if there is anything in the will to shew that it 
 was the testator's intention that that option should not 
 exist. 13 Where there is -fa a single and undivided gift, 
 that is primd facie evidence that the gift should be 
 regarded as one, but even in such a case the Court 
 would sometimes be able to discover some subtle indi- 
 cation of an intention that the legatee should be at lib- 
 erty to take part of the gift and leave the rest." 
 
 12 See Bispham's Equity (4th Ed.), Sect. 303. 
 
 13 In order for a person to elect he must make an intelligent 
 choice with full knowledge of all the circumstances. A bare 
 acquiescence is not sufficient. Anderson's App. 12 Casey, 476; 
 Cox v. Rogers, 27 P. F. Sm. 167; Duncan v. Id., 2 Yeates, 302. 
 
 14 If a party has once elected, he is estopped from asserting the 
 right he has chosen to abandon. Bigelow on Estoppel, 503; 
 Mills v. Hoffman, 92 N. Y. 181. 
 
INFANTS. 407 
 
 In In re Chesham, Cavendish v. Dacre (31 Ch. D. 
 466), -where a testator who died in 1882 had left cer- 
 tain chattels by his will upon trust for sale for the ben- 
 efit of his two younger sons, and all the residue of his 
 estate to his eldest son, and the chattels had previously 
 been settled upon trust to go and be held with a man- 
 sion-house of which the eldest son was tenant for life, 
 it was held that as the eldest son had no interest in the 
 chattels which he could make over for the benefit of 
 the younger sons by way of compensation, the doctrine 
 of election did not apply, and further, that the " en- 
 grafted doctrine of compensation" does not apply to 
 the case of a person electing to take under the instru- 
 ment that gives rise to the election, and that the eldest 
 son was not bound to make compensation out of the 
 residue given to him by the will. 
 
 Infants. 
 
 In re AGAR-ELLIS. AGAR-ELLIS v. LASCELLES. 
 (10 Ch. Div. 49.) 
 A father has a right to control the religious Principle. 
 education of his infant children, iut such right 
 may he forfeited or abdicated? The Court re- 
 quires a stronger case to induce it to interfere 
 with the father than with a testamentary guar- 
 dian? 
 
 A Protestant on his marriage with a Roman 
 
 1 The guardianship of his children is not the privilege of a. 
 father, but it is his duty cast UDon him by considerations of pub- 
 lic welfare. Bispham's Eq. (4th Ed.), 546. 
 
 2 Where the habits or the mode of life of the father or the 
 treatment of his children is such as to seriously injure the child's 
 body or morals or to jeopardize its property the custody of the 
 child will be committed to a proper person. People v. Merceir, 
 25 Wendell, 64; In re Waldron, 13 Johns. 418. The mere fact 
 that a father is insolvent is no ground for taking his children 
 away from him; the court has also refused to take the custody of 
 the children away from the father on the charge that he was liv- 
 ing in adultery as he did not bring the child in contact with the 
 woman. States. Baird, 6 C. E. Green, 384; Commonwealth v. 
 Addicks, 5 Binney, 520. 
 
 3 A father is the only one who can appoint a testamentary 
 guardian of his children and where the father does appoint a tes- 
 tamentary guardian the natural right of the mother must yield 
 to the will of the father. See Van Houten's Case, 2 Green C. K. 
 220. 
 
408 INFANTS. 
 
 Summary of Catholic lady gave her a promise which was assum- 
 facts. e( j jjy ^-}j e Court to be " absolute, unconditional, and 
 
 unqualified," that all the children should be brought 
 up as Roman Catholics. Immediately after the 
 birth of the first child the husband determined that 
 all his children should be brought up as Protest- 
 ants, and gave express directions to that effect, but 
 the mother, without the father's knowledge, so 
 [■^■275] "fc indoctrinated the children (who were all girls, 
 and were at the time of the institution of the pro- 
 ceedings of ages varying from nine and a half to 
 twelve and a half years), that at last they broke 
 into open revolt and refused to go to a Protestant 
 place of worship. The Court of Appeal refused to 
 examine the children privately, and declined to 
 make any declaration that the children ought to be 
 brought up as members of the Church of England, 
 but granted an injunction to restrain the mother 
 from taking them to confession, or to any church or 
 place of worship where worship was performed 
 otherwise than according to the rites and ceremo- 
 nies of the Church of England as by law established. 4 
 
 In this case the Court of Appeal, while omitting the 
 declaration as to the religion in which the children were 
 to be brought up " so as to throw on the father the 
 whole responsibility of doing then and during the re- 
 maining years of his children's respective minorities 
 what was right and proper," upheld in other respects 
 the decision of the judge of first instance. 
 
 The Court first pointed out that it was on principal 
 and authority settled so as to be beyond question or 
 argument that the ante-nuptial promise was in point of 
 law absolutely void. The husband had in the plainest 
 terms expressed his determination so to treat it, and to 
 assert and act upon his legal rights, the performance of 
 
 * The general rule is that in matters of religious belief the 
 court will generally respect the creed of the father hut the rule 
 may be modified by peculiar cases. And in the appointment of 
 a guardian for an infant, the court will regard the expressed de- 
 sire of the deceased parents in reference to the religious educa- 
 tion of the infant. Graham's Appeal, 1 Dallas, 136; Underbill 
 v. Dennis, 9 Paige, 202. 
 
INFANTS. 409 
 
 which he was entitled to say he considered to be his 
 paramount paternal duty. As between the husband and 
 the wife therefore the question is to be determined as 
 if there had never been any such promise, and just as 
 if she or her husband had embraced a new faith after 
 the marriage. This preliminary point disposed of, the 
 Court addressed itself to the great question before it, 
 viz. that as between the father and the children them- 
 selves, or rather as between the father and the law, 
 " which is bound to protect the children from any abuse ' 
 of the parental power." " The right of the father," 
 said James, L.J., "to the custody and control of his 
 children is one of the most sacred of all rights. No 
 doubt the law may take away from him the right, or 
 may interfere with his exercise of it, just as it may take 
 away his life or his property or interfere with his lib- 
 erty, but it must be for some sufficient, cause known to 
 the law. He may have forfeited such parental right by 
 moral misconduct 5 or by the profession of immoral or 
 irreligious opinions deemed to unfit him to have the 
 charge of any child at all, or he may have abdicted such 
 right by a course of conduct which would make a re- 
 sumption of his authority capricious and cruel towards 
 the -^r children. 6 But in the absence of some conduct [ -^ 276] 
 by the father entailing such forfeiture or amounting to 
 such abdication, the Court has never yet interfered with 
 the father's legal right. It is a legal right with no 
 doubt a corresponding legal duty, but the breach or in- 
 tended breach of that duty must be proved by legal evi- 
 dence before that right can be rightfully interfered 
 with." 
 
 " The only point," the judgment went on to say, 
 "upon which there was any doubt, was whether the 
 Court should interfere at all, whether the Court, recog- 
 nizing the father's undoubted right as king and ruler 
 in his own family, could be called on by him to be ancil- 
 lary to the exercise of his jurisdiction, and whether he 
 ought not to be left to enforce his commands by his own 
 authority within his own domain." On the principle, 
 however, that the conduct of the mother was a wrong to 
 the children as well as to the father, the Court consid- 
 ered that the injunction ought to be granted, and that 
 it was its duty, pronouncing what it deemed the law to 
 
 5 State v. Grigsby, 21 Am. Law Reg. (N. S.) 805. 
 
 6 If the children cannot associate with their father without 
 moral contamination or if, because they associate with him others 
 will shun their society the court will refuse to give the father 
 possession of his children. 
 
410 INFANTS. 
 
 be, to leave the matter to his sense of parental duty and 
 to his conscience. 
 
 A farther point of importance arose in the leading * 
 - case. The Court was pressed privately to examine the 
 children and to satisfy themselves by that examination 
 that the children had, in the language of Stourtgn v. 
 Stourton (8 D. S[. & G. 760), " received religious im- 
 pressions to a depth and an extent rendering dangerous 
 and improper any attempt at important changes in 
 them, and so to satisfy themselves that the father was 
 about to abuse his parental authority by seeking to dis- 
 turb such religious convictions." 
 
 The Lords Justices pointed out that that case was 
 the case of a testamentary guardian, a case of mere and 
 pure trust, which is essentially under the jurisdiction of 
 the Court and under a jurisdiction always exercised 
 with the widest judicial discretion, and the same is to 
 be said of all the cases in which the Court had so acted. 
 Testamen- A testamentary guardian (24 Ch. Div. 327) is a 
 
 tary creature of the law, and nature has nothing to do with 
 
 guardian. ^ But the law of England has recognized the natural 
 rights of a father, not as guardian of his children but as 
 the father, because he is the father. In the present , 
 case the Court considered that it had no right to sit in 
 appeal from the father's decision. " He is," they said, 
 " quite as likely to judge rightly as we are to judge for 
 him. At all events, the law has made him, and not us, 
 to be judge, and we cannot interfere with him .in his 
 honest exercise of the jurisdiction which the law has 
 confided to him." ' 
 
 The case of In re Agar-Ellis came again before the 
 Court of Appeal (24 Ch. Div. 317). The father, after 
 the decision in the leading case, removed the children 
 from the care of their mother, allowed the mother to 
 visit them only once a month, and required that all cor- 
 respondence between the mother and children should 
 pass through his hands or be subject to his supervision. 
 Four years afterwards one of the daughters attained 
 sixteen years of age, and a petition was presented by 
 the mother and daughter praying that the daughter 
 might be allowed to spend her next vacation' with her 
 [ -^ 277] mother, and for the future the mother -^ might have 
 free access to her daughter, and that there might be un- 
 restricted communication between them. , The petition 
 
 7 If it is necessary for the proper care of the child's person and 
 property a court of chancery may appoint a guardian. Miner v. 
 Id., 11 111. 43 ; Story's Eq. Juris. Sect. 1341. In the matter of 
 Wollstoncraft, 4 Johns. Ch. 80. 
 
INFANTS. 411 
 
 was strongly opposed by the father, and the Court of 
 Appeal, affirming the decision of Pearson, J., declined 
 to interfere. It would seem, however, somewhat doubt- 
 ful whether, having regard to the legislation which we 
 shall now proceed to notice, the decision of the Court 
 in the last mentioned case would not now be different. 
 
 The law with regard to the guardianship and custody Statute law. 
 of infants which had previously been dealt with by sev- 
 eral statutes, has recently been materially altered by 
 the Guardianship of Infants Act, 1886 (49 & 50 Vict, 
 c. 27). 
 
 The Act which abolished feudal tenures (12 Car. II. 
 c. 24) enabled a father, even though a minor, to ap- 
 point guardians for his legitimate (Sleeman v. Wilson, 
 L. R. 13 Eq. 36) children by deed or will. But since 
 the Wills Act (1 Vict. c. 26) a minor can only appoint 
 a guardian by deed Under this the wishes of a mother 
 were regarded with reference to the appointment of a 
 guardian (In re Kaye, L. B. 1 Ch. 387), but she had no 
 power to appoint a guardian, and her guardianship was 
 superseded in case the husband appointed a guardian. 
 
 TalfouroVs Ac* (2 & 3 Vict. c. 54) enabled the Court 
 to give a mother access to and custody of her children 
 under seven years of age, and this period was extended 
 by the Infants Custody Act, 1873 (36 & 37 Vict. c. 12, 
 repealing 2 & 3 Vict. c. 54). The latter Act was con- 
 sidered in In re Taylor (4 Ch. D. 157), In re Besant 
 (11 Ch. D. 508), Besant v. Wood (12 Ch. D. 605), In 
 re Holt (16 Ch. D. 115), and in In re Elderton (25 Ch. 
 D. 220), where the principle was laid down that the 
 Court, in determining what are the mother's rights, 
 will take into account three matters — "the paternal 
 right," "the marital duty," and "the interest of the 
 infants." 8 In re Ethel Brown (13 Q. B. D. 614). 
 
 The provisions of the Infants Custody Act, 1873, 
 would appear however to be to a large extent super- 
 seded by the sweeping changes in favour of maternal 
 rights which have been introduced by sect. 5 of 49 & 
 50 Vict. c. 27. 
 
 Sect. 2 of that Act provides that on the death of the 
 father the* mother, if surviving, shall be guardian either 
 alone, if no guardian has been appointed by the father, 
 or jointly with any guardian appointed by the father. 
 When no guardian has been appointed by the father or 
 
 8 Infants of tender years have been left ex necessitate with the 
 mother though her principles were of an immoral tendency. 
 Commonwealth v. Addick (supra), but they were afterwards re- 
 moved on arriving at a more advanced age. 2 S. & B. 174. 
 
412 INFANTS. 
 
 if the guardian or guardians appointed by the father 
 is or are dead or refuses or refuse to act, the Court may, 
 if it shall think fit, from time to time appoint a guar- 
 dian or guardians to act jointly with the mother. 9 
 
 Sect. 3 enables the mother of any infant by deed 
 (but note that if an infant she conld not exercise this 
 power by deed as an infant, as the father can under the 
 statutory power conferred by 12 Car. II. c. 24), or will 
 to appoint guardians after the death of herself and the 
 father of such infant (if such infant be then unmarried), 
 and where guardians are appointed by both parents 
 they are to act jointly. 
 [ -^ 278] "^ (2.) And also enables her to make a provisional 
 
 nomination of some fit person or persons to act jointly 
 with the father after her death, " and the Court, after 
 her death, if it be shewn to the satisfaction of the Court 
 that the father is for any reason unfitted to be the sole 
 guardian of his children, may confirm the appointment 
 of such guardian or guardians, or make such other or- 
 der in respect of the guardianship as the Court shall 
 think right." 
 
 (3. ) In the events of guardians being unable to agree 
 upon a question affecting the welfare of an infant, any 
 of them may apply to the Court for its direction, and 
 the Court may make such order or orders regarding the 
 matters in difference as it shall think proper. 
 
 Sect. 4 provides that guardians under this Act are to 
 have the power of guardians appointed under 12 Car. 
 II. c. 24. 10 
 
 A great change with regard to the position of the 
 mother is introduced by sect. 5, which enables the 
 Court to make orders as to custody. It provides that 
 " the Court may, upon the application of the mother of 
 any infant (who may apply without next friend), make 
 such order as it may thiDk fit regarding the custody of 
 such infant and the right of access thereto of either 
 parent, having regard to the welfare of the infant, and 
 to the conduct of the parents, and to the wishes as well 
 
 9 In Pennsylvania by the act of 1833 a devise of a guardian- 
 ship by any other than the father is void, but a father may be 
 estopped from refusing to permit a certain person to act as a 
 guardian to his children, as where a grandfather made a devise 
 to the child upon condition that a person named in his will 
 should be its guardian, and the acceptance by the father of a 
 benefit will estop him from afterwards objecting. Vanartsdalen 
 v. Id., 14 Pa. 384. 
 
 10 This statute, has been generally adopted or re-enacted in the 
 United States. See Act of Va., 1798, V. R. C. vol. I. 240 ; Pur- 
 don's (Pa.) Dig.. Title Wills, Chase's Stat., Ohio, vol. III. 1788; 
 Elmer's N. J. Digest, Title Wills. 
 
INFANTS. 413 
 
 of the mother as of the father, and may alter, vary, or 
 discharge such order on the application of either pa- 
 rent, or, after the death of either parent, of any guar- 
 dian under this Act, and in every case may make such 
 order respecting the costs of the mother and the lia- 
 bility of the father for the same or otherwise as to costs 
 as it may think just." 
 
 Sect. 6 enables the High Court of Justice (but it is 
 to be noted that by sect. 9 all applications to the High 
 Court are to be made to the Chancery Division) " in • 
 its discretion, on being satisfied that it is for the wel- 
 fare of the infant, to remove from his office any testa- 
 mentary guardian, or any guardian appointed or acting 
 by virtue of this Act, and also, if they shall deem it to 
 be for the welfare of the infant, to appoint another 
 guardian in place of the guardian so removed. 
 
 With regard to the general subject of the custody 
 and education of infants, sect. 25, sub. -sect. 10 of the 
 Judicature Act, 1873, enacts that in all questions re- 
 lating thereto, the rules of equity shall prevail, but it 
 was decided in the case of In re Goldsworthy (2 Q. B. 
 D. 75) that though the rules of equity are to prevail, 
 the Common Law Division has a concurrent jurisdic- 
 tion. But see p. 277 as to applications under the 
 Guardianship of Infants Act, 1886. 12 
 
 Other Acts of importance relating to infants are the 
 Marriage Act (4 Geo. IV. c. 76), enabling the Court of 
 Chancery, in case of father, mother, or guardian being 
 non compos mentis, &c, and consequently unable to 
 give a proper consent to an infant's marriage, to give 
 its judicial approval to the marriage; and the Infants' 
 Settlement Act (18 & 19 Vict. c. 43), (one of the late 
 Vice-Chancellor Malins' Acts), which enabled infants, 
 (males not under the age of twenty, and females not 
 under the age of seventeen), with the sanction of the 
 Court of Chancery, to make binding marriage settle- 
 ments. This statute was recently made the -^ subject [ -^- 279], 
 of very careful consideration in the cases of In re Samp- 
 son and Wall, Infants (25 Ch. D. 482), and in In re 
 Phillips (34 Ch. D. 467), where it was held that the 
 Court had jurisdiction where a female infant had mar- 
 
 11 The Court of Chancery has a general supervisory power over 
 the persons and estates of infants. People v. Wilcox, 22 Barb. 
 178 ; Mather v. Andrews, 1 Johns. Ch. 99 ; Preston v. Dunn, 25 
 Ala. 507. 
 
 12 Generally throughout the United States the powers and 
 duties of a guardian are entirely local and cannot be exercised 
 in other States. Sabin v. Gilman, 1 N. H. 193; Armstrong v. 
 Lear 12 Wheat. 156 ; Cox v. Williamson, 11 Ala. 343. 
 
414 INFANTS. 
 
 ried under the age of seventeen, to direct a settlement 
 of her property to be executed. "It is just as neces- 
 sary," the Court said, " and perhaps more so, to extend 
 the protection of the Act to a female infant under sev- 
 enteen as to one over that age. To hold otherwise 
 "would be to afford additional facilities to needy adven- 
 turers anxious to get hold of the property of infants." 13 
 Practice. Business under this Act is specially assigned to the 
 
 Chambers of the Chancery Division by the Rules of 
 - the Supreme Court, O. lv. r. 2 (10), while rule 26 of 
 the same order specifies the evidence which must be 
 produced on such applications. 
 
 See as to making an infant a ward of Court, De 
 Pereda v. De Mancha (19 Ch. D. 451) and Brown v. 
 Collins (25 Ch. D. 56), where the previous cases are 
 reviewed, and it was considered doubtful whether the 
 mere carrying over a fund to the separate account of 
 an infant, in an action to which the infant is not a 
 party, constitutes the infant a ward of Court. Among 
 other cases which are of importance on the subject of 
 the custody of infants may be mentioned " Shelley v. 
 Westbrook, cited in Lyons v. Blenkin (Jack. 267); An- 
 drews v. Salt (L. R. 8 Ch. 622); Re Clarke (21 Ch. D. 
 217). 
 
 13 The Court of Chancery has a power over, the property of the 
 ■ward which extends only to the personal property and the in- 
 come of the real estate ; the court has no power to direct a sale 
 of the real estate for any purpose ; that power rests exclusively 
 with the legislature of the State. Rivers v. Durr, 46 Ala. 418 ; 
 Rogers v. Dill, 6 Hill, 415 ; Williamson e. Berry, 8 Howard, 495. 
 
 " Foster v. Alston, 6 How. (Miss.) 406. 
 
(415) 
 
 ^Receiver — Equitable Execution. [ + 280] 
 
 ANGLO-ITALIAN BANK v. DA VIES. 
 
 (9 Ch. Drv. 275.) 
 
 Ex parte EVANS, In re "WATKINS. 
 
 (13 Ch. I). 252.) 
 
 SALT v. COOPER. 
 
 (16 Ch. D. 544.) 
 
 The Judicature Aet, 1873, has much enlarged principle. 
 the powers of the Court as to appointing a re- 
 ceiver. 1 ' A judgment creditor may obtain equit- 
 able execution against the debtor's equitable in- 
 terest in land by the appointment of a receiver 
 without commencing a fresh action, and with- 
 out suing out a writ of elegit? 
 
 In the first of these cases the Court of Appeal de- summary of 
 cided that a judgment creditor, who could not get facts - 
 possession of the land under a writ of elegit as the 
 legal estate was outstanding in a mortgagee, was 
 entitled to obtain the benefit of his judgment by the 
 appointment of a receiver, and expressed an opin- 
 ion, though it was not absolutely necessary for the 
 purposes of the decision, that the Judicature Act 
 had conferred upon the Court additional powers of 
 appointing receivers, and that the appointment 
 
 1 A receiver will be appointed when equitable rights are in 
 danger of being injured by a holder of the legal title. Kerr on 
 Receivers, 2nd Am. Ed. 53. The court may take property out of 
 the hands of a guardian or executor and appoint a receiver. Lid- 
 dell's Ex'rs. v. Starr, 4 C. E. Green, 163, also where there is a 
 dispute as to the probate of a will, but the court will not inter- 
 fere to appoint a receiver unless there is proof that the legal title 
 is in danger of being abused. Schlecht's App., 10 P. F. Sm. 172, 
 where there is a violation of partnership rights a receiver may be 
 appointed. Slemer's App., 8 P. F. Sm. 168; Gowan v. Jeffries, 
 2 Ashmead, 304; Morey v. Grant, 48 Mich. 326; Barnes v. Jones, 
 91 Ind. 161. 
 
 2 Osborne v. Heyer, 2 Paige, C. R. 342; Kerr on Receivers, 55 
 to 65. 
 
416 KECKIVER — EQUITABLE EXECUTION. 
 
 might be made on motion in the action in which the 
 judgment was obtained. 3 
 
 In the second case the judgment creditor obtained 
 the appointment of a receiver without suing out a 
 writ of elegit. It was held that the appointment 
 operated as an immediate delivery of the land in 
 execution and constituted the creditor a " secured 
 creditor " in the bankruptcy of the debtor. 4 
 [•^■281] "fcln the third case it was held that equitable 
 execution obtained in the original action after final 
 judgment, was good, though in this particular in- 
 stance it was defeated by the fact that the property 
 was legally though not actually in the possession of a 
 receiver 5 who had been appointed by a Court of 
 Bankruptcy a short time before. 
 
 The judgments in these three cases contain a very full 
 discussion of the law on the subject of the appointment of 
 receiver at the instance of judgment creditors in cases 
 where the debtor has only an equitable interest in the land. 
 Jessel, M.R., in his judgment in the first case, lament- 
 ed that the important question there raised was capable 
 of argument. " There is an unsatisfied and undisputed 
 judgment against the defendant for many thousand 
 pounds. The defendant is in possession of freehold 
 land in fee simple of which he is receiving the rents. 6 
 That land happens to be subject to a mortgage, and the 
 legal estate being outstanding in the mortgagee, the 
 
 ? Generally the appointment of a. receiver is a matter which 
 rests in the discretion of the court, but this discretion may be 
 the subject of error. Milwaukee B. B. Co. v. Soutter, 2 Wallace, 
 521. The rules which are followed are pointed out in Blond- 
 heimu. Moore, 11 Md. 364; see also Maynardv. Eailey, 2 Nevada, 
 313 ; Crawford v. Ross, 39 Ga. 44; Tomlinson v. Ward, 2 Conn. 
 391. 
 
 4 Where a receiver is appointed the holder of the legal estate 
 is restrained from interfering with the prosecution of the cred- 
 itor's remedy. If there is an equity of redemption the judg- 
 ment creditor is suffered to redeem. Smith v. Wolf, 104 Pa. St. 
 381; Shamwold v. Lewis, 7 Sawyer, C. C. Eep. 148. 
 
 5 The possession of a receiver will be protected from interfer- 
 ence by third persons. Kerr on Eeceivers. (2nd Am. Ed. ), Chap. 6. 
 
 6 An ordinary chancery receiver does not become liable for, of 
 leased premises by entering upon them in order to take posses- 
 sion of and to sell and dispose of the goods and effects of the 
 lessee under order of the Court. Gaither v. Stockbridge, ct. 
 App. Md., 9 Atl. Eep. 632. 
 
RECEIVER EQUITABLE EXECUTION. 417 
 
 judgment creditor cannot obtain possession of it under 
 the ordinary writ of elegit. It is gravely urged that, 
 notwithstanding the Act of Parliament which applies 
 equitable rules to all matters, the owner of the land 
 can, by reason of the outstanding mortgage, remain in 
 possession and receive the rents in defiance of the judg- 
 ment creditor until the trial of the action, if indeed the 
 argument does not go the length of saying that the 
 judgment creditor has no remedy." 
 
 The first section of the Judgment Act (27 & 28 Vict. 27 & 28 Vict. 
 c. 112), the language of which, as pointed out by Jes- c. 112. 
 sel, M.R., in Anglo-Italian Bank v. Davies (9 Ch. D. Judgment 
 282), fits in neither with the preamble of. the Act nor Act ' 1864 
 the ordinary knowledge of judgment law possessed by 
 those acquainted with the subject, provides that " No 
 judgment, statute or recognisance to be entered up af- 
 ter the passing of this Act, shall affect any land (of 
 whatever tenure) until such land shall have been actu- 
 ally delivered in execution by virtue of a writ of elegit 
 or other lawful authority, in pursuance of such judg- 
 ment, statute or recognisance." It had been decided 
 by the Court of Appeal in Hatton v. Haywood (L. E. 
 9 Ch. 229), that the order of a Court appointing a re- 
 ceiver 7 amounted to a delivery in execution within the 
 meaning <jf the words " other lawful authority," or in 
 other words that the appointment of a receiver operated 
 as "an equitable execution" (and see further on this 
 subject In re South, L. E. 9 Ch. 369). 
 
 In Anglo-Italian Bank v. Davies, which is generally 
 cited as the leading case on the subject, the creditor, 
 who had recovered judgment in an action in the Chan- 
 cery Division, sued out an elegit, and finding that the 
 defendant's real estate was subject to legal mortgages, 
 and could not be taken in execution by the sheriff, then 
 commenced his action in the Chancery Division. The 
 Court of Appeal in this case commented on the useless 
 and absurd form of issuing a writ of elegit, -^ which [ -j^ 282] 
 was decided by Lord Cottenham in Neate v. Duke of 
 Marlborough (3 My. & Cr. 407 J to be necessary, and 
 granted the appointment of a receiver, intimating an 
 opinion at the same time that ' the application might 
 have been in the original action. In Ex parte Evans, 
 In re Watkins (11 Ch. D. 691, 13 Ch. Div. 252), the 
 Court definitely decided that the issue of a writ of elegit 
 
 7 The Court will not appoint a receiver until the defendant be 
 first heard in reply to the application unless the necessity be of 
 the most stringent character. Mays v. Rose, 1 Freeman Ch. 703; 
 Ladd v. Harvey, 1 Foster, 514 ; Vosshell v. Hynson, 26 Md. 83. 
 
 27 MODERN EQUITY. 
 
418 RECEIVER — EQUITABLE EXECUTION. 
 
 in the case of an equitable interest in land was " a use- 
 less, absurd, and idle form, and wholly unnecessary 
 now there is only one system of judicature." See also 
 Smitfi v. Cornell (6 Q. B. Div. 75), where it was held 
 that the application for a receiver was rightly made in 
 the original action. 
 
 In Salt v. Cooper, Jessel, M.E., decided that so long as 
 final judgment in an action remains unsatisfied, the ac- 
 tion is a cause or matter pending within the meaning 
 of section 24, sub-section 7, of the Judicature Act, 1873 
 (and see, further, as to where a matter is ''pending/' 
 In re Claggett, Fordham v. Glaggett (20 Ch. D. 637), 
 and that consequently the Court after final judgment 
 can grant equitable execution by the appointment of a 
 receiver in the action in which the judgment has been 
 obtained, though the writ has not been indorsed with a 
 claim for a receiver. 
 Judicature Sect. 25, sub-sect. 8, of the Judicature Act, 1873, 
 
 Act, 1873, provides (inter alia) that a receiver may be appointed 
 sect 8 ' SU " y an interlocutory order of the Court in all cases in 
 which it shall appear to the Court to be "just or con- 
 venient" 8 that such order should be made ; and any 
 such order may be made either unconditionally or up- 
 on such terms and conditions as the Court shall think 
 just. 9 
 
 In Pease v. Fletcher (1 Ch. D. 273) a receiver was 
 appointed over the whole property comprised in the 
 plaintiff's mortgage as to part of which the plaintiff 
 was legal and part equitable mortgagee. 
 
 In In re H.'s Estate, H. v. H. (1 Ch. D. 276) (where 
 the form of order is given), the defendant, a trustee, 
 being on the eve of bankruptcy, a receiver was appoint- 
 ed on an ex parte application before service of the 
 writ. 10 
 Interim A receiver is not duly constituted until he has given 
 
 receiver. security: Edwards v. Edwards (2 Ch. D. 291). Ac- 
 
 cordingly in pressing cases, an interim receiver may 
 be appointed without security : Taylor v. Eckersley (2 
 Ch. Div. 302). 
 
 In Cockburn v. Cockburn (1 Ch. D. 690) it was said 
 
 8 A receiver will not be appointed on the ground of public con- 
 venience, or because there happens to be no other means of col- 
 lecting or taking care of a fund. Thompson v. Allen Co., 115 U. 
 S. 550. 
 
 9 The powers of a receiver are limited and his possession of 
 property is the possession of the Court. Kerr on Receivers, 
 Chap. 7. 
 
 10 See Orphan Asylum v. McCartee, Hopkins, 429 ; Blondheim 
 v. Moore (supra). 
 
RECEIVER EQUITABLE EXECUTION. 419 
 
 that if the appointment of a receiver is the substantial Endorse- 
 object of the action, the endorsement of the writ should ment of 
 claim it, but this is not essential : Norton v. Jover, W. WTit - 
 N., 1877, p. 206 ; Salt v. Cooper (ubi supra). 
 
 In In re Radcliffe, deceased (7 Ch. D. 733), Jessel, Adminis- 
 M.R., said that the only way to prevent an executor tra t io n 
 from preferring a creditor, was for the plaintiff in an actlon - 
 administration action, upon issuing the writ, immedi- 
 ately to apply for and obtain a receiver. 11 The author- 
 ity of this dictum, however, was doubted by the Court 
 of Appeal in Phillips v. Jones (28 S. J. 360). 
 
 It is not the modern practice a9 formerly to allow 
 the receiver to carry on an action in the name of a 
 bankrupt executor or administrator : In re Hopkins, 
 Dowd v. Hawtin (19 Ch. D. 61). 
 
 •fc Equitable execution was also granted by the ap- [ "^ 283] 
 pointment of a receiver against debts and sums of money Judgment 
 payable to a judgment debtor to which garnishee pro- debtor - 
 ceedings were not applicable, e.g. taxed costs directed 
 to be paid to a solicitor out of a fund standing in the 
 Palatine Court: Westhead v. Riley (25 Ch. D. 413). 
 
 In Ardenv. Arden (29 Ch. D. 702) it was held that 
 a judgment creditor who had obtained equitable execu- 
 tion by the appointment of a receiver subject to exist- 
 ing incumbrances, obtained no priority by giving notice 
 of the appointment of receiver to the trustee of the 
 judgment debtor. 
 
 A receiver may be appointed in a proceeding com- originating 
 menced by originating summons: Gee v. Bell (35 Ch. D. summons. 
 160); Weston v. Levy (31 S. J. 364). 
 
 In Searle v. Ghoat (25 Ch. Div. 723), where a receiver 
 had been appointed after judgment in an action in the 
 Queen's Bench Division, and the order was made "with- 
 out prejudice to the rights of any prior incumbrancers," 
 it was held that a person prejudiced by the conduct of 
 the receiver in giving notice to tenants to pay their 
 rents to him ought not to have commenced a fresh action 
 without leave of the Court, but that his proper course 
 was to apply for such relief as he might be entitled in 
 the action in which the receiver was appointed. 
 
 In In re Fowler, Fowler v. Odell (16 Ch. D. 723), the Leaseholds, 
 tenant for life of leasehold houses had been allowed to 
 receive the rents, and as the houses were not kept in 
 
 11 The Court will not act upon slight grounds to take property 
 out of the hands of an executor or administrator and appoint a 
 receiver ; hut if waste or improper use of the funds or miscon- 
 duct can he proved the Court will then so act. Beverly v. Brooke, 
 4 Gratton, 208. 
 
420 
 
 RECEIVER EQUITABLE EXECUTION. 
 
 Married 
 
 woman's 
 
 property. 
 
 Mortgages. 
 The Con- 
 veyancing 
 Jet, 1881, 
 sect. 19. 
 
 [*284] 
 Receiver 
 appointed 
 on applica- 
 tion of 
 legal mort- 
 gagee. 
 
 Receiver and 
 manager and 
 injunction. 
 
 Receipt of 
 rents in 
 
 repair according to the covenants in the lease, the Court, 
 at the instance of one of the trustees, appointed- a re- 
 ceiver for the purpose of keeping the houses in repair. 
 
 The mode of enforcing a claim against the separate 
 property of a married woman is to obtain equitable 
 execution by an order appointing a receiver or direct- 
 ing the trustees to pay. Such an order may be obtain- 
 ed in an action brought for that purpose, or, semble, 
 where proceedings are already pending it may be made 
 in those proceedings without any fresh action. See In 
 -re Peace & Waller (24 Ch. Div. 405, 407), where the 
 previous authorities are considered and the form of 
 order given. 
 
 In Fuggle v. Bland (11 Q. B. D. 711), where judg- 
 ment had been obtained against defendants, husband 
 and wife, the plaiatiff was, on an ex <parte application, 
 appointed receiver of the income of the reversionary 
 interest to which the wife was or might be entitled un- 
 der the will. 
 
 Section 19 of the Conveyancing Act, 1881, confers 
 upon a mortgagee, where the mortgage is made by deed, 1 
 " a power when the mortgage money has become due 
 to appoint a receiver of the income of the mortgaged pro- 
 perty or any part thereof." The section however ap- 
 plies only so far as a contrary intention is not expressed 
 in the deed (sub-sect. (3)), and only where the mort- 
 gage deed is executed after the commencement of the 
 Act (sub-sect. (4)), and the mortgagee is only entitled 
 to appoint a receiver (sect. 24 (1)), when he has become 
 entitled to exercise the power of sale conferred by the 
 Act (see sect. 20 (1), (2), ,(3)). 
 
 ^-In Tillett v. Nixon (25 Ch. D. 238) a legal mort- 
 gagee brought an action for foreclosure and moved for 
 the appointment of a receiver. It was objected that 
 the application was wholly unnecessary. The Court 
 however held that where an action is pending and the 
 parties are at arm's length, it is more desirable that a 
 receiver should be appointed by the Court, though the 
 appointment might have been made under the Convey- 
 ancing Act, 1881, without coming to the Court. 
 
 A legal mortgagee of an hotel, who was prevented by 
 the mortgagor from taking possession under the mort- 
 gage, was held entitled to the appointment of a receiver 
 and manager and an injunction. Truman & Co. v. Red- 
 grave (18 Ch. D. 547), where the form of order is 
 given. 
 
 See as to receipt of rents by receiver in foreclosure 
 actions Jenner-Fust v. Needham (31 Ch. D. 500), not 
 
RECEIVER EQUITABLE EXECUTION. 421 
 
 followed in Hoare v. Stevens (32 Ch. D. 194), but up- foreclosure 
 held on appeal (32 Ch. Div. 582), and followed in action. 
 Peat v. Nicholson (34 W. R. 451), and distinguished 
 in Coleman v. Llewellin (34 Ch. Div. 143). 
 
 A mortgagee in possession is entitled to the appoint- Mortgagee 
 ment of a receiver notwithstanding he has been paid in posses- 
 all his interest and costs out of rents received by slon - 
 him while in - possession, which he was ordered to pay 
 over to the receiver, and that he has surplus rents in 
 his hands : Mason v. Westoby (32 Ch. D. 206). One 
 object of the Judicature Act (the Court said in this 
 case) was " to enable the Court by the appointment of 
 a receiver to relieve a mortgagee from the great burden 
 imposed upon him by his entering into possession of 
 the mortgaged property." 
 
 In In re Pope (34 W. K. 693) a judgment creditor Judgment 
 without first issuing an elegit obtained equitable execu- creditor, 
 tion by an order for a receiver over land which was 
 subject to an equitable mortgage. The equitable ex- 
 ecution was not registered under 27 & 28 Vict. c. 112, 
 and the debtor subsequently sold to a bond fide pur- 
 chaser without notice. The Court of Appeal held that 
 as the appointment of the receiver operated as a delivery 
 of the land in execution, and as there is no necessity to 
 register execution, when land has been actually deliver- 
 ed in execution, the purchaser was not protected. 
 
 It was held in Yorkshire Banking Company v. Mullen Fore- 
 (35 Ch. D. 125), in a foreclosure action against mort- closure 
 gagor in possession, an order having been made for the ^j?"' or 
 appointment of a receiver and for the tenants to attorn in p 0Sges _ 
 and pay their rents in arrear aud growing rents to such sion. 
 receiver, that the possession of the mortgagor being 
 rightful he was liable to pay an occupation rent from 
 the date of demand by the receiver only, and not from 
 the date of the order appointing the receiver. 
 
 It was held in In re. Coney, Coney v. Bennett (29 Ch- Trustee. 
 D. 993) (following the decision in Stanger Leathes v. 
 Stanger Leathes, only reported W. N. 1882, p. 71), that 
 the Court had jurisdiction to enforce a judgment for 
 payment of money by a defaulting trustee who had 
 •fa absconded, by the appointment of a receiver of his [ -^ 285] 
 equitable interest in property in this country. 
 
 The order may be made by a judge in Chambers: Order in 
 In re Llewellyn, iMne v. Lane (25 Ch. D. 66), where, Chambers, 
 by consent, an immediate appointment was made. 
 
 A receiver is a trustee of money in his hands, and 
 cannot plead the Statute of Limitations until his final 
 
422 PRIVILEGED COMMUNICATIONS. 
 
 accounts have been passed and the recognizances vacat- 
 ed: Seagrim v. Tuck (18 Ch. 3D. 296). 
 Practice. The practice with regard to the securi±y, &c, where 
 
 receivers are appointed, is contained in E. S. C, O. l., 
 r. 16 et seq. 
 
 Privileged Communications. 
 
 Principle. 
 
 Summary of 
 facts. 
 
 LYELL KENISTEDY. 
 
 (9 App. Cas. 81.) 
 
 No. 2. 
 
 Knowledge, information, and belief solely 
 derived from privileged communications are 
 privileged^ 
 
 Interrogatories were administered to the plain- 
 tiff, some of which asked as to his knowledge, 
 information, and belief upon matters which were 
 relevant to the defendant's case. The plaintiff's 
 answer to these interrogatories was that he had no 
 personal knowledge of any of the matters inquired 
 into, and that such information as he had received 
 in respect of them had been derived by him from 
 his solicitors or their agents, who had procured it for 
 the purpose of defending his title, and he submitted 
 that he ought not to be required to make further 
 answer. The House of Lords decided (confirming 
 the decision of the Court of Appeal) that the answer 
 was sufficient. 2 
 
 The House of Lords in this case considered very care- 
 fully the nature and limits of the privilege which the 
 policy of the law has established with regard to com- 
 
 1 No one can be compelled to disclose to the court any com- 
 munication between himself and his legal adviser. Hemenway 
 v. Smith, 28 Vt. 701: Bigler v. Eeyher, 43 Ind. 112; Barkers. 
 Kuhn, 38 Iowa, 392. 
 
 2 A communication to be privileged must be made upon a 
 proper occasion, from a proper motive and must be based upon 
 reasonable or probable cause. Briggs v. Garret, 1 American 
 (Pa.), 404. 
 
PRIVILEGED COMMUNICATIONS. 423 
 
 munications between parties and their professional ad- 
 visers. 3 The defendant as well as the plaintiff is enti- 
 tled " to search his opponent's conscience and to inquire 
 from him -fa not only what he has seen or kDOwn him- [ ^ 286] 
 self, but all of which he has acquired knowledge or be- 
 lief from his agent." This rule, however, is subject to 
 three limitations — 
 
 1. A client has a privilege to prevent his legal adviser Limitations 
 from disclosing any information which he obtains when °? rule ^ to 
 so employed. 4 discovery. 
 
 2. The privilege extends to all papers which the legal 
 adviser 5 has prepared for his client. Your opponent 
 has no right to say "shew me your brief." 6 
 
 3. Opinion and beJief derived from privileged com- 
 munications is privileged. You cannot ask "what is 
 the belief which you have derived from reading that 
 brief?" It was pointed out, however, that if a man has 
 certain knowledge in the ordinary course of things in- 
 dependently of his solicitor, he cannot claim privilege 
 because he learnt it also from his solicitor; ex. gr. if he 
 was told by his solicitor's brief that a tombstone was in 
 a certain place, and if he then went and saw it, he could 
 not claim privilege. 7 
 
 " The foundation of this rule," said Lord Brougham Foundation 
 in the well-known passages from his judgments in Bol- of rule - 
 ton v. Corporation of Liverpool (1 Mylne & K. 94, 95) 
 and Greenhough v. Gaskill ( 1 Mylne & K. 103), "is not 
 on account of any particular importance which the law 
 attributes to the business of legal professors, or any 
 particular disposition to afford them protection. But it 
 is out of regard to the interests of justice which can- 
 not be upholden, and to the administration of justice 
 
 3 Stephen's Law of Ev., article 115; Conn. Life Ins. Co. v. 
 Schafer, 94 U. S. 457; McClellan v. Longfellow, 32 Me. 494. 
 
 4 But if the legal adviser became acquainted with any fact 
 otherwise than in his character as such, the client cannot prevent 
 its production. Coon v. Swan, 30 Vt. 6, so as to communications 
 not relating to his professional employment. Carroll v. Sprague, 
 59 Cal. 655. 
 
 5 The expression, legal advisers, includes barristers, solicitors, 
 their clerks and interpreters. Sibley v. Waffle, 16 N. Y. 180; 
 Jackson v. French, 3 Wendell, 337. 
 
 6 Stephen's Law of Ev. , Article 119. When a person is entitled 
 to refuse to produce a document he cannot he compelled to give 
 oral evidence of its contents. Wescott v. Atlantic Co. , 3 Metcalfe, 
 282; Durkee v. Leland, 4 Vt. 612. 
 
 7 Neither can a client combine with his attorney to keep papers 
 from being produced by putting them in the latter's possession. 
 People v. Sheriff, 29 Barb. 622, but papers which are professional 
 communications are still protected. Pulford's App., 48 Conn. 
 247. 
 
424 PRIVILEGED COMMUNICATIONS. 
 
 ■which cannot go on. without the aid of men skilled in 
 jurisprudence, in the practice of the Courts and in 
 those matters affecting rights and obligations which 
 form the subject of all judicial proceedings." ," If such 
 communications were not protected no man would dare 
 to consult a professional adviser with a view to his de- 
 fence or to the enforcement of his rights, and no man 
 could safely come into a court either to obtain redress 
 or to defend himself." 
 
 " Truth," said Lord Justice Knight Bruce in Pearse 
 Pearse (1 De G. & Sm. 28, 29), "like all other good 
 things, may be loved unwisely, — may be pursued too 
 keenly, — may cost too much. And surely the meanness 
 and the mischief of prying into a man's confidential 
 consultations with his legal adviser, the general evil of 
 infusing reserve and dissimulation, uneasiness, suspi- 
 cion, and fear, into those communications which must 
 take place, and which, unless in a condition of perfect 
 security, must take place uselessly or worse, are too 
 great a price to pay for truth itself." 
 
 In Slade v. Tucker (14 Ch. D. 824) it was held that 
 a pursuivant of the Heralds College employed with re- 
 gard to a pedigree was not a legal adviser, and that 
 privilege could not be claimed. 
 
 In Foakes v. Webb (28 Ch. D. 287) the action was 
 for specific performance, and the plaintiff interrogated 
 the defendant as to whether certain interviews had not . 
 taken place and certain correspondence passed between 
 the defendant's solicitor and a third party in reference 
 to the agreement. The defendant declined to answer 
 on the ground of privilege, but the Court held that as 
 [ -j{ 287] the solicitor would have been -^-obliged to answer such 
 a question if put to him in the witness box, the client 
 was bound to answer. 
 
 In Bidder v. Bridges (29 Ch. D. 30) the plaintiffs 
 were held entitled to refuse to answer certain interro- 
 gatories on the ground that they were practically di- 
 rected at discussing the evidence by which the plain- 
 tiffs intended to prove their case at the hearing. In 
 this case the judges of the Court of Appeal, were by 
 consent of the parties, placed in the position of arbi- 
 trators, and they settled what parts of the interroga- 
 tories ought to be answered. 
 
 It was held in Eden v. Weardale Iron and Coal Com- 
 pany (34 Ch. Div. 223), that third parties who were 
 opposing the plaintiff's claim had put themselves in the 
 position of " opposite parties " to the plaintiff, and the 
 plaintiff had a right to examine them by interroga- 
 
PRIVILEGED COMMUNICATIONS. 425 
 
 tories. In the same case it was also held on similar 
 grounds that, the third parties might interrogate the 
 plaintiff (35 Ch. Div. 287) ; and see Molloy v. Kilby 
 (15 Ch. Div. 162), where it was held that co-defendants 
 were not " opposite parties ;" see also Brown v. Wat- 
 kins (16 Q. B. D. 125), and Shaiv v. Smith (18 Q. B. 
 Div. 196), where Brown v. Watkins (ubi sup.) is ex- 
 plained, and the principle is laid down thus : " by ' op- 
 posite parties ' is meant parties ' between whom there is 
 some question in conflict, some right to be adjusted in 
 the action.' " 
 
 In Minet v. Morgan (L. E. 8 Ch. 361), where the 
 previous authorities are reviewed, Lord Selborne cited 
 with approval the principle laid down in Lawrence v. 
 Campbell (4 Dr. 490) : "As regards an English solic- 
 itor it is not now necessary, as it formerly was, for the 
 purpose of obtaining protection, that the communica- 
 tions should be made either during or relating to an 
 actual or even to an expected litigation. It is sufficient 
 if they pass as professional communications in a pro- 
 fessional capacity. 8 
 
 The effect of the authorities (which will be found Summary of 
 collected in the argument (17 Ch. Div. 676) ) was thus authorities. 
 summed up by the Court of Appeal in Wheeler v. Le 
 Marchant (17 Ch. Div. 675, 682). The actual commu- 
 nication to the solicitor by the client is of course pro- 
 tected, and it is equally protected whether it is made 
 by the client in person or is made by an agent on be- 
 half of the client, and whether it is made to the solic- 
 itor in person or to a clerk or subordinate of the solic- 
 itor who acts in his place and under his direction. 
 Again, the evidence obtained by the solicitor, or by his 
 direction or at his instance, even if obtained by the 
 client, is protected if obtained after litigation has been 
 commenced or threatened with a view to the defence or 
 prosecution of such litigation. So again, a communica- 
 tion with a solicitor for the purpose of obtaining legal 
 advice is protected, though it relates to a dealing which 
 is not the subject of litigation, provided it be a com- 
 
 8 No legal adviser is permitted, whether during or after the 
 termination of his employment as such to disclose any commu- 
 nication unless with his client's express consent. It is imma- 
 terial whether the client is, or is not, a party to the action in 
 which the question is put to the legal adviser. Bacon v. Frisbie, 
 80 N. Y. 394; Burnham «. Roberts, 70 111. 19; Cross v. Riggins, 
 •50 Mo. 335; also Blackburn v. Crawford. 3 Wallace, 175, where 
 the client's waiver was implied. After the client's death his 
 executor or administrator cannot waive. Westover v. iEtna Life 
 Ins. Co. 99 N. Y. 56. 
 
426 DISCOVERY IN ACTION FOR RECOVERY OF LAND. 
 
 munication made to the solicitor in that character and 
 for that purpose. 9 
 
 This case was approved of in Pearce v. Foster (15 
 Q. B. Div. 114), where it was held that documents which 
 the plaintiff stated on affidavit had been partially pre- 
 pared by the plaintiff's solicitor in an action previously, 
 brought against a party other than the present defend- 
 ant, were privileged. 
 
 [ -jf 288] -^- Discovery in Action for Recovery of Land. 
 
 LYELL v. KENNEDY. 
 (8 App. Cas. 217.) 
 
 Principle. In an action for the recovery of land the 
 
 plaintiff has the same right to discovery as a 
 plaintiff in any other action} 
 
 Summary of The plaintiff, who claimed as assignee of the co- 
 facts, heiresses of a deceased intestate owner of the fee, 
 brought his action in the Chancery Division- to re- 
 cover possession of ieal estate with mesne profits. 
 The defendant pleaded continuous possession for 
 over twelve years, and claimed the benefit of the 
 Statute of Limitations. The plaintiff interrogated 
 the defendant as to 1 he pedigree and heirship of his 
 assignors, and as to alleged admissions that he was 
 in possession of the land as trustee. Held, by 
 the House of Lords, that the interrogatories must be 
 answered in substance, subject to any privilege 
 against particular discovery which the defendant 
 might be entitled to claim. 
 
 Former Prior to the decision of the House of Lords in this 
 
 practice. remarkable case, in which the plaintiff, claiming by a 
 
 9 A communication made in furtherance of any criminal pur- 
 pose is not privileged. Dedley v. Beck, 3 Wis. 274. 
 
 1 It is a rule of chancery practice that a party shall not be com- 
 pelled to make discovery of his title deeds when they simply* 
 support his own title, but only when they support the title of his 
 adversary. Cullison v. Bossm, 1 Md. Ch. 95: Thompson v. Engle, 
 3 Gr. Ch. (N.S.) 271; 2 Story's Eg. Jur. sect. 1490. 
 
DISCOVERY IN ACTION FOR RECOVERY OP LAND. 427 
 
 legal title, brought an action in the Chancery Division 
 to recover possession of real estate and mesne profits, 
 it was regarded as the settled practice (and the Court 
 of Appeal proceeded upon that principle) that a 
 plaintiff in ejectment claiming by a legal title was not 
 entitled to any discovery even of matters relevant to 
 his own case.' 
 
 This practice was supposed to be founded upon the 
 principle that a plaintiff in ejectment at law must suc- 
 ceed (if at all) by the strength of his own title, and 
 that it was against public policy to assist him in search- 
 ing into the evidence of the defendant's title. 
 
 The decision of the Court of Appeal was, however, 
 based upon wholly insufficient material, as the single 
 case of Horton v. Bott (2 H. & N.) 249) was deemed 
 to be practically decisive of the controversy. The result 
 of subsequent Tesearch among the authorities (which 
 are -^ most elaborately reviewed in Lord Selborne's [ -^ 289] 
 judgment), brought to light no less than fifty-seven 
 cases in the time of Queen Elizabeth, and a series of 
 cases from the time of Lord Nottingham, in which bills 
 of discovery were filed in equity in aid of ejectments at 
 law. The result was an unanimous reversal by the 
 House of Lords of the previous unanimous decision of the 
 Court of Appeal. Lard Bramwell in delivering judg- 
 ment disposed of the question as follows : 
 
 " As a general rule a party to a suit in the Superior 
 Courts has, to support his own case, a right to discov- 
 ery from his opponent. This must be because the law 
 supposes that the ends of justice will be furthered 
 thereby. But it is said that the case of a plaintiff seek- 
 ing to recover land is an exception to this rule. I can- 
 not agree. Such an exception can only exist because 
 justice in such suits would • not be furthered by such 
 discovery, or because it is not desirable it should be. 
 It seems to me impossible to say the former. The 
 truth will be got at by the same means in suits to re- 
 cover land as in other suits. We are driven therefore 
 to the only other reason, viz., that in such suits it is 
 not desirable that justice should be furthered thereby, 
 which is impossible. Why should it not? Why not 
 by all the means by which it is furthered in other suits ? 
 It was said that public policy is opposed it. Why ? It 
 is said that the plaintiff in such a suit recovers on the 
 strength of his own title. But the truth is, a plaintiff 
 
 2 Stephen's Digest of the Law of Ev., 12, Berry v. Paddin, 11 
 Allen 577; Boston v. Richardson, 105 Mass. 351; Hosford v. Bal- 
 lard, 39 N. Y. 147. 
 
428 
 
 DISCOVERY OF DOCUMENTS. 
 
 always, if he recovers, does so on the strength of his 
 own title. If the action is for the detention of a chat- 
 tel, the plaintiff must shew a title to it. If on a bill <">f 
 exchange, he must shew the defendant is a party. I 
 see no reason in principle for the defendant's conten- 
 tion." 
 
 In Emmerson v. Ind, Coope & Co. (33 Ch. Div. 223), 
 an action was brought in the Chancery Division to re- 
 cover possession of land. The defendants pleaded pos- 
 session, and objected to production of documents on 
 the ground that they were purchasers for value without 
 notice, and they also objected to produce certain of the 
 documents on the further ground that none of them 
 proved or tended to prove the plaintiff's case. 8 The 
 Court of Appeal held that in the present case the old 
 rules of practice as to bills of discovery did not apply, 
 and that the action being one for relief, the plaintiff, 
 being put to proof of her title, had all the ordinary 
 rights of discovery of matters tending to support her 
 title. It was , however, held that the plaintiff was not 
 entitled to discovery of the documents which the de- 
 fendants swore did not prove or tend to prove her case, 
 though the defendants did not swear that the docu- 
 ments contained nothing impeaching the defendants' 
 title, for a plaintiff, the Court of Appeal said, must re- 
 cover by the strength of his own title, and is not en- 
 titled to discovery for the purpose of shewing that the 
 defendant has not a title. 
 
 [*290] 
 
 •^Discovery of Documents. 
 
 HALL v. TRUMAN, HANBDEY & CO. 
 (29 CH. Div. 307.) 
 
 Principle. The Court will watch with care and some 
 
 jealousy any attempt to obtain discovery of docu- 
 ments by interrogatories. 
 
 Summary of The defendant had made a sufficient affidavit of 
 facts. documents, and the plaintiff subsequently adminis- 
 
 tered a general roving, searching interrogatory as 
 
 s There is a strong presumption that a person having the pos- 
 session of property is the owner thereof. See Vining v. Baker, 
 53 Me. 544; Rawley v. Brown, 71 N. Y. 85. 
 
DISCOVERY OF DOCUMENTS. 429 
 
 to documents. Held, by the Court of Appeal (con- 
 firming the decision of Kay, J.), that the defendant 
 ought not to be compelled to answer. 
 
 The history of the subject of discovery of documents History of 
 is told in the judgment of the Court of first instance in the law on 
 the leading case. How some thirty years {.go every discovery of 
 motion day was much taken up by motions for the pro- doculnents - 
 duction of documents. How to every set of interroga- 
 tories or other discovery as to documents, there was ap- 
 pended a common form of interrogatory. How a regu- 
 lar war was carried on, generally by motions in Court, 
 as to the sufficiency of the answers or as to documents 
 alleged to be privileged. How this flourishing of 
 weapons before the trial became a most formidable in- 
 convenience, and how at last in 1852 by the Chancery 
 Amendment Act a power was conferred on the Court 
 to make an order for production of documents on oath 
 by either party. It was then finally settled by the two 
 cases of Manby v. Benicke (8 D. M. & G. 470) and 
 Piffard v. Beeby (L. E. 1 Eq. 623) that a party who 
 had made or who was willing to make the usual affida- 
 vit as to documents, might decline to answer any inter- 
 rogatory as to documents. The question which was 
 discussed in the present case was whether the new 
 rules under the Judicature Act have altered the prac- 
 tice in this respect. 
 
 The present Order xxxi. r. 12, provides that any jj g q. 
 party may, without filing any affidavit, apply to the 1883, O. 
 Court or a judge for an order directing any other party XIXL r - 12 - 
 to any cause or matter to make discovery on oath of 
 the documents which are or have been in his possession 
 or power, relating to any matter in question therein. 
 On the hearing of such application the Court or judge 
 may either refuse or adjourn the same, if satisfied that 
 such discovery is not ^ necessary or not necessary at [ -fa 291] 
 that stage of the cause or matter, or make such order 
 either generally or limited to certain classes of docu- 
 ments as may in their or his discretion be thought fit. 
 The latter paragraph of this rule which seems to very 
 materially increase the discretionary power of the 
 Court, is new. It was pointed out by the Court of 
 first instance in the leading case (p. 314) that there is 
 no specific provision in the rules as they now stand as 
 to cross-examination, nor as to any right to interrogate 
 with regard to documents. 
 
430 
 
 DISCOVERY OF DOCUMENTS. 
 
 General 
 
 practice as 
 to ordering 
 further 
 affidavit of 
 documents. 
 
 Place for 
 production 
 of docu- 
 ments. 
 
 The general practice with regard to ordering a fur- 
 ther affidavit of documents (which had been previously 
 considered with much care by the Court in Jones v. 
 Monte Video Gas Company (5 Q. B. D. 556)) was thus 
 stated in the leading case. A party who has made an 
 affidavit of documents cannot be ordered to make a fur- 
 ther affidavit unless, either upon the face of the affidavit 
 itself, or of the documents referred to in it, or in his 
 pleading there in something which affords a presump- 
 tion that he has in his possession other relevant docu- 
 ments besides those the" possession of which he has ad- 
 mitted. 
 
 In the recent case of Sumsion v. Pictor (30 S. J. 468) 
 the Court of Appeal declined to interfere with the dis- 
 cretion of the judges who had refused to order a further 
 affidavit of documents, and said that they would not go 
 minutely into the documents upon such an application. 
 The principle of the rule, they stated, was that in order 
 to justify the requiring of a further affidavit, it must be 
 shewn, not only that there were probably other docu- 
 ments in the defendant's possession, but that those doc- 
 uments were probably relevant to the issues in the ac- 
 tion. If it appeared that they could not possibly be 
 relevant to the issues, it would be wrong to require a' 
 further affidavit to be made. 
 
 In British and Foreign Contract Co. v. Wright (32 
 W. R. 413) it was laid down that the Court will, as a 
 rule, refuse discovery of documents before the delivery 
 of the statement of defence, and see Hancock v. Guerin 
 (4 Ex. D. 3). See also Union Bank of London v. Manby 
 (13 Ch. Div. 239), where in an action for redemption 
 against a mortgagee in possession the order was made - 
 before defence, and Egremont Burial Board v. Egremont 
 Iron Ore Co. (14 Ch. D. 158), where the order was re- 
 fused. 
 
 It was pointed out in Brown v. Sewell (16 Ch. Div. 
 517) that the old Chancery Practice founded on the rule 
 that documents ought to be deposited at the Eocord and 
 Writ Clerk's Office (now by 42 & 43 Vict. c. 78 the Cen- 
 tral Office), and that to allow them to be produced at 
 the solicitor's office was an indulgence, still prevails, 
 and that if an order is made for production of docu- 
 ments at the office of the producing party's solicitor, 
 that party, even if ultimately successful, is not entitled 
 to his solicitor's costs of production, or to his own of 
 inspecting the documents of the other party. The 
 Common Law practice is different, and it was suggested 
 in Brown v. Sewell that a rule ought to be made mak- 
 
DISCOVERY OF DOCUMENTS. 431 
 
 irig the practice of both divisions uniform. No such 
 rule, however, has yet been issued. See further on this 
 subject Bray on Discovery, pp. 176 et seq. 
 
 •j? In Prestney v. Corporation of Colchester (24 Oh. [ •£ 292] 
 Div. 376) the common order for production of docu- Change in 
 ments at the solicitor's office in London was made P la ^ e °J. 
 against the defendants with regard to some thousands *j? aocu- 
 of documents, which consisted principally of ancient ments. 
 charters and books of account, some of which had been 
 injured by fire, and could not be safely moved. It waB 
 held by the Court of Appeal that after an order for pro- 
 duction of documents, the judge or his successor may 
 at any time make a fresh order appointing a different 
 place if the circumstances render it advisable, and the 
 Court of Appeal will not interfere with his discretion 
 except on special, grounds. In the present case a direc- 
 tion was added that the order should be without preju- 
 dice to any application the plaintiffs might make with 
 reference to the production of any particular documents 
 which they might desire to inspect in Court, and that 
 the defendants should undertake to pay any additional 
 costs caused by the alteration in the place of produc- 
 tion. 
 
 ' In Dadswell v. Jacobs (34 Ch. Div. 278), a singular 
 action was brought against an agent claiming produc- 
 tion of documents to a person appointed by the plain- 
 tiffs. The defendant objected to produce the docu- 
 ments on the ground that the person appointed was a 
 clerk of a rival and unfriendly house of business. The 
 Court of Appeal decided, distinguishing the case of 
 Brown v. Perkins (2 Ha. 540), that the defence was 
 reasonable, and at the same time expressed a doubt 
 whether an action would lie at all for the sole purpose 
 of obtaining production and inspection of documents by 
 a particular agent named by the plaintiff. 
 
 It will be observed that in the leading case the plain- Cases where 
 tiff failed in his attempt to obtain by means of interrog- interroga- 
 atories a second affidavit as to documents- -or, as the ^"allowed. 
 Court of Appeal put it, " to put the defendant a second 
 time on the rack " with regard to the discovery of docu- 
 ments. The Court, however, pointed out that there 
 might be cases where such interrogatories would be al- 
 lowed. If, they said, the Court is satisfied that, not- 
 withstanding the affidavit, there is or may be some spe- 
 cified relevant document or documents in the possession 
 of the party whom it is desired to interrogate, it may 
 possibly be right to allow an interrogatory to be put 
 whether that particular document, or those particular 
 
432 DISCOVERY OF DOCUMENTS. 
 
 documents, is or are in his possession. But a primQ, 
 facie case must be shewn before such an interrogatory 
 can be permitted, and it should be made the subject of 
 a special application. It might, for instance, the Court 
 said, where there was an issue as to a particular docu ■ 
 ment, be proper to allow a special interrogatory as to 
 that. In all cases the matter was for the discretion of 
 the judge, but in no case would it be right to allow, as 
 was asked in the present case, "a general roving, search- 
 ing interrogatory to be put." 
 E. S. C. O. xxxi. r. 15 of the Rules of the Supreme Court, 
 
 1883, O. 1883, enables every party to a cause or matter to obtain, 
 
 xxxi. r. o. ky notice in writing, production and liberty to take 
 copies of any document to which reference is made in 
 pleadings or affidavits, The rule then proceeds as fol- 
 lows : — 
 [ -^ 293] -fa And any party not complying with such notice 
 
 shall not afterwards be at liberty to put any such docu- 
 ment in evidence on his behalf in such cause or matter, 
 unless he shall satisfy the Court or a judge that such 
 document relates only to his own title, he being the de- 
 fendant to the cause or matter, or that he had some 
 other cause or excuse which the Court or judge shall 
 deem sufficient for not complying with such notice, in' 
 which case the Court or judge may allow the same to 
 be put in evidence on such terms as to costs and other- 
 wise as the Court or judge shall think fit. 
 
 The latter words beginning with " in which case," 
 &c, are an addition to the rule of 1875. It was 
 pointed out, Quilter v. Heatley (23 Ch. Div. 42), that 
 there is a broad distinction between applications for 
 documents referred to in the pleadings where produc- 
 tion must be ordered at once unless some special reason 
 contra be shewn, and general applications for dis- 
 covery of documents relating to the matters in question 
 in the action. 
 
(433) 
 
 Place of Trial. 
 
 PHILLIPS v. BEALE. 
 (26 Ch. Div. 621.) 
 
 A plaintiff" has a right to lay the venue of an Principle. 
 action in any place he pleases {subject to the 
 order of the Court if it should think it expe- 
 dient to change the venue), even though the ac- 
 tion is one which is assigned to the Chancery 
 Division. 1 
 
 The plaintiff in this action claimed (inter alia) Summary of 
 foreclosure. The writ was issued out of the Liver- tacts ' 
 pool District Registry and marked " Chancery Di- 
 vision," but the statement of claim named Liver- . 
 pool as the place of trial, and the plaintiff gave no- 
 tice of trial at the next Liverpool assizes without a 
 jury. Two days before the assizes the defendant 
 applied to the judge of the Chancery Division in 
 chambers to change the venue to London. The 
 judge made the order, but the Court of Appeal re- 
 versed his decision. 2 
 
 •^ This case, which was characterized by the Court [ -^ 294] 
 of Appeal as of considerable importance, arose on the 
 provision contained in Order xxxvi., rule 1, with regard E. S. C. 
 to place of trial. The rule (which, as we shall pres- 1883, O. 
 ently see, modifies considerably the corresponding rule XXXVI - r - 1- 
 
 1 It is a general principle that the transfer of a ca use must be 
 in the manner prescribed by statute. "Wells on Jurisdiction of 
 Court, Sect. 126. If the motive in changing the place of trial is 
 evidently delay the change will not be granted. Smith v. Prior, 
 9 Wendell, 499. The application must also be timely, and 
 laches will waive aright of change. Quinna. Van Pelt, 12 Hun. 
 (N. Y.) 633, and Hoffman v. Sparling, Id. 83. 
 
 2 If the transfer is made the substituted court has the same 
 power over the case as if the case had originally commenced 
 there. Clark v. Sawyer, 48 Cal. 138. 
 
 28 MODKBN EQUITY. 
 
434 PLACE OP TRIAL. 
 
 in the Orders of 1875) is as follows : — " There shall be 
 no local venue for the trial of any action except where 
 otherwise provided by statute. Every action in every 
 division shall, unless the Court or a judge otherwise 
 orders, be tried in the county or place named on the 
 statement of claim, or (where no statement of claim has 
 been delivered or required) by a notice in writing to be 
 served on the defendant or his solicitor within six days 
 after appearance. Where no place of trial is named, 
 the place of trial shall, unless the Court or a judge shall 
 otherwise order, be the county of Middlesex." To this 
 the Rule of the Supreme Court passed in Oct. 1884 
 adds : — "The provisions of Order xxxvi., rule 1, shall 
 apply to every action, notwithstanding that it may have 
 been assigned to any judge." The words of the Order, 
 said the Court of Appeal, are precise, and they expressly 
 apply (and herein the present order differs materially 
 from the corresponding rule in the E. S. C. 1875) to 
 every action whether assigned to the Chancery Division 
 or not. The result, therefore, is that the plaintiff has 
 a right to place the venue where he pleases, subject to 
 the order of the Court if it should think expedient to 
 change the venue. The Vice-Chancellor in the present 
 case had not based his order on convenience or the 
 place of residence of the witnesses, 3 but had changed 
 the venue simply because the action, being one for fore- 
 closure, was specially assigned to the Chancery Di- 
 vision. 4 The Court of Appeal considered that this was 
 not a sufficient reason, and that it was opposed to the 
 provisions of the Order. The Court also pointed out 
 (and special stress is laid upon the fact in Powell v. 
 Cobb, to which we shall presently refer) that the de- 
 fendant, in applying to change the venue just before 
 the trial, was too late, and had further shewn no good 
 ground for his application. The Lords Justices accord- 
 ingly decided that though the judge had a discretion it 
 was a discretion which under the circumstances they 
 ought to control. 
 
 In Cardinall v. Cardinall (25 Ch. D. 772) the Court, 
 in directing the action to be tried in the Chancery Di- 
 vision, proceeded on the principle that if the action is 
 one of those which is assigned to the Chancery Di- 
 
 3 See Park v. Carnley, 7 How. Pr. 355; American Exchange 
 Bank v. Hill, 22 How. Pr. 29. 
 
 4 Sometimes a want of jurisdiction will justify a transfer, in- 
 stead of a dismissal. Morgan v. Lloyd, 12 Wendell, 266: Hen- 
 derson v. Allen, 23 Cal. 520 ; Britain v. Cowan, 5 Humph. 316; 
 Leary v. Eeagen, 115 Mass. 558. 
 
PLACE OF TRIAL. 435 
 
 vision, and the question raised is a mixed one of law 
 and fact, where the verdict of a jury would not decide 
 the case, but the judge would have afterwards himself 
 to decide the whole matter at issue between the parties, 
 it was not intended that such a case should be sent to be 
 tried by a jury. 
 
 In Powell v. Cobb (29 Ch. Div. 486) it was held by 
 the Court of Appeal that the Court has a discretion with 
 regard to actions assigned to the Chancery Division, as 
 soon as the nature of the issues is clearly seen, to allow 
 a change of venue, and that the Court of Appeal will 
 be slow to interfere with such discretion. In this case 
 the plaintiff sought to set aside certain deeds on the 
 ground of fraud, and named " Cardigan " in his state- 
 ment of claim as the place of trial. The defendant 
 moved -jf before issue joined that the action should be [ -^ 295} 
 tried in the Chancery Division without a jury. The 
 Courb considered that every part of the claim related to 
 equitable relief, that there was not a single issue sug- 
 gested upon which the verdict of the jury would decide 
 aye or no, but a great number of ingredients to deter- 
 mine whether the indentures should be set aside at all, 
 and if so, to what extent they should be set aside. It 
 was held accordingly that as the additional expense 
 would probably be small, the balance of convenience, 
 having regard to the special nature of the case, was in 
 favour of trial in the Chancery Division. The Court 
 of Appeal, in upholding this order, disposed of an ob- 
 jection which had been urged, that the pleadings were 
 not closed, and that the application was therefore pre- 
 mature. If, they said, the pleadings had not disclosed 
 the issues which would have to be tried, the objection 
 would have been a very formidable one, because such 
 an order ought not to be made till the judge had an op- 
 portunity of seeing what the issues were, and judging 
 from their nature whether the case ought to be tried with 
 a jury or without a jury, or where it ought to be tried. 
 As however in the present case it was admitted that no 
 amendment was required, and the plaintiff had no wish 
 to bring forward any new facts, it was held that there 
 was no ground for interfering with the judge's discre- 
 tion. In the recent case of Shroder & Co. v. Myers & 
 Co. (34 W. R. 261), in the Queen's Bench Division, it 
 was held that the Court would not change the venue 
 laid by a plaintiff unless the defendant can shew some 
 serious injury and injustice to his case by a trial at that 
 venue. 5 __ 
 
 6 The most usual cause for change of venue is that an impartial 
 
436 PLACE OP TRIAL. 
 
 In Green v. Bennett (32 W. E. 848) an action which 
 involved a difficult question of vendor's lien concerning 
 lands in Cornwall, was brought in the Chancery Divi- 
 sion, and the plaintiff gave notice of trial for the Exe- 
 ter Assizes, and the defendant moved to change the 
 venue to Middlesex, so as to have the trial in the Chan- 
 cery Division. The Court held on the one hand (fol- 
 lowing Cardinall v. Cardinall) that the circumstance 
 that the action would be tried more speedily at the as- 
 sizes, was not a ground for deciding in the plaintiff's 
 favour. It also held on the other hand, as in the lead- 
 ing case, that the fact that the action had been rightly 
 brought in the Chancery Division did not supply a 
 sufficient reason for the change of venue. As, however, 
 the Court was of opinion that the balance of conven- 
 ience as regard the parties and witnesses was in favour 
 of a trial in London, and as it considered that the trial 
 at the assizes would only be nominal, and that the further 
 consideration would probably be adjourned to London 
 for the disposal of the difficult point of law involved, 
 the venue was changed to Middlesex. 
 Naming Order xx. rule 5, provides that the statement of claim 
 
 place ot must in all cases in which it is proposed that the trial 
 
 11 should be elsewhere than in Middlesex, shew the pro- 
 
 posed place of trial. The effect of this Order in con- 
 junction with Order xxviii. rule 2, dealing with the sub- 
 ject of amendment, was carefully considered by the 
 Court of Appeal in Locke v. White (33 Ch. Div. 308), 
 [ -fa 296] where it was held that the power ^ which the plaintiff 
 possesses of naming a place of trial other than Middle- 
 sex must be exercised in the original statement of claim. 
 If he omits to do so, he cannot name it in an amend- 
 ed statement of claim; and if he has named a place 
 of trial in the original statement of claim, he cannot 
 alter it in an amended statement of claim. 6 
 
 trial may be secured. A general allegation of the existing preju- 
 dice in a certain community is sufficient reason to grant the 
 change. Taylor v. Gardner, 11 R. I. 182; Clark v. People, 1 
 Scam. 120; Burrows v. People, 11 111. 121. The court has nojur- 
 isdiction, if the parties by mutual consent agree to the change of 
 venue. Walsh v. Ray, 38 111. 30; Pierson v. Finney, 37 111. 29. 
 
 6 The mere fact that a county is the plaintiff in an action for 
 the recovery of a forfeiture, is not sufficient ground for a change 
 of venue. State v. Merrihew, 47 la. 112. Where there are 
 several joint defendants they must all unite in the application 
 in order to secure a change of venue. Sailly v. Button, 6 Wen- 
 dell, 508; Rupp v. Swineford, 40 Wis. 28. 
 
(437) 
 
 Admissions. 
 
 [FREEMAN v. COX. 
 
 (8 Ch. B. 148.) 
 
 The principle on which the Court now pro- Principle. 
 ceeds in ordering payment of money into Court 
 is that an accounting party who does not dis- 
 pute that the money is owing by him will he 
 deemed to have made a suMcient admission. 1 
 
 Notice of motion was served upon the defendant Summary of 
 in an administration action for payment of certain ac ' 
 moneys into Court. There was an affidavit shew- 
 ing that the defendant had received the money. 
 The defendant did not appear on the motion, and 
 an order was made that he should pay the money 
 into Court. 
 
 The Master of the Eolls in this case went beyond the Extension of 
 furthest point reached by any of the previous authori- the principle 
 ties. There being no precedent for the order which he on wnicn 
 was asked to make, he announced his intention to ^^ed'to^be 
 " make a precedent." " It seems to me," he said, "that paid into 
 the principle on which the Court has ordered payment Court, 
 of money into Court, has been that the defendant must 
 admit that the money is in his hands for the purpose 
 of the application." In the present case there was the 
 affidavit of the plaintiff that the money had been re- 
 ceived, the service of notice of motion on the defend- 
 ant, and his non-appearance. This was held to be a 
 sufficient admission, "the principle being to make the 
 
 1 Admission may be implied from acts and conduct. Hayes 
 v. Kelley, 116 Mass. 300; Lefevre r. Johnson, 79 Ind. 554; Fos- 
 ter v. Persch, 68 N. Y. 400; Wiggins v. Burkham. 10 Wallace, 
 129. If statements are made in a judicial proceeding silence 
 does not admit their truth if there is no opportunity to respond. 
 People v. Willett, 93 N. Y. 29; Johnson v. Holliday, 79 Ind. 151. 
 Neither does "silence give consent" if the circumstances are such, 
 as would naturally call for a reply or explanation. Kelley v. 
 People, 55 N. Y. 565; Drury v. Hervey, 126 Mass. 519. 
 
438 ADMISSIONS. 
 
 defendant pay into Court what he does not dispute to 
 be owing from him." 2 
 
 In London Syndicate v. Lord (8 Ch. Div. 84) a de- 
 [ -fa 297] cree had been -^ made for taking the account of a part- 
 nership, and two accountants, one representing the 
 plaintiff, the other the defendant, who had been direct- 
 ed by the chief clerk to investigate the accounts, made 
 a report that a certain sum was due from the defend- 
 ant. The chief clerk had not made his certificate, and 
 it was objected that it would be improper to act upon 
 the report of the accountants, as it was " nothing but 
 materials to inform the mind of the Court." The Court 
 of Appeal reversed the decision of Bacon, V.C., and 
 ordered the money to be paid into Court. Jessel, M.K., 
 in delivering judgment, in which he traced the history 
 of the principles on which the Court has acted from 
 time to time in ordering payment of money into Court, 
 said: " It has been held in the Court of Chancery for 
 many years that an admission by an accounting party 
 of a sum being due is sufficient to ground an order 
 upon him to pay the sum into Court. 3 There is not, as 
 far as I know, any virtue in one mode of admission 
 rather than another. What the Court has to be satis- 
 fied of is that the defendant has admitted the amount 
 to be due." The order for payment into Court was ac- 
 cordingly made; Thesiger, L.J., adding that he should 
 like to see the jurisdiction applied to the same extent 
 in the Common Law Division. 
 
 The new power of making judgment and orders upon 
 admissions which was conferred upon the Courts by 
 the orders made under the Judicature Act has been 
 somewhat enlarged by the Rules of the Supreme Court, 
 E. S. C. 1883. The present order (xxxn. r. 6) provides that 
 
 1883, O. u an y party may at any stage of a cause or matter, 
 
 where admissions of fact have been made, either on the 
 pleading or otherwise, apply to the Court or a Judge 
 for such judgment or order as upon such admissions he 
 
 2 It was sworn that the affidavit reached the hands of the ad- 
 ministrator and Sir Geo. Jessel, though he declined in accord- 
 ance with the rule in equity, to rely simply on the proof afford- 
 ed by the affidavit, was yet induced to hold that the silence of 
 the defendant in not disputing the facts deposed to was a suffi- 
 cient admission of their truth. See Taylor on Ev., 701 (Text 
 Book Series); Greenfield Bank r. Crafts, 2 Allen, 269; Wesner?'. 
 Stein, 97 Pa. St. 322. 
 
 3 The burden of proof to show that an admission is sufficient, 
 rests upon the person who wishes the Court to believe it is suffi- 
 cient. Stephen on Evidence, Article 96. and Mallory v. Griffey, 
 85 Pa. St. 275; MacDougal v. Central R. E. Co., 63 Cal. 435; 
 Indianapolis E. E. Co. v. Horst, 93 U. S. 291 . 
 
 XXXII. i-. 
 
ADMISSIONS. 439 
 
 may be entitled to, without waiting for the determina- 
 tion of any other question between the parties; and 
 the Court or a Judge may upon such application make 
 such order or give such judgment as the Court or Judge 
 may think just." It is to be observed that the words 
 " on the pleading or otherwise " are in addition to the 
 rule contained in the previous order. Under this rule 
 orders have been made for foreclosure: Rutter v. Tre- Foreclosure. 
 gent (12 Ch. D. 758); in partition actions: Gilbert v. Partition. 
 Smith (2 Ch. Div. 686), Burnell v. Burnell (11 Ch. D. 
 213); in partnership actions: Thorp v. Holdsworth (3 
 Ch. D. 637). 
 
 In Dunn v. Campbell (27 Ch. D. 254) (stated in the Partnership 
 notes to Hampden v. Wallis, 27 Ch. D. 251) the de- action. 
 fendant in a partnership action had to his account fur- 
 nished before action, made himself out a creditor for 
 £6000 by crediting himself with £16,000 found due to 
 him by arbitration. Jessel, M.E., holding that the ar- 
 bitration was ultra vires, deducted the £16,000 from 
 the account and ordered the defendant to bring into 
 Court the balance so turned against him. 
 
 In Hampden v. Wallis (27 Ch. D. 251) a motion was 
 made to compel a trustee to pay into Court to the credit 
 of the action a sum of money and also to deposit in 
 Court certain bonds. There was a recital in the settle- 
 ment which the defendant had executed, that the bonds 
 had been transferred into the name of the defendant 
 and his co-trustee, and this was supplemented by an 
 affidavit shewing that the *j{ co-trustee had not accept- [ -fa 298] 
 ed the trusts of the settlement, and that the defendant 
 was sole trustee. There was also a letter written be- 
 fore action in which the defendant distinctly admitted 
 that he had received the money, and a further letter, 
 written after action, which the Court regarded as 
 amounting to an additional admission. 4 Further cir- 
 cumstances in the case were that the defendant's de- 
 fence had been struck out, and that an affidavit which 
 he had made could not be read as he had not attended 
 for examination when ordered to do so. The Court 
 held that in all these circumstances there was a suffi- 
 cient admission, and ordered the money to be paid into 
 Court. 
 
 The history of the successive advances which have 
 
 4 Phillips v. Middlesex. 127 Mass. 262; Whiton v. Snyder, 88 
 N. Y. 299; but if the admissions were made before his appoint- 
 ment as trustee they would not be competent as admissions. 
 Brooks v. Gross, 61 Me. 307; Church v. Howard, 79 N. Y. 415; 
 Heywood v. Heywood, 10 Allen, 105. 
 
440 ADMISSIONS. 
 
 History of been made by the Court in ordering payment of money 
 the into Court is told in Hampden v. Wallis (ubi supra). 
 
 practice. rjijje qJ^ Chancery practice was not to order money into 
 
 Court unless an admission was to be found by the an- 
 swer. This practice was modified, and admissions in 
 the proceedings were hel :! sufficient. The effect of the 
 decision in London Syndicate v. Lord (ubi supra) was 
 that for the purpose of founding an order for payment 
 of money into Court, one mode of admission is as good 
 as another, and that if the defendant does not answer 
 an affidavit made against him or appear, silence in his 
 case will be taken as consent, and an order will be made 
 against him. 
 
 In Phillips v. Homfray (W. N. 1884, p. 171), which 
 was an action for trespass and for wrongfully taking 
 coal from under the land of the plaintiffs, inquiries had 
 been directed, and in the answer of the defendants there 
 were admissions that a certain quantity of coal had been 
 gotten, and that the marked value at the pit mouth was 
 a certain sum, but there were no admissions as to de- 
 ductions,^ arges,&c. The plaintiffs took out a summons 
 asking that the amount calculated to be due upon the ad- 
 missions should be ordered to be paid into Court. The 
 Court refused to make the order, and dismissed the 
 summons with costs. 
 
 In Porrett v. White (31 Ch. Div. 52), White, who 
 was one of the trustees of a settlement, wrote letters to 
 Porrett, his co-trustee, admitting that he had received 
 part of the trust fund and invested it in an improper 
 manner. Porrett commenced an action for the admin- 
 istration of the trust, and after the 'defendant had ap- 
 peared, took out a summons to have the money paid 
 into Court, which he supported by an affidavit stating 
 the facts and making exhibits of the letters which had 
 passed between them. The defendant did not answer 
 the affidavit or adduce any evidence. .The Court of 
 Appeal, in delivering judgment in the plaintiff's fa- 
 vour, said that "whatever doubt there might have been 
 if the case depended on the letters alone, the fact that 
 the affidavit has not been answered by the defendant 
 brings it within the decision of the late Master of the 
 Rolls in Freeman \.-Cox. His lordship there said that 
 he would make a precedent, and it is one which, in my 
 opinion, we shall do right in following." An opinion 
 was intimated in this case that the new words u or 
 otherwise " in Order xxxii. r. 6 (supra) were wide 
 enough to include the admissions .contained in the let- 
 ters written before action brought. 
 
(441) 
 
 + Scandal. [*299] 
 
 CHRISTIE v. CHRISTIE. 
 
 (L. R. 8 Ch. 499.) 
 
 Charges of an offensive or injurious nature Principle. 
 will be expunged as scandalous unless they 
 would be admissible as evidence to shew the 
 truth of any allegation material to the relief 
 sought. 1 
 
 The plaintiffs, who constituted the well-known summary of 
 firm of Christie, Manson & Woods, auctioneers, fact s. 
 sought to restrain the defendants, W. H. Christie 
 and C. J. Christie, from issuing a prospectus of a 
 company to be formed for the purpose of acquiring, 
 working, and carrying on the well-known business 
 of "Christie & Christie," and their pleadings con- 
 tained allegations that one of the defendants had 
 been adjudicated bankrupt, and committed for trial 
 on a charge of fraud, and other statements of an 
 offensive character. The Court of Appeal held that 
 the allegations must be expunged as scandalous 
 with costs as between solicitor and client. 2 
 
 The reasons for the decision in this case were thus 
 given in the judgment of the Court. " If, on the one 
 hand," said Lord Selborne, " it is important and nec- 
 essary to adhere to the rule that everything relevant to 
 the issue between the parties must be admitted to be 
 averred, however it may bear on the character of the 
 
 1 The Court and jury, and not the witnesses are the proper 
 persons to construe the words. Olmstead v. Miller, 1 Wendell, 
 510. The Court possesses the power to strike out scandalous 
 matter from the proceedings. Strauss v. Meyer, 48 111. 385 ; 
 Downing v. Marshall, 37 N. Y. 382; King is. Sea. Ins. Co., 26 
 Wendell, 62. 
 
 2 Where there is a preservation of a right the policy of the 
 law controls the individual right of redress. See Townsend on 
 Slander and Libel, 384. 
 
442 SCANDAL. 
 
 parties, it is no less important to keep scandal off the 
 record. The sole question in such a case is whether 
 the matter alleged to be scandalous has a tendency — 
 or in other words, would be admissible in evidence 
 — to shew the truth of any allegation in the bill that is 
 material with reference to the relief that is prayed. It 
 is argued that it may tend to prove misrepresentation 
 in the prospectus. If the meaning of that argument is 
 that because a man committed a criminal offence two 
 years ago he is to be presumed likely to commit a fraud 
 now, the answer is that our law does not admit of any 
 [-^■300] such mode of proof." "Our law," -fc added Mellish, 
 L. J., "'does not allow you to prove that a man has a 
 bad character for the purpose of shewing that because 
 he has a bad character it is probable he will have com- 
 mitted a certain crime." 
 
 In Atwool v. Ferrier (14 W. E. 1014) a bill filed for 
 the purpose of winding up a partnership which had 
 been terminated eight years before, and obtaining ac- 
 counts, contained a statement that the defendant had 
 made fraudulent misrepresent itions as to the value and 
 profits of the business with the object of inducing the 
 plaintiff to enter into partnership. Lord Hatherley, 
 then Wood, V.C., said that the serious charge of fraud 
 in the passage to which objection was taken was a lit- 
 tle disguised by the way in which it was expressed, but 
 the plaintiff, willing to wound, but yet afraid to strike, 
 had on this occasion struck sufficiently for the Court to 
 interpose. The charge, he said, was wholly irrelevant, 
 as the plaintiff had got rid of the partnership more than 
 eight years before, and was only asking for an account. 
 He accordingly ordered the obnoxious allegation to be 
 expunged. 
 Definition of The cases on the subject will be found collected in 
 scandal. Darnell's Chancery Practice, p. 386, where the follow- 
 
 ing definition of scandal taken principally from Wyatt's 
 P..E. p. 383, is given. "Scandal consists in the allega- 
 tion of anything which is unbecoming the dignity of 
 the Court to hear, or is contrary to good manners, or 
 which charges some persons with a crime not necessary 
 to be shewn in the cause, to which may be added 
 that any unnecessary allegation bearing cruelly upon 
 the moral character of an individual is also scandalous." 
 On the present occasion we need only mention the prin- 
 cipal cases in which the subject of scandal has been dis- 
 cussed in the Courts in modern times. 
 Scandalous In Gracknally. Janson (11 Ch. D. 13) the question 
 
 matter arose whether scandalous matter, reflecting on a person 
 
SCANDAL. 443 
 
 not a party to the action, could be struck out ou the ap- affecting a 
 plication of the person affected by it. It was urmeces- stranger to 
 sary in the present case to determine the question, as the action - 
 "the scandalous matter was so small that it was consid- 
 ered undesirable to put the parties to the inconvenience 
 and expense of picking it out. On the general ques- 
 tion, however, Fry, J., observed, "I do not think that 
 the arm of the Court is so much shortened as that. I 
 think that when the attention of the Court is called to 
 scandalous matter, be it by a 'party to the action who is 
 not injured, or by the proper motion of the Court, or 
 by a stranger, the arm of the Court is long enough to 
 direct that the person who has defiled its records by 
 scandalous matter shall pay the costs of it." (See sim- 
 ilar or stronger observations in Coffin v. Cooper (6 Vesey, 
 514). 
 
 In Coyle v. Cumming (40 L. T. (N.S.) 455) a married 
 "woman brought an action by her next friend against 
 her husband to have their marriage settlement rectified 
 so as to accord with an alleged ante-nuptial agreement, 
 and for an injunction to restrain him from interfering 
 •with her property or molesting her. The statement of 
 claim alleged that the wife having been deserted by her 
 husband had refused to return to him, "having heard, 
 as the fact is, that a verdict was -fa obtained against [ ^ 301] 
 him for criminal assault." The Court ordered the alle- 
 gation to be expunged. 
 
 It is a long-established rule that nothing which is 
 relevant can be scandalous : Lord St. John v. Lady St. 
 John (11 Vesey, 539). This principle was applied in 
 Millington v. Loving (6 Q. B. Div. 190), where the 
 Court of Appeal said that the mere fact that the plead- 
 ings stated something scandalous did not make them 
 scandalous within the meaning of the rule. 
 
 In Fisher v. Owen (8 Ch. Div. 645) the question was 
 -whether interrogatories which tended to incriminate the 
 ■defendant must be struck out as " scandalous, irrele- 
 vant and not put bond fide for the purposes of the 
 action." It -was held by the Court of Appeal that the 
 interrogatories were relevant to the matter in issue, 
 and therefore were not scandalous, and could not be 
 struck out, and that the remedy of the defendant was 
 to decline to answer, on the ground that his answer 
 might tend to incriminate him. 
 
 " If the defendant," the Court said (p. 651), " were 
 a witness in the box you could not prevent the plain- 
 tiff putting the question, though the defendant might 
 decline to answer, and thereby probably subject himself 
 
444 SCANDAL. 
 
 or herself to some disadvantage before the tribunal, 
 whether composed of judge or judge and jury ; and I 
 I do not see what authority, we have to prevent the 
 plaintiff from availing himself of this mode of enquiry 
 of the defendant without calling the defendant as a 
 witness." 
 
 Costs. The present rule contains a new provision expressly 
 
 enabling the Court to order the costs of the applica- 
 tion to be paid as between solicitor and client. This 
 was the usual practice previously. The reasons for the 
 rule will be found discussed in the leading case at p. 
 507, where it is stated that the principle appears to be 
 that the offending party must pay to the other parties 
 the whole expense to which they have been put by his 
 introduction of the libellous matter. 
 
 In Coyle v. Gumming (ubi supra) the costs as between 
 solicitor and client were ordered to be paid by the next 
 friend. 
 
 Scandalous In the recent case of In re Miller and Miller (33 W. 
 
 matter in a R. 210) it was held that 'the Court had jurisdiction to 
 expunge scandalous matter contained in a bill of costs, but 
 as the solicitors had written to say that the scandalous 
 matter had been inserted by mistake, &c, and tendered 
 an apology, only party and party costs were ordered 
 to be paid. The precedent which was followed in this 
 was the case of Erskine v. Garthshore (18 Vesey, 114 , 
 decided by Lord Eldon, with reference to scandalous 
 allegations contained in a statement of facts carried in 
 1 before a master (corresponding to a statement brought 
 before a chief clerk at the present day), where the prin- 
 ciple was laid down " that there was no one proceeding 
 before the Court which if made the vehicle of scandal 
 and impertinence the Court would not examine with tb.6 
 view to reform it." 
 
 bill of costs. 
 
(445) 
 
 + Amendment. [ -^ 302] 
 
 TTLDESLEY v. HARPER. 
 (10 Ch. Div. 393.) 
 
 Leave to amend will generally he given unless Principle. 
 the Court is satisfied that the party applying is 
 acting maid tide, or that by his blunder he has 
 done some injury to the other side which cannot 
 be compensated by costs or otherwise. 1 
 
 The statement of claim contained an allegation Summary of 
 that the donee of a power had received a certain acts ' 
 sum as " a bonus, in fact a bribe," to induce him to 
 grant a lease. The defence denied the receipt of 
 that particular sum, but contained no general de- 
 nial. The Court of first instance treated the denial 
 as evasive, refused leave to amend, and at once 
 gave judgment for the plaintiff. The Court of Ap- 
 peal held that leave to amend ought to have been 
 given. 2 
 
 In this case the judge of first instance had held the 
 defendant most strictly to his pleading, and treated the 
 fact that he had not denied as equivalent to an admis- 
 sion. The Court- of Appeal, in reversing this decision, 
 explained the principle on which the Court proceeds in 
 allowing amendments as follows : — " It is important Principle on 
 that the rules of the Court should be enforced, but this which 
 may be done at too great a price. A party should be ? m endment 
 fined for his mistake, but the fine should be measured 
 by the loss to the other side, and not by the importance 
 
 1 Amendments may occur during the progress of a case, before 
 it is at issue, or after an issue has been joined, but before judg- 
 ment has been entered upon a verdict ; but amendments are al- 
 ways limited by due consideration of the right of the opposite 
 party. Stephen on Pleading, 110, and 2 Tidd's Practice (8th 
 «d.), 753. 
 
 9 Amendments are matters of right and a refusal to allow them 
 are good grounds for reversal on writ of error ; but the power 
 does not extend to defects in substance. See 1 Paine, 486. 2 
 Archbold's Practice, 230, 231. 
 
446 
 
 AMENDMENT. 
 
 [•303] 
 
 Amendment 
 of special 
 case. 
 
 Plaintiff 
 ordered to 
 amend. 
 
 of the stake between the parties. The object of these 
 rules is to obtain a correct issue between the parties, 
 and when an error has been made it is not intended 
 that the party making the mistake should be mulcted 
 in the loss of the trial." 
 
 In Attorney- General v. Corporation of Birmingham 
 15 Ch. Div. 423), a decree had been made granting a 
 perpetual" injunction, but suspended for five years, 
 against the Corporation of Birmingham as the sani- 
 tary authority. At the end of the five years the plain- 
 tiffs desired to enforce the injunction, but meanwhile a 
 District Board had succeeded to the rights and duties 
 of the Corporation of Birmingham. The -j^- Court of 
 Appeal decided that the action could not be amended, 
 and that the only mode to enforce a judgment against 
 persons who had subsequently obtained a title was to 
 commence a new action. 3 
 
 In In re Taylor's Estate, Tomlin v. Under hay (22 
 Ch. Div. 495), the Court of Appeal held .that a special 
 case could not be amended after a decision had been 
 given upon it. It was here laid down that the proper 
 course where a special case has been stated in an action 
 and a decision given upon it under a mistake of facts, 
 but no subsequent order had been made carrying the 
 decision into effect, is for the Court to disregard it, 
 direct the action to go to trial, and then order inquiries 
 to ascertain the real facts. 
 
 In Harris v. Jenkins (22 Ch. D. 481) the plaintiff 
 claimed a declaration that he was entitled to a private 
 right of way and for an injunction against obstruction. 
 The Court held that the defendant ought to know by 
 what title the plaintiff claimed, whether by grant or 
 prescriptive user, or otherwise he might be seriously 
 embarrassed when he came to trial. " I think also," 
 said Fry, J., "that the plaintiff ought to shew with 
 reasonable precision and exactitude the termini of the 
 right of way and the course which it takes. It may 
 be sufficient to state the names of the closes of land 
 through which it passes, or to refer to their numbers 
 in the tithes commutation map of the parish." The 
 plaintiff was accordingly ordered to amend his state- 
 ment of claim. 4 
 
 In Hipgrave v. Case (28 Ch. Div. 356) the plaintiff 
 claimed specific performance of a contract to sell the 
 
 3 Stephen on Pleading, 165, 3 Blackstone's Com. 407. 
 
 4 A sheriff's omission to sign his return to a writ may be 
 amended. Dewar v. Spence, 2 Wharton, 211; also Weidel v. 
 Roseberry, 13 S. & R. 178. 
 
AMENDMENT. 447 
 
 lease, stock-in-trade, fixtures and goodwill of a busi- 
 ness, and alleged that he was willing to perform his 
 share of the contract, but that the defendant refused to 
 do so. He also claimed in the alternative £100 as 
 liquidated damages. The defendant alleged false rep- 
 resentation on the part of the plaintiff, and denied that 
 the plaintiff was able and willing to perform the con- 
 tract. After the close of the pleadings the plaintiff 
 gave notice that unless the defendant completed the 
 purchase within a week, he would re-sell the businees, 
 which he accordingly did. The Court of Appeal de- 
 cided that as there had been no amendment of the 
 pleadings (which at that stage of the action ought not 
 to be allowed) the plaintiff could not maintain his al- 
 ternative claim for damages. 5 The Lord Chancellor, in 
 delivering judgment, after pointing out that the plain- 
 tiff ought to have amended when he did the act which 
 rendered specific performance impossible, or at all 
 events at the original hearing of the action, continued: 
 " I cannot regard this as a merely technical matter. 
 It appears to me to be a matter of substance. The de- 
 fendant comes to the trial to meet the case set up by 
 the plaintiff upon the record, viz., a case entitling the 
 plaintiff to specific performance or to damages in sub- 
 stitution for performance. I think we are regarding 
 the substance of the case in holding the plaintiff bound 
 by the form of the claim which he has deliberately 
 elected to make, and in not transforming his claim into 
 a different claim, and the pleadings into different 
 pleadings, at this stage of the proceedings. For these 
 reasons I do not think we ought to give the relief that 
 is now asked for." 
 
 *^- The leading case of Tildesley v. Harper (ubi [ -^ 304] 
 supra) was cited with approval by the Court of Appeal 
 in Steward v North Metropolitan Tramivays Company 
 (16 Q. B. Div. 556), where, upholding the decision in 
 16 Q. B. D. 178, they held that the defendants ought 
 not to be allowed to amend their defence, because the 
 plaintiff could not be placed in the same position as if 
 the defendants had pleaded correctly in the first in- 
 stance. Tn that case the rule of the Court was thus 
 stated: "The rule of conduct of the Court in such a Rule of the 
 case is that however negligent or careless may have Court - 
 been the first omission, and however late the proposed 
 amendment, the amendment should be allowed if it can 
 
 5 New causes of action cannot be introduced by an amend- 
 ment. Tatham r. Rawey, 82 Pa. St. 130. 
 
448 SERVICE OUT OP JURISDICTION. 
 
 be made without injustice to the other side. 6 There is 
 no injustice if the other side can be compensated by 
 costs, but if the amendment will put them into such a 
 position that they must be. injured, it ought not to be 
 made whenever you can put the parties in the same 
 position for the purposes of justice that they were in at 
 the time when the slip was made." 7 
 
 Service out of Jurisdiction.'- 
 
 In re EAGER. EAGER v. JOHNSTONE. 
 (22 Ch. Div. 86.) 
 
 Principle. Since the Judicature Acts the Court has no 
 
 power to give leave for service out of the juris- 
 diction except in the cases specified in R. S. 
 C. 1883, 0. XL 
 
 Summary of ^n action was brought for the administration of 
 the estate of E. R. Eager. The whole estate was 
 situated in Ceylon, and an application was made 
 for leave to serve the writ of summons on the sole 
 defendant, a British subject resident in Scotland, 
 who was the executor and trustee of Eager's will. 
 The defendant was charged with breach of trust 
 and his removal sought. The Court of Appeal re- 
 fused the application. 
 
 In this case Jessel, M.E., delivered judgment as fol- 
 lows: "The new rule is exhaustive: the old practice is 
 + 3051 no l° n g er applicable. This -^ case is admitted not to 
 be within the rule, therefore we cannot order service. 
 The application must be refused." 
 
 Order xi. of the Rules of the Supreme Court, which 
 
 6 Where a jury in announcing the verdict makes a mistake as 
 to the proper amount of damages assessed, the mistake may be 
 corrected before the jury is discharged, even though the Court 
 has recorded the erroneous amount. Pepper v. City of Phila., 
 4 Amerman (Pa.), 97. 
 
 7 A scire facias to revive and continue a lien of judgment can- 
 not be amended to one of debt or assumpsit for this would be 
 changing not only the form but the cause of action. Murphy v. 
 Crawford (to use), 114 Pa. St. 496. 
 
SERVICE OUT OP JURISDICTION. 449 
 
 is a statutory reversal of the old practice as laid down e. S. C. 
 in the old leading case of Drummoud v. Drummond (L. 1883, O. xi. 
 E. 2 Ch. 32), where the former authorities are reviewed, 
 enumerates the following seven cases in which service Cases where 
 out of the jurisdiction of a writ of summons or notice service out of 
 of a writ of»summons may be allowed by the Court or jurisdiction 
 
 aJud g e - aTwed. 
 
 (a) The whole subject matter of the action is land 
 
 situate within the jurisdiction (with or without rents 
 or profits) or 
 
 (6) Any act, deed, will, contract, obligation or lia- 
 bility affecting land or hereditaments situate within the 
 jurisdiction is sought to be construed, rectified, set 
 aside, or enforced in the action, or 
 
 (c) Any relief is sought against any person domi- 
 ciled or ordinarily resident within the jurisdiction, or 
 
 (d) The action is for the administration of the per- 
 sonal estate of any deceased person who at the time of 
 his death was domiciled within the jurisdiction, or for 
 the execution (as to property situate within the juris- 
 diction) of the trusts of any written instrument of 
 which the person to be served is a trustee which ought 
 to be executed according to the law of England, or 
 
 (e) The action is founded on any breach or alleged 
 breach within the jurisdiction of any contract wherever 
 made, which according to the terms thereof ought to 
 be performed within the jurisdiction, unless the de- 
 fendant is domiciled or ordinarily resident in Scotland 
 or Ireland, or 
 
 ( / ) Any injunction is sought as to anything to be 
 done within the jurisdiction, or any nuisance within 
 the jurisdiction is sought to be prevented or removed, 
 whether damages are or are not also sought in respect 
 thereof, or 
 
 (g) Any person out of the jurisdiction is a necessary 
 or proper party to an action properly brought against 
 some other person duly served within the jurisdiction. 
 
 In SocUU G6n6rale de Paris v. Dreyfus Brothers (29 
 Ch. D. 238), where, under the circumstances, the Court 
 allowed service of a writ for an injunction, but reserved 
 the question of costs, the judge dwelt with much em- 
 phasis on the great inconvenience and annoyance of a 
 foreigner being brought to contest his rights in this 
 country ; and expressed a strong opinion that the Court 
 ought to be exceedingly careful before it allowed ser- 
 vice out of the jurisdiction, and pointed out that the 
 course of legislation indicated that the Legislature also 
 had been of that opinion. According to the old rule 
 
 29 MODERN EQUITY. 
 
450 
 
 SERVICE OUT OF JURISDICTION. 
 
 [*306] 
 
 Statement 
 of the law 
 on the 
 subject. 
 
 Service out 
 of jurisdic- 
 tion not 
 allowed. 
 
 given under the Orders of 1845," the Court had an ab- 
 solute power to order service out of the jurisdiction. 
 This power was contracted in 1875, and still further 
 contracted by the present Rules of 1883. In this case 
 it was laid down that even in the cases enumerated in 
 the Order, the Court has got a discretion as* to whether 
 the case is a reasonable one, and whether it should al- 
 low service out of the jurisdiction, and that it will go 
 into -^ evidence to ascertain the merits of the case. 
 And see under the Rules of 1875, Fowler v. Barstow 
 (20 Ch. Div. 240), overruling on this point The Great 
 Australian Gold Mining Co. v. Martin (5 Ch. D. i ). 
 
 The authorities on this subject are most carefully 
 considered in In re Busfield, Whaley v. Busfield (32 
 Ch. Div. 123), where the Court decided that there was 
 no jurisdiction to authorize service of an originating 
 summons out of the jurisdiction. 
 
 In this case the Court affirmed the principle laid 
 down in the leading cise that Order xi. was intended 
 to form a complete code upon the subject, and to shew 
 when such service could and when it could not be ef- 
 fected, and stated the law as follows: — " Service out of 
 the jurisdiction is an interference with the ordinary 
 course of the law, for generally Courts exercise juris- 
 diction only over persons who are within the territorial 
 limits of their jurisdiction. If an Act of Parliament 
 gives them jurisdiction over British subjects wherever 
 they may be, such jurisdiction is valid, but apart from 
 statute a Court has no power to exercise jurisdiction 
 over any one beyond its limits." 
 
 Service out of the jurisdiction may also be allowed 
 of amended copies of writs of summons, or notices in 
 lieu of service thereof, upon defendants added or sub- 
 stituted (Order xvi. r. 13) and also of the following doc- 
 uments: 
 
 Third party notices under Order xvi. r. 48: Swansea 
 Shipping Co. v. Duncan (1 Q. B. D. 644): Counter- 
 claims, In re Luckie, Badham v. Nixon, W. N. 1880, p. 12. 
 
 Service out of the jurisdiction cannot be allowed of 
 the following documents: 
 
 An originating summons: In re Busfield, Whaley v. 
 Busfield (ubi supra). 
 
 A summons or order to tax a solicitor's costs: lie 
 Maughan, Ex parte Brandon (22 W. R. 748). 
 
 A summons for taxation oE costs, Ex parte Brandon 
 (34 W. R. 352). 
 
 Orders made during the winding-up of a company, 
 In re Anglo- African Steamship Co. (32 Ch. Div. 348). 
 
BE MINIMIS NON CURAT LEX. 451 
 
 Petitions under the Trustees Relief Act, 1847 (10 & 
 11 Vict. c. 96),- and see Piggott on Service out of the 
 Jurisdiction, (2nd ed. pp. 17 and 18). 
 
 It was held in In re Nathan, Newman & Co. (35 Ch. 
 Div. 1), (distinguishing In re Anglo- African Steamship 
 Co., ubi supra.), that a notice under the General Order 
 of Nov. 11, 1862, r. 30, of an appointment to settle the 
 list of contributories of a company, may be served out 
 of the jurisdiction in manner provided by r. 60. 
 
 It having become necessary in the opinion of the au- Time for 
 thorities, " having regard to the increased facilities appearance, 
 given by the General Post Office, consequent upon the 
 great extension of railway and steamboat communica- 
 tion within the last thirty or forty years," to revise the . 
 table of times for appearance after service out of the 
 jurisdiction, an order was issued for that purpose dated 
 15th July, 1886. The time allowed for entering ap- 
 pearance is generally double the ordinary time it takes 
 to search the place where the defendant probably may 
 be found, and -j{ to this there is in each case added the [ -^ 307] 
 eight days allowed for appearance when service is within 
 the jurisdiction, with a slight addition when the place 
 is difficult of access; and the order proceeds to say that 
 it will also be generally advisable to allow a certain 
 area for service. 
 
 De minimis non curat lex. 
 
 WESTBURY-ON-SEVERN RURAL SANITARY 
 AUTHORITY v. MEREDITH. 
 
 (30 Ch. Div. 387.) 
 
 When the the value of the subject-matter is p r i nc i p i e . 
 under £10, an action cannot, in the absence of 
 special circumstances, be maintained in the 
 Sigh Court of Justice in respect of any matter 
 which before the Judicature Act could only 
 have been dealt with by the Court of Chancery. 
 
 The plaintiffs, the Rural Sanitary Authority of Summary of 
 Westbury-on-Severn, had expended a sum of £6 facts - 
 
 1 Courts of justice do not in general take trifling and immate- 
 rial matters into account. Broom's Legal Maxims, 1 42, and for 
 application, of the maxim see Davis v. Sabita, 13 P. F. Sm. 90; 
 Carr v. McGovern, 66 Pa. St. 457. 
 
452 DE MINIMIS NON CURAT LEX. 
 
 19s. Id. on the execution of drainage works upon 
 premises within their district belonging to Mere- 
 dith, who was liable under the Public Health Act, 
 1875, to repay the amount expended with interest. 
 The plaintiffs claimed a declaration that the £6 19s. 
 Id. was a charge upon the premises, and that if nec- 
 essary it might be enforced by a sale ; and asked 
 for a receiver. The Judge dismissed the action, and 
 the Court of Appeal confirmed his decision. 
 
 The plaintiffs in this case found themselves in a 
 strange position. The action sought to enforce a 
 charge, and it therefore could not, before the Judicature 
 Act, have been brought in a common law court. Nor 
 could it under the former practice have been maintain- 
 ed in the Court of Chancery, for the old rule of that 
 Court (Eule 1 of Order ix. Consolidated Orders, 1860) 
 was " that every suit, the subject matter of which is 
 under the value of £10, shall be dismissed, unless it be 
 instituted to establish a general right, or unless there 
 [■^•308] .shall be some other -^ special circumstance, which, in 
 the opinion of the Court, shall make it reasonable that 
 such suit should be retained." The Court of Appeal 
 were unable to find any authority for the proposition 
 that the jurisdiction had been enlarged so as to enable 
 the High Court to give an equitable remedy in aid of 
 a common law demand, and as they held that the Judi- 
 cature Act had not conferred any new right of relief, 
 but had only given to the High Court the jurisdictions 
 which the Court of Chancery and the Court of Com- 
 mon Law had before, the plaintiffs were without rem- 
 edy so far as the High Court was concerned. To crown 
 all, the plaintiffs in the present case, who might be- 
 yond question have enforced their remedy in a County 
 Court, had allowed the six months within which pro- 
 ceedings must then be taken to go by, and the Court of 
 Appeal, while deciding that they could do nothing for 
 the plaintiffs on the application before them, declined 
 to express any opinion as to whether they had any pos- 
 sible means of obtaining relief. 
 
 The question whether the smallness of the amount 
 involved should preclude a plaintiff from relief in the 
 Court of Chancery has been discussed in several cases 
 in ancient and modern times. 
 
 In the very old case of Parrot et alii plaintants. Paw- 
 
DE MINIMIS NON CURAT LEX. 453 
 
 let defendant,. Carey's Reports 103 (21 Eliz.), the suit 
 being for the benefit of the poor of a parish, was " re- 
 tained" though under the value of 40s. per annum. 
 
 In Cocks v. Foley (1 Vernon, 359 (1865) ) a bill 
 was allowed to lie in equity (there being difficulties in 
 the case which precluded the plaintiff from relief at 
 lawj for quit rents of the value of three and two shil- 
 lings respectively, which, it was alleged, had been con- 
 stantly paid time out of mind. 
 
 In Beckitt v. Bilbrough (8 Hare, 188) the sum re- 
 covered was only £9, and it was contended that the 
 plaintiff ought not to be allowed his costs. It was 
 held, however, that as at the time when the plaintiff 
 commenced his action the state' of his information was 
 such that he was justified in believing he might possi- 
 bly recover over £20, the defendant who alone was 
 bound to give him information, had refused to give any, 
 and the plaintiff had at each stage offered to abandon 
 the suit on reasonable terms, the cost must follow the 
 result of the suit. 
 
 To come to modern times, in Seaton v. Grant (L. R. 
 2 Ch. 459) a bill was filed by the plaintiff, who was the 
 holder of five shares which he had purchased for the 
 purpose of qualifying himself for his present litigation 
 (on behalf of himself and all the other shareholders in 
 a company except the defendants), impeaching certain 
 transactions on the ground of fraud. The defendant 
 moved to have the bill taken off the file, or to have all 
 further proceedings stayed, and one of the objections 
 advanced was that the plaintiff's interest was merely 
 nominal, and that if the whole amount claimed were 
 recovered and divided among the shareholders repre- 
 sented by the plaintiff, his share would be about forty 
 shillings. The Court of Appeal overruled this objec- 
 tion, saying that they were not prepared to apply the 
 ordinary -Jf rule as to less than £10 value to such a case, [ -^ 309]- 
 and that the aggregate interest of all the shareholders 
 was amply sufficient to sustain the suit. 
 
 In In re National Assurance and Investment Associa- 
 tion, In re Cross (L. R. 7 Ch. 223), a solicitor had car 
 ried a claim in a winding-up on behalf of a creditor to 
 a successful result, and he applied to the Court for a 
 lien for the amount of his costs, £1 15s., on the divi- 
 dend payable to his client. The judge of first instance 
 refused the application, and the matter came before the 
 Court of Appeal, where it was urged that the case was 
 a "representative" one which would govern some hun- 
 dreds of others, and that if the smallness of the amount 
 
454 
 
 PRACTICE SINCE THE JUDICATURE ACTS. 
 
 < were made an objection to a solicitor enforcing bis lien, 
 it would be an encouragement to solicitors to make out 
 large bills of cost. James, L. J., bowever, said tbat, un- 
 less so ordered by tbe House of Lords or some other 
 competent Court, be would not allow an appeal for the 
 sum of £1 15s., and he dismissed the appeal with costs. 
 See generally as to actions where the amount involved 
 is small, Broome's Legal Maxims under the heading, 
 "De minimis non curat lex." 
 
 Practice since the Judicature Acts. 
 
 NEWBIGGIN-BY-THE-SEA GAS COMPANY *. 
 ARMSTRONG. 
 
 (13 Ch. D. 310.) 
 
 NURSE v. DTJRNFORD. 
 
 (13 CH. D. 764.) 
 
 Principle. Whei e no rule of practice is laid down by the 
 
 orders under the Judicature Acts., and there is 
 a variance between the former practice of the 
 Courts of Chancery and Common Law, that 
 practice which is considered by the Court to be 
 the better and more convenient, is to prevail. 
 
 Summary of 
 facts. 
 
 [•810] 
 
 In both these cases solicitors had commenced ac- 
 tions without the authority of the persons whose 
 names were employed as plaintiffs. The actions 
 were dismissed, and the solicitors, in accordance with 
 the practice which had *fa previously prevailed in 
 the Common Law Courts, were ordered to pay all 
 costs, the costs of the plaintiffs as between solicitor 
 and client, and the costs of the defendants as be- 
 tween party and party. 
 
 Unautho- ^he practice which had prevailed in. the Court of 
 
 rized use by Chancery with regard to cases where a solicitor had em- 
 solicitor of ployed the name of a person as plaintiff without his 
 authority, had been completely different from that which 
 was established with regard to similar cases in the Com- 
 
 rjame of a 
 plaintiff. 
 
PRACTICE SINCE THE JUDICATURE ACTS. 455 
 
 mon Law Courts. According to the established prae- Former 
 tice of the Court of Chancery (recognized by the Court common 
 of Appeal in Palmer v. Walesby (L.> R. 3 Ch. 732)) as j^ *" * 
 stated by Jessel, M.E., in the leading cases, the defend- pr^i^ 
 ant was left to get his costs from the person named as contrasted, 
 plaintiff, who had afterwards to get those costs over 
 from his solicitor. The result was that the nominal 
 plaintiff, who had never given any authority for the use 
 of his name, had to pay the defendant's costs, and might 
 be unable to recover them by reason of the insolvency 
 of his solicitor. The practice of the Common Law 
 Courts, on the other hand, was to serve the defendant 
 with notice of the application, and the solicitor had to 
 pay the costs of both the plaintiff and the defendant. 
 
 Jessel, M.R., after stating the former practice in the 
 old Court of Chancery, and contrasting the two differ- 
 ent practices, proceeded as follows : — " The question is, 
 which practice is now to be followed. Since the pas- 
 sing of the Judicature Act that must be left to the 
 Court to determine. By the 21st section of the Judica- 
 ture Act, 1875, it is enacted that in cases where no new 
 method of procedure is prescribed the old practice is to 
 prevail, but where there is a variance in the practice it 
 does not say which practice. I have no hesitation in c ommon 
 saying that I think the common law practice in this case Law practice 
 is founded in natural justice and ought to be followed adopted, 
 in the future." 
 
 Similar observations with regard to the more sensible 
 practice adopted by the Common Law Courts are con- 
 tained in the judgment in Nurse v. Durnford (13 Ch. 
 D. 764). In that case it appeared that the London 
 agents in question who were ordered to pay costs, had 
 insertedthe name of Walker, the plaintiff whose name> 
 had been employed without his authority, in the ordi- 
 nary course of business, acting on the instructions of his 
 co-executor, and assuming that a proper retainer had 
 been obtained by Nurse, the country solicitor, since de- 
 ceased, who had been joined as co-plaintiff. The Court 
 expressed an opinion that the London agents would 
 have a right of proof against the estate of Nurse for all 
 the costs which they would have to pay. 
 
 In In re Savage (15 Ch. D. 557), Jessel, M.R., though 
 under the circumstances he made no order in favour of 
 the applicants as to costs, stated the general rule to be 
 that a solictor who acted without authority should be 
 made to pay the costs. 
 
 if It was held in Wray v. Kemp (26 Ch. D. 169) that [ * 31 1] 
 a retainer to a country solicitor did not justify an action 
 
456 
 
 PRACTICE SINCE THE JUDICATURE ACTS. 
 
 Cases where 
 the "better 
 and more 
 convenient 
 practice' ' 
 has been 
 adopted. 
 
 in which the names of the London agents appeared as 
 principals and not as agents for the country solicitor. 
 The Court said that the usual practice where country- 
 solicitors had been retained of substituting the name of 
 the London agents for that of the country solicitors, 
 however reasonable as between the solicitors themselves, 
 did not make the London agents the solicitors of the 
 party, and pointed out, following the observation of 
 Kindersley, V. C, in Atkinson -v. Abbott (3 Drew. 251), 
 that a solicitor ought to see that he has his retainer 
 very carefully worded, especially when given on behalf 
 of an ignorant and uneducated person. 
 
 The principle of Nurse v. Durnford, In re Savage, 
 and Wray v. Kemp (ubi supra) was reluctantly followed 
 in In re Scholes and Sons (32 Ch. D. 245), where an ex- 
 tremely technical objection to an order for taxation of 
 costs was allowed to prevail. A firm of London agents, 
 acting for country solicitors duly authorized, obtained 
 an order for taxation of costs, but the names of the 
 London agents were endorsed on the petition for taxa- 
 tion as principals. The order for taxation was dis- 
 charged on the application of the client, but without 
 costs, Pearson, J., expressing regret that he could not 
 make the applicants pay costs. 
 
 The following are some of the principal cases in 
 which the Court has decided, in accordance with the 
 principle laid down in Newbiggin-bythe Sea Gas Com- 
 pany v. Armstrong, that a certain practice is to be adopt- 
 ed as the better and more convenient. 
 
 In Atherleyv. Harvey (2 Q. B. D. 524) it was held 
 that the Chancery practice against allowing criminat- 
 ing interrogatories to be put must be followed; but see 
 Fisher v. Owen (8 Ch. D. 654, and E. S. C. 1883, Order 
 xxxi , r. 6). 
 
 In InreRadcliffe (7 Ch. D. 733) the rule of equity 
 was allowed to prevail, that if an executor or adminis- 
 trator after the commencement of a creditor's action 
 and before judgment voluntarily pays any creditor in 
 full, the payment is good even though he may have 
 notice of the action before payment. 
 
 The old Chancery rule, that where a -party was in 
 contempt for not paying costs ordered to be paid, the 
 proceedings should be stayed, was upheld in In re 
 Youngs,Doggett v. Revitt (3 Ch. Div. 239) (notwithstand- 
 ing Morton v. Palmer (9 Q B. D. 89), where the Queen's 
 Bench Division declined under the circumstances to 
 proceed on that principle), and in InreNeal, Weston v. 
 Neal (31 Ch. D. 437), but it was laid down in In re 
 
PRACTICE SINCE THE JUDICATURE ACTS. 457 
 
 Wickham, Marony v. Taylor (35 Ch. Div. 272) that the 
 jurisdiction to stay proceedings does not depend on any 
 old practice of the Court of Chancery, bat is founded 
 and ought to be exercised on the principle and for the 
 purpose of preventing vexation and oppression ; and see 
 Randle v. Payne (23 Ch. D. 288), and Martin v. Earl 
 Beauchamp (25 Ch. Div. 12), where proceedings were 
 stayed for the same reason until payment of costs of 
 previous proceedings. 
 
 The practice of the Chancery Division in exercising 
 the jurisdiction ^ over solicitors under sect. 87 of the [ it 312] 
 Judicature Act, 1873, prevails, and the Court will not 
 grant a rule nisi: Re Gopp (32 W. R. 25). 
 
 In La Orange v. Mc Andrew (4 Q. B. D. 210) the rule 
 of equity was adopted, and the Divisional Court dis- 
 missed the action where the plaintiff had failed to com- 
 ply with an order requiring him to give security for 
 costs, without requiring the defendant to first abandon 
 the order for security. 
 
 In Grant v. Holland (3 C. P. D. 180) the Divisional 
 Court decided, notwithstanding an ingenious argument 
 founded on sect. 87 of the Judicature Act, 1873, that 
 the rule of equity should prevail, and that an order 
 made in an application to change the solicitor in a 
 pending action should not contain a provision for the 
 costs of the solicitor so removed. " The absence of the 
 mention of costs," said the Court, "in no way interferes 
 with the solicitor's lien upon any fund in Court, or 
 upon the papers in the Court " (to which may be added 
 that the solicitor might have in addition a charge upon 
 the property preserved by means of his services, as to 
 which see ante p. 193 et seq.). 
 
 In Thomas v. Palin (21 Ch. Div. 360) it was held, in 
 accordance with the common law practice, that it is no 
 longer necessary that a copy of an order which is serv- 
 ed should have the endorsement previously required by 
 the old Consolidated Order xxm. r. 10, stating the con- 
 sequences of failing to obey the order. The reason is 
 that while under the old practice an attachment could 
 be obtained as a matter of course, under the present 
 practice (E. S. C. 1883, O. xliv. 2) it cannot be issued 
 without leave and on notice. " Under the present prac- 
 tice," said the Court, " the party against whom the ap- 
 plication is made has notice, and if he comes to the 
 Court and gives an excuse for non-obedience to the 
 order the Court will listen to him. Every man served 
 with an order of the Court must know that it is not a 
 brutum fulmen, but will be enforced somehow and that 
 
458 
 
 JURISDICTION OF THE COURT OF APPEAL. 
 
 the Courts do not make orders which cannot be enforc 
 ed. Where an attachment is moved for, the party will 
 be heard if he has any reason to give why he should 
 not be attached." 
 
 In Harvey v. Croydon Union Rural Sanitary Author- 
 ity (26 Ch. Div. 249) the practice of the Queen's Bench 
 Division was adopted, viz. that where a consent to an 
 order is given by counsel with the authority of his client, 
 it cannot be arbitrarily withdrawn, though if there be 
 mistake, surprise, or any sufficient ground, an applica- 
 tion may be made to set it aside. See further as to 
 orders by consent, Attorney -General v. Tomline (7 Ch. 
 D. 388); Michel v. Mutch (34 W. R. 251). 
 
 The practice of the Common Law Division prevails 
 with regard to making a reference to arbitration under 
 an agreement, a rule of Court: Jones v. Jones (14 Ch. 
 D. 593) ; and see as to specifying the grounds of ob- 
 jection in a notice of motion to set aside an arbitrator's 
 award, Mercier v. Pepperell ( 19 Ch. D. 58).- 
 
 [*813] 
 
 ■jt Jurisdiction of the Court of Appeal. 
 
 Principle. 
 
 Summary of 
 facts. 
 
 FLOWER v. LLOYD. 
 (6 Ch. Div. 297.) 
 
 The Court of Appeal has now complete power 
 to rehear an action so as to substitute a proper 
 judgment or order for any judgment or order 
 which it deems to have been improperly made., 
 but it has no jurisdiction to rehear an appeal. 
 
 Judgment had been given by the Court of Appeal 
 dismissing an action for an infringement of a patent. 
 The plaintiff then applied for a rehearing of the ap- 
 peal with fresh evidence, on the ground that the de- 
 fendants had fraudulently concealed parts of their 
 process of manufacture from an expert who had 
 been sent down by the Court to inspect their works, 
 but the Court Appeal decided that they had no juris- 
 diction to rehear the appeal. 
 
JURISDICTION OF THE COURT OF APPEAL. 459 
 
 The judges of the Court of Appeal in deciding this 
 case proceeded on the principle that it was all-important 
 the Court of Appeal should itself set the example to 
 other bodies of obeying the law, and should not attempt 
 to enlarge its jurisdiction beyond that which Parlia- 
 ment has chosen to give it. "This Court," said Jessel, 
 M R, "has very large powers conferred upon it by the 
 Judicature Act with reference to the disposing of ap- 
 peals, but beyond that it has no jurisdiction. It is a j U( ij ea t ur e 
 Court of Appeal and nothing more." The 4th section Act, 1873, 
 of the Judicature Act, 1873, provides that the Supreme sect. 4. 
 Court "shall consist of two permanent divisions, one of 
 which, under the name of 'Her Majesty's High Court of P 
 
 Justice,' shall have and exercise original jurisdiction, 
 . . . and the other of which, under the name of 'Her 
 Majesty's Court of Appeal,' shall have and exercise ap- 
 pellate jurisdiction with such original jurisdiction as 
 may be incident to the determination of any appeal." 
 This section is to be read in connection with sect. 18 of &■ |- £*. 
 the same Act, and with Order lviii. conferring upon LVI jj ' 
 the Court very -^-sweeping powers in rehearing actions, r jl. 314] 
 of allowing amendments, admitting further evidence, 
 drawing inferences of fact, making such further or other 
 order as the case may require. The general effect of 
 the Act and rules on this subject may be summed up in 
 the following statement collected from the judgments 
 in the leading case. 
 
 The Appeal Court is not a part of the High Court. 
 Both are parts of the Supreme Court. The High Court 
 is one part, the Supreme Court another part. The 
 power of the Court of Appeal in rehearing actions is to 
 substitute a proper order for the order which they con- 
 sider to have been improperly made by the High Cour 1 ,. 
 Its original jurisdiction is limited to that which is 
 necessary for the determination of any appeal, and the 
 amendment, execution, and enforcement of any order 
 made on such appeal. 
 
 An appeal is in the nature of a rehearing, Laird v. An appeal 
 Briggs (16 Ch. D. 663), Mapleson v. Quitter (9 Q. B. is a rehear- 
 Div. 672) . The Court of Appeal has power not merely mg ' 
 to make any order which ought to have been made by 
 the Court below, but also to make such further order as 
 the case may require, i.e. to make such order or judg- 
 ment as ought to be made at the time when the appeal 
 comes before it. The Court of Appeal proceeded on 
 this principle in Quitter v. Mapleson (ubi supra) , which 
 affords a very striking illustration of the powers of the 
 Court in this respect. There the plaintiff obtained 
 
460 JURISDICTION OF THE COURT OF APPEAL. 
 
 judgment in July, 1881, to recover possession of Her 
 Majesty's Theatre, Hayrnarket, under a proviso of re- 
 entry for breach of a covenant to insure. The de- 
 fendant appealed next month. A stay of proceedings 
 had been granted and continued, so that the plaintiff 
 never obtained possession. On the 1st January, 1882, 
 the Conveyancing and Law of Property Act, 1881 (44 
 & 45 Vict. c. 41), came into operation. The appeal 
 came on for hearing afterwards, and the Court of Ap- 
 peal under sect. 14 of that Act granted relief against 
 the forfeiture. The rule, they said, was intended to 
 enable the Court of Appeal to do complete justice, and 
 if the law was altered, to make such order as the case 
 required, according to the law existing when the matter 
 came before them. 
 
 The same principle that an appeal is a rehearing is 
 also well illustrated by the case of Laird v. Briggs ( 16 
 Ch. D. 663). There at the trial the judge had refused 
 leave to amend. The Court of Appeal decided that 
 there was no necessity for a separate application to 
 them for leave, as the whole matter would be open on 
 the hearing of the appeal, when the Court could give 
 leave to amend (as it subsequently did (19 Ch. T>. 22)) 
 if it thought proper. 
 
 The practice of the Court with regard to appeals is 
 stated in a memorandum (1 Ch. Div. 41), but the only 
 portion of it material for the present purpose is that all 
 summonses which finally settled the rights of parties, 
 such as summonses under winding-up orders or in admin- 
 istration suits, are to be heard by the full Court of Ap- 
 peal. 
 Time for In Curtis v. Sheffield (21 Ch. Div. 1) an interesting 
 
 appealing. history is given of the great change which has been 
 made in latter days with regard to the time for ap- 
 pealing. (1) For along time there was no limit of 
 [-^•315] -^-time; (2) then the time was limited to twenty years 
 unless there were special grounds, (3) Then by the 
 General Order of 7th August, 1852, the time for appeal 
 was reduced to five years. (4) Finally, under the 
 present rules the limit of time is one year in the' ab- 
 sence of special circumstances. "Not only," Jessel, 
 M.R., continued, "has opinion varied as to the period 
 of appeal, but opinion has varied as to the grounds upon 
 which appeal should be allowed after time, and in that 
 respect also the rules have become more stringent." 
 This case was considered in Fussell v. Denuding (27 Ch. 
 D. 241), where it was held that in the absence of special 
 circumstances, ex. gr. collusion, fraud or irregularity, 
 
JURISDICTION OF THE COURT OF APPEAL. 461 
 
 an order to revive a suit or carry on proceedings therein 
 for the mere purpose of appealing against a decree 
 ought not to be made after the time now limited for an 
 appeal, viz. a year. 
 
 With regard to the time for appealing, Order lviii. E- S. C. 
 r. 15 (practically embodying the effect of previous de- 1883 > °- 
 cisions), provides that no appeal to the Court of Appeal Lvm - r - 15 - 
 from any interlocutory order, or from any order whether 
 final or interlocutory, in any matter not being an ac- 
 tion, shall, except by special leave of the Court of 
 Appeal, be brought after the expiration of twenty-one 
 days, and no other appeal shall, except by such leave, 
 be brought after the expiration of one year. The said 
 respective periods shall be calculated, in the case of an 
 appeal from an order in Chambers, from the time when 
 such order was pronounced, or when the appellant first 
 had notice thereof, and in all other cases, from the 
 time at which the judgment or order is signed, entered, 
 or otherwise perfected, or in the case of the refusal of 
 an application, from the date of such refusal. Such Security tor 
 deposit or other security for the costs to be occasioned costs of 
 by any appeal shall be made or given as may be di- appea • 
 rected under special circumstances by the Court of Ap- interlocu- 
 peal. As to what orders are interlocutory and what are tory and 
 final, see the cases collected in the Annual Practice. final orders - 
 
 It was held in In re Smith, Hooper v. Smith (26 Ch. 
 Div. 614), that where an application is refused, and the 
 judge adds special directions as to costs, that is to be 
 treated as a simple refusal, and the time for appealing 
 was from the date of refusal. 
 
 The order in the ordinary form for foreclosure judg- Foreclosure 
 ment is final, and the appeal can be heard even though judgment. 
 after the notice was served the foreclosure has been 
 made absolute: Smith v. Dairies (31 Ch. D. 595). An 
 order made on originating summons is an order made Originating 
 in an action, and is consequently appealable at any time summ0DS - 
 within a year. In re Fawsitt, Galland v. Burton (30 
 Ch. Div. 231 ). It was decided in Christopher v. Croll 
 (16 Q. B. Div. 66) that an appeal was "brought in 
 time" when notice of motion was served in the pre- 
 scribed period 
 
 An order made on a summons by a creditor in an ad- 
 ministration action stands in a somewhat singular and 
 anomalous position. It is interlocutory for the pur- 
 pose of determining the time within which an appeal 
 must be brought, but for all other purposes it is final. 
 In re Compton, Norton v. Compton (27 Ch. D. 392). 
 
 A judge's order is always subject to appeal unless it 
 
462 
 
 JURISDICTION OF THE COURT OP APPEAL. 
 
 [*316] 
 
 Evidence on 
 appeal. 
 
 Substituted 
 service of 
 notice of 
 appeal. 
 
 Extension of 
 time for 
 appealing. 
 
 Appeal 
 from judg- 
 ment by 
 default. 
 
 Security 
 for costs of 
 appeal. 
 
 is expressly -^f forbidden: Pollock v. Babbitts (21 Ch. 
 Div. 466), where an appeal was allowed from the order 
 of a judge settling the form of a conveyance. 
 
 An important point of practice with regard to the 
 admission of evidence on appeals was decided in Ex 
 parte Jacobscm, In re Pincoffs (22 Ch. Div. 312). 
 When a judge of first instance expresses his willing- 
 ness to decide in the defendant's or respondent's favour 
 without hearing his evidence, his counsel may either 
 accept the decision on these terms or insist on having 
 the evidence read; but even in the former case the 
 Court of Appeal has power to allow the evidence to be 
 adduced before reversing the decision. By a somewhat 
 singular omission no provision has been made in the 
 rules under the Judicature Act for substituted service 
 of notice of appeal, but the Court has jurisdiction in a 
 proper case to make an order for substituted service: 
 Ex parte Warburg, In re Whalley (24 Ch. Div. 364). 
 
 The rule with regard to extension of time was stated 
 in In re Manchester Economic Building Society (24 Ch. 
 Div. 488), where the decision in In re New Callao (22 
 Ch. Div. 484) was approved as follows. In order that 
 the appellant may be relieved from lapse of time it is 
 not necessary to shew that there is something in the 
 conduct uf the respondent which entitled the appellant 
 to be relived; it is sufficient if he satisfies the Court 
 that there is something either in the acts of the re- 
 spondent or from other circumstances which entitled 
 him to be relieved, and to be allowed to appeal not- 
 withstanding the time had lapsed. 
 
 The Court of Appeal has, it would seem, jurisdiction 
 to hear an appeal from a judgment by default, but 
 such appeals will be discouraged as being likely to 
 " flood " the Court of Appeal with the hearing of ac- 
 tions in the first instance. The proper course is for a 
 party to apply to the judge who heard the cause to set 
 aside the judgment and rehear the action: Vint v. 
 Hudspith (29 Ch. Div. 324). An application for an 
 extension of time in such a case may be made at the 
 same time as the application to set aside the judgment 
 if the action is still pending: Bradshawv. Warlow (32 
 Ch. Div. 403 ) ; In re Indian, Kingston and Sandhurst 
 Mining Company (22 Ch. D. 83). 
 
 An application for security for costs of an appeal 
 must be made promptly. As a general rule it is too 
 late if it is made when the appeal is in the paper for 
 hearing. The Court will, however, take into account 
 special circumstances; see in In re Clough, Bradford 
 
JURISDICTION OF THE COURT OP APPEAL. 463 
 
 Commercial Banking Company v. Case (35 Ch. Div. 7). 
 Semble, the Court will be more strict in enforcing 
 promptness where application is made on the ground 
 of poverty than where it is on the ground of the appel- 
 lant being out of the, jurisdiction. A limited company- 
 appealing alone from a winding-up order will generally 
 be ordered to give security for costs: In re Photo- 
 graphic Artists Association (23 Ch. Div. 370). There 
 is no rule exempting an insolvent appellant from giv- 
 ing security of costs of appeal on the ground that the 
 case involves a question of law not previously con- 
 sidered by a Court of Error: Farrer v. Lacy, Hartland 
 & Co. (28 Ch. Div. 482). 
 
 •^ The Court of Appeal decided in Washburn andMoen [ -fa 317] 
 Manufacturing Company v. Patterson (29 Ch. Div. 48) 
 to resort to the old practice (which had been for some 
 time abandoned), viz., that when an order has been 
 made for an appellant to give security for costs and he 
 has not done so within a reasonable time (and as a gen- 
 eral rule three months is more than a reasonable time), 
 an immediate order will be made dismissing the appeal, 
 unless there are extenuating circumstances. In United Bankruptcy 
 Telephone Company v. Bassano (31 Ch. Div. 630), the Ending 
 appellant became bankrupt before the appeal was ready, appeal. 
 It was held, under the circumstances, that, though 
 bankrupt, he had still a sufficient interest to entitle him 
 to go on with the appeal, and an order was made dis- 
 missing the appeal unless within a specified time the 
 bankrupt gave security or his trustee became a party to 
 the proceedings. In In re McHenry (17 Q. B. Div. 
 351) the deposit paid by a bankrupt on a bankruptcy 
 appeal was ordered to be increased by £100 on the 
 ground that he had already engaged in " protracted 
 litigation — always unsuccessful and always troublesome 
 and expensive — with his present opponents." A singu- 
 lar order was made in Willmot v. Freehold House Prop- 
 erty Company ("W. N. 1885, p. 65) directing £5 security 
 for costs of the appeal against an order directing se- 
 curity for costs. 
 
 In In re Strong (31 Ch. Div. 273) a solicitor appeal- 
 ed from a " mixed " order", as the Court of Appeal called 
 it, which, in addition to striking him off the rolls, or- 
 dered an account of moneys which he had received and 
 directed payment within a month of the amount found 
 due. The Court ordered security for costs, but expressed 
 an opinion that if the appeal had been simply from the 
 " penal " order striking the solicitor off the rolls, securi- 
 ty for costs would not have been required. 
 
464 
 
 JURISDICTION OF THE COURT OF APPEAL. 
 
 Appeal for 
 costs. 
 
 Mortga- 
 gee's costs. 
 
 [•318] 
 
 Staying 
 proceed- 
 ings. 
 
 Fund in 
 Court. 
 
 Married 
 woman 
 appealing 
 in formd 
 pauperis. 
 
 Alteration 
 of order. 
 
 It was held in In re Gilbert, Gilbert v. Hudlestone 
 (28 Ch. Div. 549), that where an appeal is brought by- 
 leave from an order as to costs, which are left by law to 
 the discretion of the judge, the Court of Appeal will 
 have regard to his discretion and will not overrule the 
 order, unless there has been a disregard of principle or 
 misapprehension of facts. 
 
 "Where the jurisdiction of the judge to inflict costs 
 arises from the party being guilty of a breach of in- 
 junction or other misconduct, an appeal lies as to costs 
 alone. "It is an appeal against the finding, by means 
 of which the judge clothes himself with the jurisdiction 
 to inflict costs :" In re Milton (53 L. J. (Q. B.) 65) ; 
 Stevens v. Metropolitan District Railway Company (29 
 Ch. Div. 60, 73). 
 
 Where an action has been dismissed with costs for 
 want of prosecution there is no appeal : Snelling v. 
 Pulling (29 Ch. Div. 85). See In re McClellan, Mc- 
 Clellan v. McClellan (29 Ch. Div. 495), as to costs 
 where the matter was pending on October 24th, 1883. 
 
 A mortgagee deprived of costs on the ground of mis- 
 conduct may appear, but if the judge, notwithstanding 
 misconduct, allows a mortgagee's costs, the mortgagor 
 has no right of appeal, as the fact of misconduct brings 
 the costs within the discretion of the judge : Charles v. 
 Jones (33 Ch.. Div. 80). 
 
 •fc It was held in Cropper v. Smith (24 Ch. Div. 305) 
 that the effect of the rules is to give a concurrent juris- 
 diction to the Court of Appeal and the Court below to 
 stay proceedings, but that the application must first 
 be made to the Court below. The application to the 
 Court of Appeal must be made within a reasonable 
 time, but as it is not an appeal it need not be made 
 within twenty-one days. 
 
 It is not the practice of the Court to retain a fund in 
 Court which has been ordered to be paid out, merely 
 because there is an appeal from the order pending ; 
 there must be some special circumstances: Bradford v. 
 Young (28 Ch. Div. 18). 
 
 A married woman, who had sued without a next friend 
 not in formd pauperis, applied for leave to appeal in 
 forma pauperis, and it was held by analogy to the pres- 
 ent practice, Order xvi. rr. 22, 23, 24, of R. S. C. 1883, 
 that the husband as well as the appellant herself must 
 make the required affidavit of poverty : In re Roberts, 
 Kiff v. Roberts (33 Ch. Div. 265). 
 
 It was held in In re Swire, Mellor v. Swire (30 Ch. 
 Div. 239), that when an order made by the Court of Ap- 
 
JURISDICTION OP THE COURT OF APPEAL. 465 
 
 peal was drawn up, passed, and entered in such a form 
 that it might be contended that the Court had decided 
 questions which were not before it, and which it never 
 meant to decide, the order ought to be altered. The 
 Court has jurisdiction over its own records, and if it 
 finds that the order as passed and entered contains mat- 
 ter which does not express the judgment the Court in 
 fact delivered, it has jurisdiction -which it will in a 
 proper case exercise to correct its record, that it may be 
 in accordance with the order really pronounced. There 
 is no such magic in passing and entering an order as 
 to deprive the Court of jurisdiction to make its own 
 records true, and if an order as passed and entered does 
 not express the real order of the Court, it would, the 
 Court said, be shocking to say that the party aggrieved 
 cannot come here to have the record set right, but must 
 go to the House of Lords by way of appeal. 
 
 In this case, however, as the applicant had not adopt- 
 ed the usual and proper practice of applying to vary 
 the minutes, he was ordered to pay the costs of the ap- 
 plication. 
 
 An interesting and important question was discussed Judgment 
 in the leading case as to the mode of obtaining relief or order 
 against a judgment or order obtained by fraud. The obta i ned by 
 Court of Appeal, in refusing the motion for a rehearing 
 of the appeal, said that if there were no other remedy 
 they should be disposed to think that the relief asked 
 ought to be granted, as they should be slow to believe 
 that there were no means whatever of rectifying such a 
 miscarriage if it took place ; but they were satisfied that 
 there was another remedy. The old practice remaining 
 wherever it has not been altered by the new rules, it be- 
 came necessary to consider the former rule in the Chan- 
 cery Courts, and this was that where a decree had been 
 obtained by fraud it was to be impeached by a new 
 suit (and for this purpose it was necessary in the great 
 majority of cases to obtain the leave of the Court to 
 commence the suit) in which the issue of fraud and of 
 fraud alone was raised. 
 
 •^ A separate action was subsequently brought (10 [■^■319] 
 Ch. Div. 327) to set aside the judgment obtained in 
 Flower v. Lloyd. The Court of Appeal dismissed the 
 action; and James, L. J., took occasion to deliver some 
 observations, one of his colleagues assenting and the 
 other dissenting, in which he expressed considerable 
 doubts whether such an action could be maintained. 
 "Where," he asked, "is litigation to end if a judg- 
 ment obtained in an action fought out adversely be- 
 
 30 MODERN EQUITY. 
 
466 ADMINISTRATION JUDGMENTS AND ORDERS. 
 
 tween two litigants sui juris and at arm's length could 
 be set aside by a fresh action on the ground that per- 
 jury had been committed in the first action or that false 
 answers had been given to interrogatories, or a mislead- 
 ing production of documents, or of a machine, or of a 
 process had been given ?" But see the judgment of 
 Jessel, M.R., in the leading case (6 Ch. D. p. 299), 
 from which it would seem clear that a judgment ob- 
 tained by fraud might (with leave) be impeached by 
 an original action. See Priestman v. Thomas (9 P. D. 
 70, 210). 
 
 See Abouloff v. Oppenheimer & Co. (10 Q. B. Div. 
 295) where it was held that a foreign judgment ob- 
 tained by fraud could not be enforced in an English 
 Court even though the foreign court had decided that 
 the fraud had not been committed. 
 
 Administration Judgments and Orders. 
 
 In re BLAKE. JONES v. BLAKE. 
 (29 Ch. Div. 913.) 
 
 Principle. The former practice of the Court, that a per- 
 
 son interested in the residue was entitled as of 
 course to a full administration of the estate, is 
 now completely altered, and all applications for 
 administration judgments or orders are at the 
 risk of the applicants. 1 
 
 Summary of A testatrix left the residue of her real and per- 
 facts. sonal estate to trustees upon trust to sell with all con- 
 
 venient speed, with power to postpone the sale at 
 their discretion and hold the proceeds in trust for 
 her children and grandchildren in equal sixth shares. 
 The trustees advertised the residuary estate for sale 
 
 1 In most of the States of the Union where a testator has made 
 a will and has either failed to appoint an executor or the execu- 
 tor he has named has died, or renounces, or becomes disqualified 
 in any way there is a certain order of appointment' fixed by 
 statutes in the various States which regulate the appointment of 
 a person to administer the estate. The residuary legatee is not 
 entitled to appointment. 
 
ADMINISTRATION JUDGMENTS AND ORDERS. 467 
 
 by auction, and an -^ application was made in behalf [ + 320] 
 of two residuary legatees, one of whom was an in- 
 fant, asking (inter alia) that the trustees might be 
 ordered to abstain from selling the real estates, for 
 certain accounts, and if and so far as should be nec- 
 essary, general administration. The Court of Ap- 
 peal (varying the order of Kay, J.) refused to in- 
 terfere with the trustees' discretion as to selling the 
 estate, directed certain inquiries, and declined to 
 make any general order for administration. 
 
 In no single department of modern equity has a 
 greater revolution been introduced than in the practice 
 which concerns the administration of estates. " Form- Former 
 erly," said the Court of Appeal, in delivering judg- P ractiee - 
 ment in the leading case, " if anyone interested in a 
 residuary estate instituted a suit to administer the es- 
 tate, he had a right to require, and as a matter of 
 course obtained the full decree for the administration 
 of the estate ; and the Court, even if it thought that, 
 although there were really questions which required 
 decisions, those questions might be decided upon some 
 only of the accounts and inquiries which formed part 
 of the decree, found itself fettered and unable to re- 
 strict the accounts and inquiries to such only as were 
 necessary in order to work out the questions." 
 
 It was held, however, in Croggan v. Allen (22 Ch. Costs of 
 D. 101—104) — where the plaintiff, who had instituted an improper 
 administration action after her solicitors had expressed administra- 
 themselves satisfied with the accounts, was not only not 10n ' 
 allowed, but was ordered to pay certain costs — follow- 
 ing Lord Westbury's decision in Bartlett v. Wood (9 
 W. B. 817, 818), that no costs ought to be given out of 
 the estate for any proceedings except those which are 
 in their origin directed with some show of reason and 
 a proper foundation for the benefit of the estate, or 
 which have in their result conducted to that benefit. 
 
 The great changes which have been wrought in the 
 practice as to administrations are contained in E. S. C, 
 1883, Order lv. rr. 3 et seq., under which application 
 may be made for the determination of the questions 
 and matters there mentioned, by means of an originat- 
 ing summons, without an administration of the estate 
 or trust, and in Order lv. r. 10, and Order lxv. r. 1, 
 
468 ADMINISTRATION JUDGMENTS AND ORDERS. 
 
 which, according to the judgment of the Court of Ap- 
 peal in the present case, are to be read together. 
 
 Order lv. r. 10 provides that it shall not be obliga- 
 tory on the Court or a judge to pronounce or make a 
 judgment or order, whether on summons or otherwise, 
 for the administration of any trust, or of the estate of 
 any deceased person, if the questions between the par- 
 ties can be properly determined without such judgment 
 or order. The effect of this "most salutary rule" 
 [ "A - 321] (Order lv. r. 10 was considered in In re -^ Barnard, 
 Edwards v. Barnard (32 Ch. Div. 447), where it was 
 regarded as doubtful whether a joint creditor of a 
 partnership firm could take oat an originating sum- 
 mons for the administration of the estate of a de- 
 ceased partner. The result of this order, taken by 
 itself, was thus stated by Cotton, L. J. : "Where 
 there are questions which cannot properly be deter- 
 mined without some accounts and inquiries or direc- 
 tions which would form part of an ordinary admin- 
 istration decree, there the right of the party to have 
 the decree or order is not taken away, but the Court 
 may restrict the order simply to those points which will 
 enable the question which requires to be adjudicated 
 upon to be settled." 
 
 The provisions of Order lv. r. 10, are supplemented 
 by the rule as to the costs of administrations. Order 
 lxv. r. 1, provides on this subject, that, subject to the 
 provisions of the Acts and these rules, the costs of and 
 incident to all proceedings in the Supreme Court, in- 
 cluding the administration of estates and trusts, shall 
 be in the discretion of the Court or judge. 
 Combined The Court of Appeal stated the combined effect of 
 
 effect of the two orders to be that if a party comes and insists 
 
 » r\ Y '*lr\, ' that there is a question to be determined, and, for the 
 
 & U. LXV. r. i. -i j • • j i , • ip i 
 
 1. purposes or determining that question, asks for an ad- 
 
 ministration judgment, the Court cannot refuse the 
 judgment, unless it sees that there is no question which 
 requires its decision; but if it turns out that what has 
 been represented as the substantial question requiring 
 adjudication is one which was not a substantial ques 
 tion, or that the applicant was entirely wrong in his 
 contention as to that particular question, the Court 
 can, and ordinarily ought to, make the person who gets 
 the judgment pay the costs of all the proceedings con- 
 sequent upon his unnecessary or possibly vexatious ap- 
 plication to the Court. The object of the present or- 
 ders is to prevent the general administration of estates 
 
ADMINISTRATION JUDGMENTS AND ORDERS. 469 
 
 when the question in dispute can be otherwise properly- 
 determined. 
 
 It was also laid down in the leading case, dissenting 
 from the view expressed in In re Wilson, Alexander v. 
 Calder (28 Ch. D. 457), that the mere fact that one of 
 the litigants is an infant is not sufficient reason for 
 making an administration order at the expense of the 
 estate. 
 
 It was held in In re Carlyon, Carlyon v. Carlyon Originating 
 (35 W. R. 155), that Order lv. r. 3, did not apply to a summons, 
 question arising between the trustees of a will and the 
 trustees of a settlement of another person, which could 
 not under the former practice have been determined in 
 an administration action. 
 
 When an action is for the administration of personal Practice, 
 estate a creditor may sue on behalf of himself. It was 
 decided, however, in In re Royle (5 Ch. D. 540), fol- 
 lowing Worraker v. Pryor (2 Ch. D. 109), that in a 
 creditors' action for the administration of real and per- 
 sonal estate where there is no devise of real estate to 
 trustees with power to sell and give receipts, a plaintiff 
 must sue "on behalf of himself and all the other cred- 
 itors," and the writ was directed to be amended accord- 
 ingly- 
 
 It should be remembered, however, that R. S. C. 
 1883, O. xx. r. 4 -fa provides that " Whenever a state- T -^ 322] 
 ment of claim is delivered the plaintiff may therein al- 
 ter, modify, or extend his claim without any amendment 
 of the indorsement of the writ." 
 
 The Court however bas a power by O. xx. r. 1 (e), 
 in cases where a plaintiff delivers a statement of claim 
 without being required to do so (a voluntary statement 
 of claim as it is called in the marginal note), to make 
 such order as to the costs occasioned thereby as shall 
 be just; and even under the old practice the general 
 rule would seem to have been established by Green v. 
 Coleby (1 Ch. D. 693), that in administration actions 
 statements of claim ought not to be delivered. - 
 
 The writ and pleadings in administration actions Title of 
 ought to be entitled " In the matter of the estate of A. action. 
 B., deceased. Between C. D., plaintiffs, and E. ¥., de- 
 fendants." 
 
 Order lv. r. 10, E. S. C, Dec. 1885, provides that: 
 Upon an application for administration or execution of 
 trusts by a creditor or beneficiary under a will, intes- 
 tacy, or deed of trust, where no accounts or insufficient 
 accounts have been rendered, the Court or a judge may, 
 in addition to the powers already existing: — 
 
470 ADMINISTRATION JUDGMENTS AND ORDERS. 
 
 (a) Order that the application shall stand over for a 
 certain time, and that the executois, administrators, or 
 trustees in the meantime shall render to the applicant 
 a proper statement of their accounts, with an intima- 
 tion that if this is not done they may be made to pay 
 the costs of the proceedings: 
 
 (6) When necessary to prevent proceedings by other 
 creditors, make the usual judgment or order for admin- 
 istration, with a proviso that no proceedings are to be 
 taken under such judgment or order without leave of 
 the judge in person. 
 
 Order lv. r. 15, provides that: No order for general 
 administration or for the execution of a trust, or for 
 accounts or inquiries concerning the property of a de- 
 ceased person, or other property held upon any trust, 
 or the parties entitled thereto, shall be made except by 
 the judge in person. 
 
 Wilful de- Where a case of wilful default is alleged, but the 
 
 fault. judgment gives no relief on that footing, the claim 
 
 however not being dismissed, the Court may at any 
 subsequent stage of the proceedings, if evidence of wil- 
 ful default is brought forward, direct inquiries on that 
 footing: In re Symons, Luke v. Tonkin (21 Ch. D. 
 757). Allegations of fraud and wilful default ought 
 to be disposed of at the hearing: Smith v. Armitage 
 (24 Ch. D. 727). After a common administration judg- 
 ment, leave must be obtained in order to bring an action 
 on the footing of wilful default: Laming v. Gee (10 
 Ch. D. 715). The burden of proof is on the party 
 making the charge: In re Brier, Brier v. Evison (26 
 Ch. Div. 238), and an inquiry as to wilful default can- 
 not be obtained adversely unless one instance at least 
 of wilful default is proved: In re Youngs, Doggett v. 
 Revett (30 Ch. Div. 421). 
 
 Costs. It is the settled rule that the plaintiff in a legatee's 
 
 administration action is entitled to his costs between 
 solicitor and client, where the estate is insufficient for 
 
 [ ~j{ 323] the payment of legacies in full, provided it is -^ suffi- 
 cient to pay debts, but not otherwise. The rule applies 
 even where there is a contest between the plaintiff and 
 another legatee as to the proper mode of dividing the 
 fund. In re Harve, Wright v. Woods (26 Ch. D. 179); 
 In re Wilkins, Wilkins v. Rotherham (27 Ch. D. 703). 
 In In re Vowles, O'Donoghue v. Venules (32 Ch. D. 
 243), a sole executor became bankrupt, after an admin- 
 istration judgment against him. He was a debtor to 
 the estate, and it was held, following In re Basham, 
 Hannay v. Basham (23 Ch. D. 195), that as his debt 
 
ADMINISTRATION JUDGMENTS AND ORDERS. 471 
 
 would be discharged by his bankruptcy he must be al- 
 lowed his costs subsequent to the bankruptcy, but his 
 prior costs must be set off against his debt. In In re 
 Griffiths, Griffiths v. Lewis (20 Ch. D. 465), the action 
 was against the executor of a defaulting executor whose 
 estate was insolvent, and it was held that as he was be- 
 fore the Court in a double capacity he was entitled to 
 the costs of taking the accounts of the original testa- 
 tor's estate and half the rest of the costs of the action 
 out of the estate. 
 
 It was held Batthyany v. Walford (33 Ch. D. 625) Foreign 
 that the plaintiff was entitled to an administration judg- creditors, 
 ment in this country, but that the amount of his claim 
 must be determined in the Courts of the foreign coun- 
 try where the liability (in respect of waste) arose. 
 Foreign creditors are entitled to dividends pari passu 
 with English creditors in the administration of the 
 English estate of a deceased person domiciled abroad: 
 In re Klcebe, Kannreuther v. Geiselbrecht (28 Ch. D. 
 175). 
 
 The practice of the Court with regard to binding Absent 
 absent parties in cases where under Order xvi. r. 33 parties. 
 et seq. a judgment or order for administration of a trust 
 estate is obtained without serving some of the parties 
 interested, was much considered in May v. Newton (34 
 Ch. D. 347), where it was stated as follows: — "The 
 effect of all those rules is that persons interested in the 
 property which is being administered and whose rights 
 or interests may be affected by an order directing ac- 
 counts or inquiries are not. bound — at any rate when 
 they ought to be served with notice of such order — 
 unless they are so served or unless such a representa- 
 tion order is made as I have mentioned. If service 
 upon them is dispensed with, or if under Order xvi. r. 
 46, the Court proceeds in the absence of any one repre- 
 senting them, they are not bound." 
 
 - There is no rule of English law which precludes a claim 
 claimant from recovering on his own testimony against against 
 the estate of a deceased person although the Court will estate of 
 generally require such corroboration: In re Hodgson, deceased 
 Beckett v. Ramsdale (31 Ch. Div. 177); Maddison v. 
 Alderson (8 App. Cas. 467, 469; ante, p. 98). This 
 would appear to overrule the dicta of Jessel, M.R., on 
 this point in In re Finch, Finch v. Finch (23 Ch. Div. 
 267-271), where, however, the rule is spoken of rather 
 as a rule of prudence than a rule of law. 
 
 By Order lv. r. 2 (16), applications for orders on the 
 further consideration of any cause or matter where the 
 
472 INJUNCTION. 
 
 [ -^ 324] order to be made is for the -fa distribution of an insol- 
 vent estate or for the distribution of the estate of an in- 
 testate,' or for the distribution of a fund among cred- 
 itors or debenture holders, are to be made in Chambers, 
 but a plaintiff will not be disallowed his costs where the 
 distribution of the estate gives rise to questions of diffi- 
 culty: In re Barber, Burgess v. Vinnicombe (31 Ch. 
 D. 665). 
 
 Injunction 
 
 DAY v. BEOWNEIGG. 
 
 (10 Ch. Div. 294.) 
 
 G-ASKIN p. BALLS. 
 
 (13 Ch. Div. 324.) 
 
 NORTH LONDON RAILWAY CO. v. GREAT 
 NORTHERN RAILWAY CO. 
 
 (11 Q. B. Div. 30.) 
 
 Principle. The effect of sect. 25, sub-sect. 8, of the Judi- 
 
 cature Act, 1873, with regard to injunctions has 
 not been to give any new rights to parties who 
 had previously no rights enforceable at law or 
 in equity, but simply to enable the High Court 
 without being hampered by its old rules, to grant 
 an injunction whenever it is just or convenient 
 so to do, for the purpose of protecting or assert- 
 ing the legal rights of the parties? 
 
 Summary of In the first of these cases the plaintiffs alleged 
 facts. th a £ their house had been called "Ashford Lodge" 
 
 for sixty years, and that the defendants, whose ad- 
 joining house had been called "Ashford Villa" for 
 forty years, had recently changed the name of their 
 house to "Ashford Lodge," and that this caused con- 
 siderable expense and damages and extreme and in- 
 
 1 Injunctions are either interlocutory or perpetual. Kerr on 
 Injunctions, Chap. 2; Kershaw v. Thompson, 4 Johns. Ch. 610. 
 
INJUNCTION. 473 
 
 creasing personal -fa inconvenience and annoyance [ -fc 325] 
 to the plaintiffs. The Court of Appeal decided that 
 there was no case for an injunction. 2 
 
 In the second case defendant purchased part of 
 an estate which was subject to restrictive covenants 
 against building beyond a certain line. Some build- 
 ings had been erected by his predecessor, but there 
 had been acquiescence for five years, and the de • 
 fendant after his purchase erected further buildings 
 beyond the line, and continued to build despite the 
 plaintiff's protest. The plaintiff then commenced 
 an action, and applied for a mandatory injunction 
 to have all the buildings removed. The Court of 
 Appeal granted a mandatory injunction as to build- 
 ings erected after the time when the defendant had 
 acquired his title, but refused to interfere with the 
 other buildings. 3 
 
 In the third of these cases the Court refused to 
 issue an injunction to restrain a party from going 
 on with an arbitration which might be futile, vexa- 
 tious, and cause delay. 
 
 These cases have been grouped together as settling 
 the principles by which the Court is now governed as 
 to the exercise of its extremely important jurisdiction 
 with regard to injunctions. The 25th section of the 
 Judicature Act, 1873, sub-sect. 8, provides (inter alia) 
 that an injunction may be granted by an interlocutory 
 order of the Court in all cases in which it shall appear 
 to the Court to be just or convenient that such order 
 should be made; and any such order may be made 
 either unconditionally or upon such terms and condi- 
 tions as the Court shall think just. In all the three 
 cases the Court was pressed by the argument that the 
 effect of this section of the Judicature Act was to ex- 
 tend the principles upon which the Courts proceed in 
 granting injunctions, and in all of theui the Court de- 
 clined to extend its jurisdiction beyond the point to 
 
 2 See 16 U. S. Statutes at Large, 210, and said act declared un- 
 constitutional in Trade Mark Cases, 10 Otto, 82. 
 
 3 Watertown v. Cowen, 4 Paige, 510; Scott j>. Burton, 2 Ashm. 
 325. 
 
474 INJUNCTION. 
 
 ■which it had been carried by cases decided before the 
 Judicature Act. 
 
 In the first of the leading cases, Day v. Brownrigg 
 (10 Ch. Div. 294), the Court of Appeal disclaimed the 
 power of legislation which the plaintiff's counsel had 
 asserted to exist in the Court. There was, they said, no 
 authority for the proposition that a man had a legal 
 right to the use of any name he chose to affix to any 
 part of his landed property, whether consisting of a 
 house or land, to the exclusion of all other Her Majes- 
 ty's subjects. "It appears to me," said James, L.J. , 
 [ "it 326] "there is no *fc damage alleged, there is no legal right 
 alleged, the violation of which was the cause of dam- 
 age. 4 That being so, it is not for this Court to say that 
 because somebody is doing something which it thinks 
 not quite right, a thing which ought not to be done by 
 one person to another, it should interfere. This Court 
 can only interfere where there is an invasion of a legal 
 or equitable right;" and he subsequently added that 
 the power given to the Court by sect. 25, sub-sect. 8, 
 of the Judicature Act, 1873, to grant an injunction in 
 all cases in which it should appear to the Court to be 
 " just or convenient " to do so, did not in the least al- 
 ter the principles on which the Court should act. 5 
 
 In the second leading case, Gaskin v. Balls (13 Ch. 
 Div. 324), the Court of first instance had ordered the 
 removal of the buildings which the defendant found on 
 the property when he bought it, but the Court of Ap- 
 peal considered that it would be going further than any 
 decided case to enforce the covenant against the defend- 
 ant in respect of acts done before he became owner, 
 and without any complaint at the time. In the matter 
 of injunctions, they said, the Judicature Act has done 
 nothing to alter the principles which have been laid 
 down as to the exercise of its powers, where principles 
 have been established as being just and convenient. 
 
 In the third leading case, North London Railway 
 Go. v. Great Northern Raihvay Co. (11 Q. B. Div. 30), 
 
 * If the complainant's legal right is admitted, his right to an 
 injunction is plain; but if he has no legal right the injunction 
 -will be refused. Washburn's App., 105 Pa. St. 480. See Car- 
 lisle v. Cooper, 6 C. E. Green, 576; McCallum v. Germantown 
 Water Co., 4 P. F. Smith, 40; Gardner v. Newberg, 2 Johns. Ch. 
 162. 
 
 5 If the damage is slight, or the injury merely contingent the 
 court 'will not grant an injunction as damages at law will be an 
 adequate remedy. Webber i>. Gage. 39 N. H. 186; Richards' 
 App., 7 P. F. Sm. 105; Health Dept. v. Purdon, 99 N. Y. 241; 
 Bemis v. Upham, 13 Pick. 169; Thebaut v. Canova, 11 Fla. 143. 
 
INJUNCTION. 475 
 
 the Court of Appeal, in refusing to grant the plaintiffs 
 an injunction on the ground that the defendants were 
 not interfering with any legal right of the plaintiffs or 
 inflicting on the plaintiffs that which the law considers 
 a wrong, laid down clearly the principle on which the 
 Court proceeds. 
 
 In Beddoio v. Beddow (9 Ch. D. 89) (where the Court 
 restrained an arbitrator from acting on the ground that 
 he was an unfit person), Jessel, M.E., after pointing 
 out that the extensive jurisdiction given to the Com- 
 mon Law Courts by the Common Law Procedure Act 
 is now vested by the Judicature Act in the High Court, 
 stated the result of the two Acts of Parliament to be 
 that " the Court had an unlimited power to grant an 
 injunction in any case where it would be right or just 
 to do so, and what is right or just must be decided, not 
 by the caprice of the judge, but according to sufficient 
 legal reasons or on settled legal principles." These 
 words, which would seem to have given rise to some 
 misapprehension, were explained by Cotton, L.J. (11 
 Q. B. Div. 40), as follows: — "If there is either a legal 
 or an equitable right which is being interfered with, or 
 which the Court is called upon to protect, and the cir- 
 cumstances do not render it inconvenient or unadvisable 
 to interfere, but render it convenient and advisable to 
 interfere, the Court may protect that right by giving 
 the remedy which previously would not have been given, 
 namely, an injunction." 6 
 
 The Court of Appeal then considered the decisions of 
 Jessel,M.E.,in Aslatt v. Corporation of Southampton(16 
 Ch. D. 143), Stannard v. Vestry of St. Giles, Camber- 
 well (20 Ch. D. 190), and Hedley v. Bates (13 Ch. D. 
 498). In the two latter cases, where the plaintiff would 
 have had a right to apply to a Common Law Court for 
 a prohibition, -fa the Chancery Court instead of sending (" -A- 327] 
 him away to get such a prohibition granted an injunction 
 against going to a wrong tribunal. But there was this 
 common element. in all the cases where injunctions had 
 been granted, that there was a legal right which might 
 have been asserted in some Court. This principle how- 
 ever had no application to such a case as that of the 
 North London Railway Co. v. Great Northern Railway 
 Co., where the arbitrator had no jurisdiction — where no 
 
 6 Butch v. Lash, 4 Iowa, 215. The tendency of the modern 
 decisions in cases of injunctions is against the old rule which re- 
 quired the prior establishment of the legal right. Bispham's 
 Eq. (4th Ed.), Sect. 440. 
 
470 
 
 INJUNCTION. 
 
 Undertak- 
 ing as to 
 damages. 
 
 legal right was interfered with, and accordingly the 
 Court of Appeal declined to grant an injunction. 
 
 " All that was done," said the Court of Appeal, " by 
 this section (sect. 25, sub sect. 8, Judicature Act, 1873), 
 was to give to the High Court " — which, as is subse- 
 quently stated, " amalgamates in itself all the jurisdic- 
 dictions which had previously existed " — " power to 
 give a remedy which formerly would not have been 
 given in that particular case, but still only a remedy in 
 defence of or to enforce rights which according to law 
 were previously existing and capable of being enforced 
 in some or one of the different divisions which are now 
 united in the High Court. The sole intention of the 
 section is this, that where there is a legal right which 
 was, independently of the Judicature Act, capable of 
 heing enforced either at law or in equity, then, what- 
 ever may have been the previous practice, the High 
 Court may interfere by injunction in protection of that 
 right." 
 
 In Street v. Union Bank of Spain and England ( 30 
 Ch. D. 156) the Court, following the leading case of 
 Day v. Brownrigg, declined to grant an injunction to 
 restrain the use of a cypher address — the case, in its 
 opinion, being not one of legal injury but simply of in- 
 convenience. 7 
 
 It was held in London and Blackioall Railway Com- 
 pany v. Cross (SI Ch. D. 354), distinguishing the leading 
 case of North London Raihvay Company v. Great North- 
 ern Railway Company, that the Court has no general 
 jurisdiction to restrain persons from acting without au- 
 thority, and accordingly an injunction to restrain a per- 
 son from taking proceedings out of Court in the name of 
 a person who had given no authority to use it, was re- 
 fused. 8 
 
 In doubtful cases where damage may be occasioned 
 to the defendant, in the event of an injunction or interim 
 restraining order proving to have been wrongly granted, 
 the Court will require the plaintiff, as a condition of its 
 interference in his favour, to enter into an undertaking 
 to abide by any order it may make as to damages. 
 
 It was laid down in Griffiths. Blake (27 Ch. Div. 474, 
 477), dissenting from the dictum in Smith v. Day (21 
 
 7 Rhodes v. Dunbar, 7 P. F. Sm. 274 ; Mohawk Bridge Co. v. 
 Railroad, 6 Paige, 554 ; Bradsher v. Lea, 3 Ired. Eq. 301. 
 
 8 Equity will interfere by injunction to restrain proceedingsat 
 law. Davis v. Hoopes, 33 Miss. 173 ; Lyme v. Allen. 51 N. H. 
 242 ; Metier v. Id., 3 C. E. Green, 270 ; Vennuui r. Davis, 35 111. 
 568 ; Ferguson v. Fisk, 28 Conn. 501 ; Lyon's App., 11 P. F. Sm. 
 15. 
 
INJUNCTION. 477 
 
 Ch. D. 421), that whenever the usual undertaking is 
 given, and the plaintiff ultimately fails on the merits, 
 the rule, in the absence of special circumstances, is to 
 grant an inquiry as to damages, though the plaintiff 
 was not guilty of any misrepresentation, suppression, or 
 other default in obtaining the injunction An applica- 
 , tion for an injunction may be made by the plaintiff 
 either ex parte or on notice. 9 If by any other party, 
 then on notice to the plaintiff, and at any time after ap- 
 pearance by the party who makes the application (R. S. 
 C. 1883, O. l. r. 6.) 
 
 ■fa The nature of an interlocutory injunction is well [ ~jf 328] 
 illustrated by Preston v. Luck (27 Ch. Div. 497), where, Interlocu- 
 there being prima facie a contract between the parties, function 
 the Court of Appeal thought it right to keep things in 
 statu quo, so that if the plaintiff succeeded, the defend- 
 ant would have been prevented from meanwhile deal- 
 ing with the property so as to make the judgment inef- 
 fectual. The Court is not deciding finally upon the 
 rights of the parties, but it must be satisfied tbat there 
 is a serious question to be tried, and a probability tbat 
 the plaintiffs are entitled to relief (per Cotton, L.J.). 10 
 
 It was held in Wimbledon Local Board v. Croydon 
 Rural Sanitary Authority (32 Ch. Div. 421), distin- 
 guishing Bolton v. London School Board (7 Ch. D. 766), 
 that a motion to discharge an ex parte injunction ob- 
 tained by misrepresentation is proper, though the in- 
 junction is about to expire. 11 The following are some 
 of the more important cases on the subject of injunc- 
 tion which have been decided in recent years : — 
 
 A company in voluntary liquidation may be restrained Company, 
 from distributing its assets among its shareholders with 
 out providing for future rent and liabilities under a 
 lease: Gooch v. London Banking Association (32 Ch. 
 Div. 41). Proceedings against a company before a 
 magistrate may be restrained pending the hearing of a 
 
 9 An ex parte injunction is only granted in urgent cases where 
 delay might produce an irreparable injury. It is granted to the 
 plaintiff before the appearance of the defendant ; but he is allowed 
 an early opportunity to move to dissolve the injunction and ifhe 
 fully denies all the circumstances the injunction will' usually be 
 dissolved. Dennis v. Green, 8 Ga. 197 ; Wood v. Paterson, 4 Md. 
 Ch. 335 ; Livingston v. Id., 4 Paige, 111 ; Hollister v. Barkley, 9 
 N. H. 230 ; Joyce on Injunctions, 1. 
 
 10 Adams on Equity, 357. 
 
 11 The injunction will not be dissolved if the answer is evasive 
 or if there is extreme improbability in its allegations. Little v. 
 Marsh, 2 Ired. Eq. 18 ; Moore e. Hylton, 1 Dev. Eq. 429, and 
 Ward v. Van Bokkelen, 1 Paige, 100 ; Poor v. Carlton, 3 Sumner, 
 70 ; Authorpe v. Comstock, Hopkins R. 143. 
 
478 
 
 INJUNCTION. 
 
 Husband 
 arid wife. 
 
 Lectures. 
 
 Libel. 
 
 Slander. 
 
 petition for winding up. 12 In re Briton Medical and 
 General Life Assurance Association (32 Ch. D. 503). 
 
 Where a house had been settled upon a married 
 woman for her separate use, and proceedings were pend- 
 ing between husband and wife at the suit of the wife 
 for divorce or judicial separation and the parties were 
 living apart, an interim injunction was granted to re- 
 strain the husband from going to and using the house 
 for his own purposes : 13 Symon v. Hallett ( 24 Ch. Div. 
 346). 
 
 Where a lecture is delivered to an audience limited 
 and admitted by ticket, an injunction may be obtained 
 to restrain the publication for profit of notes taken, and 
 the fact that the publication is in shorthand characters 
 does not make any difference.' 4 Nicols v. Pitman (26 
 Ch. D. 374), following Abernethy v. Hutchinson (3 L. 
 J. Ch. (O. S.) 209; 1H.&T. 28). 
 
 It was held in Prudential Assurance v. Knott (L. B. 
 10 Ch. 142) (Kerr on Injunction, p. 2) that an injunc- 
 tion could not be granted to restrain the publication of 
 a libel, but the law on this point has long been altered. 
 See Thorley's Cattle Food Company v. Massam (6 Ch. 
 D. 682), considered in Saxby v. Easterbrook (3 C. P. 
 D. 339); Halsey v. Brotherhood (19 Ch. Div. 386); 
 Quartz Hill Consolidated, &c, Company v. Beall (20 
 Ch. Div. 501), where it was held that there was juris- 
 diction to interfere in an interlocutory application, but 
 that it is to be exercised with great caution: 15 Hill v. 
 Hart-Davies (21 Ch. D. 798); Hayward & Co. v. Hay- 
 ward & Sons (34 Ch. D. 198). Oral slander was re- 
 strained in Hermann Loog v. Bean (26 Ch. Div. 306.) 
 
 12 Bills to restrain corporate actions are quite frequent through- 
 out the United States and are used in case of municipal corpora- 
 tions of a private character. Grand Trunk R. W. v. Cooke, 29 
 111. 237 ; People v. New York, 32 Barb. 102 : Schofield u. Eighth, 
 etc., 27 Conn. 499 ; Dodge v. Woolsey, 18 Howe. 341 ; Mathews 
 v. Skinner, 62 Mo. 329 ; Nazro v. Ins. Co. 14 Wis. 295 ; Sturges 
 v. Knapp, 31 Vt. 1 ; Curtenius v. Hoyt, 37 Mich. 583 ; Mander- 
 son v. Bank, 4 Casey, 379 ; Newark Road Co. v. Elmer, 1 Stock- 
 ton, 754. 
 
 13 Interim orders are sometimes made pending litigation. Kerr 
 on Injunctions, 199. 
 
 14 See Bowen v. Hall, 20 Am. Law Reg. 587 ; Kemble v. Kean, 
 6 Sim. 333. 
 
 15 It lies upon the plaintiff to prove that the defendant's state- 
 ments are false and an interlocutory injunction will not be 
 granted unless the applicant shows that "irreparable damage " 
 will ensue from the continuance of the act complained of. Odgers 
 on Libel and Slander, 256, (Text Book Series). 
 
 An interlocutory injunction concludes on right. Kerr on In- 
 junctions, Chap. 2. 
 
1 
 
 INJUNCTION. / , 479 
 
 The subject of the obstruction of ancient lights ,e was Light, 
 carefully considered in Parker v. First Avenue Hotel 
 Company (24 Ch. Div. 282, -^ 288), where it was held [ -£- 329] 
 that there was no conclusion of law or necessary infer- 
 ence of fact that a building wili not obstruct the light 
 coming to a window if it permits the light to fall on the 
 window at an angle of not less than 45 from the ver- 
 tical, and that the question of obstruction is to be deter- 
 mined by the evidence in each case. See further on the 
 subject of light City of London Brewery v. Tennant 
 (L. E. 9 Ch. 212); Hackett v. Baiss (L. E. 20 Eq. 497); 
 Theed v. Debenham (2 Ch. D. 165); Holland v. Worley 
 (26 Ch. D. 578), where it was held that the Court can 
 exercise its discretion as to awarding damages in lieu 
 of injunction and will take into consideration the cir- 
 cumstances, ex. gr. that the property is situated in the 
 centre of London: Scott v. Pope (31 Ch. Div. 554), 
 where the previous authorities are collected; Harris v. 
 De Pinna (33 Ch. Div. 238); Greenwood v. Hornsey 
 (33 Ch. Div. 471). 
 
 In Newson v. Pender (27 Ch. Div. 43) the Court 
 granted an injunction on the grounds ( 1 ) that the plain- 
 tiff had shewn an intention of preserving his ancient 
 lights; (2) that the balance of convenience was in 
 favour of granting an injunction rather than allowing 
 the building to proceed. 17 
 
 The general rule is that the Court will not grant an Mortgage, 
 interlocutory injunction restraining the mortgagee from 
 exercising his power of sale except on the terms of the 
 mortgagor paying into Court the amount sworn by the 
 mortgagee to be due for principal, interest and costs. 
 This rule does not apply where the Court can see, on 
 the terms of the deed, that the amount alleged cannot 
 be due, Hickson v. Darlotv (23 Ch. Div. 690), nor where 
 the mortgagee was, at the time of taking the mortgage, 
 solicitor of the mortgagor, for then the Court will im- 
 mediately inquire into all the circumstances and will 
 not allow the solicitor to exercise his unqualified rights 
 as mortgagee, but only subject to the control of the 
 Court and in a fair and equitable manner. Macleod v. 
 Jones (24 Ch. Div. 289-297). 
 
 16 It is a nuisance obstruct light and air to which the owner of 
 a building is legally entitled. Sutcliff «. Isaacs, 1 Parson's Eq. 
 494. The rule upon the subject of ancient lights in the United 
 States differs from English rule. Chevry v. Stein, 11 Md. 1 ; 
 Kinga. Miller, 4 Halstead, Ch. 559; High on Injunctions, Sect. 553. 
 
 17 No injunction can be obtained simply because a disagreea- 
 ble object is erected in view, or that a pleasant outlook is shut 
 off. Volmer's Appeal, 11 P. F. Sm. 118. 
 
480 
 
 INJUNCTION. 
 
 Negative 
 stipulation. 
 
 Patent. 
 
 [*330] 
 
 Penal 
 
 statute. 
 
 An injunction may be granted to restrain the breach 
 of a negative stipulation although the contract was one 
 of which specific performance would not be granted: I8 
 Donnell v. Bennett (22 Ch. D. 835), in which the well- 
 known case of Luinley v. Wagner (1 D. M. & G. 604) is 
 considered. 
 
 In Soci6t6 Anonyme des Manufactures de Glaces v. 
 Tilghman's Patent Sand Blast Company (25 Ch. Div. 
 1), the Court, in the absence of any evidence of the 
 violation of a contract, refused to grant an interim in- 
 junction to restrain the bona fide issue of a trade cir- 
 cular warning against an infringement of a patent. 19 
 
 In United Telephone Company v. Dale (25 Ch. D. 778) 
 the Court intimated a strong opinion that an injunction 
 granted to restrain the sale of a complete machine 
 would be violated by a sale of the component parts of 
 the machine in such a manner that they might be easily 
 put together by any, one. 
 
 Under the Patents, Designs and Trade Maries Act, 
 1883, (46 & 47 Vict. c. 57), the applicant, as a condi- 
 tion precedent to his obtaining -fa an injunction, must 
 shew that there is no infringement on his part: Bar- 
 ney-?. United Telephone Company (28 Ch. D. 394). In 
 such an action the validity of the patent cannot be 
 tried, the only issue being infringement or no infringe- 
 ment: 20 Kurtz v. Spence (33 Ch. D. 579). 
 
 It was held in Cooper v. Whittingham (15 Ch. D. 501) 
 that where a statute creates a new offence and enacts a 
 penalty, ex. gr. as in this case, the Copyright Act, 1842 
 (5 &6 Vict, c. 45), the person proceeding under the 
 statute is not confined to the recovery of the penalty, but 
 the ancillary remedy by injunction may still be claimed 
 as well. This case was considered in Hayward v. East 
 London Waterworks Company (28 Ch. D. 138), where it 
 was held that the statutory remedy by penalties pro- 
 vided by the Waterworks Clauses Act, 1847, had not 
 ousted the jurisdiction of the Court to restrain the com- 
 pany by injunction from cutting off the Bupply of water, 
 but that the injunction would not be granted except 
 pending proceedings for the settlement of the dispute 
 
 18 The mere fact that there has been a breach of a covenant, is 
 sufficient ground for the Court to interfere by injunction. St. 
 Andrews Church's Appeal, 17 P. F. Sm. 518. 
 
 19 In the case of patents the right to interfere by injunction 
 can be exercised only by the TJ. S. Courts. Curtis on Patents, 
 495; Slemraer's App., 8 P. F. Sm. 155. 
 
 20 Shelly r. Brannan, 4 Fisher's Patent Cases, 198; Sickles v, 
 Gloucester Mf 'g Co., 1 Id. 222. 
 
INJUNCTION. 481 
 
 as to value, or upon an undertaking by the plaintiff to 
 commence proceedings within a short period. 
 
 In Fletcher v. Bealey (28 Ch. D. 688) it was laid Quia timet 
 down that there must be two necessary ingredients for action, 
 a quia timet action, i. e. an action to restrain and ap- 
 prehended injury. There must, if no actual damage is 
 proved, be proof of imminent danger, and there must 
 also be proof that the apprehended damage, will, if 
 it comes, be very substantial. 
 
 In Allgood v. Mervyhent and Darlington Raihvay Railway 
 Company (33 Ch. D. 571), the Court granted an in- company, 
 junction at the instance of an unpaid vendor of lands 
 to restrain a railway company from running trains over 
 the land — and this notwithstanding the probable incon- 
 venience to the public, who were treated as having no 
 rights as such against an unpaid vendor. 21 
 
 A lower riparian owner was held not entitled, in the Riparian 
 absence of any damage, to an injunction in respect of owner, 
 water which had been taken from the river and return- 
 ed unpolluted and undiminished : 2 ' 2 Kensit v. Great 
 Eastern Railway Company (27 Ch. Div. 122). 
 
 In Little v. Kingswood Colliery Company (20 Ch. Solicitor 
 Div. 733), an injunction which had been granted to re- and client, 
 strain a solicitor from acting for the antagonist of his 
 former client, was on appeal dissolved by consent, the 
 solicitor undertaking not to disclose his client's secrets; 23 
 and see In re Flint, Coppock v. Vaughan (W. N. 1885, 
 p. 163). 
 
 In order to justify a committal for breach of an in- Notice of< 
 junction the order nefed not be served if the respondent injunction, 
 had notice of it aliunde and knew that the plaintiff in- 
 tended to enforce it. Notice may be given by telegram, 
 but the Court will decide whether under the circum- 
 stances the party had in fact notice of the injunction: 
 In re Bryant (4 Ch. D. 98)^ Ex parte Langley, In re 
 Bishop (13 Ch. Div. 180). 
 
 21 Mclntyre v. Story, 80 111. 127; Jarden i. P. "W. & B. R. R., 
 3 "Wharton, 502; Wilkin i>. City of St. Paul, 33 Minn. 181; Bona- 
 parte «. C. and A. R. R. , Baldwin, 205. 
 
 22 A party who has diverted water from its proper channel, 
 may be compelled by a mandatory injunction to restore it. Mc- 
 Collum v. Morrison, 14 Fla. 414; Corning v. Troy Iron Co., 40 N. 
 Y. 191; Green v. Canny, 137 Mass. 64. 
 
 28 If a person has gained possession of a secret by means of a 
 confidential relation an injunction will be granted, restraining 
 him from divulging it. Peabody v. Norfolk, 98 Mass. 452; Kerr 
 on Injunctions, 181. 
 
 31 MODERN EQUITY. 
 
(482) 
 
INDEX. 
 
 [The paging refers to the [*] pages. ] 
 
 A. 
 
 ACTION OF DECEIT, 
 
 summary of law as to, 203 et seq. 
 
 nature of, 204 
 
 rule as to e fidence, 204, 205 
 
 ADMINISTRATION OF ASSETS, 242-245 
 
 general personal estate, primary fund for payment of debts, legacies and 
 testamentary expenses, 242, 243 
 
 unless expressly or implicitly exonerated, ib. 
 rules where real estate and specific personal estate changed, ib. 
 order of application of assets in payment of debts, 243, 244 
 real estate in hands of executors, liability of for debts, 244 
 exemption of personal estate specifically bequeathed, law as to, ib. 
 portions charged on real estate, ib. 
 
 charge of testamentary expenses, includes costs of administration action, ib. 
 costs where real and personal estate administered in same action, ib. 
 
 ADMINISTRATION JUDGMENTS AND ORDERS, 319-324 
 
 former practice completely changed, 319, 320 
 
 statement of Orders by which changes made, 320, 321 
 
 statement by Court of Appeal as to effect of orders, 321 
 
 practice where creditor sues for administration of real and personal estate, ib. 
 
 title of action, 322 
 
 new Order where no accounts or insufficient acccounts rendered, ib. 
 
 no order for general administration to be made except by judge in per- 
 son, ib. 
 
 wilful default, ib. 
 
 costs, ib. 
 
 foreign creditors, 323 
 
 practice as to absent parties, ib. 
 
 claim against estates of deceased persons, ib. 
 
 application for order on further consideration when to be made at cham- 
 bers, 323, 324 
 
 ADMISSIONS", 
 
 payment into court on, 296-298 
 
 principle on which Court proceeds in ordering, 296, 297 
 
 history of successive advances in practice as to, 298 
 
 orders made on, in the pleadings or otherwise, 297 
 
 R. S. C. 1883, O. xxxil. r. 6, ib. 
 
 what have been regarded as sufficient, 297, 298 
 
 ADVANCEMENT, 
 
 presumption of, 248-252 
 
 Court in the position of a jury as regards evidence of, and will consider all 
 
 circumstances of the case, 248, 250 
 law as to purchase in name of another, 249 
 
 (483) 
 
484 INDEX. 
 
 [Thejpaging refers to the [*] pages.] 
 
 ADVANCEMENT— continued. 
 
 summary of law as to, by Jessel, M. R., 249-250 
 doctrine applies where person in loco parentis, 250 
 "where purchase is by a mother, ib. 
 cases where presumption of, has been held to arise, 251 
 rules as to admissibility of evidence, 251, 252 
 
 AGREEMENT FOR A LEASE, 135-137 
 
 effect of Judicature Act, 1873, upon, 135, 136 
 
 pdwer of disclaimer under Bankruptcy Act, 1883, extends to, 136 
 
 provisions of Stamp Act, 1870 . ' . 137 " 
 
 AMENDMENT, 302-304 
 
 leave for, generally given, 302 
 
 unless application is mala fide or other side cannot be compensated by 
 
 costs, &c, ib. 
 principle on which Court proceeds, ib. 
 not allowed, of special case after decison, 303 
 cases where, ordered or refused, 302, 303 
 general rule of Court as to, 314 
 
 APPEAL, 313-319 
 
 jurisdiction of Court as to, 394 
 
 general effect of the Judicature Act and rules, ib. 
 
 appeal is in the nature of a rehearing, 314 
 
 history of changes as to time for appealing, ib. 
 
 time for appealing, 315 
 
 final and interlocutory orders, ib. 
 
 order for foreclosure, ib. 
 
 order on summons in creditor's action for administration, ib. 
 
 judge's order always subject to, ib. 
 
 admission of evidence on, 316 
 
 rule as to extension of time for, ib. 
 
 from judgment by default, ib. 
 
 security for costs of, 316-318 
 
 for mortgagee's costs, 317 
 
 staying proceedings pending, 318 
 
 retaining fund in Court, ib. 
 
 married woman appealing in formd pauperis, ib. 
 
 altering order of court of, ib. 
 
 ARBITRATION CLAUSES IN PARTNERSHIP DEED, 82 
 See Partnership, ib. 
 
 AUCTIONEER, defaulting, 
 
 is a person in a fiduciary relationship, 7 
 
 B. 
 
 BAILEE, 
 
 mixing money with his own, 3 
 
 BANKER AND CUSTOMER, 
 
 a fiduciary relationship between, 7 
 
 BILLS OF SALE, 171-174 
 Acts relating to, 174 
 definition of, ib. 
 important cases with regard to, ib. 
 
 BUILDING SOCIETY MORTGAGEES, 
 rule as to legal estate, 170 
 
INDEX. 485 
 
 [The paging refers to the [*] pages.] 
 
 c. 
 
 CHAEITY, 
 
 Cy-pres doctrine, when applied, 23-28 
 
 principle on which Court proceeds in applying, to, 25-27 
 
 no degrees in, 27 
 
 scheme for administration of, by Charity Commissioners when set aside 
 or remodelled, 26 
 
 Court will not part with funds of, before scheme settled, 28 
 Mortmain Act, 29-34 
 
 what gifts to, are or are not within, 31-33 
 
 Railway debentures stock, not within, 29, 30 
 
 Eailway debentures probably not within, 30 
 Court of Chancey, jurisdiction of, as to, 31 
 Statutes relating to, 31-33 
 what are, 31 
 
 CHARITY COMMISSIONERS, 
 
 scheme settled by, when set aside or remodelled, 26 
 
 orders of, enforced by Chancery Division, Practice as to, 33, 34 
 
 COMPANIES, 
 
 Non-Registration of mortgages and charges given by, 54-58 
 
 provisions of Companies Act 1862, sect. 43, and penalty imposed lor 
 omission, 54 
 
 the principle is personal disability, and is not to be extended, ib. 
 bankers, not bound to see to the registration, 55 , 
 directors, when allowed to set up unregistered charge, and when not, 55-56 
 
 sub-mortgage to stranger by, held valid, 56 
 shareholders, allowed to set up unregistered charge, ib. 
 solicitors, when allowed to set up unregistered charge, and when not, 55-57 
 recent cases as to debentures, 58 
 registration of, 59-64 
 
 provision of Companies Act, 1862, as to, 60 
 
 aim and scope of the. Act, ib. 
 
 land societies, held not to require registration, 62, 63 
 
 loan society, when requiring registration and when not, ib. 
 
 mutual insurance societies, held not to require, ib. 
 
 effect of certificate of incorporation, 63, 64 
 
 COMPROMISE. See Family Arrangements. 
 practice with regard to, 21 
 
 CONSTRUCTIVE TRUSTEES. See Trustees. 
 
 CONVERSION, 
 
 by Court or trustee, 197-201 
 
 consequences of, 197-199 
 
 effect of Ackroyd v. Smithson, 198 
 
 equity for reconversion, 199 
 
 in partition actions, 199, 200 
 
 of partnership property, 200 
 
 summary of law as to, 200, 201 
 
 pr to money paid into Court under Lands Clauses Consolidation Act, 1845 
 
 201 
 of wasting securities. See Wasting Securities. 
 
 COVENANTS. See Restrictive Covenants. 
 
486 INDEX. 
 
 [The paging refers to the [*] pages.] 
 
 CKEDITORS, trust for, 16-18 
 
 trust deed for, does not of itself create a trust for any of the, 16 
 
 principles on -which decisions as to, based, 17 
 
 circumstances which may create, 18 
 
 general assignment for benefit of creditors, an act of bankruptcy, ib. 
 
 D. 
 
 DEBTORS ACT, 1869 . . 7 
 
 abolishes arrest or imprisonment for debt, ib. 
 exceptions, ib. 
 
 DEBTORS ACT, 1878, 
 
 discretion conferred on Court by, ib. 
 
 DEPOSIT, 
 
 forfeiture of. See Penalties and Fobfeituees. 
 interest on, 93 
 
 DISCOVERY OF DOCUMENTS, 290, 293 
 by interrogatories, discouraged, 290 
 history of the subject, ib. 
 
 effect of R. S. C. 1883, O. xxxi. r. 12, 290, 291 
 general practice stated, 291 
 where and when ought to be made, 291-292 
 peases where interrogatories as to documents might be allowed, 292 
 R. S. C. 1883, O. xxxi. r. 15, as to production and taking copies of docu- 
 ments. 292, 293 
 
 DONATIO MORTIS CAUSA, 122-125 
 
 law as to bills of exchange, cheques and promissory notes, ib. 
 
 gifts by way of, held valid, of bank notes, bonds, deposit notes, keys, 
 
 mortgage, policy of insurance, receipt for money, 125j 
 Roman law as to, 124 
 
 three essentials of a donatio mortis causd, ib. 
 how differing from and resembling a legacy, 125 
 and how differing from and resembling a donatio inter vivos, ib. 
 provisions of customs and Inland Revenue Act, 1881, 124 
 
 E. 
 
 EARMARK, money has no, — maxim no longer law, 3-4 
 
 ELECTION, 270-274 
 
 Basis of doctrine, 270, 271 
 
 Principle is compensation not forfeiture, 272 i 
 
 Summary of law, ib. 
 
 May be implied from acquiescence or conduct, ib. 
 
 Election by infants — practice, 273 
 
 election by married woman, ib. 
 
 right to compensation survives, ib. 
 
 applies to every kind of property, ib. 
 
 to what instruments doctrine applies, ib. 
 
 applies to exercise of powers of appointment, ib. 
 
 cases confounded with election, ib. 
 
 recent case where doctrine held not to apply, 274 
 
 EQUITABLE MORTGAGEE, 
 
 remedies by foreclosure and sale, 177 
 
INDEX. 487 
 
 [The paging refers to the [*] pages. ] 
 
 EQUITY ACTS in personam, 234-237 
 
 doctrine of Penn v. Lord Baltimore applied by the House of Lords, 
 234, 235 
 
 Statement of the law by Lord Selborne, ib. 
 
 equities with regard to land out of the jurisdiction^ when, and when not, 
 enforced, 235, 236 
 
 law by which contracts are to be construed, 236, 237 
 EXECUTORY TRUSTS, 19-23 
 
 in construing. Court subordinates language of, to intent, 19 
 
 distinguished from executed, and defined, 20, 21 
 
 arise under marriage articles and wills, 21 
 
 origin of rule as to, ib. 
 
 what words in wills create, 21, 22 
 
 F. 
 
 FAMILY ARRANGEMENTS, 207-210 
 
 may be upheld, though no rights are in dispute, 207 
 principle of previous cases extended by leading case of Williams v. Wil- 
 liams, 208 
 guantum.oi consideration not carefully regarded by Court, 209 
 full disclosures of everything material necessary, ib. 
 
 FIDEI-COMMISSA, 
 
 words by which created at Roman law, 13, 14 
 FIDUCIARY RELATIONSHIP, 
 
 bailee is in, 3 
 
 FRAUljr 
 
 takes case out of Statute of Frauds, 102 
 
 judgment obtained by, 318 
 
 misrepresentation and, 201-207 
 
 law as to repudiation of voidable contract to take shares, 206 
 
 of directors and agents of companies, 207 
 
 on a power, see Power, fraud on. 
 
 G. 
 
 GOODWILL, 
 sale of, 87-90 
 
 Labouchere v. Dawson, overruled, 87 
 definition of, 88 
 review of authorities, 87-89 
 
 INFANTS, 274-279 
 
 right of father over religious education of, 274-276 
 ante-nuptial promise as to religious education void, 275 
 position of testamentary guardian of, 276 
 statutes dealing with guardianship and custody of, 
 
 1. 12 Car. II. cap. 24 
 
 2. 2 & 3 Vict. cap. 54, Talfourd's Act, now repealed 
 
 3. 36 & 37 Vict. cap. 12 
 
 4. 49 & 50 Vict. cap. 27 
 
 provisions of, 277-278 
 other Acts relating to infants, 
 
 4 Geo. IV. c, 76 (The Marriage Act) ; 18 & 19 Vict, 
 cap. 43 (Infants Settlement Act), 278 
 practice under 18 & 19 Vict. c. 43. .279 
 making infant ward of Court, ib. 
 
488 INDEX. 
 
 [The paging refers to the [*] pages.] 
 
 INJUNCTION, 324-330 
 
 effect of the Judicature Act, 1873, sect. 25, sub-sec. 8, and principles by 
 
 which the Court is governed, 324-327 
 no general jurisdiction to restrain persons acting without authority, 327 
 undertaking as to damages, ib. 
 how applications ior may be made, ib. 
 interlocutory, nature of, 328 
 motion to discharge ex parte injunction, 328 
 enumeration of the more important cases decided in recent years, ib. 
 
 L. 
 
 LETTERS, contract by, 94-98 
 
 Post Office the agent of both parties, 98 
 
 LIFE INSURANCE, 262-269 
 
 Policy of, lien on when created, 262 et seq. 
 
 Payment into court in respect of, 264, 265 
 
 conflict among the authorities as to, 264 
 
 provisions of Judicature Act, 1873, sect. 25, sub-sec. 6. .265 
 
 present state of the law not clear, 265 
 
 Policies of Assurance Act, 1867. .266 
 
 whether policy vitiated by concealment or misrepresentation, 267 
 
 policy effected by creditor, ib. 
 
 principle of the cases on the subject, 268 
 
 special legislation with regard to, 268, 269 
 
 LOCKE KING'S ACT, 214-218 
 
 law with regard to mortgage debts completely changed by, 214 * 
 
 statement of law previous to, 215 
 
 effect of, 216 etseq. 
 
 recent decisions on the subject, ib. 
 
 M. 
 
 s 
 
 MARRIED WOMEN, 
 
 See Married Women's Property Act, 1882. 
 
 See Restraint on Anticipation. 
 
 review of cases with regard to proporty of, 232-234. 
 
 MARRIED.WOMEN'S PROPERTY ACT, 1882. .143-149 
 Repeals Act of 1870, subject to a saving clause, 144 
 review of principal sections with summary of points decided,' 144-149 
 
 MARSHALLING, 222-224 
 
 experiment tried in case of Webb v. Smith, 222 
 principle of, stated and illustrated, ib. 
 further illustrations of 223 
 widow's right to paraphernalia, 224 
 
 Court will not marshal in favour of Charity, but will give effect to direc- 
 tion to marshal, ib. 
 
 rule of Court in these cases, 225 
 
 MAXIMS ILLUSTRATED, 
 Latin : 
 Allegans suam turpitudinem, non est audiendus, 6 
 Debitor non prsesumitur donare, 257 
 expressio miius exelusio alterius, 146 
 De minimis non curat lex, 307 
 Ignorantia juris neminem excusat, 66, 69 
 
INDEX. 489 
 
 [The paging reiers to the [»] pages.] 
 
 MAXIMS ILLUSTRATED— continued. 
 Latin : 
 
 modus et conventio vincunt legum, 173 
 
 quicquid plantatur solo solo cedit, 38 
 
 Omnis nova eonstitutio futuris formam imponere debet non prseierilis, 143 
 
 MAXIMS ILLUSTRATED, 
 English : 
 
 He who seeks equity must do equity, 178 
 
 once a mortgage always a mortgage, 173 
 
 Equity acts in personam, 234 
 
 Equity regards the substance of the transaction, 171 
 
 MERGER OF CHARGES, 51-53 
 
 of charge paid off, depends on intention, express, or implied, 51 
 
 rule of law where charge is paid off (1) by limited owner; (2) by owner 
 of estate. in fee or tail, 52 
 merger with reference to a term of years, ib. 
 provisions of Judicature Act, 1873, sect. 25, sub-sect. 4, as to, 53 
 authorities on the subject of, ib 
 
 MISREPRESENTATION AND FRAUD, 201-207 
 rule of equity as to, 201-203 
 See Action of Deceit ; Fraud. 
 
 MISTAKE OF FACT, 68-72 
 
 where bond fide and mutual, either party entitled to relief, 68 
 a ground of relief, though party had means of knowledge, 69 
 release set aside on ground of, 70 
 rectification, remedy in cases of mutual, 69, 70 
 rescission, remedy in cases of unilateral, 69 
 statement of law as to specific performances in cases of, 70, 71 
 acquiescence, when not a bar to relief, 71 
 recovery of money paid under, 71, 72 
 
 line between, and mistakes in law, not so clearly drawn in equity as in 
 common law, 72 
 
 MISTAKE OF LAW, 64-67 
 
 Court will not relieve against payment of money under, unless there be an 
 
 equitable ground for relief, 64 
 payment made by executors under, 66 
 ignorantia juris neminem exeusat, application of, 66 
 
 Court will relieve where money paid to its own officers, under, ex gr. : 
 ■ trustee in bankruptcy of liquidation, 66, 67 
 
 MODERN DOCTRINES OF EQUITY, preface, p. i. 1, 2 
 
 MORTGAGE, 
 
 mortgage action, judgment in, 160-164 
 
 mortgagee may, since Judicature Acts, combine action on the covenant 
 
 with remedy by foreclosure, 160, 161 
 form of order in, settled by Court of Appeal, 161 
 mortgagee vendor accepting cheque for deposit, ib. 
 form of judgment in case of equitable mortgage, 162 
 judgment in, by default, ib. 
 practice, ib. 
 
 period or periods for redemption, ib. 
 rights conferred by sect. 15 of Conveyancing Act, 1881. and sect. 12 of 
 
 Conveyancing Act, 1882 . . 163 
 mortgagee when charged as mortgagee in possession, ib. 
 originating summons, new practice as to foreclosure or redemption by, 164 
 
490 INDEX. 
 
 [The paging refers to the [*] pages.] 
 
 MORTGAGE— continued. 
 
 equitable, of shares by deposit of transfers. 166 
 
 priorities, 167-171 
 
 legal mortgagee when postponed to subsequent equitable mortgagee, 167- 
 
 169 
 summary of authorities, 168 el seq. 
 
 principle of Northern Insurance v. Whipp (p. 167) does not apply as be- 
 tween equitable claims, 170 
 Building Society mortgagees, rule as to legal estate, ib. 
 the Court regards the substance of the transaction, 170-173 
 illustrations of principle, 173 
 consolidation, 178-181 
 
 principle on which doctrine of, is based, 178, 179 
 
 consolidation cases where doctrine applies, 179, 180 
 
 effect of Conveyancing Act, 1881, sect. 17, as to, 180 
 
 costs of redemption action where no consolidation, ib. 
 
 current of modern decisions against extension of doctrine, ib. 
 summary of decisions, 180, 181 
 sale by the Court, 175-177 
 
 jurisdiction under Conveyancing Act, 1881, sect. 25, 175 el seq. 
 mortgagee's costs, 181-184 
 
 entitled to be allowed all costs reasonably incurred, 181, 182 
 
 statement of law as to, 182, 183 
 
 mortgagee, rarely deprived of, 183 
 
 allowed only County Court costs, 183, 184 
 
 N. 
 
 NOTICE, 238-241 
 
 of a deed, when notice of its contents, 238, 239 
 
 effect of Vendor & Purchaser Act, 1874 . . 239 
 
 actual or constructive, 239, 240 
 
 notice from state of circumstances, 240 
 
 great change as to constructive notice introduced by Conveyancing Act, 
 
 1882, sect. 3 . . 240, 241 
 to make time of essence of contract, 247 
 
 NOVATION, 
 
 on dissolution of partnership, 84 
 
 by policy holders in Insurance Companies, 269 
 
 P. 
 
 PARTITION, 45-51 
 
 jurisdiction of Court as to, 46 
 copyholds, ib. 
 old law as to, ib. 
 Partition Act, 1868 . . 46-50 
 
 scope of, 47 
 
 sale under sect. 3, of, 46 
 
 reasons which might be conclusive against, 48 
 Partition Act, 1876 . . 50 
 
 service of notice of judgment under, when dispensed with, ib. 
 
 request for sale by person under disability, ib. 
 
 form of judgment in action for, 47 
 no power of Court to order, where trust for sale is subsisting, 48 
 
 secua where power of sale, 49 
 costs of, rules of the Court as to, 50, 51 
 
INDEX. 491 
 
 [The paging refers to the [*] pages. ] 
 PARTNERS, Liability of, 77-80 
 
 general law as to liability of firm for misappropriation by partner, 78 
 law with regard to liability of a firm of solicitors for default of a partner, 
 
 78-80 
 criminal liability of, 80 
 
 PARTNERSHIP, test of, 73-77 
 
 agreement to share profits and losses primd facie evidence of, 73 
 
 question of, must depend on the agreement, ib. 
 
 definition of, 74, 75 
 
 as regards third parties, 75 
 
 agency, the test of, ib. 
 
 Partnership Law Amendment Act (28 & 29 Vict. u. 86) ib. 
 
 cases on the Act, 76, 77 
 essential distinction between a company and a partnership, 60 
 return of premium on dissolution of, 81-86 
 
 general rule as to, 81 
 
 reason for rule, ib. 
 
 on ground of misconduct of party paying the premium, 83 
 arbitration clauses in deed of, 82, 83 
 dissolution of, on ground of fraud, 83 
 
 on " equitable grounds," 83 
 
 novation, 84 
 
 notice of, 85 
 continuation of, after expiration of term of, 84 
 practice as to accounts and inquiries, 85 
 actions, relating to, ib. 
 
 assigned to Chancery Division, ib. 
 
 costs in, ib. 
 
 practice, changes in, introduced by rules of the Supreme Court, 85, 86 
 
 ( PART PERFORMANCE, 98-102 
 
 principle on which cases taken out of Statute of Frauds by, 100 
 
 limitations of doctrine of, ib. 
 
 circumstances insufficient to take case out of Statute of Frauds, 101 
 
 companies and corporations, doctrine of, applies to, ib. 
 
 marriage is not, 101, 102 
 
 PENALTIES & FORFEITURES, 39-44 
 
 penalty and liquidated damages, result of cases as to, 40, 41 
 forfeiture of deposit, law as to, 41, 42 
 
 relief against, recognized and controlled by the legislature, 42 
 provisions of Conveyancing Act, 1881, as to relief against forfeiture 
 
 of leases, and cases thereon, 43 
 provisions of Settled Land Act, 1882, as to forfeiture, 44 
 
 PLEDGEE OF PERSONAL CHATTELS, 
 rights of 165-166 
 not entitled to foreclosure, 165 
 reason of rule, 165 
 nature of pledge, ib. 
 principle of Carter v. Wake distinguished and foreclosure allowed, 166 
 
 POWER, of sale, 
 
 position of mortgagee exercising, 177 
 power, fraud on, 226-229 
 
 principle that power must be exercised bond fide for end designed, 226 
 fraud not to be presumed, 225-227 
 
 summary of law on, five propositions by Lindley, L. J., 227-228 
 rules where appointment partially bad, 228 
 
492 INDEX. 
 
 [The paging refers to the [*] pages. ] 
 
 POWER— continued. 
 
 powers, classification of, 228 
 Statutes relating to, 229 
 
 PRACTICE SINCE THE JUDICATURE ACTS, 309-312 
 
 rule where there is a variance between the former practice of Courts oi 
 
 Chancery and Common Law, and no practice is laid down under 
 
 the Judicature Acts, 309-310 
 illustrations of rule that the better and more convenient practice is to 
 
 prevail, 311-312 
 
 PRECATORY TRUSTS, 13-16 
 
 not allowed to be raised when intention of testator to leave property ab- 
 solutely, 13 
 effect of old cases as to, 13-14 
 reason of the law as to, 14 
 leaning of modern decisions against, ib. 
 
 PRIVILEGED COMMUNICATIONS, 285-287 
 statement of law with regard to, ib. 
 foundation of the rule as to,- 286 
 recent decisions as to, 286-287 
 
 E. 
 
 RATIFICATION, 
 
 no action on, of promise or contract made during infancy, 134 
 
 under what circumstances there cannot be, of an invalid transaction, ib. 
 
 REAL PROPERTY LIMITATION ACT, 1874 . . 126-130 
 
 section 8 of, bars remedy of mortgagee on covenant as well as against the 
 land, 126, 127 
 
 law is the same when debt secured by collateral bond given by 
 
 mortgagor, 157, 128 
 but not where collateral bond given by surety, 1 28 
 
 REAL PROPERTY LIMITATION Act, 1.874— continued. 
 
 Section 9 of, to be read with 3 & 4 Will., IV. <.-. 27, and 7 Will. IV. & 1 
 
 Vict. c. 28, ib. 
 Section 10 and sect. 25. sub-sect. 2 of Judicature Act, 1873 . . 129 
 
 RECEIVER, 280-285 
 
 appointment of, judgment creditor may obtain, without fresh action or 
 
 suing out writ of elegit, 280-282 
 Judicature Act, 1873, sect. 25, sub-sect. 8 . . 282 
 not duly constituted until security given, ib. 
 appointment of interim, ib. 
 
 endorsement of writ for, ib. 
 originating summons, may be appointed under, 283 
 power to appoint under Conveyancing Act, 1881, sect. 19 ib. 
 order appointing, may be made by judge at Chambers, 285 
 treated as trustee of money in his hands, ib. 
 practice, ib. 
 review of principal decisions as to, 282-285 
 
 RECOVERY OF LAND. 
 
 discovery in action for, 288-289 
 
 rule established by Lyell v. Kennedy, 288 
 
 previous practice, ib. 
 
 statement of law by Lord Bramwell, 289 
 
INDEX. 493 
 
 [The paging refers to the [*] pages.] 
 RECTIFICATION, 
 
 specially assigned to Chancery Division by sect. 34 of the Judicature Act, 
 1873 . . 69 
 
 cases as to, 69-70 
 
 practice as to, 70 
 
 not excluded by enrolment under the Fines and Recoveries Act, ib. 
 RELEASE, 
 
 set aside on the ground of mistake, 70 
 
 general words in limited, ib. 
 
 REPRESENTATION, estoppel by, 101 
 
 RESTRAINT OF TRADE, covenants in, 89-90. 
 principle on which law based, 89 
 summary of law as to, 89-90 
 
 RESTRAINT ON ANTICIPATION, 
 removal of, 230-234 
 
 new power as to, conferred on Court by Conveyancing Act, 1881, sect. 
 39 . . 230 
 
 effect of, 231 
 history of doctrine of, 231 
 
 RESTRICTIVE COVENANTS, 138-142 
 doctrine of Tulk v. Moxhey, 138 
 cases in which recognized, 139 
 
 does not extend to covenants to lay out money or do any other act, 138, 141 
 line of cleavage between old authorities and latter decisions, 141 
 cases where covenant held to be unusually restrictive, ib. 
 
 RESULTING TRUST, 
 
 presumption of, when purchase in name of another, 249 
 
 to what cases applicable, ib. 
 
 principle does not apply when purchase to defeat the policy of the law, ib. 
 
 presumption of advancement, law summed up by Jessel, M.R., ib. 
 
 in what cases arises, 251 
 
 RETAINER BY EXECUTOR OR ADMINISTRATOR, 156-159 
 
 bo right of, where, if debt vested in another person no action could be 
 
 maintained, 156, 157 
 rule as to, ib. 
 
 not altered by 32 & 33 Vict. c. 46 . . 157 
 
 exception to, with regard to debts barred by Statute of Limita- 
 tions, ib. 
 right of, never assisted, ib. 
 principle of, discussed, 158 
 put an end to by appointment of receiver, 157 
 not affected by Judicature Act, 1875, sect. 10, 158 
 heir or devisee has no right of retainer, 159 
 not lost by commencing action for administration, ib. 
 no right of retainer by executor against real estate, ib. 
 right of, limited, ib. ' 
 
 balance order under Companies Act, 1862, does not destroy, ib. 
 
 RETURN OF PREMIUM, 81 
 
 See Partnership, ib. 
 REVERSIONERS, dealings with, 130-134 
 
 Court has jurisdiction to relieve against unconsionable bargains, ib. 
 
 history of law as to, 130, 131 
 
 Sales of Reversions Act, provisions of, 132, 133 
 
 present state of the law as to, 133, 133 
 
494 INDEX. 
 
 [The paging refers to the [*] pages. ] 
 
 s. 
 
 SALES OP REVERSIONS ACT (31 Vict. c. 4), 
 provisions of, 132, 133 
 
 SATISFACTION, 253-258 
 
 founded on presumption against double portions, 253 
 presumption of, may be rebutted, 253, 256 
 parol evidence admissible to rebut, 254 
 definition of, 255 ■ 
 
 arises generally under one of two states of circumstances, 255, 256 
 what is a portion, 257 
 of debt by legacy, ib. 
 
 SCANDAL, 299-301 
 
 principle of decisions and reason of rule as to, 299, 300 
 
 definition of, 300 
 
 modern decisions on the subject of, 300, 301 
 
 new provision as to costs, 301 
 
 SERVICE OUT OF THE JURISDICTION, 304-307 
 
 R. S. C. 1813, O. XL r. 1 reverses old practice and supplies complete code 
 as to, 304-306 
 enumerate seven cases in which service out of "jurisdiction may be 
 allowed, 305 
 discretion of the Court, 305, 306 
 
 documents which may and may not be served outside the jurisdiction, 306 
 time allowed in, 306, 307 
 
 SETTLED LAND ACTS, 149-156 
 
 scope of Settled Land Act 1882 . . 150 
 terms in Act which have special meaning — 
 
 settlement, 150 
 
 estate of interest, ib. 
 
 land, 151 
 
 tenant for life, ib. 
 
 trustees of settlement, 151, 152 
 cases where imperative to apply to the Court, 152 
 cases where option of dealing with the trustees of the settlement or going 
 
 to the Court, 152, 153 
 practice under, 153 
 
 investment and application of capital money, ib. 
 summary of points decided under the Settled Land Act, 154-156 
 
 SETTLEMENTS, voluntary, 218-221 
 
 may be set aside without proof of actual intent to defraud, 218, 219 
 
 effect of 13 Eliz. c. 5, ib. 
 
 contrasted with settlements for value, 220, 221 
 
 provisions of Bankruptcy Act, 1883, as to, 221 
 
 SOLICITOR, 
 
 liability of firm for default of partner, 78-80 
 
 breach of trust by, 109 
 
 not to be made party to action merely for purpose of discovery or costs, 110 
 
 solicitor-trustee, 
 
 costs of, 184-189 
 
 general rule as to, 184, 185 . 
 
 profit costs allowed in respect of summons for maintenance, 
 
 185, 186 
 cases where allowed under special circumstances, 187, 188 
 disallowed, 186-188 
 
INDEX. 495 
 
 [The paging refers to the [*] pages.] 
 SOLICITOR— continued.- 
 
 defending action in person allowed costs, 189 
 key to true view of law of costs, ib. 
 solicitor and client, 189-192 
 
 confidential relationship, 189, 190 
 rule as to purchases by, from client, 190 
 
 limitation of, 191 
 gifts to, by client, 191, 192 
 charge in favour of, 193-197 
 
 Solicitors Act, I860, confers discretionary power to create, 193, 194 
 
 is in the nature of salvage, 194 
 
 summary of law as to, 194 et seq 
 
 solicitor entitled to, though discharged before trial, 195 
 
 practice as to, 196 
 discharging himself, position of, ib. 
 lien of, on papers, etc, ib. 
 
 how distinguished from statutory lien, ib. 
 
 rule as to, ib. 
 of trustee, position of, 197 
 
 costs where action commenced without authority, practice since Judicature 
 Acts, 309-311 
 
 SPECIFIC PERFORMANCE, 
 law as to, 94-102 
 contracts by correspondence, ib. 
 
 Courts have gone far enough in "spelling out," 97 
 where purchase-money payable by instalments, 102 
 remedy is mutual, ib. 
 
 law as to enforcing or refusing in cases of mistake, 70, 71 
 see Part Performance. 
 
 STATUTE OF FRAUDS, 
 
 provisions as to creation, &c, of trusts, 12, 249 
 
 applies to freeholds, copyholds, and leaseholds, but not to personalty, 12 
 
 requirements, how satisfied, 13 
 
 case taken out of, by fraud, 102. 
 
 STATUE OF LIMITATION, 128 
 
 and see Real Property Limitation Act, 1874. 
 
 SURETIES, 
 
 contribution among, 259-261 
 
 principle is equality of burden and benefit, 259 
 
 must bring all benefits into hotchpot, 260 
 
 this equity may be varied or departed from, 
 
 by renunciation, ib. 
 
 by estoppel, ib, y 
 
 rule where some of the sureties are insolvent, ib. 
 surety satisfying judgment debt, ib. 
 Mercantile Law Amendment Act, 1856, ib. 
 
 judgment or award against principal debtor, not binding on surety, 261 
 law as to rescission of contract on ground of non-disclosure, ib. 
 circumstances which discharge surety, ib. 
 
 T. 
 
 TESTAMENTARY EXPENSES, 
 
 include costs of an administration action, 244 
 
496 INDEX. 
 
 [The paging refers to the [•] pages.] 
 
 TRIAL, place of, 293-296 
 
 general right of plaintiff to name, 293 
 
 discretionary power of Court to change, 294, 295 
 
 must be named in original statement of claim, 295, 296 
 
 TRUST, 
 
 declaration of, 8-13 
 
 when complete, examples of, 9 
 executed in favour of volunteer, is irrevocable, 10 
 assignments on, ib. . > 
 
 Judicature Act, 1873, sect. 25, sub-sect. 6, effect of as to, ib. 
 precatory, 1 3-16, and see Peecatoey Trusts. 
 Statute of Frauds, provisions of as to creation, &c, of, 12, 13 
 resulting. See Advancement. 
 
 TIME the essence of the contract,, 245-247 
 statement of law by Lord Cairns, 245 
 principle on which Court proceeds, 246 
 review of principal cases on the subject, 246, 247 
 Judicature Act, 1873, sect. 25. .246 
 tendency of modern decisions, 247 
 law as to notice, ib. 
 
 TRUSTEES, 
 
 who may or who may not be, 11 
 
 aliens may be, ib. 
 
 bankrupts may be, but bankruptcy ground for removal, ib. 
 
 Bank of England cannot be, ib. 
 
 Cestui-que trusts should not be appointed, 12 
 
 corporations, municipal, may be, 11 
 
 infants should not not be appointed, 12 
 
 married women may be, ib. 
 
 National Debt Commissioners may not be, 11 
 
 exceptions, ib. 
 relatives should not be appointed, 12 
 
 Conveyancing Act, 1881, provisions of, as to appointment of, ib. 
 Conveyancing Act, 1882, appointment of separate sets of, under, ib. 
 distinction between directors and trustees, 61 
 rule as to delegating his trust, 103 
 when he may employ agents, ib. 
 rule in ex parte Belcher, 104 
 
 limitations of, ib. 
 indemnity for, under Lord St. Leonard's Act, 104, 105 
 investments authorized by law,106 
 rules with regard to investments proper to, ib. 
 application to Court for advice, ib. 
 constructive^liability of, 107-111 
 
 principle extends to all agents for trustees, 108 
 discretion of, controlled by Court, 111-114 
 
 summary of law as to, 112-114 
 
 as to appointment of trustees, 113 
 
 practice as to, ib. 
 
 when ''absolute'.' or uncontrollable, 114-117 
 
 Court will not interfere in the absence of bad faith, 114 
 allowances to lunatic, 115, 116 
 review of cases, 115 el seq. 
 costs and expenses of, 118-121 
 
 properly incurred, a first charge on income and corpus of trust estate, 
 118, 119 
 
INDEX. 497 
 
 [The paging refers to the [*] pages.] 
 TRUSTEES— continued. 
 
 bringing action under advice of Counsel, 119 
 
 priority of, where action brought against trustees under creditor's 
 
 trust deed, 121 
 out of pocket, allowed, ib. 
 right of, to indemnity, 119, 120 
 must not "sever" in their defence, 120 
 exceptions to the rule, ib. 
 
 TRUST FUNDS, 
 
 right to follow, 1-7 
 summary of law as to, 2-3 
 
 defeated by purchase for value without n<- r jp, 4-5 
 defeated, where trust is for a fraudulent p::ipas3, 5 
 
 contest between ceslui-que trusts determined according to priority in 
 time, 4 
 
 VALUE OF SUBJECT-MATTER OF CLAIM, 307-309 
 rule where under £10 .. 307 
 former practice of Court of Chancery, ib. 
 cases in which smallness of amount involved has been discussed, 308-309 
 
 VENDOR AND PURCHASER ACT, 1874 .. 91-93 
 object of, 92 
 practice under, ib. 
 time for appealing under, ib. 
 questions decided under, 93 
 
 VOLUNTARY GIFT OR SETTLEMENT, 8-13 
 creation of, 
 
 former conflict of authority as to, 8 
 summary of present law as to, 9, 10 
 
 w. 
 
 WASTE, equitable, 34-39 
 
 principles on which the Court interferes in respect of, 34, 35 
 
 ameliorating, 38 
 
 permissive, ib. 
 
 tenant for life, without impeachment of, 35 
 
 effect of Judicature Act, 1873, sect. 25, sub.-sec. 3, as to rights of, in 
 respect of, 38, 39 
 mines and quarries, 38 
 
 whether opening and working amounts to, ib. 
 
 WASTING SECURITIES, 
 conversion of, 211-213 
 review of cases, 212-213 
 rule of Howe v. Earl of Dartmouth stated by Court of Appeal, 211 
 
 to be applied unless sufficient indication of contrary intention, 211- 
 212 
 
 32 MODERN EQUITY. 
 
Phila. : The Blackstone Pub. Co. 
 
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