iiaraljall lEquttg QloUerttott C6tft of IE. 3(- JMat0ljaU. ^^•^- ^- 1394 CORNELL UNIVERSITY LIBRARY WIS Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085501710 A MANUAL EaUITY JUEISPRUDENCE FOB PKACTITIONERS AND STUDENTS, FOUNDED ON THE WOBKS OP STORY AND OTHER WRITERS, COMPRISING THE FUNDAMENTAL PRINCIPLES AND THE POINTS OF EQUITY ■USTJALLT OCCUEEING IN GENEEAL PEACTICE. BY JOSIAH W. SMITH, B.C.L., Q.C., AUTHOR OF "a COMPENDIUM OF THE lAW OF BP:dL AND PERSONAL PROPERTY,' "a manual of common law," etc. FIFTEENTH EDITION SYDNEY E. WILLIAMS OF LINCOLN'S INN, BARRISTER-AT-LAW, AUTHOR OF "THE LAW OF ACCOUNT," "THE LAW RELATING TO LEQXL REPRESENTATIVES," "THE LAW AND PRACTICE RELATING TO PETITIONS," "forensic FACTS AND FALLACIES," ETC. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE. 1900. ^lozni BRADBDRV, AGNEW, & CO. LD., PRINTERS, LONDON AND TONBRIDGE. PEEFACE THE FIFTEENTH EDITION. Since the date of the Fourteenth Edition, the Partnership Act, 1890; the Custody of Children Act, 1891 ; the Mortmain Act, 1891 ; the Voluntary Conveyances Act, 1893 ; the Trustee Acts, 1893 and 1894 ; the Judicial Trustees Act, 1896 ; and the Land Transfer Act, 1897, with other statutes, have been passed, and many important cases have been decided which affect the subject-matter of this Work. In the preparation of this Edition, the design has been to shorten and simplify, where feasible, the statements of the principles of Equity, and to make the additions and alterations necessitated by recent legislation and decisions of the Courts. A selection of recent cases to December, 1899, which appeared most appropriate to the object and scope of the Work, has been added. For other eases omitted from want of space, the reader is referred to the Works on which this Manual purports to be founded. The Trustee Act, 1893, and the Land Transfer Act, 1897, Part I., the provisions of which have been incorporated in the text, have, on account of their importance, been set out in the Appendix. S. E. W. Lincoln's Inn, Jan/uary, 1900. PEEFACE TO THE SECOND EDITION. The writer of these pages, in publishing the First Edition, was under no apprehension that a work answering to the title of the present little book would be deemed unnecessary. On the contrary, he was not aware of the existence of any book purporting to give a succinct yet comprehensive view of the leading principles of Equity Jurisprudence ; and he believed that the want of a book of that description was greatly felt by students, and indeed by many practitioners in each branch of the profession. For the student labours under great disadvantages when he enters upon the perusal of a large Treatise without having previously read any smaller work upon the same subject ; and after he has read a work of two volumes, he is able accurately to retain but few points in his memory — far fewer than he would after a careful perusal of a condensed work. And the practitioner often stands in need of a body of points and principles, well fixed in his mind, as his constant guide and aid amidst the rapid occasions of daily practice: and yet it is impossible for him to become possessed of such a body of knowledge, except by the help of some succinct view of Equity, or by the experience gained during long and extensive practice. Vi PEEFACB TO THE SECOND EDITION. The Manual is founded on the "Commentaries on Equity Jurisprudence" of the late Joseph Story, LL.D., one of the Justices of the Supreme Court of the United States (a) ; and it is of a semi-original character, hearing the same relation to the Commentaries, as the Commentaries hear to the treatises and reports on n-hich they are founded. The division of the subject is original. And although many passages are mere extracts, yet the selection of such passages as expressed in the fewest words the pith of whole sections, or that view of a subject which seemed to be the more correct, involved considerable deliberation and dis- crimination. And, taking the Manual as a whole, there has been the same process of analysing, arranging, digesting, defining, distinguishing, deduc- ing, qualifying, and commenting, as in the generality of legal treatises ; and the reader will scarcely suppose the amount of close consideration which has been bestowed upon so small a book. As the learned judge seems to have availed himself of most of the treatises, as well as of the reports, in the composition of his Commentaries, there appeared to be no necessity, in general, for the writer's con- sulting other works besides the Commentaries, while engaged upon the Manual, unless he had designed to enter more into detail. At the same time he has written under the light derived from the previous perusal of other works. And he has noticed several recent enactments which, as not applicable to America, the learned judge has omitted. With regard to the principle of selection, the writer has endeavoured to collect together, under appropriate (a) The third and subsequent editions are also founded on Spence's Equitable Jurisdiction of the Court of Chancery. PREFACE TO THE SECOND EDITION. vii heads, the points usually occurring, and necessary to be accurately known, and constantly borne in mind by every Chancery and Conveyancing Counsel, and by every Solicitor ; and for that purpose he has laboured to extract, and mould into a concise and perspicuous form, the essence of the Commentaries, which com- prise upwards of 1,700 pages ; omitting points of law in some instances, and such cases in Equity as are of a peculiar nature and not likely to occur again ; and also omitting, except where it seemed advisable to use them as examples, such cases as are of so simple and obvious a character, that the decisions respecting them embody nothing more than so plain and necessary an appUcation of points and principles stated in the work, that it would be sure to suggest itself at once, without variation, to the minds of dififerent individuals. . . . J. W. S. CONTENTS. Introduction. Sect. I. — Of the yaturc of Equity Jurisprudence, and the Extent of Equity Jurisdiction ... 1 n. —Of the (feneral Effect of the Judicature Acts, as regards Equity Jurisdiction and, Jurisprudence 9 HI. — Of the General Maxims of Equity Jurisprudence. 12 rV. — Of the Division of Equity . . . . .27 TITLE I. OP EEMBDIAL EQUITY. SPECIMCAXLY SO TERMED. Chap. I. — Of Accident 28 n. — Of Mistake .35 m. — Of AcTUAi Fraud .... .43 IV. — Of Constructive Fraud . . .56 TITLE II. OP EXECUTIVE EQUITY. Chat. I. — Of Legacies and Portions .... 90 n. — Of Donationbs Mortis Causa ... 97 m. — Of Express Private Trusts, evidenced by SOME Written Document ... 99 rV. — Of Express Charitable Trusts . . .122 V. — Of Implied Trusts 128 VI. — Of Constructive Trusts .... 145 VII. — Of Trustees ytND Others standing in a Fiduciary Eelation 154 VIII. — Of the Specific Performance of Agree- ments AND Duties not arising from Trusts 192 CONTENTS. TITLE III. OF ADJUSTIVE EQUITY. PAGE 256 256 298 302 305 309 317 323 323 Chap. I. — Of Account in General . . • 226 II. — Of Administkation .... 231 III. — Of Mortgages, .Pledges, and Liens . Sect. 1. — Of Legal Mortgages of Real Property 2. — Of Equi'table Mortgages 3. — Of Mortgages and Pledges of Personal Property ..... 4. — Of Liens ..... IV. — Of Apportionment and Contribution V. — Op Partnership ... VI. — Of Certain Special Adjustments in the Case of Debtors and Creditors Sect. 1. — Of the Marshalling of Securities . 2. — Of the Mutual Bight to the Benefit of Securities between a Creditor and Sureties ; and of the Release if Sure- ties 324 3. — Of Set-off or Counter-claim. . . 326 VII. — Of certain Miscellaneous Cases of Ac- count 330' VIII. — Of Damages and Compensation . . . 332 IX. — Of Election 337 X. — Of Satisfaction 345- XI. — Of Partition; of Settlement of Boxm- DARIES; and of ASSIGNMENT OF DoWER . 353 Sect. 1. — Of Partition 353 2. — Of the Settlement of Boundaries . . 356' 3. — Of the Assignment of Dower . . 357 TITLE IV. OF PEOTECTIVE EQUITY. IRRESPECTIVE OF DISABILITY. Chap. I.— Of Protection prom Litigation or Injury AFFORDED BY THE CANCELLING, DELIVERING UP, AND SECURING OF DOCUMENTS . . 359' II.— Of Protection from Litigation respecting THE Property of Another, by means of Interpleader ggg. CONTENTS. xi Oh. m. — Op Protection from repeated or renewed Litigation, afforded by Decrees itpon Bills of Peace or Proceedings to ESTABLISH WiLLS .... 369 Sect. 1.-0/ Bills of Peace .... 369' 2. — Of Proceedings to establish Wills . . 371 IV. — Of Protection from Loss or Injury by Injunction 373, v.— Of Protection from Another's Abscond- ment, by the Writ of Ne Exeat Eegno 382 VI.— Of the Protection of Property, by taking AVAY the Possession or Eeceipt thereof, OR BY REQUIRING SECURITY . . . 384 TITLE V. OF PEOTBGTIVE EQUITY. IN FAVOUR OF PERSONS UNDER DISABILITY (a). Chap. I. — Of Infants 388. II. — Of Married Women 401 Sect. 1. — The Powers which Husband and Wife have, in Equity, of contracting with, and giving and granting to, each other 401 2 — Pin-money and Paraphernalia . . 405^ 3. — The Wife's Separate Estate in Cases not affected by the stat. 45 tSs 46 Vict, c. 75 ; and under that Statute . . 407 4. — The Wife's Equity to a Settlement or Maintenance out of her own Property 434 5. — Some Miscellaneous Points . . . 442 APPENDIX. Trustee Act, 1893 447 Land Transfer Act, 1897 471 INDEX 475. (a) Some observations are made on transactions with persons of unsound mind in the chapter on Actual Fraud. But the general subject of persons of unsound mind does not properly form part of Equity Jurisprudence, and therefore is omitted in this Edition. TABLE OF CASES. [The figures refer to the paragraphs, and not to the pages, except where otherwise indicated.] A. A. &B.,Re,191 Abbott V. Sworder, 122 Abdy, Be, 897 Aberaman Ironworks v. Wiokens, 415 Ackroyd, Ex parte, 614 — V. Smithson, 295 Adair c Shaw, 370 Adams and the Kensington Vestry, In re, 233 Addison v. Cox, 436 Adsetts I'. Hives, 133 Agar V. Fairfax, 715 Agar-BUis, In re, Agar-Ellis v. Lascelles, 796a Agra Bank, Exparte, 436 — V. Barry, 534 Ajello V. Worsley, 22 Alderson i'. Elgey, 556a — V. White, 506 Aldrich v. Cooper, 493 Aleyn v. Belchier, 201 Alison, III re, 509, 567 Allan V. Gott, 477 Allcard v. Skinner, 32, 148, 152 Allen V. M'Pherson, 105 Alt V. Alt, 450 Alton / . Harrison, 183 Ames V. Taylor, 345 Anderson v. Abbott, 689, 823 Andrew v. Cooper, 488 Angus V. CUfiord, 112, 112a Ann, Re, 857a Anthony, Re, 483 Arden v. Arden, 535 Armstrong, Re, 904b Arnold v. Burt, 804 Ashburner, Fletcher v. 47, 409 Ashton's Charity, Re, 277 Ashworth v. Munn, 477 Atkinson, In re, 439 — V. Smith, 196, 574 Attorney's Act, 1870, Re, 157 Attorney- General o. Alford, 358> — V. Beverley (Corp. of), 277 — ('. Chesterfield (Earl of), 465 — V. Glerkenwell Vestry, 762 — V. Gaskill, 12 — V. Trin. Cull. Cam- bridge, 277 Austin V. Mead, 220 Ayerst v. Jenkins, 732 Ayles V. Cox, 4'24 Aylesford (Earl of) v. Morris,. 168, 171 Ayres, Re, 857 B. B V. W , 725, 727 — W r. 725, 727 Backhouse v. Charlton, 601 Bacon, Re, 294, 473 Bagot V. Bagot, 480. 764, 76 Bagshaw v. Winter. 884 Bagster v. Fackerell, 300 Bahin v. Hughes, ;J72 Bailey's Settlement, In re, 216 Bailey v. Barnes, 190 — V. Hobson, 769 Baillie v. Baillie, 50 Bainbrigge v. Browne, 149 Baker v. Bradley, 149 — V. Sebright, 767, 763, 764 XIV TABLE OF CASES. Baltimore (Lord), Penn v. 54 Banner, Ex parte, 131 Barclay, Re, 358b Barker, Re, 348a — V. Cox, 416 Barnard v. Ford, 875 Barnes v. Bond, 625 — V. Eoss, 806 Barr's Trust, Iii re, 436 Barrett, Be. 468 — V. Hartley, 365 Barrington, Re, 765 Barron v. Willis, 152 Barrow's Case, 376 Barrow v. Barrow, 871, 891 Barry,' Agra Bank v. 634 — V. Oroskey, 112 — i\ Stevens, 454 Baseley, Huguenin v. 148, 200 Baskoomb v. Beckwith, 424 Basset (•.Nosworthy,34, 338, 376 Bate, Re, 475 Bateman v. Faber, 853 Batten, Re, 252a Battison v. Hobson, 188' Battyany v. Boucb, 609 Baud V. Fardell, 351 Bayspoole ^'. Collins, 196 Beak v. Beak, Beak's Estate, In re, 220 Beale v. Symonds, 591 Beaumont v. OKveira, 496 Beck V. Pierce, 858, 866 Beddow K. Beddow, 443 Beeoherc. Major, 313 Beevor v. Luck, 554 Beioley v. Carter, 424 Bell V. Carter, 509 — V. Holtby, 424 Bellamy and Metropolitan Board of Works, In re, Zola,, 572b Benett v. Wyndham, 357 Bennett v. Houldswortb, 704 — V. Lytton, 383 Bennison, Re, 366 Bentink, Be, 635b Bentley v. Craven, 160 Benwell v. Inns, 141 Benyon v. Benyon, 714 Beniaid v. Minsbull, 235 Besant, In re, 796, 799 — V. Wood, 823, 893, 896 Bethell v. Abraham, 707 Beyfus, Re, 416 Beynon v. Cook, 169 Biddle v. Jackson, 816 Biggs V. Peacock, 716 Birchall, Be, 88 Bird, Iiire, Oriental Commercial Bank v. Savin, 357 Biron v. Mount, 250 Bisbop, Ex parte, 635a Blaiklook v. ttrindle, 686 Blake, Be, 467 — V. Gale, 32, 383a Blakely Ordnance Co,, Be, 439 Blandy v. Widmore, 51, 316 Blatcbford v. WooUey, 856 Bloye's Trust, In re, 154 Blytb V. Fladgate, 372 — V. WbiflBln, 454 Bold V. Hutchinson, 93 Bolton V. Curre, 381, 853 Bond V. England, 479 Bone V. Pollard, 313 Bonbote v. Henderson, 92, 733 Bostock V. Floyer, 357 Boston, &c. V. Aiisell, 160 Bosville, Glenorcby (Lord) v. 30, 89, 236, 237 Boswell V. Coaks, 604 Botbamley v. Sberson, 499 Bougbton V. Bougbton, 681 Boulter, In re, ^x^arie National Provincial Bank, 89 Boulton, Ex parte, 436 Bowen, Be, 278 Bowes, Strath more (Countess of) V. 182 Bown, Re, 851 Box V. Barrett, 695 Boyd V. Allen, 716 Boyes, Be, 234, 235 Boyse v. Eossborough, 131, 754 Bracken, Be, 383 Bradford Bank v. Briggs, 530 — Eouse V. 164 Bradwell v. Catchpole, 372 Braithwaite, Re, 208 Breton's Estate, In re, 230, 421, 824 Breton v. Mockett, 233 — V. Woollven, 824 Briant, Re, 876 Brice v. Bannister, 435, 436 — V. Stokes, 348, 368 Bridger, Be, 497 — V. Deane, 202 TABLE OF CASES. XV Brier, Be, 368a Briggs I'. Penny, 235, 287 Bright V. Larcher, 477 — ('. Legerton, 32 Bristow i'. Ward, 681 Britain v. Eossiter, 448 British Mutual Investment Company t: Smart, 597 Broadbent i'. Barrow, 477 Brocklesby c. Temperance, &c. 535 Brooke, In re, 304, 847 — y.Eooke,/»i.reBrooke,304 — V. Eounthwaite, 416 Brooking v. Maudslay, 732 Broughton v. Broughton, 345 Broun v. Kennedy, 93 Brown, Se, 83 — u. Brown, 689 — v. Collins, 801 — V. GeUatly, 359 — Shipley & Co. v. Kough, 435, 614a — V. Smith, 806 — V. Tanner, 436 Brumridge v. Brumridge, 369 Brunton v. Electrical, &c. 616 Bryant v. Hickley, S06 Bubb V. Telverton, Ex parte Hastings, 768 Buccleuch (Duke of) v. Metro- politan Board of Works, 440 Buchanan v. Hai-rison, 295, 300 Buck V. Eobson, 435 Budge V. Gummow, 352 BuUer v. Plunkett, 436 Bute V. James, 751b Butler V. Butler, 822 — V. Gumpston, 856 Butters, Ex parte, 572a Byram v. Tull, 841a CabaUero v. Henty, 190, 424 Cabbum, Be, 467 Cadman v. Cadman, 805 Camden v. Murray, 800 Campbell's Trusts, In re, 341 Campbell v. Holyland, 548 — V. Wardlaw, 765 Cann v. Cann, 355 — V. Wilson, 112 •Caplen, Be, 230 I Carew's Estate, Be, 178 Carew r. Cooper, 429 Carpmael v. Powis, 87 Carr's Trusts, In re, 880 Carter r. Wake, 605, 612 Castell & Brown, Be, 535 Castle V. Wilkinson, 416 Caton V. Caton, 448 Cavander v. Bulteel, 187 Cave V. Cave, 436 Cavendish v. Dacre, 679 — I'. Geaves, 661 Chancey's Case, 712 ChapKn, Ex parte, 183 Charlesworth v. Jennings, 112a Chauutler's Claim, In re Hasel- . foot's Estate, 604 Cheslyn v. Dalby, 440 Chesterfield v. Janssen, 165 Chetwynd v, Morgan, 41 Chichester, Coventry v. 705 — (Lord) V. Coventry, 704, 706 Chilhngworth v. Chambers, 372 Chilton V. Progress, &c. 773 Chowne v. Baylis, 435 Christian v. Whitaker, 830a Christie v. Davey, 770 — V. Taunton, 439 Christison v. Bolam, 604 Chubb V. Stretch, 856 Clark V. Leach, 639 Clarke v. Franklin, 299 — V. Hilton, 301 — In re, 796a — V. Palmer, 535 Clarksont;. Henderson, 517 Clay, Smith v. 32 Clayton's Case, 464 Cleaver v. Mutual, &c. 844 Clegg V. Edmonson, 32, 333 — u. Eowland, 383 Clement o. Cheeseman, 220 Clifford, Angus v. i 12 Olive V. Carew, 856 Coates ('. Coates, 712 Cochrane u. Willis, 87, 424 Cockoroft, Be, 406 Codrington v. Lindsay, 689 Coles V. Peyton, 635 OoUins V. Turner, 149, 150 Colonial Bk. v. Whinney, 430 Colverson v. Bloomfield, 782 Conron v. Oonron, 305 XVI TABLE OF CASES. Cook V. Addison, 363 — V. Gregson, 469 — V. Eosslyn (Earl of), 741 Cookson, Somerset (Duke of) v. 791 Cooper, Ex parte, 313 V. Crabtree, 770 — V. Joel, 725 — V. Kynook, 237 — V. Phibbs, 87, 89 — V. Wormald, 376 Cordingley c. Cheeseborough, 415 Cork (Earl of) v. Eussell, 555 Cosnabam ". Grioe, 223 Cotterell v. Stratton, 521 County of Gloucester Bank v. Budiy, 786 Cousins, Re, 190 Coventry v. Chicbester, 705 — r. Coventry, 477 Coverdale v. Eastwood, 450 CowgUl V. Ebodes, 753 Cox, Addison i'. 436 — r. Bisbop, 438 — i'. Hickman, 637 Cradock v. Owen, 294 Ciampton r. Varna EaUway Company, 405 ( 'rawford i'. Toogood, 413 Credland -•. Potter, 530 Cricbton v. Cricbton, 712 Cross, Be, 461 Crowtber v. Elgood, 162 Croxton V. May, 883 Cuddee v. Eutter, 405, 453, n. Cummins v. Eletcber, 554 — V. Perkins, 786 Curteis c Wormald, 298a Curwen r. Milburn, 616 Cutler, //( re, 871 D. Dagnall, lie, 857 Dally V. Wonbam, 160 Dance v. Goldingbam, 377 Daniels v. Davison, 190 Danson, lie, 341a Darbey v. Wbitaker, 440 Darby v. Darby, 647 Dartmoutb(Earl of), Howe v.Sdd Dasbwood v. JermjTi, 177a — ( . Magniao, 764 Davies, Me, 844 — V. Davies, 147 — V. Jenkins, 856 — V. Nioolson, 488 Davis V. Davis, 647 — V. Preetby, 529 — V. Ingram, 717 — V. Wbitebead, 179, 320, 576 Daw V. TerreU, 592 Dawson v. Bank of Wbitebaven, 555 — V. Beeson, 642 Day V. Brownrigg, 22, 762 — V. Day, 436 — V. Woolwicb Equitable Building Society, 357a, 572b Deane, Me, 202 Deare ii. Soutten, 904 Dearie r. Hall, 436 De Burgb Lawson, In re, 681 De Busscbe v. Alt, 33, 160 De Cordova v. De Cordova, 88 De Hogbton v. Money, 431, 731 Delmar, Be, 276a Denny v. Hancock, 424, 425 Dering v. Winobelsea (Earl of), ' 633 Derry v. Peek, 112a Devaynes r. Eobinson, 371 Devoy v. Devoy, 313 Dewar v. Maitland, 685 De Witte v. Palin, 805 Dicks /'. Brooks, 774 Diggles, Me, 233 Dilkes r. Broadmead, 487 Dillwyn r. Llewelyn, 731 Dimmook i: Halle'tt, 424 Diplook r. Hammond, 435 Di Sora c PbiUiijps, 5.S Dixie f. Wrigbt, 409 Dixon '•. Dixon, 855 — V. Muokleston, 592, 593 — V. Peacock, 628 Docker v. Somes, 345 Doe d. Hiscocks ■;;. Hiscocks, lOOi Doering v. Doering, 375 Doberty v. AUman, 763 Dolan V. Macdermot, 275 Douglas & Co., Me, 616 Dowse, Re, 712 Dowling V. Betjemann, 405 Drake r. Kershaw, 483 Drosier v. Brereton, 352 TABLE OF CASES. XVll Drover v. Beyer, 782, 784 Duffy's Trust, Re, 879, 891 , Duncombe v. Greenaore, 8ul, 872 Dunkley v. Dunkley, 883 Dunn ('". Flood, 377 Dye V. Dye, 823 Dyer v. Dyer, 311 E. Eads V. "Williams, 413 Eames c. Haoon, 502 East and West India Dock Co. V. Kirk. 441 Eaton V. Bennett, 91 Eaves !'. Hickson, 357 Ebbetts !■. Conquest, 190 Edward v. Cheyne, 855 Edwards v. Barnard, 649 — V. Carter, 132c — r. Freeman, 76a Egmont V. Darell, 753 Elcock V. Mapp, 294 Elgood V. Crowther, 162 Elibank (Ladv) v. Montolieu, 882 Elliot !'. Merryman, 192, 257 EUiott, Ex parte, 183 Ellison V. Ellison, 193, 230, 245, 421 Elmore v. Pirrie, 668 Elwes V. Elwes, 90 Emery, Re, 832 European Bank, Re, 618 Evans r. Bagshaw, 718 — (•. Bremridge, 658 — )'. Carrington, 898, 899, 900 — Williams v. 447, 448 Everitt V. Automatic, &c., 556a — V. Everitt, 733 Ewing ('. Orr-Ewing, 54 Eykyn's Trusts, In re, 313 Eyre, Re, 342 — V. Shaftesbury (Countess of), 792 P. Fabian, Nunn v. 447, 448 Fairclougb v. Marshall, 560 Fairer v. Park, 712 132o, Falcke v. Gray, 405, 424 Fane v. Fane, 87 Farquharson v. Floyer, 475 Farrand v. Yorks Bk., 529 Farrar v. Cooper, 440 Farrington v, Forrester, 652 Fenner v. Wilson, 762 Fenwick v. Clarke, 355 — V. Potts, 592 Fenwioke v. Clark, 355 Ferns v. Carr, 624 Field V. Peokett (No. 3), 402 Fitzgerald v. Chapman, 900 Plamank, Re, 854 Fleetwood, Re, 235 Fleming v, Buchanan, 475 — V. Hislop, 770 Fletcher, Re, 712 — V. Ashburner, 47, 409 Flint V. Howard, 652 Flower v. Sadler, 131 — and Metropolitan Board of Works, Re, 357, 367 Ford V. Olden, 553 — V. White, 598 Fordham v. Claggett, 786 Forshaw v. Higginson, 391 Foster, Re, 341a — and Lister, In re, 197 — V. Foster, 295 Fowler's Trust, In re, 681 Fox V. Mackreth, 333 PoxweU V. Van Grutten, 786 France v. Clark, 605, 611 Francis v. Clemow, 304 Frape, Re, 157 Freeman, Re, 763 — V. Pope, 183 French v. Hope, 53 Friend v. Toung, 462, 648 Frith V. Forbes, 614 Fry V. Lane, 123, 169 — V. Tapson, 252a FuHord, HiUiard v. 76a Furniss v. Phear, 100 Fytche v. Fytche, 697 G. a., Re, 809 Gale V. Gale, 422 Galland, Re, 616 XVlll TABLE OF CASES. G-alton V. Bmuss, 178 Q-ames, National Provincial Bank of England -y. 521 Grarbutt v. Pawcus, 158 Gardiner, Re, 904b Grarfltt v. Allen, 471 Q-arnbam v. Skipper, 187 Garth v. Cotton, 319 — V. Townsend, 79 GaskiU, Att.-Gen. v. 12 Gaunt, Speight v. 352a, 357 General Credit Co. v. Glegg, 612 Giacometti v. Prodgers, 871 Gibbins v. Taylor, 366 Gibbs V. Harding, 894 Gibson V. Goldsmid, 39 — V. Seagrim, 493 Gilbard, Gynn v. 801 Gilbert v. Lewis, 830 Gilbertson v. Gilbertson, 477 Gilchrist, Ex parte, Armstrong, Se, 904b Giles V. True, 486a Gill's Case, 663 Ginnever, Rowley v. 323 Gjers, Be, 763 Glasse v. Woolgar, 424 Glenorchy (Lord) v. BosviUe, 30, 89, 236, 237 Glover, Be, 230 Glyn, Harding v. 79, 233, 283 Golding, Ex parte, 331 Gordon v. James, 572a Grace, Ex parte., 618 Graham, In re, 801 — V. Drummond, 597 — V. Wickham (No. 1), 714 Great Northern Railway Co. v. Sanderson, o40a Greatorix v. Shackle, 740 Greedy v. Lavender, 886 Green v. Britten, 830 — V. Paterson, 230 — V. "Wynu, 164 Greenough v. Littler, 538 Greenwood v. Greenwood, 88 Greer v. Young, 617 — V. Edmondson, 233 — V. Wilson, 676 Gregson, Be, 663 GreviUe v. Browne, 304 Grey, Be, 851 Griffiths V. Porter, 356. Grogan v. McOormiok, 234 GuUick, Wolmerhausen v. 164 Guthrie v. Walrond, 830 Gynn v. Gilbard, 801 H. Hall, Ex parte, 435 — V. Hall, 200, 733 — V. Heward, 553a, 579 HaHett v. Hallett, 620 Halsey v. Brotherwood, 771 Hamilton, Be, 233 — V. Buckmaster, 424 Hampshire Land Co., Be, 436 Hancock v. Hancock, 830a Handford, Be, 857 Hannah v. Hodgson, 149 Harbin v. Darby (No. 1), 345 Harding v. Glyn, 79, 233, 283 — V. Harding, 435 Harkness, Be, 847 Harman v. Pisher, 247 Harris v. Mott, 848 — V. Watkins, 302, 304 Harrison v. Guest, 122, 123 — V. Randall, 391 Hart ?A Hart, 893, 894 — V. Swaine, 112a, 416 Harter v. Colman, 554 Hartland v. Mui-rell, 302 Hartopp V. Hartopp, 149 Hastings, Ex parte, Bubb v. Yelverton, 768 Hatten v. Russell, 413 Haygarth ■v.Wearing, 112a Haynes v. Doman, 141a Head v. Gould, 372 Heald v. Hay, 429 Heard v. Heard, 904 Hedgeley, Be, 830a Henry v. Armstrong, 200, 733 Hensman v. Eryer, 475 Hentjr V. Wrey, 201, 203a, 214 HeptiDstall V. Gott, 301 Heron v. Heron, 871 HetHng, Be, 357a Hewett, Be, 857 Hewisonu. Negus, 823 Heywood, Be, 474a Higginsv. HiU, 137 TABLE OF CASES. XIX Hill !'. Boyle, 431 — ('. Hicken, 663a Hillard i: PuKord, 76a Hilton i: Woods, 430 Hisoocks (Doe d.) v. Hisoocks, 100 Hitchcock r. Clendinen, 890 Hitchman r. Stewart, 635 Hoblj-n r. Hoblyn, 149 Hoddel ,•. Pugh, 411 Hodges V. Hodges, 853 Hodson i\ Heuland, 448 Hoghton V. Hoghton, 149 Holford, Be, 804 Holloway v. Eadolifle, 409 Holmes r. Millage, 786 — He, Sol Holmesdale (Viscount), Sack- ville-West c. 237 Hooper v. Smart, 415 Hope '•. D'Hedonville, 359 — Finch V. 53 — (•. Hope, 57, S50a Hopgood r. Parkin, 257 Hopkinson i: Bolt, 436 Hopwood V. Hopwood, 708 Horlock, Be, 712 Home-Payne, Hussey, c 179 Hosking v. Smith, 530 Howe V. Dartmouth (Earl of), 359 Hubbard < . Alexander, 714 Hudson V. Cripps, 204 Hughes, Be, 857a — V. Jones, 415 Huguenin v. Baseley, 148, 152, 200 Huish, Be, 712 Hulme V. Tenant, 830 Hirme v. Lopes, 351 Hunnings v. Williamson, 72 Hunt V. Furry, 804 — Pinney v. 754, 755 — Trego r. 141 Hunter v. Belcher, 460 — i;. Walters, 114, 115, 133 Huntingdon (Earl of) v. Hun- tingdon (Countessof), 320, 574 Hurst V. Hurst, 475 Hussey v. Horne-Payne, 179, 420 Hutchinson and Tennant, In re, 233 Hutton V. Eossiter, 112a I. Imperial Ijoan Co. c. Stone, 419 — Mercantile Credit Asso- ciation ('. Coleman, 333 Ingilby and Boak Insurance Co., Be, 343 Inman v. Inman, 536 Ion V. Ashton, 480 Irvine v. Sullivan, 234 Ivory, /)( re, 755 Jacob V. Isaac, 857 Jacubs /'. Rylance, 375 James c. Couchman, 200 James v. James, 441, 601 — V. Kerr, 124 — V. Smith, 445 Janssen, Chesterfield (Earl of) v. 165 Jarman's Estate, In re, 275 Jarratt v. Aldam, 147 Jay ('. Robinson, 830a Jefterys v. Jefierys, 421 Jegon V. Vivian, 749 Jenkins v. Jones, 541 Jennings, Charlesworth -y. 112a — ('. Jordan, 554 Jervis v. Wolferstan, 392a, 393 Jervoise v. Jervoise, 828 JodreU v. Jodrell, 826 Johnson v. Gallagher, 856 Jones, Ex parte, 132a — Be, 132c — V. Davies, 552, 574 — V. FerreU, 435 — V. Look, 421 — i.. Scott, 474 — V. Smith, 190 — V. Thomas, 740 — V. WiUiams, 472 Judkin, Rr, 808 Jupp, Be, 841a K. Kennreuther r. Grriselbrecht, 504a Kay V. Johnston, 323 Keane v. Eobarts, 370 XX TABLE OF CASES. Keech v. Sandford, 333 Keith V. Burrows, 63, 607, 608 Kelson v. Kelson, 193 Kemp v'. Burn, 400 Kempson v. Ashbee, 149, 150 Kennard v. Kennard, 79 Kensington (Lord)?'. Bouverie, 629 Kerr's PoHcy, In re, 600 Kidd, Be, 406 Killord V. Blaney, 478 Kilvert's Trusts, In re, 275 King-Harman k. Cayley, 804' Kimber v. Barber, 160 Emberley v. Dick, 443 Kincaid's Trusts, Inre, 871, 883 Kinnonl v. Money, 575 Kirkwood v. Thompson, 545, 555 Kirwan's Trusts, In re, 79 Knight V Knight, 888 Knox V. Gye, 461 — V. Mackinnon, 354 Kurtz V. Spenoe, 771 L. Lacon v. Allen, 592 Laing, Be, 352 Lake v. Oraddook, 315 — V. Gibson, 35 Lamare v. Dixon, 427 Lambarde v. Older, 663 Lambe v. Eames, 233 — V. Orton, 421 Lambert v. Thwaites, 284 Langdale (Lady) v. Briggs, 479 Langley, Be, 402a Larios v. Bonany y Gurety, 451 Lasoelles v. Butt, 720 Laver v. Fielder, 450 Lawes v, Lawes, 711 Lawton v. Elwes, 345 Lea V. Cooke, 276a Learoyd v. Whiteley, 352, 352a Lechmere v. Brotheridge, 848 — V. Lechmere, 51, 316 Lee V. Angas, 734 — V. Hewlett, 535 — V. NuttaU, 472 Leeds Banking Company, In re, 856 Legg V. Goldwire, 89 Lehmann v. McArthur, 32 Leighton v. Leighton, 709 Lempriere v. Lange,' 116 Le Neve v. Le Neve, 187 Leng, Be, 823a Leonino v. Leonine, 486b LesKe v. French, 690 Lester v. Poxcroft, 447 Letterstedt v. Broers, 396 Levy V. Stogden, 413, 424 Lewis, Be, 157 — Gilbert v. 830 — I'. Hillman, 154 — V. Mathews, 830 — V. Nobbs, 356 Life Association of Scotland !>. Siddal, 871 LUes V. Terry, 155 Lister, Poster and. In re, 197 Liverpool Marine Credit Com- pany t>. Wilson, 608 Lloyd V. Banks, 436 — V. Pughe, 825 Lloyd's Bank v. Bullock, 331 — V. Jones, 535 Looking v. Paxker, 667 Londesborough(Lord) v. Somer- ville, 310 Londop Chartered Bank of Aus- tralian. Lempriere, 830, 856 — and County Bank v. EadcHJfe, 682 — and BlackwaH Railway Co. V, Cross, 440, 762 Long V. Bowring, 453 . Longmate v. Ledger, 130 Lopes, Hume v. 361 Loughnan, Morley v. 130 Lovett V. Lovett, 754 Low V. Bouverie, 436 Loxley v. Heath, 450 Lucy's Case, 88 Lumley, Be, 251 Lush's Trusts, Li re, 887 Lyddon v. Moss, 165 Lyell V. Kennedy, 72, 736 Lyon f . Home, 200 Lyons (Mayor of) v. Advocate- General of Bengal, 276 Lytton V. Devey, 776 M. McCarogher v. Whieldon, 707 McCormick v. Garnett, 890' — V. Grogan, 234 McCreight v. Poster, 407 TABLE OF GASES. XXI Macdonald v. Irvine, 359 Mcdufl, Se, 275 McGrath, He, 796a McGregor r. McGregor, 893 McHenry r. Davies, 856 Mack V. Postle, 436 Maokay v. Douglas, 184 Mackenzie ;•. Childers, 204 — .. Hesketh, 416 Mackintosh v. Pogose, 823a Mackreth, Pox v. 333 — 0. Symmons, 327, 328 Maoleod v. Annesley, 352 M'Leod r. Drummond, 370 McManus c Cooke, 447 McPherson, Allen v. 105 — V. Watt, 154 Maddison v. Alderson, 448, 450 Maggi, He, 472 Magnus v. Queensland National Bank, 569a Mainland c. Upjohn, 551 Malcolm i\ Scott, 435 Mangles r. Dixon, 439 Manningford i'. Toleman, 316 March, In re, 841 Marlborough, Be. 179, 320, 575 Marsh r. Lee, 529 Marshall r. Fowler, 883 Martinson v. Clowes, 541 Mason Re, 8(i8 — r. Eeays, 717 — V. Westoby, 786 Massey v. Bowen, 830 Matheson v. Ludwig, 648 Maxim Nordenfelt, &c. r. Nordenfelt, 141a Mayd v. Field, 707 Mayfair, &c. v, Johnston, 715 Mead, Be, 220 Mecca, The, Be, 464 Meinertzhagen i'. Walters, 708 Mellor ?•. Porter, 538 Meluish ('. Milton, 105, 755 Mendes v. Guedalla, 356 Merchant Taylors' Company v. Attorney-General, 277 Metcalfe v. Hutchinson, 310 Meux V. Cobley, 763 Micklethwait v. Micklethwait, 767 Mildred v. Austin, 555 Miles V. Harrison, 496 Miller V. Cook, 168 Miller v. Sharp, 448 Mills V. Thurgood, 682 — V. Haywood, 413, 424 Milltown V. Stewart; 727 Mitchell r. Homfray, 148, 159 Mohan /•. Broughton, 383, 383a Money " Money, 815 Montague, Be, 323 — V. Sandwich (Earl of), 706 Moore r. Moore, 220 — V. Morris, 847 Morgan t;. Higgins, 156 — V. Minett, 155 Morley v. Loughnan, 130, 148 MorreU c Cowan, 856 — f. Wooten, 435 Mortimer v. Bell, 424 Morton and Hallett, Be, 343 Moseley v. Simpson, 441, 442 Moss, Lyddon v. 155 MostjTi ('. Mostyn, 100 — r. West Mostyn Com- pany, 117 Moxon V. Pajnae, 88, 108, 148 Mullings V. Trinder, 424 Mumford v. Stohwasser, 529 Munch I'. Cookerell, 371 Munt )'. Glynes, 851 MurreU c. Goodyear, 205 Murrey r. Parker, 96 Mussoorie Bank v. Eaynor, 233 Mutlow V. Mutlow, 469 Mutual Life Association v. Lang- ley, 436' Myers r. United Guarantee Company, 431 N. National Provincial Bank of England c. Games, 521 National Provincial Bank r'. Jackson, 190 Negus ','. Porster, 895 Nelson v. Stocker, 112 NeviU's Case, 164 Neville v. Snelling, 123, 169 Nqwbery, In re, 796 Newman, In re, 156 — V. Newman, 436 — V. Selfe, 542 Newmarch, In re, 486a Newton, Be, 796 — V. Newton, 599 XXU TABLE OP CASES. Newton v. Sherry, 384 Nioholl i>. Jones, 902 Noble ('. Edwards, 414 Nordenfelt, Maxim, &c. r. 141a Norris v. Trazer, 234 Northern Assam Tea Company, In re, Ex parte, Uni- versalLifeAssiu'ance Company, 439 — Insurance Company r. Whipp, 535 North London Eailway Com- pany V. Great Northern Eail- way Company, 440 Notti'dge V. Prince, 130 Noys V. Mordaunt, 681 Nunn V. Fabian, 447, 448 O. Oakes v. Turquand, 113 O'Brien v. Tyssen, 234 Odell, Ex parte, 506 Odessa Tramways v. Mendel, 424 Ogden r. Fossick, 424 Ogilvie v. Littleboy, 200 O'HaUoran v. King, 851 Oldham v. Stringer, 601a Oliver v. Hinton, 534 OUey V. Fisher, 449 Onions v. Cohen, 725 Onslow, Re, 904b Opera, Limited, Re, 83 Oriental Commercial Bank v. Saving, Inre Bird, 357 — Financial Corporation V. Overend and Com- pany, 164 Ormes v. Beadel, 441 O'Eorkew. Bolingbroke, 123, 170 On-ell V. Orrell, 685 Osborne and Eowlett, 343 Ovey, In re, 276 Owen, Re, 601b P. Page V. Cox, 232 Paget V. Ede, 54 — V. Marshall, 89, 102 — V. Paget, 320, 575 Palliser v. Q-u,rney, 857 Palmer v. Hendne, 649 Palmer v. Locke, 424 — V. Newell, 714 Pankhurst v. HoweU, 710 Parfitt V. Lawless, 148 Parker, Re, 635 — V. Clarke, 581 Parkin, Re, 868a Parkinson 11. Hanbury, 515, 543, 545 Parnall v. Pamall, 233 Parsons, Re, 834 Partington v. Allen, 352, 352a Pass V. Dimdas, 369 Paterson v. Murphy, 230 — V. Scott, 494 Pattle V. Hornibrook, 449 Pawson V. Brown, 732 Payne v. Mortimer, 423, 492 Peachy v. Somerset (Duke of), 453, 670 Peake, Re, 341a Pease v. Jackson, 582 Peckham v. Taylor, 228 Peek, Derry v. 112a Pegler v. White, 424 Pelton V. Harrison, 857b Pemberton v. Marriott, 889 Pembrooke v. Friend, 482 Penfold )>. Mould, 885 Penn v. Baltimore (Lord), 54 Pennington, Re, 183 — V. Brinsop, 770 Percival v. Dunn, 435 Perfect v. Lane, 169 Perry v. Holl, 190 — V. Knott, 371 Persse v. Persse, 125 Peterson v. Peterson, 473 Pett, Eobinson v. 163, 333, 336, 345 Philanthropic Society v. Kemp, 496 Phillips, In re, 817 — V. Beal (No. 2), 387 — V. Gutteridge, 589 — V. Hudson, 749 — V. Mullings, 733 — V. Phillips, 454 PhiUipson v. Kerry, 200 Philpott V. St. George's Hos- pital, 277 Pioard v. Hine, 856 Pickersgill v. Eodger, 687 Piercy v. Fynney, 662 TABLE OF CASES. XXlll Piggott V. Stratton, 204 Pike V. Fitegibbon, 856 Pilcher v. Eawlins, 190 Pilling's Trusts, He, 513, 527 Pinney v. Hunt, 755 Piper V. Piper, 482 Pledge V. White, 554 Plowden v. Gaylord, 830 Pollard, Be, 853 Pollock, iJe, 710 Poole, Ex parte, 316 Pooley V. Driver, 637 — V. Quilter, 162 Porter v. Baddeley, 359 Pott V. Todhunter, 183 Potter, In re, 817 Poulter V. Shackle, 876 Powell V. Hulkes, 358a — V. Merrett, 294 — V. Eiley, 477 — V. Smith, 82, 426 Powlett V. Hill, 548 Powys V. Blagrave, 763 Prees v. Coke, 158 Price Be, 857 — ' V. Macauley, 416 Pride v. Bubb, 846 Prole V. Soady, 326 Protector Endowment, &c., Com- pany i'. Grice, 674 Proiit V. Cock, 555 Pryce v. Bury, 601 Prytherch, Be, 576 Pulsfbrd V. Kichards, 112, 116 Pusey V. Pusey, Somerset (Duke of) V. Cookson, 791 Pye, Ex parte, 698 Pym V. Lookyer, 708 Pyrke v. Waddingham, 424 E. Eadford v. Willis, 424 Eamshire v. Bolton, 112a Eanken v. Alfaro, 435, 614b Eatcliff, Be, 397 Eavenscroft c Jones, 709 Eawlins v. Stedman, 294 — V. Wiokham, 640 Eedgrave v. Hurd, 112a Eees V. Berrington, 164 — V. Smith, 112a, 146 Eeg. V. Lord Mayor of London, 845 Eehden v. Wesley, 355 Eeid V. Hoare, 216 — 1'. Eeid, 284, 834, 883 Eeynell c. Sprye, 145, 430 Eeynolds c Grodlee, 298 Ehoades, Be, 402a Ehodes, Be, 128 Eice v. Noakes, 506 — !'. Eice, 330, 529 Eichards, Be, 380, 535 — i'. Delbridge, 230, 421 Eichardson v. Smith, 424 Eickerson, Be, 298a Eidler v. Eidler, 183 Eidgway v. Newstead, 32 Eiley v. Hall, 554 Eipley v. Waterworth, 299 Eoberts, Be, 885 — V. Cooper, 883 — V. Croft, 592 Eobertson v. Norris, 541 Eobey v. Oilier, 614 Eobinson v. Geldard, 496 — V. Harkin, 356, 366, 372 — ('. London Hospital (G-overnors of), 295 — V. Lynes, 857b — V. Pett, 163, 333, 336, 345 — V. Wheelwright, 853 Eochefoucauld u. Boustead, 32, 179 Eoebuck v. Chadebet, 715 Eogers v. Challis, 451 — 0. Ingham, 83 — V. Haddocks, 141a EoUand v. Hart, 190 Eolls V. Pearoe, 220 Eolt V. Hopkinson, 530 — r. Kensington (Lord), 90 — )'. White, 112 Eooper v. Harrison, 535 Eoper, Be, 904b Eose V. Watson, 408 Eosher, In re, 485 — V. Miller, 420 — ■ V. Williams, 194 Eouse )'. Bradford Banking Co., 164 EousOlon V. EousUlon, 141a Eowley v. Ginnever, 323 Eudge V. Eichens, 549, 560 Eumney, Be, 343 XXIV TABLE OF CASES. Eusseli'. Eussel, 592 Eussell, Ex parte, Butterwortli, In re, 184 — V. Eussell, 617a Eussell'sPolicy Trusts, In re, 436 Eyan v. Mutual Tontine, 424 S. Sackville-West r. Hoimesdale (Viscount), 237 Saffron Walden Building Society V. Eayner, 436 St. Helen's Smelting Company V. Tipping, 770 Salt, Re, 475 — V. Cooper, 786 Saltmarsh v. Barrett, 294 Salusbury v. Denton, 284 Samuel v. Ward, 698 Sanger v. Sanger, 859 Santley v. Wilde, 516, 558 Savery v. King, 149, 154 Sawyer v. Sawyer, 371 Sayers v. CoUyer, 424 Scanlan, In re, 796 Scarlett v. Hanson, 744 Scholefield v. Lockwood (No. 1), 575 — (No. 3), 558 — V. Templer, 115 Scioley v. Peck, 617 Schroder v. Sckroder, 684 Scott V. Hanson, 416 — V. Morley, 557b, 857 — V. Eayment, 638 — V. Spashett, 876 — V. Tyler, 139 Seaton v. Twyford, 571 SeUs V. Sells, 90 Seroka v. Kattenberg, 857 Seton V. Slade, 412 Seyton, Re, 844 Sbackleton c. Sutcliffe, 416 Sbanks, In re. Ex parte Swin- banks, 572a Sharp V. St. Sauveur, 271 Sharps v. Foy, 190, 903 Sharshaw v. Gribbs, 628 Shaw V. Bunny, 545 — V. Poster, 407 Sheddon v. Goodrich, 681 Shee V. French, 469 Sheffield Banking Co. v. Clayton, 656 Shelter v. City of London, 668 Shelley's Case, 237 Shepard n. Jones, 520 ShiUibeer v. Jarvis, 448 Shipwayw. Ball, 885 Shrewsbury and Birmingham Eailway Company v. North Western Eailway Company, 424 • Shropshire Union Eailways, &c. Company v. The Q,ueen, 380 Silk V. Prime, 302, 304 Simmins !'. Shirley, 514a Simmonds, Ex parte, 83 Simpson v. Dennison, 777 Sinnett v. Herbert, 276 Skinner, AUcard v. 32 SKm V. Croucher, 112a, 177 Small V. Hedgeley, 830a Smart v. Smart, 799 Smith, Re, 486a — V. Clay, 32 — V. Everett, 386 — V. Hill, 304 — V. Hurst, 248 — V. Lucas, 853 — V. O'Grady, 463 Smithson, Ackroyd v. 295 Snell, In re, 616 Societe Generale de Paris v. Tramways Union Co., 189, 436 Somerset v. Cox, 436 — (Duke of), In re, %o1 — — u. Cookson, 791 South V. Bloxam, 495 Speight V. Gaunt, 352a, 357 Spencer, Re, 852 — V. Clarke, 436 — V. Pearson, 529 Spioer v. Spicer, 871 Spike V. Harding, 721 Spirett V. Willows, 883 Spread v. Morgan, 692, 693 Spurling v. Eochfort, 475 Stainton v. Garron Company, 664 Standing v Bowring, 314 Stanton v. Lambert, 421 Stapiltou V. Stapilton, 88, 125 Stead V. Mellor, 233 Steed V. Preece, 295 Steel V. Dixon, 635, 654 TABLE OF CASES. XXV Steele v. Murphy, 250 Stephens, v. Green, 436 Sterne v. Beck, 674 Stevens, Be, 808 — V. Trevor-Grarrick, 830a Steward v. Blakeway, 647 Stewart v. Kennedy, 424 — v. Sanderson, 354 Stocker v. Wedderburn, 424 Stocks V. Dobson, 437 Stogden v. Lee, 851, 852 Stokes, Be, 475 Stonor's Trusts, In re, 830a Stourton V. Stourton, 796a Strange v. Brennan, 155 Stratheden, Be, 278 Strathmore (Countess of) v. Bowes, 182 — (Earl of) V. Vane, 365a Streatfield v Streatfield, 681 Street v. Union Bank, 762 StroughiU v. Anstey, 263, 379 Stuart, Be, 157 Stump V. Gaby, 155 Suggitt's Trusts, In re, 883 Suxcombe v. Pinniger, 448 Surman v. Wharton, 841 Surtees v. Parkin, 494 Sutton t;. Wilders, 357 Swaine i). Denby, 716 Swainson v. Swainson, 480 Sweet V. Sweet, 894 Swinbanks, JEx parte, In re Shanks, 572a Swinfen v. Swinfen (No. 5), 355 Sykes v. Sheard, 424 Synge v. Synge, 448 Talbot V. Prere, 604 — V. Marshfield, 401 — ■ V. Shrewsbury, 712 Tampliu v. Miller, 853 Tanner, Be, 805 Tanqueray-Wniaume, Be, 379a Tarn V. Turner, 555, 655a Tarsey's Trust, In re, 830 Tasker v. Tasker, 475, 500, 829a TasseU v. Smith, 530 Taunton v. Morris, 883, 891 Taylor, Be, 797 — V. Eckersley, 787 — V. Grange, 716 — V. Mostyn, 551 — V. Meads, 846 — V. Neale, 643 — V. Portington, 420 — V. Pugh, 182 — V. Eussell, 586 — V. Taylor, 295 Teevan v. Smith, 556a Telegraph Despatch, &c. Oom- panv V. McLean, 424 Tenant v. Huhne, 830 Tench v. Cheese, 477 Tennant v. Trenchard, 601b Tennent v. Welch, 885 Terry and White's Contract, In re, 107, 415 Thomas, Be, 359 — V. Turner, 772 Thompson, Be, 857 — V. Finch, 366 — V. Griffin, 806 — V. Hudson, 518, n., 674, 678 — V. Whitmore,.90, 93 Thomson v. Eastwood, 267 Thornborough v. Baker, 339 Thome v. Heard, 547 Thornley v. Thomley, 841a Thorpe, Be, 365 Thynne (Lady E.) v. Glengall (Earl of), 704 Tidd V. Lister, 495, 891 TUdesley v. Clarkson, 424 Tilley v. Thomas, 413 Tinsley v. Lacy, 775 Tipping V. St. Helen's Smelting Company, 770 Toilet V. Toilet, 31, 79 Tomkins v. Colthurst, 475 Tomkinson v. Balkis, &o., 112a Tomson v. Judge, 155 Topham v. Portland (Duke of), 201 Townley v. Sherborne, 356 Townshend v. Mostyn, 479, 480 Trail v. Baring, 112a Tr^go V. Hunt, 141 Trench v. Hamilton, 233 Trestrail v. Mason, 486b Trott V. Buchanan, 477 XXVI TABLE OP CASES. Troughton, Ee, 183 Trufcli V. Lamprell, 366 Tucker v. Bennett, 89 — • V. New Brunswick, 762 — V. Priester, 772 Tuff, Re, 823a Tullett V. Armstrong, 852 Tumbull, Re, 823, 844 Turner, Ee, 372 — V. Collins, 149, 150 — ■ V. Hancock, 521 — V. Harvey, 118 — ■;;. Wright, 319, 767 Turton v. Benson, 439 Tussaud's Estate, In re, 703, 706 Tyars v. Alsop, 159 Tyler i;. Tates, 168 Tyrrell's Case, 231 Tyrrell v. Bank of London, 160 Tyson v. Jackson, 431 U. Underwood v. Wing, 294 TJngley v. Ungley, 448 TJnion Bank of London v. In- gram, 540a — V. Munster, 424 Universal Life Assurance Com- pany, Exparte, In reNorthem Assam Tea Company, 439 Upperton v. Niokolson, 424 Vanderberg v. Palmer, 230 Vane v. Barnard, 767 Vane (Earl) v. Eigden, 382 Vansittart, Ee, 500, 829a — V. Vansittart, 419 Vardon's Trusts, Be, 681 Vaughan ". Vanderstegen, 856 Venn v. Eurze, Ee, 379a Verity v. Wylde, 617 Viditz V. O'Hagan, 817 Vint V. Padget, 554 W. W V. B , 725, 727 Wainford v. Heyl, 856 Waite V. Morland, 832 Wake V. Conyers, 720 Walker, Re, 353, 656 — ■«. Bradford Old Bank, 434 — V. Drury, 884 — V. Hirsch, 637 — V. Jeffreys, 413 — V. Jones, 580 — V. Mottram, 642 — V. Symonds, 372 WaU V. Colsliead, 300 Wallace v. Auldjo, 889 Waller v. Barrett, 383 Wallis V. Smith, 675 Walters v. Morgan, 118, 424 Ward V. Duncombe, 436 — V. Eyre, 157 — V. Turner, 219 — V. Tates, 883 Warne v. Seebohm, 772 Warner v. Jacob, 541 Warrick v. Queen's College, Oxford, 749 Warren, Re, 853 Warriner v. Rogers, 230 Warwioker v. Bretnall, 800 Wassill V. Leggatt, 855 Waters v. Thorn, 154, 155 Watson V. Marshall, 884 — V. Wellington (Duke of), 435 WeaU, Re, Sol Weaver, Re, 128 Webb V. England, 405, 819 — V. Smith, 493, 652 Webster v. Cecil, 424 — u. Webster, 436 West V. Williams, 530 Western Waggon Co. v. West, 434 Wheeler v. Howell, 304 — Re, 904b Whistler v. Webster, 681 White V. City of London Brewery Co., 558 — V. Grane, 806 — V. White, 681 Whitehouse, Exparte, 529, 661 White's Trusts, Re, 276, 284 Whiting V. Buike, 634 Whitney v. Smith, 353 Whittaker v. Kershaw, 393, 857 Wicks V. Scrivens, 555 Wiggins V. Horlock, 712 Wilcocks V. Wilcooks, 316 Wilder v. Pigott, 696 TABLE OF CASES. XXVll Wilkins v. Sibley, 381 Wilkinson v. Clements, 424 — V. Powkes, 39 — V. Lindgren, 275 — V. Wilkinson, 140 Williams, Se, 233, 527 — V. Arkle, 294 — V. Bayley, 131 — V. Bull, 725 — i: Evans, 447, 448 — V. Headland, 383 — V. Williams, 125, 190, 233, 719, 754 Willis V. Kymer, 830 Wills V. StradUng, 448 Wilson, Oann v. 112 — V. Diinsany (Lady), 504 ■ — V. Holloway, 647 — V. Northampton, &o. Railway Company, 405 — V. Thombury, 691 — V. Wilson, 101, 535, 894, 896 Winslow, -Be, 473 WintoTir v. Clifton, 682 Wise, Be, 808 Withington v. Tate, 572 Wolmerhausen «. Q-iallick, 164 Wolverhampton & S. Bk. v. George, 538 Woolam V. Hearn, 449 Wooldridge v. Norris, 164 Wooley V. Colman, 540a Wormsley's Estate,' In re, 483 Worseley v. De Mattos, 247 Worthington v. Wiginton, 692 Wright V. Maidstone (Lord), 76 — V. Pitt, 438 V. Vanderplank, 149 — V. Wright, 852 X, Be, 794 York Union Banking Company V. Artley, 601 Toimg, Be, 649 — V. Young, 477, 530 EDITIONS OF TEXT-BOOKS KEFERRED TO. Brett's Leading Cases, 3rd ed. 1896. Cordery on Solicitors, 3rd ed. 1899. Dart's Vendors and Purotasers, 6tli ed. 1888. Pisher on Mortgages, 6tli ed. 1897. Fry on Specific Performance, 3rd ed. 1892. Kerr on Eeceivers, 3rd ed. 1888. Lewin on Trusts, 10th ed. 1898. Lindley on Partnership, 5th ed. 1891. Simpson on Infants, 2nd ed. 1890. Smith's Leading Cases, 10th ed. 1896. Smith's Manual of Common Law, 11th ed. 1898 Story's Equity Jurisprudence, 2nd ed. 1892. Tudor's Conveyancing Cases, 4th ed. 1898. Tudor's Mercantile Cases, 3rd ed. 1884. WHte and Tudor's Leading Oases, 7th ed. 1897. WiUiams on Bankruptcy, 7th ed. 1898. Williams on Executors, 9th ed. 1893. Wolstenholme's Conveyancing Acts, 8th ed. 1899. A MANUAL EQUITY JURISPRUDENCE. INTKODUCTION. Section I. Of the Nature of Equity Jurisprudence, and the Extent of Equity Jurisdiction. To explain the nature of Equity Jurisprudence with Intkod. brevity and precision is a task of great difficulty, on '"^^' " account of the mixed character of the science and Difficulty and import- the immense extent of learning which for this purpose ance of the it is necessary for the mind to survey at one and the same time. It is most important, however, that some attempt be made to accomplish this, before the reader's attention is directed to the particular doctrines of the vast system, the principal features of which it is the design of these pages to delineate. 1. The writer believes it is impossible to give a short Definition of definition of Equity Jurisprudence, without either !;^^d"jci""^' failing to convey any accurate and definite knowledge, or misleading the student. But Equity, in the technical sense of the term, as distinguished from S. B NATURE AND EXTENT OF EQUITY. Intkod. natural justice, or equity in the larger sense, may be — — described to be a portion of natural justice, or equity in the larger sense, not embodied in legislative enact- ments or in the rules of the Common Law, yet modified by a due regard thereto, and to the complex relations and convenience of an artificial state of society, and formerly administered by the Court of Chancery in cases where the particular rights in respect whereof relief was sought came within some general class of rights enforced at Law, or might be enforced without detriment or inconvenience to the community, but where, as to such particular rights, the Common Law Courts could not, or originally did not (at least not without circuity of action or multiplicity of suits) clearly afford any relief or adequate relief, or did not make such qualifications or conditions as might be necessary for the due preservation of the rights of all interested in the property in litigation. The above definition, exact though it may be, is, how- ever perhaps too long and involved for an elementary treatise like the present, and it may be well therefore to add the short definition of Lord Coke, who stated that three things were to be judged in Courts of Equity, namely, fraud, accident and trust — a definition which was adopted by Blackstone, and is still, broadly speaking, true at the present day. It is by no means true, however, that these are exclusively or the only matters cognizable in Equity. It should also be borne in mind that the jurisdiction of Courts of Equity differed from those of Common Law not only in the principles which guided them, but in the modes of trial, the modes of proof, and the modes of relief. It will be seen therefore that Equity in a technical sense is more a matter of jurisdiction than of jurisprudence. NATURE AND EXTENT OP EQUITY. and the difficulty of defining it is due to the fact Inteod. that its origin and development are historical rather " than scientific. Indeed the true nature and extent of Equity jurisdiction as at present administered can only be ascertaiaed by a specific enumeration of its actual limits in each • particular class of cases falling within its remedial justice, and this will accordingly be done in the subsequent pages. 2. I. In the larger sense, Equity is synonymous with Equity juris- TSriKlGIlCG IS natural justice. (See St. § 1, 2.) But Equity, in the Botsynony- technical sense of the term, has a much narrower and ™aturia^ an otherwise different signification. Many matters of jnstioe. natural justice are, by the Equity Jurisprudence of this and every other civilised nation, left to be disposed of in foro conscientice, from the difficulty of framing any general rules to meet them, and from the mischief and inconvenience which would arise from attempting judicially to enforce such duties as charity, gratitude, and kindness, or even positive engagements, where they are not founded on a valuable consideration, or, at least, on what is deemed a good consideration. (See St. § 1, 2, 8, note, and § 14 ; 1 Sp. 447, n. (d).) 3. Also a large portion of natural justice, or equity in the larger sense, is comprised in legislative enact- ments ; and that portion is therefore excluded from Equity iu the technical sense of the term. Besides, the Common Law Courts have, in the exercise of their jurisdiction, always had regard to natural justice, or equity in the larger sense, and have often proceeded, as far as the nature of the remedies they administered would permit, on the same doctrines as the Court of Chancery ; and in the construction of statutes both adopted the same principles of interpretation, as being bound to pay regard to the intention of the legislature. b2 4 NATUBE AND EXTENT OF EQUITY. Inteou. Thus, a portion of natural justice, or equity in the Skct I. —^-^ — larger sense, is engrafted into the rules of the Common Law; and this portion is, therefore, also excluded from Equity in the technical sense of the term. (See St. § 7,8, 9, 15,20, 34.) 4. So that, on the one hand, natural justice, or equity in the larger sense, was not excluded either from legis- lative enactments or the rules of Common Law ; nor, on the other hand, is it carried out to an unlimited extent even in the system of Equity. And in the cases to which it is applied in the system of Equity, it is not always applied in an unmodified form, but is qualified (as we shall see in the third section and in subsequent pages) by a due regard to legislative enactments and the rliles of the Common Law, and to the varied and complicated relations and the general convenience of the subsisting order of things. 5. A portion of The truth, then, appears to be this : first, that a is left to con- large portion of natural justice, or equity in the larger science. sense, is left to be administered in foro conscientice, because, in addition to the difficulty of propounding precise rules, applicable to all cases, a greater detri- ment and inconvenience to the community would probably ensue from attempting to enforce it in the public Courts, than from leaving it to the decision and the power of conscience, and to the various motives Another by which mankind are ordinarily influenced ; secondly, portion 111- •' J > J' eluded in that another portion of natural justice, or equity in the en?otnients. larger sense, is included in legislative enactments ; Another thirdly, that another portion of natural justice, or ministered equity in the larger sense, was always administered by of Law^^ ^^® Common Law Courts, and is denominated Law ; That which and, fourthly, only a portion, therefore, of natural Equityln the justice, or equity in the larger sense, and that in a NATURE AND EXTENT OF EQUITY. modified form, is called Equity in the technical sense Inteoh. Sect. I of the term, in contradistinction as well to natural justice, or equity in the larger sense, as to that portion sense is of natural justice, or equity in the larger sense, which *' pration of '^ is included in legislative enactments, and that portion "itnral . . justice, and of it admmistered by the Common Law Courts and in a modified included in the rules of the Common Law. 6. °""' 11. Equity jurisdiction has usually been treated of Equity under three heads, viz., 1, exclusive ; 2, concurrent ; {relted as" and 3, auxiliary. 1. There were particular rights exclusive, _•' _ '- ° concurrent, which came within some general class of rights and auxiliary. enforced at Law, or capable of being judicially enforced, J^^^^^. ^^^j" not only in particular instances, and for the benefit of a* Law, and particular individuals, but generally, and to the advan- exclusive tage of the community at large ; and yet there were •'"™'l''=*i°"- anciently no forms of action by which relief could be obtained in respect of such particular rights, and they were consequently left to conscience by the Common Law Courts ; but as^ they were capable of being enforced by proceedings in Equity, and were of a character demanding judicial sanction and interposi- tion, the Court of Chancery readily interfered and afforded relief. In these cases, therefore, the Court of Chancery was said to have an exclusive jurisdiction. This, for example, was the case with trusts, for the most part ; with the right to relief in many instances of penalties and forfeitures ; and, in most cases, with the right to protection against anticipated loss or injury. (See St. § 29, 962.) Under the present practice, since the Judicature Act, 1873, all matters expressly assigned to the Chancery Division of the High Court of Justice may be classed under this head. (36 & 37 Vict. c. 66, s. 84.) 7. 2. There were many other cases in which the kind Equity NATUEE AND EXTENT OF EQUITY. Introd. Sect. I. assumed jurisiliotion on account of the inade- quacy of til e legal relief ; ov to avoid circaity of action, ov multiplicity of suits ; or to take due care of the rightsnf all ; or on account of the neces- sity for a discovery ; of relief which was afforded by Common Law Courts was inadequate, but in which the Court of Chancery could rrive the precisely appropriate relief. For example, Equity would often enforce the specific perr formance of a contract ; whereas in former times the Common Law Courts could only give daraages for the breach thereof. (See St. § 30, 33.) 8. There were also cases in which adequate and complete relief could be had at Law, but in order to obtain it, circuity of action or multiplicity of suits was necessary ; whereas complete justice could be done by a suit in Equity. (See St. § 496, 621, 853, 854.) 9. Again : the Common Law Courts could not do more than pronounce a positive judgment in a settled form, either for the plaintiff or the defendant, irrespective of the peculiar circumstances of the case ; whereas the Chancery Courts could adapt their decrees to all the various circumstances which might arise, and could take due care of the rights of all who were in any way interested in the property in litigation. (See St. § 26—28.) 10. In these three classes of eases, in which a plain, adequate and complete remedy could not be had at Law, the Court of Chancery had a concurrent and practically an exclusive jurisdiction. Indeed, in some, if not in all of the last class of these cases, Equity used to assert an exclusive jurisdiction, by granting an injunction against proceedings in other Courts. 11. The necessity for a discovery furnished a ground of jurisdiction to the Court of Chancery for relief in a great variety of cases. For the Court, having acquired cognizance of the suit for the purpose of discovery, frequently entertained it for the purpose of relief. NATURE AND EXTENT OF EQUITY. (St. § 691, 692.) And although under the present Intkod. Skc'i' I practice, since the Judicature Acts, the Courts of '-^ the Queen's Bench Division have power to compel discovery, yet it has been held that the old right of discovery of the Court of Chancery still exists, though modified by the Judicature Acts and Eules of Court. (See Att.-Gen. v. Gaskill, 20 C. D. 509.) 12. And in cases where the Common Law Courts or on account originally did not afford adequate relief, the Court of denial of due Chancery exercised a concurrent jurisdiction, unless ™ ® * ^^' prevented by a legislative enactment, even thou^ the Common Law Courts subsequently gave such relief. For they could have no power to circumscribe the jurisdiction of Courts of Equity. (See St. § 64 i, 81 ; 2 Sp. 16.) 13. And so if it was doubtful whether the Common Law ov the doubt- Courts could give such relief, the Court of Chancery obtaining had jurisdiction. 14. such relief. 3. In some cases a matter was most properly Where Equity cognizable at Law, and the Common Law Courts could jurisdiction, always have afforded due relief, had they been able to procure that evidence which the Court of Chancery could obtain, but which the Common Law Courts formerly could not obtain. In these cases the Court of Chancery used to have an auxiliary jurisdiction to provide the Common Law Courts with that evidence. (See St. § 64 k, 673.) 15. 4. Where it was clear that the Common Law where it Courts could always afford adequate relief without the jifrisdiction. aid of the Court of Chancery, and without circuity of action or multiplicity of suits, and could take due care of the rights of all who were interested in the property in controversy. Equity had no jurisdiction. NATURE AND EXTENT OF EQUITY. iNTEOD. (See St. § 33, 684 a & c, 686 ; 1 Sp. 408, 420; ''''■ '■ 2 Sp. 16.) 16. And Courts of Law and Equity are in general alike ousted in the case of internal disputes between the members of a building or other friendly society and the society itself, or any of the officials of the society and the society itself, where the Act of Parliament under which it is constituted, or the Building or Friendly Societies Act, provides that such disputes shall be settled by arbitration. Nor, as already observed, have Courts of Equity any 'jurisdiction as to those classes of rights which could not be judicially enforced without occasioning a greater general mischief or inconvenience than that which results from leaving them to be disposed of in foro conscientice. 18. It will be seen from the next section that both the Equity and Common Law Jurisdictions have been the subject of very great alteration by the Judicature Acts. 19. EFFECT OF JUDICATURE ACTS. Section II. Of the General Efect of the Judicature Acts, as regards Equity Jurisdiction and Jurisprudence. •The Judicature Acts, 1873 and 1875, almost entirely iNTRon. relate to Pleading and Practice, and not to Juris- — '-^ — ^^- prudence, which is the subject of this Manual. They do not make any general fusion of Law and Equity Jurisprudence. The fusion is only a fusion in organi- sation ; and the Acts deal only with the remedies and not with the rights of parties. (12 A. C. 309.) But the first Act consolidates the different Superior Courts by which Law and Equity were separately administered into one High Court of Justice, which is now divided into three " Divisions." And section 24 of that Act enables every Judge of that Court to deal concurrently with matters of Law and Equity arising between the same parties, except so far as by section 34 certain business is assigned to particular Divisions of the Court. Sub-section (7) of section 24 enables the High Court of Justice and the Court of Appeal to " 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 be entitled to in respect of any and every legal or equitable claim properly 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 10 EFFECT OF JUDICATURE ACTS. iNTEOD. determined, and all multiplicity of legal proceedings concerning any of such matters avoided." And sec- tions 88, 89, 90, and 91 give similar powers to Inferior Courts, to the extent of their jurisdiction. Section 25 (of which sub-section (1) is repealed and replaced by a similar provision in section 10 of the Act of 1875) provides that there shall be no merger by operation of law only of any estate, the beneficial interest in which would not merge in Equity (4), makes pertain changes in other specific points of Jurisprudence, which are noticed in the proper places in this Manual, and also makes the important enactment, that "gene- rally in all matters not hereinbefore particularly mentioned, 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 " (11). 20. Section 34 assigns to the Chancery Division all causes and matters for any of the following pur- poses: — The administration of the estates of deceased persons. The dissolution of partnerships or the taking of partnership or other accounts. The redemption or foreclosure of mortgages. The raising of portions or other charges on land. The sale and distribution of the proceeds of property subject to any lien or charge. The execution of trusts, charitable or private. The rectification or setting aside or cancellation of deeds or other written instruments. The specific performance of contracts between ven- dors and purchasers of real estates, including contracts for leases. EFFECT OF JUDICATUEE ACTS. 11 The partition or sale of real estates. Introd, Sect. II. The wardship of infants and the care of infants' estates. Since the Act other matters have been assigned to the Chancery Division by various statutes : e.g., those arising under the Conveyancing Acts, the Settled Land Acts, and the Guardianship of Infants Act, 1886. 20 a. It will be noticed that section 34 does little more than assign to the Chancery Division matters already within its jurisdiction ; and indeed it may be said that the general " effect of the Judicature Acts has been either to leave the Chancery Division and other Divisions to themselves as heretofore, or to turn the Chancery Division into the ' predominant partner ' whenever its inventions .have been utilised ; or in a few minor cases it has borrowed from its other partners, or rice versa, with mutual acknowledgments and compliments." 20 b. 12 GENERAL MAXIMS. Intkod. Sect. III. I. No wrong without a remedy. Section III. Of the General Maxims of Equity Jurisprudence. In addition to those maxims which are acted upon as well in Common Law Courts as in Courts of Equity, and besides various other maxims which in terms apply to particular parts of the Equity system, there are certain general maxims peculiar to Equity which it is of the greatest use rightly to understand, and to bear in mind, whether in reading or in practice. 21. I. It is a maxim, that Equity will not suffer a wrong to be without a remedy, or as it is sometimes expressed : Equity will not suffer a right to be without a remedy. It will be evident from the first section that this maxim lies at the foundation of a large pro- portion of Equity Jurisprudence, as a system which aimed at supplying the defects which at one time existed in the Common Law, and in particular it lies at the very root of the modern doctrine of uses and trusts. But it will also appear from the observa- tions made in that section, that this maxim must be regarded as referring exclusively to rights which come within a class of rights recognised at Law, or capable of being judicially enforced without occasioning a greater detriment or inconvenience to the public than would result from leaving them to be disposed of in foro conscientice. For there are still many real wrongs for which there is no remedy, either at Law or in Equity, as in the cases of damnum absque injuria, GENERAL MAXIMS. 13 where, though there is actual loss or damaee, Intkod. ^wox TTT there is no wrong of which the Courts will take '- — cognizance. (See Day v. Brownrigg, 10 C. D. 294 ; Ajello V. Worsleg, (1898) 1 Ch. 274.) The maxim must also be understood to refer to cases where the party who is remediless at Law has not sacrificed or lost his remedy by his own act or laches (see St. § 684 a & c), and where there is no equal or superior adverse right. And there are some exceptive cases of claims of natural justice capable in themselves of being enforced with propriety, but to which neither the Common Law nor Equity give any remedy : as in the case of the exemption at Common Law of the lands of deceased debtors from the payment of debts — an exemption which has now been removed by statute. 22. II. But not only will Equity often administer a ii. Equity remedy where the Common Law would not give any ^g^g^ ^^"^g relief, but it will also afford relief, as we have already remedy, ' ... where It seen, where the Common Law Courts originally did could not be not give plain adequate and complete relief, at least without circuity of action or multiplicity of suits. (St. § 33.) 23. III. But, as we have also seen, where the Common III. But Law Courts always afforded plain adequate and com- not interfere plete relief without the aid of the Court of Chancery, courtVof Law and without circuity of action and multiplicity of could ad- ■^ . minister a suits, and could take due care of the rights of all due remedy. persons interested in the property in litigation, there Equity had no jurisdiction. 24. Thus, where there was always an adequate and Illustration drawn from complete remedy at Law for the recovery of rent, the case of either by an action or distress, no suit would be entertained in Equity, although the remedy in Equity might be more beneficial. 25. 14 GENERAL MAXIMS. Intkod. Sect. III. IV. Equity follows the Law. Limitation of the maxim. IV. Although Equity would go beyond the Law in supplying a remedy in the cases above mentioned, yet it is a well-known maxim that Equity follows the Law. (See St. § 64.) 26. The true meaning of this maxim would seem to be; First; that in regard to legal estates, rights, and interests. Equity adopts and follows the rules of Law in all cases to which those rules may, in terms, be applicable. Thus, for example, Equity is governed by the canons on descent, and has never interposed in favour of younger children to mitigate the hardship caused by the rigour of the rule of primogeniture. But Equity has, in proper cases, made the heir-at-law a trustee in favour of persons having a claim upon or otherwise entitled to the descended property ; since it would be inequitable to allow the heir-at-law, or any ' other person, to use a technical advantage as a means of defrauding others, which was never intended. (See infra, par. 31.) 27. Secondly, that in regard to equitable estates, rights, and interests. Equity adopts and follows the analogies furnished by the rules of Law. Thus, it applies to equitable estates and interests the same rules by which legal estates and interests are regulated at Common Law, as the canons of descent, and the rules of con- struction of words of limitation of legal estates ; and it generally requires proceedings to be brought within the period prescribed for legal proceedings of a similar kind. 28. The maxim is true in both the above senses ; but in neither is it universally true, or at least of universal application. Where a rule either of the Common or the Statute Law is direct and applicable, a Court of Equity is as much bound by it as a Court of Common GENERAL MAXIMS. 15 La^Y, and can as little justify a departure from it. Introd. Sfct III But, on the other hand, Equity only follows the Law — ^^ ^ so far as it can without sacrificing claims grounded on peculiar circumstances, which render it incumbent upon a Court of Equity to interpose in accordance with the maxim previously mentioned, that Equity will not suffer a wrong to be without a remedy. 29. In reference to the maxim that Equity follows the illustration Law, it may be observed that although the limitations ?ftl^e maxim ■ o in regard to by which equitable estates are created by way of trust trusts GX 6Cl.lt GCl executed {post, par. 236) are construed in the same manner as similar limitations of legal estates, so that, for example, what would create an estate tail in one case will create an estate of the same kind in the other case, yet such a constructive assimilation does not Maxim does always take place in regard to equitable estates created tnLtJ'''^^ *° by way of trust executory {post, par. 237). For, in executory in ' . all respects. the case of trusts executory, there is often no substan- tial analogy, forming a ground for such assimilation : because in many cases the words are not so much actual limitations, such as those by which legal estates are created, as instructions or intimations as to the mode in which the author of the trust wishes the property to be settled by some future settlement, or assurance, and therefore the words are to be construed according to the intent of the party, rather than according to what would be the strict operation of the words, supposing them to be actual limitations con- tained in a formal and final instrument. (As to these trusts, see post, par. 237 ; Lord Glenorchy v. Bosville, 2 Wh. & Tu. 763 et seq.) 30. Li reference to the qualification that Equity follows Illustrations the Law only as far as it can without sacrificing claims fioationldded grounded on such peculiar circumstances as above "^ ^^^ writer's " statement of 16 GENEBAL MAXIMS. Intiiod. Sect. III. the true meaning of the maxim. Law of primogeni- ture Powers. Statute of Limitations. mentioned, it maybe observed, that Equity follows the Law in regard to the rule of primogeniture, although that rule in any particular instance in which it is so followed may be productive of the greatest hardship towards the younger members of a family who, by the operation of the rule, may be left without provi- sion, whilst the eldest son may be placed in afHuence. But these are not peculiar circumstances creating an equitable right to relief in favour of the younger children against the eldest son, and demanding the interposition of Equity. The mere absence or want of a provision, which may have arisep from the culpable neglect of the parent, can create no equity, against the eldest son. He has the right to the descended or entailed estate, without any reference to the circum- stances of the other members of the family ; and the mere fact that they have not been provided for by their parent can impose on the eldest son no obligation, in Equity, to divest himself, and can give the younger children no equitable right to strip him, of that provision which the Law has appointed him. No relief could be given in such a case as this, without directly derogating from a rule of Law, which a Court of Equity has no power to do. But if an eldest son should, by parol, promise his father to pay his sisters' portions, if he would not direct timber to be felled to raise them, although not liable at Law, he would in Equity be deemed liable to pay them, in the same way as if they had been charged on the land. (St. § 64.) So Equity will often support a power defectively executed where at Law the act would be wholly nugatory. (St. § 64 a ; Toilet v. Toilet, 2 Wh. & Tu. 289 et seq.) And in cases under the old Statute of Limitations (21 Jac. I. c. 16), Equity often interfered, GENERAL MAXIMS. 17 notwithstanding the ti,me fixed by the Statute had Inteod. Sect. III. expired, where , it would have been inequitable to have '- '— allowed the Statute to be a bar; as when a person perpetrated a fraud, which was not discovered till the statutorybar applied at Law. (St. §64 a.) But althougb, in these cases, Equity did not follow the Law, yet it did not overturn or destroy the general application of the enactment. It only refused to apply it in particular instances, where there were peculiar circumstances creating an equitable right to relief, demanding the interposition of the Court in its support, and capable of being enforced without at all derogating from the general application of the enactment in question. So far from derogating from the Statute, Equity by analogy acted upon it and refused relief in like cases to which the Statute did not apply. (See St. § 64 a.) 31. V. It is a maxim that vigilantibus, non dormien- V. VigiUm- ., . , ■ :-! • 1.1-1./1/ tihus, non tibus, cequitas subvenit : the meanmg oi which is, that dormientibas. Equity discountenances laches, and, independently of any Statutes of Limitation, has always refused to interfere where there has been gross laches in prose- cuting rights, or long and unreasonable acquiescence in the assertion of adverse rights. (St. § 959 a, 1284 a ; Allcard v. Skinner, 36 C. D. 145 ; Rochefoucauld v. Boustead, (1897) 1 Ch. 196.) And the mere assertion of a claim, unaccompanied by any act to give effect to it (as by taking legal proceedings to enforce it) will not avail to keep it alive. {Clegg v. Edmondson,- 8 D. M. & G. 787.) In the case of laches, it would in many cases be impossible to interfere, without doing injustice to third persons who had acquired interests in the property during the intervening period. Thus, the right of a creditor to make legatees refund may s. c siibvenit 18 GENEEAL MAXIMS. Introd. be lost by laches. {Ridgway v. Netvstead, 2 Gif. 492 ; Sect III '■ '-■ Lehmann v. Mc Arthur, L. E. 3 Ch. 496.) Since, inasmuch as his right to follow assets which have been distributed without providing for his debt is a right only in Equity, equitable considerations, if sufficiently weighty, will make it the duty of the Court not to grant that equitable relief to which, under ordinary circumstances, a creditor is entitled, {Blake v. Gale, 32 C. D. 571.) Equity refuses its aid to stale demands, where the party has slept upon his rights, for nothing can call forth the interference of Equity but conscience, good faith, and reasonable diligence. {Smith v. Clay, 3 Bro. C. C. 460, n.) " It has been beautifully remarked, with respect to the emblem of Time, who is depicted as carrying a scythe and an hour-glass, that while with the one he cuts down the evidence which might protect innocence, with the other he metes out the period when innocence can no longer be assailed. ' {Bright v. Legerton, 2 D. F. & J. 617.) 32. "If a person having a right, and seeing another person about to commit, or in the course of commit- ting an act infringing upon that right, stands by in such a manner as really to induce the person commit- ting the act, and who might otherwise have abstained from it, to believe that he assents to its being com- mitted, he cannot afterwards be heard to complain of the act. . . . But when once the act is completed without any knowledge or assent upon the part of the person whose right is infringed, the matter is to be determined on very different legal considerations. A right of action has then vested in him which, at all events as a general rule, cannot be divested without accord and satisfaction, or release under seal. Mere GENEEAL MAXIMS. ' 19 submission to the injury for any time short of the Intuob. period limited by statute for the enforcement of the — ^^ ^ right of action cannot take away such right, although under the name of laches it may afford a ground for refusing relief under some particular circumstances : and it is clear that even an express promise by the person injured that he would not take any legal pro- ceedings to redress the injury done to him could not l)y itself constitute a bar to such proceedings, for the promise would be without consideration, and there- fore not binding." (De Bussche v. Alt, 8 C. D. 286, 314.) 33. VI. Where there is equal Equity, the Law must vi. where ., . 1 -o ,1 Ti.!,-, ,. there is equal prevail ; m other words, if the defendant has a claim Equity, the to the protection of Equity, equal to the claim which prevail!^*** the plaintiff has to its assistance, there Equity will not interpose, but will leave the matter as it stands. It is upon this account that Equity refuses to inter- fere against a bond fide purchaser for a valuable consideration without notice of the adverse title, if he is in possession or has purchased from an apparent owner in possession, and if he chooses to avail him- self of the defence at the proper time and in the proper mode. (St. § 64 c, 436 ; Basset v. Nosicorthy, 2 Wh. & Tu. 150 et seq.) 34. VII. Another maxim is, that Equality is Equity, VII. Equality or, that Equity delighteth in Equality, (St. § G4 f.) jiiJ^'i^^Jo,, Acting on this principle. Equity leans strongly against drawn from joint- tenancy, as it is attended with the inseparable joint purchase incident of the right of survivorship. For, although "'' '""'tg'^g''- it is true that each joint tenant^ may have an equal chance of being the survivor, yet this is but an equality in point of chance ; as soon as one dies, there is an end to the equality between them : on c2 20 GENERAL MAXIMS. Introd. Sect. III. VIII. He who comes into Equity- must come with, clean hands. Illustration drawn from a fraudulent transaction. Qualification of the maxim. that event the whole accrues to the survivor. And the equal certainty of having an absolute equal share, or a share proportionate to the amount of the purthase-money advanced, which is an equal share so far as the justice of the case will permit, is considered in Equity far better than an equal chance of having the whole or none of the property pur- chased. The former is considered to be the true and just equality. And therefore, if two persons jointly purchase, or take a mortgage of an estate, and advance the purchase or mortgage money in unequal proportions, Equity, on the death of either of them, acting on the maxim that Equality is Equity, will hold the survivor a trustee for the representatives of the deceased, as to a share pro- portionate to the amount of the money so advanced by him. (See St. § 1206 ; Lake v. Gibson, 2 Wh. & Tu. 952 et seq.) And this furnishes another illustration of the limitations of the maxim, that Equity follows thd Law, as above explained. 35. VIII. Another maxim is, that he who comes into Equity must come with clean hands. So that if a person seeks to cancel, set aside, or obtain the delivery up of an instrument on account of fraud, and he himself has been guilty of wilful partici- pation in the fraud, Equity will not interpose in his behalf, unless the fraud is against public policy, and public policy would be defeated by allowing it to stand. (See St. § 695 ; post, par. 727.) 36. The rule must be understood to refer to wilful misconduct in regard : to the matter in litigation, as in the foregoing example, and not to any misconduct, however gross, which is unconnected with the matter GENERAL MAXIMS. 21 in litigation, and with which the opposite party in Introb. t-x, u OPT i' ^ Sect. III. the cause has tio concern. 37, IX. It is also a maxim, that he who seeks equity IX. He who must do equity. (St. § 64 c, 707; i^ost, par. 729.) 38. must do"'*'' The meaning of this is, that he who seeks equity '^'i^^^y- must do equity ia the transaction in respect of which relief is sought ; for the rule does not reach so far as to affect any other transaction than that in respect of which the reHef is sought. {Wilkinson v. Foivkes, 9 Hare, 592; Gibson v. Goldsmid, 5 D. M. & G. 757.) 39. To give an illustration of this maxim, the Court illustration will not set aside a usurious transaction at the suit usurious of the borrower, unless upon the terms that he will t™"sa'=«°°- pay the lender what is bond fide due to him («). It must not be inferred from this, however, that the Court will oblige the borrower to pay what is so due, on an action by the lender to enforce his claim (see St. § 64 e) ; for that would be contrary to the maxim, that he who comes into Equity must come with clean hands. 40. X. It is a maxim, that Equity looks upon that X. Equity as done which ought to be done. (St. § 64 g.) as done which This maxim is acted on in some cases (as in the ^"^g* *° ^^ case of agreements) in favour of persons who have a right to ask that acts might be done, so as virtually to place them, as near as may be, in the same advantageous position as if those acts had been done in the way in which, and at the time when, they ought to have been performed. (See St. § 64 g.) But Equity will not thus act in favour of all persons ; [a) The Usury Laws were aholished by the stat. 17 & 18 Vict. o. 90, except those relating to pawnbrokers. But the repeal of the Usury Laws has not affected the right of the Court to give relief against unconscionable bargains. {Post, par. 168.) 22 GENERAL MAXIMS. Introd. Sect. III. Conversion. e.g., not in favour of volunteers. {Chetwynd v. Morgan, 31 C. D. 596.) 41. As a consequence of this maxim, money directed to be employed in the purchase of land, and land directed to be turned into money, are in general regarded as that species of property into which they are directed to be converted — that is, either immediately, or at some future time, according to circumstances. {Post, par. 409.) And where the intention in marriage articles is plain, that a conversion should be made, but consents of the parties interested to the actual purchase cannot be obtained as required by the instrument, by reason of their deaths or for some other cause, if any convenient purchase could have been obtained, the Court will take upon itself to judge whether such consents ought to have been given, and the conversion being the paramount object, it will be considered as made. If this were otherwise, the parties to consent would have the option of determining whether the property should be real or personal, which, unless it be clearly given to them, will not be permitted. And when a conversion is rightly made, all the consequences of conversion must follow, unless there be an equity in favour of reconversion. (Brett's L. C, 127 et seq.) 42. Where money to be converted gets into the hands of the person who is absolutely entitled to it either way, the operation of the rule of conversion will cease. (2 Sp. 270.) 46. Where the property is outstanding in a trustee, but there is some person who is absolutely entitled to the property, whether taken as realty or personalty, such person, by any act from which his intention may be GENERAL MAXIMS. 28 collected, may declare his election in what quality it Inteod. ^T'PT TTT shall be taken. (2 Sp. 271 ; Fletcher v. Ashburner, 1 ' '— Wh. & Tu. 327 et seq.) Until an election is made, the property passes as if actually converted, and the onus lies on those who would show an election to take it in another character than that it would have if converted. (2 Sp. 272.) 47. XI. As between persons having only equitable XI. Quiprior interests, if their equities are in all other respects pltlorlS^"' equal, priority of time gives the better equity : qui •?'"'^- prior est tempore, potior est jure. But in a contest between persons having only equitable interests, priority of time is the last preference resorted to ; i.e., the Court will not prefer the one to the other on the mere ground of priority of time, until it finds, upon an examination of their relative merits, that there is no other sufficient ground of preference between them, or, in other words, that their equities are in all other respects equal : and if the one has, on other grounds, a better equity than the other, priority of time is immaterial. {Post, par. 529.) 50, XII. Where a man is bound to do an act, and he xii. Equity does one which is capable of being considered to Intention have been done in fulfilment of his obligation, it toMfiia" shall be so construed ; because it is right to put the most favourable construction on the acts of others. (Lechmere v. Lechmere, 2 Wh. & Tu. 399 ; Blandy v. Widmore, 2 Wh. & Tu. 407 et seq.) 51. In the case of a covenant that, on the death of the Where ai . , . distributive covenantor, a wife or relative shall receive a gross share is a sum, his or her distributive share, in the case of 'n obhgati'on^ an intestacy, if equal to or greater than the sum by covenant, covenanted to be paid, is to be considered as a per- formance ; if less, as a part performance. But where 24 GBNEEAL MAXIMS. Introd. Sect. III. XIII. Loss must be borne by person occasioning it. XIV. Rules as to foreign or colonial property or contracts. the covenant is, that an annuity shall be paid or secured on the death of the covenantor, the distribu- tive share is not a performance or part performancSi {lb. ; and see post, par. 316.) 52. ■ XIII. It is a rule both at Law and in Equity, that whenever one of two innocent persons must suffer by the act of a third person, that one must bear the loss who has, however innocently, put it in the power of such third person to occasion it. {Hunter v. Walters, L. E. 7 Ch. 75 ; French v. Hope, 56 L. J. Ch. 363.) But the neglect must be in the transaction itself and the proximate cause of the loss, and it must be the neglect of some duty to the person affected by it and to the general public, and not merely the neglect of what would be prudent in respect to the person himself nor even of some duty to a stranger. The mere omission by a person to do something wPiich it is not his duty to do, but which, if done, would have prevented the loss, is not sufficient to render him liable for such loss. (See judgment of Lindley, J., in Keith v. Burrows, 1 C. P. D. 734.) 53. XIV. It may be observed in this place, that it is a rule, that although the property in controversy be situate in a country out of the jurisdiction of the Court, whether within the English dominions or not, yet the Court, in all cases where the proper parties are within the territorial process of the Court, will afford relief, so far as it can be afforded, by proceeding against the persons, and not directly against the property. (See St. § 1290—1300, 1352 a ; Penn v. Lord Baltimore, 1 Wh. & Tu. 755 et seq ; Ewing V. Orr Ewing, Brett's L. C. 1.) Thus, a suit cannot be brought for a partition of land situate in a country out of the jurisdiction ; for the Court cannot award GENERAL MAXIMS. 25 a commission there. (St. § 1292; 2 Sp. 8, n. {d).) Intkod. But a suit may be maintained for an account of the '- — '— rents and profits of land out of the Jurisdiction, or for a specific performance of an agreement respecting such land. (St. § 1291, 1300, 743, 744.) And a fore- closure decree being a decree in personam, depriving the mortgagor of his personal right to redeem, the ■Court has jurisdiction to make such a decree between an English mortgagor and mortgagee of land in one of the colonies. (Paget v. Ede,.L. E. 18 Eq. 118.) And the Court has gone so far as , indirectly to over- haul the judgments of foreign Courts, and even the sales made under those judgments, where fraud has intervened in those judghiehts, or a grossly inequit- able advantage has been taken. (St. § 1294; 2 Sp. 9.) 54. If a matter is within the jurisdiction of a tribunal •of competent jurisdiction in another country, the Court, excepi under special circumstances, will leave the matter to be disposed of by that tribunal. (2 Sp. 10.) 55. The right to personal property follows the domicile, but the right to land or immovable property is to be ■determined by the law of the country where it is situate. Yet, if that question is mixed up with others — for instance, with matters of account, which can be more conveniently disposed of here — the Court will ■entertain jurisdiction of the whole matter ; giving directions, in case of need, for instituting any pro- ceedings in the Colonial Courts. (2 Sp. 12 ; see Baillie V. Baillie, L. E. 5 Eq. 175.) 56. The remedy upon contracts must be that which is given by the law of the country where the parties reside. (2 Sp. 14.) But contracts are generally 26 GENEEAL MAXIMS. Inteod. construed according to the law of the place in which Sect. Ill, ° '^ they were made. And, as a general rule, a contract will not be enforced, unless it is valid both by the law of the country it which it was made, and by the law of the country in which it is sought to be enforced. (2 Sp. 13, 14 ; Hope v. Hope, 8 D. M. & G. 731.) 57. Where a written contract is made in a foreign country and in a foreign language, an English Court, in order to interpret it, obtains, first, a translation of the instrument ; secondly, an explanation of the terms of art (if it contains any) ; thirdly, evidence of any foreign law applicable to the case ; and, fourthly, evidence of any peculiar rules of construction, if any such rules exist, by the foreign law. And, with this assistance, the Court then interprets the contract itself on ordinary principles of construction. {Bi Sara v. PhUlipps, 10 H. L. C. 624, 633.) 58. DIVISION OF EQUITY. 27 Section IV. Of the Division of Equity (a). The subject of Equity Jurisprudence may be con- Inteod. veniently, and perhaps most properly, treated under ~ - the following heads, designated according to the more distinctive characteristics of the relief afforded, or the general objects sought to be effected. I. Of Eemedial Equity, specifically so termed. II. Of Executive Equity. III. Of Adjustive Equity. IV. Of Protective Equity, irrespective of disability. V. Of Protective Equity, in favour of persons under disability. 60. (a) Now that, by virtue of the Judicature Acts, Law and Equity are concurrently administered in the Queen's Bench and Chancery Divisions — certain particular matters being assigned to each Division — and every Court is, as regards matters assigned to it, a Court of Equity as well as of Law, the above division of Equity jurisdiction would seem to be ' more appropriate than the division into concurrent, exclusive, and auxiliary jurisdiction, the force of which is destroyed. TITLE I. Of Remedial Equity, Specifically so Termed. CHAPTEE I. OF ACCIDENT. Tit. I. An accident, in the usual sense of the term, is an '-'•"• ^- occurrence not referable to design. 61. Definition of Accident, as remediable in Equity, may be defined cLCClQGlllj* to be an unforeseen and injurious occurrence,^ not attributable to mistake, neglect, or misconduct. 62. Illnstratiou in Thus, in the case of an investment in public stock reduction of^ sufficient to provide for an annuity directed by will to stock. jjg secured by such stock, the subsequent reduction by Act of Parliament of the stock, so that the invest- ment becomes insufficient to answer the annuity, is an accident from liability for which Equity will relieve the executors, and may remedy by decreeing the deficiency to be made up against the residuary legatees.- (St. § 93.) 63. I. Accidents I. There are many cases of accident in which due Law! '^ ^ * veliei could always be obtained at Law ; and in such cases there was no remedy in Equity. (St. § 79.) 64. II. Accidents II. On the other hand, there are many cases ia able, ^™^ ^" which no remedy can be had either legal or equitable. (St. § 79.) 65. Thus, as in cases of 1. No relief win be granted where the accident culpability of n it the sufferer ; arose from the gross neglect or fault of the party seeking relief, or his agents. (St. § 105.) 66. ACCIDENT. 29 2. And where a person has expressly and absohitely Tit. I. contracted or covenanted to do a particular thing, it is no ground for the interference of Equity that he absolute has been prevented by accident from fulfilling his agreement, engagement, or from deriving the full benefit of the contract on his side. For he might have prevented any injury to himself from accident, by making proper exceptions ; but since he has made no such exceptions, Equity will not conjecturally limit a liability which in terms is general and unqualified. (See St. § 101 — 105.) So that if a lessee covenants to keep the demised to repair, premises in repair, he will be bound to do so, not- withstanding any unavoidable accident by which they are destroyed or injured. (St. § 101.) And where there or to pay rent, is a covenant to pay rent during the term, without any exceptions, it must be paid, notwithstanding the premises are accidentally burnt down during the term. (St. § 102.) So, if an estate is sold for a certain or an sum of money and an annuity for the life of the vendor, and the vendor dies before the receipt of any annuity, Equity will not grant relief. (St. § 104.) 67. 3. Nor will r'elief be granted in favour of a person or of a whose equitable right to assistance is not equal, or not equity, more than equal, to the equitable right of protection which is possessed by the party against whom the relief is sought. For this reason relief is not given against a bona fid'' purchaser for valuable consideration, without notice (see St. § 108) ; or against an heir in tail or remainder-man in tail, in favour of persons claiming under the tenant in tail. (St. § 107.) 68. 4. And so relief will not be granted in favour of a or of want of person who, although a great loser through an accident, ^"^^ ^ ' has no equitable title to relief, or as little as the per- son against whoto relief is sought. Thus, no reliief 30 ACCIDENT. Tit. I. Cap. I. as where a will is defectively executed. Ill . Accidents remediable in Equity. 1. Jurisdiction for discovery in cases of destroyed, lost, or suppressed deeds, and will be afforded to the legatees or devisees under a will defectively executed (see St. § 105 a, 106) : for, being mere volunteers, they have as little equity as the heir or next of kin, or even less, inasmuch as fortior et eequior est dispositio legis quam hominis (Co. Litt. 338 a) : and therefore the legal right which has vested in the latter will not be taken away ; as the maxim is, that " where the equity is equal, the law must prevail." 69, III. But where the Common Law Courts originally could not, or did not, give adequate relief, and take due care of the rights of all persons interested, and the party prejudicially affected was free from blame in respect of the accident, relief was granted by the Court of Chancery, if it could be granted without derogating from any positive agreement, or violating any equal or superior equity in another person. And although Courts of Law can now grant relief where formerly they could not, yet the original jurisdiction of Courts of Equity is not thereby taken away, but they still have concurrent jurisdiction. (See St. § 28, 64 i, 79, 81, 85, 89, 101, 105, 106, 109.) 70. 1. Li cases of destroyed, lost, or suppressed deeds, the jurisdiction of the Court of Chancery (now the Chancery Division) to compel a discovery would seem to have been universal, because this was a preliminary assistance peculiar to Equity. 71, The Common Law Courts compelled discovery only to a very limited extent by virtue of the Common Law, and somewhat larger powers were conferred on them by the Common Law Procedure Act, 1854, now repealed. Under the Judicature Acts, however, they have the same power of compelling discovery as the Chancery Courts ; and subject to the Orders and Eules of Court, a litigant, either in the Chancery Courts ACCIDENT. 31 or in the Common Law Courts, can obtain all the Tit. i. discovery he could formerly have had either at Law — ^^^ — or in Equity, but where he was not entitled to it either at Law or in Equity, he cannot obtain it now. (LyellY. Kennedy, 8 A. C. 223 ; Hunnings v. Williamson, 10 Q. B. D. 459.) 72. But in these cases, the jurisdiction of the Court of jurisdiction Chancery (now the Chancery Division) for relief, in suehllfes!' addition to a discovery, was of limited extent ; for, in some of these cases the Common Law Courts have all along been able to administer, and have been in the habit of doing complete justice. (St. § 83, 84.) Among other instances of equitable relief may be Instances in mentioned the case where the plaintiff avers that a has^juriadio-'' deed relating to land has been either destroyed or f'on for relief ° •> \n those cases. concealed by the defendant, but that he (the plaintiff) knows not whether it has been so destroyed, or whether it has been only concealed ; for there a decree may be obtained in Equity (which formerly could not be made in Law), that the plaintiff shall hold and enjoy the land until the defendant shall produce the deed, or admit its destruction. (St. § 84.) 73. So if a deed concerning land is lost, and the party in possession seeks a discovery, and to be established in his possession under it, Equity will afford relief; for in such a case there was no remedy at Law. (St. §84.) 74. 2. There is jurisdiction in Equity to decree pay- % Jurisdiction ment of a lost bond ; because until a recent period no lost bonds. relief was given at Law, on account of the want of a profert. And the subsequent practice of dispensing with profert at Law does not destroy the ancient jurisdiction in Equity. (St. § 81, 82.) And besides, at Law, the defendant had not the protection of the 32 ACCIDENT. Tit. I. Cap. 1. 3. Jurisdiction in oases of lost unsealed securities. 4. Payments by executors. 5. Relief in cases of the defective oath of the plaintiff to the fact of the loss. Again, it is often proper to grant relief upon the terms of the party giving a bond of indemnity ; and formerly a Common Law Court could not insist on that as a part of the judgment ; and, although it has sometimes required the previous offer of an indemnity, yet such an offer may be unsatisfactory in many cases ; for, in the meantime, the circumstances of the party to the bond of indemnity may undergo a great change - (St. § 82.) 75. 3. There would seem to have been a remedy at Law to enforce payment of money due on a lost negotiable note or other negotiable unsealed security, because no profert was necessary, and no oyer was allowed of such securities ; and also jurisdiction in Equity to relieve in such a case, at any rate when the remedy at Law was insufficient, or where there was an offer of indemnity in the bill, constituting a ground of jurisdiction. (St. § 85, 86. See now Bills of Exchange Act, 1882, s. 70.) There was in Equity, however, no jurisdiction to give relief on account of the destruction of a bill of exchange, because there was always a complete remedy at Law in such cases. (Wnght V. Lord Maidstone, 1 K. & J. 701.) 76. 4. Another instance in which the Court would give relief on the ground of accident was where an executor, having to pay various debts or legacies, pays some of them in full, and afterwards the estate turns out to be insufficient. Here the executor, if he has acted with due caution, will be relieved against liability. (Edivards v. Freeman, 2 P. Wms. 447 ; Hilliard v Fulford.AC.B.SSd.) 76 a. 5. In the absence of. any countervailing equity, relief will be granted in Equity in the case of a defective ACCIDENT. 83 execution of a mere power (a), where it is created Tit. i. by an ordinary assurance, and where the defect is not of the very essence of the power. But such rehef will non-exeoution only be given m favour of certain objects, viz.: a "fP"^^"^^- charity, or a purchaser (including a mortgagee and a lessee), or a creditor, or an intended husband, or a wife, or a legitimate child. And the mere manifesta- tion of an intention to execute the power, provided it clearly appears in writing, will be deemed a defective execution of the power. 77. But Equity will not interpose in the case of a non-execution of a mere power ; for that would be depriving the donee of the right of discretion in regard to the exercise of the power. Nor will Equity support a defective execution of a power, in favour of the donee of the power, or of a husband (except in the case of an intended husband), father, or mother, or of a grandchild or more remote relation, or of a mere volunteer, except where a strict compliance with the power has been impossible, from circumstances beyond the control of the donee ; as where the prescribed witnesses could not be found ; or where an interested person, having possession of the deed creating the power, has kept it from the party executing the power, so that he could not ascertain the formali- ties required. Nor can Equity dispense with the regulations prescribed where the power is created by Statute, at least where they constitute the apparent policy and object of the Statute, or with the consent of persons whose consent is required. Nor will an execution by an absolute deed, instead of by will, be supported, as that would be repugnant (a) See the stat. 22 & 23 Vict. c. 35, s. 12, as to the mode of execution of powers. S. D 34 ACCIDENT. Tit. I. to the power ; since it would not be revocable like a Cap. I. _ will. 78. But where the power is coupled with a trust, Equity will grant relief, even in the case of the non-execution of the power: because, in this case, the donee was under an equitable obligation to exercise it. And Equity will also grant relief where the execution of the power has been prevented by fraud. (See, as to these propositions respecting powers, St. § 94 — 98, 169—177; 2 Sugd. Pow., 7th ed. 88—175; Toilet v. Toilet, 2 Wh. & Tu. 289 ; Harding v. Glyn, 2 Wh, & Tu. 335 ; Chetwynd v. Morgan, 31 C. D. 596.) 79. ( 35 ) CHAPTEE II. or MISTAKE. A MISTAKE, as remediable in Equity, may be defined Tit. I. to be an act which would not have been done, or an '■ — '- — 1-1 , J , T 1 1 i J! Definition of omission which would not have occurred, but from mistake. ignorance, forgetfulness, inadvertence, mental incom- petence, surprise, misplaced confidence, or imposi- tion. 80. The following propositions appear to be deducible from the cases on the subject : — I. Where the mistake is unilateral, and the sufferer I. Mistake is the person by whom it was made, relief will not sufferer alone. be granted, unless there is some circumstance which gives rise to a presumption that there has been some undue influence, misrepresentation, imposition, mental imbecility, surprise, or confidence abused (see St. § 110, 137) ; and even where this is the case. Equity will not interfere as against a bond fide purchaser for valuable consideration, without notice. (St. § 139, and see Maxim VI., par. 34, cuite.) 81. In regard to mistakes in matters of law, it is a Mistake in a maxim that ignorantia legis non excusat. (St. § 111, 113, 116, 138, 140; Poivell v. Smith, L. E. 14 Eq. 85.) But where the mistake is one of title, arising from ignorance of a principle of law of such constant occurrence as to be understood by the community at large, this is considered sufficient to afford such a presumption as above mentioned, so as to d2 36 MISTAKE. Tit. I. entitle the party to relief. (See St. § 121—125, 128, ^^^- "• 137.) 82. The Court has power to relieve against mistakes in law as well as against mistakes in fact, if there is any equitable ground for such relief ; but it will not relieve unless there be a fiduciary relation between the parties, or some equity supervenes by reason of the conduct of one of them. When money has been paid over with a full knowledge of all the facts, and the pay- ment has been acquiesced in with such knowledge, it cannot afterwards be recovered back. (Rogers v. Ingham, 3 C. D. 351 ; Brett's Lead. Gas. 80 et seq.) Unless the payment be made to an officer of the ■ Court, in which case it will be ordered to be repaid. (Ex parte Simmonds, 16 Q. B. D. 808 ; In re Brown, 32 C. D. 597; In re Opera, Limited, (1891) 2 Ch. 154.) 83. or in a matter And in regard to mistakes in matters of fact, relief will be granted on the same presumption, where the mistake is unilateral, and the fact was material to the act or contract, and was not doubtful from its own nature, and was a fact which would not be ascertained by such diligence or care as is usual in transactions, of the like nature, and of which the other party was. under a legal obligation to inform the mistaken person. (See St. § 117, 118, 140, 141, 146—148, 150, ] 51.). 84. Ignorance of And ignorance of foreign law is deemed ignorance foreign law. . n , , . ° ot tact; because no person is presumed to know foreign law. (St. § 140.) 85. Vendor's But ignorance, on the part of the vendor of mistake as to . . i_ i ■ , , ' value. Circumstances tending to enhance the value of the property, of which the vendee was aware, will not form a ground for relief, where it is not a case of mutual confidence. (St. § 149.) 86. MISTAKE. 37 II. Where the mistake is mutual, the transaction Tit. I, will be binding; unless it was founded on a mutual surprise ; or the mistake consists in supposing that mistake, the subject-matter of the contract existed, when in reality it was not in existence ; or the mistake con- sists in one party supposing that he had purchased something which the other did not intend to sell (St. § 113, 134, 142, 143, 144) ; or the mistake is the result of a miscalculation by the defendant's agent in favour of the defendant {Carpmael v. Poiris, 10 Beav. 36); or by reason of the fact being otherwise than was supposed, there is no consideration to support the transaction {Cochrane v. Willis, L. R. 1 Ch. 58) ; or both parties were under the impression that one of them was the owner of property which, in reality, belonged to the other {Cooper v. Phibbs, L. E. 2 H. L. 149) ; or one of the parties made a material misrepresentation, though innocently, which influenced the other {Fane v. Fane, L. E. 20 Eq. 698. And see Brett's Lead. Cas. 84.) 87. III. In the case of a compromise of doubtful rights, HI. Com or of rights which are considered by the parties to be doubtful, to make it binding the parties must be at arm's length, on equal terms, with equal knowledge, ani with sufficient advice and protection, where, from their relative position or other circumstances, they need it. {Moxon v. Payne, L. E. 8 Ch. 881, 885.) If all the parties are in a state of mutual ignorance, or they are all acquainted with the doubts which exist in their favour, the compromise will be binding. But where one or more of them is or are not aware of the doubts existing in his or their favour, while the fact that such doubts exist is known to the other or others of them, the compromise will not be binding (see promises. 38 MISTAKE. Tit. I. Cap. II. IV. Correc- tion of a mistake in a, written instrument, or in regard thereto. St. § 130—132 ; Lucy's Case, 4 D. M. & G. 356 ; Stapiltmt V. Stapilton, 1 Wh. & Tu. 223) ; because, in that case, there is room for the presumption of surprise or confidence abused ; and the very nature of the transaction made it requisite that all the parties should be on an equality as regards knowledge or ignorance of the doubts existing in their favour. To render a family compromise binding, there must be not only good faith, but full disclosure by each party to the other, of all such material facts known to them, relative to their rights and title, as are calculated to influence the judgment in the adoption of the compromise ; and without full disclosure honest intention is not sufficient. (Greenwood v. Greemvoocl, 2 D. J. & S. 28 ; Re Birchall, 16 C. D. 41 ; De Cordova v. De Cordova, 4 A. C. 692.) 88. IV. Where by mistake an instrument inter vivos is not what the parties intended, or there is a mistake in it other than a mistake in Law, or any acts necessary to give validity to the instrument have been omitted, and the mistake is clearly made out by admissible and satisfactory evidence, or is admitted on the record, or is evident from the ^ature of the case, or from the rest of the deed. Equity will rectify the mistake (St. § 152, 157, 159, 166, 168; Lord Glcnorchy v. Bosville and Legg V. Goldwire, 2 Wh. & Tu. 763, 770 ; Cooper v. Fhihhs, L. E. 2 H. L. 149, Brett's L. C. 84 ; Paget V. Marshall, 28 C. D. 255; Tucker v. Bennett, 34 C. D. 754) ; except as against a honCi fide pur- chaser for valuable consideration, without notice (St. § 165 ; 2 Sp. 195), or other person having an equity equal to that of the plaintiff (St. § 176) ; nor will it, as a rule, supply anything for the want of which MISTAKE. 39 the legislature has declared the instrument void ; Tit. I. for that would be to defeat the very policy of the — enactment. (St. § 177.) 89. But in order to enable the Court to rectify an ante-nuptial settlement by striking out a part, it must be proved that it contains something which has been inserted by mistake, contrary to the inten- tion of all the parties. {Rooke v. Lord Kensington, 2 K. & J. 753, 764 ; Sells v. Sells, 1 Dr. & Sm. 42 ; Thompson v. Whitmore, 1 J. & H. 268; Elwes v. Elwes, 3 D. F. & J. 667.) And where an instrument is substantially what the parties intended, although so framed under a mistaken view of the Law, the Court will not rectify the mistake. (St. § 113 — 115.) A bond to leave or convey property has, however, been sometimes upheld in Equity, as an agreement defectively executed. (St. § 136.) 90. A husband cannot take proceedings to have a settle- ment rectified, where he executed it with a knowledge of its contents, though he gave notice before the marriage that he should apply to the Court to have it rectified. {Eaton v. Bennett, 35 Beav. 196.) 91. Equity will hesitate to remedy a defect or supply an omission in a deed in favour of a volunteer even when it has arisen from mere mistake, and though the correction would not be inconsistent with the deed. (2 Sp. 886 ; Bonhote v. Henderson, (1895) 2 Ch. 202.) 92. A voluntary deed therefore will not, as a rule, be rectified on the unsupported evidence of the settlor unless all the parties consent. (St. 164 e, 176; Phillipson v. Kerry, 32 Beav. 628 ; Broun v. Kennedy, 33 Beav. 133, 147 ; Thompson v. Whitmore, 1 J. & H. 268 ; Bonhote v. Henderson, supra.) 93. 40 MISTAKE. Tit. I. It should bp observed, that where the final instru- ^^^- "• ment of conveyance or settlement differs from the preliminary contract, that very circumstance affords of itself some ground for presuming an intentional change of purpose, unless, from some recital in it, or from some attendant circumstances, it appears to have been intended to be merely in pursuance of the original contract. (St. § 160.) 94. When there are articles and a settlement before marriage, as a general rule the settlement alone can be looked to ; and if it is different from the articles, it must be taken as a new agreement. But if it purports to be executed in pursuance of the articles, or if there is clear and satisfactory evidence showing that the discrepancy has arisen from a mistake, the Court will reform the settlement, and make it con- formable to the real intention of the parties. {Legg V. Goldwire, 2 Wh. & Tu. 770.) If the articles are before marriage and the settlement after marriage, the articles are in effect the binding instrument ; and if the settlement gives estates or interests different from those which the Court would give on the construction of the articles, the settlement will be reformed, as between the parties and their represen- tatives and mere volunteers, but not as against a purchaser for valuable consideration without notice. (lb.) 95. And as regards the admissibility of the evidence, it is a rule of the Common Law, independently of the Statute of Frauds, that parol evidence is not admissible to disannul, substantially add to, subtract from, qualify, or vary a written instrument. (See St. § 153, 158.) But upon principle it would seem that cases of accident, mistake, and fraud are (in MISTAKE. 41 many instances at least) to be deemed, in Equity, Tit. I. ■exceptions to this rale. (St. § 155, 156, 161, notes : '■ — '- — remarks of Sir J. Eomilly, M.R., in Mnrrai/v. Parker, 19 Beav. 398.) 96. \. Where an instrument is so general in its terms as to release the rights of a party to property, to which he was wholly ignorant that he had any title, and which was not within the contemplation of the bargain, the Court confines the release to what was intended to be released. (St. § 146.) 97. VI. Equity will relieve where an instrument has been delivered up or cancelled, under a mistake of a party, and in ignorance of the facts material to the rights under it. (St. § 167.) 98. VII. Equity will also supply defects in the execu- tion of powers, on the ground of mistake, in the cases mentioned in the preceding chapter under the head of Accident. 99. VIII. Equity will rectify a clear mistake or omission in a will, if it is apparent on the face of the will. But parol evidence is generally inadmissible. It is admitted, however, to remove a latent ambiguity, as in cases of mistake in the name or description of the devisee or legatee. (St. § 179 — 181 ; Mostyn V. Mostyn, 5 H. L. C. 155 ; Doe d. Hiscocks v. Hiscocks, Tud. Lead. Cas. Eeal Prop., 4th ed. 489.) 100. IX. Equity will grant relief where a mistake in a written contract is fairly presumable from the nature of the transaction. And hence, where there has been a joint loan to two or more obligors, and they are only made jointly liable, the Court will make the bond joint and several. (St. § 162, 163 ; Wilson v. Wilson, 5 H. L. Cas. 40.) 101. 12 MISTAKE. Tit. I. X. Where the mistake is unilateral, the remedy is ^" — '— not rectification but rescission, but the Court may give f"writte°n' °^ to a defendant the option of taking what the plaintiff the'^'mrndof" ™eant to give in lieu of rescission. (St. § 164 e ; mistake or Paget V. Marshall, 28 C. D. 255.) And in cases of fraud the instrument will be entirely set aside. (St. § 694.) Indeed, in cases within the Statute of Frauds, it is an easier matter totally to avoid an agreement than to vary it ; for, in the former case, the Statute of Frauds has no influence whatever ; since "it does not say that a written agreement shall bind, but that an unwritten agreement shall not bind." (Sugd. V. & P., 10th ed., ch. 3, s. 8, pi. 32.) 102. TheJudi- By the stat. 36 & 37 Vict. c. 66, s. 34 (3), all causes 1873, s. 34(3). and matters for the rectification, or setting aside, or cancellation of deeds or other written instruments, are assigned to the Chancery Division. 102 a. ( 48 CHAPTEE III. OF ACTUAL FRAUD. The modes of fraud are infinite ; and " it has been tit. I. said, that Courts of Equity have, very wisely, never laid ^^^' "^" down, as a general proposition, what shall constitute ^gfl^„e\r°j^ fraud, or any general rule, beyond which they will not go, *" general, or the extent of upon the ground of fraud, lest other means of avoiding remedial the equity of the Courts should be found." (St. § 186.) 'he ground of In accordance with the spirit of this remark no attempt *^''*"''- is here made to give a definition of fraud in general. It is usually and accurately divided, however, into two large classes, designated, defined, and treated of under the names of Actual Fraud and Constructive Fraud. 103. An actual fraud may be defined to be any deception Definition of , . „ T i_ • J. 1 J. ^ • actual fraud. or artifice used to circumvent, cheat, or deceive another. (See St. § 186.) 104. The Courts of the Chancery Division, to which the Jurisdiction rectification, or setting aside, or cancellation of deeds f,.aud. or other written instruments, has been assigned by the Judicature Act, will not entertain jurisdiction to set aside a will obtained by fraud, or establish a will suppressed by fraud; for, in such cases, the proper remedy is exclusively vested in the Probate Division of the High Court. (St. § 184, and note ; Wms. on Executors, 9th ed. 464 ; Allen v. M'Pherson, 1 H. L. C. 191 ; Meluish v. Milton, 3 C. D. 27, 33.) But where the fraud does not go to the whole will, but only to some particular clause, or where the fraud is in 44 ACTUAL FEAUD. Tit. I. Cap. TII. Evidence of fraud. Division of actual frauds. unduly obtaining the consent of the next of kin to the - probate, Equity will lay hold of these circumstances to declare the executor a trustee for the next of kin. (St. § 440 ; Wms. on Executors, 9th ed. 467.) 105. In a great variety of other cases, fraud is cognizable at Law ; as in cases of fraud in the sale of chattels personal : and in some of these cases adequate relief could be, and constantly is, obtained at Law. (St. § 184, and note.) 106. It is a rule, as well at Law as in Equity, that fraud is not to be presumed. But, on the other hand, neither at Law nor in Equity is positive proof of fraud indispensably necessary. And a lower degree of proof than that required at Law has always been acted upon in Equity. (See St. § 190 ; Re Terry and White's Contract, 32 C. D. 14.) 107. When a case is based on fraud, the fraud must be proved, and no relief will be given in the suit in which such a case is made, on any different grounds. But where material allegations of fraud are proved, the plaintiff will obtaui relief, although other allega- tions of fraud are not proved. {Moxon v. Payne, L. E. 8 Ch. 881, 887.) 108. It would be impossible, and unnecessary if it were possible, to enumerate all the different instances in which relief will be granted in Equity on the ground of actual fraud. We shall only notice a few of them under the following two heads : 109. I. Of frauds which receive that denomination from a consideration of the conduct of the guilty parties, irrespective of any peculiarity in the condition of the injured parties. 110. II. Of frauds which receive that denomination mainly or in a great measure from a consideration ACTUAL FRAUD. 45 of the peculiar condition of the parties upon whom Tit. I. they are practised. 111. '-^^''- "'^^ I. — 1. Misrepresentation or stifujestio falsi, whether I. First class by word or deed, by artifices to mislead as well as by feuds"^^ positive assertions, constitutes fraud. But to justify i. Misrepre- interposition in such cases the fraud must be material ^'="*''*'°"- or in a matter of substance, and must actually mislead. (St. § 191, 192.) Where a party to whom the mis- representation is made acts upon it to his damage, the other party will be liable for such damage to the party he has misled, and even to a third party who acts upon it, provided the misrepresentation was made with the intent that it should be acted upon by such third person. {Barry v. Croskey, 2 J. & H. 22 ; Cann v. Wilson, 39 C. D. 39; Angus v. Clifford, (1891) 2 Ch. 449.) Equity will not interfere, however, if the fraud was not in the transaction which creates the contract, but in a distinct unconnected transaction. {Rolt V. White, 3 D. J. & S. 360.) Nor will it, as we have seen, interfere if the misrepresentation was on a trifling or immaterial point, or if no injury arose from it. (St. § 191, 195, 196, 203; Pulsfordv. Richards, 17 Beav. 96.) For, in the first ease, the evils of litigation would be far greater than the injury occa- sioned ; and, as to the second case. Courts of Equity do not profess to punish guilt, but to redress wrongs. And Equity will not interfere if the party was not misled by the misrepresentation (St. § 202 ; Nelson v. Stocker, 4 D. & J. 458) ; because, in that case, he was not injured by it. Nor will the Court interpose if the misrepresentation was vague and inconclusive (St. § 191) ; or if it merely amounted to the common language of puffing and commendation of things sold (St. § 201) ; or if it was in a matter of opinion or fact 46 ACTUAL FRAUD. Tit. I. equally open to the inquiry of both parties, and in ^=—^ '— regard to which neither could be presumed to trust the other (St. § 191, 197, 198) ; or if the party injured may properly impute the loss to a want of ordinary care or discretion on the part of himself or his agents (St. § 199, 200 a). For, the Court does not sit to redress injuries which the injured parties, by ordinary and proper care, could have prevented. It is no part of Equity Jurisprudence to encourage carelessness. {lb.) But, on the other hand, there are many cases in which the effect of false representation is not got rid of on the ground that the person to whom it was made has been guilty of negligence. {Redgrave v. Hurd, 20 C. D. p. 13.) And in cases of fraudulent representation or wilful concealment it is no answer that the truth might have been learned by inquiry. (Central Railway of Venezuela v. Kisch, L. E. 2 H. L. 99.) And, a fortiori, this principle applies in all cases where the party is under an obligation to make disclosure. (St. § 217, 218.) 112. Misrepresentation is a ground of relief, whether the party who made the assertion or intimation knew it to be false, or made it without knowing whether it was true or false. (St. § 193 ; Reese River Silver Mining Co. v. Smith, L. E. 4 H. L. 64 ; Hart v. Swaine, 7 C. D. 42.) For fraud is proved when it is shown that a false representation has been made without belief in its truth, or recklessly, careless whether it be true or false. {Derry v. Peek, 14 A. C. p. 374.) So that if a person, whether wilfully or not, makes a false repre- sentation to another, with a reasonable ground for supposing that he or a third person would act upon such representation, and he or such third person does act upon it, and is misled thereby, the person ACTUAL FRAUD. 47 misleading will be made answerable for it. [Hutton v. Tit. i. Rossiter, 7 D. M. & G. 9, 23, 24 ; Slim v. Croiicher, '"''' "' - •2 Gif. 37 ; 1 D. F. & J. 518 ; Barnj v. Croskey, 2 Johns. & H. 1 ; Ramshire v. Bolton, L. E. 8 Eq. 294.) It seems, however, clear that a negligent, as dis- tinguished from a fraudulent, misrepresentation will not support an action for deceit {Angus v. Clifford, (1891) 2 Ch. 449, 464), though in Equity a misrepre- sentation though not fraudulent may be a good defence (Tomkinson v. Balkis Consolidated Co., (1891) 2 Q. B. p. 614). And where a person has been induced to enter into a contract by a material misrepresentation of the other party, he is entitled to have the contract set aside, and not merely to have the representation made good. {Rawlins v. Wickham, 1 Gif. 355 ; 8 D. & J. 304 ; Trail v. Baring, 4 Gif. 485 ; Charlesworth V. Jennings, 34 Beav. 95 ; Haygarth v. Wearing, L. E, 12 Eq. 320 ; Hart v. Swaine, 7 C. D. 42.) And it is not, as we have seen, a sufficient defence to an action for rescission of the contract, that if the party defrauded had used due diligence he might have discovered that the representation was untrue. {Redgrave v. Hurd, •20 C. D. 1 ; supra, par. 112.) 112 a. A contract induced by fraud is not void, but only voidable at the option of the party defrauded ; and though the party who was guilty of the fraud cannot enforce it, yet other persons may, in consequence of it, acquire interests and rights which they may enforce against the party defrauded. {Oakes v. Turquand, L. E. 2 H. L. 325, 346.) 113. If a person, through the fraud of another, has ■executed a deed, or signed a receipt, containing a representation, he must suffer from the fraudulent use made of such deed or receipt by such other person. 48 ACTUAL FRAUD. Tit. I. rather than a third person who has, in the ordinary '■ — — course of business, without negligence or default,. ment. trusted to the document containing such representation. {Hunter v. Walters, L. E. 7 Ch. 75 ; ante, par. 53.) 114. A person may avail himself of what has been obtained by the fraud of another, if he is not only innocent of the fraud, but has given some valuable consideration. (Scholejield v. Templer, 4 D. & J. 433 ; Hunter v. Walters, L. E. 7 Ch. 75.) 115. 2. Conceal- 2. If a person conceals facts and circumstances which he is under some legal or equitable obligation to communicate to the other, it amounts to a fraud, for which Equity will grant rehef. (St. § 204, 207, 214, 217, 220 ; 2 Sp. 765 ; Pulsford v. Richards, 17 Beav. 94 — 96.) As if a vendor sells an estate, knowing that he has no title to it, or that there are incumbrances on it, of which the purchaser is ignorant (St. § 208) ; or if the insured does not communicate to the underwriters all facts and circumstances which increase the risk (St. § 216) ; or if a lessee has obtained a lease of a furnished house on an implied representa- tion that he was of full age ; in which case it will be declared void at the option of the lessor. {Lempriere v. Lange, 12 C. D. 675.) 116. And if a person leases lands, and he knows, and the lessee does not know, that as to a part the lessor has no title, and the lessor does not disclose the fact, the lessee may set aside or repudiate the lease. And he may refuse the part to which there is no title, and elect to keep the remainder. (Mostyn v. West Mostyn Company, 1 C. P. D. 145.) 117. But a purchaser is not bound to communicate his knowledge of the value of the property to the vendor (St; § 207, n. ; Walters v. Morgan, 3 D. P. & J. 7I8) ; ACTUAL FRAUD. 4-9 for it is the business of the vendor to know and suffi- Tit. i. ciently to estimate the worth of his own property. '- '— Thus, if A., knowing that there is a mine in the land of B., of which he knows B. to be ignorant, should conceal his knowledge of the fact, and enter into a contract to purchase the estate of B., for a price which the estate is worth without considering the mine, the contract would be good. (St. § 205.) But a very httle is sufficient to affect the application of this principle ; and if a single word is dropped which tends to mislead the vendor, the principle will not be allowed to operate. (Turner v. Harvey, Jac. 178, per Lord Eldon.) 118. On the other hand the maxim caveat emptor is, in many cases, applied ; and unless there is some mis- representation or artifice to disguise the thing sold, or some warranty as to its character or quality, the purchaser is bound, notwithstanding there may be material intrinsic defects in it known to the vendor, and unknown to the purchaser. (St. § 212.) 119. In foro conscientice, each party is bound to com- municate to the other his knowledge of all material facts, not discoverable by the other, or of which he knows the other to be ignorant. For this is required by the golden maxim, that we should do unto others as we would that they should do unto us. But if Equity were to attempt to enforce the observance of so broad a rule, a far greater inconvenience would ensue than that which is now experienced. For it would often be a matter of doubt with the party wronged, whether the other was really aware of the defect or advantage which he did not disclose. And, frequently, that could only be ascertained from his admissions or denials in a suit. So that, in order to 50 ACTUAL FRAUD. Tit. I. determine this, proceedings for relief against fraud ^'"'- "^' would often be taken in total uncertainty as to the existence of that knowledge, which was of the very essence of the supposed fraud, and absolutely necessary to be proved before any ground for relief could be said to exist. And in many cases there would be the same difficulty in ascertaining whether the defect or advantage, admitting it to be known to the one party, was or was not disclosed by him to the other. 120. To draw a distinction which would, perhaps, give as much effect to the principle of sound morals as would be compatible with avoiding frequent and fruitless litigation, and the encouragement of care- lessness and negligence, the true course would seem to be to hold that Equity will grant relief, if a person does not disclose any material fact, which, from the nature of the case, he must have known, or ought to have known, and which the other party could not be expected to discover with the care ordinarily used in similar transactions. 121, 3. Inade- 3. Even before the Sales of Eeversions Act, 1867 {post, par. 170), mere inadequacy of price, or any other inequality in the bargain, did not constitute by itself a ground to avoid it. (St. § 244 ; Harrison v. Guest, 6 D. M. & G. 424.) For the value of things is always fluctuating, and dependent on numberless circumstances. Besides, a .man may be induced by difficulties or exigencies, or for other reasons, to part with his property at a particular time, for less than that for which another would have sold it. (St. § 245.) And perhaps the lowness of the price may have been the only inducement to the purchaser to make the purchase ; and he may have simply accepted the proposals of the vendor, instead of being the originator quacy. ACTUAL FRAUD. 51 of the transaction, or of beina; actively concerned in Tit. I. ' '^ •' Cap. hi. negotiating it, like a man whose design is to gain a fraudulent advantage over another. 122. Still, however, there may be such an unconscionable- ness or inadequacy in the bargain, as to shock the conscience, and amount to conclusive evidence of , imposition or some undue influence : and in such a case, Equity will interfere on the ground of fraud. And where there are other ingredients of a suspicious nature, gross inadequacy must furnish the most vehement presumption of fraud. (St. . § 246 ; see remarks of Lord Cranworth in Harrison v. Guest, 6 D. M. & G. 424 ; Fry v. Lane, 40 C. D. 312 ; post, par. 171.) As, if proper time for deliberation is not allowed the party injured ; if he is importunately pressed ; if those in whom he placed confidence make use of strong persuasion ; if he is suddenly drawn into an act, without being fully aware of the consequences ; if he is not permitted to consult disinterested friends or counsel, before he is called upon to act, in circum- stances of sudden emergency or unexpected right and acquisition ; if he is an illiterate person, and advan- tage has been taken of his necessities ; or if he is a person of weak understanding. (St. § 251 ; O'Rorke V. Bolinghroke, 2 A. C. 814 ; Nevill v. Snelling, 15 C. D. 679; Fry v. Lane, 40 C. D. 312.) But Equity will not relieve where the parties cannot be placed in statu quo. Such relief, for instance, will not be given in the case of marriage settlements ; inasmuch as the Court cannot unmarry the parties. (St. § 250.) 123. Where a purchase is set aside for inadequacy of consideration, the conveyance will be ordered to stand as a security for what has been advanced with E 2 52 ACTUAL FRAUD. Tit. I. interest. (1 Wh. & Tu. 323 ; James v. Kerr, 40 C. D. Cap. III. ^ „ , 461.) 124. Deeds of the nature of family arrangements are exempt from the rules as to the adequacy of the con- sideration applicable to other deeds ; and are binding when in cases between mere strangers the like agree- ments would not be enforced (St. § 132) ; but if there is any concealment of material facts they will be held invalid on the ground of fraudulent conceal- ment. (St. § 217 ; Persse v. Persse, 7 CI. & Fin. 279 ; Williams v. Williams, 2 Dr. & Sm. 378 ; L. E. 2 Ch. 294. As to deeds of this nature, see also Stapilton V. Stapilton, 1 Wh. & Tu. 223; Brett's Lead. Cas.- 293.) 125. 4. Eefasal of 4. Where gifts and legacies are bestowed on persons, marriage. on condition that they shall marry with the consent of parents, guardians, or other confidential persons, Equity will not suffer the manifest object of the condition to be defeated by the fraudulent, corrupt, or unconscientious refusal of the parties whose consent is required to the marriage. (St. § 257.) 126. II. Second II. There are other frauds which receive that fiSs. ^ "^ denomination mainly or in a great measure from the consideration of the peculiar condition of the injured parties. 127. With regard to these — 1. On persons 1. In the Case of contracts or other acts, however of unsound i j. ■, > . v. mind. solemn, of persons who are idiots, lunatics, or other- wise of unsound mind, wherever, from the nature of the transaction, there is not evidence of entire good faith, or it is not seen to be just in itself or for the benefit of those persons. Equity will set it aside, or make it subservient to their just rights and interests. But where there is good faith, and the contract or ACTUAL FRAUD. 53 other act is for the benefit of such persons, as to Tit. i. provide them with necessaries, the transaction will be ~ upheld, at least if the contractee did not know that he was insane. (St. § 227—229 ; Re Weaver, 21 G. D. 615, 619; Re Rhodes, Rhodes v. Rhodes, 44 C. D. 94, 107.) 128. 2. If a person, at the time of entering into a con- 2. On , , , . , . _ - , intoxicated tract or doing an act, was so excessively drunk as persons. to be deprived of the use of his understanding ; or if there was any contrivance or management to lead him to drink, or some unfair advantage taken of his intoxication, the person who obtained an agreement or deed from him, when so intoxicated, will not be assisted in Equity, but the latter will rather be assisted to get rid of it, on account of the fraud of the other party in obtaining such agreement or deed from a person in such a state or by such means. (See St. § 230—232.) 129. 3. The contracts and other acts of persons who are 3. On persons of weak understanding will be held void in Equity if standing. the nature of such contracts or other acts justifies the conclusion that the party has been imposed on, circumvented, or overreached by cunning, artifice, or undue influence. (See St. § 234 — 238 ; Long-mate v. Ledger, 2 Gif. 157 ; Xottidge v. Prince, 2 Gif. 246 ; Morley v. Loaghnan, (1893) 1 Ch. 736.) The rule of the Common Law seems to have gone farther in cases of wills, since it requires that a testator should be of sound and disposing memory. (St. § 238.) 130. 4. Where a party is not a free agent, and is not 4. On persons equal to protecting himself, Equity will protect him. ^^^^ agents ; Hence the Court will relieve against acts done under 11^'^*.™'^^.'-;^^ duress, or under the influence of threats or of real or fear, imaginary terrors, calculated to deprive a person of 54 ACTUAL FRAUD. Tit. I. fj-ee agency. (St. § 239 ; Boyse v. Rossborough-, 6 — — '— H. L. C. 2, 49; Williams v. Bayley, L. E. 1 H. L. 200.) So the Court of Bankruptcy has power to go behind a judgment and refuse to admit proof in respect of it where the claim was made for purposes of extortion. {Ex parte Banner, Re Blythe, 17 CD. 480.) But to render illegal the receipt of securities by a creditor from his debtor where the debt has been contracted ■ under circumstances which might render the debtor liable to criminal proceedings, it is not sufficient to show that the creditor was thereby induced to abstain from prosecuting. [Flojoer v. Sadler, 10 or in prison, Q_ ^ jy 572.) And the Court watches with the utmost jealousy all contracts made by a person while under imprisonment; and if there is the slightest ground to suspect oppression or imposition, it will or extreme set the Contract aside. And, in like manner, circum- necessity. n , .', it stances of extreme necessity and distress may so entirely overpower free agency as to justify the Court in setting aside a contract on account of some oppression or fraudulent advantage attendant on it. (St. § 239.) 131. 6. On infants. 5. Infants may, even at Law, bind themselves in some cases, by contracts for necessaries suitable to their degree and quality, or by contracts of hiring of services for wages, or by acts which the Law requires them to do. But in general, where a contract may be either for the benefit or to the prejudice of an infant, he may avoid it, as well at Law as in Equity. Where it can never be for his benefit it is utterly void (a). 132. Mie^fA^t*'' ^^ *^^ ^*^*"*^ ^'^ ^ ^^ ^'^'^** ^- ^^' ^- ^' ^* ^^ enacted ACTUAL FRAUD. 55 that " all contracts, whether by specialty or by simple TiT' I- contract, henceforth entered into by infants for the '- '— repayment of money lent or to be lent, or for goods supplied, or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void. Provided always, that this enact- ment shall not invalidate any contract into which an infant may, by any existing or future statute, or by the rules of Common Law or Equity, enter, except such as now by Law are voidable. (Ex parte Jones, 18 C. D. 12-2.) 132a. By section 2, " No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." 132 b. Under the Infants' Settlement Act, 1855, an infant can make a binding marriage settlement with the sanction of the Court ; but a settlement made by an infant without the sanction of the Court is not abso- lutely void but only voidable, and will be binding unless repudiated by the infant within a reasonable time of coming of age. {Edwards v. Carter, (1893) A. C. 360 ; Re Jones, Faiiington v. Forrester, (1893) 2 Ch. 461.) 132 c. It may here be observed that when one of two Case where innocent persons must suffer by the fraud of a third iimooent person, that person shall be the sufferer who by his ^^J-i^™^ ™"^* conduct, however innocently, put it in the power of the third person to commit the fraud. {Adsetts v. Hives, 33 Beav. 52 ; Hunter v. Walters, L. E. 11 Eq. 292.) 133. ( 56 ) CHAPTER IV. Tit. I. Cap. IV. Definition. Four classes of construc- tive frauds. I. Frauds on public policy. 1. Marriage brokage contracts. OF CONSTRUCTIVE FRAUD. Constructive frauds are acts, statements, "or omis- sions, which operate as virtual frauds, on individuals, or, if generally permitted, would be prejudicial to the public welfare, and are not clearly resolvable into mere accident or mistake, and yet may have been unconnected with any selfish or evil design, or may amount, in the opinion of the person chargeable therewith, to nothing more than what is justifiable or allowable. 134. The cases which will be noticed in the present Chapter may be arranged in four classes — I. Relief is granted, on the ground of constructive fraud upon public policy, against agreements, pro- visions, and transactions, which, although they may not operate as frauds upon individuals, would, if generally permitted, be prejudicial, to the welfare of the community. 135. Thus, 1. Marriage brokage contracts, which are agree- ments whereby a person engages to give another a remuneration, if he will negotiate a marriage for him, are void, as tending to introduce matches which are ill-advised, and not based on mutual affection, and therefore against public policy. And they are so utterly void that they are deemed incapable of con- firmation; and money paid under them may be recovered back again in Equity, whether the marriage CONSTRUCTIVE FRAUD. 57 is an equal or an unequal one. (St. § 260—263 ; Tit. i. 1 Wh. & Tu. 573.) 136. ^^''- ^^^- 2. The same rules are applied to bonds and other '^- Agreements agreements entered into as a reward for using testato^"'^^ influence over another, to induce him to naake a will for the benefit of the obligor ; for such contracts encourage a spirit of artifice and scheming, and tend to deceive and injure others. But such cases must be distinguished from agreements between heirs and other relatives to share the estate between them ; for such agreements are generally made to suppress fraud and undue influence and cannot truly be said to dis- appomt the testator's intention, if he does not impose any restriction upon his devisee. (St. § 265 ; Hic/c/ins v. Hill, 56 L. T. 426.) 137. 3. On a similar ground, secret contracts made with ^- p™traots . _ to facilitate parents, or guardians, or other persons standing in a marriage. peculiar relation to one of the parties, whereby, on a treaty of marriage, they are to receive remuneration for promoting the marriage or giving their consent to it, are held void. (St. § 266, 267 ; 1 Wh. & Tu. 573.) 138. 4. The same principle applies where persons, upon i- Frauds on a treaty of marriage, by concealment or misrepresen- tation, mislead other persons. So where a man on the treaty for the marriage of his sister let her have money privately in order that her portion might appear as large as was insisted on by the intended husband, and she gave a bond for repayment, the bond was set aside. (St. § 268—270 ; and see post, par. 181.) 138 a. 5. On the other hand, a contract is void if it is 5. Conti-acts . . , • J /. • 11 .... or conditions expressly m restramt oi marriage generally, or it it i„ restraint of is so restricted that the party upon whom it is to IJJco^g^tl;,"/ operate is unreasonably restrained in the choice of with the duty 58 CONSTRUCTIVE FRAUD. Tit. I. marriage (see St. § 274, 276—283 ; Scott v. Tyler, Cap. IV. ^ ,^^ ^ r[,y_ 535) . 9,3^ ^hat a woman shall not marry of married ^ ^^^ ^j^^ j^^^ ^^^^ ^^^ gg^^^^g of 5OOL a year (St. § 280) , or shall not marry till fifty years of age, or shall not marry any person residing in the same town, or any person who is a clergyman, a physician, or a lawyer, or any person except of a particular trade or occupation. (St. § 283 ; 1 Wh. & Tu. 535—576.) 139. A contract or condition imposed on a married woman to cease to reside at a place where her husband then resides is bad. (Wilkinson v. Wilkinson, L. E. 12 Eq. 604.) 140. 6. Contracts 6. So, Contracts and conditions in general restraint "I restraint of of trade, or beyond what is reasonably necessary for trade. ^^le protection of the party seeking protection, are void, as tending to discourage industry, enterprise, and just competition. But a person may be restrained from carrying on trade in or within a certain distance from a particular place, or with particular persons, or for a reasonable limited time, provided that the con- tract be reasonable. And a person may lawfully sell a secret in his trade or business, and restrict himself from using the secret. (St. § 292 ; Brett's L. C. 300, 303 ; Trego v. Htnit, (1896) A. C. 7 ; Benwell v. hms, 24 Beav. 307.) 141. liule. The rule in such cases is, that the contract must be Contractmust lie reasonable, reasonable : beyond that there is no rule that the con- tract must be limited as to space ; and an unlimited prohibition is only void when the circumstances in which it has been made are unreasonable. The ques- tion in each ease is, whether the restraint extends further than is necessary for the reasonable protection of the covenantee; if not it will be enforced even though it may be unlimited as to space. {Rousillon v. OONSTEUCTIVE FKAUD. 59 BoiisiUon, 14 C. D. 351 ; Maxim Nordenfelt Guns, Tit. i. <('■(■. V. Nordenfelt, (1894) A. C. 535, where the nature - '^'"'' ^^'' and difference of covenants in general and partial restraint of trade are discussed; Brett's Lead. Cas. 303.) And the Court will, where possible, sever what is reasonable from what is unreasonable in the restraint. (Rogers v. Haddocks, (1892) 3 Ch. 346 ; Haynes v. Doman, (1899) 2 Ch. 13.) 141 a. 7. Upon analogous principles, agreements which 7. Contracts are founded upon violations of public trust or con- p"bii!jf™st°^ fidence, or of the rules adopted by Courts in furtherance of the administration of justice, are held void. (St. § 294.) 142. 8. Contracts for the buying, selling, or procuring s. Contracts of pubHc offices are void, as tending to introduce into offioe^!'^"' public offices persons who are unfit for them in respect of character and other qualifications. (St. § 295.) 143. 9. So are agreements for the suppression of crimi- 9. Suppres- nal prosecutions (St. § 294), as tending to weaken criminal the beneficial preventive influence of the Law, by Proceedings. diminishing the certainty of punishment. 144. 10. So are contracts which have a tendency to lo. cham- encourage champerty (St. § 294 ; Eeynell v. Sprye, cOTrapTcon- 1 D. M. & G. 660), and agreements, bonds, and '*i>ierations. securities founded on corrupt considerations, that is, on the commission of what is contrary to the moral or municipal Law, or on the evasion thereof. (St. § 296—297.) 145. And here may be noticed a distinction in the relief granted in the ease of illegal contracts. In general where the parties are alike involved in an illegal transaction Equity will give no relief to either ; but where the transaction is repudiated as being against public policy, the fact that the party seeking relief is 60 CONSTRUCTIVE FEAUD. Tit. I. Cai'. IV. Distinction between void and voidable transactions as regards confirmation. II. Frauds in the case of persons in the confidential relations of — particips criminis is not material, the reason being that the public interest requires that the relief should be given, and it is given to the public through the party. (St. § 298.) 145 a. Wherever any contract or conveyance is void, either by a positive Law or upon principles of public policy, it is deemed incapable of confirmation ; it being a maxim. Quod ah initio non valet, in tractu tenvporis non convalescit. But where it is merely voidable, or turns upon circumstances of undue advantage, surprise, or imposition, there it is valid until rescinded, and if it is deliberately and upon full examination confirmed by the parties, it will remain valid, except where, as under the Infants' Belief Act, the contract is incapable of confirmation. (St. § 306. See Reese River Silrer Mining Co. v. Smith, L. E. 4 H. L. 64.) 146. And where a party to a deed acts upon it in part, that confirms it altogether, in the absence of evidence of a contrary intent. (Jarratt v. Alclam, L. E. 9 Eq. 463 ; Davies v. Daries, L. E. 9 Eq. 468.) 147. II. With regard to transactions inter vivos, where a reasonable confidence is reposed in another person, or a peculiar influence is possessed by him in conse- quence of standing in a confidential relation, and he makes use of that confidence or that influence to obtain an advantage to himself at the expense of the party confiding in him or under his influence, he will not be permitted to retain any such advantage, however unimpeachable the transaction would have been if no such confidence had been reposed, or no such confidential relation had existed. (Huguenin v. Baseley, 1 Wh. & Tu. 247 ; Brett's L. C. 78 ; Moxon V. Payne, L. E. 8 Ch. 881; Mitchell v. Homfray, 8 CONSTRUCTIVE FRAUD. 61 Q. B. D. 587 ; Allcard v. Skinner, 36 C. D. 145 ; Tit. I. Cap IV Morley v. Loughnan, (1893) 1 Ch. 736.) But it has '- — '— been held that this does not apply to a devise or bequest. To set aside a testamentary disposition on account of undue influence, it must amount to this — that the testator was not a free agent. {Parfitt v. Latrless, L. E. 2 P. &■ D. 462, 469.) 148. 1. Contracts and conveyances whereby benefits are i. Parent or secured by children to their parents or to persons standing in ■who stand in loco parentiun, or dispositions made by ^"co^arorfis young persons in favour of their relatives who have having ■ n -p 1 ■ -1 influence. an miiuence over them, if not entered mto with scrupulous good faith, and reasonable under the circumstances, will be set aside, unless third persons have acquired an interest under them. (St. § 809 ; Wright v. Vanderplank, 8 D. M. & G. 133 ; Baker v. Bradley, 7 D. M. & G. 597, 620 ; Turner v. Collins, L. E. 7 Ch. 329; Kempson v. Ashhee, L. E. 10 Ch. 15; Hoblyn v. Hohlyn, 41 C. D. 200.) In such cases it must be proved — first, that the deed was the real and actual deed of the child or young person, and was intended by him to have the operation it has ; and, secondly, that such intention was fairly produced. And where a child, recently after attaining a majority, makes over property to the father, without consideration, or for an inadequate consideration. Equity will require the father to be able to show that the child was really a free agent, and had adequate and independent advice. (Hoghton v. Hoghton, 15 Beav. 278, 302 ; Savcrij v. King, 5 H. L. Cas. 627, 655 ; Everitt v. Everitt, L. E. 10 Eq. 403; Bainbrigge v. Browne, 18 C. D. 188.) And if an estate held in trust for a father for life, the remainder to his son in fee, is sold or mortgaged by the father and son immediately on the 62 CONSTRUCTIVE FRAUD. Tit. I. son coming of age, and the money paid to the father, — — '- the transaction will be void unless its straightforward- ness be proved. {Hannah v. Hodgson, 30 Beav. 19 ; Baker v. Bradley, 7 D. M. & G. 597.) But an arrangement between father and son for the settle- ment of family estates, if fair and reasonable, will be supported, though the father did exercise parental influence. {Hartop-p v. Hartopp, 21 Beav. 259.) 149. If a person seeking to impugn such transactions is not reasonably prompt in so doing, after the influence has ceased, no relief will be given, unless there is actual fraud. {Tamer v. Collins, L. E. 7 Ch. 329 ; Kempson v. Ashhee, L. E. 10 Ch. 15.) 150. 2 Guardifin. 2. During the existence of guardianship, the rela- tive situation of the parties occasions a general inability to deal with each other. And Equity will not permit transactions between guardians and wards to stand, even when they have occurred after the minority has ceased, if the intermediate period is short, especially if all the duties attached to the office have not ceased, or if the estate, still remains in some sort under the control of the guardian ; unless the circumstances demonstrate the fullest deliberation on the part of the ward, and the most absolute good faith on the part of the guardian. 151. And the same principles apply to quasi guardians or confidential advisers, as medical advisers or minis- ters of religion, and to every case where influence is acquired and abused, or confidence is reposed and betrayed, except in the case of husband and wife. (St. § 317—320 ; Huguenin v. Baseley, 1 Wh. & Tu. 247; Allcard v. Skinner, 36 C. D. 145; Morley v. Loughnan, (1893) 1 Ch. 736 ; Barron v. Willis, (1899) 2Ch.578.) 152. CONSTRUCTIVE FRAUD. 63 But when the guardianship has entirely ceased, Tit' I- and a fair and full settlement of all transactions ^ growing out of it has been made, and a sufficient time has intervened to allow the ward to feel completely independent of the guardian, there is then no objection even to a bounty being conferred upon the latter. (St. § 230.) 153. 3. A solicitor is not incapable of contracting with 3. Solicitor. his client ; but as the relation must give rise to great confidence in the solicitor, or to very strong influence over the client, the relation must be dissolved before the contract, or the whole onus of proving the fairness and propriety of the transaction will be thrown on the solicitor, or he must show that the client had sufficient advice and assistance to relieve him from the pressure arising from the relation of solicitor and client, and that he has taken no advantage of his professional position, but that he has done as much to protect the client's interest as he would have done in the case of the client dealing with a stranger. It is not necessary to establish that there has been fraud or imposition on the client ; the onus of establishing perfect fairness is on the solicitor; and if there is no such proof. Equity will treat the case as one of constructive fraud. (St. § 310—313 ; Brett's Lead. Cas. 74 ; Savery v. King, 5 H. L. C. 627, 655, 656.) And a solicitor who is an agent for a sale cannot become the purchaser, without fully explaining to the parties interested all the circumstances of the sale and of the value of the property ; because his duty and his interest are in conflict. {In re Bloi/e's Trust, 1 Mac. & G. 494, 497.) And if a solicitor can show that he is entitled to purchase, yet if, instead of openly purchasing, he purchases in the name of a trustee or agent, without 64 CONSTRUCTIVE FRAUD. Tit. I.^ disclosing the fact, no such purchase can stand. ^^^' ^^' (Leivis V. Hillman, 3 H. L. C. 630; McPherson v. Watt, 3 A. C. 254.) 154. While the relation exists, a solicitor shall not, either personally or through his wife, accept a gift, or, in any way whatever, in respect of the subject of any transaction between him and his client, make a gain to himself at the expense of his client, beyond the amount of the just and fair professional remuneration to which he is entitled. (St. § 312 ; Tomsnn v. Judge, 3 Drew. 306 ; Morgan v. Minett, 6 C. D. 638 ; Lih's v. Ternj and Wife, (1895) 2 Q. B. 679.) On the above principle, an agreement on the part of a client to allow a solicitor a commission of so much per cent, on a fund in Court, as a remuneration for recovering the fund or employing another solicitor to recover it, was declared void, as contrary to the policy of the Law. {Strange v. Brennan, 15 Sim. 346.) And it was held that an agreement by a client to allow his solicitor interest on his bill of costs, could not be maintained — at all events, not unless the solicitor informed the client that the Law allowed no such charge, or the client acquiesced, after the termination of the relation, and after proper advice upon the subject. (Lyddon v. Moss, 4 De G. & J. 104.) But a deed executed by a client in favour of his solicitor, if voidable, may be confirmed by the will of the client. {Stumj) v. Gaby, 2 D. M. & G. 623. But see Waters v. Thorn, 22 Beav. 547, 559.) 155. An agreement between a solicitor and client, that a gross sum shall be paid for costs for business already done, was formerly and still is valid. But it was decided that an agreement to pay a gross sum for business hereafter to be done, was void ; and that if a CONSTRUCTIVE FRAUD. 65 solicitor takes a gross sum for his services, without an Tit. I. account, he should preserve evidence of the fairness — ~ '— of the agreement, and that the client had good advice, or had full opportunity and capacity to judge for himself. {In re Newman, 30 Beav. 196 ; Morgan v. Higciins, 1 Gif. 277.) 156. Under the stat. 33 & 34 Vict. c. 28, which is The Attorneys , . 1 , , !_ L- 1 • 1 J i J and Solicitors applicable to contentious business, but not to con- ^ot, 1870. veyancing and non-contentious business, which is regulated by the stat. 44 & 45 Vict. c. 44, the remuneration of a solicitor for past or future services may be fixed by agreement in writing, but the amount payable under the agreement is subject to taxation as a bill of costs. This applies between a solicitor and ordinary client, but not between a solicitor and town agent. (Ward v. Eijir, 15 Ch. D. 130.) The agreement must be understood by the client and be reasonable in amount {Re Stuart, Ex parte Cathcart, (1893) 2 Q. B. 201) ; but it is suf&cient if it be signed by the client only {Re Frape, Ex parte Perrett, (1893) 2 Ch. 284). The agreement is not to affect the interests of third parties, and does not relieve the solicitor from responsibility for negligence. An improper agreement may be set aside on motion or petition to the Court or judge, who may reopen an agreement within twelve months of payment. An agreement that if the solicitor recovers the property in dispute, he shall receive ten per cent, on it, is champerty. {Re Attorneys Act, (1870) 1 Ch. D. 573.) And interest may be allowed on taxation. By the stat. 44 & 45 Vict. c. 44, The Solicitors' ,.,,,, I !_■ 1 ■ Remuneration which relates to non-contentious business, an agree- ^gt^ ^gsi, ment may be made in writing, signed by the person to be bound thereby or his agent, between solicitor and client for the remuneration of the solicitor by a S. F 66 CONSTRUCTIVE FRAUD. Tit. I. gross sum, or by commission or percentage, or by Cap^ A ._ gg^jg^j.y^ ^^. otherwisB, as the parties think fit. 157. If a solicitor and mortgagee obtains a conveyance from the mortgagor, and the mortgagor is a man in humble circumstances' without any legal advice, the onus of justifying the transaction, and showing that it was a fair and right transaction, is thrown upon the mortgagee. {Frees v. Coke, L. R. 6 Ch. 645, 649; and see post, par. 169.) 158. .5. Doctor. 5. Similar principles apply to a medical adviser and his patient. (St. § 314.) But in this and in all other cases, if the confidential relation has ceased, and the donor elects to abide by the gift, that would be a suffi- cient confirmation of the gift, at all events to prevent its being set aside after the donor's death. {Mitchelly. Homfraij, 8 Q. B. D. 587 ; cf. Tyars v. Alsojh 37 W. R. 889.) 159. 6. Agent. 6. An agent will not be permitted to reap any advantage by becoming secret vendor or purchaser of property which he is authorized to buy or sell for his principal. (St. § 315.) So that if an agent sells his own property to his principal, as the property of another, without disclosing the fact, or if an agent purchase the goods of his principal in another name, however fair the transaction may be, the principal may either repudiate it, or may claim any profit made by the agent ; in order to deter agents from placing them- selves in a state of temptation to benefit themselves rather than their employers. And if an agent employed to purchase for another purchases for himself, he will be. considered as the trustee of his employer, at the option of the latter. (St. § 316, 1211a ; Bentlei/v. Craven, 18 Beav. 75 ; Tyrrell v. Bank of London, 10 H. L. C. 26 ; Kimher v. Barber, L. E. 8 Ch. 56 ; De Bussche v. Alt, CONSTRUCTIVE FRAUD. 67 8 C. D. 286. Boston, cU: v. Ansell, 39 C. T>. 339.) Tit. I. And in all transactions directly and openly entered into — - - — - between principal and agent, the utmost good faith is required ; so that the agent must not conceal any facts within his knowledge which might influence the judgment of his principal as to the price or value. (St. § 315, 316a; see Dalh/ v. Wonliam, 33 Beav. 154 ; De Bussche v. Alt, 8 C. D. 286.) 160. 7. To guard against the danger of any advantage '■ Trustees, being taken by a trustee, and to remove all temptation from him, he is never permitted to obtain any profit or advantage to himself in managing the concerns of his cestui que trust, but whatever benefits or profits are obtained will belong to the cestui que trust. And he is not allowed to pai-take of the bounty of the party for whom he acts, except under circumstances which would make the same valid if it were a case of guardianship. (St. § 321, 322 ; Lewin on Trusts, 10th ed. 296 ; see infra. Tit. II. c. YI. div. IV. and c. VII. div. XII.) A trustee cannot purchase the trust estate from him- self or from his co-trustee. And if a purchase is made of the trust estate by the trustee from his cestui que trust, although at a public auction, unless there has been no fraud, concealment, or advantage on the part of the trustee, and no want of protection and security on the part of the cestni que trust, the cestui que trust may, within a reasonable time, set aside the purchase on application to the Court, and require a re-convey- ance by the trustee, or where the trustee has sold it to a person with notice, by such person, the cestui que trust repaying the price which the trustee gave, with interest at 4.1. per cent., and the trustee or purchaser accounting for the profits without interest, or, if in actual possession, being charged with an occupation F 2 68 CONSTRUCTIVE FRAUD. Tit. I. Cap. IV. 8. Counsel, agents, trustee.s, and solicitors of a banki-upt or insolvent, auctioneers, and creditors. 9. Executors or admini- strators. 10. Directors and promoters. II. Debtor, creditor, and surety. rent ; or may require a re-sale, and, if the re-sale pro- duces more than the trustee gave, the cestui que trust may repudiate the first sale and adopt the re-sale, but if less, he may affirm the first sale. (Dart. V. & P. 6th ed. 52; Lewin on Trusts, 10th ed. 551, 560; St. § 322.) 161. 8. In order to prevent the temptation of availing themselves of information for their own benefit, and concealing it from those for whom they act, the same restriction on the right of purchase applies to other persons standing in similar confidential situations ; as to counsel, agents, trustees, and solicitors of a bankrupt's or insolvent's estate, auctioneers, and creditors, who have been consulted as to the sale. (St. § 322 ; Pooley v. Quilter, 2 D. & J. 327 ; Crowthery. Elcjood, 34 C. D. 698.) 162. 9. And it may be laid down as a general rule with regard to executors or administrators, that they will not be permitted under any circumstances to derive a benefit from the manner in which they transact the business of their office. (St. § 322 ; Robinson v. Pett, 2 Wh. & Tu. 606.) 163. 10. In like manner a director or promoter of a company will not be allowed to make any secret profit by virtue of his position as director or promoter, and will be compelled to account for any profit so made to the company. (St. § 323, a, b; Williams on Account, 243.) 163 a, 11. Entire good faith is required between debtor and creditor and sureties. And if a creditor does or omits to do any act which he is required to do by the surety, or is bound to do, and that act or omission may prove injurious to the surety, or if a creditor enters into any stipulations with the debtor unknown CONSTRUCTIVE FRAUD. 69 to the surety, and inconsistent with the terms of the '^'i- f- original contract, the surety may set up such contract — '■ '- — as a defence to any proceeding against him. So that if a creditor stipulates \Yith his debtor, in a binding manner, upon a sufficient consideration, to give further time for payment, without the consent of the surety, the latter will thereby be discharged, if the arrangement might be injurious to him. (St. § 324 — 326, 883, 883a, note; Eees v. Berringtoa, 2 Wh. & Tu. 568 ; Brett's L. C. 247 ; Oriental Financial Cor- poration V. Overend & Co., L. E. 7 Ch. 142 ; Rouse v. Bradford Banking Co., (1894) A. C. 586.) But it is not every alteration of his position by the creditor which will discharge the surety. To have this effect the alteration must be such as to interfere with his remedies against the principal debtor. So it has been held that the giving of time does not discharge the surety, if it is agreed between the creditor and the principal debtor, when further time is given, that the surety shall not be thereby discharged. (St. § 326 ; Oriental Financial Corporation v. Overend d- Co., L. R. 7 Ch. 150, per Hatherley, C. ; Rouse v. Bradford BanJcinri Co., (1894) 2 Ch. 32, per Lindley, L.J.) Also that a covenant not to sue the debtor, or a deed of release reserving the creditor's rights against the surety, does not discharge the surety. (Green v. Wynn, L. E. 4 Ch. 204.) The reason for this is that when the creditor's remedy against the surety is reserved, the principal debtor cannot complain if the surety, if obliged to pay the debt, should claim to be indemnified by him. The law has been laid down as follows: — "It is clear that, even when the principal debtor is released by a formal instrument under seal, if the remedy against the surety is reserved, the surety 70 CONSTRUCTIVE FBAUD. Tit. I. Cap. IV. III. Frauds in case of persons peculiarly liable to be imposed on. 1, Bargains "witli expectant heirs, can be sued. The reason why a simple release of the principal debtor discharges the surety is, that it would be a fraud on the principal debtor to profess to release him, and then to sue the surety, who in turn would sue him ; but where the bargain is that the creditor is to retain his remedy against the surety, there is no fraud on the principal debtor, and the Court will give effect to the intention of the parties by construing the release as a covenant not to sue the principal debtor." (Judgment of Sir G. Mellish, L.J., in NevilVs Case, L. E. 6 Ch. 47.) Mere delay on the part of the creditor, at least if some other equity does not inter- vene, unaccompanied with any valid contract for such delay, will not amount to laches, so as to dis- charge the surety. (St. § 326; Tucker v. Laing, 2 K. & J. 745.) But the sureties are entitled to come into a Court of Equity, after a debt has become due, to compel the debtor, or any one who has given them an indemnity, to exonerate them from their liability by paying the debt. (St. § 327, 499 ; Wooldriclge v, Norris, L. K. 6 Eq. 410; and see judgment in Green v. Wynn, L. E. 4 Ch. 207 ; Wolmershauseii v. Gullicl; (1893) 2 Ch. 514.) 164. III. Belief will be granted in favour of those classes of persons of whom, from their peculiar circumstances, irrespective of any mental incapacity, undue advantage may readily be taken, even where the transaction could not be impeached if entered into by parties otherwise situated. (Ead of Chesterfield v. Janssen, 1 Wh. & Tu 289.) 165. Thus, 1. Bargains with expectant heirs will be set aside, unless the purchaser, on whom the onus probandi rests, can show that the transaction was fair, just and reasonable, or that the bargain was fully made CONSTRUCTIVE FEAUD. 71 known to and approved by the person to whose estate Tn- 1, the expectant heir hoped to succeed; because it is '■ '— the policy of Equity to prevent designing men from taking advantage of persons whose interests are future, and therefore apt to be under-estimated or improvidently disposed of, especially by the neces- sitous, the thoughtless, and the young ; and it is also the object of Equity to discourage transactions by which the intentions of the ancestor or other person from whom the property was expected are disappointed, and, by cutting off relief at the hands of strangers, to oblige the heir to disclose his difficulties at home. (See St. § 334—340, 343.) 166. If the heir, after being relieved from his necessities, absolutely and deliberately, and on full information as to his right of setting aside the bargain, confirms the transaction, or does any act by which the rights or property of the other, party are injuriously affected, he will not be allowed to repudiate the bargain. (St. § 345, 346.) 167. The repeal of the usury laws has not altered the rules of the Court as to dealings with expectants. (Miller v. Cook, L. E. 10 Eq. 641, 646 ; Tijler v. Yates, L. K. 6 Ch. 665; Earl of Ai/Irsford v. Monis, L. E. 8 Ch. 490.) 168. The same relief is afforded to remaindermen and andremainder- _ , , , men and reversioners, unless the purchaser can show that the reversioners. transaction was fair, just, and reasonable, or that the bargain was fully made known to and approved by their parents or other persons standing in loco parentis, who had the means of obviating the necessity of such an alienation of their future interests. (St. § 334 — 340 ; Beynon v. Cook, L. E. 10 Ch. 389.) The relief also extends to the case of money lent on unconscionable 72 CONSTBUCTIVE FRAUD. Tit. I. terms, not fully understood by the borrower, to Cap. IV. . , , , . J. V. a person, without expectations, except such as are founded on his father's position in life. (Nevill v. Siiellimi, 15 C. D. 579.) And the like relief will be given even where the property is in possession if the purchase is made from a poor and ignorant man at a considerable undervalue, the vendor having no independent advice. (Fry v. Lcme, 40 C. D. 312 322.) 169. By the stat. 31 Vict. c. 4 (Sale of Eeversions Act), it is enacted that " No purchase, made bond fide and without fraud or unfair dealing, of any reversionary interest in real or personal estate shall hereafter be opened or set aside merely on the ground of under- value " (s. 1) ; and that "the word ' purchase' in this Act shall include every kind of contract, conveyance, or assignment under or by which any beneficial interest in any kind of property may be acquired" (s. 2). (See ■ O'Rorke v. Bolingbroke, 2 A. C. 814.) 170. This Act in no way alters the onus prohandi in these cases; and undervalue may still give rise to a presumption of fraud and therefore be a ground for relief ; for fraud in these cases need be nothing more than an unconscientious use of the power arising out of the circumstances. {Fry v. Lane, 40 C. D. 312 ; Earl of Aylesford v. Morris, L. K. 8 Ch. 484, 490.) 171. 2. Post-obit 2. On similar principles post-obit bonds and other bonds, &c., by . j. , i-, expectants. Securities of the like nature are set aside, when made by heirs and other expectants. A post-obit bond is an agreement made, on the receipt of the money by the obligor, to pay a sum exceedmg the sum so received and interest thereon, on the death of the person upon whose decease he expects to become entitled to some CONSTRUCTIVE FRAUD. 73 property. (St. § 34'2.) Even the sale of a post-obit T"'- i, bond at a public auction \Yill not give it validity, '- unless the sale was free, fair, and with the usual precautions and advertisements. (St. § 347.) If, however, these contracts are perfectly fair in other respects relief will not be granted, except upon the terms of paying that to which the lender is equitably entitled, in accordance \Yith the maxim that he who seeks equity must do equity. (St. § 344.) 172. 3. Where tradesmen and others have sold goods to 3. Sales to . . -, expectants young and expectant heirs, at exorbitant prices, and at exorbitant under circumstances indicative of imposition, or of r™^^- undue influence, or of an intention to connive at profuse expenditure, unknown to their parents or other persons standing in loco ■parentis, Equity has cut down the claim to a just amount. (St. § 348.) 173. 4. Common sailors being so extremely generous, 4. Common credulous, and improvident a class of men that they require guardianship all their lives, Equity treats them in the same light as young expectant heirs ; and relief is generally afforded against contracts respecting their prize money or wages, wherever any inequality appears in the bargain, or any undue advantage has been taken. (St. § 332.) 174. 5. Where a person, shortly after attaining his 5. Disposition . by a person majority, makes a gift, sale, or lease, m favour of a after relative, it will be set aside, unless the grantor or "«J°"t.v- lessor makes it intentionally and deliberately after having had the fullest information on the subject, and separate, independent, and disinterested advice ; even though the terms, in the case of a sale or lease, were fair, but yet not so advantageous as might have been obtained. {Savery v. King, 5 H. L. C. 627, ante, par. 149.) 175. 74 CONSTRUCTIVE FBAUD. Tit. 1. IV. Where something is said or done, or some \ — ^— omission is made, which operates as a virtual fraud frauds on ^ upon an individual, then although it may arise from imspective of nothing more than mere neglect, unconnected Avith any con- any selfish or evil design, or may amount, in the fidential •' , , . i_, • i.-£ i i relation, or opinion of the party, to nothing more than justitiaole liability'tr artifice, or to a fair attempt to obtain a reasonable imposition. advantage, or to an allowable act, statement, or omission, of some other kind, relief will be granted on the ground of constructive fraud. 176. Thus, 1. Jiisleading. 1. Where a person, by some act, statement, or omission, whether beneficially to himself or not, knowingly produces a false impression on another, who is misled and injured thereby; and such act, statement, or omission, when rightly considered, is contrary to plain moral duty or good faith, but yet may not have been connected with any design either to injure another or to benefit the person who is guilty thereof, in such case the latter alone, even though an infant or married woman, shall suffer thereby, on the ground of constructive fraud. (See St. § 384 — 390 ; 2 Sp. 575, 576.) For instance, where a person, knowing himself to be the owner of property, per- mits another to sell it as his own to a third person, who purchases under the supposition that the vendor has a good title, the real owner will not be allowed to assert his title to it. (St. § 385, 389.) And where a person, aware of the existence of an instrument under which he might reasonably have supposed that he took some interest, neglects to make proper inquiries as to the fact, and encourages a stranger to deal with another person respecting property in which he himself is interested under such instrument, he will be bound by the transaction. (See St. § 387.) And where a CONSTEUCTIVE FRAUD. 75 lease was granted on the security of which money was Tit. i. lent, and the lessor, before the lease was granted, was — asked by the lender whether he intended to grant such lease, and he answered in the affirmative, forgetting that he had previously granted another lease to the same person, who had assigned it for value, the lessor was held liable for the loss arising from the invalidity of the security. (Slim v. Croucher, 1 D. F. & J. 518 ; ante, par. 112a.) 177. " If a man makes a representation, on the faith of which another man alters his own position, enters into a deed, incurs an obligation, the man making it is bound to perform that representation, no matter what it is, whether it is for present payment or for the continuance of the payment of an annuity, or to make a provision by will. That in the eye of a Court of Equity is a contract, an engagement which the man making it is bound to perform." (Bacon, V.-C, in Dashtvood v. Jermyn, 12 Ch. D. 776.) 177 a. 2. Upon analagous principles, agreements whereby 2. Frauds on persons agree not to bid against each other at an auction, were formerly held to be void on the ground that such agreements may cause the property to be sold at an under-value, and thereby injure the person interested in the proceeds of sale ; and tend to preju- dice the character and value of auctions in general. But such agreements are now held to be valid even where the sale is made under the order of the Court. (See St. § 293 ; Re Caretv's Estate, 26 Beav. 187 ; Galton V. Emiiss, 1 Coll. 243.) On the other hand, if under-bidders or puffers are employed at an auction to enhance the price, the sale will be void. (St. § 293.) But under the stat. 30 & 31 Vict. c. 48, a vendor may, in the particulars or conditions of sale. 76 CONSTRUCTIVE FRAUD. reserve to himself the right to bid at an auction, either in person or by one agent. And a similar pro- vision is contained in the Sale of Goods Act, 1893, s. 58. 178. 3. Uncon- . 3_ ^.s the Statute of Frauds was designed as a pro- scientious use of the Statute tection against fraud, it will never be allowed to be set up as a protection and support of fraud. And hence, where from any circumstances which may have resulted from fraud, a contract has not been reduced into writing as it ought to have been, it will be enforced against the party who is chargeable with the omission, in case he attempts to shelter himself behind the provisions of the Statute. (See St. § 330, Re Marlborough, Davis v. Whitehead, (1894) 2 Ch. 133 ; Hussey v. Home-Payne, 4 A. C. 311; Rochefoucauld v. Boustead, (1897) 1 Ch. 196.) 179. 4. If clandestine marriage contracts are designed to impose on parents or persons standing in loco jiarentis or in some other peculiar relation to the parties, so as to disappoint their bounty, or to defeat their intentions in the disposition of their property, such contracts will be set aside, or the equities will be held the same as if they had not been entered into. (See St. § 275.) 180. 5. So, relief will be granted to the injured parties, where persons, after doing acts required to be done on a treaty of marriage, render those acts virtually unavailing, by entering into other secret agreements, or derogate from those acts, or otherwise commit a fraud upon a marriage. (See St. § 268 — 272.) As where a parent declines to consent to a marriage, on account of the intended husband being in debt, and the brother of the latter gives a bond for the debts, to procure such consent ; and the intended husband then 4. Clandestine marriage con- tracts. 5. Frauds on marriages. CONSTRUCTIVE FRAUD. 77 gives a secret counter-bond to his brother, to indemnify Tit. i. him against the first bond. (St. § 272.) So where a ^JI-_ brother, on the marriage of his sister, let her have a sum of money privately, that her fortune might appear to be as much as was insisted on, and the sister gave a bond to the brother to secure the repayment thereof, the bond was set aside. (St. § 270.) So where, upon a treaty of marriage, a creditor of the intended hus- band concealed his own debt, and misrepresented to the wife's father the amount of the husband's debts, the transaction was treated as a fraud upon the marriage, and the creditor was prevented from enforcmg his debt. (St. § 271.) And where a father, on the marriage of his daughter, enters into a convenant, that on his death he will leave her a full and equal share of all his personal estate, he cannot afterwards transfer a portion of his personal property to another child, retaining the annual income thereof for his life. (St. § 382.) 181. 6. Eelief was also granted against acts secretly 6. Frauds on done by a woman in contravention of the marital oTexpeotir-' rights, or in disappointment of the just expectations *'°"^' of her intended husband. As where a woman, in contemplation of and during the treaty for marriage, and without the privity of her intended husband, makes a settlement to her separate use, or a convey- ance in favour of persons for whom she is under no moral obligation to provide. But a reasonable pro- vision for her children by a former marriage, under circumstances of good faith, is free from objection. (St. § 273 ; 2 Sp. 505 ; Countess of Strathmore v. Boives, 1 Wh. & Tu. 613; Taylor v. Pugh, 1 Ha. 608.) 182. 7. In consequence of the stat. 13 Eliz. c. 5, all 7. Frauds under the 78 CONSTRUCTIVE FRAUD. Tit. I. fraudulent deeds and dispositions of lands or goods '- ^- which defeat or delay creditors of their just rights Stat. 13 Eliz. , .,,,,, , • , , c. 5. are utterly void. Voluntary conveyances which teiui to defeat or delay creditors are deemed to be fraudulent within the statute. {Ex parte Elliott, 2 C. D. 104 ; Ea' ■parte Chaplin, 26 C. D. 319.) But conveyances for valuable consideration will only be void where a direct design to defraud is shown to exist (see Re Penning- ton, 5 Mor. 216 ; Re Trotujhton, 21 L. T. 427), or in other words, a bond fide conveyance for valuable con- sideration will not be void against creditors. Upon the question what amount of indebtedness will raise a presumption of fraud as tending to defeat creditors in the case of voluntary settlements, it may be said that mere indebtedness will not suffice, nor yet is it necessary to prove absolute insolvency ; but the settlor must have been at the time so largely indebted as to induce the Court to believe that the intention of the settlement was to defraud the persons who at the time of making the settlement were creditors of the settlor. (Ridlerv. Ridler, 22 C. D. 74, per Hatherley, L.C.) But if the effect of the settlement is to deprive the settlor of the means of paying certain then existing debts it will be set aside, though the settlor was perfectly solvent up to the date of the settlement. (Freeman v. Pope, L. E. 5 Ch. 538.) And such settlements may be set aside not only at the instance of creditors at the time of making the settle- ment, but also by subsequent creditors if they can show that their money has been applied in paying off debts which were existing at the date of the settle- ment. (Freeman v. Pope, supra.) And subsequent creditors may also impeach a settlement which is made on the eve of the settlor entering upon some CONSTRUCTIVE FRAUD. 79 hazardous enterprise in which he contemplates debts Tit. I. -, ,.^ , . Cap. IY. and diiiiculties. (ilr 'parte liussdl, In re Butterworth, infra.) A deed, however, which is apparently voluntary, may be shown bj^ extrmsic evidence to have been made for valuable consideration, and may be supported as such against creditors. (Pott v. Todhuntcr, 2 Coll. 76.) And a deed is not necessarily void under this Act, merely because designed to prefer or defeat a particular creditor. (Alton v. Harrison, L. E. 4 Ch_ 622.) 183. A man who contemplates going into trade cannot, on the eve of doing so, take the bulk of his property out of the reach of those who may become his creditors in the trading operations. So that a voluntary settle- ment, whereby the settlor takes the bulk of his property out of the reach of his creditors, shortly before engaging in trade of a hazardous character, may be set aside in a suit on behalf of creditors who became such after the settlement. (Mackay v. Douglas, L. E. 14 Eq. 106 ; Ex 'parte Russell, In re Butteru-orth, 19 C. D. 588.) 184. Voluntary settlements are also voidable under the Bankruptcy Act, 1883, s. 47, if the settlor becomes bankrupt. 184a. 8. If a creditor, who is a party to a composition 8. Frauds on deed, has, unknown to the other creditors, obtained any benefit or security, either from the debtor or a third person, beyond what the others have received, or enters into a contract with the debtor which prevents him from being put into that situation of freedom from existing demands which may be considered as one of the chief inducements to the others to sign the deed, it is a fraud on the pohcy of the Law ; and such secret arrangements are entirely void, even as against the 80 CONSTRUCTIVE FRAUD. Tit. I. assenting debtor, or his sureties, or his friends ; and — — ^ money paid under them may be recovered back. (See St. § 378, 379 ; 2 Sp. 357—360.) 185. So an agreement between a bankrupt debtor and his trustee, by which the estate of the bankrupt is to be held in trust to pay certain annuities to the bankrupt, and to apply the surplus to the extinction of a debt to the trustee, will be rescinded, even at the instance of the bankrupt himself. (St. § 380.) 186. conveyanor' ^" Where a person takes a mortgage, or a Con- or settlement, veyance, or a settlement, with notice of the legal or with notice of •, i i • i . , another's equitable title of other persons to the same property, his own title will be postponed and made subservient to their title, or to that of a transferee from them. (St. § 395, 396 ; Le Neve v. Le Neve, 2 Wh. & Tu. 175 et seq.) Thus, if a person takes a mortgage of property, knowing that it was subject to an equitable mortgage made by deposit of the title-deeds, the notice of the equitable mortgage will raise a trust in him to the amount of the equitable mortgage. (St. § 395.) And, on the same principle, if a mortgagee, when he takes his security from a partner, knows that the firm are in possession of the property, he has constructive notice of the title of the partnership ; and his claim must be postponed to that of the other partner, as regards his share, and his right to be recouped in respect of partnership debts paid off by him, whether contracted before or after the mortgage. {Carander v. Bulteel, L. E. 9 Ch. 79.) But a legal mortgagee will not be postponed to a prior equitable mortgagee of whom he had no notice, merely because the mortgagor had contracted to execute a legal mortgage to the prior equitable mortgagee. (Garnhajn v. Skipper, 34 W E 135.) 187. CONSTRUCTIVE FRAUD. 81 Notice was formerly attended with the same Tit. I. ■' Cap. IV. consequence even where the property lay in a register county. For, the object of the Eegistration Acts being only to secure subsequent purchasers and mortgagees against prior secret conveyances and incumbrances, if a subsequent purchaser or mortgagee has notice, at the time of his purchase or mortgage, of any prior unregistered conveyance or mortgage, he will not be permitted to avail himself of his title against the prior conveyance or mortgage, any more than he would if the same were registered. (St. § 397.) But as regards land in Yorkshire this is not now the case, as by the Yorkshire Eegistries Act, 1884, 1885, registered assurances in the absence of fraud rank according to the dates of their registration without reference to notice. {Battison v. Hobson, (1896) 2 Ch. 403.) 188. Notice may be either actual or constructive, i.e., imputed by construction of law. Actual notice, to constitute a binding notice, at least where it depends on oral communication only, must be given by a person interested in the property, and in the course of the treaty. (2 Sp. 753 ; Societe Generale v. Tramioays Union, 14 Q. B. D. 424.) 189. As regards constructive or imputed notice, whatever is sufficient, or whatever for the purposes of justice is to be deemed sufficient, to put any person of ordinary prudence on inquiry, is constructive notice of everything to which that inquiry might have led. But mere want of caution, as distinguished from wilful blindness, will not impute notice to a person. {Jones V. Smith, 1 Ha. 55 ; Williams v. Williams, 17 C. D. 437 ; Nat. Prov. Bank v. Jackson, 33 C. D. 1 ; Bailey v. Barnes, (1894) 1 Ch. 25 ; Brett's L. C. 311 ; G 82 CONSTEUCTIVE FRAUD. Tit. I. and see Conv. Act, 1882, s. 3.) Thus, as a general '- '— rule, aa between .a purchaser who has completed the purchase by taking a conveyance, and the occupier of the purchased land, if a person purchases property which he knows to be in the occupation of another than the vendor, he is bound by all the equities which the party in such occupation piay have in the land ; and this rule extends not only to equities connected with the tenancy of the occupier, but to equities under collateral agreements, such as a contract for the purchase of the property by the occupier, even when the equities are subsequent to the lease under which the occupier may be in possession, because the pur- chaser ought to have inquired of the occupier as to his interest in the property. {Daniels v. Davison, 16 Ves. 249 ; 17 Ves. 433 ; 2 Wh. & Tu. 225 ; Ebbetts v. Conquest, (1895) 2 Oh. 377.) But this rule does not apply to cases where the matter still rests in contract. Thus, where the conditions of sale of a public-house stated that it was in the occupation of a tenant, and a brewer intending to use it for the sale of his beer contracted to purchase it, but afterwards discovered that it was leased to another brewer for a term of years, it was held that the purchaser was not bound to ascertain from the tenant the terms of his tenancy, and that the vendor could not enforce specific per- formance. (Caballero v. Henty, L. E. 9 Ch. 447.) But notice that an occupier holds under another person is notice of the title of the latter ; and notice that a tenant pays his rent to any one is notice of the instrument under which he acts and of all rights thereunder. (See 2 Wh. & Tu. 226.) And, as a general rule, a purchaser or other person has con- structive notice of the contents of the instrument CONSTRUCTIVE FRAUD. 88 under which he claims, or under which the party with T'^' }■ ■^ ■' Cap. IY. whom he contracts, as executor or trustee or appointee, derives his power. Under ordinary circumstances, a man cannot claim under a deed or will, and yet repudiate a knowledge of its contents. (St. § 400 ; Piklit'i- V. Rawlins, L. E. 11 Eq. 53; 7 Ch. 259.) But except in Yorkshire {ante, par. 188) the mere registration of a conveyance is not deemed construc- tive notice to subsequent purchasers, as to collateral effects ; so that the mere registration of a second mortgage will not prevent a prior mortgagee from tacking a third mortgage, when he had no actual notice of the existence of the second mortgage. (St. § 401, 402 ; 2 Sp. 763.) To constitute construc- tive notice, it is sufficient if it is brought home to the agent, solicitor, or counsel, in the same transaction (see stat. 45 & 46 Vict. c. 39, s. 3) ; unless there is a moral certainty that he would not have com- municated the fact to the principal or client (St. § 408 ; Rolland v. Hart, L. E. 6 Ch. 678 ; Maxfield v. Burton, L. E. 17 Eq. 15 ; Re Cousins, 31 C. D. 71 ; Bailey v. Barnes, (1894) 1 Ch. 25) ; or he, colluding with the person who was bound to give the notice, concealed the fact {Sharpe v. Foy, L. E. 4 Ch. Ap. 35). And where the mortgagor has at different times employed the same solicitor in effecting different incumbrances upon the same estate, and the incumbrancers have employed the mortgagor's solicitor in the several transactions, each of the puisne incumbrancers is affected with notice of the prior incumbrances. (2 Sp. 761.) But the circumstance of only one solicitor acting in a transaction does not necessarily constitute him the solicitor of both parties, so as to affect both parties G 2 84 CONSTRUCTIVE FRAUD. Tit. I. Cap. IV. 10, Fraudu- lent dealing with executors or adminis- trators. 11. Frauds under the Stat. 27 Eliz. e. 4, in the case of volun- tary deeds, as against subsequent purcha.sers or mortgagees. with notice of the facts. {Perry v. Holl, 2 D. F. & J. 38.) 190. A purchaser of a legal estate, with notice of an equitable claim, will be protected if he purchases from a prior bond fide purchaser without notice ; for otherwise the latter would not enjoy the full benefit of his own unexceptionable title. And if a purchaser who had notice sells to another, and the latter had no notice and is a bond fide purchaser for a valuable consideration, the title will not be affected with notice in his hands ; for otherwise no man would be safe in any purchase. (St. § 409, 410 ; 2 Sp. 754 : Dart. V. & P. 6th ed. 1023 ; 2 Wh. & Tu. 134.) 191. 10. Another instance of the doctrine of constructive fraud arising from notice may be seen in purchases from executors. Such purchases are ordinarily valid, notwithstanding it may be affected with some peculiar trust or equity in the hands of the executor ; for the purchaser cannot be presumed to know that the sale may not be required in order to discharge the debts of the testator, to which they are legally liable before all other claims. But if the purchaser knows that the executor is converting the estate into money for an unlawful purpose, the purchase will be set aside. (St. § 422, 423, 580, 581; Elliot v. Merryman, 2 Wh. & Tu. 896 et seq.) 192. 11. The object of the statute 27 Eliz. c. 4, was to give full protection to subsequent purchasers against mere volunteers under prior conveyances. By virtue of that Act, therefore, a prior conveyance was deemed void, as against a subsequent purchaser or mortgagee, whether with or without notice, and even after pro- ceedings to enforce such prior conveyance, if not on valuable consideration, although it might be bond CONSTRUCTIVE FRAUD. 85 fide and on good consideration, or although it Tit. i. might be expressed to be made for divers vakiable considerations, not naming them ; on the ground that the Statute, in every such case, infers fraud, and will not suffer the presumption to be rebutted. But that Act does not affect voluntary conveyances of chattels personal, which are not therefore avoided by a subsequent sale ; and as regards leaseholds,, if a person to whom they have been assigned without consideration, undertakes onerous covenants contained in the lease, he is not regarded as a volunteer. And voluntary conveyances of property, to which the Act refers, are binding as between the parties themselves. And, as between two voluntary conveyances, if the first is fraudulent, the second will prevail ; but where each is honii fide, Equity will not interfere. (St. § 425, 426, 433 ; Ellisoii v. Ellison, 2 Wh. & Tu. 835 et seq.) Nor would Equity interfere where the voluntary grantee had conveyed to a bond fide purchaser for valuable consideration, before the pond fide purchaser from the voluntary grantor acquired his title. (St. § 434.) And Equity would not give its aid to a voluntary settlor to enable him to complete a contract for sale against a purchaser. (2 Sp. 289.) And it was essential that both conveyances should be made by one and the same person. (St. § 434, a.) 193. The law that a man who had executed a voluntary settlement was enabled to sell the estate just as if he had done nothing, was highly unreasonable. And the Courts would lay hold of any circumstances consti- tuting a consideration moving from the grantee to the grantor to take a case out of the category of voluntary deeds. (V.-C. Mahns, in Eosher v. Williams, L. E. 20 Eq. 218.) 194. 86 CONSTRUCTIVE FBAUD, Tit. I. There was this exception to the general rule, in the ^'"'- ^^- case of a charity, that if a purchaser had notice of a gift to a charitable use, or purchased without notice of it from a purchaser who had notice of it, he took subject to it; though, if he had no notice, and had not purchased from a purchaser with notice, he would have the same protection as he would have against an ordinary voluntary conveyance. (2 Sp. 289.) 195. A fair voluntary settlement in favour of a wife and children was -also an exception to the rule to this extent, that almost any bond fide consideration, in addition to the meritorious consideration of the provi- sion itself, was sufficient for the purpose of supporting the settlement. Therefore, if a person whose concur- rence the parties deemed essential joined in a settlement, his concurrence was deemed a valuable consideration, although he did not substantially part with anything. (See 2 Sp. 288, 290 ; Atkinson v. Smith, 3 D. & J. 186 ; Bayspoole v. Collins, L. E. 6 Ch. 228.) 196. As to pre-nuptial settlements and post-nuptial settlements in pursuance of pre-nuptial articles, or on receipt of an additional portion, or on which the husband and wife, having interests, give up something, they are settlements for valuable consideration, and of course good against subsequent purchasers, or against prior voluntary grantees, as the case may be. (Smith's Compendium, 6th ed. par. 2395 ; In re Foster and Lister, 6 C. D. 87.) 197. A collateral relation, who is the object of an ulterior limitation in a settlement, is not a mere volunteer ; for though he may not be within the consideration of the marriage, he is within the contract ; but yet it was held that he could not prevail against a purchaser. (2 Sp. 291—298.) 198. CONSTRUCTIVE FEAUD. 87 But now all these decisions upon the Statute have Tit. I. in great measure been deprived of their relevancy and '- '— importance by the Voluntary Conveyances Act, 1893, which provides that, save as regards sales made before 29th June, 1893, no voluntary conveyance which shall have been in fact made bond fide and without any actual fraudulent intent shall henceforth be deemed fraudulent and void within the meaning of 27 Eliz. c. 4. (2 Wh. & Tu. 835 et seq.) 199. 12. In every transaction in which a person obtains, 12. i<'raudsm by voluntary donation, a benelit from another, it is voluntary necessary, if the transaction be called in question, that f jf^insTthe he should be able to establish that the person giving donors them- selves. him the benefit did so voluntarily and deliberately, and with full knowledge of what he was doing : if this is not established, the transaction will be set aside {Hitijucniii v. Baseley, 1 Wh. & Tu. 247 et seq. ; Phillqjson v. 'Kerry, 32 Beav. 628 ; Lyon v. Home, L. E. Eq. 655); but it will not be set aside if the misapprehension was merely trifling (Ogilvie v. Little- boii, (1897) W. N. 53). And where the circumstances Want of a . . power of are such that the donor ought to be advised to reserve revocation. a power of revocation, it is the duty of the solicitor to the donor, or a solicitor acting for both parties, so to advise; and in such a case, the want of such a power will in general, in the absence of such advice, be fatal to the deed. {Hall v. Hall, L. E. 8 Ch. 430 ; Henry v. Armstrong, 18 C. D. 668; James v. Couchman, 29 C. D. 212.) It is not necessary to show that the usual clauses were explained ; but any unusual clauses must be shown to have been brought to the donor's notice, explained, and understood. {PliilUps v. M^dlinfis, L. E. 7 Ch. 244, 248.) 200. 88 CONSTRUCTIVE FRAUD. 'I'lT. I. Cap. IV. 13. Fraudu- lent appoint- ments. Appointment whereby a benefit is secured to tlie appointor. Eights of creditors against a genera] appointee. 13. The donee of a power must exercise it bond Jide for the end designed ; otherwise it is considered as a fraud upon the power. But the Court will not infer that an appointment is a fraud upon a power unless there are such cogent facts that it cannot reasonably come to any other conclusion. (Henty v. Wrey, Brett's L. C. 155.) Hence if a person, having a particular power to be exercised for the benefit of others, makes an appointment in payment of a debt due to the appointee by the appointor, or upon the terms or for the purpose of securing some benefit to himself or some others not objects of the power, such an appoint- ment is fraudulent, and will be set aside in Equity : as where the donee of a power appoints a fund to one of the objects of the power, under an understanding that the latter is to lend the fund to the former, though on good security ; or that the appointee should hold the fund in trust for, or make over a part to, persons some of whom are not objects of the power. (St. § 255 ; Aleyn v. Bdrhier, 2 Wh. & Tu. 308 ; Brett's L. C. 155.) 201. Where a power is fraudulently exercised the persons injured by its exercise are entitled to be put in the same position as if it had not been exercised. (Re Deane, Bridger v. Deanr, 42 C. D. 9.) 202. Where a person exercises a general power of appoint- ment in favour of a volunteer, it will be deemed a fraud upon his creditors, who will in Equity become entitled to the money in the hands of the appointee. (St. § 169.) 203. An appointment is now valid though only a nominal share is given to one or more of the objects of the power (Illusory Appointments Act, 1 Will. IV. c. 46); and though an object of the power is altogether CONSTRUCTIVE FRAUD. 89 excluded (37 & 38 Vict. e. 37. And as to frauds on Tit. i. Cap. IV. powers see Hentji v. Wrey, Brett's L. C. 155.) 203 a. 14. If a man has induced another to enter into a i4. Putting contract with him, by representing an actual state of ^^ifch formed things as a security for the enjoyment of an interest |^^ considera- which he has himself created for valuable con- contract. sideration, he is not at liberty, by his own act, to derogate from that interest, by determining the state of things which he has so held forth as the considera- tion for entering into the contract. (Pigc/ott v. Stratton, 1 D. F. & J. 33 ; Mackenzie v. Childcrs, 43 C. D. 265 ; Hudson v. Ciipps, (1896) 1 Ch. 265.) 204. 15. A person who has entered into a purchase 15. Eesciud- contract, cannot rescind such contract, in order to in order to turn to his own benefit a flaw in the vendor's title, gawinthe'' which he has discovered from the abstract; as by title. buying up the interest of an heir-at-law whose con- cuiTence is necessary. {Miirrell v. Goodyear, 1 D. F \ J. 432.) 205. ( 90 ) TITLE II. Of Executive Equity. CHAPTER 1. OF LEGACIES AND PORTIONS. Tit. ii. LEGACIES may be divided into three classes^- specific, • general, and demonstrative. A specific legacy is a Classes of bequest of a particular article, or sum of money, or debt, as distinguished from all others of the same description, as a bequest of " my diamond ring," or "my 5001. stock," or " lOOL owing to me by A." A legacy is general when it is not a bequest of a par- ticular article or sum of money as distinguished from all others of the same kind, as a bequest of " a diamond ring," or " .500L stock," is a general legacy. A legacy is demonstrative when " it is in the nature of a general legacy, but there is a particular fund pointed out to satisfy it." Thus, a bequest of " 500L out of my New 31. per Cent. Annuities " is a demonstrative legacy. A legacy will not be construed as specific unless it is clear that it was so intended. These distinctions are of practical importance, as a specific legacy will not abate if, after payment of debts, the assets are in- sufficient for payment of all the legacies, while a general legacy will ; but if the article or sum specifically bequeathed is destroyed or alienated by the testator, LEGACIES. 91 the legatee is not entitled to compensation from the Ti'^'- H- testator's estate. And a demonstrative legacy does not abate like a general legacy, until the fund out of which it is payable is exhausted, and is not adeemed by the failure of that fund which is only regarded as the primary fund for payment. (1 Wh. & Tu. 786 et seq.) No action lies, at the Common Law, to recover Jurisdiction. legacies, unless the executor has assented to them (St. § 591) ; because all the assets vest in him, and are liable to the payment of the testator's debts, and it is the duty of the executor, before he pays, delivers over, or assents to the legacies, to see whether there will be sufficient left to pay the debts, inasmuch as a man must be just before he is permitted to be generous. But after the executor has assented to a specific legacy of chattels, the property vests immediately in the legatee, who may maintain an action at Law for the recovery thereof. A similar rule was attempted to be applied at Law to pecuniary legacies, but the applica- tion has been doubted and disapproved of (St. § 591) ; because the Common Law Courts could not impose on the parties recovering these legacies such terms as might be required ; so that, for example, a husband might have recovered a legacy given to his wife, without making any provision for her or her family. (St. § 592.) And in the case of an actual trust, express, implied, or constructive, or of a legacy charged on land, or where the Common Law Courts could not take due care of the interests of all parties, Courts of Equity asserted an exclusive jurisdiction. And even where the executor assented to the legacy, and there was no actual trust, yet they acquired jurisdiction, though merely a concurrent jurisdiction ; 92 LEGACIES. Tit. II. Cap. I. No suit in Probate Division. County Courts Act, 1888. Legacy pay- able at a future day. Specific legacy to one for life, remainder to anothei-. because the executor was considered as a kind of trustee for the legatees, which forms a universal ground of equitable interference ; and because the interposition of Equity might be required to obtain an account or distribution of assets, or some other relief or assistance which the Common Law Courts were incompetent to afford. (See St. § 593—602.) And by the Judicature Act, 1873, s. 34 (a), all causes and matters for the administration of the estates of deceased persons, the taking of accounts, the raising of portions or other charges on land, and the execution of trusts, are assigned to the Chancery Division. 206. ■ No suit for legacies or the distribution of residues can be brought in the Probate Division (20 & 21 Vict, c. 77, s. 23 ; 38 & 39 Vict. c. 77, s. 11, sub-s. 1). But, by virtue of the stat. 51 & 52 Vict. c. 43, County Courts entertain jurisdiction in personal actions for claims not exceeding 50L, and have the powers and authority of the High Court in actions by creditors, legatees, devisees, heirs-at-law, or next of kin, in which the real and personal estate does not exceed in amount or value the sum of 500L 207. In cases of legacies payable at a future day, whether contingent or otherwise, the Court may compel the executor to give security for the payment thereof ; or may order the fund to be paid into Court. (St. § 603.) But a legatee has not an absolute right to have his future legacy brought into Court, whether it is in danger or not. (Re Braithwaite, 21 C. D. 121.) 208. And where a specific legacy is given to one for life, and after his death to another, there the legatee in remainder can obtain a decree for security from the tenant for life for the due delivery over of the legacy to the remainderman, if there is some allegation and LEGACIES. 93 proof of waste, or of danger of waste. But, in the Trr. ii. ^ Oav. I. present day, if there is no such allegation and proof, the remainderman is only entitled to have an inventory of the property, so that he may be enabled to identify it, and to enforce a due delivery of it, when his right of possession accrues. (St. § 604 ; and see Wms. on Legal Eepres. 138, as to appropriation of legacies.) 209. Generally speaking, when a future period of distri- What children bution among children is contemplated by the will or ° emeu e . other instrument, all who are born during the life of the parent, or before the period of distribution, are entitled to a share. (Elphinstone's Introduction, 447.) 210. If a legacy is given for a particular purpose, the fact Legacy for a that the purpose cannot be carried into effect will not Lnnorbe " prevent the legacy from vesting in the donee. (2 Sp. ^ocomplished. 466, note (c).) So that if a bequest be to or in trust for a legatee, to apprentice him, or the like, it is an absolute gift to the legatee ; and if he dies before it is so applied, it will belong to his representatives. (2 Sp. 462.) 2U. A legacy by a parent to a child is presumed to be a what is a portion, although it be not so expressed ; because it is ^°^ '°°' the duty of a parent to provide for his child. The duty which is imposed upon the parent may be assumed by any other person who puts himself in that respect in the place of the parent ; and when it is so assumed, the same presumption will arise as in the case of a legacy by a parent. (2 Sp. 394.) 212. If portions or legacies charged on land are made Where payable on an event personal to the party to be fegadraare benefited, and he dies before that event happen, the ''^°^J^ ^^ portion or legacy is not to be raised out of the land. 94 LEGACIES. Tit. II. Cap. ]. ■Vesting of portions. Time for raising portions. But it is otherwise if the payment is postponed until the happening of an event not referable to the person of the party to be benefited, but to the circumstances of the estate out of which the portion or legacy is to be paid. (2 Sp. 396 ; Lewin, 10th ed. 473.) 213. Where a portion is secured, and no particular time is fixed for the vesting, if the child dies before the time when the portion is needed, the portion will not be raised. (2 Sp. 398.) But there is no rule of law that every power for raising portions is subject to the qualification that the portions are not raisable unless the children live to want them. {Henti/ v. Wrey, Brett's L. C. 155.) 214. As a general rule, if the period for the vesting of portions is not expressed in the instrument by which they are given, or if the instrument is ambiguous on the point, but capable of the construction, the portions of the sons will be construed to vest at twenty-one, and those of the daughters at twenty- one or marriage ; and will not be divested by the subsequent deaths of any of the children in the lifetime of the tenant for life. (Xewin on Trusts, 10th ed. 458.) 214 a. If there is a limitation to the parent for life, with a term to raise portions at twenty-one or marriage, and the interests are vested, the portions must be raised forthwith by sale or mortgage of the reversionary terms, unless there is something to indicate an intention that the portions shall not be raised until the term falls into possession. (2 Sp. 405.) 215. Where a legacy is given by a father or a person standing in loco parentis, as a provision for an infant, and no maintenance or interest is given, though the legacy be payable at a future day, the infant has -an immediate right to interest. (Lewin, 10th ed. 470.) children.'' LEGACIES. 95 For although portions provided for children sink into Tit. II. the land if the children do not live to take them, yet —- ' such portions are regarded as vested so far as to carry- interest, or allowance for maintenance, as the Court may think reasonable. (Lewin on Trusts, 10th ed. 473). But a legacy to a stranger, payable on attaining majority, carries no interest in the meantime. (Lewin on Trusts, 10th ed. 470.) 215 a. When real estate is so settled as that it must on Construction the death of a parent go to his eldest son, and pro- for "younger vision is made not by a stranger, but by that parent or by a person standing in loco parentis, whether by pre-nuptial settlement or by will, for the younger children, the Court has considered the presumption, that it was intended to make provision for all the children and not to give a double portion to any, to be so strong that it has let in all children unprovided for by the settlement or will itself, or by means which were in contemplation of the parties making the settlement or will, though not strictly "younger," and has excluded the child provided for by the family estate, even though a younger child. This latitude of construction is not extended to a legal limitation in a deed. In ordinary cases, the period of distribution, and not the period of vesting, is the time for ascer- taining who is to be excluded. (Lewin, 10th ed. 446 ; In re Bailey's Settlement, L. E. 9 Eq. 491.) But where the eldest son gets nothing from the estate, which is exhausted by the payment of the charges to which it is subject, he is nevertheless regarded as the eldest child entitled to the estate subject to the charges, and is not admitted to share in the portions provided- for the younger children. {Reid v. Hoare, 26 C. D. 363.) 216. 96 LEGACIES. Tit. II. In deciding on the validity and interpretation of purely personal legacies, Courts of Equity follow the Cap. I. onegacies.°" rules of the Civil Law, as they were recognized and acted on in the Ecclesiastical Courts; but as to the validity and interpretation of legacies charged on land, they generally follow the rules of the Common Law. (St. § 602, 608.) 217. With these few remarks we must dismiss the subject of Legacies and Portions, as a separate topic, since it is so extensive that the doctrines of Equity respecting it could not be even succinctly stated, without far transgressing the limits allotted to the present Manual. 218. ( 97 ) CHAPTEE II. OF DONATIONES MORTIS CAUSA. CouETS of Equity maintain a concurrent jurisdiction Tit. II. in all cases of this kind, where the assistance afforded ^^' ' at Law was not adequate or complete. (St. § 606 ; Jurisdiction. Ward V. Turner, 1 Wh. & Tu. 390 et seq.) 219. A donatio mortis causa is a gift of personal property Definition. made by one who apprehends that he is in peril of death. Of such a gift there are three efisentials : 1. The gift must be with a view to the donor's death. 2. There must be an express or implied intention that the gift should only take effect on the donor's decease by his existing disorder. 3. There must be a manual delivery by him, or by another person in his presence by his direction, to the donee, or some one else for the donee, of the property itself, or of the means of obtaining possession of the same, or of the writings by which the ownership thereof was created. (St. § 606, 607 a— 607 c; Brett's L. C. 38.) Thus, negotiable notes, promissory notes, payable to order. What may be though not endorsed, bills of exchange, though not g^,ch dona- ° endorsed, bank notes, bankers' deposit notes, cheques *'<'"'^- drawn by a third person payable to the donor or order, though not endorsed by the donor, policies of insurance, bonds, and mortgages, receipts for money and keys as affording the means of obtaining posses- sion of the things given, may be the subject of such donations. (St. § 607 a; Brett's L. C. 34; Re Mead, Avstin V. Mead, 15 C. D. 651 ; Clement v. Cheesman, 98 DONATIONES MOETIS CAUSA, Tit. II. Cap. II. Mixed character of snch donations. By what words created. Evidence. 27 C. D. 631.) But the delivery of a cheque drawn by the donor which was not presented before his death, was held not to be a good donatio mortis causa, because the death of the drawer is a revocation of the banker's authority to pay {Clement v. Cheesman, supra), unless paid away for valuable consideration before his death. {Rolls V. Pearce, 5 C. D. 730.) And railway stock cannot be the subject of a donatio mortis causa. {Moore v. Moore, L. E. 18 Eq. 474.) 220. A donation of this kind partakes partly of the characteristics of a gift inter vivos, and partly of those of a legacy. It differs from a legacy in these respects : 1. It takes effect at once sub mode {i.e., conditionally), and therefore does not require probate. 2. It requires no assent on the part of the executor or administrator to perfect the title of the donee. It differs from a gift inter vivos in certain respects, in which it resembles a legacy: 1. It is revocable during the donor's lifetime. 2. It might be made to the wife of the donor even before the stat. 45 & 46 Vict. c. 75, when a gift inter vivos by a man to his wife would have been void at law. 3. There must be delivery. 4. It was subject to probate duty, and is now subject to estate duty. 5. It is liable to the debts of the donor on a deficiency of assets. (St. § 606 a ; Brett's L. C. 33 ; Wms. on Bxors. 681.) 221. Words of absolute gift, if accompanied by expressions showing that the intention was that the property should be enjoyed only in the event of the death of the donor, will be suf&cient to constitute a donatio mortis causa. (2 Sp. 912.) 222. Evidence of the clearest and most unequivocal character is requisite to support a donatio mortis causa. {Cosnahan v. Grice, 15 Moo. P. C. 215.) 223. ( 9a ) CHAPTEE III. OF EXPRESS PRIVATE TRUSTS EVIDENCED BY SOME WRITTEN DOCUMENT. I. A TRUST, when used in the widest sense, is a Tit. II. beneficial interest in, or a beneficial ownership of, '- '— real or personal property, distinct from the legal of a tm^t.'"" ownership thereof. (See St. § 964.) 224. II. Trusts arising under wills fell within the II. Extent of exclusive jurisdiction of Equity. (St. § 1058.) And ov"r trusts! indeed this was the case with most matters of trust. (St. § 952.) And now, by the Judicature Act, s. 34 (3), all causes and matters relating to the execu- tion of trusts, charitable or private, are assigned to the Chancery Division of the High Court. 225. III. Trusts may be divided into three kinds : III. Division express trusts, implied trusts, and constructive trusts. The last two, however, are frequently confounded, or at least classed together, and are sometimes designated by the name of implied trusts, and sometimes by the name of constructive trusts. 226. IV. An express trust is a trust which is clearly IV. Definition expressed by the author thereof, or may fairly be trutt. ^ ^ ^ collected from a written document. 227. V. The Statute of Frauds requires all declarations v. Mode of of trust of land (which includes freehold, copyhold, jj^^g^™ or leasehold lands, tenements or hereditaments), to be evidenced by some writing signed by the party . declaring the same. But declarations of trust of H 2 100 EXPEESS PRIVATE TRUSTS. Tit. II. money, even though secured on real estate, or '- '-' of chattels personal, need not be so evidenced. (St. § 972 ; Lewin, 10th ed. 53 ; Peckham v. Taylor, 31 Beav. 250.) 228. A declaration of trust, if bond fide, is valid, though at a distance of time. And if the document refers to any other document, which shows what was meant by the parties, that is sufficient. (2 Sp. 21, 22.) And if the terms of the trust do not sufficiently appear upon the face of the instrument, evidence may be received to show the position of the party signing, and the circumstances by which he knew himself to be surrounded, and the credibility of the instrument. (Lewin, 10th ed. 57.) 229. It is not necessary that there should be any actual transfer of property to render a declaration of trust effectual. If a person declares himself to be a trustee for another of money or personal property to be recovered, whether in writing or by acts or declara- tions of a decisive and definite nature sufficiently proved, the transaction will be binding against him and his representatives. (Lewin, 10th ed. 68 ; Ellison V. Ellison, 2 Wh. & Tu. 835 ; Green v. Pater son, 32 C. D. 95.) And if a person, by writing or by word, directs his debtor to hold the money due in trust for a third person, and such direction is communicated to the debtor and the donee, an effectual trust is created in favour of the donee. (2 Sp. 53, 898 ; Paterson v. Murphy, 11 Hare, 88 ; Vanrlerbercj v. Palmer, 4 K. & J. 204.) But an ineffectual transfer or other imperfect gift cannot be supported as a declaration of trust (Re Breton, 17 C. D. 416) ; for then every imperfect instrument would be made effectual by being converted into a EXPRESS PRIVATE TRUSTS. ' ' 101 perfect trust. (Lewin, 10th ed. 75.) Therefore, a Tit. ll. mere promise to give, without valuable consideration, '- '— or a defective conveyance, gift, or assignment, with- out vahiable consideration, where the party means actually to vest the legal ownership in the donee, or in any other person as trustee for him, will not be considered as a declaration of trust. (Lewin, 10th ed. 70 ; Ellison v. Ellison, 2 Wh. & Tu. 835 ; Warriner v. Rogers, L. E. 16 Eq. 340 ; Richards v. Delbridge, L. E. 18 Eq. 11; In re Breton's Estate, 17 C. D. 416 ; Re Caplen, 45 L. J. Ch. 280.) In order to give validity to a declaration of trust, it is necessary that the person declaring the trust should have parted with his interest in the property, and put it out of his power, at least in intention. So that a delivery of a box containing a deed of gift, and of the key of which the party delivering it retains possession, will not amount to a declaration of trust of the contents. (Lewin, 10th ed. 70 ; Warriner v. Rogers, L. E. 16 Eq. 340.) And it has been held that a memorandum expressive of "an intention to leave," or a "deter- mination to appropriate," a fund to a person, and a declaration, during a last illness, of a wish that it should be given to such person, does not amount to a declaration of trust, but is a mere inoperative indica- tion of a testamentary intent not carried into effect. aie Glover, 2 .Johns. & H. 186.) 230. VI. Where uses are expressly and clearly limited, vi. By what .,, , L L^ J. ■ words a trust and the Statute of Uses will not execute, that is, maybe convert them into legal estates, trusts are thereby °'''°'*^'^- created ; for modern uses, unexecuted by the Statute, are trusts, just as all were trusts before the Statute was made. And where uses are engrafted on uses, the Statute only executes the first use ; so that where 102 EXPRESS PRIVATE TRUSTS. Tit. II. an estate is limited to A. and his heirs, to the use of -^^ '— B. and his heirs, to the use of or in trust for C. and his heirs, the Statute executes the use to B. and his heirs ; but the use to C. and his heirs is not executed by the Statute, but is a trust. Nor does the Statute execute uses or trusts where it is requisite that the trustee should continue to hold the estate in order to perform them. Nor does the Statute extend to uses or trusts of chattels real or personal ; the words of the Statute being, " when any person is seised to the use, &c., and the word " seised" being inapplic- able to personal estate. And trusts of copyholds were excluded from the operation of the Statute, because otherwise the rights of lords would have been infringed. (See St. § 970; Lewin, 10th ed. 223 ; Blphinstone's Introduction 7 ; Tyrrell's Case, Tud. Lead. Cas. Eeal Prop. 4th ed. 289.) 231. No particular form of expression is necessary to the creation of a trust. (Lewin, 10th ed. 117.) And a trust may be created, although there may be an absence of any expressions which in terms import confidence. (Pac/e v. Cox, 10 Hare, 169.) 232. There are many cases, arising under wills, in which it is very difficult to determine whether or not a trust Precatory was intended to be created. The effect of the old cases was to lay down the rule, that an expression of recommendation, confidence, hope, wish, and desire may be held to create a precatory trust, if the objects of the trust, i.e., the person intended to be benefited, and the property which is to form the subject of the trust, are certain and definite, and if, regard being had to the whole context and circumstances of the will (the subject-matter, the previous conduct of the testator, the situation of the parties, and the probable intent). trusts. EXPKESS PEIVATE TRUSTS. 103 the expressions appear to have been intended to be ^i'^- Jl- i. • mi ■■ ■ Cat. Ill imperative, ihe current of decisions, however, is now ■ changed and the Court will not allow a precatory trust to be raised unless on a consideration of all the words employed it comes to the conclusion that it was the intention to create a trust. Words of a precatory nature will be given their ordinary meaning as imply- ing a discretion unless a different sense is irresistibly forced upon them by the context. {Re Adams, 27 C. D. 394; Brett's L. C. 19.) And an expression showing a desire of the testator that something should be done will not be deemed imperative unless there are express words, or there is a necessary implication that the testator meant to exclude a discretion to perform the act or not, as the party may think fit. If, therefore, either the object or the subject is not definite ; or, if a discretion and a choice to act or not is given to the donee : or if the disposition of the pro- perty imports an absolute ownership in the donee, as where it is given without any fetter in a former part of the will ; or if the motive assigned is beneficial to the donee ; or if the words which contemplate a benefit to a third person appear to be expressive of tho motive by which the testator was actuated, rather than of a trust in favour of such person, as where a legacy is given to A. the better to enable him to maintain his children ; or where a testator bequeaths a sum to trustees upon trust to pay the income to a person for life, "nevertheless to be by him applied towards the maintenance, education, or benefit of his children," which are legal obligations ;— no valid trust will be created by words of this character. (St. § 1069 — 1070 a, and notes; 2 Sp. 64—71 ; Harding v. Glijn, 2 Wh. & Tu. 335 et seq. ; Brett's L. C. 19 ; Lambe v. 104 EXPRESS PRIVATE TRUSTS. Tit. II. Eames, L. E. 6 Ch. 597; Stead v. Mellor, 5 G. D. 225; '^^^' "^" In re Hutchinson and Tenant, 8 C. D. 540 ; In re Adams and Kensington Vestry, 24 C. D. 199 ; 27 C. D. 394 ; Mussoorie Bank v. Raynor, 7 A. C. 321 ; Re Diggles, Gregory v. Edmondson, 39 C. D. 258 ; Re Hamilton, French v. Hamilton, (1895) 2 Ch. 870 ; Re Williams, Williams v. Williams, (1897) 2 Ch. 12.) And any words by which it may be expressed, or from which it may be imphed, that the first taker may apply any part of the subject to his own use, are held to prevent the subject of the gift from being considered certain. And a vague description of the object, that is, a description by which the giver neither clearly defines the object himself nor names a distinct class out of which the first taker is to select, or which leaves it doubtful what interest the object is to take, will pre- vent the object from being certain within the meaning of the rule. (St. § 1070, note ; Breton v. Mockett, 9 C. D. 95 ; Parnall v. Parnall, 9 C. D. 96.) But it is not indis- pensable that the persons should be described by their names. More general descriptions will often amount to a sufficient designation if the context fixes the particular persons who are to take clearly and definitely. Thus, the family of A. will often be a sufficient designation of the objects; for the context may render it definite, and show that it means the heir-at-law of A., or, in other cases, the children of A., or in others, the brothers and sisters, or next of kin of A. according to the Statutes of Distribution. Generally speaking, neither the husband nor the wife will be considered as included under the word "family." Although the term "relations " is still more indefinite, the Court has executed a trust in favour of relations, by giving the property, when personal, to the next of kin according to the Statutes of Distribution, EXPRESS PRIVATE TRUSTS. 105 but per capita. (St. S 1071; '2 Sp.,73— 76.) But Tit. ii. where a testator devised his leasehold estates to his ^''^^' "^' brother A. for ever, "hoping he would continue them m the family," this did not create a trust; for the words gave a choice, and the object was not definite. (St. § 107-2; -2 Sp. 75.) And waere a testator bequeathed to his wife all the residue of his per- sonal estate, ' ' not doubting but that she will dispose of what shall be left at her death to his two grand- children ; " these words did not create a trust,, because the property would be uncertain, for it might be just what she chose to leave. (St. § 1073.) 233. VII. A valid trust may be created by words expres- vil. A devise sive of confidence that a devisee or legatee will carry may'^be"'^ out the testator's wishes, verbally communicated to ™^*'ly , ■' impressed him before the will was made. {Irvine v. Sullivan, with a L. E. 8 Eq. 673.) And if a devisee or legatee expressly or impliedly promises a testator that he will give effect to the testator's wishes for the benefit of some other person, or for some object, even though they be only verbally expressed after the will was executed, the devise or bequest is subject to a trust to carry out those wishes, where they are such as, if expressed in the will, would be enforced. (McCormick V. Grogan, L. E. 4 H. L. 82; Norris v. Frazer, L. E. 15 Eq. 318 ; O'Bnni v. Tyssen, 26 C. D. 872.) But the trust must be communicated to and accepted by the devisee or legatee in the lifetime of the testator. {Re Boi/es, 26 C. D. 531.) 234. It sometimes happens that although no valid trust Uouee GXClUQGG, is created, yet it is clear that a trust was intended ; from taking and in such instances the person to whom the gift is t™f "^s^^' '^ made is as completely excluded from_ taking bene- j^'^^J',']^'^;^^ ficially as if a valid trust were created. This is valid. 106 EXPRESS PRIVATE TRUSTS. Tit. II. the case where the words are directly or indirectly imperative, but the objects are too indefinite, or are not pointed out at all, or not in such a way that the Court can take judicial notice of them. (St. § 979 a, b ; Briggs v. Penny, 3 Mac. & G. 546; Bernard v. Minshull, Johns. 276.) In such case, if the subject of the gift be realty, the legal estate passes to the donee, but the beneficial interest will result either to the testator's heir-at-law or general residuary devisee ; and if the subject of the gift be personalty, the equitable interest will result to the next of kin or pass to the residuary legatee. (See Re Fleettvood, 15 C. D. 594 ; Re Boyes, 26 C. D. 531.) 235. vill. Trusts VIII. Express trusts are either executed or execu- exeouted and ^ executory. tory, in the sense of directory. A trust executed is a trust which is fully and finally declared by the instrument creating it — one in which the creator of the trust may be said to have been his own con- veyancer. A trust executory or directory is a trust raised either by stipulation or by a direction, in express terms or by necessary implication, to make a settlement or assurance to uses or upon trusts which are indicated in, but not finally declared by, the instrument containing such stipulation or direc- tion. Lord Glenorchy v. Bosrille, 2 Wh. & Tu. 763 et seq. ; Brett's L. C. 86.) 236. In the case of trusts executed the same construction is pat on technical words in Equity as that which is put at Law on limitations of legal estates. But in the case of trusts executory, Equity considers the apparent intent to be collected from the whole instrument, or, where the language is doubtful, the presumable intent, rather than the strict import of technical words (see 2 Sp. 131 — 135 ; Lord Glenorchy v. EXPEESS PRIVATE TRUSTS. 107 Bosvillc, 2 Wh. & Tu. 763; Sackville-West v. Vise. Tit. II. Holmesdale, L. E. 4 H. L. 543 ; Brett's L. C. 34) ; '^^''^ "^- but this must be regarded as subject to the rule that deeds are construed more strictly than wills. {Cooper V. Kynock, L. K. 9 Ch. 898.) Thus, where the legal estate is limited to a person for life, remainder to the heirs male of his body, he takes an estate tail male under the rule in Shelley's Case. And where, in a will or voluntary deed, there is a mere direction to settle an estate on a person for life, to be followed by a remainder to the heirs of his body, then since there is nothing of an inchoate or executory nature in the instrument itself, and the words are formal and explicit, and there is nothing in the instrument to show or afford a presumption that the words were not intended to be used in their technical sense, the mere reference to a further instrument does not render the trust executory, and therefore the limitations, as regards the rule in Shelley's Case, receive the same construction as similar words used in limiting legal estates. But if marriage articles express that an estate is to be settled on the husband for life, with remainde;r to the heirs of his body, there the inchoate nature of the instrument, combined with the allusion to a further instrument, renders the trust executory ; and as the issue in this case are purchasers for valuable consideration, so Equity will construe the articles as giving an estate for life only to the husband, with a remainder in tail to the children. (2 Sp. 136; St. § 984; Brett's L. C. 36.) 237. IX. Trusts in real property, which are exclusively IX. Trusts cognizable in Equity, are generally governed by the by same rules same rules as legal estates. (St. § 974.) But— ^^\|fgf i08 EXPRESS PRIVATE TRUSTS. Tit. II. Cap. hi. Exceptions. X. Trusts of terms. 1. The construction put upon trusts executory, as we have before seen, differs, in some respects, from that which prevails in regard to legal estates and trusts executed. 2. Before the late Dower Act, trust estates were held not subject to dower ; because, before the question was tried, it was the general opinion that, by the creation of a trust estate, dower was prevented from attaching ; and it is a maxim that communis ■error facit jus ; and to have held that trust estates were subject to dower, would have affected a large proportion of the estates in the kingdom. (1 Sp. 501.) 3. An equitable estate, being incapable of livery of seisin and of every form of conveyance which operates by the Statute of Uses, it was held that a mere declaration o£ trust, if in writing, signed by the party bound or his agent lawfully authorized, was sufficient to transfer such an estate ; except that a fine or recovery was required, where the same would have been necessary if the estate had been a legal estate. (See St. § 974, 974 a, and notes, and § 975 ; 1 Sp. 497, 500, 506, 877 ; and as to executory trusts, see supra, pars. 30, 236, 237.) In practice, however, trust estates have been usually conveyed in the same manner as legal estates. (1 Sp. 506.) 4. Trusts were independent of the rules of the Common Law founded on tenure ; so that a life interest in a trust estate was not forfeited on any alienation by the tenant for life. (1 Sp. 500, 505.) 238. X. Long terms for years are often created for securing the repayment of money lent on mortgage, and for other purposes. Prior to the statute 8 & 9 Vict. c. 112, such terms did not determine on the mere performance of the trusts for which they were created, unless there was a special provision to that EXPBESS PRIVATE TRUSTS. lOft effect ; but the legal interest remained in the trustee, Tit. ii. after they were performed ; and at Law the term con- '■ ^ tinued to be a term in gross, as distinct and separate from the inheritance as it was at first. But in Equity the term might become attendant on the inheritance by express declaration, so as to follow the descent to the heir, and all the alienations made of the inheritance, or of any particular estate or interest carved out of it by deed or by will or by act of Law, and so as not to be devis- able, before the late Wills Act, without the formalitiea requisite for devising real estate, and, in short, so as to be governed in Equity by the same rules generally as the inheritance. Again, a satisfied term might become attendant on the inheritance, with the same effect, by mere implication ; for, as Equity always considers who has the right to the land in conscience, if the term was. not subject to any ulterior limitation to which the inheritance was not subject, and the owner of the in- heritance was entitled to the whole trust of the term, it was attendant on the inheritance by implication. 239.. In consequence of satisfied terms being deemed ' terms in gross at Law, but capable of being ren- dered completely subservient to the ownership of the inheritance in Equity, they were often made of the greatest use in protecting the inheritance from mesne estates, charges and incumbrances. Thus, if a bond fide purchaser for valuable consideration, mortgagee, lessee, or other incumbrancer, took a conveyance, lease, or assignment, defective by reason of some estate, charge, or incumbrance, subsequent to the creation of a long-satisfied term for years and prior to his own conveyance, lease, or assignment, and of which he had no notice at the time of his contract, he might effectually protect himself against 110 EXPRESS PRIVATE TRUSTS. Tit. II. Cap. III. XI. Trusts created without cestui que trust's know- ledge. XII. "What trusts will he enforced. all persons claiming under such prior estate, charge, or incumbrance, by taking an assignment of the satisfied term to a trustee for himself, or by taking an assignment thereof to himself where he took the conveyance, lease, or assignment of the estate or interest to be protected in the name of a trustee; for he might use the legal estate in such satisfied term to defend his possession during the continuance of the term, or, if he had lost the possession, to recover it. (See St. § 998—1002, and notes.) 240. By the stat. 8 & 9 Vict. c. 112, s. 1, every satisfied term which was attendant on the 31st of December, 1845, was on that day to cease, except that, if attendant by express declaration, it was to afford the same protection as it would have afforded if it had continued to subsist, but had not been assigned or dealt with after that day. And by s. 2, every term which, after the 31st of December, 1845, should become satisfied and attendant, was to cease imme- diately upon the same becoming so attendant. 241. An attendant term might at any time be disannexed by the proper acts of the parties in interest, and be turned into a term in gross. (St. § 1002.) 242. It may here be noticed that long terms may now, under the Conveyancing Act, 1881, s. 65, be enlarged into the fee simple where there is no trust or equity of redemption affecting the term. 243. XI. A person in whose favour a trust has been created may affirm it, and enforce the performance thereof, although it was created without his know- ledge, if at least it is not revoked by the author of the trust before it is so affirmed. (St. § 972.) 244. XII. Equity will enforce a trust where it is executed, or where it is raised by will, even though it is a mere EXPEESS PRIVATE TRUSTS. HI voluntary trust ; but it will not enforce an executory Tn-. ii. trust raised by a covenant or agreement, unless it is "'"''• "^' supported by a valuable consideration. (See cases referred to, St. § 793 a, b, c; Ellison v. Ellison, 2 Wh. & Tu. 835 et seg. ,- In re Flavell, 25 C. D. 89. And as to the distinction between executory and executed, see swpra, pars. 236, 237.) 245. XIII. Marriage articles will be specifically executed xiii. Exeou- on the application of any person within the scope of carriage the consideration of the marriage, or of those claiming articles. under any such person. But they will not be speci- fically executed on the application of persons who are volunteers, even of a wife or child by a subsequent marriage; although where the proceeding is' by persons who are within the scope of the considera- tion, or by those claiming under them, specific execution will be decreed as well in favour of the mere volunteers as of the plaintiff, as the Courts either execute them in toto or not at all. (St. § 986, 987 ; 2 Sp. 287.) 246. XIV. Putting the bankrupt and insolvent laws out xiv. Assign of the case, a person is at liberty to assign all his benefit of property for the benefit of his creditors, though it - may be for the purpose of defeating some particular creditor of his execution in an action commenced by him against the debtor. For a debtor in securing the equal distribution of his effects among all his creditors, is only performing a moral duty. But such an assignment must be free from fraud and misrepresentation. (2 Sp. 350, 352 ; Worseley v. De Mattes, Tudor's Lead. Cas. Merc. Law, 3rd ed. 755 ; Harman v. Fishar, Tudor's Lead. Cas. Merc. Law, 3rd ed. 773.) 247. Preferences and priorities of particular creditors creditors. 112 EXPRESS PRIVATE TRUSTS. Tit. II. are ordinarily valid in general assignments made by '- ' debtors in discharge of their debts, except under the laws of bankruptcy and insolvency. (St. § 1036 ; 2 Sp. 350 — 352.) But a debtor cannot vest his property in one of his creditors for the purpose of hindering and delaying his other creditors and compelling them to come to terms ; for sach a deed is fraudulent and void. (Smith v. Hiorst, 10 Hare, 30.) 248. Assignees under general assignments take only such rights as the assignor or debtor had at the time of the general assignment ; and consequently a prior special assignee will hold against them, without giving notice of his assignment. (St. § 1038.) 249> In order to entitle the creditors named in a general assignment for the benefit of creditors to take under it, it is not necessary that they should be technical parties thereto, unless they are named in the assign- ment as parties, and are expressly required to execute before they can take under its provisions. It is- sufficient if they have notice of the trust in their favour, and assent to it ; and if there is no stipulation for a release, or any other condition which may render it not for their benefit, their assent will be presumed till the contrary appears. (St. § 1036 a.. See Biron v. Motint, 24 Beav. 642.) Until, however, the creditors have assented to the trust, and given notice thereof to the assignee, an assignment of this- kind, in which the creditors are not parties, and have not executed, is deemed revocable by the debtor, in Equity as well as at law, whether the creditors are individually named or not. (St. § 1036 b ; Steele v. Murphy, 3 Moo. P. C. 445.) 250. Where creditors have acted under a deed of com- position and treated it as valid, the Court will also EXPRESS PRIVATE TRUSTS. 113 act under it and treat it as valid as against the Tit. ii. assignor, though the creditors have not executed it — — '— withm the time prescribed. (2 Sp. 354.) 251. Where there is an assignment to two trustees, and one assents and the other dissents, the property passes to the assenting trustee. (2 Sp. 351.) 252. But now a debtor commits an act of bankruptcy if Bankruptcy '^ •' Act, 1883. in England or elsewhere he makes (1) a conveyance or j^^t of bank- assignment of his property to a trustee or trustees for ''"Pt^y- the benefit of his creditors generally ; or (2) a fraudulent conveyance, gift, delivery, or transfer of his property, or any part thereof ; or (3) any conveyance or transfer of his property, or any part thereof, that would under that or any other Act be void as a fraudulent pre- ference if he were adjudged bankrupt. But a creditor must present a petition for adjudication within three months after the act of bankruptcy. (Stat. 46 & 47 Vict. c. 52, ss. 4, 6.) The triistees of a creditor's deed must therefore remember that the deed must be regis- tered, and whether registered or not may be upset by an adjudication of bankruptcy within three months from the date of the deed, if any creditor or creditors have not acquiesced in the deed, and can prove a debt of the requisite amount to obtain an adjudication of bankruptcy. (Re Batten, 22 Q. B. D. 685.) 252 a. XV. In those cases where a consignment or remit- XV. Re- V0C9.dJ6116SS tance is made, with orders to pay over the proceeds of a eonsign- to a third person, the appropriation is not absolute, re^^ttance. but revocable at any time before the third person has assented thereto, and notice of the same has been given to the mandatory ; for it amounts to no more than a mandate from a principal to his agent. And it will be revoked by any disposition inconsistent with the execution of the mandate. But after such 114 EXPRESS PRIVATE TRUSTS. Tit. II. assent and notice, the third person may avail himself '- — ' of it in Equity, without any reference to the assent or dissent of the mandatory ; for his receipt of the property binds him to follow the order of his principal. (St. § 1045, 1046.) 253. Revocableness Where a person executes and delivers a deed of of a convey- ■ i i , . i , anoe of equit- Conveyance of equitable property to a vomnteer, or or a deciara*-^' where the legal estate is transferred and a trust of it tion of trust 111 [g declared in favour of a volunteer, and there is favour of a volunteer. nothing upon the face of the transaction or from con- temporaneous evidence to show that it was intended to be revocable, or that a power of revocation ought to have been inserted, it cannot be revoked or avoided in any way. And even if the donor should procure a retransfer of stock by the trustees, and where it is in writing, should cancel the instrument and by will make a provision for the same cesUd que trust, the settlement will be binding ; and unless the subsequent provision is expressed to be substitutionary, the cestui que trust, if the gift is not by way of portion, will take both ; but they will have their election, if it is expressed to be in substitution. And now by the Volun- tary Conveyances Act, 1893, a voluntary settlement of land is in the same position as a voluntary settle- ment of personal estate, and cannot be avoided by a subsequent purchaser. (2 Sp. 882, 883 ; see supra, par. 193, 194.) 254. The keeping in the donor's possession a deed so executed as to pass the estate is not of itself sufficient to enable the donor to revoke it by cancellation or by will ; for, the estate having passed, it would require the active interference of a Court to revest the estate; and it is no ground for such interference that the act was foolishly or inconsiderately done. (Lewin, 76.) 255. EXPRESS PRIVATE TRUSTS. 115 XA'I. Where a will contains a direction or power to Tit. ii. raise money out of the rents and profits of an estate XVI. Effect to pay debts or portions, &c., and the money must be ofadirectSu raised and paid without delay, those words have been so o'.P^wer to raise money construed as to give a power to raise by sale or mort- out of rents gage, unless restrained by other words. (St. § 1064, 1064 a ; 2 Sp. 316.) 256. XYII. Prior to the enactments which will be XVII. Ob- presently mentioned, where real property was devised purchaser to be sold for, or was charged with, the payment of ^° ^f^ *°ion'^of definite and ascertained sums only, and such payment the purchase- j was to take place at the time when the required amount (jeneral rules, was to be raised, the purchaser of such property was bound to see that the purchase-money was applied in the fulfilment of the trust, unless expressly exempted by a provision by the author of the trust. But where the property sold constituted the natural and primary fund for the payment of debts generally, or was expressly charged with, or conveyed or devised for, the payment of debts generally, and therefore, in order to ascertain the sums to th& payment o'f which the property was liable, it would be necessary for the purchaser to institute proceedings in Equity, or where the purchaser, if bound to see to the application of the money, would be involved in a trust of long con- tinuance : then, the purchaser, unless he had notice that there were no debts, or notice of fraud, was not bound to see to the application of the purchase- money. (See St. § 1126—1128, 1130—1134 ; Elliot v. Merryman, 2 Wh. & Tu. 896 et seq.) 257. In illustration of these rules, it may be observed Specitir . . „ pouit.s m that, as the personal estate, whether consistmg ot illustration of chattels personal or of chattels real, is liable at *.I;f,f,7to the the Common Law, and constitutes the natural and pJJ|j«^^^^^^;^'« I 2 116 EXPRESS PRIVATE TRUSTS. Tit. II. primary fund for the payment of the debts of the '■ '— testator generally, the purchaser of the whole or of any part of it, without notice that there were no debts, or that the sale was not made for payment of debts, was not bound to see that the purchase- money was applied by the executors in the discharge of the debts (St. § 1126, 1128 ; 2 Sp. 372, 377) ; even if the testator had directed his real estate to be sold for payment of debts, whether specified or not, and had made a specific bequest of a part of his personal estate for a particular purpose, or to a particular person, although such specific bequest was known to the purchaser, provided he had no reason to suspect any fraudulent or unauthorized purpose ; for, otherwise, before a person could become a purchaser of personal estate specifically bequeathed, it would be indispensable for him to come into Court to have an account taken of the assets of the testator, and of the debts due from him, so as to ascertain whether it was necessary for the executor to sell. (St. § 11,29 ; • 2 Sp. 375—877.) 258. The same rule, for the same reason, applied to real estate devised for or charged with the payment of debts generally (St. § 1130 ; 2 Sp. 380, 382) ; even though the trust was only to sell, or was a charge for, so much as the personal estate was deficient to pay the debts, and even though a specific part of the real estate was devised for a particular purpose or trust, if the whole real estate was charged with the payment of debts generally by the will. If, however, the trustee has only a power to sell, and not an estate devised to him, then, unless the personal estate is deficient, the power to sell does not arise. (St. § 1181 ; 2 Sp. 382.) 259. EXPRESS PRIVATE TRUSTS. 117 Where, in cases of real estate, the trust was for the Tit. Ii. payment of legacies or annuities only, or of specified ^ '— or scheduled debts alone, or of both, but not of debts generally, the rule was different ; for they are ascer- tained, and the purchaser must therefore see that the money is duly applied. But where the devise was for payment of debts generally, and also for the payment of legacies or annuities, the purchaser was not bound to see to the application of the purchase-money ; because, to hold him liable to see the legacies or annuities paid, would in fact have involved him in the necessity of taking an account of all the debts and assets. (St. § 1132 ; 2 Sp. 379, 382, 386, 389.) 260. And the purchaser was not bound to see to the application of the purchase-money, where the specific objects of the trust were not pointed out. (2 Sp. 381.) 261. The rule in all these cases that the purchaser was not bound to look to the application of the purchase- money was subject to an obvious exception, that if the purchaser or mortgagee was knowingly a party to any breach of trust by the sale or mortgage it afforded him no protection. (St. § 1131 a.) 262. In determining as to the liability of the purchaser, the Court looked to the deed or will alone, and not to the circumstances of the testator or to subsequent events ; so that where a testator created a trust or charge for payment of debts generally and legacies, and there were no debts at the death of the testator, or the debts were paid after the death of the testator, and the legacies only were left as a charge, that circumstance alone did not prevent the application of the rule. (2 Sp. 383; Stroiighill v. A7istey, 1 D. M. & G. 653.) 263. 118 EXPRESS PRIVATE TRUSTS. Tit. II. Where the time appointed by the devise for the sale '- '— of real estate had arrived, and the persons entitled to the money were infants or unborn, there the purchaser was not bound to see to the application of the purchase- money, because that might have involved him in a trust of long continuance. But if an estate was charged with a sum of money payable to an infant at his majority, the purchaser was bound to see the money duly paid on his coming of age ; for the estate remained charge- able with it in his hands. (St. § 1133 ; 2 Sp. 887.) 264. Where the money was to be applied by the trustees to purposes which required, on their part, time, delay, and discretion, it seems the purchaser was not bound to see to the application of the purchase-money. (St. § 1134 ; 2 Sp. 387.) 265, By the stat. 22 & 23 Vict. c. 35, s. 23, it was enacted that the bond fide payment to and the receipt of any person to whom any purchase or mortgage money should be payable upon any express or implied trust shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security. And by Lord Cranworth's Act (23 & 24 Vict. c. 145), s. 12, it was also enacted that receipts for purchase-money, given by the persons exercising the power of sale thereby conferred on mortgagees should be sufficient discharges to the purchaser, who should not be bound to see to the application of the purchase-money. And by s. 29 it was also enacted that the receipts of trustees, for any money payable to them by reason or in the exercise of any trusts or powers reposed or vested in them, shall be sufficient discharges for the money EXPKESS PRIVATE TRUSTS. ]19 therein expressed to be received, and should Tit. ii. effectually exonerate the persons paying such money ^'^'''' "^■-- from seeing to the application thereof, or from being answerable for any loss or misapplication thereof. 266. The Conveyancing Act, 1881 (44 & 45 Vict. c. 41) The Con- repeals the 12th and 29th sections of the stat. 23 & 24 IXTssi. Vict. c. 145. And by the Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 20, repealmg a like provision contained in the Conveyancing Act, 1881, it is enacted that the " receipt in writing of any trustees or trustee for any money, securities, or other personal property or effects payable, transferable, or deliverable to them or him under any trust or power shall be a sufficient discharge for the same, and shall effectually exonerate the person, paying, transferring, or delivering the same from seeing to the application or being answerable for any loss or misapplication thereof." This section applies to trusts created either before or after the commencement of the Act. The Settled Land Act, Tlie Settled Land Act, 1882 (45 & 46 Vict. c. 38), which came into operation is82. on the 1st of .January, 1883, enacts by s. 40, that " the receipt in writing of the trustees of a settlement, or where one trustee is. empowered to act, of one trustee, or the personal representatives or representative of the last surviving or continuing trustee, for any money or securities paid or transferred to the trustees, trustee, representatives, or representative, as the case may be, effectually discharges the payer or transferor therefrom, and from being bound to see to the applica- tion or being answerable for any loss or misapplication thereof, and in the case of a mortgagee or other person advancing money, from being concerned to see that any money advanced by him is wanted for 120 EXPRESS PRIVATE TRUSTS. Tit. II. any purpose of this Act, or that no more than is Cap. III. -, . . 1 , ««„ wanted is raised. 266 a. The above paragraphs (257 et seq.) must now also be read and considered with reference to the Land Transfer Act, 1897, which makes freehold real estate assets for payment of debts. It is conceived, there- fore, that in the case of persons dying after the Act their real estate will by law be charged with the pay- ment of debts. (With respect to the power of trustees to authorize solicitors to receive and give valid dis- charges for money, by permitting the solicitors to have the custody of and to produce deeds containing receipts for such money, see infra, par. 357 a.) 266 b. XVIII. When XVIII. Apart from the Trustee Act, 1888, and as will bar a long as the relation of trustee and cestui que trnnt, 7n!st ^"^ under an express trust, is acknowledged to exist, lapse of time can constitute no bar to an account or other proper relief for the cestui que trust. (Williams on Account, 199 ; Thomson v. Eastu'ood, 2 App. Cas. 215.) And it may be observed, that where a sum of money is bequeathed to an executor, upon trust to be laid out on certain trusts, as soon as it is severed from the bulk of the estate, it ceases to be a mere legacy, and the bar of the Statute of Limitations does not apply : for it is then a case of express trust, which is specially excepted. (2 Sp. 62 ; Thomson v. Eastwood, 2 App. Cas. 215.) But when this relation of trustee and cestui que trust is no longer admitted to exist, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties or other circumstances render it unjust to give relief. Equity will refuse relief, upon the ground of its inability to do complete justice. (St. § 529 ; Rochc- foucaidd V. Bomtead, (1897) 1 Ch. 196.) 267. EXPRESS PRIVATE TRUSTS. 121 By the Judicature Act, 1873 (36 & 37 Vict. c. 66), Tit. ii. Cap. III. s. 25 (2), " No claim of a cestui que trust against his -'— trustee for any property held on an express trust, or Limitation as in respect of any breach of such trust, shall be held ™sar. II. VI. II. Payment of legatees nv distributei's before creditors. III. Covenant or agreement to convey or transfer property, or pay money. Nature of, and reason.s for, the vendor'.s lien. purchaser of the property, he will be entitled to a deduction from the purchase-money in respect of expenditure in lasting improvements and a fortiori in the nature of salvage. {Roivley v. Ginnever, (1897) 2 Ch. 503; Re Montague, (1897) 2 Ch. 8.) As to improvements by a tenant for life of settled land, see 45 & 46 Vict. c. 38, ss. 25—30. 323. II. So, where executors, by mistake, but honCi fide and without fault, have paid legatees or distributees before a due discharge of all the debts, the latter are treated as trustees for the purpose of paying the debts ; because they are not entitled to anything except the surplus of the assets, after all the debts are paid. (St. § 1251.) 324. III. Where a person is under a covenant or agree- ment, for valuable consideration, to convey or transfer property, or to pay money, to or for the use or benefit of another, a constructive trust arises in favour of the latter against the former and his representatives, and those claiming under him as volunteers or with notice of the covenant or agreement ; because, where things are covenanted or agreed to be done, Equity treats them, for many purposes, as if they were done. (See St. § 1212, 1231.) 325. Hence, where the Court is satisfied by parol evidence that a marriage took place on the faith of representa- tions as to a settlement, it will direct a settlement in accordance with those representations, as against the person making them or his devisees. {Prole v. Soady, 2 Giff. 1.) 326. And so a constructive trust arises when the purchase- money of an estate is not paid. In such a case the vendor has a lien on the property in Equity ; that is, a hold upon it for the satisfaction of the purchase- CONSTRUCTIVE TRUSTS. 147 monej- : and to the extent of the lien, the purchaser Tn-. ii. becomes a trustee for the vendor. (See St. § 1215, — ~ — ~ 1217—1220 ; Mackreth v. Symmons, 2 Wh. & Tu. 926 et seq.) And although, in some cases, it is reasonable to presume a tacit consent or agreement that the vendor should have such a Ken, yet the lien is not strictly attributable to such a consent or agreement, but is founded on the most obvious principles of natural justice. (See St. § 1219, 1220.) 327. In general, the vendor has such a lien ; and the AVheie it burden of proof is on the purchaser, to establish that exists.^ ' in the particular case it has been intentionally dis- placed or waived by the consent of the vendor. (St. § 1224.) Though, on the face of the convey- ance, the consideration is expressed to be paid, and even if a receipt is indorsed on the back of the con- veyance, and yet the money has not actually been paid, the vendor has a lien. (St. § 1225 ; Mackreth v. Symmons, 2 Wh. & Tu. 926 ; Conv. Act, 1881, s. 55.) And if a security has been taken for the money, the burden of the proof has been held to lie on the purchaser, to show that the vendor agreed to rest on the security and to discharge the land ; or, at most, the taking of a security has been deemed to be no more than a pre- sumption, under some circumstances, of an intentional waiver of the lien, and not as conclusive of the waiver. (St. ;i 1226.) 328. Where the vendor has a lien against the vendee, it Contiimance continues, notwithstanding any devolution or transfer of the estate, except where it is extinguished by the countervailing Equity of a bond fide purchaser for valuable consideration without notice, when clothed with the legal title. (St. § 1228.) 329. a ■ . , ° \ .) ' ^ ^ Against wliom So that it exists against the vendee and his heir, it exists. l2 148 CONSTRUCTIVE TRUSTS. ^^■^- ^- and against volunteers claiming under him ; against purchasers under him with notice that he had not paid the purchase-money ; against purchasers even without notice, having an equitable title only ; against assignees claiming by a general assignment under the bankrupt and insolvent laws ; against assignees claiming under a general assignment made by a failing debtor for the benefit of creditors ; and against a judgment creditor of the vendee, at least before an actual conveyance of the estate has been made to him. (See St. § 1228.) For, in each of these cases (except that of the bond fide purchaser for valuable considera- tion without notice, who has only an equitable title), the party in possession has obviously no more equity against the lien of the vendor than the vendee himself had, but clearly stands in the same situation and subject to the same equity. And although the bond fide purchaser without notice, who has only an equitable title, has an equity quite distinct from that of his vendor, the first vendee, yet the equity of such purchaser to retain what he has paid for is . only equal to that of the first vendor to be paid for that which he has parted with ; and when the equities are equal, and neither of the parties has the support of the legal title, the maxim applies. Qui -prior est tempore, potior est jure. But this is only the case, and time is only material, where the equities are in all other respects equal {ante, par. 50) ; and con- sequently an equitable mortgagee may be entitled to payment in priority to the unpaid vendor on the ground that the latter has lost his priority by his own negligence in having delivered to the purchaser a con- veyance in which he declared by the receipt indorsed that the whole purchase-money had been paid. {Rice CONSTRUCTIVE TRUSTS. 149 V. Rice, 2 Drew. 73 ; (/. Lloijd's Bank v. Bullock Tit. II. (1896) 2 Ch. 192.) 330. ^^''^ ^^- But the lien will not prevail against a bond fide purchaser for valuable consideration from the vendee, where such purchaser has paid his purchase-money, and taken a conveyance of the legal estate, and had no notice, at the time of paying his money, that such vendee had not paid the purchase-money (St. § 1228, 1229; and see Conveyancing Act, 1881, s. 55); because, having given a valuable consideration for the estate, without notice, he has as much equity to retain what he has so paid for as the original vendor has to be paid for that which he has parted with ; and, having this equal equity, the Court will not take from him the legal title with which he has clothed himself, but will act upon the maxim, that where the equities are equal, the law shall prevail ; so that in this case the vendor's lien is virtually extinguished by the countervailing equity of the purchaser from the vendee. But where a vendee has sold the estate to a bond fide purchaser without notice, if the sub-purchase- money or part of it has not been paid, the original vendor may proceed against the estate for his lien to the extent of the unpaid sub-purchase-money, or against the sub-purchase-money in the hands of such sub-purchaser (St. § 1232 ; Ex parte Goldiiifi, 13 C. J). 628), for then the sub-purchaser, getting notice of the original vendor's lien, before the sub-purchaser pays the unpaid sub-purchase-money, becomes a pur- chaser with notice to the extent of the unpaid sub- purchase-money. But the vendor's lien may, as we have seen, be postponed to subsequent claims on account of negligence by the vendor. And a vendee who has paid purchase-money prematurely has a 150 CONSTRUCTIVE TRUSTS. Tit. Cap. 11. VI. IV. Property acquired, or profits made by persons in a fiduciary relation. similar claim against the estate in the hands of the vendor. (Watson v. Rose, 10 H. L. C. 672.) 331. Where the vendee has sold only a part of it, the part .retained by him is primarily chargeable with the lien. Where he has sold different parts to different persons, the lien is to be borne rateably between them. (St. §1232 a.) 332. IV. If a trustee, or other person standing in a fiduciary relation, acquires property or makes a profit by means of transactions within the scope of his agency or authority, or if a person employs another's property in any trade or speculation, there will be a constructive trust, as to the property so acquired or the profits so made, for the benefit of the cestui que trust, principal, owner, or other party standing in the opposite relation. (See St. § 1211, 1211a, 1261; Fox V. Mackreth, 1 Wh. & Tu. 141 et seq. ; Robinson v. Pett, 2 Wh. & Tu. 606 et seq.) So that, if a trustee should purchase a lien or mortgage on a trust estate at a discount, he would not be allowed the benefit of the difference, but the purchase would be a trust for the cestui que trust. So if a trustee or a partner should renew a lease of the trust or partnership estate, he would be a trustee of such renewed interest for his cestui que trust or co-partner, even though the lessor may have refused to grant a renewal to the cestui que trust or co-partner. (St. § 2211 ; Keech v. Sandford, 2 Wh. & Tu. 693 et seq. ; Clegg v. Edmondson, 8 D. M. & Gr. 787.) So if an agent, who is employed to purchase for another, purchases in his own name or on his own account, he will be held to be a trustee for the principal, at the option of the latter. (St. § 1211 a.) And the same principle applies as between a company and one of the directors. CONSTRUCTIVE TRUSTS. 151 {Imperial Mercantile Credit Association v. Coleman, Tn. ii. L. E. 6 H. L. 189.) 333. ^-"' ^^^- V. Upon analogous principles, if a trustee or exe- v. Keuowalof cutor or a mortgagee, or a person having a limited pe^on having interest in leasehold property, renews the term on his ^ limited own account, he will be held to be a trustee for all '" ^'^^^ ' ' the persons interested in the old lease. (1 Sp. 512; 2 Sp. 299, 302, 303 ; Lewin, 10th ed. 192 ; Bobbins,' 164.) 334. The person so converted into a trustee of a renewed lease is entitled to the costs and expenses of renewal, with interest, and to compensation for repairing, build- ing, and lasting improvement ; and he may retain the renewed lease to secure the payment. (2 Sp. 304 ; Lewin, 10th ed. 196.) 335. VI. In general, whenever property of one kind has ^'I. Wrongful been wrongfully converted into property of another ai'^nation'oT kind, by a trustee or agent, the right in rem of the *™,^* l""" principal or cestui que trust ceases, if the means of ascertainment fail; which, of course, is the case when the subject-matter is turned into money, and mixed and confounded in a general mass of property of the same description. But if the property which has been so substituted can be ascertained to be such, it will be liable to the rights of the cestui que trust or principal to which the property converted was subject. (See St. § 1158, 1259, 1260 ; Robinson v. Pett, 2 Wh. & Tu. 606 et seq.) 336. But in cases of this sort, the cestui que trust or beneficiary is not at all bound by the act of the other party. He has an option to insist on having that into which the trust property has been converted, or to disclaim any title thereto, and resort to any other remedy to which he is entitled, either in rem or in 152 CONSTRUCTIVE TRUSTS. Tit. II. personam. (St. § 1262.) But he cannot insist on repugnant claims : so that, in the case of a sale of stock by a trustee or executor, in violation of his trust, the party beneficially entitled may either oblige the trustee or executor to replace the stock, or he may affirm his conduct and take the sum at which he has sold it, with interest and any further profits he may have made by the sale; but the party beneficially entitled cannot insist on having the stock replaced, and having the interest instead of the dividends, or on taking the money, and having the dividends as if the stock had remained. (St. § 1263.) 337. If, however, the trustee conveys the trust property to a bond fide purchaser for valuable consideration, who has paid his purchase-money, and had no notice of the trust at the time of paying the same, the trust is extinguished. But if the trustee should afterwards re-purchase or otherwise become entitled to the same property, the trust would be revived by construction of Equity. (See St. § 1264, and note ; Basset v. Nosworthy, 2 Wh. & Tu. ISO et scq.) And if a trustee conveys or assigns the trust property for valuable consideration, in violation of the trust, to a person who is aware of that circumstance, or conveys or assigns it without valuable consideration, even to a person who has no notice, such person will be treated as a trustee for the cestui que trust. (St. § 1257.) 338. vil. Tiustof VII. Where a person has a mortgage in fee which estatf.^^''' he has not foreclosed, the legal estate in the mortgaged premises formerly descended to his heir ; but by con- struction of Equity he is trustee for the personal representatives, and through them for the persons entitled to the personal estate of the mortgagee. CONSTRUCTIVE TRUSTS. 153 (2 Sp. 296 ; Thornhoronqh v. Baker, 2 Wh. & Tu. 1 Tir. II. . \ r.«« ■ Cap. VI. et seq.) 339. But in case of the death after the 31st of Conveyancing December, 1881, of a sole mortgagee of an estate of '^ ' inheritance, the legal estate in the mortgaged property vests, notwithstanding any testamentary disposition, in his personal representatives, like a chattel real ; and his personal representatives for the time being are to be deemed in law his heirs and assigns within the meaning of all trusts and powers (44 & 45 Vict, c. 41, s. 30) ; except with respect to copyholds, which are expressly excluded from this provision by the Copyhold Act, 1894, s. 88. 339 a. VIII. Executors and administrators are for most MIL Execu- purposes considered in Equity as trustees, and are held trustees. liable for all breaches of the ordinary trusts of their office. (WiUiams on Exors., 9th ed. 1876.) 340. ( 154 ) Tit. 11. Cap. VII. I. Who may be trustees. II. Accept- ance of office. CHAPTEE VII. OP TRUSTEES AND OTHERS STANDING IN A FIDUCIARY RELATION. I. Generally speaking, all persons, including femes covert, infants, aliens and bankrupts, are capable of being trustees, and a trustee does not cease to be such on becoming a convict. (Lewin, 28 et seq. ; Trustee Act, 1893, s. 48.) 341. But though all persons are capable, they are not all equally iit to be trustees ; and on the ground of want of fitness the Court will generally refuse to appoint femes covert, infants, and aliens domiciled abroad, as trustees (Lewin, 36, 40 ; Re Peake, (1894) 3 Ch. 520), and may remove a trustee who is convicted of felony or is a bankrupt. (Trustee Act, 1893, s. 25; Re Danson, 48 W. R. 73 ; Re Foster, 55 L. T. 479.) 341a. II. If a person who is appointed executor proves the will, he becomes liable for the performance of the . duties of the office : and if he is also appointed trustee, the taking probate is an acceptance of the entire trust. (Lewin, 10th ed. 215.) But a trustee to whom any power ■ is given may by deed dis- claim it, and it may then be exercised by the other person or persons to whom it is given (45 & 46 Vict, c. 39, s. 6), but he cannot disclaim a particular power while he continues a trustee for other purposes. {Re Eyre, 49 L. T. 259.) 342. TRUSTEES, EXECUTORS, ETC. L55 III. The powers of trustees devolve only on those T"'- H- who are specified as persons to execute the trust. If — — — a man appoints a trustee of real or personal estate, tioii ordele^a- ■without naming his heir or personal representative, tio" of a crust. the personal representative does not become a trustee, although the property may vest in such representa- tive. And where two or more persons and the survivor and the heirs of the survivor are appointed trustees, or where they and their executors or administrators, or the trustees for the time being, are directed to sell, then under s. 30 of the Con- veyancing Act, the personal representative of the survivor can exercise the power. The effect of s. 30 is that there cannot now, except as to copyholds, be any assign of a trust estate by means of a devise. The only " assign " is the trustee duly appointed. (See Trustee Act, 1893, ss. 22, 10 (3) ; Osborne and Eowlett, 13 C. D. 774; Re Morton and Hallett, 15 C. D. 143; Re Inglehy and Boak, dc. Insurance Co., 13 L. K., Ir. 326 ; Re Rumncy, (1897) 2 Ch. 351.) A trustee cannot, without the consent of his cestui que trust or of the Court, denude himself of the character of trustee, till he has performed the trust. If, without such consent, he assigns the trust or delegates the performance of its duties to a stranger, or even to his co-trustee, he will be answerable for the breaches of trust committed by the stranger or co-trustee. (Lewin, 10th ed. 271.) 343. IV. It is a rule in Equity, which admits of no iv. Equity . . never wants a exception, that where a trust exists, Jiiquity never tmstee. wants a trustee. For wherever a perfect trust, as opposed to a trust resting in contract or in fieri, or even an imperfect trust, if supported by- a valuable consideration, has once attached, whether it is an 156 TRUSTEES, EXECUTORS, ETC. Tit. II. express, an implied, or a constructive trust, and it is '■ '— not extinguished by the countervailing equity of a bond fide purchaser for valuable consideration without notice or other person having a conflicting equity, nor has otherwise ceased to subsist, Equity will follow the legal estate, and decree the person in whom it is vested to execute the trust. (See St. § 976, 1159, 1162 ; Lewin, 10th ed. 1017.) And the lapse of the legal estate never has the least influence on the trusts to which it is subject: if the individuals named fail, whether by death, incapacity, or refusal, the Court will provide a trustee ; if no trustees are appointed at all, the Court assumes the office in the first instance (Lewin, 10th ed. 1019) ; and under the •Judicial Trustees Act, 1896, the Court will, in a proper case, appoint the official solicitor or some other person to be a judicial trustee. 344. V. No re- V. Trustees, executors, directors and promoters of allowed. companies, and other persons standing m a fiduciary relation, are not allowed, even with the consent of their co-trustees, co-executors, or co-adjutors, and however extraordinary the services they may have rendered, to take any remuneration by way of commission, or brokerage, or salary, without some express or implied provision for that purpose in the instrument under which they claim. (St. § 466 a, 1268 ; Lewin, 10th ed. 296 ; Brett's L. C. 171 ; Robinson v. Pett, 2 Wh. & Tu. 606 ; Docker v. Somes, 2 M. & K. 655, 664.) And a solicitor, who is a trustee, is not entitled to charge for business, either in a suit or in administration without a suit, done by him in relation to the trust, as distinguished from costs out of pocket, although employed to do it by his co-trustee, unless there is a provision in the deed TRUSTEES, EXECUTORS, ETC. 157 or will creating the trust enabling him to receive Tit. if. remuneration for the transaction of such business. '^'"'' ^"' (Robinson v. Pett, 2 Wh. & Tu. 606 et seq. ,- Broucihton v. Broiighton, 5 D. M. & G. 160; Lawton V. Elwes, 34 C. D. 675 ; Brett's Leading Cases, 170 et seq.) And even where there is a provision that a solicitor is to be at liberty to charge for his professional services, he is only entitled to charge for services strictly professional, and not for matters which an executor or trustee ought to have done without the intervention of a solicitor ; such as for attendances to pay premiums on policies, to make transfers at the bank, attendances on proctors, auctioneers, legatees, and creditors. {Harbin v. Darbfj (No. 1), 28 Beav. 325.) But where it was provided that the solicitor trustee might transact any business occasioned by the trusts, &c. of the will, " whether such business be usually within the business of a solicitor or not," and might "make the usual professional or other proper a7id reasonable charges for all business done and time expended in relation thereto," it was held that the solicitor trustee was entitled, not only to professional charges, but to all costs and charges properly incurred. {Re Ames, Ames v. Taylor, 25 C. D. 72.) But Expenses trustees are entitled, without any express provision, to defray out of the trust funds expenses legitimately and properly incurred, including premiums for insur- ance under the Trustee Act, 1893, ss. 18, 24, and the costs of depositing copies of documents for payment of duty under the stat. 52 Vict. c. 7, s. 13. 345. VI. By analogy to the case of a gratuitous bailee, vi. What a trustee would seem to be liable only for gross diligence they negligence. (St. § 1268.) 346. are hound to ]58 TRUSTEES, EXECUTORS, ETC. Tit. II. Cap. VII. Primtifacir, view of the decisions on the subject. True state of the case. Omission to sell. Investments. On the other hand, it may appear that in practice Courts of Equity have in many cases required extreme circumspection and vigilance, while, in others, they have been satisfied with the degree of care usually exhibited by men in the management of their own affairs. (St. § 1272, 1273 ; 2 Sp. 917.) 347. But the true state of the case seems to be this : that there are certain things which either clearly appear in themselves to be duties or are established as such by the uniform policy of Equity; and to these the Courts require a rigid adherence. But with regard to others it is now established that the law requires of a trustee the same degree of diligence and care in the execution of his office as that which is usually exercised by men of ordinary prudence and vigilance in the management of their own affairs. (Lewin, 10th ed. 317 ; Brice v. Stokes, 2 Wh. & Tu. 633 et seq.) 348. And by the Judicial Trustees Act, 1896 (59 & 60 Vict. c. 35), s. 3, a trustee is entitled to be relieved against a breach of trust where he has acted both honestly and reasonably. (Re Barker, 77 L. T. 712.) 348 a. Thus, if a trustee omits to sell property when it ought to be sold, and it is afterwards lost, although without any fault of his, he is liable; because the loss, although not directly occasioned by his default, would never have happened had he not failed in performing what must have appeared a palpable, although perhaps not an urgent, duty. (See St. § 1269, note ; Lewin, 10th ed. 1107.) 349. If a trustee invests, or even suffers money previously invested to remain, on unauthorized security, however unexceptionable it might seem to be, and such security TRUSTEES, EXECUTORS, ETC. 159 afterwards fails, or if he permits choses in action to Tit. ii. remain outstanding, and a lo^s arises, he will be '■ '— liable ; as also he will for the fluctuations of any unauthorized fund. (See St. § 1269, note, 1273, 1274. note.) 350. Under the Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 1, trustees, unless expressly forbidden by the instrument creating the trust, may invest in any of the investments therein prescribed. The following may be mentioned as the chief investments which this statute prescribes : — Parliamentary stocks, or public funds or Government securities of the United Kingdom, real securities in Great Britain or Ireland; stock of the Bank of England or Ireland ; India stock ; securities, the interest of which is guaranteed by Parliament ; stock of the Metropolitan Board of Works or London County Council ; debenture or preference stock of any railway company in Great Britain or Ireland incor- porated by special Act of Parliament, and having during each of the ten years last past, before the date of investment, paid a dividend of not less than 3 per cent, on its ordinary stock; stock of any railway or canal company in Great Britain or Ireland whose undertaking is leased in perpetuity, or for not less than 200 years, at a fixed rental to any such railway company as is lastly before mentioned ; debenture stock of any railway company in India, the interest on which is paid or guaranteed by the Secretary of State ; debenture or guaranteed or preference stock of any company in Great Britain or Ireland established for the supply of water for j)rofit, and incorporated by special Act of Parliament or Pioyal Charter, and having during each of the ten years last past before the date of investment paid a dividend of not less 160 TRUSTEES, EXECUTORS, ETC. Tit. II. Cav. VII. The Trustee Act, 1893, s. 5. Long terms. Trustees of renewable leaseholds may renew. than 5 per cent, per annum on its ordinary stock; and nominal or inscribed stock lawfully issued by any municipal borough having, according to the returns of the last census prior to the date of investment, a population exceeding fifty thousand, or lawfully issued by any County Council or by any Commissioners incorporated by Act of Parliament for the purpose of supplying water, and having a compulsory power of levying rates over an area having, according to the last census prior to the date of investment, a population exceeding fifty thousand. And the trustees jna.y vary the same for other like investments. (H-time V. Lffpes, (1892) A. C. 112.) 351. By the Trustee Act, 1894, a trustee shall not be liable for breach of trust by reason only of his continuing to hold an investment which has ceased to be an investment authorized by the instrument creating the trust or by the general law. 351 a. And the Trustee Act, 1893 (in which Act the word trustee is, by s. 50, interpreted to include an executor and administrator, and a trustee whose trust arises by construction or implication of law as well as an express trustee), provides by s. 5 that a power to invest trust moneys on real securities authorizes an investment upon mortgage of long terms of not less than 200 years, not subject to any reservation of rent greater than one shilling a year, or to any right of redemption, or to any condition, for re-entry except for non-payment of rent, or on any charge or mortgage of any charge made under the Improvement of Land Act, 1864. And by s. 19, that trustees of renewable leaseholds may renew, and that it is their duty to do so if required by any person having any beneficial interest ; but the section is not to apply where the TRUSTEES, EXECUTORS, ETC. 161 person in possession for life or other limited interest Tit. II. Gap. VII. IS entitled to enjoy the same without any obligation to renew, without his consent in writing. And by the same section a trustee may raise money by mortgage of the trust property to meet the money required to pay for the renewal. 351b. Trustees may lend even upon personal security, if Personal they are expressly empowered to do so, but they may ^^''"" ^' not lend to one of themselves. (Lewin, 335.) And if they have power, with the consent of the tenant for life, to lend on personal security, thej' may lend on the personal credit of the tenant for life, if he is a person to whom such an advance might otherwise be prudently made. (ReLamg,Laing y.Radcliffe, (1899) 1 Ch. 593.) But an indemnity clause, declaring that they shall not be liable for the insufficiency of any security, will not exonerate them from liability if they lend upon palpably inadequate security. {Drosier v. Brereton, 15 Beav. 221.) Where trustees are authorized to invest on mortgage Investment .-n 1 • 1 • 01 mortgage. of real estate, they are not justified in advancing more than two-thirds of the value (see infra, par. 352 a); and if the value depends upon fortuitous circum- stances — for instance, if the property is used in trade, as, for a mill, or factory, or house situate in a watering-place, or the like — the trustees would not in general be justified in lending as much as one-half, and would run the risk of having the mortgage thrown upon themselves, and of being made answerable for the money advanced. (Lewin, 364; remarks of Sir J. Eomilly, M.K., in Madeocl v. Annesley, 16 Beav. 605 ; Btidge v. Gummmv, L. E. 7 Ch. 719 ; Learoijd v. Whiteley, 12 A. C. 727.) In such a case the trustees should act upon the value of the c, M 162 TRUSTEES, EXECUTORS, ETC. Tit. II. property apart from the circumstances which regulate -• — '■ — its business value. {Partington v. Allen, 57 L. T. 654.) 352. With respect to mortgage investments by trustees, it has been laid down as a rule that they themselves, and not their solicitors, must select their valuers, who must be employed independently of the owners of the pro- perty to be mortgaged. {Fry v. Tapson, 28 C. D. 280 ; Re Walker, 59 L. J. Oh. 386, 391.) It has also been held that if the securities turn out to be insufficient, and a loss of trust funds is occasioned, the trustees are not relieved from responsibility by the fact that they relied upon the report of a valuer employed by them to value the property ; and this is still so if the valuation was not made for the purpose of the invest- ment in question. {Speight v. Gaunt, 9 A. C. 1 ; Learoycl v. Whiteley, 12 A. C. 727 ; lie Walker, supra.) According to those decisions a trustee may avail himself of assistance and advice in the execution of his trust, but, having obtained that assistance and advice, be is not entitled to adopt it blindly, but must exercise his judgment upon it to the same extent to which an ordinary prudent man would exercise his judgment in dealing with his own affairs. (Stirling, J., in Partington v. Allen, 57 L. T. 654.) But these Cases The Trustee must be considered in connection with the Trustee Act. Act, 1893, ss. 8, 9, which provides by section 8 that no trustee shall be chargeable with breach of trust by reason only of the proportion borne by the amount of the loan to the value of the property at tlae time of the loan (whatever the tenure of the property, and whether agricultural or house or other property upon which the trustee can lawfully lend), if in making the loan the trustee was acting upon a report as to the TKUSTEES, EXECUTORS, ETC. 163 value of the property made by a person whom the Tit. ii. trustee reasonably believed to be an able practical '^^^' ^"' surveyor, instructed and employed independently of any owner of the property, whether such surveyor carried on business in the locality where the property is situate or elsewhere ; and if the amount of the loan does not exceed two equal third parts of the value of the property as stated in such report ; and if the loan was made under the advice of such surveyor expressed in such report. That no trustee lending on the security of leaseholds shall be chargeable with a breach of trust for dispensing with the production or investigation of the lessor's title if in the opinion of the Court the title be such as a person acting with prudence and caution would have accepted. That no trustee shall be charge- able with breach of trust if in purchasing, or lending money upon, any property he accepted a shorter title than a purchaser is, in the absence of^ a special con- tract, entitled to require, if in the opinion of the Court the title be such as a person acting with prudence and caution would have accepted. And by section 9, that I/iability for where a trustee has improperly lent trust money on a of improper mortgage security which would have been a proper in- vestment in all respects for a less sum, he shall only be liable to make good the sum advanced in excess of the less sum with interest. And these sections apply to advances made as well before as after the passing of the Act. Thus, trustees have now statutory authority for dispensing with the production of the lessor's title on taking a mortgage, as well as on purchasing lease- holds, and may in a proper case take less than a forty years' title. (See Conv. Act, 1881, s. 3 ; Trustee Act, 1893, ss. 8, 15.) 352 a. A trustee is not authorized to sell out stock, and M 2 investments. 164 TRUSTEES, EXECUTOES, ETC. Tit. II. Cap. VII. Omission of trustee or executor to see that tlie property is duly secured or applied. invest the proceeds on a mortgage to secure the retransfer of such stock, and the payment of interest equal to the amount of the dividends. (Whiteley v. , Smith, L. E. 4 Ch. 513.) 353. Where a fund is settled, trustees are bound to invest on securities of a permanent nature ; and must Hot' favour the tenant for life at the expense of the remaindermen. {Knox v. Mackinnon, 13 A. C. 753.) So that even where trustees have power to invest as they think fit, they may not invest upon guaranteed' stock of a terminable character. (Stewart v. Sanderson, L. E. 10 Eq. 26.) 354. An executor will not be liable for money allowed to remain with bankers who fail where it is deposited temporarily or is not an unreasonable sum for executors to keep in the bank {Swinfen v. Sicinfen (No. 5), 29 Beav. 211 ; Fenwicke v. Clarke, 31 L. J. Ch. 728), or where it was only reasonable for the money to be deposited there under the circumstances. {Fenwicke v. Clarke, 4 D. F. & J. 240.) But he will be liable if he places his money in the hands of a banker by way of investment, notwithstanding an indemnity clause against loss by a banker of money deposited for safe custody. {Rehden v. Wesley, 29 Beav. 213 ; Cann v. Cann, 33 W. E. 40.) 355. Again, where there are two or more trustees or executors, it is the duty of each trustee and executor to see that the property is duly secured or rightly applied, as the case may be. And therefore, as a general rule, if by the act, direction, agreement, or consent of one of them, the trust fund is paid over to the other without necessity, even though it was so paid over in order to be applied for those purposes for which it was properly applicable, and the receiver TRUSTEES, EXECUTORS, ETC. 165 ■wastes or misapplies it, each will be answerable for Tn. ii. the whole ; except in the case of money remitted to a — ~ '— co-trustee or co-executor, to be paid by him in his neighbourhood, where the trustee or executor remit- ting the same, in case it had been his own money, would naturally have remitted it to some one to pay it away, instead of undertaking a journey for the purpose of paying it himself. (St. § 110 a, 1281, note, and 1284, and note ; Lewin, 10th ed. 274 ; Tomiley v. Sherborne, 2 Wh. & Tu. 629; Robinson v. Harkin, V1896) 2 Ch. 415.) And so if one trustee is allowed to retain the money, and, he, against the remonstrances of the others, places it in the hands of solicitors to invest on mortgage, and the solicitors apply it to their own uses, the others will be liable. {Griffiths v» Porter, 25 Beav. 236.) So, if one trustee improperly suffers the other to detain the trust money a long time in his own hands, without security, or lends it to the other, or joins or acquiesces in a loan of it to any one else, on insufficient security, each will be liable for the whole loss which may happen. And so, if it is mutually agreed between them, that one shall have the exclusive management of one part of the trust property, and the other trustee of the other part, each will be liable for any loss which may happen, even to the part of which the other has the management (St. § 1274, 1284 ; Lewin, 10th ed. 286 ; Mendes v. Guedalla, 2 Johns. & H. 259 ; Lewis v. Nobbs, 8 C. D. 591) ; because the party not acting was in default for giving the other the power, and exposing him to the temptation, to commit a breach of trust, instead, of exercising that control over the property which it was his duty to exercise for the protection and due manage- ment thereof. And it is the duty of a trustee not to 166 TRUSTEES, EXECUTORS, ETC. J"- ^^- rely upon a mere statement by his co-trustee that the money has been duly invested, but to ascertain that such is the fact. (Lewin, 286 ; and see post, par. 368 a.) 356. Losses with- On the other hand, if a trustee or other person customary standing in a fiduciary relation has not failed in doing diUgence what must have appeared to be a palpable duty, and has invested the property on authorized security, he will not be answerable for losses which happen with- out any want of customary care or diligence on his part. (See St. § 1269, note, 1274, note, and 465.; Lewin, 10th ed. 273 et seq.) So that if he deposits the money with a banker in good credit, to be remitted to the proper person by a bill drawn by a person in due credit, and the banker or drawer of the bill becomes bankrupt, he will not be responsible. The rule in all cases of this sort is, that where a trustee or executor acts by other hands, either from necessity, or conformably to the common usage of mankind, he is not to be made answerable for losses. (St. § 1269 ; Lewin, 10th ed. 273; Speight v. Gaunt, 9 A. C. 1 ; Brett's L. C. 145.) Thus, it has been decided that a trustee is not liable for trust moneys lost through a broker whom he employed to procure authorized securities, and to whom he paid the purchase-money in accordance with the usual course of business in purchases on the London Exchange. [Speighty. Gaunt, 9 A. C. 1 ; Brett's L. C. 145 et seq.) But it has been held that trustees who pay over the trust funds to a wrong party on a forged certificate are liable {Eaves V. Hickson, 80 Beav. 136), for a trustee must look well to the genuineness of the authority to pay. (Lewin, 10th ed. 395.) And a trustee or executor is liable for loss caused by the fraud, negligence, or other fault of TRUSTEES, EXECUTORS, ETC. 167 his solicitor, where he has not taken all ' the pre- Tit. ii. Cap. VII. cautions that he might have done or where the '- '— solicitor is not acting in the ordinary course of his business. (Lewin, 10th ed. 396 ; Bastock v. Floyer, L.E. 1 Eq. 26 ; Hopgood v. Parkin, L. E. 11 Eq. 74; Sutton V. Wilders, L. E. 12 Eq. 373 ; In re Bird, Oriental Commercial Bank v. Sarin, L. E. 16 Eq. 208 ; Re Weall, 42 C. D. 678.) And where a trustee employs a proper person to do a necessary act, and that person is the cause of an accident (as by felling a tree) for which the trustee is made to pay, the loss ought to be borne by the estate, and not by the trustee. (Lewin, 10th ed. 756 ; Bennett v. Wyndham, 4D.F. & J.259.) 357. The Conveyancmg Act, 1881 (44 & 45 Vict. c. 41), The Convey- s. 56, provides that, where a solicitor produces a deed issi. ' having in the body thereof or indorsed thereon a receipt for money or other consideration, the deed being executed or the indorsed receipt being signed by the person entitled to give a receipt for the considera- tion, the deed shall be sufficient authority to the person liable to pay or give the same for paying or giving it to the solicitor. But the solicitor must be acting for the person entitled tO give the receipt. {Day V. Woolivich Equitable Building Society, 40 C. D. 491.) It was decided by the Court of Appeal in Re Bellamy and Metropolitan Board of Works, 24 C. D. 387, that trustees could not authorize their solicitors to receive trust moneys. To meet this decision, the Stat. 51 & 52 Vict. c. 59, replaced by section 17 of The Trus^tee the Trustee Act, 1893, provides that a trustee may appoint a solicitor as agent to receive and give a dis- charge for money or property by permitting such solicitor to have the custody of and to produce a deed 168 TRUSTEES, EXECUTORS, ETC. Tit. II. •Cap. VII. VII. Non- investment. Non-pay- ment. containing such receipt as referred to in the Con- veyancing Act, 1881, s. 56 ; and that no trustee shall be chargeable with breach of trust by reason of such appointment, provided he does not allow the money or property to remain in the control of the solicitor longer than reasonably necessary for transferring it to the trustee. The section does not apparently enable trustees to appoint one of themselves to receive the purchase money. {Re Flower and Metropolitan Board of Works, 27 C. D. 592.) And production of the deed pursuant to section 56 of the Conveyancing Act is equivalent to a special authority given to the solicitor to receive the money. (Re Bellamy, 24 C. D. 387, 399 ; and see Re Hetling, (1893, 3 Ch. 269.) The section also empowers a trustee to appoint his banker or solicitor as agent to receive and give a dis- charge for policy moneys with a similar reservation of liability. 357 a. VII. If trustees do not invest or transfer trust money when they ought to do so, even though they may- make no profit by it, they are responsible for the money and interest. (St. § 1273 a; Att-Gen. v. Alford, 4 D. M. & G. 843.) 358. In like manner executors who, acting hondjide, have improperly paid or improperly retained moneys in distributing assets, are, as a general rule, liable for interest on the sums improperly paid or improperly retained by them, and which they must refund to the estate. {PuwellY. Hulkes, 33 C. D. 552.) 358 a. The rate of interest charged against trustees and executors in such cases was formerly 4 per cent., but the practice now in the Chancery Division is to charge only 3 per cent. (Re Barclay, _(1898) 1 Ch. p. 686.) The Court, however, will charge more than 3 per cent. TBUSTEES, EXECUTORS, ETC, 169 where the trustee has received or ought to have Tit. ii. received more, where he has traded with the money ^^^' ^'^^" or where he is guilty of gross misconduct. (Lewin, 10th ed. 384.) 358 b. VIII. As a general rule, where a testator subjects viil. Termin- the residue of his personal estate to succeeding limi- Lnar"''^'^'^ tations, directly or by way of trust, without any ^^"Ve^- particular du-ections as to the investment or mode of enjoyment, or even with an authority to his trustees to allow the same state of investment to continue ; there, in the absence of indications of a contrary intention, such part of the residue as may be wearing out (such as leaseholds), or may be invested in securities which yield a high rate of interest, but are not authorized by the Court, must be converted and put in such a state of investment as to be securely available for all persons interested in it. And if the residue comprises property of a reversionary nature, that also must be converted. The one rule protects the remainderman, the other protects the tenant for life. The burden of proof in every case rests upon the person who says that the rule is not to be applied. {Howe v. Earl of Dartmouth, 1 Wh. &. Tu. 68 et seq.; Brown v. Gellathj, L. E. 2 Ch. 751 ; Porter v. Baddeley, 5 C. D. 542 ; Macdonald v. Irvine, 8 C. D. 101 ; Brett's L. 0. 132 ; Re Thomas, (1891) 3 Ch. 482; Hope v. D'HedonviUe, (1893) 2Ch. 361 ; Re Bland, (1899) 2 Ch. 836.) 359. IX. Where personalty is directed to be converted IX. Time allowed for as soon as conveniently may be, there, as between conversion. the executors and the persons interested in the estate, the personalty is to be considered as converted within a year ; that being considered as the time within -which, in the generality of cases, it may be converted 170 TBUSTEBS, EXECUTORS, ETC. Tit II. Cap. VII. X. Investment on mortgage. XI. Equity guards against a breach of trast. Trustee may not mix the trust money with his own. with ordinary diligence. (Wms. on Exors. 9th ed. 1316; Lewin, 10th ed. 311.) 360. X. When a sum of stock is given to trustees in trust for a married woman for life, with remainder to her children, being infants, the Court will not ordinarily give its sanction to the fund being sold out and invested on mortgage, so as to give the tenant for life a greater income, though power may have been given to the trustees to lay out the property on real security, and though they join in the application. (2 Sp. 569. And see ante, par. 354.) 361. XI. It is the wise policy of Equity to guard against a breach of trust, by prohibiting all acts which may unnecessarily place the trustee in a situation of temptation. (See 2 Sp. 300.) 362. Hence, in all cases in which a trustee keeps trust money in his hands, or in the hands of a banker, he should take care to keep it separate from his own. For,' if he were to mix it with his own in a common account, he would be charged with interest, and would be liable to the cestui que trust for any losB sustained by the banker's insolvency, and the cestui que trust would be entitled to every portion of the blended property which the trustee could not prove to be his own. (Lewin, 10th ed. 321 ; St. § 1270 ; Cook V. Addison, L. E. 7 Eq. 466.) If the trustee were at liberty to mix the trust money with his own, he would often be tempted to use it as his own, fully intending shortly to replace it ; and frequently, indeed, he would not know whether the money with which he was carrying on his affairs was his own or not. In this way, he would be naturally led to expend the trust money on his own account, and loss to the trust property would frequently be occasioned. 363. TRUSTEES, EXECUTORS, ETC. 171 Similar observations may be made with respect to Tir. II. Cap VIT an agent. (St. § 468.) 364. ' — XII. Upon the same principle, a trustee, or other Xll. Trustee , -,. . n -I • 1 , ■ • is accountable person standing in a fiduciary relation, is never per- for interest mitted to make any profit to himself from the property '^^^^ ^*^"^' with which he is entrusted or from the ofifice itself : if any advantage is gained by such a person, it belongs to the cestui que trust. Hence he is accountable for all the interest which he ought to have made, and would have made, by the investment of the property on the security directed by the instrument creating the trust, or, in the absence of any such direction as to the mode of investment, on the security authorized by the general rule of the Court. And he will also be accountable for any interest and gains beyond the amount of such interest as above mentioned, which he has actually made on, or with, or in regard to, the trust property, whether in the ordinary discharge of his duty, or in transactions entered into for his own benefit, as he supposed, or otherwise, if the amount of such extra interest and gains can be ascertained. (See supra, par. 333, and Lewin, 10th ed. 296; St. § 465, 1211, 1261, 1269, note, 1277, 1278; Robinson v. Pett, 2 Wh. & Tu. 606 ; Re Thorpe, (1891) 2 Ch. 360.) Or he will be made to pay interest at the rate of 4L or 51. per cent. (Lewin, 10th ed. 384.) And, under extraordinary circumstances, the Court will direct annual or half-yearly rests to be made, so as to give the cestui que trust the benefit of compound interest: as, if a trustee, in manifest violation of his trust, has applied the trust fund to his own benefit and profit in trade, or has conducted himself fraudulently, or has wilfully refused to follow the positive directions of the instrument creating the 172 TRUSTEES, EXECUTORS, ETC. Tit, II. Cap. VII. For rent of testator's leaseholds. XIII. Respon- sibility for each other's acts and defaults. trust, as to the investment of the property. (St. § 1277 ; Lewin, 10th ed. 384.) And if a trustee or particular agent purchases from his cestui que trust, even at a pubhc auction, the cestui que trust has the option of taking to or repudiating the transaction ; unless the cestui que trust intended that the trustee should buy, and there has been no fraud, conceal- ment, or advantage taken on the part of the trustee. (Lewin, 10th ed. 555, 558 ; supra, par. 161.) A person may indeed grant a beneficial interest, or make a present, to his trustee, agent, or receiver ; but the latter must show that the dealing was fair, and that the grantor was perfectly free in the matter, and had the same knowledge as he himself had. (2 Sp. 301, 944; Lewin, 10th ed. 747, but see 298; Barrett v. Hartley, L. E. 2 Eq. 789.) 365. An executor who takes possession of leasehold property of his testator becomes (from the time of taking possession) personally liable as assign of the lease of the property for payment of rent up to its letting value ; but he is not liable for rent beyond such value. (Earl of Strathmore v. Vane, 37 C. D. 128.) 365 a. XIII. A trustee (as in certain cases we have noticed, par. 356) is responsible for his own acts and defaults, and for those wrongful acts and defaults of his co-trustees to which he is privy, and in which, though without any corrupt motive, he expressly, tacitly, or virtually acquiesces, or which would not have happened but for his own act or default. Thus, if two trustees have properly sold out trust moneys, and one of them hands the cheque for the proceeds to the other, who misapplies the money, they are both liable. {Trutch v. Lamprell, 20 Beav. 116_; TRUSTEES, EXECUTORS, ETC. 173 Re Bennhon, 60 L. T. 859 ; Rohinson v. Harkin, Tit. II. (1896) 2 Ch. 415.) And so if two trustees execute '- — a release for trust money, which is then received by one and invested by him on improper security, the other is liable ; for it was his duty to see that it was properly invested. {Thompson v. Finch, 22 Beav. 316 ; 8 D. M. & G. 560 ; Partington v. Allen, 57 L. T. 654 ; Lewin, 10th ed. 286.) And where two trustees, who were directed to invest on mortgage or in stock, retained money in a bank, and one died, and the other applied it to his own use, it was held that the estate of the former was liable, though the other might have sold out stock on the death of his co-trustee. {Gibbins v. Taylor, 22 Beav. 344 ; Lewin, 10th ed. 320.) And the same rule applies to executors and other persons standing in a fiduciary relation ; the rule being that the default of one shall not charge the other, provided he has not intentionally or other- wise contributed to it. (Wms. on Legal Eepres. 183.) 366. There is, however, an important distinction in Distinction connection with this point, between the case of mere trustees and executors and the case of trustees ; which, never- i^^ga"(ito%™e theless, does not militate against the application of effect of joining in the above-stated rule both to trustees and executors, receipts. but is founded in the different power with which they are legally invested, and amounts only to this : that a particular circumstance which would afford a presumption of the performance of an act involving responsibility, in the case of an executor, will not afford any presumption thereof in a case of a trustee. Thus, trustees have only a joint interest, power and authority, and must all join both in conveyances and receipts (Re Flower and Metropolitan Board 174 TRUSTEES, EXECUTOES, ETC. Tit. II. of Works, 27 C. D. 592) ; and yet it would be Cap. VII. ... '- impracticable in some cases, and expensive and inconvenient in others, to require that all should together actually receive the trust money from the person by whom the same may be payable. Hence, it cannot be inferred from a trustee joining in a receipt, that he has received any part of the money. But where there are co-executors, each has a several right to receive the debts due to the estate, and all other assets, and is competent to give a valid discharge by his own separate receipt; and, therefore, if they join in a receipt, it is purely a voluntary act, and it will be presumed that they jointly received the money. (See, however. Land Transfer Act, 1897, s. 2 (2), as to sale of real estate ; post, par. 368 a.) 367. In each case, however, the same rule applies as to responsibility for money received; although, in the one case, the party, being a trustee, is not pre- sumed to have done the act which would make him responsible, namely, the act of receiving the money ; because the act done by him is as likely to have been a mere formal act, as not :■ whereas in the other case, the party, being an executor, is presumed to have done the act involving responsibility ; because he has done that which an executor, who has not actually received the money, is not called upon to do. (As to these passages respecting acts and defaults for which a trustee or other person standing in a fiducia!ry relation is responsible, see St. § 1280, 1280 a, and note ; Lewin, 283 ; Brice v. Stokes, 2 Wh. & Tu. 633 et seq.) 368. Trustee Act, Further, the Trustee Act, 1893, expressly provides that a trustee shall be chargeable only for money and securities actually received by him, notwithstanding TRUSTEES, EXECUTORS, ETC. 175 his signing any receipt for the sake of conformity, Tit. II. and shall be accountable only for his own acts, receipts, neglects, or defaults. (Section 24 ; Re Brier, 26 C. D. 238.) It must not, however, be forgotten that there may be cases where it would be a breach of trust for one trustee to allow his co-trustee to receive trust money, as perhaps in the case of purchase money on a sale by trustees {Re Floicer, 27 C. D. 592 ; Lewin, 315, n.), especially having regard to the Land Transfer Act, 1897, s. 2 (2), which provides that one only of several personal representatives shall not sell real estate. (See Appendix.) 368 a. Section 24, however, only expresses the rule of Trustee Courts of Equity {Re Brier, 26 C. D. 238), and does ckusT"^ not extend to cases of wilful default nor exonerate a ■trustee from the consequences of a breach of trust. (Brumridge v. Bricmridge, 27 Beav. 5.) But it has been held that an indemnity clause may be so specially ■worded as to exempt trustees from acts for which they would otherwise be held responsible. {Pass v. Dundas, 29 W. E. 332.) 369. XIV. " Every person who acquires personal assets xiv. Breach by a breach of trust or a devastavit by an executor, is executor. responsible to those who are entitled under the will, if he is a party to the breach of trust. Generally speaking, he does not become a party to the breach of trust by buying, or receiving as a pledge for money advanced to the executor at the time, any part of the personal assets, even knowing them to be such, whether specifically given by the will or otherwise ; because the sale or pledge is held to be priind facie consistent with the duty of an executor. Generally speaking, he does become a party to the breach of 176 TRUSTEES, EXECUTORS, ETC. Tit. II. trust by buying or receiving in pledge any part of the '- '- - personal assets, not for money advanced at the time, but in satisfaction of his private debt; because this sale or pledging is pi'imd facie inconsistent with the duty of an executor." (Per Sir John Leach, in Keane v. Robarts, 4 Mad. 357 ; M'Leod v. Druvimond, 14 Ves. 362 ; St. § 580, 581.) And it may be added that whenever there is a misapplication of the personal assets, and the assets or their proceeds can be traced into the hands of any persons affected with notice of such misapplication, there the trust will attach upon the property or proceeds in the hands of such persons, whatever may have been the extent, of such misapplication or conversion. (Adair v. Shaw, 1 Sch. & Lef. 261, 262 ; St. § 581.) 370. XV. Contri- XV. Where executors or trustees are jointly impli- indeipnity. cated in a breach of trust, all of them should, if possible, be brought before the Court, and should be made to contribute proportionably ; especially where the trust property is to be brought back to be administered by the trustees, or where a general administration is involved. (Perry v. Knott, 4 Beav. 179 ; Munch v. Cocker ell, 8 Sim. 219 ; Devaynes v. Robinson, 24 Beav., note to p. 99 ; Sawyer v. Saivyer, 28 C. D. p. 601 ; Lewin, 10th ed. 1117.) 371. But each of the trustees, who are jointly implicated in a breach of trust, is responsible for the entire loss, and liable to make it good (as in certain cases we have already noticed) : so that the cestui que trust may, in case of need, proceed against any or either of them singly or separately, even against the less guilty. (Walker v. Symonds, 3 Swans. 75 — 78 ; Bradwell v. Catchpole, id. 78, note ; Blyth v. Fladgate, (1891) 1 Ch. 337 ; Lewin, 10th ed. 1116.) And in such case, the TRUSTEES, Executors, etc. 177 trustee or trustees who may be so singly or separately Trr. ii. compelled to make good the loss, may seek contribu- tion from the others or other of them. {Walker v- Symonds, 3 Swans. 76 — 78; Robinson v. Harkin, (1896) 2 Ch. 415.) But in certain cases a trustee has not only a right to contribution, but also a right of indemnity, i.e., of full recoupment, as where the acting trustee is solicitor for the trust or derives any personal benefit from the breach of trust. Lewin, 1118 ; Bahin v. Hughes, 31 C. D. 390 ; Re Turner, (1897) 1 Ch. 536 ; Head v. Gould, (1898) 2 Ch. 250.) And if one of the trustees is also a cestui que trust and has derived a benefit from the breach of trust, he is bound to indemnify his co-trustee to the extent of such benefit. (Lewin, 1119; Chillingwortliv. Chambers, (1896) 1 Ch. 685 ; and see Trustee Act, 1893, s. 45.) 372. XYI. If a cestui que trust has for a long time xvi. Ac- acquiesced in the misconduct of his trustee, with a'^breaoh'oV" full knowledge of it, Equity will not relieve him ; trust. for vigilantibus, non dorinientihus, ceqidtas siibvenit. (St. § 1284 a ; Lewin, 10th ed. 1134.) 373. XVII. The debt created by a breach of trust is xvil. Debt only regarded as a simple contract debt, both at Law trast^is^a^ " and in Equity, even where the trust arises under a !™^^j'lT" deed executed by the trustees ; unless the trustee who committed such breach of trust has acknowledged the debt under seal (St. § 1285, 1286 ; 2 Sp. 936) ; or unless by deed he has not merely accepted the trust, but has agreed or declared that he will execute the trusts (Lewin, 218) ; but the distinction between specialty and simple contract debts has for most purposes been now abolished by 32 & 33 Vict, c. 46. 374. The interest of parties committing a breach of trust, Default by a beneficary. S. N 178 TRUSTEES, EXECUTORS, ETC. Tit. II. whether that interest accrues directly or derivatively, Cap VII may be impounded to compensate the trust. (Jacubs v. Rylance, L. E. 17 Eq. 341 ; Doering v. Doering, 42 0. D. 203 ; Lewin, 1119 ; and see Trustee Act, 1893, s. 45, post, par. 390.) 375. XVIII. Power XVIII. A trustee may bind the estate by a con- of trustee to i ' i i bind the J veyance to a bond, fide purchaser, who had no notice at sale.&J "^ the time of paying his purchase-money (St. § 1264, and note ; Basset v. Nosworthy, 2 Wh. & Tu. 150 et seq.) : because, in that case, the trust is virtually extinguished by the countervailing equity of the bond fide purchaser. But if afterwards the trustee re-purchases or otherwise becomes entitled to the same property, the trust revives and re-attaches upon it. (St. § 1264.) The only exception to the rule which protects a purchaser with notice taking from a purchaser without notice is that which pre- vents a trustee buying back trust property, or a fraudulent man who has acquired property by fraud, saying he sold it to a bond fide purchaser without notice, and has got it back again. (Barroiv's Case, 14 C. D. 435, 445, per Jessel, M.E.) And so, if a trustee or executor transfers trust funds upon the trusts of a settlement made or to be made upon his or her marriage, and the opposite party to the marriage contract had no notice of the fact that the party transferring was not beneficial owner of the funds, it has been held that the trusts of the settle- ment will attach upon the funds. Cooper v. Wormald, 27 Beav. 266.) 376. A purchaser has no right to a conveyance from trustees, where they had no right to sell at all, or not in the way in which they did sell, and where the purchaser was aware of that circumstance before he TRUSTEES, EXECUTORS, ETC. 179 paid his purchase-money. (Dance v. Goldingham, Tit. II. L. E. 8 Ch. 902.) And he might refuse to complete — ~ '— on the ground that the conditions of sale were unnecessarily depreciatory. {Dunn v. Flood, 28 C. D. 586.) 377. But the Trustee Act, 1893, s. 14, provides, with The Trustee respect to sales by trustees after its passing, (1) that s.\'4. no sale by a trustee shall be impeached by any beneficiary upon the ground that the conditions, sub- ject to which the sale was made, may have been unnecessarily depreciatory, unless the consideration was thereby rendered inadequate ; (2) that no sale by a trustee after the execution of the conveyance shall be impeached as against the purchaser, upon the ground aforesaid, unless the purchaser was acting in collusion with the trustee ; and (3) that no purchaser, upon any sale by a trustee, shall make any objection to the title upon the ground aforesaid. Thus, while the purchaser, on the one hand, cannot make any objection on the ground that the conditions were uimecessarily depreciatory, so, on the other, his title cannot be impeached by any cestuis que trust after the execution of the conveyance to him of the pro- perty, unless he has acted in collusion with the trustee. 377 a. The trustee may bind the estate by a bond fide mortgage, or other specific lien, without notice of the trust. But the trust property will not be bound by any judgment or any other claim of creditors against him. (St. § 977.) 378. If, however, for a great number of years a trust for raising money remains unperformed, and a sale or mortgage is proposed to be made by the trustees, without an apparent reason for the sale or mortgage, N 2 180 TRUSTEES, EXECUTORS, ETC. Tit. II. and without the concurrence of the parties who are in Cap. VII. ^ possession and receipt of the rents, the purchaser or mortgagee is under some obligation to inquire and see whether the transaction is or is not a breach of trust. Stroughill v. Anstey, 1 D. M, & G. 654.) 379. Therefore, after a lapse of twenty years, it is fair to assume that the debts have been paid and the pur- chaser is bound to inquire {Re Tanqueray-Willaume, 20 C. D. 465 ; but-' see" Wms. on Legal Eepres. 88) ; but this was held not to apply to the case of an executor selling leaseholds. {Re Venn and Furze, (1894) 2Ch. 101.) 379 a. And if a person, though without any notice of a trust, and for valuable consideration, takes from a trustee a mere equitable estate, interest, or charge, when, for his own safety, he ought to have required a legal estate, interest, or charge, he cannot, in the absence of negligence on the part of the cestui que trust, set it up against the cestuis que trust, where the trustee wrongfully created it. {Shropshire Union Railways, do. Co. v. The Queen, L. E. 7 H. L. 496 ; Re Richards, 45 C. D. 589.) 380. Where a trustee is beneficially interested in part of a trust fund, and misapplies the other part, his own part is liable to make good the other part. And if he assigns his beneficial interest to a stranger, the assignee cannot claim the beneficial interest without discharging the liability. (Lewin, 10th ed. 849 ; Wilkins v. Sibley, 4 Gif. 442.) And a similar equity attaches upon an assignee of a cestui que trust, whose interest is liable to be impounded by reason of com- plicity in a breach of trust. {Bolton v. Curve, (1895) 1 Ch. 544.) 381. XIX. Lia- XIX. An executor or administrator is personally tility, dut)', TRUSTEES, EXECUTORS, ETC. 181, liable for the payment of debts in respect and to the Tit. -II, •extent of the personal assets. It is his primary and — — — '—' paramount duty, with all convenient speed, to pay the executo o/'' debts out of the personal estate. -And he has full *"immistrator. right either to mortgage or sell for payment of debts. And hence if the assets be sold or aliened by the executors or administrators, or any one of them, for valuable consideration, the creditors cannot follow them; they are absolutely vested in the purchaser. And an executor or administrator may assign to a creditor, and give him a power of attorney to collect debts, to secure the payment of his, the creditor's, own debt. (Lewin, 10th ed. 488 ; Earl Vane v. Eigden, L. E. 5 Ch. 663.) 382. If an executor or administrator has, except under the direction of the Court, or except in the case provided for by the stat. 22 & 23 Vict. c. 85, s. 29, paid away the residue in ignorance of the existence of any debt, he is still liable. (Lewin, 10th ed. 1111.) But an executor or administrator fairly stating the facts, and paying over the assets under the direction of the Court in an administration suit, is fully indemnified against all existing or contingent demands on the estate. ( Waller v. Barrett, 24 Beav. 413 ; Bennett v. Lytton, 2 J. & H. 155 ; Williams v. Headland, 4 Gif. 505; Mohni v. Broughton, (1899) P. 211.) And by the stat. 22 & 23 Vict. c. 35, s. 29, " where an executor or administrator shall have given such or the like notices, as in the opinion of the Court in which such executor or administrator is sought to be charged would have been given by the Court of Chancery in an administration suit, for creditors and others to send in to the executor or administrator their claims against the estate of the testator or 182 TRUSTEES, EXECUTORS, ETC. Tit. II. intestate, such executor or administrator shall, at the Cap VII. expiration of the time named in the said notices or the last of the said notices for sending in such claims,' be at liberty to distribute the assets of the testator or intestate, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which such executor or administrator has then notice, and shall not be liable for the assets or any part thereof so distributed to any person of whose claim such executor or administrator shall not have had notice at the time of distribution of the said assets or a part thereof, as the case may be ; but nothing in the present Act contained shall prejudice the right of any creditor or claimant to follow the assets or any part thereof into the hands of the person or persons who may have received the same respectively." And an executor has the same protection under this Act as under a decree {Clegg v. Rowland, L. E. 3 Eq. 368); and as to advertisements, see Re Bracken, 43 CD. 1. 383. But the right of a creditor to follow assets which have been distributed without providing for his debt, being a right only in Equity, equitable consideration, if sufficiently weighty, will make it the duty of the Court not to grant that equitable relief to which under ordinary circumstances creditors are entitled. (Judg- ment of Cotton, L.J., in Blake v. Gale, 32 C. D. 571 ; Mohan v. Broughton, supra.) 383 a. This Act applies to claims of next of kin as well as to claims of creditors. And it affords protection to the sureties in an administration bond, where the administrator has pursued the course prescribed. {Newton v. Sherry, L. K. 1 C. P. D. 246.) 384. By the stat. 22 & 23 Vict. c. 35, s. 30, trustees, executors, or administrators may apply, by petition or TRUSTEES, EXECUTORS, ETC. 18.'} summons, upon a written statement, for the opinion. Tit II. advice, or direction of a judge, on any question respect- '— ing the management or administration of the trust property, or the assets of any testator or intestate. But the procedure by originating summons under Order 55 is so much cheaper that the procedure under the above Act has been practically rendered obsolete. (Wms. on Legal Eepres. 203.) 385. One of two or more executors may settle an account with a person who is accountable to the estate, so as to bind the others and the estate; subject to any question of his liability to the parties beneficially interested for any impropriety of conduct ; and sub- ject to this also, that if there is any fraud or gross error in the settlement of account, it may be a ground for re-opening it. {Smith v. Everett, 27 Beav. 446, 454.) 386. After an administration decree, an executor can do no act to vary the rights of the parties ; as by giving an acknowledgment to take a debt out of the Statute of Limitations. {Phillips v. Beal (No. 2), 32 Beav. 26.) 387. XX. Trustees to support contingent remainders are XX. Trustees peculiarly considered as honorary trustees for the contingent benefit of the family, and as entitled to exercise a remainders. discretion for that purpose. And hence a Court of Equity, except in special cases, will not order them to join in conveyances which may affect or destroy the remainders. And, on the other hand, in those instances where they have so joined, after the first tenant in tail attained his majority, no judge in Equity has gone the length of holding that he would punish them as for a breach of trust, even in. a case where a Court of Equity would not have directed them 184 TRUSTEES, EXECDTOES, ETC. Tit. II. Cap. VII XXI. Equity will aid and direct trustees. Safety of trustees. to join. Where, however, before the first tenant in tail is of age, trustees join in destroying the remainders, they are liable iov a breach of trust ; and so is every purchaser under them with notice. In some few cases, however. Courts of Equity have com- pelled such trustees to join in conveyances which may affect or destroy the remainders, under peculiar circumstances of pressure, to discharge incumbrances prior to the settlement] or in favour of creditors, where the settlement was voluntary ; or for the advantage of persons wl;6 were the first objects of the settlement ; as, for example, to enable the first son to make a settlement on an advantageous marriage. (St. § 995 — 997) . But trusts of this description are now of rare occurrence, the reason being that, by the Con- tingent Eemainders Act, 1877, contingent remainders are no longer dependent on the particular estate in all cases in which the limitation would have been valid had it been a springing or shifting use or an executory devise or other limitation ; but where such limitation would be void for remoteness the remainder will still be liable to be defeated. (See Lewin, 10th ed. 444.) 388. XXI. Courts of Equity will assist trustees and pro- tect them in the due performance of the trust, whenever they ask the aid and direction of the Court, as to the establishment, the management, or the execution of it. (St. § 961.) And in cases of substantial doubt it is best to ask for the direction of the Court. (Lewin, 10th ed. 404, 754.) 389. A trustee who commits a plain breach of trust is not protected from its consequences by the circum- stance that he honestly took and followed the advice and opinion of his solicitor or counsel, whatever TRUSTEES, EXECUTORS, ETC. 185 xemedj' he may have against his soHcitor (Lewin, Tit. ii. Cap VII lOth ed.' 391), or that he committed it with the view of ^ saving his cestui que trust from ruin. (See 2 Sp. 920.) A married woman, who by her entreaties has per- suaded a trustee to commit a breach of trust to rescue her husband and family from ruin, has shortly after- wards made the trustee liable for that breach of trust, by taking Equity proceedings against him. (2 Sp. 920.) But now the Trustee Act, 1893, s. 45, provides The Trustee that where a trustee shall have committed a breach j. ^ll of trust at the instigation or request or with the consent in writing of a beneficiary, the Court may, notwithstanding that the beneficiary may be a married woman entitled for her separate use, whether with or without a restraint upon anticipation, make such order aa shall seem just for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or person claiming through him ; and this section applies to breaches of trust committed as well before as after the pass- XQg of the Act, except where an action or other proceeding was pending on the 24th of December, 1888. 390. A trustee is not in all cases to be made liable upon the mere ground of his having deviated from the strict letter of his trust ; for the deviation may be necessary or beneficial. But when a trustee ventures to deviate from the letter of his trust, he does so under the obligation and at the peril of afterwards satisfying the Court that the deviation was necessary or bene- ficial. (Harrison v. Randall, 9 Hare, 407 ; Forshaiv v. Higginson, 8 D. M. & G. 827.) And it is a rule of Equity that what would have b6en ordered by- the Court is equally valid if done without the sanction of 186 TRUSTEES, EXECUTORS, ETC. Tit. II. the Court. (Lewin, lOth' ed. 676 ; Brown v. Smith, ^^^- ^'"- 10 C. D. 377.) 391. It is impossible ever to pronounce that a trustee or - executor is safe from personal risk, unless he has acted in the execution of the trust under the directions of the Court, or is protected by the stat. 22 & 23 Vict. The Trustee c. 35, ss. 29, 30 {supra, pars. 383, 885.) The Trustee Act, 1888, ^^j.^ j^ggg ^gj ^ g2 Vict. c. 59), has, however, limited the risk by providing by sect. 8, that in any proceeding against a trustee or person claiming through him, except where the claim is founded on fraud or fraudu- lent breach x)f trust to which the trustee is party or privy, or is to recover trust property retained by the trustee, or converted by him to his own use ; (a) all rights conferred by any statute of limitations shall be enjoyed as if the trustee, or person claiming through him, had not been a trustee or person claiming through a trustee ; (b) if the action is brought to recover money or property, and is one to which no statute of limitations applies, the trustee or person claiming under him shall be entitled to plead lapse of time (that is, six years from the time of the cause of action arising, subject of course to the disabilities allowed by law) as a bar to such proceeding, as if the claim had been an action of debt for money had and received, but so that the statute shall run against a married woman entitled in possession for her separate use, whether with or without a restraint on anticipa- tion, but shall not begin to run against any beneficiary until the interest of such beneficiary shall be an interest in possession. No beneficiary as against whom there would be a good defence by virtue of this section, shall derive any greater or other benefit from a judgment obtained by another beneficiary, than TRUSTEES, EXECUTORS, ETC. 187 if this section had been pleaded to the action if Tit. ii. brought by him. This section applies only to pro- —---'"' ceedings commenced after the 1st of January, 1890, and does not deprive any executor or administrator of any right or defence under any existing statute. (As to the effect of this section, see Williams on Account, 201.) 392. Where a person accepts the office of trustee, at the request of the cestui que trust, and the trust estate fails, he is entitled to be indemnified by the latter personally against all loss which may arise in the due execution of the trust. {Jercis v. Wolferstan, L. E. 18 Eq. 18 ; Lewin, 10th ed. 761.) 392 a. Notice to an executor of a possible contingent liability of his testator's estate (such as the possible insolvency of a company believed to be perfectly solvent), is not a sufficient reason for rendering it improper for him to distribute the estate without the direction of the Court ; and if the liability afterwards becomes a debt, he will be entitled to call on the residuary legatees to refund the capital paid to them, but not the intermediate income. (Jervis v. Wolferstan, L. E. 18 Eq. 18 ; Whittaker v. Kershaw, 45 C. D. 320.) 393. XXII. A trustee is entitled to have the muniments xxii. Muni- of title, and, in fact, it is his duty to keep them in "j^™*^ °^ his possession. (Lewin, 10th ed. 830.) 394. Where there is any difficulty or danger, as regards the title deeds of a trust estate, or the securities of a trust fund, the Court may provide for every such emergency by ordering the deeds or the securities to be deposited in Court. (2 Sp. 46 ; Lewin, 1197.) 395. XXIII. Apart from the Trustee Act {ante, par. 341), xxill. if trustees are guilty of gross negligence, mismanage- re'Jnove"^ 188 TRUSTEES, EXECUTORS, ETC. Tit. II. Cap. VII. trustees, and appoint others. XXIV. Re- moyal of executor. XXV. Where ttu.'itees took the fee. ment, or misconduct, or if, from any cause, there is a failure of trustees qualified and willing to act, new trustees will be substituted by the Court. (St. § 1287, 1289.) And the Court will remove a trustee where it is satisfied that the continuance of the trustee would prevent the trusts being properly executed, as where the other trustees would not act with him ; because if he were not removed, irreparable mischief might happen to the trust property. (St. § 1288 ; Lewin, 10th ed. 1033 ; Letterstedt v. Broers, 9 A. C, 371, 386.) 396. XXIV. And under the Judicial Trustees Act, 1896, the Court has power to remove an executor and appoint a judicial trustee in his place. (Re Ratclif, (1898) 2 Ch. 352.) 397. XXV. Before the Wills Act (1 Vict. c. 26), ss. 30, 31, the rule was that trustees took the inheritance, in those cases where it was necessary, for the purpose of a trust created by will, that they should take the inheritance. And in the case of a devise to trustees for sale, though only a part of the inheritance was required to be sold, yet the Court considered them as trustees of the whole inheritance. (2 Sp. 295.) But it is enacted by sect. 30 "that where any real estate (other than, or not being, a presentation to a church) shall be, devised to any trustee or executor, such devise shall be construed to, pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him, expressly or by implication." And by sect. 31, " that where any real estate shall be devised to a trustee without any express limitation of the estate to be taken TRUSTEES, EXECUTOES, ETC. 189 by such trustee, and the beneficial interest in such real Tit. II. •' Cap. VII. estate or in the surpkis rents and profits thereof shall not be given to any person for life, or shall be given for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple or other the whole legal estate which the testator had power to dispose of by will, and not an estate determinable when the purposes of the trust shall be satisfied." 398. The effect of these sections is by no means clear (see Lewia, 10th ed. 235), but whatever their effect, they must now be read in conjunction with the Land Transfer Act, 1897, s. 3, and it is conceived that the trustees will take no estate until the personal represen- tatives have assented to the devise or conveyed the land to the trustees as the persons entitled thereto. 398 a. XXVI. The Land Transfer Act, 1897, s. 3 (2), XXVI. Con- provides that after a year from the death of the legal estate to owner of any land, if his personal representatives have "^^^^^ ^"^ failed on request to convey the land to the person entitled, the Court may order the conveyance to be made. This, however, does not probably alter the old rule that when all the duties of a trustee are at an end, and this is clearly shown to him, and he has no notice of any disposition or incumbrances made by the cestui que trust, he must, on demand, convey the legal estate to his cestui que trust, at the peril of paying the costs of proceedings occasioned by his refusal. But in cases of real doubt or difficulty, a trustee, before he parts with his estate, would, it is conceived, even since the Land Transfer Act, be fully justified in requiring an indemnity from his cestui que trust, or in seeking the directions and indemnity of the Court. (2 Sp. 48 ; Lewin, 10th ed. 394.) 399. 190 Tit. II. Cap. VII. XXVII. Rendering and settle- ment of accounts. Duty of rendering other information. Breaking up testator's establish- ment. Eight of retainer. XXVII. A trustee is entitled to have his accounts examined, and to have a settlement of them. He is also bound to render proper accounts, if demanded, and to be always ready with them. If the cestui que trust is satisfied that nothing more is due to him, he ought to close the account, and give an acknowledg- ment equivalent to a release, though the trustee cannot oblige the cestui que trust to give a release under seal. On the other hand, if the cestui que trust is dissatisfied with the accounts, he ought to require to have the accounts taken. He is bound to adopt one of these two courses : he is not at liberty to keep proceedings hanging for an indefinite time over the head of the trustee. (Williams on Account, 162, 209; 2 Sp. 46, 47, 921 ; Kemp v. Burn, 4 Gif. 348.) 400. A trustee or executor is boimd to render every necessary information, and, if he have not all the necessary information, he is bound to seek for it, and, if practicable, to obtain it. (Williams on Account, 165 ; Talbot V. Marshfield, L. E. 3 Ch. 622.) 401. Executors must be allowed a reasonable time for breaking up a testator's domestic establishment, and discharging his servants. {Field v. Peckett (No. 3), 29 Beav. 576.) 402. As an executor or administrator may pay one creditor of the deceased, in preference to another of equal degree, so he has a right to retain for a debt due to him from the deceased in preference to all other creditors of equal degree with him, but not in preference to creditors of a higher degree ; provided that the debt be one for which another person if the creditor could maintain an action. This right of retainer is based upon the ground that it would be absurd for the executor or administrator to sue himself in order to TRUSTEES, EXECUTORS, ETC. 191 ■obtain payment of the debt due to him. Payment Tit. il. Cap VII, into Court or to an official receiver does not bar the right. But there is no retainer against assets got in by a receiver. (Williams on Legal Eepres. 115 ; Brett's L. C. 165 ; Re Rhoades, (1899) 2 Q. B. 347 ; Be Langley, 68 L. J. Ch. 361.) 402 a. ( 192 ) CHAPTER VIII. OP THE SPECIFIC PERFOEMANCE OF AGREEMENTS AND DUTIES NOT ARISING FROM TRUSTS. Tit. II. Cap. VIII. I. Remedy nt law. II. A specific performance willbedeoreed in Equity, where would not afford com- pensation. III. Not where they would afford a I. By the Common Law, if a party who ought to perform a contract or covenant, failed to do so, no redress could be had, except in damages. (St. § 714.) 403. II. In Equity a specific performance of a contract, covenant, or duty, will be decreed, where damages would not afford an exact compensation for the non- performance thereof, whatever may be the form or character of the instrument containing such contract or covenant, or giving rise to such duty. And hence it will be decreed in all cases of contracts for the purchase of land ; because the local character, vicinage, soil, easements, or accommodations of the land, may give it a peculiar value in the eyes of the purchaser ; so that damages, which would enable the purchaser to buy other land, of the very same marketable value, would not or might not be a complete compensation. And if a bond is entered into, with a penalty. Equity will not regard it as an option to do the act required or pay the penalty, but as an agreement to do the act at all events, of which it will enforce a specific performance. (St. § 715, 717, 718, 739—742, 746, 751, 783—786, 850, 1425.) 404. III. But Equity will not interfere where damages at Law would amount to a complete compensation. SPECIFIC PERFOEMANCE. 193 Hence specific performance of articles of apprentice- Tit. ii. ship would not be decreed. (Webb v. England, 29 ' Beav. 4-i ; Crampton v. Varna Railicdi/ Co., L. E. 7 Ch. compens^ation. 562 ; Wilson v. Northampton, d-c. Railway Co., L. E. 9 Ch. 279.) And a performance of a contract for the sale of stock or goods will not be enforced in ordinary cases ; because damages at Law, calculated on the market price of the stock or goods, are generally equivalent, in point of value, to the delivery of the stock or goods contracted for ; inasmuch as, with the damages, the purchaser may ordinarily buy stock or goods of the same kind and of the same value to himself. But a performance of a contract respecting stock, goods, or personal property, will be enforced where damages at Law could not afford a complete compensation. (St. § 717 — 720, 746 ; Falcke v. Gray, i Drew. 651 ; Cuddee v. Butter, 2 Wh. & Tu. 416, 907 et seq. ; Dowling v. Betjeinann, 2 Johns. & H. 544.) And where the specific performance of a contract respecting chattels will be decreed on the application of one party, on the ground that damages would not be a complete compensation to him. Equity will entertain the like suit at the instance of the other party, though the relief sought by him is merely in the nature of a compensation in damages or value ; for, in nearly all cases of this sort, the Court acts on the ground that the remedy ought to be mutual. (St. § 723.) The same rules apply to agreements respecting personal acts, for the non-performance of which an exact compensation may sometimes be made by way of damages, while in others it cannot. (St. § 722—729.) 405. IV. At Law, contracts and covenants to sell, convey, IV. At u™-, or transfer land or other property, are considered merely s. 194 SPECIFIC PEBFOBMANCE. '^^'^■^^- simply as personal and executory contracts and covenants, and not as attaching to the property personal and executory, m any manner as a present or luture charge or afpeSS' Otherwise. (See St. § 714, 790.) But in Equity, in regard to from the time of a contract for the sale of land, the consequences. vendor, and his heirs, and any one claiming as a subsequent purchaser under him, become, as to the land, trustees for the purchaser and his heirs, devisees, or vendees, provided that in case of the vendor's death after the 31st of December, 1881, if the contract is enforceable against his heir or devisee, his personal representatives can convey the land in order to give effect to the contract (44 & 45 Vict. c, 41, s. 4 ; and see now the wider provisions of the Land Transfer Act, 1897, ss. 1, 2) ; and the pur- chaser and (except so far as the case is altered by Locke King's Act (40 & 41 Vict. c. 34), infra, par. 486) his personal representatives become, as to the money, trustees for the vendor and his personal representatives (St. § 788, 789, 790) ; for, in case of the purchaser's death, his executors must pay the purchase-money and his heir is entitled to the estate, but since Locke King's Act (40 & 41 Vict, c. 84), the estate in the hands of the heir is liable for the repayment to the executors of the purchase-money paid by them. {Re Cockcroft, 24 C. D. 94 ; Ee Kidd, (1894) 3 Ch. 558.) 406. A vendor of land may receive the balance of the purchase-money, and convey the estate to the purchaser, without regard to the receipt of a mere notice that the purchaser had agreed to assign the contract. {McCreight v. Foster, L. E. 5 Ch. 604 ; S. C. num. Shaw v. Foster, 5 H. L. 321.) 407. Every payment of purchase-money to the vendor SPECIFIC PERFORMANCE. 195 transfers, in Equity, to the purchaser, a corresponding Tit. II. proportion of the estate. And hence, where the - — "^ purchase-money is to be paid by instalments, and the purchaser has paid some instalments, and then declines to complete, and is absolved from the liability to complete the purchase, owing to the default of the vendor, the purchaser has a lien on the estate for the money he has so paid, as against the vendor, and every mortgagee of the vendor who simply gives him notice of his mortgage, without attempting to prevent the completion of the contract or the payment of the instalments. {Rose v. Watson, 10 H. L. C. 672.) 408. In like manner, land directed to be sold and turned Land directed into money, is reputed as money ; and money directed and nfoney to be invested in land has in Equity many of the directed to be ■^ "' •' invested m qualities of real estate, and in particular is descendible land. and devisable as such. And this is the case whether the direction be by will, by conveyance or assignment, by marriage articles, by settlement, or otherwise, and whether the land be actually conveyed, or only agreed to be conveyed, and whether the money be actually paid to trustees for the purpose, or only covenanted to be so paid. (St. § 790 ; Fletcher v. Ashburner, 1 ^\h. & Tu. 827 et seq. ; Dixie v. Wright, 32 Beav. 662.) But the person for whose benefit the conversion is to be made may elect to take the property in its unconverted state. And this election he may make as well by acts or declarations clearly indicating a determination to that effect as by an application to a Court of Equity. (St. § 793, 1218.) But where it has vested in two or more persons, one cannot elect without the others or other. {Holloway v. liadcliffe, 28 Beav. 163.) 409. o 2 196 SPECIFIC PERFORMANCE. Tit. II. Cap. VIII. v. Specific performance decreed between persons claiming under the parties. Purchaser's heir may require the money to be paid out of the personal estate. VI. Noncom- pliance with terms of agree- ment in non- essential particula|rs, or slight mis- description. In general, Courts of Equity do not incline to change the quality of the property as the testator or intestate has left it, unless there is some clear act or intention by which he has unequivocally fixed upon it throughout a definite and different character. (St. § 1214, 1214 a.) 410. V. Where the specific execution of a contract respecting lands would have been decreed between the parties, it will be decreed between all parties claiming under them in privity of estate, representa- tion, or title, unless other controlling equities have intervened. (St. § 788.) And where on the death of a vendor of freeholds an enforceable contract for sale is subsisting, his personal representative, who is empowered to convey the lands to the purchaser (under the Conveyancing Act, 1881, s. 4), may maintain a suit against the purchaser for a specific performance. {Hoddel v. Pugli, 33 Beav. 489.) And, before Locke King's Act (40 & 41 Vict. c. 34), infra, pars. 481, 485, 486), where the heir of the purchaser came into Equity for a specific performance, he might in general require the purchase-money to be paid out of the personal estate of the purchaser in the hands of his personal representatives. (St. § 790.) 411, VI. If the terms of an agreement, either through negligence or otherwise, have not been complied with in particulars which do not pertain to the essence of the contract, or if there has been a slight misdescription of the property, specific performance will nevertheless be decreed in favour of the party chargeable with the non-compliance or misdescription, if compensation can be made for an injury that may have been occasioned by the non-compliance or for the misdescription of the property. (See St. § 747, SPECIFIC PEEFORMANCE. 197 748, 771, 775—777, and notes ; Seton v. Slade, 2 Trr. II. Wh. & Tu. 475 rt seg.) 412. "^-1 ^"^- At Law, time was of the essence of the contract. But in Equity it is held to be of the essence of the contract only in cases of direct stipulation that it shall be so considered, or where it is obviously so from the nature of the case ; as where a reversion is sold, or where the property sold is required for some immediate purpose, as trade or manufacture, or is in its nature of a fluctuating value, or is of a determinable character, as an estate for life, or the dealing is with an ecclesiastical corporation. {Walker- V. Jeffreys, 1 Ha. 341.) And even where time is of the essence of the contract, it may be waived by proceeding in the purchase after the time has elapsed. On the other hand, although time may not be originally of the essence of the contract, still either party may sub- sequently make it so, and by a proper notice bind the other to complete within a reasonable time. {Tilley v. Thomas, Brett's L. C. 317 ; Crawford v. Toogood, 13 C. D. 153 ; Hattcn v. Russell, 88 C. D. 334.) Further, the delay may have been so great as to be evidence of the abandonment of the contract, irrespective of any express stipulation as to time. [Eads v. Williams, 4 D. M. & G. 691 ; Mills v. Haywood, 6 C. D. 196 ; Levy V. Stogden, (1899) 1 Ch. 5.) 413. By the Judicature Act, 1873 (36 & 37 Vict. c. 66), stipulation s. 25 (7), "Stipulations in contracts, as to time or essence of otherwise, which would not before the passing of this <^°°'™<=*S' Act have been deemed to be or to have become of the essence of such contracts in a Court of Equity, shall receive in all Courts the same construction and effect as they would have heretofore received in Equity." {Noble v. Edioards, 5 C. D. 878.) 414. 198 SPECIFIC PERFORMANCE. Tit. -II. Cap. Vlir. VII. "Want of title, or a substantial misdescrip- tion, or want of reasonable compliance with agree- ment. VII. Where the vendor is incapable of making a complete title to all the property sold, or there has been a substantial misdescription in important particulars, or the terms have not been reasonably complied with on the part of the vendor, Courts of Equity will generally allow the purchaser an election to proceed with the purchase, pro. tanto, or abandon it altogether ; and in the former case he. will be entitled to have the contract specifically performed as far as the vendor can perform it, and to have an abatement made out of the purchase-money or a compensation. This right to an abatement may be excluded by express condition, even for a deficiency of nearly half, if the purchaser seeks specific performance, though the Court would not enforce specific performance against him (St. § 779 ; Hughes v. Jones, 3 D. F. & J. 307, 315; Cordingley v. Cheesehnrough, 4 D. P. & J. 379 ; Hooper v. Smart, L. E 18 Eq. 683 ; In re Tern; and White, 32 C. D. 14) ; and where the land is less than the quantity stated by a very large proportion, the course is to allow the purchaser to rescind the contract. {Aheraman Iron Works v. Wickens, L. E. 4Ch. 101.) 415. But where there is a substantial misdescription, us where copyhold is described as freehold, or vice versa, the vendor cannot compel specific performance. {Hart V. Sivaine, 7 C. D. 42; Re Beyfits, 39 C. D. 110.) On the other hand, where the misdescription is not substantial, the Court will enforce the contract at the suit of the vendor, compelling him only to make compensation to the purchaser ; and this is generally the case where there is an error as to quantity. {Shackh'ton v. Sutcliffe, 1 Be G. & S. 609; Scott v. Hanson, 1 E. & M. 128.) But such partial perform- SPECIFIC PERFORMANCE. 199 ance will not be compelled where there has been Tit. it. fraud or wilful misrepresentation {Price v. Macauley, —^ '- 2 D. M. it G. 339, 344), nor where the compensation cannot be estimated {Brooke v. Rownthwaite, 5 Ha. 298), nor where the purchaser, at the time of entering into the contract, knew of the vendor's limited title. {Castle v. Wilkinson, L. E. 5 Ch. 534.) And if a person professes to be the owner of the fee simple, and undertakes to sell it, but he is not able to do so. and the purchaser was not aware of his inability, he must convey as much as he can, if the purchaser desires it, and submits to an abatement of the purchase-money. {Barker v. Cox, 4 C. D. 464 ; M'Kenzie v. Hesketh, 7 C. D. 675.) 416. VIII. Where a man has performed a valuable vill. Aoci- part of an agreement, but is rendered incapable of fncapicity performing the remainder, by a subsequent accident, of peiforming the remainder Without any default on his part, Courts of Equity will of an agree- enforce the agreement in his favour (allowing such compensation as may be just), in case he is not in statu quo as to the part which he has performed, but not otherwise. (St. § 772, 796, 797.) 417. IX. In some eases, a performance^ of an agreement IX. Perform^ ■HIT J i J- J. i.1 1 j.i. J! J.1 ance sub modo. Will be decreed, not according to the letter of the con- tract, if that would be unconscientious, but according to the change of circumstances. (St. § 775.) 418. X. Of course, an agreement entered into by parties x. Agreement incompetent to contract, such as infants and lunatics, where the^ will not be enforced against them. Nor will it be p^i'ties were "^ incompetent enforced in favour of such parties; because the remedy to contract. ought to be mutual. (St. § 787, 751, note ; Vansittart v. Vansittart, 4 K. & J. 62 ; Imj^erial Loan Co. v. Stone, (1892) 1 Q. B. 509.) 419. XI. Nor will Courts of Equity enforce a contract, xi. Nor where the 200 SPECIFIC PERFORMANCE. Tit. II. Cap. VIII. terms are not certain and definite. XII. Enforc- ing voluntary deeds. although it is written, if the terms are not certain and definite in themselves : for, in such a case, they might decree precisely what the parties did not intend; and besides this, if any terms are to be supplied, it must be by parol evidence ; and the admission of such evidence would let in all the mischiefs intended to be guarded against by the Statute of Frauds. (Sf. § 767 ; Taylor v. Partington, 7 D. M. & G. 328.) But if a complete contract with certain and definite terms can be collected from correspondence between the parties, specific performance of such a contract will be decreed, even although it was agreed that a formal contract should be prepared embodying the same terms, unless the acceptance of the contract be subject to the condition that a formal contract should be pre- pared and agreed upon, so that until that condition is fulfilled there is no concluded contract. {Rossiter V. Miller, 3 A. C. 1124 ; Hussey v. Home-Payne, 4 A. C. 311. See Brett's Lead. Cas. 285 et seq.) 420. XII. Courts of Equity will enforce an obligation imposed by will, without any consideration. (2 Sp. 255.) But they will not enforce, either against the party himself, or any volunteers claiming under him, any contract or any imperfect gifts inter vivos (not being donations mortis causa), or imperfect assign- ments of debts or other property, or executory trusts raised by a covenant or agreement, or defective or imperfect settlements or conveyances, which are not founded on a valuable consideration, even though the transaction be founded on a meritorious con- sideration, as in the case of a provision for a wife or child; that is. Equity will not enforce them so far as something is sought beyond that which may be recovered under them at Law, although it will, if SPECIFIC PERFORMANCE. 201 necessary, give effect to any legal obligation created Tit. II. by them. But if a transfer, assignment, trust, settle- —^ - jnent, or conveyance is complete, as far as the nature of the property will admit, so that no act remains to be done to give full effect to the title, Equity will enforce it throughout against the party making or creating it, and his representatives, although it be merely voluntary. (St. § 433, 787, 793, a. b., 973 ; Ellison V. Ellison, 2 Wh. & Tu. 835; Jeffenjs v. Jefferys, Cr. & P. 141.) Thus, if the subject be an equitable interest incapable of legal transmutation like a legal interest, a voluntary assignment to a new trustee in trust for a third person, or a voluntary assignment to a third person for his own benefit, or a direction to the existing trustee to hold it upon trust for a third person, is enforceable in Equity. And simply to sign a declaration of trust in favour of the donee, is an effectual mode of effecting a voluntary transfer. And if a person directs by letter, though not for valuable consideration, an executor to pay over to another the share to which such person is entitled, and the letter is acted upon by the executor, it will operate as an assignment. (Brett's L. C. 22 et seq. ; Jones v. Lock, L. E. 1 Ch. 25 ; Lamb v. Orton, 1 Drew. & Sm. 125 ; Richards v. Delbridge, L. E. 18 Eq. 11 ; In re Breton's Estate, 17 C. D. 415.) 421. A third person, particularly if a relation, may enforce in Equity a stipulation made by another in his favour, and for which the party who obtained it has given a valuable consideration plainly with a view of benefiting such third person, though such third person, as regards each of the contracting parties, may be a volunteer (2 Sp. 286 ; Gale v. Gale, 6 Ch. D. 144) : as where a person who has contributed a 202 SPECIFIC PERFORMANCE. Tit, II. valuable consideration to a settlement has exacted, as Cap. VIII. part of the contract, that certain property shall be sO' settled as that the property, whether belonging to one of the parties or the other, shall go to some near relative, in the event of the intended limitation to the issue of the marriage failing to take effect. (2 Sp. 281.) But it would appear that, if the party exacting the stipulation releases the other, the stranger cannot enforce it, unless his condition in life has been altered by the stipulation. (See 2 Sp. 280, 281.) 422. A grant or obligation which is voluntary as regards the grantee or obligee, ceases to be voluntary where, with the privity of the grantor or obligor, it forms the consideration on the faith of which a marriage is contracted and a settlement executed. {Payne v. Mortimer, 1 Gif. 118.) 423. XIII. No XIII. Equity will not interfere, (1.) Where, in formance^'^ ordinary cases, the contract has become incapable where it would of being substantially performed on the part of the be morallv , " wronger" person asking relief (St. § 736), or has been violated ineqm a e. ^^ j^^^^^ {Telegraph, Despatch, dec. Co. v. McLean, L. E. 8 Ch. 658.) (2.) If the plaintiff has been guilty of any negligence affecting the essence of the contract (St. § 771) ; or if there has been laches on the part of the plaintiff, whether vendor or purchaser, either in executing his part of the contract or in applying to the Courts ; for a party cannot call upon a Court of Equity for specific performance unless he has shown himself ready, desirous, prompt, and eager. (Fry, 502 ; Levy V. Stogden, (1899) 1 Ch. 5 ; Mills v. Haywood, 6 C. D. 202.), (3.) If specific performance is sought by the vendor, and there is a substantial defect in the title of the whole or the principal part of the property, not remediable before the decree. (4.) If, there is a SPECIFIC PEEFOKMANCE. 203 substantial misrepresentation or misdescription of the Tit.. II. Cap. 'V^III. estate or property, in a matter unknown to the pur- '■ — - — '- chaser, and in regard to which he was not put upon inquiry ; or if it appears upon the evidence that there was, in the description of the property, a matter in which a person might bond fide make a mistake, and >ie swears positively that he did make a mistake, and his evidence is not disproved, the Court will not enforce the specific performance against him. {Dimmock v. Hallett, L. E. 2 Ch. 21 ; St. § 778 ; Denny v. Hancock, L. E. 6 Ch. 1 ; Steu-art v. Kennedy, 15 A. C. 108.) Where the conditions of sale of a public-house state that it is in the occupation of a tenant, and a brewer agrees to buy it for the sale of his beer, he cannot be compelled to complete his purchase, if he finds that it is under lease to another brewer for a term, of which some years are unexpired. {Caballero v. Henty, L. E. 9 Ch. 447.) (5.) If the title is doubtful, in the opinion of the Court, although the Court itself may have a favourable opinion of the title ; for the Court has no means of settling the question as against adverse claimants, or of indemnifying the purchaser, if its own opinion should turn out not to be well founded. (Pyrke v. Waddingham, 10 Hare, 7, 10 ; Sykes v. Sheard, 2 D. J. & S. 6 ; Miillings v. Trinder, L. E. 10 Eq. 449 ; Palmer v. Locke, 18 C. D. 381.) But if the Court is clearly of opinion that the title is good, it will not be deterred from enforcing specific performance, by the fact that one of the conveyancing counsel of the Court, or a judge of the Court below, considered the title doubtful. (Hamilton v. Buckmaster, L. E. 3 Eq. 323 ; Beioley v. Carter, L. E. 4 Ch. 230 ; Radford v. Willis, L. E. 7 Ch. 7 ; Bell v. Holtby, L. E. 15 Eq. 178.) (6.) If the character and condition of the property 204 SPECIFIC PEEFORMANCE. Tit. II. have been so altered that the terms of the contract are Cap. VIII. no longer applicable to the existing state of things. (St. § 750.) (7.) If the defendant can show that, by fraud or mistake, the thing bought is different from what he intended ; or if there was a great mistake as to the price. (Webster v. Cecil, 30 Beav. 62.) (8.) If the estate bought is of a different tenure ; as if it was described as freehold, when in fact it is copyhold {Ayles V. Cox, 16 Beav. 23) ; or copyhold enfranchised under an Act of Parliament reserving to the lord his mineral rights (Upperton v. Nicholson, L. E. 6 Ch. 436, 444) ; or if it was described as freehold when leasehold, or as copyhold when freehold (Ayles v. Cox, 26 Beav. 23). (9.) If material terms have been omitted in the agreement, or there has been a variation of it by parol, (St. § 770.) (10.) If the contract is founded in im- position, surprise, misrepresentation, undue influence, or fraud of any kind ; as where property was put up for sale to the highest bidder without mentioning any reserve, and the auctioneer and an agent for the vendor both bid against each other (Mortimer v. Bell, L. E. 1 Ch. 10 ; 30 & 31 Vict. c. 48) ; or where a purchaser, who is better informed as to the value of the property than the vendor, hurries the vendor into an agreement, without giving him an opportunity of inquiry or advice. (Walters V. Morgan, 3 D. P. & J. 718.) But the fact that the purchaser at a sale by auction was induced by a fictitious bidding, unknown to the vendor, to purchase for more than he had bid previously to the fictitious bidding, and more than the reserved price, has been held to be no defence to an action for specific per- formance by the vendor. (Uniuii Bankv. Munster, 37 Ch. D. 51.) (11.) If, after the day fixed for perform- ance is past, specific performance is sought by the SPECIFIC PERFORMANCE. 205 purchaser, and the price is inadequate, or by the Tit. II. vendor, and the price is unreasonable. (Sugd. Concise View, 189.) (12.) In the case of one entire agreement, the Court cannot decree specific performance of part of it, if it is unable to decree specific performance of the other part. {Stocker v. Wedderburn, 3 K. & J. 393, 407; Ogden v. Fossick, 4 D. P. & J. 426; Ryan v. Mutual Tontine, (1893) 1 Ch. 123, 125.) But the principle that if the thing must be performed at all, it must be performed in toto, does not apply to an agreement which contemplated successive perform- ances of different parts independently of one another. {Wilkinson v. Clements, L. E. 8 Ch. 96, 110 ; Odessa Tramways v. Mendel, 8 C. D. 244.) And where an estate is agreed to be purchased, and certain other things taken at a valuation which are not at all an essential part of the purchase, and the vendor refuses to appoint a valuer, the Court will compel him to convey the estate without them. {Richardson v. Smith, L. E. 5 Ch. 648.) (13.) The Court will not force any one to take a title which it is evident will involve the taker in immediate litigation, unless he knew this when he bought the property. {Pegler v. White, 33 Beav. 403.) (14.) The Court will not enforce specific performance if, on any other account, it would be morally wrong, illegal, unreasonable, impracticable, or inequitable to do so. (St. § 760, 750 a, 751 a, 769, 787 ; Shrewsbury and Birmingham Rail. v. North- Western Rail., 6. H. L. Cas. 113 ; Falcke v. Gray, 4 Drew. 651 ; Tildesley v. Clarkson, 30 Beav. 419 ; Cochrane v. Willis, L. E. 1 Ch. 58 ; Baskcoinb v. Becku-ith, L. E. 8 Eq. 100 ; Sayersv. CoUyer, 28 C. D. 103 ; Stewart v. Kennedy, 15 A. C. 108 ; Glasse v. Woolgar, 41 Sol. J. 573.) 424. 206 SPECIFIC PEKFORMANCE. Tit. II. And where there is a sufficient ground why specific performance should not be enforced against a pur- chaser, the Court will not enforce it, though something else than that may be his actual motive for resisting specific performance. (Denny v. Hancock, L. E. 6 Ch. 1.) 425. The Court will not refuse to decree the specific performance of an agreement on the ground that one of the contracting parties has mistaken its clear legal effect. (Powell v. Sinith, L. E. 14 Eq. 85.) 426. Notwithstanding a party may have taken possession before the fulfilment of the promises of the opposite party to do necessary works, he may set up the non- fulfilment of such promises as a defence to a specific performance of the agreement to take the property. (Lamare v. Dixon, L. E. 6 H. L. 414.) 427. XIV. Nor XIV. In like manner, Equity will not enforce will Equity enforce assign- assignments, Contracts, or covenants which are iTacts,'or"' against public policy. 428. And hence, covenants j_ ^j^ officer in the army or navy, or other officer against public j j ' •^ policy : as in of the government, cannot assign his future accruing the case of, ,, , . , t . -, , 1 Assi n- P^^' °^ other remuneration connected with the right ments by of the government to future services from him ; officers of . . the govern- because it IS contrary to the honour, dignity, and ™™*" interest of the State that its servants should be in danger of being reduced to poverty by anticipating these resources which were intended to place them in a suitable condition of respectability, comfort, and efficiency. (See St. § 769, 1040 c— 1040 f, and notes.) But a man may assign a pension given him entirely for past services : and prize money may be assigned. {2 Sp. 867.) And an assignm.ent of a pension granted by the late East India Company is valid. (Heald v. Hay, 3 Gif. 467.) And it has been held that the SPECIFIC PEBFOBMANCE. 207 pension payable to a former officer of the East India Tit. it. Cap. VIII. Company out of the revenues of India since the Transfer Act (21 & '22 Vict. c. 106) may be assigned. (Careiv v. Cooper, 4 Gif. 619.) 429. 2. On principles of public policy, Equity will not 2. And those uphold assignments which involve champerty, or main- chlmpCTty, tenance, or buying of pretended titles. (St. S 1049 ; mainteuauce, V o 'or buying of De Hoghton v. Money, L. E. 2 Ch. 169 ; Reynell v. pretended Sprye, 1 D. M. & G. 660.) Champerty {campi *"^''' partitio) is properly a bargain' between a plaintiff or defendant in a cause, and another person who has no interest in the subject in dispute (campum partire), to divide between them the land or other property sued for, if they prevail, in consideration of the other person carrying on the suit at his own expense. Maintenance, of which champerty is a species, is properly an officious intermeddling in a suit which in no way belongs to one, by maintaining or assisting either party with money or otherwise to prosecute or defend it. Each of these is punishable both at the Common Law and by statute, as tending to keep alive strife and contention, and to pervert the remedial process of the Law into an engine of oppression. And the stat. 32 Hen. VIII. c. 9, prohibits the transfer of any right or title to hereditaments, unless the seller or his ancestors, or those by whom he claims, have been in possession of the same, or of the remainder or reversion thereof, or of the rents and profits thereof, for one year next before the sale. (St. § 1048, and note, and 1048 a; 2 Sp. 869; Hilton V. Woods, L. E. 4 Eq. 432.) And Courts of Equity enforce all the principles of Law upon these points. Exceptions are made, however, to the general rule against champerty and maintenance, in the case of 208 SPECIFIC PERFORMANCE. Tit. II. father and son, or of an heir-apparent, or of the Cap. VIII. . rr ' husband of an heiress, or of a master and servant, or the like. (St. § 1049 ; 2 Sp. 870, 871.) 430. 3. Nor assign- 3. Upon the Same principle of not giving any ments of mere j j t, ■ j- • ni i ^ naked rights encouragement to litigation, especially when under- to litigate. taken as a speculation, Equity will not enforce the assignment of a mere naked right to litigate, that is, a right which, from its very nature, is incapable of conferring any benefit except through the medium of a suit ; such as a mere naked right to set aside a con- veyance for fraud. (St. § 1040 g, and note ; 2 Sp. 868, 869, 872. See Hill v. Boyle, L. E. 4 Eq. 260.) The right to complain of a fraud is not a marketable commodity ; and if it appears that an agreement for purchase has been entered into for the purpose of acquiring such a right, the purchaser cannot call upon the Court for a specific performance of the agreement. (De Hoghton v. Money, L. E. 2 Ch. 164.) But a person may take an assignment of the whole interest of another in a contract, or security, or property, which is in litigation, provided he does not make any advance beyond the mere support of the interest which he has so acquired. Thus, notwith- standing the statute 32 Hen. VIII. c. 9, above referred to, an equitable interest under a disputed contract for the purchase of real estate may be the subject of a sale. If such an interest is sold by the purchaser under such original contract, he becomes in Equity a trustee for his sub-purchaser, and must permit the sub-purchaser to use his name in legal proceedings for obtaining the benefit of the contract. And without entering into any covenants for the purpose, such sub-purchaser is obliged to indemnify the original purchaser from all the acts which he SPECIFIC PERFORMANCE. 309 must do for the sub-purchaser's benefit. And so, Ti'i- U- , . , , ,. Cap. VIII. a legatee may assign his legacy, and a creditor may assign his interest in a debt, although he may have commenced a suit to recover it. (St. § 1050 — 1054 ; '2 Sp. 863, 868 — 871 ; Mi/erti v. United Guarantee Compani/, 7 D. M. & G. 112 ; Tyson v. Jackson, 30 Beav. 384.) In these cases there is an actual interest in the assignor, independently of litigation ; and although it may require continued litigation to enforce it, yet the parties may possibly adjust the matter without further proceedings ; whereas, in the case first mentioned, there is no interest in the assignor, or none but what may result from oversetting an interest in the other party. 431. 4. It was the rule of the Common Law that no 4. Common possibility, right, title, or thing in action, can be against granted to third persons, except in the case of the assignment of ° J. J X possibilities ov Sovereign, to whom and by whom an assignment things in could always be made ; for it was thought that a different rule would be the means of multiplying contests and suits. And at Law, until the Judicature x\ct, 1873, this still continued to be the general rule, except in the case of negotiable instruments and some few other securities, or where a debtor assented to the transfer of a debt, so as to enable the assignee to maintain a direct action against him on the implied promise which resulted from such assent ; and except in the case of possibilities coupled with an interest, and contingent interests in real estate, which might be granted and assigned at Law, in consequence of the Stat. 8 & 9 Vict. c. 106 (St. § 1039 ; 2 Sp. 850, 851, 855) ; and except in the case of assignees of policies of marine or life assurance who might sue in their own names in consequence of the stats. s. P 210 SPECIFIC PERFORMANCE. Tit. II. 30 & 31 Vict. c. 144, and 31 & 32 Vict. c. 86. And '■ '— in the case of an assignment of a bond or other debt which formed an exception to the above-mentioned rule, it was necessary to sue in the name of the original creditor ; the person to whom it is trans- ferred being regarded rather as an attorney than as an assignee. (St. § 1056.) 432. is not adopted Even before the late Statute of Wills, a devise of a in Equity. possibility coupled with an interest, or of a contingent interest, whether in real or personal estate, was good at Law. (2 Sp. 854.) And a covenant to settle, charge, dispose of, or affect property to be hereafter acquired, will operate in Equity upon the property so afterwards acquired. (2 Sp. 254.) And Courts of Equity gave effect to assignments, for valuable con- sideration, of trusts and possibilities of trusts, and contingent interests, whether in real or personal estate, contingent gains, such as freight to be earned or a cargo to be procured, and even mere expectancies of heirs to their ancestor's estate, and choses in action. For such an assignment of a chose in action is considered in Equity as amounting to an agreement to permit the assignee to make use of the name of the assignor at Law, in order to recover the debt, or to reduce the property into possession ; or as a contract entitling the assignee to sue in Equity in his own name, and enforce payment of the debt directly against the debtor, whether he has assented or not, maki^ig him, as well as the assignor, if necessary, a party to the action. (See St. § 1040, 1040 c, 1044, 1055, 1057.) And such assignments of contingent interests, possi- bilities and expectancies, are regarded in Equity as amounting to contracts to assign, when the interest becomes vested : and when the interest does so SPECIFIC PEKFOEMANCK. 211 become vested, the claim of the assimee is enforced, Tit. II. ^ . , , , * Cap. Vm. not mdeea as a trust, but as a right under a contract. (St. § 1040 b.) 433. By the Judicature Act, 1873 (36 & 37 Vict. c. 66), Assignment of debts and s. 25, (6) " Any absolute assignment, by writing under ehoses in the hand of the assignor (not purporting to be by way '"^ ^°"' of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive, or claim such debt or chose in actio7i, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor; " and such notice may be given at a subse- quent date even after the death of the assignor, but the assignment will be subject to the equities arising up to the date of the notice. (Walker v. Bradford Old Bank, 12 Q. B. D. 511 ; Western Waggon Co. v. West, (1892) 1 Ch. 271.) "Provided always, that if the debtor, truster, 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 concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and in conformity p2 212 SPECIFIC PERFORMANCE. Tit. II. ^ith the provisions of the Acts for the relief of Cap. VIII. ..„.. trustees." 434. What To come within that section an assignment must be amounts to an i i i ■ ; i -i^- 1^111 assignment. an absolute assignment by writing under the hand of the assignor. But an absolute assignment may be made of moneys not yet become due. (Brice V. Bannister, 3 Q. B. D. 569.) And with respect to what amounts to an assignment, it may be stated that, as a general rule, anything written, said, or done, in pursuance of an agreement, and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it in favour of another person, amounts to an equitable assignment. (2 Sp. 855, 860, 861, 907 ; Chowne v. Baylis, 31 Beav. 351.) So that an agreement between a debtor and a creditor, that the ^ebt shall be paid out of a specific fund coming to the debtor, will operate as an equitable assignment. And an order given by a debtor to his creditor upon a person owing money to such debtor; or holding funds belonging to him, directing sucb person to pay the creditor out of such money or funds, will amount to an irrevocable equitable assignment of such money or funds, or a sufficient part thereof, if made in consequence of a direct agreement. Diplock V. Hammond, 2 Sm. & Gif . 141 ; Watson v. D. Wellington, 1 E. & M. 602 ; Malcolm v. Scott, 3 Ha. 39 ; Buck V. Robson, 3 Q. B. D. 686; Harding v. Harding,' 17 Q. B. D. 442.) And if such money or fund is handed over to the assignor by the person so ordered to pay, he will be made to pay it over again to the assignee. {Jones V. Farrell, 1 D. & J. 208 ; Brice v. Bannister, 3 Q. B. D. 569.) But a mere mandate will not amount to an equitable assignment or appropriation, for such SPECIFIC PERFOEMANCE. 213 a mandate may be revoked at any time before it is Tit. II. Cap VIII executed. (Morrcll v. Wooteii, 16 Beav. 197.) Thus, '- ^ where a railway company was indebted to their engineer, who was greatly indebted to his banker, and the engineer authorised the solicitors of the com- pany by letter to receive the money due to him from the company, and requested them to pay it to the banker, and the solicitors by letter promised the banker to pay him such money on receiving it ; it was held that this did not amount to an equitable assign- ment or appropriation, but was a mere revocable authority to receive the debt. (Rodick v. Gandell, 1 D. M. & G. 763.) And there can be no effective appropriation if no specific fund out of which the payment directed to be made is specified. (Perciral V. Dunn, 29 C. D. 128.) And any purported appro- priation which amounts only to a mandate will be revoked by the bankruptcy of the debtor. {Ex parte Hall, Re Whitting, 10 C. D. 615.) But if bills are drawn against goods and the consignee of the goods dirfects his agent to realize the goods and apply the proceeds in payment of the price, this direction will operate as an equitable appropriation, if communicated to the bill holder, but not otherwise. {Ranken v. Alfaro, 5 C. D 786 ; Brown, Shipley d Co. v. Kough, 29 C. D. 848.) 435. When an assignment is made, everything must be What must be T , 1 J 1 1 i • • J? • • i.1 i. done to obtain done towards the obtammg ot quasi possession that quasi posses- the subiect admits of, in order to prevent payment to sion under an •> . assignment, the assignor himself, and in order to acquire by assign- ment a complete title to a chose in action, as against trustees in bankruptcy or insolvency, or as against subsequent purchasers or incumbrancers, who might otherwise be deceived by apparent possession and 214 SPECIFIC VEEFORMANCE. J^"- Yfj ownership remaining in a person who in fact is not the owner, or, in case of voluntary assignments, even as against the assignor himself. Hence notice of the assignment of a debt should be given to the debtor or his legal personal representative or other the legal hand to receive the debt {Stephens v. Green, (1895) 2 Ch. 148), and such notice, in the case of a debt, for instance, is for many purposes tantamount to possession, for the notice perfects the title and gives a complete right in rem ; and this doctrine of equity of the necessity for notice in such cases is sometimes called the rule in Vearle v. Hall (3 Euss. 1). And if after notice the debtor pays away the debt to any other than the assignee who has given notice, he will be liable to pay it over again out of his own moneys to the assignee. {Brice v. Bannister, 8 Q. B. D. 669 ; Ward V. Duncombe, (1893) A. C. 369.) The notice may be informal, if otherwise sufficient {Newman v. New- man, 28 C. D. 674) ; but as against the insurance office itself, notice of the assignment of a policy of insurance must be the formal notice prescribed by 30 & 31 Vict. c. 144 {Newman v. Newman, supra). It is not necessary that the notice should be given in the lifetime of the assured : the jDrinciple is that it is sufficient if the notice is given to the party having the fund, while it remains in his possession. {In re Russell's Policy Trusts. L. E. 15 Eq. 26.) If a policy of insurance is deposited with a person to secure an equitable mortgage to him, he will have priority over a second equitable mortgagee, though the first did not give notice to the company, and the second mortgagee did give notice to the company. For one equitable mortgagee without possession of the deeds must be postponed to another who has the deeds. {Spencer SPECIFIC PERFORMANCE. 215 V. Clarke, 9 C. D. 137, 143.) But in general, in Tit. II. Cap. VIII. assignments of equitable interests other than equit- — '- '- able estates, he who gives formal notice to the holder of the fund has priority over him who does not. In general, notice to one of several obligors or trustees is sufficient, at least, during the lifetime of that trustee- (Lewin, 864; Brett's L. C. 215; Low v. Bouverie, (1891) 3 Ch. 82; Ward v. Duncombe, (1893) A. C. 369.) And notice to the solicitor of the trustees is sufficient if the solicitor be actually, either expressly or impliedly, authorized as agent to receive notices. (Saffron Walden Building Society v. Rayner, 14 C. D. 406 ; and see Conveyancing Act, 1882, s. 3.) .Where the assignor is one of the trustees the notice which he has is not sufficient, but where the assignee is one of the trustees the notice which he has is sufficient, for he will, of course, for his own protection take care to apprise future incumbrances of the assignment to him- self. (Lewin, 865 ; Broivne v. Savage, 4 Drew. 635 ; Newman v. Newman, 28 C. D. 674.) In the case of an assignment of an interest in a fund in Court, the assignee should obtain a stop order. (As to the effect of a stop order see Lewin, 872 ; Mutual Life Assoc. V. Langley, 32 C. D. 460, 470; Mackv. Postle, (1894) 2 Ch. 449.) In the case of an assignment of costs of suit not yet ordered to be paid, notice should be given to the trustees to whom they would be payable. {Day V. Day, 1 D. & J. 144.) In the case of an assignment of freight, the assignee should give notice to the charterers of the assignment. (Brown v. Tanner, L. R. 3 Ch. 597.) In the case of shares in a com- pany, notice must be given to the company. (ExjMrtc Boulton, 1 D. & J. 163 ; and see, as to the effect of such notices on the rights of the company, Societr 216 SPECinC PERFORMANCE. Tit. II. Generale v. Tramivays Union Co., 11 A. C. 20 ; Colonial Bank v. Whinney, ib. 426 ; Re Hampshire Land Co., (1896) 2 Ch. 743 ; Hopkinson v. Bolt, 9 H. L. C. 514.) But verbal notice to the directors, in the course of the transaction of the business of the company, is sufficient. (Ex parte Agra Bank, L. E. 3 Ch. 555.) If the notice be by parol it must be clear and distinct (Lewin, 870), or sufficient to bring to the mind of the trustee an intelligent apprehension of the nature of the dealing with the trust property so that he may regulate his conduct accordingly. {Lloyd v. Banks, L. R. 3 Ch. 488, 490 ; Saffron Walden v. Rayner, 14 C. D. 406.) In order to maintain his priority, it is sufficient if a prior assignee of the proceeds to arise from the sale of an officer's commission gives notice to the army agent of the regiment before the money has reached the agent's hands, though a subsequent assignee gave notice first. {Buller v. Plunkett, 1 Johns. & H. 441 ; see also Webster v. Webster, 31 Beav. 393 ; Smnerset v. Cox, 33 Beav. 634 ; Addison v. Cox, L. E. 8 Ch. 76.) And here it may be added that in general notice through an agent will not be imputed where the circumstances are such as to raise a conclusive pre- sumption that he would not communicate the fact to his principal. {Care v. Cave, 15 C. D. 639, 644.) 436. Paymeatsto When a debt not legally assignable has been debt""* " ^ equitably assigned by the creditor to a purchaser for valuable consideration, and the debtor has had notice of the assignment, all payments which he may thereafter make to the purchaser on account of the debt must be considered to be well made, so far at least as the debtor is concerned, notwithstanding that the purchaser may in fact, after notice of his SPECIFIC PERFORMANCE. 217 purchase to the debtor, have sold or mortgaged the debt Tit. II. to some other person ; provided that the payments —^ '~~ ■were made by the debtor without notice of the latter sale or mortgage. Nor, in such a case, is it incumbent on him, before making a payment to the original purchaser, to require production or proof of the original assignment. {Stocks v. Dobson, -i D. M. & G. 11, 17.) 437. An equitable assignee of a legal term is not liable Suit against to be directly sued in Equity by the lessor for rent, or assignee ^of a for damages in respect of breaches of covenants, even ^^^^^ *^™- though he may have been in possession. {Cox v. Bishop, 8 D. M. .t G. 815 ; Wright v. Pitt, L. E. 12 Eq. 408.) 438. As a general rule, an assignee of a cliose in action. Assignees other than a bill of exchange or a note, takes it tfeq"i«es''of subject to the same equities as it was liable to in the assignor. hands of the assignor. (1 Wh. & Tu. 132 ; Lewin, 848 ; Maitf/les v. Dixon, 3 H. L. Cas. 702 ; 2\irUm v. Benson, 1 P. W. 496; Christie v. Taunton, (1893) 2 Ch. 175.) And a trustee in bankruptcy stands on the same footing as a particular assignee. (Lewin, 859 ; In re Atkinson, 2D. M. & G. 140.) But the person entitled to such equities may release them, either expressly or by implication arising from his course of conduct. {In re Northern Assam Tea Company, L. E. 10 Eq. 458 ; Rr Agra Bank, L. E. 2 Ch. 391.) And the rule only applies where no contrary intention appears from the nature or terms of the contract. {Re Blakely Ordnance Co., L. E. 3 Ch. 154.) 439. 5. The Courts of Equity will not enforce the 5. Inter- .„ J, . " J. i. r fereiice in specific performance of an agreement to refer any reo-ard to matter : though they will do so indirectly by staying ^'''I'iti'ation. proceedings. (Arb. Act, 1889, s. 4.) Neither will 218 SPECIFIC PERFORMANCE. Tit. II. Equity compel arbitrators to make an award. Nor, '— ■when they have made an award, will Equity compel them to disclose the grounds of their judgment. (St. § 1457 ; Duke of Buccleuch v. Metropolitan Board of Works, L. E. 5 H. L. 418.) Nor will it interfere in the case of an agreement which -^as agreed to be wholly or partly determined by arbitrators who have not yet arbitrated. {Barhey v. Whitaker, 4 Drew. 134.) The Court has no power to grant an injunction to restrain a person from proceeding to arbitration in a matter beyond the agreement to refer, although the arbitration may be futile and vexatious {North London Rail. V. Great Northern Rail., 11 Q. B. D. 30) ; and the Court has not even jurisdiction to restrain a party from proceeding without any authority whatever in an arbitration in the name of another, because the objection may be taken in an action to enforce the award. {Farrar v. Cooper, 44 CD. 323 ; London and Blachwall Rail. v. Cross, 31 C. D. 354.) But an inequitable refusal of a plaintiff to submit to arbitration according to contract may disentitle him to relief in Equity, on the ground that he who seeks Equity must do Equity. {Cheslijn v. Daily, 2 Y. & C. Ex. 170.) 440. Courts of Equity will enforce a specific performance of an award which is unexceptionable, and in which the parties have acquiesced. (St. § 1458, 1459; Arbitration Act, 1889, s. 12.) And where both parties have for a long time acquiesced in or acted upon an award, even though objections might have been originally urged against it, an application to set it aside will not be entertained. (St. § 1459.) But where an arbitrator has been guilty of unfairness or partiaHty, relief will be given against his award. SPECIFIC PERFORMANCE. 219 (Ormes v. Beadel, 2 Gif. 166.) But there must be Tit. Ii. Cap VIII proof, and not merely suspicion, of this. (Moseley v. Simpson, L. E. 16 Eq. 226.) And where it appears that an arbitrator is going wrong in point of law, even in a matter within his jurisdiction, the Court has power to give leave to revoke the submission to arbitration ; but it will only do so under exceptional circumstances. (Javies v. James, 23 Q. B. D. 12 ; East and West India Dock Co. v. Kirk, 12 A. C. 738.) 441. On the question of setting aside an award. Courts of Law and Equity have acted on the same principles. {Moseley v. Simpson, L. E. 16 Eq. 226.) Any kind of irregularities may be waived by the parties. (Moseley V. Simpson, L. E. 16 Eq. 226.) 442. The arbitrator must not have any interest in the matter in dispute. (Beddoir v. Beddow, 9 C. D. 89.) And where there is an engagement between an architect and his employer that the total outlay shall not exceed a certain amount, and that engagement is concealed from the builder, it annuls a proviso for referring all matters to the arbitration of the architect, so far as the builder is concerned. {Kiiuherley v. Dick, L. E. 18 Eq. 1, 19.) 443. X\'. Courts of Equity will enforce a specific per- x\'. Parol formance of a parol contract within the Statute of enforced^ Frauds — 444. 1. Where it is fully set forth by the plaintiff, and it i- When set is admitted by the answer of the defendant, and the piaintitf, and defendant does not insist on the Statute as a bar. * ™' '^ • For, under these circumstances, there can be no fraud. And, although there may indeed be a temp- tation to the defendant to commit perj ury ; yet that is the case with every answer, where the defendant's 220 SPECIFIC PERFORMANCE. Tit. II. Cap. Vlll. 2. Where the reducing it to writing was prevented by iraud. 3. Where partly per- formed. What is deemed part performance. interest is concerned. And as the defendant does not insist on the Statute, he may be deemed to have waived it ; and the rule is, Quisque renuntiare potest juri pro se introducto. (St. § 775 — 777, and notes.) But if the defendant insists on the Statute as a bar, although he confesses the agreement, Courts of Equity will not' enforce it ; for that would be contrary to the express provisions of the Statute. (St. § 757; James v. Smith, (1891) 1 Ch. 384.) 445. 2. Equity will also enforce such a parol agreement where it was intended to be reduced to writing accord- ing to the Statute, but that has been prevented by the fraud of one of the parties ; for the Statute was meant to prevent fraud, and not to be used as an engine of fraud. (St. § 768 ; Rochefoucauld v. Boustead, (1897) 1 Ch. 196.) 446. 3. A parol agreement will also be enforced whether it is an original agreement or a variation of or sub- stitute for a prior written agreement, where it is a completed agreement, and it has been partly carried into execution, and it is shown, by satisfactory evidence, to be clear, definite, and unequivocal in all its terms. (St. § 759, 764, 770, note ; Lester v. Fo.rcroft, 2 Wh. & Tu. 460, et seq. ; Maddison v. Alderson, 8 A. C. 467 ; McManus v. Cooke, 35 C. D. 681 ; Brett's L. C. 290.) 447. With regard to the acts which will be deemed a part performance, so as to take the case out of the operation of the 4th section of the Statute of Frauds, in an action for specific performance of a contract, they should be such as are clearly and exclusively referable to a com- plete agreement, and must have been done with no other view than to perform such agreement (St. § 762; SPECIFIC PERFORMANCE. 221 Maddison v. Alderson, 8 A. C. at p. 479) ; and they Tit. il. ^ ' ' ■' Cap. VIII. must have put the party who has performed them in such a situation that it would be a fraud in the other party, after allowing him to do them, not fully to perform the agreement. (St. § 761 ; Surcome v. Pinnigcr, 3 D. M. & G. 571.) For, the ground on which Courts of Equity enforce specific performance in such cases is, that if the party allowing these acts to be done were not obliged to fulfil the agreement, it would be permitting him to commit a fraud, the very evil which the Statute was designed to prevent. (St. § 759 ; Maddison v. Alderson, 8 A. C. at p. 478.) There must be some cvidentia rei, which means that the act must speak for itself, so as to connect the alleged part performance with the alleged contract, and the part performance must be such a part execution as to change the relative positions of the parties as to the subject-matter of the contract, so that in such an action the defendant is really charged upon the equities resulting from the acts done in execution of the contract, and not (within the mean- ing of the Statute of Frauds) upon the contract itself ; and if such equities were excluded injustice of a kind which the Statute cannot be thought to have had in contemplation would follow. (See judgment of Earl Selborne in Maddison v. Alderson, 8 A. C. 467, 476.) Hence, taking possession of land with the acquiescence of the other party is deemed a part performance (Hodson V. Heuland, (1896) 2 Ch. 428, 434) ; so is expenditure of money in alterations and repairs {Williams v. Evans, L. E. 19 Eq. 547); and so is payment of rent at an increased rate {Nwin v. Fabian, L. E. 1 Ch. 55 ; Millei; dc. v. Sharp, 47 W. E. 266). On the other hand, a depositing, securing, or 222 SPECIFIC PERFORMANCE. '^"- ^j[; paying of the purchase-money will not be deemed such a part performance as will take the case out of the Statute without parol testimony to connect the de- posit, securing, or payment with the alleged contract; for the money can be recovered back. (St. § 760 ; Britain v. Rossiter, 11 Q. B. D. 123.) Nor will the delivery of an abstract of title, giving directions for conveyances, going to view the estate, fixing upon an appraiser to value stock, making valuations or admeasurements, registering conveyances, and acts of the like preliminary or auxiliary and equivocal character, be considered as a part performance of the agreement, so as to take it out of the Statute. (St. § 762 ; Maddison v. Alderson, supra.) Nor will an act which is explicable on other grounds, e.g., the mere holding over by a tenant, unless qualified by the payment of a different rent. {Wills v. Stradling, 3 Ves. 381.) Nor where the act is merely negative or is a condition precedent. {Maddison v. Alderson, 8 A. C. 467 ; Brett's L. C. 291.) Nor is marriage of itself an act of part performance ; for the Statute itself enacts that every agreement in con- sideration of marriage must be in writing. {Caton v. Caton, L. E. 1 Ch. 187.) But if a father, in con- sideration of the marriage of his daughter, makes an oral promise to give his daughter a house, and after the marriage he puts his daughter into possession, and she remains in possession till his death, the possession prevents the Statute of Frauds being set up as a bar to the proof of the parol contract; and it was held that any incumbrance on the house must be paid out of the settlor's estate. {Ungleyy. Ungley, 5 C. D. 887; cf. Synge v. Sijnge, post, par. 450.) 448. SPECIFIC PEKFOBMANCE. 223 XVI. With respect to a parol variation or addition, Tit. II. it is to be observed that evidence of it was totally — ^ ^ inadmissible at Law ; and that the most unequivocal ^ariatbrnOT proofs of it will be required in Equity : and, in additions. general, it was formerly only allowed to be used by a defendant in resisting a specific performance : not by a plaintiff in compelling such performance. The reason of this distinction being that the Statute does not say that a written agreement shall bind, so as to prevent a defendant from insisting on a parol variation thereof, but only that a parol agreement shall not bind. There were, however, exceptions to this doctrine of the inability of a plaintiff to make use of a parol variation. (1.) Where there had been such a part performance of the parol portion of the agreement as would enable the Court to decree a specific performance in the case of an original and independent agreement. (2.) Where an omission had occurred by fraud; and in cases not within the Statute of Frauds, where there had been a ■clear omission by mistake. (3.) Where the defendant set up a parol variation or addition, and the plaintiff sought a specific performance of the contract with such variation or addition. (See St. § 770, note, and 770a; Woolam v. Hearn, 2 Wh. & Tu. 513.) The distinction, however, since the Judicature Act, 1873, s. 24 (7), no longer exists; and where the Statute of Frauds does not create a bar, a plaintiff may now in one and the same action obtain upon parol evidence of mistake, rectification of a written contract, and specific performance of the contract as rectified. {OUey v. Fisher, (1897) 1 Ch. 25 ; Fry, 376.) It may be added here that it is permissible by parol evidence to prove the abandonment of a written contract (Fry, 470) ; and where an alleged contract in writing is sued on, 224 SPECIFIC PERFORMANCE. Tit. II. the defendant may show hy parol evidence that, '- ^ notwithstanding the writing, there was no contract. (Pattle V. Hornibrook, (1897) 1 Ch. 25.) 449. XVII. XVII. It is the practice of Courts of Equity to fnfoiced enforce strict truth in the dealings of one man with another; so that if one man makes a deliberate promise to another, with a view to induce that other to do a particular act, which, relying on such promise, he accordingly does, the promissor shall be compelled to make good his word. (M. E. in Loxley v. Heath, 17 Beav. 532 ; Laver v. Fielder, ' 32 Beav. 1, 12 ; Goverdale Y.Eastwood, L. E. 15 Eq. 121, 131.) Thus, where a marriage takes place on the faith of a promise to make a settlement, or on a written promise to leave property by will, such promise will be enforced. (Alt. V. Alt, 4 Gif. 84 ; Coverdale v. Eastivood, L. E. 15 Eq. 121 ; Synge v. Synge, (1894) 1 Q. B. 466.) And where a person intends to make certain provisions, gifts, or arrangements for the benefit of others, but omits to do so, on the faith of a promise by another person to carry into effect what was so intended, such a promise will be specifically enforced in Equity ; so that where an executor promised a testator that he would pay a legacy, and told the testator he need not put it in his will, the executor was decreed specifically to perform the promise. (St. § 781.) But in all these cases there must be something more than the representation of an intention. And where in an action for specific performance of a contract, part performance is relied on to take the case out of the operation of the 4th section of the Statute of Frauds, such part per- formance must be unequivocally and in its nature referable to the contract, and not capable of explana- tion without supposing such a contract. There must SPECIFIC PERFOKMANCE. 225 be some evidentia rei to connect the alleged part Tit. II. ® ^ Cap. VIII. performance with the alleged agreement. It must be such a part execution as to change the relative positions of the parties as to the subject-matter of the contract. And where a man induced a woman to serve him as his housekeeper without wages for many years, relinquishing other prospects of establishment in life, by a verbal promise to make a will giving her an estate for life in certain land, and afterwards made a will by which he left her a life estate in the land, but the will was void for want of proper attestation, it was held that there was no contract which she could enforce, there being no part performance by her to take the case out of the 4th section of the Statute of Frauds. (Maddison v. Alderson, 8 A. C. 467. See the judgment of Lord Selborne in that case for a statement of the principles of the law of part performance.) 450. XVIII. Equity will not enforce the specific per- xvili. » . J J 1 IT Agreement to lormance or an agreement to borrow or lend a sum borrow. of money, for damages will manifestly meet the case. {Rogers v. Challis, 27 Beav. 175 ; Larios v. Bonany y Gurety, L. E. 5 P. C. 346.) 451. XIX. There are many cases as in the case of XIX. Nega- covenants between landlords and tenants where the meutst agreement is merely negative, and the Court acts merely by injunction; as in the case of a covenant not to dig gravel, and in these cases although the Court acts merely by injunction, it in effect thereby secures specific performance. (See St. § 721.) 452. XX. A person cannot evade performance of his xx. Payment contract by payment of the penalty for the breach of ° ^^^^ ^ ' it. (2 Sp. 254 ; Peachy v. Duke of Somerset, 2 Wh. & Tu. 250 et seq. ; Long v. Bowring, 33 Beav. 585.) 453. ( 226 ) TITLE III. Of Adjustive Equity. CHAPTEE. I. OF ACCOUNT IN GBNEEAL. Tit. III. Under the old practice before the Judicature Acts, '^-^^- ^- in matters of account arising out of equitable claims, Jurisdiction Courts of Equity had universal jurisdiction. (St. § 452.) of Equity. . .... But in matters of account growmg out of privity of contract, and cognizable at Law, Courts of Equity had a general jurisdiction only where there were mutual and complicated accounts, or where the accounts were on one side, but very complicated and intricate, or a remedy peculiar to a Court of Equity was required. But where the accounts, whether receipts or payments, or both, were all on one side, or where there was a single matter on the side of the plaintiff, and mere set-off on the other side, and where, in each case, no complication existed, and no peculiar equitable remedy was sought or required, Courts of Equity declined jurisdiction. (See St. § 454, 459, 511, 519, ; Phillips V. Phillips, 9 Hare, 471.) Some special circumstances are therefore necessary to draw into activity thje remedial interference of a Court of Equity ; and when these exist it will interfere not only in cases arising under contract, but in cases arising under ACCOUNT IN GENERAL. 227 direct or constructive tort as in the case of a person Tit. Ill ^ Cap. I. entering upon an infant's land. St. § 511. A bill for account lay in Equity (1) where the accounts were mutual (2) where the accounts were complicated (3) where there was a fiduciary relation between the parties (4) where there was fraud (5) ■where discovery was required, but this can hardly be the case now (Williams on Account, 1 — 4). There is no right of account against the Crown as agent; and the relation of principal and agent does not of itself entitle the principal to come into Equity for an account if the matter could be fairly tried at Law. {Barry v. Stevens, 31 Beav. 258 ; Blyth v. Whiffin, 27 L. T. 330 ; Wms. on Account, 223, 285.) Under the present practice, by the Judicature Act, 1873 (36 & 37 Vict. e. 66), the taking of partnership or other accounts is assigned to the Chancery Division of the High Court (s. 34 (3)). And the Court or judge may at any stage of the proceedings, in a cause or matter, direct any necessary inquiries or accounts to be made or taken, and give directions as to the mode in which the account is to be taken. (Eules of Court, 1883, Order XXXIII.) 454. Accounts may be divided into open and stated, or Division of settled accounts. 455. An open account is an account of which the Open balance is not struck, or which is not accepted by both parties. 456. A stated or settled account is one that is accepted by Settled both parties. This acceptance need not be expressed, but may be implied from circumstances: as, if no objection is made to the account within a reasonable time. What is a reasonable time, is to be determined by the habit of business; and the usual course is q2 228 ACCOUNT IN GBNEBAL. Tit. III. Cap. I. A stated account is ordinarily a bar to a suit for an account. When it is not. Different modes of relief. Meaning of "surcharge" and ' ' falsify. ' ' Onuspro- iandi. Extent of the liberty to surcharge and Opening settled accounts. required to be followed, unless there are special circumstances, constituting a ground for variation. Between merchants, acquiescence is presumed, under ordinary circumstances, after a lapse of several posts. (St. § 526. Williams on Account, 48.) 457. It is ordinarily a good bar to a suit for an account that the parties have already stated the items and struck the balance ; for, under such circumstances, there is an adequate remedy at Law. But if there is any mistake, omission, accident, or fraud, by which the account stated is vitiated, and the balance is incorrectly fixed, a Court of Equity will interfere : in some cases, by directing the whole account to be opened and taken de novo ; in others, by allowing it to stand, with liberty to the plaintiff to surcharge and falsify, or by simply opening the account to contesta- tion as to one or two items which are specially set forth by the plaintiff in the suit. (St. § 523.) The showing an omission for which credit ought to have been taken is a surcharge ; the proving an item to be wrongly inserted is a falsification. The onus probandi is always on the party having the liberty to surcharge and falsify ; and the liberty extends to the examination, not only of errors of fact, but also of errors in law. (St. § 525.) 458. Generally where an account has been settled, the rule is only to give liberty to surcharge and falsify the account if errors of fact or of law are shown in the account; but where an account has been settled between a trustee and his cestui que trust, under circumstances of fraud or misrepresentation, or undue influence used on the part of the trustee, there is scarcely any length of time that will prevent the Court from opening the account altogether. (St. § 527 ; 2 Sp. 942.) 459. ACCOUNT IN GENERAL. 229 Acquiescence in an account, even for a considerable Tit. III. time, does not of itself establish the fact of the account having been settled. (St. § 528; see Hunter v. Belcher, 2 D. J. & S. 194, 202.) 460. Where, however, the demand would have been Lapse of cognizable at Law, the Courts are governed by the ™ ' Statute of Limitations. But when the demand is purely equitable and the bar of the Statute is inoperative, they are sometimes regulated by the analogy of Law, and sometimes by their own inherent principles, not to entertain stale demands, and not to encourage laches or negligence, from the difficulty of doing entire justice when the transactions have become obscure; and from the consciousness that the repose of titles and the security of property are manifestly promoted by fully acting upon the maxim, Vigilantibus, non dormientibus, jura subvenient. (St. § 529 ; Knox V. Gye, L. R. 5 H. L. 656 ; Re Cross, 20 C. D. 109 ; see supra, par. 33.) 461. The Statute of Limitations (21 Jac. I. c. 16) applies in matters of account even where a fiduciary relation exists between the parties, but not where there is an express trust. {Friend v. Yoimg, (1897) 2 Ch. 421, 427, 432.) The Trustee Act, 1888, however, applies to all The Trustee trusts, whether express or implied, and provides that ° ' in any proceeding against a trustee, or any person claiming through him, except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof, retained or received by the trustee and converted to his use : (a) all rights conferred by any statute of limitations are to be enjoyed as if the trustee or person claiming through him had not been a trustee or person claiming through 230 ACCOUNT IN GENERAL. Tit. III. Cap. I Appropriation of payments. Agent liable to account only to his principal. him : (b) if the proceeding is brought to recover money or other property, and is one to which no statute of limitations appHes, the trustee or person claiming through him may plead lapse of time as a bar to such proceeding, as if the claim had been against him in an action of debt for money had and received, but so that the statute is not to be deemed to run against any beneficiary until his interest is an interest in possession (s. 8). 462. It has been held that lapse of time will not of itself bar an executor of an executor of his right to have an accountof the original testator's estate taken, withaview to ascertain his own testator's liabilities as an account- ing party. (Smith V. 0' Grady, L. E. 3 P. C. 311.) 463. The general law as to the appropriation of payments is this : the debtor is entitled to apply the payments, at the time of making them, in such manner as he thinks fit. In default of appropriation by the debtor, the creditor is entitled to determine the application of the sums paid. And if neither does so by an express act, the Law implies an appropriation of such pay- ments to the items of debt in the order of their date, which is known as the rule in Clayton's case. (See Wms. on Account, 44.) The rule in Clayton's case, however, is not a rigid rule of law, but is based on the intention of the creditor, expressed, implied, or pre- sumed. It does not therefore apply where, from the account rendered or other circumstances, it appears that the creditor did not intend to make any appropriation. {The Mecca, (1897) A. C. 286.) 464. An agent is not liable to account, except to his principal ; and the case of a charity forms no excep- tion to the rule. {Att.-Gen. v. Earl of Chesterfield, 18 Beav. 596.) 465. ( 231 ) CHAPTEE 11. OF ADMINISTRATION. I. In cases of any complication or difficulty, the Tit. III. Court of Chancery had, practically speaking, almost — — an exclusive jurisdiction in the administration of Jio„"'^'^'^'°' assets and the distribution of the residue ; founded on the notion of a constructive trust, or on some auxiliary ground, such as the necessity for a dis- covery formerly existing, or the consideration that the aid, if any, afforded at Common Law or in the Ecclesiastical Court was not plain, adequate, and complete. (St. § 534—543.) By the stat 20 & 21 Vict. c. 77, s. 23, the jurisdiction of the Ecclesiastical Court in the distribution of residues is abolished, and is not to be exercised by the Court of Probate. The administration of the estates of deceased persons, and the execution of trusts, is now assigned to the Chancery Division of the High Court of Justice (36 & 37 Vict. c. 66, s. 34 (3).) 466. II. The former practice of the Court that a person II. Proceed- interested in the residue was entitled as a matter of relduary course to the full decree for administration of the i^S^t^^- estate of a deceased person or of any trust is now completely altered, and all applications for adminis- tration judgments or orders are at the risk of the applicants. {Ke Blake, 29 C. D. 913.) An applicant therefore is now liable to pay the costs of an unnecessary administration. And questions arising 232 ADMINISTRATION. Tit. III. Cap. II. Proceeding by executor or administrator. III. Proceed- ing of creditors. IV. Division of assets. Definition of legal assets. with respect to such an estate or trust may be and should be determined on an originating summons without an administration. (Brett's Lead. Cas. 275 et seq.) The application for assistance is sometimes made by the executor or administrator himself, against the creditors generally, when he finds the affairs of his testator or intestate so much involved that he cannot safely administer the estate except under the direction of the Court. But proceedings for administering the estate, instituted by executors or administrators, are not encouraged, and they will be made to pay the costs of any unnecessary or vexatious proceedings. {Re Cabhurn, 46 L. J. 848.) 467. III. But the aid of the Court is more usually sought by creditors. (St. § 546.) And as a decree in Equity is held of equal dignity and importance with a judg- ment at Law, a decree on a proceeding of this sort, being for the benefit of all the creditors, makes them all creditors by decree, on an equality with creditors by judgment, so as to exclude, from the time of such decree, all preference in favour of the latter. (St. § 547.) As soon as the administration order is made in proceedings on behalf of all the creditors, the executor or administrator is entitled to prevent legal proceedings against him by any of the creditors, except under the direction of the Court by which the decree was made. (St. § 549; Re Barrett, 43 C. D. 70.) 468. IV. Assets (that is, property available for the payment of debts of .a deceased person) are divided into legal and equitable. Legal assets are property which creditors may make available in a Court of Law for the payment of debts, as having devolved ADMINISTRATION. 233 upon or been recoverable by the executor or adminis- Tit. III. •trator, as such, for that purpose, simply by virtue of ^ — '- — his office, even though the property may be of an equitable nature, and he has consequently been obliged to resort to a Court of Equity to vest it in himself. Equitable assets are property which creditors Definition of can only make available in a Court of Equity for assets^ payment of debts, simply by virtue of an express disposition of the property, which must be carried into effect by a Court of Equity. Hence it has been held that an equity of redemption of an equitable interest in a sum of money charged on land is legal assets. So, that it is not the legal or equitable nature of the property, nor the remedy of the executor, but the remedy of the creditor, which determines whether the assets are legal or equitable. (See St. § 551, ■552 ; Burt. Comp. § 734 ; Cook v. Hregson, 3 Drew. 547; Shee\. French, 3 Drew. 716; Mntlowy. Mutloic, 4 D. & J. 539.) 469. The Land Transfer Act, 1897, has, however, made a considerable and important change in the law in this respect, for by making freehold real estate devolve upon the personal representatives rirtute officii it makes all such real estate legal assets. (See Wms. on Legal Eepres. 151.) 470. V. Courts of Equity follow the same rules in regard V. Adminis- to legal assets which are adopted by Courts of Law, leaal assets. and give the same priority to the different classes of creditors which is enjoyed at Law. And Equity recognizes and enforces all antecedent liens, claims, and charges in rem, according to their priority, whether those charges are of a legal or an equitable nature, and whether the assets are legal or equitable. (St. § 553.) And in cases of administration, for the 234 ADMINISTRATION. Tit. III. Cap. II. Administra- tion of equit- able assets. Abatement of debts and legacies. Back rents. Administra- tion of assets of insolvent estates and companies. purpose of settling questions of priority, a breach of trust is treated as a simple contract debt. But equit- able assets, with the exception above mentioned, are distributed pari passu among all the creditors without regard to the priority or dignity of the debts ; and, after they are satisfied, among all the legatees or distributees. But if the fund is insufficient to pay all the debts, all the creditors must abate in propor- tion. And so if the fund, after payment of debts, is insufficient to pay all the legacies, they must, all abate in proportion, unless some priority is specifically given by the testator to some legacies over others. (St. § 554-6 ; 2 Sp. 314.) But as between specific and pecuniary legatees, the loss is to fall wholly on the latter. And charitable legacies now abate, as well as legacies of another kind. (St. § 1180.) And where a devisee of real estate charged with the payment of legacies, or his assigns, have been in possession of the estate, and the estate proves insufficient to satisfy the legacies, the legatees are nevertheless not entitled to back rents. (Garbitt v. Allen; Allen v. Longstaffe, 37 Ch. D. 48.) 471. By the Supreme Court of Judicature Act, 1875 (38 & 89 Vict. c. 77), s. 10, it is enacted (in lieu of the 1st sub-section of section 25 of the principal Act, 36 & 37 Vict. c. 66), that, " in the administration by the Court of the assets of any person who may die after the commencement of this Act, and whose estate may prove to be insufficient for the payment in full of his debts and liabilities, and in the winding up of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding up, the same rules shall prevail and be ADMINISTRATION. 235 observed as to the respective rights of secured and Tit. hi. unsecured creditors, and as to debts and liabilities '- — ' — provable, and as to the valuation of annuities' and future and 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, or out of the assets of any such company, may come in under the decree or order for the administration of such estate, and make such claims against the same as they may respectively be entitled to by virtue of this Act." (Note that now by s. 125 of the Bankruptcy Act, 1883, the estate may be administered in bankruptcy.) The object of s. 10 was to get rid of the rule in Chancery under which a secured creditor could prove for the full amount of his debt and realize his security afterwards, and to put him on the same footing as in bankruptcy where he was only entitled to prove for the balance after realizing or valuing his security. (Lee v. Nuttall, 12 C. D. 61, per James, L. J.) The section has not the effect of introducing into the administration, in the Chancery Division, of an insolvent estate, the provisions of s. 40 of the Bankruptcy Act, 1883. {Re Magcji, 20 C. D. 545 ; Re Williaiiis, Jones v. Williams, 86 Ch. D. 573.) 472. Where one of several residuary legatees or next of kin has received his share of the estate of a testator or intestate, the others cannot call upon him to refund because the assets have been wasted, unless they show that the wasting took place before the share was paid over. {Peterson v. Peterson, L. K. 3 Eq. Ill ; 236 ADMINISTRATION. Tit. III. Cap. II. Operation of the Statute of Limitations as regards debts. Order of priority in payment of aebts. Re Bacon, 42 C. D. 559; Re Winslow, 43 C. D. 249.) 473. Debts actually barred by the Statute of Limitations are not revived by or included in a trust for payment of debts. But where a provision is made, either by will or by deed, for payment of debts out of real estate, then (subject to the provisions of the Trustee Act, 1888, s. 8, supra, par. 392) the statutory time will cease to run in the former case, from the death of the testator, in the latter from the date of the deed ; because the creditor, the cestui que trust, is not to be barred by the neglect of the trustee to do his duty. (Lewin, 591.) The same principle will apply (subject to the same provisions) where personal estate only is assigned in trust for payment of debts. But where personalty is bequeathed for payment of debts, it does not prevent the running of the Statute; because the personalty vests in the executor upon trust for the creditors by act of law so that the words of the will are nugatory. (Jones v. Scott, 4 CI. & Fin. 382 ; Lewin, 592 ; see now Land Transfer Act, 1897.) 474. With regard to the payment of debts in the ad- ministration of an estate, the Court has always observed certain priorities, paying the debts in the following order: — (1) Debts due to the Crown by record or specialty; (2) debts having preference under particular Statutes, as, for instance, income- tax, poor-rates, etc. ; (3) judgments duly registered and unregistered judgments recovered against the personal representatives prior to the order for ad- ministration ; (4) recognizances and statutes, the latter, however, being practically obsolete ; (5) debts by specialty and by simple contract pari passu, including rent, unregistered judgments other than ADMINISTEATION. 237 as above, and dilapidations ; (6) voluntary bonds, Tit. III. unless assigned for value, in which case they would come within the fifth group. (For further information as to priority, see Wms. on Legal Eepres. 104 et seq.) Where, however, the estate is insolvent and is being administered in the Chancery Division, the priority as to rates and wages given by the Preferential Payments in Bankruptcy Act, 1888, applies ; and consequently such rates and wages would, in the case of an insolvent dying after the Act, be paid before all other debts, except the costs of administration. {Re Heywood, Parkington v. Hei/icood, (1897) 2 Ch. 593.) 474 a. \1. Subject to the expression of an intention to the "VI. Order of contrary by the testator or intestate, and as regards tion of mortgage debts to Locke King's Acts (infra), assets '^'^f'^rent are now generally applied in the payment of debts ii payment of , ;, . , , , debts and in the followmg order : — First, the general personal legacies, estate is applied, except expressly or impliedly exempted under the circumstances presently men- tioned. Secondly, lands expressly devised or directed to be sold for the payment of debts. Thirdly, real estate descended. Fourthly, real and personal property devised and bequeathed to particular devisees and legatees, but charged with the payment of debts. (St. § 577.) And an estate devised to a particular devisee, and which by reason of forfeiture by the devisee, under the provisions of the will, descends to the testator's heir-at-law, retains its order ; and does not become liable in priority as a descended estate. {Hurst v. Hurst, 28 C. D. 159.) The rule that descended estates are liable to the payment of debts in priority to the specifically devised estates is founded in the reason of things ; 238 ADMINISTRATION. Tit. III. Cap. II. Personal estate primarily applied, except — for the specific devisee is expressly an object of the testator's regard, whereas the heir only takes by act of law. Fifthly, general pecuniary legacies, pro rata. It was held by Kay, J., in Re Bate, 43 C. D. 600, that the fourth and fifth classes must be transposed. But in Re Stokes, 67 L. T. 223, Stirling, J., refused to be bound by this authority ; and in Re Salt, (1895) 2 Ch. 203, Chitty, J., followed Stirling, J., saying " the reasoning of Stirling, J., in Re Stokes, appears to me to be unanswerable," which is surely the case. Sixthly, specific bequests, specific devises, and residuary devises not charged with debts. The law as to residuary devises being on the same footing as specific devises, and both ranking before pecuniary legatees was settled in Tomkins v. Coulthurst, 1 C. D 626 ; Farquharson v. Floyer, 3 C. D. 109 ; and Hensman v. Fryer, 3 Ch. 420, is only law so far as it asserts the first of these two principles (Brett's L. C. 237). Seventhly, personalty and realty, over which the person whose estate is to be administered has exercised a general power of appointment. {Fleming V. Buchanan, 8 D. M. & G. 976 ; Spurling v. Rochfort, 16 C. D. 18.) Eighthly, paraphernalia of the widow of the deceased, which however must be distinguished from absolute gifts of paraphernal articles since the Married Women's Property Act, 1882. (See Tasker v. Tasker, (1895) P. 1.) 475. A legacy or annuity given generally is payable out of personal estate only. And even when a legacy or annuity is given out of real and personal estate, or where debts are payable out of real as well as out of personal estate, it is the general rule that the personal estate is first to be applied so far as it will extend. The personal estate constitutes the primary and ADMINISTRATION. 239 natural fund for payment of debts and legacies (and Tit. ill. note that the Land Transfer Act, 1897, does not '- — '- — alter the order in which real and personal assets are applicable for payment of debts and legacies, s. 2 (3)), and will first be applied, except in the following cases : 476. 1. When there are express words (Young v. Young, i. In the *26 Beav. 522), or a plain intention of the testator to ^vo^^g express exonerate his personal estate. (Coventry v. Coventry, ]?laiii ™ten- 2 Dr. & Sm. 470.) And to constitute such a plain contrary, intention, directions and expressions which do npt necessarily imply more than that the real estate shall make good the deficiency are not enough ; there must appear upon the whole testamentary disposition, taken together, an intention so expressed as to convince a judicial mind that it was meant not merely to charge the real estate, but so to charge it as to exempt the personal estate. (1 Eop. Leg. by White, 708, 710; 2 Wh. & Tu. 742 ; Brett's L. C. 236 ; Broadbent v. Barrow, 81 C. D. 113.) And (1.) If the real estate is directed to be sold for payment of debts, and the personal estate is expressly bequeathed to legatees, then the personal estate will be exonerated by necessary implication. But neither of these circum- stances, apart from the other and from circumstances affording similar implication of intention, is a sufficient indication of an intention to exonerate the personal estate. For it is most probable that a direction to sell real estate for the payment of debts, where no dispo- sition is made of the personal estate, was intended to be followed only in the event of the personal estate proving insufficient for the purpose of paying the •debts. And, on the other hand, it is most probable that a bequest of personal estate, not by way of specific 240 ADMINISTBATION. Tit. III. legacy, where no provision is made for payment of '- — '■ — debts out of the real estate, was made subject to the payment of debts out of such personal property. (2 Sp. 340, 341, 818, 823 ; 2 Wms. on Executors, 9th ed. (1561) et seq.) (2.) Where the testator gives his personal estate as a whole, and not as a residue, by way of specified legacy to one who is not executor, and another fund is supplied for payment of debts, legacies, and funeral and testamentary expenses, the personal estate is exonerated. (2 Sp. 341 ; Gilbertson V. Gilbertson, 34 Beav. 354; Powell v. Riley, L. E. 12 Eq. 175 ; Broadhent v. Barrow, 31 C. D. 113.) (3.) Where a testator directs the conversion of his real and personal estate, and creates a mixed fund out of the produce, and appropriates that fund for the payment of debts, &c., the two estates comprised in that fund are applicable pro rata. But in such case, if there is no conversion out and out, the surplus (if any) will result as real and personal estate. If a portion only of the personal estate is comprised in the fund, the residue will be chargeable only when that fund fails. (2 Eobbins Mortg. 772 ; 2 Wms. on Executors, 9th ed. (1583) ; Turner, L. J., in Tench v. Cheese, 6 D. M. & G. 467 ; Bright v. Larcher, 3 D. & J. 148 ; Allan v. Oott, L. K. 7 Ch. Ap. 430; Ashworth v. Mann, 34 Ch. D. 391.) (4.) So where a devise is made, subject to a condition of paying off the incumbrances affecting the estate ; or where only the residue of the proceeds of real estate, after payment of debts, is devised. (2 Sp. 334, 342.) But where real estate is devised to a person, upon condition of his paying debts and legacies generally, or charged with them generally, or is given to trustees for those purposes, and the personal estate is disposed of by a general residuary ADMINISTRATION. 241 bequest, these circumstances will not prevent the T'''- m- personal fund being applied in the first instance in '- the satisfaction of those demands. (1 Eop. Leg. by "White, 695.) The rule, however, does not apply to personal estate specifically appropriated for the pay- ment of debts, where the residue of such fund is disposed of. (Trott v. Buchanan, 28 C. D. 446 ; Brett's Lead. Cas. 235 et seq.) And if a testator expressly charges his personal estate with debts of a particular description, namely, with those by simple contract, and then bequeaths that fund, it will not be dis- charged from debts, etc., generally. (1 Eop. Leg. by White, 706.) And as a general rule, no extrinsic evidence can be admitted to ascertain the intention to exonerate ; so that the circumstances of the testator, and the amount of his personal estate and of debts, cannot be taken into consideration. (2 Sp. 337 ; 1 Eop. Leg. by White, 724.) 477. If the personal estate is exonerated from debts and legacies in favour of A., and he dies before the testator, by which event the disposition lapses, the executor or next of kin of the testator who accidentally become entitled to the fund will take it with its primary and natural obligation to discharge the debts and legacies. (1 Eop. Leg. by White, 744 ; Kilford v. Blaney, 81 C. D. 56.) 478. 2. WTien the charge or incumbrance is, in its own 2. Where the nature, real ; as in the case of a jointure ; or of chj^'ge'is veal. pecuniary portions to be raised out of lands by the execution of a power ; or of pecuniary portions to be raised under a marriage settlement, out of lands vested in trustees for the purpose ; or of a devise of lands to a person charged with, or with a direction to pay, particular sums of money, or to trustees in trust to s. K 242 ADMINISTRATION. Tit. III. raise and pay particular sums, as distinguished from '- — ^ — a charge or trust for satisfaction of debts or legacies generally. (1 Eop. Leg. by White, 671.) If there be also a personal covenant to raise the jointure, portions, or sums, such covenant will only be regarded as an additional security, not as a primary one. If there is no personal covenant for the payment of portions, but a covenant to settle lands, and to raise a term of years out of the lands for securing the portions, in that case, even though there be a bond to perform the covenant, the portions are not in any event payable out of the personal estate. Under the law before Locke King's Act (17 & 18 Vict. c. 113, infra, par. 481), a mortgage debt (except in the case mentioned in the next paragraph), whether the lands in mortgage devolved upon the heir-at-law or a general devisee or a particular devisee, was primarily payable out of the general personal estate of the testator, if not made payable by a devisee. Where the mortgaged estate was devised cum onere, it was payable by the devisee. But the expression " subject to the mortgage," in the devise of a mortgaged estate, was sometimes construed as only descriptive of the estate, and not expressive of an intent that the devise was made cum onere. (2 Sp. 819 ; 1 Eop. Leg. by White, 731, 732 ; Bond v. England, 2 K. & J. 44 ; Townshend v. Mostyn, 26 Beav. 72 ; Lady Langdale v. Briggs, 8 D. M. & G. 391.) 479. 3. Where the 3. Where the debt was not contracted by the person contracTedby ^ho died last seised or entitled, but by some other the person i)erson from whom he took it by descent or devise, or who died last '^ seised or by some other person from whom he purchased it, or from whom his vendor derived it. Thus, where a mortgage was created by an ancestor — in other words, ADMINISTEATION. '24'3 if the mortgage debt was an ancestral mortgage — and 1'". III. the mortgaged estate descended upon the heir, there, '- — '- — although the heir entered into a collateral contract or covenant, or gave security for payment of the mort- gage, yet his personal estate would not be liable to be charged, in favour of any person who should derive title by descent under him to the mortgaged premises, subject to the mortgage. But if the heir or devisee or purchaser did anything which raised a new and independent contract between him and the mortgagee (unless it was simply for the purpose of paying off the debts or legacies of the original mortgagor, as such), or had in any other way made the debt his own, the case would be otherwise. (St. § 571 — 576, 1003 ; Swainsoii v. Sivainson, 6 D. M. & G. 648 ; Tonnshend v. Mostyn, 26 Beav. 72 ; Bagot v. Bagot, 34 Beav. 134.) 480. 4. By Locke King's Act (17 & 18 Vict. c. 113), which 4. in certain in effect treats every mortgage as an ancestral mort- persoiTdfes * gage, it is enacted that, " when any person shall, after entitled to the 31st day of December, 1854, die seised of or mortgage entitled to any estate or interest in any land or other 1854. hereditaments which shall, at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, and such person shall not, by his will or deed, or other document, have signified any contrary or other intention, the heir or devisee to whom such land or hereditaments shall descend or be devised shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate or any other real estate of such person, but the land or hereditaments so charged shall, as between the dififerent persons claiming through or under the deceased person, be primarily liable to the payment of r2 244. ADMINISTRATION. Tit. III. all mortgage debts with which the same shall be — '- — charged, every part thereof, according to its value, bearing a proportionate part of the mortgage debts charged on the whole thereof : Provided always that nothing herein contained shall affect or diminish any right of the iifiortgagee on such lands or hereditaments to obtain full payment or satisfaction of his mortgage debt either out of the personal estate of the person so dying as aforesaid, or otherwise : Provided also that nothing herein contained shall affect the rights of any person claiming under or by virtue of any will, deed, or document already made or to be made before the 1st January, 1855." 481. An equitable mortgage by deposit and memorandum is within this Act. {Petnbrooke v. Friend, 1 Johns. & H. 132.) And it extends to copyholds. (Piper v. Piper, 1 Johns. & H. 91.) 482. Leasholds were held to be not within this Act. (In re Wormsley's Estate, 4 Ch. D. 665 ; but were brought within it by an amendment Act, 40 & 41 Vict. c. 34 ; post, par. 486; Drake v. Kershaw, 37 C. D. 674.) And by the same Act the principal Act was extended to liens for unpaid purchase-money (post, par. 486.) Estates tail are excluded from the scope of these Acts. (Re Anthonij, (1893) 3 Ch. 498.) But mortgaged lands within the meaning of the Acts include lands delivered in execution under a writ of elegit to a testator's creditors. (Re Anthony, (1892) 1 Ch. 450.) 483. Various other points connected with the construction of this Act have been decided, but they do not come properly within the scope of a work like the present. 484. Locke King's By the stat. 30 & 31 Vict. c. 69, it is enacted that, ^meu men ,, ^^ ^-^^ Construction of the will of any person who ADMINISTRATION. 245 may die after the 31st day of December, 1867, a Tit. III. ■' J ' > Cap. II. general direction that the debts or that all the debts of the testator shall be paid out of his personal estate shall not be deemed to be a declaration of an intention contrary to or other than the rule established by the said Act, unless such contrary or other intention shall be further declared by words expressly or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate " (s. 1) ; and " in the construction of the said Act and of this Act, the word 'mortgage' shall be deemed to extend to any lien for unpaid purchase-money upon any lands or hereditaments purchased by a testator" (s. 2). 485. That Act did not apply to an intestacy ; but by the stat. 40 & 41 Vict. c. 34, it is enacted that the Stat. 17 & 18 Vict. c. 118, and 30 & 31 Vict. c. 69 (supra, par. 481, 485), "shall, as to any testator or intestate dying after the thirty-first December, one thousand eight hundred and seventy-seven, be held to extend to a testator or intestate dying seised or possessed of or entitled to any land or other heredita- ments of whaterer tenure which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, or any other equitable charge, including any lien for unpaid pur- chase-money ; and the devisee or legatee or heir shall not be entitled to have such sum or sums discharged or satisfied out of any other estate of the testator or intestate unless (in the case of a testator) he shall within the meaning of the said Acts have signified a contrary intention ; and such contrary intention shall not be deemed to be signified by a charge of or direction for payment of debts upon or out of 346 ADMINISTRATION. TjT. III. Cap. II. Non-liability of personalty settled on marriage. Liability of property specifically bequeathed. residuary real and personal estate or residuary real estate." 486. A mere general direction that all debts shall be paid out of personal estate is not therefore deemed a " contrary intention." The contrary intention must refer expressly or by necessary implication to mortgaije debts. {Giles v. True, 33 C. D. 195.) Locke King's Act applies to a mortgaged estate, different portions of which are devised to different persons, and the devisees must contribute according to the value of their respective portions. {In re Newmarch, 9 Ch. D. (Ap.) 12; /;( re Smith, 33 Ch. D. 195.) 486 a. , Where real and personal estate are comprised in the same mortgage, the mortgage debt is not primarily payable out of the realty under Locke King's Act, but must, as between the devisees of the realty and the legatees of the personalty, be borne rateably by the realty and personalty subject thereto. {Trestrail V. Mason, 7 Ch. D. 655 ; Leonino v. Lennino, 10 C. D. 460.) 486 b. Where assets of a testator, consisting of personalty which could be identified, are settled bond fide upon marriage, they cease to be liable to subsequently accruing claims in respect of breaches of covenant by the testator, but of which the parties to the settle- ment had no notice when they executed it. {Dilkes v. Broadmead, 2 D. P. & J. 566.) 487. Property specifically bequeathed is not discharged from its liability to the testator's creditors by the fact that there has come to the hands of the executors personal property of the testator not specifically bequeathed mojre than sufficient to pay his debts, funeral and testamentary expenses, and that the ADMINISTKATION. 247 specifically bequeathed property has been made over Tit. III. by the executor to the specific legatee, whatever may — - — "— be the rights of the specific legatee as regards the executor or residuary legatee. {Daries v. Nicolson, 2 D. & J. 693; Andrew v. Cooper, 45 C. D. 444.) 488. VII. In the order of satisfaction, if the personal VII. Order of -,.,. satisfaction, estate of the decease is not sumcient for all purposes, creditors are preferred to legatees ; because it is to be presumed that a testator means to be just, by desiring his debts to be paid, before he is generous ; and the personal estate, as we have seen, is the natural fund for the payment of debts. Again, specific legatees are preferred to the heir, because the heir, instead of being expressly an object of the testator's regard, like the specific legatee, only takes by act of Law. Specific legatees are also preferred to the devisees of real estate charged with specialties or with the payment of debts, and to residuary devisees of real estate. But general pecuniary legatees are not preferred to residuary devisees of real estate. Nor are specific devisees of lands, not charged with specialties or with the pay- ment of debts, preferred to specific legatees ; but upon failure of the general personal estate, the specific devisees and specific legatees shall each, according to the proportionate value of the benefits conferred on each, contribute to the payment of debts. Where a particular portion of the personal estate is bequeathed, subject to the payment of debts and legacies, there, as between the legatees, the residuary personal estate is exonerated, if there is a residuary bequest, but not where there is no gift of the residue. (St. § 571 ; Brett's L. C. 236.) As between a devisee of a mort- gaged fee simple estate and a specific legatee of 248 ADMINISTRATION. Tit. III. personalty, the devisee shall not have his mortgage — — '■ — '■ — paid by the specific legatee, but shall take the mort- gaged estate cum onere. A fortiori, a specific legatee of a mortgaged leasehold shall not have the mortgage wholly or partly paid off by specific legatees of other leaseholds. (2 Sp. 838.) Subject to the stat. 17 & 18 Vict. c. 113 {supra, par. 481), the devisee of mortgaged premises is preferred to the heir-at-law of descended estates ; because the devisee is evidently an object of the testator's bounty : and a fortiori, the devisee of premises not mortgaged is preferred to the heir-at-law ; and if unincumbered lands and mortgaged lands are both specifically devised, but expressly after payment of all the debts, they are to contribute proportionably in discharge of the mortgage. Where the equities of the legatees and devisees are equal, the Court remains neuter, and suffers the Law to prevail. (See St. § 571 ; 2 Sp. 832, 839, 882.) 489. But subject to the stat. 17 & 18 Vict. c. 113 {supra, par. 481), where the personal assets are suf&cient to pay all the debts and legacies and other charges, there the heir-at-law or devisee, who has been compelled to pay any debt or incumbrance of his ancestor or testator binding on him, is entitled (unless there is some other equity which repels the claim) to have the debt paid out of the personal assets in preference to the residuary legatees or distributees (St. § 571), because such charges are primarily payable out of personal estate. 490. And, subject to the same statute, lands devised for or subject to the payment of debts are also liable to discharge a mortgage, in favour of the heir or devisee to whom the mortgaged lands may belong, unless the mortgaged lands are really devised ADMINISTRATION. 249 •fit/ft oncir. (St. § 571 ; 2 Sp. 822, and see siqwa, Tit. III. par. 479.) 491. "^^- "• Where money was payable under a voluntary bond, the assignee for value of an equitable interest in it was ■entitled to rank as a specialty creditor against the assets of the obligor, though the obligee would not have been so entitled. {Payne v. Mortimer, 4 D. & J. 447.) 492. VIII. There are many eases in which parties, whose Vlll. Mar- right at Law is confined to one fund, would fail to assets?^ ° obtain the satisfaction of their just claims, if left to the course of Law, but are enabled to obtain full satisfaction thereof by means of a particular adjust- ment effected by Courts of Equity, termed the marshalling of assets. This may be defined to be such an arrangement of the different funds of the common debtor of two or more creditors as may satisfy every claim, so far as, without injustice, such assets can be applied in satisfaction thereof, notwith- standing the claims of particular individuals to prior satisfaction out of some one or more of those funds. So that if there are two or more different kinds of funds of the common debtor of several creditors, and at Law one creditor can have recourse to either of those funds, while another creditor is confined to one of them, either the former shall be compelled to seek satisfaction out of that fund to which the latter cannot resort, so far as it will extend, or the latter shall receive compensation out of that fund, in proportion to the amount which the former has unnecessarily taken from that which formed the only source of pay- ment for the latter. (See St. § 558 — 563 ; Aldrich v. Cooper, 1 Wh. & Tu. 36 et seq. ; Gibson v. Seagrim, 20 Beav. 14.) Bat the doctrine of marshalling is 250 ADMINISTBATION. Tit. III. Cap. -II. Marshalling in favour of creditors, or of legatees, or ofaportionist, or of the heir, or of a devisee. Legatees put in the place of mortgagees and specialty and simple contract creditors ; subject to this limitation, that assets are not to be marshalled so as to prejudice another person's rights, so, for example, as to oblige a person who has a lien on a particular property to resign the lien over that property and have recourse to another property. {Webb V. Smith, 30 C. D. 192; Brett's Lead. Cas. 239 et seq.) 493. This plan is adopted as against mortgagees and other creditors of the superior kind, in favour not only of mortgagees and creditors of the superior kind, but also of creditors of an inferior rank, or of legatees (except residuary legatees, where the residue is not exonerated, and legatees whose legacies are given out of a residue), or of portionists, or of the heir-at-law, or of a devisee ; and as against simple contract creditors, in favour of legatees. (See St. § 562 — 566, 570; 2 Sp. 410, 819, 820, 827, 829, 833.) Thus, legatees, with the above exceptions, were permitted to stand in the place of specialty creditors, against the real assets descended, or of a mortgagee who had exhausted the personal estate, whether the mortgaged lands descended to the heir-at-law, or were devised to a devisee subject to the mortgage. And where a testator bequeaths legacies, and devises real estate in trust for, or subject to, payment of debts, and the personal estate is exhausted by creditors, the legatees are entitled to come upon the real estate. (Surtees v. Parkin, 19 Beav. 406 ; Paterson v. Scott, 1 D. M. & G. 531.) And in consequence of the stat. 3 & 4 Wm. IV. c. 104, which makes real estate liable to simple contract debts, though it was subject to a priority in favour of specialty debts, legatees are permitted to stand, in regard to land descended in the place of simple contract creditors who have exhausted the ADMINISTRATION. 251 personal estate, so as to prevent a satisfaction of ''''i"- I'l- the legacies (St. § 566 ; 2 Sp. 830) ; except residuary — ~ — '— legatees, where the residue is not exonerated, and legatees whose legacies are given out of a residue, who have no such equity : for a residue of personal estate implies what remains after satisfying the charges upon it. (2 Sp. 820.) And the equity of but not of legatees will not generally prevail against a devisee 68^4^16 "^lot '^"^^ of the real estate not mortgaged, whether he is a mortgaged. specific or a residuary devisee ; for between persons equally taking by the bounty of the testator, Equity will not interfere, unless the testator has clearly indicated some ground of preference or priority of the one to or over the other. (St. § 565 ; 2 Sp. 820, 829, 830—832.) (a) 494. Where A. has a charge on two estates, and B. has Marshalling a charge on one of them only, B. is entitled to require twollTatTs. that A. should be satisfied out of that estate which is not in mortgage to B. so far as it will extend {Tidd V. Lister, 10 Ha. 157) ; and this general principle is applicable also as against a surety to whom, on payment by him of the debt, A. may have assigned his two securities. (South v. Bloxam, 2 H. & M. 457 ; and see post, par. 652.) 495. The same marshalling of assets takes place as Marshalling as between legacies charged on land and legacies not so legacies charged. (St. § 566.) Formerly by virtue of the j^^^^^^/"" statute 9 Geo. II. c. 36, legacies or bequests to others not so charitable uses, payable out of real estate or charged j\^nii„isti.a. on real estate, or to arise from the sale of real estate, ti"" i" f"^ were, with some exceptions, utterly void (St. § 569) ; charitable and Equity in some cases refused to marshal the '^S*'^'*'''- assets in favour of charitable bequests, when giveil (a) But see supra, par. 47S. ' 2152 ADMINISTRATION. Tit. III. either directly or by way of trust, out of a mixed fund '--— — of real and personal estate, or of personalty connected with realty and pure personalty. Instead of directing the debts and the other legacies to be paid out of the real estate or impure personalty, and reserving the pure personalty to fulfil the charitable bequests, the charity legacies were considered as intended to be charged on the pure personal estate and the proceeds of real estate, or the impure personalty proportionately, like other legacies, just as if no legal objection existed to applying the proceeds of the real estate to the charitable bequests ; and as charity legacies could not legally be charged on the proceeds of real estate or the impure personalty, they were held to fail as to that proportion which would have come to them out of the proceeds of the real estate or the impure personalty. (See St. § 569, 1180.) But a testator had the power of directing the marshalling of his assets in favour of charity legacies by inserting in his will a direction that they were to be paid out of the pure personalty, and the debts and private legacies out of the mixed personalty or realty, and the Court would give effect to such a direction. (See Philanthropic Society v. Kemp, 4 Beav. 581.) And where a testator expressly directed charity legacies to be paid exclusively out of his pure personalty, and the personalty savouring of realty was sufficient for the payment of legacies to individuals, and though the will did not throw the legacies to individuals upon the personalty savouring of realty, yet it did not purport to make those legacies payable at all out of the pure personalty, but gave them without reference to any particular fund, and the pure personalty was not sufficient or only sufficient for the payment of the charity legacies ; the legacies ADMINISTEATION. 253 to individuals were payable out of the personalty Tit. III. savouring of realty, so as to leave the pure personalty ' — '■ — for the payment of the charity legacies. {Robinson v. Geldard, 3 Mac. & G. 735, 747 ; Beaumont v. Oliveria, L. E. 6 Eq. 534 ; 4 Ch. Ap. 309 ; Miles v. Harrison, L. E. 9 Ch. Ap. 316.) 496. But such marshalling in favour of charities will no longer be necessary in the case of persons dying after August 5, 1891, as under the Mortmain Act, 1891, land can now be given by will to charities. (Re Bridger, (1894) 1 Ch. 297. 497. Marshalling of assets takes place as between simple Marshalling ,, J., J J » ii.j.-as between contract creditors and a vendor of real estate, m simple con- respect of his lien for his unpaid purchase-money. *™?* '''^^'l , '^ i jr ./ ^jjji^ a vendor s (St. § 564 a.) And as against an heir taking an Hen. estate purchased, legatees are entitled to have the assets marshalled, so as to give them the benefit of the vendor's lien. (2 Sp. 833.) But the doctrine contained in this paragraph must now be considered with reference to the stat. 17 & 18 Vict. c. 113, as explained and extended by the stats. 30 & 31 Vict. c. 69, and 40 & 41 Vict. c. 34. (See supra, par. 481—486.) 498. On analogous grounds, if a specific legacy has been Redemption pledged or incumbered with mortgages or other of a specific charges by the testator, the specific legatee is entitled ^^s^'^y- to have his legacy redeemed or exonerated ; and if the executor fails to perform that duty, the specific legatee is entitled to compensation out of the general assets. {Bothamley v. Sherson, L. E. 20 Eq. 304.) Indeed, the same principles apply to specific legatees as befoire Locke King's Act applied to devisees, in respect to the redemption of the subject-matter out of the general assets. (St. §566 a.) 499. a54 ADMINISTRATION. Tit. III. Cap. II. Protection of a widow's parapher- nalia. IX. Assets collected in a foreign country by a domestic executor or administrator. Assets received by a foreign executor or administrator, and remitted here. Again, in order to preserve a widow's paraphernalia, which, with the exception of necessary apparel, is liable for her husband's debts after all his other assets, personal and real, including, according to the better opinion, even real estate specifically devised, Equity will oblige creditors who are entitled to pro- ceed against real assets or funds to resort to such assets or funds, or will decree her compensation out of the same. (St. § 568 ; 2 Sp. 821, 829.) But this is now of little importance, since gifts by a husband to his wife become her separate property, and will prob- ably be treated as such, and therefore are not liable for his debts, even in the case of articles of the nature of paraphernalia, unless it can be proved that they were given her as paraphernalia. (See -Re Vansittart, (1893) Q. B. 181 ; Taskerv. Tasker, (1895) P. 1.) 500. IX. With regard to the assets of foreigners, it is to be observed that in general where a domestic executor or administrator collects assets in a foreign country, without any letters of administration taken out or any actual administration accounted for in such foreign country, and brings them home, they will be treated as personal assets to be administered here under the domestic administration. (St. § 583.) 501. If property is received by a foreign executor or administrator abroad, and afterwards remitted here, an executor or administrator appointed here could not assert a claim to it here, either against a person in whose hands it happened to be, or against the foreign executor or administrator. The only mode of reaching it, if necessary, for the purpose of due administration here, would be to require it to be transferred or dis- tributed after the claims against the foreign executor or administrator had been ascertained and settled ADMINISTEATION. 255 abroad. (St. § 584 ; Eames v. Hacon, 18 C. D. 347, Tit. III. ___ Cap. II. 851.) 502. In cases of intestacy, the law of the domicile of the Lex domicilii. deceased determines the fund out of which debts shall be paid ; and in cases of testacy, the intention of the -testator. (St. § 587.) 503. The priorities of creditors are regulated by the domicile of the testator, although the personal assets may be situate and administered in another country. (Wilson V. Lady Dunsany, 18 Beav. 293.) 504. In England claims must be enforced according to Lex fori. the practice and rules of the English Courts. And according to them a creditor, whether from the furthest north or the furthest south, is erltitled to be paid equally with other creditors in the same class. (Judgment of Pearson, J., In re Kloebe, Kannreitther V. Griselbrecht, 28 Ch. D. 175.) 504 a. ( 256 ) Tit. III. Cap. III. Shot. I. I. What may be mortgaged. II. What' amounts to a mortgage, and what to a purchase with right of repurchase. CHAPTEE III. OF MORTGAGES, PLEDGES, AND LIENS. Section I. Of Legal Mortgages of Real Property. I. Genbeally every description of property and every kind of interest in it, which is capable of absolute sale, may be the subject of a legal mortgage or its equivalent in Equity. (2 Sp. 614.) 505. 11. It may be considered as an almost universal rule, that wherever a conveyance or assignment of an estate is originally intended as a security for money, whether this intention appears on the deed itself, or by any other instrument, or even by parol evidence, and whether directly or indirectly, it will ever after be considered in Equity as a mortgage, and therefore redeemable on the usual terms. And if at the time of or as a part of the transaction an express agreement be made between the parties that it shall not be redeemable, or that the right of redemption shall be confined to a particular time or to a particular person or description of persons, such an agreement will be void. (St. § 1018.) The maxim is, once a mortgage always a mortgage {Rice v. Noakes, 48 W. E. 110) ; and a creditor will not be allowed to obtain an advantage by his security beyond his principal, interest and costs, except that as hereinafter stated a right of pre-emp- tion, in case the mortgagor determines to sell, may be MORTGAGES OF REALTY. 257 given to a mortgagee, which right will be construed Tit. III. strictly. (See infra, par. 525.) But, on the other Sect. I. hand, there may be an absolute honCi fide sale and conveyance, with a collateral agreement or condition for re-purchase and re-conveyance on repayment of the purchase-money, and such condition may either be introduced into the agreement for sale at the time, or may be made at a subsequent period. (2 Sp. 619, 6-21 ; Alderson v. White, 2 D. & J. 97.) And a dis- tinction has been taken between a mortgage and what has been called a defeasible purchase. But as to this the authorities are not clear. (See 1 Eobbins Mortg. 20 ; Ex parte Odell, 10 C. D. 76 ; Brett's Lead. Cas. •219 et seq.) 506. If the money paid by the grantee would be a grossly inadequate price for the absolute purchase of the estate ; if he was not let into immediate possession of the estate ; if he accounted for the rents to the grantor, and only retained an amount equivalent to interest ; or if the expense of preparing the deed of conveyance was borne by the grantor ; each of these circumstances has been considered as evidence, show- ing, with more or less cogency, that the conveyance was intended merely by way of security. (2 Sp. 620, 622 ; Eobbins Mortg. 22.) 507. A conveyance will not be deemed a mortgage or held to be a security only, though it be for an under- value, if it is not so gross as to show that necessity or pressure amounting to fraud could alone have induced the vendor to enter into such a contract ; and though the purchaser afterwards declare that he will take the money given as the consideration at any time, with damages for it, or the like ; for if it is not a mortgage in jnincipio, it shall s. s 258 MORTGAGES OF REALTY. Tit. III. not be SO by parol agreement afterwards. (2 Sp. 622, Cap. III. .,.».« Sect. I. 623.) 508. Where land is conveyed upon trust, in case a sum and interest should not be paid by a day named, to sell, and after payment of principal, interest, and costs, to pay over the surplus and re-convey the unsold part of the estate ; and the grantee covenants not to sell without giving six months' notice ; and the grantor covenants to pay the debt and interest ; but there is no proviso for redemption : this is a mere mortgage, and the grantor is entitled to six months' time to redeem. {Bell v. Carter, 17 Beav. 11 ; In re Alison, 11 C. D. 284.) 509. Where the transaction is clearly one of purchase with a right of re-purchase, the time limited ought precisely to be observed ; and there is no principle on which the Court can relieve, if it is not so observed. (2 Sp. 623 ; Bobbins Mortg. 20.) 510. In case the transaction is one of re-purchase, and not of redemption, if the purchaser dies seised, and then the right of re-purchase is exercised, the money will go to the heir, and not to the personal repre- sentatives, as it would in the case of a mortgage. (Bobbins' Mortg.- 23.) 511. Mutuality. In determining whether a transaction is to be con- sidered in the light of a mortgage it must be borne in mind that a mortgage cannot be a mortgage on one side only; it must be mutual. (Bobbins Mortg. 21.) 512. III. Mort- III. 1. So long as the mortgagor continues in fiiua^Zd ^' possession, the mortgagee's estate is not absolute, remedies (a), gyen at Law. For, by stat. 15 & 16 Vict. c. 76, (a) On the subject of powers of mortgagees, see stat. ii & 45 Vict, c. 41, ss. 19—25. MORTGAGES OF REALTY. 259 ss. 219, 220, if an ejectment is brought by the mort- 'I'it. III. gagee, provided no suit is pending in any Court of Sect. I. Equity for redemption or foreclosure, the payment of i. Mort- principal, interest, and costs will, except in certain ^''^''® ^ e^t^t^- cases, be deemed a satisfaction of the mortgage, and the Court may compel the mortgagee to re-convey the estate. But when the mortgagor has ceased to be in possession, and there has been a default in the pay- ment of the money at the stipulated time, the estate of the mortgagee becomes absolute at Law. Yet this estate is in Equity treated as a mere security for the principal and interest and costs properly incurred in i-elation to the mortgage, and follows the nature of the debt. And, although, where the mortgage was in fee, the legal estate formerly descended to the heir of the mortgagee, yet in Equity it was deemed a chattel interest and personal estate, and belonged to the personal representatives as assets. (2 Sp. 296.) Now, however, by virtue of the Conveyancing Act, The Convey- 1881 (44 & 45 Vict. c. 41), s. 30, in cases of death Law"o1'^'" after the 31st of December, 1881, the legal interest in f ™f' '^^ ^'=*' all mortgages, notwithstanding any testamentary dis- position, devolves like a chattel real on the legal personal representatives of the mortgagee. (See lie Pilling's Trusts, 26 C. D. 432.) But copyholds were taken out of this provision by the statute 50 & 51 The Copyhold Yict. c. 73, now replaced by the Copyhold Act, 1894, ^''^' ^^"■ s. 88, which enacts that " the thirtieth section of the Conveyancing and Law of Property Act, 1881, shall not apply to land of copyhold or customary tenure vested in the tenant on the court rolls upon trust or by way of mortgage." 513. 2. As to the mortgagee's rights, he is entitled to 2. Mort- enter into possession of the lands, and to take the S^S^"'^"S s2 260 MORTGAGES OF REALTY. Tit. III. Cap. III. Sect. T. Possession, leases, rents, timber, insurance, receiver, and sale. rents and profits, unless there is some agreement to the contrary; and if the security is insufficient, he may open mines ; but he may not commit waste. He must, however, account for the rents he receives, or, but for his wilful default, might have received, and pay an occupation-rent for such part as he may keep in his own possession. (2 Bobbins Mortg. 801, 804, 1205.) But a mortgagee who has not entered into possession is not entitled to an account of back rents . as against a subsequent mortgagee who has not been in possession. By the Conveyancing Act, 1881, in the case of a mortgage made after the 31st of December, 1881, a mortgagee in possession has, unless prevented by the terms of the mortgage deed, as against prior incumbrancers and the mortgagor, power to make and contract for an agricultural or occupation lease not exceeding twenty-one years, and a building lease not exceeding ninety-nine years, every such lease to take effect in possession not later than twelve months after its date, and to reserve the best rent without fine, except that in the case of a building lease there may be a nominal rent for the first five years. (44 & 45 Vict. c. 41, s. 18.) He may also, when in possession, cut and sell timber and other trees not planted for shelter or ornament which are ripe for cutting. (44 & 45 Vict, c. 41, s. 19.) The mortgagee may also at any time after the date of the mortgage deed, insure and keep insured insurable property, the premiums being a charge upon the property, with interest, like the mortgage money. And he may also, when the mort- gage money has become due, appoint a receiver (see infra, par. 522) of the income of the mortgaged property, and sell or concur in selling (see infra, par. 540) the mortgaged property. (44 & 45 Viet, c, 41, MOETGAGES OF REALTY. 261 s. 19.) The Trustee Act, 1888 (51 & 52 Vict. c. 59), Tit. hi. provides by section 1 (3) that for the purposes of that Act Sect. I. the expression "trustee" shall include a trustee whose TheTrusteo trust arises by construction or implication of law as ' ^^^^' well as an express trustee, which would appear to include a mortgagee in possession, who is a con- structive trustee of the rents and profits of the mortgaged property, so that he would seem to be authorized by that Act to insure buildings, and to renew leaseholds. (See T. A. (1893), ss. 18, 19.) 514. If there are two independent tenements, the mort- gagee may take possession of one of them only, so as to become liable to account for default as to that alone. And so if part only of the property (as the land without the shooting or timber) is on lease, the mortgagee may, by taking the rent, make himself accountable for that alone. (Simmins v. Shirley, 6 C. D. 173.) 514 a. "\Vhere persons who, though in fact mortgagees, enter into possession of the rents and profits in another character (e.g., as purchasers), they are not answerable for what, without wilful default, they might have received. {Parkinson v. Hanhury, L. E. 2 H. L. 1.) 515. A mortgagee is not entitled to obtain any advantage Collateral out of the security beyond his principal, interest and costs. (Eobbins Mortg. 14 — 19.) But there is no rule that a mortgagee may not stipulate for a collateral advantage, if it is fair and reasonable and does not prevent redemption on payment of principal, interest and costs {Santley v. Wilde, (1899) 2 Ch. 474.) 516. A mortgagee can, since the repeal of the usury laws, ^"teJeTAnto"^ stipulate that, if the interest be not paid at the time, principal. it shall be converted into principal. This at least is so as regards mortgages of reversionary interests 262 MORTGAGES OF REALTY. Tit. III. Cap. III. Sect. I. Increase of interest on default in regular payment. Leases to the mort- gagee. "What the mortgagee may add to his debt. Expenditure. (Bobbins Mortg. 132; Clarkson v. Henderson, 14 C. D. 348) ; but interest cannot be turned into principal to the prejudice of subsequent incumbrances of which the mortgagee has notice at the time of the agreement. (Eobbins Mortg. 1164.) 517. A provision that if the interest on the mortgage money be not punctually paid, the rate of interest shall be increased, as for instance, that the mortgagor shall pay 41. per cent, if punctual in payment, but 51. per cent, if after the appointed day, is regarded as in the nature of a penalty against which the Court will grant relief ; but a provision that the rate of interest shall be reduced on punctual payment, or that the mortgagor shall pay interest at 51. per cent., but that if the interest be punctually paid, 41. only shall be payable, is good, and will be enforced if the payment is punctual. (2 Eobbins Mortg. 1157.) (a) 518. Leases made by the mortgagor to the mortgagee at a rent are looked upon with great suspicion, as likely to have originated in the mortgagee having taken advantage of the necessities of the mortgagor to obtain a lease upon terms upon which the property would not have been let except for those necessities. (2 Sp. 632.) But a lease for 21 years at a fair rent has been upheld ; and a lease will not be set aside because of_a subsequent change in the value of the property leased, in the course of years. (2 Eobbins Mortg. 17.) 519. The mortgagee in possession has a right to add to his debt any sums he may be compelled to pay for arrears of rent, or for maintaining the title to the estate, or for re-building the premises, or for necessary (a) As to the validity of an agreement for making a larger amount of principal payable in default of punctual payment, see Thompson v. ffudson, L. R. 4 H. L. 1. MORTGAGES OF REALTY. 263 repairs, or the expenses of renewing a renewable Tit. III. ... Cap. in. leasehold, with interest from the time the sums were Sect. i. advanced. But he cannot, by contract or otherwise, entitle himself to make any charge for management. (2 Sp. 649, 650, 658.) Improvements are not included in just allowances ; and he will not be allowed for them unless they have been done with the consent of, or have been acquiesced in by, the mortgagor. It has been observed that a mortgagee must not improve the mortgagor out of his property. (2 Bobbins Mortg. 1203—1207 ; Shcpard v. Jones, 21 C. D. 469.) 520. A mortgagee is entitled to be allowed all costs Mortgagee's reasonably incurred in relation to the mortgage. {Xatioiiai Provincial Bank of England v. Games, 81 C. D. 582; Brett's Lead. Cas. 191.) In a suit for redemption or foreclosure the mortgagee is entitled to his taxed costs, unless he has forfeited them by mis- conduct. The plaintiff in a suit for redemption pays his own costs, and the mortgagee adds his to his mortgage debt. {Cotterell v. Stratton, L. K. 8 Ch. 295 ; Turner v. Hancock, 20 C. D. 803.) 521. The mortgagee is not allowed to make any charge as Allowance for a receiver, if he himself has personally received the rents, even though it may have been agreed that he should be paid for his trouble in receiving them, and though a receiver might have been employed at the expense of the mortgagor. But a person duly appointed receiver, whose duty it is to get in the rents and profits and pay the necessary outgoings (and, if appointed manager as well, to carry on the business), will be allowed proper remuneration for his trouble. A receiver may be appointed by the Court under stat. 36 & 37 Vict. c. 66, s. 25, when it appears TheJudi- to the Court "just or convenient " (j^nxt, par. 786) ; or i^^j^ ' 264 MORTGAGES OF REALTY. Tit. III. Cap. III. Sect. I. The Convey- ancing Act, 1881. Mortgage of West India estate. Mortgage of' advowson. Pre-emption. by the parties, by the mortgage deed or by a separate deed ; or by the mortgagee under stat. 45 & 46 Vict, c. 41, s. 19. (2 Bobbins Mortg. 919 et seq.) But the receiver must render accounts of all receipts and outgoings. 522. A mortgagee of a West India estate may stipulate that the consignments shall be made to him. And, if out of possession, he may take a certain reward for the 'management of the estate, provided he do not make that employment a condition. But when he tal^es possession, he is not at liberty to charge the mortgagor, whom he has ousted, for the trouble he takes on his own account ; and he cannot charge or stipulate for commission on consignments, insurance, and the like, but stands in the position of the mort- gagee in possession of an English estate. (Bobbins Mortg. 1193.) 523. As a mortgagee is not allowed any advantage beyond securing his principal and interest and costs, it follows that where an advowson is mortgaged, and the living becomes vacant prior to the foreclosure, the mortgagee is compellable in Equity to present the nominee of the mortgagor ; even although nothing but the advowson is mortgaged, and the deed contains a covenant that on any avoidance the mortgagee shall present. But he may pray a sale of the advowson. (Bobbins Mortg. 169, 1016.) 524. The mortgagee is at liberty to stipulate for the option of pre-emption, in case the mortgagor should determine to sell. (2 Sp. 631.) In such case the option of sale must be left to the mortgagor, and there must be no restriction as to the price ; and the only effect of the stipulation is that if the mortgagor wishes to sell the mortgaged property he must give the MORTGAGES OP REALTY. 265 mortgagee the refusal. But a contract by him with the Tit. III. mortgagor at the time of the advance, for the purchase ^ect.^i!' of the mortgaged property at a specified price, in case of default in payment of the mortgage money at the time fixed by the mortgage deed, is void. (1 Bobbins Mortg. 15.) 525. Formerly a mortgagee was not bound to produce his Production of mortgage deed, or indeed any of the deeds in his mortglfer. possession, to the mortgagor or any person claiming under him, until payment of the principal and interest due and costs, though the application for production were made bo7id fide, only to obtain information with a view to paying off the mortgage (2 Sp. 655) ; unless m case of fraud, or for the completion of a sale to which the mortgagee had consented; but that privilege did not extend to the injury of third parties. (2 Bobbins Mortg. 814.) Now,- however, in case of mortgages made after the 31st of December, 1881, mortgagors have power to inspect at their own cost documents of title relating to the mortgaged property, notwithstanding any stipulation to the contrary. (44 & 45 Vict. c. 41, s. 16.) 526. Also, a mortgagee was at liberty to devise the legal Right of estate in the mortgaged property to trustees, instead deviseThe of allowing it to descend, as it did under the old law, P'op^rty. to his heir-at-law ; and the mortgagor must then have borne the costs of obtaining a re-conveyance, although increased by such devise. (2 Sp. 669.) But now, by the Conveyancing Act, 1881, s. 30, on the death after the 31st of December, 1881, of a mortgagee in whom the mortgaged estate or interest of inheritance is vested solely, the same, notwithst'anding any testa- mentary disposition, devolves upon and becomes vested in his personal representatives from time to 266 MOETGAGES OF REALTY. Tit. III. Cap. III. Sect. I. Mortgagee ejecting or refusing tenant. Priority. time with the like powers as if the same were a chattel real, and who are deemed his heirs and assigns within the meaning of all trusts and powers. (44 & 45 Vict. c. 41, s. 30.) Where there is no personal representative, a vesting order will be necessary (see Re Pilli?ig's Trusts, 26 C. D. 432 ; Re Williams, 36 C. D. 231) ; but copyholds are taken out of this provision. (See supra, par. 513.) 527. If a mortgagee in possession turns out or refuses to accept a responsible tenant, he is liable for any loss occasioned thereby. (2 Bobbins Mortg. 805.) 528. Both at Law and in Equity, in the absence of particular circumstances, statutes, judgments, and recognizances, all rank according to their dates. (Bobbins Mortg. 1238.) The priority of equitable charges on real estate, where the equities are equal in all other respects than that of priority of time, rank according to their dates in accordance with the maxim qui prior est tempore potior est jure. (2 Bobbins Mortg. 1237 ; Marsh v. Lee, 2 Wh. & Tu. 107 ; Rice v. Rice, 2 Drewry, 78 ; Farrandv. Yorkshire Banking Co., 40 C. D. 182.) And where money is lent on an equitable mortgage,without notice of a prior equitable agreement affecting the same property, the lender gains no priority over the party claiming under the prior equitable agreement, by getting in the legal estate, after notice that the mortgagor has made himself a trustee for the prior incumbrancer. {Mumford v. Stohwasser, L. B. 18 Eq. 556, post, par. 586.) And the doctrine of priority being gained by notice to the legal holder, does not apply to equitable charges on real estate, or chattels real, or to such personalty as is in Equity real estate, unless the charge be vested in a trustee, or is on trust money being the proceeds of sale of real MORTGAGES OF REALTY. 267 estate, or on a portion raisable out of real estate, or Tit. hi. on any such interest in land vested in trustees as can sect. i. only reach the hands of the beneficiary in the shape of money ; but it has reference to successive assignees in case of assignments of chattels personal, and in such case there is no distinction between legal and equitable incumbrances. (Bobbins Mortg. 1236, 1237.) And where a subsequent incumbrancer who makes an advance without notice of a prior incumbrance obtains a conveyance of the legal estate from a trustee for all incumbrancers, with notice of their rights, or of the legal estate affected with an express trust for the prior incumbrancer after notice of the trust, he will not obtain priority. But subject to the cases just men- tioned, where a subsequent equitable incumbrancer who had, at the time of the advance, no notice of a prior equitable incumbrance, afterwards obtains the legal estate, he obtains priority over the prior equitable incumbrancer, according to the maxim, where the equities are equal the Law must prevail. Thus, if a third mortgagee, who, at the time of lending his money, has no notice of a second mort- gagee, purchases the first legal mortgage, judgment, statute, or recognizance, even after notice of the second mortgage, so as to acquire the legal title, and holds both securities in his own right, Equity will tack Tacki both incumbrances together in his favour ; so that the second mortgagee will not be permitted to redeem the first, without redeeming the third also ; on the principle that where the equities are equal the Law shall prevail. (2 Bobbins Mortg. 1215.) But, if a puisne creditor, by judgment, statute, or recognizance, buys in a prior mortgage, he will not be allowed to tack his judgment to such mortgage, so as to cut out 268 MORTGAGES OF REALTY. Tit. III. or postpone a mesne mortgage ; because he did not Sect. I.' originally advance his money on the immediate credit of the land, and by his judgment, he did not acquire any right in the land, but before the stat. 1 & 2 Vict, c. 110, only a lien on the land, which might or might not be enforced. (2 Bobbins Mortg. 1228 ; Spencer V. Pearson, 24 Beav. 266.) And the better opinion would appear to be that this is still the case, although, under the 18th section of tliat Act, a judgment will operate as a charge on real estate, except so far as the stat. 27 & 28 Vict. c. 112, affects the case. (Bobbins Mortg. 1229 ; but see Fisher Mortg. 566.) Since the latter Act, however, the land is not affected, and no right to tack can arise until the land is actually delivered in execution under a writ of elegit or otherwise, and the judgment is registered in accord- ance with the provisions of that Act. And it would seem that even after delivery creditor the cannot get rid of the mesne incumbrances by getting in a first legal mortgage. (Bobbins, 1230; but see Fisher, 566.) Moreover, the effect of the judgment being only to charge the interest which remains in the debtor, the creditor can have no right, by means of tacking, to cut off an incumbrance which preceded his judgment. {Ex parte WhiteJioiisc, 32 CD. 512; Davis v. Freethy, 24Q.B.D.519.) And, on the other hand, when the land has been actually delivered in execution under that Act, a prior mortgagee cannot, even although he has no notice of the writ of elegit, affect the right of the judgment creditor by tacking to his prior mortgage a charge subsequent to the judgment. (2 Bobbins Mortg. 1351.) 529. Upon the principle that where the equities are equal the Law shall prevail, if a first mortgagee, who Tit. III; Cap. III. Sect '. I. MORTGAGES OF REALTY. 369 has the legal estate, or the better right to call for it, lends to the mortgagor a further sum on another mortgage, or on a statute or judgment, or even if he lends a further sum on note, and it is distinctly agreed at the time to be on the security of the mort- gaged property, he is entitled to retain till both sums are paid, as against a mesne mortgage, of which he had no notice at the time of the further advance. (St. § 417, and note ; 2 Eobbins Mortg. 1230 ; and see infi'd, par. 554.) Indeed, it may be stated more generally, that if a mortgagee has the legal estate, and makes a further advance, without notice of any claim adverse to his title, he is entitled to tack the further advance to the original mortgage as against any such adverse claim. {Young v. Young, L. E. 3 Eq. 801 ; Credland v. Potter, L. E. 10 Ch. 8.) But where a first mortgage extends to future advances, further advances made by the first mortgagee, after notice of the second mortgage, have no priority over the latter, even though the second mortgagee had notice of the nature of the first mortgage (Bolt v. Hopkinson, 9 H. L. C. 514; Bradford Bank v. Briggs, 12 A. C. 29) ; and this applies as well to a case where the prior mort- gagee has covenanted to make the further advances as to a case where the further advances are voluntary. {WestY. Williams, (1899) 1 Ch. 132 ; 68 L. J. Ch. 127.) Where the legal estate has been vested in a building society as mortgagees, and the society is paid off by an equitable mortgagee without notice of prior incum- brances, the legal estate vests in him, and he is entitled to tack on to his legal estate any advances made by him without such notice. (Hosking v. Smith, 13 A. C. 582.) 530. A statute or judgment creditor who is the first 270 MORTGAGES OF REALTY. Tit. in. incumbrancer cannot, by buying a subsequent niort- Seot. I. g^ge, tack it to his statute or judgment, because he did not advance his money on the immediate credit of the land. (2 Sp. 740 ; but see Eobbins Mortg. 1233.) And a prior mortgagee having a bond debt (which per se is not a charge on land), cannot tack it against any intervening incumbrancer of a superior rank between his bond and mortgage, or against other creditors, or even against the mortgagor himself, or a purchaser of the equity of redemption, but only (to avoid circuity of action) against the heir or beneficial devisee. (St. § 418 ; 2 Eobbins Mortg. 1234.) 531. By the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 7, the right of priority or protection by any legal estate, and by tacking, was taken away, But this enactment was repealed as to England as from the date of its operation, except as to anything done thereunder before the commencement of the repealing statute, by the Land Transfer Act, 1875, s. 129. 532. When a puisne mortgagee has bought in a prior incumbrance, but the legal estate is vested in a trustee, or the puisne mortgagee has not obtained the legal title, or he takes in autre droit, the incumbrances are paid in the order of their priority in point of time, according to the maxim. Qui prior est tempore -potiov est in jure, and the principle that he who has the better right to call for the legal title, or for its protection, shall prevail. (St. § 419 ; 2 Sp. 745.) 533. Where a legal mortgage is executed, and the mort- gagee makes proper inquiry for the title deeds, and the mortgagor assigns an apparently satisfactory reason for not handing over or producing the deeds to the mortgagee, the legal mortgage 'will not be postponed to a prior equitable, mortgage, of which MORTGAGES OF REALTY. 371 the legal mortgagee had no knowledge or notice. Tit. ill. Cap III (Agra Bank v. Barrij,"L. R. 7 H. L. 135; OUrer v. Sbo't. I.' Binton, 68 L. J. Ch. 94.) 534. Where a first mortgagee voluntarily, distinctly, and Postpone- unjustifiably, through fraud or gross negligence, allows pi^J^^t. the mortgagor to retain" the title deeds, or allows the g^gee. mortgagor to get possession of them, he will be post- poned to a subsequent mortgagee or purchaser without notice of the prior mortgage. But the onus of proving such fraud or negligence is on the person seeking to postpone the other. (St. § 393 ; and see § 1010.) Mere carelessness or want of prudence will not postpone the legal owner. But he will be postponed if he has made no proper inquiry for the deeds, or has entrusted them to an agent who has been guilty of fraud. {Northern Insurance v. Whipp, 26 C. D. 482 ; Brett's Lead. Gas. 210 ; Clarke v. Palmer, 21 C. D. 124 ; Lloyd's Banking Co. V. Jones, 29 C. D. 221 ; Brocklesby v. Temperance Building Society, (1895) A. C. 173 ; Oliver v. Hinton, 68 L. J. Ch. 94 ; Re Castell and Broum, (1898) 1 Ch. 315.) So if he conceals his mortgage from a person who, as he knows, is about to lend money to the mortgagor, he will be postponed to that person. (St. § 390 ; Wilson V. Wilson, L. R. 14 Eq. 32.) A second incum- brancer of a trust fund, who has given notice of his incumbrance to the trustees of the property, whether he has inquired of them as to the state of the title or not, will be preferred to a prior incumbrancer, who has omitted to give notice of his incumbrance to the trustees. (2 Sp. 764; Brett's L. C. 215.) And if a prior incumbrancer on real estate devised in trust for sale, omits to give notice to the trustee, before notice is given of a subsequent incumbrance, he will be postponed to the subsequent incumbrancer. {Lee v. 272 MOETGAGES OF KEALTY. Tit. hi. Cai'. III. Sect. I. Infants' Relief Act, 1874. Mort- gagee'.s remedies. Foreclosure. Howlett, 2 K. & J. 5R1 ; Arden v. Arden, 29 C. D. 702 ; and see ante, par. 436.) But a mortgagee of an equitable estate in land not directed to be sold has no occasion to give notice to the trustees, either to complete his title as against his mortgagor or to secure to himself his priority against subsequent incumbrancers. {Eooper V. Harrison, 2 K. it J. 86.) And a transferee of an equitable mortgagee need not give notice to a mort- gagor in order to protect his title (Re Richards, 45 C. D. 589, 595), though it will give him an advantage if the mortgagors are trustees. (Brett's L. C. 215.) A declaration of trust of an outstanding term, with a delivery of the deeds creating and continuing the term, has been held to give a subsequent incum- brancer a better equity than a mere declaration of trust taken by a prior incumbrancer. (St. § 521 b, and note ; 2 Sp. 279.) 535. Independently of the stat. 37 & 38 Vict. c. 62 {ante, par. 132a), a charge created by an infant (whether representing himself to be an adult or otherwise) will be postponed to a subsequent mortgage executed' by him when of full age. {Inman v. Inman, L. E. 15 Eq. 260.) 536. 3. As to the remedies of the mortgagee to secure the discharge of the mortgage, a foreclosure is in many cases the appropriate remedy. (St. § 1026.) 537. An intermediate mortgagee is entitled to a fore- closure against the mortgagor and all mortgagees subsequent to himself. {Greenough v. Littler, 15 C. D. 93.) A person entitled to a part only of the mortgage money cannot foreclose a portion of the estate. (2 Sp. 674.) Proceedings for foreclosure may be taken until the mortgage is actually paid off and notwithstanding a decree for redemption ; for the Tit. III. Cap. III. Sect . I. MORTGAGES OF REALTY. 278 mortgagor may make default. (Robbins' Mortg. 1003.) Where a decree of foreclosure is made against an infant heir or devisee of the mortgagor, it is usual to give the infant a day to show cause against the judgment (Mellor v. Porter, 25 C. D. 158) ; but when it is clear that a decree absolute will be more beneficial for the infant, the day to show cause will be dispensed with. {Wolr. d- S. Banking Co. v. George, 24 C. D. 707. 538. A foreclosure suit cannot be brought but within twelve years after the right to bring such suit first accrued, or within twelve years after the last pay- ment of any part of the principal money or interest. (See 3 & 4 Will. IV. c. 27, s. 24 ; 7 Will. IV. & 1 Vict. c. 28 ; 37 & 38 Viet. c. 57, ss. 1, 8, 9 ; 2 Eobbins' Mortg. 1058.) 539. Before the stat. 15 & 16 Vict. c. 86, s. 48, on a Sale. foreclosure suit being instituted, the Court refused, except in a few cases, to decree a sale against the will of the mortgagor ; but under that statute the Court was enabled at the trial, but not on an inter- locutory application, to direct a sale of the mortgaged property instead of a foreclosure. 540. The stat. 15 & 16 Vict. c. 86, s. 48, is repealed by Conveyancing the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 25, '^°*' ^**^' which provides (1) that any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action either for redemption or for sale, or for sale or redemption in the alternative ; and (2) that in any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee or of any person interested either in the mortgage money S. T 274 MORTGAGES OF REALTY. Tit. III. or in the right of redemption, and notwithstanding Sect. I. the dissent of any other person, and notwithstanding that the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of the mortgage money, may, if it thinks fit, direct a sale of the mortgaged property on such terms as it thinks fit, including, if it thinks fit, the deposit in Court of a reasonable sum fixed by the Court, to meet the expenses of sale, and to secure performance of the terms ; (3) in an action brought by a person interested in the right of redemption, and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give security for costs, give the conduct of the sale to any defendant, and give directions as to costs ; (4) the Court may direct a sale without determining the priorities of incum- brancers. The sale may be directed upon an interlocutory application {Wooley v. Colman, 21 C. D. 169), and either in a foreclosure or redemption action at any time before the action is concluded by the decree absolute. (Union Bank of London v. Ingram, 20 C. D. 463.) By sect. 5 of the same Act, provision is made for the discharge of incumbrances on the sale of land. But the Court will not act under this sec- tion where the incumbrance exceeds the value of the land. {Great Northern Railway v. Sanderson, 25 Ch. D. 788.) 540 a. Setting aside Though a power of sale be harshly exercised, and at a time when, having regard to the interests of the mortgagee, he would not have been advised to sell, yet the sale cannot be impeached on that account. (2 Sp. 634, 646.) The power of sale being given to the mortgagee for his own benefit, the Court will not MORTGAGES OF REALTY. 275 interfere unless there is collusion or reckless impro- Tit. III. priety tantamount to fraud, or unless the price is so SkoV; l. low as to be evidence of fraud. {Warner v. Jacob, 20 C. D. 220, 224; and see Martinson v. Clowes, 21 C. D. 861.) But a sale may be set aside as oppressive and irregular when it is made for other purposes than the recovery of his money. (Robertson v. Norris, 1 Gif. 421 ; affirmed on appeal.) And if he sells, after tender of principal and interest (and costs, unless they are unascertained, and the security ample), the sale wUl be set aside, as against him and a purchaser, with notice of the tender. {Jenkins v. Jones, 2 Gif. 99 ; 2 Bobbins' Mortg. 904.) 541. A sale may be made without notice to the mortgagor, and without his concurrence, unless that is made a condition. (2 Sp. 635 ; Neivman v. Selfe, 33 Beav. 522.) 542. But a power to sell without notice may be oppressive under certain circumstances, as in the case of a mort- gage by a client to his solicitor, or a mortgage of a reversion by a necessitous person. (Bobbins' Mortg. 894.) 543. Where notice to the mortgagor is required, a clause that a purchaser should not be required to ascertain that notice had been given, and that the mortgagee's receipt should be a sufficient discharge, does not apply to a case where the purchase is made with actual knowledge that such notice has not been given. (Parkinson v. Hanbury, 1 Dr. & Sm. 143.) 544, The mortgagee who sells and his trustee are not allowed to purchase the mortgaged estate. (Bobbins' Mortg. 906.) But a second mortgagee may buy under a power of sale from the first mortgagee ; and in such case he will obtain, as against the mortgagor, an T 2 276 MORTGAGES OF REALTY. Tit. III. irredeemable title to the property. (Parkinson v. Han- Seot. I.' bury, L. E. 2 H. L. 1 ; Shmv v. Bunny, 2 D. J. & S. 468 ; remedies of Kirkioood v. Thompson, 2 Hem. & M. 392.) 545. A mortgagee who has sold under his power, being a trustee of the surplus proceeds, must render an account of his claims in respect of principal, interest, and costs. (Wms. on Account, 95.) 546. But a mortgagee exercising his power of sale is only so answerable to persons other than the mort- gagor of whose incumbrances or equities he has notice. (Thome v. Heard, (1895) A. C. 495.) 547. Concurrent A mortgagee may use all the remedies belonging to his character of mortgagee, and exercise all the powers that are given to him, as and when he pleases, even concurrently. (2 Bobbins' Mortg. 867.) A power of sale therefore does not interfere with the right of the mortgagee to foreclosure. If a debt is secured by the mortgage of real estate, and also by covenant and collaterally by bond, the mortgagee may pursue all his remedies at the same time and in the same action. (Powlett v. Hill, (1893) 1 Ch. 277.) If he obtains full payment on the bond or covenant, the mortgagor is, by the fact of payment, entitled to redeem the estate, and foreclosure is prevented or not allowed. But if the mortgagee obtains only part payment on the bond or covenant, he may go on with his foreclosure suit, and, giving credit in account for what he has recovered on the bond or covenant, he may foreclose for non-payment of the remainder. On the other hand, if he obtains a foreclosure first, and alleges that the value of the estate is not sufi&cient to satisfy the debt, he is not absolutely precluded from suing on the bond or covenant ; but it is held that by doing so he gives to the mortgagor a renewed right to Tit. III. Cap. III. Seoi r. I. MORTGAGES OF REALTY. 277 redeem, or, in other words, opens the foreclosure : and consequently upon the commencement of an action against the mortgagor on the bond after fore- closure, he may proceed to redeem, and upon payment of the whole debt secured by the mortgage, he is entitled to have the estate back again, and the securities given up. After foreclosure, therefore, the mortgagee may sue on the bond, provided he retains the mortgaged estate in his own power, ready to be redeemed in case the mortgagor should think fit to avail himself of the opening of the foreclosure. (Eobbins' Mortg. 1049; Campbell v. Holyland, 7 C. D. 166.) 548. But if a mortgagee (except under a power of sale) so deals with the mortgaged estate as to render it impossible for him to restore it on full payment, and so deprives himself of the means of letting the mort- gagor redeem, he may not sue to recover the mortgage money. {Palmer v. Hendrie, 27 Beav. 349 ; Rudgc v. Richens, L. E. 8 C. P. 358; Fisher Mortg. 931.) 549. If a mortgagee sells under a power of sale, and the sale does not realise enough to pay off the mortgage debt and interest, he may sue the mortgagor on his covenant for the balance. {Rudge v. Richens, L. E. 8 C. P. 358.) 550. IV. We have already seen that as long as the IV. Mort • 1 1 • 1 i f gagor's estate mortgagor contmues m possession, he has a right or and rights. redemption, even at Laiv, under the stat. 15 & 16 "\'ict. c. 76, ss. 219, 220, if an action of ejectment is brought against him, and no suit for redemption or foreclosure of the mortgage is pending. And until foreclosure, the mortgagor, whether in possession or not, is considered in Equity as substantially the owner of the estate, though his ownership is subject to restrictions for the protection of the mortgagee. 278 MORTGAGES OF REALTY. Tit. III. Hence, if the mortgagee is in possession or receipt Sect. I. of profits, and the mortgagor apphes to be allowed to Equity of redeem, before the right of redemption is lost by a redemption. lapgg of twelve years during which no acknowledg- ment has been made by the mortgagee of the mortgagor's title or of his right of redemption, the mortgagee will then be treated precisely as a trustee for the mortgagor, inasmuch as he will be compelled to re-convey the estate, and account for every kind of profit that he has made in the ordinary way, or which, but for his wilful default, he might have made. (See St. § 1013, 1016, 1028 a ; Wms. on Account, 146 ; Taylor v. Mostyn, 33 C. D. 226 ; Mainland v. Upjohn, 41 C. D. 126.) 551. The common equity of redemption, or ordinary right which the mortgagor has in Equity of redeem- ing the estate, is so inseparable an incident to a mortgage that it cannot be disannexed from such a transaction, or controlled even by an express agree- ment. (St. § 1019 ; Eobbins' Mortg. 14.) And this constitutes an equitable estate in the land, which may be granted, devised, and entailed ; and if entailed, might have been barred by a, fine or recovery, and may now be barred by a disentailing deed, as is liable to a tenancy by the curtesy, and, since the statute 8 & 4 Will. IV. c. 105, s. 2, to dower. (St. § 1015 ; Eobbins' Mortg. 44.) Also the equity of redemption, unless there appears a clear intention of making a new settlement of the mortgaged property, remains subject to the uses or trusts to which the property was subject before the mortgage. And the mere form, which may be affected by inaccuracy or mistake, of reversion of the equity of redemption is often not of itself sufficient to alter the previous title. (2 Smith's MORTGAGES OF REALTY. 279 Eeal and Personal Property, 6th ed. par. 1094 ; Jones Tit. III. V. Davies, 8 C. D. 205.) 552. stoV. L A mortgagor may, by a subsequent deliberate act, extinguish his equity of redemption. Thus, a mort- gagee may purchase the equity of redemption of the mortgagor. (1 Bobbins' Mortg. 633.) But the Court views such a transaction with jealousy. (2 Sp. 654.) And if a mortgagor in embarrassed circumstances conveys his equity of redemption (under pressure for payment of the mortgage debt) for a sum considerably less than its value, the sale will be set aside. {Ford V. Olden, L. E. 3 Eq. 461.) 553. A mortgagor cannot redeem part of the mortgaged property included in the same mortgage. Where therefore two or more distinct properties are included in one mortgage, a,nd for one advance, he cannot redeem one of them without redeeming the whole. {Hall V. Hnvard, 32 C. D. 430.) 553 a. The rule with regard to the consolidation of mort- Consolidation, gages still holds good where the mortgages were made before the Conveyancing Act, 1881, or where the Act is expressly excluded, as is often the case. Consolidation may be described as the right of a mortgagee, having two or more securities from the same mortgagor, to refuse to allow him to redeem one without redeeming the other or others. Where therefore a mortgagee lends two distinct sums to the same mortgagor on two securities, although they be only equitable securities, and although created by two distinct instruments, and at different times, and although the property in one be real and the other personal, the mortgagor or any one claiming under him (even a purchaser of the equity of redemption or mortgagee of the estate sought to be redeemed, who 280 MORTGAGES OF REALTY. Tit. III. ii^ad no notice of the mortgage on the estate not sought Sect. I. to be redeemed), cannot redeem the property comprised in one security without redeeming the other also ; for the person who has the two mortgages has a right to consohdate them, so as to insist on both being paid off together. But the mortgages must be vested in one and the same hand ; and a possibility that they may become so vested is not enough. {Riley v. Hall, 79 L. T. 244.) And where two mortgages of distinct estates originally vested in different mortgagees are transferred to one person, even with notice of a second mortgage, the second mortgagee cannot redeem the one estate without the other. And the transferees of a mortgage made by a person who afterwards becomes bankrupt are entitled to tack a debt insufficiently secured by a previous mortgage of other property made to them directly, though they took the transfer after and with notice of the adjudication. And where the mortgagee has sold one estate under a power of sale, he may apply the balance of the proceeds of that estate, after payment of the mortgage debt upon it, towards payment of the debt upon the other. (St. § 1023, n ; Bobbins' Mortg. 855 ; Brett's L. C. 216; 2 Wh. & Tu. 143'; Vint v. Padget, 2 D. & J. 611 ; Cummins v. Fletcher, 14 C. D. 699 ; Harter v. Colman, 19 C. D. 630 ; Jennings v. Jordan, 6 A. C. 698 ; Pledge v. White, (1896) A. C. 187.) 554. The Convey- But where the mortgages, or one of them, are or is I88l"^s^\': made after the 31st of Dec. 1881, the right of con- solidation is, unless a contrary intention is expressed in the mortgage deeds or one of them, taken away by the Conveyancing Act, 1881, which enacts, by s. 17, " A mortgagor seeking to redeem any one mortgage shall, by virtue of this Act, be entitled to do so without MORTGAGES OF REALTY. 281 paying any money due under any separate mortgage T't. III. Ill' Cap. ITI, made by nim, or by any person through whom he Sect. I. claims, on property other than that comprised in the mortgage -which he seeks to redeem." 554 a. Even a tenant for Ufe, a tenant by the curtesy, a Who may redeem. jointress, a tenant in dower in some cases, a rever- sioner, a remainderman, a judgment creditor, a tenant hy eh'fiit, the Crown or lord of a manor holding by escheat (as regards a mortgage for a term of years, created by a mortgagor who has died without heirs, though not as regards a mortgage in fee, under which the whole estate has passed to the mortgagee, so that there can be no escheat), a tenant for years under a demise by the mortgagor made subsequently to the mortgage, and to which the mortgagee was not a party, in the case of a mortgage created before 1882 (Tarn v. Turner, 39 C. D. 456), and indeed every other person having a legal or equitable interest in or lien on the land, may insist on redeeming the mortgage, in order duly to enforce his claim ; and when any such person does so redeem, he or she becomes sub- stituted to the rights and interests of the original mortgagee. (Eobbins" Mortg. 692 ct seq.) But a tenant for life is not liable to be redeemed by remaindermen without his consent. (Front v. Cock, (1896) 2 Ch. 808.) And, as a general rule, a cestui que trust must redeem through his trustee ; and no creditor or annuitant or legatee of the mortgagor, who has not a specific security upon the property mortgaged, can redeem, though the mortgaged pro- perty would, if redeemed, be applied in a course of administration in discharge of his claims. (St. § 1023 ; 1 Bobbins' Mortg. 699 ; Mildred v. Austen, L. E. 8 Eq. 220 ; Dawson v. Bank of Whitehaven, 6 Ch. D. 218.) Tit. III. Cap. III. Sec'1 ■. I. 282 MOKTGAGBS OF REALTY. And it would seem that a judgment creditor who has not issued execution has a right to redeem. (Eobbins' Mortg. 696 ; Cork v. Rvssell, L. E. 13 Eq. 210.) As regards the right to redeem, there is no substantial difference between a mortgage in the form of a trust for sale and a mortgage in the ordinary form. {Wicks V. Scrivens, 1 Johns. & H. 215 ; Kirkwoodv. Thompson 2 Hem. & M. 392. 555. Where the owner of leasehold property first mort- gaged it by demise, and then sublet it, and the mortgagee refused to recognise the tenant, it was held that the tenant was entitled to redeem. (Tarn V. Turner, 39 C. D. 456.) 555 a. A purchaser of an equity of redemption cannot redeem an existing mortgage untill his purchase is completed. (2 Sp. 668.) 556. Obligation for Where the mortgagee is not, and has not been, in transfer possession, it is enacted by the Conveyancing Act, reconveying. 1881, s. 15, that " where a mortgagee is entitled to (Jonveyancing redeem, he shall, by virtue of this Act, have power to Property Act, require the mortgagee instead of reconveying, and on ^®^^- the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged pro- perty to any third person as the mortgagor directs, and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly." And this enactment takes effect notwithstanding any stipulation to the Conveyancing contrary. And the Conveyancing Act, 1882 (45 & 46 Act, 1882. ^.^^^ ^ g^^^ ^^ ^^^ ^^^^^^ ^^^^^ ^^ ^^^ ^.^^^ ^^ ^^^ mortgagor under section fifteen of the Conveyancing Act, 1881, to require a mortgagee, instead of recon- veying, to assign the mortgage debt and convey the mortgaged property to a third person, shall belong to and be capable of being enforced by each incumbrancer, MORTGAGES OF REALTY. 288 or by the mortgagor, notwithstanding any intermediate Tit. hi. incumbrance ; but a requisition of an incumbrancer Seot. I. shall prevail over a requisition of the mortgagor, and, as between incumbrancers, a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer." {Teevan v. Smith, 20 C. D. 724 ; AUerson v. Elgey, 26 C. D. 567 ; Ercritt v. Automatic, dc, (1892) 3 Ch. 506.) 556 a. Every person who has a right to redeem the mort- gage may redeem any prior incumbrancer, on payment of principal, interest, and costs due to him ; the redeeming party being also liable to be redeemed by those below him, who are all liable to be redeemed by the mortgagor. (2 Sp. 665.) 557. A mortgagee in possession, or in receipt of the Accounts. rents and profits of the mortgaged property, is bound to account for all he has received, or which, but for his wilful neglect or default, he might have received. (Wms. on Account, 146.) But he is not bound to account for any profit derived from a contract or dealing merely collateral to the mortgage, if such advantage is fair and reasonable, and does not prevent redemption on payment of principal, interest, and costs. {Santley v. Wilde, (1899) 1 Ch. 747.) Thus, where the mortgagees of a public-house entered into possession, and let the house to tenants under agree- ments binding them to purchase their beer from the mortgagees, it was held that the mortgagees were not bound to account for the profits, which were con- siderable, derived from the sale of beer to the tenants, although they were liable to account for the increased rent they might have obtained from tenants under no such restriction as to purchasing their beer. {White v. City of London Brewery, 39 C. D. 559.) And in 284 MORTGAGES OF REALTY. Tit. III. Cap. III. Sect. I. Annual rests. Possession . settling the accounts between the mortgagor and mortgagee, where the latter has been in possession, sometimes annual rests are made, so that the excess of rent or value beyond the interest may be applied in liquidation of the principal. (Wms. on Account, 155.) As a general rule, rests are not made where the interest of the mortgage is in arrear at the time when the mortgagee takes possession. But where there is a special reason for making annual rests, as where the rents and profits considerably exceed the interest, rests will be directed. (Ibid.) The fact that no arrears of interest are due at the time when the mortgagee enters into possession, when taken with other circumstances, may be a ground for directing rests ; or if no interest is due, or if the interest in arrear is converted in principal, there, and in such cases, annual rests will be made. (St. § 1016 a ; Scholefield v. Lockwood (No. 3), 32 Beav. 439.) But whether interest is in arrear or not, rests will not generally be directed where the mortgagee has been driven to take possession in order to defend his security. (Wms. on Account, 158.) Annual rests will equally be directed in respect of the occupation rent fixed on a mortgagee in possession, as in respect of rents received. (2 Sp. 811.) 558. The mortgagor is not entitled to the possession, in respect of his equitable estate, unless there is some special agreement to that effect, but he holds it solely at the will of the mortgagee, who may at any time, without giving any prior notice, recover the same by ejectment against him, unless he is ready to pay principal, interest, and costs, or against his tenants under a tenancy created subsequently to the mortgage ; and he is not even entitled to reap the crop. But so MORTGAGES OF REALTY. 385 long as he continues in possession by the permission Trr. III. of the mortgagee, he is entitled to take the rents and Sect. I. profits in his own right, without rendering any account Rents. whatever to the mortgagee, though the mortgage property may have become an insufficient security. But he will not be permitted to do anything which Waste. may diminish the security of the mortgagee. Yet he may cut down timber when in possession, unless the land alone would be a scanty security. (1 Bobbins' Mortg. 667, 669.) 559. By the Judicature Act, 1873 (36 & 37 Vict. c. 66), Suits for s. 25 (5), " a mortgagor entitled for the time being to [anTby™ °^ the possession or receipt of the rents and profits of mortgagors. any land as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof, shall have been given by the mort- gagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect 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." The mortgagor must give notice to the mortgagee before commencing proceedings under this section, but need not join him as a party. {Fairclough v. Marshall, 4 Ex. D. 37 ; Bobbins' Mortg. 673.) 560. With respect to mortgages made after the 31st Leases by December, 1881, even if in pursuance of an agreement ^"gefsfon! " prior to that date, and to mortgages made before that date, to which the Conveyancing Act, 1881, is made to apply by agreement which does not prejudice the mortgagees who are not parties to it, mortgagors in possession have, as against every incumbrancer, power to make and contract for (1) agricultural or occupation 286 MORTGAGES OP BEALTY. Tit. III. Cap. III. Seci ■. I. V. Mortgage of leasehold- Mortgage of renewable leasehold. leases not exceeding twenty-one years, and (2) building leases not exceeding ninety-nine years, to take effect in possession not later than twelve calendar months after the date of the lease, a counterpart of which must be delivered by the mortgagor to the mortgagee, or, where more than one, to the first mortgagee, within one calendar month, and by the lessee to the lessor, the building leases to be in consideration of the erection of new, improved, or repaired buildings within not more than five years, and may be at a nominal rent within that time ; provided that no other lease can be made than such as could have been made by the mortgagor or mortgagee with the consent of all incumbrancers if the Act had not passed. (44 & 45 Vict. c. 41, s. 18.) 561. V. Where a mortgage is by assignment of a lease- hold interest, the mortgagee (unless there is a special provision to the contrary), as between the mortgagor and the mortgagee, takes the leasehold subject to the covenants and obligations of the original lease. But' if an underlease, instead of an assignment, is taken, the mortgagee is protected. (Bobbins' Mortg. 155.) 562. A mortgage, whether legal or equitable, of leasehold premises, includes the goodwill of a -trade followed on the premises, and the fixtures. (2 Sp. 637 ; Bobbins' Mortg. 118.) 563. Neither the mortgagor nor the mortgagee of a renewable leasehold is. bound to renew, unless it is a part of his contract to do so. The mortgagee, how- ever, has a right to renew and to charge the mortgaged property with the costs of renewal and interest at the same rate as on the original principal ; and when freeholds and leaseholds are mortgaged together, a Tit. 111. Gap. Ill, Seoi •. I. MORTGAGES OF REALTY. 387 provision charging the costs of renewal with interest on the whole of the mortgaged property should be inserted in the mortgage deed. If the mortgagor renews, the new lease will be subject in equity to the same mortgage as the old lease. And if, instead of renewing, the mortgagor purchases the reversion, it will be subject in equity to the mortgage. If a renew- able leasehold is assigned by way of mortgage, an agreement between the landlord and the mortgagee, without the concurrence of the mortgagor, will not bind the mortgagor. (2 Sp. 650 ; 1 Bobbins' Mortg. 165 ; 2 ibid. 949.) 564. VI. Where the relation of mortgagor and mortgagee vi. Rent subsists, it is hardly possible that an agreement under interest" which the mortgagee is to hold the land at a rent as an equivalent for interest can be supported ; it being considered, independently of the question as to usury in cases under the old law, to be against public policy that such agreements should be per- mitted to take place between parties, one of whom has an obvious advantage over the other. (2 Sp. 617.) 565. VII. A solicitor may take a mortgage security from vil. Mort- his client for costs. Formerly such a mortgage was frats. °' restricted to costs already due, but now it may extend to future costs, charges, and disbursements to be ascertained by taxation or otherwise (33 & 34 Vict, c. 28, s. 16 ; 44 & 45 Vict. c. 44, s. 5) ; and the solicitor may commence a foreclosure action without having first had his bill taxed. But if a mortgage by a client to his solicitor contains unusual clauses they will not he enforced, unless specially pointed out to the client. (2 Sp. 630 ; Bobbins' Mortg. 609, 1145.) 566. Formerly a solicitor mortgagee was only entitled Tit. III. Cap. III. Sect. I. VIII. Con- rej'ance in trust to sell. 288 MORTGAGES OF REALTY. to out-of-pocket expenses, and not to profit costs ; but under the Mortgagees' Legal Costs Act, 1895, he may now charge his ordinary costs for acting in, negotiating and completing the mortgage. 566 a. VIII. Lands are sometimes conveyed by way of security to a third person agreed upon by the borrower and a lender, or to the lender himself, in trust, upon non-payment of the loan at the appointed time, and usually upon notice, to sell the estate, to satisfy the debt out of the proceeds. This is a species of mortgage. It is not such a trust for sale as the mortgagor can enforce ; because the discretion as to selling or not is in the mortgagee alone. On the other hand, the mortgagee cannot foreclose, but is limited to his remedy by sale. And in this case, though the mortgagor covenant to join, the purchaser cannot require that he should join in the conveyance. (2 Sp. 634 ; Locking v. Parker, L. E. 8 Ch. 30 ; Re Alison 11 C. D. 284.) 567. IX. Defective IX. Where a person affects to make a mortgage, but mortgage. , . , . e> & ' the deed is defective, further assurance will be enforced in Equity. (2 Sp. 639.) If a man, after making a defective mortgage to one person, makes a mortgage by an assurance which is effectual to give a perfect title to another person, the second will prevail, if he lent his money on the security of the land, and without notice ; because he has equal equity and the legal title. And where all the incumbrances are equitable and the first is defective, no help will be afforded against a subsequent incumbrance. (2 Sp. 639.) But (so far at least as the stat. 1 Vict. c. 110 does not alter the case) a defective mortgage would prevail against a mere subsequent judgment creditor, who is in the nature of a volunteer as regards his lien MORTGAGES OF REALTY. 289 on the land. (2 Sp. 639, 640 ; 2 Bobbins' Mortg. Tir. iii. rr^n s cna Gap. III. 793.) 568. Sect. I. X. A mortgagee, whose monej' is not paid on the x. Payment day appointed by the proviso, is entitled to six months' °f '^^<^^*' notice previously to its being paid. If the money is not tendered on the day of the expiration of the notice, the mortgagee is entitled to another six months' notice. If the mortgagee refuse to receive his money after due notice, interest will cease from the time of the tender, provided the mortgagor keep the money continually ready and make no profit by it. The first mortgagee is bound to accept payment of his principal, interest, and costs when tendered by a second mortgagee, and thereupon to convey to him the estate, whether the tender be made with or without the privity of the mortgagor ; and, generally speaking, he is justified in accepting payment from, and transferring the legal estate to, any person who tenders the principal, interest, and costs due to him, that person being interested in the equity of redemption. (1 Bobbins' Mortg. 710.) 569. But a mortgagee, after his debt is paid off, is in a fiduciary position towards the mortgagor with respect to the satisfied security ; and he is bound to take care that the security gets back to the mortgagor or to some one to whom he authorises it to be re-conveyed, in other words he is bound to see that the terms of the proviso for re-conveyance are literally complied with. Thus, where a customer of a bank borrowed money of the bank, and handed to the bank as security a transfer of railway stock by himself and two other persons, his co-trustees, and the bank, on repayment by the customer, instead of re-transferring the stock to the three co-trustees, transferred it to a 290 MORTGAGES OF REALTY. Tit. III. nominee of the customer, whereby the stock was lost Sect. I. to the trust, it was held that the bank were liable for the value of the stock at the time when they transferred it to the customer's nominee. {Magnus v. Queensland National Bank, 36 Ch. D. 25.) 569 a. Where the death of the mortgagee took place before the 1st of January, 1882, and the condition is for payment to the mortgagee, his heirs or his executors, the mortgagor, after the death of the mortgagee and before forfeiture, may pay either the heir or the executor, as he pleases, but after forfeiture the money is to be paid to the executor ; and even if paid to the heir before forfeiture, it belongs to the executor ; because in Equity a mortgage debt is considered as .part of the mortgagee's personalty ; the money came from that source, and is to be returned to it. (See 2 Sp. 650, 651.) 570. But in case of the death of the mortgagee on or after the 1st of January, 1882, the legal interest in every mortgage, notwithstanding a testamentary dis- position, devolves like a chattel real on his legal personal representatives, who are deemed his heirs and assigns within the meaning of all trusts and powers (44 &' 45 Vict. c. 41, s. 30), except in the case of copyholds. (See supra, par. 513.) 570 a. When an agreement for a mortgage contains a stipulation that the principal money shall not be called in for a certain time, the Court, in settling such an agreement, will make the postponement conditional on punctual payment of interest, and also, if the property is leasehold, on the performance of the covenants. {Seaton v. Twyfqrd, L. E. 11 Eq. 591.) 571. If a mortgagor pays off the principal to the solicitors Tit. III. Cap, III. Sect. I. MORTGAGES OF REALTY. 291 of the mortgagee, instead of the mortgagee himself, without ascertaining that they are authorised to re- ceive it, he does it at his own risk. So that if the solicitors misappropriate the money, the mortgagor will remain liable to the mortgagee or his assignee. ( nithington v. Tate, L. E. 4 Ch. 288.) 572. And, on the same principle, if the mortgagor has not received the money, the mortgagee cannot main- tain the validity of the mortgage deed by showing that he paid the money to the mortgagor's solicitor, unless the mortgagee can show that the mortgagor's solicitor was expressly authorised to receive the money by the mortgagor. And the mere fact that the mort- gagor's solicitor was in possession of a mortgage deed executed by the mortgagor did not authorise the mort- gagor's sohcitor to receive the money for the mortgagor. {Ex parte Swinhanks ; In re Shanks, 11 C. D. 525 ; Ex parte Butters, 14 C. D. 265 ; Gordon v. James, 30 C. D. 249.) 572 a. But where the consideration is to be paid after the Receipt in dsGcL or 31st of December, 1881, the law is altered by the indorsed Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 56, ^^^^^^^^^nt which enacts, "Where a solicitor produces a deed to solicitor. having in the body thereof, or indorsed thereon, a receipt for consideration money or other consideration, the deed being executed or the indorsed receipt being signed by the person entitled to give a receipt for that consideration, the deed shall be suf&cient authority to the person liable to give or pay the same for his paying or giving the same to the solicitor, without the solicitor producing any separate or other direction or authority in that behalf from the person who executed or signed the deed or receipt." But the solicitor must be acting for such last-mentioned 2 292 MORTGAGES OP REALTY. Tit. III. 'Cap. III. Sect. I. Statutory- mortgage. XL Welsh mortgage. XII. Mort- gage of wife's estate. person. {Day v. Woolwich Equitable Building Society, 40 C. D. 491.) And the Trustee Act, 1893, s. 17, empowers trustees to appoint a solicitor to receive trust moneys, by permitting him to produce a deed having such a receipt. 572 b. With respect to statutory mortgages, see the Con- veyancing Act, 1881 (44 & 45 Viet. c. 41), ss. 26-29, and also Schedule III. Part I. of that Act. 572 C. XI. There is a kind of mortgage called a Welsh Mortgage, which, however, has now fallen into disuse, in which there is no condition or proviso for repay- ment at any time. The agreement is that the mortgagee, to whom the estate is conveyed, shall receive the rents till his debt is paid ; and in such case the mortgagor and his representatives are at liberty to redeem at any time. (1 Bobbins' Mortg. 26.) 573. XII. Where a husband is seised ,/«»•« uxoris, and he and his wife join in a mortgage, reserving the equity of redemption to him and his heirs, he has the equity of redemption jure uxoris as he before had the legal estate, unless it is evident that the transaction is more than a mere mortgage, or the limitation of the estate is perfectly distinct from the equity of redemption. Huntingdon v. Huntingdon, 2 Lead. Cas. Eq. 2nd ed. 388 et seq. But at the same time the intention to alter the previous title may be manifested by the language of the proviso itself, and there is no necessity for an express declaration or a recital to that effect. {Atkinson v. Smith, 3 D. & J. 186, 192. Jones v. Davies, 8 C. D. 205. See infra, par. 575.) 574. Where a mortgage is made of the wife's lands, to secure money borrowed by the husband — and, in the absence of evidence to the contrary, the loan will be MORTGAGES OF REALTY. 298 presumed to have been obtained for his purposes — his Tit. III. estate, especially where he covenants to pay the debt, Sect. I. is made to pay the mortgage-money, at the instance of the wife or of the heir of the wife ; although the husband may have paid off the mortgage, and taken an assignment in trust for himself, his executors, &c., and though by consequence legacies given by the husband may be defeated : for the wife joining in the security does not make it less the debt of the husband, and her estate is considered as surety only for the debt. (Kinnoul v. Money, 3 Swanst. 208.) And although since the Married Women's Property Act, 1882, there is no longer any need for the husband to join in a mortgage by his wife of her property, and therefore there may be no presumption that the mortgage was made for the husband's purposes, yet parol evidence is admissible to show that this was so. {Re Marlborough, Davis V. Whitehead, (1894) 2 Ch. 133 ; Paget v. Paget, (1898) 1 Ch. 470.) 575. XIII. After notice of a second mortgage, the first XIII. First mortgagee, if in possession, is answerable to the answerable to second for the rents and profits he has received or second- might have received. And a mortgagee cannot, by relinquishing possession, determine his liability ; and if he enters, and then permits the mortgagor to receive the rents, he will be accountable, as mortgagee in possession, to a subsequent incumbrancer, of whose incumbrance he had notice. (Robbins' Mortg. 802; Ep Prytherch, 42 C. D. 590.) 576. XIV. The mortgagee, or those claiming under him, XIV. Title. cannot dispute the title of the mortgagor, and is bound to re-convey to the mortgagor, or those deriving title under him, whether the title is good or bad. (2 Bobbins' Mortg. 1409.) 577. 294 MORTGAGES OF BEALTY. Tit. III. XV. An assignment of a mortgage' is an assignment Sf.ct. I. of the debt, but notice should be given to the mort- XV. Assign- gagor without delay. (Eobbins' Mortg. 826, 821.) ment of movt- -g^^^ before an assignment is taken, inquiry should be gage, ° -I ./ made of the mortgagor as to the sum due on the mortgage ; for in an assignment without the con- currence of the mortgagor, the assignee takes subject to the accounts and equities between the mortgagor and mortgagee although no receipt for any part which may have been paid off, of the mortgage debt, be indorsed on the mortgage deed, and the mortgagor is not bound by the amount appearing due in the assignment. The concurrence of the mortgagor should therefore be obtained when possible. (2 Bobbins' Mortg. 819, 821.) 578. If a mortgagee in possession assigns over his mortgage without the assent of the mortgagor, the mortgagee is still bound to answer for the profits both before and after the assignment, though assigned only for his own debt. But this does not apply where the transfer is made by order of the Court, as in an ' administration action. {Hall v. Hcward, 32 C. D. 430.) 579. The assignee of a mortgagee cannot stand in any different character or hold any different position,, either better or worse, from that of the assignor, himself. {Walker v. Jones, L. B. 1 P. C. 50.) 580, Where therefore a mortgagee obtains a mortgage without consideration, and transfers it to a third -- person, who has no notice of the want of consideration, neither the transferor nor the transferee can enforce' it, but it will be ordered to be cancelled. {Parker- V. Clarke, dOBeav.Si.) 581. If a person pays off a first mortgage, and takes the- MORTGAGES OF BEALTY. 295 deeds and a new mortgage without notice of a second ^it. Ill equitable mortgage, he will be entitled to priority over Sect, r. the second equitable mortgagee who had notice of the first mortgage. {Pease v. Jackson, L. E. 3 Ch. 576. And see London d- Comity Bank v. Radcliffe, 6 A. C. 722.) 582. XVI. The purchaser of a mortgage, as a general rule, ^^l- ^'^^^ . , -a purchaser of has a right to claim, agamst the mortgagor, and all a mortgage deriving title under him, the full amount of what cfaim."^ is due on the security, whatever he may have given ; for as he takes the risk, so he is allowed the gain, if any. (2 Eobbins' Mortg. 823.) But an heir, a trustee, an agent, an executor, or other person in a fiduciary position, can only claim the amount which he gave for it ; unless he has bought in that security to protect one of his own. (Eobbins' Mortg. 824, 825.) 583. XVII. A gift of a mortgage security is a gift of all XVII. Gift • 1 11 -i of mortgage the testator s interest in the money and the security, security. (Bobbins' Mortg. 847 ; 2 Sp. 655.) 584. XVIII. A mortgagee of realty, whose mortgage is XVIII. DgV1S6 DV fl redeemable, has both a legal interest and a beneficial mortgagee, interest, the legal interest being real estate in a mortgage of realty, and the beneficial interest being personal estate. Formerly, in the absence of a contrary disposition in his will, the legal interest passed to his heir-at-law as real estate, and the beneficial interest devolved on his personal represen- tatives as part of his personalty, the heir-at-law becoming a trustee of the legal interest for the personal representatives. And in cases of death before the 1st of January, 1882, where a mortgagee devised all his real estates, whatsoever and whereso- ever, the legal estate in mortgaged premises passed by the will, unless a different intention appeared from 296 MORTGAGES OF REALTY. Tit. III. Cap. III. Sect •. I. XIX. Right of purchaser of equity o redemption. Eight of second equit- able mort- XX. Extin- guishment of the mortgage debt by cancelling. the context. The beneficial interest, however, did not pass under such a devise. The decisions as to what words passed the legal and beneficial interest in different cases are somewhat conflicting. (See 2 Bobbins' Mortg. 833.) But this question is now of comparatively small importance, since, in cases of death on or after the 1st of January, 1882, the legal estate in the mortgaged property vests, notwith- standing any testamentary disposition; in the personal representatives of the mortgagee (44 & 45 Vict. c. 41, s. 30), except in the case "of copyholds. See sitpra, par. 513. 585. XIX. Generally speaking, a purchaser of an equity of redemption, with notice of subsequent incum- brances, stands in the same situation, as regards the subsequent incumbrancers, as if he had himself been the mortgagor. And where a second equitable mort- gagee who becomes such without notice of the first equitable mortgage, afterwards, with notice of the first incumbrance, gets in the legal estate, he obtains priority, unless the circumstances are such as to make it inequitable for him to do so, as where, for example, he had notice that the legal estate was held upon express trust. The mere fact that the subsequent incumbrancer has notice when he gets in the legal estate counts for nothing. (Taylor v. Russell, (1892) A. C. 244, per Lord Macnaghten.) 586. XX. If a mortgage is cancelled by a mortgagee, and it is so found in his possession on his death, it is as much a release as cancelling a bond. But it does not convey or revest the estate in the mortgagor ; for that must be done by some deed : the legal estate in such a case, on the death of the mortgagee before the 1st of MORTGAGES OF REALTY. 297 January, 1882, descended upon the heir, and there Tit. III. , *' Cap. 111. being no debt at Law or m Equity, at least upon the Sect. I. mortgage, the Court held the heir to be a trustee for the mortgagor. (2 Sp. 749 ; 2 Bobbins' Mortg. 1402, 1411.) But on the death of the mortgagee on or after that date, the legal estate vests in his personal representatives (44 & 45 Vict. c. 41, s. 30; see supra, par. 513.) 587. XXI. If the debt is paid off, the mortgage is XXI. Or by extinguished in Equity, and the mortgagee is deemed a trustee for the mortgagor. (2 Sp. 640.) And an or l. 257.) The reason would appear to be that on which a Court of Equity acts in not decreeing a specific performance of agreements respecting personal property ; namely, that other things of the same kind, and of the very same worth, even to the owner himself, may be purchased for the sum which the articles in question fetch ; and therefore if such property is mortgaged, the mortgagee may properly be allowed to sell it, on due notice. 605. rV. If a person transfers his shares in a company IV. Mortgage by way of mortgage, and the mortgagee, as registered owner, becomes liable for calls or other payments, he cannot compel his mortgagor to indemnify him, unless he comes to redeem. (Bobbins' Mortg. 276.) 606. V. The mortgagee of a ship is entitled to the V. Mortgage . . of a ship. accrumg freight from the time he takes possession. (Bobbins' Mortg. 266 ; Keith v. Burrows, L. B. 2 Ap. Cas. 636.) A security valid in Equity may be given upon freight to be earned or a cargo to be acquired. (Bobbins' Mortg. 271.) A contract by 304 MORTGAGES AND PLEDGES OP PERSONALTY. ■Tit. III. which a ship, freight, and cargo are rendered Hable by Sect. III. the master for the payment, after the arrival of the Bottomry. ship at her destination, of a debt incurred in obtaining what is necessary for the preservation of the ship or for the continuation of the voyage is called bottomry, or, when the security is confined to the cargo. Respondentia, respondentia. 607. The first registered mortgagee of a ship, by taking possession of her before the freight is completely earned, obtains a legal right to receive the freight, and to retain thereout not only what is due on his- first mortgage, but also the amount of any subsequent charge which he may have acquired on the freight, in priority to every equitable charge of which he had no notice ; and it makes no difference that a subsequent incumbrancer was the first to give notice to the characters of his charge on the freight. {Liverpool Marine Credit Co. v. Wilson, L. E. 7 Ch. Ap. 507; Keith V. Burrows, L. E. 2 Ap. Gas. 636.) 608. A legal mortgage of a ship must be in the form' prescribed by the Merchant Shipping Act, 1894 (57 & 58 Vict. e. 60). And by section 57 of that Act, it is. provided that, subject to the provisions of the Act, " interests arising under contract or other equitable interests may be enforced by or against owners and mortgagees of ships in respect of their interest therein in the same manner as in respect of any other personal property." (See Batthyany v. Bouch, 50 L. J. Q. B, 421.) 609. VL Pledgor's VI. In the case of pledges, if a time for redemp- redemption. tion is fixed by the contract, still the pledgor may redeem it afterwards, if he applies to the Court, within a reasonable time. If no time is specified for the payment, the pledgor may redeem it at any OF LIENS. 305 time during his life, unless he is called upon Tit. hi. to redeem by the pledgee; and in case of the Sect. m. death of the pledgor without such a demand, his representatives may redeem it. (St. § 1032 ; but see Bobbins, 1460.) 610. VII. On the other hand, the pledgee may, after vii. Pledgee's demanding repayment of the money lent, sell the "^''*^' pledge without any decree of sale. (St. § 1033; France v. Clark, 26 Ch. D. 257.) 611. In Carter v. Wake (4 Ch. D. 605 ; Brett's Lead. Cas. 201), Jessel, M. E., held that the pledgee of Canada Eailway Bonds had no right to foreclose. But in the case of The General Credit, dc. Co. v. Glegg (22 Ch. D. 549), it was held by Bacon, V.-C, that a mortgagee of railway shares, where a transfer had been made, was entitled to foreclosure. 612. Section IV. Of Liens. Liens in Equity are wholly independent of the Sect. IV. possession of the property. An equitable lien is a Equitable hold upon property for the satisfaction of a claim l'™i" _ ^ ^ "^ general. attaching thereto under an express charge or contract or constructive trust. 613. As a general rule where a bill of exchange is made Holder of bill payable out of a particular cargo, the transaction " ^^"^ ™^^' amounts to an equitable assignment. But a bill of exchange does not, merely because it purports to be drawn against a particular cargo, carry a lien on that cargo into the hands of every holder of the bill ; and a mere statement, communicated to the consignees of goods, that a bill is drawn as against those goods. OF LIENS. Tit. III. will not of itself give a charge on them. (Robey dt Co. Sect. IV. v.'OlUer, h. B,.7 Gh. 695, 698.) Where, however, a letter of advice showed an intention to consign the goods as a security for the bills, and goods were deposited to meet the bills, it was held that there was a lien. (Ex parte Ackroycl, 3 D. P. & J. 726.) And under special circum- stances the dealings between consignors and consignees may be such as to create a specific lien. {Frith v. Forbes, 4 D. P. & J. 409.) But as a general rule, if there is a bill of lading, a mere letter of advice accompanying a bill of exchange will not create any specific lien. (Broton, Shipley S Go. v. Rough, 29 C. D.. 848.) Where, however, a consignor directs his agent to realise a cargo sent against a bill of exchange, and to pay the bill, and the agent communicates this direction to the holder, the latter has a lien on the cargo. {Ranken v. Alfaro, 5 C. D. 786.) 614. With regard to liens in Equity, it may be generally stated that they arise from constructive trusts ; and of this we have a good illustration in the case of a vendor's lien for unpaid purchase-money {ante, par. 327). The usual way of enforcing a lien in Equity is by a sale of the property to which it is attached. (St. § 1217.) 615. Lieaofa The lien of a solicitor on the deeds, books, and costs'*""^ ^°' papers of his client, for his costs, is not like a lien arising in the case of contract : it has not the character of a pledge or a mortgage : but it is merely a right to withhold from his client until his bill is paid the deeds, books, and papers which have come into his possession as solicitor, and not a right to enforce his claim against the client. {Cnrweii v. Milburn, 42 C. J). 424.) The lien is for costs only, and not for debts {Re Galland, 31 C. D. 296) ; and may be lost by OF LIENS. 307 conduct, as by taking a security for costs. {Re Douglas Ti""- HI- Norman d- Co., (1898) 1 Ch. 199.) It prevails as Smt. iv. against the representatives of the cHent, but it is only commensurate with the right of the client, and is subject to the rights of third persons as against him : so that a prior incumbrancer cannot be affected by it ; and when a mortgagee is paid off, the solicitor of the mortgagee cannot retain the deeds. (Bobbins Mortg. 1384.) And a solicitor acting both for the mortgagee and the mortgagor in the preparation of a mortgage has no lien on the title deeds in his posses- sion for costs due to him from the mortgagor, unless such Hen is expressly reserved, even though the mortgagee may have known that the solicitor had such lien as against the mortgagor. {In re Snell, 6 Ch. D. 105. See and distinguish Brunton v. Electrical, dc, (1892) 1 Ch. 434.) 616. But a solicitor has a lien upon a fund realised in a suit, as to so much as may belong to his own client, for his costs of the suit or immediately connected with it ; and this is a lien which he may actively enforce. (Bobbins Mortg. 1385 ; Verity v. Wylde, 4 Drew. 427.) The Court or a Judge may declare the solicitor entitled to a charge upon the property recovered or preserved, whether real or personal, for his costs of, or in reference to, the suit or proceeding ; and may give such charge priority. And the Court may extend the lien of the solicitor to the whole fund realised in the suit independently of the question to what person the fund belongs, and whether the solicitor was employed by that person, or whether that person is an infant or married woman restrained from anticipation. (23 & 24 Vict, c. 127, s. 28 ; Greer v. Young, 24 C. D. 545; Brett's L. C. 174; Scholey v. Peck, (1893) 1 Ch. 709.) 617. x2 308 OF LIENS. Tit. III. Cai-. III. Sect. IV. Banker. Lien of a joint tenant : of a trustee ; cestui que trust. Lien under a covenant. A set-off for damages or costs between the parties is now allowed, notwithstanding the solicitor's lien for costs in the particular cause or matter in which -the set-oif is sought. (Order LXV., r. 14, Russell v. Russell, (1898) A. C. 307.) 617 a. A banker also has a lien on the securities deposited by a customer for the customer's general balance of account, and this right subsists where not inconsistent with the terms of a special contract for a specific security. (Re European Bank, L. E. 8 Ch. 41.) If one of two joint tenants of a lease renews for the benefit of both, he will have a lien on the moiety of the other joint tenant for a moiety of the fines and expenses. (Ex parte Grace, 1 B. & P. 376.) 618. A trustee is entitled to a lien on the trust estate for his expenses, including the expenses of renewals of leases. (Lewin, 196.) 619. Where there has been a breach of trust and a cestui que trust is implicated therein and liable therefor, his beneficial interest in other parts of the trust fund is subject to a lien to the extent of the loss to the trust estate, and his interest may be impounded. (Hallett y. IJallett, 18 C. D. 232.) And on the other hand the cestui que trust has, a lien on the whole fund where a trustee has mixed trust moneys with his own. (Lewin, 1095.) 620. A covenant for valuable consideration to charge or settle particular lands will create a lien on the property affected by the covenant. 621. ( 309 ) CHAPTEE IV. OF APPORTIONMENT AND CONTRIBUTION. I. In several cases- under these heads, assistance Tjt. HI. might formerly, when Law and Equity were separately ^'^''' ^^' administered, be had at Law. But even in these cases Ln"""^'"" it was sometimes necessary to resort to Equity instead of proceeding at Law, in order to avoid a multiplicity of suits. And now by the Judicature Act, 1873, the matters to which this chapter refers are for the most part assigned to the Chancery Division of the High Court of Justice (36 & 37 Vict. c. 66, s. 34 (3) ). St. § 477, 488.) 622. II. An apportionment may be made either of a ii. Two benefit or of an incumbrance, loss, expense, or apportion- liability ; and in the case of an apportionment of the "**"*■ latter class, a corresponding contribution is enforced, consequent on such an apportionment. 623. To mention an instance of an apportionment of illustrations a benefit, if an apprentice-fee is given, and the master ° ^ ^ ^'^^^' afterwards becomes bankrupt. Equity will decree an apportionment. (St. § 472, 473; see now Bankruptcy Act, 1883, s. 41) ; but there is no apportionment on the death of the master.) {Ferns v. Carr, 28 C. D. 409.) And where portions are payable to daughters at a certain age or on marriage, and maintenance is to be allowed, payable half-yearly, at specific times, until the portions are due ; if one of the daughters should attain the given age at an intermediate period, 310 APPOETIONMBNT AND CONTRIBUTION. Tit. III. Cap. IY. Illustrations of apportion- ments of the second III. Volun- tary discharge of an incum- brance by a tenant in tail or by a tenant for life. the maintenance will be apportioned in Equity. (St. § 479 ; and see now the Apportionment Act, 1870.) 624. On the other hand, with regard to an apportionment of, and contribution .towards, an incumbrance, loss, expense, or liability, in the absence of an indication to the contrary, where several estates, or parts of estates, are comprised in one mortgage, and they become vested by devise, descent, or otherwise in several persons, each estate or part of an estate mortgaged must, according to its value, contribute proportionally to keep down the interest or to pay off the principal. (St. § 484.) And so it is with different persons having distinct limited interests in an estate which is under mortgage. (St. § 485 ; 2 Sp. 837.) And as between a tenant for life and a remainderman under a will, the interest on the testator's debts must be borne by the income as from the day of the testator's death. (Barnes v. Bond, 32 Beav. 653.) 625. III. With respect to the voluntary discharge of an incumbrance on an estate, by a person having an interest in the estate, the rule is that, in the absence of direct evidence of his intention, the quantum of interest which he owns determines whether the incum- brance is to be regarded as merged and extinguished, or is to be kept alive. Thus, if a tenant in fee simple pays off an incumbrance on the estate of which he is tenant in fee, the incumbrance, in the absence of evidence of a contrary intention, will be presumed to be extinguished. (Lewin, 894.) Also if a tenant in tail in possession pays off an incumbrance on the estate of which he is tenant in tail in possession, it will ordinarily be treated as extinguished, and the remainderman cannot be called upon for a APPORTIONMENT AND CONTRIBUTION. 311 contribution, unless the tenant in tail keeps alive the T't. III. . , , . Cap. IV. incumbrance by some suitable assignment, or other- wise manifests his intention to hold himself out as a creditor of the estate in lieu of the mortgagee ; because a tenant in tail in possession can make himself absolute owner of the estate : and therefore, if he discharges incumbrances, he is presumed to do so in the character of owner, unless he clearly shows that he intends to become a creditor in respect of such discharge. (Lewin, 895.) But the like doctrine does not apply to a tenant in fee simple subject to an executory limitation over which he cannot defeat, or to a tenant in tail incapable of making himself absolute owner, or to a tenant in tail in remainder, whose estate may be altogether defeated, or to a tenant for life ; for, if either of these persons, and especially a tenant for life, pays off an incumbrance, it must be presumed that he means to keep it alive, against the inheritance, for his benefit. (Lewin, 896.) But, in all these cases, the presumption may be rebutted by circumstances which demonstrate a contrary intention. (St. § 486.) Though it has been said that there is no direct authority for saying that a charge can be made to attend the inheritance of the estate, like a term of years or chattel real, yet there can be little doubt that the common practice of assigning charges for that purpose would be confirmed by the Court. (Lewin, 896.) 626. IV. With respect to the compulsory discharge of IV. Ccim- incumbrances, the modern rule of Equity is this : discharge of that the tenant for life shall contribute, beyond the i"cumbrauces. interest, in proportion to the benefit he derives from the liquidation of the debts, and the consequent cessation of interest, which of course will much 312 APPORTIONMENT AND CONTRIBUTON. Tit. III. depend on his age, and the computation of the '- — value of his life. If the estate is sold to discharge incumbrances (as the incumbrancer may insist that it shall), the surplus which remains after discharging the incumbrance is to be applied as follows :— the income thereof is to go to the tenant for life during his life ; and then .the whole capital is to be paid over to the remainderman or reversioner. (St. § 487.) For the statutory powers of tenants for life with respect to leases and sales of, and the discharge of incumbrances on, settled estates, and also as to the capital money and income of such estates, see stats. 45 & 46 Vict, c. 38, 47 & 48 Vict. c. 18. 627. V. Keeping V. A tenant for life is bound to keep down interest interest on which has accrued during his own time, so far as the incumbrances. j.gj^(;g a,nd profits will extend. But if there are any arrears which accrued during the life of a preceding tenant for life, and such arrears cannot be recovered from his estate, they are primarily a charge upon the inheritance. (St. § 488, 1028 a; Bobbins, 638; Dixon V. Peacock, 3 Drew. 288, 292 ; Sharshaw v. Gibbs, Kay, 333.) 628. Where a tenant for life oi an estate, subject to a charge bearing interest, pays the interest, although the rents and profits are insufiicient for that purpose, he cannot make himself an incumbrancer on the estate for the excess in his payments, if he has not given to the remainderman any intimation of the insufiSciency of the rents and profits, and of his intention to charge- the excess of his payments on the inheritance. (Lord Kensington v. Bouverie, 7 H. L. Cas. 557.) 629. A tenant in tail in possession, if of full age, cannot be compelled by the remainderman or reversioner to pay the interest ; because he can make himself APPORTIONMENT AND CONTRIBUTION. 313 absolute owner of the estate ; and even if the T'l- Hi- remainderman or reversioner ultimately takes, still, instead of having any just ground of complaint that the interest has not been kept down, he has cause to be grateful to the tenant in tail for not barring the remainder or reversion. If, however, such a tenant in tail does pay the interest, his personal representa- tives have no right to be allowed the sum so paid, as a charge on the estate ; because he is supposed to have kept down the mterest, as owner, for the benefit of the estate. (St. § 488.) 630. If a tenant in tail is an infant, his guardian or trustee will be required to keep down the interest ; because the infant cannot of his own free will bar the remainder or reversion. (St. § 488, note.) 631. VI. Where leaseholds for years or for lives are vi. Charges , , , , , . ■ ii 1 of renewal of settled upon several persons in succession, tne rule leaseliolds. of equity, in the absence of any statutory provision or express direction, is, to apportion the charges for the renewal of leaseholds between the tenant for life and the remainderman, in proportion to the enjoyment they have of the renewed lease. (Lewin, 437.) 632. VII. Another case of apportionment and contri- Vll. Con- bution arises in regard to sureties. Originally, it between seems to have been questioned whether contribution sureties, between sureties, unless founded on some positive contract between them, could be enforced at Law. And although there is now no doubt that it may, yet the legal jurisdiction now assumed in no way affects Jnrisdiotiou. that which belongs to Equity. (St. § 495, 496 ; Dering v. Earl of Winchelsea, 2 Wh. & Tu. 535 et scq.) The contribution thus enforced is not grounded on mutual contract, express or implied, but on principles of natural justice. (St. § 493.) 633. 314 APPOETIONMENT AND CONTEIBUTION. Tit. 111. Cap. IV. Where such contribution is enforced. "What is the quantum. If one surety, on the default of the principal, is compelled to pay the whole sum of money, or to perform any other obligation for which all became bound, he can oblige each of his co-sureties, and the representatives of any deceased surety, to contri- bute, whether the sureties are jointly and severally bound or only severally, unless there is an express or implied contract to the contrary, and whether their suretyship arises under the same instrument or under different instruments, either executed with his know- ledge or not, if all the instruments are primary concurrent securities for the same debt. (See St. § 492, 495, 497, 498 ; Whiting v. Bxirke, L. E. 10 Eq. 539 ; 6 Ch. 342.) But where there are separate bonds given with different sureties, and one bond is intended to be only subsidiary to and a security for the other in case of a default in payment of the latter, and not to be a primary concurrent security, the surety in the subsequent bond would not be compelled to aid those in the first bond by any contribution. (St. § 498 ; cf. Whiting v. Burke, supra.) 634. As to the amount of the contribution between co-sureties, the principle is that there should be an equality of the burden and of the benefit, and consequently that they should contribute equally if each is surety for an equal amount, and if not, then proportionately to the amount for which each is a surety. And in order to effect this, each surety must bring into hotchpot every benefit he has received in respect of the suretyship, including any indemnity from the principal debtor, so that the ultimate burden may be ascertained and distributed among the sureties. (Steel y. Dixon, 17 Ch. D. 825 ; Brett's Lead. Cas. 244.) Thus the contribution will generally be equal ; but if APPORTIONMENT AND CONTRIBUTION. 316 there is a contract express or implied to the contrary, Tit. hi. it will be otherwise. (St. § 498 ; 2 Sp. 844.) And - ^'^^' ^^' if there are several sureties, and one of them is insolvent, and another pays the debt, he can recover from the solvent surety or sureties, as much as such solvent surety or sureties would have had to pay if the insolvent had never undertaken the office of surety. (St. § 496 ; 2 Sp. 844 ; Hitchmaii v. Stewart, 3 Drew. 871 ; Re Parker, (1894) 3 Ch. 400.) And when there are several distinct bonds with different penalties, and a surety on one bond pays the whole, the contribution is in proportion to the penalty of their respective bonds. . 755.) And so an occupation rent with which a tenant in common is chargeable, and which might be set off against his share of the proceeds of sale in a partition action, cannot be set off against the mortgagee of such share. Hill v. Hicken, (1897) 2 Ch. 579.) 663 a. Now, however, there is no difference between set-off SET-OFF OR COUNTERCLAIM. 329 in Equity and at common Law (St. § 1444 a), and Tit. III. in the case of pecuniary claims, the power of set-off Sect. III. or counter-claim is not limited to debts ; but claims ior unliquidated damages may be set off against debts, and debts against damages, and damages against damages. And a defendant may, by way of counter- claim, claim in the original action any relief which he could formerly have sought by a cross-action at Law, or suit in Equity; so that a judgment may be given in his favour for the balance of a pecuniary claim or any relief to which he may be entitled. He may also counterclaim against a third party or a co-defendant if the counter-claim relate to the subject of the action, and the plaintiff is interested in the relief sought by the counter-claim. (Ann. Prac. 1900, p. 281 et seq.) 663 b. ( 330 ) CHAPTEE VII. OF CERTAIN MISCELLANEOUS CASES OP ACCOUNT. Tit. III. I. It is the duty of an agent to keep regular accounts Cap VI [ '■ '— and vouchers. (See remarks of Sir John Eomilly, M. E., gency. .^ Stainton v. The Carron Company, 24 Beav. 353.) And if he does not, he will not be allowed the com- pensation which would otherwise belong to his agency. And if he niixes up his principal's property with his own, he is put to the necessity of showing clearly what part of the property belongs to him ; and so far aS he is unable to do this, it is treated, both at Law and in Equity, as the property of the principal. (St. § 468.) The agent of a trustee, however, is accountable only to his principal, the trustee, and not to the cestui^ que trust, unless the agent, by accepting a delegation of the trustj or by being concerned in fraudulent breach of trust, has constituted himself a trustee by construction of law. (Wms. on Account, 193.) 664. II. Mesne II. In the Ordinary case of mesne profits, where aid was clearly afforded at Law, Courts of Equity did not interpose. (St. § 511.) Wherever relief was given in Equity, there was some peculiar equitable ground for interference ; such as fraud, accident, or mistake, the want of a discovery, some impediment at Law, the existence of a constructive trust, or the necessityjof interposing to prevent multiplicity of suits. (St. § 509 — 514.) But if an account is sought as incident to relief respecting the corpus, the general rule is that if MESNE PEOFITS WASTE TITHES. 331 the suit for recovery of possession be properly cogni- Tit. hi. sable in a Court of Equity, and the plaintiff obtains a '■ '— decree, the Court will direct an account of rents and profits as incident to such relief. (Lewin, 1089.) 665. III. In cases of legal waste, relief was ordinarily at III. Waste, Law. (St. § 515 — 518.) If the waste was equitable only, of course the remedy was in Equity. But what was equitable waste only, is now legal waste, and both in the Queen's Bench and Chancery Divisions, the Court may p;rant an injunction in all cases in which it is just and convenient (a). As to the different kinds of waste and the powers of a tenant for life to commit waste, see Lewin, 199 et seq. (St. § 515—518 b.) 666. IV. Matters of account also arise in regard to tithes IV. Tithes, and moduses. Wherever the right to tithe is clearly established, an account is consequent. But if the right is disputed, it must first be established before an account will be decreed. (St. § 519.) For some years past, however, tithes have been commuted for tithe rent-charges, under the stat. 6 & 7 Will. IV. c. 47, and subsequent Acts. 667. V. Matters of account also arise as between v. other guardians and infants, and in respect of the infringe- ment of patents, trade marks, and copyright, and in some few other cases. (See Wms. on Account, Chap. X.— XII.) (a) On this subject, see the Judicature Act, 1873, s. 25 (3), and Settled Land Act, 1882, ss. 6, 11, 3.5. ( 332 ) CHAPTER VIII. OP DAMAGES AND COMPENSATION. Tit. III. I. Damages or compensation were decreed in favour of a plaintiff in Equity, only as incident to other relief, to damages or sought by the bill and actually granted, or where there compensation -^g^^ jjq adequate remedy at Law, or where some peculiar equities intervened. (St. § 724, 798, 799.) But by Lord Cairns' Act (21 & 22 Vict. c. 27, s. 1) it was enacted, that " in all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance ; and such damages may be assessed in such manner as the Court shall direct." {Shelfer v. City of London, dc, (1895) 1 Ch. 322.) That statute is now repealed ; but under the Judica- ture Acts the Court has full power to give damages, and has now a much larger power than it had under Lord Cairns' Act. {Elmore v. Pirrie, 57 L. T. 353, per Kay, J.) 668. II. Compensa- H- Compensation is often given to a defendant, on defendant ^^^ principle that he who seeks equity must do equity. Thus, if a plaintifi^ in Equity seeks the aid of the Court DAMAGES AND COMPENSATION. 3Bii to enforce his title to land against an innocent person, Tit. iii. 1 , , . . . , Cap. Vllt. wno has made improvements on it, supposing himself to be the absolute owner thereof, that aid will be given only on the terms that the plaintiff shall make a compensation to such innocent person proportionate to the benefit which will be received from those improvements. (St. § 885.) 669. III. With regard to penalties and forfeitures for III. Jurisdic- breach of conditions and covenants, there was origin- aeainsV'^^^ ally no relief but in Equity; and although, by several penalties and statutes, relief may now be had at Law in a great variety of cases, yet the original jurisdiction in Equity still remains. (St. § 1301; Peachy v. Duke of Somerset, 2 Wh. & Tu. 250 et seq.) 670. TMiere a penalty or forfeiture appears to have been where such inserted merely to secure the performance of some act, afforded or the enjoyment of some right or benefit. Equity regards the performance of such act, or the enjoyment of such right or benefit, as the substantial object of the party interested therein ; and if a compensation can be made for the non-performance or want of enjoyment thereof, it will relieve against the penalty or forfeiture, by simply decreeing a compensation in lieu of the same, proportionate to the damage really sustained. (See St. § 1314, 1320.) 671. If a compensation can be made, and the penalty is Amount of , J p I. , compensation to secure the mere payment of a sum of money, the in such cases. party will be relieved on paying the principal and interest. If it is to secure the performance of some other act, the Court will ascertain the amount of damages, and grant relief on payment thereof. (St. § 1314.) 672. Although it may be urged that, in such cases as Such relief is these, it was the folly of the party to make such a ^^^^nted. stipulation, yet the folly of one man cannot authorize 3S4 DAMAGES AND COMPENSATION. Tit. III. the other to commit an act of gross oppression, or Cap. VIII. obhge the former to suffer a loss wholly dispropor- tionate to the injury to the other party. (St. § 1316.) And although, in some cases, from peculiar circum- stances, which cannot be taken into account, the compensation awarded may not amount to an adequate compensation, yet that is no solid objection against the interference of Courts of Equity ; for a great injury is always prevented by such interference; whereas the mischief caused thereby is only occa- sional ; and all general rules must work occasional mischiefs. (St. § 1316, note.) 673. A stipulation, that if instalments be not punctually paid, the whole sum shall be payable at once, is not to be deemed of the nature of a penalty. {Sterne v. Beck, 1 D. J. & S. 595 ; The Protector Endowment, dec. Co. V. Grice, 5 Q. B. D. (Ap.) 592.) Nor is a reserva- tion of a right to have full payment of money actually due at the date of an existing contract, if there should be a failure to pay a smaller sum on a day certain. {Thompson v. Hudson, L. E. 4 H. L. 1.) 674. JV. No relief IV. Courts of Equity will not relieve in cases of Hquklated liquidated damages, which occur where the parties jiamages, have agreed that in case one party shall do or omit a where they _ ° i. ^ are really' certain act, the other party shall receive a certain sum, as the just amount of the damage sustained by such act or omission, and where the sum so agreed to be paid is not grossly disproportionate to the nature or extent of the injury. If the sum is so dispropor- tionate, and it is in reality penal, although it may assume the disguise of liquidated damages, a Court of Equity will treat it as a penalty, and relieve against it accordingly. (St. § 1318 ; Wallis v. Smith, 21 C. D. "243.) 675. DAMAGES AND COMPENSATION. 335 V. In the case of a breach of a covenant to pay '^n: Hi. rent, Equity will relieve, even where the term is gone — — '- '— at Law by reason of the landlord's entry by virtue of leiief iT'^ a clause of re-entry ; for that is deemed to be a mere f '*"*^'' *^ •^ to a breach security for the payment of the rent. (St. § 1315, of covenant and note to § 1323.) And the stat. 23 & 24 Vict, c. 126, s. 1, extended this relief to cases of ejectment for forfeiture for non-payment of rent. But no relief will be granted in Equity in case of forfeiture for the breach of any covenant other than a covenant to pay rent, unless on the ground of accident, mistake, or fraud; for it has been considered that even where the damages are capable of being ascertained, the jurisdiction of Equity in giving relief is a dangerous jurisdiction, and rarely works a real compensation. (St.§1320— 1322; Gre^or^/v.TFzZsow, 9 Hare, 689.) The TheConvey- Conveyancing Act, 1881, s. 14, prescribes further relief issi'and" '°' against forfeiture for breach of covenant or condition ^^^^' in a lease, by requiring notice of the particular breach, and a request to remedy the breach or make compen- sation, to be served on the lessee as a condition precedent to the right of forfeiture, and the act enables the Court, on the application of the lessee, to grant relief on such terms (if any) as it thinks fit. The Act, however, does not apply to (1) a covenant not to assign or underlet ; (2) a condition of forfeiture on bankruptcy or execution ; or (3) a covenant in a mining lease for inspection, etc. But by the Con- veyancing Act, 1892, s. 2*(2), even forfeiture on bank- ruptcy or execution will now be relieved against in certain cases and under certain restrictions. 676. VI. And Equity will not mitigate any penaltjr or a vi. Relief forfeiture imposed by Statute ; for that would be in "g*if™'*"^ contravention of the direct expression of the legislative statutory penalties or forCeitares. 336 DAMAGES AND COMPENSATION. Tit. III. will ; nor generally speaking will it interfere in cases '- of forfeiture founded on custom. (St. § 1326.) 677. VII. A VII. On the other hand, it is a uniform rule in forfeiture Equity never to enforce either a penalty or a for- enfoTced feiture. Therefore, Courts of Equity will never aid in the divesting of an estate, for a breach of a cove- nant, on a condition subsequent. (St. § 1319 ; and on the subject of enforcing a penalty, see Thompson v. Hudson, L. E. 4 H. L. 1.) 678. ( 337 ) Definition. CHAPTEE IX. or ELECTION. Election is the obligation to choose between two Tit. III. rights, by a person who derives one of them under an instrument in which a clear intention appears that he should not enjoy both. The doctrine rests upon the principle that a person shall not be allowed to appro- bate and reprobate ; but if he approbates he shall do all in his power to confirm the instrument he appro- bates. {Cavendish v. Dacre, 31 Ch. D. 466.) 679. The instances in which persons have been put to "Wliere elec- their election at Law are cases of title which are LaJ^_ technically incapable of simultaneous assertion, by reason of their inconsistency : as in the case of a contemporaneous estate for life and in tail in the same land, or a claim of a tenant under and against his landlord ; or a claim to dower both in the land taken and the land given in exchange. 680. The doctrine of election arises in Equity in cases Where elec- 1 , 1 i j_ i • tion arises in where a grantor, or, more commonly, a testator, gives £quitv. away, either knowingly or by mistake, that in which he has no interest, or the whole of that in which another person besides himself has an interest, and in the same instrument makes a gift to the owner of the property so given away, or to the person entitled to such interest. In such cases the owner of such property, or the person entitled to such interest, cannot both take the gift and retain his own 33S ELECTION., Tit. III. property or interest ; but if he takes the gift, he must resign his own property or interest. On the other hand, if he elects to hold his .own property or interest, or, as the phrase is, if he elects against the instrument, he cannot have the gift ; or at least he cannot have the entire gift without compensating the party whom he has disappointed by electing to take his own property. Equity, in not suffering the dis- position by which such gift is made to enure to the benefit of the person so electing against the instru- ' ment, will not render that disposition inoperative, but will make it the means of effectuating that intention of the author of the instrument which such person has frustrated by so electing to retain his own property or interest ; for Equity will treat such gift, or at least a part of it, as a trust in the donee or devisee, the person so electing, for the benefit of the party disappointed by such person's refusing to give up his own property or interest. (See St. § 1077, note, and 1081—1084, 1086, 1088, 1089, 1093 ; Noys v. Mordaunt, and Streatfield v. Streatfield,, 1 Wh. & Tu. 414 et seq.; Re Vardon's Trusts, 31 C. D. 275; Brett's L. C. 256.) Since the doctrine of election depends upon compensation, it follows that it can , never be applied where an election is made con- trary to the instrument, unless the interest that would pass by it is of that freely disposable nature that it can be laid hold of to compensate the party who suffers by the exercise of such election agamst the instrument. (1 Wh. & Tu. 428.) Thus, where there is a fund subject to the appointment of a father amongst his children, and the father appoints a part to some of his children, and the other part to persons not objects of the power; any child who is an appointee ELECTION. 339 may both take his appointed share and also claim Tit. -III. 1-1 /! 1 • • Gap. 'TX. nis share of the improperly appointed portion, as in default of appointment. {Bristow v. Ward, 2 Ves. Jr. 836; Be Fonier, 27 Beav. 362.) But if there is a power to appoint to' two, and the donee of the power appoints to one only and gives a legacy to the other, he cannot claim the legacy and also dispute the validity of the appointment ; or, if a person has a special power of appointment and appoints to a person not an object of the power, and gives property of his own to the person entitled in default, the latter cannot take this benefit and also dispute the appoint- ment, but will be put to his election. {Whistler y. IVebster, 2 A''es. Jr. 367.) But where a testator, having a power of appointment over certain settled property in favour of children of his first marriage, appointed it to a son of the first marriage, subject to a charge in favour of his other children of his first and second marriages, and also devised other property of his own to the same son, subject to the same charges in favour of his other children, so as to equalize the shares of his children, the children of the first marriage were held bound to elect between taking the settled j)roperty freed from the charge in favour of the children of the second marriage, and taking their shares in the settled and unsettled property with the children of the second marriage according to the will of the testator. {White v. White, 22 C. D. 555.) Generally speaking, if the will is inefi'ectual to pass real estate, the heir will not be put to election. {Sheddon v. Gaodricli, 8 Ves. 481 ; but see post, par. 684.) Thus, where a will was void with respect to certain real estate, which the testatrix attempted to devise to other children away from her heir in whose z 2 340 ELECTION. Tit. III. favour she had by her will made a valid appointment Cap, 1a. of other property, it was held that the heir was not bound to elect in favour of the other children. (In re De Burc/li Laivson, 34 W. E. 39.) But if the legacy is given to the heir on the express condition that he does not dispute the will, he will be bound to elect. {Boughtoii V. Boughton, 2 Ves. Sen. 12.) 681. Privui facie, it is not to be supposed, nor can it be proved by extrinsic evidence, that a testator disposes of that which is not his own, so as to raise a case of election. It must appear on the will itself, by plain demonstration or by necessary implication. (1 Wh. & Tu. 425, 428 ; Wintour v. CUfton, 8 D. M. & G. 641 ; MiUer v. Thurgood, 33 Beav. 496.) 682. The doctrine of election is applied to interests, not in respect of their amount, but of their inconsistency with the testator's intention. Their remoteness or their value is therefore no criterion of such intention. (St. § 1095.) And the doctrine is equally applied to all interests, whether immediate or remote, vested or contingent, of value or of no value, and whether in real or personal estate. (St. 1096.) 683. The same doctrine of election also arises in cases where it was apparently a testator's intention to dispose of all the property he might have at the time of his death, and the heir, who is a devisee under the will, claims property, which was purchased subsequently to the will, and which consequently, under the old law, did not pass by the will, but was intended to pass to another person under the general ■words of the will. (St. § 1094 ; Schroder v. Schroder, Kay, 578.) 684. And where a testator devises all the residue of his real estate situate in any part of the United Kingdom ELECTION. 341 or elsewhere, and he has real estate in Scotland as Tit. III. well as in England, and his heir takes the Scotch ^^^' ^^' lands, by descent, from want of an instrument inter viros from which the testamentary instrument might derive its effect, the heir will be put to his election. {Orrell v. Orrell, L. E. 6 Ch. 302 ; and see Dewar v. Maitland, L. E. 2 Eq. 834.) 685. It has been held that the doctrine of election does not apply to an instrument which was valid at the time of execution as to all the property comprised in it, but was rendered inoperative as to some of the property by subsequent events. (Blaiklock v. Grindle, L. E. 7 Eq. 215.) 686. Where a person elects against the instrument, com- pensation and not forfeiture is the rule. Thus, a person electing against a will does not forfeit the whole of the benefit intended for him, where the value of the gift exceeds that of his own property or interest ; but he only forfeits as much as will compensate in value the claimant whom he has disappointed by refusing to give up his own property or interest. (St. § 1085 ; Pickersgill v. Rodger, 5 C. D. 163.) For a Court of Equity, interfering to control his legal rights for the purpose of executing the intention of the testator, is justified in its interference so far only as that purpose requires. (St. § 1085, note.) 687. A case sometimes confounded with election is where Election as to a testator makes two distinct gifts, one onerous and the other beneficial. Here, generally speaking, he may accept one and reject the other, unless it is fairly inferable, from the nature of the different benefits, that he should either take all or reject all. (St. § 1081 ; Brett's L. C. 268.) 688. 842 ELECTION. Tit. III. Cap. IX. Election in the case of a settlement. Election need not be made in ignorance of circum- stances. Election by conduct. Election presumed. Election may also arise where a person attempts to claim both under and in opposition to a settlement. It is a rule that a person will not be allowed to take under and against the same instrument. {Anderson V. Abbott, 23 Beav. 457 ; Brown v. Broivn, L. E. 2 Eq. 485; Codrington v. Lindsay, L. E. 8 Ch. 578, 593; 7 H. L. 854 ; but see Re Vardon's Trusts, 31 C. D. 275.) 689. The party is not bound to make an election till all the circumstances are known. And if he should make a choice in ignorance of the real state of the funds, or under a misconception of the extent of the claims on the fund elected by him, it will not be conclusive on him. And he is entitled, in order to make an election, to have discovery, and all necessary accounts taken and inquiries made, in order to ascertain the real state of the fund. (St. § 1098 ; Leslie v. French, 23 C D. 552.) 690. Election may be implied from conduct ; but election by conduct must be by a person who has positive information as to his rights to the property, and with this knowledge really means to give that property up. {Wilson v. Thornbury, L. E. 10 Ch. 239.) 691. An election may be presumed from a long acqui- escence or from other circumstances of a stringent nature. (St. § 1097 ; Dewar v. Maitland, L. E. 2 Eq. 834.) Eemaining in possession of two estates held under titles not consistent with each other, affords no conclusive proof of the kind. (1 Wh. & Tu. 440 ; Spreiid V. Morgan, 11 H. L. C. 588.) 692. The doctrine of election is not of the nature of a positive rule of law which a person is bound to know. And therefore in order to infer an election, it is ELECTION. 34S necessary to show that the person who ought to elect Tit. hi. was aware of the doctrine. {Spread v. Morgan, 11 '■ ^ H. L. C. 588.) 693. The doctrine of election is not applied in the case '^° election in of creditors. They may take the benefit of a devise creditors. for payment of debts, and also enforce their legal claim against other funds disposed of by the will; for a creditor claims not as a mere volunteer, but for a valuable consideration, and ex dehito justitice. (St. § 1092.) 694. Where a testator gives a much larger property to one Gift under child, under the mistaken impression that such child did not take under the testator's marriage settlement, he is not bound to elect between his interest under the settlement and the gift by will. {Box v. Barrett, L. E. 3 Eq. 244.) 695. Where the person bound to elect is an infant, Disability. the Court will ascertain, by directing an inquiry if necessary, whether it will be most beneficial for such person to take under or against the will or deed, and will decree accordingly, though in some cases it will postpone the election until the infant comes of age. (1 Wh. & Tu. 416.) And an inquiry will also be directed in the case of a lunatic or person of unsound mind not so found by inquisition. {Wilder v. Pigott, 22 C. D. 263.) With regard to married women, a restraint on anticipation amounts to a contrary intention, and therefore excludes the doctrine of election. (Brett's L. C. 259.) But where there is no such restraint, they can of course elect as regards their separate estate ; and in other cases an inquiry will, if necessary, be directed. (1 Wh. & Tu. 443.) 696. Where a person, who had a right of election, dies Persons having 344 ELECTION. Tit III. intestate, without having exercised it, each of his or her next of kin has a separate right of election ; so rights of that neither the election of the majority nor of the w^nf tfn of ^^i^ OJ" administrator will bind the others. {Fytche v. next of kin of a person died witl electing. a person -who i?Vic/je, L. E. 7 Eq. 494.) 697. died without ( 345 ) CHAPTEE X. OF SATISFACTION. Satisfaction may be defined to be the making of a Tn. III. donation with the express or implied intention that it '- — '- — shall be taken as an extinguishment either wholly or in part of some claim which the donee has upon the donor. (See St. § 1099—1101, 1106 ; Ex parte Pye, 2 Wh. & Tu. 366 et seq. ; Tmsaiid v. Tussaud, 9 C. D. 363 ; Brett's L. C. 264.) 698. Equitable questions of satisfaction usually arise in Where satis- ,, , „ t\r\n faction arises. three classes of cases, bvv, I. In cases of portions secured by a marriage settlement. 700. II. In cases of portions given by a will, and an advancement of the donee afterwards in the testator's ifetime. 701. III. In cases of legacies to creditors. (St. § 1109.) 702. In all these classes of cases, if there is intrinsic Satisfaction evidence to be collected from the will or deed, showing pres'umpt'ion that double portions were intended, there is no pre- ^^^^^ed sumption ; but where there is no intrinsic evidence one way or another the presumption against double portions arises, which presumption may be rebutted by extrinsic or parol evidence, as by declarations of the testator or written papers. (St. § 1102; Tussaud v. Tussaud, 9 C. D. 863.) Thus when the question whether both portions are to be paid or not, is raised, 346 SATISFACTION. Tit. III. the instrument must be looked at for some expression Cap. X. 1-1 of intention. If there is so such expression, the presumption of law against double portions arises ; and when you come to a presumption to imply an intention the rule is that parol evidence is admissible to rebut such presumption. But parol evidence is not admissible to raise a presumption. {Tussaud v. Tussaud, 9 C. D. 363 ; and see Brett's L. C. 266.) 703. I. As to I. Where a portion or provision is secured to a child secured bv by a marriage settlement or otherwise, and the parent, settlement. ^^ person standing in loco parentis — that is, a person meaning to stand in the place of a parent as regards providing for a relation's child — afterwards by will gives the same child a legacy, whether particular or residuary, without expressly declaring it to be in satisfaction of such portion or provision, in such case, if the legacy is substantially the same in its value, in its nature, in time of payment, in certainty, and in benefit, with the portion or provision, and if it is no given for a different purpose, it will, in the absence of evidence to the contrary, be deemed a full satisfaction,, as Courts of Equity incline against double portions. If the legacy is less in amount than the portion or provision, or if it is payable at a different period, then it may be deemed a satisfaction pro tanto, or in full, according to the circumstances. (St. § 1103, 1104, 1109, 1110 ; Thynne v. Glengall, 2 H. L. Cas. 153 ; Chichester v. Coventry, L. E. 2 H. L. 71 ; Bennett v. Hoiddsworth, 6 Ch. D. 671.) 704. In the case of a provision by will, followed by a provision by deed, the first being revocable, there ia no difficulty in the way of the second provision taking effect in lieu of the first ; for it is reasonable to suppose that the parent or person standing in loco parentis has. SATISFACTION. 347 on some occasion for advancing the child occurring Tit. III. subsequently to the date of his will, anticipated the — ' - provision by his will, and substituted for it either wholly or pro taiito according to circumstances, the provision by deed. And no election, on the part of the person to be benefited, is required. Where the settlement comes first, this is said to be satisfaction properly so called ; but if the will comes first, then it is styled ademption. The difference, however, is merely verbal, and the principles in the two cases are the same. (Coventry v. Chichester, 2 H. & M. 158, per Wood, A^-C.) 705. On the other hand, in the case of a provision by deed, followed by a provision by will, the first being not revocable, and actual rights being conferred thereby, it is more natural in one respect to regard the second provision as additional, rather than as substitutional, and the application of the presumption against double portions is consequently more difficult ; and indeed no substitutional effect can be given to the will, except by the election of the person intended to be benefited. (Lord Chichester v. Coventry, L. E. 2 H. L. 71 ; Tusmiid v. Tussaucl, 9 C. D. (Ap.) 363, 380. But see Montagu v. Sandwich, 82 C. D. 525.) 706, Where by a covenant, to take efl^ect on the death of the settlor, a portion is settled on the husband for life, and then on his wife and children, and an absolute gift of other property is afterwards made by the settlor by will in favour of the husband, it may be a satisfac- tion of the husband's life interest under the settle- ment, but not of the interest of the wife and children. {McCarogher v. Whieldon, L. K. 3 Eq. 236 ; Mayd v. Field, 3 C. D. 587 ; Bethell v. Ah-ahmn, ib. 590, n.) But in Tussaud v. Tussaud {supra), where the Court of Tit. III. Cap. X. II. As to portions left by will to a child. 348 SATISFACTION. Appeal decided there was no satisfaction, the question that influenced the Court most was that the parties were different. (See Brett's L. C. 267.) 707. II. Where a parent or other person standing in loco parentis bequeaths a legacy, whether particular or residuary, to a child to whom he stands in that relation, and then, by an act inter vivos, makes a provision for the same child, of equal or greater amount, of equal certainty, and substantially the same in kind and in degree of benefit, without expressing it to be in lieu of the legacy, or for other objects than those for which the legacy was given, in such case, in the absence of evidence to the contrary, it will be deemed a satisfaction or ademption of the legacy. And if the provision inter vivos is less than the legacy, it will be deemed an ademption j5ro tanto. (St. § 1111, and note, and 1103—1105, 1112, 1118, 1115 ; Pijm v. Lockyer, 5 M. & C. 29 ; Hopwood v. Hopwood, 7 H. L. Gas. 728.) Where there is a bequest of residue to children and a wife or stranger in moieties, and the share of one of the children is adeemed by an advance, the children only will profit, and the stranger will not be entitled to benefit by taking the advance into account in estimating the residue. (Meinertzhagen v. Walters, L. K. 7 Ch. 670.) 708. A legacy may be adeemed by a gift, though not made on marriage or on any other occasion having a special reference to the donee ; and a gift of stock will adeem a charge on land. {Leightonv. Leighton, L. R. 18 Eq. 458.) But a bequest to a daughter is not adeemed by a gift to the husband ; nor by an advance to her, on her marriage, for her outfit. (Ravenscroft V. Jones, 32 Beav. 669.) 709. No ademption And this doctrine of the constructive ademption of SATISFACTION. M9 legacies has never been applied to legacies to wives or Tit. hi. to mere strangers, unless under some peculiar circum stances ; as where the legacy is bequeathed for a strangTrs.^ particular purpose, and a portion is afterwards given by the testator, by an act inter riros, exactly for the same purpose, and for none other. (St. § 1100, note, 1117, 1118; Pankhtirst v. Howell, L. E. 6 Ch. 136; Ee Polloek, 28 C. D. 552.) Indeed, in the case of strangers, the onus prohancU is upon those who con- tend that the two provisions are to be considered but as one; whereas in the case of children, the onus probainU is on those who contend for the double provision. (2 Sp. 430.) The term " strangers " here includes all who are not legitimate children of the donor, or children to whom he has placed himself in loco parentis. (St. § 1116.) 710. The ground of the distinction would seem to be, that Ground of the distmction. a legacy by a parent, or by a person in loco parentis, is presumed to be intended as a portion, and that it may be fairly regarded as the utmost amount that the testator, from a sense of duty or from parental or quasi parental affection, considered himself able and called upon to spare for the legatee, consistently with the accomplishment of other necessary purposes ; and that if he afterwards advances the same amount to the same child, it is almost certain, or at all events most likely, that he did so in accomplishment of the same mtention of providing for such child to the same extent ; especially where the necessity of making a provision has arisen in his lifetime, as where the provision is made on the marriage of the child. But in the case of a legacy to a stranger, the legacy is a mere arbitrary gift, unconnected with considerations of duty or parental or quasi parental affection ; an 350 SATISFACTION. Tit. III. there is as much reason, in such cases, why the Cap. a, ' testator should choose to make an additional gift, as there was for his making the original gift. (Lawes v. Laices, 20 C. D. 81.) 711. III. As to ni. A legacy given to a creditor, if it is of an creditors. amount equal to or greater than the debt, and in other respects equally beneficial, will, in general, in the absence of all countervailing circumstances, be deemed to be a satisfaction of the debt, on the principle that a testator shall be presumed to be just before he is generous. (St. § 1119, 1120; Talbotv. Sltreicsburi/, 2 Wh. & Tu. 375 ; Re Fletcher, Gillinc/s v, Fletcher, 38 C. D. 373.) But this principle has met with much censure, and slight circumstances will be laid hold of to escape from it. (See Re Horlock, (1895) 1 Ch. 516, per Stirling, J.) Thus, where the testator expressly directs his debts and legacies to be paid {Chancey's Case, 2 Wh. & Tu. 376), or even if he only directs his debts to be paid without mentioning legacies (Re Huish, 43 C. I). 260), there will be no satisfaction. Hence, too, the rule is not allowed to prevail where the legacy is of less amount than the debt, even as a satisfaction pro tanto, unless the creditor assented, in the debtor's lifetime, to such an arrangement ; nor where there is a difference in the time of payment of the debt and of the legacy ; nor where they are of a different nature, as to the subject-matter, or as to the interest therein ; nor where a particular motive is assigned for the gift ; nor where the debt is contracted subsequently to the will ; nor where the legacy is con- tingent or uncertain ; nor where the bequest is of a ]-esidue ; nor where the debt is a negotiable security ; nor where the debt is on an open and running account, so that the testator might not know whether he owed SATISFACTION. 351 anything. And as to a debt strictly so called, there Tit. III. is no difference whether it is a debt due to a stranger '-^ — or to a wife or child. (St. § 1103, 1122 ; Brett's L. C. •269 ; Fairer v. Park, 3 C. D. 309 ; Wiggins v. Horlock, 39 C. D. 142 ; Re Bowse, 50 L. J. Ch. 285 ; Crichton V. Crichton, (1895) 2 Ch. 853 ; Coates v. Coates, (1898) 1 Ir. E. 258.) 712. IV. On the other hand, where a creditor leaves a iv. As to legacy to his debtor, and either takes notice of the debtors. *° debt, or leaves his intention doubtful, Courts of Equity will not deem the legacy as either necessarily or prima facie manifesting an intention to release or extinguish the debt ; but they will require some evidence, either on the face of the will, or aliunde, to establish such an intention. (St. § 1123.) For if the legacy is less than the debt, it would clearly be a positive injury to the creditor to construe the legacy a release of the debt ; and even if the legacy is more than the debt, it does not follow that because the testator has manifested his bounty towards the debtor in that respect, he intends the debtor to have another benefit which has no necessary connection with the former. Where the testator does not mention the debt, but gives the debtor a legacy of equal or greater amount, he thereby benefits the debtor to at least the same extent, by giving him the means of paying the debt, as if he had directly forgiven the debt, but had given the debtor nothing, or nothing but the overplus ; and his reason for thus giving the debtor the means of paying the debt, without alluding to the debt, may have been one of kind consideration towards the debtor, namely, in order that none but the executor might be aware of the debt. 713. V. Where an annuity to the separate use of a V. Annuity. 352 SATISFACTION. Tit. III. married woman is charged on an estate, the gift of an '■ — '- — annuity to her generally, and charged upon property of a different nature, though to the same amount and payable on the same days, is not a satisfaction. (2 Sp. 609.) And where a person executes a deed by which he gives annuities to certain persons, and then executes another deed by which he gives other annuities to those persons, there is no presumption that the latter were intended to be a substitute for the former, especially where the annuities given by the second deed are of less amount, or the first deed contains a power of revocation which is not exercised by the second deed. {Palmer v. Newell, 20 Beav. 32 ; 8 D. M. & G. 74.) And, generally speaking, there is no satisfaction of legacies by subsequent legacies, unless they are of equal amount and given by the same instrument, or unless the motive of the gift is in each case expressed to be the same. {Benyon v. Benyon, Covenant to 17 Ves. 34 ; Hubbard v. Alexander, 3 C. D. 738.) And equea . ^^ appointment of a sum by will is not a satisfaction of a covenant to bequeath a like sum. (Graham v. Wickham (No. 1), 81 Beav. 447; 1 D. J. & S- 474.) 714. ( S^3 ) CHAPTEE XI. OF PARTITION ; OF SETTLEMENT OP BOUNDARIES AND OF ASSIGNMENT OF DOWER. Section I. Of Partitio)t. Since the abolition of the writ of partition in the Tit. III. year 1833 the Court of Chancery has exercised an seot. I. exclusive jurisdiction in decreeing the partition of an estate. But under the Partition Act, 1868, 31 & 32 Vict. c. 40, the Court may, and in some cases must direct a sale and distribution of the proceeds instead of a partition. And now all causes and matters for the partition or sale of real estates are assigned to the Chancery Division of the High Court of Justice. (36 & 37 Vict. c. 66, s. 34 (3).) The mode in which a partition was effected in Mode of Chancery was by first ascertaining the rights of the ^^^^ ' '""' several parties interested, and then issuing a com- mission to make the partition ; and on the return of the commission and confirmation of the return by the Court, the partition is finally completed by mutual conveyances of the lots made to the several parties. (St. § 650; and on this subject see Ar/ar y. Fairfax, 1 Wh. & Tu. 181, et scq.) But in modern practice a commission is not issued, as a partition can be made in judge's chambers if any inquiry is necessary, and if no inquiry is necessary the partition may at once be S. A A 354, PARTITION. Tir. III. Cap. XI. Sbc-1 ■ I. Title must be shown. Partition by or against tenants wlio have limited interests. made at the hearing. (1 Wh. & Tu. 202, Mayfair Property Co. v. Johnston, (1894) 1 Ch. 508.) The new remedy of sale has, however, been tacked on to the old remedy of partition by the Partition Acts, 1868 & 1876 ; and has to a great extent superseded the old remedy of partition, as being in most cases obviously more convenient and beneficial. Where a sale is asked for, partition may be ordered, and vice versa under the Act of 1876, s. 7. And the order may be for partition of one part and sale of another part of the property. {Roebuck v. Chadebet, L. E. 8 Eq. 127.) Under the Act of 1868, sections 3 — 5, the Court may direct a sale where it would be more beneficial than a division, or where one party requests a sale and the others do not undertake to buy his share. But the Court must direct a sale where parties interested to the extent of a moiety request one, unless it sees good reason to the contrary (section 4). As to what is good reason to the contrary, see Brett's L. C. 123. 715. As a partition is completed by mutual conveyances, it is essential to show a title. (St. § 658.) Where there is an overriding trust the Court will refuse a sale. {Tayhr v. Grange, 15 C. D. 165.) Thus the Court will not decree a sale where the estate is devised to trustees upon a trust for sale which is still subsisting {Swaine v. Denby, 14 C. D. 326 ; Biggs v. Peacock, 22 C. D. 284), but is not in general deterred by a mere power of sale given to the trustees. {Boyd v. Allen, 24 C. D. 622.) 716. The Court will decree a partition even in a suit by or against persons who are only tenants for life or years {Mason v. Keays, 78 L. J. 38) : and the decree will be binding on all whom they virtually represent, PARTITION. 355 but not on other persons. Thus, a decree in a suit by Tit. m. or against a tenant for life will be binding on the Seot. i. remainderman who is not in esse at the time, on the ground of virtual representation, if the Court is of opinion that it will be for the benefit of such remainder- man that the agreement should be carried into effect. (St. § 656, 656 a.) And by the Partition Act, 1876, s. 6, persons under disability may request a sale or give an undertaking. And infants may be declared trustees for the purchaser, and the next friend appointed to convey their shares. (Davis v. Ingram, (1897) 1 Ch. 477.) 717. But, on the other hand, a reversioner cannot maintain a suit for a partition. (Evans v. Bagshaw, L. E. 5 Ch. 340.) 718. In the case of an actual partition the Court may Equitable decree a pecuniary compensation to one in order to make up his share to its proper value, where the estate cannot conveniently be divided into equal parts. (St. § 654.) And instead of dividing each of several distinct estates, the whole of one estate may be allotted to one person, and the whole of another estate to another person, and compensation directed to be made to the person to whom the less valuable estate is allotted. (St. § 657.) So, to one who has made improvements on the estate, the property on which ' the improvements have been made may be assigned, or the Court will direct an account and inquiry as to the compensation to be given him. (Williams v. Williams, 68 L. J. Ch. 528.) And care will be taken to assign to the parties such portions of the estate as will best accommodate them ; and the Court will act according to its own notions of general justice and equity between the parties, and will, if necessary for that purpose, direct a distinct partition of each of A A 2 adjustments. 356 SETTLEMENT OF BOUNDARIES. several portions of the estate in which derivative Tit. III. Sect. I. alienees have distinct interests, in order to protect those interests. (St. § 655, 656 b, c.) 719. Sect. II. General rule. Confusion through fraud. Section II. Of the Settlement of Boundaries. The general rule observed by Courts of Equity was not to exercise jurisdiction in settling boundaries on the mere ground that they are a subject of controversy, but to require that the soil itself should be in question or that there should be some superadded equity. (St. § 615—623 ; Wake v. Comjers, 1 Wh. & Tu. 170 et seq.) In the case of Lascelles v. Butt, 2 Ch. D. 588, which was an action for a declaration of a boundary, Bacon, V.-C, said, "When it is objected that certain rules by which the Court was guided in former days have become obsolete, I do not know that these rules are not as worthy of observation as they ever were, and that the Court is not as much bound to follow them as it ever was." From this it would appear that the old rules must still be regarded under the present practice. 720. If the confusion of boundaries has been occasioned by fraud, that will constitute a sufficient ground for the interference of the Court. And if the fraud is established, the Court will, by directing an inquiry in Chambers (Spike v. Harding, 7 C D. 871), ascertain the boundaries, if practicable ; and if that is not practicable, it will do justice between the parties by ASSIGNMENT OF DOWER. 357 assigning reasonable boundaries or setting out lands Tit. rii. of equal value. (St. § 619, 623.) 721. Sect, n! In the next place, there will be a sufficient ground confusion for the jurisdiction, if the confusion has arisen by the through fault " ■' Ota party negligence or misconduct of a person standing in such whose duty it a relation to the opposite party as imposed upon him serve the an obligation to preserve and protect the boundaries. ^™"'^*"'^^- Thus, a tenant or a copyholder is under an implied obligation to preserve them ; and if through his default there arises a confusion of boundaries, the Court will interfere as against such tenant or copy- holder to ascertain and fix them. (St. § 620 ; Spike v. Harding, 7 C. D. 871.) 722. Equitable proceedings will also lie when they will iMultiplicity prevent multiplicity of suits, for example, where the right affects a number of persons, such as a common right in lands. (1 Wh. & Tu. 170 ; St. § 621.) 723. Section III. Of the Assignjnent of Dower. The Court of Chancery exercised a concurrent juris- shot. III. diction with the old Courts of Law in the assignment of dower in all cases, after the title of the widow, if disputed, had been established. There was no difficulty in maintaining this jurisdiction, as a case can scarcely be supposed in which the widow might not either want a discovery of the title-deeds, or of dowable lands, or some other kind of discovery, or some assistance which it was the peculiar province of the Court of Chancery to afford. (St. § 624—631.) In the case of persons Tit.. III. Cap. XI. Sbot- IIJ 358 ASSIGNMENT OF DOWER. married on or after the 1st of January, 1834, a widow's right to dower only attaches when, her husband dies intestate as to any estates of inheritance belonging to him, and may be excluded in a variety of ways. It therefore seldom arises, and actions respecting it do not often occur in practice ; but it would appear that they might be brought either in the Queen's Bench or Chancery Divisions of the High Court of Justice. 724. ( 359 TITLE IV. Of Protective Equity, Irrespective of Disability. CHAPTEE I. OF PROTECTION FROM LITIGATION OR INJURY. AFFORDED BY THE CANCELLING, DELIVERING UP, AND SECURING OF DOCUMENTS. The Court of Chancery assumed jurisdiction to Tit. IV. cancel, or rescind, or order the delivery of instru- — — : — ments which answered the end for which they were Jold instru"*^ made, or instruments which were voidable, or instru- y?^"*^ ^"5\ those which ments which were in reality void, and yet apparently have answered valid. This was done upon the principle, as it is "i"" P^^pos^- technically called, quia timet, that is, for fear that such instruments may be vexatiously or injuriously used, when the evidence to impeach them may be lost or diminished, or for fear that they may throw a cloud or suspicion over the plaintiff's title and interests. -(St. § 694, 698, 699, 700, 705 ; Cooper v. Joel, 27 Beav. 313; Williams v. Bull, 32 Beav. 574; Onions V. Cohen, 2 Hem. & M. 354.) And under the present practice all causes and matters for the rectification, or setting aside, or cancellation of deeds or other written instruments, are assigned to the Chancery Division of the High Court of Justice. (36 & 37 Vict. c. 66, s. 34 (3).) 725. 360 CANCELLING, DELIVERING UP, Tit. ly. ]3^t where the illegality of the instrument appears on the face of it, so that its nullity can admit of no doubt, the Court will not interfere ; because, in that case, the ground for interference does not exist. (St. § 700 a.) 726. The Court will generally cancel or rescind instru- ments, or order them to be delivered up, where there is an actual or constructive fraud, and the plaintiff has not participated therein, or is not in imri delicto ; or where there is an offence against public policy, and the ijlaintiff has participated therein, and is in pari delicto, but yet public policy would be more promoted by assisting the plaintiff, than by refusing to assist him. (St. § 298, 695 ; Milltoimi v. Stewart, 3 My. &, Cr. 18.) 727. Where both parties are concerned in an illegal act, it does not always follow that they stand in -pari delicto ; for one party may act under circumstances of oppres- sion, imposition, hardship, undue influence, or great inequality of condition or age ; so that his guilt may be far less in degree than that of his associate in the offence. (St. § 300.) 728. In cases of usury before the Usury Laws were abolished {ante, par. 40, n.), if the lender came into Court, seeking to enforce the contract, the Court would refuse to give any assistance, and would repudiate the contract. But, on the other hand, if the borrower came into Court, seeking relief against the contract, the Court would interfere, although only on the terms that the plaintiff would do equity, by paying the defendant what was really due to him, deducting the usurious interest. (St. § 301.) And if the borrower had paid the money, the Court would assist him to recover back the excess beyond principal AND SECURING OF DOCUMENTS. 361 and lawful interest; for the maxim, volenti non fit T'l- IV. .... ' ■ Cap. I. injuna, does not apply to the borrower, smce he — cannot be said to have voluntarily paid the usurious interest ; and as to being a participator in the offence, he was compelled to submit to the terms which oppression and his necessities imposed on him. (St. § 302.) 729. But relief is not granted where both parties are truly ill pari delicto ; for the maxim is, that in pari delicto, portior est conditio defendentis et possidentis. (St. § 298, 299.) An exception occurs, however, as already stated, where public policy would thereby be promoted ; as in the case of a gaming security {a), which is void, and money paid on it may be recovered back. (St. § 303, 304.) 730. The Court will not interfere between a voluntary Voluntary donor and donee, either by causing a voluntary deed ^^ ' or wTiting to be delivered up to the donor, or by decreeing specific performance of it in favour of the donee, unless the subsequent conduct of the donor has raised an equity for valuable consideration in favour of the donee. Nor could a purchaser for value of an interest in land from a voluntary donor require the voluntary deed or agreement to be delivered up to him to be cancelled, even before the Voluntary Con- veyances Act, 1898. {De Horfhton v. Money, L. R. 1 Eq. 154; 2 Ch. 164; Dillwjni v. Lleweli/n, 4 D. F. & J. 517.) 731. Where, in contemplation of marriage, a settlement was executed by the intended wife and her father, but not by the intended husband, and the marriage was never solemnized, the deed was declared void, and ordered to be delivered up. (Brooking v. Maudslay, (a) See Smith's Manual of Common Law, 11th ecL, par. 219 — 217. 362 CANCELLING, DELIVERING UP, Tit. IV. 38 C. D. 636.) But where, just before going through the marriage ceremony with his deceased wife's sister, a man vests property in trustees for her benefit, neither he nor his representatives after his death can set the gift or settlement aside. {Ayerst v. Jenkins, L. E. 16 Eq. 275.) But where a man, previously to going through the ceremony of marriage with his deceased wife's sister, executed a settlement reciting the in- tended marriage, and assigning certain property to trustees in trust for himself until the solemnization of the marriage, and after the solemnization thereof upon certain trusts for himself, his intended wife and children ; it was held that, as no valid marriage could take place between the settlor and his deceased wife's sister, the trust in favour of himself until the solemni- zation of the intended marriage continued, and the subsequent trusts never having arisen, the property remained in the settlor, and formed part of his personal estate. (Pawson v. Brown, 13 C. D. 202.) 732. A settlement made by an unmarried lady shortly after majority, without contemplating marriage with any particular person, will be set aside, as an improvi- dent act of a person who ought to be protected by the Court. {Everitt v. Evcritt, L. E. 10 Eq. 405.) But cases of this description depend upon the circumstances of each ease, and no general rule can be laid down as to the proper and usual provisions of a voluntary settlement ; but a power of revocation is not essential. In order to support a voluntary settlement against the settlor, it must be shown that all the provisions are proper under the circumstances, and usual, or if there are any unusual provisions, that they were brought to the notice of the settlor and understood by him. But the mere absence of a power of revocation, even if the AND SECURING OF DOCUMENTS. 363 attention of the settlor was not called to that absence, Tit. iv. does not make a voluntary settlement invalid. (Hall — ^ — '-^ — V. Hall, L. E. 8 Ch. 430.) A substantial reason must be proved why the deed should be set aside. (Henry V. Armstrong, 18 C. D. 668 ; Bonhote v. Henderson, (1895) 2 Ch. 202.) Thus where a young man of improvident habits who had just attained his majority was induced to execute a settlement by which he assigned money to trustees, upon trust to apply the income, or so much as the trustees should consider might be beneficially applied, for the settlor, or any wife or child of his, during his life, and after his death, upon certain trusts for his widow and children, with an ultimate trust for certain cousins; but he had no power of appointment in default of issue, and no power of revocation, and no power to appoint new trustees ; it was held that he could not set aside the settlement. (Phillips v. Mullings, L. E. 7 Ch. 244 ; and see James v. Coiichman, 29 C. D. 212.) 733. Forged instruments may be decreed to be delivered Forged instru- up, without any prior trial at law on the point of forgery. (St. § 701; Lee v. Angas, L. E. 7 Ch. 79 n.) 734. Assistance will often be given even in regard to Delivery up , . mi ^ 1 -11 1 ofunexoep- unexceptional mstruments. Ihe Court will order tional them to be delivered up to the party entitled to them, ^'p^.J"""*" if his title to the property to which they relate is not ejititled to disputed. But where the title to the possession of deeds and other writings depends on the validity of the title of the party to the property to which they relate, and he is not in possession of the property, and the evidence of his title to it is in his own power, or it does not depend on the production of the deeds or writings of which he prays the delivery ; in such case. 364 CANCELLING OF DOCUMENTS, ETC. Tit. IY. Cap. 1. Inspection and copies of deeds. Securing of documents. Delivery up of securities. he must first establish his title to the property before he can entitle himself to a delivery of the deeds. (St. § 703.) 735. Again, persons having rights and interests in real estate are entitled to an inspection and copies of the deeds under which they claim title. (St. § 704 ; see Order XXXI. ; Lyell v. Kennedy, 8 A. C. 217 ; and Conv. Act, 1881, s. 9.) 736. And remaindermen and reversioners, and other persons having limited or ulterior interests in real estate, have a right, in certain cases, to have the title- deeds secured or brought into Court for preservation. But this will not be directed, unless it clearly appears that there is danger of a loss or destruction of the instruments in the hands of the persons possessing them ; and also that the interest of the plaintiff is not too contingent or too remote to warrant the proceeding. (St. § 704.) 737. Bonds and notes given by a relative have been ordered to be given up by executors or administrators, where it has been fairly inferable, from the conduct of the deceased, that he did not intend that any use should be made of the securities. (See St. § 705 a — 706 a.) 738. ( 365 CHAPTEE II. OF PROTECTION FROM LITIGATION RESPECTING THE PROPERTY OF ANOTHER, BY MEANS OF INTER- PLEADER. Prior to the Judicature Acts the right of inter- Tit. IV. pleader at Common Law, which was regulated by ^^^ l '. 1 & 2 Will. IV. c. 58, and 23 & 24 Vict. c. 126, '^Zt'T ^'''^ TJl UC/cbo« differed from the right of interpleader in equity. (St. § 801.) Thus at Common Law a person could not formerly obtain interpleader, until one of the claimants had actually commenced an action against him ; but in Equity it was sufficient that a claim was made against him, and that he was in danger of being harassed by conflicting claims. Under the present practice, however, relief by interpleader may be granted in both the Queen's Bench and Chancery Divisions of the High Court of Justice, in cases where the applicant is under liability for any debt, money, goods, or chattels for or in respect 6i which he is or expects to be sued by two or more parties making adverse claims thereto ; and also where claim is made to goods taken in execution by a sheriff, by any person other than the person against whom the process issued. (Eules of Court, 1883, Order LVII.) 739. An interpleader is a ■ proceeding by which a person Definition of from whom two or more other persons, whose rights Xader!" he cannot readily determine, have claimed the same thing, wherein he hiihself claims no interest other 366 INTERPLEADER. Tit. IV. Cap. II. Illustrations in the case of landlord and tenant. Connection between the titles of the two claimants. Principal and agent. than for charges or costs, can compel them to contest the matter between themselves, without involving him in any vexatious litigation respecting it. (See St. § 806, and notes, and 807, 810—816, 820, 824; Jones v. Thomas, 2 Sm. & Gif. 186.) It is essential that the applicant should have no personal interest in the subject-matter, and that the dispute should be in respect of one and the same thing. {Greatorix v. Shackle, (1895) 2 Q. B. 249.) 740. Thus, where a tenant is liable to pay rent, but there are several persons claiming title to it, he is entitled to file an interpleader to compel them to ascertain to whom the rent is payable. (St. § 811 ; Cook v. Earl ofRosslyn, 1 Gif. 167.) 741. But where the title of the one claimant was not derived from that of the other, nor were both titles derived from the same common source but were independent of and adverse to each other, the party holding the property could not formerly obtain inter- pleader in Equity. Under the present practice, however, since the Judicature Act and Eules there- under, he is not disentitled to relief by interpleader, by reason only that the titles of the claimants have not a common origin, but are adverse to and indepen- dent of one another. (36 & 37 Vict. c. 66, s. 24 ; Ord. LVII. r. 3.) 742. Also property put into the hands of a private agent by his principal, or received by an agent for his principal, was not in Equity under the old practice the subject of an interpleader, on the assertion of a claim to it by a third person under an indepen- dent adverse title ; but the agent must have delivered it to the principal ; for the possession of the agent is the possession of the principal. And the like doctrine INTERPLEADER. 367 prevailed in favour of a third person to whom the Tit. IV. principal, after the bailment, had transferred the ' — ^^- - right to the property, where the transfer had been recognised and assented to by the agent. (St. § 817, 817 a, 818.) But if the principal had created an interest in or lien on the funds in the hands of the agent, in favour of a third person, and the nature and extent of that interest or lien was controverted between the principal and such third person, there an interpleader would lie. (St. § 817 a.) Under the present practice, however, the agent would be entitled to interpleader as against his principal or the trans- feree, where the property was claimed by a third person under an independent adverse title, without the creation by the principal of such an interest or lien as above mentioned. (See preceding paragraph.) 743. Where goods or chattels have been seized in Power tu execution by a sheriff or other officer charged with the execution of process of the, High Court, and any claimant alleges that he is entitled under a bill of sale or otherwise to the goods or chattels by way of security for debt, the Court or a judge may order the sale of the whole or a part thereof, and direct the application of the proceeds of the sale in such manner and upon such terms as may be just. (Ord. LVII. r. 12.) Scarlett v. Hanson, 12 Q. B. D. 213. 744. It is not necessary that proceedings should have Actual pro- been commenced either at Law or in Equity, in order to found a jurisdiction for an interpleader. (St. § 808.) It is sufficient -if the applicant expects to be sued. (Ord. LVII. r. 1.) 745. In order to prevent an interpleader being made the Preliminaries, instrument of delay or of collusion with one of the ceedings not necessary. 368 INTERPLEADER. Tit. IV. parties, the applicant must satisfy the Court or '■ — '■ — judge, by affidavit or otherwise, that he claims no interest in the subject-matter in dispute, other than for charges or costs ; that there is no collusion between him and any of the other parties ; and also, that he is willing to pay or transfer the subject-matter into Court, or to dispose of it as the Court or a judge may direct. (Ord. LVII. r. 2.) 746. ( 369 ) CHAPTEE III. OF PKOTECTION FKOM REPEATED OR RENEWED LITIGATION, AFFORDED BY DECREES UPON BILLS OF PEACE OR PROCEEDINGS TO ESTABLISH WILLS. Section I. Of Bills of Peace. That which was termed a Bill of Peace is a proceeding Tit. iv. filed to establish and perpetuate, in favour of or seot. I. against a number of persons, some general private Definition of right, which from its nature is likely to be sought to ^ ^^'^ °^ pG£lG6, be established or overthrown by different persons, at different times, and by different actions ; or to confirm and perpetuate a right which has been satisfactorily established by two or more trials at Law, but is in danger of being again controverted. (St. § 853, 854, 859.) 747. In the former of these classes of cases. Equity Ground ot interferes in order to prevent multiplicity of suits ; in the latter, to prevent oppressive litigation. (St. § 853, 854, 859.) 748. The former occurs in the case of a proceeding to Instance of settle the amount of a general fine to be paid by all the of bills of ^^^ copyhold tenants of a manor, or to establish a right P''^''®- of common of the freehold tenants of a manor. (St. § 856 ; Phillips v. Hudson, L. E. 2 Ch. 243 ; Warrick v. Queen's College, Oxford, L. E. 10 Eq. ci B B 370 BILLS OF PEACE. Tit. IV. Cap. III. Sect. I. Pre-requisites to a bill of peace. Rights ill contravention of public rights not protected in this way. Action to perpetuate testimony. 105 ; 6 Ch. 716 ; Jegon v. Vivian, L. E. 6 Ch. 742. For other instances, see St. § 855, 856.) 749. In most cases of this class, before Eolt's Act, 25 & 26 Vict. c. 42, enabling the Court of Chancery to try questions of fact, with or without a jury, it was held that the plaintiff ought to establish his right by a determination of a Court of Law, before he filed his bill in Equity. And if he did not do so, and the right he claimed had not the sanction of a long possession, and he had any means of trying the matter at Law, a demurrer would hold ; for the object of these bills, as their name itself imports, was simply to secure ',the quiet enjoyment of a right which, prima facie at least, clearly existed, and not to decide the question of a doubtful right. But by the above Act, the Court could itself decide the right, without directing an action or issue at law ; and could then make a decree finally binding on all the parties. {Warrick v. Queen's Coll., L. E. 6 Ch. 716.) 750. It seems that Courts of Equity, on principles of public policy, will not, on such a proceeding, decree a perpetual injunction for the establishment or the enjoyment of the right of a party who claims in contravention of a public right. (St. § 858.) 751. It does not appear that bills of peace are affected by the Judicature Acts, except that they would now be called actions in the nature of bills of peace. 751 a. Underthe present practice since the Judicature Acts, any person who would, under circumstances alleged by him to exist, become entitled upon the happening of any future event to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such PROCEEDINGS TO ESTABLISH WILLS. 371 event, may commence an action to perpetuate any Tit. iv. testimony which may be material for establishing such ^s^eci^l right or claim. (36 & 37 Viet. c. 66. ss. 16, 24; Order XXXVII. r. 35.) The evidence is usually taken before an examiner. {Marquis of Bide v. James, 33 C. D. 157.) 751 b. Section II. Of Proceedings to establish Wills. The proper jurisdiction for deciding as to the sucr. ii. vaHdity of wills, where they are actually contested, jurisdiction belongs to the Probate Division of the High Court of i'\g«iieial T ,- ws-rt belongs to the Justice 752. Court of 1. The heir-at-law might formerly by consent come y^^^ ^-'^^g into a Court of Equity for the purpose of having an issue to try the validity of the will at law. He could not come into Equity unless by consent ; because he had a legal remedy by ejectment, and if there were any impediments to the proper trial of the merits of such an ejectment, he could come into Equity to have them removed. (St. § 1447, note ; Egmont v. Darell, 1 Hem. & M. 563 ; Coicgill v. Rhodes, 33 Beav. 310.) Under the present practice since the Judicature Acts, however, every Court of each Division of the High Court of Justice is, with respect to the matters assigned to it, a Court of Equity as well as of Law ; and consequently, an heir-at-law would not now, in an action for recovery of the land, meet with any impediments which the Court could not deal with at the trial of his action. 753. 2. A devisee in possession, whether legal or BB 2 373 PEOCEEDINGS TO ESTABLISH WILLS. Tit. ly. equitable, has an equity to have the will established Sect. II.' against the heir, although the heir has brought no action of ejectment against the devisee, and although no trusts are declared by the will, and although it is not necessary to administer the estate under the direction of a Court of Equity. {Boyse v. Rosshorovbgh, 6 H. L. Cas. 1 ; Williams v. Williams, 33 Beav. 306 ; Lovett V. Lovett, 3 K. & J. 1.) But since a probate is now, by virtue of the Land Transfer Act, 1897, conclusive as to real estate as well as personal estate, and therefore conclusive as against the heir (see Wms. on Legal Repres. 38), it is conceived that there can no longer be any Equity in a devisee to have the will established against the heir. 754. 3. And where in an action a will is contested, and it is necessary to establish its . validity, in order to accomplish purposes such as the execution of trusts, the marshalling of assets, &c., the Court will direct the action to stand over in order that proceedings may be taken in the Probate Division to obtain probate of the will. In all divisions of the High Court the only evidence of a will whether of real or of personal estate is the probate ; and before you can ask the Court to look at the will and grant any relief upon it you must prove it. {Pinney v. Hunt, 6 C. D. 98 ; Land Transfer Act, 1897, s. 2. And see Meluish v. Milton, 3 C. D. 27 ; In re Ivory, 10 C. D. 372.) 755. ( 373 ) CHAPTER IV. OF PROTECTION FROM LOSS OR INJURY BY INJUNCTION. The jurisdiction in granting injunctions has arisen Tn-. iv. either from the want of any legal remedy, or from the — — 1 imperfection and inadequacy of the legal remedy in '^""^<^'<'*'°°- cases where any such remedy exists. (St. § 864.) 756. Injunctions were formerly divisible into two classes, viz., common injunctions and special injunc- tions. 757. By a common injunction was meant an injunction granted by the Court of Chancery to restrain proceed- ings in another Court. But since the Judicature Act, an injunction to restrain proceedings in one division of the High Court can no longer be granted by another division. {Garhutt v. Fawcus, 1 C. D. 155.) And where an administration or winding-up order has been made, the judge in whose Court such order has been made may order the transfer to himself of any cause or matter pending in any other Court or Division brought by or against the executor, or administrator, or company, as the case may be. (Order XLIX r. 5.) 758. By a special injunction is meant one which is injunctions granted to restrain the commission or continuance of temporary or some wrongful act, as for instance waste, nuisance, Pe'Pstual, infringement of patents, &c. They are either ST-i INJUNCTIONS. Tit. IV. Cap. IV. total or partial, qualilied or xmcon- ditional, preventive or restorative. temporary, as until a certain day named, or until further order, or until the hearing ; or they are perpetual, and amount to a perpetual prohibition. (St. § 873.) 759. Injunctions may be also either total or partial,, qualified or unconditional. (St. § 886.) And though they are generally preventive and protective, they may in some few cases be of a mandatory or restorative character. The former are by far the most common. (St. § 862.) 760. By the Judicature Act, 1873 (36 & 37 Vict. c. 66), S.26 (8), "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 be 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 oris not in possession under any claim of title or otherwise, 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 equitable." Notwithstanding the words "just or convenient" in this sub-section, it has been held that the effect of this provision is not to alter or extend the principles upon which the Court has always acted in granting injunctions. And the powers given by it must not be exercised by caprice, " but according to sufficient legal reasons, and on settled legal principles." (North INJUNCTIONS. 375 London By. v. Great Northern Rij., 11 Q. B. D. 30; 'fiT; IV. Brett's L. C. 320 ct scq.) 761. -_ i^liZl_ Under that Act, the Courts have power to grant Limit of injunctions in all cases in which it appears just and granting convenient so to do. But no injunction will be granted ™J™<=t'»"''- where the case is one, not of legal injury, but of mere inconvenience. {Da;/ v. Brownrigg, 10 C. D. 294; Street V. Ihiion Bank of Spain, 30 C. D. 156.) Nor where a mandamus is the natural and proper remedy. (Attorney-General v. Clerkenwell Vestry, (1891) 8 Ch. 527, 536.) And prima facie there can be no injunction to restrain actionable wrongs for which damages are the proper remedy. (London a'- Blachvall By. v. Cross, 31 C. D. 354, per Lindley, L. J.) In all doubtful cases where damages may be occasioned to the defendant, in the event of an interim injunction proving to have been wrongly granted, the Court will require the plaintiff seeking the injunction to give an undertaking to give such damages to the defendant as it may order ; and such undertaking is not confined to damage to the defendant. (Tucker v. Xeir Bruns- wick, ct'v., 44 C. D. 249 ; and see Fenner v. JVilson, (1893) 2 Ch. 656.) And the Courts decline laying- down any rule which shall limit their jjower and discretion as to the particular cases in which injunc- tions shall be granted or withheld. (St. § 959 b ; and for the law as to their discretion to grant or withhold injunctions, see Dolierty v. Allman, 3 A. C. 709.) And unless some special reason intervenes, they will General rule in all cases protect their own officers, who execute where they their process, against any suit brought against them ^i^^nted for acts done under or by virtue of such process (St. § •> •/ r over. (St. § 826, 839—848.) 789. III. Deposit III. The Court will also direct that papers and writings in the hands of executors and administrators shall be deposited with the Court for the benefit of those interested, unless there are other purposes which APPOINTMENT OF RECEIVER, ETC. 387 require that they should be retained in the hands of ^"- ^^"• the executors or administrators. (St. § 842.) 790. IV. The Court will not ordinarily entertain suits IV. Delivery of chattels. lor the specific delivery of chattels. But where the chattel is of such a nature that the loss of it could not be fully comj)ensated by damages, the Court will decree a specific delivery thereof. (St. § 708 — 710 ; Picsey V. Piisey, Duke of Somerset v. Cookson, 2 Wh. A Tu. 454 et seq.) And see Order XLVIII.) 791. cc 2 ( 388 ) TITLE V. Of Protective Equity in favour of Persons under Disability. CHAPTEE I. Tit. V. CAf. I. Jurisdiction. The Judi- cature Act, 1873, OF INFANTS. The care of infants, as persons who are not able - to protect themselves, belonged to the Sovereign, as parens patrice ; and this prerogative was delegated to the Court of Chancery from its establishment, and not to the Lord Chancellor only ; since the jurisdiction might be exercised as well by the Master of the Eolls as by the Chancellor, and since an appeal lay, as in other cases in which the Court of Chancery had a general jurisdiction, from the decision of the Court of Chancery to the House of Lords. (St. § 1333—7. Eyre v. Countess of Shaftesbxiry , 1 Wh. & Tu. 478 et seq.) It should be added that the Common Law Courts also exercised jurisdiction with respect to the custody of infants, and would, on an application for a habeas corpus by the father, enforce his right to their custody, even against the mother, unless cruelty or immorality on his part might be apprehended, or the infants were of age to elect for themselves as to their custody. (1 Wh. & Tu. 525.) 792. Now, however, the stat. 36 & 37 Vict. c. 66, enacts that "in questions relating to the custody and INFANTS. 389 education of infants the rules of Equity shall prevail " Tit. v. (section 25 (10)) ; and provides that aU causes and ^^''' ^' matters for the wardship of infants and the care of infants' estates shall be assigned to the Chancery Division of the High Court. (Section 34.) And the stat. 49 & 50 Vict. c. 27, also provides that all TheGuardian- applications to Court under that Act, are to be made Act^tsg'e^"*^ to the Chancery Division. (Section 9.) 793. Since the stat. 12 Car. II. c. 24, the father can, if a Appointment minor, by deed, and if of age, by deed or will, appoint °^ g"^^'^''™=- guardialis for his legitimate children. The Guardian- ship of Infants Act, 1886, has introduced great changes into the law respecting the guardianship of infants, in favour of maternal rights. It provides that on the death of the father, the mother is to be guardian either alone, where no guardian has been appointed by the father, or jointly with any guardian appointed by him ; and that when no guardian has been appointed by the father, or if any guardian appointed by him is dead or refuses to act, the Court may appoint a guardian or guardians to act jointly with the mother (section 2). The only ground for the interference of the Court in such a ease is the benefit of the infant. (Re X., (1899) 1 Ch. 526.) Also that the mother may by deed or will appoint a guardian after the death of herself and the father to act jointly with the guardian, if any, appointed by the father ; and may provisionally nominate a guardian to act jointly with the father after her death ; and the Court may confirm the appointment if the father is unfit to be sole guardian ; and if the guardians disagree, any of them may apply to the Court (section 3). Also that guardians under that Act are to have the power of guardians appointed under the stat. 12 Car. II. c. 24 (s. 4) . And that the 390 INFANTS. Tit. V. Car I. Custody of Infants Act, 1891. Removal of guardians. Religion. Court may remove any guardian and appoint another in his place (section 6). Guardians appointed by the Court are considered as officers of the Court, and are held responsible to it accordingly. (St. § 1338.) 794. By the Custody of Infants Act, 1891, the Court has full power and discretion to refuse the custody of his child to a parent who has abandoned or deserted the child, or has so conducted himself as to disentitle him to the assistance of the Court, or has been unmindful of his duties in allowing another person to bring it up. But the Court has power, even where it deprives the parent of the custody, to order that the infant shall be brought up in the religion on which the parent has a right to insist (section 4) . 794 a. The Court will remove a guardian of any kind, whenever sufficient cause can be shown for such a purpose, or will regulate and direct the conduct of the guardian in regard to the custody and education and maintenance of the infant, and, if necessary, will even appoint the school where he shall be educated, and will require security to be given, if there is any danger of injury to his person or property. (St. § 1339.) 795. \ Although it is the right of the father to have the custody of his children and to have them brought up in his own religion, the welfare of the infants is the paramount consideration, and the Court will in a proper case deprive him of the custody and disregard his wishes as to their religious education. {Re Newton {Infants), (1896) 1 Ch. 740.) But apart from anything disentitling him to that right, the rule of the Court is that the father has the right to control the religious education of his infant children, and that after his death, the children should be brought up in the religion INFANTS. 391 of their father. So that when a deceased father was a Tit. v. Cap. I. member of the Church of England, and the mother, who was their guardian, had become one of the Plymouth Brethren, she was restrained from taking them to a meeting-house of that sect. {In re Narbery, L. E. 1 Eq. 431 ; 1 C. 263 ; In re Besant, 11 C. D. 508.) And the rule that the father has the right to decide what religious education his children shall receive, and that after his death the guardians of the children are bound to see that they are brought up in the religious faith of their father is unaffected by the Guardianship of Infants Act, 1886. Thus, where, on the death of the father, the mother, by virtue of that Act, becomes their guardian by law, either alone when no testamentary guardian is appointed by the father or jointly with any guardian appointed by him, she has no greater powers with respect to their religious education than a guardian before the Act, and is bound to see that the children are brought up in the religious faith of their father unless under very special circumstances. And where the deceased father was a Protestant and the mother a Eoman Catholic, the Court under section 2 of the Act appointed two Protestants to act jointly with her as guardians of the children, and directed that they should be brought up as members of the Church of England. {In re Scanlan, 40 C. D. 215.) 796. Of course the father may waive this right. But he does not waive or forfeit it, even by ar- pre-nuptial engagement that the children shall be brought up in the religion of the mother; for all such agreements whether before or after marriage are absolutely void, and he has the legal right to the custody and control of his children, as against the mother, and as against 392 INFANTS. Tit. V. the children while under age, and as against any '■ other guardian, and even as against the Court itself, unless in consequence of moral misconduct or physical inability, or of the profession of immoral or irreligious opinions deemed to unfit him to have the charge of his children, it would be highly inexpedient for the interests of the children to allow him to exercise his parental authority over them. And the Court will by injunction enforce his authority as against the mother or children or guardian. In some cases the Court will examine the children to ascertain what course it would be expedient to adopt ; in other cases, the Court will leave it entirely to the father. (Stortrton v. Stourton, 8 D. M. & G. 760 ; In re Agar-Ellis, Agar- Ellis V. Lascelles, 10 C. D. 49, 69—76 ; In re Clarke, 21 C. D. 817 ; Re McGrath, (1893) 1 Ch. 143 ; Re Newton, (1896) 1 Ch. 740 ; Brett's L. C. 94.) 796 a. Court may By the stat. 36 Vict. c. 12 (24th April, 1873), it is mother may enacted that "from and after the passing of this Act toandcnstod ^* ^^^^^ ^® lawful for the Court, upon hearing the of infant petition by her next friend of the mother of any infant years. or infants under sixteen years of age, to order that the petitioner shall have access to such infant or infants at such times and subject to such regulations as the Court shall deem proper, or to order that such infant or infants shall be delivered to the mother, and remain in or under her custody or control, or shall, if already in her custody or under her control, remain therein until such infant or infants shall attain such age, not exceeding sixteen, as the Court shall direct; and further, to order that such custody or control shall be subject to such regulations as regards access by the father or guardian of such infant or infants, and otherwise, as the said Court shall deem proper " INFANTS. 393 (section 1). (Ec Tai/lor, -i C. D. 157.) But this enact- Tit. v. Cap. I. ment would appear to be to a great extent superseded — by the provisions of the stat. 49 & 60 Vict. c. 27, which ship of Infants enacts that '"'the Court may, upon the appKcation of ° ' the mother of any infant (who may apply without next friend), make such order as it may think fit regarding the custody of such infant, and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or discharge such order on the application of either parent, or after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of the mother, and the liability of the father for the same or otherwise as to costs as it may think just" (section 5). The position of father and mother in respect of the custody of their children is materially altered by this section. (See Re A. d: B., (1897) 1 Ch. 786.) 797. The Court will also assist guardians in compelling Assistance of their wards to go to the school selected by the guardians, " as well as in obtaining the custody of the persons of their wards, when they are detained from them. {St. § 1340.) 798. In general, parents are entrusted with the custody Removal of and education of their children, on the natural thei^'pa\.eX presumption that the children will be properly treated, and that due care will be taken of them in regard to learning, morals, and religion. But whenever this presumption is negatived by the actual state of the case, and a father or a mother is guilty of gross ill- treatment of his or her infant child, oris living in habits of gross immorality, or otherwise acts in a manner 394 INFANTS. Tit. \'. injurious to the morals or interests of his or her '- children, the Court will deprive him or her of the custody of his or her children, and appoint a suitable person to act as guardian. (St. § 1341-9 ; In re Besant, 11 C. D. 508 ; Smart v. Smart, (1892) A. C. The Guardian- 425; Brett's L. C. 93.) And it is now provided by- ship of Infants . Act, 1886. the stat. 49 & 50 Vict. c. 27, that m case of divorce or judicial separation of the parents, the Court may declare the guilty parent unfit to have the custody of the children (s. 7). 799. Conversion of Guardians may not change the nature of the property. property, unless it is manifestly for the benefit of the infant ; indeed, it has been said that there must be an overwhelming necessity for the conversion. {Camden V. Murray, 16 C- D. 161, 171.) And although there is no equity in such a case between the representatives of the infant, nevertheless, for the purpose of preventing any such acts of the guardian, in case of the death of the infant before he comes of age, from changing improperly, through partiality or otherwise, the rights of the parties, who, as heirs or distributees, would otherwise be entitled to the property, the Court holds, lands purchased by the guardian with the 'infant's personal estate, or with the rents and profits of his real estate, to be personalty, and distributable as. such; and on the other hand, treats the proceeds arising from the sale of real property (as, for example, of timber cut down on a fee-simple estate of the infant) as real estate. Guardians should in all cases apply for the sanction of the Court to acts of this sort ; and, when the Court directs any such change of property, it directs the new investment to be in trust ior the benefit of those who would be entitled to it, if it had remained in its original INFANTS. 395 state. (St. § 1357 ; Warwicker v. Bretnall, 23 C. D. Tit. v. 188.) 800. ^^'•- ^- Sometimes infants become wards of Com-t. Properly Who are speaking, a ward of Court is a person who is under court. °*^ a guardian appointed by the Court. But whenever a suit is instituted in the Court relating to the person or property of an infant, although he is not under any general guardian appointed by the Court, he is treated as a ward of the Court. (St. § 1352 ; Gi/nn v. Gilbard, 1 Dr. & Sm. 356.) And even a mere order for maintenance made without suit or payment mto Court under the Trustee Act, constitutes an infant a ward of Court. ' {In re Graham, L. R. 10 Eq. 530 ; Brown v. Collins, 25 C. D. 5o ; Simpson on Infants, 241.) 801. Any act affecting the person or state or property ah acts of a ward of Court, unless done under the express ^ff^t^tingt'ie™ or implied direction of the Court, is treated as a ""der the . direction of Violation of the authority of the Court, and the the Court. offending party will be arrested for that contempt, and compelled to submit to such order, and to such punishment by imprisonment, as are applied to other cases of contempt. (St. § 1353.) 802. Whenever an infant is a ward of Court, and a suit Maintenance. is depending in the Court as to his property, the Court will direct a suitable maintenance for the infant, having a due regard to his rank, intended profession or employment, property, and expectations. (St. § 1354.) And maintenance will also be ordered even where the infant is not a ward of the Court, and not resident within the jurisdiction, iE he has no father, or his father is unable to maintain him. (See St. § 1354, 1354 a, 1354 b.) 803. Where a legacy is given to a child, whether 396 INFANTS. ^'T. V absolutely or contingently on his attaining twenty-one, Cap. Ii the income of the legacy is, by the Conveyancing Act, 1881, s. 43, available for his maintenance, if the bequest carries the right to intermediate income. {Re Holford, (1894) 3 Ch. 30 ; Brett's L. 71 ; Arnold V. Burt, (1895) 2 Ch. 577.) And this is so, though the interest is directed to be accumulated, and the parents' interest is considerable. {Kimj-Harman v. Cayleij, (1899) 1 Ir. E. 39 ; and see Hunt v. Parry, 32 C. D. 383.) 804. The Court has power to charge reversionary pro- perty of infants with money required for their main- tenance, even where some of them may never become entitled to possession. {De Witte v. Palin, L. E. 14 Eq. 251 ; Re Tanner, 53 L. J. Ch. 1108 ; but see and comp. Cadman v. Cadman, 33 C. D. 397.) 805. The Court is governed by a regard to the circum- stances and state of the family to which the infant belongs, in respect to the allowance of maintenance and to the amount of such allowance. So .that, although there may be a trust for maintenance under which the whole income may be applied, yet the Court will not apply more of it than necessary, where the infants have other sources of income, sufficient to suitably maintain and educate them according to their position in life. (White v. Grane, 18 Beav. 571; King- Harman v. Cayley, supra.) And if the father is able to maintain the infant out of his own property, the Court will ordinarily withhold all allowance from the property or income of the infant for the maintenance of the latter, even though there may be a power (as distinguished from a trust) in the settlement or will, at the discretion of the trustees, to appoint part of the income for the purpose of his maintenance and INFANTS. 397 education. (St. § 1354 a, and note ; Bryant v. Tit. v. Hickleii, (1894) 1 Ch. 3'24.) But if there is a contract '—^-^ on marriage, amounting to a trust that property shall be applied for the maintenance and education of the children, the property must be applied, without reference to the ability of the father to maintain and educate them. {Thompson v. Griffin, 1 Cr. & Ph. 320.) And if the infant is an eldest son, and the younger children have no provision made for them, an ample allowance will be decreed to him, in order that the younger children may be maintained. And the Court will act in a similar way where the father or mother of the infant is in distress or narrow circumstances. (St. § 1355 ; Brown v. Smith, 10 C. D. 377; Re Roper, 11 C. D. 272; Barnvs v. Ross, (1896) A. C. 625.) 806. The Court, however, in allowing maintenance, almost always confines it within the income of the property. But where the property is small, and more means are necessary for the due maintenance of the infant, part of the capital will sometimes be directed to be applied for the purpose. But without the express sanction of the Court, a trustee or guardian should not so apply any part of the capital. (St. § 1355 ; and see ante, par. 806.) 807. The words "maintenance, education, and bringing up," standing together, have reference to minority only. But the same principles apply mutatis mutanclin where other dates or contingencies are mentioned. It must, however, be borne in mind that the Conveyancing Act does not apply, where vesting is postponed beyond twenty-one years {Re Judkiu, 25 C. D. 743) ; and that in such cases the rule against perpetuities may vitiate the whole gift, unless any part is clearly severable S98 INFANTS. Tit. V. (jjg Stevens, (1896) W. N. 24 ; Re Wise, (1896) 1 Ch. Cap. I. 281) ; or may avoid the accumulations pro tanto where they infringe the Thellusson Act. (Re Mason, (1891) 3 Ch. 467.) 808. Where the income of property is given to the mother for the maintenance of herself and her children, she is to receive the whole income, and maintain the children out of it, so long as they form part of her family ; hut when they are forisfamiliated as by marriage, they lose the right to maintenance. (2 Sp. 461; but see ante, par. 233; and Re G., 1 Ch. 799.) 809. Property Where infants resident here become entitled to decreed to i j. j j.t, j c i ■ infants by personal property, under the decree of a foreign foreign Court, tribunal, it will be administered for their benefit here, just as any other property. (2 Sp. 13, 14.) 810. Marriage of a If a man marries a ward of Court without the Court°without Consent of the Court, even though with the consent of the consent. the guiardian, he and all others concerned in aiding and abetting the act, are treated as guilty of a contempt of Court ; and even though he was ignorant that she was a ward of the Court, he is deemed guilty of a contempt. (St. § 1358.) 811. Eecognizance Where the Court appoints a guardian, or committee of Court"ha]i i^ ^^^ nature of a guardian, to have the care of an . not marry. infant, it is accustomed to require the guardian or committee to give a recognizance that the infant shall not marry without the leave of the Court ; so that if the infant should marry even without the knowledge or neglect of the guardian or committee, yet the recognizance would in strictness be forfeited, whatever favour the Court might think fit to show to the party, when he should appear to have been in no fault. (St. § 1359.) 812. INFANTS. 399 Where there is reason to suspect an improvident Tit. v. marriage without its sanction, the Court will, by ^7^ — an injunction, not only interdict the marriage, but of intended also all communications between the ward and the ^ard^of-^ °* * admirer ; and if the guardian is suspected of any Court, and of Q fli'lppQOpQ connivance, the Court will substitute a committee in his stead. (St. § 1360.) 813. In case of an offer to marry a ward of Court, the Settlement on " a ward of Court will inquire and ascertain whether the match is Court. a suitable one, and what settlement ought to be made on the marriage ; and it is not competent to the parties, by delaying the marriage until the wife has come of age, to defeat the settlement approved by the Court. (2 Sp. 499.) And when a man has been committed for a contempt in marrying a ward of Court without its sanction, he will not be discharged until he has actually made such a settlement as shall have been deemed proper by the Court. And this will be the case even where the ward has subsequently come of age, and is ready to waive her right to a settlement ; for the Court will protect her against her own indiscretion and the undue influence of her husband. (St. § 1361.) 814. Where a settlement is executed a few days after the ward of Court has attained her majority, and is pursuant to proposals made a very short time before she attained her majority, and is such as the Court would not approve of, it will be rectified, if at least it was the work of her friends, and she was not made to understand its effect, and not called upon to exercise her judgment upon it. {Money v. Money, SI>reyv. 256.) 815. If a ward of Court marries a few days after majority, the Court will decline to order her fortune to be paid out of Court, and will refuse to do more 400 INFANTS. Tit. V. Cap. I. Settlement on an infant wlio is not a ward of Court. Control over guardians and others for the benefit of infants. Cancellation nfapjirentice- .shij). than order payment of the income during their joint lives, or until further order, without prejudice to- any question, and with liberty to apply. {Biddle v. Jackson, 26 Beav. 282.) 816. The Court has no power to order a settlement of the property of an infant, not being a ward of Court, who has married after attaining the age at which she is capable of contracting a marriage. {In re Potter, L. R. 7 Eq. 484.) But under the Marriage Act, (4 Geo. IV. c. 76), where a minor has married without, the guardian's consent, the Court can decree a settle- ment. (Re Phillips, 34 C. D. 467.) And under the Infants' Settlement Act (18 & 19 Viet. c. 43), the Court may by its sanction enable infants to make binding marriage settlements when they have attained the age of twenty-one if males, or seventeen if females, although the marriage may have taken place before such ages. {In re Phillips, 34 C. D. 467.) But an infant's settlement, though made without the sanction of the Court, is only voidable and not void. It is- valid until disaffirmed, and unless repudiated within a reasonable time, the infant is absolutely bound by it. Viditz V. O'Hagan, 68 L. J. Ch. 553.) 817. The Court will exercise a vigilant care over infants in the management of their property,; and will also aid and protect infants against other persons than those who are guardians; such, for instance, as intruders upon the estate. (St. § 1356.) 818. The Court has no jurisdiction to order the cancella- tion of articles of apprenticeship and the return of a, portion of the premium, on the ground of the wrongful refusal of the master to continue to instruct his appren- tice in his trade according to his agreement. {Webb v, England, 29 Beav. 44 ; and see ante, par. 624.) 819, ( 401 CHAPTER II. OF MARRIED WOMEN. At the Common Law, the being or legal existence Tri. V. of the wife, for almost all purposes, is considered as ^ -— merged in that of the husband. (See St. § 1367.) d™e!^'''' But Courts of Equity, in many respects, treat husband Division of •' •- ' the subject of and wife as distinct persons. (St. § 1368.) And this the doctrines distinctness of interest has been greatly extended by toman'iJa'^^ the Married Women's Property Acts. 820. '™'"''"- In illustration of this, let us consider. I. The powers which they have, in Equity, of contracting with, and giving and granting to each other. II. The wife's pin-money and paraphernalia. III. The wife's separate estate. IV. The equity of the wife to a settlement or maintenance out of her own property. V. Some miscellaneous points. 821. Section I. The Powers which Husband and Wife have, in Equity, of contracting with, and giriiui and granting to, each other. ^ Sect. I. I. At Law, contracts made bet-ween husband and I- Contracts wife before marriage were generally extinguished by marriage. s. D D 402 MARRIED WOMEN. Tit. V. Cap. II. Sect. I. The Married Women's Property Act, 1882. II. Contracts after marriage. the marriage in acordance with the old legal doctrine that husband and wife were one person. But Courts of Equity, although they generally followed the same doctrine, enforced such contracts, where it would be in futherance of the manifest intention of the parties to do so ; as in the ease of an agreement by husband and wife for a settlement on marriage. (St. § 1370, 1371.) Now, however, the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), has removed the inability of husband and wife to contract with one another, and to sue one another on such contracts. (See sections 1, 12, infra, pars. 857, 845.) But it has been held that a husband cannot sue his wife in respect of a debt incurred by her to him before marriage, but that he can sue her in respect of a contract made after marriage and intended to bind her separate estate. And the wife can sue her husband in respect of a contract made by him after marriage. {Butler v. Butler, 14 Q. B. D. 831 ; 16 ibid. 374.) 822. II. Contracts made between husband and wife, after marriage, were a mere nullity at Law ; but under peculiar circumstances they were enforced in Equity if of a reasonable nature. Thus, if the husband contracted with his wife, for good reasons, that she should separately possess and enjoy property bequeathed to her, the contract would be upheld in Equity. (See St. § 1372 ; Hewison v. Negus, 16 Beav. 594 ; Anderson v. Abbott, 23 Beav. 457.) Also con- tracts affecting property belonging to the wife for her separate use, and contracts relating to the separation of husband and wife, as well as the compromise of legal proceedings between them in the Divorce Court, would be enforced. And the Married Women's Property Act, 1870, s. 11, enacted that " a married woman might MARRIED WOMEN. 403 maintain an action, in her own name, for the '{""• ^- Gap. II. recovery of any property belonging to her before Seot. l. marriage, and which her husband had agreed in writing should belong to her after marriage as her separate property." {Dije v. Dye, 13 Q. B. D. 147.) The Act of 1882 repeals that Act and also the amending Act, 37 & 38 Vict. c. 50, but provides that " such repeal shall not affect any act done or right acquired while either of such Acts was in force, or any right or liability of any husband or wife married before the commencement of this Act, to sue or be sued under the provisions of the said repealed Acts or either of them, for or in respect of any debt, contract, wrong, or other matter or thing whatsoever, for or in respect of which any such right or liability shall have accrued to or against such husband or wife before the com- mencement of this Act." (Section 22; Re TwmbiiU, (1897) 2 Ch. 415.) So the wife might even become a creditor of her husband : and her rights, as such, would be enforced against him and his representatives. Thus, if a wife raised money out of her estate, to answer his necessities, whatever be the mode adopted to carry that purpose into effect, she would in Equity be entitled to reimbursement out of his estate. (St. § 1373 ; rf. Paget v. Pac/et, (1898) 1 Ch. 470.) 823. And now under the Act of 1882, husband and wife are free to enter into contracts with one another and to sue one another "in contract or in tort or other- wise," the proceedings in tort being apparently restricted to those by the wife for the protection and security of her separate property (see sections 1, 12, infra, pars. 857, 845) ; but their powers of contracting inter si' are limited to contracts not contrary to public policy. (See remarks of Jessel, M. E., in Besant v. D D 2 404 MAEEIBD WOMEN. Tit. V. Wood, 12 Ch. D. 620.) And with respect to loans by Sect. 1. the wife to the husband that Act enacts : "Any money or other estate of the wife lent or entrusted by her to her husband for the purpose of any trade or business carried on by him, or otherwise, shall be treated as assets of her husband's estate in case of his bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the amount or value of such money or other estate after, but not before, all claims of the other creditors of the husband for valuable considera- tion in money or money's worth have been satisfied." (Section 3.) This also applies where the husband dies insolvent. (Re Long, (1895) 1 Ch. 652.) And it applies unless it is shown that money was not lent to the husband for the purpose of his business {Mackintosh v. Poyose, (1895) 1 Ch. 505) ; but if lent to a - trading partnership of which the husband is a member, the wife so far as respects the joint estate is not postponed to other creditors. {Re Tuff, 19 Q. B. D. 88.) 823 a. III. Gifts and jn. Gifts and grants too, whether express or implied, grants after marriage. by a husband to his wife, after marriage, although ordinarily void at Law, would be in some cases enforced in Equity (see Re Breton, 17 C. D. 416). But now by the Act of 1882, the former incapacity of married women to acquire real and personal property is taken away, and they are capable of receiving or making gifts and grants from or to their husbands as well as from or to other persons, as if they were unmarried. (But see section 10 as to such gifts being void against the husband's creditors.) 824. It was held before the Married Women's Property Act, 1882, and is no doubt still the law, that if a husband places money in a bank in the name of his. MARRIED WOMEN. 40 5 wife, without any indication that he thereby intends J^it. v. •' . •' Cap. II. an advancement or gift to her separate use, it will Sect. I. remain the property of the husband. {Lloyd v. Pnghe, L. E. 8 Ch. 88.) And so in the case of a purchase by a husband of stock in the joint names of the husband and wife. (2 Wh. & Tu. 830; and see post, par. 837.) 825. Section II. Pin-money and Paraphernalia. I. Pin-money is not deemed to be an absolute gift ; sbot. II. it is not considered like money set apart for the sole i. pin-money. and separate use of the wife during coverture ; but it is a sum payable by the husband to the wife, in virtue of a particular arrangement, and to be applied by the wife in attiring her person in a manner suitable to the rank of her husband, and in defraying other personal expenses — a sum allowed to save the trouble of a constant recourse by the wife to the husband, in order to meet her ordinary personal expenses. (See St. § 1375 a, and note ; Jodrell v. Jodrell, 9 Beav. 45.) 826. Such being the peculiar nature of this provision, Arrears ,. ... J. ., thereof. the wife cannot make a sweeping disposition oi it, as she can of her separate estate. It vests in her as separate estate as against her husband, but not against his creditors unless made by marriage settlement. And Courts of Equity refuse to call upon the husband to pay beyond the arrears of a year, although stipulated for by a marriage settlement. For, setting aside the presumed satisfaction by acquiesence, the money is 406 MARRIED WOMEN. Tit. V. Cap. II. Sect. II. The Married Women's Property Act, 1882. II. Parapher- nalia. Rule of Law respecting them. Rule of Equity, where tliey were given by the husband, meant to dress the wife during the year, so as to keep up the dignity of the husband, and not for the purpose of accumulation. And, on the same principle, the personal representatives of the wife are not allowed to make any^claim even for arrears of a year. (St. § 1375, 1375 a, 2 Sp. 501.) 827. The Married Women's Property Act, 1882, would not, it is conceived, affect any provision for pin- money made by marriage settlement (as to which see Elphinstone's Introduction, 265), but as regards provisions for pin-money or gifts in the nature of pin- money made during coverture, it remains to be seen whether any distinction between pin-money and separate estate can be maintained. 827 a. II. The wife's paraphernalia are personal apparel and ornaments of the wife, suitable to her rank and condition in life. (St. § 1376.) Old family jewels, though worn by the wife, do not constitute part of her paraphernalia, unless she has acquired them by gift or bequest. {Jervoise v. Jervoise, 17 Beav. 566.) 828. At Law, the husband may, in his lifetime, but not by his will, dispose of the wife's paraphernalia, with the exception of necessary apparel ; and they are liable to the claims of creditors with the like exception. And if the articles were given by the husband, either before or after marriage. Courts of Equity fully recognize this right of the husband and his creditors, instead of treating the articles as absolute gifts to the wife for her separate property; although, in the case of creditors, claiming against the assets of the husband, his personal assets will be marshalled against his representatives in favour of the widow. But if the articles were bestowed on MARRIED WOMEN. 407 the wife by any one else, they will be deemed absolute '^^''■'- '^■ Cai-", II. gifts to her separate use, and then, if received Sect. il. with the consent of the husband, neither he ovwheregiven nor his creditors can dispose of them. (St. § 1376, efse!"^""" 1377.) 829. The Married Women's Property Act, 1882, has not The Married abolished the general law as to gifts of paraphernalia. Property Act, But it seems doubtful whether a gift of paraphernal articles by a husband to wife will now be construed as an out and out gift or as a gift of paraphernalia in the old sense. {Re Vansittart, (1893) 1 Q. B. 181 ; Taskcrx. Tasker, (1895) p. 1.) 829 a. 1882. Section III. The Wife's Separate Estate. I. With regard to the means of acquiring separate seot. iit estate, it will be convenient to consider first, those j Means cases which are not affected by the Married Women's *<=1""ing Property Act, and then those cases which fall within it. 1. Whenever real or personal estate is given, j By gift granted, devised to, or settled on a woman, either with grant, devise, . . . or settlement. or without the intervention of trustees, whether after marriage, or as a provision on marriage, or not in contemplation of immediate marriage, and whether by her husband or by a mere stranger, it will be deemed separate estate if it clearly appears that the property was intended for her separate use. (St. § 1380, 1381, 1384 ; Huhne v. Tenant, 1 Wh. & Tu. 654 ; Brett's L. C. 25.) Thus, a bequest to a married woman, " for her own use, and at her own disposal," has been held to be a bequest to her separate use. So money paid 408 MARRIED WOMEN. Tit. V. to the husband " for the livelihood of the wife " and Sect. III. other similar expressions, which are inconsistent with any interference on the part of the husband, have been construed as gifts to her separate use. (St. § 1382 ; Lewin, 10th. ed. 923.) But where the expressions do not clearly show that the husband is to be excluded from his marital rights, the wife will not take for her separate use. Thus, in the case of a direction to pay money to her "absolute use," or "into her own proper hands," or "for her own use and benefit," it has been held that although the money is to be for her own use, yet there is nothing in that inconsistent with its being subject to the husband's marital rights. (St. § 1383 ; Lewin, 10th ed. 924.) And a direct gift to a woman who is either single or will become discovert on the testator's death, for her sole use and benefit, does not create a separate estate {Gilbert v. Leivis, 1 D. J. & S. 38 : and see Lewis v. Matheivs, L. E. 2 Eq. 177; Masseyv. Bowen, L. B. 4 H. L. 288), unless aided by other expressions in the will or other circumstances ; such as the fact that the instrument shows that the marriage of the person spoken of was contemplated by the author of it. {In re Tarsey's Trust, L. E. 1 Eq. 561.) But a gift, by way of trust, for her sole benefit, to a married woman, does create a separate estate {Green V. Britten, 1 D. J. & S. G49; Guthrie v. Walrond, '2.'i C. D. 573) ; and where a precatory trust has been created by will in favour of children, simpliciter, the trustee may, in execution of the trust, limit the shares of the daughters to their separate use. {Willis v. Kymer, 7 C. D. 181.) Where personal property is vested in a woman for her separate use without any restraint on anticipation, with remainder as she shall by deed or will appoint, with remainder to her MAKRIED WOMEN. 409 executors or administrators, this is equivalent to an Tit. v. absolute gift for her separate use. {London Chartered Seot. III. Bank of Australia v. Lcmpricre, L. E. 4 P. C. 572, 575, 576 ; Plowden v. Gayford, 39 C. D. 622.) 830. With respect to existing settlements and the power to make future settlements, the Act of 1882, s. 19, provides that " Nothing in this Act contained shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman, or shall interfere with or reVider inoperative any restriction against anticipation at present attached or to be hereafter attached to the enjoyment of any property or income by a woman under any settlement, agreement for a settlement, will, or other instrument ; but no restriction against anticipation contained in any settlement or agreement for a settlement of a woman's own property to be made or entered into by herself shall have any validity against debts contracted by her before marriage, and no settlement or agreement for a settlement shall have any greater force or validity against creditors of such woman than a like settlement or agreement for a settlement made or entered into by a man would have against his creditors." This has been held not to apply to settlements made before the Act. (Beckett v. Tasker, 19 Q. B. D. 7.) Such debts include debts contracted during a former marriage (Jay v. Robinson, 25 Q. B. D. 467), and debts of a testator who devised land to her before her marriage {Re Hedgely, Small V. Hedgebj, 34 C. D. 379). The effect of this section, to which a wide interpretation has been given, is to prevent the application of the 5th section {Beeinfra, par. 884) to property comprised in an ante-nuptial 410 MARRIED WOMEN. Tit. V. Cap. II. Sect. III. 2. By caviyiug on a separate trade in Loudon : or even else- where, by agreement before miirriase : by agreement after mamage ; or post-nuptial settlement, where its effect would be to alter the destination of such property. Thus, where, in such a settlement, there is a covenant by husband and wife, or a covenant by the husband only, to settle after-acquired property of the wife married before the 1st of January, 1883, and the wife after that date becomes absolutely entitled to property not expressed to be for her separate use, the effect of section 19 is to prevent section 5 from making that property the separate property of the wife, so as to exclude the operation of the covenant, although, if the property had been expressed to be for the separate use of the wife, it would not have been bound by the covenant. {In re Stonor's Trusts, 24 C. D. 195 ; Christian v. Whitaker, 34 C. D. 227 ; Hancock v. Hancock, 38 C. D. 78 ; Sterens v. Trerur-Garrick, (1893) 2 Ch. 807.) 830 a. 2. By the custom of London, a married woman may carry on trade within the City, as a sole trader, and be liable as such ; and then her property employed in the business, as well as her earnings, will be her separate property. But, independently of any such custom, if it is agreed between the husband and wife, before marriage, that the wife shall be allowed to carry on a separate trade, such an agreement will be maintained at Law against the husband : and being an agreement for valuable consideration, namely, that of the intended marriage, it will also be maintained at Law against his creditors. And if such an agreement is made after marriage, and the property employed in the business be vested in trustees for the wife, it will be maintained at Law against the husband ; and if it is on valuable consideration, against his creditors also; for, in such case, the wife's trustees will, at MARRIED WOMEN. 411 Law, be entitled to the property vested in them, and Tit. \. to the increase and profits thereof, and she will be Sect. hi. considered at Law as their agent, and her possession as their possession. The trustees, however, will be regarded in Equity as holding such property, and receiving the increase and profits thereof, for the sole and separate use of the wife. And thus in such cases where trustees are interposed, the beneficial interest in the property, and the increase and profits thereof, are secured to the wife by the joint operation of Law and Equity. By the operation of Law, the legal estate is vested in the trustees, and taken out of the power of the husband. By the operation of Equity the beneficial interest is vested in, and secured to, the wife, against her husband, and, if the agreement is for valuable consideration, against his creditors also. But even where there are no trustees interposed, such an agreement has the force, in Equity, of creating a separate estate for the wife, and securing it against the husband ; and, if the agreement is for valuable consideration, against his creditors also. And this is even tliough 1 , 1 1 ■ , 1 • 1 ■ 1 , the agreement the case even though it be a mere implied agreement, be merely So that if the husband should permit his wife, after the '^P ^^^ ' marriage, to carry on business on her sole and separate account, all her earnings in the trade will be her separate property. And if a husband should desert his wife, and she should be enabled, by the aid of her friends, to carry on a separate trade, her earnings in such trade will be enforced in Equity against her husband, independently of the stat. 20 & 21 Vict. c. 85, ss. 21, 25. (See St. § 1385—1887.) 831. 3. By the stats. 20 & 21 Vict. c. 85, s. 21 ; 21 & 22 Vict. 3. By an •' order of c. 108, s. 8 ; and 41 Vict. 19, s. 4, if a wife is deserted protection, or by her husband, she may obtain an order of protection seimrition"' 412 MARRIED WOMEN. Tit. V. Cap. II. Sect. III. 4. The Married Women's Property Act, 1870. The Married Women's Property Act, 1882. Property and earnings of k woman married after the Act to be held by her as a feme sole. of her property against her husband and his creditors ; and by section 25 of the former Act, if judi- cially separated, she is to be deemed a feme sole as regards property (see Waite v. Morland, 38 C. D. 135) ; and in case of subsequent cohabitation, it shall be held to her separate use, subject to any agreement. {Re Emery, 50 L. T. 197.) 832. 4. The Married Women's Property Act, 1870, enacted that the separate earnings, deposits in savings banks, property in the funds, joint stock companies and societies, of a married woman, personal property coming to her as next of kin, personal property not exceeding £200 coming to her under any deed or will, and the rents and profits of real property coming to her as heiress or co-heiress of an intestate, shall belong to her for her separate use, and also contained provisions respecting policies of assurance taken out for the benefit of the wife, either by husband or wife. 833. The Act of 1882 has, by section 22, repealed the stat. 33 & 34 Vict. c. 93, except as to acts done, and rights or liabilities accrued, under the latter Act while in force (see supra, par. 823), and after providing that a married woman shall be capable of disposing of her property, both real and personal, as if she were a feme sole, enacts: "Every woman who marries after the commencement of this Act shall be entitled to have and to hold as her separate property, and to dispose of in manner aforesaid, all real and personal property which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, including any wages, earnings, money, and property gained or acquired by her in any employment, trade, or occupation, in which she is MAREIED WOMEN. 413 engaged, or which she carries on separately from her Tit. \ . husband, or by the exercise of any Uterary, artistic, or Sect, rii scientific skill "(section 2). And "every woman married property before the commencement of this Act shall be entitled t^eA'rt byT to have and to hold and to dispose of in manner ""man married before aforesaid as her separate property all real and personal tlie Act to be property, her title to which, whether vested or asa/«;«(!^so?«. contingent, and whether in possession, reversion or remainder, shall accrue after the commencement of this Act, including any wages, earnings, money, and property so gained or acquired by her as aforesaid" (section 5). But it has been held, that this section (5) does not include property to which a woman married before the commencement of the Act has, before its commencement, acquired a title, whether vested or contingent, and whether in reversion or remainder, although it falls into possession after its commencement ; and in which, consequently, the husband had an interest. It is confined to property in which the husband at the commencement of the Act had no interest. {Reid v. Reid, 31 C. D. 402 ; Brett's Lead. Cas. 96 ; cf. re Parsons, Stockley v. Parsons, 45 C. D. 51.) 834. All deposits in any post office or bank, all animities, Deposits in savings and all public stocks or funds, or any other stock or banks, funds transferable in the books of the Bank of ^hich a*^ " England, or of any other bank, and all shares and m^i'iied "^ "^ _ _ woman is stocks of any corporation, company, or society, entitled. which at the commencement of the Act are standing in her name, shall be deemed, unless the contrary be shown, to be the separate property of such married woman ; and the fact that such stocks or funds are standing in the sole name of a married woman shall be sufficient prima facie evidence that she is 414 MARRIED WOMEN. Tit. V. Cap. II. Sect. III. As to stock, &c. to be trausferrpd to a married woman. Investments in joint names of married woman and others. As to .stock, &c. standing in tlie joint names of a married woman and others. Married woman as executrix or trustee. beneficially entitled thereto for her separate use, so as to authorise her to receive or transfer the same, and to receive the dividends, interest, and profits thereof, without the concurrence of her husband. And by section 7, all such annuities, stocks, and shares, as shall after the 1st January, 1883, be allotted to, or otherwise stand in the sole name of any married woman shall be deemed, unless the con- trary be shown, her separate property, in respect of which so far as any liability may be incident thereto her separate estate shall alone be liable. 836. And by section 8, the above provisions shall apply to deposits, annuities, stocks, funds, &c., which, at the commencement of the Act, or at any time afterwards, shall be standing in the name of any married woman, jointly with any persons or person other than her husband. 837 Formerly the concurrence of the husband was necessary to the transfer of stock of the wife unless the stock had been placed in her name as a married woman for her separate use. But now by the Act of 1882, it is not necessary for the husband to join in the transfer of any annuity, deposit, stocks or funds, standing in the sole name of any married woman, or in the joint names of such married woman and any other person or persons not being her husband (section 9). 838. And by the Act of 1882, a married woman who is an executrix or administratrix alone or jointly with any other person or persons, or a trustee alone or jointly of property subject to any trust, may sue or be sued, and may transfer or join in transferring any such annuity, deposit, stock or funds, in that character, without her husband, as if she were a. feme sole (section 18). 839. Tit. y. Cap. 11. Sect. III. M.\REIED WOMEN. 415 And by section 10, the Act makes pi'ovision against fraudulent investments by the wife with her husband's moneys, and provides that such moneys shall remain Fraudulent the husband's property, and if such investments are ^"Xmraey made in fraud of his creditors, they shall be void as of husband, against such creditors, as will also any gift to the wife of property remaining in the order and disposition of the husband. 840. The effect of the Act of 1882 is to abolish, during Husband's the life of the wife, the marital right of the husband ciu-tesy and in all the property of the wife married on or after the ^j^"^"''"*'™' 1st of January, 1883, and in the property acquired on or after that date of a wife married before that date. But the Act does not take away his interest in his wife's property after her death, or alter the devolution of that property. His estate by the curtesy in his wife's real estate survives where the latter is not disposed of by the wife {post, par. 850 b) . And since the Act does not purport to deal with the devolution of property, he is still entitled to possess himself of so much of her personal property acquired on or after the 1st of January, 1883, as she may leave undisposed of, as her administrator, whether separate property under the Act, or as having been limited to her for her separate use; but it will probably be necessary for him to take out administration to complete his title on her death. (Wolst. 264 ; Surman v. Wharton, (1891) 1 Q. B. 491; Stanton v. Lambert, 39 C. D. 626.) 841. Also, since by virtue of the Act of 1882 husband Wife may _ . , be tenant in and wife are no longer one person m Law m cases to common or which that Act applies, a wife may now acquire {°|t°*h',"{;",'^ property as tenant in common or joint tenant with her husband, while formerly husband and wife took by 416 MARRIED WOMEN. Tit. V. entireties. {Re March, 24 C. D. 222 ; Thornley v. Sect'^'iii. Thornley, (1893) 2 Ch. 229.) But in the case of a gift to husband and wife and a third person, it has been held that the husband and wife will still take half only (the half of the wife of that half being her separate property), and the third person the other half. [Re Jupp, 39 C. D. 148 ; Byram v. Tull, 42 C. D. 306.) 841a. Questions The stat. 45 & 46 Vict. c. 75, also enacts : "In any husband and question between husband and wife as to the title to or wife as to possession of property, either party, or any such to be decided corporation, Company, or society as aforesaid in whose in a summary ■, c -, ^ r ■ ■, way. books any stocks, funds, or shares of either party are standing, may apply by summons or otherwise in a summary way to any judge of the High Court, or (at the option of the applicant irrespectively of the value of the property in dispute) to the judge of the County Court of the district, and the judge may make such order with respect to the property, and as to the costs, or may direct such application to stand over, and any inquiry to be made as he shall think fit;" with a proviso giving a right of appeal, and a right of removal into the High Court, in certain cases ; and also a proviso that the corporation, company, or society should, in the matter of such application for the purposes of costs or otherwise, be treated as a stakeholder only (section 17). 842. Married "A married woman may by virtue of the power of Sfe'ct poUcy making contracts hereinbefore contained effect a policy upon her own life or the life of her husband for her separate use ; and the same and all benefit thereof shall enure accordingly " (section 11). She had a similar power under section 10 of the repealed stat. 83 & 34 Vict. c. 93, with the difference that the of insurance. MARRIED WOMEN. 417 object of the policy must have been expressed on the Tit. v. face of it. 843. Seot.' iii. A pohcy of assurance effected by a man on his own insurance of life, for the benefit of his wife, or children, or by any b^^efit o/wife woman on her own life, for the benefit of her husband, "'' children ; or of a wife or cliildren, shall create a trust in favour of the objects for the benefit therein named, and the moneys payable under any husband or such policy shall not, so long as any object of the ^'i'^'*''^'!- trust remains unperformed, form part of the estate of moneys not the insured, or be subject to his or her debts. (Re ^° **"™ ^ ^ ' •' ^ part ol e.state Datii's, (1892) 3 Ch. 63; Cleaver y. Mutual Reserve of insured. Fund, (1892) 1 Q. B. 147.) Provided, that if it shall be proved that the policy was effected and the l^remiams paid with intent to defraud the creditors of the insured, they shall be entitled to receive, out of the moneys payable under the policy, a sum equal to the premiums so paid. The insured may appoint a trustee or trustees of the moneys payable under the policy, and make provision for the investment of the moneys. In default of any such appointment of a trustee, such policy, immediately on its being effected, shall vest in the insured and his or her legal personal representatives, in trust for the purposes aforesaid. If, at any time, it shall be expedient to appoint new trustees, new trustees may be appointed by any Court having jurisdiction under the Trustee Acts. The receipt of a trustee or trustees duly appointed, or, in default of any such appointment, or in default of notice to the insurance office, the receipt of the legal personal representative, shall be a discharge to the office for the sum secured by the policy (section 11). Under the Married Women's Property Act, 1870, s. 10, a trustee of the policy must have been appointed to give a good discharge for the money. {Re Tvriilmll s. ^ i^ 418 MARRIED WOMEN. Tit. V. Cap. II. Sbot. III. Remedies of married woman for protection and security of separate property. (1897) 2 Ch. 415.) In case of a policy effected under this section by a husband for the benefit of his wife and children, if it is not stated to be for the benefit of the wife for life, the wife and children will take as joint tenants. {Re Seyton, 34 Ch. D. 511.) The repealed stat. 33 & 34 Vict. c. 93, s. 10, provided that the policy was to be in trust for the wife for her separate use. 844. By section 12 "every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies, and also (subject, as regards lier husband, to the proviso hereinafter contained) the same remedies and redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property belonged to her as a feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort. In any indictment or other proceeding' under this section, it shall be sufficient to allege such property to be her property; and in any proceeding under this section, a husband or wife shall be competent to give evidence against each other, any statute or rule of law to the contrary notwithstanding : Provided always, that no criminal proceeding shall be taken by any wife against her husband by virtue of this Act while they are living together, as to or concerning any property claimed by her, nor while they are living apart, as to or concerning any act done by the husband while they were living together, concerning property claimed by the wife, unless such property shall have been wrongfully taken by the husband when leaving or deserting, or about to leave or desert, his wife." (Section 12 ; and see section 16, Tit. V. Cap. 11. Sect. III. M.\RRIED WOMEN. 419 and the Married Women's Property Act, 1884.) The wife's right to sue her husband for a tort or criminalty seems confined to the case where such an action is necessary for the security of her separate property. She cannot therefore proceed against her husband for a defamatory hbel. (Rec/. v. Lord Mni/or of London, 16 Q. B. D. 772.) 845. II. As to the wife's power of disposing of her H- Wife's power of separate estate before the Act, she has always been disposing of able to dispose of it in Equity, either by deed or will, estate! ^ provided there was no restraint upon anticipation. With regard, however, to real estate given to her for her separate use, without the intervention of trustees the legal estate vested in the husband, and though the wife could dispose of the equitable or beneficial interest, yet to pass the legal estate it was necessary for the husband to join and for the deed to be acknowledged. {Taijlnr v. Meads, 34 L. J. Ch. 203; Vvkh V. Buhh, L. E. 7 Ch. 64.) 846. Acknowledgment is, however, no longer necessary where the woman was married, or the property was acquired since the Act, except in one single instance, that is, where she is a trustee. {Ri' Harkncss, (1896) 2 Ch. 858 ; cf. Re Brooke, (1898) 1 Ch. 647 ; and see Conv. Act, 1882, s. 7.) 847. With this single exception therefore, a woman married after the Act, or acquiring property after the Act, has the same powers of disposition as if she were a feme sole, without the necessity of any settlement or agreement for a settlement. But the Act does not affect existing settlements or the power to make future settlements. (See supra, par. 830 a.) 848. It may be worth while to point out, that though a married woman can now dispose of her separate B B 2 420 MARRIED WOMEN. Til. V. Gap. II. Sect. III. The Settled Land Act, 1882. Restrictions against alienation or anticipation. property as if she were a feme sole she does not, under the old law, appear to have been deemed a feme sole, and the Act of 1870 does not use the expression. 849. Now by virtue of the Married Women's Property Act, 1882, a married woman can dispose of her separate property as if she were a. feme sole. Further a married woman can now, under the Settled Land Act, 1882, s. 61, exercise the powers of a tenant for life under that Act, even though there is a restraint on anticipation. 850. It was long ago settled that on the death of a woman, entitled absolutely to real property for her separate use, and not having disposed thereof by deed or will, it goes to her heir subject to the husband's estate by curtesy ; and this right of the husband to curtesy in the undisposed-of real estate of his wife, is not affected by the Married Women's Property Act, 1882. (Hope v. Hope, (1892) 2 Ch. 336.) 850 a. A mere prohibition of alienation or anticipation is void against a man, or a woman while she is unmarried. (See 2 Sp. 520.) And it is void when annexed to a gift of real estate in fee or for life to a woman, even though at the time married, if such gift is not for her separate use. (Stogden y. Lee, (1891)1 Q.'B. 661). Secus, if the gift, though not expressed to be for her separate use, is so by virtue of the Married Women's Property Act. (Re Lnmley, (1896) 2 Ch. 690.) But a gift, either of real estate, whether in fee or for life, or of personal estate (whether it be of a sum of money, or of a fund producing income), to a woman for her separate use, even though she be unmarried at the time, may be accompanied by restrictions against alienation or anticipation. (St. § 1382 a, 1384; In re Boim, O'Halloran v. King, 27 Ch. D. 411.) But where there Tit. V. Cap. II. Sect. III. MARRIED WOMEN. 421 is a gift of a capital sum, subject to restraint, the- restraint will be disregarded, and the corpus paid over, if there is a direction to pay the sum to the married woman, or authorising her to give a receipt therefor. (Re Boini, supra ; Rr Grey, 34 C. D. 712 ; Ue Holmes, 67 L. J. 335; Mmt v. Glynes, 41 L. J. Ch. 689.) And if the property is reversionary the restraint will attach in any case to the property while reversionary. (ReBown, supra ; Re Speucer, 30 C. D. 183.) And now any property of a woman married after the Act or acquired after the Act becomes her separate property, although not expressed to be for her separate use. And it is expressly provided that nothing in the Act shall interfere with or render inoperative any restriction against anticipation ; but that no restriction contained in any settlement of a woman's own property made by herself shall have any validity against debts contracted by her before marriage. (See supra, par. 830 a.) 851. It was settled by Tullett v. Armstrong, 1 Beav. 1, Operation of that the restraint on anticipation and the separate clause and use stand or fall together, that they cease during aga'"st'°'' discoverture, and revive on subsequent marriage, anticipation. (Stogden v. Lee, (1891) 1 Q. B. 661.) So, although the woman, while single, or when and as often as she becomes a widow, has the absolute dominion over the property, yet if she do not dispose of, or convert the property so as to put an end to the trust, and she marry again, the separate use clause and the restriction against anticipation will be revived during such and every other subsequent coverture. {Wrif/ht v. Weight, 2 J. & H. 647.) 852. The Court had formerly no poAver to release a Removal of separate estate from a restraint on anticipation or alienation, even where it would manifestly have been 422 MARRIED WOMEN. Tit. V. • for tiie benefit of the married ■woman : as where a Cap. II. . Sbct. III. legacy of considerable amount was given to her on condition that she conveyed away a separate estate of inconsiderable value. (Robinson v. Wheelwright, 21 Beav. 214 ; 6 D. M. & G. 535 ; Smith v. Uicas, 18 C. D. 531.) Nor could she herself bind it by way of admission or estoppel. {Bateman v. Faber, (1898) 1 Ch. 144.) But now, by the Conveyancing Act, 1883 , s. 39, it is provided that " notwithstanding that a married woman is restrained from anticipation, the Court may, if it thinks fit, where it appears to the Court to be for her benefit, by judgment or order, with her consent, bind her interest in any property." Under this section, the Court has not a general power of removing the restraint, but only a power to make binding a particular disposition if it be for her benefit. {Re Warren, 52 L. J. Ch. 928 ; Brett's L. C. 104.) It has been held, however, that good ground must be shown to the Court for the removal of the restraint, and the mere wish of the married woman is insufficient. (Tamplin v. Miller, 30 W. E. 422.) It must also be for the married woman's own benefit, and will not be done in order to benefit her creditors. (Hodges v. Hodges, 20 Ch. D. 749 ; and see Brett's L. C. 104, and cases there cited.) But every case must stand on its own merits, and it is for the Court to decide whether it will exercise its discretion. (Re Pollard, (1896) 2 Ch. 552.) Also by the Married Women's Property Act, 1893, s. 2, eoBts may be ordered to be paid out of property subject to a restraint on anticipation. And under the Trustee Act, 1893, s. 45, such property may be impounded to make good a breach of trust. (See Bolton v. Curre, (1895) 1 Ch. 544.) 853. MARRIED WOMEN. 423 Where the wife bestows her separate property upon Tit. v. 1-1111 Cap.' TI. ner husband, the Court required to give sanction SBct. III. or effect to the gift, will ascertain whether she acts Gifts to the voluntarily, and not under undus marital influence, J^iJ'e'^vife ^^' and for this purpose will examine the wife in Court, and adopt other precautions to ascertain her unbiassed wishes. (St. § 1395 ; see lit; Flamank, 40 C. D. 461.) 854. Where the husband, with the consent of the wife. Husband's , , , . . . . , . receipt of the IS m the habit of receiving the income of her separate income, estate, it is regarded as showing her voluntary choice thus to dispose of it for the benefit of the family ; and separate money of the wife paid to the husbanil or placed to his account by her authority or with her concurrence, cannot be recalled. (St. § 1396 ; 1 Wh. & Tu. 693; Edward v. Chcyne, 13 A. C. 384, 398.) But if there is no evidence of the wife's having acquiesced in the receipt by the husband she will be entitled to be reimbursed. {Dixon v. Dixon, 9 C. D. 587; IVassill v. Leggatt, (1896) 1 Ch. 554.) 855. III. As to the liability of the wife's separate estate III. Liability to her contracts, debts, and charges (except under the estate'^™ ^ Stat. 20 & 21 Vict. c. 85, s. 26, which relates to women Pj^'f^^J^fJ" judicially separated), a woman cannot render herself Women's or her property liable, at Common Law, tor any is82. contract, debt or other charge created by her during the coverture, not even for necessaries. But a married woman having separate estate (except so far as she is restrained from anticipation), being considered in Equity as a feme sole as regards the separate estate, with respect to the capacity of enjoying it, she is likewise considered as a J'eiiic sole with respect to the capacity of charging the estate 424 MARRIED WOMEN. Tit. V. -^v'ith debts or engagements. No personal decree, Sect! III. however, can be made against her : the Court can only affect her separate estate in the hands of her trustees ; she cannot bind her person at all, or her property generally, but only her separate property. (St. § 1379, and note, and 1400, note ; see remarks of Kindersley, V.-C, in Vaughan v. Vanderstegen, 2 Drew. 179 — 184 ; Blatchfordv. Woolley, 2 Dr. & Sm. 204.) Her separate property is liable for all the debts, charges, and incumbrances which she expressly charges, or which, judging from the nature thereof, it may be fairly inferred that she intended, or which she ought to be deemed to have intended, to charge on her separate estate, and for her breaches of trust, except so far as she is prevented by being restrained from anticipation. {Clive V. Careiv, 1 Johns. & H. 199 ; and see Johnson V. Gallagher, 3 D. P. & J. 494 ; In re Leeds Banking Co., L. E. 3 Eq. 781 ; Picard v. Hine, L. K. 5 Ch. Ap. 274; McHenrij v. Davies, L. R. 10 Eq. 88; London Chartered Bank of Australia v. Lempriere, L. E. 4 P. C. 572.) And hence, if she gives a promissory note, or an acceptance, or a bond to pay her own debt, or if she joins in a bond or note with her husband to pay his debts without reference to her separate estate, it shall be intended as an application j^ro tanto of her separate estate ; because the security must have been executed with the intention that it should operate in some way, and it can have no operation except as against her separate estate. And if she employs a lawyer, upon her own responsibility, or an agent to raise money on the credit of her name, her separate estate will be liable from the nature of the engagement. The separate estate is liable to make good all contracts which are MAERIED WOMEN. 425 made by her with express reference to it, or which Tit. v. from the nature of the contract itself must be intended Seot.' hi. to have reference to it ; but she is not Uable even for general contracts which from their nature cannot have reference to it, unless she is divorced or judicially separated from her husband. (See 1 Wh. & Tu. 688 ; McHenry v. Daiies, L. E. 10 Eq. 88 ; Waiiifonl v. Ilayl, L. E. 20 Eq. 321 ; Londo7i Chartered Bank of Australia v. Lempriere, L. E. 4 P. C. 572 ; Daries v. Jenkins, 6 Ch. D. 728.) A woman's separate estate is liable, after her husband's bankruptcy, to debts incurred by her before her marriage. And so if she gives a written guarantee in consideration of money to be advanced to her husband, to a certain amount, that will be charged on her separate estate, with the plaintiff's costs of an action to enforce it. (Moirell v. Cowan, 7 Ch. D. 151 ; Chubb v. Stretch, L. E. 9 Eq. 555.) Unless contrary to the deed of settlement of the company, a married woman may be a shareholder in a joint-stock company in her own right, so as to bind her separate estate. {In re Leeds Banking Co., L. E. 3Eq. 781.) And the savings of property settled to her separate use without power of anticipation, are liable to indemnify a trustee against all calls and liabilities incurred on her behalf, in respect of shares purchased by him at her request, and agreed to be paid for out of her savings. {Butler v. Cumpston, L. E. 7 Eq. 16.) Bat although, as stated above, a married woman could bind her separate estate by her general engagements, yet such engagements only bound such separate estate as she was entitled to at the date of the engagement, and not to property acquired after- wards. {Pike V. Fitzgibbon, 17 C. D. 454.) 856. The preceding paragraph relates to the liability of Under the 426 MARRIED WOMEN. "^'T- 7- a married woman's separate estate at Common Law and Cap. II. ^ Sect. III. in Equity, which has been altered' by the stat. 45 & 46 Women's Vict. c. 75, which enacts by section 1 — " (1) A married 1882^"^'^ ° ' woman shall, in accordance with the provisions of this Act, be capable of acquiring, holding,- and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee." It was held, that this gives a married woman power to dispose by will, only of property of which she is seised or possessed while under coverture {Re Price, 28 C. D. 709) ; but under the Married Women's Property Act, 1893, s. 3, a will made by her during coverture will pass property which she acquires after the coverture has determined, and such will need not be re-executed after such determination. And " (2) A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate property ; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property and not otherwise." Nevertheless her husband remains liable for her torts. (Seroka v. Kattenhurcj, 17 Q. B. D. 177.) It has been decided that although suing without a husband or next friend she cannot be ordered to give security for costs although she have at the time of the action no separate Tit. V. Gap. II. Sect. in. MARRIED WOMEN. 4:27 estate, and there be nothing upon which, if she fails, the defendant can issue available execution. {Jacob v. Iscutc, 30 C. D. 418 ; Re Thompson, 38 C. D. 318) ; but this does not apply to costs of appeal {Whittakcr v. Kershair, 44 C. D. 296), and the section does not enable a married woman to act as next friend or guardian ad litem. {In re Duke of Somerset, 34 C. D. 465.) Also " (3) Every contract entered into by a mai-ried woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown"; and " (4) Every contract entered into by a married woman with respect to and to bind her separate property shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire." It has been decided that the contract referred to in this sub-section is one entered into at the time she has existing separate property. If she commits a breach of such a contract and a judgment is recovered against her for the- breach, the judgment can be enforced against the separate property which she then has. But the sub-section does not enable a married woman who has no existing separate property to bind by contract any separate property which she may possibly there- after acquire. {Palliser v. Giinieij, 19 Q. B. D. 519.) The last two sub-sections (3 and 4) have, however, been repealed by the Act of 1898, which provides that every contract hereafter entered into by a married woman otherwise than as agent, shall bind her separate property, whether she is or is not in fact possessed of any at the time of the contract, and shall bind all separate property which she may at that time or 428 MABRIED WOMEN. Tit. V. Cap. II. Sect. III. Execution of general power. Personal liability of married women. thereafter be entitled thereto, and shall be enforceable against all property which she may thereafter, while discovert, be entitled to, except where she is restrained from anticipating. And " (5) Every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if she were a feme sole." {Re Dagnall, (1896) 2 Q. B. 407 ; Re Hewett, (1895) 1 Q. B. 328 ; Re Handford, (1899) 1 Q. B. 566 ; and see post, par. 904 b.) And by section 24 "the word ' contract ' in this Act shall include the acceptance of any trust, or of the office of executrix or administratrix, and the provisions of this Act as to liabilities of married women shall extend to all liabilities by reason of any breach of trust or devastavit committed by any married woman being a trustee or executrix or administratrix either before or after her marriage, and her husband shall not be subject to such liabilities unless he has acted or intermeddled in the trust or administration. The word ' property' in this Act includes a thing in action." {Re Ayres, 8 P. D. 168.) 857. By section 4, " The execution of a general power by will by a married woman shall have the effect of making the property appointed liable for her debts and other liabilities in the same manner as her separate estate is made liable under this Act." {Re Ann, (1894) 1 Ch. 549 ; Re Hughes, (1898) 1 Ch. 529.) 857 a. With respect to the personal liability of married women for their contracts previously to and since the Act of 1882, the law may be thus stated. At Common Law, as regards a contract made by a woman before marriage, she and her husband were sued together, and, if it was proved that the contract had been made by the wife before marriage, the judgment went Tit. Y. Cai>. II. Sect. III. MARRIED WOMEN. 429 against both husband and wife and the execution followed the judgment, the execution being by a capias (id satisfacieiidnm against both husband and wife. During marriage, a woman could not legally enter into any contract without the authority of her husband, and no action could be maintained upon such a contract against her and her husband ; if she entered into a contract with his authority, it was his contract alone and he alone could be sued upon it. At Common Law, therefore, in respect of a contract made by a "woman during marriage, there was no remedy against her : in other words, there was no legal liability upon her. In Equity, however, a decree could be obtained upon such a contract, but only when the woman had separate property, and the creditor could obtain an order charging her separate estate, but the order did not render her liable to be taken in execution. Therefore, up to the time of the coming into operation of the Act of 1882 (1st January, 1883), a married woman could be taken, in execution upon a judgment recovered after her marriage against her and her husband in respect of a contract made by her before marriage. But neither at Law nor in Equity was she liable to be taken in execution in respect of a contract made by her during marriage. The Act of 1882 does not alter the legal liability of a married woman at all. It does not prevent the bringing of an action against a husband and wife in respect of a contract made by the wife before marriage ; and where at Common Law a married woman was liable to be taken under a rcqiiii-s ad satisfaciendum, in such cases she can now be summoned under section 5 of the Debtors Act, 1869, and be dealt with accordingly. The position of a married woman in respect of a liability to which she Tit. V. Cap. II. Sect. III. 430 MARRIED WOMEN. was not subject at Common Law, but which has been imposed on her solely by the Act of 1882, is this : The damages recovered are not to be payable by the married woman ; they are to be payable out of her separate property. The judgment ought to follow the words of the Act. The damages recoverable are to be recovered against the married woman but are to be payable out of her separate property. {Pelton v. Harrison, (1892) 1 Q. B. 118.) This merely imposes a new liability on a married woman at Law, which will produce the same result as was before the Act produced in Equity. In Equity, the decree was that the sum found due should be charged on the married woman's separate estate, and the same effect is given by the Act to an action at Law as was before the Act produced in Equity by a different process. Still, the liability of a married woman under her contracts is not merely a proprietary, but, for some purposes at least, a personal liability. {Robinson v. Lynes, (1894) 2 Q. B. 577 ; Pelton V. Harrison, nbi supra.) But section 5 of the Debtors Act, 1869, does not apply to a judgment which can be recovered against a married woman by virtue of the Stat. 45 & 46 Vict. c. 75. (Scott v. Morlei/, 20 Q. B. D. 120; Robinson v. Lynes, supra.) 857 b. Wife's ante- With respect to the wife's liability for ante-nuptial andliabilities. cl^bts and contracts, the Act of 1882 enacts by section 13, " A woman after her marriage shall continue to be liable in respect and to the extent of her separate property for all debts contracted, and all contracts entered into or wrongs committed by her before her marriagej including any sums for which she may be liable as a contributory, either before or after she has been placed on the list of contributories, under and by virtue of the Acts relating to joint stock ^rARRIED WOMEN. 431 companies ; and she may be sued for any such debt Tit. v. and for any liability in damages or otherwise (Smith v. Sect. Ili. Lucas, 18 C. D. 531, 543), under any such contract, or in respect of any such wrong ; and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable out of her separate property ; and, as between her and her husband, unless there be any contract between them to the contrary, her separate property shall be deemed to be primarily liable for all such debts, contracts, or wrongs, and for all damages or costs recovered in respect thereof : Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act for any such debt, contract, or wrong as aforesaid, except as to any separate property to which she may become entitled " through the Act. (See Re Hedgely and Jay v. Robinson, ante, par. 830 a ; and Reck v. Pierce, 23 Q. B. D. 316.) 858. Under the repealed Act of 1870, s. 12, a husband Husband's liability under was exempted from all liability for the debts of his Married wife contracted before marriage, and the wife was Property Act, made exclusively liable therefor to the extent of her ^^''"■ separate estate. And this extended to property settled to the separate use of a married woman without power of anticipation. (Sanger v. Sanger, L. E. 11 Eq. .470.) 859. ' This enactment was repealed, so far as respects marriages after the 30th July, 1874, and fresh enact- ments substituted, by the Married Women's Property Act, 1874. 860. The latter Act enacts " So much of the Married Women's Property Act, 1870, as enacts that a husband 432 MARRIED WOMEN. Tit. y. shall not be liable for the debts of his wife contracted Cap. II. . . , , Sect. III. before marriage is repealed so far as respects marriages which shall take place after the passing of this Act, and a husband and wife married after the passing of this Act, may be jointly sued for any such debt." (Section 1.) 861. The husband, however, in such action and in any action brought for damages sustained by reason of any tort committed by the wife before marriage or by reason of the breach of any contract made by the wife before marriage, shall only be liable to the extent of the assets specified in the 5th section of that Act. 862. The Married The Act of 1874 has now been repealed, except as to Women s _ .... Property Act, acts done and rights or liabilities accrued while it was 18S2 in force, by section 22 (see supra, par. 823) of the Act of 1882, which enacts by section 14 — "A husband shall be liable for the debts of his wife contracted, and for all contracts entered into and wrongs committed by her, before marriage, including any liabilities to which she may be so subject under the Acts relating to joint- stock companies as aforesaid, to the extent of all property whatsoever belonging to his wife which he shall have acquired or become entitled to from or through his wife, after deducting therefrom any payments made by him, and any sums for which judgment may have been bond fide recovered against him in any proceeding at Law, in respect of any such debts, contracts, or wrongs for or in respect of which his wife was liable before her marriage as aforesaid ; but he shall not be liable for the same any further or otherwise " ; and any Court may direct any inquiry or proceedings for the purpose of ascertaining the value of such property : Provided that nothing in MABRIED WOMEN. 438 the Act shall operate to increase or diminish the Trr. V. liability of any husband married before the Act for Sect] iii or in respect of any such debt or liability of his wife. (As to the husband's liability apart from the Act, see Beck V. Pierce, 23 Q. B. D. 316.) And by section 15 a husband and wife may be jointly sued in respect of any such debt or other liability ; and if in any action, it is not found that the husband is liable in respect of any property of his wife so acquired by him or to which he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the action against the wife if jointly sued with him ; and in any such action against husband and wife jointly, if it appears that the husband is liable, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband personally and against the wife as to her separate property ; and as to the residue, if any, the judgment shall be a separate judgment against the wife as to her separate property only. 866. By section 20 of the Act of 1882, a married woman Married having separate estate is liable to the guardians liability to of the poor for the maintenance of her husband. 867. Jifaiiitenance And by section 21 she is similarly liable (but con- »' imsband. currently with her husband, to maintain her children and grandchildren. 868. By section 23, "For the purposes of this Act the legal Legal , i J.- i! • 1 1 11 repieseiitativi personal representative or any married woman shall ornmnied in respect of her separate estate have the same rights ^^o""'"- and liabilities and be subject to the same jurisdiction as she would be if she were living. (Surman v. Wharton, (1891) 1 Q. B. 491 ; Re Parkin, (1892) 3 Ch. 510.) 868 a. S. F F 434 MAEBIED WOMEN. Tit. V. Cap. II. Sect. IV. Power of trustees of the wife's personalty not settled to her separate use. I. Equity of the wife, when defen- dant against her husband. Section IV. The Wife's Equity to a Settlement or Maintenance out of her own Property (as). Trustees of a married woman's personalty not settled to her separate use, might pay it over to her husband before Chancery proceedings were taken in respect of it. But, on the other hand, they might refuse to pay it over to him, even at his wife's request unless he made a settlement, when the Court would require him to make one. And this appears to have been the origin of a wife's equity to a settlement. (Lewin, 10th ed., 904.) 869. "With regard to the cases where the Court required a settlement, the following propositions may be laid down, subject now of course to the Married Women's Property Acts (supra, Sect. III.). 870. I. If the wife has real property, or the absolute interest in personal property (with the exception of a legal term of years, iJeroKv.iTerow, (1887) W. N.158), which cannot be reduced into the possession of the husband without a suit in Equity (as where the legal property is vested in trustees), and the husband applies to a Court of Equity for the purpose of reducing the property into his possession, the Court, acting upon the maxim that he who seeks equity must do equity, will not give it up to him, without requiring him to make a suitable settlement on the wife, of a part of the property, or of some other property, for her due maintenance in case of her surviving him (St. § 1404, 1405, 1410, 1418; (a) For a further exposition of the old law on this subject, see Lady Mibamk v. Moniolieu, Sc, 1 Wh. & Tu. 621 et seq. MARRIED WOMEN. 435 Duncomhe v. Greenacre, 28 Beav. 472 : 2 D. P. & J. Tit. V. 509 ; Life Association, of Scotland v. Siddal, 3 Sect. IV. D. F. & J. 271) with a provision for the issue of the marriage (St. § 1406), even though the property is under £200 {In re Cutler, 14 Beav. 220 ; In re Kincaid's Trusts, 1 Drew. 326), unless the wife and children are already amply provided for under a prior settlement (St. § 1416 ; Spicer v. Spicer, 24 Beav. 865 ; Giacometti v. Prodgers, L. E. 8 Ch. 338) ; or the right to the settlement is waived or lost. (St. § 1418, 1419 ; infra, par. 885.) In the absence of a contract, to that effect, an inadequate settlement, even before marriage, of a part of her property, does not deprive her of her right to a settlement out of the residue of her property, though vested in her at the time of the marriage. {Barrow v. Barrow, 18 Beav. 529.) 871. This equity of the wife exists in the case of a charge on land for her benefit, even though there be a power of entry and receipt of the rents and profits. For, though there is this remedy at Law for raising the money, the remedy in Equity is more convenient. {Duncomhe v. Greenacre, 28 Beav. 472 ; 2 D. F. & J. 509.) 872. Before the alterations by the Judicature Act, there Injunction , • 1 • 1 i ii i j^ • against pro- were instances m which, tor the purpose or enforcing ceedlngsin the wife's equity to a settlement, bills in Equity were ''*'^^'' Comts. entertained to restrain the husband from having recourse to his remedy in a Court of Common Law to reduce his wife's choses in action into possession. (St. § 1403 ; 2 Sp. 429.) 873. If the husband does not choose to make a settle- Refusal of ment or provision for the wife, the Court will not to make a ordinarily take from him the income and interest of settlement. his wife's fortune, so long as he is willing to live with F F 2 436 MAREIED WOMEN. Tit. V. Cap. II. Sect. IV. Iniiebteduess of wife on marriage. II. Equity of the wife, when de- fendant, as against her husband's trustees or vendees. "When an immediate provision is required. and maintain her, and there is no reason for their living apart. Under such circumstances, the Court secures the fund, so as to give her the chance of taking it by survivorship, allowing the husband, under its order, to receive the income and interest, or a part of it at least. (St. § 1415.) 874. Where a woman is indebted at the time of her marriage, she has no equity to a settlement until her debts have been provided for. {Barnard v. Ford, L. E. 4 Ch. 247.) 875. II. The trustees in bankruptcy or insolvency of a husband, and also his trustees for payment of debts due to his creditors generally, are bound to make a settlement on the wife out of her immediate choses in action and immediate absolute equitable interests in chattels personal assigned to them, in the same way, and under the same circumstances, as he would be bound to make one ; for it is a general principle that such trustees take the property subject to all the equities which affect the bankirupt or insolvent or general assignor. (Lewin, 10th ed. 907 ; Re Briant, Poulter V. Shackel, 39 C. D. 471 ; 'St. § 1411.) And even a specific assignee or purchaser from the husband, for valuable consideration, of her choses in action and equitable interests, is bound to make such a settle- ment. And no assignment of them will convey any right to the assignee or purchaser against the wife, if she survives her husband, and they are not reduced into possession in his lifetime. (St. § 1412 ; Scott v. Spashett, 3 Mac. & G. 604.) 876. There is this distinction, however, between the case of the husband himself and his specific assignees for valuable consideration, on the one hand, and the case of his trustees in bankruptcy or insolvency, or trustees MARKIED WOMEN. 437 for payment of debts generally, on the other hand : — Tit. v. in the case of the former, it is only necessary that the Sect! IV. provision for the wife should commence from the death of her husband; but in the case of the latter, it is necessary that the provision should commence imme- diately, because the general assignment of his property renders him incapable for a time, and perhaps for ever, of affording her a suitable support. (St. § 1421.) 877. If the trustees in bankruptcy, or other general Refusal of assignees claiming title under the husband, refuse to to nmkfr^ make a settlement on the wife, the like doctrine applies settlement. to them as to the husband himself where he refuses to make a settlement. (St. § 1415 ; supra, par. 874.) 878. The husband could sell the life interest of his wife in Life interest personalty, and she had no equity to a settlement as i^j^nalty. against the purchaser. {Re Duffy's Trust, 28 Beav. 386 ; post, par. 891.) 879. A wife has no equity to a settlement out of arrears No equity of past income of real or leasehold property, whether i'^come^'"* against her husband or his particular assignee ; for until the claim is established, the right of the husband prevails. (In re Carr's Trusts, L. E. 12 Eq. 609.) 880. If the husband assigns his wife's reversionary t7ioses Eeversionary -, , 1 . • I 1 1 • J J • choses in III action and other reversionary equitable interests in action, and personal chattels, such assignment will not exclude ''"^'^rsionary her right of survivorship, although she join in the interests in . personal assignment ; because the assignment, from the nature chattels. of the thing, cannot amount to a reduction into possession of such reversionary interest. (St. § 1413; 2 Sp. 476.) 881. III. Whenever the wife, as defendant, would be ni. Equity of the wife, entitled to an equity for a settlement, out oi her when plain- tiff, to a 438 MARRIED WOMEN. Tit. V. Cap. II. Sect. IV. settlement on her husband's death, bank- ruptcy, or insolvency. IV. Amount to be settled. y. Substitute lor a settle- ment, where limd is small. equitable interest, against her husband, or against his assignees, she may assert it, as plaintiff or petitioner. (St. § 1414 ; Elibank v. Montolieu, 1 Wh. & Tu. 621.) 882. IV. The Court has a full discretion as to the amount to be settled, according to the circumstances of each case. (Re Svggitt, L. E. 3 Ch. 215.) In the absence, however, of special circumstances, the general rule or the common course has been to settle about one-half on the wife and her children (Lewin, 10th ed. 907), with remainder, in default of issue of the present or any future husband, to the husband, whether he survives the wife or not, or to his assignees. {Spirett V. Willoivs, L. E. 1 Ch. 520; In re Suggitt's Trusts, L. E. 3 Ch. 215 ; Croxton v. May, L. E. 9 Eq. 404 ; Reid V. Reid, 33 Ch. D. 220.) But where particular reasons have occurred, the Court has frequently settled the whole : as in Roberts v. Coojxr, (1891) 2 Ch. 335, where it was small and barely sufficient for mainten- ance : or as in Taunton v. Morris, 11 C. D. 779, and in Marshall v. Fotvler, 16 Beav. 249, where the husband was insolvent and dependent on charity ; In re Kincaid's Trusts, 1 Drew. 326 ; and Ward v. Yates, 1 D. & S. 80 ; where the husband was a bankrupt, and the fund was under £200 ; and in Dunkley v. Dunkley, 2 D. M. & G. 390; and Reid v. Reid, 33 C. D. 220, where the husband had deserted or behaved cruelly to his wife and did not maintain her. 883. V. To avoid the expense of a settlement, where the fund belonging to the wife is small, it will sometimes be ordered to be brought into Court, or if already in Court, it will be retained there, and the dividends directed to be paid to the wife for her life. (Bagshaw V. Winter, 5 De G. & Sm. 466 ; Watsmi v. Marshall, MAERIED WOMEN. 439 17 Beav. 363 ; Walker v. Drury, 17 Beav. Tit. v. 482.) 884. ■ Se^t: I v. VI. The Court will not insist on a settlement on the vi. Wife's wife, if at any time before a settlement under the ^^^^^^J^ decree is completed, or at least before proposals are made under the decree, the wife (by her consent given in open Court or under a commission) agrees that the absolute fund shall be wholly and absolutely paid over to the husband ; except in the case of an infant or of a female ward of the Court, who has married without its authority. (St. § 1418; Lewin, 10th ed. 906 ; Shipway v. Ball, 16 C. D. 376 ; Re Roberts, 38 L. J. Ch. 708 ; Tennent v. Welch, 37 C. D. 622.) But until a transfer to the husband has actually been made, the wife can revoke her consent. (Penfold v. Mould, L. R. 4 Eq. 562.) 885. The equity of the wife to a settlement may be lost or lost, or or suspended by her own misconduct. Thus, if the wife (not being a ward of Court, married without its consent) has been living in adultery, apart from the husband, a Court of Equity will not direct a settle- ment, on her own application, as it otherwise would ; because, by such misconduct, she has rendered herself unworthy of the protection and favour of the Court. But, on the other hand, in such a case, a Court of Equity will not decree such equitable property to be paid over to the husband on his application ; for when the wife is living apart from him, he is at no charge for her maintenance ; and it is only in respect to his duty to maintain her that the Law gives him her fortune. In the case, however, of a female ward of Court, married without its consent, the Court will insist on a settlement, as a punishment to the husband for contempt of its authority. (St. § 1419, and note, 440 MAKRIED WOMEN. Tit. V. and 1419 a. And where both husband and wife are Sect! IV. guilty, a settlement may be claimed. {Greedy v. Lavender, 13 Beav. 62.) 886. A woman may by her fraud, even though per- petrated by compulsion of her husband, preclude her- self from asserting as against a purchaser that equity to a settlement which she would otherwise possess. {In re Lush's Trusts, L. E. 4 Ch. 591 ; cf. Bateman v. Faher, (1898) 1 Ch. 144.) 887. Where an executor is indebted to the testator's estate, and unable to pay, he is not entitled to any part of the assets in right of his wife, and consequently no equity to a settlement of any part of the assets can arise to the wife. {Knight v. Knight, L. E. 18 Eq. 487 ; but see Re Briant, 39 C. D. 471.) 888. "WaiTer of 'We have seen that the Court, in making a settlement proyision for . the children, on the Wife, properly attends to the interests of the children. But it must be observed that the Court attends to their interest only upon the supposition that, in so doing, it is carrying into effect her own desire to provide for her offspring. They have no independent equity of their own; for although the husband is under a moral obligation to provide for them, yet he is not bound to provide for them in any particular way or out of any particular fund. They have only a claim to the consideration of the Court, constituting part of the equity of their mother, and capable of being either expressly given up by her before the amount is ascertained, or tacitly waived by her dying without having asserted it. (See St. § 1417.) And it has been held that if she dies before a decree, even without waiving the right to a settlement, the children cannot assert any claim. {Wallace v. Auldjo, 2 Dr. & Sm. 216 ; 1 D. J. & S. 643.) But if a decree MAERIED WOMEN. 441 for a settlement has been made they have an equity to Tii"- '^• enforce it, unless it has been waived by the wife. seot. IV. .{Pembertoit v. Maniott, 47 L. T. 332.) 889. VII. By the law of Scotland, a married woman has ^^\\ ^'', equity where no equity to a settlement ; and if husband and wife are parties domiciled in Scotland, she has no equity to a settle- Scotland. ment (M'Connick v. Garnctt, 5 D. M. & G. 278) even out of the produce of real estate in England directed to be sold. {Hitchcock v. Clendincn, 12 Beav. 534.) 890. VIII. Although Courts of Equity do not claim any VIII. Equity "^ 1 J' J of the wife to general jurisdiction to decree a suitable maintenance maintenance for the wife, out of her husband's property, where he husband's has deserted or ill-treated her, yet, whenever the wife misconduct, ' ■> ' or msolvency. has any equitable property, even though it be only for her life, within the reach of the jurisdiction of Courts of Equity, and the husband has deserted or ill-treated or refused to maintain her, they will decree a suitable and immediate maintainance out of such equitable property, or, if it has passed into the possession of a bona fide purchaser without notice, out of other property of the husband ; because the obligation of maintaining the wife is the ground on which the Law gives the property to the husband. (St. § 1408, p. 1408, note, 1422—1424, 1426 ; Barrow v. Barrow, 5 D. M. & G. 782.) And where the wife has an equit- able interest for life only, and the husband is a bankrupt or insolvent, and therefore is, as a general rule, deprived, for a time at least, of the means of duly maintaining her, she is entitled to an allowance for maintenance out of such life interest, as against the trustees. (St. § 1408 n, 1412; Taunton v. Morris, 11 C. D. 779.) But a married woman, even though her husband does not maintain her, is not entitled, as 442 MARRIED WOMEN. Tit. V. against a particular assignee for valuable consideration Sect. IV. of the husband, to an allowance for maintenance out of the income of real or personal estate to which she is entitled in Equity, for her life only ; because, if she were, purchasers would be involved in inquiries respecting the relations between husband and wife, and their other property and sources of maintenance ; and the life interests of married women would become incapable of being dealt with, whatever might be the exigencies of the case. {Tidd v. Lister, 10 Hare, 151, 153 ; 3 D. M. & G. 857 ; Re Dufy's Trwt, 28 Beav. 386.) 891. Section V. Some Miscellaneous Points. Sect. V. As a deed of separation cannot dissolve the marriage, j)gg,js of it does not relieve the wife from the ordinary con- separation. sequences of coverture. (St. § 1428.) 892. It was at one time supposed that the wife could not enter into a valid and binding contract with her husband for separation, as being against public policy so that the intervention of a trustee to contract on the part of the wife was necessary to the validity of a separation deed. But it is now settled that separation deeds jj^r se are not against public policy, and for such a deed no trustee is necessary, though for the husband's protection very desirable. {Besant v. Wood, 12 Ch. D. 622 ; Hart v. Hart, 18 C. D. 670 ; McGregm- v. McGregor, 21 Q. B. D. 424.) 893. An agreement for separation is neither illegal or immoral, at least where the separation is imminent MARRIED WOMEN. 44S and not merely prospective or remote ; and such an Tit. y. agreement will therefore when legal be specifically Sect. v. enforced. (Gibbs v. Harding, L. R. 5 Ch. 336 ; Hart v. Hart, 18 C. D. 670 ; Sweet v. Sweet, (1895) 1 Q. B. 12.) And is binding even when it is in the nature of a compromise arrived at in divorce proceedings. (Hart V. Hart, supra; Cahill v. Cuhill, 8 A. C. 420.) A separation deed will be enforced, so long as the separa- tion lasts ; but it will not be enforced for a longer period, even as to past separation. (St. § 1428 ; Wilson V. Wilson, 1 Wh. & Tu. 577.) 894. But a separation deed which has for its primary object the living apart of the parties to it, may also effect a permanent settlement of property which will remain valid, and the covenants of which will be enforced notwithstanding a return to cohabitation of the parties. (Negus v. Forster, 46 L. T. 675.) 895. The Court will interfere to prevent the doing of any personal acts, which, if done, would be in violation of an agreement respecting property entered into on the separation. And where, by articles of separation, it is agreed that the husband shall permit his wife to live separate, and as if unmarried, without any molesta- tion, interference, or annoyance whatever, and that a proper deed shall be executed for effectuating the object of the articles, and containing all such covenants, &c., as shall be deemed expedient for that purpose, this justifies the insertion in the deed of a covenant that the husband will not compel, or endeavour to compel, the wife, by legal proceedings or otherwise, to cohabit or live with him. And such a covenant may be enforced by action or injunction. And similar remarks apply to the opposite case of an agreement by the wife to permit the husband to live 444 MARRIED WOMEN. Tit. V. Cap. II. Sect. V. Non-dis- closure of ante-nuptial incontinence. Benefits under settle- ment not forfeited by adultery. Fraud. separate. (1 Wh. & Tu. 577 et seq ; Wilson v. Wilson, 1 H. L. C. 638 ; 5 H. L. C. 40, 51, 52, 60—63, 71, 72; Besant v. Wood, 12 C. D. 605 ; Cahill v. Cahill, 8 A. C. 420.) 896. Eeconciliation puts an end to a deed of separation, as it must not be permitted to parties to make agree- ments for themselves to hold good wl^enever they choose to live separate (2 Sp., 532; Re Ahdy, (1895) 1 Ch. 455) ; with the exception of such provisions as are intended to operate as a permanent settlement. (See supra, par. 895.) 897. If a wife induces her husband to execute a deed of separation, in contemplation by her of her renewal of an illicit intercourse, the deed is void. {Evans v. Carringtori, 2 D. F. & J. 481 ; cf. Sweet v. Siveet, (1895) 1 Q. B. 12.) 898. Non-disclosure of ante-nuptial incontinence on the part of a wife is not such a fraud upon the husband as to entitle him to set aside a settlement made upon the marriage. {Evans v. Carnngton, 2 D. P. & J. 481). 899. The Court has no jurisdiction to deprive an adul- teress, whose marriage has been dissolved, of any benefit under the settlement made upon the marriage. {Evans v. Carrington, 2 D. F. & J. 481 ; Fitzgerald v. Chapman, 1 C. D. 563.) 900. A woman, although married, cannot, by fraud, obtain for herself or those claiming under her any benefit or interest, to the detriment of any other person. (V.-C. Wood, in Nicholl v. Jones, L. E. 3 Eq. 709.) 901. And if husband and wife mortgage the wife's real estate, and represent to the mortgagee that there is no settlement, and the mortgagee has no notice th^it MAERIED WOMEN. 445 there is a settlement, the wife is bound by the repre- Tit. v. sentation, and the mortgagee is protected. {Sharpe v. sect. y. Foy, L. E. 4 Ch. 35.) 902. The Married Women's Property Act, 1882, enacts. Act of wife by section 16, that " a wife doing any act with respect to criminal any property of her husband which, if done by the pi^o'='^«.) In any of the stocks, funds, or securities for the time being authorised for the investment of cash under the control or subject to the order of the High Court : and may also from time to time vary any such investment. 2. — (!■) A trustee may under the powers of this Act invest in any of the securities mentioned or referred to in section one of this Act, notwithstanding that the same maj' be redeemable, and that the price exceeds the redemption value. (2.) Provided that a trustee may not under the powers of this Act purchase at a price exceeding its redemption value any stock mentioned or referred to in sub-sections ((?.), (i.), (k.), {!.), and (m.) of section one, which is liable to be redeemed within fifteen years of the date of purchase at par or at some other fixed rate, or purchase any such stock as is mentioned or referred to in the sub-sections aforesaid, which is liable to be redeemed at par or at some other fixed rate, at a price exceeding fifteen per centum above par or such other fixed rate. (3.) A trustee may retain until redemption any redeemable stock, fund, or security which may have been purchased in accordance with the powers of this Act. 3. Every power conferred by the preceding sections shall be exercised according to the discretion of the trustee, but subject to any consent required by the instrument, if any, creating the trust with respect to the investment of the trust funds. 4. The preceding sections shall apply as well to trusts created before as to trusts created after the passing of this Act, and the powers thereby conferred shall be in addition to the powers conferred by the instrument, if any, creating the trust. 5_ n .) A trustee having power to invest in real securities, unless expressly forbidden by the instrument creating the trust, may invest and shall be deemed to have always had power to invest — (a) on mortgage of property held for an unexpired term of not less than two hundred years, and not subject to a 56 & 57 VioT. 0. 53. Purchase at a premium of redeemable stocks. Discretion of trustees. Application of preceding sections. Enlargement of express powers of investment. S. G G 450 APPENDIX. 56 & 57 Vict. c. 53, 27 & 28 Vict, c. 114. & 39 Vict. & 44 Vict. c. 8. 28 & 29 Vict, t. 78. Power to invest, not- withstanding drainage charges. 10 & 11 Vict. c. 32. Trustees not to convert in- scribed stock into certifi- cates to bearer. 26 & 27 Vict. c. 73. 33 & 34 Vict, c. 71. 38 & 39 Vict. 0. 83. 40 & 41 Vict, c. 59. reservation of rent greater than a shilling a year, or to any right of redemption or to any condition for re-entry, except for non-payment of rent ; and (6) on any charge, or upon mortgage of any charge, made under the Improvement of Land Act, 1864. (2.) A trustee having power to invest in the mortgages or bonds of any railway company or of any other description of company may,- unless the contrary is expressed in the instru- ment authorising the investment, invest in the debenture stock of a railway company or such other company as aforesaid. (3.) A trustee having power to invest money in the deben- tures or debenture stock of any railway or other company may, unless the contrary is expressed in tile instrument authorising the investment, invest in any nominal debentures or nominal debenture stock issued under the Local Loans Act, 1875. (4.) A trustee having power to invest money in securities in the Isle of Man, or in securities of the government of a colony, may, unless the contrary is expressed in the instrument autho- rising the investment, invest in any securities of the Government of the Isle of Man, under the Isle of Man Loans Act, 1880. (5.) A trustee having a general power to invest trust moneys in or upon the security of shares, stock, mortgages, bonds, or debentures of companies incorporated by or acting under the authority of an Act of Parliament, may invest in, or upon the security of, mortgage debentures duly issued under and in accordance with the provisions of the Mortgage Debenture Act, 1865. 6. A trustee having power to invest in the purchase of land or on mortgage of land may invest in the purchase, or on mortgage of any land, notwithstanding the same is charged with a rent under the powers of the Pubhc Money Drainage Acts, 1846 to 1856, or the Landed Property Improvement (Ireland) Act, 1847, or by an absolute order made under the Improvement of Land Act, 1864, unless the terms of the trust expressly provide that the land to be purchased or taken in mortgage shall not be subject to any such prior charge. 7. — (1.) A trustee, unless authorised by the terms of his trust, shall not apply for or hold any certificate to bearer issued under the authority of any of the following Acts, that is to say : (a.) The India Stock Certificate Act, 1863 ; (6.) The National Debt Act, 1870 ; (c.) The Local Loans Act, 1875 ; (d.) The Colonial Stock Act, 1877. TRUSTEE ACT, 1893. 451 (2.) Nothing in this section shall impose on the Bank of 56 & 57 Vict. ■ England or of Ireland, or on any person authorised to issue any ^- ^^■ such certificates, any obUgation to inquire whether a, person applying for such a certificate is or is not a trustee, or subject them to any hability in the event of their granting any such cei'tificate to a trustee, nor invalidate any such certificate if granted. 8. — (1.) A trustee lending money on the security of any Loans and property on which he can lawfully lend shall not be chargeable investments \iV tiTllSlj66S with breach of trust by reason only of the proportion borne by ^^^ chargeable the amount of the loan to the value of the property at the time as breaches when the loan was made, provided that it appears to the court °' trust. that in making the loan the trustee was acting upon a report as to the value of the property made by a person whom he reasonably beheved to be an able practical surveyor or valuer instructed and employed independently of any owner of the property, whether such surveyor or valuer carried on business in the locahty where the property is situate or elsewhere, and that the amount of the loan does not exceed two equal third parts of the value of the property as stated in the report, and that the loan was made under the advice of the surveyor or valuer expressed in the report. (2.) A trustee lending money on the security of any leasehold property shall not be chargeable with breach of trust only upon the ground that in making such loan he dispensed either wholly or partly with the production or investigation of the lessor's title. (3.) A trustee shall not be chargeable with breach of trust only upon the ground that in effecting the purchase of or in lending money upon the security of any property he has accepted a shorter title than the title which a purchaser is, in the absence of a. special contract, entitled to require, if in the opinion of the court the title accepted be such as a person acting with prudence and caution would have accepted. (4.) This section applies to transfers of existing securities as well as to new securities, and to investments made as well before as after the commencement of this Act, except where an action or other proceeding was pending with reference thereto on the twenty-fourth day of December one thousand eight hundred and eighty-eight. g_ (1.) Where a trustee improperly advances trust money Liabihty for on a mortgage security which would at the time of the invest- ^^l^J /. ment be a proper investment in all respects for a smaller sum improper than is actually advanced thereon the security shall be deemed investments. GG 2 452 APPENDIX. 66 & 57 ViOT. c. 63. an authorised investment for the smaller smn, and the trustee shall only be liable to make good the sum advanced in excess thereof with interest. (2.) This section applies to investments made as well before as after the commencement of this Act except where an action or other proceeding was pending with reference thereto on the twenty-fourth day of December one thousand eight hundred and eighty-eight. Power of appointing new trustees. PABT II. Various Powees and Duties of Trustees. Appointment of New Trustees. 10. — (1.) Where a trustee, either original or substituted, and whether appointed by a court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for the purpose of appointing new trustees By the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or con- tinuing trustee, may by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing, or being unfit or being incapable, as aforesaid. (2.) On the appointment of a new trustee for the whole or any part of trust property — {a) the number of trustees may be increased ; and (6) a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part or parts of the trust property, notwithstanding that no new trustees or trustee are or is to be appointed for other parts of the trust property, and any existing trustee may be appointed or remain one of such separate set of trustees ; or, if only one trustee was originally appointed, then one separate trustee may be so appointed for the first-mentioned part ; and TRUSTEE ACT, 1893. 453 (c) it shall not be obligatory to appoint more than one new 56 & 57 Vior. trustee where only one trustee was originally appointed, ^'- ^^- or to fill up the origmal number of trustees where more than two trustees were originally appointed ; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust ; and (d) any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done. (3.) Every new trustee so appointed, as well before as after all the trust property becomes by law, or by assurance, or otherwise, \ested m him, shall have the same powers, authori- ties, and discretions, and may in all respects act, as if he had been origmaUv appointed a, trustee by the instrument, if any, creating the trust. (4.) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (5.) This section apphes only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained. (6.) This section apphes to trusts created either before or after the commencement of this Act. 11. — (1.) Where there are more than two trustees, if one of Retirement them by deed declares that he is desirous of being discharged "' trustee. from the trust, and if his co-trustees and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the co-trustees alone of the trust property, then the trustee desirous of being dihcharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom under this Act, without any new trustee being appointed in his place. (2.) Any assurance or thing requisite for ^estingthe trust pro- perty in the continuing trustees alone shall be executed or done. (3.) This section apphes only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained. 454 APPENDIX. ,56 & 57 Vict. c. 53. Testing of trust property in new or continuing trustees. Power of trustee for sale to sell by auction, &c. (4.) This section applies to trusts created either before or after the commencement of this Act, 12. — (1.) Where a deed by. which a new trustee is appointed to perform any trust contains a declaration by the appointor to the effect that any estate or interest in any land subject to the trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration shaU, without any conveyance or assignment, operate to vest in those persons, as joint tenants, and for the purposes of the trust, that estate, interest, or right. (2.) Where a deed by which a retiring trustee is discharged under this Act contains such a declaration as is in this section mentioned by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, that declaration shall, vsdthout any conveyance or assignment, operate to vest in the continuing trustees alone, as joint tenants, and for the purposes of the trust, the estate, interest, or right to which the declaration relates. (3.) This section does not extend to any legal estate or interest in copyhold or customary land, or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share, stock, annuity, or property as is only trans- ferable in books kept by a company or other body, or in manner directed by or under Act of Parliament. (4.) For purposes of registration of the deed in any registry, the person or persons making the declaration shall be deemed the conveying party or parties, and the conveyance shall be deemed to be made by him or them under a power conferred by this Act. (5.) This section apphes only to deeds executed after the thirty-first of December one thousand eight hundred and eighty-one. Purchase and Sale. 13. — (1.) Where a trust for sale or a power of sale of property is vested in a trustee, he may sell or concur with any other person in selling all or any part of the property, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to any such conditions respecting title or evidence of title or other matter as the trustee thinks fit, with power to vary any contract for sale, and TRUSTEE ACT, 1898. 465 to buy in at any auction, or to rescind any contract for sale and to re-sell, without being answerable for any loss. (2.) This section applies only if and as far as a contrary intention is not expressed in the instrument creating the trust or power, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (3.) This section apphes only to h, trust or power created by an instrument coming into operation after the thirty-first of December one thousand eight hundred and eighty-one. 14. — (1.) No sale made by a trustee shall be impeached by any beneficiary upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, unless it also appears that the consideration for the sale was thereby rendered inadequate. (2.) No sale made by a trustee shall, after the execution of the conveyance, be impeached as against the purchaser upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, unless appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made. (3.) No purchaser upon any sale made by a trustee, shall be at liberty to make any objection against the title upon the ground aforesaid. (4.) This section applies only to sales made after the twenty- fourth day of December one thousand eight hundred and eighty-eight. 15. A trustee who is either a vendor or a purchaser may sell or buy without excluding the apphcation of section two of the Vendor and Purchaser Act, 1874, 16. "When any freehold or copyhold hereditament is vested in a maxried woman as a bare trustee she may convey or surrender it as if she were a feme sole. Various Powers and Liabilities. 17. — (1.) A trustee may appoint a sohcitor to be his agent to receive and give a discharge for any money or valuable con- sideration or property receivable by the trustee under the trust, by permitting the sohcitor to have the custody of, and to pro- duce, a deed containing any such receipt as is referred to in section fifty-six of the Conveyancing and Law of Property Act, 1881 ; and a trustee shall not be chargeable with breach of trust by reason only of his having made or concurred in making any such appointment ; and the producing of any such deed by the 56 & 57 VioT. c. 53. Power to .sell subject to depreciatory couditions. Power to sell under 37 & 38 Vict. u. 78. Married woman as bare trustee may convey. Power to authorise receipt of money by banker or solicitor. ii & 45 Vict. c. 41. ,456 APPENDIX. 56 & 57 Vict. 0. 53. Power to insure building. Power of trustees of solicitor shall have the same validity and effect under the said section as if the person appointing the solicitor had not been a trustee. (2.) A trustee may appoint a banker or solicitor to be his agent to receive and give a discharge for any money payable to the trustee under or by virtue of a polioy of assurance, by per- mitting the banker or solicitor to have the custody of and to produce the policy of assurance with a receipt signed by the trustee, and a trustee shall not be chargeable with a breach of trust by reason only of his having made or concurred in making any such appointment. (.S.) Nothing in this section shall exempt a trustee from any liability which he would have incurred if this Act had not been passed, in case he permits any such money, valuable considera- tion, or property to remain in the hands or under the control of the banker or solicitor for a period longer than is reasonably necessary to enable the banker or solicitor (as the case may be) to pay or transfer the same to the trustee. (4.) This section applies only where the money or valuable consideration or property is received after the twenty-fourth day of December one thousand eight hundred and eighty-eight. (5.) Nothing in this section shall authorise a trustee to do any- thing which he is in express terms forbidden to do, or to omit anything which he is in express terms directed to do, by the instrument creating the trust. 18. — (1.) A trustee may insure against loss or damage by fire any building or other insurable property to any amount (includ- ing the amount of any insurance already on foot) not exceeding three equal fourth parts of the full value of such building or property, and pay the premiums for such insurance out of the income thereof or out of the income of any other property sub- ject to the same trusts, without obtaining the consent of any person who may be entitled wholly or partly to such income. (2.) This section does not apply to any building or property which a trustee is bound forthwith to convey absolutely to any beneficiary upon being requested to do so. (3.) This section applies to trusts created either before or after the commencement of this Act, but nothing in this section shall authorise any trustee to do anything which he is in express terms forbidden to do, or to omit to do anything which he is in express terms directed to do, by the instrument creating the trust. 19- — (!■) A trustee of any leaseholds for lives or years which are renewable from time to time, either under any covenant or TRUSTEE ACT, 1893. 457 contract, or by custom or usual practice may, if he thirQcs fit, 56 & 57 Viot. and shall, if thereto required by any person having any beneficial ^- interest, present or future, or contingent, in the leaseholds, use renewable his best endeavours to obtain from time to time a renewed lease leaseholds of the same hereditaments on the accustomed and reasonable renew ana raise terms, and for that purpose may from time to time make or money for concur in malting a surrender of the lease for the time being the purpose. subsisting, and do all such other acts as are requisite : Provided that, where by the terms of the settlement or will the person in possession for his hf e or other limited interest is entitled to enjoy the same without any obligation to renew or to contribute to the expense of renewal, this section shall not apply unless the consent in writing of that person is obtained to the renewal on the part of the trustee. {2.) If money is requh-ed to pay for the renewal, the trustee effecting the renewal may pay the same out of any money then in his hands in trust for the persons beneficially interested in the lands to be comprised in the renewal lease, and if he has not in his hands sufficient money for the purpose, he may raise the money reqxiired by mortgage of the hereditaments to be comprised in the renewed lease, or of any other hereditaments for the time being subject to the uses or trusts to which those hereditaments are subject, and no person advancing money upon a mortgage purporting to be under this power shall be bound to see that the money is wanted, or that no more is raised than is wanted for the purpose. (3.) This section applies to trusts created either before or after the commencement of this Act, but nothing m this section shall authorise any trustee to do anything which he is in express terms forbidden to do, or to omit to do anything which he is in express terms tirected to do, by the instrument creating the trust. 20. — (1.) The receipt in writing of any trustee for any money. Power of securities or other personal property or effects payable, trans- trustee to , . , , , , „ give receipts, ferable, or deliverable to him under any trust or power shall be a sufficient discharge for the same, and shall effectually exonerate the person paying, transferring, or delivering the same from seeing to the apphcation or being answerable for any loss or misapphcation thereof. (2.) This section apphes to trusts created either before or after the commencement of this Act. Power for 22. (1.) An executor or administrator may pay or allow any executors and debt or claim on any evidence bhat he thuiks sufficient. compound, &c. 458 APPENDIX. 56 & 57 ViOT. u. 53. Powers of two or more trustees. Exoneration of trustees in respect of certain powers of attorney. Implied indemnity of trustees. (2.) An executor or administrator, or two or more trustees, acting together, or a sole acting trustee whereby the instrument, if any, creating the trust a sole trustee is authorised to execute the trusts and powers thereof, may, if and as he or they may think fit, accept any composition or any security, real or per- sonal, for any debt or for any property, real or personal, claimed, and may allow any time for payment for any debt, and may compromise, compound, abandon, submit to arbitration, or otherwise settle any debt, account, claim, or thing whatever relating to the testator's or intestate's estate or to the trust, and for any of those purposes may enter into, give, execute, and do such agreements, instruments of composition or arrange- ment, releases, and other things as to him or them seem expedient, without being responsible for any loss occasioned by any act or thing so done by him or them in good faith. (3.) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of thaii instrument, and to the provisions therein contained. (4.) This section applies to executorships, admiaistratorships and trusts constituted or created either before or after the commencement of this Act. 22. — (1.) Where a power or trust is given to or vested in two or more trustees jointly, then, unless the contrary is expressed in the instrument, if any, creating the power or trust, the same may be exercised or performed by the survivor or survivors of them for the time being. (2.) This section applies only to trusts constituted after or created by instruments coming into operation after the thirty- first day of December one thousand eight hundred and eighty-one. 23. A trustee acting or paying money in good faith under or in pursuance of any power of attorney shall not be liable for any such act or payment by reason of the fact that at the time of the payment or act the person who gave the power of attorney was dead or had done some act to avoid the power, if this fact was not known to the trustee at the time of his so acting or paying. Provided that nothing ia this section shall affect the right of any person entitled to the money against the person to whom the payment is made, and that the person so entitled shall ha\e the same remedy against the person to whom the payment is made as he would have had against the trustee. 24. A trustee shall, without prejudice to the provisions of TRUSTEE ACT, 1893. 459 the instrument, if any, creating the trust, be chargeable only 56 & 57 Viot. for money and securities actually received by him notwith- °' °^ standing his signing any receipt for the sake of conformity, and shall be answerable and accountable only for his own acts, receipts, neglects, or defaults, and not for those of any other trustee, nor for any banker, broker, or other person with whom any trust moneys, or securities may be deposited, nor for the insufficiency or deficiency of any securities, nor for any other loss, unless the same happens through his own wilful default ; and may reimburse himself, or pay or discharge out of the trust premises, all expenses incurred in or about the execution of his trusts or powers. PART III. Powers of the Court. Appointment of New Trustees and Vesting Orders. 25. — (1.) The High Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpe- dient, difficult, or impracticable so to do without the assistance of the Court, make an order for the appoiutment of a new trustee or new trustees either ia substitution for or in addition to any existing trustee or trustees, or although there is no exist- ing trustee. In particular and without prejudice to the generality of the foregoing provision, the Court may make an order for the appointment of a new trustee in substitution for a trustee who is convicted of felony, or is a bankrupt. (2.) An order under this section, and any consequential vesting order or conveyance, shall not operate further or other- ^vise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that pin:pose contained in any instrument would have operated. (3.) Kothing in this section shall give power to appoint an executor or administrator. 26. In any of the following cases, namely : — (i.) 'SVhere the High Court appoints or has appointed a new trustee ; and (ii.) Where a trustee entitled to or possessed of any land, or entitled to a contingent right therein, either solely or jointly with any other person, — (a) is an infant, or (6) is out of the jurisdiction of the High Court, or (c) cannot be found ; and Power of the Court to appoint new trustees. Vesting orders as to land. 460 APPENDIX. 56 & 57 ViOT. c. 53. Orders as to contingent rights of unborn persons. (iii.) Where it is uncertain who was the survivor of two or more trustees jointly entitled to or possessed of any land ; and (iv.) Where, as to the last trustee known to have been entitled to or possessed of any land, it is uncertain whethejr he is living or dead ; and (v.) Where there is no heir or personal representative to a trustee who was entitled to or possessed of land and has died intestate as to that land, or where it is uncer- tain who is the heir or personal representative or devisee of a trustee who was entitled to or possessed of land and is dead ; and (vi.) Where a trustee jointly or solely entitled to or possessed of any land, or entitled to a contingent right therein, has been required, by or on behalf of a person entitled to require a conveyance of the land or a release of the right, to convey the land or to release the right, and has wilfully refused or neglected to convey the land or release the right for twenty-eight days after the date of the requirement ; the High Court may make an order (in this Act called a vesting order) vesting the land in any such person in any such manner and for any such estate as the Court may direct, or releasing or disposing of the contingent right to such person as the Court may direct. Provided that — (a.) Where the order is consequential on the appointment of a new trustee the land shall be vested for such estate as the Court may direct in the persons who on the appointment are the trustees.; and (6.) Where the order relates to a trustee entitled jointly with another person, and such trustee is out of the juris- diction of the High Court or cannot be found, the land or right shall be vested in such other person, either alone or with some other person. 27. Where any land is subject to a contingent right in an imborn person or class of unborn persons who, on coming into existence would, in respect thereof, become entitled to or possessed of the land on any trust, the High Court may make an order releasing the land from the contingent right, or may make an order vesting in any person the estate to or of which the unborn person or class of unborn persons would on coming into existence, be entitled or possessed in the land. TRUSTEE ACT, 1898. 461 28. Where any person entitled to or possessed of land, or 66 & 57 Vioj, entitled to a contingent right in land, by way of security for °- ^^• money, is an infant, the High Court may make an order vesting Vesting order or releasing or disposing of the land or right in like manner as in place of in the case of an infant trustee. conveyance 29. "\\1iere a mortgagee of land has died without having mortcacee. entered into the possession or into the receipt of the rents and Vestiuo- order profits thereof, and the money due in respect of the mortgage in place of has been paid to a person entitled to receive the same, or that conveyance last-mentioned person consents to any order for the reconveyance devisee' of of the land, then the High Court may make an order vesting the heir, &i\, or land in such person or persons in such manner and for such P^i'sonal estate as the Court may direct in any of the following cases, of morteao-ee^ namelj", — (a.) Where an heir or personal representative or devisee of the mortgagee is out of the jurisdiction of the High Court or cannot be found; and (6.) Where an heir or personal representative or devisee of the mortgagee on demand made by or on behalf of a, person entitled to require a conveyance of the land has stated in writing that he will not convey the same or does not convey the same for the space of twenty- eight days next after a proper deed for conveying the land has been tendered to him by or on behalf of the person so entitled ; and (c.) Where it is uncertain which of several devisees of the mortgagee was the survivor ; and (<^.) Where it is uncertain as to the survivor of several devisees of the mortgagee or as to the heir or personal representative of the mortgagee whether he is living or dead; and (p.) Where there is no heir or personal representative to a mortgagee who has died intestate as to the land, or where the mortgagee has died and it is 'uncertain who is his heir or personal representative or devisee. 30. Where any court gives a judgment or makes an order Vesting order directing the sale or mortgage of any land, every person who is eonsequeiitial entitled to or possessed of the land, or entitled to a contingent fOTialfor " right therein as heir, or under the will of a deceased person for mortgage of payment of whose debts the judgment was given or order made, land. and is a party to the action or proceeding in which the judg- ment or order is given or made or is otherwise bound by the judgment or order, shall be deemed to be so entitled or 462 APPENDIX. 56 & 57 Vict. c. 53. Vesting order consequential on judgment for specific performance, &c. Eflect of vesting order. Power to appoint person to convey. Effect of vesting order possessed, as the case may be, as a trustee vs^ithin the meaning of this Act ; and the High Court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate as that Court thinks fit in the purchaser or mortgagee or in any other person. 31. Where a judgment is given for the specific performance of a contract concerning any land, or for the partition, or sale in lieu of partition, or exchange, of any land, or generally where any judgment is given for the conveyance of any land either in cases arising out of the doctrine of election or other- wise, the High Court may declare that any of the parties to the action are trustees of the land or any part thereof vvdthin the meaning of this Act, or may declare that the interests of unborn persons who might claim under any party to the action, or under the will or voluntary settlement of any person deceased who was during his lifetime a party to the contract or tran- sactions concerning which the judgment is given, are the interests of persons who, on coming into existence, would be trustees within the meaning of this Act, and thereupon the High Court may make a vesting order relating to the rights of those persox\s, born and unborn, as if they had been trustees. 32. A vesting order under any of the foregoing provisions shall in the case of a vesting order consequential on the appoint- ment of a new trustee, have the same effect as if the persons who before the appointment were the trustees (if any) had duly executed all proper conveyances of the land for such estate as the High Court directs, or if there is no such person, or no such person of full capacity, then as if such person had existed and been of full capacity and had duly executed all proper convey- ances of the land for such estate as the Court directs, and shall in every other case have the same effect as if the trustee or other person or description or class of persons to whose rights or supposed rights the said provisions respectively relate had been an ascertained and existing person of full capacity, and had executed a conveyance or release to the effect intended by the order. 33. In all cases where a vesting order can be made under any of the foregoing provisions, the High Court may, if it is more convenient, appoint a person to convey the land or release the contingent right, and a conveyance or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision. 34.— (1.) Where an order vesting copyhold land in any person TRUSTEE ACT, 1893. 463 is made under this Act with the consent of the lord or lady of 56 & 57 Vict. the manor, the land shall vest accordingly without surrender "• or admittance. as to copy- (2.) Where an order is made under this Act appointing any ^°^^- person to convey any copyhold land, that person shall execute and do all assurances and things for completing the assurance of the land ; and the lord and lady of the manor and every other person shall, subject to the customs of the manor and the usual payments, be bound to make admittance to the land and to do all other acts for completing the assurance thereof, as if the persons in whose place an appointment is made were free from disability and had executed and done those assurances and things. 35, — (1.) In any of the following oases, namely : — Vesting orders (i.) "Where the High Court appoints or has appointed a new "^ 1° ^^°'''^ , , , , ^^ and choses m trustee; and action. (ii.) "Where a trustee entitled alone or jointly with another person to stock or to a chose in action — (a) is an infant, or (6) is out of the jurisdiction of the High Court, or (c) cannot be found ; or (d) neglects or refuses to transfer stock or receive the dividends or income thereof, or to sue for or recover a chose in action, according to the direction of the person absolutely entitled thereto for twenty-eight days next after a request in writing has been made to him by the person so entitled, or (e) neglects or refuses to transfer stock or receive the dividends or income thereof, or to sue for or recover a chose in action for twenty-eight days next after an order of the High Court for that purpose has been served on him ; or ' (iii.) "Where it is uncertain whether a trustee entitled alone or jointly with another person to stock or to a chose in action is alive or dead, the High Court may make an order vesting the right to transfer or call for a transfer of stock, or to receive the dividends or income thereof, or to sue for or recover a chose in action, in any such person as the Court may appoint : Provided that — (a.) "Where the order is consequential on the appointment by the Court of a new trustee, the right shall be vested in 464 APPENDIX. 56 & 57 Vict. 0. 53. Persons entitled to apply for orders. Powers of new trastee appointed by Court. the persons who, on the appointment, are the trustees ; and (6.) Where the person whose right is dealt with by the order was entitled jointly with another person, the right shall be vested in that last-mentioned person either alone or jointly with any other person whom the Court may appoint. (2.) In all oases where a vesting order can be made under this section, the Court may, if it is more convenient, appoint some proper person to make or join in making the transfer. (3.) The person in whom the right to transfer or call for the transfer of any stock is vested by an order of the Court under this Act, naay transfer the stock to himself or any other person, according to the order, and the Banks of England and Ireland and all other companies shall obey every order under this section according to its tenor. (4.) After notice in writing of an order under this section it shall not be lawful for the Bank of England or of Ireland or any other company to transfer any stock to which the order relates or to pay any dividends thereon except in accordance with the order. (5.) The High Court may make declarations and give direc- bions concerning the manner in which the right to any stock or chose in action vested under the provisions of this Act is to be exercised. (6.) The provisions of this Act as to vesting orders shall apply to shares in ships registered under the Acts relating to merchant shipping as if they were stock. 36. — (1.) An order under this Act for tjie appointment of a, new trustee or concerning any land, stock, or chose in action subject to a trust, may be made on the application of any person beneficially interested in the land, stock, or chose in action, whether under disability or not, or on the application of any person duly appointed trustee thereof. (2.) An order under this Act concerning any land, stock, or chose in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the money secured by the mortgage. 37. Every trustee appointed by a court of competent juris- diction shall, as well before as after the trust property becomes by law, or bj' assurance, or otherwise, vested in him, have the same powers, authorities, and discretions, and may in all TRUSTEE ACT, 1893. 465 respects act as if he had been origmally appomted a trustee by 56 & 57 Viot. the instrument, if any, creating the trust. c- 53. 38. The High Court may order the costs and expenses of Power to and incident to any application for an order appointing a new charge costs trustee, or for a vestiag order, or of and incident to any such gg^^™'^* order, or any conveyance or transfer in pursuance thereof, to be paid or raised out of the land or personal estate in respect whereof the same is made, or out of the income thereof, or to be borne and paid in such manner and by such persons as to the Court may seem just. 39. The powers conferred by this Act as to vesting orders Trustees of may be exercised for vesting anj' land, stock, or chose in action charities. in any trustee of a charity or society over which the High Court would have jurisdiction upon action duly instituted, whether the appointment of the trustee was made by instrument under a power or by the High Court under its general or statutory jurisdiction. 40. Where a vesting order is made as to any land under this Orders made Act or under the Lunacy Act, 1890, or under any Act relating "P°ii certain to lunacy in Ireland, founded on an allegation of the personal v „>,„ elusive incapacity of a trustee or mortgagee, or on an allegation that evidence. a trustee or the hen or personal representative or devisee of a 53 & 54 Vict. mortgagee is out of the jurisdiction of the High Court or cannot c. 5. be found, or that it is uncertain which of several trustees or which of several devisees of a mortgagee was the survivor, or whether the last trustee or the heir or personal representative or last surviving devisee of a mortgagee is living or dead, or on an allegation that any trustee or mortgagee has died intestate without an heir or has died and it is not known who is his heir or personal representative or devisee, the fact that the order has been so made shall he conclusive evidence of the matter so alleged in any court upon any question as to the validity of the order; but this section shall not prevent the High Court from directing a reconveyance or the payment of costs occasioned by any such order if improperly obtained. 41. The powers of the High Court ui England to make vesting Application orders under this Act shall extend to all land and personal of vestnig estate in Her Majesty's dommions, except Scotland. lut^li ° England. Payment into Court by Trustees. 42. (1.) Trustees, or the majority of trustees, having in Payment into their hands or under their control money or securities belongmg ^Jourt by u H H 466 APPENDIX. 56 & 57 Vict. 0. 53. Power to give judgment in absence of a trustee. Power to sanction sale of land or minerals separately. to a trust, may pay the same into the High Court ; and the same shall, subject to rules of Court, be dealt with according to the orders of the High Court. (2.) The receipt or certificate of the proper of&cer shall be a sufficient discharge to trustees for the money or securities so paid into Court. (3.) Where any moneys or securities are vested in any persons as trustees, and the majority are desirous of paying the same into court, but the concurrence of the other or others cannot be obtained, the High Court may order the payment into court to be made by the majority without the concurrence of the other or others ; and where any such moneys or securities are deposited with any banker, broker, or other depositary, the Court may order payment or delivery of the moneys or securities to the majority of the trustees for the purpose of payment into court, and every transfer payment and delivery made in pursu- ance of any such order shall be valid and take effect as if the same had been made on the authority or by the act of all the persons entitled to the moneys and securities so transferred, paid, or delivered. Miscellaneous. 43. Where in any action the High Court is satisfied that dihgent search has been made for any person who, in the character of trustee, is made a defendant in any action, to serve him with a process of the Court, and that he cannot be found, the Court may hear and determine the action and give judgment therein against that person in his character of a trustee, as if be had been duly served, or had entered an appearance in the action, and had also appeared by his counsel and solicitor at the hearing, but vidthout prejudice to any interest he may have in the matters in question in the action in any other character. 44. — (1.) Where a trustee is for the time being authorised to dispose of land by way of sale, exchange, partition, or enfran- chisement, the High Court may sanction his so disposing of the land with an exception or reservation of any minerals, and with or without rights and powers of or incidental to the working, getting, or carrying away of the minerals, or so dis- posing of the minerals, with or without the said rights or powers, separately from the residue of the land. (2.) Any such trustee, with the said sanction previously obtained, may, unless forbidden by the instrument, creating the trust or direction, from time 1io time, without any further TRUSTEE ACT, 1893. 467 application to the Court, so dispose of any such land or minerals. (3.) Nothing in this section shall derogate from any power which a trustee may have under the Settled Land Acts, 1882 to 1890, or otherwise. 45. — (1.) Where a trustee commits a breach of trust at the instigation or request or with the consent in writing of a bene- ficiary, the High Court may, if it thinks fit, and notwithstanding that the beneficiary may be a married woman entitled for her separate use and restrained from anticipation, make such order as to the Court seems just, for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or person claiming through him. (2.) This section shaU apply to breaches of trust committed as well before as after the passing of this Act, but shall not apply so as to prejudice any question in an action or other proceeding which was pending on the twenty-fourth day of December one thousand eight hundred and eighty-eight, and is pending at the commencement of this Act. 46. The provisions of this Act with respect to the High Court shall, in their apphcation to cases within the jurisdiction of a palatine court or county court, include that court, and the procedure under this Act in palatine courts and county courts shall be in accordance vnth. the Acts and rules regulating the procedm-e of those courts. 56 & 57 Vict. 0. 53 Power to make beneticiary indemnify for breach of trust. Jiu-isdictiou of palatine and county courts. PART IV. ^Miscellaneous and Supplemental. 47_ — (1.) All the powers and provisions contained in this Act with reference to the appointment of new trustees, and the dis- charge and retirement of trustees, are to apply to and include trustees for the purposes of the Settled Land Acts, 1882 to 1890, whether appointed by the Court or by the settlement, or under provisions contained in the settlement. (2.) This section appUes and is to have effect with respect to an appointment or a discharge and retirement of trustees taking place before as well as after the commencement of this Act. (.3.) This section is not to render invalid or prejudice any appointment or any discharge and retirement of trustees effected, before the passing of this Act, otherwise than under the provisions of the Conveyancing and Law of Property Act, 1881. H H 2 Application to trustees under Settled Land Acts of )irovisions as to appoint- ment of trustees. 44 & iu Vict. c 41. 468 APPENDIX. 56 & 57 Vict. 0. 53. Trust estates not affected by trustee becoming a convict. 33 & 34 "Vict, c. 23. Indemnity. Definitions 48. Property vested iii any person on any trust or by way of mortgage shall not, in ease of that person becoming a convict within the meaning of the Forfeiture Act, 1870, vest in any such administrator as may be appointed under that Act, but shall remain in the trustee or mortgagee, or survive to his co-trustee or descend to his representative as if he had not become a convict ; provided that this enactment shall not affect the title to the property so far as relates to any beneficial interest therein of any such trustee or mortgagee. 49. This Act, and every order purporting to be made under this Act, shall be a complete indemnity to the Banks of England and Ireland, and to aU persons for amy acts done pursuant thereto ; and it shall not be necessary for the Bank or for any person to inquire concerning the propriety of the order, or whether the Court by which it was made had jurisdiction to make the same. 50. In this Act, unless the context otherwise requires, — The expression "bankrupt " includes, in Ireland, insolvent ; The expression " contingent right," as applied to land, includes a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of the interest or possibiUty is or is not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent : The expressions " convey " and " conveyance " apphed to any person include the execution by that person of every necessary or suitable assurance for conveying, assigning, appointing, surrendering, or otherwise transferring or disposing of land whereof he is seised or possessed, or wherein he is entitled to a contingent right, either for his whole estate or for any less estate, together with the performance of all formalities required by law to the validity of the conveyance, including the acts to be performed by married women and tenants in tail in accordance with the provisions of the Acts for abolition of fines and recoveries in England and Ireland respec- tively, and also including surrenders and other acts which a tenant of customary or copyhold lands can himself perform preparatory to or in aid of a complete assurance of the customary or copyhold land ; The expression " devisee " includes the heir of a devisee and the devisee of an heir, and any person \\ ho may claim right by devolution of title of a similar description : TRUSTEE ACT, 1893. 469 The expression " instrument " includes Act of Parliament : 56 & 57 Vict. The expression "land" includes manors and lordships, and °- 53. reputed manors and lordships, and incorporeal as well as corporeal hereditaments, and any interest therein, and also an undivided share of land : The expressions " mortgage " and " mortgagee " include and relate to every estate and interest regarded in equity as merely a security for money, and every person deriving title under the original mortgagee : The expressions " pay " and " payment " as applied in rela- tion to stocks and securities, and in connexion with the expression " into court " include the deposit or transfer of the same in or mto court : The expression " possessed " applies to receipt of income of, and to any vested estate less than a life estate, legal or equitable, in possession or in expectancy, in, any land : The expression " property " includes real and personal property, and any estate and interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest, whether in possession or not : The expression " rights " includes estates and interests : The expression " securities " includes, stocks, funds, and shares ; and so far as relates to payments into court has the same meaning as in the Court of Chancery 35 & gg vict (Funds) Act, 1872 : c. 44. The expression "stock" includes fully paid up shares; and, so far as relates to vesting orders made by the Court under this Act, includes any fund, annuity, or security transferable in books kept by any company or society, or by instrument of transfer either alone or accom- panied by other formalities, and any share or interest therein : The expression " transfer," in relation to stock, includes the performance and execution of every deed, power of attorney, act, and thing on the part of the transferor to effect and complete the title in the transferee : The expression "trust ' does not include the duties incident to an estate conveyed by way of mortgage ; but with this exception the expressions " trust " and " trustee " include implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust 470 APPENDIX. 66 & 57 VioT. property, and the duties incident to the office of ^^_J_1^ personal representati\'e of a deceased person. Repeal. 51. The Acts mentioned in the schedule to this Act are hereby repealed except as to Scotland to the extent mentioned in the third column of that schedule. Extent of Act. 52. This Act does not extend to Scotland. Short title. 53. This Act may be cited as the Trustee Act, 1893. Commence- 54. This Act shall come into operation on the first day of ^^nt. January one thousand eight hundred and ninety-four. ( 471 ) THE LAND TEANSFEE ACT, 1897 (60 & 61 Vict. c. 65). An Act to establish a Eeal Eepresentative, and to amend the Land Transfer Act, 1875. [6th August, 1897.] Whereas it is expedient to establish a real representative, and to amend the Land Transfer Act, 1875, in this Act referred to as " the principal Act : " Be it therefore enacted, &c. : — PAET I. Establishment of a Eeal Representative. 1. — 11.) Where real estate is vested in any person without a right in any other person to take by survivorship it shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to tune as if it were a chattel real vesting in them or him. (2.) This section shall apply to any real estate over which a person executes by will a general power of appointment, as if it were real estate vested in him. (3.) Probate and letters of administration may be granted in respect of real estate only, although there is no personal estate. (4.) The expression "real estate," in this part of this Act, shall not be deemed to include land of copyhold tenure or customary freehold in any case in which an admission or any act by the lord of the manor is necessary to perfect the title of a purchaser from the customary tenant. {5.J This section applies only in cases of death after the commencement of this Act. 2.— (1.) Subject to the powers, rights, duties, and liabilities herein-after mentioned, the personal representatives of a deceased person shall hold the real estate as trustees for the persons by law beneficially entitled thereto, and those persons 60 & 61 Vict. 0. 65. 38 & 39 Vict. c. 87. Devolution of legal interest in real estate on death. Provisions as to adminis- tration. 472 APPENDIX. 60 & 61 Yli' c. 65. Provision for transfer to heir or devisee. shall have the same power of reqiiiring a transfer of real estate as persons beneficially entitled to personal estate have of requiring a transfer of such personal estate. (2.) All enactments and rules of lavs' relating to the effect of probate or letters of administration as respects chattels real, and as respects the dealing with chattels real before probate or administration, and as respects the payment of costs of adminis- tration and other matters in relation to the administration of personal estate, and the powers, rights, duties, and liabilities of personal representatives in respect of personal estate, shall apply to real estate so far as the same are applicable, as if that real estate were a chattel real vesting in them or him, save that it shall not be lavrful for some or one only of several joint personal representatives, without the authority of the court, to sell or transfer real estate. (3.) In the administration of the assets of a person dying after the commencement of this Act, his real estate shall be administered in the same manner, subject to the same liabilities for debt, costs, and expenses, and vnth the same incidents, as if it were personal estate ; provided that nothing herein con- tained shall alter or affect the order in which real and personal assets respectively are now applicable in or towards the payment of funeral and testamentary expenses, debts, or legacies, or the liability of real estate to be charged virith the payment of legacies. (4.) Where a person dies possessed of real estate, the court shall, in granting letters of administration, have regard to the rights and interests of persons interested in his real estate, and his heir-at-law, if not one of the next of kin, shall be equally entitled to the grant with the next of kin, and provision shall be made by rules of court for adapting the procedure and practice in the grant of letters of administration to the case of real estate. 3. — (1.) At any time after the death of the owner of any land, his personal representatives may assent to any devise contained in his will, or may convey the land to any person entitled thereto as heir, devisee, or otherwise, and may make the tissent or conveyance, either subject to a charge for the payment of any money which the personal representatives are liable to pay, or without any such charge ; and on such assent or conveyance, subject to a charge for aU moneys (if any) which the personal representatives are liable to pay, all liabilities of the personal representatives in respect of the land shall cease, except as to LAND TRANSFER ACT, 1897. 473 any acts done or contracts entered into by them before such 60 & 61 Vict. assent or conveyance. ^' ""• (2.) At any time after the expiration of one year from the death of the owner of any land, if his personal representatives have failed on the request of the person entitled to the land to convey the land to that person, the court may, if it thinks fit, on the application of that person, and after notice to the personal representatives, order that the conveyance be made, or, in the case of registered land, that the person so entitled be registered as proprietor of the land, either solely or jointly with the personal representatives. (3.) Where the personal representatives of a deceased person are registered as proprietors of land on his death, a fee shall not be chargeable on any transfer of the land by them unless the transfer is for valuable consideration. (4.) The production of an assent in the prescribed form by the personal representatives of a deceased proprietor of registered land shall authorise the registrar to register the person named in the assent as proprietor of the land. 4. — (1.) The personal representatives of a deceased person Appropriation may, in the absence of any express provision to the contrary "' . '"^ ™ contained in the wHl of such deceased person, with the consent Wacv or share of the person entitled to any legacy given by the deceased in estate, person or to a share in his residuary estate, or, if the person entitled is a lunatic or an infant, with the consent of his committee, trustee, or guardian, appropriate any part of the residuary estate of the deceased in or towards satisfaction of that legacy or share, and may for that purpose value in accord- ance with the prescribed provisions the whole or any part of the property of the deceased person in such manner as they think fit. Provided that before any such appropriation is effectual, notice of such intended appropriation shall be given to all persons interested in the residuary estate, any of whom may thereupon within the prescribed time apply to the court, and such valuation and appropriation shall be conclusive save as otherwise directed by the court. (2.) Where any property is so appropriated a conveyance thereof by the personal representatives to the person to whom it is appropriated shall not, by reason only that the property so conveyed is accepted by the person to whom it is conveyed in or towards the satisfaction of a legacy or a share in residuary estate, be liable to any higher stamp duty than that payable on a transfer of personal property for a like purpose. 474 APPENDIX. 60 & 61 Vict. (3.) In the case of registered land, the production of the ^' prescribed evidence of an appropriation under this section shall authorise the registrar to register the person to whom the property is appropriated as proprietor of the land. Liability for 5. Nothing in this part of this Act shall affect any duty pay- (i^iy- able in respect of real estate or impose on real estate any other duty than is now payable in respect thereof. 25. This Act shall come into operation on the first day of January one thousand eight hundred and ninety-eight. INDEX, [The figures refer to the paragraphs, and not to the pages, except where otherwise indicated.! ABATEMENT. of debts and legacies, 471 ACCIDENT, definition of, 61 — 3 remediable at law, 64 not remediable at law or in equity, 65 — 9 remediable in equity, 70 — 9 arising from neglect, 66 preventing fulfilment of engagement, 67 to property in lease, 67 death of vendor before receipt of annuity, 67 defective execution of a will, 69 defective execution or non-execution of a power, 77— !> loss of deeds, 71 — 4 loss of bonds and unsealed securities, 75, 76 payments by executor, 76a ACCOUNT, 454—465 settlement of accounts, 454 division- of accounts, 455 open accounts, 456 stated accounts, 457, 458 settled accounts, 459 — 463 appropriation of payments, 464 partnership account, 643 agency, 465, 664 mesne profits, 665 waste, 666 tithes and moduses, 667 ACQUIESCENCE, in a breach of trust, 373 ACTION, THINGS IN, assignment of, 432 — 9 ACTION TO PERPETUATE TESTIMONY, 751b ADEMPTION, of portions under a settlement, 704 — 7 of legacies to a child, 708, 709 no ademption of legacies to strangers, 710 476 INDEX. ADMINISTRATION, jurisdiction as to, 466 proceedings by executor or administrator , 467 proceedings of creditors, 468 division of assets, 469, 470 of legal assets, 469 — 471 of equitable assets, 469 — 471 of assets, of insolvent estates and companies, 472 refunding share of estate, 473 operation of the Statute of Limitation as regards debts, 474 order of administration of different properties, in payment of debts, legacies, and annuities, 475 — 488 order of satisfaction, 489 — 492 marshalling of assets, 493 — 500 in the case of charitable legacies, 496, 497 foreign assets, 501 — 504 lex domicilii, 503, 504 lex fori, 504a priority of debts, 474a ADMINISTEATOBS. See Administration. may not derive a benefit, 163 purchase from, 192 ADVANCEMENT, 313, 314, 825 ADVISER, fraud of a confidential, 153 ADVOWSON, mortgage of, 524 AGENCY, 664, 743 AGENT, fraud of an, 163, 362—4 sales and purchases by, 160, 162, 365 gift to, 365 liability to account, 465 AGREEMENT. See Peaud— Specific Pebpoemance. ALIEN, trust for an, 271 ALIENATION, restraint on, 851 ANNUITY, not a satisfaction, 714 ANTICIPATION, restraint on, 851, 852 APPOINTMENT. See Powees. fraudulent, 201—3 election, in case of an, 681 satisfaction by an, 714 APPORTIONMENT, 622—636. See Conteibdtion. INDEX. 477 APPRENTICE PEE, apportionment of, 624 APPRENTICESHIP, specific performance of articles of, 405 cancellation of, 819 ARBITRATION, interference of equity in regard to, 440 — 3 ASSETS. See Administration. ASSIGNMENT. right to call for, 48 for benefit of creditors, 247 — 252 act of bankruptcy under 46 & 47 Vict. c. 52. ..252a in another's name, 311 — 314 against public policy, 428 et seq. of pay, pensions, or prize money, 429 of pretended titles, 430 of mere naked rights to litigate, 481 of possibilities, or things in action, 432 — 9 what amounts to an, 435 what must be done to obtain quasi possession under an assignment, 436 of mortgage, 578—582 payment to assignee of a debt, 437 assignee taking subject to equities of assignor, 439 suit against equitable assignee of a legal term, 435 of dower, 724 AUCTIONEERS, purchases by, 162 AUCTIONS. See Sale— Vendor frauds on, 178 AWARDS, disclosing grounds of, 440 not compelled, 449 enforcing, 441 setting aside, 442 B. BANKRUPTS, solicitors and trustees becoming purchasers, 162 BILL OP EXCHANGE, destruction of, 76 BILLS OP PEACE, 747—751 rights in contravention of public rights not protected by, 751 BONDS, lost, 72 post-obit, 172 assignment of, 436 delivery up of, 738 478 INDEX. BOUNDARIES, settlement of, 720 — 3 BREACH, of trust. See Trust — Teustbbs — Execution. ■CANCELLING, 725—738 mortgage, 587 apprenticeship, 819 ■CARGO, assignment of, 433 contribution, 636 OHAMPEBTY, 145, 430 'CHARGE, what debts included, 303 trust created by, 801 devise charged with or subject to charge of debts, 301 of debts, 301—310 of legacies, 304 — 305a mode of giving effect to, 306 — 310 (CHARITIES, jurisdiction as to, page 181, u. favoured in regard to the want of proper trustees, 273 defects in conveyances, 274 the objects, 275, 276 scheme, 276a surplus income, 277 lapse of time, 278 abroad, 279 reward to informers ka to, 280 altering a charity, 281 •CHATTELS, delivery of, 791 "CHILDREN. See Infants. what children to be included, 210 construction of provisions for younger children, 216 removal of children from their parents, 799 waiver of provision for, 889 frauds on, 149, 150 •COLONIAL, property or' contracts, 54 — 8 COMMON, proceeding to establish a right of, 749 COMPENSATION, old rule as to, 668 Stat. 21 & 22 Vict. c. 27, s. 1, as to damages, 668 to a defendant, 669 relief against penalties and forfeitures, 670 — 4 no relief against liquidated damages, 675 for a breach of covenant or condition, 676 /relief against statutory penalties or forfeitures, 677 INDEX. 479 COMPROMISE, 88 CONCEALMENT, 116—121, 176—186 CONDITION. See Contract. illegal, 138, 286 relief against breach of, 670, 676 CONFIRMATION, distinction between void and voidable transactions, as regards confirmation, 146, 147 CONSENT, refusal of consent to a marriage, 126 CONSIDERATION. See Fraud. inadequate, 122 — 5 excessive, 172 — 4 conveyance without consideration, 183, 184, 193 — 200, 287 — 290 agreement not generally enforced in the absence of a valuable consideration, 245, 421 CONSIGNMENT, revocableness of, 253 CONTINGENT INTERESTS, assignment of, 433 CONTINGENT REMAINDERS, trustees to support, 388 CONTRACT. See Fraud— SpBcrFic Pebfoemance. CONTRIBUTION. See Incumbrances. towards incumbrances, 625—631 keeping down interest on incumbrances, 628—631 towards charges of renewal of leaseholds, 632 between sureties, 633 — 5 interest, 635a towards a loss or expense in a voyage, 636 CONVERSION, change in the character of property by agreement or direction to convert, 42—7, 409, 410 undisposed-of produce of real estate, 295, 296 undisposed-of part of mixed fund, 297 undisposed-of part of money directed to be converted, or of the produce thereof, 298, 298a failure of objects for, 299 of terminable or reversionary property, 359 time allowed for, 360 of infant's property, 800 CONVEYANCE, with notice of another's title, 187 — 191 without consideration, and without use or trust, 287 — 290 in another's name, 311 — 314 right to call for, 48 COPIES, of deeds, 736 480 INDEX. COPYRIGHT, injunctions to restrain infringements of, 772 — 775 COSTS, mortgage for, 566 mortgagee's costs of suit, 521 COUNSEL, purchase by, 162 COUNTERCLAIM, 117, 659—663. , See Set-opf. COVENANT, where distributive share is a satisfaction of an obligation by, 52 must be fulfilled, notwithstanding accident, 67 to purchase lands, 316 to leave property, 181 to settle lands, 317 to convey, transfer, or pay money or other property, 825, 326 to settle, ■ charge, dispose of, or afiect after-acquired property, 433 where relief is granted as to a breach of, 670, 676 CREDITORS. See Debtob. favoured, 302 purchases by, 162 frauds on, 185, 186 frauds by, 164, 181 assignments for benefit of, 247 — 252 preferences of, 185, 186, 248 payment of legatees or distributees before, 324 where they cannot foUow the assets, 382 — 4 proceedings of, 468 rights of joint creditors of a partnership, 648 priority as between joint and separate creditors of partnership,. 649 may proceed against a deceasfed partner's or joint debtor's estate in the first instance, 650, 651 election in the case of, 694 legacies to, 712 by, 713 right to benefit of securities, 654 — 8 rights as against general appointee, 203 CRIMINAL PROCEEDINGS, suppression of, 144 CURTESY, husband^s estate by, 841 CY PRES DOCTRINE, 276 D. DAMAGES, 668—678. See Compensation. DEBTOR. See Crbditoe. frauds in the case of persons standing in the confidential relation, of debtor, creditor, and surety, 164 INDEX. 481 DEBTOR— contimied. legacies by, 712 to, 713 direction to debtor to hold for a third person, 230 proceedings against estate of deceased joint debtor in the first instance, 650, 651 DEBTS. See Set-opp. what included in a charge, or trust, or power, for payment of debts, 303 devise in trust to pay, 301 devise charged with or subject to, 301 indirect charge of, 302 collateral securities for a debt assigned, 318 due from executor, 340 assignment of, 436 payments to assignee of a debt, 437 payment of mortgage debt, 479—482, 489 — 491, 569— 572ii priority of payment, 474a by breach of trust, 370 — 4 operation of Statute of Limitations as regards, 474 executor personally liable for, 382, 383 abatement of, 471 order of administration of difEerent properties in payment of,. 475—488 marshalling of securities, 652, 653 DECLARATION of trust, 228—230, 238 DEEDS. See Mistake. destroyed, lost, or suppressed, 71 — i production of, by mortgagee, 526 cancelling, delivering up, and securing, 725 — 738 inspection and copies of, 736 DELIVERING UP, of documents, 725 — 738 of chattels, 791 DEPOSIT, of documents, 790 mortgage by, 592—601 DE"ST:SEES. See Will. under a will defectively executed, 69 DIRECTORS, remuneration, 345 DISABILITY. See Infants — Lunatics — Maeeied Women. to contract, 419 election by persons under, 696 DISTRIBUTIVE SHARE, where a satisfaction of a covenant, 52 DOCTOR, fraud of a, 159 S. II 482 INDEX. DOCUMENTS, canoelling, delivering up, and securing, 725 — 738 inspection and copies of, 736 deposit of, 790 DOMICILE, how far the law of domicile governs, 56, 57, 501 — i DONATIONES MOETIS CAUSA, 219—223 DOWER, right to, 238 assignment of, 724 DURESS, frauds on persons under, 131 E. ELECTION, defined, 679 at law, 680 in equity, 681 — 7 as to one benefit given by will, 688 need not be made in ignorance of circumstances, 690 by conduct, 691 presumed, 692, 693 in the case of creditors, 694 by a person under disability, 696 in the case of a settlement, 689 in the case of a gift under a mistake, 695 by persons having separate rights as next of kin of person who died without electing, 697 EQUITY, foUows the law, 26—32 only assists the vigilant, 38, 33a equal equity, 34, 68 equality is, 35 he who seeks equity must do equity, 38 — 40 regards as done what ought to have been done, 41 — 9 to a settlement. See Mabbied Women. EQUITY JURISDICTION, where equity had exclusive jurisdiction, 7 where equity had concurrent jurisdiction, 8 — 14 on account of the inadequacy of the legal relief, 8 or to avoid circuity of action, or multiplicity of suits, 9 or to take due care of the rights of all, 10 or on account of the necessity for a discovery, 12 or on account of the original denial of due relief at law, 13 or the doubtfulness of obtaining such relief, 14 where equity had auxiliary jurisdiction, 15 where it had no jurisdiction, 16 — 18 EQUITY JURISPRUDENCE. See Natubai, Justice. definition of, 2 true character of, 3 — 6 division of, 60 INDEX. 483 EQUITY JURISPRUDENCE— coTO. 63, s. 3 (Mortgages of Ships), 609 28 & 29 Viot. .;. 99, s. 1, par. 8 (Injunctions), 758 30 & 31 Vict. u. 69 (Mortgage Debts), 485 — c. 132 (Investments), 3ol — c. 144 (Life Assurance), 432 31 Vict. c. 4 (Purchase of Reversions), 170, 171 31 & 32 Vict. c. 86 (Marine Insurance), 432 32 & 33 Vict. c. 46, s. 5 (Debt), 857b 33 & 34 Vict. u. 28 (Solicitors), 157 500 INDEX. STATUTES— comimMci, 33 & 34 Vict. fc. 93 (Married Women), 820, 823, 833, 83i— 845, 859, 860, 867, 868 36 Vict. 0. 12, s. 1 (Custody of Infant), 797 36 & 37 Vict. c. 66 (Judicature Act, 1873), 2, 20 — c. 66, s. 16 (Jurisdiction of High Court), 751a — • c. 66, s. 24 (Concurrent Jurisdiction), 20, 64, 751a — . c. 66, s. 25 (Changes in certain points of Juris- prudence), 20 — 0. 66, s. 25 (2) (Statute of Limitations), 268 — 0. 66, s. 25 (3) (Waste), 319a — c. 66, s. 25 (4) (Merger), 20 — c. 66, s. 25 (5) (Suits for Possession. by Mortgagors), 560 — c. 66, s. 25 (6) (Assignment of Debts and Choses in Action), 434 — c. 66, s. 25 (7) (Stipulation not of the Essence of Contacts), 414 — c. 66, s. 25 (8) (Injunctions and Eeceivers), 522, 761 — c. 66, s. 25 (10) (Custody and Education of Infants), 793 — c. 66, s. 25(11) (Cases of Conflict not Enumerated), 20, 26, n. — c. 66, s. 34 (3) (Business assigned to Chancery Division), 7, 102a, 105, 132, 206, 225, 454, 466, 622, 637, 665, 715, 725, 742 — c. 69, ss. 88, 89, 90, 91 (Inferior Courts), 20 37 &38 Vict. c. 50 (Married Women), 823, 860—6 — c. 57, ss. 1, 8, 9 (Limitation on Recovery of Land, Rent, or Money charged on Land), 539 — c. 57, s. 7 (Barring Mortgagor), 551 — c. 62 (Infants), 132a^l32c — c. 78, s. 4 (Reconveyance of Mortgaged Estate), 590, n. — c. 78, s. 7 (Priority, Tacking), 532 38 & 39 Vict. c. 77, s. 10 (Administration), 472 — c. 77, s. 11 (1) (Choice of Division of Court), 207 — c. 87 (Priority, Tacking), 532 40&41 Vict. c. 34 (Extension of Locke King's Act), 406, 486— 486b, 622 44 &45 Vict. c. 41 (Conveyancing Act, 1881), 853 — 0. 41, s. 4 (Completion of Contract after Death), 406, 411 — c. 41, s. 14 (Porfeiture of Leases), 676 — 0. 41, s. 15 (Obligation of Mortgagee to Transfer instead of Re-conveying), 556a — c. 41, s. 16 (Leave for Mortgagor to inspect Deeds), 526 — u. 41, s. 17 (Restriction on Consolidation of Mort- gages), 554a — u. 41, s. 18 (Leasing Powers of Mortgagor, and of Mortgagee in Possession), 514, 561 — c. 41, ss. 19, 24 (Povrers incident to Estate of Mortgagee), 514, 522, and page 366 {a). — c. 41, s. 25 (Action respecting Mortgage), §40a, and page 366 (a). — 0. 41, ss. 26—9 (Statutory Mortgages), 572o INDEX. 501 STATUTES— emit hiued. 44 & 45 Viet. o. 41, s. 30 (Devolution of Trust and Mortgage Estates on Death), 339a, 406, 513, 527, 570a 585 — 0. 41, s. 36 (Trustees' Eeoeipts), 266a — c. 41, s. 56 (Receipt in Deed, or Indorsed Authority for Payment to Solicitor), 357a, 572b — 0. 41, s. 61 (Beceipt of Survivor of Joint Mort- gagees sufficient), 315 — c, 44 (Solicitors' Remuneration Act, 1881), 157 — u. 44, s. 5 (Mortgage for Costs), 566 45 & 46 Vict. u. 38 (Settled Land Act, 1882), 627 — 0. 38, ss. 6—11 (Leases), 765 — 0. 38, s. 35 (Cutting and Sale of Timber), 319, 767 — c. 38, s. 40 (Trustees' Receipts), 266a — c. 31, s. 51 (Provision against exerc se of Powers void), 676 — c. 38, s. 52 (Provision against Forfeiture), 676 — 0. 38, s. 61 (Married Woman may exercise Powers of Act independently of Husband), 850a — c. 39, s. 3 (Conveyancing Act, 1882, Notice), 190 — c. 39, s. 6 (Disclaimer of Powers by Trustees), 342 — 0. 39, s. 12 (Reconveyance on Mortgage), 556a — c. 75 (Married Women's Property Act, 1882), 575, 824, 827a, 829a, 840, 841, 846, 847, 850, 851, 852, 857b, 893 — c. 75, s. 1 (Married Woman capable of holding Property and contracting as Feme Sole), 822, 823a, 857, 904b — c. 75, s. 2 (Property of Woman Married after Act to be held by her as Feme Sole), 834 — c. 75, s. 3. (Loans by Wife to Husband), 823a — u. 75, s. 4 (Execution of General Power by Will by Married Woman), 857a — c. 75, s. 5 (Property acquired after Act by Woman Married before Act to be held by her as Ferns Sole), 834 — c. 75, s. 6 (Stock, &c., to which Married Woman entitled), 835 — c. 75, s. 7 (Stock, &c., to be transferred, &c., to Married Woman), 836 — c. 75, s. 8 (Investments in Joint Names of Married Women and others), 837 — c. 75, s. 9 (Stock, &c., in Joint Names of Married Women and others), 838 — c. 75, s. 10 (Fraudulent Investments with Money of Husband), 840 — 0. 75, s. 11 (Moneys payable under Policy of Insurance not to form part of Estate of Insured), 843, 844 — c. 75, s. 12 (Remedies of Married Woman for Pro- tection and Security of Separate Property), 822, 823a, 845 — c. 75, s. 13 (Wife's Ante-nuptial Debts and Liabilities), 858 — c. 75, s. 14 (Husband to be Liable for Wife's Debts contracted before Marriage to a certain extent), 866 503 INDEX. STATUTES — continued. 45 & 46 Vict. c. 75, s. 15 (Suits for Ante-nuptial Liabilities), 866 — c. 75, s. 16 (Act of Wife liable to Criminal Pro- ceedings), 903a — 0. 75, s. 17 (Questions between Husband and Wife as to Property to be decided Xn summary way), 842 — c. 75, s. 18 (Married Woman as Executrix or Trustee), 839 — u. 75, s. 19 (Settlements made in fraud of Creditors), 880a — u. 75, s. 20 (Married Woman liable to Parish for Maintenance of Husband), 867 — u. 75, s. 21 (Married Woman liable to Parish for Maintenance of Children), 868 — u. 75, s. 22 (Repeal of 33 & 34 Vict. c. 93 ; 37 & 38 Vict. c. 50), 823 — u. 75, s. 23 (Legal Eepresentative of Married Woman), 868a — c. 75, s. 24 (Interpretation of Terms), 857 — c. 75, s. 25 (Commencement of Act), 823, 827a, 829a 46 & 47 Vict. c. 52, ss. 4, 6 (Bankruptcy Proceedings), 252a 47 & 48 Vict. c. 14 (Married Women's Property Act, 1884, Witness), 903a — c. 18 (Settled Land Incumbrances), 627 — c. 71 (Intestates' Estates Act, 1884),- 285a 49 & 50 Vict. c. 27 (Guardianship of Infants Act, 1886), 904a — c. 27, ss. 2, 3, 4, 6 (Eights of Mother as to Guardianship of her Child, and removal and appointment of Guardian by Court), 794 — c. 27, 3. 5 (Court may make Orders as to Access to and Custody of Infant), 797, 799 — c. 27, s. 9 (Applications to be made to Chancery Division), 793 — 0. 27, s. 52 (Married Women (Maintenance in case of Desertion) Act, 1886), 904 50 & 51 Vict. c. 73, s. 45 (Trust Copyholds of Inheritance not to Descend as Chattels Beal), 339a, 513, 527 51 & 52 Vict. 0. 43 (County Courts Act, 1888), 207, 758 — c. 59, s. 1 (Definition of Trustee), 351a, 352a, 462 — c. 59, s. 8 (Statute of Limitations may be pleaded by Trustees), 268a, 392, 462 — c. 62 (Preferential Debts), 474a 52 Vict. c. 7, s. 13 (Customs and Inland Revenue Act, 1889, Deposit of Copies of Documents), 345 52 & 53 Vict. c. 49 (Arbitration), 441 53 & 54 Vict. 0. 39 (Partnership), 637 et sec[. 54 Vict. c. 3 (Custody of Infants), 794a 54 & 55 Vict. 0. 73 (Charities), 281a, 497 55 & 56 Vict. c. 13 (Conveyancing Act, 1892), 676 56 & 57 Vict. u. 21 (Voluntary Conveyances), 199 — u. 53 (Trustee Act, 1893), 341 et seq. — i;. 63 (Married Women), 853, 857 — i:. 71 (Sale of Goods), 791 57 & 58 Vict. c. 10 (Trustee Act, 1894), 351a — c. 30 (Estate Duty), 221 INDEX. 503 STATUTES— continued. 57 & 58 Viot. u. 46 (Copyholds), 339a, 513 — u. 60 (Merchant Shipping Act), 609 58 & 59 Viot. 0. 25 (Solicitor-Mortgagee's Costs), 566a — c. 39 (Married Women), 904 59 & 60 Vict. 0. 35 (Judicial Trustees Act), 344, 348a, 397 60 & 61 Viot. c. 65 (Land Transfer Act), 367, 379, 898, 399, 470 STIPULATIONS IN CONTRACTS, 414 STOCK, reduction of, 63 SUB-PURCHASE, 431 SURCHARGE AND FALSIFY, liberty to, 458, 459 SURETIES, contribution between, 633 — 5 rights of creditors and sureties, 164, 654 — 8 SURPLUS, right of heir or next of kin or executor to, 285 — 299 T. TACKING, 529—534, 603, 604 TENANT, interpleader by, 741 TERM OP YEARS, , trusts of, 239—243 TESTATORS, agreement to influence, 137 TIMBER, trust as to, 819 TIME, where time is of the essence of a contract, 418 stipulations as to, 414 TITHES AND MODUSES, 667 TITLE, muniments of, 894, 395 want of, 415, 416 buying a pretended, 480 TRADE, contracts or conditions in restraint of, 141 TRUSTS IN GENERAL, definition of, 224 division of, 226 extent of jurisdiction over, 225 504 INDEX. TRUSTS, CONSTRUCTIVE, defined, 322 in respect of repairs or improvements, 323 in favour of creditors, 324 on a covenant or agreement to convey, transfer property, or pay money, 325, 326 vendor's lien for unpaid purchase-money, 827 — 332 of lease, of wMcli a renewal is obtained by a person having a limited interest, 334, 335 on a wrongful conversion or alienation of trust property ,336 — 8 of mortgaged estate, 339, 339a of debt due from executor, 340 TRUSTS, EXPRESS CHARITABLE. See Chabitibs. \ TRUSTS, EXPRESS PRIVATE, defined, 227 mode of declaring, 228 — 230 by what words created, 231 — B precatory trusts, 232, 233a how a devise or bequest may be verbally impressed with a trust, 234 intended trust, though void, excludes donee from taking beneficially, 235 executed and executory, 30, 236, 237 governed by the same rule as legal estates, 238 of terms for years, 239 — 243 created without cesttd que trust's knowledge, 244 what will be enforced, 245 execution of marriage articles, 246 assignments for benefit of creditors, 247 — 252 revocableness of a consignment or remittance, 253 revocableness of a conveyance pf equitable property, or a declaration of trust in favour of a volunteer, 254, 255 effect of a direction or power to raise money out of rents for debts, &o., or of a charge, 256 bar of, 267 performed as to the main intent, 269 where legal and equitable estates have no separate existence, 270 for an alien, 271 TRUSTS, IMPLIED, sometimes called constructive trusts, 321 defined, 282 in a power, 288, 284 where trusts fail or the property is unexhausted, 285 on an absolute gift, with an ineffectual or partial trust, or a void condition, 286 on a conveyance without a consideration, and without a use or trust, 287—290 on a limitation of a particular interest only, 291 — 3 of undisposed-of residue of testator's personalty, 294 of undisposed-of produce of real estate, 295, 296 of undisposed-of part of mixed fund, 297 of undisposed-of part of money directed to be converted or of the produce, 298, 298a failure of objects for conversion, 299, 300 charges, 301—810 INDEX. 505 TRUSTS, IMPLIED— cojiiHHied. on conveyance, assignment, or security in another's name, 311 on purchase or transfer of stock or delivery of money, 312 on limitations which would create a joint tenancy at law, 315 on covenant or trust to purchase lands, 316 on covenant to settle lands, 317 of collateral securities for a debt assigned, 818 of ornamental timber, 319, 319a of wife's mortgaged property, 320 TRUSTS, RESULTING, 285—800, 811—314 TRUSTEES, profits by, 161, 833, 365 gifts to, iei, 365 purchase by, 162, 383, 865 who may be, 341 acceptance of office of, 342 devolution or delegation of trust, 843 equity never wants a trustee, 844 no remuneration allowed, 845 expenses allowed, 345 what care and diligence they are bound to use, 346 — 8 omission to sell, 349 investment, 350 — 4 long terms, 351a of renewable leaseholds may renew, 851a loans by, 352, 352a liabOity for loss by reason of improper investments, 352a omission of one trustee or executor to see that the property is duly secured or applied, 355, 356 losses without want of customary care or diligence, 357 non-investment, 358 non-payment, 858a terminable or reversionary property, 359 time allowed for conversion, 860 investment on mortgage, 861 may not mix the trust money with their own, 362, 363 accountable for interest and gains, 865 rent of testator's leaseholds, 365 responsibility for each other's acts and defaults, 366 distinction between trustees and executors in regard to the effect of joining in receipts, 367, 368 indemnity, 892a, 399 indemnity clause, 869 breach of trust by, 369—381 acquiescence in a breach of trust, 373 debt by breach of trust in a simple contract debt, 874 default by trustee who is a beneficiary, 375 power to bind the estate by a sale, transfer, mortgage, or specific lien, 376— 3R0 judgment against, 378 to support contingent remainders, 888 aid and direction to, 385, 389 safety of, 390—3 possession of muniments of title, 395 removal of, 896 appointment of, 396, 397 S. LL 506 INDEX. TmiSTBES—eontimied. where trustees took the fee, 398 conveyance of legal estate to cestui que trust, 399 settlement of accounts, 400 duty of keeping accounts and rendering information, 400, 401 right of retainer, 402a in bankruptcy or insolvency, 876 — 8, 891 U. USURIOUS TRANSACTIONS, 40, 729 V. VENDOR, misrepresentation or eonoeabnent by, 112 — 121 vendor's lien, 327—332 nature of, and reasons for, 327 where it originally exists, 328 continuance thereof, 329 against whom it exists, 330 — 2 VIGILANTIBUS, non dormientibus mquitas subvenit, 33 VOID AND VOIDABLE CONTRACTS AND INSTRUMENTS. See Fraud. distinction between, as regards confirniation, 146 cancelling, 725 — 738 VOLUNTARY. See Gonsideeation. VOLUNTEER. See Conbidbbation. rights of, 49 when a collateral relation not a, 198 fraud of, 200 revocableness of a conveyance of equitable property, or a declaration of trust in favour of a volunteer, 254 when voluntary deed cancelled, or enforced, 731 — 3 W. WARDS. See Infauts. WASTE, injunction to restrain, 319, 763- by a mortgagor, 559 by a mortgagee, 514 account in cases of, 666 equitable, 319, 319a, 766— 8a WEAK UNDERSTANDING, frauds on persons of, 130 WELSH MORTGAGE, 578 INDEX. 507 WEST INDIA ESTATE, mortgage of, 523 WIPE. See Masbied Women. WILL, defective execution of a will not remedied, 69 mistake or omission in, 100 fraud in regard to, 105 agreements to influence a testator, 137 proceedings to establish wiUs, 752 — 5 THE END. BBADEDBY, AQNEW, Sc CO. LD., PBINTEBS, LONDON AND TONBBIDaE. TELEGRAPHIC ADDRESS^ TELEPHONE— " RHODRONS, LONDON." No. I38S (HOLBORN).' CATALOGUE OF LAW WORKS PTTBUSHED BY ST®Y»NS AND SONS, Ltb. 779 & 120, Chancery Lane, London. (And at 14, Bell Yard, Lincoln's Inn.) [January, 1900 A Catalogue of Modern Law "Works, together with a complete Chronological List of all the English, Irish, and Scotch Reports, an Alphabetical Table of Abbrevia- tions used in reference to Law Reports and Text Books, and an Index of Subjects. Demy Svo. 1900 [12\i pp.), limp binding, post free 6d. Acts of Parliament. — Public and Local Acts from an early date may be had of the Publishers of this Catalogue, who have also on sale the largest collection of Private Acts, relating to Estates, Enclosures, Railways, Roads, ifc, 6(c. ACCOUNT, — Williams' Law of Account.— Being a concise Treatise on the Right and Liability to Account, the taking of Accounts, and Accountants' Charges. By Sydney E. WrLLiAMS, Esq., Author of "LawrelatingtoLegalEepresentatives," &o. DemySvo. 1899. 10s. "A well-arranged book, 'whicli should be very useful to receivers and accountants generally, as -well as to both branches of the legal profession."— Law Journal, Nov. 18, 1899. 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"Full of good sense and just observation. A very complete Manual of the Advocate's art in Trial by Jury."— Soiicitors' Jovrml. " Deserves to be carefully read by the young barrister whose career is yet ^lovebim."— Law Magazine. , , ., , j r, x' AFFILIATION,— Bott's Manual of the Law and Practice in Affiliation Proceedings, with Statutes and Forms, Table of Gesta- tion, Forms of Agreement, &e. By W. Holioway Bott, Solicitor. Demy 12mo. 1894. 6«- AGRICULTURAL LAW,— Dixon,— Ti* "Farm." ANGLO-INDIAN CODES,— Stokes's Anglo-Indian Codes,— By Whitxey Stokes, LL.D. 2 Vols. Demy 8to. 1887-88. 3/. 6s. First and Second Supplements to the above. 1891. Ga. Gd. * * All stmiard Law Works are Icept in Stock, in law calf and other bindings. * A STEVENS AND SONS, LIMITED, ANNUAL COUNTY COURT PRACTICE,— The Annual County Court Practice, 1900. — By His Honour Judge Smylt, Q.C. 2to1s. Demy 8vo. 255. " xne prufesrfon generally have gratefully recogiiized the very great value of this hook. It admirahly fulfils the essential requisites of a" practice book. It is complete without being dis'cursive or of unwieldy bulk j it is accurate and easy of i-efereace, and throughout bears the stamp of having been compiled by a man ■who is tbornup-hlv acquainted with his subject." — Law Times. ANNUAL DIGEST.— Mews'.— Fiife "Digest." ANNUAL LIBRARY (LAWYER'S):— (1) The Annual Practice. — Snow, Buenet, aaid STEmaEE. (2) The Annual Digest. — Mews. [Issued Quiwterly.) (3) The Annual Statutes.— Lelt. (4) The Annual County Court Practice.— Smtlt. I^° Annual Subscriptions. For Complete Series, as above, delivered on the day of publication, net, 21. 6s. Nos. 1, 2, and 3 only, net, 11. 15«. Nos. 2, 3, and 4 only, net, 11. 16s. (Carriage extra, 2s.) Full prospectus forwarded on application^ ANNUAL PRACTICE(THE).—TheAnnual Practice. 1900. Edited by Thomas Snow, Barrister-at-Law ; Chaeles Btjenbt, a Master of the Supreme Court; and E. A. SiBUfOEB, of the Central Office. 2 vols. Bvo. Net 25s. ^g'Dr. Blake Odgers, Q.C, has re-written the Notes to Orders XIX., XX., XXI. and XXV., relating to Pleading, Statement of Claim, Defence and Cowiter-claim, and Proceedings in Lieu of Demurrer. " A book which every practising English lawyer must have." — Law Quarterly. " It is only by the help of this established book of practice that a practitioner can carry on his business." — Law Times, " Every member of the bar, in practice, and every London solicitor, at all events, finds the last edition of the Annual Practice a necessity." — Solicitors' Journal. ANNUAL STATUTES.— Lely.— F«« "Statutes." ARBITRATION.— Mozley-Stark's Duties of an Arbitrator underthe Workmen's Compensation Act, 1897.— With Notes on the Act and Rules, and Appendices containing the Act, a selection from the Workmen's Compensation Boles, 1898, and the Medical Referees' Regulations. ByA.MozLET-SiAEK, Solicitor. Roy. 12mo. 1898. Ss. Russell's Treatise on the Power and Duty of an Arbitrator, and the Law of Submissions and Awards; with an Appendix of Forms, and of the Statutes relating to Arbitration. By Eea^cis BtrssELL. Eighth Edition. By Edwaed James Polloce, Esq., an Official Referee of the Supreme Court of Judicature, and the late Heebeet Russell, Esq., Barrister-at-Law. Royal 8vo. 1900. ARCHITECTS.— n(?« " Civil Engineers." {Nearly ready .) 30s. AVERAGE.— Hopkins' Hand-Book of Average.- Fourth Edition. By Manley Hopkins, Esq. Demy 8vo. 1884. 11. Is. Lowndes' Law of General Average. — ^English and Foreign. Fourth Edition. By Riohaed Lowndes, Average Adjuster. Author, of " The Law of Marine Insurance," &o. Royal 8vo. 1888. 11. 10s. " The most complete store of materials relating to the subject in every par^ ticular." — Law Quarterly Review. AUCTIONEERS.— Hart's Law relatingto Auctioneers.— By Hebee Habt, Esq., LL.D., Barrister-at-Law. Demy 8vo. 1896. 7». 6d. BALLOT,— Fitzgerald's Ballot Act,— With an Introduction. Forming a Guide to the Procedure at Parliamentary and Municipal Elections. Second Edition. By GEEAiiD A. R. Fitzoeeald, Esq., Barrister- at-Law. Foap. 8vo. 1876. 6j_ gaf. BANKING.— Walker's Treatise on Banking Law.— Second Edition! By J. D. Walkee, Esq., Q.C. Demy 8vo. 1886. 15s BANKRUPTCY.— Lawrence's Precedents of Deeds of Arrange- ment between Debtors and their Creditors! including Forms with Introductory Chapters, also the Deeds of Arrangement Acts' 1887 and 1890, with Notes. FourthEd. By H. Aethue Smith, Esq.' Barrister-at-Law. 8vo. 1892. 7j. gi! " Concise, practical, and reliable."— iaw Times. V All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 3' BANKRUPTCY— amtinued. Williams' Law and Practice in Bankruptcy. — Compiisingr the Bankruptcy Acts, 1883 to 1890, the Banltruptoy Rulea and Forms, 1886, 1890, the Debtors Acts, 1869, 1878, the. Bankruptcy (Discharge and Closure) Act, 1887, the Deeds of Airangement Act, 1887, and the Rules thereunder. By the Right Hon. Sir Rolaj. OATHS. — Stringer's Oaths and Affirmations in Great Britain and Ireland; being a Collection of Statutes, Cases, and Forms, with Notes and Practical Directions for the use of Commissioners for Oaths, and of all Courts of Civil Procedure and Offices attached thereto. By Eeancis a. Steinqeb, of the Central Office, Eoyal Courts of Justice, one of the Editors of the "Annual Practice." Second Edition. Crown 8vo. 1893. 4». " Indispensable to all commissioners.'' — Solidtor^ Journal, OTTOMAN CIVIL LAW,— Grigsby's Medjelle, or Ottoman Civil Law/.— Translated into English. By W. E. Geigsbt, LL.D., Esq., Barrister-at-Law. Demy 8vo. 1895. ' 21s. PARISH LAW.— Humphreys' Parish Councils. — The Law relating to Parish Councils, being the Local Government Act, 1894 ; with an Appendix of Statutes, together with an Introduction, Notes, and a Copious Index. Second Edition. By Geoegb Humpheets, Esq., Barrister-at-Law, Author of "The Lawrelating to County Councils," &c. Eoyal 8vo. 1895. 10s. Steer's Parish Law. Being a Digest of the Law relating to the Civil and Ecclesiastical Government of Parishes and the Relief of the Poor. Sixth Edition. By W. H. Macnamaiu, Esq., Assistant Master of the Supreme Court, Kegistrar of the Court constituted under the Benefices Act, 1898. Demy 8vo. 1899. 20s. "Will be of great service both to lawyers and to parochial officers." — Solicitors* Journal. " A most useful book of reference on all matters connected with the parish, both civil and ecclesiastical." — Law Journal. " Kept in touch "with every recent change." — Law Times. PARTNERSHIP.— Pollock's Digest of the Law of Partnership! incorporating the Partnership Act, 1890. Sixth Edition. By Sir Peedeeiok Poli/Ook, Bart., Barrister-at-Law. Author of "Principles of Contract," "The Law of Torts," &c. DemySvo. 1895. is. &d. *' We are confident this book -will be most popular as well as extremely useful." — Law Times* PATENTS. — Edmunds on Patents. — The Law and Practice of Letters Patent for Inventions. By Lewis Edmunds, Q.C. Second Edition. By T. M. Stevens, Esq., Barrieter-at-Law. Roy. 8vo. 1897. li. 12s. " We have nothing but commendation for the book."— SoZ>ci(or»' Journal. " It would be difficult to make it more complete." — Law Times. Edmunds' Patents, Designs and Trade Marks Acts, 1883 to 1888, Consolidated with an Index. Second Edition. By Lewis Edmunds, Q.C., D.Sc, LL.B. Imp.Svo. 1896. JVet2s.6d. Gordon's Monopolies by Patents and the Statutable Remedies available to the Public. By J. W. Goedon, Esq., Barrister-at- Law. Demy 8vo. 1897. 18s. " A treatise which we think must take a unique place in our legal literature." — Law Times. Gordon's Compulsory Licences under the Patents Acts. By J. W. GoBDON, Esq., Barrister-at-Law, Author of " Monopolies by Patent." Demy 8vo. 1899. I5/. Johnson's Patentees' Manual. — A Treatise on the Law and Practice of Patents for Inventions. Sixth Edition. By James John- son, Esq., Barrister-at-Law; and J. Hbnet Johnson, Solicitor and Patent Agent. Demy 8vo. 1890. 10s. Gd. '%• All standard Law Works are kept in Stock, in law ca^ and other bindinfi. 119 & 120, CHAyCEttY LANfi, LONDON, W.O. 2'3 PAT E N TS — continued. Morris's Patents Conveyancing. — Being a CoUeotion of Preoedenta in Conveyancing in relation to Letters Patent for Inventions. With Disaertationa and Copious Notes on the Law and Practice. By EoKBET MoEEis, Esq., Barriater-at-Law. Boyal8vo. 1887. 11. 5s. Thompson's Handbook of Patent Law of all Countries,— By "Wm. P. Thompson. Tenth Edition, -with Addendum. 12mo. 1899. Mt, 2s. 6d. Thompson's Handbook of British Patent Law. Eleventh Edition. 12mo. 1899. Net 6d. PAWNBROKING,— Attenborough's Law of Pawnbroking, with the Pawnbrokers Act, 1872, and the Factors Act, 1889, and Notes thereon. By Chables L. ATTEUBOBOtJOH, Eaq., Barrister- at-Law. Post 8vo. 1897. . 3«. PERSONAL PROPERTY.— Smith.— Ft„* All standard Law Works are kept in Stock, in law calf and other bindings. 30 STEVENS AND SONS, LIMITED, TRADE MARKS.— Sebastian on the Law of Trade Marks and their Registration, and matters oomieoted therewith, including a chapter on Goodwill ; the Patents, Deeigns and Trade Marks Acts, 1883-8, and the Trade Marks Eules and Instructions thereunder ; with Forms and Precedents ; the Merchandize Marks Acts, 1887-94, and other Statutory Enactments ; the United States Statutes, 1870-82, and the Eules and Forms thereunder ; and the Treaty with the United States, 1877. By Lewis Botd Sebastian, Esq., Barrister-at-Law. Fourth Edition. By the Author and Haebt Baied Hemminq, Esq., Barrister-at-Law. Eoyal 8to. 1899. 1?. 10«. " StaJids alone as an authority upon the law of trade-marka and their regis- tration." — Law Jowmal. *' It is rarely we come across a lawbook which embodies the results of years of careful investigation and practical experience in a branch of law, or that can be unhesitatingly appealed to as a standard authority* This is what can be said of Mr. Sebastian's book," — Solicitors* Journal, Sebastian's Digest of Cases of Trade Mark, Trade Name, Trade Secret, Goodwill, &c., decided in the Courts of the United Kingdom, India, the Colonies, and the United States of America. ByLEWisBoTD Sebastian, Esq., Barrister-at-Law. 8vo. 1879. U.ls. " "Will be of very great value to all practitioners who have to advise on matters connected with trade iaBxT£a."^8olicitors' Journal, TRAMWAYS.— Sutton's Tramway Acts of the United Kingdom i with Notes on the Law and Practice, an Introduction, including the Proceedings before the Committees, Decisions of the Referees witlj respect to Locus Standi, and a Summary of the Prinoiplos of Tramway Eating, and an Appendix containing the Standing Orders of Par- liament. Eules of the Board of Trade relating to Tramways, &o. Second Edition. By Hbnet Sutton, assisted by Eobeet A. Ben-' NETT, Barristers-at-Law. Demy 8to. 1883. 15*. TRUSTS AND TRUSTEES.— Ellis' Trustee Act, 1893, including a Guide for Trustees to Investments. By Aktkue Lee Ellis, Esq., Barrister-at-Law. Fifth Edit. Eoy. 12mo. 1894. 6«., " The entire Act is annotated, and the way in which this is done is satis- factory." — Law Journal. *' Mr. Arthur Lee EUis gives many valuable hints to trustees, not only with regard to the interpretation of the measure, but also with regard to invest- ments." Godefroi's Law Relating to Trusts and Trustees. — SeoondEdit. By Henet Godefeoi, of Lincoln's Inn, Esq., Barrister-at-Law. Eoyal 8vo. 1891. 11, Us, ** The second edition of this work which lies before us is a model of what a legal text-book ou^ht to be. It is dear in style and dear in arrangement." — Law Times. VENDORS AND PURCHASERS.— Dart's Vendors and Pur- chasers. — A Treatise on the Law and Practice relating to Vendors and Purchasers of Eeal Estate. By the late J. Henet Daet, Esq., one of the Six Conveyancing Counsel of the High Court of Justice, Chancery Division. Sixth Edition. By William Baebee, Esq., Q.C., EiCHAED BuEDON Haldane, and William Eobeet Sheldon, Esqrs., Barristers-at-Law. 2 vols. Eoyal 8vo. 1888. 31. 15>, '• The extensive changes and numerous improvements which have been intro- duced are the resxilt of assiduous labour, conibined with critical acumen, aoxmd^ knowledge, and practical experience For the copious and excellent index we have nothing but praise. We have been informed that an authority of the highest eminence has pronounced it to be the best in any existmg law book, and we hiunbly concur in ttiat opinion." — Law Quarterly Seview. Turner's Duties of Solicltorto Client as to Sales, Purchases, and Mortgages of Land. — Second Edition. By W. L. Hacon, Esq., Barrister-at-Law. Demy 8yo. 1893. 10«. 6d, " The most skilled in practical conveyancing would gain many useful hints from a perusal of the book, and we recommend it in all confidence." — Law Notes, %* All alanda/rd Law Worlis are kept in Steele, m law calf and other tinditigs. 119 & 120, CHANCERY LANE, LONDON, W.O. 31 VENDORS AND PURCHASERS— continuecl. Webster's Law Relating to Particulars and Conditions of Sale on a Sale of Land,— AVitli Appendix of Forms. Second Edition. By William Fbedebick Websiek, Esq., Barrister-at-Law. Eoyal 8vo. 1896. 25«. " This is the Second Edition of a well arranged and useful book, and the use- fulness will not be impaired by the fact that the authority for each proposition and the reference to such authority are cited in the text itself instead of being relegated to a footnote." — Law Journals Webster's Conditions of Sale under the Land Transfer Acts, 1875 and 1897. Being a Supplement to above. Koyal 8vo. 1899. Net 2s. WAR, DECLARATION OF,— Owen's Declaration of War,— A Survey of the Position of BeUigereuts and Neutrals, witli relative considerations of Shipping and Marine Insurance during War. By DoTjQLAS Owen, Esq., Barrister-at-LaTf. Demy 8vo. 1889. 21s. Owen's Maritime Warfare and Merchant Shlpping,—A Summary of the Eights of Capture at Sea. By DouaiiAS Owen, Esq., Bar- rister-at-Law. Demy 8vo. 1898. Net 2s. WILLS,— Theobald's Concise Treatise on the Law of Wills.-^ Fourth Edition. By H. S. Theobaij), Esq., Barrister-at-Law. Royal 8vo. 1895. 30s. ** Comprehensive though easy to use, and we advise all conveyancers to get a copy of it without loss of time." — Law Journal. ** Of great ability and value. It bears on every page traces of care and sound judgment." — Solicitors^ JoumaU ** The work is, in our opinion, an excellent one, and of very great value, not only as a work of reference, but also for those who can afford to give special time to the study of the subject with which it deals." — Law Student's Journal, Weaver's Precedents of Wills, — A Collection of Concise, Precedents of Wills, with Introduction, Notes, and an Appendix of Statutes. By Chaeles Weavee, B.A. Post 8vo. 1882. 6s. WINDING UP, — Palmer's Company Precedents, — For use in rela- tion to Companies, subject to the Companies Acts, 1862 — 1890. Part II. Windinq-Up Foems ash Peaotioe. Arranged as foUows : — Compulsory Winding-Up, Voluntary Winding-Up, Winding-TJp under Supervision, Arrangements and Compromises, with copious Notes, and an Appendix of Acts and Rules. Eighth Edition. By Feancjis Beaufobt Palmee, assisted by Fbank Evans, Esqrs., Banisters-at-Law. Royal 8vo. 1900. {Nearly ready.) 32s. " Palmer's ' Company Precedents ' is the book par excellence for practitioners. It is needless to recommend Mr. Palmer's book to the profession, for it is already known and appreciated. Weadvise those who have any doubts to con- sult it, and they will be in agreement with us." — Law Journal. ** Simply invaluable, not only to company lawyers, but to everybody con- nected with companies." — Financial News. WORKMEN'S COMPENSATION ACT.— Fide "Employers' Lia- bility." WRECK INQUIRIES,— Murton's Law and Practice relating to Formal Investigations in the United Kingdom, British Posses- sions and before Naval Courts into Shipping Casualties and the Incompetency and Misconduct of Ships' Officers, With an Introduction. By Waltee Mueton, Solicitor to the Board of Trade. Demy 8vo. 1884. IZ. 4s. WRONGS.— Addison, Ball, Pollock, Shearwood,—F«