(EnnipU IGaiu ^rhnnl ICtbrary iHai-Hl)all lEiiuitg (EoUcrttan (6tft of t. 3). iHarshall, IC. IC. iH. 1334 lOKNl I L .iNiH KM l^ I IBRAKY 3 1924 084 257 496 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084257496 EQUITY UNDER THE JUDICATUEE ACT, OR THE WITH AN CONTAINING THE HIGH COUHT OF JUDICATUEE ACT, 1873, AND THE BY CHALONER WILLIAM CHUTE, BARRISTER-AT-LAW ; FELLOW OF MAGDALEN COLLEGE, OXFORD ; LECTUKEK TO THE INCORPORATED LAW SOCIETi" OF THE UNITED KINGDOM. LONDON : BUTTERWOETHS, 7, FLEET STREET fata publisljcrs to tht ^nttn's most Eralkirt Ipajcsfj). DUBLIN: HODGES, FOSTER & CO. EDINBURGH: T. i T. CLARK; BELL & BHADFIITE. CALCUTTA: THACKER, SPINK Sc CO. BOMBAY: THACKER, VINING & CO. MELBOURNE : GEORGE ROBERTSON. 1874. t. J. i^lSHILL PRINTED BY C. EOWOETH AND SONS, NEWTON STESET, W.C. THIS WORK IS, BY PERMISSION, MOST GRATEFULLY INSCRIBED TO FEANCIS THOMAS BIRCHAM, PEESIDENT OF THE THBODGH WHOSE « KIND ENCOURAGEMENT AND INFLUENCE THE LECTURES UPON WHICH THE FOLLOWING WORK IS FOUNDED WERE UNDERTAKEN AND DELIVERED. a2 INTRODUCTION. At no period has the progress of Equity Jurispru- dence as a science been so rapid and so remarkable as during the last few years of its separate existence; the Reports for those years contain a series of valu- able judgments delivered by Lord Hatherley, Lord Cairns, Lord Selbome, Sir Gr. Giffard, Sir J. Rolt, Sir W. James, Sir J. Wickens and Sir G. Jessel, which have settled, expounded and illustrated most of the important doctrines of Equity in so clear and admirable a manner that it is now a comparatively easy task to define and expound, in a few lines, doctrines and principles which formerly, after pages of descriptions and the citation of numerous cases, could only be pronounced to be still unsettled and obscure. I may refer for examples to the foUowing judg- ments, from each of which (to apply the words of Justice "WOles in Hinton v. Sparkes, L. E., 3 C. P. 166) a ftiller view of the cases and of the principles and reasoning applicable to them is to be found than in aU the books put together : — Richards v. Delbridge (p. 32, post), as to the creation of voluntary trusts ; Hall V. Hall (p. 37), as to the effect of the absence of a power of revocation from a voluntary settlement ; VI INTEODUCTIOlir. Topham v. Duke of Portland (p. 54), on the con- nection between fraud on a power and the general doctrine of undue influence ; Earl of Aylesford v. Morris (p. 57), on unconscionable bargains ; Beall V. Smith (p. 66), on the Chancellor's jurisdiction in lunacy; Andrews v. Salt (p. 70), on the jurisdiction over infants ; Bain v. Sadler (p. 93), as to equitable assets; FothergiU v. Rowland (p. 115), as to the specific performance of contracts; Mackenzie v. Coulson (p. 143) and Druifi" v. Lord Parker (pp. 125, 147), as to rescission and rectification of instru- ments for mistakes ; and Elmer v. Creasy (p. 188), as to the discretion of the Court in enforcing dis- covery and production of documents. It seemed that a sketch of modem Equity Jurisprudence which should bring into the fore- ground these admirable expositions of the most prominent features, and illustrate by their aid the general outlines of the subject, might not at this moment be superfluous. My ^rst aim, therefore, has been, not to enter into such details of administration as the Adjustment of Partnership Accovmts, the Redemption and Fore- closure of Mortgages, Conversion, Reconversion, Election, and the like, for which the volumes of Lindley, Fisher, Seton and Lewin, are scarcely sufficient, but to point out concisely the principles on which aU the doctrines depend, and to illustrate INTEODUCTION. Vll fiilly the rules of Equity which commonly cause difficulty to the uninitiated, such for example as Rescission of Contracts by mistake, and the alleged violation of the Statute of Frauds in connection with Specific Performance. Secondly, I have attempted the task of defining the relation of Equity to the Common Law. The practical effect of the Supreme Court of Judicature Act is to reunite Equity to the Common Law, firom which it has been for 500 years un- naturally divorced, to strengthen and harmonize by such reunion its concurrent jurisdiction, and to sim- plify and consolidate its exclusive jurisdiction. This, therefore, seemed a fitting opportunity to endeavour to trace the points of contact between the two systems ; and I have accordingly attempted to trace back the tangled streams of Equity juris- prudence to their two diverse and principal sources — (1) the trust, the creature of Equity, which has developed into a system of administration altogether separate fi:om the rights and remedies of Coinmon Law; (2) the powerful preventive and mandatory procedure of the Court of Chancery which induced suitors for the sake of the remedy to bring Common Law rights into Chancery. I have attempted thus to bring out the relation which Equity bears to the Common Law, and to Vlll INTRODUCTION. show that it nerer did and wUl not now assume in any way to alter and correct the principles and doc- trines of the Common Law on common law sub- jects; that it has indeed undertaken the humbler function of occupying a region (that of trusts) which the Common Law had left unoccupied ; and that in cases where it did and does provide a remedy which the Common Law could not provide, it always respected and followed the Common Law in aU points except the remedy. I have, I hope, succeeded in showing that, while in respect of trusts (which are thus outside the Common Law) Equity has, no doubt, assumed to carry out the "intention of the parties" to "leave no wrong without a remedy," and to "soften the rigour of the Common Law"; in respect of all other rights Equity follows the Common Law, and only gives greater effect to its remedies. So that the fusion which is now decreed by the Legislature will not be a mingling in confusion of two systems differing in principle as well as in procedure, but a reuniting, in one connected framework, of two systems, which by the accidents of history have for five hundred years been separated from each other to the disadvantage of both. TABLE OF CASES. PAGE Abinger (Lord) v. Ashton . 116 Ackroyd v. Smithson . . 102 Adams v. Fisher . . . . 185 Agar V. Fairfax . . . . 20 Aldrich v. Cooper . . . . 97 Alexander v. Alexander . . 54 Aleyn v. Belcher . . . . 54 Amherst's Trasts . . . . 78 Ancasteri Duke ofj D.Mayer 96 Andrews v. Salt . . . . 70 Anon. . . . . • • 87 Antrobns v. Smith . . 34 Ashburner v. Macgnire . . 99 Att.-Gen. v. Colney Hatch Lunatic Asylum . . 17.S Ayles V. Cox . . . . 129 Aylesford (Earl of) v. Morris . . . . . . 57 Aylwin's Trusts . . . . 78 B. Bain v. Sadler . . . . 93 Bai-clay v. Messenger . . 128 Bassett v. Nosworthy . . 64 Batchelor (Ke) .. ..85 Bateson v. Gosling . . 107 Bayspoole r. Collins . . 36 Beall V. Smith . . 66, 68 Beckett D. Buckley .. 61 Bellairs v. Bellalrs . . 101 Betts t>. Burch .. ..131 Bevfus «. Bullock . . 36, 162 Bil'lson V. Crofts . . . . 78 Birch Wolfe I!. Birch .. 171 Bloomer v. Spittle . . Boyse v. Rossborough Briggs V, Penny . . Brown v. Gellatly. . Browne's "Will (Re) Brownsword v. Edwards Brunswick (Duke of) King of Hanover PAGE .. 144 .. 193 .. 46 .. 103 .. 79 .. 183 V, 168 62 163 188 103 57 100 182 173 C. Caballero v. Henty Carrow v. Ferrier . . Carver v. Pinto Leite . . Charlton v. Durham (Earl of) Chesterfield v. Janssen . . Chichester v. Coventry — ■ — — — V. Donegall City of London Brewery case Clark V, School Board for London . . . . . . 19 Clover 1J. Royden .. .. 19 Codrington v. Lindsay 101, 102 Colborne and Strawbridge (Ex parte) .. ..64 Commissioners of Sewers «. Glasse.. .. 170,182 .. 138 .. 36 45 61 127 107 Cooper V. Phibbs Cornish v. Clark . . Coverdale v. Eastwood Cowbridge Rail. (Re) Cowles V. Gale Cragoe v. Jones . . a 5 TABLE OF CASES. PAGE Crampton v. Varna Kail. . . 117, 120 Craven v. Brady . . . . 74 Crossley v. Lightowler . . 173 Cuddee v. Butter . . . . 113 D. De la Tonche's Settlements 150 Bering v. Winchelaea (Earl of).. .. 14,15,105 Dixon V. Holden . . . . 6 Dolphin V. Aylward .. 36 Draifi V. Lord Parker 125, 147 Dngdale v. Dngdale . . 95 Buncombe v. Greenacre . . 82 Dyer v. Dyer . . . . 27 Dyke's Estate (Re) .. 151 E. Edwards (Ex parte) . . 19 (Re) .. ..78 Elibank (Lady )«.Montolieu 82,83 Elliot V. Merriman . . 89 Elliott's Trusts (Re) . . 40 Ellis V. Barker . . . . 50 V. Silber . . . . 161 Ellis's Trusts .. ..77 Ellison V. Ellison . . . . 76 Elmer v. Creasy . . 186, 188 Erskine v. Adeane . . 90 Evans v. Bremridge . . 165 Eyre v. Countess of Shaftes- bury i 69 E. Fells «. Read .. ..114 Ferguson v. Gibson . . 92 Fletcher v. Ashburner . . 102 Flight 1). Booth . . . . 128 Forbes v. MofEatt . . . . 105 Fothergill v. Rowland . . 1 8, 115, 119, 122 Fox V. Mackreth . . . . 49 France v. France . . . . 106 G. PAGE Garth «. Colton . . 171, 172 ^ V. Townsend . . 151 Gibbins v. Eyden . . . . 97 GifEard «i. Williams .. 21 Girdlestone v. N. B. Mer- cantile Insurance Co. . . 179 Gladstone ■». Musnrns Bey 158 Glenorchy (Lord) v. BosvUle 88,39 Goldsmid ■». Tunbridge Wells Commissioners . . 173 Gourley v. PlimsoU 180, 183 Graham ». Johnson . . 145 Great Western Rail. v. Tucker 188 Green v. Wynn . . . . 107 Guest v. Cowbridge Bail. . . 61 Hall V. Hall Hamilton v. Hector HSmmerslcy ■». De Biel Harding «.,Glyn .. (Ex parte) .. 37 .. 70 .. 45 .. 37 .. 59 .. 185 135, 146 .. 173 .. 154 .. 61 .. 175 Hardman v. Ellames Harris v, Pepperell Harrison v. Good . . Harvey v. Hall Hatton V. Heywood Haygarth v. Wearing Heathcote v. North Stafford- shire Rail. Co. . . 122, 158 Helling v. Lnmley . . 8 Hensman v. Fryer. . . . 95 Hepworth v. Hepwoiih 27, 99 Herman v. Hodges . . 114 Hervey ;;. Smith . . . . 167 Higgs V. Dorkis . . . . 106 Hill'tf. Hibbit .. ..193 V. Lane . . . . 43 V. Wilson . . . . 175 Hindson v. Weatherill . . 52 Hinton v. Sparkes . . . . 132 Holden (Henry's) case . . 63 Holland (Ex parte) Be Heneage . . . . . . 87 Hopgood V. Parkin . . 41 TABLE OP CASES. PAGE Howard v. Earl of Shrews- bury 166 Huguenin v. Baseley 51, 56 Hnlme ». Tenant .. .. 76 Huntingdon v. Huntingdon 151 Hurst V. Beach . . . . 27 Imperial Land Co. of Mar- seilles (Ee) . . , . 64 Inchbald v. Robinson . . 173 James «. Lichfield.. .. 62 Jenner v. Jenner . . . . 56 Johnson v. Gallagher • ■ 86 Jones -B. Bradley . . 47, 178 V. Gregory . . . . 193 V. Lloyd . . . . 67 K. Kaye (Re) . . Keech v. Sandford Kekewich v. Manning Kellock's case Kelsey v. Kelsey . . Kent V. RUey 69 49 34 207 164 36 L. . Lake v. Craddock . . . . 28 Lamb r. Eames . . . . 37 Lancefield v. Iggulden . . 95 Latham v. Chartered Bank of India . . . . . . 18 Lea V. Whitaker . . . . 132 Leech v. Schweder . . 173 Lehman «. M' Arthur . . 8 Le Nere v. Le Neve . . 63 Lester v. Eoxcroft 123, 124 Levy V. Crichton . . . . 36 Lilford V. Keck . . . . 97 PAGE Liverpool Marine Credit Co. V. Hunter 158 Lloyd V. Attwood . . 36 v. Lloyd 101 V. Loaring . . 115 Lockett 1). Lockett 186 London and N. W. Rail. v. Lancashire and Yorkshire Rail 167 Lovett V. Lovett . . 193 Lumley v. "Wagner 118 Lyon V. Home 57 M. Mackay v. Douglas Mackenzie v. Coulson Macki-eth v. Symmons M'Cormick v. Grogan Magee v. Lavell . . Martin v. Powning Maxfield v. Burton Miller v. Knox Milroy v. Lord Minet i\ Morgan . . Morgan v. Matteson Morley v. White . . Murray v. Lord EUbank 36 143 97 46,48 132 160 62 1.55 33 184 31,32 160 82 Nokes V. Gandy . . . . 160 Norris (Ex parte).. .. 41 Northern Assam Tea Co. (Re) 64 O. Owen V. Delamere. . Owens V. Dickenson Oxford's (Earl of) case P. Palmer v. Flower .. 87 7,43, 157 101, Peacheyi). Earl of Somerset 130 TABLE OF CASES. PAGE Pearce v. Pearce . . . . 184 Peek V. Gnmey . . . . 90 Pemberton i). Barnes . . 106 Penn v. Lord Baltimore . . 157 PeiTin «. Blake .. ..38 Perry-Herrlck v. Attwood . 36 Phillips V. Miller . . . . 62 Picard v. Hine . . . . 86 Pickering v. Stephenson . . 164 Portland (Dnke of) v. Top- ham . . . . . . 65 Powell Dnffryn Steam Coal Co. I). TafE Vale Rail. Co. 118 Powell ». Smith .. ..142 Prides-. Bnbb .. ..77 Prole®. Soady .. 80,81 Prudential Assurance Co. v. Thomas 161 Pusey V. Pusey . . . . 114 Pye (Ex parte) . . 34, 100 E. Kamsden v. Dyson . . 16 Kees V. Berrington . . 106 Rex «. Almon .. .. 155 Rice 1). Rice . . . . 64 Richards v. Delbridge . . 32 Richardson v. Richardson . 32 Robinson v. Pett . . . . 49 Rodger v. Comptoir d'Es- compte de Paris . . 64 Rogers v. ChaUis . . 113, 114 Eooper v. Harrison . . 60 Rose V. Watson . . . . 110 Rowley v. Adams . . . . 99 Ryall V. Rowles . . 58, 59, 63 S. SauU «. Brown Scott V. Tyler Seagram v. Knight Selby V. Nettlefold Seton V. Slade Sewell (Re) .. 188 .. 101 .. 172 .. 18 .. 127 •• 103 ^ewers (Commissioners of) V. Glasse., .. 170,182 PAGE Sharp V. Pry .. 86 Shaw V. Foster .. 110 Silk V. Prime 93,95 Skilbeck D.Hilton.. .. 144 Slim V. Croucher . . .. 43 Small 1). Attwood . . .. 141 Smith v. Brownlow .. 169 . ■ V. Wegnelin . . .. 158 Somerset (Dnke of) v Cook- son .. 114 South Blackpool Hotel Co.'s case .. 64 Spencer (Earl) v. Peek . . 191 Springhead Spinning Co. v. Riley 6 Stanford «. Hurlstone .. 19 Stapilton v. Stapilton . . 56 Steele «. Metropolitan Rail. Co 158 Stock «. M'Avoy . . . . 27 Strathmore (Countess of) v. Bowes 73 Streatfield v. Streatfield . . 102 Stretton v. G. W. R. Co. 6, 171 Sturgis V. Champneys . . 82 Sumner v. Powell . . . . 151 Sutton v. Wilders . . . . 41 T. ■Talbot (Earl) ®. Hope Scott 166 Tayleur (Re) . . . . 192 Taylor v. Meads . . Tidd «. Lister 77 84 Tilleyi)., Thomas . ToUett v. ToUett . . 127 151 Top ham «.Duke of Port- land.. 63,54 Duke of Portland 55 Torrance «. Bolton 139 Townshend (Marquis of) v. Stangroom Trappes v. Meredith Tyler®. Yates 125 78 57 u. United States v. Prioleau . . 158 TABLE OF CASES. Xlll PAGE Vane (Earl) »i. Rigden . . 91 Vansittart «. Vansittart .. 113 Vaughan r. Vanderstegen 86 Victoria Permanent Build- ing Society (Re) . . .. 136 W. Walker v. Brewster . . 173 Walter v. Selfe . . . . 173 Ward V. Wolverhampton Waterworks Co. ..128 (Re) 101 Warde r. Warde . . . . 72 Warrick v. Queen's College 168, 182 Wason V. Wason . . . . 84 Wellesley v. Duke of Beau- fort 65 White ». Barker .. ..187 B.White .. ..150 PAGE Whitney v. Smith . . . . 50 Whittle V. Henning . . 85 Wilcocks V. Wilcocks 29, 100 Wilkinson v. Joberns . . 106 Wilson V. Northampton and Banbury Junction Rail- way .. .. .. 116 WolverhamptonandWalsall Rail. Co. v. London and North Western Rail. Co. 118 Wooldridge v. Norris . . 134 Woollam V. Heam . . 125 Wyatt V. Coope . . . . 67 Wycombe Railway v. Don- nington Hospital . . 137 Yates v. Jack . . . . 173 York (Mayor of ) v. Pilking- ton 169 TABLE OF CONTENTS. CHAPTER I. " EQUITY FOLLOWS THE LAW." PAGE There is no conflict in principle between Equity and Common Law 1,2 Where there is no trust and the Common Law remedy is not inadequate, Equitj' follows the Law . . . . . . 2 Meaning of the phrase " Equity follows the Law" . . . . 2 Equity, a portion of law accidentally severed from the Common, Lam .. .. .. .. .. .. .. .. 3 The separate jurisdiction dates from Richard IL, fiye hundred years ago . . . . . . . . . . . . . . 3, 4 The Court of Chancery then provided a better remedy for matterg remedial at Common Lam .. .. . . 5 Court of Chancery a defence against intimidation . . . . 5, 6 Different opinions of three Lord Chancellors as to the relation of Equity towards the Common Law . . . . . . 7 " Hard cases" no longer make bad law in Chancery . . . . 8 Administbative Equity follows the analogy of law as to trusts and equitable interests, so far as the law provides an analogy . . . . . . . . . . . . . . 9, 10 And follows the law as to other rights while it adjusts them . . 10 Remedial Equity follows legal principles as to contracts and torts, except where there is a t7-v,st, but in proper cases gives better relief .. .. .. .. .. 10,11 Trusts are outside the Common Law, e.g., equitable assets . . 11 Rights not outside the Common Law Equity does not alter but adjusts, e.g., marshalls assets and surety's rights . . . . 13 Maxims apparently opposed to the rule that Equity follows the Law (1> Equity is equality ; (2) suffers no wrong to be without a remedy ; (3) he who seeks equity must come with clean hands ; (4) must do equity . . . • 14 — 16 A Court of Equity is not a Court of honour . . . . . . 17 XVI TABLE OF CONTENTS. ChAPTBE I. — continued. PAGE Equity has exclusive jurisdiction over trusts — concurrent jurisdiction over other rights by giving a different remedy 17 Fusion partly efEected already by Common Law questions coming into Equity . . . . . . . . • • 17 — 19 Lord Cairns and Sir John Eolt's Act 19, 20 Inconvenience of double jurisdiction partition, Gififard v. Wil- liams (L. R., 5 Ch. 546) 21 Inviolability of the trust reasserted by Judicature Act . . 22 CHAPTER 11. TEtrSTS. Trusts differ in principle from Common Law rights . . . . 23 As to them Equity regards the substance and not the letter merely . . . . . . . . . . . . . . . . 23 ^quitas agit in personam . . . . . . . . . . 24 Trusts exemplify the maxim, " Equity suffers no right to be vrithout a remedy " . . . . . . . . . . . . 24 (a) Express trusts are within sect. 7 of Statute of Erauds 25 Tetjsts implieb or constructive are excepted by sect. 8 . . 25 (a) Resulting uses and trusts . . . . . . . . 26 Purchase in the name of another. Dyer v. Dyer (1 White & Tudor) 27 (b) Joint tenancy of partnership property a constructive tenancy in common in Equity . . . . . . 27 Xake B. Craddock (1 White & Tudor) . . . . 28 Maxim " Equity is equality," illustrated . . . . 28 Clause in mortgage where mortgagees are trustees 29 (c) Presumption in favour of performance of obliga- tion, Wilcocks 0. Wilcocks (Rep. 2 White & Tudor) 29,100 Express trusts 30 Voluntary trust, when created . . . . . . . . 30 Difference between transaction amounting to — (a) " This is henceforth yours," coupled with the most complete transfer, legal or equitable, that can be made, Ellison v. Ellison (1 White & Tudor) . . 31 (b) " I will give this property to you," and equivalent expressions . . . . . . . . , . 33 — 35 TABLE OF CONTENTS. XVll Chapter II. — continued. PAGE Trust depending on representation amounting to engagement 35 Voluntary trust of realty or personalty when void as against creditors (_ernbarrassinent of settlor) . . . . . . 35 Voluntary trusts of realty when void as against purchasers, 27 Eliz. c. 4 (Fraudulent Conveyances) .. .. ..36 Voluntary deed, without powers of revocation, when voidable by settlor . . . . . . . . . . . . . . 37 Creation of trust by precatory words, Harding v. Glyn (Rep. 2 White & Tudor) 37 Ponier in nature of a trust .. .. .. .. ..37 Creation of trust by executory instrument . . . . . . 37 Lord Glenorchy v. Bosville (1 White & Tudor) . . . . 38 Trustee Relief Act, costs of unnecessary payment into Court . . 39 Trustee Act, appointment of new trustees . . . . . . 40 Lord St. Leonards and Lord Cranworth'a Acts . . . . 40 Sesponsidility oi tmsteea .. .. .. .. ..41 CHAPTER IIL EQUITABLE FEATJD. Meaning of equitable fraud (equitahle waste') .. . . 42 Fraud subject of concurrent jurisdiction, even where money damages are adequate relief.. .. .. .. ..43 (1) Fraud as it affects trusts proper— (a) Representations or engagements amounting to trusts . . . . . . . . ... . . 45 Representations on another person's marriage . . 45 Secret trust, fraud on testator . . . . . . 46 Will fraudulently obtained . . . . . . . . 47 Using Statute of Frauds fraudulently . . 47, 48 (b) Constructive fraud of trustee benefiting by trust . . 49 (2) Fraud as it affects persons in fiduciary position . . 50 Undue influence, Huguenin v. Basely (1 White & Tudor) 50,51 Solicitor and client 52 Solicitor taking gift by deed or will prepared by AiTn- self 52,53 Fraud upon a power is undue influence, Aleyu v. Belcher (1 White & Tudor) 53 xviii TABLE OF CONTENTS. Chapter III. — continued. PAGE (2) Fraud as it affects persons, kc— continued. Topham v. Duke of Portland 54 Family arro/ngementg and compromises . . . . 56 Dealings with rerersioners (31 Vict. c. 4) . . . . 57 (3) Fraud in respect of equitable assignments, Kyall V. Eowles (2 White & Tudor) 57, 58 Fraud by concealment, y^i&t is notice? .. ■• 59 Assignment of policies (30 & 81 Vict. c. 144) ... . . 59 A mortgagee of real estate not postponed for not giving notice ^^ Judgments (27 & 28 Vict. c. 112) not to be secret charges 61 Taking with actual notice of another's title . . . . 63 Notice of lease when constructive notice of its contents 62 Want of inquiry constructive receipt of notice . . . . 68 Le Neve v. Le Neve (2 White & Tudor) . . . . 63 Equitable assignments are subject to equities ■■ . . 63 Qui prior est tempore potior est jure, Eice v. Kice (2Drew.73) - 64 Legal estate where equities are equal, Bassett v. Nos- worthy (2 White & Tudor) 64 CHAPTER IV. lunatics, infants, makeied women. Protective Equity in favour of persons under disability . . 65 (1) Lunatics : Jurisdiction in Lunacy 66 Persons of unsound mind not found a lunatic . . . . 67 (2) Infants : Jurisdiction to protect ^T'oyerty of infants .. .. 69 Ward of Court, Eyre v. Countess Shaftesbury (2 White & Tudor) 69 Payment of money into Court makes Court a trustee . . 69 Parental responsibility recognized in Equity . . . . 70 Forfeiture of parental rights 70, 71 Custody of Infants Act (2 & 8 Vict. c. 54), extended by 36 & 37 Vict. c. 14 71 InfantsSettlement Act(18& 19 Vict. c. 43) .. ..72 TABLE OF CONTENTS. XIX Chapter IV.— continued. PAoa (3) Married Women : Jurisdiction oyer prope^Hy of married women where express trust . . . . . . . . . . . . 72 Marital right recognized in Equity, Lady Strathmore V. Bowes 73 Where there is trust property, Equity softens rigour of Common Law . . . . . . . . . . . . 75 (a) Trusts of settlement enforced 76 1. Separate use . . . . . . . . 76, 77 2. Forfeiture of husband's interest on bankruptcy 77 3. Covenant to settle after-acquired property 78 — 80 (b) Com-t a trustee independently of settlement . . 80 Equity to a settlement out of trust or equitable choses in action if not reduced into possession bv husband 80, 81 JH.g. out of legacy .. .. .. . . 82 Maxim : " He who comes into Equity must do Equity " 83 Equity to a Settlement as against husband's assignee 84 out of life interest . . . . . . . . 85 Equitable chose in action i)i reversion, merger for purpose of depriving wife of interest not permitted 85, 86 Married Women's Property Act 86, 87 Liability of wife for her own engagements, Vaughan v. Vanderstegen (2 Drewry) 86 Is separate property of married women equitable assets ? 87 CHAPTER V. ADMINISTRATION. Concurrent jurisdiction for purpose of adjustment or in case of trust 88, 89 Executor when a trustee ? . . . . . . . . . . ' 89 Equity follows rules of Law : actio personalis moritur 90, 91 Ti-KecntOT may prefer 01 retain debt .. .. .. 90—92 Except in case of equitable assets . . . . . . . . 93 Order of application of assets . . . . . . . . 94, 95 Exoneration .. . . . . . . . . . . . . 96 Marshalling, Aldrich v. Cooper (2 White & Tudor) . . 96, 97 In favour of legacies against vendor's lien .. .. . . 97 No marshalling against Mortmain Act . . . . . . . . 98 XX TABLE OF CONTENTS. Chapteb v. — continued. PAGE Payment of legacies , . . . . . . . • • . . 99 Provision for contingent debts and liabilities (22 & 23 Vict. c. 35 99 Legacies specific, general, demonstrative, Ashbumer «. Mac- guire (2 White & Tudor) 99 Ademption of legacies . . . . . . . . . . . . 99 Bale against double portions . . . . . . . - • ■ 100 Ademption distinguisbed from satisfaction and performance . . 100 Chichester v. Coventry (L. R., 2 H. L.) 100 Legacies on condition .. .. .. •■ •• ..101 ^.^., for purchase in army : purchase abolished .. .. 101 Equitable doctrine of election .. ,, . • . . • • 101 Distribution of residue •• .• .. .. •■ •• 102 Land converted into personalty, Fletcher v. Ashbumer, and Ackroyd v. Smithsop (1 White & Tudor) 102 Duties of trustee and executor to convert perisJiatle property 102 Carrying on trade .. .. .. .. .. .. .. 108 Joining in receipts of co-executor or co-trustee . . . . 103 Jurisdiction as to account, mortgages, apportionment, contri- bution, partnership, partition, companies . . . . 104 — 106 Sureties' release by indulgence to debtor . . . . 106 — 107 CHAPTER VI. SPECIFIC PBBFOBMANOB. Remedial Equity . . • • 108 Trust between vendor and purchaser accounts for some equit- able rules as to contracts .. .. .. .. 109—112 Inadequacy of damages is foundation of relief by way of specific performance .• .. .. .. .. .. .. 112 Court ■will grant specific performance — (a) If better than damages . . . . . . . . 113 Not of contracts as to personalty, lending of money, &c 113,114 Pusey V. Pusey; Duke of Somerset u. Cooksou (1 White & Tudor) 114 (b) Where specific performance can be carried into effect by the Court .. .. .. .. .. 117 Injunction against breach of negative agreement, Lumley v. Wagner (1 D. M. G.) 118 Not of contract to build, &c., Crampton v. Varna Railway (L. E., 7 Ch. Ap.) .. .. 120—122 TABLE OF CONTENTS. Chaptes VI. — continued. PAGE Statute of Frauds in Equity . . . . . . . . . . 123 Part performance of parol agreement takes it out of the statute, Lester v. Foxcroft (1 White & Tudor), the " con- tract being no longer i»/eri" 123 — 125 Parol variation as a defence (for " the statute says a parol contract shall not bind, not that a written contract shall bind) 125 Specific performance of contract as to land, with compensation, for there is a trust as to the land, and the statute shall not he an instrument of fraud . . .. .. ,. .. 126 Matters not of the essence of the contract, Seton v. Slade (2 White & Tudor) ; provision in Judicature Act . . . . 127 Time when of the essence : other matters held of the essence 128, 129 Forfeiture iaiij>enaltiesie\ieyed. against 129 Mortgages 130 This doctrine is imported into the Common Law . . 130—132 CHAPTER Vn. EESCISSIOK AND EECTIFICATION OP CONTRACTS. Equity does not rescind contracts for mistake, but rescinds •!7ssreventive-py:oceiare," in personam." .. .. 153 Power of committal to prison not affected by Debtors Act . . 154 Does Magna Charta affect this power of committal . . . . 155 Under Judicature Act injunctions or receivers may be granted where convenient . . . . . . . . . . . . 156 Injunction respecting property out of jurisdiction . . . . 158 Contracts or lavrs of foreign country .. .. ., .. 158 Will the Court restrain application to Parliament . . - . . 158 Under new law one Court is not to restrain another, but pro- ceedings may be stayed.. .. .. ., ,. ,, 160 When are bankruptcy proceedings stayed by Court of Chancery 161 Interpleader suit . . . . . . . . 162 Interlocutory yajmxciioT\s .. .. .. .. .. 162 Appointment of a receiver, but not upon ejectment Mil . . 163 Injunction to restrain in equitable acts . . . . . . . . 165 Injunction to restrain illegal acts .. .. .. ..166 Ancillary jurisdiction — equitable remedy . . . , . . 166 Becsiuse {!) either the injury is irreparable .. .. 167 (2) or injury is continuous 168 TABLE OF CONTENTS. XXUl Chapter VIII. — continued. PAGE Cases as to Commons — Bills of peace .. .. .. ..168 Warwick v. Queen's College . . . . . . . . 169 Commissioners of Sewers v. Glasse . . . . . . 170 (3) or a public body is abusing parliamentary pon-ers .. .. .. .. .. 171 Injunction against maste, Garth v. Cotton (1 White & Tudor) 171 Equitable waste . . . . . . . . . . . . . . 172 Injunctions against nuisance . . . . . . . . . . 173 Pollution of rivers . . . . . . . . . . . . . . 173 Interference with light and air . . . . . , . , . . 173 Discomfort 173 Injunctions against breach of covenant . . . . . . 173, 174 CHAPTER IX. DiSCOTEET. Bill of discovery in aid of Common Law . . . . . . 176 Common injunctions to siaj &fAioiii •• •• «. ..177 Plaintiff and defendant may both call for discovery . . . . 177 Discovery with the object of amending bill . . . . . . 177 (A) The, rules by which the ri^Ai to discovery -is jttflZi^e^Z .. 178 No one can compel discovery of — ^ 1. Imperfect obligations . . . . . . . . 179 2. M-aXt/ers irrelevant to the issue •. •• .. 180 Or not relevant to his own case .. .. 181 — 183 3. Matters tending to crmiwaie .. .. .. 183 4. Professional communications . . . . . . 184 5. Official secrets 184 (B) Discovery SLuA production of documents .. .. .. 184 Rule founded on Hardman v. Ellamea as to documents referred to in pleadings . . . • 185 Plaintiff calling for documents which will be his if he wins and no use if he loses . . . . . . . . 186 Discretion of Court in such cases . . . . . . 186 — 188 Lockett V. Lockett (L. E., 4 Ch. 336) 186 XXIV TABLE OF CONTENTS. Chapter IX. — continued. PAGE (C) He who answers mnst answer fully, but particular dis- covery may be protected . . . . . . . . . . 188 Effect of demurring . . . . . . ■ ■ . . 189 Meaning of word ' answer ' . . . . . . 189 (note) Defence by plea . . . . . . . . . . . . 190 (D) Jaiisiiction to esLamine mitnesses airoad .. .. 190 to perpetuate testimony .. .. .. 191 to establish wills . . . . . . . . 192 to take evidence de bene esse . . . . 193 Conclusion 194 EQUITY TJNDEE THE JUDICATUEE ACT, OR THE ^flatbn of 6x);uitg to €Dmman f aixr. CHAPTER I. EQUITY FOLLOWS THE LAW. The new Judicature Act (36 & 37 Vict. c. 66), enacts (sect. 24), that in every civil cause or matter commenced in the High Court of Justice, Law and Equity shall, after the 2nd November, 1874, be administered concurrently, and (sect. 25, subs. (11) ) that in all matters in which there is any conflict or variance between the rules of Equity and the rules of Common Law with reference to the same matter, the rules of Equity shall prevail. My intention is to give such an analysis and description of the existing system of Equity as shall point out precisely its re- lation to the Common Law, and the limits within which the conflicts or variances above mentioned may be expected to arise. I am not aware that any treatise on Equity has attempted to distinguish the proper sphere of Equity from that of Common Law — indeed, it has generally 2 EQUITY FOLLOWS THE LAW. been treated as a special science, dealing with tlie same subjects as tbe Common Law, but conflicting with it in principle, — whereas I shall attempt to show that Equity does not differ in principle from the Common Law, excepting where, on the one hand, it deals with a different subject-matter, viz., trusts and fiduciary relations, and, on the other hand, applies in certain cases a more appropriate remedy than that of damages to ordinary common law rights. Wherever there is no trust, and the legal remedy is not inadequate, the maxim placed at the head of this Chapter wiU be found to apply, i. e., that " Equity follows the Law." Some, indeed, jocosely interpret this maxim in the sense that Equity is always following but never finds the Law. Others have a vague idea that Equity only follows the Law when it holds it equitable to do so ; and that exceptions to the rule are constantly occurring, because Equity regards the intention rather than the strict sense of instruments and agreements. If these statements were true, it would follow that there is no doctrine of Law which may not, under the new fusion, find itself in conflict and at variance with some equitable doctrine, no . action in which the two systems of Law and Equity wiU not be jostling for supremacy. The definitions of Equity given by the ordinary text-books do not seem to throw much light on the subject. Mr. Josiah Smith, for example, whose Work is founded on the best authorities, "believes it is impossible to give a short definition of Equity EQUITY FOLLOWS THE LAW. 3 jurisprudence without either failing to convey any accurate and definite knowledge, or else positively misleading the student" (a). But if those writers who have attempted to give to their readers a general conception of the principles and province of Equity have failed in framing definitions of their subject, it was not their fault so much as the result of the conditions under which they wrote. Equity has hitherto been treated as a separate science, and not as that which it really is, namely, a portion of Law accidentallt seveked FEOM THE Common Law : and so it was necessary for those writers to try to explain its position as a separate science, and they naturally faUed in attempt- ing to justify that which rested upon an vmreal and unnatural basis. But we, through the legislature of last year de- creeing the re-union of Equity and Law in England, are fi-eed fi-om this embarrassment. We start at length, in the year 1874, with this difficulty, this un- natural divorce of two kindred systems, for the first time removed out of our path. Equity, which for exactly 500 teaks since the reign of Eichard II. has been Kke a branch dissociated from its parent stock, is now to be grafted back into the Common Law of the land ; and we, instead of troubling our- selves to find reasons and definitions to justify the separation of the two branches, have the pleasanter and more profitable task of finding the points of con- tact between them, and illustrating the one by the other. (a) Smith's Manual, p. 2. See Haynes on Equity, p. 13. b2 4 EQUITY FOLLOWS THE LAW. I have called Equity a portion of Law accidentally severed from the Common Law, and a very short account of the origin of Equity will show that this is a correct statement, and that the separation of the two jurisdictions is not due to any diflFerence in principle, but solely to historical circumstances. The history of the separate jurisdiction dates irom the reign of Richard II., who became king almost exactly 500 years ago (1377). In his reign the Chancery records begin (5). It was a reign of change, in which the people were banding themselves together against oppres- sion, when the humbler classes sought to recover their Anglo-Saxon rights, when Wat Tyler rose against over-taxation, and Wickliffe preached against abuses in the Church, And in this same reign poor suitors took courage to appeal to the prerogative jurisdiction of the chancellor, as the representative of the king, for that redress which they could not get at Common Law. But even in its beginning Equity was (with the exception, perhaps, of " trusts" (c)) no new law, but only the Common Law more efficaciously adminis- tered ; for we find that in the majority of instances where the chancellor was thus appealed to, it was admitted that the Common Law recognized the plain- tiff's rights, but by reason of the special circum- stances the redress there would be inadequate («?). (J) Adams on the Doctrine of Equity, p. xxxi. ( c) See a note on John de Waltham and his writ of subpoena in Campbell's Lives of the Chancellors, i. 258. {d) See on this snbj ect Adams on the Doctrine of Equity, p. xxxt. EQUITY FOLLOWS THE LAW. 5 The common lawyers soon saw the mischief this new jurisdiction was likely to do them, and we find a perpetual struggle going on against the chan- cellor's authority ; in the 13th year of Richard II. (1389) the commons petitioned that no man might be brought before the chancellor or the king's council for matters remedial at the Common Law ; but the only answer given by the king was that he would keep his regality as his predecessors had done before him. In four years afterwards a second petition was presented to the same effect, and again in six years (in 1399) a similar petition was presented to the new king Henry IV., who answered that the statutes should be kept, except where one party was so great and rich and the other so poor that he could not otherwise have remedy. The complaint always was, not that the chancellor was introducing new law, but that he was usurping and supplanting the jurisdiction of the Common Law Courts. In the reign of Victoria, as in the days of Richard II., Equity is still appealed to, to supply the firequent deficiency of Common Law to grant an appropriate remedy, but this is only for convenience and not because the Common Law refuses to give redress " on the ground of the wealth and power of nobles surrounded by men of their maintenance" as in those good old times. And yet there is one class of cases in which Equity interferes, not merely because the remedy by way of injunction or specific performance is more adequate than damages, but also partly on the ground of the potency of the defendant ; but such has been the alteration of social 6 EQUITT FOLLOWS THE LAW. circumstances in the course of 500 years, that it is no longer the intimidation of great men and noble suitors against which the chancellor's protection is invoked, but the tyranny of railway companies, trades unions and similar creations of the nineteenth century, against which the Court of Chancery often grants relief, to prevent their violent user of those powers with which the legislature has clothed them. To this effect Lord Hatherley spoke in giving judg- ment in Stretton v. Great Western E-ailway Company (5 L. K., Ch. 751, 760) ; and the case of Springhead Spinning Company v. Riley (L. E,., 6 Eq. 551), where a trades union was the aggressor, and Dixon V. Holden (L. R., 7 Eq. 488), where an abuse of the power of the press to the destruction of a reputation was restrained, are curious instances of this altera- tion in society, which has subjected us to the tyranny no longer of the great noble, but of the trade union, the printing press, and the railway company. Enough has been said to account historically for the rise of that portion of Equity jurisprudence which does not conflict with the Common Law, except so far as it anticipates it on its own domain by providing a more efficacious remedy. The other portion of Equity jurisprudence, which deals with trusts, a separate subject-matter, took its origin about the same time, because the Common Law would not recognize mere fiduciary obligations, nor provide appropriate writs to enforce their observance (e). The greatest authorities of this day have differed (e) See Haynes on Equity, p. 12, and Lord Campbell, i. 258, above cited in note (c). EQUITY FOLLOWS THE LAW. 7 on the subject of the relation which Equity has borne to the Common Law during its separation from it : Lord Hatherley and Lord Cairns, on the one hand, have declared that there is no antagonism in princi- ple between the two, and that it is entirely a question of diiFerence of procedure and judicature, while Lord Westbury and Lord Eomilly have asserted that they are not only different but opposed (/), Lord Westbiu-y and Lord Eomilly perhaps spoke with a little of the exaggeration of reformers, and aimed at bringing out ia as strong relief as possible the existing evils of separation, so that lawyers might be induced to look with favour on attempts for re- uniting the two, and, as a matter of fact, I think we can show (as we might certainly expect to be able to show) that the view of Lord Hatherley and Lord Cairns is a sound and sensible one, and that the dif- ference between Law and Equity is accidental and historical and not in any way essential. When we read Lord EUesmere's judgment in the Earl of Oxford's case (1 Ch. Eep. 1) {g), which he begins by saying, "the law of God speaks for the plaintiff (Deut. xxviii.)," we must own that formerly Chancery judges were carried away by the grandeur of the name of Equity, and ad- ministered Law too much according to their indi- vidual ideas; and so Selden (as quoted by Lord Campbell) says, that, "as the conscience of the chancellor is larger or narrower, so is the Equity (/) See for this an interesting letter by Mr. W. Finlason in the Law Journal for 1870, p. 263, on the union of Law and Equity. {g) Reported 2 White & Tndor's Leading Cases. 8 EQUITY FOLLOWS THE LAW. administered in his Court, whict is as absurd as if they were to make the chancellor's foot a standard for the foot measure. One chancellor has a long foot, another has a short foot, and so do their consciences differ." But this state of things has long passed away and Equity has become, in fact, as it will here- after be in name, a part of Law, as I have defined it, deciding in its own sphere according to precedents and fixed rules. There is a story told of Home Tooke, that having failed in a case at Law, which he thought very im- just to himself, he rushed into Court where Lord Kenyon was sitting, crying out " Justice, my Lord, I want justice;" to which the judge quietly replied, " I am not sitting to administer justice, I am sitting at Nisi Prius." And so it is with Equity; for the charge of uncertainty in Equity, I venture to say, has long ceased to be a true one; the time has passed, if ever there was one, when Equity aimed at relieving hard cases, with or without precedent, and when the proverb was true that " Hard oases make bad law." Persons need no longer hope to be relieved in Equity from contracts which they have thoughtlessly entered into, simply because it would be a hardship to make them carry them out, for unless the hardship is so great that the Court thinks the alleged contract must have been induced by fraud or must be a mis-state- ment of the real contract, contracts are as binding in a Court of Equity as in a Court of Law (A). (/j) See Chapter "VTII. on Mistake {post), and Helling v. Lnmley, 3 De G. & Jones, 493, 496 ; Lehman v. M'Arthur, L. E., 3 Ch. 496* 503. ' EQUITY FOLLOWS THE LAW. 9 The following I venture to propose as an accurate definition, or rather description, of Equity as ad- ministered in Courts of Chancery : — That part of the law which, having power to enforce discovery ( 2 ), ( 1 ) administers' trusts, mortgages and other fiduciary obligations ; (2) administers and adjusts common law rights where the courts of common law have no machinery (a); (3) supplies a specific and pre- ventive remedy for common law wrongs where courts of common law only give subsequent damages (z). Now let US see in each of these branches how far and in what sense it is true that " Equity follows the Law." (1) The exceptions to the rule will be found to occur principally in the administrative branch of Equity {m). We should expect to find that exceptions to the rule occur in this branch of Equity, which is much occupied with trusts ; for in administering and ad- justing trusts Equity is dealing with a subject out- side the Common Law — but even here, in dealing with trusts, the maxim that " Equity foUows the Law" (i) See Chapter IX.,^o«*. (k) See Chapters H., III., IV., V., post. (0 See Chapters VI., VII., Yin., ^ost (to) Mr. Smith in his Manual divides Equity as follows: — 1. Remedial. 2. ExecutiTe. 3. Adjustive. 4. Protective gene- rally. 5. Protective of infants and married women. According to the division made in the text, Administrative Equity nearly cor- responds with Mr. Smith's 2nd, 3rd and 5th titles. Remedial Mgvity with his 1st and 4th. b5 10 EQUITY FOLLOWS THE LAW. has a clear meaning; viz. that wherever the trusts or the equitable estates are so simple that an analbgy can be found in the Common Law, that analogy is followed ; for example, the rule in Shelley's case is applied by analogy to equitable limitations. But the analogy of the Common Law goes but a little way in the adjustment of complicated trusts; and. when we come to questions of conversion, election, marshalling of assets, and the like, there is nothing parallel at Common Law, and here we do find Equity laying down its own rules, and regarding the intention of parties, not indeed following the Com- mon Law, but only because there is no Common Law to follow. (2) Many matters come into Equity on this its administrative side, not on the ground of any trust, but only for the adjustment of ordinary rights and contracts, and then Equity will be found following Common Law principles, the only distinction being the complete remedy and adjustment of rights which the decree in an administration suit gives as opposed to a judgment at Law. (3) That part of Equity which we may call EEMEDIAL (to distinguish it from administrative) Equity, deahng mainly with ordinary Common Law contracts and rights, follows the familiar rules of Law — and here the only distinction is that it applies a more efficacious remedy by way of specific performance and injunction where damages would be inadequate relief. JSTo doubt the charge is brought against Courts of Equity that in dealing with contracts they disregard EQUITY FOLLOWS THE LAW. 1 1 the provisions of the Statute of Frauds, and thus in attempting to do Equity break the Law. In the Chapter on Specific Performance I shall examine this charge, and endeavour to show that in those cases where a contract appears to be enforced in Chancery, though not properly enforceable within the Statute of Frauds, it is because there is a complete obliga- tion no longer resting in fieri: it is enforced as a trust binding the conscience, the breach of which may not be measured in damages. And now let me illustrate by example what I have thus laid down, viz., that Equity, though differ- ing in the remedy, generally follows the Common Law as to the right; the only exception being where there is a trust, in which case Equity "agit in "per- sonam" binds the conscience of the parties to carry out their genuine intention. Byway of illustration, I will take points which will be more fully treated of in a later chapter, viz.. Equitable Assets and Marshalling. First, I say, that where there is a trust Equity does not follow the Common Law, because trusts are outside the Common Law. Now EQXiiTABLB ASSETS wc shall find to be an excellent example of this. Equitable assets are nothing else than real propei-ty devised for or charged with payment of debts, so that the executor, or the court administering for him, takes it as a trust, and not by the Common Law; whUe every other kind of assets is called legal assets, because it comes to be administered by the executor inde- pendently of any trust ; i. e., the personalty goes to 12 EQUITY FOLLOWS THE LAW. the executor by the Common Law, and realty be^ came assets by the statute 3 & 4 Will. 4, c. 104, which statute excepted real property devised for or charged with payment of debts from its operation, and left them equitable assets as before. It wiU be found that in administering legal assets the Court of Chancery always followed the Common Law rules, — ^paid, for example, specialty creditors before simple contract creditors, and allowed an executor or administrator to retain his own debt or prefer any other creditor's debts according to his Common Law rights, — ^but that these inequalities were not allowed to prevail with regard to the equitable assets, or trust assets as they might be called. In dealing with these the trustee was not allowed to retain or prefer a debt, nor was one class of creditors paid in priority to another, but the cre- ditors being looked upon as cestui que trusts were all paid rateably. It is worthy of note, that Equity having set the example and refused in the case of trusts to agree with the Common Law rule of inequality, the legis- lature said, " If Equity will not follow Common Law, it shall follow Equity:" and 32 & 33 Vict. c. 46 set specialty and simple contract debts on an equality as to aU assets. The principle of equal payment is carried stiU further by the Judicature Act (36 & 37 Vict. c. 66, s. 25), which provides (subs. (1)) that in the administration of insolvent assets the law of bankruptcy is to be applied. Secondly, I say that in other cases where there is no trust. Equity follows the Common Law in taking EQUITY FOLLOWS THE LAW. 13 the same view of rights, but it manages to give more effective remedies, e. g. to adjust different rights by one decree. Of this the doctrine of marshalling is an instructive example, marshalling being an adjustment of assets so as to pay as many claims as possible: — Thus, to take a simple instance: There is an estate to be administered, real and personal, the personalty being worth (say) lOOZ. There is a creditor, A., who has a claim for lOOZ. binding the heir : then A. can sue for his lOOZ. either from the real estate or personal estate. There is also a legatee, B., whose legacy is 100/. Therefore the estate is liable for 2001. But suppose A. with his charge chooses, instead of going on the land, to go on the personalty, which we have supposed only worth lOOZ., then the legatee would be excluded; but Equity says, if A. does this, it is no hardship on the estate to put B. into A.'s place and let him take the amount which A. might have claimed from the realty (lOOZ.) out of the realty. Equity thus not only acknowledges Common Law rights, but gives greater effect to them than the Common Law is able to give. Here, also, as in the case of the equality of debts, it is worthy of note that the Common Law has been compelled to foUow Equity by a statute which prac- tically enacts the marshalling of assets in such a case as I have supposed above; for 30 & 31 Vict. c. 69, extending Locke King's Act to a vendor's lien, says in effect that at Law as weU as in Equity a vendor with a lien shall henceforth go on the land for his lien and leave the personalty for legatees, 14 EQUITY FOLLOWS THE LAW. Another instance of Equity adjusting Common Law rights, so as to give greater effect to them, is the case of a surety who, having paid the creditor, was allowed in Equity to make use of the creditor's REMEDIES to recoup himself, though at Common Law those remedies having once been used were extinct. See Dering v. Winchelsea, 1 Cox, 318 (w). I may here with advantage notice some of the maxims which seem to give a vsdder scope to Equity than I have claimed for it, and to ascribe to it the function of correcting the Common Law rather than that of enforcing it more fiilly and effectively. First, the maxim that " Equity is equality " does not, as we have already seen, imply that Equity levels all the distinctions which Common Law has made. But the true explanation of the maxim is this, that in cases of trust or fiduciary obligation there is to be equahty among the cestui que trusts, . Thus, as we have seen, creditors were always rate- ably paid out of trust (or equitable) assets. A second maxim that Equity suffers no wrong to be without a remedy does not mean to say that those rights, which a high morality or a sense of honour would dictate, can be enforced in Equity. The word right must be understood in the sense of " legal right," including, however, not only Common Law rights but also fiduciary obligations. And so the maxim comes to be limited, as Mr. Smith ex- plains it, to those rights which can with " advantage be recognized in a Court of Law instead of being left to people's conscience and sense of honour." {n) Reported with notes, 1 White & Tudor's Leading Cases. EQUITY FOLLOWS THE LAW. 15 These two maxims are met by the maxim that Equity is not a court of honour, of which I will give as an example the case of Daring v. Earl Winchelsea, ah-eady quoted (p. 14): there Thomas Bering was appointed to a responsible post, the collection of certain custom duties, where public money would pass through his hands; his probity not being above suspicion, his brother. Sir Edward Bering, and the Earl of Winchelsea and another became sureties for him: after which, the young man being, as it seems, encouraged by Sir Edward in gambhng and betting, made away with the monies, and 3,000Z. had to be paid to the government ; then Sir Edward, the brother, having to pay on his bond the whole 3,000Z., called on the Earl of Winchelsea as his co-surety to share the loss; the earl replied that it was inequitable that he should bear any part of it, because it was Sir Edward who had encouraged the young clerk, his brother, in racing and gambling. But the judge said that Equity was not a court of honour, it might be very indecorous that Sir Edward should first encourage his brother in dissipation and then come upon others for contribution towards the loss ; but such considerations could not be noticed in a Court of Law, and he decreed contribution. This case exemplifies and explains a third of those general maxims I have referred to, namely, that HE who SEEKS Equity must come with clean hands, which, as was said in Bering v. Winchelsea, only means that he must be legally innocent in the trans- action before the Court; it does not mean to say that every plaintiflf in Equity must be of irreproachable 16 EQUITY FOLLOWS THE LAW. character in other transactions, and in general life. And so the maxim that he who comes into Equity MUST DO Equity means Equity in relation to the matter before the Court : thus, he who comes to set aside a contract as not binding on him must, as the price of the decree, pay what he is properly bound to pay ; and he who asks for specific performance of a contract must prove that he is ready and -ndlling to do his part. Another recent case exemplifying that a Court of Equity is not a court of honour is E-amsden v. Dyson (L. E., 1 H. L. 130). In that case a number of small householders at Huddersfield held their tenements under Sir James Eamsden : they had no leases, but what they said was that Sir James had encouraged them in the expectation that they could at any time have leases, and that so long as they paid their rent they would never be turned out. In short, the question was put upon the honour of the Eamsden family. When Sir James' son came to the property he resolved to try whether the tenant right, as it was called, was valid at law. So he ejected one of his tenants, who at once, with a hundred more at his back, filed a bill in Chancery to restrain the ejectment, and before Sir J. Stuart the tenants succeeded, on the ground that it was a fraud in Equity to encourage expecta- tions and let tenants lay out money and then reftise a lease; but, on appeal, the decision was reversed on the ground that there was no legal right proved, and the Court would not enforce an obligation which, if it existed at all, was only one of honour. EQUITY FOLLOWS THE LAW. 17 And now to look at what I have said from a diffe- rent point of view, let us see if my observations will enable us to answer another question especially im- portant in respect of the fusion of Law and Equity, i. e., in what cases Equity has an exclusive juris- diction, and in what cases a concuerent juris- diction with Common Law ? In order to answer this question accurately and yet concisely, a three-fold division must be made. And we must divide the subject of equitable juris- diction thus : — (1.) Trusts : over these Equity has had and has still exclusive jurisdiction. I include under trusts mortgages and the protec- tion of infants, lunatics and married women. (2.) Administration apart from trust: over this Equity has exclusive jurisdiction in respect of the remedies, viz., complete adjustment in one suit ; though Common Law Courts have concurrent jurisdiction over the rights, e. g., debts and contracts. (3.) Specific performance, injunction, discovery in respect of Common Law rights : Equity had formerly exclusive jurisdic- tion in respect of these remedies, though late statutes have given similar powers to the Common Law Courts. Of the probable effects of fusion I wiU say this only, that, though the doctrines of trusts and admi- nistration wiU be new to some of the Divisions of the High Court of Justice, still those doctrines — as, for 18 . EQUITT FOLLOWS THE LAW. example, conversion and election — have now become so firmly settled and well understood, that they are little more than questions of adjustment and account, which are worked out in Chambers, and will con- tinue to be worked out by the chief clerks or some body corresponding to them. Common Law doctrines, on the other hand, wiU not be strange to Chancery practitioners ; for on this side the fusion has in prac- tice commenced long ago, and purely legal questions already form a large part of the business of the Courts of Equity in its remedial jurisdiction. Taking, for example, the Equity Reports for one month (March, 1874), I find that aU the cases, with the exception of three, relate to Common Law questions of contract and wrong. Thus there are several cases where the Court is asked to enforce or set aside contracts instead of leaving the parties to seek damages at Common Law; one raises some very interesting questions on a contract for raising and getting coal (which we shall find it useful to discuss when we come to the subject of Specific Performance), and another involves important mercantile questions on securities appropriated to meet biUs of exchange (o) ; and there are a number of cases where the Court is asked to restrain by injunction a threatened wrong, for which damages would be an insufficient compen- sation ; thus, there is one case where a towing-path was obstructed and the question of right of way was decided (p) ; another, where a person, claiming another (o) FothergilliJ.Eowland.L. E., 17Eq.l33; Latham ■!). Chartered Bank of India, Hid. 205. tp) Selby V. Nettlefold, L. R., 9 Ch. 111. EQUITY FOLLOWS THE LAW. 19 man's wood, went and took up his residence close to it, turned cattle into it and cut tlie brambles and trees, and the question of trespass had to be tried {q). In another case the School Board of London was defendant, on the ground that in taking land for their schools they trespassed upon certain easements (r). In another a bishop was defendant, on the ground that he was prosecuting a clergyman without re- garding the provisions of the Church Discipline Act (s) ; and, most remarkable of all, was a case of Clover V. Iloyden(?), where the subscribers to a shipping registry moved for an injunction against the Committee of the Association, on the ground that they had not registered their ship in the highest class as good and seaworthy, which was a question of slander of title, and depended upon whether malice and falsehood was proved. These are only samples of Common Law questions which constantly come into Equity ; and the result seems to be that since the Courts of Equity and of Common Law are already to so large an extent occupied with the same subject-matters, there can be no reason why the tv/o jurisdictions should not easily coalesce when the artificial barrier between them is removed, as waters find their level when a sluice is lifted by which they were kept apart. The Supreme Court of Judicature Act supersedes and practically repeals two important acts, which must (j) Stanford v. Hurlstone, L. E., 9 Ch. 116. (r) Clark ■». School Board for London, iHd. 120. (s) Mx parte Edwards, Hid. 138. (<) L. K., 17 Eq. 190. 20 EQUITY FOLLOWS THE LAW. not, however, be forgotten or passed over, since to them is due whatever there has been of practical fusion between the two jurisdictions, so far at least as the Chancery Courts are concerned. The two acts I refer to are those of Lord Cairns and of Sir John Eolt (21 & 22 Vict. c. 27, and 25 & 26 Vict. c. 42), the former of which empowered the Courts of Equity to try questions of fact with or without a jury ; while the latter enacted that " the Court shall determine every question of law or fact incident to the relief sought." But there were two reservations even in Sir J. Eolt's apparently peremptory Act, viz. — (a) Sect. 2 reserved to the Courts the power to send an issue out of Chancery, where it was more convenient that it should be tried at the assizes, or in a Superior Court of Common Law. (b) Sect. 4 provided that the Court need not decide a legal question where the matter had been improperly brought into Equity. These reservations, as the event showed, were suflScient to prevent a great deal of the benefit of the acts; and often when suitors appKed to Equity for relief, and some Common Law title arose, they were told that it was more convenient that the ques- tion should be tried at Common Law, and so aU their evidence and all their expense in Equity was wasted. To take one conspicuous example: the Court of Chancery always had a jurisdiction in matters of PAKTITION (see Agar v. Fairfax (m), 17 Ves. 533), (?0 2 White & Tador's Leading Cases. EQUITY FOLLOWS THE LAW. 21 but if a tenant in common came and asked for a par- tition he had formerly either to show that he had good legal title, or else he would be turned over to Common Law to prove it. After Sir J. Rolfs Act it might have been thought this would be no longer so, but the point was tried in Giffard v. "Williams (L. E., 5 Ch. 546), where Y.-C. Stuart heard evidence and admitted the plaintifiF's title, but was reversed on appeal, and the whole suit was money and labour lost. But now, as we have seen, by 36 & 37 Vict. c. 66, s. 24, it is enacted that Law and Equity shall be concmTently administered in the new High Court of Justice, and though by sect. 35 a power is re- served of transferring causes or matters from one division of the Court to another, yet all steps and proceedings taken by any party, and all orders • made by any judge before such transfer, are to be valid and effectual to all intents and purposes, in the same manner as if the same respectively had been taken and made in the proper division to which such cause or matter ought to have been assigned. Thus I have shortly, and I hope clearly, traced the history of the growth of the Court of Chancery as a separate jurisdiction, and have endeavoured to show that there is no essential difference between the two ; but merely that the Courts of Equity have, owing to their recognition of trusts and the com- pleteness of their administrative machinery, on the one hand acquired an immense non-litigious adminis- trative business, which, being conducted on settled principles, may easily be carried out by any division of the new High Court of Judicature, and on the 22 EQUITY FOLLOWS THE LAW. other hand, provided certain efficacious remedies for legal wrongs, which, now that Parliament has so decreed, may henceforth be as easily provided by the whole Court of Judicature as by one particular branch of it. It will then be seen how Equity follows the Law as a coping-stone foUows a wall, crowning it, and adding to it strength, solidity and completeness. I will close this chapter by pointing out that the legislature has taken remarkable care, in providing for the fiision of Common Law and Equity, to hedge round and preserve trusts, which, as I have endea- voured to show, constitute the essence of Equity. For the enactment in the Judicature Act (sect. 25, subs. (2) ) that " no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust shall he held to be barred by any statute of limitations " is a mere declaratory clause, re-enacting what has always been recognized in Equity, and indeed was already suffi- ciently provided for by the Statute of Limitations (3 & 4 Wm. 4, c. 27, s. 25) {v), and the clause can only have been inserted for the purpose of asserting prominently before every branch of the new Court of Justice the sacred inviolability of trusts which we shall now proceed in the next chapter to consider. (») See Sugden on the Statutes relating to Property, p. 97. ( 23 ) CHAPTER 11. TEXTSTS. The greater part of the separate jurisdiction of Courts of Equity may be summed up ia this one fact, that Equity recognizes and enforces trusts. And this, indeed, seems to me to constitute the sole difference in principle between Equity and Common Law. The difference of principle consists in this, that in interpreting trusts. Equity considers the in- tention; so much so, that Mr. Haynes takes as one of the four leading maxims of Equity (a), that " Equity eegakds the substance ok spirit and NOT the letter MERELY." I think his statement as he makes it is too wide, and that it ought to be limited to the subject-matter of trusts ; for it is by such broad unqualified maxims as this that people get their notions of an Equity opposed to the Com- mon Law, the truth being that Equity, as we have seen, when not dealing with trusts, adopts the Common Law rules of right and contract almost without exception. Some remarkable instances of this, in respect of the legal priority of debts in administration and the power of the executor or administrator to retain his own debt or prefer that of another creditor, were noticed in the last chapter. (a) His other three are (p. 18) •' No wrong without a remedy," see ante, p. 14 ; " Equity acts in personam," see pp. 11, 24 ; and " Equity follows the Law," see last chapter, passim. 24 TRUSTS. But Mr. Haynes' maxim is perfectly truthful and characteristic of Equity so far as it is concerned with the interpretation of trusts. Not that Equity inter- feres with the possession or devolution of what is called the legal estate, but it binds the conscience of a trustee or fiduciary owner to use his legal estate in conformity with the intention of his trust. Thus, in the case of the trust, as in other instances which we shall meet with hereafter. Equity enforces its jurisdiction by directing the conscience of the in- dividual, or, as the maxim says, " -^QtriTAS AGIT IN PERSONAM," but it win only direct the conscience in accordance with precedents; for, as we have seen, Equity as administered in Chancery is not honour or morality, but a portion of Law. Trusts, as I said in the last chapter, are the only rights over which Equity has had and still has an exclusive jurisdiction; and though Mr. Haynes in- cludes in the exclusive jurisdiction also administra- tion, married women's property, and mortgages, yet these may all be said to come under the general head of trusts ; and we shall, I think, find it both simpler and more accurate in speaking of the exclu- sive jurisdiction of Equity to confine it to trusts and their administration as stated ante, p. 17. The recognition of trusts in Equity is one of the best examples of the maxim, that " Equity suffers no right to be without a remedy," for the word "right" means (as was explained in the last chapter, p. 14) not every right, but every right which a Court of Judicature can conveniently and expediently take cognizance of; and this meaning of the maxim is TRUSTS. 25 well illustrated by the subject of trusts, which are just on the border line ; the Common Law thought it not advisable to treat them as rights. Equity took a contrary view, and enforces them if well created. Trusts are either express or implied. Express trusts of real estate must be evidenced by writing (sect. 7 of Stat, of Frauds), and this law, of course. Equity obeys ; but we shall find that many trusts are implied in Equity in the absence of writing ; is this then an infi-action of the statute? we shall find it is not so, for that sect. 8 of the same statute excepts trusts arising by implication or construction of law fi-om the provisions of the former section (b). First, then, to deal with implied or construc- TiTE trusts, which do not require to be created in writing. I shall give three instances, viz.: (1) Resulting trusts; (2) Implication of te- nancy IN COMMON ; (3) Performance of obliga- tion. Before doing so, I will stop to make one ob- servation about the distinction which has been made between trusts implied and constructive. Mr. Smith calls those trusts constructive which are altogether constructed by a rule of law with- out reference to the nature of the transaction and the presumable intention of the parties, while by implied trusts he means those which, though not expressly declared, are implied fi-om the surround- ing circumstances and the probable intention. Such a distinction it may be convenient to make, but we (J) 29 Car. 2, c. 3, ss. 7, 8. C. C 26 TRUSTS. must not confuse definitions made by one writer with those of general acceptation; this distinction, for example, between implied and constructive trusts is not universally recognized, and the two expressions are practically synonymous and convertible terms. (1.) A RESULTING TRUST is one of the simplest examples of an implied trust, and is of a purely equitable origin, as is shown in the beginning of Mr. Joshua Williams's Chapter on "Uses and Trusts." If A. conveyed to B., and no use was de- clared. Equity decided that B. held to the use of A. the conveying party ; in other words the use resulted; and so, if I give lands to some person upon trust to sell and divide the proceeds, then if after performing the trust so far as possible there are any surplus proceeds over, the trustee cannot keep the surplus, but there is a trust, a resulting trust for me or my representatives ; Equity, in short, wiU not let a man who was clearly intended to be only a trustee, and only to have a legal or naked or bare estate, to keep the beneficial estate also. If firom any cause the beneficial interest or any part of it fail, it goes back, results to the grantor. This is the simplest case, but the principle also applies when, though there is no trust at aU de- clared, the law presumes that the person holding the legal estate was intended not to take beneficially but merely as trustee. The two weU known presumptions on this point are — (1) If A. pays for property but puts it into B.'s name, B. holds the property on trust for A., that is, where A. and B. are strangers ; but (2) If TKUSTS, 27 A. is " in loco parentis '' to B., then the purchase is a gift or advancement to B. These are the pre- sumptions, but they may be rebutted by evidence, even by parol evidence, which may always be admitted in favour of the apparent intention to rebut a legal presumption. See Hurst v. Beach, 5 Madd. 351. I wiU quote two recent examples to show that rules like the above are more easily stated than applied. In Hepworth v. Hepworth (L, R., 1 1 Eq. 10), a person of great age, over ninety, who was living with his son, transferred 3,000Z. stock into the son's name — he died aged ninety-four, leaving no stock in his name ; but by his will (which was never revoked) he had purported to settle 3,000Z. stock on his son's children. Not unnaturally a claim (argued by Mr. Joshua Williams) was put in, that the gift to the son, by which the legacy to the grandchildren was adeemed, was meant to be on trust for them ; but V.-C. Malins decided that the ordinary pre- sumption applied; and the son held the 3,000Z. as an advancement. See Dyer v. Dyer, 2 Cox, 92(c). In Stock V. M'Avoy (L. E,., 15 Eq. 55), on the other hand, before V.-C. Wickens, there was a pur- chase of copyholds in a son's name, so that the legal presumption was advancement, but as the father did acts evidencing ownership and gave notice to a tenant, it was held that the son was a trustee for him, just as if he had bought a shop in his son's name but had put his own name over the door. (2.) Another example of a trust implied by opera- («) 1 White & Tudor's Leading Cases. C2 28 TRUSTS. tion of law occurs in the well known rule of partner- ship, that the survivor of joint partners is a TRUSTEE FOR THE REPRESENTATIVES OF DECEASED PARTNERS : the Common Law joint tenancy is held a tenancy in common in Equity. This Implied trust is not purely of an equitable origin, but is founded upon an ancient Common Law maxim or rule, that "inter mercatores jus accrescendi locum non habet. So that here again "Equity" is only following the Common Law. The above Common Law maxim may be found quoted from Coke in the leading case, Lake v. Craddock (3 Peere Williams, 158)((f); therefore this partnership doctrine, usually given as an example of the maxim mentioned in the first chapter, that Equity delights in equality, is another example of Equity doctrines having their equivalent at Common Law. Lake v. Craddock was a case where lands in Essex having been flooded by the Thames, the owners did not think it worth while to keep them, being subject to heavy burdens for drainage, and they were sold, and Lake, Craddock and others purchased them, the conveyance being to them in joint tenancy. It was, however, held to be a joint speculation of improving land on a hazard of profit and loss in the nature of merchandize, and the survivors had to account to the representatives of the deceased partners. This principle of non-survivorship between traders explains a special clause in an ordinary mortgage to trustees. Such a mortgage is drawn with a proviso of redemption "on repayment to the trustees ( Select Cases in Chancery, 61) (e), or by purchasing from his cestui que trust (Fox V. Mackreth, 2 Brown's Ch. Ca. 400; 2 Cox, 320) (e). A case lately occurred in which, 100 years ago, a trustee innocently bought from his cestui que trust some London property for 500/. ; the property passed from hand to hand, getting every year more valuable, and in each sale fetching more money, until a recent purchaser, about to give 1,000Z. for the property, found out what had been done, and (d) 2 White & Tndor's Leading Cases. {e) 1 White & Tndor's Leading Cases. C. » 50 .EQUITABLE FKAUD. asked for the concurrence of the representatives of the cestui que trust from whom the original pur- chase had been made, and they demanded a con- siderable portion of the purchase-money as the price of their concurrence ; this was a hard case, but the rule is a salutary one, because of the power a trustee would otherwise have to distress his cestui que trust. It follows that a solicitor, who is a trustee, may not derive any professional advantage from his trust, and may charge only for expenses Out of pocket, unless there is a clause in the instrument exempting him from the general rule. The Court vnll not, however, carry this rule to an unfair extent ; thus, where a solicitor was a trustee (Whitney v. Smith, L. K., 4 Ch. 513), and carried out a loan of the trust funds which led to further custom in his profession, the Lords Justices held he should not be charged with that. 2. Secondly, I come to fraud as it affects per- sons in a fiduciary position, which involves the doctrine of undue influence. The jealous precautions which the Court takes to prevent a trustee benefiting himself at the expense of his trust, have already been spoken of; the following case goes farther, and shows that where the relation of trustee and cestui que trust exists, the Court is particularly careful to prevent a trustee from using the influence belonging to his position in such a manner as to force the cestui que trust to do something which he was not legally bound to do. Such condjict wiU be undue influence, even though the trustee does not aim at any benefit for himself. In Ellis V. Barker (L. R,, 7 Ch. 104), a testator EQUITABLE FKAUD. 31 left to trustees a farm and farming stock, and desired that if the landlord would take his eldest nephew (the plaintiff) as tenant, he was to have the farm and stock ; he also gave the plaintiff's brothers and sisters certain legacies, which, however, feiled even- tually, and they took nothing under the wUl. One of the trustees was steward to the landlord, and told him of this hardship, and prevailed on him not to consent to take the plaintiff as tenant, unless he agreed to pay the brothers and sisters the legacies which they would otherwise lose. Thus he put pressure on the plaintiff by practically saying, " If you do not sign a deed, providing for these legacies, we wiU break up your farm." And the plaintiff, on filing his bill afterwards, obtained relief, and the deed was set aside on the ground that it was ob- tained by pressure and undue influence. The Courts have extended the principles on which they protect cestui que trusts against the pressure of their trustees to all persons in a position of trust, and to all cases where influence is acquired and abused, or where confidence is reposed and betrayed. (Kerr on Fraud, 132.) The leading case on undue influence is Huguenin V. Baseley, 14 Vesey, 273 (/), where a clergyman ingratiated himself with a lady of property and represented to her that her solicitors were mis- managing and neglecting her affairs, until by a ' remarkable letter, quoted in the report, she with- drew her affairs from them and eventually settled (/) Reported 2 White & Tndor's Leading Cases. d2 52 EQUITABLE FEAXID. her property on the defendant. Sir S. RomiUy's famous argument in reply in the case contains most that can be said on this doctrine of Equity, and the Lord Chancellor set the deed aside on the ground of general public policy. Other parties who are considered in a position of dominion, so as to make the Court careful that they take no advantage of their confidential position, are parents, guardians, solicitors and agents (^). The influence of a SOLICITOR over his client is held to be such, that if he takes a gift from his client, or contracts to take a gross sum in Heu of fees for past or fiiture services, the onus is upon him to show that the agreement is fair and reasonable, which duty is recognized and declared in the Attorneys and Solicitors' Remuneration Act, 33 & 34 Vict. c. 28, s. 4. It is stated on the authority of Hindson v. WeatheriU (5 D., M. & G. 301), that a solicitor can take a gift under a will prepared by himself, which he could not take if the instrument were a deed, and this, if it were so, would be a singular anomaly; but it seems doubtful if the Lords Justices intended to decide this in Hindson v. "Weatherill. What they said was, that the Ecclesiastical Court (the Probate Court now) was the proper tribunal to look into the question of fraud of this kind, and reference was made by L. J. Knight Bruce to a case where Dr. Lushington said, referring to the case of wills made in favour of medical men, that the Ecclesi- astical Court would be on its guard against undue ( j) See the notes to Hnguenin v. Baseley in 2 White & Tudor's Leading Cases. EQUITABLE FKAUD. 53 influence (note to p. 307 of the report of Hind- son V. Weatherill) ; therefore the anomaly was not that a solicitor could take a gift under a wiU which he could not take under a deed, but merely that one Court had jurisdiction in the case of a will and another in the case of a deed. In both Courts the same rule would be applied, that the burden of proving the fairness of the gift would tail upon the solicitor. This case so understood is another example of the rule above stated {h), that the question whether a will should be admitted to probate belongs to the Probate (formerly the Ecclesiastical) Court. If there had been some engagement on the part of the person obtaining probate to hold the property on some trust, which engagement he kept secret or refused to fulfil, that would have been a case, as we have already seen, for fixing a trust upon the bene- ficial interest. A special instance of undue influence, which, though not generally explained as coming under this head, undoubtedly does so (e), is what is called "feaxjd on a powee," e.ff., if a parent having a • power exercises it in favour of a son whom he persuades at the same time to apply the portion appointed for the benefit of some one outside the power, it is as much a fraud by construction of law, though of course not morally, as if a parent, having a power to appoint among children, appointed to a (/t) Ante, pp. 47, 48. (i) See the passage quoted below from Sir G. M. Giffard's juflgment in Topham v. Duke of Portland. 54 EQUITABLE FKAUD. son upon Ms death-bed, with a view of reaping the benefit in case of his death as his personal repre- sentative. And any kind of arrangement which the donor of the power did not intend is a jfraud on the power, e.g., an appointment on the understanding that the appointee shall' hold the fiind in trust for a person not an object of the power : for instance, if a tenant for life has power to appoint to children, it is well Icnown it would be wrong to draw a deed by which he should appoint to children and grandchildren ; the appointment- to grandchildren would be clearly void. But the appointor must know this also, that if he appoints to any child a large sum, having made such child promise to share the money with grandchildren, this too is void for fraud. Aleyn v. Belcher, 1 Eden, 132 (k), and Topham v. Duke of Portland, 1 D., J. & S. 17, and L. K., 5 Ch. 40, are the leading cases on this subject. The judgment of Lord Justice Giflfard in Topham V. Duke of Portland concisely expresses the eflfect of that decision and the ground of the doctrine as coming under the general head of undue influence. He says (L. R., 5 Ch. 60), speaking of the two deeds of appointment which the plaintiffs sought to set aside, " On the fiice of them they are in con- formity with the powers they refer to(Z), and are (J) Eeported 1 White & Tudor's Leading Cases. {I) This of course distinguishes the cases we are considering from those like Alexander v. Alexander (2 Ves. 640), where the excessive execution is patent on the face of the instrument of appointment. EQUITABLE FKAUD. 55 executed by the Duke of Portland. Previous deeds, also executed by the Duke (purporting to be in exercise of the same powers), in favour of Lady Harriett Bentinck to the exclusion of her sisters, were the subject of a suit, which came first before the Master of the Rolls, then before the Lords Justices, and afterwards before the House of Lords (m). The result of that suit was to set aside those deeds as invalid, because their real object and purpose was not to benefit Lady H. Bentinck as they professed, but to bring about a state of things resulting in an arrangement not warranted by the powers. . . . The evidence shows that . . . the arrangement was founded on what this present Duke believed to be the late Duke's wishes, and that Lady Harriett assented and was willing to assent to everything which he or his advisers con- sidered conducive to the end of carrying out of those wishes. In this state of circumstances no new appointment by the Duke in favour of Lady Har- riett can stand, unless the efiect and vnfiuence of this previous arrangement can be proved to have been obliterated .... the burden of the proof requisite to support a second appointment rests and ought to rest on the appointee. The reasons which in the case of a dealing oetween a solicitor and client throw the onus of proof on the solicitor, between a trustee and cestui que trust on the trustee, between a parent and child on the parent, and in the (to) Topham (Lady Mary) v. Dake of Portland, 31 Bear. 525; Topham v. Duke of Portland, 1 D,, J. & S. 517; Duke of Portland V. Topham, 11 H. L. 54. 56 EQUITABLE FRAUD. class of cases to which Huguenin v. Baseley (n)' belongs, on the persons seeking to sustain the gift, apply with equal force between the appointee in such a case as this and the person entitled in default of appointment. I am satisfied from Lady H. Bentinck's statements in her answer and her cross-examination that this original influence and obligation have existed, stiU exist, and are likely to exist. ... It foUows therefore that the appoint- ments cannot stand." There is another class of cases depending on the doctrine of undue influence, namely, where a re- settlement of a family estate is made, and the parent, by his influence and authority over the son, gains some advantage which he did not previously possess. But the principle laid down in Stapilton v. Stapilton (1 Atk. 2) (o), that the leaning of the Court is to sup- port reasonable fajuly arrangements and to lay hold of any just ground to carry them into execution, applies to these cases of resettlement ; and in order to make a case of undue influence in such a case, the onus is on the plaintiff; it has to be proved that the father induced the son to bar the entail for his own purposes, not for the benefit of the family. See Jenner v. Jenner, 2 D., F. & J. 359. Dealings with reversioners come within the same rules. We are all acquainted with those friends in need who write from various parts of London to inform us that " money can be raised by (n) Ante, p. 51. (o) Reported with notes, 2 White & Tudor's Leading Cases. EQUITABLE FEAUD. 57 them on reversionary interests at moderate rates;" and we all know how tenderly they deal with those who take advantage of such offers. The judgment of Lord Hardwicke in the case of Chesterfield v. Janssen (2 Ves. 125) {p), lays down clearly the prin- ciples on which the Court formerly acted in dealing with usm-ious contracts or catching bargains, and on which it still acts where there is what is called an unconscionable bargain, from which fraud and undue influence can be presumed. (Tyler v. Yates, L. E., 11 Eq. 265; 6 Ch. 665; Wyatt v. Coope 16 W. E. 502.) See also Lyon v. Home (L. R., 6 Eq. 655), and the judgment of Lord Selborne in the Earl of Aylesford v. Morris (L. R., 8 Ch. 484). The effect of 31 Vict. c. 4, is simply to prevent undervalue from being conclusive in the case of any purchases not impugned before 1st January, 1868, and not to shift the burden of proof from the pur- chaser to the seller. See L. R., 8 Ch. 490. The presumption is stOl in favour of the reversioner seeking to set aside the sale, and he will succeed in his suit unless the defendant proves that he has acted fairly: the Court stiU requires the defendant in this, as in other cases of personal influence, to disprove unfair use of that influence. 3. The third kind of equitable EKAUD is that which arises in connection with tkust estates AND equitable ASSIGNMENTS. We can easily perceive that in this particular the Common Law rule that nothing should be assignable (^) Reported 1 White & Tudor's Leading Cases. d5 58 EQUITABLE FRAUD. which could not be assigned by actual delivery, was preventive of fraud; thus, in the case oi goods, every one could see who was the owner of them by seeing in whose possession they were ; and even in the case of lands, though the title deeds might prove no more than a life tenancy in the holder thereof, still to that extent the possession of the deeds proved owner- ship {q) ; but when Equity, no doubt to the great convenience and advantage of commerce, introduced the principle of allowing choses in action and equit- able interests to be assigned in Equity, it is clear that a road was opened for a new kind of fraud. In the case of most choses in action there is no badge of ownership by which it can be known whether there has or has not been a transfer, and thus it is easy to see how the assignment of choses in action and of equitable estates, being abstractions not capa- ble of actual physical possession, as is the case with ownership of personal chattels, and even (through the title deeds) of real property, opens the way to fraud upon third parties. Eyall V. Rowles (1 Ves. 348) (r) is a most in- structive and interesting case on this subject, and shows that if a man buys any equitable property or chose in action transferable only in Equity, or takes a mortgage thereof, and does not give notice, but leaves the former owner in reputed ownership thereof, thus allowing him a delusive personal credit derived from that apparent possession,' such purchaser or (j) See on this point Mr. Justice Bnmett's judgment in Eyall v. Kowles, 1 Ves. 348; 2 White & Tador's Leading Cases, (r) Reported with notes in 2 White St Tudor's Leading Cases. EQUITABLE FRAUD. 59 mortgagee is postponed not only in banlaTiptcy(.s), but generally. Therefore an equitable assignee of choses in action or equitable interests cannot be safe as against subsequent assignees without putting, so far as the nature of the property admits, his mark on the property, or, in other words, giving notice. Thus, in the case of a trust fund being assigned in Equity, notice must be given to the trustee ; in the case of a debt, to the debtor, in the case of a policy of assurance, to the office ; where stock held in trust is assigned, a distringas (t) must be obtained, and where the chose in action is a fund in Court, the assignee must get a stop-order (u). See the notes to KyaU v. Eowles, ubi sup. 30 & 31 Vict. c. 144, was a statutory recognition, in the case of policies, of the right of assignment of choses ia action, and provided that aU assignees of life assurance policies may sue in their own names for the recovery of the monies assured, but no as- signment is to give such right to sue, until a written notice of the date and purport of such assignment shall have been given to the assurance company in the manner prescribed by the Act. The High Court of Judicature Act contains a special declaratory recognition of this equitable doctrine (36 & 37 Vict. c. 66, s. 25, subs. (6)), providing that any absolute assignment by writing of " any debt or legal chose in action of which express (s) 32 & 33 Vict. c. 71, s. 15, subs. (5) ; Ex parte Harding, L. K., 15Eq. 223. (t) See Morgan's Chancery Acts and Orders, 508. («; IHd. 506. 60 EQUITABLE FRAUD. notice in writing shall have been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and 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." This doctrine of notice, i. e., that an assignee, to save his priority, must give notice to the debtor, trustee, &c. (see supra), does not apply to real estate (Rooper V. Harrison, 2 K. & J. 86) ; and prior assignees of interests in land will only be postponed to subsequent assignees for negligence amounting to fraud, i. e., for extreme culpability in not inquiring for title deeds. The reason of this is, that estates in realty, and even, by analogy, equities of redemption, are held to pass by the conveyance, and to be carved out of the inheritance according to priority, and there is no question of reputed ownership. Every one knows that the apparent owner of land may have mortgaged it legally or equitably; hence it follows that "a mortgagee will not be postponed because he has not given notice, whatever may have been his motive in omitting to do so, but he will be postponed if there has been any conduct with re- ference to the title deeds, actually or by inference fraudulent." (Fisher on Mortgages, 587.) As Vice-Chancellor Wood said, in Rooper v. Harrison (2 K. & J. 100), if inconvenience arises from the absence of a rule requiring notice in the case of real estate, it can only be removed by the legislature introducing some system, by registration EQUITABLE FRAUD. 61 or otherwise, by which persons may have notice of the charges existing upon real estate. In respect of judgments, however, the doctrine of notice has practically been extended to real estate, and, in general, this policy of not letting equitable incumbrancers or transferees leave the former owner a delusive credit, gives the key to the judgment ACTS, the most recent of which. " assimilates the law affecting real property to tbat affecting personal property in respect of judgments" (a:), and allows no lien to be obtained until a return to the writ is made by the sheriff, and the land is actually delivered in execution (y). The phrase in the section quoted (p. 60, ante}, from the Judicature Act, that an absolute assignment of choses in action shall be effectual in Law, subject to Equities, leads us to a second aspect of the doctrine of notice, namely, that if any person, taking an assignment or conveyance of any property, has in fact notice that some one else has a legal or equit- able interest in the same property, he cannot shut his eyes and his ears and take the property free from such interest, except in cases within stat. 27 Eliz. {x) 27 & 28 Vict. c. 112, s. 1; Fisher on Mortgages, 91; Mor- gan's Chancery Acts and Orders, 355. (^) If there is any obstacle preventing the land from being delivered in execution, e. g. if the debtor's interest is an equity of redemption, the creditors' remedy is to file a bill to remove the obstacle. (Re Cowbridge Rail. Co., L. R., 5 Eq. 413, and cases there cited; Guest v. Cowbridge Rail. Co., L. R., 6 Eq. 619; Hatton V. Haywood, L. E., 9 Ch. 229; Beckett v. Buckley, L. R., 17 Eq. 435.) 62 EQUITABLE EEAUD. c. 4 (z). As to what is construed to be notice for this purpose, James v. Lichfield (L. R., 9 Eq. 50) and Phillips «). Miller (L. R., 9 C. P. 197) are good cases to show the need of careful inquiry for leases and for agreements contained in leases. The rule is that a purchaser of land, which he knows to be in the hands of a tenant, cannot after he has completed his pur- chase get rid of his bargain, or get compensation, because he finds afterwards that the tenant has a lease or certain rights of which he was not informed; but a recent case before the Master of the Rolls and Lords Justices has established, that as between vendor and purchaser, previously to the completion of the purchase, the doctrine does not apply to the same extent ; if there is anything in the nature of the tenancies which afiecta the property sold, the vendor is bound to teU the purchaser and to let him know what it is which is being sold, and the vendor cannot afterwards say to the purchaser •' if you had gone to the tenant and inquired you would have fovmd out all about it." (CabaUero v. Henty, L. R., 9 Ch. 447, 450.) The cases on priority being lost by having CON- STEUCTIVE EQUITABLE NOTICE are numerous (a). Maxfield v. Burton (L. R., 17 Eq. 15) is a very recent one, where the owner of real estate had mort- gaged it by a pledge of the title deeds to his bankers, and on his marriage he did not teU the intended wife's solicitor of the charge, and the solicitor was satisfied (z) See ante, p. 36, as to assignments void against purchasers nnder this Statute of Elizabeth. {a} See Dart on Vendors and Purchasers, 783. EQUITABLE FRAUD. 63 ■without making inquiry. Jessel, M. E,., said he was sorry for the wife, but considered that as between the bankers and the wife, who took her husband for better or for worse, there was no Equity other than the ordinary one. She had constructive notice through her legal adviser, and could only take sub- ject to the bankers' charge. The leading case on the subject of taking with notice, and especially with constructive notice, is Le Neve V. Le Neve (Ambler, 436) (&), where it was held that a registered conveyance must be postponed to a previous unregistered conveyance, of which the later purchaser had notice. But it requires a strong case thus to infringe upon the policy of the Regis- tration Acts. See the recent case of Re Wright's Mortgage Trust, L. R., 16 Eq. 41, and the authorities therein cited. When the assignment is of an equitable nature, the rule that it must be taken subject to equities ap- plies with greater force, for he "who comes into Equity must do Equity. Several cases on this subject will be found under the last head of the note in 2 "VYhite & Tudor's Leading Cases to EyaU v. Kowles, and they have been very frequent of recent years, the question having frequently arisen whether securities issued by a company to a contractor or other person, and negotiated by him, remained in the hands of the transferee subject to the equities at- taching on them as between the contractor and the company. See Henry Holden's case, L. E.., 8 Eq. (J) Reported with notes in 2 White & Tudor's Leading Cases. 64 EQUITABLE FRAUD. 444, 448; South Blackpool Hotel Company, ibid, 225; Ee Northern Assam Tea Company, L. E.., 10 Eq. 4.'58; Kodger v. Comptoir d'Escompte de Paris, L. E., 2 Priv. Counc. 393, 405 ; Ee Im- perial Land Company of Marseilles, Ex parte Col- borne and Strawbridge, L. E., 11 Eq. 478, and cases there cited. It follows from these cases as to fraud and notice that the maxim " Qui peiok est tempore potior EST jure " must be understood in a carefully qualified sense, and that priority of time only avails in de- ciding on priorities if equities are equal. See Eice V. Eice (2 Drewry, 73), with the judgment in which every aspirant to a knowledge of Equity ought to be perfectly familiar. Finally, if equities are equal as between two claimants of the same estate, but one of them having purchased for value without notice has also the legal estate, he will not be interfered with in Equity, which simply remains passive. The principle is, that he who has innocently paid his pm-chase-money is as favourably considered as he who has by some other Equity a claim to the same property; and if the former has the legal estate also, ,he shall not be de- prived of it or of the advantage thereof Basset v. Nosworthy (Eep. temp. Finch) (c) is the leading case on this point, and with that we may fitly end our discussion of Equitable Fraud, for we are brought back to our original point, that where there is no paramount trust obligation. Equity foUows the Law. (c) Eeported 2 White & Tndor's Leading Cases. ( 65 ) CHAPTER IV. LUNATICS, INFANTS, MAEKIED WOMEN. I PROPOSE in this chapter to speak of what Mr. Smith calls " protective Equity in favour of persons under disability" (a) ; in other words, the jurisdiction of Equity to protect lunatics, infants, and married women. Mr. Haynes(5) treats the subject as be- longing to the exclusive Chancery jurisdiction, but treats it separately from the ordinary jurisdiction over trusts; but we shall find that this jurisdiction is seldom, if ever, called into exercise unless there is some trust to be executed (c). Thus, though the care of the persons of infants is said to belong to the sovereign and to be delegated to the Court of Chan- cery, yet it is admitted in WeUesley v. Duke of Beaufort (2 Euss. 21), that this jurisdiction wUl only be exercised where the Court has the means of ap- plying property for the use and maintenance of the infant. 1. First, as to lunatics. It is well known that the Court of Chancery has no jurisdiction as a Court over lunatics; we cannot take questions about their property or guardianship before the Vice- Chancellors; for lunatics are assigned (a) See Smith's Manual, Table of Contents, title 5. (J) Lectures, pp. 100, 129, 130. (c) Smith's Manual, 431. 66 LUNATICS, INFAJfTS, MARRIED WOMEN. to the protection of tlie Lord Chancellor personally. It seems that the origin of this jurisdiction is a sta- tute by which the Crown is made trustee of the pro- perty of lunatics (tf) ; but at any rate it speaks well for the Christianity and charity of the laws of Eng- land, that these terribly afflicted persons who are under this most pitiable of all disabilities should be placed under the tender care of the highest and most responsible officer of the state, and that the charge is deemed so personal and so important that it can- not be delegated even to the Court of Chancery, but is given by statute only to those who sit on the same bench with the Chancellor— rthe Lords Justices of Appeal (e). There is a recent and very important case which forcibly illustrates the peculiar nature of the Chan- cellor's jurisdiction in lunacy, and at the same time contains a serious warning for the lawyer, namely, Beall V. Smith (L. E., 9 Ch. 85). In that case the facts were as follows : — The lunatic, a Mr. BeaU, was found by the police wandering about the streets; he was taken before the magistrates, examined by medical men, and placed in an asylum as a person of unsound mind, who, it was thought, had better be imder supervision for a while ; but his family hoped he would recover, and therefore did not at first get an inquisition to declare him a lunatic in the eye of the law, so as to {d) See Statutes of the Realm, Temp, incert. PrserogatiTa Regis (in Rnffhead, 17 Edw. 2, c. 10); Smith's Manual, 446. (e) See 15 & IG Vict. c. 87, ss. 14 and 15, set out in Morgan's Chancery Acts and Orders, pp. 227, 229. LUNATICS, INFANTS, MAEEIED WOMEN. 67 bring him within the Lord Chancellor's jurisdiction. Mr. Beall was a shopkeeper and had property worth about 4,000/., and this put his manager and agent into an embarrassing position. He wanted to render ac- counts, but there was no one who could give him a discharge. If Beall had been found a lunatic by inquisition, then the Lord Chancellor and Lord Justices would have had the personal care of him and would have appointed a committee in the regular course to take care of his property, and an application could have been made to the Chancellor or Justices, sitting in lunacy, by which the manager and agent could have been discharged and released from responsibility. But as there was some hope that it would not be necessary to take proceedings in lunacy, it was de- termined for the present to treat Mr. Beall as an ordinary cestui que trust, and a bill was filed to take the accounts of the business and release the manager from his agency, and V.-C. Wickens made an order in Chancery appointing a receiver and manager of the business. So far this was nothing but an ordi- nary trustee suit, nothing to do with the lunacy; otherwise the Vice-Chancellor could have had no jurisdiction. It was said in the judgment in this case, and it will be well to remember, that though the Court of Chancery will act in the affairs of a person of unsound mind not found a lunatic (f), just as in the case of an infant, yet anybody taking such proceed- ings on behalf of the person unable to act for himself does so at his own risk and must be prepared to vin- (/) See Jones v. Lloyd (May 4, 1874), 22 Weekly Reporter, 785. 68 LUNATICS, INFANTS, MARRIED WOMEN. dicate the necessity and propriety of his proceeding, just like any other guardian, and must bear the con- sequences of any xmnecessary proceedings; and if the person for whom he is acting recovers his reason there is the risk that the proceedings may be objected to and any unnecessary expense repudiated. But, even supposing the proceedings were so far right in this case of Beall v. Smith, the solicitors were not content with this short and simple proceed- ing, but even after BeaU had been properly found a lunatic by inquisition, which very soon happened, the solicitors continued the suit on his behalf — and in this they were held to be doing what was entirely unjustifiable — and had to pay aU the costs of the suit personally and as between solicitor and client, which are the heaviest costs that can be imposed. The reason of this was, that after the inquisition the Crown by its proper tribunal having the limatic and aU his afiairs under its exclusive care and guardian- ship, the power of any person to commence or prose- cute any proceedings for his protection was taken away, and, as Lord Justice James said, " there is no inconvenience or injustice in this, — application can at all times be made to the Court for anything that may require or may be just to be done; and no doubt if any person who had interfered for the pro- tection of a lunatic could satisfy the Court that he had acted bona fide and for the benefit of the limatic, the Court would reimburse him as it would reim- burse any other person who had rendered services to the lunatic." The Court therefore decided that any attempt to LUNATICS, INFANTS, MAKEIED WOMEN. 69 deal with a lunatic's property after the inquisition in an ordinary suit amounts to a gross contempt of the Court in Limacy. 2. Secondly, as to infants. There is no question that the principle on which the Court takes infants under its protection is as trustee and guardian of their property, so that this also must be considered as part of its trust jurisdic- tion. There is also no question that when once the judge has made an infant his own cestui que trust, or what is ordinarily called a ward of Court, he will proceed to take cognizance of other matters relating to the infant's welfare. ITor example, he will appoint a personal guardian for the infant if necessary (Eyre v. Countess of Shaftesbury, 2 Peere Williams, 103) (y). But the right to appoint guardians of children belongs at Common Law to the father only ; and with this as with other Common Law rights, unless it be waived or neglected by him, the Court wiU not interfere; it is only when the father appoints no guardian, or when the father has by misconduct and neglect lost his right, that the Court wiU, if there is property which it can undertake the trusts of, ap- point a guardian, as in E,e Kaye (L. E.., 1 Ch. 387), a case in which the jurisdiction is carefully pointed out and the principles of selection stated. Where there is no trust property in Court, upon which to foimd an exception to general rules, it will be found that the manner in which the Court treats infants very strongly exemplifies the maxim that (^) 2 White & Tudor's Leading Cases. 70 LUNATICS, INFANTS, MARRIED WOMEN. " Equity follows the Law," for not only in respect of the guardianship, but in all other respects, the Court of Equity takes the same view of the responsibility of a father as the Common Law does, and wiU not allow him to renounce his duties, which are to care for and see to the due education of his children. Thus, in a recent case, Hamilton v. Hector (L. E.., 6 Ch. 701), it was very seriously considered by Lord Hatherley whether a father could even contract with his wife (from whom he was unfortunately separated owing to differences between him and her), that the children should pass a certain part of their holidays with her instead of with him. Lord Romilly, M. K., had refused to assist the wife to enforce the agree- ment, but Lord Hatherley held, upon consideration, that this was not a substantial waiver of his paternal responsibility, but only a proper provision under the circumstances : this then was one of those exceptions which test and prove the rule. Andrews v. Salt (L. E,., 8 Ch. 622) is an important case, showing, first, how the Court only deals with infants as trustee of their property, and so having once became their trustee, then as their general guardian if necessary ; and, secondly, in what manner a father may waive his paternal right and responsi- bility. It was a case where a father had by will directed that his girl should be educated as a Roman Catholic, and that his brother, a Roman Catholic, should be her guardian, but she was allowed by this uncle to live with her mother till the age of ten, in accordance with an agreement between the father and mother that the boys should be educated in the LUNATICS, INFANTS, MARRIED WOMEN. 7 1 father's religion, and the girls in the mother's, and for this ten years neither the father, nor after him the father's brother as guardian, had interfered. After the ten years' however, the uncle thought fit to claim the custody of the girl, and at Common Law his authority as appointed guardian was not to be denied: he came to the Queen's Bench, and that Court reluctantly held that they had no discretion to reftise him a writ to take the child from the mother (L. E,., 8 Q. B. 153). What did the mother's advisers then do ? They -put 20Z. into the names of trustees for the child, and then filed a bill to make her a ward of Court, and to administer the trusts of this vast property. This of course was a legal fiction, and the reason of it is clear, because a trust being once created and the Court made the guardian of the infant, the Court of Equity was no longer dealing with mere legal rights, and therefore was not in conflict with the Law if it as paramount guardian took a more liberal view of what was for the benefit of the infant. This fiction then havins: been gone through, and the Court of Chancery having jurisdiction, the Lords Justices (affirming V.-C. Malins) held that the father and the guardian appointed by him must be held to have waived or neglected the Common Law guardianship, and that it woidd be prejudicial to the happiness and prospects in life and health of the girl to take her away from the mother. The Custody of Infants Act (2 & 3 Vict. c. 54, repealed and extended by 36 & 37 Vict. c. 12), is a statutory recognition of this equitable prin- 72 LUNATICS, INFANTS, MARRIED WOMEN, ciple, and gives the Court jurisdiction upon petition to let mothers have access to or the custody of their children under sixteen years of age, instead of the fathers, in proper cases : and a provision giving the custody of children to mothers is not i'pso facto to make a separation deed invalid. See Lord Cot- tenham's words in Warde v. Warde, 2 PhiU. 787 {K). I quote another statute about infants, providing for INFANT SETTLEMENTS, 18 & 19 Vict. C. 43, aS a connecting link between the jurisdiction over infants and that over married women. By that statute (i) it is provided, that infants (if male not under twenty, if female not under seventeen years of age) may, with the approbation of the Court, make valid settlements of real and personal estate upon marriage. 3. As to MARRIED WOMEN. This is a large subject, and can only be slightly touched upon ; I shall, however, endeavour to show that here also Equity follows the Law, excepting where it deals with property subject to a trust ; but where there is property of the wife in its hands as trustee, or in trustees' hands, then it takes the wife's rights under its special care, and corrects the harsh doctrines of the Common Law. The Common Law rule (which Equity follows in the absence of any contrary trust), is that the husband takes all the wife's personal property in possession, and all her choses in action {i. e., per- (7i) Quoted Morgan's Chancery Acts and Orders, p. 8. (i) Morgan's Chancery Acts and OrderSj 233. LUNATICS, INFANTS, MARRIED WOMEN, 73 sonal property not in possession) which he can re- duce into possession, as his own property, on the presumption that he will duly support and maintain her and the children of the marriage. The Covtrt of Equity not only does not dispute but even assists actively this Common Law right of the husband, and goes so far as to say, that at the date of the betrothal the yoimg man agrees to take the yovmg woman with all her incidents. And therefore, that if during the course of the treaty for marriage the intending wife makes away with any of the property which the intending husband agreed to take as part and parcel of herself, such transaction is a fraud on the jiaeital rights and will be set aside : but of course the Coiirt will not interfere in favour of the husband unless it con- siders that there really was a fraud upon him, a scheme, in fact, to deprive him of his Common Law rights. The well-known leading case on this sub- ject is Countess of Strathmore v. Bowes (1 Vesey, jun. 23) {k). Lady Strathmore was a very wealthy person and agreed to marry a Mr. Grey. She conveyed and assigned all her property to trustees, with Mr. Grey's approbation, on the usual trusts for her separate use, in the event of that or any other coverture. A few days later she heard that Mr. Bowes had fought a duel for her with the editor of a newspaper who had traduced her character, and this so won the lady's affections, that with that im- pulsiveness of generosity which characterizes many (k) 1 White & Tudor's Leading Cases. 74 LUNATICS, INFANTS, MAKRIED WOMEN. of the female sex, without waiting to ask whether the duel had been fought for herself or for her fortune, or indeed whether the duel had been fought at all, she threw oyer poor Mr. Grey, and threw herself and her fortune into the arms of this valiant duellist and married him the next day. As a matter of fact the duel was a sham one, and was invented as an artifice in order to obtain this lady's fortune. Mr. Bowes did not know anything of the above- mentioned settlement of the lady's fortune, and no doubt expected to find her free and unfettered in purse as well ^s in person, and when he discovered what had been done, he was indignant at this having been done without his knowledge, and tried to set aside the settlement as a firaud on the marital rights ; but Lord Thurlow held, that the question was whe- ther there was firaud in what Xiady Strathmore had done, and he decided that there was none; the reason that the settlement was not communicated to Bowes was the hurry and confusion which his own iniquitous conduct had produced, and it was im- possible for a man marrying in the way Bowes did, to come into Equity and talk of fi-aud ; indeed, this is a real example of the maxim mentioned, p. 15, ante, that " He who comes into Equity must come with clean hands." Craven v. Brady (L. R., 4 Ch. 296) is another strong example of Equity following the Law, and merging the wife in her husband. A man left pro- perty to his widow for her life ; but if she did any- thing whereby she should be deprived of the rents and profits or the right to receive them, her life LUNATICS, mFANTS, MARRIED WOMEN. 75 estate should cease. This proviso being made, the ladj married one Charles Brady, and no settlement was made. No doubt Mr. Brady thought he had made a very successful venture, but never was a greater instance of a slip between the cup and the lip ; for it was decided in a suit that the lady having married without a settlement, her husband took the rents, and she was, therefore, under the proviso deprived of the control of the property ; and both the Master of the RoUs and Lord Chancellor on appeal were obliged to come to the conclusion that this neglect to execute a deed on the second mar- riage, by which the rents should be secured to her alone, created a forfeiture of the estate. It is to be hoped that Mr. Brady was not tempted to tie him- self up in this particular matrimonial chain under the impression that it was a golden chain ; if it was so, the result was a very unfortunate example to him of the old proverb that " all is not gold that glitters." Equity, however, while following Common Law rules, in the absence of any trust to the contrary, takes advantage of the existence of a trust where it can to soften the rigour of the Common Law ; and this it does — (A.) By encouraging and enforcing settlements of married women's property. (B.) By protecting their property in certain in- stances independently of any settlement, on the ground of property of the wife being in the hands of the Court as trustee. E 2 76 LUNATICS, INFANTS, MAEEIED WOMEN. (A.) The Court enforces settlements of the wife's property on marriage, of which the ordinary provisions are — (1.) Certain part of the property goes to the trustees for the wife's separate use. (2.) Other part perhaps goes to trustees for the husband for life, but with a ffift over for the wife and children, if he does anything to forfeit or aliene it, (3.) After-acquired property which may fall in for the wife diu'ing the marriage is settled so as to go, not to the husband, but to the trustees for the wife and children. Such settlements the Court of Chancery will pro- tect, even if the settlement is after marriage, and therefore voluntary; for the case of Ellison v. EUison (6 Vesey, 656) (A) shows that as between a husband and his wife and children such a settlement is irre- vocable, though as between him and his creditors or subsequent purchasers it is voidable imder the statutes of Elizabeth (Z). I take these three common provisions in order. (1.) As to her separate use. The leading case on this poiut is Hulme v. Tenant (1 Brown's Ch. Cases, 16) (tw). Mr. Lewin points out that the separate use is not an instance of Equity refusing to follow the Law (m), for modus et conventio vincunt legem ; and a stranger may make a gift to (K) 1 White & Tudor's Leading Cases. (J,) See ante, pp. 35, 36. (to) 1 White & Tndor's Leading Cases, (re) Lewin on Trustees, 537. LUNATICS, INFANTS, MARRIED WOMEN. 77 the wife even during marriage, and if he clearly ex- presses that it is to be for her separate use, it wiU be so. The usual way of settling property to a lady's separate use is, as we know, for her to have the income for life, and not to have power to anticipate such income : this is in order to prevent her from mortgaging or selling future income under persuasion of her husband or any one else, and at her death the corpus is divided among the children. A new point arose in Ellis's Trusts (L. E., 17 Eq. 409), viz., whe- ther an absolute gift to a married woman could be legally qualified by a proviso restraining anticipation during coverture; and Sir G. Jessel, M. E., held that even in such a case the restraint on anticipation was valid. If, however, property be absolutely given or se- cured to a married woman for her separate use, without a proviso restraining her from anticipating the income, it is settled that she is to all intents and purposes in the position of a feme sole, so as to be able to dispose of that estate by will or deed; and this applies even to real property, notwith- standing the general rule that the heir of a married woman cannot be affected by any instrument except a duly-acknowledged conveyance in which both husband and wife concur. See Taylor v. Meads, 34 L. J., Ch., N. S. 203 ; Pride v. Bubb, L. E., 7 Ch. 64. (2.) As to the proviso for forfeiture of the husband's life interest on bankruptcy, I may refer to a valuable note on Settlements in Prideaux's 78 LUNATICS, INFANTS, MAEEIED WOMEN. Conveyancing, Vol. II., where the subject is dis- cussed, and to the following recent cases : Trappes v. Meredith, L. E., 9 Eq. 229 ; 10 Eq. 604 ; 7 Ch. 248 ; Amherst's Trusts, L. E., 13 Eq. 464 ; Billson V. Crofts, 15 Eq. 314; Aylwin's Trusts, L. E., 16 Eq. 585. (3.) As to the COVENANT TO SETTLE THE FUTURE PKOPEETT of a wife (o) : the object of that is to pre- vent its falling under the sole control of the husband, and therefore it prima facie does not apply to pro- perty falling in after the coverture, i. e., after the husband's death. Thus, in Ee Edwards (L. E., 9 Ch. 99), the covenant was, " in case after the mar- riage the wife, or husband in their right, should be- come entitled to any property, such property should be vested in the trustees of the settlement." The clause was not worded as it would have been if cor- rectly drawn, " during " the marriage, but " after''"' it. So that when money feU in for the wife after her hus- band's death, this was strictly "after" the marriage, and it was doubted whether the money ought not to be settled so as to give the wife only the income ; but the Court (on the principle that the written deed did not represent the real contract between the parties) ( jo) held that the wife took what fell into her possession after the husband's death free from any liability to settle it. And, as the covenant does not include property falling in after the termination of the coverture, so it (a) See the Dissertation on Settlements in Vol. II. of Prideaux's Conyeyancing for some valuable notes on this subject. (^) See Chapter VIII. on Mistake. LUNATICS, INFANTS, BIAEKIED WOMEN. 79 does not include property which in any sense was in the lady's possession before the coverture began. Ee Browne's Will (7 Eq. 231) is an instance of this. There a lady owned a tontine debenture — a tontine is an arrangement by which an annual in- come, say the profits of a bridge, is divided among all the people who paid for the buildiag of the bridge for their lives, and as the lives drop off the survivors take the profits, tUl, at last, the longest liver takes the whole income — this lady, having a tontine share, married, and her settlement contained a covenant to settle aU property which vested ia her by transmis- sion, gift or otherwise ; her tontine share grew in course of years, till fi-om being worth only 11. 10s. a year it became a very valuable property, and the question arose, ought not the accretions to be settled ? Lord EomiUy, M. E,., held the clause did not in- clude the tontine share ; it pointed to after-acquired property, i. e., property which she should become possessed of after the marriage ; but before her mar- riage she was possessed of the property, and the fact, that fi'om the nature of the property and the circum- stances which happened, it became more valuable year by year, did not affect the question any more than if she had been possessed of a mine at the time of the settlement which subsequently became of very great value. Thus, it appears that the Court wiU not make these covenants include more than is consistent with the general intention, because they are exceptions to the Common Law rule, giving the husband the control 80 LUNATICS, INFANTS, MAEEIED WOMEN. of tHe wife's property, as being her natural supporter and protector. (B.) Independently of settlement the Court of Chancery protects married women's property, on the ground that such property is in the hands of the Court as trustee. The species of property to which the protection of the Court is most usually given are equitable CHOSES IN action, in respect of which, — (1.) The wife is entitled to her equity to a SETTLEMENT, in casc she asks for it, or if the husband has to apply to the Court. (2.) The wife has a right in a eeveesionaet CHOSE IN ACTION by Survivorship which she cannot generally destroy. (1.) As to the EQUITY TO A SETTLEMENT. Equity, like Common Law, permits the wife's chose in action to belong to the husband if he can reduce it into possession: if not, it goes to the wife at the dissolution of the marriage, whether such disso- lution takes place by death or hy divorce, as in Prole V. Soady (L. E., 3 Ch. 220), in which case a Mrs. Jeyes was entitled, absolutely, to a share in I5,000Z. consols which was in Court to the credit of a suit — and this equitable chose in action the husband mortgaged, his wife joining in the mortgage. The money was carried over to the account of Mr. and Mrs. Jeyes, but as it was not paid out to them, the effect of that was simply to leave the money subject to any rights which the husband and wife might have over it. Soon after that a divorce was sued for by Mrs. Jeyes LUNATICS, INFANTS, MARRIED WOMEN. 81 and a decree made, and she claimed lier ordinary right to the consols as not having been reduced into possession. Stuart, V.-C, decided that the mortgagee ought to have his charge, but Lord Cairns overruled the de- cision, and said, " It was argued that it is a dishonest and unjust thing that the lady should be allowed to assert her right of survivorship, but the law says, that married women shall bind their property by aliena- tion in certain specified methods, and if those methods are not resorted to it is at the peril of those who act without resorting to them. The Court cannot enter- tain the question of justice or injustice in such a case." But if the husband does get a chose in action into his possession then it belongs to him, and Equity will not interfere to prevent this being done. But will the Court of Equity allow him to reduce it into possession if it is an equitable chose in action ? That depends — an equitable chose in action may be either personal property vested in trustees for the married woman (and not settled by her pre- viously to marriage when she was a feme sole), or personal property which cannot be got into posses- sion without application to the Court of Chancery, the money being in Court, as in Prole v. Soady (J.oc. cit.) ; and the rule is, if the husband needs the arm of the Court to reduce this property into possession for him, then the judge says, " I am a trustee for your wife of this property, and will not assist you unless you do Equity and make a proper settlement." See E 5 82 LUNATICS, INFANTS, MARRIED WOMEN. Sturgis V. Champneys, 5 Mylne & Cr. 105(5'). But as to property vested in a trustee, it is of course possible that the trustee may, without the knowledge of the Court, pay it to the husband, and in that case the husband's right is not controlled by the Court. A legacy left to a married woman, even though there be a legal remedy by distress to recover it, comes (if it gets into the Court of Chancery) suffi- ciently within the power of the Court as trustee to make it subject to this Equity. In Duncombe v. Greenacre (2 De G., F. & J. 509), Mr. Ames left all his land to his son, but charged a legacy of 1,000Z. on it for the benefit of his daughter, Mrs. Duncombe, to be paid on his widow's death, and he gave Mrs. Duncombe legal power to raise the 1,000/. by distress and entry. Mr. Duncombe was a spendthrift and a reckless husband, and raised money on the 1,000Z. legacy, by mortgaging it to the Family Endowment Society for 5801., and then became bankrupt. The Family Endowment Society claimed the 1,000Z. assigned to them, on the ground at which I have hinted, that the legacy could be recovered by legal remedies of distress and entry, and there could be no interference of the Court with a Common Law right. But the Master of the RoUs, and Lord Campbell affirming him, held, that a legacy is a kind of interest which can be sued for in Equity, and that the addi- tional legal remedy here given did not take away the « Cq ) Cited in the notes to Lady Elibank v. Montolieu and Murray V. Lord Elibank, 1 White & Tudor's Leading Cases. LUNATICS, INFANTS, MARRIED WOMEN. 83 jurisdiction of the Court of Equity over the legacy as a trust fund, when once a suit in the nature of an administration suit was commenced, and he decided that the wife should have her settlement. The Equity to a settlement applies to all kinds OF PROPERTY, as wcU as to choses in action (though they are the most usual instance of it) ; i. e. all pro- perty which must be got at in Equity, and it is always given as one of the best examples of the maxim He who comes into Equity must do Equity; the Court of Chancery wiU not assist or in general allow the husband to recover or receive any property of his vsdfe which he has to recover in that Court without settling a due proportion on his wife and children. The right is personal to the wife and may be waived by her, and if she dies before decree the children cannot enforce it; if, however, she dies after decree, the settlement wiU be made for their benefit. The leading case on the subject of the Equity to a settlement is Lady Elibank v. Montolieu (5 Ves. 737) (r), where it was decided, that though if the husband can get the trustees or executor to pay him the fund, he can give a good receipt for it, and the Court of Chancery will not interfere with him (just as we shall see in the next Chapter, that if a creditor can persuade an executor to prefer his debt to other debts, the Court of Equity will not afterwards inter- fere with such Common Law right) (s), yet (as the mere filing of an administration suit will prevent (r) 1 White & Tudor's Leading Cases. («) Post, p. 91. 84 LTTNATICSj INFANTS, MARRIED WOMEN. such powers of preference), the wife may take pro- ceedings to enforce her equity to a settlement if she suspects that the trustee of her fund will not make the claim on her behalf. But suppose the husband, instead of claiming the trust fund to be paid to himself, assigns it in Equity to a third party? Can she claim her Equity against the third party, the assignee ? Certainly she can, as a general rule, and more especially if the assignee is the trustee in bankruptcy of the husband, for then it is clear the husband is not supporting her, and it is on the presumption of his supporting her that he has the legal right to her property. But there is one exception to the rule that the wife may assert this Equity as against the husband and his assignees, which is, that unless the husband is banlcrupt, which effectually rebuts the presumption of his supporting her, and gives the wife a clear Equity to a settlement, she is not generally allowed a settlement out of a life interest only, for then the principal argument for a settlement — i. e., a provi- sion for the children after her death — is wanting. See Tidd v. Lister, 10 Hare, 140. The proper form of settlement is laid down in Walsh V. Wason, L. R., 8 Ch. 482. (2.) If the EQUITABLE CHOSE IN ACTION be IN REVERSION, the Court of Equity will not permit any arrangement with the life tenant for the purpose of merging the particular interest with the reversion and then assigning it as an interest ia possession. In short, the Court thus preserves to the wife her con- LUNATICS, INFANTS, MARRIED WOMEN. 85 tingent interest in the chose in action in the case of her survivorship ; for so long as the reversion re- mains a reversion the husband cannot assign it, because his assignment would always be subject to be defeated by his death before it became a present interest capable of being reduced into possession, and the feme covert cannot of course deal with it, having no interest in personalty apart from her husband, excepting, indeed, in certain cases under the provisions of Malins' Act, 20 & 21 Vict. c. 57 (0- The important case of Whittle v. Henning (11 Beav. 222; 2 Phil. 731), decided that the Court would not allow any merger of the particular estate with the reversion to destroy this contingent interest of the married woman in the case of a fund in the hands of the Court. Lord Cottenham said, that " the Court would not by analogy to law establish an equitable merger for the sole purpose of depriving the wife of this pro- tection to her reversionary interest, which would be to permit a supposed analogy to the rules of (Com- mon) Law to defeat the rules and practice of the Court in the protection it affords to married women, though in all other cases it disregards the rules of (Common) Law, and the rights of husbands when they interfere with such rules and practice ; what this Court protects is the reversionary life interest of the wife, and for that purpose it will consider it stiU as reversionary, notwithstanding other parties interested in the fund may, for the purpose of de- (t) See, as to this Act, Lord Selbome's judgment, Re Batehelor, L. E., 16 Eq. 481. 86 LUNATICS, INFANTS, MARRIED W03IEN. priving her of such reversionary interest, by enabling her to dispose of it, endeavour to unite in her person all the other interests in it." It is worthy of note, that the 25th section of the Judicature Act, subs. (4), expressly provides, that there shall not after the commencement 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 in Equity. Having thus ti'eated of the protection afforded by Courts of Equity to married women, it only remains to point out that she does not acquire the aforesaid right without becoming subject to corresponding liabilities. Thus, though she cannot be bound by her contracts or frauds personally, it was held that her separate estate might be made liable to satisfy her engagements in writing, by Vice-Chancellor Kindersley, in Vaughan v. Vanderstegen, 2 Drewry, 165, of which report pages 179 — 184 should be read. This case was followed and extended in Sharp v. Toy, L. E., 4 Ch. 35, and in Picard v. Hine, L. E., 5 Ch. 276, where Lord Hatherley and Lord Justice Giffard, referring to the judgment in Johnson v. GaUagher (30 L. J., N. S., Ch. 298), said, "When a married woman allows the supposition to be made that she intends to perform an agreement out of her own property, she creates a debt which may be re- covered not by reaching her, but by reaching her property. The legislature has now recognized in the Mar- ried Women's Property Act, and adopted (33 & 34 Vict. 0. 93) the doctrine of Equity, that a married LUNATICS, INFANTS, MARRIED WOSIEN. 87 woman's sepai-ate property can be made subject to her debts. Sect. 12 of tlie statute provides, that a husband is not to be hable for the debts of the wife before man-iage, but the separate property of the wife (including her earnings, her deposits, stocks, shares, interests in benefit societies, property ac- quired after marriage, policies of assurance) (ss. 1 — 10) is made liable to them, and for the purpose of reaching it she is to be subject to the ordinary pro- cess of Law or Equity. It seems, however, that there is no process pro- vided by way of bankruptcy or otherwise for reach- ing the separate property of a married woman before her death for the purpose of equitable, i. e. rateable, division, but each creditor must sue for himself alone. And it was decided by Lord Cairns and the Lord Justice James, in Ex parte Holland, re Heneage (L. K., 9 Ch. 307), that a married woman cannot be adjudicated a bankrupt at all; Lord Justice MeUish, however, preferring to leave it undecided whether she might not become bankrupt in respect of separate property. After the death of the married woman a bill may be filed to administer the separate estate for the benefit of creditors ; Owens v. Dickenson (Cr. & Ph. 48); and then the debts are paid pari passu, the reason apparently beiag not that such assets are trust or equitable assets (m), but that the circumstance of a debt contracted by a married woman being secured by specialty ^2ue* the creditor no priority. (Anon., 18 Ves. 258.) («) Ante, p. 11 J post, p. ^2. CHAPTEE V. ADMINISTRATION. In this Chapter we shall speak of Administra- tion (a) generally. Administration may be either of trusts or of Common Law rights. The administration of trusts belongs of course to the exclusive jurisdiction of the Court of Chancery, and will be new to the divisions of the High Court of Justice, other than the Chancery division ; but as regards the administration of Common Law rights a distinction must be made ; for though where such administration involves complication and difficulty the Court of Chancery has exclusive jurisdiction to grant a complete remedy by way of adjustment, yet the rights, being Common Law rights, are, in cases not so complicated, equally subject to Common Law jurisdiction. Let us take a case illustrating the concurrent nature of this jurisdiction. In Owen v. Delamere (L, E., 15 Eq. 134), a bill was filed for administra- tion, the plaintiff alleging himself to be a creditor of the business of the testator ; but it was held, that the debt was only a debt against a portion of the estate severed from the rest, and that there was no case for (a) Corresponding to Mr. Smith's title " Adjustive Equity," and including the adjustment of accounts in general, mortgages, appor- tionments, partnerships and sureties. ADMINISTRATION. 89 a general administration ; this is an example clearly illustrating how those rights which Courts of Equity administer where there is complication, Courts of Common Law can and ought to administer when they come singly and without complication ; in other words, the right is a Common Law right, but if adjustment is needed, that peculiar remedy can only be had in Equity. And why is this ? Is it simply because the Courts of Equity acquired a machinery for dealing with adjustments in general by reason of their jurisdiction to deal with trusts ? or is it because, as Mr. Josiah Smith suggests, there is in cases of adminis- tration (especially of assets) a constructive trust? Probably both reasons are partially true. For example, the administration of deceased persons' estate, if it is compHcated, comes into the Court of Chancery, in order to obtain more complete relief and adjustment of claims than a Common Law action or actions would give ; and having once been taken in hand for this reason, the further proceed- ings are carried on under the ordinary trust jurisdic- tion ; for the executor or administrator having once submitted to the jurisdiction Is viewed by the Court as a trustee instead of the absolute owner which he is at law, and is assisted and protected accordingly. An executor indeed, though not strictly a trustee (since at law he can deal Avith the personal assets as absolute owner and can give receipts to purchasers without any necessity on their part to see to the application of the purchase-money) (5), is held to be ( J ) See notes to Elliot v. Merriman, 1 Bamardiston, 78 j 1 White & Tndor's Leading Cases. 90 ADMINISTEATION. a trustee of the residue when he has paid debts and assented to debts and legacies, even though there be no suit ; also he becomes a trustee in effect by filing a biU for administration ; and it need hardly be men- tioned that in a great majority of instances he is made trustee by the will. Having prefaced this much as to the reason of Courts of Equity undertaking the administration or adjustment of Common Law rights, let us first speak of the ADMINISTEATION OF DECEASED PERSONS' ESTATES, and see in what manner such Common Law rights are dealt with in suits for that purpose. It is obvious that such rights must be constantly under consideration in the course of winding-up estates. For instance, in Erskine v. Adeane (L. R., 8 Ch. 757), it became necessary for the Court of Chancery to determine whether a landlord was liable for letting his yew leaves be eaten by his tenants' cattle, and whether he was bound under certain covenants in a lease to keep down his hares and rabbits: both pecuHarly Common Law questions, and as to both of which the Court of Appeal in Chancery differed from the Court of Fir^ Instance. As a remarkable example of the care which the Court of Equity takes to " follow the Law," to adopt Common Law rules in dealing with assets where there is no special trust, I may refer k> Peek v. Gurney (L. R., 6 H. L. 377), where the Common Law maxim " actio personalis moritur cum persona" was adopted in a suit in Equity, The share- holders in Overend & Gurney wished to make Jie estate of Mr. Gibbs, who had been a director, AD3IINISTKATI0N. 91 liable for alleged misrepresentations; and it was held, that the principle of the above-mentioned rule applied, and they could not do so. Lord Chelmsford said : " This being a proceeding to recover damages for a wrong done, there can be no doubt that if an action at Law had been brought by the plaintiff instead of tliis proceeding in Equity, the executors could not have been made liable ; and in the exercise of a concurrent jurisdiction by Courts of Common Law and Equity, both Courts ought to proceed upon the same principles." One other decision I will refer to as showing how Equity binds itself to follow the Common Law in administering legal rights, viz., Earl Vane v. Bigden (L. E., 5 Ch. 670), where the Court had to consider the power of an executor or administrator to prefer one creditor to another (i. e. one of equal degree ; Williams on Executors, 964). ]Mr. Rigden, a trader, died, and left his widow, Jane Eigden, his executrix: her brother came to her and asked her to pay him his debt, which, in fact, would exhaust nearly all the assets. She agreed so to do, and gave him all the ledgers and books as a security, thus practically sweeping all the assets into her brother's pocket and depriving other creditors of any remedy. Thereupon Earl Vane, who was a creditor for 1,000/., filed a bill to ad- minister and to set aside the transaction, and Vice- Chancellor Malins held, that it was dishonest and could not stand ; but Lord Hatherley and Lord Justice James reversed this decree on appeal, and Lord Justice James, in giving judgment, said : "It 92 ADMINISTRATION. appears to me that there are some very simple propositions which dispose of the whole case. By the law of the land the legal personal representative is entitled to give preference to one creditor over another in equal degree, and it appears to me that that right of giving preference cannot be aflPected by the fact which seems to have weighed with the Vice-Chancellor : that the legal personal represen- tative is a woman and a widow, and the brother of the creditor, without due delicacy or without proper feeling, pressed his sister in her early widowhood to give him this preference. In a matter of relation between debtor and creditor, this Court has no right to require delicacy or proper feeling where the creditor is only exercising his legal right" (c). If, however, one creditor of the deceased com- mence an action or suit against the executor or administrator of which he has notice, he is re- strained from making a voluntary payment to any other creditor of equal degree. (WUliams on Execu- tors, 965.) Another Common Law priority which is recog- nized and admitted even in an administration in Equity, so far as legal assets (d) are concerned, is the priority which an executok or administrator can give to himself: his power of retainer. (As to which, see Williams on Executors, 971 ; Ferguson v. Gibson, L. R., 14 Eq. 379.) But these powers of preference and retainer do not apply to equitable (i. e. trust) assets, as has (c) See on thia point Williams on Executors, 966. Id) Ante, p. 11. ADMINISTRATION. 93 been already stated (e). In the case of trust assets, as in other cases of trust. Equity could apply its own rule without interfering with any Common Law doctrines, and accordingly it applied the maxim that "Equity delights in equality," and held that all creditors of every degree should receive payment rateably. See Williams on Executors, 1552 ; SUk V. Prime, 1 Brown's Chanc. Ca. 138 (/). Until the legislatiu-e decreed that the Common Law should follow Equity in this matter, by pass- ing 32 & 33 Vict. c. 46, and subsequently enacting in the Judicature Act (y), that "insolvent estates shoidd be administered as in bankruptcy " ihis, curious anomalous result occurred. If a man was insolvent, and an adjudication in bankruptcy was obtained, all creditors were paid rateably ; but if he died before adjudication could be obtained, specialty creditors would have priority, and might exhaust aU the as- sets ; but henceforth the rule of Equity will prevail universally. The inability of an executor to retain his own debt out of equitable assets was recently considered in Bain v. Sadler (L. E., 12 Eq. 570), where John Sadler, as executor, claimed to retain for his own debt 900Z. out of an estate of 4,000Z., which was partly the proceeds of realty devised in trust for sale. Vice-Chancellor Wickens held, that, though he might retain so much as he could of his debt out of the legal assets, i. e. assets which he took as («) Ante, p, 12. (/) 2 White & Tudor's Leading Cases. {g) 36 & 37 Vict. c. 66, s. 25, subs. (1). 94 ADMINISTRATION. executor, he had no right to be paid anything out of 2,000/., which was real estate left in trust for debts, and which must therefore be administered as trust assets, until all other creditors were paid up to an equality with the executor, "the trustee of an estate devised for sale had no right analogous to that of an executor who is a creditor, and the union of the characters of trustee for sale and executor in one and the same person could not give to the exe- cutor rights over the estate he took as trustee which in his character of trustee he would not have." But though debts are to be paid rateably, certain parts of the assets will be applied towards the pay- ment before others; and a few words may be said on the ORDER of assets. The rules for deciding which ftinds are first liable for debts are in them- selves simple ; they are these, that the personalty is taken before the realty, and property not given beneficially by the will before property which is so given. So that personalty and realty not bequeathed, or, in other words, descending to the executor or heir respectively, are the first two fimds, and per- sonalty bequeathed and realty devised, the last two ftinds resorted to, and the simplest order is, 1. Personalty descending to the executor (and a residuary bequest of the personalty of course makes no difierence ; so much as is wanted for debts descends to the executor). 2. Realty descending to the heir. 3. General bequests of personalty (?. e. general or pecuniary lega'cies). 4. Devises of realty {and specific legacies). ADMINISTRATION. 95 As to classes 3 and 4 it must be noted that specific legacies are taken out of the class of general bequests of personalty and lifted up into the same class with specific devises, and also that a residuary devise of realty is still held to be specific, for the purpose we are now considering. (Gibbins v. Eyden, L. R,, 7 Eq. 371, following on this point Hensman v. Fryer, L. R., 3 Ch. 420 {h).) The decision in Lancefield V. Iggulden (L. E., 17 Eq. 556) does not seem con- sistent mth this settlement of the law. When, however, we look into the books for an accoimt of the order of administration of assets, we find more than four classes distinguished (Smith's Manual, 272) {{), which is to be accounted for in the following manner, A testator can vary the regular order of assets by his will ; thus, he may devise the whole or part of his real estate for payment of debts, in which case such real estate is resorted to next to the general personalty ; or he may, in making specific gifts, say, that what he gives to A. shall be liable for debts before that which he gives to others. Then the order will be as follows : — 1. General personalty. 2. Eealty devised for debts. (A) Some confusion will be found in the text-books (see Smith's Manual, 273) as to the effect of Hensman v. Fryer. There were two points decided in it — 1, that a residuary devise remains specific, and this has been followed, as stated above in the text ; 2, that a general legacy and a residuary devise of realty must contribute pro rata, and on this second point only the case has not been followed. (Dngdale v. Dugdale, L. R., 14 Eq. 234.) (i) See also notes to Silk v. Prime, 2 White & Tudor's Leading Cases. 96 ADMINISTRATION. 3. Eealty descending. 4. Specific gifts, real or personal, charged witt debts. 5. General or pecuniary legacies. 6. Specific devises of realty (residuary devises being considered specific), and specific legacies, 7. Personalty and realty appointed under a general power. (Williams on Executors, 1562, note (. Earl of Somerset (1 Strange, 447) (p), it was laid down that the true ground of relief against penalties is from the intention of the parties, where the penalty was designed only to secure money, and the Court can give by way of recompense all that was expected or desired. A MORTGAGE is a well-known example of the doc- trine now under discussion, for when the mortgaged estate was by the terms of the deed forfeited for non- payment of the money lent. Equity, holding that this was not the intention of the parties, considered the mortgagee a trustee and allowed the mortgagor to redeem. The 25th section of the Judicature Act, subs. (5), allows a mortgagor in most cases to sue as owner for possession of the land or the recovery of rent. So also the ordinary Courts of Law have for a long time recognized by virtue of several statutes other doctrines relating to the remission of penalties AND forfeitures, which would otherwise have been exceptions to the rule that " Equity follows the Law." The statute 23 & 24 Vict. c. 126, granting to lessees relief, upon certain conditions, against for- feiture for nonpayment of rent and default in in- sm-ing, is well known; and some recent cases at Common Law have brought prominently forward the statutes of 8 & 9 Will. III. c. 11 and 4 & 5 Anne, c. 3 (§'), which provide that a bond with a penalty {p) 2 White & Tudor's Leading Cases. (j) Chap. 16 in the common printed editions. SPECIFIC PERFOEMANCE OF C0NTEACT8. 131 shall be held satisfied, and the penalty remitted on pajinent of damages and costs. Betts V. Burch (4 H. & K 506; 28 L. J., Exch. 267), is one of the cases to which I refer; Baron Bramwell, in giving judgment in an action for the recovery of a penalty, said : — " The question is whether the statute, 8 & 9 "Will. III. c. 11, has not made an alteration. " That statute, in effect, makes the bond a security only for the damages really sustained. That seems to me the fundamental principle which we ought to state in all those cases. In order to make the argu- ment intelligible, it is necessary to see how the mat- ter originated. This was a debt at Law, and is still a debt at Law; then Courts of Equity thought they could do substantial justice in respect of the bargains persons had made, by instead of allowing them to be recovered upon, awarding what they thought was the true amount of damages. The result of that was, that no action could be brought for a penalty without the action being restrained. That induced the legislature to interfere, by the 8 & 9 Will. III. c. 11, s. 8, and to provide that, in those cases, no more shall be recoverable at Law than would be allowed to be recovered in Equity. That was the origin of that statute. I quite agree with my Brother Martin in. thinking the best possible thing would be to let people make agreements and keep to them, according to their words, till they are tired of it. But you will find out that this little piece of paternal legislation has introduced a great deal of mischief, because,, owing to this legislation, persons have got into the 132 SPECIFIC PERpOEMANCE OP CONTEACTS. loose habit of putting down large sums as penalties which they never contemplated paying." These remarks were referred to with approval in Hinton v. Sparkes, L. E., 3 C. P. 161, and Lea v. Whitaker, L. R., 8 C. P. 70, 377. In the latter case, where the defendant had agreed to sell public- house fixtures to the plaintiiF on certain terms; and it was provided that, by way of making the agree- ment binding, the defendant and the plaintiff should each deposit 40Z., which was to be forfeited as and for liquidated damages by the party failing to complete his agreement. The defendant did eventually refiise to seU, and the plaintiff claimed to recover, not merely the deposited 40Z. but the real damage he had incurred for loss of bargain ; and the Court held, that the intention of the parties was to assess their own damages, and that the plaintiff should recover the 40?. and no more. On the other hand, in the recent case of Magee v. Lavell (L. E.., 9 C. P. 107), also a case of a contract to sell the goodwill of a public-house, and the party failing to perform his agreement was to pay to the other party " the sum of lOOZ. as damages," it was held, that the sum mentioned must be considered as a penalty and not liquidated damages, and that only 30Z., the real damage sustained, could be recovered. As Lord Coleridge said, " The Courts refuse to hold themselves bound by the mere use of the words ' liquidated damages,' and will look to what must be considered, in reason, to have been intended by the ■parties in relation to the subject-matter." ( 133 ) CHAPTER VII. EESCISSION ASI> EECTIFICATION FOE MISTAKE. No part of the jurisdiction of Coiirts of Equity requires to be more carefully stated and understood than that relating to the rescission and rectification of contracts for mistake. There is an ambiguity in the phrase itself, which must at once be pointed out and explained. Equity does not rescind or rectify a contract for mistake (a), but it rescinds an in- strument WHICH STATES A CONTEACT WHICH DOES NOT EXIST IN FACT, OR RECTIFIES AN INSTRUMENT WHICH mSSTATES A CONTEACT WHICH DOES EXIST IN FACT. This explanation (which I shaU now endeavour in this Chapter to prove and illustrate) accords with the theory that Equity is no corrector of the Com- mon Law, but that its interference is generally founded on some circumstance which obstructs relief at Common Law. The jurisdiction over mistakes which we are about to consider is exercised in cases where a defendant would be able to plead truly to an action of contract at Common Law, that the alleged contract sued upon was never agreed to by him, but in answer to his plea of non assumpsit the instrument would be produced, and would at any (a) See ante, p. 8, note (A), and p. 144, post. 134 EEScissroN and eectification rate obstruct the defence; therefore the Court of Equity, which, as we have abeady seen, permits a parol variation of a written contract to be set up by way of defence {b), will by way of precaution assist a person who fears the future embarrassment of a righteous defence, and order the instrument proved to be founded upon mistake to be rescinded or rectified. Thus, it will be seen that the jurisdiction we are about to consider is not in contradiction to, but in aid of. Common Law rights. In this, as in other cases, Courts of Equity have a procedure better adapted than that of the ordinary Courts for giving effect to those rights; they act by way oi prevention of wrong, while other Courts do not act till the wrong is done, when it may be too late to give any effectual remedy. As Lord Eedesdale (quoted by Sir G. Giffard in a case of "Wooldridge v. Norris, L. E., 6 Eq. 410), says, " A Court of Equity will prevent injury in some cases by interposing before any actual injury has been suffered, by a biU which has been sometimes called a biU quia timet.'''' I proceed to deal separately with the doctrines of rescission and rectification for mistake. 1. Rescission: Equity wiH rescind an instru- ment which states a contract which does not exist in fact. It is a valid defence even at Common Law, to an action brought upon a TVTitten instrument, to show that by reason of some misunderstanding, or fraud or misrepresentation, there was no valid assent; and (5) Ante, p. 125. FOR MISTAKE. 135 this valid defence Equity will aid, and if it is proved that the real consent between the parties differed from the instrument or writing ; so that to pei-form the agreement in accordance with the writing would be a fraud, the Court will decree rescission of the instrument, so as to prevent ftiture actions on it. The mistake, therefore, which a plaintiff who seeks to rescind an instrument must prove, is a mistake in the instrument itself. The gist of his case must be, that the agreement set forth in the writing was never assented to. The ground, therefore, of all the decisions for rescission or cancellation of instruments will be found to be want of assent, as will appear by the following cases : — In Harris v. Pepperell (L. E., 5 Eq. 1), there was an agreement for the sale of certain land, but a slip of land was inserted in the parcels of the conveyance, whicb the vendor showed he did not agree to sell, for he could make no title to it: therefore, after execution of the conveyance he filed a bill for rescission, on the ground that he had never assented to the alleged agreement. The purchaser, however, said there was no mistake on his part ; he agreed to buy tbe whole ; but the Master of the Eolls (being satisfied by evidence that the only obligation to which the seller had assented was to convey the land scheduled to the deed minus the plot in question), decreed in effect that the obligation should not be interfered with by the erroneous deed, and that the indenture which stood in the way of the real agree- ment or obligation should be rescinded. 136 KESCISSION AND RECTIFICATION He gave the purchaser the option to have the contract which the plaintiff had agreed to performed, i. e., to have the real obligation of the vendor carried into eflfect, but he could not force rectification unless both agreed to it (c). All he could do vras to rescind the agreement, which did not represent the real obligation. Another case of rescission on the ground of actual non-assent was Re Victoria Permanent Building Society (L. R., 9 Eq. 597), where Mr. Empson, being an officer of the society, agreed to buy land of the company on the condition that they were to take a mortgage for the purchase-money. The solicitor of the company drew deeds, which Mr. Empson signed without perusing them, the effect of which was to make him a member of the company for several shares, and on a winding up he was put on the list of contributories. He filed a bill to have the deed -rescinded as representing an agreement which he had never entered into, and Sir R. Malins, V.-C, ia .giving judgment in favour of the plaintiff, said, " It is very true, that if a man wiE have the folly to execute deeds which he has not looked at, he must suffer the consequences." " But Mr. Empson says, ' The deed does not re- present the transaction at all. I had confidence in those who prepared it. I was asked to sign that deed by the trustees.' . . . Now, the recital in that deed is obviously incorrect, and I am quite satisfied that it does not represent the real transaction, and (o) Seo^os*. FOE MISTAKE. 137 that Mr. Empson never did intend to become a member of the society." This then was rescission of an instrument as alleging a contract which was not assented to. Again, in Wycombe Railway v. Donnington Hospital (L. R., 1 Ch. 268), the hospital corporation agreed to sell land and the railway to buy it, but the vendors swore that they assented to the sale only on the condition that a rent-charge existing on the land was borne by the company ; therefore, when the rail- way prayed for specific performance by a conveyance free from incumbrances. Lord Eomilly, M. R., in the first instance, and the Lords Justices on appeal, held that the contract loas never a complete and final con- tract, and dismissed the bill ; this, though a case not of rescission but of defence to a biU for specific per- formance, depended on the same principles, and is an important illustration of the proposition that a de- fence on the ground of mistake must be a mistake in the instrument, and not a mistake as to the effect of it. Again, it is clear that a person who enters into an agreement founded upon a state of circumstances altogether imaginary, misapprehended by all parties, cannot be said to have assented to anything — ^in such a case, the contract is said to be void on the ground of mutual mistake ; but to avoid confusion, it seems better to keep prominently forward the general idea that here, as in other cases of rescission, there is no contract, because no assent, and, therefore, the mistake is that the writing does not represent the agreement. If, for example, a man agrees to sell an estate which at the time is actually swept away by a flood. 138 RESCISSION AND RECTIFICATION that would be an agreement whicli was in reality no agreement, because the subject-matter had no exist- ence, and the written agreement would not be allowed to stand, because it did not correctly represent the real agreement between the parties, the real obliga- tion, which was to sell an estate, and there was no, estate. Cooper V. Phibbs (L. E., 2 H. L. 168), was an in- stance of such mutual mistake. There a Mr. Cooper was under a settlement tenant for life of large Irish estates, including a salmon fishery, and at his death, as he had no male heirs, the property went to his nephew. Mr. Cooper had found the salmon fishery was unprofitable, because there were rocks in the way at a spot where the salmon tried to get up the river, so that they were unable to ascend the falls from the shallowness of the water preventing them making their spring, and they returned into the ocean with- out spawning. So Mr. Cooper got a Private Act of Parliament, which gave him power to remove these obstructions and make a private way for the salmon to go up, and the Act, not taking notice that Mr. Cooper was tenant for life only, limited the fishery to him in fee. When the nephew came into the estates, he obtained a lease of the fishery fi:om Mr. Cooper's heirs ; in so doing, he was renting what in law belonged to himself. And on finding it out he petitioned to have the lease set aside, and delivered up to be cancelled as made under a mis- take of fact. It was answered, that if there was any mistake it was a mistake as to his legal position under the FOR MISTAKE. 139 settlement and the act of parliament taken together, and a mistake in law could give no ground for relief. But Lord Westbury said, that in the maxim " Igno- rantia juris hand excusat," Jus means the general law of the land, and not a private right. Private ownership is a matter of fact not .within the maxim. The parties had contracted under a mutual mistake and misapprehension as to their rights ; and so the agreement was not in fact any real obligation, there- fore the lease was a mistake, and must be set aside. Another example of non-assent is where outward assent is no assent in law, no assensus animi, on account of some incapacity, physical or mental, of the assenting party. Thus, in Torrance v. Bolton (L. E., 8 Ch. 118), property was put up for sale by auction, the par- ticulars saying nothing about incumbrances. In the auction room the auctioneer read a long state- ment about the existence of three mortgages on the property. The plaintiff, who was seventy-three and very deaf, and did not hear the auctioneer's state- ment, began to bid, and continued his biddings till he was declared the purchaser of the property for 2,500/.; he signed the contract, and paid 250/. earnest money; but when he found out about the mortgages he filed his bill for rescission of his con- tract, and the Lords Justices held that the descrip- tion of the property in the particulars had misled the plaintiff, so that his assent was void — his obliga- tion, in fact, was to buy the property as the par- ticulars described it, firee from mortgages ; the signed contract was a mistake. 140 RESCISSION AND EECTIFICATION In giving judgment in this case, Lord Justice James said : — " It was very strongly impressed upon us that Lord St. Leonards had said in his book (d) that contracts for sale, although they might not be enforced in this Court, could only be set aside on the ground of fraud. The word 'fraud' there is no- men generalissimum, and it must not be construed so as to mislead persons into the notion that con- tracts for the sale and purchase of lands are in any respect privileged, so as to be free from the ordinary jurisdiction of the Court to deal with them as it deals with any other instrument or any other trans- actions, in which the Court is of opinion that it is imconscientious for a person to avail himself of the legal advantage which he has obtained. Indeed, the books are ftiU of cases in which the Court has dealt with contracts of that kind — contracts obtained by persons from others over whom they have dominion — contracts obtained by persons in a fiduciary position — contracts for the sale of shares obtained by directors through misrepresentation con- tained in the prospectus, in respect of which it was never necessary to allege or prove that the directors were wilftilly guilty of moral fraud in what they had done. A contract for sale, like every other con- tract, is subject to the ordinary rules and juris- diction of the Court ; and that passage of Lord St. Leonards must be understood as meaning that the same kind of case must be made when a party comes here to set aside a contract for sale as must be made (d) Vendors and Purchasers, 14th edition, 244. FOR MISTAKE. 141 in setting aside any other contract or dealing be- tween the parties." This case, therefore, shows that undue advantap-e taken by one party over another will induce the Court to hold that the assent of the latter party is no assent for the purpose of binding him. There is yet another kind of non-assent, namely, where a person, though not incapacitated by deaf- ness or other disadvantage, physical or mental, has been actually deceived ; for assent, induced by deceit, is no assent in law. A leading case on this point is Small V. Attwood (6 CI. & Fin. 232), a case which, as Lord Brougham said, by its prolixity and weight of materials and mass of evidence exhausted, if it did not confound, the judges who had to decide it. It was a bill to rescind for fraud an agreement to buy a property with valuable mines. There was a hearing of twenty-one days, followed by a year's deliberation, after which Lord Lyndhurst decided there was sufficient fraud to vitiate the assent. Then the House of Lords heard the case on appeal for sixteen days in 1837 and for thirty days in 1839, and eventually Lord Cottenham and two other lords (including Lord Brougham) reversed the decision of Lord Lyndhurst, while he adhered to his decision. The printed papers amounted to 2,600 folio pages, and the notes of arguments in the House of Lords to 10,000 brief papers. Lord Brougham observed, that if it had had to be again re-argued, from the illness of the lords who heard it, it was (see p. of Keport, 477 — 8) difficult for the imagination to scan the bounds which would have been the limits of this 142 RESCISSION AND KECTIFICATION extraordinary cause. The result was a very im- portant statement of the law, commented on by Lord St. Leonards in his Treatise on Vendors and Pur- chasers. His remarks on this case are those alluded to by Lord Justice James, in his judgment in Tor- rance V. Bolton above quoted (p. 140). Having thus given examples of cases where Equity rescinds an instrument which iy mistake sets forth as a contract that which was never assented to, it re- mains to show that Courts of Equity like Common Law refuse to rescind contracts, because the parties made a mistake when they assented to them. Thus, a party to a contract cannot have it re- scinded, on the ground that though it represents his agreement, he made a mistake, not understanding the effect of what he assented to, or not knowing the law : for instance, in Powell v. Smith (L. R., 14 Eq. 85), a landowner, by his agent, agreed to let a farm "for seven or fourteen years," and thought that he re- served himself an option to determine the lease in seven years ; but the legal construction of his agree- ment was to create a lease which was determinable at the option of the tenant only, and not at the option of the landlord. Lord RomUly, M. R., held that was no ground for rescinding the agreement, for the docu- ment correctly represented what the parties had as- sented to : there was no mistake in the writing. Neither can a party to a contract have it rescinded because he assented to it through carelessness, for a Court of Equity respects the solemnity of a contract once really assented to as much as Courts of Common Law. FOR MISTAKE. 143 Thus, in Mackenzie v. Coulson (L. R., 8 Eq. 368), Mackenzie & Co. had insured some hoops which Coulson & Co., iron merchants, sent by sea from Gloucester to Plymouth. In the course of the voyage, many of the hoops were damaged by sea water, and Messrs. Coulson claimed 150Z. on the policy ; but Mackenzie & Co. filed this bill to stay the action, on the ground that the policy was a mis- take and misrepresented the real contract, which was, as they contended, to insure f. p. a. (free oi particular average), i.e., free from recovery for partial loss, and they referred to a slip or paper signed preliminary to the insurance on which the letters f. p. a. appeared, but which were not in the insurance policy. ' Sir W. James, V.-C, held that the policy repre- sented the contract ; that the slip, if he could look at it at aU as evidence, was no evidence of a concluded agreement, anything binding by way of trust, obliga- tion or anything else. He said, " In this case, a bill has been filed which possesses the merits of novelty, and, certainly, of some degree of courage. It seeks what is called the ' rectification' of a policy of in- surance, by making it conformable to a thing called a ' slip,' which was a piece of paper on which some- thing was written, pending a negotiation for the effecting of a policy of insurance. " But if this contract be a good contract at Law, what is there to vary it in Equity ? If all that the plaintiffs can say is, ' We have been careless, whereas the defendants have not been careless,' it is useless for them to apply to this Court for relief. The de- 144 RESCISSION AND EECTIFICATION fendants positively say they would not have accepted the policy on any other terms. " Indeed, the whole theory of the bill is founded on a misapprehension. Courts of Equity do not rectify (nor rescind) contracts; they may and do rectify (and rescind) instruments purporting to have been made in pursuance of the terms of contracts." It is necessary here to add a caution, that any person wishing to have an instrument rescinded must come promptly. If a person "sleeps upon" his rights, or for a long time acquiesces in the asser- tion of adverse rights, the Court will often refuse to interfere on his behalf, especially if by his laches he has rendered it impossible to restore aU parties to their original status : this is the meaning of the maxim " Vigilantibus nondormientibus ^quitas subvenit" (/). It is important then to remember that if a plaintiff wishes to rescind an instrmnent stating a contract against any person who avers, and in the opinion of the Court truly avers that he assented to the instru- ment as it stands and wishes it to stand, the plain- tiff must not have altered such person's position by his laches, otherwise his suit wiU be dismissed, unless such conditions can be attached to the decree as will restore the parties to their rights. See Bloomer v. Spittle, L. E., 13 Eq. 427. Skilbeck v. Hilton (L. R., 2 Eq. 587), was an ex- ample of this, where the plaintiff had signed a part- (/) Smith's Manual, p. 19. FOE MISTAKE. 145 nership release, tiunking that the books remained as they were when his accountant had last looked at them, whereas his partner had secretly taken out 5751. in the meanwhile. Lord RomiUy, M. E.., said, " that he might have destroyed the arrangement as not representing the statement of account he had agreed to, but by his own acts he had precluded himself from obtaining such relief: he had proceeded to realize the partnership assets, and the parties could not be restored to the position in which they stood when the deed was executed. If he wished to insist on not being bound by the transaction, he should have left the matter exactly where it was and then the concern would have been wound up by the Court." And the bill was dismissed without costs. It should also be remembered, that if an instrximent which is assignable in Equity only is able to be rescinded as between the original parties to it, it can also be rescinded as against assignees, or subse- quent holders, for equitable assignees take subject to equities (g^. Thus, in Graham v. Johnson ( L. R., 8 Eq. 36), Johnson was a barrister, who having done services for Graham, an officer, persuaded him to sign a bond for the payment of certain moneys in token of those services. Graham afterwards said he was unduly influenced, and did not reaUy understand what he was doing, and claimed to rescind the bond ; but in the meanwhile Johnson had assigned the bond for the valuable consideration of 10,000 rupees to B., (y) See p. 63, ante. C. H 146 RESCISSION AND RECTIFICATION telling B. that the bond was given for value to him. B. knew nothing of any deception, if any there was ; but it was held, nevertheless, that the plaintiff was entitled to have the bond cancelled on the grouad of undue influence Qi) ; and though B. was a bond Jide assignee of the bond, and had given valuable con- sideration for it, yet the assignee of a bond takes it, subject to all the equities subsisting between the obligor and the obligee, and B. therefore could not be allowed to enforce the bond against Graham. 2. The other subject to be considered ia this Chapter is Rectification. The rule is (p. 133, ante), that the Court will rectify an instrument which misstates a contract which has a real existence. In order, therefore, to succeed, in rectifying an instrument, a plaintiff must prove not only that by mistake the written agreement does not represent the real agreement, but he must also prove, or have it admitted, that he and the other parties duly assented to another agreement. Thus, in Harris v. PeppereU (ante). Lord BomiUy, M. B., offered to rectify the instrument which the defendant proved to contain more than he had really agreed to, if the plaintiff would submit to accept the more restricted agreement, but as he refused to do so, the Court would not decree rectification. The rectification of written agreements is clearly an in- fringement of the Common Law rule that parol testimony cannot be admitted to contradict, vary, add to, or subtract from the terms of a valid written (Ji) Ante, p. 52. FOR MISTAKE. 147 instrument {€), and in some cases of the Statute of Frauds also. But if it must be confessed that a doctrine of Equity is for once discovered to be in actual opposi- tion to a doctrine of Common Law, yet upon close inspection I think we shaU find that the exception is rather apparent than real, for rectification will only be granted (so far as I can find) by consent or submission of all parties. Thus, Druiff u. Lord Parker (L. E., 5 Eq. 131), was a case where the mistake was obvious, and there was no defence to the rectification of the deed, the only contention of the defendant being that relief might have been had at Common Law. William Druifij a pawnbroker, had lent Lord Parker, a young officer in the Life Guards, money on a biU drawn by Lord Parker on Frederick Granville, a brother officer. The form of the bill was — "Pay to my order 500/. three months after date, value received." Frederick GranviUe accepted the biU, and was, of course, first liable on it, and if he did not pay, Mr. Druiff could go against Lord Parker, who had drawn it. But Mr. Druifi" died, and his widow and daughter carried on the business, and then this remarkable mistake occurred. It was agreed that the bill should be renewed. Druiflf's daughter drew out a new bill, but by a blunder she put her mother's name where the drawer's signature should be (Lord Parker's name being below it), so that when all was done, and the loan renewed, there (i) Taylor on Evidence, p. 981. h2 148 KESCISSION AlfD EECTIFICATION was a formal bill of exchange, stating, on the face of it, that Mrs. Druiff was the person who had been borrowing money, and who was liable on the bill if Frederick GranviUe did not pay. Frederick Gran- ville did not pay, but went abroad, and Mrs. Druiff sued at law Lord Parker upon the bill. The suit ia Equity was to rectify the bill and restrain the action : the question argued was not whether Mrs. Druiff's name was rightly inserted where it was ; all parties admitted the mistake, patent as it was on the face of the instrument, and the only contention was, that the mistake was so glaring that even Common Law would have given relief. But Lord Hatherley, then Vice-Chancellor, said, " It is to be observed that all the Common Law cases cited were cases of a defendant defending himself {k). No single instance has been produced in which a plaintiff, bringing forward a document on which he founds his right, has been allowed, to say that the instrument which he himself pro- duces to the Court does not express the real agree- ment into which he has entered. But the case stands higher for the plaintiff than I have put it. There is a jurisdiction in this Court to correct mistakes in instruments. The plaintiff alleges that she has a right to have her agreement performed in the manner in which it was entered into, namely, that she was to have an exactiy similar biU to the one she had before. Instead of that, she has a biU with Her own name inserted by mistake above that (Ji) Compare the rule in Equity, p. 125, ante. FOE MISTAKE. 149 of the drawer. She claims a right not to be em- barrassed by this mistake. The former bills had not the name of DruiflF upon them at all. She therefore wants to have the instrument rectified in that respect. She claims to have an instrument which shall be free from aU doubt and embarrass- ment. It appears to me that if no action had been brought upon this biU of exchange, and if the bill had been filed simply for rectification of the instru- ment, so as to render it such an instrument as the parties agreed should be given by one to the other, the plaintifi" would have been entitled to have it rectified by striking out the name 'A. Druiff,' and putting it ia the position in which it was intended to be, namely, a mere renewed bill of exchange." This, then, was a case where not only was there no defence on the merits, but there was a previous bill of exchange which the Court could use as written evidence of what the new one should be ; and so, the cases where settlements are rectified are generally cases where written instructions to the solicitor, or a rough draft of the agreement or articles are pro- duced, and all that the Court is asked to .do is, by consent of all parties, to rescind the instrument which does not carry out those instructions, and draw a new deed iu accordance therewith. As has been said, " If the defendant denies the case as set up by the plaintiff, and the latter simply relies on the verbal testimony of witnesses and has no documentary evidence to adduce, the plaintiff^s position will be well-nigh desperate, though even here, as it seems, the parol evidence may be so con- IS'O RESCISSION AND RECTIFICATION elusive in its charaeter as to justify the Court in granting the rehef prayed " (Z). In White v. White (L. K., 15 Eq. 247), it was proved by the affidavits of the plaintiffs and of the solicitor employed in the preparation of the deed, who explained how the mistake arose that there had been an agreement to convey certain cement works, and that by mistake of the solicitor the deed con- veyed only a moiety. All parties who were sui juris consented to the decree. V.-C. Bacon made a decree for rectification and held, that the order being endorsed on the deed, would pass the legal estate without a new conveyance. In De la Touche's Settlement (L. R., 10 Eq. 599), an order was made for payment out to the child of a marriage, though excluded by the settlement as it stood, on clear proof that the intention of all parties to the deed was that he should be entitled, and on an admission by the solicitor that the mistake was his. The head note of the repoi-t says the fact of mistake was not admitted by all parties; but it appears that aU parties sui juris admitted the mistake, and Sir W, M. James, V.-C, said that inspection of the deed itself was sufficient to lead to a presumption of the mistake. There are, indeed, some cases where the Court rectifies or reforms an instrument because it pre- sumes a mistake fi-om the nature of the transaction. (A.) Thus, a partnership debt evidenced by an (Z) Taylor on Evidence, p. 988. FOE MISTAKE. 151 instrument, which at Common Law would create only a JOINT LIABILITY, wiU be reformed in Equity, so as to make the obligation joint and seveeal. Sumner V. Powell (2 Mer. 36) is the leading case on the point, which is fuUy discussed in Williams on Exe- cutors and Lindley on Partnership (w). (B.) So, again, where a husband and wife have MOETGAGED THE WIFE'S LAND TO SECUEE THE HUS- BAND'S DEBT, though the mortgage deed limits the equity of redemption to the husband, it is settled that, the presumption being that the mortgage was not in- tended to alter the respective rights of the husband and wife, when the mortgage is paid off, the deed will be so rectified, as to make the husband, on redeeming the land, hold it jure mariti as before, and not for his own absolute benefit. See Hunting- don V. Huntingdon, 2 Brown, Pari. Cas. 1 (w). (C.) A third example is where the Court wiU, on the ground of mistake, supply the defect in the execution of a power, but only in favour of a pur- chaser, a creditor, a wife, or a legitimate child. See ToUet V. Toilet (2 Peere Williams, 489) (o), and the recent cases of Garth v. Townsend (L. R., 7 Eq. 220), Ee Dyke's Estate {ibid.) (p). These examples, however, are not cases where (to) The pages will be found by turning to Sumner v. Powell in the Table of Cases in the above-mentioned works. (m) 2 White & Tndor's Leading Cases. (o) 1 White & Tudor's Leading Cases. {p) See for these three instances of rectification on the ground of presumptions, Kerr on Fraud and Mistake, pp. 354, 356, 370. 152 RESCISSION AND RECTIFICATION FOR MISTAKE. instruments are rectified upon parol evidence, but should rather be considered as coming within that class of cases which was considered in the Chapter upon Trusts (§'), where Equity imports and engrafts an implied trust upon an interest which is in terms beneficial. (?) Pages 25—30, ante. ( 153 ) CHAPTER VIII. INJUNCTIONS AND EECEIVEES. The jurisdiction of Courts of Equity to grant in- junctions and appoint receivers, the one for the pre- vention of wrong, the other for the preservation of property, was exercised by them because it was a great hardship in many cases that a plaintiff should be left to the uncertain reparation of damages at Common Law, which the personal estate of a defen- dant might, perhaps, not be able to satisfy. It was for this reason, as we have seen, that Courts of Equity, where there was a sufficient consideration, compelled specific performance of contracts, not in contradiction to but in aid of the Common Law ; and for the same reason they provided relief, by way of injunction, in respect of aU kinds of rights, in- cluding Common Law rights, if the remedy at Com- mon Law is insufficient. The Common Law Courts might, indeed, boast, as Horace did of Roman justice, — " Raro antecedentem acelestum Deseniit pede poena claudo," i. e., " the offender may have the start, but justice follows with no halting foot;" but it was this start, this " antecedentem scelestum" which Equity was reluctant to allow, and therefore, to use another h5 154 INJUNCTIONS AND KECEIVERS. Horatian metaphor, by granting an injunction it suspended its process like a sword over the head of the intending -wrongdoer, as Dionysius did over Damocles. And if he broke the injunction he snapped the thread by which the sword was hung, and underwent all the results of contempt of Court, including committal to prison. This power of committal to prison, then, is the essence of procedure by injunction. And the aboli- tion of imprisonment in most cases by the Debtors Act, 1869 (32 & 33 Vict. c. 62), has not interfered with this power of committal for contempt, as is shown by Harvey v. HaU(L. E., 11 Eq. 31), where a partner having submitted to an injunction restrain- ing him from dealing with the partnership moneys, and assets, and bills of exchange, committed a breach of the order and was promptly committed ; though the act above cited was relied on as exempting him from imprisonment for making default in payment of a sum of money. It is sometimes asked how this process of contempt by way of attaching and imprisoning the person is consistent with Magna Charta, 25 Edw. 1 (a), which provides, that " No freeman shall be taken or imprisoned, or be disseised of his freehold, or liber- ties, or free customs, or be outlawed, or exiled, or any otherwise destroyed ; nor will we pass upon him, nor send upon him, but by lawful judgment of his peers, or by the law of the land (' Nisi per legale judicium parium suorum vel per legem terrae')." (a) 9 Hen. 8, in the ordinary printed editions. INJUNCTIOXS AND EECEIVEES. 155 Mr. Hallam (J) tells us that the alternative clause has been by some referred to thejorocess of attachment for contempt, but, he himself doubts whether that was in contemplation of the framers of the statute. However that may be, the power of punishing by process of contempt those who, being bound to obey, nevertheless disobey the process, orders, or decrees of a Court, is inherent to the Court by the Common Laxo of the land for the support of its authority and dignity, and does not depend upon any statute, although various statutes recognize such jurisdic- tion. In Miller v. Knox, before the House of Lords (4 Bing. N. C. 574), Justice Patteson said (p. 596): " It seems to be understood that at aU times the Court had power to punish disobedience to its pro- cess, orders, and decrees, by process of contempt ; and there is nothing in any statute which can in any way be construed to give any such power, though he thought the Statute of Westminster pro- bably recognized it." And Justice Williams says (p. 587) : " That the Superior Courts of Record, especially, have been in the habit of issuing such process, is past a doubt. The issuing of attach- ments by the Supreme Courts of Westminster Hall for contempts out of Court (as is observed by Lord Chief Justice Wilmot in his prepared but not deli- vered judgment in the case of Hex v. Almon), stands upon the same immemorial usage as supports the whole fabric of the Common Law. It is as (i) Middle Ages, oh. viii., pt. ii. 156 INJUNCTIONS AND EECEIVERS. much the lex terrcs, and within the exception of Magna Charta, as the issuing of any other legal process whatsoever." By the Common Law Procedure Act, 1854, it was enacted, that in all cases of injury, where the party injured was entitled to maintain and had brought an action, he might claim a writ of injunc- tion against the repetition or continuance of such in- jury, or injury of a like kind relating to the same right (17 & 18 Vict. c. 125, s. 79), and such injunc- tion might be obtained ex parte (sect. 82). It is now enacted by the new Judicature Act, 36 & 37 Vict. c. 66, s. 25 (subs. 8), with respect to all the divisions of the High Court of Justice, that " a MANDAMUS or an INJUNCTION may be granted, or a RECEIVER appointed by an interlocutory order of the Court, in all cases in which it shall appear to the Court to he just or convenient that such order should be made ; and any such order may be made either unconditionally, or upon such terms and conditions as the Court shall think just; and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass such injunction may be granted, if the Court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title or other- wise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title; and whether the estates claimed by both or by either of the parties are legal or equit- able:' INJUNCTIONS AND EECEIVEES. 157 This seems the proper place to consider more particularly the nature of the jurisdiction in per- sonam, formerly peculiar to the Court of Chancery, but now given by the above enactment to every branch of the High Court of Justice, hy which the Court can bind the person of him who threatens and intends a wrong, and anticipate and prevent the in- jury, though intended to be committed outside its own jurisdiction. We saw, when we were considering the jurisdic- tion over trustees, and especially over fraudulent trustees (p. 48, ante), that the Court does not under this jurisdiction interfere with statutory rights, but fastens on the individual who has those rights, and prevents him from using them for a fraudulent pur- pose; and similarly in granting injunctions as to matters outside its own jurisdiction, the Court never pretended to interfere with the privileges of other jurisdictions, but wiU prevent individuals from put- ting those jurisdictions in motion. (See Earl of Ox- ford's Case, 1 Ch. Eep. 1) (c). There may stiU be occasions for the application of the doctrine which was first laid down ia Penn v. Lord Baltimore (1 Ves. sen. 444) (c), (where a de- cree was made as to boundaries of two provinces in America) that an English Court of Equity (and all branches of the High Court are henceforth Courts of Equity), as it acts primarily in personam, and not merely in rem, may, where a person against whom relief is sought is within the jurisdiction, make a (c) 2 White & Tudor's Leading Cases. 158 INJUNCTIONS AND EECEIYERSi decree, upon the ground of a contract, or any equity between the parties respecting property situated out of the jurisdiction. The English Court will not, however, interfere with the contracts of a foreign government (rf), be- cause some of the contractiag parties are within the jurisdiction. See Smith v. Weguelin (L. K., 8 Eq. 198); where Duke of Brunswick v. King of Hanover ( 2 H. L. C. 1 ) ; Gladstone v. Musurus Bey ( 1 H. & M, 495); and United States u. Prioleau (2 H. & M. 559), were considered; nor will an English Court interfere to prevent an English subject getting an advantage by the laws of another country, which it would be unconscientious for him to have by the laws of England. Liverpool Marine Credit Co. v. Hun- ter, L. E., 3 Ch. 479. It has been said, that a person can be resteained FROM applying TO PARLIAMENT for a private act which would unrighteously affect his contracts or liabilities towards another person ; but Lord Cotten- ham said, in Heathcote v. N. Staffordshire Rail. Co. (2 Macn. & Gord. 100, 110), that it is hard to conceive what would be a proper case for such inter- ference, seeing that every act of parliament pro- vides, or intends to provide, compensation to the party injuriously affected. See the judgment of Lord Chelmsford in Steele v. Metropolitan Railway (L. E.., 2 Ch. 237), to the same effect. The new Judicature Act, 36 & 37 Vict. c. 66, s. 24, enacts that — No cause or proceeding at any time pending in (i) 2 White & Tudor's Leading Cases. INJUXCTIOXS AND EECEIVEES. 159 the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or in- junction; but every matter of Equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained, if this act had not passed, either unconditiopaUy or on any terms or conditions, may be relied on by way of defence thereto : provided always, that nothing in this act contained shall disable either of the said Courts from directing a stay or feoceedings in any cause or matter pending before it, if it shall think fit ; and any person, whether a party or not to any such cause or matter, who would have been entitled, if this act had not passed, to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or other- wise, any judgment, decree, rule or order, contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the said Courts respectively, by motion in a summary way, for a stay of proceedings in such cause or matter, either generally, or so far as may be necessary for the purposes of justice ; and the Court shall thereupon make such order as shall be just. Such STAY OF FEOCEEDINGS wiU be granted in cases where under the former practice the Court which is asked to stay its own proceedings would have had to submit to an injunction from another Court (e), (e) For the practice, when two suits for the same object were institnted in different branches of tlie Court of Chancery, Morgan's Chancery Acts and Orders, p. 393, note (a). 166 INJUNCTIONS AND EECEIVEES. but probably a stay of proceedings will be more readily obtained than an injunction was under the old practice ; for example, in the case of administration suits, though they were encouraged in order to prevent the exercise of preference and retainer by executors (p. 92, ante), as a decree was a judgment for the benefit of all the creditors, it was only after the decree that proceedings by any of the creditors in other Courts would be restrained by injunction. See Kerr on Injunctions, p. 107; Nokes «. Gandy, L. K., 17 Eq. 297. As to the principles upon which one branch of the Court will stay its proceedings, on the ground of proceedings commenced in another branch of the Court, reference may be made to Martin v. Powning (L. E., 4 Ch. 356), where the Court of Chancery refused (even before the recent Bankruptcy Act, 32 & 33 Vict. c. 71, s. 72) to interfere with the administration of a deed registered under the Act of 1861 ; also to Morley v. White (L. R., 8 Ch. 214), where a deceased person's estate, which was being administered in Chancery, having also fallen into the hands of a trustee in bankruptcy, the deceased person having been a partner, and having both joint and separate liabilities, it was held that proceedings must be taken in bankruptcy before the administra- tion in Chancery could go on ; and Lord Justice James said (p. 218) : "It is true that there maybe important questions to be determined before it can be ascertained how the distribution is to be made ; but the Court of Bankruptcy is armed for that purpose with every power of a Court of Law and a Court of INJUNCTIONS AND EECEIVEES. 161 Equity, and there is not a single question stated to us, as an important and difficult question arising in this matter, which cannot be litigated and determined by that Court of Bankruptcy which the legislature has thought to be the proper tribunal for the deter- mination of it; and those questions, if decided in Bankruptcy, would come on appeal before the same Court as if they had been determined in Chancery, that is, before the same judges sitting under one name instead of under another. " Under these circumstances, I am of opinion that the proper forum to determine every one of these questions is the Court of Bankruptcy." It was held, however, in Ellis v. Silber (L. E., 8 Ch. 83), that when the trustee in bankruptcy has a demand against a stranger to the bankruptcy in respect of the bankrupt's estate, that claim may be prosecuted at Common Law or in Equity. If AN INTERPLEADER SUIT (the objCCt of which is to prevent the holder of money claimed by two persons from being vexed by two suits) is instituted in one branch of the Coiu-t, another branch will stay proceedings in respect of the same matter. Pru- dential Assurance Company v. Thomas (L. R., 3 Ch. 75), is a good example of an interpleader suit. In that case, an insurance company owed the repre- sentatives of James Black, who had insured his life, 200?., and a dispute arose between his widow, as his executrix, and a Mr. Thomas, who claimed that it had been assigned to him. Mr. Thomas filed his bill against the company, as trustee for him, and did 162 INJUNCTIONS AND EECEIVERS. not make the widow party, though he knew of her claim. Thereupon a new suit of interpleader was filed by the company against both claimants that they might interplead, and an injunction was granted by Lord Justice Rolt to restrain Thomas from pro- ceeding on his old suit in Equity or at Law. Let us now refer back to the clause in the Judi- cature Act of last year (p. 156, ante), which provides that injunctions or receivers may be granted by any branch of the Court wherever it is just ; and con- sider in what cases, and in respect of what wrongs, injunctions or receivers will be granted. An injunction may be either before, or at, or after the hearing of any cause or matter (p. 156, ante), i. e., there may be granted an inteklocutoet inoxtnc- TION pending the trial of the right ; the jurisdiction to grant the latter is obviously a very important power, for it may happen that the cause is not ripe for trial, that the evidence is not complete so as to enable the Court to try once for all whether the plaintiflf has a right to an injunction to restrain a defendant from infringing an equitable or a Common Law obligation, and yet, if the plaintiff shows a fair prima facie case, it will be very desirable that there should be an interim injunction to restrain the deal- ing with the property until the right is tried. An instructive case on this point is Beyfus v. Bullock (L. R., 7 Eq. 393), where a person was restrained from exercising a power and conveying to a purchaser for value without notice. The power was contained in a voluntary settlement INJUNCTIONS AND EECEIVEES. 163 made by a son upon his father, which settlement was impeached by the trustees in bankruptcy of the son. The plaintiff's counsel said, " It is in the power of the father, by means of the deed which is now im- peached, to convey the legal estate in such a manner as to defeat the plaintiff's rights; and we, therefore, ask that he may be restrained imtil the hearing from exercising the power of appointment contained in that deed in favour oi & purchaser for value, but we do not ask the Court to restrain the exercise of the power in favom^ of volunteers." V.-C. Malins said: " If I see on the allegations in the biU that there is a question to be tried at the hearing, however imim- portant it may be, it is my duty to extend the usual protection of the Court to the property in the mean- time," and he granted the injunction as asked. So the Court will generally provide for the safety of property pending litigation, by ordering the pro- perty to be brought into Court, or to be collected by a receiver. But it has generally been held, that the Court would not appoint a keceivee at the instance of a person claiming by a title which he might enforce by ejectment ; such a bill was called an ejectment bill, and would be dismissed, and the plaintiff would be turned over to the Common Law Court. Thus, where there were three persons claiming real pro- perty by three independent titles, and one of them asked for a receiver pendente lite, it was held, on ap- peal, that the Court had no jurisdiction to grant one. (Carrow v. Ferrior, L. E,., 3 Ch. 719.) So, where the plaintiff, entitled to an annuity payable out of lease- 164 INJXJNCTIONS AND KECEIVEES. hold property, came to ask for a receiver of his an- nuity, it was held that as he had a power of distress by 4 Geo. II. c. 28, to recover the annuity, the Court would give no relief; but it was said, that " if an annuity has been long in arrear, and a distress would not enable the annuitant to raise the amount due, a receiver might be necessary." (Kelsey v. Kelsey, L. R., 17 Eq. 495.) A plaintiff wiU no more have his suit dismissed for coming to the wrong Court, but a receiver will be granted, if just and convenient, whether the estate claimed be legal or equitable. Leaving the consideration of ex parte Injunctions, we come to consider Injunctions in general : — Injunctions are founded (1) on equitable rights, chiefly trust or fraud, such as spoken of in Chap. III., p. 42, ante; (2) on Common Law rights, where the sole question is, whether a Common Law right exists ; and the sole difference between Equity and ■ Common Law, and now to be imported from Equity into the High Court of Justice is, that Equity, recognizing the Common Law right, gives a better remedy. There are very few bills, perhaps, of a hostile nature which do not ask for an injunction ; thus, a suit to declare a trust and prevent a breach of trust, the bill would include a prayer for injunction to restrain the trustee from making improper use of his legal estate. Let us take an instance from a suit against directors of a company who are for some purposes trustees. In Pickering v. Stephenson (L. R., 14 Eq. 339), there was a company formed to make a line of railway from Smyrna: the directors INJUNCTIONS AND RECEIVERS. 165 gave dissatisfaction to some of the shareholders, who formed a committee, and complained vigorously of their direction. An action for libel was brought by the directors against the leader of these shareholders, and the company's funds were used to pay the costs. A suit was instituted to try the question whether the funds of the company could be used for any other purpose than for making the railway ; and it was held, that as it was a case of a majority and miaority who differed on a question of internal admi- nistration, it was contrary to the spirit of partnership that the expense of such litigation should be paid out of the general fund, and an injunction was granted restraining the directors from such payment. If a partner is excluded by his co-partners from the management of the affairs of the partner sthip, he may obtain, an injunction to restrain them from pre- venting him from ti'ansacting the business of the partnership, as a partner. The injunction in such cases is often accompanied by the appointment of a receiver to do what the trustee or partners ought to have done ; but the Court of Equity wiU not take the affairs of the partnership out of the hands of all the partners and entrust them to a receiver and manager of its own appointment, except with a view to a dissolution of the partnership ; as it winds up companies, but will not carry them on. Injunctions on equitable grounds include, of course, all the matters hereinbefore discussed ; e. g., an action against a surety who is released in Equity may be restrained ; (see p. 106, ante, and Evans v. Brem- ridge, 2 K. & J. 174;) and a person will be re- 166 INJUNCTIONS AND RECEIVERS. strained from suing on an instrument when it is void for mistake (see p. 133, ante). Next we come to injunctions ancillary or AUXILIARY TO THE COMMON LAW : casBS wtere the right enforced is a Common Law right. We have seen that the Court of Equity would not and, therefore, we may foresee that the High Court of Judicature will not, generally, appoint a receiver of rents where the plaintiff is in a position to sue out an ejectment, or to put in force a distress. And, similarly, it is not, and we may assume will not be (/), the practice to grant an injunction to restrain an alleged trespasser from continuing in posses- sion, or committing waste, unless the right of the- plaintiff, being out of possession, is established {g). See Earl Talbot v. Hope Scott (4 K. & J. 96), where Y.-C. Wood observed (p. 112), that "where there is an entire want of privity or equity to affect the conscience between a plaintiff entitled at Law and a defendant in wrongful possession, and the defen- dant is simply a wrongdoer at Law, this Court does not take upon itself to interpose unless in certain very exceptional cases ; such as where a mere tres- passer invades property by mining, by cutting down timber without a colour or shadow or pretence of (/) But the clause of the Judicature Act, quoted ante, p. 156, provides that an injunction may be granted, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise. (^) The case of an infant kept out of his possession is an exception to this rule against ejectment bills. (Howard «. Earl of Shrewsbury, L. E., 17 Eq. 378.; INJUNCTIONS AND RECEIVEHS. 167 title, so that the property may he destroyed before you can arrest his proceedings at Law.''^ The cases where an injunction will, if the present practice is preserved, be granted before the plaintiff's right to eject the defendant is tried, are : — (1.) If the injukt is irreparable, as in the case of cutting down trees. (2.) If the injury is continuous, and, the plaintiff's right having been already proved in one action, the wrong ought to be stopped once for all in order to prevent incessant actions, the continuous character of the "wrong making it grievous and intolerable. (3.) In some cases where railway companies, OR other corporations of a similar NATURE, are ALLEGED TO BE ABUSING PARLIAMENTARY POWERS (see p. 6, ante). (1.) A good example of irreparable damages being stopped by injunction is the case of the London and North Western Railway v. Lancashire and York- shire Eailway(L. E,., 4 Eq. 174), where the North Western Railway wanted to enlarge their station at Wigan, and made a gate out of an adjoining lane to their station, which gate the Lancashire and York- shire Railway, who were near but not friendly neigh- bours, blocked up. Lord Hatherley, then Vice- Chancellor, considered it a case of irremediable damage and granted the injunction, and, among other cases, referred to Hervey v. Smith ( 1 K. & J. 389), where he had felt no hesitation in granting a 168 INJUNCTIONS AND EECEIVEES. mandatory injunction, where a man had placed a tile- upon his neighbour's chimnej-pot. (2.) Injunctions against wrongful acts so continuous and vexatious that they ought to be stopped by injunc- tion (A), are exemplified by BILLS OF peace, which are bills filed for securing an established legal title against the vexatious recurrence of litigation, whether the vexation comes from a numerous class insisting on the same right, or from an individual reiterating an unsuccessful claim. It is held, that if the right he established at law it is entitled to adequate protec- tion. Thus, a person having established his tithe, and resisted a modus against one parishioner or more singly, could quiet his title by restraining fur- ther modus suits; or a lord of a manor, having re- sisted encroachments against one copyholder, could do likewise with the rest: and, similarly, one patentee may save himself many suits by trying out the question once for aU against many infringers. Cases where one lord of a manor has had his rights settled in a suit brought against many trespassers, have been numerous of late ; and of course, vice versa, the right may be settled in a similar suit against the lord. E. g., in "Warrick v. Queen's College (L. E., 10 Eq. 105 ; 6 Ch. 716), one commoner having instituted his suit for common rights, the lords of the manor contended that the various claims of common rights could not be included in one suit; but Lord Eomilly, M. R., and Lord Chancellor Hatherley, having found (Ji) Adams on Equity, p. 199. INJUNCTIOXS AND EECEIVERS. 169 a probable legal origiB for the rights claimed, granted an injunction against the lord, as upon a bill of peace, to end the matter in dispute. The Master of the Rolls said (p. 124): "Assume that it was proved by the production of the grants that similar grants of common of pasture had been made to a hundred freehold tenants. In that case two or three of the tenants might sue on behalf of themselves and all others for the preservation of their rights, even if they varied in degree — as, for example, in the number of beasts to be depastured. "When I look at the cases decided in Equity upon this subject, they seem to me all to support this view of the case. I had to consider the point in Smith V. Brownlow (L. E,., 9 Eq. 241), and I came to the same conclusion as I stiU do that the case of the Mayor of York v. Pilkington (1 Atk. 282), which I referred to, establishes the jurisdiction. "Does not this case of the Mayor of York v. Pilkington establish that the lord may file a bill against them all, or against some to represent the rest? and if so, is there to be no reciprocity in such case? May the lord comprise them all in one suit, and yet must they each file a separate bill against him to establish their rights? There is, in fact (as Lord Hardwicke says), a privity between them" (A). (/t) It may be worth while to note Lord Hatherley's words as to the commoners' claim by prescription. He said, "As to the sta- tute 2 & 3 Will. 4, c. 71, and the question whether there has been any interruption which might prevent the right being asserted, I do not think it necessary to inquire into that part of the case, because the prescription may be proved. The statute only applies to cases C, I 170 INJUNCTIONS AND EECEIVEKS. This case was followed by The Commissioners of Sewers v. Glasse (L. E., 7 Ch. 464), where the plaintiffs filed a bill on behalf of themselves and all other the owners and occupiers of lands within the forest of Essex, other than the waste lands of the forest (except such of them as were defendants or alleged to be represented by the defendants), against the lords of the several manors within the forest and two persons who claimed to be owners and occupiers of portions of the waste lands which had been in- closed ; and the Attorney-General and Lord Justice James said : " It is far better that the whole case should be tried in a Chancery suit, in which all per- sons interested in disputing the right claimed by the bill can join in making a defence — the costs of which, if they combine, cannot be very oppressive, and when the general right can be tried once for all, as between the persons interested on the one side, and the per- sons interested on the other side — than that it should be tried by the only other proceedings I know of. One of such proceedings would be the bringing ac- tions against every one of the trespassers for the dis- turbance of the rights of common. If it was done in that way there might be thousands of actions brought, because every one of the occupiers claiming the right of common could bring an action against every one of the persons who has made an encroach- ment." ■where you want to stand npon thirty years' nser ; bnt here, where the title Is one of 200 or 300 years, that statute is not needed, and the title can be rested upon the original right before the passing of the statute." INJUNCTIONS AND EECEIVEES. 171 ( 3. ) The practice of granting injxmctions more readily against persons and corporations who have been autho- rized by the Legislature to do certain acts which, without such authority, they would be incompetent to do (t), e. g., railway companies, is illustrated by Stretton v. Great Western Rail. Co. (L. R., 5 Ch. 760), where the company took Stretton's land and would not pay him, as they said he had not made out his title ; he put a rope across the line which the first train of com-se broke through, and he then moved for an injunction to restrain the railway com- pany from trespass. Malins, V.-C, refused the in- junction, but Lord Hatherley, on appeal, held that the plaintiff was entitled to the relief he asked, and said, "the Court has often in the case of railway com- panies granted relief to prevent the violent user of those powers with which the Legislature has clothed them, and takes care to do what is right between the parties." Waste is prevented, in cases of fraud, as in Garth V. Cotton (1 Ves. sen. 524, 546) {k), which (as V.-C. James said in Birch Wolfe v. Birch (L. R., 9 Eq. 690)) decided this, that " the law being that the first person entitled to an immediate estate of in- heritance is the only person who can recover, and that he is entitled to recover, for his own benefit, the value of all timber cut improperly by a tenant im- peachable for waste ; where by fraudulent coUusion and wrong doing between the tenant for life and the (t) See Adams on Eqnity, 211, 212. (*) 1 White & Tndor's Leading Cases. I 2 172 INJUNCTIONS AND EECEIVERS. owner of the inheritance in remainder such timber is cut, the Court, by its general jurisdiction to repress fraud, will interfere, notwithstanding it is a legal wrong, and there should have been a legal remedy en- tithng the remainderman to the value of the timber," And besides these cases, where there is collusion and fraud. Courts of Equity would interfere to pre- vent what is called equitable waste, i. e., waste which the Court of Equity restrained even where the life tenant was not impeachahle for waste; and henceforth by sect. 25, subs. (3), of the Judicature Act (I), 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 ex- pressly appear by the instrument creating such estate. As to the difference between legal and equitable waste, see the notes to Garth v. Cotton {uhi sup.), in 1 White & Tudor's Leading Cases, and Seagram V. Knight, L. R., 2 Ch. 628. Similar principles will apply to the exercise of the jurisdiction to grant injunctions in other cases, as nuisance, infringement of patents, coptkights, or TEADE-MAEKS, and BEEACHES OP COVENANT ; in all these cases injunctions are granted, in aid of the legal right, only where it is necessary to preserve and protect property from irreparable or at least from substantial or material damage, pending the trial of the right. (0 36 & 37 Vict. e. 66. INJUNCTIONS AND EECEIVEES. 173 If the case made out is such that the recovery of damages will give a full and adequate compensation for the injury, no foundation wiU be laid for the in- terference by way of injunction. If, on the other hand, the injury is of so material a nature that it cannot be well or folly compensated by the recovery of damages, or be such as from its continuance and permanent mischief might occasion a constantly-re- curring grievance, an injimction will be granted. Nuisances of a modem kind, which have been re- strained by injunction, are the pollution of rivers by sewage. (See Goldsmid v. Tunbridge Wells Com- missioners, L. E., 1 Ch. 349; Crossley v. Lightowler, L. E., 2 Ch. 478; Att.-Gen. v. Colney Hatch Limatic Asylum, L. E., 4 Ch. 146.) The collection of noisy crowds. ( See Walker v. Brewster, L. E., 5 Eq. 25; Inchbald v. Eobinson, L. E., 4 Ch. 388.) Interference with light and air. (See Yates v. Jack, L. E., 1 Ch. 298; City of London Brewery Case, L. E., 9 Ch. 212; Leech v. Schweder, ibid. 463.) Brick-burning, and other causes of discomfort ; see Walter v. SeFe, 4 De G. & S. 322; where Sir J. L. Ejaight Bruce said, " The question of interference with comfort must be estimated according to the plain and simple notions entertained by persons in ordinary life, and not according to those held by persons accustomed to elegant and dainty habits of living." And in Harrison v. Good (L. E., 11 Eq. 338), it was decided that the establishment of a dis- trict National School next a residence is not a legal nuisance. Similarly, injunctions to restrain breaches 174 INJUNCTIONS AND KECEIVEKS. OF COVENANT have for their object the protection of the property from irreparable damage pending the trial of the right. Instances of this kind of injmic- tion, and of injunctions in copyright, patent, and trade-mark cases, will be found in great abundance, and carefuUy arranged and digested, in Chapters XIX. to XXII. of Mr. Kerr's Book on Injunc- tions. ( 175 ) CHAPTEE IX. DISCOVERY. Though the Courts of Equity agreed with the Courts of Common Law in excluding the testimony of parties to the record or other interested witnesses, on their own behalf (a) (a restriction >vMch is now temoved, though evidence from an interested source is watched with cautious suspicion, see Haygarth V. Wearing, L. E., 12 Eq. 320; Hill v. Wilson, L. E., 8 Ch. 888), they differed from Courts of Conimon Law in allowing discoveky to be enforced upon oath. Courts of Chancery not only compelled defend- ants in ordinary suits in Equity to discover and set forth on oath every fact and circumstance within his knowledge, information or belief, material to the plaintiff's case, but also allowed bills of discovery in aid of proceedings before other tribunals. It was not until the passing of certain acts of the present reign, and especially the Common Law Procedure Act of 1854 (17 & 18 Vict. c. 125, ss. 51 — 57), that the judges were authorized to order that any party to an action at law shall, prior to the (a) See Daniell's Chancery Praetice, 821 ; Adams' Doctrine of Equity, 363; Taylor on Evidence, Chapter on "Competency of Witnesses," p. 1 160. 176 DISCOVERT. trial, be examined by his opponent upon all matters relating to the question in dispute (d). Since the Court of Chancery thus allowed a plaintiff, whose case might rest on facts lying only in the knowledge of a defendant, to interrogate the defendant (subject to proper safeguards which we shall consider), and put him on his oath (e), which the Common Law Courts did not allow; it often happened that matters which would otherwise have been proper for the Common Law Courts, e.ff., actions for rent, came into Equity solely for the pur- pose of making a defendant give proper discovery, just as other Common Law rights were brought into Equity solely for the purpose of getting an injunction; and it was formerly a matter of course to stay an action at Common Law which the defendant at Common Law alleged to be inequitable, until dis- covery in answer to his allegations was given in Equity. Such stay of the proceedings at Common Law was called a common injunction, because granted as a matter of course, but as it was often applied for merely in order to delay justice at Com- mon Law, it was provided by 15 & 16 Vict. c. 86, s. 58 (/), that common injunctions should be granted upon their merits as shown in the plaintiff's affi- davits. It is now provided by that part of the schedule to (d) See Taylor on Evidence, p. 489. (e) See Lewin on Trustees, p. 1, as to the subpoena by which a trustee could be summoned into Chancery, and compelled to answer on oath the allegations of his cestui que trust. (/) Morgan's Chancery Acts and Orders, 221. DISCOVERY. 177 the Judicature Act which relates to Discovery (^), that subject to any Eules of Court, a plaintiff in any action shall be entitled to exhibit interrogatories to, and obtain discovery from, any defendant, and any defendant shall be entitled to exhibit interrogatories to, and obtain discovery from, a plaintiff or any other party. Any party shall be entitled to object to any interrogatory on the ground of irrelevancy, and the Court or a judge, if not satisfied that such interrogatory is relevant to some issue in the cause, may allow such objection. It is obvious, that unless a plaintiff had the power of getting discovery justice would often be de- feated (Ji) ; but having this power, a plaintiff may first state his case generally as against a defendant, as a foundation for interrogatories, and then having obtained an (J.) answer from such defendant he will be able to alter or amend his statement of claim, which at first he could only state in general terms, because the defendant has by fraud or otherwise kept from him all the information on which his case rests. Cases frequently occur, for example, where a money lender taking advantage of another person's necessity, and probably also of his inexperience, induces him to put his signature to deeds, representing them to be securities for the money at a fair rate of interest, and as he keeps the documents in his hands, always hanging over the borrower in terrorem, the latter ig) 36 & 37 Vict. c. 66, Schedule, Bale 26. (K) See Taylor on Evidence, 490. (i) See Schedule to the Judicature Act (36 & 37 Vict. c. 66), Kule 18. i5 178 DISCOVERY. not having any knowledge as to what he has signed, could do nothing at Common Law, but wait until the lender comes to enforce them, and he will no doubt choose his time when it is most inconvenient to the borrower and most convenient to himself; but under the jurisdiction we are considering the bor- rower can state his case generally, then file inter- rogatories and obtain discovery what the securities are, and then amending his statement, can have them dealt with according to the justice of the case. I will consider ia this chapter — (A.) The RULES BY WHICH THE RIGHT TO DISCOVERY IS QUALIFIED. (B.) Eules relating to discovery of docu- ments. (C.) The rule that he who answers must ANSWER FULLY. (D.) The jurisdiction to examine witnesses ABROAD; to PERPETUATE TESTIMONY; to ESTABLISH WILLS ; and to take evi- dence BE BENE ESSE. (A.) Rules by which the right to dis- covery is qualified. 1. The first qualification I shall mention is per- haps an obvious one — that no person will be com- pelled to disclose or make discovery of any obliga- tions other than such obligations as the Court can give relief wpon. Thus, in Jones v. Badley (L. E., 3 Eq. 635) (p. 47, ante), the defendants John and James Badley were interrogated both as to any engage- ment amounting to a trust which they might have DISCOVERY. 179 entered into with the testatrix, and also as to their intentions with regard to the disposal of the money left to them. By their answer they absolutely denied that they were under any obligation to dis- pose of the property according to the views enter- tained by the testatrix, or that they directly or indirectly promised, agreed, or consented to imder- take any charitable trust. And as they thus denied the alleged trust, it was held that the Court would not take any notice of any imperfect obligation, nor compel them to give any further account of what they intended to do under the circumstances with the money which the testatrix had given them to deal with according to their discretion. So, as a purchaser for valuable consideration has an equal claim to the protection of the Court to defend his possession as a plaintiff who relies upon some counter equity has to the assistance of the Court to assert his right (p. 64, ante), the Court will not in general compel a purchaser for valuable consideration, without notice of the plaintiff's title, to make any discovery which may affect his own -title (A). Girdlestone v. N. B. Mercantile Insurance Co. (L. K., 11 Eq. 197) was a case on the border line, a question which would seem to be one more of honour and discretion than of right ; but discovery was decreed nevertheless. The circumstances were as follows : A policy of assurance had been granted upon the life of the plaintiff, a Civil servant, (Ji) Ponblanque on Equity, II. 490. 180 DISCOVEET. ■wh.0 went to reside in India, and, on account of his bad health, an additional premium was charged, but not the Indian extra rate. A premium having been delayed so as to forfeit the policy, the Company declined to reinstate it, except upon payment of the extra Indian rate ; and the plaintiff filed his bill for a declaration that he was entitled to the benefit of his policy upon payment of the premium originally charged, and interrogated the Company thus: " What did you do with regard to similar cases at the time my policy was issued? take ten policies immediately preceding and immediately subsequent to the date of my policy upon the lives of the per- sons about to start for India in the Civil Service, and state whether such extra payments were made in respect of such policies." Bacon, V.-C, held, that the plaintiff's charge being that the Com- pany's contention was contrary to the whole course of the conduct of all parties, he ought to have dis- covery of the circumstances under which he said the literal construction of the policy should not prevail. 2. Another objection which a party who is called upon to give discovery may make, is, that the dis- covery asked for is not relevant to the issue or NOT MATERIAL TO THE CASE of the person Seeking it. In illustration of this, we may take a recent case at Common Law on Discovery (Gourley v. Plimsoll, L. R., 8 C. P. 362), which was the well-known action against Mr. Plimsoll for libel. There Mr. Plimsoll, being in some difficulty as to getting facts to support his charges, and defend himself against the action for libel, took out a summons calling upon DISCOVERT. 181 the plaintiff, Mr. Gourley, to make discovery of his own practices as a shipowner. Mr. Plimsoll had pleaded truth in answer to the action for libel, and was ordered to deliver in three weeks particulars of the several matters he intended to rely on, and the substance of each case he alleged. Thereupon he took out the above-mentioned summons, and ap- plied for leave to administer interrogatories to Mr. Gourley, by which means only he would be enabled to set forth the particulars ordered, such as the. causes of the loss of each of the said respective ships, and the insurances on each, which were both matters peculiarly within the plaintiff's knowledge. It was argued that Mr. Plimsoll had no right to in^ terrogate the plaintiff in order to make up his case, but only to support his case when he knew what it was ; and it was held, that he must disclose his defence substantially before he could be entitled to file the interrogatories. To allow the interrogatories first would be to invert the order of things. It will be observed, that the right of exhibiting interrogatories is reciprocal, and that both the plaintiff and defendant may obtain discovery (see the rule quoted, ante, p. 177) : the case just quoted was an example of the defendant interrogating the plaintiff in aid of his defence. Under the present practice a defendant has this right, by 15 & 16 Vict. c. 86, s. 19 (Z), whereby in certain cases a defend- ant, afler answer, may file interrogatories for the examination of the plaintiff. (Z) Morgan's Chancery Acts and Orders, 177. 182 DISCOVERY. A consideration of Mr. Plimsoll's case will make it clear, that though it is very desirable that a bond fide plaintiff should be able to make a general state- ment of his case, and amend his case by getting discovery, yet strict rules are necessary to prevent a suitor who does not show a bond fide case from filing what are called fishing interrogatories, and getting at his adversary's defence before the proper time ; if such care were not taken, speculative litigation would be encouraged, and some plaintiffs might even frame a false case of their own to meet that of the other side. On all that relates to his own case a suitor is entitled to make the adversary answer, but all matters which are only part of the defence need not be disclosed till the hearing. A man cannot say in general terms, "I ^m entitied to such-and-such property, you are not — now show me your -title- deeds and defence " {m). Thus, thpugh a tenant of a manor may see the Court rolls and documents, being part of his own case (Warrick v. Queen's College, L. E., 3 Eq. 683), on the other hand, in Commissioners of Sewers v. Glasse (L. E.., 15 Bq. 302), it was held, that the defendant could not make the commissioners produce their own evidence of custom and user before the time. A well-known example of the doctrine that discovery, which is not material to the plaintiff's title, need not be given, is the rule that a mortgagee need not produce his deed until actual payment of all that is due (n). See Chichester v. Donegall (No. 2) (L. R., 5 Ch. 497), (m) Wigram, 212. (re) Fisher on Mortgage and other Securities, 340. BISCOVEKr, 183 where a tenant for life had mortgaged property, and a remainderman, who wanted to raise money on his interest but could not do so without the deeds, asked for them, but was told that if he liked to redeem the existing mortgage he might do so and hare the deeds, but if not, the mortgagee need not expose his security to the risk of having a flaw found in the deed. 3. Matters tending to criminate are privileged from discovery. Thus, in Brownsword v. Edward^ (2 Ves. sen. 243), a plaintiff claimed land through the son of Anne Edwards, and that son's legitimacy being disputed, interrogated Anne Edwards as to " when she was married, in whose presence, and where, and whether she had not issue thereby?" To this discovery Anne Edwards put in a plea, that her alleged husband was before married to her own sister, by whom he had children, who survived him ; and consequently, if she was married to him after- wards, it would be an incestuous marriage contrary to law, and would subject her to penalties in the Ecclesiastical Court. Against the plea, it was argued that the discovery was in favour of legiti- macy, and that there were precedents where "on bills suggesting wilfiil loss ,of a ship, for that the ovsTier had insured to twenty times value, though it was felony, yet where defendant was required to set forth insurances he must do so " (o) ; but the Lord Chancellor allowed the plea to discovery. So to a bin seeking discovery whether a person was a papist, (o) I qnote these words on acconnt of the curious recurrence of the same point in Gourley v. Plimsoll, p. 181, ante. 184 DISCOVERT. the defendant pleaded successfully statute 11 & 12 Will. III., disabling papists. 4. Professional communications are privi- leged : L e., (1) No layvian need discover legal advice which has been given him by his professional advisers, or statements of fact which have passed between himself and them in reference to the dispute in litigation I (2) No lawyer need discover any matters disclosed in the ordinary scope of profes- sional employment, communicated in his professional capacity in the transaction of his business whether disclosed in reference to the dispute in litigation or not. I have stated this rule as it has been usually stated, but whether the privilege is at this day different as it affects a lawyer and the client is very doubtful ; and the case of Minet v. Morgan (L. R., 8 Ch. 367), following Pearse v. Pearse (therein cited) seems to show that the client ought equally with the solicitor to be able to protect business done in private confidence (ja). 5. Official secrets are privileged, i.e., official persons need not disclose matters of state, the pub- lication of which might be prejudicial to the com- munity (§>). (B.) Discovert and production of documents can also be enforced, and this discovery is regulated by the same principles which regulate the right to discovery in the answer. The Judicature Act (36 & 37 Vict. c. 66, Schedule, ip) See Daniell's Chancery Practice, 528 ; Taylor on Evidence, '802—808. (j) Adams' Doctrine of Equity, 7, 8. DISCO VEET. 185 Eule 27) provides, that it shall be lawful for the Court or a judge, at any time during the pendency therein of any action or proceeding, to order the production by any party thereto, upon oath, of such of the documents in his possession or power relating to any matter in question in such suit or proceeding as the Court or judge shall think right ; and the Court may deal with such documents, when produced, in such manner as shall appear just. The present practice is that the party desiring production of documents takes out a summons for the purpose, and the other party makes a schedule of deeds and documents, with a statement, on oath, that bundle A. is material, bundle B. is not, and the adversary may read the one set of documents, but not the other, and take extracts (r). One important rule which has been laid down as to production of documents is, that where a party states in his pleadings the effect of a document on which he relies, and which he has in his possession, and craves leave to refer to it for greater certainty, he is bound to produce it (Hardman v. Ellames, 5 Sim. 640). The decision is criticised by Wigram on Discovery (ed. 1836), pp. 121 — 144, but was approved by Lord Cottenham in Adams v. Fisher (3 Myl. & Cr. 526, 548). It is now provided, that any party to an action or proceeding may give notice to any other party in whose pleadings or affidavits reference is made to any document to produce such document for inspection, and any party not comply- ing with such notice shall not be at liberty to put (r) See Morgan's Chancery Acts and Orders, p. 172. 186 DISCOVERY. such document in evidence on his behalf in such action or proceeding unless he shall satisfy the Court that such document relates only to his own title, or that he had some other sufficient cause for not com- plying with such notice. (36 & 37 Vict. c. 66, Sched., Rule 26.) Considerable difficulty sometimes arises on the question of materiality, i. e., when the plaintiff asks for DOCUMENTS which will be no use to him if he loses, and which, if he wins, will be his as a matter of course. ( See Elmer v. Creasy, L. K., 9 Ch. 69.) If, for example, he says, " I am your partner or cestui que trust, show me the accounts and the books, they will help nie in my case," then the first thing for him to show clearly is that he is a partner or cestui que trust, and the defendant often contends in such cases that he ought not to be put to useless expense. In such cases the Court has a discretion, and will consider whether the documents called for do or do not fairly constitute a part of the plaintiff's case. Thus, in Lockettw. Lockett (L. E., 4 Ch. 336), it was said that the principle upon which the Court has always acted is to consider the circumstances of the case and see what useful object could be served by compelling such an account ; and the more strict the Court is in compelling a fiiU answer, the more necessary it is that the Court should be vigilant in seeing that the process of the Court is not made use of in an oppressive manner. Lord Redesdale is quoted as saying, that " In the case of an account required, wholly independent of the title, the Court has DISCO VEKY. 187 declined laying down any general rule, and decides, ordinarily, upon the circumstances of the particular case. Thus, to a bill stating a partnership, and seek- ing an account of the transactions of the alleged partnership, the defendant, by his answer, denied the partnership, and declined setting forth the accounts required, insisting that the plaintiff was only his servant ; and the Court, conceiving the account sought not to be material to the title, overruled ex- ceptions to the answer for not setting forth the account." " That case, therefore," said the judges in liockett V. Lockett, " is an authority in point upon the present case ; and if the rule is taken to be as expressed by Lord Redesdale, that in these cases of laborious accounts the Court must look at the par- ticular circumstances of each case, or, as expressed by Sir James Parker, that we must inquire what object would be gained by compelling the defendant to do that which he is required at great expense and trouble to do; then, if we look at the circum- stances of the present case, we find the circumstances stronger in favour of the defendant than those which existed in White v. Barker (5 De G. & Sm. 746). The plaintiff says in his bill, that nothing but a carefid investigation of the books and accounts by a professed accountant would have enabled the plaintiff to discover how the affairs of the partnership itself stood. If we look at the object to be gained by the plaintiff, one can understand that if he had asked any precise and particular questions, as mentioned before, he might, and probably would, have obtained 188 DISCOVERY. something which was material for the purpose of the suit ; but he has not so done." So, in Carver v. Pinto Leite (L. R., 7 Ch. 90, 97), a trade-mark case, it was said that " Where the de- fendant cannot protect himself from giving discovery, he must give a fuU discovery of accounts material to the plaintiff's case, which may be produced without overwhelming amount of injury to the defendant, the Court will not generally weigh in golden scales the materiality; but there are cases in which it is im- portant that the Court should so weigh it, for the plaintiff, failing at the hearing, might afterwards use such discovery prejudicially to the defendant. In such cases, it is important to consider, is it material to establish his case at the hearing, or material only for the subsequent purposes of the suit in case the plaintiff should succeed ?" See fiirther, as to the dis- cretion of the Court in such cases, Saull v. Browne, L. R„ 17 Eq. 402 ; 9 Ch. 364 ; Elmer v. Creasy, L. R., 9 Ch. 69 ; Great Western Rail. Co. v. Tucker, ibid. 376. (C.) The cases above cited will have sufficiently explained and illustrated the rule that "he who ANSWERS MUST ANSWER FULLY." Vice- Chancellor Wigram (r) states the rule thus, that where a defendant who might defend himself by demurrer or plea (both of which shall be considered) submits to answer, he cannot, except in the case of a purchaser for value without notice {ante, pp. 64 and 179), protect himself against discovery, upon the (■;•) Points in the Law of Discovery, ed. 1836, p. 214. DISCOVERY. 189 ground only that a demurrer or plea might have been sustained, but must give a ftdl answer (s) to the bill. An answer {t) is to be deemed full where it is so, with reference to the restrictions imposed upon the right to discovery in general. In other words, a plaintiff may by answer protect himself against any particular discovery which is improperly called for by the bill, on the ground that it is immaterial, or otherwise privileged. If a party wishes to protect himself from putting in any answer at all, he should demub. A party who demurs in effect says, " Supposing, for argument's sake, that the facts are as you state them, you have no case in law, and, therefore, no right to interrogate me ;" and so the dispute is fought out on the simple point of law. Thus, in the case of Fothergill v. Rowland (p. 115, ante), where the suit was instituted for the purpose of compelling coal owners to keep their contract to seU aR the coals they (s) The word " ansmer" is here, and will under the new practice be used in its natural and proper sense, of the discovery given in answer to interrogatories calling for discovery. Much confusion was caused by applying the term not only to this discovery, but also to the defendant's own case in reply, the defendant's examination and the defendant's case being generally comprised in one document. See Wigram's Points in the Law of Discovery, Introductory Chapter. The word " answer" will no longer, under the Judicature Act, include the defendant's case, by which he accounts for his conduct, or raises a counter-case for relief against the plaintiff ; for the Act calls that part of the defence " the defendant's statement," and keeps quite separate the discovery which mvst be given, from the counter-case which may or may not be set up, by the defendant. (36 & 37 Vict. c. 66, Schedule, Kules 18—24.) (t) See Wigram's Points in the Law of Discovery, p. 215. 190 DISCOVERT, got to the plaintiff: the defence was ; " Admitting the contract to have been as you say, you have no case in Equity ; this Court will not enforce a con- tract to deliver personalty — the law is against you on your own showing." Sir G. Jessel, M. K., dedded it was so, and said, " It is a great benefit to all parties to have the questions and cases speedily and oteaply determined, and the practice of demurring 6ught if possible to be encouraged." The Judicature Act (36 & 37 Vict. c. 66, Sched., Kule 18) provides, that " a demurrer to any statement may be filed in such manner and foi'm as may be prescribed by rules of Court.'' The principle of defence by plEa is, tbat the de- fendant avers some one matter of avoidance, and re- duces his defence to some gingle issue. A plea is founded on some matter or rule of law not stated in the biU; otherwise the defence would be by demurrer. The defence by plea is not noticed in the schedule to the Judicature Act, but it is provided {ibid.. Rule 19), that " where in any action it appears to a judge that the statement of claim, or defence, or reply, does not sufficiently disclose the issues of fact in dispute between the parties, he may direct the parties to prepare issues, and such issues shall, if the parties differ, be settled by a judge." (D.) Finally, I will mention some special modes in which Courts of Equity give assistance towards the taking and preservation of evidence. 1. The jurisdiction to examine w^itnissses abroad originated in the incapacity of the Common Law Courts to issue a commission for the purpose, with- DISCOVERY. 191 out the consent of both parties (i). Such commis- sions were issued by Courts of Chancery, both for the purpose of suits there instituted, and also in aid of the Common Law process; but now the practice is to appoint a special examiner for such examina- tion (m), or to take the evidence required before one of her Majesty's consuls, or other persons natned in 15 & 16 Vict. c. 86, s. 22 (x). 2. Bills to peepetuate testimony enable per- sons to take evidence for the purpose of quieting their title in cases where the facts likely to come into dispute cannot be immediately investigated by legal process, e. g., where the person has merely a future interest, or is himself in possession, and is afraid of disturbance at a fiiture time. It was decided in Earl Spencer v. Peek (3 L. E,., Eq. 415), that if a suit is actually pending respecting certain rights, another suit to perpetuate testimony in favour of such rights is improper and must be stayed. This was one of those cases involving rights of common, some of which we have discussed in the last Chapter on Injunctions. A suit had been com- menced by Peek, one of the tenants of Wimbledon manor, on behalf of himself and others to enforce rights of digging clay; and Earl Spencer filed a counter-bill for the purpose of perpetuating the testi- mony of several old inhabitants, alleging that Peek's suit would not come to a hearing for a long time, perhaps never, and meantime his witnesses might (t) Adams' Doctrine of Equity, 23. («) Morgan's Chancery Acts and Orders, 1 86. (a;) Ibid. 179. 192 DISCOVERY. probably die ; but Lord Romilly, M. E., held, tliat such a bill could only be filed where no suit was commenced involving the right — and as there was a suit pending, the witnesses must be examined de bene esse in the suit. (See p. 193, post.) Formerly, this jurisdiction of perpetuating testi- mony was only exercised where future invasion of property was apprehended; but it was enacted by 5 & 6 Vict. c. 69, that such a bill may be filed by any person alleging a title " on the happening of a future event to any honour, title, dignity or office, or any estate or interest in any property, real or per- sonal. Re Tayleur (L. E.., 6 Ch. 416) raises a curious question whether persons named as beneficiaries in the win of a limatic, which they knew was likely to be attacked as made by him when of unsound mind, could file such a biU — for they had no interest until the death of the testator. The Lords Justices did not decide that the suit would be improper, but rather lent a sanction to it by giving directions as to the expense of it. Suits for the establishment or wills in Chancery, or rather by the aid of Chancery, are similar to these. The Probate Court, by 20 & 21 Vict. c. 77, took the place of the Ecclesiastical Courts, which formerly tried the title of an executor as to personalty, or decided who should be adminis- trator. And wills of real estate are also now proved in solemn form in the same Court. (See "Williams on Executors, pp. 308, 320.) The Court of Chan- cery never interfered with this jurisdiction, but only DISCOVERY, X93 assisted tlie proper Court by allowing a devisee to file his bill to perpetuate the testimony of a de- ceased testator's soundness of mind and thus esta- blish the wiU; and such a suit would be allowed if a devisee taking under a will knew that the heir was waiting only till evidence in favour of the will was gone, as the cases of Boyse v. Eossborough (Kay, 71, 102), and Lovett v. Lovett (3 Kay & J. 1) show; but, as we have seen already, a Court of Equity would not itself try the validity of a will, not even in case of fraud, though it would declare a trust where the devisee's conscience ought to be so affected. See Jones V. Gregory, 2 De Gr., J. & S. 83, and p. 48, ante. The jurisdiction to examine witnesses DE bene esse is a jurisdiction for permitting evidence to be taken in a suit, which may be lost by delay because the witness is infirm ; so called in law Latin because the evidence, being taken ex parte, is read de bene esse, — " for what it is worth." HiU V. Hibbit (L. R., 7 Eq. 421) is a case which shows how strict the Court is that evidence which has been taken de bene esse for the purpose of a pending suit must be taken over again, if when the suit comes to a hearing the witness whose evidence was so taken is still alive and able to be examined and cross-examined. As Sir W. M. James said, i;i deciding the application in HiUw. Hibbit (ubi sup.), one of the conditions under which evidence is taken dg bene esse is, that it is not to be used, unless and until it becomes necessary that it shall be used. C. K 194 DISCOVERY. The points relating to the law of discovery, which we have now been considering, will no doubt be directly imported into the practice of the High Court of Judicature, excepting where the rules to be hereafter issued shall provide to the contrary, and if in the course of these chapters it may appear that some rules and doctrines of Equity, which are now to be done away, have been dwelt iipon to the exclusion of more important matters, it must be remembered that, even in cases where new rules shall be made, their interpretation will greatly de- pend upon the analogy of the old system, and that (pp. 209, 210, post) "where there is any conflict or variance between the rules of Equity and the rules of Common Law, with reference to the same mat- ter, the rules of Equity shall prevail." THE END. APPEI^DIX. SUPREME COURT OF JUDICATURE ACT, 1873. 36 & 37 Vict. c. 66. An Act for the constitution of a Supreme Court, and for other purposes relating to the better Ad- ministration of Justice in England; and to au- thorize the transfer to the Appellate Division of such Supreme Court of the Jurisdiction of the Judicial Committee of Her Majesty's Privy Coxmcil. I5th August, 1873.] Whereas it is expedient to constitute a Supreme Court, and to make provision for the better administration of justice in England : And whereas it is also expedient to alter and amend the law relating to the judicial committee of her Majesty's privy council : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows : Preliminary (a). 1. This Act may be cited for all purposes as the short utic " Supreme Court of Judicature Act, 1873." [2. This Act, except any provision thereof which is commenci declared to take effect on the passing of this Act, shall "''"' "' ^ (a) Por the interpretation of terms, see sect. 100, post. k2 196 Union of ex- ist ing Courts into one Su- preme Court. Division of Supreme Court into a Court of ori- t7inal and a Court of ap- pelJate juris- cUctiou. Constitution of High Court of Jus- tice. APPENDIX. commence and come into operation on the second day of November, 1875 (5).] Part I. Constitution and Judges of Supreme Court. 3. From and after the time appointed for the com- mencement of this Act, the several Courts hereinafter mentioned, (that is to say,) the High Court of Chancery of England, the Court of Queen's Bench, the Court of Common Pleas at Westminster, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy, shall be united and conso- lidated together, and shall constitute, under and subject to the provisions of this Act, one Supreme Court of Judicature in England. 4. The said Supreme Court shall consist of two per- manent divisions, one of which, under the name of " Her Majesty's High Court of Jttstice," shall have and exer- cise original jurisdiction, with such appellate jurisdiction from inferior Courts as is hereinafter mentioned, and the other of vvrbich, under the name of " Her Majesty's Court of Appeal'^c), shall have and exercise appellate jurisdiction, with such original jurisdiction as hereinafter mentioned as may be incident to the determination of any appeal. 5. Her Majesty's High Court of Justice shall be con- stituted as follows : — The first judges thereof shall be the Lord Chancellor, the Lord Chief justice of England, the Master of the Rolls, the Lord Chief Justice of the Com- mon Pleas, the Lord Chief Baron of the Exchequer, the several Vice-Chancellors of the High Court of Chancery, the judge of the Court of Probate and of the Court for Divorce and Matrimonial Causes, the several puisne justices of the Courts of Queen's Bench and Common Pleas respectively, the several junior barons of the Court of Exchequer, and the judge of the High Court of Admi- (i) This date was fixed by the Supreme Court of Judicature (Commencement) Act, 1874. (o) It is now proposed to constitute a Com-t to be called " Her Majesty's Imperial Conrt of Appeal," in place of the Court of Appeal meutioned in the text. APPENDIX. 1 97 ralty, except such, if any, of the aforesaid judges aS shall be appointed ordinary judges of the Court of Appeal. Subject to the provisions hereinafter contained, when- ever the office of a judge of the said High Court shall become vacant, a new judge may be appointed thereto by her Majesty, by letters-patent. All persons to be here- after appointed to fill the places of the Lord Chief Justice of England, the Master of the EoUs, the Lord Chief Jus- tice of the Common Pleas, and the Lord Chief Baron, and their successors respectively, shall continue to be appointed to the same respective offices, with the same precedence, and by the same respective titles, and in the same manner, respectively, as heretofore. Every judge who shall be appointed to fill the place of any other judge of the said High Court of Justice shall be styled in his appointment "judge of her Majesty's High Court of Justice," and shall be appointed in the same manner in which the puisne justices and junior barons of the Superior Courts of Common Law have been heretofore appointed : provided always, that if at the commencement .of this Act the number of puisne justices and junior barons who shall become judges of the said High Court shall exceed twelve in the whole, no new judge of the said High Court shall be appointed in the place of any such puisne justice or junior baron who shall die or re- sign while such whole number shall exceed twelve, it being intended that the permanent number of judges of the said High Court shall not exceed twenty-one {d). All the judges of the said Court shall have in all respects, save as in this Act is otherwise expressly pro- vided, equal power, authority, and jurisdiction ; and shall be addressed in the manner which is now customary in addressing the judges of the Superior Courts of Common Law. The Lord Chief Justice of England for the time being shall be president of the said High Court of Justice in the absence of the Lord Chancellor. [Sect. 6 provides for the constitution of a Court of (^d) i. e., " exclusive of the Lord Chancellor," as was explained in the bill introduced and withdrawn, 1874. 198 APPENDIX. Frovipions for extraor- rtiiiary duties of judges of tlie former Courta. Appeal, but it is proposed to bring in an Act in 1875 to constitute an Imperial High Court of Appeal.] The ordinary and additional judges of the Court of Appeal shall be styled Lords Justices of Appeal. All the judges of the said Court shall have, in all respects, save as in this Act is otherwise expressly mentioned, equal power, authority and jurisdiction. Whenever the office of an ordinary judge of the Court of Appeal becomes vacant, a new judge may be appointed thereto by her Majesty by letters-patent. The Lord Chancellor for the time being shall be president of the Court of Appeal. [Sect. 7 provides that the office of any judge may be vacated by resignation and for the effect of vacancies generally.] [Sect. 8 provides the qualifications of judges.] [Sect. 9 provides for the tenure of the office of the judges, and their oaths of office, and that the judges shall not sit in the House of Commons.] "Sect. 10 provides for the precedence of judges.] "Sect. 11 saves the rights and obligations of existing judges.] _ _ . 12. If, in any case not expressly provided for by this Act, a liability to any duty, or any authority or power, not incident to the administration of justice in any Court, whose jurisdiction is transferred by this Act to the High Court of Justice, shall have been imposed or conferred by any statute, law, or custom upon the judges or any judge of any such Courts, save as hereinafter mentioned, every judge of the said High Court shall be capable of performing and exercising, and shall be liable to perform and empowered to exercise every such duty, authority, and power, in the same manner as if this Act had not passed, and as if he had been duly appointed the suc- cessor of a judge liable to such duty, or possessing such authority or power, before the passing of this Act. Any such duty, authority or power, imposed or conferred by any statute, law or custom, in any such case as aforesaid, upon the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, or the Lord Chief Baron, shall con- tinue to be performed and exercised by them respectively, APPENDIX. 199 and by their respective successors, in the same manner as if this Act had not passed. ESect. 13 provides for the salaries of future judges.] Sect. 14 provides for the retiring pensions of future judges of the High Court of Justice, and the ordinary judges of Court of Appeal.] [Sect. 15 provides how the salaries and pensions are to be paid.] Part II. Jurisdiction and Law. 16. The High Court of Justice shall be a Superior jurisdiction Court of Eecord, and, subject as in this Act mentioned, °j j^|,'5c°''"'''' there shall be transferred to and vested in the said High Court of Justice the jurisdiction which, at the commence- ment of this Act, was vested in, or capable of being exer- cised by, all or any of the Courts following ; (that is to say,) (1.) The High Court of Chancery, as a Common Law Court as well as a Court of Equity, including the jurisdiction of the Master of the EoUs, as a judge or master of the Court of Chancery, and any jurisdiction exercised by him in relation to the Court of Chancery as a Common Law Court ; (2.) The Court of Queen's Bench ; (3.) The Court of Common Pleas at Westminster ; (4.) The Court of Exchequer, as a Court of Revenue, as well as a Common Law Court ; (5.) The High Court of Admiralty ; (6.) The Court of Probate ; (7.) The Court for Divorce and Matrimonial Causes ; (8.) The London Court of Bankruptcy ; (9.) The Court of Common Pleas at Lancaster ; (10.) The Court of Pleas at Durham ; (11.) The Courts created by commissions of assize, of oyer and terminer, and of gaol delivery, or any of such commissions : The jurisdiction by this Act transferred to the High Court of Justice shall include (subject to the exceptions hereinafter contained) the jurisdiction which, at the com- 200 APPENDIX. Jurisdiction not trans- ferred to High Court. Jurisdiction transferred to Court of Appeal. mencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the judges of the said Courts, respectively, sitting in Court or chambers, or elsewhere, when acting as judges or a judge, in pursuance of any statute, law, or custom, and all powers given to any such Court, or to any such judges or judge, by any statute ; and also all ministerial powers, duties, and autho- rities, incident to any and every part of the jurisdictions so transferred. 17. There shall not be transferred to or vested in the said High Court of Justice, by virtue of this Act, — (1.) Any appellate jurisdiction of the Court of Appeal in Chancery, or of the same Court sitting as a Court of Appeal in Bankruptcy : (2.) Any jurisdiction of the Court of Appeal in Chan- cery of the county palatine of Lancaster : (3.) Any j urisdiction usually vested in the Lord Chan- cellor or in the Lords Justices of Appeal in Chancery, or either of them, in relation to the custody of the persons and estates of idiots, lunatics, and persons of unsound mind (e) : (4.) Any jurisdiction vested in the Lord Chancellor in relation to grants of letters-patent, or the issue of commissions or other writings, to be passed under the great seal of the United Kifiigdom : (5.) Any jurisdiction exercised by the Lord Chancellor in right of or on behalf of her Majesty as visitor of any college, or of any charitable or other foundation : (6.) Any jurisdiction of the Master of the Rolls in relation to records in London or elsewhere in England. 18. The Court of Appeal established by this Act shall be a Superior Court of Eecord, and there shall be trans- ferred to and vested in such Court all jurisdiction and powers of the Courts following ; (that is to say,) (1.) All jurisdiction and powers of the Lord Chan- cellor and of the Court of Appeal in Chancery, (e) It is intended that this jnrisdiction shall be exercised hy such .Judges as may be intrusted by the sign manual of Her Majesty or her successors with such care, and meanwhile by the Lords .fustices. APPENDIX. 201 in the exercise of his and its appellate jurisdic- tion, and of the same Court as a Court of Appeal iu Bankruptcy : (2.) All jurisdiction and powers of the Court of Appeal iu Chancery of the county palatine of Lancaster, and all jurisdiction and powers of the chancellor of the duchy and county palatine of Lancaster when sitting alone or apart from the Lords Justices of Appeal in Chancery as a judge of re-hearing or appeal from decrees or orders of the Court of Chancery of the county palatine of Lancaster : (3.) All jurisdiction and powers of the Court of the Lord Warden of the Stannaries assisted by his assessors, including all jjarisdiction and powers of the said Lord Warden when sitting in his capacity of judge: (4.) All jurisdiction and powers of the Court of Exchequer Chamber: (5.) All jurisdiction vested in or capable of being exercised by her Majesty in council, or the Judicial Committee of her Majesty's Privy Council, upon appeal from any judgment or order of the High Court of Admiralty, or from any order in lunacy made by the Lord Chan- cellor, or any other person having jurisdiction in lunacy. [Sects, 19—21 provide for appeals from the High Court, but it is proposed to amend these provisions on the con- stitution of the Imperial Court of Appeal, p. 196, note (c).] 22. From and after the commencement of this Act the Transfer of several jurisdictions which by this Act are transferred to ^™'"°^ '"''''"' and vested in the said High Court of Justice and the said Court of Appeal respectively shall cease to be exercised, except by the said High Court of Justice and the said Court of Appeal respectively, as provided by this Act ; and no further or other appointment of any judge to any Court whose jurisdiction is so transferred shall be made except as provided by this Act : Provided, that in all causes, matters and proceedings whatsoever which shall have been fully heard, and in which judgment shall not have been given, or having been given shall not have K 5 202 APPENDIX. been signed, drawn up, passed, entered or otherwise perfected at the time appointed for the commencement of this Act, such judgment, decree, rule or order may be given or made, signed, drawn up, passed, entered or perfected respectively, after the commencement of this Act, in the name of the same Court, and by the same judges and officers, and generally in the same manner, in all respects as if this Act had not passed ; and the same shall take effect, to all intents and purposes, as if the same had been duly perfected before the commencement of this Act ; and every judgment, decree, rule or order of any Court whose jurisdiction is hereby transferred to the said High Court of Justice or the said Court of Appeal, which shall have been duly perfected at any time before the commencement of this 4-ct, may be executed and enforced, and, if necessary, amended or discharged by the said High Court of Justice and the said Court of Appeal respectively, in the same manner as if it had been a judgment, decree, rule or order of the said High Court or of the said Court of Appeal ; and all causes, matters and proceedings whatsoever, whether civil or criminal, which shall be pending in any of the Courts whose jurisdiction is so transferred as aforesaid at the commencement of this Act, shall be continued and concluded, as follows (that is to say), in the case of proceedings in error or on appeal, or of proceedings before the Court of Appeal in Chancery, in and before her Majesty's Court of Appeal ; and, as to all other proceedings, in and before her Majesty's High Court of Justice. The said Courts respectively shall have the same jurisdiction in relation to all such causes, matters and proceedings as if the same had been com- menced in the said High Court of Justice, and continued therein (or in the said Court of Appeal, as the case may be) down to the point at which the transfer takes place; and, so far as relates to the form and manner of proce- dure, such causes, matters, and proceedings, or any of them, may be continued and concluded, in and before the said Courts respectively, either in the same or the like manner as they would have been continued and con- cluded in the respective Courts from which they shall have been transferred as aforesaid, or according to the ordinary course of the said High Court of Justice and APPENDIX. 203 the said Court of Appeal respectively (so far as the same may be applicable thereto), as the said Courts respec- tively may think fit to direct. 23. The jurisdiction by this Act transferred to the ituies as to said High Court of Justice and the said Court of Appeal j'urisdtetion. respectively shall be exercised (so far as regards proce- dure and practice) in the manner provided by this Act, or by such rules and orders of Court as may be made pursuant to this Act ; and vchere no special provision is contained in this Act or in any such rules or orders of Court with reference thereto, it shall be exercised as nearly as may be in the same manner as the same might have been exercised by the respective Courts from which such jurisdiction shall have been transferred, or by any of such Courts. 24. In every civil cause or matter commenced in the Law and High Court of Justice, Law and Equity shall be adminis- c.mcifrreiif'iy tered by the High Court of Justice and the Court of administered. Appeal respectively according to the rules following : (1.) If any plaintiff or petitioner (f) claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right, which heretofore could only have been given by a Court of Equity, the said Courts respectively, and every judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the Court of Chancery in a suit or proceeding for the same or the like purpose properly instituted before the passing of this Act. (2.) If any defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim asserted by any plaintiff or petitioner in such (/) Inclading every person making application by petition, motion or summons, sect. 100, p. 2Z7,post- 204 APPENDIX. cause or matter, or alleges any ground of equit- able defence to any claim of the plaintiff or petitioner in such cause or matter, the said Courts respectively, and every judge thereof, shall give to every equitable estate, right, or ground of relief so claimed, and to every equit- able defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner, as the Court of Chancery ought to have given if the same or the like matters had been relied on by way of defence in any suit or proceeding instituted in that Court for the same or the like purpose before the passing of this Act. (3.) The said Courts respectively, and every judge thereof, shall also have power to grant to any defendant in respect of any equitable estate or right, or other matter of equity, and also in re- spect of any legal estate, right, or title claimed or asserted by him, all such relief against any plaintiff or petitioner as such defendant shall have properly claimed by his pleading, and as the said Courts respectively, or any judge thereof, might have granted in any suit insti- tuted for that purpose by the same defendant against the same plaintiff or petitioner ; and also all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of Court or any order of the Court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose ; and eveiy person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim, as if he had been duly sued in the ordi- nary way by such defendant. APPENDIX. (4.) The said Courts respectively, and every judge thereof, shall recognize and take notice of all equitable estates, titles and rights, and all equit- able duties and liabilities appearing incidentally in the course of any cause or mattei', in the same manner in which the Court of Chancery vrould have recognized and taken notice of the same in any suit or proceeding duly instituted therein before the passing of this Act. (5.) No cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction (g) ; but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained, if this Act had not passed, either un- conditionally or on any terms or conditions, may be relied on by way of defence thereto : pi'o- vided always that nothing in this Act contained shall disable either of the said Courts from directing a stay of proceedings in any cause or matter pending before it if it shall think fit (A) ; and any person, whether a party or not to any such cause or matter, who would have been entitled, if this Act had not passed, to apply to any Court to restrain the prosecution thereof, or who may be entitled to enfoi'ce, by attachment or otherwise, any judgment, decree, rule, or order, conti'ary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the said Courts respectively, by motion in a summary way, for a stay of proceedings in such cause or matter, either generally, or so far as may be necessary for the purposes of justice ; and the Court shall thereupon make such order as shall be just. (6.) Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity 205 ( g) See ante, p. 1 58. (A) See a?ite, p. 159. 206 APPENDIX. iu manner aforesaid, and to the other express provisions of this Act, the said Courts respec- tively, and every judge thereof, shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities existing by the Common Law or by any custom, or created by any statute, in the same manner as the same would have been re- cognized and given effect to if this Act had not passed by any of the Courts whose jurisdiction is hereby transferred to the said High Court of Justice. (7.) The High Court of Justice and the Court of Ap- peal respectively, in the exercise of the jurisdic- tion vested in them by this Act in every cause or matter pending before them respectively, shall have povrer to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim pro- perly brought forward by them respectively in such cause or matter ; so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided. Rules of law 25. And whereas it is expedient to take occasion of pS?'""" ^^^ union of the several Courts whose jurisdiction is hereby transferred to the said High Court of Justice to amend and declare the law to be hereafter administered in England as to the matters next hereinafter mentioned : "^ be it enacted as follows : Administra- (1.) In the administration (i) by the Court of the assets of'l'nsoiTCnr ^^ ^T person who may die after the passing of e^tatea. this Act, and whose estate may prove to be in- sufficient for the payment in full of his debts and liabilities, the same rules shall prevail and be observed as to the respective rights of secured (?) See pp. 12, 93, ante. APPENDIX. 207 and unsecured creditors (j), and as to debts and liabilities proveable, and as to the valuation of annuities and future or contingent liabilities respectively, as may be in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt ; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person may come in under the decree or order for the admi- nistration of such estate and make such claims against the same as they may respectively be entitled to by virtue of this Act. (2.) No claim of a cestui que trust against his trustee statutes of for any property held on an express trust (k), inapplicable or in respect of any breach of such trust, shall '" express be held to be barred by any statute of limita- tions. (3.) An estate for life without impeachment of waste EquitaWe shall not confer or be deemed to have conferred ^'^'^' upon the tenant for life any legal right to com- mit waste of the description known as equitable waste (I), unless an intention to confer such right shall expressly appear by the instrument creating such estate. (4.) There shall not, after the commencement of this Merger. Act, be any merger (m.) by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or ex- tinguished in equity. (5.) A mortgagor (n) entitled for the time being to the suits for possession or receipt of the rents and profits of of lanij'b" any land as to which no notice of his intention mortgagors. ij) That is, a secured creditor can prove only for the balance due after realizing or yaluing his security. In winding up companies the Court of Chancery allowed a secured creditor to prove for his whole debt. See Fisher on Mortgages, 539 ; Kellock's case, L. R., 3 Ch. 769. (A) See p. 22, ante. ll) See p. 172, ante. (m) See pp. 86 and 105, ante. (to) See pp. 104 and 130, ante. 208 APPENDIX. to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such pos- session, or for the recovery of such rents or profits, or to prevent or recover damages in re- spect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person. Assignment (6.) Any absolute assignment, by writing under the chosS'iii'""' li^'n'i of the assignor (not purporting to be by action. Way of charge only), of any debt or other legal chose in action {o), of which express notice in writing shall have been given to the debtoi', trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities (jo) 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 con- currence of the assignor : provided always, 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 thereto to interplead {q) concern- ing 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 reUef of trustees (r), (o) See pp. 59, 60, ante, (j)) See pp. 61 and 145, ante, iq) See p. 161, ante. (r) See p. 39, ante; and Morgan's Chancery Acts and Orders, p. 64. APPENDIX. 209 (7.) Stipulations in contracts, as to time or otberwise, stipulations which would not before the passing of this Act ™sence'o'f have been deemed to be or to have become of contracts. the essence of such contracts in a Court of Equity shall receive in all Courts the same con- struction and effect as they would have here- tofore received in Equity. (8.) A mandamus or an injunction may be granted or a rnjuncHons receiver appointed 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 {s) ; and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just; and if an injunction is asked, either before, or at, or after the hearing, of any cause , or matter, to prevent any threatened or appre- hended waste or trespass, such injunction may be granted, if the Court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title (t) or otherwise, or (if out of posses- sion) does or does not claim a right to do the act sought to be restrained under any colour of title ; and whether the estates claimed by both or by either of the parties are legal or equitable. (9.) In any cause or proceeding for damages arising namagesty out of a collision between two ships, if both collisions at . ships shall be found to have been in fault, the rules hitherto in force in the Court of Admiralty, so far as they have been at variance with the rules in force in the Courts of Common Law, shall prevail. (10.) In questions relating to the custody and education intants. of infants the Rules of Equity shall prevail (m). (11.) Generally in all matters not hereinbefore par- casosot ticularly mentioned, in which there is any con- ^,"merated. («) See p. 156, ante. \t) Formerly, where an action for ejectment would lie, an injunction would be refused (pp. 163, 166, ante). ( u) See p. 69, ante. 210 APPENDIX. flict or variance between the Rules of Equity and the Eules of the Common Law with reference to the same matter, the Rules of Equity shall prevail. Abolition of tenus. Vacations. Part III. Sittings and Distribution of Business. 26. The division of the legal year into terms shall be abolished so far as relates to the administration of justice ; and there shall no longer be terms applicable to any sitting or business of the High Court of Justice, or of the Court of Appeal, or of any commissioners to whom any jurisdiction may be assigned under this Act; but in all other cases in which, under the law now existing, the terms into which the legal year is divided are used as a measure for determining the time at or within which any act is required to be done, the same may continue to be referred to for the same or the like purpose, unless and until provision is otherwise made by any lawful authority. Subject to Rules of Court, the High Court of Justice and the Court of Appeal, and the judges thereof respec- tively, or any such commissioners as aforesaid, shall have power to sit and act, at any time, and at any place, for the transaction of any part of the business of such Courts respectively, or of such judges or commissioners, or for the discharge of any duty which by any Act of Parliament, or otherwise, is required to be discharged during or after term. 27. Her Majesty in Council may from time to time, upon any report or recommendation of the judges by whose advice her Majesty is hereinafter authorized to make rules before the commencement of this Act, and after the commencement of this Act upon any report or recommendation of the council of judges of the Supreme Court hereinafter mentioned, with the consent of the Lord Chancellor, make, revoke, or modify, orders regu- lating the vacations to be observed by the High Court of Justice and the High Court of Appeal, and in the offices of the said Courts respectively ; and any Order in Council made pursuant to this section shall, so long as it continues APPENDIX. 211 in force, be of the same eflfect as if it were contained in this Act ; and Rules of Court may be made for carrying the same into effect in the same manner as if such Order in Council were part of this Act. In the meantime, and subject thereto, the said vacations shall be fixed in tlie same manner, and by the same authority, as if this Act had not passed. This section shall come into opei'ation immediately upon the passing of this Act. 28. Provision sljall be made by Rules of Court for the sittings in hearing, in London or Middlesex, during vacation by ™™"™- judges of the High Court of Justice and the Court of Appeal respectively, of all such applications as may re- quire to be immediately or promptly heard. 29. Pier Majesty, by commission of assize or by any Jurisaictioni other commission, either general or special, may assign High^Couvt to any judge or judges of the High Court of Justice or on circuit. other persons usually named in commissions of assize, the duty of trying and determining within any place or dis- trict specially fixed for that purpose by such commission, any causes or matters, or any questions or issues of fact or of law, or partly of fact and partly of law, in any cause or matter depending in the said High Court, or the exer- cise of any civil or criminal jurisdiction capable of being exercised by the said High Court ; and any commission so granted by her Majesty shall be of the same validity as if it were enacted iu the body of this Act ; and any commissioner or commissioners appointed in pursuance of this section shall, when engaged in the exercise of any jurisdiction assigned to him or them in pursuance of this Act, be deemed to constitute a Court of the said High Court of Justice ; and, subject to any resti'ictions or con- ditions imposed by Rules of Court and to the power of transfer, any party to any cause or matter involving the trial of a question or issue of fact, or partly of fact and partly of law, may, with the leave of the judge or judges to whom or to whose division the cause or matter is assigned, require the question or issue to be tried and de- termined by a commissioner or commissioners as aforesaid, or at sittings to be held in Middlesex or London as herein- after in this Act mentioned, and such question or issue shall be tried and determined accordingly. A cause or matter not involving any question or issue 212 APPENDIX. Sittings for ti'ial by jury in London and Middle- sex. divisions of tlie HiKh Court of J ustice. of fact may be tried and determined in like manner with the consent of all the parties thereto. 30. Subject to Rules of Court, sittings for the trial by- jury of causes and questions or issues of fact shall be held in Middlesex and London, and such sittings shall, so far as is reasonably practicable, and subject to vaca- tions, be held continuously throughout the year by as many judges as the business to be disposed of may render necessary. Any judge of the High Court of Justice sitting for the trial of causes and issues in Middlesex or London, at any place heretofore accustomed, or to be hereafter determined by Rules of Court, shall be deemed to constitute a Court of the said High Court of Justice. 31. For the more convenient despatch of business in the said High Court of Justice (but not so as to prevent any judge from sitting -whenever required in any Divi- sional Court, or for any judge of a different division from his own), there shall be in the said High Court five divisions consisting of such number of judges respectively as hereinafter mentioned. Such five divisions shall re- spectively include, immediately on the commencement of this Act, the several judges following; (that is to say,) (1.) One division shall consist of the following judges ; (that is to say,) The Lord Chancellor, who shall be President thereof, the Master of the Rolls, and the Vice-Chancellors of the Court of Chan- cery, or such of them as shall not be appointed ordinary judges of the Court of Appeal : (2.) One other division shall consist of the following judges; (that is to say,) The Lord Chief Justice of England, who shall be President thereof, and such of the other judges of the Court of Queen's Bench as shall not be appointed ordinary j udges of the Court of Appeal : (3.) One other division shall consist of the following judges ; (that is to say,) The Lord Chief Justice of the Common Pleas, who shall be President thereof, and such of the other judges of the Court of Common Pleas as shall not be ap- pointed ordinary judges of the Court of Appeal: (4.) One other division shall consist of the following judges ; (that is to say,) The Lord Chief Baron APPENDIX. 213 of the Exchequer, who shall be President thereof, and such of the other Barons of the Court of Exchequer as shall not be appointed ordinary judges of the Court of Appeal : (5.) One other division shall consist of two judges who, immediately on the commencement of this Act, shall be the existing judge of the Court of Probate and of the Court for Divorce and Matrimonial Causes and the existing judge of the High Court of Admiralty, unless either of them is appointed an ordinary judge to the Court of Appeal. The existing judge of the Court of Probate shall (unless so appointed) be the president of the said division, and subject thereto the senior judge of the said division, according to the order of precedence under this Act, shall be president. The said five divisions shall be called respectively the Chancery Division, the Queen's Bench Division, the Common Pleas Division, the Exchequer Division, ^nd the Probate, Divorce, and Admiralty Division. Any deficiency of the number of five judges for con- stituting, in manner aforesaid, immediately on the com- mencement of this Act, any one or more of the Queen's Bench, Common Pleas, and Exchequer divisions, may be supplied by the appointment, under her Majesty's royal sign manual, either before or after the time fixed for the commencement of this Act, of one of the puisne justices or junior barons of any Superior Court of Com- mon Law from which no judge may be so appointed as aforesaid to the Court of Appeal, to be a judge of any division in which such deficiency would otherwise exist. And any deficiency ofthe number of three vice-chancellors or of the two judges of the Probate and Admiralty divisions at the time of the commencement of this Act may be supplied by the appointment of a new judge in his place in the same manner as if a vacancy in such office had occurred after the commencement of this Act. Any judge of any of the said divisions may be trans- ferred by her Majesty, under her royal sign manual, from one to another of the said divisions. Upon any vacancy happening among the judges ofthe 214 APPENDIX. Power to alter divisions by Order in Council. Bules of Court to provide for distribution of business. said High Court, the judge appointed to fill such vacancy- shall, subject to the provisions of this Act, and to any Rules of Court which may be made pursuant thereto, become a member of the same division to which the judge whose place has become vacant belonged. 32. Her Majesty in Council may from time to time, upon any report or recommendation of the Council of Judges of the Supreme Court hereinafter mentioned, order that any reduction or increase in the number of divisions of the High Court of Justice, or in the number of the judges of the said High Court who may be attached to any such division, may, pursuant to such report or recommendation, be carried into effect ; and may give all such further directions as may be necessary or proper for that purpose ; and such order may provide for the abolition on vacancy of the distinction of the offices of any of the following judges, namely, the Chief Justice of England, the Master of the Rolls, the Chief Justice of the Common Pleas, and the Chief Baron of the Exchequer, which may be reduced, and of the salaries, pensions, and patronage attached to such offices, from the offices of the other judges of the High Court of Justice, notwithstanding anything in this Act relating to the continuance of such offices, salaries, pensions, and patronage ; but no such Order of her Majesty in Council shall come into operation until the same shall have been laid before each House of Parliament for thirty days on which that House shall have sat, nor if, within such period of thirty days, an address is presented to her Majesty by either House of Parliament, praying that the same may not come into operation. Any such order, in respect whereof no such address shall have been presented to her Majesty, shall, from and after the expiration of such period of thirty days, be of the same force and effect as if it had been herein expressly enacted : provided always, that the total number of the judges of the Supreme Court shaU not be reduced or increased by any such order. 33. All causes and matters which may be commenced in, or which shall be transferred by this Act to, the High Court of Justice, shall be distributed among the several divisions and judges of the said High Court, in such manner as may from time to time be detennined by any APPENDIX. 215 Eules of Court, or orders of transfer, to be made under the authority of this Act ; and in the meantime and sub- ject thereto, all such causes and matters shall be assigned to the said divisions respectively, in the manner herein- after provided. Every document by vrhich any cause or matter may be commenced in the said High Court shall be marked with the name of the division, or with the name of the judge, to which or to whom the same is as- signed. 34. There shall be assigned (subject as aforesaid) to Assignment the Chancery Division of the said Court : b!,s"Sl",o (1.) All causes and matters pending in the Court of particular Chancery at the commencement of this Act : H^RhOourt, (2.) All causes and matters to be commenced after the subject to commencement of this Act, under any Act of Parliament by which exclusive jurisdiction, in respect to such causes or matters, has been given to the Court of Chancery (x), or to any judges or judge thereof respectively, except appeals from County Courts (y) : (3.) All causes and matters for any of the following purposes : The administration of the estates of deceased persons (z) ; The dissolution of partnerships, or the taking of partnership or other accounts (a); The redemption or foreclosure of mort- gages (6); The raising of portions (c), or other charges on land ; (x) e. g., the Trustee Act, 1850 (13 & 14 Vict. c. 60); Infants' Settlement Act (18 & 19 Vict. c. 43); Leases and Bales of Settled Estates Acts (19 & 20 Vict. c. 120; 21 & 22 Vict. c. 77; 27 & 28 Vict. c. 45); Lord St. Leonards' Act, 1859 (22 & 23 Vict. c. 35); Lord St. Leonards' Act, I860 (23 & 24 Vict. c. 14); Lord Cran- worth's Act (23 & 24 Vict. c. 145); Custody of Infants' Act (36 & 37 Vict. u. 12) and others set out in Morgan's Chancery Acts and Orders. (■>/) See sect. 45, pout. (i) See pp. S8-WZ, ante. (a) See pp. 104, 105, ante. (b) See p. 104 and note. (c) See p. 100, ante, as to the leaning of Equity against double portions. 216 APPEJfUIX. The sale and distribution of the proceeds of property subject to any lien or charge (d) ; The execution of trusts, charitable or pri- vate ( e) ; The rectification, or setting aside, or cancella- tion of deeds or other -written instru- ments (J"); The specific performance of contracts between vendors and purchasers of real estates, in- cluding contracts for leases (_9); The partition or sale of real estates (A); The wardship of infants and the care of in- fants' estates (i). There shall be assigned (subject as aforesaid) to the Queen's Bench division of the said Court : (1.) All causes and matters, civil and criminal, pend- ing in the Court of Queen's Bench at the com- mencement of this Act: (2.) All causes and matters, civil and criminal, which would have been within the exclusive cogni- zance of the Court of Queen's Bench in the exercise of its original jurisdiction if this Act had not passed. There shall be assigned (subject as aforesaid) to the Common Pleas division of the said Court : (1.) All causes and matters pending in the Court of Common Pleas at Westminste]-, the Court of Common Pleas at Lancaster, and the Court of Pleas at Durham, respectively, at the com- mencement of this Act: (2.) All causes and matters which would have been within the exclusive cognizance of the Court of Common Pleas at Westminster if this Act had not passed. (d) See p. 97 as to vendor's lien. (e) See Chap. II., pp. 23—41. (/) See Chap. VII., pp. 133— 1.52. (I/) See Chap. VI., pp. 108—132. (A) See pp. 20, lOf!. (t) See pp. 69—102. APPENDIX. 217 There shall be assigned (subject as aforesaid) to the Exchequer division of the said Court: (1.) All causes and matters pending in the Court of Exchequer at the commencement of this Act : (2.) All causes and matters which would have been within the exclusive cognizance of the Court of Exchequer, either as a Court of Revenue or as a common Law Court, if this Act had not passed : (3.) All matters pending in the London Court of Bank- ruptcy (k) at the commencement of this Act : (4.) All matters to be commenced after the commence- ment of this Act under any Act of Parliament by which exclusive jurisdiction in respect to such matters has been given to the London Court of Bankruptcy. There shall be assigned (subject as aforesaid) to the Probate, Divorce, and Admiralty division of the said High Court : (L) All causes and matters pending in the Court of Probate, or in the Court for Divorce and Matrimonial Causes, or in the High Court of Admiralty, at the commencement of this Act : (2.) All causes and matters which would have been within the exclusive cognizance of the Court of Probate, or the Court for Divorce and Matri- monial Causes, or of the High Court of Admi- ralty, if this Act had not passed. 35. Subject to any rules of Court, and to the provisions Option for hereinbefore contained, and to the power of transfer, ("ubjeS'tl) every person by whom any cause or matter may be com- ™'^) '? menced in the said High Court of Justice shall assign wimtdivi- such cause or matter to one of the divisions of the said 1]°" '^^ ^"^ High Court, not being the Probate, Divorce, and Admi- ralty divisions thereof, as he may think fit, by marking the document by which the same is commenced, with the name of such division, and giving notice thereof to the proper officer of the Court ; provided that all interlocutory and other steps and proceedings in or before the said High Court, in any cause or matter subsequent to the commencement thereof, shall be taken (subject to any (k) A clause in the Amendment Bill of 1874 proposed to abrogate this provision and to make a separate bankruptcy division. C. L sue. 218 APPENDIX. Power of transfer. Sittings in London and Middlesex and on circuits. rules of Court and to the power of transfer) in the divi- sion of the said High Court to which such cause or matter is for the time being attached ; provided also, that if any plaintiff or petitioner shall at any time assign his cause or matter to any division of the said High Court to which, according to the rules of Court or the provisions of this Act, the same ought not to be assigned, the Court, or any judge of such division, upon being informed thereof, may, on a summary application, at any stage of the cause or matter, direct the same to be transferred to the divi- sion of the said Court to which, according to such rules or provisions, the same ought to have been assigned, or he may, if he think it expedient so to do, retain the same in the division in which the same was commenced ; and all steps and proceedings whatsoever taken by the plain- tiff or petitioner, or by any other party in any such cause or matter, and all orders made therein by the Court or any judge thereof before any such transfer, shall be valid and effectual to all intents and purposes in the same manner as if the same respectively had been taken and made in the proper division of the said Court to which such cause or matter ought to have been assigned. 36. Any cause or matter may at any time, and at any stage thereof, and either with or without application from any of the parties thereto, be transferred by such authority and in such manner as rules of Court may direct, from one division or judge of the High Court of Justice to any other division or judge thereof, or may by the like authority be retained in the division in which the same was commenced, although such may not be the proper division to which the same cause or matter ought, in the first instance, to have been assigned. 37. Subject to any arrangements which may be from time to time made by mutual agreement between the judges of the said High Court, the sittings for trials by jury in London and Middlesex, and the sittings of judges of the said High Court under commissions of assize, oyer and terminer, and gaol delivery, shall be held by or before judges of the Queen's Bench, Common Pleas, or Exche- quer division of the said High Court ; provided that it shall be lawful for her Majesty, if she shall think fit, to include in any such commission any ordinary judge of APPENDIX.. 219 the Court of Appeal or any judge of the Chancery divi- sion to be appointed after the commencement of this Act, or any serjeant-at-law, or any of her Majesty's counsel learned in the law, who, for the purposes of such commis- sion, shall have all the power, authority, and jurisdiction of a judge of the said High Court. [Sect. 38 provides a rota of judges for election peti- tions.] 39. Any judge of the said High Court of Justice may. Powers of subject to any rules of Court, exercise in Court or in ™ag°s™or chambers, all or any part of the jurisdiction by this Act constituting vested in the said High Court, in all such causes and court?'™" matters, and in all such proceedings in any causes or matters, as before the passing of this Act might have been heard in Court or in chambers respectively, by a single judge of any of the Courts whose jurisdiction is hereby transferred to the said High Court, or as may be directed or authorized to be so heard by any rules of Court to be hereafter made. In all such cases, any judge sitting in Court shall be deemed to constitute a Court. 40. Such causes and matters as are not proper to be Divisional heard by a single judge shall be heard by Divisional J^i^hImi Courts of the said High Court of Justice, which shall court ot for that purpose exercise all or any part of the jurisdic- ■'"^'"^*- tion of the said High Court. Any number of such Divisional Courts may sit at the same time. A Divi- sional Court of the said High Court of Justice shall be constituted by two or three, and no more, of the judges thereof; and, except when through pressure of business or any other cause it may not conveniently be found practicable, shall be composed of three such judges. Every judge of the said High Court shall be qualified and empowered to sit in any of such Divisional Courts. The president of every such Divisional Court of the High Court of Justice shall be the senior judge of those present, according to the order of their precedence under this Act. 41. Subject to any rules of Court, and in the mean- p^^^t""?! time until such rules shall be made, all business belonging business of to the Queen's Bench, Common Pleas and Exchequer ^IH^^ divisions respectively of the said High Court, which, common according to the practice now existing in the Superior Ix^hequcr J n dlvisiona. 220 APPENDIX. distribution of business among tlie judges of the Chancery and Probate, Divorce, and Admii'alty divisions of the Higli Court. Courts of Common Law, would have been proper to be transacted or disposed of by the Court sitting in banc, if this Act had not passed, may be transacted and disposed of by Divisional Courts, which shall, as far as may be found practicable and convenient, include one or more judge or judges attached to the particular division of the said Court to which the cause or matter out of which such business arises has been assigned; and it shall be the duty of every judge of such last-mentioned division, and also of every other judge of the High Court who shall not for the time being be occupied in the transac- tion of any business specially assigned to him, or in the business of any other Divisional Court, to take part, if required, in the sittings of such Divisional Courts as may from time to time be necessaiy for the transaction of the business assigned to the said Queen's Bench, Common Pleas, and Exchequer divisions respectively; and all such arrangements as may be necessary or proper for that purpose, or for constituting or holding any Divi- sional Courts of the said High Court of Justice for any other purpose authorized by this Act, and also for the proper transaction of that part of the business of the said Queen's Bench, Common Pleas, and Exchequer divisions respectively, which ought to be transacted by one or more judges not sitting in a Divisional Court, shall be made from time to time under the direction and superin- tendence of the judges of the said High Court; and in case of difference among them, in such manner as a majority of the said judges, with the concurrence of the Lord Chief Justice of England, shall determine. 43. Subject to any rules of Court, and in the mean- time until such rules shall be made, all business arising out of any cause or matter assigned to the Chancery or Probate, Divorce and Admiralty division of the said High Court shall be transacted and disposed of in the first instance by one judge only, as has been heretofore accustomed in the Court of Chancery, the Court of Pro- bate, and for Divorce and Matrimonial Causes, and the High Court of Admiralty respectively; and every cause or matter which, at the commencement of this Act, may be depending in the Court of Chancery, the Court of Probate, and for Divorce and Matrimonial Causes, and APPENDIX. 221 the High Court of Admiralty respectively, shall (subject to the power of transfer) be assigned to the same judge in or to whose Court the same may have been depending or attached at the commencement of this Act; and every cause or matter which after the commencement of this Act may be commenced in the Chancery division of the said High Court shall be assigned to one of the judges thereof, by marking the same with the name of such of the said judges as the plaintiff or petitioner (subject to the power of transfer) may in his option think fit: pi'o- vided that (subject to any rules of Court, and to the power of transfer, and to the provisions of this Act as to trial of questions or issues by commissioners, or in Mid- dlesex or London), all causes and matters which, if this Act had not passed, would have been within the exclu- sive cognizance of the High Court of Admiralty, shall be assigned to the present judge of the said Admiralty Court during his continuance in office as a judge of the High Court. 43. Divisional Courts may be held for the transaction of any part of the business assigned to the said Chancery division, which the judge, to whom such business is assigned, with the concurrence of the president of the same division, deems proper to be heard by a Divisional Court. 44. Divisional Courts may be held for the transaction of any part of the business assigned to the Probate, Divorce and Admiralty division of the said High Court, which the judges of such division, with the concurrence of the president of the said High Court, deem proper to be heard by a Divisional Court. Any cause or matter assigned to the said Probate, Divorce, and Admiralty division may be heard at the request of the president of such division, with the concurrence of the president of the said High Court, by any other judge of the said High Court. 45. All appeals from petty or quarter sessions, from a County Court (I), or from any other inferior Court, which might before the passing of this Act have been (I) See 28 & 29 Vict. c. 99, s. 18, for the present system of appeal from County Courts. Divisional Courts for business of tlie Cliancery division. Divisional Courts for business belonfrinff to the division. Appeals frt. m inferior Courts to be determined by Divisional Court*. 222 APPENDIX. Ca-ses and points may he reserved for or directed to be argued before T)i visional Courts. Provision for Crown cases reserved. brought to any Court or judge whose jurisdiction is by this Act transferred to the High Court of Justice, may be heard and determined by Divisional Courts of the said High Court of Justice, consisting respectively of such of the judges thereof as may from time to time be assigned for that purpose, pursuant to rules of Court, or (subject to rules of Court) as may be so assigned according to arrangements made for the purpose by the judges of the said High Court. The determination of such appeals respectively by such Divisional Courts shall be final unless special leave to appeal from the same to the Court of Appeal shall be given by the Divisional Court by which any such appeal from an inferior Court shall have been heard. 46. Subject to any rules of Court, any judge of the said High Court, sitting in the exercise of its jurisdiction elsewhere than in a Divisional Court, may reserve any case, or any point in a case, for the consideration of a Divisional Court, or may direct any case, or point in a case, to be argued before a Divisional Court ; and any Divisional Court of the said High Court shall have power to hear and determine any such case or point so reserved or so directed to be argued. 47. The jurisdiction and authorities in relation to ques- tions of law arising in criminal trials which are now vested in the justices of either bench and the barons of the Exchequer by the Act of the session of the eleventh and twelfth years of the reign of her present Majesty, chapter seventy-eight, intituled " An Act for the further amend- ment of the administration of the Criminal Law," or any Act amending the same, shall and may be exercised after the commencement of this Act by the judges of the High Court of Justice, or five of them at the least, of whom the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, or one of such chiefs at least, shall be part. The determination of any such question by the judges of the said High Court iu manner aforesaid shall be final and without appeal ; and no appeal shall lie from any judgment of the said High Court in any criminal cause or matter, save for some error of law apparent upon the record, as to which no question shall have been APPENDIX. 223 reserved for the consideration of the said judges under the said Act of the eleventh and twelfth years of her Majesty's reign. 48. Every motion for a new trial of any cause or Motiorsfnr matter on which a verdict has been found by a jury, or behem'ii'by'' by a judge without a jury, and every motion in arrest of nivisionai judgment, or to enter judgment non obstante veredicto, or to enter a verdict for plaintiif or defendant, or to enter a nonsuit, or to reduce damages, shall be heard before a Divisional Court ; and no appeal shall lie from any judgment founded upon and applying any verdict unless a motion has been made or other proceeding taken before a Divisional Court to set aside or reverse such verdict, or the judgment, if any, founded thereon, in which case an appeal shall lie to the Court of Appeal from the decision of the Divisional Court upon such motion or other pro- ceeding. 49. No order made by the High Court of Justice or wimt orders any judge thereof, by the consent of parties, or as to sut''j,"t"[^,''" costs only, which by law are left to the discretion of the appeal. Court, shall be subject to any appeal, except by leave of the Court or judge making such order (m). 50. Every order made by a judge of the said High Astoais- Court in chambers, except orders made in the exercise orteSmade of such discretion as aforesaid, may be set aside or dis- in chambers. charged upon notice by any Divisional Court, or by the judge sitting in Court, according to the course and practice of the division of the High Court to which the particular cause or matter in which such order is made may be assigned ; and no appeal shall lie from any such order, to set aside or discharge which no such motion has been made, unless by special leave of the judge by whom such order was made, or of the Court of Appeal (n). 61. Upon the request of the Lord Chancellor, it shall Provision for be lawful for any judge of the Court of Appeal, who vacancy °in may consent so to do, to sit and act as a judge of the theoiiiceof said High Court or to perform any other official or (m) See, for the present practice on these points, Morgan's Chancery Acts and Orders, s. 21, note (>). (») See, for the present practice of appealing from orders made in chambers, ibid. p. 150. 224 APPENDIX. Power of a single judge in Court of Appeal. ministerial acts for or on behalf of any judge absent' from illness or any other cause, or in the place of any judge whose office has become vacant, or as an adaitional judge of any division ; and while so sitting and acting any such judge of the Court of Appeal shall have all the power and authority of a judge of the said High Court. 52. In any cause or matter pending before the Court of Appeal, any direction incidental thereto, not involving the decision of the appeal, may be given by a single judge of the Court of Appeal; and a single judge of the Court of Appeal may at any time during vacation make any interim order to prevent prejudice to the claims of any parties pending an appeal as he may think fit; but every such order made by a single judge may be discharged or varied by the Court of Appeal or a Divisional Court thereof. [Sects. 53 — 55, relate to the Divisional Courts of Court of Appeal, and the arrangements for the business of the Court of Appeal, and for hearing appeals trans- ferred from the judicial committee of the privy council, which it is proposed to amend.} Eeferences atiU usse&soi^. Pakt IV. Trial and Procedure. 56. Subject to any rules of Court and to such right as may now exist to have particular cases submitted to the verdict of a jury, any question arising in any cause or matter (other than a criminal proceeding by the Crown) before the High Court of Justice or before the Court of Appeal, may be referred by the Court or by any Divi- sional Court or judge before whom such cause or matter may be pending, for inquiry and report to any official or special referee, and the report of any such referee may be adopted wholly or partially by the Court, and may (if so adopted) be enforced as a judgment by the Court. The High Court or the Court of Appeal may also, in any such cause or matter as aforesaid in which it may think it expedient so to do, call in the aid of one or more assessors specially qualified, and try and hear such cause APPENDIX. 225 or matter wliolly or partially with the assistance of such assessors. The remuneration, if any, to be paid to such special referees or assessors shall be determined by the Court. 57. In any cause or matter (other than a criminal pro- Power to ceeding by the Crown) before the said High Court in before"""* which all parties interested who are under no disability referees. consent thereto, and also without such consent in any such cause or matter requiring any prolonged examina- tion of documents or accounts, or any scientific or local investigation which cannot, in the opinion of the Court or a judge, conveniently be made before a jury, or conducted by the Court through its other ordinary officers, the Court or a judge may at any time, on such terms as may be thought proper, order any question or issue of fact or any question of account arising therein to be tried either before an official referee, to be appointed as hereinafter provided, or before a special referee to be agreed on between the parties ; and any such special referee so agreed on shall have the same powers and duties and proceed in the same manner as an official referee. All such trials before referees shall be conducted in such manner as may be prescribed by rules of Court, and subject thereto in such manner as the Court or judge ordering the same shall direct. 58. In all cases of any reference to or trial by referees Poiver of under this Act the referees shall be deemed to be officers effect of °t"eir of the Court, and shall have such authority for the pur- findings. pose of such reference or trial as shall be prescribed by rules of Court or (subject to such rules) by the Court or judge ordering such reference or trial ; and the report of any referee upon any question of fact on any such trial shall (unless set aside by the Court) be equivalent to the verdict of a jury. 59. With respect to all such proceedings before re- Powers of ferees and their reports, the Court or such judge as respMtto'' aforesaid shall have, in addition to any other powers, proceedings the same or the like powers as are given to any Court referees. whose jurisdiction is hereby transferred to the said High Court with respect to references to arbitration and pro- ceedings before arbitrators and their awards respectively, by the Common Law Procedure Act, 1854, l5 226 APPENDIX. Iler Majesty may establish district registries in tlie country for tlie Supreme Court. Proceedings to be taken in district registries. Power for Court to remove proceedings from district registries. 60. And whereas it is expedient to facilitate the prosecution in country districts of such proceedings as may be more speedily, cheaply, and conveniently carried on therein, it shall be lawful for her Majesty, by Order in Council, from time to time to direct that there shall be district registrars in such places as shall be in such order mentioned for districts to be thereby defined, from which writs of summons for the commencement of actions in the High Court of Justice may be issued, and in which such proceedings may be taken and recorded as are hereinafter mentioned. [The remainder of sect. 60, and sects. 61 — 63, pro- Tide for the appointment of district registrars, the seals of district registries, the powers of district registrars, and the fees to be taken by district registrars.] 64. Subject to the rules of Court in force for the time being, writs of summons for the commencement of actions in the High Court of Justice shall be issued by the district registrars when thereunto required ; and unless any order to the contrary shall be made by the High Court of Justice, or by any judge thereof, all such further proceedings, including proceedings for the arrest or detention of a ship, her tackle, apparel, furniture, cargo, or freight, as may and ought to be taken by the respectire parties to such action in the said High Court down to and including entry for trial, or (if the plaintiff is entitled to sign final judgment or to obtain an order for an account by reason of the non-appearance of the defendant) down to and including final judgment, or an order for an account, may be taken before the district registrar, and recorded in the district registry, in such manner as may be prescribed by rules of Court; and all such other proceedings in any such action as may be prescribed by rules of Court shall be taken and if neces- sary may be recorded in the same district registry. 65. Any party to an action in which a writ of sum- mons shall have been issued from any such district registry shall be at liberty at any time to apply, in such manner as shall be prescribed by rules of Court, to the said High Court, or to a judge in chambers of the divi- sion of the said High Court to which the action may be assigned, to remove the proceedings from such district APPENDIX. 227 registry into the proper office of the said High Court ; and the Court or judge may, if it be thought fit, grant such application, and in such case the proceedings and such original documents, if any, as may be filed therein shall upon receipt of such order be transmitted by the district registrar to the proper office of the said High Court, and the said action shall thenceforth proceed in the said High Court in the same manner as if it had been originally commenced by a writ of summons issued out of the proper office in London ; or the Court or judge, if it be thought right, may thereupon direct that the proceed- ings may continue to be taken in such district registry. 66. It shall be lawful for the Court, or any judge of Accounts ami the division to which any cause or matter pending in the be'referre'™'' said High Court is assigned, if it shall be thought fit, to todistiict order that any books or documents may be produced, or ''^sistmrs. any accounts taken or inquiries made, in the office of or by any such district registrar as aforesaid ; and in any such case the district registrar shall proceed to carry all such directions into efiect in the manner prescribed ; and in any case in which any such accounts or inquiries shall have been directed to be taken or made by any district registrar, the report in writing of such district registrar as to the result of such accounts or inquiries may be acted upon by the Court, as to the Court shall seem fit. 67. The provisions contained in the fifth, seventh, so & 3i vict. eighth, and tenth sections of the County Courts Acts, ^] g^aAd'in' 1867, shall apply to all actions commenced or pending in to extend to the said High Court of Justice in which any relief is High court. sought which can be given in a County Court. 68. Subject to the provisions of this Act, her Majesty Rules of may, at any time before the commencement of this Act, ^r'made'by by and with the advice of the Lord Chancellor, the Lord order in Chief Justice of England, and the other judges of the hefore'com- several Courts intended to be united and consolidated by mencement this Act, or of the greater number of them (of whom the Lord Chancellor and the Lord Chief Justice of England shall be two), cause to be prepared rules, in this Act referred to as Rules of Court, providing as follows : (1.) For the regulation of the sittings of the High Court of Justice and the Court of Appeal, and of any Divisional or other Courts thereof 228 APPENDIX. Rules to be laid before Parliament, and may be annulled on address from either House. Kules in sclledule to regulate procedure till changed by other rules after commence- uieiit of Act. respectively, and of the judges of the said High Court sitting in chambers ; (2.) For the regulation of circuits, including the times and places at which they are to be holden and the business to be transacted thereat ; (3.) For the regulation of all matters consistent with or not expressly determined by the rules con- tained in the schedule hereto, which,, under and for the purposes of such last-mentioned rules, require to be, or conveniently may be defined or regulated by further rules of Court ; (4.) And, generally, for the regulation of any matters relating to the practice and procedure of the said Courts respectively, or to the duties of the officers thereof, or to the costs of proceedings therein, or to the conduct of civil or criminal business coming within the cognizance of the said Courts respectively, for which provision is not expressly made by this Act or by the rules contained in the schedule hereto. All rules of Court made in pursuance of this section shall be laid before each House of Parliament within forty days next after the same are made, if Parliament is then sitting, or if not, within forty days after the then next meeting of Parliament ; and if an address is pre- sented to her Majesty by either of the said Houses, within the next subsequent forty days on which the said House shall have sat, praying that any such rules may be annulled, her Majesty may thereupon by Order in Council iiDDul the same ; and the rules so annulled shall thence- forth become void and of no effect, but without prejudice to the validity of any proceedings which may in the meantime have been taken under the same. This section shall come into operation immediately on the passing of this Act. 69. The rules contained in the schedule to this Act (which shall be read and taken as part of this Act) shall come into operation immediately on the commencement of this Act, and, as to all matters to which they extend, shall thenceforth regulate the proceedings in the High Court of Justice and the Court of Appeal respectively, unless and until, by the authority hereinafter in that APPExrax. 229 'behalf provided, any of them may be altered or varied ; but such rules, and also all rules to be made before the commencement of this Act, as hereinbefore mentioned, shall for all the purposes of this Act be rules of Court capable of being annulled or altered by the same authority by which any other rules of Court may be made, altered, or annulled after the commencement of this Act. 70. All rules and orders of Court vrhich shall be in nuiesot force in the Court of Probate, the Court for Divorce and nlvSw' Matrimonial Causes, the Admiralty Court, and the London Admiralty Court of Bankruptcy respectively at the time of the com- ruptS""''' mencement of this Act, except so far as they are hereby courts to iie expressly varied, shall remain and be in force in the High Court High Court of Justice and in the Court of Appeal respectively in the same manner in all respects as if they had been contained in the schedule to this Act until they shall respectively be altered or annulled by any rules of Court made after the commencement of this Act. 71. Subject to any rules of Court to be made under criminal and by virtue of this Act, the practice and pi-ocedure in si!ibjec"to' all criminal causes and matters whatsoever in the High lutnre rules, Court of Justice and in the Court of Appeal respectively, unaltered. including the practice and procedure with respect to Crown cases reserved, shall be the same as the practice and pro- cedure in similar causes and matters before the passing of this Act. 72. Nothing in this Act or in the schedule hereto, or Act not to in any rules of Court to be made by virtue hereof, save ofevMcilce as far as relates to the power of the Court for special or juries. reasons to allow depositions or affidavits to be read, shall affect the mode of giving evidence by the oral examination of witnesses in trials by jury, or the rules of evidence, or the law relating to jurymen or juries. 73. Save as by this Act, or by any rules of Court Savins of (whether contained in the schedule to this Act, or to be proced'freot made under the authority thereof), is or shall be other- courts when wise provided, all forms and methods of procedure which Sste'ut with at the commencement of this Act were in force in any of t^is Act or the Courts whose jurisdiction is hereby transferred to the said High Court, and to the said Court of Appeal respec- tively, under or by virtue of any law, custom, general orders, or rules whatsoever, and which are not inconsis- APPENDIX. tent with this Act or with any rules contained in the said schedule or to be made by virtue of this Act, may continue to be used and practised in the said High Court of Justice, and the said Court of Appeal respectively, in such and the like cases, and for such and the like pur- poses, as those to which they would have been applicable in the respective Courts of which the jurisdiction is so transferred, if this Act had not passed. 74. From and after the commencement of this Act, the Supreme Court may at any time, with the concurrence of a majority of the judges thereof present at any meeting for that purpose held (of which majority the Lord Chan- cellor shall be one), alter or annul any rules of Court for the time being in force, or make any new rules of Court, for the pui-pose of regulating all such matters of practice and procedure in the Supreme Court, or relating to the suitors or oflBcers of the said Court, or otherwise, as under the provisions of this Act are or may be regulated by rules of Court : provided, that any rule made in the exercise of this power, whether for altering or annulling any then existing rule, or for any other purpose, shall be laid before both Houses of Parliament, within the same time, and in the same manner and with the same effect in all respects, as is hereinbefore provided with respect to the said rules to be made before the commencement of this Act, and may be annulled and made void in the same manner as such last-mentioned rules. 75. A council of the judges of the Supreme Court, of which due notice shall be given to all the said judges, shall assemble once at least in every year, on such day or days as shall be fixed by the Lord Chancellor, with the concurrence of the Lord Chief Justice of England, for the purpose of considering the operation of this Act and of the rules of Court for the time being in force, and also the working of the several offices and the arrangements relative to the duties of the officers of the said Courts respectively, and of inquiring and examining into any defects which may appear to exist in the system of pro- cedure or the administration of the law in the said High Court of Justice or the said Court of Appeal, or in any other Court from which any appeal lies to the said High Court or any judge thereof, or to the said Court of APPENDIX. 231 Appeal : and they shall report annually to one of her Majesty's principal Secretaries of State what (if any) amendments or alterations it would in their judgment be expedient to make in this Act, or otherwise relating to the administration of justice, and what other provisions (if any) which cannot be carried into effect without the authority of parliament it would be expedient to make for the better administration of justice. Any extraordi- nary council of the said judges may also at any time be convened by the Lord Chancellor. 76. All Acts of Parliament relating to the several Courts Acta of andjudges, whose jurisdiction is hereby transferred to the fetotto™"* said High Court of Justice and the said Court of Appeal former respectively, or wherein any of such Courts or judges are reTd^'" ° mentioned or referred to, shall be construed and take effect, applying to so far as relates to anything done or to be done after the thia Act. commencement of this Act, as if the said High Court of Justice or the said Court of Appeal, and the judges thereof respectively, as the case may be, had been named therein instead of such Courts or judges whose jurisdic- tion is so transferred respectively ; and in all cases not hereby expressly provided for in which, under any such Act, the concurrence or the advice or consent of the judge or any judges, or of any number of the judges, of any one or more of the Courts whose jurisdiction is hereby transferred to the High Court of Justice is made necessary to the exercise of any power or authority capable of being exercised after the commencement of this Act, such power or authority may be exercised by and with the concurrence, advice or consent of the same or a like number of judges of the said High Court of Justice ; and all general and other commissions, issued under the Acts relating to the Central Criminal Court or otherwise, by virtue whereof any judges of any of the Courts whose jurisdiction is so transferred may, at the commencement of this Act, be empowered to try, hear or determine any causes or matters, criminal or civil, shall remain and be in full force and effect, unless and until they shall respectively be in due course of law revoked or altered. 232 APPENDIX. PoTi'ers ol commis- si imers to ad minis ter o&tha. Official referees to be appoiDted. Duties, ap- pointment, iini! removal of officers of Supreme Court. Part V. Officers and Offices. [Sect. 77 provides for the transfer of the existing staff of officers to the Supreme Court.] [Sect. 78 contains provisions as to the officers of the Courts of Pleas at Lancaster and Durham.] [Sects. 79 — 82 contain provisions as to the personal officers of future judges. As to compensation for aboli- tions of offices, &c. As to doubts as to the status of officers to be determined by rules of Court.] 82. Every person who at the commencement of this Act shall be authorized to administer oaths in any of the Courts whose jurisdiction is hereby transferred to the High Court of Justice shall be a commissioner to ad- minister oaths in all causes and matters whatsoever which may from time to time be depending in the said High Court or in the Court of Appeal. 83. There shall be attached to the Supreme Court per- manent officers, to be called official referees, for the trial of such questions as shall under the provisions of this Act be directed to be tried by such referees. The number and the qualifications of the persons to be so ap- pointed from time to time, and the tenure of their offices shall be determined by the Lord Chancellor, with the concurrence of the presidents of the divisions of the High Court of Justice, or a majority of them (of which majority the Lord Chief Justice of England shall be one), and with the sanction of the Treasury. Such official referees shall perform the duties entrusted to them in such places, whether in London or in the country, as may from time to time be directed or authorized by any order of the said High Court, or of the Court of Appeal ; and all proper and reasonable travelling expenses incurred by them in the discharge of their duties shall be paid by the Treasury out of moneys to be provided by Parliament. 84. Subject to the provisions in this Act contained with respect to existing officers of the Courts whose jurisdiction is hereby transferred to the Supreme Court, there shall be attached to the Supreme Court such officers APPENDIX. 233 as the Lord Chancellor, with the concurrence of the presidents of the divisions of the High Court of Justice, or the major part of them, of which majority the Xord Chief Justice of England shall he one, and with the sanc- tion of the Treasury, may from time to time determine. Such of the said several officers respectively as may be thought necessary or proper for the performance of any special duties, with respect either to the Supreme Court generally, or with respect to the High Court of Justice or the Court of Appeal, or with respect to any one of the divisions of the said High Court, or with respect to any particular judge or judges of either of the said Courts, may by the same authority, and with the like sanction as aforesaid, be attached to the said respective Courts, divi- sions, and judges accordingly. All officers assigned to perform duties with respect to the Supreme Court generally, or attached to the High Court of Justice or the Court of Appeal, and all commis- sioners to take oaths or affidavits in the Supreme Court, shall be appointed by the Lord Chancellor. All officers attached to the Chancery division of the said High Court, who have been heretofore appointed by the Master of the Eolls, shall continue, while so attached, to be appointed by the Master of the Eolls. All other officers attached to any division of the said High Court shall be appointed by the president of that division. All officers attached to any judge shall be appointed by the judge to whom they are attached. Any officer of the Supreme Court (other than such officers attached to the person of a judge as are hereinbe- fore declared to be removable by him at his pleasure), may be removed by the person having the right of ap- pointment to the office held by him, with the approval of the Lord Chancellor, for reasons to be assigned in the order of removal. The authority of the Supreme Coui-t over all or any of its officers, may be exercised in and by the said High Court and the said Court of Appeal respectively, and also in the case of officers attached to any division of the High Court by the president of such division, with re- spect to any duties to be discharged by them respectively. 234 APPENDIX. Solicitors and attor- neys. [Sect. 85 provides how the salaries and pensions ot oiBeers are to be determined.] [Sect. 86 relates to patronage not otherwise provided for.] 87. From and after the commencement of this Act all persons admitted as solicitors, attorneys, or proctors of or by law empowered to practise in any Court, the juris- diction of which is hereby transferred to the High Court of Justice or the Court of Appeal, shall be called solicitors of the Supreme Court, and shall be entitled to the same privileges and be subject to the same obligations, so far as circumstances will permit, as if this Act had not passed; and all persons who from time to time, if this Act had not passed, would have been entitled to be admitted as soli- citors, attorneys, or proctors of or been by law empowered to practise in any such Courts, shall be entitled to be admitted and to be called solicitors of the Supreme Court, and shall be admitted by the Master of the Eolls, and shall, as far as circumstances will permit, be entitled as such solicitors to the same privileges and be subject to the same obligations as if this Act had not passed. Any solicitors, attorneys, or proctors to whom this section applies shall be deemed to be officers of the Supreme Court ; and that Court, and the High Court of Justice, and the Court of Appeal respectively, ' or any division or judge thereof, may exercise the same juris- diction in respect of such solicitors or attorneys as any one of her Majesty's Superior Courts of Law or Equity might previously to the passing of this Act have exercised in respect of any solicitor or attorney admitted to practise therein. Power by Order in Council to confer juris- diction on inferior Courts. Paet VI. Jurisdiction of Inferior Courts. 88. It shall be lawful for her Majesty from time to time by Order in Council to confer on any inferior Court of civil jurisdiction, the same jurisdiction in Equity and in Admiralty respectively, as any County Court now has, or may hereafter have, and such jurisdiction, if and when conferred, shall be exercised in the manner by this Act directed. APPENDIX. 235 89. Every inferior Court which now has or which may powers of after the passing of this Act have jurisdiction in Equity, q^"^'°^ or at Law and in Equity, and in Admiralty respectively, havini; shall, as regards all causes of action within its jurisdic- famiJaUj? tion for the time being, have power to grant, and shall jurisdiction. grant in any proceeding before such Court, such relief, redress, or remedy, or combination of remedies, either absolute or conditional, and shall in every such proceed- ing give such and the like effect to every ground of defence or counter-claim, equitable or legal (subject to the provision next hereinafter contained), in as full and ample a manner as might and ought to be done in the like case by the High Court of Justice. 90. Where in any proceeding before any such inferior Counter- Court any defence or counter-claim of the defendant °nfe™or" involves matter beyond the jurisdiction of the Court, such courts, ana defence or counter-claim shall not affect the competence {terefrom. or the duty of the Court to dispose of the whole matter in controversy so far as relates to the demand of the plaintiff and the defence thereto, but no relief exceeding that which the Court has jurisdiction to administer shall be given to the defendant upon any such counter-claim : provided always, that in such case it shall be lawful for the High Court, or any division or judge thereof, if ii shall be thought fit, on the application of any party to the proceeding, to order that the whole proceeding be trans- fen'ed from such inferior Court to the High Court, or to any division thereof ; and in such case the record in such proceeding shall be transmitted by the registrar, or other proper officer, of the inferior Court to the said High Court ; and the same shall thenceforth be continued and prosecuted in the said High Court as if it had been originally commenced therein. 91. The several rules of law enacted and declared by Huies of this Act shall be in force and receive effect in all Courts X',°,tJr'"^ whatsoever in England, so far as the matters to which Courts. such rules relate shall be respectively cognizable by such Courts. 23G APPENDIX. Raving aa to Lord Chaacellor. Saving as to' Chancellor of Lancaster. Provisions as to Great Seal bein;? in commission. Provision as to com- nif.ssioiia in Counties Palatine, Past VII. Miscellaneous Provisions. [By sect. 92, certain books and papers are to be trans- ferred to the Supreme Court.] [Sect. 93 contains a saving as to circuits until new- commissions are issued.] 94. This Act, except so far as herein is expressly- directed, shall not affect the office or position of Lord Chancellor ; and the officers of the Lord Chancellor shall continue attached to him in the same manner as if this Act had not passed ; and all duties, -which any officer of the Court of Chancery may no-w be required to perform in aid of any duty whatsoever of the Lord Chancellor, may in like manner be required to be performed by such officer when transferred to the Supreme Court, and by his successors. 95. This Act, except so far as is herein expressly directed, shall not affect the offices, position, or functions of the Chancellor of the county palatine of Lancaster. [Sects. 96 and 97 contain savings as to Chancellor of the Exchequer and sheriffs, the lord treasurer and office of the receipt of Exchequer. 98. When the great seal is in commission, the Lords Commissioners shall represent the Lord Chancellor for the purposes of this Act, save that as to the presidency of the Court of Appeal, and the appointment or approval of officers, or the sanction to any order for the removal of officers, or any other act to which the concurrence or presence of the Lord Chancellor is hereby made neces- sary, the powers given to the Lord Chancellor by this Act may be exercised by the senior Lord Commissioner for the time being. 99. From and after the commencement of this Act, the counties palatine of Lancaster and Durham shall respectively c^ase to be counties palatine, so far as re- spects the issue of commissions of assize, or other like commissions, but not further or otherwise ; and all such commissions may be issued for the trial of all causes and matters within such counties respectively in the same manner in all respects as in any other counties of Eng- land and Wales. APPENDIX. 237 100. In the construction of this Act, unless there is intcrpreta- anything in the subject or context repugnant thereto, the several words hereinafter mentioned shall have, or include, the meanings following ; (that is to say,) " Lord Chancellor" shall include Lord Keeper of the Great Seal. " The High Court of Chancery" shall include the Lord Chancellor. "The Court of Appeal in Chancery" shall include the Lord Chancellor as a judge on rehearing or appeal. " London Court of Bankruptcy" shall include the chief judge in bankruptcy. "The Treasury" shall mean the Commissioners of her Majesty's Treasury for the time being, or any two of them. "Rules of Court" shall include forms. " Cause" shall include any action, suit or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by the crown. " Suit" shall include action. " Action" shall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by rules of Court, and shall not include a criminal proceeding by the Crown. " Plaintiff" shall include every person asking any relief (otherwise than by way of counter-claim as a de- fendant) against any other person by any form of proceeding, whether the same be taken by action, suit, petition, motion, summons or otherwise. "Petitioner" shall include every person making any application to the Court, either by petition, motion or summons, otherwise than as against any defen- dant. "Defendant" shall include every person served with any writ of summons or process, or served with notice of, or entitled to attend, any proceedings. " Party" shall include every person served with notice of or attending any proceeding, although not named on the record. "Matter" shall include every proceeding in the Court not in a cause. tion of terms. 238 APPENDIX. "Pleading" shall include any petition or summons, and also shall include the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant. " Judgment" shall include decree. "Order" shall include rule. "Oath" shall include solemn affirmation and statutory declaration. "Crown cases reserved" shall mean such questions of law reserved in criminal trials as are mentioned in the Act of the eleventh and twelfth years of her Majesty's reign, chapter seventy-eight. " Pension" shall include retirement and superannuation allowance. "Existing" shall mean existing at the time appointed for the commencement of this Act. SCHEDULE. EULES OF Pkocedtjre. Form of Action. Form of 1. AH actions which have hitherto been commenced ffi'rcourt ^7^ ^""^^ ''^ *^^ Superior Courts of Common Law at West- minster, or in the Court of Common Pleas at Lancaster, or in the Court of Pleas at Durham, and all suits which have hitherto been commenced by bill or information in the High Court of Chancery, or by a cause in rem or in personam in the High Court of Admiralty, or by citation or otherwise in the Court of Probate, shall be instituted in the High Court of Justice by a proceeding to be called an action. All other proceedings in and applications to the High Court may, subject to rules of Court, be taken and made in the same manner as they would have been taken and made in any Court in which any proceeding or applica- tion of the like kind could have been taken or made if this Act had not passed. APPENDIX. 239 Writ of Summons. Every action in the High Court shall be commenced Actions to by by a writ of summons, which shall be endorsed with a JJ,\™™J statement of the nature of the claim made, or of the relief ■writ. or remedy required in the action, and which shall specify the division of the High Court to which it is intended that the action should be assigned. 3. Forms of writs and of endorsements thereon, applic- Form of able to the several ordinary causes of action, shall be "'^'' prescribed by rules of Court, and any costs incurred by the use of any more prolix or other forms shall be borne by the party using the same, unless the Court shall otherwise direct 4. No service of writ shall be required when the de- Acceptance fendant, by his solicitor, agrees to accept service, and °""^^''=^- enters an appearance. 5. "When service is required the writ shall, wherever service of it is practicable, be served in the manner in which per- ^ sonal service (o) is now made, but if it be made to appear to the Court or to a judge that the plaintiff is from any cause unable to effect prompt personal service, the Court or judge may make such order for substituted (p) or other service, or for the substitution of notice for service, as may seem just. 6. Whenever it appears fit to the Court or to a judge service out in a case in which the cause of action has arisen within "unsdiction. the jurisdiction, or is properly cognizable against a defen- dant within the jurisdiction, that any person out of the jurisdiction of the Court should be served with the writ or other process of the Court, the Court or judge may order such service, or such notice in lieu of service, to be made or given in such manner and on such terms as may seem just(5'). 7. In all actions where the plaintiff seeks merely to Special en- recover a debt or liquidated demand in money, payable of par™"uars by the defendant, with or without interest, arising upon a of riebts or contract, express or implied, as, for instance, on a bill of demands. (o) See the present practice, Morgan's Chancery Acts and Orders, 417, 418. Cp) Ihid. 419. (?) Ihid. 424. 240 APPENDIX, See C. L. P. Act, 18M, ss. 25, 27. exchange, promissory note, cheque, or other simple con- tract debt, or on a bond or contract under seal for pay- ment of a liquidated amount of money, or on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt, or on a guaranty, ■whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, cheque, or note, or on a trust, the writ of summons may be specially endorsed with the particulars of the amount sought to be recovered, after giving credit for any payment or set-off. In case of non-appearance by the defendant where the writ of summons is so specially endorsed, the plaintiff may sign final judgment for any sum not exceeding the sum endorsed on the writ, together with interest at the rate specified, if any, to the date of the judgment, and a sum for costs, but it shall be lawful for the Court or a judge to set aside or vary such judgment upon such terms as may seem just. Where the defendant appears on a writ of summons so specially endorsed, the plaintiff may, on afiidavit verifying the cause of action, and swearing that in his belief there is no defence to the action, call on the defendant to show cause before the Court or a judge why the plaintiff should not be at liberty to sign final judgment for the amount so endorsed, together with interest, if any, and costg ; and the Court or judge may, unless tlie defendant, by affidavit or otherwise, satisfy the Court or judge that he has a good defence to the action on the merits, or disclose such facts as the Court or judge may think sufficient to entitle him to be permitted to defend the action, make an order empowering the plaintiff to sign judgment accordingly. Permission to defend the action may be granted to the defendant on such terms and conditions^ if any, as the judge or Court may think just. 8. In all cases of ordinary account, as, for instance, in otparSara ^^^ case of a partnership or executorship or ordinary in cases of trust account, where the plaintiff, in the first instance, desires to have an account taken, the writ of summons shall be endorsed with a claim that such account be taken. In default of appearance on such summons, and after Special en- doraeinent APPENDIX. 241 appearance unless the defendant, by affidavit or otherwise, satisfy the Court or a judge that there is some preliminary question to be tried, an order for the account claimed, with aU directions now usual in the Court of Chancery in. similar cases, shall be forthwith made. Parties. 9. No action shall be defeated by reason of the mis- Misjoinder or joinder of parties, and the Court may in every action "f'parties?' deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or a judge may, at any stage of the proceedings, either upon or without the application of either party, in the manner prescribed by rules of Court, and on such terms as may appear to the Court or a judge to be just, order that the name or names of any party or parties, virhether as plaintiffs or as defendants, improperly joined be struck out, and that the name or names of any party or parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the ques- tions involved in the action, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent thereto. All parties whose names are so added as defendants shall be served with a summons or notice in such manner as may be prescribed by rules of Court or by any special order, and the proceedings as against them shall be deemed to have begun only on the service of such summons or notice. 10. Where there are numerous parties having the same uepresenta- interest in one action, one or more of such parties may partis sue or be sued, or may be authorized by the Court to having same defend in such action, on behalf or for the benefit of all '°*"°"'- parties so interested (r). 11. Any two or more persons claiming or being liable as co-partners may sue or be sued in the name of their respective firms, if any ; and any party to an action may (r) See for this practice 15 & 16 Vict. c. 86, s. 42; Morgan's Chancery Acts and Orders, 195 — 199. C. M 242 APPENDIX. Power to dpterraine questions u3 against third parties. I'rovision for case of doubt as to proper parties. Trustees, executors. Actinns hy ■WDincu and iutauls. in such case apply by summons to a judge in chambers for a statement of the names of the persons who are co- partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the judge may direct. 12. Where a defendant is or claims to be entitled to contribution or indemnity, or any other remedy or relief over against any other person, or where from any other cause it appears to the Court or a judge' that a question in the action should be determined not only as between^ the plaintiff and defendant, but as between the plaintiff defendant, and any other person, or between any or either- of them, the Court or a judge may, on notice being given to such last-mentioned person, in such manner and form as may be prescribed by rules of Court, make such order as may he proper for having the question so determined. 13. Where in any action, whether founded upon con- tract or otherwise, the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as may be prescribed by rules of Court, or by any special order, join two or more defendants, to the intent that in such action the question as to which, if any, of the defendants is liable, and to what extent, may be deter- mined as between all parties to the action. 14. Trustees, executors, and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives,, without joining any of the parties beneficially interested in the trust or estate, and shall be considered as repre- senting such parties in the action ; but the Coui-t or' a judge may, at any stage of the proceedings, order any of such parties to be made parties to the action, either in addition to or in lieu of the previously-existing parties thereto (s). 15. Married women and infants may respectively su& as plaintiffs by their next friends, in the manner practised in the Court of Chancery before the passing of this Act ;. and infants may, in like manner, defend any action by their guardians appointed for that purpose. Married women may also, by the leave of the Court or a judge,. («) See Mocgati, 104, 197, 245. APPENDIX. 243 suo or defend without their husbands and without a next friend, on giving such security (if any) for costs as the Court or a judge may require (t). 16. The plaintiff may, at his option, join as parties to Parties the same action all or any of the persons severally, or rreTeverar jointly and severally, liable on any one contract, including liabilities on parties to bills of exchange and promissory notes (m). contra™ 17. An action shall not become abated by reason of the Abatement. marriage, death or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite. In case of the marriage, death, or bankruptcy, or devolution of estate by operation of law, of any party to an action, the Court or a judge may, if it be deemed necessaiy for the complete settlement of all the questions involved in the action, order that the husband, personal representative, trustee, or other successor in interest, if any, of such party be made a party to the action, or be served with notice thereof in such manner and form as may be prescribed by rules of Court, and on such terms as the Court or judge shall think just, and shall make such order for the disposal of the action as may be just. In case of an assignment, creation, or devolution of any estate or title pendente lite, the action may be continued by or against the person to or upon whom such estate or title has come or devolved. Pleadings. 18. The following rules of pleading shall be substituted Form of for those heretofore used in the High Court of Chancery Pi'=^''"'ss- and in the Courts of Common Law, Admiralty and Probate. Unless the defendant at the time of his appearance shall state that he does not require the delivery of a statement of complaint, the plaintiff shall within such time and in such manner as shall be prescribed by rules of Court, file and deliver to the defendant after his (i) See Morgan's Chancery Acts and Orders, 166, note (t). (m) See Consol. Ord. Vn., Kule 2, Morgan, 399. M 2 244 APPENDIX. Power io settle issues. claims by delciidaut. appearance a ( printed) {x) statement of his complaint and of the relief or remedy to which he claims to be entitled. The defendant shall within such time and in such manner as aforesaid file and deliver to the plaintiff a ( printed) statement of his defence, set-off or counter-claim (if any), and the plaintiff shall in like manner file and deliver a- {printed) statement of his reply (if any) to such defence,, set-off or counter-claim. Such statements shall be as brief as the nature of the case will admit, and the Court in adjusting the costs of the action shall inquire at the- instance of any party into any unnecessary prolixity and order the costs occasioned by such prolixity to be borne- by the party chargeable with the same. A demurrer to any statement may be filed in such manner and form as may be prescribed by rules of Court (y). The Court or a judge may, at any stage of the pro- ceedings, allow either party to alter {z) his statement of claim or defence or reply, or may order to be struck out or amended any matter in such statements respectively which may be scandalous (a), or which may tend to pre- judice, embarrass or delay the fair trial of the action, and all such amendments shall be made as may be necessary for the purpose of determining the real questions or question in controversy between the parties. 19. "Where in any action it appears to a judge that the statement of claim or defence or reply does not suffi- ciently disclose the issues of fact in dispute between the parties, he may direct the parties to prepare issues, and such issues shall, if the parties differ, be settled by the judge. 20. A defendant may set-off, or set up, by way of counter-claim against the claims of the plaintiff, any right or claim, whether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim shalL have the same effect as a statement of claim in a cross (») It Is intended that pleadings shall only be required to be printed of more than three folios of seventy-two Tvords each. (y) See ante, p. 189. (z) See ante, p. 177. (a) See Morgan's Chancery Acts and Orders. 461; Euberv v. Grant, L. E., 13 Eq. 443; Christie v. Christie, L. E., 8 Ch. 499". APPENDIX. 245 action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the Court or a judge may, on the application of the plaintifiF before trial, if in the opinion of the Court or judge such set-off or counter-claim cannot •be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defend- ant to avail himself thereof. 21. Where in any action a set-off or counter-claim is Power to established as a defence against the plaintiff's claim, the mint'for"' Court may, if the balance is in favour of the defendant, aefendant give judgment for the defendant for such balance, or may under otherwise adjudge to the defendant such relief as he may ^"iJI"^"'' be entitled to upon the merits of the case. 22. Subject to any rules of Court, the plaintiff may Joinciei- of unite in the same action and in the same statement of ^lises'ot claim several causes of action, but if it appear to the action. Court or a judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or j udge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof. 23. It shall not be necessary that every defendant to any action shall be interested as to all the relief thereby prayed for, or as to every cause of action included therein; but the Court or a judge may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in such action in which he may liave no interest. 24. If it appear to the Court or a judge, either from Power for the statement of claim, or defence, or reply or otherwise, ^^"i^e pre- that there is in any action a question of law, which it uminary would be convenient to have decided before any evidence onaw°!li is given or any question or issue of fact is tried, or before an action. any reference is made to a referee or an arbitrator, the Court or judge may make an order accordingly, and may •direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court or judge may deem expedient, or as may be prescribed by rules of Court, and all such further pro- 246 APPENDIX. night ot discovery fin inter- rogatories. Production of documeuts pleidpd or proved. ceedings as the decision of sucli question of law may render unnecessary may tliereupon be stayed. Discoveri/. 25. Subject to any rules of Court, a plaintiff (5) in any action shall be entitled to exhibit interrogatories to, aud obtain discovery from, any defendant, and any defend- ant (c) shall be entitled to exhibit interrogatories to, and obtain discovery from, a plaintiff or any other party. Any party shall be entitled to object to any interrogatory on the ground of irrelevancy, and the Court or a judge, if not satisfied that such interrogatory is relevant to some issue in the cause, may allow such objection («?). No exceptions shall be taken to any answer, but the suffi- ciency or otherwise of any answer objected to as insufii- cient shall be determined by the Court or a judge in a summary way. The Court in adjusting the costs of the action shall at the instance of any party inquire or cause inquiry to be made into the propriety of exhibiting such interrogatories, a^d if it is the opinion of the taxing master or of the Court or judge that such interrogatories have been ex- hibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be borne by the party in fault. 26. Every party to an action or other proceeding shall be entitled, at any time before or at the hearing thereof, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit him or them to take copies thereof (e); and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such action or proceeding, unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the action, or that he had some other sufficient cause for not complj'ing with such notice. (i) See p. 177, ante. (c) See p. 181, ante. (d) See p. 180, ante. (e) See p. 185, ante. APPENDIX. 247 27. It sliall be lawful for the Court oi" a judge at any Discovers' time during the pendency therein of any action or pro- "stodutu- <;eeding, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit or proceeding, as the Court or judge shall think right ; and the Court may deal with such documents, when pro- educed, in such manner as shall appear just {/). Place of Trial. 28. There shall be no local venue for the trial of piaceof any action, but when the plaintiff proposes to have the *"'*'• action tried elsewhere than in Middlesex, he shall in his .statement of claim name the county or place in which he proposes that the action shall be tried, and the action shaU, unless a judge otherwise orders, be tried in the •county or place so named. Where no place of trial is named in the statement of claim, the place of trial shall, unless a judge otherwise orders, be the county of Middle- sex. Any order of a judge, as to such place of trial, may be discharged or varied by a Divisional Court of the High Court. 29. The list or lists of actions for trial at the sittings in London and Middlesex respectively shall be prepared and the actions shall be allotted for trial in such manner -as may be prescribed by rules of Court, without reference to the division of the High Court to which such actions may be attached. Mode of Trial. 30. Actions shall be tried and heard either before a judge or judges, or before a judge sitting with assessors, or before a judge and jury, or before an official or special referee, with or without assessors. 31. The plaintiff may give notice of trial by any of the modes aforesaid, but the defendant may, upon giving notice, within such time as may be fixed by rules of given. Court, that he desires to have auy issues of fact tried iefore a judge and jury, be entitled to have the same so List for trials ill London and Middlesex. Mode of trying actions. Notice of mode of trial to be (/) Seep. 185, ante. 248 APPENDIX. Different questions arising in same lUJtion may be tried in different ways. Trials by jury. Proceedings before an official referee. Effect of decision of referee. Mode of giving evi- dence at trial. tried, or he may apply to the Court or a judge for an order to have the action tried in any other of the said ways, and in such case the mode in which the action is to be tried or heard shall be determined by such Court or judge. 32. In any action the Court or a judge may, at any time or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and may appoint the place or places for such trial or trials. 33. Every trial of any question or issue of fact by a jury shall be held before a single judge, unless such trial be specially ordered to be held before two or more judges. 34. Where an action or matter, or any question in an action or matter, is referred to a referee, he may, subject to the order of the Court or a judge, hold the trial at or adjourn it to any place which he may deem most conve- nient, and have any inspection or view, either by himself or with his assessors (if any), which he may deem expe- dient for the better disposal of the controversy before him. He shall, unless otherwise directed by the Court or a judge, proceed with the trial in open Court, de die in diem, in a similar manner as in actions tried by a jury. 35. The referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit any question arising therein for the decision of the Court, or state any facts specially, with power to the Court to draw inferences therefrom, and in any such ease the order to be made on such submission or statement shall be entered as the Court may direct ; and the Court shall have power to requii-e any explanation or reasons from the referee, and to remit the action or any part thereof for re-trial or further consideration to the same or any other referee. Evidence. 36. In the absence of any agreement between the par- ties, and subject to any rules of Court applicable to any particular class of cases, the witnesses at the trial of any APPENDIX. 249 cause or at any assessment of damages, shall be examined viva voce and in open Court, but the Court or a judge may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affi- davit of any veitness may be read at the hearing or trial, on such conditions as the Court or judge may think reason- able, or that any witness whose attendance in Court ought for some sufficient cause to be dispensed with, be examined iy interrogatories or otherwise before a commissioner or examiner ; provided that where it appears to the Court or judge that the other party bona fide desires the pro- duction of a witness for cross-examination, and that such ■witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. 37. Upon any interlocutory application evidence may Evidence at be given by affidavit; but the Court or a judge may, on appucations"' die application of either party, order the attendance for cross-examination of the person making any such affi- davit. 38. Affidavits shall be confined to such facts as the Matter ot witness is able of his own knowledge to prove, except on afti'ii'vits. interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The ■costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. 39. Any party to an action may give notice, by his Admissions. own statement or otherwise, that he admits the truth of the whole or any part of the case stated or referred to in 4he statement of claim, defence, or reply of any other party. Either party may call upon the other party to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the action may be, unless at the hearing or trial the Court certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice M 5 250 APPENDIX. be given, except where the omission to give the notice is, in the opinion of the taxing officer, a saving of expense. Power for party to apply for order before termination of action. Power to transfer questions arising in actions. Accounts uad incLUiries. Interim orders as to subject- matter of liti£ration. Power to make orders for sale of goods. Power for Court to malve interim Interlocutory Orders and Directions. 40. Any party to an action may at any stage thereof apply to the Court or a judge for such order as he may, upon any admissions of fact in the pleadings, be entitled to, without waiting for the determination of any other question between the parties. 41. The Lord Chancellor, with the concurrence of the Lord Chief Justice of England, may order any question of law or of fact which may arise in any action or matter to be transferred from any judge to any other judge, or to be tried or heard by any other judge of the said High Court, and may confer on such judge power to deal with, the whole or any part of the matters in controversy. 42. The Court or a judge may, at any stage of the proceedings in an action or matter, direct any necessary inquiries or accounts to be made or taken, notwithstand-' ing that it may appear that there is some special or further relief sought for or some special matter to be tried, as to which it may be proper that the cause should proceed in the ordinary manner. 43. When by any contract a prima facie case of liability is established, and there is alleged as matter of defence a right to be relieved wholly or partially from such liability, the Court or a judge may make an order for the preservation or interim custody of the subject- matter of the litigation, or may order that the amount in dispute be brought into Court or otherwise secured. 44. It shall be lawful for the Court or a judge, on the application of any party to any action, to make any order for the sale, by any person or persons named in such order, and in such manner, and on such terms as to the Court or judge may seem desirable, of any goods, wares, or merchandise which may be of a perishable nature or likely to injure from keeping, or which for any other just and sufficient reason it may be desirable to have sold at once. 45. It shall be lawful for the Court or a judge, upon the application of any party to an action, and upon suck APPENDIX. 251 terms as may seem just, to make any order for the deten- orcicts as to tion, preservation, or inspection of any property, being SJ'ixamJna- the subject of sucli action, and for all or any of the tion of purposes aforesaid to authorize any person or persons to ?x°amiDatiVn enter upon or into any land or building in the possession °* witnesses, •of any party to such action, and for all or any of the purposes aforesaid to authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining fuU information or evidence. The Court -or a judge may also, in all cases where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before any oificer of the Court, or any other person or persons, and at any place, of any witness or person, and may order any deposition so taken to be filed in the Court, and may empower any party to any action or other proceeding to give such deposition in evidence therein on such terms, if any, as the Court or a judge may direct. 46. The plaintiff may, at any time before receipt of niscon- the defendant's statement of defence, or after the receipt os'actiMi. thereof before taking any other proceeding in the action {save any interlocutory application), by notice in writing, wholly discontinue his action or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay the defendant's costs of the action, or, if the action be not wholly discontinued, the defendant's costs occasioned by the matter so withdrawn. Such costs shall be taxed in the manner prescribed by rules of Court, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be com- petent for the plaintiff to withdraw the record or discon- tinue the action without leave of the Court or a judge, hut the Court or a judge may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may seem fit, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The Court or a j udge may, in like manner, and with the like discretion as to terms', upon the application of a defendant, order the whole or any part of his alleged grounds of defence 252 APPENDIX. or counter-claim to be withdrawn or struck out, but it stall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave. Any judgment of nonsuit, unless the Court or a judge other- wise directs, shall have the same effect as a judgment upon the merits for the defendant; but in any case of mistake, surprise or accident, any judgment of nonsuit may be set aside on such terms, as to payment of costs and otherwise, as to the Court or a judge shall seem just. Costs. 47. Subject to the provisions of this Act, the costs of and incident to all proceedings in the High Court shall be in the discretion of the Court ; but nothing herein con- tained shall deprive a trustee, mortgagee or other person 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 Courts of Equity. Restrictions on new trials. Abolition of bills of exceptions and proceed- ings in error. Mode of appealing. New Trials and Appeals. 48. A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, unless in the opinion of the Court to which the application is made some substantial wrong or miscar- riage has been thereby occasioned in the trial of the action ; and if it appear to such Court that such wrong or miscarriage affects part only of the matter in contro- versy, the Court may give final judgment as to part thereof, and direct a new trial as to the other part only. 49. Bills of exceptions and proceedings in error shall be abolished. 50. All appeals to the Court of Appeal shall be by way of re-hearing, and shall be brought by notice of motion in a summary way, and no petition, case or other formal proceeding other than such notice of motion shall be necessary. The appellant may by the notice of motion appeal from. the whole or any part of any judgment or order, and the notice of motion shall state whether the whole or part only of such judgment or order is com- plained of, and in the latter case shall specify such part. APPENDIX. 253 51. The notice of appeal shall be served upon all parties xotfcoof y subsequent portion where the giver stands in loco parentis, 100. See Satisfaction. ADJUSTMENT, remedies by way of, 88. ADMINISTEATION, of insolvent estates, 206. jurisdiction as to, 88, 89. in Chancery, division of High Court, 215. of legal and equitable assets, 11, 92. order of administration of assets, 94. order of satisfaction, 93. marshalling of assets, 13, 9C. See ^JIakshallixg. ADMINISTRATOR. See Executor. ADVANCEMENT, presumption as to purchase in another's name being, or rcsultiijg- trust, 27. AFTER-ACQUIRED PROPERTY, covenant to settle, 78. AGREEMENT. See Contkact. 256 INDEX. AMENDMENT of plaintiff's or defendant's case, 177, 244. ANNUITY, ■when receiver appointed of, 164. ANSWER, meaning of word, 189 (note). no exceptions to, 246. " he who answers must answer fully," 188. ANTICIPATION, restraint on, 77. APPEAL, 252—254. See Court. what orders are not to be subject to, 223, APPOINTMENT. See Powbk. fraudulent, 53, 108. APPORTIONMENT, jurisdiction as to, 104, 105. ARRANGEMENT, family settlement supported unless undae influence shown, 5C. ASSESSORS, for hearing causes, 224, 247. ASSETS, legal and equitable, 11, 92. whether wife's separate property is equitable assets, 87. ASSIGNMENT, voluntary, 33. of choses in action and equitable interests, 58, 208. with notice, 59. assignee takes subject to equities of assignor, 60—64, 145. B. BANKRUPTCY, forfeiture of husband's interest on, 77. insolvent estates to be administered as in, 93. jurisdiction of Court of, 161. OBILL OF DISCOVERY, 176. BILL OE EXCHANGE, mistake in form of, 149. BILL OE PEACE, 168, 171. INDEX. 257 T30ND, assignment of, 31. Sec Chose in Action. penalty of, when relieved against, 130, 131. J3UILD, covenant to, not specifically enforced, 120. See p. 118. C. CANCELLATION, of deeds, 133. jurisdiction as to, in Chancery Division of High Court, 210. ■CATCHING BARGAINS, 57. CAUSE. See Action. interpretation of word, 237. CHANCELLOR, LORD, how far affected hy Judicature Act, 236. jurisdiction of, in lunacy, over patents, colleges, charities, 200. CHANCERY DIVISION, of High Court of Justice, business of, 215. CHARGE, paid ofE by tenant for life, when merged, 105. on land, to be raised by Chancery-Division of High Court, 21.5, 216. CHARITIES, no marshalling in favour of, 78. CHATTELS, delivery of, 114, 116. CHILDREN. See Infants. removal of, from their parents, 7, 71. CHOSE IN ACTION, / creation of voluntary trust of, 31. assignment of, in equity, 58. See ASSIGNMENT. of married women, 72. equity to a settlement out of, 86. COMMITTAL TO PRISON, power of Court, how consistent with Magna Charta, 155. COMMON, right of commoner or lord, bill of peace to try, 169, 171. COMPENSATION, specific performance with, 127. for a breach of covenant or condition, instead of penalty or forfeiture, 130, 132. 258 INDEX. COMPROMISE OR FAMILY ARRANGEMENT, DC. CONDITION, in restraint of marriage, 101. relief against breach of, 130, 132. CONSCIENCE, how far bound in Equity, 34, iS. See Pebson. CONSIDERATION, inadequate, in dealing with reversioner, 57. conTeyauce without, 35, 37. See Voluntary Trust. valuable, agreement not enforced in the absence of a, 31, 34. parol proof of, where settlement is voluntary on the face of it, 36. CONTRACT, construction of, in Equity and at Common Law, 109. of foreign governments, how dealt with, 158. mutuality of, 113 (note). what matters are of the essence of, 127, 209. rescission and rectification of, 133, 152, only for mistake in the writing, not for mistake as to the effect, 142. specific performance of, 113. See Specific Pebfoemance. CONTRIBUTION, between sureties, 15, 105. CONVERSION, (1) of produce of real estate into personalty, 102. (2} of hazardous investments and perishable property, 102. CONVEYANCE, VOLUNTARY, 3, 87. with notice of another's title, 61. in another's name, 2G. COPYRIGHT, injunctions to restrain infringements of, 172. COSTS, 252. solicitor taking gross sum for, 52. COUNTY COURT. &c Couet,Infebiob;DisteictRegistey. COURT. See Action; Distbict Registry. Supreme, constitution and judges of, 196. jurisdiction of, 199. divisions and divisional courts of, 213, 219, 220. Appeal, constitution of, 106. Palatine, of Lancaster, 200, 201. County, appeals from, 221. Inferior, 234. iXDEx. 259 COVENANT, performance of, 29. to lease property, or to purchase and to settle lands, how implied, 29. as to after-acquired property in marriage settlement, 78. injunction granted against breach of, 17i. CREDITORS. See Debts. favoured by supplying defective execution of powers, 151. frauds on, by voluntary settlement in case of embarrassment, 35. preferences of, 12, 91—93. payment of legatees before, 98. D. DAMAGES, when proper remedy for breach of contract, 114, 116. when given under Lord Cairns and Sir John Kolt's Act, 120, 121. when assessed instead of penalty, 131. liquidated, when recoverable, 132. DEBTS, retainer or preference of, by executor, 12, 91, 93. equal payment of, 12, 92. order of administratioa of different properties in payment of, 95. DEEDS, production of, bv mortgagee not required till mortgage is paid, 182. jurisdiction to cancel and rectify, 13.5, 1 ")2. discovery as to, and copies of, 184, 246, 247. DEMUEKEK, 189, 190, 244. DIRECTORS OF COMPANIES, fraud of, 43. breach of trust of, 164. DISABILITY. See Inpakts; Lunatics; Married Women. persons under, 65. suing by next friend, 241. DISCOVERT, 175, 24G. bill of, 175. not compelled as to matters of imperfect obligation, 178. ■ nor matters irrelevant, generally, 180, 186, 246 ; or not relating to parties' own case, 182. nor criminating matters, 183. nor professional communications, 184. nor official secrets, 184. :260 IJTDEX. DISTRICT REGISTRY, establishment of, and proceedings in, 226. accounts and inquiries may be referred to, 227. DISTRINGAS, 59. DOCUMENTS, discovery as to, 18i, 246, 247. jurisdiction to cancel and rectify, 133 — 152. E. EJECTMENT, when necessary before suit in. equity, 1G6. " ejectment bill," 166 (note). ELECTION, 101. as to benefit given by will, 102. ENGAGEMENTS, amounting to trusts, 8, 16, 35, 45, 53, 122. EQUITABLE ASSETS, 11, 92. See 87. EQUITABLE ASSIGNMENTS, 57. subject to equities, 60, 61, 63, 64, 145. EQUITY, history of, 4 — 7. description or definition of, 9. to be administered concurrently with Common Law, 1, 203. rules of, to prevail, 209. " follows the law," 2, 9, 34, 39, 42, 90, 91, 98. equality is, 14, 93. he who seeks, must do, 63, 83, he who seeks, must come with clean hands, 15. to a settlement, 80. See Maeeied Women. suffers no right to be without a remedy, 14. exclusive and concurrent jurisdiction of, 17, 24. not a Court of honour, 15, 178. how far regards the substance and not the letter, 23. agit in; personam, 24, 48, 157. jurisdiction of, over fraud, 43. on account of the inadequacy of the legal relief, 108. or to avoid circuity of action or multiplicity of suits, 89. or on account of the necessity for a discovery, 176. auxiliary jurisdiction, 166. EVIDENCE. See Discoveey ; Witness, rules as to citd voce and affid(ivit, 248. INDEX. 261 ]';XECUTOR or ADMINISTBATOE, distinction between, and trustee in regard to the effect of join- ing in receipts, 103. how far trustee, S8— 90. to sue and be sued on behalf of trust estate, 242, right of, to retain or prefer debt, 12, 91 — 93. but not out of equitable assets, 93. EXECUTORY TRUST, 38. EXONERATION of personal estate from debts, 96. EXPECTANT HEIRS, dealing's with, 57. F. EAMILT, meaning of word, 38. arrangement, 56. EOREIGN, contract or law, not interfered with by equity, 158. EORFEITURE, jurisdiction as to, 130, 132. of husband's interest in wife's property, 77. FRAUD. See Engagement; Notice; Repkesektation. concurrent jurisdiction in cases of, 43. misrepresentation or concealment leading to avoidance of con- tract, 140, 142. equitable, 42. on marital rights, 73. on a power, 54. on public policy, 42. agreements to influence testators, 47. by way of undue influence of parent, guardian, solicitor, trustee, &e., 50—52. in dealings with reversioners, 56. FRAUDS, STATUTE OF, operation of, with regard to trusts, 25. contracts, 123. not to be an instrument of fraud, 47. G. GUARDIAN. See Infants constructive fraud of, 62. 262 INDEX. H. HEIR, right to undisposed-of produce of real estate, 102. bargains with expectant, 56. HUSBAND AND WIFE. See Maekied "Women. fraud on marital rights, 73. I. ly LOCO PARENTIS, 27. INFANTS, jurisdiction as to, 65, 69. in Chancery, division of High Court, 216. rules of Equity as to, to prevail, 209. appointment of guardians for, 69. religion of, 70. removal from their father, 70, 71. wards of Court, 69—71. fraudulent appointment to, 54. custody of, act as to, 71. settlement on marriage of, 72. how to sue and defend actions, 242. INJUNCTIONS, 153—174. when to be granted, 167, 209. interlocutory, 162. to restrain proceedings at common law, 176. to restrain proceedings on other courts abolished, 159, 160, 204, See Stay of Peocebdings. after judgment in administration suit, 160. not against a foreign suit, 158. to preserve property, 172. not where ejectment could he brought, 167. against trespass, 167. against waste, 171. against nuisance, 172, 173. against infringement of patent, copyright and trade-mark, 172. application to parliament, 158. breach of covenant, 172. INTERPLEADER, suit for, 161. INTERROGATORIES, 176, 246. fishing, i. e., not relating to parties' own case, 182. INVESTMENT, of perishable property, 102, 103. ISSUES, power for judge to settle, 244. trial of, 247, 248. INDEX. 263 JOINT TENANCY, when presumption is against, 28. JUDGES. See Assessoes ; Eepbeexce. appointment of, 197. extraordinary duties of, 198. powers of single, 219. absence or vacancy of office of, 223. JUDGMENT, no lieu in respect of, until land is delivered in execution, 61. JURISDICTION, property out of, jurisdiction in jyersmiam as to, 157, 158. LACHES, consequences of, 14i. LAND, specific performance of contracts as to, 123. XEASE, renewal of, by a trustee, 49. notice of, when notice of contents, 62; not as between vendor and purchaser, 62. duty of executors to assign, 09. "for seven or fourteen years," meaning of, 142. XEGACT, demonstrative, 99. equity to settlement out of, 82. refunding, to pay debts, 98. for a condition which cannot be accomplished, 100. abatement of, 99. ademption of, 99. LEGAL ASSETS, 11, 12. LEGAL ESTATE, transfer of, under Trustee Act, 40. LIBEL, restrained, 6. LIEN, sale and distribution of proceeds of property sabjeot to, in » Chancery Division of High Court, 21G. of a vendor, 13, 97, 98. /See Vendor's LlEN, 264 INDEX. LIGHT AND AIR, 173. LIMITATIONS, STATUTE OF, operation of, as regards trusts, 22, 207. LOCKE KING'S ACT, 13. LUNATICS, jurisdiction as to, 65 — 69, 200. M. MAGNA CHAKTA, attacliment oil person notwithstanding, 15."). MAINTENANCE, of suits in early times, 2 — 5. MAEITAL EIGHTS, fraud on, 73. MARRIAGE, representations leading to, when amount to trust, i5. conditions in restraint of, 101. frauds on marital rights, 73. articles, execution of, 38. MARRIAGE SETTLEMENT, ordinary trusts of, 76. MARRIED WOMEN, common law rights of, 72. choses in action of, 80. mortgage of estate of, 151. separate estate, 76. See Separate Use. by gift during marriage, 77. by separate earnings under the Married Women's Pro- perty Act, 87. liability of, 86, 87. equity to a settlement of, out of her own property, 80. as plaintiff or defendant against her husband, 83, 84. as against husband's assignees, 84. not out of life interest, 84. how lost by act of trustee, 82j or waived, 83. right of survivorship of, in regard to reversionary interest, 84_ deeds of separation, custody of child under, 72. how to sue and defend action, 242. MARSHALLING, of assets, 13, 96. as between legacies charged on land and vendor's lien, 97. in the case of charitable legacies, 98. j, of securitiosand mortgages, 97. INDEX. 2t)5 MASTER OF EOLLS, jurisdiction of, over records, 200. MATERIALITY, of discoverj, 180, 186. MAXIMS, actio personalis moritur cnm persona, 90. seqnitas agitin personam, 24 — 48. equity regards the substance and not the letter, 23. ex nndo pacto non oritur actio, 30. hard cases make bad law, 8. equity follows the law, 2, 9, 34, 39, 90, 91, 98. equity is equality, 14. he who answers must answer fully, 188. inter mercatores jus accrescendi locum non habet, 28. ignorantia juris hand excusat, 139. no right without a remedy, 14, 24. Tigilantibus non dormientibus ajquitaa subvenit, 144. who comes into equity must have clean hands, 15. who comes into equity must do equity, 16. qui prior est tempore potior est jure, 64. modus et conventio vincunt legem, 76. MERGER, of wife's reversionary interest, not permitted, 84. of charges paid off by tenant for life, 105. none by operation of law, unless beneficial estate merged in equi^, 207. MISJOINDER, of parties, 241. of causes of action, 245. MISREPRESENTATION, slight, 127. substantial, e.g., as to tenure, 129. leading to avoidance of contract, 139. by a man standing by and letting others expend money on his property, 124. MISTAKE, jurisdiction to relieve for, in respect of a vpritteu instrument, 133—152. ignorance of law, 138, 142. MONEY DEMAND, no relief in equity for, 43, 120. except in cases of fraud, 43. MORTGAGE, clause in, that survivors of trustees may give receipts, 28. production of deeds by mortgagee not compelled, 182. C. N 266 INDEX, MO^TGAG'E— continued. priorities as to, under doctrine of notice, 58. how far apply to real estate, 60. mortgagor's estate and rights, 104, 207. equity of redemption, 130. of wife's estate for husband's debt, 151. a mortgage and a pledge distinguished, 58. MUTUAL MISTAKE, therefore no contract, 137. N. NOTICE, constructive, 62. ■what is, 59. purchase with notice of another's title, 61. of assignment should be given to prevent delusive credit, 58. not applicable to real estate, 60. NUISANCE, injunctions to restrain, 173. 0. OATHS, commissioners of, 232. OBLIGATION, implied performance of, 29, 30. OPTION OF RE-PURCHASE, 128, note (»). ORDER OF ADMINISTRATION, of assets, 95. P. PALATINE COURT, 200, 201. PARENT, undue influence of person standing in loco parentis, 53, 56. PARLIAMENT, abuse of powers given to companies by application, restrained, 167, 171. application t», whether restrained, 158. PAROL, contracts enforced in cases of part performance, 123. evidence to rebut a presumption of law, 27. variations, by way of defence in Equity, 125, 134. at Common Law, 125. INDEX. 267 PART PERFORMANCE, doctrine of, 123. PARTITION, jurisdiction as to, 20, 106. in Chancery Division of High Court, 216. statute allowing sale in place of, 106. title to be shown, 20. PARTNERS, how to sue or be sued, 241. PARTNERSHIP, concurrent jurisdiction as to, 105. dissolution and accounts in Chancery Division of High Court 215. ' injunctions in matters of, 165. propert;y for partnership purposes held in tenancy in common ''8 obbgation joint and several, 151. PARTY, interpretation of word, 237. rules as to parties, 241—243. PATENT, injunctions to restrain infringements of, 168, 172. jurisdiction of Lord Chancellor as to, 200. PEACE, bills of, 168—171. PENALTIES AND FORFEITURES, jurisdiction as to, 130 — 133. PENDING BUSINESS, transfer of, 201. PERFORMANCE, of obligation, 29. distinguished from satisfaction, 30. PERPETUATION OF TESTIMONY, bill for, 191. PERSON, jurisdiction in personam as to trusts, 24—48. by injunction, 167, 158. PERSONALTY. See Chattels— Chose in Action. creation of voluntary trust concerning, 32. in what case specific performance decreed of contracts relatinsr to, 114, 115. PLEA, 190. PLEADINGS, rules as to, 243. n2 268 INDEX. POLICY OF ASSURANCE, maritime, liS. assignment of, 59. PORTION, or other charge on land to be raised in Chancery Division of High Conrt, 215. equity leans against double, 100. satisfaction of, 99. See Ademption. POWER, fraud on, 53, 108. of reTocation should be inserted in Toluntary settlement, 37. relief in cases of the defective execution of, 151. in the nature of a trust, 37. PRECATORY TRUSTS, 37. PREFERENCE, of a particular creditor by executor or administrator, 12. PRESCRIPTION ACT, 169, note. PRESERVATION OF PROPERTY (see Injunctions), 172, 250. PRESS, restraint of libellous use of, 6. PRESUMPTION, against covenantor or grantor, 29. parol evidence to contradict, 27, 36. PROBATE COURT, jurisdiction of, 53. PROCEDURE, saving of existing, 229. councils of judges as to, 230. PROCESS, to enforce decree by committal to prison, 155. PROMISE. See Engagement — Rbpkesentations. PROMISSORY NOTE. See Chose in Action. PUBLIC POLICY, fraud against, 42. PURCHASE, with notice of another's title, 61. in another's name, 26. covenant to purchase lands, performance of, 29. of an estate by a trustee, 49. INDEX. 269 PURCHASE -continued. with right of re-purchase, 128, note. seeing to the application of purchase money, 89. PURCHASER. See Reversioner. for valuable consideration, 64, 163. need not make discovery, 179, 188. right of, as against beneficiaries under voluntary settlement, 36. Q- QUESTIONS OF LAW AND FACT IN EQUITY, 20. issues as to, 244, 247, 248. preliminary decisions of, 245. QUIA TIMET, jurisdiction so called, 134. E. RAILWAY COMPANIES, abuse of parliamentary powers by, restrained, 171. RECEIPT, distinction between trustees and executors as regards joining in, 103. EECEIVER, not appointed of property from which defendant could be ejected at common law, 163, 166. RECTIFICATION OF INSTRUMENTS, to be carried out in Chancery Division of High Court, 216. only with consent, 136. or complete proof, 147 — 149. REDUCTION INTO POSSESSION, of chose in action, 80. REFERENCE, of questions to oiBcial or special referees, 224, 225, 248. appointment of official referees, 232. REGISTRARS (see District Registry), 226, 227. REGISTRATION ACTS, how affected by notice, 63. RELEASE, rectifying, 145. REMEDY, equity provides for Common Law rights, 11. only when Common Law remedy of damages is inadequate, 153-173. n3 270 INDEX. REMAINDERMAN, bargain with, 57. RENEWAL or LEASE, by a trustee, 49. REPAIRS, contract to do, not specifically enforceable, 118. REPRESENTATIONS, or engagements amounting to truste, 16, 35, 45 — 48, 53 — 122. RE-PURCHASE, purchase with right of, 128, u. RESCISSION, of contract, 133. RESIDUARY DEVISE, still specific for some purposes, 95. RESTRAINT ON ANTICIPATION, of income of wife's separate property, 77. RESULTING USES, or trusts, 26. REVERSIONER, bargain with, 57. REVOCATION, want of power of, .?7. RIGHT, " none without a remedy" in Equity, 14, 24. RULES OF COURT, how to be made, 227—230. S. SALE, with option of re-purchase, 128, n. by a trustee, 29. SATISFACTION, of portion secured by settlement or ademption of portions left by wiU, 99, 100. SCANDAL, striking out matters of, 244. SECURED CREDITOR, how to prove bis debt, 207. INDEX. 271 SECUEITY, mutual right to the benefit of, between creditor and sureties. 14, 106, 107. SEPARATE PROPERTY, of manied women, 76. effect on, of Married Women's Prqperty Act, 86. restraint on anticipation of income, 77. power of disposal over, 77. liability of, to debts and engagements, 86. SEPARATION, deed of, between husband and wife, 72. SERVICE OF WRIT, substituted or out of jurisdiction, 239. on parties added by judge, 241. SET-OFF, by counter-claims of defendant, 244, 245. SETTLEMENT, equity to, 83. on marriage of infant, 72. rectification of, 150. Tolnntary, 35, 37. SOLICITOR, of High Court, 234. what communications by or to, privileged fi-om discovery, 184. gifts to, by will or deed, 52. being a trustee to charge only money out of pocket, 60. taking gross sums for fees, 52. SPECIEIC PERFORMANCE, remedy in Chancei-y Division of High Court, 216. only in cases where damages would not afford compensation, 108, 112; and if the performance can be carried out by the court, 113, 118. not of money contracts, 113—117; but of contracts as to real property, 123. not of contracts to build or repair, 118, 120. with compensation as to terms not of the essence, or as to slight misdescriptions, 127. with parol variations or additions, 125. of agreement to borrow, 113, 114. in case of negative agreements, by way of injunction, 118. STANNARIES, jurisdiction of warden of, 201. STATUTES, 25 Edw. 1 (Magna Charta), 154. 17 Edw. 2, c. 10 (Property of lunatics), 66. 272 INDEX. STATUTES— continued. 13 Eliz. c. 5 (Voluntary settlement, creditora), 35, 76. 27 Eliz. c. i (Volantary settlement, purchasers), 36, 61. 29 Car. 2, c. 3, s. i (Statute of Frauds, contract as to land), 11, 123, 125, 126. ss. 7, 8 (Creation of trusts), 25. 8 & 9 Will. 3, c. 11 (Relief against penalties in bonds), 130, 131. 4 & 5 Anne, c. 8 (Relief against penalties in bonds), 130. 4 Geo. 2, c. 28 (Recovery of annuity), 164. 2 & 3 Will. 4, c. 71 (Prescription of common rights), 169. 3 & 4 Will. 4, c. 27 (Limitations, trusts), 22. c. 104 (Real property — legal assets), 12. 2 & 3 Vict. c. 54 (Custody of infants), 71. 5 & 6 Vict. c. 69 (Perpetuation of testimony), 192. 10 & 11 Vict. c. 96 (Trustee Relief Act), 39. 13 & 14 Vict. c. 60 (Trustee Act), 40. 15 & 16 Vict. c. 86, 3. 19 (Chancery improvement ; defendant's interrogatories), 181. s. 22 (Chancery improvement ; witnesses abroad), 191. 3. 58 (Chancery improvement; common injunction), 176. t. 87 (Jurisdiction in lunacy), 66. 17 & 18 Vict. c. 125, ss. 79, 82 (Common law procedure ; writ of injunction), 156. ss. 51 — 57 (Common law procedure ; evi- dence of parties), 175. , 18 & 19 Vict. c. 43 (Infant settlements), 72 19 & 20 Vict. u. 120 (Leases and sales of settled estates), 215. 20 & 21 Vict. u. 77 (Probate Court; jurisdiction), 192. 21 & 22 Vict. u. 27 (Lord Cairns' ; Chancery amendment, 1858), 20, 117, 120. c. 77 (Leases and sales of settled estates), 215. 22 & 23 Vict. c. 35 (Lord St. Leonards' ; property and trustee's relief), 40, 99, 215. 23 & 24 Vict. c. 38 (Lord St. Leonards' ; law of property), 40. c. 126 (Relief against forfeiture of lease), 130. c. 145 (Lord Cranworth's), 40, 215. 25 & 26 Vict. c. 42 (Sir J. Rolfs ; questions of law and fact), 20, 117, 120. 27 & 28 Vict. c. 45 (Leases and sales of settled estates), 215. c. 112, s. 1 (Judgments), 61. 30 & 31 Vict. c. 69 (Locke King's ; extension), 13, 98. c. 144 (Assignment of policies), 59. 31 Vict. c. 4 (Sales of reversions), 57. 31 & 32 Vict. c. 40 (Partition), 106. 32 & 33 Vict. c. 46 (Equality of debts), 12, 93. c. 62 (Imprisonment for debt), 154. c. 71, 3. 15 (Bankruptcy; reputed ownership), 69. 3. 72 (Bankruptcy; injunction), 160. IJSDEX. 273 STATUTES— coTO«- INDEX TO CATALOGUE. Page Accounts, Law of. Pulling ... 43 Actions at Law. Browne 44 Kerr 25 Williams 3? Administration Bonds. Chadwiiik 24 Admiralty, Practice. Coote ... 23 Aliens. Cutler ... 23 .A rbitrations. ' Redman 13 Articled Clerk. Mosely 16 Attachment, Foreign, Brandon ... 42 Awards. Hedman ... 13 Banking. Grant 12 Keyser 43 Bankruptcy, Robson 30 Manual. Bulley & Bund ... 15 In County Courts, Davis ... ..., 9 Index. Linklater ... 44 Bar. Examination Journal t Law Students' Guide 45 Smith ... ... 42 Pearce ... .. 44 Barbados. Laws of .. 44 Belligerents, Hamel 43 Bills of Exchange. Grant 12 Bills of Sale. Hunt . 6 Blackstone. Stephen's 4 ; Blockade. Deane ... 44 Bookkeeping, Solicitors. Coombs. 39 Boimdaries. Hunt ... 30 Brokers. Keyser ... 43 Carriers; Inland. Powell ... 28 Railway. Shelf ord 10 Chamber Practice. Com.Law. Parkinson 29 Chancery Practice. Goldsmith 21 Hunter 6 Drafting. Lewis ... 14 Charitable Trusts. Tudor ...;. .„ 81 Church Building. Trower ... ' ... .39 Pews. Heales ... U © _ Page Civil Law. Tomkins & Jenckeu 28 Collieries. Bainbridge 6 Colonial Law. Barbados 44 Commentaries. Stephen'sBlackstone's 4 Phillimore's .. > ... 17 Common Law, Law ik' Equity. Chute 7 Practice, Bixon ... 13 Lush 13 Kerr 25 Companies. Grant 40 . . Shelford 11. Compensation, Law of. Ingram ... ... 33 . Shelford 10 Conspiracy, Law of. Wright ... 21 Consolidation Acts. Shelford 10 Constitution. May ., 5 Stephen 4 Contraband of War. Moseley 42 Deane 44 Contracts, Specijpe Performance. Fry 37 Conveyancing, Introduction. Lewis 15 Practice. Barry 19 Smith 14 Tudor 20 Forms. Crabb 22 Christie 22 Kelly 8 Shelford 22 House 26 Convictions', Synopsis of. Oke ... 31 Forms, Oke ... 34 Co-operation. Brabrook 39 Copyholds, Enfranchisement. Rouse 41 Lahu of. Scriven ... 33 Coroner. Baker ... 44 Corporations in General. Grant. 40 Costs, Law of. Gray .. 43 Page County Courts. Practice, Davis ... 9 _. Practii:einEquity,Bank- . ruptcy, Jtc. Davis 9 Practice in Admiralty, Coote 23 Criminal Law. Davis 31 Oke .. 34 Curates, field ... 40 Deeds. Tudor ... 20 Descents. Peame ... 45 Divorce. Practice. Browning .. ... 20 Domestic Servants. Baylls 12 Draftsman (The). Kelly.. i ,8 Drainage. Wilson ... 45 Woolrych 28 Ecclesiastical. Practice. Coote ... 46 Judgment. Bayford 46 Burdem; Heath... 46 Longii. Cape Town 46 PhiUimore r.. 46 Hebbert.t>. Purchas 46 Election, Law. Davis 29 England, Laws of. Blackstone 4 Francilloa ... 45 Stephen 4 English Bar. Pearce 44 Smith 42 Equity, County Courts. Davis 9 Doctrine and Practice. Goldsmith .. 21 Draftsman. Lewis 14 Equity & Law. Chute 7 Pleader. Drewry ... 36 Suit in. Hunter ' ... 6 Evidence, Ooilnty Court. Davis 9 Law'of. Powell ... 47 Wills. Wigram , 38 Circumstantial. WlWs 39 Examinations. Bar Examination Journal ... /.. > 7 Benham'.s (Prelimi- nary) Guide 41, 48 Law Examination. Journal 32 Mosely's Articled Clerks'HandyBook 16 Fences. Hunt so Fisheries. Bund ... 5 Oke ... 35 Foreshores. Hunt ... 30 Williamsv. Nicholson 45' -o e- -& INDEX TO CATALOGUK. »- Forms, Conveyancing. Crabb 22 Rouse 26 Magitterial. Oke... 34 Plmding. Chitty ... 19 Greening 44 Pnbatt. Chadwick 24 Frauds. Hunt ... 6 Game laws, oke ... S5 Gas Companies Acts. Michael and Will ... 27 Guarantees. DeColyar 1 Highways. Glen ... 4r House of Lords, Digest. Clark ... 18 Practice. May ... 5 Indian Penal Code. ^fMiysts. Cutler&GritBn 21 Indian Statutes, Index. Field 42 Industrial Societies. Brabrook 39 Institutes of English Public Law. Nasmith 18 Intermediate Examina- tion. Bedford ... 14 International Law. Deane ..; ... 44 Hamel 43 Pbillimore .._. "... 17 Intoxicating Liquors Act. Oke 34 Joint Stock Companies. Shelford 11 Accounts. Pulling 43 Jurisprudence. Holland on Fonu of the Law 40 Justiceof Peace, oke 34 Landlord and Tenant. Fawcett 7 Lands Clauses Acts. Ingram 33 Shelford !0 Law Student's Mag. 32 LawStudies. Mosely .. 16 Smith ... 42 Leading Cases, Real Properly. Tudor 20 Leases. Crabb 22 Rouse 26 Legacy Duties. Shelford 29 Libel. Starkie 47 Licensing Laws. Oke 34 Lights (Window). Latham 25 Local Goremment. Glen 35 Pag Lunacy. Phillips ... 37 Magisterial Law. oke S4 Forms. Oke ... 34 Maritime Warfare. Deane 44 Hamel 43 Masters and Serrants. Baylis J2 Davis 17 Masters and Workmen. Lovesy 18 Mayor's Court Practice. Brandon 42 Memoirs of — Lyndhurst 43 , Talfourd 43 Military Law. . Franklyn 45 Militia Laws. Dwyer 4S Mines and Minerals. Bainbridge 16 Fisher... 47 Rouse... 2jS Naturalization. Cutler 23 Negligence. Saunders 27 Parliamentary. Clifford & Stephens . 23 May 5 Partnership. Dixon . 27 Tudor's Pothier ... 45 Patents. Norman ... 45 Petty Sessions. Oke. 34 Pews. Heales 11 Pleading, Common Law. Chitty 19 Greening 44 WUIiams 37 Equity, Drewry ... 36 Lewis 14 Poor Law, Orders. Glen 37 Precedents, Conveyancing. Crabb 22 Rouse 26 Pleadivg. Chitty, jun. 19 Preliminary Exami- nation Journal ... 48 Principal and Surety. De Colyar 7 Priority. Fisher ... 47 Prirate Bills. Clifford & Stephens . 25 May 5 Prize Law. Lushington 39 Probate, Practice, Coote ... 47 Forms. Chadwick 24 Duties. Shelford ... 29 Provident Societies. Brabrook 39 A2 Page Public Health. Glen 35 PublicLaw. Nasmith 13 Eailways. shelford ... 10 Compensation. Ingram 33 Eeal Property. Tudor 20 Chart. Fearne .„ i^ Seaborne 36 Referees' Court. Clifford & Stephens . 25 Eegistration. Davis... 29 Keligious, Doctrine, Burder o. Heath 46 "■ Discipline, Long «. Cape Town 46 Eitual. Bayford ... 46 ' Hamel ... 46 Eoman Law. Gains . 24 Ortolan's 24 Tomkins 36 Tomkins ScJencken 28 Salmon Fisheries. Bund 5. Servants. Baylis ... 12 Sewers. Woolryoh ... 28 Sheriff's Court. Davis 9 Short Hand. Gumey 43 Slander, starkie ... 47 Specific Performance. Fi-y 37 Stock Exchange. Keyser 43 Student's Guide. Benham 41 Succession Duty. Shelford ... ... 29 Suit in Equity. Hunter 6 Summary Convictions. Oke 34 Tithes. Schomberg... 46 Torts. Underbill ... 25 Treaties. Hertslet ... 31 Trusts, Charitable. Tudor 31 Turnpike Laws. Oke 35 Vendors & Purchasers. Seaborne ,.._ ... 36 Water Companies Acts. Michael and Will ... 27 Wills. Crabb 22 Tudor 20 Wigram ... 38 Winding-up. Shelford 11 Window Lights. Latham 25 Wrongs. Undethill ... 25 -& -^^J LAW WORKS PUBLISHED BY STEPHEN'S BLACKSTONE'S COMMENTARIES.- 7tli Edit. Mr. SERJEANT STEPHEN'S NEW COMMEN- TARIES ON THE LAWS OF ENGLAND, partly founded on Blackstone. The Seventh Edition, by James Stephen, Esq., ' LL.D., Judge of County Courts, late rrofessor of English Law at King's College, London, and formerly Recorder of Poole. 4. vols. 8vo. 4:1. 4s. cloth. From the " Law Journal." "We cordiallywelcume the Seventh Edition of this noble and famous work. It is unnecessary fqr us on this occasion to repeat the eulogy which six years ago we bestowed, not without just reason, on the Commentariea as they then ap- peared. It has been remarked that Stephen's Commentaries enjoy the spe- cial merit of being an educational work, not merely a legal text book.. Their , scope- is so wide that every man, no matter what his position, profession, trade or employnjent, can scarcely fail to find ip them matter of special in- terest to himself, besides the vast fund of general information upon which every Englishman of intelligence may draw with advantage." From the "^Solicitors' Journal." " A work which has reached a Seventh Edition needs no other testimony to its usefulness. And when a law book of the size and costliness of these ' Com- mentaries* passes through many edi- tions, it must be taken as established that it supplies a need felt in all branches of the profession, and probably to sortie extent, also, outside the profession It is difficult indeed to riame a law book of more general utility than the one before us. It is (as regards the greater part) not too technical for the lay reader, and not too full of detail for the law student, while it is an accurate and (considering its design ) a singularly complete guide to the practitioner. This result is due in no small degree to the mode in which, the successive editions have been re- vised, the alterations in the law being concisely embodied, and carefully inter- woven with the previous material, form- ing a refreshing contrast to the la- mentable spectacle presented by certain works into which successive learned editors have pitchforked headnotes of cases, thereby rendering each edition more unconnected and confusing than its predecessor. As the result of our examination we may say that the new law has,in general, been accurately and tersely stated, and its relation to the old law carefully pointed out." From the " Law Times.'' *' We have in this Work an old and valued friend. Eor years we have had the last, the Sixth Edition, upon our shelves, arid we can state as a fact that when our text books on particular branches of the Law have failed us, we have always found that St ephen's Com- meptaries have supplied us with the key to what we sought, if not the actual thing we required. We think that these Commentaries establish one important proposition, that to be of thorough prac- tical utility a treatise on English Law cannot be reduced within a small com- pass. The subject is one wlrich must be dealt with comprehensively, and an abridgment, except merely for the pur- poses of elementary study, is a decided' blunder. Of the scope of the Coni- mentaries we need say nothing. To all who profess acquaintance with the English Law their plan and execution must he thoroughly familiar. The learned Author has made one con- spicuous alteration, confining 'Civil Injuries* within the compass of one volume, and commencing the last volume with • Crimes,*^and in that volume hehaa placedaTable of Statutes. In every respect the Work is improved, and the present writer can say, from practical experience, that for the Student and the Practitioner there is no better Work published than ' Stephen's Commentaries."* From the " Law Examination JoumaV "This most valuable work has now reached its Seventh Edition. Those who desire to take a survey of the entire field of English Law cannot do better than procure this work. It will be found especially Ireful for those whose legal studieshave not commenced, but are desirous of making themselves- ac- quainted with the lawsof theircountry, whether for the purpose of professional study, or for the purpose of serving their country as justices of the peace. What Bacon's works are to philosophy, Black- ?tone's Commentaries and Stephen's Commentaries, founded on Blackstone, are to the study of English Law. For a general' survey of the entire field of ' English Law, or, at least, for a com- parative survey of different branches of law, Stephen's Commentaries are un- rivalled [ and we may. observe that these Commentaries should not be used merely as a book of reference, they should be carefully studied," -0 9- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.G. 5 -€> SIR T. ERSKINB MAY'S PARIiIAMENTARY PRACTICE.— Seventh Edition. A TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT. By Sir Thomas Eeskine May, K.C.B., Clerk of the House of Commons; Bencher of the Middle Temple. Seventh Edition, Revised and Enlarged. 8vo. 40s, cloth. Contents: — Book I. Constitution, Powers and Privileges of Parliament. — BooV. II. Practice and Proceediugs in I'ltrliameiit. — Book IH. The Manner of passintf Privute Bills^wiih the Staudiug Orders iu both Houses, and die most recent Pie- cedeuts. " Awork.whichhasrisen from the posi- tion of atext book into that of an authority, vould seem to a considerable extent to have passed out of the range of criticism. It is quite unnecessary to point out the ex- cellent arrangement, accuracy and com- pleteness u'hicn long' ago rendered SirT.li'. May's treatise the standard work on the law nf Parliament. !Not only are points of Parliamentary law discussed cr decided since the publicatioD of the Jast edition duly noticed in their places, but the matter thus added is well digested, tersely pre- sented and carefully interwoven with the text."— "So/wi/oM' JouTJial, " Fifty pages of new matter have been added by Sir Thomrs May in his sevpni-h edition, thus comprising every alteration in the law and practice of Parliaaient, and all material precedents relating to public and private business since the publicaiion of the sixth editiuu. We need make no com- ment upon the value of the work. 1 1 is an accepted authority and is undetiiablv the law of Parliament. Jt has been brouglit up to the latest date, and should be in ihe hands of every one engaged in Parlia- mentary life, whether as a laSvyer or as a senator," — Law Times. BUND'S IiAW OF SALMON FISHERIES. THE LAW relating to the SALMON FISHERIES of ENGLAND and WALES, as amended by " The Salmon Fishery Act,' 1873 ;'' with the Statutes and Cases. By J. W. Willis Buxd, M.A., LL.B., of Lincoln's Inn, Barrister at Law, Vice-Chairman Severn Fishery Board. Post 8vo. 15s. cloth. from the Thirteenth Annual Report of Inspector Bvckland on Salmon Fisheries, 1874. '* I would wish in this place to express my approval of * Bund's Law of Salmon Fisheries in England and ^ales, with Statutes and Cases.' This work will afford great assistance to those engaged in administering the law, while it affords valuable information on the theory and practice of Salmon legislation in gpneral-" j From the Thirteenth Annual Report of Inspector Walpole on Salmon Fisheries, 1874. " Mr. Willis Buod, the Draftsman of the new Act, has published an iriiportanc treatise on the whole of the Salmon Fishery Acts, which has already been accepted as a com- plete exposition of those Statutes.' ' noubiless all the Jaw will be found between his covers, and we have not been able to detect any erroneous statements. We can recommend the book as a disqui- sition.— it is conscientiouslv executed.' — ZaaJ Times. . ,, •* Mr. Bund, whose name is so well known to all who take interest in our Sal- mon fisheries, has lost no time since the passing of the Act of 1873 in bringing out his work on salmon fishery law. 1 hat the book, so far as England and Walcft are coLcemed, is a very complete and ex- haustive one, no one who knows Mr. Bund's clearness and power of application Will doubt. There is so much repeahng, and interpolating and altering, that the process of disinterment of the law to an unskilled hand becomes desperately be- wildering ; but with Mr. Bund's work at his elbow, the inquirer will find it tole- rably easy work, for Mr. Bund has with Kreit skill and labour done all the most troublesome work for him, and each point of law is marked out so that there can be nn difficulty ill underManding u, for not only are the points unravelled and dib- cuss^-d, but the cases which have come before the suiierior courts upon the various points are distinctly set forth, and the de- cision u|)on each m-^-de plain. i\lr. Bund has done the work excellently well, and nothing further in this way can be de- sired. "—'J'Ac field. " Theie is hapitily a good and ample index at the end of the volume. By means of this we have tested the author on vari- ous difficult points, and we have always found his ojiinion sound, and his explana- tions clear and lucid. 'Ihjs volume must of necessity become a handbook to salmoti fishers in general, and especially to tioards of conservators, who will thereby be much' flss'sted in the formation of the new boards nf conservators, under the Act of 1873: also the operation of the Acts of 1861 and 1865. as ann-nded by the Act of 1873."— Land and Water. 0- ©- LAW WORKS PUBLISHED BY HUNTER'S SUIT XN EQUITV.— Sixth Edition. An ELEMENTARY VIEW of the PROCEEDINGS in A SUIT IN EQUITY. With an Appendix of Forms. By S. J, Hunter, BA., of Lincoln's Inn, Barrister at Law. Sixth Edition by G. "W. Lawkance, MA., Bamster at Law. Post 8vo. 12», cloth. " There can be no better test of the value of this book than the fact that the sixth edition is now before the public. The first -u^as published in 1858. .so that it has "enjoyed the good fortune falling to very few legal works of passing through six editions in fifteen years. A student will find this edition as suitable to his w^nts as was the first edition."— -Law Ma-^azhie. " This book is so very well known, and has proved so extremely useful to law students and practitiuneTs, that we should only repeat what is familiar if we said any- thing in its praise. Edition after edition has been Issued as changes in tbe law have necessitated it, and Mr. Lawrance now sends the work forth annotated with all recent cases requiring notice to illustrate the text." — Lazo Times, " What greater testimony to the value of a Imok can we put forward than the bare fact that in fifteen years it has run through six editions, and that only two years and some few months have elapsed between the publications of the last two editions? • Hunter's Suit in Equity' is a work that every btudent for the Ctiancery bar must read,' and lis ]>npnlaritv is therefore rea- dily explained.''— Xtsw Journal. , We have so often noticed previous edi< tions of this useful work that it appears to be only necessary to say of this edition, that many recent decisi'ins have been noted and the text has been adapted to the alter- ations in practice and procedure introduced by the Chancery Funds Act, 18'3."— &/i ciiors' Journal. HUNT'S IiA^V OF FRAUDS AND BXI ject under discussion is very lucidly and accuraiely staled. We heartily con- gratulate him on the appearance of this woik, for which we anticip;ite a great success. There is hardly any portion of the law at the present day so important as that which relates to joint &^ock com- panies, and that this work will be the stand- ard authority on the subject we have not the shadow ot a doubt-" — Laa Journal- " After a careful examination of this work we are bound to say that we know of no other which surpasses it in two allimportdnt attributes of a lawbook: first* a clear conception on the part of the author of what he intends to do and how he intends to treat his subject ; and secondly, a constetent, laborious and order and method. All decisions are noted and epito>nised in their proper places, the piactice-decisionsin ihe notes to Acts and Rules, and the remainder in the introductory account or di-iest. In the digest Mr. Pitcairn goes into every- tliing with original research, and nothing seems to escape him. It is enough for us that Mr. Pitrairn's performance is able and exhaustive. NotiunKisomitted,and everything is noted at the proper place. In conclusion, we have gf'eat pleasoie in recommending this edition to the practitioner. "Whoever possesses it, and keep!} it noted up, will be armed on all parts and points of the law uf joint-stoth companies." — Solicitor li' Journal, " Although nominally a second edition of Mr. Shelford's treatise it is in reality an original work ; the form and arrange- ment adopted by Mr. Shelford have been changed, and, we think, improved, by Mr. Pitcairn. A full and accurate index also adds to the value of the work, the merits of which we can have no dnubt will be fully recognized by the (irotes- siou." — Law Magaxine. HEAIiES'S HISTORY AND LAVT OF PEWS. THE HISTORY and the LAW of CHURCH SEATS or PEWS. By Alfred Heales, F.S.A., Proctor in Doctors' Commons. 2 vols. 8vo. 16s. cloth. "The historical volume will be most interesting to tlie general reader, but the volume devoted to the law of the subject will be of great use to all persons— the clergy and churchwardens— who have anything to do with the administration of church affairs. It will also be found a valuable text-book by lawyers who are engaged in suits appertaining to the pew question. AltOfretherwe can commend Mr. ikeales's book as a well conceived and well executed work, which is evi- dence of the author's industry, talent and ifiarning."— ia«J Journal, 0- 12 LAW WORKS PUBLISHED BY GRANT'S BANKERS AND BANKING GOMPANIBS^ by R. A. Fisher. GRANT'S TREATISE on the LAW RELATING TO BANKERS AND BANKING COMPANIES. Third , Edition. M^'ith an Appendix of the Statutes. By R. A. Fisher, jisq., of the Middle Temple, Barrister at Law. 8vo. 285. cloth. '' " Eight years sufficed to exhaust the second edition of this valuable and standard 'work, we need only npw notice the improvements which have heen maae. We have once more looked through the work, and recognize in it Jhe sterling merits which have acquired for it, the high position which it liolds in standard legal literature. Mr. Fisher has annotated all the recent cases." — haw Times. , ""Prior to the publication of Mr. "Grint's work pn this subject, no trea- tise containing the required informal tion existed ;' and, since its appearance, Siuch important alterations respecting -t)a,nks and hankers have heen intro- duced, that the work needed in many S'^rts entire reconstruction and arrange- I'ent. The last two editions have been Entrusted to the care of the gentleman ivhose name is .attached to the work. Mr. Fisher's name is in itself a guaran- t^je that his duties of editor have been ably and conscientiously performed. Ih this respect we can assure those interested in the subject of this book, that they will in no respect be dis- appointed ; obsolete and immaterial matter has been eliminated, and the present edition presents the existing law'of bankers and banking companies as it at present exists." — Justice of the Peace, ** It is eight years since Mr. Fisher published the second edition of thia practical book, and it now appears again re-edited by the same hand. Its steady sale shows that the public for whom it is written have recognized the kindness that was meant them, and makes a more elaborate recommendation super- fluous. We must add, however, that the additions to the work, and the alterations in it 'v^hich Mr- Fishetih^s m'ade, are, as far as we can judge, real improvements, and that he has not failed to follow out the recent cases. The book used with care will no doubt be of great practical service to bankers and their legal advisers." — Solicitors* Journal. BAYIiIS'S LAW OF BOMESTIC SERVANTS^ liy Monckton. Fourtli Bdition. ' THE RIGHTS, DUTIES AND RELATIONS OF JlfOMESTlC SERVANTS AND THEIR MASTERS AND MISTRESSES. With a short Account of Servants' Institutions, &c., and their Advantages. By T. Henry Baylis, M.A., Barrister at Law of the Inner Temple. Fourth Edition, with Considerable Addi- tions, by Edward P. Monckton, Esq., B.A., Barrister at Law of the Inner Temple. Foolscap 8vo, 2s. cloth. and, a somewhat unusual feature in a lavvboofc, it also affords much .sensible advice, not of a strictly legal kind, both to servants and their employers. There are few solicitors who have not from time to tlihe to advise employers on their difficulties with their domestic servants. This volume will be found a convenient handbook to the leading authorities on the subject,"— iSo/jcaory JournaL "Mr. Monckton has edited a fourth Edition of Mr. Baylis's little work on 'The Rights, Duties and Relations of Domestic Servants and their Masters and Mistresses.* It has evidently lound great lavourwith the public and is an excellent manual of the subject of which, ■ 'it treats." — Law Times. • *' This little, work thoroughly de- serves the success it has gained. It c.ontains in a^small compass the law on the important subject to which it relates, &— —"- ■ -— — I ' Q j MESSRS. BUTTER WORTH, 7 FLEET STREET, E.C. 13 REDMAN ON ARBITRATIONS AND AWARDS. A CONCISE TREATISE on the LAW of ARBI- TRATIONS and AWARDS; with an Appendix of Precedents and Statutes. By Joseph Haworth Redman, of the Middle Temple, Esq., Barrister at Law, Author of " A Treatise on the Law of Railway Companies as Carriers." 8vo. 12s. cloth. "A singular feature in this work is, it will meet a demand both in the pro- that it has no foot notes, and this is a fession and amonyst lay arbitrators." — decidedrecummendation. Thearrange- SolicUm's' Journal. ment is good, the style clear, and the " We have no doubt hut that the ■work exhaustive. There is a useful ap- work will be useful. The precedents pendix of precfedents and statutes, and of awards are clearly and concisely a very good index."— iaw rimes. drawn. The arrangement of chapters ** Thisis likelyto prove ausefulbook is conveniently managed. The law is in practice. All the ordinary lawon th^ clearly stated, and, so far as we can subject is given shortly and in a con- judge, all the important cases bearing venient and accessible form, and the directly on the subject are given, while index is a good one. The boot is of a the index appears reasonably copious, portable size and moderate price, and These facts, combined with the small- contains a fairly complete appendix ness of the volume, ought to make the of precedents. It is likely enough that book'a success." — Law JournaL MR. JUSTICE LUSH'S COMMON LAW^ PRACTICE. By DIXON.— Third Edition. LUSH'S PRACTICE of the SUPERIOR COURTS of COMMON LAW at WESTMINSTER, in Actions and Proceedings over which they have a common Jurisdiction: with Introductory Treatises respecting Parties to Actions; Attornies and Town Agents, their Qualifications, Rights, Duties, Privileges and Disabilities; the Mode of Suing, whether in Person or by Attornej-, in Forma Puiiperis, &c. &c. &c.; and an Appendix, containing the authorised Tables of Costs and Fees, Forms of Proceedings and Writs of Execution. Third Edition. By Joseph Dixon, of Lincoln's Lin, Esq., Bavrister- at-Law. 2 vols. 8vo. 46s. cloth. DOWEIiIi'S STAMP DUTIES AND STAMP LAWS. A HISTORY and EXPLANATION of the STAMP DUTIES, containing Eemarks on the Origin of Stamp Duties, a History of the Duties in this Country from their commencement to the present time, Observations on the past and the present State of the Stamp Laws, an Explanation of the System and the Administration of the Tax, Observations on the Stamp Duties in Foreign Countries and the Stamp Laws at present in force in the United Kingdom ; with Notes, Appendices and a copious Index. By Stephen Dowell, M.A., of Lincoln's Inn, Assistant Solicitor of Inland Kevenue. 8vo. 12s, 6d cloth. — , _ _ ____ ,_Q i?t- 14 LAW WORKS PUBLISHED BY DOWi:i.I.'S INCOME TAX I.AAVS. THE INCOME TAX LAWS at present in force in the United Kingdom, witli Practical Notes, Appendices, and a copious Index. By Stephen Dowell, M.A., of Lincoln's Irin, Assistant Solicitor of Inland Revenue. 8vo 12«. &d. cloth. , ** 6nly men thorouB:hly conversant " We cannot doubt ihat the work ■will with the subject could have prepared it, prove of much service to persons en- and, despite Mr. Dowell'a knowledge, it gaged in the administration of the In- must have been a heavy labour. To come Tax laws, and to the practitioner commissioners, and all concerned in the on the points which frequently arise in ■working of the income tax, Mr. Dowell's reference to those laws." — Solicitori' book will be of great value." — Law Journal. Journal, SMITH'S PRACTICE OP CONVEYANCING. An ELEMENTARY VIEW of the PRACTICE of CON, VEYANCING in SOLICITORS' OFFICES, with an Outline of the Proceedings under the Transfer of Land and Declaration of Title Acts, 1862, for the use of Articled Clerks. By Edmund Smith, B. A., late of Pembroke Coll. Cambridge, Attorney and Sulicitor, Post 8vo. 6s. cloth. BEDPORD'S INTERMEDIATE EXAMINATION GUIDE. THE INTERMEDIATE EXAMINATION GUIDE, containing a Digest of the Examination Questions on Common Law, Conveyancing and Equity, with the Answers. By Edwakd Henslowe Bedford, Solicitor, Temple, Editor of the " Prelimi- nary," " Intermediate," and " Pinal," &c.. Vol. I. 8vo. 10s. Gd. Vol. II. 4s. *^* Jiy the same Author, Vol. II. of the above Work, price is. (The Work appointed by thei Examiner in Eqmty for 1874, isSayne'i Outlines of Equity.") " The students of the elements of law will find in Mr. Bedford's guide a useful and reliable friend." — Lav! Times. LEW^IS'S INTRODUCTION TO EQUITY DRAFTING. PRINCIPLES of EQUITY DRAFTING, with an APPENDIX of FORMS. By Hubert Lewis, B.A., of the Middle Temple, Barrister-at-Law, Author of " Principles of Conveyancing explained and Illustrated." Post 8vo. 12s. cloth. »»* This Work, intended to explain ffie general principles of Equity Drafting, as well as to exemplify Pleadings of the Court of Chancery, will be useful to lawyers resortr ing to the New Equity Jurisdiction of t?ie County Courts. " Practically the rules that apply, to the Courts will be a nia."s of uncertainty,— dratting and reading uf bills will apply to with it every practitioner must learn the tne composition of the County Courtdocu- art of equitv draJting, and he will find no ment that will be substituted for the bill. better teacher than Mr. Lewis."— £a» Mr. Lewis's work ia therefore likely to Timeji. have a much wider circle of readers thin " We have little doubt that this work he could have anticipated when he com- will soon gain a very favoui-able place m menced it, for almost every page will be the esiimation of the Profession. Jc is applicable to County Court Practice, written in a clear and attractive style, and should the bill, in any shape or under any is ulaioly the res-ilt of much thoughtful title be retained in the new jurisdicLion,- and conscientious labour." — Lajo Maga. without it we fear that equity in the County zine antt Review.- i)r MESSRS. BUTTERWORTH, 7 FLEET STREET, E.G. J 5 IiETVIS'S INTRODUCTION TO CONVEYANCING. PRINCIPLES of CONVEYANCING EXPLAINED and ILLUSTRATED by CONCISE PRECEDENTS. Withan Appendix on the Effect of the Transfer of Land Act iivModifying and Shortening Conveyances. By Hubert Lewis, B. A,, late Scholarof Emman.Coll. Cambridge, of the Middle Temple, Barrister-at-Law. 8vo. ISs. cloth. ** Mr. I,ewis is entitled to the ciedit of havio^ produced a very useful, aud, at the same time, original work. This will appear from a mere outlnie of his plan, which is very ably worked out. 'J'he manner in which his dissertations elu- cidate his subject is clear and prac- tical, and his expositions, vith the help of his precedents, have the best of alt qualities in such a treatise, being eminently judicious and substaniial, Mr. Lewis's work is conceived in tlie ri^ht spirit. Although a learned and goodly volume, it. may yet, witli perfect propriety, be called a 'handy book.' It is besides a courageous attempt at legal improvement,: and it is, perhaps jDy works of such a character that law reform may be best accomplished." — Law Magazine and Review. ** By the diligent and painstaking stu- dent who has duly mastered the law of property, this work will undoubtedly be iiailed as a very comprehensive exponent of the Principles of Conveyancing." — Leguleian, vt Articled Clerks' Magazine. " The perusal of the work has given us much pleasure. It shows a tliorough knowledge of the various subjects treated of, and is clearly and intelligibly written.' Students will now not only be able to become pioGcient draftsmen, but, by care- fully studying Mr. Lewis's dissei tat ions, may obtain an insight into the hitherto neglected Principles of Conveyancing." • — Legal ExainineTt *' On the whole, we codsider that the work is deserving of high praise, both for design and execution. It is wholly free from the vice of bookmak'ing, and indicates cnusiderable reflection and learning. Mr. Lewis has at all events succeeded in producing a work to meet an acknowledged want, and we have no doubt he will find many grateful readers amongst more advanced, noc less than among younger students." — Solicitors' Journal and Heporter, *• Mr. Lewis has contributed a valuable aid to the law student- lie has condensed tlie Practice of Conveyancing into a shape that will facilitate its retention on the memory, and his Precedents are usefully arranged as a series of progressive lessons, which may be either used as illustrations ur exercises." — Law Times, BUIiLEY AND BUND'S NEW BANKRUPTCY MANUAli. A MANUAL of the LAW an4 PRACTICE of BANK- RUPTCY as Amended and Consolidated by the Statutes of 1869: with an APPENDIX containing the Statutes, Orders and Forms. By John F. Bullev, B.A., and J. W. Willis-Bund, M.A., LL.B., Barristers- at-Law. 12mo. 16s. cloth. With a Supplement including the Orders to April, 1870. -«* The Supplement may le had separately y Is. sewed. *' This is a treatise, not an edition of the acta, and where the law is to a large extent new, this is the best, though the most troublesome, mode of dealing with it. A very complete index makes the work all that the practitioner, be he bar- rister or solicitori can require."— Zaw Tijnes. BAINBRIDGE ON MINES.— Third Edition. A TREATISE on the LAW of MIN ES and MINERALS. By William Bainbridgk, Esq., F.G.S., of the Inner Temple, Barrister at Law. Third Edition, carefully revised, and much enlarged by additional matter relating to Rights of Way and Water and other Mining Easements, the Construction of Leases, Cost Book and General Partnerships, Injuries from Undermining and Inunda- tions, Barriers and Working out of Bounds and Disputes with Work- men. With an Appendix of Forms and Customs, and a Glossary of , English Mining Terms, 8vo, 30.s, cloth. "After an interval of eleven years we have to welcome a new edition of Mr. Bainbrid^e'swork on Mines and Minerals, It would be entirely superfluoaa to attempt a general review oi a work which has for ^so long a i)erio(J, occupied the position of the standard woik o;i this inipartant sub- ject. Those only who. by the natn^-e of their practice, have learned to lean upon Mr. Uainbridgc as on a solid staff, can appreciate the deep research, the admirable method, and the graceful stjle of this tnodel treatise.' ThereCore we are merely reduced to the enquiry, whether the law has, by force of statutes and of judicial decisions, undergone such develoi)Difeiit, modification or change since the year 1856 AS to justify a new edition ? That question may be readily answered in the affirmative; and (he additions and corrections made in the volume before us furnish ample evi- dence of the fact. It may be also stated that this book, being priced at 30^., has.the exceptional character of being a cheap law publication." — Law Journal. "Mr. Bainbridge was, we believe, the first to collect and publish, in a separote treatise, the' Law of Mines and Minerals, and the work was so well done that bis volume at once took its place in the law , library as the text book on the subject to which it was devoted. This work must be already familiar to all readers whose l)raciK-e brings^ tjiem in any manner in connection with mines or mining, and they well know its value. We can only say of this new edition that it is in all respects worthy of its predecessors."— Xaiu Times, MOSEIiY'S ARTICIiED CLERKS' HANDY BOOK. A PRACTICAL HANDY BOOK of ELEMENTARY LAW designed for the use of ARTICLED CLERKS, with a course of Study, and Hints on Reading for the Intermediate and Final Examinations. By M. S. Mosely, Solicitor, Clifford's Inn Prizeman, M,T. 1867. 12mo. 7s. cloth. of their articles. . The style of this book is peculiair: it is an exaggeration of the style adopted by Mr. Hayues in his admirable * Outlines of Equity.' The author seems to think the adoption of such a style the only way to mak^ the study of the law Sopular, and we are not prepared to say e is wrong." — Law Magazine 'and RevisiB. ** Roth parts are well worked out, and wil"! be found useful ; but in the second division of each chapter the law studmt will find most vaiuible information, as there Mr. Moselv not only marks out the course of reading which he recommends for each year, but ^'so carefully analyses the con- tents of each book, and points out those chapters and subjects which it will be most advantageous for the student to master at the first reading, and thoSe whi< h heought to defer till a second perusal and a wiilcr experience have made him niore competent to uniierstandthem. The style is remark- ably, good."— iriVi Law Times, " Mr. Mosely's little book' might be placed with advantage in the hands of students about to enter a soliciiur's otTice. It will tell the;n many things, simple enough, no doubt, but still things of which in n^ost cases they will be ignoraut,'and for want of knowing which they might otherwise lose much time; and will afford them useful directions as to a course of reading." — Solicitors* Journal. '* To some extent his plan is new, and the novelty consibts in this, that he sketches out a course of work and study for each year's pupilage. 1 his plan is no doubt the one Mr. Mosely sketched out for him- self when a clerk, and followed up with so much success, '1 o those who really will work from the .commencement of their pupilage and carry on their labours steadily and systematically to the end it will be ustful.''— Law Examination Re- porter. " I'his useful little book is intended for the use of articled clerks daring the period T MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 17 PHIIiIiIMORE'S COMMENTARIES ON INTERNATIONAIi IiAW. COMMENTAEIES on INTEENATIONAL LAW. By the Right Hon. Sir Robert Phillimore, Knt., no-vv Judge of the High Court of Admiralty of England. 4 vols., 8vo. cloth. »«* Vol.1 1 second edUioriy price 2&$.^ Vol. 2, second edUion^price 28.?., Yah 3, second edition^ price 3&s. Vol. 4, second edttiqn, may be had separately to complete sets. Extract from Pamphlet on '^'American Neutraliiy" 5y George Bemis {Boston, U.S.). — "Sir Robert Phillimore, the present Queen's Advocate, and author of the most comprehensive and systematic * Commentaries on International Law ' that England has produced." '* The authority of this work is admit- tedly great, and the leamiDg and ability displayed in its preparation have been recoeniz'ed by writers on public law both on the Continent of Europe and in the United States. With this necessarily im- perfect sketch we must conclude our no- tice of the first volume of a work which forms an important contribution to the lite- ratare of public law. The book is of great utility, and one which should fioil a place in the library of every civilian."— iaw Sdegazine. " We cordially welcome a new edition of vol. 1. It is a work that ought lo be studied by every educated man, and which is of constant use to the public writer and statesman. "We wish, indeed, that our pub- lic writers would read it more abundantly than they have done, as they would then avoid serious errors in discussing foreiKn questions. Any general criticism ofa book which has been received as a standard work would be superfluous; but we mty remark that whilst Sir Robert strictly ad- heres 1 1 the canons of legal authorship, and never gives a statement without an au- Choritv or offers a conclusion which is not manifestly deduciblefrom established facts or authoritative utterances, yet so lucid is his style, we had almost said so popular. so clear is the enunciation of principles* so graphic the historical uorttons, that the book ma? be rend with pleasure as well as profit. It will not be out of place to fur- ther remark that the arrangement is ex- cellent, the tnble of contents, the list of authorities are complete, aud. therefore, these Commentaries are sin^uUrl:^ handy tor refereoce. Altogether this work is a witness to the zeal, indnstry and ability of Sir R. Phillimore. ItwiUnot only be read at home, but also in the United States, and it cannot fail to .smooth the way for the thorough international understanding be-' tween Kngland nnd America that the true men of both countries so ardently desire." — Law Jovrnal. " It is the most complete repository of Dintters bearing upon international law that we have in the language. We need not repeat the commendations of the text itself as a treatise or series of treatises which this journal expressed upon the appearance of the two fist volumes. The reputation of the Author is too well established and too widely known. We content ourselves with testifying to the fulness and thoroughness of the work as a compilation after an inspection of the three volumes (second edition)." — Boston (.United Staies'i Daily AdvcTtiser. DAVIS'S LAW or MASTER AND SERVANT. THE MASTER AND SERVANT ACT, 1867: with an Introduction, Notes and Forms, Tables of Offences, and an Index, By James Edward Davis, Esq., Barrister at Law, Stipendiary Magistrate for Stoke-upon-Trent. 12nio. 6s. cloth. »,* Besides tjie Act and copiozis J^otes, Introdu^ion, and a variety nf Forms of Sum- monSt Orders, Convictions, Recognizances, ttc, spe/ciaflp prepared for this work. Tables have been framed classifying all the offences within the jurisdiction of Jus- tices. It is h^ed th tative exponent of the points ofwhich be the practitioner."— iwic Magaxme, I 24 LAW WORKS PUBLISHED BY j GHASVriCK'S PROBATE COURT MANUAL. EXAMPLES of ADMINISTRATION BONDS for the COURT of PROBATE ; exhibiting the principle of various Grants of Administration, and the correct .mode of preparing the Bonds in respect thereof; also Directions for preparing the Oaths; arranged for practical utility. With Extracts from Statutes; also various Forma . of Affirmation prescribed by Acts of Parliament, and a Supplemental Notice, bringing the Work down to 1865. By Samuel Chad wick, of Her Majesty's Court of Probate. Royal 8vo. 12.?- cloth. "Weundertaketosa:^ that the possession on a(Countofihe defective filling up of of tHis volume by practitioners will prevent such instruments." — Solicitors^ Journal. many a hitch and awkward delay ,Jirovok- " Mr. Chad wick's volume will beaneces- iug- to the lawyer himself aud aifficult to sary part of the law library of the practi- be satisfactorily explained to the clients." tioner, for he has collected precedents that —Lazo Magazine and Review. are in constant requirement. This is purely "The work is principally designed to a book of practice, but therefore the more save the profession the necessity of obtain- valuable. It tells the reader what to^ do, log at the registries information as to the and that is the information most required preparing or filling upof bunds, and to pre- after a lawyer begins to practise." — Lata vent grants of administration and adminis- Timet, tratioawith the will annexed beingdelayed ORTOLAN'S ROMAN IiAW, Translated by PRICHARD and NASMITH. The HISTORY of ROMAN LAW, from the Text of Ortolan's Histoire de la Legislation Romaine et Generalisation du Droit (edition of 1870), Translated, with the A.uthor's permission, and Supplemented hy a Chronometrical Chart of Roman History. By r. T. pRicHARD, Esq., F.S.S., and David Nasmith, Esq , LL.D., Banisters at Law. 8vo. 28s. cloth. " We know of no work, which, in our to that great work, it is enough to say, opinion, exhibits so perfect a model of that English writers have been, con- 'what a text-book ought to be. Of the tinually in the habit of doing piecemeal translation before us, it is enough to say, what Messrs. Prichard. and Nasraith that it is a) faithful representation of have done wholesale. Hitherto we have the original." — Law Magaeine. had but gold dust from the mine; now "Thistranslation, from its greatnierit,- ' we are fortunate in obtaining a large deserves a warm reception i^om all who nugget. Mr. Nasmith is already known desire to be acquainted with the history as the designer of a chart of the history and elements of Roman law, or have its of England, which has been generally interests as a necessary part of a sound approved, and bids fairly for extensive le^al education at heart, With regard adoption." — Lim Journal. GAIUS' ROMAN IiATV.— By Tomkins and I«emon. / {Dedicated by permission, to Lord Chancellor ffatlKrley.) THE COMMENTARIES of GAIUS on the ROMAN LAW: with an English Translation and Annotations, By Frederick J. ToMKiNS, Esq., M .A., D.C.L., and William George Lemon, Esq., LL.6., Barristers-at-Law, of Lincoln's Inn. 8vo, 27s. extra cloth. " We feel bound to speak in the highest the thanks of those who take an interest terms of the manner iu which Mr.Tomkins iu legal literature."— -&/»«(««' Journal. , and Mr. Lemon have executed their task. " The translation is carefully^ executed We unhesitatingly recommend its careful aud the annotations show extensive know- perusal to all studeucs of Roman Law/'-r- ledge of the Roman Law."— ^^AfRceum. Laro Magazine. " One of the most valuable contributions " The authors have done a good service from an English source to our lf«al to the study of Htfiqan Law, and deserve literature which the last half-century has Witaes^edJ'^—Edindurg/t Evening Conrant^ S IiAW OP TORTS. A SUMMARY OF THE LAW OF TORTS, OR WRONGS INDEPENDENT OF CONTEACT. By Arthur Undeehill, B.A., of Lincoln's Inn, Esq., Barrister at Law. Post 8vo. 6«. clotli. " He has set forth the elements of the " The plan is a eood one and has been law with clearness and aceuracy. '1 h« honestly carried out. and a good index little work of .Mr. I'nderhill is inexpensive facilitates reference to the contents of the and may be relied on." — iaw Times. hook."— Justice of t/te Peace, KERR'S ACTION AT LAW.— Third Edition. An ACTION at LAW: being an outline of the JURIS- DICTION of the SUPERIOR COURTS of COMMON LAW, with an Elementavy View of the Proceedings in Actions therein. By Robert Malcolm Keru, LL.D., Barrister at Law ; now Judge of the Sheriff's Court of the City of London. The Third Edition. 12mo. 9s. cloth. CLIFFORD 8c STEPHENS' REFEREES' PRACTICE, 1873. THE PRACTICE of the COURT of REFEREES on PRIVATE BILLS in PARLIAMENT; with Reports of Cases as to the Locus Standi of Petitioners decided during the Sessions 1867-72. By Frederick Clifford, of the Middle Temple, and Pembroke S. Stephen?, of Lincoln's Inn, Esquires, Barristers at Law. 2 Vols. Royal 8vo. 3/. lOs. cloth. •»* Vol. 2, Part 2, containing Cases of tJie Sessions 1871 and 1872, separately, 30«. sewed. " The history and practice of tlie sub- portant part of the volume, are given ject are detailed tersely and accurately, with fulness and accuracy, so far as we and in a very intelligible manner, in tlie can judge, and are of themselves a suth treatise. To counsel or agents engaged cient recommendation to the volume.'' — in parliamentary practice the -work will Lav) Journal. prove extremely serviceable."— So/ic;Vorj' •' Clifford and Stephens, the authority Journal. now universally quoted and relied on in " The reports, forming the most im. this (Referees'j Court."— DaiVy News. LATHAM ON THE LAW OF WINDOW LIGHTS. A TREATISE on the LAW of WINDOW LIGHTS. By Francis Law Latham, of the Inner Temple, Esq., Barrister at Law. Post 8vo. 10s. cloth. "Tliis is not merely a valuable addition The work in our opinion is both per- to the Uw library of the practitioner, it spicuous and able, and we cannot but is a book that every law student will read compliment the author on it." — Zom with profit. It exhausts the subject of Journal. which it treats." — Laa Times. "A treatise on this subject was wanted, "His arrangement is logical and he and Mr. Latham liassucceeded innieeting discusses fully each point of his subject, that wti^U" —Atlienmm. ©- Cr- 26 LAW WORKS PUBLISHED BY ROUSE'S CONVEYANCER, WITH SUPPLEMENT, 1871. Third Edition. The PRACTICAL CONVEYANCER, giving, in a mode combining facility of reference with general utility, upwards of Four Hundred Precedents of Conveyances, Mortgages and Leases, Settle- ments, and Miscellaneous Forms, with (not in previous Editions) the Law and numerous Outline Forms and Clauses of Wills and Abstracts of Statutes affecting Real Property, Conveyancing Memoranda, &c. By RoLLA Rouse, Esq., of the Middle Temple, Barrister at Law, Author of '* The Practical Man," &c. Third Edition, greatly enlarged. With a Supplement, giving Abstracts of the Statutory Provisions affecting the Practice in Conveyancing, to the end of 1870; and the requisite Alterations in Forms, with some new Forms; and including a full Abstract in numbered Clauses of the Stamp Act, 1870. Two vols. 8vo. 30s. cloth. ** The Sicpplement may be had separaiely, price Is. &d. sewed. "The best test of the value pf a book written professedly for practical men is tbe practical one of the number of edi- tions through which it passes. The fact that this well-known work has now reached its third shows that, it is coubidered by those for whose convenience it was written to fulfill its purpose well."— iaa) Magazine. ** This is the third edition in ten years, a proof that practitioners have used and approved the precedents collected by Mr. house, lu this edition, which is greatly enlarged, he has for the first time intro- duced Prf cedents of Wills, extending to no less than ll6 pattes. We ran accord uumingled praise to the conveyancing me- moranaa snowing the practical effect of the various statutory provisions in the diifereut parts of a deed. If the two pre- ceding editions have been so well received, the welcome given to this one by the pro- fession will be heartier still." — iaw Times, " So far as a careful perusal of Mr, Rouse's book enables us to judge of its merits, we think that as a collection of precedents of general utility in cases of common occurrence it will be found satis- factorily to stand the application of the test. The draftsman will find in the Practi- cal Conveyancer precedents appropriate to all instruments of common occurrence, and the collection appears tu be especially well supplied with those which relate to copy- hold estates. In order to avoid useless repetition and also to make the precedents as simple as possible, Mr. Rouse has sketched out a number of outline drafts so as to present to th<> reader a sort of bird's- eye view of each instrument and show him its form at a glance. Each paragraph in these outline forms refers, by distinguish- ing letters and numbers, to the clauses iu full req.uired to be inserted in the respec- tive parts of the instrument, and which are given in a subsequent part of the work, and thus every precedent in outline is made of itself an index to the clauses which are necessary to complete the draft. In order still further lo simplify the arrange- ment of the work, the author has adopte4' a plan (which seems to us fully to answer its purpose) of giving the variations which may occur iu any instrument according td the natural order of its different parts."— Ijazo Journal. "That the work has found favor is proved by the fact of our now having to review a third edition. This method of skeleton precedents appears to us to be at- tended with important advantages. Space is of cturse saved, but besides this there is the still more important consideration that the draftsman is materially assisted to a bird's-eye view of his draft. Every- one who has done much conveyancing work knows how thoroughly important, nav, how essential to success, is the for- mation of a clear idea of the .icope and^ framework of tbe instrument to be pro- duced. To clerks and other young hands a course of conveyancingunder Mr. Rouse's auspices is, we think, calculated to prove very instructive. To the solicitor, espe- cially the country practitioner, who has often to set his clerks to work upon drafts of no particular difficulty to the experi- enced practitioner, but upon which ihey the said clerks are not to be quite trusted alone, we think to such gentlemen Mr. Rouse's collection of Precedents is calcu- lated' to ji rove extremely serviceable. We repeat, in conclusion, that solicitors, espe, cially those practising in the country- will find this a Mseinl work."— Solicitors* Journal, ^- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 27 SAUNDERS' ZtA^V OF NEGLIGENCE. A TREATISE on the LAW applicable to NEGLI- GENCE. By Thomas W. Saunders, Esq., Barrister at Law, Recorder of Bath. 1 vol. post 8vo. 9s. cloth. **The book is Bdmirable ; while small in bulk, it coutaiDs ever^thmg that is oeces- sary, and its arraii^emeat is such that oiie can readily refer to it. Amongst those who have done a good service iMr. Sauoders will find a place"— £«w Magasine. " We fiua very considerable diligence displayed. The references to the cases are given mnch more fully, and on a more rational sy&tem than is common with text- book writers. He has a good index."— Solicitors* Journal. " The recorder of Bath has rendered good service to the profession, and to the more iDtelligeuc section of the general public, >by the production of the carefully prepared and practically useful volume now under notice. Ai a. work of reler- ence.the book will be very welcome in the office of the solicitor or in the chambers of the barnsier." — Monting Advertistr. ** Mr. T, W. Saunders is well known as a large coniribuior to legal literature, and all his works are distinguished by pains-taking and accuracy, 'J his one is no txception.and the subject, which is of very extensive interest, will ensure lor it a cor- dial welcome from the profession." — Law Times. "As scarcely a day passes in which claims are not made, and actions brought, for compensations for ii)juries from neglect of some kind, a short and clear treatise like the present on the law relating to the subject I ught to be welcomed It is a mo- derate size vulume, and makes references to all the authorities on the question easy." — Standard, DIXON'S IiAW OF PARTNERSHIP. A TREATISE on the LAW OF PARTNERSHIP. By Joseph Dixon, of Lincoln's Inn, Esq., Barrister at Law, Editor of " Lush's Common Law Practice." 1 vol. 8vo. 22s. cloth. •' lie has evidently bestowed upon this book the same conscientious labour and painstaking industry for which ue had to compliment him some months since when reviewinghiseditionof* Lush's Practice of the Superior Courts of Law,' and. as aresul t, he has produced a clearly written and well- arranged manual upon one of the most im- portant branches of our mercantile law." Imw Journal. " Mr, Uixon has done his work well. The book is carefully aod usefully i>Te- pareA.'^—Soiicitors* Journal, ** w-eheartiiy recommend to practitioners and students Mr. Dixon's treatise as the best exposition of the law we have read, for the arrangement is not only artistic, but concisene.ts has been studied without sacrifice of clearness." — Law Times. *' Mr. Lindley's view of the subject is that of a philosophical lawyer. Mr. Dixon's is purely and exclusively prac- tical from beginning to end. We imagine that very few questions are likely to come before the practitioner wbich Mr. Dixon's book will not be found to solve. We have only to add, tbat the value of the book is very materiiilly increased by an excel- lentmarginalsummary and avery copious index." — Lav} Magaaine and Review, MICHAEIi & 'WILL'S LAW OF GAS AND WATER SUPPLY. THE LAW OF GAS AND WATER SUPPLY, com- prising the Rights and Duties as well of Local Authorities as of Private Companies in regard thereto, and including the Legislation of the last Session of Farliament. By W, H. Michael and J, Shiress Will, of the Middle Temple, Esquires, Barristers- at- Law- Post 8vo, J Ss. cloth. "As to the steps to be taken to place "We can thoroughly recommend the matters on a proper basis, we refer those work to those who require guidance on interested to the «*ork o* Messrs. Michael the subject." — Solicitors Journal. and Will, where all the rightsand liabilities " We can safely say that this is anho^jiest of companies under the acts are fully sec and a successful attempt to deal with the forth, and we feel thoroughly justified in laws affecting gas and water supiJly."— recommending the volume." — Law Times, Law Journal. Sf- ■bT" 28 LAW WORKS PUBLISHED BY POW^ELL'S LAW OP INLAND CARRIERS.— Second Edition. THE LAW OF INLAND CARRIERS, especially as regulated by the Railway and Canal Traffic Act, 1854. By Edmund Powell, Esq., of Lincoln College, Oxon, M.A., and of the Western Circuit, Barrister at Law. Author of '* Principles and Practice of the Law of Evidence." Second Edition, almost re-written. 8vo. 14s. cloth. '* The treatise before us states the law of riers."— Xaw Times. which It treats ably and clearly, and con- " The subject of this treatise is not indeed tains a good iuditx.*'— Solicitors^ Journal. a larpe one, hut it has been KOt up by Mr, ." Mr. Powell's writing is singularly pre- Powell with considerable care, and contains cise and condensed, without being at all dry, ample notice of the most recent cases and as those who have read his admirable Book authorities." — Jurist. of Evidence will attest. It will be seen, "The two chapters on the Railwaj' and from our outline of the contents, how ex- Canal Traffic Act, 1856,are quite new, and, haustivelvthe subjecthasbeei) treated, and the recent cases under the provisions of that it is entitled to be that which it aspires that statute are analyzed in lucid lau- to become, the text book on the law of Car- guage." — Law Magazine. WOOLRYCH ON SEWERS.— Third Edition. A TREATISE on the LAW OF SEWERS, including the Drainage Acts. By Humphry W. Woolrych, Serjeant at Law. Third Edition, with considerable Additions and Alterations. 8vo. 12s. cloth. " Two editions of it have been speedily been added to the literature of the profes- exhausted, and a third called for. The sion. It is a woik of no slight labour to author is an accepted authority on all sub- digest and arrange this mass of legislatioa jects of this class."— iaaj 'limes. — this task, however, -Mr, SerjeantWooI- '_' This is a third and greatly enlarged rych has undertaken, and an examination edition of a book which has already ob of hi3 book will, we think, convince the tained an established reputation 3,5 the most most exacting that he has fully succeeded, complete discussion of the subject adapted JNo one should attempt to m'eddle with the to modern times. Since the treatise of Mr, Law of Sewers without its help,"— &)/<- Serjeant Callis in the early part of the 17th ciiors' JournaL century, no work filling the same place has TOIVEKINS AND JENCKEN'S MODERN ROMAN LAW. COMPENDIUM of the MODERN ROMAN LAW. Founded upon the Treatises of Puchta, Von Vangerow, Arndts, Franz Mohler, and the Corpus Juris Civilis. By Frederick J. ToMKiNs, Esq., M.A., D.C.L., Author of the " Institutes of Roman Law,'* Translator of "Gains," ike, and Henry Diedrich Jencken, Esq., Barristers at Law, of Lincoln's Inn. 8vo. 14s. cloth. "Mr. Tomkins and Mr. Jencken piece of terse and forcible expression; could not have written such an excel- ambiguity there is none, prolixity none, lent book as this if they had not devoted from the beginning to the end we do not many laborious days, probably years, know that we should wish one sentence to the study of the Roman Law in its or one word expunged, and we have entirety, and to research into the laws of never had to pause to discover the mean- continental States for the purpose of ing of our authors. If the saying, that learning what principles of Roman Law clearspeakingistheresultofcIeanhinkT are preserved in their jurisprudence." — ing be at all worthy of reception, we Law T^me.j. should say that the present wOrk ia the _" We bplieve it is the first work of the result of much honest labour and pro- kind thai, has appeared in oar language, found learning." — Journal of Jurispru- and on that ground alone we should hold dence of Scotland. it entitled to a hospitable reception. The "This is a valuable book, and one style is, to our mind, characterised by a that ought to be in the hands of every precision, a terseness, and, still more magistrate in India, As the basis of all wonderful, an exhaustiveness rarely to our modern law and justice, we com- be met with in law books of any class. mend this Modern Roman Law to our Such is the book— throughout a master- readers."— ^r/end of India. ^' »- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C, 29 DAVIS'S LA^V OP REGISTRATION AND ELECTIONS. A MANUAL of the LAW of REGISTRATION and ELECTIONS : with a SUPPLEMENT comprising the Cases on Ap- peal, ] 868-1869 ; the Rules and Cases relating to Election Petitions ; the Poor Rate Assessment Act, 1869 ; and a complete Index to the whole Work. By James Edward Davis, Esq., Barrister at Law. I2mo. 15s. cloth. *»* The SUPPLEMENT may be had separately, price 3s. sewed. *' A work -whicli in our judgment is " He has done well. In its way, Mr. the handiest and most useful of the Davis's work will be exceedingly useful, 'manuals* which the Reform Act of for it is edited with his usual care, printed 1 867 has brought into existence." — Law in excellent style, and published in a Magazine, most convenient form." — Law Times. ^, " We think this the best of the now « « i,, c .v i e numerous works on this subject."- „'/" ?*'.= ™"'S' ^? °, ""^ '"^ Solicitors- Journal. representation."-Sa»&': and that act, and the subseQueot Act of 1865, are given at length in the Appendix. We notice also as an im- provement in printing the Bankruptcy Act and Rules, that reference is made at the end of each section and rule to the pages of the text where the subject of such sec- tion or rule is discussed. 'J'he index to the mine it, is a remarkably good one. on the whole we have no hesitation in saying that tlie author has considerably improved an originally meritorious and useful book»- which we recommend very heartily to the profession at large." — Solicitors* Journal. " We must take advantage of the best guide we can find to help us along in the dark and dubious ways of bankruptcy law, and Mr. Kobson is undoubtedly one of the best guides we can find. It is with great pleasure that we learn from the preface to, this work that the first edition of this work was well received, and that it achieved the success it so well deserved. , Mr. Robson has continued studying the subject, and has kept himself up in the lav ' upon which he writes. He has also added to this new edition a chapter on ' The Bills of Sale Act, 1854,' which cannot but be useful to his readers. The book itself is now so well known to the profession that we need not dwell upon its proved * merits, its careful preparation, greatlea-n- ine, and skilful arrangement." — iMit Magaziiie, HUNT'S BOUNDARIES; FENCES AND FORESHORES. Second Edition. A TREATISE on the LAW relating to BOUN- DARIES and FENCES, and to the Rights of Property on the Sea Shore and in the Bed of Public Rivers and other Waters- Second Edition. By Arthur Joseph Hunt, of the Inner Temple, Esq., Barrister at Law. Second Edition. 12mo. 12s, cloth. "There are few more fertile sources of litigation than those dealt with in Mr. Hunt's valuable book. It is suffi- cient here to say that the volume ought to have a larger circulation than ordi- narily belongs to law hooks, that it ought to be found in ev jry country gentleman's library, that the cases are brought down to the latest date, and that it is care- fully prepared, clearly written, and well edited.'* — Law Magazine. " It speaks well for this book, that it has so soon passed intoasecondedition. That its utility has been appreciated is shown by its success. Mr, Hunt has availed himself of the opportunity' of a second edition to note up all the cases to this time, and to extend considerably some of the chapters, especially that which treats of rights of property on the seashore and the su-bjects of sea walls and commissions of sewers." — Zaw Times. ** Mr. Hunt chose a good subject for a separate treatise on Boundaries and Fences and Rights to the Seashore, and we are not surprised to find that a second edition of his book has been called for. The present edition contains much new matter. The chapter espe- cially which treats on rights of property on the seashore, which has been greatly extended. Additions have been also made to the chapters relating to the fencing of the property of mine owners and railway companies. All the cases which have been decided since the work first appeared have been introduced in their proper places. Thus it will be seen this new edition has a considerably enhanced \alue."-~Soticitors' Journal. ©- MESSRS. BUTTERWORTH, 7 FLEET STREET, B.C. 31 TUDOR'S CHARITABIiE TRUSTS.— Second Edition. THE LAW of CHARITABLE TRUSTS; with the Statutes, inchiding those to 1869, the Orders, Regulations and Instruc- tions issued pursuant thereto, and a Selection of Schemes, with Notes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister-at- Law, Author of ' Leading Cases in Equity.' Second Edition, contain- ing all the recent Statutes and Decisions. Post 8vo. IBs. cloth. " No livine writer is more capable than The main feature of the work is the manner Mr. Tudor or producing such a work : his in which Mr. Tudor has dealt with all the Leadine Cases in Kquity, anil alto on the recent statutes relating to this subject," — L'lw of Heal Hroperty, have deservedly Solicitors' Jortrnal. earned for him the higliest reputation as a " Mr. Tudor's excellent little book on learned, careful and judicious t3xt-writer. Charitable Trusts." — Lavj Times. DAVIS'S CRIMINAIi IiATV CONSOIiIDATION ACTS. THE CRIMINAL LAW CONSOLIDATION ACTS, 1861 ; with an Introduction and practical Notes, illustrated by a copious reference to Cases decided by the Court of Criminal Appeal. Together with alphabetical Tables of Offences, as well those punish- able upon Summary Conviction as upon Indictment, and including the Offences under the New Bankruptcy Act, so arranged as to present at one view the particular Offence, the Old or New Statute upon which it is founded, and the Limits of Punishment; and a full Index. By James Edward Davis, Esq., Barrister-at-Law. 12mo, 10s. cloth. HERTSIiET'S TREATIES. HERTSLET'S TREATIES of Commerce, Navigation, Slave Trade, Post Office Communications, Copyright, &c , at present subsisting between Great Britain and Foreign Powers Compiled from Authentic Documents by Edward Hertslet, Esq , Librarian and Keeper of the Papers of the Foreign Office. 12 vols. Svo. lit. 5s. boards. •,* Fol. 1, price 12s.; Fol. 2, price 12s.; Vol. 3, price 18s.; Fol. 4, price 18s. ; Vol. 5, price 20s. ; Vol. Q, price 25s.; Vol.1, price SOs.; Vol. S, price 30s. ; Vol. 9, price 30s.; Vol. 10, price 30s.; Vol.11, price 30s. \ Vol. 12, price 40s., may he had separately to complete sets. Vol. 12 includes an Index of Subjects to the Twelve published Volumes^ which Index is also sold separately, price 10s. cloth. List op Subjects:— Aliens— Army— Bankruptcy— Births Abroad— Boundaries— Bro- kers— Burial (irounds Abroad— Chapels, I haplains, &c.. Abroad— Claims— Coal — Coasting Trade— Collisions at Sea— Colonial— Commerce and Navigation (Treaties, aic.)— Consuls — Copyright— Criminals : Murder- Currency — IJeaths Abroad— 1 'e- seners— Diplomatic— Duties: Vessels and Cargoes— Emigration and Immigration — Enlistments — Extradition — Kactories— Usheries, &c.— Flags— Free Pons— Govern- ment— Jurisdiction— Justice— Labourers-Law- Light Uues, &c,— Loans— Lotteries —Maritime Law— Marriages, Births, Deaths. &c,— Mediations, Awards, &c.— Medical— Most Favoured Nation— Navigation— Navy— Neutrality— Offenders (Cri. minais)— Orders, Medals, &c —Passenger Vessels. &e,— Passports— Patents— Pen- sions, &c.— Pilotage : Pilots— Piracy : Pirates- Postal (Treaties. &c.)— Postal (War- rants, Acts, &c )— Precedence— Privileges: Vessels and Cargoes— Prizes. Seizures, &c. — Property— Onarantine— Reciprocity — Ueligioii: Chapels, &c. — Revenues (Foreign)— Right of search and Visit- Rivers, Lakes, &c. — ^eameo— Shipping Dues, ^c.— ^.hipwrecks- Slave Trade: Slavery, fee—Smuggling- Sound Dues— Stade Toll —Sugar— TariflFs— Taxes— Telegraph— Territories-Trade— Trade Marks— Trade and • Navigation— War, &o.— Wills— Wrecki and Salvage— Yachts. ii ^ ^ ^ '& ©- 32 LAW WORKS PUBLISHED BY THE LAW EXAMINATION JOURNAL. Edited by Herbert ITewman Mozlet, of Lincoln's Inn, Esq., Ban*ister-at-Law. PuUislied on the morning of the second day after each respective Final Uxaminq,tion in Hilary^ Faster j Trinity and Michaelmas Terms in each year. Each Numher price Is., by post Is. Id. ; or annual subscriptionj payaMe in advance, 4s., hy post 4s. ^d. No. XX.— Trinity, 18?4, I. Legislative Prospects of the Session. II. Digest of Cases. III. Intermediate Ex- amination, Easter Term, 1874: Questions and Answers. IV. Final Examination. Trinity 'J"erm,1874: Questions and Answers. V. Reviews. VI. Correspondence and Notices. No. XIX.— Easter, 1874. I. Leadine Cases, continued. 11. Digest of Cases. lit. Intermediate Examination, Hilary Term, 1674: Question!; and Answers. IV. Final Examination, Easter Term, 1674: Questions and Answers. V. Review: Seventh Edition of Stephen's Blackstone'd Commentaries. VI. Correspondence and Notices. ' No. XVIII.— Hilary, 1874. I. Statutes of 1873 (Second Notice including the Supreme Court of Judicature Act and subsequent Statutes). IT. Digest of Cases. III. Intermediate Examination, Michaelmas 'J'erni, 1873: Questions and Answers. IV, Final Examination, Hilary Term, 1874 : Questions and Answers. V. Correspondence and Notices, No. XVII.— Michaelmas, 1873. I. Leading Cases (Note by the Editor). _ II. Statutes of 1873 (First Notice). III. Digest of Cases. IV. Intermediate Examination, Trinity Term, J873: Questions and Answers. V. Final Examination, Michaelmas Term, 1873: Questions and Answers. VI. Notice of Intermediate Examination for 1874. VII. Reviews of Books. Vlll. Law Student's Societies. IX. Correspondence. No. XVI.—Trinity, 1873. 1. The Study of the Law, concluded. 11. Leading Cases : Spencer's Case, continued. III. 'Olg:est of Cases. IV. Intermediate Examination, Easter, 1S73: Questions ani Ai-sweri). V. Final Examina- tion, Trinity, 1873: Questions and Answers. .VI. A Review; Kelly's Draftsman. VJI. Corres- poniience and Notices. No. XV.— Easter, 1873. I. The Study of the Law, continued. , II. Analysis of Leading Cases. III. Disrest of Cases. IV. In- termediate Examination, HiUry Term, 1873: Questions and Answers. V. Final Examinattou, Easter Term, 1873: Questions and Answers. VI. Correspondence and Notices. No. XIV.— Hilary, 1873. I. The Study oftheLaw, continned. II. Digest of Cases. III. Intermediate Examination, Michael- mas Term, 1672; Questions and Answers. IV. Final Examinailon, Hilary Term, 1S73: Questions and Annwers. V. Reviews. VI. Answers to Correspondents and Notices. No. XIII.— Michaelmas, 1872. I. Public Prosecutors, concluded. 11. The Statutes of 1872. III. Diffest of Cases. IV. Intermediate Examination, Trinity Term, 187S: Quehtlons and Arswers. V. Final Examination, Micnaelnias Term, 1872: Questions and Answers. VI. Reviews. VII. Answers to Correspondents and Notices. No, XII.— Trinity, 1872. I. Publir Prosecutors, continued. II. Study of the Law, continued. II. Digest of Cases. IV. Infer- mediate Examination ( EasterTerm,1672)Question8 and Answers. V. Final Examination (Trinity Term, 1872) Questions and Answers. VI, Law Students Congress, Birmingham: LawExami((ation»f. Vtl. A Review : Hunt's Law of Fraudulent Conveyances and Bills of Sale, VIIL Answers to Correspondents. No. XT.— Easter, 1872. I. The Study of the Law. IF. Legislative Prospects of the Session ; Married Women's Properly Act Amendment Bill: Imperial Court of Appeal, III. Digest of Cases. IV. Intermediate Examfnation Questions and Answers (Hilary Term, 1872). V. Final Examination Questions and Answers (Eahter 'J erm, 1672). VI. Answers to Correspondents, No. X.— Hilary, 1872. L Notice of the late Editor. IL TheStndy oftheLaw. III. Digest of Cases, IV. Intermediate Ex- amination Questions and Answers (Michaelmas, 1871). V. Final Examination Questions and Answers (Hilary, 1872), VL Answers to Correspondents. No. IX.— Michaelmas, 1871. L On Examinations. IL TheSulyectof PuhiicProseculors,continued. IIL Digest of Cases, IV. Inter- mediate Examination Questions on Chitty, Williams and Smith (Trinitv, 1871), with Answers, v. Final Examination Questions audAnswers(Michaelmas Term, 1671). VI. Reviews of Books, VII. Anbwers to Correspondents, No. VIIL— Trinity, 1871. L On theNecessilyof providingaPublicProseculor: bytheEditor. I. HowMr.MansfieldDenman passed hi9"Final:"byE. H, HI. Digest of Cases. Note by the Editor. IV. Interme:liaie Examination Q'lesiions and Answers (Easter, 1871). V. Final Examination Questions and Answers (Triniiyj 1871). ^L CorresponJence, &c. No. VII.— Easter, 1871. I. Some Remarkson the MarriedWoroen^sPropeny Act, 1870: bytheEditor. II, Digest of important Legal iJeciniOns. IIL Intermediate Examination Quesiions and Answers (Hilary, 1 871). IV, hinal Ex- amiuation QucbtlonB and Answers (Easter, 1B71). V. Reviews of New Books. VI. Correspondence. Q- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 33 THE I.A>V EXAMINATION JOURNAL-contlnued, No. VI.— Hilary, 1871. 1. Our Jury Sistem : by the Eititor. II. Wisest of inipnrtdi.t Lpgal Dec'sion^. 1\\. Intprmediate hsamiiiaUi'ii ant-srioiis and Answers (Michaelmas, 1870). IV. fiDal Kxamliiaiioii Gue&iioiis and AQswers (Hilaiy, 1870. V. Review"! of New books. VI. Correspondence. No. V. — Michaelmas. 1870. I. On the Legislation of 1870 : by the Editor. If. Diffesi of imporlant LesH Derision^. III. Intpr- nifdiaie ExanniatiooQiiesilons and Answers (Trinit*, 1870). IV. Final Examhiatiou Queatioiis and Answers CMichaeliuas, 1870). V. Reviews of New Books. VL Corrcbpondence. No. IV.— Trinity, 1870. I. Leading Attirle on the Fusion of the Two Branches of ilie Le^l Professiion, by thfi E'lifor, ron- cluried. a. Uigest of Imnortant Legal Decisions. III. Iiilerniedjaie Exaniiiia,tion aufsuons and Answers ( Kaster. lii70). IV. Final EsamlnaUon Questions and Answers (Trlnitj, 1870). V. Reviewa of New books. VI. Correspondence. No. III.— Easter, 1870. I. On'lhe FhpIod of the Two Branches of ihe Profession : by the Editor. IT. Dipeit of important recent JJecisions. HI. Intermediate Examination Que.iions and Aiihwera (H. T. 1870). IV. Final EiauilBalioQ Queslions and Answers (E.T. 1870). V, Rtviews of New Books. VI. Correspondence. No. XI.— Hilary, 1870. I. Note by the Editor. II. On Attornment in Mortgatrci. III. Diffestof important recent Decisions. 1\. Intermediate Bsaminatlon Questions and Answers (M.T. 18t)9), V. Final £.\amiiiaiionUiieiition!i aud Answers (H. T. I87u). VJ. Correspondence. No. I. — Michaelmas, 1869. I. Coanty Conrtj:, their Merits and Dtfects as Local Tribunals : by the Editor. II. Siimniary of new Decisions in Banco and at Nisi Priu>. III. Analysis of the more important practical vStatuits of aa « 33 Vict. IV. lotermediale EsamlnaUon Quesllons and Answers (T.T. 1869). V. Final Examii anon Questions and Answers (M. T. 1869). Vi. Notes on the Examinations. VII. Correspoiuience. *♦* Copies of Vol. I. of tlie Law Examination Journal, containing Nos. 1 to 14, with full Indexes and Tables of Cases cited, inai/ now be liad, price 16s. hound in clotK — ♦ — INGRAM'S I.AW OP COMPENSATION —Second Edition, COMPENSATION TO LAND AND HOUSE OWNERS : being a Treatise on the Law of the Compensation for In- terests in Lands, &c. payable by Railway and other Public Companies; with an Appendix of Forms and Statutes. By Thomas Dunbar Ingram, of Lincoln's Inn, Esq., Barrister at Law, now Professor of Jurisprudence and Indian Law in the Presidency College, Calcutta. Second Edition. By J . J. Elmes, of the Inner Temple, Esq., Barrister- at-Law. Post 8vo, ] 2s. cloth, " Whether for companies taking land or couclusive manner that Mr. Ingram has holding it, Mr. Ingram's volume will be a rightly measured the requirements of ihe welcome guide. With this in his hand the profession when he designed the monograph legal adviser of a company, or of an owner before us. The appendix contains no Jess and occupier -whose property is taken, and than sixty forms rt-qnired in the practice of who demands compensation for it, cannot this branch of the law and the statutes and fail to perform his duty rightly." — Law partsofstatatesinwhichitisembodied The Times. index is very ample. 'J'hus it will be seen " This work appears to be carefully pre- to be a book very valuable to all solicitors pared as regards its matter. This edition who may be concerned for railways or for is a third larger than the first; it contains the persons whose properties are affected twice as many cases, and an enlarged by them." — Lav) Times , second jiotice. index. It was much called for and doubt- " His explanations are clearand accurate, less will be found very uieful by the prac- and he constantly endeavours not only to titioner." — Law Magazine. _ state the effect of the law which he is " The appearance upon the title page of enunciating, but also to show the principle the words Second Edition attests intbemost upon which it Te&ts.'"—Athenaum, SCRIVEN ON COPYHOLDS.— Fifth Edition by Stalmati. A TREATISE ON COPYHOLD, CUSTOMARY FREEHOLD, and ANCIENT DEMESNE TENURE, with the Jurisdiction of Courts Baron and Courts Leet, By John Sckiven, Ser- jeant at Law, The Fifth Edition, containing references to Cases and Acts of Parliament to thepresent time. By Henry Stalman, Esq., of the Inner Temple, Barrister-at-Law. Abridged in 1 vol. royal 8 vo. 305. cloth. O- B 5 LAW WORKS PUBLISHED BY mv. <©fer0 mm^teviai aaorfes. Oke's Laws as to Licensing Inns, &c. Second Edit. 1874 ; containing the Licensing Acts, 1872 and 1874, and the other Acts in force as to Ale-houses, Beer-houses, Wine and Refreshment- houses, Shops, &c., selling Intoxicating Liquors, and Billiard and Occasional Licences. Systematically arranged, with Explanatory Notes, the authorized Forms of Licences, Tables of Offences, Index, &c. By George C. Oke, Chief Clerk to the Lord Mayor of London. Second Edition, by W. C. Glen, Esq., Barrister at Law. Post Svo. 10s. cloth. "It is superfluous to recommend any work on magisterial law which bears the name of Mr. George C. Oke on the title page. That gentleman's treatises are standard authorities, and they deserve the esteem in which they are held. Mr. Oke is not only a well-read anil industrious author, but he has a long and first-class experience in the administration, of magisterial law. We aie sure that lawyers who .have licensing cases, and magistrates who have to administer the new act, will be very glad to hear that Mr. Oke has published a treatise on the subject. This treatise, which Mr. Oke modestly describes as little, is a comprehensive manual. The lawis cited in a manner easy of reference. ■ There are explanatory notes, actable of forms, some of them original, a table of offences, and a copious index. Mr. Oke also gives a very clear exposition of the much disputed sections 45 and 46 of the new Licensing Act." — Kaw Journal. " Mr. Oke has lately brought out by far the best edition of the act, or perhaps we should say a treatise on it. Everything appears to be given which can by possi- bility be required, and the forms are abundant" — Law Times, Oke's Magisterial Synopsis; a Practical Guide for Magistrates, their Clerks, Attornies, and Constables; Summary Con- victions and Indictable Offences, with their Penalties, Punishments, Procedure, &c. ; being alphabetically and tubularly arranged : with a Copious Index. Eleventh Edition, much enlarged. By George C. Oke, Chief Clerk to the Lord Mayor of London. In 2 vols. Svo. cloth. "Mr. Oke, in his preface to the eleventh edition, alludes to the unusually ex- tensive alterations in and additions to, the already wide jurisdiction of justices of the peace effected by Parliament during the sessions of 1S69, 1870 and 1871. The insertion of many new titles and much new matter has by such legislation been rendered necessary, while other titles have been enlarged, rewritten, or condensed, as the experience of the author has suggested. Several minute changes have also "been made in the references. Upon all these improvements the author tells us that he has bestowed his personal attention and the utmost care., We have therefore a perfect guarantee of the accuracy and propriety of all that is novel in the eleventh edition. We earnestly recommend to the higher classes of this country Mr. Oke's Synopsis, not as a mere reference index or dictionary to be snatched up at a moment of pressing need, but as a subject of quiet study. In conclusion, we beg to tender our warmest thanks to Mr. Oke for the immense boon conferred by him on the legal profession, the magistracy, and tlie whole community by his Synopsis, which now, as on a former occasion, we venture to designate as the standard guide of the magis- terial bench, and the indispensable companion of every justice of the peace." — Law Journal. Oke's Magisterial Formulist ; being a Complete Collec- tion of Forms and Precedents for practical use in all Cases out of Quarter Sessions, and in Parochial Matters, by Magistrates, their Clerks, Attornies and Constables. By George C. Oke, Author of ^- «- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 35 Mx. ©fee'g jfBlaflistettal WSLotke-contimwd. "The Magisterial Synopsis." &c. Fourth Edition, enlarged and improved. 8vo. SHs. cloth. " This work is too well known to need eulogy ; it is in universal use in magistrates' courts. It has been out of print for some time, and a new edition was urgently lequired. We believe that Mr. Oke purposely delayed it that it might be made contemporaneous, or nearly so, with the 'Synopsis.' The contents are brought down to the end of last year, and consequently it includes all the forms required by the new statutes and decisions of the six years that have elapsed since the publication of the third edition. It is a book that has been known so long and so extensively, that no further description of it is needed now." — Law Times. Oke's Handy Book of the Game and Fishery Laws ; containing the wliole Law as to Game, Licences and Certificates, Poaching Prevention, Trespass, Rabbits, Deer, Dogs, Birds and Poisoned Grain throughout the United Kingdom, and Private and Salmon Fisheries in England. Systematically arranged, with the Acts, Decisions, Notes, Forma, Suggestions, &c. By George C. Oke, Authorof "The Magisterial Synopsis," &c. Second Edition. 12mo. 10s. 6d. cloth. " Mr. Oke's name on a title page is a guarantee for at least a thoroughly poetical work. He knows precisely what is wanted, and he supplies it. The arrangement is new and very convenient. It is what it professes to be, a handbook for the sports- man and his legal adviser." — Law Times, Oke's Law of Txirnpike Roads ; comprising the whole of the General Acts now in force, including those of 1861 ; the Acts as to Union of Trusts, for facilitating Arrangements with their Creditors; as to the interference by Railways with Roads, their Non- repair, and enforcing Contributions from Parishes, &c., practically arranged. With Cases, copious Notes, all the necessary Forms, and an elaborate Index, &c. By George C. Oke. Second Edition, 12mo. 18s. cloth. " All Mr. Oke's works are well done, and his * Turnpike Laws ' is an admirable specimen of the class of books required for the guidance of magistrates and legal practitioners in country districts." — Solicitors' Journal, GIiEN'S FUBIiIC HEALTH AND LOCAI> GOVERNMENT. Seventli Edition. The LAW relating to PUBLIC HEALTH and LOCAL GOVERNMENT : including the Law relating to the Removal of Nuisances injurious to Health, the Prevention of Diseases, and Sewer Authorities. With Statutes and Cases. By W. Cunning- ham Glen and Alexander Glen, B.A., LL.B., Barristers at Law. Seventh Edition. Post 8vo. 36s. cloth. 0- 36 LAW WORKS PUBLISHED BY SEABORNE'S LA^W OF VENDORS & PURCHASERS* A CONCISE MANUAL of the LAW of VENDORS AND PURCHASERS of REAL PROPERTY. By Heury Seaborne. Post 8vo. 9s. cloth, ^** This work is designed to furnish Practitioners with an easy means of reference to the Statutory Enactments and Judicial Decisions regulating the Transfer of Real Property, and also to Wing these authorities in a compendious shape under the attention of students. " The book before us contains a good the most important branches of the deal, especially of practical information Jaw. The student -will find this book a as to the course of conveyancing matters useful introduction to a dry and difficult in solicitors' offices, which may be use- subject," — Law Examination Jommal. ful to students."— Solicitor^ Journal. ** Intended to furnish a ready means " We will do Mr. Seaborne the justice of access to the enactments and deci- to say that we believe his work will be sions governing that branch of the law." of some use to articled and other clerks — TJie Times. in solicitors' offices, who have not the " The book will be found of use to the opportunity or inclination to refer to the legal practitioner, inasmuch as it will, standard works from which his is com- so far as regards established points of T^led."— Law Journal. law, be a handierwork of reference than **The value of Mr. Seaborne's book the longer treatises we have named." — consists in its being the most concise Athenwum, summary ever yet published of one of TOMKINS' INSTITUTES OF ROMAN IjAW, THE INSTITUTES of ROMAN LAW. Part I., con- taining the Sources of the Roman Law and its External History till the Decline of the Eastern and Western Empires. By Frederick ToMKiNs, M.A., D.C.L., Barrister at Law, of Lincoln's Inn. Royal 8vo, 12s. cloth. (To be completed in Three Parts.) DREWRY^S EQUITY PLEADER. A CONCISE TREATISE on the Principles of EQUITY PLEADING, with Precedents. By C. Stewart Drewry, Esq., of the Inner Temple, Barrister at Law. 12mo., 6s. boards. Contents :— What Persons are entitled to sue in Equity, and in what manner to sue. — Of the Modes of instituting' a Suit in Equity. — Of the Defence of Suits. — Of Pleas. —Of Answers.— Of A mended Bills.— Of Revivor and Supplemental Bills.— Of Inter- locutory Applications,— Of the Proceedings on going into Evideuce.— Of Appeals. -Concmsion.— Appendix of Precedents. " Mr. Drewry will be remembered by he describes the principles and Keneral many as the author of the very popular rules of Equity Pleadintj.' It will be found and excellent treatise on the Practice in of great utility, asintroductorytothemore Equity. He has now contributed to the elaooTatetreatises,ortorefresnthememory library of the lawyer another work of after the study of the larger booka,"^i«» e^ual value, written for younger members TimeSt ol the profession and for students, in which ®- GLEN'S POOR I^AVr ORDERS.— Seventh Edition. The GENERAL CONSOLIDATED and other ORDERS of the POOR LAW COMMISSIONERS and the POOR LAW BOARD ; with explanatory Notes elucidating the Orders, Tahles of Statutes, Cases and Index to the Orders and Cases. By W. C. Glen, Esq., Barrister at Law. Seventh Edition. Post 8vo. 21s. cloth. VirilililAMS ON PIiEADING AND PRACTICE. An INTRODUCTION to the PRINCIPLES and PRACTICE of PLEADING in the SUPERIOR COURTS of LAW, embracing an outline of the whole Proceedings in an Action at Law, on Motion, and at Judges' Chambers; together with the Rules of Pleading and Practice, and Forms of all the principal Proceedings. By Watkin Williams, M.P., of the Inner Temple, Esq., Barrister at Law. 8vo. 12s. cloth. Mr. Williams has undertaken a work re- the book has features of peculiar value, quiring great care in its treatment; but we it is at the same time scientific and i)rac- have no hesitation in saying that he has tical, and throughout the work there is a brought to bear on his task powers of ar- judicious union of general principles with raugenient and clearness of expression of a practical treatment of the subject, illus- no ordinary character, and has produced trated by forms and examples of the main a work creditable to himself and useful to proceedings." — Jurists the Profession. For the Studeut especially FRY'S SPECIFIC PERFORMANCE OF CONTRACTS. A TREATISE on the SPECIFIC PERFORMANCE of CONTRACTS, including those of Public Companies. By Edward Fry, B.A., of Lincoln's Inn, Esq., Barrister at Law. 8vo. 16s. cloth. " Mr. Fry's work presents in a reason- of the law, but of those varying circum- able compass a large quantity of modern stances in human society to which the law learning on the subject of contracts, with has to be applied.*'— iSjpeciaior. reference to the common remedy by specific "Mr. Fry's elaborate essay appears to performance, and will thus be acceptable to exhaust the subject, on which he has cited the profession generally." — Lajo C/trouicIe. and brought to bear, with_ great diligence, " '['here is a closeness and clearness in some 1,500 cases, which include those of its style, and a latent fulness in the expo- the latest reports." — Law Magazine and sition, which not only argue a knowledge Review, PHIIiLIPS'S LAW OF LUNACY. THE LAW CONCERNING LUNATICS, IDIOTS, and PERSONS of UNSOUND MIND. By Charles P. Phillips, M.A., of Lincoln's Inn, Esq., Barrister at Law, and Commissioner in Lunacy. Post 8vo., 18s. cloth. " Mr. Phillips has, in his very com- present law, as well as the practice, plete, elaborate and useful volume, pre- relating to lunacy." — •Law Magazine and seated us with an excelleoC view of tha Review. -flf iSh 38 LAW WORKS PUBLISHED BY WIGRAM ON WILLS.— Fourth Edition. An EXAMINATION of the RULES of LAW respecting the Admission of EXTRINSIC EVIDENCE in Aid of the INTER- PRETATION of WILLS. By the Right Hon. Sir James Wigram, Knt. The Fourth Edition prepared for the press, with the sanction of the learned Author, by W. Knox Wigram, M.A., of Lincoln's Inn, Esq., Barrister at Law, 8vo. lis, cloth. " In ihe celebrated treatise of Sir James Wigram, the rules of law are stated, dis- cussed and explaiDed lu a manner which has excited the admiration of every judge ■who has had to consult it." — Lord hifigs- dawn, in a Privy Council Judgment, Jvij/ 8/A, 1858. " There can be no doubt that the notes of Mr. Knox "Wigram have «nhanced the value of the work, as affording a ready reference to recent cases on the subjects embraced oi arising out of Sir James Wigram's propositions, and which fre- quently give additional support, and in some instances an extension to the original text."— /-flK' Chronicle. " Understood as general guides, the propositions established by isir James Wigram's book aie of the highest value. But whatever view may be entertained, the book is one which will always be highly prized, and is now presented in a very satisfactory shape, thanks to the industry and intelligence displayed m the notes by the present editor." — Soticitors* Journal and Reporter, COOMBS' SOIiICITORS' BOOKKECPING. A MANUAL of SOLICITORS* BOOKKEEPING: comprising practical exemplifications of a concise and simple plan of Double Entry, with Forms of Account and other books relating to Bills of Costs, Cash, &c., showing their operation, giving directions for keeping, posting and balancing them, and instructions for drawing costs. Adapted for a large or small, sole or partnership business. By W. B. CooMBs, Law Accountant and Costs Draftsman. I vol., 8vo. 10s. 6d. cloth. *t* T/ie various Account Books described in the above work, the Forms df which are Copyright, may be had from the Publisliers, at the prices stated in Vie work cU page 274. 0- " The author of the above, relying on the well-known fact that solicitors do not like intricate bookkeeping, has pre- sented to that branch of the profession a ■work in -which the really superfluous has been omitted, and that only which is necessary and useful in the ordinary routine in an attorney's office has been retained. He has performed his task in a masterly manner, and in doing so haa given the why and the wherefore of the whole system of Solicitors' Bookkeeping. The volume is the most comprehensive ^'6 remember to have seen on the sub* ject, and from the clear and intelligible manner in which the whole has been Worked out it will render it unexcep- tionable in the hands of the student and the practitioner." — Law Magazine. " Throughout the pro formd account books most of the different matters of business which usually arise in a solici- tor's office have been passed from their commencement to their ultimate con- clusion. The bill book contains pre- cedents of hills of costs illustrating the currespondence between that and the disbursement book, and so with the cash book, ledger, and other books ; every item has its reference and any intricate p'oiuts have been explained, which are merits ■which no other work on the subject possesses; indeed so clear do the in- structions appear that a tyro of average - skill and abilities with application could under ordinary circumstances open and keep the accounts of a business; and so far as we can judge the author has sue- ceeded in his endeavour to divest solici- tors' bookkeeping of complexity, and to be concise and simple without being inefficient. We cannot dismiss this volume without briefly commenting upon the excellent style in which it ia . submitted to the profession,"— Law Journal. -o «s- MESSRS. BUTTER WORTH, 7 FLEET STREET, B.C. 39 BRABROOK'S NEVT W^ORK ON CO-OPERATION. THE LAW and PRACTICE of CO-OPERATIVE or INDUSTRIAL and PROVIDENT SOCIETIES; including the Winding-up Clauses, to which are added the Law of France on the same subject, and remarks on Trades Unions. By Edward W. Brabruok, F.S.A., of Lincoln's Inn, Esq., Barrister at Law, As- sistant-Registrar of Friendly Societies in England. 6s. cloth. ** A volume "which will he very cor- tained in it are valuable and interest- diallywelcomed by the associations of ing." — Law Magazine. which it treats and by their legal advi- ■* The fullness of knowledge is exhi- ners," — Law Times. bited throughout this practical unpre- *' At the present time when so much tending and handy little book of infor- attention is directed towards the working mation for all whom it concerns." — of Industrial and Provident Societies Maiming Post. and Trades Unions, with all their unen- " The author speaks with practical viable notoriety, Mr. Brabrook's little experience and authority." — Observer. work on these societies is opportune, " The little volume is comprehensive and the statistics and information con- and valuable." — News of the World, IiUSHINGTON'S NAVAI. PRIZE LA^V. A MANUAL of NAVAL PRIZE LAW. By Godfret LusHiNGTON, of the Inner Temple, Esq., Barrister at Law. Royal 8vo. 10s. 6d. cloth. — • — TROWER'S CHURCH BUIIiDING LAWS, Continued to 1874. THE LAW of the BUILDING of CHURCHES, PARSONAGES, and SCHOOLS, and of the Division of Parishes and Places. By Charles Francis Trower, M.A., of the Inner Temple, Esq., Barrister at Law, late Fellow of Exeter College, Oxford, and late Secretary of Presentations to Lord Chancellor Westbury. Post 8vo. 9s. cloth. The Supplement may be Aad separately, price Is., served. *' A good book-on this subject is calcu- men are concerned with glebes, endow- lated to be of considerable service both to meats, district chapelries, parishes, eccle- lawyers, clerics and laymen; and on the sia&tical commissions and such like matters, whole, after taking a survey of the work about which the public and notably the before us we may pronounce it a useful clerical public seem to know but little, but work. It contains a great mass of iufor- which it is needless to say are matters' of mation of essential import to those who much importance."— "Ifo/iciVor*' Jtmnial. as parishioners, legal advisers or clergy- WIIiIiS ON EVIDENCE.— Fourth Edition. AN ESSAY on the PRINCIPLES of CIRCUMSTAN- TIAL EVIDENCE. Illustrated by numerous Cases. By the late William Wills, Esq. Fourth Edition. Edited by his Son, Alfred Wills, Esq., Banister at Law. 8vo. 10s. cloth. -fi» c- 40: LAW WORKS PUBLISHED BY FIELD'S LAW RELATINQ TO CURATES. The LAW RELATING to PROTESTANT CURATES and the RESIDENCE of INCUMBENTS or their BENEFICES ia ENGLAND and IRELAND. By C. D. Field, M.A , LL.D., late Scholar of Trin. Coll. Dublin, and now of Her Majesty's Bengal Civil Service; recently Judge of the Principal Court of Small Causes at Kishnaghur; and Registrar of Her Majesty's High Court of Judi- cature at Fort William in Bengal ; Author of the Law of Evidence in India, &c. Post 8vo. 6s. cloth. "A clear and concise exposition of a the notice of solicitors, but of considerable branch of the law not often brought under interest to the clergy."— £ow Timet. GRANT'S LA^V OF CORPORATIONS IN GENERAL. A PRACTICAL TREATISE on the LAW of COR- PORATIONS in GENERAL, as well Aggregate as Sole; including Municipal Corporations, Railway, Banking, Canal and other Joint- Stock and Trading Bodies, Dean and Chapters, Universities, Colleges, Schools, Hospitals, with quasi Corporations aggregate, as Guardians of the Poor, Churchwardens, Churchwardens and Overseers, &c., and also Corporations sole, as Bishops, Deans, Canons, Archdeacons, Parsons, &c. By Jamks Grant, Esq., of the Middle Temple, Bar- rister at Law. Royal 8vo. 26s. boards. HOLLAND ON THE FORM OF THE LAW. ESSAYS upoa the FORM of the LAW. By Thomas Erskinb Holland, M.A., Fellow of Exeter College, Oxford, and of Lincoln's Inn, Esq., Barrister at Law, and Chichele Pro- fessor of International Law in the University of Oxford. 8vo. 7s. Gd. cloth. "A work of great ability."— 4fte«ram. essays to our readers."— Zaw Magazine. " Entitled to very high commenda- " A work in which the whole matter tion."— £aw Times. is easily intelligible to the lay as well " The essays of an author so well as the professional public."— tourday qualiiied to write upon the subject." — Jieview. Law Journal. " Mr. Holland's extremely valuable " We can conAdentlyrecommend these and ingenious essays."- ^jjectoior. «J — : O MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 41 ROUSE'S COPYHOLD ENFRANCHISEMENT MANUAL.— Third Edition. The COPYHOLD ENFRANCHISEMENT MANUAL; enlarged, and treating the subject in the Legal, Practical and Mathe- matical Points of View; giving numerous Forms, Rules, Tables and Instructions for Calculating the Values of the Lord's Rights; Sugges- tions to Lords* Stewards, and Copyholders, protective of their several Interests, and to Valuers in performance of their Duties ; and inclu- ding the Act of 1858, and Proceedings in Enfranchisement under it. By RoLLA Rouse, Esq., of the Middle Temple, Barrister at Law. Third Edition, much enlarged. 12mo. lOs. 6d, cloth. " This new edition follows the plan of its predecessor, adopting a fivefold divi- sion : — 1. The Law. 2. The Practice, with Practical Suggestions to Lords, Stewards and Copyholders. 3. The Ma- thematical consideration of the Subject in all its Details, with Rules, Tables and Examples. 4. Forms. 5. The Statutes, with Notes. Of these, we can only re- peat what we have said before, that they exhaust the subject ; they give to the practitioner all the materials required by him to conduct the enfranchisement of a copyhold, whether voluntary or com- pulsory." — Zaw Times. " When we consider what favor Mr. Rouse's Practical Man and Practical Conveyancer have found with the pro- fession, we feel sure the legal world will greet with pleasure a new and improved edition of his copyhold manual. The third edition of that work is before us. It is a work of great practical value, suitable to lawyers and laymen. "We can freely and heartily recommend this volume to the practitioner, the steward and the copyholder." — Law Magazine. " Now, however, that copyhold tenures are being frequently converted into free- holds, Mr. Rouse's treatise will doubtless be productive of very extensive benefit ; for it seems to us to have been very care- fully prepared, exceedingly well com- posed and written, and to indicate much experience in copyhold law on the part of the author." — Solicitors' Journal, BENHAM'S STUDENT'S EXAMINATION GUIDE. The STUDENT'S GUIDE to the PRELIMINARY EXAMINATION for ATTORNEYS and SOLICITORS, and the Oxford and Cambridge Local Examinations and the College of Pre- ceptors, to which are added numerous Suggestions and Examination Questions selected from those asked at the Law Institution. By James Erle Benham, of King's College, London. 12mo, 3s, cloth, " The book is artistically arranged. It will become a useful guide aud instructor, not only to Law Studenfs, but to every Student wh3 is preparing for a preliminary examination." — Laze Journal. "Mr. Benham has produced a very useful manual for the aid of intending candidates at the solicitors* preliminary examinations, and the Oxford and Cam- bridge local examinations. He gives many sn^rgestions on all the subjects of examination and full inrormtition tkereon." — Laze Examination lieporter. ''The book is written in a clear and agreeable style, and, in spite of a few blemislies, will no doubt be round useful by the class of readers for whom it is intended,"— ■Z.au' Magazine and Review. *'This book is intended for the use of those who are about to undergo the pre- liminary examinations for attorneys and solicitors and for the Oxford and Cam- bridge local examinations. The student may learn from Mr. Benham what he has to do and the way to do it. We have no doubt tliat ' Benham's Student's Exami- nation Guide* will be largely patronised in this examining ?ige.^'— Standard, 42 LAW WORKS PUBLISHED BY FIELD ON EVIDENCE IN BRITISH INDIA.— Second Edition. THE LAW OF EVIDENCE AS ADMINISTERED IN BRITISH INDIA. By C. D. Field, LL.D., of the Inner Temple, Barrister at Law, and of H. M.'s Bengal Civil Service. Second Edition, containing tlie New Code of Evidence passed by tlie Legislative Council of India. 8vo. 28s. cloth. _" We have carefiilly looked into Mr. in general and Indian evidence in par- Field's work, and our opinion is that it ticular. We do not think any better re- is worthy of the law of which it treats ; commendation could be given to persons but it is made additionally and excep- contemplating the practice of the law in tionally valuable by an introduction India than to procure Mr. Field's work which is an original essay on evidence and master it." — Law Times. FIELD'S TABIiE OF, and INDEX TO, INDIAN STATUTES. CHRONOLOGICAL TABLE OF, and INDEX TO, THE INDIAN STATUTE BOOK from the Year 1834; with a General Introduction to the Statute Law of India. With Supplement continuing the Work to August, 1872. By C. D. Field, M.A., LL.U., of the Inner Temple, Barrister at Law, and of H.M.'s Bengal Civil Service. Imperial 4to. 42s. cloth. BRANDON'S LAW OP FOREIGN ATTACHMENT. A TREATISE upon the CUSTOMARY LAW of FOREIGN ATTACHMENT, and the PRACTICE of the MAYOR'S COURT of the CITY OF LONDON therein. With Forms of Procedure, By Woodthorpe Brandon, Esq., of the Middle Temple, Barrister-at-Law. 8vo. 14s. cloth. MOSELEY ON CONTRABAND OF WAR. WHAT IS CONTRABAND OF WAR AND WHAT IS NOT. A Treatise comprising all the American and English Authorities on the Subject. By Joseph Moseley, Esq., B.C.L., Barrister at Law. Post 8vo. 5s. cloth. SMITH'S BAR EDUCATION. A HISTORY of EDUCATION for the ENGLISH BAR, with SUGGESTIONS as to SUBJECTS and METHODS of STUDY. By Philip Anstie Smith, Esq., M.A., LL.B., Bar- rister at Law. 8vo. 9s. cloth. ^ _® MESSRS. BUTTERWORTH, 7 FLEET STREET, E.G. 43 The Law and Facts of the Alabama Case, with Reference to the Geneva Arbitration. By James O'Dowd, Esq., liarrister-at- Law. 8vo. 2^. sewed. A Letter to the Right Hon. the Lord High Chancellor concerning Digests and Codes. By William Richard Fisher, of Lincoln's Inn, Esq., Barrister at Law. Royal 8vo. Is. sewed. Gray's Treatise on the Law of Costs in Actions and other PROCEEDINGS in the Courts of Common Law at West- minster. By John Gray, Esq., of the Middle Temple, Barrister at Law. 8vo. 21s. cloth. ••• This Work embraces the vrhole modern T.aw and Practice of Costs, ioclading the important provisions of the Common Law Procednre Act and Rules, 1852, ana the recent Statutes affecting the Jurisdiction of the County Courts, Pnlling's Practical Compendium of the Law and Usage of MERCANTILE ACCOUNTS; describing the various Rules of Law affecting them, the ordinary Mode in which they are entered in Account Books, and the various Forms of Proceeding, and Rules of Pleading, and Evidence for their Investigation, at Common Law, in Equity, Bankruptcy and Insolvency, or by Arbitration. With a SUPPLEMENT, containing the Law of Joint Stock Companies' Accounts, under the Winding-up Acts of 1848 and 1849. , By Alexander Pulling, Esq. of the Inner Temple, Barrister at Law. 12mo. 9s. boards. Hamel's International Law.— International Law, in con- nexion with Municipal Statutes relating to the Commerce, Rights and Liabilities of the Subjects of Neutral States pending Foreign War; considered with reference to the Case of the " Alexandra," seized under the provisions of the Foreign Enlistment Act. By Felix Hargrave Hamel, of the Inner Temple, Barrister at Law. Post Svo. 8s. sewed. Keyser on the Law relating to Transactions on the STOCK EXCHANGE. By Henry Keyser, Esq., of the Middle Temple, Barrister at Law. 12mo. 8s. cloth. Gumey's System of Short Hand, as used by both Houses of Parliament. Seventeenth Edition, revised and improved. 12mo. 3s. 6rf. cloth. " Gurney's is, we believe, admitted to be the best of the many systems." — Law Times. A Memoir of Lord Lyndhurst. By William Sidney Gibson, Esq., M.A., F.S.A., Barrister at Law, of Lincoln's Inn. Second edition, enlarged. Svo. 2s. 6d. cloth. A Memoir of Mr. Justice Talfourd. By a Member of the Oxford Circuit. Reprinted from the Law Magazine. '8vo. Is. sewed. Remarks on Law Reform. By George W. M. Dale, of Lincoln's Inn, Esq. Svo. Is. 6d. sewed. e- -o jS _ — — ^ ^ 44 LAW WORKS PUBLISHED BY Civil Service of India-8vo. Is. sewed. On Reporting CASES for their Periodical Examinations by Selected Candidates for the Civil Service of India. Being a Lecture delivered on Wednesday, June 12, 1867, at King's College, London. By John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Professor of Englisli Law aud Jurisprudence, and Professor of Indian Jurisprudence at King's Col- lege, London. Blayney's Practical Treatise on life Assurance. Second Edition. By Frederic Blayney, Esq. 12mo. 7s. boards. The Laws of Barbados. (By Authority.) Koyaisvo. 21*. dotli. Pearce's Guide to the Bar and Inns of Court.— A Guide to the Inns of Court and Chancery; with Notices of their Ancient Discipline, Rules, Orders and Customs, Readings : together with the Regulations of the Four Inns of Court as to the Admission of Students, Keeping Terms, Lectures, Examination, Call to the Bar, &e. By Robert R. Peakce, Esq., of Gray's Inn, Barrister at Law. 8vo. 8s. cloth. ' Baker's Practical Compendium of the Recent Statutes, CASES, and DECISIONS affecting the OFFICE of CORONER, with Precedents of Inquisitions, and Practical Forms. By William Bakek, Esq., one of the Coroners for Middlesex, 12mo. 7s. cloth. Greening's Forms of Declarations, Pleadings and other PROCEEDINGS in the Superior Courts of Common Law, with the Common Law Procedure Act, and other Statutes; Table of Officers' Fees ; and the New Rules of Practice and Pleading, with Notes. By Henry Greening, Esq., Special Pleader. Second Edition. 12mo. 10s. 6d. boards. Browne's Practical Treatise on Actions at Law, em- bracing the subjects of Notice of Action; Limitation of Actions; necessary Parties to and proper Forms of Actions, the Consequence of Mistake therein ; and the Law of Costs with reference to Da- mages. By Rowland Jay Browne, Esq., of Lincoln's Inn, Special Pleader. 8vo. 1 6s. boards. Seane's Law of Blockade, as contained in the Judgments of Dr. Lushington and the Cases on Blockade decided, during 1854. By J. P. Deane, D.C.L., Advocate in Doctors' Commons. 8vo. 10.?. cl. Cutler on the International Law of Navigable Rivers. 8vo. Is. 6rf. sewed. Linklater's Digest of and Index to the Hew Bankruptcy Act, and the accompanying Acts of 1869. By John Linklatbr, Solicitor. Second Edition. Imperial 8vo. 3s. 6d. sewed. Pothier's Treatise on the Contract of Partnership. Translated from the French, with Notes, by O. D. Tudor, Esq., Bar- rister at Law. 8vo. 5s. cloth. & — — O— _ —& MESSRS. BUTTERWORTH, 7 FLEET STREET, B.C. 45 Norman's Treatise on the Law and Practice relating to LETTERS -PATENT for INVENTIONS. By John Paxton Norman, M.A., of the Inner Temple, Barrister at Law. Post 8vo. 7i. 6d. cloth. FrancUlon's Law Lectures. Second Series. Lectures, ELEMENTARY and FAMILIAR, on ENGLISH LAW. By James Francillon, Esq., County Court Judge. First and Second Series. 8vo., 8s. each, cloth. Foreshore Eights. Report of Case of Williams v. Nichol- son for removing Shingle from the Foreshore at Withernsea. Heard 31st May, 1870, at Hull. 8vo. Is. sewed. A Treatise on the Law of Sheriff, with Practical Forms and Precedents. By Richard Clarke Sewell, Esq., D.C.L., Bar- rister at Law, Fellow of Magdalen College, Oxford. 8vo. 1 A Is. Outlines of Military Law and the Laws of Evidence. By H. B. Franklyn, LL.B., Barrister at Law. 12mo. 4s. 6d. cloth. Dwyer's Militia Laws and Regulations. A Compendium of the PRINCIPAL LAWS and REGULATIONS relating to the MILITIA of GREAT BRITAIN and IRELAND. By Edward DwYEH, B.A., of Lincoln's Inn, Esq., Barrister at Law. I2mo. 5s. 6d. Drainage of Land: How to procure Outfalls by New Drains, or the Improvement of Existing Drains, in the Lands of an Adjoining Owner, under the Powers contained in Part III. of the Act 24 & 25 Vict., cap. 133, 1861 ; with Explanations of the Provisions, and Suggestions for the Guidance of Landowners, Occupiers, Land Agents and Surveyors. By J. Wm. Wilson, Solicitor. Feame's Chart, Historical and Legigraphical, of Landed Property in England, from the time of the Saxons to the present jEra, displaying at one view the Tenures, Modes of Descent and Power of Alienation of Lands in England at all times during that period. On a sheet, colored, 6s. ; on a roller, 8s. Speech of Sir R. Palmer, ft.C, M.P., at the Annual Meeting of the Legal Education Association in the Middle Temple Hall, 1871, with a Report of the Proceedings. 8vo. Is. sewed. Law Students. Full Report of the Proceedings of the First General Congress of Law Students' Societies. Held at Birming- ham 21st and 22nd May, 1872. 8vo. 2s. sewed. Legal Education : By W. A. Jevons. A Paper read at the Social Science Congress at Leeds. 1871. 8vo. 6d. sewed. The Ancient Land Settlement of England, A Lecture delivered at University College, London, October 17th, 1871. By J. W. Willis Bund, M.A., Professor of Constitutional Law and History. 8vo. Is. sewed. . — ■ — & 46 WORKS PUBLISHED BY MESSRS. BUTTERWORTH. 3Bttlmmtml IlaiB. The Case of the Rev. G. C. Gorham against the Bishop of Exeter, as heard and determined by the Judicial Committee of toe Privy Council on appeal from the Arches Court of Canterbury. By Edward F. Moore, M.A., Barrister at Law, Author of Moore's Privy Council Reports. Eoyal 8vo. 18s. cloth. Coote's Practice of the Ecclesiastical Courts, with Forms and Tables of Costs. By Henry Charles Coote, Proctor m Doctors Commons, &c. One thick Vol. 8vo. 28s. boards. Burder «• Heath. Judgment delivered on November 2, 1861, by the Right Honorable Stephen LusHiNGTON,D.C.L.,Dean of the Arches. Folio, Is. sewed. The Law relating to RituaUsm in the United Church of England & Ireland. By F. H. Hamel, Esq., Barrister at Law. 12mo. Is. sewed. Archdeacon Hale's Essay on the Union between Church and STATE, and the Establishment by Law of the Protestalnt Re- formed Religion in England, Ireland and Scotland. By W. H. Hale, M.A., Archdeacon of London. Read at the Visitation of the Clergy, May 14, 1868. 8vo. Is.' sewed. Judgment of the Privy Council in the Case of Hebbert V. Purohas. Edited by Edward Bullock, of the Inner Temple, Barrister at Law. Royal 8vo. 2s. 6d. Judgment delivered by Eight Hon. Lord Cairns on behalf of the Judicial Committee of the Privy Council in the Case of Martin V. Mackonochie. Edited by W. Ernst Browning, Esq., Barrister at Law. Royal 8vo. Is. 6rf. sewed. Judgment of the Right Hon. Sir Robert J. Phillimore, Official Principal of the Court of Arches, with Cases of Martin v. Mackonochie and Flamank v. Simpson. Edited by Walter G. F. Phillimore, B.A., of the Middle Temple, &c. Second Edition, Royal 8vo. 2s. 6d. sewed. The Judgment of the Sean of the Arches, also the Judg- ment of the PRIVY COUNCIL, in Liddell (clerk) and Home and others against Westerton, and Liddell (clerk) and Park and Evans against Beal. Edited by A. F. Bayford, LL.D. : and with an elaborate analytical Index to the whole of the Judgments in these Cases. Royal 8vo., 8s. 6d. sewed. The Case of Long ij- Bishop of Cape Town, embracing the opinions of the Judges of Colonial Court hitherto unpublished, together with the decision of the Privy Council, and Preliminary Observations by the Editor. Royal 8vo., 6s. sewed. Schomberg's Acts for the Commutation of Tithes in England and Wales ; with Notes, Observations, and an Epitome of the LawofTithes. 2nd. Ed. B5rJ.T.ScH0MEERG,Esq.,Q.C. 12mo.7s.6d.cl. The Law of the Building of Churches, Parsonages and Schools, and of the Division of Parishes and Places— continued to 1874. By Chas.PeancisTrowee,M.A., Barrister at Law. Post 8vo. 9s. cl. The History and Law of Church Seats or Pews. By Alfred Hbalbs, F.S.A., Proctor in Doctors' Commons. 2 vols. 8vo. 16s. cloth. &- PREPARING FOR PUBLICATION. A complete Code of the Law of Marine Insurance, embracing every variation of Principle iu England and America. By F. O. Crump, uf the Middle Temple, Esq., Barrister at Law. In 1 vol. royal 8vo. The Third Edition of Glen's law of Highways, in 8vo. The Seventh Edition of the Practice in Common Form of the Probate Division of Her Majesty's High Court of Justice. By Hehby Charles Coote, F S.A , Proctor in Doctors* Commons. Also the Practice of the same Division in Contentious Matters. By T. Hutchinson Tristram, D.C.L., Advocate and Barrister at Law. In I vol. 8vo. A Compendium of the Laws of Joint Stock Companies of Foreign Countries. By Henry D. Jencken, Lincoln's Inn, Barrister at Law, etc. etc., one of the Authors of & Compendium of Modern Roman Law, etc. etc. In 8vo. The Fourth Edition of Starkie's Law of Slander and Libel, including the Pleading, Practice and Evidence, Civil and Criminal, with Prece- dents: also Malicious Prosecutions, Contempts of Court, &c. By H. C. FoL- KARD, Esq., Barrister at Law. In ] vol. 8vo. The Fourth Edition of Powell's Principles and Practice of the Law of Evidence. By John Cutler, B.A., Barrister at Law, Professor of English Law and Jurisprudence, and Professor of Indian Jurisprudence at King's College, London; and Edmund Fuller Gki^pin, B.A., Barrister at Law. Id 1 vol. post Kvo. A Collection of Mortgage Precedents and Decrees ; intended as a Companion Work to the General Law of Mortgage. By W. R. Fisher, Esq., of Lincoln's Inn, Barrister at Law. In 1 vol. Royal 8vo. The Third Edition of the Law of Mortgage, and other Securities upon Property. By William Richard Fisher, of Lincoln's Inn, Esq., Barrister at Law. In 2 vols, royal 8vo. Imprinted at London, uvmber Seuen in Flete strete within Temple barre, whylom the signe of the Hande and starre, and the Hovse where lined Richard Tottel, printer tg Special palents of tlje toftes o( tlje Common latoe ill the seueriil reigns of Kng Edw. VI. and of the qvenes Murye and Elizabeth. 0__ ^ Fublislied, in Svo.jpricels.fby Post U. Id^yOfter each respective PreHiimnary Examination for Solicitors in Febnm^i May, Jtily and October, CONTENTS. No. XV.— July, 1874. I. Special Examinatton Notice*. II. Tlie Inrorporalion of the Inoa of Cpurt And the proposed Law Univer>-iLy. HI. Orthography of Proper Names. IV. Railtng- In Courts of Law. V. "Abnence of Mind." VI. ErslclDC DPbaliuR: Society. VII. The .Quetiifnns of ibe Fre- llmlnary Examination of the J5th and Ibtii of JULY, with the Answers. Vllf. Review of the July Examination. IX. Answers tn Coi respondents. No. XtV.— May, 1B74. I. Exaoiinatton Notices. II. The Choice of aProfession and its Influence on the Miufi. 111. A Reflection. )V. "Never say Fall!'* V. The Quesiionsof the Prelirulnary Ex- amination nf the I3th and, Mth of MAY, with ihe Answers, VI. Suggestions to intending Cajiaidates. Vn. Answers lo Corre^pohdems. X[II.— FebriiaTy, 1B74 I. Special Exan^iuatioo Notices for Easter and Trinity Termi, 1874. f r. Ctuotatlons by Autnora and Advocates, III, " Men of Genius deliclent in Conversation." IV, The Questions of the Preliminary Examtnaiion of the 11th and 12lh of FEBRUARY, with the Answers. V. Review of the Februarv Examination, and a few SuggesLions, VI. Debating Societies. VII. An- swers lo Correspondents, &C. No. Xn,— October, 1873. I. Special Examination Notices for 1874.— II. Eminent Lawyers.— Ill, Rhetoric. — IV. A Summary of the Law of Torts— a Review. — V. The QuestloiiB of the Preltniioar.y Examli.atlon of the 29Lh and 30lh OCIOBBR, with the Answers.— VI. Review of the Uctober Examipaiion.andsuggestionsas to preparation for the next,— VII, Aiiewersto ('orresprindent-i, &c. No, xr.— Jiiiy, 1873. I. Special Examination Notices for Michaelmas Term.— II. Psycho- logical Enquiries.— Ill, Our Note- Books.— IV. A Few Hemarks on the Study of the Latin Language.— V. Recollections of Ancient Classical Writers— conriMKtfrf.-VIj The o- Questions of the Preliminary Examination of the l6th and 17th of July, with the Answers. — VH. Keview of the July Examination, — VIIX, Correspondence. - / No. X.— Mav, tS73. 1. Special Examination Notices, — II. Ladies a>Lawy*TH.-^III. Common Sense. —IV, The Advanlaees of Eduraiion.— V, Reviews of New Books, &c.— VI. Part I. Recollections of Ancit-nt Classical Writers. Part 11. Memoirs of Charles Dickens, Lord Lytton, John Stuari MiH-— VIL QuesLinns »f the I'reliminary Examination, 14th and 15lh MAY, 1879, witn the Answers.- VIII. Rei'iew of the May Examination.- IX. Correspondence. No. IX.—Febriiary, 1873. I. Exan.inatioo Notices. — II. The Amalgamation of the two Branches nf the PfofeoBion.— III. Sptcial Preparation for Examinaiions.— IV. The Power of Iniaginaiionl— V. Institutes of English Public Law: a Review.- VI. Synopsis hf leading Auihnm, Statesmen, Poetx and Philosophers.— Vir. The auestions of the Hrehmiuary Examination of the I2th and 13th of ' IEBRUARV, wilhlhe Answprti.— VIII. Review of the Ftbruary Examination.— IX. Corresponaence. ■■ No. VIII.— October, 1H72. I. Special Examination T^otices for 1873. II. "What leads to Success in Ufe'f" III. Brains— Quantity or Quality. ^ IV. A Retrospective Glance. V. Remarks on " Memory," continued.' VI, Synopsis of leading Authors, Statesmen, Poets and Philosophers. {.The List includes Memoirs of Tkackeray, Sir G. C, JjBwis, Admiral I'itzToy and several otfiers.y VII. 'iThe Questions of the Preliminai;?-' Examination of the 30ih and 31st of October, with the Answers.. VIII, Review of top October Examination. IX. Correspondence, No, VIL— July, lli72. I. Special Esamluation Noiices for MichaelmatiTerm, 1872, II.*' How many Hours a Day do you recommenrt me to study 1" III. Critical Kevrews. IV, A few Remarks ori the ImproveDient of the Memory. V. Svnopsis of leading Autnors, Statesmen. Poetn'and-PbilO'Ophers. CThe List tvcludes Notices of Ldrd Byton, Sir Robert i'ett. Lord Maeaulav and several olAtrtO VI. The Questions of the Preliminary Examination of the 17th and 18th of J UL,y, with the Answers. VII, Review of the July Examination. VIll. Correspondence. Ko. VI.— May. 1872. I. Special Examination Notice. II. How to become an Orator ; with Selec' tlons from the Speeches of Lord Brougham, Pitt, Curran, Daniel O'Conneil, Burlie. ihe late Earl of iJerbir, Mr. Gianstone, Mr. Di-raeli and others. HI, Synopsis of leading Authors, Statesmen, Poets and Ptiilobopheni. I v. The Quebtions of the Preliminary Examination of the isth and Ifilh of MAY, wllh the Answers, V. Revieiv of the May EAaniluatior, VI. Correspondence. No. v.— February, 1872. I. Examination Notices for 1872. H./fhe Latin Language ; the value of a knowledge of; its pronunciation, &c. Ill, A few Remarks on the Study of French. IV. Synopsis of leading Authors, Statesmen, Poets and Philosophers, v. The Questions of the Preliminary Examination of the 14th and l5th of February, with the Answers. VI. Keview of the February Examination. VII. Correspondence.; _ No. IV.— October,1871, I. Examination Noiices.&c. II. WhatEndowmenisareessen- tial to tho'^e aspiring to become Barristers and Solicitors? III. Lectures on Language. — Part III. IV. Synopsis of leading Authors, Statesmen, Poets and Philosophers. V The Questions of the Preliminary Examination held on the 25th and 26th days of OCTOBER, 1871. with the Answers, vi. Review of the ('ctober Examination. VII. Correspondence. No, III,— July, 1871. I. Miscellaneous Notices and Reviews. II, Lectures on Language. —Part 11. 111. Synopsis of leading Authors, Statesmen, Poets and Philosophers. IV. The Questions of the Preliminary Examination held on thelSthand I3th days of July, 1871. with the Answers, V. Review of the July Examination. VI. Correspondenee. £vo. II.— Miy, 1871. I. Miscellaneous Notices and Reviews of Rducatioual Works. II. Lectures on Language. I II., Synopsis of leading Authors, Statesmen, Poets and Philosophers. IV. The Questions of the Preliminary Examination held on the 10th and 11th days of May, 1871. with the Answers. V. Review of the May Examination and Hemarks on the Study of English History. VI. Correspondence, ,No. 1.— February, 1871. I. Introductory Remarks and Review of the past Examina- tions. IT. Essay on the Imperfections of the Orthography of the English Language. III, Synopsis of leading Authors, Statesmen, Poets and Philosophers. IV. The Questions of the Preliminary Examination held on the 15th and liith days of Fbb.IS?!* with Answers. V. Review of the February Examination, and names of best books to be studied, VI. Correspondence. 7 ]^AW -WORKS FOR STUDENTS. in Bvfi,3s,, hy post 3«. Id., after tU General JCtcaminations-fuM in each year, ; The Bar Examination Journal. Edited by A. D, Tvssen and Sir R. K.'Wilson, Bart., Barristers at Law. CWiTEKTS OF EACH NoMBER.— Lists of Subjects anfl tlie Papers in both-tlic General Examination for all Students, and also in Indian Law for Indian Student's, tcilh IheAmwers; Notices as .to the Examinations, &c. In %vo., Is., iy post Is. Id., regule^^on tlw imrning of the second day mfter each .respective Examhrntion in Ililary, Easter, Trilby and Michaebnas Terms in each year. The Law Examination Journal and Law Student's M AGAZIN E. Editedby H, JS. Moziey, Esq., Barrister at Law; CoKTESTS or EACH NoMBBR.— Leafling Articles by the Editor; Reviews of Books J Saminary of new Decisions in Banco and at Nisi Prius ; Analysis . of the more ifnpdrtant practical Statutes of t\& Session; Intermediate Examination Questions and Answers j Final Examination Questions and Answer's ; I^otes on the Examinations ; Correspondence. In Sieoi,. pi^-ce Is., by, past Is. Id., regvlaHy continued as soo% as praAicable after each respective Preliminai'y Enaminutionfor Solicitoh iit. Felh'vary^Iay, Jifly and Octaler in each year, The PreliminaiTr Examina;tion Journal and Student's LITERAliY MAGAZINE. Edited by James T-rle Beniiam, fortfterly of Iving'S College, Loudon. iCotff UNTS oPf^AcnJ!luHK£R. — Remarks and R'cviewot the past Examinations ; Essays on jjanguagV;' Synopsis' of leadihaAilthors, Statesmen, Poets, and Philosophers ; The Questiobs asked at theBjeliminary Examinations, with .tlve Answer's ; Review of the Kxaminatjorts and namesof best books to.be studied'; Correspondence. ' r Mr. Seijeant Stephen's Blackstone's Commentaries on the Laws of England. 7tli Edit. By James SxEPhEN, Esq., LL.D., Judge of County Courts, &c. 4 vols. 8vo. ■17. 4s. cfoth. Goldsmith's Doctrine and Practice of Equity: or i. concise Outline of Proceedings in the High Court of Chancery. Sixth Edition. 8vo. 18s. cloth. " A well-kuown students' book; the best, because the most complete, yet sinipliiied, instructor ever provided for \\\m."^-Lavj Times. Tttdor's Selection of Leading Cases on Real Property, Conveyancing, Wills aud Deeds. Second Edit. lloy. 8vo. 42s. cl, Uosely's Articled Clerks' Handy Book, with directions &s to course of Study and other useful Information. 12mo. 7s. cloth Braiham's Student's Guide to the Preliminary Examina- tion for Attorneys, and Solicitors. By. J. E. Benham,- of Jvirfg'§- College, London. 12nio. 3s. cloth> *} It will become auseful |;uide and instructor not only to law. students, but'to every student who is preparing for a preliminary examination.** — Law Journal, Kelly's QpnTeyancihg Draftsman. Post Svo. 6s. cloth. *' A very useful little book for conv'eyancingjpractitioners, i,e. for solicitors and studChts." — Law Magazine. Underhill's Law of Torts or Wrongs. Pok 8vo. 6s. el. " He has set forth the elements of the law with clciiriKss and accuracy.**?-^ Lati: Time$'. * ?-- .■J^J>..ffi'M:i.'.a?i;v R