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Cornell University Library 
 KD 674.S67 1912 
 
 The principles of equity :intended for t 
 
 3 1924 021 656 222 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021656222 
 
THE PRINCIPLES OF EQUITY 
 
THE 
 
 PRINCIPLES OF EQUITY 
 
 INTENDED FOR 
 
 THE USE OF STUDENTS-AND OF 
 PRACTITIONERS 
 
 BY 
 
 EDMUND H. T. ^ELL 
 
 OF THE SUDDLE TEMPLE, BSQUIBB, BA^E!StER-AT-LAW 
 
 ^ivttentf} <S£Siition 
 
 BY 
 
 ARCHIBALD BROWN 
 
 M.A. BDIN. AND OXON., AND B.O.L. OXON. 
 
 t 
 
 OF THE MIDDLE TEMPLE, ESQUIBE, BARRI8TER-AT-LAW 
 
 LONDON 
 
 STEVENS & HAYNES 
 
 BELL YAED, TEMPLE BAE 
 1912 
 
r^ 16 is 
 
( V ) 
 
 PREFACE 
 
 TO THE SIXTEENTH EDITION. 
 
 This Sixteenth Edition of "Snell's Equity" is 
 the thirteenth edition of that work which has 
 been pubHshed since 1875, when law and equity 
 were for the first time fused effectively under 
 one and the same juridical administration; and it 
 was my chief duty as Editor, in 1875, to suggest, 
 how the fusion would operate as regards the 
 different subject-matters comprised in the Book; 
 and it has been my endeavour, continuously in 
 all the twelve successive editions which I have 
 edited since 1875, to further show (by state- 
 ment and illustration), how the fusion was 
 operating and has operated. 
 
 The present edition does not materially differ 
 from its predecessors, — excepting that it incor- 
 porates, of course, all the new relevant decisions 
 and also all the new relevant statutes since the 
 year 1907. 
 
VI PREFACE TO THE SIXTEENTH EDITION. 
 
 I have studied to effect, where it was possible 
 to do so, various simplifications in my exposition 
 of "The Principles"; and I have also effected 
 certain condensations, where condensation was 
 consistent with completeness. But it would 
 have been an ill service to every one (the 
 student included), if I had sacrificed a real 
 completeness to a spurious simplicity. 
 
 A. BROWN. 
 
 3, Stone Buildings, 
 LiNCOUsr's Inw, 
 
 December, 1911. 
 
( vii ) 
 
 CONTENTS. 
 
 TUB PRINCIPLES OF EQUITY. 
 
 PART I.— INTRODUCTORY (pp. 1—19). 
 
 CHAP. PAGES 
 
 I. THE J0EI8DICTION IN EQUITY 1^-4 
 
 n. THE MAXIMS OF EQUITY 5 — 19 
 
 PART II.— THE ORIGINALLY EXCLUSIVE 
 JURISDICTION (pp. 20—387). 
 
 I. TEUSTS GENERALLY 20 — 23 
 
 n. BXPEESS PRIVATE TRUSTS 24 — 66 
 
 (A) TRUSTS EXECUTED AND EXECUTORY 24 — 26 
 
 (B) VOLUNTARY TRUSTS AND TRUSTS FOR VALUE 26 — 31 
 
 (C) FRAUDULENT TRUSTS 31 42 
 
 (1) Under 13 Bliz. u. 5 31—33 
 
 (2) Under 27 Bliz. o. 4 33—38 
 
 (3) Under BiUs of Sale Acts, 1878, 1882 . . . 38—39 
 
 (4) Under Bankruptcy Act, 1883 39—42 
 
 (D) TRUSTS IN FAVOUR OF CREDITORS 43 45 
 
 (E) EQUITABLE ASSIGNKENTS 46 — 57 
 
 (F) TRUSTS, CREATION OF 58 — 59 
 
 (G) SECRET TRUSTS 59 — 60 
 
 (H) POWERS IN THE NATURE OF TRUSTS 60 — 61 
 
 (K) LIABILITY OF PURCHASERS FOR PURCHASE-MONEY 62 — 66 
 
 ni. EXPRESS PUBLIC [OR CHARITABLE] TRUSTS 67 — 77 
 
 IV. IMPLIED AND RESULTING TRUSTS 78 — 86 
 
 V. CONSTRUCTIVE TRUSTS 87—96 
 
Vlll CONTENTS. 
 
 CHAP. fAOE* 
 
 71. TRUSTEES ^'^ ■'■^^ 
 
 VII. DONATIONES MORTIS OAUSA 143 146 
 
 VIII. LEGACIES 147 — 156 
 
 IX. CONVERSION 157 — 165 
 
 X. RECONVERSION 166 — 169 
 
 XI. ELECTION 170 — 179 
 
 XII. PERFORMANCE 180 — 183 
 
 XIII. SATISFACTION 184 — 191 
 
 XIV. ADMINISTRATION OF ASSETS 192 — 226 
 
 XV. MARSHALLING OF ASSETS 227 — 234 
 
 XVI. MORTGAGES, LEGAL 235 — 293 
 
 XVII. MORTGAGES, EQUITABLE 294 — 299 
 
 XVIII. PLEDGES AND MORTGAGES OF CHATTELS 300 — 310 
 
 SECT. I. — PLEDGES AND MORTGAGES, GENERALLY 300—305 
 
 SECT. II. — ^BILLS OF SALE OF CHATTELS, GENERALLY ... 305 — 309 
 
 SECT. III. — ^MORTGAGES OP BRITISH VESSELS 309 — 310 
 
 XIX. LIENS 311 — 318 
 
 XX. PENALTIES AND FORFEITURES 319 — 326 
 
 SECT. I. — PENALTIES, RELIEF FROM 319 — 322 
 
 SECT. H. — FORFEITURES, RELIEF FROM 322 — 326 
 
 XXI. MARRIED WOMEN 327 — 372 
 
 SECT. I. SEPARATE ESTATE 328 
 
 SUB-SECT. I. — APART FROM LEGISLATION 328 — 343 
 
 SUB-SECT. II. — UNDER RECENT LEGISLATION 343 — 356 
 
 SECT. n. — PIN-MONEY AND PARAPHERNALIA 357 — 359 
 
 SECT. III. — EQUITY TO A SETTLEMENT, AND EIGHT OF 
 
 SURVIVORSHIP 359 — 371 
 
 SECT. IV. — FRAUDS ON MARITAL RIGHTS 371 — 372 
 
 XXII. INFANTS 373 — 380 
 
 XXm. LUNATICS, IDIOTS, AND PERSONS OF UNSOUND MIND ... 381 — 387 
 
 PART III.— THE ORIGINALLY CONCURRENT 
 JURISDICTION (pp. 388—541). 
 
 I. ACCIDENT 389—395 
 
 n. MISTAKE 396 — 405 
 
 III. ACTUAL FRAUD 406 418 
 
 IV. OONSTEUCTIVE FRAUD 419 434 
 
CONTENTS. IX 
 
 OHAP. PAGES 
 
 V. snEETYSHiP 435 — 447 
 
 W. PAKTNEESHIP 448 — 460 
 
 VII. ACCOUNT 461 — 464 
 
 Vni. set-off; and APPKOPRIATION of payments — AND OF 
 
 SECURITIES 465 — 473 
 
 K. SPECIFIC PBEFOEMANCE 474 — 509 
 
 X. INJUNCTION 510 — 633 
 
 XI. PARTITION 534 — 537 
 
 Xn. INTERPLEADER 538 — 541 
 
 PAET IV.— THE [now obsolete] AUXILIARY 
 JURISDICTION (pp. 542—552). 
 
 1. DISCOVERY 543 
 
 la. perpetuation of testimony, — AND EVIDENCE DE BENE 
 
 ESSE 544 — 546 
 
 2. BILLS "quia timet," — AND BILLS OF PEACE 546 — 547 
 
 3. cancelling and delivery up op documents .547 — 548 
 
 4. bills to establish wills 549 — 551 
 
 5. "nb exeat regno" 551 — 552 
 
 INDEX 553 
 
( xi ) 
 
 INDEX TO CASES CITED. 
 
 Aaron's Eeefs v. Twiss, 413. 
 Aas V. Benham, 109. 
 Abbot, Ex parte, 330. 
 Abergavenny's (Lord) Case, 327. 
 Abrahall v. Bubb, 518. 
 Abrahams v. Abrahams, 151. 
 Acason v. Greenwood, 339. 
 Aokerman v. Lockhart, 315. 
 Ackroyd v. Smithson, 163. 
 Aoland v. Gaisford, 608. 
 Acton V. Woodgate, 43. 
 Adams v. Angell, 243. 
 
 — V. Wears, 493. 
 
 Adams and Kensington Vestry, 
 
 In re, 161. 
 Adams and Perry, Se, 64. 
 Adoook V. Evans, 468. 
 Adderley v. Dixon, 478. 
 Adney v. Field, 392. 
 Adsetts V. Hives, 297. 
 Africa (Bank) v. Cohen, 338. 
 Agar V. Fairfax, 534, 535. 
 Agra & Masterman's Bank, Se, 
 
 473. 
 Agra Bank v. Barry, 263, 266, 
 
 268. 
 Aird's Estate, In re, 404. 
 Akerman v. Akerman, 133. 
 Aldin V. Latimer, 521. 
 Aldrioh v. Cooper, 227, 228. 
 Aldridge v. Aldridge, 455. 
 Alexander v. McCullough, 369. 
 Alexandra Pal. Co., In re, 110. 
 Alexander's Case, 48. 
 Aleyn v. Belohier, 430. 
 AUoard v. Walker, 182, 344, 365, 
 
 403. 
 AUday's Contract, In re, 500. 
 Allen «. Anthony, 270. 
 
 — V. Longstaffe, 196. 
 
 — V. M'Pherson, 403. 
 AUen & DriscoU, In re, 501. 
 Allen (Elizabeth), In re, 350. 
 Allen (Samuel), In re, 10. 
 
 AUhusen v. Whittell, 152. 
 AUison «. Frisby, 249, 446. 
 Ames V. Taylor, 108. 
 Anderson, In re, 50. 
 
 — V. Abbott, 178. 
 
 — V. Butler's Wharf, 254. 
 
 — V. Cooper, 112. 
 Andrew v. Aitken, 486. 
 Andrews, Ex parte, 458. 
 Andrews «. Andrews, 144, 145. 
 
 — «. Hulse, 325. 
 
 — V. Mitchell, 525. 
 
 — V. Mockford, 406, 413. 
 
 — V. Ramsay, 109. 
 Angel V. Jay, 401. 
 Angell V. Angell, 543. 
 Anglo-Italian Bank v. Davies, 
 
 200. 
 Angus V. Clifford, 406, 408. 
 Annaly v. Agar Ellis, 250. 
 Anon. <Cro. Eliz.), 469. 
 Anthony v. Anthony, 214, 215. 
 Antrobus v. Smith, 28. 
 ApoUinaris Trade Mark, In re, 
 
 532. 
 Apthorpe v. Apthorpe, 55. 
 Arbib & Class's Contract, 507. 
 Armiger i). Clarke, 477. 
 Armitage v. Garnett, 154. 
 Arnold «. Arnold, 489. 
 
 —y. Smith, 126. 
 Artisans Land Corp., In re, 211, 
 Ascherson's Case, 437. 
 Ashburner v. Sewell, 607, 508. 
 Ashbury Co. d. Eiche, 236. 
 Ashley v. Ashley, 210. 
 Ashton V. Blacfcshaw, 39, 306. 
 
 — V. Eoss, 207. 
 Ashworth v. Lord, 260. 
 
 — V. Munn, 76. 
 Askew V. Woodhead, 124. 
 Astbury v. Astbury, 225. 
 Astwood V. Cobbold, 261, 287. 
 Atcherley «. Du Moulin, 182. 
 
INDEX TO CASES CITED. 
 
 Atcheson v. Atcheson, 369. 
 Atkins V. Farr, 388. 
 Atkinson, In re, 125, 198. 
 Atkinson v. Bradford Equitable, 
 249. 
 
 — V. Powell, 207. 
 Att.-Gen. v. Ailesbury, 167, 385. 
 
 — V. Albany Hotel Co., 526. 
 
 — V. Anderson, 84. 
 
 — V. Ashborne Eesreation, 320. 
 
 — V. Birmingham, 522. 
 
 — V. Birniinjham Drainage, 
 
 523. 
 
 — V. Brighton Stores, 519. 
 
 — V. Christ's Hospital, 74. 
 
 — V. Davey, 74. 
 
 — V. De Winton, 109. 
 
 — V. Eyres, 107. 
 
 — V. Gascoyne, 73. 
 
 — V. Grand Junction Canal, 15, 
 
 517, 523. 
 
 — v. Great Eastern Ry. Co., 
 
 517. 
 
 — V. Hanwell U. D. C, 517. 
 
 — V. Herrick, 72. 
 
 — V. HoKord, 162. 
 
 — V. Hubbuck, 162. 
 
 — V. Ironmongers' Co., 71. 
 
 — V. Jacobs Sirith, 38. 
 
 — v. Je&evjs, 85. 
 
 — V. Johnson, 162. 
 
 — V. Leonard, 192, 193. 
 
 — V. Lucas, 67. 
 
 — V. Marlborough (Duke), 518. 
 
 — V. Matthews, 23. 
 
 — V. Mersey E. C, 517. 
 
 — V. Metropolitan Electric 
 
 Supply, 517. 
 
 — V. Kichol, 521. 
 
 — V. Pontypridd U. D. C, 517. 
 
 — V. Poulden, 389. 
 
 — V. Euper, 67. 
 
 — V. Scott, 521. 
 
 — V. Sheffield Gas, 523. 
 
 — V. Shrewsbury Bridge Com- 
 
 pany, 517. 
 
 — V. Sibthorpe, 391. 
 
 — V. St. John's Hospital, 97. 
 
 — V. Stepney, 68. 
 
 — V. Tod-Heatloy, 521. 
 
 — V. Tonna, 72. 
 
 — V. Trin. Coll., Caml)., 72. 
 
 — V. Worcester, 69. 
 Attree, In re, 201. 
 Attwood V. Small, 407. 
 Austin, In re, 57. 
 
 Austria (Emperor) v. Day, 533. 
 Aveliug V. Knipe, 86. 
 Avis V. Newman, 519. 
 
 Ayerst v. Jenkins, 34. 
 Aylesford v. G. W. Ey. Co., 336. 
 Aylett's Case, 501. 
 Ayres (Harriet), In re, 352. 
 
 B., A. S., In re, 386. 
 B., G. E., In re, 467. 
 B.-W. & W., In re, 505. 
 Babcook v. Lawson, 302. 
 Bacon v. Jones, 526. 
 Baddeley v. Baddeley, 29, 329. 
 Badische v. Levenstein, 525. 
 Bagel V. Miller, 457. 
 Baggs (Martha), Re, 386. 
 Bagnall v. Carlton, 409. 
 
 — V. Villar, 252. 
 Bagot V. Chapman, 66. 
 
 Bahin v. Hughes, 115, 116, 440. 
 Baile v. Baile, 313. 
 Bailey v. Barnes, 272. 
 
 — V. Bishop, 149. 
 
 — V. Finch, 467. 
 
 — V. Sweeting, 36. 
 
 Baily v. British Equitable, 318. 
 Bain v. FothergiU, 480. 
 Bainbrigge v. Browne, 422. 
 Baines v. Chadwick, 231. 
 Baird v. Wells, 525. 
 Bake v. French, 315, 424, 466. 
 Baker v. Ambrose, 306. 
 
 — V. Baker, 150. 
 
 — V. Farmer, 148. 
 
 — V. Gray, 280. 
 
 — V. Hall, 366. 
 
 — V. Hedgcoock, 420. 
 Baldock v. Green, 123, 199. 
 Baldwin v. Baldwin, 368. 
 Balfour v. Grace, 436. 
 
 — V. Welland, 462. 
 Ball V. Eay, 521. 
 BalPs Case, 369. 
 Ballard v. Strutt, 504. 
 
 — V. Tomlinson, 522. 
 
 — V. Way, 489. 
 Balls V. Strutt, 99. 
 Balmain v. Shore, 86, 456. 
 Bank of Africa v. Cohen, 338. 
 Bank of Montreal v. Stuart, 422. 
 Bankes, In re, 339. 
 
 BankeS v. Jarvis, 466. 
 Banks v. Busbridge, 213. 
 
 — V. Small, 405. 
 Banner v. Berridge, 463. 
 
 — V. Johnstone, 473. 
 Barber, Re, 306. 
 
INDEX TO CASES CITED. 
 
 XIU 
 
 Barclay v. Andrew, 134. 
 
 — V. Maskelyne, 68. 
 
 — V. Pearson, 225, S48. 
 Baring v. Nash, 535. 
 Barker's Case, 288. 
 Barlow v. Yorke, 118. 
 Barnard v. Ford, 339. 
 Barned's Banking Co., In re, 472. 
 Barnes v. Gljnton, 221. 
 
 — V. Toye, 416. 
 
 — V. Wood, 490. 
 
 — V. Youngs, 449. 
 Barnesby v. Powel, 7. 
 Barnett, In re, 551., 
 Barney v. Barney, 130. 
 Barnhart v. Greensliielda, 266. 
 Barr v. Gib3on, 333. 
 Barrack v. M'Culloch, 332. 
 Barrell v. Sabine, 240. 
 Barrington v. Tristram, 152. 
 Barron v. Willis, 423. 
 Barrow v. Barrow, 178, 403, 408. 
 
 — V. Greenough, 7. 
 
 — V. Isaacs, 324. 
 
 — V. Wadkiu, 84. 
 Barrow-in-Furness & Eawlinson, 
 
 In re, 64. 
 Barrow Hematite Case, 414. 
 Barrow's Case, 266. 
 Barry v. Cro:skey, 406. 
 Bartholomew v. Menzies, 144. 
 Bartlett v. Charles, 54, 211. 
 
 — V. Ford's' Hotel, 449. 
 
 — V. Franklin, 246. 
 
 — V. GiUard, 185. 
 
 — V. Mayfair Property, 237. 
 
 — V. Pickersgill, 79. 
 
 — V. Bees, 244. 
 Bartley v. Thomas, 210. 
 Barton v. Bank of New South 
 
 Wales, 16. 
 Bar wick v. English Joint Stock 
 
 Bank, 407. 
 Bassett, Re, 315. 
 Bassett v. Allen, 250. 
 
 — V. Nos worthy, 12. 
 Batohelor v. Middleton, 441. 
 Bateman v. Faber, 136, 179. 
 
 — V. Hunt, 48, 49, 258. 
 Bates V. Dandy, 365. 
 Bateson v. Gosling, 444. 
 Bath, Ex parte, 258. 
 
 — V. Standard Land Co., 110. 
 Bath (Earl) v. Sherwin, 547. 
 Batstone v. Salter, 82. 
 
 Batt V. Dunnett, 531. 
 Batten v. Dartmouth, 279. 
 
 — V. Gedye, 542. 
 Battison v. Hobson, 91, 264. 
 
 Baud V. Fardell, 120. 
 Bawden v. Creiswell, 233. 
 
 — V. London Assurance, 271. 
 Baylis, In re, 316. 
 
 Baynton v. Morgan, 442. 
 Bayspoole v. Collins, 36. 
 Beale v. Kyte, 402. 
 
 — V. Symonds, 84. 
 Beall V. Smith, 381, 383. 
 Beardsley v. Beardsley, 550. 
 Beauohamp, Ex parte, 417. 
 
 — In re, 336, 351. 
 Beaumont v. Boultbee, 461. 
 
 — u. Ewbank, 145. 
 
 — y. Kaye, 351. 
 Beavan v. Lord Oxford, 34. 
 Beck V. Pierce, 335, 337. 
 Beckett v. Tower Assets Co., 308. 
 Beckford v. Beokford, 80. 
 
 — V. Wade, 9, 247. 
 Bedford v. British Museum, 513. 
 Beiiugiield & Herring, In re, 65. 
 Beeley v. Sidebottom, 77. 
 Beeston v. Booth, 149. 
 Beetham, In re, 294. 
 
 Beevor v. Luck, 242. 
 Behrend's Trust, In re, 497. 
 Behrens v. Eichards, 520. 
 Belauey v. Ffrench, 315. 
 Belcher u. Williims, 537. 
 Belchier v. Eenforth, 273. 
 Belfield v. Bourne, 454. 
 Bell u. Balls, 480, 493. 
 
 — V. Stocker, 195, 337. 
 Bellamy, In re, 65, 327. 
 Bellamy u. Davey, 304, 311. 
 Bellasis v. Compton, 22. 
 Benbow v. Townsend, 23. 
 Benoe v. Shearman, 50. 
 Benham v. Keane, 200. 
 Beningfield v. Baxter, 111, 147. 
 Benuet v. Wade, 408. 
 Bennett, In re, 497. 
 Bennett v. Bennett, 81, 108. 
 
 — V. Cooper, 46. 
 
 — V. Stone, 503, 504. 
 
 — V. White, 465, 467. 
 Benson v. Benson, 166. 
 Bentinok v. Bentinck, 193, 194. 
 
 — V. London Joint Stock Bank, 
 55. 
 
 Benyon v. Benyon, 186. 
 Bergmann v. M'Millan, 461. 
 Berkhamsted Grammar School 
 
 Case, 69. 
 Berridge v. Berridge, 445. 
 Berry v. Gibbons, 199, 209. 
 Bertie v. Abingdon (Lord), 258. 
 Besant, In re, 375. 
 
INDEX TO CASES CITED. 
 
 Besant v. Wood, 474. 
 Best V. liamond, 507. 
 Betjemann v. Betjemann, 455. 
 Bettou's Charity, In re, 69. 
 Betty, In re, 519. 
 Bevan v. Habgood, 92. 
 
 — V. Webb, 91. 
 Beverley v. Att.-Gen., 72. 
 Beyfus & Masters' Contract, In 
 
 re, 489. 
 Biekerton v. Walker, 242, 258. 
 Biddulph V. Peel, 187. 
 Biggs V. Hoddinott, 239. 
 Bignell v. Chapman, 107. 
 Bignold V. Bignold, 151, 1S2. 
 Bill V. Cureton, 30. 
 Bills V. Tatham, 30. 
 Bingham v. Bingham, 399. 
 Birch V. Birch, 55, 550. 
 
 — V. EUames, 268. 
 Birohall v. Ashton, 99. 
 Bird, In re, 216. 
 Birkin v. Smith, 637. 
 Birmingham Society v. Lane, 
 
 356. 
 Birnam Wood, The, 267. 
 Biron v. Mount, 44. 
 Birt V. Birt, 221. 
 
 — V. Burt, 132. 
 Biscoe V. Banbury, 268. 
 Bisgood 0. Henderson's Trans- 
 vaal, 414. 
 
 Bishop V. Church, 467. 
 Bias V. Biss, 92. 
 Blachford v. Worsley, 152. 
 Blackburn Society v. Cunlifie, 
 
 129. 
 Blaoket u. Bates, 475. 
 Blaoklow V. Laws, 122. 
 Blackmore v. White, 326. 
 Bladon, In re, 289. 
 Blagrave v. Routh, 137. 
 Blaiberg v. Keeves, 486. 
 Blaiklock v. Grindle, 174. 
 Blake v. Gale, 9, 196, 212, 217. 
 Blakemore, Mx parte, 207. 
 Blaker v. Herts Waterworks, 283. 
 Blakey v. Latham, 315. 
 Bland V. Dawes, 340. 
 
 — V. Perkins, 182. 
 Blandy v. Widmore, 183. 
 Blockley v. Blockley, 190. 
 Blogg V. Johnson, 152. 
 Blood V. Blood, 344. 
 Bloomer v. Spittle, 402. 
 Bloxam v. Clutterbuok, 182. 
 Bloye, Re, 140, 425. 
 
 Blue V. Marshall, 104. 
 Blyth V. Fladgate, 130. 
 
 BIythe, Ex parte, 458. 
 Boddington v. Clairat, 404, 
 Bodega Co. Case, 318. 
 Boden v. Boden, 150. 
 
 — V. Hensby, 315. 
 Boehm v. Goodall, 128. 
 
 Bold V. Hutchinson, 402, 484. 
 Boldero, In re, 472. 
 Boles's Case, 110. 
 Bolingbroke v. Ker, 351. 
 Bolitho V. Gidley, 342. 
 Bolton V. Buckenham, 442. 
 
 — V. Curre, 134, 342. 
 
 — V. Salmon, 442. 
 Bompas v. King, 257. 
 Bond V. Hopkins, 481. 
 Bonner v. Bonner, 233. 
 Bonnett v. Sadler, 492. 
 Bonser v. Cox, 442. 
 Booth V. Eobinson, 172. 
 Bootle 1). Blundell, 199. 
 Borland's Trustee v. Steel, 456. 
 Bos V. Helsham, 490. 
 Boswell V. Coaks, 410. 
 Boucas V. Cooke, 529. 
 Boughton, In re, 315. 
 Boughton V. Boughton, 175. 
 Bourgoise, In re, 374. 
 Bourke v. Eobinson, 246. 
 Bourne v. Bourne, 159, 455. 
 
 — V. Swan & Edgar, 530. 
 Boustead v. Cooper, 123. 
 BovUl V. Bndle, 246. 
 Bovril Trade Mark, Re, 531. 
 Bowdens v. Amalgamated Pic- 
 torials, 527. 
 
 Bowen v. Anderson, 522. 
 
 — V. Phillips, 139. 
 Bowerman, In re, 215. 
 Bowlby V. Bowlby, 155. 
 Bowles V. Hyatt, 85, 196, 217- 
 Bowser v. Colby, 323. 
 BoxaU D. BoxaU, 361. 
 
 Boyd V. Allen, 534. 
 Boyer v. Maclean, 341. 
 Boyes v. Carritt, 60. 
 Boyse v. Rossborough, 549. 
 Brace v. Duchess of Marlborough, 
 
 273. 
 Bracebridge v. Cook, 359. 
 Braddyl v. Ball, 202. 
 Bradford v. Romney, 403. 
 
 — V. Young, 551. 
 
 Bradford Bank w. Briggs, 245, 
 274. 
 
 — V. Cure, 455. 
 Bradley, Re, 98. 
 Bradley v. Riches, 263. 
 Bradshaw v. Bradshaw, 345, 379, 
 
INDEX TO CASES CITED. 
 
 XV 
 
 Bradahaw v. Huish, 185. 
 
 — V. Widdrington, 250. 
 Braithwaite v. Att.-Gen., 71. 
 Brandao v. Barnett, 311. 
 Brandon, Re, 385. 
 Brandon v. Hughea, 343. 
 
 — V. Robinson, 337. 
 Brandreth v. Colvin, 123. 
 Bray v. Stevens, 233. 
 
 — V. Tofield, 194. 
 Bremer's Patent, In re, 526. 
 Brennan v. Bolton, 482. 
 Brentwood Brick Co., Re, 88. 
 Brereton v. Edwards, 52. 
 BretteU v. Holland, 216, 457. 
 Brewer v. Brown, 492, 506. 
 Brioe v. Carroll, 546. 
 Bridger v. Deane, 135. 
 Bridges v. PhUlips, 214. 
 
 — V. Whitehead, 323. 
 Briggs V. Chamberlain, 167. 
 
 — V. Jones, 278. 
 
 — V. Penny, 59. 
 
 — V. Wilson, 197. 
 Bright V. Campbell, 256. 
 Brindley, In re, 45. 
 Brioklow v. Singleton, 118. 
 Briscoe v. Briscoe, 313. 
 Bristol V. Hungerford, 273. 
 Bristow V. Warde, 171. 
 Britain v. Rossiter, 483. 
 British Empire Shipping Co. v. 
 
 Somes, 543. 
 British Equitable v. Baily, 256. 
 British Homes v. Paterson, 458. 
 British Mutual v. Smart, 199. 
 Brittin v. Partridge, 61. 
 Broad v. Munton, 492, 507. 
 Broadbent v. Barrow, 71, 72, 76, 
 214. 
 
 — V. Lyons, 232. 
 Brocklesby's Case, 299. 
 Broder v. Saillard, 621. 
 Brogden, Re, 138. 
 Bromley v. Brunton, 145. 
 Brompton Hospital v. Lewis, 77. 
 Brond v. Broomhall, 309. 
 Brook V. Badley, 52. 
 
 — V. Hertford, 535. 
 Brooke v. Brooke, 127, 307. 
 
 — V. MoBtyn, 398, 399. 
 
 — V. Pearson, 40. 
 Brookes v. Cohen, 430. 
 Brookman, In re, 315. 
 Brooks V. Muckleston, 15, 262. 
 Broome v. Monok, 159. 
 
 — V. Speak, 413. 
 
 Brown v. Brown (L. R. 2 Bq.), 
 178. 
 
 Brown v. Brown (1893, 2 Ch.), 
 249. 
 
 — V. Burdett, 194. 
 
 — V. Cole, 245. 
 
 — V. Davies, 54. 
 
 — V. Dimbleby, 343, 418. 
 
 — V. Dunstable Corpn., 523. 
 
 — V. Gellatly, 123. 
 
 — V. Higgs, 61, 392. 
 
 — V. Metropolitan Society, 262, 
 
 290. 
 
 — V. Peto, 253. 
 
 — V. Raindle, 16. 
 
 — V. Sewell, 261. 
 
 — V. Smith, 379. 
 
 Brown & Gregory, In re, 466. 
 
 Brown Jansou & Co. v. Hutchi- 
 son, 456. 
 
 Brown Shipley & Co. v. Kough, 
 473. 
 
 Browne v. Savage, 51. 
 
 Browne's Policy, In re, 355. 
 
 Bruce, In re, 468. 
 
 Bruce v. Bruce, 391. 
 
 Brunton v. Electrical Corp. 275. 
 
 Bruty V. Maokay, 71. 
 
 Bryants. Bull, 241. 
 
 — V. Hickley, 354. 
 
 B. S. A. Co. V. De Beers, 239. 
 Buchart v. Dresser, 465. 
 Buck V. Robson, 193. 
 Buokland v. Bucklaud, 355. 
 
 — V. Papillon, 161. 
 
 — V. Pocknell, 88. 
 
 Buckle V. Mitchell, 12, 266,- 479. 
 Bugden v. Bignold, 282. 
 Buggins V. Yates, 58. 
 Bulkeley v. Stephens, 156. 
 Bull! Coal Co. «. Osborne, 9. 
 Bulbuan v. Wynter, 369. 
 BuUpin V. Clarke, 334. 
 Bulmer v. Hunter, 37. 
 Bulteel V. Lawdeshayne, 92, 104. 
 Burchell v. Clarke, 396. 
 Burdett, In re, 306. 
 Burdiok v. Garriok, 111, 134, 461. 
 Burden v. Barkus, 452, 455, 456. 
 Burgess v. Booth, 163. 
 
 — V. Burgess, 532. 
 
 — V. Vinnicome, 107. 
 
 — V. Wheate, 84. 
 Burgis V. Constantine, 299. 
 Burke t). Green, 56. 
 Burland v. Earle, 409. 
 Burn V. Carvalho, 49. 
 Buruaby's Case, 16. 
 Burnell v. Burnell, 536, 537, 
 Burrell v. Egremont, 241. 
 
 — V. Smith, 290. 
 
XVI 
 
 INDEX TO CASES CITED. 
 
 Burrough v. Philcox, 61. 
 Burroughes v. Brown, 505. 
 Barrows v. Walls, 137. 
 BursiU V. Tanner, 336. 
 Burt V. Bull, 128. 
 Burton's Trust, In re, 154. 
 Butcher v. Kemp, 176. 
 Butcher's Case, 71. 
 Bute (Marquis) v. James, 544. 
 
 — V. Ryder, 225. 
 Butler V. Butler, 116, 348. 
 
 — V. Rice, 243. 
 Butterworth, In re, 33. 
 Buxton I/. Lister, 448, 478. 
 Bygrave v. Metropolitan Board, 
 
 503. 
 Byrne's Case, 82. 
 Byrne v. Eeid, 450. 
 
 Caballeeo v. Heuty, 270. 
 
 Cackett v. Keswick, 413. 
 
 Caddiok v. Cooke, 281. 
 
 Cadogan v. Kennet, 320. 
 
 Caffirey v. Danby, 103. 
 
 Cage V. Acton, 183. 
 
 Cahill V. Cahill, 474. 
 
 Cain V. Moon, 143. 
 
 Caird v. Sime, 628. 
 
 Calcott & Elvin, Re, 264, 498. 
 
 Caledonia Springs Case, 531. 
 
 Calham v. Smith, 185. 
 
 Calver v. Laxton, 220. 
 
 Calvert v. Thomas, 307. 
 
 Camden (Marquis) v. Murray, 
 
 376. 
 Cameron & Wells, In re, 38. 
 Camp V. Coe, 85. 
 Campbell v. Campbell, 220. 
 
 — v. French, 404. 
 
 — V. Holyland, 291. 
 
 — V. Scott, 527. 
 Campbell-Davya v. Lloyd, 619. 
 Campion v. Cotton, 37, 358. 
 Canada Bank v. Bank of Hamil- 
 ton, 400, 517. 
 
 Capel V. Powell, 361. 
 Capell V. Winter, 10, 270. 
 ■Capital and Counties Bank v. 
 
 Rhodes, 274. 
 Capon's Trusts, In re, 433. 
 Capper's Case, 418. 
 Carlish v. Salt, 410. 
 Carpenter v. Collins, 252. 
 Carr v. Anderson, 225. 
 Carriok v. Miller, 326. 
 Carritt v. Bradley, 239. 
 ■Carr's Trust, Re, 362. 
 
 Carter v. Andrew, 83. 
 
 — V. Carter, 11, 131. 
 
 — V. Maclaren, 430. 
 
 — V. Wake, 301. 
 
 Carter & Kenderdine, In re, 35, 
 
 40. 
 Cartwright v. Cartwright, 474. 
 Cams- Wilson & Greene, In re, 
 
 495. 
 Carver v. Richards, 431. 
 Cary and Lott, Re, 95. 
 Casborne v. Scarf e, 240. 
 Cash Ltd. o. Cash, 532. 
 Cass V. Rudel, 393. 
 Castellan v. Hobson, 421. 
 Castle V. Gillett, 123. 
 
 — V. Warland, 103. 
 
 — V. Wilkinson, 490. 
 Cater's Trusts, In re, 137. 
 Cathcart, Ex parte, 424. 
 
 ' Cathcart, In re, 382. 
 Cato «. Thompson, 499. 
 Cator V. Cooley, 263. 
 Catt V. Tourle, 512. 
 Cattley v. West, 116. 
 Cavan v. Pulteney, 177. 
 Cavendish, Ex parte, 51. 
 Cellular Clothing v. Maxton, 631. 
 Central Ontario Railway, The, 
 
 283. 
 Ceylon Case, The, 634. 
 Chadwick v. Grange, 159. 
 
 — V. Maden, 485. 
 Challinor v. Sykes, 158. 
 Chamberlain v. Brockett, 73. 
 Chamberlain's Wharf u. Smith, 
 
 525. 
 Chambers v. Smith, 432. 
 Chancellor v. Brown, 124. 
 Chancey's Case, 185. 
 Chapman v. Auckland Union, 
 523. 
 
 — V. Brown, 74. 
 
 — V. Browne, 122. 
 
 — «. Miohaelson, 427. 
 Charles v. Jones, 286. 
 Charlesworth v. Mills, 307. 
 Charnock v. Court, 526. 
 Charter v. Trevelyan, 425. 
 
 — V. Watson, 247. 
 Chastey v. Ackland, 520, 621. 
 Chattock V. Muller, 487, 495. 
 Chawner's Will, Re, 125. 
 Chaytor v. Horn, 125. 
 Cheese v. Keen, 463. 
 Cheunell, In re, 122. 
 Cherry v. Boultbee, 469. 
 Chester (Dean, &o.) v. Smelting 
 
 Corporation, 533. 
 
INDEX TO CASES CITED. 
 
 Chesterfield v. Jansseu, 420, 427. 
 Chesterfield's Trusts, In re, 125. 
 Ghetwynd v. Allen, 243. 
 
 — V. Morgan, 16, 41, 391. 
 Chichester v. BiokerstafE, 168. 
 
 — V. Coventry, 189. 
 Chifeeriel, Re, 490. 
 Child «. Elsworth, 151. 
 Child ers v. Childers, 79. 
 ChiUingworth v. Chambers, 116, 
 
 440. 
 Chilton V. Progress Co., 526. 
 Chinnock v. Ely, 481. 
 Cholmondeley v. Clinton, 252. 
 Chorley, Ex parte, 54. 
 Chorley's Case, 107. 
 Christ's Hospital v. Grainger, 73. 
 Christie v. Darey, 521. 
 Christie v. Taunton, &c., Co., 52, 
 
 466. 
 Christison «. Bolam, 303. 
 Christmas v. Jones, 53. 
 Churcher v. Martin, 82. 
 Churchward v. Churchward, 342. 
 Churtou V. Douglas, 458. 
 City of Westminster Case, 617. 
 Clack's Case, 107. 
 Clare v. Lamb, 287. 
 Clarke. Clark, 111. 
 
 — V. Leach, 451. 
 
 — V. Sewell, 151, 185. 
 
 — V. Wright, 38. 
 
 Clarke, In re (1898, 2 Q. B.), 
 350. 
 
 — In re (1898, 1 Ch.), 384. 
 Clarke v. Abingdon (Lord), 322. 
 
 — V. Birley, 443. 
 
 — V. Byne, 540. 
 — ■ V. Clayton, 535. 
 
 — V. Franklin, 158, 163, 165. 
 
 — V. Palmer, 298. 
 
 — V. Parker, 156, 419. 
 
 — V. Royle, 87. 
 
 — V. White, 289. 
 Clarkson v. Bowyer, 95. 
 
 — V. Henderson, 257. 
 
 — V. Robinson, 57, 108. 
 Clay & Tetley, In re, 64. 
 Clayton & Barclay's Contract, In 
 
 re, 497. 
 Clayton's Case, 469, 470. 
 Cleaver v. Mutual Eeserve, 355. 
 
 — V. Spurling, 155. 
 Clegg V. yishwick, 81. 
 Clement v. Cheeseman, 145. 
 Clements v. Hall, 455. 
 
 — V. Matthews, 4. 
 
 — V. Pearsall, 155. 
 
 — V. Ward, 349. 
 
 Clergy Orphan Corp., In re, 69. 
 Clermont v. Tasburgh, 486. 
 Cleveland (Duke), In re, 166. 
 Clews V. Grindey, 106. 
 Clifford V. Burlington, 391. 
 
 — V. Gurney, 193. 
 Clinan v. Cooke, 483. 
 Clinton v. Hooper, 292. 
 Clough, Ex 'parte, 41. 
 Clough V. Bond, 114, 392. 
 Cloutte V. Story, 430. 
 Club, Ltd. V. Cash, 532. 
 Clyde Bank Case, 321. 
 Coaks, In re, lift. 
 Coaks V. Bayley, 255. 
 Coates v. Coates, 468. 
 Cobb V. Cobb, 316. 
 Cochrane v. M'Nish, 532. 
 
 — V. Willis, 397. 
 Cookell V. Taylor, 56. 
 Cockerell's Estate, In re, 313. 
 Cocks 1). Chandler, 532. 
 
 — V. "Chapman, 103, 106, 121. 
 
 — V. Manners, 71. 
 Codrington v. Codrington, 178. 
 Coe, Me, 140. 
 
 Cogan V. Stephens, 164. 
 Cogent V. Gibson, 476, 478. 
 Cohen v. Mitchell, 497. 
 Cohen's Executors' Case, 96. 
 Coker, Ex parte, 203. 
 Cole V. Eley, 315. 
 
 — V. Park, 316. 
 
 — V. Sims, 510. 
 
 — V. Willard, 190. 
 Coleman v. Bucks Bank, 131. 
 
 — V. Mellersh, 137. 
 Coles V. Peyton, 439. 
 
 — V. Pilkington, 8, 612. 
 
 — V. Trecothiok, 425. 
 Coling V. Haden, 182. 
 CoUingham v. Sloper, 99. 
 Collins V. Barker, 455. 
 
 — u. Castle, 500. 
 
 — V. CoIUns, 87, 90. 
 CoUinson v. Lister, 62. 
 Colombine v. Penhall, 37. 
 Colton V. Wilson, 549. 
 Colverson v. Bloomfield, 551, 552. 
 Colyer v. Clay, 400. 
 
 — V. Finch, 297. 
 Coming, Bx parte, 294. 
 Concessions Trusts, In re, 428. 
 ConoUy, In re, 59. 
 ConoUy v. ConoUy, 69. 
 Constable v. Constable, 154. 
 Constantinidi v. Constantinidi, 
 
 344. 
 Cook V. Andrews, 503. 
 
XVUl 
 
 INDEX TO CASES CITED. 
 
 Cook V. Dawson, 198. 
 
 — V. Fowler, 251. 
 
 — V. Frederick, 173. 
 
 — V. Gregson, 192. 
 Cook's Mortgage, In re, 93. 
 Cooke, Ex parte, 463. 
 Cooke V. CoUingridge, 114. 
 
 — V. Smith, 44, 83. 
 
 — V. Stevens, 223. 
 
 — V. Turner, 156. 
 Coombe v. Carter, 46. 
 
 — V. Wilkes, 494. 
 Coomber v. Coomber, 423. 
 Cooper V. Cooper, 177. 
 
 — V. Maodonald, 331, 341. 
 
 — V. Metropolitan Board, 289, 
 
 458. 
 
 — V. Phibbs, 92, 399. 
 
 — V. Skinner, 137. 
 
 — V. Vesey, 12, 263. 
 Cooper-Dean v. Stevens, 68. 
 Coote V. Whittington, 194. 
 Cope V. Crossingnam, 225. 
 Copis V. Middleton, 438. 
 Coppin V. Coppin, 215. 
 Coppin'a Case, 365. 
 Corbett v. Cobham, 188. 
 
 — V. Plowden, 253. 
 Oorbett's Case, 494. 
 Corbishley's Trust, In re, 83. 
 Corder v. Morgan, 484. 
 Cordingley v. Cheesebrough, 490. 
 Cornish, In re, 112. 
 
 Cornwall v. Henson, 508. 
 Corser v. Cartwright, 63, 126. 
 Cory V. Abbot, 70. 
 Cory Bros. v. SS. Mecca, 470. 
 Costa Rica R. C. v. Forwood, 
 
 110. 
 Costabadie v. Costabadie, 153. 
 Cotterell v. Stratton, 242. 
 Cotton's Trustees v. London 
 
 School Board, 63. 
 Coulson, Hx parte, 336. 
 Court V. Berlin, 457. 
 Courtenay v. Williams, 133, 468. 
 Cousins, In re, 271. 
 Cowan V. Buccleuch, 522. 
 Cowley V. Cowley, 533. 
 Cowper V. Cowper, 1, 96. 
 
 — V. Laidler, 533. 
 Cox V. Hickman, 451. 
 
 — V. Higford, 326. 
 
 — V. Hutchinson, 450. 
 Cox's Trust, In re, 154. 
 
 Cox & Neve's Contract, /;( re, 
 
 269, 492. 
 Cox-Moore's Case, 276. 
 Coxen V. Rowland, 337. 
 
 Crabtree v. Poole, 494. 
 Cracknall v. .Janson, 34. 
 Cradook v. Piper, 107. 
 Cragoe v. Jones, 444. 
 Cranmer's Case, 185. 
 Crawcour v. Salter, 308. 
 Crawford v. Forshaw, 70. 
 
 — V. May, 220. 
 Crawshay v. Collins, 455. 
 
 — V. Thornton, 638. 
 Crawter v. Marvin, 205, 220. 
 Craythorne v. Swinburne, 438. 
 Credland v. Potter, 274. 
 Crichton v. Crichton, 185, 190. 
 Croft V. Lumley, 323. 
 Cronmire, Ex parte, 351. 
 Orosbie-Hill v. Sayer, 276. 
 Cross V. London Anti-^'iv. Soc, 
 
 77. 
 Crosse v. Keene, 488. 
 
 — V. Lawrence, 488. 
 Crossley, In re, 122. 
 Crossley v. Lightowler, 522. 
 Crouch V. Credit Fonoier, 54. 
 
 — 0. Waller, 332. 
 Orowder v. Stewart, 220. 
 Crowe V. Clay, 390. 
 
 — V. Price, 55. 
 Crowly V. Bergtheil, 264. 
 Crowther v. Crowther, 464. 
 
 — V. Blgood, 426. 
 Croxton v. May, 370. 
 Croydon Gas v. Dickinson, 442. 
 Crunden & Meux, In re, 139. 
 Cruse V. Barley, 165. 
 Cruttwell V. Lye, 459. 
 Cubbon, Re, 551. 
 
 Cuenod v. Leslie, 351. 
 Cummins o. Fletcher, 280. 
 Cunliffe-Smith v. Hankey, 194. 
 Cuno V. Mansfield, 330, 349. 
 Curling v. May, 157. 
 Curuock V. Born, 312, 314. 
 Currant v. Jago, 80. 
 Currie v. Pye", 186. 
 Curtis V. Price, 33. 
 Curwen v. Milburn, 314. 
 Cutts V. Thoday, 485. 
 Cyclostyle, the, "531. 
 
 Daore v. Patrickson, 213, 214. 
 Dagenham Docks Case, 326. 
 Daking v. Whimper, 34, 35. 
 Dale & Co., Ex parte, 471. 
 Dallas, Re, 50. 
 Dalston v. Coatsworth, 390. 
 
INDEX TO CASES CITED. 
 
 XIX 
 
 Dance v. Goldingham, 492. 
 Dando v. Porter, 289. 
 Dangar's Trusts, In re, 279. 
 D'Angibau, In re, 367. 
 Daniel v. Sinclair, 399. 
 Daniels v. Davison, 270. 
 Dann v. Spurrier, 14. 
 Dansk v. Snell, 90. 
 Dardier v. Chapman, 367. 
 Darke v. Martyn, 103. 
 
 — V. Williamson, 117, 226. 
 Darkin v. Darkin, 332. 
 
 Darley v. Hodgson, 195, 213, 
 
 218, 337. 
 Darling, He, 384. 
 Darlow v. Bland, 306. 
 DarreU v. Tibbitts, 438. 
 Dashwood i. Magniac, 519. 
 Daubeny v. Cockburn, 431. 
 Daugars v. Eivaz, 525. 
 Davenport v. Marshall, 182. 
 Davey v. Bourne, 552. 
 
 — V. Williamson, 276. 
 David i>. Eees, 466. 
 Davidson, In re, 70, 457. 
 
 — ij. Chalmers, 47. 
 
 — V. Illidge, 222. 
 Davies v. Davies, 456. 
 
 — V. Gas Light & Coke Co., 
 
 517. 
 
 — V. London Insurance, 411. 
 
 — V. Makuna, 512. 
 
 — V. Parry, 221. 
 
 — V. Rees, 307. 
 
 — V. Tagart, 133. 
 
 — V. Thomas, 90, 384. 
 
 — V. Town Properties, 513. 
 
 — V. Wattier, 389. 
 Davies' Policy, In re, 355. 
 Davies's Trusts, In re, 219. 
 Davis, In re. 111, 134. 
 
 — V. Angell, 156, S44. 
 
 — V. Freethy, 57. 
 
 — V. Hutchings, 106, 267. 
 
 — V. Ingram, 535. 
 
 — V. Petrie, 45. 
 
 — V. Whitehead, 293, 481. 
 Daw V. Herring, 451. 
 Dawes v. Creyke, 343. 
 Dawson v. City EaU. Co., 48. 
 
 — V. Clarke, 117. 
 Day V. Brownrigg, 511. 
 Deacon v. Smith, 181. 
 Deakin, Se, 312. 
 Dean v. M'Dowell, 449. 
 Dearie v. Hall, 49. 
 Dearsley v. Middle week, 116. 
 Debenham v. Ox, 420. 
 
 — V. Sawbridge, 502. 
 
 De Brimond u. Harvey, 101. 
 
 De Bussche v. Alt, 425. 
 
 De Caux v. Skipper, 280. 
 
 De Cordova v. De Cordova, 398. 
 
 Dee Estates, In re, 315. 
 
 Deeks v. Strutt, 147. 
 
 Deering v. Bank of Ireland, 201. 
 
 Deeze, Ex parte, 311. 
 
 De Francesco v. Barnum, 477, 
 
 516. 
 De Galve v. Gardner, 202. 
 De Hoghton v. Money, 263, 494. 
 Deighton & Harris, In re, 507. 
 Deines v. Scott, 135. 
 De Lassalle v. GuUdford, 509. 
 Delves v. Gray, 110. 
 De Mainbray v. Metcalfe, 303. 
 De Mattos v. Gibson, 309. 
 De Mestre v. West, 38. 
 Dendy v. Evans, 324. 
 De Nicholls v. Saunders, 52. 
 Denne v. Light, 489. 
 Dennis, In re, 210. 
 Denny v. Hancock, 407. 
 Denaham's Trade Mark, In re, 
 
 531. 
 Dent V. Bennet, 423. 
 
 — V. Dent, 93. 
 
 — V. De Pothonier, 101. 
 Denton's Estate, In re, 441. 
 De Pass's Case, 421. 
 
 De Pereda v. De Mancha, 374. 
 De Pothonier v. De Mattos, 47. 
 Dering v. Winchelsea, 439. 
 De Rochefort v. Dawes, 229. 
 Derry v. Peek, 408. 
 Deschamps v. MiUer, 18. 
 De Sousa v. British South Africa, 
 
 18, 19. 
 Detmold v. Detmold, 40. 
 Devereux, In re, 141. 
 Deverges v. Sandeman, 301. 
 De Visme, In re, 81. 
 Deyes v. Wood, 255. 
 Dibbins v. Dibbins, 240. 
 Dick V. Fraser, 197, 224. 
 Dickinson v. Barrow, 483. 
 
 — V. Burrell, 13. 
 
 — V. Dodds, 495. 
 Dicks V. Brooks, 529. 
 Dicksee's Case, 38. 
 Diestal v. Stevenson, 322. 
 Dilkes V. Broadmead, 198. 
 Dillon V. Parker, 179. 
 Dingle v. Coppen, 222, 244. 
 Diplock V. Hammond, 48. 
 District Bank, Ex parte, 351. 
 Dixon V. Astley, 503. 
 
 62 
 
XX 
 
 INDEX TO CASES CITED. 
 
 Dixon V. Brown, 396. 
 
 — V. Dixon, 332. 
 
 — V. Gayfere, 88. 
 
 — V. Williamson, 229. 
 
 — V. Winch, 271, 278. 
 Dobson V. Laud, 441. 
 Docker v. Somes, 109, 111. 
 Dodd V. Dodd, 845. 
 Dodson, l7i re, 163. 
 Dodsou V. Downey, 456. 
 Doe V. Foster, 546. 
 
 — V. Gay, 147. 
 
 — V. Lightfoot, 237. 
 
 — V. Manning, 33. 
 
 — V. Parratt, 356. 
 
 — V. Eusham, 34. 
 
 — V. Whitehead, 323. 
 Doering v. Doering, 53. 
 Doherty v. Allman, 519. 
 Doig V. Birrell, 2. 
 Dolphin V. Aylward, 35. 
 Donaldson v. Donaldson, 99. 
 Dooby V. Watson, 9, 279. 
 Dormer v. Forteseue, 390. 
 Dorrell v. Dorrell, 338. 
 Dott's Case, 427. 
 Doughty i;. Bull, 158. 
 
 — V, Townson, 211. 
 
 — V. Walker, 210. 
 Douglas V. Bayea, 487. 
 
 — V. Bolam, 98. 
 
 — V. GulverweU, 239. 
 
 — V. Simpson, 77, 350. 
 Dow V. Wheldon, 426. 
 Dowden-Pook v. Pook, 420. 
 Dowling V. Hudson, 62. 
 Downe V. Fletcher, 335. 
 Downes v. Jennings, 372. 
 Downs V. Collins, 448. 
 Dowse V. Gorton, 127, 128. 
 Dowsett V. Culver, 147, 224. 
 Dowson & Jenkins, Re, 66. 
 Drakeford v. Wilks, 7. 
 Drant v. Vause, 160. 
 Draycott v. Harrison, 350. 
 Drayton v. Loveridge, 95. 
 Dresel v. Ellis, 236. 
 
 Drew V. Leng, 333. 
 
 — V. Martin, 80. 
 
 Dreyfus v. Peruvian Guano Co., 
 
 526, 546. 
 Driffield Co. v. Waterloo Co., 
 
 524. 
 Drover v. Beyer, 551. 
 Drysdale v. Piggott, 247. 
 Duberley v. Day, 327.* 
 Dubouski V. Goldstein, 476. 
 Duddell V. Simpson, 507. 
 
 Duder u. Amsterdam Trustees, 
 
 18. 
 Duffield V. Elwes, 143, 145. 
 Duffln v. Duffin, 145. 
 Dulaney v. Merry, 45. 
 Dummer v. Pitcher, 178. 
 Dunbar v. Dunbar, 55, 80. 
 Duncan v. Dixon, 417. 
 Duncan & Co., In re, 206. 
 Duncan, Fox & Co. v. North and 
 
 South Wales Bank, 438. 
 Duncuft V. Albreoht, 478. 
 Dundas v. Dutens, 36. 
 Dungey v. Angove, 539. 
 Dunkley, In re, 42. 
 Dunlop Rubber Case, 49. 
 Dunn V. Flood, 486, 492. 
 Durham v. Legard, 491. 
 Durrant v. Branksome District 
 
 Council, 523. 
 Dursley v. Fitzhardinge, 544. 
 Duthy V. Jesson, 505. 
 Dye V. Dye, 23. 
 Dyer v. Dyer, 78, 79. 
 Dyose v. Dyose, 148. 
 Dyson & Fowke, In re, 63. 
 — V. Morris, 291. 
 
 Fames v. Hacon, 206. 
 Eardley v. Knight, 244. 
 Earle v. Bellingham, 152. 
 — V. Kingscote, 343, 351. 
 Earlom v. Saunders, 157, 162. 
 Earnshaw v. Earnshaw, 345. 
 Eastern Counties Ey. Co. v. 
 
 Hawke, 493. 
 Eastgate, In re, 305, 409. 
 Bast India Co. v. Donald, 402. 
 Eastman v. Comptroller, 531. 
 Eastwick v. Smith, 118. 
 Eastwood V. Vinke, 184. 
 Ebbs V. Boulnois, 498. 
 Ebrand v. Dancer, 78, 80. 
 Eccles V. Mills, 213. 
 Economic Life v. Usborne, 251, 
 
 284. 
 Edgar u. Plomley, 468. 
 Edge V. Worthington, 296. 
 Edgington v. Fitzmaurioe, 407. 
 Edmonds v. Robinson, 454. 
 Edmondson v. Copland, 246. 
 Edmunds v. Edmunds, 31. 
 Edmundson v. Render, 515. 
 Edwards, Ex parte, 314. 
 Edwards v. Barnard, 457. 
 
INDEX TO CASES CITED. 
 
 XXI 
 
 Edwards v. Carter, 417. 
 
 — V. Cheyne, 332. 
 
 — V. Cluj, 301. 
 
 — V. Grove, 379. 
 
 — V. Harben, 31. 
 
 — V. Hood-Barrs, 115. 
 ^ V. Hope, 313. 
 
 — V. Jones, 29, 143. 
 
 — V. Ml/eay, 410. 
 
 — V. Meyrick, 411. 
 
 — V. Picard, 260. 
 
 — V. Walters, 145. 
 
 — V. We=t, 161. 
 Edwards-Mo83 v. Marjoribanks, 
 
 295, 410. 
 Egg V. Blayney, 501. 
 Elder v. Pearson, 332, 333. 
 Elderton (Infants), In re, 375. 
 Elias V. Oxygen C!o., 283. 
 Elibank v. Montolien, 360. 
 Elliot V. Merryman, 62. 
 EUiott V. Cordell, 361. 
 
 — V. fisher, 162. 
 
 — V. Turner, 319. 
 
 — V. Turqnand, 467. 
 EUis V. Atkinson, 337. 
 
 — </. EUis, 182, 345. 
 
 — u. Emmannel, 446. 
 
 — V. Goulton, 507. 
 
 — V. Johnson, 136, 343. 
 
 — V. Rogers, 499. 
 • — V. Wilmot, 444. 
 
 Ellison V. Ellison, 27. 
 EUiston V. Eeacher, 500. 
 Elphinstone v. Monkland Iron 
 
 and Coal Co., 321. 
 Elsey V. Lutyens, 263. 
 Elton V. Curteis, 242. 
 Emery v. Wase, 418. 
 Enulie MiQon, The, 311. 
 Emmerson v. Ind, 543. 
 Emmet v. Emmet, 134. 
 Emuss V. Smith, 232. 
 Engel V. Fitch, 480. 
 England v. Downes, 371. 
 English and Scottish Mercantile 
 
 V. Bmnton, 275. 
 Bno V. Dunn, 531. 
 
 — V. Tatham, 216. 
 Brrington, In re, 284. 
 Errington v. Att.-Gen., 540. 
 European Bank, In re, 317. 
 Evans v. Bagshaw, 534. 
 
 — V. Bremridge, 437. 
 
 — V. Chapman, 406. 
 
 — V. BUiot, 254. 
 
 — V. Evans, 128. 
 
 — V. Manchester and Sheffield 
 
 R. C, 522. 
 
 Evans v. Moore, 224. 
 
 — V. E. G. Quarries, 275. 
 
 — V. Ware, 516. 
 
 Evans & BetheU, In re, 63, 147, 
 
 493. 
 Evelyn v. Evelyn, 215. 
 Evered, In re, 432. 
 Evered v. I/eigh, 173. 
 Everett v. Remington, 514. 
 Ewing V. Osbaldiston, 474. 
 Exchange, &c., Ltd. v. Land 
 
 Financiers, 282. 
 Eyre v. Hughes, 257. 
 
 — V. Shaftesbury, 373. 
 
 F. V. F., 376. 
 Failes v. Failes, 343. 
 Fairthome v. Weston, 453. 
 Falcke v. Gray, 478. 
 
 — V. Scottish Imperial, 94. 
 Fanshawe, In, re, 201. 
 Farewell v. Coker, 314. 
 Farina v. Fickus, 484. 
 Farmer v. Goy ic Co., 466. 
 
 — V. Waterloo and City E. C, 
 
 517. 
 Famham, He, 384. 
 Farquhar v. Dowling, 68. 
 Farquharsou v. Cave, 144. 
 
 — V. Floyer, 231. 
 Farr v. Ward, 539. 
 
 Farrand v. Yorkshire Bank, 297. 
 Farrant v. Lovel, 252. 
 Farrar v. Cooper, 511. 
 Farwell v. Lewis, 168. 
 Fauntleroy v. Beebe, 163. 
 Faversham (ilayor) v. Ryder, 
 
 68. 
 Fawcett v. Lowther, 241. 
 Fawcett & Holmes's Contract, In 
 
 re, 602. 
 Fawell V. Heelis, 87, 89. 
 Feamside v. Flint, 249. 
 Fell V. Brown, 241. 
 
 — V. 0. T., 236. 
 Fenwick v. Clarke, 224. 
 
 — V. Eeed, 240. 
 Fenwick's Case, 272. 
 Femeley's Trusts, In re, 338. 
 Ferres v. Ferres, 7. 
 Fettiplaoe v. Gorges, 329. 
 Fewings, Hx parte, 290. 
 Field V. Field, 101. 
 
 — V. Hopkins, 242. 
 
 — v. Lonsdale, 79. 
 
xxu 
 
 INDEX TO CASES CITED. 
 
 Field V. Moore, 378. 
 
 Fielding v. Preston, 218. 
 
 FUby V. Hounsell, 495. 
 
 Finch 1). Squire, 122. 
 
 Finok V. Tranter, 295. 
 
 Finlay v. Mexican Investment 
 
 Corporation, 438. 
 Fish V. Klein, 98. 
 Fisher v. Jackson, 525. 
 Fisk V. Att.-Gen., 74. 
 Fitch V. Weber, 165. 
 FitzGeorge, In re, 436. 
 Fitzgerald v. Chapman, 364. 
 
 — V. White, 43. 
 Fitzgerald's Trustee v. Mellersh, 
 
 246. 
 Fitzroy v. Cave, 56. 
 Flack V. Holm, 551. 
 Fleet V. Perrina, 327. 
 Flegg V. Prentice, 202. 
 Fleming v. Hislop, 520. 
 Fletcher, Ex parte, 282. 
 Fletcher, In re, 188. 
 Fletcher v. Bealey, 546. 
 
 — V. Lancashire, &c., E. C, 
 
 504. 
 
 — V. Nokes, 323. 
 Flight V. Bolland, 477. 
 
 — V. Booth, 489. 
 Flint V. Barnard, 444. 
 
 — V. Howard, 229, 283. 
 Foley V. Hill, 463. 
 Forbes «. Adams, 167. 
 Ford V. Ford, 153. 
 
 Forest of Dean Coal Co., Re, 138. 
 Formby v. Barker, 514. 
 Forrer v. Nash, 477. 
 Forster v. Baker, 48. 
 
 — V. Hale, 22. 
 
 — V. Patterson, 247. 
 Fortescue v. Barnett, 28. 
 
 — V. Lostwithiel E. C, 475. 
 Fobs v, Harbottle, 415. 
 Foster v. Foster, 164, 167, 377. 
 
 — V. Mackinnon, 66. 
 
 — V. Metcalfe, 147. 
 
 — V. Reeves, 17. 
 
 — V. Eoberts, 247. 
 Fothergill v. Fothergill, 391. 
 Fountaine v. Amherst, 112. 
 Fowkes V. Paseoe, 82. 
 Fowler v. Att.-Gen., 71. 
 
 — V. Fowler, 190, 403. 
 Fox, Re, 385. 
 
 Fox V. Buckley, 133. 
 
 — V. Hawks, 29. 
 
 — V. Mackreth, 410. 
 
 Fox Walker & Co., In re, 437. 
 France v. Clark, 301. 
 
 Frances Handford, In re, 336. 
 Francis v. Bruce, 145. 
 
 — V. Wigzell, 335. 
 Franklin v. Brownlow, 485. 
 
 — v. Neate, 300. 
 Frape, In re, 424. 
 Frederick v. Att.-Gen., 545. 
 Freeman d. Laing, 274. 
 
 — v. Pope, 31. 
 Freeman's Case, 450. 
 Freeman's Settlement, Re, 108. 
 Freke v. Calmady, 173, 519. 
 
 — V. Lord Carbery, 206. 
 Freman v. Whitbread, 155. 
 Freme's Contract, In re, 493. 
 French ■«. Macale, 319. 
 
 French (Edith Mary), In re, 98, 
 
 387. 
 Frere v. Winsloiv, 224. 
 Freshfield's Trust, In re, SI. 
 Frewen v. Frewen, 148, 169. 
 
 — V. Law Life, 226. 
 Friend v. Young, 461, 463, 469. 
 Frith V. Frith, 49. 
 
 Frowd V. Frowd, 346. 
 Frowde v. Hengler, 130. 
 Fry V. Lane, 426. 
 Fryer, In re, 113. 
 Fryman v. Fryman, 205. 
 Fuller, Ex parte, 312. 
 FuUer w. Bennet, 272. 
 
 — V. M'Mahon, 217. 
 
 — V. Redman, 200. 
 FuUwood V. FuUwood, 9. 
 Fytche v. Fytehe, 179. 
 
 G. (Infants), In re, 153. 
 Gadd V. Thompson, 477, 516. 
 Gadd's Case, 427. 
 Galbraith v. Poynton, 323, 326. 
 Gale V. Gale, 370. 
 
 — V. Lindo, 419. 
 
 — V. Williamson, 33. 
 Galland, In re, 312. 
 Galloway v. Hope, 158. 
 Galton V. Hancock, 212. 
 Game v. Young, 59, 124. 
 Gandy v. Gandy, 41. 
 Gardner v. Blane, 373. 
 
 — V. L. C. D. Rail. Co., 237. 
 Garland, Ex parte, 128. 
 Garner v. Murray, 454. 
 Garrard v. Lauderdale, 43. 
 Garrett v. Wilkinson, 82. 
 Garth -v. Cotton, 518. 
 
INDEX TO CASES CITED. 
 
 XXIU 
 
 Garwood v. Paynter, 57, 456. 
 Gaskell v. Gaakell, 534. 
 Gaskell & Walters, In re, 225. 
 Gas Light v. Turner, 14. 
 Gatfield's Case, 247. 
 Gatheroole v. Smith, 235, 468. 
 Gauthier's Case, 337. 
 Gaylor's Settlement, Be, 157. 
 Geaves, Ex parte, 106. 
 Gebruder v. Ploton, 538. 
 Gedney, In re, 467. 
 Gee V. Pritehard, 529. 
 General Accidents v. Noel, 320. 
 General Auction Co. v. Smith, 
 
 237. 
 General Billposting v. Atkinson, 
 
 514. 
 Gent & Eason, In re, 121. 
 George v. Clagett, 465. 
 
 — V. Milbanke, 35. 
 Geraon v. Simpson, 408, 440. 
 Gibbes v. Hale-Hinton, 124. 
 Gibbs V. Gmld, 9. 
 
 ^ V. Messer, 263, 266. 
 GUbert, In re, 221. 
 Gilbert v. Overton, 30. 
 Gilchrist, Ex parte, 350. 
 GUes u. Giles, 403. 
 
 — V. Grover, 193. 
 GiUett V. Wray, 155. 
 Gillies V. Longlands, 167. 
 Gillings V. Fletcher, 185, 190. 
 Ginger, 7« re, 39, 308. 
 Gittins, In re, 148. 
 
 Gjers, Re, 519. 
 Glegg's Case, 242. 
 Glenorchy v. Bosville, 24. 
 Gloag & MiUer, In re, 499, 604. 
 Gloucester Bank ?. Rudry Co., 
 
 254, 256. 
 Gluckatein o. Barnes, 109, 413. 
 Goatley v. Jones, 353. 
 Goddard v. Snow, 371. 
 Godfrey v. Poole, 32, 35. 
 
 — V. Watson, 257, 261. 
 Godwin v. Francis, 477. 
 Golden u. GiUam, 33. 
 Golding, Ex parte, 88. 
 Goldsmid v. Goldsmid, 174. 
 Gooch V. Goooh, 549. 
 Goodchap r. Roberts, 251. 
 Goodfellow V. Gray, 315, 466. 
 Goodwin v. Fielding, 263, 494. 
 
 — ('. Robarts, 54. 
 
 — V. Waghorn, 294. 
 Gophir Co. v. Wood, 516. 
 Gordon v. Craigie, 68, 70. 
 
 — V. Gordon, 397. 
 Gorringe v. Irwell Co., 205. 
 
 GosUng V. Gosling, 75. 
 
 — V. Smith, 68. 
 Gosman, In re, 84. 
 Gould, In re, 205. 
 Gould V. Robertson, 44. 
 Grace, Ex parte, 317. 
 
 Graham v. Londonderry, 329, 
 
 357. 
 Grant v. Gold Exploration, 425. 
 
 — V. Grant, 29. 
 Gratton v. Machen, 133. 
 Gray v. Baddeley, 219, 333. 
 
 — V. Bonsall, 324. 
 
 — V. Seckham, 438. 
 Grayburn v. Clarkson, 124. 
 Graydon, In re, 312. 
 
 Great Luxemburg Rail. Co. v. 
 
 Magnay, 109. 
 Great Northern Railway Co. v. 
 Saunderson, 493. 
 
 — V. Winder, 320. 
 Greatorex v. Shackle, 539. 
 Greedy v. Lavender, 366, 369. 
 Green, In re, 356. 
 
 Green v. Bridges, 323. 
 
 — V. Farmer, 465. 
 
 — V. Green, 178: 
 
 — V. Marsh, 289. 
 
 — V. MeinaU, 80, 356. 
 
 — V. Patersou, 41. 
 
 — V. Sevin, 491. 
 
 — V. Thompson, 477. 
 Greene v. West Cheshire R. C, 
 
 475. 
 Greenough v. Littler, 245, 282. 
 Greenwood v. Francis, 442. 
 
 — V. Greenwood, 149, 186, 398. 
 
 — V. Sutcliffe, 246. 
 
 — V. Turner, 503. 
 Gregg V. Holland, 36, 484. 
 Gregory v. Dowding, 182. 
 
 — V. MigheU, 483, 487, 495. 
 
 — V. Wilson, 323, 480. 
 Gregson, In re. 111 . 
 Grepe v. Loam, 547. 
 Gretton v. Haward, 171. 
 Greville v. Browne, 233. 
 Grey v. Grey, 82. 
 
 Grice u. Richardson, 312. 
 Griesaemanu v. Carr, 106^ 
 Griffin u. Griffin, 29, 46, 145. 
 Griffith V. Hughes, 136. 
 
 — u. Ricketts, 158, 165. 
 
 — V. Spratley, 411. 
 
 — V. Vezey, 508. 
 Griffiths V. Fleming, 355. 
 
 — V. Griffiths, 315. 
 Griffith's Policy, In re, 355. 
 Grimond v. Grimond, 70. 
 
XXIV 
 
 INDEX TO CASES CITED. 
 
 Grimston v. Cunningham, 515. 
 Grimthorpe, In re, 162, 169. 
 Grissell v. Swinhoe, 176. 
 Grove v. Bastard, 549. 
 — V. Young, 649. 
 Guest V. Smyfche, 110. 
 Guild & Co. V. Conrad, 435. 
 Gunter v. Halsey, 481. 
 
 Haddon v. Haddon, 345. 
 
 Hadley, In re, 146. 
 
 Haedicke & Lipski, In re, 492, 
 
 496. 
 Haldenby v. Spofforth, 126. 
 Hale V. Webb, 204. 
 Hales V. Cox, 35. 
 Half hide v. Kobinaon, 385. 
 Halifax Bank v. British Power, 
 
 129 
 Halkett v. Dudley (Earl), 504, 
 
 506. 
 Hall, Ex parte, 49. 
 HaU V. Hall (12 Beav.), 452. 
 
 — V. Hall (L. R. 8 Ch. App.), 
 
 430, 547. 
 
 — V. Hall (1911, 1 Ch.), 292. 
 
 — V. Heward, 244, 281. 
 
 — V. Potter, 419. 
 Hall-Dare -o. Hall-Dare, 405. 
 Hallas V. Robinson, 46. 
 Hallett V. Hallett, 468. 
 
 — V. Hastings, 329, 356. 
 Hallett & Co., In re, 132. 
 Hallows V. Lloyd, 51. 
 Hambrough, In re, 380. 
 Hambrough v. Hambrough, 380. 
 Hamer v. Giles, 315. 
 Hamilton, In re, 380. 
 Hamilton v. Buckmaster, 496. 
 Hammonds v. Barrett, 41. 
 Hampshire Land Co., In re, 270. 
 Hampton v. Nourse, 155. 
 Hanbury v. Fisher, 58. 
 
 — ■ V. Hussey, 535. 
 Hanby v. Roberts, 231. 
 Hance v. Harding, 38. 
 Hancock v. Smith, 132. 
 Handford (Frances), In re, 336. 
 Handman & Wilcox, In re, 265, 
 
 496. 
 Hanfstaengl v. Empire Palace. 
 529. 
 
 — V. Newnes, 529. 
 
 — v. Smith, 529. 
 Haunen v. Hillyer, 70. 
 
 Hanson v. Keating, 361. 
 
 — V. Stubbs, 194. 
 Harbin v. Mastermann, 149. 
 Harding v. Metropolitan Rail. 
 
 Co., 159. 
 Hardinge v. Cobden, 27. 
 Hardman v. Child, 503, 508. 
 Hardoon v. Belilios, 421. 
 Hardy v. Att.-Gen., 68. 
 
 — V. Farmer, 205, 207. 
 
 — V. FothergUl, 203. 
 Hare & O'More, In re, 490. 
 Hargreaves, In re, 194, 208. 
 Hargreaves v. Taylor, 70. 
 Hargreaves & Thomson's Con- 
 tract, In re, 509. 
 
 Harkness & Allsopp, In re, 97, 
 352. 
 
 Harle v. Jarman, 364. 
 
 Harlock v. Ashberry, 248, 250. 
 
 Harman v. Harman, 220. 
 
 Harmood v. Oglander, 231. 
 
 Harms v. Parson, 420. 
 
 Harrington (Earl) v. Derby Cor- 
 poration, 523. 
 
 Harris v. Boots, 546. 
 
 — V. Briscoe, 56. 
 
 — V. Tubb, 34. 
 Harrison v. Foreman, 151. 
 
 — V. Forth, 265. 
 
 — V. Guest, 411. 
 
 — V. Harrison, 85, 312, 339, 348. 
 
 — V. Kirk, 206. 
 Harriss v. Fawcett, 436. 
 Harrold v. Plenty, 295. 
 Hart V. Duke, 450. 
 
 — V. Hart, 474, 502. 
 
 — V. Swaine, 488. 
 Hart's Case, 309. 
 Harter u. Coleman, 280. 
 Hartopp V. Hartopp, 344. 
 Harvey v. Hobday, 82. 
 Haselfoot, In re. Til, 303. 
 Haslam & Hier-Evans, lie, 424. 
 Hasluok V. Clark, 208. 
 
 Hassel -u. Hassel, 233. 
 Hatch u. Hatch, 422. 
 Hatten v. Russell, 499. 
 Hatton V. Harris, 319. 
 Havelook v. Havelock, 380. 
 Haviside, Ex parte, 203. 
 Hawes v. Wyatt, 416. 
 Hawkins, In re, 56. 
 Hawkins v. Blewitt, 144. 
 
 — V. Gathercole, 235. 
 
 — V. Hawkins, 213. 
 Hawksley v. Outram, 494. 
 Hawthorne, In re, 18. 
 Hayman v. Rugby School, 625. 
 
IN'DEX TO CASES CITED. 
 
 XXV 
 
 Haymes v. Cooper, 312. 
 Haynes t>. Doman, 420. 
 
 — V. Foster, 175. 
 
 — V. Mico, 1S4. 
 Hayward v. Att.-Gen., 71. 
 Head v. Head, 444. 
 
 — V. Gonld, 105, 138. 
 Heap V. Tonge, 38. 
 Heard v. Heard, 3io. 
 
 — V. PiUey, 78. 
 
 Hearle v. Grcenbank, 97, 174. 
 Heath v. C3iapinaii, 77. 
 
 — V. Crealock, 295, 408. 
 
 — V. Sansom, 452. 
 Heather Bell, The, 309. 
 Heailey v. Thomas, 333. 
 Hedlev v. Webb, 510. 
 Heffield v. lleadows, 436. 
 Helby v. >Iatthew3, 304. 
 Hebnore v. Smith, 524. 
 Helyar, In re, 373. 
 Hemmings v. Sceptre Life, 409, 
 Hemphill v. Hemphill, 365. 
 Hendry v. Turner, 452. 
 Henley & Co., Ltd., Se, 193. 
 Henry v. Armstrong, 430. 
 Hensman v. Fryer, 231. 
 Henthom v. Fraser, 477. 
 Henty v. Wrey, 151, 430. 
 
 Hep worth V. Hepworth, 82. 
 
 — V. Pickles, 513. 
 Herey v. Birch, 448, 475. 
 Herman Loog v. Bean, .524. 
 Hermann v. Charlesworth, 419. 
 Heslop V. iletoalfe, 315. 
 Hetling k. ilerton. Me, 66. 
 Hewett, In re, 336. 
 
 Hewison v. Negas. 36. 
 Hewitt V. Looiemore, 29-5. 
 Heyne.i v. Dixon, 130, 248. 
 Hickman v. Up -all, 247. 
 Higgins V. Dawson, 213. 
 
 — V. Pitt, 430. 
 
 — V. Samel", 491. 
 
 — V. Scott, 314. 
 Higginson, In re,^211. 
 Higginson & Dean, I/i re, 163. 
 Highett & Bird, /,. re, 501. 
 Higinbotham v. liolme, 4i|. 
 Hill V. Barclay, 323. 
 
 — -c. Bridges, 207. 
 
 — V. Bnckley, 489. 
 
 — V. Cooper, 343. 
 
 — V. Edmonds, 361. 
 
 — V. Fearis, 459. 
 
 — V. Gonune, 41, 484. 
 
 — V. Hickin, 466, 537. 
 
 — V. Mathie, 356. 
 
 — V. Eowlands, 246. 
 
 HUl V. Schwarz, 432, 477. 
 
 — V. Smith, 317. 
 HiU's Case, 2.56. 
 Hilliard v. Falford, 393. 
 Hills V. CroU, 515. 
 
 — V. Hills, 143. 
 Hilton, In re, ViA. 
 Hindson v. WeatherUl, 423. 
 HipgroTB V. Case, 496. 
 Hippisley v. Knee, 109. 
 Hiram Maxim Lamp Case, 466. 
 Hirth, Ue, 414. 
 
 Hoare v. Bremridge, 406. 
 
 — V. Osborne, 67, 73, 74. 
 
 — V. Tasker, 243. 
 Hobbs V. Hull, 370. 
 
 — V. Wade, 464. 
 
 — V. Wayet, 546. 
 Hobday »." Peters, 138. 
 Hoblyn v. Hoblyn, 422. 
 Hobson V. Bass, 446. 
 
 — V. Sherwood, 534. 
 
 — V. Trevor. 46, 478. 
 
 — V. Tulloch, 515. 
 Hockey v. Western, 302. 
 Hodge's Legacy, Be, 155. 
 Hodge's Settlement, Re, 374. 
 Hodges V. Hodjres, 341. 
 Hodgson V. Bates, 123. 
 
 — V. Braisby, 189. 
 
 — V. Deans, 287. 
 
 — V. Shaw, 438. 
 Hod kin son v. Qtiinn, 64. 
 Hodson V. Henland, 483. 
 Hodson & Howe, He, 288. 
 Hogg V. Scott, 530. 
 Hoghtou V. Hoghton, 422. 
 Holden, In re, 33. 
 Holder v. Williams, 222. 
 Holderness v. Lampert, 79. 
 Holditch V. Mist, 2 5 
 Hole, In re, 385. 
 
 Hole V. Bethune, 3i9. 
 
 — i. Chard Union, 32i). 
 Holford V. Acton Council, 516. 
 
 — V. Holford, 155. 
 Holgate V. Jennings, 124. 
 
 — V. Shutt, 464. 
 Holland, Ex pa,te, 335. 
 Holland a. Evre, 495. 
 
 — V. HoUand, 135. 
 
 — V. Worley, 533. 
 Holliwell V. Seacombe, 506, 508. 
 Holloway v. HadcMe, 166. 
 HoUoway Brothers v. Hill, 613. 
 Holme V. BruuskUl, 437. 
 
 — V. Guppy, 322. 
 
 Holmes u. Holmes (1907, 2 Cti.), 
 199. 
 
XXVI 
 
 INDEX TO CASES CITED. 
 
 Holmes v. Penny, 32. 
 Holmes, In re A. I>., 265. 
 Holroyd v. Marshall, 46. 
 Holt V. Frederick, 81. 
 
 — V. Holt, 91, 133, 261. 
 Holt & Co.'s Trade Mark, In re, 
 
 531. 
 Holtby V. Hodgson, 336, 350, 356. 
 Home & Colonial Stores v. Colls, 
 
 521. 
 Honeyman v. Marryat, 491. 
 Honner v. Morton, 366. 
 Honywood o. Honywood, 225. 
 Hood, In re, 140. 
 Hood V. Hood, 215. 
 
 — V. Mackinnon, 400. 
 Hood-Barrs v. Catheart (1895, 1 
 
 Q. B.), 136. 
 
 — V. Heriot, 136, 342. 
 Hoole V. Smith, 287. 
 Hooper «. Smart, 54. 
 Hope, The, 316. 
 Hope V. Hope, 331, 474. 
 
 — V. Walter, 506. 
 Hopkins, Ex parte, 375. 
 Hopkins v. Gudgeon, 308. 
 
 — V. Hemsworth, 52, 264. 
 Hopkinson v. Forster, 49. 
 Hore V. Becher, 399. 
 
 Home and Hellard, In re, 276, 
 
 500. 
 Hornsby v. Lee, 366. 
 Hornsey District Council v. 
 
 Smith, 283. 
 Horrocks v. Eigby, 489. 
 Horsnaill, In re, 534. 
 Hosking v. Smith, 276. 
 Hovenden v. Annesly, 15. 
 How V. Winterton, 112, 461. 
 Howard v. Digby, 257. 
 
 — V. Fanshawe, 323, 324. 
 Howarth, He, 150, 380. 
 Howe V. Dartmouth, 123. 
 
 — V. Kingscote, 226. 
 
 — V. Smith, 506. 
 
 Howe Trustees, Ex parte, 105. 
 Howell V. Price, 240. 
 
 — V. Young, 130. 
 Howes V. Bishop, 422. 
 Hudson, In re, 146. 
 Hudson V. Cripps, 434. 
 
 — V. Hudson, 113. 
 
 — V. Spencer, 186. 
 Hughes ('. Anderson, 16. 
 
 — v. Britannia Society, 280. 
 
 — V. Kearney, 87. 
 
 — V. Morris, 482. 
 
 — V. Wells, 133. 
 
 — V. Wynne, 196. 
 
 Hughes & Co., In re, 460. 
 Hugill V. Wilkinson, 196, 248. 
 
 291. 
 Huguenin v. Baseley, 408, 423. 
 Humber v. Richards, 264. 
 Humble v. Humble, 248. 
 Hume V. Pocock, 499. 
 Hunt, Re, 383. 
 Hunt V. Blmes, 104, 298. 
 
 — V. Fripp, 497. 
 
 — V. Luck, 270. 
 
 — V. Thome, 216. 
 
 — V. Wenham, 197. 
 Hunter v. A. G., 71, 75. 
 
 — V. Daniel, 56. 
 
 — V. Dowling, 137, 454, 459. 
 
 — V. Young, 212. 
 Huntingdon v. Huntingdon, 292. 
 Hurrell v. Littlejohn, 92, 411. 
 Hurst V. Beach, 145, 186. 
 Hussey v. Horne-Payne, 494. 
 Huttley V. Huttley, 56. 
 Hyams v. Stuart-King, 54. 
 Hyde v. Price, 331. 
 
 Hyde Park Place Charity, In re, 
 
 69. 
 Hyett V. Mekin, 163. 
 
 Ideal Beddin|' Co.'s Case, 31. 
 Imperial Gaslight v. Broadbent, 
 
 533. 
 Imperial Loan Co. v. Stone, 415. 
 Imperial Mercantile v. Coleman, 
 
 107, 109. 
 Imperial Mercantile Credit Co., 
 
 In re, 652. 
 Imray v. Oakshette, 324. 
 Income Tax Commissioners v. 
 
 Pemsell, 67. 
 Ind «. Eramerson, 12. 
 Ind Coope & Co., In re, 253, 266, 
 
 275. 
 Ingall V. Brown, 156. 
 Ingle V. Richards, 115, 223. 
 Inglefield o. Coglilan, 330. 
 Ingram v. Papillon, 189. 
 Innes v. Innes, 29. 
 
 — V. Sayer, 72. 
 International Marine v. Hawes, 
 
 219, 220. 
 Ireland v. Rittle, 535. 
 Irvine v. Sullivan, 60, 212. 
 Irwin V. Parkes, 8. 
 Isaacs V. Reginald, 160. 
 
 — u. Towell, 507. 
 
INDEX TO CASES CITED. 
 
 XXVll 
 
 Isaacson, In re, 307. 
 Islington Vestry v. 
 
 Council, 623. 
 Ives V. Wilians, 449. 
 
 Hornsey 
 
 J., In re, 387. 
 
 J V. S , 453. 
 
 J. H. & Co. V. F., 511. 
 Jackson, Mx parte, 289. 
 Jackson, In re, 376, 377. 
 Jackson v. Barry R. C, 450. 
 
 — V. Dickinson, 116, 440. 
 
 — V. North-Eastern R. C, 290. 
 Jackson's Case, 427. 
 
 Jackson & Bassford, In re, 42, 
 
 415. 
 Jacobs, In re, 444. 
 Jacobs V. Revel, 502. 
 
 — V. Seward, 464. 
 
 Jacques Cartier v. Montreal City 
 
 Bank, 135, 428. 
 James, Ex- parte, 42, 425. 
 James, In re, 208, 349. 
 James v. Allen, 75. 
 
 — V. Holmes, 80, 112. 
 
 — V. James, 208. 
 
 — V. London and County Bank, 
 
 201. 
 
 — V. Rice, 296. 
 
 — V. Rumsey, 261. 
 
 — V. Smith, 79, 481. 
 Jameson, In re, 148. 
 Jane Turner, In re, 57. 
 Jared v. Clements, 266. 
 Jarrett v. Hunter, 495. 
 
 Jarvis v. Birmingham Corp., 70. 
 Jay V. Johnstone, 196, 224. 
 
 — V. Robinson, 355. 
 JefEerys v. JefEerys, 27, 475. 
 Jelks V. Hayward, 541. 
 Jenkins v. Jones, 498. 
 Jenkins & Randall, Re, 131. 
 Jenks V. Clifden, 521. 
 Jenner v. Morris, 388, 418. 
 Jenner Fust v. Needham, 285. 
 Jennings v. Jennings, 459. 
 
 — V. Jordan, 280. 
 
 — V. Mather, 94. 
 Jervis v. Berridge, 482. 
 
 — V. Wolferstan, 211, 217. 
 Jervoise v. Duke of Northumber- 
 land, 24. 
 
 — V. Jervoise, 357, '358. 
 
 Jessop V. Watson, 165. 
 
 Jesus College v. Bloom, 388, 462. 
 
 Job V. Job, 194, 223, 392, 512. 
 
 — V. Potton, 464. 
 Jobson V. Palmer, 108. 
 Joel's Case, 411. 
 John V. John, 511. 
 Johnson v. Bragge, 400. 
 
 — V. Legard, 38. 
 
 — V. Mounsey, 249, 286, 462. 
 
 — V. Newnes, 526. 
 
 — V. Ogilvy, 420. 
 
 — V. Spratt's Patent, 237. 
 
 — V. Wild, 439. 
 Johnson Johnson, In re, 41. 
 Johnstone v. Baber, 535. 
 
 — V. Cox, 51. 
 
 John Street Chapel Case, 69. 
 JoUand v. Stainbridge, 263. 
 Jones, In re (1893, 2 Ch.), 317. 
 Jones V. Barker, 264. 
 
 — V. Barnett, 405. 
 
 — V. Carter, 516. 
 
 — V. Clifford, 487. 
 
 — V. Davies, 292. 
 
 — V. Foxall, 135. 
 
 — V. Gardiner, 504. 
 
 — V. How, 183. 
 
 — V. Lewis, 392. 
 
 — V. Marshall, 301. 
 
 — V. Merioneth Building 
 
 Society, 548. 
 
 — V. Morgan, 112. 
 
 — V. Palmer, 68. 
 
 — V. Powles, 11. 
 
 — V. Selby, 144. 
 
 — V. Smith, 267, 269. 
 
 — V. Tankerville, 478. 
 
 — V. Thomas, 538. 
 
 — V. Trappes, 101. 
 
 — V. Williams, 204, 207, 221. 
 
 — V. Winwood, 65. 
 Jones's Case, 523. 
 
 Jones & Roberts, In re, 314. 
 
 Jorden v. Money, 8. 
 
 Jordeson v. Sutton Gas Co., 
 
 520. 
 Jordeson's Case, 522. 
 Joselyne, Ex parte, 201. 
 Joseph, In re, 156. 
 Joseph V. Lyons, 4. 
 Joy V. Campbell, 114. 
 Joyce V. Hatton, 41. 
 Judd & Poland, In re, 507. 
 Jukes, In re, 32. 
 Jupp V. Buckwell, 356. 
 
XXVlll 
 
 INDEX TO CASES CITED. 
 
 Keaesley v. Cole, Hi. 
 
 — V. Philips, 289. 
 Keate v. Phillips, 297. 
 Keatea «. Cadogan, 409. 
 Keech v. Hall, 252. 
 
 — V. Sandford, 91. 
 Keene v. Biscoe, 239. 
 
 — V. Thomas, 311. 
 Keily v. Monck, 420. 
 Keith V. G-aneia, 252. 
 Kekewioh v. Maiming, 30. 
 Kelland v. Fulford, 164. 
 Kellook's Case, 201. 
 Kelly V. Selwyn, 50. 
 
 — V. Solari, 400. 
 Kelsey v. Kelsey, 400. 
 Kemble v. Farren, 321. 
 Kemp V. Lester, 252. 
 
 — V. Pryor, 389, 648. 
 
 — V. Westbrook, 300, 301. 
 
 — V. Wright, 256. 
 Kemp's Case, 46. 
 Kempster v. Kempster, 218. 
 Kendall, JBx parte, 228. 
 Kendall v. Hamilton, 457. 
 Kennedy v. De Trafford, 287, 464. 
 
 — u. Green, 271. 
 
 — V. Kennedy, 474. 
 
 — V. Lyell, 56. 
 Kennell v. Abbott, 403. 
 Kenny v. Wexham, 478. 
 Kensington v. Mansell, 543. 
 Kensit, In re, 141 . 
 
 Kensit v. G. E. E. Co., 522. 
 
 Kent V. Pickering, 220. 
 
 Kent County Gas Light, In re, 
 
 497. 
 Kerr v. Kerr, 56. 
 Kerr's Policy, In re, 296. 
 Kettlewell v. Watson, 90, 268, 
 
 272, 296. 
 Kevan v. Crawford, 33, 37. 
 Key V. Key, 403. 
 Kibble V. Fairthorne, 249. 
 Kidney v. Coussmaker, 179. 
 Kilford V. Blaney, 213. 
 Kilpin V. Ratley, 143. 
 King «. Bird, 252. 
 
 — V. Chick, 201, 206. 
 
 — V. Chuck, 451. 
 
 — V. Hamlet, 428. 
 
 — V. Malcott, 217. 
 
 — V. Savery, 426. 
 
 — V. Smith, 65, 518. 
 
 — V. Voss, 346. 
 Kingsman v. Kingsman, 540. 
 Kingston Cotton Co. v. Mouat, 
 
 32. 
 Kinnaird «. TroUope, 292. 
 
 Kinsman v. Rouse, 247. 
 Kintrea, Ex parte, 421. 
 Kirby v. Harrogate School Board, 
 
 514. 
 Kirk V. Clark, 36. 
 
 — V. Eddowea, 191. 
 Kirkland v. Peatfield, 249. 
 Kirkman u. Booth, 124, 125. 
 Kitson, In re, 208. 
 Knapman v. Wreford, 53. 
 Knight, In re, 88, 304. 
 Knight V. Bowyer, 56. 
 
 — V. Gardner, 313. 
 
 — V. Knight (1895, 1 Ch.), 232. 
 Knox V. Gye, 9, 111, 455. 
 
 — V. Hotham (Lord), 404. 
 
 — v. Mackinnon, 104. 
 Konig's Application, Re, 532. 
 Krell V. Henry, 394. 
 Kronheim v. Johnson, 22. 
 Kuyper's Policy Trusts, 355. 
 
 Lacey v. Hill, 458. 
 Lacon v. Allen, 297. 
 
 — V. Lacon, 519. 
 
 — V. Mertins, 482. 
 Lacy, In re, 85. 
 
 Lagunas Nitrate v. Lagunas Syn- 
 dicate, 4, 412. 
 Laing v. Eadcliffe, 119. 
 Lake, In re, 51, 105. 
 Lake v. Bell, 96. 
 
 — V. Craddock, 86. 
 
 — V. De Lambert, 97. 
 
 — v. Gribsou, 15. 
 Lamb -o. Evans, 528. 
 Lambert v. Still, 137. 
 Lamplugh v. Lamplugh, 81. 
 Lance v. Norman, 371. 
 Lancefield v. Iggulden, 218, 232. 
 Lander & Bagley's Contract, In 
 
 re, 487. 
 Landon v. Poyzer, 154. 
 Lands Allotment Co., In re, 112. 
 Lane-Fox, In re, 31. 
 Lanoy v. Duke of Athole, 229. 
 Larner u. Lamer, 353. 
 Laver v. Botham, 220. 
 Lavery v. Pursell, 483, 533. 
 Law V. Glenn, 255, 258, 259. 
 
 — V. Law, 409, 419. 
 
 Law Guarantee v. Mitcham 
 Brewery, 289. 
 
 — V. Russian Bank, 310. 
 Lawes v. Bennet, 159. 
 
INDEX TO CASES CITED. 
 
 XXIX 
 
 Lawes v. Lawes, 188, 189. 
 Lawford v. Price, 219. 
 Lawledge v. Tyndall, 317. 
 Lawrence v. Fletcher, 314. 
 
 — V. Smith, 526. 
 Lawrie v. Att.-Gen., 71. 
 
 — V. Lees, 496. 
 Laxon & Co., In re, 418. 
 Lea V. Cooke, 68. 
 Leach v. Jay, 22. 
 Leacroft v. Harris, 176. 
 Leas Hotel Case, 255, 283. 
 
 Le Brasseur & Oakley, In re, 316. 
 Lechmere v. Earl of Carlisle, 180. 
 Lee V. Abdy, 57. 
 
 — V. Binns, 221, 468. 
 
 — V. Butler, 304. 
 
 — V. Eoundwood Co., 289. 
 Leeds v. Cheetham, 393. 
 Leeds (Duke) v. Amhurst, 461. 
 Leeds Estate Co. v. Shepherd, 
 
 109. 
 Leeds Forge Case, The, 548. 
 Leeds Theatre v. Broadbent, 246. 
 Lees V. Fisher, 295. 
 
 — V. Nuttall, 425. 
 
 — V. Patterson, 562. 
 Lefroy v. Egmont, 94. 
 Legate v. Sewell, 542. 
 Legg V. Gold wire, 402. 
 
 — V. MackreU, 140. 
 Legh V. Warrington, 198. 
 Leigh V. Burnett, 91. 
 
 — V. Dickeson, 317. 
 
 — V. Leigh, 374. 
 Leigh's Estate, In re, 93. 
 Le Lievre v. Gould, 429. 
 Lemmon v. Webb, 620. 
 Lempriere v. Lange, 417. 
 Le Neve v. Le Neve, 263. 
 Leney v. Callingham, 546. 
 Leslie v.. French, 94. 
 
 — V. Young, 628. 
 
 Leslie's Hassop Estates, In re, 
 
 141. 
 Lester, Ex parte, 350. 
 L'Estrange v. L'Estrange, 236. 
 Letton's Case, 444. 
 Le Vasseur v. Soratton, 366. 
 Lever, Re, 117. 
 Lever v. Koffler, 475, 477. 
 Leveson, In re, 235. 
 Levine's Case, 427. 
 Levy V. Walker, 462. 
 Lewers v. Earl of Shaftesbury, 
 
 533. 
 Lewin's Trust, Se, 369. 
 Lewis V. James, 503. 
 
 Lewis V. Nobbs, 101. 
 
 — V. Eees, 34. 
 
 — V. Sutton, 68. 
 Lewknor v. Freeman, 32. 
 Leyland and Taylor, Se, 492. 
 Lidbitter v. Hatch, 236. 
 
 Life Association of Scotland v. 
 
 Siddall, 15, 362. 
 Life & Reversionary v. Hand in 
 
 Hand, 287. 
 Liles V. Terry, 423. 
 Lilley v. Foad, 250. 
 Lillie V. Legh, 480. 
 Lindlar's Case, 421. 
 Lindo V. Lindo, 293. 
 Lindsay Petroleum v. Hurd, 18. 
 Lindsell v. PhilHps, 249, 446. 
 Lingard v. Burnley, 46. 
 Linton v. Linton, 56. 
 Lipscomb v. Lipscomb, 229. 
 Liakeard, &c., B. C, In re, 237. 
 Lisle V. Eeeve, 238, 281. 
 Lister v. Lister Co., 276. 
 
 — V. Stubba, 131. 
 Litchfield v. Dreyfus, 427. 
 Little V. Kingswood Colliery, 
 
 524. 
 Littledale v. Lonsdale, 522. 
 Liverpool Bank v. Turner, 310. 
 Llanover v. Homfray, 544, 545. 
 Llewelliu ik Brown, 383. 
 
 — v. Cobbold, 372. 
 Lloyd v. Davies, 290. 
 
 — V. Dimmack, 546. 
 — ■ V. Grace, 486. 
 
 — V. Lloyd, 244. 
 
 — V. Nowell, 495. 
 Lloyd-George, In re, 314. 
 Lloyd-Phillips v. Davies, 73. 
 Lloyds 1). Harper, 436. 
 
 Lloyds Bank v. Bullock, 65, 66. 
 
 — V. Medway Navigation, 6, 
 
 511. 
 
 — V. Pearson, 52. 
 Loane v. Casey, 222. 
 
 Lock V. Queensland Investment 
 Co., 414. 
 
 — V. Venables, 154. 
 Lockhart v. Hardy, 291. 
 Looking v. Parker, 286. 
 Lodge's Case, 427. 
 LoflEus V. Maw, 8. 
 
 Lomas v. Graves & Co., 45. 
 London Assurance v. Mansel, 410. 
 London, Bishop of, v. Whitely, 
 
 23. 
 Loudon & Chartered Bank of 
 
 Australia v. Lempriere, 333. 
 
XXX 
 
 INDEX TO CASES CITED. 
 
 London & County Bank v. Dover, 
 285. 
 
 — V. Eatcliflfe, 506. 
 
 — V. River Plate Bank, 54, 
 
 98. 
 
 London Financial Association v. 
 Kelk, 135. 
 
 London Freehold v. Sheffield, 66. 
 
 London & Globe Case, 311. 
 
 London Joint Stock Bank v. Sim- 
 mons, 268, 302. 
 
 London & Midland Bank v. 
 Mitchell, 302. 
 
 Ijondon University v. Yarrow, 68. 
 
 Long V. Benning, 485. 
 
 Longford v. Kensington, 173. 
 
 Longman v. Bath Electric, 428. 
 
 Longmate v. Ledger, 417. 
 
 Longstaffe v. Fenwick, 107. 
 
 Lopes V. Hume-Dick, 121. 
 
 Lord V. Lee, 394. 
 
 Lord's Trustee's Case, 307, 311, 
 467. 
 
 Lorriman v. Lorriman, 344. 
 
 Loscombe v. Wintringham, 68. 
 
 l/ound V. Grimwade, 14, 420. 
 
 Lovatt V. Williamson, 8. 
 
 Lovelace d. Anson, 154. 
 
 Lovett V. Lovett, 348. 
 
 Low V. Bouverie, 429. 
 
 Lowe V. Dixon, 4S1. 
 
 Lowes V. Lush, 485. 
 
 lowis V. Rumney, 197. 
 
 Lowther v. Fraser, 215. 
 
 — V. Heaver, 325. 
 Loyd V. Spillett, 155. 
 Lucas V. Harris, 55. 
 
 — V. James, 495. 
 
 — V. Lucas, 358. 
 
 Luddy's Trustee «>. Peard, 109, 
 
 426. 
 Lumb V. Milnes, 330. 
 Lumley, In re, 136, 338. 
 Lumley v. Brooks, 316. 
 
 — V. Wagner, 475, 515. 
 Lupton V. White, 103. 
 Lush's Trusts, In re, 14, 369. 
 Lutwioh's Case, 281. 
 Lynde's Case, 412. 
 
 Lynes, In re, 336. 
 Lyon V. Home, 423. 
 
 — V. Tweddell, 453. 
 Lyons v. Blenkin, 374. 
 
 — V. Wilkins, 525. 
 
 M., In re, 386. 
 *Macbryde v. Weekes, 491. 
 Maofarlane v. Lister, 314. 
 Maokay v. Douglas, 32. 
 Mackenzie v. Edwards-Moss, 343. 
 
 — V. Robinson, 261. 
 Mackinley v. Bates, 154. 
 Maokinnon v. Stewart, 44. 
 Mackintosh v. Pogose, 40. 
 Mackreth v. Symmons, 87. 
 Macleod v. Drummond, 126. 
 
 — V. Jones, 258. 
 Maomillau v. Dent, 530. 
 Macpherson v. Watt, 426. 
 Maddever, In re, 9. 
 Maddison v. Chapman, 87. 
 Maddock, In re, 7, 212. 
 Madeley v. Booth, 488. 
 Magnus, In re, 41. 
 
 Magnus V. Queensland National 
 Bani, 293. 
 
 Makings i). Makings, 225. 
 
 Makins v. Percy Ibotson, 255. 
 
 Maiden v. Menill, 395, 398. 
 
 Maling v. Hill, 500. 
 
 Mallott V. Wilson, 35, 99. 
 
 Manchester Royal Infirmary, In 
 re, 120. 
 
 Manchester Ship Canal v. Man- 
 chester Racecourse, 494. 
 
 Manchester, &c.. Banking Co. v. 
 Parkinson, 6. 
 
 Mander v. Falcke, 513. 
 
 Manisty v. Churchill, 438. 
 
 Manks v. Whiteley, 283 add. 
 
 Mann, S.e, 68. 
 
 Manning, Ex parte, 504. 
 
 Mansell v. ManseU, 392. 
 
 — o. Valley Co., 527. 
 Manser v. Back, 481. 
 Mansergh v. Campbell, 151. 
 Manson v. Baillie, 100. 
 Maori Case, The, 58. 
 Maple's Case, 528. 
 Margetson & Jones, In re, 316. 
 Marker v. Kekewich, 100. 
 Marriage Neave & Co., In re, 
 
 307. 
 Marriott v. East Grinstead, 519. 
 Marsh v. Joseph, 279. 
 
 — V. Keating, 105, 461. 
 Marsh & Granville, In re, 496. 
 Marshall v. Berridge, 487. 
 
 — V. Colman, 448. 
 
 — v. Cruttwell, 82. 
 
 * Note. — Cases beginning Mao, when spelt M- or Mc (and not Mac), 
 are inserted lower down in this table of cases. 
 
INDEX TO CASES CITED. 
 
 XXXI 
 
 Marshall v. Shrewsbury, 282. 
 
 — V. South Staffs. Tram. Co., 
 283. 
 
 — V. Watson, 449. 
 Marshfield v. Hutohings, 244. 
 Martha Baggs, In re, 386. 
 Martin, v. Laoon, 122. 
 
 — V, Nutkin, 514. 
 
 — V. Pycroft, 487. 
 
 — V. Spicer, 434. 
 
 — d. Tregonwell v. Strahan, 
 
 341. 
 
 — V. Trimmer, 168. 
 Martin's Case, 449. 
 Marwick v. Hardingham, 247. 
 
 — V. Lord Thurlow, 283. 
 Maskell & Goldfinch, In re, 496. 
 Maskelyne & Cooke's Case, 44. 
 Mason, Re, 458. 
 
 Mason v. Mercer, 112. 
 
 — 1). Westoby, 255. 
 Mason Orphanage, Se, 69. 
 Masson v. De Fries, 231, 329, 358, 
 
 359. 
 Matheson v. Ludwig, 457. 
 Mathew v. Brise, 373. 
 Mathewman's Case, 334. 
 Matthews v. Euggles-Brise, 117. 
 
 — V. Small wood, 324. 
 
 — V. Usher, 6. 
 
 — V. Whittle, 347. 
 Maxfield v. Burton, 12. 
 Maxwell v. Maxwell, 175. 
 
 — V. Montacute, 481. 
 
 — V. WettenhaU, 151. 
 May V. Chapman, 54. 
 
 — V. Piatt, 401, 412. 
 
 — V. Thomson, 487. 
 Mayer v. Murray, 259. 
 Mayfair Property Co. v. John- 
 son, 534. 
 
 Mayhew v. Crickett, 446. 
 M'Alpine v. Moore, 74. 
 M'Bean v. Deane, 235. 
 McCarthy v. Capital and Coun- 
 ties Bank, 303. 
 M'Donnel v. Hesilrige, 34. 
 M'Graths, Re, 374. 
 McGruther's Case, 500. 
 M'Henry, In re, 250. 
 M'Henry v. Da vies, 333. 
 McLaughlin v. A.-G., 67. 
 
 — V. Penny, 224. 
 McManus v. Cooke, 483. 
 M'Myn, Re, 438. 
 jIcNeillie v. Acton, 127. 
 At'Queen v. Farquhar, 489. 
 M'Rae, Re, 209. 
 
 Measures, Ld. v. Measures, 514, 
 
 524. 
 Meech, In re, 71. 
 Megit V. Johnson, 85. 
 Melbourne Bank Case, 287. 
 Mellin v. White, 524. 
 Mellison, In re, 207. 
 Mellor V. South Australia, 217. 
 Mellors's Trustee v. Maas, 308. 
 Meluish v. Milton, 550. 
 Menck's Case, 500. 
 Mendes v. Guedalla, 101. 
 Mendelssohn, In re, 207. 
 Menier's Case, 415. 
 Mercantile Investment Co. v. 
 
 Eiver Plate Co., 18. 
 Mercier v. Mercier, 81, 112, 332. 
 Meredith v. Facey, 44. 
 Merryweather v. Moore, 516. 
 
 — V. Nixan, 440. 
 
 Mersey Docks, Ex parte, 538. 
 Mersey Steel Co. v. Naylor, 206, 
 
 467. 
 Metcalfe v. Hutchinson, 199. 
 Metropolitan Asylum v. Hill, 
 
 520. 
 Meux V. City Electric Lighting 
 
 Co., 520, 533. 
 Michell V. Michell, 342. 
 Michelmore v. Mudge, 367. 
 Micklethwaite v. Micklethwaite, 
 
 518. 
 Middlemas v. Stevens, 92. 
 Middleton v. Moore, 153. 
 
 — V. Spicer, 84. 
 Mid-Kent Fruit Factory, In re, 
 
 303, 467, 468. 
 
 Midland E. C. v. Silvester, 436. 
 
 Midwinter v. Midwinter, 344. 
 
 Midwood V. Manchester Corpora- 
 tion, 520. 
 
 Mignan v. Parry, 402. 
 
 Mildmay v. Quicke, 164. 
 
 Miles V. Harrison, 76. 
 
 Miller, In re, 193, 205. 
 
 Miller v. Collins, 167. 
 
 — V. Daintree, 403. 
 
 — , . Sharp, 483. 
 
 — -e. Warmington, 534. 
 Millett V. Davey, 259, 262. 
 Mills, In re, 44, 51. 
 Mills V. Farmer, 74. 
 
 — p. Fowkes, 470. 
 
 — V. Fox, 484. 
 
 — V. Haywood, 491. 
 
 — V. Johnston, 404. 
 Milner's Settlement, In re, 236, 
 
 341. 
 Milnes v. Gery, 495. 
 
XXXll 
 
 INDEX TO CASES CITED. 
 
 Milroy v. Lord, 31. 
 Minet v. Leman, 169. 
 Mirams, In re, 55. 
 Mirehouse v. Scaife, 218. 
 Mitchell, Ex parte, 377. 
 Mitchell V. Hayne, 538. 
 
 — V. Homfray, 409, 423. 
 Mitchell's Case, 197. 
 Mocatta v. Bell, 303. 
 Moggridge v. Hall, 545. 
 
 — V. Thackwell, 71. 
 Mogridge v. Clapp, 272. 
 
 Mogul SS. Co. V. Maegregor, 
 
 524. 
 Molineux v. Evered, 432. 
 Molony v. Brooke, 221. 
 Molton V. Camroux, 415. 
 Molyneux v. Hawtrey, 500. 
 
 — V. Richard, 475. 
 
 — V. Usher, 6. 
 Molyneux'a Case, 415. 
 Monckton & Gilzean, In re, 502, 
 
 507. 
 Monetary Adv. Co. v. Cater, 307. 
 Monro v. Taylor, 488. 
 Montacute v. Maxwell, 36. 
 Montagu, In re, 93. 
 Montagu v. Sandwich, 182. 
 Montenore v. Guedalla, 52. 
 Moodie v. Bannister, 197. 
 (Moody V. Penfold, 84. 
 Moore, In re (21 Ch. D.), 98. 
 Moore v. Darton, 143, 144. 
 
 — V. Dixon, 209. 
 
 — V. Knight, 451. 
 
 — V. Moore, 144. 
 
 — V. Shelley, 254. 
 
 — V. Smee, 324. 
 
 — V. Somerset, 71. 
 
 — V. Wilson, 123. 
 Mooreoroft v. Dowding, 320. 
 Moors «. Marriott, 193. 
 Mordaunt Brothers ii. British Oil 
 
 Co., 304. 
 Morgan v. Higgina, 424. 
 
 — V. Hill, 439. 
 
 — V. Mallesou, 143. 
 
 — V. Richardson, 147. 
 
 — V. Rowlands, 250. 
 
 Morice v. Bishop of Durham, 70. 
 Morley v. Bird, 17, 86. 
 
 — v, Loughman, 416. 
 
 — V. Morley, 103. 
 Morrell v. Morrell, 550. 
 Morret v. Paske, 274. 
 Morris v. Chambers, 88. 
 
 — V. Morris, 220. 
 Morrison v. Arnold, 549. 
 Mortimer v. Bell, 429. 
 
 Mortimer v. Capper, 400. 
 Mortlock v.. BuUer, 490, 493. 
 Mosely v. Koffyfontein Mines, 
 
 414. 
 Moses, In re, 124. 
 Moss, Ex parte, 295. 
 Moss, In re, 436. 
 Mouflet V. Cole, 514. 
 Moulis V. Owen, 54. 
 Moxon V. Payne, 409. 
 Mucklow V. Fuller, 100. 
 Mullens v. MUler, 486. 
 MuUer ». Trafford, 161, 514. 
 Mullings -0. Trinder, 496. 
 MuUina v. Smith, 152. 
 Munns v. Burn, 135. 
 Murray v. Barlee, 195, 327, 334. 
 
 — V. Bogue, 527. 
 
 — V. Parker, 400. 
 
 Mutlow V. Bigg, 166, 168, 179. 
 Mutton V. Peat, 469, 470. 
 Myers, In re, 430. 
 
 N. S. W. Bank V. O'Connor, 300. 
 Nail V. Punter, 14. 
 Nanson v. Gordon, 458. 
 Nash V. Ash, 450. 
 
 — u. Calthorpe, 372, 413. 
 
 — V. De Freville, 517. 
 
 — -u. Dix, 492. 
 
 National Corporation, Re, 206. 
 National Bank v. United Hand in 
 Hand Co., 258. 
 
 — Permanent Society, In re, 
 
 120. 
 
 — Provincial Bank v. Marshall^ 
 
 515. 
 
 — Trustees u. General Finance, 
 
 108. 
 Native Lands Case, The, 91. 
 Neal, Ex parte, 207. 
 Neale v. Neale, 397. 
 Nedby d. Nedby, 422. 
 Neesom -v, Clarkson, 616. 
 Neilson v. Betta, 461. 
 
 — V. Mossend Iron Co., 452. 
 Nelson v. Faber, 466. 
 
 — V. Stooker, 372. 
 
 Nelson Sons v. Nelson Line, 49^ 
 Nevill v. Snelling, 426. 
 
 — V. Wilkinson, 484. 
 Nevill's Case, 444. 
 
 Nevin (Violet), In re, 376. 
 New, Re, 122. 
 Newbigging v. Adam, 408. 
 
INDEX TO CASES CITED. 
 
 xxxni 
 
 Newbould v. Smith, 250. 
 Newdigate v. Hope, 474. 
 Newfoundland Government v, 
 
 Newfoundland R. C, 465. 
 New Land *Co. & Gray, In re, 
 
 497. 
 Newlands v. Paynter, 331. 
 Newlove v. Shrewsbury, 307. 
 Newman, In re, 424. 
 Newman v. Newman, 52. 
 
 — V. Selfe, 285. 
 Newstead v. Searles, 38. 
 
 New York Breweries Case, The, 
 
 352. 
 Newton v. Charlton, 437. 
 
 — V. Newton, 12, 511. 
 
 — V. Rolfe, 128. 
 
 — V. Scott, 202. 
 
 — V. Sherry, 211. 
 Newton (Infants), In re, 376. 
 Nicholas v. Ridley, 277. 
 Nicholson, In re, 123. 
 Nicholson v. Drury Buildings, 
 
 343. 
 
 — V. Hooper, 92. 
 
 — V. Revill, 443. 
 
 — V. Smith, 496. 
 Nickalls V. Merry, 418. 
 Nickels v. Hancock, 493. 
 
 — V. Nickels, 147. 
 Nicol V. Nicol, 329. 
 Niell V. Morley, 415. 
 Nightingale v. Reynolds, 218. 
 Nisbett & Potts, In re, 499. 
 Nives «'. Nives, 88. 
 
 Nixon u. Cameron, 126. 
 Noble V. Brett, 147. 
 
 — V. Edwards, 506. 
 Noel V. Bewlay, 348. 
 Nordenfelt v. Maxim Co., 420. 
 Norfolk V. Herries, 94. 
 Norris, Me, 107. 
 
 Norris v. Frazer, 7, 60. 
 
 — V. Jackson, 495. 
 
 — V. Wilkinson, 297. 
 
 North London R. Co. v. G. N. 
 
 Rail. Co., 511. 
 Norton v. Bell, 423. 
 
 — V. Compton, 222. 
 
 — V. Florence Land Co., 19. 
 Norvell, Bm parte, 485. 
 
 Nott V. Dunsany, 182. 
 Nottingham, Ex parte, 361. 
 Nottingham Co. v. Butler, 499. 
 Nottley V. Palmer, 176. 
 Nov V. Ellis, 95. 
 
 — V. Pollock, 253, 277. 
 Noyes v. Crawley, 456. 
 
 Nutt V. Easton, 423. 
 Nuttall V. Staunton, 437. 
 Nyberg v. Handelaar, 302. 
 
 Oakes v. Turquand, 412. 
 Oatway, In re, 471. 
 Obee V. Bishop, 112. 
 Obert V. Barrow, 70. 
 Oohsenbein v. Papelier, 388. 
 O'Connor v. Spaight, 462. 
 Oddy, In re, 141. 
 Odessa Tramways v . Mendel, 476 . 
 Official Receiver, Ex parte (1907, 
 1 K. B. 149), 497. 
 
 — Ex parte (1907, 1 K. B. 865), 
 
 94. 
 
 — Ex parte (1911, 1 Ch.), 497. 
 
 — V. Tailby, 46. 
 Ogden V. Fossick, 475. 
 Oglander o. Baston, 367. 
 Ogsdon v. Aberdeen Tramways, 
 
 522. 
 Olde V. Olde, 507. 
 Oldfield V. Oldfield, 58. 
 Oldham v. Hughes, 167. 
 Olive V. Westerman, 105. 
 Oliver v. Brickland, 183. 
 
 — V. Hinton, 9, 268, 278, 298, 
 
 517. 
 Oliver's Settlement, In re, 173. 
 OUey V. Fisher, 402. 
 Oppenheim v. Schweder, 149. 
 Orby V. Trigg, 239. 
 Orchis, The, 310. 
 
 Oriental Bank, In re, 205, 446. 
 Ormes v. Beadel, 409. 
 Ormrod v. Wilkinson, 68. 
 Orr V. Diaper, 542. 
 Orrell v. Orrell, 175. 
 Osborne v. Williams, 421. 
 Osborne's Case, 225, 525. 
 Otter V. Vaux, 243. 
 Otway V. Otway, 322. 
 Overton v. Banister, 14. 
 Owen, In re, 196. 
 Owen V. Cronk, 129. 
 
 — V. Delamere, 126, 208. 
 
 — V. Gibbons, 218. 
 
 — V. Homan, 435. 
 
 — V. Richmond, 134. 
 Oxford's (Earl of) Case, 511. 
 
XXXIV 
 
 INDEX TO CASES CITED. 
 
 Paddon v. Eiohardson, 119. 
 Padwiek v. Stanley, 437. 
 Pagani, Se, 385. 
 Page V. Linwood, 260. 
 Paget v. Ede, 18. 
 
 — V. Marshall, 401. 
 
 — V. Paget, 293, 342. 
 Paine v. Meller, 393. 
 Palllser v. Gurney, 335, 348. 
 Palmer, In re, 385. 
 Palmer v. Crawfurd, 150. 
 
 — V. Emerson, 106. 
 
 — V. Hendrie, 291. 
 
 — V. Noake, 432. 
 
 — V. Eleh, 86. 
 
 — V. Young, 92. 
 Panes v. Att.-Gen., 84. 
 Pape V. Westaoott, 279. 
 PapiUon i;. Voice, 26. 
 Paquin v. Beauclerk, 349. 
 
 — V. Snary, 55. 
 Pardo V. Bingham, 195. 
 
 Paris Skating Kink Co., In re, 
 
 57. 
 Parker, In re, 441. 
 Parker v. Clarke, 261. 
 
 — V. First Avenue Co., 521. 
 
 — V. Lewis, 408. 
 
 — V. M'Kenna, 109, 461. 
 Parker's Trust, In re, 139. 
 Parkers, In re, 446, 458. 
 Parkes v. White, 135, 340. 
 Park Gate Waggon Works Co., 
 
 In re, 57. 
 Parkin v. Thorold, 491. 
 Parkington v. Heywood, 206. 
 Parnell v. Kingston, 83. 
 Parr's Bank v. Yates, 251, 447. 
 Parry, Re, 39. 
 Parry & Hopkin, He, 519. 
 Partington, Re, 102. 
 Partridge v. Partridge, 417. 
 Pasmore v. Oswaldtwistle D. C, 
 
 523 
 Patch V. Ward, 261, 398. 
 
 — V. Wild, 260. 
 Patman v. Ilarland, 269. 
 Patrick v. Simpson, 83. 
 Pattissou V. Gilford, 546. 
 Pattle u. Hornibrook, 480. 
 Paul V. Paul, 27. 
 
 Pawley v. Pawley, 136, 342. 
 Pawley & L. & P. Bank, In re, 
 
 95. 
 Payne ■». Mortimer, 193. 
 Peachy v. Duke of Somerset, 325. 
 Peacock v. Monk, 330. 
 
 — i). Penson, 516. 
 
 Pearce, Ex 'parte, 207. 
 Pearee, In re, 201, 232, 241. 
 Pearce v. Bastable'a Trustee, 
 485. 
 
 — V. Bullard, 201,*498. 
 
 — V. Crutchfield, 378. 
 
 — V, Gardner, 480. 
 
 — V. Marsh, 95. 
 
 — V. Morris, 245. 
 
 Pearson v. AJnicable Assurance, 
 29. 
 
 — V. Benson, 233. 
 
 — V. Cardon, 539. 
 
 — V. Wilcook, 208. 
 Pease v. Courtney, 480. 
 
 — V. Jackson, 276. 
 
 — V. Pattinson, 68. 
 Peat V. Clayton, 297. 
 Pedder's Settlement, Re, 168. 
 Peed's Case, 108. 
 
 Peek V. Gurney, 408. 
 Peers v. Lambert, 489. 
 Pegler v. Gillatt, 175. 
 
 — V. White, 493. 
 
 Peltou Brothers v. Harrison, 336, 
 Pembroke v. Friend, 215. 
 Pendarves v. Hartley, 385. 
 Penn v. Lord Baltimore, 17, 479. 
 Pennell v. Franklin, 107. 
 Peover v. Hassell, 61. 
 Perceval v. Phipps, 530. 
 Percival o. Dunn, 49. 
 Percy v. N. P. Bank, 442. 
 Perfect v. Lane, 426, 492. 
 Perham v. Kempster, 270. 
 Perkins v. Bagot, 431. 
 
 — v. Ede, 489. 
 Perry v. Holl, 66, 272. 
 Perry-Herrick v. Attwood, 299. 
 Persse v. Persse, 398. 
 
 Petre d. Petre, 379. 
 Pettiward v. Prescott, 15. 
 Petty V. Taylor, 527. 
 Peyton v. Bury, 156. 
 Phillipo V. Munnings, 111. 
 Phillips, In re, 51, 256. 
 Phillips, ISx parte, 169, 376. 
 Phillips ». Llano ver, 545. 
 
 — 0. Miller, 265, 500. 
 
 — u. Phillips (31 L. J. Ch.), 
 
 13. 
 
 — V. Phillips (9 Hare), 462. 
 
 — V. Phillips (29 Ch. Div.),91. 
 
 — V. Silvester, 503. 
 Phillipson v. Kerry, 403, 423. 
 Phipps V. Lovegrove, 51. 
 
 — V. Steward, 542. 
 Phoenix OfHce v. Spooner, 438. 
 Picard v. Hine, 477. 
 
INDEX TO CASES CITED. 
 
 XXXT 
 
 Kckard v. Sears, 428. 
 
 Pickering v. Ilfracombe E. C, 
 
 74. 
 Piokersgill v. Rodger, 177. 
 Pidcook V. Bishop, 435. 
 Pierse v. Waring, 422. 
 Piggott V. Straton, 433, 516. 
 Pike V. Cave, 353. 
 
 — V. Fitzgibbon, 3341 
 Pilcher v. Arden, 313. 
 Pile V. Pile, 289. 
 PUgrem v. Pilgrem, 91. 
 Pini V. Roncoroni, 450. 
 Piper V. Piper, 346. 
 Pitman v. Holborrow, 150. 
 
 — V. Pitman, 158. 
 
 Pitt V. Cholmondeley, 463. 
 
 — V. Pitt, 81. 
 Pizzi, In re, 501. 
 Piatt, Re, 382. 
 Piatt V. Mendel, 244. 
 Playing Cards Case, 531. 
 Pledge V. White, 279. 
 Plowden o. Gayford, 339. 
 Plumb u. Fluitt, 267. 
 Plumtree's Marriage Settlement, 
 
 In re, 182, 183. 
 Plunket V. Lewis, 190. 
 
 — V. Penaon, 192. 
 Podmore v. Gunning, 7. 
 Pole V. Pole, 93. 
 Pollard, Mx 'parte, 18. 
 Pollard, In re, 201. 
 Pollard V. Greenvil, 391. 
 
 — V. Photographic Co., 529. 
 Pollard's Settlement, In re, 341. 
 Pollock V. Rabbits, 503. 
 
 — V. Worrall, 187. 
 Ponsford v. Union Bank, 45, 303. 
 Pontypool Guardians v. Buck, 81. 
 Pooley V. Quilter, 109. 
 
 Pope, In re, 202, 254, 256. 
 Pope's Contract, In re, 121, Add. 
 Porte V. Williams, 146. 
 Porter v. Lopes, 536. 
 
 — V. Moore, 410. 
 
 Portsea Island v. Barclay, 129. 
 Post V. Marsh, 491. 
 Potter V. Sanders, 263. 
 Pottinger, Ex parte, 205. 
 Potts, In re, 202. 
 Poulter V. ShackeU, 369, 467. 
 Pound & Co., In re H., 283. 
 Powell V. Birmingham, 532. 
 
 — V. Glover, 109. 
 — li V- Hemsley, 610. 
 
 — V. Morgan, 15S. 
 
 — V. Thomas, 14. 
 Power V. Banks, 131. 
 
 Power V. Hayne, 150. 
 Powles V. Hargreaves, 472. 
 Powys V. Blagrave, 519. 
 
 — V. Mansfield, 188. 
 Poyzer, In re, 154. 
 Pratt V. Inman, 205. 
 Prescott V. Phipps, 246. 
 Erestou «. Tunbridge Wells, 255, 
 
 259. 
 Preston's Trustee v. Cooke, 497, 
 Price, In re, 115. 
 Price V. Bury, 294. 
 
 — V. Dyer, 488. 
 
 — V, Jenkins, 34. 
 
 — V. John, 216. 
 
 — V. Macauiay, 490. 
 
 — V. Neault, 428. 
 
 — ». North, 198. 
 
 — V. Price, 115, 199, 467. 
 Priddy v. Rose, 133. 
 Priest 1). Uppleby, 131. 
 Priestley v. Ellis, 43. 
 Pringle v. Gloag, 466. 
 Probert v. Clifford, 231. 
 Prodgers v. Langham, 33. 
 Pressor v. Rice, 266. 
 
 — V. Watts, 269. 
 
 Protector Endowment Co. v. 
 
 Grice, 256, 321. 
 Prowse V. Abingdon, 234. 
 Prudential Ass. Co. v. Knott, 
 
 512. 
 Pryce, In re, 219. 
 Pryse, In re, 98. 
 Pryterch v. Williams, 254. 
 Pudsey Gas v. Bradford Corp., 
 
 520. 
 Pugh V. Heath, 248. 
 PuUen V. Ready, 397. 
 Pulman v. Meadows, 221. 
 Pulsford V. Devenish, 211. 
 Pulteney v. Darlington, 165, 168. 
 
 — V. Warren, 388. 
 Pulvertoft V. Pulvertoft, 34. 
 Pumfrey v. Fryer, 187. 
 
 Pump House Hotel Case, The, 48. 
 Purcell V. Macnamara, 238. 
 Purdew v. Jackson, 363. 
 Pusey V. Desbouverie, 397. 
 
 — V. Pusey, 478. 
 Pye, Ex parte, 187. 
 Pye V. Daubuz, 405. 
 
 — V. Pye, 329. 
 Pye's Case, 321. 
 Pyle V. Pyle, 160. 
 Pyle Works, In re, 237. 
 Pym V. Blackburn, 393. 
 
 — V. Lockyer, 190. 
 Pyrke v. Waddingham, 496. 
 
XXXVl 
 
 INDEX TO CASES CITED. 
 
 QuAETBEMAiNE's Case, 201. 
 Queeusberry (Duke) v. ShebJ 
 
 beate, 530. 
 Quioke, In re, 161. 
 
 Rabbidge, Ex parte, 485. 
 Raby v. Ridehalgh, 133. 
 RadelifBe, In re, 194. 
 Radoliffe v. Bewea, 431. 
 
 — V. Rushvvorth, 460. 
 Raffety v. King, 248. 
 
 — V. Sohofield, 325. 
 Raggett, In re, 280. 
 Rainsford's Case, 428. 
 Rains v. Buxton, 9. 
 Ramsay v. Gilchrist, 73. 
 Ramsden v. Dyson, 93. 
 Ramskill v. Edwards, 440. 
 Rand v. Cartwriglit, 241. 
 Randall v. Morgan, 22. 
 
 — V. Russell, 91. 
 Randell, In re, 72. 
 Randell v. Dixon, 72. 
 Ranelagh's Will, In re, 91. 
 Rankin v. Lay, 479. 
 Raper's Case, 285. 
 Ratcliff, In re, 98, 139. 
 Ratcliffe v. Barnard, 278. 
 Ravald v. Russell, 241. 
 Rawley v. Rawley, 468. 
 Rawlina v. Wickham, 409, 453. 
 Rawson v. Samuel, 465. 
 Eawstone v. Parr, 401, 435. 
 Ray, Re, 383. 
 
 Ray V. Grant, 185. 
 Raybould v. Turner, 128. 
 Rayner v. Rayner, 121. 
 Read v. Brookman, 390. 
 Reddaway v. Banliam, 530, 532. 
 Reddiugton v. Reddington, 81. 
 Rede v. Oakes, 104, 492. 
 Redfern v. Bryning, 403. 
 Redgrave v. Hurd, 406. 
 Reed v. Norris, 441. 
 Reea v. Bernardy, 56, 411. 
 Reese River v. Smitli, 413. 
 Reeve v. Att.-Gen., 281. 
 
 — V. Jennings, 512. 
 Reeves v. Barlow, 309. 
 
 — V. Butcher, 245. 
 Reg. V. Gyngall, 374. 
 
 — ('. Leresehe, 344. 
 
 Reg. V. London (Lord Mayor), 
 
 354. 
 Reid V. BiokerstafE, 500, 501. 
 
 — V. Reid, 347, 370. 
 Reis, In re, 41. 
 
 Renals v. Cowlishaw, 514. 
 Rendall v. Blair, 69. 
 Renshaw -v. Queen Anne's Man- 
 sions, 450. 
 Rex V. Gyngall, 374. 
 
 — V. James, 353. 
 
 — V. Sutton, 373. 
 Reynard v. Arnold, 161. 
 Reynell v. Sprye, 397. 
 Reynolds v. Godlee, 164. 
 Rhoades, In re, 220. 
 Rhodes, Re, 388. 
 Rhodes v. Bate, 423. 
 
 — V. Muswell Hill, 155. 
 
 — e. Rhodes, 383, 550. 
 
 — V. Sugden, 313. 
 Rice V. Noakes, 239. 
 
 — V. Rice, 10. 
 
 Rich V. Cocksll, 174, 332. 
 Richard & Great Weateru R. C, 
 
 In re, 504. 
 Richards ». Chambers, 364. 
 
 — V. Delbridge, 31. 
 Richardson, In re, 437. 
 Richardson v. Le Maitre, 450. 
 
 — V. Smallwood, 32. 
 
 — V. Smith, 495. 
 Richeraon, Re, 164. 
 Richmond v. White, 220. 
 Riekard v. Barret, 232. 
 Riokett V. Enfield Church- 
 wardens, 515. 
 
 — V. Eickett, 112. 
 Ridd V. Thorne, 456. 
 Rider v. Kidder, 80. 
 Ridges V. Morrison, 186. 
 Ridler v. Ridler, 32. 
 Ridley v. Ridley, 222. 
 Ridout V. Fowler, 494. 
 
 — V. Lewis, 357. 
 Rigby V. Bennett, 434. 
 
 — V. Great Western R. C, 642. 
 Riley & Streatfield's Contract, In 
 
 re, 509. 
 Rimmer v. Webster, 10. 
 Ripon City, The, 311. 
 Ritson V. Ritson, 216. 
 Rivis V. Watson, 535. 
 Roach V. Trood, 431. 
 Robb V. Green, 524. 
 Robbins v. Alexander, 194, 220. 
 
 — V. Legge, 149. 
 
 — • V. Whyte, 6, 253. 
 Roberts v. Croft, 297. 
 
INDEX TO CASES CITED. 
 
 XXX Vll 
 
 Roberts v. Crowe, 444. 
 
 — V. Roberts, 233, 397, 421. 
 
 — V. Tunstall, 15. 
 Robins v. Gray, 311. 
 Robinson, In re, 55, 57, 331. 
 Robinson v. Ashton, 451. 
 
 — V. Brewery Co., 428. 
 
 — V. CMc, Ltd., 255. 
 
 — V. Harkin, 116, 439. 
 
 — V. Lynes, 336. 
 
 — Y.. Mollett, 426. 
 
 — u. Wheelwright, 171. 
 
 — V. Wilson, 438. 
 
 — V. Workington Corporation. 
 
 523. 
 Robson V. Plight, 140. 
 
 — V. Smith, 275. 
 Roch V. Cullen, 186. 
 Rochester (Bishop) v. Le Fanu, 
 
 154. 
 Rodiok V. Gandel, 49. 
 Roe V. Pogson, 226. 
 Roger Cholmeley's School v. 
 
 SeweU, 324. 
 Rogers v. Hosegood, 513. 
 
 — V. Humphrey, 254. 
 
 — V. Ingham, 396. 
 
 — V. Jones, 177. 
 
 — V. Rice, 324. 
 Rolfe V. Gregory, 130. 
 RoUand v. Hart, 263. 
 Rolls V. Pearce, 144. 
 Rolt V. Hopkinson, 274. 
 Rooke V. Dawaon, 69. 
 Roots V. Williamson, 12. 
 Roper V. Doncaster, 337. 
 
 — V. Ryland, 77. 
 
 Rosefield v. Prov. Union Bank, 
 
 306. 
 Roas V. Buxton, 316. 
 
 — V. White, 455. 
 Ross's Case, 27. 
 
 Ross's Trusts, In re, 340. 
 Roaaiter v. Miller, 495. 
 Rourke v. Robinson, 300, 301. 
 Rouse V. Bradford Bank, 443, 
 
 471. 
 Routledge, In re, 140. 
 Rowbotham v. Dunnett, 60. 
 Rowe, In re, 469. 
 Rowe V. Gough, 226. 
 
 — V. Wood, 256, 259. 
 Rowlands v. Evans, 453. 
 Rowley v. Adams, 114. 
 
 - — V. Ginnever, 91. 
 Rowlls V. Bebb, 124. 
 Rowsell V. Morris, 194. 
 Roxburghe v. Cox, 55, 465. 
 
 Royal Bristol Society v. Bomash, 
 
 490, 503. 
 Royal British Bank v. Turquand, 
 
 271. 
 Royal Corsets Case, 532. 
 Roylance v. Lightfoot, 237, 248. 
 Rudd V. Lascelles, 490, 508. 
 Rmnney & Smith, In re, 65. 
 Rush V. Lucas, 323. 
 Rushmer v. Polsue, 521. 
 Russell, Sx parte, 33. 
 RusseU, In re, 424. 
 Russell V. Jaekson, 60. 
 — V. Russell, 294. 
 Ruther V. Ruther, 345. 
 Rutter «;. Everett, 50. 
 Ryan v. Mutual Tontine, 475. 
 Ryder, He, 385. 
 Ryland, Me, 77. 
 
 Saccharin Corporation Case, 
 
 533. 
 Saokville-West v. Att.-Gen., 544. 
 Sadd V. GrifBn, 316. 
 Sadler v. Cobb & Co., 427. 
 
 — V. Worley, 283. 
 Saffron Waldeu v. Rayner, 51. 
 Sainter v. Ferguson, 321. 
 Salaman, Bx parte, 41. 
 
 Sale V. Moore, 59. 
 Salmon v. Duucombe, 1. 
 
 — V. Matthews, 253. 
 Salomon v. Salomon & Co., 414, 
 Salt, £,e, 386. 
 
 Salt V. Northampton, 44, 83, 238, 
 257. 
 
 — V. Pym, 550. 
 Salusbury v. Denton, 71. 
 Sampson & Wall, In re, 378. 
 Samuel v. Howarth, 442. 
 
 — V. Newbold, 437. 
 
 — V. Samuel, 322, 325. 
 Samuel Allen, In re, 10. 
 Sandbaoh & Edmundson'a Con- 
 tract, In re, 486. 
 
 Sander v. HeathHeld, 222. 
 Sanders v. Sanders, 196, 197. 
 Sanders-Clark's Case, 521. 
 Sanderson's Trust, In re, 59. 
 Sandon v. Hooper, 257, 259. 
 Sanguinetti v. Stuokey's Bank, 
 
 40. 
 Sankey Brook Co., In re, 237. 
 Sansom & Narbethj In re, 503. 
 Santley v. Wilde, 245. 
 
xxxvm 
 
 INDEX TO CASES CITED. 
 
 Sass, In re, 436, 446. 
 Saull V. Browne, S12. 
 Saumarez, In re, 45. 
 Saunders, In re, 55. 
 Saunders, Ex parte, 55. 
 Saunders v. Dehew, H. 
 
 — V. Shafto, 431. 
 
 — V. Vautier, 75. 
 Saunders-Davies v. Saunders- 
 
 Davies, 218. 
 Savery v. King, 109, 398. 
 Savile v. Drax, 296. 
 Sawyer v. Sawyer, 117, 136, 334. 
 Sayer v. Sayer, 72. 
 Sayre v. Hughes, 80. 
 Soawin v. Soawin, 82. 
 Scholey v. Peck, 314. 
 Sehove v. Sohmincke, 528. 
 Schroder v. Schroder, 175. 
 Soobie v. Collins, 290. 
 Scotney v. Lomer, 103. 
 Scott V. Beecher, 215. 
 
 — V. Coulson, 400. 
 
 — V. Hengler, 418. 
 
 — V. Jones, 196. 
 
 — V. Leak, 149. 
 
 — V. Lyon, 130. 
 
 — V. Morley, 195, 336. 
 - — V. Rayment, 448. 
 
 — V. Scott, 155. 
 
 — V. Spashett, 360, 370. 
 
 — V. Surman, 132. 
 
 Scott & Alvarez's Contract, In re, 
 
 509. 
 Scottish Equitable Life, Re, 80. 
 Scoworoft, Se, 68. 
 Scriren v. Tapley, 368. 
 Scrivener v. Aldridge, 225. 
 Scudamore v. Scudamore, 162. 
 Seabrooke, In re, 219, 333. 
 Seager-Hunt, In re, 383. 
 Searle v. Law, 28. 
 Seaton v. Burnand, 435. 
 
 — V. Seaton, 364, 378. 
 Seaward v. Paterson, 525. 
 Seddon v. Salt Co., 412. 
 Seear v. Lawson, 57. 
 Seed V. Bradley, 306. 
 Seely v. Jago, 166. 
 Sefton, Re, 382. 
 
 Selby V. Cooling, 125. 
 
 — V. Pomfret, 279. 
 
 — V. Selby, 228. 
 Sellack v. Harris, 7. 
 Sellers v. Matlock Bath, 523. 
 Sells V. Sells, 403. 
 
 Selwyn v. Garfitt, 287. 
 Sewell, In re, 469. 
 Seymore v. Tresilian, 358. 
 
 Seymour v. Pickett, 470. 
 Shaftesbury v. Arrovvsmith, 543. 
 Sharland v. Mildon, 352. 
 Sharp V. Jackson, 44. 
 
 — V. Lush, 208. 
 
 — V. Eichards, 280. 
 
 — V. St. Sauveur, 84. 
 Sharpe v. Hodgson, 146. 
 Shaw V. Buuney, 261. 
 
 — V. Gates, 105. 
 
 — o. Cunliffe, 155. 
 
 — V. Marten, 219. 
 Sheddon v. Goodrich, 175. 
 Sheffield, Ex parte, 57. 
 Sheffield v. Eden, 260, 261. 
 Sheffield Banking Co. v. Clayton, 
 
 439. 
 
 — Building Society v. Aizle- 
 
 wood, 110. 
 
 — Corporation v. Barclay, 429.. 
 Shelfer's Case, 533. 
 
 Shelley v. Westbrooke, 375. 
 Shelmardine v. Harrop, 261. 
 Shenstone v. Brock, 144. 
 Shephard, In re, 6. 
 Shepheard v. Bray, 440. 
 
 — V. Walker, 491. 
 Shepherd, Ex parte, 329. 
 Shepherd v. Croft, 489. 
 
 — V. Jones, 257. 
 
 — V. Titley, 274. 
 
 Sherwin v. Shakspear, 209, 505. 
 Shiel, Ex parte, 351. 
 Shillito V. Biggart, 310. 
 
 — V. Hobson, 29. 
 Shirley v. Stratton, 492. 
 Shirreff v. Hastings, 193. 
 Shove's Case, 256. 
 Shrager v. March, 40. 
 Shropshire Union Railway <r. 
 
 Reg., 10, 274, 278. 
 Shurmur v. Sedgwick, 37. 
 Shuttleworth v. Clews, 508. 
 
 — V. Greaves, 178. 
 Sichel V. Mosenthal, 476. 
 Siddons v. Short, 522, 546. 
 Sidmouth v. Sidmouth, 79. 
 Sidney, In re, 70. 
 Simmins v. Shirley, 254. 
 Simmons v. Blandy, 285. 
 
 — V. Woodward, 306. 
 Simon, In re, 335. 
 Simpson «. Howden, 512. 
 
 — V. Lamb, 57. 
 
 — V. Molson'a Bank, 271. 
 Simson v. Jones, 370. 
 Sinclair v. James, 537. 
 Singleton v. Tomlinson, 60. 
 Sisson V. Giles, 166. 
 
INDEX TO CASES CITED. 
 
 Skinner v. Skinner, 375. 
 Skottowe V. Williams, 423. 
 Slanning v. Style, 329. 
 Slater, In re, 148. 
 Slater's Trusts, In re, 364. 
 Slazenger v. Spalding, 631. 
 Sleet, In re, 207. 
 Slevin v. Hepburn, 68, 71. 
 Slim V. Croucher, 429. 
 Sloman v. Walter, 319. 
 Sloper V. Oliver, 389, 467. 
 Sly V. Blake, 224. 
 Small V. Bradley, 131. 
 
 — V. Hedgely, 195, 198. 
 Smalley v. Hardinge, 433. 
 Smart v. Taylor, 155. 
 
 — V. Tranter, 327. 
 Smethurst v. Hastings, 104. 
 Smith V. Abbott, 83. 
 
 — V. Armitage, 223. 
 
 — v. Betty, 314, 468, 470. 
 
 — v. Brunning, 419. 
 
 — V. Caaen, 146. 
 
 — V. Chadwiok, 372, 407. 
 
 — V. Claxton, 164. 
 
 — V. Clay, 15. 
 
 — V. Cook, 439. 
 
 — V. Day, 147. 
 
 — -w. Dodswarth, 225. 
 
 — V. Garland, 34. 
 
 — V. Great Western E. C, 290. 
 
 — V. Hammond, 539. 
 
 — V. Hancock, 516. 
 
 — V. Hill, 152. 
 
 — V. King, 54, 417. 
 
 — V. Land & House, 407. 
 
 — V. Law Guarantee, 285. 
 
 — V. Lewis, 121. 
 
 — V. Lubbock, 94. 
 
 — V. Lucas, 341. 
 
 — V. Margetts, 148. 
 
 — V. Matthews, 23. 
 
 — V. May, 164. 
 
 — V. Morgan, 193, 205. 
 
 — 0. Mules, 453. 
 
 — V. Osborne, 348. 
 
 — V. Sibthorpe, 16. 
 
 — V. Smith (1899, 1 Ch.), 232. 
 
 — u. Smith (12 P. D.), 344. 
 
 — V. Smith (3 Atk.), 374, 377. 
 
 — V. Somes, 432. 
 
 — V. Stafford, 183. 
 
 — V. Thompson, 104, 119. 
 
 — V. Wallace, 507. 
 
 — V. Wheatoroft, 487. 
 
 — V. Whiteman, 307. 
 Smith & Service, In re, 476. 
 Smithett v. Heaketh, 243. 
 Smyth V. Carter, 519. 
 
 Sueesby v. Thorne, 494. 
 
 Suellgrove v. Baily, 144, 145. 
 
 Soames v. Edge, 533. 
 
 Soar V. Foster, 80. 
 
 Bobey v. Sobey, 551. 
 
 Soci^tS Gln^rale v. Tramways 
 
 Union, 52. 
 Softlaw V. Welch, 349. 
 Solomon v. Attenborough, 125. 
 Solomon & Meagher, In re, 288. 
 Somerset v. Powlett, 103, 112. 
 Somerville & Turner, Re, 85, 96. 
 Somerville o. Mackay, 449. 
 Soper V. Arnold, 508. 
 South V. Bloxam, 229. 
 Sguthwark Waterworks v. 
 
 Wandsworth Board, 518. 
 Sovereign Life Assurance v. 
 
 Dodd, 467. 
 Sowden v. Sowden, 17, 181. 
 Spackman v. Evans, 412. 
 Spalding v. Thomson, 303. 
 Spark V. Massey, 329. 
 Sparrow, Re, 384. 
 Speight V. Gaunt, 103. 
 Spencer v. Clarke, 265, 268. 
 
 — V. Topham, 270. 
 Spencer (Earl) v. Peek, 544. 
 Spensley v. Harrison, 290. 
 Sperling v. Eoohfort, 218. 
 Spicer v. Hunt, 474. 
 Spindler and Mear, In re, 509. 
 Spiral Globe Co., In re, 305. 
 Spirett V. Willows, 31. 
 Sprake v. Day, 216. 
 
 Sproule V. Bouch, 154. 
 
 — V. Prior, 232. 
 Spurrier v. Fitzgerald, 481. 
 Squire v. Campbell, 516. 
 Stacey v. Hill, 444. 
 Stackeman v. Paton, 529. 
 Stackhouse v. Barnston, 15. 
 Stackpoole v. Stackpoole, 38. 
 Stahlschmidt v. Lett, 149, 220. 
 Stamford Bank v. Ball, 445. 
 Stamford Union v. Bartlett, 386. 
 Standard Manuf. Co., In re, 305. 
 Standing v. Bowring, 80. 
 Stanhope v. Earl Verney, 543. 
 Stanley v. Stanley, 343. 
 Stansfield v. Hobson, 247. 
 Stanton v. Lambert, 219, 333. 
 Stead 0. Hardaker, 218. 
 
 — V. Nelson, 331. 
 Steed o. Preece, 163. 
 Steel V. Dixon, 439. 
 
 — 0. Walker, 28. 
 Stenotyper Case, 4^. 
 Stephens, Hx parte, 468. 
 
xl 
 
 INDEX TO CASES CITED. 
 
 Stephens ». Green, 50, 52. 
 Stephenson v. Chiswell, 457. 
 Stevens v. Benning, 527. 
 
 — -v. Theatres Limited, 285. 
 Stewart v. Fletcher, 339. 
 
 — V. Kennedy, 488. 
 
 — V. McLaughlin, 29. 
 
 — V. Ehodes, 201. 
 
 — V. Stewart, 397. 
 
 St. Helens Smelting Co. v. Tip- 
 ping, 521. 
 
 St. John P. St. John, 14, 343, 548. 
 
 St. Mary Magdalen v. A.-G., 74. 
 
 St. Paul V. Birmingham R. C, 
 505. 
 
 St. Thomas's Hospital, Ex parte, 
 437. 
 
 Stickney v. Sewell, 103. 
 
 Stirling v. Burdett, 439, Add. 
 
 — V. Silburn, 427. 
 Stock V. Ivimey, 402. 
 
 — V. McAvoy, 81. 
 Stocken v. Stocken, 190. 
 Stocker v. Wedderburn, 476. 
 Stockley v. Parsons, 347. 
 Stockport Schools, Re, 69. 
 Stocks u. Dobson, 50. 
 Stokell V. Haywood, 48. 
 Stokes V. Cheek, 149. 
 
 Stone V. Hoskins, 8. 
 
 — V. Smith, 503. 
 Stott V. Milne, 117. 
 Strange v. Fooks, 445. 
 Strangeways v. Read, 384. 
 Strapp V. Bull, 128. 
 Stratford v. Twyman, 261. 
 Strathmore v. Bowes, 371, 372. 
 Streatham Estates, In re, 237. 
 Street v. Rigby, 643. 
 Strickland v. Symons, 127, 129. 
 
 — V. Turner, 399. 
 Strohmenger v. Finsbury Build- 
 ing Society, 256. 
 
 Strong V. Bird, 29. 
 Stroud V. Gwyer, 135. 
 Strugnell ». Strugnell, 537. 
 Stubbins, Ex parte, 131. 
 Stubbs V. Slater, 426. 
 Stucley V. Kekewich, 90, 249. 
 Studholme v. Hodgson, 544. 
 Stumore v. Campbell, 468. 
 Sturge V. Starr, 13. 
 Sturges V. Bridgman, 520. 
 Sturgis V. Champneys, 362. 
 
 — V. Corp, 330. 
 Sturton V. Richardson, 464. 
 Styles V. Guy, 114. 
 Suggitt's Trusts, In re, 370. 
 Sullivan v. Jacob, 492. 
 
 Sullivan v. Mitcalfe, 372. 
 Summers, In re, 209. 
 Sumner v. Powell, 401, 435. 
 Surcombe v. Pinniger, 483. 
 Surman v. Biddell, 497. 
 
 — V. Wharton, 332, 337. 
 Sutherland v. Heathcote, 401. 
 Sutton V. Rawlings, 242. 
 
 — V. Sutton, 249. 
 Swain v. Ayres, 17. 
 
 — V. Wall, 441. 
 Sweet V. Sweet, 330. 
 Sweetapple v. Bindon, 25. 
 Swift V. Pannell, 39, 305. 
 
 — V. Swift, 375. 
 Swire o. Redman, 436. 
 Sydney Bank v. Taylor, 443. 
 Synnot v. Simpson, 43. 
 
 T.4D0ASTEII Brewery v. Wilson, 
 
 499. 
 Taddy's'Oase, 500. 
 Talbot V. Frere, 221, 277. 
 
 — V. Hope-Scott, 611. 
 
 — V. Shrewsbury, 184. 
 Tamplin v. James, 487. 
 Tankard, Ee, 89. 
 Tanqueray Williaume, In re, 63. 
 Tarn v. Bmmerson, 200, 351. 
 
 — V. Turner, 241. 
 Tasker v. Small, 484. 
 
 — V. Tasker, 329. 
 Tasmania Bank v. Jones, 443. 
 Tate, In re, 143. 
 
 Tate V. Fullbrook, 529. 
 
 — V. Leithead, 146. 
 
 — V. Williamson, 109. 
 Taunton w. Sheriff of Warwick- 
 shire, 276. 
 
 Tayleur -o. Wildin, 437. 
 Taylor, In re, 374, 485. 
 Taylor, Re, 386. 
 Taylor v. Haygarth, 163. 
 
 — V. Johnstone, 417. 
 
 — V. Meads, 331. 
 
 — V. Neate, 453. 
 
 — V. New South Wales Bank, 
 
 446. 
 
 — V. Pugh, 371, 372. 
 
 — v. Russell, 131. 
 
 — V. Taylor (L. E. 20 Eq.), 
 
 190. 
 
 — V. Wade, 133. 
 
 Taylor Stileman & Co., In re 
 313. 
 
INDEX TO CASES CITED. 
 
 xH 
 
 Teasdale v. Braithwaite, 37. 
 Tee V. Ferria, 60. 
 Teevan v. Smith, 246. 
 Tempest v. Camoys, 99. 
 Tendring Union v. Dowton, 513. 
 Tennent v. Welch, 364. 
 Terry & White's Contract, In re, 
 
 506. 
 Thackwray & Young, In re, 496. 
 Tharp, Re, 332. 
 Thomas, In re, 203, 210. 
 Thomas v. Bennet, 357. 
 
 — V. Brown, 482. 
 
 — V. Bering, 490. 
 
 — V. Foster, 146. 
 
 — V. Griffith, 208. 
 
 — V. Howell, 73, 159, 176. 
 
 — V. Kelly, 306. 
 
 — V. Marsh, 385. 
 
 — V. Oakley, 520. 
 
 — V. Patent Lionite Co., 202. 
 
 — V. Tyler, 543. 
 Thomasset u. Thomasset, 374. 
 Thompson u. Alexander, 97. 
 
 — V. Bennett, 219. 
 
 — V. Clydesdale Bank, 428. 
 
 — V. Hudson, 289, 322. 
 
 — V. Stanhope, 429. 
 Thompson's Patent, In re, 526. 
 Thomson v. Clanmorris, 408. 
 
 — V. Shakespeare, 73. 
 
 — V. Thomson, 344. 
 
 — V. Weems, 411. 
 Thorley's Cattle Food Company 
 
 ■u. Massam, 524. 
 Thornbrough v. Baker, 95. 
 Thorndike d. Hunt, 11. 
 Thorne v. Heard, 112, 286. 
 
 — V. Thorne, 147. 
 Thorneloe v. Hill, 458. 
 Thornett v. Haines, 429. 
 Thornley v. Thornley, 356. 
 Thornton v. France, 248. 
 Three Towns v. Maddever, 9. 
 Thursby v. Eccles, 482. 
 Thurston v. Evans, 219, 333. 
 
 — V. Mackeson, 288. 
 Thynne v. Glenffall, 188. 
 
 — V. Sari, 296. 
 Tibbits V. Tibbits, 179. 
 Tidd V. Lister, 361, 367. 
 Tilley «. Bowman, 305. 
 Tippett & Newbould, In re, 339. 
 Tipping V. Tipping, 231, 358. 
 Tipton Green v. Tipton Moat, 
 
 256. 
 Titley v. Davies, 282. 
 
 — V. Thomas, 242, 243, 504. 
 Toft V. Stephenson, 89. 
 
 Toker v. Toker, 430. 
 Tolhurst's Case, 46. 
 ToUemache, Re, 122. 
 Toller V. Carteret, 18. 
 ToUet V. Toilet, 392. 
 Tombes v. Elers, 378. 
 Tombs V. Roch, 232. 
 Tomkina v. SafEery, 45. 
 Tomlin v. Luce, 259, 491. 
 Tomaon v. Judge, 423. 
 Tootal's Estate, He, 124. 
 Tooke V. Hartley, 291. 
 Toovey v. P. T., 141. 
 
 — V. Turner, 163, 346. 
 Topham v. Armitage, 120. 
 
 — V. Booth, 248. 
 Tottenham District Council v. 
 
 Williamson, 520. 
 Toulmin v. Steere, 242, 243. 
 Tourville v. Naish, 89. 
 Toussaint v. Martinnant, 437. 
 Towerson v. Jackson, 253. 
 Towndrow, In re, 133. 
 Townend v. Townend, 134. 
 Towuley v. Bedwell, 160. 
 
 — V. Sherborne, 112. 
 Townshend v. Stangroom, 487. 
 Townshend Peerage Case, 545. 
 Townson v. Harrison, 226. 
 Towry-Law v. Burne, 46. 
 Trarers v. Kelly, 146. 
 Treasury Solicitor v. Lewis, 143. 
 Trego V. Hunt, 459. 
 Tremain's Case, 376. 
 Tremayne v. Eashleigh, 182. 
 Trenchard v. Trenchard, 150. 
 Trent -. Hunt, 251. 
 
 Trevor v. Hutchins, 221. 
 
 — V. Trevor, 25. 
 
 — V. Whitworth, 414. 
 Trewby v. Balls, 218. 
 Trimmer v. Danby, 144. 
 Tringham v. Greenhill, 8. 
 Trinidad Aaphalte Co. d. Coryat, 
 
 263. 
 Troughton v. Gitley, 498. 
 Truslove v. Parratt, 356. 
 Trye v. Sullivan, 82. 
 Trye's Case, 426, 427. 
 Tubbs V. Wynne, 501. 
 Tucker v. Burrow, 80. 
 
 — V. Tucker, 105, 150. 
 
 — V. Vowles, 514. 
 Tudor V. Anson, 391. 
 Tuer, In re, 385. 
 
 Tuer V. Turner, 167, 363. 
 Tugwell, Re, 169. 
 Tulk V. Moxhay, 513. 
 Tullett V. Armstrong, 338. 
 
xlii 
 
 INDEX TO CASES CITED. 
 
 Turoan, In re, 46. 
 Turnbull v. Duval, 422. 
 
 — V. Forman, 335. 
 
 — v. Nicholas, 350. 
 Turnell'a Case, 281. 
 Turner, Re, 313. 
 Turner, Jane, Re, 57. 
 
 Turner v. Cameron Coal Co., 254. 
 
 — V. Collins, 422. 
 
 — V. Green, 409. 
 
 — V. King, 333. 
 
 — V. Marriott, 90. 
 
 — V. Morgan, 536. 
 
 — V. Newport, 125. 
 
 — V. Turner, 399, 468. 
 
 — V. Walsh, 6, 251. 
 
 — V. Watson, 134, 221. 
 
 — V. Wright, 518. 
 Turton v. Benson, 53. 
 Tuther v. Caralampi, 319. 
 Tweedie v. Haywood, 220. 
 Tweedie & Miles, In re, 157. 
 Twyne's Case, 31. 
 
 Tye, Re, 387. 
 Tyler, In re, 42, 94. 
 Tyler v. Lake, 330. 
 
 — V. Tylor, 73. 
 
 — V. Yates, 426, 511. 
 Tyrrell v. Bank of London, 423. 
 
 — V. Hope, 330. 
 
 Undeehay v. Read, 254. 
 Underwood v. Barker, 420. 
 Union Bank v. Ingram, 256, 260, 
 
 285. 
 U. S. of America o. M'Eae, 543. 
 Upmann v. Forester, 531. 
 Upton V. Brown, 130. 
 
 Valpy v. Valpy, 216. 
 
 Van V. Corpe, 488. 
 
 Vane v. Barnard, 518. 
 
 Van Gheluive v. Nerinekz, 193. 
 
 Van Joel v. Hornsey, 510. 
 
 Van Laun, Re, 316, 541. 
 
 Van Praagh v. Everidge, 487. 
 
 Vansittart, In re, 33. 
 
 Vardon's Trusts, In re, 175. 
 
 Varley v. Cook, 258. 
 
 Vaseline Trade Mark, 531. 
 
 Vaughan v. Buck, 362. 
 
 — V. Vanderstegen, 334. 
 Vawdrey v. Simpson, 460. 
 Venezuela E. C. v. Smith, 413. 
 Venn & Furze, In re, 64. 
 Venture, The, 310. 
 
 Vernon v. Hallam, 458. 
 Verrell's Contract, In re, 64. 
 Veuve Monnier, Re, 428. 
 Vibart v. Coles, 194. 
 Vickers v. Pound, 148. 
 
 — v: Vickers, 189. 
 Viditz -D. O'Hagan, 417. 
 Villers v. Beaumont, 416, 548. 
 Vincent v. Godson, 19, 479. 
 Vine, Ex parte, 498. 
 
 Vint V. Padgett, 279. 
 Vipont V. EadclifEe, 106. 
 Vizard's Trusts, In re, 348. 
 Vyvyan v. Vyvyan, 538. 
 
 W. & L., 41. 
 Wade V. Wade, 146. 
 
 — V. Wilson, 295. 
 Wadling v. Oliphant, 497. 
 Wadman v. Calcraft, 323. 
 WagstafE v. Jalland, 404, 551. 
 
 — V. Smith, 330. 
 Waidanis, In re, 140. 
 Wainford v. Heil, 335, 351. 
 Waite V. Bingley, 534. 
 
 — V. Morland, 343. 
 Wales V. Carr, 242. 
 Walhampton Estate, In re, 35. 
 Walker, In re, 165. 
 
 Walker v. Bradford Old Bank, 
 48. 
 
 — u. Clements, 468. 
 
 — u. Denne, 162. 
 
 — V. Hirsch, 450. 
 
 — V. Jeffreys, 491. 
 
 — V. Lever, 158. 
 
 — V. Linom, 299. 
 
 — V. Mottram, 449. 
 
 — V. Symmonds, 135. 
 Wall V. City of London, 480. 
 Wallace v. Auldjo, 368. 
 
 — V. Everahed, 281. 
 
 — v. Greenwood, 164. 
 Wallasey Local Board v. Graoey, 
 
 519. 
 Waller v. Atkinson, 174. 
 Wallis, In re, 49, 50, 51, 294. 
 Wallis V. Duke of Portland, 56. 
 
 — V. Smith, 321. 
 
INDEX TO CASES CITED. 
 
 diii 
 
 Wallia & Barnard's Contract, Be, 
 
 509. 
 Wallwyn v. Lee, 12. 
 Walrond v. Rosslyn, 169. 
 Walsh V. Gladstone, 69. 
 
 — V. Lonsdale, 17. 
 Walter v. Ashton, 532. 
 
 — V. Lane, 528. 
 
 — V. Maunde, 165. 
 
 — V. Steinkopff, 528. 
 Walters v. Morgan, 410. 
 
 — V. Woodbridge, 118. 
 Wandsworth Union v. Working- 
 fan, 386. 
 
 Wankford v. Wankford, 115. 
 Wanton v. Coppard, 500. 
 Warburton v. Stephens, 196. 
 Ward, Ex parte (1907, 2 K. B.), 
 
 201. 
 Ward, In re, 55, 236. 
 Ward V. Arch, 158. 
 
 — V. Beck, 310. 
 
 — V. Duncombe, 51. 
 
 — V. National Bank of New 
 
 Zealand, 444. 
 
 — V. Turner, 144. 
 
 — V. Valletort Co., 268, 276. 
 
 — V. Wallis, 396. 
 
 — V. Ward, 369. 
 Ward Lock v. Long, 527. 
 Ware v. Polhill, 376. 
 Waring, Ex parte, 472. 
 Waring v. Danvera, 194. 
 
 — V. Ward, 292. 
 Warne v. Seebohn, 530. 
 Warner, Ex parte, 295. 
 Warner v. Jacobs, 286. 
 
 — V. Moir, 322. 
 Warren v. Brown, 521. 
 Warren's Settlement, 341. 
 Wassell V. Leggatt, 330, 332. 
 Waterer v. Waterer, 86, 456. 
 Waters v. Taylor, 453. 
 Watkins, Re, 3S5. 
 Watkins v. Watkins, 55, 331. 
 Watkins' Case, 110. 
 
 Watkins' Settlement, In re, 150. 
 Watney v. Wells, 453. 
 Watson, In re, 352. 
 Watson V. Marston, 286, 493. 
 
 — V. Northumberland (Duke), 
 
 535. 
 
 — V. Rose, 90. 
 
 — V. Watson (1901, 1 Ch.), 
 
 147. 
 Watt V. Assets Co., 15. 
 
 — V. Bullas, 391. 
 
 — V. Driscoll, 454. 
 
 — V. Watt, 391. 
 
 Way V. Barrett, 457. 
 Wayman v. Monk, 193. 
 Weall, In re, 102, 104. 
 Weatherby v. International 
 
 Horse Agency, 528. 
 Weaver, Re, 384. 
 Webb V. England, 375. 
 
 — V. Hewitt, 443. 
 
 — V. Jonas, 103. 
 
 — V. Smith, 228, 311. 
 
 — V. Stenton, 336. 
 Webster, Re (1907, 1 K. B.), 201. 
 Webster v. British Empire As- 
 surance Company, 463. 
 
 — V. Petre, 442. 
 
 — V. Webster, 474. 
 Wedderburn's Trusts, In re, 120. 
 Wedmore v. Wedmore, 149. 
 Weeding v. Weeding, 160. 
 Weekes' Settlement, In re, 61. 
 Weibking, In re, 309. 
 
 Weir V. Brown, 69. 
 Weir Hospital, The, 69. 
 Welch V. Peterborough (Bp.), 
 262. 
 
 — V. Channell, 379. 
 Weldon v. Dicks, 528. 
 Wellborne, In re, 108. 
 Wellesley v. Wellesley, 182. 
 Wells V. Borwiok, 149. 
 
 — V. Hughes, 541. 
 
 — V. Kilpin, 6. 
 Welton V. Saffery, 414. 
 Weniger's Policy, In re, 266. 
 Wenlock v. River Dee Co., 236. 
 Wenman v. Lyon, 39. 
 
 West, In re, 147. 
 West V. Diprose, 246. 
 
 — V. Downman, 501. 
 
 — V. Erisey, 402. 
 
 — V. Roberts, 147. 
 
 — V. Sackville, 544. 
 
 — V. Williams, 274. 
 
 — 17. Wythes, 99. 
 West & Hardy, In re, 352. 
 Westacott v. Bevau, 313. 
 
 West Derby v. Metropolitan Life, 
 
 245. 
 Western Waggon Co. v. West, 52. 
 West Ham v. Sharp, 502. 
 West London Commercial Bank 
 
 V. Kitson, 428. 
 West London Bank v. Reliance 
 
 Society, 286. 
 West of England Insurance v. 
 
 Isaacs, 445. 
 Westley v. Clarke, 114. 
 Westmacott v. Robins, 508. 
 Weston V. Metrop. Asylums, 321. 
 
xliv 
 
 INDEX TO CASES CITED. 
 
 Weston & Thomas, In re, 507. 
 Westwood v. Booker, 194. 
 Westzinthus, In re, 304. 
 Wheatley v. Silkstone Co., 216. 
 Wheeler v. Caryl, 371. 
 
 — V. De Hochow, 139. 
 Wheldale v. Partridge, 165, 168. 
 Whistler, Re, 64. 
 
 Whistler v. Webster, 172. 
 Whitaker, In re, 383. 
 Whitaker v. Forbes, 19. 
 
 — V. Palmer (1901, 1 Ch.), 
 
 205. 
 
 — V. Whittaker, 151. 
 Whitbread v. Watt, 90. 
 White V. City of Loudon 
 
 Brewery Co., 259. 
 
 — V. Ellis, 52. 
 
 — V. Metcalf, 257. 
 
 — 1!. Nutts, 394. 
 
 — V. Sewell, 469. 
 
 — V. Tyndall, 401. 
 
 — V. White, 174. 
 
 White & Smith's Contract, In re, 
 
 500, 513. 
 Whitechurch (Geo.) v. Cavanagh, 
 
 429. 
 Whitehead v. Lord, 425. 
 Whitehouse v. Edwards, 79, 189. 
 Whiteley v. Learoyd, 102, 104. 
 Whiteley's Case, 412. 
 Whiteman v. Sadler, 427. 
 Whitfield, In re, 356. 
 Whitfield V. Hales, 375. 
 Whiting V. de Eutzen, 156. 
 Whitley v. Challis, 255. 
 Whitmore v. Mason, 40, 466. 
 
 — *. Turquand, 44. 
 Whittaker v. Kershaw, 217. 
 Whittemore v. Whittemore, 502. 
 Whitting, In re, 49. 
 
 Whittle V. Hemming, 339. 
 Whittle's Case, 236. 
 Whitton V. Eussell, 395. 
 Whitwham v. Pieroy, 76. 
 Whitwood Chemical Go. v. Hard- 
 man, 516. 
 Whitworth v. Gaugain, 274. 
 Whyte V. Whyte, 186. 
 Wiokens, Ex parte, 307. 
 Wicks V. Hunt, 533. 
 Widgery v. Tepper, 366. 
 Wigan's Case, 38. 
 Wiggins V. Horlock, 185. 
 Wigram v. Buckley, 50, 202. 
 
 — V. Fryer, 623. 
 Wilder „. Pigott, 172, 178. 
 Wilding V. Sanderson, 401. 
 Wildman u. Wildman, 48. 
 
 Wiles V. Gresham, 129, 135. 
 Wilkes V. Spooner, 265. 
 Wilkins v. Kotherham, 209. 
 Wilkinson v. Clements, 476. 
 
 — V. Gibson, 364. 
 
 — V. Parry, 135. 
 Wilks ■«. Scriven, 241. 
 Willfe V. St. John, 501, 
 Willesford v. Watson, 449. 
 Williams, Ex parte, 252. 
 Williams, In re, 193. 
 Williams v. Bayley, 416. 
 
 — V. Bull, 547." 
 
 — V. Hopkins, 201. 
 
 — V. Hunt, 283. 
 
 — V. Kershaw, 76. 
 
 — V. Morgan, 238, 293. 
 
 — V. Nesvcastle (Duchess), 506. 
 
 — V. Nixon, 113. 
 
 — V. Owen, 239, 277. 
 
 — V. Walker, 482. 
 
 — V. Waters, 22. 
 
 — V. Williams (L. R. 15 Eq.), 
 
 206. 
 ~ V. Williams (L. E. 2 Ch.), 
 397 
 
 — V. Williams (1897, 2 Ch.), 
 
 68. 
 
 — V. Williams (1900, 1 Ch.), 
 
 212. 
 
 — V. Williams (17 Ch. D.), 
 
 267. 
 
 — V. Williams (1904, P.), 346, 
 
 — V. Williams (1907, 1 Ch.), 
 
 75. 
 Williamson v. Barbour, 137. 
 
 — V. Hine, 109. 
 WiUis, Re, 93, 289. 
 Willis V. Kymer, 61. 
 Willmott V. London Celluloid, 
 
 413. 
 Wills V. Slade, 534. 
 
 — V. Stradling, 482. 
 Willson v. Love, 320. 
 Wilmot V. Alton, 47. 
 
 — V. Pike, 11. 
 Wilson, Ex parte, 457. 
 Wilson, In re, 215, 498, 
 Wilson V. Ann, 333, 
 
 — V. Church, 99. 
 
 — V. Cox-Sinclair, 116. 
 
 — V. Coxwell, 191. 
 
 — V. Foreman, 132. 
 
 — V. Furness E. C, 475, 
 
 — V. Greenwood, 40. 
 
 — V. Johnstone, 454, 
 
 — V. Kellard, 275. 
 
 — V. Maryon Wilson, 146. 
 
 — V. Piggott, 433. 
 
INDEX TO CASES CITED. 
 
 xlv 
 
 Wilson V. Queen's Club, 253, 521. 
 
 — V. Turner, 379. 
 
 — f. West Hartlepool R. C, 
 
 475. 
 Wilton V. Osborne, 427. 
 WUtsIiire v. Rabbits, 52. 
 Winchelsea's Policy, In re, 94. 
 Windham, In re, 382. 
 Wingfield v. Erskiue, 220. 
 WingroTe v. Wingrove, 416. 
 Winkfield, The, 462, 540. 
 Winkle, In re, 387. 
 Witham v. Andrew, 60. 
 Withers v. Withers, 22. 
 Withrington v. Bankes, 262, 518. 
 Witt, In re, 311. 
 Wix V. Rutson, 501. 
 Wollaston v. King, 173. 
 Wolmershansen v. Gullick, 439. 
 Wood V. Briant, 152, 190. 
 
 — V. Cock, 332. 
 
 — V. Gregory, 537. 
 
 — V. Lambert, 531. 
 
 — V. Eowolifie, 479. 
 
 — V. Stenning, 471. 
 
 — V. Turner, 209. 
 
 — V. Wood, 344. 
 WoodaU V. Clifton, 161. 
 Woodbridge v. Bellamy, 515. 
 Woodhead v. Ambler, 351. 
 
 — V. Woodhead, 344. 
 Woodhouse v. Shelley, 549, Add. 
 Woodmeston v. Walker, 149. 
 WoodrofPe v. Moody, 151. 
 Woods, In re, 125. 
 
 Woods V. Harrison, 313. 
 Woodward, In re, 552. 
 Woodyatt v. Gresley, 133. 
 Wooldridge v. Norris, 437, 546. 
 Woolf V. Hamilton, 54. 
 WooUey v. Colman, 285. 
 Woolridge v. Woolridge, 173. 
 Woolstencroft v. Woolstencroft, 
 
 216. 
 Worcester Bank v. Blick, 132. 
 Worley v. Frampton, 485. 
 WorraU v. Harford, 117. 
 Worsley, Re, 350. 
 Wortham v. Pemberton, 363. 
 Worthing Corp. v. Heather, 162. 
 
 Worthington c. Abbott, 292. 
 Wragg, In re, 411. 
 Wray v. Steele, 78. 
 Wrexham, &c. R. C, In re, 129, 
 
 438. 
 Wright, Ex -parte, 294. 
 Wright V. Atkins, 58. 
 
 — V. Laing, 470. 
 
 — c. Maidstone, 391. 
 
 — , . Morley, 361. 
 
 — I . Rose, 158. 
 
 — f. Sanderson, 313. 
 
 — I'. Simpson, 437. 
 
 — t\ Vanderplank, 422. 
 
 — p. Ward, 539. 
 
 — V. Wright, 332, 340. 
 Wrightson, In re, 139, 223. 
 Wrigley v. GiU, 257, 260, 289. 
 Wrout V. Dawes, 87. 
 
 WulflE V. Jay, 445. 
 
 Wylie, In re, 349. 
 
 Wyllie V. Pollen, 272. 
 
 Wyman v. Patterson, 101, 113. 
 
 Wynter v. Orlebar, 225. 
 
 Yates v. Terry, 49. 
 
 — r. University College, 68, 
 
 404. 
 Yeo V. Clemow, 146. 
 Yockney v. Hansard, 186. 
 York (Mayor) v. Pilkington, 547. 
 York Union v. Artley, 295. 
 Yorke, In re, 118. 
 Yorkshire Bank v. MuUan, 255. 
 Yorkshire Railway Waggon Co. 
 
 V. Maclure, 308, 436. 
 Youde V. Cloud, 106. 
 Young V. Curtis, 305. 
 
 — V. Peachey, 79. 
 
 Zaiser v. Lawley, 432, 478. 
 Zerenner, Ex parte, 526. 
 Ziegler v. Nicol, 404. 
 Zimbler v. Abrahams, 17. 
 
( xlvii ) 
 
 ADDENDA. 
 
 p. 80, — footnote («), — Green v. Meinall is now reported in 1911, 
 2 Ch. 275. 
 
 P- 121, — ^in footnote (e), add a reference to In re Pope's Contract, 
 1911, 2 Ch. 442. 
 
 P. 141, — footnote (A), — In re Devereux, Toovey v. P. T., is now 
 reported in 105 L. T. 407. 
 
 P. 208, — footnote {g), — In re James, James v. James, is now reported 
 in 1911, 2 Ch. 348. 
 
 P. 210, — footnote («), — In re Thomas, Bartley v. Thomas, is now 
 reported in 1911, 2 Ch. 389. 
 
 P. 283, — in footnote (j>), add a reference to Manks v. Whiteley, 
 1911, 2 Ch. 448. 
 
 P. 289, — footnote (s), — In re Bladon, Dandy v. Porter, is now 
 reported in 1911, 2 Ch. 350. 
 
 P. 439, — in footnote («), add a reference to Stirling v. Burdett, 
 1911, 2 Ch. 418. 
 
 P. 548, — ^The paragraph ending with the words " undue influence («), 
 " — or for illegality («)," near top of page, is to be continued 
 as follows: — "And {e.g.') in Woodhouse v. Shelley (2 Atk. 
 " 535), where the plaintiff (who was an impulsive young 
 " female and the child of wealthy parents) gave to the def en- 
 " dant her fiance (who was a detrimental and a schemer) her 
 " bond in 2,OO0Z., conditioned for payment to him of the 
 " sum of 1,000Z. in cash, in case she did not marry him 
 " before a certain date (which was specified in the condition), 
 " — the Court ordered the peremptory delivery up and 
 " cancellation of the bond." 
 
V MEMORANDUM. 
 
 By tho Gonveyanoing Act, 1911 (1 & 2 Geo. 5, c. 37), which 
 received th<j Royal assent on thelGth December, 1911, and 
 which came into force the -Ist January, 1912, the following 
 - materiallohanges -have been made:^- 
 
 PagM 6' and. .253. — By sect. 3, the mortgagor in possession 
 = may now accept the siirrende'r, — provided it be for the 
 " piirpcise of iiis.^^iht^g- a new lease under the Convey- 
 ani)i6g. Act, 1881.' ; \ ' 
 , Page 63.^By sect. ,10, ,the power of sale in trustees now 
 " .eontinuea (ior th& purGhasBr's; protection) -until .the 
 tri|%t^ki-^ave/actually 'coi^y^^eHA t^^ property to their 
 ' . .:fj:esfetS que trustent. ' " ■.' '. ; - ;. . 
 
 ."-Pag®, 99,"r--By sect. 12, ,only tte proving executors jieed now 
 " .execute the agsigiiment, — or the conveyance,— ^to their 
 :, .\- , eestiiis qM tfmtmt. '"\ ' 
 
 ./ ■PQ,^e-139^J40.-^By, s^tj 8^ the legal. personal repr'esenta- 
 y •- ' .tfyesiof the';xie<SBased trustee ,(sole or last surviving) 
 ■ ' , ''may ;-npw execute": the tirust, .untir new- -trustees are 
 V. anointed.- '■ " ' -" \ "". ■ s- 
 P%&3.i8^;^|By292, aTid'341.--%^ seclxV, the 39th section 
 '' >■ 'Tofjfie- Conveyancing Actj 1881, is repealed (andj in- 
 •cidehtally, •Malins' Act is also repealed), — and th#.Iike - 
 powers are how ; ma.de ;^eroiseable 'under this Act,: — 
 = thoSowers now'J^liaSln'&'even to a mtoridd worn 
 ' :.,i;n.tCTeSts il^ader her :own fla^i*^^^ ^' . 
 
 -, ■pages- j^^; 280 . — By sect, 9, the; mortgagee, Vif a, feustee, . 
 may now «xfercise the power of sale, although he has 
 , 'tiecdime entitled by foreclosure absplut^^ — equally a^ 
 >:^.., when his titli^ is become, absolute by adverse possession. 
 ■ '~::~i§aigsl W7'.~-By sect. 5, _the purchaser .-flrom the selling 
 v .i" " laortgagee is not now concerned at all, ' whether the 
 ' notjofe; has been given or not. . . '. "'■;"' 
 Page'2§8,^By sect. 4, certain useful powers are now made 
 -'ineid:ental to the mortgagee's exercise of: his 'statutory 
 i" power; of sale. 
 
 „Pages-5O.0;and 513.— By.-sect. 11, a memorandum of the 
 
 ■ - ■ restrictive covenant may now "be indorsed upon (or other- 
 
 ,v ■-, wise Slinexed;. to) some niajberial title-deed, so -^ to 
 
 ' L convey easpress notice of it to all'vvhom it may affect. 
 
THE 
 
 PEINCIPLES OF EQUITY. 
 
 PART I. 
 
 INTRODUCTORY. 
 
 CHAPTER I. 
 
 THE JURISDICTION IN EQUITY. 
 
 Equity, although it corresponds in a general way with Nature aud 
 natural justice, is yet (as administered in the Courts) the^^Mkf- 
 much less wide than natural justice, — comprising only that tion in equity. 
 portion of natural justice which was of a nature to he 
 judicially, enforced, but which the old Common Law 
 Courts omitted to enforce (a) ; and accordingly it is the The older 
 province of equity to " supply the defects " of the common definUions of 
 law, and to "mitigate " (where, in the interests of justice, Ind^Spialued. 
 it is proper to mitigate) the too extreme "rigours" of 
 the common law. 
 
 Equity was iq^gld times comparatively free from the Equity in 
 control of preceo^ts, " the measure of the Chancellor's ™chtracterf. 
 foot" having then been (and necessarily) the only 
 measure of the equity jurisdiction. But a Court of Equity 
 is now bound by precedents and by settled rules, as com- 
 pletely as a Court of Common Law is bound; and there is 
 not, in fact, a single principle of interpretation (6), or 
 
 (a) Cowper v. Cowper, 2 P. Wms. 720, on pp. 753, 754. 
 
 (b) Salmon v. Duncombe, 11 App. Cas. 627. 
 
THE JURISDICTION IN EQUITY. 
 
 Origin of the 
 jurisdiction in 
 equity, — the 
 causes of. 
 
 (1) The in- 
 elastic and 
 inflexible pro- 
 cedure of the 
 common law. 
 
 (2) " The Sta- 
 tute in Con- 
 simili Casu," 
 — failure of 
 the remedy 
 thereby pro- 
 vided. 
 
 (3) The Lord 
 Chancellor, by 
 direction of the 
 sovereign and 
 of Parliament, 
 personally in- 
 tervened, at 
 length, in 
 22 Edw. III. 
 
 Bill or petition 
 in equity. 
 
 rule of evidence even (c), that is not now indifferently 
 applicable in both the King's Bench and the Chanoery 
 Divisions. 
 
 (1) By the old common law, every species of civil 
 wrong was supposed to fall within some particular class; 
 and for every class, an appropriate remedy existed, called 
 a ivrit or breve, — the writ being the first step in every 
 action; and the litigant was required to choose the appro- 
 priate writ, and any preliminary stumbling on his part in 
 the choice of the writ used to be fatal to his action . 
 
 (2) Where the alleged wrong did not fall within any of 
 the recognised writs, the plaintiff was without any redress 
 whatever, — Until, by the statute " In Consimili Casu " (13 
 Edw. I. s. 1, c. 24), it was enacted, that "whensoever 
 from henceforth it shall fortune that in one case a writ is 
 found, and in the like case (requiring the like remedy) 
 none is found, the writ clerks shall agree in making the 
 writ," — and failing to agree upon any form of writ, they 
 were to adjourn the matter to the next Parliament. 
 
 (3) The statute " In Consimili Casu " proved, however, 
 a wholly inadequate remedy; and the only course which 
 then remained open to suitors, was to petition the King 
 in Council: Upon which petition, the King used to refer 
 the matter (on each particular occasion) to the " Keeper of 
 his Conscience " (the Chancellor) for his consideration; 
 and eventually, in the reign of Edward III., the Court of 
 the Chancellor (Scil., the Court of Chancery), became a 
 permanent jurisdiction, distinct from the Common Law 
 Courts, and empowered to give relief in all those cases 
 which appeared to demand "extraordinary/" relief, — the 
 ordinance 22 Edw. III. having referred, generally, aJl 
 matters which were "of grace" to the Chancellor. 
 
 And from the date of that ordinance, suits by petition 
 or bill {without any preliminary writ) became the 
 common course of procedure in the Court of Chancery, — 
 On which bill or petition being presented, if the Chan- 
 cellor (on personally looking into it) thought that the 
 matter was one " of grace," and that it called for extra- 
 
 {c) Boig V. Birrell, 1899, 2 Ch. 50. 
 
THE JURISDICTION IN EQUITY. < 
 
 ordinary relief, u vxrit of subpoena was issued by him, 
 summoning the defendant to appear and to answer the 
 complaint, and to abide by the order of the Court. 
 Latterly, the personal examination of the bill by the 
 Chancellor was dispensed with, the signature of counsel 
 to the bill being accepted as suf&cient for the issue of the 
 writ of subpoena {d) ; and, by the Chancery Jurisdiction 
 Act, 1852 (e), the writ of subpoena to appear and to 
 answer the complaint was (as from the year 1852) super- 
 seded altogether, being replaced by a mere indorsement to 
 the like effect on the bill . 
 
 By and in consequence of the Judicature Acts, 1873 — The modem 
 1910, and the rules and orders from time to time made andTq^ty*'' 
 thereunder, law and equity have now been fused into one 
 system, and a uniform procedure in the Chancery Division 
 and in the King's Bench Division has been introduced, 
 and has become established. And regarding such new 
 procedure, it is sufficient to mention, that an action in the 
 Chancery Division of the High Court is now commenced 
 (as in the King's Bench Division) by issuing a writ, — the 
 writ being now capable of expressing every form of pos- 
 sible claim; and the writ may or may not be followed up 
 by a statement of claim on the part of the plaintiff, — such 
 statement of claim corresponding with the old bill to the 
 Lord Chancellor, and being usually the first pleading on 
 the part of the plaintiff in the action. 
 
 Prior to the fusion of law and equity so effected, it was Oiassifioatiou 
 usual (in Treatises on Equity) to classify the various sub- ?*ris(£otioii— 
 ject-matters falling within the jurisdiction of equity by prior to, and 
 relation to the common law, — and accordingly to sub- affectedbV^ 
 divide the jurisdiction under throe heads, viz., the the Supreme 
 Exclusive, the Concurrent, and the Auxiliary ^VLvisAiotions Mature Act"'^'' 
 in equity. But, by the Judicature Act, 1873, ss. 24, 1873. 
 25, in every civil cause or matter, law and equity are now 
 to be administered concurrently, — each Division of the 
 High Court exercising all the jurisdiction of the other 
 Divisions (in addition to its own proper jurisdiction); 
 and where there is any conflict or variance between the 
 
 (rf) Langdell's Summary of Equity Pleading. 
 (e) 16 & 16 Vict. 0. 86. 
 
 b2 
 
THE JTJEISDICTION IN EQUITY. 
 
 The old dis- 
 tinction be- 
 tween the 
 exeluaive and 
 the concurrent 
 jurisdictions, 
 — ^importance 
 of main- 
 taining. 
 
 rules of equity and the rules of the common law, the rules 
 of equity are to prevail. 
 
 However, by s. 34 of the Act, it is expressly enacted, 
 that (subject to the general provisions of the Act) there 
 shall be assigned to the Chancery Division all the causes 
 and matters which are specified in the now stating section, 
 and which comprise (roughly) all the various matters 
 which (prior to the fusion) used to fall within the exclu- 
 sive jurisdiction of equity. 
 
 The effect, therefore, of the Judicature Acts has been 
 (1) to nominally, put an end to the exclusive jurisdiction 
 of the Court of Chancery, and yet (2) to retain as exclu- 
 sive all that part of the jurisdiction which was origiually 
 exclusive; but (3) it abolishes the auxiliary jurisdiction 
 altogether, both nominally and practically, — Scil., rela- 
 tively to the Common Law Courts, — Because the suitor in 
 the King's Bench Division now no longer needs the aid 
 (auxilium) of the Chancery Division for any purpose 
 whatsoever. Therefore, the "exclusive" jurisdiction of 
 equity must now be called the originally exclusive juris- 
 diction, — the jurisdiction being now, iu all cases, " con- 
 CUKEENT "; but with only that one (merely verbal) modi- 
 fication, the distinction between the originally exclusive 
 jurisdiction and the originally concurrent jurisdiction is 
 still one of vital importance, — it being equitable estates 
 rights and remedies which are regarded in the originally 
 exclusive jurisdiction, while it is legal estates rights and 
 remedies that are regarded in the originally concurrent 
 jurisdiction (/): And, nota bene, the principles of equity 
 differ very materially, according as it is sought to apply 
 them in the one or in the other of these two jurisdic- 
 tions {g) : Wherefore the old distinction is proper enough 
 to be retained in treating of equity, — and it is convenient 
 also to retain it. 
 
 (/) Clements T. Matthews, 11 Q. B. D. 808, on p. 814 ; and the dis- 
 tinction was approved on pp. 286, 287, in 15 Q. B. D. {Joseph v. Lyons), 
 [g) Lagunas Nitrate Co. v. Lagunas Syndicate, 1899, 2 Ch. 392. 
 
CHAPTER II. 
 
 THE MAXIMS OF EQUITY. 
 
 Equity is pre-eminently a science, — and starts with and 
 assumes certain maxims, which embody the fundamental 
 notions (or postulates) of the science; and the maxims of 
 equity are the twelve following, that is to say: — 
 
 (1) Equity will not (by reason of a merely technical Maxims of 
 
 defect) suffer a wrong to be without a remedy; *l™*y- 
 
 (2) Equity follows the law; 
 
 (3) Where there are equal equities, the first in time 
 
 shall prevail; 
 
 (4) Where there is equal equity, the law shall prevail; 
 
 (5) He who seeks equity, must do equity; 
 
 (6) He who comes into equity, must come with clean 
 
 hands; 
 
 (7) Delay defeats equities; 
 
 (8) Equality is equity; 
 
 (9) Equity looks to the intent, rather than to the 
 
 form; 
 
 (10) Equity looks on that as done, which ought to 
 
 have been done; 
 
 (11) Equity imputes an intention to fulfil an obliga- 
 
 tion; and 
 
 (12) Equity acts in per sonant. 
 
 (1) Equity mil not (by reason of a merely technical (i) Equitywiii 
 defect) suffer a wrong to be without a remedy. — For ex- "fa merely"" 
 ample, where there was a legal mortgage and the mort- technical de- 
 gagor wanted either to recover the possession or to T^rong\o^be^ 
 ■distrain for his rent, he could not do it at law, — save in the without a 
 name of (and as the bailiff of) the mortgagee; but he ^™^ ^' 
 could do it in equity; and the rule of equity in theis© recovery of. 
 respects is now (by the Judicature Act, 1873, s. 25, sub- 
 s. 5) the rule at law also. But the mortgagee (being the 
 legal owner) still remains the legal owner, for the purpose 
 
O THE MAXIMS OF EQUITY. 
 
 of accepting a surrender of the lease (a), and for the pur- 
 pose also of suing! the lessee on his covenants in the 
 lease (6), and of giving the notice (before ejectment) 
 which is now (by the Conveyancing Act, 1881, s. 14) re- 
 quired to be given to the lessee (c), — although, semble^ 
 the mortgagor may also (under s. 10 of that Act) sue 
 for the lessee's breach of covenant (d) . 
 
 Execution. Also, where a successful plaintiff could not have had 
 
 legal execution, because of a prior legal mortgage, equity 
 interposed and gave him " equitable relief in the nature 
 of execution " (e), by the appointment of a receiver, with 
 or without an injunction (/), or other incidental relief (^r); 
 and the Common Law Courts also now grant the like 
 relief. But, in all these cases of equitable execution, it 
 is to be understood, that there is some technical difficulty 
 in the way (whereby the proper legal execution, — ^whether 
 by fi. fa. for goods (h), or by elegit for lands (i), — is not 
 available), and that (but for that techaical difficulty) the 
 proper legal execution could have issued. 
 
 iowf?^^w^' ^^^ Equity follows the law. — That is to say, as regards 
 legal estates, equity is strictly bound by the rules of law, 
 and acts in obedience to them; and as regards equitable 
 estates, equity, although not bound by the rules of law, 
 yet acts in analogy to them, wherever an analogy exists, 
 (a) Originally And, firstly, as regards Legal estates, — It is well settled, 
 jmkdictSn: that equity follows the law, in applying (e.g.) all the 
 Piimogeni- canons of descent, — ^and in particular the rule of primo- 
 of'desoent™ ''^ geniture, although that rule may in any particular appli- 
 generaliy. cation of it be productive of the greatest apparent hard- 
 ship towards the younger sons, there being no equity to 
 Following the the Contrary in their favour. And even where the special 
 may at the Circumstances create an equity to the contrary, the Courts 
 same tune pf Equity never break through the rules of law, — being 
 
 effect, — ^^^ 
 
 (a) Sorbins v. TThyte, 1906, 1 K. B. 126. 
 
 li) Molyneux v. Richard, 1906, 1 Ch. 34. 
 
 (c) Matthews v. Uther, 1900, 2 Q. B. 635. 
 
 (rf) Turner v. Walsh, 1909, 2 K. B. 484. 
 
 (c) Tn re Shephard, 43 Ch. D. 131. 
 
 (/) Lloyds Bank v. Medway Navigation, 1905, 2 K. B. 359. 
 
 (g) Weils V. Eilpin, L. R. 18 Eq. 298. 
 
 (A) Manchester, ^c. Banking Co. t. Parkinson, 22 Q. B. D. 173. 
 
 if) In re Shephard, supra. 
 
THE MAXIMS OF EQUITY. 7 
 
 bound thereby; but while maintaining these rules and 
 even founding upon them, they will avoid them in effect. 
 — For example, if an eldest son should prevent his father 
 from executing a proposed will devising an estate to one 
 of the younger sons hy promising to convey that estate 
 to his younger brother, ,and the estate accordingly is left 
 to descend at law to the eldest son as a consequence flow- 
 ing from Ms promise, a Court of Equity would, in such 
 a case, interpose and say, — " True it is, you (the eldest 
 son) have the estate at law, — in other words, the legal 
 estate; that .we don't deny or interfere with: hut precisely 
 because you have it, you will make a convenient trustee 
 of it for your younger brother, who (in our opinion) is 
 equitably entitled to it, — 8cil., because, but for your pro- 
 mise, he would have had it under the proposed devise 
 of it" (A;). 
 
 And equity interposes in such cases on the ground of Un the ground 
 estoppel, — So that where there is a clear estoppel, it matters °* ^^*°pp<=1- 
 not, whether the Court is dealing with the heir (entitled 
 under an intestacy), or with the legal devisee or residuary 
 legatee (entitled under a will(Z)); and the person en- 
 titled at law under a fine even (m) or under a common 
 recovery even (w), — which two conveyances were convey- 
 ances by record (and therefore of the very highest legal 
 efiScacy), — would have been declared to be (in such a case) 
 a mere trustee in equity: Therefore, where the devisee en- 
 titled under a will prevented the testator from making 
 a codicil (o), — or where the residuary legatee did the 
 like {p), — in each case by representing that he (the de- 
 visee) or she (the universal legatee) would hold himself 
 or herself bound to carry out the intended gift, the Court 
 has made good the gift. Similarly, where the intended 
 gift was of a bond in which the residuary legatee was 
 the obligor (g) . 
 
 ijc) Podmore v. Gunning, 7 Sim. 644, citing Sellack v. Sarris, 5 Vin. 
 Abr. 521. 
 
 (?) Nm-ris v. Frazer, L.B. 15Eq. 318. 
 (m) Barnesby v. Powel, 1 Ves. Sr. 284. 
 («) Ferres v. Ferres, 2 Ab, Eq. Q'd^. 
 (o) Barrow t. Gremmgh, 3 Ves. 151. 
 [p) In re Maddoek, 1902, 2 Ch. 220. 
 {q) Drakeford t. Wilks, 3 Atk. 540. 
 
THE MAXIMS OF EQUITY. 
 
 — instance of 
 equity avoid- 
 ing the law. 
 
 Bileot, 
 
 no estoppel. 
 
 Also, where a testator in advanced years and in ill- 
 health induced his niece to reside with him as his 
 housekeeper, on the verbal representation that he had 
 left her certain property by his will, — which in fact 
 he had prepared and executed in her favour, but subse- 
 quently by a codicil revoked, — the Court directed, that 
 the trusts iof the will in favour of the niece should be 
 performed, — Scil., upon the ground that a representation 
 that property is given (even though by a revocable instru- 
 ment) is fully binding and effective in equity, where the 
 person to whom the representation is made has acted upon 
 the faith of it to his or her detriment (r) . In other words, 
 the complete legal conveyance, effected by the operative 
 testamentary document, was left to subsist unaffected, but 
 to subsist subject to the contract in favour of the niece, 
 — upon the ground that the testator had already during 
 his lifetime, and to the extent of that contract, fettered 
 ■where his own free power of devise. It is to be noted, however, 
 that where the representation is of an intention simply (or 
 is a mere promise upon honour), it will not operate as 
 an estoppel, — ^for the purpose of avoiding the legal effect 
 of the document (s) ; and the estoppel (even where it is 
 a true estoppel) may have been discharged, meanwhile (t) . 
 
 (b) Originally 
 exclusive 
 juri sdiction : 
 Words of 
 limitation 
 in deeds and 
 wills, — trusts 
 executed, and 
 trusts execu- 
 tory. 
 
 Secondly, as regards Equitable estates. — In construing 
 the words of limitation (of trust estates) in deeds and 
 wills, Courts of Equity follow, in general, the " Rule in 
 Shelley's case," and also observe all the other rules of 
 law, — relative to the construction of (m) and necessity 
 for {x) words of legal limitation, — Scil., in a conveyance, 
 as distinguished from a mere contract for value to 
 convey («/). 
 
 (c) Originally 
 concurrent 
 and originally 
 exclusive 
 jurisdictions : 
 The Statutes 
 of Limitations. 
 
 It is instructive also, in connection with this maxim, 
 to observe the manner in which equity dealt with and 
 deals with the statute for the limitation of actions and 
 suits: That is to say, — Although the old Statutes of 
 
 '»■) Loffus V. Maw, 3 Giff. 592 ; Coles v. Pilkington, L. R. 19 Eq. 174. 
 
 '«) Jorden v. Money, 5 H. L. C. 185. 
 
 (t) Stone V. Hoskins, 1905, P. 194. 
 
 [ti] Lovattv. Williamson, 1894, 1 Oh. 661. ' 
 
 (x) Irwin v. Farkes, 1904, 2 Ch. 752. 
 
 («/) Trinrjham v. Greenhill, 1904, 2 Ch. 457. 
 
THE MAXIMS OF EQUITY. 
 
 Limitation were applicable to Courts of law only, yet 
 equity acted upon them by analogy, — and, in general, re- 
 fused relief where the statutee would have been a bar 
 at law. But further, equity always discountenanced 
 laches, and held that, to an equitable demand, laches was 
 as valid a defence in equity as the positive bar of time 
 at law, — So that, in the case of equitable titles and equitable 
 remedies, equity- required, in general, that the relief, 
 whether as regards land {z) or as regards personal estate {a), 
 should be sought within (at the latest) the period pre- 
 scribed for the like relief at law: And in accordance with 
 that old distinction (which still, in effect, continues), 
 whenever equity is dealing with equitable rights or is 
 granting equitable redress, and there has been laches 
 or delay, equity is even stricter than the law, — For 
 while there are no cases in which equity will give 
 relief (where the statutes would be a bar at law), yet 
 there are many cases where the statutes would not 
 be ,a bar at law, in which equity will notwithstanding 
 refuse relief (b) : In other words, equity, in its originally 
 exclusive jurisdiction, never exceeds (although it may stop 
 ehort of) the limit of time prescribed at law (c), and in 
 its originally concurrent jurisdiction, equity never either 
 exceeds or stops short lof the limit of time prescribed at 
 law (d) . But, of course, in the case of fraud, the Statutes 
 of Limitation run both at law and in equity, from the 
 time of the discovery only of the fraud (e); and although, 
 in actions for negligence, it may be otherwise (/) and 
 although mere ignorance of one's right of action will not 
 prevent the statutes from running (g), still negligence 
 which amounts to fraud (h), or ignorance induced by 
 fraud {i) will have that effect; and occasionally, but for 
 the purposes of equitable relief only, a mere mistake will, 
 in equity, be deemed a fraud (Jt) . 
 
 (z) SechfordM. Wade, 17 Ves. 99. 
 
 (a) Kmx V. Gye, L. R. 5 H. L. 656. 
 
 (b) BWke V. Gale, 31 Ch. D. 196. 
 
 (c) In re Maddever, Three Towns v. Maddever, 27 Ch. D. 523. 
 {d] FuUwoody. Fullwood, U Ch. D. 176. 
 
 (e) Gibbs v. Guild, 9 Q. B. D. 59. 
 
 (/) Booby V. Watson, 39 Ch. D. 178. 
 
 (y) Sains v. Buxton, 14 Ch. D. 537. 
 
 (A) Oliver v. Sinton, 1899, 2 Ch. 264. 
 
 (i) Mulli Coal Co. v. Osborne, 1899, A. C. 351. 
 
 (k) See Banuing on the Limitation of Actions, 3rd ed., pp. 226, 227. 
 
10 
 
 THE MAXIMS OF EQUITY. 
 
 (3) Qui prior 
 est tempore, 
 potior estjur 
 
 Illustration 
 of the rule. 
 
 (3) Where the equities are equal, the first in time shall 
 prevail, — TLat is to say, as between persons having only 
 True'statemeut equitable interests, if such equities, are in all other re.sp\ecfs 
 of the rule. equal (and not otherwise), the first in time shall be th& 
 first in right, — Qui prior est tempore, potior est jure : In 
 other words, in a contest between persons having only 
 equitable interests, priority of time is the ground of pre- 
 ference last resorted to; and a Court of Equity never 
 prefers the one to the other, — on the mere ground of 
 priority of time, — until, on an examination of the rela- 
 tive merits, it finds that there is no other gi'ound of pre- 
 ference between them. (I). For example, where A., B., 
 and C. (three vendors entitled in common to a piece of 
 land) sold the land to D.; and on the day for the com- 
 pletion of the purchase, they executed the deed of con- 
 veyance to D.; and in the body of the deed the payment 
 of the entire: purchase-money was acknowledged by A. 
 and B., and also by C; and A. and B., and also C, 
 severally also signed receipts endorsed on the deed of 
 conveyance for their respective purchase-moneys; ajid 
 thereupon C. (although in fact he had not been paid 
 his proportion of the purchase-money) negligently let D. 
 take away the deed of conveyance (together with the other 
 title-deeds) in his bag; and D. the same afternoon de- 
 posited the deeds with his bankers, — The Court held, that, 
 as between the harikers (equitable mortgagees by deposit) 
 and C. (unpaid vendor having equitable lien), the bankers, 
 although second in date, were first in right, because of 
 C.'s negligence {m): Which negligence, it is to be ob- 
 served, consisted in a positive act of imprudence on C.'s 
 part, — and of an imprudence which proximately led the 
 bankers to accept the proffered security of the title- 
 deeds (w). And but for such positive act on C.'s part, 
 C. would have retained his priority (o), — Because, gene- 
 rally, as between suooessive equitable estates, the first in 
 time will prevail (p) . 
 
 Limits of 
 th6 rule. 
 
 (?) CapellY. Winter. 1907, 2 Ch. 376. 
 
 (m) Rice v. Rice. 1 Dre-w. 73. 
 
 (m) Rimmer v. Webster. 19(12, 2 Ch. 163. 
 
 (o) Shropshire Union Railirnt/y. Reg., L. R. 7 H. L. 196. 
 
 \p) In re Samuel Allen, 1907, 1 Ch. 575. 
 
THE MAXIMS OF EQUITY. 11 
 
 (4) Where there is equal equity, the law shall prevail, (4) Where 
 —That is to say, where the defendant has a claim to. the equHy\hTiaw 
 passive protection of the Court, and his claim is equal to shall prevail, 
 the claim which the plaintiff has to call for the active 
 aid of the Court, the Court will do simply nothing, — So 
 that the defendant who has the legal estate will prevail: 
 And, for example, where the trustee of a sum of stock 
 for T., had {in a suit instituted hy T .) transferred what 
 purported to he T.'s trust fund into Court, and the fund 
 had heen thereafter treated as belonging to T.'s estate, — 
 And it appeared afterwards, that the trustee had provided 
 himself with the means of paying T.'s fund into Court 
 by fraudulently misappropriating funds which he held 
 in trust for B., — ^Upon the question, whether B. had the- 
 right to follow the money in Court as against T ., the 
 Court held that B. had no such right, — Scil., Because 
 B.'s right to follow the money was no greater than T.'s 
 right to retain it; and the circumstanm of the legal title 
 being held for T. was sufficient to create a preference in 
 T.'s favour (g); and the principle of that decision has 
 been followed in many modern cases. 
 
 A defendant may therefore, in general, set up, and sue- Defence of 
 oessfully set up, the defence that he has purchased the va[uabie con- 
 property for value and without notice: Because, firstly, sideration _ 
 where the defendant who sets up that defence has the / % p, • +jfl; 
 legal estate, and has obtained it at the time of his pur- having equi- 
 dhase, equity will grant no relief against him (r) ; and *^^^® defen- 
 although he should not have obtained the legal estate at dant'iegai 
 the time of his purchase, yet he may protect himself by equitahie 
 subsequently getting in the legal estate (s), so long as estate both, 
 he does it without becoming party to a breach of trust {t), 
 — Scil., because the equities of both parties being equal, 
 there is no reason why the purchaser should be deprived 
 of the advantage which he subsequently obtains at law by 
 his superior diligenro. Also, in the case of lands (m), 
 
 (}) Thorndike v. Sunt, 3 De G. & J. 563. 
 \r) Jones v. Fowles, 3 My. & K. 581. 
 (s) Saunders v. Sehew, 2 Vem. 271. 
 (t) Carter v. Carter, 3 K. & J. 617. 
 (m) Wilmot V. Fike, 5 Hare, 14. 
 
12 
 
 THE MAXIMS OF EQUITY. 
 
 although not in the case of personal estate (x), where the 
 purchaser has not actually obtained but has only the best 
 right to obtain the legal estate, he will be entitled to its 
 protection. And here note that, in the case of lands, 
 a purchaser for value who obtains possession of all the 
 title-deeds, — or who (failing that) takes a declaration of 
 trust from the trustee, — is considered to have the best 
 right to call for the legal estate in the lands, as against 
 any other merely equitable purchaser who has neglected 
 to do so (y) : All which rules apply also in favour of mort- 
 -whether legal or equitable (z) . 
 
 (b) Plaintiff 
 having legal 
 estate, and 
 defendant 
 equitable 
 estate. 
 
 (c) Plaintiff 
 having equi- 
 table estate 
 only, defen- 
 dant also 
 having equi- 
 table estate 
 only. 
 
 But, secondly, where the defendant who sets up the 
 defence has only the equitable title, and the plaintiff has 
 the legal title, — The defence, although it used to be good 
 where the plaintiff applied to the auxiliary jurisdiction 
 of the Court («), is not note, and since the Judicature 
 Acts, 1873 — 75, has not been, a good defence at all, either 
 to the diso'overy of, or to the delivery up of, the title-deeds 
 of an estate (b). And even under the old law, the defence 
 in question was never effective, in oases where the Court 
 of Chancery (concurrently with the Courts of Common 
 Law) afforde'd legal relief (c) ; or, generally, where the 
 plaintiff could prove his case, without requiring the Court 
 to aid him in doing so (d) . 
 
 Thirdly, where neither the plaintiff nor the defendant 
 had the legal estate, and neithet of them (in the case of 
 lands) had any better right than the other to call for the 
 legal estate, but each of them, had the equitable estate 
 only, — The Court never gave any aid or preference to 
 either, but determined their rights by reference to their 
 respective dates; and the same rule still holds good, — 
 Sdl., Because "every conveyance of an equitable in- 
 
 («) Roots V. Williamson, 38 Ch. D. 485. 
 \y) Buckle v. Mitchell, 18 Ves. 100. 
 (z) MaxfieUy. 'Burton, L. R. 17 Eq. 15. 
 
 (a) Basset v. Noaworthy, Rep. t. Pinch, 102 ; WaUwyn v. Lee, 9 Ves. 
 24. 
 
 [h) Ind-v. Emmerson, 12 App. Ca. 300. 
 
 (c) Newton v. Newton, L. R. 4 Ch. App. 143. 
 
 [d) Cooper v. Veaey, 20 Ch. Div. 611. 
 
THE MAXIMS OF EQUITY. 1^ 
 
 terest is an innooent conveyance, the grant of a person 
 entitled in equity passing only that which he is justly 
 entitled to, and no more, — so that, if the' estate be subject 
 to (e.g.) a prior mortgage, the grantee takes subject to 
 that, talcing only that which is left in the grantor" (e). 
 
 Fourthly, where the plaintiff has an " equity " merely, — (d) Plaintiff 
 an equity (e.g.) to set aside a deed for fraud, orto correct eqm'tymereiy, 
 it for mistake or accident, — and the defendant has both and not an 
 the legal and the equitable estate,— the Court will not in- estate^defen- 
 terfere: Where, therefore, a man (already married) went dant having 
 through the ceremony of marriage with a woman, and equitiwe' '^"'^ 
 then he and she sold and assigned to the defendant for estate. 
 value her life interest in a certain trust fund of the 
 woman's, — it was held, that, though she might not have 
 executed the instrument if she had been aware of the 
 fraud practised upon her, still such fraud oould not affect 
 the rights of the defendant (the bond fide purchaser (/)). 
 And woto bene, although the "equity" of the plaintiff An equity is, 
 (in such 3. case) to set aside the sale, is (for some pur- po^se^^n^"^' 
 poses) an equitable estate, — and is descendible and de- estate. 
 visable (g), — still such an equitable estate in the plaintiff 
 is not permitted to prevail against the complete legal (and 
 equitable) estate in the defendant. 
 
 (5) He who seeks equity, must do equity . — The general (5) He who 
 rule of the old common law having been, that when 3, must do'''*''' 
 woman married, all her personal property (not being her equity,— iiius- 
 separate estate) passed (in title) to her husband, including tSs'^axiiL 
 her ehoses in action which he could (during the coverture) 
 reduce into possession, — Therefore, the moment the hus- 
 band was obliged to seek the aid of a Court of Equity 
 towards the realisation of his wife's property, the Court 
 told him, — on the principle of this maxim, — "We will 
 help you to get this property on condition that you make a 
 fair settlement out of it for the benefit of your wif<e and 
 tihUd-ren ; land otherwise we will not aid you at all." Or 
 again, where a person had the true title to an estate, and 
 knowingly suffered some third person (who was ignorant 
 
 («) Phillips V. Phillips, 31 L. J. Ch. 321. 
 (/) Sturge v. Starr, 2 My. & K. 195. 
 Q) Dickenson v. Burrell, L. E. 1 Eq. 337. 
 
14 
 
 THE MAXIMS OF EQUITY. 
 
 of his title) to expend money in permanently improving 
 the estate, and then afterwards came forward asserting 
 his title to the estate, — although (upon proving his legal 
 title) judgment that he do recover the possession (together 
 with the improvements) would have been given for him at 
 law, still in equity {and noiu also in a Court of law), 
 the plaintiff jaust, in such a case, reimburse the third 
 person his expenditure {h) . 
 
 (6) He who 
 comes into 
 equity must 
 come with 
 clean hands, — 
 illustration of 
 this maxim. 
 
 (6) He who oomes into equity, must come with clean 
 hands. — For example, where an infant (fraudulently con- 
 cealing his age) obtained from his trustees part of a sum 
 of stock to which he was entitled only on coming of age; 
 and when of age (a few months afterwards), he applied 
 for and received the residue of the stock; and, subse- 
 quently, he instituted a suit against the trustees, to compel 
 them to pay over again the portion of the stock which 
 had been {improperly) paid by them to him during his 
 minority, — ^The Court held, that neither the infant (nor his 
 assignees) could enforce payment over again of the stock 
 paid during the minority {i), — Scil., because, although the 
 legal right ,of the plaintiff to be paid might continue 
 {the former payment having been no acquittance of the 
 debt at law), yet the legal right was deemed to be para- 
 lysed by the conflicting equity. Similarly, a married 
 woman {Ic) . But where, by reason of some initial ille- 
 gality in the contract itself, the legal right of action on 
 it is avoided, the defendant merely pleads the legal de- 
 fence of illegality {I), and is not required (in such a case) 
 to plead any equity ^.t all; and, it rather appears, that 
 any illegality, — whether in the contract itself {m) or in 
 the consideration for it, — which goes to the very root of 
 the contract {n), — avoids ,the right of action on it. 
 
 (7) Delay de- (7) Delay defeats , equities, — Otherwise, — Equity aids 
 — musteations '^^ vigilant, not the indolent. — In the words of Lord 
 
 of this maxim. 
 
 (A) Dann v. Spurrier, 7 Ves. 231 ; Powell v. Thomas, 6 Ha. 300. 
 (i) Overton v. Banister, 3 Hare, 503 ; and see Nail t. Punter, 5 
 555. 
 
 (Ic) In re Lush's Trusts, L. B. 4 Ch. App. 591. 
 (Z) St. John V. St. John, 11 Ves. 535. 
 (m) Gas Light v. Turner, 6 Bing. N. C. 666. 
 («) Lound T. Orimwade, 39 Ch. D. 605. 
 
 Sim. 
 
THE MAXIMS OF EQUITY. 15 
 
 Camden (o), "a Court of Equity has always refused its 
 aid jto ^tale demands, where the party has slept upon his 
 rights for a great length of time." — And even a com- 
 paratively short period of delay (that is, of laches or of 
 "standing by"), not satisfactorily accounted for, tells 
 heavily against a plaintiff in equity, suing in respect of 
 an equitable right or for equitable relief, — Scil., Be- 
 cause the delay is evidence of a ivaivex. of th© right 
 of action (p), — and sometimes is (or amounts to) a re- 
 lease of the very right itself (g); and, in such a case, 
 every intendment ,will be made in favour of the defen- 
 dant (r). Also, a plaintiff whose own right to equitable 
 relief is gone by laches may not, usually at least, get 
 that relief indirectly by suing in the name of the Attorney- 
 General (s) . But as regards reversioners and remainder- 
 men, although laches is imputable to them, it is not so 
 readily imputed to them, — Because they may, in general, 
 -wait till the reversion or remainder falls into possession 
 before they ^ue (t); and the delay may otherwise be satis- 
 factorily accounted for, — in which latter case, it will, 
 usually, not matter (m) . 
 
 (8) Equality is equity. — Although, if two persons pur- (8) Equality is 
 chase an estate, and pay the purchase-money in equal ^,?™r^'7^ 
 portions, and take the conveyance to them jointly, the this maxim, 
 survivor will take the whole estate both at law and in 
 equity, — Still, where, in such a case, equity can lay hold 
 of any circumstance to prevent the survivorship, it will 
 do 60, — Scil., because joint-tenancy is not favoured in 
 equity. Therefore, where four or more adventurers pur- (a) Pm-chase- 
 CHASED lands (x), and found the purchase-money in un- ^°^^y , . 
 
 7 1 1 n 1 11 111-1/. advanced m 
 
 equal shares, — and ail that appeared by the deed itself, — unequal 
 That one circumstance of inequality was held sufficient to 
 make them partners, — So that, although the legal estate 
 survived, yet the survivors were in equity but trustees 
 
 (o) Smith V. Clay, 3 Bro. C. C. 460 ; Sovenden t. AnnesUy, 2 Sch. & 
 Lef. 633; Brooks v. Mucldeston, 1909, 2 Oh. 519. 
 
 (p) Pettiward v. Preicott, 7 Ves. 541 ; Roberts v. Tunstall, 4 Ha. 257. 
 
 (q) Stackhouse v. Sarnston, 10 Ves. 4.13. 
 
 {r) Watt V. Jssets Co., 1905, A. C. 317. 
 
 .(s) A.-G. V. Grand Junction Canal, 1909, 2 Oh. 505. 
 
 (t) Life Association of Scotland v. Siddall, 3 De Gr. P. & J. 68. 
 
 (if) Lindsay Pttroleum v. Surd, L. R. 6 P. C. 221. 
 
 (.r) lake t. Gibson, 1 Bq. Ca. Abr. 294. 
 
16 
 
 THE MAXIMS OF EQUITY. 
 
 (b) Money 
 advanced on 
 mortgage in 
 equal or in 
 tmequal abaxea. 
 
 (9) Equity 
 looks to the 
 intent rather 
 than to the 
 form, — illns- 
 tration of this 
 
 (10) Equity 
 looks on that 
 as done which 
 ought to have 
 been done, — 
 illustration of 
 this maxiux. 
 
 for themselves ^nd the others in proportion to the sums 
 advanced. Also, where two persons advance ^ sum of 
 money (whether in equal or in unequal shares) by way 
 of MORTGAGE, and take the mortgage to them jointly, and 
 one of them dies, the survivor shall not in equity have 
 the whole money due on the mortgage; but the repre- 
 sentatives of the deceased mortgagee shall have his pro- 
 portion of it, — Because the mere circumstance of the 
 transaction being a loan is sufficient to repel the pre- 
 sumption of a joint-tenanoy («/). 
 
 Nor will the Court treat the mortgage as joint in equity, 
 although it should contain a clause to the effect that the 
 money belongs ;to the lenders on ft joint account (z), — 
 which clause is a merely usual clause, and is not (for 
 this purpose) conclusive at all. And even in the case 
 of p. purchase enuring both at law and in equity as a 
 joint purchase, equity will .treat a mere contract to aliene 
 (being a contract for value) as a severance of the 
 jointure («), — so as to exclude in equity the incident of 
 survivorship ; and a marriage settlement (if ante-nuptial) 
 will ;for this purpose be deemed a contract for value (6), 
 although ,the marriage itself would not (save as regards 
 the pure personal chattels of the wife) have operated as 
 a severance (c). 
 
 (9) Equity looks to the intent, rather than to the form. 
 — This maxim lies at the root of the equitable doctrine of 
 relieving against forfeitures, penalties, and the like (d) — 
 all of which subjects are fully considered in the later 
 cbapters of this treatise. 
 
 (10) Equiti/, looks on that as done, which ought to 
 have been done. — That is to say, a Court of Equity will 
 treat a contract or agreement for value to do a thing, as if 
 the thing was already done, — although not in favour of an 
 heir-at-law or other volunteer (e) : Wherefore all agree- 
 ments for value are considered as performed as from the 
 
 {y) Morley v. Bird, 3 Ves. 361. 
 
 (z) Smith V. Sibthorpe, 34 Ch. D. 732. 
 
 {a) Brown v. Raindle, 3 Ves. 256. 
 
 (J) Burnaby's case, 28 Ch. D. 416 ; Hewett v. Ballett, 1894, 1 Ch. 362. 
 
 («) Sughes v. Anderson, 38 Ch. D. 286. 
 
 [d) Barton v. New South Wales Bank, 15 App. Ca. 379. 
 
 («) Chetwyndy. Morgan, 31 Ch. Div. 596. 
 
THE MAXIMS OF EQUITY. 17 
 
 time when (according to their tenor) they ought to have ' 
 been performed, — and they have (for most purposes) all 
 the same consequences as if they had then been completely 
 done. For example, agreements for leases, where they 
 are specifically enforceable (/), — and especially where the 
 possession has been given {g), — are regarded as actual 
 leases {h); and money by deed covenanted (or by will 
 directed) to be laid out in land, is (for the purposes of 
 its further devolution) treated as already land in equity, 
 from the moment that the deed and will respectively 
 operate. 
 
 (11) Equity imputes an intention to fulfil an obliga- (H) Equity 
 tion. — Where a man is under an obligation to do an act, iSentioiTto 
 and he does some other act which is capable of being fulfil an oWi- 
 considered as a fulfilment of his obligation, such latter act frafen rf1;hS" 
 shall be so considered, — Because it is right to presume, maxim, 
 that a man intends to be just before he affects to be gene- 
 rous. Therefore, if a husband covenants with the trustees 
 
 of his marriage settlement to pay to them the sum of 
 £2,000, to be laid out by these trustees in the purchase of 
 lands in the county of D., to be settled upon the trusts 
 of the settlement, — although the covenantor never pays 
 the money to the trustees, but after the marriage pur- 
 chases lands in the specified county, and takes a convey- 
 ance thereof to hims2lf in fee, and then dies intestate, with- 
 out bringing' the lands into settlement, — The purchased 
 lands are considered in equity as purchased by the hus- 
 band in pursuance of his covenant, and as being (in fact) 
 his performance of that covenant {i) . 
 
 (12) Equity acts in personam. — This maxim is descrip- (12) Equity 
 tive of the procedure in equity; and it is of the first im- plrsmam,— 
 portance to understand it, as well in its application as in illustrations of 
 the limits of its application: ^^™* 
 
 And, Firstly, as regards the Application of the maxim. 
 — In Penn v. Lord Baltimore (1750), 1 Ves. Sen. 444, — 
 
 (/) Foster v. Seeves, 1892, 2 Q. B. 255. 
 
 Ig) Zimbltr v. Abrahams, 1903, 1 K. B. 577. 
 
 (A) Wahh V. Lonsdale, 21 Ch. D. 9 ; Swain v. Ayres, 21 Q. B. D. 289. 
 
 (i) Sowden v. Sowden, 1 Bro. 0. C. 582. 
 
18 THE MAXIMS OF EQUITY. 
 
 which, was a suit regarding land in the United States 
 {Sail., beyond the jurisdiction),— Lord Hardwioke, L.C., 
 stated (in effect) as follows:— "Although this Court 
 cannot (in the case oi lands situate abroad^ issue execu- 
 tion in rem, still I can enforce the judgment of the Court 
 (which is in personam) by process in personam, — e.g., by, 
 attachment of the defendant when the defendant is ivithin 
 the jurisdiction (or by sequestration of his goods or lands 
 ivithin the jurisdiction), until he do comply with the order 
 or judgment of the Court, which is against himself {the 
 defendant) personally, to do or to abstain from doing 
 some act." And a,ccordingly, where the title itself to 
 the land is not in question, the Court is in the habit of 
 entertaining actions for an account of the rents and profits 
 of the land, and for a receiver (fc) ; and for specific per- 
 formance of an agreement for a sale or lease of the land, 
 and for an injunction relative to the use of the land (Z), — 
 but not also for damages in respect of a trespass to the 
 land (m) . And the Court will also, in a proper case, give 
 judgment for the foreclosure of mortgages (n), and for 
 the enforcement of equitable charges (o), and for the exe- 
 cution of conveyances of land situate abroad, and whether 
 within the King's dominions or not. Also, by the Trustee 
 Act, 1893 (p), s. 41, the Court is now enabled to make 
 vesting orders as to land (and personal estate) situate in 
 any part of the King's dominions (other than Scotland). 
 
 Secondly, as regards the Limits to the Application of 
 the maxim. — If in any case the very title itself to the 
 lands comes in question, the Court will not direct even an 
 account of the rents and profits, or of the sale-proceeds 
 of the lands (q), — and still less will the Court set aside 
 (on the ground of fraud) any particular conveyance of 
 such lands (r), — Scil., Because the questions involved are 
 exclusively appropriate for the country in which the pro- 
 perty is situate {lex loci rei sitce). Also, in respect of a 
 
 (k) Mercantile Investment Co. t. River Plate Co., 1892, 2 Ch. 303. 
 
 (t) Ex parte Pollard, 1 Mont. & Ch. 239. 
 
 (m) Jle Sousa v. British South Africa, 1893, A. C. 602. 
 
 («) Toller V. Carteret, 2 Vera. 494 ; Paget v. Ede, L. R. 18 Eq. 118. 
 
 (o) Buder v. Amsterdam Trustees, 1902, 2 Ch. 132. 
 
 \p) 56 & 57 Vict. 0. 63. 
 
 {q) In re Eawthorne, 23 Ch. Biv. 743. 
 
 (?) Desehamps v. Miller, 1908, 1 Ch. 856. 
 
THE MAXIMS OF EQUITY. 19 
 
 trespass to lands situate abroad, the Court has no jurisdic- 
 tion (s) . Also, for a rent of inheritance issuing out of 
 land abroad (and which is only recoverable by the local 
 action of deht), the Court has no jurisdiction {t). More- 
 over, if in any case there is nothing which binds the con- 
 ecienco of the defendant in particular, — as where there is 
 no contract whatever on the defendant's part which the 
 Court can be asked to enforce, but the defendant is (e.g.) 
 a mere assignee or transferee of the original contract,- — 
 The Court will not (nor can) enforce (against such a 
 defendant) any equitable claim incident to lands 
 abroad (u) ; and where the relief asked for by the plain- 
 tiff in England is properly incidental to the relief 
 grantable by the foreign tribunal (within whose jurisdic- 
 tion the lands abroad are situate), the English Courts will 
 leave the plaintiff to effectuate his incidental rights before 
 the foreign tribunal (x) . 
 
 (s) Ds Sousa V. British South Africa^ supra, 
 {t) Whitaker v. Forbes, L. R. 10 C. P. 583. 
 \ti) Vincent v. Godson, i De Gr. M. & G-. 546. 
 {x) Norton v. Florence Land Co., 7 Ch. D. 332. 
 
 c3 
 
20 
 
 PART 11. 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 CHAPTER I. 
 
 TRUSTS GENERALLY. 
 
 Uses, origin ANCIENTLY, a simple gift of lands (by way of feoffment) 
 °*- to a man and his heirs, accompanied with livery of seisin, 
 
 was all that was necessary in the law to convey to him an 
 estate in fee simple in the lands. But, latterly, a new 
 species of estate unknown to the ancient law came into 
 existence: That is to say, — The early Statutes of Mort- 
 main having prohibited lands being given to religious 
 houses or to other corporations, the device was resorted to, 
 of procuring the feoffment to be made to some third 
 person to the use of the religious house or corporation; 
 and in process of time, such feoffments to one person to 
 the use of another became usual, even in cases where no 
 question of religion (or of a corporation) entered. And 
 in the case of all such feoffments, although the person 
 (and he only) to whom the seisin was delivered, was at 
 law considered the owner of the land, still the mere 
 delivery of the seisin was not in equity deemed conclusive 
 of the true ownership, — That is to say, equity was unable 
 (it is true) to take from the feoffee the title which the law 
 gave him, — Soil., because equity never sets aside, however 
 much it may avoid, the law, — But equity compelled the 
 feoffee to make use of his legal title for the benefit of the 
 person who had the true beneficial ownership : And accord- 
 ingly, if A. conveyed land to B. to the use of C, that 
 declaration of the use was held to charge the conscience 
 of B., — So that, if B. refused to account to his cestui 
 que me (C.) for the profits, the Court of Chancery gave 
 C. redress; and when the right of C. became thus recog- 
 
TRUSTS GENERALLY. 
 
 21 
 
 nised in the Court of Chancery, C. became in fact the 
 equitable (or true beneficial) owner, and B. remained 
 merely the legal owner. And note, that by this device Advantages 
 of uses, many of the rules and incidents of property were advantages of 
 in danger of being defeated, — and doubtless, in many the use. 
 cases, were defeated; but the advantages which resulted 
 from the device greatly outweighed its legal disadvan- 
 tages: Of which advantages, the power of disposing of 
 the lands by will was then the most valuable. 
 
 The inroads which the device had made and was Statute of 
 mating on the ancient laws of tenure induced the Legis- vill. c. lo,— 
 lature to pass a statute for the regulation of these uses, converted the 
 viz., the Statute of Uses (a): By which statute, it was legal estate, 
 enacted, that where any person stood seised of any lands ^'^^i? ^^'^ 
 to the use of any other person, the person that had such 
 use (by which was meant the person beneficially entitled) 
 should be deemed in lawful seisin and possession of the 
 lands and for such estate as he had in the use, — That is tO 
 say, the use became converted into the land; and it did 
 not matter, for this purpose, whether the use (in such a 
 case) was expressed in words or was merely implied,— 
 for, in either case, where the use was, there also was the 
 legal ownership of the land. 
 
 The professed object of the Statute of Uses, which statute of 
 
 , j_*j_ji -jii • p , PI Uses, — failure 
 
 was to extirpate the equitable use, gave, m fact, a fresh ofitsohiect; 
 stimulus to that use: That is to say, — The common law also, advan- 
 judges having determined, that if A. (the legal owner) was therefrom, 
 directed to hold the land to the use of B., to the use of C, "^dii^ectly. 
 the statute would carry the land to B. at law, but would 
 carry it no farther, — for the use in favour of C. was "a 
 use upon a use," — i.e., a second use upon or after a first 
 use, which the statute had no remaining energy to reach, 
 ■ — Therefore, equity (considering the plain intention of 
 the gift) held, that the us© in favour of C. should have 
 effect as the old equitable use, — So that, after the passing 
 of the statute, if it was desired to create an interest purely 
 
 (a) 27 Hen. VIII. o. 10. 
 
22 
 
 THE OEI GIN ALLY EXCLUSIVE JUEISDICTION. 
 
 equitable, nothing more was necessary than to limit a 
 use upon a use, or to declare a second use ; and this second 
 use was, for distinction's sake, commonly called the trust. 
 
 Property to 
 which the 
 Statute of 
 Uses is inap- 
 plicable. 
 
 The Statute of Uses was confined to lands, tenements,. 
 and hereditaments, — and therefore extended not to other 
 species of property. And further, the statute (upon its 
 own words) was applicable only where one person stood 
 "seised" to the use of another; and seisin (strictly sO' 
 c&lled) applying- to freehold lands only (and not to lease- 
 hold or to copyhold lands), therefore the statute was con- 
 fined to the use of freehold lands (&); and as to freehold 
 lands even, only uses of the description called passive 
 uses (including passive trusts (c)), were within the 
 statute. 
 
 Statute of 
 Frauds, — 
 trusts, origin- 
 ally created 
 by parol, re- 
 quired hence- 
 forth in general 
 to be created 
 by writing. 
 
 Prior to the Statute of Frauds (d), trusts might have 
 been created (and also transferred) by word of mouth 
 only; but it was by that statute enacted, — By s. 7, that all 
 declarations or creations of trusts or confidences of any 
 lands, tenements, or hereditaments should be " mani- 
 fested and proved" (e) by some writing, signed by the- 
 party by law enabled to declare such trusts (/), or hy 
 his last will in writing; and by s. 9, that all grants and 
 assignments (that is to say, transfers) of ,any trust or 
 confidence whatever should likewise be in writing, signed 
 by the assignor (or transferor), — or by his last will; but, 
 by s. 8, the statute recognised two exceptions, namely: 
 (1) Trusts resulting by implication of law (g); and (2) 
 Trusts transferred or extinguished by operation of law. 
 
 Property to The Statute of Frauds clearly, therefore, extends to 
 Stettrte^f freehold lands, and to copyhold lands (li), and to lease- 
 Frauds is hold lands (or chattels real) (i) ; but chattels personal are 
 
 applicable. 
 
 (i) Gilb. Us. 79 ; Leach v. Jay, 6 Ch. D. 496 ; 9 Ch. D. 42. 
 
 (c) Williams V. Waters, 14 Mee. & "W. 166. 
 
 {a) 29 Car. II. c. 3. 
 
 (e) Randall v. Morgan, 12 Ves. 73. 
 
 (/) Kronheim v. Johnson, 7 Ch. Div. 60. 
 
 Ig) Bellasis v. Compton, 2 Vern. 294. 
 
 (h) Withers y. Withers, Amb. 151. 
 
 (i) Forster v. Bale, 3 Ves. 669. 
 
TRUSTS GENERALLY. 
 
 not within the 7th section (7c), although they are (semble) 
 ■within the 9th section, of the Act: And here note, that 
 when the declaration of the trust is in writing, the writing 
 must, as a general rule, contain all the terms of the 
 trust (l), and must also be signed by the true beneficial 
 owner (m), — although, in the case of charitable funds 
 which have been supplied by voluntary contributions, the 
 persons who (as a body) have been entrusted with the 
 custody of them have an implied authority to declare the 
 trusts for the time being applicable thereto (n) ; and a 
 majority of such trustees may bind the minority of 
 them (o) . 
 
 {/c) Benbow v. Townsend, 1 My. & K. 506. 
 (?) Smith V. Matthews, 3 De G. P. & J. 139. 
 (m) Dye v. Dye, 13 Q. B. D. U7. 
 (n) Att.-Gen. v. Mat/iiesm, 1907, 2 Ch. 383. 
 (o) £p. of London v. Whiteley, 1910, W. N. 63. 
 
 23 
 
24 
 
 CHAPTER II. 
 
 EXPRESS PRIVATE TRUSTS. 
 
 An Express Private Trust is a trust created in express 
 words by the author thereof; and these trusts are^ of many 
 varieties : 
 
 {A) Executed 
 or Executory 
 Trusts. 
 
 {A) Firstly, Trusts Executed and Executory. 
 
 A trust is said to be executed, when no act is necessary 
 to be done to constitute it, — as where an estate purports! 
 to be conveyed unto and to the use of A. in trust for B., 
 and the conveyance itself actually conveys the estate: 
 And, on the other hand, a trust is said to b© executory, 
 when there is a mere direction to convey upon trust, but 
 the instrument which contains the direction does not of 
 itself effect the conveyance. 
 
 As to trusts 
 executed, — 
 equity follows 
 the law. 
 
 As to trusts 
 executory, — 
 equity may or 
 may not f oUow 
 the law. 
 
 In the case of a trust executed, equity puts the same 
 construction on the words of equitable limitation which 
 the law puts on words of legal limitation ; and therefore, 
 if an estate is vested in trustees and their heirs, in trust 
 for A. for life, with remainder in trust for the heirs of 
 the body of A., A. takes an estate tail (a). But in thei 
 case of an executory trust, equity will not invariably 
 construe with legal strictness the technical expressions in 
 the document, — but will (in completing the executory 
 trust) mould it according to the intention of the party; 
 and it is only where no intention contrary to the legal 
 effect appears, that equity construes the technical words 
 of an executory trust in strict accordance with their legal 
 meaning (&). 
 
 a) Jermise v. Duke of Northumberland, 1 J. & W. 659. 
 Olenorchy v. Bomille, Ca. t. Talb. 8. 
 
EXPRESS PRIVATE TRUSTS. 25 
 
 Executory trusts are to be found either (1) In Mar- (a) Marriage 
 riage .Articles, or (2) In Wills: And firstly, in the case ^^^'^t^^-^^'^^y, 
 of Marriage Articles, the very object of these (which is to implied. 
 provide for the issue of the marriage) is apparent on the 
 face of the articles themselves ; but secondly, in the case (t) '^l'^^'~ 
 of Wills, the intention can only be gathered from the qufrestobe' 
 vrt)rds the testator has used: If, therefore, by the Mar- expressed, 
 riage Articles, real estate is settled upon the issue of the (a) Executory 
 settlor, after an estate for life in the settlor, and in such M^rfage 
 terms as would give the settlor himself an estate tail, — p''*'^''^ 
 thereby enabling him to defeat the provision intended decree a strict 
 for his issue, — Equity will, in conformity with the pre- settlement in 
 sumed intention of the parties, decree a settlement to be ^Jh°^J^ed 
 made upon the settlor for life only, with remainder to intention, 
 the issue of the marriage successively in tail as purchasers. 
 For example, in Trevor v. Trevor (c), where A., in con- 
 sideration of a then intended marriage, covenanted with 
 certain trustees to settle an estate to the use of himsslf 
 for life, with remainder to the use of his intended wife 
 for life, with remainder to the use of the heirs mala of 
 him on her body begotten (and the heirs male of such 
 heirs male issuing), with remainder to the use of the 
 right heirs of the settlor for ever, — Lord Macclesfield said, 
 that the articles were only " Heads of Agreement," — and 
 were to be moulded so as to effectuate the intention; and 
 accordingly, he held, that A. was entitled to an estate 
 for life only, with remainder to A.'s wife for her life; 
 and that the eldest son (who, by contracting a low mar- 
 riage, had incurred his father's displeasure) took by pur- 
 chase, as tenant in tail in remainder, — so that A. (not 
 being himself the tenant in tail, as he erroneously sup- 
 posed himself to be) oould not defeat the eldest son of 
 his estate. 
 
 But, in the case of Wills, where there is a devise to (b) BxecutoY 
 trustees, in trust to convey to A. for life, and after his Jcourt'sreks' 
 decease to the heirs of his body; and there is nothing {on for the ex- 
 the face of the will) to show, that the issue of A. are g^^^^^^'i "'t^'^- 
 to take as purchasers, — The rule of law will prevail, and construed 
 A. himself will take the estate ta,il(d). On the other strictly, in the 
 
 absence of an 
 expressed in- 
 
 (e) 1 P. W. 622. 
 
 {d} SweetappU v. Bindon, 2 Vern. 636. 
 
26 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 tention to the 
 contrary, — 
 Sweetapple v. 
 Bindon. 
 Coustrued 
 according to 
 contrary in- 
 tention, — if 
 expressed, — 
 PapiUon V. 
 Voice. 
 
 (a) The exe- 
 cuted use. 
 
 (b) The exe- 
 cutory use. 
 
 hand, if {on the face of the will) there are expressions 
 which show that the testator intended a strict settlement, 
 the Court will effectuate that intention. For example, 
 in Papillon v. Voice (e), where A. bequeathed a sum of 
 money to trustees in trust to be laid out by them in the 
 purchase of lands, and directed the lands to be settled 
 on B. for life, with remainder to the heirs of the body 
 of B., with remainder over, and with power io B. to make 
 a jointure ; [and (by the same will) A. devised lands to 
 B. for life with remainder to the heirs of the body of 
 B., with remainder over], — Lord Chancellor King de- 
 clared (firstly), that as regards the lands devised to B. 
 for life, with remainder to the heirs of the body of B., 
 the words operated as words of limitation, creating an 
 estate tail in B.; but (secondly) that as regards the 
 lands to be purchased and thereafter to be settled, these 
 should be limited to B. for life only, with power in him 
 to make a jointure, with remainder to B.'s first and other 
 sons in tail male successively. And it will have been 
 observed, that the already acquired lands devised by the 
 'will were so devised upon an executed trust, — so that the 
 Rule in Shelley's case could not but apply; but that the 
 lands to be purchased, and then afterwards to be settled, 
 devised by the will, were so devised upon an executory 
 trust, — so that the Court was free (as regards these latter 
 lands) ito apply (or not to apply) the Rule in Shelley's 
 case, according ,as it found (or did not find) in the will 
 itself some reference to a marriage (or some other in- 
 dication of an intention contrary to the strict legal mean- 
 ing of the words). 
 
 (B) Secondly, Voluntary Trusts and Trusts for Value. 
 
 (B) Voluntary YoT the due understanding of the distinction between 
 Trusts/or these two classes of trusts, there are three general rulea 
 Value. to be borne in mind, that is to say: — 
 
 General rules. Firstly, the rule, — Ex nudo pacto non oritur actio, — 
 paeifnon"^" *'^^*' °° action lics upon an agreement without considera- 
 oritur actio,— tion, — Which rule is as universally recognised in equity 
 
 "No action lies 
 
 {e) 2P. W. 471. 
 
EXPKESS PRIVATE TRUSTS. 
 
 27 
 
 ns it is at law. And (e.g.) in Jefferys v. JefferyS (f), uponanagiee- 
 whore a father by voluntary deed conveyed certain free- ^^°idera^°"' 
 holds and covenanted to surrender certain copyholds to tion." 
 trustees, in trust for his daughters; and he afterwards 
 devised the .same "freehold and copyhold estates to his 
 widow by a will dated subsequently to Preston's Act, 
 1815 (g), — So that the will (regarded as an assurance) 
 was complete not only as to the freehold lands but also 
 as to the copyhold lands, while the deed (regarded as 
 an assurance) was complete as to the freeholds but in- 
 complete as to the copyholds, — In a suit instituted by 
 the daughters after the testator's death, to have the trusts 
 of the deed carried into effect, and to compel the widow 
 to surrender to them the copyholds to which she had mean- 
 while been .admitted, — The Lord Chancellor said, that the 
 title of the daughters to the freeholds was " complete, 
 and being iirst in date was also first in right; but with 
 respect to the copyholds, the Court would not execute 
 a voluntary contract," — Soil., would not decree the widow 
 to surrender the copyholds to the daughters : And accord- 
 ingly, the widow kept the copyholds, but the daughters 
 got the freeholds. 
 
 Secondly, the rule, — That an imperfect conveyance is (2) imperfect 
 (in equity) regarded as a contract to convey, — Which ev?denoe"ol'a 
 contract is binding or not binding as the case may be, — contract. 
 That is to say, (1) An imperfect conveyance, if for valu- 
 able consideration, is binding; but (2) An imperfect con- 
 veyance, if voluntary, is not binding: In other words, 
 (1) A conveyance for value is binding, although imper- 
 fect; but (2) A voluntary conveyance is not binding, if 
 imperfect (A). 
 
 And Thirdly, the rule, — That a voluntary conveyance, i^} Tnistmay 
 if perfect, will be binding (i): Wherefore, in Ellison v. consideration. 
 Ellison (Jc), Lord Eldon said, — " If you want the assist- 
 ance of the Court to constitute you a cestui que trust, 
 and the instrument is voluntary, you shall not have that 
 
 (/) Or. & Ph. 138. 
 
 \g) 55 Geo. III. c. 192. 
 
 Ih) Ross's case, 34 Ch. D. 43 ; Eardinge v. Cobden, 45 Ch. D. 470. 
 
 li) Jejferys v. Jefferys, supra; Paul v. Paul, 20 Cli. D. 742. 
 
 (A) 6 Ves. 656. 
 
3o THE OEIGINALLY EXCLUSIVE JURISDICTION. 
 
 assistance," — Implying that, if you are already com- 
 pletely "constituted," then you may (although you are 
 a volunteer) enforce your rights under the deed. 
 
 Sl?'«°r«s< ^^^ ^* ^^^^ ^'^ found, in fact, that all the cases which 
 been con- havo been decided on voluntary trusts, v»rhether in favour 
 stituted? of or against the volunteers, have turned upon this single 
 
 inquiry, — Has the trust been completely constituted? 
 Because if so, it is binding; and if not so, it is no good 
 at all, even as a ground of action for completely consti- 
 tuting it. 
 
 I. Donor, both Therefore, Firstly, if the conveyance upon trust for 
 table OTraer"^ ^^^ donoe has been actually and effectually made, equity 
 
 (a) Trust com- wiU enf orc6 the trust even in favour of a volunteer, as 
 pieta: against not only the donor himself, but also as against aU 
 ance upon^'^'''' Subsequent volunteers. And the rule is the same, where 
 trust; the donor simply declares himself a trustee of the pro- 
 ration'f^t'% perty for the donee, — Because, note, that in Jefferys v. 
 
 Jefjerys, supra, the voluntary deed (which contained the 
 covenant to surrender) did not contain any such declara- 
 tion of trust; but if it had contained such a declaration 
 (additional to the covenant to surrender) it would have 
 been a perfect document (Z). 
 
 (b) Trust not But, Secondly, where there is no declaration of trust, 
 irecSise — ^^ fact, — nor any intention of declaring a trust, — but only 
 (I) no d'eclara- an attempted legal conveyance which is imperfect, the 
 tion of trust; intended trust will fail (to). And in one case (w), the 
 piete'oouvCT- mere failure of the voluntary assignor (of certain turn- 
 anoeupon pike bonds) to observe the formalities required {by the 
 
 TurnpiJce Road Act) for the complete efficacy of the 
 assignment, was held fatal. 
 
 Where the property purporting to be assigned was such 
 that it could not be completely transferred at law, the 
 rule was, that the purported conveyance or assignment 
 of it was good, if the donor had done all that he could to 
 perfect ihe assignment : For example, in Fortescue v. 
 Barnett (o), where J. B. by deed assigned his life policy 
 
 {l) Steel -V. Walker, 28 Beav. 466. 
 Un) Antrobus v. Smith, 12 Ves. 39. 
 («) Senrle \. Law, 15 Sim, 95. 
 (o) 3 My. & K. 36. 
 
 trust. 
 
EXPRESS PRIVATE TRUSTS. 29 
 
 for £1,000 to trustees, upon trust for the benefit of his 
 sister and her children; and he duly delivered the deed to 
 the trustees, but kept the policy in his own possession; 
 and (no notice of the assignment having meanwhile been 
 given to the office) J. B. afterwards for value surrea- 
 dered the policy to the office, — ^Upon a biU filed by the 
 trustees of the deed against the executors of J. B. (then 
 deceased), to have the value of the policy replaced out of 
 his estate, — The Court held, that (upon the delivery of 
 the deed) no act remained to he done hy the grantor to 
 give effect (Sail., as against himself) to the assignment of 
 the policy, — and his estate was liable, therefore, to make 
 good the value of the policy assigned by the deed. And 
 in the somewhat similar case of Pearson v. Amicable 
 Assurance Office (p), the Court arrived at the same con- 
 clusion, — viz., that the assignment, being by deed, was 
 complete, and the gift perfect and binding. Also, where 
 a husband assigned leaseholds (q), or assigned ground 
 rents (r) to his wife, without the intervention of a trustee, 
 and the assignment was by deed, — The Court held, that 
 the assignment was complete, although (by the then state 
 of the law) it left the husband still possessed of the legal 
 estate, — that defect not being a neglect of the party. 
 
 But, although (as regards furniture and other chattels 
 which are of a nature to admit of delivery) a gift by a 
 husband to his wife by delivery merely (and without 
 any deed), may be good (s), still, a mortgage debt cannot 
 be effectually given by the mere delivery of the title 
 deeds (t), nor a bond debt by the mere delivery of the 
 bond (m), — a deed being necessary in all such latter class 
 of cases. But an assignment which is incomplete in the 
 first instance may afterwards operate as a complete assign- 
 ment, — as where (e.g.) the imperfect donee is appointed 
 the voluntary donor's executor (x), — or even one of his 
 executors {y), — but not invariably so (z) . Also, an 
 
 {p) 27 Beav. 229. 
 
 (}) Fox V. Hawks, 13 Ch. D. 822. 
 
 (r) Baideley v. BaddeUy, 9 Ch. D. 113. 
 
 (s) Grant v. Grant, 34 Beav. 623. 
 
 \t) Shillito V. Snbson, 30 Ch. D. 396. 
 
 (a) Edwards v. Jon'S, 1 My. & Cr. 226. 
 
 (x) Sirong v. Bird, L. R. 18 Eq. 31.5 : Gripnv. Griffin, 1899, 1 Ch. 408. 
 
 (y) Stewart v. McLa'-ghlin, 1908, 2 Ch. 251. 
 
 (z) In re Innes, Innes v. Innes, 1910, 1 Ch. 188. 
 
30 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 assignment of a mortgage debt (if the assignment is by- 
 deed) will be a complete assignment in the first instance 
 even, although the security for the mortgage debt should 
 not be also assigned by the deed (a) . 
 
 II. Donor only 
 cqnitatle 
 owner, — 
 (a) Trust 
 complete : 
 (1) By direc- 
 tion to trustees 
 to hold in 
 trust ; 
 
 (2) By con- 
 veyance upon 
 trust. 
 
 Where, in any of the above cases, the donor or settlor 
 has only the equitable estate or interest in the property, if 
 he directs the trustees (in whom the legal estate is), to 
 hold the property in trust for the donee, a trust is well 
 and irrevocably created (6), — the direction only requir- 
 ing to be in writing as regards lands (whether freeholds, 
 leaseholds, or copyholds) ; and for the validity of a trust 
 so created, no notice of the direction need be given to the 
 trustees, — such notice being only necessary as against 
 third parties. Also, if the donor or settlor (having only 
 the equitable estate or interest in the property) assigns 
 his equitable interest in the property, — in the case of 
 lands, by conveying his equitable interest therein; and in 
 the case of personalty, by assigning his equitable interest 
 therein, — and a deed is used, — that will make a com- 
 plete gift, as regards both lands (c) and goods (d). 
 
 Summary of 
 the law. 
 
 The whole law as to voluntary trusts may be summarised 
 as follows: — In order to render a voluntary settlement 
 valid and effectual, the donor or settlor must have done 
 everything which (according to the nature of the property 
 comprised in the gift or settlement) was necessary to be 
 done in order to transfer the property; and he may do 
 this either (1) by actually transferring the property to 
 the persons for whom he intends to provide, or to a trustee 
 for them; or (2) by declaring himself a trustee of the pro- 
 perty for these persons. But in order to render a volun- 
 tary settlement binding, one or other of these modes must 
 be resorted to, — Scil., because there is no equity to per- 
 fect an imperfect gift; and where the intention is to 
 transfer the property (and not to declare a trust of it), 
 the Court will not treat the imperfect transfer as a de- 
 
 (b) SiUs V. Tatham, 1891, 1 Ch. 82. 
 (i) Sill V. Cureton, 2 My. & K. 503. 
 
 (c) Gilbert v. Overton, 2 H. & M. 110. 
 
 \d) Eekeioich v. Manning, 1 De G. M. & G. 178. 
 
EXPRESS PRIVATE TRUSTS. 31 
 
 claration of trust, — merely ,for the purpose of com- 
 pleting the gift in favour of the volunteer (e) . 
 
 (C) Fraudulent Trusts. 
 
 Frauds may arise, either at the common law (/) or under 
 the provisions of some statute, — the statute being some- 
 times merely declaratory of the common law, and being 
 sometimes either additional thereto or altogether new: — 
 
 (a) By the 13 Eliz. c. 5, all (covinous) alienations of (a) 13 Eiiz 
 lands or goods, whereby creditors may (in respect of such ^^iec. 
 lands or goods) be in any wise delayed in (or defrauded 
 •of) their just rights, are declared (as against such credi- 
 tors) utterly void; and the void conveyance may b© either 
 voluntary or for value: — 
 
 (1) And, Firstly, as regards Voluntary Conveyances:^ — (i) ■Voluntary 
 The statute 13 Eliz. c. 5, does not declare voluntary con- '^°^^^J'^'^^- 
 veyanoes as such to be void, but only fraudulent voluntary 
 convej ances {g) ; but a voluntary conveyance which 
 tends either to defeat or to delay the creditors of the 
 settlor generally {h), or one particular creditor even (i), 
 is fraudulent within the statute. The mere fact of the Settlor being 
 settlor being indebted at the time of the voluntary con- indebted does 
 veyance, is not, however, sufficient of itself to invalidate ^validate con- 
 the conveyance, — unless the remedy of the then existing ■veyance,— 
 creditor or creditors is defeated or delayed by the then^xistmg 
 existence of the settlement (fc) ; and as regards creditors creditors are 
 subsequent to the date of the settlement, these can only 
 defeat the settlement {being voluntary), if they can show, 
 that their money has been, in fact, applied towards paying 
 the creditors who were in existence at the date of the 
 settlement: In which latter case, the subsequent creditors 
 will have a right to " stand in the shoes " of the previously 
 existing creditors (l); and any creditor of a deceased insol- 
 
 (e) Milroy v. Lord, 4 De G. F. & J. 264 ; Richarfy \. Belbridge, L. R. 
 18 Bq. 11. 
 
 (/) Tivyne's case, 3 Rep. 80 ; Edwards v. Harben, 2 T. E. 587. 
 
 (g) In re Lane Fox. 19U0, 2 Q. B. 608. 
 
 (/») Ideal Bedding Oo.'s case, 1907, 2 Oh. 157. 
 
 (i) Edmunds -7. Edmunds, 1904, P. 362. 
 
 \k) Spirelt v. Willows, 34 L. J. Ch. 367. 
 
 (1) Freeman v. Fope, L. R. 5 Ch. 638. 
 
'32 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 vent may in this way avoid the voluntary settlement, — 
 suing (in such a case) on behalf of himself and all the 
 other creditors of the deceased (m) ; and, in such a case, 
 the fraudulent donee appears to be liable as an executor 
 de son tort. 
 
 What amount 
 of iadetted- 
 ness will raise 
 presumption 
 of fraudulent 
 intent within 
 the meaning of 
 13 Eliz. c. 5. 
 
 Mere indebtedness not sufficing to raise the presump- 
 tion of a fraudulent intent, — it must be shown, that " the 
 settlor was at the time so largely indebted, as to induce the 
 Court to believe, that the intention of the settlement was 
 to defraud his creditors" (n). But a liahility which has 
 not yet ripened into a debt, may {being proximate) re- 
 quire to be provided for, if the settlement is to stand (o), 
 — Scil., where the liability arises out of some pre-existing 
 contract, but not where it arises out of a tort (p). Also, if 
 the liability is prospective, in the sense that the debtor 
 is contemplating some new venture in trade (which may 
 or may not issue successfully), that is a proximate lia- 
 bility which must be taken into- account (g). 
 
 (2) Con- 
 Teyanoes for 
 yalue. 
 
 Conveyance, 
 when fraudu- 
 lent and 
 when not. 
 
 (2) Secondly, as regards Conveyances for Value: — 
 These may be either (1) Mortgages, or (2) Sales. And, 
 firstly, as regards Mortgages, — These may be either of 
 the whole (or substantially of the whole) property of the 
 debtor, or of part only of the property; and they may be 
 in consideration either of a past advance (with or without 
 some further present advance), or wholly in consideration 
 of a present advance. And it appears, that where the 
 debtor assigns the whole of his property by way of 
 security for a past debt only, it is an act of bankruptcy, 
 whatever the motives of the parties may have been (r) ; 
 but if (in such a case) there is also a present advance, or if 
 the assignment is wholly by way of security for a present 
 advance, it is then a question of the intention of the 
 parties (s), — which may be bond fide enough. And, 
 
 (m) Richardson v. Smallwood, Jao. 552 ; Kingston Cotton Co. y. Mouat, 
 1899, 1 Ch. 831. 
 
 («) Bolmes v. Penneij, 3 K, & J. 90. 
 
 (o) Mdler v. Ridkr, 22 Ch. D. 74. 
 
 (p) Lewknor v. Freeman, 1 Eq. Ca. Abr. 149. 
 
 \q) Mackaii v. Douglas, L. E 14 Eq. 106. 
 
 (r) In re Juices, 1902, 2 K. B. 58. 
 
 («) Godfrey v. Poole, 13 App. Ca. 497, on p. 503. 
 
EXPRESS PRIVATE TRUSTS. 33 
 
 Secondly, as regards Sales, — When the conveyance is for 
 value AND is bond fide, the deed is not fraudulent, — Scil., 
 unless mala fides, on the parts of all the parties to it, be 
 shown (t). 
 
 If the person entitled under the settlement should, Subsequent 
 before the settlement is avoided, have conveyed away (or vahiepTo- °'^ 
 even charged) for a valuable consideration his estate or tected. 
 interest thereunder, then, to the extent of such conveyance 
 {or charge), the settlement will remain good(M); And, 
 apparently, a s-ettlement which is (in the first instance) 
 voluntary may, by matter ex post facto, become a settle- 
 ment for value, — equally as if it had been originally for 
 value (x) . 
 
 The trustee of the settlement (where he is an honest 
 trustee) is always entitled to be paid out of the settled 
 property his costs (and charges properly incurred) of de- 
 fending the action to upset it (y), — Because, of course, 
 the settlement (as between the parties to it) is and re- 
 mains valid, subject only to the debts being paid (2); but 
 if the Court should have decided against the validity of 
 the settlement, and the trustee appeals, he does so at his 
 own risk (a) . 
 
 (b) By the 27 Eliz. c. 4, — which statute has now been (b) 27Eiiz. 
 (in effect) repealed, — every, conveyance of (or charge ^^^ *" 
 upon) lands, with the intent to defraud such persons, &c., 
 as should afterwards purchase the lands, was to be 
 deemed (as against such purchasers) to be wholly void, 
 frustrate, and of none effect. And upon the words of this 
 statute, it was held, that a voluntary settlement of lands Voluntary 
 (whether freehold, copyhold, or leasehold) was void as fo^™y°toid 
 against a subsequent purchaser of the lands for Value, against sub- 
 even although such purchaser had purchased with full p^J^ctaaer 
 notice of the voluntary settlement (6); and the very exe- 
 
 {t) Gale V. Williamson, 8 Mee. & W. 405 ; Kevan v. Crawford, 6 Cb. D. 
 29 ; and Golden v. Gillam, 20 Cb. Div. 389. 
 (m) In re Vamiitart, 1893, 2 Q. B. 377. 
 {x) Prodgers v. LangTiam. Sid. 133. 
 [y) In re Bolden, 20 Q. B. D. 43. 
 (z) Curtis V. Price, 12 Ves. 89. 
 
 (a) Ex parte Russell, In re Butterworth, 19 Cb. D. 588. 
 (4) Boe V. Manning, 9 East, 59. 
 
 S. D 
 
84 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Chattels 
 personal were 
 not within the 
 statute. 
 
 cution of the. subsequent conveyance sufficiently evinced 
 (it was said) the fraudulent intent of the former ,one. 
 And yet the settlement was good enough as against the 
 grantor himself (c), — who, therefore, could not (d), — al- 
 though the purchaser from him might (e), — have com- 
 pelled specific performance. 
 
 Chattels personal, however, were not within the statute; 
 and a voluntary settlement of chattels personal was, 
 therefore, not defeated by their subsequent sale (/); and 
 as regards leasehold properties, if these were subject to 
 a rack rent and to onerous covenants, and the volunteer 
 undertook the liability for these, the settlement was not 
 fraudulent within the statute (g) . 
 
 Purchaser,- 
 who? 
 
 Suhsequent 
 purchase must 
 have been 
 from the very 
 settlor himself, 
 and express 
 or direct. 
 
 A mortgagee (h), and likewise a lessee, were esteemed 
 purchasers pro tanto within the meaning of the statute; 
 but a judgment creditor was not so (^): And when it was 
 said, that a mortgagee or lessee was a purchaser pro tanto, 
 it was meant and intended, that the mortgage or lease pre- 
 vailed over the voluntary settlement, to the extent re- 
 quired to give full effect to the mortgage or lease; and 
 (subject to such mortgage or lease) the voluntary settle- 
 ment remained, of course, good. 
 
 But a bond fide purchaser for value from the heir-at- 
 law (or from the devisee of the voluntary settlor) was not 
 within the statute; nor was a bond fide purchaser for 
 value from one claiming under a second voluntary con- 
 veyance (fc), — Scil., because the intermediary vendor in 
 all these cases was but a volunteer himself, — and, there- 
 fore, could not (by selling) convey a better or higher 
 estate than he himself had. Also, the person who claimed 
 by virtue of the statute to set aside a prior voluntary 
 settlement, must have claimed under and through the 
 
 (c) Ayerst v. Jenkins, L. B.. 16 Eq. 275. 
 
 (d) Smith V. Garland, 2 Mer. 123. 
 
 le) Baking v. Whimper, 26 Beav. 568 ; Ptilvertoft v, Pulvertoft, 18 
 Ves. 84. 
 
 (/) M'Dmnett v. Sesilrige, 16 Beav. 346. 
 
 ((7) Price v. Jenkins, 5 Ch. Div. 919 ; Harris v. Tuib, 42 Ch. Div. 79. 
 
 {h) Cracknallv. Janson, 11 Ch. Div. 1. 
 
 li) Beavan v. Barl of Oxford, 6 De G M. & a. 507. 
 
 Ik) Doe V. JRusham, 17 Q,. B. 723 ; Lewii v. Pees, 3 K. & J. 132. 
 
EXPRESS PRIVATE 'TRUSTS. 36 
 
 voluntary settlor himself, and through, or under no other 
 person whatsoever (Z); and such claim must have been 
 directly and proximately through or under the settlor, 
 and not indirectly or by inference of law or rule of 
 equity (m) . 
 
 Where the voluntary settlement was set aside in favour Volunteers,— 
 of a subsequent purchaser, the volunteers had no right the'p^hase- 
 to the specific purchase-money (w) ; but if the settlement money, 
 had contained a covenant for quiet enjoyment, the settlor 
 would have been liable thereon for damages, amounting to 
 (in effect) the specific purchase-money (o) : Therefore, to 
 the extent of any subsequent mortgage of the property 
 effected by the voluntary settlor, he (and after his death 
 his estate) would have been liable on the settlor's cove- 
 nant for quiet enjoyment {p), — and also, semble, on his 
 covenant for further assurance (g) : Also, if the persons Volunteers,— 
 entitled under the voluntary settlement should, before any ^^^ power to 
 subsequent sale or mortgiage of the property by the settlor, charge, 
 have conveyed away (or charged) for a valuable considera- 
 tion, their estate or interest under the settlement, then {to 
 the extent of such conveyance or charge) the settlement 
 remained good (r) ; and the settlement might also (by 
 reason of matters ex post facto) have become a settlement 
 for value (s) . 
 
 But all these decisions upon the 27 Eliz. c. 4, have been Voluntary 
 now deprived (in large measure) of their importance, it ^™^fg9^^^ 
 having been enacted, by the Voluntary Conveyances Act, effect of. ' 
 1893 (<), that (save as regards subsequent purchasers, 
 mortgagees, and lessees who have become such before the 
 29th June, 1893) no voluntary conveyance, which shall 
 have been in fact made without any actual fraudulent 
 intent, shall be deemed fraudulent and void within the 
 moaning of the 27 Eliz. o. 4, — So that, now, a voluntary 
 
 (I) Godfrey v. Poole, 13 App. Ca. 497. 
 
 \m) In re Walhampton Estate, 26 Ch. Div. 391. 
 
 (») Daking v. Whimper, 26 Beav. 568. 
 
 (o) Dolphin v. Aylward, L. R. 4 H. L. 486. 
 
 (;;) HaUs v. Cox, 32 Beav. 118. 
 
 (V) Mallott V. Wilson, 1903, 2 Ch. 491. 
 
 ()-) In re Carter and Kenderdine, 1897, 1 Ch. 776. 
 
 (s) George v. Mllbanhe, 9 Ves. 890. 
 
 (t) 56 & 57 Vict. c. 21. 
 
 d2 
 
36 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Considerations 
 are either, — 
 
 (1) Merito- 
 rious; 
 
 Or 
 
 (2) Valuable. 
 
 Marriage 
 consideration 
 under 27 Eliz. 
 0.4. 
 
 Post-nuptial 
 settlement in 
 pursuance of 
 ante-nuptial 
 parol agree- 
 ment. 
 
 post-nuptial 
 settlement 
 supported on 
 slight con- 
 sideration. 
 
 settlement of ireaZ estate is as favourably situated as a 
 voluntary settlement of pure personal estate. 
 
 And it may be conveniently noted here, that lawful 
 considerations are either (1) Meritorious considerations 
 (sometimes called good considerations), — being considera- 
 tions of blood and natural affection, or of generosity and 
 moral duty; or (2) Valuable considerations, — such as 
 money, marriage, or the like, vsrhioh the law esteems an 
 equivalent for money. And, as regards the considera- 
 tion of marriage, that has always been recognised as a 
 valuable one; and previously to the Statute of Frauds, 
 a mere oral promise by the intended husband, to settle 
 property upon the intended wife, was upheld by the sub- 
 sequent marriage; and the Statute of Frauds (29 Car. II. 
 0. 3), s. 4, did not alter that principle, but only required 
 {by way of eviderice) that the ants-nuptial agreement 
 should be in writing. In the case, therefore, of an ante- 
 nuptial written agreement followed by marriage, the wife 
 is esteemed a purchaser for value (m) ; and an ante-nuptial 
 parol agreement, subsequently embodied in and evidenoad 
 by a post-nuptial settlement made in pursuance of that 
 agreement, and in which the ante-nuptial agreement is 
 specifically recited, appears also to hold good as a pur- 
 chase for value (x), — it being sufficient, if the written 
 evidence is forthcoming before action brought (y), — Scil., 
 where there is no actual intention of fraud (z) . 
 
 Even before the Voluntary Conveyances Act, 1893, a 
 Court of Equity supported post-nuptial settlements on 
 very slight valuable consideration. For example, a small 
 advance of money by some third party, as an inducement 
 to the husband to settle his freeholds on his wife and 
 children, -was deemed sufficient (a) . Also, in Hewiscm 
 V. Negus (b), it was decided, that, if the wife's real estate 
 (of which her husband would be entitled for his life to 
 receive the rents and profits) was settled by post-nuptial 
 
 (m) Kir/c V. Clark, Prec. in Oh. 275. 
 
 (x) DundusY. Diitcns, 2 Cox, 235; Montacute v. Maxwell, 1 P. Wms 
 617. 
 
 (2/) Bailey t. Sweeting, 9 C. B. N. S. 843. 
 
 (z) Gregg v. Holland, 1902, 2 Ch. 360. 
 ■ {a) Bayspoole v. Collins, L, R. 6 Ch. App. 228. 
 
 (4) 16'Beav. 564. 
 
EXPRESS PRIVATE TRUSTS. 37 
 
 settlement on the wife for life (for her separate use), 
 with remainder to the children, the post-nuptial settle- 
 ment was not void (under the statute 27 Eliz. o. 4) as 
 against a subsequent purchaser from the husband and 
 wife, — Scil., because the husband had (in effect) purchased 
 for his children by giving up his own life estate; and 
 in Teasdale v. Braithwaite (c), the like decision under 
 the like circumstances was given against a subsequent 
 mortgagee of the husband and wife. On the other hand, 
 in Shurmur v. Sedgewick (d), where the property (free- 
 hold and leasehold) was already the separate estate of 
 the wife, — So that the husband had nothing in it to give 
 up, — ^the post-nuptial settlement was declared to be wholly 
 void as against a subsequent mortgagee of the husT^and 
 and wife. 
 
 But, nota bene, where there is actual fraud, even an MaUfde-piai- 
 ante-nuptial voluntary settlement, for which the marriage m^nt'notf**^*" 
 is the sole consideration on the part of the wife, will supported, 
 not bo supported as against a subsequent purchaser or 
 mortgagee, if the marriage (although technically legal) 
 is altogether illusory as a consideration. For example, 
 in Columbine v. Penhall (e), where a gentleman went 
 through the ceremony of marriage with a female who 
 had previously lived with him in concubinage for a period 
 of years; and he settled considerable property upon her, 
 prior to and in purported consideration of the marriage, 
 — The Court, being of opinion that the marriage was 
 illusory as a consideration, and that the female knew it, 
 set aside the settlement as fraudulent against the sub- 
 sequent purchaser; and in Buhner v. Hunter (f), where 
 the circumstances were similar, the purported ante-nuptial 
 settlement was set aside under the 13 Eliz. o. 5, as a 
 fraud on the creditors. But if the female had been in- 
 nocent of any fraudulent intent, her interests under the 
 settlement would have remained good (^r) . 
 
 Upon the question. How far the iharriage consideration "who are 
 extends: — It appears, that a limitation to the issue of within the 
 
 ^ ^ scope of the 
 marriage con- 
 sideration. 
 
 (c) 5 Ch. Div. 630. 
 
 (d) 24 Ch. Div. 697. 
 («) 1 Sm. & Giff. 228. 
 (/) L. E. 8 Eq. 46. 
 
 iff) Campion v. Cotton, 17 Ves. 264 ; Kevan v. Crawford, 6 Ch. D. 29. 
 
38 THE ORIGINALLY EXCLUSIVE JORISDICTION. 
 
 the settlor by a prospective second marriage is not de- 
 feasible as voluntary, where the other limitations (which 
 in themselves are for value) would also be defeated if 
 such first-mentioned limitation were defeated (/i); and 
 (for the like special reason) a settlement on her marriage, 
 made by a woman of her own property as a provision for 
 her illegitimate children, has been upheld as against a 
 subsequent mortgagee («), — as also a settlement made by 
 her in favour of her lawful children by a former mar- 
 riage {k) ; but (save for such special reason as aforesaid) 
 it rather appears, that all these limitations would be 
 merely voluntary (Z). Apparently also, the like settle- 
 ment by a widower, in favour of his children by a former 
 marriage is merely voluntary (m) ; and a limitation to 
 the brothers of the settlor (or to more distant collaterals) 
 is voluntary {n), — they not being purchasers in any 
 sense (o) ; but limitations in favour of collaterals will be 
 supported, if there is any party to the settlement who 
 bond fide purchases on their behalf {p). Also, in the case 
 of " family arrangements," all the persons within the 
 scope of them are deemed purchasers for value (g) ; and 
 mere " forbearance " will sometimes make you a purchaser 
 for value (r) . 
 
 (0) The Bills (c) By the Bills of Sale Acts, 1878 and 1882 (s), a 
 I8'^*^4i*&'4'2 ^®^y factitious species of fraud has been introduced, — 
 Vict! c. 31, and for the protection primarily of the general creditors of 
 Vict'o^^— ^^^ grantor, and secondarily (since 1882) for the protec- 
 frauds under, tion of the grantor himself ; but as the provisions of thesei 
 Acts are epitomised in Chapter xviii. infra, it is suffi- 
 cient here to mention, that the Act of 1878 (like the 
 Bills of Sale Aots of 1854 and 1866, which it repealed) 
 expressly exempts marriage settlements from its opera- 
 tion, — an exemption which extends, however, only to ante- 
 
 (;») Be Mestre v. West, 1891, A. C. 264. 
 
 («) Clark V. Wriffht, 6 H.-& N. 849. 
 
 (k) Newsiead v. Smrles, 1 Atk. 26.5. 
 
 {I) Aft.-Gen. v. Jacobs Smith, 1895, 2 Q. B. 341. 
 
 (ffl) In re Cameron and Wells, 37 Ch. Div. 32. 
 
 («) Staekpoole v. Stackpoole, 4 Dru. & Warr. 320. 
 
 (o) Johnson v. Legard, 3 Madd. 283. 
 
 {p) Bance v. Sarding, 20 Q. B. D. 732. 
 
 [q) Heap v. Tonge, 9 Hare, 90. 
 
 (r) Dicksee's ease, 1908, 2 E. B. 169 ; Wigan's case, 1909, 1 Ch. 291 
 
 (« 41 & 42 Vict. c. 31 ; 45 & 46 Vict. u. 43. 
 
EXPRESS PEIVATE TRUSTS. 89 
 
 nuptial (and not also to post-nuptial) settlements (t) or 
 agreements for settlements (m) : And in connection with 
 all these last-mentioned settlements and agreements for a 
 settlement^ it is to he observed, as regards the 20th section 
 of the Act of 1878, whereby the chattels comprised in 
 any bill of sale, which has been (and which continues to 
 he) duly registered, ara (by force of the registration) taken 
 out of the possession, order, and disposition of the grantor 
 of thebill within the meaning of the Bankruptcy Act (x), 
 — that although that section has been repealed by the 
 15th section of the Act of 1882 as regards bills of sale 
 given by way of security for money lent, still the section 
 remains in full force as regards absahite assignments (in- 
 cluding post-nuptial settlements and agreements for a 
 settlement (y)), — not being settlements of or comprising 
 the goods of a trader (z) . 
 
 (d) By the Bankruptcy Act, 1883 (a), s. 47 (repealing (d) The Bank- 
 but re-enacting, and extending to non-traders as well as 1833''^ ■^7*'_ 
 to traders, a similar provision contained in the Bank- frauds under, 
 ruptcy Act, 1869 (b), s. 91), — The following provisions 
 have been made, but with reference only to voluntary (i) Voluntary 
 settlements, and not so as to affect settlements for value settlements, 
 (being either marriage or other commercial value (c)), that 
 is to say: — 
 
 Firstly, with reference to the husband's property in his 
 own right — 
 
 (1) Any settlement made within two years of the sub- W 9,*^"^" 
 sequent bankruptcy of the settlor is, ipso facto, void upon property, 
 the bankruptcy (Sdl., as against the trustee in the bank- 
 ruptcy (d)); and 
 
 (2) Any settlement made within ten years of the sub- 
 sequent bankruptcy of the settlor, and outside the first 
 two of such ten years, is also void upon the bankruptcy 
 (Scil., as against the trustee in the bankruptcy), — unless 
 
 {t) Ashlon V. Blaekshaw, L. E. 9 Eq. 510. 
 
 («) Wenman v. Lyon, 1891, 2 Q. B. 192. 
 
 {x) Bankruptcy Act, 1883, s. 44. 
 
 {y) Swift V. Pannell, 24 Ch. Div. 210. 
 
 (z) In re Ginger, 1897, 2 Q. B. 461. 
 
 (a) 46 & 47 Vict. c. 52. 
 
 (A) 32 & 33 Vict. c. 71. 
 
 (c) In re Parry, 1904, 1 K. B. 129. 
 
 [d) In re Tankard, 1899, 2 Q. B. 57. 
 
THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (b) Of wife's 
 property. 
 
 and until (in this latter case) the cestuis que trustent 
 under the settlement prove, that the same was not in fact 
 fraudulent as against the creditors of the settlor, and 
 prove also that the interest of the settlor in the property 
 passed to the trustees of the" settlement on the execution 
 thereof. And it has been held, on the construction of 
 these provisions, that the settlement is not void until there 
 is a trustee in the bankruptcy, — So that any bond fide 
 alienation in the meantime, whether by way of sale (e) 
 or by way of mortgage (/), of the property comprised in 
 the settlement, is and remains good. Also, if the settlor, 
 instead of conveying the property to trustees, declares 
 himself a trustee of it, that is enough, to make the pro- 
 perty pass {g) . 
 
 Secondly, with reference to the husband's property in 
 right of his wife, — Any settlement on the wife and 
 children of the settlor is good (no matter how soon the 
 bankruptcy of the settlor may thereafter come about), 
 provided it be of property that has accrued to the settlor 
 through his wife during the coverture {h) . Also, in all 
 cases, the property or money of the wife, received by 
 the husband and afterwards settled by him, is deemed 
 to have been settled by her (and not by him (i)). 
 
 Valid settle- 
 ment, — Limi- 
 tation in, 
 antU settlor's 
 bankruptcy or 
 assignment, — 
 validity or 
 invalidity of 
 and opera- 
 tion of. 
 
 And it may be conveniently noted here, that where 
 (by a valid settlement) the property of the husband is 
 limited to him for his life, or until his banlcruptcy or 
 assignment (voluntary or involuntary), with remainder 
 over, the limitation until bankruptcy is void (fc), but the 
 limitation until assignment (whether voluntary (I) or in- 
 voluntary (m)) is good, — So that, if there is a bankruptcy 
 simply, the trustee in the bankruptcy will take the life 
 estate: But if there is (first) an assignment and then 
 (afterwards) a bankruptcy, the gift over in remainder 
 has meanwhile taken effect on (and by reason of) the 
 
 (e) In re Garter and Kenderdine. 1897, 1 Ch. 776. 
 
 (/) Sanguinetti v. Sltickey's Bank, 1895, 1 Ch. 176. 
 
 Iff) Shrager v. March, 1908, A. C. 402. 
 
 (h) Mackintosh v. Pogose, 1895, 1 Oh. 505. 
 
 (i) Whitmore v. Mason, 2 J. & H. 204 ; Mackintosh v. Pogose, supra. 
 
 (k) Wilson V. Greenwood, 1 Sw. 471. 
 
 U) Higinbotham v. Holme, 19 Ves. 88 ; Brooke v. Pearson, 27 Beav. 185. 
 
 (»») Detmold v. Betmold, 40 Ch. D. 585. 
 
EXPRESS PRIVATE TRUSTS. 41 
 
 assignment, and there is in that case nothing for the 
 trustee in the bankruptcy to take(w): And where there 
 has been (first) a bankruptcy, and the creditors in that 
 bankruptcy have been paid (under some arrangement or 
 provision made for them), — and then (afterwards) there 
 is a second bankruptcy, the chances greatly are, that (in 
 that case abo) there will be nothing for the trustee in the 
 second bankruptcy to take (o) . 
 
 With reference to covenants' and contracts by any (la) Covenants 
 one (trader or not) to settle property of his own yet to ^-o settle. 
 be acquired, — All such covenants are void upon the sub- 
 sequent bankruptcy of the covenantor, — Unless (prior to 
 such bankruptcy) the property comprised in the covenant 
 has been both acquired, and also settled, pursuant to the 
 covenant (p) ; but where the after-acquired property is 
 furniture or the like, it is well transferred {i.e., settled) 
 by delivery (g), — and the settlement is thereupon a com- 
 plete ante-nuptial settlement (r). These covenants to 
 settle, it is here to be observed, may be contained either 
 in post-nuptial or in ante-nuptial settlements; and, firstly, 
 when they are contained in voluntary post-nuptial settle- 
 ments, even the children of the marriage cannot enforce 
 them(s), — and still less the remote beneficiaries {t); but, 
 secondly, when they are contained in ante-nuptial settle- 
 ments, the children (issue of the marriage) are deemed 
 covenantees, and so are entitled to (but strangers cannot) 
 enforce the covenants to settle (m). And, nota bene, where 
 the covenant to settle is to settle after-acquired property, 
 no mere declaration of trust until the settlement will avail, 
 — such declaration being merely incidental to the cove- 
 nant, and falling with the covenant (aj). 
 
 By the Bankruptcy Act, 1883, s. 48, every conveyance (2) Fraudu- 
 of property (or charge thereon) made . by any per- lent prefer- 
 
 SUCBSj OcC- 
 
 (m) Sammonds \. Barrett, 21 L. T. N. S. 321. 
 
 (o) In re Johmon Johnson, 1904, 1 K. B. 134. 
 
 {p) In re Beis, Ex parte Chugh, 1905, A. C. 442. 
 
 (j) In re Magnus, Ex parte Salaman, 1910, 2 K. B. 1049. 
 
 (r) W. V. L., 1891, 2 Q. B. 192. 
 
 («) Green v. Paterson, 32 Ch. D. 99. 
 
 (0 Jouce V. Satton, 11 Ir. Ch. Eep. 123. 
 
 (u) mil V. Gomme, 5 Mj. & Cr. 250 ; Gandg v. Gandg, 30 Ch. Div. 57. 
 
 (x) Chetwynd v. Morgan, 31 Ch. Div. 596. 
 
42 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 son unable to pay his debts as they bedome due from 
 his own money, in favour of any creditor, with the view 
 of giving such creditor a preference over the other credi- 
 tors, becomes void as a fraudulent preference, if fche person 
 making . . . the same is adjudged bankrupt on a bank- 
 ruptcy petition presented within three months after the 
 date of making . . . the conveyance or charge. But 
 these fraudulent preferences may, semble, be effectively- 
 made by a very easy evasion of the Bankruptcy Act, — it 
 being sufficient (e.g.) to intend to prefer A. the surety, 
 while in fact you prefer B. the creditor, or vice versa («/); 
 but the Court will be astute, of course, to prevent any 
 such evasion (2). 
 
 (3) Acts of By the Bankruptcy Act (1883), s. 4, the three follow- 
 
 ^ ^' ing conveyances by a debtor are also to be deemed fraudu- 
 lent, — and even to be acts of bankruptcy, — that is to 
 say: — (1) A conveyance or assignment of his (the 
 debtor's) property, to a trustee or trustees for the benefit 
 of his creditors generally; 
 
 (2) A fraudulent conveyance, gift, delivery, or transfer 
 of his property (or of any part thereof) ; and 
 
 (3) Any conveyance, transfer, or charge which would 
 (in any way) be void as a fraudulent preference, if thei 
 debtor was adjudged bankrupt; But 
 
 (4) Protected (4) By s. 49 (being the section as to "protected trans- 
 transactions. actions "), payments by the bankrupt to his creditors, 
 
 and conveyances by the bankrupt for value, which respec- 
 tively take place before the date of the receiving order, 
 are to remain good, if (but only if) the creditor or con- 
 veyee had not (at the date of the payment or conveyance) 
 notice of any available act of bankruptcy then already 
 committed by the bankrupt (a), — Because, generally, the 
 rules in bankruptcy, equally with the rules in use at the 
 common law and in equity, must be consistent with 
 common honesty, — and usually are so (b). 
 
 (y) Stenotyper case, 1901, 1 Ch.. 250. 
 («) In re Jackson and Bassfcyfd, 1906, 2 Ch. 467, 
 (a) In re DunUey, 1905, 2 K. B, 683. 
 
 (J) Ex parte James, L. R. 9 Ch. App. 609 ; In re Tyler, 1907, 1 K. B. 
 866. 
 
EXPRESS PRIVATE TRUSTS. 43 
 
 (D) Trusts in Favour of Creditors. 
 
 Although, a complete conveyance upon trust (or a (-D) Trusts in 
 simple declaration of trust) in favour of volunteers is ^gauors. 
 (as we have seen) irrevocable, — Scil., unless where an ex- 
 press power of revocation is contained in it; yet where a 
 debtor makes a complete transfer of his property (by 
 deed) to a trustee, upon trust for the payment of his 
 creditors, that amounts, in general, merely to a direction 
 to the trustee as to the mode in which, for the benefit of 
 the debtor, he (the trustee) shall apply the property, — So 
 that the debtor may afterwards vary or revoke the trust 
 at his pleasure. Therefore, in one case, where there had Eevocabie 
 been an assignment of property to trustees for the pay- IJl thTdebtor 
 ment of certain scheduled creditors, the Court said, that 
 the real nature of the deed was an arrangement made by 
 the debtor (for the payment of his debts) in an order 
 prescribed by himself, and over which he retained the 
 control (c); and, in another case (d), the Court said: — " If 
 a debtor conveys property in trust for the benefit of his 
 creditors, and the creditors are not in any manner privy 
 to the conveyance, the deed merely operates as a power 
 to the trustees, which is revocable by the debtor, — equally 
 as if the debtor had delivered money to an agent to pay 
 his creditors with, and (before any payment) had recalled 
 the money." 
 
 But where the so-called trust for creditors is not to The right to 
 arise until after the death of the settlor, it is not com- ptrsonaTto 
 petent for any beneficiary or cestui que trust entitled settlor, 
 under the will of the settlor to exercise the right of re- 
 vocation (e), — Sdl., because such beneficiary or cestui que 
 trust (being himself merely a Volunteer) takes subject 
 to the provision made by the settlor for the payment of 
 his debts, — and that, whether the debts are specified in a 
 schedule to the deed (/) or are not so specified {g) . Also, 
 such a deed may, even in the settlor's lifetime, be from 
 
 {c) Oarrardv. LatiderdaU, 3 Sim. 1. 
 id) Acton V. Woodgate, 2 My. & K. 495. 
 («) Fitzgerald \. White, 37 Ch. Div. 18. 
 (/) Synnot v. Simpson, 5 H. L. Ca. 121. 
 (y) Priestley v. Ellis, 1897, 1 Ch. 489. 
 
44 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Effect of com- 
 munication of 
 deed to credi- 
 tors, followed 
 by forbearance 
 on the faith of 
 the deed. 
 
 Effect of the 
 creditor being 
 a party to the 
 deed. 
 
 Surplus 
 
 assets, — 
 title to. 
 
 Effect of 
 claiming 
 adversely to 
 the deed. 
 
 Stock 
 Exchange 
 assignments,- 
 effect of. 
 
 the first irrevocable, — constituting from the first (as be- 
 tween the settlor and the creditors), the true relation of 
 trustee and c'estuis que trustent (h) . Also, if the deed in 
 favour of the creditors has been communicated to them, 
 AND they have been " induced thereby to a forbearance in 
 respect of their claims," — i.e., "have assented to {and 
 acquiesced in) the deed" (^), — The deed becomes irrevo- 
 cable. Also, if the creditor is a party to the deed, and 
 executes it, the deed {as to that creditor) is irrevo- 
 cable {k) ; and, usually, the creditors may execute the deed 
 (or may accede to it) even after the time in that behalf 
 specified in the deed has expired, — the time so specified 
 not being deemed of the essence {l). 
 
 As regards the surplus assets (if any) which may re- 
 main after satisfying the primary purposes of the deed, 
 these will, in general, result to the settlor (the debtor), — 
 or (if he be dead) to his legal representative, — or (if the 
 deed should have so provided) to the cestui que trust next 
 entitled under the deed {m) ; but if the deed shouldj in 
 any particular case, be (as it may be) an absolute dis- 
 position of the assets in favour of the creditors, there 
 would, of course, be no surplus assets at all, — nor any 
 resulting trust (w), — in such a case. 
 
 And regarding these trust deeds for creditors, these 
 three further points require to be here noticed, namely: — 
 
 Firstly, a creditor who for a long time delays to exe- 
 cute the deed (o), or who sets up a title adverse to it {p), 
 will not be allowed to claim the benefit of it, nor may the 
 deed (if bond fide) be challenged by him {q), — save in 
 the event of the bankruptcy of the debtor {r) . 
 
 Secondly, an assignment (in the case of a Stock 
 Exchange debtor) to the Stock Exchange official assignee, 
 
 (A) Sharp v. Jackson, 1899, A. C. 419. 
 
 (j) Acton v. Woodgate, supra ; Biron v. Mount, 24 Beav. 64S. 
 
 (k) Mackinnon v. Stewart, 1 Sim. N. S. 88. 
 
 {V) Whitmore v. Turqttand, 3 De G. F. & J. 107. 
 
 (m) Salt V. Northampton, 1892, A. 0. 1. 
 
 (») Oooke\. Smith, 1891, App. Ca. 297. 
 
 (o) Gould V. Robertson, 4 De G. & Sm. 509. 
 
 [p] Meredith v. Facey, 29 Oh. Div. 745. 
 
 \q) Maskelyne and Cook^s case, 1903, 1 E. B. 671. 
 
 (r) In re Mills, 1906, 1 K. B. 389. 
 
EXPRESS PRIVATE TRUSTS. 45 
 
 — which assignment is for the benefit exclusively of the 
 Stock Exchange creditors, — is and remains valid, as 
 against the creditors generally of the debtor (s), — unless 
 and until (the debtor being made a bankrupt) it is set 
 aside as a fraudulent preference of the particular class 
 of creditors (i) . 
 
 And, Thirdly, all these trust deeds in favour of creditors Trust deeds 
 are (in effect) " Deeds of Arrangement," — and (as such) areTto three" 
 are acts of bankruptcy on the part of settlors, — So that the months after 
 trust deed is (and for three months after its date con- t^iedateof 
 
 GX6CU.L10U D"V" 
 
 tinues to be) available as an act of bankruptcy on which the debtor) 
 any creditor may make the settlor a bankrupt, — Ex- ymworkable 
 cepting that none of the creditors who have assented to the 
 deed (or who have executed it), could make the settlor a 
 bankrupt on that ground alone (m). Also, no payment 
 can be safely made to the trustee of such a deed, — 
 during the period of three months during tvhich it is and 
 continues to be an available act of bankruptcy (x) : 
 Furthermore, these trust deeds, being " Deeds of Arrange- Trust deeds 
 ment," must (like bills of sale are registered) be registered forpreditprs,— 
 within seven days of their first execution, — or else they 
 are void («/') ; and if and so far as they comprise lands of 
 any tenure, they must be registered also in the Land 
 Registry Office, in the proper register for such deeds (z), 
 — or else they will be void as against a subsequent pur- 
 chaser or mortgagee or lessee of the debtor. But as re- 
 gards such deeds when executed by a foreigner domi- 
 ciled abroad, they are not (except, of course, as regards 
 lands in England) within the purview of the Acts re- 
 quiring registration (a) ; and a deed which is for the bene- 
 fit of specified creditors only (and not for the creditors 
 generally) is not, strictly speaking, a " Deed of Arrange- 
 ment " at all, — and so requires no registration as such (&), 
 — save, possibly, as regards lands in England. 
 
 («) Zomas V. Graves # Co., 1904. 2 K. B. 557. 
 (t) TomMns t. Saffery, 3 App. Ca. 213. 
 («) It) re Brindley, 1906, 1 K. B. 377. ■ 
 
 [x) Davis V. Fctrie. 1906, 2 K. B. 786 ; JPonsford v. ITnim Bank, 190;i 
 2 Cb. 444. 
 
 (y) SO & .'jl Vict. 0. 57. 
 
 (z) 51 & 52 Vict. 0. 51. 
 
 \a) Bulaney v. Merrii, 1901, 1 K. B. 536. 
 
 (A) In re Saumarez, 1907, 2 K. B. 170. 
 
46 THE ORIGINALLY EXCLUSIVE JDEISDICTION . 
 
 (jB) Equitable Assignments. 
 
 {B) Equitable gy ^-j^g qJjJ common law, no chose in action could be 
 General rule granted Or assigned; but in equity, — where the assignment 
 
 of the old ^y^g JQj. yai-uQ — all choses in action were assignable, ex- 
 common law. ' . II- • 11 1 ,1 • . 
 Respects in pectancies also being assignable where the assignment was 
 
 which equity for value (c), as, for example, the mere expectancy of an 
 a^'nae'lf'the lieir-at-law of succeeding to the estate of his aacestor {d); 
 old common Or the interest which a person might take under the will 
 '*''• of another who was living (e): or the future cargo of a 
 
 ship in mortgage (/), or the future stock-in-trade to be 
 brought on mortgaged premises {g), or the future book- 
 debts of a business Qi), — all of which were mere " naJced 
 possibilities" : And, after such an assignment for value, 
 — but not where the assignment is purely voluntary (i), 
 — when the expectancy falls into possession or otherwise 
 matures, the assignment will be enforced (k) . And even 
 a misfeasance claim against directors is assignable in 
 equity; and a chose in action, which (on the face of it) 
 is expressed "not to be assignable in any case whatever" 
 is (notwithstanding) assignable in equity, — ajs is also a 
 policy of life assurance (Z), — even a Friendly Society's 
 policy (m) : Also, a contract which is in its own nature 
 assignable is not the less so, merely because the word " as- 
 signs" is not mentioned in the writing whereby the con- 
 tract is evidenced (w) : And, on the other hand, a con- 
 tract is not assignable, which is merely personal to the 
 purporting assignor (o). 
 
 Trustee in The trustee in bankruptcy, being the general assignee 
 
 Ws«tie'a7'~ °^ ^^ ^^^ property of the bankrupt, takes whatever a 
 
 assignee, — 
 
 (<;) Comnhe v. Carter, 38 Ch. D. 348. 
 
 \d) Jlobsm T. Trevor, 2 P. W. 191. 
 
 (e) Bennett v. Cooper, 9 Beav. 262. 
 
 (/) Lindsay v. Giihs, 22 Beav. 522. 
 
 ig) Sallas v. Robinson, 15 Q. B. D. 288. 
 
 (h) Official Receiver v. Tailby, 13 App. Ca. 523. 
 
 (i) Towry-Law v. Burns, 1903, 1 Ch. 697. 
 
 (A) Eolroud V. Marshall, 10 H. L. Ca. 191. 
 
 \l) In re Turcun, 40 Ch. Div. 5. 
 
 (»») Griffin v. Griffin, 1902, 1 Ch. 135. 
 
 («) Tol'hurst's case, 1903, A. C. 414. 
 
 (o) Kemp's ease, 1906, 2 K. B. 604. 
 
EXPRESS PRIVATE TRUSTS. 
 
 47 
 
 particular assignee would tate, — So that {e.g.) the contin- (i) Vested 
 gent interests of the bankrupt vest in the bankruptcy trus- "^ 
 tee, equally as they would (but for the bankruptcy) have 
 vested in the bankrupt himself; and where a legacy was 
 given to an undischarged bankrupt conditionally on his 
 obtaining his discharge, and afterwards the bankrupt was (2) Condi- 
 discharged, the legacy (which had meanwhile vested con- tingent)right8. 
 tingently in the bankruptcy trustee) was held to have 
 vested absolutely in that trustee on the discharge in bank- 
 ruptcy being obtained {p) . 
 
 And where A. is carrying on a business, — in respect 
 of which he becomes from time to time entitled to periodi- 
 cally accruing fees or other profits as the " fruits " of 
 the business; and he assigns these future fees and pro- 
 fits (or "fruits ") to X. by way of mortgage; and then 
 A. goes bankrupt, and Z. is appointed the trustee in his 
 bankruptcy; and Z. elects to carry on the business, — AU 
 the fees and profits accruing from the business thereafter, 
 and as from the date of the trustee's intervention, are the 
 trustee's property, — That is to say, they never were or 
 became the bankrupt's property at all, — and therefore they 
 remain in Z., and do not vest in or pass to X., as mort- 
 gagee (g). 
 
 The old common law rule against the assignment of ReBpectsin 
 choses in action, was successively relaxed, — That is to say, ^^^on law 
 Firstly, negotiable instruments became, by the law mer- even has in- 
 chant, assignable; and, Secondly, wherever the debtor its own rule? 
 assented to the transfer of the debt, the assignee (suing 
 in the name of his assignor) was permitted (on the implied 
 promise which resulted from such assent) to sue the debtor 
 direct (r) : And other future interests were afterwards 
 made assignable by statute, — That is to say, by the 8 & 9 
 Vict. c. 106, s. 6, contingent and future interests (and 
 "possibilities coupled with an interest ") in real estate; 
 by the 30 & 31 Vict. c. 144, policies of life assurance; by 
 
 [p) Davidson v. Chalmers^ 33 Beav. 653. 
 
 (}) Wilmot V. Alton, 18a7, 1 Q. B. 17. 
 
 {r) De Pothonim- v. De Mattos, EU. Bl. & Ell. 467. 
 
48 
 
 THE ORIGINALLY EXCLUSIVE JUEISDICTION. 
 
 Order given by 
 debtor to his 
 creditor upon 
 a third person 
 a good equi- 
 table assign- 
 ment, i.e.f ap- 
 propriation. 
 
 the 31 & 32 Vict. c. 86 (now repealed and its provisions 
 in this respect re-enacted by the 6 Edw. VII. c. 41), 
 policies of marine assurance, — and (eventually) by the 
 36 & 37 Vict. c. 66, s. 25, sub-sect. 6, debts and other 
 legal choses in action generally (s), — Soil., "where the 
 assignment urn absolute, and not by way of charge 
 only" (i),—3. provision which is wide enough to extend 
 also to accident assurance policies (u), and even to the 
 compensation made payable by statute, for the tortious 
 damage which is thereby legalised {x) : and consols them- 
 selves even are only choses in action within the meaning 
 of all these rules (y) . But, as regards assignments which 
 depend upon the 36 & 37 Vict. c. 66, for their efficacy, the 
 assignment is required to be itself in writing, and to be 
 completed by a written notice of it to the debtor; and 
 such notice must be given by the assignee before he may 
 commence his action for the recovery of the debt (z) ; and 
 only the whole debt (and not a part of it) may be assigned 
 under the Act (a),Scil., legally and effectively: 
 
 There may also, in equity, be other valid assignments, 
 not complying with these provisions of the last-mentioned 
 Act; and (for example) an order given by a debtor to his 
 creditor on a third person who holds any funds of the 
 debtor, to pay the creditor out of such funds, has always 
 been considered as a binding equitable assignment, — or 
 (speaking more accurately) as a binding equitable appro- 
 priation, — of so much money to or in favour of the credi- 
 tor (6). And the title arising under such an equitable 
 appropriation or assignment (which, where the assign- 
 ment is by letter, is complete as from the date of posting 
 the letter) (c), holds good, as against the title of the 
 trustee under the subsequently accruing bankruptcy of the 
 
 ((f) JFalker v. Bradford Old Bank, 12 Q. B. D. 511. 
 
 («) JPmnp Souse Eotel case, 1902, 2 K. B. 190. 
 
 («) Stokell V. Beuwood, 1897. 1 Ch. 459. 
 
 {x) Dawson v. Citu Rail. Co., 1905, 1 K. B. 260. 
 
 (y) Wildman v. Wildman, 9 Ves. 174. 
 
 (z) Batemart v. Hunt, 1904, 2 K. B. 530. 
 
 \a) Forder v. Baker, 1910, 2 K. B. 636. 
 
 {*) Diplock V. Hammond, 5 De G. M. & G. 320. 
 
 (c) Alexander's case, 1903, 2 K. B. 208. 
 
EXPRESS PRIVATE TRUSTS. 49 
 
 assignor ((J!) ; and also aigainst the title of the executor' 
 or administrator of the assignor upon his death, — And 
 in the latter case (e), and also in the former case (/), 
 although the notice required to perfect the assignment 
 (as against third parties) may not have been given till 
 after the death or (as the case may be) the bankruptcy. 
 And the title under such an appropriation or assignment, 
 is good also against any execution (by garnishee order 
 or otherwise) levied by a judgment creditor of the 
 assignor (g) . 
 
 But a mere revocable mandate is not an equitable assign- Mandate from 
 ment or appropriation (h), — because it is a mere agency; agmit^cou- 
 and giving a man your cheque in payment, is not an ap- ieiano right 
 propriation (either legal or equitable (i)), — as neither, creditor. 
 semble, is the right which arises by subrogation (k) . 
 Also, there can be no effective appropriation, if no specific other cases 
 fund is specified out of which the payment is to be ™ wMcii 
 made (l). And, nota bene, any purported appropriation, is incomplete, 
 which amounts only to a mandate, will be revoked by the 
 bankruptcy of the debtor (w), — which a true equitable as- 
 signment or appropriation would not be (m) . But a man- 
 date (or power of attorney), which is incident to a 
 security, is irrevocable ?vhile and so long as the setcurity 
 Continues (o) . 
 
 In order that third parties may be bound by the equit- Notice to legal 
 able assignment or appropriation, it is necessary, accord- ^g^^ee^of 
 ing to the rule in Dearh v. Hall{p), for the assignee or chose in action, 
 appropriatee to do everything towards having possession perfect^tie" 
 which the subiect admits of; and for this purpose he must as against 
 
 '■ ^ third person. 
 
 (d) Burn v. Carmlho, 4 My. & Ct. 690. 
 
 («) Bateman t. Hunt, supra. 
 
 If) In re Wallu, 1902, 1 K. B. 719. 
 
 Ig) Yates v. Terry, 1902, 1 K. B. 527. 
 
 (h) Sodiek v. Gandell, 1 De G. M. & G-. 763. 
 
 (i) Sopkinson v. Forster, L. E. 19 Eq. 74. 
 
 (k) Nelson S; Sons v. Nelson Line, 1906, 2 K. B. 217. 
 
 [l) Fercivalv. Dunn, 29 Ch. Div. 128. 
 
 (m) Fx parte Sail, In re Whitting, 10 Ch. Div. 615. 
 
 {n) Dunlop Slubber case, 1905, A. C. 454. 
 
 (o) Frith T. Frith, 1906, A. C. 254. 
 
 {p) 3 KuBS. 1. 
 
 S. E 
 
so THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 give notice to the legal holder of the fund,— that is, to 
 the debtor himself or (as the case may be) to his legal per- 
 sonal representative (such representative being first duly- 
 constituted such (g)),— or, generally, to the person who 
 (and who alone) can lawfully receive (and also give the 
 due legal receipt for) the :debt (r) ; and that notice is parcel 
 of the right of action itself (s) . 
 
 Notice,— effect The notioo is (for many purposes) tantamount to pos- 
 of giving; session, — perfecting the title and giving (so to speak) a 
 complete right in rem, — So that, if the debtor or (as the 
 case may be) his legal personal representative or other 
 the legal hand aforesaid, should (after receiving notice of 
 the assignment) pay the original creditor the debt or any 
 part thereof, — or should even settle with him regarding 
 the debt or any part thereof (t), — he will be liable to 
 pay the amount over again to the assignee, — Excepting 
 that, if the debt is secured by a negotiable instrument, 
 and the payment is made to the holder of such instru- 
 ment, the party paying is thereby fully discharged (m) . 
 
 and effect of If the assignee is satisfied that the assignor will make 
 not giving 1 . j^Q improper use of the possession in which he is allowed 
 .to remain, notice of the assignment is not necessary, — 
 Scil., because (as against the assignor) the title is per- 
 fect without the notice; but if the assignor, taking fraudu- 
 lent advantage of the notice not having been given, should 
 subsequently assign to a second assignee, the first assignee 
 will be postponed to the second assignee, — excepting, pos- 
 sibly, where the trustee in the bankruptcy of the assignor 
 is the second assignee (a;); and that will be so, notwith- 
 standing the first assignee may have taken proceedings 
 in Court to realise his assignment (and may also have 
 registered his action as a lis pendens (y)), and may even 
 have obtained the appointment of a receiver in the 
 action (z), — Scil., Because all these proceedings are an 
 
 (q) In re Dallas, 1904, 2 Ch. 385. 
 (r) Stevhens v. Green, 1895, 2 Ch. 148. 
 (s) Kelly V. Selwyn, 1905, 2 Ch. 117. 
 (t) Stocks V. Dobson, 4 De G. M. & G. 11. 
 (u) Bence v. Shearmait, 1898, 2 Ch. 682. 
 
 (x) In re Wallis, 1902, 1 K. B. 719 ; In re Anderson, 1911, 1 K. B 896 
 (y) Wigram v. Buckley, 1894, 3 Ch. 483. 
 2) Rutter V. Everett, 1896, 2 Ch. 872. 
 
EXPRESS PRIVATE TRUSTS. 51 
 
 ineffectual substitute for "the notice" which the law 
 requires to be given (a); and the question always is, 
 simply, — Has "the notice" been given; and it is not a 
 question of laohes at all (6). 
 
 ' Where the assignee is unable to give the notice, if he Notice,— what 
 has otherwise done all in his power towards taking posses- casefof ' ^^ 
 sion, he will not lose his priority (c); and when (through difficulty, 
 infancy or .otherwise) he is unable to give the necessary 
 notice, his priority will, semhle, remain, — at least as 
 against the .trustee in bankruptcy of the assignor (d) . 
 But the notice, if given to the solicitor of the debtor, 
 is only sufficient, if it be communicated to his client (e) . 
 
 If the notice is duly given to all the trustees who are Notice to old 
 such at the date of the assignment (/), that is sufficient, — where^theyaii 
 as against any subsequent assignee, — notwithstanding that subsequently 
 (at the date of the subsequent assignment) the trustees "^'^ o"^ "'^ti'^^- 
 who received the notice are all dead, and the new trustees 
 who have been appointed in their places are wholly 
 ignorant of the notice '(gr), — Wherefore the first assignee 
 will (in such a case) retain his priority (h) ; nor will the 
 new trustees be deemed to have had constructive notice 
 of the jiotice given to the old trustees (^), — nor will they 
 become personally liable on that account to anyone (k) ; 
 but where the assignor himself is one of the old trustees, 
 the notice to him alone will not suffice for the protection 
 of the first assignee as against the second assignee (Z) . 
 
 The notice required to be given need not be (e.g.) the ^^"of" 
 formal notice prescribed (by the 30 & 31 Vict. c. 144) for 
 assignments of policies of life assurance, — except as 
 against the ^assurance office itself, — but may be any in- 
 
 (ffl) In re Fresh/eld's Ti-iist, 11 Ch. Div. 198. 
 
 (b) In re Lake, Ex parte Cavendish, 1903, 1 K. B. 151. 
 
 (c) Johnstone t. Cox, 19 Ch. Div. 17. 
 
 \d) In re Mills, 1895, 2 Ch. 564 ; In re WalUs, supra, 
 {e) Saffron Walden y. Rayner, 10 Ch. Div. 696. 
 (/) In re Phillip'' s Trusts, 1903, 1 Ch. 183. 
 {g) Brittvi v. Partridge, 1899, 1 Ch. 163. 
 (h) Ward\. Dtmeotnbe, 1893, A. C. 368. 
 (i) Sallows V. Lloyd, 39 Ch. Div. 686. 
 (k) Phipps V. Lovegrove, L. R. 16 Eq. 80. 
 ij) Browne v. Savage, i Drew. 635. 
 
 e2 
 
53 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 When notice 
 is not 
 requisite ; 
 
 or not avail- 
 able. 
 
 formal (buf otherwise sufficient) notice as between the 
 successive assignees (m) ; and even where the assignment 
 operates only under the 36 & 37 Vict. c. 66, s. 25, sub-s. 6, 
 the notice, although it must be in writing, is not other- 
 wise formal (w) . 
 
 This doctrine of notice is not applicable to shares in 
 companies registered under the Companies Act, 1908 (or 
 the prior Companies Acts (o)); nor to equitable interests 
 in land (p); nor to equitable leaseholds (or other chattel 
 interests) in real estate (g) ; but it is applicable to the 
 proceeds of the sale of real estate (j), and to leaseholds 
 which are subject to a trust for conversion (s), and to 
 moneys secured by debentures containing a charge on real 
 estate (if); and as regards rents, the doctrine is applic- 
 able to rents which have actually accrued due (m), but 
 not, ^emble, to accruing rents (x) . 
 
 When the chose in action is in Court, then (in lieu lof 
 giving notice of the assignment to the officer of the Court) 
 a stop order on the fund must be obtained, by or on behalf 
 of the (assignee; and such stop order will have all the effect 
 of notice (y), — provided it be obtained in the proper suit, 
 but not otherwise (z) ; and the sto_p order appears still 
 to be necessary, in the case of all assignments by deed 
 (or other act of the party), notwithstanding that it is 
 not now necessary in the case of a charging order (a) . 
 
 Assignee of 
 a chose in 
 action takes 
 sutjeot to the 
 
 equities. 
 
 The assignee (or equitable appropriatee) of a chose in 
 action takes, in general, subject to all the equities which 
 subsist against the assignor, — S-cil., being equities affect- 
 ing or attaching to the subject-matter, " and existing (or 
 
 (m) Newman v. Newman, 28 Ch. Div. 674. 
 
 («) Western Waggon Go. T. West, 1892, 1 Ch. 271. 
 
 (o) SocUU Ginerale v. Tramways Union, 11 App. Ca. 20. 
 
 ip) Sopkins V. Eenuworth, 1898, 2 Ch. 3i7. 
 
 (}) Wiltshire v. Rabbits, 14 Sim. 76. 
 
 (r) Lloyds Bank v. Pearson, 1901, 1 Ch. 865. 
 
 («) White V. Ellis, 1892, 1 Ch. 188. 
 
 (i!) Christie v. Taunton, ^c. Co., 1893, 2 Ch. 175. 
 
 («) Brook V. Badley, L. E. 4 Eq. 106, on p. HI. 
 
 m De Nicholls \. Saunders, L. E. 5 0. P. 689. 
 
 (y) Montefiore v. Guedalla, 1903, 2 Ch. 26. 
 
 («) Stephens v. Greeii, 1895, 2 Ch. 148. 
 
 («) Brereton v. Edwards, 21 Q. B. D. 488. 
 
EXPRESS PRIVATE TRUSTS. '53 
 
 arising out of drcmnstances existing) before the notice 
 given of the assignment" (&). For example, in Turton 
 V. Benson (c), ■where 9, son on his marriage was to have 
 from his mother (as a portion with his wife) exactly as 
 muoh as the intending father-in-law should allow to his 
 daughter; and privately and without notice to and in 
 fraud of his mother (who treated for the marriage), the 
 son gave a hond to the intended wife's father, to pay 
 back £1,000 of the wife's portion seven years after, in 
 consideration that the father-in-law should make the 
 wife's portion £3,000, instead of (as he had intended) 
 £2,000 only; and the father-in-law afterwards went bank- 
 rupt, and the bond vested in the trustee in the bankruptcy 
 for the benefit of the creditors of the bankrupt, — It was 
 held, that the bond, being void in equity in the hands of 
 the father-in-law (on account of the fraud), could not 
 be made better by the assignment to the bankruptcy trus- 
 tee. And in Knapman v. Wreford{d), where certain 
 legatees (who were also the testator's next of kin) com- 
 menced an action in the Probate Division against the exe- 
 cutor of the will, claiming a revocation of the probate; 
 and pending that action, they assigned (some of them by 
 way of sale outright, and the others of them by way of 
 mortgage) all their shares, whether as legatees or as next 
 of kin; and subsequently their action was dismissed with 
 costs to be paid to the executor-defendant, — The Court 
 held, that these costs were proper to be set off against the 
 amount of the legacies, and that the assignees also of the 
 legatees took their assignmemts subject to such set-off. 
 And the like decision was given in Christmas v. Jones (e) . 
 
 And here it is to be noted generally, that the assignee 
 (whether by way of purchase or of mortgage) of the 
 residue (or of any share of the residue) of a testator's 
 personal estate, takes subject to the payment thereout of 
 the legacies and of the general costs of an action for the 
 administration of the estate, — ^and subject also, of course, 
 to the payment of all the " testamentary expenses," and 
 
 (J) Doering v. Boering, 42 Ch. Biv. 203. 
 («) 1 P. Wms. 496. 
 (<f) 18 Cai. Div. 310. 
 (e) 1897, 2 Ch. 190. 
 
54 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Exceptions 
 to the 
 
 general rule : 
 (a) Bills 
 and notes. 
 
 (b) Deben- 
 tures payable 
 to bearer. 
 
 of the " debts,"— even of debts emerging late in the ad- 
 ministration of the assets (/),— Excepting that, if the 
 share has been carried over to a separate account, — ^or so 
 far as it has been so carried over,— the assignee will be 
 (in effect) relieved of these general costs {g). 
 
 Length of time will, however, discharge these equities, 
 — at least occasionally, — and so take the case of the 
 assignee out of the general rule {h) ; and the rule never 
 did (nor does) apply to negotiable instruments {i). But 
 if a bill or note (fc), as distinguished from a mere 
 cheque (Z), is overdue, the rule applies; also, if a bill is 
 bad in the first instance for fraud or illegality (m), or on 
 the ground of infancy (w), the indorsee or transferee 
 thereof, who takes from the payee with notice of the fraud 
 or illegalittf, or of the infancy, is in no better position than 
 the payee himself, — Secus, where he takes without 
 notice (o), or sues on the consideration (as distinguished 
 from the bill or note itseK (p)), or sues on some new 
 consideration (q) . 
 
 Also, the rule will not apply to instruments, which (as 
 between the original contracting parties) are to be deemed 
 to be negotiable : For example, debentures which (upon 
 the face of them) are payable to bearer, will bind the 
 company issuing them in the hands of the transferees 
 thereof for value, irrespectively of any equities between 
 the company and the original holders (r) ; and documents, 
 which of themselves are not negotiable in the strict sense 
 of that phrase (s), may (for this purpose) become negoti- 
 able by estoppel (t), — provided the estoppel be consistent 
 
 (/) Sooper V. Smart, 1 Oh. D. 90. 
 
 il/) JBartlett v. Charles, 45 Ch. D. 458. 
 
 (h) Ex parte Charley, L. R. 11 Eq. 157. 
 
 (») Lmdon and County Bank v. Mver Flate Bank, 21 Q. B. D. 535. 
 
 (k) Broivn v. Davies, 3 T. R. 80. 
 
 (l) London and County Bank v. Oroome, 8 Q. B. D. 288. 
 
 (m) Woolf\. Eamilton, 1898, 2 Q,. B. 337. 
 
 («) Smith T. King, 1892, 2 Q. B. 643. 
 
 (o) May T. Chapman, 16 Mee. & W. 355. 
 
 (p) Moulis V. Owen, 1907, 1 K. B. 746. 
 
 (}) Syams v. Stuart-King, 1908, 2 K. B. 696. 
 
 (r) Crouch- v. Credit Fancier, L. R. 8 Q. B. 374. 
 
 («) London and Coimty Bank v. 'Biver Plate Bank, 20 Q. B. D. 232. 
 
 \t) Goodwin v. Sobarts, 1 App. Oa. 476. 
 
EXPRESS PRIVATE TRUSTS. 55 
 
 with the terms of the document (u). Also, any equities 
 (in the nature of set-ofi) which arise in favour of the 
 debtor, — or against him, — subsequently to the notice given Subsequent 
 of the assignment, are not, in general, available as against ®'=^t"i|^'rl° 
 the assignee {x) . ^signee. 
 
 As regards assignments, generally, which are void for Assignments 
 illegality, there are the three following groups of such lairtv'-'^fn Ab< 
 assignments, viz., — Firstly, a Court of Equity will, upon signments 
 the ground of public policy, refuse to give effect to the contrary to 
 
 • ^ £ \\. ■ <• rn -,1 PuWlO policy. 
 
 assignment oi the pay or pension o± an omcer m the 
 army (2/), or in the navy (2), — S'cil., where the assign- 
 ment is by deed (or is otherwise by the act of the 
 assignor). But where the office is a sinecure or the duties 
 of it have ceased, it might be different (a), — Unless where 
 (by the express terms of the grant) the pay or pension is 
 rendered inalienable (&). And, nota bene, an old age 
 pension (under the 8 Edw. VII. c. 40) is expressly de- 
 clared inalienable. 
 
 On the other hand, the sa,lary of a workhouse chaplain 
 is assignable (c). Also, under the Bankruptcy Act, 1883, 
 s. 53, the pay or pension or salary of a naval or military 
 man (and of a judge even) may, to a limited extent, be 
 got at (d) . 
 
 Lastly, as regards alimony (e), — or any allowance in 
 the nature of alimony (/) (including a police-court allow- 
 ance to the wife (g)), — that is not assignable, — Scil., 
 Because it rests in (and continues to rest in) the judge, 
 to modify it at any time, either by increasing it or by 
 diminishing it (A); Nor is alimony "capable of valua- 
 
 (i() Bentinck v. London Joint Stock Bank, 1893, 2 Oh. 120. 
 
 (x) Roxburghe v. Cox, 17 Oh. D. 520. 
 
 [y) Birch v. Birch, 8 P. B. 163 ; Growe v. Frice, 22 Q. B. D. 429. 
 
 (z) Apthorpe v. Apthorpe, 12 P. D. 192. 
 
 (a) In re Ward, 1897, 1 Q. B. 266. 
 
 {b) Lucas T. Harris, 18 Q. B. D. 127. 
 
 (c) In re Mirams, 1891, 1 Q. B. 594. 
 
 id)- In re Saunders, Ex parte Saunders, 1895, 2 Q. B. 424. 
 
 (e) In re Mobinson, 27 Ch. Div. 160. 
 
 (/) Watkins v. Watkins, 1896, P. 222. 
 
 Q) Paquin v. Snary, 1909, 1 K. B. 688. 
 
 (A) Dunbar v. Dunbar, 1909, P. 90 ; and 7 Edw. VII. c. 12, s. 1. 
 
S6 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 tion" in bankruptcy (i); and the arrears of alimony (k), 
 — even arrears accrued due before the date of the receiving 
 order (Z), are not provable in bankruptcy. 
 
 (2) Aeaign- Secondly, Equity refuses to give effect to assignments 
 
 ty champeity which involve champerty and maintenance, — or cham- 
 and mainten- perty alone or maintenance alone, — champerty being 
 meTe'iites aggravated maintenance, that is to say, maintenance 
 coupled with an agreement to divide the spoil (m) : 
 Equity refuses also to enforce the buying of "pre- 
 tenced" titles (w); and the buying of a "pretenced 
 title" to lands was not only not enforceable in a civil 
 action, but (under the 32 Hen. VIII. c. 9, s. 2) subjected 
 the parties thereto to penalties and forfeitures (o), — which 
 latter provision has now been repealed (p) . 
 
 HoWever, the purchase of an interest pendente lite (q), 
 or a mortgage pendente lite (r), or even the advance of 
 money for carrying on a suit, may be good, — Scil., if 
 the parties have a cmnmon interest (s), or if there exists 
 between them the relation of father and son {t), or of 
 master and servant (m) . And to an action for mainten- 
 ance, — '8eil., simple maintenance, — " charity " (a;), — or, 
 indeed, any reasonable motive for the purchase which dis- 
 places the inference of maintenance {y), — will be a good 
 defence. Also a purchase from the defendant is always 
 good, he having the possession, and therefore something 
 more than a mere naked right to litigate; and, under 
 the Bankruptcy Act, 1883, the trustee in the bank- 
 
 (») Linton T. Linton, 15 Q. B. D. 239. 
 
 (k) In re Bawhins, 1894, 1 Q. B. 25. 
 
 \l) Eerr\. Xerr, 1897, 2 Q. B. 439. 
 
 (m) Suttley v. Suttley, L. R. 8 Q. B. 112. 
 
 (n) Uees v. De Bernard, 1896, 2 Ch. 437. 
 
 (o) Kennedy v. Lyell, 16 Q. B. D. 491. 
 
 {p) 60 & 61 Vict. 0. 65, s. 11. 
 
 (?) Knight v. Bowyer, 2 De G-. & J. 421, 455. 
 
 (r) CocicellM. Taylor, 16 Beav. 103, 117. 
 
 (s) Hunter v. Daniel, 4 Hare, 420. 
 
 (0 Burke V. Oreen, 2 Ball & B. 521. 
 
 («) JVallia v. Duke of Portland, 3 Ves. 603. 
 
 (x) Sarris v. Briscoe, 17 Q. B. D. 604. 
 
 (y) Fitzroy v. Cwoe, 1905, 2 K. B. 364. 
 
EXPRESS PEIVATE TRUSTS. 67 
 
 ruptcy {z), — and under the Companies Act, 1908, the 
 liquidator in the winding up (a), — can assign a lis pen- 
 dens of the bankrupt or company. 
 
 And, Thirdly, the purchase by a solicitor pendente lite ^^„4°^'^. 
 of the subject-matter of the suit is invalid (&), — Scil., oaparftated 
 if (and only if) he is the vendor's solicitor at the time of P^'™""'- 
 the purchase (c) . Also, an assignment by a husband of 
 his right to administer to the wife's estate, is invalid (d) ; 
 and, generally, whenever the assignee is incapacitated by 
 the law regulating the assignment, the assignment is, of - 
 course, invalid, although it should be of an English policy 
 of assurance (e) . Also, the right of a petitioning credi- 
 tor to proceed with his winding-up petition cannot be 
 assigned (/) ; and an undischarged bankrupt's expectation 
 of a surplus cannot be assigned, — 'SO as to give his as- 
 signee any, ri^ht to interfere in the bankruptcy adminis- 
 tration (g) ; and a partner may not execute an assignment 
 of his share in the partnership, — so as to entitle the as- 
 signee to interfere in the management of the part- 
 nership business (h) . And it may be conveniently men- 
 tioned here, that if a chose in action (e.g., a loan) is 
 illegal in its first creation, — and void for the illegality, — 
 say, on the grounds of public policy on which the Money 
 Lenders Act, 1900 (i), is supposed to be based, — the as- 
 signment of the chose in action to a purchaser thereof 
 for value, bond fide and without notice, will not purge 
 the illegality, — but the debt will continue to be p. void 
 debt(&). 
 
 («) Seear v. Zawson, 15 Oh. Div. 426. 
 
 (a) In re Fark Gate Waggon Works Co., 17 Oil. Div. 234. 
 
 ({) Simpson v. Lamb, 7 Ell. & Bl. 84. 
 
 («) Davis V. Freethy, 24 Q. B. D. 519. 
 
 (i) Re Jane Turner, 12 P. D. 18. 
 
 (e) Lee v. Abdy, 17 Q. B. D. 309. 
 
 (/) In re Faris Skating Fink Co., 5 Ch. Div. 969. 
 
 (g) Ex parte Sheffield, In re Austin, 10 Ch. Div. 434. 
 
 (A) Garwood y. Faynter, 1903, 1 Ch. 236. 
 
 (i) 63 & 64 Vict. o. 51. 
 
 (k) In re Sobinson, Clarkson v. Fobinson, 1911, 1 Ch. 230. 
 
58 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (F) Trusts,— 
 now created. 
 
 "The three 
 certainties " 
 required for 
 the creation 
 of a trust. 
 
 (F) Trust, Creation of. 
 
 No particular form of words is necessary to the creation 
 of a " trust ;" but these three things are necessary, viz . : — 
 (1) words which are certain; (2) a subject-matter which 
 is certain; and (3) an object which is certain, — these being 
 " THE THREE CERTAINTIES " for the Creation of a " trust." 
 
 (1) Eecom- 
 mendation 
 must be im- 
 perative, i.e.f 
 certain. 
 
 And, firstly, the words must have a meaning which is 
 imperative and certain; but such words as " willing or 
 desiring," "having the fullest confidence," "heartily be- 
 seeching," and the like, are certain enough, — Soil., in the 
 absence of other words depriving them of that effect (Z) . 
 But where a testator gives (e.g.) all his real and personal 
 estate to his wife in fee simple for her " absolute " use, 
 adding the words, "in full confidence" that she will do 
 what is right with it among the children, no trust will be 
 created (m), — Scil., unless where the added words can 
 properly be construed as a " gift over " to the children (n) . 
 Also, the mere use of the word " trust" will not create 
 one, if a trust was not intended (o) ; and, of course, a mere 
 condition is not a trust; nor, in general, is an agency, or 
 a debt (even a mortgage debt), a trust. 
 
 (2) Subject- 
 matter must 
 be certain. 
 
 Secondly, The subject-matter of the recommendation 
 must be certain, — because otherwise the whole thing 
 would be void for the uncertainty. Therefore, where a 
 testator gave his wife all his property, " trusting that she 
 would (in fear of God and in love to the children) make 
 such use of it as should be for her own a ad their spiritual 
 and temporal good, remembering always (according to 
 circumstances) the Church of God and the Poor," — The 
 Court held, that the wife was absolutely entitled to the 
 property, — Scil., Because you could not say, how much 
 was to be for God, and how much for the Church, and how 
 much for herself, &c., &o. (p). Also, generally, where 
 
 (l) OldfleUy. OUfield, 1904, 1 Ch. 549. 
 
 (m) Williams v. Williams, 1897, 2 Ch. 12 (citing Wright v. Atkins 
 T. &R. 143). 
 
 (») Hanhury v. Fisher, 1905, A. C. 84. 
 (o) The Maori case, 1902, A. C. 56. 
 {p) BugginsY. Yates, 9 Mad. 122. 
 
EXPRESS PRIVATE TRUSTS. -59 
 
 there is an absolute gift of property to one person, coupled 
 with a recommendation that the donee shall give to some 
 other person " what shall be left " at his death, the subject 
 will be considered uncertain, — ^Unless, of course, where 
 the will can be properly construed as giving only a life- 
 estate to the first taker, with a right of enjoyment in i 
 specie, or the like, and with a gift over (or remainder 
 over) upon the death of the donee (g) . 
 
 Thirdly, The object of the recommendation must be (3) The otject 
 certain; and in one case where a testator bequeathed the m^ft.be 
 residue of his property to his wife, not doubting that- 
 she (the iwidow) would consider "his near relations," the 
 objects were deemed wholly uncertain, — it not being clear, 
 whether relations at the testator's own death, or at the 
 widow's death, were intended (r). Also, the modern 
 decisions are against construing precatory words as 
 trusts (s), and rather look upon the precatory words as 
 .expressing merely the motive of the gift, — the motive, 
 being, of course, immaterial to the gift(i). 
 
 If, however, a trust was intended, in fact, and it fails If trust be 
 as a trust, the legatee or devisee does not (as a rule) take-™, ^g^fi^ly'^ 
 for his own benefit, — but is, in general, excluded from created, it 
 the beneficial interest, in favour either of the heir or of benefit not '0/ 
 the next of kin of the testator, according as the property the trustee, 
 is real estate or is personal estate ; and, in order to exclude ^"^^"at-^aw or 
 such legatee or devisee, it is only necessary to sTiow from next of kin. 
 the will that a 'trust was intended (u) . 
 
 (O) Secmt Trusts. 
 
 Where the legal estate in property given by wiU is in (fi) *<""«^ 
 the executor, but the beneficial interest in the property is tion and en- 
 undisposed of by the will, a further writing (to be foroementof, 
 executed as a will) is necessary to dispose of the beneficial 
 interest: Therefore, no trust declared by word of mouth 
 
 (?) Game\. Tome/, 1897, 1 Ch. 881. 
 
 (r) iSale-v. Moore, 1 Sim. 534. 
 
 (s) In re CmoUy, Conolly v. Conolly, 1910, 1 Ch." 219. 
 
 (t) In re Sanderson's frust,^ K. & J. 497.' 
 
 (m) Briyys v. Tmny, 3 Mao. & Gr. 546." 
 
 crea- 
 
60 JTHE ORIGINALLY EXCLUSIVE JUElSDICTION . 
 
 only, — or even declared by a further writing, unless such 
 further writing is duly executed and attested as a will (a;), 
 . or (being in existence at the date of the will («/)) is duly 
 proof of!-" incorporated in the will,— is (in such a case) valid. On 
 (1) Jn tie the other hand, if it appear by the will itself, that the 
 general case; gxecutor (or legal devisee) is intended to take the bene- 
 ficial interest also, — No parol evidence is admissible either 
 to contradict or to vary the plain effect of the will, — So 
 that the Jegal devise© or executor will, in that case, keep 
 the beneficial interest. 
 
 (21 In the case Nevertheless, — according to the universally accepted 
 o fraud. rule, — parol evidence may, in the case of fraud, he admitted 
 
 to prove, that the legal devisee or executor procured the 
 gift to he mmte to himself by the will by a fraud on 
 his part, — Scil., on the strength of his having undertaken 
 the execution of a certain Secret Trust, — In which latter 
 case, the Court will, if it finds that the secret trust is 
 lawful, decree the execution thereof (2), — and otherwise 
 will give the property (if real) to the heir-at-law, and 
 (if personal) to the next of kin of the testator. 
 
 Secret trust,— But ^^'}^Q Court requires the due and strict proof of the 
 subsequently to socret trust {o) ] and where there was, in fact, no secret 
 t^8 execution trust Originally, but the testator afterwards (and with- 
 out making a fresh will or a codicil) imposes the secret 
 trust (6), and the legal beneficial devisees are two or more 
 (whether entitled jointly or in common), the testator 
 must communicate his desire to both (or all) of them (0) . 
 
 {B.) Powers in the nature of Trusts. 
 
 {E) Powers As regards Powers in the Nature of Trusts, — and wTiioh 
 
 ^oftrusu. "'* "^^y otherwise be called Trusts in the Disguise of Powers, 
 
 — The general rule is, that (in the case of such so-called 
 
 powens) the failure of the donee of the power to exercise 
 
 the power, will not prejudice the intended objects. It 
 
 [nc] Boyes v. Carrili, 26 Ch. D. 531. 
 
 \y) Singleton v. Tomlinson, 3 App. Ca. 404. 
 
 («) Russell v. Jackson, 10 Ha. 214 ; Norris \. Fraur, L. E. 16 Eq. 318. 
 
 (a) Bowbotham v. Sunmtt, 8 Ch. Div. 430. 
 
 (b) Irvine v. Sullivan, L. R. 8 Eq. 673. 
 
 (0) Witham v. Andrew, 1900, 1 Oh. 237 ; Tee v. Ferns, 2 K. & J, 357. 
 
EXPEESS PRIVATE TRUSTS. •;- 61 
 
 is perfectly clear, of course, that (in the case of a mere 
 power left unexecuted) the Court will not execute it; and 
 that (in the case of a trust) the Court will execute the 
 trust (d), — So that the only doubt was, whether the Court 
 would exercise the power-trust or trust-power (the duty 
 to execute which had been neglected by the donee): And 
 the answer was, — the Court would execute it. 
 
 And accordingly, in Burrough v. FMloox (e), where 
 the testator (after giving life-interests in certain property 
 to his two children, with remainder to their issue) de- 
 clared, that, in case his two children should both die 
 without leaving lawful issue (which event happened), the 
 survivor of his two children should have power to dis- 
 pose of the property by will " amongst my nephews and 
 nieces or their children, either all to one of them, or to as 
 many of them ae my surviving child shall think proper," — 
 A trust was held to have been well created, in favour of 
 the testator's nephews and nieces and their children, sub- 
 ject to a power of selection only in the surviving child 
 of the testator. 
 
 And it is to be here mentioned, that when equity 
 executes an unexecuted trust-power, she applies her own 
 maxim, that equality is equity, — and divides the property 
 equally, — although the donee of the power (if she had 
 chosen) might have given unequal shares (/) . But, of 
 course, before the Court will interpose in that way, there 
 must iirst be a true power-trust or trust-power, and not 
 a mere power; and it is often difficult to say, whether 
 the power is a mere power or is a trust-power; and tha 
 circumstance, that there is no gift over (in default of 
 the power being exercised), will not of itself convert the 
 power into a trust-power (gf) . And, on the other hand, 
 a power which is, on the face of it, a general power may 
 (on the true construction of the document creating it) 
 be, in fact, a special power {h), — and may even be a trust- 
 power. , J \\ 
 
 Id) Brown v. Sigqs, 8 Ves. 570. 
 
 (e) 5 Mv. & Cr. 72. 
 
 (/) Willis T. Kymer, 7 Ch. Div. 181. 
 
 (g) Re Weelces' Settlement, 1897, 1 Ch, 289. 
 
 {h) Peover v. Mmsell, 1 J. & H. 341. 
 
62 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (E) liability 
 of purchaser 
 to see to the 
 application of 
 purchase- 
 money, where 
 there are 
 cestuis que 
 trustent. 
 
 (1) Personalty 
 —purchaser 
 exonerated. 
 
 (2) Realty,— 
 
 (a) Trust or 
 charge for 
 payment of 
 dehts and 
 legacies 
 generally, — 
 purchaser 
 exonerated. 
 
 (b) Trust for 
 payment of 
 certain debts 
 or legacies 
 only, pur- 
 chaser for- 
 merly not 
 exonerated. 
 
 Lord St. 
 Leonards' Act, 
 22 & 23 Vict, 
 c. 35, — pur- 
 chase or mort- 
 gage money 
 only. 
 
 Lord Cran- 
 worth's Act, — 
 any trust 
 money what- 
 soever. 
 
 Conveyancing 
 Act, 1881, and 
 Trustee Act, 
 1893,— any 
 trust moneys, 
 securities, &o. 
 
 (K) Liability of Purchasers for Purchase-Money. 
 
 A cestui que trust has been diversely protected against 
 the mala fideis (and even against the carelessness) of his 
 trustee; and it was anciently established in equity, that 
 any one purchasing the trust estate was bound to see that 
 the trustee duly paid over the purchase-money to the 
 cestuis que trustent. But, Firstly, a purchaser of per- 
 sonal estate was never held liable in that respect, — unless 
 where there was any fraud on his part (^); and, Secondly, 
 a purchaser ,of real estate even was held to be exonerated, 
 where the real estate was devised upon trust for the pay- 
 ment of the debts generally (with or without the legacies), 
 or was charged with their payment (/c) ; but, Thirdly, if 
 the trust or charge was for the payment of specified 
 debts, — or was for the payment of the legacies only, 
 — the purchaser was (in that case) bound to see to 
 the proper application of his purchase-money (Z), — And 
 accordingly, — and in relaxation of that old rule, it was 
 successively enacted as follows: — 
 
 By Lord St. Leonards' Act (22 & 23 Vict. c. 35), s. 23, 
 '■ the bond fi,de payment to (and the receipt of) any person 
 to whom any purchase or mortgage money was payable 
 upon any express or implied trust," efieotually discharged 
 the payer, — " unless the contrary was expressed in the 
 instrument creating the trust or security," — But the 
 statute applied only to instruments executed on or after 
 the 13th August, 1859 : By Lord Cranworth's Act 
 (23 & 24 Vict. c. 145), s. 29, "the receipt in writing 
 of any trustees or trustee for any money payable to them 
 or him by reason of any trust or power reposed or vested 
 in them or him," sufficiently discharged the payer, — But 
 the statute applied only to instruments coming into opera- 
 tion on or after the 28th August, 1860: And, eventually, 
 by the Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 20, 
 repeating the like provision contained in the Conveyanc- 
 ing Act, 1881, " the receipt in writing of any trustees 
 or trustee [for any money or for any securities, or other 
 
 (i) Collinson v. Lister, 7 De G. M. & Gr. 634. 
 
 {k) Doieling v. Hudson, 17 Beav. 248. 
 
 (Vj Elliot V. Merryman, Bam. Ch. Eep. 78. 
 
EXPRESS PRIVATE -TRUSTS. 63 
 
 personal property er effects, payable transferable or de- 
 liverable to them or him under any trust or power], is 
 a sufficient discharge for the same, — and effectually 
 exonerates the person paying transferring or delivering 
 the same from seeing to the application (or being answer- 
 able for any loss or misapplication) thereof," — a provi- 
 sion which is retrospective. And, nota bene, the Settled Settled Land 
 Land Act, 1882, s. 40, contains a similar power as regards ^pitaf^^'~ 
 funds (being capital moneys) arising under that Act, — moneys. 
 and that provision also is retrospective. 
 
 Since the changes effected by these successive enact- General con- 
 ments, a bond fide purchaser paying his purchase-money ^"ts°— that ^ 
 to the trustees, and obtaining their written receipt for the purchaser 
 same, and not Jcnotoingly participating in any fraud, is ^aseTexone- 
 now in all oases exonerated from seeing to the application rate. 
 of his purchase-money, — So far as regards all trusts and 
 charges, not only for debts but also for the legacies given 
 by the will (m), — Scil., where the trustee is lawfully sell- 
 ing the trust estate, — that is to say, is executing a trust 
 for sale, or is exercising a power of sale (either express or 
 implied) {n). But, of course, as regards mortgages and Paramount 
 other charges which are paramount to the will, — the pur- exception!^" 
 chaser is not (by these statutes, or by any of them) exone- 
 rated, — but still requires to obtain the concurrence of such 
 mortgagees or other incumbrancers in the conveyance to 
 himself, — like as in the case of legacies charged on the 
 land, where the beneficial devisee (and not the trustee or 
 executor) is selling (o). 
 
 Where it appears, that (in the case of real estate) the 
 beneficial devisee is in possession, the presumption arises 
 after twenty years from the death, that the debts of the 
 deceased have been paid, — In which latter case, the power 
 in the trustees to sell is at an end (p), — equally as, where 
 the real estate in fee simple has vested absolutely, and 
 there is no continuing purpose for which the power is 
 wanted {q) . But there is no like presumption in the case 
 
 {m) In re Dyson and Fowhe, 1896, 2 Ch. 720. 
 
 \n) Corser v. CartwrigM, L. E. 7 H. L. 731. 
 
 (o) In re Evans and Bethell, 1910, 2 Ch. 438. 
 
 (p) Re Tanqmray Villaume, 20 Oh. Div. 465. 
 
 (?) In re Cotton's Trustees and London School Board, 19 Ch. D. 624. 
 
64 
 
 THE ORIGINALLY ;EXCLUSIVE JURISDICTION. 
 
 Provided the 
 purchase be 
 from the true 
 vendor. 
 
 of leasehold property (r), — So that an executor or ad- 
 ministrator (where he has not assented to the bequest of 
 the leasehold) may, at any time, lawfully sell it, without 
 the concurrence of the beneficiaries (s), — Unless, semble,- 
 where the purchaser knows, that all the debts, &c., &o. 
 have been paid (t). 
 
 Unless where the sale is by a tenant for life in posses- 
 sion under the Settled Land Act, 1882, oris by an absolute 
 fee-simple owner, — the purchaser must also (in all cases) 
 ascertain, that the person professing to sell the real estate 
 is, in fact, the person authorised for that purpose: And 
 by Lord St. Leonards' Act (22 & 23 Vict. c. 35), ss. 15, 
 16, in the case of a charge upon lands, the trustee is mad© 
 the vendor, where the charged lands are devised to him in 
 fee simple (or for other the testator's whole estate 
 therein) ; and the executor is made the vendor in all other 
 cases (m), — Unless, of course, where there is a properly 
 qualified beneficiary, who, at the date of the death, was 
 entitled and able to sell (x) . 
 
 The implied power (to sell the charged real estate) 
 comes to an end, however, when and so soon as any express 
 power of sale contained in the will arises and tecomee 
 exerciseable (y) . 
 
 Executor or 
 administrator, 
 — equal 
 powers of. 
 
 The word "executor," in Lord St. Leonards' Act, did 
 not include " administrator " (z); but in the Trustee Act, 
 1893, executors and administrators are now (for all the 
 purposes of that Act) on a level (a) . And by the Land 
 Transfer Act, 1897 (b), as regards all testators and in- 
 testates who have died on or after the 1st January, 1898, 
 the legal personal representative may now (for every 
 purpose of administration) sell (and also convey) any real 
 estate of the deceased, — even real estate which is not 
 
 (r) Ee Whistler, 35 Ch. Div. 561. 
 
 (s) In re Venn and Furze, 1894, 2 Ch. 101. 
 
 (<) In re Terrell's Contract, 190S, 1 Ch. 65. 
 
 (m) In re Adams and Perry, 1899, 1 Ch. 654. 
 
 («) In re Barrow-in-Furness and Eawlinson, 1903, 1 Ch. 339. 
 
 (y) Sodkinson t. Quinn, 1 J. & H. 309. 
 
 {n) In re Clay and Tetley, 16 Ch. Div. 3. 
 
 («) 66 & 57 Vict. 0. 63, s. 60. 
 
 (>) 60 & 61 Viot. c. 65, a. 2. 
 
EXPRESS PRIVATE TRUSTS. 65 
 
 charged with the debts of the deceased or with any 
 legacies . 
 
 Where the sale purports to be in exercise of the power Assignee of 
 of sale contained in a mortgage deed, and the sale purports ^"ef*<S*'~ 
 to be made by the transferee of the mortgage, it must be sale in. 
 seen, that the power is exerciseable (as it usually will be) 
 by the assign of the mortgagee (c) . Also, where it is a 
 trustee who is selling, and he can only sell with the consent 
 of the tenant for life, — If it should happen that the tenant 
 for life has either mortgaged his life-estate (d), or gone 
 bankrupt (e), the mortgagee, or (as the case may be) the 
 bankruptcy trustee, must concur in the consent. 
 
 By the Conveyancing Act, 1881, s. 65, the usual receipt On a purchase 
 clause in the body of the deed (or the usual indorsement ^^J^f^^'^ 
 of such receipt on the back of the deed) sufficiently Conveyanciiig^ 
 evidences (in favour of subsequent bond fide, purchasers) ^ot appUcabiej 
 the payment of the money in such receipt expressed to 
 have been received. Also, by the same Act, s. 56, such 
 receipt (occurring either in the body or on the back of the 
 deed) is a sufficient authority to the solicitor of the vendor 
 (on his producing the purchase-deed) to receive (and to 
 give a receipt for) the purchase-money (/) ; and although but is now 
 these provisions of s. 56 were not originally applicable applicable, 
 to vendors who were trustees, but only to vendors who 
 were themselves beneficially entitled to the purchase- 
 money {g), — still, by the Trustee Act, 1893 (/;), repeat- 
 ing the like provision contained in the Trustee Act, 
 1888 (i), trustee-vendors (including executors and ad- 
 ministrators) are now entitled to the benefit of s. 56, 
 equally with ordinary vendors (fc) . But, of course, an 
 attorney, specifically appointed to sell the real estate of 
 his principal and to receive the purchase-money therefor, 
 is not (in the absence of an express clause to that effect 
 
 (c) In re Rumney and Smith, 1897, 2 Ch. 351. 
 
 (d) Jones y. Winwood, 10 Sim. 190. 
 
 («)■ In re Bedingfield and Herring, 1893, 2 Ch. 332. 
 
 (/) King v. Smith, 1900, 2 Ch. 425. 
 
 {g) In re Bellamy, 24 Cb. Div. 387. 
 
 (h) 56 & 57 Vict. c. 53, ». 1-7. 
 
 (i) 51 & 52 Vict. c. 59, s. 2. 
 
 {k) Lloyds Bank v. Bullock, 1896, 2 Ch. 192. 
 
^6 THE ORIGINALLY (EXCLUSIVE JUKISDICTION. 
 
 contained in the power of attorney) authorised to sell any 
 real estate of which his principal is only a mortgagee (I) : 
 nor may such an attorney appoint his solicitor to receive 
 the purchase-money (w), — Scil., because a deputy cannot 
 (save under an express power in that behalf) make a 
 Purchaser,— deputy (w). Also, semble, a purchaser of real estate 
 ^ards for, should not (always and as a matter of course) rest content 
 in special cases, with the usual receipt clause occurring in the body of the 
 deed, but should (occasionally at least) insist also on the 
 receipt being indorsed on the back of the deed, — a pre- 
 caution which will materially hamper the vendor in 
 afterwards pretending, that the deed (although executed 
 by him) is not his deed(o), — Scil., because the Court 
 would hardly listen to him, if he were to say, that the 
 indorsed receipt also was not his receipt (p). But a deed, 
 although duly executed, may be (not yet) a deed, — ^but 
 an " escrow " only, a thing which is (not infrequently) 
 alleged by impecunious mortgagors (q) . 
 
 (l) Re Dowson and Jenkins, 1904, 2 Ch. 219. 
 (m) He Eetling and Merton, 1893, 3 Ch. 269. 
 («) Perry v. SoU, 2 De a. P. & J. 38. 
 (o) Foster v. Mackinnon, L. E. 4 C. P. 710. 
 
 \p) Lloyds Bank V. Bullock, 18a6, 2 Ch. 192; Bagoty. Chapman, 1907, 
 2 Ch. 222. 
 
 (q) London Freehold v. Suffield, 1897, 2 Ch. 608. 
 
67 
 
 CHAPTER III. 
 
 EXPRESS PUBLIC [OR CHARITABLE] TRUSTS. 
 
 Trusts in favour of Charities (sometimes called Expresis 
 Public Trusts) are, in respect as well of their creation as 
 ^Iso of their construction and execution, subject in general 
 to the like rules as Express Private Trusts. Neverthe- 
 less, charitable gifts have sometimes received a more 
 liberal construction than gifts to individuals, — and have 
 sometimes, for reasons of state, been treated with a cer- 
 tain illiberality. 
 
 " Charitable Purposes " comprise the following objects charities,— 
 or purposes (a), namely,— definitioii of : 
 
 Firstly, The charitable uses specified in the statute (i) The objects 
 43 Eliz. c. 4, — Being the relief of aged impotent and poor ||®euz'^c°4 
 people; the maintenance of the sick, and of maimed 
 soldiers and mariners; the maintenance of schools of 
 learning, and of free schools and scholars; the repair 
 of bridges causeways sea-banks and highways, and of 
 churches; the education and preferment of orphans, the 
 marriage of poor maids, and the help of young tradesmen; 
 and 
 
 Secondly, certain uses which the Courts have at And (2) Ob- 
 
 various times held to be charitable uses within the " spirit jects analogous 
 
 ,. >i/7\(.i A -r." thereto, 
 
 and intendment (o) o± the Act, — Being such uses as 
 
 the repair of memorial windows (c), and of monu- 
 ments (d) in churches; the repair of churchyards (e), and 
 of the headstones to the graves therein (/) ; the repair 
 
 (a) Income Tax Commissioners v. Pemsdl, 1891, App. Ca. 531. 
 
 (*) 51 & 52 Vict. c. 42, s. 14, sub-s. 2. 
 
 (c) Att.-Gen. v. Euper, 2 P. Wms. 125. 
 
 {d) Soare v. Osborne, L. R. 1 Eq. 685. 
 
 \e) Att.-Gen. v. Lucas, 1905, 1 Ch. 68. 
 
 (/) McLuughlin v. Att.-Gen., 1906, 2 Ch. 184. 
 
 f2 
 
68 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 of church organs, and the maintenance of church-chimes 
 and of worship generally {g) ; the foundation of lecture- 
 ships and professorships (A), but not of prizes for yacht- 
 racing or the like (i) ; the supplying of towns with water, 
 —or, generally, the sanitation or ornamentation of 
 towns (it); the encouragement of good domestics (0, or 
 of poor emigrants (m), and the pensioning off of " old 
 and worn-out clerks" (w); the care and cure of useful 
 quadrupeds (o); and the maintenance of village clubs and 
 of reading-rooms {p), — or of other public institutes {q), 
 — for the furtherance of religious knowledge (r), and the 
 like: 
 
 Cliarities, — 
 are otjeots of 
 a public 
 character. 
 
 But objects which (although charitable in a popular 
 sense) are merely for the benefit of individuals (s), — for 
 example, a bequest to ten poor clergymen of the Church 
 of England, to be selected by J.S. (0, — are not chari- 
 table: Also, a bequest to a private institution {e.g., an 
 orphanage), maintained at the expense of an indi- 
 vidual (m), is not a charitable gift, — although a gift to 
 the vicar (or to the vicar and churchwardens) for the 
 time being is {e-x necessitate rei) a charity (ck); and a 
 bequest to "General William Booth" (of the Salvation 
 Army), "for the spread of the gospel," is charitable (y), 
 — as is also a trust to purchase land and build houses 
 thereon, and thereafter to let the houses {at easy rents) 
 to the poorer classes in populous districts (z); and a trust 
 
 {g) Farquhar v. Bowling, 1896, 1 Ch. 50. 
 
 (A) Tales v. University 'College, L. R. 7 H. L. 438. 
 
 (i) Jones V. Palmer, 1895, 2 Ch. 649. 
 
 (k) Faversham (Mat/or) v Sijder, .5 De G. M. & G. 350. 
 
 (l^ Loicombev. Wwtringhmn, 13 Beav. 87. 
 
 (m) Barclay v. Maxkelyne, i Jur. N. S. 1294. 
 
 («) Gosling v. Smith, 1900, W. N. 15. 
 
 (0) London Univerdty v. Yarrow, 23 Beav. 159. 
 
 {p) In re Scowcroft, Ormrodv. WilJcinson, 1898, 2 Ch. 638. 
 [g] In re Mann, Hardy \. Alt-Gen., 1903, 1 Cb. 232. 
 {r) AU.-Gen v. Stepney, 10 Ves. 22. 
 (s) Cooper-Bean v. Stevens, 41 Ch. D, 552. 
 
 (1) Tease v. Fattinson, 32 Ch. Div. 154. 
 (u) Slevin v. Eephurn, 1891, 2 Ch. 236. 
 {x) Gordon T. Craigie. 1907, 1 Ch. 382. 
 \y) Lea \. -Cooke, 34 Ch. Div. 628. 
 
 \i) Lewis v. Sutton, 1901, 2 Ch. 640. 
 
CHARITIES. 69 
 
 also for indigent male persons occupied in scientific pur- 
 suits (a) . 
 
 The Court in general settles a "scheme" for the ad- Charitable 
 ministration of charitable bequests, — on a reference to when and 
 chambers (b), and the Court may also afterwards (and ^^"j''"* 
 from time to time) amend (c), or vary (d), the scheme so 
 settled; but a scheme will not be directed, when the 
 legatee is evidently intended by the testator to have an 
 absolute discretion in his application of the fund (e). 
 The Charity Commissioners may also settle schemes (/), 
 — and may (with the aid of the Court) summarily enforce 
 the provisions of these schemes (gr), — and also from time 
 to time, vary their schemes {h) . But a charity which 
 is supported entirely (^), or in part (fc), by voluntary 
 contributions is not liable to be controlled by the Com- 
 missioners, — Scil., to the extent of such voluntary sup- 
 port; and sometimes the jurisdiction of the Commis- 
 sioners has been wholly divested out of them, and vested 
 in (e.g.) the Board of Education (?). 
 
 Although it is the Attorney-General who (most pro- Litigation 
 perly) enforces charitable trusts, — they being a matter of concerning the 
 public concern, — still any private individual may do so, _cer^S,te^' 
 provided he first obtain the certificate of the Commis- of Commis- 
 sioners to do it (m) : Which certificate may be obtained *^™™^ °- 
 even pending the action («); But the certificate is only 
 required, where the administration of the charity estates 
 is materially involved in the action, — the object of the 
 certificate being to protect the estates of the charity. 
 
 (a) Wolr V. limm, 1908, A. C. 162. 
 
 (A) Be Hyde Park Place Charity, 1911, 1 Ch. 67S. 
 
 (c) Att.-Gtn. V. Worcester (Bp.), 9 Ha. 328. 
 
 (d) In re Baton's Charity, 1908, 1 Oh. 205. 
 
 (e) Walsh V. Gladstone, 1 Phil. 200. 
 
 {/) The Weir Hospital, 1910, W. N. 82. 
 
 Ig) John Street Chapel ease. 1893, 2 Ch. 618. 
 
 (A) Re Mason Orphanage, 1896, 1 Ch. 54, 596. 
 
 (») Me Clergy Orphan Corporation, 1894, 3 Ch. 145. 
 
 {k) Ee Stockport Schools, 1898, 2 Ch. 687. 
 
 (l) Berkhamsted Grammar Hchool erne, 1908, 2 Ch. 25. 
 
 {)«) Roohc v. Dawson, 1895, 1 Ch. 480. 
 
 (n) Bendall v. Blab; 45 Ch. D. 139. 
 
70 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 I. Eespects 
 in which 
 charities are 
 favoured, — 
 (1) General 
 intention 
 effectuated,— 
 
 Provided the 
 intention is 
 charitaWe. 
 
 Discretion, — 
 in executors, 
 as to choice 
 of objects. 
 
 (I) Charities are favoured above individuals in thef 
 respects following: — 
 
 (1) Firstly, — ^If the testator has expressed a general 
 intention of charity, but has left uncertain the particular 
 mode in vsrhich the intention is to be carried into effect, 
 — or if the particular intention (as being, e.g.,ior a super- 
 stitious use) is illegal (o), — the Court will uphold the in- 
 tention of charity, — Because if any bequest be for a charity, 
 and the purpose of charity be paramount, — it matters 
 not that the objects are either uncertain or illegal. But, 
 in all cases, the object must be distinctly charitable: For, 
 if the bequest may be disposed of for any general pur- 
 p:ose, whether charitable or otherwise — or for charitable 
 or other general purposes at discretion, — the bequest will 
 be void, as being not exclusively charitable (p). But if 
 only the purpose be exclusively charitable, it will not 
 render the gift void, merely to show, that there is (in 
 fact) no such institute as that named in the will (q) . Also, 
 objects which are described as " charitable and deserv- 
 ing "(r), or as "charitable and benevolent " (s), will 
 occasionally be construed simply as charitable objects, the 
 added words being treated as merely restrictive (r), or 
 being read ejusdem generis ( t) . But a gift expressed to 
 be "for some one or more purposes, charitable or philan- 
 thropic" (m), or "for charitable, religious, or other 
 societies " (x), would not be so construed, — but would be 
 void as not being exclusively charitable. 
 
 A testator sometimes leaves it to the discretion of his 
 executors, to choose among his charitable objects; and he 
 may do that well enough (y), if only he shows a para-r 
 mount intention of charity (0) ; but in the absence of suoh 
 paramount intention, the gift will (in such a case) be 
 void for uncertainty (a). Also, where some of the objects 
 
 (0) Cnry v. AUot, 7 Ves. 490. 
 
 (p) Moricc V. Bishop of Durham, 10 Ves. 622. 
 
 (}) jSannen v. Eillyer, 1902, 1 Ch. 876. 
 
 (r) Obert v. Barrow, 35 Ch. Div. 4 72. 
 
 (s) Jarvis v. Birmingham Corporation, 1904, 2 Ch. 354. 
 
 (i) JSargrmves v. Taylor, 1905, 2 Ch. 400. 
 
 (!() Ill re Sidney, 1908, 1 Ch. 126, 488. 
 
 (x) In re Davidson, 190.1, 1 Ch. 567. 
 
 (S^) Crawford -a. Forshau; 1891, 2 Ch. 261. 
 
 (z) Gordon \. Craigie, 1907, 1 Ch. 382. 
 
 (o) Grimmdy Grimond, 1905, A. C. 104. 
 
CHARITIES. Tl 
 
 are charitable, and the others are not so, yet if the 
 executors have a discretion as to apportioning the bequest 
 among the objects, the bequest will be good as a chari- 
 table bequest (&). And here note, that a friendly society 
 (being for the relief of poverty) will be (c), and other- 
 wise it will not be {d), a charity; and a voluntary associa- 
 tion {e.g., a sisterhood) may be (or may not be) a charity, 
 — or may be a charity in part only (e); but an advowson 
 is not a charity, nor is its purchase a charitable object (/), 
 — at least, in the general case {g). Also, the Livery Com- 
 panies of London are not charities {h) . 
 
 (la) Where the literal execution of a charitable trust (la) Doctiin^ 
 either originally is or afterwards becomes inexpedient or °* Q'-i'"*- 
 impracticable (that is to say, impossible {i)), the Court 
 will execute the trust cy-pres, — that is to say, as nearly 
 as it can to the original purpose, — the failure of the 
 particular mode in which the charity is to be effectuated 
 not destroying the charity (;') . Also, if a legacy be given 
 to a charity, and the charity survives the testator, but 
 afterwards (and before receiving the legacy) ceases to 
 exist, the legacy will be applied cy-pres (k) . But if the 
 charity has ceased (l), — that is to say, has wholly 
 ceased (to), — to exist before the testator's death, or 
 becomes impossible either before or after the death, the 
 bequest will fail(w). 
 
 The doctrine of cy-pres being applicable, only where Limit to tite- 
 the testator has manifested a paxamount intention of ?^"£"* 
 charity, — If he has had but one particular object in his 
 mind, — as, for example to build a church at W., — and 
 that object cannot be answered, the doctrine will not be 
 
 (*) Salushiry v. Benton, 3 K. & J. 529. 
 
 (c) Bruty v. Uachaij, 1896, 2 Ch. 727. 
 
 (rf) Braithwaite v. Att.-Gen., 1909, 1 Ch. 510. 
 
 («) Cocks V. Manners, L. R. 12 Eq. 574. 
 
 (/) Sunter v. Att.-Gen., 1899, A. C. 309. 
 
 (V) Lawrie v. Jtt.-Oen., 1904, 2 Ch. 643. 
 
 [h) In re Meeeh, Butchers' Co., 1910, 1 Ch. 426. 
 
 (i) The Weir Hospital, 1910, 2 Ch. 124. 
 
 [j) Moggridge v. Thackwell, 7 Ves. 69 ; Att.-Gen. t. The Ironmmgers^ 
 Co., 2 Beav. 313. 
 
 [k] Slevin v. Sepiurn, 1891, 2 Ch. 236. 
 
 (l) Broadient v. Barrow, 29 Ch. D. S60 ; and distingoish Moore v. 
 Sonierset, 1909, 2 Ch. 410. 
 
 Im) EaywardY. Att.-Gen., 1907, 1 Ch. 166. 
 
 («) Fowler y. Att.-Gen., 1909, W. N. 59. 
 
72 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 ^2) Defects in 
 
 •conveyances 
 
 supplied. 
 
 applied (o); and if {e.g.) the bequest is upon trust to 
 pay the income to the incumbent of the church of H. 
 for the time being, so long as he permits the sittings to 
 be occupied rent-free, there is no paramount intention 
 of charity (p) . 
 
 (2) Secondly, — In further aid of charities, the Court 
 will supply all defects in conveyances (not being defects 
 which are declared fatal by statute {q)), — although, in the 
 case of private individuals, the imperfection in the con- 
 veyance (being in favour of a volunteer) would prevent 
 the trust from arising. 
 
 (3) Eesulting (3) Thirdly, — Charities are favoured, in respect of re- 
 to^charitieB^*^ suiting trusts, the following rules being applicable in such 
 a case, that is to say: — 
 
 (a) Where a person makes a valid gift (whether by deed 
 
 or by will), and expresses a general intention of 
 V , charity, but either particularises no objects (r), 
 
 or such as do not exhaust the proceeds (.s), the 
 Court will not suffer the property in the first 
 case, or the surplus in the second, to result to 
 the settlor (or to his representatives), but will 
 take upon itself to execute the general intention: 
 And 
 
 (b) Where a person settles land for purposes which 
 
 at the time exhaust the whole proceeds, but an 
 excess of income subsequently arises, the Court 
 will order the excess to be applied in the same 
 or the like manner with the original amount (t). 
 But 
 
 (c) If the settlor do not give the land {Soil., the whole 
 
 rent of the land) to the charity, but (noticing 
 the land to be of a certain value) appropriates 
 part only to the charity, — the surplus will result 
 to the settlor (or to his heir-at-law or residuary 
 devisee (u)); and such surplus will not be avail- 
 
 («) Jiroadbent v. Barrow, 29 Ch. Div. 560. 
 
 [p) In re Randell, Sandell v. Dixon, 38 Ch. Div. 213. 
 
 (}) Sai/er v. Sat/er, 7 Hare, 377 ; Innes v. Sai/er, 3 Mac. & Gr. 660. 
 
 (»•) Att.-Gen. v. Hcrriek, Amb. 712. 
 
 (s) Att.-Gen. v. Tunna, 2 Ves. Jr. 1. 
 
 (4 Beverley v. Att.-Gen., 6 H. L. Ca. 310. 
 
 (m) Att.-Gen. v. Trin. Coll. Cainb., 24 Beav. 383. 
 
CHAEITIES. 73 
 
 able thereafter for the charity, even although 
 the part appropriated should become insuffi- 
 cient for the charitable purpose {x) . 
 
 (4) Fourthly, — Gifts to charities are not within (nor (4) charities 
 subject to) the Rule of Law against Perpetuities (?/), — from^rfeof 
 That is to say, where there is a valid immediate giit to Perpetuities, 
 one charity, a gift over to another charity is not subject 
 
 to the rule (2) . Nevertheless, an immediate gift, which 
 is timed not to take effect until the happening of a con-- 
 tingency which is obnoxious to the rule of perpetuities, 
 would be void, in the case of a charity equally as in the 
 case of an individual (a) ; and a gift over to a charity 
 following after a gift to an individual would also be void, 
 if it was so limited as possibly not to take effect until 
 the happening of some event which might not happen 
 within the limits of the rule (6): Also, generally, if the 
 gift is upon trust for the repair of some monument in 
 a church (c), or is otherwise charitable, it is not subject 
 to the rule; but if the gift is for a purpose not chari- 
 table (<i), it is within and subject to the rule(e). 
 
 (5) Fifthly, — Voluntary conveyances of lands to (5) Voluntary 
 charities were not within the 27 Eliz. cap. 4 (/), although foTSLT 
 the like conveyances, in the case of individuals, would goodnotwith- 
 have been void [as against subsequent purchasers and 27 eUz^c 4 
 mortgagees], — Scil., prior to the Voluntary Conveyances 
 
 Act, 1893, which has now repealed the 27 Eliz. c. 4, as 
 in the preceding chapter is stated. 
 
 (II) Charities are treated on a level exactly with indi- il. Respects in 
 viduals in the respects following:- ^^fteSo" 
 
 /I \ -n- 1 TO . . , • 1 • 1 a level with 
 
 (1) J^lrstly, — if a testator gives his property to such private 
 person as he shall name to be his executor, and he appoints "^dividuais. 
 no executor, — or if he appoints an executor, who dies in executor 
 the testator's lifetime, and no other is appointed in his supplied. 
 
 {x) Att.-Gm. V. Gaseoyne, 2 My. & K. 647. 
 
 [y) Thomas v. Sowell, L. R. IS Eq. 198. 
 
 («) Christ's Simpital V. Grainger, 1 Mac. & G. 460. 
 
 («) Chamberlain v. Broc/cett, L. R. 8 Ch. App. 211. 
 
 (S) Zloi/d Phillips V. Davis, 1893, 2 Ch. 491. 
 
 (tf) Boare v Osborne, L. R. 1 Eq 585. 
 
 (a!) Tylers. Tyler, 1891, 3 Ch. 252. 
 
 (e) Thomson v. Shakespeare, 1 De G. P. & J. 399. 
 
 (/) Ramsay v. Gilchrist, 1892, A. C. 412. 
 
74 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 place, — In either of these two oases, and whether the be- 
 quest be in favour of a charity or of an individual, the 
 Court will carry into effect that bequest, — That is to say, 
 mil appoint a trustee to discharge the duties of the 
 executor (g), the beneficiary being certain, and only the 
 legal owner uncertain (h) . 
 
 t m ^""^b^ "* ^^) Secondly, — Lapse of time is in equity a bar in the 
 
 ' , " case of charitable trusts, exactly as it is (where it is) a bar 
 in the case of mere private trusts, — For example, as re- 
 gards the remedy for relief from a wrongful sale (^) or 
 wrongful lease (fc) of the charity lands, — In the case of 
 the breach of an express trust of which the purchaser as 
 lessee has notice, the lapse of time is, of course, no bar in 
 either case (I). And under the Trustee Act, 1888 (m), — 
 whereby, in certain cases, lapse of time may now (in 
 favour even of the trustees themselves) be pleaded in bar 
 of the action against them for a breach of trust, it will 
 make no difference, semble, whether the trust is a private 
 trust or is a public (or charitable) trust. 
 
 (3) Illegal, (3) Thirdly, — Where there is a gift upon trust for 
 
 fromlegal"*' charitable and other purposes, and the charitable purposes 
 are legal, but the other purposes are illegal (whether by 
 the common law or by statute (n)), — If the proportion 
 attributable to the charitable purposes can be ascertained 
 and the legal separated from the illegal, the Court will 
 not suffer the intended charitable bequest to fail, but will 
 uphold the gift, to the extent of the ascertainable propor- 
 tion (o). On the other hand, if the proportion cannot 
 be ascertained (or if the legal cannot be severed from the 
 illegal), then (in the case of charities as in the case of 
 individuals) the whole gift will either fail,— -which, in the 
 general case, it will do {p), — or else will enure in favour 
 of the legal purposes exclusively, — which (on the true 
 construction of the bequest) it will sometimes do (q) . 
 
 (g) M' Alpine v. Moore, 21 Ch. Div. 778. 
 
 (A) Mills V. Farmer, 1 Mer. 55, 96. 
 
 (») St. Mary Magdalen v. Atl.-Gm., 6 H. L. Ca. 189. 
 
 (A) Att.-Gen. v. Davei/, 4 De G. & J. 136. 
 
 {I) Att.-Gen. v. Christ's Hospital, 3 My. & K. 344. 
 
 (m) 51 & 52 Viot. c. 59, s. 8. 
 
 («) Piekering v. Ilfracmnhe R. G., L. R. 3 C. P. 235. 
 
 (o) Soare T. Osborne, L. E.. 1 Eq. 585. 
 
 (p) Chapman v. Brown, 6 Ves. 404. 
 
 [q] Fisk V. Att.-Gen., L. R. 4 Eq. 621. 
 
CHARITIES . 75 
 
 And here note, that where the gift is upon trust for the 
 joint (or equal) benefit of a charity and an individual, and 
 both the charity and the individual are left indefinite, the 
 whole gift will fail (r); but if the individual be definite 
 and only the charity indefinite, the whole gift will be 
 good, — the charity taking half the benefit, and the in- 
 dividual the other half of it (s) . And further note, that 
 where the gift is in ambiguous language, and (according 
 to one interpretation of it) it is illegal, and (according to 
 the other interpretation) it is legal, the legal interpreta- 
 tion will prevail, — in the case of charities as of in- 
 dividuals, — ut res magis valeat quam pereat(t). 
 
 (4) Fourthly, — The rule in Saunders v. Yautier (n), — (4) Accumuia- 
 a rule which was approved in Gosling v. Gosling (x), — is ^tos^tffor™^' 
 equally applicable to donees who are charities £is to donees disregarded 
 who are private individuals: That is to say, — Wherever ^^^^.^^1^ 
 there is a gift (by deed or by will) to a charity or to an ■becomes in- 
 individual; and the gift is absolutely vested, but the pay- defeasible, 
 ment over to the donee or legatee of the property com- 
 prised in the gift is postponed to a future day, with a 
 direction to accumulate the income in the meantime, — In 
 such a case, if no one (save only the donee or legatee) lias 
 any interest in the accumulations, the donee or legatee 
 (whether a charity or an individual) may demand 
 immediate payment: In other words, when a legacy is 
 directed to accumulate for a certain period (say, till the 
 legatee attains the age of twenty-five years), the legatee 
 (if he has an absolute indefeasible interest) is not bound 
 to wait until the expiration of the period, but may require 
 payment the moment he is competent {e.g., on attaining 
 the age of twenty-one years) to give a valid discharge («/) ; 
 and, of course, a charity is always competent to give such 
 a discharge. 
 
 (Ill) Charities (compared with individuals) are (or iii. Two 
 
 respects in 
 
 ()•) James v. Allen, 3 Mer. 17. 
 
 («) Smter\. Att.-Gen., 1899, A. C. 309. 
 
 It) Shep. Touch. 80. 
 
 {«.) Cr. & Ph. 240. 
 
 (x) John. 265. 
 
 (y) Williums v. Williams, 1907, 1 Ch. 180. 
 
THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 which chaiities 
 are, or were, 
 disfavoured, — 
 (1) Assets 
 used not to be 
 marshalled in 
 favour of 
 charities, — 
 
 used to be) treated with an appearance of disfavour in the 
 two following classes of oases, that is to say: — 
 
 (1) Firstly,— Assets would not have been marshalled 
 in their favour, because to do so would have been to offend 
 against the Mortmain Acts, or (at all events) against the 
 spirit of these Acts : Therefore, if a testator gave his real 
 and personal estate to trustees, upon trust to sell; and 
 (after' payment of his debts and legacies) he bequeathed 
 the residue of the mixed sale-proceeds to a charity, — 
 Equity would not have thrown the debts and ordinary 
 legacies upon the proceeds of sale of the real estate, in 
 order to leave the pure personalty undiminished for the 
 charity (z) ; but the rule of the Court was, to appropriate 
 the mixed fund, as if no legal objection existed to applying 
 any portion of it to the charity legacies, and then to hold 
 such a proportion of the charity legacies to fail as would 
 (in that way) have fallen to be paid out of the sale- 
 proceeds of the real estate (a) . But if the testator had 
 himself (in such a case) directed the property to be mar- 
 shalled in favour of the charity, the Court would have 
 carried out his direction in a manner most favourable 
 for the charity (6) : Therefore, where a testator gave 
 and devised the residue of his estate (both real and 
 personal) to his trustees (whom he also appointed his 
 executors), upon trust thereout in the first place to pay 
 certain legacies to individual legatees, and as to the residue 
 thereof, — or such part or parts thereof as might lawfully 
 be appropriated for the purpose, — for such one or more 
 specified charities and in such proportions as the trustees 
 (in their uncontrolled discretion) might think fit, — The 
 trustees were held entitled to appropriate the whole sur- 
 plus to charities which were exempted from the disability 
 of taking land by devise (c), — although, of course, the 
 trustees could not appropriate any part of these proceeds 
 to an unexempted charity (d) . 
 
 Marshalling in But all these rules as to marshalling now continue to 
 caseofchanj {^g operative, only as regards the wills of testators who 
 — noueoessity have died before the 5th August, 1891, — For by the 
 
 for, in future. 
 
 (s) AiMcorth V, Munn, 34 Ch. Div. 391. 
 {a) Williams v. Kershaw, 1 Keen, 274, n. 
 (S) Miks V. Samson, L. K. 9 Ch. App. 316. 
 
 (c) Broadbent v. Barrow, 31 Ch. Div. 113. 
 
 [d) IFhitu-ham V. Piercy, 1898, I Ch. 565. 
 
 Unless by 
 express direc- 
 tion of the 
 testator ; 
 Or unless, in 
 the case of 
 charities 
 authorised to 
 take real 
 &state by 
 devise, under 
 discretionary 
 gifts to 
 executors. 
 
CHARITIES . 77 
 
 Mortmain and Charitable Uses Act, 1891 (e)' it has been 
 enacted (as regards the wills of testators who shall have 
 died after that date), that (in effect) land may now be 
 given by will to a charity (subject to the dutj^ of selling it 
 within a year) ; and that money secured on land, or arising 
 out of or connected with land, shall not (as regards chari- 
 table bequests) be considered as land at all, within the 
 Mortmain Acts (/) ; and that, where money is given by 
 will to a charity, with a direction superadded to lay the 
 money out in land, the gift shall be good, and the super- 
 added direction only shall be void : Also, the Court may 
 (by order) authorise the retention of the land unsold (gr) 
 or the acquisition of the land directed to be purchased {h), 
 — Soil., where it is wanted for occupation by the charity; 
 and the Court may also, in a proper case, extend the time 
 for selling the land {i) . 
 
 (2) Secondly, — Charitable purposes must be such gene- (2) Gifts to 
 rally as offend Neither against any -statute nor against obn"xioiis ^^ 
 the common sense of the country (morally and politically) character, not 
 for the time being: Wherefore, gifts for superstitious te^aUd*° 
 purposes, — e.g., for saying masses for the dead, — have 
 long been (and still are) deemed void, as offending against 
 the statutes 23 Hen. VIII. c. 10 and 1 Edw. VI. c. 14, 
 and as offending also against the (for the time being) pre- 
 vailing moral and political sense of the country {k), — 
 and that is so, notwithstanding the statute 23 & 24 Vict, 
 c. 134, regulating Roman Catholic charities. Also, a gift 
 for the total suppression .of vivisection, is a gift which 
 rather offends the moral sense of the public (Z), — and so 
 is deemed void: But doubtless, all these purposes (or some 
 of them) will in time cease to be deemed offensive, and 
 may even come to recommend themselves to the public 
 conscience, — In which latter case, the gifts in aid of them 
 will become valid charitable bequests. But note, that as 
 regards gifts to individuals, there is no room for the public 
 conscience to interfere, — however undesirable a person the 
 individual legatee may be. 
 
 («) 54 & 55 Vict. c. 73. 
 
 (/) Douglas v. Simpson, 1905, 1 Ch. 279. 
 
 (g) Beelmi v. Sidehottom, 1902, 2 Ch. 389. 
 
 (h) Brompton Boipital V. Lewis, 189+, 1 Ch. 297. 
 
 (i) In re Eyland, Roper t. Syland, 1903, 1 Ch. 467. 
 
 (A) Ueatkv. Chapmatr,2 Drew. 417. ' 
 
 {Vj Cross T. London Anti- Vivisection Society, 1895, 2 Ch. 501 . 
 
78 
 
 CHAPTEE IV. 
 
 IMPLIED AND EESULTING TRUSTS. 
 
 An implied trust is a trust founded upon the unexpressed 
 but presumed {i.e., implied) intention of the party; and 
 there are the five following principal varieties of it, viz. : — 
 
 (1) Eesulting 
 trust to pur- 
 chaser upon 
 conveyance to 
 stranger. 
 
 (1) The trust wMch remits to the actual purchaser of 
 property, where he procures it to be conveyed to a 
 stranger. — Lands (whether freehold, copyhold, or lease- 
 hold), when purchased by A.B., and (by his direction) 
 conveyed to CD., remain (in equity) the property of 
 A.B., — So that CD. is but a trustee for A.B. (a). And 
 this doctrine is applicable also to pure personal estate (fe). 
 And the doctrine is, of course, applicable also to the case, 
 where two or more persons advance the purchase-money 
 jointly and the purchase is taken in the name of one of 
 them only, — For there will (in that ease also) be a re- 
 sulting trust in favour of both or all of them proportioned 
 to the money which they have respectively advanced (c) . 
 
 And where the advance of the purchase-money by the 
 real purchaser does not appear on the face of the deed 
 (and even if the deed states it to have been made by the 
 nominal purchaser), parol evidence is admissible, to show 
 the actual purchaser, — i.e., to prove by whom the advance 
 was actually made {d) : Which evidence merely shows, 
 that the nominal or ostensible purchaser was (in a sense) 
 but the agent of (or a mere name for) the true purchaser, 
 — a purpose for which parol evidence is always admis- 
 sible: But if the iagent for A.B. purchases in his (the 
 
 a) Dyer v. Dyer, 2 Cox, 92. 
 i) Mht-andy. Dancer, 2 Ch. Ca. 26. 
 «) Wray v. Steele, 2 V. & B. 388. 
 {d) Heard v. PilUy, L. R. 4 Ch. App. 518. 
 
IMPLIED AND RESULTING TRUSTS. 79 
 
 agent's) own name, and pays also the purohase-money 
 out of his (the agent's) own moneys, and the lands are 
 conveyed to him (the agent), — The principal cannot (in 
 such a case) claim the lands as upon a trust for himself, — 
 Scil., "because the Statute of Frauds prevents him from 
 doing that (e), — Scil., unless where it would be a fraud 
 in the agent to keep the purchase for himself (/). 
 
 No trust will result, however, in these cases, where it ?[° !l®^^''^^' 
 would be against public policy to permit the presumption, would defeat 
 — As where the subject-matter of the conveyance is a the policy of 
 British ship (g); or is land given to qualify the grantee 
 to vote at a Parliamentary election (h) ; or is money de- 
 posited in a third party's name in evasion of the Savings 
 Bank Acts (i), — In all which cases, the apparent donee 
 will, therefore, retain the benefit for himself. But, as 
 regards a policy of life-assurance (which is void for want 
 of interest), if the Insurance Office (waiving that original 
 illegality) actually pays over the policy-moneys, these 
 moneys will be and remain the property of the person 
 entitled to give the legal receipt for them (/<;). 
 
 Resulting trusts arise only by presumption of equity; Resulting 
 and they may, therefore, be rebutted by parol evidence rebuttedby*^ 
 to the contrary: For example, if the true purchaser is evidence of 
 under a legal obligation to maintain (or to otherwise pro- mtention -^ 
 vide for) the person in whose name the conveyance is 
 taken, — as in the case of purchases taken in the names of 
 children, — There will, in general, be no resulting trust e.g., By the 
 for the actual purchaser in such a case; but the contrary sumptSi^of ' 
 presumption will arise, that an advancement was in- advancement, 
 tended (Z). And, generally, this contrary presumption W in whose 
 of advancement will be raised, not only in favour of- a sumption^o^^^" 
 legitimate child (m) (including, now, the children of a advancement 
 
 X / ^ c; ^j2j ijg raised. 
 
 (e) JBartlett v. Pickergill, 1 Eden. 515; James y. Smith, 1891, 1 Ch. 
 384. 
 
 (/) To'nig V. Feathey, 2 Atk. 2.54. 
 
 (g) Soldemess v. Lampert, 29 Beav. 129. 
 
 (h) ChiWers v. ChiUers, 1 De G. & J. 482. 
 
 (i) Field v. Lonsdale, 13 Beav. 78. 
 
 (k) AH.-Gm. v. Murray. 1903, 2 K. B. 64. 
 
 (I) Whitehouse v. Edwards, 37 Ch. Div. 683. 
 
 ()«) Sidmouth v. Sidmouth, 2 Beav. 447 ; Dyer v. Dyer, 2 Cox, 92. 
 
80 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 second wife who was a sister of the deceased iirst wife (n)), 
 but also in favour of all children whomsoever towards 
 whom the person advancing the purchase-money has 
 placed himself in loco parentis (o) : For example, in 
 Beckford v. Beclcford {p), an illegitimate son; in Ebrand 
 V. Dancer (q), a grandchild (whose father was dead); in 
 Currant v. J ago (r), the nephew of a wife; and in Stand- 
 ing V. Bowring (s), a godson. And the presumption will 
 also arise in favour of a wife(^), — Scil-, who is such at 
 the date of the purchase, although the marriage should 
 afterwards be dissolved or declared null (?(), — and as 
 between a widowed mother and her invalid daughter {x) . 
 
 (b) In whose 
 favour thepre- 
 sumption will 
 not be raised. 
 
 But the presumption has not yet been extended to the 
 illegitimate children of the daughter of the purchaser {y), 
 nor to the sister of the wife of the purchaser {z) . Nor 
 will the presumption arise, when the purchaser makes the 
 purchase in the names of himself and a woman (or in 
 the name of the woman alone), with whom he has con- 
 tracted an illegal marriage, — as, formerly, in the case of 
 a deceased wife's sister (a) ; or with whom he has con- 
 tracted no marriage at all, — as in the case of a mere kept 
 woman (&). And similarly, where a woman (who was 
 a widow) kept a man, the presumption of advancement 
 was repelled (<j). Also, where A.B. (a spinster) was en- 
 titled to a leasehold property, — and she mortgaged it, and 
 then afterwards married CD.; and CD., during the 
 marriage, paid off part of the mortgage debt (out of his 
 own moneys), and then died leaving A.B. surviving, — 
 the part payment off was not deemed an advancement 
 
 n) Green v. Meinall, 1911, "W. N. 137. 
 o) Standing v. Bmvring, 31 Ch. D. 282. 
 p) Lofit, 490. 
 q) 2 Ch. Ca. 26. 
 V) 1 Coll. 261. 
 «) 31 Ch. Div. 282. 
 t) Drew V. Martin, 2 H. & M. 130. 
 m) Dunbar v. Dunbar, 1909, P. 90. 
 'x) Sayre \. Hughes, L. E,. 5 Eq. 380. 
 y) Tttcker v. Bnrrow, 2 H. & M. 515. 
 z) In re Scottish Eqmtable Life PoJicy, 1902, 1 Ch. 282. 
 a) Soar v. Foster, 4 K. & J. 152 ; aJid (now) 7 Edw. VII. o. 47. 
 g>) .Rider y. Eidder, 10 Vea. 360. 
 c)- Jttlnes V. Holmes, 4 De G. F. & J. 470. 
 
IMPLIED AND RESULTING TRUSTS. 81 
 
 hy CD. for A.B.'s benefit, — and was therefore recouped 
 to C.D.'s estate (d). 
 
 If a lawfully married woman should purchase in the Mother is 
 name of her lawful child (e) — whom, of course, she is fifher^*""" 
 not bound to maintain or to provide for (/), — or should liability being 
 purchase in the name of her lawful husband (g), — That <i^«''«"*- 
 would not be deemed an advancement of the child or of the 
 husband, — Scil-, unless an express intention in that behalf 
 was proved: And the law has not, in this particular, been 
 altered by the Married Women's Property Act, 1882 (h), 
 notwithstanding that, by that Act (ss. 20, 21), a married 
 woman (having separate property under the Act) is now 
 laid under a contingent liability to maintain her husband, 
 and also her lawful children (^), — Scil., because such 
 statutory contingent liability is of a very limited cha- 
 racter, and does not extend further than the statute 
 expresses (fc) . And although the statutory liability has 
 now been extended to include the father and also the 
 mother of the married woman (l), still the liability con- 
 tinues to be of the same limited character. 
 
 And just as the presumption of a resulting trust may Thepresump- 
 be rebutted, so also the presumption of advancement may advancement 
 be rebutted; and facts antecedent to (or contemporaneous is rebuttable 
 with) the purchase (or so immediately after it as to con- e^J^°g_ 
 stitute a part of the transaction) may properly be given 
 in evidence for this purpose: In other words, evidence 
 is admissible, for the purpose either of rebutting the pre- 
 sumption of advancement (m) or of supporting that pre- 
 sumption (n) . But facts subsequent, consisting of the 
 acts and declarations of the father, although they may be 
 used in evidence by the son, cannot be used in evidence 
 by the father (o) : Wherefore, the presumption of ad- 
 
 (d) Pitt V. Pitt, T. & R. 180. 
 
 (e) In re Be Visme, 2 De G. J. & S. 17. 
 (/) Holt V. Frederick, 2 P. Wms. 356. 
 Ig) Mercier y. Mercier, 1903, 2 Ch. 98. 
 (k) 45 & 46 Vict, c. 75. 
 
 (i) Bennett v. Bennett, 10 Ch. Div. 474. 
 
 (A) Ponttjpool Guardians v. Buck, 1906, 2 K. B. 896. 
 
 (I) 8 Edw. VII. c. 27, s. 1. 
 
 (m) Stock V. McAvoy, L. R. 1-^ Eq. 55. 
 
 {«) Lamplugh y. Lamplugh, 1 P. Wms. 113. 
 
 (o) Reddington v. Reddingtm, 3 Ridg. P. C. 195, 197. 
 
82 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 vancement will not be rebutted, by the mere circumstance 
 that the father {suhsequently to the purchase) retains 
 the property under his control, and receives the rents and 
 profits (p), or the dividends and interest (g), — and con- 
 tinues so to do even after the son has ceased to he a minor. 
 On the other hand, the subsequent acts and declarations 
 of the son may (apparently) be used by the father, — at 
 least, where there is nothing showing the intention of the 
 father (at the time of the purchase) sufficient to 
 counteract the effect of those declarations (r). 
 
 It has been considered, that if the son has been already 
 fully advanced and provided for, that is a strong circum- 
 stance against the presumption of a further advancement 
 in his favour (s) : Also, where the son was the solicitor 
 of the father, that circumstance alone was sufficient to 
 defeat the presumption of advancement (^); and con- 
 siderations of mere convenience even, may defeat the 
 presumption (m), — especially in the case of the opening 
 of banking accounts (x), or in the payment off (or re- 
 duction) of a mortgage debt on settled estates {y) . 
 
 Where the case is not one of the original purchase of 
 land or of goods by A. in the name of B., but is the case 
 merely of a conveyance by A. to B. of land already vested 
 in A. (z), — or is the case merely of a transfer by A. to 
 B. of stocks or shares already standing in the name of 
 A. (a), — The presumption of a gift to B. is almost 
 irrebuttable. Conversely, where there is a purported 
 conveyance by deed from A. to B., but the deed is void 
 (and wholly inoperative) by reason of (e.g.) the Mort- 
 main Act, — the property simply reverts to (and revests 
 in) A., — and B. has no title to it whatever, — Scil., until 
 he acquires a title to it by long possession (6). 
 
 {p) Grey v. Grey, 2 Swanst. .594 ; Byrne's case, 1911, A. C. 386. 
 
 (q) BaWone v. Salter, L. R. 19 Eq. 2.i0. 
 
 (r) Scawin v. Seavjirt, 1. Y. & C. C. C. 65. 
 
 {«) Sepworth v. Hepwqrth, L. E. 11 Eq. 10. 
 
 \t) Garrett v. Willcinsm, 2 De G. & Sm. 244. 
 
 (u) Marshall v. Cruttwell, L. R. 20 Eq. 328. 
 
 (x) T.ye\. Sullivan, 28 Oh. D. 705. 
 
 ly) Harrey v. Hobday. 1896, 1 Ch. 137. 
 
 (2) Fou-kis V. /'ascop, L. R. 10 Ch. App. 343. 
 
 (a) Batstone V. Salter, '•tipra. 
 
 (b) Churcher y, Martin, 42 Ch. D. 312. 
 
IMPLIED AND RESULTING TRUSTS. 83 
 
 (2) Resulting Trust of Vneochcmsted Residue. — Where (2) Kesuitmg 
 a settlor (by deed or will) conveys property on trusts trust of 
 "which do not exhaust the whole, there will, in general (c), residue"^ ^ 
 — but not invariably (d), — be a resulting trust (as regards 
 the surplus) in favour of the settlor, — or (if the settlor be 
 dead) in favour of his heir (or residuary devisee) and 
 next of kin (or residuary legatee): And this rule is 
 applicable also to co-settlors, equally as to a single 
 settlor (e), — ^although if the co-settlors are unusually 
 numerous, the presumption of a resulting trust in their 
 favour is weak (/) . 
 
 Where three estates, A., B., and C, were devised to 
 trustees, and the will declared trusts of one of the three 
 estates only, the other two estates were held to result to the 
 testator, — and passed to his residuary devisee (gr). And, 
 generally, although the words of the conveyance should 
 be ever so absolute, yet if the purpose of it was, from the 
 first, capable of being satisfied, — and is, in fact, after- 
 wards satisfied, — without exhausting the whole, there will, 
 — in general (h), — although not invariably (i), — be a re- 
 sulting trust of the surplus. 
 
 Where a trust is created (by deed or will) in favour 
 of an individual, who is (or who must be presumed to be) 
 alive when the deed or will first operates, there is no re- 
 sulting trust, merely because that individual dies or 
 disappears, — but his representatives will be entitled (it), 
 and not the trustee: And, generally, it is, in all cases, Devise with 
 necessary to observe the following distinction, namely, — devisee takes 
 Firstly, that where property is given simply upon trust, beueficiaily. 
 the trustee is excluded from taking beneficially; but, Devise on 
 
 J, ,, , I , . . ° 1 • j_ 1 i trust, — devisee 
 
 secondly, that where property is given subject only to a takes no 
 charge, the donee of it takes it beneficially after satisfy- benefit, 
 ing the charge, — a, devise upon trust and a devise subject 
 
 (c) Parneil v. Singston, 3 Sm. & GifE. 344. 
 
 (d) Cooke Y. Smith, 1891, A. C. 297. 
 («) Smith V. Abbott, 19(10, 2 Ch. 326. 
 {/') Carter v. Andrew, 190.i, 2 Ch. 48. 
 (g) I'atrick v. Simpson, 24 Q. B. D. 123. 
 (A) Salt v. Northampton, 1892, A. C. ]. 
 (i) Cooker. Smith, 1891, A. C. 297. 
 
 {k) In re CurUshley's TruU, 14 Ch. Div. 846. 
 
 g2 
 
84 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 to a charge being wholly different things, both in them- 
 selves, and also as regards their respective operations. 
 
 Death of 
 settlor, 
 intestate and 
 without repre- 
 sentatives. 
 
 (a) As to 
 realty, trustee 
 used to take 
 for his own 
 henefit ; 
 
 Crown, or 
 lord, now 
 entitled in all 
 ca.8es. 
 
 Where the resulting trust is under a will, and there is 
 no one in whose favour the trust can result, — That is to 
 say, no heir as to the realty; and no next of kin as to the 
 personalty, — Then (prior to the Intestates' Estates Act, 
 1884), the rule used to be, that as to the realty the trus- 
 tee (I) or legal mortgagee in fee (m) took beneficially, — 
 Sdl., because the legal estate in him excluded the crown's 
 title by escheat, — or (in the case of copyholds) the lord's 
 title by escheat (w). But, now, under and by force of the 
 Intestates' Estates Act, 1884 (o), which came into force 
 the 14th day of August, 1884, the "real estate" would 
 in all these cases now escheat to the "crown, — or (in the 
 case of copyholds) to the lord; and the Act extends to the 
 unexhausted residue of the proceeds of the sale of real 
 estate (p) ; and to money directed to be converted into 
 real estate, — such money being " equitable realty " within 
 the fourth section of the Act. Also, where lands are 
 conveyed, whether by deed (g) or by will (r), to trustees 
 in fee simple, upon trust for CD. in fee simple, — but 
 CD. is an alien, and not within the provisions of the 
 Naturalisation Act, 1870 (33 & 34 Vict. c. 14), s. 2,— 
 although the legal estate remains in the trustees, yet the 
 trust accrues to the crown (g) . 
 
 (b) As to pure And as to pure personal estate (s), including lease- 
 oro*n*o^lord^ holds {t), and capital moneys liable (under the Settled 
 takes as *!)«« ' Land Act, 1882) to be re-invested in land (m), the crown 
 vacantia. Q^y virtue of its prerogative) or the lord (by virtue of his 
 
 franchise) is entitled thereto as to bona vacantia, — Sub- 
 ject only to this, namely, that where the executor is exe- 
 
 {I) Burgess v. Wheate, 1 Eden. 177. 
 
 (m) Beale v. Symonds, 16 Beav. 406. 
 
 («) Moody V. Tenfold, 1891, 1 Ch. 258. 
 
 (o) 47 & 48 Vict. c. 71. 
 
 \p) Att.-Gen. v. Anderson, 1896, 2 Ch. 596. 
 
 (j) Sharp V. St. Sauveur, L. K. 7 Ch. App. 351. 
 
 {r) Barrow v. Wadkin, 24 Beav. 1. 
 
 (s) In re Gasman, 16 Ch. Div. 67. 
 
 {t) Middleton v. Spicer, 1 Bro. C. C. 201. 
 
 («) Banes V. Att.-Gm., 1901, 1 Ch. 15. 
 
IMPLIED AND RESULTING TRUSTS. oO 
 
 cutor simply (and is not also a trustee), then the executor 
 still takes beneficially the unexhausted residue (x) . 
 
 However, in all these oases, whether the crown or the in all cases, 
 lord is entitled, and whether to the real {y) or to the the debts, 
 personal {z) ©state, — or whether the executor is entitled <=°8*s> *". 
 to the personal estate, — In every case, the title taken, 
 is taken subject to the debts of the deceased being first 
 paid out of tlie property taken, and to all the " testa- 
 mentary expenses " (including the estate duty) being also 
 first paid thereout. 
 
 (3) Executors as Trustees of Residue. — Where a (3) Bseoyitors 
 testator made no express disposition of the residue of his posed of resi- 
 personal estate, the executors used to be entitled to it, — iw^f ly 
 subject only to the debts being paid. But an intention c. 40,— now 
 to exclude the executors might appear on the will; and repStnta- 
 such intention would be inferred where an express legacy tives of 
 was g^ven to them, — or (in the case of two or more execu- ^''^^^^ • 
 tors) if equal legacies were expressly given to both or 
 
 all of them {a). And the statute 1 Will. IV. c. 40 has 
 now enacted, that (as to wills made after the 1st Septem- 
 ber, 1830) the executors shall be deemed to be trustees 
 for the persons (if any) who would be entitled (under 
 the Statutes of Distribution) in respect of any residue 
 not effectually disposed of by the will, — Unless it shall 
 appear by the will itself, that the executors are intended 
 to take such residue beneficially, — The effect of the statute 
 being, to put upon the executors the onus of proving, 
 that the testator intended them to take beneficially {as 
 against, or in exclusion of, the next of Mn{b)). But 
 if, in such a case, it should happen that there are no next 
 of kin, the 1 Will. IV. c. 40, will be inapplicable, — So 
 that (in such a case) the executor will (as against the 
 crown) continue to be beneficially entitled to the unex- 
 hausted residue (c) . 
 
 (4) Resulting Trusts under the Doctrine of Conve)'- (*) Besuiting 
 sion. — These are considered in Chapter IX., infra. thedoctiine 
 
 of conversion. 
 
 (x) Camp V. Coe, 31 Ch. Div. 460. 
 {i/) Bowles V. Si/att, 38 Ch. J). 609. 
 (z) Megit v. Johnson, 2 Doug. 542. 
 
 (a) Att.-Gen. v. Jeferys, 1908, A. C. 411. 
 
 (b) Morrison v. Barrison, 2 H. & M. 237. 
 
 (c) In re Lacy, 1899, 2 Ch. 149. 
 
86 
 
 THE' ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (S) Implied 
 trusts arising 
 out of joint 
 tenEmcies. 
 
 Slight circum- 
 Btances defeat 
 surviTorship 
 in equity. 
 
 (5) Resulting Trusts in the Case of Joint Tenancies. 
 — Where two or inore persons purchase lands, and advance 
 the money in equal shares, and the conveyance is taken 
 to them and their heirs, they will be joint tenants both 
 at law and in equity ; and (upon the death of one of them) 
 the estate will go to the survivor, — Soil., unless there has 
 been a severance of the jointure in the meantime (cZ) . 
 But equity, it will be remembered, always leans strongly 
 against joint tenancy (with its one-sided incident of sur- 
 vivorship): Therefore, firstly, where two or more per- 
 sons purchase lands and advance the purchase-moneys in 
 unequal proportions, and this appears on the deed itself, 
 the survivor will be deemed in equity a trustee for the 
 other, in proportion to the sum advanced by him (e) . 
 And, secondly, where money is advanced by way of loan, 
 either in eqUrUl or unequal shares, there will in equity 
 be no survivorship, — ^although the mortgage should be 
 joint (/); and if the mortgagees should afterwards pur- 
 chase the equity of redemption, they will hold it as tenants 
 in common, even although it should have been conveyed 
 to them jointly (g). 
 
 And the same rule is applicable, generally, to joint 
 purchases by partners in trade, — this being in further- 
 ance of the common law maxim. Jus accrescendi inter 
 mercatores pro beneficio commercii locum non habet : But 
 lands which have been devised in joint tenancy to part- 
 ners will continue to belong to the partners in joint 
 tenancy, both at law and in equity (h), — Soil., unless 
 where an intention to the contrary can be inferred from 
 their subsequent mod© of dealing with the land, — as if, 
 in their yearly aooounts, they have consistently treated 
 the devised land as as.sets of the partnership (i) . And 
 similarly, there will be no survivorship in the case of 
 partners who are joint patentees (Jc). 
 
 [d) Palmer v. Mich, 1897, 1 Oh. 134. 
 
 (e) Lake v. Craddoch, 3 P. Wms. 157. 
 (/) MorUy v. Bird, 3 Ves. 631. 
 
 Q) Aveling v. Knipe, 19 Ves. 440. 
 
 (A) Balmain t. Shore, 9 Ves. 500. 
 
 (t) Waterer v. Waterer, L. E. 15 Eq. 402. 
 
 (k) 7 Edw. VII. o. 28, s. 1 ; and c. 29, ». 37. 
 
87 
 
 CHAPTER V. 
 
 CONSTEUCTIVE TETJSTS. 
 
 A CONSTEUCTIVE trust is a trust raised by construction 
 of equity, without reference to (and irrespectively of) 
 any intention of the parties; and there are the five fol- 
 lowing principal varieties of it, viz.: — 
 
 (1) The Vendor's Lien on Land. — This lien is for the (i) Lien on 
 amount of the unpaid purchase-money of the land sold; ,*".J° '~ 
 and although that purchase-money should purport, upan lieuforun" 
 the face of the purchase-deed and even by the receipt paid puxchase- 
 indorsed thereon, to have been paid, yet if the money (or 
 part of it) has not been paid in fact, a lien shall prevail 
 for the money which remains unpaid (a) : Which lien, 
 although it is a charge in equity only, is (for all purposes) 
 real estate (&), and may be enforced and realised accord- 
 ingly. 
 
 The lien may, of course, be waived; but a mere per- Waiver or 
 sonal security for the unpaid purchase-money (e.g., a ofifen°— what 
 bond (c), or a bill of exchange or a promissory note (d), ]«, and what 
 or a mere ledger-entry of payment (e)), — or the granting 
 of an annuity secured by bond or covenant (/), — will not, 
 of itself, be sufficient to discharge the lien. But if the 
 circumstances show an intention, to look merely to the 
 personal credit of the purchaser, — as if it appears, that 
 the note, bond, entry, covenant, or annuity was substi- 
 tuted for the consideration-money (g), — or was, in fact, 
 
 13 not. 
 
 (a) Machreth v. Symmons, 15 Vea. 328. 
 
 (b) Maddison v. Chapman, 1 J. & H. 470. 
 
 (c) CiM'Hsv. Coriins, 31 Beav. 346. 
 
 (d) Hughen v. Kearney, 1 Seh. & Lefr. 135. 
 («) Wrout T. Dawes, 25 Beav. 369. 
 
 ■/) Clarhe v. Royle, 3 Sim. 499. 
 ') Fawell V. Seelis, 2 Diok. 485. 
 
88 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 the consideration bargained for, — The lien will be gone; 
 and the vendor's remedy will (in that case) be on the note, 
 bond, entry, or covenant only {h), and wiU not be by 
 suit in equity to enforce or to realise his lien {%) . But 
 where the purchase-money assumee the form of an an- 
 nuity, the presumption rather is against the lien con- 
 tinuing Qi) ; and the lien will not continue where, for 
 example, the intention was, that the vendor should receive 
 payment out of the sale-prooeeds to be received by the 
 purchaser (on his re-sale of the property), or out of 
 moneys to be raised by the purchaser on his mortgage of 
 the property, — the intention of maJcing such a re-sale or 
 such a mortgage being incompatible with the continued 
 existence of the lien (Z). 
 
 Against whom The vendor's lien binds the estate in the hands of the 
 is not loliowing individuals, namely: — 
 
 (1) The purchaser himself, and his heirs, and all per- 
 
 sons taking under him or them as volunteers; 
 
 (2) Subsequent purchasers for valuable consideration, 
 
 who buy ivith notice of the purchase-money re- 
 maining unpaid (m) ; and 
 
 (3) The assignee {i.e., trustee) in bankruptcy of the 
 
 purchaser, — ^for such assignee or trustee takes 
 subject to all the equities affecting the bank- 
 rupt (?2); Also, 
 
 (4) Where the first purchaser has sold the estate to 
 
 a bond fide second purchaser without notice, if 
 and so long as the second purchase-money (or 
 part thereof) has not yet been paid, the original 
 vendor may proceed either against the estate for 
 his lien, or against the second unpaid purchase- 
 money, — For (in such a case) the second pur- 
 chaser, not having yet paid his full purchase- 
 money, becomes, on getting notice of the lien 
 before he pays it, a purchaser ivith notice (to 
 
 (A) B>/cMandv. Foc/cncU, 13 Sim. 406. 
 
 (i) Mves V. Nives, 15 Ch. DiT. 649. 
 
 {It) Dixon V. Gat/fere, 1 De G-. & J. 656. 
 
 (I) In re BrenUoooA Brick Co., 4 Ch. D. 662. 
 
 Im) Morris v. Chamben, 29 Beav. 246. 
 
 \n) Ex parte Oolding, In re Knight, 13 Ch. Div. 628. 
 
CONSTKUCTIVE TRUSTS. 89 
 
 the extent that his purchase-money is unpaid), 
 — and so becomes (in effect) a trustee for the 
 original vendor, for the purpose of securing pay- 
 ment to him of the unpaid portion of the original 
 purchase-money (o). And the law is the same 
 where a bond has been given for the unpaid 
 balance of the purchase-money (p): Also, 
 (5) If the legal estate be outstanding, the second pur- 
 chaser for value (whether with or without notice) 
 has only an equitable interest, — and will there- 
 fore, in general, be postponed to the equitable 
 lien, — For, " Qui prior est tempore potior est 
 jure." 
 
 The lien will, of course, not prevail against a bond 
 fide second purchaser for valuable consideration without 
 notice, who obtains the legal estate, — Scil., because 
 "Where the equities are pqual, the law shall prevail." 
 A vendor may also find his lien postponed through his 
 own negligence; for in Rice v. Rice, as was mentioned 
 on p. 10, supra, the defendants (the equitable mortgagees), 
 although having only an equity, were held entitled 
 (although posterior in date) to payment out of the estate 
 in priority to the vendor, — on the ground of the negligenoe 
 of that vendor. Moreover, a vendor's lien will, occa- 
 sionally, be discharged and extinguished, by the Statutes 
 of Limitation (q). And it has now been provided, gene- Conveyancing 
 rally, by the Conveyancing Act, 1881 (r), s. 55, that (so ^"^^1^7,, 
 far as regards a purchaser who subsequently buys an estate as to vendor's 
 that remains subjeet to the lien of a previous vendor for ^'®"' 
 his unpaid purchase-money) the acknowledgment in the 
 body of the deed of the purchase-money having been paid, 
 or the receipt for it on the back of the deed, — the acknow- 
 ledgment or receipt being duly executed, and being in 
 or on a deed executed after the 31st December, 1881, — 
 shall protect him (being a bond fide purchaser) against 
 suoh lien; .and the term "purchaser" includes (for this 
 purpose) a subsequent mortgagee, — and also his sub- 
 mortgagee. 
 
 (o) Fawell v. KeiUs, Amb. 724. 
 
 \p) Tounille v. Naish, 8 P. Wms. 306. 
 
 {q) Toft V. Stephenson, 5 De G. M. & G. 735. 
 
 (»•) 44 & 4.5 Viot. c. 41. 
 
90 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (b) Vendee's 
 lien for pur- 
 chase-money, 
 — paid in 
 whole or in 
 part. 
 
 Begistration 
 of vendor's 
 lieu, — none in 
 Middlesex ; 
 
 Sees, — in 
 Yorkshire. 
 
 (lb) The Vendee's Lien on Land. — Somewhat analogous 
 to the lien of the vendor for his unpaid purchase-money, 
 is the lien of the vendee upon the estate in the hands of 
 the vendor for any instalment of his purohase-money 
 already actually paid (s), — Scil., where the purchase 
 (through no fault of the purchaser) goes off: And this 
 lien of the purchaser will exist, not only as against the 
 vendor, but also as against a subsequent mortgagee with 
 notice (t), — and in fact, generally, against all the like 
 persons above enumerated, against whom the vendor's lien 
 would prevail; and it extends also to include interest on 
 the instalment or deposit paid, and all the costs and ex- 
 penses (thrown away) of the purchaser. But the pur- 
 chaser's lien will not, of course, prevail against a prior 
 mortgagee (whether legal or equitable). Also, note, that 
 the lien of the unpaid vendor (or, semble, of the paying 
 purchaser) holds good also upon a sale (or purchase) of 
 chattels (m), — at least, of specific chattels (such as a ship 
 in the course of building), — Scil., where the contract is 
 specifically enforceable (x); and it holds good also as to 
 leaseholds (y) ; and as to the profits from patent-rights (z), 
 and the like. 
 
 As regards lands in a Register County, — No provision 
 exists for the registry of a vendor's lien on lands in 
 Middlesex; and therefore the lien on lands in Middlesex, 
 although it is unregistered, holds good (a). But as re- 
 gards lands in Yorkshire (not being, of course, lands of 
 copyhold tenure), it has now been provided, by the York- 
 shire Registries Act, 1884 (h), s. 7, as regards any lien 
 arising on or after 1st January, 1885, that a memorandum 
 of such lien not only may, but must, be registered, — 
 for that no such lien shall (unless and until a memo- 
 randum of it is registered) have any priority as against 
 any purchase deed (or mortgage deed) duly registered; 
 but the Act makes, of course, an exception in the case of 
 
 (s) Turner T. Marriott, L. R. 3 Eq. 744. 
 
 (t) WaUon V. Hose, 10 H. L. Ca. 672 ; Whitbread v. Watt, 1902, 1 Ch. 
 835. 
 
 (m) Collins V. Collins, 31 Beav. 346. 
 
 {x) Stucley v. Kektwieh, 1906, 1 Ch. 67. 
 
 {y) Dmies v. Thomas, 1900, 2 Ch. 462. 
 
 (z) Bmisk V. Snell, 1908, 2 Ch. 127. 
 
 (a) EeitlemllT!. Watson, 26 Ch. D. 501. 
 
 \b) 47 & 48 Vict. c. 54, amended by- 48 & 49 Vict. oc. 4, 26. 
 
CONSTEUCTIVE TRUSTS. 91 
 
 fraud, — Scil., fraud actual (c), and not merely con- 
 structive {d) . 
 
 (2) Renewal of Lease by Fiduciary Lessee. — Upon the ^j^g^™^""^ 
 renewal of a lease by a trustee or executor, although in trustee in hiii 
 his own name and professedly for his own benefit, — and own name; 
 even upon the refusal of the lessor to grant a new lease 
 to the cestui que trustee), — the renewed lease shall be 
 held upon trust for the peTSons entitled to the old lease (/), 
 — and that, whether the lease is a renewable lease or is 
 not a renewable lease (gf). And this rule is applicable or by tenant 
 also (but as regards renewable leases only, and not also °^ ^' 
 ordinary leases (h)) to persons having limited interests 
 in the lease: Therefore, a tenant for life, who renews 
 the lease in his own name, will (subject to his own life 
 interest therein) be a trustee of the renewed lease for 
 those entitled in remainder (i) ; and the rule is applic- 
 able (but as regards renewable, leases only, and not also 
 ordinary leases (it)), if the tenant for life purchases the 
 fee simple reversion on the lease (Z), — ^or purchases adjoin- 
 ing land under a right of pre-emption annexed to the 
 original settled land (m), — For it is but fair, that a 
 tenant for life, who gets some special benefit through 
 the advantage of his own possession, should share that 
 benefit with the remaindermen. 
 
 Also, if a partner renews a lease of the partnership or by a 
 premises on his own account, he will, in general, be a P*^"®"^- 
 trustee of it for the firm (w): And the like rule applies 
 to a mortgagor (o), and to a mortgagee (p), renewing a 
 lease of the mortgaged premises: And the rule applies, 
 generally, to all persons occupying fiduciary or quasi- 
 
 (c) Battison v. jffobson, 1896, 2 Ch. 403. 
 
 (d) Native Lands ease, 1905, A. C. 176. 
 
 (e) Keieh v. Sandford, Cha. Ca. 61. 
 
 (/) Filgrem v. Pilgrem, 18 Ch. Div. 93. 
 
 [g) Randall v. Emsell, 3 Mer. 190. 
 
 (h) Beian v. Webb, 190.5, 1 Ch. 620. 
 
 (i) In re Lord Sanelagh's mil, 26 Ch. Div. 590. 
 
 (i) Bevan v. Webb, aupra. 
 
 (l) rhillips T. Fhillips, 29 Ch. Div. 673. 
 
 [m) Eoaley v. Ginnever, 1897, 2 Ch 503. 
 
 (n) Clegg v. Fishwie/e, 1 Mac. & G. 394. 
 
 (o) Leijfh V. Burnett, 29 Ch. Div. 231. 
 
 Ip) Holt V. Holt, 1 Ch. Ca. 190. 
 
92 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Settled Land 
 Act, 1882,— 
 tenant for life 
 under. 
 
 fiduciary relations (g). Also, by the Settled Land Act, 
 1882 (r), s. 53, a tenant for life, in exercising any power 
 under the Act, is to have regard to the interests of all 
 parties entitled under the settlement, — and is to be deemed 
 in the position of a trustee for those parties: And, accord- 
 ingly, he is (as regards, e.g., the exercise of his dis- 
 cretionary powers) restrainable by the Court, exactly as 
 a trustee would be (s) ; and he may not sell at an under- 
 value, — being a conscious undervalue (t); and, in the exer- 
 cise of his statutory powers, he may not lease or sell to 
 hirnself (u), — ^although, in the exercise of an express power 
 of leasing (or of selling), he might (possibly) have leased 
 (or sold) to himself (x) . 
 
 Co-tenants, — 
 case of. 
 
 But, nota bene, one of a group of next of kin, whose 
 intestate was entitled to a lease (even, semble, a renewable 
 lease), may keep for his own benefit any new lease which 
 he may obtain of the demised premises (y); and one of 
 several joint tenants is (apparently) no longer to be 
 deemed in a fiduciary relation towards his co-tenants (z), 
 — although the contrary used always to be supposed (a), 
 — Soil., as regards only renewable leases. 
 
 (3) Allowance 
 for payments, 
 where same 
 are necessary 
 and perma- 
 nently bene- 
 ficial. 
 
 (3) Allowance for Permanent Improvements. — Where 
 a person is only part owner of an estate (or where he 
 erroneously supposes himself to be the fee simple owner 
 of it), and he (in entire good faith) permanently benefits 
 the estate by repairs or improvements, — The rule is 
 
 (1) Firstly, that as against the true owner who is ignorant 
 of (and does not encourage him in) the expenditure, he 
 has no title to be repaid the amount expended (&); But 
 
 (2) Secondly, that if it become necessary for the true 
 owner to proceed in equity, he. will only be entitled to 
 relief in equity upon the terms of his doing equity, — i.e., 
 
 {q) Cooper v. Phibbs, L. R. 2 H. L. 149. 
 
 ()■) 45 & 46 Vict. 0. 38. 
 
 (s) Bulteel-v. Law(Jeshayne, 1906, 2 Ch. 11. 
 
 (t) ffurrell v. Littlejohk, 1904, 1 Ch. 609. 
 
 [uY Miidlemas v. Stevens, 1901, 1 Ch. 574. 
 
 \x) Sevan V. Eahgood, 1 J. & H. 222. 
 
 \y) Siss V. Biss, 1903, 2 Ch. 40. 
 
 (z) Bins V. BisSy supra. 
 
 {a) Palmer v. Young, 1 Vern. 276. 
 
 (*) NiohoUon v. Mooper, 4 My. & Cr. 186. 
 
CONSTRUCTIVE TRUSTS. 93- 
 
 by making compensation for the expenditure, — Scil., so 
 
 far as (and only so far as) the expenditure was necessary, 
 
 and has proved permanently Tbeneficial (c) . A person who 
 
 lays out money on the property of another with full 
 
 knowledge of the state of the title (d), — or who lays out 
 
 money unnecessarily or improperly, or otherwise mala 
 
 fide (e), — will, of course, have no such equity; but where 
 
 a tenant for life under a will has gone on to finish improvements 
 
 improvements begun by the testator, equity says, that by tenant for 
 
 (in respect of his expenditure) he is entitled to a ' 
 
 charge (/), or lien (g), — and directs an inquiry, for the 
 
 purpose of ascertaining whether the outlay has been for 
 
 the benefit of the inheritance (h), — Scil., the permanent 
 
 benefit of the estate, aa .distinguished from outlays on 
 
 ordinary "repairs" (i). 
 
 By reason of the Improvement of Land Act, 1864 (k), Under 
 and other subsequent Acts in pari materia (such as, e.g., Jf'^and Ac"* 
 the Agricultural Holdings Act, 1908 (I)), a tenant for 1864; 
 life, instead of expending his own money in improve- 
 ments, now expends money borrowed from some Land 
 Loan Society for the -purpose; and the Acts make the 
 repayment of the moneys a charge upon the lands im- 
 proved, repayable by yearly instalments by the successive 
 tenants for the time being, — the instalments (which used 
 to extend, in general, over twenty-five years only) now 
 extending over any period (not exceeding forty years) 
 which the Board of Agriculture and Fisheries may 
 sanction (to). Also, by the Settled Land Act, 1882 (w), or under 
 s. 21, capital money arising under the Act may (subject ^^j. igg2_ 
 as therein expressed) be applied in payment of any 
 improvement authorised by the Act; and the classes of 
 improvements thereby authorised are those specified iu 
 s. 25 of the Act. But where such an application of the 
 
 (c) In re CooVh Mortgage, 1896, 1 Oh. 923. 
 
 [A) Ramsden v. Sysoyi, L. E. 1 H. L. 129. 
 
 (e) Pole T. Pole, 2 De G-. & Sm. 420. 
 
 (/) Dent V. Dent, 30 Beav. 363.' 
 
 (y) In re Montagu, 1897, 2 Ch. 8. 
 
 (A) In re Leigh's Estate, L. R. 6 Ch. App. 887. 
 
 (i) In re Willis, 1902, 1 Ch. 15. 
 
 (A) 27 & 28 Vict. u. 114, amended by 62 & 63 Vict. e. 46. 
 
 (?) 8 Edw. VII. e. 28. 
 
 (m) 62 & 63 Viet. u. 46. 
 
 (») 45 & 46 Vict. u. 38. 
 
9*4 
 
 THE OBIGINALLY EXCLUSIVE JURISDICTION. 
 
 money is intended to be mad© by a tenant for life, he 
 ought, in general, to first submit a scheme for the execu- 
 tion of the improvements to the trustees of the settlement, 
 or else to the Court (o); but while he acts with bona fides, 
 he has a large discretion (p) . 
 
 Trustee has a 
 lien on trust 
 fund for 
 expenses of 
 renewal. 
 
 Salvage pay- 
 ments gene- 
 rally, — lien 
 for. 
 
 charges,— 
 receivers. 
 
 of 
 
 A trustee or executor (or other fiduciary person), who 
 renews a lease, has a lien upon the estate for the costs and 
 expenses of the renewal with interest; and he may either 
 pay himself such costs and expenses out of any free 
 moneys in his hands, or he may raise the same by a 
 mortgage of the trust estate {q), — the lien being confined, 
 of course, to the trust estate {r) . Also, generally, where 
 payments have been made, in the nature of salvage, in 
 order to prevent {&■§■) the lapse of a policy of life assur- 
 ance, the person making such payments (not being a mere 
 volunteer) is entitled to a lien on {e.g.) the proceeds of 
 the policy for the amount of his payments (s), — but not 
 so as to have priority (like in the case of a true salvage 
 lien) over a mortgagee of the policy {t) . Also, a charge 
 given by the receiver in a debenture holder's action, — 
 Scil., for the maintenance of the debenture security, — is 
 in the nature of a salvage charge, and is valid, — and 
 (subject to the costs lawfully payable in priority) it takes 
 precedence of the debentures (m) \ and any one who (as 
 an officer of the Court) receives moneys which have been, 
 in fact, earned through the exertions of another, must 
 repay that other what in conscience is right {x) . 
 
 (4) Heir of 
 mortgagee, 
 trustee for 
 personal repre- 
 sentatives, — 
 still so, as to 
 copyholds. 
 
 (4) Heir a Trustee for Next of Kin. — When a mort- 
 gagee in fee, who has not foreclosed, dies intestate, the 
 legal estate in the mortgaged premises used to descend 
 to his heir, but as a trustee only for the personal repre- 
 sentatives of the deceased mortgagee, — for the purpose 
 of securing the due payment otthe mortgage moneys to 
 
 (o) Norfolk V. Herries, 1900, 1 Ch. 461. 
 \p) Lefroy v. JEgmont, 1906, 2 Ch. 151. 
 (q) Trustee Act, 1803 (56 & 57 Vict. c. 53), s. 19. 
 (j) In re Winchdsea' s Policy Moneys, 39 Oh. D. 168. 
 (s) Leslie v. French, 23 Ch. Div. 552; Jennings v. Mather, 1902, 
 K. B. 1. 
 
 (t) Falclce v. Scottish Imverial Insurance, 34 Ch. Div. 234. 
 
 («) Smth V. Lubhock, 1901, 2 Ch 357. 
 
 [x) In re Tyler, Ex parte 0. M., 1907, 1 K. B. 865. 
 
CONSTRUCTIVE TRUSTS. 9S 
 
 these latter, to be paid over by them to the next of kin (or 
 other the persons entitled to the personal estate) of the 
 deceased mortgagee {y) . And that was so, even where 
 the deceased intestate was in possession as mortgagee {z), 
 — and even in adverse possession {a), — 8cil., where the 
 possession of the deceased had not already (at the date 
 of his death) fully matured into the absolute and irre- 
 deemable fee simple estate (&), — although, of course, if 
 the possession of the deceased should have then already 
 so matured, his heir would be and remain entitled bene- 
 ficially himself (c) . 
 
 And now. Firstly, under the Conveyancing Act, 
 1881 {d), s. 4, the executor or administrator of the 
 deceased may himself reconvey the legal estate on pay- 
 ment of the mortgage money; and, by s. 30, that legal 
 estate now descends (under that Act) into him, whether 
 the deceased die testate or intestate, — but the old law still 
 holds good as to the legal estate in mortgaged copy- 
 holds (e). And, Secondly, under the Land Transfer Act, 
 1897 (/), all real estate (other than the legal estate in (4a) Legal re- 
 copyhold hereditaments {g)) now vests (upon the death, \ll^l^^^l^ 
 whether testate or intestate, of the beneficial fee simple December, 
 owner) in the legal personal representatives of such owner, ^^l~'f'^ 
 exactly as if it were a chattel real (s. 1), — Soil., as beneficial 
 trustees for the persons who by law are beneficially en- devisees, 
 titled thereto (s. 2). And, exactly like executors may 
 do as regards bequests of leaseholds, so these representa- 
 tives may assent to any devise of the real estate (s. 3); or 
 the devisee himself may enforce a conveyance thereof to 
 him from them (ss. 2, 3) Qi). But, nota bene, all the 
 executors (as well the proving executors as also the exe- 
 cutors who have not yet proved) are the persons in whom 
 the real estate so vests {i). Also, it is the general execu- 
 te) Thornbrmgh v. Baker, 1 Ch. Ca. 283, 1046. 
 
 (z) ^''ol/ V. Elks. 2 Ch. Ca. 2-'0. 
 
 (a) Iirayton v. Loveridge, 1902, 2 Ch. 859. 
 
 (i) Clarkson t. Bowyer, 2 Vern. 61. 
 
 (c) Pearce v. Mirsh, 1904, 1 Ch. 518. 
 
 {d) 44 & 45 Vict. c. 41, a. 30. 
 
 (e) Copyhold Act, 1894 (57 & 58 Vict. o. 46), o. 88. 
 
 (/) 60 & 61 Vict. 65. 
 
 (?) In re Stmerville and Turner, 1903, 2 Ch. 583. 
 
 (A) In re Gary and Lott, 19(11, 2 Ch. 463. 
 
 (i) In re JPawley and L. ^ P. Bank, 1900, 1 Ch. 58. 
 
THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (5) Surplus 
 sale proceeds, 
 — on a sale by 
 mortgagee 
 
 Equity's 
 manner of 
 oonstructitir/ 
 trusts, ex- 
 plained. 
 
 tors (as distinguished from the special executors, if any) 
 who are to give the assent or to execute the con- 
 veyance (/c) . 
 
 And here note, that by legal estate in copyholds it is 
 intended to denote that the deceased (testate or intestate) 
 was the "tencmt" on the Court rolls at the date of his 
 death; and if he was not then the admitted tenant, — but 
 was merely an unadmitted surrenderee or devisee himself, 
 or had the equitable estate only (or the incomplete legal 
 estate only) in the copyholds, — ^then the Conveyancing 
 Act, 1881, s. 30, equally with the Land Transfer Act, 
 1897, s. 1, would be fuUy applicable; and the copyholds 
 of the mortgagee (or trustee) would in that case descend 
 into the legal personal representatives of the deceased (I), 
 semble : 
 
 (5) Solicitor of Selling Mortgagee, receiving the Sur- 
 plus Sale Proceeds. — If a mortgagee, in the due exercise 
 of his power of sale, sells the mortgaged hereditaments, 
 and there is a "surplus" of the sale-proceeds, he becomes 
 a trustee (although a constructive trustee only) of that 
 surplus : and if the solicitor (who is acting for the selling 
 mortgagee) receives (and retains) any part of the surplus 
 sale-proceeds, he (the solicitor) thereby becomes also 
 chargeable as a constructive trustee of the surplus sale- 
 moneys so received and retained by him, — So that ,the 
 legal personal representative of the mortgagor (in oaee 
 of the mortgagor's death) would be entitled to recover 
 these surplus sale-moneys from the solicitor, — or from 
 his estate, if he should be since dead (m) . 
 
 The constructive trusts above exemplified are con- 
 structed by a Court of Equity on the foundation of the 
 legal estate, equity building up, — that is, constructing, 
 — on that foundation, and in the due exercise of its judi- 
 cial discretion (w), the trust for which it perceives an 
 equity. 
 
 (k) Cohen's Executors' case, 1902, 1 Oh. 187. 
 
 [l) In re Somervillit and Tnrner, supra. 
 
 (m) Lake v. Bell, 34 Ch. D. 462. 
 
 («) Cowper V. Cowper, 2 P. Wma. 720, on pp. 753, 764. 
 
97 
 
 CHAPTER VI. 
 
 TRUSTEES AND OTHERS STANDING IN A FIDUCIARY 
 RELATION. 
 
 A TRUSTEE should be a person capable not only of taking "^^o may fce 
 but also of holding the. legal estate, and should be of -who should, or 
 good natural capacity also. Therefore: — Aoidd not, be 
 
 Trustees. 
 
 Firstly, an infant is unsuitable as a trustee, — either 
 of lands or of goods (a) . 
 
 Secondly, A corporation (which, by the way, cannot be 
 "seised to a use at all" (6)), is unsuitable as a trustee of 
 lands (c), — although suitable enough as a trustee of goods. 
 A corporation may also, now, be a co-trustee of goods (d), 
 — and where it can hold land without any licence in mort- 
 main, even of lands (e). And, nota bene, the public- 
 trustee, constituted under the provisions of the statute 
 6 Edw. VII. c. 55, is a corporation. 
 
 Thirdly, A married woman used to be unsuitable as a 
 trustee (/), — Scil., because of the legal unity of husband 
 and wife (g) ; but an unmarried female, whether widow or 
 spinster, was free from objection, — assuming always that 
 she was a woman of practical common sense; and simi- 
 larly, now, even a married woman, semble (h) . 
 
 And, Fourthly, Any alien, although being and remain- 
 ing an alien, is now as capable as a native-born subject, 
 even as regards real estate (i), — differently from what used 
 
 (a) Hearle t. Greenlanh, 3 Atk. 712. 
 
 (*) ChalUs, K. P., 2nd ed., pp. 354, 355. 
 
 (c) Att.-Gen. v. St. John's Hospital, 2 De Gr. J. & Sm. 621. 
 
 ((?) 62 & 63 Vict. 0. 20. 
 
 (e) Thompson v. Alexander, 1905, 1 Ch. 229. 
 
 (/) Lake v. De Lambert, 4 Ves. 595. 
 
 {g) In re Harkness and Alkopp, 1896, 2 Ch. 358. 
 
 (A) 7 Edw. VII. c. 18, s. 1. 
 
 (i) 33 & 34 Vict. c. 14, s. 3. 
 
 H. 
 
S8 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 to be the case (fc) . But, nota bene, an alien (or anyone 
 usually resident out of the jurisdiction) is not a desir- 
 able or convenient trustee. 
 
 Equity never 
 ■wants a 
 trustee. 
 
 Wherever a trust exists, and there is no trustee to exe- 
 cute it, equity decrees him a trustee in whom the legal 
 estate is, — the want of a trustee not affecting the bene- 
 ficial interest: Therefore, where property has been be- 
 queathed in trust without the appointment of any ex- 
 press trustee, — If it is personal estate, the personal repre- 
 sentative is deemed the trustee; and if it is real estate, 
 the heir or devisee would have been, — and now, under the 
 Land Transfer Act, 1897 (l), the legal personal repre- 
 sentative will be, — the trustee. Also, where there is no 
 executor (or the executor becomes incapable), the Court 
 may appoint a trustee to discharge the duties of the exe- 
 cutor {being duties which the executor ivould as a trus- 
 tee execute (m)), — but, more usually, a legal personal repre- 
 sentative will (in such a case) be constituted by the Pro- 
 bate Division (w) . Also, under the provisions of the 
 Judicial Trustees Act, 1896 (o), and the rules of August, 
 1897, made under that Act, the Court may, in its discre- 
 tion (p), appoint the official solicitor of the Court (or 
 some other person (q)), to be a judicial trustee, — and that 
 either alone or jointly with any existing trustee, or exe- 
 cutor or administrator. 
 
 Disclaimer by Where real estate (or, in fact, any property Avhatever) 
 ■ea?ctof'"~ '^^ conveyed by deed to A.B., as a trustee upon specified 
 -when the trust trusts, — and A.B. disclaims the estate by express deed 
 IS by deed. ^j disclaimer (his acceptance of the estate being, in the 
 absence of an express disclaimer, assumed (r)), — In such 
 a case, the real estate remains in (or results or reverts 
 
 (k) Fish T. Klein, 2 Mer. 431. 
 
 {[} 60 & 61 Vict. 0. 65. 
 
 (m) In re Moore, 21 Ch. Div. 778. 
 
 («) Se Bradley, 8 Prob. D. 215 ; Re Prysse, 1904, P. 301 ; Re Edith 
 Mary French, 1910, P. 169. 
 
 (o) 59 & 60 Viot. e. 35. 
 
 \p) In re Ratclif. 1898, 2 Ch. 352. 
 
 ((?) Douglas v. Bolam, 1900, 2 Ch. 749. 
 
 [r) London and County Bank v. River Plate Bank, 21 Q. B. D. 535, on 
 p. 641. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. ' 99 
 
 to) the settlor who conveyed it; and he (the settlor) holds 
 it as a trustee and upon the specified trusts, exactly as 
 A.B. would have done, if he had accepted the estate (s). 
 And similarly, where the trust is created by will, and the 
 devisee-trustee disclaims, the heir-at-law would, of course, 
 take the devised estate, — and become the trustee thereof: 
 And, semble, the disclaimer need not be (although it 
 usually is) by deed, — but may be in pais (t). 
 
 A trustee must observe all the rules of equity, relative in what sense 
 to trustees, — and he departs therefrom at his own parti- the servaTt^ 
 cular peril. But (subject to that) the trustee is a servant and in what 
 to his cestuis que trustent ; and any cestui que trust may ^^^i^er^of'his 
 assign his beneficial interest without the consent of the cestui que 
 trustee (m); and a majority of the cestuis que trustent *''""^' 
 may (x), — and, in a proper case, a minority even may (y), 
 — demand back the trust money from the trustee. And 
 a cestui que trust, although entitled for a limited in- 
 terest only {e.g., as tenant for life only), may (under 
 certain restrictions) insist upon being let into the pos- 
 session of the trust property (z), — but he will not, as a 
 general rule, be given the custody also of the title-deeds, 
 there being a danger in that. Also, the cestuis que 
 trustent (or any one or more of them) may compel the 
 trustee to the execution of any particular duty; and if 
 {e.g.) a cestui que trust has reason to suppose, that the 
 trustee is about to do an act not authorised by the trust, 
 he may have an injunction to restrain him («). 
 
 The Court exercises, as regards all trustees, a e-eneral Ti'ustees,— 
 controlling influence over them, — even in respect of their —when and ' 
 discretionary powers (6): For example, where the plain- ?°7i *|'l'^°2," 
 tiff sought to restrain the trustees of certain settled estates Court. ^ 
 (of which he was the tenant for life) from raising a sum 
 of £30,000 by sale or mortgage, and contended that they 
 should raise the sum by timber-cuttings (the trustees 
 
 (s) Mallott V. Wihon, 1903. 2 Ch. 494. 
 (i) Birchall v. Ashton, 40 Ch. D. 436. 
 (k) Donaldson v. Dotialdson, Kay, 711. 
 (x) Wilsons. Ohurch, 13 Ch. Div. 1. 
 (y) ColUngham v. Shp-r, 1893, 2 Ch. 96. 
 {£) West V. Wythes, 18H3, 2 Ch. 369. 
 (a) Balk t. Strutt, 1 Hare, 146. 
 \b) Tempest v. Lord Camoys, 21 Ch. D. 671. 
 
 11 2 
 
100 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 having it in their discretion to raise the amount in either 
 of these two ways), — The Court said, that the trustees 
 must exercise their discretion in the way which should 
 affect the successive limited owners in the least preju- 
 dicial way (o) . 
 
 Eelease of A trustee who has accepted the trust cannot afterwards 
 
 modeTof" renounce it; and an executor-trustee, by proving the will, 
 formerly and is deemed to have accepted the trusts of the will {d) : A 
 now,. trustee may, however, obtain a release from the trustee- 
 
 ship; and as regards that matter, the mode in whioh a 
 trustee formerly obtained his release was either under an 
 order of the Court, — Soil., where there was no express 
 power to release him in the instrument creating the trust; 
 or else all the parties interested must have executed the 
 release (e). But now, under the Trustee Aot, 1893, s. 11 
 (repeating the like provision contained in the Convey- 
 ancing Act, 1881, s. 32), a trustee may by deed retire 
 from the trust, — provided two trustees remain, and pro- 
 vided these two trustees and the person (if any) entitled 
 to appoint new trustees express their consent to his retire- 
 ment; and, under the Judicial Trustees Act, 1896, and 
 and in the case Rule 23 of the rules made under that Act, a judicial 
 tniBtS"**^ trustee may retire, on giving notice to the Court of his 
 desire in that behalf. 
 
 Trustee can- 
 not delegate 
 his office, — 
 
 Save hy 
 statute, — or 
 where 
 
 (incidentally) 
 a necessity 
 for it. 
 
 The office of trustee (being one of personal confidence) 
 cannot, in general, be delegated, — trustees who take upon 
 themselves the management of property for the benefit 
 of others having no right to shift their duty in that parti- 
 cular on to other persons, — Delegattis non potest delegare. 
 A limited power of delegation, however, has now been 
 conferred on trustees (including executors and adminis- 
 trators), by the Trustee Act, 1893, s. 17, — repeating a 
 similar provision contained in the Trustee Act, 1888, 
 s. 2, — That is to say, a trustee may now depute his soli- 
 citor to receive the purchase-money of an estate sold; 
 or may depute his solicitor (or any banker) to receive 
 moneys payable under a policy of (life) assurance, — the 
 
 (c) Murker v. Kekewioh, 8 Ha. 291. 
 
 'd) MuMoiv V. Full'.r, Jac. 198. 
 
 '«) Manson v. Baillie, 2 Macq. H. L. Ca. 80. 
 
TRUSTEES STANDING IN A FIDUCIARY AlATJOM?''^ yl f/ 101 
 
 trustee remaining liable, of course, to see to 
 or safety of the purchase-moneys and of other the moneys 
 so received, — and being bound also to show diligence 
 in that (/), — iSciZ., reasonable diligence (gr) . Also, 
 trustees and executors may, of course, always justify their 
 administration of the trust fund through the instru- 
 mentality 61 others, where there is either a moral or a 
 legal necessity for so doing {Jni): Also, under exceptional 
 circumstance, when portion of the trust money ifi.g.^ has 
 been invested on the mortgage of a building estate, and 
 (in the course of the development of that estate) frequent 
 reference to the title-deeds is a necessity, — The trustee 
 may legitimately leave such title-deeds with his soli- 
 citors (^), — although he ought, in the general case, to hold 
 the title-deeds himself. 
 
 On the other hand, there can hardly be any reason Securities and 
 justifying the trustee for leaving indefinitely with his ^todv^rf"" 
 solicitors, — although he may safely enough leave with his 
 bankers (/c), — convertible securities (such as bonds) which 
 are payable to bearer; and in the case of judicial trustees, 
 the title-deeds, and all certificates and other documents 
 evidencing the title of the trustee to the trust property, 
 must be deposited either with the bank at which the trust 
 account is kept, or else with such other custodian as the 
 Court may direct (Z). But, nota bene, where there are 
 two trustees, and one of them already has the custody of 
 the title-deeds, the other may (in the general case) safely 
 leave him in the custody and possession thereof, — not hav- 
 ing, in fact, any legal right to alter that custody (m) . 
 
 Generally, the rule is, that trustees are not liable for Care to be 
 employing agents, when as prudent men of business they any delegation 
 would do so if acting on their own behalf : But that rule by trustee,— 
 is no protection to them, if they fail to exercise common 
 prudence, either in their original selection of the agent, 
 
 (/) Wyman v. Patterson, 1900, A. 0. 276. 
 
 Ig) Be Brimont v. Harvey, 1911, 1 Ch. 50. 
 
 \h) Mendes v. Guedalla, 2 J. & H. 259. 
 
 (i) FieUv. Field, 1894, 1 Ch. 425. 
 
 (k) lewis V. Wobbn, 8 Ch. Div. 591. 
 
 {I) Dent V. J)e Fothonier, 1900, 2 Ch. 529. 
 
 {m) Jones v. Trappes, 1903, 1 Ch. 262. 
 
102 
 
 THE OEIGINALLY EXCLUSIVE JURISDICTION, 
 
 security. 
 
 For example, Or in their subsequent supervision of his acts : For ex- 
 '^Son of * ^Diple, if they employ a solicitor to act as a valuer,- — or if 
 a proposed they accept their solicitor's recommendation of a valuer, 
 mortgage mtJiout Satisfying themselves (hy independent inquiry) 
 that the suggested valuer is a proper agent in that 
 behalf (n) ; or if they do not supply the agent (being a 
 valuer selected by themselves) with true a-nd sufEcient 
 particulars of the property he is appointed to value (o), — 
 or accept from him a vague general report, not showing 
 the necessary details to enable them to judge for them- 
 selves (p), — all these precautions being such as prudent 
 men of business would observe in lending their own 
 moneys on mortgage, — they will, usually, be liable for 
 the resultant loss; 
 
 Trustee Act, 
 1893,— pro- 
 visions of, as 
 to delegation 
 of duties. 
 
 That is to say, unless the provisions of the Trustee Act, 
 ' 1893, s. 8, may have altered the rules of equity in these 
 respects: But these last-mentioned provisions amount in 
 fact only to this, that the trustee shall not be liable (as 
 for a breach of trust, in respect of an investment of the 
 trust estate on an inadequate security), when " the Court 
 is satisfied," Firstly, that the trustee in making the loan 
 " was acting upon a report, as to the value of the joropercy, 
 made by a person whom the trustee reasonably believed 
 to be an able practical surveyor or valuer, instructed and 
 employed independently of any owner of the property;" 
 and, Secondly, that the amount of the loan does not exceed 
 two equal third parts of " the value of the property as 
 stated in such report;" and, Thirdly, that the loan was 
 made " under the advice of such surveyor or valuer ex- 
 pressed in such report," — The ptinciple underlying these 
 provisions being this, that if an independent valuer of 
 reputation, sufficiently instructed to make a just valua- 
 tion, will state (i.e., represent) the value as sufficient, 
 and will expressly advise the acceptance of the security, — 
 Icnowing the consequent liability ivMch he {the valuer) 
 mill thereby personally incur if his representation and 
 advice are erroneous, — the trustee may safely be taken 
 
 (k) /« re Weall, 42 Ch. Div. 674. 
 
 (o) Re Partington, 67 L. T. N. S. 654. 
 
 (p) Whitelcy v. learoyd, 12 App. Ca. 727. 
 
TKTJSTEES STANDING IN A FIDUCIARY RELATION. tOS: 
 
 to have done all that his duty, in this particular re- 
 quires {q). 
 
 If trustees take the same care of the trust property that The oai-e ana 
 a man of ordinary prudence would take of his own, they requS^of 
 will not be liable for any accidental loss, — whether by a trusteea, 
 robbery of the property while in their own possession {r) ; ^ regards,,— 
 or by a robbery of the property while in the possession of 
 others with whom it has {in the ordinary course of busi- 
 ness) been entrusted (s); or by a depreciation in the value 
 of the securities upon which the trust funds have been 
 rightfully invested (t). But, in fact, in determining the 
 liability or non-liability of a trustee for any loss sustained 
 by the trust estate, the Court distinguishes between, 
 Firstly, the duties imposed upon him, and, Secondly, the 
 discretions vested in him, as a trustee. 
 
 And, Firstly, as regards his Duties, — The utmost dili- (a) Duties; 
 gence in observing same {i.e., exacta diligentia) is his 
 only protection against liability for any loss; and no cir- 
 cumstance of mere hardship will excuse him {u) . There- 
 fore, if a trustee permits the trust fund to remain {e.g.) 
 in the hands of a banker (not being, in the case of a 
 judicial trustee, the banker of the trust) more than a year 
 after the testator's death, and after the debts, &o. have 
 been paid {x), — or mixes the trust property with his own, 
 or (by associating with himself the authority of another 
 person) parts with his exclusive control over the fund {y); 
 or if the fund is left to the entire control of a co- 
 trustee {z), — or be lent to such co-trustee {a), — In all 
 these cases, it will be at the trustee's risk (&). And, nota 
 bene, it is considered a breach of trust, to invest the trust 
 funds on a contributory mortgage (c) ; and it used to be 
 considered a breach of trust, to concur in a contributory 
 
 (q) Sotnerset v. Harl Fowlett, 1894, 1 Ch. 231. 
 
 (r) Morley v. Morley, 2 Ch. Ca. 2. 
 
 {«) Speight v. Gaunt, 9 App. Ca. 1. 
 
 {t) Cocks Y. Chapman, 1896, 2 Ch. 763. 
 
 (m) Caffrey v. Danby, 6 Ves. 488. 
 
 (») Sarhe v. Martyn, 1 Beav. 525. 
 
 (i/) Lupton T. White, 15 Ves. 432 ; Webb v. Jonas, 39 Ch. Div. 660. 
 
 (z) Scoiney v. Lomer, 29 Ch. Div. 535. 
 
 («) Stickney v. Sewell, 1 My. & Cr. 8. 
 
 (i) Castle t. Warland, 32 Beav. 660. 
 
 [c) Webb V. Jonas, supra. 
 
iOi THE ORIGmALLY EXCLTJSIVE JUEISDIGtION . 
 
 sale of the trust real estate (d); but, where the trust has 
 been created since the 31st December, 1881, a contributory 
 sale, if duly conducted, is now lawful enough (e) . 
 
 <b) Discra- Secondly, as regards his Discretions, — The trustee will 
 
 *'°°^ be protected from liability, if he properly exercises his 
 
 discretion, — in compromising, e.g., with an insolvent 
 tenant of a house or farm, in order to get the possession 
 of the house or farm (/) . Also, if the trustee chooses a 
 duly qualified solicitor, against whom there is no breath 
 of suspicion, the trustee will not be liable for a loss re- 
 sulting from the dishonesty of the solicitor so em- 
 ployed (g), — provided the employment be limited to work 
 proper for a solicitor to do; but the trustee would in such 
 a case be liable, if he had not exercised his discretion 
 justly in the choice of the solicitor, or if he had deputed 
 to him work not proper for a solicitor as such to do (h) . 
 
 If a trustee is authorised to invest the trust property in 
 such stocks, shares and securities as he (the trustee) shall 
 " think fit," that is an absolute discretion in appearance 
 only, and will not justify a dishonest exercise of the dis- 
 cretion (i) . Also, if a trustee (under the investment 
 clause in a will or settlement) has the power (at his dis- 
 cretion) of investing in any one or more of certain 
 specified funds, comprising good, bad and indiSerent 
 securities; and he (at the request of an importunate cestui 
 que trust) invests, — or leaves invested, — the trust funds 
 in notoriously doubtful securities (as being authorised), 
 then he will be liable, if he would not have invested (or 
 left invested) his own moneys in that class of invest- 
 ment (fc), — but otherwise he will not be liable (I). And 
 even as regards investments in authorised real securi- 
 ties (m), — including leaseholds (n), — the trustee must 
 exercise a just discretion; and if he should invest the 
 
 {d} Rede t. Oalces, i De Gr. J. & S. 505. 
 
 (e) Trustee Act, 1893, s. 13. 
 
 (/) Slue Y. Marshall, 3 P. Wms. 381. 
 
 (y) Sunt V. JBlmes, 2 De G. F. & J. 578. 
 
 (A) In re TFeall, 42 Ch. Div. 674. 
 
 (i) Smith T. Thompson, 1896, 1 Ch. 71. 
 
 (k) Knox V. Maekinnon, 13 App. Ca. 753. 
 
 [l) Smethurst v. Hastings, 30 Oh. Div. 490. 
 
 (m) Whiteley v. Learoyd, 12 App. Ca. 727. . 
 
 (m) Bulteelx. Lawdeshayne, 1906, 2 Ch. 11. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 105 
 
 trust funds in {e.g.) a freehold " brickfield" he will be 
 liable for any resultant loss. Also, if he has express power 
 to continue a loan (made, e.gr., to a partnership firm), it is 
 not a matter of course for him to continue such loan (after 
 a change in the members of the firm(o)). 
 
 Formerly, also, the amount to be lent on the security of ^^J^*^*^. 
 freehold houses was not allowed to exceed one-half the trust iuvest- 
 value of such houses, and on the security of freehold lands ments. 
 two-thirds the value of such lands (p) : But this rule has 
 been (to some extent) modified by the Trustee Act, 1893, 
 ss. 8, 9, — continuing the like provisions contained in the 
 Trustee Act, 1888, ss. 4, 5, — Whereby the limit of two- 
 thirds has been substituted as the proper limit of value 
 in the case of all kinds of property (whether lands, or 
 houses, or other property), proposed as a security for the 
 investment of trust money. But still the trustee must 
 properly exercise his discretion in such a case(g'). 
 
 The Act provides also that when the amount invested 
 exceeds the prescribed limit, the investment shall be 
 deemed an authorised one up to the limit; and accord- 
 ingly, the trustee will now be liable only for the excess (r), 
 — the law having formerly been, that the trustee was liable 
 for the entire amount, taking over the improper security 
 to himself (s), — S\cil., unless where the cestuis que trustent 
 chose to adopt the security (as they might have done {t)). 
 
 And a simple executor or administrator is a trustee 
 within the meaning of these distinctions and provisions; 
 and a judicial trustee is also within them. 
 
 Under the Judicial Trustees Act, 1896 (m), s. 3, the Belief of trus- 
 Court may, however, now relieve a trustee of all liability j^dSaf Trus- 
 for p, breach of trust (past, present, or future); but the teea Act, 1896; 
 Court will relieve the trustee, only where (and so far ^^^^c^^"^ 
 
 panies Act, 
 • 1908. 
 
 (o) TucJcer v. Tucker, 1894, 3 Cih. 429. 
 
 (p) Olive V. Westerman, 34 Ch. Div. 70. 
 
 {q) Shaw v. Gates, 1909, 1 Ch. 389. 
 
 (r) In re Lake, Ex parte Howe Trustees, 1903, 1 K. B. 439. 
 
 (s) Head V. Gould, 1898, 2 Ch. 250. 
 
 {t) Marsh v. Keating, 2 CI. & P. 230. 
 
 \tt) 69 & 60 Vict. 0. 35. 
 
106 
 
 THE ORIGINALLY •^EXCLUSIVE JURISDICTION. 
 
 as) it thinks that he has acted honestly and reasonably 
 in the matter (x), and " ought fairly to be excused" (y), 
 — but not in any other ease (z) : And an honest director 
 also is now relievable in the like case (a). 
 
 Risky invest- 
 ments, — duty 
 to call in, is 
 limited. 
 
 It is also to be remembered always, that there is no 
 positive rule of the Court, that executors or trustees must 
 (without exercising their own judgment in the matter) 
 call in their testator's mortgages (even risky ones) within 
 twelve calendar months from the death: Nor is there 
 any rule of the Court, that trustees retaining a security 
 (authorised by their trust) are liable to make good a 
 loss sustained through any fall in the value of the security, 
 — the question in every case always being, Have the 
 trustees acted honestly and prudently, and in the belief 
 that they were doing what was best for all parties? (b) 
 
 But, nota bene, a trustee (and also an executor), who 
 had permitted the bar of time to run against his right 
 to recover some specific property or asset belonging to 
 the trust estate, would meet with great difficulty in 
 getting let off that neglect or tort, — although he might, 
 in some exceptional case, be let ofi (c) ; and the like re- 
 marks apply, semble, to the after -acquired property of 
 a wife, where there is a covenant to settle it (d) . 
 
 No remunera- 
 tion allowed 
 to trustee. 
 
 Trustees or executors are entitled to no allowance for 
 their care and trouble, — and are not permitted to profit 
 by the trust, either directly or indirectly (e) ; and so strict 
 is this rule, that although a trustee or executor may (by 
 the direction of the author of the trust) have carried on 
 a business at a great sacrifice of time, he will be allowed 
 nothing as compensation for his personal trouble or loss 
 
 [x] Clews V. Grindey, 1898, 2 Ch. 503. 
 
 \y) Oriessemmin v. Carr, 1911, 1 Ch. 300; Palmer v. Emerson, 1911, 
 1 Ch. 758. 
 
 («) Davis V. StUchings, 1907, 1 Ch. 356. 
 
 (a) 8 Edw. VII. u. 69, s. 279, repeating 7 Edw. VII. c. 50 s. 32. 
 
 (b) Coeks V. Chapman, 1896, 2 Ch. 763. 
 
 (c) Toiide V. Clond, L. E. 18 Eq. 634. 
 
 (d) Ex parte Geaves, 8 De G. M. & G. 291. 
 
 (e) Vipont V. Radcliffe, 1891, 2 Ch. 360. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 107 
 
 of time (/), — Svil., in the absence of some provision in 
 the trust instrument entitling him to compensation (gf) . 
 
 Also, a solicitor-trustee is not entitled to charge (ex- SoUcitor- 
 oept for his costs out of pocket only) for non-contentious ^^-^ed" 
 business done by him in relation to the trust, — Scil., only for costs 
 unless there is in the deed or will a provision enabling o»t »* pocket- 
 him to receive remuneration for the transaction of such 
 business (h); and as regards contentious business also, he 
 is not entitled to the profit-costs of the action (i) . But 
 this rule of the Court (relative to solicitors), although 
 a well-established rulcj is not a convenient rule (or a 
 beneficial rule) at all (k) : Therefore, where the solicitor 
 is only one of several co-plaintiffs or co-defendants in 
 the action, he is allowed his full profit-costs in respect 
 of his co-litigant (Z); and even when the solicitor-trustee 
 is the sole plaintiff (or sole defendant), his partner (if 
 he act for him as his solicitor, — and will be exclusively 
 entitled to the profit-oosts for his own benefit) will be 
 entitled to his full profit-costs (to) . 
 
 Where the solicitor was a mortgagee, and (as such) was Solicitor- 
 made a defendant to a redemption action; and he de- Ssoo^^^'"' 
 fended the action by himself or his firm, — He used to provieion for. 
 be entitled only to his costs out of pocket, and not to, 
 any profit-costs; but, now, under the Mortgagees' Legal 
 Costs Act, 1895 (w), s. 3, he is entitled to his profit-costs 
 in such a case, — and generally, in fact, to his full costs, 
 whether the business be contentious or non-contentious, 
 and including (in non-contentious business) his negotia- 
 tion fee (o) . 
 
 Where a solicitor (executor or trustee) is by an express Express 
 clause in the will to be "at liberty to charge for profes- ^u^asto" 
 sional services" that is a sort of bequest (p) or annuity {q) costs. 
 
 (/) Longstaffe v. Fenwiclc, 10 Ves. 405. 
 
 Ig) Bignellv. Chapman, 1892, 1 Ch. 59. 
 
 (A) Burgess v. Vinnicombe, 34 Ch. Div. 77. 
 
 (i) Imperial Mercantile v. Coleman, L. R. 6 H. L. Cas. 189. 
 
 (A) Charley's case, 13 Q. B. D. 872. 
 
 {1} Cradock v. Piper, 1 Mac. & G. 064. 
 
 (m) Clack's case, 7 Jur. N. S. 441. 
 
 (m) 58 & 59 Vict. c. 25. 
 
 (o) In re Norris, 1902, 1 Ch. 741. 
 
 (p) Pennell v. Franklin, 1898, 1 Ch. 297. 
 
 (?) Att.-Gen. v. Eyres, 1909, 1 K. B. 723. 
 
108 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Trustees may 
 stipulate to 
 receive com- 
 pensation. 
 
 to him; but, under such a clause, he can (in the general 
 ease) only charge for services strictly professional,— and 
 not for matters which an executor or trustee ought to 
 have done personally and without the intervention of a 
 solicitor (r) : Therefore, the will ought to give the soli- 
 citor a wider liberty in that respect, extending as well 
 to professional business as also to business not strictly 
 professional (s): And inasmuch as this liberty, where it 
 is given, will be construed as meaning only costs and 
 charges "properly incurred," — Therefore, it is safe, — and 
 also convenient, — that the liberty should extend to autho- 
 rising the co-trustees to settle (without taxation) the 
 amount of such charges (i), the co-trustees exercising in 
 such latter case merely the discretion of ordinary business 
 men. Occasionally, however, — (in bankruptcy (e.g.), 
 and in the case of judicial trustees), the remuneration 
 of a trustee may be fixed by statute, or by rule having 
 the force of statute, — and in such a case, the prescribed 
 amount and mode of the remuneration must be 
 observed (u) . 
 
 There is, however, nothing to prevent trustees (not 
 being solicitors) contracting with their cestuis que trustent 
 to receive compensation for the performance of the duties 
 of the trust; only such a contract will be regarded very 
 jealously by the Court. The Court will also, on a proper 
 application being made to it, sanction a commission being 
 paid (or allowed) to the trustee for his trouble, where 
 (e.g.) the execution of the trust is more than ordinarily 
 burdensome (x), — and that whether the trustee is an 
 ordinary trustee or is a judicial trustee; but whether the 
 trustee is to be paid or not for his trouble, his liability 
 is and remains, in general (y), — but not invariably (z), 
 — the same: 
 
 Trustee must If a trustee or executor buys up any debt or encum- 
 advaatageTut brance to which the trust estate is liable, for a less sum 
 
 of his trust. 
 
 (f) Ames V. Taylor, 25 Ch. D. 72. 
 
 (s) Clarkson v. Robinson, 1900, 2 Ch. 722. 
 
 (t) Bennett -v. Bennett, 1893, 2 Ch. 413; In re Wcllborne, 1901, 1 Ch. 
 312 
 
 (m) Feed's case, 2i Q. B. D. 68. 
 
 {x) Re Freeman's Settlement Trust, 37 Ch. Diy. 148. 
 
 [y] Jobson v. Palmer, 1893, 1 Ch. 71. 
 
 (a) Ifational Trustees T. General Finance, 1905, A. C. 373. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 
 
 than is actually due thereon, he will not be allowed to 
 take the profit to himself; but the creditors and legatees 
 (or other the cestuis que trustent) shall have the profit- of 
 the purchase (a) . Also, if a trustee or executor uses the 
 fund committed to his care in buying and selling land, or 
 in stock speoulatioBfi, — or lays out the trust money in 
 a commercial adventure of his own, or employs it in his 
 business, — ^^he will be liable for all the losses,- and the 
 cestui que trust will be entitled to all the gains (6). And 
 a trustee will not be allowed to take the benefit to himself 
 of any renewal of the leases which are subject to the 
 trust; nor will he be permitted, as a general rule, to pur- 
 chase the trust estate from his cestui que trust: 
 
 AH which rules apply also to constructive trustees, — 
 whether agents (c); solicitors (J), guardians (e), or part- 
 ners (/); directors of companies {g), or promoters of com- 
 panies (A.); managing owners (f), committees of inspec- 
 tion in bankruptcy {k), auditors (I), or borough trea- 
 surers (m) ; and all these fiduciary persons must, there- 
 fore, refund all profits improperly made by them at the. 
 expense of the trust estate (w), — with interest thereon at 
 4 per cent, per annum (o), — besides being denied, — in 
 general (p), but not invariably {q), — all remuneration for 
 their trouble. 
 
 But the question, for whom the officials referred to, or 
 
 [a) Pooley t. Quitter, 2 De G. & J. 327. 
 (J) Docker v. Somes, 2 My. & K. 655. 
 
 (c) Tate V. Williamson, L. R. 2 Ch. App. 55. 
 
 (d) Savertj v. King, 5 H. L. Ca. 627. 
 \e) Fowell v. Ghver, ,3 P. W. 252, «. 
 (/) Aas V. Benham, 1891, 2 Ch. 244. 
 
 \g) Great Luxetnbourg Railway Co. t. Magnay, 25 Beav. 686. 
 
 (A) Gluclcstein v. Barnes, 1900, A. C. 240. 
 
 (i) Williamson v. Hine, 1891, 1 Ch. 390. 
 
 (k) Buddy's Trustee v. Feard, 33 Ch. D. 500. 
 
 (/) Leeds Estate Co. v. Shepherd, 36 Ch. Div. 787. 
 
 {m) A.-G.T. t)e Winton, 1906, 2 Ch. I(i6. 
 
 («) Imperial Mercantile v. Coleman, L. E. 6 H. L. 189. 
 
 (o) Parker v. McKenna, L. R. 10 Ch. App. 118, on pp. 124, 125, 
 
 (p) Andrews v. Eamsay, 1903, 2 K. B. 635. 
 
 (?) Hippisley v. -Knee, 1905, 1 K. B. 1. 
 
 109 
 
110 . THE OEIGINALLY EXCLUSIVE JURISDICTION. 
 
 any of them, are trustees, is sometimes a difficult one to 
 answer (r) . 
 
 But, Thota bene, directors are not under any paramount 
 duty to preserve the corpus of the trust estate, being free 
 to deal therewith as "commercial men" in the exercise 
 of a just discretion, — and to do also everything that is 
 reasonably incident to the position they are in, which 
 results from any prior lawful act of theirs (s) . Also, under 
 a special contract with the company (t), and not other- 
 wise (m), — 'directors are free to retain to themselves their 
 secret profits, — Scil., Because, in such a case, these profits 
 are not secret. 
 
 Exoeijtional Trustees, unless when they are trustees holding upon an 
 
 faustee's^'"'''^ express trust to sell {x), may, however, occasionally pur- 
 purchase from chase from their cestuis que trustent, — That is to say, in 
 
 ■cestui que trust ,1 on 
 
 jioids good. the lof iowmg cases : 
 
 (1) If the trustee will give more for the trust estate 
 
 than any other purchaser, — In other words, if he 
 will give a " fancy price " for it; or 
 
 (2) If the offer to sell proceeds from the cestuis que 
 
 trustent, and the trustee pays the ordinary value 
 in the market, keeping his cestui que trust " at 
 arm's length"; or 
 
 (3) If the sale is by public auction, and the trustee 
 
 has the leave of the Court to bid (y) ; or 
 
 (4) If the trustee is only a bare trustee; or has retired 
 
 from the trust, for (say) twelve years (z). Also 
 
 (5) Where a purchase is one which might not have stood 
 
 originally, it may (by lapse of time and subse- 
 quent events) have become impossible of rescis- 
 sion (a), — although the Statutes of Limitation 
 
 ()■) Sathv. Standard Land Co., 1911, 1 Ch. 618. 
 
 (s) Sheffield, S;c. Buildinci Society v. Aizlewood, 44 Ch. Div. 112. 
 
 (t) Costa SicaS. C. v. Forwood, 1901, 1 Ch. 746. 
 
 (m) Watlcin's case, 1904, 1 Ch. 242. 
 
 {x) Delves Y. Gray, 1902, 2 Ch. 606. 
 
 ly) Guest v. Smythe, L. E.. 5 Ch. App. 551. 
 
 («) Boles's case, 1902, 1 Ch. 244. 
 
 ,(a) In re Alexandra Falace Co., 21 Ch. Div. 149; 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. ' HI 
 
 are, in general, no bar to such a suit (b), and the 
 defence of laches or acquiescence is most diffi- 
 cult to establish (c) . But where the purchase 
 has been by an executor-trustee who has not 
 proved the will (nor otherwise acted in the 
 matter of the will or in the trusts thereof), if it 
 is sought to invalidate the purchase, it must be 
 shown that the purchaser used his peculiar posi- 
 tion in such a way as to render it inequitable that 
 the sale should stand (d) . 
 
 As regards a constructive trustee, his liabilities arei '^T^'^'^w''' 
 in general matters of quasi-contract only, — so that he is same extent 
 not bound by many of the rules which equity has annexed t^s^™^^' 
 to the express fiduciary relation. Therefore, in Knox v. . 
 Gye (e), where it was contended that the surviving part- favour of Con- 
 ner was a trustee of the share of his deceased partner, the structive 
 Court said, that if the surviving partner was to be called although not 
 a trustee at all for the dead mian, the trust was limited to ™ favour 
 the discharge of an obligation which was liable to be trustee. 
 barred by lapse of time. But where a person (not being constructive 
 an executor or an express trustee) has emploved the J"^'^® ^^J 
 
 '^ .. , .' •! have remune- 
 
 numey of another in a trade or business without any au- ration for 
 thority to do so, he muBt account, in general, for the 
 profits, — having only some reasonable allowance (called 
 a "just allowance") for his loss of time, and for his 
 skill and trouble (/) . 
 
 An executor is not, as a general rule, an express trustee 
 of the legacies given by the will, — ^although he may be or 
 become aa express trustee thereof (g) ; and when he is 
 liable in respect of such legacies as an executor simply, he 
 is only constructively a trustee thereof, — and accordingly, 
 may, in general, plead the Statutes of Limitation in his 
 defence (h) . And when a woman gives her moneys to a 
 
 {{) Surdick V. Garrick, L. R. 5 Oh. App. 233. 
 
 [c] Beningfield v. Baxter, 12 App. Ca. 167. 
 
 {i) Clark V. Clark, 9 App. Ca. 733. 
 
 (e) L. R. 5 H. L. 656, 675. 
 
 ( f) Docker v. Somes, 2 M. & K. 665. 
 
 (y) Fhillipo V. Mtmnings, 2 My. & Or. 309. 
 
 (h) In re Davis, 1891, 3 Ch. 119. 
 
 time and sldU. 
 
112 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Trustee Act, 
 1888, s. 8,— 
 When and 
 when not the 
 Statutes of 
 Limitation are 
 now a protec- 
 tion even to 
 express 
 trustees. 
 
 man to invest for her, and he invests them in his own 
 name, — ^and the man is the woman's spouse, whether law- 
 ful (i) or unlawful (/<;),— he will be only constructively a, 
 trustee for her of the investments. 
 
 By the Trustee Act, 1888 (l), a. 8,— a statute applic- 
 able to trustees generally, but not to a trustee in a bank- 
 ruptcy (m), — It has now been provided, generally, that 
 [unless when the claim is founded on any fraud or fraudu- 
 lent breach of trust to which the defendant-trustee wa& 
 party or privy (n) ; or unless where the claim is to recover 
 trust property or the proceeds thereof still retained by th& 
 defendant-trustee (o), or previously received by him and 
 converted to his own use (p)], — In any action commenced 
 after the 1st January, 1889, a defendant-trustee shall 
 have the full benefit of all (if any) Statutes of Limitation, 
 which would be applicable if the defendant was not a 
 trustee (q), — so that the old law in that particular (r) is 
 now superseded. And, by the same Act and section, in 
 any such action so commenced against a trustee (or even 
 against a director (s)), where no Statute of Limitations- 
 is available as a defeaoe to the claim, — The trustee (or 
 the director) may, by force of the Act alone, plead the 
 lapse of time in bar of the action, in like manner as in 
 an action of debt for money had and received (t) : But 
 as against the benefkiaries, the statutes are to run only 
 as from the time at which their interests (being rever- 
 sionary) fall into possession (u), — so that the tenant for 
 life may be barred, while the reversioner is not barred (a;) .. 
 
 One trustee In Toivnley V. Sherborne {y), it was stated, that where 
 
 his'co-trustee l^'^^ds are convcyed to two or more trustees, and one of 
 
 — ^practically. 
 
 (i) Mercier v. Mercier, 1903, 2 Ch. 98. 
 (i) James v. Solmes, 4 De G. P. & J. 470. 
 (?) 51 & 52 Vict. 0. 59. 
 {m) In re Cornish, 1895, 2 Q. B. 634. 
 
 («) Jones V. Morgan, 1893, 1 Ch. 304 ; Mason v. Mercer, ih. 590- 
 (o) Thome v. Seard, 1S94, 1 Ch. 599. 
 [p) Eickett V. Eickelt, 1906, 1 Ch. 793. 
 (q) How V. Earl Winterton, 1896, 2 Ch. 626. 
 ()•) Obee V. Bishop, 1 De G. P. & J. 137. 
 («) In re Lands Allotment Co., 1894, 1 Ch. 646. 
 (() Andrew v. Cooper, 45 Ch. D. 444. 
 (m) Somerset v. Earl Powlett, 1894, 1 Ch. 231. 
 \x) Fountaine v. Amherst, 1909, 2 Ch. 382. 
 y) Cro. Car. 312. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 113 
 
 them receives all (or the most part of) the profits, and 
 after dieth or decayeth in his estate, his co-trustees shall 
 not be compelled to answer for the receipts of him so 
 dying or decayed, — " Unless some evil-dealing appears to 
 have been in them, to prejudice the trust;" but that if 
 there was "any evil-practice or ill-intent," they should 
 be charged; and .the actual decision in the case was, that 
 the trustee who had joined with his co-trustees in signing 
 receipts was liable, though he had received nothing, — 
 Scil., because the liability of the non-receiving trustee 
 , arose, not from his mere signing of the receipts, but from 
 his subsequently leaving in the hands of his co-trustees 
 the money that had been received, which was an " evil- 
 dealing": And in later times, the rule has been main- "Signing for 
 tained, that a trustee who joins in a receipt for con- conformity," 
 formity, but without receiving, shall not (by that (i)Byitseif 
 circumstance alone) be rendered liable for a misapplica- alone, 
 tion by the trustee who receives (2;), — So that a trustee ^^^Y^®''-^, 
 may exonerate himself by showing, that the money subsequent 
 acknowledged to have been received by all was in fact neglect of 
 not received by all, and that he signed for conformity '^ ''' 
 only. But, even so, the fact of his having joined in the 
 receipt gives him notice, that trust money has been re- 
 ceived, — So that he will not be justified thereafter in 
 allowing the money to remain in the hands of the receiv- 
 ing co-trustee (a), for a longer period than the circum- 
 stances of the case may reasonably require. 
 
 Co-executors (as distinguished from co-trustees) are. One executor 
 in general, answerable each for his own acts only, and ^"300^ ^ ™ 
 not for the acts of the other or others of them (6), — Scil., executor,— 
 because each executor has (independently of his co- P'^^^'=*'<=aUy. 
 executors) a full and absolute control over the personal 
 assets of the testator, and is competent to give a valid 
 discharge therefor by his own separate act, — In which 
 respect, he is, apparently, different from one of several 
 co-administrators (c) : And an executor (and even an 
 
 (z) In re Fryer, 3 K. & J. 317. 
 (a) Wi/manr. Pattemon, 1900, A. C. 271. 
 lb) Williams v. Nixon, 2 Beav. 472. 
 \c) Sudson V. Hudson, 1 Atk. 460. 
 
114 
 
 THE ORIGINALLY EXCLUSIVE JUEISDICTION . 
 
 administrator) can of himself effectively compromise any 
 claim (d), — even a claim by his co-executor (e); but, nota 
 bene, not a claim by himself (/) . 
 
 If, therefore, an executor join vi^ith his co-executor in 
 signing a receipt, he does an unnecessary act (g), — and 
 will be prima facie answerable for any misapplication 
 of the fund, — Unless he is able to show, that he never 
 was, in fact, in a position (subsequently to signing the 
 receipt) to control the receiving executor {h) : That is 
 to say, — if the receipt be given for mere form, then the 
 signing will not charge the non-receiving executor; but 
 if the receipt he given under circumstances purporting 
 that the money, though not actually received by both 
 executors, was under the control of both, then it will 
 be different (i). 
 
 But executors 
 would be liable 
 as for wilful 
 default, — 
 even for what 
 they have not 
 received, 
 where (but for 
 their neglect) 
 they might 
 have received. 
 
 It is highly necessary also to remember, that the non- 
 liability of an executor in respect of moneys received by 
 his co-executor, holds good only in the absence of wilful 
 DEFAULT on the part of the non-receiving executor, — For, 
 if wilful default on his part be shown, having regard to 
 his powers and duties under the will (fe), he will be liable 
 even for what he has not himself received: Therefore, 
 in Styles v. Guy (I), where two of three executors knew 
 perfectly well, that there were unsettled accounts between 
 the testator and their co-executor, — and had reason to 
 believe that the balance would be considerably against 
 the co-executor; and they took no effectual steps, for 
 several years after the testator's death, to compel their 
 co-executor to account for (or to pay or secure) the balance 
 due; and that co-executor went bankrupt; and the other 
 two were unable to show, that an attempt to recover the 
 money at an earlier period imuld have been fruitless, — 
 The Court held, that these two others were liable to make 
 
 [d) Trustee Act, 1893, s. 21. 
 
 (e) Sawley v. Blnkc, 1904, 1 Ch. 622. 
 (/) Oooke V. ColUngridi/e, 1 Jac. 607. 
 (17) Clough V. Bond, 3 My. & Or. 490. 
 h) Wesiley v. Clay/cc, 1 Eden, 357. 
 
 (i) Joy V. Gmnphell, 1 Sch. & Lef. 341. 
 (A) Rowley v. Adams, 2 H. L. Ca. 725. 
 (?) 1 Mac. & Gord. 422. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 115 
 
 good the loss (as having been occasioned by their wilful 
 default): The decision in Styles v. Guy supposes, how- 
 ever, that there were either unpaid creditors or unpaid 
 legatees of the testator who could not get paid their debts 
 and legacies respectively, without the aid of the moneys 
 owing from the debtor-exeoutor, — Because when a testator 
 appoints his debtor his executor, there is (at law) a 
 merger of the debt (m) ; and once all the debts and the 
 legacies are paid, — ^and the estate of the deceased testator 
 is "clear," — the legal merger is efiective in equity 
 also, in favour of the debtor-executor (n). And here note 
 a curious thing which happened, in Ingle v. Richards (o), 
 to a debtor-exeoutor, — ^the Court there holding (in favour 
 of the unpaid creditors and unpaid legatees of a deceased 
 testator), that the debt which the executor owed to the 
 estate, and which had become statute-barred four years 
 after the death, was to be deemed to have been received 
 by the debtor-exeoutor, by force merely of that executor 
 taking probate of the will (which he did) fifteen years 
 after the death. 
 
 Where trustees are held liable for a breach of trust, the Recoupment 
 judgment is against both or all of them jointly; but (like tion°— as "' 
 other joint judgments), it may be executed against any betweeo co- 
 one of the trustees singly; and when the judgment against breach o™ ^ 
 two co-trustees is satisfied in part by one of them, and trust,— 
 thereafter the other trustee goes bankrupt, the proof in 
 his bankruptcy is for the whole original judgment debt 
 (and not merely for the balance of it which remains un- 
 satisfied (p)). 
 
 The Court will, oocasionally (but only in exceptional (i) As regards 
 cases), provide in the judgment against the trustees (when ^ade'eocf™^ 
 the one alone is morally guilty, and the other is only 
 technically liable), that the innocent trustee shall be en- 
 titled to be recouped out of the estate of the guilty 
 trustee the amount paid to the plaintiff in satisfaction 
 of the breach of trust (q) . But, when both trustees are 
 
 [m) Wanleford v. Wanhford, 1 Salk. 299. 
 
 («) In re Price, Price v. Price, 11 Ch. D. 163. 
 
 (o) 28 Beav. 366. 
 
 [p) Bdwards r. Hood-Barrs, 1905, 1 Ch. 20. 
 
 [q) Sahin t. Hughes, 31 Ch. DiT. 390. 
 
 i2 
 
116 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 equally guilty, the Court will not so provide, — the right 
 of the trustee who has made good the breach being a 
 right to contribution, and not to recoupment (;■); and, 
 usually, the trustee who is entitled to contribution 
 must commence an independent action against his co- 
 trustee, to enforce the contribution (s) . Where the breach 
 of trust consists of an unauthorised investment, the right 
 is for contribution only (<); but where two trustees were 
 equally involved in a breach of trust, and one of them 
 was also a beneficiary, and the judgment against both 
 was satisfied out of the beneficial interest of the one, the 
 beneficiary trustee was held to have no right to contribu- 
 tion against his oo-trustee (m) . Also, where a trustee- 
 beneficiary died, and (after his death) he was found to 
 have overpaid the other beneficiaries and to have under- 
 paid himself, his estate was held not to be entitled (as 
 against the other beneficiaries) to be recouped that under- 
 payment (x). 
 
 (2) As re- But, as regards the costs of the action for the breach 
 
 If ^s^t^^ ""^^^ °^ trust, neither recoupment nor contribution is, semble, 
 available (by action) in favour of the trustee (whether 
 guilty or innocent) who has paid the whole of such 
 costs (?/); but, occasionally, the Court will (in a proper 
 case) make the necessary order in the action itself {z) . 
 
 The right of a trustee, whether to recoupment or to 
 contribution, is like the right of a surety; and the Statutes 
 of Limitation, therefore, do not begin to run against such 
 right, until judgment for the breach of trust has been 
 obtained (a) ; and any merely quia timet action by the 
 trustee (Scil., any action before such judgment) would, 
 apparently, be dismissed (6). 
 
 Indenmity An express clause is usually inserted in trust instru- 
 
 bursemmt ments, that one trustee shall not be answerable for the 
 
 (r) Friestman T. Tindall, 24 Beav. 244 ; Bahin v. Mushes, supra. 
 
 [s] Lingard v. BnrnUy, 1 V, & B. 114. 
 
 [t] Jackson v. DicMmon, 1 903, 1 Ch. 947. 
 
 (m) ChiUingworth v. Chambers, 1896, 1 Ch. 685. 
 
 \x) Wilson V. Cox-Sinclair, 1905, 1 Ch. 76. 
 
 (y) Deirsley^. Middleweek, 18 Ch. Div. 236. 
 
 (z) Oatlley T. We>t, 1904, 2 Ch. 785. 
 
 [a) Rnhinson v. Harlcin, 1896, 2 Ch. 415. 
 
 (J) Butler V. Butler, 7 Ch. D. 116. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 117 
 
 «u3ts or defaults of his co-trustees, — but for his own acts clauses,— 
 and defaults only; and also a further express clause that gene^i°*' ™ 
 the trustees may reimburse themselves out of the trust 
 estate their costs, charges, and expenses properly incurred. 
 But, as equity infuses such provisions into every trust 
 deed (c), a person can have no better right from the ex- 
 pression of that which (if not expressed) would be 
 implied (d); and the Trustee Act, 1893, s. 24 (continuing 
 the like provision contained in Lord St. Leonards' Act, 
 •s. 31) has adopted this principle of equity, — That is to 
 say, trustees are not to be thereby further indemnified 
 (or reimbursed) than they were before; and a "wider in- 
 demnity (or reimbursement) clause is therefore often 
 expedient, — and is not unusually inserted in trust instru- 
 ments (whether deeds or wills). The reimbursement is, 
 in general, out of residue, — but may be out of any part 
 of the estate (e), — and even out of income (/), — the 
 trustee's right being paramount to the rights of all the 
 cestuis que trustent ; but there is norule of law, requiringi 
 that the reimbursement (or the indemnity) shall be at 
 the cost of the tenant for life exclusively {g) ; nor may 
 the right of indemnity, in general, be so exercised as to 
 defeat (or exhaust) the trust altogether Qi) . Apparently, 
 the liability of the cestui que trust to indemnify his 
 trustee, continues even after the cestui que trust has sold 
 and assigned his whole beneficial estate and interest {i), 
 — although, in such a case, the purchaser may be also 
 liable, and primarily liable. 
 
 As regards reimbursing or recouping trustees their Costs of litiga- 
 
 -costs of litigation, — and whether the trustees are the against trus- 
 
 plaintiffs or are the defendants, — tees,— nght of 
 
 Firstly, If they have obtained the leave of the Court imburaement. 
 to sue or (as the case may be) to defend, — which leave 
 they will obtain, if the litigation appears to be prima 
 
 {e) Dawson v. Clarke, 18 Ves. 254. 
 
 (i^) TT'orrall-T. Harford, 8 Ves. 8. 
 
 (e) Stott V. Milne, 25 Ch. Div. 710. 
 
 (/) Sawyer v. Sawi/er, 28 Ch. Div. 695. 
 
 (g) In re Lever, 1897, 1 Ch. 32. 
 
 \K) Darke v. Williamson, 25 Beav. 622. 
 
 \i) Matthem v. Buggies -Brise, 1911, 1 Ch. 194. 
 
118 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 facie proper and in the interest of the estate, — They are 
 protected thereby against their own cestuis que trustent, 
 however the litigation may result, — and will therefore 
 (in such a case) be entitled to be reimbursed their costs 
 out of the trust estate; 
 
 But, Secondly, If they have omitted the precaution of 
 obtaining such leave, — The rule is, that they are entitled 
 (in that case also) to be reimbursed (out of the trust 
 estate) their expenditure in costs (including even the 
 extra costs incurred by the trustees in their own personal 
 defence against a charge of personal fraud alleged against 
 them), — 8cil., where the charge is in respect of some- 
 thing incidental to their administration of the trust 
 estate (fc), — but not in any case, if the litigation is specu- 
 lative and (in the ultimate result) unsuccessful (l). 
 
 Generally, as regards the powers, duties, and responsi- 
 bilities of trustees, — It is to be observed. Firstly, that 
 upon the death of one of the trustees, the entire rights 
 and powers survive over into the survivor or survivors, — 
 So that the trustees or trustee " for the time being" may, 
 in general, exercise all these rights and powers, — and (as 
 regards powers) even powers which are discretionary (to); 
 and the entire future responsibilities also so survive over, 
 — ^without prejudice, nevertheless, to any responsibility 
 which has accrued before the death, and which is (or may 
 be) of a character to entitle the cestuis que trustent (or 
 any of them) to proceed against the estate of the deceas- 
 Duty of trustee ing trustee: And it is to be observed, Secondly, that 
 trtSTproperty. ^^^ primary duty of a trustee is to carry out the directions 
 of the person creating the trust, — and (subject to that) 
 to place the trust property in a state of security: 
 
 (1) Eeduction If, therefore, the trust fund be an equitable interest, of 
 OT qmsi-^"''™ which the legal estate cannot for the moment be got in, 
 poBsession. it is the trustee's duty to lose no time in giving notice to 
 
 (k) Walters v. Woodbridge, 7 Ch. D. 504 ; Brinklow v. Singleton, 1904 
 1 Ch. 648. 
 
 (t) In re Yorke, Sarloui v. Yorke, 1911, 1 Ch. 370. 
 Im) JBastwiek v. Smith, 1904, 1 Ch. 139. 
 
TEUSTEES STANDING IN A FIDUCIARY RELATION. 119 
 
 the person in whom the legal interest is vested; and if the 
 
 trust fund be a chose in action which may be reduced 
 
 into possession, it is the trustee's duty to get it in, and 
 
 any unnecessary delay in that will be at his own risk. 
 
 And, further, an executor is not to allow the assets of the (2) Reaiisa- 
 
 testator to remain outstanding upon personal security, ou^tandine^n 
 
 though the debt was a loan by the testator himself on personal 
 
 what he deemed an eligible investment ; and a trustee is ^'"'"" y- 
 
 not justified in himself lending on personal security, — 
 
 although he may continue such loans (and also make new 
 
 loans on personal security), if expressly empowered to do 
 
 so by the instrument creating the trust (w), — exercising 
 
 his discretion (in such case) in an honest and reasonable 
 
 way (o), — and even loaning, to one of the beneficiaries 
 
 themselves, if he deems it prudent to do so (p). 
 
 As regards the Range of Investments for trust funds, (3) Thein- 
 " The Trustee Act, 1893 " (56 & 57 Vict. c. 53), repealing trasrfiui(£. 
 but re-enacting "The Trustee Investment Act, 1889" 
 (52 & 53 Vict. 0. 32), now authorises (by s. 1) trustees to 
 invest trust funds in or upon (among the other securities 
 to be presently mentioned) any of the securities in or 
 upon which " cash under the control of the Court " may 
 be invested {q) ; and the Act applies to all trusts, whether 
 created before or after the 22nd September, 1893. 
 
 Prior to the Trust Investment Act, 1889, and indepen- W In^'est- 
 
 T 1 n -1 ments 
 
 dently oi any power given by statute, trustees exe- authorised 
 
 before Trust 
 Investment 
 
 (m) Paddon v. Richardson, 7 De 0-. M. & a. 56. Act, 1889. 
 
 (o) Smiths. Thompson, 1896, 1 Oh. 71. 
 
 \p) Laing t. Radelife, 1899, 1 Ch. 593. 
 
 (q) By Ord. XXII. r. 17, oasli under the control of (or subject to 
 the order of) the Court, may be invested in (among others) the following- 
 stocks, funds or securities, viz. : 2J per cent. Consols ; stock under the 
 Local Loans Act, 1887 ; Bank Stock ; London County CouncU 3^ per 
 cent, stock ; India 3j per cent, stock ; India 3 per cent, stock ; Indian 
 guaranteed railway stocks or shares, not being redeemable within fifteen 
 years from the date of investment ; stocks of Colonial Governments 
 guaranteed by the Imperial Government ; mortgages of freehold and 
 copyhold estates respectively in Enf^land and Wales ; debenture, prefer- 
 ence, guaranteed, or rent-charge stocks of railways in Great Britain or 
 Ireland, having (for ten years next before the date of investment) paid a 
 dividend on their ordinary stock or shares, — Soil., being guaranteed by 
 the railway company ; and nominal debentures, or nominal debenture 
 stock, under the Local Loans Act, 1875, not being redeemable within 
 fifteen years from the date of investment. 
 
120 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 cutors or administrators might lawfully have invested in 
 Government securities, or in Consolidated Bank 
 annuities (?-) ; and trustees were enabled (by successive 
 statutes) to invest in divers other investments and secu- 
 rities, — That is to say, by Lord St. Leonards' Act (22 & 
 
 23 Viet. c. 36), s. 32 (s), by Lord Cranworth's Act (23 & 
 
 24 Vict. c. 145), s. 25, and by the Settled Land Act, 
 (b) Invest- 1882 (45 & 46 Vict. o. 38), s. 21. And now, under the 
 Trustee Act^ express provisions of the Trustee Act, 1893 (which is 
 1892- in large measure a consolidating Act, and which has been 
 
 extended, quoad investments, by the Colonial Stock Act, 
 1900 {t)), — Trustees, unless expressly forbidden by the 
 instrument (if any) creating the trust, — or unless 
 (semhle) their investments are controlled by some special 
 Act (as the investments of building societies are (m)), — 
 may (if they have power to invest at all (x)), invest the 
 trust funds in any of the following investments (besides 
 those already specified for " cash under the control of the 
 Court"), — That is to say: 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 of the Bank of Ireland; India three 
 and a half per cent, stock, and India three per cent, 
 stock, or any future issues of such stock; securities the 
 interest of which is guaranteed by Parliament; certain 
 listed Colonial Stocks: London County Council stock; 
 debenture stock of any railway company in Great Britain 
 or Ireland incorporated by special Act of Parliament 
 (and having during each of the ten years last past before 
 the date of investment paid a dividend at the rate of not 
 less than three per centum per annum on its ordinary 
 stock); debenture stock of any railway company in India 
 the interest on which is paid or guaranteed by the Secre- 
 tary of State in Council of India (y) ; debenture or guaran- 
 teed or preference stock of any company in Great Britain 
 
 (f) Baud V. Fardell, 7 De G. M. & G. 628. 
 
 (s) In re Wedderburn's Trusts, 9 Ch. Div. 112. 
 
 {t) 63 & 64 Viet. o. 62. 
 
 (m) In re National Permanent Society, 43 Ch. Div. 431. 
 
 (x) In re Manchester Eoyal Infirmary, 43 Ch. Div. 420. 
 
 {y) Topham v. Armitage, 1906, 2 Ch. 399. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 121 
 
 or Ireland, established for the supply of water for profit, 
 and incorporated by special Act of Parliament or by 
 Royal Charter (and having during each of the ten years 
 last past before the date of investment paid a dividend of 
 not less than five pounds 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 popula- 
 tion exceeding fifty thousand, — or lawfully issued by any 
 County Council, or lawfully issued by any Commis- 
 sioners 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 returns 
 of the last census prior to the date of investment) a popu- 
 lation exceeding fifty thousand, — besides certain other 
 stocks and debentures. And as regards any investments 
 of the kind specified in the Act, — and whether made under 
 the Act or before the Act, — the trustees may " vary" the 
 same for other like investments {z), — and also (by the 
 Trustee Act, 1894 (a), s. 4) may " continue " any of these 
 authorised investments, notwithstanding that (since the 
 investment of the trust funds therein) they may have 
 ceased to be an authorised investment (6). But the trust 
 instrument itself usually contains an express power to 
 "vary'' investments, and to "retain" or "continue" ex- 
 isting investments (c), — or existing securities (d) . 
 
 A power to invest in "real securities" does not, of rftS^"— ™' 
 course, authorise the trustees to invest in the " pur- meaning of 
 chase" of lands, — Scil., because that is an alienation out t'^^P"^*^^- 
 and out of the trust property; and for such an alienation 
 an express power is required. And any "purchase" 
 which may have been lawfully made under an express 
 power, is regarded as an "investment," — so as to be 
 realisable again by a sale thereof (e), — the sale being a 
 sort of " variation " of the investment, and the rule being 
 
 (z) Zopes v. Hume-Biek, 1892, A. C. 112. 
 (a) 57 & 58 Vict. u. 10. 
 [h) Cocks V. Chapman, 1896, 2 Ch, 763. 
 (e) Smith v. Zewis, 1902, 2 Ch. 667. 
 ((/) Rayner v. Rayner, 1904, 1 Ch. 176. 
 (e) In re Gent and Eason, 1905, 1 Ch. 386. 
 
^'^2 THE OEIGINALLY EXCLUSIVE JURISDICTION. 
 
 applicable also to the realisation of any real estate (origi- 
 nally mortgaged to the trustees) which they have (by 
 foreclosure) acquired the absolute title to (/). 
 
 " Real Securities " mean and intend first mortgages 
 only; but (subj^ect to that) they extend to comprise lease- 
 holds for long terms of years at a peppercorn rent, and 
 which are not subject to onerous covenants, — but not any 
 other leaseholds or terms of years (gr), — the leaseholds pre- 
 scribed by the Trustee Act, 1893, s. 5, being leaseholds 
 having not less than two hundred years unexpired, and) 
 which are not subject to any rent greater than a shilling 
 a year. . " Real Securities " were supposed, until recently, 
 t-o comprise also local rates, ha,rbour duties, tolls, and the 
 like, levied directly hy local or other public authori- 
 ties (h) ; and this opinion, although afterwards doubted (i), 
 has been now in great measure accepted again (k) ; and 
 the Trustee Act, 1893, s. 5, now expressly authorises (as 
 investments) improvement charges under the Improve- 
 ment of Land Act, 1864 (or mortgages of such charges). 
 
 Breaches of An investment which is not authorised, either by the 
 
 in cases of ' Aots above referred to or by the express investment 
 authoraedb'^^ clause Or olauises contained in the trust instrument, can- 
 the Court. not, in the general case, be sanctioned by the Court 
 even (l), — although, in cases of " emergency," the Court 
 may (under proper safeguards) sanction such an invest- 
 ment (m) . And, similarly, when a power of sale is exer- 
 ciseable by the trustees of a will on the death of the tenant 
 for life, the power may not be exercised by them in the 
 lifetime of such tenant, — not even with his consent; and 
 the Court may not (nor will) sanction the accelerated 
 exercise of the power (n), — unless in ease of some grave 
 emergency . 
 
 (/) Chapman Y. Browne, 1904, 1 Ch. 785. 
 
 {(j) In re Chennell, 8 Ch. Div. 492, 
 
 (A) I'inch V. Squire, 10 Ves. 41. 
 
 (i) Martin t. Lacon, 33 Ch. Diy. 332. 
 
 {k) In re Crosdey, 1897, 1 Ch. 928. 
 
 (V) In re New, 1901, 2 Ch. 534. 
 
 (m) In re Tollemaehe, 1903, 1 Ch. 457, 965. 
 
 («) Blackhto v. Laws, 2 Ha. 40, on p. 46. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 123 
 
 Where a testator subjects the resid/ue of his personal (4) Conversion 
 estate to a series of limitations, such part of the residue and^^CTsSn- 
 as may be wearing out (such as leaseholds) must, in ary property, 
 general, be converted, — and put in some permanent state ^^ed^r™' 
 of investment; and if the residue comprises property of siduary devise 
 a reversionary nature, that also must, in general, be °^ ^"^"^^ ' 
 converted, — and made at once income-producing (o) . And 
 the like rule is applicable also to unauthorised investmentis 
 generally, — even although they should not be of a weaxing 
 out character (p). But this duty to convert does not arise 
 when the trust instrument is a deed (q), — nor, of course, 
 where the bequest is not residuary at all, but is specific (r) . 
 And it is to be here observed, that a residuary bequest may 
 specifically enumerate divers properties, afid yet continue 
 (and usually it will continue) residuary, even as regards 
 the specifically mentioned properties (s), — although it 
 may, occasionally, be in fact specific (and not residuary), . 
 as regards the specifically mentioned properties (t) . 
 
 The duty to convert may be excluded (1) by any express 
 direction of the testator to the contrary; ox even (2) by 
 the sufficient indication of any intention on his part to 
 exclude it. For example, the duty to convert does not 
 arise where there is a discretionary power in the trustees 
 to convert ufhen and as they shall deem expedient {ii), — 
 or where the testator expressly authorises the retention Enjoyment 
 
 f 7 • 1 • / \ T 1 1 • 1 ^^ specie^ — 
 
 01 unauthorised investments (x), — thereby making them excludes the 
 (for the time being) authorised investments (y) . The ^"^^g*^ 
 duty to convert will also be excluded, if the testator ex- 
 pressly gives the income of the residue to be enjoyed in 
 specie (z) ; and an enjoyment in specie may be even im- 
 pliedly directed, — e.g., from an enumeration of particu- 
 lars (not being a mere expansion of what is comprised in 
 
 (o) ffowe V. Lord Dartmouth, 7 Vee. 137. 
 ip) Jn re Nwhohon, 1909, 2 Ch. 111. 
 (q) BoiisteaiY. Cooper, 1901, 2 Ch. 779. 
 \r) Moore Y. Wikon, 1907, 1 Ch. 394. 
 («) Baldock v. Green, 40 Ch. D. 610. 
 [t) Castle V. Oillett, L. K. 16 Eq. S30. 
 {u) Brandreth v. CoMn, 1896, 2 Ch. 199. 
 [x) Brown v. Qellatly, L. R. 2 Ch. App. 751. 
 («^) Bodgson v. Bates, 1907, 1 Ch. 22. 
 f«) Moore v. Wilson, 1907, 1 Ch. 394. 
 
124 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 the word residue (a)). But the right to enjoy in specie 
 will not be readily implied (6); and even where an en- 
 joyment in specie is directed, all such parts of the residue 
 as consist of "debts " owing to the estate (c), or of " shares 
 in a partnership business" (d), must be converted. An' 
 enjoyment in specie may arise also by force merely of the 
 local law (e). 
 
 Time for 
 conversion. 
 
 Where the duty to convert exists, it is a duty which 
 must, in general, be fulfilled within a year from the 
 testator's death (/); a ad where the trustees have a dis- 
 cretion as to the time for converting (e.g., a reversionary 
 interest in Consols), something (on the footing of income) 
 must in the interim be paid, — in the general case (g), but 
 not invariably (h), — to the tenant for life. 
 
 If there is a trust to convert, but with a discretionary 
 power in the trustees to retain, — and the trustees disagree 
 as to retaining, the trust to convert is paramount, and 
 becomes absolute (i) . 
 
 (5) Distin- 
 guishing be- 
 tween capital 
 and income. 
 
 Where the residue is given on a series of limitations, 
 and the duty of immediate conversion is excluded, the 
 testator may either give the whole actual income of the 
 existing securities until conversion to the tenant for 
 life (/c), or he may not do so: And where he has done 
 so, no question arises, — at least, in the general case(Z); 
 but where he has not done so, then it appears, in questions 
 between the tenant for life and the remainderman, — 
 (1) That the tenant for life is entitled to the actual in- 
 come of so much of the residue as is at the testator's 
 death invested on authorised securities; and (2) That, 
 
 {a) Re TuotaVs Estate, 2 Ch. Div. 628. 
 
 (J) Gcime\. Young, 1897, 1 Ch. 881. 
 
 (<;) Solgate v. Jennings, 24 Beav. 623. 
 
 (d) Kirkman v. Booth, 11 Beav. 279. 
 
 \e) In re Moses, 1908, 2 Ch. 235. 
 
 (/) Qrayhnrn v. Clarlcson, L. E,. 3 Oh. App. 606. 
 
 (g) Sdwils V. Sebb, 1900, 2 Ch. 107. 
 
 (A) Yates v. Yates, 28 Beav. 637 (a case of building land lying idle). 
 
 (i) In re Hilton, Oibbes v. Hale-Hinton, 1909, 2 Ch. 548. 
 
 (k) Chamellor v. Brown, 26 Ch. Div. 42. 
 
 {I) Askew V. Waodhead, It Ch. D. 27. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 126 
 
 with regard to the unauthorised securities (whether 
 wasting or not (m)), he is entitled to only some appor- 
 tioned part of that income, — being either (1) the income 
 which would be produced by the authorised investments 
 of these moneys if made at the end of one year from 
 the testator's death, — or else (2) the interest on the then 
 value, computed at the rate of 3 (and not 4) per cent, 
 per annum (w). And where there are outstanding in- 
 convertible securities, and they eventually fall in (o), — 
 or where there is a bond-debt which is not realised until 
 a great many years after the death (p), — the apportion- 
 ment between capital and income is made, by ascertain- 
 ing the sum which (put out at interest at three per cent, 
 per annum on the day of the testator's death) would, 
 with the accumulations of that interest at three per cent., 
 and with yearly rests, have produced (on the day of the 
 securities falling in) the amount actually received, and 
 by treating the sum so ascertained as capital, and the 
 rest as income; and where (in such a case) the full amount 
 is not realised, the loss or deficiency must be similarly 
 apportioned (q). 
 
 Trustees, if they are to mortgage the trust estate, must Mortgages by 
 have express power to do so: Which express power carries executors — 
 with it, in general, a power to insert in the mortgage 
 deed a power of sale (r) . But, this latter point having 
 been doubted, it is better, in giving trustees a power to 
 mortgage, to say that they may mortgage with or without 
 a power of sale to be inserted in the mortgage deed (s). 
 
 As regards executors, on the other hand, they may, of (a) Personal 
 course, sell or pledge whatever portion of the assets vests 
 in them virtute officii, — and it will be intended (in the 
 absence of fraud), that the sale or pledge is for the 
 purpose of paying the testator's debts (t), and it seems 
 to follow, that the executor may also mortgage, in 
 
 (m) In re Woods, 1904, 1 Ch. 4 ; Chayter t. Born, 1905, 1 Gh. 233. 
 
 [n) Kirkman v. Booth, supra; In re Woods, supra. 
 
 (o) In re Chesterfield's Trmfs, 24 Ch. Div. 643. 
 
 Ip) Turner \. Newport, 2 Phill. 14.' 
 
 (q) In re Atkinson, 1904, 2 Ch. 160. 
 
 \r) Re Chawtier'.s Will, L. K. 8 Eq. 669. 
 
 (s) S'-lbt/ V. Cooling, 23 Beav. 418. 
 
 (*) Solomon V. Attenhorough, 1911, 2 Ch. 169. 
 
126 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Immediate 
 sale, trust for, 
 — excludes the 
 right to mort- 
 
 general, such assets, with or without a power of sale in 
 the mortgage deed (m) . But as regards the assets which 
 did not vest in the executor virtuU officii, — i.e., real estate 
 devised to the executor, — It appears, that the executor 
 might, occasionally, — but only occasionally, — have created 
 a valid mortgage of that (x) ; but when the will con- 
 tained a trust for sale, and there was no power to postpone 
 the sale, the executor might not have made any such 
 (b) Real assets, interim mortgage («/) . However, now, and as re- 
 gards all testators and intestates dying after the 
 1st January, 1898, the whole real estate of the deceased 
 (other than the legal estate in his copyholds) vests (with 
 the personal estate) in the executor or administrator as 
 the legal representative, — and in a manner virtiite officii, 
 — by virtue of the express provision in that behalf con- 
 tained in the Land Transfer Act, 1897 (z), s. 1, — the 
 real estate being for this purpose regarded simply as p. 
 leasehold or chattel real: So that, by virtue of that Act, 
 the legal representative may now, in his discretion, either 
 sell or mortgage such real estate for any lawful purpose 
 of the administration, — ^during (at least) the first year 
 after the death and before any assent to the beneficial 
 devolution of the estate (a) . 
 
 Executors, — 
 carrying on 
 the business 
 of their 
 testator. 
 
 (1) Where no 
 power in the 
 will to do so. 
 
 Executors have not any authority (merely virtute 
 officii) to carry on the business of their testator, and to 
 use his estate therein, — although the will may, either ex- 
 pressly (6) or impliedly (c), empower them to do so: 
 And, firstly, it is to be observed, that if the business is, 
 in fact, carried on (whether under a power in the will to 
 do so, or without any power in the will to do so), — the 
 executors become (in either case) personally liable to the 
 creditors, on the contracts which they (the executors) 
 make with them, — So that the creditors may (in all cases) 
 sue the executors on these contracts, and get personal 
 judgment against them for the debts (J): And where. 
 
 (m) M'Leod V. Drummond, 17 Ves. 154. 
 
 [x] Corser v. Carlwright, L. R. 7 H. L. 731. 
 
 (y) Haldenby v. Spofforth, 1 Beav. 390. 
 
 (z) 60 & 61 'Vict. c.'65. 
 
 («) Ibid. s. 2, Bub-s. 2. 
 
 (b) Arnolds. Smith, 1896, 1 Ch. 171. 
 
 («) Nixon V. Cameron, 26 Ch. D. 19. 
 
 ((?) Owen V. Delamere, L. E. 15 Eq. 134. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 127 
 
 in such a case, personal judgment against the executor 
 has been obtained, then (so far as regards the estate of 
 the testator whose representatives the executors are), the 
 question of indemnity is one which arises only as between 
 the executors on the one hand and the beneficiaries on 
 the other hand(e). Therefore, secondly, where (under 
 the will) the executors have a power to carry on the busi- 
 ness, the carrying on of the business (in that case) is a 
 lawful execution by them of the trusts of the will, — and 
 the creditors will then (by subrogation to the executors) 
 have this other or further right, namely, — a right to go 
 against the assets of the deceased testator, to be paid 
 their debts thereout: which latter right is, apparently, 
 alternative (and not cumulative (/)), — and is exercised and 
 enforced according to the distinctions following, that 
 is to say: — 
 
 The testator sometimes limits the power of the execu- (2) where a 
 tors to a specific part of his assets; and sometimes he ESiT!'^ j**^^. 
 declares, that his whole estate (or general assets) shall 
 be available for the purposes of the business; and some- 
 times he does neither the one of these two things nor 
 the other. 
 
 And, firstly, if he do neither of them, then it appears, ^*X^^.^ "^ 
 that (as a general rule) the property which was in the pertyaireiS™ 
 business at the date of the testator's death (and that pro- in the business, 
 perty only) may lawfully continue to be used therein (^f), perty oniy^^^s 
 — In which case, the creditors of the executors have not ayaiiable; 
 any right (by subrogation or otherwise) against the 
 general assets (i^). 
 
 Secondly, if the general assets have been expressly made (h) Cases in 
 available for the purposes of the business, the whole estate ^hcSe esfcite 
 becomes (in effect) a fund for the creditors of the execu- (or the general 
 tors, — Scil., by subrogation to the executors, — In which avdiabiT-^ 
 case, the creditors of the executors have priority (semble) 
 over the creditors of the testator at the date of his 
 
 (e) Brooke v. Brooke, 189t, 2 Ch. 600. 
 
 (/) Dowse V. Gorton, 1891, A. C. 190. 
 
 [g] McNeilUe v. Aeton, i De G. M. & G. 744. 
 
 \h) Strickland v. Symons, 26 Ch. D. 245. 
 
128 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 death («), — the right of the executors to a full and com- 
 plete indemnity (at the expense even of the testator's 
 own creditors at the date of his death) being (in this case) 
 open to no question at all: 
 
 (c) Cases in Thirdly, where the testator empowers his executors to 
 
 mecfficToJ employ only a limited portion of his assets for the purpose 
 
 limited) assets of carrying on the business, — The executors have (in this 
 
 aval ab e. case) a right to resort to the limited assets only : hence it 
 
 follows, that (in this case) the creditors also are entitled 
 
 (by subrogation) to obtain payment of their debts out 
 
 of such limited assets only (and not out of the general 
 
 assets (Jt)). And, nota bene, this right of the executora 
 
 (and right, by subrogation, of the creditors) extends also 
 
 to damages recovered against the executors, in respect of 
 
 a tort committed by them (being a tort naturally arising 
 
 in the due carrying on of the business (I)). 
 
 Executor in When th© executor is himself in default to the limited 
 
 effect ofThat °'' specific assets (which are available for the purposes 
 
 on Mm, and on of the business), he (the executor) is not (in such a case) 
 
 the tm^es^s^ °* entitled himself to any indemnity (except upon the terms 
 
 of first making good his own default); and the creditors 
 
 are in no better position (m) ; but where there were three 
 
 executors, and one only of them was in default, the 
 
 creditors were held entitled in respect of the other two (n) . 
 
 Indemnity, — 
 when a 
 receiver and 
 manager is, 
 or is not, en- 
 titled to it ? 
 
 As regards a receiver and manager appointed by the 
 Court (in the winding-up of an estate or of a company, 
 or in a debenture holders' action, or the like), — Seeing 
 tliat (equally with an executor carrying on the business) 
 he contracts a personal liability, therefore (equally with 
 an executor) he is entitled to an indemnity out of the 
 estate (o), — Soil., out of the estate only (p), and to the ex- 
 tent only that he has been acting on behalf of the estate (g). 
 
 (i) Dowse V. Gorton, supra. 
 
 (k) Ex parte Garland, 10 Ves. 52, 120. 
 
 {!) Rayhould\ Turner, 1900, 1 Ch. 199. 
 
 (m) r.rans v. Evonx, 34 Ch. D. .597. 
 
 (n) Nmton v. Rnlfe, 1902, 1 Ch. 342. 
 
 (o) Bi'rtM. Bull, 1895, 1 Q B. 276; Slrapp y. Bull, 1895, 2 Ch. 1. 
 
 Ip) Boehmv. Goodall. 1911. 1 Ch. 155. 
 
 (}) Brinklow v. Singleton, 1904, 1 Ch. 048. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 129 
 
 but SO as to include money, lawfully borrowed for the 
 purpose of carrying! on the business {r) . On the other 
 hand, a receiver and manager not so appointed, but who 
 is appointed by (e.g.) a mortgagee in the ordinary way, 
 is not entitled to any indemnity, — Scil., because he incurs 
 no personal liability, but is merely an agent for his prin- 
 cipal (s) . 
 
 Now, if the receiver is entitled to be indemnified, then 
 also the creditors, dealing with the receiver in connection 
 with the estate, are entitled (by subrogation) to be paid 
 their debts out of the estate; but that right of the general 
 creditors, even where it exists, is not (in the case of a 
 company) available as against the debenture holders, or 
 other the secured creditors of the company (<). Also, 
 a loan which was ultra vires the receiver would not (under 
 the doctrine of subrogation) be entitled to be paid or re- 
 paid out of the assets of the company, — Scil., in com- 
 petition with any of the other creditors of the com- 
 pany {u), but only (if at all) by subrogation to the rights 
 of the creditors (if any) whose debts had b^een, in fact, 
 discharged by, means of the loaa (x). 
 
 Where the executor or trustee has no right to carry on Executors 
 the business of the deceased testator, and he nevertheless t^"Z™?™ 
 
 1/1 \ ' (* ■ ^ 1 11 • ^^^ business, — 
 
 carries it on, he (the executor), if entitled at ail to an m- and making a 
 demnity, will not be entitled to an indemnity as a matter i^^^^^t^'t 
 of course, — Whence it follows, that (in such a case) the tion according 
 creditors have no right (by subrogation or otherwise) to ^^^®?^^" 
 be paid out of the assets of the teetator (?/) ; and if (in have not 
 such a case) the executor makes a loss and makes also a power to carry 
 gain, he is not entitled to set off the loss against the 
 gain {z), but is personally liable to make good the loss. 
 And it is precisely in these respects, that an executor (or 
 trustee), who carries on the business under an express 
 or implied power in the will to do so, differs from (and is 
 
 (r) Walifax Sank v. British Power, 1907, 1 Ch. 528; and see {S.C.), 
 1910, 2 Ch. 470. 
 
 (s) Owen V. Cronk, 1895, 1 Q. B. 265. 
 
 (t) In re Wrexham, #c. S. C, 1899, 1 Ch. 400. 
 
 (k) Fortsea Island v. Barclay, 1895, 2 Ch. 298. 
 
 (x) Blackburn Societi/ v. Cunlifes, 22 Ch. D. 71. 
 
 (y) Strickland v. Symons, 26 Ch. D. 245. 
 
 (e) Wiles v. Gresham, 1 Drew. 258. 
 
 S. K 
 
130 
 
 THE ORIGINALLY EXCLUSIVE JUEISDICTION . 
 
 How varying 
 profits and 
 losses are to 
 be dealt with, 
 — in case of 
 business being 
 lawfully 
 carried on. 
 
 more favourably circumstanced than) an executor or 
 trustee who carries on the business without any such 
 power {a) . 
 
 When the executors carry on a trade under a power or 
 direction in that behalf contained in the will, and there 
 are successive tenants for life and remaindermen, succes- 
 sively entitled under the will, the will ought to provide 
 (as between these beneficiaries) for the possible alternation 
 of profit and loss during the successive tenancies; and if 
 the will has neglected to so provide, then the losses, (1) so 
 far as they are ordinary losses (such as bad debts), will 
 be made good out of the subsequent profits (6); but (2) so 
 far as they are not of that character, they will be written 
 off against (and in reduction of) capital (c), semble. 
 
 Remedies of 
 
 cestui que 
 
 trusty in event 
 
 of a breach of 
 
 trust. 
 
 (1) Personal 
 
 remedies. 
 
 (2) Beal 
 remedies. 
 
 The remedies of a cestui que trust (for a breach of 
 trust) comprise. Firstly, the remedy in respect of the 
 personal liability of the trustees (which is a joint and 
 several liability) ; and (in certain cases) even the solicitors 
 for the trustees (d), — and third parties generally (e), — 
 will (in respect of the breach of trust) be substantively 
 liable to the cestuis que trustent, and also collaterally 
 liable to the trustees themselves, — Scil., for negligence (/). 
 And, nota bene, although these third parties (where liable 
 at all) would be liable as constructive trustees only, yet 
 (under exceptional circumstances) they have been held 
 to be liable as express trustees, although de son tort 
 only (g), — and sometimes even as fraudulent receivers (fe) : 
 And comprise, Secondly, the following other remedies, — 
 sometimes called the real remedies of the cestuis que 
 trustent, because they affect the trust property itself, and 
 in a manner follow it, — That is to sa,y: — 
 
 Firstly, If the alienee of the trust estate is a volunteer, 
 
 (i; Eight of 
 
 trusTestate. ^ then the estate may be followed into his hands (whether 
 
 (a) Scott V. It/on, 34 Beav. 434. 
 
 (*) Upton V. Brown, 26 Ch. Div. 588. 
 
 (c) Frowde v. Hengler, 1893, 1 Ch. 686. 
 
 (d) Blyth V. Flarlgate, 1891, 1 Ch. 337. 
 («) Seynes v. Dixon, 1900, 2 Ch. ."iei. 
 (/) Howell V. Young, 5 B. & C. 2.i9. 
 (g) Barney v. Barney, 1892, 2 Ch. 265. 
 
 (h) Rolfe T. Gregory, 4 De G. J. & S. 577. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 131 
 
 he had notice of the trust or not); and if the alienee is a 
 purchaser for value (but loith notice), the same rule 
 applies. But, nota bene, this remedy is not availabk, 
 unless the funds are trust funds: And therefore it is not 
 available in the case of mere debts («'), — ^nor (usually) 
 against bankers, in respect of trust funds transferred from 
 the trust account of a customer to the private account of 
 the customer (fc) . And, if the alienee of trust funds is a 
 purchaser for value without notice, and obtains the legal 
 estate, his title cannot be impeached {I); but if he has, 
 in the first instance, taken only an equitable conveyance, 
 the trust estate may, in the general case, be followed (m); 
 nor (in such latter case) would it help the purchaser, even 
 although he should afterwards (on discovering the trust) 
 have obtained a voluntary conveyance of the legal 
 estate (to) : Secus, if such subsequent conveyance is not 
 purely voluntary (n) . 
 
 Nota Bene, — If a trustee (who has been guilty of a ^^'^^'^^ °* 
 breach of trust) makes good the breach out of his own goodbytmstee 
 property (although it should be immediately prior to his ii™seif. 
 own bankruptcy), the trust estate is, in general, entitled 
 to retain the benefit of that: That is to say, the general 
 creditors of the trustee cannot set aside the transaction 
 as a fraudulent preference (o), — Scil., Because it is con- 
 sidered an honest fraudulent preference (p). Also, where 
 the breach of trust consists in having made an un- 
 authorised investment, the trustee may (or his executors 
 may) sell the investment, — towards recouping his liability 
 for the breach (q) ; and the sale may, in general, be made 
 without first giving to the cestiiis que tnistent any notice 
 of the intention to sell (r), — an unauthorised investment 
 being (in that particular) different from an insufiicient 
 but authorised investment (s) . 
 
 (i) Lister v. Stuhbs, ih Ch. Div. 1. 
 
 (k) Coleman v. Bucks Bank, 1897, 2 Ch. 243. 
 
 [J) .Frnser v. Murdoch. 6 App. Ca. 855. 
 
 \ni] Carter v. Carter, 3 K. & J. 617. 
 
 («) Taylor v. Susiell, 1892, A. C. -lil. 
 
 (o) Ex parte Stuhbins, 17 Ch. Div. 58. 
 
 [p) Small V. Bradley, 2 P. Wins. 427. 
 
 (q) Bower v. Bank^, ItOl. 2 Ch. 4S7, 496. 
 
 ()■) In re Jenkin- and Banda'l, 1903, 2 Ch. 362. 
 
 (s) Briest v. Uppleby, 42 Ch. D. 351. 
 
 k2 
 
132 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (2) Eight of 
 following the 
 property into 
 which the 
 trust fund has 
 been con- 
 verted. 
 
 Secx)ndly, If the trust estate has been tortiously dis- 
 posed of by the trustee, the cestui que trust may also 
 follow the property (whether land or any other property) 
 that has been substituted in its plaoe, — Scil., so long as 
 the substituted property can be traced (f). Money even 
 may be followed by the rightful owner, — also bills and' 
 notes, — unless where they have been paid away or nego- 
 tiated without notice of the trust (m) ; and, in fact, the 
 only difference between money on the one hand and notes 
 and bills on the other is, that money is not ear-marked, — • 
 and therefore cannot (except under peculiar circumstances) 
 be traced (x); but notes and bills, from carrying a 
 number or a date, can (in general) be identified by the 
 owner without difficulty {y) . But the necessity for 
 identification does not arise, where the trust property is 
 still in the hands of the trustee, — Scil., Because if the 
 trustee mixes the trust money with his own money, the 
 cestui que trust is entitled to every portion of the blended 
 property which the trustee cannot prove to be his own (2). 
 
 If the trust estate has been invested (under an express 
 power in that behalf) in the purchase of land, and the 
 trustee adds money of his own in order to make up the 
 full purchase-moneys, — or raises such extra money by an 
 "attempted mortgage" of the purchased lands, — He (the 
 trustee), and also his mortgagee, have a right to be in- 
 demnified out of the purchased property the extra money 
 so paid (or raised) ; but their right of indemnity is sub- 
 ject to the prior right of securing the full amount of the 
 trust money, — and (subject to such prior right, and to 
 the right of indemnity) the purchase enures wholly for 
 the benefit of the trust (a) . Also, if the trust estate has 
 been wrongfully applied in the purchase of land, — And 
 afterwards the trustee dies intestate and without heirs; 
 and the land accordingly escheats, — if freehold, to the 
 
 {() Wilson V. Foreman, 2 Dick. 593. 
 
 (m) In re Eallett ^ Co., 1894, 2 Q. B. 237. 
 
 (:c) Scott V. Stcrman, Willes, 400. 
 
 (j/) £irt V. Burt, 11 Ch. D. 773, u. 
 
 (z) Hancock \. Smith, 41 Ch. Div. 456. 
 
 (a) Worcester Banh v. Blick, 22 Ch. Div. 255. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 133 
 
 crown; or if copyliold, to the lord, — The land may still 
 be followed notwithstanding (&). 
 
 Thirdly, If a trustee who has been guilty of a breach i^^-J'^l^S'?j!p 
 of trust has any beneficial interest under the trust instru- equitable) of 
 ment, — and his interest is equitable, — the Court will not ^^^^g*®^' 
 allow him to receive any part of the trust fund in which interest of the 
 he is iequitably interested, and relative to which the breach g^^^*^'*' 
 of trust has been committed (c), until he has made good paxticipatiag 
 the breach of trust, — which remedy is called "impound- trust, maybe 
 ing" his beneficial interest ((i) ; but the Court cannot "impounded." 
 apply this remedy, if (or so far as) the trustee's beneficial 
 interest under the deed or will is legal (e), — " the Court 
 having no power to lay hold of the legal interest in order 
 to recoup the breach of trust." In like manner, the bene- 
 ficial interest of any Cestui que trust (who has participated 
 in the breach of trust) may be impounded to make good 
 the breach, — Scil., if such interest is equitable (which 
 it usually is)(/); and this remedy is now available in 
 the case of a married woman beneficiary, even where she 
 is restrained from anticipation (g) . Also, and upon the 
 like principle, legatees of residue (who are indebted to 
 the estate) must first pay up their debts before they are 
 permitted to share in the residue (h), — and that is so, even 
 where the debts in question are statute-barred (^) ; and 
 even specific legatees are subject to this rule(fc). Also, 
 covenantors in settlements (I), — and in separation deeds 
 (to), — must fijst make good their breaches of ■covenant, 
 before they will be permitted to receive their beneficial 
 interests (whether legal or equitable) under the deed. 
 
 The equitable right of impounding the beneficial 
 interest has priority over the right of a mortgagee of the 
 
 (A) Sughes V. Wells, 9 Ha. 749. 
 
 (c) In re Towndroiv, Gratton v. Machen, 1911, 1 Ch. 662. 
 
 (d) Woodyatt v. Oresley, 8 Sim. 180. 
 
 (e) Fox V. BucJcley, 3 Ch. Div. 508. 
 
 (/) Raby v. Ridehatgh, 7 De G. M. & a. 104. 
 
 (g) Holt^. Bolt, 1897, 2 Ch. 525. 
 
 (A) Cowtenay v. Williams, 3 Ha. 539. 
 
 (i) Akerman v. Akerman, 1891, 3 Ch. 212. 
 
 \h) Taylors. Wade, 1894, 1 Ch. 671. 
 
 (Z) Fr^dy t. Rose, 3 Mer. 86. 
 
 [m] Bavies v. Tagart, 1900, 2 Ch. 64. 
 
134 
 
 THE OEIGINALLY EXCLUSIVE JURISDICTION. 
 
 beneficial interest of the beneficiary {n) ; and also over 
 the right of the trustee in bankruptcy of the bene- 
 ficiary (o), — Sail., when the indebtedness is a true in- 
 debtedness {i.e., a debt, and not a mere liability (p)) of 
 the beneficiary. But if (and so far as) there has been an 
 appropriation to meet and answer the beneficiary's legacy 
 or share, the mortgagee would, semble, have priority over 
 the equitable right of impounding {q) . 
 
 Interest 
 payable by 
 trustees, on 
 a breach of 
 trust. 
 
 If a trustee is guilty of any undue delay in investing 
 or in transferring the fund, he will be answerable to the 
 cestui que trust for interest during the period of his 
 laches, — the rate being usually four (and not three) per 
 oent.(?-). Also, the Court will charge more than four 
 per cent, (that is to say, will charge five per oent.), — 
 and will still charge that (s), — upon balances in the hancfe 
 of a trustee, in the following cases, that is to say: 
 
 (1) Where the trustee ought to have received more^ 
 
 — as where he has improperly called in a mort- 
 gage carrying five per cent. ; 
 
 (2) Where he has actually received more than four per 
 
 cent, {t); 
 
 (3) Where he must be presumed to have received more, 
 
 — ^as if he has traded with the money ; and 
 
 (4) Where the trustee is guilty of direct breaches of 
 
 trust or of gross misconduct (m) . 
 
 The Court will also, in a proper case, charge a trus- 
 tee {x), — ^and also an executor («/), — with Gompound in- 
 terest ; and half-yearly rests will sometimes be directed in 
 the account, — but not as a rule (z) . And when a trustee 
 
 (rt) Bolton Y. Curm, 1896, 1 Ch. 541. 
 
 (o) Titrner v. Watson. 1896, 1 Ch. 925. 
 
 (p) Zee V. Binns, 1896, 2 Ch. 584. 
 
 (?) Supra, p. 54. 
 
 (>•) Owen V. Eiehmond, 1895, W. N. p. 29. 
 
 (s) In re Davis, 1902, 2 Ch. 314. 
 
 (t) Emmet V. Emmet, 17 Ch. Diy. 142. 
 
 (m) Townendv. Townend, 1 Giff. 212. 
 
 («) Barclay v. Andrew, 1899, 1 Ch. 674. 
 
 [y) Emmet v. Emmet, supra. 
 
 {%) Burdick v. Garrick, L. E. S Ch. App. 233. 
 
TRUSTEES S,TANDING IN A FIDUCIARY RELATION. 135 
 
 has himself traded with the trust money, the cestui que 
 trust may (at his option) take, in lieu of the iive per 
 cent, interest, the whole of the trade-profits (a), — Leaving 
 all the trade-losses to remain with the trustee (&); but, 
 of course, a trader who has borrowed the trust money 
 from the trustee, is not subject to any such rule, — even 
 although he knows that the money lent to him is trust 
 money (c) . 
 
 The debt created by a breach of trust being only a Remedies 
 simple contract debt, the trustee's acceptance by deed of ^ugtee— for 
 the trust not making it a specialty debt (d), — The remedy a breach of 
 for it will now (under s. 8 of the Trustee Act, 1888) be (^g'^y^^*' 
 barred after six years from the date of the breach, — or 
 will be then (in effect) barred, — Scil., unless where the 
 breach of trust is a fraudulent one; and a fraudulent 
 trustee will not, now, be released (e), even if he go bank- 
 rupt, and obtain his discharge under s. 30 of the Bank- 
 ruptcy Act, 1883. 
 
 The remedy against a trustee may also be barred by the (2) By 
 
 , . , ,T • /j:\ 1 J. tu I, acquiescence; 
 
 cestui que trust s acquiescence (j) ; but there can be no 
 acquiescence without knowledge (g), — Scil., Because 
 acquiescence is (or amounts to) an implied release, and 
 even an express release (executed without full knowledge) 
 would not be binding (h) . Also, the concurrence of the (3) By 
 cestui que trust in a breach of trust is, of course, a full breach of 
 discharge of the trustee from all liability therefor, to such trust. 
 concurring person (and to all others subsequently claim- 
 ing under him) (i), — Excepting that concurrence implies 
 capacity, and persons under disability (as married 
 women (fc), or infants (Z)) may still successfully proceed 
 
 concurrence in 
 
 (a) Jones v. Foxall, 16 Beav. 392. 
 
 (b) Wiles V. Gresham, 1 Drew. 258 ; Deines v. Scott, i Euss. 195. 
 
 (c) Stroud V. Gimjer, 2S Beav. 1 30. 
 
 {t) Holland v. Holland, L. R. 4 Oh. App. 449. 
 
 (e) Munns v. Sum, 35 Ch. Div. 266. 
 
 (/) London Finanoial Association -v . Kelk, 26 Ch. Div. 107. 
 
 [g) Jacques Cartier v. Montreal City Banh, 13 App. Ca. 111. 
 
 (A) Walker v. Symmonds, 3 Swanst. 1, 463. 
 
 (i) Bridger v. Deane, 42 Ch. Div. 9. 
 
 {k) ParicesT. White, 11 Ves. 221. __ 
 
 (I) Wilkinson v. Parry, 4 Russ. 276. 
 
136 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 against the trustee for the breach of trust, — unless they 
 have themselves been actively participant therein (m) ; In 
 which latter case, it would be fraudulent on their parts to 
 seek relief. 
 
 But, as regards married women, who had been actively 
 participant in the breach, — Where they were entitled for 
 their separate use and without power of anticipation (w), 
 they sometimes proceeded, — and proceeded successfully, 
 — against the trustee. It is true, that some of the judges 
 demurred occasionally to that (o), — ^and occasionally gave 
 the trustees liberty to retain their costs {e.g.) out of the 
 married woman's income notwithstanding the restraint. 
 But, in the general case, the trustee was, in effect, remedi- 
 less against such a cestui que trust, — Until the Married 
 Women's Property Act, 1893 (p) : Whereby it was en- 
 acted (by s. 2), that a married woman's separate estate, 
 although restrained, should be liable for such costs(g), — 
 lSc^7., for the costs of litigation instituted by her (r); and 
 not therefore also for her costs of defence (s), — or for 
 her costs of appealing {t). And the Trustee Act, 1893(m), 
 s. 45 (re-enacting the like provision contained in the 
 Trustee Act, 1888, s. 6), has now provided, tliat when 
 the breach of trust has been committed at the " instigation 
 or request" (or with the "written consent") of the 
 married woman (x), the Court may order her beneficial 
 estate or interest to be impounded, — Scil., by way of 
 remedy for the breach: 
 
 (4) By A cestui que trust may also, by subsequent confirma- 
 
 of breach 0? tion, prevent himself from taking proceedings against 
 
 trust. his trustee for a breach of trust ; but the purported 
 
 confirmation will not be binding on him, unless he had 
 
 m) Sawyer v. Sawyer, 28 Ch. Div. 595. 
 n) Bateman v. Faher, 1898, 1 Ch. 144. 
 o) Ellis V. Johnson, 31 Oh. D. 532. 
 p) 56 & 67 Vict. c. 63. 
 q) Pawley v. Pawley, 1905, 1 Ch. 593. 
 )•) In re Lumley, 1894, 3 Ch. 135. 
 s) Eood-Barrs v. Cathcart, 1895, 1 Q. B. 873. 
 t) Eood-Barrs v. Seriot, 1897, A. C. 177. 
 ■ 56 & 57 Viot. 0. 53. 
 Griffith V. Btighes, 1892, 3 Ch. 106. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 137 
 
 a full knowledge of the facts of the case {y), — A con- 
 firmation being (in this respect) exactly like a releajse (0) . 
 
 A trustee is entitled to have his accounts examined and Settlement of 
 settled, — and at the cost of the trust estate (a) : That is 
 to say, if the cestui que trust is satisfied, that nothing 
 more is due to him, he ought (being sui juris) to settle 
 the account, — For he is not to keep a Chancery suit hang- 
 ing indefinitely over the head of the trustee: And upon ^®l.®ff®."?^^ 
 the question, whether a trustee (including an executor) is * ' "^ 
 entitled on the conclusion of his trust (or executorship) to 
 demand a release under seal, or must be content with the 
 common receipt as his acquittance, — the better opinion 
 (and the practice also) is, to give him a release under 
 seal (&); and, semhle, whenever any indemnity may law- 
 fully be required, the discharge should be by release under 
 seal, — the indemnity and the release being included in 
 one and the same deed, of course. 
 
 As a rule, settled accounts are not opened {i.e., taken ®"^^''fY^^ 
 over again throughout, or in toto) ; but in an action for an *" suymg. 
 account, — or which involves an account, — when the plea 
 of settled account is put forward in defence (c), — The 
 practice of the Court is, upon proof of one clear omission 
 or insertion that is erroneous, to give liberty to the plain- 
 tiff to surcharge the omission and to falsify the insertion, 
 together with all other erroneous omissions and insertions: 
 Which liberty is commonly called the " liberty to sur- 
 charge and falsify" (d); and the errors need not be of a 
 fraudulent (e), — but must be of a substantial (/), — charac- 
 ter: But the account will be readily opened in toto, if 
 the defendant (the party accountable) is in a fiduciary 
 relation (g) . 
 
 Under the Trustee Act, 1893 (56 & 57 Vict. c. 53), JlT/^^lf"*' 
 
 r»ir At • • 1 1 •! - • • 1 • lo93, — tru3- 
 
 ss. 2,0 — 41, — continuing the like provisions contained m tee's release 
 
 under, on 
 
 (y) Burrows v. Walk, 6 De G. M. & a. 254. 
 (2) Walker t. Symmonds, supra. 
 (a) Cooper y. Skinner, 1904, 1 Ch. 289. 
 (*) Se Cater's Trusts, 25 Beav. 366. 
 
 (c) Bunter v. Bowling, 1893, 1 Ch. 391. 
 
 (d) Blai/rave v. Mouth (Mortgage for Bill of Costs), 2 K. & J. 509, 522. 
 («) Williamson v. Barbour, 9 Ch. Div. 529. 
 
 (/) Lambert y. Still, 1894, 1 Ch. 73. 
 
 (}) Coleman v. Mellerah, 2 Mao. & G. 309. 
 
138 
 
 THE ORIGINALLY EXCLUSIVE JUEISDICTION . 
 
 appointment 
 of new trus- 
 tees. 
 
 the Trustee Act, 1850 (h), and in the Trustee Extension 
 Act, 1862 («■), — the Court may appoint a new trustee or 
 new trustees, either in substitution for or in addition to 
 any existing trustee or trustees, — whenever it is expedient 
 to make such appointment, and it is inexpedient, difficult, 
 or impracticable to 'do so without the aid of the Court. 
 But, nota bene, as regards any breach of trust then already 
 committed (or liability then already incurred), no such 
 appointment is to operate further or otherwise (as a dis- 
 charge to the retiring trustee) than the like appointment 
 under an express power in the instrument of trust would 
 have done. And it is to be here observed, Firstly, that a 
 new trustee, as regards all (if any) breaches of trust which 
 have happened or been committed before his appointment, 
 is under the like duty to recover the outstanding damages 
 therefor, as he would be under, if these damages were 
 some original parcel of the trust property still left out- 
 standing (fc), — only if the proceedings would be hopeless 
 of any good result, the new trustee need not proceed at 
 all (I) . And it is to be here observed, Secondly, as regards 
 a trustee who has retired, although he will not, in general, 
 be responsible for any breach of trust committed subse- 
 quently to his retirement, still if it appear that the breach 
 of trust was, in fact, contemplated at the time of his re- 
 tirement, and that his retirement was the means adopted 
 to facilitate its being committed, he will (or may) be 
 held liable for that (m) . 
 
 Provisions of 
 the Convey- 
 ancing Acts, 
 1881, 1882 
 and 1892 ; 
 
 The occasions for having recourse to the Trustee Acts, 
 1850 and 1852, were latterly very much diminished by 
 and in consequence of the Conveyancing' Act, 1881 (w), 
 ss. 31 — 34, which provided for the appointment of new 
 trustees [by the person in that behalf referred to in the 
 Act], and for the vesting of the trust property in these 
 new trustees jointly with any of the old (and continuing) 
 trustees, — the appointor merely making for ■ this latter 
 purpose a declaration that the property should so vest; and 
 
 (h) 13 & 14 Vict. c. 60. 
 
 (i) 1.5 & 16 Vict. 0. 55. 
 
 (A) Hobday v. Peters, 28 Beav. 603. 
 
 (I) In re Forest of Sean Coal Co., 10 Oh. D. 450. 
 
 (m) In re Broaden, 38 Ch. D. 546 ; Heady. Gould, 1898, 2 Ch. 250. 
 
 («) 44 & 46 Vict. 0. 41. 
 
TRUSTEES STANDING IN A FIDUCIARY RELATION. 
 
 139 
 
 the new appointment operated, in general, to release the 
 retiring trustee or trustees; and these provisions of the 
 Act of 1881 were retrospective. Also, under the Con- 
 veyancing Act, 1882 (o), s. 5, as amended by the Con- 
 veyancing Act, 1892 (p), 8. 6, on the appointment of new 
 trustees, separate sets of trustees might have been 
 appointed for separate properties held upon sepatate or 
 distinct trusts (g) : and all these provisions (as well of And now of 
 the Conveyancing" Act, 1881, as also of the Conveyancing 1893/^ " ' 
 Acts, 1882 and 1892), although nominally repealed, are 
 (in substance) continued, by the Trustee Act, 1893, ss. 
 10— 12(r). 
 
 Also, apart altogether from legislation, the Court Removal of 
 always had (and still has) an inherent jurisdiction, to g™eraUy. 
 remove old trustees and to appoint new ones in their 
 places (s) ; and the Court assumes (and also exercises) 
 jurisdiction, where Ith© interests of the beneficiaries appear 
 to require it, — and even in cases where no personal fault 
 is attributable to the old trustees (t), — and even as against 
 trustees who are executors (u), — Soil., Because' the 
 interests of the trust are the matter of paramount regard 
 with the Court. And, e.g., if a trustee becomes a bank- 
 rupt, that is a ground for his removal (u) ; but it does 
 not follow,, that the Court will, in fact, remove him on 
 that ground, — the Court only doing it where the security 
 of the estate may appear to require the removal {x) . 
 
 And here it is important to observe, that, upon the 
 death of the last survivor of two or more trustees, his 
 legal personal representative may, — in general, but not 
 invariably {y), — either accept (and continue to execute) 
 
 (0) 45 & 46 Vict. xy. 39. 
 ^ (jo) 55 & 56 Vict. c. 13. 
 ' (q) In re Parker's Trusts, 1894, 1 Ch. 707. 
 
 ()■) Wheelers. Se Rochow, 1896, 1 Ch. 316. 
 
 (s) In re Wrightson, 1908, 1 Oh. 789. 
 
 {t) In re Moss's Trusts, 37 Ch. Diy. 518. 
 
 (m) In re Ratcliff, 1898, 2 Ch. 352. 
 
 \v) 66 & 67 Vict. 0. 53, s. 25. 
 
 \x) Bowen v. Phillips, 1897, 1 Ch. 174. 
 
 [y) In re Orunden and Meux, 1909, 1 Ch. 690. 
 
140 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 the trust (z) or decline to do so (a), — Scil., until there is 
 a new appointment of trustees (6). 
 
 Trustee Act, 
 1893,— trus- 
 tee's release 
 under, on 
 payment or 
 transfer into 
 Court. 
 
 Under the Trustee Act, 1893, s. 42 (continuing" the 
 like provisions contained in the Trustee Relief Acts, 
 1847, 1849 (c)), trustees and executors, or the mUjor part 
 of them, may, — on affidavit, and without either action or 
 other legal proceeding, — pay trust moneys into the Bank 
 of England to the account of the Paymaster-General 
 (Chancery Division) in the matter of the particular trust, 
 • — and also transfer or deposit trust stocks and securities 
 into or in the name of such Paymaster-General, a pro- 
 ceeding which is, of course, only to 1)6 taken in a case of 
 difficulty (d) : and a life assurance company also may (but 
 only in the like case of difficulty) pay the policy moneys 
 into Court (e). After such payment or transfer into 
 Court (and to the extent thereof), the trustees are dis- 
 charged of all control over the trust, and of all duties as 
 trustees or executors (/); but they must give the cestuis 
 que trustent notice of their having made the payment or 
 transfer; and thereafter the Court ta"kes charge of the 
 trust fund and invests it, — and upon petition (or, as the 
 case may be, on summons) by any person claiming title 
 thereto, the Court will (upon notice to the trustees or 
 executors) make an order for the payment out of the 
 fund, — first deciding any question of law or of fact inci- 
 dental to such payment out, — unless (which rarely hap- 
 pens) the Court finds that the difficulties are such as to 
 justify the institution of an action for the determination 
 of the question involved (g) . 
 
 Public 
 Trustee, — 
 constitution 
 of; 
 
 By the Public Trustee Act, 1907 (6 Edw. VII. c. 55), 
 — an Act which came into operation on the 1st January, 
 
 {z) In re TTaidanis, 1908, 1 Ch. 123. 
 
 (a) Leffff T. MacTcrell, 2 De G. P. & J. 551 ; Robson v. Flight, i De G. 
 J. & S. 608. 
 
 {b) In re Routledge, 1909, 1 Ch. 280. 
 
 (e) 10 & 11 Vict. c. 96 ; 12 & 13 Vict. c. 74. 
 
 [d) Re Hood, 1896, 1 Ch. 270. 
 
 («) 69 & 60 Vict. 0. 8. 
 
 (/) Tie Coe, 4 K. & J. 199. 
 
 (^) Re Bloye, 1 Mac. & G. 488. 
 
TKUSTEES STANDING IN A FIDUCIARY RELATION. 
 
 141 
 
 1908, — a public trustee has been established (s.l), — and 
 he is a corporation; and (by s. 2) such trustee may (on 
 being requested to do so) accept the administration of 
 estates of small value (Scil., estates not exceeding, at the 
 date of the application (h), £1,000), — and may accept also 
 the administration of the property of convicted felons. 
 But (save as aforesaid) he is not to accept the administra- 
 tion of any trust which involves the carrying on of any 
 business, — nor the.administration of an insolvent estate, — 
 nor the execution of the trusts of any " Deed of Arrange- 
 ment," — nor the execution of any religious or charitable 
 trust. And when he accepts any trust, he may do so, and varieties 
 either as a custodian trustee merely or as an ordinary 
 trustee. 
 
 of. 
 
 Where the public trustee has been appointed a trustee, PuMc 
 and his appointment has been only as a custodian trustee, ^g is a cus- 
 — Then (by 6. 4) all the trust property is to be transferred todian trustee, 
 to and vested in him, as if he were the sole trustee; and relatively to ' 
 all the securities and documents of title belonging to the ^J?^,'^'™/™^'"*' 
 trust or relating to the trust property are also to be 
 delivered over into his sole custody; and the private 
 trustees of the deed or will (and who in the Act are 
 called the "managing trustees") continue, in that case, 
 to execute the trusts,- — the custodian trustee concurring 
 only with them (where and so far as his concurrence is 
 necessary), and affording them access to (and reasonable 
 inspection of) the securities and documents of title. 
 
 Where the public trustee has been appointed a trustee. Public 
 and he has been appointed an ordinary trustee, — Scil., by t^sanOTdi™ 
 the deed or will creating the trust, — he is like any other naiytrustee,— 
 ordinary trustee, — excepting that he may exercise limited ^°^^ ™ ° ' 
 judicial powers subject to appeal (i) ; also, he may be either 
 the sole trustee or one of several co-trustees; and on any 
 appointment of new ordinary trustees, the public trustee 
 may be appointed either as one of the new trustees (k), or 
 as the sole new trustee (s. 5, sub-s. 1 (I)). Also, where 
 
 (h) In re Severeux, Toovey v. P. T., 1911, July 29, The Times Report. 
 
 (i) In re Oddy. 1911, 1 Ch. 632. 
 
 (k) In re Xensit, 1908, W. N. 23.'i. 
 
 {[] In re Leslie's Ilaisep Estates, 1911, 1 Ch. 611. 
 
142 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 and retirement the publio Itruste© has been appointed (either originally or 
 ^the other subsequently) a co-trustee with others, these others may 
 (if they choose to do so) afterwards retire, leaving the 
 public trustee to remain the sole trustee (s. 5, sub-s. 2). 
 The public trustee (when appointed by will) may obtain 
 a grant of probate or of administration (s. 6, sub-s. 1); 
 and an executor or administrator who has already obtained 
 probate or administration may (subject to observing cer- 
 tain formalities) transfer to the public trustee the whole 
 future administration of the estate, — and (in that way) 
 escape from all liability in respect of the further admink- 
 tration "(s. 6, sub-s. 2). 
 
 But, nota 'bene, the publio trustee, being a corporation, 
 cannot be (admitted to the copyhold hereditaments (if ainy) 
 which are subject to the trust (m). 
 
 (m) Scriv. on Copyholds, 7th ed., 1896, on p. 137. 
 
143 
 
 CHAPTEE VII. 
 
 DONATIONES MORTIS CAUSA. 
 
 A donatio mortis eausd is a gift, made "in the expeeta- (i) Must be 
 tion of death," and on condition to be absolute only on ^^^^ ™. 
 the death (a) ; and if the donor recovers from the illness death T '°" ° 
 (or, while still living, resumes the possession), the gift (2) On con- 
 will not take effect (h) . '^"i™ *° ^\ 
 
 ^ / come absolute 
 
 on donor*s 
 
 Delivery is essential to the validity of a donatio mortis fnf*i 'j^*"* 
 causa; — and if there be no delivery, the gift (although is essential, 
 intended) is ineffectual (c), — and will not be aided, in 
 equity, in favour of a volunteer (d) : But if only there 
 be delivery (e), the gift will be good, — although the 
 writing (if any) which accompanies it should not be 
 attested at all (/), and although there should be no 
 writing at all (g) ; and there may be annexed to the gift 
 an express condition, — as (e.g.) that the donee shall pay 
 the funeral expenses of the donor (h) . But, nota bene, 
 an antecedent delivery to the donee in the character of 
 bailee will not suffice, unless the quality of the possession 
 be changed before th& death ii) . 
 
 Delivery being essential, it follows, that, without de- what is a 
 livery, neither a testamentary gift (which is ineffectual deUvCTv! 
 as such (/<:)), nor a gift inter vivos (which is ineffectual as (^n to donee 
 such), will be supported as a donatio mortis causa {I), or donee's 
 
 agent. 
 
 {a) Duffi-U V. Elwes, 1 Bligh, N. S. 530. 
 (*) Edwards v. Jones, 1 My. & Or. 233. 
 
 [c) Rigden v. rallier, 2 Ves. Sr. 25S. 
 
 [d) Morgnn v. Malleson, L. R. 10 Eq. 475. 
 
 [e) Ei/pin v. Satlei/, 1892, 1 Q. B. 682. 
 (/) Moore v. Jjartm, 4 Be G. & Sm. 519. 
 (g) Tate v. Gilbert, 2 Ves. Jr. 120. 
 
 (h) Hills V. Sills, S Mee. & W. 401. 
 
 (i) Cain V. Moon, 1896, 2 Q. B. 283. 
 
 [k] Treasury Solieitor v. Lewis, 190IJ, 2 Ch. 812. 
 
 (Z) Edwards v. Jones, 1 My. &Cr. 226. 
 
144 THE OEIGINALLY EXCLUSIVE JURISDICTION. 
 
 Also, delivery to an agent for the donor will amount to 
 
 nothing (m), — for an effective delivery naust be to the 
 
 (b) Delivery donee, or to the donee's agent (n) . And where the chattel 
 
 means^o/^ itself is not delivered, the delivery of a mere ineffective 
 
 obtaining the symbol of it is not sufficient (o), secus, the delivery of 
 
 property. some effective means of obtaining it, — for example, the 
 
 key of a box (p), or (in the case of a chose in action) 
 
 the savings bank book {q), or other essential document (r). 
 
 Examples of Where the key of a box, conta-ining some bonds labelled 
 
 dXSy : " The first five of these bonds belong to and are H. D.'s 
 
 (a) Deliveiy property," was given into the custody of H. D. (who 
 to donor's -^ras the tcstator's housekeeper), — the Court was of opinion 
 
 that the testator gave the key to H . D . in her character 
 of housekeeper only, and for the purpose of talcing care 
 
 (b) Delivery to qj {f jq^ jiig benefit Only (s) . And similarly, where A. 
 coupled with ' (being in his last illness) ordered a box containing wear- 
 retention of ing apparel to be carried to the defendant's house, to be 
 owners ip. delivered to the defendant; and on the next day, the 
 
 defendant brought back the key of the box to A. (who 
 desired it to be taken back, saying he should want a 
 pair of breeches out of the box), — the Court held this also 
 not to be a good donatio mortis causa {t) . 
 
 What may, There cannot, of course, be any danatio mortis causa of 
 
 and what may ^gal estate; and there could not, it seems, be a good dona- 
 ! donatio^^ tio mortis caus.a of South Sea annuities (m), — nor can there 
 be of Government stock {x), railway stock {y), or building 
 society shares {z) . And as regards the donor's own cheque 
 upon his bankers, it appears, that if the cheque is paid 
 before the death (a), — or is presented and (the account 
 being in credit) is acknowledged for payment (although 
 
 (m) Farquharson v. Caw, 2 Coll. C. C. 367. 
 
 («) Shenstone v. Broe/i, 36 Ch. Div. 541. 
 
 (o) Snellgrove v. Baily, 3 Atk. 214. 
 
 {p) Jones V. Selby, Preo. in Ch. 300. 
 
 {q) Bartholomew v. Menzies, 1902, 1 Ch. 680. 
 
 {r) Moore v. Barton, 4 De G. & Sm. 519. 
 
 (s) Trimmer v. Banly, 25 L. J. Oh. 424. 
 
 \t) SawUns v. Blewitt, 2 Esp. 663. 
 
 (m) Waid-y. Turner, 2 Ves. Sr. 431. 
 
 \x) Andreu:s v. Andrews, 1902, 2 Ch. 394. 
 
 ly) Moore v. Moore, L. R. 18 Sq. 474. 
 
 (z) Bartholomew v. Mcnzies, iupra. 
 
 (a) Bolts V. Fearcp, L. K. 5 Ch. Div. 730. 
 
 mortts eaiisii. 
 
DONATIONES MORTIS CAUSA. 145 
 
 not actually paid) before the death (6), — There is a good 
 donatio mortis cceuSd of it: Secus, if the account is over- 
 drawn at the date of the presentation of the cheque, — 
 and there is, consequently, no acknowledgment of it for 
 payment {t), — because, nota bene,, a cheque is not; of , 
 itself, an appropriation (as has been already stated on 
 p. 49, swpra): 
 
 On the other hand, there may be a good donatio mortis, 
 causa of a bond {d), or of a mortgage debt (e), or of 
 cash on deposit at ^ bank(/,). Also, the delivery of a 
 promissory note payable to order, though not en- 
 dorsed {g), — or of a third party's cheque payable to order, 
 though not endorsed Qi), — or of a deposit note (i), 
 although with form of cheque endorsed thereon (Jo), — will 
 constitute a good donatio mortis causa. And where a 
 mortgage deed (with the (accompanying bond, if any) 
 is given up by the dying mortgagee, to the mortgagor, 
 and then the mortgagee dies, — That is a gift (or can- 
 cellation) of the debt (Z) : But where a promissory note 
 has been lost, and the payee directs it to be destroyed 
 when found, and then dies, — that will not, — in the general 
 case (m), although sometimes it will (w), — amount to a 
 gift thereof. 
 
 A donatio mortis causa differs from a legacy in these How a donatio 
 
 respects : — mortis causd 
 
 /INT en / -I ■> \ s- 11*1.1 differs from a 
 
 (1) it takes eiiect \suo modo) from the date ,of the legacy, and 
 
 delivery, — and therefore it need not be proved ^M\Ant^^ 
 as a testamentary act; and vivos. 
 
 (2) It requires no assent on the part of the executor 
 
 (or administrator) to perfect the title of the 
 donee. 
 
 (i) Bromley v. Brunton, L. R. 6 Bq. 275. 
 
 \c) Beaumont v. Ewbank, 1902, 1 Ch. 889. 
 
 [d) Snellgrove v. Baily, 3 Atk. 2H. 
 
 («) Buffieli T. Slwes, 1 Bligh, N. S. 497. 
 
 (/) Andrews v. Andrews, 1902, 2 Ch. 394. 
 
 \g) Vealv. Veal, 27 Beav. 303. 
 
 (h) Clement v. Cheeseman, 27 Ch. Div. 631. 
 
 (i) Griffin v. Griffin, 1899, 1 Ch. 408. 
 
 (k) Duffin V. Duffin, 44 Ch. Div. 76. 
 
 (/) Surst V. Beach, 5 Madd. 351. 
 
 ()») Francis v. Bruce, 44 Ch. Div. 627. 
 
 (m) Edwards v. Walters, 1896, 2 Ch. 157. 
 
146 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Bo-wit A donatio mortis oausq, reeembles a legacy in these 
 
 resembles a reepslots : — 
 
 Sera from a (1) It is revocable during the donor's lifetime (o); 
 ^t inter vivos. (2) It may be made (even at law) to the donor'-a 
 , wife(j9); 
 
 (3) It is liable to the debts of the donor on a de- 
 
 ficiency of assets (g); 
 
 (4) It is subjeot to legacy duty, in all cases where a 
 
 legacy would be so subject; and 
 
 (5) It used to be subjeot to " account stamp duty " (r), 
 
 — and is now subject (in effect) to estate 
 duty(s): 
 
 Which latter duty used to be considered a "testa- 
 mentary expense " (<),-^and so was payable out of the 
 general residuary estate (m) ; but, semble, it is not now 
 so considered, — nor so paid (x) . Also, as jegards settle- 
 ment estate duty, that is not a "testamentary ex- 
 pense " {y), — and therefore will be payable out of the 
 donatio mortis causa itself, — at least, in the general 
 case {z), but not invariably so (a). And as regards pro- 
 perty which is subject to a general power of appointment, 
 if the testatrix does not exercise the power, the estate- 
 duty on that is not a " testamentary expense " of hers (&). 
 
 o) Smith V. Casen, 1 P. W. 406. 
 
 p) Tate T, Leithead, Kay, 658. 
 
 q) Smith v. Casen, supra. 
 
 'r) Thomas v. Foster, 1897, 1 Ch. 484. 
 
 s) Wade v. Wade, 1898, 2 Ch. 276. 
 
 t) Yeo V. Clemow, 1900, 2 Ch. 182. 
 
 u] In re Eadley, 1909, 1 Ch. 20. 
 
 x) In re Eudson, 1911, 1 Ch. 206. 
 
 'y) Travers v. Kelly, 1904, 1 Ch. 363. 
 
 z) Wilson V. Maryon- Wilson, 1900, 1 Ch. 565. 
 
 Sharpe T. Eodgson, 1904, 2 Ch. 345. 
 h) Porte V. Williams, 1911, 1 Ch. 188. 
 
147 
 
 CHAPTEE VIII. 
 
 LEGACIES. 
 
 I'N the case of a general pecuniary legacy, the legatee may Assent to, or 
 sue the executors for it, after the executors have assented f^/'Soy ""^ 
 to it (a) ; and where the legacy is of a debt, and the exe- or share of 
 cutor refuses to sue the debtor for it, the legatee may (on gfect'of"' 
 account of the special circumstances) himself sue for it (b), 
 ■ — the executor being (in that case) added as a co-defen- 
 dant. Also, in the case of a specific legacy, after the exe- 
 cutor has assented thereto, the property vests immediately 
 in the legatee, — Who may thereafter sue for it (c) : And, 
 if the specific bequest be of leaseholds, the assent of the 
 executor is sufficient, without any express assignment (d) . 
 And if the executor (with the consent of the legatee) ap- 
 propriates any specific asset in payment or satisfaction of 
 a general pecuniary legacy, such specific asset thereupon 
 becomes the property of the legatee (e), — with full right 
 to all the net profits from the death (/) : There may also 
 be an effective appropriation to answer a residuary be- 
 quest (^r), — or to answer a settled share of residue (A); 
 and, even in the case of a contingent legacy, there may be 
 such an appropriation, — but not so as to either exempt the 
 residuary estate from its liability for the legacy (^), or to 
 withdraw the appropriated assets from their liability for 
 the debts (/c) . 
 
 (ff) DeeJcs v. Strutt, 5 T. R. 690. 
 
 (b) Beningjield v. Baxter, 12 App. Ca. 167. 
 
 (c) Doe V. Gay, 3 East, 120. 
 
 {d) Thome v. Thome, 1893, 3 Ch. 196. 
 
 (e) Dowsttt V. Culver, 1892, 1 Ch. 210. 
 
 (/) In re West, West v. Roberts, 1909, 2 Ch. 180. 
 
 {g) Morgan v. Sichardson, 1896, 1 Ch. 512. 
 
 (A) Nickels \. Nickels, 1898, 1 Ch. 630; Watson v. Watson, 1901, I Ch. 
 681. 
 
 (j) Fosters. Metcalfe, 1903, 2 Ch. 226; In re Evans and Bethell, 1910, 
 2 Ch. 438. 
 
 (A) Smith T. Day, 2 Mee. & W. 684 ; Noile v. Brett, 2i Beav. 499. 
 
 l2 
 
148 
 
 THE OSIGINALLY EXCLUSIVE JURISDICTION. 
 
 Biatinctions 
 among the 
 three kinds 
 of legacies. 
 
 Legacies being either general, specific, or demonstrative, 
 the chief points of difference among them are the fol- 
 lowing: — 
 
 (1) If, a,fter payment of the debts, there is a deficiency 
 of assets for payment of all the legacies in full, a general 
 legacy will abate, but a specific legacy will not; 
 
 (2) If the chattel or fund which is specifically be- 
 queathed fails (by alienation or otherwise) during the tes- 
 tator's lifetime, the legatee will not be entitled to any com- 
 pensation out of the general assets (I), — Soil., because 
 nothing but the specific thing itself was given to the 
 legatee (m), — the animiis adimandi not being considered 
 at all (n) . But if the specific thing still exists, although 
 notionally altered, the specific legacy of it will continue 
 good (o) . 
 
 (3) A demonstrative legacy is so far of the nature of a 
 specific legacy, that it will not abate with the general 
 legacies,; — until the fund out of which it is payable is ex- 
 hausted ; and it is so far of the nature of a general legacy, 
 that it will not be liable to ademption, by the alienation of 
 the specific fund primarily designed for its payment (p) . 
 
 Pecuniary 
 legatee and 
 residuary 
 legatee — dis- 
 tinguished. 
 
 A pecuniary legatee is entitled (and, a fortiori, a spe- 
 cific or demonstrative legatee is entitled) to be paid his 
 legacy in priority to the residuary legatee (q) . But a 
 legacy, apparently residuary, may not (for this purpose) 
 be truly residuary; and, for example, where a sum of 
 £4,000 was given to A. for life, with remainder as to 
 £1,000 to X., and as to £1,000 to Y., and as to the "resi- 
 due" to Z., — and the £4,000 diminished, — X., Y., and Z. 
 were all made to abate pari passu (r) . And similarly, 
 where in the like case the "surplus" was given (s). 
 
 {J) In re Slater, 1907, 1 Oh. 665. 
 (m) In re Oittins, 1909, 1 Ch. 345'. 
 («) Frewen v. Frewen, L. R. 10 Ch. App. 610. 
 (o) In re Jameson, 1908, 1 Ch. 111. 
 {p) Vickers v. Found, 6 H. L. Cas, 885. 
 (j) See p. 147, supra. 
 
 {r) Baker v. Farmer, L. R. 4 Eq. 382 ; and see Smith v. Margetts, 190(> 
 W. N. 44. 
 
 (s) Byose v. Dyose, 1 P. Wms. 304. 
 
LEGACIES. 149 
 
 General pecuniary legatees are inter se payable pari Special 
 passu; but the testator may have given to some of them! ^^^'®°°* 
 a priority over the others, — In which latter case (if the legacies, 
 estate is or proves insufficient), those having priority will 
 be paid first, — and will not abate with the others (i); 
 and legacies given in lieu of dower have, in general, 
 priority (m), — Scil., where (and only where) the testator, 
 at the date of his decease, had lands out of which his 
 widow was and remained dowable notwithstanding the 
 will (x) . But a mere direction that any particular legacy 
 is to be paid immediately on the death of the testator («/), 
 — or is to be paid first, and the othera afterwards {z), — 
 will not prevent it from abating (even in the case of n, 
 wife), if it is otherwise subject to abatement; and a legacy 
 given to a creditor in satisfaction of his debt is not now 
 held to be entitled to any priority (a) . 
 
 Annuities given by will are merely legacies in annuity- Ammities,— 
 form, and where the will directs the purchase of a Govern- or direction 
 ment annuity for A. for her life, A. is entitled, in general, to purchase, 
 to take the purchase-money instead of the annuity (fo), — an option,— 
 so that if she survives the testator, and afterwards (and, difference, 
 before receiving the purchase-price) she dies, her legal 
 personal representative will be entitled to receive that 
 price (c) : But if the annuity is given with a restraint 
 on anticipation, and (in case she attempts to anticipate it) 
 it is given over, that will exclude her from taking the pur- 
 chase-price instead {d) . 
 
 Usually, the will merely gives the annuity generally, — Annuitant, — 
 and, in that case, the annuitant is merely entitled to have offaocor^ig 
 the annuity secured, — Scil., by the appropriation of a as the annuity 
 sufficient part of the estate to answer the annuity (e); m^f'ofis'*' 
 
 charged upon 
 
 (t) Wells v. Borwiek, 17 Ch. Div. 798. 
 («) Stahhehmidt v. Lett, 1 Sm. & G. 421. 
 [x] Greenwood v. Greenwood, 1892, 2 Ch. 295. 
 [y) Oppen/ieimv. Sehweder, 1891, 3 Ch. 44. 
 (z) Beeston v. Booth, i Madd. 161. 
 
 (a) Wedmore v. Wedmore, 1907, 2 Ch. 277. 
 
 (b) Stokes T. Cliech, 28 Beav. 620. 
 
 \e) Bailey v. Bishop, 9 Ves. 6 ; Robbins v. legge, 1907, 2 Ch. 8, 
 
 [d) Woodmeston v. Walker, 2 Rues. & M. 197. 
 
 (e) Scott V. Leak, 42 Ch. D. 570 ; Sarbin v. Masterman, 1896, 1 Ch. 
 351. 
 
150 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 the real estate, 
 with ,a trust or 
 direction (or 
 with a power 
 only) to sub- 
 stitute a 
 Government 
 annuity 
 for it. 
 
 and she is not entitled (nor would her legal personal repre- 
 sentative Tse entitled) to receive the purchase-prioe for the 
 annuity {g) . Oocasionally, however, the will charges the 
 annuity on the real estate of the testator: In which latter 
 case, the will sometimes adds a direction to purchase a. 
 Government annuity (in satisfaction of the bequest, and 
 so as to release the real estate from the charge (A)); and 
 sometimes the will merely gives the trustees a power to pur- 
 chase such annuity in the event of their desiring (on a 
 sale of the real estate) to release the real estaite from thie 
 charge (i), — And it appears, that, in the former class of 
 cases, the annuitant is entitled to the pm'chase-prioe of 
 the annuity; but that, in the latter class of cases, the 
 annuitant is entitled to the purchase-price, only in case 
 she survives the completion of the sale, and not other- 
 wise (it) . 
 
 Beal ajid 
 personal 
 
 relative lia- 
 bilities of, 
 for payment 
 of annuity. 
 
 Annuity, 
 charged on 
 " rents and 
 profits" (or 
 on "income"), 
 where a 
 deficiency. 
 
 Where an annuity is charged upon land, the land is 
 sometimes the primary debtor, — and may even be the 
 eodclusive debtor; but far more usually, the land is only 
 auxiliary to the personal estate, and the personal estate 
 is the primary debtor (l). Where the annuity is charged 
 upon the " rents and profits " of the land, the charge 
 will (usually) amount to a charge upon the inheritance. 
 itself (or corpus) of the land {m); more ordinarily, how- 
 ever, the annuity is (on the construction of the will) a 
 charge against the annual rents and profits only, — and 
 in that case, the subsequently accruing rents and profits 
 will not, in general, be liable (w), — although they may be 
 liable (o), — to make up the deficiency of any previous 
 year: But where an annuity is given, and then, " subject 
 thereto," the real estate is given, the annuity is a charge 
 on the corpus (p), and not on the annual rents and profits 
 only. 
 
 {g) Tucker v. Tucker, 1893, 2 Ch. 323. 
 
 (A) Palmer v. Craufurd, 3 Sw. 482. 
 
 (i) Power v. Hayne, L. R. 8 Eq. 262. 
 
 (k) Pitman y. Holborrou; 1891, 1 Ch. 707. 
 
 (I) Trenchard v. Trenehard, 1905, 1 Ch. 82. 
 
 (m) Baker v. Baker, 6 H. L. Ca. 616. 
 
 (n) Boden v. Boden, 1907, 1 Ch. 132. 
 
 (o) In re Howarth, 1909, 1 Ch. 485. 
 
 Ip) In re Walking Settlement, 1911, 1 Ch. 1. 
 
LEGACIES . 
 
 151 
 
 An annuity given to A. simply is for the life of A. Annuities,— 
 only, and an annuity given to A. expressly for his life, ^^i,°e„^'*^' 
 and afterwards to B. simply, is an annuity to A, for his perpetual, 
 life, and then to B. for his life(g); but an annuity 
 may, of course, be so given as to be a perpetual (or fee 
 simple) annuity (r). 
 
 In deciding on all questions relative to legacies, where Construction 
 not charged on land, equity follows in general the rules oflsgaoies. 
 of the civil law (as recognised and acted on in the ,old 
 eOclesiastical Courts); but, as regards legacies charged 
 on land, equity follows the rules of the old common law 
 (which in all cases favoured the heir): Therefore, thei (i) As to 
 Courts favour the vesting of legacies not charged on ^^^ ^' 
 land, — whereby they become transmissible to the legal 
 personal representatives of the legatee (s) ; but a legacy 
 charged on land, even although vested, sinks, in general, 
 for the benefit of the inheritance, in case the legatee dies 
 before the period of payment (t). Also, legacies charged (2) As to 
 on land carry interest as from the date of the testator's "'t^'^^^'- 
 death (u) ; but general legacies not so charged carry 
 interest, in general, as from one year after the testator's 
 death (x), — and that is so, even where the legacy is in 
 lieu of the widow's dower (or free-bench (y)), or where 
 it is given on a series of limitations_(3) . 
 
 But a general legacy given in satisfaction of a debt 
 carries interest as from the death (a), — as does also a 
 general legacy to an infant child not otherwise provided 
 for (b), — Scil., being a legacy given to the infant on attain- 
 ing twenty-one years of age but not any greater age (o) : 
 Also, the legacy of a fund which is "segregated" from 
 the rest of the estate carries interest as from the testa- 
 
 (g) Mansergh v. Campbell, 25 Beav. 544. 
 
 (r) Mansergh r. Campbell, supra. 
 
 (*) Harrison v. Foreman, 5 Ves. 207. 
 
 [t] Benty t. Wrey, 21 Ch. D. 332. 
 
 («) Maxwell V. Weitenhall, 2 P. Wms. 26. 
 
 [x) Child Y. Elsviorth, 2 De G. M. & G. 679. 
 
 (y) Bignold v. Bignold, 46 Ch. D. 496. 
 
 (a) Whittaker v. Whiltaker, 21 Ch. Div. 657. 
 
 (a) Clark v. Seicell, 3 Atk. 99. 
 
 [b] Woodroffev. Moody, 1895, 1 Ch. 101. 
 
 \c) JLbrahams-v. Abrahams, 1911, 1 Ch. 108. 
 
162 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Arrears of 
 interest, — 
 what recover- 
 able. 
 
 Settled 
 residue, — 
 interest on, 
 from the 
 death. 
 
 True residue, 
 what is, 
 and how 
 ascertained ? 
 
 tor's death (d) . Also, if the legacy is of an annuity, 
 it accrues from the d6ath(e), — at least in general(/); and 
 all specific legacies (g), and bequests of specific portions 
 of a specific fund (h), carry interest as from the death. 
 And as regards the rate of interest, that is four (and not 
 three) per cent, in all cases {i). 
 
 Where the property of the testatrix out of which 
 general legacies are payable is reversionary, and the 
 executors (instead of selling the reversion) wait till the 
 reversion 'falls in, the legatee will, in general, be en- 
 titled (fc), — as will also any mortgagee of the legacy (Z), 
 — not merely to six years' arrears, but to all the arrears 
 of interest from one year after the death of the testatrix. 
 But when the legacy is payable only out of some rever- 
 sionary fund, — and is not receivable until that reversion 
 falls into possession, — In such a case, the interest on the 
 legacy only commences to accrue due when the reversion 
 falls in (to) . But no interest at all is, as a general rule, 
 given on the arrears of an annuity {n) . 
 
 Where the legacy is of the residuary personal estate, 
 and it is settled on A. for life, with remainder over, — It 
 appears, that the tenant for life is entitled to interest, 
 the interest being calculated from the death, — and not 
 (as in the case ,of a pecuniary legacy so settled) from one 
 year after the death, — on " the portion of the residue 
 which is not required for the payment of the debts and 
 funeral and testamentary expenses and legacies" (o): 
 That is to say, if £x (portion of the capital), with interest 
 thereon at four per cent, for one year from the testa- 
 tor's death, will be sufficient to meet all the debts and 
 funeral and testamentary expenses and all the legacies, 
 
 (d) Clemens v. Pcarsall, 1894, 1 Ch. 665. 
 
 (e) Gibson v. Soft, 7 Ves. 89. 
 (/) Bignold v. Bignold, supra. 
 
 [g) Barrington v. Tristram, 6 Ves. 345. 
 
 (h) Mullins v. Smith, 1 Dr. & Sm. 210. 
 
 (i) IVood V. Bryant, 2 Atk. 523. 
 
 {/c) Blackford v. Woraley, 27 Ch. Biv. 676. 
 
 {!) Smith V. Hill, 9 Ch. D. 143. 
 
 (m) Earle v. Bellingham, 24 Beav. 448. 
 
 in) Blogg v. Johnson, L. R. 2 Ch. App. 225. 
 
 (o) Allhusm V. Whittell, L. E. 4 Eq. 295. 
 
LEGACIES. 163 
 
 then the " true residue" at the death is the whole estate 
 lees £x; and the itenant for life (in respect of his title 
 to, the income) is entitled to the income of the whole 
 estate less only the £x. 
 
 Where a testator gives his residuary estate equally Hotchpot 
 among his children /subiect or not subiect to a life interest clause,— effect 
 in his widow), — and directs that, for the purpose of pro- interest, 
 ducing equality, -any sums which he shall have advanced 
 to any child shall be brought into hotchpot and accounted 
 for as part of his (the child's) share, — In such a case, in- 
 terest at the rate of four per cent, per annum is payable 
 on the amount of the advances, the interest being com- 
 puted as from the period when the estate is to be divided 
 (being usually the date of the testator's widow's 
 death (p)). 
 
 Where a man gives a legacy (or a share of residue) to Legacy to 
 his wife, subject to her maintaining the children, — That totr'ust^or''*'' 
 is a trust, and the Court enforces the due execution of the condition to 
 trust {q) : That is to say, if the maintenance of the ^uiren. 
 children is taken from the mother (on account of, say, 
 her immoral life), the Court will give her part (and a 
 sufficient part) of the legacy, and will keep (or apply) 
 only the rest for the children: But while the children 
 are with their mother, they shall have nothing, — save only 
 an account (r) . 
 
 Where there is a legacy of shares, and there is an accre- Accretion to 
 tion thereto, — either by- the payment of a bonus or ^^aoy,— 
 otherwise, — The question, whether such accretion belongs 
 as capital to the estate of the testator, or to the legatee of 
 the shares; and the further question (where the accretion 
 belongs to the legatee, and the legacy is given to one for 
 life, with remainder to another), whether the accretion 
 belongs wholly to the legatee for life as income, or is to be 
 treated as capital added to the legacy, — These questions 
 have been answered as follows: — Firstly, the accretion, whether it 
 if declared before the testator's death, will form part of |,1ththe°°* 
 
 legacy. 
 
 (p) MiddUton v. Moore, 1897, 2 Ch. 169 ; and (for an intestacy) Ford 
 v. Ford, 1902, 2 Ch. 605. 
 
 (j) In re G. (Infanta), 1899, l.Ch. 719. 
 [r) Costahadie v. Costahadie, 6 Ha. 410. 
 
154 
 
 THE ORIGINALLY EXCLUSIVE JUEISDICTION . 
 
 And whea it 
 is to be 
 regarded as 
 income or as 
 capital. 
 
 his general estate (s), but if declared alter the death, will 
 go to the legatee (t); but where the accretion accrues de 
 die in diem, an apportionment will be made, if part of 
 the time during which the accrual has proceeded was in 
 the life of the testator, and the residue of such time has 
 been after his death (u) : All which is in accordance, 
 semble, with the Apportionment Act, 1870 {x), — 
 liabilities incident to rights being also within that Act(y) . 
 And, Secondly, where (and so far as) the accretion goes 
 to the legatee, then (as between the tenant for life and the 
 remainderman) a bonus declared out of capital will be 
 capital (z), and a bonus declared out of income (even 
 accumulated income) will be income (a), — Excepting that, 
 if the company has the power of declaring the bonus to 
 be either capital or income, the company's decision 
 (validly arrived at (6)) determines the question as between 
 the tenant for life and the remainderman (c) . But 
 although a dividend, if paid in cash, will belong wholly 
 to the tenant for life as income, — yet, if it is paid as to 
 part in cash, and as to the other part by an issue of new 
 shares, the tenant for life will not, in general, get the new 
 shares as income (d) ; and the liabilities will be similarly 
 distributed as between the tenant for life and the remain- 
 derman (e) . 
 
 Apportion- 
 ment, — none, 
 where stocks 
 or shares are 
 sold cum div. 
 
 Where stocks or shares are held upon trust for A. for 
 life, with remainder upon trust for (and to transfer the 
 same to) B., — and A. dies while a dividend is accruing; 
 and the stocks or shares (instead of being transferred) are 
 sold cum div. {i.e., with the accrtiing dividend included), 
 and thereby a larger price is obtained for the stocks or 
 shares, — A.'s estate is not entitled to receive any part of 
 that price in respect of the apportioned dividend accrued 
 
 («) Zock T. VenabUs, 27 Beav. 598. 
 
 (*) Macleinley v. Bates, 31 Beav. 280. 
 
 (!() Constable v. Constable, 11 Ch. Div. 861. 
 
 (») 33 & 34 Vict. C: 35 ; In re Cox's Trust, 9 Oh. Div. 159. 
 
 Ij/) Rochester {Bp.) v. Le Fanu, 1906, 2 Gh. 613. 
 
 (2) Sprouh V. Bouch, 12 App. Ca. 385. 
 
 (a) Armitage v. Garnett, 1893, 3 Ch. 337. 
 
 \b) TFMtw'hamr. Pierey, 1907, 1 Ch. 289. 
 
 \c) In re Burton's Tnist, L. E,. 5 Eq. 238. 
 
 (d) Lovelace v. Anson, 1907, 2 Ch.*424. 
 
 (e) In re Poyzer, Zandon v. Foyzer, 1910, 2 Ch. 444. 
 
LEGACIES. 155 
 
 before A.'s death (/), — Scil., in the absence of special 
 circumstances (g) . 
 
 When a legacy is given to a child contingently on his infant's main - 
 or her attaining the age of twenty-one years, the income interest on ° 
 accruing on the investments representing the legacy is, legacy, 
 by the Conveyancing Act, 1881, s. 43, available for the 
 interim maintenance of the child during the contin- 
 gency (h), — That is to say, where such interest or income 
 goes with the corpus or capital, assuming the contingency 
 to happen (^), and not othervjrise (fc); and any accumula- 
 tions (unapplied) of such income will also go to the con- 
 tingent legatee on the contingency happening (I), — but 
 only on its happening (w), — And all these rules apply 
 also where the legacy is payable out of a mixed fund (w) . 
 
 Where a legacy (whether in the form of a pecuniary Legacies given 
 legacy (o) or of an annuity {p)) is given to A. B., subject 'oSo^- 
 to the condition that he shall not dispute the will, or shall when the 
 not marry a particular person, or the like, the legacy is '^^°^Jn 
 good, the condition being regarded as in terrorem only; only and 
 and similarly, if the condition is otherwise utterly unrea- ^fu^'t? 
 sonable (q). But if the legacy be given over to C. D., 
 in case the primary legatee A. B. disputes the will, — or 
 otherwise goes contrary to the specified condition, — then 
 the gift over is good (r), — even although A. B. should 
 not know of the condition until it is too late (s) . And 
 where a legacy or annuity is given to A. B., and (in case 
 he marries with the consent of the trustees of the will) a 
 further legacy or annuity (t), or an alternative larger 
 legacy (m), the condition is good, and A. B. (if he fail 
 
 (/) Fremm v. Whitbread, L. R. 1 Eq. 266. 
 
 Q) BulheUy v. Stephens, 1896, 2 Ch. 241. 
 
 (A) Holford V. Solford, 1894, 3 Ch. 30. 
 
 (i) Clements v. Pearsall, 1894, 1 Ch. 665. 
 
 (A) Shaw V. Cunliffe, 4 Bro. C. C. 144. 
 
 (I) Seott V. Seoit, 1902, 1 Ch. 918. 
 
 (m) Bowlby v. Bowlby, 1904, 2 Ch. 685. 
 
 («) Smart y. Tayhr, 1901, 2 Ch. 134. 
 
 (o) Fowell V. Morgan, 2 Vern. 90. 
 
 \p) LoydT. Spillet, 3 P. Wms. 344. 
 
 [q) Rhodes v. Muswell Sill, 29 Beav. 661. 
 
 [r] Cleamer v. Spurling, 2 P. Wms. 526. 
 
 (s) In re Hodge's Legacy, L. R. 16 Eq. 29. 
 
 (4 Hampton v. Nourse, 1899, 1 Ch. 63. 
 
 iu) Gillett V. Wray, 1 P. Wms. 284. 
 
156 
 
 THE ORIGINALLY EXCLtTSirE JDRISDICTION . 
 
 Conditions 
 subseqtient,— 
 non-compli- 
 ance with, 
 effect of, — 
 
 also, where 
 the condition 
 ■becomes im- 
 possible,-^ 
 effect. 
 
 to comply with the condition) shall not have the further 
 legacy or annuity or the increased legacy. But the Court 
 will not suffer any abuse of such conditions, — nor (e.g.) 
 may the trustees dishonestly or fraudulently refuse their 
 consent, where their consent is the condition (x) ; and 
 where the consent is once fairly given, it may not after- 
 wards be withdrawn (y) . 
 
 Where a legacy (given subject to a condition subse- 
 quent) is settled on the legatee for life with remainder to 
 her children, and the mother forfeits the legacy (by, e.g., 
 marrying without a due compliance with the condition), 
 — The forfeiture involves also, — in the general case (z), 
 but not invariably (a), — a, forfeiture of the remainder to 
 the children. And similarly, in the case of a devise (6). 
 But a condition subsequent, which becomes impossible in 
 part, is discharged in whole (c) ; and where the impossi- 
 bility arises through the act of the testator himself, the 
 condition (whether precedent or subsequent) is discharged, 
 and as well in the case of a devise as in the case of a 
 bequest (d) . 
 
 (x) Clarke v. Parker, 19 Ves. I. 
 (y) Ingall-r. Brown, 1904, 1 Oh. 120. 
 
 z) Whiting v. Be Rutzen, 190.5, 1 Oh. 96. 
 
 ») In re Joseph, 1908, 2 Ch. 507. 
 
 h) JJavis V. Angell, 4 De G-. F. & J. 524. 
 
 c) Peyton t. Bury, 2 P. Wms. 625. 
 
 'd) Ooolce-r. Turner, 15 Mee. & W. 727. 
 
15 
 
 CHAPTER IX. 
 
 CONVERSION. 
 
 Money (by deed or will) directed to be laid out in the 
 purchase of land, fl,nd land (by deed or will) directed to be 
 sold and turned into money, are respectively considered 
 (in equity) as being already converted, — by force of the 
 direction simply and before they are converted in fact. 
 
 In considering this doctrine of conversion, we have to 
 inquire, — (1) What words are sufficient for the Oanver- 
 sion; (2) From what time the conversion takes place; 
 (3) The general pfiect of the conversion; and (4) The 
 result of a failure (total or partial) of the purposes for 
 which the conversion was directed. 
 
 (1) The Words sufficient for the Conversion. — The Th,e direotioi 
 direction to convert must be imperative, — ^^and not merely miJ^tYe^im- 
 optional. And, therefore, where A. gave £5,000 to B., in perative, 
 trust to lay it out in the purchase of lands, or else to put ,j, j,^ 
 it out on good securities, for the separate use of hiisi 
 daughter H., — and A. died in 1729, and H. died (without 
 issue) in 1731, and her husband (as administrator) 
 claimed the money as against the heir, — The money was 
 decreed to the husband-administrator (a) . The direction or (2) im- 
 may, however, be impliedly imperative, — and will be so, v^^^> «-y-,. 
 when {e.g.) the trusts declared of the money are only tionsare 
 adapted ito land (&); and a direction to convert on request ^^^j^^°^^^ 
 is (in the general case) imperative (c), — but not if it be vice vend. 
 on joint request {d). 
 
 (a) Curling v. May, 3 Atk. 255. 
 
 (b) Earlom v. Saunders, Amb. 241. 
 
 (o) Re Tweedie and Miles, 27 Oh. D. 315. 
 {d) Re Gaylofs Settlement, 9 Ha. 596. 
 
158 
 
 THE OKIGINALLY EXCLUSIVE JUB.ISDICTION . 
 
 A mere 'p0ww to convert is, of course, not impera- 
 tive (e), — wherefore only an actual conversion will, in such 
 a case, be regarded (/) ; also where the power or direction 
 to convert is for any reason void {g) or has ceased {h), 
 there will be no conversion in equity, — even if there has 
 been a conversion in fact. 
 
 Tnne from 
 which oon- 
 ■vsrsion takes 
 place. 
 
 Rule inapplic- 
 able, when 
 conversion is 
 not the object. 
 
 In the case of 
 
 difference 
 according as 
 sale before or 
 after death of 
 mortgagor.' 
 
 (2) Tha Time from which the Conversion^ takes place. 
 — Subject to the g-eneral principle, that the terms of each 
 particular instrument must guide in the construction of 
 it {i), — The rule is, — (1) That, in regard to a will, the 
 conversion takes place as from the death of the testator; 
 and (2) That, in regard to a deed, the conversion takes 
 place from the date of execution {h), notwithstanding that 
 the trust for corwersion (contained in the desd) is not 
 to arise until after the settlor's death (l). And note, that 
 any delay in the actual conversion will not afiect the 
 respective rights which arise from the conversion in equity 
 (or notional conversion (m)). 
 
 But it is, of course, necessary in all cases, — and more 
 especially in the ease of a deed, — to be quite sure, that 
 there is an intention to convert; and in the absence of 
 such an intention, there will be no notional conversion 
 at all. For example, where A. borrowed £300 from B. 
 on a mortgage of A.'s fee simple estate, with a power of 
 sale in the mortgagee; and (by the terms of the mortgag-e 
 deed) the surplus of 'the moneys to arise from the sale wm 
 to he paid to A.., his executors or administrators ; and A. 
 died, and affericards Bl sold the estate, — The Court held, 
 that the surplus sale proceeds were real estate, and de- 
 scended to the heir (n). But if the sale had been made 
 in the lifetime of A., the mortgagor, the surplus would 
 
 (e) Pitman v. Pitman, 1892, 1 Ch. 279. 
 (/) Chnllinorv. Sykes, 1910, W. N. 81. 
 ig) Walker v. Lever, 1903, 1 Ch. 565. 
 (h) Galloicay v. Hope, 1903, 1 Ch. 129. 
 (i) WardY. Arch, 15 Sim. 389. 
 {k) Griffith V. Rickctts, 7 Hare, 311. 
 (t) Clarke v. Franklin, 4 K. & J. 257. 
 (m) Doughty v. Bull, 2 P. Wms. 320. 
 («) Wright V. Pose, 2 Sim. & St. 323. 
 
CONVEKSION. 
 
 159 
 
 have formed part of A.'s actual personal estate, — and 
 would (on his death) have gone to his next of kin (o), — 
 and that although the word heirs should have occurred 
 in the deed (p) . 
 
 Where lands are taken oompulsorily under the provi- f'^^^"* 
 sions of the Lands Clauses Consolidation Act, 1845 (q), compvd- 
 the mere " notice to treat " which is given by the company ^9'^^'"^'^; 
 does not (as from the date thereof) operate as a conversion when, and 
 of the lands into money, — for such notice, without more, ^iienonly. 
 does not amount to a contract; But if the notice is duly 
 followed up, and the price is afterwards ascertained, — 
 whether by agreement of the parties, or (failing agree- 
 ment) by valuation, arbitration, or verdict, as provided in 
 the Act, — then, fmd as from (but only as from) that date, 
 a conversion in equity is effected, — Scil., because an en- 
 forceable contract has then, and only then, been arrived 
 at (/■) : Which view is entirely consistent with the doctrine 
 of equity in the case of ordinary contracts for sale, — For 
 if an ordinary contract for the sale of lands is not enforce- 
 able, no conversion in equity will be effected by the con- 
 tract (s), — Secus, if the contract is enforceable enough, :but 
 goes off (after the death of the vendor) through the sole 
 default of the purchaser (i). 
 
 As regards leases, conferring upon the lessee (or his in case of 
 assigns) an option to purchase the demised premises, these tainlag option 
 distinctions have been taken (as regatds conversion), that of purchase,— 
 is to say: — 
 
 Firstly, As between the Lessor and Ms Real and Per- (i) As between 
 
 sonal Representatives: — In Lawes v. Bennet(u), where p^rsOTTii^r"- 
 
 A., before making his will, made a lease to B. for seven presentatives 
 
 years; and on the lease was endorsed an agreement that if "a) Option"^'~ 
 
 B. should be minded to purchase the inheritance of the created pre- 
 viously to will. 
 
 (o) Bourne v. Bourne, 2 Hare, 35. 
 
 [p] Chadwiek v. Grange, 1907, 2 Oh. 20. 
 
 (?) 8 Vict. 0. 18. 
 
 (r) Hardmii v. Metropolitan M. C, L. R. 7 Oh. App. 154. 
 
 is) Thomas v. Bowell, 34 Oh. Div. 166. 
 
 \t) Broome v. Monck, 10 Ves. 597. 
 
 (u) 1 Cox, 167. 
 
160 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 premises for £3,000, A. would convey them to B. for that 
 sum; and B. assigned the lease (and the benefit of that 
 agreement) to C; and A. died, — having by his will 
 given all his real estate (by a general devise thereof) to 
 D., and all his 'personal eetajte to D. and E., — and B. on 
 behalf of C. claimed the benefit of the agreement from 
 D., who accordingly conveyed the premises to C. for the 
 £3,000, — It was held, that the sum of £3,000 was part of 
 the personal estate of A., — Sail., because the election once 
 made referred back to the date of the original agree- 
 ment, — although the rents and profits in the meantime 
 went to D., the person entitled to the property as real 
 estate {x) . And the principle of the decision in Lawes 
 V. Bermet is applicable also (as between the heir and 
 the next of kin) where the lessor dies intestate, — and even 
 although the option to purchase should not be exercise- 
 able until after the death («/). But, according to Drant v. 
 Vause (0), where the testator makes a specific devise of 
 the lands, the specific devisee will be entitled to receive the 
 purchase-money in such a case when the option is exer- 
 cised (z) ; and the rule is the same, where the specific 
 devise and the option are (in effect) contemporaneous (a). 
 
 (b) Option On the other hand, where a testator, after making his 
 
 subsequently will devising his real estate (either specifically or gene- 
 towiii. rally) to B. and bequeathing his personal estate to C, 
 
 grants a lease with an option of purchase, and that option 
 is exercised after his death, the price payable on the 
 exercise of the option will (in either case) go to C. (b),— 
 equally as if the testator had merely sold in the first 
 instance, and the completion of the sale was suspended. 
 
 (2) As between Secondly, As between the Lessee and his Real and Per- 
 
 pCTsoTai^re- sanal Representatives : — It is to be observed, that the 
 
 preaentativee option, as being incidental to the lease, vests where the 
 
 lease vests ; and the " assign " of the lessee may exercise the 
 
 (x) Townley v. Bedwell, 14 Ves. 591. 
 
 (y) Isaacs v. Seginald, 1894, 3 Ch. 506. 
 
 (2) 1 Y. & C. C. C. 580. 
 
 \a) Pyle v. Pyle, 1895, 1 Ch. 724. 
 
 (4) Weeding v. Weeding, 1 J. & H. 424. 
 
CONVERSION. 161 
 
 option, where the lessee himself does not exercise it; but, 
 of course, the executor or administrator of the lessee is 
 (for this purpose) an " assign " of the lessee: And in one 
 case where the option was given to the lessee, and to " his 
 executors, administrators, and assigns," and the lessee died 
 intestate, and his administrator (who was also his heir- 
 at-law) exercised the option and obtained a conveyance- 
 of the premises to himself in fee simple, — He was declared 
 a trustee for the next of kin of the deceased lessee (c) . 
 
 Thirdly, As between the Lessor and the Lessee them- (3) As between 
 selves : — Until the option is (in fact) exercised, there is ^'^ ^^1°'^ *"^ 
 merely the relation of landlord and tenant: Therefore, themselves. 
 Firstly, the lessor is not a trustee of the demised premises 
 for the lessee (conditionally on the option being exer- 
 cised, and retrospectively); and. Secondly, the lessee is 
 not entitled (retrospectively) to have any fire insurance 
 moneys (received by the lessor) applied in part payment 
 of the purchase-moneys payable on his exercise of the 
 option, — at least, in the general case (d), — although he 
 may occasionally be so entitled (e) . But, seeing that the 
 damage falls upon the purchaser, — the contract (once the 
 option is exercised) becoming specifically enforceable, — 
 Therefore, it is right, that the purchaser should have the 
 insurance moneys, either paid to him, — or (if not paid to 
 him) applied, at all events, in repairing the damage (/). 
 
 And note, that the option of purchase continues to be Perpetuities 
 exerciseable, while the tenancy (under the lease) continues '^'^'®'.~'^, , 
 in fact, — although the original term of it may have ex- option of 
 pired (^r). But, as regards all these options of purchase p^roliase. 
 in leases, — ^as distinguished from options for a mere re- 
 newal of the lease (h), — They are (all of them) within 
 the Rule of Perpetuities («), — So that tli,ey cannot be 
 given so as to be exerciseable beyond a life or lives in 
 being and twenty-one years thereafter: However, for a 
 
 {o] JRe Adams and Kensington Vextry, 17 Ch. Div. 394. 
 
 \d) Fdwards v. West, 7 Ch Div^ 858. 
 
 (e) Reiinard v. Arnold, L. E. 10 Ch. Arp. 386. 
 
 (/■) In re Quiche's Trusts, 1908, 1 Ch. 887. 
 
 (g) Buckkind v. Popillon. L. E, 2 Ch. App. 67. 
 
 (A) Uulkr V. Traftord, 1901, 1 Ch. -54. 
 
 (i) Woodall V. Chfton, 1905, 2 Ch. 257. 
 
162 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 breach of the option (regarded as a contract), damages 
 are always recoverable (k), — So that the lessor, rather than 
 pay these damages, will ordinarily fulfil the option, — and 
 if the lessor should have meanwhile died, his legal per- 
 sonal representative will probably do the same, — such 
 legal personal representative being now able (under the 
 Conveyancing Act, 1881, s. 4) to convey the fee simple, 
 as well as to receive the option moneys. 
 
 Effects of 
 conversion : 
 
 (a) J _ 
 devolution on 
 death. 
 
 (b) As regards 
 curtesy and 
 dower. 
 
 (o) As regards 
 disposing ty 
 •will. 
 
 (3) As to the Ejfects of Conversion. — Money directed 
 to be turned into land descends to the heir {I), and land 
 directed to be converted into money goes to the personal 
 representatives (to) . And accordingly, the money 
 directed to be converted into land, where it belongs to a 
 married woman, is liable to the husband's curtesy; and 
 where it belongs to the husband, is now (under the Dower 
 Act, 1833) liable to the widow's dower: Also (before the 
 Wills Act, 1837) an infant under the age of twenty-one 
 years might have made a will of his pure personal estate, 
 but not of personal estate which had been directed to be 
 laid out in land (w). 
 
 (d) As regards 
 liability to 
 death duties. 
 
 (e) As regards 
 escheat to the 
 
 Where the conversion was by will, the land directed to 
 be converted into money used to be subject to probate 
 duty (o), and also to legacy duty (p), — equally as if it 
 were actual money {q); and, of course, it is now subject 
 to estate duty (which includes the old probate duty (r)). 
 
 Money directed to be turned into land would not for- 
 merly have escheated to the crown (s), — Soil., Because 
 escheat was purely a legal incident; but such money now 
 escheats, being equitable realty within the meaning of 
 s. 4 of the Intestates' Estates Act, 1884 (J,). Also, the land 
 directed to be turned into money also now escheats, 
 
 (/c) Wm-lking Corporation v. Heather, 1906, 2 Ch. 532. 
 {I) Scudamore v. Scudainore, Prec. in Ch. 543. 
 (m) Elliott V. Fisher, 12 Sim. fi05. 
 \n) Earlom v. Saunders, Amb. 241. 
 (o) Att.-Gen. v. Bubhuclo, 13 Q, B. D. 275. 
 Ip) Att.-Gen. v. Holford, 1 Pri. 42(1. 
 (?) Att.-Gen. v. Johnson, 1907, 2 K. B. 885. 
 ()•) In re Grimthorpe, 1908, 2 Ch. 675. 
 (s) Walker v. Denne, 2 Ves. 169. 
 « 47 & 48 Vict. u. 71. 
 
CONVERSION. 163 
 
 although formerly not (u) . Also, as regards leaseholds 
 directed to be turned into money, all these will, appa- 
 rently, go as bona vacantia {x) . 
 
 (4) The Results of a Failure {total or partial) of the (4)Ke8uitaof 
 Purposes for which the Conversion is directed. — In the fo^ure! ^*'*'^^ 
 case of a total failure, — the purposes for which the con- (i) Total 
 version was intended having totally failed before or at failure. 
 the time 'when the will or deed came into operation, — 
 no conversion will take place at all; but the property 
 will remain as it was, — or be "at home" (y): And, for 
 these purposes, there is no difference between a deed and 
 a will. But, in the case of a partial failure, it is neces- (u;) Partial 
 sary to distinguish between (1) a will, and (2) a deed: — failure. 
 
 I. Wills — (i) Land into Money. — It was decided in i. Cases under 
 Ackroyd v. Smithson (z), that when land was directed !?^''~, . 
 to be turned into money, the heir took the undisposed-of mon^y! 
 surplus of the land, — and that (to exclude the heir) there 
 must have been an actual disposition in favour of another, 
 — And this was because the testator's intention to convert 
 the whole of his real estate into personalty, was only in 
 case all his residuary legatees should take, — and not also 
 as between his own heir-at-law and his own next of kin. 
 But the rule of Aekroyd v. Smithson is inapplicable. Doctrine does 
 where there is a sale under an order of the Court, and not apply to 
 the heir-at-law consents to the sale (a), — ^and even where court,— 
 (being an infant) he does not consent (b), — Scil., Because 
 the sale being properly made, there is no equity to re- 
 convert (c) . Also, where the trustees of the will have 
 a power of sale, and they do not exercise it, but the Court 
 (in an administration action to which the trustees are 
 defendants) orders a sale, that also is a lawful conver- 
 sion of the land, and in that case also there is no recon- 
 version of the surplus {d). 
 
 («) Taylor v. Haygarth, 14 Sim. 8. 
 
 {«) In re Sigginson a«d Dean, 1899, 1 Q. B. 325, on p. 329. 
 
 (y) Clarke v'. Franklin, 4 K. & J. 257. 
 
 {z) 1 Bro. C. C. 503. 
 
 (a) SleedY. Preeoe, L. K. 18 Eq. 192. 
 
 (b) Burgess -v. Booth, 1908, 2 Ch. 648. 
 
 (c) Toovey v. Turner, 1907, 1 Ch. 475. 
 
 yt\ Hyetty. Mekin, 25 Ch. Div. 735; In re Bodson, 1908, 2 Ch. 638; 
 launtleroy t. Beele, 1911, 2 Ch. 257. 
 
 M 2 
 
164 
 
 THE OKIGINALLY EXCLUSIVE JURISDICTION. 
 
 Except under 
 Bpecial circum- 
 stances. 
 
 Nevertheless, under the Partition Act, 1868 (e), in the 
 case of infants' lands (/), — and also in the case of mar- 
 ried women's lands (g), — sold under an order of the Court 
 for the sale thereof, — there is a reconversion. Also, under 
 the Lands Clauses Consolidation Act, 1845 (h), where the 
 land taken is the property either of a corporation, or of 
 a tenant for life (or of any of the other persons under 
 disability who are specified in s. 69 of the Act), there 
 is a reconversion (i), — At least, in the general case, 3,nd 
 apart from any special circumstances (/c) . 
 
 The land to 
 be sold results 
 to the heir, — 
 as personal 
 estate, if that 
 is its actual 
 condition. 
 
 (a) Where sale 
 is necessary, — 
 it results as 
 money to the 
 heir. 
 
 As regards the subsequent devolution after the death 
 of the heir, of the real estate falling to him on such 
 partial failure as aforesaid, — It was settled, in Smith v. 
 Claxton (l), that where it was necessary to sell the land 
 for the purposes of the trust, the surplus belonged to tho 
 heir as money, — and went therefore to the personal repre- 
 sentative of such heir; and it was afterwards decided to 
 make no difference, that the land is not sold during the 
 lifetime of the heir, provided it be sold eventually in the 
 due execution of the trust (m). 
 
 (b) Where sale 
 is unnecessary, 
 and is not 
 made, or so 
 far as not 
 made, — it 
 results as land 
 to the heir, 
 (ii) Money 
 into land. 
 Undisposed- of 
 personalty 
 results to per- 
 sonal repre- 
 sentatives of 
 testator as 
 personalty. 
 
 I. Wills. — (ii) Money into Land. — It was decided, in 
 Cogan v. Stephens (w), that where money was directed 
 to be turned into land, the next of kin took the undis- 
 posed-of surplus of the money; and, by the cases which 
 have been subsequently decided, it is now settled, that 
 (in the case of such next of kin afterwards dying) the 
 property devolves according to its actual condition at the 
 time of the devolution, — Scil., as personal estate, if that 
 continues to be its actual condition; and as real estate, 
 if (from any special cause) that should have become its 
 actual condition (o). But any mere blending of the sale- 
 proceeds of the real estate with the personal estate, will 
 
 («) 31 & 32 Vict. c. 40. 
 
 If) Foster v. Foster, 1 Ch. D. 588 ; Mildmay v. Quiche, 6 Ch. DIt. 55a. 
 
 ijl) Wallace v. Greenwood, 16 Ch. Div. 362. 
 
 (h) 8 Vict. c. 18. 
 
 (i) Kellandy. Fulford, 6 Ch. Div. 491. 
 
 (k) Smith V. May, 19U0, 2 Ch. 474. 
 
 {/) 4 Mad. 492. 
 
 [m) In re Bicherson, 1892, 1 Ch. 379. 
 
 (n) 1 Beav. 482, n. 
 
 (o) Reynolds v. Godlee, 1 John. 636 ; In re Iticherson, supra. 
 
CONVERSION. 165 
 
 not operate to convert the real estate into personal estate Blending of 
 for the purpose of giving it to the next of kin (p). Also, B^^'fg'lateV 
 any mere declaration, which purports to exclude the heir, — eifect of. 
 will not suffice, although it should be ever so emphatic,^ 
 a mere intention to exclude the heir (unless there is a 
 gift over to some one else) not sufficing (g): That is to Conversion for 
 say, no conversion (as against the heir) will arise, merely puiT"^®^ °! 
 by the testator's declaring that the land is to be deemed and'out. 
 personal estate and distributable accordingly (r) ; but the 
 testator must go further, and declare his intention to be, 
 that the realty shall be converted into personalty for all 
 purposes, — i.e., whether the purposes of the will talce 
 effect or not (s) . 
 
 II. Deeds. — The rule is, that when realty is directed H- Cases 
 to be converted into personalty (t), — or personalty into ^"^ ™ ^^ ^' 
 realty (m), — ^for certain specified purposes, and a part of 
 those purposes fails, — The property shall (to that extent) 
 result to the settlor, — and through him (if it is land 
 directed to be converted into money) to his personal re- 
 presentatives {x), — or (if it is money directed to be con- 
 verted into land) to his heir {y) ; and the subsequent 
 further devolution (if any) will, semhle, depend upon 
 the actual character of the property at the date of the 
 further devolution {z) . 
 
 {p) Jeasop V. Watson, 1 My. & K. 667. 
 
 \q) Fitch V. Weber, 6 Hare, 146. 
 
 (r) In re Walker, 1908, 2 Ch. 705. 
 
 (s) Crme v. Barley, 3 P. Wms. 22. 
 
 (<) Clarke v. Franklin, 4 K. & J. 263. 
 
 (m) Pulteney v. Darlington, 1 Bro. Ch. Ca. 223. 
 
 (x) Griffith V. Uicketts, 7 Hare, 299. 
 
 (V) Wheldale v. Partridge, 8 Ves. 236. 
 
 (z) Walter v. Mamde, 19 Ves. 423. 
 
166 
 
 CHAPTER X. 
 
 RECONVERSION. 
 
 Reconversion is the process whereby a prior notional 
 conversion is annulled or discharged, and the notionally 
 converted property is restored to its original actual uncon- 
 verted quality; and this happens, either (1) By act of the 
 parties, or (2) By operation of law. 
 
 I. By the act I. Reconversion hy Act of the Forties. — A sole owner 
 ° J' ^^"^ '^^' entitled (absolutely and not defeasibly {a)) in fee simple 
 lute owner. in possession, may, of course, elect to take the property 
 in whatever form he chooses; but the onus of proving 
 the reconversion (even in that case) is on those who allege 
 oflnUdirided i* (^)- ^^ the other hand, as regards co-tenants, the fol- 
 share. lowing distinction has been taken, namely, — That when 
 
 (a) Of money the conversion is of money into land, any one undivided 
 
 to DG convcrtsd '1/ 
 
 into land. fee simple owner (entitled in possession) may reconvert 
 fb) OEiand without the Concurrence of the others (c), — but not in the 
 
 to be converted (»i i-, /7\ iji 
 
 into money. Converse case oi land into money (a) ; and the reason 
 assigned for this diversity is, that the sale of an undivided 
 share in realty is less marketable than the sale of the 
 entirety (e). 
 
 (3) By remain- As regards Remaindermen, — They cannot reconvert, so 
 extent°ofh^ ^^ ^ ttjfect the interests of the prior tenants ; but remain- 
 own interest dermen (even remote remaindermen (/)) are not, of 
 ° ^' course, prevented from declaring, that {as between their 
 
 [a) Sisson v. Giles, 3 De G. F. & J. 614. 
 (A) Benson v. Benson, 1 P. Wms. 130. 
 
 (c) Seel'!/ v. Ja^o, 1 P. Wms. 389. 
 
 (d) Holloway t. Radclife, 23 Beav. 163. 
 
 (e) Mutlow V. Bigg, 1 'Ch. D. 385. 
 
 (/) Cleveland {Duke), In re, 1893, 3 Ch. 244. 
 
EECONVEESION . 
 
 1&7 
 
 c^itn real and personal representatives) the remainder shall 
 be real estate or shall be personal estate {g) . 
 
 As regards Infants, — An infant does not, ordinarily, (4) By infants, 
 redonvert, — because the matter can usually wait, — But if 
 the matter won't wait, then the Court will direct an 
 inquiry, whether it is for the benefit of the infant to re- 
 convert or not, and will order accordingly, — but with- 
 out prejudice to the respective rights of the real and per- 
 sonal representatives of the infant, in case he should after- 
 wards die under age {h). 
 
 As reg'ards Lunatics, — A lunatic cannot reconvert; but (6) By lunatics, 
 the committee of the lunatic may (with the sanction of the 
 Court) do so, — In which latter case also, the respective 
 rights of the real and personal representatives of the 
 lunatic will be duly protected (i) . 
 
 As regards Married Women, — A married woman may, (6) By married 
 doubtless, reconvert, if she is an absolute owner: And as ,>-,,' 
 
 ' ' . . (a) Money 
 
 regards, firstly, the case of money into land, — a married into land, 
 woman, if entitled for her sepaxate use, reconverts hy 
 ordinary deed; but if not entitled for her separate use, 
 she reconverts by deed acknowledged (fc), — the deed 
 acknowledged being in lieu of the old fine (or separate 
 examination) which used to he necessary for the pur- 
 pose (?). And as regards, secondly, land into money, — (b) Land into 
 a married woman (unless she is entitled for her separate ™°"^^' 
 use) reconverts by deed acknowledged; and she is able 
 to do that, whether her estate is in possession (m), or is in 
 reversion (n), — and although her estate should be merely 
 an interest in the land (o) . But, nota bene, her husband 
 must, in all cases, concur in the deed acknowledged, — 
 like he used to do in the old fine for which the deed 
 
 (ff) Billies V. Longlands, 4 De G-. & Sm. 372, 379. 
 
 [h) Foster v. Foster. 1 Oh. Div. 588. 
 
 («) Att.-Gen. v. Ailesbury (Marquis), 12 App. Ca. 672. 
 
 (/c) Forbes v. Adams, 9 Sim. 462. 
 
 (l) Oldham v. Hughes, 2 Atk. 4o3. 
 
 (m) Briggs v. Chamberlain, 11 Hare, 69. 
 
 (n) Titer v. Turner, 20 Beav. 560. 
 
 (o) Millers. Collins, 1896, 1 Ch. 573. 
 
168 
 
 THE OEIGINALLY EXCLUSIVE JURISDICTION. 
 
 acknowledged has been substituted, — Soil., where the 
 married woman is not entitled for her separate use. 
 
 fa^wn"*""' It is clear, that an absolute owner of property, not 
 under disability, may reconvert by any express declara- 
 tion of his or her intention in that behalf; and as 
 regards land into money, slight circumstances are deemed 
 sufficient to raise the inference of a reconversion, — as 
 keeping the land unsold for a time (p), or (on a lease of 
 it) reserving the rent to the lessor his heirs and assigns (q) . 
 But as regards money into lands, only by the owner 'si 
 actual receipt of the capital moneys from the trustees, 
 would a reconversion be shown (r), — the mere receiving 
 of the income of the money (though for a long time) 
 not sufficing (s). 
 
 II. By opera- 
 tion of law. 
 Concurrence of 
 tyvo requisites 
 to reconversion 
 necessary, — 
 1st, property 
 in person en- 
 titled whether 
 it be real or 
 personal ; and 
 2nd, no de- 
 claration by 
 him concern- 
 ing it. 
 
 t)arlington, — 
 the money was 
 doubly recon- 
 verted, having 
 been twice 
 over ' ' at 
 home." 
 
 II. Reconversion by Operation of Ldw. — Where money 
 has once been impressed with the quality of land, that 
 impression will remain (for the benefit of the heir) until it 
 is put an end to; and to put an end to it, two things are 
 necessary (neither of which standing alone will suffice), 
 that is to say: — Firstly, the money must have been in the 
 hands (i.e., in the actual possession) of some person who 
 had in himself both the executors and the heirs (i); and, 
 Secondly, that person must have died without making 
 any declaration of his intention regarding it either 
 way (m) : That is to say, if money impressed with the 
 quality of land, has come into the hands of B., the person 
 solely entitled to it under the ultimate limitation in fee; 
 and he dies without taking any specific notice of it, the 
 heir-at-law of B. shall not have the money (a;), — Scil., 
 because the money was "at home" in B. 
 
 raessed'^th ^^t, nota bene, if the money had not been so "at 
 
 real uses, at home " in B., but had " stood out in a third person," that 
 
 home in the 
 
 {p) Mutlow V. Bigg, 1 Ch. D. 355. 
 
 (q) F'iru:iU v. Lctvis, 30 Ch Div. 654. 
 
 ()•) Martin V. Trimmer, 11 Ch. Div. 341. 
 
 [s] Re Tedder's SetlUmeiit, 5 De G. M. & G. 890. 
 
 \t) WheUale v. Partridge, 8 Ves. 227, at p. 235. 
 
 (m) Chiche&ier v. B'lcherataff, 2 Vern. 295. 
 
 {x) Pulteney v. Darlington, 1 Bro. 0. C. 223 ; 7 Bro. P. C. 530. 
 
RECONVERSION . 
 
 169 
 
 would, semble, have made a difference; and it has been hands of the 
 
 held (y), that there is no reconversion (Soil., by operation owner, de- 
 
 of law simply), when any subsisting legal interest (e.g., ^l^^^\^i 
 
 a legal jointure) is outstanding, — notwithstanding that not if any 
 
 all the successive limitations in the settlement have (sub- partiarhSerest 
 
 ject only to such jointure) centred in one and the same stands in the 
 
 person; but the money directed to be laid out in land and ^'^^' 
 to be strictly settled will (in such a case) he held to 
 remain impressed with the character of land, — and so go 
 to the heir. 
 
 And it is convenient here to say, that there is, in No equity for 
 
 1 •, p • .,1 a reconversion, 
 
 general, no equity lor a reconversion, — either: in general. 
 
 (1) As between the heir and the customary heir, — on 
 
 an exchange (z) ; or 
 
 (2) As between the heir and the next of kin of a 
 
 lunatic (a) ; or 
 
 (3) As between the heir ex parte paternd and the heir 
 
 ex parte maternd (6); or 
 
 (4) As between the real and the personal representa- 
 
 tives, — in 'the case of a conversion by statute (c) . 
 
 But a man may, of course, always provide expressly to 
 the contrary, by his wi-ll (d) . 
 
 (y) iralrond v. Eossli/n, 11 Ch Div. 640. 
 
 (z) Minet v. Leman, 7 De G-. M. & Gr. 340. 
 
 (a) Re Tvgwell, 27 Ch. D. 329. 
 
 (A) Ex parte FhilKps, 19 Vee. 118. 
 
 (c) Frewen v. Freioen, L. R. 10 Ch. App. 610, on p. 613. 
 
 \S) In re Orimihorpe, 1909, 2 Ch. 676. 
 
170 
 
 CHAPTER XI. 
 
 ELECTION. 
 
 Thefounda- 
 fion and the 
 charicterutic 
 effect of the 
 equitable 
 doctrine. 
 
 Election in equity arises, where there is a duality of 
 gifts or of purported gifts, — one of the gifts being to A. 
 of the donor's own property, and the other of them being 
 to B. of the proper property of A.; and in the case of 
 such a duality of gifts, there is an intention implied, that 
 the gift to A. shall take effect, only if A. elects to 
 permit the gift to B. to also take effect. That is the 
 foundation or principle of the doctrine of election; and 
 the characteristic of that doctrine is, that, by an equit- 
 able arrangement, effect is given to the purported gift 
 to B. 
 
 Two courses 
 open to elect 
 between, — 
 
 (1) Election 
 under the 
 instrument. 
 
 (2) Election 
 against the 
 instrument. 
 
 Compensation, 
 and not for- 
 feiture, is the 
 rule, — upon 
 an election 
 against the 
 instrument. 
 
 Supposing, for example, that A. by mill or deed gives 
 to B. property belonging to C, and by the same instru- 
 ment gives other property belonging to himself to C, a 
 Court of Equity will hold C. to be entitled to the gift 
 made to him by A., only upon the implied condition that 
 C . shall renounce his own property in favour of B . : And 
 C. has two courses open to him (to choose between), That 
 is to say, — either (1) To take under the instrument, — In 
 which case B. will take C.'s property, and C. will take 
 the property given to him by A.; or (2) To go against 
 the instrument, — In which case, C. will forfeit or lose 
 the gift made to him by A., — Soil., to the extent required 
 to compensate B. for the disappointment B. suffers 
 through C.'s election against the instrument; That is 
 to say, if A. (the testator) gives to B. a familj^ estate 
 belonging to C, worth £20,000 in the market, and by the 
 same will gives to C. a legacy of £30,000 of his (A.'s) 
 own property; and C. (unwilling to part with the family 
 estate) elects against the instrument, — In such a case, C. 
 will retain his family estate, and will also receive £10,000 
 (portion of his legacy of £30,000), leaving to B. £20,000 
 
ELECTION. ITl 
 
 (other portion of the legacy of £30,000) to compensato 
 him (B.) for the value of the estate of which he has been 
 disappointed by C.'s election against the instrument {a). 
 But, of course, the compensation is only payable, where 
 C. elects against the will, — and not where he elects to 
 take according to the will; and the compensation payable 
 (where any is payable) is only out of {and by ivay of 
 charge on (6)) the other property given by the ivill, and 
 is never in excess of that, — a circumstance which distin- 
 guishes election from the case of a valid gift with a legal 
 condition annexed to it (c) . 
 
 The doctrine of election depending on the principle of ^^®''®,'?l^^' ^® 
 compensation, it follows, that the doctrine is inapplicable, which com- 
 where there is no fund from which compensation can be pensationcan 
 made, — Or (speaking more simply) the doctrine of elec- some property 
 tion only properly arises, where the donor (or purporting »* donor's 
 donor) really puts into his gifts (or purported gifts, or °'^' 
 some or one of them) some property that actually is his 
 own, at' the same time that he affects to give away the 
 property of others, — a point which comes out very clearly 
 upon a contrast of the decisions in Bristoiv v . Warde and 
 Whistler v. Webster : That is to say, — 
 
 In Bristow v. Warde (d) decided in 1794, it appeared (i) Where no 
 that a father had the power of appointing certain stock testatoX°own 
 among his children, and that the appointment funds in is given,— 
 question were given to the children in default of appoint- ^^'^'^*' ' 
 ment by the father; and it also appeared, that the father 
 (by his will) appointed portion of the funds to his 
 children (the proper appointees), and the remaining part 
 thereof to X., Y., and Z. (who, as not being children, were 
 improper appointees), — and that the father did not (in 
 or by his will) give any property of his oiun to the chil- 
 dren, — Upon these facts, the Court held, that the children 
 might keep their appointed shares, and also take (as in 
 default of appointment) the shares appointed to X., Y., 
 and Z., — and were not, in fact, bound to elect. 
 
 (a) Gretton v. Sayward, 1 Sw. 433. 
 
 (*) See jOCT- Jessel, M.R., in 5 Ch. D. 163, on pp. 173-4. 
 
 (e) Robinson -v. Wheehvright, 21 Beav. 214. 
 
 (d) 2 Ves. 336. 
 
172 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (2) Where , On the other hand, in Whistler v. Webster (e), also 
 STeTtor's''' <iecided in 1794, it appeared, that a father had the power 
 own is giveu, of appointing certain moneys among his children, and 
 -the contrary |.jja,(. j-j^g appointment funds in question were given to his 
 children in default of appointment by the father; and it 
 also appeared, that the father (by his will) appointed 
 portion of the funds to his children (the proper 
 appointees), and the remaining part thereof to X., Y., 
 and Z. (who, as not being children, were improper 
 appointees), — ^and that the father (in and by his will) 
 gave also certain property of his own to the children, — 
 Upon these facts, the Court held, that the children were 
 bound to elect, keeping (if they chose) their appointed 
 shares and the other benefits given to them by the will, 
 and (in that case) not interfering with the shares impro- 
 perly appointed to X., Y., and Z.; or else taking (if they 
 chose) the entire appointment fund to themselves, and 
 (out of the other benefits given to them by the will) 
 compensating X., Y., and Z., for the value of the shares 
 improperly appointed to them. And, nota bene, when 
 the appointees are put to their election, and some of them 
 elect one way, and the others of them elect the other way, 
 a nice intricacy arises, in the calculation of the compensa- 
 tion which is payable; but the compensation payable 
 (whatever it is) is to be regarded as a benefit taken under 
 the will, — and accordingly is to be valued in (/) . 
 
 Ratification 
 of voidable 
 contract, dis- 
 tinguished 
 from election. 
 
 No election 
 proper, in 
 ca^es where 
 the testator 
 makes two 
 bequests of 
 his own pro- 
 perty in the 
 same instra- 
 meut. 
 
 Election arising only where there are two gifts, the one 
 (real and effective) of the donor's own property, and the 
 other (unreal and ineffective) of what is not the donor's 
 property at all, — It is almost needless to say, that this 
 doctrine of election in equity has nothing to do with the 
 so-called election which is involved in the ratification of a 
 voidable contract {g) . Nor has it anything to do with 
 those oases in which a testator makes two or more separate 
 gifts of his own property to the same devisee or legatee, 
 — In which latter case, if the one gift is beneficial and the 
 other is onerous, the donee may take the gift which is 
 beneficial and reject the gift which is onerous, — Scil., 
 
 (e) 2 Ves. 367. 
 
 (/) B'lOth V. Robinson, 1906, 2 Ch. 321. 
 
 (.17) Wilder v. Pigott, 22 Ch. Div. 263. 
 
ELECTION. 173 
 
 unless it appears by the will, that the testator's intention 
 was, to make the acceptance of the burden a condition 
 of the benefit (^): Which intention will be apparent 
 enough when {e.g.) a testator devises his real estates 
 collectively to A., and some of these estates are burdened 
 with ancestral mortgages, and the others of them are free 
 or comparatively free of such mortgages {i) . 
 
 Considerable difficulty attaches to election, in connec- Election under 
 tion with special powers of appointment: And it appears, P""®™- 
 that where the appointment is made to a stranger to the (i) As to per- 
 power, and a benefit is conferred upon the person entitled j^^fau'Jt'o/'^ " 
 in default of appointment, the latter will be put to his appointment, 
 election; but that one who is merely an obiect of the —^ true case 
 
 1 7 7 '7T-7_c7* ^^ election. 
 
 power, and not also the person entitled m dejault, is not 
 
 (in such a case) put to his election: That is to say, — 
 
 Supposing, Firstly, that A. is the object of the power, 
 
 and B. the person entitled in default, and X. the stranger (2) Astoper- 
 
 to whom the purported appointment is made, — The ^'Ji'Jie^the^'^ 
 
 appointment in favour of X. is clearly bad, — and there- power, -no 
 
 fore the property passes to B. as in default of appoint- " ^^ e*iy go*""' 
 
 ment; but no property of A.'s has been given to X.: And called. 
 
 supposing, Secondly, that A. was also the person entitled 
 
 in default, — i.e., if (in the case put) A. and B. were the 
 
 same individual, — he (A.) would, if he received any 
 
 benefit from the donee of the power, be put to his election, 
 
 — ^not as A. {the object of the power), but as B. {the 
 
 person entitled in default of appointment). 
 
 Where there is an absolute appointment by will in Absolute ap- 
 favour of a proper object of the power, and the appoint- ^lih directions 
 ment is followed by words attemj)ting to modify the in- modifying the 
 terest so appointed in a manner which the law will not mmt — ' 
 allow {]{), the words of attempted modification will not (i) whensuch 
 be available to raise a case of election (1!). But if the directions are 
 attempted modification is such as the law will allow, and ™™ 
 amounts (in substance) to the creation of a trust, a case 
 
 (h) Freke v. Calmadv, 32 Ch. Div. 408. 
 
 (i) Longford V. Emnnqtm. 1902, 1 Ch. 203. 
 
 fji) Wolla''ton V. Kwg, L. E.. 8 Eq. 1 65. 
 
 U) Woolridge v. Wooltidge. Johns. 63 ; In re Olher^s Settlement, Evered 
 V. Leigh, 1905, 1 Ch. 191 ; Cook v. Frederick, 1909, 2 Ch. 450 ; affd. 1909, 
 W.N. 226. 
 
174 
 
 THE OKIGINALLY EXCLUSIVE JURISDICTION. 
 
 raise a case of 
 election. 
 
 (2) When such of election would, semble, arise: For example, where A. 
 
 directionsare J^^d a power to appoint certain hereditaments to the 
 children of his first marriage, and such children were 
 also entitled to these hereditaments in default of appoint- 
 ment; and (by his will) A. gave the hereditaments to 9, 
 son of his by the first marriage, but purported to sub- 
 ject the devise to a charge in favour of his children by 
 the second marriage (as well as in favour of his other 
 children by the first marriage), — and in and by his will 
 he also devised certain property of his own to the son, 
 subject to the like charge, — The Court held, that the son 
 was put to his election (m). Also, nota bene, there may 
 even be a re-settlement of the appointed property, and 
 the re-settlement may be contemporaneous with the 
 appointment; and in such a case, the objects entitled 
 under the re-settlement need not be (and usually are not) 
 objects of the power at all, — but may be any objects 
 whatsoever (n) . 
 
 Re-settlement 
 of the ap- 
 pointed share. 
 
 Ineffectual 
 attempts to 
 dispose of pro- 
 pertybywill, — 
 examples of, 
 raising or not 
 election. 
 
 (a) Infancy. 
 
 (b) Coverture. 
 
 Where the disposing party was without capacity to dis- 
 pose (as being, e.g., an infant or a married woman), no 
 case of election would, in the general case, have arisen: 
 Therefore, where an infant purported to devise his real 
 estate, and to give a legacy to his heir-at-law, the heir 
 was not put to his election (0). Also, no case of election 
 arose, where a married woman made a valid appoint- 
 ment by will to her husband, and bequeathed her personal 
 estate (not being her separate estate) to another (p); and 
 the like rule applied, where the will of the married woman 
 was valid at the time of its execution, but afterwards 
 became in part inoperative (q) ; and the husband's obtain- 
 ing probate of the will would not (in such a case) have 
 been construed into an assent on his part to the whole 
 will being valid (r) . And where property is given to 
 a married woman by will, and the testator annexes a 
 restraint on anticipation to the gift, the married woman 
 (if still a married woman at the date of the death of the 
 
 (m) IVhite v. JThite, 22 Ch. Div. 555. 
 («) Goldiinidv. Goldsmid, 2 Ha. 187. 
 (o) SearU V. Grembank, 3 Atk. 695. 
 Ip) Rich V. Cockell, 9 Ves. 369. 
 (j) Blaiklock v. Grindle, L. R. 7 Eq. 215. 
 (r) Walhrr. Atkinson, 1899, 2 Ch. 1. 
 
ELECTION. 176 
 
 testator) will be exempt from the duty of electing (s), — 
 even although she should afterwards become a widow (t). 
 
 Previous to the Wills Act, 1837, where a testator, by (o) vfffls 
 a will, not properly attested for the devise of freeholds g^2°6^® ^ ^'*'*' 
 but sufficient to pass personal estates, devised freehold 
 estates away from his heir, and gave the heir a legacy, — 
 the heir-at-law was not obliged to elect between the 
 legacy and the freehold estate (u), — Scil., unless where 
 the legacy was given to him upon the express condition, 
 that if he did not comply with the whole of the will, 
 he should forfeit the legacy under it (x) . But if (in 
 such a case) the will was properly attested for the devise 
 of freehold estates, and the testator merely attempted to 
 thereby dispose of his after-purchased lands, — which, pre- 
 vious to the Wills Act, 1837, he could not effectually do, 
 — then the heir (taking a legacy under the will) was 
 bound to elect (y), — Soil., because a will which is attested 
 is a will (and can be looked a.t{z)). 
 
 Where a testator had real estate in England and also in (d) Election 
 Scotland, and he made an English will devising his lands ^nd?are'''"'' 
 in both countries to (in effect) his children; and the will de-risedby 
 not being in fact operative as regards the lands in Scot- ^"g^^'' ™^' - 
 land, the eldest son became (strictly speaking) entitled 
 as the testator's heir-at-law, — The Court held (ow the 
 manifest intention), that the eldest son was put to his 
 election between the operative devises and bequests con- 
 tained in the will and the real estate in Scotland which 
 came to him by descent (a), — Seeus, where no such mani- 
 fest intention was apparent on the will (6). And as or foreign 
 regards lands situate out of the iurisdiction generally, ^^^^< „ 
 the like observations are applicable; and where a testator 
 was possessed of real estates in England and also of real 
 estates in the island of St. Kitts; and by a will duly 
 attested for the real estates in England (but which was 
 
 (s) In re Yardon's Trusts, 31 Ch. D. 275. 
 (t) Bayries v. Foster, 1901,. 1 Ch. 361. 
 (m) Sheddon v. Goodrich, 8 Ves. 481. 
 (x) JBoughlon v. Boughton, 2 Ves. Sr. 12. 
 [y) Schroder v. Schroder, Kay, 578. 
 [z) Pegkr v. Gillatt, 1905, 2 Ch. 70. 
 
 (a) Orrell v. OrreU. L. R. 6 Ch. App. 302. 
 
 (b) Maxwell v. Maxwell, 2 De G. M. & G. 705. 
 
176 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 inoperative, by the law of St. Kitts, for the real estates 
 in St. Kitts), he devised his real estates both in England 
 and in St. Kitts to his heir-at-law for life, — 'The Court 
 held, that the heir-a't-law was put to his election (c) . 
 
 (e) Election 
 with reference 
 to dower. 
 
 Where the Dower Act, 1833, did not apply, — That is, 
 in "the case of all widows who had been married on or 
 before the 1st January, 1834, — A widow might by express 
 words have been put to her election at law, between her 
 dower and a gift conferred on her (d); and she might 
 also have been put to her election in equity, — but only 
 by the manifest intention of the donor to exclude her 
 from her legal right to dower, — as where (e.g.) the will 
 contained provisions which were inconsistent with the 
 dower continuing (e). Conversely, a husband may be put 
 to his election under the will of his wife, disposing of 
 her property which is his in her right, — the will being 
 (for this purpose) clear (/). 
 
 (f) Election 
 in the case of 
 derivative 
 interests. 
 
 Where A. by his will gives to B. the fee simple pro- 
 pertj' of C, and gives to C. property of his (A.'s) own, 
 C. is, of course, bound to elect; And if C. elects against 
 the will, and then dies leaving D. his heir-at-law (or 
 universal devisee), D. is not also bound to elect, C.'s 
 election sufficing: 'That is to say, D. is not also bound, 
 in such a case, to elect (in respect of his derivative title 
 under C), even if he (D.) takes an original benefit under 
 the will of A. (g). And, similarly, if a wife is entitled 
 to lands in fee, and she elects against some will which 
 purports to give away her lands to another '(the will giving 
 her, in lieu thereof, other benefits), and then she dies, 
 and her husband (surviving her) becomes, by derivative 
 title under his wife, entitled to his curtesy estate in the 
 wife's lands, — he (the husband) will not also be bound to 
 elect, — his wife's election sufficing: That is to say, the 
 husband would not, in such a case, be bound to elect, even 
 if he took also an original or independent benefit under 
 
 (c) Dewar v. Maitland, L. R. 2 Bq. 834. 
 
 (d) Notlhij V. Palmer, 2 Drew. 93. 
 
 (e) Butcher v. Kemp. 5 Mad. 61 ; Thomas v. Howell, 34 Ch. Div. 166. 
 (/) Leacroft v. Harris, 1909, 2 Ch. 206. 
 
 {g) Grissel'l v. Swinhoe, L. R. 7 Eq. 291. 
 
ELECTION. 177 
 
 the same will hy whioh the wife was put to her election (A) . 
 
 On the other hand, where the devolution of interest 
 
 happens before the original donee (called upon to elect) 
 
 has elected, the person deriving title under him or her is 
 
 bound to elect. In other words, the point of time which 
 
 you have to consider, is the date of the death of the 
 
 testator on whose will the question of election arises, — 
 
 and you have to ascertain, who is, at that date, entitled 
 
 to the property which the testator is purporting to give 
 
 away; And if the person, who is then entitled to that 
 
 property, takes a benefit under the will, he is bound to 
 
 elect: That is to say, — recurring to the above case of 
 
 A., B., C, and D., — if you find, that G. died before A., 
 
 — and so never took the benefit intended for him under 
 
 A.'s will (nor ever was called upon to elect) at all; and 
 
 if you also find, that D. is the person who, at the date of 
 
 the death pf A., is entitled to the estate (late of C.) 
 
 which A. purported to devise to B., — D. is bound to 
 
 elect, so as to compensate B. («'). And the Court says The relief in 
 
 (in effect), that whether C. survives A., and elects against equity,— is ty 
 
 the will, — or C. predeceases A., and D. (becoming en- charge. 
 
 titled under C.) elects against the will, — in either of 
 
 these two oases, the benefit given by the will of A., to 
 
 C . in the first case, or to D . in the second case, is saddled 
 with a charge in favour of B., for the full amount of the 
 market value of the estate of C. (or late of C.) which was 
 given by the will of A. to B. (k), — the charge (as above 
 mentioned) never exceeding (in amount) the value of the 
 property which is charged with it; and if C. elect (or if 
 
 D. elect) against the will of A., and deny the validity 
 of such a charge, he will (usually) have to pay also the 
 costs of the action to enforce the charge (Z). 
 
 Wnere, in a post-nuptial settlement, there is a cove- Election in 
 nant by the husband (and wife) to settle all the wife's cg^euanta^t 
 personal property which shall fall into possession during settle wife's 
 the coverture, — and part falls in, and is settled; and other P^P^^ty. 
 parts afterwards fall in, but the wife refuses to allow 
 these also to be settled, — The Court says, that the wife 
 
 (A) Cavan v. Pulteney, 3 Ves. 384. 
 
 (i) Oooper t. Cooper, L. E.. 7 H. L. 53. 
 
 (k) PickersgUl v. Rodger, 5 Ch. D. 163, on p. 173. 
 
 (l) Sogers v. Jones, 7 Ch. D.'315. 
 
178 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 is bound to elect (as between the settled part and the 
 unsettled parts (m)); and the like rule is applicable to 
 the wife's reversionary interests in personal property(«), 
 — and also to her real estates in fee simple (o), or in fee 
 tail (p). 
 
 The intention It being necessary, in order to raise a case of election, 
 if t*^t>e'soSgM that a clear intention to dispose of that which is not the 
 for,— and it donor's own should appear on the instrument itself, — 
 ™L^face of therefore, if the words used are capable of being otherwise 
 the wUi itself . satisfied, no case of election will arise (g); and parol 
 
 evidence is not admissible for the purpose of raising a case 
 
 of election (r ) . 
 
 With regard to the mode of signifying one's election, — 
 Married women elect as to -real estate by deed acknow- 
 ledged, — the husband concurring, of course, in the deed; 
 and they elect as to personal estate also by deed acknow- 
 ledged \Scil., where Malins' Act is applicable (s)), and 
 the husband again concurring : But where the Court has 
 seisin of the matter, an inquiry may be directed, as to 
 which of the two interests is the more beneficial for the 
 married woman to take, — ^and she will then elect accord- 
 ing to the result of the inquiry {t) . And, of course, as 
 regards their separate estates, married women (being of 
 full age) elect like any male adult, — Soil.-, where no re- 
 straint on anticipation is annexed to their separate estate; 
 but where such a restraint is annexed, if (under the cir- 
 cumstances) the married woman must elect, she could only 
 do so with the aid of the Court, and by virtue of the 
 provision contained in s. 39 of the Conveyancing Act^ 
 1881 . And although it seems, that a married woman may 
 elect by conduct, — being conduct whereby she is estopped 
 from denying that she has elected (m) ; yet she cannot be 
 so estopped, where the separate estate is subject to the re- 
 
 Modes of 
 electing : 
 (1) Married 
 women,— 
 they elect as 
 to land by 
 deed acknow- 
 ledged ; and as 
 to money, by 
 direction of 
 Court on 
 Inquiry. 
 
 (m) Anderson v. Abbott, 23 Beav. 457. 
 
 {n) Codrington v. Codrington, L. R. 7 H. L. 854. 
 
 (o) Brown v. Brown, L.'R. 2 Eq. 481. 
 
 (p) Oreen v. Oreen, 2 Mer. 86. 
 
 \q) Shuttleworth v. Greaves, 4 My. & Or. 35. 
 
 ()•) Bummer v. Pitcher, 2 My. &'K. 262. 
 
 (s) 20 & 21 Vict. 0. 57. 
 
 (i!) Wilder v. Piggott, 22 Ch. Div. 263. 
 
 (!() Barrow v. Barrow, 4 K. & J. 409. 
 
ELECTION. 179 
 
 stramt on anticipation (x), — Soil., while that restraint 
 continues : 
 
 As regards infants, the practice is not quite uniform, (2) infants, 
 
 being adapted to the necessities of the case : That is to tai o?age^; or 
 
 say, the period of election may be deferred, until the else elect 
 
 infant comes of age; or there may be a reference to oJcourton 
 
 inquire what is most beneficial for the infant, and the inquiry. 
 Court will elect for him upon the result of that inquiry. 
 
 And as regards lunatics, the practice ie to refer the matter —iheyeiecr' 
 
 to a. Master in Lunacy, to report as to what is best for the by direction 
 
 lunatic; and the Court elects on the report (y); but the inquiry. 
 Court may, in a proper case, defer the matter: 
 
 Persons compelled to elect are entitled previously to Privileges of 
 ascertain the relative values of the two properties between peiSd' to elect, 
 which they are called upon to elect; and an election made 
 under a mistake of fact will not be binding (0). Also, what is 
 in all cases of election by conduct, — the queistion as to deemed an 
 whether there has been an election or not, must be deter- conduct', 
 mined (like any other question of fact) upon the circum- 
 stances of each particular case, — and theTe can, of course, 
 be no election without the intention of eleoting (a) . 
 
 And Vhen a time is limited for the election being made. Election 
 a person who does not elect within the time will be con- f^g^J^gj^j. _ 
 sidered to have elected against the instrument (&). ,0n tbe where no 
 other hand, where no time is limited, the Court will fg^^_ ™ ™ 
 not readily hold a man to be concluded by the mere lapse -^ ^ . j^ . , j^^ 
 of time, — so that if he merely continues in his former may exclude 
 enjoyment, he will not be taken to have elected (0), — Question 
 unless where (by reason of his delay) he is estopped election, 
 (other considerations having in the meantime arisen) from 
 disturbing the enjoyment of others (<Z) . 
 
 (x) BaUman v. Faber, 1897, 2 Oh. 223. 
 
 (y) Be Sefton [Earl), 1898, 2 Ch. 378. 
 
 (z) Kidney Y. Goussmaker, 12 Ves. 136. 
 
 (a) milon V. Parker, 1 Swanst. 380, 387. 
 
 (5) Fytche v. Fytehe, L. E. 7 Eq. 494. 
 
 («) Mutlow V. Bigg, 1 Ch. D. 385. 
 [d) Tidbits v. Tiibits, 19 Ves. 663. 
 
 n2 
 
180 
 
 CHAPTER XII. 
 
 PERFOEMANCE. 
 
 Where a person covenants to do an act, and he does 
 some other act of a kind to be available for the perform- 
 ance of his covenant, he is presumed to have had the 
 intention of performing the covenant, — Soil., because 
 " Equity imputes an intention to fulfil an .obligation." 
 
 The cases in which questions of performance aris©, 
 range themselves under two classes, viz., (1) Where there 
 is a covenant to purchase and settle lands, and a pur- 
 chase is in fact made; and (2) Where there is a covenant 
 to leave personalty to A., and the covenantor dies intes- 
 tate, and property thereby comes in fact to A. 
 
 I. Covenant I. In Lechmere v. Earl of Carlisle (a), — Where Lord 
 
 laiSs^— ^^^ L. (upon his marriage with Lady E.) covenanted to lay 
 
 Zeehmerev. q^^^^ — within One year after his marriage, and with the 
 
 decision in; ' consent of the trustees, — £30,000 in the purchase of free- 
 
 lands in possession, in the south part of Great 
 Britain, to be settled on himself for life, with remainder 
 (for so much as would amount to £800 a year) to his wife 
 for her jointure, with remainder to the first and other 
 sons in tail-male and with the ultimate remainder to 
 himself in fee simple; and it appeared, that Lord L. 
 was seised of certain lands in fee at the date of the 
 marriage; and that after the marriage (but without the 
 consent of the trustees) he purchased other estates in fee 
 simple of about £500 per annum (together with certain 
 estates for lives and reversionary estates in fee simple 
 expectant on lives) and contracted for the purchase of 
 
 (a) 3 P. Wms. 211 ; Ca. t. Talb. 80. 
 
PERFORMANCE. ^°^ 
 
 other estates in fee simple in possession ; and he then 
 died intestate, — without issue, and without having made 
 a settlement of any of these estates; and the plaintiff 
 was his heir-at-law, and (as such) claimed specific per- 
 formance of the covenant, — that is to say, to have the 
 £30,000 laid put as agreed,— It was held, that the free- 
 hold lands purchased and contracted to bo purchased in 
 fee simple in possession after the marriage (though with 
 but part of the £30,000) should go in part performance of 
 the covenant; but that the estate purchased previously to 
 the 'ynarriage {the leaseholds for lives, sni the reversions in 
 fee expectant on the estates for lives) should not go in 
 part performance of the covenant; wherefore these four anddeduc- 
 points were established by that decision, namely: — tionsfrom. 
 
 (1) Where the lands purchased are of less value than (i) Periorm- 
 
 the lands :oovenanted to be purchased and settled, good^j-o 
 they will be considered as purchased in part *""'''• 
 performance of the covenant; 
 
 (2) Where the covenant points to a future purchase (2) Previously 
 
 of lands, lands of which the covenantor is f^d^do^not 
 already seised at the time of the covenant are count, 
 not to be taken in part performancle of it; 
 
 (3) Property of a different nature from that covenanted (3) Lands pur- 
 
 to be purchased by the covenantor is not avail- gu^^abfe, d™" 
 able as a performance: And, not count. 
 
 (4) The absence of the consent of the trustees will not (4) Trustees' 
 
 prevent the performance; aMA,nota bene, if the p™chase,— 
 cbvenant had heen to pay the money to the trus- want of, is 
 tees, to be laid out by them in the purchase of ™™^ ™' ' 
 the lands, that also would have been imma- 
 terial (&). 
 
 A covenant to settle land (being, in general, a mere Covenant to 
 specialty debt) will not create a lien on the lands after- not create a 
 wards purchased, — so that it will not affect a purchaser lien on lands 
 (or mortgagee) of the lands, even with notice (o) ; but 
 the covenant is specifically enforceable against all volun- 
 
 (J) Sowden v. Sowden, 1 Bro. 0. C. 682. 
 (c) Deamn v. Smith, 3 Atk. 323. 
 
182 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 tears (d) ; and if the covenant was to acquire and settle 
 specified lands, — that would (or might) create a lien(e). 
 
 Covenants to 
 settle after- 
 acquired pro- 
 perty, con- 
 struction of. 
 
 As regards the after-acquired property of the wife, and 
 the covenant to settle same, which is (not unusually) in- 
 serted in marriage settlements, — It appears, that these 
 covenants, unless the words thereof are clear to the con- 
 trary, operate only "during the coverture" when the wife 
 is the survivor, — although they may operate also beyond 
 the coverture when the husband is the survivor (/), — the 
 phrase "during the coverture" intending, in general, dur- 
 ing all the period of the husband's possible inter- 
 ference (g). The after-acquired property may come from 
 the husband himself (h), or from any other person, — but 
 extends not (in general) to include the wife's fee-tail 
 estates in remainder {i), — nor her contingent interests in 
 personal estate (fc), — nor her general powers of appoint- 
 ment (I), — nor (any interests of hers which are a mere spes 
 suooessionis (m), or which are given to her for her life 
 only (n), — nor any jewellery given to her, or property 
 purchased by her with her savings (o), — and, of course, 
 property which the wife is already at the date of the 
 marriage entitled to, is not after-stcqnired property, or 
 within such a covenant (p) . 
 
 II. Covenant II. In the case of the covenant of a husband to leave 
 ty^T^raiT' "lis wife a gross sum of money,— If, through his de9,th 
 share under intestate, the wife becomes in fact entitled (under the 
 Distributions. Statutes of Distribution) to a portion of his personal 
 property, — Is such distributive share a performance of the 
 
 (d) Wellesley v. WellesUy, 4 My. & Cr. 561. 
 («) Montaga v. Sandwich, 32 Oh. D. 52fi. 
 (f) Coling v. Eaden, 1898, 2 Oh. 220. 
 (y) Davenport v. Marshall, 1902, 1 Ch. 82. 
 
 (h) JElUs V. Bllis, 1909, 1 Ch. 618 ; and Fhimtree's Marriage Settlement. 
 1910, 1 Ch. 609. 
 
 (i) Nott V. Dunsany, 1906, 1 Ch. 678. 
 Uc) Atcherley v. Bu Moulin, 2 K. & J. 186. 
 ]}) TretnaynoM. Rashleigh, 1908, 1 Ch. 681. 
 im) Allcardv. Walker, 1896, 2 Ch. 369. 
 [n) Gregory v. Soicding, 1904, 1 Ch. 441. 
 (o) Bloicmn v. Clutterhuek, 190.5, 1 Ch. 200. 
 Ip) Bland v. Perkins, 1905, 1 Ch. 4, 
 
PERFORMANCE. 183 
 
 covenant or not? The answer is, — It is; and it is not, — 
 according" to (;he following distinctions, that is to say ; — 
 
 Firstly, If the death of the husband occurs at the time (i) When hus- 
 when, or before the time when, the obligation ought to be ocrar's at^or'^ 
 performed, — The widow's distributive share will be taken before time 
 as a performance of the covenant, — pro tanto or in toto, ^"ugation 
 according as that share is less than, or equal to or greater accrues, distri- 
 than, the sum due under the covenant (a), — Scil., because ^S^Ii!^™t* 
 
 1 • 1 1 T )^^^ T • 7 T-j- perionnance. 
 
 the covenant is to be taken as not broken during the Life 
 of the husband; and there being no breach of the cove- 
 nant, there is no debt . 
 
 But, Secondly, If the death of the husband occurs after cijWherehus- 
 the obligation under the covenant has arisen, — or (in other oocmb ^er^ 
 words) after a breach of the covenant, — the widow's dis- obligation ac- 
 tributive share is not a. performance of the obligation; a^ve^gh^re^ot' 
 and, where the husband's covenant was, to pay to his a performance, 
 wife within two years after the marriage, and he lived 
 after the two years, — and then died intestate, leaving a 
 larger sum (than what he covenanted to pay) to devolve 
 upon his widow as her distributive share, — The widow was 
 held entitled, both to the money under the 'covenant and 
 to her distributive share under the statute (r). 
 
 And upon this sort of covenants, these two further Covenant,— 
 points should be noted,— Firstly, that the covenant may aisol'sufpen-' 
 have been (in effect) discharged altogether, — Scil., by the sion'of. 
 events which have happened since the marriage (s) ; 
 and, Secondly, that although, where a man marries his 
 creditor, the marriage operates to discharge the debt, 
 still that rule is not (and never was) applicable to the 
 covenant of a husband to pay (or leave) to his widow at 
 his death a certain sum of money (t). 
 
 (q) Blandtj v. IFidmore, 1 P. Wms. 323. 
 ()■) Oliver v. Brickland, 3 Atk. 420. 
 
 (s) Jones v. Eow, 7 Ha. 267 ; and see Plumtree's Marriage Settlemeni, 
 1910, 1 Ch. 609. 
 
 (t) Smith T. Stafford, Hob. 216 ; Cage v. Actoii, 1 Ld. Eaym. 515. 
 
184 
 
 CHAPTEE XIII. 
 
 SATISFACTION. 
 
 Satisfaction (like performance) supposes intention, but 
 (in satisfaction) the thing done is something different 
 from the thing covenanted to be done, — whereas (in per- 
 formance) the identical act which the party contracted 
 to do is considered to have been done. 
 
 The cases on satisfaction group themselves under three 
 heads, namely, — (1) Satisfaction of Debts by Legacies; 
 (2) Satisfaction of Legacies by Legacies; and (3) Satis- 
 faction of Legacies by Portions, — and, conversely, of 
 Portions by Legacies. 
 
 I. OfdeMs I. Satisfaction of Debts by Legacies. — In this group 
 
 egacies. ^^ cases, the general rule is, "that if one, being indebted 
 to another in a sum of money, does (by his will) give him 
 a sum .of money as great as, or greater than, the debt, 
 without talcing any notice at all of the debt, this shall 
 be in satisfaction of the debt " {a), — because " Debitor non 
 presumitur donare." 
 
 But the presumption is not favoured by the Court: 
 Therefore, — 
 (1) Legacy less (1) If the legacy be less than the debt, it is not a 
 than debt. Satisfaction, even pro tanto(b). But 
 
 iquaUo^or (2) If the legacy be given simpUciter, and be equal 
 
 greater than, to the debt (c), — or if the legacy be given sim- 
 
 ^^^^' pliciter, and be greater than the debt (d), — In 
 
 either of these cases, the legacy will be taken as 
 
 {a) Talbot v. Shrewshury, Preo. Ch. 394. 
 (*) Eastwood -v. J'inke, 2 P. Wins. 617. 
 («) Sayncs v. 3Iico, 2 Bro. C. C. 130. 
 Id) Talbot y. Shmosbury, supra. 
 
SATISFACTION. 186 
 
 a satisfaction of the debt, — So that if {e.g.) 
 the debt is afterwards discharged by payment 
 before the testator's death, the legacy also may 
 have ceased to be payable (e). 
 
 (3) No presumption of satisfaction will be raised where (3) Debt 
 
 the debt of the testator was contracted subse- '^'if^^^,^ 
 
 /j*\ 1 ''i / \ alter will. 
 
 quently to (j), — or oontemporaneously with {g), 
 — the making of the will, — Scil., because the 
 testator could have had no intention of satisfac- 
 tion in such a case. 
 
 (4) If there is an express direction in the will, for (4) Circmn- 
 
 the payment of the debts and the legades, both rebuttLgthe 
 the debt and the legacy will b© payable, — presumption, 
 according to the rule in Chancey's case (h), — (a) Direction 
 a rule which was (at one time) supposed not to mrat of°d?bte" 
 apply where the direction was to pay the debts ««(« legacies,— 
 alone (i) ; but a mere direction to pay the debts "^f debte " *" 
 is now of itself sufficient (fe) . alone. 
 
 (4a) If a time is expressly fixed for the payment of (b) Time for 
 the legacy, and that is different from the time fegaw differ- 
 when the debt is demandable, both the debt and ing from that 
 the legacy will be payable (Z), — notwithstand- °*"i«^*- 
 ing the fact, that the legacy carries interest 
 from the death (to) : And 
 
 (5) Where the legacy is of residue, — or is otherwise (c) Contingent 
 
 contingent, it will not be a satisfaction of the '®sacy. 
 debt (n), — even of a debt due to a child (o), — 
 and this is because a gift of residue is neces- 
 sarily uncertain; and a bequest of residue to 
 a wife even will not be a satisfaction of a debt 
 due to her (p) . 
 
 II. Satisfaction of Legacies by Legacies. — Firstly, i.i- Satisfac- 
 when legacies of quantity in the same instrument by°ubsei^aenT 
 
 legacies. 
 
 («) GilUngs v. Fletcher, 38 Oh. Div. 373. 
 
 (/) Cranmer's case, 2 Salk. 508. 
 
 (g) Wiggins v. Horlock, 39 Ch. Div. 142. 
 
 (A) 1 P. Wms. 408. 
 
 (i) Wiggins v. Horhck, 39 Ch. Div. 142. 
 
 (h) Sradshaw v. Siiish, 43 Ch. Div. 260. 
 
 {I) Clark v. Sewell, 3 Atfc. 96. 
 
 (m) Calham v. Smith, 1895, 1 Ch. 516 ; Ray v. Grant, 1906, 1 Ch. 667. 
 
 («) Barretter. Bechford, 1 Ves. Sr. 519. 
 
 (o) Crichton v. Crichton, 1895, 2 Ch. 853. 
 
 {p) Bartlett v. Gillard, 3 Ruas. 149. 
 
186 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (1) Under the 
 same instru- 
 ment: 
 
 (2) Under 
 different 
 instruments. 
 
 (whether a will or a codicil) are given to the same- 
 person simplieiter, and are of equal amounts, one only- 
 will be good (q) ; but if the legacies are of unequal 
 amounts, they will be cumulative (r) . And, Secondly, 
 where legacies of quantity are given simpliciter, by dif- 
 ferent instruments, to the same person, the legatee shall 
 have both or all the legacies; and (in such a case) it is 
 immaterial, whether the subsequent legacy differs or not 
 in amount from the prior one (s) . Also, note, that &. 
 donatio mortis causa of £2,000 is not satisfied by a sub- 
 sequent legacy of £2,000 (if). But if the legacies are 
 not given simpliciter, but the motive of the gifts is ex- 
 pressed in each, and the same motive is expressed in each, 
 and the same sum is given, the Court considers, that the 
 testator did not (by the subsequent instrument) mean 
 another gift, but only a repetition of the former gift (m),. 
 — Seil., where the double coincidence occurs, of the same 
 motive arid the sanne sum in both instruments. But if 
 (in either instrument) there be no motive expressed, or a 
 different motive is expressed in each (x) ; or if the sam^e 
 motive be exptiessed in the different instruments, but the 
 sums are not the same (y), — In feithet or all of these cases, 
 the legacies will be cumulative, — Soil., unless where the 
 second instrument expressly refers to the first, — or either 
 by intrinsic evidence (2), or by extrinsic evidence (a), is 
 shown to be a mere copy (or duplicate) of the first. 
 
 Extrinsic evi- And, on the question of the admissibility of extrinsic 
 admissible'and evidence in such a case, the two following rules appear to 
 when not. hold ^ood, 'namely : — 
 
 (1) That where the Court itself raises the presumption 
 against double legacies, such evidence is admissible, — to 
 
 {q) Greenwood v. Greenwood, 1 Bro. C. C. 31, «. 
 
 [r) Yochney t. Hansard, 3 Hare, 620. 
 
 (s) Moeh T. Gallen, 6 Hare, 531. 
 
 (*) Hudson Y. Spencer, 1910, 2 Ch. 285. 
 
 (u) Benyon v. Benyon, 17 Ves. 34. 
 
 (x) Ridges v. Morrison, 1 Bro. C. C. 388. 
 
 ()/) Hurst V. Beach, 5 Mad. 352. 
 
 (z) Currie v. Pi/e, 17 Ves. 462. 
 
 («) JFhytev. Whyte, L. R. 17 Eq. 50. 
 
SATISFACTION . 1 ° ' 
 
 show that the testator intended the legatee to take both; 
 But 
 
 (2) That where the Court does not raise that contrary 
 presumption, no such evidence is admissible, — to show that 
 the testator intended the legatee to take in fact one only. 
 
 III. Satisfadtion of Legacies by portions, — cmd eon- in. Satisfao- 
 vesr&ely. — In ithis group of cases, the general rule (&) is, — typortiof,^and 
 That where a parent, whether out of his own pro- viceversd. 
 perty or under a special power of appointment vested ^Xeonj^''' 
 in him (c), gives a legacy to a child (not stating the pur- payaWe. 
 pose with reference to which he gives it), the Court under- 
 stands him as giving a portion; and therefore, if the 
 father subsequently advances a portion on the marriage 
 of the child, the portion is presumed to be a satisfaction 
 of the legacy (either pro tanto or in toto), — Scil., Because 
 the Court " leans against double portions" : 
 
 But a^ regards these double provisions, the doctrine of ^^^^ does not 
 
 satisfaction applies, only where the parental relation (or legacies and 
 
 its equivalent) exists; and if therefore a person gives a ^j"^""^*^? 
 
 leglacy to a stranger, and then makes a settlement on that eluding (for 
 
 strangier, — or first agrees to make a settlement on the a^ii^e^f^^^te 
 
 stranger, and then bequeaths a legacy to him, — the child, 
 stranger (usually an illegitimate child) is entitled (in 
 either case) to claim both (d) . 
 
 But if a legacy (say, of residue) is given to be divided Legacy to 
 
 equally among children and stratigers, and the children's children and 
 
 le^cies are afterwards satisfied by portions, and the strangers,— 
 
 strangers (including the illegitimate children) also receive of children's 
 
 advances, — These last-mentioned advances would not shares,— effect 
 operate (it is true) as a satisfaction of the strangers' shares 
 of the residue; but neither would these latter shares be 
 increased by the satisfaction of the children's shares (e) . 
 Also, even in the case of strangers (including illegiti- 
 
 (J) Polhch V. Worrall, 28 Ch. Div. 552. 
 
 (c) Biddulph V. Peel, 1911, 2 Ch. 165. 
 
 [d) Ex parte Fye, 18 Ves. 140. 
 
 («) Pwnfrey v. Fryer, 1906, 2 Ch. 230. 
 
188 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Legacy for a mate children), if the legacy be given for a particular 
 effect^where express purpose, and the testator advances money for the 
 advancement same purpose, that will be an ademption of the legacy (/), 
 
 for same pur- i , f •» ,, „ ,, i • ,. -c J 
 
 pose. — but not if the purpose of the legacy is not specaiiea, 
 
 although 'the purpose of the advancement is (g). 
 
 The presump- And, in passing, it may be observed, that the presump- 
 doubie per- tion against double portions, — although it has been some- 
 tionsis times characterised as a hard and artificial rule, and 
 
 founded on . . . 
 
 good sense. although it also Sometimes operates to produce inconveni- 
 ent results, — is really founded, upon the whole, on good 
 The presump- sense and justice (^); and that presumption applies, if 
 whCTTae^^' tlie donor has placed himself "in loco parentis" to the 
 donor has legatee (i) . ' 
 
 placed himself ^ ' 
 
 in loco parentis 
 
 0^^ e onee. Owing to the leaning of the Court against double por- 
 against double tions, the presumption of satisfaction will not be repelled 
 portions. T^j slight ciroumstances of difference between the legacy 
 
 and the portion, — although material differences may 
 Sameprinoi- oount. Therefore, in Thynne v. GlengallQc), where a 
 pies applicable, father. On the marriage of his daughter, agreed to give 
 ment comes her a portion of £100,000 Consols, — and made an actual 
 beforewiU,— transfer of one-third thereof to the trustees of the 
 
 at least m . i i • i i t. i 
 
 general,— marriage settlement, and gave them his bond for the 
 transfer of the remainder on his death; and the stock was 
 to ibe held in trust for the daughter's separate use for life, 
 and (after her death) for the children of the marriage, as 
 the husband and wife should jointly appoint; and it 
 appeared, that afterwards (by his will) the father gave 
 to the trustees a moiety of the residue of his personal 
 estate, in trust for the daughter's eeparalte use for life, 
 with remainder for her children generally as she should 
 by deed or will appoint, — The Court held, that the moiety 
 of the residue given by the will was a satisfaction of the 
 sum of stock not actually transferred, — being the portion 
 thereof secured by the bond. 
 
 (/) Corbett v. Lord Coiham, 1903, 2 Ch. 326. 
 
 (V) In re Fletcher, 38 Ch. D. 373. 
 
 (A) Lawes v. Laires, 20 Ch. T>. 81. 
 
 (i) Powys V. Mansfield, 3 My. & Cr. 359. 
 
 (k) 2 H. L. Ca. 131. 
 
SATISFACTION. 189 
 
 It is to be observed, however, that where the settlement Excepting 
 precedes the will, and the trusts are dissimilar, the persons ^^ere settle- 
 entitled under the settlement are qiuisi^purchasers, — and ment comes 
 therefore cannot .(ipo^ i^^J presumed intention of the takdigmdra 
 testator) be deprived (aqainst their mil) of their rights i* ^'^f quasi- 
 
 -. i T T/1 \ 11 purchasers^ — 
 
 under the settiement,^and (at the utmost) can only be with right to 
 put to elect, whether to take under the will or under the tife'^ge^tiraient 
 settlement (Z) ; and (for the purpose of such election) an and the will, 
 inquiry will be directed. But it is otherwise, when the 
 settlement is made subsequently to the will, — So that, 
 where a father bequeathed his residuary estate (which 
 comprised his business of a bookseller) equally between 
 his two sons and his three daughters; and subsequently 
 he assigned his business to the two sons, — The assignment 
 was held to be a SBitisfaction of the bequest to the sons (to) . 
 Also, .where a person in loco pmentis gave a bond to A. 
 for the payment to him of £10,000 on a day therein 
 specified; and afterwards (only a few weeks before the 
 day) he took A. into partnership with him, — That was 
 held to be a satisfaction of the bond (w), — although the 
 thing substituted was only remotely ejusdem generis (o). 
 
 Where the donee of a special power of appointment Appointment 
 appoints (by will) the whole fund equally among his ^^'e^f^T^en 
 children, — ^and afterwards appoints (by deed) a portion of a satisfaction. 
 the fund to one of such children exclusively, — the rule 
 against double portions will not, in general, apply, — So 
 that the last child appointee (by deed) will share also and 
 equally with the whole class of children, — Soil., unless 
 the appointment (by deed) has been, in fact, a mere anti- 
 cipation of the share appointed by the will, and has been 
 accepted as sueh by the appointee (p) . And generally, The testator's 
 in all cases of alleged satisfaction, the surrounding cir- 2*hou°h'not 
 cumstances (including the true construction of the will) express, but 
 must be considered, and the intention fairly ga,thered may^'exciude' 
 therefrom (^q) . satisfaction. 
 
 {[) Chichester v. Coventry, L. R. 2 H. L. 87. 
 (m) Tickers v. Vickers, 37 Ch. 625. 
 (n) Zawes v. Zawes, 20 Ch. Div. 81. 
 (o) Bodgson v. Braisby, 1903, 1 Ch. 267. 
 (jo) Ingram v. Papillon, 1897, 2 Ch. 574. 
 [q) Whitehouse v. Edwards, 37 Ch. Div. 683. 
 
190 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Sum given by 
 second instru- 
 ment, if less, 
 satisfaction 
 pro tanio. 
 
 Lefjacy to a 
 •child or wife, 
 teing a 
 creditor. 
 
 Advancement 
 to child or 
 wife, heing a 
 -creditor. 
 
 Debt owing by 
 child to 
 father, — 
 forgiven by 
 father, is an 
 advancement. 
 
 Extrinsic 
 evidence, — 
 question of its 
 admissibility 
 
 It was for a long time unsettled, whether, if the sum 
 given by the second instrument was smaller than that 
 given by the first, the less sum operated as a total satis- 
 faction of the larger; but the true rule was at length' 
 established, that an advancement subsequent to the will, 
 if less in amount than the sum given by the will, was a 
 satisfaction fro tanto only {r) . It is to be. remembered, 
 however, that every payment by a father to his child 
 is not to be regarded as a portion for the ohild, — or as 
 being on account of that child's portion, — the contrary 
 being usually the case (s) . 
 
 Where a parent or husband gives a legacy to his 
 child (t) or wife (m), to whom he is already indebted, — 
 The case stands on the same footing as a legacy to any 
 other person in satisfaction of a debt (x) ; and that is 
 also so, whether the debt has arisen upon the covenant 
 of the husband (y), or has arisen on account of some 
 breach of trust (z) . And where a parent (indebted to 
 his child) advances to the child (upon marriage) a portion 
 equal to or exceeding the debt, it will prima facie be 
 considered a satisfaction (a) ; and (in such a case) it 
 is immaterial, that the child may be ignorant of the 
 debt(fe). Also, conversely, if a son is indebted to his 
 father, and the father gives up the debt to the son, and 
 afterwards dies intestate, — The Court considers, that {to 
 the extent of the debt so forgiven) the son is advanced, 
 — So that, in such a case, he mus't bring the amount 
 into hotchpot, before he will be permitted to share with 
 the other children in the distribution of the intestate's 
 estate (c) . 
 
 The rule against double portions being a presumption 
 of law, it may (like other presumptions of law) be re- 
 
 (?■) Pi/m V. Lockyer, 5 My. & Cr. 29. 
 
 (s) Taylm- v. Taylor, L. E. 20 Eq. 155. 
 
 \t) Stochen v. Stocken, 4 Sim. 152. 
 
 («) Fowler v. Fowler, 3 P. Wms. 353. 
 
 [x) Crichton v. Orichton, 1895, 2 Ch. 853. 
 
 [y) Cole V. Willard, 25 Beav. 568. 
 
 (z) Phmkett v. Lewis, 3 Hare, 316. 
 
 (ffi) Gillings v. Fletcher, 38 Ch. Div. 373. 
 
 (i) Wood V. Briant, 2 Atk. 521. 
 
 (c) Bleckley v. Blockley, 29 Ch. Div. 250. 
 
SATISFACTION. 
 
 191 
 
 l)utte(i by evidence of pxtrinsic circumstances; and, in omou- 
 Kirk V. Eddowes (d), where a father bequeathed £3,000 admissibility. 
 for the separate use of his daughter for life, with ulterior 
 trusts for her children, — and he subsequently gave the 
 •daughter and her husband a promissory note for £500; 
 and the defendants (the executors of the father), desiring 
 to show, that the £500 was a satisfaction pro tanto of 
 the legacy of £3,000, tendered parol evidence of the de- 
 clarations of the father at the time of handing over the 
 note, — Wigram, V.-C, held, that the evidence was admis- 
 sible, observing: — "If a second instrument do not in 
 terms adeem the first, but the case is of that class in 
 whioh (from the relation between the author of the in- 
 strument and the party claiming under it) the law raises 
 a presumption that the second instrument was an ademp- 
 tion of the gift by the instrument of earlier date, evi- 
 dence may be gone into, to show, that such a presumption 
 is not in accordance with the intention of the author 
 of the gift; and where evidence is admissible for that 
 purpose, counter -evidence is also admissible, — Because, of 
 course, in such cases, the evidence is not admitted for 
 the purpose of proving (in the first instande) with what 
 intent either writing was made, but for the purpose only 
 of asdertaining, whether the presumption which the laiv 
 has raised be well or ill founded." 
 
 {d) 3 Ha 509. 
 
192 
 
 CHAPTER XIV. 
 
 ADMINISTRATION OF ASSETS. 
 
 Assets, 
 
 (1) Legal 
 assets. 
 
 (2) Equitable 
 
 The property of a deceased testator (or intestate), re- 
 garded in the light of its liability to answer the debts 
 of the deceased, is called his assets; and assets are either 
 legal or equitable, — (1) Legal assets comprising such 
 portions of the property as were always available at law 
 for the payment of the debts, — and with which, accord- 
 ingly, the executor or administrator (as such) was charge- 
 able in lan action at law by a creditor of the deceased; 
 and 
 
 (2) Equitable assets' comprising such portions of the 
 property as used to be availa,ble for the creditor in a 
 Court of Equity only (a) . 
 
 Legal and 
 equitable 
 assets,— im- 
 portance of 
 distinction 
 between, for- 
 merly and at 
 present. 
 
 The distinction between legal and equitable assets was 
 formerly of much more importance than it is now, — Scil., 
 because, out of legal assets, the specialty debts were paid 
 before the simple contract debts; while, out of equitable 
 assets, these two different species of debts were payable 
 pari passu (b); but Hinde Palmer's Act (c) abolished the 
 priority of specialty debts over simple contract debts (d), 
 in the administration of the legal assets of all persons 
 dying on or after the 1st January, 1870. 
 
 The order of In the case of persons who have died before the 
 
 ^""me'^'t of^" ^^^ January, 1870, the following was the order in which 
 
 debts,— out of the different species of debts were payable out of legal 
 
 legal ^sets as assets, — That is to sav: — 
 
 regards deaths '' 
 
 before 32 & 33 /i v t^ i i . x 
 
 Vict. c. 46. (1) Debts due to the crown (by record or specialty), 
 
 (a) Coo/c V. Oregson, 3 Drew. 549. 
 ib) Plunkett v. Penson, 2 Atk. 290. 
 
 (c) 32 & 33 Viot. c. 46. 
 
 (d) Att.-6en. v. Leonard, 38 Ch. D. 622. 
 
ADMINISTRATION OF ASSETS. 193 
 
 — crown-executions also having priority over other exe- 
 cutions (e), and crown-distresses over other distresses (/). 
 
 (2) Debts which had priority by statute, viz., pro- 
 perty tax and income-tax (^r); poor-rates and other rates; 
 the amount due to a building society from the estate of 
 its secretary (Iv), or the amount due to a savings bank 
 from the estate of its actuary {i), or to a friendly society 
 from the estate of its treasurer {It) . 
 
 (3) Judgments against the deceased duly registered, 
 and unregistered judgments against his personal repre- 
 sentatives (Z), — but not mere orders to sign judgment(m). 
 
 (4) Recognisances and statutes. 
 
 (5) Specialty debts for value, — including arrears of 
 rent(j2); calls on shareholders (o), &o. 
 
 (6) Debts by simple contract, — the crown again hav- 
 ing, priority here {p), — unregistered judgments against 
 the deceased {q), and claims for dilapidations under the 
 Ecclesiastical Dilapidations Act, 1871 (r), being (for 
 this purpose) regarded as simple contract debts. 
 
 (7) Voluntary bonds, — excepting that if the voluntary 
 bond had (in the life of the obligor) been assigned for 
 value, it stood on the same footing as a specialty debt for 
 value (s) . 
 
 By running together the debts comprised in the fifth The order of 
 and the sixth of the above-mentioned groups, you obtain priority in the 
 the order in which the different species of debts were debts,— out of 
 always payable out of equitable assets; and in cases «?««^«W« 
 where Hinde Palmer's Act applies, the order last men- (under the Act 
 tioned is also the order in which the different species of °* 1^69) out of 
 debts are now payable out of legal assets also, — the effect **^" ^^^ ^' 
 
 [e] Giles v. Grover, 1 CI. & F. 72. 
 (/) Ait.-Gen. v. Leonard, 38 Ch. D. 622. 
 iff) Re Banley ^ Co., Limited, 9 Ch. Div. 469. 
 (h) Moors T. Marriott, 7 Ch. Div. 543. 
 («) Savings Bank Act, 1891, s. 13. 
 
 (k) In re Miller, 1893, 1 Q. B. 327 ; 69 & 60 Vict. c. 25, s. 35 ; Savings 
 Banks Act, 1891, s. 13. 
 
 {I) Re Williams, L. E. 15 Eq. 270 ; Smith v. Morgan, 5 C. P. D. 337. 
 
 (»») Clifford \. Gurney, 1896, 2 Ch. 863. 
 
 («) Shirreffv. Bastings, 6 Ch. Div. 610. 
 
 (o) Buck V. Robson, L. E. 10 Eq. 629. 
 
 [p] Bentinck v. Bentinck, 1897, 1 Ch. 673. 
 
 (q) Van Gheltiive v. Nerinoki, 21 Ch. Div. 189. 
 
 (r) TFayman v. Monk, 35 Ch. Div. 583. 
 
 (s) Fayne v. Mortimer, 4 De Gr. & J. 447. 
 
194 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Executor may 
 prefer one 
 creditor to 
 another, — ■ 
 until decree, or 
 receiver or 
 injunction. 
 
 Legal 
 assets, — 
 examples of. 
 
 of that Act (wherever it applies) being, to abolish (in 
 every administration action) the distinction between legial 
 and equitable assets, so far as regards creditors whether by 
 specialty or by simple contract. But, nota bene, the Act 
 has not prejudiced (t), but has even (semhle) enlarged(M), 
 the executor's right of retainer; and the Act has not in 
 any way prejudiced the crown's priority (x). 
 
 The order of payment above specified is that which is 
 observed, where the assets are applied in a due course of 
 administration: But there is nothing to prevent an exe- 
 cutor from paying one simple contract creditor before 
 another simple contract creditor (y), or from paying one 
 specialty creditor before another specialty creditor (z), or 
 from paying a statute-barred debt (a), — At least, at any 
 time before decree in an administration action, where no 
 receiver of the estate has been appointed or injunction 
 obtained (b). And, in order to prevent such preferential 
 payment, it is necessary, either to obtain an injunction or 
 the appointment of a receiver in the action before decree, 
 or else to obtain a speedy consent decree for administra- 
 tion (c), — or else sOme limited order to the same eEect(d). 
 And, nota bene, where the grant of probate is delayed, 
 and an interim administrator has been appointed, any 
 creditor may obtain a decree for administration (either 
 general or limited) against such administrator (equally, 
 as if he were an executor (e)); but you cannot get any 
 such decree until you have a legal personal representative 
 of some sort (/), — although you may (perhaps) be able 
 to get some interim protective relief (gr) . 
 
 Legal Assets comprise (among many other properties) 
 lands not charged with the payment of debts; and such 
 
 (i) Job V. Job, 6 Ch. Div. 562 ; Wilson v. Coxwell, 23 Ch. Div. 764. 
 
 (u) Sobbins v. Alexander, 1906, 2 Ch. 584. 
 
 {x) Bentinch v. Bentinch, supra. 
 
 \y) Waring v. Sanvers, 1 P. Wms. 294. 
 
 (a) Cunliffe-Smith v. Hankey, 1899, 1 Ch. 641. 
 
 (a) Bray v. Tofleld, 18 Ch. Div. 551. 
 
 lb) In re Radcliffe, 7 Ch. Div. 733 ; Vibart v. Coles, 24 Q. B. D. 364. 
 
 Ic) Sanson v. Stubbs, 8 Ch. Div. 154 ; In re Sargreaves, 44 Ch. D. 236. 
 
 (i) Brown v. Burdett, 40 Ch. Div. 244. 
 
 \e) Westwood-r. Booker, 1897, 1 Ch. 866. 
 
 {/) Sowselly. Morris, L. R. 17 Eq. 20. 
 
 (g) Goote v. Whittington, L. R. 16 Eq. 534. 
 
ADMINISTRATION OF ASSETS. 195 
 
 lands were for the first time made liable as assets for pay- 
 ment of the debts generally in 1833 (by the statute 3 & 4 
 Will. IV. c. 104, which extended to deceased non-traders 
 the remedy given in 1807, by the 47 Geo. III. c. 74 and 
 11 Geo. IV. & 1 Will. IV. 0. 47, against the estates of 
 deceased traders {h)); but the lands were (by that Act) 
 made liable in an administration action in equity only, — 
 and were not, until the Land Transfer Act, 1897 (»), 
 6. 2, sub-s. 2, made them so, liable otherwise than in such 
 an action. 
 
 Equitable assets, on the other hand, consist of (or com- Equitable 
 prise) (1) Property over which a testator (Zc) or testa- ^^j.^*^'.~ - . 
 trix (I) has exercised a general power of appointment (j) Equitable 
 vested in him or her, — Scil., to the extent that the power assets, by 
 is so exercised (m) ; and (2) The separate estate of a property itseii, 
 married woman, — it having been, in fact, only through —enumeration 
 a Court of Equity that the creditors of a married woman ° ' 
 could (at one time) have got at the separate estate at actuaUy'ap-^ 
 all(w); and the remedy which is now obtainable in a pointed in 
 Court of law against the separate estate, is still the equit- general power, 
 able remedy only(o). (b) Separate 
 
 estate of mar- 
 ried women. 
 
 Lands charged with (or devised upon trust for) the (2) Equitable 
 payment of the debts of the deceased are also equitable oFt^tator"^"* 
 assets; and between a charge and a trust, these distinc- charge of 
 tions are to be remembered, namely. Firstly, that, when debts distin- 
 lands are devised upon trust to pay the debts, the trust- ^'st— ™™ 
 devisee must retain the mesne rents and profits towards (i) inati-ust 
 payment of the debts; but if the lands are merely *f'^/^?™®''' 
 dharged with the payment of the debts, the person who mesne rents 
 (subject to the charge) is beneficially entitled to the lands to be retained; 
 takes (for his own benefit) the m'esne rents and profits, charge of 
 and is not, in the general case, liable to refund same, debts. 
 But, nota bene, if the lands devised are charged also (or 
 only) with the payment of the legacies, the legatees are 
 
 (h) Small V. Bedgely, 34 Ch. Div. 379. 
 (i) 60 & 61 Viot. c. 65. 
 (k) Tarda v. 'Bingham, L. R. 6 Eq. 485. 
 \V] Sell v. Stacker, 10 Q. B. D. 129. 
 («)) Barley v. Sadgson, 1899, 1 Ch. 666. 
 («) Murray v. Barhe, 3 Mv. & K. 209. 
 (o) Scott V. Morley, 20 Q. B. JD. 120. 
 
 o2 
 
196 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (2) In a trust 
 for payment 
 of debts, 
 lapse of time 
 no bar ; but 
 in a charge, 
 creditors may 
 be barred by 
 lapse of time. 
 
 not, in any case, entitled (as against the charged devisee) 
 to the back rents, — even although the estate should prove 
 insufficient for payment of their legacies (p) . 
 
 And it is to be remembered, Secondly, that, as between 
 an express trustee and his cestui que trust, no length of 
 time is a bar (q), — while if the creditors have merely a 
 charge upon the lands in their favour, they must look 
 after themselves (r) : That is to say, for a devastavit 
 by executors, the remedy is barred after six years (s), — 
 although, for an administration action, the period of 
 twelve years (formerly twenty years) is the limit in 
 general, — as regards both testators and intestates, — save 
 as regards assets subsequently falling in(i); and under 
 the Real Property Limitations Act, 1874, s. 10, as regards 
 any legacy, even where it is charged upon (or payable 
 out of) land (w), the twelve years' limit of time for the 
 recovery thereof is now applicable, notwithstanding that 
 the legacy is also secured by^ an ex-press trust (x) : And, 
 nota bene, it makes no difference that the land is rever- 
 sionary (y), — a, chargee by will, differently from a chargee 
 by deed (z), having no right of foreclosure. 
 
 Statute-baiTcd As regards the Statutes of Limitation generally, — The 
 the'^i^y or"" statutes 21 Jac. I. c. 16 (simple contract debts) and 3 & 4 
 may not be Will. IV. c. 42 (specialty debts) bar the remedy only, 
 but do not extinguish the debt itself; but the statutes 
 3 & 4 WiU. IV. c. 27 and 37 & 38 Vict. c. 57 (moneys 
 charged on land) not only bar the remedy, but also ex- 
 tinguish the debt (a), and the Trustee Act, 1888, s. 8, 
 would, semble, be interpreted distributively, in order to 
 preserve that distinction. 
 
 It follows, that an executor may not pay a debt which 
 has been wholly extinguished by the 3 & 4 Will. IV 
 c. 27 and 37 & 38 Vict. c. 57, — ^although he may (and a 
 
 paid by the 
 executor. 
 
 (p) Allen V. Lnngstaffe. 37 Ch. Div. 48. 
 
 \q) Hughes v. Wynne, T. & R. 309. 
 
 ir) Scott V. Jones, 4 CI. & Fin. 382. 
 
 (s) Slake v. Gale, 22 Ch. Div. 820. 
 
 (i!) Sowles V. Syatt, 38 Ch. D. 609. 
 
 (u) Ja4/ V. Johnstone, 1893, 1 Q. B. 189. 
 
 (x) Warburion y. Stephen':, 43 Ch. Div. 39. 
 
 ii/) In re Oweti, 1894, 3 Ch. 220. 
 
 (z) Hugill V. Wilkinson, 38 Ch. D. 480. 
 
 (a) Sanders v. Sanders, 19 Ch. Div. 373. 
 
ADMINISTRATION OF ASSETS. 197 
 
 trustee also may (b)) pay a debt barred by the 21 Jac. I. 
 c. 16, or 3 & 4 Will. IV. c. 42— and either of them may 
 (until there is a decree for administration) do so, although 
 the personal estate is insufficient for the payment of the 
 other debts (c). But, after a decree or judgment for Effect of 
 administration, the executor may no longer voluntarily judgment for 
 pay a statute-barred debt, — the other creditors, — and even adnmiistra- 
 the legatees or next of kin, — being entitled to object to regards^ 
 the payment of the statute-barred debt (d), — other than statute -barred 
 the plaintiS's own debt(e). Also, nota bene, a specific. ® ' 
 devisee, if the plaintiff-creditor was proceeding against 
 him in the action, might have objected (and still, of 
 course, may object) to the payment of the statute-barred 
 debt of the plaintiff also (/); but if no one objected, the 
 Court would not itself have refused to pay a statute- 
 barred debt (g) . But when the estate is insolvent, — and Effect, if 
 the administration thereof is within s. 10 of the Judica- goj^g^J^" 
 ture Act, 1876, — no debt that is statute-barred may now 
 be paid in the administration. 
 
 A debt which is statute-barred under the 21 Jac. I. Effect of 
 c. 16, may be revived by a written acknowledgment made me^°of * ^" 
 to the creditor containing a promise to pay (h) ; and statute-barred 
 similarly, a debt which is statute-barred under the 3 & 4 ® '■ 
 Will. IV c. 42, may be revived by such a written acknow- 
 ledgment, — only the acknowledgment need not (in this 
 latter case) amount to a promise to pay, and may there- 
 fore be made to a third person (i) ; and every such 
 acknowledgment, when given by one of several executors, 
 suffices to bind the personal estate of the deceased, 
 although not to bind the co-executors of the acknow- 
 ledging executor personally (7c) . But as regards debts 
 within the 3 & 4 Will. IV. c. 27 and 37 & 38 Vict. c. 57, 
 if the debt be already extinguished by the statute, no 
 acknowledgpoaent can possibly revive it (I) . 
 
 (b) Budgett v. Budgeit, 1895, 1 Ch. 202. 
 («) Lowis V. Sumnet/, L. R. 4 Eq. 451. 
 {d) Moodie v. Bannister, 4 Drew. 432. 
 
 (e) Briggs t. Wilson, 5 Be G. M. & a. 21. 
 
 (f) Briggs v. Wilson, supra. 
 
 (g) Hunt V. Wenham, 1892, 3 Ch. 59. 
 
 (h) Mitchell's case, L. E. 6 Ch. App. 822. 
 
 (i) Moodie v. Bimnister, supra. 
 
 (k) Dick V. Fraser, 1897, 2 Ch. 181 
 
 {/) Sanders y. Sanders, supra. 
 
198 
 
 THE ORIGINALLY EXCLUSIVE JUEISDICMON . 
 
 Joint liabiKty 
 of heir and 
 devisee under 
 3W. &M. 
 c. U. 
 
 A general 
 direction "by 
 testator for 
 payment of 
 his debts, — 
 effect of. 
 
 Effect, where 
 testator has 
 specified a 
 particular 
 fund for pay- 
 ment of debts. 
 
 Effect, where 
 executors, not 
 being also 
 devisees, are 
 directed to pay 
 the debts. 
 
 Real estate (unless charged with debts) not having been 
 originally liable for the payment of the debts, — excepting 
 only such debts as the testator had specifically bound' 
 himself and Ms heirs to pay, — and testators having been 
 still at liberty, even after specifically binding their heirs, 
 to defeat their creditors by devising the lands away from 
 their heirs,— Therefore, by the statute 3 W. & M. c. 14, 
 commonly called " the Statute of Fraudulent Devises," 
 the devisee of a debtor who had specifically bound liis 
 heirs was made liable jointly with the heir: Therefore, 
 in such a case, if the 'heir or the devisee aliened the lands, 
 the purchase-moneys received on the sale thereof were 
 liable for the debts; and afterwards (by the 11 Geo. IV. 
 & 1 Will. IV. o. 47) such heir or devisee, — -to the extent 
 of the value of the lands so alienated{m), and although 
 the alienation was equitable only {n), — became personally 
 liable for the debts of the deceased, equally as for his own 
 debts: But, nota bene, residuary legatees and next of 
 kin, alienating their beneficial shares and interests, are 
 not within any of these provisions (o). A mere general 
 direction by a testator, that his debts shall be paid, 
 effectually charges them on his real estate (p), — ^although 
 there are certain exceptions to that: Because, Firstly, 
 where a testator (after a general direction for the pay- 
 ment of his debts) specifies a particular fund for the 
 purpose, " the general charge by implication is controlled 
 by the specific charge " {q) ; and, secondly, where the 
 debts are directed to be paid by the executors, and they 
 (the executors) are not also the devisees of the real 
 estate, the presumption is, that the debts are to be paid 
 exclusively out of the assets which come to the executors 
 as Buoh (r) . 
 
 Sale,--and ^ direction to raise the required money for the pay- 
 
 mOTtg^e^— ment of the debts, out of the "rents and profits" of the 
 fqrpayment real estate, amounts, in general, to a charge upon the 
 corpus or inheritance, — and therefore authorises a sale or 
 
 of debts. 
 
 ()») Small V. mdgeVy, 34 Ch. Div. 379. 
 
 («) In re Atkinson, 1908, 2 Ch. 307. 
 
 (o) BUkes V. Broadmead, 2 De G. P. & J. 566. 
 
 (p) Legh v. Warrington, 1 Bro. P. C. 611. 
 
 (q) Price v. North, 1 Ph. 85. 
 
 {r) Cook V. Dawaon, 3 De a. P. & J. 127. 
 
ADMINISTRATION OF ASSETS. 199 
 
 mortgage of the real estate for that purpose (s), — Secus, 
 if the direction is to pay the debts out of the " annual 
 rents and profits" {t). And where the charge is on the 
 corpus or inheritance, the Court inclines to directing a 
 sale rather than a mortgage, — but will direct a mort- 
 gage, where there are sufficient reasons against a sale (m). 
 
 A specific lien or dharge upon the lands will, of course, Purohasersand 
 not be affected by a general charge of the debts,— That ^^S'^t~ 
 is to say, — Neither debts by specialty nor simple contract when not 
 debts constitute any lien or charge upon the lands {x), — ^e debts!^ 
 So that a purchaser or mortgagee of the lands, — even 
 an equitable mortgagee thereof {y), — before any action 
 for administration of the real estate has been instituted, 
 — would take free of (and would not be bound to inquire 
 into the existence of) the debts: But if an action for 
 the administration of the real estate has been commenced, 
 and a decree has been made therein, — or if (even before 
 decree) the action has been registered as a lis pendens, 
 and extends to claiming against the real estate, — the pur- 
 chaser or mortgagee would not be safe in completing his 
 purchase or mortgage (2). But none of these risks 
 attach to sales and mortgages of personal estate (a) . 
 
 Judgment debts may or may not be or become a charge Judgment 
 or lieu on the lands, — Scil., as against a purchaser or and when nS 
 mortgagee of the lands: The law is complicated, — the andhowmade, 
 legislation having been as follows:— UnS°''*''^ 
 
 (1) By the 4 & 5 W. & M. c. 20 (s. 3), a judgment 
 debt (unless docketed) had no preference in the adminis- 
 tration of the assets, but only ranked pari passu with 
 simple contract debts, — So that the executor might have 
 preferred to such judgment creditor any simple contract 
 creditor ; 
 
 (2) By the 1 & 2 Vict. c. 110 (s. 19) and 2 & 3 Vict. 
 
 (») Bootle V. Blmdell, 1 Mer. 232. 
 
 (t) Baldoelc v. Green, 40 Ch. D. 610. 
 
 («) Metcalfe Y. Hutchinson, 1 Ch. Div. 691. 
 
 \x) Holmes v. Holmes, 1907, 2 Ch. 304. 
 
 (y) British Mutual v. Smart, L. E. 10 Ch. App. 567. 
 
 (z) Fries T. Frioe, 35 Ch. Dit. 297. 
 
 (a) Bernj y. Gibbons, L. E. 8 Ch. App. 749, n. 
 
200 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Administra- 
 tion under the 
 Judicature 
 Act. 1875 
 (38 & 39 Vict. 
 c. 77), a. 10 — 
 when estate 
 insolvent. 
 
 0. 11, a judgment was required to be registered (and 
 also every five years re-registered) in the Court of Com- 
 mon Pleas, — and otherwise it did not affect subsequent 
 purchasers, mortgagees, or creditors (fe); And, latterly, 
 —by the 23 & 24 Vict. c. 38 (s. 1), the execution also, 
 which had issued on the judgment required to be regis- 
 tered, and to he thereafter put in use within three calendar 
 months; and 
 
 (2b) By the 23 & 24 Vict. c. 38 (s. 3), the protection 
 which the executor used to have against judgments re- 
 maining undocketed, was extended to judgments remain- 
 ing unregistered (<?) . 
 
 (3) By the 27 & 28 Viot. c. 112, a judgment (even 
 although duly registered) ceased altogether to be a lien 
 on the lands of the debtor, unless and until execution 
 had been sued out thereon and also registered, — either 
 the legal execution by elegit, or the equitable "relief 
 in the nature of exetiution," which -resulted from the 
 appointment of a receiver of the lands {d) : But, by the 
 51 & 62 Viot. c. 51 and 63 & 64 Vict. c. 26, the execution 
 or receivership order must now be registered at the Land 
 Registry (in the register there of uxrits and orders), — 
 and need not be registered elsewhere. 
 
 By the Judicature Act, 1875 (38 & 39 Vict. o. 77), 
 s. 10, — " In the administration by the Court of the assets 
 of any person who may die after the commencement of the 
 Act, and whose estate may prove to he insufficient for 
 the payment in full of his 'debts and liahilities " {in- 
 cluding the costs of the action for administration (e)), — 
 "and in the winding up also of any company, under the 
 Companies Act, 1908, s. 207, whose assets may prove 
 to be insufficient for the payment of its debts and liabili- 
 ties (and the costs of the winding up), — The same rules 
 are to prevail and be observed, — 
 
 " (1) As to the respective rights of secured and un- 
 secured creditors; and 
 
 (4) Benham v. Keane, 3 De G. P. & J. 318. 
 
 (c) Fuller V. Redman, 26 Beav. 600. 
 
 (d) Anglo- Italian Banlc v. JDavies, 9 Ch. Div. 275. 
 (c) Tarn v. Emmerson, 1S95, 1 Ch. 652. 
 
ADMINISTRATION OF ASSETS. 
 
 201 
 
 "(2) As to the debts and liabilities ■provable; and 
 " (3) As to the valuation of annuities aind future and 
 
 contingent liabilities respectively," — 
 
 as axe in force in bankruptcy: 
 
 I. As regards Secured and Unsecured Creditors. — The (a) Secured 
 old rule in Chancery was, that a secured creditor might creditors, 
 (in addition to his rights under his security) prove for the •"**'' '*• 
 whole amount of his debt against the general estate (/), — 
 but not so as to receive more than the full amount of his 
 debt. But he has now to elect, between (1) Resting on 
 his security (and compelling the trustee in bankruptcy 
 to redeem him) ; and (2) Realising his security and prov- 
 ing for the deficiency (if any {g)), — or else (3) Valuing 
 his security {h), — and revaluing it, if need be (a), — or 
 otherwise amending his original valuation (if inadver- 
 tently erroneous (fc)), — and proving for the deficiency (J): 
 But he may, of course, (4) Surrender his security, and 
 prove for the whole amount of his debt (m) . And, nota 
 bene, where he holds divers securities for divers debts, he 
 may not lump them, — Scil., as against the general credi- 
 tors (n), — ^nor, of course, as against any subsequent 
 secured creditor (o) . 
 
 A secured creditor is usually a mortgagee; but he may Secured 
 be a judgment creditor who has obtained a charging order ^^o are^'and 
 (on stocks or shares (p)), or a garnishee order nisi (q), or a ^^° are not? 
 sequestration order (r), and who has (in each case) duly 
 proceeded under the order (s) . Or generally, he may be 
 a judgment creditor, who has issued a fi. fa., an elegit, 
 
 (/) EeJUck's case, L. E. 3 Ch. App. 769. 
 [g) Quartermaine's case, 1892, 1 Ch. 639. 
 (A) Beering v. Bank of Ireland, 12 App. Ca. 20. 
 (i) In re Fanahawe, 1905, 1 K. B. 170. 
 (A) In re Attree] Ex parte Ward, 1907, 2 K. B. 868. 
 [1) King v. Chick, 39 Ch. Div. 567. 
 (m) Williams v. Bopkins, 18 Ch. Div. 370. 
 («) James v. London Sj County Bank, 1899, 1 Ch. 486. 
 (o) In re Fearce, 1909, 2 Ch. 492, overrulinff Fearce v. Bullard, 1908. 
 1 Ch. 780. 
 
 {p) Stewart v. Modes, 1900, 1 Ch. 386. 
 
 (q) Ex parte Joselyne, 8 Ch. Div. 327. 
 
 ir) In re Follard, 1903, 2 K. B. 41. 
 
 (s) In re Follard, supra; Re Webster, 1907, 1 K. B. 623. 
 
202 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Receivership 
 order, — effect 
 of. 
 
 Landlord, — 
 regards his 
 rent, not a 
 secured 
 creditor. 
 
 or other legal execution, — and who has duly followed up 
 the same: But an execution, unless duly followed up, will 
 not suffice (t). 
 
 A receivership order against lands, being first duly 
 registered, appmrs to- make the creditor a secured creditor, 
 without any occasion for him to do more (u) ; but a re- 
 ceivership order in the case of goods appears not to create 
 a charge in favour of the creditor, — Scil., as against a 
 subsequent assignee (whether purchaser or mortgagee) 
 who gives notice of his assignment (x) : At the same time, 
 the receivership order, even as regards goods, has some 
 sort of operation in favour of the creditor, — That is to 
 say, it may {being duly followed up) be perfected into a 
 charge (y) ; and in the meantime (and until it is so per- 
 fected) it prevents any subsequent judgment creditor (but 
 not any subsequent assignee) from getting priority {z) . 
 
 The holder lof a bill of sale, although unregistered, used 
 to be a secured creditor; and if registered, he would, of 
 course, still be one. But a landlord, in respect of hie 
 arrears of rent, is not a secured creditor, — vnthin the 
 meaning either of the Bankruptcy Act, 1883, or of the 
 Judicature Act, 1875 (a), — Scil., because, until the land- 
 lord's right of distress for these arrears has been exer- 
 cised by an actual seizure, the mere right of distress does 
 not give him any charge; and he has, in fact, no lien on 
 the goods distrained even after the distress (&), — Scil., 
 where the tenant replevies (c). Also, now, even where 
 the landlord proceeds to distrain, the sale proceeds arising 
 from the distress are liable to all preferential debts (d). 
 
 ^^mties^™'^ II. As regards the Debts and Liabilities provable.— 
 provable,— Under s. 37 of the Bankruptcy Act, 1883, all debts and 
 
 (t) In re Potts, 1893, 1 Q. B. 648. 
 
 (u) In re Pope, 17 Q. B. D. 743. 
 
 {x) Wigram v. Buckley, 1894, 3 Ch. 483. 
 
 (y) Flegg v. Prentice, 1892, 2 Ch. 428. 
 
 (z) Se aalve v. Gardner, 1903, 2 Ch. 727. 
 
 (a) Thomas v. Patent Lionite Co., 17 Ch. Div. 250. 
 
 (4) Newton v. Seolt, 9 Mee. & W. 434. 
 
 'c) Braddyl v. Ball, 1 Bro. C. C. 427. 
 
 'd) 8 Edw. Vll. u. 69, 8. 209. 
 
ADMINISTRATION OF ASSETS. 203 
 
 liabilities, present or future, oertain or contingent (other Bankniptcy 
 than damages for a tart, and other than debts and liabili- ■*■"'> 1883 : 
 ties contracted icith notice of an act of bankruptcy), to 
 which the debtor is subject at the ■date of the receiving 
 order (or to which he may before his discharge become 
 subject, by reason of any obligation incurred before the 
 date of the receiving order), are provable in the bank- 
 ruptcy, — including even, semble, the damages sustained by 
 the true owner of goods and chattels from the vesting of 
 such goods and chattels in the trustee in the bankruptcy 
 of the debtor by reason of the "order and disposition" 
 clause in the Bankruptcy Act, 1883 (e). And, by s. 30 Section 30. 
 of that Act, the order of discharge releases the bankrupt 
 from all the debts and liabilities which are so provable 
 (even from crown debts) (s. 150 (/)), — other than the 
 debts following, that is to say, — 
 
 (1) Debts due on recognisances; 
 
 (2) Debts due for offences against the revenue, — or due 
 on bail-bonds given in respect of revenue prosecutions ; 
 
 (3) Debts incurred by means of any fraud; 
 
 (4) Debts incurred ,by means of any fraudulent breach 
 of trust (g) ; 
 
 (5) Debts and liabilities forborne by any fraud, — in- 
 eluding (under the Bankruptcy Act, 1890 (h), s. 10), 
 debts in respect of affiliation orders, seduction judgments, 
 and divorce decrees. 
 
 Under s. 37 of the 1883 Act, any provable debt or Section 37. 
 liability (the value of which requires to be estimated) may 
 be declared by the Court to be incapable of fair estirnation, 
 — In which case, it ceases to be a provable debt, and will 
 not be destroyed by the bankrupt's discharge; but such 
 precautionary declaration is indispensable, if the debt or 
 liability is not to be destroyed by the bankrupt's dis- 
 charge (i) . 
 
 («) Ex parte JECaviside, 1907, 2 K. B. 180. 
 
 (/) In re Thomas, 21 Q. B. D. 380. 
 
 (g) Bx parte Coker, L. R. 10 Ch. App. 662. 
 
 (A) 53 & 54 Vict. 0. 71. 
 
 (t) Sardy v. Fothergill, 13 App, Ca. 351. 
 
204 
 
 Section 40. 
 
 Sectional. 
 
 Section 42. 
 
 Section 38. 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 By s. 40 of the 1883 Act, all debts proved in the btok- 
 ruptcy are to be paid pari passu, — Other than moneys of 
 a Friendly Society (Jt) in the hands of the bankrupt as the 
 duly appointed officer of the society (which are to be paid 
 before all other debts whatsoever); and other thaln the 
 following classes .of debts, — which are to have priority 
 over the other debts, and are inter se to be paid pari passu, 
 — That is to say, — 
 
 (1) Parochial rates said local rates generally, due from 
 the bankrupt at the date of the receiving order, and which 
 have (within the twelve months next before euch date) 
 become due and payable; Also, 
 
 {\a) Assessed taxes, land tax, and property or income 
 tax (not exceeding, in the whole, one year's assessment), 
 assessed on the bankrupt up to the 5th day of April next 
 before the date of the receiving order; And 
 
 (2) The wages and salaties (not exceeding £50 in each 
 case) of clerks and servants for the fowr months next 
 before the date of the receiving order ; and the wages 
 (not exceeding £25 (Z) in each case) of labourers and 
 workpeople for the two months next before the date of 
 the receiving order (to) ; and (under the Workmen's Com- 
 pensation Act, 1906 (w)), the compensation amount pay- 
 able to any workman under the Act. 
 
 And by s. 41 of the 1883 Act, an apprenticeship 
 premium may (as to a reasonable part thereof) be ordered 
 to be repaid, — according to an old principle of equity (o) . 
 
 By s. 42, a landlord may distrain for (and thereby be 
 paid in full) arrears of rent (not exceeding six months' 
 arrears), accrued due prior to the date of the order of 
 adjudication; and, by s. 38, a set-off is given in the case 
 of " mutual credits, mutual debts, and other mutual 
 
 {k) Jones v. Williams, 36 Ch. Div. 573. 
 
 7) 51 & 52 Vict. 0. 62, a. 1 ; 60 & 61 Vict. u. 19. 
 
 m) 51 & 52 Vict. o. 62. 
 
 «) 6 Edw. VII. c. 58, a. 5, aut-s. 3. 
 
 o) SaU V. Webb, 2 Bro. C. 0. 38. 
 
ADMINISTKATION OF ASSETS. 205 
 
 dealings," between the bankrupt and the proving 
 creditor (p) . 
 
 By s. 9, no creditor of the bankrupt is to have, in re- Section 9. 
 spect of any debt provable in the bankruptcy, any 
 remedy (outside the bankruptcy) against the person {q) 
 of the debtor, or against his property, — nor is he to 
 commence (unless with the leave of the Court) any action 
 in respect of such debt; but a mortgagee's remedy by 
 foreclosure is not affected by any of these provisions {r) . 
 
 Therefore, generally, where the estate is insolvent, — Rules of proof 
 All debts (including even voluntary bonds (s)) are now ^^^^"^^ 
 payable pari passu in an administration in the Chancery iaapplicable in 
 Division, — Nevertheless, crown debts still retain (in Chancery, 
 effect) their priority (i); and a Savings Bank (m), or a detits!^°™^ 
 Friendly Society {x), still retains its priority; and a (2) Judgment 
 judgment creditor, semble, still retains his priority, — detts, &c. 
 provided his judgment has been obtained against the 
 executor of the deceased debtor (y), or against the ad- 
 ministrator of the deceased debtor (0), — or (if obtained 
 against the deceased debtor himself) has been duly 
 registered (a) . Also, those rules of bankruptcy which (3) Arrears 
 go merely to "swell the assets" (so to speak), — namely, o*rent. 
 the rule as to the limitation of the landlord's right of 
 distress for rent in arrear (6); and the rule as to reputed (4) Beputed 
 ownership (c) ; and the rule as to the avoidance of volun- ownership, &c. 
 tary settlements (d) ; and the rule as to the avoidance of 
 executions for £20, where the sheriff has notice within 
 fourteen days after the levy (e), — and generally of 
 
 (p) In re Daintrey, 1900, 1 Q. B. 546. 
 (q) BoMUeh v. Mist, 1 P. Wms. 694. 
 ()•) Hardy v. Farmer, 1896, 1 Ch. 904. 
 (s) Ex parte Pottinger, 8 Ch. D. 621. 
 \t) In re Oriental Bank, 28 Oh. Div. 643. 
 («) Savings Banlcs Act, 1891, s. 13. 
 (x) Re Miller, 1893, 1 Q. B. 327. 
 
 \y) Smith v. Morgan, 5 C. P. D. 337 ; Crawler v. Marvin, 1905, 2 Ch. 
 490. 
 
 (a) Williams v. Williams, L. E. 15 Eq. 270. 
 (a) Whitaker v. Palmer, 1901, 1 Ch. 9. 
 (4) Fryman v. Fryman, 38 Ch. Div. 468. 
 (e) Gorringe v. Irwell Co., 34 Ch. Div. 128. 
 (d) In re Gould, 19 Q. B. D. 92. 
 («) Pratt V. liman, 43 Ch. Div. 175. 
 
206 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 executions not perfected before the date of the receiving 
 order (/), — those rules have (none of them) been intro- 
 duced into the administration in Chancery. 
 
 Bules of 
 proof in bank- 
 ruptcy that 
 are made 
 applicable in 
 Chancery. 
 
 (1) Debts, 
 proof of. 
 generally. 
 
 (2) "Wages and 
 salaries, &c. 
 
 (3) Bates, &c. 
 
 (4) Set-off. 
 
 (5) Interest. 
 
 (6) Late 
 proofs, &c. 
 
 (7) Principal 
 and ancillary 
 administra- 
 tions. 
 
 On the other hand, the preferences which by the Pre- 
 ferential Payments in Bankruptcy Act, 1888 {g), as aidetl 
 by the Workmen's Compensation Act, 1906 Qi), are given 
 to wages and salaries, compensation-amounts for acci- 
 dents, parochial and other rates, and assessed taxes, are 
 applicable in the administration of an insolvent estate (i). 
 And as regards the set-off of debts, — the mutual credit 
 clause in the Bankruptcy Act, 1883, is applicable in 
 Chancery (A;) . 
 
 As regards interest, a creditor on the estate whose debt 
 bears interest is only entitled to interest up to the date 
 of the judgment for administration (Z); but if there is 
 any surplus, then (under s. 40 of the Bankruptcy Act, 
 1883) interest at the rate of 4 per cent, per annum on all 
 debts, and at the rate of interest they bear on all interest- 
 bearing debts, is payable from the date of the receiving 
 order (m). Also, generally, so long as there are assets, 
 creditors may come in and prove, not disturbing any prior 
 dividend (w). And there is the like distinction in ad- 
 ministration as in bankruptcy, between the principal 
 administration of assets and the administrations ancillary 
 thereto in foreign countries (o) : That is to say. Each 
 auxiliary local representative observes the rules applicable 
 to the administration within his own jurisdiction, — and 
 once he has satisfied all the debts and duties there, he re- 
 mits the surplus (if any) to the principal administrator; 
 but, of course, the lex loci rei sites is exclusively applic- 
 able to the real estate (including the leaseholds) of the de- 
 ceased (p) . Also, nota bene, in the case of Stock Exchange 
 
 {/) In re National Corporation, 1901, 1 Ch. 950. 
 
 (g) 51 & 52 Vict. u. 62. 
 
 (A) 6 Edw. VII. c. 58. 
 
 (i) ParUngton v. Heywood, 1897, 2 Ch. 593. 
 
 [k] Mersey Steel Co. v. Naylor, 9 App. Ca. 434. 
 
 (Z) King v. Chicle, 39 Ch. Div. 567. 
 
 (m) In re Duncan ^ Co., 1905, 1 Ch. 307. 
 
 (n) Sarrison v. Kirk, 1904, A. C. 1. 
 
 (o) Eames v. Hucon, 18 Ch. Div. 347. 
 
 \p) Freke v. Lord Carbery, L. R. 16 Eq. 461. 
 
ADMINISTRATION OF ASSETS. 207 
 
 defaulters, an administration in Chancery may follow 
 upon the Stock Exchange administration (g*). 
 
 Ill . As regards the Valuation of Annuities and Future (c) Valuation 
 and Contingent Liabilities. — By s. 37 of the Bankruptcy ^f^aunuities, 
 Act, 1883, the trustee in the bankruptcy is to make an 
 estimate of the value of any provable debt or liability 
 which does not bear a certain value; and (on appeal from 
 the trustee's estimate to the Court) the Court may (with- 
 out a jury) assess the value, or may declare the debt or 
 liability incapable of being fairly estimated: Therefore 
 the value of an annuity payable to a female, for her 
 life (r) or during her widowhood (s) or dum casta 
 fuerit {t), must be estimated, — due weight being of course 
 given to the possibility of cesser (when there is a possi- 
 bility of cesser) during the life of the annuitant {ii) ; and 
 these rules apply to an administration in Chancery {x) . 
 
 Also the estate of a deceased insolvent may (under Admmistra- 
 s. 125) be wholly wound up in the Bankruptcy jurisdic- ^ent "estates — 
 tion {tf) , — And the necessary order in that behalf may may te in 
 be made at any time after (or even now before (z)) the Bankruptcy 
 
 »■' in 11 ci ^^' Division, or m 
 
 expiration oi two months from the date oi the grant of the County 
 probate or of letters of administration, — Provided that ^°^^' 
 a legal personal representative has been appointed (a), 
 and provided also that no administration proceedings 
 have meanwhile been taken in the Chancery Division: 
 Which latter proceedings (if they have been already 
 commenced) may, however, for good cause, be transferred, 
 on the application of a creditor (&), — or without any such 
 application (c), — into the Bankruptcy Division. 
 
 The proceedings may also be transferred into the County Comt, 
 County Court (either before or after decree (<?)); and —jurisdiction 
 
 (q) In re Mendelssohn, 1903, 1 K. B. 216. 
 (r) Ashton v. Ross, 1900, 1 Oh. 162. 
 (s) Mx parte Blaketmre, 6 Ch. Div. 372. 
 (0 Ex parte Neal, \i Ch. Div. 579. 
 («) Ex parte Pearee, 13 Ch. Div. 262. 
 [x) Hillv. Bridges, 17 Ch. Div. 342. 
 (y) In re Mellison, 1906, 2 K. B. 68. 
 (s) 53 & 54 Vict. c. 71, s. 21. 
 (a) In re Sleet, 1894, 2 Q. B. 797. 
 (A) Jmes V. Williams, 36 Ch. Div. 573. 
 (e) Sardy v. Farmer, 1896, 1 Ch. 904. 
 (d) Atkinson v. Fou-ell, 36 Ch. Div. 233. 
 
208 
 
 THE OBIGINALLY EXCLUSIVE JURISDICTION. 
 
 insolvent 
 estate. 
 
 (by s. 122) the County Court may, during the life even 
 (of the insolvent debtor), — in lieu of ordering payment 
 of a debt by instalments (with a view to committal), — 
 make an order to administer the debtor's estate, — so as 
 to stay all civil proceedings against liim(e); and the 
 order is equivalent to a receiving order in bankruptcy, — 
 excepting as regards any executions not already per- 
 fected at the date of the order (/) . 
 
 A creditor's action for administration need not (and 
 (therefore should not), since the Land Transfer Act, 
 ,1897, express that it is on behalf of the plaintiff and all 
 other the creditors of the deceased, — not even where the 
 action extends to administering the real estate (g) . But 
 the action for administration can only be commenced by 
 one who is a creditor already at the date of commencing 
 the action, — That is to say, a mere liability will not (but 
 only a debt will) support that action (h), — ^although such 
 a liability, if it mature into a debt before the certificate 
 of debts made in the action, will be included in the certi- 
 ficate as a debt («') . Also, nota bene, the debt (on which 
 the plaintiff sues) must be a debt of the deceased him- 
 self, — and not a mere demand subsequently arisen against 
 the executor ,of the deceased (fc) . 
 
 Administra- 
 tion in 
 Chancery, — 
 
 The judgment for administration may be for adminis- 
 tration of the personal estate only, or it may be for 
 administration of the real estate also: 
 
 In a creditor's 
 action, — 
 (a) Personal 
 
 (aa) In ordi- 
 nary cases. 
 
 And, firstly, in an administration of the personal estate 
 only, — An account is directed of the debts generally, and 
 of the funeral expenses; and a further account is directed 
 of the personal estate generally, received [or (in effect) 
 received] by the executor, and of what is outstanding. 
 And, nota bene, an executor is allowed, in his accounts, 
 all his testamentary expenses (Z), and also all other "just 
 
 (e) Pearson v. Wilcock, 1906, 2 K. B. 440. 
 (/) Haduck v. Clark, 1898, 2 Q. B. 28. 
 (g) In re James, James v. James, 1911, W. N. 169. 
 {h) In re Margreavis, 44 Ch. D. 236. 
 (i) Thomas v. Griffith, 2 Ue G. F. & J. 65.5. 
 
 \k) Owen v. Delamere, L. R. 15 Eq. 134; hi re Kitson, 1911, 2 K. B. 
 109. 
 
 (I) Sharp V. Lush, 10 Ch. Div. 472. 
 
ADMINISTRATION OF ASSETS. 209 
 
 allowances," — so that neither of those need be (nor should 
 be(m)), specified in the decree for administration. The 
 decree operates for the benefit of all the creditors who 
 prove their debts under it; and after the decree is made, 
 the executor exercises his powers only with the sanction 
 of the Court (m), — and, in any case of difficulty, applies 
 for directions, — as to getting in (e.g.) any of the per- 
 sonal estate that may be outstanding; and he may (on 
 such an application) obtain leave also to bring or to 
 defend actions. 
 
 And under the decree, interest is computed on all debts 
 down to the date of payment, — on those that carry in- 
 terest at the agreed rate, and on the others at the rate of 
 4 per cent.; but as regards persons dying insolvent after 
 the 1st November, 1875, the Court allows interest oq 
 the interest-bearing debts only, and on these up to Ihe 
 date of the judgment for administration only (o): And, 
 in such a case, the plaintiff (p) and the executor (g) both 
 get their costs as between solicitor and client, — the costs 
 of the executor being payable in priority (r) . 
 
 Where the plaintiff is a partnership creditor, and asks (bh) Where 
 administration of the estate of a deceased partner, the fnp^artne^hip 
 judgment declares, firstly, that all the creditors of the 
 deceased are entitled to the benefit of the judgment; and 
 secondly, that the surplus of the deceased partner's estate, 
 — after satisfying his funeral expenses and sepaeate 
 debts, — was liable in equity at the time of his death to the 
 JOINT debts of the partnership: And, on the footing of 
 these two declarations, the decree then proceeds to direct 
 an account of the funeral expenses, of the separate debts, 
 and of the joint debts, and an inquiry what was the 
 personal estate of the deceased (s), — and adjourns the 
 further consideration. 
 
 (m) Sherwin v. Shakspear, 5 T)e G. M. & G. 517, on p. 534. 
 
 («) Berry t. Gibbons, L. K. 8 Ch. App. 747. 
 
 [o] In re Summers, 13 Ch. Div. 163. 
 
 (p) Wilkins v. Rotherham, 27 Ch. Div. 703. 
 
 [q) Moore v. Dixon, 15 Ch. Div. 566. 
 
 [r] Woodv. Turner, 1907, 2 Ch. 126. 
 
 (s) InreM'Rae, 32 Ch. Div. 613. 
 
210 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (b) Real and 
 
 Decree or 
 judgment for 
 administra- 
 tion, effect 
 of, — where 
 assets appro - 
 priated. 
 
 Secondly, in an administration of both the real and the 
 personal estates of the deceased debtor, — After the 
 accounts usual in a judgment for the administration of 
 the personal estate only, the judgment proceeds to direct 
 {in case the personal estate is insufficient) an inquiry as 
 to the real estate of the testator at the time of his death, 
 and what (if any) are the incumbrances thereon, and the 
 priorities of such incumbrances, — and then orders a sale 
 of the whole (or a sufficient part) of such real estate, with 
 the consent of such of the incumbrancers thereon as shall 
 consent thereto, and subject to tJie incumbrances of those 
 of them (if any) who shall not consent thereto. And, 
 nota bene, the sale-proceeds (on such a sale) are brought 
 into Court, to the " Real Estate " account; and such sale- 
 prooeeds are afterwards applied in payment (according 
 to their priorities) of the incumbrancers who consent to 
 the sale,' and (subject thereto) are applicable towards 
 helping the personal estate to pay the costs of the action 
 and the 'general debts of the testator; and there is, in 
 the general case, an apportionment of these costs between 
 the real estate and the personal estate (f). The Oourt 
 will also, in effect, " re-open the biddings," — Soil., in a 
 proper case (u). 
 
 The common judgment for administration being (as 
 already mentioned) a judgment in favour of all the 
 creditors who come in under the decree, — When the credi- 
 tors are found, and the due proportions of the assets are 
 set opposite their names, — so as to be appropriated for 
 or towards payment of their individual debts, — the sums 
 so appropriated become the property of the specified 
 creditors (x) ; and any subsequently accruing assets will 
 (upon the principle of the judgment of assets quando 
 acciderent) be appropriated in like manner, and in the 
 like proportions, — until the full amount of all the debts 
 so specified (with interest thereon) is paid or provided for, 
 — and the Statutes of Limitation cease to run once the ap- 
 propriation is made (y) : But the amounts so appropriated 
 (becoming and continuing the property of the individual 
 
 {t) Doughty v. Walker, 1907, 2 Ch. 149. 
 
 («) In re Thomas, Hartley v. Thomas, 1911, W. N. 143. 
 
 \x) Ashley v. AshUy, 4 Ch. Div. 757. 
 
 (y) In re Dennis, 1895, 2 Q. B. 630. 
 
ADMINISTRATION OF ASSETS. 211 
 
 eppropriatees (2)) can never, where they remain un- 
 claimed, become available for the other creditors, — For 
 if -A . leaves his money in Court, it does not thereby 
 become the property of B.; and the fact that A. and B. 
 are both creditors of one testator can make no difference: 
 Therefore, if it should happen, that one of the appro- 
 priatees is a limited company, — and (before receiving its 
 appropriation) it is dissolved, — the crown becomes en- 
 titled to receive the appropriation in its place (a) . But, 
 nota bene, as regards unclaimed dividends due from a 
 company, — The Statute of Limitations begins to run as 
 from the date of the declaration of the dividend, and the 
 company is not a trustee of such dividend for the share- 
 holder entitled thereto, — So that, after twenty years (b), 
 — the right of the shareholder to receive it will be barred, 
 — Scil., unless some special portion of the assets is appro- 
 priated for the unclaimed dividend, and notice of the 
 appropriation has been given to the shareholder. 
 
 The effect of an executor administering personal estate How and when 
 under the direction of the Court (or administering it, after clii upSi'the 
 advertising for creditors and claimants, under s. 29 of the beneficiaries 
 22 & 23 Vict. c. 35) is, — To protect him personally assets, 
 against any claims (of which he has no notice) thereafter 
 brought forward, by such creditors or claimants (includ- 
 ing next of kin(c)); and they are (all of them) left to 
 pursue their remedies against the distributees of the 
 estate (d) . But, if the executor has administered the 
 estate neither in the one nor in the other of those two 
 ways, then (just like a liquidator in a voluntary winding 
 up (e)) he remains persanally liable to any unpaid credi- 
 tor, — who may accordingly sue him, — in respect of and 
 to the extent of the assets received: In which case, the 
 executor (if he have duly administered) will be entitled to 
 call upon the distributees of the estate to refund (/) . The 
 creditor may, however, proceed also against these distri- 
 
 (z) Barthtt v. Charles, 45 Oh. Div. 4.')8. 
 
 \a) In re Eiggimon, 1899, 1 Q. B. 325. 
 
 (b) In re Artisans' Land Corporation, 1904, 1 Ch. 796. 
 
 \c) Newton t. Sherry, 1 C. P. D. 246. 
 
 (a!) Doughty v. Towmott, 43 Ch. Div. 1. 
 
 (e) Pulsjordy. Devenish, 1903, 2 Ch. 625. 
 
 (/) Jervis v. Wolferstan, L. R. 18 Eq. 18. 
 
 p2 
 
212 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 butees {g), — this latter remedy being a purely equitable 
 one; and the Court will not enforce it, if there are circum- 
 stanoes rendering it inequitable to do so (h) . 
 
 Creditors to 
 te paid, — 
 "before bene- 
 ficiaries receive 
 anything. 
 
 Order of 
 liability to 
 debts of the 
 different pro- 
 perties of 
 testator, — as 
 between such 
 properties 
 themselves 
 only. 
 
 Legatees and dtevisees are, of course, postponed to credi- 
 tors. But (subject to the prior rights of the creditors) the 
 legatees and devisees are respectively preferred inter se 
 to the next of kin and to the heir-at-law of the testator, — 
 the residuary legatees being the least favoured, although 
 residuary devisees rank on the same level as other de- 
 visees ; and the Courts have established, as between the 
 different properties of the testator and the beneficiaries 
 entitled thereto respectively, the following order of lia- 
 bility to the debts («'), that is to say: — 
 
 (1) The general personal estate, not bequeathed at all 
 
 or bequeathed by way of residue only (includ- 
 ing appointment property which is not other- 
 wise appointed save under a gift of residue (/c)); 
 
 (2) Real estate devised upon trust for the payment of 
 
 debts; 
 
 (3) Real estate descended; 
 
 (4) Real estate devised (whether specifically or by way 
 
 of residue), and charged with the payment of 
 debts; 
 
 (5) General pecuniary legacies (including annuities 
 
 and demonstrative legacies which have become 
 general) ; 
 
 (6) Specific legacies (including demonstrative legacies 
 
 that have remained demonstrative); and real 
 estate devised (specifically or by way of residue), 
 and not charged with debts, — a trust of personal 
 estate arising dehors the will being deemed a 
 legacy, — specific (I) or general (m), as the case 
 may be; 
 
 ((?) Jlnnter v. J'oung, 4 Exoh, Div, 256. 
 
 (A) Blake v. Gale, 32 Ch Div. 571. 
 
 (i) Giil/im V. Hunrork, 2 Atk. 427. 
 
 (A) Williamiv. Willinm-i, 1900, 1 Ch. 155. 
 
 (I) In re Maddmle, 1902, 2 Ch. 220. 
 
 (m) Irvine v. Sullivan, L. R. 8 Eq. 673. 
 
ADMINISTRATION OF ASSETS. 213 
 
 (7) Personalty or realty subject to a general power 
 
 of appointment, if and so far as the power has 
 been actually and specifically exercised (w), 
 either by deed (in favour of volunteers) or by 
 will; and 
 
 (8) Paraphernalia of widow. 
 
 The general personal estate is first liable, — ^as well for (i) Thegeneral 
 the debts, as for the costs of administration and the like; fstetT— 
 and it may also be liable for the damages recoverable on P??^^^ ^^' 
 a breach of the testator's covenant to expend money on 
 some specifically devised property, in exoneration of the 
 devisee thereof (o), — the covenant not being one of the 
 ordinary covenants incident to the relation of landlord 
 and tenant (p) . 
 
 The general personal estate may, however, have been Question,— 
 exonerated by the testator himself from its primary lia- ratrathepeV- 
 bility; and if the testator has (e.g.) appropriated any sonaity? 
 specific part of his personal estate for the payment of his 
 debts, and has also disposed of his general residuary per- 
 sonal estate, — The part so appropriated will be primarily 
 liable to the payment of the debts (in exoneration of the 
 general residuary estate), — Although, if the exonerated 
 residue should lapse (g), or if any part thereof should 
 lapse (r), the exoneration wiU cease to the extent of the 
 lapse. And a testator will occasionally create a particular 
 residue for the payment of his debts, and a general residue 
 for the payment of his legacies (s). But, if a testator ^^^^"^'"tv 
 will exonerate his personal estate from its primary lia- both a dis- 
 bility, he must show an intention, not only to charge perefnaity and 
 his real estate, but also to discharge his personal estate; a charge of the 
 and neither a general charge of the debts upon the real ^^ ^' 
 estate (t), nor an express trust for the payment of the 
 
 (m) Darley v. Bodgson, 1899, 1 Ch. 666. 
 (o) Eccks V. Milk, 1898, A. 0. 360. 
 \p) HawUns v. Haukins, 13 Ch. D. 470. 
 (?) Kilford T. Blaney, 31 Ch. Div. 56. 
 (r) Dacre v. Patriclcson, 1 Dr. & Sm. 182. 
 (s) Higgins v. Dawson, 1902, A. 0. 1. 
 (t) Sanks v. Busbridge, 1905, 1 Ch. 647. 
 
^14 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 debts out of the real estate (u), will be sufficient (of itself 
 alone) to exonerate the personal estate, — but if the per- 
 sonal estate is at the same time given as a whole to some 
 legatee, that will be sufficient, the personal estate, when 
 so given, being like a specific legacy given (x) . 
 
 Exoneration rphe primary liability of the general personal estate to 
 
 sonai estate, pay the dcbts us©d to extend to the mortgage debts, — 
 
 debteTthlrt^^ until, by Locke King's Act (y), the liability for the mort- 
 
 wise than gage debts was shifted on to the mortgaged ^tate itself. 
 
 under the 
 statute 
 
 17 & 18 Vict. Locke King's Act enacted, that " when any person shall, 
 King's Act), after the 1st January, 1855, die seised of or entitled to 
 andttieamend- ^j^y ggtate or interest" (not being, of course, an estate 
 tail (z)) "in amy lands or other hereditaments, which shaU 
 (at the time of bis death) be charged with the payment 
 of any sum or sums of money by way of mortgage, — and 
 such person shall not have signified any contrary or other 
 intention, — The heir or devisee to whom the lands shall 
 descend or be devised shall not be entitled to have th© 
 mortgage debt discharged or satisfied out of the p&rsond, 
 estate (or out of any other real estate), but the lands so 
 charged shall {as betw'een the different persons claiming^ 
 through or under the deceased person (a)) be primarily 
 liable for the payment of all the mortgage debts with 
 which the same are charged, — every pwt thereof hearing 
 its proportionate pm-t of the mortgage debt. 
 
 (1) state of According to the law as it existed prior to the Act, — - 
 
 L ^ k ^K^n^^s '^ '^'^^ ^^^^ '^^ devisee was prima facie entitled (in respect 
 
 Acts: of the descended or devised realty) to have the mortgage 
 
 wa?p^ariiy ^^^^ (upon it) paid out of the personal estate; and where 
 
 liahie,— unless the debt had been contracted by the deceased person him- 
 
 State dlvised ^^^t that rule was reasonable enough, — ^f or what had gone- 
 
 eum mere, or into his personal estate might fairly enough come out 
 
 exonerated. of it again ; but otherwise the rule was unfair, — and some- 
 
 («() Brydges v. Phillips, 6 Ves. 750. 
 
 (x) Broadbent v. Barrow, 31 Ch. Div. 113. 
 
 {y) 17 & 18 Viot. 0. 113. 
 
 («) Anthony v. Anthony, 1893, 3 Ch. 498. 
 
 (a) Bacre v. Patrickson, 1 Dr. & Sm. 186. 
 
ADMINISTRATION OF ASSETS. 216 
 
 times extravagantly unfair (b), — towards the personal 
 estate: But the mortgaged ©stat© might (by express words). 
 have been devised cum onere; and if the mortgage debt 
 was the debt of a previous owner of the mortgaged estate, 
 • — in other words, was an aneestral mortgage, — the mort- 
 gaged estate was the primary fund for its payment (c), — Mortgaged 
 Excepting that, if the deceased had adopted the ances- ma^^f3,^"' 
 tral debt as his oiwn debt, the ordinary rule applied, — Only when mort- 
 such an adoption was very difficult to prove, the owner's f nfestral debt, 
 adoption of the debt jor a particular pwpose not being — unless it had 
 deemed an adoption of it for this purpose also (d). Ho'w- as a personal 
 ever, now, by the effect of the Act, every mortgage is to '^''''*- 
 be treated as an ancestral mortgage, — unless a contrary the law," since 
 intention is expressed. But a purchaser for value is, of Locke King's 
 course, entitled to have the mortgages on the land com- 
 prised in his purchase discharged out of the purchase 
 money, — and he is not the less entitled to that, mei-ely 
 because he is also a devisee (e) . 
 
 Copyholds lands as well as freehold lands are within Copyholds 
 the Act; but leaseholds were not within the Act; and are^^^a^'^e 
 accordingly, the amending Act of 1877 (/) was passed, principal Act. 
 for the purpose of bringing leaseholds within it, — the Leaseholds are 
 amending Act applying to any testator or intestate who ^ending^Act 
 dies after the 31st Deoember, 1877 (g). 1877. 
 
 The words "sums by way of mortgage," occurring in 
 the principal Act, apply only to defined and direct charges 
 on specified estates, — but include equitable mortgage8(A), 
 estate duty charges {i), and also the charge to which a 
 judgment creditor, on the actual delivery of the lands in 
 execution, becomes entitled (k) . They used not to include Vendor's hen 
 the vendor's lien for unpaid purchase-money (Z),^but, '^™' '^ 
 
 (i) Ooppin V. Ooppin, 2 P. Wms. 240. 
 
 (c) Scott V. Beecher, 5 Mad. 96. 
 
 {d} Evelyn v. Evehjn, 2 P. Wms. 6.59. 
 
 («) In re Wilson, 1908, 1 Oh. 839. 
 
 (/) 40 & 41 Viet. u. 34. 
 
 Iff) Lowther v. Fraaer, 1904, 1 Ch. HI. 
 
 (A) Pembroke v. Friend, 1 J. & H. 132. 
 
 (i) In re Bowerrmn, 1908, 2 Ch. 340. 
 
 {k) Anthony v. Anthony, 1892, 1 Oh. 460. 
 
 [T) Mood V. Eood, 5 "W. R. 747. 
 
216 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 amending 
 Acts, 1867 
 (testators) 
 and 1877 
 (intestates). 
 
 by force of the amending Acts of 1867 and 1877 (to), 
 the "word " mortgage " now extends to include a lien (in 
 the case not only of testators, but also of intestates). 
 Also, divers other charg-es (of defined amount), althougTi 
 arising by implication of equity only, are now deemed 
 to fall within the Acts (ra). 
 
 Where a testator was one of several partners, — and he 
 made a mortgage of his own private land for a partner- 
 ship debt, — That was not regarded (for the purposes of 
 Locke King's Acts) as a mortgage debt of the testator(o), 
 — at least, where the partnership assets were sufficient to 
 answer all the partnership debts (p). Also, a liability 
 to expend money in buildings (on the specific land de- 
 vised or descended) is not a liability falling within the 
 Acts (q) . 
 
 " Contrary or 
 other inten- 
 tion" in prin- 
 cipal Act, — 
 it is STiiiicient 
 to charge the 
 personal, "with- 
 out at the 
 same time 
 discharging 
 the real, estate. 
 
 Upon the question, what is a " contrary or other inten- 
 tion " within the meaning of Locke King's -A.cts, — There 
 need not be both a discharge of the real estate and a charge 
 of the personal estate (r), but it is sufficient to show a 
 discharge of the real estate (s) : And, therefore, where 
 the personal estate was bequeathed on trust to pay, — or 
 subject to the payment of, — the debts, that used to be 
 sufficient; but, now, and as regards all testators who die 
 after the 31st day of December, 1867, the contrary in- 
 tention can only be declared, by words expressly or by 
 necessary implication referring to the mortgage dehts{t). 
 Also, the "contrary intention," even where it is shown, 
 may operate as only a partial exoneration of the mort- 
 gaged estate (m) . 
 
 Liahility of 
 executors for 
 mortgage 
 dehts of 
 testator,— and 
 
 Locke King's Acts do not afiect the rights of the mort- 
 gagees themselves: Executors are, therefore, liable to 
 provide (out of the assets of their testator) for all the 
 
 (m) 30 & 31 Vict. c. 69 ; 40 & 41 Vict. u. 34. 
 (m) Price v. John, 190.5, 1 Ch. 744. 
 (o) Ritson V, Mitson, 1899, 1 Ch. 128. 
 [p) Brettellv. Holland, 1907, 2 Ch. 88. 
 (g) Sprake v. Sap, 1898, 2 Ch. ,510. 
 ()•) Woolstencrnft\. Wmhtnicroft, 1 De G. P. & J. 347. 
 s) Em V. Tat'ham, 11 W. R. 475. 
 (4 Valpy^. Valpy, 1906, 1 Ch. 531. 
 (u) In re Bird, Bunt y. Thorn, 1909, 1 Ch. 287. 
 
ADMINISTRATION OF ASSETS. 
 
 217 
 
 mortgago debts, made by the testator himself or for which their pro- 
 he is personally liable; and apparently, no statute of tection against 
 
 - . . fT • 11 / ■ 1 1 • 1 • • same after 
 
 limitations will (without other circumstances combining distribution of 
 therewith) protect the executors from their liability in estate. 
 this respect (x) . But the executors may (as regards a 
 mortgage debt which they have left unprovided for) be 
 protected by the Statutes of Limitations coupled with 
 acquiescence or with laches on the mortgagee s part, — 
 it being only right (in such a case), that the executors 
 should be protected against the mortgagee's claim, — 
 Because, where an executor, with notice of a deht {y) 
 [as distinguished from a mere liability {z)\ parts with 
 all the assets amongst the beneficiaries, and leaves the 
 debt unprovided for, — he has no right himself to after- 
 wards call upon the beneficiaries to refund: Therefore, Liability of 
 where there has been laches or acquiescence on the part to^rSund^^' 
 of the mortgagee, — whereby the executor has been lulled towards pay- 
 into departing from his strict duty, — the Court will mortgage 
 protect the executor, leaving the mortgagee to proceed debts, 
 against the distributees for an order to refund (a) . 
 
 An executor is not entitled (at least in the general 
 case) to appropriate (before distributing the estate) any 
 part of the assets, to meet a liability of the testator's estate 
 that is merely contingent, — a liability {e.g.) which will 
 only arise, failing the person primarily liable (as, e.g., 
 the assignee of a lease of which the testator was the 
 lessee (6)): Nor may a lessor in general, require any 
 such appropriation to be made (c), — although where the 
 estate is insolvent, some such appropriation would be 
 expedient enough {d) . 
 
 Lands devised upon trust to pay the debts are liable (2) Lands ex- 
 next after the residuary personalty; and next after them, for paymenr 
 come real estates which have descended to the heir ; and o* debts, 
 then come (fourth in order) real estates (devised speci- assets! 
 fically or by way of residue) charged with the debts. 
 
 (ic) Bowles V. Eyatt, 38 Ch. Div. 609. 
 
 [y) Whittalcer v. Kershaw, 4.'j Ch. Div. 320. 
 
 («) Jervis v. Wolferstan, L. R. 18 Eq. 18. 
 
 (a) Blake v. Gale, 32 Ch. D. 571. 
 
 (b) Mellor v. South Australia, 1907, 1 Ch. 72. 
 
 (c) Kivg^r. Malcott, 9 Ha. 692. 
 
 (d) Fuller \. McMahon, 1900, 1 Ch. 173. 
 
218 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (3) Realty 
 descended, 
 
 (4) Realty 
 devised 
 charged with 
 debts, equit- 
 ahle assets. 
 
 (6) General 
 pecuniary 
 
 (6) Specific 
 legacies and 
 devises. 
 
 But if (by reason of lapse) the heir takes any of the land 
 devised which is charged with the debts, the land so 
 charged remains in the same order of liability as if it had 
 not lapsed (e); and since the Inheritance Act, 1833 (3 & 4 
 Will. IV c. 106), when land is devised to the heir, he 
 takes it as devisee, — and accordingly, is liable as such(/). 
 
 General pecuniary legacies are next liable, — By which 
 it is meant, that the proportion of the personal estate, 
 which the executor ^^ould (but for the debts) have set 
 apart to meet these legacies, is next liable; and next after 
 these come the specific legacies (gr), the specific devises(A), 
 and the residuary devises (i), — All which latter are (inter 
 se) liable pro rata, to contribute to the payment of the 
 debts; and the Land Transfer Act, 1897 (k), has made 
 no difference in that (I), — nor, in fact, in any other of 
 these rules of administration (m). However, any legacies 
 or portions, charged on such devises, do not contribute at 
 all (n). And, nota bene, all such legacies or portions, — 
 and the mortgages (if any) which may have been created 
 in order to raise them (o), are (inter se) payable on a 
 level. 
 
 (7) Property 
 over which 
 testator has 
 exercised a 
 general power 
 of appoint- 
 ment. 
 
 Real or personal property over which the testator has a 
 general power of appointment, which he has actually and 
 specifically exercised, — whether by deed (in favour of 
 volunteers) or by will, — is the property next applicable 
 for the payment of the debts ; and the appointed property, 
 to the extent that it is appointed (p), will vest in the 
 appointor's executors as part of his assets, — So as to be 
 subject to the demands of his creditors, — in preference 
 to the claims of the appointees (q) : But, for this purpose, 
 the testator must have shown a clear intention to make 
 
 {e) Stead V. Jlardaker, L. B,. 15 Eg. 175. 
 
 f/) Owenv. Gibbons, lflO.2, 1 Ch. 636. 
 
 {g) Fielding v. Preston, 1 De a. & J. 438. 
 
 (h) Mirehome v. Seaife, 2 My. & Cr. 695. 
 
 (t) Lancejield v. Iggiilden, L. R. 10 Ch. App. 136. 
 
 (k) 60 & 61 Vict. 0. 65, ss. 1, 2. 
 
 (I) Kempstery. Kempster, 1906, 1 Ch. 446. 
 
 (m) Trewhy v. Balh, 1909, 1 Ch. 791. 
 
 [n) Saunders-Davies v. Sattnders-Bavies, 34 Oh, Div. 482. 
 
 (o) Nightingale v. Reynolds, 1903, 2 Ch. 236. 
 
 (p) DarJeyY. Hodgson, 1899, 1 Ch. 666. 
 
 (q) Sperling v. Boohfort, 16 Ch. Div. 18. 
 
ADMINISTRATION OF ASSETS. 219 
 
 the property his own to all intents (r), — and so as that 
 any lapsed part of it would go to his own next of kin in 
 preference to the persons entitled in default (s) . 
 
 The mere appointment of an executor will not amount 
 to the exercise of a general power of appointment (t) ; 
 but if the testator gives legacies, and his own proper estate 
 is insufficient for the payment of such legacies in full 
 after all his debts are paid, the simple appointment of an 
 executor will operate to exercise the general power of 
 appointment, to the extent required for the payment of 
 the debts and of the legacies (m) . 
 
 Also, nota bene, all the above rules are (or may be) 
 applicable, whether the will (whereby the power of 
 appointment is or is not executed) be an English will or 
 be a foreign will admitted to probate here (x) . 
 
 Last in the order of liability come the paraphernalia (8) widow's 
 of the testator's widow, — She being preferred to all paraphernalia, 
 legatees and devisees, — and ranking, in fact, next after 
 the creditors of the deceased, — Soil., because parapher- 
 nalia, although liable to a husband's debts, cannot, by his 
 mil alone, be disposed away from the wife . 
 
 In the application of the testator's assets to the pay- Eetainerbjr 
 ment of his debts in the order above exemplified, the oririaandT^** 
 testator's intention is supposed to be the guide; but as limits, 
 regards the singularity of the Executor's Retainer, it 
 is uncertain, whether the right depends upon intention 
 at all, — the right arising, simply, from the executor's 
 inability to sue himself (in a Court of law) for the re- 
 covery of his own debt (y), and existing in the case of 
 legal assets only (z) . 
 
 But whatever the origin of the right, retainer is only 
 as against creditors in an equal degree with the 
 
 {r) Thurston v. Evans, 32 Ch. Div. 508. 
 (s) Shaw V. Marim, 1902, 1 Ch. 314. 
 [t) Stanton v. Lamiert, 39 Ch. D. 626. 
 
 [u) In re Seabroolc, Gray v. BaddeUy, 1911, 1 Ch. 151, following In rr- 
 Daries's Trusts, L. R. 13'Eq. 163. 
 
 {x) In re Pryoe, Lawfordy. Pryce, 1911, 2 Ch. 286. 
 
 iy) International Marine Co. v. Sau'es, 29 Ch. Div. 934. 
 
 (s) Thompson v. Bennett, 6 Ch. Div. 739. 
 
220 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 executor (a), — And if, therefore, the executor is a simple 
 contract creditor, he cannot (or, at least, it was supposed, 
 he could not) retain as against specialty creditors (not 
 even after Hinde Palmer's Act (6)), — nor yet as against 
 judgment creditors (c); but inasmuch as he can lawfully 
 pay a simple contract debt before a specialty debt of which 
 (at the time) he has no notice (d), so he can also validly 
 pay himself (i.e., retain his own debt), before a specialty 
 of which he has no notice (e). And, semble, the notice 
 would not, in either case, now matter (/) . 
 
 An executor may retain in respect of a debt of which 
 he is but a trustee (g), or co-trustee (h). Also, the right 
 of retainer exists in respect of a joint debt (i), — or an 
 equitable debt (&), — or a statute-barred debt (Z); and one 
 executor may retain out of a balance in the hands of 
 the executors generally (to) . 
 
 The right of retainer is not lost by a decree in an 
 administration action (w), — nor by payment of the fund 
 into Court to the credit of that action (o); nor by pay- 
 ment to an official receiver in a small insolvent adminis- 
 tration-proceeding (p) ; and the right exists in favour of 
 a married woman (executrix), in respect of moneys lent 
 by her to the deceased, — ^although such deceased should 
 have been her own husband, — and even where the loan 
 was made to him for the purposes of his business (q). 
 
 An administrator (equally with an executor) used to be 
 entitled to the right, — the retainer (although being a pre- 
 
 (a) Zmer v. Botham, 1895, 1 Q. B. 59. 
 (i) Calvei- v. Zaxton, 31 Ch. Div. 440. 
 [c) Crauter v. Marvin, 1905, 2 Ch. 490. 
 \d) Harmon v. Sarman, 2 Show. 492. 
 (e) Wingfteld v. Srskine, 1898, 2 Ch. 562. 
 (/) Robbins v. Alexander, 1906, 2 Ch. 584. 
 (g) Tweedie v. Haywood, 1901, 1 Ch. 221. 
 (A) International Marine Co. v. Salves, supra. 
 (i) Crowder v. Stewart, 16 Ch. Div. 368. 
 (/c) Morris v. Morris, L. K. 10 Ch. App. 68. 
 [T) Stahlsehmidt v. Lett, 1 Sm. & G. 415. 
 [m) Kent v. Pickering, 2 Keen, 1. 
 (■«) Campbell v. Campbell, 16 Ch. Diy. 198. 
 (o) Richmond v. White, 12 Ch. DiT. 361. 
 \p) In re Rhoades, 18i)9, 2 Q. B. 347. 
 (j) Crawford v. May, 45 Ch. Div. 499. 
 
ADMINISTRATION OF ASSETS. 231 
 
 ference) not being an "undue preference" {r); but an 
 administrator {administrating as a creditor simply) is not 
 now entitled to retain, the word " unduly " (in the adminis- 
 tration bond of such-creditor) being now left out. 
 
 Retainer may even be of the estate in specie (s), — For, Retainer 
 
 if an executor pays any debts (or redeems any pledges) '^^'^P'"^^- 
 of the deceased, with his (the executor's) otvn moneys, he 
 will be entitled to retain an equivalent part of the estate 
 
 in specie (t). And an executor who claims only as having no retainer 
 
 been a surety for the deceased, may retain, — the right of ^^ respect of 
 
 retainer, in this last case, being only in respect of debts (m), liability ; 
 
 and not in respect of mere liabilities (x) . or except outof 
 
 ^ ^ -^ assets come to 
 
 the executor's 
 
 An executor cannot, of course, retain out of moneys °^°Ji^'"i®- 
 which he holds as a trustee only for the estate of his 
 testator (y) ; and he may otherwise be deprived of the full 
 benefit of his retainer, — as where (e.g.) he has assented to 
 a composition {z). Also, an executor cannot retain out of 
 the assets which are recovered or received by a receiver' 
 appointed in an administration action (a) ; but a receiver 
 will not be appointed, merely for the purpose of defeating 
 the right of retainer (i>), — just as, conversely, money in 
 Court will not be paid out to the executor for the purpose 
 of giving him the right of retainer (c) . Also, the right of No retainer in 
 retainer does not exist, if the estate is administered in the admiuSiS 
 Bankruptcy Division; and it is lost, if the administration tion. 
 (pending in the Chancery Division) is transferred into the 
 Bankruptcy Division (d) . 
 
 The executor's retainer is limited to such assets as come 
 to his hands during his lifetime ; but if the executor asserts. 
 
 (r) Davies v. Farri/, 1899, 1 Ch. 602. 
 
 (s) In re Gilbert, 1898, 1 Q. B. 282. 
 
 (t) Dyer, 2a, ISIb. 
 
 («) Turner v. Watson, 1896, 1 Ch. 925. 
 
 (x) Lee T. Binm, 1896, 2 Ch. 584. 
 
 \y) Talbot T. Frere, 9 Ch. Div. 568. 
 
 (z) Birt V. Birt, 22 Ch. Div. 604. 
 
 («) Pulman v. Meadows, 1901, 1 Ch. 233. 
 
 (4) Molontj T. Brooke, 45 Ch. Div. 569. 
 
 («) Trevor v. Hutchins, 1896, 1 Ch. 844. 
 
 (ct) Jones V. Williams, 36 Ch. Div. 573. 
 
222 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 No retainer by 
 heir or de- 
 visee, — in the 
 general case, 
 at least. 
 
 the right in his lifetime, and then dies while the retainer 
 is incomplete, his executor may afterwards insist upon the 
 right (e). Also, the right of retainer (where it exists) 
 extends to include damages for breath of contract, whea 
 such damages are measurable (/); but where A. (or his 
 estate) is liable to B. for dama-gee (say, in respect of A.'s 
 neglect of repairs), and B. owes A. (or A.'s estate) any 
 debt (say, in respect of moneys lent), — aad the. debt is 
 statute-barred, the damajges may not be applied (Seil., 
 retained) in satisfaction of the debt (g) . 
 
 An heir-at-law or devisee has no retainer out of the 
 lands descending or devised, — except, possibly, in respect 
 of a specialty debt in which the heirs are specially 
 bound (h) ; Also, the better opinion is, that the Land 
 Transfer Act, 1897, vesting the real estates of a deceased 
 debtor in his legal personal representative, has not ex- 
 tended the rig'ht of retainer to these real estates (i) . 
 
 Eetainer,— In a Case where Brown was the legal personal repre- 
 
 (tatonTy*'""^' tentative of an estate X., and also of an estate Z.; and X. 
 was indebted to Z., — Brown was entitled, and also cow- 
 
 sometimes) be 
 compulsory. 
 
 pelldble to retain out of X. for the benefit of Z. (fc); 
 but where the debt owing by X. to Z. had arisen in respect 
 of a breach of trust (the deceased owner of X. being the 
 delinquent trustee of Z.), — and Brown was the legal per- 
 sonal representative of X., — and was (as such) entitled to 
 accept (if he chose to accept) the trust of Z., hut was also 
 free to decline to accept that trust, and did decKne it, — In 
 such a case, Brown was not compellable to retain out of X. 
 for the benefit of Z. (l). 
 
 Wilful default, The limit of the executor's liability is, in general, the 
 liabmty'for! assets which have come to his hands (or to the haJids 
 
 («) Norton v. Compton, 30 Ch. Div. 15. 
 (/) Zoane v. Casetj, 2 W. Bl. 965. 
 (si) Dingle v. Coppen, 1899, 1 Ch. 726. 
 (A) Davidson v. Illidge, 27 Ch. Div. 478. 
 (i) Boldw V. JVilUams, 1904, 1 Ch. 52. 
 (/c) Sander v. Heathfield, h. R. 19 Eq. 21. 
 (0 Ridley v. Ridl^, 1904, 2 Ch. 774. 
 
ADMINISTRATION OF ASSETS. 223 
 
 of any one on his behalf) ; but property is deemed to have 
 come to his hands if it is money owing by himself to the 
 estate (m), — or, semble, if it was his duty to have retained 
 the amount thereof (as a debt owing to the estate) out of 
 the share of the estate coming to any debtor-legatee («), — 
 Scil., because he is liable for what (but for his own wilful 
 default) he might have received (o) . It is by no means 
 easy, however, to prove "wilful default" against an exe- 
 cutor (p), — that bein^ something more than a mere breach 
 of trust (q) ; and in order to charge him with wilful de- 
 fault, the pleadings must contain an allegation of the 
 wilful default (specifying one instance thereof at the 
 least), — And then, if the allegation has not been disjjroved 
 at the hearing, but merely the ordinary administration 
 judgment taken, that judgment may afterwards be added 
 to, — Scil., whenever the wilful default is made to 
 appear (r) . 
 
 Where the residuary personal estate is bequeathed to Acoountatility 
 
 , 1 , J • j7 j7 ■ jj • - of executors 
 
 several legatees, conUngenUy on their attaining respec- after dis- 
 tively their affes of twenty-one years, — It frequently tributionof 
 happens, that the executors pay some of the legatees their 
 shares of the residue (Scil., upon their respectively attain- 
 ing their ages of twenty-one years), and retain in their 
 hands the remaining shares of the residue (Scil., until 
 the other legatees successively attain their ages of twenty- 
 one years): and if (after such partial distribution of the 
 residue) the unpaid residuary legatees (or some of them) 
 institute proceedings against the executors, for the ad- 
 ministration of the estate, — The rule is, that the costs of 
 the action must, in general, be borne by the shares coming 
 to the plaintiffs, and by those shares exclusively; but if it 
 appears, that the executors have made the distribution 
 upon an erroneous principle, — so that their accounts are 
 erroneous, — then the costs of the action will not be thrown 
 
 («i) Ingle V. Richards, 28 Beav. 366. 
 («) Taylor Y. Wade, 1894, 1 Ch. 671. 
 (o) Job V. Job, 6 Ch. Div. 562. 
 [p) Cooke V. Stevens, 1898, 1 Ch. 162. 
 (q) In re Wrightson, 1908, 1 Ch. 789. 
 (/) Smith V. Armitage, 24 Ch. Div. 727. 
 
224 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 exclusively upon the shares coming to the plaintiffs, but 
 will be declared to be payable out of the entire residuary 
 estate, — So as to make the executors personally liable for 
 the proportion of such costs which would have been paid 
 out of the shares that have been distributed, if such -ihares 
 had not been distributed (s), — but the paid residuary 
 legatees are not called upon (in such a case) to refund 
 anything. Also, generally, where one of several resi- 
 duary legatees (or next of kin) has received his share of 
 the estate in full, and there is subsequently a diminution 
 of the estate remaining undistributed, — whether the 
 diminution arises from some devastavit (t), or from any 
 fortuitous event (m), — the unpaid residuary legatees can- 
 not call on the paid residuary legatee to refund; and an 
 appropriation is (for this purpose) on the same footing 
 as an actual payment (x) . 
 
 What time 
 bars the right 
 to adminis- 
 tration. 
 
 Actions for the administration of the estates of deceased 
 persons can- only be instituted by persons whose claims to 
 recover are not barred by any statute of limitations, — 
 Therefore, in the case of a creditor by simple contract, 
 only within six years from the time that his debt was 
 demandable (y) ; and in the case of a judgment creditor, — 
 whether the judgment is a charge on the lands or not, 
 only within twelve years (2) ; and in the case of legatees, 
 only within twelve years after a " present right to receive " 
 theii' legacies (a) {i.e., to bring an action at law for 
 them (6)) has accrued, — and there are the like limits in 
 the case of an intestate's estate (c). 'The liability of the 
 estate may, however, be kept alive, — Scil., by a part pay- 
 ment or written acknowledgment on the part of the exe- 
 cutors; and (as regards the personal estate (d), — although 
 
 (s) Frere v. Winslow, 45 Ch. DiT. 249. 
 
 {t) I'eterson v. Peterson, L. R. 3 Eq. 111. 
 
 (w) Fenwick v. Clarke, 4 De G. F. & J. 240. 
 
 {x) DoicseltM. Culver, 1892, 1 Ch. 210. 
 
 (j/) Barnes v. Glenioii, 1899, 1 Q. B. 885. 
 
 (z) Jciy V. Johnstone, 1893, 1 Q. B. 189. 
 
 (a) Fianav. Moore, 1891, 3 Ch. 119. 
 
 («) McLauffhlin v. Feniij/, 1906, 1 Ch. 265. 
 
 (c) 23 & 24 Vict. c. 3H, s. 13 ; Sly v. £take, 29 Ch. D. 964. 
 
 {U) Dick V. Fraier, 18^7, 2 Ch. 181. 
 
ADMINISTRATION OF ASSETS. 225 
 
 not as regards also the real estate (e)), — by the written 
 acknowledgment of any one even of the executors. 
 
 An illegal trust, — although (where executed in part) Miscellaneous 
 it is not revocable (by the settlor, or by his legal personal ^dminitra- 
 representative), and remains good therefore as between tioaof. 
 the trustee and the cestui que trust (/), — will not be ad- 
 ministered by the Court {g) . And as regards a trade union, 
 — being one which is illegal by the common law, and 
 which is only made legal by the Trade Union Acts (h), — 
 the Court may not administer, — but may make a declara- 
 tion (i) . And as regards the estates of a convicted felon, — 
 Scil., his fee simple estates, and not also his estates tail (jfc), 
 — the administration of these is now committed to an 
 administrator appointed under the Act 33 & 34 Vict, 
 c. 23 (Z). And in respect of the estates of officers and 
 soldiers dying in actual service, special provisions have 
 now been made by the Regimental Debts Act, 1893 (to). 
 
 Where any property is settled subject to some mort- Property 
 gage thereon, the rule is, that the tenant for life must, tomort™'''''^— 
 out of the rents and profits or income, keep down the adjastmentof 
 interest on the mortgage (n) . And this rule extends to S^***^* f^*'^®" 
 include a legacy charged on the inheritance (o); and it and remain- 
 includes also a licence-compensation charge (p), an estate German, 
 duty charge (q), and a street-improvement charge (r), — 
 and, in fact, every paramount charge of a (more or less) 
 permanent nature (s) : Also, when two estates are included 
 in one devise, and the charge is on one only of the de- 
 
 {«) Astbury v. Astbury, 1898, 2 Ch. 111. 
 (/) Thomson t. Thomson, 7 Ves. 470. 
 (g) Barclay v. Fearson, 1893, 2 Ch. 154. 
 (h) Russell V. Amalgamated Carpenters, 1910, 1 K. B. 506. 
 (i) Cope T. Crossingham, 1908, 2 Ch. 624 ; 1909, 2 Ch. 148 ; Osborne's 
 case, 1911, 1 Ch. 540. 
 
 (*) Z« re Gaskelland Walters, 1906, 2 Ch. 1. 
 (?) Carr v. Anderson, 1903, 2 Ch. 279. 
 (m) 5>i & 57 Viet. c. 5. 
 
 {«) Bute [Marquess) v. Ryder, 27 Ch. D. 196. 
 (o) Makings T. Makings, 1 De G. F. & J. 355. 
 \p) Smith V. Dodsworth, 1906, 1 Ch. 799. 
 {}) Wyn'ery. Orhbar, 1908, 1 Ch. 136. 
 (V) Scrivener V. Aldridge, 1907, 1 Ch. 67. 
 <«) Monywood Y. Honywood, 1902, 1 Ch. 317. 
 
 S. Q 
 
226 ' THE ORIGIN ALLT EXCLUSIVE JURISDICTION. 
 
 vised estates, and the rents and profits of that estate are 
 insufficient to pay the interest on the charge, the rents 
 and profits of the other estate must (ordinarily) come in 
 aid of the charged estate {t). And if the mortgage in- 
 cumbrance or charge is an annuity (terminable with the 
 life of the annuitant), it must be valued or capitalised, 
 —So that if the tenant for life pays the whole annuity 
 (yearly as it accrues due), he will be entitled (as against 
 the remainderman) to a charge on the settled property 
 for the amount and amounts so paid (m) ; and conversely, 
 the remainderman, where he is saddled with any arrears 
 of the life-tenant (x) : But, nota bene, in all these cases, 
 the . annuity is a debt of the testator or settlor himself, 
 — and (as such) is payable out of his estate before the 
 beneficiaries acquire any title at all. Of course, the 
 tenant for life (entitled to such a charge) will not be 
 entitled (during his own life) to any interest on the 
 charge (y) ; nor ;to realise the charge by foreclosure of 
 the estate, — but only to realise it by the sale of some 
 part of the estate (z) : Also, nota bene, there are many 
 other cases in which the like equitable adjustments will 
 be made, — and the principle of the thing has (in some 
 instances) been recognised and adopted by the Legis- 
 lature even (a) . 
 
 — ^ . . z z- r ' 
 
 (t) Frewen v. Law Life Assurance Society, 1895, 2 Ch. 511. 
 (m) Tnwnson v. Sarrisow, 43 Oh. D. 55. 
 (x) Roe V. Fog son, 2 Mad^. 457. 
 («/) Sowe V. Eingscote, 1903, 2 Ch. 69. 
 (s) Barlie v. Williamson, 25 Beav. 622. 
 
 \n) Eowe V. Gough, 1909, A. C. 64 (Irish Laud) ; and 8 Edw. VIT.- 
 c. 28, ss.'15, 16 {English Land). 
 
227 
 
 CHAPTER XV. 
 
 MARSHALLING ASSETS. 
 
 The order in which the divers assets of the deceased are The general 
 stated, in the preceding chapter, to be applicable for the principle of 
 payment of the debts, regulates the administration of 
 such assets only as between or among the testator's own 
 representatives devisees and legatees, — and does not affect 
 the rights ,of the creditors themselves, who may resort 
 (indiscriminately) to all or any of the funds to which 
 their claims extend. And it might have happened, there- 
 fore (in .times preceding the 3 & 4 Will. IV. c. 104), 
 that a creditor having a right to proceed against two or 
 more funds, proceeded against the fund which was the 
 only resource of some other creditor, — and equity would, 
 in that case, have held, that the creditor who had the 
 two funds, should not (by resorting to the fund which 
 was the only resource of the other creditor) disappoint 
 that other : And accordingly, the Court permitted the 
 creditor who had but the one fund, to stand (to the extent 
 of Ms fund) in the place of the other creditor against 
 the other fund, — the object of the Court being, to see 
 that all the creditors were satisfied, so far as (by any 
 arrangement consistent with the nature of the several 
 claims) the assets permitted (a), — And this was called the 
 " marshalling of assets." 
 
 I. Marshalling as between Creditors. — Simple contract (i) Marshall- 
 creditors had no claim originally against the real assets, — "^^^ tetweeu 
 unless where these assets were charged with (or were de- 
 vised upon trust for) the payment of the debts; and in 
 the absence, therefore, of such a charge or devise, specialty 
 creditors might have resorted to the personal estate, in 
 priority to, — and to the real assets in exclusion of, — 
 
 (a) AUrieh v. Cooper, 8 Ves. 382. 
 
 q2 
 
^28 
 
 THE ORIGINALLY EXCLUSIVE JUKISDICTION. 
 
 simple contract creditors: Therefore, equity compelled 
 the specialty creditors to resort in the first place to the 
 real assets — so as to leave the personalty for the simple 
 contract creditors; and if the specialty creditors had ex- 
 hausted the personal assets, the simple contract creditors 
 were put in their place, against the real assets, as far 
 as the specialty creditors had exhausted the personal 
 assets (b). Also, if the vendor of an estate (the contract 
 for which had not been completed by the purchasing 
 testator in his lifetime) was afterwards paid his pur- 
 ohase-money out of the personal assets of the testator, 
 the simple contract creditors were put in the vendor's 
 place to the extent of that vendor's lien on the estate sold 
 and as against the devisee of that estate (c) . 
 
 Marshalling of la. Marshalling as between secured creditors. — The 
 prinSpleTof"- doctrine of marshalling as between creditors was enforced 
 only as between the creditors of the same debtor, — some- 
 times called the "common debtor" (d); and in the 
 " marshalling of securities," the Court required, that the 
 one creditor should have had two charges, and the other 
 creditor but one charge on the property: Arid accord- 
 ingly, in Webb v. Smith (e), where the defendant (an 
 auctioneer) had a lien ,on the sale-proceeds of a brewery, 
 in respect ,of a certain debt which was owing to him; and 
 he sold ioertain furniture, and paid over the ■^vhole sale- 
 proceeds thereof to the owner of the furniture, — leaving 
 his lien on the sale-proceeds of the brewery unreduced, 
 — Whereby the plaintiff, who had a charge on the brewery 
 subsequent to the defendant's lien thereon, lost the benefit 
 which would have accrued to him (the plaintiff) if the 
 defendant had applied the proceeds of sale of the furni- 
 ture towards the discharge of his (the defendant's) lien, 
 —The Court said, that the plaintiff had no right to blame 
 the defendant for that, — Scil., because the defendant 
 had only one lien (and not two liens) for bis debt. 
 
 abo, general 
 pules re- 
 garding. 
 
 And generally, as regards the marshalling of securities, 
 
 (i) Aldrieh v. Cooper, supra, 
 [c) Selhy v, &%, 4 Rnss. 336. 
 (rf) Ex'parte Kendall, 17 Ves. 520. 
 (e) 30 Ch. Div. 192. 
 
MARSHALLING ASSETS. ' 229 
 
 the rules were (and are) as stated by Lord Hardwicke in 
 Lanoy v. Duke of Athole (/), as follows, that is to say: — 
 Firstly, if a person having two real estates mortgages 
 both estates to A., and afterwards one only of the estates 
 to B., — The Court, — whether B. had notice of A.'s mort- 
 gage or not, — directs A. (but always without prejudice 
 to A.) to realise his debt out of that estate which is not 
 in mortgage to B., — So as to leave the one estate which 
 is in mortgage to B. to satisfy B., so far as it goes; 
 But, Secondly, the marshalling of securities as between 
 
 A. and B., is not enforceable by B. to the prejudice of C. 
 (a third person (g>)). 
 
 All which rules are applicable also as against a surety, 
 to whom (on payment of the debt) A. may have assigned 
 his security (h) . Moreover, the Court will apply these 
 rules of marshalling securities, in favour also of the- 
 divers volunteers, who (whether as devisees or other- 
 wise) claim title through or under the mortgagor: 
 That is to say, — Where an estate A. is primarily 
 liable for part of a mortgage debt; and that estate and 
 also another estate B. (whether of the same testator (i) 
 or of the same intestate (k)) are pro rata liable for the 
 remaining part of the mortgage debt,-^If one of the estates 
 is sold, and the net sale-proceeds are applied in discharging- 
 the entire mortgage debt, — In such a case, the Court inter- 
 poses, and (as between the respective beneficiaries who, 
 before the sale, were entitled to the A. estate and to the 
 
 B. estate respectively) arranges the matter equitably, by 
 a rateable apportionment of that part of the mortgage 
 debt which was charged on both the estates: And seeing 
 that A. must exclusively bear the whole of that part of 
 the mortgage debt for which A. was primarily liable, — - 
 Therefore, in the apportionment as between A. and B.,. 
 the value of A. (in this competition with B.) will, semble, 
 be taken after deducting the part of the mortgage debt, 
 which is to be borne exclusively by A. 
 
 (/) 2 Atk. 446. 
 
 Iff) Flint V. Howard, 1893, 2 Ch. 54. 
 
 (A) South V. Bhxam, 2 Hem. & Mill. 457. 
 
 (j) Be Rochefort t. Bawes, L. R. 12 Eq. .540. 
 
 {k) Lipscomb y. Lipscomb, L. R. 7 Eq. 501. 
 
230 
 
 THE ORIGINALLY EXCLUSIVE JUKISDICTION. 
 
 sales entitled 
 «mder the' 
 will, — the 
 general 
 principle of, 
 
 (2) Marshall- 11. Marshalling as between Beneficiaries. — In this 
 SI beneflci-™ g^oup of cases, ijt IS Usually by reason of the disturbing 
 action of the creditors of the deceased, that the question 
 of marshalling arises,^ — although occasionally it may arise 
 from other causes: And, firstly, where it arises from the 
 disturbing action of the creditors, the general principle 
 of marshalling, as between the beneficiaries, may be arrived 
 at in this way, viz., — 'Taking the various properties speci- 
 fied on p. 212, supra, in the order of their respective lia- 
 bilities to the payment of debts as stated on that page, 
 and substituting in the same order the various persons to 
 whom these various properties would go if there were no 
 debts to pay, — and to whom they do in fact go, so far as 
 they are not exhausted by the payment of the debts, — 
 We obtain the following list of the persons entitled to par- 
 ticipate in the property of the deceased, that is to say, — 
 
 (!) The next of kin or residuary legatees; 
 
 (2) The devisees upon trust; 
 
 (3) The heir-at-law; 
 
 (4) The charged devisees (specific and residuary); 
 
 (5) The pecuniary legatees; 
 
 (6) The devisees (specific and residuary) and the 
 specific legatees; 
 
 (7) The voluntary appointees by deed or will; and 
 
 (8) The widow. 
 
 Now from that list of beneficiaries, the general rule of 
 •marshalling is derived in this way, namely, — If any bene- 
 ficiary in the list is disappointed of his benefit under the 
 will through the creditor (in effect) seizing upon the fund 
 intended for such disappointed person, then such person 
 may recoup or compensate himself for that disappointment 
 (to the extent thereof), by going against the fund or funds 
 intended for (and in that way similarly disappointing in 
 .his turn) any one or more of the beneficiaries prior to him- 
 self in the list; and such secondly disappointed person or 
 persons may (in his or their turn) do the like against 
 those prior to him or them, — So that, eventually, the next 
 of kin or (as the case may be) the residuary legatees' have 
 to bear the disappointment without any means of redress, 
 — they having, in fact, no title to anything, save what 
 
MARSHALLING ASSETS. 331 
 
 j'emains after a due administration of the estate (I) : But 
 nobody may go against any one who is posterior to him- 
 self on the list; and persons who occupy the same rank 
 in the list contribute pro rata, as between or amongst 
 themselves . 
 
 And, -Firstly, as regards the widow's paraphernalia, — The general 
 Although that (with the exception of necessary wearing aOTili^tion"of. 
 apparel) is liable for her deceased husband's debts, still widow'spara- 
 the widow will be preferred (in respect thereof) to a general pterna^pre- 
 legatee, — and will be entitled therefore to marshal assets, general legacy, 
 in all cases in which a general legatee would be entitled to 
 do so (m) ; and (on principle) a widow, as to her parapher- 
 nalia, is entitled to precedence also over specific legatees 
 and devisees {n), — and, in fact, to rank next after 
 creditors (o). 
 
 And again, if an heir-at-law has paid any debts which Eight of heir 
 ought to have been paid, first, out of the general personal lands, 
 estate; and, secondly, out of lands subject to a trust or 
 power for their payment, — He may have the assets mar- 
 shalled in his favour, as against those two funds, — but 
 not, of course, to the prejudice of pecuniary legatees; and 
 still less to the disappointment of specific legatees (^j) . 
 So also, a devisee of lands charged with the payment of Devisee of 
 debts, — paying any debts whilst any of the previously wShdebtef^ 
 liable property remains unexhausted, — may have the assets 
 marshalled in his favour, and to stand in the place of the 
 creditors, — ^so far as regards, first, the general personal 
 estate; second, land subject to a trust or power for raising 
 the debts; and third, lands descending to the heir {q},— 
 and a residuary devisee stands for this purpose in the same Position of a 
 position as a specific devisee {r) . . ^ev^e^'' 
 
 Pecuniary legatees, if the personal estate out of which Against whom 
 
 TlftftllTlTa.TV 
 
 they are to be paid has been exhausted by the creditors, legatees may 
 
 marshal. 
 
 (l) Baines v. GhadwieJc, 1903, 1 Ch. 250, on p. 2S8. 
 (m) Tipping v. Tipping, 1 P. W. 730. 
 (n) ProbertY. Clifford, Amb. 6. 
 
 (o) See and consider Masson v. Be Fries, 1909, 2 K. B. 831. 
 (p) Hanbn v. Roberts, Amb. 128. 
 (q) Harmood v. Oglander, 8 Ves. 106. 
 
 (»•) Bensman v. Fryer, L. E. 3 Ch. App. 420 ; Farquharson v. Flayer,- 
 3 Ch. Div. 109. 
 
232 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Specific 
 legatees ajid 
 devisees, — 
 contribute 
 rateably 
 
 are entitled to be paid out of lands which descend to the 
 heir (s), and out of lands devised subject to the debts {t), 
 ^-but not, of course, out of lands comprised in a residuary 
 devise (m), or specific devise (x). And as regards specific 
 legatees and devisees (including residuary devisees), these, 
 if called on to pay any debts of their testator, ipay have 
 the whole of' his other property (real and personal) mar- 
 shalled in their favour, — so as to throw the debts (as far 
 as possible) on the other assets which are antecedently 
 liable (y) ; and a specific devisee (including a residuary 
 devisee) and a specific legatee contribute pro rata, to 
 satisfy the debts of the testator which the property ante- 
 cedently liable has failed to satisfy (z) . 
 
 If specific de- 
 risee or legatee 
 take subject to 
 a burden, he 
 cannot compel 
 the others of 
 the same class 
 to contribute. 
 
 If, however, the subject of any specific devise (includ- 
 ing a residuary devise) or specific bequest is liable to any 
 particular burden of its own, the devisee or legatee must 
 alone bear it: And, in the case of a specific legacy, the 
 title of the legatee thereto (once the executor has assented 
 to the bequest) commences as from the date of the testator's 
 death, — and the legatee bears as from that date, and in 
 exoneration of the residuary personal estate, the outlay 
 incident to the legacy for (say) upkeep (a) : Also, in the 
 case of a specific (or residuary) devise of land bought by 
 the testator but not paid for, the devisee cannot call on 
 the other devisees (or on the specific legatees) to pay a 
 proportion of the unpaid purchase-money (6) ; and 
 where a specific (or residuary) devise is charged with a 
 particular legacy or portion, and it is necessary to resort 
 to the land comprised in the devise for the payment of 
 the debts, the devisee is liable, in total exoneration of the 
 legatee or portionist. 
 
 (*) Sproule V. Frior, 8 Sim. 189. 
 (*) Sickard v. Barrett, 3 K. & J. 289. 
 (m) Lancejield v. Igguldm, L. K. 10 Ch. App. 136. 
 \(c) Knight \. Enight, 1896, 1 Ch. 499; Sniithv. Smit, 
 365. 
 
 (y) Broadwoodv. Lyons, 1911, 1 Ch. 277. 
 
 (2) Tomis V. Each, 2 Coll. 490. 
 
 (a) In re Pearce, 1909, W. N. 94. 
 
 (J) Emuss V. Smith, 2 De G. & Sm. 722. 
 
 1899, 1 Ch. 
 
MARSHALLING ASSETS. 
 
 233 
 
 Secondly, where the marshalling arises otherwise than Marshalling 
 from the disturbing action of the creditors, — as, e.g., between lega- 
 where some of the legacies are charged on the real estate, certain lega- 
 and the others not, — The marshalling as between the oiesare 
 legatees arises simply from the presumption, that the real estate and 
 testator wishes, that all the legacies shall (if possible) be ti»e others are 
 paid: And in order to understand this, it must be borne "° ^"^ ^^^^ 
 in mind, that {even to the present day) legacies are not 
 payable out of real estate directly, — unless the testator 
 has charged his real estate with their payment, — there 
 never having been any statute which does for legacies 
 what the statute 3 & 4 Will. IV. c. 104, has done for 
 simple contract debts. Therefore, if a testator leaves 
 certain legacies payable only out of his personal estate, 
 and certain others which (in aid of his personal estate) 
 he charges on his real estate, — equity will (in case the per- 
 sonal estate is insufficient to pay all the legacies) marshal 
 the legacies, — So as to throw those charged on the real 
 estate entirely on that estate, in order to leave more of the 
 personal estate for the other legacies (c) . 
 
 It is important therefore to inquire, what amounts to Legacies, 
 a charge of legacies on the real estate: And, Firstly, the to b" charged 
 intention to create such a charge is not readily pre- on real estate, 
 sumed {d) : But, Secondly, the charge may be either 
 express or implied, — ^and an implied charge arises, if 
 (after the gift of the legacies) the testator gives {e.g.) 
 "all the residue of his real and personal estate" to 
 specified persons, — or where the will directs, that any 
 legacies which fail shall fall into the "residue" (e); and 
 the word "residue " need not be used, if there are other 
 words to the like effect (/) . But, nota bene, under such 
 a g^ft of residue, the real and personal estates comprised 
 therein are not liable, as a mixed fund (proportionately 
 and rateably), to the payment of the legacies, — the per- 
 sonal estate still • being, in general, under the primary, 
 liability, and the real estate being only liable for the 
 deficiency (if any) of the personal estate (gf). And 
 
 (c) Bonner v. Sonner, 13 Ves. 379. 
 
 (d) Hassel v. Hassel, 2 Dick. 527. 
 
 (e) Bray v. Stevens, 12 Ch. Div. 162. 
 
 (/) Bawden v. Cresswell, 1894, 1 Ch. 693. 
 
 iff) Greville V. Browne, 7 H. L. Ca. 689; Soierts v. Molerts, 1902, 2 
 Ch. 834. 
 
234 
 
 THE ORIGINALLY .EXCLUSIVE JURISDICTION. 
 
 Where a further nota bene, that where the charge of a legacy 
 
 cm reai^eSIte*^ ^V^^ '■'©S'l estate fails to affoct it (in consequence of an 
 fails, it will event happening subsequently to the death of the 
 asif it were^*^ testator),— as the death of the legatee before the time of 
 not so charged, payment, — The Court will not treat the legacy as not so 
 ^°T fa-^^ charged, in order merely to make the legacy transmis- 
 
 missihle. sible (h) . 
 
 Assets would never be marshalled in favour of 
 charities, — Scil., because of the Mortmain ActJ as ex- 
 plained on pp. 76, 77, supra, — excepting in the excep- 
 tional cases in these same pages referred to. 
 
 (A) Frowse v. Abingdon., 1 Atk. 482. 
 
23.5 
 
 definition of. 
 
 CHAPTER XVI. 
 
 MORTGAGES. 
 
 In the case of land, a legal mortgage may be defined as a Legal mort- 
 debt secured on the land, the legal ownership of the land E(^tMe ° 
 becoming vested in the creditor, and the equitable owner- mortgage,- 
 ship of the land remaining vested in the debtor; and an 
 equitable mortgage may be defined as a debt secured 
 upon an equitable estate or interest in the land, or secured 
 by an equitable charge only on the land, — or by some 
 other assurance whereby the legal estate does not pass, — 
 or secured by a deposit simply of the title-deeds (or other 
 the documents of title) relating to the land. 
 
 There may, of course, also be mortgages of personal What pro- 
 estate; and, in fact, all kinds of property are, as a rule, mortgageable- 
 mortgageable, — hereditaments, whether corporeal or in- 
 corporeal; and personal estates, whether in possession or 
 in action, — ^and whether the estate or interest in the pro- 
 .perty be the legal estate or the equitable estate, or be for 
 life or for the absolute interest, and whether it be a vested, 
 expectant, or contingent interest. But there are certain and what 
 kinds 01 property which, for special reasons, are not 
 mortgageable: For example, the profits of an ecclesi- 
 astical benefice are (by the 13 Eliz. c. 20) not capable 
 of being charged, — either directly (a), or indirectly (6); 
 and this prohibition extends to pew-rents (c), and to the 
 pensions of retired incumbents (d). 
 
 However, under the provisions of particular statutes, 
 ecclesiastical benefices may (to a limited extent) be 
 •charged, — Scil., for rebuilding and repairing the rectory- 
 
 («) M'Bean v. Deme, 30 Oh. Biv. 520. 
 
 (b) Hawkins v. Galhereole, 1 Jur. N. S. 481. 
 
 (c) In re Zeveson, 8 Ch. Div. 96. 
 
 {d) Gathereole t. Smith, 17 Ch. D, 1 ; 34 & 35 Viot. u. 44. 
 
 are not ? 
 
236 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Mortga^fes by 
 compames, — 
 of their 
 properties. 
 
 house or vicarage (e) ; and loans made by the Governors 
 of Queen Anne's Bounty (on the security of the endow- 
 ments of the benefice) are valid, — 8cil., where made in 
 accordance with the relevant Acts (/) . The estates of a 
 charity also are, in general, not mortgageable, — save with 
 the previous consent of the Charity Commissioners {g), 
 —or (in the case of schools) of the Board of Education(^). 
 Also, the assignment of certain classes of property being 
 void on the ground of public policy, a mortgage of them 
 would be equally void {i), — although they may (subject 
 to leaving enough to satisfy the demands of public policy) 
 be got at under the Bankruptcy Act, 1883 (fc), — usually, 
 at least: And, of course, any property which is given 
 for an estate. or interest expressed to be defeasible on any 
 attempt to mortgage it, is not mortgageable; and the 
 separate property of a married woman, which she is 
 restrained from anticipating, is (of necessity) not mort- 
 gageable, — 8cil., unless the Court should (for the specific- 
 purpose of the mortgage) lift off the restraint, under s. 39 
 of the Conveyancing Act, 1881 {I). But, nota bene, re- 
 strained separate estate (m), or retired pay {n), once 
 actually paid or received, is mortgageable. 
 
 As regards public companies, — The properties of the 
 company may be mortgageable ; and yet, if the company 
 has no power to borrow. Or only a limited power to do so., 
 any mortgage, — or (as the case may be) any mortgage in 
 excess of the limited power, — would be void as being ultra 
 vires; and this rule is applicable, whether the company 
 is a public company properly so called (o), or is a com- 
 pany merely incorporated, — Sail., under the former Com- 
 panies Acts (p), or now under the Companies Consolida- 
 tion Act, 1908 (g). However, an ordinary trading com- 
 
 ic) 51 & 62 Vict. c. 20. 
 
 (/) Lidbetterw. Batch, 1907, 1 Ch. 404. 
 
 [g) Fell V. Official Trustee, 1898, 2 Ch. 44. 
 
 (h) Whittle's case, 1907, 2 Ch. 486. 
 
 (t) VE-ttrangev. V Estrange, 13 Beav. 281. 
 
 [k) In re Ward, 1897, 1 Q,'. B. 266. 
 
 (Vj Be Milner's Settlement, 1891, 3 Ch. D. 547. 
 
 {m) DreselY. Ellis, 1905, 1 K. B. 574. 
 
 (re) Jones S; Co. v. Coventry, 1909, 2 K. B. 1029. 
 
 (o) Wenlockv. River Dee Co., 10 App. Ca. 354. 
 
 \p) Ashbury Co. v. Biche, L. R. 7 H. L. 6.53. 
 
 {q) SEdw. Vir. 0.-69. 
 
MORTGAGES. 237 
 
 pany (r), — ^and even a public company (s), — may borrow 
 for any legitimate incidental purpose of the company, — 
 and may, therefore, give {e.g.) a new mortgage by way 
 of providing for a valid existing mortgage, where the 
 existing mortgage is being enforced adversely to the 
 interests of the company {t). But, nota bene, a limited 
 company (unless it was a railway company) could not 
 have borrowed on irredeemable debentures, — but may now 
 do so (m). 
 
 Where a company has the power to borrow, and mort- "^^%- 
 gages its " undertaking," the mortgage extends not to the moitgageof. 
 thing itself, but to the produce or profits thereof (includ- 
 ing the sale-prooeeds of its surplus lands, if any (a;)); 
 and such mortgages confer, pf course, priority over the 
 general creditors («/) . And as regards "calls," not only 
 calls already made (0), but also "future calls," — Scil., 
 up to the date of an order for the winding up of the com- 
 pany (a), but not after that date (fe) or after the 
 commencement of the winding up (c), — may be mort- 
 gaged; but calls "which can only be made in the event 
 of (and for the purposes of) the winding up, cannot be 
 mortgaged at all (d) . 
 
 By the old common law, a mortgage was an estate upon Mortgage at 
 condition, — the condition being that, on payment by the common law, , 
 mortgagor (at a time and place certain) it should be 
 lawful for him to re-enter; and immediately on the mort- 
 gage being made, the mortgagee became (subject to the 
 condition) the legal owner of the land with a right to 
 immediate possession (e) : And if the condition was (in 
 due course) performed, the mortgagor re-entered, — and 
 usually, obtained a re-conveyance; but if the condition 
 
 (r) General Auction Co. v. Smith, 1891, 3 Ch. 432. 
 
 (s) Stagg v. Meduay Navigalion, 1303, 1 Ch. 169. 
 
 {t) Bannatyne v. Melrer, 1906, 1 K. B. 103. 
 
 (m) 8 Edw. VII. c. 69, 8. 103. 
 
 (ic) Gardner v. L. C. D. Rail. Co., L. R. 2 Ch. App. 201. 
 
 («/) In re Zixkeard, cf-c. S. C, 1903, 2 Ch. 681. 
 
 (z) In re Sonkey Brook Co., L. E. 10 Eq. 381. 
 
 (a) In re Pyle Works, 44 Ch. Div. 534. 
 
 (J) In re Streatham Estates Co., 1897, 1 Ch. 15. 
 
 (cl Johnson V. Spraits Patent, 1898, 2 Ch. 149. 
 
 'd) Bartlett v. May/air Property Co., 1898, 2 Ch. 28. 
 
 '«) Doe d. Eoylance v. Lightfoot, 8 Mee, & "W. 633. 
 
238 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 was not performed, the mortgagee's estate became abso- 
 lute, the legal right of redemption being then lost for 
 
 ever. 
 
 Mortgagor's 
 equity to 
 redeem, not- 
 withstanding 
 forfeiture 
 at law. 
 
 Mortgages, 
 an exception 
 to tbe maxim, 
 
 mochis et eon- 
 ventio vineunt 
 legem. 
 
 "Once a 
 mortgage 
 
 mortgage." 
 
 The harshness of the ,old common law in this respect 
 was softened by Courts of Equity: Which Courts (leaving 
 the legal effect of the transaction unaltered) declared it to 
 be against conscience, that the mortgagee should retain as 
 owner what was intended as a mere security, — And 
 accordingly, these Courts adjudged, that the breach of 
 the condition should be relieved against, — so that the 
 mortgagor, although he had lost "his legal right to 
 redeem," should nevertheless have " an equity to redeem," 
 on payment (within a reasonable time) of the principal 
 interest and costs: In other words, when the legal right 
 to redeem was gone, there arose an equity to redeem (/) . 
 And equity adjudged, that the legal maxim, '^ modus et 
 conventio vineunt legem" was inapplicable to mortgages, 
 — That is to say, the debtor could not, — even by the most 
 solemn engagement^ entered into at the time of the loan, 
 although, by subsequent bargain, he' might {g), — preclude 
 himself from his equity to redeem; and it was established, 
 as a principle not to be dei^arted . f rom, that "once a 
 mortgage always a mortgage," — In other words, that an 
 estate could not at one time be a mortgage and at another 
 time cease to be so by one and the same deed: And 
 therefore, whatever clause or covenant there might be in 
 the conveyance, yet if the intention of the parties was; 
 that su6h conveyance should be a mortgage only, a Court 
 of Equity would so construe it (h). Also, a conveyance,, 
 although absolute in terms, if shotcn to have been in- 
 tended as a security only, would be redeemable as a 
 security (i), — So much so that a true beneficial purchase 
 by a, solicitor from his client (if it was too beneficial 
 for the purchaser) would be treated as a mortgage onh% 
 and redeemable accordingly (fe). 
 
 "Clog" on 
 redemption, - 
 
 Nor may the equity of redemption be "clogged" (i.e., 
 
 (/) Williams V. Mori/an, 1906, 1 Ch. 804. 
 
 {ff) Lisle V. Beeve, 1902, A. C. 4fil. 
 
 (A) Salt V. Northampton (Marquess), 1892, A. C. 1. 
 
 (i) Fureellx. Maciiamara, 14 Ves. 91. 
 
 (A) Fearem v. Sanson, 28 Beav. 598. 
 
MORTGAGES. 239 
 
 unduly fettered) by anj^ restrictive provisions (I) : But what is, and 
 the so-called " clog" is sometimes parcel of the obligation ■wtatisnot? 
 itself, — In which latter ease it is perfectly good (m), — 
 unless of an unconscionable character (n) . And, generally 
 agreements between a mortgagee and his mortgagor which 
 do not "clog" the equity of redemption are good, — For 
 example, a right of pre-emption given to the mortgagee, 
 in case the mortgagor should proceed to a sale of the 
 mortgaged property (o) ; or an agreement not to call in 
 the principal moneys (for a specified number of years'), so 
 long as the interest is punctually paid (p) ; or an agree- 
 ment (in the mortgage of a public-house) that the mort- 
 gagor shall take all the beer to be consumed in the house 
 from the mortgagee (q) . 
 
 Mortgages must be distinguished, of course, from abso- ConTeyanoe 
 lute bond fide sales, accompanied with a collateral agree- re-pm-chiSelu 
 rnent of re-purchase by the mortgagor within a stipulated mortgagor. 
 time; and the collateral agreement may be either intro- 
 duced into the agreement for sale at the time, or may be 
 made at a subsequent period . And whether any particular ciroumstances 
 transaction is a mortgage properly so called or is a sale distinguishing 
 with such right of. re-purchase, depends on the special frSaasafe 
 circumstances of each case, — ^parol evidence being admis- with right of 
 sible to show, that what (on the fade of the deed) is an 
 absolute conveyance, was intended to b© by way of 
 security only(r): And if {e.g.) the money paid would 
 be grossly inadequate as the price for the absolute pur- 
 chase of the estate, — or if the grantee was not let into 
 immediate possession of the estate, or accounted for the 
 rents to the grantor, and only retained an amount equi- 
 valent to his interest (s), — The conveyance would be 
 deemed to be by way of security only. And nota bene, 
 
 (l) Carritt v. Bradley, 1903, A. C. 253 ; JB. S. A. Co. v. Be Bems, 1910, 
 1 Ch. 354 ; 1910, 2 Ch. 602. 
 {m) Rice v. Noakes, 1902, A. C. 24. 
 («) Santley v. Wilde, 1899, 2 Ch. 474. 
 (o) Orhy y. Trigg, 9 Mod. 2. 
 (p) Eeine T. Biscoe. 8 Ch. Div. 201 . 
 \q) Biiiga v. Eoddinott, 1898, 2 Ch. 307. 
 (r) Ihvglasy. Cuhencell, Z Giff. 251. 
 (») Williams v. Ou-en, -6 My; & Cr. 303. 
 
240 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Effects of this 
 distinction : 
 
 the difference between a mortgage and a sale with right 
 of re-purchase is very important, ifith reference to the 
 consequences of each: — For (in the case of a mortgage) 
 the mortgagor, even after forfeiture at law, has his right 
 of redemption in equity, but (in the case of a sale with 
 right of re-purchase) the time limited for the exercise of 
 the right must be exactly observed (t), and equity may 
 not relieve (u) . 
 
 Other forms 
 of securities. 
 
 (1) Vwum 
 vadium, — 
 lender to pay 
 himself from 
 rents and 
 profits. 
 
 (2) Mortumn 
 
 creditor took 
 rents and 
 profits with- 
 out account. 
 
 (3) Welsh 
 mortgage, — 
 mortgagor 
 may redeem 
 at any time. 
 
 There were anciently these three other species of securi- 
 ties for money lent, namely: — 
 
 (1) The vivum vadium,-^in which the owner of lan 
 estate, in consideration of money lent, conveyed it to the 
 lender,- — with a condition that as soon as the lender 
 repaid himself out of the rents and profits, the debtor 
 might re-enter; and it was called a vivum vadium, be- 
 cause (as the security itself worked off the debt) it was 
 deemed to be in a manner living ; 
 
 (2) The mortuum vadium, — which was a feoffment to 
 the creditor, to be held until the debtor paid him a given 
 
 -until which time, the csreditor received the rents 
 
 sum,- 
 
 without account, and the security (not of itself working 
 off the debt) was in a manner dead; and 
 
 (3) The Welsh mxyrtgage, — in which (as in the mor- 
 tuum vadium) the rents and profits were received by the 
 mortgagee without account, and the principal therefore 
 remained undiminished. And, nota heme, in all these 
 three species of ancient mortgages, the mortgagee could 
 not either foreclose or sue for his money, and the mort- 
 gagor might have redeemed at any time {x), no Statute 
 of Limitations being applicable {y) . 
 
 The nature of An equity of redemption was originally regarded as 
 an equity of^ ^ mere right, but afterwards it was held to be an estate {z) : 
 it is an estate And that is now the accepted opinion; and the person 
 m the land. entitled to the equity (being' the real owner of the land) 
 
 {t) Barren v. Sahinc, 1 Ves. 268. 
 
 (m) Bibbim \. Bibbina, 1896, 2 Ch. 348. 
 
 \x) Howell V. Price, Preo. Ch. 423, 477. 
 
 (y) Femoiclc v. Seed, I Mar. 114. 
 
 (z) Casborne v. Scarf e, 1 Atk. 603. 
 
MORTGAGES . 241 
 
 may (subject only to the rights of the mortgagee) exer- 
 cise all acts of ownership' over the land, — and may settle 
 or devise, or even again mortgage, the land. And as 
 regards the desc3ent of the mortgaged estate, if the land 
 be of gavelkind tenure, the equity descends in gavelkind; 
 and if the land be borough-English, the youngest son in- 
 herits (a) ; and in the case of copyholds, the equity de- 
 scends according to the customary rules of descent; and 
 in the case of freeholds, the equity descends, of course, 
 according to the ordinary canons of descent, — modified 
 (as these latter have been modified) by statute. 
 
 Also, all persons entitled to any estate or interest in the who may 
 equity are entitled to come into a Court of Equity to redeem, 
 redeem the land, — That is to say, (1) The heir, or (in the 
 case of copyhold lands) the customary heir; (2) The de- 
 visee; (3) A tenant for life, a remainderman, a rever- 
 sioner, a dowress, a jointress, a tenant by the curtesy, or 
 other limited owner ; (4) A subsequent purchaser or 
 lessee (&); (5) a subsequent mortgagee (c) ; (6) A judg- 
 ment creditor even{d); (7) The crown on a forfeiture; 
 (8) The lord on an escheat; (9) A bankrupt (after an- 
 nulment of his bankruptcy (e)); and (10) A volunteer 
 even (/) . But as regards tenants for life, when they Mortgage,— 
 redeem a mortgage on the inheritance, they do so (in ^^'^ed'by 
 general) for their own benefit; and therefore the mortgage tenant for life, 
 is (in their case) kept alive, — equally as if it had been ^jj^® ^ 
 transferred (^f) . But remaindermen or reversioners can- 
 not redeem against the wishes of the "prior life 
 tenant" (h), — In other words, if the prior tenant for life 
 shall have redeemed, he is not liable thereafter to be re- 
 deemed by the remainderman or reversioner (^) . 
 
 The redeeming party must pay to the mortgagee the The price of 
 principal of the mortgage debt, — and, usually, according ^^ ^™^ '°"' 
 
 (a) Fawcett v. Lowiher, 2 Ves. Sr. 301. 
 (i) Tarn v. Turner, 39 Ch. Div. 4.56. 
 (c) Fell V. Brown, 2 Bro. C. C. 278. 
 \d) Bryant v. Bull, 10 Oh. Div. 153. 
 («) Jn 're Fearce, 1909, 2 Ch. 492. 
 (/) Band V. Cartwright, 1 Ch. Ca. 59, 
 (g) Burrell v. Fgremont, 7 Beav. 205. 
 (/i) JRavaldv. Russell, You. 9. 
 (i) miles V. Scriven, 1 J. & H, 215. 
 
242 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 to the statement of it in the mortgage deed (k), — together 
 with, of course, the interest thereon, and the mortgagee's 
 costs (l), — the aggregate amount to be so paid being 
 called "the price of redemption." And an auctioneer- 
 mortgagee may be entitled to add his commission to the 
 "price of redemption" — that not being (m) (at least in 
 the general case (n)) a secret profit. Also, the costs of an 
 abortive sale will, in general, be added to the " price of 
 redemption" (o), — but not the costs of the mortgage deed 
 itself (p). 
 
 Successive re- 
 demptions, — 
 order of, 
 and general 
 principle 
 regarding. 
 
 Where there are successive mortgages, any subsequent 
 mortgagee may redeem a prior mortgage, and every re- 
 deeming party is liable to be redeemed in his turn by 
 those below him, and these latter are all liable to be re- 
 deemed by the mortgagor (g) ; and in the case of such 
 successive mortgages, the rule or practice in an action of 
 foreclosure is, to make them all parties to the action, and 
 to offer to redeem all incumbrancers prior in date to the 
 plaintiff, and to claim to foreclose all incumbrancers pos- 
 terior in date to the plaintiff, — unless these latter, or some 
 or one of them, shall redeem the plaintiff (r) : Which rule 
 is expressed in the phrase, "Redeem up, foreclose doivn." 
 
 When the mortgagor is the redeeming party, his re- 
 demption of any prior mortgage will (in general) enure 
 to give, the next puisne mortgagee the priority of the 
 redeemed mortgagee (s), — and care must therefore be 
 taken to keep the prior mortgage alive, if that is the 
 intention {t), — the Court always finding such an inten- 
 tion, in favour of the redeeming party, where he would 
 be in any way prejudiced by the extinguishment of the 
 
 {k) Biekerton v. Walker, 31 Ch. D. 151. 
 
 (I) CoUerell v. Stratton, L. R. 8 Ch. App. 295. 
 
 \m) Glegg's case, 22 Ch. Div. 549. 
 
 (m) Field V. Hopkins, 44 Ch. D. 524. 
 
 (o) Sutton T. Eawlings, 3 Exoh. 407. 
 
 [p) Wales V. Oarr, 1902, 1 Ch. 860. 
 
 iq) Elton V. Curteis, 19 Ch. Div. 49. 
 
 ()■) Beemr v. Luck, L. R. 4 Eq. 537. 
 
 is) Toulmin v. Steere, 3 Mer. 210. 
 
 (() Tiiley T. Thomas, 2 T. & C. C. C. 399, «. 
 
MORTGAGES. 243 
 
 debt(w). But where the first mortgage debt is (and it 
 usually is) the personal debt of the mortgagor, and he 
 redeems it, the Court will assume (in such a case), that 
 the mortgagor _ intended the next mortgagee to benefit 
 by that redemption (v), — So that the first mortgage will 
 (in that case) be altogether gone, and the second mortgage 
 will become the first mortgage, — Soil., unless the redeem- 
 ing mortgagor shall have signified an express intention 
 to the contrary (x) . 
 
 The law, as stated in the last preceding paragraph, may 
 be also otherwise stated as follows, that is to say: — 
 Firstly, if a- first legal mortgagee buys the equity of 
 redemption, and knows at the date of completing his 
 purchase that there are subsequent mortgages on the 
 property, — then his own first mortgage will be thereby 
 discharged (Toulmin v. Steer e), — unless he takes steps to 
 keep it alive {Titley v. Thomas); but as the Court rather 
 presumes that he will keep it alive (Adams v. Angell), 
 therefore a very little will suffice in that case to keep 
 the mortgage alive {y) : And, Secondly, if the mortgagor 
 himself pays off the first mortgage (being his own per- 
 sonal debt), he cannot keep the first mortgage alive as 
 against the subsequent mortgagees (Otter v. Vaux); or, 
 if he can do so at all, it is only by the most express and 
 unambiguous declaration to that effect (Hoare v. Tasker), 
 — That is to say, by having the first mortgage debt and 
 the security therefor assigned to a trustee for himself, 
 with a declaration accompanying the assignment, to the 
 effect that the assignment is so made and taken to the 
 intent to keep the mortgage alive. 
 
 In quite pecent times, the practice (in a foreclosure Usually only 
 action) has been, to give only one time for redemption to °?« *™« "o'^ 
 all the puisne mortgagees (including the niortgagor (z)), demptio"^' 
 — and not ,(as formerly) successive times to each; and 
 if the defendants all make default to pleading to the 
 
 (u) Adams t. Angell, 5 Ch. D. 634. 
 (v) Otter T. Vaux, 2 K. & J. 657. 
 («) JEToare v. Tas/eei; 1905, 2 Ch. 687. 
 
 (y) Butler T. Sice, 1910, 2 Ch. 177 ; following Chetwyndy. Allen, 1899, 
 1 Ch. 353. 
 
 (z) Smithett t. Hesheth, 44 Ch. Div. 161. 
 
 r2 
 
244 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Btatement ,of claim, one time only shall be given for re- 
 demption (a), — Unless the .defendants (there being some 
 question between them inter se) appear on the motion 
 for judgment, ,and request successive periods for redemp- 
 tion, — In which latter case, the old rule of giving suc- 
 cessive periods for redemption will be observed (&). 
 
 Arrears of 
 interest re- 
 coverable. 
 
 Interest 
 ou costs. 
 
 Eight to 
 compel a 
 transfer, 
 instead of 
 being fore- 
 closed. 
 
 The arrears ,of interest recoverable in an action of fore- 
 closure are ^usually six years only, that action being 
 within ,the 3 & 4 Will. IV. c. 27, s. 42,— whereby the 
 arrears recoverable in an action against the mortgaged 
 land are limited to six years. But, in an action for re- 
 demption (o), — or upon an application by the mortgagor 
 (or by his legal personal representative) for payment out 
 of Court (d), — the entire arrears are recoverable, — As 
 they also are, when the mortgagee, having sold, holds 
 the sale-proceeds, and the mortgagor sues to recover the 
 surplus (e) : The judgment in a foreclosure action usually 
 directs, that the mortgagee shall add his costs of the 
 action to his security, and interest (at the rate of 4 per 
 cent, per annum) is computed as from the date of the 
 taxing-master's certificate (/) . 
 
 When a mortgagee threatens foreclosure, the mort- 
 gagor (if not then minded to redeem) may require the 
 mortgagee (not being or having been in possession (g)), 
 to transfer the debt and to convey the estate to any 
 nominee of the mortgagor, on receiving from such nominee 
 "the price of redemption" as above defined (^) . And 
 where (in such a case) there are successive mortgages, this 
 right to compel a transfer belongs to each puisne incum- 
 brancer as .well as to the mortgagor, — the incumbrancers 
 having precedence of the mortgagor, and the in- 
 cumbrancers having precedence according to their 
 priorities (i). But, nota bene, in every case, the transfer 
 
 (a) Flatt V. Mendel, Tt Oh. Div. 246. 
 
 (J) Bartlett v. Sees, L. E. 12 Eq. 395. 
 
 (c) Dingle \. Coppen, 1899, 1 Ch. 726. 
 
 \d) Lloyd V. Lloyd. 1903, 1 Ch. 383. 
 
 (e) Marshjield v. Ilutehings, 34 Ch. Div. 721. 
 
 (/) Sardley v. Knight, 41 Ch. Div. 537. 
 
 Ig) Hall V. Hewm-d, 32 Ch. Div. 430. 
 
 (A) Conveyancing Act, 1881, s. 15. 
 
 (i) Conveyancing Act, 1882, o. 12. 
 
MORTGAGES. ' 245 
 
 vf the debt and the conveyance of the estate are com- 
 pellable, only upon the tei'ms upon which a reconveyance 
 would be compellable (k), — That is, semble, without any 
 prejudice accruing thereby to the divers incumbrancers 
 inter se (l) : All which rules as to compelling a transfer 
 apply also to liens and other equitable charges (m) . 
 
 A person cannot, as of right, redeem before the time Time to 
 appointed in the 'mortgage deed, — So that if the loan is to six months' 
 continue for any specified number of years, it cannot be notice, or else 
 
 ■ 1 1 • • n 1 / \ J j-i SIX months 
 
 redeemed until the expiration oi those years [n), — and the interest, in 
 security must (in the meantime) be maintained, and the general, 
 interest paid. Also, as regards these mortgages for a fixed 
 term, — and mortgages repayable by fixed instalments, — 
 or where (in addition to the ordinary proviso for redemp- 
 tion) there is a specific proviso, to the effect that (upon any 
 specific default on the part of the mortgagor) the whole 
 principal then remaining unpaid shall immediately be- 
 come and be payable, — (1) The Statutes of Limitation, 
 begin to run (against the mortgagee) as from the date of 
 the default happening (o) ; b'ut (2) Where there is only the 
 ordinary default, the foreclosure judgment preserves the 
 provision as to the repayment of the debt by instal- 
 ments (p) . 
 
 If the mortgagee should (as a matter ,of indulgence) 
 consent to accept payment before the legal period of 
 redemption, he is entitled (in general) to the full amount 
 of his interest up to that' time (q); and if the mortgagor 
 (after the legal right of redemption is gone) should wish 
 to pay off the mortgage, he must give the mortgagee six 
 calendar months' previous notice in writing' of his inten- 
 tion to do so, — Which notice, once it is given, cannot be 
 withdrawn, save with the mortgagee's consent (r) : A' 
 mortgagor, who has given notice to pay ofi, must 
 
 (A-) Teevm t. SmitJi, 20 Ch. Div. 724. 
 
 (Z) Feai-ee v. Morris, L. R. 5 Ch. App. 22. 
 
 (m) Bradford Bank v. Briggs, 12 App. Ca. 29. 
 
 («) West Derby v. Metropolitan Life, 1897, A. C. 647. 
 
 (o) Reeves v. Butcher, 1891, 2 Q. B. 509. 
 
 \p) Greemugh v. Littler, 16 Ch. D. 93. 
 
 (}) Brotin T. Cole, 14 Sim. 427. 
 
 (r) Santley v. Wilde, 1899, 1 Ch. 747. 
 
246 TPIE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 punctually pay or tender the money at the expiration of 
 the notice (s), — and otherwise he lets himself in for six 
 months' further interest (i); But if the tender is in due 
 time and is an effective tender {u), but not otherwise (a;), 
 it will stop the further running of the interest, — and (if 
 the amount tendered is afterwards found sufficient) the 
 mortgagee pays, in general, all the subsequent costs 
 of the action {y). 
 
 If the mortgagee should himself commence an action 
 to recover the mortgage debt(^!), or should himself have 
 given the notice to buy off the mortgage debt (a), — or 
 should have entered into the possession (6) ; or if his mort- 
 gage should be merely an equitable mortgage by deposit 
 ■of the title-deeds (with or without an accompanying 
 memorandum (c)), — In any of these cases, the mortgagee 
 is not entitled to six months' notice, or to interest in lieu 
 thereof, — but only to interest up to (at the most) the date 
 of the actual payment of his principal debt (d) : But (in 
 a foreclosure action) where the usual certificate has been 
 made of the amount of interest which will have accrued 
 due on the day therein appointed for redemption, the full 
 interest up to the day so appointed must, of course, be 
 paid (e). 
 
 Statutes of As regards the Statutes of Limitations relative to mort- 
 
 avwh^^'^'th S^S^^' — Firstly, if the mortgagee has entered into posses- 
 imortgagee is sion, — The rule in equity always was, that after twenty 
 — ^aroTmort- J^ars' possession the mortgagee should not " be dis- 
 gagor. turbed," — Excepting that, where the mortgagor was pre- 
 
 vented from asserting his claim by reason of imprison- 
 ment, infancy, coverture, or other like legal disability, 
 
 (s) Leeds Theatre v. Broadtent, 1898, 1 Ch. 343. 
 \t) BartUtt V. Frmilclin, 36 L. J. Ch. 671. 
 (u) Greenwood V. Sideliffe, 1892, 1 Ch. 1. 
 (x) Kinnairdv. Trollope, 42 Ch. D. 610. 
 {y) Bourkev. Robinson, 19U, 1 Ch. 480. 
 («) PrescoU v. Phipps, 23 Ch. Diy. 372. 
 {a) Edmondson v. Copland, 1911, 2 Ch. 301. 
 {b) Bovill V. Endle, 1896, 1 Ch. 649. 
 
 (c) Fitzt/erald's Trustee v. Melkrsh, 1892, 1 Ch. 385. 
 
 (d) West V. Diprose, 1900, 1 Ch. 337. 
 («) mUv. Rowlands, 1897, 2 Ch. 361. 
 
MORTGAGES. 247 
 
 equity allowed ten years after the removal of the dis- 
 ability (/). Also, an acknowledgment given by the 
 mortgagee, before the equity of redemption was wholly 
 barred (g), — even after it appeared to be (but really was 
 not) wholly barred (h), — would have sufficed to save the 
 equity of redemption. And now, by the 3 & 4 Will. IV. 
 c. 27, s. 28, and the 37 & 38 Vict. c. 57, s. 7, whenever 
 a mortgagee obtains possession of the land comprised in 
 his mortgage, — or of any part of such land («), — the mort- 
 gagor may not bring a suit to redeem the mortgage, — 
 Scil., so far as regards the land (or part of the land) of 
 which the mortgagee is so in possession, — but within 
 twelve (formerly twenty) years next after the time when 
 the mortgagee obtained possession, — or next after any 
 ivritten acknowledgment of the title of the mortgagor 
 given to the mortgagor or his agent by the mortgagee (k) ; 
 and no further time is now allowed for any disability {I) . 
 
 And where the mortgage comprises, in addition to real 
 estate, a policy (e.g.) of life-assurance, — and the mort- 
 gagee has been in possession of the land for twelve years, 
 mid under such circumstances as to bar the mortgagor's 
 recovery of the land, — The mortgagor's right to recover 
 the policy (i.e., to redeem the policy) is also barred (m): 
 But, of course, a policy which is in mortgage, will not cease 
 to be redeemable, merely because the mortgagee has been 
 permitted for a long time to pay the policy-premiums (n), 
 • — Scil., unless other special circumstances combine with 
 that (o) . 
 
 And, Secondly, if the mortgagee has not entered into (2) Where 
 
 possession,-By the 3 & 4 Will. IV. c. 27, as explained by "o°s^S,- 
 
 the 7 Will . I V . & 1 Vict . c . 28 , and as amended by the 37 & bar of mort- 
 gagee. 
 
 (/) Beokford v. Wade, 17 Ves. 99. 
 [g) Marwick v. Hardingham, IS Ch. Div. 339. 
 (A) Stansfield v. Sobson, 3 De G. M. & G. 620. 
 (i) Kinsman v. House, 17 Ch. Div. lOi. 
 
 {k) mckman v. Upsall, 4 Ch. Div. 144; GatfieWs case, 1911, 1 Oh. 
 698. 
 
 {}) Forster v. Fatterson, 17 Ch. Div. 132. 
 \m) Charter v. Watson, 1899, 1 Ch. 175. 
 [n) Brysdale v. Piggott, 8 De G. M. & G. 546. 
 io) Foster v. Roberts, 29 Beav. 708. 
 
248 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 38 Vict. c. 57, the mortgagee may sue to recover the posses- 
 sion, at any time within twelve years next after the last 
 paj^ment of any part of the principal money or interest, 
 ^although more than twelve years may then have elapsed 
 since the mortgagee's right of entry accrued, — It being 
 always (in such a case) understood, that, at the date of the 
 execution of the mortgage, the mortgagor himself had not 
 been already dispossessed {p) . And, nota bene, where the 
 mortgage is (as it usually is) of an estate in possession, the 
 mortgagee's right of entry accrues on the execution of the 
 mortgage-deed (q) ; but where the mortgage is of a re- 
 mainder or reversion in land, the mortgagee's right of 
 entry accrues only as from the time that the remainder or 
 reversion falls into possession (r), — it being always re- 
 membered, that a fee simple estate, which is reversionary 
 on a mere term of years, is a fee simple estate in posses- 
 sion (s), — usually, at least. 
 
 Where and so long as the mortgagor and the mortgagee 
 are one and the same person (which occasionally happens), 
 the time does not begin to run at all (t) ; and a husband 
 (mortgagee) and his wife (mortgagor) may (for this pm-- 
 pose) be (in effect) one and the same person (u) . 
 
 So long as the mortgagee may sue to recover the posses- 
 sion, so long may he also sue for a foreclosure (x) ; and, on 
 obtaining his judgment for foreclosure, a new right of pos- 
 session arises in the mortgagee, and is available for a 
 further period of twelve years (ij). 
 
 Once the mortgagee lias actually entered into posses- 
 sion, his possession relates back to the date when he was 
 first legally entitled to the possession, — for the purpose 
 of (e.g.) suing in respect of any interim trespass (0). 
 
 {p) Thornton v. France, 1897, 2 Q. B. 143. 
 
 [q) Doe d. Eoylance v. Lightfoot, 8 Mee. & W. 553. 
 
 ()•) Sugillv. Wilkinson, 38 Oh. Div. 480. 
 
 (s) JSumbU Y. Mumble, 24 Beav. 535. 
 
 {t) Topham v. Booth, 35 Ch. Div. 607. 
 
 lu) Seynes v. Dixon, 1899, 2 Ch. 661. 
 
 \x) Harloele v. Ashierry, 19 Ch. D. 539. 
 
 (y) Pugh V. Seath, 7 App. Ca. 235. 
 
 (2) Baffety v. King, 1 Ke. 601. 
 
^ ' MORTGAGES. ' 249 
 
 As regards the mortgagee's remedy by action of debt, Remedy 
 — or of covenant on the covenant contained in his mort- on bond or 
 gage deed (a) (or on a bond collateral thereto (&)), — That time'fOT.'" 
 remedy is now barred {Soil., as against the mortgagor 
 himself and his legal personal representatives and 
 surety (c)) after twelve years, although the time for suing 
 on a covenant or bond remains (in the general case) 
 twenty years; and that is so, even where the mwtgage is 
 of a remainder not yet fallen into possession (d). But 
 the twelve years reckon, of course, only as from the time 
 when the right of action on the bond or covenant is com- 
 plete; and occasionally the right of action is not complete, 
 until after demand made for payment, — a demand being, 
 in general, necessary, in all cases (including the case of a 
 surety for the mortgagor (e)) where the liability to pay 
 is .collateral only (/); or until after the due performance 
 of iSome other condition of payability (g). But what is 
 above stated regarding the twelve years' limit of time for 
 suing, is intended only as regards mortgages of land, — 
 the 3 & 4 Will. IV. c. 27, s. 42, not being applicable to 
 mortgages of (e.g.) reversionary personal estate (fe). 
 
 The statutes of limitation, in relation to land, bar and Bar of time, 
 extinguish the title, and not merely the action or remedy ^ ^^ ° • 
 of the dispossessed person (i), — although in relation to 
 personal property, their effect is merely to bar the remedy 
 without extinguishing the right : Therefore, where there 
 was a second mortgagee, who never had possession, and he 
 suffered his right of foreclosure to be barred, his second 
 mortgage was held extinguished by the bar of time, — and 
 the third mortgagee (who had paid off the first mortgage) 
 was therefore not affected by the second mortgage at 
 all(S;). 
 
 The right of foreclosure in the mortgagee is not kept Wiatpay- 
 
 ° D D J. ments save 
 
 the statute, 
 
 and what not. 
 (a) Sutton V. iStittoii, 22 Ch. Div. 511. 
 (i) Feamside t. Flint, 22 Ch. Div. 579. 
 
 (c) LindsellY. FhilHps, 30 Ch. Div. 291. 
 
 (d) KirhUnd v. Peatfeld, 1903, 1 K. B. 756. 
 («) Allison V. Friiby, 43 Oh. Div. 106. 
 
 ( f) Brown v. Brown, 1893, 2 Ch. 300. 
 
 (g) Atkinson v. Bradford FqnitabU, 25 Q. B. D. 377. 
 (A) Stueley v. Kekewich, 1906, 1 Ch. 67. 
 
 (i) Johnson v. Mounsey, 11 Ch. Div. 284. 
 [k) Kibble v. Fairthorne, 1895, iCh. 219. 
 
250 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 alive by the payment to him of rent by the occupying 
 tenant without the knowledge and subsequent adoption 
 of the mortgagor (I), — nor by the payment to him of what 
 purports to be the accruing interest on the mortgage debt, 
 where such payment is made by any one other than the 
 mortgagor himself or a person acting with the mort- 
 gagor's authority in that behalf (m), — Which authority 
 may, however, be implied (n). But, of course, the pay- 
 ment of interest by the tenant for life keeps alive the 
 mortgage debt, as against the remainderman (o), — Scil., 
 where they both claim under a settlement of the mort- 
 gaged hereditaments created by the mortgagor (by deed 
 or by his will), — and, usually, as against the residuary 
 estate also of the mortgagor (the settlor) who covenanted 
 for its payment (p); and the payment of interest by a 
 receiver appointed by the mortgagee (and who is the 
 mortgagor's agent) will keep alive the mortgage debt(g). 
 
 Payment on 
 account, — 
 what is not ? 
 
 Where a life-policy is included in the security, and the 
 mortgagee receives the surrender value of the policy (r), 
 that receipt is not, — usually, at least, — a part-payment 
 by the mortgagor, so as to keep alive (or to revive) the 
 residue of the mortgage debt; and a compulsory part- 
 payment will not operate to keep alive the mortgage 
 debt(s), — still less to revive the mortgage debt; and the 
 receipt of the sale-proceeds arising from a part of the mort- 
 gaged property sold is not (for this purpose) a part-pay- 
 ment (t). 
 
 Principal, 
 "bar of, — when 
 and when not 
 a har also of 
 interest. 
 
 Where the covenant in the mortgage deed is (and it 
 usually is) (1) for the payment of the principal and 
 interest on a specified day ; and also (2) for the payment of 
 interest thereafter half-yearly, — If the remedy on the first 
 covenant is barred by time, it does not follow, that the 
 
 (?) SarlocJc v. Ashberry, 19 Ch. T>. 539. 
 
 ()«) Newbould v. Smith, 29 Ch. Div. 882. 
 
 {n) Bradshaw v. JTiddrwgton, 1902, 2 Ch. 430. 
 
 lo) Roddam v. Morley, 1 De G. & J. 1. 
 
 (p) Bmsett V. Allen, 1898, 2 Ch. 499. 
 
 (q) Lilhy v. Foad, 1899, 2 Ch. 107. 
 
 (r) Annaly v. Agar-Ellis, 1900, 1 Ch. 774. 
 
 (s) Morgan v. Rowlands, L. R. 7 Q. B. 493. 
 
 (t) In re McHenry, 1894, 3 Ch, 290. 
 
MORTGAGES. 251 
 
 remedy on the second covenant (i.e., on the independent 
 covenant for payment of the interest) is also barred; but 
 the contrary will, in general, be the case, — Soil., until 
 twelve years shall have elapsed since the remedy on the 
 latter covenant also was complete (ii) . And here, it is con- 
 venient to observe, that where there is no covenant at all, 
 to pay the interest after the day specified for the payment 
 of principal and interest, the interest which is recoverable 
 after that specified day is computed at the rate of (or at 
 a rate never exceeding) 5 per cent, (x), — and is recoverable 
 as damages only(?/); and further, that when judgment 
 has been obtained for payment of the mortgage debt, the 
 rate of interest (on the judgment) is thereafter 4 per cent, 
 only; but the old rate of interest (if higher than 4 per 
 cent.) will nevertheless (in such a case, and for all the pur- 
 poses of redemption) continue payable (z) . 
 
 A mortgagor entitled for the time being to the posses- Of ^^ estate 
 sion or receipt of the rents or profits of any land, "as to gagor. 
 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 mortgagee," may now sue 
 for such possession, or for the recovery of such rents 
 and profits, — or to prevent (or recover damages in respect 
 of) any trespass or other wrong relative thereto (a) : Also, 
 semble, he may even sue for breach by the lessee of his 
 covenant to repair (&). 
 
 And generally, where the mortgagor remains in posses- Mortgagor iu 
 sion, he is entitled to enjoy the mortgaged premises in the acooraiSe^°* 
 ordinary way; and he may {e.g.) cut and sever the crops, for rents and 
 or cut and sell the underwood (c), — and is not bound to ^'^° ' 
 account to the mortgagee for the rents and profits arising 
 or accruing during his possession, even although the 
 
 (m) Farr's Bank v. Yates, 1898, 2 Q. B. 460. 
 (x) Goodchap v. Roberts, 14 Ch. D. 49. 
 (y) Cook V. Fowler, L. R. 7 H. L. 27. 
 (z) Economic Life v. Osborne, 1902, A. C. 147. 
 (a) Judicature Act, 1873, s. 25, sub-s. 5. 
 
 (*) Conveyancing Act, 1881, s. 10 ; Turner v. Ifalsh, 1909, 2 K. B. 
 484. 
 
 (c) Trent v. Hunt, 9 Exoh. 14. 
 
252 
 
 .THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 security should afterwards prove insufficient; but where 
 the security is insufficient, a mortgagor in possession may 
 be enjoined against felling timber {d), or cutting and 
 removing the crops or the underwood (e). 
 
 Equity will not hinder the mortgagee from evicting the 
 mortgagor after default, but will consider the mortgagor 
 as being a mere tenant-at-will (/), — excepting that where 
 (as usually happens) the mortgage deed contains a re- 
 demise of the mortgaged premises (or contains an attorn- 
 ment clause {g)), the mortgagee must have regard to the 
 terms of that re-demise or of that attornment clause. And 
 here note, that (by means of such attornment clause) a 
 true and effective tenancy between the mortgagor and the 
 mortgagee is created {h) ; but that such tenancy is deter- 
 mined \)j a transfer of the mortgage {i), — Sell., because 
 the tenancy under the attornment clause is at will only (/c) . 
 
 Mortgagor 
 could not 
 make leases 
 binding on 
 mortgagee ; 
 seciiSj now. 
 
 The mortgagor could not formerly have made a lease 
 binding on the mortgagee (?); and, therefore, both the 
 mortgagor and the mortgagee used to concur in making 
 the lease, — wherever (as in the case of mines) expense 
 was to be incurred by the lessee. However, the mortgage© 
 might (in such a case) have become bound by 
 estoppel (to) ; and, now (under the Conveyancing Act, 
 1881, s. 18), as regards the hereditaments comprised in 
 the mortgage (and these only (re)), or any part of them, 
 the mortgagor (while in possession) may, and the mort- 
 gagee while in possession also may, make a valid lease 
 (other than and except a mining lease), — provided the 
 lease do not exceed twenty-one years for an agricultural 
 or occupation lease, or ninety-nine years for a building 
 (or repairing) lease, and provided the lease otherwise oom- 
 
 [0) 
 
 if) 
 (?) 
 (h) 
 
 (i) 
 (k) 
 
 {1} 
 (m) 
 
 W 
 
 Farrant v. Zovell, 3 Atk. 723. 
 Bagnall v. Villar, 12 Ch. D. 812. 
 
 GholmondeUy v. Clinton, 2 Mer. 359. 
 Ex parte Williams, 7 Ch. Div. 138. 
 Carpenter v. Collins, Telv. 73. 
 Brown v. Metropolitan Society, 1 EU. & Bl. 832. 
 Kemp V. Lester, 1896, 2 Q. B. 162. 
 Keech v. Hall, 1 Doug. 22. 
 
 Keith V. Gancia, 1904, 1 Ch. 774. 
 King v. Bird, 1909, 1 K. B. 837. 
 
MORTGAGES. ' 253 
 
 plies with the requisites of the Act (o) . And, of course, 
 a lease by the mortgagor, which is valid by force of the 
 provisions oi the Conveyancing Act, will continue valid 
 after any foreclosure by the mortgagee {p), — Wherefore, 
 also, any surrender of the lease must (in order to be valid) 
 be made to the mortgagee (g) . 
 
 Where the mortgagee (by virtue of his legal title as Moi-tgagee 
 
 o o ^ "' . 1-1117 • entering into 
 
 mortgagee ) enters mto possession, — which he does by gtv- possession,— 
 ing notice to the tenants to pay their rents (i.e., their effect of. 
 growing rents and also their rents in arrear (r)) to him, 
 and by taking into his own hands generally the manage- 
 ment of the estate (s), — That is an assertion of his para- 
 mount title as mortgagee; and the mortgagor's tenants, 
 although for terms of years (being terms Created subse- 
 quently to the mortgage and not under the provisions of 
 the Conveyancing Act above referred to) become there- 
 upon tenants from year to year only to the mortgage© (t) ; 
 and the lease itself being gone, the covenants contained' Tenant-right; 
 in it are also gone (u) : But the compensation (if any) ^q^* a°ee~ 
 to which the tenant would, in such a case, be entitled, now liable for. 
 as against his lessor, is now preserved to him as against the 
 mortgagee also when he so takes possession (x) . 
 
 Where there was the mortgage of a house; and subse- 
 quently the mortgagor (himself alone) made a lease .of 
 the house as a furnished house, — and then went bankrupt, 
 — and the mortgagee gave notice to the occupying tenant 
 to pay the rent to him, and the trustee in the bankruptcy 
 did the same, — The Court said (in effect), that the rent 
 must be apportioned (y) . 
 
 Where the tenant in occupation (being a tenant of the 
 mortgagor alone, and the lease not being good under the 
 
 (o) Wilson T. Qiiem's Club, 1891, 3 Ch. 522. 
 
 (p) Brown v. Peto, 1900, 1 Q. B. 346. 
 
 (}) Bobbins v. Whyte, 1906, 1 K. B. 125. 
 
 M In re Ind, Goope % Co., 1911, 2 Ch. 223. 
 
 (s) Noyes v. Pollock, 32 Ch. D. 33. 
 
 («) Corbett v. Plowden, 25 Ch. Div. 678. 
 
 (k) Towerson v. Jackson, 1891, 2 Q. B. 484. 
 
 (x) 53 & 54 Vict. 0. 57 ; 8 Edw. Vil. c. 28, s. 12. 
 
 (y) Salmon v. Matthnos, 8 Mee. & W. 827. 
 
254 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Mesne profits, 
 — title of 
 mortgagee to. 
 
 provisions of the Conveyancing Act, 1881) pays his rent 
 to the mortgagee, pursuant to the notice of the mortgagee 
 to do so, — That payment will, — usually {z), but not in- 
 variably (a), — create the relationship of tenant to the 
 mortgagee, and will be a good answer to any subsequent 
 demand of the mortgagor for the same rent(?)). Also, 
 generally, as between the mortgagor and the mortgagee, 
 there is no apportionment of the accruing rents (c), — ex- 
 cept (possibly) as regards rent paid as rent in advance {d). 
 And a mortgagee being entitled to treat all the subsequent 
 lessees lof the mortgagor as trespassers, — so as to eject 
 them without first giving them notice, — Sell., where the 
 leases are not good under the Conveyancing Act, 1881, — 
 he will (in case he so eject them) be entitled to the mesne 
 profits from the date of his taking the possession (e), — 
 such mesne profits being in lieu of the rent which he would 
 otherwise have been entitled to receive. 
 
 Entry into 
 possession,- 
 of part. 
 
 The mortgagee, it seems, may enter into possession of 
 part of the mortgaged propertj-, "without also entering 
 into possession of the rest of the property (/) ; but a mort- 
 gagee, when he has once taken possession, cannot at 
 pleasure -give up the possession again {g), — although he 
 will sometimes (by means of a receiver being ap- 
 pointed (Ji)) be let out of the possession: Also, note, that 
 a mortgagee ought not (without good reason) to dispossess 
 his mortgagor (i), — nor is it (in general) for his advan- 
 tage to do so (fc) . 
 
 Where a mortgagee has entered into possession, — and 
 dies in possession, and his executors and trustees continue 
 
 z) TInderhay v. Read, 20 Q. B. D. 209. 
 \a) Evans v. Elliot, 9 A. & E. 342. 
 
 b) Bogers \. Humphreys, 4 A. & E. 299. 
 
 c) Anderson v. Butler's Wharf, 48 L. J.-Ch. 824. 
 'd)'I)e Nicholls v. Saunders, L. R. ■'i C. P. 589. 
 
 e) Turners. Cameron Coal Co., 5 Exch. 932. 
 
 '/) Simmins v. Shirley, 6 Ch. Div. 173. 
 
 i^) Fryterch v. Williams, 42 Ch. Div. 590. 
 
 A) Gloucester Bank v. Eudry Co., 1895, 1 Ch. 629. 
 
 i) Moore V. Shelley, 8 App. Ca. 285. 
 
 k) In re Pope, 17 Q. B. D. 743, on p. 749. 
 
MORTGAGES . 255 
 
 his possession; and the mortgage debt is (by the will) 
 settled on A. for life, with remainder over, — The net 
 rents received by the executor-trustees are applicable as 
 income (and ate payable to A. as tenant for life), but to 
 the extent only of the interest on the mortgage debt, — the 
 surplus (if any) going to capital, — {Scil., for the benefit 
 of the remainder over {I)). 
 
 A mortgagee may bargain with the mortgagor for the Eeoewerof 
 appointment of a receiver, to be paid by the mortgagor; estates. 
 and such receiver is, — in general (m), but not invari- 
 ably (n), — the agent of the mortgagor; and under the 
 Conveyancing Act, 1881, ss. 19, 24, a power to appoint 
 a receiver has been made incident to every mortgage of 
 lands by deed, unless the deed expressly includes such 
 power (o). And it is to be remembered, that the receiver 
 so appointed receives all the rents in arrear and unpaid at 
 the date of his appointment, — and receives also, of course, 
 all the future-accruing rents (p); and if the mortgagor 
 is himself the occupying tenant, he pays to the receiver 
 an occupation rent (accruing from the date of the demand 
 therefor (g)). But the power of a receiver extends, of Eeceiverand 
 course, only to the property comprised in the security, — OT^recliver" 
 Consequently, in the case of a mortgage of lands on which only— when? 
 an hotel is built, the receiver is not (or not necessarily) of 
 the hotel business, but of the rents and profits only of 
 the mortgaged lands, — Wherefore a receiver will not, in 
 general, be appointed manager also of the hotel busi- 
 ness (r), — Secus, if the hotel (as such) is comprised in 
 the security (s), — or if the goodwill of the hotel business 
 is (under the word "property," or otherwise) comprised 
 in the security (^). Also, in the case of a mortgage of 
 coal mines, if the colliery business is comprised in the 
 
 (l) In re Coaks, Coaks v. Bayley, 1911, 1 Ch. 171. 
 (m) Law V. Glenn, L. R. 2 Cli. App. 6S4. 
 
 («) Robinson v. Chic, Ltd., 1905, 2 Ch. 123 ; Deyes v. Wood, 1911, 1 
 K. B. 806. 
 
 (o) Mason v. Westoby, 32 Cli. Div. 206. 
 
 \p) Freston \. Tuntridge Wells, 1903, 2 Ch. 323. 
 
 (}) Yorkshire Banking Co. v. Mullan, 35 Ch. Div. 125. 
 
 (r) Whifey v. Challis, 1892, 1 Ch. 64. 
 
 (s) Makins v. Percy Ibotson, 1891, 1 Ch. 133. 
 
 [t) Leas Botel case, 1902, 1 Ch. 332. 
 
266 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Receiver, — 
 necessity for, 
 and advan- 
 tage of. 
 
 Stipulation for 
 lower rate of 
 interest on 
 punctual 
 payment. 
 
 Fines in 
 Building 
 Society 
 mortgages. 
 
 security, a receiver and manager will be appointed {u), — 
 at the suit of the mortgagee («). 
 
 An equitable mortgagee could not, in general, have re- 
 covered the possession of the mortgaged premises by 
 ejectment ; and, therefore, it was a matter almost of 
 course, ior him to obtain the appointnjent of a receiver; 
 and a legal mortgagee prefers, in general, to have a re- 
 ceiver appointed, — thereby avoiding the inconvenience of 
 entering into possession (and becoming chargeable as a 
 mortgagee in possession (?/)). 
 
 A stipulation that the mortgagee shall receive interest 
 at £4 per cent, if regularly paid, but £5 per cent, if 
 default is made, is good if £5 per cent, be reserved by, 
 the deed; and in the case of interest being so reserved, 
 the higher and not the lower rate is taken upon redemp- 
 tion and foreclosure accounts (z), — and also where the 
 mortgagee is in possession (a). But, nota bene, if £4 per 
 cent, only is reserved, a stipulation that £5 per cent, shall 
 be paid if the interest be not regularly paid, is void as 
 a penalty (b). However, as regards the fines and so- 
 called penal payments contained in mortgages to Build- 
 ing Societies, all these (if they are reasonable, within the 
 Building Society Acts) are recoverable in full (c), — the 
 premiums charged for these loans being in the nature of 
 principal moneys advanced, and recoverable as such(<^). 
 And as regards all such mortgages, the rules for the time 
 being of the society, — being rules reasonably made (e), 
 ■ — regulate (as between the society and the mortgagor) 
 the provisions of the mortgage deed (/), — save upon a 
 dissolution of the society (g) . And a similar law is appli- 
 cable, semble, to mutual life-policy ■ societies (h) . 
 
 (u) Gloucester Bank v. Rudry Co., 1895, 1 Ch. 629. 
 [x) liowe V. Wood, IJ. & W. 315. 
 iy) In re Pope, 17 Q. B. D. 743. 
 (z) Union Bank of London v. Ingram, 16 Ch. Div. 53. 
 (a) Bright v. Campbell, 41 Ch. Div. 388. 
 
 (S) Tipton Green Colliery v. Tipton Moat Colliery, 7 Ch. Div. 192. 
 [c) Protector Endowment Co. v. Griee, 5 Q. B. D. 592. 
 \d) Ex parte Bath, In re Phillips, 27 Ch. Div. 509. 
 (e) Bill's case, 1899, 2 Ch. 60. 
 
 (/) Strohmenger v. Finsbury Building Society, 1897, 2 Ch. 469. 
 Iff) Kemp V. Wright, 1895, 1- Ch. 121 ; Building Societie.s Act, 1894 
 (57 & 58 Vict. 0. 47), SB. 1, 10 ; Shove's case, 1899, 2 Ch. 64, «. 
 (A) British Equitable v. Bdily, 1906, A. C. 35. 
 
MORTGAGES. 257 
 
 As regards compound interest on the mortgage debt, Compound 
 — If there be an accumulation clause in the mortgage interest, 
 deed, — which clause is not unusual in mortgages of re- 
 versions and remainders, — then the interest may be com- 
 pounded, by the addition thereof (yearly or half-yearly) 
 to the principal of the mortgage debt; and such an 
 accumulation clause is perfectly valid (*), — excepting, 
 possibly, in mortgages by a client to his solicitor (k) ; 
 and excepting, possibly, as against the subsequent incum- 
 brances (if any); and excepting where the mortgagee 
 (being in possession) has always in hand a surplus of rents 
 over interest (Z) . 
 
 A mortgagee in possession is under a duty to keep Mortgagee 
 the mortgaged premises in repair, — to the extent of the State in^ 
 surplus rents (to) ; and he will be liable for any deterio- necessary 
 ration of the mortgaged premises which may be attri- surpiusrents ; 
 butable to his neglect (n) . In case he expends (upon the 
 repair of the mortgaged premises) any moneys of his own 
 (i.e., moneys beyond the surplus rents), and that expendi- 
 ture has been judicious, and has also resulted in perma- 
 nent benefit to the mortgagor (i.e., to the mortgaged 
 premises), — but not otherwise (o), — he mctif be allowed 
 such excess of expenditure; and for that purpose, a special 
 inquiry will be directed. But a mortgages in possession but must not 
 must not (under the pretext of improving the mortgaged moT^agor ^ 
 premises) "improve the mortgagor out of his equity of altogether out. 
 redemption altogether," — Soil., by any huge increase in 
 the "price of redemption" (p). Also, a mortgagee who 
 (by means of a receiver and manager) has expended on 
 the mortgaged premises more than the surplus rents,' will 
 not, in the general case, be allowed the excess of his ex- 
 penditure, — 8cil., because he is not in possession, the 
 receiver's possession not being the mortgagee's posses- 
 sion {q) . But the moneys paid for the renewal of a lease, 
 
 (i) Clarkson v. Sendersm, 14 Ch. D. 348 ; Salt v. Northampton, 1892, 
 A. C. I. 
 
 {k) Myre v. Hughes, 2 Ch. D. 148. 
 
 (?) Wrigley v. GUI, 1905, 1 Ch. 241 ; 1906, 1 Ch. 165. 
 
 (m) Godfrey v. Watson, 3 Atk. 518. 
 
 («) Sandon v. Hooper, 6 Beav. 246. 
 
 (o) Bompas v. King, 33 Ch. D. 279. 
 
 \p) Shepherd v. Jones, 21 Ch. D. 469. 
 
 (}) White V. Metcalf, 1903, 2 Ch. 667. 
 
 -S. S 
 
^58 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Moi-tgagee 
 in possession 
 must account, 
 — even though 
 he has assigned 
 the mortgage, 
 — unless such 
 assignment 
 is either : 
 
 (a) With the 
 consent of the 
 mortgagor ; or 
 
 (b) By direc- 
 tion of the 
 Court. 
 
 where the mortgage is of a renewable lease, will always, 
 semile, be allowed. 
 
 A mortgagee in possession, who (without the assent of 
 the mortgagor) assigns over the mortgage to another, is 
 liable to account for the rents and profits received subse- 
 quently to the assignment, — on the principle that, having 
 turned the mortgagor out of possession, it is incumbent 
 on him, to take oare in whose hands he places the estate (r) . 
 But this rule of equity applies, only when the assignment 
 is the mortgagee's own voluntary act, — and is not appli- 
 cable, when the assignment is by direction of the Court 
 in a redemption suit. Also, every assignee of a mortgage 
 debt, who takes his assignment without the privity of 
 the mortgagor, takes subject to the state of the accounts 
 between the mortgagor and the original mortgagee as 
 existing at the date of the assignment (s), — and if the 
 mortgage is an equitable mortgage, he takes, in fact, 
 subject to all the equities (t) . 
 
 When there are successive mortgages, and the first 
 mortgagee is in possession, he is accountable to the second 
 mortgagee of whose mortgage he has had notice, — and will 
 not be allowed any sums (on account of rents received) 
 which after such notice he may have paid over to the mort- 
 gagor (m) : But until such notice is given, he is not account- 
 able to the second mortgagee for any surplus rents paid 
 over to the mortgagor (a;) . Also, if a receiver has been 
 appointed on behalf of the first mortgagee, the subsequent 
 incumbrancers may apply to the receiver, and obtain pay- 
 ment of their interest out of any surplus rents in his 
 hands; but if they make no such application, they are 
 taken to rely (for both their principal and their interest) 
 on their security against the land («/) . 
 
 (2) By second Where the second mortgagee is in possession, he is 
 possessioiT— accountable like any other mortgagee in possession; but. 
 
 Back-rents, — 
 accoimta- 
 bility for : 
 (1) By first 
 mortgagee in 
 possession, — 
 after notice 
 by second 
 mortgagee. 
 
 ()•) Naliotial Bank v. United Hand in Sand, i App. Ca. 391. 
 (s) Bii-kerton v. Walker, 31 Ch. Div. 151 ; Bateman v. Hunt, 1904, 2 
 K. B. 5-iO. 
 
 (t) Vorl^y V. Cooke, 1 Giff. 230. 
 (k) Mai-ieod v Jones, 24 Ch. D. 2S9; 
 (4 Law V. Gkrin, L. R. 2 Ch. App. 634. 
 ly) Bertie v. Lord Abingdon, 3 Mer. 560. 
 
MORTGAGES . 
 
 369 
 
 as a general rule, he is not accountable to the first mort- after notice hy 
 gagee for the back-rents received (2), — unless, of course, first mort- 
 the first mortgagee has given notice to the tenants to pay 
 their rents bo him. Also, if the receiver has been apjDointed 
 on behalf of the second mortgagee, that appointment is 
 always made subject to the rights of the prior incum- 
 brancer who shall be in (or who shall enter into) posses- 
 sion of the mortgaged hereditaments, — ^so that the occu- 
 pying tenant, paying either his back-rents or his accruing 
 rents to the first mortgagee after notice from the latter so 
 to do, is not liable to pay the same rents over again to 
 the second mortgagee (or to the receiver of the latter (a)). 
 
 A mortgagee in possession, although liable to account, Mortgagee is 
 is not obliged to account according to the actual value of for what he 
 the land, — Unless it is proved, that he might have received actually re- 
 the full value; or unless, in the exercise of his power of (but for his 
 sale, he makes a gross mistake (whereby the value of the «■»'/"/ default) 
 
 ■ ■ T ••! i/7\\ mi p 1 1 "® might have 
 
 security is diminished (0)): Therefore, when the mort- received,— 
 ■gagee enters, he is (in general) accountable only for what 
 he actually receives, or would (but for his wilful default) 
 have received (c), — and is not bound to {e.g.) work (or 
 keep working), at a speculative profit, the mines in the 
 land mortgaged (d) . But if he pulls down old buildings 
 unnecessarily, and erects new buildings in the place of 
 them, he will be liable for the interim loss of rents (e) . 
 
 For advantages of a purely collateral character derived except as 
 by the mortgagee out of his possession of the mortgaged lomfural 
 property, — and which do not affect the mortgagor, — the advantages, 
 mortgagee is not accountable (/) : For example, a man 
 who is in occupation as a tenant, and who derives some 
 special profit from his occupation, is not accountable for 
 that, — merely because he happens to be also a mortgagee 
 
 (z) Zaw V. Glenn, supra. 
 
 (a) Preston v. Tunbridge JVells, 1903, 2 Ch. 323. 
 
 (b) Tomlin v. Luce, 41 Ch. Div. 573. 
 
 (c) Mai/er-v. Murray, 8 Ch. D. 424. 
 
 (d) Rowe V. Wood, 1 J. & "W. 31.i ; Millett v. JDaveij, 31 Beav. 470. 
 
 (e) Sandon v. Hooper, 6 Beav. 246. 
 
 (/) White V. CUi/ of London Brewery Co., 42 Ch. Div. 237. 
 
 s2 
 
260 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 of the premises {g) ; and if one of two co-owners of a 
 patent is also a mortgagee of his co-owner's share, he will 
 not be liable to account at all for the profits which hepiakes 
 by working the patent (h), — excepting, possibly, in 
 respect of any royalties received under licences to work 
 the patent {i) . 
 
 Annual rests, 
 — when and 
 when not 
 directed. 
 
 In taking the m.ortgage account, the aggregate rents are, 
 in general, written off against the aggregate interest (/c) . 
 But if, at the time of the mortgagee taking possession, 
 the interest on his principal money is not in arrear, — or if 
 the mortgagee remains in possession after he has been 
 fully paid his mortgage debt (I), — the account will (in 
 either of these two cases) be taken, in general, with " an- 
 nual rests," — That is to say, if the rents in any year exceed 
 the amount of that year's interest, the excess will (in every 
 year) be applied in reduction of the principal moneys 
 due (m) : But otherwise annual rests will not be directed . 
 And, nota bene, annual rests will either be taken through- 
 out the whole account, or not at all, — That is to say, there 
 will be no break in the account, or in the principle of the 
 account (n) . 
 
 Mortgagee 
 until payment 
 could not be 
 compelled to 
 produce mort- 
 
 fagor's title- 
 eeds; sems. 
 
 A mortgagee could not, formerly, have been compelled 
 by the mortgagor to produce his (the mortgagor's) title- 
 deeds, until payment of principal interest and costs, — 
 even though the production was required for the purpose of 
 enabling the mortgagor to negotiate a loan to pay off the 
 mortgagee (o). But the law in this respect is now altered, 
 as regards all mortgages made subsequently to the 31st 
 December 1881 (p), — That is to say, the mortgagee is now 
 compellable to produce the mortgagor's title-deeds before 
 payment of the debt: But that does not mean, semble, 
 that he is compellable to produce also the mortgage deed 
 
 ig) Page v. Linwood, i CI. & F. 399. 
 
 (A) Mwards v. Picard, 1909, 2 K. B. 903. 
 
 (i) 7 Edw. VII. e. 28, s. 1 ; and 7 Edw. VII. c. 29, a. 37. 
 
 (k) Union Bank v. Ingram, 16 Ch. B. 53. 
 
 [T) Ashworth v. Lord, 36 Ch. Div. 545. 
 
 (m) Patch v. Wild, 30 Beav. 99. 
 
 (») Wrigleii v. Gill, 1906, I Ch. 165. 
 
 (o) Sheffield y. Men, 10 Ch. Div. 291. 
 
 [p) 44 & 46 Vict. c. 41, u. 16. 
 
MORTGAGES. 261 
 
 itself before payment (q), — Seil., Because the mortgage 
 
 deed is the mortgagee's own deed, and never was one of 
 
 the mortgagor's title-deeds, — unless where (the right of 
 
 redemption being disputed) the mortgage deed also itself 
 
 becomes a title-deed of his (r) . But, of course, upon re- Mortgagee's 
 
 demption, the mortgagee must hand over the mortgage ijj^g^f^eeds. 
 
 deed (along with all the title-deeds), — and will be liable 
 
 in damages for any title-deed that is then missing (s) : 
 
 Which damages may be considerable (t), — even where the 
 
 loss is merely innocent on the mortgagee's part (u) . Also, 
 
 where there is a mortgage, and the mortgagee assigns the 
 
 mortgage debt and the principal security therefor, he must 
 
 assign also all (if any) collateral securities he may hold for 
 
 the same debt, — Scil., because the transferee must (as 
 
 regards the mortgagor) occupy the same position (neither 
 
 better nor worse) that the transferor occupied (x) . 
 
 The mortgagee cannot purchase for himself under the Mortgagee 
 power of sale contained in his mortgage deed (y) ; but vaUd°lease* '^ 
 a second mortgagee may lawfully purchase from a first frommort- 
 mortgagee {z) . Also, an execution creditor may law- ^^"^ ». 
 fully purchase on the sale by the sheriff (a) . Where the gagee may 
 property in mortgage consists of (or comprises) a re- purchasefrom 
 newable leasehold, and the mortgagee renews, — he wiU gagee. 
 take the renewal sutject to the old equity of redemp- Eenewed 
 tion (6), being allowed only his costs of the renewal (c). leasehold. 
 Also, if an advowson be in mortgage, and the living Advowson. 
 become vacant, the mortgagor (and not the mortgagee) 
 presents {d), — That is to say, the mortgagor nominates 
 to the mortgagee the person to be appointed to the living, 
 and requests the mortgagee to present such nominee to 
 the bishop for institution and induction; and the mort- 
 
 [q) Sheffield v. Edm, supra. 
 
 \r) Patch T. Ward, L. E. 1 Eq. 436. 
 
 («) James \. Ruynsey, 11 Ch. Div. 398. 
 
 (C) Brown v. Sewell, 11 Ha. 49. 
 
 («) Shelmardine v. Sarrop, 6 Madd. 39. 
 
 {x) Parker v. Clarke, 30 Beav. 54. 
 
 (y) Astwood V. Cobbold, 1894, A. C. 150. 
 
 (z) Shaw v. Bunney, 33 Beay. 494. 
 
 (a) Stratfordy. Twynam, Jao. 418. 
 
 (i) Salt V. B.oU, 1 Ch. Ca. 190. 
 
 («) Godfrey v. Watson, 3 Atk. 518. 
 
 {d) Mackenzie v. Robinson, 3 Atk. 559. 
 
262 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 gagor may not agr&e to the contrary (e). The mortgagee 
 of an advowson may, of course, realise his security by 
 sale, — and may also (unless debarred by his own 
 laches (/)) foreclose. 
 
 If a mortgagee in possession should have felled timber, 
 tM)er'— *^^' an account would be decreed of the proceeds; and the 
 unless security amount (appearing due on the account) would be applied, 
 was msuffi- jj^ payment of the interest, and then in reduction of the 
 principal; and the mortgagee may be restrained from 
 continuing to fell the timber, — excepting that, if his 
 security is insufficient, the Court will not restrain 
 him {g) . And the like rules applied (and still apply) 
 to the opening of new mines {h) : But as regards trees^ 
 the mortgagee in possession may now cut and sell timber 
 (and other trees) ripe for cutting and not planted or left 
 standing for shelter or ornament, — and may even employ 
 a contractor for the purpose (the cutting by such con- 
 tractor to be completed within twelve months from the 
 date of the contract (i)). 
 
 cieut ; 
 
 but may now 
 do BO, in a 
 proper 
 manner. 
 
 Notice, 
 efEect of, — 
 generally ; 
 and also in 
 connection 
 with the tae!c- 
 ing and the 
 comolidafion 
 of mortgages. 
 
 Where there have been successive mortgages to different 
 individuals, — and the mortgages are either of the same 
 property (in the case of each) or are of different pro- 
 perties, — two very intricate matters now fall to be con- 
 sidered, namely the doctrine of Tacking and the doctrine 
 of Consolidation; but, for the better understanding of 
 each of these two doctrines, it is necessary to first con- 
 sider the doctrine of Notice. 
 
 Purchaser I. The Dodtrine of Notice. — No rule of equity is better 
 
 with notice of established than this, that the person who purohases an 
 trustee to the estate, although for valuable consideration, after notice 
 of a prior equitable estate or right, will not be able (by 
 means of the legal estate or otherwise) to defeat the prior 
 equitable estate or right, — but will, on the contrary, be 
 deemed a trustee of the legal estate to the extent of (and 
 
 extent of such 
 claim. 
 
 (e) TTelch v. Peterbormigh {Sp.), 15 Q. B. D. 432. 
 (/) Brooks V. Muekleston, 1909, 2 Ch. 519. 
 (g) Withringion v. Bankes, Sel. Ch. Ca. 30. 
 
 h) Millett V. Dmey, 31 Beav. i70. 
 
 i) Conveyancing Act, 1881, a. 19. 
 
MORTGAGES . 26& 
 
 for the purpose of supporting) that prior estate or right: 
 And if, therefore, a vendor should contract with two dif- 
 ferent persons successively (for the sale to each of them 
 of the same estate), and the party with whom the second 
 contract is made has notice of the first contract, and not- 
 withstanding completes his contract by taking a con- 
 veyance of the legal estate, — The Court will (in a suit 
 for specific performance by the first purchaser against 
 the vendor and the second purchaser) decree the defen- 
 dants to convey the estate to the first purchaser (it), — 
 and the Court will, usually, make the like decree, although 
 the notice of the prior title should be constructive only (?). 
 But, nota ben&, it is to be assumed in all these cases, 
 that the first contract is a specifically enforceable con- 
 tract (m), — because, if it is not, the second purchaser need 
 not regard it, — and the right to upset it even may be 
 conveyed to the second purchaser (m). 
 
 In Le Neve v. Le, Neve (o), where lands in Middlesex Lands in 
 had been settled on a first marriage (by a deed which •'^^'^'I'^^^^'TT 
 
 Qlisct 01 n oT.i Oft 
 
 was not registered), and were again settled upon a second of unregis- 
 raarriage with notice of the former settlement (by a deed ^^^^ '^®^'^- 
 which was registered), the former settlement was pre- 
 ferred to the latter settlement, — SciL, because registra- 
 tion is not notice (p), and the settlor (who was the same 
 person in the case of both settlements) was the person 
 solely to blame for the non-registration of the first 
 settleinent. But, usually, the registered assurance will 
 prevail (g), — unless it is a mere forgery (r): That is to 
 say, it requires a very strong case to get over the effect 
 of the B,egistry Acts, — express notice amounting to fraud 
 being required (s), and mere negligence {t) or construc- 
 tive notice (m) not sufficing: But it sometimes happens, 
 that (as a matter merely of construction) the subsequent 
 
 [h) Fatter v. Sanders, 6 Hare, 1 . 
 
 {T} Trinidad Asphalte Co. v. Coryat, 1896, A. C. 687. 
 
 \m) Goodwin v. Fielding, i De G. M. & G. 90. 
 
 \n) De Eoghtm v. Money, L. E. 2 Ch. App. 164. 
 
 (o) Amb. 436. 
 
 ( jo) Cator V. Cooley, 1 Cox, 82. 
 
 (}) Ehey v. Lutyens, 8 Ha. 169; Jollandy. Stainbridge, 3 Ves. 478. 
 
 (r) Cooper v. Vesey, 20 Ch. D. 611 ; Gibbs v. Messer, 1891, A. C. 248. 
 
 {«) Holland v. Mart, L. R. 6 Oh. App. 678. 
 
 (t) Agra Bank v. Barry, L. B. 7 H. L. 138. 
 
 (k) Bradley v. Rie%es, 9 Ch. Div. 212. 
 
264 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 document is subject to the prior document, — In which 
 case, the subsequent document will not (merely by force 
 of its prior registration) prevail over the prior docu- 
 ment which is subsequently registered (x) . 
 
 Lands in And as regards lands in Yorkshire, registered assura/Uces 
 
 Seot^o?notice liave priority (inter se) according to the dates of their 
 of unregis- registrations ; and the priorities given by the Act are not 
 affected by notice, — except in the case of actual fraud (y), 
 — So that, in Yorkshire, registered assurances of lands axe 
 now in all cases on the same footing (in effect) as regis- 
 tered judgments. But, nota bene, where a document 
 (e.g., an adjudication order in bankruptcy) is not regis- 
 trable, then (in Middlesex and in Yorkshire equally) its 
 priority will not be defeated, by the mere registration 
 of a subsequent registrable incumbrance (z) . Also, where 
 a registered security has been obtained under circum- 
 stances " of grave moral blam.e " attaching to the lender, — 
 and it is registered purposely with the view of prejudicing 
 the prior unregistered security, — That is "actual fraud" 
 within the meaning of the Yorkshire Registry Acts (a) . 
 Also, an unregistered equity, of which the subsequent 
 registered purchaser has notice, will still prevail against 
 him, — 8cil., because it would be a fraud on his part not 
 to hold his registered title subject thereto (6) . Also,i 
 the general rule as regards reed estate, is, that a subse- 
 quent equitable incumbrancer, who has taken his mortgage 
 (or sub-mortgage) without notice of a prior mortgage, 
 will not acquire priority over the prior mortgage, merely 
 by giving notice of his mortgage (c) (or of his sub-mort- 
 gage (d)) to the trustee in whom the legal estate may 
 remain vested; and as regards personal ©state also, a 
 second incumbrancer on a fund in Court, who (at the 
 time of taking his security) has notice of a first incum- 
 
 (x) Jones V. Barker, 1909, 1 Ch. 322. 
 
 (V) 47 & 48 Viut. 0. 54 ; 48 Vict. c. 4 ; and 48 & 49 Vict. u. 26. 
 
 (z) Se Caleott and Ehin, 1898, 2 Ch. 460. 
 
 (o) Battison v. Eohson, 1896, 2 Ch. 403. 
 
 (5) Crowly v. Bergtheil, 1899, A. C. 374. 
 
 (e) Humber v. Bichards, 45 Ch. D. 589. 
 
 \d) Sopkins v. Memsworth, 1898, 2 Ch. 347. 
 
MORTGAGES. 265 
 
 brance thereon, will not acquire priority over the first 
 incumbrancer, merely by giving notice to the debtor (e), 
 or obtaining a stop-order on the fund (/) before the first 
 incumbrancer has done so. Also, generally, as regards 
 mortgages of a chose in action, you do not gain priority 
 by giving prior notice of your mortgage, over any 
 prior mortgage of which you have notice yourself (actual 
 or constructive) at the time you lend your own money on 
 your mortgage (g) . 
 
 It has, however, been long settled, that if a person pur- Case o* sub- 
 
 1 iir> 111 -1 ■ ■ 1 ■ 1 purchaser With 
 
 chases land for valuable consideration with notice, but notice, where 
 from a person icho bought the land without notice (h), the ^^Im with- 
 seoond purchaser may (provided he obtain the legal estate out notice, 
 in the land, or have the best right to call for it) shelter 
 himself under the first purchaser, — Because, otherwise 
 the first purchaser (although bond fide) would be unable 
 to deal with the land, and the sale of real estates would be 
 clogged. 
 
 And similarly, where a lessee had created a restrictive 
 covenant binding on the demised premises, and afterwards 
 surrendered the lease to his lessor who had no notice of 
 the covenant, — so that the surrender was fully effective, 
 — and the lessor then executed a new lease to the son of the 
 lessee (the son being fully cognisant of the creation of 
 the restrictive covenant by his father), — ^the Court said,; 
 the Ison was not bound by it (i) . 
 
 . And conversely, if a person who buys with notice sells Caseof suh- 
 to a bond fide purchaser for valuable consideration with- without 
 out notice, the latter may protect his title, — Therefore, notice, where 
 in Harrison v. Forth {h), where A. purchased an estate bought with 
 with notice of the plaintiff's incumbrance (which was "°*i'=e- 
 equitable), — and then sold the estate to B. who had no 
 notice; and B. afterwards sold the estate to C, who had 
 
 (e) In re Ind Coope # Co., 1911, 2 Ch. 223. 
 (/) Be A. D. Holmes, 29 Ch. D. 786. 
 
 (y) Spencer v. Clarke, 9 Ch. D. 137 ; In re WenigerU Policy, 1910, 2 Ch. 
 291. 
 
 [h) In re Sandman and Wilcox, 1902, 1 Ch. 599. 
 (i) Wilkes r. Spooner, 1911, 2 K. B. 473. 
 [k) Preo. Ch. 51. 
 
266 THE ORIGINALLY EXCLUSIVE JUEISDICTION . 
 
 notice, — The Court held, that, thougfh A. and C. had 
 notice, yet (as B. had no notice) the plaintiff could not be 
 relieved against the defendant C. But, nota bene, if B. 
 had re-sold to A., the title of A. would have become again 
 affected with the notice which A. had(Z). 
 
 A purchaser of real estate, who had notice of a volun- 
 tary settlement, was formerly not affected by it (m), — 
 the words of the statute 27 Eliz. c. 4 (against fraudulent 
 conveyances), having so provided; but, by reason of the 
 Voluntary Conveyances Act, 1893, he would now be 
 affected hy notice of such a settlement. Also, where a 
 subsequent purchaser has actual notice of an equitable 
 charge, and he subsequently completes his purchase on the 
 faith of a forged discharge of (or forged receipt for) the 
 equitable charge, — which forgery is, of course, a 
 nullity (w), — he will hold subject to the charge, — and that 
 even in the case of registered land (o) . But notice of a 
 contract, which is merely personal and collateral, will not 
 affect a purchaser of the lands (p), — but a hire-purchase 
 agreement (of machinery to be affixed to the land) is 
 something more than merely personal and collateral {q) . 
 
 Actual notice. The effect of notice is, in general, the same, whether 
 the notice be actual or constructive (r) : — 
 
 And, Firstly, as regards Actual Notice, — In order to 
 make it binding, it must be given by a person interested 
 in the property, — and in the course of the business (s) . 
 Therefore, vague reports from persons not interested 
 in the property (or notice given to a person in his 
 private and not in his business capacity (<)), will not 
 amount to actual notice ; and a mere assertion of 
 title in some other person (or a mere general claim 
 of title by some other person) does not amount to 
 actual notice of such other title : But if the know- 
 
 {l) Barrow's case, 14 Ch. D. 432. 
 
 [m) Buckle v. Mitchell, 18 Ves. 100. 
 
 (») Jaredv. Clements, 1902, 2 Ch. 399. 
 
 (o) Oibbs V. Messer. 1891, A. 0. 248. 
 
 (p) Phillips T. Milkr, L. K. 10 C. P. 420. 
 
 (q) In re Hamuel Alien, 1907, 1 Ch. 575. 
 
 M JProsser v. Sice, 28 Beav. 68. 
 
 (s) Barnhart v. Oreenshields, 9 Moo. P. C. 18. 
 
 (t) Agra Bank t. Barrt/, L. R. 7 H. L. 135. 
 
MORTGAGES. 267' 
 
 ledge (from whatsoever source derived) is of a kind to 
 operate upon the mind of any man of business, then it 
 virill amount to actual notice (m), — or, at all events, it may 
 do so, but not necessarily : And in one case, where it was 
 endeavoured to make a solicitor (C.) liable as a construc- 
 tive trustee for the sale-prooeeds of land coming to his 
 hands, and which he had paid over to the persons right- 
 fully entitled thereto (as he honestly believed), — notwith- 
 standing that an alleged settlement was brought to and 
 pressed upon his notice, and a copy or draft of it even 
 was produced (the settlement itseK, if it had ever been 
 executed, being missing); and the solicitor (C.) persisted 
 (and had good cause for persisting), that the settlement 
 never had been executed, — The Court said, that C . could 
 not, in such a case, be made liable, — although the settle- 
 ment (as afterwards appeared) had been executed, in 
 fact {x) . 
 
 Secondly, as regards Constructive Notice, — That is no Constructive 
 
 more than evidence of notice, the weight of the evidence ""^^f?;!" . 
 1 ■ 1 1 1 y-^ ■ T 1 1 vaxieties oi, — 
 
 being such that the Court imputes to the purchaser that 
 
 he had notice, — Whence also constructive notice has been 
 sometimes called "imputed" notice (2/): And in Jones 
 V. Smith (z), Wigram, V.-C, resolved oases of construc- 
 tive notice into two classes: — 
 
 Firstly, " Cases in which the party charged has had (i) Where 
 actual notice, that the property in dispute was in faot ^f^fj^°^'^ 
 incumbered in some way, — and the Court has thereupon which would 
 bound him with constructive notice of facts and instru- ^^^^g^^*" 
 ments, to a knowledge of which he would have been led, other facts, 
 by an inquiry into the incumbrance of which he had actual 
 notice." 
 
 And, Secondly, "Cases in which the Court has been (2) Where 
 satisfied (from the evidence before it) that the party ^ge^avdded 
 charged has designedly abstained from inquiring, for the to escape 
 very purpose of avoiding notice, — a purpose which, if '^° °®' 
 proved, would clearly show, that he had a suspicion of the 
 truth, and a wilful determination not to learn it." There- 
 
 (m) Flumi V. Fluitt, 2 Anet. 438. 
 
 (x) Williams V. Williams, 17 Ch. D. 437. 
 
 (S/) T/ie Birnam Wood, 1907, P. 1. 
 
 (z) 1 Hare, 55, applied in Bavis v. Hutchings, 1907, 1 Ch. 356. 
 
268 
 
 THE ORIGINALLY EXCLUSIVE JUEISDICTIOK . 
 
 Examples of 
 constnictiTe 
 notice. 
 
 fore, in Bisco V. Earl of Banbury (a), where the purchaser 
 had actual notice of a specific mortgage, and the deed 
 creating that mortgage referred also to other incum- 
 brances, — The Court held, that the purchaser (knowing 
 of the specific mortgage) ought to have inspected that 
 mortgage, — and so would have discovered the others. 
 [But, nota bene, the duty to inspect a specific document 
 may (under specia,l circumstances) not arise, — In which 
 latter case, the purchaser would not be taken to know all 
 the contents of the document (&): Also, in mercantile 
 transactions, the doctrine of constructive notice, of the 
 contents of one document from the reference to it in 
 another document, is not applicable (c) .] And again, in 
 Birch V. Ellames (d), where the title-deeds of an estate 
 were deposited with the plaintiff by way of security; and 
 the defendant (fourteen years after) took a mortgage, 
 with actual notice of the deposit with the plaintiff (but 
 without inquiring the purpose for which the deposit was 
 made), — The Court upheld the plaintiff's charge. 
 
 Absence of 
 the title- 
 deeds, — 
 precautions 
 to observe. 
 
 But the mere absence of the title-deeds, has never been 
 held sufficient of itself to affect a person with notice, if 
 he has bond fide inquired for the deeds, and a reasonable 
 excuse has been given for the non-delivery of them, — 
 For the Court cannot in such a case, impute to that per- 
 son either fraud or negligence (e) : Secus, if he omit all 
 inquiry as to the title-deeds (/). And as reg'ards regis- 
 tered lands, the law appears to be, that although you are 
 under a duty to call for and to inspect all documents 
 of which a memorial has been registered {g), yet you 
 are under no duty to inquire as to documents which have 
 not been registered (h), — assuming, of course, that (in the 
 latter case) you have no actual notice of them. Also, a 
 distinction has sometimes been taken, between wills and 
 marriage settlements, — it being said, that if you have 
 
 (a) 1 Ch. Ca. 287. 
 
 (S) Ward y. Valletort Co., 1903, 2 Ch. 654. 
 
 (c) London Joint Stock Bank v. Simmons, 1892, A. C. 201. 
 
 (c[) 2 Anstr. 427. 
 
 (e) Spemer v. Clarice, 9 Ch. B. 137. 
 
 (/) Oliver v. Sinton, 1899, 2 Oh. 264. 
 
 (17) Kettletcellv. Watson, 26 Ch. Div. 501. 
 
 (A) Affra Bank v. Barry, L. E. 7 H. L. 135. 
 
MORTGAGES. 269 
 
 notice of a settlement, but are told it does not affect the 
 property, you are safe in omitting to inspect the settle- 
 ment; but that you are not safe (on your purchase from 
 the heir-at-law of a testator) in omitting to inspect the 
 will of which you have notice (i) . And, generally, where 
 a deed which is abstracted recites prior deeds which are 
 not abstracted, the purchaser (or the mortgagee) will be 
 taken, of course, to have notice of these prior deeds; but 
 if the abstracted deed is (say) sixty years old, — or (now) 
 forty years old, — and there is nothing to suggest that the 
 title is bad (or is affected by the prior deeds), you may 
 assume that there is nothing in them which concerns 
 yon(k). 
 
 A lessee has (and necessarily has (I)) constructive notice Lessee ha^ 
 of his lessor's title, — Scil., because, li a man who pur- notioe"of ^^ 
 chases a fee simple is bound to look into the title in a, lessor's titie. 
 regular way, so also is a man who takes a lease for 1,000 
 years, or for twenty-one years, or any other lease; and 
 the most express statement (made by the lessor to the 
 lessee), that there are no restrictive covenants, affecting 
 his (the lessor's) title, will not save the lessee from being 
 affected with constructive notice of them, if there are 
 any(m): That is to say, — Before the Vendor and Pur- 
 chaser Act, 1874, the lessee was frequently debarred from 
 looking into the lessor's title, — and since that Act, he 
 cannot (unless he expressly stipulate to see it) look into 
 that title; but in eitlier case, his not looking into the title 
 amounts to the same thing as closing his eyes to avoid 
 inquiry. 
 
 Also, knowledge by the purchaser, that the land is in Notice of 
 the occupation or tenancy of any one, is constructive occupation or 
 notice of the terms of such occupation or tenancy, — That effect of. 
 is to say, so far as such terms may affect the subsequent 
 relations between the purchaser (completing his contract) 
 and the occupying tenant only, — but not so as to exempt 
 
 (i) Jones v. Smith, supra. 
 
 {k) Prosssr v. Watts, 6 Madd. 59. 
 
 {I) Fatman v. Harland, 17 Ch. D. 353, on p. 357. 
 
 (»») In rs Cox and Neve's Contract, 1891, 2 Ch. 109. 
 
'870 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 the vendor from the duty of disclosing the terms of the 
 tenancy to the purchaser (n): And notice of Buch 
 _occupation or tenancy is constructive notice also of any 
 agreement which the occupying tenant may hold for the 
 purchase of the property (o), — or (in fact) of any other 
 interest of the occupying tenant in the property {p) : Also, 
 knowledge by the purchaser, that the tenants in occupa- 
 tion pay their rents to some particular person (other than 
 the assuming vendor) is notice, — and is actual notice, — of 
 the title of such other person {q) . 
 
 Notice that Jt -^iH ^q remembered also, that upon any assignment 
 
 a residue,— or of the residue under a will, the assignor takes subject to 
 B a^rust f und, the unpaid costs and debts, — and generally to all the 
 equities affecting the residue {r) : And it is here to be 
 further remembered, that when you take a conveyance 
 (whether as purchaser or as mortgagee) of the share of 
 a beneficiary who happens to be also a trustee, you take 
 subject to, — and (in effect) have constructive notice of, 
 — all the trusts affecting that share, — So that the legal 
 estate which you get from that trustee will not protect 
 you against (e.g.) a prior equitable mortgage of the 
 share (s), — or, semhle, against the beneficiaries them- 
 selves (<). 
 
 (3) Notice to There is a third speoies of constructive notice, — That is 
 
 notSe tt^Ti'rin- *° ^^3"' ^o^ice to an agent is sometimes held to be con- 
 
 dpai,— when, structive notice to his principal; and this is generally 
 
 andwhennot? gQ^ where the Same agent is concerned (in the case of 
 
 sales) for both vendor and purchaser (m), — or (in the case 
 
 of mortgages) for both lender and borrower (cc), — an agent 
 
 so circumstanced being usually called the "common 
 
 agent." But the imputation of constructive notice is in 
 
 this case also merely a presumption of fact; and the 
 
 (m) Caballero v. Hmiy, L. B. 9 Ch. App. 447. 
 
 (o) Daniels v. Davison, 16 Ves. 2*9. 
 
 [p) Allen V. Anthony, 1 Mer. 282. 
 
 Iq) Simtv. Luck, 1902, 1 Ch. 428. 
 
 ()•) Supra, Tp. 53. 
 
 (.«) Ferhain v. Kempster, 1907, 1 Ch. 373. 
 
 (*) Cap II Y. Winter, 1907, 2 Ch. 376. 
 
 (u) Spencer v. T pham, 2 Jur. N. S. 865. 
 
 (4 In re Bampshire Land Co., 1896, 2 Ch. 743. 
 
MORTGAGES. 271 
 
 presumption may be rebutted, — By showing {e>.g.), that 
 the agent had been guilty of some fraud, the communica- 
 tion of which to his principal could not be reasonably, 
 ■assumed (?/), — a principle which has been recognised also 
 in the Partnership Act, 1890 {z), whereby it is enacted, 
 that notice to the active partner is notice to all the 
 partners, unless the active partner is designing a fraud. 
 
 However, when the agent is the solicitor of the party, 
 and the fraud of the solicitor is in the actual transaction 
 itself,, it is not competent for the client to escape the 
 effect of the constructive notice (a) : Nor will he escape, 
 if the defect (or irregularity) is of so glaring a character, 
 that any one would have necessarily discovered it (6): 
 Also, the most positive proof, that the agent did not, in 
 fact, communicate the notice to his principal, will not (in 
 this class of cases) excuse (or protect) the principal (c), 
 — Scil., in a matter within the scope of the agent's 
 authority. 
 
 Where the common agent is (e.g.) the secretary of "Common 
 both the borrowing and the lending company, and he has ^tSe ~ 
 personal notice of some irregularity which (if known to through, 
 the lending company before the loan) would be fatal to 
 the validity of the loan, — and he fails to communicate 
 his knowledge of the irregularity to the lending company j 
 — The Court will not impute to the lending company a 
 knowledge of the irregularity (d), — Scil., Because the 
 lending company may reasonably assume, that all pre- 
 liminaries to the loan (being matters of internal manage- 
 ment of the borrowing company) have been duly 
 observed (e) : And the Court has gone so far as to say, 
 that (in the case of such conrnmon agent), if notice is to 
 be imputed to the principal, the agent must be one who 
 has authority both to give the notice on behalf of the 
 one principal, and to receive it on behalf of the other, — 
 
 (y) In re Cousins, 31 Ch. D. 671. 
 
 (z) 53 & 54 Vict. c. 39, a. 16. 
 
 \a) Dixon v. Winch, 1900, 1 Ch. 736. 
 
 (b) Kennedy v. Green, 3 My. & K. 699. 
 
 (c) Bauden r. London, ^c. Axsurance, 1892, 2 Q. B. 534. 
 d) Simpson T. Molsons' Bank, 1'*H.5, A. C. 270. 
 
 'e) Moyal British Bank v. Turquand, 6 El. & Bl. 327. 
 
272 
 
 THE OKIGINALLY EXCLUSIVE JURISDICTION. 
 
 Constructive 
 notice,— 
 under the 
 Conveyancing 
 Act, 1882. 
 
 and failing either of these duties, the notice will not be 
 imputed (/) . Also, the mere fact that only one soli- 
 citor was employed in the particular transaction, does not 
 make him the common agent (or common solicitor) for 
 both {g), — S'cil., because, as regards the one of them, he 
 may be the ad hoe solicitor only Qi) . 
 
 And, generally, as regards constructive notice through 
 a man's solicitors or counsel, if it is desired to affect in 
 equity the principal with notice of something anterior, the 
 notice must have been of something which the solicitor 
 (or his counsel) could be reasonably expected to have then 
 mentioned to his principal (i) : In other words, the know- 
 ledge must have been so material to the transaction which 
 was then in progress, as to have made it the duty of the 
 agent to have communicated it ta his principal: For 
 example, the transferee of a first mortgage would not 
 be affected by his then knowledge of an incumbrance 
 subsequent to the first mortgage, — so as to prevent the 
 transferee from afterwards making a further advance, — 
 such knowledge not having been material to the business 
 of the transfer, for which business alone the solicitor was 
 then acting (A;). And now, by the Conveyancing Act, 
 1882 (1), s. 3, a purchaser (or a mortgagee) shall not 
 be affected by notice, — Unless the instrument or thing is 
 within his own knowledge, — or would have come to. his 
 own knowledge, if reasonable inquiries and inspections 
 had been made by him; Or unless (in the same trans- 
 action) the instrument or thing has come to the know- 
 ledge of his counsel as such, or to the knowledge of his 
 solicitor (or other agent) as such, — or would have come 
 to the knowledge of his solicitor (or other agent) as 
 such, if Reasonable inquiries and inspections had been 
 made by him (m) : In other words, the doctrine of con- 
 structive notice is not to be applied in a wild sort of 
 way, in order to invalidate a purchase or a mortgage (w). 
 
 (/) Fenwick's case, 1902, 1 Ch. 607. 
 
 (g) Perry v. Hole, 2 De a. F. & J. 38. 
 
 (A) Eettlewell v. Watson, 21 Ch. D. 686. 
 
 (i) fuller V. Bennet, 2 Hare, 394. 
 
 [k) Wylie v. Pollen, 32 L. J. (Ch.) N. S. 782. 
 
 (Z) 48 & 46 Vict. 0. 39. 
 
 (m) Bailey v. Barnes, 1894, 1 Ch. 25. 
 
 («) Mogridge v. Clapp, 1892, 3 Ch. 382. 
 
MOETGAGES. 273 
 
 II. The Doctrine of Tacking. — The usual effect of tack- Tacking, 
 ing is, to enable a third mortgagee, who buys up a first 
 mortgage, to squeeze out the second or mesne {i.e., inter- 
 vening) mortgage, — and thereafter to insist upon being 
 paid the aggregate amount of the first and third mort- 
 gage debts before the second mortgagee gets paid any- 
 thing at all. And the principle is this, namely, — That 
 where the equities are equal, the law shall prevail, — In 
 aquali jure, melior est conditio possidentis ; and as the 
 third mortgagee comes in upon a valuable consideration 
 and without notice, therefore, by getting in the first mort- 
 gage (being a legal mortgage), he shall protect his honest 
 third mortgage debt. 
 
 There are three leading rules of the doctrine (o), (D Third 
 namely:— (1) Firstly, If a third mortgagee buys in the m^bSfnotice 
 first mortgage (being a legal mortgage), though it be P*^?"™.*^', , 
 pending an action by the second mortgagee to redeem the mor^ge with 
 first (k), — but not after a decree or iudgment for an iioticeof 
 
 „ , . , . . . / , ° , , . 1 second, may 
 
 account or lor settling the priorities (g), — yet the third tack, 
 mortgagee (having obtained the first mortgage, and got 
 the law on his side and equal equity) shall squeeze out 
 the second mortgagee, — the legal estate so obtained by, 
 the third mortgagee being looked upon as a " tatnila in 
 naufragio," by means of which the third mortgage© 
 escapes from the shipwreck of his third mortga.ge: And 
 although the third mortgagee gets in the first mortgage 
 uith notice, he shall, nevertheless, be allowed to tack, — 
 equity only requiring that the third mortgagee shall not 
 have had notice of the second mortgage at the time of 
 LENDING HIS MONEY On the third mortgage; and he does 
 not, in fact, look about him, until that loan is found to be 
 in danger. But if an owner (having the legal estate) 
 create a charge in favour of A., and then a second charge 
 in favour of B., and then a third charge in favour of C, — 
 He cannot (by his oion voluntary act) alter the equities 
 between A., B., and C, — by transferring the legal estate 
 
 (o) Brace v. Duchess of Marlborough, 2 P. W. 491. 
 (p) Selchior v. Renforth, B Bro. P. C. 28. 
 (q) Bristol V, Hungerford, 2 Vem. 524. 
 
274 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 to any one of them {r); and the Land Transfer Act, 1897, 
 appears to have in no way altered this rule (s) . Apparently, 
 also, if the puisne mortgagee, who gets in the legal estate, 
 gets it in in autre droitj, he cannot use it for any purpose 
 of tacking (t). 
 
 (2) Secondly, If a judgment-creditor buys in the first 
 mortgage (although being a legal mortgage), he shall not 
 tack his judgment to the mortgage, — Soil., because a 
 judgment-creditor does not lend his money on the im- 
 mediate view or contemplation of the land ; and the effect 
 of the judgment is, in fact, to charge only the interest 
 which at the time remains in the debtor (m). 
 
 (3) But, Thirdly, If a first mortgagee (being a legal 
 mortgagee) lends a further sum to the mortgagor upon 
 a judgment, he shall retain against a mesne mortgagee 
 until both his securities are satisfied (a;), — and a fortiori, 
 if the first mortgagee lends the further sum on a mort- 
 gage: But the rule will not apply, if the mortgagee 
 (or any of the co-mortgagees {y)) had notice of the 
 mesne incumbrance at the time of making his further 
 advance (z), — So much so, that, although the first mort- 
 gage should have been to secure a sum and further 
 advances, still if the first mortgagee (at the time of mak- 
 ing any further advance) have notice of the mesne 
 incumbrance, he will not be entitled to tack such further 
 advance (a), — not even when he was under an obligation 
 to make the further advance (h): And this rule is appli- 
 cable even as against banks, in respect of the bank's lien 
 on the shares of a customer for moneys due and growing 
 due from the customer (e) . 
 
 As to "float- As regards the mortgage debentures of a company, 
 ing securities" tljese are in the nature of a "floating security" only, — 
 
 of a company. ^ ■' ■' ' 
 
 (2) Juclgment 
 creditor 
 buying in the 
 first mortgage, 
 shall not tack. 
 
 (3) First mort- 
 gagee, lending 
 a further sum 
 on a jxidg- 
 ment, may 
 tack against 
 a mesne 
 mortgagee. 
 
 (r) Shropshire Mail. Oo. v. Sfg.. L. R. 7 H. L. 496. 
 
 (s) Capital^ Counties Bank v Rhodes, 1903, 1 Oh. 631. 
 
 {t) Mnrret v. Paske, 2 Atk. 52. 
 
 (w) Jfhitworth T. Qaugain. 3 Hare, 416. 
 
 \x) Shepherd v. Tiilcy, 2 Atk. 348. 
 
 {y) Freeman v. Laing, 1899, 2 Ch. .355. 
 
 («) OredlandY. Potter, L. R. 10 Ch. App. 8. 
 
 (a) Holt V. HopMnson. 9 H. L Ca«. .514. 
 
 (*) Wesl^r. Williams, 1899, 1 Ch. 132. 
 
 (c) Bradford Bank v, Briggs, 12 App. Ca. 29. 
 
MORTGAGES. 275 
 
 They will therefore not have priority either over a 8ale(d), 
 or over a mortgage (e), of any specific part of the com- 
 pany's property, — not even, szmble, over an execution 
 duly perfected (/), or a garnishee order duly perfected (^), 
 — For the very intention of a "floating security" is, 
 that it shall affect only the property of the company 
 which shall be and remain the unincumbered property 
 of the company at the time of the realisation of the 
 security (h) : , But, in respect of the spwific real estate 
 specifically comprised in and mortgaged by the debenture 
 trust deed, that deed would (on being put in force) have 
 priority over a subsequent mortgage (^). Also, any pro- 
 vision contained in the debenture (whereby the company 
 should be restrained from m.ali;ing such specific sale or 
 mortgage as aforesaid) would not prevent a charge which 
 (like the solicitor's lien) arises by operation of law (k), 
 or any voluntary charge taken without notice (I), or a 
 mortgage taken (with or without notice) on after-pur- 
 chased land, for the vendor's lien thereon for his unpaid 
 purchase-money (m) : But otherwise the provision, 
 whether contained in the debenture itself or in the trust- 
 deed for securing the debenture, being duly registered as 
 the mortgage of the company would, semble, prevail (n) . 
 
 By the 8 Edw. VII. c. 69, s. 107 (continuing the like 
 provision of the 60 & 61 Vict. c. 19), floating securities 
 are (in all cases) subject to the debts which (upon the 
 bankruptcy of an individual) are entitled to be paid in 
 preference to the general debts of the company; and these 
 preferential payments are enumerated in s. 209 of the 
 Act (being the Companies Consolidation Act, 1908); but 
 the debentures are to be recouped (as against the unsecured 
 creditors) the amount taken by these preferential debts. 
 
 Floating securities, as between themselves, rank, — as a 
 
 {d) In re Some and Sellard's Contract, 29 Ch, Div. 736. 
 
 (e) Wheatley v. Silkstone, ^c. Co., v9 Ch. Div. 715. 
 
 (/) Taunton\. Sheriff of Warwickshire, lb95, 1 Ch. 734. 
 
 (g) Rohson v. Smith, 1895, 2 Ch. 118. 
 
 \h) Svans T. S. G. Quarries, LimUeii, 1910, 2 K. B. 979. 
 
 (i) In re Ind, Coope df Co., 1911, 2 Ch. 2-^3. 
 
 (k) Brunton v. Electrical Corporation , 1892, 1 Ch. 434. 
 
 \l) English and Scottish Mercantile v. BruntM, 1892, 2 Q. B. 700. 
 
 (m) Wilson v. Kellard, 1910, 2 Ch. 306. 
 
 (n) Wilson v; Kellard, supra. 
 
 t2 
 
^76 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 general rule (o), but not invariably {p), — according to the 
 respective dates of their respective issues, — each subse- 
 quent issue being (and being expressed to be) subject to 
 the prior issue or issues {q) . These floating securities, 
 pending their realisation, may, however, be diversely pro- 
 tected, — Scil., by the appointment of a receiver and other- 
 wise, — and against executions even (r) ; but they must (for 
 this purpose) have been duly filed, and also registered (-s), 
 --otherwise they will not be entitled to any priority over 
 the general creditors. 
 
 The following further points with regard to tacking 
 must now be mentioned, that is to say: — 
 
 society ^ft- (1) -'-*' "^^^d to be Considered, that no tacking (properly 
 gages,— go called) existed, where the first mortgage was to a build- 
 
 one tSne^t^ ing society and was paid off by the third mortgagee, and 
 recognised; t^g society thereupon either executed the due re-conveyance 
 or indorsed on the mortgage the due statutory receipt; 
 but such third mortgagee (it was considered) had priority 
 only for the sum paid to the building society (with 
 interest thereon (i)),— That is to say, the legal estate, 
 obtained by virtue of the statute, was deemed to have been 
 obtained for the benefit of all the mortgagees according 
 to the priority of their dates (and for the benefit of no 
 but is now one of them in particular): But the old opinion (which 
 semSie. ' was a very reasonable one) has been now held to be 
 erroneous {u), — excepting as regards the re-vesting of the 
 legal estate (a;) : And, therefore, when the building society 
 indorses the statutory receipt, and a new mortgage is made 
 {without notice of a mesne mortgage) to a third person, 
 who pays off the society and who takes over all the title- 
 deeds from the society, the new mortgage ranks as the 
 
 (o) Lister -v. Lister Co., 1893, W. N. 33. 
 (p) Cox Moore's case, 1908, 1 Ch. 604. 
 (?) Ward\. Valletort Co., 1903, 2 Ch. 654. 
 (»•) Davey v. Williamson, 1898, 2 Q. B. 194. 
 (s) 8 Edw. VII. 0. 69, ss. 93, 100. 
 (<) Fense v. Jackson, L. R. 3 Ch. App. 576. 
 («) ffoskinff V. Smith, 13 App. Ca. 682. 
 {x) CrosHe-Mill -v. Sayer, 1908, 1 Ch. 866. 
 
MORTGAGES . 27T 
 
 « 
 
 first mortgage, not only for the amount paid to the sdciefij^ 
 but for the whole sum secured by the neiv mortgage. 
 
 (2) Regarding mortgages with a surety, some rather Mortgages- 
 nice distinctions require to be taken: For, if A. is the ^^_ 
 mortgagor, B. the surety, and C. the mortgagee, and B. distinction 
 (as surety) merely coveuants to pay the mortgage debt; ^o^^ 
 and C. lends a further sum to A-> — C. will in general according as 
 have the right, as against J5., to tack the further advance a mere cove- 
 to the first mortgage debt {y) : But if A. is the mortgagor, na^toi". oris 
 
 B . the surety, and C . the mortgagee, — and B . not merely mortgagor. . 
 covenants for payment of the debt, but is also a co-mort- 
 gagor icith A. bringing some property of his (B.'s) own 
 
 into the security, — Then if C. lends a further sum to A., 
 
 C. cannot, as against B., tack this further advance to the 
 first mortgage debt, — Soil., Because (in this latter case) 
 
 B. has not merely a right (on payment of the first mort- 
 gage debt) to delivery up of the security, but has 9.11 
 equity of redemption, which is good and valid as against 
 
 C. even (z). 
 
 (3.) A prior mortgagee, who holds also a bond debt, When a bond, 
 cannot tack the bond debt to his mortgage debt, — either as t^ke™— ^ 
 against any intervening incumbrancer or as against an (a) During 
 intervening judgment-creditor or bond creditor, — or even _*g"^g^.^^*°'''^ 
 as against the mortgagor himself, — But can tack it, only (b) Afterdeatb 
 as against the heir or beneficial devisee of the deceased 0* debtor,— 
 mortgagor, — and that only for the purpose of avoiding voiimteers. 
 circuity of action (a) : In other words, a bond debt (or, 
 in fact, any other unsecured debt) cannot be tacked at all, 
 —Scil., during the life of the mortgagor, but only after 
 his death and upon an administration of his assets, — when 
 it will be preferred, of course, to the heir or beneficial 
 devisee of the deceased (b) : But a debt for which judgment 
 had been obtained might be so tacked, — Soil., as against 
 the genera,l creditors of the deceased (c) . 
 
 (i/) Williams v. Owen, 13 Sim. 597 ; NichoUa v. Eidley, 1904, 1 Ch. 
 192. 
 
 (z) Bowlcer v. Bull, 1 Sim. N. S. 29 ; Noyes v. Pollock, 32 Ch. D. 53. 
 (a) Talbot v. Frere, 9 Ch. Div. 568. 
 (*) In re Gregson, 36 Ch. Div. 223. 
 (c) In re Emelfoot, L. E,. 13 Eq. 327. 
 
278 
 
 THE ORIGINALLY EXCLUSIVE JUKISDICTION . 
 
 Tackiug, non- 
 •existent under 
 Yorkshire 
 iBegistries 
 Act, 1S84. 
 
 Actions to 
 
 establish 
 
 priorities. 
 
 Priority may 
 te lost by 
 mortgagee's 
 -iraud ; 
 
 or by his 
 negligence 
 inducing 
 deception. 
 
 (4) It follows from the provisions of the Yorkshire 
 Registries Act, 1884 (d), that (as regards all lands in 
 Yorkshire) the doctrine of tacking is wholly abolished, it 
 having been provided by the Act, that, as between the 
 successive mortgages, — legal or equitable, — and including 
 liens, — the date of registration shall determine the order 
 of priority, excepting in cases of actual fraud; and, for 
 the same or the like reason, there will (now) be no tacking 
 as regards charges which have been created (and duly 
 registered in the Land Registry) under the Land Transfer 
 Act, 1897: Sed qucere. 
 
 (5) In a suit or action to establish priorities as between 
 successive mortgagees, the Court has regard to the doctrine 
 of tacking, to the doctrine of notice, and to every other rele- 
 vant consideration; and therefore, although (as between 
 successive mortgagees) the first in time retains, in general, 
 his priority, yet he may lose his priority — either for 
 fraud (e) or for gross negligence (/) : For example, where 
 a mortgagee of leasehold property lent the lease to the 
 mortgagor, — for the purpose of obtaining a further ad- 
 vance upon it, and on the assurance of the mortgagor 
 that he wvuld inform the lender of the prior charge ; and 
 the mortgagor (breaking faith with the mortgagee) de- 
 posited the lease with his bankers, without informing 
 them of the prior charge, — It was held, that negligence 
 of this sort (on the part of the prior mortgagee), — negli- 
 gence luhich had put it in the power of the mortgagor 
 to commit the fraud, — postponed his mortgage to the 
 security of the bankers (g) . And even a legal mort- 
 gagee may be so postponed, — Scil., by some positive act 
 of the mortgagee conducing directly to the fraud (h), — 
 but not without some such positive act (^) . And note, 
 that, in these actions to establish priorities, a plaintiff, 
 although unsuccessful in establishing his own priority, 
 may (and usually will) get his costs of the action, if the 
 
 [d) 47 & 48 Vict. c. 54. 
 
 (e) Ratdiffe-v. Batnard, L. R. 6 Ch. App. 652. 
 (/) Olirer v. Siiito/i, 1899, 2 Ch. 264. 
 
 (ff) Briggs v. Jone-i, L. R. 10 Eq. 92. 
 (A) Dixon Y. Wiwh, IPOO, 1 Ch. 736. 
 (i) Shropshire Union Sail. v. Heg., L. B. 7 H. L. 496. 
 
MORTGAGES. 279 
 
 proceedings therein have enured for 'the benefit of the 
 other mortgagees, and some proceedings of the sort were 
 absolutely necessary to be taken by some one (Ic) . 
 
 And (6) A solicitor is usually liable for negligence, Solicitor's 
 i. J- • ■ i. /7\ • negligence,— 
 
 in not discovering a mesne or prior mortgage [1), — or in effect of. 
 
 not seeing that the security which he takes is a sufficient 
 security (m) . And if he take a cheque in payment, it is 
 negligence in him, to part with the deeds before the cheque 
 is cashed (n), — Scil., in the absence of any specific au- 
 thority to do so; and a tender by cheque, where the solici- 
 tor's authority is only to receive payment in cash, is not 
 to be accepted. And,, for any such negligence by a 
 solicitor, the remedy may occasionally be summary (o) ; 
 but, far more usually, the formal remedy by action is 
 resorted to, — especially when it is sought to recover 
 damages for the negligence (as distinguished from re- 
 quiring the solicitor to merely make good some defalca- 
 tion or the like (p)). 
 
 III. The Consolidation of Mortgages. — As regards all ConsoUdation 
 mortgages made prior to January 1, 1882, the general ^T* ^^^^^' 
 rule in equity was, that (both in suits for foreclosure mustradeem 
 and in suits for redemption) the mortgagee could con- ««themort- 
 solidate a mortgage on A. and a mortgage on B., and the mortgagee 
 insist on being paid both mortgages or neither, — that is, toldsonhis 
 could always "consolidate" these two mortgages, — as P™P®"y- 
 against the original mortgagor, and also as against the 
 trustee in the bankruptcy of that mortgagor (g), and also 
 as against any other assignee of the mortgagor, who was 
 an assignee of both A . and B . (r) . But where the mort- 
 gagor's assignee was of A. only, or was of B. only, the 
 mortgagee could, as against that assignee, consolidate 
 only if both the mortgages had united in him (the mort- 
 
 (k) Batten v. Dartmouth Commissioners, 45 Ch. Div. 612. 
 \T) In re Bangar's Trusts, 41 Ch. Div. 178. 
 im) Boohy v. Watson, 39 Ch. D. 178. 
 («) Tape V. Westacot, 1894, 1 Q. B. 272. 
 (o) Dixon V. Williamson, 4 De Or. & J. 508. 
 (p) Marsh v. Joseph, 1897. 1 Ch. 213. 
 {}) Sel/iy T. Pomfret, 1 J. & H. 336. 
 
 \r) Vint y. Fadgett, 2 De G. & J. 611 ; Tledge i. White, 1899, A. 0. 
 187. 
 
280 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Consolidation, 
 — abolition of, 
 under Convey- 
 ancing Act, 
 1881. 
 
 Consolidation, 
 — ^leaning of 
 the Courts 
 against. 
 
 gagee) before the date of the exeeution of the assign- 
 ment (s), and not after that date: Also, there never was 
 any right of consolidation, either (1.) where there had 
 been no default (^); or (2.) where one of the mortgages 
 had ceased to exist (w), — or was not yet existing '(a;). 
 
 And, now, under the Conveyancing Act, 1881 (44 & 
 46 Vict. c. 41), s. 17, — unless the effect of the Act is 
 expressly excluded or varied {y), — a mortgagor, as regards 
 mortgages made (or one of which is made) on or after 
 the 1st January, 1882, if he seek to redeem any one mort- 
 gage, is entitled to do so, without paying any money due 
 under any s.eparate mortgage, made by him (or by any 
 person through whom he claims) on property other than 
 that comprised in the mortgage which he seeks to redeem; 
 and, as regards the costs and charges of the mortgagee 
 (being costs and charges which he is entitled to add to his 
 security) these also will not, now, be consolidated, — ex- 
 cepting where (and so far as) the principal and interest 
 may be consolidated (2). 
 
 Even before the 1st January, 1882, the Courts had 
 begun to regard with disfavour the doctrine of the con- 
 solidation of mortgages (a) ; and since that date, when 
 a case comes before the Court to which the provisions 
 of the Act of 1881 are inapplicable, the Court inclines 
 very strongly against the doctrine, — and will (if, on any 
 decent pretext, it can) decide against the right to con- 
 solidate, — on the pretext {e.g.), that the mortgagors 
 were distinct persons originally, and only latterly became 
 one and the same person (6): However, notwithstanding 
 all that, the right to consolidate (which is often a valuable 
 one for mortgagees)' may be diversely preserved, — either 
 by uniformly (in every mortgage) excluding the provi- 
 sions of the Act of 1881, — which is the simplest thing 
 to do, — or else, on everj^ occasion of a new mortgage, 
 
 (s) Karter v. Coleman, 19 Ch. D. 630. 
 
 (1!) Cummins v. Fletcher, li Ch. Div. 699. 
 
 (e() In re Raggett, 16 Ch. Div. 117. 
 
 (x) Jennings v. Jordan, 6 App. Ca. 698. 
 
 {y) Hughes v. Britannia Society, 1906, 2 Ch. 607. 
 
 {z) De Caux v. Skipper, 31 Ch. Div. 635. 
 
 (a) Saker v. Gray, 1 Ch. D. 491. 
 
 (i) Sharp v. Richards, 1909, 1 Ch. 109. 
 
MORTGAGES. 281 
 
 obtaining a transfer of (and expressly, for this purpose, 
 keeping alive) the old securities: 
 
 • And here it is to be observed, that where real and per- No compulsory 
 sonal estates are mortgaged together, and the mortgagor o^e*^^y°f °* 
 dies (leaving ^ will of personalty but intestate as to his the mortgaged 
 real estate), and the mortgagee enters into possession, — properties. 
 The executrix of the mortgagor is entitled to redeem the 
 whole of the mortgaged piroperty, even although the mort- 
 gagee may insist that her only right is to redeem "the 
 personal estate in mortgage, — Scil., because she (the 
 executrix) cannot insist on redeeming the personal estate 
 Separately, her right {and her duty) being to redeem the 
 whole, subject to the equities of the persons interested (c) : 
 In other words, the rule still is, " all or none," where j^ou 
 come- to redeem. 
 
 Equity having determined that the mortgagor should Special 
 be relievable on payment of principal interest and costs, remedies of 
 it was only just, that (after a fair and reasonable time (a) fote- ' 
 given to the mortgagor to discharge the debt) he should closure, 
 be foreclosed his equity of redemption: Which remedy 
 by foreclosure is in respect of the mortgagor's default, 
 — and is therefore availa^ble, only after default, — i.e., 
 after the legal right of redemption is gone (d) : And, 
 nota bene, the remedy is not available at all against the 
 crown, in respect of mortgaged estates which have 
 escheated to the crown (e)); but (all the same) the crown, 
 acquiring title by escheat, takes subject to the mort- 
 gage (/). 
 
 In the action of foreclosure, when the plaintiff is a first Foreclosure 
 mortgagee, he makes all the subsequent mortgagees (in- ^^t'i^e'aE 
 eluding even debenture holders (gf)) co-defendants with and time for; 
 the mortgagor, — there being no piecemeal foreclosure, 
 nor piecemeal redemption, save by consent (A) . An inter- 
 
 (c) Sail V. Meward, 32 Ch. Div. 430. 
 
 {d) Zislev. Reeve, 1902, 1 Ch. 63 ; TurneWs case, 1908, 2 Ch. 62. 
 
 \e) Ztitwich's case, 2 Att. 223. 
 
 (/) Beevev. Att.-Gen., 2 Atk. 223. 
 
 {g) WaUace v. Ecershed, 1899, ICh. 891. 
 
 (/i) Caddiek v. Cooke, 32 Beav. 70. 
 
282 
 
 THE ORIGINALLY EXCLUSIVE JUHISDICTION . 
 
 mediate mortgagee also is entitled to commence the action, 
 — 8,cil., against the mortgagor and all mortgagees sub- 
 sequent to himself (i) ; and in this action, he usually 
 oHers to redeem any mortgagees prior to himself (whom, 
 for this purpose, he makes parties to the action): The 
 action for foreclosure, where the mortgagor is bankrupt, 
 may be brought in the Chancery Division, — although the 
 remedy may also (in such a case) be obtained in the 
 Bankruptcy Division (fc). 
 
 and judg- 
 ment in. 
 
 The judgment for foreclosure directs the necessary 
 account, to ascertain what is due to the plaintiff-mort- 
 gagee, — giving any special directions, where there are 
 special circumstances which will affect the account; and 
 the judgment directs foreclosure, in case of failure to 
 pay the amount which (on the account) shall be found 
 due : And, nota bene, the mortgagor may insist on the 
 account being taken, although the taking thereof may 
 be merely vexatious; but the Court may (in its discre- 
 tion) stay the account (l), — with liberty to apply. If 
 the mortgagor should have commenced an action to re- 
 deem the mortgagee, and he should eventually fail to 
 redeem, his action will be dismissed with costs, — and the 
 dismissal operates (but in the case of legal mortgages 
 only) as a complete foreclosure (twJ. 
 
 Successive re- 
 demptions, — 
 complications 
 (and surprises) 
 in workmg 
 out the fore- 
 closure judg- 
 ment. 
 
 The working out of the foreclosure judgment, — in cases 
 of complication, — is usually full of surprises: Thus, in 
 Titley v. Davies (w), where three estates were mortgaged 
 to S.; and afterwards one of them was mortgaged to the 
 plaintiff T.; and then another of them was sold to P.; 
 and then the third one was mortgaged to the defendant 
 D.,— The Court said, (1) Tlmt T. could redeem S.,— and 
 thereafter hold all the three estates against both P. and 
 D.; and (2) That P. could redeem T., — and thereafter 
 not only hold his own purchase free of redemption, but 
 also require D. to redeem him (or else be foreclosed) as 
 regards the other two properties. And in Bugden v. 
 
 (i) Greennugh v. Littler. IS Ch. Div. 93. 
 
 \k) Ex parte Fletcher, 10 Ch. Div. 610. 
 
 {I) Exchange, ^c. Ltd. v. Land Financiers, 34 Ch. D. 195. 
 
 (m) Marshall v. Shrewshury, L. E. 10 Ch. App. 250. 
 
 («) 2 T. & C. C. C. 399. 
 
MORTGAGES. 283 
 
 Bignold (o), there was the like sort of surprise, in a case 
 of the like complication. Also, in Flint v. Howard (p), 
 where two estates were mortgaged to the defendant H.; 
 and afterwards one of them was mortgaged to the plaintiff 
 F.; and then the other was mortgaged to the defendant 
 H.; and the plaintiff F. (as regards the estate in mort- 
 gage to him) foreclosed the mortgagor, — and claimed to 
 redeem the defendant H., — The Court said, (1) That F. 
 could redeem H. (his first mortgage), — ^and thereafter 
 hold the foreclosed estate free of redemption, and at the 
 same time require H. (in respect of H.'e second mortgage) 
 to redeem him (or else be foreclosed) as regards the other 
 of the two estates, — but H. was to pay only (for such 
 redemption) a due and rateable proportion of the aggre- 
 gate mortgage debt (the proportion to be ascertained on 
 the basis of the relative values of the two estates) . 
 
 The remedy of a debenture holder is, usually (upon a Debenture 
 declaration of charge first made (q)) the appointment thei/reinedy. 
 of a receiver (r), and sometimes of a manager (s); but 
 he may also (in a proper case) have a winding-up order(i), 
 or a sale of the undertaking (m), — but not if the company 
 is a school (x), or is a Tramway Company (y), or a Water- 
 works Company (z), or a public company generally, — at 
 least, in general (a) . 
 
 A mortgagee being (since the Judicature Acts) entitled Judgment for 
 to combine in one action his right to foreclosure with his l^dnerronal 
 right to a personal, judgment on the mortgagor's covenant judgment for 
 (or bond) for payment of the debt, — so much so that d^^t'^^m?'' 
 (if he bring two actions instead of one action) he will biuationof. 
 have one of his actions stayed (&), — The form of judg- 
 
 (o) 2 T. & C. C. C. 377. 
 (p) 189.3, 2 Ch. 54. 
 
 (?) Marwick v. Lord Thurlow, 1895, 1 Ch. 776. 
 (r) In re H. Found # Co., 42 Ch. Div. 402. 
 (s) Leas Hotel case. 1902, 1 Ch. 332. 
 . (/) Sadler v. Warley, 1894, 2 Ch. 170. 
 (m) Blias V. Oxygen Co., 1897, 1 Ch. 611. 
 {x) Sornsey District Cotmcil V. Smith, 1897, 1 Ch. 843. 
 ly) Marshall v. South Staffordshire Tramway Co., 1«95, 2 Ch. 36. 
 (z) Blaker \. Herts Waterworks, 41 Ch. D. 399. 
 {a) Central Ontario Mailway case, 1905, A. C. 576. 
 (5) Williams v. Sunt, 1905, 1 K. B. 512. 
 
284 
 
 .THE OKIGINALLY EXCLUSIVE JURISDICTION. 
 
 ment (Scil., against the mortgagor who has covenanted to 
 pay the debt, — but not against any mere transferee of 
 the equity of redemption (c)), is as follows: — 
 
 Firstly, if the amount of the mortgage debt is either 
 proved admitted or agreed at the trial or hearing, the 
 plaintiff recovers against the defendant the debt, and also 
 so much of his taxed costs of the action as would have 
 been incurred if the action had been brought for such pay- 
 ment only, — the judgment carrying interest at the rate 
 of 4 per cent, per annum (d). 
 
 Secondly, if the amount of the mortgage debt is not 
 proved admitted or agreed at the trial or hearing, an 
 account is taken of what is due to the 'plaintiff for principal 
 and interest under the covenant to pay; and the plaintiff 
 recovers against the defendant the amount which shall be 
 certified to be due to him on taking that account, and also 
 so much of his taxed costs as would have been incurred 
 if the action had been brought for payment only: And, 
 then, — 
 
 Thirdly, whether the amount of the mortgage debt is 
 or is not proved admitted or agreed at the trial or hearing, 
 the judgment proceeds to direct an account of what is 
 due to the plaintiff under and by virtue of his mortgage 
 security and for his taxed costs of the action; and in taking 
 such account, what (if anything) the plaintiff shall have 
 received from the defendant under the personal judgment 
 is to be deducted, and the balance due to the plaintiff is to 
 be certified, with interest to be computed at the rate re- 
 served by the mortgage deed (e) ; and where the mort- 
 gagee is in possession at the date of the foreclosure judg- 
 ment, the account directed to be taken will extend to the 
 rents received by him (subject to all "just allowances" 
 for his outlay or expenditure on the mortgaged property) : 
 
 The defendant is usually allowed one month for pay- 
 ment under the personal judgment, and six months for 
 
 (c) In re Errington, 1894, 1 Q. B. 11. 
 
 \d) Ecommic Life t. Usborne, 1902, A. C. 147. 
 
 («) Economic Life v. Usborne, supra. 
 
MORTGAGES . 285 
 
 iredemption under the foreclosure judgment: And if any 
 rents shall have been received by the mortgagee after the 
 certificate of the amount due, and before (/) (but not 
 after (g)) the day which (by the certificate) is fixed for 
 redemption, a new day for redemption must be fixed, — 
 and a new (supplementary) account taken of what is due; 
 but the necessity for that supplementary .account may 
 sometimes be obviated (h) . 
 
 Before the statute 15 & 16 Vict. c. 86, equity refused, (b) Sale,— 
 in general, to decree a sale against the will of the mort- m gy order 
 gagor; but (under that statute, s. 48) the Court of Chan- of the Court: 
 eery was enabled, at the trial, to direct a sale of the mort- 
 Igaged property instead of a foreclosure thereof (i) : And, 
 now, by the Conveyancing Act, 1881, s. 25, the sale may 
 be directed even upon an interlocutory application (Jc), 
 — and either in a foreclosure or in a redemption action (l) ; 
 and (when there are successive mortgages) without Y>^'e- 
 viously determining the priorities of the incumbrancers. 
 
 A power to sell the mortgaged hereditaments is also Or, (2) Under 
 usually inserted in the mortgage deed itself; and the con- ^^emort-^ 
 currence of the mortgagor in the sale is not (in such a case) gage deed, 
 necessary to perfect the title of the purchaser (m) . The 
 mortgagee (selling under such an express power) is at 
 liberty to retain to himself his principal interest and 
 costs; and in case the net sale-proceeds are insufiicient to 
 pay the principal interest and costs, the mortgagee may 
 apply the whole of them towards payment of his principal 
 (so as to escape the income tax which would otherwise be 
 payable on the arrears of interest (w)). But a mortgagee, 
 who has obtained an order nisi for foreclosure, can only 
 sell with the leave of the Court (o) ; and if he have ob- 
 tained an order absolute for foreclosure, he cannot after- 
 
 (/) Jenner Fust v. Needham, 32 Ch. Div. 582. 
 
 (g) Rnper's case, 1892, 1 Ch. 54. 
 
 \h) Simtnons v. Blandy, 1897, 1 Ch. 19. 
 
 (t) London and County Banking Co. v. Dover, 11 Ch. Div. 204. 
 
 [k] Woolley v. Caiman, 21 Ch. Div. 169. 
 
 (I) Union Bank of London v. Ingram, 20 Ch. Div. 463. 
 
 (m) Newman v. Selfe, 33 Beav. 522. 
 
 (») Smith V. Law Guarantee, 1904, 2 Ch. 569. 
 
 (o) Stevens v. Theatres, Ltd., 1903, 1 Ch. 867. 
 
286 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 ward's exercise the power of sale at all {p), — although, 
 if he has acquired the equity of redemption by adverse 
 possession only, he may still exercise his power of sale {q) . 
 
 Surplus sale- 
 proceeds, — 
 the title to, 
 and payment 
 of, with inte- 
 rest thereon. 
 
 Where the mortgagee has lawfully and properly exer- 
 cised his power of sale, and there is a surplus of the sale- 
 proceeds, that surplus can only be retained by the selling 
 mortgagee for his own benefit, when he has acquired (by 
 adverse possession) the title to the equity of redemption; 
 and otherwise the surplus must be paid over to the person 
 or persons who (but for the sale) would have been entitled 
 to redeem: And although a mortgagee is not (in general) 
 a trustee for the mortgagor, — and, in particular, is not 
 a trustee for the mortgagor as regards the exercise of the 
 power of sale (r), — and that whether the mortgage is in 
 the ordinary form or is in the form of a trust for sale (s), 
 — Still the mortgagee is a trustee (although a construc- 
 tive trustee only {t)) of the surplus sale-proceeds (if any); 
 and he must exercise great care of that surplus, even when 
 the mortgagor himself is the vendor, and he (the mort- 
 gagee) is merely receiving his mortgage money and re- 
 leasing the property (m) : Also, the mortgagee is liable 
 to pay interest, on the surplus sale-proceeds, at the rate 
 of 4 per cent, from the date of the completion of the 
 [x). 
 
 Surplus sale- 
 prooeeds, 
 erroneous 
 payment of, 
 effect of. 
 
 Where there was a mortgage of leaseholds by A. to B., 
 and the mortgagor (who was a female) afterwards inter- 
 married with C; and C. died, leaving A. surviving; and 
 B. as mortgagee then sold the leaseholds to the plaintiff; 
 and (there being a surplus after satisfying B.'s mortgage 
 debt) the plaintiff paid that surplus toC.'s executors, — A. 
 afterwards compelled the plaintiff to pay the surplus over 
 again to herself (obtaining judgment against him for the 
 
 (jo) Watson v. Maraton, 4 De G. M. & a. 230. 
 
 \q) Johnson v. Mounsey, 11 Ch. D. 285. 
 
 (»■) Warner v. Jacobs', 20 Ch. D. 220. 
 
 («) Locking v. Parker, L. E. 8 Ch. App. 30. 
 
 {t) Thome v. Seard, 1895, A. C. 495. 
 
 (m) West London Bank v Reliance Societi/, 29 Ch. Div. 954. 
 
 (.r) Charles v. Jones, 35 Ch. Div. 644. 
 
MORTGAGES. 287 
 
 amount): Wh6reuJ)on the plain tiff sued C.'s executors, to 
 recover back from them the surplus which had been 
 (erroneously) paid by him to them,— But the Court said, 
 that he was not entitled to recover it {y) . 
 
 If, by the terms of the power of sale contained in the Effect, where 
 mortgage deed, notice to the mortgagor is required to be '^'^^^enT^ 
 given before exercising the power, the mortgagee (who before exer- 
 should sell without giving such notice) would be liable in ol^ife^"^^^ 
 damages to the mortgagor or to his transferee (or 
 " assign ") of the equity of redemption [z) : Usually, 
 however, a bond fi/Cle purchaser from the selling mortgagee 
 is (under the express words of the power) not affected by 
 such notice not having been given, — or, in general, by 
 any other neglect of the selling mortgagee: But, even so, 
 any purchaser may (if he chooses to do so) take the objec- 
 tion that the due notice has not been given (a) ; and if 
 the purcliaser has express notice that the selling mort- 
 gagee has not given the due notice, the purchaser would not 
 be safe in completing (6). Also, the mortgagee, iwhen 
 he is selling bond fide, may sell for the net amount of his 
 mortgage debt (o) . 
 
 The mortgagor (or one or two or more co-mortgagors), 
 may (just like any puisne mortgagee may (d)) lawfully 
 purchase from the mortgagee selling in bond fide exercise 
 of his power of sale (e) ; but the mortgagee who is exer- 
 cising the power of sale may not himself purchase (/), — 
 although, if he should purport to purchase, aod then after- 
 wards should sell to a bond fide purchaser, the- title of the 
 latter will be good, the selling mortga.gee beooming 
 accountable (in such a case) to the mortgagor for the pur- 
 chase-moneys paid by such subsequent purchaser (g) . 
 
 (y) Clare v. Lamb, L. E. 10 C. P. 334. 
 (z) HooU V. Smith, 1 7 Ch. Div. 434. 
 
 (a) Life and Reversionary v. Hand in Sand, 1898, 2 Oh. 230. 
 
 (b) Selwyn v. Gnrjitt, 38 Ch. Div. 273. 
 (s) Melbourne Bank case, 7 App. Ca. 307. 
 \d) Supra, p, 261. 
 
 («) Knmdy t. De Trafford, 1897, A. C. 180. 
 
 (f) Hodgson \. Beans, 1903, 2 Ch. 647. 
 
 (g) Astwoody. Cohbold, 1894, A. C. 150. ' 
 
288 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Or, (3) Under 
 statutory 
 power of sale 
 conferred by 
 Conveyanomg 
 Act, 1881, 
 ss. 19—22. 
 
 Selling mort- 
 gagee,— may 
 leave part of 
 sale-proceeds 
 outstanding. 
 
 By the provisions of th© Conveyancing Act, 1881, 
 ss. 19, 20, 21, and 22, a power of sale has also been ren- 
 dered incident to every mortgage or charge (by deed), — 
 Soil., unless where the deed itself expressly excludes 
 these provisions; but the statutory power of sale is not 
 to be exercised, until either (1) Notice requiring pay- 
 ment of the mortgage money has been given, and has 
 been followed by three months' default {Jv) ; or until (2) 
 Interest is in arrear for two months after becoming due; 
 or until (3) There has been a breach of some provision 
 (other than the covenant to repay) contained in the mort- 
 gage deed or in the Act. 
 
 Where a mortgagee sells under his power of sale, he 
 sometimes leaves part of the purchasermoney outstanding 
 and unpaid; and he may do that well enough, provided 
 he credit the mortgagor with the whole of the purchase- 
 money as actually received (J) : And the unpaid portion 
 of the purchase-moneys is a matter which thereafter 
 concerns only the mortgagee and the purchaser, — the 
 selling mortgagee having a lien therefor on the purchased 
 hereditaments; or, if the unpaid purchase-moneys are 
 secured by a mortgage, the sale and the mortgage are 
 (both of them) entirely good, — being, in fact, distinct 
 transactions. 
 
 Where the selling mortgagee has only the equitable 
 estate, he can convey only the estate which is in him- 
 self (&), — discharged of the equity of redemption, of 
 course; but as regards mortgages of leaseholds, where 
 the mortgage is by demise (leaving the last day, or last 
 two or three days, outstanding), then, under Lord Cran- 
 worth's Act (23 & 24 Vict. c. 145), ss. 15, 16,— wherever 
 that Act is applicable (but not otherwise), — the selling 
 mortgagee can, by the exercise of his statutory power of 
 sale, vest the whole original term of years (including the 
 outstanding day or days) in the purchaser (J) . 
 
 Or, (4) Under When mortgaged property is taken by compulsory 
 Ciause"con- purchase under the provisions of the Lands Clauses Con- 
 solidation Act, 
 
 (A) Barker's case, 1908, 2 Gh. 20. 
 if) Thurston v. Mackeson, L. K. 4 Q,. B. 97. 
 \k) In re Hodson and Howe, 35 Ch. D. fi6S. 
 \j) In re Solomon and Meagher, 40 Ch. D. 508 
 
 Last day 
 outstanding, — 
 conveyance of. 
 
MORTGAGES . 289 
 
 solidation Act, 1845 (or under any special Act incor- i845,— oom- 
 porating' the provisions of that Act), the compensation pensationon 
 moneys go to the mortgagee, including the proportion p^ohase!'^ 
 paid for the goodwill (if any) attaching to the pre- 
 mises (m), — ^assuming always that (and so far as) that 
 goodwill is included in the mortgage (re), and is not a 
 merely personal goodwill (o) : And these compensation 
 moneys are, in general (p), — but not invariably (q), — 
 applicable (after interest in arrear • has been paid, and 
 after all costs paid) in reduction of the principal of the 
 mortgage debt; and when the mortgage is a debenture 
 (covered by a trust deed), the compensation moneys are 
 payable to the trustees of the debenture deed (r) . Simi- 
 larly, where the compensation is payable in respect of the 
 extinction of a public-house licence, that is capital money, 
 — and is to be settled as the house itself was (and remains) 
 settled (s) . 
 
 Where the mortgage deed contains an attornment (c) Distress,— 
 clause (or contains a re-demise), the mortgagee may also for interest, 
 (like a landlord for his rent) distrain upon the mortgaged priacipai. 
 premises (the distrainable articles thereon, whether be- 
 longing to the mortgagor or to any third person (t)), — 
 for the arrears of his interest, — and sometimes even for 
 a large part of his principal, — Provided only that the 
 attornment clause be not fraudulent (m), and provided 
 also that (as against a company which is in course of 
 being wound up), the leave of the- Court for the distress 
 shall have first been obtained (x), — Which leave may, of 
 course, be refused. But an attornment clause must (in 
 general) be registered as a Bill of Sale (y) ; but the 
 attornment clause, although unregistered, effectively 
 creates the relation of landlord and tenant (;::), — only the 
 
 ()») File V. File, 3 Ch. Div. 36. 
 
 («) Clarke y. White, 1899, 1 Ch. 316. 
 
 (o) G"oper v. Melnpolitan Board, 25 Ch. D. 472. 
 
 [p) Thompson v. Hudson, L. E.. 10 Eq. 497. 
 
 [q) Wrigley v. Gill, 190>f, 1 Ch. 165. 
 
 (>■) Law Guarantee T. Mitcham Brewery, 1906, 2 Ch. 98. 
 
 is) In re Bladon, Bando v. F,rter, 1911, W. N. 170. 
 
 (4 Keanley v. Philhps, 11 Q B D. 621. 
 
 (m) Ex parte Jaekson, 14 Ch. Div. 725. 
 
 {x) lee T. Eonndwood Co., 1897, 1 Ch. 373. 
 
 (y) Green v. Marsh, 1892, 2 Q. B. 330. 
 
 {«) In re Willis, 21 Q. B. D. 384 ; Zee v. Soundwood Co., supra. 
 
290 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 tenancy thereby created determines with the death of 
 the mortgagor (a), — or upon a transfer by the mort- 
 gagee (6). And here note, that a creditor obtaining a 
 judgment for his debt and becoming thereafter a tenant 
 by elegit, may distrain, — and may do so without any 
 attornment of the occupying tenant (c) . 
 
 (d) Adminis- A mortgagee (seeing that he is a creditor) may also 
 tration action, commence a creditors' action for the administration of the 
 estate of the mortgagor (where the mortgagor is dead (d)), 
 — and he will (in due course) get paid his mortgage debt 
 in that action pari passu with the unsecured creditors, — 
 valuing his security (or otherwise dealing with it), as 
 explained in the chapter on the Administration of Assets, 
 — where the mortgagor is dead insolvent. 
 
 Mortgagee If the mortgage debt b© secured on real estate, and 
 
 his remedies^ also Collaterally by covenant or bond, the mortgagee may 
 concurrently, pursue all his remedies at the same time; but while the 
 mortgagee may add to the principal moneys owing on his 
 security all his costs charges and expenses (properly in- 
 curred), he cannot do that in his action of deibt or of 
 covenant (e). Every loan implies, of course, a debt, — 
 and (where there is no express covenant to pay) a simple 
 contract debt(/); and if the security ceases or is deter- 
 mined, while the loan (as to any part thereof) remains 
 unpaid, the lender may still have his personal action of 
 debt (or of covenant or assumpsit) for his mortgage debt: 
 Therefore where there was a mortgage of leaseholds :by 
 sub-demise, and the lease (out of which the sub-demise 
 was created) was forfeited by the lessor, — whereby the 
 sub-demise also was compulsorily ended (g), and the 
 security was therefore determined, — The mortgagee was 
 held entitled to sue in debt for his loan (h) : And, con- 
 
 (a) ScoUc V. Collins, 1895, 1 Q. B. 37-7. 
 
 (A) B'own V. Metropolitan Society, 1 Ell. & Bl. 832. 
 
 (c) LUydY. Davies, 2 Exoh. 183. 
 
 {d) Spemley v. Warrison. L. E,. 15 Eq. 16. 
 
 (e) Ex parte Fewings, 25 Ch. Div. 338. 
 
 (/) Jackson V. North Eastern R. C.,7 Cli. D. 739. 
 
 In) Smith V. Great Western R. C, % App. Ca. 165. 
 
 (A) Burrell v. Smith, L. R. 7 Eq. 399. 
 
MORTGAGES. 291 
 
 Tersely, although the personal right of action may have 
 been barred by time, yet the security may itself remain 
 and continue (i) ; but, of course, if the loan has been 
 repaid, the security will be discharged also. 
 
 If the mortgage© obtain full payment on the bond or '' Opening th« 
 covenant (or simple contract), the mortgagor is (by the —what it is, 
 "fact of payment) entitled to a reconveyance of the estate, t^^ ^^^^ ^* 
 
 ij?i •/■! \ 1 -I happens. 
 
 — and loreclosure is (m that case) rendered unnecessary. 
 But if the mortgagee obtains only part payment on the 
 bond or on the covenant (or on the simple contract debt), 
 then he may institute (or go on with) his foreclosure 
 action, and (giving credit in account for what he has 
 received) foreclose for the remainder, — and, of course, he 
 may (in such a case) sell also for the remainder of his 
 debt. ; 
 
 If the mortgagee (not choosing to sell, but electing 
 to foreclose) obtains a foreclosure first, — and then alleges, 
 that the value of the estate is not sufficient to satisfy 
 the mortgage debt, — He is not (in such a case) absolutely 
 precluded from suing on the bond or covenant (or on the 
 simple contract); but (by doing so) he gives to the mort- 
 gagor a renewed right to redeem the estate and to get it 
 back, — Or, in other words, he thereby " opens the fore- 
 closure " [k). If, therefore, the mortgagee (after fore- 
 closure) commence an action against the mortgagor on 
 the bond covenant or simple contract, the mortgagor may 
 counterclaim against him for redemption, — So that, if 
 the mortgagee has so dealt with the estate as to be unable 
 to restore it to the mortgagor, the Court will (or, at 
 least, may) stay the action (Z). Also, generally, a fore- 
 closure decree is almost always liable to be opened, — and 
 .a mortgagor may (for good cause shown) redeem even 
 after foreclosure absolute (m) : Secus, where there has 
 been a sale (in lieu of a foreclosure (w)). 
 
 (i) migill T. Wilkinson, 38 Ch. D. 480. 
 {k) Dyson v. Morris, 1 Ha 413. 
 (l) Pahner v. Bendrie. 27 Beav. 349. 
 (m) Campbell v. Holi/hni, 7 Ch. Div. 166. 
 - (») Lockhart v. Sardy, 9 Beav. 349 ; Tooke v. Wariley, 2 Diek. 785. 
 
 u2 
 
292 
 
 THE ORIGINALLY EXCLUSIVE JUSISDICTION . 
 
 Mortgagor's 
 continuing 
 liability on 
 covenant ; 
 
 and his in- 
 demnity from 
 purchaser, 
 effectuated 
 even as against 
 subsequent, 
 mortgagee. 
 
 The original mortgagor, having expressly covenanted 
 to pay the debt, remains liable, of course, to the original 
 mortgagee on that covenant, even after he has conveyed 
 away his equity of redemption to a purchaser; and (in 
 such a case) the purchaser is not personally liable to the 
 mortgagee on the covenant, — although he may be (and 
 usually is) liable to the mortgagor, on his (the pur- 
 chaser's) own covenant with him, to pay the mortgage 
 debt, and to indemnify the mortgagor from it (o) : And 
 where there is such a covenant of indemnity, if the pur- 
 chaser should (after his purchase) have made a second 
 mortgage on the estate, and the first mortgagee after- 
 wards sues the mortgagor, — The latter (on payment of 
 the mortgage debt) will be entitled to a reconveyance 
 of the mortgaged hereditaments, — and will in that way 
 obtain (even as against the second mortgagee) a security 
 on the mortgaged hereditaments in aid of the covenant 
 of indemnity (p). Also, where a first mortgagee fore- 
 closes (although by consent), a second mortgagee is not 
 prevented thereby from afterwards suing on the mort- 
 gagor's covenant to buy, — and if the mortgagor should 
 meanwhile be dead, and his estate has been distributed,, 
 the second mortgagee may (where there is no equity 
 against him) require the distributees to refund {q) . 
 
 The equity of 
 redemption 
 follows the 
 limitations of 
 the original 
 estate. 
 
 Regarding the proviso for redemption, where the mort- 
 gage is by husband and wife of the wife's estate, — It is a 
 principle of equity, that although the equity of redemp- 
 tion should be reserved to the husband and his heirs, — 
 or to the husband and wife and their heirs, — yet there 
 shall be a resulting trust for the benefit of the wife and 
 her heirs (r): But, of course, the wife may be estopped 
 from claiming recoupment (s); and the intention to alter 
 the previous title may appear on the language of the 
 proviso itself, no express declaration to that effect being 
 required {t). Also, there is, semble, no resulting equity 
 to the wife, in the case of a mortgage of the wife's estate. 
 
 (o) Waring v. Ward, 7 Ves. 332; Mills v. U. 0. Bank, 1911, I Ch. 669. 
 Ip) Kinnairdv. Trollope. 39 Ch. Div. 636. 
 (q) Worthington v. Abbott, 1909, W. N. 2 i8. 
 
 (r) Huntingdon v. Huntingdon, 2 Bro. P. C. 1 ; Sail \. Sail, 1911, 1 Ch. 
 487. 
 
 (s) Clinton v. Hooper, 1 Ves. 173. 
 [t) Janes v. Sanies, 8 Ch. Div. 205. 
 
MORTGAGES. 293 
 
 whero the mortgage is effected under the provisions of 
 e. 39 of the Conveyancing Act, 1881 (tt). 
 
 Where the wife has a charge only on the land, and she Wife'8 
 (on a mortgage by the husband for a debt of the hus- rdease^c. — 
 band's) joins with her husband in releasing that charge, is onlj' quoad. 
 — although the release should be (in terms) absolute, yet 
 it is not absolute, — but (in equity) is construed as being 
 for the purposes only pf the mortgage (x). Also, where 
 the wife's property is a leasehold property, and she assigns 
 it to her husband absolutely, and he simultaneously mort- 
 gages it, — In such a case, the wife's title to the property 
 remains in her, — subject only to the mortgage (y). 
 
 But the terms of the proviso for reconveyance must (sub- Provifio for 
 ject only to that equity) be literally complied with in every ^e ^Sctly" 
 reconveyance by the mortgagee, the danger of reconveying pursued, 
 in any other way being serious (z) ; and, of course, it 
 is by the proviso for redemption (and by that alone), 
 that we ascertain whether there has yet been default by 
 the mortgagor (a) . 
 
 (m) Paget v. Faget, 1898, 1 Ch. 470. 
 
 (a;) Lindo v. Lindo^ 1 Beav. 496. 
 
 (g) Davis Y. Whitehead, 1894, 2 Ch. 133. 
 
 (2) Magnus v. Queensland National Bank, 37 Ch. Div. 466. 
 
 (a) Williams v. Morgan, 1906, 1 Ch. 804. 
 
294 
 
 CHAPTEE XVII. 
 
 OF EQUITABLE MORTGAGES OF EEALTY BY DEPOSIT 
 OF TITLE-DEEDS. 
 
 Deposit of 
 
 title-deeds, 
 
 agreement 
 executed, — 
 is a good 
 equitable 
 mortgage; and 
 is not within 
 the Statute 
 of Frauds. 
 
 If the title-deeds of an estate are deposited by a debtor 
 with his creditor {a), or with some third person on behalf 
 of the creditor (fe), such deposit (whether it be accom- 
 panied with any written memorandum or not), amounts 
 to (and is) a valid mortgage of the estate: That is to 
 say, the deposit is evidence of an agreement for a mort- 
 gage (c) ; and, the agreement being executed by the de- 
 posit (and being no |longer executory), the creditor may 
 sue thereon, — Scil., for the completion of his security by 
 a legal conveyance from the debtor (<^)-. 
 
 The equitable But no such mortgage could, formerly, have been 
 ™o°od^oliylf effected with the wife of the borrower («),— although, 
 an intention to semble, it may now be so effected (/) ; and, of course, 
 mortgage. ^^ intention that the deposit shall operate as a mort- 
 gage, must always be present, — ^for if the deposit be 
 wholly alio intuitu^ it will not create any mortgage (^r) . 
 
 Deposit of 
 receipt for 
 purchase- 
 money, — 
 effect of. 
 
 There may be an equitable mortgage by deposit of 
 the mere receipt for the purchase-money of an estate, — 
 Scil., where the estate has not yet been conveyed to the 
 purchaser, and the receipt specifically refers to the 
 estate {h) ; and on the subsequent completion of the sale, 
 the mortgagee may have tiie conveyance executed to 
 himself. 
 
 {a) Sussel t. Sussel, 1 Bro. C. C. 269. 
 
 (i) Fx parte Coming, 9 Ves. 115. 
 
 (c) JEx parte Wright, 19 Ves. 258. 
 
 \d) Price v. Bury, 2 Drew. 42. 
 
 («) Ex parte Coming, supra. 
 
 if) In re Wallis, 1902, 1 K. B. 719. 
 
 la-) In re Beetham, 18 Q. B. D. 766. 
 
 (A) Ooodwin v. Waghorn, 4 L. J., N. S., 
 
 Ch. 162. 
 
EQUITABLE MOETGAGES BY DEPOSIT. 295 
 
 When freehold land has been registered under the Land Certificate, or 
 Transfer Acts, 1875, 1897, the land certificate is the proper afposiToi^'^ 
 document to deposit («); and the office copy of a regis- case of regis- 
 tered lease, and (for the purpose of any sub-mortgage) 
 the certificate of charge, would (in like manner) be the 
 proper document to deposit (k); and in the case of copy- 
 hold land, the copy of the Court roll would be deposited (I) . 
 But where the property is a church benefice, — and the 
 incumbent is the registered proprietor of the benefioe, — ■ 
 he is expressly disabled from effecting a mortgage by 
 deposit (m), — either because a benefice is not, in general, 
 a mortgageable property at all (n), — or for some other 
 reason not exactly apparent (o) . 
 
 A mortgagee by deposit .is entitled to the remedy of Equitable 
 foreclosure (p) ; but he is also entitled to an order for mortgagee 
 sale (g), — and that, whether there is or is not a written hfs remedy Ty 
 memorandum accompanying the deposit (r) ; and, usually, foreclosure, 
 a sale (and not a foreclosure) is the preferable remedy (s) : 
 But an equitable mortgagee by deposit is not entitled 
 (by virtue merely of his estate) to enter upon the lands, 
 — nor (until there has been an order for sale) to sell them ; 
 nor is he entitled to receive the rents and profits, — 
 although, if the tenant chooses to pay him the accruing 
 rents, he (the tenant) cannot recover back the rents so 
 paid (t) . 
 
 By the order for sale, the sale will, in general, be au- Saie,— 
 thorised one month after the certificate showing the time for. 
 amount of what is due (m) ; but a period of three months 
 after certificate will occasionally be given. Also, after 
 
 (J) SarroMv. Tlmty, IflOI, 2 Ch. 314. 
 
 \K) Ex parte Moss, 3 De Gr. & Sm. 599; 60 & 61 Viot. o. 65, s. 8, 
 snb-8. 6. 
 
 (Z) Ex parte Warner, 19 Ves. 202. 
 
 \m) 60 & 61 Viot. o.'65, s. 15 (ii). 
 
 (») Supra, pp. 235, 236. 
 
 (o) Eiwards-Moss v. Mnrjorihanhs, 7 H. L. Ca. 806. 
 
 \p) Lees V. Fisher, 22 Oh. D. 283. 
 
 (j) York Union Backing Co. v. Artley, 11 Oh. Div. 205. 
 
 ()■) Harrold v. Flentu, s'ip'a. 
 
 (») Neath v. Crealock, L. R. 10 Oh. App. 22. 
 
 \t) Fi«ek V. Tranter, 1905, 1 K. B. 427. 
 
 («) Wade V. Wilson, 22 Ch. Dir. 235. 
 
296 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 how obtained. 
 
 Mortgage 
 by deposit, — 
 registration 
 of," none in 
 Middlesex. 
 
 foreclosure absolute (whether in the case of a legal or in 
 the case of an equitable mortgage), the mortgagee was 
 not (formerly) entitled, in the same action, to recover 
 the possession; but, now, under Order XVIII. Eule 2, 
 in any action for foreclosure, the plaintiff may claim (and 
 obtain) an order against the defendant for delivery of the 
 possession {x) . 
 
 As regards lands in Middlesex, an equitable mortgage 
 by mere deposit need not be (and in fact cannot be) regis- 
 tered in the Middlesex Registry; but as regards lands 
 in Yorkshire, a mortgage by mere deposit can be (and 
 must be) registered in the proper Yorkshire Registry (?/) . 
 
 Deposit of 
 deerJs covers 
 further 
 advances ; 
 
 A mortgage by deposit will cover future advances, — 
 Scil., if such was the agreement when the first advance was 
 made, or if the subsequent advance was, in fact, made on 
 an agreement (express or implied) that the deeds were to 
 remain a security for it as well {z).. 
 
 and carries 
 interest, at 
 4 per cent., 
 usually. 
 
 Deposit of 
 deeds for 
 purpose of 
 
 Ereparing a 
 igal mort- 
 gage. 
 
 A mortgage by deposit carries interest at the rate of £4 
 per cent, {a), — failing any other agreed rate: And it is 
 in fact, the settled rule of equity, to give interest at £4 
 per cent, on all equitable charges whatsoever, where the 
 charge does not expressly provide a different rate, and 
 although the charge should be altogether silent as to any 
 interest whatever being payable (6). 
 
 Where there has been a deposit of title-deeds for the 
 purpose of preparing a legal mortgage, the balance of 
 authority is in favour of the proposition, that such 
 deposit, although for such specific purpose, constitutes 
 (where the money has been actually advanced) a valid 
 interim equitable mortgage, — that interim effect being not 
 inconsistent with the expressed purpose of the deposit of 
 the title-deeds (o), — Secus, if the money is not then 
 
 {x) Thyme V. Sari, 1891, 2 Ch. 79. 
 
 Ijl) KettUwell ^ . Watson, 26 Ch. D. 501. 
 
 (z) James v. Rice, 5 De a. M. & G. 461. 
 
 (a) Ee Kerr's Policy, L. R. 8 Eq. 331. 
 
 (b) Savile v. Brax, 1903, 1 Ch. 781. 
 
 (c) Edge v. Worthington, 1 Cox, 211. 
 
EQUITABLE MORTGAGES BY DEPOSIT. 297 
 
 actua,lly adva'nced (d) : But a mere verbal agreement to Parol agree- 
 deposit the title-deeds does not (without an actual deposit) deposit deeds, 
 constitute a good equitable mortgage, — although such a advSi°ced' 
 mere agreement (if in -writing) would be good without an 
 actual deposit. 
 
 In order to create an equitable mortgage by deposit, it All title-deeds 
 is not necessary that all the title-deeds (or even all the deposited. 
 m,aterial title-deeds) should be deposited, — it being suffi- 
 cient, if the deeds deposited are material to the title, and 
 are proved to have been deposited with the intention of 
 thereby creating a mortgage (e); but there is, of course, 
 great danger in leaving any of the title-deeds outstanding 
 in the mortgagor (/) . Also, an equitable mortgagee who Equitable 
 parts with the title-deeds, and so enables the depositor to ™a°tin*^witii 
 make another equitable mortgage, may be (and usually the title-deeds 
 will be) postponed to such second equitable mortgagee, — *° mortgagor. 
 Soil., Because he has so acted, as to conduce to a fraud being 
 committed (ff) . But in the case of a prior equitable mort- 
 gagee (equally as with a prior legal mortgagee), if it is 
 sought to postpone him, some positive act on his part must 
 be shown (A); and mere negligence will not do(i), — 
 although long and inexcusable neglect may amount to a 
 positive act within the meaning of the rule (fc) : And 
 where A. B. had recently purchased certain lands in fee 
 simple; and he deposited with U. all the title-deeds 
 (except the purchase-deod), and afterwards deposited the 
 purchase-deed with Z., — The Court said, that U. had 
 priority, and that Z. must displace that priority (if he 
 could (Z)). 
 
 Also, an equitable mortgagee by deposit will, in the Equitabic 
 general case, be entitled to priority over a subsequent legal ^f priiSty 
 mortgagee who advances his money with notice (actual or to subsequent 
 
 (d) Worris-v. Wilkinson, 12 Ves. 192. 
 
 («) Laoon v. Allen, 3 Drew, 579 ; Moberta v. Croft, 2 De G-. & J. 1. 
 
 (/) Colyer v. Finch, 5 H. L. Ca. 905. 
 
 (g) Keats v. Phillips, 18 Ch. Div. 660. 
 
 (A) Adsetts V. Hives, 33 Beav. 52. 
 
 (i) PeatY. Clayton, 1906, 1 Ch. 659. 
 
 {k) Farrand v. Yorkshire Bank, 40 Ch. Div. 182. 
 
 ll) Roberts v. Croft, 24 Beav. 223. 
 
298 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 legal mort- constructive) of the deposit: Also, any one who purchases 
 notice. from a mortgagee (selling under his power of sale), is 
 
 deemed to have notice, — because he necessarily has notice, — 
 of any " sub-mortgage by deposit " which the selling mort- 
 gagee may have made. But mere incaution on the part 
 of the subsequent legal mortgagee (or purchaser) will not 
 postpone him to the prior equitable mortgage of which 
 Legal mort- he has, in fact, no notice, — Because a legal mortgagee or 
 poSp^oned to purchaser is not to be postponed, unless the so-called want 
 prior equitable of caution on his part amounts to fraud, — or to gross 
 
 mortgagee, i± ,. •i*f*i/\T-»i/-N -ii 
 
 former haa negligence evidencing fraud {m) . But the (Jourt will not 
 made botrnfide ][mpu(;Q ^y^j guclj gross negligence to the mortgagee, if he 
 the deeds. has bona fide inquired for the deeds, and a reasonable 
 excuse has been given for the non-delivery of them (ra), — 
 but only if he makes no inquiry at all, or makes a mere 
 vague (and purposeless) inquiry, which is, in fact, no 
 inquiry (o) . 
 
 Where a man's solicitor (being fraudulently disposed) 
 sent the mortgagee a parcel of deeds, and represented 
 that the parcel contained the deeds, when it contained, in 
 fact, only some of the deeds, — That mortgagee was not 
 postponed to a subsequent equitable mortgagee by deposit 
 of the other deeds (p) . Also, where a prior legal mort- 
 gagee left all the title-deeds with his mortgagor, — 
 Whereby the mortgagor was left in a position to mortgage 
 again (and, being fraudulently disposed, he did mortgage 
 again) by purported first legal mortgage in fee simple, — 
 The first legal mortgagee was not only postponed to that 
 purported first legal mortgagee, but was postponed also 
 to a further subsequent equitable mortgagee who had in 
 consequence relied on the purported first mortgagee as 
 being the only first mortgagee (g) . 
 
 Equity against Where the contest is between two equities simply, the 
 where'the ^''^t in time will (ordinarily) prevail, — and especially so, 
 trustee is in where the legal estate is holden by a trustee for the equity 
 
 (m) OHmr v. Sinton, 1899, 2 Ch. 264. 
 (n) Hewitt T. Loosemore, 9 Hare, 458. 
 (o) Oliver v. Sinton, sunra. 
 (p) Hunt V. Elmers, 2 Dp G. F. & J. 578. 
 (?) Clarke^. Palmer, 21 Ch. Div. 124. 
 
EQUITABLE MORTGAGES BY DEPOSIT. 299 
 
 which is first in date (r), — ^assuming always, of course, default (aa to 
 that there has been no positive act on the part of the possessioD. of 
 person entitled to the first equity to mislead the person deeds),— 
 entitled to the second equity, and assuming also that the ^^^''^■ 
 trustee on his part has not neglected his duty to get into 
 his own possession in the first instance all the deeds 
 relative to the constitution of his full legal title as 
 trustee (s) . But where a first mortgagee, without any First mort- 
 fraudulent intention, purposely left the title-deeds with gagee's agent^ 
 the mortgagor, in order that he (the mortgagor) might exceedin^the 
 make one specified mortgage only, or two mortgages of a 1"™*^ ofhis 
 specified aggregate amount only, — and the mortgagor, in effect on first 
 excess of his authority, made several mortgages (instead mortgagee's 
 of only one mortgage (i)), or grossly exceeded the '^^"^'^ ^' 
 specified aggregate amount (m), — The Court postponed 
 the first mortgagee, — Scil., because he had made the mort- 
 gagor his agent to borrow, and was left to his remedy 
 against the agent. 
 
 (r) Burgis v. Constantine, 1909, 2 K. B. 484. 
 
 (s) Walker v. Linom, 1907, 2 Ch. 104. 
 
 (<) Perry-Herrick v. Attuooii, 25 Beav. 205. 
 
 («) Bncklesby t. Temperance Society, 1895, A. 0. 173. 
 
300 
 
 CHAPTER XVIII. 
 
 OF PLEDGES AND MORTGAGES OF CHATTELS. 
 
 Differences 
 between a 
 
 and a pledge 
 of chattels : 
 
 Sect. I. Pledges and Mortgages, generally. 
 Sect. II. Bills of Sale of Chattels, generally. 
 Sect. III. Mortgages of British Vessels. 
 
 A MORTGAGE of personal chattels is a transfer (subject to 
 redemption) of the ownership of the chattels, the posses- 
 sion remaining with the mortgagor; but a pledge of per- 
 sonal chattels passes the immediate possession to the 
 pledgee, together with only a special property in the 
 chattels, — or with only a special ownership of them. 
 
 (a) In their 
 own nature. 
 
 (b) As regards 
 remedies : 
 (aa) Pledgors 
 and pledgees 
 
 Sect. I. Pledges and Mortgages, generally. 
 
 In the case of a pledge, although a time for the re- 
 demption be fixed by the contract, yet the pledgor may 
 redeem afterwards, — Scil., within a reasonable time; and 
 if no time is fixed for the redemption, th© pledgor (unless 
 he is sooner called upon by the pledgee) has his whole 
 life to redeem, — and his personal representatives, in case 
 of his death, may redeem (a) ; and his assignee may also 
 redeem (b), — while and so long as the pledge still remains 
 unsold hj the pledgee. 
 
 The remedy of the pledgor is, in the general case, at 
 law; and it is only when any special reason exists for his 
 so doing, that he comes into equity (c) . Also, after a valid 
 tender of the amount due, the pledgor may have detinue, 
 ■ — differently from a mortgagor, who can only (in such a 
 case) redeem {d), the tender staying, in his case, the 
 
 (a) Kemp v. Westlrook, 1 Ves. Sr. 278. 
 
 (b) Franklin v. Neate, 13 Mee. & W. 481. 
 
 (c) JV.S. W. Sankv. O'Connor, 14 App. Ca. 273. 
 (rf) Bourke v. Robinson, 1911, W. N. 36. 
 
OF PLEDGES AND MORTGAGES OF CHATTELS . 301 
 
 further running of the interest, and entitling him to have 
 a re-conveyance (d) . 
 
 As regards the pledgee, although he may (in a proper 
 case) take proceedings in equity to sell the pledge (e), still 
 he may (after the time for redemption has passed, and 
 upon due notice given to the pledgor) sell the pledge with- 
 out any necessity for first obtaining an order for sale (/) ; 
 but the pledgee ought not to sell, without first demand- 
 ing repayment of the money lent {g) . 
 
 Where A. has obtained a judgment against B., andB.'is 
 furniture is taken in execution on the judgment, — and 
 (under the sale by the sheriS) is assigned to A.; and B.'s 
 friends buy it back from A., and leave it in (or restore it 
 to) the possession of B., — If B. should afterwards con- 
 tinue in possession of the furniture for six years or more, 
 and then die, his possession of the furniture has not been 
 adverse; and the friends who purchased from A. (and not 
 the executors of B.) will continue entitled to it(h). 
 
 In the case of a mortgage (as distinguished from a. (bb) Mort- 
 pledge) of personal chattels (equally as in the case of a mra^gagees. 
 mortgage of land), there exists after default, — i.e., after 
 the legal right of redemption is lost, — an equity of re- 
 demption, which may be asserted by the mortgagor, if he 
 brings his action to redeem within a reasonable time (i) . 
 And, as regards the mortgagee, there is not (in the case 
 of mortgages of personalty) any necessity, in general, to 
 bring an action of foreclosure or for a sale, — the mort- 
 gagee being entitled (on due notice) to sell the pro- 
 perty (k) ; and the notice may (in a proper case) be given 
 by advertisement. But when there are exceptional cir- 
 cumstances, — as when (e.g.) the equitable mortgage is of 
 shares, and the debt itself is barred by lapse of time, — 
 
 {d) Rourke v. Robinson, 1911, W. N. 35. 
 \e) Carter v. Wake, i Ch. Div. 6n5. 
 (/) Jones Y. Marshall. 24 U. B. D. 269. 
 Q) France v. Clark, 26 Ch. Div. 257. 
 (A) HdKardsY. Clai/, 28 Beav. 145. 
 (j) Kemp V. Westbrook, 1 Ves. Sr. 278. 
 [k) Severges t. Sandeman, 1902, 1 Ch. 679. 
 
302 
 
 THE OEIGINALLY EXCLUSIVE JURISDICTION. 
 
 Eeversionary 
 personal 
 estate, succes- 
 sively mort- 
 gaged,— appli- 
 cation of, 
 when the 
 reversion falls 
 in, before the 
 first mortgagee 
 has sold. 
 
 The mortg'agee is justified (in such a case) in coming into 
 equity, for an order to enforce his security by foreclosure 
 or sale (Z): Also, there is, apparently, no statute of limi- 
 tations applicable to the action (m) . 
 
 Where the personal property comprised in the mortg'age 
 is a reversion, and the reversion falls into possession before 
 the mortgagee has actually exercised his power of sale, — 
 The trustees are not bound to, — nor ought they to, — pay 
 over the entire reversion to the mortgagee (when it is, 
 and usually it is, in excess of the amount due on the mort- 
 gage) ; but the proper course is, for the trustees to pay to the 
 mortgagee the amount only of his mortgage debt, retain- 
 ing (and eventually paying over to the mortgagor, — or 
 to and among the subsequent mortgagees (if any)), — the 
 surplus (n) . 
 
 Effect of 
 transferring 
 
 If the pledgee should, before condition broken, deliver 
 over the pledge to a purchaser or to a sub-pledgee, — In 
 such a case, if the pledge is of a negotiable instrument, 
 the pledgor will be bound (o); but if the pledge is of a 
 non-negotiable instrument, the pledgor will only be bound 
 to the extent of the pledgee's men right, — Wherefore, in 
 such latter case, if the purchaser or sub-pledgee (upon 
 tender to him of the amount due to the original pledgee) 
 should refuse to deliver up the pledge to the pledgor, the 
 pledgor may have detinue against the purchaser or sub- 
 pledgee (p). 
 
 Pledgee, 
 where tricked 
 out of his 
 possession, — 
 effect, where 
 a subsequent 
 adverse 
 pledge. 
 
 Where the pledgee is tricked out of his possession of 
 the pledge, and the pledgor thereafter pledges it to X., 
 the title of X. (assuming that he is a bond fide pledgee) 
 will be good; and (subject to X.'s title) the title of the 
 former pledgee will remain good (or be set up again), 
 as against the pledgor (g), — Sail., because the first 
 
 (I) Lcmdnn and Midland Bank v. Milehell, 1899, 2 Ch. 161. 
 
 (m) Melkrsh v. Brown, 45 Ch. D. 226. 
 
 («) Bockey v. Western, 1898, 1 Ch. 350. 
 
 (o) London Joint Slock Bank v. Simmons, 1892, A, C. 20], 
 
 Ip) Nyherg v. Sai,delaar, 1892, 2 Q. B. 202. 
 
 (}) Babcock v. Lawson, 6 Q. B. D. 284. 
 
OF PLEDGES AND MORTGAGES OF CHATTELS. 303 
 
 pledgee's possession is only momentarily divested by the 
 trick (r) . 
 
 Where a pledgee of securities {e.g. a, bank) has notice of Pledgee,— 
 an act of bankruptcy, committed by the pledgor since ofl^irof"* 
 making the pledge, and a tender of the amount due on the bankruptcy 
 pledge is made to the pledgee after he has had such notice, effeottal"""'" 
 — 'The pledgee is in a very awkward fix, — not knowing regards re- 
 whether to deliver up the pledge or not; and, apparently, piedg^e.^° 
 he is entitled to insist upon getting a valid receipt for 
 the securities which he delivers up, — which receipt the 
 pledgor cannot give (s) . 
 
 As regards further advances, the presumption (as against The pledge 
 the pledgor) is, that if the pledgee advance any further sum future 
 ■of money to the pledgor, the pledge is to be held until the advances 
 subsequent advance (as well as the original debt) is 
 paid(<). Also, it occasionally happens, under (e.g.) the Application of 
 "mutual credit" or "mutual dealings" clause, applic- x"''/^'"®^\^ ^' 
 .able in the case of the mortgagor's bankruptcy (m), that te* another 
 the mortgagee has the right to apply the surplus (after ^®^*- 
 discharging his mortgage debt) in or towards satisfaction 
 -of a subsequent judgment debt (a;), — or even of a sub- 
 sequent simple contract debt (?/), — this right not being 
 a right of tacking {z), — but of retention simply. 
 
 By the provisions of the Factors Act, 1889 (52 & 53 raotorsand 
 Vict. c. 45), — as aided by s. 25 of the Sale of Goods Act, -sales and ' 
 1893 (56 & 67 Vict. c. 71),— persons who are intrusted pMgesby. 
 -with the possession of goods as factors for sale may (al- 
 though they are not the owners of such goods) validly 
 pledge them to hond fide lenders; and bmjers (with a 
 view to sale in the ordinary course of trade) may also 
 -validly pledge such goods, — although the original sellers 
 
 (r) Mocatta v. Bell, 24 Beav. .585. 
 
 [s) PonsfordY. Unif,n Bank, 1906, 2 Ch. 444, followed in McCarthy r. 
 •Capital and Counties Bank, 1911, W. N. 177. 
 (t) Be Mainhray v. Metcalfe, 2 Vern. 691. 
 («) In re Mid-Kent Fruit Factory, 1896, 1 Ch. 567. 
 {x) Spalding v. Thom-psi,rt, 26 Beav 637. 
 (y) In re Haselfoot, L. R. 13 Eq. 327. 
 i(a) C/irUtison v. Bolam, 36 Ch. Div. 223. 
 
304 
 
 THE OEIGINALLY EXCLUSIVE JUEISDICTION . 
 
 should be unpaid. But these provisions do not apply to 
 the case of any mere private individual (miscalled a pur- 
 chaser) buying any specific article for his own use under 
 a hire and purchase agreement {a), — Scil., Because the 
 Acts referred to have relation to dealings in the course of 
 trade only, — that is to say, have relation only to persons 
 who would (or might), ordinarily, employ "mercantile 
 agents": And also because, in a hire and purchase agree- 
 ment, there is really no real purchase, where the so-called 
 purchaser has the option (and he, usually, has the option) of 
 continuing the payment of his instalments (and so keeping 
 the article), or of discontinuing the payment of his instal- 
 ments (and in that case returning the article (6)). 
 
 Stoppage 
 in transitu^ — 
 where a mort- 
 gage mean- 
 while created. 
 
 Where goods are shipped by a vendor, and afterwards 
 the vendor (on account of the bankruptcy of the purchaser) 
 exercises his right of stoppage in transitu ; but a mort- 
 gage or pledge of the goods has, in the meantime, been 
 created, — by indorsement of the Bills of Lading by way 
 of security for an advance to some hona fide mortgagee or 
 pledgee, — In such a case, the mortgage or pledge will be 
 good; and (subject thereto) the title of the unpaid vendor 
 will remain good (c) : And the law would be the same, in 
 the case of an interim hond fide sub-sale {d), or other 
 bond fide sub-contract (e), — Scil., in the case of specific 
 goods; but not also, — or, at least, not invariably so, — in 
 the case of goods sold in bulk, and for successive partial 
 deliveries against successive corresponding payments (/). 
 
 Fraudulent 
 purchase of 
 goods. — 
 disaffirmance 
 of, by unpaid 
 vendor, — 
 legal position, 
 where goods 
 meanwhile 
 pledged. 
 
 On a sale of specific goods to a fraudulent purchaser, 
 the property in the goods passes into the purchaser even 
 before delivery; and if the goods have been delivered 
 also, the vendor has no lien thereon for his unpaid pur- 
 chase-money: But if the unpaid vendor, on discovery of 
 the fraud, disaflirms the contract, — and can re-possess him- 
 
 («) BelhyY. MaWtews, 1895, A. C. 471. 
 (A) Leev. Butler, 1893, 2 Q. B. 318. 
 (c) In re Westxmlhm, 6 B. & Ad. 817. 
 id) In re Knight, 1-3 Ch. D 628. 
 \e) Bdlamy v. I)m:ey, 1891, 3 Ch. 640. 
 (/) Mordaimt Brothers v. British Oil Co. 
 8. 47 of Sale of Goods Act, 1893. 
 
 191 0, 2 K. B. 502 ; and see 
 
OF PLEDGES AND MORTGAGES OF CHATTELS. 305 
 
 self of the goods (as where they have been pledged by 
 the fraudulent purchaser, and the vendor redeems the 
 pledge), — Then, and in such a case (and even if the pur- 
 chaser has meanwhile gone bankrupt), the property in 
 the goods re-vests in the vendor; but if the price for the 
 goods has been partly paid by the purchaser, the vendor 
 must, of course, return the part-payment or part-pay- 
 ments to the purchaser (or to his bankruptcy trustee), ex- 
 cepting that he may set-off against that part-payment 
 (or against those part-payments), the amount paid to 
 redeem the pledge (g) . 
 
 Sect. II. Bills of Sale of Chattels, generally. 
 
 Special statutory provisions, — ^for the protection as well Mortgages 
 of the creditors of the grantor as also (since 1882) of of personal 
 the grantor himself, — have been made (by the Bills of being bills 
 Sale Acts) regarding mortgages of personal chattels, of sale within 
 where they are Bills of Sale,— the Bills of Sale Acts at saieActs"* 
 present in force being the Acts of 1878 {h) and 1882 (i), 1878 and 'iS82. 
 and the first of the two Acts (which is the principal Act) 
 extending not only to bills of sale given by way of mort' 
 gage, but also to bills of sale absolute (fc), — while the 
 second Act extends exclusively to bills of sale given by 
 way of mortgage (Z). 
 
 But it is to be remembered, that neither Act extends 
 to transfers in the ordinary course of business among 
 merchants (w), — nor to the debentures of a company (w), 
 which keeps its own register of mortgages (o), every 
 mortgage by such a company now requiring only to be 
 filed with the registrar of companies within twenty-one 
 days from its date (p), and the time for registration being 
 extendible (q) . 
 
 (g) Tilley v. Botcman, Ltd., 1910, 1 K. B. 745, following In re Eastgate, 
 1905, 1 K. B. 465. 
 
 (/i) 41 & 42 Viet. c. 31. 
 
 (j) 45 & 46 Vict. c. 43. 
 
 {ic) Axhtoii V. Blaekshaw, L. R. 9 Eq. 510. 
 
 [l) Swift V. JPannell, 24 Ch. Div. 210. 
 
 (m) Young V. Curtis, 1905, 2 K. B. 381, 772. 
 
 (m) In re Standard Manufacturing Co., 1891, 1 Ch. 627. 
 
 (o) 8 Edw. VII. c. 69, 8. 100. 
 
 Ip) 8 Edw. VII. 0. 69, 8. 93. 
 
 \q) In re Spiral Globe Co., 1902, 2 Oh. 209. 
 
 S. X 
 
.306' 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Requisite of Under the provisions of the Bills of Sale Acts, the bill 
 
 registration. ^£ ^^^e (whether it be a security for money lent or not) 
 must be registered within seven days of its execution, — 
 and (with it) an af&davit (not to be sworn before the 
 solicitor of the grantee (r)), — stating the execution of, and 
 the true date of, the bill, the residence and occupation 
 of the grantor, and also the residences and occupations 
 of the attesting witnesses; and the execution of it by 
 the grantor must be attested by a solicitor, — Scil., when 
 the bill is by way of absolute gift or assignment (but 
 not when it is by way of security) ; and the bill must be 
 re-registered every five years. 
 
 Sdiedule,— • Also, if the bill of sale is given by way of security, 
 
 and when not. it must contain a schedule specifically enumerating the 
 personal chattels comprised therein; and (in this case) 
 the grantor must not convey as " beneficial otvner " (s), — 
 nor may the document extend to include after-acquired 
 chattels (i), — save chattels in substitution (m) : And the 
 bill must also otherwise be in rigorous accordance with the 
 form prescribed by the Act of 1882 (a;); and, in parti- 
 cular, the consideration for which the bill is given must 
 be truly stated therein, however difficult to state that 
 consideration it may be (y) . But the repayment of the 
 loan (principal and interest) may be lawfully provided 
 for by instalments (z) . 
 
 Non-eompii- Failing compliance with the above specified requisites, 
 prescribed Or with any of them, the bill of sale will be void, — ^As 
 form, effect of . against (1) other duly registered bills of sale; (2) the 
 trustee in bankruptcy of the grantor; and (3) the execu- 
 tion-creditors of the grantor, — and where it is by way of 
 security it will (for such non-compliance) be void even as 
 between the grantor and the grantee themselves (a), — ^and 
 as regards even the covenant for the repayment of the 
 
 (r) BaAer v. Ambrose, 1896, 2 Q. B. 372. , 
 
 (s) Tn rt Barber, 17. Q. B. D. 259. 
 
 (t) Thomas v. Kelly, 13 App. Ca 506. 
 
 (m) Seedr. Bradley, 1894, 1 Q. B. 319. 
 
 (x) Simmons v. Woodward, 1892, A. C. 100. 
 
 \y) Barlow v. Bland, 1897, 1 Q. B. 125. 
 
 («) Eoiefieldy. Provinoial Union Bank, 1910, 2 K. B. 781. 
 
 (o) In re Burdett, 20 Q. B. D. 310. 
 
OF PLEDGES AND MORTGAGES OF CHATTELS. S07 
 
 money lent (6). However, any collateral security (which 
 was otherwise good in itself) would not also be void (c), — 
 nor any assurance of freehold lands (d), — nor any other 
 distinctly severable operative part of the bill (e) . 
 
 By the interpretation clause contained in the Act of Bills of Sale,— 
 1878, Bills of Sale extend to include (besides assignments ^hatare'n^t* 
 properly so called) licences to take possession of personal 
 chattels (/) : But a document, if it is to be a bill of sale, 
 must be an " assuranoe" of some sort (g), — so that a mere 
 receipt for the price of goods sold would not be a bill of 
 sale of the goods referred to therein (Ji) : Also, the Act of Eealisation of 
 1882 expressly provides that the possession of the chattels security. 
 (Scil., for the purpose of realising the security (i)) shall 
 not be taken by the grantee, — unless for one or other of the 
 defaults specified in s. 7 of that Act; nor are the personal 
 chattels to be thereafter removed or sold until five clear 
 days have expired, — the power of sale here referred to 
 being the common law power of sale, — and not the power 
 of sale given to mortgagees by the Conveyancing Act, 
 1881 (fc) . Moreover, the bill of sale (even when completely 
 valid) is no protection of the goods comprised therein 
 against the landlord's right of distress for rent in arrear, 
 • — nor against certain other distresses, — for example, the 
 summary distress for poor-rates (i): 
 
 Also, as regards the trade goods of the grantor com- 
 prised in the bill of sale, the security given by the bill of 
 sale, although a perfectly valid bill of sale and duly 
 registered, is not a protection against the trustee in bank- 
 ruptcy of the grantor, while and so long as the possession 
 
 (A) Davies v. Sees, 17 Q. B. D. 408 ; Smith v. Whiteman, 1909, 2 K. B. 
 437. 
 
 \c) Monetary Advance Co. v. Cuter, 20 Q. B. D. 785. 
 
 (d) Brooke v. Srooke, 1894, 2 Ch. 600. 
 
 (e) In re Isaacson, 1895, 1 Q. B. 333, 
 
 (/) lord's Trustee's case, 1909, A. C. 109. 
 
 (^) Newlovev. Shrewshiry. 21 Q. B. D. 41. 
 
 (h) Charlesu-orth v. Mills, 1892, A. C. 231. 
 
 (i) Hx parte Wickens, 1898. 1 Q. B. 543. 
 
 {Jc) Cahert v. Thomas, ^9 Q. B. D. 204. 
 
 {Tj In re Marriage Neam J Co., 1896, 2 Ch. 693.- 
 
 x2 
 
MS 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 also of these goods has not be©n taken by the grantee (m), 
 — which it can hardly ever be. 
 
 Possession Generally, where the bill of sale is of such a character, 
 
 dispenses with that possession can be (and actually is) taken thereunder, 
 (registration, immediately on the execution thereof, — and is retained 
 thereafter, — ^no^ registration of the bill is required at 
 aU.(n): But the registration might sometimes, — for ex- 
 ample, in the case of a post-nuptial marriage settlement, — 
 be desirable (although unnecessary), — Scil., because, under 
 s. 20 of the principal Act (the registration being once 
 duly made and afterwards duly maintained), the personal 
 chattels comprised in such a settlement are not in the 
 "order and disposition " of the grantor within the mean- 
 ing of the Bankruptcy Act, 1883, — always assuming that 
 these personal chattels are not trade-goods. 
 
 ^Vhat doou- Also, no registration is required of a wharfinger's war- 
 
 iw re^ i^lre^"^* rant deposited by way of pledge, or of a delivery order 
 tion,— asnot for goods at a warehouse. 
 
 beiu^ bUls of 
 
 And, as regards hiring agreements, firstly, if they are 
 bond fide, they are not bills of sale at all (o) ; but, 
 secondly, if they are only colourably hiring agreements, 
 they must be registered (p) : That is to say: — Firstly, 
 if there is first a real and genuine bond fide sale, and 
 then the purchaser lets the goods on hire, the letting is 
 good without registration (q) ; but. Secondly, if the pur- 
 ported prior sale is not a real sale, — or the subsequent pur- 
 ported letting on hire is in and by (or is evidenced by) the 
 document itself by which the prior purported sale pur- 
 ports to be effected, — in that case, the letting is not good 
 without re-registration (r) . 
 
 As regards building agreements, where there is (and 
 usually there is) a clause inserted in the agreement, where- 
 
 (m) In re Ginger, 1897, 2 Q. B. 461. 
 
 (») Sopldns T. Gudgeon, 1906, 1 K. B. 690. 
 
 \o) Orawour v. Salter, 18 Ch. Div. 30. 
 
 (p) Mellor's Trustee v. Maas, 1905, A. C. 102. 
 
 (q) Yorkshire Rail. Wagons y. Maclure, 21 Ch. D. 309. 
 
 (r) Beckett v. Tower Assets Co., 1891, 1 Q. B. 638. 
 
OF PLEDGES AND MORTGAGES OF CHATTELS. 3095 
 
 hy the building materials become the property of the 
 building owner, upon the building contractor's failure toi 
 complete the contract, — That clause (or the agreement 
 containing it) is not, in general, a biU of sale of the- 
 materials, so as to require registration (s), — not even 
 where (upon the words of the clause) the materials are- 
 made to vest in the building owner immediately they are- 
 brought on the ground (t). But the materials, so far as 
 remaining unbuilt in, would be (or might be) within the 
 order and disposition clause (s. 44) of the Bankruptcy- 
 Act, 1883 (m). 
 
 Sect. III. Mortgages of British Vessels. 
 
 These mortgages are to be in the form prescribed in the Mortgages of 
 Merchant Shipping Act, 1894 (x), s. 31,— and are to be =•"?=• 
 registered by the Registrar of Shipping; and such regis- 
 tration supersedes the necessity of any other registration. 
 Also, successive registered mortgages rank (as between 
 themselves) according to the dates of their respective re- 
 gistrations, — and are not affected by the " order and dis- 
 position " clause of the Bankruptcy Act, 1883, s. 44. 
 
 These mortgages are also transferred in the prescribed 
 manner — ^and are discharged (and the registration thereof 
 vacated {y)) in the prescribed manner; and where the 
 mortgagee's interest is transmitted by death, marriage, or 
 the like, a declaration of such transmission (signed by the 
 transmittee) is to be registered. 
 
 The registered mortgagee has an absolute power of sale; Potrers of 
 and he may also (at any time after default) take posses- re^tered 
 
 sion of, and also use {z), the ship: But until the mortgagee 
 takes possession, the mortgagor remains the owner (a),— 
 and may therefore use the ship, — not impairing (or un- 
 
 (s) Earfs case, 1903, 1 Ch. 690. 
 
 {t) Reeves v. Barlow, 12 Q. B. D. 436. 
 
 \u) In re WeibMng, 1902, 1 K. B. 713. 
 
 \x) 57 & 58 Vict. c. 60. 
 
 (y) Brandy. Bromnhall, 1906, 1 K. B. 571. 
 
 {z) Be Mttttos V. Gibson, 1 Jo. & H. 79. 
 
 (ffl) The Eeather Bell, 1901, P. 272. 
 
 mortgagee. 
 
310 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Unregistered 
 mortgages, — 
 validity of. 
 
 Unregistered 
 equities, — 
 enforce- 
 ment of. 
 
 duly endangering) the security (6), — and will be entitled 
 also to the freight, which may be earned before possession 
 taken by the mortgagee (c), although not to the subse- 
 quently earned freight: But the costs of all necessary 
 repairs (for which, when executed abroad, the vessel is 
 subject to a lien) take precedence of the mortgage (d). 
 
 The mortgage of a ship, although it should be unregis- 
 tered, will be good as between the mortgagor and the 
 mortgagee; and, by s. 57 of the Act of 1894, re-enacting 
 (in this particular) the like provision contained in the 
 Merchant Shipping Act, 1862 (e), and displacing the old 
 law to the contrary (/), — equities (if there are any) may 
 be enforced against the mortgagees (and the owners) of 
 tships, — just as against the mortgagees (and the owners) 
 of other personal chattels (g) . 
 
 (b) Law Guarantee v. Russian Bank, 1905, 1 K, B. 815. 
 
 (c) Shillito V. Biggart. 1903, 1 K. B. 683. 
 (i) The Orchis, 15 P. D. 38. 
 
 [e) 25 & 26 Vict. o. 63. 
 
 (/) Liverpool Bank v. Turner, 2 De G. P. & J. 502. 
 
 (g) Wardv. Beck, 13 C. B. N. S. 668; The Venture, 1908, P. 218. 
 
3U 
 
 CHAPTER XIX. 
 
 OF LIENS. 
 
 There are liens at law, and liens in equity; and among Varieties of 
 the many liens at law, may be instanced the lien which and'^ equity, 
 exists (by the common law) in favour of artisans (as), 
 manufacturers (b), and the like; and the lien which exists 
 (by custom) in favour of innkeepers (c), packers (d), 
 warehousemen (e), auctioneers (/), and the like; and the 
 lien which exists (by usage) in favour of stockbrokers (g), 
 and bankers {h) ; and the lien which exists (by statute) 
 against a ship (and against the true owners and mort- 
 gagees thereof), in respect of the expenses incurred for 
 the ship's necessaries (i), and the like. And among the 
 divers liens in equity, — and which are liens in equity 
 only (fc), — the two principal ones are the vendor's lien 
 for his purohase-money, and the vendee's lien for his 
 deposit. 
 
 There may also be concurrent liens, the one of them 
 being paramount to the other, but each being consistent 
 with the other (l). Also, there may be a particular lien 
 on goods (which is confined to the particular charge), 
 and a general lien on goods (which extends to the general 
 balance due): And there may be also a lien on lands, — 
 and the lien on lands differs from a lien on goods in 
 
 («) Keene v. Thomas, 1906, 1 K. B. 136. 
 
 (*) Bellamy v. Davey, 1891, 3 Ch. 540. 
 
 (c) £oHns V. Gray. 1895, 2 Q. B. 501. 
 
 {d) In re Witt, 2 Ch. Div. 489. 
 
 («) Ex parte Deeze, 1 Atk. 228. 
 
 (/) Webb V. Smith, 38 Ch. Div. 192. 
 
 Iff) London and Globe case, 1902, 2 Ch. 416. 
 
 {h) Brandao v. Barnett, 12 CI. & F. 787. 
 
 (i) The Ripon City, 1897, P. 226. 
 
 (k) Lord's Trustee's case, 1908, 2 K. B. 54. 
 
 (I) The JEmilie Millon, 190S, 2 K. B. 817. 
 
312 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 this material particular, namely, that the lien on lands 
 commences only when the possession of the lands is parted 
 with to the purchaser, whereas the lien on goods lasts 
 only while the possession is retained (w). 
 
 And, lastly, there is the lien of a solicitor on the deeds 
 and documents of his client (which arises propria vigore, 
 but which at the most gives only a sort of passive redress) ; 
 and the lien of a solicitor on a fund recovered (which 
 arises, in general, only upon the Court's declaring the 
 solicitor entitled to it, but which once it has arisen is an 
 active remedy and redress) ; and it is these two liens which 
 are now to be dealt with. 
 
 The lien of a 
 solicitor : 
 (1) On deeds, 
 books, &c. 
 
 (2) On fund 
 realised in 
 suit. 
 
 (2a) On costs 
 recovered. 
 
 Firstly, The Lien of a Solicitor on the Deeds, Books, 
 and Papers of his Client. — This is a lien originating by 
 custom, and afterwards sanctioned by the decisions of 
 the Courts (both of law and of equity); and it depends 
 not upon contract, — being merely an equitable right to 
 negatively withhold from the client (until the bill of 
 costs is paid) such things as have been intrusted to the 
 solicitor as such, and on which he has bestowed his skill 
 and labour. But, in order that this lien may arise, the 
 deeds must have come into the solicitor's hands, in his 
 character of solicitor, and not otherwise (re) ; and his lien 
 on them is for his costs only, and not for any debts (o) . 
 
 Secondly, The Solicitor's Lien upon a Fund. — This 
 is a lien which existed (and exists) by the common 
 law {p), but which has been recognised and enlarged {q) 
 by the Solicitors Act, 1860 (23 & 24 Vict. c. 127), s. 28: 
 By which Act, it has heen enacted, that it shall be lawful 
 for the judge (r), — whether or not the judge before whom 
 the suit or matter has been heard (s), — to declare (in his 
 own discretion (i)), that the solicitor is entitled to a 
 charge upon the property recovered or preserved in such 
 suit or matter by his instrumentality. And the exe- 
 
 (m) Grice v. Sichardson, 3 App. Ca. 319. 
 (n) Ex parte duller, 16 Ch. D. 617. 
 (o) In re Galland, 31 Ch. Div. 296. 
 {p) Haymes v. Cooper, 33 Beav. 4.^1. 
 (?) Curnock v. Sorrt, 1900, 2 Ch. 433. 
 ()•) In re Grmidm, 1896, 1 Q. B. 417. 
 (») In re Deakin, 1900, 2 Q. B. 489. 
 {t) Harrison t. Harrison, 13 P. D. 180. 
 
OF LIENS. 313 
 
 cutor (w), or assignee (x), of the solicitor may also be 
 declared entitled to this lien: And even where the soli- 
 citor has been discharged by the client, he will be (or 
 may be) entitled to the lien (y), — but subject to the like 
 lien in the new solicitor, — the lien of the later solicitor 
 always having precedence {z) . Also, the Court will, occa- 
 sionally, declare this sort of lien, where it is the only 
 available remedy, — as, for example, where the property 
 recovered (being a legal remainder) cannot be otherwise 
 got at by any execution (whether legal or equitable (a)), 
 the lien arising by such declaration of the judge being 
 always declared to be subject to (e.g.) the prior right 
 (or equity) of the executor-trustee to his costs (&), or to 
 other (if any) the prior subsisting equity (o). 
 
 The word "property" in the statute includes " co«i5s 
 ordered to be paid"; but where there is a counter-claim 
 in the action, and the plaintiff succeeds on the claim and 
 the defendant on the counter-claim, the balance only of 
 such costs is deemed to have been "recovered" in the 
 action (d) . 
 
 The Court will not declare the solicitor entitled to this 
 lien, where he has taken a specific mortgage for his costs 
 of the suit or matter (e); but the solicitor may be en- 
 titled (at one and the same time) both to his lien on the 
 papers of his client and to his lien on the fund re- 
 covered (/) . But he is not entitled to two charging 
 orders in respect of the same costs (gf) . 
 
 The mere fact of the client being an infant will not Lien on fund, 
 prevent the lien from arising (^); and, in fact, the lien ^^*'™*°*- 
 extends (usually) to the entire fund, and not merely to 
 
 (m) Baile v. Baile, L. E. 13 Eq. 497. 
 (x) Briscoe v. Briscoe, 1892, 3 Ch. 543. 
 (2^) Rhodes v. Sugden, 34 Oh. D. 155. 
 (z) Knight v. Gardner, 18B2, 2 Ch. 368. 
 [a) Woods V. Sarrison, 1898, 1 Ch. 465. 
 (4) In re Turner, 1907, 2 Ch. 126, 539. 
 
 (c) The Paris, 1896, P. 77. 
 
 (d) Westaeottv. Bcvan, 1891, 1 Q. B. 774. 
 
 (e) In re Taylor Stileman 6f Co., 1891, 1 Ch. 590. 
 (/) Pilcher v. Arden, 7 Ch. Div. 318. 
 
 [g) In re CockerelVs Eitate, 1911, 2 Ch. 318. 
 (A) Wright Y. Sanderson, 1901, 1 Ch. 319. 
 
THE OKIGINALLY- EXCLUSIVE JURISDICTION. 
 
 the share of the solicitor's own particular client therein (i), 
 — excepting that, where the lien purports to be a mere 
 recognition of the lien which already exists by the com- 
 mon law, then it will (usually) be limited to the share of 
 the particular client in the fund (k) . 
 
 The town agent of a country solicitor has a lien against 
 the country solicitor (I), — who in his turn has a lien 
 against the country client, — upon the fund recovered; and 
 the town agent may exercise against the country client, 
 • — to the extent of the country solicitor's lien against such 
 client, hut not further (m), — his (the town agent's) own 
 lien against the fund; but (save in that indirect way) the 
 town agent of the solicitor is not entitled to any lien upon 
 the fund (ra) . And here it should be mentioned, that 
 the general lien of the town agent against the country 
 solicitor extends to all costs whatsoever that are coming 
 to the. country solicitor, — ^and covers, in fact, everything 
 that is due from the country solicitor to the town agent(o), 
 • — Scil., on the agency account between them (p). 
 
 The lien arising by declaration is only for the costs of 
 litigation properly so called, — and for the costs only of 
 the particular litigation (q), — ^and therefore extends not 
 to (e.g.) the costs of an arbitration, or to costs incurred 
 altogether out of Court (although these latter may have 
 been the means of forestalling any proceedings in 
 Court (r)). 
 
 There is no statute of limitations applicable against 
 the solicitor's lien, — ^whether the lien be on papers (s) or 
 on a fund recovered (t) : But, senible, the Court might, 
 on the ground of delay, refuse to declare the charge (m) ; 
 
 i) Sehohy v. J«cA, 1893, 1 Ch. 709. 
 h) Curmck v. Born, 1900, 2 Ch. 433. 
 l) Farewell v. Coker, 2 P. Wms. 459. 
 'm) Ex parte Edioards, 8 Q. B. D. 262. 
 «) Maefarlane v. Lister, 37 Ch. Div. 388. 
 o) In re Jones and Roberts, 1905, 2 Ch. 219. 
 p) Lawrence v. Fletcher, 12 Ch. D. 858. 
 q) Smith v. Betty, 1903, 2 K. B. 317. 
 r) In re Lloyd- George, 1898, 1 Q. B. 520. 
 s) Curwen v. Milburn, 42 Ch. D. 424. 
 t) Siggins v. Scott, 2 B. & Ad. 415. 
 u) Curnock v. Born, 1900, 2 Oh. 433. 
 
OF LIENS. • 315 
 
 and in every taxation, — even under the common order to 
 tax {x), — the client may, now, freely allege the bar of 
 time, — Scil., save as against the lien. 
 
 The solicitor's lien on documents being only as betvsreen Lien on 
 himself and his client, the solicitor cannot refuse to pro- commensurate 
 duce the documents, on the lawful demand of a third with client's 
 party, — Scil., in a case where the client himself would be ^e*'oft*^ 
 bound to produce them {y), — as {e.g.) in an administra- deposit, 
 tion action {z) . Also, where a solicitor expressly dis- 
 charges himself (a), or impliedly discharges himself (&), 
 from the further conduct of the action, he is required to 
 give up all the papers in the action to the new solicitor, — 
 but always without prejudice to the lien (c). 
 
 The solicitor's lien on papers will not prejudice any Set-off, or 
 prior existing equity {d), — or be prejudiced by an equity SitenrenSg^— 
 arising subsequently (e). But, the solicitor's lien on a effect of. 
 sum due or payable to his client having formerly pre- 
 vented a set-off of such sum against a sum due from the 
 client (/), it has now been expressly provided, that a set-off 
 of damages or of costs between parties may be allowed, 
 notwithstanding the lien{g). However, the set-off may 
 be disallowed (h) ; and the solicitor's lien will not be pre- 
 judiced by any such claim to a set-off, if the costs have 
 been incurred (1) in different actions (i), — even although 
 consolidated (k), — or have been incurred (2) in proceed- 
 ings in different Divisions of the Court (l). 
 
 A compromise of the action, if it has been fairly entered Compromises^ 
 into, may have the effect of defeating the solicitor's usuaUy^defeat 
 
 the lien. 
 
 {x) Se Srookman, 1909, 2 Ch. 170. 
 (y) Ackerman v. Lockhart, 1898, 2 Ch. 1. 
 (z) Belaney v. Ffrench, L. E.. 8 Ch. App. 918. 
 (a) Heshp v. Metcalfe, 3 My. & Cr. 183. 
 (A) Griffiths v. Griffiths, 2 Ha. 587. 
 
 (c) In re Boughton, 23 Ch. D. 329; and see In re Bee Estates, 1911, 
 2 Ch. 85. 
 
 (<?) Boden v. Bensby, 1892, 1 Ch. 101. 
 (e) CoU V. Eley, 1894, 2 Q. B. 350. 
 (/) Earner v. Giles, 11 Ch. Div. 942. 
 (g) Goodfellow v. Gray, 1899, 2 Q. B. 498. 
 (A) Edwards v. Hope, 14 Q. B. D. 922. 
 (i) Blakey t. Latham, 41 Ch. Div. 518. 
 [k] Bake v. French, 1907, 2 Ch. 215. 
 (I) In re Bassett, 1896, 1 Q. B. 219. 
 
316 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 lien (m) ; fbut it ,will not have tliat effect, if the compromise 
 is purposely designed to defeat the lien, or is otherwise 
 an attempted fraud on the solicitor («), after due notice 
 given of his lien(o). 
 
 Eetention of 
 costs, &c., out 
 of fund. 
 
 Where a solicitor, having free moneys of the client in 
 his hands, retains thereout his costs, — that is to say, his 
 " professional charges" (which now include his " disburse- 
 ments " (p)), — such retention (unless after a proper bill of 
 costs delivered) is not considered a payment of the bill, — so 
 as to prevent taxation (q) : Also, a settlement of costs with 
 the client will not (necessarily) be a settlement binding 
 on the creditors also of the client, in the event of the client 
 afterwards dying insolvent (r), — or binding on the bank- 
 ruptcy trustee in the event of the client subsequently 
 going bankrupt (s) . And these two things may, con- 
 veniently, be mentioned here, — Firstly, that a solicitor, 
 who has duly delivered his bill of costs, may before taxa- 
 tion of the costs commence his action for their recovery, and 
 obtain judgment therefor, the amount to be certified (t); 
 and. Secondly, that the common order for taxation, which 
 directs the solicitor to give credit " for all sums of mone% 
 received hy him" on account of the client, is confined 
 to moneys, which the solicitor in his character of solicitor 
 has received, or which he is legally or equitably liable as- 
 such solicitor to pay over to the client, and against which 
 (if the solicitor were sued by the client for the moneys) 
 a set-off for his costs would be available (m) . 
 
 (1) Banker's There are also these further points to be noticed, — in 
 
 cSomer's Connection with liens (or quasi -liens), that is to say: 
 
 securities. Firstly, that the lien of a banker (on his customer's 
 
 securities) is in respect of the customer's general balance,. 
 
 m) The Hope, 8 P. D. 144. 
 
 n) In re Margetson and Jones, 1897, 2 Ch, 314. 
 
 o) Ross V. Buxton, 42 Ch. D. 190. 
 
 p) Sadd V. Griffin, 1908, 2 K. B. 510. 
 
 q) In re Baylis, 1896, 2 Ch. 107. 
 
 r) CoU V. TarTc, 41 Ch. D. 326. 
 
 >) Re Van Laim, 1907, 2 K. B. 23. 
 
 't) Lumlcy t. Brooks, 41 Ch. D. 323. 
 
 m) In re Le Brasseur and Oakley, 1896, 2 Ch. 487. 
 
OF LIENS. 317 
 
 and subsists only where it is not inconsistent with (or 
 supei-seded by) any specific security (x) or specific appro- 
 priation (?/); Secondly, that the lien which arises, where (2) Vendor's 
 a man agrees to sell an estate and to lend money to the advances for 
 purchaser for improving' the estate, is for the advances so improvements. 
 made (including the purchase-moneys remaining un- 
 paid (2)); and Thirdly, that the lien which arises, where ^le^estsof 
 there has been a breach of trust (alid some cestui que tryst cestuis que 
 has been implicated therein), extends to the whole beneficial |or*/teir 
 interest of the cestui que trust in the trust funds, — Sdl., breaches of 
 so far as it is equitable, and not legal. ™^ ' 
 
 If there are two joint- tenants of a lease, and one of (4) Joint- J ^ 
 them renews the lease for the benefit of both, he will have for costs of re- 
 a lien on the moiety of the other for a moiety of the uewing lease, 
 renewal fine and expenses (a) . But where two or more 
 purchase an estate, and one of them pays the whole pur- 
 chase-money, and the estate is conveyed to them both, — 
 The one who pays has neither a lien nor a mortgage, 
 but only a right of action against the other, — Scil., in 
 respect of the proportion of the other; but, upon a subse- 
 q[uent partition of the purchased property, — and also upon 
 a subsequent division of the sale-prooeeds thereof, where 
 the property is sold by a mortgagee paramount of the 
 entirety (b), — the debt of the purchaser (if he still re- 
 mained un-reoouped the co-purchaser's proportion of the 
 purchase-moneys) would be provided for. Also, where 
 one of two joint -lessees (occupiers of a house) re- 
 decorates it at his own expense, he has no lien in respect 
 of his outlay (c) ; and in such a case, he may have no 
 action even; but upon a subsequent partition of the pro- 
 perty, compensation might be made him for what he had 
 properly expended (d), — Scil., in respect of the increase 
 in the selling value by reason of such expenditure. 
 
 («) In re European Bank, L. E. 8 Ch. App. 41. 
 
 iy) Bill V. Smith, 12 Mee. & W. 618. 
 
 (z) Hx parte Linden, 1 Mont. D. & D. 435. 
 
 (a) Ex parte Grace, 1 B. & P. 37B. 
 
 h) LawUdge v. Tyndall, 1896, 1 Ch. 923. 
 
 (e) Leigh v. DicJceson, 5 Q. B. D. 60. 
 
 [d) In re Jones, 1893, 2 Oh. 461. 
 
318 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 (5) Lien of A limited company, by virtue of its articles of asso- 
 
 ous?S.~ ciation, may be, — and usually is, — entitled to a lien on 
 the sharee of its members, for any debt or liability of the 
 member to the company; and where such a lien exists, its 
 extent depends upon the relevant provisions conta-ined in 
 the articles for the time being of the company (e) ; and 
 the lien may extend to include the secret profits of a 
 director of the company (/). 
 
 («) Baily v. British £quitahk, 1906, A. C. 35. 
 (/) Bodega Company ease, 1904, 1 Ch. 276. 
 
319 
 
 CHAPTER XX. 
 
 PENALTIES AND POEFEITUEES. 
 
 Section I. Penalties, — Relief feom. 
 
 The doctrine of equity, with regard to penalty-clauses in Penalty, 
 instruments, is,- _ _ ^o'^anr"- 
 
 Firstly, that wherever the clause is inserted merely to compensation 
 secure the performance of some act (or the enjoyment of ^"'^^ 
 some benefit), the performance of the act (or the enjoy- 
 ment of the benefit) is the substantial intent of the instru- 
 ment, and the penalty is only accessory (a) ; and 
 
 Secondly, that, in the case of bonds to secure a mere 
 debt (and in which the penal sum is usually double the 
 debt), the obligee shall recover only his principal interest 
 and costs, — and that he shall never recover more than the 
 amount of the penalty : And, therefore, such a bond- 
 creditor cannot issue a specially indorsed writ for the 
 recovery of the penalty (b) ; and he must show some very 
 special grounds for that, if he is ever to succeed in that: 
 
 That is to say, — Firstly, if the penalty is to secure the 
 mere payment of money, Courts of Equity will, — and 
 (since the 4 & 5 Anne c. 16, s. 12) Courts of law also will, 
 —relieve upon payment of principal and interest (c) ; and, 
 Secondly, if the penalty is to secure the performance of 
 some act, the Court will (in case of non-performance of 
 the act) ascertain (if possible) the amount of the damages, 
 and will relieve on payment of that amount only; but, 
 Thirdly, as was observed by Lord St. Leonards (c?), — Party cannot 
 
 («) Sloman v. Walter, 1 Bro. C. C. 418. 
 
 (J) Tuther y.-Caralampi, 21 Q. B. D. 414. 
 
 (e) Elliott y. Turner, 13 Sim. 477; Hatton v. Sarris, 1892, A. C. 547. 
 
 [d) French v. Macule, 2 Drew. & War. 274. 
 
320 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 contract by "If a thing is agreed to be done (though there be a 
 P^y^stlie penalty annexed to its non -performance), the very thing 
 itself rmigt be done," — wherefore a judgment obtained on 
 the bond would stand as a security only for the due per- 
 formance of the act (e) . 
 
 The performance of the act will, also, in the general 
 case, be enforced by injunction (/); and, occasionally, you 
 may have your choice between the injunction and the 
 penalty (or damages (^)); but (far more usually) you 
 have your injunction for the future, and damages for the 
 past (h) . 
 
 Wheie cove- Where the contract is alternative, and the real intent is, 
 do'either o? ^^^^ ^he party bound thereby shall have either of the two 
 two things, alternatives to choose between, and that if he elect to adopt 
 forrae alter-'' the one, he shall pay a certain sum of money, and if he 
 native than the elect to adopt the other, an additional sum of money, — In 
 is not a case such a case, equity will look upon the additional pay- 
 of penalty. ment as a sum agreed upon, and not as a penalty: For 
 example, if a man lets meadow-land for two guineas an 
 acre; and the contract is, that if the tenant employs the 
 land in tillage, he shall pay an additional rent of two 
 guineas an acre, — There the breaking-up of the meadow- 
 land is an act permitted by the contract (^), — a diSerent 
 contract altogether from an agreement not to do a thing 
 (with a penalty for doing it(/c)): But, even in the case 
 of such tillage-contracts, the intention may be to prohibit 
 the act, — In which latter case, the remedy by injunction 
 would be available, save so far as it has now been excluded 
 by the provisions of the Agricultural Holdings Act, 
 1908 (I); and if the plaintiff was too late to get his in- 
 junction, the damage sustained would be recoverable. 
 Also, the option may not be with the wrongdoer at all. 
 
 (e) Moorecroft v. Dowding, 2 P. Wms. 313. 
 
 (/) Jtt.-Gen. V. Ashborne Recreation, 1903, 1 Ch. 101. 
 
 {g) General Accidents v. Noel, 1902, 1 K. B. 377. 
 
 {h) SoU V. Chard Union, 1894, 1 Ch. 293. 
 
 (i) G. N. Sail. Co. v. TFinder, 1892, 2 Q. B. 595. 
 
 (A) Wilkon V. Love, 1896, 1 Q. B. 626. 
 
 {l) 8 Edw. VII. 0. 28, ss. 25, 26. 
 
PENALTIES AND FORFEITURES. 321 
 
 but may be with the party injured, — to have the injunc- 
 tion or else the damages at his option (m) . 
 
 It is neoessary in all cases, therefore, to distinguish Kuiesasto 
 between a penalty and what is not a penalty; and the tetween°a 
 following rules have (for this purpose) been laid down: — penalty and 
 
 (1) Where the payment of a smaller sum is secured d^ges!^ 
 by a larger, the larger sum is a penalty (re); 
 
 (2) Where the agreement stipulates for the perform- 
 ance of several acts, and one and the same sum is ex- 
 pressed to be payable for the breach of all or any of the 
 stipulations, — That sum is, — in general (o), but not in- 
 variably (p), — a penalty; 
 
 (3) where the payment stipulated for is exactly pro- 
 portioned to the particular breach (g), — and especially if 
 it is expressed in the contract, that the payment is to bear 
 INTEREST from the date of the breach, — In such a case, 
 the payment will not be a penalty at all (r); 
 
 (3a) Where there was a lease of coal and iron, and the 
 lessees had the liberty of placing slag from their blast- 
 furnaces on the land demised; and they covenanted to 
 pay to the lessor £100 per acre for all land not restored 
 to its original agricultural condition at a particular date, 
 — The £100 per acre was recoverable in full (s); 
 
 (4) If there is only one event on which the money is 
 to become payable, and there is no means of ascertaining 
 the damage resulting to the plaintiff from the breach, 
 the specified sum is, in fact, the agreed amount of the 
 compensation in order to avoid the difficulty (t), — Be- 
 cause, generally, where the damages from the breach 
 cannot be measured, the contract must be taken to mean, 
 that the sum agreed on was to be liquidated damages, 
 and not a penalty (m) ; 
 
 Also (5) The mere use of the term " penalty " or 
 " liquidated damages " is not conclusive of the matter (cc); 
 
 (m) Weston v. Metrop. Asylums, 9 Q. B. D. 404. 
 
 {n) Protector Endowment Co. t. Qrice, 5 Q. B. D. 392. 
 
 (o) Kemblev. Farren, 6 Bin^. 141. 
 
 Ip) Pye's case, 1906, 1 K. B. 425. 
 
 [q) Elphinstone v. MonJcland Iron and Coal Co., 11 App. Ca. 332. 
 
 (r) Chjdehank case, 190.5, A. C. 6. 
 
 («) Elphinstone v. Monkland Iron and Coal Co., supra. 
 
 {t) Sainter v. Ferguson, 7 C. B. 730. 
 
 («) Wallis V. Smith, 21 Oh. Div. 243. 
 
 \x) Kemhle v. Farren, supra. 
 
 S. Y 
 
322 
 
 THE ORIGINALLY EXCLUSIVE JUEISDICTION . 
 
 Penalties are 
 odious ill law, 
 — example 
 of this. 
 
 and a sum, although called a "penalty," may be "liqui- 
 dated damages " {y); and in ease of ambiguity, the Court 
 leans in favour of the construction which treats the sum 
 as a penalty, — Scil., in order to relieve against it. 
 
 Where there is a building contract with a penalty, — 
 and (by the terms of the contract) £x per day is made 
 payable by A. to B. (by way of penalty), in case of A.'s 
 default to complete the buildings within the time 
 appointed by the contract, — The penalty will not be re- 
 coverable at all by B., if the default of A. is really attri- 
 butable to B.'s own act (z), — Soil., because penalties are 
 odious in law (a) . 
 
 Penalty,— Where there was a mortgage, with a bond collateral 
 
 when the^ci^ thereto, — and the amount of the mortgage debt (together 
 cnmstaiices are with the arrears of the interest due thereon) exceeded the 
 exceptiona . penalty of the bond, the whole amount was recoverable, 
 — Soil., on the mortgage (b); and where a sum of £4,800 
 was due from A. to B., and B. agreed to take £2,400 in 
 discharge, — on obtaining proper security for that, — but 
 with a proviso that the whole original £4,800 should 
 again become and be payable, in case of default in pay- 
 ment of the £2,400,— The £4,800 was held not to be a 
 penalty, or relievable as such (c) . 
 
 Forfeitures 
 governed by 
 same prin- 
 ciples as 
 penalties, — 
 in general. 
 
 Forfeiture for 
 non-payment 
 of rent. 
 
 Section II. Forfeitures, — Eelief from. 
 
 The principles which govern the Court in relieving 
 against penalties apply also, generally, to the relief 
 against forfeitures, — other than forfeitures arising under 
 wills and settlements (d), and other than forfeitures aris- 
 ing under leases and other strict contracts (e). But, even 
 in the case of leases, equity would have interfered (to a 
 limited extent) to relieve against a forfeiture, — Por ex- 
 
 (j/) Diestalv. Stevenson, 1906, 2 K. B. 345. 
 
 (z) Solrne V. Guppy, 3 Mee. & W. 387. 
 
 («) ComynsDig., Condition L. (6). 
 
 \b) Clarke v. Lord Abingdon, 17 Ves. 106. 
 
 (c) Thompson v. Hudson, L. R. 4 H. L. 1. 
 
 {d} Samuel v. Samuel, 12 Ch. Div. 162 ; Otway v. Otwau, 1895 2 Ch 
 235. 
 
 (e) Warner v. Moir, 25 Ch. Div. 605. 
 
PENALTIES AND FORFEITURES . 323 
 
 ample, a forfeiture for non-payment of rent (on the lessee 
 paying the rent (/)), — Soil., because the rent in arrear 
 was a mere money demand, the purpose of the clause of 
 re-entry for the non-payment of it being only, — in the 
 general case (g), but not invariably (h), — to secure the 
 payment («); and the Courts of law also were (after a 
 •time) enabled (by the Common Law Procedure Acts, 
 1852 (it), and 1860 (l)), to relieve in such a case (m). 
 
 But as regards the other provisions and covenants Forfeiture 
 oontained in leases, it was not quite settled, whether govenant'to* 
 equity could (but the better opinion was, that equity repair, or for 
 could not) have relieved against a forfeiture arising from coveuantto 
 (e.g.) a breach of the covenant to repair (n), — although insure, 
 equity would have required the covenantee to be satisfied 
 with a substantial performance of the covenant(o): And, 
 of course, the covenantee was required, in all cases, to 
 prove the breach of covenant (p), — and to prove it by his 
 own evidence {q) : And it was perfectly well settled, that 
 equity would not (nor could) relieve against a forfeiture 
 for breach of the covenant to insure (r) . 
 
 By the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), Relief under 
 s. 14 (as between lessor and lessee, or under-lessor and theConvey- 
 under-lessee (s)), — and by the Conveyancing Act, 1892 i88rMid*']892. 
 (55 & 56 Vict. c. 13), s. 2 (as between lessor and under- 
 lessee), — The High Court, in each Division thereof, is now 
 enabled to give relief, — upon equitable terms (to be pre- 
 scribed by the Court), and upon paying to the lessor the 
 costs and expenses (if any) incurred by the latter of and 
 incidental to the breach of covenant, — ^against every for- 
 
 (/) Preem. Oh. Rep. 114; BoieserY. Colby, 1 Hare, 126. 
 
 Ig) Wadirian v. CiiUiaft, 10 Ves. 67. 
 
 (A) Galbraith v. Poyrdnn, 1905, 2 K. B. 258. 
 
 (i) Wadman v. Cnlcraft^ supra. 
 
 \K) 15 & 16 Vict. c. 76, s. 212. 
 
 \l) 23 & 24 Vict. 0. 126, a. 1. 
 
 (jb) Howard v. Fanshawe, 1895, 2 Ch. 581. 
 
 (n) Hdl T. Barclay, 18 Ves. 62. 
 
 (o) Hill T. Barclay, supra ; Gregory v. Wilson, 9 Hare, 683. 
 
 (p) Croft V. Liimley, 6 H. L. Ca. 672 ; Rush v. Lucas, 1910, 1 Ch. 437. 
 
 (q) Doe d. Bridges v. Whitehead, 8 A. & E. 571. 
 
 (r) Green v. Bridges, 4 Sim. 96. 
 
 .(«) Fletchers. Nohes, 1897, 1 Ch. 271. 
 
 y2 
 
324 THE ORIGINALLY EXCLUSIVE JUEISDICTION . 
 
 feitur© for breach of any covenant whatsoever {t), con- 
 tained in the lease or under-lease or fee-farm grant, — or 
 agreement for a, lease or under-lease, — other than and 
 except only the following covenants and conditions, that 
 is to say: — 
 
 (1) The covenant not to assign or underlet (m); 
 
 (2) The condition of forfeiture upon a bankruptcy, 
 liquidation, or execution; and 
 
 (3) The covenant in a mining lease for permitting 
 inspection, &c., by the lessor; and, of course, 
 
 (4) The covenant to pay rent (the relief against that 
 having needed no express provision). 
 
 The forfeiture on a bankruptcy (liquidation or execu- 
 tion) may now be relieved against — in certain cases, and 
 under certain restrictions (x), — Scil., if the lease should 
 be sold within a year. Also, in favour of an innocent and 
 blameless under-lessee (as distinguished from the lessor 
 himself) the forfeiture resulting from a breach of the 
 covenant not to underlet, may be (in effect) relieved 
 against: Secus, if the under-lessee is not entirely blame- 
 less (?/). 
 
 The relief provided by the Conveyancing Acts, 1881, 
 1892, is obtainable either in an action or on a counter- 
 claim (z), — but is not obtainable, — as of right (a), but 
 only by way of indulgence (6), — after actual entry by 
 the lessor for the forfeiture: In which latter respect (as 
 well as in the nature of the breach of covenant which is 
 relieved against), the relief under these Acts differs from 
 the relief obtainable under the Common Law Procedure 
 Acts, — this latter relief being obtainable, as of right, even 
 after actual entry by the lessor (c), — or after an eject- 
 ment commenced (d) . 
 
 [t) Gray v. Sonsall, 1904, 1 K. B. 601. 
 (m) Barrow v. Isaacs, 1891, 1 Q. B. 417. 
 {x) 55 & 66 Viot. 0. 13. 
 
 (2/) Imray v. Oakshette, 1897, 2 Q. B. 218 ; Matthews v. flmallwood, 1910, 
 W. N". 69. 
 
 (z) Roger Cholmeley's School y. Sewell, 1893, 2 Q. B. 254. 
 (a) Sogers v. Rice, 1892, 2 Ch. 170. 
 (S) Sendy v. Evans, 1909, 2 K. B. 894. 
 Ic) Sowardv. Fanshawe, 1896, 2 Ch. 581. 
 (d) Moore v. Sinee, 1907, 2 K. B. 8. 
 
PENALTIES AND FORFEITURES. 325 
 
 Where the lease or tenancy-agreement contains an Lessee beoom- 
 option of purchase in the lessee, and the option is exer- ^fore'eiitry'^' 
 cised by the lessee (or by his legal assignee) before the for forfeiture, 
 
 1 J i. • /J! J ^ I. • i. —effect of. 
 
 lessor proceeds to exercise (for due cause) his power to 
 forfeit the leasehold interest, — The position of the lessee 
 (or of his assignee) is transmuted into that of purchaser, 
 and is no longer liable to the forfeiture to which he was 
 liable while lessee (e). And where there is a building Builder en- 
 agreement, and the building lessee is entitled to have p*ecei^al^^° 
 leases (piecemeal) as the buildings are completed, — The effect. 
 right to any lease (if it have meanwhile completely 
 arisen) will not be forfeitable, even when the building 
 agreement itself has since become forfeitable (/) . 
 
 In the case of the other strict contracts above referred lucidents of 
 to, — Firstly, in the case of vs^ills. Equity was (compara- feiture's in 
 tively) powerless (and also indisposed) to relieve, — ScU., respect of, 
 because the beneficiaries entitled under the will were (all only in ex- 
 of them) volunteers, and no one of them (more than any ceptionai 
 other of them) entitled to be treated with any exceptional ''^^^' 
 favour, — more especially as against the next of kin; But 
 still, even in the case of wills, equity required (e.g.), 
 that the ground for an alleged forfeiture should, — afi 
 regards the real and true substance of the thing, — be 
 proved (g) ; and, Secondly, as regards forfeitures which 
 were incident to tenures, — equity would (but under 
 special circumstances only) have granted relief against 
 the forfeiture: For example, in Peachy v. Somerset 
 (Duke) (h), where the owner of certain copyhold lands 
 made a lease of the lands for seven years, without first 
 obtaining the licence of the lord of the manor to make 
 the lease, — and a forfeiture was incurred thereby, — The 
 jurisdiction to relieve against the forfeiture was acknow- 
 ledged: Also, in Andrews v. Hulse(i), — the jurisdiction 
 was unequivocally asserted: But the relief will not ordi- 
 narily be granted in such cases; and it has, in fact, been 
 sometimes stated generally, — but too generally, — that the 
 Court cannot (nor will) relieve against any forfeiture 
 
 (e) Bafety v. Schqfield, 1897, 1 Ch. 957. 
 (/) Lowther y. Heaver, 41 Ch. D. 248. 
 (y) Samuel T. Samuel, 12 Ch. D. 152. 
 (/() 1 Str. 447. 
 (t) 4 K. & J. 392. 
 
326 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Forfeiture, — 
 occasionally 
 treated as a 
 penalty, and 
 relieved as 
 Biich. 
 
 that is an "incident of tenure:" That is to say, if the 
 forfeiture is the only relief, — or the only appropriate 
 relief, — available to the lord of the manor (/<;), and to 
 give him damages merely would not suffice {I), — The 
 Court will not relieve the copyholder: And, in Cox v. 
 Higford (m), where the plaintiff (a copyholder) sued for 
 relief against the forfeiture of his tenement, — the for- 
 feiture in that case having been on account of waste com- 
 mitted (or permitted) by the plaintiff; and it appeared,, 
 that the plaintiff had neglected (for about thirty years 
 altogether) to repair his tenement, although he had been 
 repeatedly required by the lord to repair it, — The Court 
 refused the relief, — Soil., because of the wilful obstinacy 
 of the plaintiff, and because (as appears from the report) 
 the lord had already recovered the premises in ejectment,, 
 and had since then been (for about nine years) in the- 
 possession of the tenement by his occupying tenant. 
 
 Occasionally, — and especially in favour of a public- 
 body, — the Court will treat the forfeiture clause in a 
 lease (or fee simple purchase) as a penal clause, — in order 
 to relieve against the forfeiture (w) ; but a lease which 
 has been made under the provisions of some statute, and 
 which (by tlie terms of the statute) is expressly ended 
 in a certain event, cannot b© so treated (o) . 
 
 {/c) Galbraith v. Poynton, 1905, 2 K. B. 258. 
 
 \l) Blackmore v. White, 1899, 1 Q. B. 293. 
 
 (m) 2 Vern. 664. 
 
 (n) Sagenham Docks ease, L. R. 8 Ch. App. 1022. 
 
 (o) Carrick v. Miller, L. K. 1 H. L. So. 356. 
 
327 
 
 CHAPTEE XXI. 
 
 MARRIED WOMEN. 
 
 Sect. I. Sepaeate Estate. 
 
 Sub-sect. 1, — Apart from Legis- 
 
 lation. 
 Sub-sect. 2. The Effects of Legis- 
 lation. — 
 Sect. 11. Pin Monet and Paea- 
 
 Seot. III. Equity to a Settle- 
 
 MbNT, AND E.IGHT OF SUEVIVOE- 
 SHIP. 
 
 Sect. IV. Settlements in 
 
 DEEOaATION OF MaEITAI. 
 
 PHEBNAXIA. KlUHTS. 
 
 By the common law, a husband on marrying became Bights of 
 
 entitled,— husband, by 
 
 TTji A 11. .ni-nvT-i m the common 
 
 Jb irstiy, As regards his wiie s Real Estate, — To the law. 
 rents and profits thereof during the joint lives {i.e., 
 during the coverture), — and (in general) to an estate for 
 his life by the curtesy thereafter: 
 
 And, Secondly, As regards her personal estate, — The 
 wife's chattels personal in possession passed to the hus- 
 band absolutely; and her choses in action passed to the 
 husband absolutely, subject only to his reducing them 
 into possession during the coverture, — or, if he did not 
 hut survived her, he {a), — and (after his death) his 
 administrator (&), — was entitled, on taking out adminis- 
 tration to the wife, to recover these choses in action; and 
 her chattels real {i.e., her leas3holds) passed into the 
 husband jure mariti, — with full power to aliene them 
 {inter vivos) for the whole term of the lease; and that 
 was so, even when the leaseholds were reversionary (c), — 
 provided only the reversion was capable of falling into 
 possession during the coverture {d) . 
 
 On the other hand, if the wife survived the husband, 
 then (firstly) all her choses in action which he had not 
 
 la) Smart v. Tranter, 43 Oh. Div. 587. 
 (ij Fleet v. Perrins, L. R. 3 Q. B. 536. 
 (c) In re Bellamy, 25 Ch. D. 620. 
 ((?) Daberley v. Day, 1 6 Beav. 33. 
 
328 
 
 THE ORIGINALLY EXCLUSIVE JXIRISDICTION . 
 
 Interference 
 of equity. 
 
 reduced into possession, and also (secondly) all her lease- 
 holds which he had not aliened inter vivos absolutely for 
 the whole term of the lease, survived to the wife; and if 
 the husband's alienation of the leaseholds had been of part 
 only, the residue of the leaseholds survived to the wife; 
 and if his alienation of the leaseholds had been by way of 
 mortgage only, then the leaseholds survived wholly to the 
 wife, — but subject to the mortgage (being an alienatio 
 rei, and not a mere "charge" (e)). 
 
 The husband acquired these extensive interests in the 
 property of his wife, in consideration of the obligation 
 which (upon the marriage) he contracted of maintaining 
 her; but the law gave the wife no remedy whatever, in 
 case of his neglecting that obligation, — and it was chiefly 
 for that reason, that equity raised up (with reference to 
 married women) the new law of the "separate estate" 
 of the wife. And so beneficial was this new law found 
 (by experience) to be, that it at length received legislative 
 sanction in the Married Women's Property Act, 1870, 
 amended by the Married Women's Property Act, 1874,^ — 
 Both which Acts were afterwards consolidated and 
 amended by the Married Women's Property Act, 1882; 
 and the last - mentioned Act has itself been recently 
 amended by the Married Women's Property Acts, 1893 
 and 1907, — the provisions of all which successive Acts are 
 hereinafter more particularly stated. 
 
 Section I. The Wife's Separate Estate. 
 Sub-sect. 1. — Apart from Legislation. 
 
 Feme covert At common law, the existence of the wife, as a legal 
 
 common*law entity (or persona) separate and distinct from her hus- 
 
 hoid property band, was not recognised (she being considered merged in 
 
 CbtldT''"' her husband (/)): But, in equity, the case was different,— 
 
 but she might a married woman being there considered capable of hold- 
 do BO in 
 equity. 
 
 (e) Co. Litt. 185b ; Lord Alergavenni/s case, 6 Rep. 78b ; ChaUis 
 (2nd ed.), 335, n. 
 
 (/) Murray v. BarUe, 3 My. & K. 220. 
 
MARRIED WOMEN. 329 
 
 ing property, independently of her husband, for her own 
 separate use ; and once having been permitted to hold pro- 
 perty to her separate use, she held it with all the incidents 
 of property, — including the jus disponendi (that is, the 
 right of alienation (gr)), and the jus defendendi (that is, 
 the right of pleading [e-g-~] the Statutes of Limitation in 
 defence of her separate estate (h)). 
 
 The separate estate may be variously created: — Separate 
 
 ^ -J -J estate, how 
 
 (1) By ante-nuptial agreement with the intended bus- created, 
 band, — such agreement being made with reference either 
 
 to the wife's own property, or with reference to the pro- 
 perty of her husband, or of third parties; 
 
 (2) By post-nuptial agreement, — express (i) or im- 
 plied (fc), — with her husband; 
 
 (3) By vii'tue of a separation deed; but this species of 
 separate estate oomes to an end, in general, with the 
 resumption of the cohabitation (l), — unless the separation 
 deed (being in the nature of a settlement) expressly other- 
 wise provides (m) ; 
 
 (4) Under a private Act of Parliament, operating as 
 a settlement; 
 
 (5) By gifts from the husband to his wife, — being gifts 
 made to her absolutely (w), and not merely to be worn by 
 her for his gratification (o); also, gifts from a stranger 
 (by delivery to the wife(pi)); 
 
 (6) By the wife trading separately {q); and 
 
 (7) By express limitation (by "deed or will) to her for 
 her separate use, — this latter having been the most fre- 
 quent source of the separate estate, — Scil., prior to the 
 Married Women's Property Acts above referred to. 
 
 (ff) Fettiplaee v. Gorges, 1 Ves. Jr. 48. 
 (A) Malktt V. Bastings, 35 Ch. D. 94. 
 (i) Pye V. Pye, 13 Q. B. D. 147. 
 
 \k) Slanning v. Style, 3 P. "Wms. 334 (the wife's " butter-money "). 
 (I) Mcolv. Nicol, 31 Ch. Div. 524. 
 (m) Spark v. Massey, 1904, 1 Ch. 451. 
 (n) Tosher v. Tasker, 1895, P. 1. 
 
 (o) Baddeley v. Baddelm/, 9 Ch. Diy. 113 ; and disting. Masson v. 
 3e Fries, 1909, 2 K. B. 831. 
 
 (p) Graham v. Londonderry, 3 Atk. 393. 
 \q) Ex parte Shepherd, 10 Ch. Div. 573. 
 
330 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Interposition 
 of trustees 
 not necessary, 
 — since (failing 
 any other 
 trustee) the 
 husband is 
 trustee for the 
 wife. 
 
 It was at one time supposed, that the interposition of 
 trustees was indispensable for the protection of the wife's 
 interests; but it was afterwards established, that the inter- 
 vention of trustees was not indispensable; land the husband 
 (as having the legal estate) was held to be a trustee for 
 his wife(?-). And, now, under the Married Women's 
 Property Act, 1882, the intervention of a trustee is in 
 no case necessary (s), — nor is a trustee now necessary in a 
 separation deed even(;t). 
 
 What words 
 held sufficient 
 to create the 
 separate iise. 
 
 What words 
 held not suffi- 
 cient for that 
 purpose. 
 
 ..No particular form of words was (or is) necessary, in 
 order to create the separate use, — so that a gift to the 
 wife "for her own use, and at her disposal" (m), or "for 
 her own use, independent of her husband " '(«), or "so 
 as that she shall receive and enjoy the issues and pro- 
 fits " {y), — will suffice: On the other hand, no separate use 
 would be created, where there was {e.g.) a mere direction 
 " to pay to a married woman or her assigns " (2) ; or where 
 there was a gift " to her own use and benefit," or to her 
 "absolute use" {a); or where the payment directed to be 
 made was " into her own proper hands, to and for ber 
 own use and benefit " (6), — 8cil., because none of these 
 expressions excluded the common law rights of the 
 husband. 
 
 The wife's 
 power of dis- 
 position over 
 separate 
 
 (a) As to per- 
 sonalty. 
 
 According to the decision in Peacock v. Monk {c), a 
 married woman, acting in respect of her separate pro- 
 perty, acts as if she were a feme sole : Therefore, all per- 
 sonal property settled upon her for her separate use may 
 be alienated by her without her husband's consent, — and 
 either by act inter vivos, or by her will, — ^and whether 
 the interest is in reversion or is in possession {d) : But, 
 
 (r) Wassellv. LeggaU, 1S96, 1 Oh. 554. 
 (s) Cum V. Mansfield, 43 Ch. D. 12. 
 it) Sweet V. Sweet, 1895, 1 Q. B. 12. 
 (n.) Inglefield v. Cogklan, 2 Coll. 247. 
 (x) WagstafTi. Smith, 9 Ves. 520. 
 (y) Tyrrell v. Hope, 2 Atk. 858. 
 (z) Lumb V. Milnes, 5 Ves. 517. 
 («) Jix parte Abbot, 1 Deacon, 338. 
 (*) Tyler v. lake, 2 Euss. & My. 183. 
 
 (c) 2 Ves. Sr. 190. 
 
 (d) Sturyis v. Oorp, 13 Ves. 190. 
 
MAEElED WOMEN. 331 
 
 as regards her real estate, settled to her separate use, — (b) As to 
 This distinction used to b& taken, namely, that her life ^^^^'•J- 
 interest she oould dispose of (e); but her fee simple (/), — 
 and a fortiori her fee tail, — she could not dispose of, save 
 (possibly) to the extent of the equitable interest therein: 
 However, that sort of distinction, semble, is now (for 
 all practical purposes) at an end, — save (possibly) as 
 regards estates in tail: But a married woman may not 
 (even yet) dispose of her life-estate under a separation 
 deed (g), — nor of her alimony (h), or the like (i). 
 
 Upon the question, whether the wife's disposition by Husband's 
 deed or by will of her fee simple estates, deprives the estate bythe 
 husband (surviving her) of his curtesy estate, — assuming question as to; 
 that he would otherwise be entitled thereto, — the rule of 
 the Court (which at first wavered) is now fully settled as 
 follows, namely, — That although, in the absence of (or 
 subject to) any such disposition by the wife, the husband 
 is entitled to his curtesy, even out of statutory separate 
 property (k), — yet, in case the wife disposes of the whole 
 estate by deed inter vivos, or even by her will, the husband 
 is (by such disposition) wholly barred and excluded from 
 his estate by the curtesy (Z). And, as regards the hus- and as to his 
 band's rights in the copyhold estates of his wife, — although interests in 
 such rights (as existing by the particular customs of the holds! °^^ 
 manor) may extend {e.g., in the manor of Taunton Dean) 
 beyond a mere curtesy estate, — These rights are now, 
 semble, wholly barred by the disposition of the wife. 
 
 If a married woman effect any savings out of the pro- The savings 
 perty which is settled to her separate use, she has the separate 
 same power over the savings that she has over the separate estate are 
 
 .,n-r-i -fi-ni 1 *"° Separate 
 
 estate itseli, — ior if the wife has a power over the estate. 
 capital, she has also a power over the income and accumu- 
 lations (m) ; and the like rule applies also to savings out 
 
 («) Stead V. Kelion, 2 Beav. 245. 
 
 (/•) Taylor v. Meads, 34 L. J. Ch. 203. 
 
 Q) Hyde v. Price, 3 Ves. 437. 
 
 (A) In re Robinson. 27 Ch. D. 160. 
 
 (j) Walkins v. Watkins, 1896, P. 222. 
 
 {k) Hope V. Snpe, 1892, 2 Ch. 336. 
 
 (I) Cooper V. M'Donald, 7 Ch. Div. 288. 
 
 (m) Newlands v. Paynter, 4 My. & Or. 408. 
 
332 
 
 THE OSIGINALLY EXCLUSIVE JURISDICTION. 
 
 Wife may 
 permit her 
 husband to 
 receive the 
 income of her 
 separate 
 estate : 
 
 and will be 
 entitled to 
 only one year's 
 account, if to 
 any account 
 at all. 
 
 of the income allowed to the wife under a separation 
 deed (n), or upon her husband's lunacy (o). And the in- 
 vestments also made with such savings (or with the accu- 
 mulations thereof) belong to the married woman for her 
 separate use (p), — a result which used not (formerly) to 
 hold good for the investments of her capital moneys (q) . 
 
 The wife may, of course, give her separate income to 
 her husband (or permit him to receive it); and if the 
 husband and wife are living together,' and have for a long 
 time so dealt with the separate income of the wife as to 
 show that they must have agreed to the husband receiving 
 it, — That is evidence of a gift by her to him of the separate 
 income (r) . And even where she is entitled to an account 
 against him of his receipts of her separate income, the 
 general rule is, that he shall be obliged to account for one 
 year's receipts only (s) ; and, of course, if she have made 
 a gift of her separate income to him, she is not entitled to 
 any account whatever of it (t) : But the onus of proving 
 such a gift is on the husband (u), — and the onus is diffi- 
 cult to satisfy (v), — and more especially so, where the 
 alleged gift is of the corpus or capital (a;) . 
 
 Husband, on If a feme covert, having personal estate settled to her 
 takes separate Separate usc, dies without disposing of it, the husband is 
 personal estate entitled to it, for his own benefit, but subject to the wife's 
 debts (y); and all those parts of it which consist of cash 
 furniture or other personal chattels in possession (or of 
 chattels real (2)), he takes in his marital right (a); and 
 all those parts of it which consist of " choses in action," 
 
 («) Crouch T. Waller, 4 De G. & J. 802. 
 
 (0) He Tharp, 3 Prob. Div. 76. 
 
 \p) Barrack v. M'Culloch, 3 K. & J. 110. 
 
 (q) Wright v. Wright, 2 J. & H. 647. 
 
 (r) Dixon v. Dixon, 9 Ch. Div. 587. 
 
 (s) Darkin v. Darkin, 17 Beav. 578. 
 
 (t) Rich v. Cockell, 9 Ves. 369 ; Edwards v. Oheyne, 13 App. Ca. 385. 
 
 (t() Wood V. Cock, 40 Ch. Div. 461. 
 
 \v) Mercier v. Mercier, 1903, 2 Ch. 98. 
 
 (x) Wassellv. Leggatt, 1896, 1 Ch. 557. 
 
 (y) Surman v. Wharton, 1891, 1 Q. B. 491. 
 
 (z) Co. Litt. 46 i ; Dyer, 251. 
 
 (a) 29 Car. II. c. 3, s. 26 ; Elder v. Pearson, 25 Ch. Div. 620. 
 
MARRIED WOMEN. 383 
 
 he takes as his wife's administratxjr (b), — but to his own , 
 
 use (c) . 
 
 Where a married woman had a general power of ap- Property 
 pointment over property, and she exercised the power, general to wer 
 she did not thereby (in the general case, at least) make ofappoint- 
 the appointed property assets for the payment of her debts ™®'^* "* ®" 
 in an administration of her estate; and her appointment 
 of an executor, just as it was not a disposition of her 
 separate estate (d), so it was not an exercise of her general 
 power of appointment (e). But where personal property 
 was given to a married woman for her separate use for 
 life, with remainder as she should (by deed or will) ap- 
 point, 'unth remainder to her executors or administrators, 
 the gift was held to be a gift to her absolutely for her 
 sole and separate use (/) : And now, under the Married 
 Women's Property Act, 1882, the property (if appointed 
 by her) will be assets for the payment of the married 
 woman's debts, where her separate estate would be 
 assets (gr), — even when the power to appoint is exerciseable 
 by will only (h) . Also, semble, her mere appointment 
 of executors will, where her own estate is insufficient for 
 the payment of the debts and legacies, operate as an 
 exercise of her general power of appointment to the extent 
 required for the payment of those debts and legacies (i) . 
 
 Courts of Equity were very slow to admit, that a a feme covert 
 married woman having separate property could (in her could not 
 lifetime) bind that property with her debts; but, after a bindW^ 
 time, the Courts ventured so far as to hold, that if she separate 
 
 1 •,. j_j__pj7 j_ J} 1 estate with 
 
 made a written contract for the payment oi money, — by, debts. 
 e.g., a bond under her hand and seal (/<;), — her separate 
 property should, in that case, be made liable for payment 
 of the debt; and the principle of that decision was subse- 
 quently extended to bills of exchange (I), and to pro- 
 
 (S) 29 Car. II. o. 3, s. 25 ; Elder v. Pearson, 25 Ch. Div. 620. 
 
 (c) Drew v. Leng, 22 L. J. Ch. 717. 
 
 [d) Stanton v. Lambert, 39 Ch. Div. 626. 
 («) Thurston v. Evans, 32 Ch. Div. 508. 
 
 (/) London Chartered Bank v. Lempriere, L. R. 4 P. C.'572. 
 
 [g] Wilson v. Ann, 1894, 1 Ch. 649. 
 
 (X) Turner v. Eing, 1895, 1 Ch. 361. 
 
 (i) In re Seairook, Gray v. Baddeley, 1911, 1 Ch. 151. 
 
 \k) Seatley v. Thomas, 15 Vea. 596. 
 
 {tj M'Eenry v. Davies, L. E,. 10 Eq. 88. 
 
334 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 missory notes {m), — and ultimately, to any written con- 
 Courts now tracts whatsoever (w). But the Courts still refused to 
 thi*l'ame'ex° ^°^'^ ^ married woman bound by her mere verbal agree- 
 teut that she ment, — For (it was said) the married woman's disposi- 
 afe««Mfe*Se ''^°^ °-^ '^®'^ separate estate was in the nature of the 
 may contract execution of a powBT (and only an instrument in writing, 
 acoorciingiy — "^0^1^ Operate as an execution of the power); or, if the 
 her verbal ' married woman's disposition was not like the execution 
 engagements q£ g^ power, it Operated at all events to specifically charge 
 
 now binding , i , . i. j -i./. ■ ;. t /-i. •j\ 
 
 on her sepa- her separate estate, and a written instrument (it was said) 
 rate estate. ^ifas indispensable to create such a charge : Eventually, 
 however, it was decided, that a married woman, contract- 
 ing for herself in respect of her separate estate, was 
 bound by her contract, although such contract was by 
 word of mouth only (o). 
 
 viThat separate But the Courts |still evinced the greatest aversion to 
 originally extending the liability of the separate estate, — and they 
 bound by con- held, in fact, that the general engagements of the married 
 tract o w e, .^^.qjjjj^jj (^entered into during the coverture) could be 
 enforced only against so much of her separate estate as 
 she was entitled to at the date of entering into the en- 
 gagement (and as remained at the date of entering up 
 judgment and suing out execution thereon), — and not 
 against any separate estate to which she became entitled 
 and what after the date of entering into the engagement (p): And 
 i^now'bo^und** it was not until the Married Women's Property Act, 
 under Act of 1882, that the liability of the separate estate was 
 ^^^^- extended (by s. 1, sub-s. 4), to such after -acquired estate. 
 
 Separate Also, it was Only at a very late period, that the separate 
 
 u^ie'for- estate of a married woman (committing a fraitd) was 
 meriy, for held liable to make good her fraud (g) ; and where she 
 had concurred in a breach of trust, her separate estate 
 was made liable, only if she had been an "actual actor" 
 in the breach (r) : All which rules were right enough under 
 the old law, — the fraud (or other tort) of the wife having 
 then been (in law) the fraud (or tort) of her husband, — 
 
 (ot) Bullpin T. Clarice, 17 Ves. 365. 
 
 (n) Miirraii v. TSarUe, 3 My. & K. 209. 
 
 (o) JUa/hewman's ca>,e, L. R. 3 Eq. 787. 
 
 (p) Pike V. FUzgiblwn, 17 Ch. Div. 454. 
 
 (q) Vaughan v. Vanderstegen, 2 Drew. 165, 363, 408. 
 
 (r) Sawyer v. Sawyer, 28 Ch. Div. 695. 
 
 wife's torti 
 
MARRIED WOMEN. 335 
 
 and not of herself (s) ; but, by the Married Women's tut is, now, 
 Property Act, 1882, s. 24, the married woman is now Wai'ie- 
 liable for any breach of trust or devastavit committed by 
 her, either before or after her marriage, — saving and ex- 
 cepting always where the separate estate is subject to the 
 restraint on anticipation, which is hereinafter dealt with . 
 
 It was necessary under the Act of 1882, that (the Married 
 married woman's contract having been made on or after ^°tyTct^™' 
 the 1st January, 1883 (t)) she should have had some I893,— 
 separate property at the date of entering into the con- J^'parate estate 
 tract (u), — Which being shown, it was not necessary also enlarged, 
 to show, that the wife had separate estate at the date of 
 entering up the judgment (x): But, under the Married 
 Women's Property Act, 1893 (y), every contract, which 
 (on or after the 5th December, 1893) is entered into by a 
 married woman (otherwise than as agent for her husband 
 or another) is deemed to have been entered into with 
 reference to {and so as to bind) her separate estate, — 
 whether she is possessed of separate estate at the time or 
 not; and the liability is enforceable against all the pro- 
 perty which the married woman becomes entitled to there- 
 after, and even after the coverture is ended. 
 
 In equity, no personal decree was ever made against a no personal 
 married woman (z) ; and, for example, no bankruptcy decree against 
 decree (or order for her imprisonment), under the Bank- 
 ruptcy Act, 1883 (or under the Debtors Act, 1869), would 
 have been made against her (a); but, under the Married 
 Women's Property Act, 1882 (6), a married woman Married 
 carrying on a trade separately from her husband is (in woman, 
 respect of her separate trade property) made subject to ratelyfinay^' 
 the bankruptcy laws in the same way as if she were a now te made 
 feme sole (c). However, even yet, if she is not carrying '*" "-^ ' 
 on a separate trade, she is not liable to be made a bank- 
 
 («) Wainford v. Heil, L. K. 20 Eq. 321. 
 
 (f) Turniull v. Forman, 1.5 Q. B. D. 234. 
 
 (m) P.ilUier V. Gurney, 19 Q. B. D. 519. 
 
 \x) Downe v. Fletcher, 21 Q. B. D. 11 ; Beck v. Fierce, 23 Q. B. D. 316. 
 
 (y) 56 & 57 Vict. o. 63, s. 1. 
 
 (z) Francis v. Wigzell, 1 Mad. 264. 
 
 (a) Ex parte Eoliand, L. R. 9 Ch. App. 307. 
 
 (t) 45 & 46 Viot. 0. 75, s. 1, sub-s. 6. 
 
 x{e) In re Simon, 1909, 1 K. B. 201. 
 
336 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 rupt {d), — not even when she is afterwards left a widow, 
 — ^at least upon a judgment against her husband and her- 
 self obtained on her contract made during the cover- 
 ture (e), — Secus, on a judgment obtained against her for 
 
 even yet°*' ^^^ ^^'^^ ^^^ ' ^^^°' although she may be carrying on a 
 be committed separate trade, she is not even now liable to a commitment 
 for debt. order, under s. 5 of the Debtors Act, 1869 {g); and cer- 
 
 tain other provisions of the Bankruptcy Act, 1883, which 
 .are applicable to an ordinary debtor, are still not avail- 
 able as against a married woman although trading 
 separately (A-) ; and {e.g.) a bankruptcy notice may not 
 validly issue against her (^), — excepting on a judgment 
 against her for her tort (k). 
 
 General en- The liability of a married woman upon her contract is 
 
 bmdThe'*^ a proprietary liability (I), and (for some purposes) a 
 corpus other personal liability also, — For the purpose {e.g.) of a set- 
 and^™ w?e^n °^^ °^ ^'^^^ recovered by her against costs recovered against 
 of her realty, her (m) ; and a receiver on behalf of the creditor will be 
 appointed in the case of a married woman, equally as in 
 the case of a man, — That is to say, the relief against the 
 separate estate of a /erne covert was (and still is) effectu- 
 ated (upon a judgment against her) by means of a 
 charge {n); and a receiver is appointed in aid of the 
 charge (o), and the whole corpus of the estate is liable, 
 the execution only being always limited to such separate 
 estate as she is not effectively restrained from anticipat- 
 ing {p) ; and she may be examined as to what her separate 
 estate consists of (g). And, as regards the ante-nuptial 
 debts of a wife (including her torts before marriage), the 
 liability for all these survives (in general) against her, if 
 
 (d) Bx parte Coulson, 20 Q. B. D. 249. 
 
 (e) In re Sewett, 1895, 1 Q. B. 328. 
 
 (/) In re Beauehamp, 1904, 1 K. B. 572. 
 
 (g) So'Hnson v. Li/nes, 1894, 2 Q. B. 577. 
 
 (h) In re Frances Handford, 1899, 1 Q. B. 566. 
 
 (i) In re Lynes, 1893, 2 Q. B. 113. 
 
 [k] In re Beauehamp, supra. 
 
 (l) Holtby T. Hodgsoti, 24 Q. B. D. 1 03. 
 
 \m) Pelton Brothers V . Harrison, 1892, 1 Q. B. 118. 
 
 («) Bm-silly. Tanner, 13 Q. B. D. 691. 
 
 (o) Wehb V. Stet,ton, U Q. B. D. 518. 
 
 (p) Seott V. Morlet/, 20 Q. B D. 120. 
 
 (q) Aylexford (Countess) t. G. IF. Sail. Co., 1892, 2 Q. B. 626. 
 
MAERIED WOMEN. 337 
 
 she survive her husband (whether or not the husband may 
 also have become and been liable therefor (r)). 
 
 Upon the death of the married woman, her creditors Bills for ad- 
 
 __ , • • i 1 1 1 1 ministration 
 
 may commence an action agamst her legal personal repre- of separate 
 sentative 'for the administration of her sep-arate estate, — estate. 
 the husband (even when he takes merely jure mariti) 
 being, for this purpose, her representative (s) ; and the 
 ante-nuptial debts will be provable, along with the debts 
 contracted by her with reference to her separate estate {t). 
 Also, if (being the donee of a general power of appoint- 
 ment) she exercises that power, she thereby, to the extent 
 that she exercises that power (u), renders the appointment 
 property assets for the payment of her debts contracted 
 after 'the 31st December, 1882 (x), — ^and even, semble, for 
 the payment of her debts contracted before that date (y) . 
 
 A married woman, being at liberty to dispose of her Eestraint on 
 separate property, was in danger of yielding to the soli- origin of, and 
 citations of her husband to dispose of it, — and not unfre- ie<=essity for. 
 quently did so dispose of it, to her own undoing (z) ; and 
 in order to provide against that, the Court sanctioned a 
 provision restraining her anticipation of the income: And 
 inasmuch as the separate estate was purely the creature 
 of equity, equity was well able to sanction such a restraint, 
 — Scil., because, although a similar fetter imposed on the 
 property of a man was void as repugnant (a), yet the 
 restraint on anticipation (in the case of married women) 
 was consistent with, and in furtherance of, the very object 
 of the separate estate ; and, by the law of certain places 
 {e.g., Quebec), a wife's separate property is not mort- 
 gageable at all, even for her husband's necessities (&), and 
 
 {r) Beck v. Fierce, 23 Q. B. D. 316. 
 (s) Surmanv. Wharton. 1891, 1 Q. B. 491. 
 {t) Bell V. Stacker, 10 Q. B. D. 129. 
 (m) Darley v. Hodgson, 1899, 1 Ch. 666. 
 (x) Roper v. Doncaster, 39 Oh. Dlv. 482. 
 \y) Coxen v. Rnwlani, 1894, 1 Ch. 406. 
 (z) Ellis V. Atkinson, 2 Dick. 759. 
 (a) Brandon v. MoUnson, 18 Ves. 429.' 
 (A) Gauthier's case, 1904, A. C. 94. 
 
838 
 
 THE OEIGINALLY EXCLUSIVE JURISDICTION. 
 
 The perpetui- 
 ties rule, — 
 how far ap- 
 plicable to the 
 restraint on 
 anticipation ? 
 
 Restraint on 
 anticipation,— 
 operation of. 
 
 (by the law of the Transvaal) the wife's mortgage, as a 
 surety for her husband, is hedged round with many safe- 
 guards (c). 
 
 The restraint on anticipation is commonly said to be 
 subject to the Eule against Perpetuities,— according to 
 which, no title can be validly conferred on anyone (so as 
 to vest in him or in her), unless the title will (and neces- 
 sarily will) commence and vest, if at all, in the beneficiary 
 within the period of a specified life in being or of specified 
 lives in being (when the document conferring the title 
 first operates) and the further period of twenty-one years 
 after the extinction of the specified life or of the last 
 survivor of the specified lives: But, if the title itself vests 
 (and necessarily vests) in the beneficiary within the limit 
 of time prescribed by the rule, it is difiicult to see why the 
 restraint on anticipation, which is a mere incident to the 
 title (or gift), should not be good, notwithstanding that 
 it would (unless lifted off by the Court) operate beyond 
 the limit (d): But there is a prevalent opinion to the 
 contrary (e). 
 
 The legality of the restraint on anticipation having 
 " been once established, the next question which arose was, 
 whether the restraint was confined to the actually existing 
 coverture, or extended to a subsequent marriage; and it 
 was eventually determined, that the restriction extended 
 to a subsequent marriage (/) . But, of course, the estate 
 must first be separate estate before the restraint on anti- 
 cipation can be annexed to it, — although now, where the 
 gift (by force of the Married Women's Property Acts) is 
 for the married woman's separate use, there the restraint 
 on anticipation can validly be annexed, without any 
 express creation first of the separate estate (g). And these 
 propositions may be taken to be now established, namely: 
 —That while a spinster, the female entitled to her separate 
 
 (c) Ba»k of Africa \. Cohen, 1909, 2 Ch. 129. 
 \d) Do'reilv. Dotrell, 1895, 2 Ch. 698. 
 
 {«) 16 Hals. Laws of England, on pp. 371 — 2, citing In re Femeley's 
 Trusts, 191 '2, 1 Ch. Si3. 
 
 (/) TuUett V. Armstrong, 1 Bear. 1. 
 ig) In re Zumley, 1896, 2 Ch. 690. 
 
MARRIED WOMEN. 339 
 
 estate without power of anticipation, may anticipate the 
 entirety (or any part) of her estate; but that immediately 
 upon her marriage (No. 1), the separate estate, and with it 
 the restraint on anticipation, attach and endure during 
 that coverture, as regards any separate estate then remain- 
 ing; and that upon her widowhood (No. 1) both the 
 separate estate and the restraint disattaoh; and again, 
 upon her subsequent marriage (No. 2), and subsequent 
 widowhood (No. 2); and so on taties quoties, attaching 
 and dis-attaching and re-attaching and again dis-attach- 
 ing, according as she is covert or not from time to time 
 and for the time being. 
 
 When the fund is in Court, and the married woman Funds in 
 applies for the payment out of that fund, the Court has ^^^^^^ „ot 
 to inquire, — Whether the restraint is still a continuing paid out to 
 restraint or not: And, Firstly, if the restraint is not a earned 
 continuing one, the fund will be paid out to the woman receipt, 
 on her separate receipt (A), — or to her attorney duly autho- 
 rised (i) : But, Secondly, if the contract is a continuing 
 restraint (as e.g., if the testator has said that his trustees 
 are to hold the fund for the married woman), the fund 
 will not be paid out (fc), — and that, whether the fund is 
 an income-bearing one or not (I). But if the life estate 
 of the married woman is for her separate use, and she 
 is entitled also to the absolute reversion in the fund but 
 not for her separate use, the fund will not be paid out, — 
 because (in such a case) there is no coalescence of the two 
 interests (m): But if the coalescence has once happened, 
 then, although it should have afterwards ceased, the fund 
 will be paid out(w). However, the Court will not do 
 anything by way of aiding the coalescence of the two 
 interests (o). 
 
 No particular form of words is necessary to create the ^^* words 
 restraint on anticipation; and where the trustee of settled alienation,— 
 
 Meld\.Mvans. 
 
 (h) In re Bankes, 1902, 2 Ch. S33. 
 
 (i) Stewart v. Fletcher, 38 Ch. D. 627. 
 
 (A) AcanonY. Greenwood, 31 Ch. Div. 712. 
 
 [l) In re Tippett and Newbould, 37 Ch. D. 444. 
 
 (m) Whittle v. Hemiing, 2 Phil. 731. 
 
 (n) Plowden v. Gayford, 39 Ch. D. 622. 
 
 [n] Harrison v. Harrison, 40 Ch. D. 418. 
 
 z2 
 
340 
 
 THE OKIGINALLY EXCLUSIVE JURISDICTION. 
 
 What words 
 ■will not re- 
 strain aliena- 
 tion, — Parkei 
 y. White. 
 
 property was directed to receive (during the lady's life) 
 the income " when and as it became due," and to pay 
 it to her for her separate use; and it was expressed, that 
 her receipts {after the income should have become due) 
 should be valid discharges for it, — She was held to be 
 restrained from anticipating the income (p). And, on 
 the other hand, where a testator bequeathed a sum of 
 stock in trust for the separate use of his wife for her life, 
 and directed that it " should remain (during her life) and 
 be (under the order of the trustees) made a duly adminis- 
 tered provision for her, and the interest given to her, on 
 her -personal appearance and receipt," — It was held, that 
 the widow (who had married again) was not restrained 
 from alienating her interest in the stock (q), — Because, 
 generally, where expressions are used giving the wife a 
 right to receive separate property " with her own hands 
 from time to time," — or so that her receipts " alone for 
 what shall be actually " paid into her own proper hands 
 shall " be good discharges," — these expressions are only 
 an " unfolding " of what is implied in the separate use (r), 
 and do not suggest any restraint on anticipation. 
 
 In what cases 
 the trust 
 would have 
 been wholly 
 destroyed, — 
 so as not to 
 attach on 
 marriage. 
 
 Inasmuch as a married woman has (when discovert) 
 the full power of alienation over her separate estate, — 
 even where it is coupled with the restraint on anticipation, 
 — The question sometimes arises, whether she has not (by 
 her intervening acts before coverture or during a dis- 
 coverture) acquired the property unfettered with the re- 
 straint: And where stock was bequeathed to a woman 
 for her separate use without power of anticipation, — the 
 bequest being to the woman direct, and not to a trustee 
 for her ; and she (being discovert) sold the stock, spent 
 a pOiTtion of the proceeds, and invested the rest in shares 
 and in bonds, — It was held, that (by so doing) she had 
 determined the separate use, and with it the restraint on 
 anticipation (s), — So that the administrator of the hus- 
 band became entitled to the whole fund (although the 
 wife survived): But, now, if the married woman should 
 
 {p) Bland V. Dawes, 17 Ch. Div. 794. 
 (q) III re Ross's Trusts, 1 Sim. N. S. 176. 
 (V) Parkes v. White, 11 Ves. 222. 
 («) Wright V. Wright, 2 J. & H. 647. 
 
MARRIED WOMEN. 341 
 
 (before coverture or during a discoverturo) make any such 
 disposition of the corpus or capital of her separate estate, 
 — and should afterwards marry or re-marry, — her re- 
 maining property will, semble, become her separate estate 
 again, hy virtue of the Married Women's Property Act, 
 1882. And it is convenient to mention here, that if a 
 married woman (restrained from anticipation) purports 
 to bar her estate-tail (and to limit the fee simple to her- 
 self), she may well do that (t), the disentailing deed being 
 a mere re-creation of her old estate (u), discharged of the 
 fetters of the entail. 
 
 Even a Court of Equity could not (apart from statute) Court of 
 have dispensed with the restraint on anticipation : 'There- not dispense 
 fore, where a testator gave a legacy to a married woman, •with the fetter 
 upon the express condition that she should (within twelve 
 months) execute a certain conveyance of her separate 
 estate (which was subject to the restraint against antici- 
 pation), — It was held, that the Court had no power to 
 release the property from that restraint, even though it 
 was for the married woman's benefit to have done so (x) . 
 But under the specific provisions of an Act of Parlia- 
 ment, the Court might have released the restraint for ^f"^*' now,— 
 the purposes of the Act; and, under the Conveyancing veyancing ' 
 Act, 1881, s. 39, the Court may,— if it thinks fit, but not ^ot, 1881; 
 otherwise (y), and if it is made to appear to be for the 
 benefit of the married woman, and if she consent, — now 
 lift off the restraint, either in whole or in part (2), or sub- 
 ject to any conditions it thinks fit (a) : And the Court may, 
 accordingly, now lift off the restraint, — for the purpose of 
 effecting some particular mortgage or other definite dis- 
 position of her property (6), or for the purpose of some 
 .compromise (c) ; and if (in such a case) the money or fund 
 (so released of the restraint) is applied in payment of the 
 
 (t) Cooper V. MacdonaM, 7 Ch. Div. 288. 
 
 («) Martin d. TregonweU v. Strahan, i Bro. P. C. 486. 
 
 (x) Smith V. Luias, 18 Ch. Div. 531. 
 
 (y) In re Pollard's Settlement, 1896, 2 Ch. 552. 
 
 (z) Hodges v. Hodges, 20 Ch. Div. 749. 
 
 (a) In re miner's Settlement, 1891, 3 Ch. 547. 
 
 \b) In re Warren's Settlement, 52 L. J. N. S. Ch. 928. 
 
 («) Bayer v. Maclean, 1903, 1 Ch. 848. 
 
S42 
 
 THE OKIGINALLY EXCLUSIVE JURISDICTION. 
 
 debts of the husband, the wife is not entitled to recoup- 
 ment by or to any indemnity from the husband {d) . 
 
 And undei 
 Married 
 Women's 
 Property Act, 
 1893, and 
 Trustee Act, 
 1893. 
 
 Also, now, by the Married Women's Property Act, 
 1893, s. 2, the Court may order to be paid (out of separate 
 estate subject to the restraint) the costs payable by a 
 married woman of her vexatious litigation (e); and by 
 the Trustee Act, 1893, s. 45, the Court may impound 
 separate estate (subject to such restraint), in order to make 
 good a loss occasioned to the trust estate by the married 
 woman's breach of trust: But the Court will not readily 
 remove the restraint for either of these two purposes (/), 
 • — Soil., because it is the duty of the trustees (and also of 
 the Court) to protect the inarried woman against her- 
 self. Also, any special Act of Parliament (enabling the 
 Court to interfere with the restraint on anticipation) must 
 apparently specifically so provide : For example, the 
 Matrimonial Causes Act, 1884 {g), which contains no such 
 specific provision, does not (by its mere general provi- 
 sions, enabling the Court to assign an allowance to the 
 husband in lieu of enforcing by attachment a decree for 
 the restitution of his conjugal rights), enable the Court 
 to interfere with any separate property which is subject 
 to the restraint {h). But, in a variation of the settlement, 
 that Court may, semble, discharge the restraint (i) . 
 
 Arrears of 
 separate 
 estate, — 
 liability of. 
 
 As regards the "arrears" of separate estate (restrained 
 from anticipation), it appears to be now settled (fc), that 
 a judgment obtained against a married woman may be 
 enforced against arrears accrued due at or before the date of 
 the judgment (although they have not yet come into her 
 actual possession); but that arrears accruing due after 
 the judgment cannot be got at by the judgment credi- 
 tor {I), — any more than they can be got at by the 
 
 [O) Faget v. Faget, 1898. 1 Ch. 47, 470. 
 
 («) Pawleij V. Pavihy, 1905, 1 Ch. 693. 
 
 (/) Bolton V. Curre, 1895, 1 Ch. 544. 
 
 [g) 47 & 48 Viot. c. 68. 
 
 (h) Mkhellv. Michell, 1891, P. 208. 
 
 (i) Churchward v. Churchward, 1910, P. 196. 
 
 (h) Sood-Barrs v. Heriot, 1896, A. C. 174. 
 
 (/) BoUtho V. Oidky, 1905, A. C. 98. 
 
MARRIED WOMEN. 343 
 
 voluntary aliene© of such separate estate (m), every pro- 
 spective voluntary charge (equally with every prospective 
 charging order) being equally void(«); and a judgment 
 against the married woman when a widow, if the judg- 
 ment be ohtained on a contract entered into during the 
 coverture, is, now, on the same footing' exactly (o). 
 
 Sub-sect. 2. — The Effects of Recent Legislation . 
 
 Under the 20 & 21 Vict. c. 85 (Divorce Act), s. 21,— as 20&21 vict 
 amended by the 21 & 22 Vict. c. 108, s. 8, — if a wife is separate estate 
 " deserted" {p) by her husband, she may obtain (as wler. 
 regards her property) a protection order against her bus- ^^' esertiou. 
 band and his areditors, — and (in case of the subsequent 
 cohabitation of the husband and wife) the property will 
 (under such order) be held for her separate use (g) ; but 
 she still continues, of coarse, a married woman after the 
 making of such protection order (equally £is she would 
 continue a married woman after a voluntary separa- 
 tion (r)), and her general separate estate (with or with- 
 out the restraint on anticipation) also continues (s) . Also, (2) Judicial 
 by the 20 & 21 Vict. c. 85, s. 25, if a married woman =«P*'^*«°"- 
 is "judicially separated" she is to be deemed a feme sole 
 Eis regards her property acquired subsequently to the 
 judicial separation (i). And as well in the case of a 
 protection order as also in the case of a judicial separation, 
 the married woman will be liable (on her contracts subse- 
 quent), as if she were a feme sole (m) ; and her husband 
 will not be liable at all for her torts subsequent (x) . 
 
 (m) Stanley v. Stanley, 7 Ch. Div. 589. 
 
 («) Ellis V. Johnson, 31 Ch. D. 632. 
 
 (o) Brovm y. Dimbleby, 1904, 1 K. B. 28. 
 
 (p) Failes v. Failes, 1906, P. 326. 
 
 (q) Nicholson T. Drury Buildings, 7 Ch. Div. 48. 
 
 \r) St. John v. St. John, 11 Ves. 525 ; Mackenzie y. Edwards- Moss, 1911, 
 1 Ch. 578. 
 
 (s) mil T. Gooper, 1893, 2 Q. B. 86. 
 
 (t) Dawes v. Greyke, 30 Ch. Div. 500 ; Waite v. Morland, 38 Ch. Div. 
 135. 
 
 («) Brandon v. Stiff hes, 1898, 1 Ch. 529. 
 
 {x) Bark v. Kingseote, 1900, 2 Ch. 585. 
 
S44 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Variation of 
 settlement. 
 
 The effect of an actual "divorce" (or of a decree of 
 " nullity ") is, of course, to make the woman a feme sole ; 
 and, in such a case. Firstly, her "settled" property may 
 be dealt with by a variation of the settlement (y) ; and. 
 Secondly, her "unsettled" property may be diversely 
 settled (2) : And the Court interposes in that way between 
 the spouses, whether the husband (a) or the wife (b) is 
 the offender, but not, semble, where both are offenders (c), 
 —nor after the death of either of them where there are no 
 children (d) . And the principle on which the Court 
 proceeds, in all such cases, is this, namely, — to secure (as 
 far as possible) to the innocent party (and to his or her 
 children) all the like advantages from the property which 
 they might have reasonably expected from it, if the 
 marriage relation had not been interrupted (e), — and the 
 variation may therefore be made to extend {e.g.) to 
 depriving the offending husband of any share in the 
 settled property which be may have taken as administrator 
 of a decefised child of the marriage (/) . 
 
 41 Vict. c. 19, 
 s. 4, — separate 
 estate under. 
 
 49 & 50 Vict. 
 c. 52,- 
 Beparate main- 
 tenance under. 
 
 Under the 41 Vict. c. 19 (Matrimonial Causes Act, 
 1878), s. 4, if a husband w£ts convicted, summarily or 
 otherwise, of an aggravated assault (within the meaning 
 of the statute 24 & 25 Vict. c. 100, s. 43), the magistrate 
 before whom he was so convicted, if satisfied that the 
 future safety of the wife was in peril, might have ordered 
 that the wife should be no longer bound to cohabit with 
 her husband {g), — and might (at the same time {h)) have 
 ordered the husband to pay his wife a weekly sum; and 
 under the 49 & 60 Viet. c. 52 (Married Women's Main- 
 tenance in Case of Desertion Act, 1886), a married 
 woman deserted by her husband (^) might have summoned 
 
 (y) Allcardv. WaUm; 1896. 2 Oh. 369. 
 
 [z] Zorriman V. Lorr'tman. 1908, P. 282. 
 
 (a) Smith V. Smith. 12 P. Div. 102. 
 
 (5) Midwinter v. Midwinter, 1R93, P. 93. 
 
 (c) Constantinidi v. Comtantinidi, 190.5, P. 253. 
 
 {d) Thomson v. Thomson, 1896, P. 263. 
 
 (f) Hartopp V. Smtopp, 1896, P. 65. 
 
 (/) Hlood V. Blood, 1902, P. 78. 
 
 {(/) JT'oodv. Wood, lOProb. Div. 172. 
 
 (it) Woodheadv. TVoodhead, 189.i, P. 343. 
 
 (i) Reg. v. Zeresche, 1891, 2 Q. B. 418. 
 
MARRIED WOMEN. 
 
 345 
 
 him before a magistrate, and the magistrate might have 
 ordered him to pay her a weekly sum (not exceeding two 
 pounds) proportioned to his means and to the destitution 
 of the wife, — the magistrate's order being made enforce- 
 able as an affiliation order: 
 
 Both whi-ch Acts have now been repealed, — so far as 58 & 59 Vict, 
 their provisions are above stated, — by the Summary "• ^^'"7 ^^j^. 
 Jurisdiction (Married Women) Act, 1895 (k); and it has tenance under, 
 now been provided, by the repealing Act, as follows, that 
 is to say: — That upon such conviction of the husband 
 as aforesaid, — and also in case the husband shall desert 
 his wife (l), — and also in case of persistent cruelty by 
 the husband (or of wilful neglect by him to provide 
 reasonable maintenance for her and the children, whereby 
 she is driven into leaving him and living apart from him), 
 — The Court of summary jurisdiction (or, in case of con- 
 viction on indictment, the High Court) may order, that 
 the wife shall be no longer bound to cohabit with the 
 husband, and that the husband do pay to the wife a weekly 
 allowance not exceeding two pounds (enforceable as an 
 affiliation order), — Which weekly allowance may also 
 afterwards be either increased or diminished, or wholly 
 discharged, — and will be, ipso facto, discharged, in case 
 the wife voluntarily resumes cohabitation with the hus- 
 band (m), or commits adultery (ti) : And, on these pro- 
 visions of' this statute, it has been held, that the order 
 of the Court has all the effect of a "judicial separation" 
 (as regards the future status of the wife); that the co- 
 habitation which is broken off need not have been con- 
 tinuous (o); that proof of means must be given before 
 any allowance will be made (p) ; and that the application 
 for the order must be made within six months of the 
 act entitling the wife to make the application, — desertion 
 being, however, deemed a continuing act (q), although 
 cruelty (or wilful neglect) is not so (r) . The order 
 
 (/,:) 58 & 59 Viet. o. 39. 
 
 (1) Dnddv. I)odd, 1906, P. 189. 
 
 (m) Baddon v. Baddon, 18 Q. R. D. 778. 
 
 (n) Enther t. Sufher, 1903, 2 K. B. 270. 
 
 (o) Bradahaw T. Bradshaw, 1897, P. 24. 
 
 {p) Earnshaw v. JUarnshaw, 1896, P. 160. 
 
 {q) Seard v. Seard. 1896, P. 188. 
 
 {r) Mlis-7. Ellis, 1896, P. 251. 
 
346 
 
 THE ORIGINALLY EXCLUSIV:^ JURISDICTION. 
 
 Married 
 Women's 
 Property Act, 
 1870,— separate 
 estate under. 
 
 Extent of 
 husband's 
 liability for 
 debts, under 
 Harried 
 
 (where it is made by the justices) is appealable to the 
 Divoroe Division (on any matter of law), — but the 
 justices need not (for that purpose) state a case, it being 
 sufficient if the justices' clerk supply a note of the case 
 to the Court, showing the grounds for making the 
 order (s) . It is to be observed, however, that there can 
 be no "desertion," where there is a subsisting separa- 
 tion deed (t) ; and the desertion may otherwise be ex- 
 cusable, — and so not count (m); and it is also to be 
 observed, that for "habitual drunkenness" in either of 
 the spouses, the other is exempted from the duty of co- 
 habiting with him or with her (x) . Also, " cond-onation " 
 on the wife's part wholly defeats her rights under the 
 Aot(?/). 
 
 Under the Married Women's Property Act, 1870 (z), 
 which came into force the 9th day of August, 1870, it 
 was enacted (briefly) as follows: — 
 
 By s. 1, that the wages and earnings of any 
 married woman, acquired or gained by her separately 
 from her husband (and all investments of such wages and 
 earnings) should be her separate property; 
 
 By s. 7, that where any woman, married after the 
 passing of the Act, should during her marriage become 
 entitled to any jDersonal property as next of kin of an 
 intestate, or to any sum of money (not exceeding £200) 
 under any deed or will, such property should be her 
 separate property; 
 
 And by s. 8, that where any freehold copyhold .or 
 customary-hold property should descend upon any woman 
 married after the passing of the Act, the rents and profits 
 of such property should be her separate property (a), — 
 Scil., for her life only (b): Also, by s. 12 of the Act, a 
 husband was exempted from all liability for the debts of 
 his wife contracted before marriage, — the wife being 
 made exclusively liable therefor, to the extent of her 
 
 («) Cobb V. Cobb, 1900, P. 145. 
 
 (i!) Piper V. Piper, 1902, P. 198. 
 
 («) Frowd V. Fmcd, 1904, P. 177. 
 
 (x) Licensing Act, 1902 (2 Edw. VII. u. 28), s. 5. 
 
 (2^) Williams v. Williams, 1904, P. 145. 
 
 (2) 33 & 34 Vict. 0. 93. 
 
 («) King v. Voss, 13 Ch. Bit. 604. 
 
 (i) Toovey v. Turner, 1907, 1 Ch. 475. 
 
MAREIED WOMEN. 347 
 
 separate property; but that exemption of the husband -womeu's 
 proving mischievous, therefore, by the Married Women's Property- 
 Property Act, 1874 (c), which came into force the 30th 1^^187^* 
 day of July, 1874, the husband and wife might again 
 have been jointly sued for any debts of the wife con- 
 tracted before the marriage, — ^^and the husband was again 
 made liable therefor, but to the extent only of the assets 
 (of the wife) in the Aot specified (the onus being on the 
 husband to show no such assets {d)). 
 
 Under the Married Women's Property Act, 1882 (e). Married 
 
 — which came into operation on the 1st day of January, property 
 
 1883 (s. 25), but which has of course no operation out Act, 1882,— 
 
 of the jurisdiction,~it is provided (in substance) as ^^^^^te estate 
 follows: — 
 
 By s. 2, every woman marrying on or after the 1st What pro- 
 day of January, 1883, shall hold as her separate property separate— ^ 
 all real and personal estate which shall either belong to q^ -^ ^^^^ „( 
 her at the time of the marriage, or which shall come to marriage on 
 her after the marriage (including the wages and earnings jl^u^y, °1883. 
 of any separate -employment, — and the gains of any 
 literary, artistic, or scientific skill, — carried on or exer- 
 cised by her separately from her husband); and, by s. 5, (2) in case of 
 every woman married before the 1st day of January, marriage 
 1883, shall hold as her separate property all real and date^^ * 
 personal estate, " her title to which (whether vested or 
 contingent and whether in possession, reversion, or re- 
 mainder (/)), shall accrue " on or after the 1st day of 
 January, 1883 (including such wages, earnings, and gains 
 as aforesaid) : It is to be noted, however, that a mere spes 
 successionis is not considered as a " title accrued" within 
 the meaning of this section (for the purposes of the 
 section (5^) ) ; and further, that the title which accrues Title, accrual 
 upon the exercise of a power of appointment (whether of,— undw 
 general or special) is deemed in law to have accrued, — as ' 
 
 from the date of the operation of the appointment (and 
 not as from the date of the instrument giving the 
 
 (e) 37 & 38 Vict. c. 50. 
 
 (d) Matthews V. Whittle, 13 Ch. D. 811. 
 
 (e) 45 & 46 Vict. o. 75. 
 
 (/) Reid-v. Slid, 31 Ch. Div. 402. 
 Ig) StoekUy v. Pwrsom, 45 Ch. Div. 51. 
 
348 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Deposits, 
 consols, 
 Government 
 annuities, 
 stocks, 
 shares, &o. 
 (1) When to 
 be separate 
 property.- 
 
 (2) When not 
 to be separate 
 property. 
 
 power (^)), the prior accrued interest being "defeated" 
 by the exercise of the power {i). And it is convenient 
 to also note here, — ^as regards covenants to settle property, 
 — that if the covenant is to settle a fee simple remainder 
 expectant on an estate tail; and the estate tail is barred, 
 and the resultant fee simple descends upon (or comes to) 
 the covenantor, — the fee simple estate (so descending 
 upon him) is not the old fee simple remainder (which 
 has been extinguished), — and therefore is not caught by 
 the covenant (fc) : Seeus, where the old title remains, only 
 bettered (l). 
 
 By ss. 6 and 7, — All deposits in post-office or other 
 saving-banks (or in any other banks), and all consols, 
 &o. &c., on or after the 1st day of January, 1883, standing 
 in the sole name of a married woman, — or (by s. 8) in her 
 name jointly with any other person (other than her hus- 
 band), — are to be deemed her separate property, — Soil., 
 until the contrary is shown; and the liability (if any) 
 attaching thereto is to be incident to the married woman's 
 separate estate only (s. 9); but no corporation or com- 
 pany is (merely by the Act) either obliged or authorised 
 to accept or admit a married woman as a holder of its 
 stock or shares (s. 7). Also, any of the aforesaid invest- 
 ments which have been made with the husband's moneys 
 and without his consent, are to remain the husband's pro- 
 perty, — and if made in fraud of the husband's creditors, 
 are void as against his creditors (s. 10). 
 
 Married 
 woman, 
 having sepa- 
 rate estate, 
 may contract, 
 and incur 
 liabilities like 
 a man; 
 
 By s. 1, sub-ss. 2, 3, and 4, provided only she had 
 separate estate at the time (m), — and it was separate estate 
 which she might reasonably be deemed to contract with 
 reference to (w), — a married woman was rendered capable 
 of contracting, — and of contracting even with her hus- 
 band (o), — so as to bind her separate estate; and every 
 
 (h) In re Vizard's Trusts, L. R. 1 Ch. App. t 
 
 (i) Xovett V. Lovett, 1898, 1 Ch. 82. 
 
 (k) Smith T. Osborne, 6 H. L. Ca. 375. 
 
 [1) Noel V. liewlay, 3 Sim. 103. 
 
 (m) PalUser v. Gurney, 19 Q. B. D. 519. 
 
 («) Harrison v. Harrison, 13 Prob. Div. 180. 
 
 (o) Butler v. Butler, 16 Q. B. D. 374. 
 
MARRIED WOMEN. 349 
 
 contract entered into by her was to be prima facie con- 
 sidered a contract entered into by her in respect of her 
 separate estate: And, now, by the Married Women's Pro- 
 perty Act, 1893 (56 & 57 Vict. c. 63), s. 1, every contract 
 which after the 5th December, 1893, is entered into by a 
 married woman (otherwise than as her husband's agent (p)) 
 is a contract binding on her separate estate, whether she 
 has &r has not any such estate at the date of the contract ; 
 and the contract binds all her separate estate, luhether 
 then present or future, and all property which she there- 
 after (while discovert) is entitled to (q) . 
 
 By s. 1, sub-s. 1, of the Act of 1882, a married woman and may make 
 might also have made a will; but her will (made during aman'^ " 
 coverture) operated only on the separate estate which she 
 then was (or afterwards during the coverture became) 
 possessed of or entitled to, — and required therefore to be 
 re-executed by her when she became discovert, if it was 
 to dispose of property acquired after the coverture had 
 come to an end (r). But, now, by the Act of 1893, s. 3, and her will 
 
 jT 'iij? 'J /jj" i\ now operates 
 
 the Will 01 a married woman (made during coverture) exactly like 
 is to be construed, with reference to the real and personal tlie will of 
 estate comprised in it, as speaking and taking effect from 
 the death of the testatrix, equally as (under s. 24 of the 
 1 Vict. c. 26) the will of a man would be construed; and 
 words of appointment may (for this purpose) be con- 
 strued as words of bequest (s) . Also, the testatrix need 
 not have any separate estate at the date of making her 
 will; and she need not re-execute her will, after she is 
 left a widow; and all these provisions apply to the wills 
 of married women who shall die after the 5tli December, 
 1893 (i). But, nota bene, where any specific disability 
 has been imposed (by special Act) on a married woman's 
 power of devise or of bequest, that specific disability con- 
 tinues notwithstanding these provisions (m) : Secus, where 
 
 (p) Paquin v. Beauclerk, 1906, A. C. 148. 
 
 \q) SoftlawY. Welch, 1899, 2 Q. B. 419. 
 
 (r) Cuno V. MamAeld, 43 Ch. Div. 12. 
 
 (s) In re James, Sole v. Bethvne, 1910, 1 Ch. 157. 
 
 (t) In re Wylie, 1895, 2 Ch. 11«. 
 
 («) Clements v. Ward, 35 Ch. Div. 5S9. 
 
3^0 
 
 THE ORIGINALLY EXCLUSIVE JDEISDICTION . 
 
 Married 
 woman may 
 sue and be 
 sued alone : 
 
 and, being a 
 trader, may 
 be made a 
 bankrupt. 
 
 there has been a subsequent special statute dealing specifi- 
 cally with the disability {x) . 
 
 By s. 1, sub-s. 2, of the Act of 1882, a married woman 
 may now sue or be sued either in contract or in tort, — 
 as if she were a feme sole, and without her husband being 
 joined either as a co-plaintiff or as a co-defendant with 
 her; and the costs and damages recovered by or against 
 her, go to increase or (as the case may be) to diminish 
 her separate estate, — and are accordingly liable to be 
 attached under a garnishee order (?/). And, by s. 1, 
 sub-s. 5, if (but only if) she carries on (or has carried 
 on {z)) any trade separately from her husband, she is (in 
 respect of her separate property, and the debts incurred in 
 such trade) liable to the bankruptcy laws (a) . And all 
 these liabilities of a married woman (on her contracts 
 entered into subsequently to the Act), extend as well 
 to her separate estate as also (by s. 4) to any pro- 
 perty subject to a general power of appointment which 
 she may have exercised by her will. But her ap- 
 pointment property (being property over which she has 
 a general power of appointment, and which power she has 
 not exercised) will not be liable in the event of her bank- 
 ruptcy (6). Also, a committal order cannot be made 
 against a married woman, even if she be proved to have 
 had (or to have) the means to pay (c), — Unless in respect 
 of debts {e.g., poor rates) the recovery of which is (by 
 statute) made specifically enforceable by committal {d) . 
 An attachment may, however, issue against a married 
 woman, to enforce payment into Court (e) . 
 
 Her claim as By s. 3 of the Act of 1882, if the married woman lends 
 her'own'bus- °^ entrusts any separate property to her husband, — Scil., 
 band, being in connection with his trade, and not otherwise (/), — and 
 
 a bankrupt. 
 
 (x) Douglas v. Simpson, 1905, 1 Ch. 279. 
 (y) Eoltby t. Hodgson, 24 Q. B. D. 103. 
 (z) In re ff'orsley, 1900, 1 Q. B. 309. 
 (a) Ex parte Lester, 1893, 2 Q. B. 113. 
 (A) Ex parte Gilchrist, 17 Q. B D. .')21. 
 (c) BraycottY. Harrison, 17 Q. B. D. 147. 
 {d) In re Elizabeth Allen, 1894, 2 Q. B. 924. 
 (e) Turnhull v. Nii-hnlas, IHQO. 1 Ch. 180. 
 (/) In re Clarke, 1898, 2 Q. B. 330. 
 
 Cannot be 
 compelled to 
 exercise, being 
 bankrupt, 
 her general 
 powers, — 
 
 and cannot 
 be committed. 
 
MARRIED WOMEN. 361 
 
 he becomes bankrupt, or dies insolvent {g), — The separate 
 property is to be treated as assets of the husband, and the 
 wife is (in such case) to have only a right of proof agains,t 
 her husband's estate as a creditor for it, and her right of 
 proof is posterior to the claims of the other creditors of 
 the husband Qi) . But that provision does not interfere 
 with the wife's right of " retainer " {where she is entitled 
 to such right (i)); nor is it applicable to a loan made by 
 a married woman to a firm in which her husband is a part- 
 ner (fc); nor does it invalidate any "security" the wife 
 may have taken (Z), or her right as a surety, where (as 
 surety for her husband) she ha-s mortgaged her estate (m) . 
 
 By s. 24 of the Act of 1882, the word "contract" is Her position 
 to include (for the purposes of the Act) the "acceptance" trixorad- " 
 of any trust (or of the office' of executrix or administra- ministratrix. 
 trix), — So that the liability of the separate estate now 
 extends to any breach or trust (or devastavit) committed 
 by such married woman, — and whether before or after her 
 marriage, — and her husband (provided he have not inter- 
 meddled) is not now to be liable therefor : All which is an 
 entire inversion (and repeal) of the old law, — For (by the 
 old law) the husband of a married woman (who was a 
 trustee or an executrix or administratrix) was liable {n), — 
 and she herself (in respect of her separate estate) was not 
 liable (o), — for her breaches of trust (and devastavits) . 
 But a husband still remains liable for his wife's other 
 torts, — Scil., where (and only where) he used to be liable 
 for them {p), — as, for example, his wife's frauds {q), 
 libels (r), &c. And, nota bene, the action is against the 
 husband and wife, and abates on the wife's death (s), — 
 or on her judicial separation (t). 
 
 (a) Tarnv. Emmerson, 1895, 1 Ch. 652. 
 (/() Ex parte District Bank, 16 Q B. D. 700. 
 ()■) Woodhead v. Ambler, 1905, 1 Ch. 697. 
 (/c) Ex parte Nottingham, 19 Q. B. D. 88. 
 (I) Ex parte Shiel, 4 Ch. Div. 789. 
 {m) Ex parte Gronmire, 1901, 1 Q. B. 480. 
 (») Bnlinghrolce y. Ker, L. R. 1 Exch. 222. 
 (o) Wainfordy. Neil, L. R. 20 Eq. 321. 
 Ip) In re Beauchamp, 1904, 1 K. B. .572. 
 (q) Earle v. Eingxcote, 1900, 2 Ch. 585. 
 (r) Beaumont v. Kaye. lt<04, 1 K. B. 292. 
 (s) Capely. Powell, 17 C. B. N. S. 743. 
 [t] Cuenod v. Leslie, 1909, 1 "K. B. 880. 
 
352 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Executor And here it is to be noted, as regards the " acceptance. " 
 
 de son tort. ^f ^^ executorship or trust, that an executor who ad- 
 ministers before obtaining probate, is regarded simply as 
 an executor de son tort, — and he (and also his estate) is 
 liable accordingly; and any company which (before pro- 
 bate) pays to such an executor any dividends on the shares 
 of the deceased, is also an executor de son tort(u), — 
 Because, generally, any one acting under an executor who 
 cannot show the probate, is liable as an executor de son 
 tort; and the mere circumstance, that (by reason of the 
 death of the executor) probate is never obtained by him, 
 although he intended to obtain it, is no excuse, either to 
 the company or to other the person aforesaid (x) ; but the 
 probate (subsequently obtained) cures anything that was 
 merely informal before, on being ratified by the duly con- 
 stituted legal personal representative (y) . 
 
 By s. 18 of the Act of 1882, a married woman, who is 
 
 an executrix administratrix or trustee, is to be regarded 
 
 as a feme sole, — So that her husband need not now be a 
 
 party to the administration bond given by his wife (z) : 
 
 Wife's ao- And Seeing that the married woman is competent (of 
 
 knowledged herself alone) to execute the trust, — it followed, that the 
 
 require"for wife's deed Conveying the trust property (whether real 
 
 trust real estat© or personal estate) was good without acknowledg- 
 
 no longer, ment, and therefore without her husband's concurrence 
 
 required. jjj such deed, — ScU., Because, if he concurred, he would 
 
 be a co-cormeying party, and {e-x hypothesi) he had no 
 
 estate or interest to convey ; and that view (sifter a pitiful 
 
 succession of decisions to the contrary (a)) has now been 
 
 declared by statute (&) to be the correct view. 
 
 Ajite-nuptiai By s. 13 of the Act of 1882, as regards all debts con- 
 w1f?iii^l'e'~' tracted (or liabilities incurred), and all contracts (or torts) 
 for; andhus- entered into (or committed), by a married woman before 
 
 band liable 
 
 («() The New York Breweries case, 1898, 1 Q. B. 205. 
 (x) Sharlmd v. Mi'don, 5 Ha. 469. 
 («/) In re Watson. 18 Q, B. T> 116. 
 (z) He Harriet Ayres, 8 Prob. Div. 168. 
 
 (a) In re Earkness and AUsopp, 1896, 2 Ch. 358 ; In re West and Hardy, 
 1904, 1 Ch. 145. 
 
 {b) 7 Edw. VII. c. 18, B. 1. 
 
MARRIED WOMEN. 353 
 
 her marriage, — she is to continue liable (in respect of and concurrently, 
 to the ext&nt of her separate property) for ail sums re- e°teQt*? 
 covered against her, and also for all the costs of suit: 
 And, by s. 14, her l).usband also continues liable therefor, 
 but not further or otherwise than to the extent of the 
 property (belonging to his wife) which he shall have 
 acquired {or become entitled to) from or through his wife, 
 — after deducting any payments already made by him 
 (and any sum for which judgment may have "been already 
 recovered against him), in respect of any such debts 
 liabilities contracts or torts : And (as betvi^een the husband 
 and wife) the separate estate is, prima facie, to be deemed 
 primarily liable therefor (s. 13). Accordingly, the plain- 
 tiff may sue both husband and wife, — jointly or solely 
 (s. 15); and the judgment is a personal judgment against 
 the husband to the extent of his liability, and a pro- 
 prietary judgment against the wife to the extent of her 
 separate property (c) . 
 
 By 8. 12 of the Aot of 1882, every married woman (in Hemedies 
 respect of her separate property) may, in her own name criminS) of 
 pursue, against her husband and also against third married 
 parties, all civil remedies {d) for the protection and ^°^"y ^nd 
 security of her separate property, — giving also (if re- protection oi 
 quired by the exigencies of the suit) an undertaking in ^^^'^4**'^ 
 damages (e); and she may also pursue any criminal 
 remedies that may be applicable. But, as regards 
 criminal proceedings, these are not to lie by the wife 
 against her husband, while they are living together (nor 
 in respect of any act done by the husband, while they 
 were living together, and he was not on the point of 
 deserting her); and (subject to that) he may prosecute 
 her, being the offender (/), — wherever she might prose- 
 cute him, being the offender (s. 16); and in all such 
 criminal proceedings, the wife may give evidence against 
 the husband, and (under the Marrisd Women's Property 
 Act, 1884 {g)), the husband against the wife. But, ex- 
 
 (c) Goatley v. Jones, 1909, 1 Ch. 657. 
 
 [d) Lamer v. Lamer, 1905, 2 K. B. 539. 
 («) Pike V. 0<we, 1893, W. N. p. 91. 
 (/) Rex V. Jimes, 1902, 1 E. B. 540. 
 Ig) 47 & 48 Vict. o. 14. 
 
354 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Summary 
 remedy, in 
 case of dis- 
 putes between 
 husband and 
 wife, regard- 
 ing alleged 
 separate 
 property. 
 
 oepting as incident to the property of either, a wife may 
 not sue her husband (or he her) for a tort (h). 
 
 By 8. 17, any question between husband and wife (re- 
 garding the wife's separate property, or what she alleges 
 to be such) may, at the suit of either party, — or (in the 
 case of stocks and shares) at the suit of the bank corpora- 
 tion or company, suing as a stakeholder only and not 
 otherwise, — be settled without suit, — On an application 
 (by summons or otherwise) to the High Court, or to the 
 County Court (and, as regards the County Court, irre- 
 spectively of the amount or value of the property in 
 question); and the Court may make such order or direct 
 such inquiry as it thinks fit; and the order is appealable 
 in the usual way; and the proceedings in the County 
 Court may be removed into the High Court, when the 
 value of the property in question is beyond the limit 
 (irrespectively of the Act) of the County Court juris- 
 diction. 
 
 Wife's main- 
 tenance of 
 pauper hus- 
 band, and of 
 her children 
 and grand- 
 children, &c. 
 
 By s. 20 of the Act of 1882, a married woman (having 
 separate estate) is liable to the guardians of the poor, 
 to maintain her husband becoming chargeable to the 
 parish; and by s. 21, is liable (but concurrently with her 
 husband) to maintain her children and grandchildren 
 also (i), — and also, now, her father or her mother (fc). 
 
 Married By s. 23, the legal personal representative of a married 
 
 persouafre?'^' woman (having separate estate) has (in respect of such 
 
 preaentative, estate) the Same rights and liabilities as the married 
 
 —position of. -^voman if living would have. 
 
 Policies of By s. 11 of the Act of 1882, a married woman having 
 
 effecTed'bT'"^' Separate estate may effect a policy of assurance for her 
 
 married own Separate use, and either on her own life or on that 
 
 herh'iSbaudv °^ ^^^ husband; and she may also insure her own life (as 
 
 may also a husband his own life), expressly for the benefit 
 
 of her (or his) husband (or wife), — with or without her 
 
 (or his) child or children, or any of them; and for any 
 
 {h) Rpg. T. London {Lord Mayor), 16 Q. B. D. 772. 
 (i) Srmnt v. Hic/clev, 1894, 1 Ch. 324. 
 (k) 8Edw. VII. o. 27, B. 1. 
 
MARRIED WOMEN. 355 
 
 fiuch insurances, a pecuniary interest in the life assured and trusts 
 need not be shown (Z). And under any such insurance, of policy 
 a trust arises in favour of the objects in whose favour ™™^^^' 
 the insurance is expressed to be made, — and for the estates 
 and interests therein expressed; and the policy moneys 
 are not (unless upon a total failure of the objects of the 
 trust) to form any part of the estate of the life insured, 
 — ^Although, in the case of such total failure (m), these 
 moneys would belong absolutely to the estate of the party 
 (whether husband or wife) who had effected the insurance: 
 But, either in the policy itself or by any memorandum 
 under the hand of the party effecting the policy, a trustee 
 may be appointed of the policy moneys; and (failing such 
 appointment) the legal personal representative of the life 
 insured is made the trustee (w), — or the Court will (if 
 necessary) appoint a trustee. And it is to be here noted, 
 that an after-taken wife may be (o), — and usually will 
 be (p), — entitled to a share in the policy moneys; and 
 tlie children of both the marriages will be entitled to 
 fiharo therein, — and the beneficiaries may be entitled 9,s 
 joint tenants (q) . 
 
 By s. 19, the Act (of 1882), or anything therein, is The Act is not 
 not to interfere with (or to affect) any settlement (or to effect the 
 
 T X 1 / 1 \ provisions of 
 
 agreement for a settlement) made (or to be made), settlements 
 whether before or after marriage, respecting the property °^ °{^P^^~ 
 of the married woman (r); but any settlenjent (or agree- settlements, 
 ment for a settlement), made (or to be made) by a married 
 woman of her property, is to be subject to all the same 
 ■causes of invalidity, that the like settlement (if made by a 
 man of his property) would be subject to, — at the suit of 
 creditors impugning it as fraudulent (s) : Also, the Act or the restraint 
 •of 1882, or anything therein, is not to interfere with tSn" '"^^* 
 (or to render inoperative) any restraint on anticipation 
 attached (or to be attached) to corpus or income, — ex- 
 cepting that any such restraint (created by the married 
 
 (1) Griffiths T. Fleming, 1909, 1 K. B. 805. 
 
 (m) Clearer Y. Mutual Reserve -Association, 1892, 1 Q. B. 147. 
 
 («) In re Kmper's Biliey Trusts, 1899, 1 Ch. 38. 
 
 (o) In re Grlfith's Policy, 1903. 1 Ch. 739. 
 
 (p) In re Browne's Policy, 1903, 1 Ch. 188. 
 
 (q) In re Davies' Policy, 1892, 1 Ch. 90. 
 
 (r) Buckland v. Buckland, 1900, 2 Ch. 534. 
 
 {s) Jay T. SoHnson, 25 Ch. D. 467. 
 
 A a2 
 
356 
 
 THE OEIGINALLY EXCLUSIVE JURISDICTION. 
 
 Legislation, — 
 general effect 
 of. 
 
 Marriage with 
 sister of 
 deceased wife, 
 — eiteot of, as 
 regards then 
 existing pro- 
 perty rights. 
 
 woman herself on her own property, — but not, of course, 
 when created by any third person or by her husband {t), 
 —is to be invalid ^.s against her creditors before marriage. 
 
 The effect of the Married Women's Property Acts, 1882 
 and 1893, is to make a separate entity of the wife, — so. 
 far as regards the beneficial real and personal estates of 
 the tvife (u), — So that a wife may (in respect of her 
 separate estate) plead the Statutes of Limitation against 
 her husband even (x): Nevertheless, a gift to A. and B. 
 and the wife of B. will still (in the general case) give A. 
 one half and B. and B.'s wife one half; and B. and his 
 wife will take such second half equally between them (y), 
 — and as joint-tena-nts (z), having (formerly) taken as 
 tenants by entireties (a) . 
 
 By the statute 7 Edw. VII. c. 47, — which statute is, 
 in its very words, retrospective, — the marriage of a man 
 with his deceased wife's sister having been legalised as a 
 civil marriage, the property rights of the female, — and, 
 semble, also of the male, — as such rights existed when 
 the so-called marriage was contracted, — ^remain unaffected; 
 and, e.g., as regards the female, if (at the date of her 
 marriage with A.) she was the widow of B., and entitled 
 under B.'s will to an estate for her life or widowhood, 
 she will (although become the civil wife of A.) continue 
 to be the lawful widow of B., — ^and will remain entitled 
 accordingly during the continuance of that widow- 
 hood (6): But, nota bene, as regards the title of anyone 
 in expectancy, — ^where the expectancy is a mere " bare 
 expectancy," as that of the next of kin to the personal 
 estate of a man (or woman) who is still living, — that is 
 not either property or a title to property {Sdl., within 
 the Act, or at all (c)). 
 
 {t) Birmingham Society v. Zane^ 1904, 1 K. B. 35. 
 
 (u) Bolthy V. Hodgsm, 24 Q. B. D. 103. 
 
 (x) Hallett V. Hmtings, 35 Ch. D. 94. 
 
 (y) J»pp V. Buckwell. 39 Ch. Div. 148. 
 
 (z) Thornley v. Thurnley, 1893, 2 Ch. 229. 
 
 («) Doe d. 'Truslove v. Parntt, 5 T. E,. 652. 
 
 (S) In re Whitfield, Stllv. Mathie, 1911, 1 Ch. 310. 
 
 {<;) In re Green, Green v. Meinall, 1911, 2 Ch. 276. 
 
MARRIED WOMEN. 357 
 
 Section II. Pin Money and Paraphernalia. 
 
 I. Pin Money is a yearly allowanoe settled upon the Pin money, 
 wife before marriage, — in order to dress agreeably to the personal ° 
 tastes of her husband, and for his delectation generally; expenditure, 
 and gifts (from time to time) made by the husband to his 
 wife for that same purpose are also pin money, — and are 
 not sepaxate estate of the wife. 
 
 Where the pin money arises under a settlement, if the Not like her 
 wife permits it to run into arrear, and she survive her estate in some 
 husband, she can claim only one year's arrears, — and her fe^ respects, 
 
 ,1 1 • J. n 4? ' but like it in 
 
 • executors have no claim at all, — for even one year s j^^^ respects. 
 a,rrears (e) : But where the wife has complained of her pin 
 money being paid short, and the husband has promised 
 her she will have it by-and-by, she is entitled to the 
 whole of the arrears due at her husband's death (/): 
 And, on the other hand, if the husband has paid for all 
 the wife's apparel, — and has provided also for all her 
 private expenses, — ^she oannot claim any arrears at all on 
 the death of her husband (gr). In the case of Hoioard v. 
 Dighy (h), the wife had been a lunatic (without any lucid 
 interval) for forty years, — and so could not consent to 
 her husband's retaining her pin money; and yet her 
 executors were held not entitled to recover any of the 
 
 II. Paraphernalia (i), — were the apparel and orna- Paraphernalia 
 ments of the wife given to her or supplied for her by her to^^e'wom'L 
 husband, and to be worn by her (k) in maintenance of ornaments ; 
 her station in life (J). But gifts of jewels might have tut not gifts 
 been made to the wife for her separate use; and articles tefore*ot°ffter 
 (such as would ordinarily have constituted paraphernalia), marriage ; 
 when given to the wife (either before or after marriage) 
 by a relative, would have been considered, in general, as 
 
 (e) SowarA v. Dighy, 8 Bligh, N. S. 26. 
 
 (/) Ridout T. Lewis, 1 Atk. 269. 
 
 \g) Thomas v. Bennet, 1 P. W. 341. 
 
 (h) Siipra. 
 
 (i) The word paraphernalia is deriyed from the Greek word 'jrafoupipn, — 
 "Which signifies property " od«?- and above" (irapa) the "dowry" (■pffvn) 
 which the wife brings to her husband. 
 
 [k) Graham v. Londonderry, 3 Atk. 394. 
 
 [T} Jervoise v. Jervoiae, 17 Beav. 571. 
 
358 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 nor old family given to her for her separate use(m). Also, old family 
 jewels. jewels did not constitute paraphernalia (w) . 
 
 Wife cannot 
 dispose of 
 paraphernalia 
 during hus- 
 band's life. 
 Husband can- 
 not dispose of 
 them by will. 
 
 On partial 
 alienation by 
 husband, must 
 be redeemed 
 out of the 
 personal 
 assets, as 
 against 
 legatees. 
 
 A wife could not have disposed of her paraphernalia 
 during her husband's lifetime; but the husband might 
 have done so, — Soil., by sale or gift inter vivos (but not 
 by his will (o)); and they were liable for his debts (p). 
 
 Where the husband died indebted, if the wife's para- 
 phernalia were taken by his creditors in or towards satis- 
 faction of their debts, the widow, in the administration 
 of her late husband's estate, was preferred to the general 
 legatees, — and entitled, therefore, to marshal the assets, 
 in all those cases in which a general legatee would have 
 had that right {q); and, in fact, the wife (as regards her 
 paraphernalia) had the first claim after simple contract 
 creditors. Also, if the husband should (during his life) 
 have alienated the wife's paraphernalia by way of pledge 
 or mortgage, the wife (surviving him) was entitled to 
 have them redeemed out of his estate in preference to 
 the pecuniary legatees. 
 
 Parapher- 
 nalia, area of, 
 now much 
 narrowed. 
 
 Since the Married Women's Property Act, 1882, 
 whereby the area of the separate estate of the wife has 
 been enlarged, the area of things to be called "parapher- 
 nalia" has been correspondingly narrowed: For it ap- 
 pears, that paraphernalia were merely an exception to the 
 common law rule, that the wife's pure personal estate 
 in possession vested (all of it) in the husband, on the 
 marriage and by virtue merely of the marriage (r), — So 
 that a wife being now, semble, entitled for her separate 
 use to all her dresses, underwear, and jewellery, even when 
 supplied by her husband, all these may accordingly now 
 be taken in execution by a judgment creditor of the wife's, 
 — although the husband should protest that they are 
 quodammodo not hers, but his; and the old notion, that 
 
 (ffi) Zticas V. Lucas, 1 Atk. 270. 
 
 («) Jervoise v. JervoUe, sitpra. 
 
 (o) Seymore v. Tresilian, 3 Atk. 358. 
 
 {p) Campion r. Cotton, 17 Ves. 263. 
 
 (q) Tipping v. Tipping, 1 P. Wma. 729. 
 
 (r) Masson v. De lories, 1909, 2 K. B. 831. 
 
MARRIED WOMEN. 359 
 
 all such like articles were but the "trappings" of the 
 wife, who was the chattel of her husband, and whom he 
 merely decked for his own delectation, is (apparently) 
 become barbarous and obsolete (s) . 
 
 Section III. The Wife's Equity to a Settlement; 
 ALSO, Her Eight of Survivorship 
 
 Marriage used to be, — and (subject to the various Marriage a 
 Married Women's Property Acts above mentioned) still ^rsonaTpro- 
 is, — a gift to the husband of all the personal property pertyto 
 (other than separate property) to which the wife is entitled both at law 
 at the time of the marriage, or to which she may after- >inii m equity, 
 wards become entitled: And no distinction exists, in this 
 respect, between personal property to which the wife is 
 entitled in equity and personal property to which she is 
 entitled at law; and where the wife is entitled (as one of 
 several co-owners) to an undivided share only, the law is 
 the same, — Scil.,soia,r as regards her undivided share (f), 
 — So that, subject only to the Acts aforesaid, all the wife's 
 personal property (whether at law or in equity) becomes 
 prima facie the husband's; and equity (in compelling 
 the husband to make a settlement of it on his wife) is 
 interfering with his rights to it. 
 
 On what ground, then, is the interference of equity wife's equity 
 with the husband's rights to be supported? And it is ^°^g„*?^™™* 
 
 safe to assert, that the wife's equity to a settlement did pendona 
 
 not (and does not) depend on any right of property in her, pl^* in^e°'_ 
 — For if she insists upon her equity, she must claim it for 
 herself and her children (and not for herself alone) . The 
 wife's equity to a settlement was, in fact, a mere creature 
 
 of equity, — and was an application of the maxim, "He tut arises 
 
 who seeks equity must do equity," — That is to say, the from the ^ 
 
 Court refused its aid to the plaintiff-husband seeking (in wh^seeks ^ 
 
 a Court of Equity) to acquire what the law entitled him equity must 
 
 to (but which no Court of law had jurisdiction to give ° ^"^"^ ^' 
 him); and as he necessarily came into a Court of Equity 
 
 (s) Masson v. JDe Fries, supra, 
 
 [t) Bracebridge t. CooTc, Plowd. 418. 
 
360; 
 
 THE ORIGINALLY EXCLUSIVE JI/RISDICTION . 
 
 for it, that Court obliged him to fall in with its own ways, 
 — and never allowed a husband to obtain the fortune of his 
 wife, without he first made a provision for her thereout : 
 And onoe the principle was recognised where the husband 
 was the plaintiff, it was easy to apply it also to cases 
 where the assignees of a bankrupt (or insolvent) husband 
 were the plaintiffs; and the rule was afterwards held to 
 apply, even as against the particular assignee of the hus- 
 band (for valuable consideration) where he was plain- 
 tiff (m); and, eventually, the wife herself was permitted 
 to come (as a plaintiff) to assert her equity (a;). 
 
 The general 
 principle upon 
 which the 
 Court acts, in 
 decreeing or 
 not to married 
 woman a 
 settlement. 
 
 Before proceeding to any detailed consideration of the 
 equity, it is convenient to state the principle which 
 governs it: Now, there being, first of all, a possibility 
 of the husband getting hold of and keeping to himself 
 (by virtue of his legal rights) the property of the wife, 
 the Court inquires, whether the wife (if she survive her 
 husband) will take the entirety of the property (by virtue 
 of her right of survivorship hereinafter explained); and 
 if (but only if) there is a possibility of the husband getting 
 and keeping the whole property, and the wife will not 
 be entitled to the entirety by survivorship, then the Court 
 inquires into the question of the wife's equity to a settle- 
 ment out of it: And (upon that inquiry) the Court 
 inquires principally, whether the property is legal, or is 
 equitable: And the Court answers :^-(l) If the property 
 is equitable, the wife is entitled to an equity out of it 
 (there being no other sufficient reason for denying her the 
 equity) ; but (2) If the property is legal, the wife is not 
 entitled to any equity out of it (there being no other 
 sufficient reason for decreeing to her the equity). 
 
 The general 
 principle illus- 
 trated. — 
 (1) Wife's 
 terra, or lease- 
 hold interest, 
 (a) Being 
 equitable. 
 
 (1) The Wife's Leaseholds. — Firstly, where the hus- 
 band (and wife) assigned by way of mortgage (and by 
 unacknowledged deed) the equitable interest of the wife 
 (or of the husband in right of his wife) in a term of 
 years, and the mortgagee filed his bill (against the hus- 
 
 (m) Scott V. Spashett, 2 Mac. & G. 596. 
 (x) Elibank v. Montolieu, 5 Ves. 737. 
 
MAKKIED WOMEN. 361 
 
 band, the wife, and the trustee) far a foreclosure and 
 assignment of the term, the wife was held to be entitled 
 to a provision for her life (by way of settlement) out of 
 the mortgaged premises («/) : But, Secondly, where a (b) Being 
 similar assignment took place of the wife's legal interest ^®sal- 
 in leaseholds, the wife was held to have no equity to a 
 settlement out of them, the mortgagee having taken a good 
 legal title thereto from the husband alone {z). But, in a 
 case of Boxall v. Boxall {a), where the leaseholds of the 
 wife were legal, and the husband had deserted his wife, 
 and she had sold the leaseholds, — making title thereto 
 through a fraud which purported to shoto, that she was a 
 widow, and that the leaseholds had been her own separate 
 estate; and she had expended the whole purchase-money 
 upon the maintenance of herself and her children, — The 
 Court refused to recognise the husband's title at all, or 
 to give him any relief at all against the purchaser of the 
 leaseholds. 
 
 (2) The Wife's Pure Personal Property. — There was (2) Wife's 
 no doubt at all, that if the property was legal, the wife had p^e personal 
 no equity out of this ; but if that property was equitable, (a) Being 
 there was just as little doubt, that the wife had an equity i«ga-i- 
 out of it: Which equity, when the property belonged to ^'^^ ■???^_ 
 the wife for the absolute estate or interest therein, held 
 good not only as against the husband, but also as against 
 everybody claiming under him (6'). On the other hand, (aa^Andin- 
 where the property belonged to the wife for her life only, terest being 
 the Court never (in the absence of misconduct on the part iS^erest."*'^ 
 of the husband) deprived him of the income of the fund, — (bb) interest 
 and therefore held, that the wife (even where her husband |l^™s to 
 had deserted her (c), Imd failed to maintain her, or had 
 become bankrupt {d)) was not entitled, as against a pur- 
 chaser for vaMe of the life-estate, to any provision out of 
 her life^estate, — Scil., where the purchaser had purohaised 
 
 (y) Sanson v. Keating, 4 Hare, 1. 
 
 («) BUI v. Edmmds, 5 De G. & Sm. 603. 
 
 (a) 27 Ch. D. 220. 
 
 (b) Tidd V. Lister, 3 De G. M. & G. 869. 
 
 (c) Wright v. Morley, 11 Ves. 12. 
 
 (d) Elliott T. Cordell, 5 Mad. 149. 
 
"62 THE OEIGINALLY EXCLUSIVE JURISDICTION. 
 
 previously to the desertion or bankruptcy (e). But the 
 husband's general assignee was not so favoured, — because, 
 when his title accrued, the incapacity of the husband ta 
 maintain his wife had already to Ms knowledge raised 
 an equity in her favour, — and she therefore was, in that 
 case, entitled to have some provision made for her out 
 of the life-estate, — but not out of any income accrued due 
 before she claimed her equity (/) . 
 
 (3) Wife's (3) The Wife's Real Estate. — In the case of realty of 
 
 rtp't t f inheritance, the question of the wife's equity to a settle- 
 inheritance, ment out of it did not arise, — Because there was no possi- 
 (b) Life estate. hiUty of the husband either taking or keeping the inheri- 
 tance adversely to his wife; and, therefore, whether the 
 estate was legal or wafe equitable, the wife had no equity, 
 — Scil., because she had something better (namely, the 
 whole indefeasible inheritance, in fee simple or in fee tail, 
 as the case might he{g)). And the question, therefore, 
 only arose as regards the wife's life-estate (where she was 
 entitled to a life-estate only), — or arose only as regards 
 the rents and profits during the coverture (where the wife 
 was entitled for an estate of inheritance in fee simple or 
 in fee tail). Now, where the husband was an insolvent 
 debtor, and his wife was entitled to certain lands for 
 her life only, and for the equitable estate only therein, — 
 the' Court held, that the wife was entitled (as against the 
 assignee in the insolvency) to have some provision made 
 for her out of the accruing rents and profits {h) : And, 
 again, where the husband had abducted his wife (and 
 had been imprisoned for the abduction), and his wife was 
 the legal tenant in tail of certain lands, — but her legal 
 title was subject to a jointure rent-charge, and to a term 
 of years created for the purpose of securing that charge 
 and ceasing with the charge, — The Court held, that so 
 long as the term lasted (whereby the wife's estate tail, 
 although good enough in equity, was not perfectly good 
 at. law) the wife was entitled, as against her husband 
 
 (e) Vaughan v. Bueh, 13 Sim. 404. 
 
 (/) Re Carr's Tmats, L. R, 12 Eq. 609. 
 
 (g) Life Association of Scotland v. Siddall, 3 De G-. F. & J. 271. 
 
 (A) Sturgis v. Ohampneys, 5 My. & Cr. 97. 
 
MARRIED WOMEN. 363 
 
 (and his creditors), to have some provision made for her 
 out of the accruing rents, — ^although not after the term 
 should have ceased (if it should, in fact, cease) during tho 
 coverture (i) . 
 
 A wife might, by alienation, have defeated her equity Wife's equity 
 to a settlement: And, Firstly, as regards her freehold her^aUenation. 
 estates, whether in possession or in reversion (fc), she (i) interests 
 might have alienated these, — by a deed duly acknow- in realty, 
 ledged by her, and executed (with the concurrence of her W Freeholds, 
 husband) in the manner provided by the 3 & 4 Will. IV. 
 o. 74: Secondly, as regards her copyhold estates, she (b) Copyholds, 
 might have alienated these, — by a surrender thereof, 
 being separately examined, and her husband concurring, 
 of course: And, Thirdly, as regards her personal estates (2) interests 
 (whether leaseholds or pure personal estate), her husband in personalty. 
 might solely have disposed of all these, — subject only to (?■) inposses- 
 the wife's establishing (if she was able to) her equitj' 
 to a settlement out of them : But, Fourthly, as regards /j,) in rever- 
 the wife's choses in action (or pure personal estate out- sion, or out- 
 standing), the old common law said, that the marriage ^'^^'^'"S- 
 was only a qualified gift of these to the husband, — That 
 is to say, a gift to him, only if {or upon condition that) 
 he reduced them into possession during '(in effect) his 
 life, — So that, if he died before his wife without having 
 reduced such property into possession, the wife (by right 
 of survivorship) remained entitled to the property. 
 
 Accordingly, where ,a husband and wife (by deed exe- Wifesurvivuig 
 cuted by both) purported to assign to a purchaser for took her ^" 
 valuable consideration a fund in which the wife had a reversionary 
 vested estate in remainder, expectant on the death of a ^hich^hehad 
 tenant for life, — and both the mfe and the tenant for not reduced 
 life outlived the husband,— It was held, that the wife l^'°.P°!ff" 
 
 /•I i*T 'I- N sion , ana 
 
 (notwithstanding her concurrence in the assignment) was husband's 
 entitled to claim the whole fund, — all such assignments l^f^omms 
 (although made by the husband and wife jointly) than the 
 operating to pass only the interest which the husband husband had 
 had, — That is to say, they only operated subject to the 
 wife's legal title by survivorship (I), and not as the wife's 
 
 (i) Wortham v. Pemberton, 1 De G. & Sm. 644. 
 {*) Tuer V. Turner, 20 Beav. 560. 
 [T) Purdew v. Jackson, 1 Kuss. 1. 
 
364 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 assignment at all: And the Court had not even power 
 to take the wife's consent to part with her legal title 
 by survivorship (m), — That is to say, the legal right of 
 survivorship was never bound by a Court of Equity (n); 
 and it was, in f aot, for that precise reason, that a claim 
 by the wife for a settlement out of her reversionary in- 
 terest in pure personal property, so long as it continued 
 reversionary, was not maintainable (o), — Soil., because 
 she had something better. 
 
 Divorce of 
 husband, — 
 ■when, and 
 when not, 
 equivalent to 
 his death, — as 
 regards the 
 property of 
 his wife. 
 
 If the husband had been divorced by the wife, the 
 divorce was deemed to be his death, — Scil., for the pur- 
 pose of defeating his right to a chose in action of the 
 wife's, which was still (at the date of the divorce) out- 
 standing and unreduced into possession (p). But, nota 
 bene, if the wife's property had been settled on tfer 
 marriage, and the husband (surviving his wife) took a 
 life-estate under the settlement, the divorce was not (in 
 that case) equivalent to death, — but the husband (contin- 
 gently on surviving his wife) remained entitled to his life- 
 estate (g), — Soil., unless and until the Divorce Court (on 
 a variation of the settlement) extinguished the life- 
 estate. 
 
 Malins's Act, 
 20 & 21 Vict. 
 c. 57. 
 
 Fetne cover i^s 
 interests in 
 personalty, — 
 ^a) Being in 
 reversion ; 
 
 By Malins's Act (20 & 21 Vict. c. 57), every married 
 woman (unless she was restrained from anticipation) was 
 enabled (with the concurrence of her husband), by deed 
 acknowledged in the manner required by the' Fines and 
 Recoveries Act, to dispose of every future or reversionary 
 interest (vested or contingent) belonging to her (or to 
 her husband in her right {r)), — in any pure personal 
 estate, to which she was entitled under any instrument 
 (except her own marriage settlement (s)) made after 
 the 1st December, 1857; and she was also thereby enabled 
 to release or extinguish any power in regard to any such 
 personal estate, — and to release and extinguish also her 
 equity to a settlement out of her personal property in 
 
 [m) Richards v. Chambers, 10 Ves. 580. 
 («) Seaton-v. Seaton, 13 App. Ca. 61. 
 (o) In re Slater's Trusts, 11 Oh. Div. 227. 
 Ip) Wilkinson v. Gibson, L. R. 4 Eq. 162. 
 [q) Fitzgerald v. Chapman, 1 Ch. D. 563. 
 (r) Tennent v. Welch, 37 Ch. Biv. 622. 
 (s) Harlem. Jarman, 1895, 2 Ch. 419. 
 
MARRIED WOMEN. 365 
 
 possession, — Soil., under any such instrument as afore- (b) Being in 
 said, and excepting always as aforesaid: And a married possesBion. 
 woman may now, semble, by an ordinary unacknow- 
 ledged deed even release and extinguish her powers 
 generally (i), — Sed queer e ; However, a mere spes succes- 
 sionis of the wife is not a future interest within the mean- 
 ing of Malins's Act (u) . 
 
 As regards a wife's choses in action (not being her Fmecomrt's 
 separate estate), this distinction used to betaken (and still action,- 
 would be taken), namely: — Firstly, if the chose in action accrued before 
 had belonged to the wife before her marriage, the action ^craed aftS^ 
 for its recovery required to be brought by the husband marriage,— 
 and wife jointly as co-plaintiffs (x),— In which case, if S'een""' 
 the husband predeceased the wife, the action survived 
 to the wife, — ^and her right of survivorship was thereby 
 rendered the more effective: But, Secondly, if the chose 
 had accrued to the wife during the coverture, the husband 
 might have sued therefor in his own name (and without 
 adding his wife as a co-plaintiff), — or he might (at his 
 option) have added the wife as a co-plaintiff, — In which 
 latter case, the wife's right of survivorship (in case she 
 survived) would again have been effective in the action («/) . 
 
 If the wife was entitled to a reversionary chose in action As to cases 
 (whether legal or equitable), and it was neither separate "^gJJt''!? 
 estate of the wife nor within the provisions of Malins's operation of 
 Act, the effect of an assignment of it by the husband — the assign- 
 or by the husband and wife jointly, — would have been 
 different under different circumstances: For it is certain, 
 firstly, that the wife by herself cannot assign ; and, 
 secondly, that the husband can only assign to another the 
 interest to which he is himself entitled: Supposing, 
 therefore, the wife to be entitled on the death of A; (a 
 living person) to a sum of stock standing in the names 
 of trustees; and supposing that her husband purports to 
 make an assignment of this reversionary interest to B., a 
 purchaser, — The benefit which accrues to B. (the pur- 
 
 (t) Semphillv. ITemphill, 1901, 2 Ch. 82. 
 (m) Allcard v. Walker, 1896, 2 Ch. 369. 
 {x) Sates V. Dandy, 2 Atk. 207. 
 (j)) Coppin's case, 2 P. Wms. 496. 
 
366 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 chaser) by virtue of the assignment will vary according 
 as the husband, the wife, or A. dies first, — That is to 
 say:— 
 
 (1) If the husband dies first, B. loses his purchase, — 
 For the wife, having survived her husband, will (on the 
 death of A.) be entitled by survivorship to the stock (z); 
 
 (2) If A. dies first, B. will then become entitled to a 
 transfer of the stock, — Scil., If the trustees choose to 
 transfer it to him, and the wife has not meanwhile taken 
 steps to enforce her equity to a settlement (a) ; but if 
 the trustees refuse to transfer (or if the wife has insisted 
 upon her equity) B. only takes the fund subject to the 
 wife's equity to a settlement; and 
 
 (3) If the wife dies first, — Then, inasmuch as the hus- 
 band (on taking out administration to his wife) would be 
 able to recover the fund at law, — Therefore B. (as the 
 husband's assignee) will (in this single case) obtain the 
 whole fund, — subject (in general) to paying the husband 
 his costs of obtaining the administration. 
 
 What did not It is to be remembered always, that any mere assign- 
 rSuction°i^to D^^nt by the husband of his wife's reversionary chose in 
 possession. action is not an actual (6), — or even a constructive (c), 
 — reduction of it into possession; and therefore, whether 
 the husband died in the lifetirae of the prior life-tenant, 
 — whereby the chose in action could not (as against the 
 wife) be reduced into possession; or whether the husband 
 survived the prior life-tenant and died (leaving the wife) 
 before it was actually reduced into possession, — In either 
 case, the chose in action survived to the wife (d) . And 
 where the wife was entitled to a legacy, and her husband 
 was the executor of the will, and the wife survived him, 
 — It was held, that there had been no reduction into posses- 
 sion by the husband, and the legacy survived therefore 
 to the wife (e). Also, the transfer by a husband of the 
 title-deeds of which his wife was equitable mortgagee, 
 
 (z) Sonner v. Morton^ 3 Russ. 65. 
 (a) Greedy v. Lavender, 13 Beav. 62. 
 (A) Hornsby v. Lee, 2 Mad. 16. 
 (e) Le Vasseur v. Seratton, H Sim. 116. 
 (a!) Widgery v. Tepper, 6 Ch. 616. 
 {«) Baker v. Hall, 12 Ves. 497. 
 
MARRIED WOMEN. 367 
 
 — the transfer being to secure a debt of the husband's 
 own, — was held not to defeat the wife's right of survivor- 
 ship (/); On the other hand, if the husband is in a posi- What did 
 tion to maintain an action at law for the amount of the rXctio^into 
 chose in action, — as for " money had and received," — that possession, 
 is a reduction of the chose in action into possession (gr); 
 and if (in a pending action) the income has been ordered 
 to be applied in payment of the husband's incumbrances, 
 that is a reduction into possession (to the extent that the 
 money is so applied (h)). Also, if the chose in action has 
 accrued to the wife during the coverture (but not where 
 it has belonged to her before the marriage), and the hus- 
 band (suing for it in his own name alone) recovers judg- 
 ment for it, — That is a reduction of it into possession (i); 
 and, of course, any actual payment to an agent of the 
 husband is (to the extent of such payment) a reduction 
 into possession. 
 
 In a case of In re D'Angibau (k), A. was entitled in 
 reversion (expectant on the prior life-estate of her mother) 
 to a certain trust fund of pure personal estate, — and while 
 an infant she married B. (an adult); and A. and B. 
 settled the reversion, in trust for A. for her life, with 
 power in her to appoint by deed or will, and (failing 
 appointment) in trust for A.'s next of kin: And after- 
 wards A . (while still being an infant) appointed the fund 
 to B., and died leaving her mother and B. surviving, — 
 and the Court said, that (subject to the continuing life- 
 estate of the mother) B . was entitled to the whole fund, — 
 either (1) as appointee of A.; or else (2) as surviving hus- 
 band; and the next of kin of A. (who were mere volun- 
 teers) wore, in either case, excluded from any share in the 
 fund. 
 
 A wife may, at her own option and without regard to Settlement, if 
 the children, waive or abandon her equity; and if (e.g.) ^avehT^^ 
 she consents to the husband receiving the whole, the made on wife 
 
 and children. 
 
 (/) Michelmore v. Mud^e, 2 Giflf. 183. 
 (17) Dardierv. Chapman, 11 Ch. JHv. 442. 
 (h) Tiid V. lister, 3 De G. M. & G-. 869. 
 (i) Oglander v. Baston, 1 Vern. 396. 
 (A) 15 Ch. D. 228. 
 
368 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 When the 
 right of the 
 cmldren 
 becaxne 
 indefeasible. 
 
 children will be defeated of their (so-called) rights: The 
 , inquiry therefore arose, — What was sufficient to create a 
 title in the children? 
 
 And, Firstly, if the property was in the hands of trus- 
 tees, it was not enough that the wife should have given 
 them notice (in however formal a manner), that she de- 
 manded a settlement, — Scil., because the trustees might 
 (notwithstanding any such notice) have handed over the 
 property to the husband; 
 
 And, Secondly, if the wife had even commenced an 
 action to effectuate her equity, she might (at any time 
 before the settlement was completed) have waived and 
 defeated her joquity (I), — and therewith the (so-called) 
 rights of her children : And upon this waiver of the 
 wife's equity, these points were established, namely: — 
 
 (1) That if the wife died before the action was com- 
 menced, the children had no right to a settlement (to) ; 
 
 (2) That if the wife died after action commenced, but 
 before decree, her children had no right to a settle- 
 ment (n); But 
 
 (3) If a decree (or order) had been made in the action 
 (referring it to Chambers to approve a proper settlement), 
 and the wife had then died before anything further had 
 been done, — In this case (and in this case only), the chil- 
 dren were entitled to the benefit of the decree, and might 
 enforce such a settlement as the wife (if still living) would 
 have been entitled to enforce (o) . 
 
 Eight of ^^^ right ,of the children to a settlement also arose 
 
 children might (after the death of their mother), where there was a con- 
 
 TOntract hy* ^^'^^^ ^J ^^e father to make a settlement of his wife's 
 
 father. property; and yet, — even after such a contract, just as 
 
 after a decree, — the wife (if living) might (at any time 
 
 before the execution of the sisttlement pursuant to the 
 
 contract) have waived her equity, — and so have defeated 
 
 the (so-called) rights of the children (p): But, nota bene, 
 
 the wife, if an infant, could not have waived her equity. 
 
 (l) Wallace v. Auldjo, 1 De G. J. & Sm. 643. 
 
 (m) Soriven v. Tapley, 2 Eden, 337. 
 
 (n) Fitzgerald v. Chapman, 1 Ch. Div. 563. 
 
 (o) Wallace v. Auldjo, supra. 
 
 [p] Baldwin v. Baldwin, 5 De G. & Sm. 319. 
 
MARRIED WOMEN. 369 
 
 The wife's equity to a settlement might also have been wtat would 
 defeated adversely to her and to the children: Thus, defeat wife's 
 when the debts of the wife (oontracted before marriage) Tertieme^t. 
 exceeded the fund to which the husband became entitled 
 in her right (g),— or when the husband's debts to the 
 estate out of which the wife's interest arose exceeded the 
 amount of such interest (r),— In either of these two cases, 
 the equity to a settlement was defeated, — although the 
 wife's equity (which was paramount to any right in the 
 husband (s)) would not have been wholly defeated by 
 reason of the husband's indebtedness (t). 
 
 Usually, also, the wife's equity would have been de- 
 feated, if an adequate settlement had been already made 
 upon her (u), — or if she was living in adultery apart from 
 her husband (x) . But, where both the husband and the 
 wife were living in adultery, it was held, — setting off 
 the one wrong against the other, — that she was entitled 
 to her equity (y) . And, lastly, a married woman would 
 have defeated her equity, if she had committed a gross 
 fraud: For example, where by a document purporting to 
 bear date before (but in reality signed after) her marriage, 
 she purported to assign certain property of hers to her 
 husband, — and the husband thereupon sold the property, 
 — the woman was precluded {as against the purchaser) 
 from claiming her equity to a settlement (z) . 
 
 As regards the amount to be settled upon the wife and Amount of 
 children,— Firstly, If the husband was solvent and re- ««'««™«°t- 
 fused to make a settlement upon his wife, the Court 
 would not (because it could not («)), so long as he sup- 
 ported her, prevent him from taking the income of her 
 property; but what the Court did (in such a case) was, 
 to retain the capital, so as to give the wife a chance of 
 taking it by survivorship {b): But 
 
 Secondly, When the husband had become bankrupt (or 
 
 (?) Barnard v. Ford, L R. 4 Ch. App. 247. 
 
 (r) Wardv. JVard, 14 Ch. Div. 506. 
 
 {«) Sloper V. Oliver. L. E. 16 Bq. 481. 
 
 {t) Fonltcr r. Shackell, 39 Ch..r)iv. 471. 
 
 (m) BiiUman v. Wynter, 22 Ch. Div. 619. 
 
 \x) In re Lewin's Trmt, 20 Beav. 378. 
 
 (y) Greedy v. Lavender, 13 Beav. 62. 
 
 (z) In re Lush's Trusts, L. E.. 4 Ch. App. 591. 
 
 (a) Alexander v. MeCttllouffh, cited in Ball's case, 2 Ves. 191. 
 
 (b) Atcheson v. Ateheson, 11 Beav. 485. 
 
 S. B B 
 
370 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Form of 
 settlement. 
 
 How far 
 settlement 
 binding, as 
 against credi- 
 tors of hus- 
 band. 
 
 was notoriously insolvent), the amount to be settled was 
 purely within the discretion of the Court; and in deter- 
 mining the amount, the Court took into consideration, 
 generally, the conduct of the husband, and also the con- 
 duct and circumstances of the wife. 
 
 Usually, one half of the wife's property would be 
 settled upon herself and the children (the remaining one 
 half going to the husband or his assignees (c)): But in 
 some cases, the whole fund would be settled on the wife 
 and children, — as where it was barely sufficient for her 
 and their maintenance; and where the husband was bank- 
 rupt or a lunatic {d), or had deserted his wife (e), the 
 whole fund was settled. But, in the settlement (whether 
 of the half or of the whole), the Court did not interfere 
 with the marital right further than was necessary to give 
 effect to the wife's equity, — So that the ultimate limita- 
 tion in default of issue (of the existing marriage, or of 
 any future marriage or marriages of the wife), was to 
 the husband (absolutely (/;), whether or not he survived) 
 the wife {g). 
 
 Settlements inade in pursuance of the equity to a settle- 
 ment were binding upon the creditors of the husband, — 
 Scil., Because the statute 13 Eliz. c. 5 is only aimed 
 against fraud; and a bond fide settlement will hold good 
 as against the husband's creditors, — even although it 
 should be voluntary (h), — and still more so, if it should be 
 by way of compromise (i), or otherwise for value. Also, 
 under the Bankruptcy Act, 1883, s. 47, "a settle- 
 ment, — made on (or for the benefit of) the wife or 
 children of the settlor, of property which has accrued to 
 the settlor after marriage in right of Ms ivife," is good as 
 against the trustee in the bankruptcy of the husband. 
 Also, where the Court decrees the settlement, it is a good 
 settlement, — and is deemed to be for valuable "considera- 
 tion" (fc): And where the fund was in trustees, and they 
 
 (c) In re SiiggiU's Tncsts, L. R. 8 Ch. App. 215. 
 
 (d) Scott T. Spashctt, 3 Mac. & G. 599. 
 
 (e) Reid v. Seid, 33 Ch. Div. 220. 
 (/) Croxton v. May, 9 Ch. Div. 388. 
 (g) Gale v. Gale, 6 Ch. Div. 144. 
 
 (A) Cndngan v. Eennett, 3 Cowp. 434. 
 
 (i) mhU T. Bull, 1 Cox, 445. 
 
 {k) Simson v. Jones, 2 Euss. & My. 365. 
 
MARRIED WOMEN. 371 
 
 would not pay it to the husband, unless he made a settle- 
 ment of it (which he did), — The settlement was held to 
 be a good settlement (as against the husband's creditors), 
 the action of the trustees operating like an order of the 
 Court might have done (Z) . 
 
 Section IV Settlements in Derogation of 
 Marital Eights. 
 
 So long as husbands became entitled on marriage to wife must 
 the property of their wives, any alienation of that pro- committed a 
 perty (in fraudulent derogation of the prospective marital iraud on the 
 rights) would, in equity, have been deemed null and void, ""*" '^ "^ 
 
 For (it was said) if a woman, " during the course of 
 
 the treaty of marriage with her," makes (without notice 
 to the intended husband) a conveyance of any part of her 
 property, it is a fraud, — and will be set aside (w) . 
 
 The decided cases supported the following conclusions 
 relative to this theory of fraud, that is to say: — 
 
 Firstly, if a woman (entitled to property) represented J*' during a 
 to her intended husband, during the marriage treaty, that riagef she™^"^" 
 she was so entitled; and if, during the same treaty, she aliened «i«i/j- 
 
 'l/ J owt fiusoQinct s 
 
 clandestinely conveyed away the property to a volun- knowledge 
 teer {n), and, the (Concealment continued until the marriage whShsL^had 
 took place, — That was a fraud on the husband, and he represented 
 was entitled to relief (o); and it did not (for this purpose) ytie^ jt'J" 
 
 : was 
 
 matter, how meritorious (on the wife's part) the clandes- a fraud on 
 tine settlement might have b6en(p). Also, where a „ ' 
 woman, ten months before the marriage, hut after the cipieappiic- 
 aommencement of that intimate acquaintance with her not^^nowher 
 future husband which ripened into marriage, made a to be possessed 
 settlement of a sum of money which he did not even know ^J^^ ^^°' 
 her to be possessed of, — ^and she concealed from him both 
 her right to the money and the execution of the settle- 
 ment (q), — and the husband (ten years afterwards) became 
 
 (T) Wheeler Y. Caryl, Amb. 121, 122. 
 , (m) Strathmore v. Bowes, 1 Ves. 22. 
 (») Lance v. Norman, 2 Ch. Rep. 79. 
 (o) England \. Sownes, 2 Beav. 528. 
 (p) Taylor v. Fugh, 1 Ha. 608. 
 (j) Goddard v. Snow, 1 Kuss. 485. 
 
 B b2 
 
372 
 
 THE ORIGINALLY EXCLtTSIVB JURISDICTION. 
 
 Not fraudu- 
 lent, if to a 
 purchaser for 
 valuatle con- 
 sideration 
 without 
 notice. 
 
 acquainted with the settlement, and filed a bill to upset 
 it, — The Court held, that the settlement was void, as a 
 fraud upon his marital rights (r), — Secus, if the settlement 
 had been for value and bond fide (s) . 
 
 But, Secondly, if the intended husband is made ac- 
 quainted before the marriage with the fact of the settle- 
 ment having been made, and still thinks fit to marry the 
 woman, he is bound by the settlement (i). 
 
 A husband Thirdly, the settlement must (in all oases) have been 
 
 aside a con- '^^ made during the course of the treaty for marriage with 
 veyance, when the particular husband challenging it; and accordingly, a 
 the'ma^"'^™^ Settlement made by a widow upon herself and the children 
 ■with. Mm. of a former marriage, — it being proved, that the person 
 she afterwards married was not at the time of the settle- 
 ment "her THEN intended husband," — was held to be no 
 fraud on him (m) : And where the plaintifi (pending a 
 treaty of marriage with A.) made a settlement with A.'s 
 approbation, — and a few days afterwards she threw over 
 A. and married B., who had no notice of the settlement, 
 — The settlement was held good against B. (x). 
 
 Lastly, where the husband had before the marriage 
 seduced his wife, a settlement executed by her, although 
 without her husband's knowledge, was supported (y), — 
 the husband having committed a quasi-forfeiture of his 
 rights . 
 
 Since the Married Women's Property Act, 1882, it is 
 difficult to see, how any conveyance by a woman about to 
 marry can now (whether it be secret or not) be considered 
 fraudulent as against her husband: Anyhow, the fraud 
 on him would not be productive of legal damage; and 
 fraud without legal damage is no ground of action (z), 
 either at law (a) or in equity (fe), — So that the equitable- 
 doctrine of Fraud on tie Marital Eights has become,. 
 semble, a merely curious (and wholly obsolete) doctrine. 
 
 If he had 
 seduced his 
 wife before 
 marriage, her 
 conveyance 
 was good. 
 
 Married 
 Women's 
 Property Act, 
 1882,— how it 
 affects frauds 
 oil marital 
 rights. 
 
 (r) Downes v. Jennings, 32 Beav. 290. 
 
 (s) LlewelUn v. Cobbold, i Sm. & Giflf. 376. 
 
 (() NeUon v. Stacker, 4 De G. & J. 458. 
 
 (m) England v. Downei., 2 Beav. 531. 
 
 (V) Straihmore v. Howes, supra. 
 
 (y) Taylor v. Fugh, 1 Hare, 608. 
 
 (z) Smith V. Chadwich, 9 App. Ca. 187, on p. 196., 
 
 (o) Sullivan v. Mitcalfc, 5 C. P. D. 465. 
 
 (*) Mash V. Oalthorpe, 1905, 2 Ch. 237. 
 
873 
 
 CHAPTEE XXn. 
 
 INFANTS. 
 
 A FATHEE is the guardian by nature and nurture of his Father, as 
 children during their infancy, — ^although (by the 36 Vict. guar<iiaii; and 
 c. 12) the Court may grant the custody of infants (under ^°aril[an^' 
 the age of sixteen years) to their mother; and (by the 
 49 & 50 Vict. c. 27) the mother (surviving the father) is 
 constituted guardian; and the mother is, of course, the 
 natural guardian of her own illegitimate children (if 
 any). 
 
 By the 12 Car. II. c. 24, the father may, — by deed or Guardian, 
 (if not a minor) by will,^appoint one or more persons f^th^^or'ty^ 
 to be guardians of his children, — the guardians so ap- mother, 
 pointed being usually called " testamentary guardians," 
 and the guardianship surviving to the survivor (a) ; and 
 by the 49 & 50 Vict. c. 27, the mother may, — by deed or 
 (if not a minor) by will, — appoint any person to be 
 guardian of her children, — to act (after her own death) 
 jointly with the father of the children, and (after her 
 own death and the death of the father) jointly with the 
 guardian (if any) appointed by the father. 
 
 Testamentary guardians are trustees (&); and although Guardians,— 
 they acquire no estate in the lands of their ward (c), being re^Lrds'th«r 
 (in that respect) unlike guardians in socage (d), still they ward's estates. 
 are entitled to receive (and to give receipts for) the rente 
 and profits (e), — Seil., unless where trustees under s. 42 
 of the Conveyancing Act, 1881, have been appointed (/): 
 
 (a) Eyre v. Shaftesbury, 2 P. "Wms. 102. 
 
 (b) Mathew y. JBrise, 14 Beav. 341. 
 
 (c) Gardner v. Blane, 1 Ha. 381. 
 
 (d) Bex V. Sutton, 3 A. & E. 597. 
 («) 12 Car. II. c. 24, as. 8, 9. 
 
 (/) In re Helyar, 1902, 1 Ch. 391. 
 
374 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Guardian, 
 appointed by 
 stranger. 
 
 Guardian, 
 appointed by 
 the Court. 
 
 Infant 
 becomes a 
 ward of Court, 
 when action 
 commenced 
 relative to his 
 estate ; or an 
 order is made 
 without suit. 
 
 Also, the testamentary guardians are the proper parties 
 to consent to any sale of the glebe lands, where (the 
 infant) their ward is patron of the living {g) . 
 
 And, nota bene, where, with the consent of the father, 
 a stranger has put himself in loco parentis to the child, 
 — and has provided for the maintenance and education 
 of the child, and has (for that purpose) appointed 
 guardians, — the appointment will be good, — or, at all 
 events, will be upheld, — unless and until it is shown to 
 be to the prejudice of the child (A). Also, the Court 
 may itself appoint a guardian, — the jurisdiction of the 
 Court in this particular being founded on the Prerogative. 
 of the crown as Parens Patrice (i) : And although the 
 jurisdiction in this particular had vested in the Court 
 of Wards during that Court's continuance, still the juris- 
 diction reverted to (and re-vested in) the Court of 
 Chancery on the abolition ,of the Court of Wards (it) : 
 The Court ,of Chancery may also (in a proper case) re- 
 move any guardian (and appoint another in his place), 
 according as the welfare of the ward may require (Z). 
 
 When an action is commenced relative to an infant's 
 estate or person, the infant (whether plaintiff or defen- 
 dant) immediately thereupon becomes a ward of 
 Court (to); and where an order for his (or her) main- 
 tenance has been made on summons at Chambers, the 
 infant thereby also becomes ^ ward of Court (w) ; and 
 similarly, upon an order for his (or her) custody (o): 
 But if the child is an alien, none of these proceedings 
 suffice, semble, to constitute him (or her) a ward (p) . 
 And note, that the Probate Division also may (under 
 its general jurisdiction) make an order as to the 
 custody of children during the whole period of their 
 minorities (q). 
 
 ( g) Leigh v. Leigh, 1902, 1 Ch. 400. 
 
 (A) Lyons v. Slenkin, Jac. 245. 
 
 (i) Reg. v. Gyngall, 1893, 2 Q. B. 232, on pp. 246, 247. 
 
 \k) Smith w. Smith, 3 Atk. 304. 
 
 (I) In re McGraths, 1893, 1 Ch. 143. 
 
 (m) De Pereda v. De Maneha, 19 Ch. Div. 451. 
 
 («) In re Hodge's Settlement, 3 K. & J. 213. 
 
 (o) In re Taylor, 4 Ch. Div. 157. 
 
 (p) In re Bourgeoise, 41 Ch. Div. 310. 
 
 (q) Thonimset v. Thomasset, 1894, P. 295. 
 
INFANTS. 375 
 
 The Chancery Division requires, in all cases, that the au infant 
 infant shall have property, before tlie Court will make must have 
 him (or her) a ward of the Court; and this is because 00"^%^* 
 .(Firstly) the Court can exercise the jurisdiction use- exercise its 
 fully, only where there is property which it can apply usrfuiiy!'™ 
 for the maintenance of the infant; and because (Secondly) 
 where there is no property available, the law has made 
 other provision (of an effective kind) for the protection 
 of children requiring to be protected (r) ; and because 
 (Thirdly), as regards the apprenticing of poor children, 
 the exclusive jurisdiction as to that is in the justices (s). 
 
 Parents are intrusted with the custody of their children. Jurisdiction 
 on the presumption that they will take due care of their guardians 
 education, morals, and religion: Therefore, the Court, if 
 reasonably satisfied that the children are not being pro- 
 perly treated, will interfere even with parents (t), and 
 with uncles and aunts (u) . But a strong case must be 
 made, before the Court will interfere with a father's 
 guardianship; and (e.g.) where the father is insolvent, 
 — or his conduct is loathsome and corrupt (x), and he is 
 neglecting the education of the children, or is ill-treating 
 them (y), — It is not (even in these cases) a matter of 
 course, to take the father's guardianship away; but the 
 danger to the children must be proximate and serious (0), 
 — So that even a divorced father may continue to be the 
 guardian of his male children (a), just as he may also 
 not so continue (b). However, the Court may now refuse 
 to order the delivery up of a child even to its father (c) ; 
 and may (in favour of the mother) override altogether 
 the common law rights of the father (d) : But these 
 extreme things the Court will not, usually, do; but for 
 incest, it will (e). 
 
 (»•) 4 Edw. VIE. 0. 15 ; 8 Bdw. VII. e. 67. 
 
 («) TTebb v. England, 29 Beav. 57. 
 
 {t) In re Besant, 11 Ch. Div. 508. 
 
 (m) Ex parte Eopkins, 3 P. W. 151. 
 
 [x) Shelley v. Westbrooke, Jao. 266, n. 
 
 {y) Whitfield v. Hales, 12 Vea. 492. 
 
 («) In re Elderton {Infants), 25 Ch. Div. 220. 
 
 (a) Skinner v. Skinner, 13 P. Div. 90. 
 
 (A) Swift V. Swift, 34 Beav. 266. 
 
 (c) 54 Vict. 0. 3, 83. 1, 3. 
 
 (d) 49 & 50 Vict. u. 27. 
 
 (e) 8 Edw. VII. u. 45, 8. 1. 
 
376 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Education of 
 his ward. 
 
 "When guar- 
 dian gives 
 security. 
 
 Guardians 
 must not, in 
 general, 
 change cha- 
 racter of 
 ward's 
 property. 
 
 The guardian determines the mode of (and place for) 
 the education of his ward, — and the Court will aid him 
 in that(/). But, in general, the religious education of 
 the ward must be according to the religion of the 
 father {g), — although the father may have signified to 
 the contrary (^); and a Protestant guardian, if he be- 
 comes a Roman Catholic, — and, conversely, a Roman 
 Catholic guardian, if he became a Protestant, — may be 
 removed on that account alone, — assuming always that 
 the welfare of the infant requires that rather extreme 
 remedy (i) . 
 
 If the guardian wishes to take his ward out of the 
 jurisdiction of the Court, the Court requires security from 
 the guardian, before sanctioning the removal; and (in 
 and \)j the security so given) the guardian usually under- 
 takes, to bring the ward back again within the jurisdic- 
 tion, if and whenever the Court may require him to 
 do so (fc). 
 
 Guardians will not, ordinarily, be permitted to change 
 the personal property of the ward into real property, or 
 his real property into personalty, — Scil., because such a 
 conversion may affect not only the rights of the infant 
 himself, but also (if he should die under age) the rights 
 of his representatives: But where the change is mani- 
 festly for the benefit of the infant, the guardian may 
 effect the conversion (Z), — as he may also do, for necessary 
 repairs or other necessary payments {m) ; and the Court 
 will sanction the act of the guardian, if it be such as the 
 Court would itself (under the like circumstances) have 
 done by its own order (w) ; but the expen&e of all ordinary 
 repairs should, of course, be paid out of income (o) . 
 
 (/) See Tremain's case, 1 Str. 167, where, "being an infant, he went 
 ' to Oxford, contrary to the orders of his guardian, who would have 
 ' him go to Cambridge ; and the court sent a messenger to carry him 
 ' from Oxford to Cambridge ; and upon his returning to Oxford, there 
 ' went another, tatn to carry him to Cambridge, quam to keep him there." 
 
 (g) In re Violet Nevin, 1891, 2 Ch. 299. 
 
 (h) In re Newton [Infants), 1896, 1 Ch. 740. 
 
 (») F. V. F., 1902, 1 Ch. 688. 
 
 \k) Ware v. Polhill, 11 Ves. 278. 
 
 (J) Camden (Marquis) v. Murray, 16 Ch. Div. 161. 
 
 [m) In re Jackson, 21 Ch. D. 786. 
 
 («) Ex parte Phillips, 19 Ves. 122. 
 
 (o) Conveyancing Act, 1881, b. 42. 
 
INFANTS . 377 
 
 In all these cases of conversion, there is no equity (as Bepresenta- 
 between the real and personal representatives of the t"es who 
 infant) for a reconversion: But, "all the same, lands pur- taken tefore 
 chased by the guardian with the infant's personal estate *^.® "^^"^e, 
 (or with the rents and profits of his real estate) will be the change,— 
 deemed to remain personalty; and real property turned i»t<>niyif 
 into money will be deemed to remain real estate, — in each ™Sr agT. 
 case, in the event of the death of the infant before he 
 arrives of age : Also, when the Court directs such a con- 
 version, it invariably directs, that the new investment 
 shall (but only in case the infant shall die under twenty- 
 one) be held in trust for the benefit of those who would be 
 entitled to it if it had remained in its original state (p) . 
 But if the infant attains twenty-one (although he should 
 die the next day), his respective representatives must take 
 the property according to its actual condition at the time 
 of the death, — Wherefore a mortgage (rather than a sale) 
 should be resorted to, where a capital sum has to be raised, 
 for expenditure on an infant's estate (g) . 
 
 The sanction of the Court to the marriage of a ward Marriage of 
 of Court (whether male or female) is invariably required mtstbiw'i'S*' 
 to be obtained (r) ; and if a man should marry a female consent of 
 ward (or a woman should marry a male ward), without °"^ ' 
 the sanction of the Court, he or she (and all others con- 
 cerned in aiding or abetting the act) will be guilty of a 
 contempt of Court, — and may be punished by imprison- 
 ment (s) : Moreover, their ignorance of the fact (that the 
 infant is a ward) will not be sufficient to acquit them of 
 the contempt, although it may weigh in determining the 
 severity of their punishment. Also, with a view to prevent- 
 ing the improper marriage of the ward, the guardian may 
 be required by the Court, to enter into a recognisance, that 
 the infant shall not marry without the leave of the Court, 
 — In which case, if the infant should afterwards marry 
 (though without the privity of the guardian), the recog- 
 nisance will (in strictness) be forfeited. And where there improper 
 is reason to suspect an improper marriage being contem- carriage of 
 
 . strained hy 
 
 {p) Foster v. Foster, 1 Ch. Div. 588. injunction. 
 
 (q) III re Jackson, supra. 
 
 (r) Smith v. Smith, 3 Atk. 305. 
 
 (s) Fx parte Mitchell, 2 Atk. 173. 
 
378 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 plated, the Court will (by injunction) interdict communi- 
 cations between the ward and his or her admirer (t), — 
 and (if necessary) will even remove the guardian, and 
 commit the ward to the care and custody of another 
 guardian (u) . 
 
 Settlement 
 must be 
 approved by 
 Court. 
 
 Settlement 
 imder 
 
 Marriage Act, 
 4 Geo. IV. 
 0.76. 
 
 Upon the intended marriage of a ward, the Court (upon 
 petition) refers it to Chambers, to ascertain and report, 
 whether the match is a suitable one, — and also what settle- 
 ment ought to be made; and if the marriage has been 
 actually celebrated without its sanction, the Court compels 
 a suitable settlement, — and commits the husband for his 
 contempt, and refuses to discharge him until he has made 
 the proper settlement (a;) . Also, under the 4 Geo. IV. 
 c. 76, the guardian of any minor, who has married without 
 his consent, may obtain a declaration of forfeiture against 
 the party, who (by falsely stating that such consent has 
 been given) shall have procured the marriage, — and the 
 Court will thereupon decree a settlement on the other 
 party and the issue of the marriage (y) . 
 
 Binding settle- 
 ments by 
 infants under 
 18 & 19 Vict. 
 e. 43. 
 
 By the Infants' Settlement Act, 1855 (18 & 19 Vict, 
 c. 43), an infant, — ^not being under twenty years of age if 
 a male, or seventeen years if a female, — is enabled (with 
 the approbation of the Court, to be obtained on petition or 
 summons) to make a binding settlement on marriage of 
 his or her real and personal estate (whether in possession 
 reversion remainder or expectancy), — Scil., as fully as if 
 he or she were of full age (and not more fully (z)), — and 
 so that the settlement shall (except as to any estate tail of 
 the infant) remain binding on him or her, although he or 
 she should afterwards die under age. 
 
 Father bound A father (being bound to maintain his children) will 
 *9 "hi^^ren ^°^' "^**^^^2/j ^^^^ ^^7 allowance out of their property for 
 though there that purpose; but where the father is not able to give 
 
 (t) Pearce v. GmtchfieU, 14 Ves. 206. 
 
 (m) Tamhes v. Elers, 1 Dick. 88. 
 
 \x) Field V. Moore, 7 De G. M. & G. 691. 
 
 (V) In fe Sampson and Wall, 25 Ch. Div. 482. 
 
 \i) Seaton v. Seaion, 13 App. Ca. 61. 
 
INFANTS. 379 
 
 his child an eiucation suitable to the expectant fortune of is a provision 
 the child, maintenance will be allowed. Also, if there ten^ce"' 
 is a contract (amounting to a trust), that a particular whenfatheri* 
 property shall lie applied for the maintenance and educa- entitled to an 
 tion of the children (a), that property (or a sufficient part 
 of the income thereof) must be applied without reference 
 to the ability or inability of the father to maintain and 
 educate the children; and, in such a case, the past accumu- 
 lations of income may also be, from time to time, resorted 
 to (and used) for the purpose (b) . 
 
 In case a father should apply his child's property Howaiiow- 
 towards its maintenance, under circumstances in ivhich ^'"'Y ^ j v 
 he .would not have been allowed anything for maintenance, 
 he may be ordered to refund : And, on the other hand, 
 when he has applied his own property for the child's 
 maintenance, under circumstances in which he would have 
 been allowed something for that purpose, he will receive 
 a sum in respect of such past maintenance (c) . And, in 
 allowing maintenance for an infant, regard will be had 
 to the state and condition of the family: For example, 
 where there are younger children (numerous and unpro- 
 vided for), the Court will make a liberal allowance to 
 the eldest son (as being in loco patris {d)), in order that 
 he may be the better able to maintain his brothers and 
 sisters, — and so derive (indirectly) a greater benefit him- 
 self from their society (e) ; and a liberal allowance will 
 also sometimes be made for infants, in order to relieve or 
 assist their parents even, when these are in comparatively 
 distressed circumstances (/) : But note, that, in all these 
 cases, it is the infant's benefit which is considered, 
 although the benefit he derives may sometimes be slightly 
 remote. 
 
 Upon the application for maintenance, the Court has Past main- 
 jurisdiction (without suit) to charge the expenses of the chargroiTreai 
 
 estate of 
 infant for. 
 
 (m) Wilson V. Turner, 22 Ch. D. 521. 
 
 (b) EdvMrds v. Grove, 2 De Gr. F. & J. 210. 
 
 {c) Welch v. Chanmll, 26 Ch. Div. 68. 
 
 (d) Petre v. Petre, 3 Atk. 511. 
 
 [e) Bradshaw v. Bradshaw, 1 J. & W. 647. 
 (/) Brown v. Smith, 10 Ch. Div. 377. 
 
^^^ THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 past maintenance (together with the costs of the applica- 
 tion) on the corpus of the fee simple estates of the in- 
 fant (ff), — such charge being in the nature of a judgment 
 for neoessaries, followed up by execution against the 
 infant's real estate (h) : But no such charge can be made, 
 if the infant is entitled in remainder only (and not in 
 possession), or is entitled in tail only (^). 
 
 Maintenance, Where a testator leaves property of considerable value, 
 when not to be accumulated for twenty-one years (or any specified 
 
 fents'and* °* number of years), — and directs that the accumulations 
 profits directed shall he laid out in the purchase of land, to be held in trust 
 tobeacoumu- fo^. j^ ^ f^^. ^-^ |-|g ^^g^ afterwards for his eldest son 
 
 for life, and for the first and other sons of such eldest son 
 successively in tail, — If A. B. is possessed of a moderate 
 income only (which is insufficient for the maintenance and 
 education of his sons, to fit them for the prospective 
 positions in life which by reason of the testator's deferred 
 bounty they will fill), the Court will (notwithstanding the 
 express trust for accumulation) allow to the father an 
 immediate present allowance for the maintenance and 
 general benefit of the infants (k). And where a testator 
 directed the income of his real and personal estates to be 
 accumulated for twenty-one years, and gave the accumu- 
 lated estates to his sister for life, with successive re- 
 mainders to her three sons and their respective children, — 
 The Court directed a present annual sum to be paid to the 
 sister out of the income of the personal estate for the 
 maintenance and education of her three sons (Z) . But the 
 Court requires to be satisfied (in all such cases), that there 
 are special circumstances justifying it, in practically set- 
 ting aside (pro tanto) the trust for accumulation, — a.nd 
 (in the absence of such special circumstances) will not 
 interfere with that trust, notwithstanding the trust may 
 be hurtful and capricious (m) . 
 I 
 
 (g) In re Sowarth, L. R. 8 Ch. App. 415. 
 
 \h) In re Hamilton, 33 Ch. Div. 397. 
 
 (i) In re Hambrovgh, Hmnhroiigh v . Sambrough, 1909, '2 Ch. 620. 
 
 (7c) Havelock v. Emelock, 17 Ch. Div. 807. 
 
 (?) CoUitis V. Collins, 32 Oh. Div. 229. 
 
 (m) Hunt V. Farry, 32 Ch. Div. 383. 
 
381 
 
 CHAPTER XXIII. 
 
 LUNATICS, IDIOTS, AND PERSONS OF UNSOUND MIND. 
 
 Unsoundness of mind, of itself, gives the Court of Chan- Unsoundness 
 eery no jurisdiction (a), the jurisdiction of that Court °roun(ffoT 
 relative to the estates of lunatics arising (where it arises) jurisdiction in 
 upon some independent ground of trust, partnership, or equity. 
 the like (a): In fact, the jurisdiction in Lunacy was in xhejurisdio- 
 existence long before the Court of Chancery existed, — tionwasinthe 
 the jurisdiction having been originally vested in the uponmqidsi- 
 Court of Exchequer as being the Court which had special tion,— because 
 care of the crown's prerogative in matters of revenue, revenue^ ° 
 — Which prerogative was subsequently defined or regu- 
 lated by the Statute of Prerogatives (17 Edw. II.), the 
 9th chapter relating to idiots, and the 10th chapter to 
 lunatics; and it was under that statute, that the crown 
 acquired (in effect) the management of the estates of 
 idiots and of lunatics. 
 
 The jurisdiction of the Court of Exchequer in Lunacy Exchequer 
 was very early superseded; and the Lunacy jurisdiction i^^JJi^foy^TraM- 
 was subsequently vested in divers Courts and in divers ofE- ferred to Lord 
 cials (not profitable to specify here), — Until, eventually, 
 the practice became a constant one, for the crown to 
 delegate the care and custody of lunatics (and of their 
 estates) to the Lord Chancellor, — not as being the Presi- 
 dent of the Court of Chancery, but as being an executive 
 ofSoer of the highest standing in the realm, and enjoying 
 the most intimate personal relations with the crown. But, 
 nota bene, the fact (although an accident), that the Lord 
 Chancellor was also a great judicial officer (and com- 
 petent as an adviser in matters of law and equity), was 
 a reason (not without its weight) which helped to per- 
 manently fix the Lunacy jurisdiction in the President 
 of the Chancery Court. 
 
 (ffl) BeallY. Smith, L. B. 9 Oh. App. 85. 
 
 Chancellor. 
 
382 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Lords Justices 
 in Chancery 
 coneuiTently 
 with, and in 
 aid of, Lord 
 Chancellor, 
 acquired the 
 jurisdiction, 
 and now 
 exercise it. 
 
 Shortly after the appointment of the Lords Justices in 
 1851 (&) as a Court of Appeal in Chancery (with all the 
 original and other jurisdiction of the Lord Chancellor in 
 the Court of Chancery), — a warrant under the Queen's 
 sign-manual was made out to each of the Lords Justices, 
 intrusting him with the care and custody of lunatics ; and 
 under the Lunacy Regulation Act, 1853 (c), the jurisdic- 
 tion of the Lords Justices in Lunacy (concurrently with 
 that of the Lord Chancellor) was continued. Then, after- 
 wards, upon the coming into operation of the Judicature 
 Acts, 1873-75, — when the Lords Justices became a mere 
 limb of the new Court of Appeal (and were therefore 
 indirectly deprived of all original jurisdiction in the 
 Chancery Division of the High Court), — the Lords 
 Justices were appointed (by virtue of s. 51 of the Judi- 
 cature Act, 1873) " additional judges " of the High Court 
 of Justice, — for the pnrpose of more effectively exercising 
 their jurisdiction in Lunacy (d), and so as to possess (and 
 be able to exercise) all the original jurisdiction of Chan- 
 cery, that was ancillary to the jurisdiction in Lunacy (e). 
 And, by the Lunacy Act, 1890 _(/), ss. 108—149, the 
 jurisdiction of the Lords Justices is (in effect) continued, 
 — but with a recognition of the fact, that the Lunacy juris- 
 diction is peculiar, — And, for example, the appeal in 
 Lunacy from the Lord Chancellor (or from the Lords 
 Justices) would still be to the Judicial Committee of 
 His Majesty's Privy Council (as distinguished from the 
 House of Lords (g)), — Excepting that divers orders in 
 Lunacy do (in fact) go (on appeal) to the Court of Appeal 
 itself (h), — these last-mentioned ^.ppeals being (for the 
 most part) from the Masters in Lunacy. 
 
 Seally. Smith, 
 —what pro- 
 
 Chancery 
 would be a 
 contempt on 
 the Lunacy 
 jurisdiction. 
 
 A person of unsound mind is, usually, found a lunatic 
 on due inquisition: And in such a case, a committee is 
 appointed of the person and of the estate of the lunatic; 
 and such committee (once he is appointed) becomes an 
 officer of the Court in Lunacy; and no person may there- 
 
 (S) 14 & 15 Vict. u. 83. 
 \c) 16 & 17 Vict. c. 70. 
 
 (d) Re Catheart, 189.3, 1 Ch. 466. 
 
 (e) Ih re Pktt, 36 Ch. Div. 410. 
 (/) 53 Vict, c 5. 
 
 (g) Re Windham, 4 De G. F. & J. 53. 
 (A) Re Sefton, 1898, 2 Ch. 378. 
 
LUNATICS, IDIOTS, ETC. 383 
 
 after {without first obtaining the leave of the Court in 
 Lunacy) commence or continue any proceedings for the 
 lunatic's protection {i) . Nevertheless, a solicitor may 
 lawfully enough commence (and also continue) an action, 
 on behalf of a person whom he believes to be sane, and 
 although an inquiry should be pending regarding the 
 plaintifi^s state of mind, — Only, once the lunacy is found 
 (or once there is a constat that the intending plaintiff 
 is insane), the solicitor should no longer continue the 
 action, — Because application may at all times be made 
 to the Court in Lunacy (by the lunatic's committee) for 
 the Court's sanction as to anything that may require to 
 be done. However, on the lunatic's death, the whole 
 jurisdiction of the Court in Lunacy comes to an end, 
 and the jurisdiction in Chancery is restored again in 
 full(fe). 
 
 For the better guidance of the committee in Lunacy, Lunacy Act, 
 the Lunacy Act, 1890 (in its 116th and following Sln^^' 
 sections), contains various directions and authorities to management 
 the committee regarding the management of the lunatic's ^'°^^^- 
 estate; and when these directions or authorities do not 
 suffice, or are inapplicable, the Court in Lunacy will (by 
 virtue of its general jurisdiction) give any special 
 direction {I) . 
 
 Regarding the maintenance and support of the lunatic. Lunatic's 
 the Court (as regards all legal questions and matters) ™aUowance' 
 follows the law, — and will {e.g.) hold the lunatic's estate for, how 
 to be liable for all necessaries supplied to him{m); and regulated, 
 charging orders against his estate may be obtained, on 
 judgments against the lunatic for such necessaries {n), — 
 and even against funds which are in Court (o). But, 
 as regards matters falling within its own exclusive juris- 
 diction, the Court in Lunacy acts very much according 
 to its own discretion, — ^having regard to the magnitude of 
 the estate and to the necessities of the lunatic {p) : And, 
 
 (i) Beall v. Smith, L. R. 9 Ch. App. 85. 
 
 (h) In re Seager-IIutit, deceased, 190G, 2 Ch. 295. 
 
 (1) Re Ray, 1896, 1 Ch. 468. 
 
 (m) Rhodes^. Rhodes, 44 Ch. Div. 94. 
 
 («) Re Hvnt, 1900, 2 Ch. 64, n. 
 
 (o) Llewellin v. Brown, 1900, 1 Ch. 489. 
 
 (p) Re Whitaker, 42 Ch. D. 119. 
 
384 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 Eights of his 
 creditors, — 
 subordinated. 
 
 accordingly, the rights of the lunatic's creditors are 
 subordinated to the needs of the lunatic, — Sdl., as re- 
 gards all the property of the lunatic which has oome 
 within the protection of the Court {q), and to the extent 
 of the lunatic's interest therein (r) : And if the lunatic 
 is a bankrupt, the title of the trustee in his bankruptcy 
 is subject to the necessary expenses of, the lunatic's main- 
 tenance being first duly provided for out of his pro- 
 perty (s), — Except only as regards any portion of the 
 property already come to the hands of the bankruptcy 
 trustee (if). 
 
 His next of 
 kin, — pro- 
 vision for. 
 
 In the case of lunatics (equally as in the case of in- 
 fants), the Court will (and not unfrequently does) make 
 an allowance designed to benefit directly the near rela- 
 tives of the lunatic, and in that way to indirectly benefit 
 the lunatic himself (m); but the Court is very chary of 
 increasing that allowance, — or even of making it, in the 
 first instance (x); and as regards anything not expended 
 at the lunatic's death, the committee is accountable (y) . 
 And, in one case, where a lunatic advanced in years was 
 tenant for life, with remainder in tail to his nephew, the 
 Court directed an allowance of £500 per annum to be 
 made to the nephew (out of the surplus income of the 
 lunatic, after providing for the lunatic's maintenance), — 
 but upon the terms of the nephew charging the estate 
 with the repayment of the sums received (0) . 
 
 Conversion of 
 
 lunatic's 
 
 estate. 
 
 His repre- 
 sentatives take 
 the fund in the 
 character in 
 which it is 
 actually 
 found ; 
 
 In the case of a lunatic, the Court will not generally 
 alter the state of the lunatic's property, — so as to affect 
 the rights of his representatives: But where it is for the 
 benefit of the lunatic himself, — the interest of the lunatic 
 being the sole object of consideration, — the Court will 
 make the conversion ; and there not being (as between 
 the heir and the next of kin of the lunatic) any equity 
 for a re-conversion, they will respectively take the pro- 
 
 (y) He Clarke, 1898, 1 Ch. 336. 
 
 (r) JDavies v. Thomas, 1900, 2 Ch. 462. 
 
 (s) Jn re Farnham, 1895, 2 Ch. 799. 
 
 (t) In re Farnham, 1896, 1 Ch. 836. 
 
 (u) In re Wearer, 21 Ch. Div. 616. 
 
 {x) In re Darling, 39 Ch. Div. 208. 
 
 [y) Strangeways v. Read, 1898, 2 Ch. 419. 
 
 (z) In re Sparrow, 20 Ch. Div. 320. 
 
LUNATICS, IDIOTS, ETC. ,385 
 
 perties (to which they are respectively entitled) according 
 
 to the actual character in which they find them (a) . 
 
 However, where the Court itself makes the conversion, But the order 
 
 the order, in general, preserves the original character of of the Court 
 
 the property,— providing (e.g.) in a partition action, that ^otlclthe 
 
 the proceeds of sale shall be settled to the same uses as rights of the 
 
 those to which the land stood settled before the sale (6): tiPer^"*"" 
 
 Also, in barring the estate tail of a lunatic, the Court will 
 
 so exercise its power in that belialf , as not to affect the 
 
 rights of the remaindermen (c) ; and in enfranchising 
 
 the copyholds of a lunatic, the Court will not affect the 
 
 beneficial rights of the customary heir (d) ; and even 
 
 where chattels have been specifically bequeathed by the 
 
 lunatic, and they are afterwards sold in his subsequent 
 
 lunacy, the legacy will not, in the general case, be adeemed 
 
 by the sale (e). But, nota bene, all these matters should 
 
 be provided for at the time, and in and by the order itself, 
 
 — so as not to be left to be litigated afterwards (/) . 
 
 As regards lunatics not so found, — Where there are Lunatics not 
 trusts to execute, or the fund has been paid into Court ?° *°^+-'~ ■ 
 (Chancery Division), the Court acquires jurisdiction respect of. 
 over the lunatic {g) ; and in the case of any such lunatic 
 (or in the case of any one who is lawfully detained as a 
 lunatic (A)), the Chancery Division will recognise and 
 aflirm the position of one assuming to act as the guardian, 
 — and will (e.g.) direct payment out to him of a fund in Allowance for 
 Court (belonging to the lunatic), upon his undertaking maintenance 
 to apply the income for the maintenance of the lunatic (i); 
 and even the capital itself will (in a proper case) be 
 directed to be so paid out and applied (k) . 
 
 In a partition action also, such a lunatic may sue by his Diiections s 
 
 ■■ ■ ' to, and 
 
 managemei 
 of, estate. 
 
 next friend (I) : And where a lunatic not so found is the *"> ^'^^ 
 
 ^ ' management 
 
 (a) Pendarms v. Sarttey, 1901, 2 Ch. 498. 
 
 (*) Ait. -Gen. v. Ailesbury [Marquis), 12 App. Ca. 672. 
 
 (c) Ee Fox, 33 Ch. Div. 37. 
 
 (d) Re Ryder, 20 Ch. Div. 514. 
 
 («) In re Palmer, Thomas v. Marsh, 1911, W. N. 171. 
 
 (/) In re Hole, 1905, 2 Ch. 384. 
 
 (g) Re Pagani, 1892, 1 Ch. 236. 
 
 (A) Re Watkins, 1896, 2 Ch. 336. 
 
 (i) Re Brandon, 13 Oh. Div. 773. 
 
 (i) Re Tuer, 32 Ch. Div. 39. 
 
 (Z) Halfhide v. RoUnson, L. B. 9 Ch. App. 373. 
 
 C 
 
386 
 
 THE ORIGINALLY EXCLUSIVE JURISDICTION. 
 
 sole surviving trustee of a settlement, the Court has juris- 
 diction to appoint a new trustee in his place (m), — and 
 occasionally (but not in all cases) to make a vesting order. 
 But the jurisdiction (as to vesting orders) is now better 
 exercised under the Lunacy Act, 1890, ss. 133 — 142; 
 and (as regards also the beneficial properties of the lunatic) 
 it is usually preferable to proceed before the Master 
 in Lunacy, — Scil., under the Lunacy Act, 1890, the 116th 
 and following sections of that Act having given many 
 facilities (by means chiefly of a Receiver (n)) for the 
 management of the property of this class of lunatics, 
 including the exercise of his power to lease under the 
 Settled Land Act, 1882 (o). But if it was desired, that 
 a lunatic not so found should exercise (as tenant for life) 
 the power of sale given to him by the last-mentioned 
 Act, even the Court of Lunacy could not give its sanction 
 to that, unless the lunatic was first found a lunatic (p) : 
 However, he may now exercise that power of sale also (q) ; 
 and he always could exercise the express power of sale 
 contained in the settlement. 
 
 Debts,— 
 payment of. 
 
 The creditors of a lunatic not so found cannot get paid 
 out of his estate', to the prejudice of the lunatic himself 
 being properly provided for; but (subject to that) they 
 may proceed against him for his debts, — being debts for 
 necessaries supplied to him (r) . 
 
 Past main- 
 tenance, a 
 provable debt ; 
 
 And on the lunatic's death, the guardians of the union, 
 which was changeable for his maintenance and which has 
 maintained him, will be entitled to prove as creditors for 
 the cost of his maintenance, — Scil., in a creditor's action 
 for the administration of the lunatic's estate (;s), the relief 
 being, — usually (t), but not invariably (u), — ^limited to six 
 years' arrears. Also, nemble, these guardians may, in 
 
 (m) He M., 1899, 1 Ch. 79. 
 
 {n) ReB. A. S., 1898, 2 Ch. 392. 
 
 (o) He Salt, 1896, 1 Ch. 117. 
 
 (;;) Se Martha Baggs, 1894, 2 Ch. 416, n. 
 
 (q) 8 Edw. VII. 0. 47, s. 1. 
 
 (V) Re Rhodes, 1890, 44 Ch. D. 94. 
 
 (s) Me Taylor, 1901, 1 Ch. 4S0. 
 
 \t) Stamford Unions. Bartlett, 1899, 1 Ch. 72. 
 
 {«) Wandsworth Union v. WorJcinglon, 1906, 1 K. B. 420, 
 
LUNATICS, IDIOTS, ETC. 387 
 
 a proper case, obtain (for this purpose) a grant of 
 administration to some nominee of their own {x) . Also, and recover- 
 even in the lunatic's lifetime, these guardians may obtain the'^iunatic's 
 a magistrate's order, giving them the means of enforcing lifetime, 
 payment out of the lunatic's estate, — But not po as to 
 interfere with the possession of any receiver in the 
 Lunacy {y), and not so as to oust in any way the jurisdic- 
 tion of the Court of Lunacy {z) . Also, in the case of a 
 person detained as a criminal lunatic, the crown would 
 iiave all the same rights as the poor law guardians, — and 
 ■without the six years' limit (a) . 
 
 (x) He Edith Mary French, 1910, P. 169. 
 (y) Winkle v. Bailey, 1897, 1 Ch. 123. 
 (z) In re Tye, 1900, 1 Ch. 249. 
 ,(o) Tn re J., 1909, 1 Ch. 574. 
 
 cc2 
 
388 
 
 PART III. 
 
 THE ORIGINALLY CONCURRENT 
 JURISDICTION. 
 
 Concurrent 
 jurisdiction, - 
 nature of ; 
 
 also, growth 
 of, inci- 
 dentally to 
 auxiliary ; 
 
 and illustra- 
 tion of. 
 
 The originally oonourrent jurisdiction of equity was a 
 jurisdiction in respect of legal rights, — the jurisdiction 
 being assumed and exei-cisedj either because the remedy in 
 equity was a mor& perfect remedy than the remedy at 
 law (a), or because the remedy at law either never existed 
 at all (&), or was become unavailable (c) : But, occasion- 
 ally, the concurrent jurisdiction might arise out of the 
 auxiliary jurisdiction, — ^an application for the cdd of 
 equity, for the better enforcement of a legal right, some- 
 times disposing* the Court to enforce also the legal right: 
 For example, if the suit in equity was for an injunction^ 
 in aid of the action of waste at law, equity (on granting 
 the injunction) might have granted also the damages for 
 the waste (d) : Also, where the suit in equity was for 
 discovery, in aid of an action at law for damages, equity 
 might have both granted the discovery and awarded also 
 the damages: For example, in Atkinsv. Farr{e), where the 
 defendant (who weis a gentleman of the town) had given 
 to the plaintifi (who wa,s an orange girl at a theatre) 
 his bond in £1,000, conditioned for the payment to her of 
 a sum of £500 in cash, if he did not marry her within the 
 year; and the defendant (by a subterfuge) got the bond 
 back again from the plaintiff,— and burnt it, — In the 
 plaintiff's suit in equity for discovery of the bond, the 
 Court gave her that discovery, and gave her relief in 
 damages also: and the plaintiff having meanwhile died, 
 her mother (as her administratrix) obtained payment of 
 the £500 with interest and costs. 
 
 («) Ochsenbein v. Papelier, L. R. 8 Ch. App. 695. 
 (4) Jenner v. Morris, 3 De G. F. & J. 45. 
 (c) I'uUeney v. Warren, 6 Ves. 72. 
 \d) Jesus College v. Bloom, 3 Atk. 262. 
 («) 1 Atk. 287. 
 
389 
 
 CHAPTEE I. 
 
 ACCIDENT. 
 
 " Accident " (in equity) is any unforeseen event occasion- Accident,— 
 ing loss, and which (or the loss occasioned by it) is not of^liTeTS'u? 
 attributable to any misconduct in the party, or to any 
 negligence (or culpable inadvertence) on his part. For 
 example, if an annuity (given by wHl) has been directed 
 to be secured by the purchase of stock, — ^and an invest- 
 ment (sufficient for the purpose) at the time has been 
 made, but the stock is afterwards reduced by Act of 
 Parliament, — In such a case, equity relieves the executor 
 from all liability on that account (a), and decrees the re- 
 siduary legatee to make up the deficiency, — Soil., where 
 the residue is liable for the annuity (and not other- 
 wise (&)). 
 
 In some cases of accident, the Courts of law (even from Cafes for 
 the earliest date) afforded adequate relief,— and latterly and*^equ%7 
 these Courts came to interpose more frequently, the 
 Legislature having (from time to time) conferred on 
 them the remedial powers of Courts of Equity; but the 
 Courts of Equity did not lose their jurisdiction, by reason 
 merely of the Courts of law acquiring it (c) . 
 
 There are three groups of accidents in which equity 
 exercises jurisdiction, namely, — 
 
 (1) Lost and Destroyed Documents; 
 
 (2) Imperfect Executions of Powers; and 
 
 (3) Erroneous Payments. 
 
 (a) Davies v. Wattier, 1 Sim. & St. 463. 
 (5) Att.-Gen. v. Poulden, 3 Ha. 555. 
 [e) Kemp v. Pryor, 7 Ves. 246, 250. 
 
390 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 (A) Docu- (A) Lost and Destroyed Documents. — Firstly, A» 
 
 destroyed ""^ regards lost Bonds, — There was originally no remedy on 
 (1) Bonds these at law, — without profert (or production) of the bond 
 heing lost. in Court (and oyer of the bond), — ^although, afterwards,, 
 a Court of law (upon allegation of the loss) dispensed 
 with the profert (d) ; but equity alone could (formerly) 
 have given the suitable relief, — that is to say, relief upon 
 condition that the plaintiff should give an indemnity 
 (2) Title-deeds against the loss. And, Secondly, As regards lost Title- 
 hemg lost. Deeds, — The loss was not of itself a ground for coming 
 into equity, because the law might (upon proof of the 
 loss) have received secondary evidence of them; and to- 
 enable any one to come into equity for relief by reason 
 of the loss, it was therefore necessary, to allege some 
 special inconvenience from the loss, — as (e.g.) the desire 
 to be established in the possession (e), or the undue peril 
 to which the loss exposed the plaintiS in the future asser- 
 tion of his rights (/) . 
 
 The relief The relief which the Court gave, in case of accidents, 
 
 was adapted to the circumstances of the case : For 
 example, in a case where leasehold property of the wife's 
 had been settled on the husband for his life, with re- 
 mainder to the wife (who was the defendant) for her life, 
 with remainder (fa,iling issue of the marriage) to the 
 plaintiff (who iwas the defendant's niece by marriage); 
 and the husband died, and the wife survived, and there 
 was no issue; and the wife had burned the settlement,— 
 The Court decreed the wife to assign the property to 
 trustees, to hold upon the still subsisting trusts of the 
 settlement, — Scil., because the possession itself could not 
 be given to the plaintiff, while and so long as the widow's 
 prior life-interest continued (g) . 
 
 Thirdly, As regards lost Negotiable Instruments, — If 
 instrumeii s,— ^ ^^y^^ note, Or cheque (whether negotiable by indorse- 
 ment and delivery, or by delivery only) was lost, no action 
 was competent at law, either on the bill or note itself 
 or on the consideration (h) ; and, therefore, the remedy 
 
 accidents, — 
 is adapted 
 to the 
 circumstances. 
 
 (;3) Negotiable 
 instruments, — 
 (a) being lost. 
 
 (d) Iteadv. Brookman, 3 T. R. 151. 
 
 [e) Dalsion v. Coatsworth, 1 P. Wms. 731. 
 (/) Dormer v. Fortescue, 3 Atk. 132. 
 
 [g) Dalston y. Coatsworth^ supra. 
 (A) Growe y. Clay, 9 Exch. 604. 
 
ACCIDENT. 391 
 
 was in equity. But, as regards bills and notes, the Bills 
 of Exchange Act, 1882 (i), ss. 66, 70, has now provided, 
 that where a bill is lost before it is overdue, the person 
 who (but for the loss) would be the holder of the bill, 
 may have from the drawer another bill of the same tenor, 
 upon giving the usual indemnity ; and, in any action 
 on the bill (on a sufficient indemnity being given), the 
 loss is not to be set up. But, as regards destroyed 
 negotiable instruments,— The accidental destruction was (b) Being 
 never a ground for coming into equity, because the party '^^"■'""y^^- 
 who (but for the destruction) would have been the holder 
 of the bill, could always have sued at law on the original 
 , consideration (fc), — In which respect, bills and notes were 
 very different from bonds, — ^for the original consideration 
 (for the bond) was merged in the specialty debt due on 
 the bond, and the accidental destruction of the bond was 
 therefore a sufficient ground for coming into equity. 
 
 (B) Defective Execution of Powers. — The total non- (b) Powers,— 
 execution of a mere power will not be aided in equity; relief where 
 but where (either from accident or mistake) there is a execution; 
 defective execution of the power, equity will relieve, — 
 the relief being, however, given, only in favour of the 
 following persons, namely: — (1) A purchaser (I), — which 
 term includes a mortgagee and a lessee ; (2) A 
 creditor (m) ; (3) A wife (n) ; (4) A legitimate child (o) ; 
 and (5) A charity (p). But a defective execution will 
 not be aided, in favour of (e.^r.) A husband (g); A 
 natural child (r) ; A grandchild (s) ; or Eemote Relations 
 generally, or Volunteers (i). 
 
 As regards the defects which will be aided, — These raaj and the defects 
 be said, generally, to be /my which are^ not of the very "^^^^^^ 
 essence and substance of th& power, — a defect (e.g.) in 
 
 45 & 46 Vict. 0. 61. 
 k) Wright v. Maidstone, 1 K. & J. 708. 
 T) Fothergill v. Fothergill, 1 Freem. 257. 
 in) Follard v. Greenvil, 1 Ch. Ca. 10. 
 n) GlifforA v. Burlington, 2 Vera. 379. 
 o) Bruce v. Bruce, L. R. 11 Bq. 371. 
 p) Att.-Gen. v. SMhorp, 2 Russ. & My. 107. 
 ■j) WattY. Watt, 3 Ves. 244. 
 r) Tudor t. Anson, 2 Ves. Sr. 582. 
 s) Watts V. Bullas, 1 P. Wras. 60. 
 t] ChetwyndY. Morgan, 31 Ch. Div. 596. 
 
392 
 
 THE ORIGINALLY CONCUEEENT JURISDICTION. 
 
 Powers in 
 the nature of 
 trusts, — 
 execution of. 
 
 executing the power by will, when the execution should 
 have been by deed (u): But, conversely, if the power was 
 to be executed by will only, and it was executed by deed, 
 no relief would have been granted (x) : Nor would equity 
 have aided, where the power was executed without the 
 consent of the persons required to consent to its execu- 
 tion (t/). 
 
 It is necessary to distinguish, of course, between mere 
 powers and powers in the nature of trusts, — powers in 
 the nature of trusts being as obligatory upon the con- 
 science as actual trusts themselves: That is to say. If 
 a man is invested with a trust, to be ejfected by tJie. 
 execution of a power, his execution of the power is im- 
 perative; and if he refuse to execute it (or die without 
 having executed it), equity interposes to give the suitable 
 relief (2) . 
 
 (0) Accidents 
 in payments 
 by executors 
 or adminis- 
 trators, — 
 relief, in 
 cases of. 
 
 (C) Erroneous Payments. — In the course of the ad- 
 ministration of estates, executors and administrators often 
 pay debts and legacies, upon a well-founded belief, that 
 the assets are sufficient for all purposes; but afterwards 
 (from unexpected occurrences, or from unsuspected debts 
 and claims coming to light), there proves to be an in- 
 sufficiency of assets to pay the debts, — much less, the 
 legacies: Now, in such a case, the executors were entitled 
 to no relief at law; but if they had acted in good faith 
 and with due caution, they were entitled to be relieved 
 in equity: For example, if the goods of the testator had 
 been stolen, the executor would not in equity have been 
 charged with these (a) ; and if goods of a perishable 
 nature had depreciated without any default in the execu- 
 tor, he was not in equity required to answer their original 
 value (6); and that is the view which is now accepted 
 in Courts of law also, regarding the executor's posi- 
 tion (c) . But the executor would not have been per- 
 
 Tolleit V. Tollett, 2 P. Wms. 489. 
 x) AAne]) V. Fieldy Amb. 654. 
 y) Mansell t. Mansell, 2 Bro. C. C. 450. 
 z) Broun v. Biggs, 8 Ves. 674. 
 a) Jones v. Lewis, 2 Ves. Sr. 240. 
 t) Clough V. Bond, 3 My. & Cr. 496. 
 [c) Job V. Job, 6 Ch. Div. 562. 
 
ACCIDENT. 
 
 393 
 
 mitted to call that an accident, which was attributable to 
 some neglect on his part, — or which was a mistake of 
 law on his part: For example, if an executor distributes 
 the residuary estate on a wrong principle of law, he will 
 be answerable (although his mistake is one purely of 
 law(,<i)); and similarly, if the theft or the depreciation 
 has arisen from (or has been facilitated by) the executor's 
 neglect of duty. 
 
 (D) Non-Reliervable Accid'ents. — In matters of positive (d) Cases 
 contract, equity would not give relief, — it being no ground ^f^^t^gl^l 
 for the interference of equity, that the party has been relief: 
 prevented by accident from fulfilling his contract: For (i) Lessors 
 example, if a lessee covenants to pay rent, or covenants to 
 repair, — which duty of repairing may (and usually will) 
 extend to rebuilding, — he will be bound (in equity, as 
 well as at law) to pay the rent or to do the repairs, notwith- 
 standing the destruction of the premises by fire, earth- 
 quake or other inevitable accident (e), — Scil., because he 
 might (by his contract) have provided for such contin- 
 gencies, and the law will otherwise presume an absolute 
 liability: Nor will the payment of the rent be suspended 
 even, during the period of the rebuilding (/), — unless the (la) Vendors 
 contract should so provide: And what is above stated as ^""i '^e^dees. 
 applicable between lessors and lessees, is (in substance) 
 applicable also as between vendors and vendees, — the 
 maxim (or rule) being, " Res perit domino " (g). Bufthe 
 hardship on the lessee or purchaser is (in such cases) ap- 
 parent rather than real, — Because, of course, the lessee 
 (or purchaser) can always (at a trifling cost) insure him- 
 self against the loss by fire or earthquake; and the in- 
 surance might be (and usually is) made to extend (in the 
 case of leases at a rent) to include also the rent payable 
 during the period of the rebuilding. 
 
 But note, that where the duty is imposed by the law (2) Absolute 
 (and not by the contract of the parties), and the duty is obligations,— 
 
 {d) Billiard v. Fulford, 4 Ch. Div. 389. 
 («) Fym V. Blackhurn, 3 Ves. 38. 
 (/) Leeds Y. Cheetham, 1 Sim. 150. 
 
 {g) Faine v. MelUr, 6 Ves. 349 (Jke) ; Cass v. Sudel, 2 Vern. 280 {earth- 
 quaJce) ; Barr v. Gibson, 3 Mee. & W. 390 {deterioration). 
 
394 
 
 THE ORIGINALLY CONCUEEENT JURISDICTION. 
 
 charged for 
 the tuture, 
 although good 
 for the past. 
 
 (3) Contracts, 
 where parties 
 are equally 
 improvident 
 against con- 
 tingencies. 
 
 (or becomes) impossible of fulfilment, through no fault 
 of the party, — In such a case, the duty will be discharged 
 even at law, and no suit in equity for relief therefrom was 
 ever necessary: That is to say, the obligation, although 
 it should be absolute in terms, will be taken to have pro- 
 ceeded upon a basis which has since become non-existent, 
 — Whereby both the parties are discharged in respect of 
 the future, all past payments, however, remaining and 
 continuing good (h) . 
 
 Equity would not (nor will) give relief, where the 
 parties are equally innocent, — that is to say, have been 
 equally improvident against contingencies : For example, 
 if there is a contract to sell at a price to be fixed by an 
 award during the life of the parties; and one of the 
 parties dies before the award is made, — The contract fails, 
 and equity will not enforce it upon the ground of acci- 
 dent (i) . Or, if there is a contract to sell goods at a price 
 which (by the agreement of the parties) shall be fixed 
 by A. B.; and either A. B. dies without having fixed 
 the price, or refuses to fix it, or becomes incapable of 
 fixing it, — In either or any of these cases, the contract 
 becomes void, and will not be performed in equity. How- 
 ever, the cases lastly above exemplified are not to be con- 
 founded with cases in which the parties (to a submission 
 to arbitration) have agreed that the award shall be made 
 within a time specified in the submission, — For the Court 
 may extend the time for making the award (fc). 
 
 (4) Where 
 party, claim- 
 ing reUef , has 
 been guilty 
 of gross 
 
 Equity will, of course, grant no relief to a party (upon 
 the ground of accident), where the accident has arisen 
 from his own gross fault, — Scil., because, in such a case. 
 
 eSgence. there is in fact no accident properly so called. 
 
 (5) Where 
 party claiming 
 relief has no 
 vested right, 
 but only a 
 probability of 
 a right. 
 
 Nor will equity interpose upon the ground of accident, 
 where the claim rests in mere expectancy or volition; and, 
 foi' example, if a testator intended to make a will in favour 
 of A. or B. or C, and is prevented by accident from 
 
 (A) Xrell V. Senri/, 1903, 2 K. B. 740, 756, 760 n. 
 (i) White V. Nutts, 1 P. Wma. 61. 
 (A) Zord V. lee, L. E. 3 Q. B. 404. 
 
ACCIDENT. 395 
 
 doing so, the legatee or devisee (being a mere volunteer) 
 shall have no relief (l). 
 
 Lastly, equity will not interpose (on the ground of (6) Equity 
 accident), where the other party stands upon an equal ^e party) 
 equity, and is entitled to equal protection, — as (e.g.) in where the 
 the case of a bond fide purchaser for Valuable consideration has^aifeqmi 
 
 without notice (m) . equity. 
 
 (l) Whitton V. Mussell, 1 Atk. 448. 
 Im) Maiden v. Menill, 2 Atk. 8. 
 
396 
 
 CHAPTER II. 
 
 MISTAKE. 
 
 Mistake. At law, a mistake which is apparent on the face of the 
 
 document itself will simply be corrected (a) ; and there 
 is, in such a case, no occasion for coming into equity. 
 The mistakes which are fit for equity are of a much 
 more complicated character, involving, usually, questions 
 of construction, questions of conduct, &c., &c.; and gene- 
 rally, the mistake may be either (1) Mistake of law, or 
 (2) Mistake of fact. 
 
 I. Mistake of I. Mistake of Law: — Although ignorance of the law 
 law,— as a jg j^q excuse {Ignorantia legis neminem excusat), still 
 not reiievabie. money paid under a mistake of law may be recovered 
 back, wherever it is inequitable for the defendant to keep 
 the money (6): And, therefore, money paid to an officer 
 of the Court (under this kind of mistake) may always be 
 recovered back (c); and money paid (or credited as paid), 
 in settlement of the claim in an action, and under legal 
 compulsion even, may be recovered back, lohere the 
 recipient knev) of tjie mistake at the time and received 
 the money mala fide (d) . 
 
 An agreement In the absence, however, of any such equity, the rule 
 Y^^^^f^' of law will prevail; and an agreement entered into in 
 binding, where good faith, although under a mistake of law, will be obliga- 
 t'^^ ^t^ *'°''y C^oth at law and in equity) : For example, an agree- 
 ment, whereby the forfeiture of a devise is waived, will 
 be good, — Soil., if deliberately entered into, the parties 
 having the very will itself out of which the forfeitwre 
 arises before them,, while the drafts are preparing; and 
 
 hare been 
 known. 
 
 [a) Burchell v. Clark, 2 C. P. D. 88. 
 (A) Rogers v. Ingham, 3 Ch. Div. 351. 
 {c) Dixon V. Broun, 32 Ch. Div. 597. 
 (4 Ward T. rrallis, 1900, 1 Q. B. 675. 
 
MISTAKE. 397 
 
 they shall not in such a case be relieved on any ground 
 of surprise (e) : That is to say, in order to obtain relief ignorance of 
 against a mistake of law, there must (in the general case) ^ei^known 
 have been either imposition or surprise: For example, if principle of 
 an eldest son (and heir-at-law), knowing that he was the ^^-^t,^ ^^^ 
 eldest son, but too ignoi-ant to know that he was therefore 
 also heir-at-law, should agree to divide the estate with 
 his younger brother, a Court of Equity would relieve, 
 upon the presumption of some imposition practised (/) ; 
 and the Court is in the daily habit of relieving (on the 
 ground of surprise) against agreements which are abso- 
 lutely ill-advised and improvident (g) ; and relief will 
 also be given against agreements entered into under the 
 pressure of trumped up and unreal difficulties {h) . 
 
 On the other hand, a compromise which has been fairly Compromises, 
 entered into, with due deliberation and full knowledge, ^here\ ' 
 will be upheld in a Court of Equity, equally as in a Court doubtful 
 of law; and the knowledge of the plaintiff's solicitor orrffect?^ 
 will, in general, be imputable to the plaintiff (i), — Unless andafuU 
 where it is shown, that the solicitor has misled the 
 client (fc) . And, in particular, in the case of fatnily 
 agreements, — If these have been entered into without con- 
 cealment or imposition on either side, — each of the parties 
 inveetigating the subject for himself, and each communi- 
 cating to the other all he knows, — The Court will hold 
 the parties to their agreement, even although they niay 
 have greatly mistaken their rights {I), — and whether the 
 doubtful point was matter of fact or of law (to), — and 
 even where there was no doubtful point at all (ji). 
 
 But, in order that such family agreements (or arrange- 
 ments) may be supported, there must have been a full 
 and fair communication of all the material circumstances 
 
 (e) Pulhn V.' Ready, 2 Atk. 691 — per Lord Hardwicke. 
 
 (/) Pusey V. Sesbouverie, 3 P. Wmi». 316. 
 
 (g) Cochrane v. Willis, L. E,. 1 Ch. App. 58. 
 
 \h) SeynellM. Sprye, 8 Ha. 227. 
 
 fi) Stewart v. Stewart, 6 01. & F. 911. 
 
 (k) Roberts v. Roberts, 1905, 1 Ch. 704. 
 
 {T) Gordon v. Gordon, 3 Swanst. 463. 
 
 («i) Neale v. Neale, 1 Kee. 672. 
 
 («) Williams y. Williams, L. E. 2 Ch. App. 294. 
 
398 
 
 THE OEIGINALLY CONCUEEENT JUEISDICTION . 
 
 Equity will 
 not aid, where 
 position of 
 parties has 
 been altered ; 
 or against a 
 horidjide 
 purchaser. 
 
 Common 
 solicitor of 
 father and 
 son, — ticklish 
 position of, on 
 a compromise. 
 
 within the knowledge of the parties (o), — Because, mthout 
 full disclosure, honest intention is not sufficient (p): And, 
 U fortiori, if the oonc^alnient of any material circumstance 
 has been fraudulent, the Court will set aside the com- 
 promise, pven where the Court itself has sanctioned 
 it (q), the most solemn decree of the Court being always 
 liable to h& opened on the ground, of fraud (r). 
 
 The disinclination of equity to set aside a family com- 
 promise (entered into bond fide) will be strengthened, 
 where subsequent arrangements have been, made on 
 the footing of the compromise (s) ; and, more particu- 
 larly, where a bond fide purchaser for value is concerned, 
 equity will not grant relief (t). It must be remembered, 
 however, that (in the case of a family arrangement 
 between a father and his son) the solicitor for the father, 
 if he is also a mortgagee of the father, runs great risk, 
 if he get the father and the son to execute (e.g.) a dis- 
 entailing" deed, — and to thereupon liquidate the father's 
 mortgage, although at a reduced rate of interest, and 
 although the terms are otherwise beneficial to both father 
 and son: And in one case of that sort, and after twelve 
 years' delay, the son succeeded in setting" aside the 
 arrangement (and with costs) against the solicitor (mort- 
 gagee of the father), — Scil., because no independent soli- 
 citor had been employed by the son (u) . 
 
 Belief, by 
 consent, on 
 equitable 
 terms. 
 
 Where, in any case, the mistake of law is merely on© as 
 to the true construction of a document, — and all parties 
 acknowledge the mistake, and submit to its correction, 
 upon terms consonant with equity, — For example, where 
 (in a conveyance) one particular tenement is by all parties 
 supposed not to have been included, and it is afterwards 
 found to have been included, but money has meanwhile 
 been expended on the tenement, in the belief that it was 
 
 (o) Greenwood v. Greenwood, 2 De Gr. J. & Sm. 28. 
 
 {p) De Cordova v. De Cordova, 4 App. Ca. 692. 
 
 (?) Brooke v. Ld. Mostyn, 2 De G. J. & Sm. 373. 
 
 (r) Fatch v. Ward, L. R. 3 Ch. App. 203. 
 
 (s) Fersse v. Feme, 7 CI. & P. 318. 
 
 (i!) Maldm v. Menill, 2 Atk. 8. 
 
 («) Savery v. King, 6 H. L. Ca. 627. 
 
MISTAKE. ;i99 
 
 not included, — The Court will (by consent) relieve, the 
 interim expenditure being recouped to the party (x), — 
 and in such a case, the distinction between mistake of law 
 and mistake of fact (as above has been observed) is not 
 regarded (y) . 
 
 Where, in any case, the so-called mislake (whether of Mistake,— 
 law or of fact) is not a mistake at all, but is a mere anambiguity 
 mnbiguity, in the document, — For example, if there is a °f oonstruc- 
 deed of release, wherein the general words of release extend 
 to include rights debts and other things which were not in 
 contemplation at all, — The Court will simply construe the 
 ■deed, — and (construing the general words restrictively) 
 will hold the release to extend only to such rights, and 
 to such debts, and to such other things as were in con- 
 templation {z) . 
 
 II. Mistakes of Foot : — An act done under a mistake of n. Mistake of 
 fact is relievable in equity, — assuming the fact to be fact, —as a 
 material, — and the relief will only vary according as the relievable. 
 mistake is unilateral or is mutual: If, therefore, any one (i) Fact must 
 ■should sell a messuage to another, which was at the time whether"the~ 
 swept away by a flood (a), — or if any one should purchase mistake be of 
 an annuity during the life of A. B., and A. B. was then botii™of the 
 already dead (&), — without either party having any know- parties. 
 ledge of the fact, — Equity would relieve the purchaser, 
 upon the ground, that both parties intended the purchase 
 and sale of a subsisting thing, and implied its existence as 
 the basis of their contract. And (on the same principle) 
 a contract to purchase property which is already the pur- 
 chaser's own, is relievable, — and that, whether the mistake 
 is of the purchaser only, or is the mistake of both the 
 parties (c), and although the Court may itself have sanc- 
 tioned the agreement (d) . And relief will also be given, 
 where the purchase is of a reversion, and the reversion 
 
 [x) Cooper y. FUhhs, L. R. 2 H. L. 149. 
 [y) BanielM. Sinclair, 6 App. Ca. 180. 
 (z) Turner v. Turner, 14 Ch. D. 829. 
 {«■) Sore V. Becker, 12 Sim. 465. 
 
 (b) Strickland v. Turner, 7 Exoh. 208. 
 
 (c) Bingham v. Bingham, 1 Ves. Sr. 126. 
 
 (d) Brooke y. Ld. Mostyn, 2 De G. J. & Sm. 373. 
 
400 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 (2) Party 
 haTing Imow- 
 ledge must 
 have been 
 under an 
 obligation ta 
 discover the 
 fact. 
 
 Oral evidence 
 admissible to 
 prove accident 
 mistake or 
 fraud. 
 
 Mistake 
 implied from 
 nature of 
 the case. 
 
 has already (at the date of the purchase) fallen into 
 possession (e) ; or where the purchase is of a life-policy, 
 and the life is already (at the date of the purchase) 
 dead(/). 
 
 However, even in cases where the fact is material, it 
 must, in general,, be also shown, that the fact is one which 
 could not by reasonable diligence have been known; and 
 if (by reasonable diligence) it might have been known, 
 equity will not relieve {g), — or will only occasionally re- 
 lieve (4), — the means of knowing a thing and the actual 
 knowledge of it being two very different things, and 
 " for get fulness" being excusable sometimes («) . But, as 
 a general rule, where the means of information are 
 equally open to both, and each is presumed to exercise 
 (and does also exercise) his own judgment with regard 
 to the subject-matter, equity will not relieve. Also, 
 where a particular material fact is equally unknown to 
 both, and where (to the knowledge of both) the fact is 
 from its very nature doubtful, — In every such case, if 
 the parties have acted with entire good faith, a Court of 
 equity will not relieve (k) . 
 
 Oral evidence is not, in general, admissible to contra- 
 dict (alter or vary) a written agreement; but you may 
 always use it, to show, that (either by accident mistake 
 or fraud) the vvritten agreement mis-states the true in- 
 tention of the parties, — Sail., because to enforce an agree- 
 ment under such circumstances, would be the highest 
 injustice (l) : Where, therefore, an instrument inter vivos 
 is (by mistake) not what the parties intended, equity 
 will rectify the instrument, — and in so doing, the Court 
 is in no way running counter to the Statute of 
 Frauds (m). 
 
 Equity will also relieve, when the mistake is evident 
 from the nature of the case, — and will (e.g.), occasionally, 
 
 (e) Colyer v. Clay, 7 Beav. 188. 
 
 (/) Scott V. Coiihon, 1903, 2 Oh. 249. 
 
 {g) Canada Bank v. Bank of Hamilton, 1903, A. C. 49. 
 
 {h) HoodT. Maclcwnon, 1909, 1 Oh. 47<3. 
 
 (i) Kelly v. Solari, 9 Mee. & W. 54. 
 
 {k) Mortimer v. Capper, I Bro. C. C. 156. 
 
 [1) Murray v. Parker, 19 Beav. 308. 
 
 (m) Johnson v. Bragge, 1901, 1 Ch. 28. 
 
MISTAKE. ' 401 
 
 treat a joint obligation ^ a joint and several one, — as 
 in the case of a partnership debt (which is a mere joint 
 debt, but which, as between the partners, is the several 
 debt of each), — the obligation (in such a case) already 
 existing (as between the partners) independently of the 
 instrument by which the debt has been subsequently 
 secured or evidenced. But where there is no such pre- 
 existing several liability (n), equity will not treat the 
 joint obligation as several, — Because when the obliga- 
 tion exists only by virtue fif the " covenant," its extent 
 can be measured only by the words of the " cove- 
 tiant" (o); and a joint obligation is, usually, a joint 
 obligation, — and is not (as a matter of course) to be 
 deemed several in equity, — a joint covenant being (in 
 many casee) the only proper covenant (p). 
 
 Mistakes of fact are either unilateral or mutual: And, Eemedyfor 
 Firstly, when the mistake is unilateral, and the contract ^ttJ° 
 has been completed by the due conveyance, the plaintiff (i) when 
 cannot have rectification, — still less can he have rescis- ™^*^^.(J^ 
 sion, — Unless where it would be a fkaud in the defendant, 
 — whether in the case of a sale (g) or in the case of a 
 lease (r), — to retain the advantage of the mistake; or 
 unless where the mistake of the plaintiff has been induced 
 by the conduct of the defendant (s) . 
 
 But, Secondly, when the mistake is mutual, rectifi^a- (2) When 
 tion is of right,— unless where the plaintiff has by his ^S?'^ 
 own laches lost that right: But the Court will sometimes 
 give the defendant the option of having rectification or Rectification 
 else of submitting to rescission (if); and, of course, the optionrocca-"" 
 relief given (whether rectification or rescission) is sionaiiy, given 
 equitable relief, — and is therefore only given upon i,°etween. *" 
 terms (m) . 
 
 A plaintiff will not be guilty of ladhes, — so as to Laches,— 
 lose his right to rectification, — unless he is proved to ^^ererSt 
 
 («) Sumner v. Powell, 2 Mer. 36. 
 
 (o) Rawstone v. Parr, 3 Kues. 539. 
 
 (p) White V. Tyndall, 13 App. Ca. 263. 
 
 \q) May v. Piatt, 1900, 1 Ch. 616. 
 
 (r) Angel v. Jay, 1911, 1 E. B. 666. 
 
 (s) Wildmg v. Sanderson, 1897. 2 Ch. 634. 
 
 (t) Paget v. Marshall, 28 Ch. D. 255. 
 
 (u) Sutherland v. Eeathcote, 1892, 1 Ch. 475. 
 
 8. D D 
 
 imputable, 
 and effect of. 
 
402 
 
 THE ORIGINALLY CONCUERENT JURISDICTION. 
 
 Belief,— 
 how given. 
 
 Mistake'; in 
 
 marriage 
 
 settlements. 
 
 (a) Botli mar- 
 riage articles 
 and settlement 
 before mar- 
 riage. 
 
 (b) Settlement 
 after mar- 
 riage. 
 
 have (for a long time) known of the mistake; but as 
 between a vendor and a purchaser, the purchaser is deemed 
 to know (a;), although the vendor is not deemed to 
 know {y), what is included in the conveyance whereby 
 the purchase-agreement was completed: 
 
 And here it may be convenient to mention, firstly, that 
 where the relief is rectification, you merely indorse the 
 order on the conveyance itself which is rectified 
 thereby {z) ; and, secondly, that,- occasionally, the con- 
 tract itself may (in the case of mutual mistake) be recti- 
 fied, and (as rectified) specifically enforced in one and 
 the same action {a) ; and, thirdly, that a deed which has 
 been cancelled under a mistake may be (in effect) set 
 up again by a Court of Equity (&). 
 
 The rectification of a document is less diflicult, where 
 the mistake is made out by some other (preliminary) 
 document; and with reference to marriage settlements 
 (following upon marriage articles), the following dis- 
 tinctions have been made, namely: — 
 
 (1) When both the marriage articles and the marriage 
 settlement are entered into before the marriage, if the 
 articles and the settlement vary in their terms, the settle- 
 ment will be considered the binding instrument, — Sdl., 
 Because, all parties being at liberty, the settlement wiU 
 be taken as a new agreement (c), — Although, even in that 
 case, if the settlement purports to be. made in pursuance 
 of the articles (d) (or if it can be shown, that the settle- 
 ment must, although not so expressed, have been 
 INTENDED to pwsue the articles (e)), the Court will (in 
 either of these oases) make the settlement conformable 
 to the articles. But 
 
 (2) When the settlement is made after the rnarriage, 
 it will, in all oases, be controlled by the marriage articles, 
 — and rectified accordingly (/) . 
 
 (x) BeahY. Kyte, 1907, 1 Ch. 564. 
 
 (y) Bloomer T. Spittle, L. E. 13 Eq. 427. 
 
 (z) Stock V. Ivimet/j 25 Beav. 235. 
 
 {a) Olleij V. Fislier; 34 Ch. D. 367. 
 
 {b) East India Co. v. Donald. 9 Ves. 275. 
 
 (c) Legg v. Goldwire, Ca. t. Talb. 20. 
 
 (4 W'est Y. Erisey, 1 Bro. P. C. 225. 
 
 (e) Bold V. Eutchimon, 4 De G. M. & G. 568. 
 
 (/) Mignan v. Parry, 31 Beav. 211. 
 
MISTAKE. 403 
 
 And (3) The true contract of the parties will in no 
 case be varied or altered, — So that {e.g.) the erroneous 
 belief by the husband and wife on their marriage, that a 
 particular property stood settled, will be no ground for 
 rectifying the settlement so as to make it include that 
 property (^). 
 
 And (4) The Court cannot, semble, correct a marriage 
 settlement, unless where all the parties interested there- 
 under acknowledge the mistake (h), and request its cor- 
 rection (^), — although (save and except in the case of 
 marriage contracts (k) (including divorce agreements (?)), 
 the mistake need not be (and usually is not) that of both 
 or all the parties. 
 
 And here note, that a voluntary deed (or gift by deed) 
 will not be reformed or rectified, — being either good alto- 
 gether, or else bad altogether (w) . 
 
 As regards mils, if the mistake is evidently a mere Mistakes in 
 lacuna (i.e., a manifest omission), equity will (as a '"^^■ 
 matter of interpretation) supply the omission (n), — and 
 so, in other cases also of a mistake which is plain on the 
 face itself of the will (o); but evidence dehors the will is 
 not admissible to prove the mistake (p) . 
 
 A mere misdescription of the legatee will not defeat (a)Meremia- 
 
 the legacy: But where a legacy is given to a person fegatel*Sl°* 
 
 under a particular character, which he has falsely assumed not defeat 
 
 and which was the alone motive of the gift, he cannot waoy o^^^^ 
 
 demand his legacy (q) ; and where a woman gave a legacy tained by a 
 
 to her husband, — when, in point of fact, he was not her ^^^ persona- 
 husband (having had a former wife living at the date 
 of his marriage with the tes'tatrix), — the bequest was held 
 void (r). But, in a comparatively recent case (s), where 
 
 {g) Barrow v. Barrow, 18 Beav. 529. 
 (A) Fowler v. Fowler, 4 De a. & .T. 250. 
 (i) Sells V. Sells, 1 Dr. & Sm. 45. 
 (A) Bradford v. Romney, 30 Beav. 431. 
 (l) AllcardT. Walker, 1896, 2 Ch. 369. 
 ()«) PhilUpson T. Kerry, 32 Beav. 623. 
 («) Redfern v. Bryning, 6 Ch. D. 133. 
 (o) Key V. Key, 4 De G. M. & G. 84. 
 (p) Miller v. Baintree, 33 Ch. Div. 198. 
 (q) Giles v. Giles, 1 Keen, 692. 
 (?■) Eennell v. Abbott, 4 Ves. 808. 
 (s) Allen V. M'Pherson, 1 H. L. 0. 191. 
 
 dd2 
 
404 
 
 THE ORIGINALLY CONCURKENT JURISDICTION. 
 
 Hemble, the 
 objection to 
 the hequest 
 must now he 
 taken in the 
 Probate 
 Diyision. 
 
 a testator gave all his property to his wife, and appointed 
 her his sole executrix; and she was not his wife, — having 
 had (at the date of her marriage with the testator) a 
 former husband living, — The Court of Chancery de- 
 clined jurisdiction, upon the ground that the matter was 
 one for the Court of Probate, — a decision which cuts 
 away altogether the jurisdiction of the Chancery Division 
 in this class of mistakes, and obliges litigants to take the 
 ohjection in the Probate Division, — excepting where the 
 matter is purely one of the true interpretation (or con- 
 struction) of the will(^). 
 
 (b) Bevocation 
 of legacy on 
 a mistake 
 of facts. 
 
 Where a legacy has been revoked under a mistake of 
 fact, equity could give relief, — and if a testator revoked 
 (e.g.) legacies to A. and B., giving as a reason that they 
 were dead, and they were in fact living, — equity used to 
 hold the revocation invalid, and to decree the legacies (m) : 
 Also, a false reason given for a legacy will be no ground 
 for avoiding it in equity (x) ; nor will the expressed 
 motive (y) or the expressed object (z) of the legacy matter 
 in the general case, — although, occasionally it will (a) . 
 Also, where a testator gave a pecuniary legacy, and 
 directed that a specified sum (which he stated he had 
 already advanced to the legatee) was to be deducted from 
 the amount of the legacy, the legatee was held to be bound 
 by the amount of the advance as stated, — and was not at 
 liberty to adduce evidence to show, that the amount of the 
 actual advance was in fact less (6): But if the words of 
 the will are at all ambiguous, as to the specified ad- 
 vance (c), — or can be explained otherwise in any reason- 
 able way (d), — that very harsh mode of interpreting the 
 bequest may, occasionally, be got rid of. 
 
 Relief,— 
 when, and to 
 what extent, 
 
 The remedial powers of the Court do not extend to sup- 
 plying any circumstance, the want of which makes the 
 
 (i!) WagstaffY. Jalland, 19fi8, 1 Oh. 162. 
 
 (m) Campbelly. IPrench, 3 Ves. 321. 
 
 [x) Boddington v. Clairat, 25 Ch. Div. 685. 
 
 {y) Mills V. Johnston, 1894, 3 Ch. 204. 
 
 (z) Knox T. Ld. Solham, 15 Sim. 82. 
 
 [a) Yates v. VniversHy College, L. R. 7 H. L. on p. 443. 
 
 (S) hi re Aird's Estate, 12 Ch. Div. 291. 
 
 \c) Ziegler Y. Nicol, 1906, 2 Ch. 301. 
 
 \d) Kelsey v. Kelsey, 1905, 2 Ch. 465. 
 
MISTAKE. 
 
 405 
 
 instrument void by statute: But the Court will en- excluded by 
 deavour to give relief, even although the relief may statute.'' 
 {prima facie) appear to be against the statute, — For ex- 
 ample, the Court will rectify (on the ground of mistake) 
 a deed of re-settlement, although the deed has been en- 
 rolled as a disentailing assurance (e), — Sell., Because the 
 3 & 4 Will. IV. c. 74, when it excludes (by s. 47) the 
 jurisdiction of equity, excludes it only so far as regards 
 the destruction of the entail, and no further. On the 
 other hand, an agreement to levy a fine or to suffer a 
 common recovery, was not (and a contract to execute a 
 disentailing deed is not) enforceable in equity (even in 
 favour of a purchaser for value), — but may only be en- 
 forced as against the contracting party himself (/), or 
 his bankruptcy trustee (g) . 
 
 And here these two further points may conveniently 
 be mentioned, namely, (1) That in the case of a remedial 
 statute, although the words of the statute should be ever 
 so large, the Court will limit the relief to what is reason- 
 able (^); and (2) that you need not always come into 
 equity, for the relief provided by a statute, — because some- 
 times the statute itself supplies some specific remedy of 
 a preferable character (i) . 
 
 (e) Sail-Dare Y. Sail-Dare, 31 Oh. Div. 251. 
 (/) £anks v. Small, 36 Ch. Div. 716. 
 iff) Pye V. Daubuz, 3 Bro. 0. C. 595. 
 (A) Jones v. Barnett, 1899, 1 Ch. 611. 
 (i) Evans v. Chapman, 1902, W. N. 78. 
 
406 
 
 CHAPTER III. 
 
 ACTUAL FEAUD. 
 
 Jiffi<;"i*y* Equity always had concurrent jurisdiction in fraud, — 
 and exercised also (in certain cases and for certain pur- 
 poses) an exclusive jurisdiction: That is to say, a 
 matter might not have been a fraud at all (Scil., in the 
 view of a Court of law, and for the purposes of legal 
 relief (a)), and yet might have been a fraud in equity 
 (Scil., for the purposes of equitable relief (&)). 
 
 Actual fraud Fraud is either (1) Actual fraud or (2) Constructive 
 fraud, — and actual fraud may consist either (a) In mis- 
 representation or (b) In concealment. 
 
 (^) Misrepre- (A) MisEEPRESENTATioN (otherwis© Called Suggestio 
 Falsi), is, where a party intentionally misrepresents a 
 material fact, — and so produces a false impression; and 
 if the party to whom the misrepresentation is made (e), 
 — or any third person who (it was intended) should act 
 upon the misrepresentation (d), — acts upon it to his 
 Idamage, the other party shall be liable for that 
 damage (c) . And the misrepresentation will amount to 
 a fraud, not only where it is known to be false by thoee 
 who make it, but also (at least, for some purposes) where 
 it is made by persons who do not know it to be either true 
 or false, and yet make it, — or who believe it to be true, 
 when (in the due discharge of their duty) they ought to 
 have known, and to have remembered, the fact which 
 negatives its truth (e). 
 
 (a) Hoare v. Bremridge, L. E. 8 Ch. App. 22. 
 {b) Redgrave v. Surd, 20 Ch. D. 1, on pp. 12, 13. 
 (c) Angus v. Clifford, 1891, 2 Ch. 449. 
 ■ '■ Andrews v. Mockford, 1896, I Q. B. 372. 
 'e) Barry v. Crosakey, 2 J. & H. 1. 
 
ACTUAL FRAUD. 407> 
 
 The misrepresentation must be of a material fact, — Fact must be 
 Fraus dans locum contradui, — That is to say, it must be ™atenai; 
 the misrepresentation of some fact which gives occasion 
 to the contract; and a mere intention will sometimes 
 amount to a material fact within the meaning of this 
 rule(/). Also, the misrepresentation must, usually, be 
 of something in regard to which the one party places con- 
 fidence in the other, — as where the vendor has done some- 
 thing which leads the purchaser to abstain from pro- 
 perly inquiring for himself (g) . But mere puffing will 
 not, usually, amount to a fraud, — Simplex commendatio 
 non obligat ; and in a matter of mere opinion, each party 
 must be taken to have relied on his own judgment {h). 
 Also, if the party to whom the misrepresentation is made *"'^ muBt have 
 is not misled by it, — or knows it to be false, — or assumes 
 to inquire (and also inquires for himself (i)), — there is no 
 fraud. 
 
 If the misrepresentation is merely ^'ambiguous" the 
 party complaining of it as a fraud must show the sense in 
 which he understood it {h) ; but, under the Companies 
 Act, 1908 (I), s. 215, re-enacting or continuing the like 
 provisions of the Directors' Liability Act, 1890 (m), and 
 the Companies Acts, 1900 and 1907 (w), as regards any 
 apparent misrepresentation (in prospectuses and the like), 
 the prima facie presumption is against the directors, and 
 the onus is therefore on them to justify the statements 
 contained therein. 
 
 Generally, in respect of misrepresentations made by the Misrepresen- 
 directors of companies, — The company is responsible for ^°t^rs* 
 the damage to the extent of the profits it has made 
 thereby ; and otherwise the remedy is against the direc- 
 tors personally (o) . Also, tlie directors are jointly and 
 
 (/) JEdgington v. Fitzmaurice, 29 Ch. Div. 459. 
 
 [g) Denny v. Ifaneoek, L. E,. 6 Ch. App. 1. 
 
 (A) SmU\ V. Land and Souse, 28 Ch. Div, 7. 
 
 (i) Attwood V. Small, 6 CI. & P. 232. 
 
 {k) Smith V. Ohadwick, 9 App. Ca. 187. 
 
 (l) 8 Edw. VII. c. 69. 
 
 (m) 53 & 54 Viot. o. 64, 8. 3. 
 
 («) 63 & 64 Viot. c. 48, 8. 10 ; 7 Edw. VII. o. 50, s. 1. 
 
 (o) Barwifik v. English Joint Stock Bank, L. K. 2 Exch. 259. 
 
408 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 severally liable; and the action may, therefore, be brought 
 against one or more of them alone, without the other or 
 others (p) : But where and so far as the action is for a 
 tort, no action lies against the executor of a deceased 
 fraudulent director, — unless to the extent (if any) that 
 his estate has profited by the fraud (g) : However, where 
 the proceedings against the directors were under the 
 Directors' Liability Act, 1890, the liability was for com- 
 pensation (r), — with a right (in the directors) to contri- 
 bution inter se (s), — and so, now, under the Companies 
 Act, 1908, s. 84. But apart from the specific provisions 
 of the Companies Acts (1862 — 1907), a director was not 
 liable (Sdl., in an action of "deceit"), unless he had 
 been guilty of " fraud" (t): That is to say, "negligence" 
 alone (how much soever culpable) did not suffice {u) . 
 
 Remedy, Where a contract has been induced by a material mis- 
 
 ^^^'^semtation ^representation, the fraudulent oontractor is compellable 
 
 can be made to make it good, if it Can be made good; and otherwise 
 
 69°^'":?''"^ the other contracting party may avoid the contract {x) : 
 
 cannot. Also, no One can keep a profit obtained by the fraud of 
 
 Innocent liene- another, unless he himself is free from the fraud and has 
 
 fioian^Sj— may gjyg^ valuable consideration, — That is to say, the fraud 
 
 benefits mider vitiates the deed in toto, — so that the beneficiaries en- 
 
 «ie fraudulent (;i(;]^ed under it lose, — in general (y), but not invari- 
 
 ably (2), — their beneficial interests, even where they 
 
 are themselves wholly innocent of the fraud: In other 
 
 words, B., although innocent of the fraud of A., cannot 
 
 (in general) retain any benefit under a deed which has 
 
 been procured by the fraud of A. (a), — 8cil., unless B. 
 
 is a purchaser for value: Also, the doctrine of " the, estate 
 
 feeding the estoppel," is inapplicable to a case, where 
 
 the estate is procured through a fraud (5). 
 
 (p) Parker v. Lewis, L. E.. 8 Ch. App. 1035. 
 
 (q) Peek Y. Gurneij, L. R. 6 H. L 377. 
 
 [r) Thomson v. Lord Clanmorris, 1900, 1 Ch. 718. 
 
 (s) Gerson v. Simpson, 1903, 2 K. B. 197. 
 
 [t) Angus v. Clfford, 1891, 2 Ch. 449. 
 
 (u\ Berry v. Peek, 14 App. Ca. 337. 
 
 {x) Newhigging Y. Adam, 13 App. Ca. 308. 
 
 \y) Bennet v. Wade, 1 Dick. 84. 
 
 (z) Barrow v. Barrow, 1 Dlok. 604. 
 
 (a) Htiguenin v. Baseley, 14 Ves. 273. 
 
 (4) Heath v. Orealock, L. B. 10 Ch. App. 22. 
 
ACTUAL FRAUD. 
 
 409 
 
 If a party who has been defrauded, after having full Fraud,— 
 knowledge of the fraud, continues to deal with the party affirmance of. 
 who has defrauded him, he will be taken to have released 
 the fraud (c), — Scil., unless where the fraud happens to be 
 a continuing fraud (d) : And if (having the means of 
 knowledge) he compromises the matter, there again he is 
 taken to have released the fraud (e), — Because, generally, 
 in the case of every civil fraud, you may (at your option) 
 either affirm the fraud (/), or disaffirm it (g), — and if you 
 choose to affirm the fraud, the fraud is " purged" {h). 
 And here it is to be noticed, that if a company (or, in Damages 
 fact, anyone) purchases property through an agent to rescission,.-^ 
 make the purchase, — and the agent buys at one price for following on 
 himself, and then sells at a higher price to his principal dece^^^ 
 (whether company or individual), — The principal (affirm- 
 ing the purchase) may not only keep the property pur- 
 chased, but also recover from the agent the difference 
 between the two prices (i) : Secus, if the agent was not, in 
 fact, the agent (k) : And it is to be further remembered 
 here, that the action of "demit" for damages leaves the 
 fraud unaffirmed, — So that the plaintiff may (after re- 
 covering damages for the " deceit ") commence a further 
 action for "rescission"; and in such further action, he 
 recovers back his deposit (or other money paid), and gets 
 also an indemnity and his costs (Z). 
 
 (2) Concealment (otherwise called Suppressio Veri), (-S) Cmceai- 
 is the suppression or withholding of some material fact, "^ ' 
 bedng some fact which the oris party was under a legal 
 duty to the other to disclose (m), — So that, where there 
 is no such duty, the mere concealment is not a fraud (w): 
 And, as between vendors and purchasers, whether of real 
 estate or of personal estate, the purchaser is (in general) 
 
 (c) Mitchell v. Bomfray, 8 Q. B. D. 587. 
 
 [d] Moxon V. Payne, L. E. 8 Oh. App. 881. 
 («) Law V. Laiv, 1905, 1 Oh. 140. 
 
 (/) Hemmings v. Sceptre Life Lnmranee, 1905, 1 Oh. 365. 
 
 \g) In re Eastgate, 1905, 1 K. B. 465. 
 
 \h) Urmes v. SeaSel, 2 De G. F. & J. 333. 
 
 (i) BagnallY. Carlton, 6 Ch. D. 371. 
 
 {k) BurlandY. Earle, 1902, A. C. 83. 
 
 (r^.Rawlim y. Wichham, 3 De G-. & J. 304. 
 
 \m) Turner v. Green, 1895. 2 Ch. 206. 
 
 (ff) Keates v. Cadogan, 10 0. B. 591. 
 
410 
 
 THE ORIGINALLY CONCURKENT JURISDICTION. 
 
 Duty of pur- 
 chaser, on a 
 Bale by the 
 Court, upon 
 his under- 
 taking to give 
 the Court 
 infonuatiou. 
 
 "Hustling," 
 —effect of. 
 
 As to intrinsic 
 defect in per- 
 sonal chattels, 
 caveat emptor. 
 
 Silence some- 
 times tanta- 
 mount to 
 direct affirma- 
 tion. 
 
 under no legal duty to the vendor (o) : But the vendor 
 is under a legal duty to him, — and, therefore, if he should 
 sell an estate, knowing that there were incumbrances (p) 
 or party-wall or easements (q) on it of which the purchaser 
 was ignorant, the suppression would avoid the sale (p) . 
 And the purchaser also, — but under exceptional circum- 
 stances only, — may come under the duty of making full 
 disclosure, — For example, where a property is being sold 
 under the direction of the Court, and the purchaser lays 
 information before the Court on any particular point (in 
 order to procure the sanction of the Court to the sale), 
 he must lay before the Court all the information he pos- 
 sesses (that is material on that particular point), in order 
 to enable the Court to form a correct opinion (r). Also, 
 if the purchaser should " hustle " a vendor (or a lessor), 
 into a Siale (or into a lease) of the property, that will 
 avoid the sale (or lease (s)). Usually, however, in a sale 
 of personal chattels, the maxim caveat emptor is applic- 
 able, — So that neither the purchaser nor the vendor will 
 be under any duty of disclosure to the other, — or liable 
 for concealment {Nam qui tacet, non videtur affirmare), 
 — Upon the supposition always (as regards the vendor), 
 that he has not made any representation- which averts 
 inquiry (t), — ^or been guilty of (what has sometimes been 
 called) "aggressive eonoealment" or "industrious con- 
 cealment" (u). 
 
 Occasionally, also, the silence of the party is deemed 
 equivalent to his direct affirmation, — For example, in the 
 case of an insurance, the insured is bound to communicate 
 to the insurer all the facts and circumstances (material to 
 the risk) that are within his knowledge; and if these aire 
 withheld (whether the concealment be by design or by 
 accident), it is equally a fraud, and fatal to the con- 
 tract (a;) : And as regards life assurances in particular, 
 matters of opinion even, — as to (e.g.) whether the intend- 
 
 (o) Fox V. Maekreth, 2 Bro. C C. 420. 
 
 [p) Edwards v. M'Leay, 2 Swanst. 287. 
 
 \q) Carlish v. Salt, 1906, 1 Ch. 335. 
 
 (r) Boswell-v. Coalcs, 11 App. Ca. 232. 
 
 (s) Walters v. Morgan, 3 De G. F. & J. 718. 
 
 [t) Porter v. Uoore, 1904, 2 Ch. 367. 
 
 (k) Edwards- Moss v. Marjoribanks, 7 H. L. Ca. 806. 
 
 \x) London Assurance Co. v. Mansel, 11 Ch. Div. 363. 
 
ACTUAL FRAUD . 411 
 
 ing assured is of temperate habits, — are really matters of 
 fact («/), — and are material (z) ; and if you have given 
 your opinion in favour of the assured, and afterwards (aJid 
 before the assurance is effected) you find that you were 
 wrong in your opinion, you must (semble) say so (a). 
 
 Upon a sale of real estate, any mere inadequacy in the Inadequaojof 
 price or consideration is not per se a fraud in equity,— !2^henitwSi 
 Scil., because every one is entitled to dispose of his pro- and when it 
 perty at whatever price (and upon whatever terms) he TcoiSract!™^ 
 chooses (&), — and the value of a thing is what it will 
 produce, and one man may sell for less and another for 
 more, and the sole inducement to the purchaser may have 
 been the lowness of the price (c) ; and even when the sale 
 is by the tenant for life under the Settled Land Act, 
 1882, and the sale is at an under-value, the purchaser will 
 (in the general case) be protected (d) . 
 
 There may, however, be such inadequacy in the price, 
 as to demonstrate per se some gross imposition: And even 
 where the inadequacy is not of that shocking character, 
 if there are other circumstances of a suspicious nature, 
 the inadequacy is a strong element (and evidence) of 
 fraud (e), — unless and until the circumstances are ex- 
 plained away, consistently with honesty and fairness : But 
 an apparent gross inadequacy may not be a real inade- 
 quacy, when everything is known (/), — as where (e.g.) 
 the apparent inadequacy has resulted from a sudden 
 increase of value in the land arising from adventitious 
 circumstances (g) . 
 
 A fraudulent contract being, in general, valid until Fraudulent 
 repudiated, the repudiation may become impossible, — as whereresds- 
 
 siou impos- 
 sible, effect. 
 
 (y) Thomson v. Weems, 9 App. Oa. 671. 
 
 (s) JoeVs ease, 1908, 2 K. B. 863. 
 
 («) Dmies t. London Insurance, 8 Ch. D. 469. 
 
 (4) In re Wragg, 1897, 1 Ch. 796. 
 
 («) Griffith V. Spratley, 1 Cox, 383. 
 
 [d) ffurrellv. LittUjohn, 1904, 1 Ch. 689. 
 
 (e) Rees v. De Bernardy, 1896, 2 Ch. 437. 
 (/) Harrison ^r. Guest, 6 De G. M. & G. 424. 
 {g) Edwards v. Meyrick, 2 Ha. 60. 
 
412 
 
 THE OKIGINALLt CONCURRENT JURISDICTION. 
 
 Circumstances 
 under wliich 
 rescission 
 impossible. 
 
 where {e.g.) the parties cannot be restored to their .original 
 status quo (h), — or where the rights of third parties have 
 intervened: And, for example, a fraudulent contract to 
 take shares in a company cannot (as against the creditors 
 of the company) be rescinded, after the commencement of 
 the winding up (^), — 8cil., after the presentation of the 
 petition on which the winding up order is made (k) : But 
 a de facto removal of the shareholder's name from the 
 register, or even the commencement of an action for its 
 removal, — if only it be in time, — is a sufficient repudia- 
 tion of the contract; and any mere delay in asserting the 
 right to relief, if it is excusable and excused, — or if it 
 has done no harm in the meantime, — will not be con- 
 sidered an abandonment of the right of the shareholder to 
 have his name removed. 
 
 No rescission 
 against in- 
 nocent third 
 parties. 
 
 Contracts for shares, although fraudulent, may not be 
 voidable even : For example, if A. (by fraud) induces B. 
 to buy A.'s shares, and the company is not implicated in 
 A.'s fraud, the contract will hold good as between B. and 
 the company, — B.'s remedy (in such a case) being against 
 A. only, for a re-transfer of the shares and for an in- 
 demnity : But if the company is at all implicated (directly 
 or indirectly) in the fraud of A., the contract will be 
 voidable even as against the company (l). Also, the con- 
 tract, even after it has been completely executed, may 
 be rescinded, but only on the ground of fraud (m), — the 
 fraud being (in this case) personal fraud (n) . 
 
 Fraudulent 
 contract, — 
 usually valid, 
 until aroided. 
 
 When it is said that a contract voidable for fraud is 
 "valid until repudiated," that is a very diSerent thing 
 from saying that the contract is "void until con- 
 firmed" (o), — which is why some proceeding is neces- 
 sary (before the winding-up) to avoid the contract for 
 
 (A) Lagunas Nitrate v. Lagunas Syndicate, 1899, 2 Oh. 392. 
 
 (i) Spackman v. Evans, L. R. 3 H. L. 171. 
 
 \k) Whiteley's case, 1899, 1 Ch. 770. 
 
 (1) Lynde'a case, 1896, 1 Ch. 178. 
 
 (ot) May V. Piatt, 1900, 1 Ch. 616. 
 
 («) Seddon v. Salt Co., 1905, 1 Ch. 326. 
 
 (o) Oaket v. Turquand, L. K. 2 H. L. 325. 
 
ACTUAL FRAUD. 
 
 413 
 
 shares (■p), — and, in the meantime (and before the 
 winding-up), you may (on account of the fraud) defend 
 an action for calls on the shares (g), — which if you do, you ^ 
 have done enough by way of repudiation: 
 
 There are certain frauds in relation to companies which, Frauds which 
 
 111 (.1-1 'n are SO Dy force 
 
 whether they are frauds in themselves or not, are specihc of statute; 
 frauds by statute: And, Firstly, under s. 210 of the Com- (i) Fraudulent 
 panics Act, 1908,— formerly s. 164 of the Companies Act, v^^^^^^^"^- 
 1862, any conveyance, mortgage, &c., which (in the case 
 of an individual trader) would be a fraudulent preference 
 on his bankruptcy, is a fraudulent preference on the 
 winding up of the company, — and may be set aside accord- 
 ingly (r). Secondly, under the 38th section of the Com- (2) Non-dis- 
 panies Act, 1867, the non-disclosure of contracts between gg^^^ctsi* 
 the promoters of a projected company and the persons con- 
 tracting with them, if the contracts were of a kind to 
 influence (s) (and did in fact influence (t)) the prospective 
 shareholders, rendered the prospectus fraudulent (u) ; as 
 did also any purported disclosure of such contracts, which 
 was a mere mockery and insufficient (u) . Moreover, a 
 prospectus which was otherwise fraudulent was not good, 
 merely because it disclosed all such contracts (x) : And a (3) Waiver 
 waiver clause in the prospectus was not, of necessity, "louses, 
 binding («/), although it might have been so; but under 
 the Companies Act, 1900 (0), by s. 10, sub-s. 6, such 
 a waiver clause was rendered absolutely void in all cases. 
 And now, under the Companies Act, 1908, by s. 81, 
 sub-s. 4, as regards prospectuses and the contents thereof, 
 — and by s. 85, sub-s. 5, as regards the allotment of shares 
 and the conditions preliminary thereto, — any waiver clause 
 is simply void; and by s. 81, all material contracts are 
 to be specified in the prospectus, — excepting contracts 
 
 (p) Reese Miver v. Smithy L. R. 4 H. L. 64, 
 
 (q) Venezuela S. C. v. Kiseh, L. E. 2 H. L. 99. 
 
 [r) Willmott v. London Celluloid Co., 34 Ch. Div. 147. 
 
 (s) Broome t. Speak, 1904, A. C. 342. 
 
 (/) Nash V. Calthorpe, 1905, 2 Ch. 237. 
 
 (u) Andrews V. Mockford, 1896, 1 Q. B. 372. 
 
 (v) Gluckstein v. Barnes, 1900, A. C. 240. 
 
 {x) Aaro-n's Reefs v. Ta:iss, 1896, A. C. 273. 
 
 {y) Cackett v. Keswick, 1902, 2 Ch. 456. 
 
 (a) 63 & 64 Vict. c. 48. 
 
414 
 
 THE ORIGINALLY CONCUEEENT JURISDICTION. 
 
 entered into more than two years before, or entered into in 
 the ordinary conduct of the business of the company; and 
 by s. 88, where any shares are allotted as fully or partly 
 paid up, and the consideration is not cash (pure and 
 simple), the contract (or some memorandum of it) is to be 
 filed with the Eegistrar of Companies, — under a penalty 
 of (not exceeding) £50 a day for every day the filing is 
 not made. 
 
 (4) Capital, 
 misapplica- 
 tion of. 
 
 (5) One-man 
 
 company 
 
 frauds. 
 
 Thirdly, making payments out of capital, which ought 
 to be paid (if paid at all) out of profits only, is a fraud in 
 the nature of a misfeasance by the directors and other 
 officials of the company, for which they are answerable to 
 the shareholders (a) — unless the payment is justified under 
 s. 91 of the Act of 1908 (or formerly, under s. 9 of the Act 
 of 1907): Also, although you may lawfully apply a 
 portion of the capital in the payment of interest on pre- 
 paid shares (b), yet you cannot (in the case of companies 
 registered under the Companies Acts) issue shares at a 
 discount (even as between the shareholders themselves (o)), 
 — and you cannot, in fact, either decrease or increase the 
 liability on the shares (d) : But you may issue the shares 
 at a premium, — and you may issue bonds or debentures 
 either at a discount or at par or at a premium, — ^provided, 
 of course, you are doing so bond fide{e). And a com- 
 pany may not buy its own shares (/), — although it may 
 now re-issue its redeemed debenture stock (g) . And, nota 
 bene, a company, which was otherwise duly constituted 
 under the Companies Acts, was not a fraudulent company 
 merely because it was (in effect) a one-man company {h): 
 but, in such a case, the assignment to the company might 
 occasionally have been set aside as a fraud on the creditors 
 of the man who created the company {i) ; and the Court 
 
 (a) Barrow Hematite case, 1902, 1 Ch. 353. 
 
 {b) Lock V. Queensland Investm.ent Co., 1896, A. C. 461. 
 
 (e) Welton v. Sa,fery, 1897,, A. C. 299. 
 
 [d) Bisgoody. Senderson's Transvaal, 1908, 1 Ch. 743. 
 
 \e) Moselsy v. Kofft/fontein Mines, 1904, 2 Ch. 108. 
 
 (/) Trevor Y. Whitworth, 12 App. Ca. 409. 
 
 [g) Companies Act, 1908, s. 104 (formerly Act, 1907, o. 25). 
 
 (A) Salomon v. Salomon ^ Co., 1897, A. C. 22. 
 
 (i) InreEirth, 1899, 1 Q. B. 612. 
 
ACTUAL FRAUD. 
 
 415 
 
 was latterly greatly disposed to find some way of invali- 
 dating certain debenture issues, which operated to the 
 grave prejudice of the unsecured creditors (k) . 
 
 As regards frauds upon the shareholders of a company (6) Minority 
 
 generally, — The rule is, that the internal management (or ^aiori^of '^ 
 
 mismanagement) of the company must, as a general rule, shareholders, 
 
 be left to the directors, — and the Court is not in the habit r^°^ ?® "?' 
 
 „ . f. • • 1 1 /T\ m •! 1 1 ^^i^* advantage 
 
 01 interfering with that (i), — SciL, because the company of the 
 itself (that is to say, the shareholders) may always, in majonty. 
 general meeting, control the management (or correct the 
 mismanagement) of the directors : But still, if a 
 majority of the shareholders are in league with the 
 directors, and are unfairly overruling the minority, — 
 and especially if the majority are (in effect) pocketing 
 aU the divisible profits in exclusion of the minority, or 
 are otherwise denying to the minority the exercise of 
 their just rights, — the Court will interfere at the suit of 
 the minority (to) . 
 
 Besides the frauds hitherto considered, there are cer- (C) Frauds on 
 tain frauds (so-called) which are only frauds by reference ■^'»*«"^«». *"• 
 to the incapacity or imbecility of the defrauded party: 
 Thus,— 
 
 Firstly, The contract of a person non compos mentis Q-) Lunacy, 
 will, usually, be set aside in a Court of Equity, — although, 
 where it is for the benefit of the non compos (or is for 
 necessaries supplied to him (w), or is an ordinary trade 
 contract (o)), it will be good enough, — Because, generally, 
 if a purchase is made in good faith, without any know- 
 ledge of the incapacity (and no advantage has been taken 
 of the non compos {p)), the Court will (wherever it can) 
 uphold the transaction, — to the extent, at all events, of 
 the benefit accrued to the lunatic {q) . 
 
 Secondly, as regards the contracts of a drunkard, — 
 To set aside his contract, it is not sufficient, that the 
 
 (2) Drunken- 
 ness. 
 
 (i) In re Jachaon and Bassford, 1906, 2 Oh. 467„ 
 
 (I) Fans V. Sarbottle, 2 Ha. 461. 
 
 (m) Menier's case, L. K. 9 Ch. App. 350, 
 
 («) Molton V. C'amroux, 4 Exnh. 17. 
 
 (o) Mell V. Morley, 9 Ves. 478. 
 
 {p) Imperial loan Co. v. Stone, 1892, 1 Q. B. 599. 
 
 (g) Molyneux's ease, 1905, A. C. 555. 
 
416 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 (3) General 
 imbecility. 
 
 (,i) Undue 
 influence (on 
 testators). 
 
 (5) Duress, 
 and extreme 
 necessity. 
 
 (6) Infancy. 
 
 (a) Contracts 
 for necessaries. 
 
 (b) Other 
 
 personal 
 
 contracts. 
 
 (aa) Old law; 
 
 party was under excitement or lethargy from liquor (r); 
 but if there was any contrivance to draw him into drink, 
 — and so take advantage of him, the Court would relieve, 
 — That is to say, equity will not, in general, lend its 
 assistance to the purchaser, — nor yet assist the drunken 
 man, — but will leave each to his ordinary legal remedy, 
 — excepting always where some imposition has been 
 practised. 
 
 Thirdly, as regards a person, who (without being non 
 compos) is of such weakness of mind as to be unable to 
 guard himself against imposition, — If the circumstances 
 justify the conclusion, that the party has been imposed 
 on, the transaction will be avoided in equity, — the burden 
 of proof being on the other party to show, that no unfair 
 advantage was taken of the weakness (s) : And the like 
 rules are applicable as regards wills obtained by the exer- 
 cise of undue influence upon testators; but it must (in 
 such cases) be shown, that the volition of the testator was 
 repressed, — So as that what he did, he did not desire to 
 do; and the mere fact, that (in making his will) he was 
 influenced by {e.g.) immoral (^) or irreligious (m) con- 
 siderations, does not, of itself, amount to undue influence. 
 
 Fourthly, where a person of competent understanding 
 is under duress when he makes the contract, — or is in 
 extreme terror {x) or mental anguish (y) at the time, — 
 equity will protect him. 
 
 As regards the Contracts of Infants, — These demand 
 a more particular treatment; And, firstly, infants are 
 permitted by the law to bind thems^elves by their con- 
 tracts for necessaries (z), — and by their contracts of hir- 
 ing and service, and generally by acts which the law 
 requires them to do, — excepting that they are not bound 
 by any contracts which are manifestly to their disad- 
 vantage. There used also, formerly, to be this great dis- 
 tinction between the contracts of infants and the contracts 
 of lunatics, namely, — The contract of a lunatic was (and 
 
 if) Villers v. Beaumont, 1 Vem. 100. 
 
 (») Longmate t. Ledger, 2 GiflE. 164. 
 
 (t) Wtngrove V. Wingrove, 11 Pro. Div. 81. 
 
 (m) Morley v. Zoughiian, 1893, 1 Ch. 736. 
 
 {x) Sawes v. TVyatt, 3 Bro. C. C. 158. 
 
 (V) Williams v. Bayley, L. R. 10 H. L. 200. 
 
 i%) Barnes v. Toye, 13 Q. B. D. 410. 
 
ACTUAL FEAUD. ' 417 
 
 is) ab initio void, and can never be validated in any mode, 
 — Scil., if the other contracting party has known of the 
 lunacy at the date of making the contract; but the con- 
 tracts of an infant, unless where they were manifestly 
 to his disadvantage, were merely voidable, — So that it 
 used to be in the power of the infant to confirm them, 
 when he arrived at full age, and within a reasonable time 
 thereafter (a) . But, now, under the Infants' Eelief Act, (bb) New law. 
 1874 (6), all the personal contracts (and not merely the 
 money-lending and money-raising contracts) of the 
 infant are made utterly void (c), — and are therefore no 
 longer confirmable ; and the infant cannot b© made a judg- 
 ment debtor in respect thereof (<Z). But, of course, an in- 
 fant's contract for necessaries remains binding on him; and 
 his marriage articles are (for this purpose) a contract for (c) Marriage 
 necessaries (e), — or, at all events, such a contract is only " ^^' 
 voidable, and may be confirmed by the infant on (and 
 within a reasonable time after) attaining his age of 
 twenty-one years (/), — assuming always, that (after 
 attaining twenty-one) the infant has the legal capacity 
 to affirm, and not otherwise (g) . 
 
 Money actually paid by an infant, under (e.g.) an (d) Money- 
 agreement for renting a tenement and for the purchase ^ 
 of the furniture therein, cannot be recovered back, ivhere 
 there has been part enjoyment by the infant (h), — Because 
 it would be a fraud in him to seek to recover back the 
 money, and because the protection which the law gives to 
 an infant, is limited to his protection, — and does not 
 justify him in the perpetration of a fraud upon others: 
 Therefore, also, his voluntary gift even (being otherwise 
 good) will hold good against him {i): Also, an infamt will (e) Conditiona 
 be bound by the condition annexed to a devise to him, aim^xedto^ 
 where he accepts the devise ; and the law is ths same as devises, be- 
 regards a bequest to him, which is saddled with a condi- oftergats. 
 
 {a) Partridge Y. Partridge, 1894, 1 Ch. 351. 
 (4) 37 & 38 Vict. e. 62. 
 (c) Smith V. King, 1892, 2 Q. B. 543. 
 {d) JEx parte Beauchamp, 1894, 1 Q. B. 1. 
 [e) Duncan v. Dixon, 44 Ch. Div. 211. 
 (/) Edwards Y. Carter, 1893, A. C. 360. 
 (g) Viditz v. O'Sagan, 1900, 2 Ch. 87. 
 (A) Zempriere v. Lange, 12 Ch. D. 675. 
 (i) Taylor v. Johnstone, 19 Ch. D. 603. 
 
 S. E E 
 
418 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 tion, or with any intrinsic liability (k) : Also, an infant 
 might have subscribed for shares in a limited company (I), 
 ■ — and inig'ht have accepted ai transfer of such shares (m), — 
 subject always to his right to repudiate the shares within 
 a reasonable time after his attaining age: But, since the 
 Infants Relief Act, 1874, that cannot now be; and, even 
 under the old law, the transfer to an infant did not relieve 
 the transferor from the liability (if any) which remained 
 on the shares (n) . 
 
 (7) Coverture. (7) As regards Married Women, — Generally speaking, 
 a married woman had no capacity (either at law or in 
 equity) to enter into any contracts (o), — Scil., on her own 
 account as a principal, — for her contracts, even when for 
 necessaries, bound not herself (but her husband (p)). But, 
 as regards her separate property (not being, at the time of 
 the contract, subject to the restraint on anticipation), a 
 married woman was (and is) capable (in equity) of enter- 
 ing into contracts; and under the Married Women's Pro- 
 perty Acts, 1882 and 1893, she is mad© fully capable of 
 entering into contracts of every kind, — equally as a man 
 may do, and with (in effect) the same consequences, — 
 Saving and excepting always as regards her separate estate 
 which is restrained from anticipation (g) . 
 
 (A) Scott V. Rangier, 2 Vem. 560. 
 
 \T) Re Laxon # Go., 1892, 3 Ch. 55.5. 
 
 (m) Capper's case, L. E.. 3 Ch. App. 45S. 
 
 [n) Mckalls t. Merry, L. R. 7 H. L. 530. 
 
 (o) Emery v. Wase, 8 Ves. 505. 
 
 (jo) Jenner v. Morris, 3 De G. F. & J. 45. 
 
 (j) Brown v. Bimbleby, 1904, 1 K. B. 28. 
 
419 
 
 CHAPTER IV. 
 
 CONSTRUCTIVE FRAUD. 
 
 Constructive ^Fraud is (or arises) where, although there Constructive 
 may be no fraud in fact, yet the transaction is deemed vMietieTof. 
 fraudulent, — Either 
 
 (1) Because it is contrary to the Policy of the Law; or 
 
 (2) Because it is an Abuse of some Fiduciary Rela- 
 
 tion; or 
 
 (3) Because it operates as a Fraud upon the Private 
 
 Rights and Interests of Third Persons. 
 
 I. Constructive Frauds, Because Contrary to the Policy, i. Constmc- 
 
 of the Law. — Marriage - Brokage Contracts (a), — also ^™o*^My 
 
 Place - Brok;a.g6 Contracts (&), — are examples of these; to policy of 
 
 and all such contracts axe utterly void and incapable of * ^' . 
 
 confirmation; and a marriage-by-advertisement-contract trokage'con-' 
 
 is in the same category as a marriage-brokage con- tracts, &c. 
 tract (c) ; and the money paid pursuant to any of these 
 contracts may be recovered back (d) . 
 
 Also, any contract by which a parent or guardian (2) Reward 
 obtains any remuneration, — for promoting or consenting to parent or 
 to the marriage of his child or ward, — is void (e): And consent to 
 where A., on the marriage of his sister, let her ha vie money ™^ageof 
 privately (in order that her portion might appear as large m^ secret 
 as was insisted on by the intended husband), and she agreements 
 gave a bond to her brother for the repayment of the marriage?^ 
 money, — The bond was deci-eed to be delivered up (/) . 
 
 (a) Hall V. Potter, Show. P. C. 76. 
 ^b) Law V. Law, 3 P. Wme. 391. 
 
 (c) Hermann v. Charlesworth, 1905, 2 K. B. 123. 
 
 (d) Smith V. Srmvning, 2 Vern. 392. 
 {«) Clarice v. Parker, 19 Ves. 1. 
 
 (/) Gale T. Lindo, 1 Vern. 475. 
 
 E E 2 
 
420 THE OEIGINALLY CONCURRENT JURISDICTION. 
 
 <4) Rewards And, generally, wherever a bond is given to induce 
 Sfluenohig another person to do any act in favour of the obligor, the 
 another person bond is void, — as tending to fetter the exercise of free 
 
 _(5) Contracts Contracts and conditions in general restraint of Tuar- 
 
 TestrainTof HaQe are void ; and if the contract or condition, although 
 
 marriage,— ^^^ ^^ restraint of marriage generally, is still of so rigid 
 
 a nature, that the party upon whom it is to operate is 
 
 unreasonably restrained by it, it will fall under the like 
 
 (6) Contracts consideration (h) . Also, contracts in general restraint of 
 resteSSTof '^'"^^ *'^® void,— as tending to discourage industry and 
 trade,— void; just competition; but if the restraint be limited, fts 
 r^trai^te'^'^^^ regards place or as regards time, it will be good; and a 
 
 person may lawfully sell a secret in his trade or business, 
 and restrain himself absolutely from using the secret (^) . 
 The Court will also, where it can, sever what is reasonable 
 from what is unreasonable in the restraint Qi), — especially 
 where the restraint occurs in a contract of service {V) : 
 And, apparently, a contract in restraint of trade may be 
 valid, although it should be unlimited, either in point of 
 space (m) pr of time{n), — assuming always, that (under 
 all the circumstances, and having regard in particular to 
 the contract itself) the restraint is (in the opinion of the 
 judge (o)) a reasonable one. 
 
 (7) Agree- Agreements in violation of the rules which are in 
 on violation furtherance of the administration of justice, — contracts 
 °*^d'*° (e.gr.) for the buying and selling (or procuring) judicial 
 
 offices (p), or for the suppression of criminal prosecu- 
 tions {q), — are void; as are also contracts which encouraige 
 champerty, or which are founded upon corrupt and illegal 
 considerations generally (r).. 
 
 {g) Behenham v. Ox, \ Ves. 276. 
 
 (A) KeUy v. Monelc, 3 Ridg. P. C. 205. 
 
 (i) Harms v. Farsoti, 32 Beav. 328. 
 
 \k) Baker v. Bedgecocle, 39 Ch. Div. 520. 
 
 (I) Underwood V. Barker, 1899, 1 Ch. 300. 
 
 {m) Nordenfelt -v .- Maxim Co., Limited, 1894, A. C. 535. 
 
 \n) Baynes v. Doman, 1899, 2 Ch. 13. 
 
 (o) Dowden-Fook v. Fook, 1904, 1 K. B. 45. 
 
 {p) Chesterfields. Janssen, 1 Atk. 352. 
 
 {q) Johnson v. Ogilby, 3 P. "Wms. 277. 
 
 [r) Lound v. Grimwade, 39 Ch. Div. 605. 
 
CONSTEtrCTIVE FEAXJD. 
 
 4§ri 
 
 By the Companies Acts, shares in joint-stock companies (8) Frauds in 
 have always been freely transferable (the mode of transfer [rtnate If *** 
 being that prescribed by the regulations of the com- shares in 
 pany): but a transfer which is subiect to a reservation j°i^''/*?? 
 
 ■ _p p ^ o 11 •!! 1- companies. 
 
 m lavour oi the transferor, — and made with the object 
 merely of getting rid of the liability for calls, — is fraudu- 
 lent and void(s): SeGus, if the transfer is absolute (^). 
 Also, when the directors have the right of rejecting 
 transferees, any concealment or misrepresentation 
 (materially affecting the worth of the transferee) would 
 render the transfer invalid, — even although accepted (u): 
 Secus, if the directors have no power of rejection.. In 
 general, also, as between trustees and cestuis que trustent, 
 the trustee whose name is on the register is liable (and 
 not the cestui que trust), — the trustee {where the invest- 
 ment is proper) having, in such a case, a right of in- 
 demnity (a;) ; but if the shares are placed in the nam© 
 of the trustee only calourahly and far the purpose of 
 evading the legal liability, the cestui que trust will be 
 liable {y) . 
 
 Where both parties are involved in, — and are "alike" Neither party- 
 involved in, — an illegal agreement, equity will not (as agre"meiS''is 
 a rule) grant any relief to either of them, — Because In aided, as a 
 pa:ri delicto, potior est conditio possidentis ; but, where fl^^pt'^ere" 
 the agreement is challenged as being against public agreement is 
 policy, the circumstance that the relief is asked by one p^yig^^oJ^ 
 who is particeps fravdis, is not (in equity) material, — 
 the relief being given to the public through the party (2), 
 and not to the party: Also, if one of the parties is more 
 in fault ,than the other, relief will be given (a) . 
 
 II. Constructive Frauds, Because an Abuse of some 11. Construe- 
 Fiduciary Relation. — Frauds on the relation of parent tive frauds, a». 
 and child are an example of these, — all contracts and con- thefidueiary- 
 veyanoes whereby benefits are secured by children to their relation, 
 parents being the objects of the Court's jealousy, — So 
 
 {s) lie Fass's case, 4 De G. & J. 644. 
 (t) Lindlar's case, 1910, 1 Ch. 207, 312. 
 (m) Ex parte Kintrea, L. E. 5 Ch. App. 95. 
 («) Castellan v. Kobson, L. R. 10 Eq. 47. 
 ly) Eardoon v. Belilios, 1901, A. C. 118. 
 (z) Roberts v. Roberts, 3 P. Wma. 66. 
 (a) Osborne v. Williams, 18 Ves. 379. 
 
r>2 
 
 THE ORIGINALLY CONCUEIIENT JURISDICTION. 
 
 «Mid to^ *'°™ ^^^^' ^^ these contracts are not entered into with scrupu- 
 parent,— void, lous good faith, they will be set aside; and, for example, 
 ^CT^'t" d where a female child, shortly after attaining her majority, 
 faith. made over property to her father without consideration,, 
 
 the father was required to show, that the child (in the 
 matter of the gift or conveyance) was a free agent 
 and had independent advice (fe) : And the like rule 
 was supposed to be applicable also to gifts made by a 
 wife under the pressure of her husband (c) ; but it is 
 now doubtful, if that is so (d) : And in all this class 
 of cases, the relief asked for must be asked for within 
 a reasonable time, any delay being (usually) fatal (e) . 
 And although the rule is, in general, inapplicable to 
 the re-settlements which, on the eldest son's attaining 
 his age of twenty-one years, are made of the family 
 estates (/), — yet, even in the case of these re-settle- 
 ments, it is a fraud, if the father gets a disproportionate 
 advantage by them (g) . And as regards a husband who 
 (in effect) deprives his wife of all her property, — by 
 getting it charged with moneys advanced to a rotten 
 business in which he is interested, — there is no doubt, 
 that the charge is void by reason of the undue influence of 
 the husband on the wife Ch) . 
 
 ■■ii) Guardian 
 and ward, — 
 gift by ward 
 -soon after the 
 termination of 
 guardianship, 
 viewed with 
 suspicion ; 
 "Gift upheld, 
 'when influence 
 iand legal 
 authority 
 -have ceased. 
 
 '(3) Quasi 
 ;guardians. 
 
 Equity will not uphold transactions between guardians 
 and wards, even when entered into after the wardship 
 has ceased, if the intermediate period has been short (^), — 
 Soil., unless the circumstances demonstrate the most abun- 
 dant good faith on the part of the guardian (/c) ; but where 
 the influence of the guardian has ceased, and there has been 
 a settlement of the accounts, equity will not set aside a 
 reasonable gift made by the ward to his or her guardian (l) : 
 And the like principles apply also, — usually, but not in- 
 variably, — to persons standing in the situation of quasi 
 
 (J) Bainiriggey. Browne, 18 Ch. Div. 188. 
 {c) Turnbull v. Duval, 1902, A. C. 429. 
 (d) HowesT. Bishop, 1909, 2 K. B. 390. 
 {e) Turner v. Collins, L. R. 7 Ch. App. 329. 
 (/) Eoblyn V. Soblyn, 41 Ch. D. 200. 
 ((/) Hoghton v. Hoghton, 15 Beav. 278. 
 
 (h) Bank of Montreal v. Stuart, 1911, A. C. 120, citing Nedhj v. Xidbiu 
 5 De a. & S. 377. 
 
 (i) Fierse v. Waring, 1 P. Wma. 121. 
 {!e) Wright v. Vanderplank, 2 K. & J. 1. 
 (?) Satch V. Eatch, 9 Ves. 297. 
 
CONSTRUCTIVE FRAUD., "123 
 
 guardians, — as medical advisers (m), " spooks " (w), minis- 
 ters of religion (whether priests (o) or preachers (p)), 
 managers {q), and the like. But, if the donor (after the 
 eonfidential relation has ceased) elects to "abide hy the 
 gift," that would be a confirmation of the gift, — So that 
 the legal personal representatives of the donor could not . 
 
 thereafter set aside the gift (r) : Nor could any beneficiary 
 do so, who claimed through or under the donor (s) : But it 
 would be otherwise, if the donor (in his lifetime) had 
 commenced proceedings for the purpose (t). 
 
 And, as regards (in particular) the relation of Solicitor (4) Solicitor 
 and Client, — It appears, that a solicitor cannot sustain a a^dohent. 
 GIFT from his client, — for, although a solicitor may Pur- client to'soU- 
 CHASE from his client (subject always to satisfying the cjtor, pending 
 Court of the propriety of the purchase), a far stricter law cannot stand, 
 is applicable to Gifts (u), — such a gift being simply void; 
 and it is not confirmable, nor made good by any lapse of 
 time (x) : However, a gift can validly enough be made 
 by the client to his solicitor by will; and a gift made inter 
 vivos may be confirmed by the will (y) . And the dis- 
 tinction aforesaid between a gift by deed and a gift by 
 will rests upon the circumstance, that the influence of the 
 solicitor is supposed to be continuing wlicre the gift is inter 
 vivos, but not where the gift is on death (z) . Also, gener- 
 ally, a solicitor shall not in any way whatever, — either per- 
 sonally or through his wife (a) or through his son (b), — 
 make any gain to himself at the expense of his client (c), — 
 beyond, of course, the just and fair remuneration for his 
 services: 
 
 {m) Dent v. Bennett, i My. & Cr. 269. 
 (n) Lyon v. Some, L. R. 6 Eq. 6.55. 
 (o) Suguenin v. Baseley, 14 Ves. 273. 
 (p) Norton v. Bell, 2 Eden. 286. 
 (}) Coomberv. Coomber, 1911, 1 Ch. 174, 322. 
 (V) Mitchell V. Homfray, 8 Q. B. D. 537. 
 
 (s) Skottowe V. Williatns, 3 De G-. E. & J. 535 ; and Coomber v. Coomber, 
 supra. 
 
 (i) Phillipson v. Kerry, 32 Beav. 628. 
 
 (u) Tomson v. Judge, 3 Drew. 306. 
 
 \x) Nutt T. Baston, 1899, 1 Ch. 873. 
 
 (V) Sindson v. Weatheriil, a De G-. M. & G. 301. 
 
 (z) Rhodes v. Bate, L. R. 1 Ch. App. 252. , 
 
 (a) Liles v. Terry. 1895, 2 Q. B. 679. 
 
 (S) Barron^. Willis, 1902, A. C. 271. 
 
 (e) Tyrrell t. Bank of London, 10 H. L. Caa. 26. 
 
424 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 Solicitor, his And as regards what shall be the i ust and fair remunera- 
 
 professional j.- r. i- •, '' 
 
 remuneration. tlOn 01 a SOlLCltor, — 
 
 Firstly, if the solicitor is also a trustee, and the business 
 has been transacted in connection with the trust estate,* 
 it has been shown (on pp. 107 and 108, supra), that he is 
 • not entitled to charge in respect of that, — although, if he 
 
 is a mortgagee, he may now (by express statutory pro- 
 vision) make all the usual charges of a mortgagee. But 
 
 Secondly, if he is merely a solicitor (and neither a 
 trustee nor a mortgagee), the rules applicable to his re- 
 muneration (for professional services) may be stated as 
 follows : — 
 
 (1) An agreement between a solicitor and his client, 
 that a gross sum shall be paid for past costs, is valid, 
 provided the agreement be in writing (d) ; but it behoves 
 the solicitor to use great caution, and to preserve sufficient 
 evidence that the transaction was a fair one, and that the 
 client was not under the influence of the solicitor (e): And 
 
 (2) An agreement by a solicitor, to receive a fixed sum 
 by way of costs for future business, — although it was for- 
 merly invalid and would have been set aside even after 
 payment (/), — will now, under the 33 & 34 Vict. c. 28, 
 s. 4 (as regards contentious business), and under the 
 44 & 45 Vict. c. 44, s. 8 (as regards non-oontentious 
 business), be good and valid, provided again it be in 
 writing {g) . But 
 
 (3) Every such contract is subject to taxation as a bill 
 of oosts, — and may (if improper) be get aside (h): Also, 
 in every ease, the amount payable under the agreement 
 must have regard to the work done (i) ; and the solicitor 
 must not (by the agreement) place himsslf in any posi- 
 tion in which his duty and his interest conflict (Jc). 
 
 And here note, that (excepting by agreement) a soli- 
 citor must see a matter through, before asking for his 
 
 [d] III reSussell, 30 Ch. Div. 114. 
 
 (c) Morgan v. Biggins, 1 Giff. 277. 
 
 (/) In re Newman, 30 Beav. 196. 
 
 \g) Bake v. French (No. 2), 1907, 2 Ch. 215. 
 
 (h) In re Frape, 1893, 2 Ch. 284. 
 
 (s) Ex parte Calhcart, 1893, 2 Q. B. 201. 
 
 \k) In re Haslam and Hier-Fvans, 1902, 1 Ch. 765. 
 
CONSTRUCTIVE FRAUD. 425 
 
 remuneration (?), — but the exceptional circumstances of 
 the case might make a difference in that, — especially in 
 long -protracted Chancery proceedings. 
 
 As regards the relation of trustee and cestui one trust, (5) Trustee 
 
 J. , °. . , , , ; 1 ,1 • 1-11 and cestm one 
 
 — A trustee is bound not to do anything which places trust. 
 him in a position inconsistent with the interests of the 
 trust, or which has a tendency to interfere with his own 
 duty in discharging the trust: Therefore a "purchase" 
 by the trustee from his cestui que trust (although at an 
 adequate price) may be set aside at the option of the 
 cestui que trust, — For, as observed by Lord Eldon (m), 
 — and also by Lord Cottenham (n), — though you may see 
 in a particular case that the trustee has not taken any 
 advantage, it is utterly impossible (in ninety-nine cases-- 
 out of a hundred) to see whether he has done so or not, — 
 So that even when the cestui que trust demonstrably in- 
 tended the trustee to purchase, the purchase is regarded 
 "with infinite jealousy " (o). Also, a trustee is never 
 permitted to accept of a Gift from his cestui que trust, 
 except under circumstances which would make the gift 
 valid in a case of guardianship: That is to say, the re- 
 lation must have ceased (and the influence arising from 
 that relation must also have ceased), in order to the 
 validity of the gift. 
 
 And all the same (or the like) principles are applicable (6) -Piincipal 
 to the relation of principal and agent, — So that, agents 
 may not become either the secret vendors or the secret 
 purchasers of the property which they are entrusted with 
 on behalf of their principals {p); nor can they, in fact, 
 deal at all with their principals, ivithout a full dis- 
 closwe(q): If, therefore, an agent, employed to pur- 
 chase, purchase for himself, he will be held a trustee for 
 his principal (r), — and will not be permitted to make a 
 profit out of the transaction (s), — not even, semble, when 
 
 (1) Whitehead V. Lord, 7 Exch. 691. 
 
 (m) Ex parte James, S Ves. 337. 
 
 («) In re BUye's Trust, 1 Mac. & a. 481. 
 
 (o) Coles V. Treeothick, 9 Ves. 234. 
 
 {p) aiarterv. Trei-elyan, 11 0. & F. 714. 
 
 (?) De Bussche v. Alt, 8 Ch. Div. 286. 
 
 ()•) lees V. Nuttall, 1 Russ. & My. 53. 
 
 («) Grant v. Gold Exploration, 1900, 1 Q. B. 233. 
 
426 
 
 THE OEIGINALLY CONCTJRKENT JUEISDICTION . 
 
 (7) Counsel, he is ii broker (i): Similarly, counsel (m), assignees of, 
 &c?*andTh'eir bankrupts' estates (cc), auctioneers {y), and the like. But 
 clients. a broker is not, semble, within these rules {z) . 
 
 III. Construc- 
 tive frauds, as 
 teing injurious 
 to the rights of 
 third parties. 
 
 (1) Common 
 sailors, — con- 
 tracts hy. 
 
 (2) _ 
 ■with heirs and 
 expectants. 
 
 ('2a) Uncon- 
 scionable 
 loans,^ — 
 generally. 
 
 III. Constructive Frauds, Because Prejudicial gene- 
 rally to the Private Rights and Interests of Third Per- 
 sons. — The improvident contracts of common sailors are 
 an example of these; and relief will, generally, be given, 
 whenever any inequality appears in the bargain, or any 
 undue advantage appears to have been taken (a). Also, 
 bargains with heirs, reversioners, legatees, and expectants, 
 during the lives of their ancestors or testators (or while 
 their enjoyment of the property is otherwise deferred), 
 will bo relieved against, — unless the purchaser can show 
 that a fair price was paid (6); and from the mere in- 
 adequacy of the price, fraud will be presumed (e) ; and 
 the onus, therefore, is o,n the purchaser to show, that 
 the transaction is a reasonable one: But a "fair" price 
 is not required to be a "full" price (<Z). And what is 
 above stated regarding purchases, holds true also regard- 
 ing loans/e). Moreover, the jurisdiction in equity was 
 not affected by the 31 & 32 Vict. c. 4, which enacted, that 
 no purchase made bond fide of a reversionary interest 
 should be thereafter set aside merely on the ground of 
 undervalue (/) . Also, the fact that the father was aware 
 of (or even took part in) the transaction, would not neces- 
 sarily have made that valid which would otherwise have 
 been void, — although that circumstance would have raised 
 a slight presumption in favour of the lender; and where 
 a father (being unable himself to supply his son's neces- 
 sities) assisted him in raising the money, — and presum- 
 ably advised him for the best, — the Court would perhaps 
 infer (but would not peadily infer) that the bargain was 
 fair enough {g) . 
 
 (t) Stubbs V. Slater, 1910, 1 Ch. 19-3. 
 
 («) MacPherson v. Watt, 3 App. Oa. 254. 
 
 (a;) Ludcly's Trustee v. Peard, 33 Ch. D. 600. 
 
 iy) Crnwthcr w. Elgood, 34 Oh. Div. 698. 
 
 (z) Robinson v. Mollett, L. R. 7 H. L. 802. 
 
 (a) Dow V. Wheldon, 2 Ves. Sr. 516. 
 
 (i) Perfect v. Lam, 3 De G. F. & J. 369 
 
 (c) Fry V. Lane, 40 Ch. Div. 312. 
 
 \d) Trye's case, 7 CI. & P. 436. 
 
 \e) Nevill v. Snelling, 15 Ch. Div. 679. 
 
 (/) Tyhr v. Yates, L. E. 6 Ch. App. 665. 
 
 (g) King v. Sacery, 5 H. L. Cas. 267. 
 
CONSTRUCTIVE FRAUD. 427 
 
 By the Money Lenders Act, 1900 (^.),— for the pro- Money 
 tection of borrowers generally, — every money-leader igoo.^oul*' 
 (trading either exclusively or substantially as a money- tracts within. 
 lender, but not otherwise (i)), is required to be registered 
 as such, — or else the loan is simply void (fc) : And where 
 the loan is (for that reason) void, no repayment what- 
 ever need be made by the borrower (Z), — unless, semble, 
 where he is asking for equitable relief (as distinguished 
 from legal relief (m)): The jurisdiction under the Act 
 appears to be wider than the old jurisdiction in equity (n), 
 — and the jurisdiction may, of course, be ex6r<!ised in 
 every Division of the High Court (o) . Also, the loan 
 must be negotiated and also completed (p), — excepting in 
 any unessential part (q), — at the registered office of the 
 money-lender; , and otherwise it is void : And, semble, there 
 cannot be two registered offices for the same money- 
 lending business (r) . 
 
 Post obit bonds are agreements by which borrowers (3) Fast obits 
 agree to pay lumjD sums (exceeding the amounts ad- 
 \anced), on the deaths of the persons under whom they 
 expect to become entitled to property, — and only in the 
 event of their so becoming entitled, and not otherwise (s) : 
 For example, in Chesterfield v. Janssen (t), A., in 1738, 
 gave B.a bond for £20,000, conditioned for the payment 
 to B. on the death of C. of the sum of £10,000; and the 
 amount lent to A. by B. was £5,000; and in 1744, C. 
 died, and A. repaid £1,000 in 1745, and £1,000 in 1746, 
 and then died; and A.'s executors claimed (on behalf of 
 A.'s estate) to be relieved of the bond, — But the Court 
 said, the further sum of £8,000 must be paid, A. having 
 confirmed the transaction by his successive part-repay- 
 
 (A) 63 & C4 Vict. c. f>l. 
 
 (i) LitchfieU v. Dreyfus. 1906, 1 K. B. 584. 
 
 \k) Dotfscase, 1906, 1 Ch. 740. 
 
 (<) Chapman V. Miehaelsm, 1909, 1 Ch. 238. 
 
 (m) Lodge's case, 1907, 1 Ch. 300. 
 
 («) Samuel y. Newbold, 1906, A. C. 461. 
 
 (o) Wilton V. Osborne, 1901, 2 K. B. 110. 
 
 Ip) Gadd's case, 1909, 2 K. B. 353. 
 
 {q) Jackson's case, 1910, 1 K. B. 143, iollo-wmg Zevine's case, 1909, 25 
 T. 1,. K. 711. 
 
 (r) Stirling v. Silburn, 1910, 1 K. B. 67 ; Sadler v. Cobb ^ Co., 1910, 
 1 K. B. 868 ; and Whiteman t. Sadler, 1910, A. C. 514. 
 
 (s) Trye's case, supra. 
 
 {t) 1 Atk. 352. 
 
428 THE OEIGINALLY CONCURRENT JURISDICTION. 
 
 ments in 1745 and 1746, — Because, generally, post obit 
 agreements (when not unconscionable) are good, — SciL, 
 for the sum (with interest thereon) to which ex cequo et 
 
 (4) Tradesmen hono the lender is entitled. Also, where tradesmen have 
 at^e™teava'ant ^'^^^ goods (to expectants) at extravagant prices, equity 
 prices. Only cuts down the claim to the reasonable and just 
 
 amount (u) ; and where (after the pressure of the necessity • 
 has ceased) the party deliberately adopts the contract, it 
 is binding (v). 
 
 (5) Knowingly Where an estate is being offered for sale, and the true 
 producmga owner stands by and encourages the sale, — producing 
 sion to mislead thereby the false impression that the purporting seller 
 a third party, fg tt^g ownor of the estate, — the true owner will be bound 
 
 by the sale (x); and the same rule is applicable also to 
 the sale of personal chattels (y). Also, where executors 
 put it in the power of a broker to misapply securities to 
 bearer, they will be estopped from disputing the broker's 
 authority to deal with the securities {z) : And where the 
 directors of a company (the company having no power 
 to accept bills) accept a bill, and purport to do so on 
 behalf of the company, they are personally liable on the 
 bill, — Soil., because, by their acceptance, they represent, 
 that the company has authority to do so (a) : Also, the 
 company itself will be estopped from saying, that any 
 particular shares are not fully paid up, where it has issued 
 certificates to the effect that the shares are fully paid 
 up (6), — or has (by certification) formally certified to 
 that effect (c) ; and the like estoppel will arise, as regards 
 the bonds or debentures of the company (d) . Also, com- 
 panies may be estopped by mere negligence, — for ex- 
 ample, by parting with the share certificates after certi- 
 fication (e), or by registering a transfer of the shares 
 without production of the share certificate (/) ; but these 
 
 (m) Kinff v. Samlet, 3 01. & F. 218. 
 
 (v) Jacques-Oartier v. Montreal City Bank, 13 App. Ca. 111. 
 
 (x) Price V. Neault, 12 App. Ca. 110. 
 
 [y] Piekard v. Sears, 6 A. & E. 469. 
 
 (z) Thompson v. GlydcsdaU Bank, 1893, A. C. 282. 
 
 (a) West London Commercial Bank v. Eitson, 13 Q. B. D. 360. 
 
 (b) In re reuve Monnier, 1896, 2 Ch. 525. 
 
 (c) In re Concessions Trusts, 1896, 2 Ch. 757. 
 {d) Robinsons. Brewery Co., 1896, 2 Ch. 841. 
 {e) Longmany. Bath Electric, 1905, 1 Ch. 646. 
 (/) Sainford's case, 1905, 2 Ch. 147. 
 
CONSTRUCTIVE FRAUD. 429 
 
 estoppels are not to be pressed too far against com- 
 panies, — especially where there has been negligence also 
 on the part of the complaining party (g), and where it is 
 the company's secretary (rather than the company itself) 
 that has been guilty of the negligence (h) . 
 
 Where a borrower represented that he was entitled to (6) Eepresen- 
 have a lease for ninety-nine years; and the lender ^fo^etfui- 
 required a written confirmation of that; and the lessor lJ^ss°orone's 
 {being told of the requisition and of its object) gave the ^"g_ko^' 
 written confirmation; and the loan was made upon the fraudulent, 
 faith of it, — And afterwards it appeared, that the lessor 
 had already granted the lease, but had forgotten all about 
 it, and that the lease had been already mortgaged by the 
 borrower, — The lessor was held liable, to the extent of 
 the sum advanced (with interest (^")). But the lessor 
 might have declined to give the confirmation, — and might 
 have declined to answer at all (Jc) ; and a man is not, noiv, 
 considered liable as for negligence {being for get fulness), 
 — unless in cases where he is under a duty to the party (or 
 places himself under such a duty {I)). 
 
 By the 30 & 31 Vict. c. 48, s. 6 (as regards lands), .a (7) Agree- 
 vendor of real property may (in the particulars or condi- ^^ctio^ not to 
 tions of sale) openly reserve the liberty to bid (in person bid against one 
 or by one agent) at the sale; and by the 56 & 57 .Vict. ^"°*^^''- 
 c. 71, s. 58 (as regards goods), the like right to bid may 
 be reserved : And the necessity for these special provisions 
 seems to show (and certainly suggests), that the employ- 
 ment of puffers at auctions (where the liberty to bid bad 
 not been so reserved) is a constructive fraud on purchasers, 
 disentitling vendors to {e.g.) the remedy by specific per- 
 formance (m), — and entitling purchasers to rescind, and 
 to recover back their deposits {n) : But the opinion is 
 prevalent enough, that a "Jcnock-out" sale is not 
 illegal (o) . 
 
 iff) Sheffield Corporation t. Barclay, 1905, A. 0. 392. 
 
 (h) Geo. Whiteehurchv. Oavanagli, 1902, A. C. 117. 
 
 (i) Slim V. Croucher, 1 De G. F. & J. 518. 
 
 (A) Low Y. Bouverie, 1891, 3 Ch. 82. 
 
 [l] Le Lievre v. Gould, 1893, 1 Q. B. 491. 
 
 (m) Mortimer v. Bell, L. R. 1 Ch. App. 10. 
 
 (m) Thomett v. Haines. 15 Mee. & W. 367. 
 
 (o) Halsbury, Laws of England, vol. i. p. 512. 
 
430 
 
 THE ORIGINALLY CONCUREENT JUEiaDICTION. 
 
 (8) Frauds 
 upon creditors 
 consenting to 
 composition 
 deeds. 
 
 prepared to 
 prove its 
 bona fides. 
 
 As regards composition deeds, — If a creditor who is a 
 party to the deed stipulates for some clandestine ad- 
 vantage (as a condition of his executing the deed), and 
 his execution of the deed has induced other creditors to 
 execute it, that is a fraud, — ^and the money paid may be 
 recovered back (p) ; and (by the Scotch law) double that 
 amount is (or used to be) recoverable (g) . Also, any 
 money paid by the outstanding creditor to the estate of 
 the debtor, if the payment is part and parcel of the 
 fraudulent agreement, is not recoverable back, — nor may 
 such a creditor prove for it if) . 
 
 (^ ■*-P^^^°'' As regards every transaction whereby one person 
 donation.must obtains (by gift) a benefit from another, the donee ought 
 always be to bg able to show that the donor deliberately performed 
 the act, knowing at the time its nature and effect; but a 
 voluntary settlement (if it be otherwise proper) is not bad, 
 merely because it contains no power of revocation (s), — 
 nor is the donee under any duty to show that the settle- 
 ment was intended to be without power of revocation (t), 
 ■ — Because, generally, where there has once been a gift, 
 the onus is on the donor, — if he would take back the' 
 gift, — to show, that there has been some mistake on his 
 part or else a fraud on him (m) . 
 
 The donee of a special power of appointment must 
 exercise the power bond fide and for the end designed (x), 
 and not. for any purpose which is foreign to the power («/) : 
 For example, where a parent is the donee of a power of 
 appointment among his children; and he appoints to one 
 of the children, M^ow a bargain for Ms {the parent's) oivn 
 advantage, — Equity will relieve against the appoint- 
 ment (2) ; and, in such a case, the appointment will be void 
 altogether {a) . Also, where there is a secret understand- 
 
 (10) A power 
 must be exer- 
 cised bond fide 
 for the end 
 designed. 
 
 {p) Eiggins v. Pitt, 4 Exoh. 312. 
 
 (?) Garter v. McLaren, L. R. 2 H. L. So. 120. 
 
 (r) In re Myers, 1908, 1 K. B. 941. 
 
 («) Taker v. Taker, 3 De G. J. & S. 487. 
 
 {t} Hall V. Hall, L. B. 8 Oh. App. 430. 
 
 (m) Henry v. Armstrong, 18 Ch. D. 668. 
 
 {x) Aleyn v. Belchicr, 1 Eden, 132. 
 
 \y) Brookes v. Cohen, 1911, 1 Ch. 37. 
 
 (z) Henty v. Wrey, 21 Ch. T>. 332. 
 
 (a) Cloufte V. Storey, 1911, 1 Ch. 18. 
 
CONSTRUCTIVE FRAUD. ' ^gj 
 
 ing between the donee and the appointee, that the ap- 
 pointee shall {e.g.) assign back a part of the fund to the 
 appointor (&), — or to the appointor's creditors, — that also 
 is a fraud (c). But a power in A.B. to jointure his wife 
 is an exception, apparently, to this rule {d). And where 
 any one has a power to create portions for his children 
 (and also to fix the time when they are to be raised) ; and 
 he appoints to a child during the child's infancy, and 
 while the child is not in want of the portion, and the 
 death of the child is at the time of the appointment 
 expected, — In such a case, the parent will not (as the per- 
 sonal representative of the child) be allowed, on the child's 
 death under age, to derive any benefit from the appoint- 
 ment (e) . But where the exercise of a special power of 
 appointment is void in part only, and the other part is 
 severable, the appointment will (as to the latter part) 
 be valid (/) ; and if there have been sucoeesive appoint- 
 ments, and all of them are bad, save the last one, the 
 original badness is sometimes said to be " eliminated,'" — 
 and the last one of the successive appointments becomes 
 gooA{g). 
 
 Where a father has a power to appoint among hisj But a release 
 children, and the children are entitled in default of a-p- !!altho^uJhil 
 pointment, the father may validly release the power, — may operate 
 even if he should himself thereby acquire some pecuniary of'the^do™! 
 a'dvantage which he oould not have obtained upon any of the power, 
 actual exercise of the power (^): Therefore, where there valid, 
 was such a power of appointment in the father, and (in the 
 events which had happened) the power had become a power 
 to appoint exclusively in favour of a daughter or her issue, 
 — ^and (in default of appointment) the daughter was abso- 
 lutely entitled to the property, — and the father released 
 the power; and thereafter he and his daughter mortgaged 
 
 [b) Daubeny t. Cockbum, 1 Mer. 626. 
 
 \e) Carver v. Richards, 1 De. G-. P. & J. 548. 
 
 (etj Saunders V. Shafto, 190.5, 1 Ch. 126. 
 
 («) Roach v. Trood, 3 Ch Div. 429. 
 
 (/) Perkins Y. Bagot, 1893, 1 Ch. 283. 
 
 (g) Carver v. Richards, 1 De Gr. F. & J. 548. 
 
 (A) Eadcliffe v. Bewes, 1892, 1 Ch. 227. 
 
432 THE ORIGINALLY CONCUKEENT JURISDICTION. 
 
 the property to secure a gum of £10,000 (paid to the father 
 and applied by him for his own purposes), — The Court 
 held, that the release was valid, and (with it) the 
 mortgage (i). But, nota bene, a power which is 
 "coupled with a duty" may not be released (/c), — nor 
 may the exercise of it be even fettered. 
 
 Coveuant to Where the power of appointment is a general power, it 
 
 powCTtiywill, '^^y (equally with a special power) be released, — Scil.., 
 —in one by deed: And where it is exerciseable by will only, the 
 
 way'— donee of the power may covenant either not to exercise it 
 
 or (if she does exercise it) to exercise it only in favour of 
 A., B., and C, and no others, — or only to a limited extent, 
 and so as to " negatively tie his exercise " of the power (J) : 
 Such a -i^ut such a covenant (even when it is for value) is not 
 
 <=oY™a^tisnot specifically enforceable by A., B., and C, — Although, for 
 but damages breach of the covenant, damages would be recoverable (m) : 
 (for the Also, a bond given to secure the exercise of the power in 
 
 may be ' the way Specified would be on the same footing as the 
 recoverable. covenant («) : Therefore, where the donee of a general 
 power of appointment (exerciseable by will only) borrowed 
 £x of A., and (by way of securing him) covenanted with 
 A. to appoint in his favour, — and so as to give him 
 a first charge on the appointment property, — and not to 
 revoke that appointment; And he did, in fact, appoint 
 in favour of A. accordingly, — A. was held to be entitled 
 to rank only with the unsecured creditors of the appointor, 
 ^and to be paid pmi passu with them (and without any 
 priority over them) in respect of his purported first 
 charge (o), — Scil., because every appointment by will 
 makes the property assets for the creditors generally, and 
 the appointment by will to A. was a bequest by will to 
 A., — and not the less so, merely because of the prior agree- 
 ment (by covenant or bond) to make the bequest. But 
 if (in such a case) the appointor constitutes A. his execu- 
 tor, A. will, semble, obtain priority, — to the extent that 
 
 (t) Smiths. Somes, 1896, 1 Ch. 250. 
 
 {Ic) Chamiers v. Smith, 3 App. Ca. 795. 
 
 (?) In re Evered, Molineiix v. Evered, 1910, 2 Ch. 147. 
 
 (m) mil V. Schwartz, 1892, 3 Ch. 510. 
 
 (m) Falmer v. Noake, 15 Ch. D. 294. 
 
 (o) Zaiser v. Lawley, 1903, A. C. 411. 
 
CONSTRUCTIVE FRAUD. 433 
 
 his right of retainer as executor shall extend to give 
 him priority over the other creditors. 
 
 Where the donee of a power exercised the power, by Doctrine of 
 appointing to one or more of the objects a merely nominal appSnents. 
 share of the property,— such an appointment (although ■ 
 valid at law) would have been set aside in equity as an 
 "illusory" appointment (p),— Until, by the 1 Will. IV. 
 c. 46, it was declared, that no appointment should be 
 invalid, on the ground merely that an illusory share of 
 the property had been appointed to any object of the 
 power. And, as a consequence of that Act, the appointor 
 might have cut off any appointee "with a shilling" (as 
 the phrase went); and now, by the 37 & 38 Vict. c. 37, 
 as regards any appointment made after the 30th May, 
 1874, the appointor may cut off any particular appointee 
 oven " without the shilling,"— SczZ., unless the power itself 
 expressly directs, that no object of the poiver is to receive 
 less than some specified amount {q). 
 
 Where a s.ub-lessor of building land represented to the (H) A man 
 plaintiff, that he (the sub-lessor) could not build so as to certaS°tSf of 
 obstruct the sea-view from the houses which were going to facts as an 
 be built by the plaintiff as sub-lessee, — saying, that (as L^TOntoct)' *° 
 the fact was) he (the sub-lessor) was by his own lease for cannot dero- 
 999 years (and which comprised certain intervening land) fy his™wn 
 prevented from doing that, — And (upon the faith of that g^g't^^?' ^•^■' 
 representation) the sub-lease was taken, and the houses sea-view; 
 were built, — And (subsequently thereto) the sub-lessor 
 surrendered his 999 years' lease, and took (in lieu thereof) 
 a new lease, not containing any like restriction as to 
 building, — The Court restrained the sub-lessor, from 
 building so as to obstruct the sea-view (r), — Scil., Be- 
 cause, of course, the surrender of the old lease was subject 
 to the plaintiff's then already acquired rights (s) . Also, °^ otherwise 
 where there was a large building adapted for letting in peace and . 
 residential flats, and the plaintiff and others (occupants SJJJfij^*^ 
 
 {p) Wilson V. Piggott, 2 Vea. 351. 
 (?) In re Capm's Trusts, 10 Ch. Biv. 484. 
 (r) Piggott v. Straton, 1 De G. F. & J. 33. 
 («) Smalley v. Sardinge, 7 Q. B. D. 524, 
 
 S. F F 
 
^34 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 of the flats) held under tenancy agreements containing 
 provisions for their occupation only as residential flats, — 
 The landlord was restrained from converting the unoccu- 
 pied portion of the building into a club {t), — Sail., Be- 
 cause a man shall not be permitted to derogate from his 
 own previous grant (whether express or implied (m)): 
 But you must, of course, be able to show, that the thing 
 yOu are complaining of is, in fact, a derogation from 
 the previous grant (x) . 
 
 {t) Sudson V. Crippa, 1896, 1 Ch. 265. 
 («) Martin v. Spicer, 14 App. Ca, 12. 
 (x) Eigby v. Bennett, 21 Ch. D. 559. 
 
435 
 
 CHAPTEK V. 
 
 STJEETYSHIP. 
 
 The Contract of Insurance requires the utmost good Siiretyship,— 
 faith between the parties to it, — and is uherrimce, fidei ; what extent 
 but suretyship is not like insurance in that respect, — at °^7^ acon- 
 least, in its inception («), although in its incidents a,nd J^ei" ^'"^ 
 consequences it may be so (b) : That is to say, — The 
 creditor is iinder no duty towards the surety, to inquire 
 into the circumstances under which the surety becomes a 
 surety, — unless where the circumstances are excep- 
 tional (c) . 
 
 The Statute of Frauds (29 Car. II. c. 3), by s. 4, Under Statute 
 requires, that the agreement to become and be a surety ^^^g*^'" 
 (or liable as a guarantee for the debt of another) shall be required for a 
 in writing, — and, of course, therefore, no one is bound 'ffe""!^ScU 
 as a surety without writing; but the case is different, if bemga 
 the so-called "suretyship" is, in fact, a substantive and girictiTso**" 
 independent (primary) liability, — sometimes called an called. 
 "indemnity" {d). 
 
 The rights of the creditor against the surety are wholly Bights of 
 regulated by the written agreement; and where an obliga- against'^ 
 tion arises only by \rirtue of a written agreement, the surety,— 
 extent of the obligation is to be measured by the words thf^Mteument 
 of the agreement (e), — So that {e.g.) where a surety is of guarantee. ^ 
 bound by a joint bond, the Court will treat the joint 
 bond as a joint bond, — and will not make it a several 
 bond(/). Also, whether the bond is joint or is joint 
 
 (ffl) SeatmY. Burnand, 1900, A. 0. 135. 
 (A) Pidioclc V. Bishop, 3 B. & 0. 605. 
 
 (c) Owen V. Soman, 4 H. L Ga. 997. 
 
 (d) Guild ^ Co. V. Conrad, 1891, 2 Q. B. 885. 
 («) Sumner v. Powell, 2 Mer. 35, 36. 
 
 (/) Rawstone v. Parr, 3 Eus9. 424, 539. 
 
 F F 2 
 
436 
 
 THE ORIGINALLY CONCUREENT JURISDICTION. 
 
 and several, if the obligors purport thereon to be liable to 
 the obligee direct, you cannot (as against the obligee) 
 show, that one or more of them were sureties only (g) . 
 
 The question also of the duration of the suretyship, — 
 and whether it is for goods supplied once only or for a 
 continuing supply (h) ; and whether it is (as it usually 
 will be (i)) determined by the death of the surety and 
 by notice of the death, or continues after the death and 
 after notice of the death (fe), — and the question, whether 
 the suretyship is for a part only (or for the whole) of the 
 debt (l), — All these questions appear to be also merely 
 questions of construction. But a suretyship, which is 
 expressed to be a continuing one, will not be determined 
 by the death of the surety, if the suretyship agreement 
 contains a specific provision for its determination, and 
 such provision is as applicable after the death as before 
 the death (to) : Also, the very nature of the liability in- 
 sured against will, occasionally, itself show, that the 
 obligation is to continue after the death and after notice 
 of the death (n). 
 
 Surety,— If the written guarantee so express, the surety will be 
 
 when and bound, even when the principal debtor is not bound, — a 
 
 XynftT) not 
 
 discharged by surety being often insisted upon, precisely because of the 
 the discharge inability of the principal debtor to validly borrow (o) . 
 
 Or Ti TiTi fti'nftl " . . 
 
 debtor. , Moreover, the surety (being onoe bound) will continue 
 
 bound, even after the principal debtor (being a company) 
 has ceased to exist, — That is to say, if (by the 'agreement) 
 the surety is to be liable for the interest, until the prin- 
 cdpal of the debt "is paid" (p), — although not, if the 
 surety is to be liable for the interest, only while the 
 principal of the debt "remains due" {q). But, where 
 
 (g) Swire \. Redman, 1 Q. B. D. 536. 
 
 {h'l Heffield v. Meadows, L. E. i C. P. ."igS. 
 
 (i) Harriss v. Fawcett, L. R. 15 Eq. 311. 
 
 (/c) Lloyds V. Harper, 16 Oh. Div. 290. 
 
 \l) In re Sass, 1896, 2 Q. B. 12. 
 
 (m) Midland JR. 0. v. Silvester, 1895, 1 Ch. 573. 
 
 («) Balfour y. Crace, 1902, 1 Ch. 733. 
 
 (o) Ynrhsltire Railway Waggon Co. v. Maclure, 19 Ch. Div. 478. 
 
 (jo) In re FitzGeorge, 1905, 1 K. B. 462. 
 
 \q) In re Moss, 1905, 2 K. B. 307. 
 
STJKETYSHIP. iST 
 
 one 00-surety executes the guarantee on the faith that 
 the other or others shall execute it also, — and they fail 
 to do so, — the executing surety will not he bound (r) . 
 
 A surety cannot ordinarily compel the creditor to pro- Remedies 
 oeed against the debtor; but (upon giving the creditor a s^eiy!'* ""^ 
 sufficient indemnity against the costs of the action) he (i) Surety 
 may, perhaps, require the creditor to proceed against the caimot compel 
 debtor (s); and the surety may himself {at any moment oeed against "' 
 after the debt becomes payable) pay the creditor, and then debtor,— save, 
 proceed against the debtor (t): A surety may also some- giving' an 
 times proceed quia timet to compel the debtor to pay indemnity; 
 the debt (u), — as where the creditor has a present right acUc^quS^^ 
 to sue the debtor, and refuses to sue him (x), — or demands timet, to 
 payment of the surety («/). mSitb/''^' 
 
 debtor. 
 
 A surety may also file a bill for a declaration, that his (2) Judicial 
 liability is at an end, — Scil., where the course of dealing ^^at^i^ty' 
 between the principal debtor and the creditor has operated discharged, 
 as a release (2:): And, for example, if you are a surety 
 to A . for the rent payable by A . 's tenant B . , — that means, 
 in general, for B.'s rent under his then existing tenancy- 
 agreement, — So that the suretyship extends not to a new 
 tenancy-agreement subsequent (a) ; and the only difficulty 
 arising in that class of case is, to know whether the exist- 
 ing tenancy is (in fact) a new tenancy(&), or is only the 
 old tenancy re-continued (c). And here note, that the in- 
 demnity is not, in such a case, discharged, unless and until 
 A. (the landlord) really gets paid(d). 
 
 Where the surety pays the debt on behalf of the prin- (?) Action for 
 cipal debtor, the rule (even at law (e)) is, that he has a mentby'^" 
 right to call upon the debtor for reimbursement, — a right debtor. 
 
 (r) Svms V. Bremridge, 8 De G-. M. & G. 100. 
 
 (s) Newton v. Charlton, 10 Hare, 646. 
 
 \t) Wright v. Simpson, 6 Ves. 733. 
 
 («) Wooldridge v. Norris, L. K. 6 Eq. 410. 
 
 (x) Padwick v. Stanley, 9 Hare, 627. 
 
 \y) Ascherson's cane, 1909, 2 Ch. 40JI. 
 
 (z) In re Fox, Walker ^- Co., 15 Ch. Div. 400. 
 
 la) Tayleur v. Wildin, L. R. 3 Exch. 303. 
 
 (A) ffolme V. Brunskill, 3 Q. B. D. 495. 
 
 \c) Nuttall T. Staunton, 4 B. & C. 51. 
 
 (d) In re Richardson, Ex parte St. Thomases Hospital, 1911, 2 K. B. 706. 
 
 («) Toussaint Y. Martinnant, 2 T. E. 105. 
 
U8 
 
 THE OEIGINALLY CONCUERENT JURISDICTION. 
 
 which has been put upon the ground of an implied con- 
 tract (on the part of the debtor) to repay the money so paid 
 an his account (/) : And the surety is (in such a case) sub- 
 rogated (in fact) to all the creditor's rights (ff), — SciL, 
 as against the debtor (h), and as against the trustee in 
 bankruptcy of the debtor (^), — So that, if the creditor 
 is a specialty creditor, so also (after payment) will the 
 surety be (k) ; ,and if the creditor is the crown, the surety 
 (after payment) will have the priority of the crown (t). 
 
 deii4'^°u *°f ^^ *'^'® creditor has taken some additional (collateral) 
 securities by securities from the principal debtor, the surety is entitled 
 creditor. (upon payment of the debt) to have the benefit of all 
 
 these collateral securities also (m) : And although this 
 right of the surety used not to extend to those securities 
 (e.g., bonds), which (upon payment) became extin- 
 guished (w), yet a surety is now entitled, under the Mer- 
 cantile Law Amendment Act (19 & 20 Vict. c. 97), s. 5, 
 to have assigned to him every security which shall be 
 held by the creditor in respect of the debt, whether it 
 shall or shall not at law be deemed to have been satisfied 
 by the payment of the debt, — the Act operating an im- 
 plied assignment pi the security (o) . And this right of 
 a surety (to the delivery up of the collateral securities) 
 extends also ^o ^ surety who is such merely because of 
 having indorsed ,(and, as indorser, paid) a bill of ex- 
 change (p): Also, an insurance company (on payment 
 of the loss insured against) is entitled to be put in the 
 place of the person insured (g), — So that, if (e.g.) the 
 latter should (subsequently) receive from other sources 
 dompensation for the loss, the company (having so already 
 paid the loss) will be entitled to recover from him the 
 compensation subsequently received by him (r) . 
 
 (/) Craythorne\. Swinburne, 14 Ves. 162. 
 
 {g) Finlay t. Mexican Investment Corporation, 1897, 1 Q. B. 517. 
 
 [h) In re Wrexham, ^c. R. C, 1899, 1 Ch. 440. 
 
 (i) Gray v. Seckham, L. B. 7 Ch. App. 680. 
 
 (A) Robinson v. Wilson, 2 Madd. 434. 
 
 (I) Manisty T. Churchill, 39 Ch. D. 174. 
 
 (m) Bodgson v. Shaw, 3 My. & Keen, 190. 
 
 \n) Copis V. Middleton, 1 T. & R. 229. 
 
 (o) Re M'Myn, 33 Ch. Div. 575. 
 
 ( p) Duncan Fox ^ Co. v. North and South Wales Bank, 6 App. Ca. I . 
 
 (}) Darrell v. Tibbitts, 5 Q. B. D. 660. 
 
 (r) Phwnix Office v. Spooner, 1905, 2 K. B. 753. 
 
SURETYSHIP. 439 
 
 .Where there are two or more sureties, and one of them (6) Actioji 
 pays the whole debt, he has a right to contribution from co-^^eties for 
 his co-surety or oo-sureties, — A doctrine which (it has contribution, 
 been said) "is bottomed and fixed on general principles 
 of justice, and does not spring from contract, though con- 
 tract may qualify it" (s), — That is to say, the "common 
 liaMlity " of all is to be sharpd by each (t) : Also, the right 
 to contribution may exist even before actual paj'ment, — 
 as, e.g., when there has been a judgment against the 
 surety for the debt (u), — from which date also (and not 
 from the date of the suretyship), time will begin to run 
 against the claim for contribution (v) . And the law of 
 dontribution is applicable, whether the parties are bound 
 in the same or in different instruments, — provided only 
 they are co-sureties for the same debtor and the same debt, 
 — that is to say, provided there is a common liability and 
 not otherwise (x) : Also, it makes no difference, if they are 
 bound in different sums, — excepting that the contribution 
 cannot, of course, be required of any of the co-sureties 
 beyond the sums for which they are respectively 
 bound (y), — the surety proving nevertheless for the whole 
 of the debt, although recovering (in fact) only the co- 
 surety's proportion {z) . 
 
 A surety who has obtained from the principal debtor a 
 counter -security for the liability he has undertaken, is 
 bound to bring* into hotchpot (for the benefit of his Oo- 
 sureties) whatever he receives from that source, — and that, 
 even although he consented to be a surety, only upon the 
 terms of having such counter - security, — and even . 
 although the co-sureties (when they entered into the con- 
 tract of suretyship) were ignorant of the agreement for 
 such counter-security {a) : But, the principal creditor is 
 not entitled to the benefit of such counter -security (&). 
 
 (») Derinff V. Winchehea, 1 Cox, 318. 
 
 (t) Johnson v. Wild, 44 Ch. D. 146. 
 
 (w) Wolmershamen v. Gullick, 1893, 2 Ch. 514. 
 
 (») Robinson v. Harkin, 1896, 2 Ch. 415. 
 
 [x) Smith V. Cock, 1911, A. C. 317. 
 
 (y) Coles V. Peyton, 1893, 3 Ch. 238. 
 
 fz) Morgan v. Sill, 1H94, 3 Ch. 400. 
 
 (a) ateel v. Dixon, 17 Ch. D. 825. 
 
 (i) Sheffield SanUng Co. v. Clayton, 1892, 1 Ch. 621. 
 
440 
 
 THE OEIGINALLY CONCUEKENT JURISDICTION. 
 
 Contribution The like right of contribution ebcists also (in the gtetneral 
 co-direotors ; Case), in favour of one director of a company against his 
 co-directors, — for example, in respect of advances made 
 to the company upon the express suretyship' of the direc- 
 tors, — or where (from the loan being unauthorised or 
 otherwise) the company is not liable at all, but the 
 directors making the loan are personally liable (c) . * Also, 
 oo-directors (d), and co-promoters also (e), have,^or may 
 have, — the right to contribution (as against each other) 
 in respect of the damages which either of them has had to 
 pay as mmpensation for statutory frauds in prospectuses 
 and the like; 
 
 and aa between And as regards co-trustees, the right of contribution (as 
 between them) for losses arising from a breach of trust, is 
 (in the absence of fraud) a matter of course; and such 
 right is enforceable also against. the estate of a deceased 
 oo-trustee (/): On the other hand, the right of indemnity 
 {i.e., recoupment) is not a matter of course; but where 
 there are special ciroum'stanoes, — ^aJs where {e.g.) the 
 trustee who has been the actor in the breach is the solicitor 
 of the trust (or has derived a personal benefit from the 
 breach), — the right of the oo-trustse to recoupment would 
 be allowed {g>) . Also, where one of the two trustees is a 
 beneficiary, and the breach of trust (or the judgment 
 therefor against both) is satisfied out of the beneficial 
 interest of the one, he (the beneficiary) has no right to 
 contribution, although both trustees may be in equal 
 blame {h) . Lastly, as between co-tort -feasors there is 
 no right to contribution {i) ; but -the liability of co- 
 directors and of co-promoters for their statutory frauds 
 is not the liability for a tort within the meaning of this 
 rule (fc). 
 
 (c) Bamskill v. Edwards, 31 Beav. 100. 
 
 \d) ShepheardY. Bray, 1907, 2 Ch. 571. 
 
 (e) Gerson v. Simpson, 1903, 2 K. B. 197. 
 
 (/) JaclcsortY. McJcinsm, 1903, 1 Ch. 947. 
 
 Ig) Bahin v. Sughes, 31 Ch. Div. 390. 
 
 [h) Chillingworth v. Chambers, 1896, 1 Ch. 685. 
 
 (J) Merrt/uieather \. Nixan, 8 T. K. 184. 
 
 (A) Oersm v. Simpson, supra. 
 
co-sureties. 
 
 SURETYSHIP. 441 
 
 The right to contribution may, of course, be varied by 
 special agreement: For example, where three co-sureties 
 agreed among themselves, that if the principal debtor 
 failed to pay the debt, they should pay only their respec- 
 tive aliquot parts, — and afterwards one of the three went 
 bankrupt, and one of the other two paid the whole debt, 
 he was held entitled to recover only one-third from the 
 third co-surety (J), — each of the two having also, of 
 course, a right to prove in the bankruptcy, to get what 
 they could get therein, but not exceeding one-third (m) . 
 
 Where there is a surety for the principal debtor, and Surety and 
 the creditor has obtained also (for his greater protection) are not, in the 
 some guarantee or insurance (say, from a guarantee f^^^^f^Jlf^^®' 
 society), against the default of the principal debtor to pay 
 the debt, — The question sometimes arises, whether the 
 surety is liable before (and in exoneration of) the insurer 
 or guarantor, or is liable only fro rata with (and pari 
 passu with) the latter: And it appears, that the surety is 
 (in the general case) liable in exoneration of the insurer or 
 guarantor (w), — and for this purpose, it will not matter, 
 that the surety has not been (and he would not ordinarily 
 be) a party to the instrument of guarantee. 
 
 Where a surety discharges an obligation at a less sum Surety can 
 than its full amount, he cannot (as against the principal ^ebtor^for ^ 
 debtor) make himself a creditor for the whole amount, what he 
 but can only claim what he has actually paid in discharge *<=t"*^y P^'^- 
 of the debt (with interest (o)), — In which particular, the 
 transferee of a mortgage debt (who is neither a trustee 
 nor a surety) is in a very different position, being entitled 
 to claim the full amount of the mortgage- debt, although 
 he should have obtained the transfer at a considerably 
 lower price (p) ; and an inquiry will sometimes be 
 directed, as to whether the transferee is (or is not) in a 
 fiduciary capacity {q) . 
 
 (T) Swain v. Wall, 1 Ch. R. 149. 
 
 (m) In re FarJcer, 1894, 3 Ch. 400. 
 
 («) In re Denton's Estate, 1904, 2 Ch. 118. 
 
 (o) Eeed v. Norris, 2 My. & Cr. 361, 375. 
 
 (p) Dobson Y. land, 8 Ha. 216, at p. 220. 
 
 (j) Batehelor v. Middleton, 6 Ha. 75. 
 
442 
 
 THE ORIGINALLY CONCUEEBNT JURISDICTION. 
 
 Cirouiustanoes 
 discharging 
 the surety ; — 
 
 (1) If creditor 
 varies contract 
 with debtor, 
 without 
 surety's 
 privity. 
 
 A surety will be dischaxged from his liability, where 
 (by acts subsequent to the contract of suretyship) his 
 position has been essentially changed without his con- 
 sent (r) ; but the consent will sometimes be implied, — 
 as between (e.g.) a lessee and his assignee (s). However, 
 if the variation is in relief pro tanto of the surety, he will 
 not be thereby discharged (t); and if there be co-sureties, 
 and the variation in no way affects them inter se, they 
 cannot claim to have been infer se discharged thereby (m). 
 But, surely, it is for the surety to judge of the effect of 
 the variation? 
 
 (2) If creditor 
 gives time in 
 a binding 
 manner to 
 debtor, with- 
 out consent of 
 surety, —and 
 thereby affects 
 the remedies of 
 the surety. 
 
 Debt payable 
 by instal- 
 ments, — 
 giving time as 
 to one of the 
 instalments, 
 effect of, as 
 regards the 
 other instal- 
 ments. 
 
 If a creditor (without the consent of the surety) gives 
 time to the principal debtor (by positive contract be- 
 tween the creditor and the principal debtor), the surety 
 is discharged thereby (a;) : And, in the case of mortgage 
 debts, this rule extends not only to discharge the surety 
 from his personal liability on his covenant to pay the 
 mortgage debt («/), but extends also (it has been said) to 
 release the mortgaged property of the surety (where he 
 is a surety co-mortgagor) from its liability to the 
 charge (z) . But, semble, it may be, that (under a special 
 suretyship) the surety's liability as co-mortgagor may 
 remain, — Scil., a.s regards the mortgaged hereditaments, — 
 even where the principal debtor's personal liability for 
 the debt is wholly gone (a). Also, where the debt for 
 which the surety was bound was a debt payable by three 
 equal monthly instalments; and the surety was bound for 
 each of the three instalments; and the creditor (without 
 the assent of the surety) gave the debtor time for the first 
 instalment, — The surety was held to have been dis- 
 charged as to that instalment only, and not also as 
 regards the two remaining instalments (6); Also, nota 
 bene, if the debt is a bill of exchange or promissory note 
 (which has been successively negotiated by indorsement), 
 
 (r) Bonser v. Cox, 6 Beav. 110. 
 
 (,s) Baynton v. Morgan, 22 Q. B. D. 74. 
 
 \t) Webster v. Peire, 4 Exch. Div. 127. 
 
 (m) Greenwood v. Francis, 1899, 1 Q. B. 312. 
 
 (x) Samuel v. Howarth, 3 Mer. 272. 
 
 {y) Bolton v. Biic/cenham, 1891, 1 Q. B. 278. 
 
 (z) Bolton V. Salmon, 1891, 2 Ch. 48. 
 
 (a) Percy v. N. P. Bank, 1910, W. N". 20. 
 
 (b) Oroyckm Gas v. Dickinson, 2 C. P. D. 46. 
 
SUKETYSHIP. ' 443 
 
 and you give tim« to one of the indorsers, you thereby 
 discharge all the indorsers subsequent to him, but these 
 indorsers only,— the prior indorsers not being 'affected 
 by that. 
 
 A surety will not be discharged by the creditor's giving (2a) Surety 
 time to the debtor, if the creditor's remedies against the chLgId, 
 surety are thereby accelerated, — Scil., because (in such where creditor 
 a case) the surety's remedies against the principal debtor fese^fes'SI 
 remain unaffected (c) : Nor will the surety be discharged, ^S^^ against 
 if the giving of time to the principal debtor is (either '^®^' 
 expressly or impliedly) sanctioned by the original agree- 
 ment of suretyship {d) . Also, generally, the surety will 
 not be discharged, if the creditor (on giving further time 
 to the principal debtor) reserves his right to proceed 
 against the surety, — Soil., because when that right is so 
 reserved, the principal debtor cannot say it is inconsistent 
 with giving him time, that the creditor should be at 
 liberty to proceed against the sureties, and that they (in 
 their turn) should afterwards proceed against him; and 
 the question, whether or not the surety was informed of 
 the agreement, is wholly immaterial (e) . 
 
 The same rule is applicable, where the principal debtor (3) If the 
 purports to be released, and the creditor (at the same rde^esthe 
 time) reserves his rights against the surety, — Excepting principal 
 that, where the purported release is an absolute one, or is effect!^'"" 
 in general terms, and without any reservation of rights 
 against the surety, the surety will be discharged, — and that 
 not from any equity in his favour, but from considerations 
 of bare justice to the principal debtor (/): And in the (3a) If the 
 case of co-sureties, the release of one of them 'by the releases one 
 creditor (even when founded on a mistake of law) operates co-surety,— 
 as a release also of the others {g), — although, if the release 
 is merely a covencmt not to sue (h), it will not operate 
 
 (c) Clarke v. Sirlei/, 41 Ch. Div. 422. 
 
 {d) Souse T. Bradford Bank, 1894, A. 0. 586. 
 
 (e) Webb v. Heuiitt, 3 K. & J. 442. 
 
 (/) Tasmania Bank v. fones, 1893, A. C. 313. 
 
 (g) Sydney Bank v. Taylor, 1893, A. C. 317. 
 
 (A) Nicholson v. Sevill, 4 A. & E. 675. 
 
444 
 
 THE ORIGINALLY CONCUEEENT JURISDICTION. 
 
 to release the co-sureties (^) . But it is to be particularly 
 observed, that a creditor cannot r^erve his rights against 
 the sureties, if he give to the principal debtor an actual 
 release (as distinguished from a liiere purported release 
 or covenant not to sue), — For (on a release) the debt is 
 gone (fc), — and there can be no surety for a debt that 
 is wholly gone (J) : Secus, where the debt is not wholly 
 gone, — as where the release is a qualified release, and by 
 operation of law only (m) . Also, nota bene, an accord 
 and satisfaction with the principal debtor would be 
 equivalent to an actual release, — and to reserve (in that 
 case) any rights against the surety would be inconsis- 
 tent with the accord (n) . 
 
 But, nota bene, although the principal debtor will be 
 discharged, by a statutory composition (o), — equally as 
 by a bankruptcy or liquidation, — Still the statute under 
 which that discharge arises may (and usually does) ex- 
 pressly continue the liability of the surety (p) : And, in 
 the case of a common law composition also, the liability 
 of the surety may be continued by express reservation (q), 
 — but (unless so continued) it is discharged (r) : Further, 
 nota bene, in the winding up of a limited company, — with 
 A. contributories and B. contributories, a compromise 
 with an A. contributory does not operate to release the 
 correlative B. contributory (s), — and, in such a case, the B. 
 contributory will, therefore, have, notwithstanding the 
 compromise, a right to indemnity from the A. contri- 
 butory (i); and that is so, although the A. contributory 
 and the B. contributory do not stand in the relation of 
 debtor and surety. 
 
 (4) If creditor Inasmuch as a surety is entitled (on payment of the 
 or allows ' debt) to all the securities which the creditor has ever had, 
 
 Compositions, 
 statutory 
 and com- 
 mon law, — 
 rights against 
 surety, 
 reserved. 
 
 (») Ward V. National Bank of New Zealand, 8 App. Ch. 755. 
 
 {k) Eearsley v. Cole, 16 Mee. & W. 136. 
 
 [1) Staceyv. Sill, 1901, 1 Q. B. 660; Letton' s case, 1908, 1 K. B. 378. 
 
 (m) In re Jacobs, L. R. 10 Ch. App. 211. 
 
 («) Head T. Bead, 1894, 2 Ch. 236. 
 
 (o) Flint V. Barnard, 22 Q. B. D. 90. 
 
 (p) Ellis V. Wilmot, L. E. 10 Exch. 10. 
 
 (q) Bateson v. Gosling, L. R. 7 C. P. 9. 
 
 (r) Cragoe v. Jones, L. R. 8 Exch. 81. 
 
 (.s) NevilVs case, L. R. 6 Ch. App. 43. 
 
 (i!) Roberts v. Crowe, L. R. 7 0. P. 729. 
 
SURETYSHIP. 445 
 
 — whether such securities were given at the time of (u) or them to go 
 after (x) the contract of suretyship, and with or without ^^^^0^*° 
 the knowledge of the surety, — If the creditor loses the hands,— effect, 
 securities, or suffers them to get back into the possession 
 of the debtor, — or does not make them effectual (by giving 
 the proper notice (y), or by duly registering them (z)), — 
 the surety, to the extent of the securities lohich have so 
 been lost, will be discharged (a) . Also, the surety will, 
 semble, be discharged to the extent of any rights of action 
 or other benefits which the creditor has given up or re- 
 nounced (6). 
 
 All the gieneral rules regarding the marshalling of Marshalling of 
 securities which are stated and illustrated in the chapter asagainst~ 
 on Marshalling Assets, supra, are applicable as against sureties, 
 sureties also (c) ; and the order of working out the suc- 
 cessive redemptions and foreclosures of mortgaged estates, 
 stated in the chapter on Mortgages, supra (d), is applic- 
 able also to sureties, — being subject (as against sureties 
 also) to the doctrine of consolidation, stated and illus- 
 trated in the same chapter, but now greatly cut down by 
 the Conveyancing Act, 1881: But regarding sureties in 
 mortgage deeds, the distinctions, which are stated on 
 p. 277, supra, must always be borne in mind, — it making 
 a very great difference indeed, whether the surety is a 
 surety simply or is also a co-mortgagor: Also, nota bene, 
 neither foreclosure nor sale may (under the exceptional 
 circumstances of some particular suretyship) be avail- 
 able as against the surety's estate (e). 
 
 Where the principal debtor becomes a bankrupt, both On hank- 
 the creditor and the surety have, on principle, a right of p^P^c^ia/ 
 proof in the bankruptcy, — the creditor, in respect of his debtor,— proof 
 
 QigSiUlStf lUS 
 
 («) Mayheiv v. Cric/cett, 2 Swanst. 185. 
 
 {x) Berridge v. Berridge, 44 Ch. Div. 168. 
 
 (y) Strange v. Fooks, 4 Giff. 408. 
 
 (z) Wtilff^. Jay, L. R. 7 Q. B. 758. 
 
 (a) Taylor t. Bank of New South Waks, 11 App. Ca. 596. 
 
 \b) West of England Insurance v. Isaacs, 189rt, 2 Q. B. 377. 
 
 (c) Pp. 228, 229. 
 {d) Pp. 282, 283 et leq. 
 
 .(«) Stamford Bank v. Ball, 4 De G. F. & J. 310. 
 
446 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 estate, ty debt; and the surety, in respect of his liability: But, in 
 tysMety"'^ practice, the following distinction is to be taken, namely: 
 
 (1) Where the surety is a surety for the whole debt, the 
 creditor (and he only) shall prove, — and shall take to 
 himself, and also keep for himself, the dividends received 
 on both proofs (/), — ^proceeding afterwards against tlie 
 surety in respect of the deficiency ; but 
 
 (2) Where the surety is a surety for only part of the 
 deht, amd he has paid that part to the principal creditor, — 
 Then he (the surety) may prove (in respect of that part); 
 and the creditor also may prove, in respect of his vs^hole 
 original debt (and not merely for the residue after deduct- 
 ing the part paid by the surety (g)), — Each keeping to 
 himself (in this case) the dividends received by him (h), 
 but the principal creditor not, of course, receiving more 
 than 20s. in the £ altogether: But, unless the surety has 
 first paid his part, he cannot prove, — The law not per- 
 mitting a " double proof " 'in respect of the same debt {i}, 
 — but only in respect of distinct debts (/c) . 
 
 Time,— when Where the principal debtor has been discharged by the 
 ofthe^vie^^ Statute of Limitations, the surety may or may not have 
 and when not. been also discharged thereby, — according as the bar by 
 time extinguishes the debt itself, or only bars the remedy 
 for it: But the payment of interest by the principal 
 debtor will keep alive the debt against the surety also, — 
 as will also any part-payment of the principal of the 
 debt (I): That is to say,— The 19 & 20 Vict. c. 97, s. 14 
 (as regards co-contractors and co-debtors), is inapplicable 
 to the relation of creditor, principal debtor, and surety, 
 these two latter not being co-debtors within the meaning 
 of that Act and section (m), — So that a part -payment 
 by the principal debtor, although it would not operate 
 (as against any co-debtor or co-debtors) as an acknow- 
 ledgment to revive the debt, will (as against the surety) 
 
 (/) Ellis Y. Emmanuel, 1 Exch. Div. 157. 
 
 (g) In re Sass, 1896, 2 Q. B. 12. 
 
 (A) ffobson V. .Bass, L. R. 6 Ch. App. 792. 
 
 (t) In re Oriental ISmik, L. R. 7 Ch. App. 99. 
 
 (A) He Parkers, IM Q. B. D. 84. 
 
 (7) Allison V. Frisbt/, 43 Cb. D. 106. 
 
 (m) Lindsell v. Phillips, 30 Ch. D., on pp. 295, 296. 
 
SURETYSHIP . 447 
 
 operate as euoh an acknowledgment: But where a Account of 
 customer's account at the bank was guaranteed by a P"''^'^'^ "^j^. 
 surety, and more than six years had run since the last for, discharge 
 advance, and there had been no actual payments since, of- 
 hut only settlements in account (charging interest and 
 commission in the usual way), — The surety was held to 
 have been discharged, as regards the principal of the sums 
 advanced (w), — and to remain liable only as regards the 
 interest and commission .accrued within the six years. 
 
 {«) Parr's Bank t. Tates, 1898, 2 Q. B. 460. 
 
448 
 
 CHAPTEE yi. 
 
 PARTNERSHIP . 
 
 Jurisdiction 
 iu equity. 
 
 Specific per- 
 formance of 
 partnership 
 agreement, — 
 when and 
 when not 
 decreed. 
 
 Injunotion,- 
 when and 
 when not 
 granted. 
 
 The jurisdiction of equity in partnership matters, 
 although nominally concurrent, was practically exclusive, 
 — a quasi-fiduciary relation existing between partners; 
 and the Judicature Act, 1873 (s. 34), accordingly, 
 assigned to the Chancery Division all partnership matters 
 involving either accounts or a dissolution. The whole 
 law of partnership has been declared by the Partnership 
 Act, 1890 (53 & 54 Vict. c. 39),— but the rules of equity 
 (and indeed of the oomraon law generally) continue in 
 foroe (s. 46). 
 
 A Court of Equity will, occasionally, decree the specific 
 performance of a contract to enter into a partnership, — 
 That ifi to say, where the contract is for a fixed and 
 definite period of time (a), and there have been acts of 
 part performance {b) ; but the Court will not otherwise 
 decree the specific performance of the contract (c) : Also, 
 where A. and B. agree to be partners for a term certain, 
 — the term not to be determinable by the death of either ; 
 and A. dies during the term; and A.'s executors refuse 
 to continue the partnership, — The Court will not compel 
 them to do so; but (for breach of their testator's con- 
 tract) they must pay the damages (if p-ny) which B. 
 sustains thereby {d) . 
 
 Equity will, however, decree specific performance of 
 particular clauses in the articles of an existing partner- 
 ship (e): And where, by a clause in the articles, the 
 
 (a) Buxtmi v. Lister, 3 Atk. 385. 
 
 \b) Scott V. Rayment, L. R. 7 Eq. 112. 
 
 (c) Hmy V. Birch, 9 Ves. 357. 
 
 (d) Downs V. Collins, 6 Ha. 418. 
 
 («) Marshall t. Golman, 2 J. & W. 266. 
 
PARTNERSHIP. 449 
 
 partners agree not to engage in any other business, equity- 
 will (by injunction) enforce such, a clause, — the interim 
 profits made by any partner in violation of the agreement 
 being usually decreed to belong to the partnership (/): 
 Also, the law is the same (as regards carrying on any 
 "rival" business), even where there is no such express 
 restrictive agreement (gr'), — a "rival" business being, of 
 course, one of similar character, and not one of a wholly 
 different character (A). And equity will also (by in- Belief by 
 junction) prevent such acts (on the part of any of the ™i^^u°"_ 
 partners) as either tend to the destruction of the partner- when and 
 ship property (i), or as tend to exclude any of the partners when not. 
 from the due exercise of their partnership rights (k) . 
 
 But equity will not interfere, either by injunction or Where an 
 otherwise, where the remedy at law is adequate: Also, tfrafe?to 
 since the Common Law Procedure Act, 1854, — and more arbitration,— 
 particularly since the Arbitration Act, 1889, — equity has oeSings'j'very 
 been (and is) in the habit of remitting the parties to commonly 
 the arbitration a,s their self -chosen exclusive forum (?), gromidof"^ 
 — Provided always that the question in difference is agreement to 
 within the agreement for reference (?h), and the whole '^ ^^' 
 dispute may be settled in the arbitration, and not other- 
 wise (w), and not so as to split up the ground of action (o). 
 And the Court justifies its action in enforcing these refer- 
 ences, under the express words contained in s. 4 of the 
 Act of 1889 (which re-enacts s. 11 of the Common Law 
 Procedure Act, 1854), namely, — That whenever the 
 parties to any deed or instrument in writing agree to refer 
 their disputes, and any one or more of them nevertheless 
 commences an action (relative to such disputes), the other 
 parties (being defendants to the action) may, — before 
 pleading thereto (p), or taking any other step in the 
 
 (/) S'lmervilkM. MacJcaij, 16 Vea. 382. 
 
 (g) 5.3 & 54 Vict. c. 39, e. 30. 
 
 (h) Bean v. MSowell, 8 Ch. D. 345. 
 
 (i) Marshall v. Wahon, 26 Beav. 601. 
 
 (k) Walker v. Mottram, 19 Ch. Div. 355. 
 
 {I) Wilksford v. Watson, L. E,. 14 Eq. 572. 
 
 ()«) Martin's case, 17 Q. B, D. 609. 
 
 (n) Barnes^. Youngs, 1898, 1 Ch. 414. 
 
 (o) Ives V. Willans, 1894, 2 Ch. 478. 
 
 (p) Bartlett v. Ford's Hotel, 1896, A. C. 1. 
 
 G G 
 
450 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 action (g), — apply for a stay of the proceedings, on tlio 
 ground of the agreement to refer; and the Court, " upon 
 being satisfied that no sufficient reason exists (r) why 
 the matter in dispute ought not to be referred," may 
 (in its judicial discretion (s)) make an order staying the 
 proceedings, provided the applicants have always been 
 (and are) ready and willing to join and concur in all 
 matters necessary or proper for causing the dispute to be 
 decided by arbitration. However, the order to stay will 
 first appoint a receiver and manager (wherever the busi- 
 ness appears to require that(i)), — and will also (usually) 
 reserve liberty to apply: Under which liberty, the Court 
 may afterwards either give its direction to the arbitra- 
 tors (m), or make such other order (even an order revoking 
 the submission) as shall (in the circumstances) be pro- 
 per (x): Also, in and by the award, the arbitrators or 
 umpire may award even, that the partnership) shall be 
 dissolved (?/■),■ — although either party may apply to the 
 Court, to remit the award or to set it aside, if there is any 
 sufficient ground for that; but it is, usually, very difficult, 
 — and (in the absence of wmla fides) almost impossible, — to 
 get the Court to leave the action to simply proceed (z) . 
 
 Partnership,— A partnership is constituted by agreement (express or 
 cons 1 u ono . j^jjjpijg,^^ . ^^j^^ there is scarcely any variety of term (not 
 being, of course, illegal («)), which may not be included 
 in the agreement; and a partner may (by the agreement) 
 have the right of nominating his successor in the part- 
 nership (b). Also, persons become partners, if they agree 
 to go shares in the profits and losses of the business (c), — 
 although merely sharing in the profits (without being at 
 the same time liable also for the losses, and without being 
 invested with the capacity of agent for self and co-part- 
 
 (?) Sichardson v. Le Maitre, 1903, 2 Ch. 222. 
 
 (V) Freeman's case, 1911, 1 K. B. 783. 
 
 (s) Eenshaw v. Queen Anne's Mansions, 1897, 1 Q. B. 662. 
 
 (t) Pini T. Roneonni, 1892, 1 Ch. 633. 
 
 (»() Hart V. Duke, 32 L. J. Q. B. 55. 
 
 (x) Jackson v. Barry It. C, 1893, 1 Ch. 238. 
 
 (y), Fawdrepv. Simpson, 1896, 1 Ch. 166. 
 
 (z) Cox V. SuUhinson, 1910, 1 Ch. 573. 
 
 (a) Nash v. Ash, 1 Eden, 378 (citing the highwayman's case). 
 
 (b) Bi/rne v. Jieid, 1902, 2 Ch. 735. 
 
 (c) Walker v. Sirsch, 27 Ch. Div. 460. 
 
PARTNERSHIP. 451 
 
 nor (d)), will not constitute a man a partner. Also, a 
 mere part-ownership is not a partnership, — whether the 
 profits (of the common propertj^) are shared between the 
 part-owners or not (e) . Also, in the absenoe of any stipu- Partnership,— 
 lation to the contrary, the shares of the partners in the *«'^"3of. 
 capital (and in the profits and losses) are equal (/) ; and 
 where (in the partnership agreement between the plaintiff 
 and the defendant) it had been arranged, that a certain 
 cotton mill of the plaintiff's (taken at its then value) 
 should be deemed the plaintiff's capital in the business, 
 and that £x cash should be the defendant's capital 
 therein; and, upon a winding up of the partnership, the 
 mill was (unexpectedly) found to have then become of 
 treble its original value, — The Court said, that the 
 excess in the value was divisible as "profit" (g), — just 
 as, per contra, any unexpected "loss" would have had 
 to be shared (h) . Also, if there are three partners, and 
 the partnership sustains a heavy loss, and one of the three 
 goes bankrupt, — The loss falls on the other two, so far 
 as the bankrupt's estate is insufficient to bear the bank- 
 rupt's share of it (^) . And lastly, where a partnership 
 was originally for an agreed term, and it continues after 
 the term, — It becomes a partnership at will, upon all 
 such of the old terms as are applicable to a partnership 
 at will (/<;), — including, it may (l) or may not (to) be, 
 the term under which an option of purchase is given to 
 either- partner: 
 
 A partnership may be dissolved in divers ways: — PartneTsh;i>,— 
 
 (1) Firstly, By Operation of Law,— That is to say, Jj^'^"*),""^*^; 
 by the death of one of the partners (unless there be an tionof ?awl*" 
 express stipulation to the contrary) ; or by the bankruptcy 
 of one of the partners, — or, semble, by his conviction 
 for felony. But an assignment by one of the partners, 
 
 (d) Cox V. Hickman, & H. L. Ca. 268. 
 
 [e) 53 & 54 Viot. c. 39, s. 2. 
 (/) 53 & 54 Vict. 0. 39, 8. 24. 
 
 (g) Robinson v. Ashton, L. R. 20 Eq. 25. 
 (A) Moore v. Euight, 1891, 1 Ch. 547. 
 \i) Lowe T. Dixon, 16 Q. B. D. 455. 
 (A) King v. Chuck, 17 Beav. 326. 
 [l] Daw T. Herring, 1892, 1 Ch. 284. 
 (»») Clark V. Zeach, 1 De G. J. & S. 409. 
 
 G g2 
 
452 
 
 THE ORIGINALLY CONCUEEENT JDEISDICTION. 
 
 ^(2) By agree- 
 ment of the 
 parties. 
 
 (3) By decree 
 of Court, — 
 on sufficient 
 grounds. 
 
 although it used to operate to determine the partner- 
 ship (w), will not now so operate (o). 
 
 (2) Secondly, By'Mutual Agreement, — That is to say, 
 if all the partners agree to dissolve; and by virtue of a 
 clause in the articles, an effective notice of di8S.olutioii 
 may also be given by one or more of the partners without 
 the consent of all (p), — In which latter case, the Court 
 will (where necessary), compel the other partners to sign 
 a notice of dissolution for the Gazette (q): Also, any part- 
 nership, the duration of which is indefinite, may (by 
 notice) be dissolved by any partner at any moment he 
 pleases, — provided lOnly he be acting honestly in giving the 
 notice (r); but the Court would (in such a case) restrain 
 an immediate dissolution of the partnership, if irreparable 
 mischief might ensue therefrom (s) : Also, a partnership 
 may, without any notice to dissolve it, merely expire by the 
 accomplishment of the object for which it was established; 
 and {e.g.) a mining partnership (not uncommonly) 
 endures only during the term of the mineral lease (i). 
 
 (3) Thirdly, By Decree in Equity, — And as regards 
 this mode of dissolution, it has been enacted (by the Part- 
 nership Act, 1890, s. 35), that the Court may dissolve the 
 partnership, wherever it is ^' just andequitahle" to do so: 
 
 Also, under that Act (and even apart from that Act), 
 the Court will decree a dissolution, on the divers specific 
 grounds following, that is to say: — 
 
 (1) Where the partnershijD has originated in fraud or 
 oppression (m) ; 
 
 (2) Where one partner grossly misco'nducts himself in 
 reference to the partnership (acting in persistent breach 
 of the partnership articles (x)); 
 
 (3) Where one of the partners persists in carrying on 
 
 'n) Heath v. Sansom, 4 B. & Ad. 172. 
 
 o) Garwood v. Paynter, 1903, 1 Ch. 236. 
 
 p) Sally. Bait, 12 Beav. 414. 
 
 q) Eexilrij v. Turner, 32 Ch. Div. 335. 
 
 V) Neilson v. Mossend Iron Co., 11 App. Ca. 298. 
 
 s) Lery v. Walker, 10 Ch. Biv. 436. 
 
 t) Burden \. Barkus, 4 De G. P. & J. 42. 
 
 u) 63 & 54 Viot. 0. 39, s. 41. 
 
 'x) 53 & 54 Vict. 0. 39, s. 35. 
 
PARTNERSHIP. . 463 
 
 tlie business in a manner totally different from that agreed 
 on(?y); 
 
 (4) Where a partner, who ought to attend personally to 
 the business, permanently absents himself from it, or 
 beoomes so engrossed in his own private affairs as to be 
 unable to attend to it (2) ; and 
 
 (5) Where the disagreements between the partners are 
 so great as to render it impossible to carry on the busi- 
 ness, — all mutual donfidence being destroyed (a). 
 
 In the ease of a dissolution by the Court, the dissolution, 
 usually takes effect from the date of the decree (&); but 
 if the dissolution is on the ground firstly above mentioned, 
 the dissolution will be as from the commencement of the 
 partnership (c) . 
 
 Where la partner, who is required to contribute his per- Dissolution on 
 sonal skill to the business, becomes insane, equity may msamty of ° 
 on ;the ground of the insanity dissolve the partnership (d) ; tlie partner _ 
 or the Court will restrain the insane partner from inter- indispensable;- 
 fering in the partnership business (e). 
 
 Where a dissolution has taken place, an account will be Account, only- 
 decreed, and (if necessary) a receiver appointed; but an tlon — oi°on'a< 
 account will not be decreed, or a receiver appointed, unless ease for a 
 with the view to a dissolution (/), — ^excepting that where 
 the conduct of a partner has been such as would entitle 
 bis co-partner to a dissolution, an account (up to the time 
 of commencing the action) may be decreed without a dis- 
 solution {g) . 
 
 Upon a dissolution, the Court will (in a proper case) Terms of 
 order the defendants to repay to the plaintiff a due pro- ^^to^^etumTf 
 
 premium ;. 
 
 (y) Waters v. Taylor, 2 V. & B. 299. 
 («) Smith Y. Mules, 9 Hare, 656. 
 («) Watney v. Wells, 30 Beav. 56. 
 
 (b) Lyon V. Tweddell, 17 Ch. Div. 529. 
 
 (c) Sawlins v. Wickham, 1 Giff. 355. 
 
 (d) Rowlands v. Evans, 30 Beav. 302. 
 
 \e) J T. 8 , 1894, 3 Ch. 72. 
 
 (/) Taylor v. Neate, 39 Ch. Div. 538. 
 (j) Hairthorne v. Weston, 3 Hare, 387. 
 
■|54 THE OEIGINALLY CONCURRENT JURISDICTION. 
 
 portion of any premium paid by him as the price of his 
 having beoom© a partner {h) ; but if that relief is desired, 
 a iease must b© made for it at the trial of the action (i), — 
 and Tiot (except in very exceptional cases) afteTwards Qc). 
 
 ana generally : Iq settling th© acoounts between the partners on a dis- 
 solution, the provisions in that behalf contained in the 
 partnership articles must, generally, be oberved, — includ- 
 ing the provision (if any) which makes the " last signed " 
 account conclusive (Z), and including the option-clause (if 
 any) which gives to either partner the right to purchase 
 the share or shares of the other partner or partners (m) : 
 And, subject to th© relevant provisions (if any) contained 
 in the partnership articles, the provisions applicable upon 
 the dissolution, ar© those contained in s. 44 of the Part- 
 nership Act, 1890, — that is to say: Firstly, the losses of 
 the partnership (including losses and deficiencies pf 
 capital) are to be paid or made good, — Sail., first out of 
 profits, next out of capital, and lastly by th© partners indi- 
 vidually according to their respective proportions of the 
 profits; And Secondly, th© asisets (including the sums, if 
 any, contributed by th© partners to make good the losses 
 aforesaid) are to be applied: — 
 
 (1) In paying the outside debts and liabilities of the 
 partnership ; 
 
 (2) In paying all advances made by the partnerg 
 beyond their capital; and 
 
 (3) In paying out the capital of th© partners; 
 
 And after all such payments made, th© ultimate residue 
 (if any) will be divided among the partners as profits in 
 the proportions in which the profits are divisible (n) : But, 
 if the dissolution is proceeding under an order of the 
 Court, the payment of the costs of the action will be pro- 
 vided for before repayment of their capitals to the part- 
 
 (A) BelfieUv. Bourne, 1894, 1 Ch. 521. 
 (i) Wihon v. Johmtmie, L. R. 16 Eq. 606. 
 [h) Edmonds v. Robinson, 29 Ch. Div. 170. 
 [l) Sunter v. Sowling, 1893, 1 Ch. 391. 
 (m) Watts V. Driscoll, 1901, 1 Ch. 294. 
 (») Gm-ner v. Murray, 1904, 1 Ch. 67. 
 
PARTNERSHIP. 455 
 
 ners, these ooets falling on the respective partners in pro- 
 portion to their shares in the partnership (o). 
 
 A partnership, expiring on death, effluxion of time, or Parser 
 bankruptcy, does not really expire until the partnership' ^yantegeout 
 affairs have been wound up (p): And in the winding up, of the partner- 
 the partner or partners who continue the business are accountebleto 
 accountable to the others, — not merely for the ordinary other partners, 
 profits, but for all (if any) the advantages accruing from 
 the business (g) ; and, if there are no such profits, the 
 partner or partners who shall have so continued the busi- 
 ness will, in general, have no remuneration for his or their 
 trouble (r), — but only their just expenditure (s). 
 
 There is no fiduciary relation between the surviving Eepresenta- 
 partner and the representatives of a deceased partner, — ^™^°*j 
 so that the rights of the representatives being mere legal partner have 
 rights, the Statutes of Limitation will be applicable (i), no lien. 
 ■ — Excepting that these statutes, in a case of fraud, run 
 only from the date of the discovery of the fraud (u). 
 Also, the representative of a deceased partner have no 
 lien on the partnership estate, — Which estate accrues, 
 therefore, in its entirety (both at law and in equity) to 
 the surviving partner or partners, — So that the surviving 
 partner or partners may mortgage the partnership assets, 
 and either for a present partnership advance (x), or for 
 a jjast partnership debt {y), and so as to give the mort- 
 gage priority over the rights of the deceased partner's 
 estate (z) . 
 
 But bankruptcy is unlike death in the^e particulars, — Valuation in 
 the bankrupt partner's share vesting in the trustee of the ^™en*a^d*' 
 bankruptcy, — and that notwithstanding any clause to the when not? 
 contrary in the articles of partnership (a) : It is, how- 
 
 (o) Soss V. White, 1894, 3 Ch. 326. 
 ( p) Crawshay v. Collins, 2 Russ. 344. 
 \q] Clements v. Ball, 2 De a. & J. 173. 
 (r) AUridge v. Aldridge, 1894, 2 Ch. 97. 
 (s) Burdon v. Barkus, 4 De G. P. & J. 42. 
 (i!) Enox V. Gye, L. R. 5 H. L. 656. 
 («) Betjeinann v. Betjemann, 1895, 2 Ch. 474. 
 \x) Buoi art v. Dresser, 4 D. M. & G. 542. 
 {y) Bradford Bank v. Cure, 31 Ch. Div. 324. 
 (z) Bourne v. Bourne, 1906, 2 Ch. 427. 
 (a) Collins v. Barker, 1893, 1 Ch. 678. 
 
*56 THE ORIGINALLY CONCUEEENT JURISDICTION. 
 
 ever, lawful, semble, to pay to the trustee in the bank- 
 ruptcy the bankrupt's share at a valuation (b), — just as 
 (in the case of a private limited company) the compul- 
 sory purchase of that share at a fixed price would be 
 lawful (c) : And otherwise a sale (and not a valuation) 
 must be made (d) . 
 
 Judgment As regards realising- out of the partnership assets a 
 
 for, onpiSt?'^ judgment obtained against an individual partner, in lieu 
 ler's share, of execution issuing on such judgment, the Court may 
 of suciToharge! '^ow make an order charging the partner's share with the 
 separate judgment debt and with interest thereon; and 
 the Court may also appoint a receiver towards the reali- 
 sation of the charge, — Every such charge having the same 
 effect as a voluntary charge given by the judgment 
 debtor (e), and being subject to the solicitor's lien (if 
 any (/)), and to the state of the accounts between the 
 judgment debtor and his co-partners (gr). 
 
 In equity, land The share of a deceased partner is his proportion of 
 
 asS^f t^ the partnership assets after all the debts are paid, and it 
 
 partnership is is only that which piasses to his legal representatives(fe), 
 
 money. — ^^ ^^ ^^^ purchaser (or mortgagee) of the share(«) : And 
 
 inasmuch as a sale is necessary in order to ascertain the 
 
 share, therefore (in equity) the share must (as between 
 
 the real and personal representatives of the deceased 
 
 partner) be deemed to be personal (and not real) 
 
 estate (/c) : And not only are lands purchased out of 
 
 partnership funds for partnership purposes treated in 
 
 equity as personalty, but the rule is the same, even where 
 
 the lands have been acquired by devise, — provided the 
 
 devised lands have "been involved in the business" (l). 
 
 But, under special circumstances, the lands may still 
 
 remain real estate of the deceased partner (ni), — and (in 
 
 (S) Whitmore t. Mason, 2 J. & H. 204. 
 
 (c) Borland's Trustee y. Steel Brothers, 1901, 1 Ch. 279. 
 
 {d) Burdon v. Barkus, 4 De G. F. & J. 42. 
 
 (e) Broton Janson ^- Co. v. Hutchinson, 1895, 1 Q. B. 736. 
 
 (/) Ridd T. Thome, 1902, 2 Ch. 344. 
 
 (g) Garwood M. Paynter, 1903, 1 Ch. 236. 
 
 (/») Noyes v. Crawley, 10 Ch. D. 31. 
 
 (j) Sodson v. Downey, 1901, 2 Ch. 620. 
 
 [Ic] Bavies v. Savies, 1894, 1 Ch. 393. 
 
 (l) Waterer v. Waierer, L. R. 15 Eq. 402. 
 
 {m) Balmain v. Shore, 9 Ves. 500. 
 
PARTNERSHIP. 457 
 
 favour of a specific devisee) will, usually, so remain, — at 
 least, when the partnership is solvent (w). 
 
 As regards the partuerehip debts, — being debts the Creditors may 
 
 liability for which accrued before the death of the oidec^seof 
 
 deceased partner(o), but not otherwise(p): — The creditors go\|ainsr 
 
 may either pursue their legal remedies against the sur- survivor or 
 
 vivors, or (at their option) resort in equity to the estate estate of 
 
 of the deceased (g) ; but the estate of the deceased partner deceased : 
 will be discharged by any long delay in proceeding 
 against it (r) . 
 
 The liability of partners, although sometimes called a (i) Separate 
 
 joint and several liability (in respect of every matter creditors being 
 
 falling within the scope of the business), differs in im- separate estate 
 
 portant particulars from a ioint and several liability (s), i^rforepartner- 
 
 mii-i iji II o 1 ^'"■V creditors. 
 
 — inat is to say, although the separate estate ol the 
 deceased partner is liable, yet it is liable only as for a 
 joint debt: Consequently, the separate creditors of the 
 deceased partner are entitled to be paid their debts (in 
 full), before the creditors of the partnership can claim' 
 anything, from his separate estate (i); and if a partner- 
 ship creditor should (as he may) institute proceedings 
 for the administration of the estate of the deceased 
 partner, and (his debt being a joint debt only) there is a 
 constat at the hearing, that the separate estate will leave 
 no surplus (after payment of the separate creditors), his 
 action will be dismissed (u). Also, a creditor of the 
 partnership, who is indebted to the deceased partner 
 individually, cannot (in an administration of the deceased 
 partner's estate) set off his separate debt against the joint 
 debt due to him (x) : But a joint debt, which has been 
 contracted in fraud of any of the partners, may (at the 
 option of the creditor) be treated either as a joint or as a 
 separate debt (y) ; and such a debt may also (under the 
 
 n) BrettellY. SuUand, 1907, 2 Ch. 88. 
 o) Court T. Berlin, 1897, 2 Q. B. 396. 
 p) Bagel v. Miller, 1903, 2 K. B. 212. 
 q) Matheson t. Ludwig, 1896, 2 Ch. 836. 
 V) Way T. Barrett, 5 Ha. 55. 
 s) Kendall v. Samilton, i App. Ca. 538. 
 t) Hx parte Wilson, 3 M. D. & De &. 57. 
 u) Edwards v. Barnard, 32 Ch. Div. 447. 
 x) Stephenton v. Chisrvell, 3 Ves. 566. 
 y) In re Davidson, 13 Q. B. D. 50. 
 
458 
 
 THE OKIGINALLY CONCUEKENT JURISDICTION. 
 
 special circumstances of the case) be and continue a 
 separate debt only, without any option in the creditor (^:) . 
 But debts arising on " distinct contracts " may be en- 
 titled to a sort of " double proof " (a), — i.e., against both 
 the joint and the separate estates concurrently. 
 
 (2) Partner- The joint Creditors have, of course, a right to be first 
 
 b^Sg p^d°out ^^^^ ^^'^'^^^ ^^^}^ "^"^ °^ ^^^ partnership funds (before the 
 of partnership Separate creditors receive anything), — and that, even 
 S^arlte*"''^ although the partnership should be ostensible only (6); 
 creditors. and this preference is commonly stated to result from 
 
 the equity of the co-partners over the ivhole fund (c) . 
 But the executors of a deceased co-partner (who was also 
 a creditor of the firm) cannot, in general, prove in com- 
 petition with the outside joint creditors (d), — but they 
 come in next after these outside creditors (e) : Also, persons 
 who (without becoming partners) lend money to the 
 partnership, upon an agreement to receive a share of the 
 profits in lieu of interest on the loan (/), — or who are 
 entitled to receive a share of the profits, in respect of their 
 having sold the goodwill of the business to the partner- 
 ship (g), — are (in the case of the bankruptcy or insolvency 
 of the partnership) postponed to the other partnership 
 creditors. 
 
 Goodwill, — 
 an asset. 
 
 Goodwill, — 
 assignment of, 
 when neces- 
 sary. 
 
 The goodwill of the business is, in general, an asset of 
 the partnership (h), — unless it is a merely personal good- 
 will (i) ; and, accordingly, on the retirement of a partner, 
 the assignment which he executes should expressly ex- 
 tend to assigning the goodwill, — so as to pass the right 
 to use the name of the retiring partner in the partnership 
 style (/c) ; and should contain also a clause restraining 
 the retiring partner from starting any rival business (I). 
 
 (s) British Homes v. Paterson, 1902, 2 Ch. 404. 
 («) In re Parkers, 19 Q. B. D. 84. 
 
 (b) Hx parte Sly the, 16 Ch. Div. 620. 
 
 (c) Laeey v. Sill, 4 Ch. Div- 537. 
 
 (d) Sx parte Andrews, 25 Ch. Div. 505. 
 («) Nanson v. Gordon, 1 App. Oa. 196. 
 (/) In re Mason, 1899, 1 Q. B. 810. 
 \g) 53 & 54 Vict. c. 39, s. 3. 
 
 [h) Vernon v. Eallam, 34 Ch. Div. 749. 
 
 (i) Cooper v. Metropolitan Board of Works, 25 Ch. Div. 472. 
 
 (k) Thorneloe v. Hill, 1894, 1 Ch. 569. 
 
 [I) Churion v. Douglas, 1 John. 104. 
 
PARTNERSHIP. 459 
 
 t 
 
 And, as regards goodwill generally, it is now well Goodwill,— 
 settled, that (in the absence of some express provision survival of, 
 to the contrary) the vendor of it may set up a rival of partnership, 
 business (m), — but not bo as to solicit or canvass the term,— 
 customers of the old business (n), — Which rule applies 
 also, where (under a special provision in that behalf con- 
 tained in the partnership articles) the goodwill belongs 
 (on the expiration of the partnership) to either of the 
 partners exclusively (o) : Also, although, upon the death of and upon 
 a partner, where the partnership articles provide that the ^^^^ °* 
 business shall be carried on by the surviving partner or 
 partners, the estate of the deceased partner is not en- 
 titled to receive anything from the partnership in respect 
 of the goodwill (p'), — Scil., specifically; still the goodwill 
 is an asset of the partnership, — and is to be valued as 
 such (q) . 
 
 By the Limited Partnerships Act, 1907.(7 Edw. VII. Limited part- 
 c. 24), on and after the 1st January, 1908, any number of constitation 
 persons (not exceeding 10 for banks, or 20 for other of; also 
 trades) may enter into a "limited partnership," — one or ^"^ '®^°' 
 more of them (called the " general partners ") being liable 
 for all the partnership debts and liabilities in the way 
 usual at present, and the others of them (called the 
 " limited partners ") teing liable therefor to the extent 
 only of their capital actually in the business (s. 4): But 
 the partnership must (for this purpose) be registered 
 (s. 6), with the registrar of companies (s. 15), — the divers 
 specified particulars (ss. 8, 9) being sent to him; and he 
 issues his certificate of the registration (s. 13): Also, 
 a general partner may be converted into a limited partner, 
 — the due advertisement of that alteration being first 
 notified in the Gazette (s. 10): But a limited partner 
 may not withdraw his capital, or any part thereof (s. 4, 
 sub-s. 3); nor may he interfere in the management of 
 the business (s. 6, sub-s. 1); but he may (with the consent 
 of the general partners) assign his share (s. 6, sub-s. 5), 
 ■ — and the partnership will not be dissolved by that (s. 6, 
 
 (»») Cruttwell V. Lye, 17 Ves. 335. 
 
 («) Trego v. Sunt, 1896, A. C. 7. 
 
 (o) Jennings v. Jennings, 1898, 1 Ch. 378. 
 
 [p) Bunter v. Dowling, 1895, 2 Ch. 223. 
 
 (?) Sill V. Fearis, 1905, 1 Ch. 466. 
 
460 : THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 sub-s. 5), — nor by his death, lunacy, or bankruptcy (s. 6, 
 sub-s. 2): And subject to the distinctions above specified, 
 a limited partnership is like any other partnership (s. 7), 
 — Excepting that it may be wound up, compulsorily, 
 under the Companies Act, 1908 (r), and in acoordanc© 
 with the Limited Partnerships (Winding up) Kules, 
 1909 (s). 
 
 When a Apart altogether from the Limited Partnerships Act^ 
 
 a partner,-' ^^^'^' ^^^^'^ ^^J ^^ * ^^^^ °^ limited partnership: For 
 
 save towards example, a father and son may trade as partners (so as 
 
 third:persons ? (.(j jjg liable as such to the outside world), — and yet inier se 
 
 may not be partners at all, or entitled or liable as such (t). 
 
 ()■) 8 Edw. VII. 0. 69, 8. 267, 
 
 (s) In re Bughes J Co., 1911, 1 Ch. 342. 
 
 [t) Zaddiffe v. Rushworth, 33 Beav. 484. 
 
461 
 
 CHAPTER VII. 
 
 ACCOUNT. 
 
 The action of ^account lay at the common law, in the Account, 
 case of bailiffs, receivers, and the like (including guardians i^^°^d in^ 
 in socage (a)); and by the law merchant, the action also equity, 
 lay between merchant and merchant (fe); and the juris- 
 diction in account at law and in equity is now co-ex- 
 tensive (c). 
 
 (1) Equity entertained actions for an account, where (i) Principal 
 there existed a fiduciary relation between the parties, — !?subiectfto*' 
 For example, in favour of a principal against his the Statute of 
 agent (d) ; and the agent was required to account also Lmutations. 
 for all the secret profits he might have made, — the law 
 of the Court having been inexorable in that particular (e) : 
 But an agent was entitled to plead the Statutes of Limita- 
 tion in his defence (/), — Soil., in the absence of any ex- 
 press trust (g) . Equity would also decree an account (a) Patentee 
 against the infringer of a patent, — on the ground that f|f™* 
 the patentee might adopt the acts of the infringer as the 
 acts of his agent, — and in such a suit, he was required 
 to elect between an account and damages (h): And the 
 same rules were applicable in the case of tort-feasors 
 generally, — the injured party being free to waive the tort, 
 and to proceed for the profits made (i), excepting where 
 the tort was a public wrong (fc) . Also, the assignee of (b) Assignee 
 a patent might sue a licensee of his assignor for an yf^"|e. 
 account (?), — Because, generally, a bailor may have an 
 account (against his bailee) of any moneys received by 
 
 (a) Co. Litt. 90 S; 3 & 4 Anne, c. 16. 
 
 {!)) Co. Litt. 172 a; 11 Eep. 89. 
 
 («) Sow V. Earl Wintertm, 1896, 2 Ch. 626, a^t p. 639. 
 
 {d) Beaumont v. Boulthee, 3 Ves. 485. 
 
 («) Parker v. McKenna, L. K. 10 Ch. App. 96. 
 
 (/) Friend Y. Young, 1896, 2 Ch. 421. 
 
 (g) Burdick v. Garrick, L. R. 5 Ch. App. 233. 
 
 (A) Neilson v. Belts, L. R. 5 H. L. 1. 
 
 (i) Zeeds (Duke) v. Amhurst, 2 Phil. 117., 
 
 [k] Marsh v. Keating, 2 CI. & F. 260. 
 
 ij) Bergmann v. M'MiUan, 17 Ch. Div. 423. 
 
462 
 
 THE OEIGINALLY CONCURRENT JURISDICTION. 
 
 (2) Cestui que 
 trust against 
 trustee. 
 
 (2a) Mort- 
 gagor against 
 mortgagee. 
 
 (3) Cases of 
 
 mutual 
 
 accounts 
 
 between 
 
 plaintiff and 
 
 defendant. 
 
 (4) Account in 
 case of waste, 
 — incident to 
 injunction. 
 
 the bailee as damages for a tort done to the bailee's pos- 
 session, — ^^even where the tort is one, in respect of the 
 commission of which the bailee would be in no way 
 personally liable to the bailor {m). 
 
 (2) Equity also exercised the jurisdiction in account, 
 as between cestids que trustent and their trustees, and 
 mortgagors and their mortgagees; and it was (and is) 
 chiefly in these two last-mentioned relations that the 
 accounts were (and are) taken in equity : And, as regards 
 mortgagees, it is to be remembered, that the power of 
 the mortgagee to sell implies a power in him to give the 
 due receipts for the purchase-moneys (w), — ^accounting 
 therefor to the mortgagor, excepting where the selling 
 mortgagee has already (at the date of the sale) acquired 
 the mortgaged property by adverse possession (o). 
 
 (3) Equity also exercised the jurisdiction in account, 
 where there were mutual accounts between the plaintiff 
 and the defendant, — "mutual accounts" arising where 
 each of two parties had received and also paid on the- 
 other's account {p) . Also, any complication in the account 
 would, in general, and independently of other circum- 
 stances {q), have given jurisdiction to equity, — Although, 
 now, under the Judicature Acts and the Arbitration Act, 
 1889, matters of account of the most complicated 
 character may be (and usually are) referred to and taken 
 by an official or other referee. 
 
 (4) Equity also exercised the jurisdiction in account, 
 where the matter to which the account was incident was 
 wholly equitable, — for example, in the case of equitable 
 waste ; and it has been commonly stated, that (until the 
 Judicature Acts) equity had no jurisdiction to direct an 
 account of legal waste, excepting always where the 
 account was incident to other equitable relief properly 
 claimed in equity (r): But, after Lord Cairns' Act (21 
 & 22 Vict. c. 27), an account of damages (or of profits in 
 
 (m) The WinkJieU, 1902, P. 42. 
 
 (n) Balfour \. Welland, 16 Ves. 151. 
 
 (o) Johnson v. Mounsey, \\ Ch. D. 284. 
 
 [p] Phillips V. FkiUips, 9 Hare, 471. 
 
 (?) O'Connor v. Spaight, 1 Sell. & Lefr. 305. 
 
 (»•) Jesus College v. Bloom, 3 Atk. 262. 
 
ACCOUNT. 
 
 463 
 
 lieu of damages) became an almost invariable incident 
 to every injunction. 
 
 It is ordinarily a good bar to the claim for an account, P''^**(f|or an^ 
 that the parties have already in writing stated and settled account : 
 the account, and have struck the balance; but, if there (i) Settled 
 has been (in such stated and settled account) any mistake 
 accident or fraud, — whereby the balance is incorrect, — 
 equity will not suffer the account to be conclusive upon 
 the parties: Wherefore, equity will, in some cases, direct 
 the whole account to Jbe " opened," — i.e., taken de novo; 
 and in other cases, will allow the account to stand, with 
 liberty to the plaintiff to "surcharge and falsify" it: 
 And here it is to be menSoned, that the effect of the 
 liberty to surcharge and falsify is, to leave the account 
 in full force as a stated and settled account, except so 
 far as it can be successfully impugned by the opposing ' 
 party, — the showing an omission for which credit ought 
 to have been given being a surcharge, and the proving a 
 purported payment to have been wrongly inserted being 
 a falsification; and (as regards every item) the onus 
 probandi is on the party surcharging and falsifying (s) . 
 
 The Court is unwilling, after a long time has elapsed, ^o^q^eaoeucT'^ 
 to open a settled account, — except in cases of manifest 
 fraud {t), — and except as between a trustee and his cestui 
 que trust (including a solicitor and his client («)): Also, a 
 broker is (for this purpose) in a fiduciary relation to his 
 client (x), — although a banker (y) or an assurance 
 society (z) is not so. 
 
 The defence of time (purely and simply) is also a good (3) Bar of 
 defence, in general, to the action for an account, — the "^^' 
 limit being six years (under the 21 Jac. I. c. 16, s. 3) as 
 regards ordinary accounts (a), and being also six years 
 (under the 19 & 20 Viot. c. 97, s. 9) as regards accounts 
 between merchant and merchant (&). 
 
 («) Pitt V. CholmondeUy, 2 Ves. Sr. 565. 
 
 It) Banner v. Berridffe, 18 Ch. Div. 254. 
 
 (w) Cheese v. Keen, 1908, 1 Ch. 245. 
 
 (x) Bx parte Cooke, 4 Ch. Div. 123. 
 
 {?/) FoUy V. Bill, 1 Phill. 405. 
 
 (z) Webster Y. British Empire Assurance Co., 14 Ch. Div. 169. 
 
 (a) Friend V. Tmmg, 1897, 2 Ch. 421. 
 
 (i) Friend v. Tomig, su^ra. 
 
464 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 Accounts, 
 although not 
 taken in Kteral 
 accordance 
 with the 
 contract of the 
 parties, may 
 be settled 
 accounts not- 
 withstanding. 
 
 Account, — at 
 the suit of 
 one tenant 
 against his 
 co-tenant. 
 
 Account, — as 
 of a bailiil's 
 possession. 
 
 Accounts are often taken {e.g., between partners) with- 
 out any very strict compliance with the articles regulating, 
 the manner of taking the account; and the question then 
 arises, how far the account (although not stated in a 
 regular manner) is to be taken as a settled account, — and 
 binding accordingly in the absence of fraud : And it 
 appears, that the Court will hold the account (although 
 irregularly taken) to be a settled account, if it appears 
 that (under all the circumstances) the parties so intended, 
 — For, being sui jufis, they may validly agree to varia- 
 tions in the mode of taking the account (c) . 
 
 When land is held by several owners as tenants in 
 common, and one of them i* receiving the profits in ex- 
 clusion of the others {d), — or is alone (and exclusively) 
 working the mines within or under the land (e), — The 
 remedy of the, other or others (in either of these two 
 cases) is account and not trespass, — the remedy by eject- 
 ment not being, of course, available in the absence of any 
 ouster of title: Nor would the remedy by injunction be 
 proper in the general case, — although sometimes it might 
 be proper enough: And it is to be here noticed," that the 
 remedy by account (in these cases) was first given by 
 the statute 4 & 5 Anne, c. 16, s. 27,— the plaintiff charg- 
 ing the defendant (the co-tenant) as his (the plaintiff's) 
 bailiff, and waiving his tortious receipt of more than his 
 due share (/). 
 
 Infant's real 
 estate, — 
 case of : 
 
 The adverse possessor of the real estate of an infant is 
 also, in the general case {g), — but not invariably (h), — 
 chargeable as a bailiff, and not as a trespasser or adverse 
 possessor; and in the account against any such bailiff 
 as aforesaid, — whether in the case of co-tenancies, or in 
 the case of an infant's real estates, — all "just allow- 
 andes" are made to the defendant (t) . 
 
 («) Eolgate v. Shutt, 28 Ch. Div. 111. 
 
 [i) Jacobs V. Seward, L. R. 5 H. L. 464. 
 
 [e) Job V. Fotton, L. R. 20 Eq. 84. 
 
 (/) Sturton V. Richardson, 13 Mee. & "W. 17. 
 
 (V) Soibs V. Wade, 36 Ch. D. 553. 
 
 (/j) Growther v. Orowther, 23 Beav. 306. 
 
 (i) Kennedij v. Be Trafford, 1897, A. C. 180. 
 
466 
 
 CHAPTER VIII. 
 
 set-off; also, appropeiation of payments, — 
 
 AND of securities. 
 
 Section I. Set-Off. 
 
 It is in accordance witli natural equity that two cross Set-off,— at 
 demands or mutual debts should be sat off the one against *^' 
 the other, and that the difference only between the two 
 should be valid (a); but the common law required that the 
 mutual debts should (for this purpose) be mutual con- 
 nected debts (&), — and otherwise the respective creditors 
 were required to sue in independent actions; and the 
 " Statutes of Set-off " (c), whereby the common law right 
 of " set-off " was enlarged, were only applicable where 
 there was a bankruptcy. 
 
 On the other hand, equity, by virtue of its general and in equitj'- 
 jurisdiction, and quite apart from the Statutes of Set- 
 off, granted relief in the cise of unconnected mutual debts 
 where there was an ex's'ing debt due to B. from A., 
 AND B. had become indebted to A. in the expectation 
 that the new debt wouli be diseharged out of (or by 
 means of) the existing debt (d), — a principle which appears 
 to be applicable to a debt of which the defendant is the 
 assignee merely, and was not the original creditor (e) . 
 Also, generally, debts which had had a common origin 
 would, in equity, have been set off against each other (/). 
 
 But, even in equity, the mere existence of cross de- 
 mands was not (of itself) sufficient to give the right of 
 set-off (g), — unless the defendant showed some equitable 
 
 (a) Green v. Fanwr, 4 Bmit. 2220. 
 
 (41 Da'e v. So'Jet, 4 Burr. 2:33 ; Georff. v. Clagett, 7 T. R. 359. 
 
 (c) 4 Anne, c. 17; 2 Geo. IT. «. 22 ; 8 Geo. II. o. 24. 
 
 {d) Rnxburfihe V. Cox. 1 7 Ch. Div. o2f). 
 
 (f) Bi-wetiy. White, 19. 0. 2 K. B. fi)3. 
 
 (/) KeirfoiinoUand Stale v. Nen-f-mndlani B. C, 13 App. Oa. 199. 
 
 {g) Saicson v. Samuel, 1 Or. & Ph. Itil. 
 
 S. H II 
 
466 
 
 THE OKIGINALLY CONCURRENT JURISDICTION. 
 
 Set-off when 
 and when not 
 prevented by 
 some inter- 
 vening eqmty. 
 
 Solicitor's 
 lien, — how 
 affected f 
 
 ground for being protected against the full demand: For 
 example, the assignee of a chose in action taking subject 
 to the equities properly incident to the debt, took subject 
 to the right of set-off (h) . 
 
 Wherefore also, in equity, a set-off was prevented by 
 some intervening equity; and a shareholder (e.g.) in 
 a limited company, who was also a creditor of the 
 company, was not allowed (in a winding-up of the 
 company) to set off his debt against a call, the equity 
 of the general creditors preventing the set-off in such 
 a case (i) . But where the shareholder had for value 
 assigned his debt, and the assignee (Jc) (being a parti- 
 cular assignee (?)) gave the company notice of the assign- 
 ment, — There, as against the assignee, the company had 
 not, — and even a prior debenture-holder of the com- 
 pany {m) had not, — a right to set off a call made sub- 
 sequently to the notice (but only a call made previously 
 thereto (n)). And an assignee of the debt would occa- 
 sionally take free of the set-off altogether, — where {e.g.) 
 the debt was negotiable (o). Also, the occupation rent 
 with which a tenant in common in possession is charge- 
 able, — and which (on a partition) will be set off against 
 his share of the sale proceeds of the land, — cannot be so 
 set off as against his mortgagee (p) . But a solici- 
 tor's lien on costs will not, now, prevent the party 
 liable to pay the costs from setting-off against them 
 the amount of the debt recovered by him in the pro- 
 ceeding (q) : And generally, damages may be set off against 
 damages (r), and costs against costs notwithstanding the 
 lien (s), — S'cil., where all the costs have been incurred 
 in one and the same action or proceeding (i(), — and not 
 otherwise (u) . 
 
 (h) 
 (*) 
 
 (m) 
 («) 
 
 3) 
 (r) 
 
 (») 
 (<) 
 (») 
 
 Bankes v. Jarvis, 1903, 1 K. B. 549. 
 Siram Maxim Lamp case, 1903, 1 Ch. 70. 
 Christie v. Taunton, ^c. Co., 1893, 2 Ch. 175. 
 In re Brown and Gregory, 1904, 1 Ch. 627. 
 
 IVelson v. Faber, 1903, 2 K. B. 367. 
 
 Christie's case, supra. 
 
 Farmer v. Goy # Co., 1900, 2 Ch. 149. 
 
 ffi«v. Hiekin, 1897, 2 Ch. 579. 
 Pringle v. Gloag, 10 Ch. D. 676. 
 Goodfellow V. Gray, 1899, 2 Q. B. 498. 
 Farmer v. Goy # Co., 1900, 2 Ch. 149. 
 David V. Rees, 1904, 2 K. B. 435. 
 Bake v. French, 1907, 1 Ch. 428. 
 
set-off; also appropriation of payments, etc. 467 
 
 In bankruptcy {x), if there have been "mutual credits "Mutual 
 mutual debts or .other mutual dealinqs" between the t^'^^^'l'~"^ 
 
 r-,, , /••Til DanKTUptCT, 
 
 Dankrupt and an.y other person (proving in the bank- &c.,— set-off 
 ruptcy), the sum due from the one party shall be set off ty reason of. 
 against any sum due from the other (y) ; and this rule 
 extends to unliquidated damages arising in connection 
 with a contract {z); and the right is available also, in 
 the administration of insolvent estates {a), — and in the 
 winding-up of companies (&). But the difficulty in all 
 these cases, is to show that the credits debts and deal- 
 ings have been (in fact) mutual (c), — semble, mutual in 
 their first creation (d) . 
 
 In the general ease, a joint debt shall not be set off Noset-oif, of 
 against a separate debt (or a separate debt against a joint ^''ajgerent"^ 
 debt) : And, as regards debts accruing in different rights, rights ; 
 the rule is, that they shall not be set off (e), — although, 
 under exceptional circumstances, they may be set off : 
 For example, a debt owing by A. in son droit will be 
 set off against a debt owing to A. in autre droit, where 
 A. (besides being executor) is also residuary legatee, and 
 the debt owing to A. as executor has become (in eSect) 
 a debt owing to A. in son droit (f): Also, a debt owing 
 to the administrator personally was set off against money 
 with which the administrator as such was chargeable, the 
 administrator being also residuary legatee, and the estate 
 having been (in effect) " cleared" (g): And, lastly, 
 where A. was a legatee, and A.'s husband was indebted 
 to the testator, the executor was held entitled to retain 
 the debt out of the legacy, — although A. might have 
 asserted her equity to a. settlement out of the legacy (h), 
 — which equity has priority over the right of retainer(z). 
 
 (x) He G. IS. B., 1903, 2 K. B. 340. 
 
 (y) In re Mid-Kent Fruit Co., 1896, 1 Ch. 567. 
 
 (z) Elliott V. Turquand, 7 App. Ca. 79. 
 
 (a) Sovereign Life Assitraneey, Dodd, 1892, 2 Q. B. 573. 
 
 (S) Mersey Steel Co. v. Naylor, 9 App. Ca. 434. 
 
 (c) In re Gedmey, 1908, 1 Ch. 809 ; Lord's Trustee's case, 1908, 2 K. B. 54. 
 
 (d) Bennett v. White, 1910, W. N. 97. 
 
 (e) Bishop v. Church, 3 Atk. 691. 
 
 (/) Bailey v. Finch, L. R. 7 Q. B. 34. 
 {g) Price T. Price, 11 Ch. D. 163. 
 (h) Poulter v. Shackel, 39 Ch. D. 471. 
 (i) super v. Oliver, h. E. 16 Bq. 481. 
 
 H h2 
 
468 THE ORIGINALLY CONCUIUiENT JUKISDICTION. 
 
 or where Where money has been reoeived for a spocific purpose, 
 
 Seofticany ^^ Cannot, of course, be applied for any other purpose ; and a 
 appropriated; Solicitor (e.g.) may not apply such money in discharge of 
 his costs (k), — even as regards any balance of the money 
 which may remain over, after the specific purpose is 
 answered (Z); but (under exceptional circumstances) a 
 set-off may he allowed in such a case (m) . 
 
 or where debts A set-off is Only available where an action would 
 Stai°nsically lie(w); and therefore there can be no set-off of a non- 
 different actionable claim against an actionable debt (o), or of an 
 qua 1 les. ordinary executable debt against one that is exempt from 
 recovery by execution (p), or of a debt which is statute- 
 barred against a debt which is not statute-barred (g), or 
 of money payable to A. B. on his (A. B.'s) death only 
 against money dae from A. B. in his (A. B.'s) life- 
 time (r). Nor may a legacy be set off against a mere 
 liability incurred on behalf of the legatee (s), — except 
 to the extent of any actual payment made (under legal 
 compulsion) on account of the liability (t), and except 
 to the extent of any actual appropriation for the 
 legacy (m). 
 
 Legacyagainst Where a legatee is a debtor, — Soil., a sole, and not a 
 debt,— usually joint, debtor (x), — to the estate, he must, in general, first 
 pay up what he owes (in respect of the debt), before he 
 will receive anything (on account of his legacy (t/)), — 
 even although the debt should be statute-barred (z) : 
 Secus, if the legatee is not the debtor, but only the repre- 
 sentative of the debtor (a) . Also, where the legatee 
 
 (k) Stumrire\. Vamphell ^ Co., 1892, 1 Q. B 344. 
 
 (T) In re Mid-Emt Fruit Co., 1896, 1 Ch. 667. 
 
 (m) Ex paite Stephens, 11 Ves. 24. 
 
 (k) Smith V. Betty, 1903, 2 K. B. 317. 
 
 (o) Unuhy V. Ra'wleii, 1 Q. B. D. 460.- 
 
 Ip) Giithm-colev. Smith, 17 Ch. Div. 1. 
 
 Iq) Wnlker v. Clements, 1.5 Q. B. 1046. 
 
 (»•) Hall U V. Halhtt. 13 Ch. D. 232. 
 
 (.s) Lee T. Binnn. 1896. 2 Ch. 684. 
 
 (0 Arlcorh V. Evans, 189S, 3 Ch. 34.T. 
 
 (m) Erlg.ir\. riomley, 190i), A. C. 431. 
 
 (x) Tarver v. Twnn; 1911, 1 Ch. 716. 
 
 {y) Ciiuitenay v. Willimns, 3 Ha, 539. 
 
 (z) Ci.aies V. Coates, 33 Beav. 249. 
 
 (a) In re Bruce, 1908, 2 Ch. 682. 
 
set-off; also appropriation of payments, etc. 469 
 
 (A. B.) becomes a bankrupt after his right to the legacy whereiegatee- 
 has accrued, the testator's executors may retain out of the ?®^?°'' \^_ 
 legacy the amount of A. B.'s debt, — unless they shall when and 
 have proved for the debt in the bankruptcy (6). But, 7''^'"'°*in,e 
 when the legatee (A. B.) is a bankrupt already at the date set o°ff?"^ 
 of the death of the testator, the executors may not retain, 
 but can only prove and receive a dividend (on the debt) 
 pari passu with the other creditors of A. B. (c); and, in 
 such a case, if the insolvent legatee has meanwhile been 
 released (by a composition in the bankruptcy), he is en- 
 titled to receive his legacy in full (d) . 
 
 Section II. Appropriation of Payments. 
 
 If a debtor, who owes several debts to one and the same The three 
 creditor, makes a general payment to him, the question (n^Dehtor has ^ 
 arises, — To which of the debts shall the payment be first right to 
 appropriated (or imputed): For instance, if A. owes B. appropriate;, 
 two distinct sums of £100 and £100, and the earlier of the 
 two debts is statute-barred, — If A. pays £iO0 to B. and 
 that payment is imputed to the earlier debt, — B . can still 
 recover from A. (by action against A.) the other £100: 
 Or if A. owes B. two sums of £500 and £500, and C. is a 
 surety for one only of them, — If A. pays B. £500, and 
 that payment is imputed to the £500 for which C. is a 
 surety, — C.'s liability will cease (e). And having regard 
 to the importance of these distinctions, the following rules, 
 applicable to the appropriation of payments, have been 
 made, that is to say: — 
 
 (1) The debtor has the first right to appropriate, — 
 and he exercises this option at the time of making the 
 payment (/); 
 
 (2) If the debtor himself has not appropriated the (2) The ore- 
 payment, the creditor is at liberty to appropriate it (gr), — ■ ditorhas th^ 
 and he need not make an immediate appropriation, but appropriation ; 
 
 (b) Se Rowe, 1906, I Ch. 1. 
 
 \c) Cherry v. Botilthee, i My. & Cr. 442. 
 
 (d) In re Seuell, White v. Sewell, 1909, 1 Ch. 806. 
 
 [e) ClaytorCs ease, 1 Mer. 572. 
 
 (/) A,'on„ Cro. Eliz. 68; Friend v. Young, 1897, 2 Oh. 421. 
 {(/) Mutton V. Feat. 1899, 2 Ch. 556. 
 
470 
 
 THE OKIGINALLY CONCURRENT JURISDICTION. 
 
 (3) If neither 
 ■debtor nor 
 creditor makes 
 the appropria- 
 tion, the law 
 makes it. 
 
 Rule in 
 
 Clayton^s 
 ■case, — when 
 applicable ? 
 
 And when 
 inapplicable ? 
 
 may do so at any time before action (A), — or even, semble, 
 in the course of the action (i) ; 
 
 (2a) The creditor may not appropriate the payment 
 to an illegal item in the account (fc) ; and where one of 
 the two debts is statute-barred, and the creditor appro- 
 priates the payment to the statute-barred debt, that will 
 not revive the statute-barred debt {I) : And 
 
 (3) Where neither the debtor nor the creditor has made 
 any appropriation of the payment, the law appropriates 
 it to the earlier of the two debts, according to what has 
 been called the Rule in Clayton's case (to), — 
 
 Where it appeared, that, on the death of D. (a partner 
 in the bank), there was a balance of £1,713 in favour 
 of C. on his current account with the bank; and after 
 the death of D., the surviving partners became bankrupt; 
 but (before their bankruptcy) C . had drawn out sums to a 
 larger amount than the £1,713, and had paid in sums still 
 more oonsiderable, — And the decision was, that the sums 
 drawn out by 0. after the death of D. were {in relief of 
 the estate of. D.) appropriated by the law to the pay- 
 ment of the balance of £1,713, — So that D.'s estate was 
 discharged from the debt due from the firm at his death 
 (the sums subsequently paid in by C . constituting a new 
 debt, for which the surviving members of the firm alone 
 were liable) : And the decision proceeded on the ground, 
 that {presumably) the first item on the debit side of the 
 account was discharged {or reduced) by the first item on the 
 credit side . The rule in Clayton's case is, however, only ap- 
 plicable when there is, in fact, a current account between the 
 parties (w), — and is not always applicable even then (o): 
 Thus, where the current account is guaranteed by a third 
 party, and the guarantee ends (say) by the death of the 
 guarantor, and a sum of £1,000 is then owing on the 
 account, — the estate of the guarantor remains (in general) 
 liable for that amount, notwithstanding that the prin- 
 cipal debtor may have subsequently paid in other moneys. 
 
 (h) Smith y. Betty, 1903, 2 K. B. 317. 
 
 (i) Seymour v. Piclcett, 1905, 1 K. B. 715. 
 
 (k) Wright t. Laing, 3 B. & C. 165. 
 
 (Z) Mills V. Fowhes, 5 Bing. N. C. 455. 
 
 (m) 1 Mer. 585. 
 
 («) Mutton V. Peat, supra. 
 
 (o) Cory Brothers v. Mecca S.S. Co., 1897, A. C. 286. 
 
set-off; also appropriation of payments, etc. 471 
 
 especially if theee other moneys are carried to a new 
 account Ip) . And, again, where the current account at 
 the bank is made up partly of moneys belonging to thei 
 customer in his own right and partly of moneys belong- 
 ing to him as a trustee for divers classes of cestuis que 
 trustent, — paid in at different times indiscriminately, and 
 drawn upon indiscriminately, — the rule (although it may 
 apply as between the divers cestuis que trustent (q)) has 
 no application as between the trustee' and the cestuis que 
 trmtent,— the trustee not being permitted (as against 
 any cestui que trust) to say, that what he has drawn 
 out for his own purposes was not on account of his own 
 fund (r) . And, nota bene, even if the trust fund is not 
 capable of being ear-marked, it may (as against the 
 trustee) be followed, — upon the principle, that the cestui 
 que trust is entitled (as against his trustee) to a charge 
 upon the whole for the part belonging to the trust (s). 
 
 Section III. Appropriation of Securities. 
 
 Where A. borrows money ;£rom B., and gives B. secu- The securities 
 rities for the loan, A. is entitled (to the extent of these ch^gf^ 
 securities) to be indemnified by B. against personal (a) Whether 
 payment of the loan; and (subject thereto) B. may (in o^i^iiebt; 
 general) deal with the securities, rendering to A. the sur- 
 plus (if any) after payment of the loan; and B. may 
 not (except by previous agreement with A.) so deal with 
 the securities, as to deprive A. of the indemnity which 
 is afforded him by the securities, — So that, to the extent 
 that B. disposes of the securities, the loan (as between 
 him and A.) is discharged: Also, where A. borrows from or (b) Suc- 
 B. on sucoessivie loans, and gives successive securities to cessive debts. 
 B. to provide for the payment of the loans, A. is deemed 
 to have appropriated the successive securities to the suc- 
 cessive loans; and the successive loans are successively 
 discharged by the realisation of the successive securities 
 respectively appropriated thereto. 
 
 (p) House V. Bradford Bank, 1894, 2 Ch. 32. 
 (q) Woodv. Stenning, 1895, 2 Ch. 433. 
 (r) Ex parte Dale # Co., 11 Ch. Div. 772. 
 (s) In re Oatway, 1903, 2 Ch. 356. 
 
472 
 
 THE OEIGINALLY CONCURRENT JURISDICTION. 
 
 Appropriatiou 
 of "short 
 AtMs " towards 
 meeting 
 "aocept- 
 
 Only where 
 both drawer 
 and acceptor 
 become 
 bankrupt. 
 
 The practice of successive borrowings on successive 
 securities is very usual among merchants, — For example, 
 
 A. draws bills on B., and B. accepts the bills, on the faith 
 of A. sending (and A., in due oours3, sends) to B. secu- 
 rities {i.e., remittances) in the form of "short bills," — 
 the intention being that B. shall negotiate these short 
 bills, and apply the proceeds in providing for his accept- 
 ances, — which application of the proceeds both discharges 
 
 B. as acceptor and indemnifies A. as drawer: And (in 
 such a case) if A. and B. should both of them go bank- 
 rupt (t) or become insolvent (m), while any of B.'s accept- 
 ances are outstanding, the short bills which then remain 
 in specie (in the hands of B.) are properly applicable 
 (according to their appropriation) in or towards pro- 
 viding against B.'s acceptances, — and so relieving both 
 the estate of B. and the estate of A. The principle of 
 the thing is the adjustment of the equities between 
 the respective estates of A. and B., — and the principle 
 is extended in favour of any third parties who may, 
 at the time of the double bankruptcy or insolvency, 
 hold the acceptances of B., — So that these holders 
 also of B.'s acceptances (and who are called the bill 
 holders) can insist on the short bills which nemain in specie 
 in B.'s hands being applied in or towards payment of the 
 acceptances. 
 
 Where no But it is to be observed, that the rule in question 
 
 bankniptoy,— (commonly called the Rule in Ex parte Waring) is 
 application of only applicable, when A. and B. are both of them bank- 
 bffls'.'"^'^°'^ rupt (or insolvent): And therefore, Fii-stly, if B. alone is 
 bankrupt (or insolvent), and A. is not {x), — the bill- 
 holders prove against B.'s estate, on his liability as 
 acceptor and get (say) 3s. 4d. in the pound, and thereafter 
 obtain payment of the residue of their debt (16s. 8d. in 
 the pound) from A. on his liability as drawer; And, 
 Secondly, if A. is bankrupt and B. is not, B. discharges 
 his acceptances in full and applies the short bills (as his 
 own property) to the extent of what he has had to pay on 
 his acceptances {y) . 
 
 {t) Ex parte Warwi/, 19 Ves. 34.5. 
 
 (u) routes V. H'irgreares, 3 De G. M. & Gr. 430. 
 
 [x) In re Holdero, 19 Vps. 25. 
 
 (2/) In re Barned's- Bankuig Co., L. R. 19 Eij. 1. 
 
set-off; also appropriation of payments, etc. 473 
 
 Also, generally, so long as both A. and B. are where neither 
 solvent, the bill-holders cannot interfere with what B. t^i^pt,— 
 may choose to do with the securities, — even although application of 
 appropriated, — the appropriation being only as between biUs'MnsDch 
 A. and 'B.(z); but (by special agreement with the a case, 
 bill-holders) the appropriation might (even in such a 
 case) be extended in their favour (a), — the specific special 
 appropriation being, of course, proved (&). 
 
 (s) Banner v. Johnston, L. E. ■'5 H. L. 1&7. 
 
 (a) Agra and Musterman's Bank, Re, Ij. E 2 Ch. App. 391. 
 
 (h) Brown Shipley f Co. t. Eoiigh, 29 Ch. Div. 848. 
 
474 
 
 CHAPTEE IX. 
 
 SPECIFIC PEEFOEMANCE. 
 
 Inadequacy of gy (.j^g common law, a Contract to sell or transfer a thinff 
 
 remedy atlaw, ' i i. i 
 
 ground of was :trea-,t©a as a. merely personal contract, laad lor the 
 breach of which damages (and damages only) were re- 
 coverable; but, in equity, the due performance of the 
 contract itself would (in many cases) have been enforced, 
 — and that upon the ground of the inadequacy of the 
 damages recoverable for the breach. 
 
 equity juris 
 diction. 
 
 Contracts or 
 agreements, 
 which equity 
 will not decree 
 specific per- 
 formance of: — 
 (1) Illegal or 
 immoral 
 contracts. 
 
 Equity would not, of course, compel the specific per- 
 formance of an agreement which was immoral (a), or 
 contrary to the law of England (6); nor would damages 
 even be recoverable in either of these two cases (c) . But 
 a separation agreement (where the separation is imminent 
 and not merely prospective) is now considered neither 
 illegal nor immoral {d), — and will be enforced (e): 
 Also, a married woman may lawfully bind herself .by a 
 compromise in divorce proceedings (/) : Also, her separation 
 agreement will be enforced against her (g), — Scil., unless 
 where the husband (by his own wilful breaches of the 
 covenants on his part contained in the agreement) has 
 disentitled himself to that relief (h) ; but, if (and so 
 far as) the separation agreement is (or becomes) illegal, 
 it will not be enforced (i) . But a covenant to resign a 
 church living would not have been enforced (k) . 
 
 (a) Bwing v. Osbaldiston, 2 My. & Cr. 53. 
 (i) Sope V. Hope, 8 De G. M. & G. 731. 
 
 (c) Spieer v. Sunt, 1908, 1 K. B. 720. 
 
 (d) Weister v. Webster, 4 De G. M. & G. 437. 
 
 (e) Sart v. Bart, 18 Ch. Div. 670. 
 (/) Cahillv. Cahill, 8 App. Ca. 420. 
 Ig) Besant v. Wood, 12 Ch. Div. 605. 
 {h) Kennedy v. Kennedy, 1907, P. 49. 
 
 (i) Cartioright v. Cartwright, 3 De G. M. & G. 982. 
 (k) Newdigate v. Helps, 6 Madd. 133. 
 
SPECIFIC PEKFOEMANCE. 
 
 475 
 
 Equity will not specifically enforce an agreement which (2) Agree- 
 is merely voluntary (Z), — ^^or which is determinable at "Sid^tion, 
 will (to) ; But an agreement for a year to year tenancy —or which are 
 
 will be entoroed {n). determinaWe. 
 
 The incapacity of the Court will sometimes limit its (3) Contracts 
 jurisdiction to compel the specific performance of an agree- q^^^ cannot 
 ment, — For example, where the agreement is to do acts enforce, 
 involving personal skill (o), or is to do contiauous succes- (a) Contracts 
 sive acts (p), — although the Court will, in a proper case, gonaU^^or" 
 decree the execution by the defendant of a covenant to continiious 
 do the acts, and the plaintiff will then from time to time ^'i"^''^^^'™ 
 recover damages from the defendant, for every successive 
 breach by him of his covenant (g) : Also, in the case of con- (b) Contracts 
 tracts to build or to repair, the remedy by specific perform- *° ^^^^ ^ 
 ance is usually not needed, the remedy in damages being 
 sufficient (r) ; but where the building agreement is defi- 
 nite in its nature, being (e-g.) for the construotion of 
 a railway siding (s), the Court will occasionally enforce 
 it (t), — as where the plaintiff would otherwise be remedi- 
 less (m), not being himself able, ivithout a trespass, to 
 execute the building contract otherwise than through the 
 defendant (x) . 
 
 In general also, where an agreement comprises two or (") Non- 
 more matters, only some of which are specifically enforce- contracts,— 
 able, the Court will not enforce these latter, where they are whenoniypart 
 dependent on the others (y) . But where a building agree- specifically 
 ment provided that the lessor should grant leases, piece- performaWe. 
 meal, to the builder (or his assigns), upon the completion 
 of the buildings on the several plots, — and the conditions 
 
 {I) Jefferys v. Jefferys, Cr. & Ph. 141. 
 ■ [m) jkercy v. Birch, 9 Ves. 357. 
 \n) Lever v. Koffl-er, 1901, 1 Ch. 543. 
 (o) LumUy v. Wagner, 1 De G. M. & G. 604. 
 [p) JBlackett v. Bates, 2 H. & M. 270. 
 \q) Wilson v. West EarOepool E. C, 2 De G. J. & S. 475. 
 (r) Ryan v. Mutual Tontine, 1893, 1 Ch. 116. 
 (s) Greene v. West Cheshire R. C, L. B. 13 Eq. 44. 
 (t) Mohineux v. Richard, 1906, 1 Ch. 34. 
 (m) Wilson V. Fm-ness R. C, L. R. 9 Eq. 28. 
 Ix) Fortescue v. Lostwithiel R. C, 1894, 3 Ch. 621. 
 {y) Ogden v. Fossick, 4 De G. E. & J. 426. 
 
476 
 
 THE OEIGINALLY CONCUEEENT JURISDICTION. 
 
 as ho building on one plot had been fulfilled, — The 
 Court enforced the agreement to grant a lease of that plot, 
 notwithstanding that (as regards the other and unbuilt-on 
 plots) the Court could not specifically enforce the agree- 
 ment to build thereon (^;). And, again, where some of 
 the terms of an agreement are legal and the others are 
 illegal, if these latter are clearly severable, the Court will 
 (or sometimes will) enforce specifically the terms which 
 are legal (a) . 
 
 Contracts in 
 restraint of 
 trade, — modi- 
 fication and 
 enforcement 
 of. 
 
 As regards contracts in restraint of trade, — If the limits 
 of the restraint are (in the opinion of the judge) unreason- 
 able, the Court will (if it can) give 'the restraint a reason- 
 able limit, and enforce it accordingly (6), — although, as 
 a rule, if a contract is to be spesifically enforced at all, 
 the whole of it is to be enforced (c) . 
 
 (4) Agree- 
 ments for a 
 reference. 
 
 As regards agreements for a reference, — Equity will not 
 directly enforce (nor would a Court of law have directly 
 enforced) an agreement to appoint an arbitrator (d), — 
 although, indirectly (^.e., by staying the action) the Court 
 enforces such an agreement. 
 
 (6) Contracts Equity will not, in the general case, specifically enforce 
 
 for the loan of i. j. j? i.T i i? i ^i i. 
 
 money. ^ Contract tor the loan oi money, whetlier on mortgage or 
 
 without any mortgage (e), — excepting that a contract to 
 take the debentures of a company may now be enforced (/) . 
 
 (6) Contracts 
 wanting in 
 mntaality. 
 
 Also, a contract, in order to have been specifically en- 
 forceable, must have been mutually binding, — and where 
 the purchaser (of, e.g., a patent) could enforce specific 
 performance, the vendor on his side also would be able 
 to enforce specific performance (gr) : And, conversely, if 
 the purchaser could not, the vendor should not, specifically 
 
 (s) Wilkinson v. Clements, L. R. 8 Ch. App. 96. 
 {a) Ode.'.sa Tiamwnys Co. v. Mendel, 8 Ch. Div. 235. 
 {*) Dubouski V. Goldstein, 1896, 1 Q. B. 478. 
 (c) Stacker v. Wedilertmm, 3 K. & J. 393. 
 (rf) In re Smith and Service, 25 Q. B. D. 545. 
 («) Sichelv. Mi'sentlial, 30 Beav. 371. 
 (/) 8 Edw. Vir. c. 69, a. 105. 
 (^) Cogent V, Gibson, 33 Bear. 557. 
 
SPECIFIC PERFORMANCE. 477 
 
 enforce the contract (h), — Therefore, an infant cannot 
 compel specific performance, — Scil., because the Court will 
 not compel specific performance against him {i); and, an 
 infant's apprenticeship deed even is not enforced in 
 equity (Jc\ — because it is enforc-eable before the jus- 
 tices {I), — Sail., during the infancy, and only during 
 that (m) . But a married woman might have obtained 
 specific performance of her contract, — although the con- 
 tract (being unacknowledged) was not, strictly speaking, 
 binding on her (w) ; and the plaintiff (the vendor) might 
 have had specific performance against a married woman 
 purchaser (o). Also, a plaintiff may obtain specific per- (7) Contiuots 
 formance of a contract signed by the defendant, although ^^en a^'**"^' 
 not signed by himself, — the Statute of Erauds only re- writing is 
 quiring the agreement to bo signed by " the party to he ^^I'l"^^"^- 
 charged;" and (in such a case)' the plaintiff (by com- 
 mencing the action) has made the remedy mutual: And 
 note, that where a contract is by offer and acceptance, 
 the offer in writing of the defendant may be accepted by 
 word of mouth of the plaintiff (p), — or by telegram (g) : 
 And when the acceptance is by letter sent through the 
 post-office, it is complete the moment the letter is posted; 
 but the withdrawal of the acceptance, if also by letter, is 
 not complete, until the letter of withdrawal is received (r). 
 And here note, that when the offer is of two alternatives, 
 the acceptance should specify vi'hich of the two alternatives 
 is accepted (s) . 
 
 Lastly, equity will not specifically enforce a contract (8) Contract 
 (by the donee of a power) to appoint (by will) to any ^t'tolke 
 particular individual {t), — not even where the contract is particular 
 
 appointment. 
 
 (A) Fnrrer v. Nnsh, 35 Beav. 171. 
 (i) Flight -v. Bnlland. 4 Russ. 301. 
 (i) T)e Franc'sro v. Bariitim, 45 Ch. Div. 430. 
 (l) Green v. Thompson, 1889, '^ Q. B. 1. 
 (m) Goddv Tkompsm. 1911, 1 K. B. 364. 
 
 (k) Sugd. V. & P. 14th ed., p. 217, citing Armiger v. Clarice, Burr. 
 166. 
 (o) Phard V. Jlm'^. L. R. 5 Ch. App. 274. 
 \p) Lover V. KoVer, 1901, 1 Ch. 54S. 
 (q) Gndwin v. F-nneii, L. R. 5 C. P. 295. 
 (r) Henthnrn v. Fraser, 1892, 2 Ch. 27. ' 
 
 (s) Zerer v. Koffler, .vipra. 
 {t) Hill V. Sehtvan, 1892, 3 Ch. 510, 
 
478 
 
 THE ORIGINALLY CONCUEEENT JURISDICTION. 
 
 for value (m) ; but the party will be left to his remedy in 
 damages for the breach, the damages being supposed to 
 be sufficient. 
 
 Division of 
 subject, — 
 according as 
 the property 
 is realty or is 
 personalty. 
 
 Where the Court decrees the specific performance of 
 a contract, it proceeds not upon any mere distinction 
 between land and goods, but simply upon the ground 
 that the damages recoverable at law will not (in the 
 particular case) afford a complete remedy, — So that, even 
 in the case of goods, if the damages would be inadequate, 
 the Court will enforce a contract regarding them : 
 
 I. Contracts 
 respecting 
 personal 
 chattels, — 
 speciiic per- 
 formance of :— 
 
 (1) Shares in 
 a railway 
 company. 
 
 (2) Assigned 
 dehts under a 
 bankruptcy. 
 
 (3) Bare and 
 
 beautiful 
 
 articles. 
 
 (4) Heirlooms 
 and other 
 chattels of 
 peculiar value. 
 
 (5) Trust 
 stocks, — and 
 trust goods 
 generally. 
 
 Thus, specific performance will be decreed of an 
 agreement for the sale and purchase of shares in a rail- 
 way company (x) ; or for the sale and purchase of an 
 annuity {y) ; or for the sale and purchase of debts prov- 
 able in a bankruptcy, — ^and at the suit of either vendor (2) 
 or purchaser (a), — Sdl., because the sale being of the 
 uncertain dividends to become payable, the damages 
 recoverable at law would not accurately represent their 
 value. And the Court would also, and (especially since 
 the 56 & 57 Vict. c. 71, s. 52) will, enforce a timber- 
 purchase agreement (&), — and would, and will, issue an 
 injunction in aid (c). Also, the Court would compel the 
 specific delivery of articles of unusual beauty or rarity, 
 on the ground that the damages are not an adequate com- 
 pensation for their non-delivery (c?), — or the specific 
 delivery up of heirlooms, on the same ground (e). The 
 Court will also decree the specific performance of marriage 
 articles, — where the marriage has been solemnised on the 
 faith thereof, — Even where a bond is given by way of 
 collateral security for the due performance of the articles, 
 the damages recoverable on the bond not being deemed 
 an equivalent (/) . Also, generally, where a fiduciary 
 
 (m) Zaiser v. Lawley, 1902, 2 Ch. 799. 
 \x) Duncuft V. AlbrecU, 12 Sim. 199. 
 («/) Kenny v. Wenham, 6 Madd. 355. 
 (a) Adderley v. Bixon, 1 S. & S. 607, 610. 
 
 (a) Cogent v. Gibson, 33 Beav. 557. 
 
 [b) Suxton v. Lister, 3 Atk. 385. 
 
 {c) Jones V. Tmleermlle, 1909, 2 Ch. 440. 
 
 (d) Falcke v. Gray, 4 Dre-w. 658. 
 
 \e) Pusey v. Fusey, 1 Vern. 273. 
 
 (/) Eobso-n V. Trevor, 2 P. Wms. 191. 
 
SPECIFIC PERFORMANCE . 479 
 
 relation subsisted between the parties, — whether it was 
 that of agent trustee or broker, — the Court would compel 
 a speoific delivery up of the stocks cargoes or other 
 chattels {g). 
 
 Contracts regarding lands differ greatly from con- H- Contracts 
 tracts respecting goods, — Because the land may have a land,— 
 peculiar value to the purchaser; and the Court therefore enforced, 
 (almost invariably) decrees the specific performance of damages at 
 contracts regarding lands: And the jurisdiction extends ^^'^^° 
 to lands out of the jurisdiction, where the contracting 
 parties are within the jurisdiction {h), and the action is 
 against one of them personally (and not against his or 
 her assignee of the contract (i)). 
 
 The phrase " spe^fic performance" is commonly used Specific per- 
 in two senses, that is to say: (1) In the sense of turn- thrtYro'senses 
 ing an executory contract (sometimes called "Heads of in which the 
 Agreement") into an executed contract, — by decreeing pii^ase is used, 
 the execution of the document (usually a lease or con- 
 veyance), which (in and by the executory contract) is 
 provided for; and (2) In the sense of carrying out, in 
 specie, the very act or thing itself which is in the con- 
 tract. Now, it is the former of these two meanings pf 
 the phrase, which is the more correct meaning, — Scil., 
 in oases where the Court decrees the specific performance 
 of the contract, as distinguished from cases where the 
 Court merely procures (in effect) the specific performance 
 of it by means of an injunction: For example, the execu- 
 tion of the marriage settlement would be the specific 
 performance of the marriage articles (fc) ; and where the 
 agreement was for a lease, the execution of the indenture 
 of lease would be the specific performance of that agree- 
 ment (I). And in the lease executed in specific perform- 
 ance of the agreement, all the agreed covenants, on the 
 parts of the lessor and lessee respectively would be in- 
 serted, — the question, as to whether any of these covenants 
 (while being intended covenants only) had been already 
 
 (g) Wood -7. Sowcliffe, 2 Ph. 383. 
 
 (A) Perm v. Lord Baltimore, 1 Ves. 444. 
 
 (i) Vincent v. Godson, 4 De G-. M. & G. 546. 
 
 (k) SueJcle t. Mitchell, 18 Ves. 100. 
 
 [I) Bankin v. Lay, 2 De &. F. & J. 65. 
 
480 
 
 THE ORIGINALLY CONCUEEENT JUEISDICTION . 
 
 Damages at 
 law, — when 
 nominal and 
 when suh- 
 stantial. 
 
 Contracts iu 
 writing, — 
 ascertaiument 
 and enforce- 
 ment of. 
 
 Where the 
 sale is by 
 auction. 
 
 broken, being afterwards raised in an action on the actual 
 covenant itself (to); although, occasionally (as where the 
 intended covenant has been already broken, and the breach 
 of it is patent and also serious), the Court will merely 
 refuse to specifically decree the lease (k). 
 
 The damages recoverable for the breach of a contract 
 regarding lands, may be nominal only or may be sub- 
 stantial, — being nominal only, in respect of a breach which 
 arises only from a defect of title (o); but being sub- 
 stantial, where the vendor is otherwise in default (p) . 
 Also, even in respect of a defect of title, if the contract 
 was not merely (as it usually is) " subject to an inquiry 
 as to the title," but was with an actual " warranty of 
 the title," the damages recoverable for the breach would 
 be substantial in that case also (q) . On the other hand, 
 the damages will sometimes be nil (r) . 
 
 When the contract is required to be in writing, you 
 may, for the purpose of ascertaining what the written 
 contract is, read two or more documents (mutually com- 
 pletory) together, whether the documents connect inter &e 
 on the face of them, or their connection requires to be 
 a little aided by extrinsic evidence (s.) ; and parol (or 
 extrinsic) evidence is, of course, always admissible, for 
 the purpose of identifying the particular land comprised 
 in the contract. But, nota bene, the mere presence of 
 the writing will not of itself make a contract, — unless 
 the parties were also intending a contract, when they 
 signed the writing (fi). 
 
 When the sale is by auction, the auctioneer signing for 
 the purchaser, after his implied authority to do so has 
 ceased or been withdrawn, will not make a contract bind- 
 ing on the purchaser (m) ; and if the auctioneer (without 
 any authority from the vendor to do so) alters, at the time 
 
 (ot) LiUie V. ler/h, 3 De G. & J. 204. 
 
 («) Grfqory v. Wilson^ 9 Ha. 6^'i. 
 
 (o) Jlnin v'. Fothergill, L. K. 7 H. L. 158. 
 
 (p) Bnael V. Fiteh. L. R. 4 Q. B. 6.59. 
 
 (q) Wall V. Cily of lond'ii R. P. Co.. L. R. 9 Q. B. 249. 
 
 (r) Pease-n. Courtney, 1904, 2 Ch. 503. 
 
 («) Tem-ee v. Gar/lner, 1897. 1 Q. B. 688. 
 
 (t) rattle \. Hornibmok, 1897, 1 Ch. 25. 
 
 (m) JBell V. Sails, 1897, 1 Ch. 663. 
 
SPECIFIC PERFORMANCE. 481 
 
 of the auction, the conditions of sale as finally settled, 
 he will not make a contract binding on the vendor («), 
 — Because, generally, the auctioneer must confine himself 
 within the limits of his authority, if he is to make a 
 binding contract, and otherwise the contract will not be 
 tinding (?/), — ^unless where the excess is immaterial. 
 
 Equity yiiW {occasionally) decree specific performance Cases in which 
 of a contract which is not in writing, although required ll^ft^^'^f 
 by the Statute of Frauds to be in writing : For although Frauds is 
 that statute says no action shall be maintained on an teokenm 
 agreement relating to lands which is not in writing, — ^ (a) if uucon- 
 still the Court is in the daily habit of relieving, where scientious to 
 the party seelcing relief has. be.en put into a situation, generally! 
 which makes it generally agaiin'st conscience in the other 
 party, to insist on the want of writing as a bar to the 
 relief (z), — and also because the. statute {having been 
 made to prevent fraud) cannot be perrnitted to be used 
 as the engine of fraud {a) : Therefore, equity would en- (b) where the 
 force specific performance of the • contract, where it was agreement's 
 fully set forth in the bill and confessed in the answer (6), unless the 
 the defendant being (in that case) deemed to have waived not^thstand- ' 
 the writing (c); and if the objection was once waived, ing, insists 
 it could not afterwards (by amendment) be revived (c?); 5'^i"'*'^'^f th 
 and even if the wrong section only of the statute had' statute, 
 been pleaded, the right section could not afterwards (by 
 amendment) be pleaded (e). And, again, when the agree- 
 mient was intended to have been put into writing, but 
 (through a fraud in one of the parties) it was not put into 
 writing, the want of writing was relieved against, if the 
 contract was otherwise proper for specific perform- 
 ance (/) : Also, where, upon a contract not in writing, the 
 purchaser has paid a deposit on account of his purchase- 
 money, and the vendor is ready and willing (up to the 
 
 {x) Manser v. Back, 6 Ha. 443. 
 
 (y) Chinnoeh v. Ely, 4 De G. J. & S. 638. 
 
 («) Bond V. Sopkins, 1 Sch. & Lef. 433. 
 
 (a) Davis v. Whitehead, 1894, 2 Ch. 133. 
 
 (b) Ganter t. Halsey, Arab. 586. 
 
 (c) James v. Smith, 1891, 1 Th. 384. 
 (ct) Spurrier v. Fitzgerald, 6 Vea. 548. 
 [e) James v. Smith, supra. 
 
 (/) .Vaxwell V. Montacute, Preo. Ch. 526. 
 
 I I 
 
482 
 
 THE ORIGINALLY CONCUEEENT JUEISDICTION . 
 
 (c) Where the 
 contiuct is 
 partly per- 
 formed by the 
 partj- seeking 
 aid. 
 
 Acts of pait- 
 performance, 
 — what are 
 not? 
 
 date of action) to complete, the deposit cannot be re- 
 covered back {g) . 
 
 Equity enforces specific performance also, where the 
 parol agreement has been " partly performed " by the 
 party praying relief, — Because, generally, where one 
 party has carried out his part of tlie agreement (in the 
 confidence that the other party will do the same), it is 
 a fraud upon the former to suffer the latter to escape 
 from the performance of the agreement {h) : And, as re- 
 gards Part-Performance : — Acts which are merely ancil- 
 lary to the agreement, — delivering (e.g.) the abstract of 
 title, going to view the estate, making valuations, and 
 the like, — are not acts of part-performance (being acts 
 for which damages are an adequate compensation (i)); 
 and even the payment of the whole purchase-money (/c), 
 or (in the case of a weekly letting) of a wJwle week's 
 rent in advance (Z), is not an act of part-performance. 
 Also, acts of alleged part-performance must be referable 
 to the agreement; and otherwise they are not acts of part- 
 performance (m), — So tha,t{e.g.) mere possession of the 
 land contracted for will not be deemed a part-perform- 
 ance, if the possession be independent of the contract: 
 Thus, where a tenant in possession sued for the specific 
 performance of an alleged agreement for a lease, and set 
 up his possession as an act of part-performance, but his 
 possession was referable to his pre-existing character of 
 tenant, the possession was held not to be a part-perform- 
 ance (n) . Also, if a tenant from year to year of a farm 
 continues in possession, and lays out monej's on the farm 
 in the usual and ordinary course of husbandry, that is 
 not a part-performance which entitles him to the specific 
 performance of an agreement for a lease (o). 
 
 And what 
 are ? 
 
 But if the possession has been delivered solely under 
 and after the contract; or if the possession (although 
 
 [g) Thomas v. Brown, I Q. B. D. 714. 
 
 (A) Jervis v. Berridge, L. R. 8 Ch. App. 351. 
 
 (j) Williams v. Walker, 9 Q. B. D. ."iTiJ. 
 
 \k) Sughps V. Morris, 2 De G. M. & a. 349. 
 
 (/) Thursby v. Beolcs, 70 L. J. Q. B. 91. 
 
 (m) Lncon y. Merlins, 3 Atk. 4. 
 
 {«) Wills V. Stradlitig, 3 Ves. 378. 
 
 (o) Brennan v. Bolton, 2 l)r. & War. 349. 
 
SPECIFIC PEEFOKMANCE. 483 
 
 delivered before the contract) is continued subsequently 
 to the contract, and the continuance of the possession is 
 referable unequivocally to the contract (p) ; or if (in the 
 case of an existing tenancy) the nature of the holding is 
 made different from the original tenancy (as by the pay- 
 ment of a higher rent (q), or by any other unequivocal 
 circumstance referable solely and exclusively to the new 
 contract (r)), — In either or any of these cases, the posses- 
 sion will be an act of part-performance, and will take the 
 case out of the statute, more especially where the party 
 let into (or remaining in) possession has expended money 
 on repairs or other improvements (5) . 
 
 The doctrine of part-performance is not confined to 
 land(^); but it is applicable exclusively to actions for 
 specific performance (m) : And, therefore, if the contract 
 should have become impossible of specific performance, 
 the acts of part-performance will cease to be available, — 
 and the plaintiff will not (in such a case) have damages 
 even (x) . 
 
 Marriage is not (of itself) an act of part-perform- Mairiage, not 
 ance (y) ; but where a father (previous to the marriagie ^rforaance. 
 of his daughter) told her intended husband, that he meant 
 to give them (on their marriage) certain leasehold pro- 
 perty (situate in Carey Street), — and after the marriage, 
 he gave up the possession of the property to the husband, 
 and handed him the title-deeds, that was a part-perform- 
 ance; and the property having been taken oompulsorily 
 by a public body, the compensation was payable to the 
 husband, and not to the wife's father {z). It seems also, 
 that if there be "a written engagement" after marriage, 
 in pursuance of a parol agreement before marriage, that 
 
 (p) Sodson T. Heuland, 1896, 2 Ch. 428. 
 
 (}) Milled- V. Sharp, 1899, 1 Ch. 622. 
 
 (r) Dickinson v. Barrow, 1904, 2 Ch. 339. 
 
 («) Gregory v. Mighell, 18 Ves. 328. 
 
 {<) McManus v. Cooke, 35 Ch. D. 681. 
 
 \u) Britain v. Sossiter, 11 Q. B. D. 123. 
 
 (x) Lavery v. Fursell, 39 Ch. Div. 508. 
 
 {}/) Dy. 296 a (Case 22) ; Clinan v. Cooke, 1 Soh. & Lef. 41. 
 
 (z) Sureombe v. Pinniger, 3 De Gr. M. & G. 571. 
 
 ii2 
 
484 
 
 THE ORIGINALLY CONCUREENT JURISDICTION. 
 
 takes the case out of the statute, — the object of the 4th 
 section of the Statute of Frauds not being to alter prin- 
 ciples of law, but to prescribe a particular species or raodei 
 of evidence only (a) . 
 
 A representa- 
 tion, for the 
 purpose of 
 influencing 
 another, and 
 which has 
 that effect, — 
 will be 
 enforced. 
 
 Also, a representation made by one party (although by 
 parol), for the purpose of influencing the conduct of 
 another party and which is acted on by the latter, will be 
 sufficient to entitle him to enforce the representation (b), 
 — unless where the representation is merely of an inten- 
 tion: And, in fact, it is a leading principle of equity, 
 that a third party who (upon the marriag© of two persons) 
 makes a representation (upon the faith of which the mar- 
 riage takes place), shall make good his representation (c); 
 and an injunction will be granted to restrain [e.g.) the 
 enforcement of a demand, which the party seeking to 
 enforce it, has (while the marriage treaty was pending) 
 falsely represented to be non-existing {d) ; and although 
 the party be an infant at the time, he (or she) will 
 be bound by his (or her) misrepresentation jn such a 
 case (e) . 
 
 Action for 
 specific per- 
 formance, — 
 parties to. 
 
 Where there is a contract for the sale of land, and it 
 is desired to have the contract specifically performed in 
 equity, it is (properly speaking) only the parties to the 
 contract who are to be made plaintiffs and defendants 
 respectively in the action (/) . Therefore, firstly, where 
 the mortgagor has sold, the mortgagee is not a necessary 
 party-defendant to the purchaser's action for specific per- 
 formance (p') ; and, secondly, where the mortgagee has 
 sold, the mortgagor is not a necessary party-defendant (h), 
 — Scil., where no relief (other than the specific perform- 
 ance only of the contract) is claimed. And similarly, 
 when A. has sold to B., and then afterwards has sold to 
 
 {«) Gregg v. Solland, 1902, 2 Oh. 360. 
 (}) Farina V. Fiehes, 1900, 1 Ch. 331. 
 (c) Bold V. Hutchinson, 5 De G. M. & G. 558. 
 {d) NevillY. Wilkinson, 1 Bro. C. C. 543. 
 («) Mills V. Fox, 37 Ch^ Div. 153. 
 /) mil V. Gomme, 5 My. & Or. 250. 
 (g) Tasker-v. Small, 5 My. & Or. 63. 
 (A) Corder v. Morgan, 18 Ves. 344. 
 
SPECIFIC PERFORMANCE. 485 
 
 C, the action of B. (Soil., for specific performance 
 simply) is aguinst A. only, and C. is not properly made 
 a co-defendant with A. («): Also, where an agent has 
 sold in his own name (and Avithout disclosing his prin- 
 cipal's name), the purchaser properly sues the agent 
 only (k), — any questions, that may be subsisting between 
 the principal and the agent inter se, not concerning the 
 purchaser in a mere specific performance action: Also, if 
 A. agrees to grant a lease to B., and (before doing so)' 
 executes a mortgage to C. (who has notice of the agree- 
 ment), the action by B. for specific performance of the 
 agreement is (properly) against A. only, and not also 
 against C. (l). And note, that where between the contract 
 and the completion of the contract a bankruptcy inter- 
 venes, the bankrupt (vendor (m), or purchaser (w)) cannot, 
 as a rule, have specific performance, but the trustee in 
 the bankruptcy of either may (semble) have it upon 
 terms (o); and the solvent purchaser may enforce against 
 the bankruptcy trustee (of the vendor) the execution 
 (e.g.) of the due conveyance (p), — the purchaser being, 
 in such case, entitled also to set off any debt against the 
 unpaid purchase-money (q) . 
 
 To an action for specific performance of a contract for Special 
 
 the sale of lands, the want of writing to evidence the con- defaces to a 
 
 tract is, usually, a good defence, — unless and until it is specific per- 
 
 displaoed in on© or other of the ways above indicated; *°™'*°<^e. 
 and there are also the nine following other defences to 
 such an action, that is to say: — 
 
 (1) Misrepresentation. — This is a ground for refusing (i) Misrcpre- 
 specific performance, — at the instance of the party who sentatior, ty 
 made the misrepresentation; and a misrepresentation, having ' 
 although it may only in part have induced the contract, th?contract 
 
 (j) Cutis y. Thoday, 1 Coll.. 212. 
 
 (Jc) Chadwick v. Maden, 9 Ha. 188. 
 
 (I) Long T. Benning, 33 Beav. 585. 
 
 (ffi) Lowes V. Lush, 14 Ves. 546 ; Ex parte Sabbidge, 8 Ch. D. 367. 
 
 (») FranJelin v. Broumhw, 14 Ves. 550. 
 
 (o) Worky V. Frampton, 5 Ha. 560. 
 
 (p) Pearce v. Bastabk's Trustee, 1901, 2 Ch. 122. 
 
 (V) In re Taylor, Fx parte Mrvell, 1910, IK. B. 562. 
 
486 
 
 THE OEIGINALLY CONCUKEENT JURISDICTION. 
 
 will have the same effect (r) ; and the misrepresentation 
 of an agent (acting within his authority), is the mi&- 
 representation of his principal (s), — Scil., where it is made 
 for the principal's benefit only, and not otherwise (t). 
 
 (2) Mistake 
 rendering 
 •specific per- 
 formance a 
 hardship. 
 Kemedy in 
 case of ; 
 (1) Mutual 
 mistake, — 
 otherwise, 
 ** Common 
 mistalce." 
 
 In the case of a sale. of leasehold lands, a representation 
 that the lease contains no unusual covenants, will be a 
 good ground of defence, if the lease contains in fact a 
 covenant to build and to thereafter maintain build- 
 ings of a value to command double the rent reserved by 
 the lease, or contains a covenant to erect only one house 
 on the land (m), or any other like restrictive covenant; 
 and 'the purchaser will be discharged from the contract, 
 because (if he completed) he would be bound by " the 
 covenants in question, or (if not bound by them) would at 
 any rate be harassed by their existence (x) ; Also, mis- 
 leading conditions of sale (y) are, and (in the case of 
 a sale by trustees) depreciatory conditions of sale used 
 to be (z), — ^although theise latter have now ceased to be (a), 
 — a ground for refusing specific performance; but it is to 
 be remembered, that a condition of sale is not necessarily 
 misleading, merely because it excludes you from making 
 certain requisitions on the title (6), there being certain 
 requisitions which are often better left unmade. 
 
 (2) Mistake. — Mistake also is a ground of defence, — 
 Non videntur, qui errant, consentire ; and parol evidence 
 of the mistake is admissible: The mistake may either be 
 the mistake of both the parties to the contract, or it may 
 be the mistake of one only of them: And, firstly, when 
 the mistake is the mutual or "common" mistake of both, 
 —and any particular hardship falls upon the purchaser, 
 — the mistake is a good ground for the purchaser being 
 
 (r) Clermont v. Tasburgh, 1 J. & W. 112. 
 
 (s) Mullms V. Miller, 22 Ch. Div. 194. 
 
 (t) Lhydy. Grace, 1911, 2 K. B. 4S9. 
 
 («) Ilford Fark v. Jacobs, 1903, 2 Ch. 522. 
 
 (x) Andrew v. Aitken, 22 Ch. D. 218. 
 
 (j/) In re Sandbach and Edmondson's Contract, 1891, 1 Ch. 99. 
 
 (z) Dunn t. Flood, 25 Ch. Div. 629. 
 
 (a) Trustee Act, 1893 (56 & 87 Vict. c. 53), s. 14. 
 
 (J) Blaiberg v. Keeves, 1906, 2 Ch. 175. 
 
SPECIFIC PERFORMANCE. 487 
 
 relieved from the contract (c) . And even, secondly, where (2) Unilateral 
 the mistake is of the defendant only, he will be (in effect) ^'^take. 
 relieved from it, — because the plaintiff will not be able 
 to enforce the specific performance of the contract against 
 him (d), but will be left to his remedy for damages (e); 
 and if it should happen, that (by reason of the mistake) 
 there is a want even of the assensus ad idem which is re- 
 quired in every contract, there will be no right to damages 
 even (/), — "No contract, no damages." 
 
 Where the contract is for a lease, any mistake or un- Uncertainty 
 certainty, as to {e.g.) the date from which the term is to „essT-^en 
 commence, will be fatal to the contract {g), — unless (upon immaterial, 
 the contract itself and the circumstances surrounding it) it 
 is plain, that the term is to commence from the date of the 
 possession given {h) : But a trivial uncertainty, which can 
 be removed by an enquiry, will not make the contract 
 void, where {e.g.) the specific acreage leased {i), or the 
 specific rent to be payable (fc), is left indefinite but ascer- 
 tainable: Secus, where the uncertainty is gross (Z). 
 
 Where the mistake is simply an-error which has crept Effect of 
 into the writing, and it appears that the written agreement a parol ' 
 (varied according to the defendant's contention) repre- variation is 
 sents the true contract between the parties, the Court will defence : 
 enforce specific performance of the contract as so (a) Where the 
 varied (m); but the plaintiff (on his part) cannot obtain t™redu°ct1on 
 specific performance of the written agreement with the oftheagree- 
 variation (w), — unless the variation is merely some term ^tin^.° 
 omitted inadvertently out of the writing, and which is 
 wholly in favour of the defendant, and the plaintiff con- 
 sents to its inclusion (o). On the other hand, where the 
 
 {c) Jones V. Clifford, 3 Ch. D. 779. 
 
 (d) Tamplin T. JoMWS, 15 Ch. D. 21.5. 
 
 {e) Van Praagh v. Everidge, 1903, 1 Ch. 434. 
 
 (/) May V. Thomson, 20 Ch. D. 705. 
 
 ig) Marshall \. Berridge, 19 Ch. D. 233. 
 
 (A) In re Lander and BagUy''s Contract, 1892, 3 Ch. 41. 
 
 (i) Chattoclc v. Muller, 8 Oh. D. 177. 
 
 (h) Gregory y. Mighell, 18 Vea 323. 
 
 (l) Douglas v. Bayes, 1908, A. C. 477. 
 
 {m) Smith v. Wheaieroft, 9 Ch. D. 223. 
 
 (n) Townshend y. Stangroom, 6 Ves. 328. 
 
 (o) Martin v. Fycroft, 2 De Q. M. & G. 785. 
 
488 
 
 THE OEIGINALLY CONCURRENT JURISDICTION. 
 
 (b) Where 
 there is a 
 misunder- 
 standing as to 
 terms of 
 agreement. 
 
 (c) Where the 
 parol varia- 
 tion adds a 
 term &uhse~ 
 qneit to the 
 contract. 
 
 mistake is a real misunderstanding, there will be a want of 
 the necessary assensus ad idem, — and therefore no enforce- 
 able contract: And where the mistake (so called), which the 
 plaintiff or defendant seeks to set up, is (in fact) a further 
 term agreed to by parol between the parties subsequently 
 to the written agreement, the contract (with such further 
 term added to it) will not be enforced, — excepting, pos- 
 sibly, in a case where the refusal to enforce it might 
 amount to a fraud (p), and excepting where there have 
 been such acts of part-performance as would (in the 
 absence of writing altogether) have justified a decree for 
 specific performance (g). But no one will be allowed to 
 call that a mistake which is merely an " amhiguity " in 
 the writing; nor will either party be able to defeat the 
 contract, by showing merely that he understood the writ- 
 ing as meaning something else (?-), — unless, possibly, 
 where the other party has induoed the misunderstand- 
 ing: 
 
 (3) Misdescrip- 
 tion, — accord- 
 ing as it is 
 substantial 
 or not. 
 
 Purchaser not 
 compelled 
 to take, — 
 (a) Freehold 
 instead of 
 copyhold : 
 
 (b) Nor an 
 underlease 
 instead of 
 original lease. 
 
 (3) Misdescription. — Firstly, Where the misdescrip- 
 tion is substantial, — where the property (e.g.) is sold as 
 copyhold, but turns out to be partly freehold, — the vendor 
 cannot compel specific performance (s): But where the 
 sale is of a defined acreage, — and the contract states that 
 it is partly freehold and partly copyhold, — the sale would 
 be free from objection (^); and on such a sale, if the 
 timber on the whole of the lands sold was included in the 
 sale and to be taken at a valuation, — that again would 
 be no objection to the sale (u), — as neither would it be, 
 where the whole of the land was copyhold (and no part of 
 it was freehold(a;)), — Scil., because the timber is sold as 
 parcel of the land (and with only the same title to it as 
 to the land): Also, a purchaser will not be compelled to 
 take an underlease instead of an original lease («/), — the 
 differences between the two being differences not of value 
 
 (p) Pricey. Dyer, 17 Ves. 364. 
 
 (j) Van T. Corpe, 3 My. & K. 269, 277. 
 
 (>•) Stewart v. Kennedy, 15 App. Ca. 108. 
 
 (s) Sari v. Sicnine, 7 Ch. Div. 42. 
 
 (i) Monro v. Taylor, 8 Ha. 51. 
 
 (u) Crosse v. Lawrence. 9 Ha. 462. 
 
 [x) Crosse v. Keene, 9 Ha. 469. 
 
 (y) Madeley v. Booth, 1 De G. & Sm. 718. 
 
SPECIFIC PERFORMANCE. 
 
 489 
 
 but of tenure (2:): Also, where the property is subject 
 
 to some statutory defeasance, the purchaser will not be 
 
 held to his contract (a); and where a wharf and jetty 
 
 were contracted to be sold, and it turned out, that the 
 
 jetty was liable to be removed by the Corporation of 
 
 London, specific performance was refused (6): Also, (c) A property 
 
 where, upon the sale of a residence and four acres of land, the'propertv 
 
 there was no title to a slip of ground (of about a quarter intended to be 
 
 of an acre) between the house and the highroad, specific ^°^sT^^- 
 
 performance was refused (c), — Because, generally, where 
 
 (owing to some defect in the property itself) the purchaser 
 
 will not really get the property which he bought, specific 
 
 performance will be refused (d), — as where (the purchase 
 
 being of agricultural land) there is no right of cartway 
 
 to it (e). 
 
 Secondly, Where the misdescription is not substantial, where the 
 but is a proper subject for compensation, the Court will siight^Tnd a 
 enforce the contract, — ^at the suit even of the vendor (he proper suhject 
 making compensation to the purchaser (/)): Therefore, tio'n!°thr''^''" 
 where fourteen acres of land were sold as water-meadow, contract will 
 and twelve only answered that description, the misdescrip- ^itiTcompen- 
 tion was held to be matter for compensation (g) . And sation,— as 
 it is to be mentioned, that, where the purchaser seeks J^ii^htiy'''^^^ 
 specific performance, and there has been a misrepresenta- deficient, 
 tion as to the quantity, " the right of the purchaser is to 
 have what the vendor can giv&^ ivith an abatement of the 
 purchase-money for so much as the quantity falls short 
 of the representation" (A), — Or with such compensation 
 (to be otherwise ascertained) as shall be proportionate to 
 the defect (i) : And where a vendor (having only a partial 
 estate) contracts to sell the whole fee simple, if the pur- 
 chaser chooses to take as much as he can have, he has a 
 
 (z) In re Bey fits and Masters' Contract, 39 Ch. Div. 110. 
 (a) Ballard v. Way, 1 Mee. & W. 520. 
 (J) Feers v. Lambert, 7 Beav. 546. 
 
 (c) Ferkins v. Ede, 16 Beav. 193. 
 
 (d) Flight y. Booth, 1 Bing. N. 0. 370 ; and disting. Shepherd v. Croft, 
 1911, 1 Ch. 521. 
 
 (e) Denne v. Ziffht, 8 De G. M. & O. 774. 
 (/) Arnold T. Arnold, 14 Ch. D. 270. 
 
 (g) M' Queen Y. Farquhar, 11 Ve8. 467. 
 (/») Horrocks v. Eigty, 9 Ch. Div. 180. 
 (i) Bill V. Buckley, 17 Ves. 394. 
 
490 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 Partial per- 
 formance not 
 compelled, 
 where unrea- 
 sonable or 
 prejudicial to 
 third parties. 
 
 right to that and to an abatement (Ic), — Excepting that, 
 where a partial performance of the contract (at the suit 
 of the purchaser) -would be unreasonable, or would be 
 prejudicial to third parties interested in the property (l), 
 the Court will refuse to enforce a partial performance 
 of the contract: For example, where a husband and his 
 wife contract to sell and convey the wife's fee simple 
 lands (not being her separate estate), and the wife refuses 
 to complete, there will not be even a partial perform- 
 ance (m), — Secus, where the husband is the alone 
 vendor (n). 
 
 No compensa- 
 tion where 
 there has been 
 fraud: 
 
 nor where the 
 compensation 
 cannot he 
 estimated. 
 
 The principle of granting compensation for a mis- 
 description will not be applied, where there has been 
 fraud or wilful misrepresentation on the purchaser's 
 part (o), — or where the purchaser has otherwise (by his 
 conduct) disentitled himself to that (p) : Also, where there 
 are no data from which the amount of the compensation 
 can be ascertained (q), the Court cannot enforce the con- 
 tract with compensation, — although that objection is one 
 which the Courts are unwilling to entertain. 
 
 Compensation 
 after comple- 
 tion. 
 
 After conveyance of the estate, in completion of the 
 contract, a claim for compensation can be maintained (r), 
 unless there is a condition expressly limiting the compen- 
 sation to misdescriptions discovered before the date of 
 the completion, and not afterwards: Which condition is 
 a very just and proper condition, seeing that the com- 
 pensation recoverable by the purchaser is often of very 
 considerable amount (s), even where the misdescription 
 hardly affects the real value of the property at all (t) : 
 And, nota bene, fiduciary vendors (m), and mortgagee- 
 
 Jc) Mortloch V. Bulhr, 10 Ves. 315. 
 
 I) Thomas v. Dering, 1 Keen, 729. 
 
 m) Castle v. Wilkinson, L. E. 5 Ch. App. 534. 
 
 W) Barnes v. Wood, L. R. S Bq. 424. 
 
 o) Price T. Macaulay, 2 De G. M. & G. 339, 344. 
 
 » In re Sare and 0' More, 1901, 1 Ch. 93. 
 
 q) nuddY. LascelUs, 1900, 1 Ch. 815. 
 
 >) Bos y. Helsham, L. R. 2 Exch. 72. 
 
 s) Royal Bristol Sociittj v. Bomash, 35 Ch. Div. 390. 
 
 t) Cordinyly v. Cheesebrough, 4 De G. F. & J. 379. 
 
 m) Ee Chifferiel, 40 Ch. D. 45. 
 
SPECIFIC PERFORMANCE. 491 
 
 vendors {x), will be liable (in a proper case) to pay the 
 due compensation for a misdescription, — and may also be 
 without any right to be recouped the amount {y) . 
 
 (4) Lapse of Time. — 'Time used always to be of the W Lapse of 
 essence of the contract at law; but Courts of Equity dis- barm equity, 
 criminated between (1) those terms of a contract which and when not. 
 were formal and (2) those which were of the substance 
 
 and essence of the agreement, — and (where the element 
 of time was clearly not of consequence) granted specific 
 performance of agreements after the time for their per- 
 formance had passed {z), — For example, where the pur- 
 chaser for yeans had been in the enjoyment of the property, 
 and what he wanted was merely the legal conveyance of 
 it (a): However, even in equity, time was sometimes of 
 the essence of the contract: As, firstly, where the time 
 for the completion of the contract was from the beginning 
 material, either by the express agreement of the par- 
 ties (&), or from the nature of the subject-matter (as in 
 the case of leasehold interests, reversionary interests (c-),, 
 and colliery businesses (d)); and, secondly, where the time, 
 although not originally of the essence of the contract, had 
 (by subsequent notice) been made so, — the notice being 
 reasonable and being given after the right to give it had 
 accrued (e) : Occasionally, also, the delay of the pur- 
 chaser (in the completion of his contract) was so great, 
 as to evidence an abandonment of the contract on his part 
 (irrespectively of any express stipulation as to time (/)). 
 
 (5) Trickiness. — Where the contract is tainted with (S) Where the 
 fraud, the Court will refuse relief {g)—^o that, if there ^of^.^'eTear 
 has been any positive misrepresentation (Ji) or fraudulent hands,"— but 
 
 has been 
 
 tricky or 
 
 fraudulent. 
 («) Tomlin V. Luce, 43 Ch. D. 191. 
 [y) Durham v. Legard, 34 Beav. 611. 
 («) Parkin t. Thorold, 16 Beav. 59. 
 
 (a) t^hepheard v. Walker, L. R. 20 Eq. 659. 
 
 (b) Honeyman v. Marryat, 21 Beav. 24. 
 
 (c) Walker t. Jeffreys, 1 Hare, 341. 
 {d) Macbryde v. Weekes, 22 Beav. 633. 
 
 ■. (e) Green v. Sevin, 13 Ch. D. 589. 
 (/) Mills V. Haywood, 6 Ch. Div. 196. 
 Ig) Post V. Marsh, 16 Ch. Div. 396. 
 (A) Siggins v. Samels, 2 J. & H. 460. 
 
-192 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 suppression (i) ; or if there are misleading particulars or 
 conditions (fc), or (in the case of sales by trustees) depre- 
 ciatory conditions (Z), — In any of these cases, equity will 
 refuse to enforce specific performance; and in any of these 
 cases, the person defrauded may even rescind the con- 
 tract (m) ; and the objection or requisition may be taken 
 or 'made, even ivhen out of time (w). But where a vendor 
 has a merely personal objection to A.B. as a purchaser, — 
 and will not sell to A.B. on any account; and CD. pur- 
 chases ostensibly for himself (and not for A.B.), but 
 really for A.B., — The vendor cannot, in respect of such 
 "personal" trickiness, object (semble) to convey to 
 A.B. (o), — unless, of course, the personal objection to 
 Depreciatory A.B. is something' more than personal (p^. and as regards 
 effect of. ' depreciatory conditions, a purchaser from trustee-vendors 
 is not now concerned therewith, after the completion of 
 his purchase, — unless (at the date of the contract of sale) 
 he was acting in collusion with the trustees, — trustees 
 themselves also not now being liable personally in any 
 way, for alleged depreciatory conditions, — unless the con- 
 ditions should, in fact, render the consideration for the 
 sale inadequate; and while the sale still rests in contract 
 only, a purchaser is now deprived of the right even of 
 making requisitions on the ground of the conditions of 
 sale being depreciatory (q) . 
 
 ^ar£hip*mthe (^) Hardship. — Although inadequacy in the price was 
 contract. not (except where the sale was of 'a reversionary in- 
 
 terest (r)), — and is not (except where fraud enters into 
 the contract (s)), — a ground for refusing specific perform- 
 ance, — Still a contract which would work a great hardship 
 
 (i) Shirley v. Stratton, 1 Bro. C. C. 4i0. 
 
 (k) Brewer v. Brown, 28 Ch. Div. 309 ; In re Let/land and Taylor, 1900, 
 2 Ch. 625 ; In re Maedicke and LipsJci, 1901, 2 Ch. 666. 
 
 {I) Eede v. Oakes, 4 De Gr. J. & S. 613 ; Dance v. Goldingliam, L. K. 8 
 Ch. App. 902 ; Dunn v. Flood, 25 Ch. D. 629. 
 
 (m) Broad Y. Munton, 12 Ch. Div. 131. 
 
 (n) In re Cox and Neve, 1891, 2 Ch. 109. 
 
 (o) Nash T, Dix, 1898, W. N. 32. 
 
 (p) Bonnett v. Sadler, 14 Ves. 527. 
 
 (q) 66 & 67 Viet. c. 53, a. 14. 
 
 {)•) Ferfeet v. Lane, 3 De G. F. & J. 369. 
 
 (s) Sullivan v. Jacob, 1 Moll. 477. 
 
SPECIFIC PERFORMANCE. 493 
 
 would not have been enforced (t), — Soil., because the 
 jurisdiction in specific performance is equitable and dis- 
 cretionary (?(), — Excepting that, in the case of a railway 
 company being the purchaser, the vendor is entitled {as 
 of right almost) to specific performance (x). And where 
 a mortgagee (who had foreclosed) sold inadvertently in 
 purported exercise of his power of sale (thereby losing 
 the benefit of his foreclosure), the Court declined to 
 enforce the contract («/) : Also, in the case of an award, — 
 the leave to enforce which is almost a matter of course, — 
 if there is gTeat hardship in the award, its provisions 
 will not be specifically enforced in equity (2) . 
 
 And upon this defence of hardship, these two things 
 ought to be here mentioned: Firstly, that the provisions 
 of s. 5 of the Conveyancing Act, 1881 (for the compulsory 
 discharge of incumbrances on a sale) are intended to 
 operate only where the incumbrance may be conveniently 
 discharged out of the purchase-moneys, and so as to still 
 leave a fair amount of these moneys to come to the 
 vendor (a), — That is to say, these provisions are not in- 
 tended to operate, where they would entail some great 
 hardship on the vendor (fc) ; also, nota bene, these pro- 
 visions do not secure an absolute protection from the 
 charge (c) ; and. Secondly, that the defence of hardship in 
 the contract is not an easy one to sustain, and there must 
 be enough in it to induce the Court to refrain from enforc- 
 ing the contract (d) ; and, more particularly, specific per- 
 formance will not be refused, merely because (in the events 
 which have happened since the contract was entered into) 
 the completion of the contract will operate a hardship (e). 
 
 (7) lUegalitij, dc. — There will be no specific perform- (7) The con 
 ance of an agreement which involves the breach of a prior 
 
 t) In re G. N. My. Co. and Sanderson, 25 Ch. Div. 788. 
 
 W) Morthch v. BulUr, 10 Ves. 291. 
 
 x) Eastern Counties S. C. v. Hawkes, 5 H. L. Ca. 331. 
 
 Watson V. Marston, i De G. 11. & G. 230. 
 [zj Nickels v. Sancock, 7 De G. M. & G. 200. 
 'a) In re Freme's Contract, 1895, 2 Ch. 256. 
 h) In re G. N. Ry. Co. v. Sanderson, supra. 
 
 c) In re Evans and BettelVs Contract, 1910, 2 Ch. 438. 
 
 d) Fegler v. White, 33 Beav. 403. 
 
 «) Adams v. Weare, 1 Bro. C. C. 567. 
 
 tract involves 
 the breach of 
 a prior con- 
 
494 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 tract, or a 
 breach of 
 trust. 
 
 contract (/), or a breach of trust (gr); and an injunction 
 even may be obtained, against the completion of such an 
 agreement (Ji) . But if the purchaser is told by the vendor, 
 that the so-called prior contract, of which he (the pur- 
 chaser) has notice, is not a contract at all, or not a valid 
 contract, and the purchaser is prepared to take the risk, — 
 he may complete, taking over the right of the vendor to 
 upset the prior so-called contract {i) ; and if he would 
 dispute such prior contract, he must, in fact, first com- 
 plete his own contract in order to do so (Ic) . Also, a con- 
 tract which involves an illegality will not be specifically 
 enforced, — as already mentioned on p. 474, supra. 
 
 Where there is an agreement for the purchase of land, 
 and the purchaser assigns the benefit of the agreement 
 (either by rway of mortgage or by way of absolute assign- 
 ment), the assignee ought to give the vendor notice of the 
 assig'nment, — and ought also to do all that is necessary on 
 his part in order to complete the purchase, — Because, if 
 he fail to do that, the vendor may complete with the 
 original purchaser, notwithstanding the notice {!), — or 
 may compromise apart from the assignee altogether (m) . 
 
 (8) The con- 
 tract is not 
 established, 
 because some 
 term wanting, 
 or some condi- 
 tion precedent 
 not iulfUled. 
 
 (8) No Contract. — If the alleged contract is no c-on- 
 tract, — That is to say, if the contract is incomplete as a 
 contract simply, — either from Avant of authority in either 
 party tO' enter into it (w), or because it rests in negotiation 
 merely (o) ; or (where the contract is by offer and accept- 
 ance) because the acceptance is not an absolute acceptance; 
 or because the contract is subject to some condition prece- 
 dent which has not been perform6d(p), — In any of these 
 cases, the Court will not enforce specific performance of 
 
 (/) Corbetfs case, 1905, 2 Ch. 280. 
 
 (g) Sneesby v. Thmne, 1 De G. M. & G. 399. 
 
 (A) Manchester Ship Canal v. Manchester Racecourse, 1900, 2 Ch. 352. 
 
 (») Goodwin v. Fielding, 4 De G. M. & G. 90. 
 
 (k) De Hcghton t. Money, L. B. 2 Ch. App. 164. 
 
 [1) Crabtree v. Poole, L. R. 12 Eq. 13. 
 
 im) Ridout v. Fowler, 1904, 2 Ch. 93. 
 
 in) Sawksley v. Outram, 1892, 3 Ch. 359. 
 
 (o) Sussey v. JECorne-Fayne, 4 App. Ca. 311. 
 
 (p) CoombsY. Wilkes, 1891, 3 Ch. 77. 
 
SPECIFIC PEEFOEMANCE . 
 
 the contract: But, if the condition precedent is in favour 
 of the plaintiff, and he waives it, then he may enforce the 
 contract (g) ; and a contract is not the less a contract, 
 because the parties have stipulated that a formal contract 
 shall be drawn up {r), — unless the drawing up of the 
 formal contract is made a condition precedent to the con- 
 tract becoming' effective as a contract (s) . There must 
 also, of course, b© a eufiicient certainty as regards tlic 
 'parties to the contract; but tlie vendor is sufficiently de- 
 scribed, by being called "the proprietor" {t), — although 
 not, if he is merely called "the vendor" {u); and an un- 
 certainty as to the acreage (x), or even (in the case of an 
 agreement for a lease) as to the rent {y), will not render 
 the contract invalid, if the uncertainty can be removed 
 on an enquiry. 
 
 Also, the contract may be made by an agent, — although 
 without any authority or with an insufficient authority, 
 at the time, — provided there be afterwards ratification 
 by the principal (2), and provided the ratification come 
 in due time {a) : And when the price (either for the 
 whole purchase or for any incidental part of the pur- 
 chased premises) is to be ascertained by a valuation, the 
 valuation is simply a valuation, and is not an arbitra- 
 tion (&); and where the incidental matter requiring to 
 be ascertained by valuation, is (e.gr.) the price to be paid 
 for the fixtures, &c., that may be (c), but usually is 
 not {d), of the essence of the contract. 
 
 While a contract is merely in consideration (e), or 
 while any specific provision thereof is in proposal only(/), 
 
 495 
 
 q) Non-U v. Jaclcso-n, 1 J. & H. 319. 
 r) Pilhy v. Hounnell, 1896, 2 Ch. 744. 
 j) Lloyd V. Nowell, 1895, 2 Ch. 744. 
 <) Mossiter\. Miller, 3 App. Ca. 1124. 
 li) Jamlt T. Hunter, 34- Ch. Div. 182. 
 \x) Chattock v. Muller, 8 Ch. Div. 177. 
 y) Gregory v. M%ghell, 18 Ves. 323. 
 :) Dickinson v. Dodds, 2 Ch. Div. 463. 
 » Belly. Balls, 1897, 1 Ch. 663. 
 '6 In re Cams- Wilson and Greene, 18 Q. B. D. 7. 
 c) Milnes v. Gery, 14 Ves. 400. 
 
 Richardson v. Smith, L. R. 5 Ch. App. 648. 
 e) Lncas v. James, 7 Ha. 410. 
 '/) Holland Y. Eyre, 2 S. & S. 194. 
 
496 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 there is no complete contract between the parties but only 
 negotiation; and either party may, therefore, withdraw 
 from it. 
 
 (9) The vendor 
 cannot make a 
 title, —or can 
 make only a 
 doubtful title. 
 
 Title less than 
 for f oi-ty 
 years, — care 
 relative to. 
 
 (9) Title, Want of. — If the contract relates to (or com- 
 prises) property to which the vendor is unable to make 
 a title (g) ; or if the title which he purports to make out 
 is too doubtful to be forced on a purchaser (h) ; or if the 
 vendor's title to the property is dependent upon the 
 performance by him of some condition precedent, — and 
 he has not performed same («'), or has even incapacitated 
 himself from performing it (fc) ; or if the validity of the 
 vendor's title depends upon proof of full value having 
 been given on a previous purchase (l), — or upon proof of 
 some previous purchaser having bought without 
 notice (m), — In any of these cases, specific performance 
 will be refused. But, as regards doubtful titles, if the 
 Court should choose to decide that the title is good, that 
 objection to the specific performance of the contract will 
 be removed (w); but the Court will not so decide, in the 
 face of any dicta of weight to the contrary (o) ; and the 
 opinion of one of the conveyancing counsel, although it 
 should be in favour of the title, will not remove the 
 objection to it (p). 
 
 A purchaser of lands being now (by statute) entitled to 
 a forty years' title, — and that even although recitals 
 twenty years old are evidence, — any condition of sale 
 (whereby the purchaser is restricted to a title less than 
 forty years) must be fair and open (g), — That is to say, 
 in order that the contract shall be specifically enforceable, 
 the condition must give sufficient information regarding 
 the root of title so selected, and also the reason for its 
 selection (r) . 
 
 (g) Lawriey. Lees, 7 App. Ca. 19. 
 
 (7() Fiirhe v. Waddingham, 10 Ha. 1. 
 
 (J) KichoUon v. Smith, 11 Ch. Div. 640. 
 
 {h) Sipgrove v. Case, 28 Ch. Div. 356. 
 
 [l) In re Maslcell and Goldfinch, 1895, 2 Ch. 525. 
 
 ((«) In re Handman mid Wilcox, 1902, 1 Ch. 599. 
 
 (n) Mullings v. Trinder, L. K. 10 Eq. 449. 
 
 (o) In re Thaclcwray and Young, 40 Ch. D. 34. 
 
 {p) Hamilton v. Buckmaster, L. E. 3 Eq. 323. 
 
 (}) In re Marsh and Grannille, 24 Ch. D. 11. 
 
 ()■) In re Eaedicke and Lipski, 1901, 2 Ch. 666. 
 
SPECIFIC PEEFOEMANCE. 497 
 
 When the vendor makes title through an undischarged Title, when 
 bankrupt, — or is himself an undischarged bankrupt, — and ^^^^'^f 
 the property is after-acquired property, — It appears, that, when and 
 if the trustee in the bankruptcy has not yet intervened to ^J^eiinot 
 claim the property, a purchaser from the bankrupt may 
 accept the title (if it is otherwise good) and safely com- 
 plete where the property is of leasehold tenure (s), or is 
 pure personal estate (i), or is a legacy or share of 
 residue ((<); but may not accept the title (or complete), 
 where the property is of freehold tenure (a;), or of copy- 
 hold tenure, — or is any estate or interest (whether legal 
 or equitable) derived (by the bankrupt) out of any property 
 of his own (whether freehold or copyhold {y)), — Soil., 
 unless the realty be partnership property, — which is, for 
 this purpose, regarded as personalty {z). 
 
 Generally, an undischarged bankrupt can give valid Subsequent 
 receipts for moneys earned by him (or otherwise coming ?''^?^\°i. 
 to him) subsequently, — but may be ordered to pay over Ms title to. 
 these moneys to the bankruptcy trustee (a) ; and the bank- 
 ruptcy trustee may also follow these moneys into the 
 hands of any volunteer receiving them, — but Hot into the 
 hands of a payee thereof for value (even although the 
 payee for value should have notice that the payer is an 
 undischarged bankrupt (6)): Also, on the death of the 
 bankrupt (still being undischarged), his legal personal 
 representative may {semble) pay over and distribute his 
 personal estate, to and among the beneficiaries entitled 
 thereto (whether as legatees or as his next of kin), — 
 Subject only to this, namely, that these beneficiaries may 
 afterwards be called upon (by the bankruptcy trustee) 
 to refund to him all these payments to them(c): And 
 as regards (more particularly) the personal earnings of 
 an undischarged bankrupt, — These are his to deal with 
 {Soil., until the bankruptcy trustee intervenes); and he 
 may spend them (in a reasonable way) on himself and 
 
 (s) III re Clayton and Barilai)' s Contract, 1895, 2 Ch. 212. 
 
 it) C<.hm V. Mitchell, 25 (J. B. D. 262. 
 
 («) Sunt\. Fripp, 1898, 1 Ch. h75 
 
 (x) In re New land Co. and Qraii. 189?, 2 Ch. 138. 
 
 (V) Preston's Trustee v. Couke, 19' '6, 2 Ch. 661. 
 
 (2) In re Kent County Gas L>aht Co., 19119, 2 Ch. 195. 
 
 (a) Wadling v. Oliphant, 1 Q. B D. 145. 
 
 (b) In re Behi-end's Tru^t, Surman v. Bidddl, mil, 1 Ch. 687. 
 
 (c) In re Bennett, Ex parte U. R., 19U7, 1 K. B. 149. 
 
 S. K K 
 
498 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 Eights of 
 entry in 
 tamkrupt, — 
 vesting of, in 
 trustee. 
 
 Discharge, 
 order for, — 
 effect of. 
 
 his family, and in payment of his business outgoings; but 
 if and so far as the bankrupt does not so spend them (but 
 saves them up and invests them), the bankruptcy trustee 
 vCan claim the investments which represent them (d) . 
 However, as regards all the after -acquired property of 
 an undischarged bankrupt (being property acquired by 
 him in the course of his subsequent trading), — although 
 the title of the bankruptcy trustee to that (when he in- 
 tervenes to claim it) is good, — still his title is subject to 
 the subsequent trade-creditors being first satisfied their 
 debts out of such after-acquired property (e) . 
 
 Property which is the bankrupt's already at the date 
 of his bankruptcy is, of course, not after-acquired pro- 
 perty within any of the above rules (/); and where a 
 bankrupt, at the date of the bankruptcy, was entitled 
 already to certain freehold lands, — but had been dis- 
 possessed thereof, and had only a right of entry for the 
 recovery of the possession, the right of entry was held 
 to have vested in the bankruptcy trustee; and the bank- 
 rupt having sold and conveyed the lands to A.B. as the 
 purchaser thereof, and A.B. having afterwards (by eject- 
 ment) recovered the possession of the lands from the 
 adverse possessor thereof, the bankruptcy trustee was held 
 to be entitled to recover over the possession from A.lB., 
 — That is to say, the right of entry in the bankruptcy 
 trustee was paramount to the title which A.B. had 
 acquired from the bankrupt (g) . 
 
 Where a bankrupt has obtained his discharge, he is 
 no longer an undischarged bankrupt, although his bank- 
 ruptcy should not yet have been " closed" — and he is 
 therefore free to deal with his after-acquired property, 
 and the bankruptcy trustee has no right to intervene as 
 to that {h) : Also, when a bankruptcy is annulled, all 
 the bankrupt's property (which has meanwhile vested in 
 the bankruptcy trustee) is, by order, re-vested in the 
 bankrupt («"). 
 
 (d) Ex parte Vine, In re Wilson, 8 Ch. D. 364. 
 
 (e) Trminhtm v. Gilky, Amb. 629. 
 
 (/) In re Calcot. and Slvin, 1898, 2 Ch. 460. 
 Ig) Jnikim V. Jones, 9 Q. B. D. 128. 
 
 (h) Ebhs T. Boulnois, L. R. 10 Oh. App. 479 ; Bankruptcy Act, 1883^ 
 . 44. 
 («) Fearce v. Bullard, 1908, 1 Ch. 780. 
 
SPECIFIC PERFORMANCE. 499 
 
 Usually, the title which, the purchaser may require, is 'JGoodholding^ 
 only such a title as the conditions of sale entitle him to (jc) ; *'*'®"" 
 and where the title depends (for its validity), upon proof 
 that the seller had no notice himself of an incumbrance 
 when he completed his own original purchase, the title is 
 (or may be) a "good holding title,"— although it may be 
 difficult for the purchaser to show, that the seller had in 
 fact no notice at the time. Also, a restrictive covenant 
 is like an incumbrance in that respe2t(?), — or is like an 
 easement affecting the property, — and will therefore pre- 
 vail, even against a purchaser buying without notice (m) ; 
 but the legal estate will protect him (w) : Also, anyone 
 acquiring title by adverse possession acquires, in general, 
 subject to the easements (if any) on the property (o). 
 
 Usually, where a vendor contracts expressly to give a "Marketable 
 marketable title, that obliges him to get rid of any restric- wise'caiieda^' 
 tive covenants or conditions which may affect the land, "Good title." 
 even although the purchaser may have known of them 
 at the date of the contract and of the practical impossibility 
 of obtaining any release of them (p) . But where the 
 contract is not express and absolute in that respect, and 
 there are (to the purchaser's knowledge) restrictive cove- 
 nants which are practically irremovable, the purchaser will 
 be taken to have purchased subject thereto (g), — at least, 
 in general (r) : And where the defect is one of convey- 
 ance only and not of title, the purchaser, before he re- 
 pudiates on that account, must give the vendor a reason- 
 able opportunity of removing the defect (s). Also, upon 
 the sale of a public-house with the licences attached 
 thereto, it is sufficient, if the licences are valid at the date 
 appointed for the conveyance in completion of the con- 
 tract {t) ■ Also, a purchaser is not entitled (nor is it wise 
 
 [k) Hume v. Foeock, L. R. 1 Ch. App. 379. 
 
 (1) Cato V. Thompson, 9 Q. B. D. 61ii. 
 
 (m) Nottingham Co. v. Butler, 18 Q. B. D. 778. 
 
 (n) Wilkes V. Spooner, 1911, 2 K. B. iTA. 
 
 \o) In re Nisbet and Potts, 19U6, 1 Ch. 386. 
 
 (p) Cato v. Thompson, supra. 
 
 {</) Mlis V. Sogers, 29 Ch. D. 661. 
 
 (»-) In re Gloag and Miller, 23 Ch. D. 320. 
 
 («) Hatteri V. Smsell, 38 Ch. D. 334. 
 
 \t) Tadcaater Brewery Go. v. Wilson, 1897, I Ch. 705. 
 
 kk2 
 
,500 
 
 THE ORIGINALLY CONCUERJINT JUEISDICTION. 
 
 of him) to make "fanciful objections" to the title, — re- 
 quiring evidence, e.g., on a sale of leaseholds, that the 
 proviso for re-entry has not been enforced, vsfhere there 
 is nothing to suggest any forfeiture on that account (u) ; 
 but where any well-grounded suspicion arises on the ab- 
 stract, he may legitimately enough require evidence to 
 remove the suspicion (x) . 
 
 Keatrictive 
 coTenants, — 
 obligation of ; 
 also repudia- 
 tion on 
 account of. 
 
 Where property is sold in lots to different purchasers, 
 ■ — whether at one sale or at successive sales, but according 
 to one general " building scheme " (y), — In such a case, the 
 intention (and, in fact, the contract) of the parties is, that 
 each of the purchasers shall have the riglit of enforcing 
 against tire other purchasers the restrictive covenants and 
 conditions comprised in the building scheme; and each 
 purchaser may sue to enforce such covenants accord- 
 ingly (z) ; and in the case of any unsold lots, the vendor 
 himself is, and (until the sale thereof) remains, bound by 
 these covenants, equally as the purchaser of them would 
 be (a) : Therefore, in such a case, where a subsequent pur- 
 chaser from one of the original purchasers, contracts 
 absolutely for the, fee simple free from incumbrances, ho 
 may (on discovering the existence of the restrictive cove- 
 nants) not only reject the title, but also rescind the con- 
 tract (b), and recover back his deposit (c), — and he will 
 not in such a case be liable in damages for breach of con- 
 tract (d) . But these rules are inapplicable to covenants 
 which are purely personal and collateral, — and they am, 
 — usually (e), but not invariably (/), — inapplicable to 
 sales of pure personal estate (gr). Also, they are inap- 
 
 (m) Maliriff v. Sill, 1 Cox, 186. 
 
 {x) III re Home and Hellard, 29 Ch. D. 736. 
 
 (;/) Btidy. Bicherslaff, 1909, 2 Oh. 305, approving Mllistmiy. Readier, 
 1908, 2 Oh. 374, 665. 
 
 (z) Collim V. GcMle, 36 Ch. D. 243. 
 
 {a) Re Allday's Contract, 1893, 1 Ch. 342. 
 
 (A) Wanton v. Coppard, 1899, 1 Ch. 92. 
 
 (c) In re While and Smith's Contract, 1896, 1 Ch. 637, 
 
 Id) Molyneux v. Hawtrei/, 1903, 2 K. B. 487. 
 
 («) Phillips V. Miller, L. K. 10 0. P. 420. 
 
 (/) McGruther's ease, 1904, 2 Ch. 306; Mcnck's ease, 1911 A C 
 336. 
 
 (g) TaddyUcase, 1904, 1 Ch. 354. 
 
SPECIFIC PEEFOEMANCE . §01 
 
 plicable, even as regards land, if there is no building- 
 scheme, in fact (h) . 
 
 As regards street improvements (and the liability to Street im- 
 pay the proportion of expenses therefor apportioned to HabluS-^fOT' 
 the purchased premises, or the charge for the apportioned and whether a 
 part of these expenses), — These expenses are " outgoings,'" '^'*^^^s^ or not. 
 and the occupying tenant may (under his contract to pay 
 and discharge all ''outgoings") be liable to, pay the 
 charge, in exoneration of the vendor (^), — and inci- 
 dentally, therefore, in exoneration of the purchaser also: 
 But, usually, the tenant is not now liable, for (at least) 
 the whole of these apportioned expenses; and so far as 
 the occupying tenant does not pay them, these outgoings 
 are (as between the vendor and the purchaser) a charge 
 (in the nature of an incumbrance) on the property, — the 
 charge taking effect, either (1) as from the time when 
 there is a liability on some one to either execute the im- 
 provement (/o), or to pay for it(^); or (2) as from the 
 date of the completion of the works and before any 
 final apportionment of the expenses (m) : And under an 
 " open contract," the charge falls, in general, on the 
 vendor (w); and if the vendor was selling as tenant for 
 life under the Settled Land Act, 1882, the charge would 
 fall on the inheritance (o), — But, in either case, the pur- 
 chaser must be relieved of the charge, although where 
 the liability is a mere personal liability, a covenant of 
 indemnity against it will, ordinarily, sufiioe(p). 
 
 And note, that these outgoings in respect of street im- EeooveraWe 
 provements, whether they amount or do not amount to a l^^^^ ^^ 
 charge on the property, are summarily recoverable before proceeding ; or 
 the justices, — and within, in general, six months (q), and (2) By action, 
 not afterwards; but where they amount to a charge on 
 the property, they are also otherwise realisable out of 
 
 (A) BeidY. Btclsentaf, supra; Willev. St. John, 1910, 1 Ch. 84, 325. 
 
 (j) H'ix T. MuUon, lb9n, 1 Q. B. 474. 
 
 {k) Tubhs v. Wynne, 1897, 1 Q. B. 74. 
 
 [1) Aylttt's case, 1905, 2 K.. B. 22. 
 
 {in) In re Allen and Lriaeoll's Contract, 1904, 2 Ch. 226. 
 
 [n) In re Eiyhelt and Bird, lh03, 1 Ch. 287. 
 
 (o) In re Fizzi, 1907, 1 Ch. 67. 
 
 [p] Jiyg ■^- Blayney, 21 Q. B. D. 107. 
 
 (?) West \. Bumiinau, 14 Ch. D. 111. 
 
502 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 the property, — ^just like ordinary charges and incum- 
 brances are, — by action for a declaration of charge and 
 for a sale to realise the charge (r) . 
 
 Conditions In contracts for the sale of land, it is not unusual to 
 
 compensation insert a Condition, that the lots are believed to be correctly 
 foradeficiency described as to acreage, and that no compensation shall be 
 constmctfon" either paid or received for or in respect of any discrepancy 
 of. in the acreage; and, in such a case, if a very considerable 
 
 deficiency in the acreage is discovered before completion, 
 the purchaser sometimes insists upon compensation for 
 the deficiency, notwithstanding the condition, — and some- 
 times he claims to repudiate the contract, on the ground 
 of the deficiency, alleging that the condition was in- 
 tended to refer merely to slight discrepancies of acreage, 
 and that otherwise it would cover even a defect of title 
 and be an engine of fraud (s) : Now, in cases of that 
 sort, the purchaser cannot enforce specific performance 
 with compensation, nor can the vendor do so without 
 compensation (t) ; and in case the purchaser completes, 
 he will not (after completion) be entitled to compensation 
 as for a defect of title (u), his only remedy being to 
 repudiate the contract before completion (a;); and the 
 vendor's remedy (if any) is to rescind (y) . 
 
 Conveyance, 
 when to be 
 settled by the 
 Court. 
 
 Where the Court decrees specific performance, it, 
 usually, directs the conveyance (in execution of the con- 
 tract) to be settled in chambers, in case the parties differ 
 as to the same or as to any open clause therein; but any 
 open clause, if sufiiciently in issue on the pleadings, will 
 be decided by the Court itself at the trial of the action (z) . 
 And, where the restrictive covenants and conditions 
 affecting the property are not disclosed by the contract 
 itself, — but only appear by the abstract of title which 
 is subsequently delivered, — It is not right, in the general 
 case, to refer to them at all in the conveyanoe (a), — a 
 
 (r) West Ham v. Sharp, 1907, 1 K. B. 445. 
 
 (s) Jacobs V. Eevell, 1900, 2 Ch. 858. 
 
 {t) In re Fawcett and Holmes's Contract, 42 Ch. Div. 150. 
 
 (m) Dehenham v. Sawbridge, 1901, 2 Ch. 98. 
 
 («) Jacobs V. Revell, 1900, 2 Ch. 858. 
 
 (y) Whittemm-e v. Whiltemore, L. R. 8 Eq. 603. 
 
 (z) Hart V. Hart, 18 Ch. Div. 670. 
 
 [a) In re Monckton and Cfilzean, 27 Ch. D. 555. 
 
SPECIFIC PERFORMANCE. 503 
 
 rule which applies also to the liability of the property for 
 the repair of {e.g.) a boundary wall (6); but the con^ 
 tract of sale may express, that the conveyanos shall be 
 made subject to the restrictive covenants and condi- 
 tions (c). The vendor must, of course, deliver the due 
 conveyance to the purchaser (t^); and the purchassr may 
 or may not be entitled to have a plan on his convey- 
 ance (e). 
 
 Possession is not usually given pending a suit for Possession not 
 specific performance; and the vendor (remaining in pos- "^''^jjf ^^t°' 
 session) is (to some extent) a trustee for the purchaser, — for specific 
 and must preserve the estate (/), and also re-let it, if need performance, 
 should be {g) ; but he is not liable for wilful default, 
 like as a mortgagee (entering into the possession) would 
 be {¥). On the other hand, where the purchaser obtains 
 possession before completion, and a suit for specific per- 
 formance is afterwards commenced, he is, ordinarily, 
 given the option, either to go out of possession or to pay 
 the purchase-money (^), — or (as the case may be) the 
 instalments of the purchase-money (fc), — into Court; but 
 he will not be allowed this option where he has {e.g.) 
 diminished the value of the property, but will be required 
 to pay the agreed purchase-money into Court (Z). 
 
 Possession may, of course, always be given before com- Possession, 
 pletion, upon terms (m); and a public company, by pur- ^^^S^^J 
 suing the terms in that behalf appointed by the Lands given. 
 Clauses Act, 1845, may always obtain immediate pos^ 
 session; but if the company does not pursue those terms, 
 hut contracts for the purchase in the ordinary way, 
 it will hot be entitled (save upon agreed terms) to have 
 the possession given to it pending the action for specific 
 performance {n) . 
 
 (b) Hardman v. Child, 2S Ch. D. 712. 
 
 (c) FollocJc V. Eabhits, 21 Ch. D. 466. 
 (i) Stone V. Smith, 35 Ch. D. 188. 
 
 (e) In re Sansom and Narbeth. 1910, 1 Ch. 741. 
 
 (/) Fhiltip- V. Silvester, L. R. 8 Ch. App. 173. 
 
 Iff) Roual Sristol V. Bomask, 35 Ch. D. 390. 
 
 (h) Bennett v. Stove, 1903, 1 Ch. 509. 
 
 (j) Greemooodv. Turner, 1891, 2 Ch. 144. 
 
 (A) Dixon V. Astletf, 19 Vee. 564. 
 
 (?) Lewis V. James, 32 Ch. Div. 326. 
 
 \m) Cook V. Andrews, 1897, 1 Ch. 266. 
 
 («) Bygrate v. Metropolitan Board of Works, 32 Ch. Div. 147. 
 
504 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 Interest on 
 unpaid 
 purchase- 
 money, — 
 liability for : 
 (1) where 
 possession 
 taken ; 
 
 Generally, the .effect of taking possession before com- 
 pletion is, that (subject to anything to the contrary in the 
 conditions of sale) the purchaser becomes liable for all the 
 "outgoings" (if any); and (unless whore there has been 
 wilful default by the vendor) the purchaser must pay also 
 interest on his purchase-money (remaining unpaid), even 
 although the property should be producing less than the 
 amount of the interest, or should be producing, in fact, 
 no profit at all, and should even be " damnous " (o): And 
 such taking of possession amounts also, in general, to an 
 acceptance of the title, — at least, upon a sale by the 
 Court (p), — That is to say, the taking of possession is 
 evidence of the purchaser's acceptance of the title, 
 although the evidence may be rebutted. 
 
 (2) wiiere And, more particularly, as regards the purchaser's lia- 
 
 taken.^'™'^° bility for the interest on his purchase-money remaining 
 unpaid, he is, in general, liable to pay that, whether he 
 has taken possession or not: Also, the interest is to be com- 
 puted, as from the date fixed for the completion of the 
 purchase, — and where no specific day is fixed, then as 
 from the date at which he could first have safely taken 
 possession (q) . And these rules apply, although the pro- 
 perty purchased should be reversionary (r), — or should be 
 otherwise producing less than the amount of the interest, 
 — and even although the exact amount of the purchase- 
 money has not yet been ascertained (s), — purchase-money 
 being (in this respect) different from compensation 
 money (if). But an agreement to give possession by a 
 specified day implying that a good title shall have been 
 Effect, as to shown by that day (?(), — Therefore, if the vendor is in 
 ™iidor isln*'^ default in .that, he will disentitle himself to the interest 
 default. which he would otherwise have been entitled to (x) ; and 
 
 if the default of the vendor consists in his not having 
 delivered the abstract of title on the day in that behalf 
 
 (o) Ballard v. Slrutt, 1.5 Ch. D. 122 ; Bennett v. Stone, supra. 
 
 {p) In re Ghag and Jliller's Contract, 23 Ch. D. 320. 
 
 (q) Hiillcett V. Dudley (Earl). I9(l7, 1 Ch. 590. 
 
 (r) Ex parte Manning, 2 P. Wms. 410. 
 
 (.«) Fletcher y. Lancashire, i-c. It. C, 1902, 1 Ch. 901. 
 
 [t) In re liirhard and Great H'estern H. C, 1905, 1 K. B. 68. 
 
 (u) Titley v. Thomas, L. R. 3 Ch. App. 61. 
 
 (*•) Jones V. Gardiner, 1902, 1 Ch. liil. 
 
SPKCIFIC PERFORMANCE . 
 
 505 
 
 appointed, the puichaser will have au exactly correspond- 
 ing extension of the time for completing {y) . 
 
 Sometimes, in order to save the future interest on the Payment of 
 unpaid purchase-money (and to reduce the liability of the ^"^n^^j^to g, 
 purchaser for that), the purchaser pays the unjDaid bank,— 
 purchase-money into the bank, and gives the vendor notice °^^eff"ct°of 
 of that payment, and claims thereafter to be liable for 
 the interest only at the rate (if any) allowed by the bank, 
 — Which claim (apart from any express provision for it in 
 the contract) is worth only what it is worth (that is, 
 nothing, — Scil., if the vendor is not in default (z)). At 
 other times, the unpaid jjurchase-money is (by consent 
 of both vendor and purchaser) paid into and invested in 
 their joint names, and upon the purchase being afterwards 
 completed, the vendor takes the interim dividends which 
 have accrued on the investment, and also (for better or 
 worse) the capital of the investment, — for better, if the 
 value thereof has meanwhile improved (a); and for worse, 
 if the value thereof has meanwhile depreciated (6), — or 
 (through the bank breaking) has been lost(c). 
 
 On completion of the purchase, the vendor must deliver Title deeds,— 
 up to the purchaser all the title deeds which relate delivery of, 
 exclusively to the purchased property {d), — or which (as completion, 
 between the vendor and the purchaser) become the pro- 
 perty of the purchaser; and he must do so, even where 
 the vendor is and remains liable to any previous 
 purchasers for the production of these title deeds to 
 tliem (e): But upon a sale in lots, the title deeds (when 
 not retained by the vendor) are delivered over to the 
 principal purchaser; and the other purchasers get (at the 
 most) " attested copies " thereof, with an acknowledg- 
 ment of their right to production. 
 
 Where the title deeds of the vendor are with his Purchase, 
 bankers, — by way of security for his current account with compMiou of, 
 
 (y) Sherwin v. Shakspear, 5 De G. M. & G. 517. 
 
 (z) In re B -W. i- Co., 1909, 1 Ch. 648. 
 
 [a) Burroughes v. Broivn, 9 Ha. 609. 
 
 [b) Acland v. Gaisford, 2 Madd. 28. 
 
 [c) St. Faul V. Birminyham R. C, 11 Ha. 305. 
 [i) Duthy V. Jesson, 1898, 1 Oh. 419. 
 
 \e) Williams v. Neivemtlc (Buehess), 1897, 2 Ch. 144. 
 
 of deposit of 
 title-deeds. 
 
S06 
 
 THE ORTGINALLY CONCURRENT JURISDICTION. 
 
 them, — and the purchase is on the point of completion, 
 the purchaser may not (with safety) pay over his pur- 
 chase-money to the vendor until the bank is first paid (or 
 else settled with), — and if his purchase-money is payable 
 by instalments, he may not pay over any instalment even; 
 but if he have notilied his purchase to the bank, he need 
 not concern himself with any subsequent advances made 
 by the bank to the vendor (i.e., with advances made sub- 
 sequently to the notification of Ms purchase (f)) . The 
 bank may, of course, be asked in such a case to release the 
 purchased property, — and (for that purpose) to concur 
 in the conveyance to the purchaser, — as where the purchase 
 comprises only some small part of the premises comjDrised 
 in the title deeds which are in mortgage by deposit with 
 the bank: 
 
 Repudiation 
 of contract by 
 purchaser, — 
 effect of. 
 
 The purchaser may repudiate the contract for sufficient 
 cause (g) ; and even after a decree for specific perform- 
 ance, he may with the leave of the Court, repudiate (h), — 
 and he may, in general, repudiate on any one or more of 
 the nine grounds above particularised for resisting specific 
 performance (i); but he must repudiate speedily, if he is 
 to do it at all (fc) ; and a defence which is sufficient for 
 resisting performance, is not (in all cases) a sufficient 
 ground of repudiation. In case the purchaser has had just 
 and sufhcient ground for his repudiation, he will be 
 entitled to the return of his deposit (Z); and if the sale was 
 under the direction of the Court, he will get his costs and 
 expenses also (m). But in case the purchaser should have 
 repudiated without just and sufficient cause, he will be 
 liable to the vendor in damages (n), and his deposit will 
 be forfeited, whether the contract shall, or shall not, have 
 expressly provided for such forfeiture (o); and a pur- 
 chaser may also otherwise be disentitled to recover his 
 
 {/) Z. ^ C. Bank v. SateUffe, 6 App. Ca. 722. 
 
 (g) Brewer v. Brown, 28 Ch. D. 309. 
 
 (h) Ealhett v. Dudley (Earl), 1907, 1 Ch. 590. 
 
 (i) IJnpe V. muter, 1900, I Ch. 257. 
 
 {!c) Ealleett v. Dudley [Earl), supra. 
 
 \l) In re Terry and White's Contract, 32 Ch. Div. 14. 
 
 (;k) HoIUkcU'v. Seacombe. 1906, 1 Ch. 426. 
 
 («) Noble V. Edwards, 5 Ch. D. 378. 
 
 \o) Howe V. Smith, 27 Ch. D. 89. 
 
SPECIFIC PERFORMANCE. 
 
 507 
 
 deposit {p): And where there is a valid condition of sale, 
 requiring the purchaser to assume something material to 
 the title, and the matter required to be assumed is (in 
 fact) untrue, these two things follow, namely, — The pur- 
 chaser (on his part) is debarred from recovering his 
 deposit (g) ; and the vendor (on his part) is debarred from 
 specific performance (r) . 
 
 As regards repudiation (otherwise rescission) by the Eesdssionof 
 vendor, — There is, usually, an express condition of sale vendor,— 
 in that behalf: Under which, in case the purchaser takes ^^f^\°V' '^^^° 
 any objection or makes any requisition ivhich the vendor 
 is either unable or unwilling to comply with, the vendor 
 has a right to rescind; and in a specific performance action 
 by the vendor as plaintifi, if the defendant eventually fails 
 to complete, the vendor becomes entitled to rescind (s). 
 Also, generally, a vendor, if he have some title (t), and 
 is acting honestly and not arbitrarily (u), is justified in 
 inserting in the contract a condition giving him the right 
 to rescind (x) ; and he may or may not make the exercise 
 of the right dependent upon the purchaser's withdrawing 
 or not the objection or requisition (y). But under a con- 
 dition for rescission, the vendor may not " play fast and 
 loose," holding his right of rescission in suspense, while 
 negotiating with some third person for a re-sale (z); nor 
 may he rescind after litigation accepted (a), or after 
 judgment on a Vendor and Purchaser summons to b© 
 presently mentioned (&). Also, any mere dispute as to 
 the form of the conveyance, is not a ground for rescis- 
 sion (c), unless the condition expressly gives the right in 
 such a case (d), — but it would not, as a general rule, be 
 
 p) Ellis V. GouUon, 1893, 1 Q. B. 350. 
 'q) Bet V. Hamond, 12 Ch. D. 1. 
 V) Broad V. Munton, 12 Oh. D. 131. 
 a) aide V. am, 1904, 1 Ch. 35. 
 t) Buddell-v. Simpson, L. R. 2 Ch. App. 102. 
 u) In re Weston and Thomas, 1907, 1 Ch. 244. 
 x) In re Beighton and Harris, 1898, 1 Ch. 458. 
 
 Ashburner v. Sewell, 189 1 , 3 Oh. 405. 
 ;z) Smith V. Wallace, 1895, 1 Ch. 385. 
 '«) Isaacs y. Towell, 1898, 2 Ch. 285. 
 '*) In re Arbih and Class's Contract, 1891, 1 Ch. 601. 
 
 c) In re Judd and Poland, 1906, 1 Ch. 684. 
 
 d) In re Monckton and Gihean, 27 Ch. Div. 555. 
 
o08 
 
 THE ORIGINALLY CONCUEEENT JURISDICTION. 
 
 Kescission, or 
 coznpensatloii, 
 — at suit of 
 purchaser. 
 
 proper to make the condition extend to tliat(e). Also, 
 apart from any special condition entitling him to do so, 
 the vendor cannot rescind for mere delay in payment of 
 the instalments of the purchase-money (/), — unless the 
 delay is evidence of a total abandonment of the con- 
 tract (gf) . 
 
 Usually, where the defect in the title is the existence of 
 restrictive covenants and conditions, the purchaser's 
 remedy is to rescind {h), — but he may sometimes (i), 
 althoug-h not usually (fc), have specific performance with 
 an abatement of his purchase-money: Where the contract 
 of sale contains, — and usually it contains, — both a rescis- 
 sion clause and a compensation clause, the vendor may (by 
 a valid rescission) escape altogether from the compensa- 
 tion, the whole contract being determined by the rescission 
 (if justified by the rescission-clause (Z)). 
 
 Where the vendor rescinds for the purchaser's default, 
 and the condition under which he rescinds extends (as it 
 usually does) to enabling the vendor to, in such a case, 
 re-sell, and charge the defaulting purchaser with the 
 deficiency on a re-sale, if a deposit has been paid by the 
 purchaser, then (although the deposit is expressed to be 
 forfeited) it must be allowed in computing the deficiency, 
 where there is a deficiency, on the re-sale (m) . 
 
 The Vendor By the Vendor and Purchaser Act, 1874 (w), s. 9, upon 
 
 Tt'^s7?*^^q a sale of real or leasehold estate, the vendor or the pur- 
 — remedial " ' chaser (or their representatives) may apply (on summons 
 jurisdiction jjj (-]j^g Chanoery Division), — Regarding any requisitions 
 extent thereof . on (or objections to) the title; or regarding any claim to 
 compensation; or, generally regarding any other question 
 arising out of or connected Avith the contract, — not being 
 
 Deposit, 
 although for- 
 feited,— to he 
 allowed 
 against the 
 deficiency on a 
 re-sale. 
 
 if) 
 (/) 
 (9) 
 (A) 
 
 (0 
 [Ic) 
 
 (I) 
 
 H 
 
 Vezeij 
 
 Eardman t. Child, 28 Ch. Div. 712. 
 
 Cornwall v. Senson, 1900, 2 Ch. 298. 
 Soperv. Arnold, 37 Ch. T). 96. 
 JinddT. La.ieelle«, 1900, 1 Ch. 81.5. 
 Westmacott v. RMm, 4 De G. F. & J. 390. 
 Ashburricr v. Scirell, fufpra, 
 Bollhocn V. Seaeomhe, 1906, 1 Ch. 426. 
 
 tilmttleworlli v. O/ews, 1910, 1 Ch. 176, disapproving Gh'iJ 
 . 1906. 1 Ch. 796. 
 37 & 38 Vict. 0. 78. 
 
SPECIFIC PERFORMANCE. 509 
 
 a question affecting the existence (or initial, validity) of 
 the contract itself: And the judge may, on the hearing of 
 the summons, make such order "as to him shall appear 
 just," — answering, of course, also the specific question or 
 questions submitted by the summons (o) ; and the Court 
 has power also to direct such things to be done as are the 
 natural consequences of its decision on the summons: For 
 example, when the Court decides, that the vendor has not 
 shown a good title, it can go on and direct the vendor 
 to return to the purchaser his deposit (p), with interest 
 thereon (q), and to pay also the purchaser's costs of inves- 
 tigating the titLe (r) . 
 
 Usually, also, the Court will expressly rescind the con- 
 tract, — where the ground of objection is sustained on the 
 hearing of the summons, — and it is a sufficient ground for 
 rescinding: But, if damages ultra are claimed, the Court 
 cannot give these also at the hearing of the summons, — 
 but leaves the parties to pursue their legal remedy there- 
 for (s), — Because, generally, on a vendor and purchaser's 
 summons, the Court cannot award damages (properly so 
 called), for misrepresenting (e.g.) that the drains and 
 sanitary appliances were right (i). However, the deci- 
 sion of the Court, as to the title, is equally conclusive 
 when given on the summons, as when given in an action 
 commenced by writ (m) . 
 
 (o) In re IFallis and Barnard's Contract, 1899, 2 Cli. 515. 
 
 ( //) In re Hargreaves and Thomson's Contract, 32 Ch. Div. 454. 
 
 (j) In re Mtley and Streaffield' s Contract, 3+ Ch. Div. 386. 
 
 (r) In re Spindler and Mear, 1901, 1 Ch. 908. 
 
 (s) In re Scott and Alvarez's Contract. 1895, 2 Ch. 603. 
 
 (t) Be Lassalle v. Guildjord, 1901, 2 K. B. 215. 
 
 (») In re Scott and Alvarez, supra. 
 
510 
 
 CHAPTER X. 
 
 INJUNCTION . 
 
 Injunction, 
 nature of 
 relief hy. 
 
 An injunction, which used to be a writ issuing under an 
 order of the Court, is now simpl}' an order of the Court, 
 issuing in the discretion of the Court (a), — whereby the 
 Court restrains the commission of some wrongful act, — 
 or its continuance, — or the continuance of some wrongful 
 omission; and the order is, in general, preventive rather 
 than restorative, — but may (in exceptional cases) be re- 
 storative (a) : For example, if the wrongful act has been 
 done in anticipation of the injunction (fe), and after due 
 warning (e), the injunction is restorative, otherwise man- 
 datory, — to pull down (e.g.) and to spend money in doing 
 so (d) . 
 
 Two classes 
 of iniunctions, 
 — prior to 
 Judicature 
 Acts. 
 
 Equity would have interfered by injunction either to 
 prevent the inequitable institution (or continuance) of 
 judicial proceedings, or to restrain wrongful acts i)i pais ; 
 but, under the Judicature Act, 1873 (e), s. 24, sub-s. 5, 
 no cause or proceeding pending in the High Court of 
 Justice, is now to be restrained by injunction (excepting 
 in a winding-up proceeding, after order made); but 
 every matter of equity (which would formerly have been 
 ground for an injunction) may now be pleaded by way 
 of defence to the action; and the Court (before which the 
 action is pending) may also direct a stay of the proceed- 
 ings in the action, or may make such other order as shall 
 
 (a) Sedleu v. Webb, 1901, 2 Ch. 126. 
 
 (b) Van Joel II. Hornmj. 1895, 2 Ch. 771. 
 
 (c) Coles V. Sims, 5 De G. M. & O. 1. 
 
 (d) Powell V. Hemsleii, 1909, 1 Ch. 080. 
 
 (e) 36 & 37 Vict. u. 66. 
 
IXJTXCTIOX. -511 
 
 appear to be just (f : Also, by the same Act. s. 25, sub- 
 s. S, an injunction may be granted, — or a rec-eiver ap- 
 pointed, — and (if need be' both an injunction and a 
 receiver 'g . — by an interlocutory order of the Court, — 
 in all cases in which it shall appear to the Court to be " juM 
 or coraenient.'' that su:h order should be made, — asainst 
 any threatened or apprehended waste or trespass, and 
 irrespectively of the circumstance of the estates of the 
 parties being legal or equitable (A), and whether the 
 plaintiff or the defendant is in the possession {i But 
 the Judicature Acts have not given power to issue an in- 
 junction, in a case where (prior to the Acts) no Court 
 had any jurifriictioa in that behalf, — ^to restrain (e.g.) 
 a party from proceeding with an arbitration /« a matter 
 heyorM the agreement to refer tjc] ; or to restrain a party 
 from proceeding (without any authority whatever^ in an 
 arbitrati'::: in the name of another (r, — SciJ.. because 
 you may afterwards either plead the nullity of the award 
 if you are made defendant to an action to enforce it (m^'. 
 or you can 'as plaintiff) obtain a declaration of su-h 
 nullity (n 
 
 It is to be remembered always, that a Court of Equity, injnncticiis to 
 
 where it srantei an injunction against anv proceeding the common 
 ri ~^ e 1 1 ■ ■ 1 ^Tx law Courts, 
 
 m a Ooart of common law, ica-s restraining only the 
 
 parti ti, — and not the Court (o): For example, where an ;r instm- 
 
 instrument had been obtained by fraud or undue in- J**^^"^}^*™^ 
 
 fluence, the Court would restrain the parties from bring- 
 
 nnia? 
 
 JTig an action at law on it (p) : or. if an executor or "^"eu«- 
 administrator had had sufficient assets to pay all the debts (2) !-':•=; • 
 of t!ie deceased, and by an accidental fire or by a robbery 
 jcithout any default on his part a great portion of the 
 assets was afterwards destroyed or lost, the Court would 
 restrain the creditors from proceeding at law against the 
 
 ( f) y-Tton V. y-irfon, 189K, P. 36. 
 
 (f)- Z'oy/s Bm-l v .V»fira- Xanaaiion, 190-5, 2 K. B. 359, 
 
 (A) Jhn V. John, 1^?S. 2 Ch n73. 
 
 (i) TaVnt t. H oe-Scoit, 4 K, & J, 96, 
 
 a Xorh I/^on B. r. T. Great Xorfhtm S. C. 11 Q. B. D. 30. 
 
 T parrar v. Oor-tr. 44 Cb. Div. 323. 
 
 {nii Titty t. BrmciTigg, 10 Ch. D. 294. 
 
 (n) J. H. i Co. T T.. 1909, 2 K. B. 948. 
 
 (o) Fad of Oi'r.rn s ea»r, 1 Ch Bep- 1, 
 
 (p) Tyler t, Tatea, L. B. 11 Eq, 265. 
 
512 
 
 THE ORIGINALLY CONCUERENT JURISDICTION. 
 
 (3) Equitable Bxecutor (g) . Also, whcre a plaintiff at law had merely 
 
 title generally, a legal title, and he was pursuing it to the detriment of 
 
 the true beneficial owner, the Court would restrain him 
 
 from such an abuse of his legal right,— For example, 
 
 an inequitable ejectment would bo restrained (r) . 
 
 Injunctioii, — 
 none, in 
 general, to stay 
 criminal 
 proceedings ; 
 or where the 
 ground of 
 defciice was 
 equally avail- 
 ahle at law, — 
 and had not 
 been taken or 
 maintained 
 there. 
 
 Injunctions 
 against 
 wrongful acts 
 m puis, — 
 contracts and 
 torts. 
 
 (A) Injunction 
 in cases of 
 contract, — 
 supplemental 
 to the juris- 
 diction to 
 compel specific 
 performance. 
 
 But equity would not interfere to stay a libel action (s), 
 ^or, in general, to stay a criminal proceeding (i); and 
 equity would not relieve against a judgment at law, 
 where the ground of equity relied on was equally avail- 
 able at law, and had not been pleaded there by way of 
 defence to the action (m) . 
 
 Injunctions to restrain wrongful acts in pais, may be 
 either to enforce a contract, or to prevent a tort: And 
 
 Firstly, injunctions to enforce a Contract. — The juris- 
 diction of equity in injunction is co-extensive with its 
 jurisdiction in specific performance; and, therefore, if the 
 contract is not specifically enforceable by reason of 
 illegality, the Court will not (by injunction) restrain the 
 breach of it (x) ; and the Statute of Frauds may be suc- 
 cessfully pleaded to the claim for an injunction, where 
 the contract (being one which the statute requires to be 
 in writing) is not in writing (y) . But, in the absence 
 of any objection of that kind, the remedy by injunction 
 is, in general, available not only where the remedy by 
 specific performance would be available, but also where 
 the latter remedy would not be available: For example, 
 in Catt V. Tourle (z), where the plaintiff (a brewer) sold 
 a piece of land to the trustees of a freehold land society, 
 — and the purchasers covenanted, that the vendor should 
 have the exclusive right of supplying beer to any public- 
 
 (q) Job V. Job, 6 Ch. DiT. 562. 
 
 («■) Coles V. PdUngton, L. R. 19 Eq. 174. 
 
 (.«) PriidinHal Assurance Co. v. Knott, L. R. 10 Ch. App. 142 
 
 («) Sa'ill f. Browne, L. R. 10 Ch. App. 64. 
 
 (k) fSimpson v. Eowden, 3 M7. & Cr. 108. 
 
 \x) T)mies V. Mohuna, 29 Ch. Dlv. 596. 
 
 («/) Reeve v. Jennings, 1910, 2 K. B. 522. 
 
 (z) L. R. 4 Ch. App. 654. 
 
INJUNCTION. 513 
 
 house to be erected on the land; and the defendant (who 
 was also a brewer) acquired a portion of the land {with 
 notice of the covenant), — and erected on it a public-house, 
 which he supplied with his own beer, — The Court re- 
 strained him: And the like injunction would (under the 
 like circumstances) be granted against the assignee (a) 
 or lessee (6) of the covenantor, and against a mere occupier 
 also of the premises (c), — Because, in the case of any one Bestrictive 
 deriving title under the original covenantor, he is taken to ^Jtteeot'~ 
 know of (i.e., he has constructive notice of) the restric- effect of,— 
 tive covenant, and such notice binds the assignee lessee 
 or occupier, equally with the covenantor himself (d) : In ^eioxe, and 
 other words, the purchaser of a lease containing restrictive tion'^o™'"^ ^" 
 covenants (or an intending sub-lessee deriving his term contract, 
 under the original lessee) may not have been compellable 
 to complete the purchase (or sub-lease), because of the 
 restrictive covenants (e); but having in fact completed, 
 he is bound by the restrictive covenants, every restrictive 
 covenant being on the land itself, and the burden of it 
 running with the land (/) . 
 
 Restrictive covenants apply, of course, only to the Restrictive 
 land which is subiected thereto, — ^^and therefore not to any covenants,— 
 
 1 1 1/111 i'''i \ -11 1 ™^y nave been 
 
 otner land (although adjoining thereto), acquired by the discharged; 
 covenantor subsequently and by an independent title {g) : 
 Also, restrictive covenants may have been (and frequently 
 are) released by (e.g.) a permanent alteration in the 
 character of the neighbourhood (h) ; and from an open 
 user of the premises (for, say, twenty-four years) con- 
 trary to the covenant, a release of the covenant will, 
 usually, be presumed (i) . However, the restrictive cove- 
 nants may have been suspended only (k) ; but where the 
 land (subject thereto) is acquired by public bodies under 
 the provisions of the Lands Clauses Consolidation Act, 
 1845, the restrictive covenants are discharged altogether, 
 
 (a) TuHc v. Moxkny, 2 Phill. 774. 
 
 (J) Eolloway Brothers v. Hill, 1902, 2 Ch. 612. 
 
 («) Maneler v. Falclee, 1891, 2 Ch. 554. 
 
 (d) In re White and Smith's Contract, 1896, 1 Oh. 627. 
 
 [e] Supra, p. 500. 
 
 {/) Roi/ers v. Hosei/ood, 1900, 2 Ch. 388. 
 
 (ff) Davies v. Tuu-n Propertii-s, 1903, 1 Ch. 797. 
 
 (A) Bedford v. British Museum, 2 My. & K. 552. 
 
 (i) Sepworthv. FickUs, 1900, 1 Ch.'lOS. 
 
 (k) Tendring Union v. Dowton, 1891, 3 Ch. 265. 
 
 L L 
 
514 
 
 THE ORIGINALLY CONCUERENT JURISDICTION. 
 
 or may never 
 have attached. 
 
 Injunction,—: 
 mode of the 
 specific 
 performance 
 of negative 
 agreements ; 
 
 — compensation being given for tKe injurious affection 
 in such a case (I) : And there are also cases in which the 
 restrictive covenants may not (in the particular case) be 
 applicable (to) ; and sometimes the ovs^ner has expressly 
 reserved to himself the right of relaxing the restrictive 
 conditions in particular instances (n) ; and sometimes the 
 restrictive covenants are for his benefit alone (o) ; and 
 if the original covenantee retains no land himself, the 
 restrictive covenants would be personal, — and enforceable 
 by the covenantee only (p) : Also, the restrictive covenant 
 of A. (the reversioner) expires with his reversion (q): 
 
 It is evident, that where a contract capable of being 
 enforced in equity is a negative contract, the most natural 
 mode of its enforcement is by means of an injunction: 
 Thus, where the contract was, that (in consideration of the 
 plaintiffs having, at their own expense, erected a new 
 cupola clock and bell to the parish church of Hammer- 
 smith) a certain bell which had been daily rung in the 
 early morning' to the great annoyance of the plaintiffs 
 (who were old ladies), should not be rung at that early 
 hour during the lives of the plaintiffs and the life of the 
 survivor of them, the agreement was specially enforced 
 against the parish, by means of an injunction (?•). Also, 
 the negative covenant occurring in trade agreements, — to 
 the effect (usually) that the covenantor will not trade 
 within a defined district by himself or by his agent, — 
 will be enforced by injunction, unless the conduct of the 
 covenantee has disentitled him to that relief (s), — the dis- 
 trict, if defined as being the area within so many miles of 
 the market-place of A., being the area within a circle 
 round the market-place of A. which has (for its radius) a 
 straight line from (the centre of) the market-place {t) . 
 
 Whether the negative covenant has been broken or not 
 
 (V) Kirby v. Samgate School Board, 1896, 1 Ch. 437. 
 («») Tucker v. Vowles, 1893, 1 Ch. 195. 
 (n) Everett Y. Semington, 1892, 3 Ch. 148. 
 (o) Renalsy. Cowlishaw, 11 Ch. Div. 866. 
 (p) Formiy v. Barker, 1903, 2 Ch. 639. 
 (?) Midler Y. Traffm-d, 1901, 1 Ch. 54. 
 (r) Martin v. Nutkm, 1 P. Wms. 266. 
 
 (s) General Billposting v. Atkinson, 1909, A. C. 118; Measures, Limited' 
 . Measures, 1910, 2 Ch. 248. 
 (<) Mouflet V. Cole, L. E. 7 Exch. 70. 
 
INJUNCTION. 515 
 
 is always a question of fact, — And where, e.g., the cove- 
 nant is that of a young solicitor not to (in effect) practise 
 in competition with {i.e., within the defined area of the 
 old practice of) the solicitor to whom he had been articled, 
 or by whom (after his articles) he had been employed, the 
 acts complained of will be judged by the words of the 
 covenant, — and (as so judged) may (m) or may not {x) 
 be a breach of the covenant. 
 
 The inability of the Court to compel the specific per- And available, 
 formance of the whole of an agreement, is not a ground Iven whSe 
 for refusing to grant an injunction against the breach of contract not 
 the negative part of it; and, therefore, where a singer enforceable, 
 agreed with the plaintiff to sing for him at a specified 
 theatre during a certain period of time, and not during 
 that period to sing elsewhere, without his written 
 authority, the Court restrained her from singing at a rival 
 theatre, — the judge observing, that to the affirmative 
 agreement of the defendant there was superadded a nega- 
 tive one; and he could compel the defendant to abstain 
 from a breach of her negative agreement, — and possibly 
 (in that way) cause her to fulfil her positive agreement {y) . 
 
 Also, generally, whether the negative agreement is 
 merely ancillary to the affirmative one {z), or is co-exten- 
 sive, with it {a), the Court will" enforce it (by injunction);; 
 and the contract, although affirmative in form, may bel 
 really negative in substance (6). But, where the negative Nominnction 
 covenant cannot be performed, save conditionally on the ^^^ot secure 
 affirmative one being first performed, and the Court can- performance 
 not enforce the affirmative covenant, it refuses to enforce pfaintffi; 
 the negative one either (c) : And, generally, where the or where the 
 Court might (in the case of an express negative covenant) iiegative_ 
 be competent to enforce the contract in specie {d), it will covenantisnot 
 
 apparent. 
 
 (») Edmimdson v. Reader, 1905, 2 Ch. 320. 
 
 {x) Woodhridge v. Bellamy, 1911, 1 Ch. 326. 
 
 \y) Lumley v. Werner. 1 De G. M. & G. 615. 
 
 (s) SicJcett T. Enfield Chtirehwnrdms, 1909, 1 Ch. 544. 
 
 (a) Grimston v. Gunninghnm, 1894, 1 Q. B. 125. 
 
 (b) National Provincial Bank v. Marshall, 40 Ch. D. 112. 
 te) mils T. Croll, 2 Phill 60. 
 
 {d) Sobsonv. Tulloeh, 1898, 1 Ch. 424. 
 
 ll2 
 
516 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 not imply such a negative covenant in what is simply an 
 affirmative one (e), — merely for the purpose of enjoining a 
 breach of it (/) : Also, the Court will not restrain an infant 
 (Scil., during his infancy) from breaking his negative 
 contract (g), — unless where contained in a contract for 
 necessaries (A), or in an apprenticeship contract (i); and 
 a wife will not be restrained on her husband's contract (Jc) ; 
 nor an agent on his principal's contract (2). 
 
 Injunction, 
 although the 
 contract is 
 implied only. 
 
 if a represen- 
 tation is made 
 inducing 
 another to do 
 an act, equity 
 restrains the 
 contrary. 
 
 In the case of iniplied contracts also, — where these are 
 of a negative character, — the Court will interpose (m) : 
 And it is, in fact, a Very old head of equity, that, if a person 
 makes a representation to another and the latter acts 
 upon the faith of that representation, the former shall 
 make good his representation, if it admits of being made 
 good, — an injunction being the usual mode of indirectly 
 enforcing the representation (w) : And such a representa- 
 tion, where implied, may arise (e.g.) from the produc- 
 tion of a sale-plan (o), or estate development plan (p), 
 at an auction-saje . And, upon similar principles, where a 
 person claiming a title in himself is privy to the fact that 
 another is dealing with the property as his own, he will 
 (although he may derive no benefit himself from the trans- 
 action) be restrained from asserting his own title against 
 a title created by such other person (q) ; and where a per- 
 son having the true title to an estate stands by, and suffers 
 a person ignorant of that title to expend money upon 
 the estate, the person who has so expended the money 
 will (on eviction) be indemnified his expenditure (r). 
 However, any mere negligefice on the part of the true 
 
 (e) Solfordv. Acton Council, 1898, 2 Ch. 210. 
 
 (/) Whitwond Chemical Co. v. Hardimn, 1891, 2 Ch. 416. 
 
 (g) De France/SCO v. Sarnum, 43 Ch. Div. 163. 
 
 (A) R-ans V. TFare, 1892, 3 Ch. .502. 
 
 (i) Gnddv. Thompson, 1911, 1 K. B. 364. 
 
 (/c) Smith V. Hancock, 1894, 2 Ch. 377. 
 
 (l) Gnphir Co. v. Wood, 1902, 1 Ch. 950. 
 
 (m) Mfrryweather v. Moore, 1892, 2 Ch. 518. 
 
 («) Pifff/ott V. Straton, 1 De G. F. & J. 33. 
 
 (o) Peacock v. Penson, 11 Beav. 355. 
 
 ( p) Squire v. Campbell, 1 My. & Cr. 459. 
 
 (q) Jones V. Carter, 15 Mee. & W. 718. 
 
 ()•) Neesom v. Clarhson, 4 Hare, 97. 
 
INJUNCTION. 517 
 
 owner, unless it amounts to an estoppel (s), will not have 
 that effect (i): But where the maker of certain promis- 
 sory notes paid them, and left them with the payee, — 
 and the payee (fraudulently) negotiated them — The Court 
 said, that, for such negligence' as that, the maker was bound, 
 to pay the notes over again to a bond fide holder of them; 
 for value (u) . 
 
 The Court will also interpose by injunction to stay Statutory 
 the breach of a statutory contract, — as where a railway ^each^^f'^ 
 company (x) (or, in fact, any other public company or restrained by- 
 body («/)), is exceeding or threatening to exceed its statu- withoutproof 
 tory powers, — or is using these powers vexatiously and of actual, 
 oppressively (z), or colourably (a) — or is neglecting to oh- *™*se- 
 serve the preliminary proceedings which are a condition 
 precedent to its right to exercise these powers at all (&): 
 And (in such a case) the Attorney-General may be the 
 applicant for the injunction, — and need not show actual 
 positive damage, but only a tendency to produce serious 
 public mischief (c), or some illegality (d): But, nota bene, 
 where the suit is for equitable relief, even the Attorney- 
 General must not have been guilty of laches, — at least, 
 as a general rule (e). Also, a shareholder in the company 
 (suing as plaintiff) need not show any damage at all. — 
 Scil., Because an injunction will always issue (the case 
 being otherwise proper) to restrain the breach of any con- 
 tract (whether statutory or not), without proof of damage, 
 where the applicant is one of the contracting parties {f); 
 and an injunction will also issue (at the suit of such a 
 shareholder), to restrain the directors of the company 
 from abusing their legal powers (gf). 
 
 (s) Oliver v. Binton, 1899, 2 Ch. 264. 
 
 (i) Canada Bank v. £an/c of JBamilton, 1903, A. C. 49. 
 
 («) Nash V. Be Freville, 1900, 2 Q. B. 72. 
 
 \x) Farmer v. Waterloo and City E. C, 1895, 1 Ch. 527. 
 
 (y) Att.-Gen. v. Sanwell U. D. C, 1900, 1 Ch. 511. and 2 Ch. 377. 
 
 (z) Att.-Gen. v. Metropolitan Eleetrie Supply, 1905, 1 Ch. 757. 
 
 (a) City of Westminster case, 1905, A. C. 426. 
 
 (*) Att.-Gen. v. Shrewsbury Bridge Co., 21 Ch. Div. 752. 
 
 (o) Att.-Gen. v. Great Eastern R. C, 11 Ch. Div. 449. 
 
 (d) Att.-Gen. y. Pontypridd U. D. C, 1906, 2 Ch. 297. 
 
 («) Att.-Gen. t. Grand Junction Canal, 1909, 2 Ch. 505. 
 
 (/) Davies v. Gas Light and Coke Co., 1909, 1 Ch. 248. 
 
 (g) Att.-Gen. v. Mersey E. C, 1907, 1 Ch. 81. 
 
518 
 
 THE OEIGINALLY CONCUERBNT JURISDICTION. 
 
 (B) Injunc- 
 tions against 
 torts. 
 
 Secondly, injunctions to prevent a Tort.— As a general 
 rule, wherever a right cognisable at law exists, a violation 
 of that right will be prohibited by injunction, — excepting 
 always where considerations of expediency prevent the 
 Court from granting the injunction (^): And 
 
 <1) Waste,— 
 kinds of, 
 ■which are 
 remediable in 
 equity. 
 
 Firstly, In the case of Waste,— The Court will in 
 general interfere, whether the titles of the parties are 
 legal or are equitable and although the waste is appre- 
 hended only : Also, if there is a tenant for life, remainder 
 for life, remainder in fee, and the tenant for life in posses- 
 sion is committing waste, the Court will interfere, — either 
 at the suit of the remainderman for life (although he has 
 not the inheritance) or at the suit of the remainderman 
 in fee (notwithstanding the interposed life-estate (i)) : 
 Also, where a tenant for life without impeachment of 
 waste, is guilty of that sort of capricious waste which 
 is called " equitable waste," — such as dismantling the 
 mansion-house (/<;), or felling timber planted for the orna- 
 ment and shelter of the mansion-house and grounds (Z), 
 — the Court will restrain him: And the same rule applies 
 also to a tenant in tail after possibility of issue extinct, 
 such a tenant having the same legal right (neither moie 
 nor less) to commit waste, that a tenant for life without 
 impeachment of waste has (m) : And a tenant in fee 
 simple defeasible (w), but not a tenant in fee tail abso- 
 lute (o), will be restrained from doing waste. 
 
 In the case of mortgagee, if the mortgagor (being in 
 possession) fells timber on the estate, the Court will re- 
 strain him, if thereby the security becomes insuffi- 
 cient (p) : And, conversely, a mortgagee in possession will 
 be restrained from felling the timber, unless the security 
 is insufficient (g). 
 
 (A) Southward Waterworks v. Wandsworth Board, 1898, 2 Ch, 603. 
 
 (i) Garth v. Cotton, 1 Dick. 183. 
 
 (k) Vane v. Barnard, 2 Vera. 738. 
 
 (/) Mickleihwaite v. Micklethwaite, 1 De G. & J. 519. 
 
 (»«) Abrahall v. Btibb, 2 Swanst. 172. 
 
 (m) Turner v. Wriffht, 2 De G. F. & J. 234. 
 
 (o) Att.-Gen. v. Marlbormigh (Duke), 3 Madd. 498. 
 
 [p) Kmg V. Smith, 2 Hare, 239. 
 
 {q) Withrington v. Bankes, Sel. Ch. Ca. 31. 
 
INJUNCTION. 519 
 
 But tlie jurisdiction in equity never extended to cases (la) Waste,— 
 of permissive waste by a tenant for life (whether legal (j) ^^^"ie not 
 or equitable (s)), — Who therefore would not have been remediable in 
 enforced to do the necessary repairs to houses {t). But the ^l™*y- 
 tenant for life is, of course, liable in damages for his 
 neglect to repair {u), — such liability (in the case of settled 
 leaseholds) being to the estate (a;), and not to the next 
 remainderman {y) ; but (in the case of settled freeholds 
 or copyholds) being to the next remainderman (z) : 
 Bed qu(Bre{a). Also, as regards ameliorative waste, — hj 
 (e.g.) the conversion of warehouse property into resi- 
 dential property more calculated to let and otherwise more 
 valuable, — although equity did at one time interfere by 
 injunction to stay it (&), — equity will not now stay it (c): 
 Also, apparent waste may not be real waste, the " usage 
 of the estate " sometimes enabling a tenant for life 
 (although impeachable for waste) to cut timber (d!). 
 
 Secondly, In the case of Nuisances. — If the nuisance (2) Nuisances, 
 is a public nuisance, an indictment (or a criminal in- '^^jaj *'*"™'^ 
 formation) for it, lies to punish the offender. But a civil damage,— 
 information also lies in equity, to redress the grievance g?^oundfor^ 
 by way of injunction (e): Also, — sometimes, but very 
 rarely, — the remedy by abatement is available (/) : And 
 as regards the civil information, that is at the suit of 
 the Attorney-General; but where a private person also 
 suffers some special and distinct damage, he individually 
 (and in respect of such special damage (g)) may sue, 
 adding or not adding the Attorney-General as a party 
 to the action (h) : And a public body, suing in respect 
 of a public nuisance, is like a private individual so suing, 
 
 r) Powys T. Blagrave, i De G-. M. & G. 448. 
 s) Freke v. Calmady, 32 Ch. D. 408. 
 t) Tomlinson v. Andrew, 1898, 1 Ch. Div. 232. 
 u) In re Gjers, 1899, 2 Ch. 54. 
 x) In. re Betty, 1899, 1 Ch. 821. 
 ' I) In re Tarry and Hopkin, 1900, 1 Ch. 160. 
 ;) Avis T. Newman, 41 Ch. D. 532. 
 
 a) Zacon V. Zaeon, 1911, 1 Ch. D. 351 ; Fowys v. Slagrave, Kay, 495. 
 ■*) Smyth Y. Garter, 18 Beav. 78. 
 c) Doktrty v. Albnan, 3 App. Ca. 709. 
 'd) Dashwoodv. Magniac, 1891, 3 Ch. 306. 
 «) Att.-Oen. V. Brighton Stores, 1^00, 1 Ch. 276. 
 /) Campbell-Davys v. Lloyd, 1901, 2 Ch. 518. 
 g) Wallasey Local Board v. Gracey, 36 Ch. Div. 593. 
 h) Marriott v. Mtt Grinstead, 1669,lCh.70. 
 
520 
 
 THE ORIGINALLY CONCUHEENT JURISDICTION . 
 
 unless 
 legalized by 
 statute. 
 
 — and must either show special damage (i) or else some in- 
 jury to a. private right of property in itself (/c) . But 
 where the nuisance is legalised by statute, neither an in- 
 dictment nor an information (civil or criminal) nor an 
 action will lie for it: But the legalising statute is always 
 very strictly construed (l); and a statute which authorises 
 some nuisance in the first construction of the works, will 
 not be read as authorising the continuance of such a nuis- 
 ance afterwards (to) : Also, sometimes the statute does 
 not authorise the nuisance at all (w), — and sometimes even 
 expressly reserves the liability 'for the nuisance (o) : Lastly, 
 a nuisance may arise from some mere excess in what would 
 otherwise be merely the lawful user of (e.g.) a highway 
 or public general road (p) ; or of a stone-quarry (q) ; or 
 of a stinks-generator or refuse-destructor (r). 
 
 Nuisances, — 
 private, — 
 abatement of, 
 by the party. 
 
 Nuisances, 
 private, — and 
 common tres- 
 passes, — when 
 and when not 
 they will be 
 restrained by 
 injunction. 
 
 On the other hand, if the nuisance is a private nuisance, 
 — It may be of such a character as that the party may 
 simply abate it (s); or it may be too slight for the Court, 
 to interfere, — Soil., Because (for the interposition of the 
 Court), there must, in general, be such an injury as 
 (from its nature) is not susceptible of being adequately 
 compensated in damages at law, — or which (from its con- 
 tinuance and permanently or increasingly mischievous 
 character) must occasion a constantly recurring griev- 
 ance (i): For example, a mere common trespass is not 
 remediable by injunction, — unless where there is " a claim 
 of right " to do the act and nothing to justify the 
 claim (m) : And even where there is a sort of sullen claim 
 of right, but the assertion of it is unattended with any 
 present or prospective damage, an injunction will be re- 
 fused, and a declaration of right merelj' will be made (x). 
 
 (i) Tottenham District Council r. Wdhamson, 1896, 2 Q. B. 353. 
 
 [k) Fudsey Gas Co. v. Bradford Corporation, L. E. 15 Eq. 167. 
 
 (I) Metropolitan Asylum v. Bill, 6 App. Ca. 193. 
 
 ()«) Meux V. City Electric Lighting Co., 1895, 1 Q. B. 287. 
 
 (n) Jordeson v. Sutton Gas Co., 1898, 2 Ch. 614. 
 
 (o) Midwood V. Manchester Corporation, 1905, 2 K. B. 597. 
 
 (p) Att.-Gcn. V. Scott, 1905, 2 K. B. 160. 
 
 Iq) Thomas T. Oakley, 18 Ves. 184. 
 
 (r) Chastey v. Aikland, 1895, 2 Ch. 389. 
 
 (s) lemmon v. TVcbb, 1895, A. C. 1. 
 
 (it) Fleming v. Sislop, 11 App. Ca. 686. 
 
 («() Sturges v. Bridgman, 11 Ch. Div. 852. 
 
 (x) Behrens v. Fichards, 1905, 2 Ch. 614. 
 
INJUNCTION. 521 
 
 Again, a mere fanciful diminution in the value of 
 property will not furnish any foundation for an injunc- 
 tion (t/); and an injunction will not be granted, to re- 
 strain the ordinary use of adjoining premises, for pur- 
 poses not in themselves noxious although some damage 
 may result from the use (z) ; but a stricter rule is applic- 
 able, where the adjoining premises have been artificially 
 prepared for the particular use thereof, — and are not in 
 their ordinary condition (a) : Also, where the injury is 
 serious and irreparable, — loss of health (&), loss of trade (c), 
 or permanent ruin to property (d), ensuing (or probably 
 ensuing) from it, — the Court will interfere by injunction. 
 And, nota bene, the nuisance of noise may be found to 
 exist even in a noisy neighbourhood, where you have 
 gone (of your own choice) to reside (e) . 
 
 Also, where one person builds so near the house of Darkening 
 another as to darken his windows, — against the clear right a^ncient lights, 
 of the latter, either by contract (/) or by ancient possies- 
 sion (g), — the Court will interfere by injunction to pre- 
 vent the nuisance therebjr occasioned (Ji), unless where 
 damages would be adequate as compensation for it («) : 
 And the same law is applicable also to the access of air (&), Otetruoting 
 through (and to) a defined aperture (l). Also, generally, access of air. 
 all continuing nuisances will be restrained, the continu- 
 ance being deemed a repetition of the nuisance (m); and 
 the owner of land lying vacant and unoccupied, is answer- 
 able for any continuing nuisance thereon (w). 
 
 A landowner having a right (independently of pre- Eight to 
 scription) to the lateral support of his neighbour's land lateral 
 
 (2/) Att.-Gen. v. Niclwl, 16 Ves. 342. 
 (z) Ball V. Ray, L. K. 8 Ch. App. 467. 
 (a) Broder v. Saillard, 2 Ch. D. 692. 
 (i) Saniers-Glarlc'scase, 1900, 2 Ch. 373. 
 
 (c) Christie v. Bavey, 1893, 1 Ch. 316. 
 
 (d) St. Helen's Smelting Co. v. Tipping, 11 H. L. Ca. 653. 
 
 (e) Rushner v. Polsue, 1907, A. C. 121. 
 
 (/) Wilson V. Queen's Club, 1891, 3 Ch. 522. 
 
 (^) Warren v. Brown, 1902, 1 K. B. 15. 
 
 (h) Borne and Colonial Stores v. Colls, 1904, A. C. 179. 
 
 (j) Parker v. First Avemie Hotel Co., 24 Oh. Div. 252. 
 
 \k) AUin y. Latimer, 1894, 2 Ch. 437. 
 
 (l) Chastey v. Aclcland, 1895, 2 Ch. 389. 
 
 {m) Jenks v. Clifden, 1897, 1 Ch. 694. 
 
 (m) Att.-Gen. v. Tod-Heatley, 1897, 1 Ch. 560. 
 
522 
 
 THE ORIGINALLY CONCUEEENT JUEISDICTION . 
 
 Pollution and 
 further 
 pollution of 
 streams. 
 
 Injunctions 
 against Local 
 Boards, — 
 when obtain- 
 able; and 
 
 to sustain his own land in its natural state, — and (after 
 twenty years' enjoyment) a right to lateral support for 
 the buildings also on his land, — the Court will, in mainte- 
 nance of such right, and even where the subsidence is 
 apprehended only, grant an injunction (o), — and although 
 the sujDport should arise only from " running silt " (being 
 a mixture of water and sand (p)), or (semble) from 
 stagnant mine water (g) . 
 
 Also, a landowner will be protected against the flood- 
 ing of his own lands by his neighbour (r): And the Court 
 will interfere also to prevent the pollution of streams, 
 causing injury to the riparian owners, — Soil., at the suit 
 of such owners (s), — and (in one and the same action) 
 against all the polluting owners {t), — or (it may be) against 
 any one of such owners (where the wrongful act of the 
 other or others of them is no excuse to the defendant (m)), 
 — especially where either there is a claim of right to 
 pollute, or the continuance of the pollution might grow 
 into a right {x) ; and the Court will also interfere (by in- 
 junction) to prevent the further pollution of a stream 
 that is already comparatively polluted {y), — and to pre- 
 vent also the pollution or further pollution of under- 
 ground water (0) . 
 
 Where the property from which the nuisance proceeds 
 is in lease, the reversioner may be (or may not be) liable 
 therefor, equally with the occupying tenant; and the 
 material question in all this class of cases is, — Did the 
 nuisance already exist at the date of the letting, or did 
 it first emerge subsequently (a) ? 
 
 But, for things which are done under the powers of the 
 Public Health Act, 1875, and which occasion injury, — The 
 
 (0) Siddons v. Short, 2 C. P. D. 572. 
 
 \p) Jordeson's case, 1899, 2 Ch. 217. 
 
 [q) Littkdale v. Lomdale, 1899, 2 Ch. 217. 
 
 \r) Eoans v. Manchester and Sheffield R. C, 36 Ch. Div. 626. 
 
 (s) Eensii v. Great E'istern E. C., 27 Ch. Div. 122. 
 
 {t) Cowan V. Buccleuch (Duke), 2 App. Ca. Zii. 
 
 (u) Ogstonv. Aberdeen Trnmicays, 1897, A. C. 111. 
 
 (x) Att.-Oen. v. Birmingham, 4 K. & J. 546. 
 
 (y) Crossley v. Lightowler, L. R. 2 Ch. App. 478. 
 
 (z) Ballardy. Tomtinson, 29 Ch. Div. 115. 
 
 (a) Bouien v. Anderson, 1894, 1 Q. B. 164. 
 
INJUNCTION. 
 
 523 
 
 plaintiff, usually, obtains only compensation therefor undier when the 
 s. 308 of the Act (&), first giving notice to the defendant ^e"Srco°^'' 
 board under s. 264 of the Act: However, when the matter pensation. 
 is not one for compensation under s. 308, but is a nuisance, 
 he may have an injunction against the continuance of the 
 nuisance (c), — and that, without first giving the defendant 
 board notice (d) : And the like rules apply substantially 
 to injuries (to ancient lights) done under the provisions 
 of the Artisans' Dwellings Improvement Acts (e) . But 
 local authorities, although they will be enjoined against 
 wrongful positive acts (/), — still their mere wrongful 
 omissions will not (usually) be enjoined, — the specific 
 remedy therefor which is prescribed by the relevant statute 
 being available: Which remedy may be (and usually is) 
 the only remedy (g), — neither an injunction (h) nor a man- 
 damus (^) being available, — although a declaration of 
 right, with liberty to apply for an injunction, will some- 
 times be available (k) . 
 
 It is to be not&dftlso, generally, that the injunction is in -^^^ retion f 
 the discretion of the Court, — to grant it or not to grant Court,— to 
 it, — in the case of a nuisance (whether public or private), foerantan* 
 • — Scil., because what the Court regards (and exclusively injimction, in 
 regards) is the injury to property: Therefore, delay or ^" "'^^ ^^' 
 acquiescence on the part of the plaintiff, complaining of a 
 nuisance, will be a good ground for refusing an inter- 
 locutory injunction, — and even (if the case be otherwise 
 proper) for refusing an injunction at the hearing or trial 
 of the action, — and that as against the Attorney-General 
 even (suing as a relator), equally (or almost equally) as 
 against a private person suing (Z). 
 
 (A) Durrant v. Branksome District Council, I8fl7, 2 Ch. 291. 
 
 (c) Sellers v. Matlock Bath [Local Board), 14 Q. B. D. 928. 
 
 {d) Chapman v. Auckland Union, 23 Q. B. D. 294. 
 
 («) Wigram v. Fryer, 36 Ch. Div. 87. 
 
 -(/) Sarrington (Earl) v. Derby Corporation, 190.5, 1 Ch. 205 ; Att.-Gen. 
 ■V. Birmingham Drainage, 1908, 2 Ch. S51 ; and Jones's case, 1911, 1 Ch. 
 393. 
 
 {g) Brown v. Dvnstahle Corporation, 1S99, 2 Ch. 378. 
 
 (A) EobinsonY. Workington Corporatiun, 1897, 1 Q. B. 619. 
 
 (i) Dasmore v. Oswaldtuisfle District Council, 1898, A. C. 387. 
 
 (A) Islington Vestry v. Homsey Coimcil, 19ii(l, 1 Ch. 698. 
 
 (Vj Alt. -Gen. v. Sheffield Gas Consumers, 3 De G-. M. & G. 304, on 
 p. 324, cited and followed in Att.-Gen. v. Grand Junction Canal, 1909, 
 2 Ch. 505. 
 
524 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 (3) Libel, 
 slander, &c.,— 
 iujimotioii to 
 restrain the 
 utterance or 
 repetition of. 
 
 Injunction 
 against trade 
 circular, — 
 unless action 
 commenced 
 forthwith. 
 
 Thirdly, In the mse of Libels, Slanders, &e. — Since the 
 Judicature Acts, the Courts have (increasingly) inter- 
 posed to restrain (by injunction) the utterance of libels, 
 slanders, injurious trade circulars or trade notices, and the 
 like (m), — but not the mere puffs of rival traders (w): And 
 the Courts will (in some cases of such injurious publica- 
 tions) even grant a mandatory injunction, ordering the 
 defendant to vs^ithdraw the injurious notices (o). Also, 
 all breaches of good faith betvt^een traders (p), — and 
 others (q), — may be restrained by injunction, — Soil., where 
 the duty of good faith pre-exists ; and the solicitor acting 
 for the plaintiff in an action, may not discharge himself 
 and go over to the defendant, — nor, if discharged by the 
 plaintiff even, may he communicate to the defendant what 
 he has come to know as the solicitor for the plaintiff (r) . 
 Also, under the 58 & 59 Vict. c. 40 (as regards parliamen- 
 tary elections), and under 1 & 2 Geo. V. c. 7 (as regards 
 municipal elections), false statements which are personally 
 defamatory of the candidate may be restrained by in- 
 junction: 
 
 Also, under the Patents and Designs Act, 1907 (7 
 Edw. VII. c. 29), s. 36 (as to patents) and s. 61 (as to 
 designs), — re-enacting the like provisions contained in 
 the Patents. Designs, and Trade-Marks Act, 1883 
 (46 & 47 Vict. c. 57), s. 32,— Any person who (by 
 circular or otherwise) threatens with legal proceedings (as 
 for an infringement of his patent or design) any other 
 person, must forthwith commence and duly prosecute his 
 action, — which must be no "sham action," — ^for the 
 alleged infringement, — Otherwise the threatened party 
 may have an injunction against the continuance of the 
 threats (s). 
 
 As regards " boycotting {t), — and also watching and be- 
 
 (m) Thorlei/s Cattle Food Co. v. Massam, 14 Ch. Div. 763. 
 (n) Mellin v. White, 1895, A. C. \hi. 
 (o) Herman Loog v. Bean, 26 Ch. Div. 306. 
 (jo) Helmore -v. Smith, 35 Ch. D. 449; Measures, Limited v. 
 1910, 1 Ch. 336. 
 
 (q) Robb V. Green, 1895, 2 Q. B. 1. 
 (r) Little v. Kingswnod Colliery, 20 Ch. D. 733. 
 (s) Driffield Co. v. Waterloo Co., 31 Ch. Div. 638. 
 \t) Mogul S.S. Co. V. Macgregor, 1892, A. C. 25. 
 
INJUNCTION. 
 
 525 
 
 setting " (m), — the Court will occasionally interfere (by in- 
 junction); but the Court must first see its way to enforc- 
 ing compliance with the injunction (a;): But, as regards 
 the expulsion of a member from his club, the Court will 
 gTant an injunction against such expulsion, — if the mem- 
 ber has not had an opportunity of being heard (y), that 
 being a matter of substance, and not a mere irregu- 
 larity (z) ; but the Court will not grant any such relief, 
 where the club is a proprietary one (a) : Also, a member of 
 a trade union may have an order which shall (in effect) re- 
 strain his expulsion, — and so restore him to member- 
 ship (6): Also, there may be (but usually there will not 
 be) an injunction against the removal of a Preacher (c), 
 or of a Schoolmaster (d) . 
 
 An injunction (once it has been granted) will be en- Injunction, 
 forced (hy committal for contempt), — against not only of. ^ ^™™ 
 the parties enjoined, but also against all others knowingly 
 abetting them in their breach of the injunction (e). 
 
 Fourthly, In the case of Patents, Copyrights, and (4) Patents, 
 Trade-Marks, — In order to prevent multiplicity of suits, aSS'taade^' 
 equity habitually interfered (by injunction) to secure the marks, 
 rights of inventors and manufacturers, authors, traders, 
 and the like, — and (as incidental to the injunction) granted 
 relief by way of account: And, firstly, — 
 
 (A) In the case of Patents. — If the patent is a (A) Patents,— 
 recent one, and its validity has not been established, the a"m™ter''nf"° 
 Court requires the validity of the patent (if denied or put <^°^^- 
 in doubt) to be first established before an interim injunc- 
 tion will be granted, — the Court itself, now, trying the 
 question of validity (/) : And, in the meantime (and until 
 
 {u) Charmck v. Cmirt, 1899, 2 Ch. 36. 
 (x) Lyons Y. Wilkins, 1896, 1 Ch. 811. 
 ly) Fisher v. Jackson, 1891, 2 Ch. 692. 
 (z) Andrews t. Mitchell, 190.5, A. C. 78. 
 
 (a) Baird-7. Wells, 44 Ch. Div. 661. 
 
 (b) Osborne's case, 1911, 1 Ch. 540; and dieting. Chamberlain's Wharf 
 V. Smith, 1900, 2 Ch. 60-5. 
 
 (c) Daugars v. Rivaz, 28 Beav. 233. 
 
 {d) Hayman v. Eugby School, L. R. 18 Eq. 76. 
 (e) Seaward-v. Faierson, 1897, 1 Ch. ^ii. 
 (/) Badische v. Levenstein, 12 App. Ca. 710. 
 
526 
 
 THE ORIGINALLY CONCUEEENT JURISDICTION. 
 
 that question has been determined), the Court may grant 
 an interim injunction, — Scil., upon the plaintiff (g) (un- 
 less he be the Attorney-General (^)) giving an under- 
 taking as to damages: Or the Court may simply require 
 the defendant to keep an account in the meantime (i) : 
 And, — eventually, — at the trial, it will be necessary, of 
 course, for the plaintiff to prove his patent and the validity 
 thereof, and also that the defendant has infringed same: 
 And in order to facilitate the trial, the defendant delivers 
 "particulars of his objections"; aijd the plaintiff delivers 
 "particulars of the breaches." And, nota bene, the usual 
 objections to the validity of the patent, are want of 
 novelty, want of utility, and insufficiency in the specifi- 
 cation : Also, the defences most usually raised to the action 
 are prior publication and inutility. 
 
 And note, that a foreign patent is now no good in 
 England, — but will be revoked, — unless it is being de facto 
 worked in England (Jc), or has been and is being bond 
 fide attempted to be worked in England (I) : And, semble, 
 a patent, the term of which has been extended once, will 
 not be extended twice {m) . 
 
 (B) Copy, 
 right,— What 
 is, and what is 
 not, the 
 subject of. 
 
 "Author and 
 publisher " 
 agreements, — 
 copyright 
 under. 
 
 (B) Copyrights. — The plaintiff who sues in respect of 
 an alleged piracy of his copyright must, of course, prove 
 his title to the copyright (n) : Also, he can have no copy- 
 right in an irreligious immoral or obscene publication (o), 
 — or in "racing finals" (p); but (subject to that quali- 
 fication) there may be copyright in " books,"' — and in 
 encyclopsedias, music, engraving, sculpture, painting, 
 photography, and the like, — and (under special circum- 
 stances) even in an unpublished manuscript: And note, 
 that where one man is the author and another man is the 
 publisher of a book, the author may have retained the 
 
 (ff) Dreyfus v. Pervvian Guano Co., 1892, A. C. 166. 
 
 (h) Att.-Gen. v. Jllhnny Hotel Co., 1896, 2 Ch. 696. 
 
 (i) Bacon v. Jones, i My. & Cr. 433, 436. 
 
 (k) Ex parte Zerenner, 1909, 2 Ch. 68. 
 
 {I) In re Bremer's Patent, 1909, 2 Ch. 217. 
 
 (m) In re Thompxon's Patent, 1909, 2 Ch. 447. 
 
 (n) Johnson v. Neicnes, 1H94, 3 Ch. 663. 
 
 (o) Lawrence v. S'liHh, Jao. 472. 
 
 [p] Chilton T. Progress Co., 1895, 2 Ch. 29. 
 
INJUNCTION. 
 
 527 
 
 copyright in himself, — merely agreeing with the publisher 
 in respect of the publication of the book (q) : Or he may 
 have assigned his copyright outright to the publisher (r), 
 — And the question, as to whether the author remains en- 
 titled to the copyright, or whether the publisher has become 
 the assignee of the right, depends (simply and merely) 
 upon the construction of the agreement between the author 
 and the publisher: Also, in every case, before a plain- Begistration, 
 tiff can sue in respect of his statutory copyright and for —requisite of 
 any alleged piracy thereof, he must (whether he be the 
 original author of the book (s), or be a subsequent as- 
 signee of the author (t)) have first registered his copy- 
 right, — But such prior registration is not necessary, 
 semble, in the case of a copyright by common law (u) . 
 
 The action for an alleged infringement of the copyright Infringement, 
 usually claims an injunction, — and either damages or else ^^j|^J^°'' 
 an account of the profits: And in the action, — assuming 
 that the right to the copyright exists, and exists in the 
 plaintiff, — the principal question at the trial is, whether 
 there has been an infringement: Now, it is not an in- infringement 
 fringement of the copyright in a book, to make band fide of copyright,— 
 quotations or extracts from it; or to make a bond fide whatia'not? 
 abridgment of it; or to make a bond fide use of the same 
 common materials in the composition of another work: 
 But what constitutes a bond fide use of extracts (or a bond 
 fide abridgment, or a bond fide use of common materials), 
 is often a matter of the most embarrassing inquiry, — the 
 question usually being, whether there has been a legiti- 
 mate and fair exercise of mental ability, industry, and dis- 
 crimination resulting in the production of a new work (x), 
 — Because, if, instead of searching into the common 
 sources in an independent and critical manner (and de- 
 riving therefrom the materials which he chooses to appro- 
 priate), an author should quietly and servilely avail 
 
 (g) Stevens v. Benning, 6 De G. M. & Or. 223. 
 (r) Ward Lock v. Long, 1906, 2 Ch. 550. 
 (s) Murray v. Bogue, 1 Drew. 353. 
 (/) Fetty V. Taylor, 1897, 1 Ch. 465. 
 
 («) Mamsell t. Valley Co., 1908, 2 Ch. 441 ; and Bowdens v. Amalgamated 
 Mctorials, 1911, 1 Ch. 386. 
 
 («) Campl/eUy. Scott, 11 Sim. 31. 
 
528 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 himself of the labours of his predecessor {y), — and adopt 
 his arrangement, — or do it with only colourable varia- 
 tions, — that would not be a bond fide use of the common 
 materials, but would be an infringement (2;) . However, 
 it is no infringement, where an author has been led by an 
 earlier writer to consult the authorities referred to by him, 
 ■ — even though he may quote the same passages from those 
 authorities which were used by the earlier writer {a) : And, 
 in particular, as regards copyright in maps, road-books, 
 calendars, &c., the materials being equally open to all 
 (and the result also necessarily showing a certain identity 
 or similitude), the difficulty is not only to distinguish 
 the difference in the result, but also in detecting the unfair 
 use of the prior publication, — So much so, that the fact 
 of piracy has generally to be ascertained, by the appear- 
 ance in the later piihlication of the same inaccuracies that 
 are to he found in the prior publication; and even that 
 mode of proof must be applied with caution (6), — and 
 is not, of itself, conclusive of the matter (c) . 
 
 Copyright in 
 lectures. 
 
 Copyright, in 
 title of book : 
 
 and in illus- 
 trations, 
 headings, &c. 
 
 As regards oral lectures, persons admitted as pupils (or 
 otherwise) to hear them, cannot publish them for profit, — 
 and would be restrained by injunction from so doing {d): 
 But the reporter (or his employer) acquires a right in the 
 report, — and may restrain any rival publisher from using 
 it (c) . And it appears also, that (practically) there may. 
 be a valid copyright in the mere title of a book (/) ; but 
 this has been questioned {g), — and is perhaps only true 
 under special circumstances; and there may also be, — or 
 there may practically be, — copyright in the mere external 
 appearance of a newspaper (h), — and in the " Illustra- 
 tions " published by tradesmen in their catalogues (i) ; and 
 in the "Headings" in a trade directory (fe), although the 
 
 {y) M^eaiherhy v. International Horse Agency, 1910, 2 Ch. 297. 
 
 (z) Leslies. Young, 1894, A. C. 335. 
 
 \a) Pike V. Nkehdlas, L. R. 5 Ch. App. 251. 
 
 (5) Le^dic V. Young, sif-pra. 
 
 {e) Weatherhy v. International Uorse Agency, supra, 
 
 [d) Caird v. 'Sime, 12 App. Ca. 326. 
 
 (e) Walter v. Lane, l!iOO, App. Ca. 39. 
 (/) WeUon V. Diik, 10 Ch. Div. 247. 
 \g) Srhove v. SeTiwincke, 33 Ch. Div. 546. 
 (h) Walter v. Steinlconff, 1892, 3 Oh. 489. 
 (i) Maple's case, 21 C>i. Di?. 369. 
 
 (/c) Lamb v. Evans, 1893, 1 Ch. 218. 
 
INJUNCTION. 529 
 
 entire catalogue or entire directory may not have been 
 copyrighted. 
 
 "Scenic accessories" may, semhle, be pirated with im- 
 punity {l) : But, as regards sketches of tableaux vivantsi 
 (with explanatory letterpress), — the tableaux vivants 
 being representations of pictures in which the plaintiff 
 has copyright,— although these are not (m) (a,lnd the living 
 pictures themselves are not (n)) an infringement of the 
 plaintiff's copyright, still the background may be so (o) : 
 And as regards photographs, it is always a question, photographs, 
 whether the copyright in the photograph belongs to the oopy^gWin. 
 photographer (p), or to the person for whose use (or by 
 whose permission) the photograph has been made (q) : But, 
 in either case, the photograph may not (by reproduction 
 from the negative) be sold or distributed broadcast, where 
 that would be a breach of confidence on the photographer's 
 part(r): Also, nota bene, a photographic reproduction of 
 a picture, — being' some picture which has been copyrighted 
 as a work of art, — may be an infringement of the copyright 
 in the picture, — especially if the photograph " vulgarises " 
 the picture (s); and, at the same time, a wool-work 
 pattern, reproducing a well-known picture (" The Hugue- 
 not"), has been held to be no infringement (i). 
 
 As regards private letters (whether on literary subjects, Copyright in 
 or on private personal matters), — The writer has a i'et^rg^_ 
 qualified property in them, — and may obtain an injunc- 
 tion to restrain their publication by the party written 
 to (m) ; and the party written to has a; qualified property 
 in them, — and may restrain the publication of them by a 
 stranger {x): But the qualified right may (in either case) Assignment of 
 
 (?) Tate V. FuUbroolc, 1908, 1 K. B. 821. 
 
 (m) Banfttaenglii. Newnes, 1894, 3 Ch. 109. 
 
 (k) Sanfstaenglv. Empire Palace, 1894, 3 Ch. 109. 
 
 (o) Manfstaengl v. Empire Palme, 1895, W. N. p. 76. 
 
 \p) BoKcas V. Cooke, 1903, 2 K. B. 235. 
 
 {q) Stackeman v. Paton, 1906, 1 Ch. 774. 
 
 [r) Pollardy. Photographie Co., 40 Ch. D. 345. 
 
 (s) Banfstaengl v. Smith, 1905, 1 Oh. 619. 
 
 (t) Sicks T. Brooks, 15 Ch. D. 22. 
 
 (u) Gee T. Pritehard, 2 Swanst. 402. 
 
 [x) Thompso)!i V. Stanhope, Amb. 737. 
 
 S. M M 
 
530 
 
 THE ORIGINALLY CONCUIIEENT JURISDICTION. 
 
 in, and subse- 
 quent sale of, 
 the letters 
 themselves, — 
 effect of. 
 
 be displaced {y) : And it rather appears, that (as regards 
 private letters which have not been published in the 
 writer's lifetime) the right to publish them after his death 
 is in the proprietor of the letters; ^nd if that proprietor 
 should first sell and assign to the plaintiff the right of 
 publication, and should afterwards sell the letters them- 
 selves to the defendant, the defendant will not (under the 
 sale to him) acquire the right of publication also{z). 
 
 Copyright in 
 unpublished 
 manuscript. 
 
 As regards an unpublished manuscript, an injunc- 
 tion will (in a proper case) be granted, — to restrain the 
 publication thereof («); and copies (even manuscript 
 copies) of a tale may not be lawfully made, — ^for the other- 
 wise lawful purpose of dramatising it (&). 
 
 Successive 
 editions, — 
 growing 
 piracy in. 
 
 In case the first edition of an alleged piratical work is 
 not considered (by the proprietor of a prior existing copy- 
 right) to be of sufficiently injurious character to justify 
 him in commencing at once an action for the infringement 
 of his copyright, — He will not (by this apparent but 
 justifiable neglect) be afterwards prejudiced in his action 
 for the infringement, if the second (or other subsequent) 
 edition shows greater marks of piracy (c) . 
 
 (C) Trade- 
 marks, — 
 Injunction 
 against use of 
 trade-marks, 
 used not to 
 depend on 
 property, but 
 on fraud ; 
 
 (C) Trade -Marks. — As regards trade-marks, the 
 right to protection (prior to the Trade-Marks Registra- 
 tion Acts, 1875-76) did not depend upon any property in 
 them, but the Court would not alloiv a fraud to he practised 
 upon private individuals or upon the public by the "pass- 
 ing off" of A.'s goods as the goods of B. (d): That is to 
 say, the common law right to a trade-mark (or trade 
 name) was merely the right which any one had, to prevent 
 others from selling the like goods in such a way {i.e., by 
 such a mark) as to mislead the public (e) ; while (under the 
 
 (y) Feneval v. Fhipps, 2 V. & B. 19. 
 
 (z) Macmillan v. Sent, 1907, 1 Ch. 107. 
 
 {a) Duke of Queensberry v. Shehheare, 2 Eden, 329. 
 
 (*) Warne v. Seebohm, 39 Ch. Div. 73. 
 
 (e) Hogg v. Scott, L. R. 18 Eq. 444. 
 
 (d) Bourne \. Swan and Edgar, 1903, 1 Ch. 211. 
 
 (c) Eeddaway v. Banham, 1896, App. Ca. 199. 
 
INJUNCTION. 531 
 
 statutes), if the trade-mark (or trade-name) is proper to May now 
 register and lias been duly registered, the owner now has, depend on 
 ■ — ^t.o the extent that his tra/de-mark has been (,or is) used in 
 connection with goods (/), but not further {g), — a true 
 property in it, — So that even an innocent user of the trade- 
 mark would have been liable in damages for an infringe- 
 ment of the trade-mark {h), — although the law in that 
 particular has now been altered (i), — and he is still liable 
 to be restrained by injunction (fc). 
 
 And ^ith regard to the registration of single words as "Fancj 
 trade-marks, — It appears, that if they have been used gistration of. 
 before 1875, they may be registered (l): Also, by s. 64 of 
 the Patents, &c.. Act, 1883, any "fancy-word" might 
 have been so registered (m), provided it was used as a 
 distinctive word, and not for a fraudulent purpose (w); 
 and by s. 10 of the Patents, &c., Act, 1888 (repealing 
 s. 64 of the Act of 1883) the " fancy-word " required to be 
 an " invented word " (o),or a word which had no reference 
 to the character or quality of the goods, and was not a 
 "geographical name" (p), — For example, "Mazawattee" 
 for tea,(q), "Trilby" for ladies' hosiery (r), " Solio" for 
 photographic materials (s), and "Bovril" for beef- 
 extract (^): Also, the "portrait" of the maker was con- 
 sidered a distinctive device for cough-lozenges; and a 
 "Magnolia flower" for metals, — Because, generally, a 
 thing of beauty which is registrable as a design may also be 
 registrable as a trade-mark (u), — and the less congruous 
 it is, the better, semhie. And now, by the 5 Edw. VII. 
 
 (/) Cellular Clothing v. Maxton, 1899, App. Ca. 326. 
 
 [g] Ball V. Burnett, 1899, App. Ca. 428. 
 
 (A) Upmann r. Foreste)-, 24 Ch. Div. 231. 
 
 (i) 7 Edw. VII. 0. 28, s. 27 ; and o. 29, s. 33. 
 
 [h) Slatenger v. Spalding, 1910, 1 Ch. 257. 
 
 (I) Vaseline Trade Mark, 1902, 2 Ch. 1. 
 
 (m) Woody. Lambert, 32 Ch. Div. 247. 
 
 (») Uno V. Dunn, 15 App. Ca. 262. 
 
 (o) £e Oyelostyle, 1907, 2 Ch. 47S. 
 
 (p) Caledonia Springs ease, 1904, A. C. 103. 
 
 (q) In re Densham's Trade Mark, 1895, 2 Ch. 176. 
 
 (r) In re Salt S; Co.'s Trade Mark, 1896, 1 Ch. 711. 
 
 (s) Eastman y. Comptroller, 1898, App. Ca. S71. 
 
 (t) In re Trade Mark " Bovril," 1876, 2 Ch. 600. 
 
 («) Flaying Cards case, 1908, 1 Ch. 197. 
 
 M M 2 
 
532 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 c. 15, s. 8, — which is in substitution for s. 64 of the Act 
 of 1883, and in substitution also for s. 10 of the Act of 
 1888, — Among the "essential particulars" for a regis- 
 trable trade-mark are included an invented word or words, 
 and a word or words having no direct reference to the 
 character or quality of the goods (and not being, ;accor'ding 
 to its ordinary signification, a geogra'phical nam© or a 
 surname (cc)): However, any distinctive word, which was 
 in use as a trade-mark before the 13th August, 1875, 
 continues to be registrable as a trade-mark («/) ; and, as 
 regards the use of the royal arms in connection with any 
 trade, — these may be validly used, provided they are more 
 or less modified (z); but it is vastly safer, not to use them 
 without first obtaining authority to do so (a) . 
 
 Fraud still 
 continues an 
 independent 
 ground for an 
 injunction. 
 
 In Bwgiess v. Burgess (h), where a father had for many 
 years exclusively sold an article under the title of 
 " Burgess's Essence of Anchovies," the Court refused to 
 restrain his son from selling a similar article under that 
 name, — the name "Burgess" belonging to the son quite 
 as much as to the father, and no fraud being proved : But 
 a limited company, established by the son, would not have 
 had the privileges of the sou; and, in Cocksy. Chandler (c), 
 a rival manufacturer of sauce was restrained (at the suit 
 of the original inventor) from selling his preparation 
 under the name of " The Original Reading Sauce," — the 
 word " original," showing an intention of deceit: And (for 
 the like reason) the use of the words " Yorkshire 
 Relish "{d), " Cluh Soda "(e), " Camel Hair Belting "(f), 
 and "Cash's Frillings"{g), has been restrained; and any 
 inequitable use of the phrase " The Times," will be 
 restrained (h).. 
 
 {s:) See 1910, 1 Ch. 130, and 2 Ch. 590. 
 
 ((/) In re ApoUinaris Trade Mark, 1907, 2 Ch. 178. 
 
 (z) In re Konig's Application, 1896, 2 Ch. 236. 
 
 {a) Royal Corsets case, 1909, 1 Ch. 459. 
 
 (i) 3 De G. M. & a. 897. 
 
 (c) L. E,. 11 Eq. 446. 
 
 \d) Powell V. Birmingham, 1897, A. C. 710. 
 
 («) Cochrane v. McNish, 1896, A. C. 225. 
 
 (/) Heddaway t. Banham, 1896, A. C. 199. 
 
 \q) Cash, Limited Y. Cash, 1901, W. N. 46. 
 
 (h) Walter v. Ashton, 1902, 2 Ch. 282. 
 
INJUNCTION. 
 
 53S 
 
 By Lord Cairns's Act («), — In all cases in which a Court LordCaims's 
 of Equity has jurisdiction in injunction or in specific ^^l^lf' 
 performance, the Court (if it thinks lit) may award as to damages; 
 damages, either in addition to or in substitution for the 
 other relief: And upon that statute, these points have been also mterpre- 
 decided,— *^*'°" °'- 
 
 (1) That the jurisdiction in equity is not extended 
 thereby, to oases where there is a plain common law 
 remedy (fc) ; 
 
 (2) That there can be no relief (Scil., under that Act); 
 in a Court of Equity, where the bill is filed for damage® 
 only {I), — but only where the damages are incidental to 
 the injunction (m); 
 
 (3) That the Court cannot (in its discretion) give 
 damages in lieu of an injunction, where the plaintiff 
 makes out a case for an injunction (w), — especially where 
 the nuisance is a continuing one (o) ; And 
 
 (4) Where the Court has jurisdiction to compel specific 
 performance of part of a contract, it may award damages 
 for the breach of any other part of the contract (p) . 
 
 But (5) If the remedy for an injunction is altogether 
 gone, the Court cannot (under the Act) give damages 
 even (q) : Nevertheless, where the Court sees that a legal Whendamages 
 wrong has been committed in respect of which an injunc- ^Jn^oteveu 
 tion ought to issue, but it is impossible to frame any 
 form of injunction, the Court will give damages (r): But 
 if the wrong is merely a dishonour, and infringes no legal 
 or equitable eight of the plaintiff, there is no remedy 
 at all, either by injunction or in damages (s): Also, if the 
 wrong is merely political, no injunction will issue in 
 respect thereof, — save in respect of any property-rightsi 
 which may be affected (f). 
 
 (j) 21 & 22 Vict. 0. 27. 
 
 (/;) Wicks V. Sunt, Johnson, 380. 
 
 [T) Lewers v. Earl of Shaftesbari/, L. E. 2 Eq. 270. 
 
 [m) Holland v. WorUy, 26 Ch. Div. 578. 
 
 (wj Imperial Gas Light v. JBroadbcnt, 7 H. L. Ca. 600 ; Shelfer^s case^ 
 1895, 1 Ch. 287 ; Chester {Dean, ^c.) t. Smelting Corporation, 1901, W. N. 
 179. 
 
 (o) Meux T. City Electric Lighting Co., 1895, 1 Q. B. 287 ; Cowper v. 
 Laidler, 1903, 2 Ch. 337. 
 
 (p) Soames v. Edge, John. 669. 
 
 (g) Lavery v. Pursell, 39 Ch. Dit. 508. 
 
 (r) Saccharin Corporation case, 1900, 2 Ch. 246. 
 
 (s) Cowley t. Cowley, 1900, P. 305 ; 1901, A. 0. 450. 
 
 {t) Austria {Emperor) v. Day, 3 De G. ¥. & J. 217. 
 
 recoverahle. 
 
:SS4 
 
 CHAPTEE XI. 
 
 PARTITION . 
 
 Jurisdiction of ipjjj, common law always allowed co-paroeners to compel 
 grounds of. a partition; and the statutes 31 Hen. VIII. o. 1, and 
 32 Hen. VIII. c. 32, gave the like right to joint tenants 
 and to tenants in common (a). But the common law 
 remedy (which was by " writ of partition ") was early 
 found to be inadequate and incomplete; and equity 
 accordingly assumed a general concurrent jurisdiction in 
 all cases of partition (b). 
 
 Oases for 
 partition. 
 
 A partition action may be maintained by any freehold 
 tenant in possession, — and that, whether he be entitled in 
 fee simple, or in fee tail, or for life (c), or for any other 
 freehold estate (c?); and the judgment is binding on the 
 remaindermen and reversioners (e). But the action is not 
 maintainable by a person entitled only in remainder or 
 reversion (/) ; and a partition will not be granted during 
 the continuance of any overriding power or trust (c/): 
 jSTor will the action properly lie, where the purpose of it 
 is, in reality, to prove an adverse legal title (h), — the titles 
 of the parties being required (in every partition action) 
 to have one common root (i) . Also, where there has 
 already been a partition in pais, the Court cannot decree 
 a partition, — Because the undivided entirety would first 
 have to be reconstituted, in order to partition it (fc); and 
 
 (a) Mayfair Property Co. v. Johnston, 1S94, 1 Ch. 508. 
 
 (S) Agar v. Fairfax, L. E. 2 Eq. 440. 
 
 \c) Wills V. Slade, 6 Ves. 49S. 
 
 (<j) Hobson V. Sherwood, 4 Beav. 184. 
 
 {e) Gaskellv. Oaskell, 6 Sim. 643. 
 
 (/) Mvans v. Bagshaw, L. R. 5 Ch. App. 340. 
 
 Ig) Boyd V. Allen, 24 Ch. Bir. 622 ; In re Hormaill, 1909, 1 Ch. 631. 
 
 (h) Waite v. Bingley, 21 Ch. D. 674. 
 
 (i) Miller v. Warmington, 1 Jao. & W. 493. 
 
 (A) Ceylon case, 1905, A. 0. 383. 
 
PARTITION. 535 
 
 the partition in pais will be effective enough without 
 more (l). 
 
 The properties of which a partition may be decreed Properties of 
 include manors and freehold corporeal estates gene- which a par- 
 rally (to); also, advowsons (jj), and rent-charges (o); also, deoree"^^ 
 leaseholds for years (p); and [since the Copyhold Act, 
 1841 (4 & 5 Vict. c. 35), now repealed, but its provisions 
 in this particular re-enacted, by the Copyhold Act, 1894 
 (57 & 58 Vict. c. 46)] copyhold hereditaments (g). 
 
 • 
 
 Difficulties occasionally arose in the partition, from the Provisions of 
 infancy or lunacy of one or more of the persons interested Tlm^^ 't*'*' 
 in the property (r) : And, in order to meet these diffi- persons 
 culties (and delays), it has been provided by successive interested are 
 statutes as follows, that is to say: — By the Trustee Act, incapacity; 
 1850 (13 & 14 Vict. c. 60), s. 30 (as regards judgments 
 or decrees for a partition), — And by the Partition Act, 
 1868 (31 & 32 Vict. c. 40), s. 7 (as regards judgments for 
 a sale in lieu of partition), — And, wow, by the Trustee Act, 
 1893 (66 & 57 Vict. c. 53), s. 31,— the Court is enabled to 
 declare, that any of the parties to the action are (or will 
 be) trustees of the land (or of any part thereof); and 
 upon that declaration being made. Firstly, as to lunatics 
 or persons of unsound mind, the Lord Chancellor (by 
 virtue of the Lunacy Act, 1890, s. 135), — And secondly. Also, Lunacy 
 as to infants and others, the Chancery Division (by virtue Act, 1890,— 
 of the Trustee Act, 1893, s. 31), — may make an order 
 vesting the lands (or directing a conveyance of the lands) 
 as the order shall direct (s) . 
 
 Formerly, a partition was usually made by commis- Diffictdties, 
 sioners, acting under a commission issued to inspect perties^mall 
 measure and survey, — and to apportion, — the estate among of carrying 
 the persons entitled (t): And it sometimes happened, where effect '-^ow* 
 
 , remedied by 
 
 (I) Ireland v. Sittle, 1 Atk. .541. 
 (m) Hanhury v. Hussey, 14 Beav. 153. 
 (w) Johnstone v. Baier, 6 De a. M. & G. 439. 
 (o) Mivis T. Watson, 6 Mee. & W. 255. 
 \p) Baring v. Nash, 1 V. & B. 551. 
 \q) Clarke v. Clayton, 2 GifP. 333. 
 (r) Brook v. Hertford, 2 P. Wms. 518. 
 (s) Davis V. Ingram, 1897, 1 Ch. 477. 
 
 [t) Watson T. Northumberland {Duke), 11 Ves. 153 ; Agar v. Fairfax, 
 17 Ves. 533. 
 
^''" THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 sale under the property was small and the persons interested were 
 
 Partition Acts, „ Iui.ii n,i •■ I'l- 
 
 1868 and 1876. many, that the expense oi the commission was prohibi- 
 tive (m). And accordingly, by the Partition Act, 1868 
 (amended by the Partition Act, 1876), in any suit in 
 which a partition might be made, the Court may direct 
 a sale in lieu of a partition, and a distribution of the 
 sale-proceeds amongst the parties according to their shares 
 i*mofety or" ^^^ interests: That is to say,— Under the Partition Act, 
 upwards. 1868, — (1) By s. 4, if a moiety or upwards of the co- 
 
 tenants request a sale, the Court is to decree a sale, — unless 
 the other co-tenants show reason to the contrary (the 
 burden of proof being in this case upon the parties re- 
 (b) Sects. Sand sisting a sale (x)); and (2) By ss. 3 and 5, if one or more 
 a'moiety. (ieas than a moiety) of the co-tenants request a sale, the 
 
 Court may (in its discretion) direct a sale, — Either (by 
 s. 3), if it appears to the Court, that (by reason of the 
 nature of the property, or of the number of the parties 
 interested or presumptively interested or of the absence 
 or disability of some of the parties, or of any other cir- 
 cumstances) a sale of the property and a distribution of 
 the proceeds would be more beneficial than a partition, — 
 and notwithstanding the dissent of the others; Or (by 
 s. 5), if any co-tenant requests a sale in lieu of a partition, 
 — unless the parties resisting the sale undertake to purchase 
 the share of the party requesting a sale, — In which latter 
 case, the Court may (upon such undertaking being given) 
 order a valuation of the share of the party requesting 
 the sale, — or may refuse altogether to direct a sale. 
 
 Judgment for The decree or judgment directing a partition (or a sale 
 fOTsaieln*"^ in lieu thereof) is usually obtained on motion for judg- 
 lieu thereof,— ment duly set down and taken as a short cause : And that 
 mode rf ^^ practice is invariable, where the defendant makes default 
 oMaining. in delivering a defence; but if the defendant delivers his 
 defence, and therein admits the plaintiff's title, the decree 
 or judgment may be made on ordinary motion («/). 
 
 Sale,— mode of In the general case, the judgment simply refers the 
 effectuating, action to Chambers, for an inquiry as to the persons en- 
 
 (m) Turner v. Morgan, 8 Ves. 143 ; 11 Ves. 157. 
 (x) Porter v. Lopes, 7 Ch. Div. 358. 
 [y) Burnelly. JBurnell, 11 Ch. Diy. 213. 
 
PARTITION. 
 
 titled, — and directs a sale, only if it is certified that all 
 the persons entitled are parties, — or (in effect) parties, — 
 to the action: But where the property is small, and the 
 title simple, and the title is made out at the hearing, an 
 immediate sale will be directed by the judgment (z), — 
 all the co-owners (other than the party having the con- 
 duct of the sale) having leave to bid: And, in the judg- 
 ment, an inquiry will or may be added regarding incum- 
 brances, — but the incumbrancers are not to be made parties 
 to the action (a); and an inquiry as to an "occupation 
 rent" may also be added, — but not as against an incum- 
 brancer (6). Sometimes, also, an account will be directed 
 of the rents and profits, — Scil., for the six years next 
 before the commencement of the action (c), — together with 
 an inquiry as to money expended in permanent improve- 
 ments. Also, any windfall coming to the estate pending 
 the partition action (for example, compensation for an 
 extinguished licence) must be paid into Court for division 
 among the parties entitled (d) . 
 
 The sale itself is usually carried out under the direction 
 of the Court: But (under Order LI. Kule la) the Court 
 may (with a view to avoiding expense) direct a sale alto- 
 gether out of Court, — the proceeds of the sale being (in 
 that case) brought into Court (e). And, as regards the Costs of the 
 costs of the action, these are provided for on the further ^^°^- 
 consideration (/), — only one set of costs being allowed in 
 respect of each share. 
 
 (z) Wood V. Gregory, 43 Ch. Div. 82. 
 
 (a) Sinclair v. James, 1894, 3 Ch. 654. 
 
 (b) SiUv. Ilickiii, 1897, 2 Ch. 579. 
 
 (c) Burnell v. Burnell, supra. 
 
 (d) Birhin v. Smith, 1909, 2 K. B. 112. 
 
 (e) Slrugnell y. Siriignell, 27 Ch. Div. 258. 
 (/) Belcher v. Williams, 45 Ch. Div. 510. 
 
 637 
 
538 
 
 CHAPTER XII. 
 
 INTERPLEADER. 
 
 more persons 
 claim the same 
 thing from a 
 third person. 
 
 luterpieaderin INTERPLEADER in equity was, where two or more persons 
 vAere'two or (whose titles were connected) claimed the same thing from 
 a third person, and he exhibited his bill of interpleader 
 against both, stating the several claims (and his own 
 position in regard to the matter), and praying that the 
 claimants might interplead (a); and in an interpleader in 
 equity, it was essential, that the plaintiff should have had 
 no personal interest in the subject-matter (&) : And, noio, 
 the applicant for an interpleader summons must satisfy 
 the Court, that he claims no interest in the subject-matter 
 in dispute {other than for Ms costs or charges (c)): Also, 
 further, the plaintiff (besides having no personal interest 
 in the subject-matter) must have been under no personal 
 liability to either of the claimants (d) ; but, noiv, any 
 question of personal liability may be (and, usually, will 
 simply be) left unprejudiced (e). 
 
 Cases, not 
 proper for 
 interpleader. 
 
 Where a landowner is (in respect of his lands) subject 
 to some charge (e.g., an annuity), — and he is uncertain, 
 to whom he should pay the annuity, or in what proportions 
 he should pay it, as between A., B., C, and D., — That 
 is not a proper case for an interpleader (/). Also, where 
 the dispute is between two rival auctioneers, — one of whom 
 claims £35 for his commission in respect of the sale of a 
 house, and sues the defendant for such commission; and 
 the other of the two auctioneers claims £25 for his com- 
 mission in respect of the sale of the same house, — That is 
 
 (a) Jones v. Thomas, 2 Sim. & GifB. 186. 
 (J) Mitchell V. Sai/ne, 2 Sim. & Stu. 63. 
 
 (c) Oebruder t. Ploton, 25 Q,. B. D. 13. 
 
 (d) Orawshay v. Thornton, 2 My. & Cr. 1, 19. 
 
 (e) Ex parte Mersey Books, 1899, 1 Q. B. 646. 
 (/) Vyvyan T. Vyvyan, 4 De G. P. & J. 183. 
 
INTERPLEADER. 539 
 
 not a proper case for an interpleader {g), — Scil., because 
 the dispute is not in respect of one and the same subject- 
 matter ; and, in fact, both the commissions, or neither of 
 them, may (under the special circumstances) be pay- 
 able (i^) . 
 
 It was sufficient for an interpleader in equity, if the Interpleader, 
 
 title of one of the claimants was equitable : And if {e.g.) ^tiewas'iegai 
 
 a debt had been assigned, and a controversy arose between and the other 
 
 the assignor and the assignee, a bill of interpleader might s^™**^l«- 
 have been brought by the debtor, to have the point settled 
 to whom he should pay the debt (^) . 
 
 IB 
 
 In the oa&e of two adverse independent legal titles, Noiater- 
 the party holding the property was not entitled to inter- formeriy, in 
 plead in equity, — for that would have been to assume the case of 
 right to try merely legal questions (&): But, now, relief pendent'fegti 
 by way of interpleader may be granted, wherever the titles: 
 person seeking the relief (and who is usually called the *"""' "'■'^" 
 applicant) is (or expects to be) sued by two or more 
 persons making adverse claims to the property (and who 
 are usually called the claimants). 
 
 An agent was not (nor is) allowed to dispute the title Agent could 
 
 of his principal, — and, therefore, could not (nor can), in SS^erpieaded 
 
 general, interplead: But where the principal has created against his 
 
 an interest in (or lien on) the property in favour of a third P^^'^'P* • 
 person, and the nature and extent of that interest or lien 
 is the only matter in controversy, the agent may have 
 
 interpleader (Z). Also, a tenant could not (nor can), in Tenant could 
 
 general, have interpleader against his landlord and a agliilthis^^ 
 
 stranger claiming under a title adverse to the landlord, — landlord and 
 
 Scil., because a bill of interpleader was, where two persons ^.^ stranger 
 
 claimed of a third person the same debt or the same paramount 
 
 duty; and the adverse claimant was not claiming the same *^*^®- 
 debt, — the rent due upon the demise being a different 
 demand from, that which some other person might have 
 upon the occupation of the preinises {m) . However, if 
 
 (^) Greatorex v. ShaehU, 1895, 2 Q. B. 249. 
 
 (A) Fan- v. Ward., 2 Mee. & W. 844. 
 
 (i) Wright t. Ward, 4 Euss. 215. 
 
 \k) Pearson v. Cardan, 2 Russ. & M. 605, 610. 
 
 (Z) Smith V. Sammond, 6 Sim. 10. 
 
 ()») Dungey v. Angove, 2 Ves. 310. 
 
540 
 
 THE ORIGINALLY CONCURRENT JURISDICTION. 
 
 Gases where a 
 tenant might 
 bring a bill of 
 interpleader. 
 
 Sheriff seizing 
 goods, could 
 not have had 
 interpleader : 
 Secus, now. 
 
 Affidavit of 
 no collusion. 
 
 the persons claiming the same rent claimed in privity of 
 contract or of tenure (as in the case of a mortgagor and 
 a mortgagee), — The tenant (not disputing the title of his 
 landlord, but relying only upon the uncertainty of the 
 person to whom, he was to pay the rent), might have had 
 interpleader (n) . But, nota bene, a defendant who set 
 up some jus tertii, alleging that the title was in another 
 and defending on that (o), was not interpleading at all, 
 — but was siding with the adverse party; And some- 
 times, in fact, he was estopped (by his own conduct) from 
 doing otherwise (p) . 
 
 Interpleader in equity would not, in general, have lain 
 for a sheriff against two or more persons, putting forward 
 adverse claims to the property taken in execution, — but, 
 by the 1 & 2 Will. IV. o. 58, the benefit of interpleader 
 was latterly (in such a case) given, — and even at law: 
 And (by Order LVII. Rule 1) relief by way of inter- 
 pleader may, nOw, be granted, wherever the applicant in 
 interpleader is the sheriff (or other officer charged with 
 the execution of process by or under the authority of the 
 Court), and the case is proper for interpleader: 
 
 The plaintiff in an interpleader in equity was required 
 (in all cases) to satisfy the Court, that he was not collud- 
 ing with either of the claimants (q) ; and (under the 
 present practice) an affidavit of no collusion is expressly 
 required (r) . 
 
 Procedure on 
 interpleader. 
 
 Under the present practice, the application for an inter- 
 pleader summons is made to a judge at Chambers; and if 
 made by the defendant, it is made at any time after 
 service of the writ in the action; and if made by the 
 sheriff, it is made immediately after he has seized the 
 goods in execution. 
 
 Where the sheriff interpleads, the Court may order a 
 sale of the whole (or of any part) of the goods, without 
 
 (k) Clarice v. Bi/ne, 13 Ves. 383. 
 
 (o) The Winkfield, 1902, P. 42. 
 
 \p) Kingsman v. Kingsman, 6 Q. B. D. 122. 
 
 (q) Errington v. Att.-Gm., 1 Jao. 205. 
 
 {r) Ord. LVII. r. 2. 
 
INTERPLEADER. 
 
 prejudice to the question of the title thereto : And the 
 question of title may thereupon he decided summarily (s) ; 
 but, more usually, an issue of fact (or of law) is tried 
 on a specdal case stated between the claimants. 
 
 Also, under the Judicature Act, 1884 (t), the whole 
 proceedings, — where the amount does not exceed £500, — 
 may be transferred into the County Court, — the bailiff of 
 the County Court becoming (in effect), upon such a 
 transfer, the sheriff (m), — and proceeding with all the 
 same oiroumspeotion as the sheriff (x) . 
 
 (s) Van Laun's case, 1903, 2 K. B. 277. 
 [t) 47 & 48 Vict. 0. 61. 
 («) Jelks V. Sayward, 1905, 2 K. B. 460. 
 \x) Wells V. Hughes, 1907, 2 K. B. 845. 
 
 541 
 
542 
 
 PART lY. 
 
 THE [now obsolete] AUXILIARY JURISDICTION. 
 
 Although the auxiliary jurisdiotion in equity is now 
 an obsolete jurisdiction (a), — its place having been sup- 
 plied by simpler modes of procedure, — Still the old prin- 
 ciples, which were regulative of the jurisdiction, are 
 helpful in applying the substituted modes of procedure: 
 And here it is to be mentioned, that, in saying the 
 auxiliary jurisdiction is obsolete, it is intended only, that 
 it is obsolete quoad the Common Law Courts (including 
 the Probate Division (6)), — and not also quoadCourts not 
 consolidated together in the High Court (c) . 
 
 The auxiliary jurisdiction (while it continued to exist) 
 was applicable primarily to the better enforcement of 
 legal rights, — and only (by a sort of analogy) was jt 
 applicable to the enforcement also of equitable rights: 
 And, in the case of legal rights, the decision of the 
 Common Law Court was conclusive in equity (d) ; but, 
 in the case of equitable rights, the opinion of the Common 
 Law Court (where equity thought fit to take that opinion) 
 was for guidance only, — and the verdict also of a common 
 law jury (where equity thought fit to obtain such verdict) 
 was for guidance only(e). 
 
 {a) Orr v. Maper, i Ch. D. 92. 
 
 (b) Phippa V. Stewart, I Atk. 285. 
 
 («) Satten v. Gedi/e, 41 Ch. D. 507. 
 
 {d) Eigby v. Great Western S. C, 2 Phil. 44. 
 
 (e) Legate v. Sewell, 1 P. Wms. 86. 
 
BILL OF DISCOVEKY. 543 
 
 Section I. On Discovery. 
 
 A bill of discovery was a bill which asked for (or, as (i> Discovery, 
 the phrase was, "prayed" for) discovery simply, and for 
 no relief, — the disoovery most usually asked for having 
 been of title-deeds in the custody (or possession) of the 
 defendant, or of facts resting in the knowledge of the 
 defendant, — the object of the discovery having been the 
 better prosecution of some action at law (/) . 
 
 There were numerous defences to a bill of discovery, — 
 For example, the heir general (or heir-at-law) could not 
 have had discovery during the life of his ancestor; but 
 the heir-in-tail might, — within due limits (g), — ^have Tiad 
 discovery: Also, if the proposed action at law was clearly 
 not maintainable, the disoovery would have been re- 
 fused (h), — although, if the point was fairly open to 
 doubt, the discovery would have been granted (i) . Also, 
 if the action was not purely civil, — or if the effect of it 
 would (or might) have been a confiscation of the defen- 
 dant's property (k), — no discovery would have been 
 granted. Also, where the defendant was a mere witness, 
 there was no need for (or right to) the disoovery. Also, 
 equity would not have granted discovery in aid of a volun- 
 tary arbitration (Z), — but would (semble) have done so 
 in aid of a compulsory arbitration (m) . But (since the 
 fusion of law and equity) it has not been open to a de- 
 fendant to object (w), — although it was formerly always 
 open to him to have objected (o), — by way of defence 
 to the discovery, that he was a bond fide purchaser for 
 value without notice of the plaintiff's claim. 
 
 (/) Anffell V. Angell, 1 Sim. & Stu. 83. 
 
 Ig) Shaftesbury v. Arrowsmith, 4 Vee. 66. 
 
 (h) Lord Kensington v. Mansell, 13 Ves. 240. 
 
 (i) Thomas v. Tyler, 3 Toimge & Col. Ex. 255. 
 
 (k) United States of America v. M'Sae, L. R. 3 Ch. App. 79. 
 
 (?) Street v. Sigiy, 6 Ves. 821. 
 
 (m) British Emp. Shipping Co. v. Somes, 3 K. & J. 333. 
 
 («) Hmmerson v. Ind, 12 App. Ca. 300. 
 
 (o) Stanhope v. Earl Vemey, 2 !Eden, 81. 
 
544 
 
 THE AUXILIARY JURISDICTION. 
 
 (a) Bills to 
 perpetuate 
 testimony, — 
 object of ; 
 
 Section Ia. On Bills to Perpetuate Testimony, — And to 
 Take Evidence De Bene Esse. 
 
 (1) Bills to Perpetuate Testimony were a branch of 
 the law of discovery, — their objec.t being to preserve (that 
 ,- . is, perpetuate) evidence that was in danger of being lost, 
 before the matter to which it related could be made the 
 subject of judicial investigation: Therefore, this remedy 
 did not lie, where the matter could have been at once 
 decided : And it was considered also, that the remedy was 
 not one to be encouraged, — and that it should be permitted 
 only when absolutely necessary to prevent a failure of 
 justice (p), or when the preservation of the evidence tended 
 to prevent future litigation {q) . 
 
 Equity would 
 not have 
 perpetuated 
 evidence of a 
 right which 
 might be 
 barred ; 
 
 Secies, now, — 
 imder 5 & 6 
 Vict. c. 69 ; 
 
 The Court, formerly, declined to entertain a bill to 
 perpetuate testimony in support of a right which might 
 have been barred, — as in the case of a remainderman filing 
 a bill against the tenant-in-tail in possession (r) : Also, a 
 mere expectancy was not considered sufficient, — as (e.g.) 
 the " bare expectation of a future interest" resulting, e.g., 
 from a married man becoming a widower and re-marry- 
 ing (s) ; but a contingent legatee had something more than 
 a mere expectancy {t) : And, now, by the 5 & 6 Vict. c. 69, 
 — or (speaking more correctly) under Order XXXVII. 
 Rule 35, — where any person would (under the circum- 
 stances alleged by him to exist) become entitled, upon 
 the happening of any future event, to any honour title 
 dignity or office (m), — or to any estate or interest in any 
 property (real or personal), — the right or claim to which 
 cannot be brought to trial before the happening of such 
 event, he may file his bill {i.e., commence his action) 
 to perpetuate the testimony {x) . 
 
 or under the Also, a bill to perpetuate testimony was not formerly 
 allowed, where a mere question of personal status was in- 
 
 {p) Zldnover v. Homfray, 13 Ch. Div. 380. 
 \q) Earl Spencer v. jPeeh, L. E,. 3 Eq. 415. 
 (r) Dursley v. Fitzhar^inge, C Ves. 251. 
 (s) Davis V. Angell, i De G. F. & J. 524. 
 (t) Studhohne v. Hodgson, 3 P. Wms. 300. 
 
 [u) WestY. Saekmlle, 1903, 2 Ch. 378 ; also Sackville- Westy. Alt -Gen., 
 1910, P. 143. 
 {x) Bute [Marquess) v. James, 33 Ch. Div. 167. 
 
 Legitimacy 
 Declaration 
 Act, 1858. 
 
BILLS TO PERPETUATE TESTIMONY, ETC. 546 
 
 volved {y) : But, noiv, under the Legitimacy Declaration 
 Act, 1858 (21 & 22 Vict. c. 93), the Probate and Divorce 
 Division is empovifered to make decrees declaratory of the 
 legitimacy or illegitimacy of the petitioners, — or of the 
 validity or invalidity of the marriages of their parents or 
 grandparents, or of their ovs^n marriages {z) . 
 
 (2) Bills to take Evidence De Bene Esse were (or in- 0>) Bills to 
 eluded) bills to take the testimony of persons resident j)e Bene Esse, 
 abroad, and also of aged and infirm persons resident within —object of ; 
 the jurisdiction: They were brought by persons already in ' 
 litigation, — and in the absence of some pending litigation 
 they were not competent at all {a) : For example, where 
 certain customary tenants claimed (as against the Lord 
 of the Manor), that they were entitled to the mines and 
 minerals within and under their customary tenements, — 
 and the lord disputed their right, — and they commenced (in 
 1815) their action against the lord {Moggridge v. Hall); 
 and the evidence of some twelve aged witnesses on behalf 
 of the tenants (and in support of the right which they Also, example 
 claimed) was taken de bene esse under an order made in °*- 
 that action; and the evidence so taken was filed; and after- 
 wards (in 1871), the customary tenants commenced against 
 the lord a further action of Phillips v. Llanover (6), — by 
 way of supplement to the former action (all the parties to 
 which, and also all the twelve witnesses in which, had mean- 
 while died), — and the lord had shortly before (in 1870 — 1) 
 commenced his action against them {Llanover v. Horn- 
 fray (6)), to establish his exclusive title to the mines and 
 minerals in question, — The Court held the evidence in 
 Moggridge v. Hall admissible, — and admitted it, — and 
 decided in favour of the claim of the customary tenants, 
 and against the right of the lord: And, nota bene, the 
 priricipTe there acted upon was merely the principle 
 (which is of general application), that if (in a dispute 
 respecting lands) any fact comes distinctly in issue, the 
 
 {y) Townshend Peerage case, 10 01. & Pin. 289. 
 
 {z) Frederick v. Att.-Gen., L. E. 3 P. & M. 196, 270. 
 
 («) Angell v. Angell, 1 S. & S. 83. 
 
 (J) 13 Oh. D. 380 ; 19 Oh. D. 224. 
 
 N N 
 
546 
 
 THE AUXILIARY JURISDICTION. 
 
 evidence given as to that fact is admissible, to prove the 
 same fact, in another action between the same parties or 
 between their respective privies, — and that even although 
 the later action concerns other lands (c) . 
 
 And note, that the modern practice in this class of action 
 is regulated by Order XXXVII. r. 5. 
 
 Section II. On Bills Quia Timet, — And Bills of Peace. 
 7wP"\- f (1) ^«^^s §»« Timet were in the nature of suits of 
 
 limet, — object ^ ' . ^„ . , i..™ ,. , 
 
 of ; also, cases prevention or oi precaution, — the plamtift seeking the 
 *°''- aid of the Court, because he feared {quia timet) some 
 
 future probable injury to his rights or interests, and not 
 because any injury had already happened: And the 
 nature of the relief asked for and given was dependent 
 on circumstances, — The Court sometimes appointing a 
 receiver of the rents or other income {d), or of the cargo 
 of aship (e), or of goods and chattels generally; and some- 
 times ordering a pecuniary fund to be paid into Court(/), 
 or otherwise providing {e.g.) some indemnity to a trustee 
 against his proximate liability {g); and the Court would 
 sometimes merely grant a protective in j unction (^): And, 
 nota bene, since the Judicature Acts, an action in the 
 nature of a bill quia timet may still be brought (i) : But 
 the action does not lie, merely to enforce {e.g.) the right 
 of a lessee to be indemnified by his assignee against the 
 future accruing liabilities under the lease {i), — but only 
 against liabilities already accrued (fc) : Nor, generally will 
 the action lie, unless the plaintiff is able to prove danger 
 of a substantial kind, and which is either imminent {I) 
 or inevitable (m), — or else can show some contract entit- 
 ling him to the relief (w) . 
 
 («) Doe V. Foster, 1 A. & E. 791. 
 
 (d) Zeney v. Callingham, 1908, 1 K. B. 79. 
 
 (e) Dreyfus t. Peruvian Guano, 42 Ch. D. 66. 
 (/) Brice v. Carroll, 1902, 2 Ch. 176. 
 
 Ig) Hobbs v. Wayet, 36 Ch. D. 266. 
 (h) Wooldridge v. JYorris, L. R. 6 Eq. 410. 
 (i) Sarris v. Boots, 1904, 2 Ch. 376. 
 (k) Lloyd y. Dimmack, 7 Ch. D. 398. 
 \l) Fleieher v. Bealey, 28 Ch. Div. 688. 
 («») Pattisson v. Gilford, L. E,. 18 Eq. 259. 
 («) Siddons v. Short, 2 C. P. D. 672. 
 
BILLS OF PEACE. 547 
 
 (2) Bills of Peace bore some resemblance to Bills quia Bills of peace, 
 iimet : But a bill of peace (properly so called) was a bill —object of; 
 brought by a person to establish and perpetuate a right . f es o . 
 claimed by him, which (from its very nature) might be 
 controverted in different successive actions, — ^and greatly 
 to his vexation, — and justice required, that he should be 
 quieted in his right, once that right had been sufficiently 
 declared, — Interest reifuhlicce ut sit finis litium : There- Buu of peace, 
 fore, .where (e.^.) there was one general right to be '"s*»"<'es of. 
 established against a great number of persons, — or where 
 (e.g.) one person claimed or defended a right against 
 many, or many claimed or defended a right against one, 
 — The Court would first of all declare the right, — and 
 would thereafter (in order to prevent any recurrence of 
 the suit) make a decree binding on all, — for example, in 
 actions by lords against their tenants, to establish their 
 right to fines, or to the profits of fairs, or to a sole and 
 several fishery (o) . But, wherever the plaintiff had 
 definitively established his right, and still was in danger 
 of further litigation relative to it (p), a perpetual in- 
 junction would have been granted, — Soil., because the 
 litigation, after a time, became vexatious: And all vexa- 
 tious litigation will be suppressed (q) ; and the 59 & 60 
 Vict. c. 51, now specifically provides for its suppression. 
 
 Section III. On the Cancelling, and Delivery up, 
 of Documents. 
 
 The jurisdiction of equity to direct the cancellation and Instniment, 
 the delivery up of documents, was also of a protective deUwy°up 
 character (r), — the jurisdiction being largely discre- of,— not a 
 tionary, however : Thus, voluntary agreements (although ^^^^^ ^* ^ ^f 
 not enforceable) would not ordinarily have been set aside, judicial dis- 
 — Scil., because if a man would bind himself in a volun- the*Coi^ 
 tary deed (and without any power of revocation), equity 
 would, ordinarily, leave him bound thereby (s) : Therefore, 
 where a man (who was a sot) signed a very foolish sale- 
 
 (o) Mayor of York v. Filkinffton, 1 Atk. 282. 
 {p) Bath {Earl) v. Sherwin, Prec. Cli. 261. 
 \q) Grepe v. Loam, 37 Ch. D. 168. 
 (r) Williams v. Bull, 32 Beav. 57i. 
 (s) Mally. Hall, L. R. 8 Ch. App. 430. 
 
 N N 2 
 
548 
 
 THE AUXILIARY JURISDICTION. 
 
 I. Voidable 
 instruments, — 
 
 (a) When 
 oanoelled. 
 
 (b) When not 
 cancelled. 
 
 contract, and asked to be relieved from it (as being only 
 a little scrap of paper at an ale-house), the Court did not 
 relieve him (it). But if a contract was voidable for actual 
 fraud (or for constructive fraud), — and, sometimes, even 
 where the plaintiff had participated in the fraud, — the 
 plaintiff would have been relieved; and the Court would 
 also, — ordinarily at least, but not invariably, — have set 
 aside a contract which was voidable for oppression or undue 
 influence (tt), — or for illegality (a;) . 
 
 II. Void 
 instruments, 
 
 (a) When 
 delivered up, 
 and upon 
 what grounds. 
 
 As regards instruments which were utterly void, — 
 There was at one time some doubt, whether the remedy 
 obtainable in a Court of law was not sufficient: But the 
 jurisdiction of equity was, eventually, fully established, 
 — Soil., in all oases where the delivery up of the document 
 would help to prevent the perpetration of some future 
 wrong {y) : Also, if the document was of such turpitude, 
 that it ought not to be used for any purpose, it was against 
 conscience for the party holding it to retain it; and if 
 the document was, e.g., a negotiable instrument, it was in 
 danger of being used for a fraudulent purpose; and if it 
 was a title deed, its existence (in an uncancelled state) 
 threw a cloud upon the title {z) . 
 
 (b) When not Occasionally, however, the proper remedy was not to 
 andTTponwh'at ^avc the document cancelled, but to have the evidence 
 grounds. which Supported the defence to it perpetuated : And where 
 
 the illegality of the instrument appeared upon the face of 
 it, there was no danger even, that the lapse of time would 
 prejudice the defendant in his defence: Also, it is never 
 wise to jump before you come to the stile, — so that if CD. 
 has never shown any intention of suing you, and you 
 rather think he never will, why should you sue him in 
 an access of timMity (a) ? 
 
 [t) Villers V. Beaumont, 1 Vern. 100. 
 
 (m) St. John V. St. John, 11 Ves. 535. 
 
 (ah Barclay \. Pearson, 1893, 2 Ch. 154. 
 
 ij/) Jones T. Meriotieth Building Society, 1891, 2 Ch. 587. 
 
 (a) Kemp v. Prior, 7 Ves. 248. 
 
 (a) The Leeds Forge case, 1906, 2 Ch. 498. 
 
BILLS TO ESTABLISH WILLS. 549 
 
 Section IV. On Bills to Establish Wills. 
 
 Equity had no general jurisdiction over wills,— the Ejuity dealt 
 proper Court having been (as regards personalty) the ^"'i^wji'f 
 Ecclesiastical Court— and latterly the Court of Probate ""='''^''**"y- 
 (its successor); and (as regards realty) the Court of 
 Common Pleas or of the Queen's Bench,— and latterly 
 (upon citation of the heir and devisee) the Court of 
 Probate: But, where a will came incidentally into 
 question in equity, that Court necessarily acquired some 
 jurisdiction regarding the will, — And (in such a case) 
 if the validity of the will was admitted (or had already 
 been established elsewhere), equity acted upon it to the 
 fullest extent: And if not, then equity established the will, 
 — either directing (for this purpose) an issue devisavit 
 vel non ; or else trying that issue itself, — 8cil., by calling 
 the attesting witnesses (that is to say, per testes) or 
 sending it for trial at the assizes. 
 
 Oecasionally, also, the very object of the suit in equity Devisee might 
 might have been to establish the will: For example, where ^"^j "^*° 
 the will was a will of real estate, and it was desired to establish a will 
 obtain a perpetual injunction against the heir-at-law, agaiost heir- 
 equity assumed jurisdiction, — Because the devisee (being 
 in possession) could not litigate the will at law (Scil., 
 in an action of ejectment), and yet was entitled to say 
 to the heir-at-law, "Litigate now or never" (b): And 
 where equity so established the will, — or where equity 
 decreed that the trusts of the will should be executed (c), 
 — that was a final decision upon the validity of the will. 
 But a purchaser from the devisee could not have required 
 the devisee to so establish the will (d) . 
 
 The facilities for proving a will in the Probate Division Pioof of will 
 are now very great: That is to say, — Firstly, if the will m Court of 
 has the usual attestation clause, it is proved hj the simple effect of'— 
 oath of the executor (that he believes the will to be the 
 true last will); and, Secondly, if the will has not that 
 
 (J) Boyse v. Sossiorough, 6 H. L. Ca. 1. 
 («) Gooch V. Gooeh, 3 Du Gr. M. & G-. 366, on p. 386. 
 (d) Colton v. Wilson, 3 P. Wms. 190 ; Mormon v. Arnold, 19 Ves. 669 ; 
 Grove v. Bastard, 1 De G. M. & 0-. 12 ; Grove v. Young, 5 De G. & Sm. 38. 
 
(a) When will 
 is proved in 
 solemn form. 
 
 550 THE AUXILIAEY JURISDICTION. 
 
 attestation clause, then (in addition to the executor's oath 
 to the effect af oreeaid) there is required also, from one of 
 the subsorihing witnesses, an affidavit of due execution by 
 the testator: Probate so obtained is called probate in 
 common form, — probate in solemn form being where both 
 the attesting witnesses are sworn and examined, and other 
 corroborative evidence is taken, — in the presence of the 
 widow and next of kin (including the heir) : And when the 
 will has onoe been proved in such solemn form, the probate 
 is conclusive proof of the will (e), — even where the heir 
 may only have been oited as one of the next of kin (/) . 
 
 (b) When will Where, — as ie most frequently the case, — the probate 
 common^form. l^Eis been in common form, and in some subsequent action 
 affecting the real estate, it becomes necessary to establish 
 the devise, — The plaintiff gives to the defendant, — ten 
 days at least before the trial, — notice, that he intends 
 using at the trial the probate (or an office copy thereof); 
 and thereupon such probate (or office copy) becomes suffi- 
 cient evidence, — Unless the defendant (within four days 
 after receiving the notice) gives a counter-notice to the 
 effect that he disputes the devise (gr),— In which latter 
 case, it becomes necessary to prove the will as a substan- 
 tive independent fact, and in accordance with the ordinary 
 rules of evidenoe. 
 
 Probate The Probate Division may also, in a proper case, make 
 
 SoiusiTe" ^^ order for the revocation of a probate (A),— and even 
 juiisdiction of. for the revocation of a revocation of the probate (i) ; and 
 it is not proper, to come into Chancery for such a i^ur- 
 pose (fc) : And, in fact, all objections to wills (or to 
 parts of wills), on the ground of fraud, must now be 
 taken in the Probate Division (^): But the jurisdiction 
 of the Chancery Division, as regards relieving against 
 accidents and mistakes in wills (m), and as to all questions 
 
 («) 20 & 21 Viot. c. 77, a. 62. 
 
 (/) Bem-dsley v. Beardsley, 1899, 1 Q. B. 746. 
 
 (s) 20 & 21 Viot. 0. 77, s. 64. 
 
 (/() Rhodes v. Rhodes, 7 App. Ca. 192. 
 
 (t) Birch V, Birch, 1902, P. 130. 
 
 {k) Meluish v. Milton, 3 Ch. D. 27. 
 
 \l) Morrell v. Morrell, 7 P. D. 68. 
 
 (»») Salt T. Fi/m, 28 Oh. Div. 163. 
 
THE WRIT "nE exeat REGNO." 651 
 
 relative to the true construction of the will (w), remains 
 intaot: The Probate Division used to have no jurisdiction, vi^iiis, which 
 ■where the will did not deal at all with the personal estate, reTi*estete 
 and did not even appoint an executor, — but dealt only only,— probate 
 with the real estate (o); and even under the Judicature °*- 
 Acts, the Probate Division did not acquire any jurisdic- 
 tion in the matter of wills purely of real estate (p): But, 
 under the Land Transfer Act, 1897 (q), the Probate Divi- 
 sion has now jurisdiction (for all the purposes of that 
 Act), — even as regards wills which deal only with real 
 estate (r) . 
 
 Section V. On the Writ " Ne exeat regno." 
 The writ of ne exeat regno was a prerogative writ, — Greneral juris- 
 and was originally applicable only on great political ^^^™ 
 occasions (Scil., for the safety and benefit of the realm); ,. ' . 
 and such having been the character of the writ in its equitable 
 origin, it was afterwards applied with great caution and '^^'"'^^'^j^bte 
 jealousy, when a private subject invoked its aid in favour only, 
 of his private rights (s) : 
 
 That is to say, — A Court of Equity, where it granted 
 the writ (Scil., in respect of an equitable debt), strictly 
 followed the rules which were applicable in a Court of 
 law to the issue of the corresponding writ of cap-iaa 
 (Scil., in respect of a legal deht(t)): Therefore, in a 
 Court of Equity, it was required, that the equitable 
 demand should have been certain and not contingent (^«) : 
 And it was further required, that the amount demanded 
 in the action should have already become actually due 
 and payable (v) . 
 
 The old ne exeat jurisdiction in equity appears to still 
 remain, — although it has been to a large extent modified 
 by the successive modern statutes, which have to a certain 
 extent abolished imprisonment for debt on mesne pro- 
 cess (x) . 
 
 (n) Wagstaffv. Jalland, 1908, 1 Oh. 162. 
 
 (o) Bradford v. louiig, 26 Ch. D. 656. 
 
 \p) Be Cubbon, 11 Prob. Div. 169. 
 
 (y) 60 & 61 Vict. o. 65. 
 
 (r) Ee Barnett, 1898, P. 145. 
 
 (s) Flack V. Eolm, IJ. & "W. 405. 
 
 (t) Dromr v. Beyer, 13 Ch. D. 242. 
 
 («) Sobey v. Sobey, L. R. 15 Eq. 200. 
 
 («i) Oolvenon v. Bleom/teld, 29 Ch. D. 341. 
 
 {x) 32 & 33 Vict. 0. 62, d. 6, modifying 1 & 2 Viot. o. 110, s. 3. 
 
562 
 
 pfHE AtXlLlAKY JURISDICTION. 
 
 Ne exeat^ — 
 under divers 
 statutes. 
 
 The writ has also been made specifically available, in 
 certain cases, by statute : For example, under the Abscond- 
 ing Debtors Act, 1870 («/), the writ may issue, where the 
 debtor is going abroad after the issue of a debtor summons 
 against him {z) : And, under the Bankruptcy Act, 1883 (a), 
 s. 25, the debtor may be arrested, if he is about to abscond 
 after a bankruptcy notice has been issued (or a bank- 
 ruptcy petition presented) against him: And, generally, 
 under the Debtors Act, 1869 (&), ss. 4, 6, the debtor (even 
 an executor-debtor (o)) may be arrested (by way of bail 
 to the action), whenever the debt is £50 or more, — assum- 
 ing always that the defendant is about to leave the country 
 (on purpose to hamper the plaintiff in his action), and 
 assuming also that the debt demanded in the action is 
 certain and not contingent, and is a debt presently j)ay- 
 able(J). But the Court still, of course, exercises a great 
 discretion in issuing the writ (e), — even in cases where the 
 writ is (and continues) available: 
 
 Companies 
 Act, 1908, 
 — an'est 
 (or seizure) 
 under. 
 
 Also, under the Companies Act, 1908 (/), s. 176, on 
 proof (of probable cause for believing) that a contribu- 
 tory (in a winding-up) is about to quit England, or other- 
 wise to abscond, — or is about to remove (or to conceal) 
 any of his property, for the purpose either (1) of evading 
 payment of calls, or (2) of avoiding examination re- 
 specting the affairs of the company, — The Court may 
 cause the contributory to be arrested (Sail., in a proper 
 case (g)); and may also (either in lieu of or in addition 
 to arresting him) cause his books and papers and his move- 
 able personal property (but not his real estates) to be 
 seized, — the period during which the arrest or the seizure 
 is to continue being in the discretion of the Court. 
 
 {y) 33 & 34 Viot. o. 76. 
 
 («) Zees V. Patterson, 7 Ch. D. 866. 
 
 (ffi) 46 & 47 Vict. 0. 62. 
 
 (5) 32 & 33 Viot. c. 62; and see also Ord. LXIX. rr. 1—7. 
 
 (c) Dmey v. Bourne, 1906, 1 Ch. 6U7. 
 
 Id) Colverson v. Bloomfield, supra. 
 
 («) In re Woodward, 30 Sol. Journ. 753. 
 
 (/) 8 Edw. VII. c. 69. 
 
 Ig) In re Imperial Mercantile Credit Co., L. E. 6 Eq. 264. 
 
INDEX. 
 
 ABANDONMENT— 
 Of contract, 491. 
 Of lien, 87, 88. 
 Of right to rescind for fraud, 409. 
 
 ABATEMENT— 
 
 Of legacies, 148, 218, 232. 
 
 Of nuisance, 519, 520. 
 
 Of purchase-money, 489, 502. 
 
 ABRIDGMENTS- 
 
 Being bond fide, 527, 528. 
 
 ABSCONDING DEBTORS ACT— 
 Arrest under, 552. 
 
 ABSOLUTE APPOINTMENT, 173. 
 
 ABSOLUTE ASSIGNMENT, 44, 93. 
 
 ABSOLUTE CONVEYANCE— 
 When a security only, 83, 238. 
 
 ABSOLUTE OBLIGATION— 
 
 Discharge of, for the future, if impossible, 393. 
 Past payments on account of, continue good, 394. 
 
 ABUSE OF LEGAL POWERS— 
 By trustee, 99. 
 
 Injunctions against, at suit of Attorney-General, 517. 
 Injunctions against, at suit of shareholder, 517. 
 
 ACCEPTANCE OF OFFER, 477. 
 
 ACCEPTANCE OF TITLE, 504. 
 
 ACCEPTANCE OF TRUST— 
 Effect of, 98. 
 By married woman, 97, 351. 
 
 ACCIDENT— 
 
 Definition of, 389. 
 Relief from, at law, 389. 
 Relief from, in equity, 389. 
 
554 INDEX. 
 
 ACCIDENT— co«<i««ed. 
 
 Adapted to the circumstances of the case, 390. 
 i. Where deeds, &c., lost or destroyed, 390. 
 ii. Defective execution of powers, 391. 
 iii. Erroneous payments, 392. 
 iv. Cases in which relief not granted — 
 (1) Where positive contract, 393. 
 
 As between lessor and lessee, 393. 
 As between vendor and purchaser, 393. 
 ' (2) Where obligation absolute, 393, 394. 
 
 (3) Where equal improvidence, 394. 
 
 (4) Where equal equity, 395 . 
 
 ACCIDENTAL LOSS— 
 
 Of title-deeds by mortgagee, 261 . 
 
 ACCORD AND SATISFACTION— 
 With assignor of chose in action, 50. 
 With principal debtor, 444. 
 
 ACCOUNT— 
 
 Mortgagor in possession, not liable to, 251 . 
 Mortgagee in possession, liable to, 253, 258. 
 
 Even after assignment of mortgage, 258. 
 Trustee entitled to settlement of, 137. 
 Surcharging and falsifying, 137, 463. 
 
 ACCOUNT, JUEISDICTION IN— 
 At law, 461. 
 In equity, 461 et seq. 
 
 (1) Principal against agent, but not vice versa, 461. 
 (Iffl) Patentee against infringer, 461. 
 
 (16) Assignee of patent against licensee, 461. 
 (le) Cestui que trust against trustee, 462. 
 (Id) Mortgagor against mortgagee, 462. 
 
 (2) Mutual accounts, 462. 
 
 (3) Accounts incident to waste, &c., 462. 
 Defences to suit for account — 
 
 («) Settled account, 463. 
 
 (i) Laches or acquiescence, 463. 
 
 (c) Statutes of limitation, 463, 464. 
 At suit of co-tenant, 464. 
 In case of infant's estate, 464. 
 On waiver of trespass, 464. 
 
 ACCOUNT OR DAMAGES— 
 Distinction between, 461, 462. 
 
 ACCRETION TO LEGACY— 
 
 When it goes with legacy, and when not, 153. 
 
 When it goes to tenant for life of legacy, and when not, 154. 
 
 ACCRUAL OF TITLE— 
 
 In case of power exercised, 347, 348. i 
 
 ACCUMULATION OF INCOME— 
 Trusts for, 75. 
 
 When beneficiary may put an end to, 75. 
 
 When interfered with, for benefit of infants, 380. 
 
INDEX. 655 
 
 ACKNOWLEDGMENT OF DEED— 
 
 Not now required for trust real estates, 352. 
 Nor for mortgage estates, 352 . 
 
 acquiescence- 
 Is evidence of waiver, 15. 
 May be equal to^ a release, 15. 
 Where true owner stands by, 11, 428. 
 On the part of reversioners, 15. 
 
 Of mortgagees, 217. 
 
 Of cestui que trust in breach of trust, 135. 
 
 Of defrauded person in fraud, 409. 
 
 ACREAGE, DEFICIENCY OF— 
 Compensation for, 489. 
 Repudiation on account of, 502. 
 
 ACTION— 
 
 Remedy by, generally, 2, 5, 388. 
 
 ACTIVE— 
 Use, 22. 
 Trust, 22. 
 
 ACTS OF BANKRUPTCY, 42. 
 
 ACTUAL NOTICE— 
 What is, 266. 
 Of one document, effect of, 267, 268. 
 
 Of settlement, 268. 
 
 Of will, 269. 
 Effect of, generally, 262. 
 No effect, in commercial purchases, 268 . 
 
 ADJUSTMENT OF RIGHTS— 
 
 Between tenant for life and remainderman, 124, 125, 225, 226. 
 Between drawers and acceptors of bills, 469, 470. 
 
 ADMINISTRATION ACTION— 
 
 Originating summons for, effect of, 194. 
 
 Injunction in, 194. 
 
 Receiver in, effect of, 194. 
 
 No decree in, till a legal personal representative, 194. 
 
 Decree in, effect of, 194, 199. 
 
 Decree in, form of, 208, 210. 
 
 Transfer of, to Bankruptcy Division, 207. 
 
 Of living debtors being insolvent, 208. 
 
 Plaintiff in, if he sue as a creditor, must show a debt, 208. 
 
 Mortgagee (being a creditor) may have, 290. 
 
 ADMINISTRATOR— 
 
 Retainer by — See Retainek. 
 Husband as administrator to wife, 174, 327. 
 Husband's own administrator, 327. 
 Wife as administrator, 351. 
 
 ADVANCEMENT— 
 
 Presumption of, in favour of — 
 
 (1) Legitimate child, 79. 
 
 (2) lUegitimate child, 80. 
 
 (3) Persons treated as childi'en, 80. 
 
 (4) Wife, being lawfully wedded, 80. 
 
 (5) Deceased wife's sister, 80. 
 
556 
 
 INDEX. 
 
 ADVANCEMENT, presumption ot— continued. 
 
 None in favour of kept mistress, or kept man, 80. 
 Presumption of, rebuttable by parol evidence, 81. 
 Distinction between original purchase and mere transfer, 82. 
 When and v^hen not a satisfaction of a legacy, 190. 
 
 Or of a debt, 190. 
 
 ADVANCE OF MONEY— 
 
 By vendor, for improvements on estate sold, 317. 
 
 ADVERSE POSSESSION— 
 By mortgagee, 246 et seq. 
 
 Of part only, 247. 
 
 Selling after title by, complete, 286. 
 
 Dying, before adverse possession complete, 95. 
 By mortgagor, 247 et seq. 
 
 ADVOWSON— 
 
 In mortgage, 261 . 
 
 Belonging to infant ward, 373, 374. 
 
 Is not a charity, 71. 
 
 APTEK-ACQUIEED PROPERTY— 
 Assignment of, 46. 
 In bills of sale, 306. 
 
 Of wife, covenants for settlement of, 177, 178. 
 Of bankrupt, purchase of, 497, 498. 
 Leaseholds, 497. 
 Personal chattels, 497. 
 Freeholds and copyholds, 497. 
 Being earnings of bankrupt, 497, 498. 
 
 AGENT— 
 
 Acting within (but exceeding the limits of) his power, effect, 
 
 293. 
 Cannot purchase estate of principal, 425, 426. 
 Each partner is, for co-partners, 450, 451. 
 Cannot, in general, have, interpleader against principal, 539. 
 Misrepresentations by, binding on principal, 486. 
 Notice to, effect of, on principal, 270, 271. 
 
 AGRICULTURAL LEASE— 
 
 Of lands in mortgage, 252, 253. 
 Covenants in, as to tillage, 320. 
 
 ALIENS— 
 
 May, now, be trustees, 97. 
 
 Title, formerly, of Crown to equitable estate of, in lands, 84. 
 
 ALIMONY— 
 
 Not assignable, 55. 
 
 Not capable of valuation in bankruptcy, 55, 56. 
 
 Allowance in nature of, 55. 
 
 ALLOWANCES— 
 
 To executors, 208, 209. 
 To mortgagees, 267. 
 To bailiffs of estates, 464. 
 To co-owners, 317, 
 
INDEX. 557 
 
 AMBIGUITY, 488. 
 
 ANCESTRAL MOETGAGE— 
 
 Fund primarily liable for payment of, 214, 215. 
 Adoption of, by successor, 215. 
 
 ANNUAL RESTS— 
 
 When and when not, against mortgagee, 260. 
 Uniformly, or not at all, 260. 
 
 ANNUITIES— 
 
 Are legacies, 149. 
 
 Where a trust (or direction) to purchase, 149, 150. 
 
 Where given generally, 150, 151. 
 
 (1) When perpetual, 151. 
 
 (2) When for life only, 151. 
 Where charged on real estate, 150. 
 Arrears of, raising of, 152. 
 Valuation of, in bankruptcy, 207. 
 
 ANTE-NUPTIAL AGREEMENT— 
 Must be in writing, 36, 484. 
 
 ANTE-NUPTIAL COVENANTS TO SETTLE— 
 When void, in event of bankruptcy, 41. 
 Enforcement of, by children, 41. 
 
 APPOINTEE, TITLE OF— 
 Generally, 347. 
 Accrual of, 347, 348. 
 
 APPOINTMENT— 
 
 Exercise of power of, effect of, 347, 348. 
 By mere appointment of executor, 219. 
 Defective execution of power of, aided, 391. 
 Fraud upon power of, 430, 431. 
 Release of power of, 431. 
 
 APPOINTMENT FUNDS— 
 
 Under general power, equitable assets, 195. 
 
 If and so far as power exercised, 195. 
 Order in which liable for payment of debts, 218, 219. 
 
 APPOINTMENT OF NEW TRUSTEES— 
 Generally, 137 et seq. 
 Release of old trustees, upon, 137. 
 
 APPORTIONMENT— 
 Of dividend, 154. 
 Of liability, 154. 
 
 Of charge for street improvements, 501 . 
 Of losses, in case of partnership, 454, 456. 
 Of costs of administration action, 210. 
 
 APPROPRIATION— 
 To meet legacy, 147. 
 To meet annuity, 149. 
 For payment of creditors, 210. 
 Of payments, 469. 
 Of securities, 471. 
 
558 INDEX. 
 
 APPROPRIATION OF PAYMENTS— 
 Debtor has first right, 469. 
 If debtor omit, creditor may appropriate, 469. 
 
 Even to a statute-barred debt, 470. 
 
 Time, latest, for, 470. 
 If neither make appropriation, the law makes, 470. 
 The rule in Clayton's Case, 470. 
 
 When applicable, 470. 
 
 When inapplicable, 470, 471. 
 
 APPROPRIATION OF SECURITIES— 
 
 Its effect, as between the parties, 471, 472, 473. 
 
 ARRANGEMENT, DEEDS OF— 
 
 Under Deeds of Arrangement Act, 1887... 45. 
 
 Under Land Charges, &c. Registration Act, 1888. ..4.5. 
 
 ARREARS— 
 
 Of alimony, 5S. 
 
 Of annuity, 152. 
 
 Of Interest on legacy, 152. 
 
 Of interest on mortgage, 244. 
 
 Of pin-money, 357. 
 
 Of separate estate, 332. 
 
 ARREST— 
 
 On writ ne exeat regno, 551. 
 Under Absconding Debtors Act, 1870. ..552. 
 Under Bankruptcy Act, 1883... 552. 
 Under Debtors Act, 1869... 551, 552. 
 Under Companies Act, 1908... 552. 
 
 ASSENT OP EXECUTOR— 
 
 To bequest of leaseholds, &c., 147. 
 
 None required to donatio mortis causa, 145. 
 
 ASSETS— 
 
 Distinction between legal and equitable, 192. 
 Legal, examples of, 194. 
 Equitable, varieties of, 195. 
 Administration of, generally, 192 et seq. 
 Payment of statute-barred debts out of, 196, 197, 
 General direction for payment of debts, effect of, 198. 
 Administration of, in the case of deceased insolvents, 200 ef seq. 
 Administration of, in Bankruptcy Division, 207. 
 Administration of, in the case of living insolvents, 207, 208. 
 Judgment for administration of — 
 (a) Personal estate, 208. 
 (J) Real and personal estate, 210. 
 Appropriation of, to proving creditors, 2l0, 211. 
 Refunding of, 211. 
 Order of liability of, 212. 
 
 (1) The general personal estate, primary liability of, 213. 
 What exonerates the personalty, 213. 
 
 (2) Lands expressly devised for payment of debts, 217. 
 
 (3) Realty descended, 218. 
 
 (4) Realty devised charged with debts, 218. 
 
 (5) General pecuniary legacies, 218. 
 
 (6) Specific legacies and devises pro rata, 218. 
 
 (7) Property under general power of appointment, 218. 
 
 (8) Paraphernalia, 219. 
 
INDEX. 559 
 
 ASS'E'TS— continued. 
 
 Executor, liability of, after partial distribution of, 223. 
 Executor, protection of, by statutes of limitation, 224. 
 
 ASSIGNEE— 
 
 Of chose in action, 46. 
 
 Of chose in action of wife, 364 ef seq. 
 Takes, in general, subject to equities, 52. 
 
 Negotiable instruments, and debentures to bearer, 
 
 excepted, 54. 
 Also, equities arising subsequently to notice, excepted, 
 55, 466. 
 Of illegal chose in action, 57. 
 Of residue, 53. 
 Of mortgage, 65, 258. 
 
 ASSIGNMENT— 
 
 Of chose in action, 46. 
 
 Not of part, 48. 
 
 Where illegality, 57. 
 Of wife's chose in action, 364 et seq. 
 Of equitable estate, 30. 
 Of voluntary bond, 193. 
 Of mortgage debt, 29, 258. 
 Of goodwill, 458. 
 Of share of partner, 451, 456. 
 
 ATTORNEY-GENEEAL— 
 
 When and when not a necessary party to action, 517, 519. 
 Does not give undertaking as to damages, 526. 
 Laches, when imputable to, 15, 517, 523. 
 
 ATTOENEY, POWEE OF— 
 
 Is not an equitable assignment, 49. 
 Incident to a security, is irrevocable, 49. 
 
 ATTORNMENT CLAUSE— 
 Distress under, 289. 
 Must be registered as a bill of sale, 289 . 
 Determination of tenancy under, 290. 
 
 AUCTIONEEE— 
 
 Authority of, 480, 481. 
 
 Where exceeded, effect, 481. 
 Lien of, 228, 311. 
 Interpleader by, 538. 
 
 AUCTIONS— 
 
 Agreement not to bid at, 429. 
 Alteration of sale-conditions at, 480, 481 . 
 
 AUTHOEISED INVESTMENTS— 
 
 Distinguished from unauthorised, 124, 125, 131. 
 
 AUXILIAEY JURISDICTION— 
 Now obsolete, 4, 542 . 
 
 Was in aid of legal rights strictly so called, 542. 
 Was sometimes in aid of equitable rights even, 388, 542 . 
 Heads of, 543 et seq. 
 
560 INDEX. 
 
 AWARD— 
 
 Time for making, 394. 
 
 Setting aside, 450. 
 
 Remitting, 450. 
 
 Suing on, 511. 
 
 Accident in not making, 394. 
 
 BACK-RENTS— 
 
 Upon a charge of lands, 195, 196. 
 
 Accountability of mortgagee, in respect of, 258, 259. 
 
 BANKERS AND BROKERS— 
 Distinguished, 463. 
 
 BANKRUPT— 
 
 Specific performance by or against, 485. 
 Discharge of, 203. 
 Undischarged, position of, 497. 
 Discharged, position of, 498. 
 
 BANKRUPTCY— 
 Acts of, 42. 
 
 Administration in, 202 et seq. 
 Proof in, rules of — 
 
 (1) Applicable in Chancery, 206. 
 
 (2) Not applicable in Chancery, 205. 
 Discharge, order of, effect of, 497, 498. 
 
 BANKRUPTCY ACT, 1883— 
 s. 4 (Acts of bankruptcy), 42. 
 B. 9 (Stay of action), 205. 
 s. 25 (Arrest of debtor), 552. 
 s. 25 (Trustee, removal of), 139. 
 s. 30 (Fraudulent breach of trust), 135, 203. 
 s. 37 (Debts provable), 202, 207. 
 B. 38 (Set-ofiE), 204. 
 s. 40 (Payment pari passu), 204. 
 s. 40 (Interest on debts), 206. 
 s. 41 (Apprenticeship premium), 204. 
 s. 42 (Distress for rent), 204. 
 s. 44 (Order and disposition), 39, 203, 498. 
 s. 47 (Voluntary settlements), 39. 
 s. 48 (Fraudulent preferences), 41. 
 o. 49 (Protected transactions), 42. 
 s. 52 (Sequestration), 236. 
 s. 53 (Salary, half-pay), 55, 236. 
 s. 122 (Administration during life), 208. 
 s. 125 (Administration in bahkruptcy), 207. 
 s. 150 (Crown bound), 203. 
 
 BANKRUPTCY ACT, 1890— 
 
 s. 10 (Affiliation, &c. orders), 203. 
 s. 21 (Administration), 207. 
 
 BANKRUPTCY TRUSTEE— 
 
 Title of, to property of bankrupt, 47, 497, 498. 
 Intervention of, as to after-acquired property, 497. 
 Specific performance, in the case of, 485, 
 
INDEX. 561 
 
 BAE OF ACTION— 
 
 By time — See Limitations, Statutes of. 
 By laches, 14, 135, 491. 
 By release, 14, 113, 136, 409, 428, 491. 
 By acquiescence, 14, 135, 217, 409, 428. 
 
 BARGAINS, UNCONSCIONABLE— 
 With heirs and expectants, 426. 
 
 BENEFICES, ECCLESIASTICAL— 
 Charge upon, 235. 
 
 Charges upon, in favour of Queen Anne's Bounty, 236. 
 Charges, none by deposit, in case of registered land, 295. 
 
 BILL OP EXCHANGE— 
 
 Acceptance of, in part payment of purchase-money, 87. 
 Remedy, in case of lost, 390. 
 Remedy, in case of destroyed, 391 . 
 
 BILL OF PEACE— 
 Object of, 547. 
 Oases for, 547. 
 
 BILL QUIA TIMET— 
 
 To prevent anticipated wrong, 546. 
 
 By surety, to compel payment by principal debtor, 437. 
 
 BILLS OF LADING— 
 
 Mortgage by indorsement of, 304. 
 
 Subsequent exercise of the right of stoppage in transitu, 
 effect of, 304, 305. 
 
 BILLS OP SALE— 
 
 Require registration, 306. 
 
 And re-registration every five years, 306. 
 Schedule to, when required, 306. 
 Form of, where prescribed by statute, 306. 
 
 Effect of non-compliance with prescribed form, 306, 307. 
 Mode prescribed for realisation of, 307. 
 Of goods of trader, 307. 
 
 Documents which require no registration as, 306, 308. 
 Must be assurances of some sor^ 307. 
 
 When receipts are not, 307. 
 
 When hire agreements are, or are not, 308. 
 
 Building agreements are not, 309. 
 
 BONA VACANTIA— 
 
 When Crown takes personalty as, 84. 
 When executor takes, 84. 
 
 BOND— 
 
 Acceptance of, for purchase-money, 87. 
 
 Donatio mortis causa of, 7. 
 
 Voluntary, proof for, 193. 
 
 Time for suing on, 249. 
 
 Suing on, after foreclosure, 290, 291. 
 
 Tacking of, 277, 303. 
 
 Remedy, in case of destroyed, 391. 
 
 S. 
 
562 INDEX. 
 
 BOEROWING, POWER OF— 
 In case of companies, 236, 237. 
 Guarantee of directors, when no, 440. 
 
 BREACH OF CONTRACT— 
 
 Damages recoverable for, 474, 480. 
 When nominal, 480. 
 When substantial, 480. 
 
 BREACH OF COVENANT— 
 Action by mortgagor for, 6. 
 Relief of lessee from forfeiture for, 323, 324. 
 
 BREACH OF TRUST— 
 
 Liability of trustees for, 130 et seq. , 
 
 Duty of new trustee to sue for, 138. 
 
 Remedies for, personal and real, 130. 
 
 Interest payable on, 134. 
 
 Remedy for, lost by acquiesoenoe, 135. 
 
 Remedy for, given up by release or confirmation, 135. ; 
 
 By married woman, 136, 342. 
 
 Made good by trustee, his right to contribution, 115, 116, 131. 
 
 Made good at expense of another cestui que trust, 10, 115. 
 
 BRITISH SHIPS— 
 
 Legal ownership of, 309. 
 
 Mortgages of, 309. 
 
 Equities enforced against, 310. 
 
 BUILDING CONTRACTS— 
 
 Not bills of sale, of the building materials, 308, 309. 
 Usually not specifically enforceable, 475. 
 
 BUILDING SCHEME— 
 General, 500, 513. 
 Conditions of, relaxation of, 513, 514. 
 
 Effect of change in character of land upon, 513. 
 
 BUILDING SOCIETY— 
 
 Debts due from secretary of, 193. 
 Mortgages to, 256, 276. 
 
 BUSINESS— 
 
 Of deceased, carried on by the executors, 126 et seq. 
 
 (1) Where executors have authority to do so, 127. 
 
 (2) Where executors have no authority to do so, 129. 
 
 BUYING UP DEBTS— 
 By surety, 441. 
 By transferee of mortgage, 441. 
 
 CALLS— 
 
 Are specialty debts, 193. 
 
 Mortgage of, 237. 
 
 Set-off of debts against, 466. 
 
 CANCELLING OF DOCUMENTS— 
 
 (1) Voluntary deeds, 547. 
 
 (2) Voidable deeds, 548. 
 
 (3) Void deeds, 548. 
 
INDEX. 563 
 
 capital- 
 Loss of, 130. 
 Misapplication of, 414. 
 Replacement of, 105. 
 
 CAPITAL AND INCOME— 
 
 Distinguishing between, 124, 226. i 
 
 As regards profits and losses of business, 131, 451. 
 
 CARE AND DILIGENCE— 
 
 Required of trustees and executors, 103. 
 
 CARRYING OVER— 
 
 Share of residue to separate account, effect of, 54, 468. 
 Sums appropriated to creditors, ^10, 211. 
 
 CERTIFICATE— 
 Laud, 295. 
 Share, 295, 428. 
 Of charge, 295. 
 
 Of master, in foreclosure action, 246. 
 
 Of master, of persons entitled, in a partition action, 536, 537. 
 Estoppel by, 428. 
 
 CERTIFICATION, 428. 
 
 CESTUI QUE TRUST— 
 Constitution of, 25, 28, 58. 
 Death of, intestate and a bastard, effect of, 84. 
 Remedies of, for breach of trust, 130 et seq. 
 Acquiescence by, 135. 
 Release or confirmation by, 135. 
 Impounding beneficial interest of, 133, 316, 343. 
 Gii^s by, to trustee, 425. 
 Purchases from, by trustee, 109, 425. 
 
 champerty- 
 Is aggravated maintenance, 56. 
 Assignments affected by, 56. 
 
 CHARGE— 
 
 For estate duty, 225. 
 
 For street improvements, 225, 501. 
 
 CHARGE OF DEBTS— 
 
 What amounts to a, 195, 198. 
 
 Purchaser exonerated, when and when not, 62, 63. 
 
 Gives implied power to sell or mortgage, 64. 
 
 CHARGE OF LEGACIES— 
 What amounts to a, 233. 
 Receipt for purchase-money, in case of, 63. 
 
 CHARGING ORDER— 
 
 On stocks and shares, 201. 
 
 On fund recovered in suit, 312, 313. 
 
 CHARGING SEPARATE ESTATE— 
 Of married woman, 334, 336. 
 
 CHARITIES— 
 
 What are, and what are not, 67, 68. 
 Scheme for, 69. 
 
 O o2 
 
564 INDEX. 
 
 GTlARITIEiS— continued. 
 
 Charity Commissioners, powers of, 69. 
 i. Favoured by law: — 
 
 (1) General charitable intention carried into effect, 70. 
 Discretion in executors as to, 70. 
 
 (2) Defect in conveyance supplied, 72. 
 
 (3) Surplus, no resulting trust of, in general, 72. 
 
 (4) Rule of Perpetuities, not applicable to, 73. 
 
 (5) 27 Bliz. c. 4, not applicable to, 73. 
 
 (6) Defective execution of power, aided, 391. 
 ii. Treated on a level with individuals: — 
 
 (1) Want of executor (or trustee) supplied, 73. 
 
 (2) Lapse of time a bar, when and when not, 74. 
 
 (3) Legal separated from illegal trusts, 74. 
 
 (4) Accumulation of income, 75. 
 iii. Less favoured than individuals: — 
 
 (1) Assets not, in general, marshalled, 76. 
 No necessity for, now, 76, 77. 
 
 (2) Obnoxious charities deprived of benefit, 77. 
 
 CHARITY COMMISSIONERS— 
 Powers of, 69. 
 Schemes of, 69. 
 Consent of, to sale or mortgage of charity lands, 236. 
 
 CHARITY TRUSTEES— 
 Powers of, 23. 
 Majority of, binds minority of, 23. 
 
 CHATTELS PERSONAL— 
 
 Statute of Uses, not applicable to, 22. 
 Statute of Frauds, not applicable to, 22. 
 Statute 27 Eliz. c. 4, not applicable to, 34. 
 
 CHATTELS REAL— 
 
 Not within Statute of Uses, 22. 
 Rule in Dearie v. Hall not applicable to, 49. 
 Within 13 Bliz. c. 5, and 27 Eliz. c. 4.. .31, 33. 
 Within Statute of Frauds, 22. 
 
 CHILD— 
 
 Advancement of, 79. 
 
 Satisfaction of legacy to, 187. 
 
 Defective execution of power, aided in favour of, 391. 
 
 Fraudulent appointment by father to, 430, 431. 
 
 CHOSE IN ACTION— 
 Assignable in equity, 45. 
 Assignable, now, at law also, 46. 
 Assignee of, takes subject to equities, 62, 359. 
 
 CLAIM OF RIGHT— 
 
 As a ground for injunction, 522. 
 
 CLAYTON'S CASE, THE RULE IN— 
 
 As regards running accounts, 470. i 
 
 As between guaranteed and other accounts, 470. 
 As between the trust funds of divers trusts, 471. 
 
 " CLOGGING " REDEMPTION— 
 What is, and what is not, 238, 239. 
 
INDEX. 565 
 
 CO-EXECUTORS— 
 
 Not liable, each, for the others, 113. 
 
 Acknowledgment of debt by one only, effect of, 197, 224, 225. 
 
 COLLATERAL ADVANTAGE— 
 
 Mortgagee when not accountable for, 259, 260. 
 
 COLLATERAL SECURITIES— 
 
 Delivery up of, to surety, 438, 444. 
 Delivery up of, on redemption, 262 . 
 
 COMMERCIAL PURCHASES— 
 No survivorship in, 16, 86. 
 Constructive notice, not applicable to, 268. 
 
 COMMITTAL FOR CONTEMPT— 
 A mode of enforcing injunction, 525. 
 In case of married women, 350. 
 In case of infant wards, 377 . 
 
 COMMITTAL FOR DEBT— 
 Generally, 551, 552. 
 None, of married woman, 350. 
 
 Except for ante-nuptial debts, 350. 
 And for rates, 350. 
 
 COMMON AGENT— 
 
 Being solicitor, 271, 272. 
 
 Being secretary of company, 271. 
 
 COMMON LAW PROCEDURE ACTS— 
 Act 1852... 323, 449. 
 Act 1854... 449. 
 Act 1860... 323. 
 
 COMPANIES— 
 
 Power of, to borrow, 236. 
 Mortgages by, 236. 
 
 Of calls, 236. 
 
 Of undertaking, 236. 
 Lien of, on shares, 318. 
 Estoppel of, by certificate, 428. 
 
 COMPANIES ACT, 1862— 
 
 s. 43 (Register of mortgages), 305. 
 
 B. 164 (Fraudulent preferences), 413. 
 
 B. 165 (Remedy against delinquent directors), 408, 414. 
 
 COMPANIES ACT, 1867— 
 
 s. 38 (Disclosure of contracts), 414. 
 
 COMPANIES (DIRECTORS' LIABILITY) ACT, 1890— 
 s. 3 (Prospectuses), 407. 
 
 COMPANIES ACT, 1900— 
 
 s. 7 (Filing of contracts, &c.), 413. 
 s. 10, sub-3. 5 (Waiver clause), 413. 
 s. 14 (Filing of mortgages), 305. 
 
566 INDEX. 
 
 COMPANIES ACT, 1907— 
 
 s. 9 (Payment of interest out of capital), 414. 
 s. 10 (Registration of mortgages), 305. 
 s. 14 (irredeemable debentures), 237. 
 s. 32 (Relief of honest directors), 106. 
 
 COMPANIES ACT, 1908— 
 
 s. 81 (Disclosure of contracts), 413. 
 
 s. 85 (Waiver), 413. 
 
 s. 88 (Paid-up shares), 414. 
 
 s. 91 (Payments out of capital), 414. 
 
 s. 100 (Register of mortgages), 305. 
 
 s. 103 (Irredeemable debentures), 237. 
 
 s. 105 (Contracts to lend), 476. 
 
 s. 107 (Floating securities), 274, 275. 
 
 B. 176 (Arrest), 552. 
 
 s. 207 (Winding up), 200. 
 
 s. 210 (Fraudulent preferences), 413. 
 
 s. 215 (Prospectuses), 407. , 
 
 s. 267 (Limited partnership), 460. 
 
 s. 279 (Relief of directors), 106. 
 
 COMPENSATION— 
 
 For land taken compulsorily, belongs to mortgagee, 289. 
 
 For extinction of public-house licence, 289. 
 
 On sale of land, for deficiency of acreage, 489, 502. 
 
 COMPOSITION DEEDS— 
 
 Fraud in connection with, 430. 
 
 Effect of i'ailure to pay agreed instalments, 322. 
 
 Reservation of rights against" surety, 444. 
 
 COMPOUND INTEREST— 
 Against trustee, 134, 135. 
 Against mortgagee, 257. 
 
 COMPROMISE— 
 
 In action, may defeat solicitor's lien, 315. 
 Requisites to validity of, in general, 397 . 
 Injunctions to enforce, 474. 
 Setting aside of, ior fraud, 397, 398. 
 
 COMPULSORY PURCHASE— 
 
 Of land in mortgage, compensation goes to mortgagee, 289. 
 
 COMPULSORY REDEMPTION- 
 
 None, of one only of two or more properties, 281 . 
 
 CONCURRENCE— 
 
 In breach of trust, 135. 
 
 CONCURRENT JURISDICTION— 
 
 Where equity has, with common law, 3, 388. 
 Growth of, incidentally, 388. 
 
 CONDITIONS— 
 
 Annexed to legacies, 155, 156. 
 Annexed to appointments, 173. 
 Precedent to contract, 494. 
 
 To title, 496. 
 
 To right of action, 514. 
 
INDEX. 567 
 
 CONDITIONS OF SALE— 
 When misleading, 486, 492. 
 When depreciatory, 486, 492. 
 Giving right of rescission to vendor, 507. 
 Excluding compensation, for deficiency of acreage, 602. 
 Alteration of, at auctions, 480, 481 . 
 
 CONFIRMATION— 
 
 Of wrongful dealings with trust funds, 136. 
 Of fraudulent contracts, 409. 
 Of infant's contracts, 416, 417. 
 
 CONSIDERATION- 
 Varieties of, 36. 
 Illegality in, 14. 
 Inadequacy of, 411, 496. 
 Suing on, or on bill or note, 54. 
 
 CONSOLIDATION OF MORTGAGES— 
 Distinguished from tacking, 279, 280. 
 None, where no default, 280. 
 Abolition of, 280. 
 
 Even as regards costs, 280. 
 
 CONSTRUCTIVE FRAUD— See Fraud in Equity. 
 
 CONSTRUCTIVE NOTICE— 
 
 (1) When actual notice of one suggestive fact, 267. 
 
 (2) When inquiry purposely avoided, 267, 268. 
 
 (3) Through agent, 270. 
 
 (3o) Through common agent, 271. 
 (3ft) Through solicitor — 
 
 (1) In the business itself, 271. 
 
 (2) In antecedent business, 270, 271. 
 
 CONSTRUCTIVE TRUSTEE— 
 May have remuneration. 111. 
 Chargeable as, from handling trust funds, 130. 
 Is protected by Statutes of Limitation, 111. 
 
 CONSTRUCTIVE TRUSTS— 
 Varieties of: — 
 
 (1) Vendor's lien, 87, 311. 
 (lo) Vendee's lien, 89. 
 
 (2) Renewal of lease by trustee, &c., 91. 
 
 (3) In respect of improvements on land, 92. 
 
 By tenant for life, 93. 
 By trustee, 92, 94. 
 
 (4) Heir of mortgagee used to be trustee, 94. 
 
 And is still so, as to copyholds, 95. 
 (4o) Legal representative, trustee for beneficial devisee, 
 95, 96. 
 
 (5) Solicitor of selling mortgagee, as to surplus sale-pro- 
 
 ceeds received, 96. 
 
 CONTEMPT OF COURT— 
 Marrying ward of court, 377. 
 Disobeying injunction, 525. 
 Committal for, 377. 
 
568 
 
 INDEX. 
 
 CONTINGENT INTERESTS AND POSSIBILITIES— 
 Assignable in equity, 46. 
 Assignable now at law also, 47. 
 
 CONTINGENT LEGACY— 
 Appropriation to meet, 147. 
 Given to child, maintenance out of, 155. 
 Not, in general, a satisfaction of a debt, 185. 
 
 CONTINUING LIABILITY— 
 
 Of mortgagor, on his covenant to pay, 292. 
 Of surety, on guarantee, 436. 
 
 CONTINUOUS ACTS— 
 Contracts involving, 475. 
 
 CONTRACT— 
 
 Repudiation of, by purchaser, 506. 
 Rescission of, by vendor, 507. 
 Specific performance of — 
 
 Directly, 474. 
 
 Or by means of injunction, 479. 
 Injunction against completion of, 494. 
 Part-performance of, 482, 483. 
 
 CONTRIBUTION— 
 
 As between co-trustees, 115, 116, 440. 
 
 As between co-directors, 440. 
 
 As between co-promoters, 440. 
 
 As between specific devisees and legatees, 218. 
 
 As between divers properties Ln mortgage, 214, 215. 
 
 As between co-sureties, 439, 440. 
 
 None, between co-tortfeasors, 440. 
 
 CONTRIBUTORY MORTGAGE— 
 
 A breach of trust, unless authorised, 103. 
 
 CONTRIBUTORY SALE— 
 
 Generally, 103, 104. 
 
 Under Trustee Act, 1893... 104. 
 CONVERSION- 
 
 Equitable principles of, 157. 
 
 (1) What words are necessary to, 157. 
 
 (2) Time from which conversion takes place, 158. 
 
 On sales under Lands Clauses Act, 159. 
 
 Where dependent on option of purchase, 159 et aeg. 
 
 (3) Effect of, generally, 162. 
 
 As regards death duties, 162. 
 
 (4) Results of failure of, — 
 (ffi) Total failure — 
 
 Deeds and wills alike, 163. 
 (5) Partial failure — 
 (««) Under wills — 
 
 (1) Undisposed of proceeds of land result to heir, 
 
 163. 
 Doctrine does not apply, in general, to sale by 
 the Court, 163. 
 Cases in which the doctrine does (even in that 
 case) apply, 164. 
 
 (2) Undisposed of money results to personal repre- 
 
 sentatives, 164. 
 (6J) Under deeds — 
 
 Property results to settlor, 165. 
 
INDEX. 569 
 
 CONVERSION OF RESIDUE— 
 Time for, 124. 
 Tenant for Ufe, rights of , until, 124, 125. 
 
 CONVEYANCING ACT, 1881— 
 
 s. 3, 8ub-s. 6 (Attested copies), 505. 
 
 o. 4 (Executor's conveyance), 95, 162. 
 
 o. 5 (Discharge of incumbrances), 493. 
 
 o. 10 (Mortgagor suing), 6, 251. 
 
 a. 14 (Relief of lessees), 323. 
 
 a. 15 (Transfer in lieu of redemption), 244. 
 
 3. 16 (Mortgagee's production of title-deeds), 260, 261. 
 
 o. 17 (Consolidation of mortgages), 280. 
 
 s. 18 (Leases of mortgaged estates), 252. 
 
 ». 19 (Timber), 255. 
 
 ss. 19 — 24 (Receivers of, and sales of, mortgaged estates), 255, 
 
 288. 
 s. 25 (Sale by Court), 285. 
 
 s. 30 (Descent of trust and mortgage estates), 95. 
 ss. 31—34 (New trustees), 138. 
 
 ». '39 (Alienation by married women), 178, 236, 292, 341. 
 0. 42 (Management of infants' estates), 373, 376. 
 s. 43 (Maintenance of infants), 155. 
 s. 55 (Receipts and receipt clauses), 62, 65, 89. 
 3. 56 (Receipts and receipt clauses), 62, 89. 
 o. 70 (Purchaser, where order of Court), 405. 
 
 CONVEYAJsrCING ACT, 1882— 
 
 Regarding constructive notice, 272. 
 Regarding separate sets of trustees, 139. 
 Regarding transfer in lieu of redemption, 244 . 
 
 CONVEYANCING ACT, 1892— 
 
 Regarding relief against lessee's breaches of covenant, 323, 
 
 324. 
 Regarding separate sets of trustees, 139. 
 
 COPYHOLDS— 
 
 Within Statute of Frauds, 22. 
 Within Locke King's Acts, 214. 
 Not within Statute of Uses, 22. 
 Not within Land Transfer Act, 95. 
 Escheat of, to lord or to crown, 84. 
 Descent of estate in, 95. 
 Of public trustee, 142. 
 Covenants to surrender, 27. 
 Declarations of trusts of, 28. 
 Partition of, 535. 
 Forfeiture of, 325, 326. 
 
 COPYRIGHT— 
 
 Subjects in which it exists, 526 let seq. 
 Growing piracy of, action for, 530. 
 
 COSTS ^ 
 
 Right of solicitor-trustee to, 106, 107, 423. 
 Right of solicitor-mortgagee to, 107. 
 Contentious and non-contentious business, 423. 
 
570 
 
 INDEX. 
 
 COSTS — continued. 
 
 In administration actions generally, 210. 
 
 Apportionment of, 210. 
 Of mortgagees generally, 242, 278, 284. 
 In partition actions, 537. 
 Of investigating title, 509. 
 
 CO-SURETIES— 
 
 Contribution between, 439, 440. 
 Eelease of one, effect bf, 443. 
 
 COUNTY COURTS— 
 
 Administration of insolvent estates in, 200 et seg., 208. 
 Transfer into — 
 
 Of administration action, 207. 
 Of interpleader, 541. 
 
 COVENANT— . 
 
 To settle, 41, 181,182. 
 
 To pay or leave by will, 182. 
 
 To pay, in mortgage deed, 249. 
 
 Suin^ on, after foreclosure, 290, 291. 
 Continuing liability of mortgagor on, 292. 
 To use land in a specified way, 500, 512. 
 
 COVENANT, BREACH OF— 
 
 In connection with performance, 182, 183. 
 
 COVENANTS TO SETTLE— 
 Who may enforce them, 41. 
 Impounding to satisfy, 133. 
 After-acquired property of wife, 181, 182. 
 
 CREDITORS— 
 
 Legacies to, 151. 
 
 Satisfaction, doctrine of, as applicable to, 184, 185. 
 
 Provisions for, in administration action, 212. 
 
 Preference of, by executor, 194. 
 
 Marshalling as between, 227 et seq. 
 
 CREDITORS, FRAUDS UPON— 
 Under 13 Eliz. o. 5. ..31. 
 
 Under Bills of Sale Acts, 1878 and 1882... 305. 
 Under Bankruptcy Act, 1883. ..39 et seq. 
 
 CREDITORS, TRUSTS FOE— 
 Generally, 43. 
 Under deeds of arrangement — See Abeangement, Deeds of. 
 
 CROWN— 
 
 Title of, to bona vacantia, 84. 
 
 Escheat to, although a trustee, 84. 
 
 Title of, to lands of alien, formerly, 84. 
 
 Entitled to redeem mortgage, 241. 
 
 Not liable .to foreclosure, 281. 
 
 Bankruptcy Act, 1883, how far binding on, 203. 
 
 Debts due to — 
 
 (1) On record or specialty, 192. 
 
 (2) On simple contract, 193. 
 
 No undertaking by, as to damages, 526. 
 
INDEX. 571 
 
 CUETESY OF HUSBAND— 
 
 Entitles husband to redeem mortgage, 241. 
 
 In the case of separate estate of wife, 331 . 
 
 Defeated by wife's alienation, 331. 
 
 CY-PRES— 
 
 Doctrine of, where a general charitable intent, 70. 
 Limit to, 70. 
 
 DAMAGES— 
 
 Generally, for breach of contract, 474. 
 
 (1) Regarding goods, 474. 
 
 (2) Regarding lands, 480. 
 (a) Nominal, 480. 
 (6) Substantial, 480. 
 
 For misrepresentations by directors, 413, 414. 
 For loss of title deeds by mortgagee, 261 . 
 Recoverable on vendor and purchaser's summons, 509. 
 
 DAMAGES OR INJUNCTION— 
 When neither, 533. 
 When no discretion as to either, 533. 
 
 DEATH-DUTIES— 
 
 In the case of donatio mortis oausd, 146. 
 
 In the ease of conversion of land into money, 162. 
 
 DE BENE ESSE— 
 
 Evidence taken, in what cases, 545. 
 
 Manner of taking, formerly and at present, 545 . 
 
 Example of taking the evidence, 545. 
 
 DEBENTURES— 
 
 Are usually floating securities, 274. 
 Subject now to preferential debts, 275. 
 Remedies on, 283. 
 Registration of, necessity for, 305. 
 
 DEBTS— 
 
 Satisfaction of, by legacies, 184, 185. 
 Priorities among, 192, 193. 
 Provable in bankruptcy, 202 et seq. 
 Appropriation of assets to meet, 210, 211. 
 Statute-barred, 196 et seq., 220, 468. 
 Set-off against other debts, 467, 468. 
 Surety buying up, 441. 
 
 DECEASED WIFE'S SISTER'S ACT— 
 
 Construction of, as regards property-rights, 356. 
 
 DECLARATION OF CHARGE— 
 In the case of debentures, 283. 
 In the case of street improvements, 225, 501. 
 On property recovered or preserved, 312, 313. 
 
 DECLARATION OF RIGHT— 
 In lieu of injunction, 523. 
 
572 
 
 INDEX. 
 
 DECREE— 
 
 In administration action, 194, 196. 
 In foreclosure action, 282. 
 In partnership action, 454. 
 
 DEEDS— 
 
 Deposit of, 294. 
 Accidental loss of, 261, 390. 
 Lien on, 312 et seq. 
 
 DEFAULT OF APPOINTMENT— 
 Persons entitled in, 173. 
 
 DEFECT OF TITLE— 
 Effect of, generally, 496. 
 Bescission on ground of, 506. 
 
 DEFENCES TO SPECIFIC PERFORMANCE— 
 
 (1) Misrepresentation, 486. 
 
 (2) Mistake, 486. 
 
 (3) Misdescription, 488. 
 
 (4) Lapse of time, 491. 
 
 (5) Trickiness, 491. 
 
 (6) Hardship, 492. 
 
 (7) Breach of trust (or of prior contract), 493, 494. 
 
 (8) No contract, 494. 
 
 (9) No title, 496. 
 
 (10) Want of writing, 477, 481. 
 
 DEFENCES TO SUIT FOR ACCOUNT— 
 
 (1) Settled account, 463. 
 
 (2) Laches, 463. 
 
 (3) Statute of Limitations, 463. 
 
 DELAY— 
 
 Effect of, generally, 7, 8. 
 On right to elect, 179. 
 On right of mortgagee to proceed against distributed 
 
 personal estate, 217. 
 On right to rescind contract, 135, 411, 412. 
 On right to specific performance, 491. 
 On right to injunction, 517. 
 
 DELIVERY— 
 
 Gifts effectual by, 28. 
 
 Essential to donatio mortis oausa, 143. 
 
 DELIVERY UP— 
 Of securities, 438. 
 Of title-deeds, 505. 
 
 DEPOSIT, MORTGAGES BY— 
 Generally, 294 et seq. 
 In case of copyholds, 295. 
 In case of registered lands, 296. 
 
 DEPRECIATORY CONDITIONS, 483. 
 
 DESIGNS— 
 
 Generally, 530. 
 
INDEX. 573 
 
 DE SON TORT— 
 Trustees, 130, 352. 
 Executors, 352. 
 Other persons generally, 352. 
 
 DEVISEE AND HEIR— 
 Joint liability of, 198. 
 
 DIRECTION TO PAY DEBTS— 
 Effect of, generally, 198. 
 
 DIRECTORS— 
 
 Fiduciary position of, 109. 
 LiabiUty of, 407, 408, 440. 
 Remedy against, for breach of trust, 109. 
 
 Or for misfeasance, 408. 
 Now protected by time, 106. 
 Contribution as jbetween, 440. 
 
 DISABILITIES— 
 
 Of infancy, 416 et seq. 
 
 Of coverture, 418. 
 
 Of lunacy, 415. 
 
 Provisions for obviating, on partition, 535. 
 
 DISAFFIRMANCE— 
 Of fraud, 409. 
 Of a fraudulent purchase, 304. 
 
 DISCHARGE IN BANKRUPTCY— 
 Effect of, 498. 
 
 DISCLAIMER OP LEGAL ESTATE— 
 By trustee, when trust is by will, 98. 
 When trust is by deed, 98 . 
 
 DISCOVERY— 
 
 Equitable jurisdiction in, origin of, 543. 
 Defences to, 543. 
 
 DISCRETIONS AND DUTIES— 
 Of trustees, distinguished, 102, 103. 
 
 DISENTAILING DEED— 
 
 Agreement to execute, enforcement of, 405. 
 Rectification of, 405. 
 
 DISPOSSESSION OP MORTGAGOR— 
 By mortgagee, 253. 
 
 DISSOLUTION OF PARTNERSHIP— 
 
 (1) By agreement of the parties, 452. 
 
 (2) By judgment of the Court, 452 cl seq. 
 
 (3) By operation of law, 451. 
 
 DISTRIBUTION, STATUTES OF— 
 
 Share under, in cases of performance, 182, 183. 
 Next of kin under, title of, 53. 
 
 DIVIDENDS— 
 Payment of — 
 
 In administration, 202. 
 In bankruptcy, 206. 
 
674 INDEX. 
 
 DlYIB'EJ^DS—contimied. 
 Unclaimed, 211. 
 Contract for sale of, enforcement of, 478 . 
 
 DIVORCE AGREEMENTS— 
 Enforcement of, 474. 
 
 DONATIO MORTIS CAUSi— 
 
 Must be in expectation of death, 143. 
 
 May be subject to a condition, 143. 
 
 Delivery essential to, 143, 144. 
 
 Delivery of essential means of obtaining, 144. 
 
 What is, and what is not, a sufRcient delivery, 144. 
 
 Things which may, or may not, be given as, 144, 145. 
 
 How it differs from a legacy, 145 . 
 
 How it differs from a gift inter vivos, 146. 
 
 DOUBTFUL TITLES— 
 
 Objection to specific performance, 496. 
 
 DOWER— 
 
 Legacy in lieu of, 149. 
 Election with reference to, 176. 
 Entitles to redeem mortgage, 241. 
 
 DRUNKENNESS— 
 
 Habitual, of husband, 346. 
 Habitual, of wife, 346 . 
 
 DURESS, 416. 
 
 DUTIES AND DISCRETIONS, 102, 103. 
 
 EARNINGS— 
 
 (1) Of bankrupt, 497, 498. 
 
 (2) Of married woman, 346, 347. 
 
 ECCLESIASTICAL BENEFICE— 
 Not in general mortgageable, 235. 
 Cases in which it may be mortgaged, 235, 236. 
 
 ELECTION- 
 
 Foundation of the equitable doctrine of, 170. 
 Two courses open to elect between — 
 
 («) Under instrument, 170. 
 
 (b) Against instrument, 170, 171. 
 Ratification distinguished from election, 172. 
 Two bequests of testator's own property (onerous and bene- 
 ficial), not a case of election, 172, 173. 
 Case of donor not adding any property of his own, 171. 
 Case of donor adding some property of his own, 172. 
 Election under powers, 173. 
 
 (a) As to person entitled in default, 173, 174. 
 
 (b) As to person entitled under power, l73. 
 Direction modifying appointment, when valid, 173. 
 Where instrument ineffectual, usually no election, 174. 
 Derivative interests, 176. 
 
 Under covenants (of married woman) to settle, 177. 
 Evidence dehors the instrument, not admissible, 178. 
 
INDEX. 575 
 
 ELEGIT— 
 
 Difficulty in issuing, 6. 
 When it will not issue at all, fr. 
 
 ELIZABETH, STATUTES OF— 
 Against frauds on creditors, 31. 
 Against frauds on subsequent purchasers, 33. 
 Not applicable to gifts to charities, 73. 
 
 ENTRY, EIGHT OF— 
 In mortgagee, 246. 
 
 In case of remainders, 248. 
 For forfeiture, 322, 323. 
 
 In case of copyholds, 325, 326. 
 
 EQUALITY IS EQUITY— 
 
 Leaning in equity against joint-tenancies, 15, 16. 
 Shares equal, where equity exercises a power-trust, 61. 
 
 EQUITABLE— 
 Assets, 195. 
 Assignment, 46 et seq. 
 Bail, 551, 552. 
 Charge, 296. 
 Defence, 11, 511, 512. 
 Ejectment, 6, 512. 
 Mortgage, 294, 295. 
 Relief, 4, 6. 
 Remedy, 4, 6. 
 Right, 4. 
 Title, 511. 
 Waste, 518. 
 
 EQUITABLE ASSIGNMENT— 
 Generally, 46. 
 Naked possibilities, 46. 
 Contingent interests and possibilities, 47. 
 Policies of life and marine insurance, 48. 
 Debts and other legal choses in action, 48. 
 A mere mandate is not, 49. 
 A cheque is not, 49. 
 
 No assignment, where fund not yet specific, 49. 
 Notice to legal holder, necessary to perfect title, 49. 
 Stop-order in aid of, 52. 
 Assignee takes, in general, subject to equities, 52. 
 
 Exceptions to this rule, 54. 
 Contrary to public policy, 55. 
 AfFected by champerty and maintenance, 56. 
 By incapacitated persons, 57. 
 
 EQUITABLE LIEN— 
 
 Vendor's, for unpaid purchase-money, 10, 87, 215. 
 
 And for expenses of improvements, 317. 
 Vendee's, for purchase-money paid, 89, 90, 215. 
 
 EQUITIES— 
 
 Being equal — 
 
 (1) First in time prevails, 10. 
 
 (2) Law prevails, 11. 
 
576 INDEX. 
 
 EQUITIES— eo«<M«<e<Z. 
 
 Are sometimes equal to estates, 13. 
 
 Assignee takes, in general, subject to, 56, 465, 466. 
 
 Enforcement of, against mortgagees of ships, 310. 
 
 EQUITY ACTS IN PERSONAM— 
 Meaning of maxim, 17. 
 Limits of maxim, 18. 
 
 EQUITY AGAINST EQUITY, 12, 293. 
 
 EQUITY AIDS THE VIGILANT, 14. 
 
 EQUITY, DELAY DEFEATS, 14. 
 
 EQUITY DELIGHTETH IN EQUALITY, 15. 
 
 EQUITY FOLLOWS THE LAW— 
 
 In originally concurrent jurisdiction, absolutely, 6. 
 
 In originally exclusive jurisdiction, discretionarily, 6. 
 
 EQUITY IMPUTES AN INTENTION, &c., 17. 
 
 EQUITY LOOKS ON THAT AS DONE, &c., 17. 
 
 EQUITY LOOKS TO CLEAN HANDS, 14. 
 
 EQUITY LOOKS TO THE INTENT, &c., 17. 
 
 EQUITY OF UEDEMPTION— 
 Nature of, 240. 
 
 Distinguished from legal right of, 237, 238. 
 Devolution of, 241. 
 
 Bar of, under Statutes of Limitation, 246, 248. 
 Resulting, in mortgage ,of wife's estate for .husband's debt, 292, 
 
 293 
 "Clogging" of, 238, 239. 
 Foreclosure of, generally, 281 et seg. 
 Purchase of, by selling mortgagee, 285, 287. 
 
 EQUITY TO A SETTLEMENT— 
 
 Depends on the maxim, " Who seeks equity must do equity," 
 
 13, 359. 
 Wife permitted to assert her right as plaintiff, 360. 
 
 (1) As regards leasehold estates of wife, 360. 
 
 (2) As regards pure personal property of wife, 361. 
 
 (3) As regards realty of wife, 361. 
 
 No equity out of reversionary personal estate, 363. 
 
 Settlement must be on wife a?)d children, 367, 368. 
 
 Wife (not being an infant) may waive settlement, 368. 
 
 What will defeat, 309. 
 
 Amount of settlement, 369. 
 
 Form of settlement, 370. 
 
 Settlement, when binding as against creditors, 370. 
 
 EQUITY TO RE-CONVERT— 
 
 When none, 169. i 
 
 EQUITY, WHO SEEKS, MUST DO— 
 Illustrations of maxim, 13, 359. 
 
INDEX. 577 
 
 EQUITY WILL NOT SUFFER A WRONG, ko., 5, 518, 533. 
 
 ERRONEOUS PAYMENTS—* 
 By executors, 392. 
 When recoverable back, 396. 
 
 ESCHEAT— 
 
 None of freeholds, formerly, to crown, if any trustee, 84. 
 
 Sectis, now, 84. 
 None of copyholds, formerly, to lord, if any trustee, 84. 
 
 Secus, now, 84. 
 Payment of debts, &c., on, 84. 
 
 ESCROW, 66. 
 
 ESTATE DEVELOPMENT PLAN— 
 Production of, effect of, 516. 
 
 ESTATE DUTY, 146. 
 
 ESTATE TAIL— 
 
 Bar of, by married woman restrained from anticipation, 341 . 
 Agreement to bar, enforcement of, 404, 405. 
 No equity to a settlement out of, 362. 
 Partition in case of, 534. 
 Discovery in favour of, 643. 
 
 ESTOPPEL— 
 
 By negligence amounting to positive act, 10, 297, 613. 
 
 By standing by, 15, 428, 429. 
 
 By positive promise, 7, 8, 297, 298. 
 
 In ease of company — 
 
 (1) By certificate, 428. 
 
 (1) By certification, 428, 429. 
 
 EVIDENCE— 
 
 De bene esse, 545. 
 Preservation of, 544. 
 
 EXECUTED AND EXECUTORY TRUSTS— 
 Distinction between, 24. 
 
 As to trusts executed, equity follows the law, 24. 
 As to trusts executory, equity may or maj' not follow 
 the law, 24, 25. 
 Distinction between executory trusts in marriage articles and 
 
 in wills, 25. 
 Under marriage articles, Court decrees a, settlement in con- 
 formity with presumed intention, 25. 
 In wills. Court seeks for the expressed intention, 25, 26. 
 
 EXECUTION— 
 
 Generally, on judgment, 199 et seq. 
 
 Perfecting of, before bankruptcy, 201. 
 Equitable, where legal execution difficult, 6, 200. 
 
 "None, if no legal execution possible, 6. 
 For debt, against separate estate, 195, 333, 334, 342. 
 Avoidance of, in bankruptcy, 42, 205. 
 
 EXECUTOR— 
 
 Sale of leaseholds by, 64. 
 Sale of freeholds by, 64, 65. 
 
678 INDEX. 
 
 :EXECVT0U— continued. 
 
 His title to undisposed-of residue, before 1 Will. IV. c. 40... 85. 
 
 Want of, when supplied by Courts of Equity, 98, 99. 
 
 Care and diligence required of, 102, 103. 
 
 Liability of, for wilful default, 113, 114, 222, 223. 
 
 Power of, to compromise, 114. 
 
 When he may mortgage assets, 125. 
 
 Carrying on trade, liability and rights of, 126 et seq. 
 
 Bight of, to prefer creditor, 194. 
 
 May pay statute-barred debt, 194, 197. 
 
 Devastavit by, 196, 222. 
 
 Bar of remedy for, by time, 196, 224. 
 His liability, after distribution of assets, 223. 
 Retainer, by, 219 et seq. 
 
 Not charged for accidental loss of assets, 103, 392. 
 Liability of, for mortgage debts of testator, 216, 217. 
 Protection of, 103, 392. 
 
 Position of, under Land Transfer Act, 1897... 95, 96. 
 Of deceased partner, 455 . 
 
 EXECUTORS, ASSENT OF— 
 
 To legacies (specific and residuary), effect of, 147. 
 None required to donatio mortis causa, 145. 
 Under Land Transfer Act, 1897... 95. 
 
 EX NUDO PACTO NON ORITUR ACTIO, 26. 
 
 EXONERATION— 
 
 Of purchaser obtaining trustee's receipt, 62 et seq. 
 Of personalty from payment of debts, 214. 
 Since Locke King's Acts, mortgaged estate devolves cum onere, 
 214. 
 Unless contrary intention in will, 216. 
 
 EXPECTANCIES— 
 
 Assignment of, for value, 46. 
 Title to, accrual of, 347, 348. 
 
 EXPECTANTS— 
 
 Frauds upon, 426. 
 
 Perpetuation of testimony in favour of, 544 . 
 
 EXPRESS TRUSTS— 
 
 Express private trusts, 24. 
 
 (1) Executed and executory trusts, 24 . 
 
 (2) Voluntary trusts, and trusts for value, 26. 
 
 (3) Fraudulent trusts, 31. 
 
 (4) Trusts in favour of creditors, 43. 
 
 (5) Equitable assignments, 46. 
 
 (6) Secret trusts, 59. 
 
 (7) Powers in the nature of trusts, 60. 
 Express public [i.e., charitable] trusts, 67. 
 
 FACTORS— 
 
 Lien of, 311. 
 
 Sales and pledges by, 303. 
 
INDEX . 579 
 
 "FAIR PRICE"— 
 
 Distinguished from " full price," 426. 
 
 FAMILY ARRANGEMENTS— 
 Upheld, when and when not, 397. 
 Grounds for setting aside, 397, 398. 
 
 "fancy word," 531. 
 
 father- 
 Is guardian of child, 373. 
 May appoint guardian by deed or will, 373. 
 May have allowance for child's maintenance, 378, 379. 
 Advancement of child by, 79, 80. 
 Gifts by child to, when void and when not, 422. 
 
 FELON'S ESTATE— 
 
 Administration of, 225. 
 
 FIRE, DAMAGE BY— 
 
 Falling on purchaser, 393. 
 Falling on lessee, 393. 
 
 FLOATING SECURITY— 
 Nature of, 275. 
 
 Solicitor's lien not affected by, 275. 
 Debts having preference to, 275. 
 Remedies upon, 276. 
 
 FORECLOSURE— 
 
 Persons entitled to decree of, 240. 
 Charges by deed, entitled to, 196, 301, 307. 
 
 Secus, chargee by will, 196. 
 When right of, excluded, 226. 
 No right of, against crown, 281. 
 Form of judgment for, 283, 284. 
 In bankruptcy, 282. 
 In the case of foreign lands, 18. 
 Interest, arrears of, recoverable in, 244. 
 Opening of, 291. 
 Remedy by, time for, 246, 247. 
 
 Where debt itself barred, 301, 302. 
 Sale in lieu of, 285 et seq. 
 
 FOREIGN LAND— 
 
 Jurisdiction in respect of, 18, 19. 
 Election, in case of, 175. 
 
 FOREIGN PATENT— 
 
 Revocation of, for non-user in England, 526. 
 
 FORFEITURES— 
 
 Relief against, 322. 
 
 (1) In the case of leases, 323. 
 
 Purged by lessee exercising option of purchasp, 325. 
 
 (2) In the case of wills, none, 325. 
 
 (3) In the case of strict contracts, none, 325. 
 
 (4) As regards incidents of tenure, 325, 326. 
 Sometimes relievable as penalties, 326. 
 
 FORGETFULNESS— 
 
 Relief from mistake under, 400, 429. 
 
 PP 2 
 
680 
 
 INDEX. 
 
 FORTY YEARS' TITLE— 
 Right of purchaser to, 496. 
 Condition of sale reducing, 496. 
 
 FRAUD— 
 
 Varieties of, 406. 
 
 Affirmance of, or disaffirmance of, 304, 409. 
 
 By mortgagee, effect of, on hie own priority, 278, 297, 298. 
 
 May arise by statute merely, 413, 414. 
 
 FRAUD IN EQUITY— 
 
 I. Actual, varieties of, 406. 
 
 («) MlSEEPKESBNTATION, 406 et seq. 
 
 Must be of some material fact, 407. 
 
 The party misled must hare suffered damage, 407. 
 
 If misrepresentation can be made good, equity will 
 compel it, 408. 
 
 Ratification of, effect of, 304, 409. 
 (4) Concealment, 409 et seq. 
 
 Where a -legal obligation to disclose, 409. 
 
 Silence, when a fraud, 410. 
 
 (c) CONTEACTS 'FKAnDnLENT BY STATUTE, 413 et seq. 
 
 Fraudulent preferences, 413. 
 Non-disclosure of contracts, 413. 
 Waiver clauses, 413. 
 Misapplications of capital, 414. 
 One-man company frauds, 414. 
 («?) AEISING with EEFEEENCE to the CONDITION OF THE 
 INJUEED PAETY, 415 et Seq. 
 
 (1) Infancy, 416. 
 
 (2) Lunacy, 415. 
 
 (3) Drunkenness, 41S. 
 
 (4) Imbecility, 416. 
 
 (5) Undue influence, 416. 
 
 (6) Duress, 416. 
 
 (7) Coverture, 418. 
 
 II. CoNSTEUOTiVE, varieties of, 419. 
 
 (1) Contrary to the policy of the law, 419 et seq. 
 
 Marriage brokage contracts, 419. 
 Secret agreements in fraud of marriage, 419. 
 Rewards for influencing others in making wills, 420. 
 Contracts in general restraint of marriage, 420. 
 Contracts in general restraint of trade, 420. 
 Contracts in violation of public confidence, 420. 
 Neither party to an illegal agreement aided, in 
 general, 421. 
 
 (2) Arising from fiduciary relation between the parties, 
 
 421 et seq. 
 Gifts from child to parent, 422. 
 Gifts by wife to husband, 422. 
 Gifts by ward to guardian, 422. 
 
 And by quasi-wards to quasi-guardians, 422, 423. 
 Dealings between solicitors and clients, 423. 
 
 (a) Gifts, 423. 
 
 (J) Purchases, 423. 
 
 (o) Agreements as to costs, 424. 
 
indSx. 581 
 
 FRAUD IN 'EQVITY— continued. 
 
 II. CoNSTBUCTiVE, varieties of — continued. 
 
 (2) Arising from fiduciary relation — continued. 
 
 Dealings between trustee and cestui que trust, 425. 
 
 (o) Purchases, 425. 
 
 (i) Gifts, 425. 
 Dealings between principal and agent, 425. 
 Dealings between counsel, &c., and client, 426. 
 
 (3) Being injurious to the rights of third parties, 426 et seq. 
 
 Heirs, expectants, and reversioners, 426. 
 
 Unconscionable loans, generally, 426. 
 
 Post obits, 427, 428. 
 
 Extravagant sales of goods, 428. 
 
 Fraudulent standing by, 428. 
 
 Fraudulent forgetfulness, 429. ' 
 
 Fraudulent agreements at auctions, 429. 
 
 Fraudulent composition deeds, 430. 
 
 Fraudulent exercise of powers, 430, 431. 
 
 Secret agreements in fraud of powers, 431. 
 
 Fraudulent derogations, 433. 
 
 FRAUD ON MARITAL RIGHTS— 
 By intending wife, 371. 
 
 During treaty of marriage, 371, 372. 
 No fraud if husband knew, 372. 
 
 Or if his past conduct had been bad, 372. 
 
 FRAUDS, STATUTE OF— 
 
 Trusts required to be in writing by, 22, 36, 480. 
 
 Parol evidence, when admissible notwithstanding, 60, 400. 
 
 Mortgages by deposit, notwithstanding, 294. 
 
 Specific performance, notwithstanding, 481. 
 
 FRAUDULENT TRUSTS AND GIFTS— 
 
 (1) Under 13 Eliz. u. 5.. .31. 
 
 Generally, 31. 
 
 Settlement, voluntary, not necessarily fraudulent, 31. 
 
 Settlor being embarrassed at time, or becoming em- 
 barrassed in consequence, invalidates voluntary con- 
 veyance, 31, 32. 
 
 Settlement may, by matter ex post facto, become for 
 value, 33. 
 
 (2) Under 27 Eliz. c. 4.. .33. 
 
 Generally, 33. 
 
 Voluntary settlement of lands formerly void against sub- 
 sequent purchaser, mortgagee, or lessee, 33, 34. 
 Under Voluntary Conveyances Act, 1893, such settle- 
 ments are now valid, 35, 36. 
 Unless actually fraudulent, 36. 
 Chattels personal not within the statute of Eliz., 34. 
 Nor leaseholds subject to onerous covenants, 34. 
 Slight value added to meritorious consideration, effect of, 
 36. 
 
 (3) Under Bills of Sale Acts, 1878, 1882... 38, 306 et seq. 
 
 (4) Under Bankruptcy Act, 1883... 39 et seq. 
 
 FRIENDLY SOCIETY— 
 
 Moneys due from its treasurer, 193. 
 Life assurances of, assignable, 46. 
 
582 INDEX. 
 
 "FULL PEICE"— 
 
 Distinguished from " fair price," 426. 
 
 FUENITUEE— 
 
 Settlement of, 41. 
 
 PUTUEE PEOPEETY— 
 Of bankrupt, 497, 498. 
 
 Of married woman, covenant to settle, 177, 178. 
 Assignment of, 46. 
 Bill of sale of, 306. 
 
 GENEEAL— 
 Intent, 70. 
 Lien, 311. 
 Partner, 459, 460. 
 
 OENEEAL LEGACIES— 
 Abatement of, 148. 
 
 Marshalling of assets in favour of, 218, 230 et seq. 
 Impounding, as against, 133, 468, 469. 
 
 GIFT INTER VIVOS— 
 
 When efEectual, by delivery, 29. 
 
 When not effectual, without a deed, 29, 30. 
 
 How it differs from a donatio mortis causa, 146. 
 
 GIFT OVEE— 
 
 In case of charity, 73. 
 
 Of legacy, in terrorem, 155. 
 
 GIVING time- 
 To debtor, effect of, on surety, 442. 
 
 " GOOD HOLDING TITLE," 449. 
 
 GOODWILL— 
 
 A partnership asset, 458 . 
 Assignment of, 458. 
 Survival of, 458, 459. 
 
 GUAEANTEE— 
 
 Construction of, generally, 435, 436. 
 
 Effect of death on, 436. 
 
 When continuing, notwithstanding death, 436. 
 
 Eegulates rights of creditors against surety, 436. 
 
 Distinguished from insurance, 435. 
 
 GUAEDIANS— 
 
 Appointment of, 373, 374. 
 
 Varieties of, 373. 
 
 Estates of, in infant's property, 373. 
 
 Their powers over infant's property, 373, 374. 
 
 Must restrain improper marriage of ward, 375, 376. 
 
 Gift to, 422. 
 
 Quasi guardians, frauds by, 422, 423. 
 
INDEX. 583 
 
 HARDSHIP— 
 
 Often a proof of fraud, 411. 
 
 A defence to specific performance, 492. 
 
 No defence to action for breach of trust, 105, 106. 
 
 HEIR— 
 
 As a trustee for executor, 95. 
 
 Undisposed-of proceeds of sale of land result to, 163. 
 Liabilitjr of, for debts, 195, 196, 198. 
 Devisee, joint liability of, 198. 
 When affected by Locke King's Acts, 214 et seq. 
 Has no right of retainer out of assets, 222. 
 Has right to redeem mortgage, 241. 
 Devisee may establish will against, 549. 
 
 HEIRS, EXPECTANTS, AND REVERSIONERS— 
 Frauds upon, 426. 
 
 HE WHO COMES INTO EQUITY— 
 
 Must come with clean hands, 14, 491, 492. 
 
 HE WHO SEEKS EQUITY— 
 Must do equity, 13. 
 
 HIRE-PURCHASE AGREEMENTS— 
 When and when not bills of sale, 308. 
 When there is a valid hiring, 308. 
 
 HUSBAND— 
 
 Common law rights of, in wife's property, 327. 
 
 Common law duty of, to maintain wife, 328. 
 
 A trustee in equity for wife, of wife's separate estate, 328. 
 
 His curtesy, defeated by wife's alienation, 331. 
 
 His liability for wife's debts, formerly and now, 347. 
 
 His liability for wife's torts — 
 
 (1) Before marriage, 352, 353. 
 
 (2) During marriage, 351. 
 
 Rights of, to separate estate of wife's undisposed of, 332. 
 
 Frauds by, on wife, 474. 
 
 Frauds on, by wife, 348, 372. 
 
 Assignment by, to wife, effect of, 28. 
 
 Concurrence of, in deed acknowledged of wife, 167, 178. 
 
 Not now necessary, where wife a trustee, 352. 
 Loans to, by wife, 220, 350, 351. 
 
 IGNORANCE— 
 
 Excuse of, generally, 394. 
 
 No excuse for a contempt of Court, 377. 
 
 ILLEGALITY— 
 
 In bill of exchange or in note, 54. 
 
 In assignment of chose in action, 57. 
 
 In policy of life assurance, 79. 
 
 In trust, 225. 
 
 In partnership agreement, 450. 
 
 No specific performance, where, 474. 
 
 Injunction, on the ground of, 512. 
 
584 
 
 INDEX. 
 
 ILLUSOEY APPOINTMENTS, 433. 
 
 IMMORAL CONTEACTS— 
 
 No specific performance of, 474. 
 
 IMPLIED AND EESULTING TEUSTS— 
 
 (1) Purchase in the name of a stranger, 78. 
 
 Advancement, presumption of, 79. 
 
 (2) Eesulting trust of unexhausted residue, 83. 
 
 (a) As to realty, 84. 
 (6) As to personalty, 84. 
 
 (3) Eesulting trust of undisposed-of residue, 85. 
 
 (4) Eesulting trust under doctrine of conversion, 85, 163. 
 (6) Joint-tenancies, implied trusts arising out of, 86. 
 
 (6) Upon mortgage of wife's estate, 292, 293. 
 
 IMPOSSIBILITY— 
 
 Of condition of legacy, 155, 156. 
 
 Of fulfilment of covenant, 393. 
 
 Of fulfilment of absolute obligation, 393, 394. 
 
 Of rescinding, for fraud, 411, 412. 
 
 Of specifically performing contract, 475. 
 
 IMPOUNDING BENEFICIAL INTEREST— 
 Of trustee, for breach of trust, 133. 
 Of cestui que trusty in like case, 133, 342. 
 Priority of title by, 133, 134. 
 Of legatee of residue, 133. 
 Of general pecuniary legatee, 133, 468, 469. 
 Of speoifio legatee, 133. 
 Of covenantor, 133. 
 
 IMPEOVIDENT BAEGAINS, RELIEF FROM- 
 On the ground of accident, 394. 
 On the ground of fraud, 415, 426. 
 On account of duress, 415. 
 Or of drunkenness, 415. 
 
 INADEQUACY OF PEICE— 
 An element of fraud, 411. 
 
 Indicates that absolute sale may be a mortgage only, 239, 240. 
 In the case of dealings with heirs and expectants, 426. 
 Sometimes a defence to specific performance, 493. 
 
 IN ^QUALI JUEE— 
 
 Melior est conditio possidentis, 273. 
 
 INCIDENTS OF TENUEE— 
 
 Belief from forfeiture, in case of, 325, 326. 
 
 INCOME AND CAPITAL— 
 
 Distinguishing between, 124, 226. 
 
 As regards accretion to settled legacy, 154. 
 
 INCUMBENTS— 
 
 Dilapidations by, proof for, 193. 
 
 Retired, pension of, not mortgageable, 235. 
 
 Equitable mortgages by, 295. 
 
 INCUMBEANCES— 
 
 Discharge of, on sale, 210, 493. 
 
INDEX. 685 
 
 INDEMNITY— 
 
 Of executors, 126, 127. 
 
 Of receiver, 128, 255. 
 
 Of trustees, by cestuis que trustent, 117. 
 
 Of mortgagor, after seUiug equity of redemption, 292. 
 
 In case of lost bonds, bills, &c., 389, 390. 
 
 In case of shares (being trust funds), 421. 
 
 Quia timet generally, 117, 437, 546. 
 
 INFANTS— 
 
 Suita^by, must not be inequitable, 14. 
 
 Concurrence by, in breaches of trust, 135. 
 
 Misrepresentations by, binding on them, 484. 
 
 No specific performance against, 477. 
 
 Negative contracts of, not enforced by injunction, 520. 
 
 Interest payable on legacies to, 151. 
 
 Maintenance of, out of contingent legacy, 155. 
 
 Becoming wards, 374. 
 
 Father bound in general to maintain his children, 378. 
 
 Allowance to, for past and future maintenance, 379. 
 
 Where trust for accumulation, 380. 
 Charges upon the estates of, for necessary repairs, 376. 
 
 For maintenance, 379. 
 Management of estates of, 373, 374. 
 Partition in cases of, 535. 
 Settlements by, 378. 
 
 INFANTS, CONTRACTS OF— 
 
 (1) For necessaries, 416. 
 
 (2) For non-necessaries, 417. 
 
 (3) Being marriage-articles, 417. 
 
 (4) Being for money paid, 417. 
 
 (5) Being fraudulent, 417. 
 
 (6) Being incident to devises, 417, 418. 
 
 Or to other gifts, 418. 
 
 INJUNCTION— 
 
 Definition of, 510. 
 
 Enforcement of, by committal, 525. 
 
 I. Injunctions prior to Judicature Acts — 
 
 (1) Cases where equity would have stayed proceedings at 
 
 law, 511, 512. 
 
 (2) Cases where equity would not have stayed proceedings 
 
 at law, 512 . 
 
 II. Injunctions since Judicature Acts — 
 
 (A) In cases of contract, 512 et seq. 
 
 Supplemental to specific performance, 512, 513. 
 
 Injunction to enforce negative contract, 513, 
 514. 
 
 Injunction, although contract implied only> 
 516. 
 
 Injunction, against breach of statutory con- 
 tract, 517. I 
 
 (B) Injunctions against torts, 518 et seq. 
 
 (1) Waste, generally, 518. 
 
 Permissive waste not remediable by injunc- 
 tion, 519. 
 Nor ameliorative waste, 519. 
 Nor where waste (by usage) no waste, 519. 
 
586 
 
 INDEX. 
 
 INJXJNCTION—continued. 
 
 II. Injunctions Isinoe Judicature Acts — continued. 
 
 (B) Injunctions against torts — continued. 
 
 (2) Nuisances, 519 et seq. 
 
 (a) Public nuisance producing special damage, 
 519, 520. 
 Unless legalised by statute, 520. 
 (J) Private nuisance, 520. 
 
 Where injury irreparable, 521. 
 Or where claim of right, 521. 
 Varieties of — 
 
 Darkening ancient lights, 521. ■• 
 Obstructing access of air, 521. 
 Oeoasioning a subsidence, 521, 522. 
 Flooding a neighbour's land, 522. 
 Pollution (and further pollution) of 
 
 streams, 522. 
 Libels, slanders, &c., 524. 
 Threats, 524. 
 Boycotting, and watching and besetting, 
 
 524, 525. 
 Expulsion from club, 525. 
 
 (C) Injunctions in connection with patents, &c., 525. 
 
 (1) Patents, 525. 
 
 (2) Copyrights, 526. 
 
 (3) Trade marks, 530. 
 
 (4) Partnership matters, 448, 449. 
 
 (D) Miscellaneous — 
 
 To restrain marriage of ward, 377. 
 
 To enforce separation deed, 474. 
 
 To stay completion of contract for sale, 494. 
 
 INNOCENT USEE— 
 
 Of registered trade-mark, effect of, formerly, 531. 
 Now, 531. 
 
 IN PERSONAM— 
 
 Equity acts, 17, 511. 
 
 INSOLVENT ESTATES— 
 
 Administration of, in Chaucery, 200 et secj. 
 
 Administration of, in Bankruptcy, 207. 
 
 Eights of secured creditors in eases of, 207, 208. 
 
 INSTALMENTS— 
 
 Mortgage-money, when payable by, 245. 
 Improvement charges, repayable by, 93. 
 Order for payment of debt by, 207, 208. 
 
 INSUEANCE— 
 
 Eorfeiture on breach of covenant for, relief from, 323, 324. 
 
 Contract of, 435. 
 
 Want of interest, effect of, 79. 
 
 INTEEBST— 
 
 Payable on breach of trust, 134. 
 On legacies, 151. 
 
 In case of settled legacy, 151. 
 
 In case of settled legacy of residue, 152. 
 
INDEX. 587 
 
 mTER'EST— continued. 
 
 On legacies — oontiitued. 
 
 In ease of legacy to infant, 151, 155. 
 
 In case of legacy in lieu of dower, 151. 
 
 In case of legacy in satisfaction of debt, 151. 
 
 In case of specific fund, given by way of legacy, 151, 
 152. 
 On annuity, 152. 
 On charges generally, 296. 
 On debts, 206. 
 On redemption, and on foreclosure, of mortgages, 244. 
 
 Where judgment obtained for mortgage debt, 251. 
 
 Under certificate fixing day for redemption, 244. 
 Is at 4 per cent, in case of equitable mortgage by deposit, 
 296. 
 
 And on equitable charges generally, 296. 
 
 And on judgment for mortgage debt, 251. 
 
 When higher rate recoverable, 256. 
 
 When compound interest recoverable, 257. 
 On purchase-money, where possession taken, 504. 
 
 And even where possession not taken, 504. 
 
 And even where property unproductive of present 
 profit, 504. 
 
 INTEREST AND DUTY— ,S'ee Duty axd Interest. 
 
 INTERNAL MANAGEMENT— 
 Of company, generally, 415. 
 Where fraudulent, 415. 
 
 INTERPLEADER— 
 
 At common law, 538. 
 
 Requisites to, in equity, 538 et seq. 
 
 Cases for, 539, 540. 
 
 Cases not for, 538, 539. 
 
 Sheriff, position of, 540. 
 
 Procedure on, 540. 
 
 Transfer of, into County Court, 541. 
 
 IN TERROREM— 
 
 Legacy given, or given over, 155, 156. 
 
 INTESTATES' ESTATES ACT, 1884— 
 Escheat to crown and to lord, under, 84. 
 
 INVESTMENT— 
 
 Discretion of trustees as to, 103, 109. 
 
 Continuing existing investments, 119, 121. 
 
 Varying investments, 121. 
 Valuations for, by trustees, 102. 
 Limit of value for, generally, 165. 
 
 Effect, if limit exceeded, 165. 
 Range of investments authorised for trustees, 119 et seq. 
 A purchase, when authorised, is an investment, 121. 
 
 JOINT AND SEVERAL— 
 Liability of trustees, 115. 
 Of directors, 407, 413. 
 Of partners, 209, 457, 458. 
 Of sureties, 439. 
 
588 
 
 INDEX. 
 
 JOINT-MORTGAGEES— 
 
 No survivorship as between, 16, 86. 
 
 Effect, when they jointly purchase equity of redemption, 86. 
 
 JOINT-TENANCIES— 
 
 Equity does not favour, 15, 16. 
 
 None, where purchase-money advanced in unequal shares, 
 
 16, 86. 
 None, where mortgage-money advanced in equal or unequal 
 
 shares, 16, 86. 
 EuU survivorship where lands devised in joint tenancy, 86. 
 Lieu for improvements on property held in, 317. 
 
 For cost of renewing lease by joint-tenant, 317. 
 Partition in connection with, 534. 
 Effect of inarriage on, 16. 
 
 Effect of marriage settlement on, 16. 
 Resulting trusts, in cases of, 86. 
 
 JOINTRESS— 
 
 Right of, to redeem mortgage, 241. 
 
 JUDGMENT CREDITOR— 
 
 Was not within 27 Eliz. o. 4... 34. 
 
 Priority of, in administration of assets, 193, 201. 
 
 Where estate insolvent, 205. 
 Charge of, is within Locke King's Act, when, 214, 215. 
 Right of, to redeem mortgage, 241. 
 Tacking as regards, |274, 275, 303. 
 
 JUDICATURE ACT, 1873— 
 s. 24 (Fusion), 3, 4. 
 
 sub-s. 5 (Injunction), 610. 
 s. 25 (Fusion), 3, 4. 
 
 sub-s. 5 (Ejectment by mortgagor), 5, 251. 
 
 sub-s. 6 (Choses in action), 48. 
 
 sub-s. 8 (Injunction or receiver), 510. 
 s. 34 (Exclusive jurisdiction), 4, 448. 
 D. 51 (Lords Justices and Lunacy), 382. 
 
 JUDICATURE ACT, 1875— 
 
 o. 10 (Insolvent estates), 200 et seq. 
 
 JUDICATURE ACT, 1884— 
 s. 17 (Interpleader), 541. 
 
 JUDICIAL TRUSTEE- 
 Appointment of, 98. 
 Retirement of, 98, 99. 
 Removal of, 139. 
 
 JUDICIAL TRUSTEES ACT, 1896— 
 Appointment of trustee under, 98. 
 Relief under, in case of breach of trust, 105. 
 
 JURISDICTION IN EQUITY— 
 Nature of, 1. 
 Origin of, 2. 
 
 Modern fusion of, with law, 3. 
 Varieties of, 3. 
 Prior to Judicature Acts, 3. 
 
INDEX. 689 
 
 JUEISDICTION IN 'EQ.VITY— continued. 
 Since these Acta, 3, 4. 
 Auxiliary, generally, 3, 4, 542. 
 Concurrent, generally, 3, 4, 388. 
 Not lost, where law acquires jurisdiction, 390. 
 Over real estate abroad, 18. 
 
 (1) As against the contracting party, 18. 
 
 (2) As against the assignee of the contract, 19. 
 
 JUEISDICTION IN LUNACY— 
 
 Distinguished from jurisdiction in Chancery, 381, 382. 
 
 JUST ALLOWANCES— 
 
 To bailiffs of estates, 464. 
 
 To executors, 208, 209. 
 
 To mortgagees, 257, 258. 
 
 To partners, 455. 
 
 To co-owners on partition, 317, 537. 
 
 KEEPING DOWN INTEREST— 
 Generally, 225, 226. 
 Even when rents and profits are insufficient, 226. 
 
 KNOCK-OUT SALE, 429. 
 
 LACHES— 
 
 Bar, generally, to equitable relief, 15. 
 
 As against Attorney-General even, 15, 517. 
 Bar to an account, 463. 
 Bar to injunction, 517. 
 Bar to specific performance, 491. 
 
 LAND CEETIFICATE— 
 
 Deposit of, by way of mortgage, 295 . 
 
 LANDLORD AND TENANT— 
 
 Limited relief between, formerly, 323. 
 
 Now, 323, 324. 
 Interpleader as between, 539, 540. 
 
 LAND REGISTRY— 
 Registration in — 
 
 Of charges, 90, 264, 278. 
 
 And of deeds of arrangement, 45. 
 
 And of judgments and executions, 200. 
 
 LANDS CLAUSES CONSOLIDATION ACT, 1845— 
 Conversion under, 159. 
 
 Compulsory taking of mortgaged lands under, 288, 289. 
 Restrictive covenants, discharge of, under, 513. 
 
 LAND TRANSFER ACT, 1897— 
 
 Legal personal representative now trustee under, for bene- 
 ficial devisee or heir, 95, 96, 126, 551. 
 Administration under, 64, 95, 195, 218. 
 Retainer, not extended by, 222. 
 Pretenced titles, provision relative to, 56. 
 Legal estate in copyholds, not affected by, 95, 96. 
 
590 
 
 INDEX . 
 
 LAND TEANSFEE ACT, 1891 —continued. 
 
 No tacking, when mortgage registered under, 278. 
 Certificate of land, deposit of, by way of mortgage, 295. 
 Certificate of charge, deposit of, by way of sub-mortgage, 295. 
 
 LAW AND EQUITY— 
 Severance of, 1, 2. 
 Fusion of, 3, 4. 
 True effect of, 4. 
 
 LAW, COURT OF— 
 
 Opinion of, sometimes taken by Court of Equity, 542. 
 
 (1) In a legal matter — was binding in equity, 542. 
 
 (2) In an equitable matter— was for guidance only, 542. 
 
 LAW PREVAILS, WHERE EQUITIES EQUAL— 
 Generally, 11. 
 When defendant a purchaser for value without notice, 11. 
 
 (1) Equitable estate only against legal and equitable 
 
 estate, 11. 
 
 (2) Legal estate against equitable estate, 12. 
 
 (3) Equitable estate against equitable estate, 12. 
 
 (4) An equity only against an actual estate, 13. 
 
 LEASE— 
 
 Agreement for, where possession given, 17, 479. 
 Containing option of purchase, 160, 161. 
 Renewal of, 91, 261. 
 Relief in connection with, 323, 324. 
 
 LEASEHOLDS— 
 
 Not within Statute of Uses, 22. 
 
 Within Statute of Frauds, 22. 
 
 Within Locke King's Acts, 215. 
 
 Of wife, husband's rights in, 327, 329. 
 
 Survival of, to wife, 328, 359. 
 
 Of wife, equity to settlement out of, 359, 360. 
 
 After-acquired, of bankrupt, 497. 
 
 LEGACIES— 
 
 Suits for, only in equity, 147. 
 Unless executors assent, 147. 
 Or unless in cases of appropriation, 147. 
 Varieties of, and distinctions between, 148. 
 Priority of certain kinds of, 149. 
 Construction of — 
 
 (1) Where charged on land, 151. 
 
 (2) Where not so charged, 151. 
 
 Interest upon, from what date computed, in general, 151. 
 
 In the case of settled legacy, 151. 
 
 In the case of settled residue, 152. 
 Accretions to, when they go with the legacy and when not, 
 153. 
 
 And when as capital, and when as income, 154. 
 In satisfaction of debts — See Satisfaction. 
 Revocation of, under mistake, 404. 
 Conditions of forfeiture annexed to, effect of — 
 
 (1) Generally, 155. 
 
 (2) In case of settled legacy, 155, 156. 
 Set-off, in case of, 468. 
 
INDEX. 691 
 
 LEGACIES, CHARGE OF— 
 On real estate, effect of, 151. 
 What sufficient to create, 233. 
 
 LEGACY TO INFANT— 
 Maintenance out of, 155. 
 
 LEGACY TO WIFE— 
 
 In lieu of dower, &c., 149. 
 
 Subject to maintaining children, 153. 
 
 LEGAL PERSONAL EEPRESEN PATIVE- 
 
 Under Land Transfer Act, 1897, position of, 95, 96, 126, 195, 
 
 218, 551. 
 No judgment for administration of assets, until, 194. 
 Only interim protection, meanwhile, of assets, 194. 
 
 LEGATEE-DEBTOR— 
 Set-off, in case of, 468. 
 
 LEGITIMACY, DECLARATION OF, 644, 545. 
 
 LESSEES— 
 
 May redeem mortgages, 241. 
 
 Relief of, from forfeitures, 323, 324. 
 
 No relief, in general, in ease of accident, 393. 
 
 LIBEL— 
 
 Restrained by injunction, when, 524. 
 
 licence- 
 To take possession, 307. 
 To work patent, 260, 461. 
 
 LICENCE, PUBLIC-HOUSE, 289. 
 
 LIEN— 
 
 Varieties of, 311. 
 
 Vendor's, 87, 311. 
 
 Vendee's, 89. 
 
 Trustee's, for expenses of renewing lease, 91. 
 
 Life-tenant's, 91. 
 Of solicitor — See Solicitob'.'? LiE>r. 
 Banker's lien, 316. 
 Stock-broker's lien, 311. 
 On ship, for necessaries, 311. 
 Quasi liens — 
 
 For money advanced for improvements, 317. 
 
 Joint-tenant's, for costs of redecorations, 317. 
 
 Of company on shares, 318. 
 
 LIFE ASSURANCE, POLICIES OF— 
 Assignment of, 29, 47. 
 Comprised in mortgage, 247. 
 Frauds in connection with, 410, 411. 
 
 LIMITATION OF ESTATES— 
 
 In equity, if trust executed, 8, 25. 
 In equity, if trust executory, 8, 25, 26. 
 
692 
 
 INDEX. 
 
 LIMITATION, STATUTES OF— 
 
 In what sense equity bound by, 8, 9. 
 In case of — 
 
 Fraud, 9. 
 
 Negligence, 9. 
 
 Ignorance, 9. 
 Charities barred like ' individuals, 74. 
 As between trustees and cestui que trust, 112. 
 Under Trustee Act, 1888... 74, 112. 
 Time runs in favour of constructive trustees. 111. 
 For devastavit, 196, 224. 
 For administration of assets, 224. 
 As against solicitor's lien, 314, 315. 
 Creditors having a charge only, barred in twelve years, 193. 
 
 Even where an express trust, 195, 196. 
 Rights of mortgagee in posse -sion under, 246. 
 Eights of mortgagor in possession under, 247. 
 Time for suing; on mortgage deed, 246 ef seg. 
 
 In case of mortgage of reversion, 248. 
 
 On bond, or on covenant, 249. 
 In case of husband suing wife, 329. 
 Against husband, in respect of debt of wife, 248. 
 Twelve years, for administration action by creditors, 224. 
 Twelve years, as between mortgagors and mortgagees, 246. 
 Inapplicable to mortgages of personal estate, 249. 
 Unity of mortgagor and mortgagee, effect of, upon, 248. 
 
 LIMITED PARTNERSHIPS— 
 Constitution of, 459. 
 General partners in, 459. 
 Limited partners in, 459. 
 Management of, 459, 460. 
 Winding-up of, 460. 
 Apart from statute, 460. 
 
 LIS PENDENS— 
 
 Registration of, 199. 
 Assignment of, 55. 
 
 LIVERY COMPANIES (LONDON)— 
 Are not charities, 71. 
 
 LOAN OF MONEY— 
 
 For term certain, 239. 
 
 Implies a debt, 251. 
 
 Contract for, not enforceable, 477. 
 
 Save in case of company's debentures, 477. 
 By Queen Anne's Bounty, 236. 
 
 LOCAL BOARDS— 
 Complaints to, 523. 
 Injunctions against, 523. 
 
 LOCAL RATES— 
 
 Priority of, 204, 206. 
 
 LOCKE KING'S ACTS— 
 
 General construction of, 214, 216. 
 Exoneration of personal estate under, 214. 
 
INDEX. 593 
 
 LOCKE KING'S ACTS—continued. 
 Vendor's lien is within, 215. 
 Judgment is within, 215. 
 Other- charges within, 215, 216. 
 Estates tail not within, 214. 
 
 LORDS JUSTICES— 
 
 Jurisdiction of, in Lunacy, 382. 
 
 LOSS, ACCIDENTAL— 
 By executors, 103, 392. . 
 
 LOSS AND GAIN— 
 
 When no set-off of, 129. 
 Appropriation of, 129, 130. 
 
 LUNATICS (SO FOUND)— 
 
 Jurisdiction in equity, in respect of, 381, 382. 
 Lunacy Act, 1890, proceedings under, 382 et seq. 
 Maintenance of, 383. 
 Partition, in cases of, 535. 
 
 LUNATICS (NOT SO FOUND)— 
 
 Jurisdiction in equity in respect of, 385. 
 Maintenance of, 385. 
 
 In case of poor law guardians, 386, 387. 
 Exercise of power of sale by, 386. 
 
 MAINTENANCE— 
 
 Of infants, 378, 379. 
 Of lunatics, 383, 385. 
 Of pauper husband, &o., 81, 354. 
 
 MAINTENANCE OP INFANTS— 
 Father liable for, 377. 
 When father entitled to allowance for, 379. 
 When directed, notwithstanding trust for accumulation, 380, 
 
 MANDAMUS— 
 
 Injunction in lieu of, 511. 
 
 MANDATORY INJUNCTION, 510. 
 
 "MARKETABLE TITLE," 499. 
 
 MARRIAGE— 
 
 Of legatee, with consent, 155, 156. 
 
 Rights of husband in wife's property on, 327, 328. 
 
 Marriage brokage contracts, 419. 
 
 Contracts in general restraint of, 420. 
 
 MARRIAGE ACT— 
 
 Settlements under, 378. 
 
 MARRIAGE ARTICLES— 
 Generally, 25, 402. 
 Of infant, 417. 
 
 S. Q Q 
 
594 INDEX. 
 
 MARRIAGE CONSIDERATION— 
 Under 27 Eliz. u. 4... 34, 35. 
 Who within scope of, and who not, 37, 38. 
 Case of widow re-marrying, 38. 
 Case of widower re-marrying, 38. 
 
 MARRIAGE SETTLEMENT— 
 
 Voluntary limitations in, intermixture of, 38. 
 Praudu'ent, as against creditors, 31, 370. 
 In case of Infants marrying, 378. 
 Mistakes in, rectification of, 402. 
 
 MARRIED WOMAN— 
 
 Presumption of advancement, in case of, 79, 80. 
 Liability of, to poor law authority, 81, 354. 
 Impounding as against, 138, 342. 
 Concurrence of, in breach of trust, 136. 
 Alienation by, 329, 331, 364. 
 Survivorship of, right of, 359 et seq. 
 Powers of appointment in — 
 
 Exercise of, by, 333, 337, 350. 
 
 Release and 'extinguishment of, by, 364, 431. 
 Separate estate of, 327 et seq. 
 Equity to a settlement of, 359. 
 Engaged in trade, position of, 335, 350. 
 Contracts by,. 348, 418. 
 Ante-nuptial debts of, 336, 348, 352. 
 Breaches of trust by, 335, 351, 352. 
 Torts of, 334. 
 
 Before marriage, 352, 353. 
 Wills of, 349. 
 
 When a surety for her husband, 292, 293. 
 When an executrix, position of, 351. 
 
 MARRIED WOMEN'S PROPERTY ACTS, 1870, 1874r- 
 Separate estate under, 346, 347. 
 
 MARRIED WOMEN'S PROPERTY ACT, 1882— 
 Separate property, under, 347 et seq. 
 
 (1) In case of women married on or after 1st January, 
 
 1883.. .347. 
 
 (2) In case of women married before lat January, 1883... 
 
 347. 
 Married women, powers of, under — 
 
 (a) As regards contracts, 348. 
 
 (6) As regards actions, 350. 
 
 (o) As regards wills, 349. 
 
 {d) As regards loans to husband, 360. 
 Or to husband's firm, 351. 
 
 (e) As regards investments, 348. 
 Married woman, liabilities of, under, 348. 
 
 For ante-nuptial debts, 352, 353. 
 
 Eor debts contracted during marriage, 348. 
 
 For brefich of trust or devastavit, 351. 
 
 In case of pauper hu'sband or pauper children, 81, 354. 
 
 Liable to be made a bankrupt, 350. 
 Her deed formerly required to be acknowledged, 352. 
 
 Secus, now, 352. 
 
INDEX. 695 
 
 MAEEIED WOMEN'S PROPERTY ACT, 1882— continued. 
 Remedies of wife (civil and criminal) under, 353. 
 Wife as executrix, position of, 351. 
 Settlements not affected by, 355. 
 Resitraint on anticipation not affected by, 355. 
 
 MARRIED WOMEN'S PROPERTY ACT, 1884... 353. 
 
 MARRIED WOMEN'S PROPERTY ACT, 1893— 
 
 Married woman now contracts exactly as a man, 349. 
 And need not have separate property at date, 349. 
 Married woman now makes a will exactly as a man, 349. 
 And need not have separate property at date, 349. 
 And will operates aUo after discoverture, 349. 
 And without re-execution, 349. 
 
 MAERiED WOMEN'S PROPERTY ACT, 1907— 
 
 Trust estates, deed not now required to be acknowledged, 352. 
 
 MARRIED WOMEN'S (SUMMARY JURISDICTION) ACT, 
 1895— 
 Provisions of, 345. 
 Decisions upon, 345, 346. 
 
 MARSHALLING OP ASSETS— 
 Principle of, 227. 
 
 I. As between creditors, 227. 
 
 Simple contract creditors permitted to stand in the place 
 of specialty creditors as against realty, 227, 228. 
 
 Mortgagee or unpaid vendor exhausting the personal 
 estate, rights of the other creditors in such a case, 228. 
 
 II. As between beneficiaries, where the creditors have inter- 
 
 vened, 230. 
 Principle of, 231. 
 
 III. As between legatees, where some charged and others not 
 
 charged on real estate, 233. 
 As against sureties, 445. 
 
 MARSHALLING OF SECURITIES— 
 Generally, 228. 
 
 In favour of devisees and legatees even, 229. 
 In the case of sureties, 229, 445 . 
 
 MATRIMONIAL CAUSES ACT, 1878— 
 Separate estate under, 344. 
 
 MAXIMS OF EQUITY— 
 
 Equity will not suffer a wrong without a remedy, 5. 
 
 Equity follows the law, 6. 
 
 Where equities are equal, the first in time shall prevail, 10. 
 
 Where there is equal equity, the law must prevail, 11. 
 
 He who seeks equity must do equity, 13. 
 
 He who comes into equity must come with clean hands, 14. 
 
 Delay defeats equities, 14. 
 
 Equality is equity, 15. 
 
 Equity looks to tne intent rather than the form, 16. 
 
 Equity looks on as done what ought to have been done, 16. 
 
 Equity imputes an intention to fulfil obligation, 17. 
 
 Equity acts in personam, 17, 18, 19. 
 
 Q Q 2 
 
696 
 
 INDEX . 
 
 MEEGBE— 
 
 Where covenantor marries oovenantee, 183. 
 Where debtor ia appointed executor, 115. 
 
 MISDESCRIPTION— 
 
 In case of legatees, 403. 
 
 In ca«e of contracts for the sale of land, 488, 489. 
 
 MISFEASANCE— 
 
 Of directors, 413, 414. 
 
 MISLEADING CONDITIONS, 486, 492. 
 
 MISREPEESENTATION— 
 What is, 406. 
 
 Effect of, in equity, 406, 407. 
 When a defence to specific performance, 485. 
 By directors of companies, 407, 408. 
 Between vendors and purchasers, 406, 407, 483. 
 
 MISTAKE— 
 
 (1) At law, 398. 
 
 (2) In equity, 396. 
 
 (o) Being mistake of law, 396. 
 
 An agreement under a mistake of law binding, 396. 
 IJnless in the case of money paid to the Court's 
 
 ofBoer, 396. 
 Or unless the ignorance is so gross as to suggest a 
 fraud, 397. 
 Ambiguity, relief in case of, 399. 
 
 A compromise, entered into with full knowledge, upheld, 397. 
 Family compromises, entered into on full disclosure, upheld, 
 
 397, 398. 
 Relief by consent, and on equitable terms, 398. 
 (6) Being mistake of fact, 399. 
 ' (i) Fact must be material, 399. 
 
 (ii) Party having knowledge must, in general, have 
 been under an obligation to disclose the fact, 400. 
 Diversity of relief, according as mistake is — 
 (i) unilateral, 401. 
 or (ii) mutual, 401, 402. 
 Laches, effect of, where imputable, 401, 402. 
 Mistakes in marriage settleinents, 402. 
 Mistakes in wills, 403. 
 No relief, where defect fatal by statute, 404, 405. 
 
 MODUS ET CONVENTIO VINCUNT LEGEM, 238. 
 
 MONEY-LENDERS— 
 
 Now require to be registered, 427. 
 Must have one office only, 427. 
 
 Must do the business there, 427. 
 Contracts of, void otherwise, 427. 
 
 Even in equity, 427. 
 
 And even in a bond fide assignee for value, 57. 
 
 MONEY-LENDING— 
 
 Contracts of infant, 416, 417. 
 Unconscionable contracts, generally, 426. 
 Usually not specifically enforced, 477. 
 Jurisdiction under Money-Lenders' Act, 1900.. .427. 
 
INDEX. 597 
 
 MONEY PAID— 
 
 Under void conti-act of infant, 417. 
 
 Under mistake, wlien it may be recovered bacli:, 396. 
 
 MORTGAGES— 
 
 Definition of, 235. 
 
 What properties are mortgageable, 235. 
 
 What properties are not mortgageable, 236 . 
 
 Or only within limits and under reitriotiona, 236. 
 At common law, were estates upon condition, 237. 
 Interference of equity in respect of, 238. 
 "Once a mortgage, always a mortgage," 238. 
 For a term certain, 239. 
 
 Right of pre-emption may be given to mortgagee, 239. 
 Conveyance, with option of re-purchase, 239. 
 Forms of mortgage now in disuse — 
 
 (1) Viviim vadium, 240. 
 
 (2) Mortiium radium, 240. 
 
 (3) JFelsh mortgage, 240. 
 
 Modern mortgage, nature of equity of redemption in, 240. 
 Redemption of, 241. 
 
 Price of, 241. 
 
 Persons entitled to redeem, 241. 
 
 Successive redemptions, 242. 
 
 Arrears of interest recoverable on redemption, 244. 
 
 Compelling transfer instead of redemption, 244, 245. 
 Time to redeem, 245. 
 
 Statutes of Limitation, effect of, 246. 
 
 (1) Where mortgagee is in possession, 246. 
 
 (2) Where mortgagor is in possession, 247. 
 («) Mortgagor in possession, position of, 251. 
 
 Not accountable for rents and profits, 251. 
 
 Restrained from waste, if security insuflScient, 251, 252. 
 
 Is tenant at will to mortgagee, 252 . 
 
 Unless holding by re-demise, 252. 
 Could not make leases binding on mortgagee, 252. 
 
 Can do so now, 252. 
 Right of mortgagee to take possession, 253. 
 
 And to take possession oif^ part, 254. 
 (i) Mortgagee in possession, position of, 254. 
 Liable for tenant-right valuation, 253. 
 May have receiver, and sometimes also manager, 255. 
 Must keep estate in necessary repair with surplus rents, 
 257. 
 
 But not so as to " improve the mortgagor out of his 
 estate," 257. 
 Must account, 258. 
 
 Even althougli he has assigned the mortgage, 258. 
 Interest, rate of, 256. 
 
 When compound interest, 257. 
 How far, and to whom, accountable for back-rents, 258, 
 
 259. 
 Accountable for wilful default, 259. 
 Not bound to speculate, 259. 
 May have inquiry as to outlay, 259. 
 Not accountable for collateral advantages, 259, 260. 
 Annual rests against, when and when not directed, 260. 
 
598 INDEX . 
 
 MORTGAGES— eo»«M»«e(«. 
 
 (S) Mortgagee in possession, position of — continued. 
 
 Could not be compelled to produce mortgagor's title- 
 deeds, 260. 
 Can be compelled now, 260, 261. 
 Liability of, for loss of title-deeds, 261. 
 Cannot take a valid. lease from mortgagor, 261. 
 Or purchase froni himself, 261. 
 Second mortgagee may purchase from first, 261, 
 287. 
 Could not in equity make a binding lease, 252. 
 
 Can do so now, 252. 
 Renewing lease, holds subject to mortgagor's equity, 
 
 261. 
 Could not fell timber unless security insufficient, 262. 
 Can do so now, 262. 
 Remedies of mortgagee, 281. 
 
 (1) Foreclosure, 281. 
 
 Nature of, and time for, 281. 
 Judgment in, 282. 
 
 Against transferee of mortgage, 284. 
 
 (2) Sale, 285. 
 
 By Court in foreclosure action, 285. 
 
 Under power of sale in mortgage deed, 285. 
 
 Under 'power of sale in Conveyancing Act, 1881... 
 
 288. 
 On compulsory purchase, 288, 289. 
 
 (3) Distress under attornment clause, 289. 
 
 (4) Administration action, 290. 
 
 Mortgagee may pursue all his remedies concurrently, 290. 
 
 If mortgagee foreclose first, and then sue on the covenant, 
 
 he "opens the foreclosure," 291. 
 Mortgage followed by sale, and subsequently mortgage by 
 
 purchaser, continuing liability of mortgagor, 292. 
 The equity of redemption follows the limitations of the 
 
 original estate, 292. 
 
 MORTGAGEES— 
 
 Becoming entitled by adverse possession, 246, 247. 
 Settlement by, of the mortgage debt, 254. 
 Buying up mortgage debt for less, may charge for whole, 441. 
 Just allowances to, 257, 258. 
 
 MORTGAGE, EQUITABLE— 
 
 Of realty, by deposit of title-deeds, 294. 
 
 By deposit of receipt for purchase-money, 294. 
 By deposit of land certificate, 295. 
 Or of office copy, 295. 
 
 Of copy of Court Roll, 295. 
 Remedies upon, 295. 
 
 Recovery of possession on foreclosure, 295, 296. 
 Equitable mortgagee, priority of, 297, 298. 
 Legal mortgagee may be postponed to, for fraud or gross 
 
 negligence, 298. 
 Interest on, rate of, 296. 
 
 MORTGAGES OF PERSONALTY— 
 
 (A) DifBerences between, and pledges — 
 (a) In their own nature, 300. 
 (i) As to remedies, 301. 
 
INDEX. 599 
 
 MORTGAGES OP F'EUSONAIjTY— continued. 
 
 (B) Differences between, and mortgages of realty — 
 (ff) Ab to remedies, 301. 
 (6) As to application of surplus, 303. 
 When the reversionary personal property falls into posses- 
 sion, 302. 
 
 MOTHER— 
 
 Her right to be guardian, 373. 
 
 MOTIVE— 
 
 Of legacy, in questions of satisfaction, 186. 
 Mistaken, in gift of legacy, 403, 404. 
 
 MUTUAL CREDIT— 
 
 Set-off, on ground of, 206, 467. 
 Tacking, on ground of, 303. 
 
 MUTUAL MISTAKE— 
 
 Remedy for, rectification not rescission, 401. 
 In case of marriage settlement, 402. 
 
 NECESSARIES— 
 
 Liability of infants for, 416. 
 Liability of lunatics for, 415. 
 Supplied to married woman, liability for, 418. 
 
 NE EXEAT REGNO— 
 Writ of, 551. 
 
 In case of equitable debt, 551. 
 Under divers statutes, 552. 
 Under Companies Act, 1908. ..552. 
 
 NEGATIVE CONTRACT— 
 
 Enforced by injunction, 515. 
 Enforced, although implied only, 516. 
 
 Not enforced, where dependent on affirmative, 515. 
 
 NEW TRUSTEES— See Trustees, New; Trustees, Old and 
 New. 
 
 NEXT OF KIN— 
 
 Rights of, where trust of personal estate fails, 83. 
 Rights of, on a conversion in equitjf, 163, 164. 
 Administration action by, time for, 224. 
 
 NO CONTRACT— 
 
 A defence to specific performance, 494. 
 
 NO default- 
 No consolidation, 280. 
 No foreclosure, 281. 
 
 NO profits- 
 No remuneration, 455. 
 
 NON-ACTIONABLE CLAIMS— 
 Not the subject of set-off, 468. 
 When the subject of retainer, 220, 468. 
 
600 
 
 INDEX. 
 
 NON-DISCLOSURE— 
 
 By parties to compromiBe, 397. 
 
 By persons effecting insurances, 410. 
 
 By directors, of contracts, 413, 414. 
 
 NOTICE— 
 
 (I.) Of prior right or claim, 262. 
 Effect of, generally, 262. 
 
 If express, might supply want of registration, 263. 
 But not now, as regards lands in Yorkshire, 264, 
 Except in cases of actual fraud, 264. 
 Of prior contract not speaifieally enforceable, 263. 
 Case of purchaser with notice, where his vendor bought 
 
 without, 265. 
 Case of sub-purchaser without notice, where his vendor 
 bought with, 265. 
 (la.) Of voluntary settlement, subsequent purchaser used not 
 to be affected by, 266. 
 Seotis, now, 266. 
 In the case of a mortgage of residue, 270. 
 In the case of the purchase or mortgage of a trustee-bene- 
 ficiary's share, 270. 
 May be actual or constructive, 266. 
 (a) Actual notice, 266. 
 
 What amounts to, 266. 
 (J) Constructive notice, 267. 
 
 (1) Where actual notice of some suggestive fact, 267. 
 
 Not regarded in commercial dealings, 268. 
 
 (2) Where inquiry purposely avoided to escape, 267. 
 
 (3) Notice to agent, notice to principal, 270. 
 Conveyancing Act, 1882, provisions of, as to, 272. 
 Of terms of lease, 269. 
 
 Of occupation or tenancy, 269. 
 (ll.) Of assignment of chose in action, 49 et seq. 
 Required to complete assignment, 49. 
 
 As regards equities arising subsequently, 52, 53. 
 Effect, where the trustees all die, to whom given, 
 51. 
 Priority acquired by, 50. 
 Form of, 51. 
 When not available, 52. 
 
 NOTICE TO COMPLETE— 
 
 Making time of essence of contract, 491. 
 
 NOTICE TO REPAIR— 
 
 Before ejectment by mortgagor, 6. 
 
 NOTICE TO TREAT— 
 
 When it effects a conversion of land into money, 159. 
 
 NOTICE TO USE PROBATE— 
 As evidence of devise, 550. 
 
 NO TITLE— 
 
 A defence to specific performance, 496. 
 
 NUISANCE— 
 Public, 519. 
 
INDEX. 601 
 
 NUISANCE — con tinued . 
 Private, 520. 
 
 Abatement of, 520. 
 
 Injunction against, 520, 521. 
 
 Where damage irreparable or continuing, 521. 
 
 Or where claim of right, 520 . 
 No injunction, in general, against Local Boards, 522, 523. 
 
 OBJECTIONS TO TITLE— 
 Being merely fanciful, 500. 
 
 OFFICIAL EEFERBE— 
 Accounts talcen by, 461. 
 
 OLD AGE PENSION, 55. 
 
 OLD TKUSTBES— jSee Trustees, Old and New. 
 
 OPEN CONTRACT— 
 
 Forty years' title in case of, 496. 
 
 Sanitary and improvement charges, incidence of, 501. 
 
 OPTION— 
 
 Between rectification and rescission, 401. 
 
 Between. sale and partition, 536. 
 
 Between specific performance and rescission, 506, 507. 
 
 In hire-purchase agreement, 304. 
 
 OPTION OF PURCHASE— 
 
 Conversion depending upon, in lease, 159 et seq. 
 
 (1) As -between real and personal representatives of 
 
 lessor, 159. 
 
 (a) Option previous to will, 159. 
 
 (1) General devise, 160. 
 
 (2) Specific devise, 160. 
 
 (b) Option subsequent to will, 160. 
 
 (2) As between real and personal representatives of lessee, 
 
 160, 161. 
 
 (3) As between the lessor and the lessee themselves, 161. 
 Option, exercise of, may save forfeiture, 325. 
 
 ORAL EVIDENCE— 
 
 In proof of secret trust, 60. 
 
 In proof of resulting trust, 81. 
 
 To raise case of election, 178. 
 
 In proof of satisfaction, 191. 
 
 In proof of accident, mistake, or fraud, 400. 
 
 OUTSTANDING DAY— 
 
 In mortgage of leasehold by demise, 288. 
 
 OUTSTANDING LEGAL ESTATE— 
 Getting in of, 10, 11. 
 
 By voluntary act, 273. 
 
 By act not purely voluntary, 274. 
 
 OUTSTANDING PERSONAL ESTATE— 
 
 Duty of trustees and executors to get in, 119. 
 Directions as to getting in, 209. 
 
602 INDEX. 
 
 PARAMOUNT— 
 Lien, 311. 
 Intent, 70. 
 Title, 253. 
 
 PARAPHERNALIA— 
 Nature of, 357. 
 
 Area of, now much narrowed, 358, 359. 
 Pledge of, by husband, redemption of, 358. 
 Wife cannot dispose of, during husband's life, 358. 
 Husband cannot dispose of, by will, 358. 
 
 PAROL AGREEMENT— 
 
 As to lands, generally, 477. 
 
 To give a mortgage of lands, void, 297. 
 
 Unless accompanied by deposit of title-deeds, 296, 297. 
 Before marriage, for a settlement, 36. 
 
 PAROL EVIDENCE— See Oral Evidence. 
 
 PARTIAL PERFORMANCE- 
 With abatement, 489, 502. 
 Where covenant to purchase and settle land, 181. 
 
 PARTIES TO ACTION— 
 For administration, 208. 
 For foreclosure or redemption, 241, 242. 
 For specific performance, 484, 485. 
 
 PARTITION— 
 
 Equitable jurisdiction in, origin of, 634. 
 In pais (i.e., without deed), effect of, 534, 536. 
 Cases in which partition will be directed, 536. 
 As to disabilities — 
 
 Provisions of Trustee Act, 1893.. .535. 
 
 And of Lunacy Act, 1890... 535. 
 
 And of Partition Acts, 1868 and 1874... 536. 
 Sale in lieu of, 536, 537. 
 Judgment for, form of, 536. 
 Costs of suit for, 537. 
 
 PARTNERSHIP— 
 
 Equity jurisdiction in, 448. 
 
 Specific performance of agreement to enter into, 448. 
 
 Injunction against omission of name of one of partners, 449. 
 
 Against carrying on another business, 449. 
 
 Against exclusion of partner, 449. 
 
 Against destruction of partnership property, 449. 
 Stay of proceedings, where agreement to refer, 449, 450. 
 Constitution of, 450. 
 Distinguished from part-ownership, 451. 
 Terms of, 461. 
 
 Continuance of, after term expired, 451. 
 Dissolution of, modes of — 
 
 (1) By operation of law, 451. 
 
 (2) By agreement of parties, 452. 
 (2«) By competent notice, 452. 
 
 (2 J) By expiration of agreed term, 452. 
 
 (3) By decree of Court, 452 et seq. 
 (3«) By award of arbitrator, 450. 
 
INDEX . 603 
 
 PARTNERSHIP— co»rt««e(i. 
 
 Account, only on dissolution, 453. 
 Receiver, on dissolution, 453. 
 Return of proportion of premium, 4S3. 
 Dissolution, terms of, as to payment of debts, &c., 454. 
 And as to distribution of surplus assets, 454. 
 And as to costs, 454. 
 Partner carrying on dissolved partnership, accountable, 456. 
 
 And where no profits, no remuneration, 455. 
 Representatives of deceased have no lien on partnership estate, 
 
 455. 
 Surviving partners may validly mortgage, 455. 
 In equity, land forming an asset of, is money, 456. 
 Judgment creditor, charge in favour of, 456. 
 Creditors may, on decease of one partner, go against sur- 
 vivors, or against the estate of deceased, 457. 
 Separate creditors paid out of separate estate before part- 
 nership creditors, 467. 
 Partnership creditors paid out of partnership fund before 
 separate creditors, 458. 
 The goodwill is an asset of the firm, 458. 
 
 When it should be expressly assigned, 458. 
 Survival of, on expiration of partnership term, 459. 
 And upon death of partner, 459. 
 
 PARTNERSHIP ACT, 1890— 
 
 8. 2 (Partnership and part ownership), 451. 
 
 s. 3 (Postponed proofs), 458. 
 
 8. 16 (Notice to active partner), 271. 
 
 8. 24 (Shares of partners), 451. 
 
 8. 30 (Rival business), 449. 
 
 8. 35 (Decree for dissolution), 452. 
 
 3. 41 (Dissolution of fraudulent partnership), 452. 
 
 s. 44 (Distribution of assets), 454. 
 
 s. 46 (Law and equity), 448. 
 
 PARTNERSHIPS (LIMITED) ACT, 1907... 459, 460. 
 
 PART-OWNERSHIP— 
 
 Distinguished from partnership, 451. 
 
 PART-PERFORMANCE— 
 
 What is, and what is not, 482. 
 
 Not confined to contracts regarding land, 483. 
 
 No effect from, if contract becomes impossible, 483. 
 
 PAST MAINTENANCE— 
 Of infant, 380. 
 Of lunatic, 385, 386. 
 
 PATENTEE— 
 
 May have account against infringer, 461. 
 
 PATENTS— 
 
 Jurisdiction in equity regarding, 525. 
 When patent of recent date, 525, 526. 
 Particulars of objections, 526. 
 Particulars of breaches, 526. 
 Licences to work, generally, 260, 461. 
 
604 INDEX , 
 
 PAY— 
 
 Assignment of, 55. 
 Mortgage of, 236. 
 
 PAYMENT INTO COURT— 
 
 Under Trustee Relief Act, 140. 
 
 Now under Trustee Act, 1893, s. 42... 140. 
 
 By Life Assurance Company, 140. 
 
 PEACE, BILLS OF, 647. 
 
 PENAL SUM— 
 
 Rules for distinguishing, 321. 
 
 In Building Society mortgages, 256. 
 
 PENALTIES— 
 
 Equitable jurisdiction as regards, 319. 
 
 Import prohibition, 319, 320. 
 
 Rules as to distinguishing, from liquidated damages, 321. 
 
 Are odious in law, 322. 
 
 PENSIONS— 
 
 Assignment of, 55. 
 Mortgage of, 236. 
 
 PERFORMANCE— 
 
 Equity imputes an intention to fulfil an obligation, 17, 180. 
 
 (1) Covenant to purchase land, and land is purchased, 
 
 180, 181. 
 
 (2) Covenant to pay or leave by will, and share under the 
 
 Statutes of Distribution, 182, 183. 
 
 PERPETUATE TESTIMONY, BILL TO, 345. 
 
 PERPETUITIES, RULE OF— 
 
 Inapplicable to gift to charity, 73. 
 
 Applicable, when and when not, to options in leases, 161. 
 
 Applicable, in what sense, to the restraint on anticipation, 338. 
 
 PERSONAL LIABILITY— 
 
 Of executor, for mortgage-debts, 217. 
 
 Of married woman, for debts, 334 et seg. 
 
 Of stake-holder or bailee, in interpleader, 539, 540. 
 
 PERSONALTY— 
 
 Mortgages and pledges of, 300. 
 
 Being reversionary, 302. 
 Contracts regarding, specific performance of, 478. 
 
 PEW-RENTS, 235. 
 
 PIECEMEAL, 
 
 Performance, 475. 
 
 PIN-MONEY- 
 
 Nature and object of, 357. 
 
 Wife can, at most, claim only one year's arrears of, 357. 
 
 Wife's executors cannot claim any arrears of, 357. 
 
 PIRACY OF COPYRIGHT— 
 
 Injunction against, 526 et seg. 
 Injunction against growing piracy, 530. 
 
INDEX . 605 
 
 PLEDGE— 
 
 Difference between, and mortgage of personalty — 
 
 (ff) In nature, 300. 
 
 (i) As to remedies, 300, 301. 
 Differences between, and mortgage of realty, 301, 307. 
 
 PLEDGOR AND PLEDGEE— 
 
 Pledgor, his right of redemption, 300. 
 Pledgee, his right to sell, 301. 
 Pledgee, his right of transfer, 302. 
 
 POLICE COURT allowance- 
 To wife, 55. 
 
 POLICY OF ASSURANCE— 
 Assignable in equity, 46. 
 Assignable now at law also, 47. 
 -When person paying premiums has lien on, 94. 
 In mortgage, 250. 
 
 Mortgagee's payment of premiums, effect of, 250. 
 Frauds in connection with, 410. 
 Illegal, title under, 79. 
 
 POLLUTION— 
 
 Of streams, restrained by injunction, 522. 
 
 Increase of, likewise restrained, 522. 
 
 At suit of riparian owner, not of stranger, 522. 
 
 Against co-pollutors, in one and the same action, 522. 
 Of underground water, 522. 
 
 POOR LAW— 
 Rates, 204. 
 Lunatics, 386, 387. 
 Married women, 81, 354. 
 
 PORTIONS— 
 
 Leaning against double, 188. 
 Satisfaction of, by legacy, 187. 
 
 POSITIVE ACT— 
 
 Of carelessness, will postpone first mortgagee, 10, 279, 298. 
 On part of public body, injunction available, 523. 
 
 POSSESSION— 
 
 Reduction into, of ohoses in action, 118, 119. 
 
 Of choses in action of wife, 327, 363 et seq. 
 Of mortgagor, quality of, 251. 
 Mortgagee, right of, to, 253, 254. 
 Under bill of sale, 307, 308. 
 
 When it is a part-performance, and when not, 482, 483. 
 Effect of giving, under contract of sale, 503. 
 Agreement to give by specified day, implies a title shown 
 by that day, 504. 
 
 POSSIBILITIES— 
 
 In real estate, assignable at law, 47. 
 
 Naked, assignable in equity, 46. 
 In personalty, assignable in equity, 46. 
 
 And now also, semble, at law, 47, 48. 
 
606 INDEX. 
 
 POST-OBIT BOND— 
 
 When relieved against, 427. 
 Terms of relief, 427, 428. 
 
 POWER OF ATTORNEY— (See Attorney, Power of. 
 
 POWER OF SALE— 
 In executor — 
 
 Where a charge of debts, &c., 64, 65, 125, 126. 
 And, now, under the Land Transfer Act, 1897... 95, 96, 
 126, S51. 
 In the case of mortgages — 
 
 (a) Where mortgage is by executors, 126, 127. 
 (6) In ordinary mortgages — 
 
 (1) By Court, in action, 285. 
 
 (2) Under express power in mortgage deed, 285, 
 
 286. 
 
 (3) Under Conveyancing Act, 1881... 286. 
 Not exerci-eab'e, after foreclosure absolute, 285. 
 Exerciseable, after tit'.e by adverse possession, 286. 
 
 In equitable mortgage by deposit, 295. 
 
 In case of pledges and mortgages of personalty, 300, 301. 
 
 In case of bill of sale, 307. 
 
 POWERS— 
 
 Election in case of, 171, 172. 
 
 Defective execution of, when ;aided, 391. 
 
 Release of, 431. 
 
 Illusory appointments, doctrine of, 433. 
 
 POWERS, DISCRETIONARY— 
 Control of exercise of, 103, 104. 
 
 POWERS IN NATURE OF TRUSTS— 
 What are, and what are not, 60, 61. 
 Court compels their execution, 61. 
 
 POWERS, RELEASE OP— 
 
 (1) In case of special power of appointment, 431. 
 
 (2) None, where power is coupled with a duty, 432. 
 
 POWERS, STATUTORY— 
 
 Exercise of, lawful and unlawful, 517. 
 Exercise of, vexatious, 617. 
 Exercise of, colourable, 517. 
 
 PRECATORY WORDS— 
 
 No trust, if there is a discretion, 58, 59. 
 
 PRE-EMPTION— 
 
 Right of, in mortgagee, 239. 
 
 PREFERENCE— 
 Of creditors, 194. 
 
 How prevented, 194. 
 
 PREFERENTIAL PAYMENTS— 
 In bankruptcy, 204. 
 In insolvent administrations, 204. 
 In winding up, 202. 
 
 Even against debenture holders, 275. 
 
INDEX. 607 
 
 PRESUMPTION— 
 
 Of advancement, 79, 80, 81. 
 Of satisfaction, 184 et seq. 
 
 " PEETENCED TITLE "— 
 Buying of, 56. 
 
 PRICE— 
 
 Fixing of, on a sale, 394, 494. 
 Abatement of, for deficiency, 489, 502. 
 
 PRINCIPAL AND INTEREST— 
 
 In case of mortgage debts, 241, 242, 250, 251. 
 
 PRIOR CONTRACT— 
 
 Notice of, effect of, 262, 263. 
 
 When defence to specific performance, 493, 494. 
 
 PRIOR TITLE— 
 
 Notice of, effect of, 262. 
 
 PRIORITY— 
 Of title— 
 
 (1) According to time, 10, 262 et seq. 
 
 (2) According to registration — 
 
 In the case of lands, 278. 
 
 In the ease of ships, 309, 310. 
 Of debts in administration of assets, 193 et seq. 
 Of liability of assets inter se, 212. 
 
 PROBATE— 
 
 In common form, 549, 550. 
 In solemn form, 550. 
 As proof of devise, 550. 
 
 PROFIT COSTS— 
 
 Of solicitor-trustee, 107. 
 Of solicitor-mortgagee, 107. 
 
 PROFITS OR DAMAGES— 
 
 Election between, in patent actions, 461. 
 
 PROHIBITION— 
 
 Penalty imports, 319, 320. 
 
 PROMOTERS— 
 
 Are trustees, 109. 
 
 Liability of, for frauds, 413, 414. 
 
 PROOF OF TITLE— 
 In partition, 534. 
 In case of devise, 550. 
 
 PROSPECTUS— 
 
 Fraud in, by statute, 413, 414. 
 
 " PROTECTED TRANSACTIONS "— 
 In bankruptcy, 42. 
 
 PROTECTION ORDER— 
 
 Separate estate under, 343, 344. 
 
608 
 
 INDEX. 
 
 PUBLIC BODY— 
 
 Injunction against, 622, 523. 
 
 Discretion of Court as to, 523. 
 Powers of, vexatious use of, 517. 
 
 PUBLIC COMPANY— 
 
 Borrowing powers of, 236, 237. 
 Undertaking of, mortgage of, 237. 
 
 PUBLIC TRUSTEE— 
 
 Appointment of, and varieties of, 140, 141. 
 Position of, and powers of, 141. 
 Cannot be admitted to copyholds, 142. . 
 
 PURCHASE— 
 
 Completion of, deeds outstanding, 505, 506. 
 
 PURCHASE-DEED— 
 
 Production of, by solicitor of vendor, 65. 
 Receipt for purchase-money in or on, 65, 66. 
 
 PURCHASE-MONEY— 
 
 Liability of purchaser formerly to see to application of, 62. 
 
 Seous, now, 63. 
 Payment of, not a, part-performance, 482. 
 Lien for, 87 et seq. 
 
 Where part left on mortgage, by selling mortgagee, 288. 
 Abatement of, for deficiency, 489, 502. 
 
 PURCHASE BY MORTGAGEE— 
 Under exercise of power of sale — 
 None, by selling mortgagee, 287. 
 By second mortgagee from first, 261, 287. 
 By mortgagor, 287. 
 
 PURCHASER— 
 
 Liability of, to see to application of purcbaae-mouey, 62 
 
 et seq. 
 Trustee cannot in general be, from cestui que trust, 109, 110. 
 Mortgagee selling may not himself become, 287. 
 
 Second mortgagee may, 261, 287. 
 
 Mortgagor may, 287. 
 Defective execution of power, aided in favour of, 391. 
 No relief against, in case of accident, 394, 395. 
 
 In case of mistake, 401. 
 
 PURCHASE FOR VALUE— 
 
 Defence of, effect of, formerly and now, 11 et seq., 543. 
 
 PURCHASE, RELIEF FROM— 
 
 Where the property is already the purchaser's own, 399. 
 Where the property is already spent, 399. 
 Or non-existent, 399. 
 
 QUEEN ANNE'S BOUNTY— 
 
 Charges of benefices in favour of, 236. 
 
 QUIA TIMET— 
 
 Purposes for which available, 546. 
 
INDEX. -609 
 
 QtXI PRIOR EST TEMPORE, POTIOR EST JURE— 
 Application of this maxim and its limits, 10, 262, 263. 
 
 SATE OF INTEREST— 
 
 In case of breach of trust, 134. 
 
 On legacies, 151, 152. 
 
 On mortgages, 261. 
 
 In case of equitable mortgages, 296. 
 
 On equitable charges, generally, 296. 
 
 RATES— 
 
 Priority of, in administration, 193, 204. 
 And in bankruptcy, &c., 204. 
 
 Even as against debentures, 275. 
 As against bills of sale, 307. 
 
 REAL REPRESENTATIVE— 
 
 Under Land Transfer Act, 1897... 95, 96, 126, 551. 
 
 REAL ESTATE— 
 
 Of 'wife, husband's rights in, 327, 359. 
 
 Of ■wife, mortgage of, by husband and wife, 292, 293. 
 
 Mortgage of, by executor, 125. 
 
 Specific performance relative to, 479 et seq. 
 
 RECEIVER— 
 
 Generally, 311. 
 
 Equitable execution, by appointment of, 6, 202. 
 
 Effect of appointment of, in administration action, 194. 
 
 Effect of appointment of, for judgment creditor, 202. 
 
 Right of mortgagee to appoint, 255, 256. 
 
 Indemnity of, 128, 255. 
 
 On dissolution of partnership, 453. 
 
 In aid of injunction, 511. 
 
 Appointed quia timet, 646. 
 
 RECEIVER AND MANAGER— 
 
 When entitled (like an executor) to indemnity, 128, 255. 
 When appointed on behalf of mortgagee, 255. 
 In debenture-holders' action, 283. 
 On dissolution of a partnership, 453. 
 
 RECEIVERSHIP ORDER— 
 Equitable relief by, 6, 202. 
 Against lands, effect of, 202. 
 Against personal estate, effect of, 202. 
 
 RECONVERSION— 
 
 (1) By act of parties, 168. 
 
 (2) By operation of law, 168. 
 
 Money at home and no declaration regarding it, 168. 
 No reconversion, if any outstanding interest, 169. 
 Under provisions of Partition Act, 164. 
 Under provisions of Lands Clauses Act, 164. 
 When no equity for a, generally, 169. 
 
 RECONVEYANCE- 
 
 On redemption, of mortgaged premises, 292. 
 
 Where mortgage is of wife's estate, 292, 293. 
 
 S. K R 
 
610 INDEX. 
 
 BECTIFICATION OF DEED— 
 
 On ground of mutual mistake, 401 . 
 In lieu of rescission, 401. 
 In case of marriage settlements, 402. 
 In case of disentailing deeds, 404, 405. 
 
 REDEEM, EIGHT TO— 
 Legal, 238. 
 Equitable, 238. 
 Who is entitled to, 241. 
 
 REDEEM UP, FORECLOSE DOWN— 
 Meaning of this rule, 242. 
 
 REDEEM THE WHOLE, 281. 
 
 REDEMPTION— 
 
 Price of, and additions to, 241, 242. 
 
 REDEMPTION, RIGHT OF— 
 
 (1) Legal, 238, 300. 
 
 (2) Equitable, 238, 295, 300. 
 
 REDUCTION INTO POSSESSION— 
 
 A duty of trustee, for security of trust funds, 118. 
 Of wife's chose, by husband, 327, 328, 359. 
 
 RE-ENTRY— 
 
 For non-payment of rent, 322, 324. 
 
 For breach of covenant to repair, 323, 324. 
 
 Relief against, 324, 325. 
 
 REFUNDING ASSETS— 
 Generally, 211, 217. 
 Paid legatees not, in general, liable, 211, 212. 
 
 REGISTERED ASSURANCE— 
 Prevails, in general, 263. 
 
 REGISTRATION— 
 
 Of lands in Middlesex Registry, 263, 296. 
 
 Of lands in Yorkshire Registries, 263, 296. 
 
 Of vendor's lien, in Yorkshire, 296. 
 
 Of equitable mortgage in Yorkshire, 296. 
 
 Of bills of sale, 306. 
 
 Of copyrights, 527. 
 
 Of ships, 309, 310. 
 
 Of contracts (Companies Act), 413, 414. 
 
 Of debentures, 305, 413. 
 
 Of deeds of arrangement with creditors, 45. 
 
 REIMBURSEMENT— 
 Of trustees, 116, 117. 
 Clause for, 117. 
 Out of residue, usually, 117. 
 May be out of specific fund, 117. 
 May be out of income even, 117. 
 
INDEX. 611 
 
 RELEASE— 
 
 Of equity to a settlement, 364, 365. 
 
 Of power, 431. 
 
 Of right of action for fraud, 304, 409. 
 
 Of principal debtor, 441, 442. 
 
 Of trustee, 137, 140. 
 
 Of surety, 442. 
 
 Of co-surety, 443. 
 
 REMAINDERMAN— 
 
 Adjustment of rights between, and tenant for life, 123, 225, 
 
 226. 
 Not entitled to partition, 534, 535. 
 
 REMOVAL— 
 
 Of guardians, 376, 377. 
 Of trustees, 140. 
 
 REMUNERATION— 
 
 Trustee may stipulate for, 108. 
 
 Solicitor-trustee, 107, 108. 
 
 Solicitor-mortgagee, 107. 
 
 Solicitor being neither a trustee nor a mortgagee, 423, 424. 
 
 RENEWAL OF LEASE— 
 
 Lien for expenses of, 94, 317. 
 
 RENT— 
 
 In arrear, proof for, 204, 205. 
 
 Distress for, 204. 
 Payment of, to mortgagee, 249, 250. 
 Interpleader in respect of, 539, 640. 
 Continuing liability for, in case of fire, 393. 
 
 RE-OPENING— 
 
 The biddings, 210. 
 The foreclosure, 291. 
 
 REPAIR, COVENANT TO— 
 Relief against breach of, 323. 
 No relief from, in case of accident, 393. 
 
 REPUDIATION OF CONTRACT— 
 
 On ground of fraud, generally, 304, 409. 
 
 When it becomes impossible, 408. 
 
 By infant, must be within reasonable time, 417, 418. 
 
 RE-PURCHASE— 
 
 Right of, in mortgagor, 239. 
 
 REQUISITIONS ON TITLE— 
 Withdrawal of, 606, 607. 
 Decision of Court upon, 508, 509. 
 
 RESCISSION- 
 
 Of contract of sale — 
 
 By vendor, 607. 
 
 By purchaser, 506. 
 On ground of mistake, 401 . 
 On ground of fraud, 304, 409. 
 In lieu of rectification, 401, 402. 
 Damages, recovery of, without, 409. 
 Secret profits, recovery of, without, 409. 
 Becoming impossible, effect of, 412. 
 R R 2 
 
61-2 INDEX. 
 
 RESCISSION' CLAUSE— 
 
 Relation of, to compen-ation elaniie, 507. 508. 
 
 RESIDU.\EY EST.iTE— 
 Katnre of title to, 53. 
 Assignee of, 53. 
 Debts, payment of, out of, 53, 212, 230, 231. 
 
 EESTEAIXT OX AXTICIPATIOIf— 
 Origin of, 337. 
 Xecessity for, 337, 338. 
 
 Words su£5cierit to, create, or not sufficient, 339, 340. 
 Operation of, 338, 339. 
 Destruction of, 340. 
 Release of, 341. 
 
 Arrears of separate e.state, when free from, 342. 
 Impounding of separate estate, although subject to, 136, 342. 
 Liability to costs, although subject to, 136, 342. 
 
 RESTRICrr^'E COVEXAXTS— 
 Affecting title to land, 500, 513. 
 
 Are like easements affecting land, 513. 
 Notice of, effect of, before and after completion, 513. 
 Enforced by injunction, 512. 
 Suspension of, and revival of, 513. 
 Discharge of, 513. 
 
 When merely personal to vendor, 514. 
 Release of, by conduct, 513. 
 Expiration of, 514. 
 Attempted fraudulent evasion of, 433. 
 
 RETAIXEE— 
 
 By executor, 219 et seq. 
 
 By administrator, 220, 221. 
 
 In specie, 221. 
 
 Of statute-barred debt, 221 . 
 
 None by heir, 222. 
 
 Distinguished from set-off, 468. 
 
 RETAINER BY EXECUTOR— 
 Eight of, and limits to, 219, 220. 
 When compulsory, 222. 
 By married woman executrix, 220. 
 In respect of damages even, 222. 
 
 None, against legatee in respect of a mere liabilitij, 468. 
 None, in bankruptcy administration, 221. 
 Distinguished from set-off, 468. 
 
 REVERSIONARY LAND- 
 
 Legacy charged upon, 196, 243. 
 
 EEVERSIOXARY LEASEHOLDS— 
 Conversion of, 123. 
 Husband's title to wife's, 327, 360, 361. 
 
 REVEESIONAEY PERSONAL ESTATE— 
 Mortgage of — 
 
 When reversion falls in before sale, 302. 
 Of wife, assignment of, 365, 366. 
 
 Under Malius's Act, 364. 
 
 Bar of time in respect of, 249. 
 
INDEX. 613 
 
 REVERSIONER— 
 
 Laches on the Jiart of, 15, 519. 
 
 May redeem mortgage, 241. 
 
 Frauds upon, 426. 
 
 Not entitled to partition, 534, 535. i 
 
 RIGHT OF PROOF— 
 
 Of wife, against husband's estate, 350, 351. 
 
 Of surety, where debtor is bankrupt, 445, 446. 
 
 Of partner, against partnership estate, 454. 
 
 RIVAL BUSINESS, 449. 
 
 ROMAN CATHOLIC CHARITIES, 77. 
 
 SAILORS, COMMON— 
 Frauds upon, 426. 
 
 SALARIES— 
 
 Assignment of, 55. 
 Mortgage of, 236. 
 Priority of, in insolvent administration, 204. 
 
 SALE, POWER OF— /See Powee of Sale. 
 
 SALVAGE CHARGES, 94. 
 
 SALVAGE PAYMENTS, 94. 
 
 SATISFACTION- 
 
 (1) Of debts by legacies, 184, 185. 
 
 Legacy less than debt, not a satisfaction, 184. 
 Circumstances rebutting the presumption of, 185. 
 
 (2) Of 'legacies by subsequent legacies, 185. 
 
 (3) Of legacy by portion, and of portion by legacy, 187 et seq. 
 
 Rule does not apply to legacies to a stranger, 187, 
 
 Where donor in loco parentis to donee, 188. 
 
 Same principles applicable, whether settlement comes 
 
 before will or will before settlement, 188, 189. 
 But where settlement comes first, persons taking under 
 
 it are purchasers, with right to elect, 189. 
 When pro tanto, 190. 
 Legacy to child (or wife) to whom testator indebted, 190. 
 Advancement by father to child to whom he is indebted, 190. 
 
 To child indebted to father, 190. 
 Extrinsic evidence, admissibility of, 191. 
 
 SAVINGS— 
 
 Of separate estate, generally, 331. 
 Investments of, 331. 
 
 SAVINGS BANK ACT, 1891— 
 
 Priority in payment of debts due from actuary of, 193, 205. 
 
 schedule- 
 To bill of sale, when necessary, 306. 
 
 SCHEME— 
 
 For charity, when and when not directed, 69 . 
 For improvements, 93, 94. 
 General building, 500, 513. 
 
614 INDEX. 
 
 SEA VIEW— ; 
 
 Injunction against interrupting, 433. 
 
 SECRET AGREEMENT— ' 
 
 In, fraud of creditors, 430. 
 In fraud of marriage, 419. 
 In fraud of object of power, 430, 431. 
 
 SECRET PROFITS— 
 Of agent, 425, 426. 
 Of auctioneer, 242. 
 
 SECRET TRUSTS— 
 
 When enforced, and when not, 59, 60. 
 Created subsequently to will, 60. 
 Evidence of, 60. 
 
 SECURED CREDITOR— 
 
 Who is, and who is not, 201, 202. 
 
 Eight of proof by, in Bankruptcy and in Chancery, 201. 
 
 Wife, when, on husband's estate, 350, 351. 
 
 SEPARATE ESTATE— 
 
 Origin of the jurisdiction in equity, 328, 329. 
 Creation of, modes of, 329. 
 Words creating, 330. 
 
 What words insufficient, 330. 
 Wife's power of disposition over, 330. 
 The savings of income of separate estate are, 331. 
 
 Also, the investments of such savings, 331, 332. 
 Wife may permit husband to receive, 332. 
 
 Or may make an absolute gift of, to husband, 332. 
 
 Also, husband takes what is undisposed of at wife's death, 
 332, 333. 
 Wife could not originally contract debts in equity, 333. 
 Her separate estate, latterly, was bound — 
 
 By instrument under seal, 333. 
 
 By bill of exchange or promissory note, 333, 334. 
 
 By written agreement, 334. 
 
 And, now, on merely verbal engagements, 334. 
 No personal decree against wife, 335. 
 Wife cannot be made bankrupt, 335, 336. 
 
 Unless in trade, 335. 
 Wife cannot be committed, 336. 
 Administration of, 337. 
 
 SEPARATE ESTATE, STATUTORY— 
 Varieties of — 
 
 (1) Under Divorce Act, 343. 
 
 (a) Upon judicial separation, 343. 
 
 (b) On divorce or decree of nullity, 343. 
 
 (2) Under Matrimonial Causes Act, 1878... 344. 
 
 (3) Under Maintenance in Case of Desertion Act, 1886... 
 
 344. 
 
 (4) Under Summary Jurisdiction (Married Women) Act, 
 
 1895... 344, 345. 
 
 (5) Under Married Women's Property Act, 1870... 346. 
 
 (6) Under Married Women's Property Acts, 1882, 1893. . . 
 
 347 et seg. 
 
INDEX. 615 
 
 SEPARATION DEED— 
 
 Liability of covenantor in, 133. 
 Effect of resumption of cohabitation on, 329. 
 Savings of income under, 331. 
 Enforcement of, 474. 
 
 Being neither illegal nor immoral, 474. 
 Condition of marriage remains, notwithstanding, 313. 
 
 SEEVICE, CONTRACTS OP— 
 Restraints in, 420. 
 Injunctions to enforce, 475, 516, 623. 
 
 SET-OEE— 
 
 At law, 465. 
 
 In equity, 465 et seq. , 
 
 Of costs against costs, generally, 466. 
 Of damages against damages, 466. 
 Of joint debt against several debt, 467. 
 None, in general, of debts against calls, 466. 
 None, in general, of debts accrued in different rights, 467. 
 None, in general, of debts intrinsically different, -468. 
 Distinguished from retainer, 220, 468. 
 And from tacking, 303. 
 
 SETTLED LAND ACT, 1882— 
 
 Regarding receipts by trustee, 63. 
 Regarding trusteeship of tenant for life, 92. 
 Regarding improvements by tenant for life, 93. 
 Regarding investments of capital moneys, 93, 120. 
 Regarding exercise of powers of tenant for life, 94. 
 
 SETTLED LEGACY— 
 Interest on, 151. 
 Forfeiture of, 155, 166. 
 
 SETTLED LEGACY OF RESIDUE— 
 Interest on, 162. 
 
 SETTLED RESIDUE— 
 Interest on, 162. 
 
 SETTLEMENT— 
 
 I. Apart from consideration of marriage — 
 
 (a) Voluntary, 31, 33. 
 
 (6) Colourably valuable, 37. 
 
 II. In consideration of marriage — 
 
 (a) Where the marriage is to follow, 36. 
 
 Who are within the scope of the marriage con- 
 sideration, 37, 38. 
 (S) Where the marriage is already over, 36. 
 
 Where settlement is in pursuance of ante-nuptial 
 
 articles, 38. 
 Or where slight value in money is added, 36. 
 
 III. On wife and children — 
 
 Under equity to settlement, 359 et seq. 
 
 IV. In case of infants (male and female) — 
 
 (a) Under Marriage Act, 1824... 378. 
 
 lb) Under Infants' Settlement Act, 1855... 378. 
 
616 INDEX, 
 
 SETTLEMENT, EQUITY TO— /See Equity to Settlement. 
 
 SHARES— 
 
 Lien of company on, 318. 
 
 Issue of, at a discount, 414. 
 
 Issue of, at a premium, 414. 
 
 Purchase of, by company itself, 414. 
 
 Contracts regarding, specific performance of, 478. 
 
 SHIPS— 
 
 Ownership of, 79, 309. 
 Mortgages of, 309. 
 Equitable interests in, 309, 310. 
 Liens on, 311. 
 
 SILENCE— 
 
 When it amounts to affirmation, 409, 410. 
 
 SLANDER— 
 
 Injunction to stop, 524. 
 
 SOLICITOR— 
 
 When trustee, not allowed profit costs, 107. 
 
 When mortgagee, allowed profit costs, 107. 
 
 Costs of, when regulated by statute, 107, 108, 423, 424. 
 
 Discharging himself, position of, 315. 
 
 Liability of, for negligence, 279. 
 
 Notice to, when notice to client, 270, 272. 
 
 Professional remuneration of — 
 
 (1) Being a trustee, 107, 423. 
 
 (2) Being a mortgagee, 107, 423. 
 
 (3) Being neither trustee nor mortgagee, 423, 424. 
 Agreement to pay gross sum, for past business, is valid, 423, 
 
 424. 
 
 Waits for his remuneration, in general, till business com- 
 pleted, 424, 425. 
 
 Lien of — iSee Solioitob's Lien. 
 
 SOLICITOR'S LIEN— 
 
 (1) On deeds and papers of client, 312. 
 
 (2) On fund recovered, 312. 
 
 (fl) At the common law, 312. 
 
 lb) By statute, 312, 313. 
 
 Extends, in general, to entire fund, 313, 314. 
 (2a) On costs recovered, 313. 
 In case of town agent, 314. 
 How far it prevents a set-off, 315. 
 How affected by compromise of action, 315, 316. 
 Executor of solicitor, entitled to, 313. 
 Assign of solicitor, entitled to, 313. 
 Bar of time, as against, senible, no, 314, 315. 
 
 SPECIE, ENJOYMENT IN, 123. 
 
 SPECIE, RETAINER IN, 221. 
 
 SPECIFIC LEGACY— 
 Characteristics of, 148. 
 Assent of executor to, 147. 
 Interest on, 151, 152. 
 
INDEX. 617 
 
 SPECIFIC PERFORMANCE— 
 True sense of the phrase, 479. 
 Cases in which equity will not decree, 474. 
 
 (1) lUegal or unmoral contracts, 474. 
 
 (2) Agreements without consideration, 475. 
 (2a) Revocable contracts, 475. 
 
 (3) Contracts impossible to enforce, 475. 
 
 (4) Agreements for a reference, 476. 
 
 (5) Contracts for the loan of money, 476. 
 
 Exceptional case, 476. 
 
 (6) Contracts wanting in mutuality, 477. 
 
 (7) Contracts not in writing, when writing required, 477. 
 
 (8) Contracts by donees of powers, 477. 
 Contracts concerning lands enforced, in general, 479. 
 Contracts as to personalty, not enforced, in general, 478. 
 
 (1) Personal chattels of which contracts enforced, 478. 
 
 («) Railway shares, 478. 
 
 (6) Assigned debts under bankruptcy, 478. 
 
 (c) Articles of vcrfti, 478. 
 
 {d) Heirlooms, pictures, &c., 478. 
 
 (e) Trust stocks, and trust-chattels, 478, 479. 
 
 (2) Lands, contracts enforced, 479. 
 
 Scil., as against the contracting party, 19, 479. 
 Ascertainment of contract, 480. 
 Want of writing supplied, 481. 
 
 Where unconscientious to rely on it, 481. 
 
 Where contract is partly performed, 482. 
 
 (3) Representations, when enforced, 484. 
 
 Representations on marriage, 484. 
 Actions for, parties to, &c., 484. 
 
 Where vendor or purchaser is bankrupt, 485. 
 Defences to action for — 
 
 (1) Misrepresentation having reference to contract, 485. 
 
 (2) Mistake, 486. 
 
 (1) Where mistake is mutual, 486. 
 
 (2) Where mistake is unilateral, 487. 
 
 (3) Where a want of definiteness, 487. 
 (3a) Where error in contract, 487, 488. 
 
 (o) In reducing contract into writing, 487. 
 (6) Where an original misunderstanding, 
 
 488. 
 (c) Where subsequent parol variation, 488. 
 
 (3) Misdescription, 488. 
 
 Purchaser not compelled to take freehold for copy- 
 hold, 488. 
 Or an under-lease for an original lease, 488. 
 Or building land which is not building laud, 
 
 488. 
 Or agricultural land which has no right of 
 cartway to it, 489. 
 Where difference is slight and a proper subject 
 for compensation, contract enforced with 
 compensation, 489. 
 No compensation where fraud, 490. 
 
 Nor where compensation cannot be esti- 
 mated, 490. 
 
 (4) Lapse of time, 491. 
 (6) General trickiness, 491. 
 
618 INDEX. 
 
 SPECIFIC PERFOEMANCE— co«^m««(«. 
 Defences to action for — continued. 
 
 (6) Great hardship, 492. 
 
 (7) Breach of trust (or of prior contract), 493, 494. 
 
 (8) No contract, 494. 
 
 (9) Want of title, 496. 
 (9a) Title defeasible, 489. 
 
 Restrictive covenants, effect of, 500. 
 Street improvements, liability for, 501. 
 Conditions excluding compensation, 502. 
 Conveyance, when to be settled by the Court, 502. 
 Possession, when usually given, 503. 
 
 Effect of taking, 503. 
 Repudiation of contract, by purchaser, 506. 
 Rescission of contract, by vendor, 507. 
 
 STATUTE-BARRED DEBTS— 
 
 Acknowledgment to revive, 197, 198. 
 Admission to revive, 197. 
 Payment of, by executors, 196. 
 Even after judgment, 197. 
 Retainer of, 220. 
 Set-off, in case of, 468. 
 Appropriation of payment to, 470. 
 
 STATUTES- 
 IS Edw. I. stat. 1, c. 24 (Writ in consimili oasu), 2. 
 17 Edw. II. u. 9 (Idiots), 381. 
 
 c. 10 (Lunatics), 381. 
 23 Hen. VIII. u. 10 (Superstitious uses), 77. 
 27 Hen. VIII. c. 10 (Uses), 21, 22. 
 
 31 Hen. VIII. c. 1 (Partition), 534. 
 
 32 Hen. VIII. c. 9 (Pretenced titles), 56. 
 
 c. 32 (Partition), 534. 
 
 1 Edw. VI. 0. 14 (Superstitious uses), 77. 
 13 Bliz. c. 5 (Fraudu ent conveyances), 31. 
 
 c. 20 (Benefices), 235. 
 27 Eliz. c. 4 (Voluntary conveyances), 33, 73, 266. 
 43 Eliz. 0. 4 (Charities), 67. 
 21 Jac. I. c. 16 (Limitations), 196, 197, 463. 
 12 Car. II. c. 24 (Testamentary guardian), 373. 
 29 Car. II. v. 3 (Frauds)— 
 
 s. 4 (Agreements in writing), 36, 435. 
 
 ss. 7, 8, 9 (Trusts), 22, 36. 
 
 s. 17 (Contracts), 481. 
 
 B. 25 (Husband, administrator), -332, 333. 
 
 3 Will, k Mary, c. 14 (Fraudulent devises), 198. 
 
 4 & 5 Will. & Mary, c. 20 (Debts), 199. 
 
 3 & 4 Anne, c. 16 (Account), 461. 
 
 4 Anne, c. 17 (Set-off), 465. 
 
 4 & 5 Anne, c. 16 (Procedure) — 
 
 s. 12 (Penal bonds), 319. 
 
 2 Geo. II. c. 22 (Set-off), 465. 
 8 Geo. II. c. 24 (Set-off), 465. 
 
 47 Geo. III. c. 74 (Simple contract debts), 195. 
 55 Geo. III. 0. 192 (Preston's Act, 1815), 27. 
 4 Geo. IV. c. 76 (Marriage of Infants), 378. 
 11 Geo. IV. & 1 Will. IV. u. 47 (Debts), 195, 198. 
 
INDEX. 619 
 
 STATUTES— co««»«e<f. 
 
 1 Will. IV. c. 40 (Undispo3ed-of residue), 85. 
 
 c. 46 (Illusory appointments), 433. 
 1 & 2 Will. IV. u. 68 (Interpleader), 540. 
 
 3 & 4 Will. IV. c. 27 (Limitations), 227, 233, 244, 247, 249. 
 
 0. 42 (Limitations), 196, 197. 
 
 c. 74 (Fines and resoveries), 363, 405. 
 
 c. 104 (Debts), 195, 227, 233. 
 
 0. 105 (Dower;, 162, 176. 
 
 c. 106 (Descents), 218. 
 
 7 Will. IV. & 1 Viet. c. 28 (Limitations), 247. 
 1 Vict: c. 26 (WiUs Act), 162, 349. 
 
 1 & 2 Vict. c. 110 (Judgments), 199, 551. 
 
 2 & 3 Vict. c. 11 (Judgments), 199. 
 
 4 & 5 Vict. c. 35 (Copyholds), 535. 
 
 5 & 6 Vict. c. 69 (Perpetuation of testimony), 544. 
 
 8 Vict. c. 18 (Lands Clauses), 164, 288, 289. 
 8 & 9 Viet. c. 106 (Real Property), 47. 
 
 13 & 14 Viof. ,0. 60 (Trustee Act, 1850), 138. 
 
 14 & 15 Vict. c. 83 (Lords Justices), 382. 
 
 15 & 16-Vict. c. 55 (Trustees), 138. 
 
 c. 76 (Common Law Procedure Act, 1852), 323, 
 
 449. 
 c. 86 (Chancery Jurisdiction Act, 1852), 3, 285. 
 
 16 & 17 Vict. c. 70 (Lunacy), 382. 
 
 17 & 18 Vict. c. 113 (Locke King's Act), 214. 
 
 c. 125 (Common Law Procedure Act, 1854), 
 449. 
 
 18 & 19 Vict. c. 43 (Infants' settlements), 378. 
 
 19 & 20 Vict. c. 97, s. 5 (Sureties), 438. 
 
 s. 9 (Merchants' accounts), 463. 
 s. 14 (Co-Debtors), 446. 
 
 20 & 21 Vict. c. 57 (Malins's Act), 178, 364. 
 
 c. 77 (Court of Probate), 550. 
 
 c. 85, s. 21 (Protection order), 343. 
 
 s. 25 (Judicial separation), 343. 
 
 21 & 22 Vict. c. 27 (Cairns's Act), 533. 
 
 c. 93 (Legitimacy declaration), 545. 
 e. 108 (Protection order), 343. 
 
 22 & 23 Vict. c. 35 (Lord St. Leonards' Act)— 
 
 ss. 15, 16 (Sales by executors), 63. 
 
 s. 23 (Trustee's re^ipts), 62, 63. 
 
 o. 29 (Advertisements for creditors), 211. 
 
 o. 32 (Investments), 120. 
 
 23 & 24 Vict. u. 38— 
 
 o. 1 (Judgments), 200. 
 s. 3 (Judgments), 200. 
 s. 13 (Next of kin), 224. 
 c. 126 (Common Law Procedure Act, 1860), 
 
 323. 
 c. 127, s. 28 (Solicitor's lien), 312. 
 0. 134 (Charities, Eoman Catholic), 77. 
 c. 145 (Lord Cranworth's Act) — 
 
 ss. 15, 16 (Sales \>j mortgagees)) 288. 
 
 s. 25 (Investments), 120. 
 
 s. 29 (Trustee's receipts), 62. 
 
 24 & 25 Vict. c. 100 (Married Women), 344. 
 
62Q 
 
 INDEX. 
 
 STATVTES—oontinued . 
 
 25 & 26 Vict. c. 63 (Merchant ships), 310. 
 
 c. 89 (Companies), 413. 
 27. & 28 Vict. 0. 112 (Judgments), 200. 
 
 c. 114 (Improvement of land), 93. 
 
 30 & 31 Vict. c. 48 (Puffer at auction), 429. 
 
 c. 69 (Real estate charges), 215, 216. 
 
 c. 131 (Companies), 413. 
 
 c. 144 (Assignment of life policies), 47, 51. 
 
 31 & 32 Vict. u. 40 (Partition), 164, 535. 
 
 u. 86 (Assignment of marine policies), 46. 
 
 32 & 33 Vict. c. 46 (Specialty debts), 192, 193, 220. 
 
 0. 62 (Debtors Act), 336, 551, 552. 
 c. 71 (Bankruptcy Act), 39. 
 
 33 & 34 Vict. c. 14 (Naturalisation), 84, 97. 
 
 c. 23 (Felons' Estates), 225. 
 
 c. 28 (Soliiiitor's remuneration), 424. 
 
 c. 35 (Apportionment), 154. 
 
 c. 76 (Absconding debtors), 552. 
 
 c. 93 (Married Women's Property), 346. 
 
 34 & 35 Vict. c. 43 (Dilapidations), 193. 
 
 c. 44 (incumbent's resignation), 235. 
 
 36 & 37 Vict. c. 66 (Judicature Act, 1873)— See Judica- 
 
 TDBB Act, 1873. 
 
 37 & 38 Vict. u. 37 (Powers Amendment Act, 1874), 433. 
 
 u. 50 (Married Women's Property), 347. 
 
 c. 57 (Real Property Limitations), 196, 197, 
 
 247, 248. 
 c. 62 (Infants' relief), 417, 418. 
 c. 78 (Vendors and purchasers), 508, 509. 
 
 38 & 39 Vict. -c. 55 (Local Boards), 522, 523. 
 
 c. 77 (Judicature Act, 1875) — See JUDICA- 
 TUEE Act, 1875. 
 
 39 & 40 Vict. c. 17 (Partition), 536. 
 
 40 & 41 Vict. c. 34 (Locke King's Further Amendment Act), 
 
 215, 216. 
 
 41 Vict. c. 19 (Protection order), 344. 
 
 41 & 42 Vict. c. 31 (Bills of Sale Act, 1878), 38, 305. 
 
 44 & 45 Vict. c. 41 (Conveyancing Act, 1881) — See Con- 
 
 veyancing Act, 1881. 
 c. 44 (Solicitor's remuneration), 424. 
 
 45 & 46 Vict. c. 38 (Settled Land Act, 1882), 63, 92, 93, 
 
 120. 
 c. 39 (Conveyancing Act, 1882), 139, 244, 272. 
 c. 43 (Bills of sale), 38, 305. 
 c. 61 (Bills and notes), 391. 
 c. 75 (Married Women's Property) — S'ee Mab- 
 
 EiED Women's Pbopeety Act, 1882. 
 
 46 & 47 Vict. c. 52 (Bankruptcy Act, 1883)— See Bank- 
 
 EnPTOY Act, 1883. 
 u. 57 (Patents, designs, and trade-marks), 
 524, 531. 
 
 47 & 48 Vict. c. 14 (Married women), 353. 
 
 c. 54 (Yorkshire registries), 90, 264, 278. 
 
 c. 61 (Interpleader), 541. 
 
 0. 68 (Matrimonial causes), 342. 
 
 c. 71 (Intestates' estates), 84, 162. 
 
INDEX. 621 
 
 STATVTBS— continued. 
 
 48 & 49 Vict. c. 4 (Yorkshire registries), 90, 264. 
 
 c. 26 (Yorkshire registries), 90, 264. 
 
 49 & 50 Vict. 0. 27 (Guardians of infants), 373 et seq. 
 
 0. 52 (Maintenance on desertion), 344. 
 
 50 & 51 Vict. c. 57 (Arrangements with creditors), 45. 
 61 & 52 Vict. c. 20 (Church lands), 235, 236. 
 
 c. 42 (Mortmain Act, 1888), 67. 
 c. 51 (Land cLarges), 45, 200. 
 c. 59 (Trustee Act, 1888)— /See Tbustee Act, 
 1888. 
 
 51 & 52 Vict, c. 62 (Debts), 204, 206. 
 
 52 & 53 Vict. c. 32 (Trust inveitments), 119. 
 
 c. 45 (Factors), 303. 
 
 c. 49 (Arbiaation), 449. 
 
 53 Vict. c. 5 (Lunacy), 382 et s :q., 535. 
 
 53 & 54 Vict. c. 39 (Partnership), 271, 448 et seq. 
 
 c. 57 (Tenant-right), 253. 
 
 c. 64 (Prospectuses), 407, 408, 
 
 c. 71 (Bankruptcy;, 207, 
 
 54 Vict. c. 3 (Custody of children), 375. 
 
 54 & 55 Vict. c. 73 (Charities), 77. 
 
 55 & 56 Vict. c. 13 (Conveyancing Act, 1892), 139, 323, 324. 
 
 56 & 57 Vict. c. 5 (Regimental debts), 225. 
 
 0. 21 (Voluntary conveyances), 35, 73, 266. 
 c. 53 (Trustees) — See Tedstee Act, 1893. 
 c. 63 (Married women) — See Maebied Wo- 
 men's Peopeety Act, 1893. 
 c. 71 (Sale of goods) — 
 
 s. 25 (Trade- vendees), 303. 
 
 s. 47 (Sales in bulk), 304. 
 
 s. 52 (Specific delivery up), 478. 
 s. 58 (Puffer), 429. 
 
 57 & 58 Vict, c, 46 (Copyholds), 535. 
 
 e. 47 (Building societies), 256. 
 c. 60 (Merchant shipping), 309. 
 
 58 & 59 Viet. c. 25 (Solicitor-mortgagee's costs), 107. 
 
 c. 39 (Married women's maintenance), 345. 
 c. 40 (Parliamentary libels), 525. 
 
 59 & 60 Vict. c. 8 (Life assurance relief), 140. 
 
 c. 35 (Judicial trustees), 98, 105. 
 c. 51 (Vexatious litigation), 547. 
 
 60 & 61 Vict. c. 19 (Debts), 275. 
 
 c. 65 (Land Transfer) — See Land Tean.sfee 
 Act, 1897. 
 
 62 & 63 Vict. u. 20 (Corporation as trustee), 97. 
 
 u. 46 (Improvement charges), 93. 
 
 63 & 64 Vict. c. 26 (Land charges and judgment debts), 200. 
 
 c. 48 (Companies), 407, 413. 
 0. 51 (Money-Lenders), 57, 427. 
 u. 62 (Colonial stocks), 120. 
 2 Edw. VII. K,. 28 (Drunkenness), 346. 
 
 4 Edw. VII. u. 15 (Children), 375. 
 
 5 Edw. VII. c. 15, s. 8 (Trade Marks), 531, 632, 
 
 o. 68 (Eoyal arms), 532. 
 
 6 Edw. VII. c. 41 (Marine insurance), 48. 
 
 c. 55 (Public trustees), 97, 140, 141. 
 c. 58 (Workmen's Compensation), 206. 
 
622 
 
 INDEX . 
 
 STATUTES— co»«»««e«e. 
 
 7 Edw. VII. u. 12 (Police Court allowance to wife), 55. 
 
 c. 18, s. 1 (Married women trustees), 97, 352. 
 c. 24 (Limited partnerships), 459. 
 c. 28, s. 1 (Joint patentees), 86, 260. 
 
 s. 27 (Innocent infringement), S31. 
 0. 29, s. 33 (Innocent infringement), 531. 
 
 s. 36 (Threats, patents), 524. 
 
 s. 37 (Joint Patentees), 86, 260. 
 e. 47 (Deceased wife's sister), 80, 356. 
 c. 50 (Companies), 106, 407, 414. 
 
 8 Edw. VII. c. 27 (Married women), 81, 354. 
 
 c. 28 (Agricultural land), 93, 226, 253, 320. 
 c. 40 (Old age pensions), 55. 
 o. 67 (Children, Protection of), 375, 
 •c. 69 (Companies) — See Companies Act, 
 1908. 
 
 STOP-ORDEE— 
 
 When necessary to perfect assignment, 49, 52. 
 Effect of obtaining, with notice, 264, 265. 
 
 STOPPAGE IN TRANSITU— 
 
 Effect of mortgage, before right of, is exercised, 304. 
 
 STREET IMPROVEMENTS— 
 
 Charges for, generally, 225, 501. 
 When a charge, 501. 
 
 Redemption of, 501. 
 When only a personal liability, 501. 
 
 SUB-LEASE— 
 
 Gone, on forfeiture of lease, 290. 
 
 Not gone, on surrender of lease, 433, 434. 
 
 SUB-LESSEE— 
 
 Belief of, in ease of breach of covenant, 323, 324. 
 Affected by restrictive covenants, 500, 512, 513. 
 
 SUB-MORTGAGE— 
 Tiy deposit, 295. 
 Notice of, on sale by mortgagee, 298. 
 
 SUB-PLEDGE— 
 
 Of negotiable instruments, 302 . 
 
 Of non-negotiable instruments, 302. 
 
 SUB-PURCHASE— 
 
 From selling mortgagee, 287. 
 
 SUBROGATION— 
 
 Of creditors to executors carrying on testator's business, 126 
 
 et seq. 
 Of person paying premium, 94. 
 Of surety, 438. 
 
 Of insurance office, 438. 
 
 SUPPORT— 
 
 Eight to, for land, 521, 522. 
 Injunction' to maintain, 522. 
 
INDEX. 623 
 
 SUECHARGING AND FALSIFYING— 
 Accounts, 137, 463. 
 
 SUEETY— 
 
 Writing required, when and when not, 435. 
 
 Eights of creditor against surety, generally, 435. 
 
 And as regards the continuance of the suretyship, 436. 
 
 Surety bound, although principal debtor not bound, 436. 
 
 Surety not bound, who executes on faith of others also exe- 
 cuting (who fail to execute), 437. 
 
 Surety can only charge against the principal debtor the actual 
 amount paid, 441. 
 
 Kemedies of, 437 et seq. 
 
 (1) Bill quia timet to compel payment by debtor, 437. 
 
 (2) Judicial declaration of discharge, 437. 
 
 (3) Reimbursement by debtor, 437, 438. 
 
 (4) Delivery up of securities by creditor, 438. 
 
 (5) Contribution against co-surety, 439, 440. 
 Circumstances discharging surety, 442 et seq. 
 
 (1) If creditor varies contract, 442. 
 
 (2) If creditor gives time to debtor, 442. 
 
 Effect, if creditor reserves his rights against surety, 
 443. 
 (2«) Where debt is payable by instalments, and time is 
 given for one instalment only, 442. 
 
 (3) If creditor releases debtor, 441, 442. 
 (3ff) If creditor releases one co-surety, 443. 
 
 (4) If creditor loses securities, 444, 446. 
 Being executor, retainer by, 221. 
 Marshalling of securities, as against, 445. 
 Redemption of securities, as against, 277, 445. 
 Tacking, as against, 277. 
 
 On bankruptcy of principal debtor, proof by, 445, 446. 
 
 SURETY FOR A LESSEE'S RENT— 
 
 (1) Old tenancy, 437. 
 
 (2) New tenancy, 437. 
 
 SURPLUS— 
 
 Under trust for creditors, 44. 
 
 Upon a gift of income to charity, 72. 
 
 On a conversion, 163, 164. 
 
 Of sale proceeds, on sale by mortgagee,'96, 286. 
 
 Where reversion falls in^ before sale by mortgagee, 302. 
 
 SURPLUS SALE. PROCEEDS— 
 On sale by mortgagee, 286. 
 In case of equitable mortgages, 277, 303. 
 In case of mortgages of chattels, 302. 
 Selling mortgagee, a trustee of, 96, 286. 
 Erroneous payment of, effect of, 286, 287. 
 
 SURRENDER— 
 
 Of lease, is subject to prior rights, 433, 434. 
 
 SURVIVAL OF RIGHTS, &c.— 
 Into trustees for time being, 118. 
 
624 INDEX. 
 
 SURVIVORSHIP, WIPE'S RIGHT OF— 
 
 As to ohoses in action, not reduced into possession, 327, 363. 
 
 (1) Accrued before the marriage, 365. 
 
 (2) Accrued during the marriage, 365. 
 As io leaseholds, not alienated, 328. 
 
 Or only alienated in part, 328. 
 
 Or only mortgaged, 328. 
 As to realty of inneritanoe, 362. 
 Defeated by alienation, 364. 
 
 TACKING— 
 
 Principle of, 273. 
 Rules of, 273, 274. 
 
 (1) Third mortgagee without notice, buying in first mort- 
 
 gage, may tack, 273. 
 But must have taken his third mortgage without 
 notice of second, 273. 
 
 (2) Judgment creditor cannot tack, 274. 
 
 First mortgagee, lending further sum on a judg- 
 ment, may tack, 274. 
 (2a) If first mortgage provides for further advances, 
 effect of notice before further advance, 274. 
 As regards " floating securities " of company, 274, 275. 
 In the case of building society's mortgages, 276. 
 Tacking, as against surety, being surety simply, 277. 
 
 Being also a co-mortgagor, 277. 
 When a bond debt or simple contract debt may be tacked, 277. 
 Tacking, non-existent as regards lands in Yorkshire, 278. 
 
 Non-existent as regards registered charges, semble, 278. 
 Tacking, distinguished from consolidation, 279, 280. 
 
 TENANT FOR LIFE— 
 Renewing lease, 91. 
 Lien of, for improvements, 93. 
 
 Duty of, to keep down interest on mortgage, 225, 226 . 
 Right of, to redeem mortgage, 241; 
 A trustee within Settled Land Act, 1882.. .91, 92. 
 Repairs by, 519. 
 Waste by, 518. 
 Partition, at suit of, 534. 
 
 TENANT-RIGHT— 
 
 Payment for, by mortgagee, 253. 
 
 TENDER— 
 
 Of mortgage debt, effect of, 245, 246, 300. 
 
 TESTAMENTARY EXPENSES— 
 Allowance of, generally, 208, 209, 
 Come out of residue, 53, 146. 
 Include estate duty, when, 146. 
 
 But not settlement estate duty, in general, 146. 
 
 TESTIMONY, BILL TO PERPETUATE— 
 
 What interest entitled a plaintiff to file a, 544.. 
 
 A mere expectancy insufficient, formerly, 544. 
 Seciia, now, 544. 
 Under Legitimacy Declaration Act, 1858... 545. 
 
INDEX . 625 
 
 TIME OF THE ESSENCE— 
 
 In the case of sale with right of re-purohase, 239. 
 
 Not in mortgages, 239. 
 
 Nor in pledges, 300, 301. 
 
 Nor in contracts for the sale of land, 491. 
 
 TITLE— 
 
 Root of, 496. 
 Good holding, 499. 
 Marketable, 499. 
 Doubtful, 496. 
 
 TITLE, ACCRUAL OP— 
 
 In case of residue, 53, 230, 231, 270. 
 In ease of mortgages, 237, 248. 
 On exercise of powers, 347. 
 
 TITLE-DEEDS— 
 
 Inquiry for, 265, 297. 
 
 Custody of, not usually given to equitable tenant for life, 99. 
 
 Discovery of, 543. ■ 
 
 Delivery up of, 11, 505. 
 
 Deposit of, by way of mortgage, 313. 
 
 Loss of, by mortgagee, 261. 
 
 Remedy, in case of lost, 390. 
 
 TORT— 
 
 Varieties of, 518. 
 
 (1) Waste, 518. 
 
 (2) Nuisance, &c., 519 et seq. 
 
 (3) Infringement of patent, 525, 526. 
 (3«) Infringement oi copyright, 527, 528. 
 (3b) Infringement of trade-mark, 530, 531. 
 
 TOWN-AGENT— 
 
 Derivative lien of, 314. 
 
 TRADE-MARKS— 
 
 Qualified property in, apart from legislation, 630. 
 Property in, by legislation, 531. 
 Innocent user of, effect of, formerly and now, 531. 
 Single words, when they may be, and when not, 531, 
 Additions tending to deceive the public, 532. 
 
 TRADE UNION— 
 
 Expulsion from, 525. 
 
 No administration of estate of, 225. 
 
 TRADER— 
 
 Goods .of, in bill of sale, 307. 
 
 TRADESMEN— 
 
 Selling goods at extravagant prices, 428. 
 
 TRESPASS— 
 
 Where claim of right, 620. 
 
 TRICKINESS— 
 
 A bar to specific performance, 491. 
 
 s. S S 
 
636 INDEX. 
 
 TRUST— 
 
 Distinguished from use, 21j 22. 
 Constitution of, 24. 
 Declaration of, 28. 
 
 TRUSTEE— 
 
 Who may Ibe, and who unsuitable to be, 97. 
 Equity never wants, 98. 
 
 May even appoint, to discharge duties of executor, 98. 
 
 Soil., where such duties are trustee-duties,'98. 
 Court may appoint judicial trustee, 98. 
 May be compelled to perform any act of duty, 99. 
 
 Or restrained from abuse of legal title, 99. 
 Cannot renounce after acceptance, 100. 
 Cannot delegate office, 100, 101. 
 
 Unless there is a moral necessity for it, 101, 102. 
 Or unless under Trustee Act, 1893. ..100. 
 Care required in any lawful delegation, 101. 
 When trustees may lawfully leave title-deeds with their 
 solicitors, 101. 
 Care and diligence required of, 103. 
 ((?) Duties, 103. 
 lb) Discretions, 104, 105. 
 Limit of value for trust investments, 105. 
 
 Relief from certain breaches, of trust, when trustee has 
 acted reasonably and honestly, 105, 106. 
 No remuneration allowed to, 106. 
 
 Solicitor, allowed in general only costs out of pocket, 107. 
 May stipulate to receive compensation, 108. 
 Must not mate any advantage out of his trust, 108. 
 Trading with trust estate, must account for profits, 109. 
 Exceptional cases in wiich purchases hold good, 110. 
 Constructive, not liable to same extent as express. 111. 
 Protection to, afforded by Trustee Act, 1888... 112. 
 Trustee liable for his co-trustee, practically, 112. 
 Executor not liable for his co-executor, practically, 113. 
 Recoupment and contribution of trustees, 115. 
 Indemnity and reimbursement clauses, 116. 
 Duties of, generally, 118. 
 
 (1) Must get in property, 118. 
 
 (2) Must secure outstanding property, 119. 
 
 (3) Must invest in authorised securities, 119 et seq. 
 
 (4) Must, in general, convert terminable and rever- 
 
 sionary property, 122. 
 
 (5) Must, in general, distinguish between capital and 
 
 income, 124. 
 
 Retainer by, 220. 
 
 Appropriation of payments by, 471. 
 
 Sales by, 62 et seq. 
 
 Mortgages by, 125. 
 
 Carrying on business of testator, 126 et seq. 
 
 Survival of rights, powers, &c., 118. 
 
 Remedies of cestui que trust against, for breach of trust, 130 
 
 Interest payable by, on breach of trust, 134. 
 Acquiescence .by oestuis que trustent, effect of, 135. 
 Concurrence -or oestuis que trustent, effect of, 135, 136. 
 Release of, 136. 
 
INDEX. 627 
 
 'rnVSTEB— continued. 
 
 Settlement of accounts of, 137. 
 Release of, under Trustee Act, 1893 — 
 
 (1) On appointment of new trustees, 137, 138. 
 
 (2) On payment of trust fund into Court, 140. 
 Removal of, generally, 139. 
 
 TRUSTEE ACT, 1850.. .138, 140. 
 
 TRUSTEE ACTS, 1850 and 1852— 
 Release of trustees under, 138, 140. 
 Partition under, 535. 
 
 TRUSTEE ACT, 1888— 
 
 s. 2 (Receipt clauses), 65. 
 
 s. 8 (Lapse of time), 74, 112, 135. 
 
 TRUSTEE ACT, 1893— 
 
 s. 1 (Range of investments), 119. 
 B. 5 (Leaseholds, &c. as investments), 122. 
 s. 8 (Valuer's report for investment), 102. 
 o. 9 (Two-thirds limit of value), 105. 
 s. 10 (Appointment of new trustees), 139. 
 s. 11 (Retirement of trustee), 139. 
 
 0. 12 (Vesting of property on appointment), 139. 
 s. 13 (Contributory sale), 104. 
 
 8. 14 (Depreciatory conditions of sale), 492. 
 
 s. 19 (Trustee's lien), 94. 
 
 s. 20 (Trustee's receipts), 62, 65. 
 
 s. 21 (Power to compromise), 114. 
 
 ss. 25 — 30 (Appointment of new trustees), 137. 
 
 s. 31 (Partitions and sales), 535. 
 
 ss. 32—40 (Appointment of new trustees), 137. 
 
 s. 41 (Vesting orders), 18, 137. 
 
 a. 42 (Payment or transfer into Court), 140. 
 
 s. 45 (Married woman's breach of trust), 136, 342. 
 
 s. 50 (Executors and trustees), 64. 
 
 TRUSTEE ACT, 1894... 121. 
 
 TRUSTEES, OLD AND NEW— 
 Notice to, of assignment, 51. 
 Old, when liable for acts of new, 138. 
 New, when bound to proceed against old, 138. 
 
 TRUSTS, CREATION OF— 
 Three requisites to, 58. 
 Who entitled to benefit, where intended trust fails, 59. 
 
 TRUSTS IN FAVOUR OF CREDITORS— 
 Revocable as a general rule, 43. 
 Irrevocable, when, 44. 
 
 Who entitled, and who not entitled, to benefit of, 44. 
 Surplus under, right to, 44. 
 Registration of, 45. 
 
 TRUSTS, VARIETIES OF— 
 
 1. Express private trusts — 
 
 (1) Executed and executory trusts, 24. 
 
 (2) Voluntary trusts and trusts for value, 26. 
 
 S S 2 
 
628 INDEX. 
 
 TRUSTS, VARIETIES OF— continued. 
 
 I. Express private trusts — contitiiicd. 
 
 (3) Fraudulent trusts, 31 . 
 
 (4) Trusts in favour of creditors, 43. 
 
 (5) Equitable assignments (Sail., appropriations), 46. 
 
 (6) Precatory trusts, 58. 
 C7) Secret trusts, 59. 
 
 (8) Trusts in the garb of powers, 60. 
 
 (9) Purchase-moneys, and trustee-vendors, 62. 
 
 II. Express public trusts, 67. 
 
 III. Implied and resulting trusts, 78. 
 
 IV. Constructive trusts, 87. 
 
 UNCERTAINTY— 
 
 In contract, effect of, 487, 489. 
 
 UNCLAIMED— 
 Debts, 210, 211. 
 Dividends, 211. 
 
 UNCONSCIONABLE BARGAINS— 
 Generally, 426. 
 
 With heirs, expectants, and reversioners, 426, 427. 
 Loans by money lenders, 57, 427. 
 
 UNDER-LEASE— 
 ■ By forfeiture of lease, is destroyed, 290, 323. 
 Relief, in such a case, 323, 324. 
 
 UNDERTAKING AS TO DAMAGES— 
 On interlocutory injunctions, 525, 526. 
 Not ffiven by crown, 526. 
 
 Or by Attorney-General, 526. 
 
 UNDERVALUE— 
 
 Sale at, generally, 239, 240, 411, 426, 493. 
 By tenant for life, 92, 411. 
 
 UNDUE INFLUENCE— 
 
 Contracts, how affected by, 415, 416. 
 On weak testators, 416. 
 
 UNREGISTERED EQUITY— 
 Enforcement of, 263. 
 
 In case of ships, 309, 310. 
 
 USES— 
 
 Origin of, 20. 
 
 Active or passive, 22. 
 
 USES, RESULTING— 
 Operation of, 22. 
 
 USES, STATUTE OF— 
 Object of, 22. 
 Failure of object of, 22. 
 Property to which applicable or inapplicable, 23. 
 
 USE UPON USE, 22. 
 
INDEX. 629 
 
 VACANT LAND— 
 
 Nuisance upon, liability for, 521. 
 
 \'ALUATION— 
 
 For sesurity, 102. 
 
 Of security, 203. 
 
 Of contingent liability, &c., 203. 
 
 Of share of partner, 455, 456. 
 
 Of tenant-right, 263. 
 
 VENDOE— 
 
 Lien of, generally, 87 et seq. 
 For improvements, 317. 
 Wilful default by, 504. 
 Remaining in possession, is a trustee, 503. 
 
 \^Ji!NDOE AND PURCHASER ACT, 1874— 
 
 Provisions of, regarding completion of contracts, 508. 
 Damages recoverable under, 509. 
 
 What damages not recoverable under, 509. 
 Decision under, effect of, 509. 
 
 VENDOR'S LIEN— 
 
 Generally, 87 et seq., 317. 
 
 Abandonment of, 87, 88. 
 
 For expenses of improvements, 317. 
 
 N'EXATiOUSNESS- 
 
 Summary suppression of, 547. 
 
 On the part of married women, 136, 342. 
 
 On the part of a public body, 517. 
 
 VOIDABLE CONTRACTS— 
 Generally, 406 et seq. 
 
 Ratification of, 304, 409. 
 In case of infants, 416, 417. 
 In case of married women, 418. 
 
 VOLUNTARY CONVEYANCES ACT, 1893— 
 Effect of, 35, 73, 266. 
 
 \'OLUNTARY SETTLEMENTS— 
 
 (1) Not necessarily fraudulent under 13 Eliz. c. 5. ..31, 32. 
 
 What amount of indebtedness will raise presumption 
 
 of fraudulent intent, 32. 
 May, by matter ex post facto, become for value, 33. 
 
 (2) Under 27 Eliz. c. 4, voluntary settlement formerly void 
 
 as against subsequent purchaser, 33. 
 
 But now valid by 56 & 57 Vict. c. 21... 35, 73, 266. 
 
 Marriage a valuable consideration, 36. 
 
 Post-nuptial settlement in pursuance of ante-nuptial 
 agreement, 36. 
 
 Post-nuptial settlement supported on slight considera- 
 tion, 36. 
 
 Mala fide settlement, although pre-nuptial, not .sup- 
 ported, 37. 
 
 (3) Post-nuptial settlement under Bills of Sale Acts, 38. 
 
 (1) Post-nuptial settlement under Bankruptcy Act, 1883. ..30. 
 
630 INDEX. 
 
 VOLUNTARY S'ETT'L'EM.'ENTS— continued. 
 
 Limitations to settlor until his bankruptcy or assignment, 
 
 operation of, 40, 41. 
 Covenants to settle, when effective, 41. 
 
 VOLUNTAEY TRUSTS— 
 
 Distinguished from trusts for value, 26. 
 General rules regarding validity of, 26, 27. 
 
 (1) Where donor is both legal and equitable owner, 28. 
 
 (a) Trusts actually created — 
 
 Either (1) By conveyance on trust, 28. 
 Or (2) By declaration of trust, 28. 
 {b) Trusts not actually created — 
 
 Either (1) No declaration of trust, 28. 
 Or (2) Incomplete conveyance, 28. 
 
 (2) Where donor is only equitable owner, 30. 
 
 (a) Trusts actually created, as above, 30. 
 
 (b) Trusts not actually created, as above, 30. 
 
 WAGES AND EARNINGS— 
 Of married women, 346, 347. 
 
 WAIVER— 
 
 Generally, 15. 
 
 Of equity, 15, 364, 368. 
 
 Of fraud, 304, 409. 
 
 Of lien, 87, 88. 
 
 Of tort, 461. 
 
 Of settlement, by wife, 364, 368. 
 
 WAIVER CLAUSE— 
 
 In prospectuses, &c., 413. 
 
 WASTE— 
 
 Injunction in cases of, 508, 518. 
 
 Account incident to, 388, 462. 
 
 Permissive, not remediable by injunction, 519. 
 
 Ameliorative, not now restrained by injunction, 519. 
 
 Forfeiture for, relief against, 327. 
 
 WIDOW— 
 
 Paraphernalia of, 357. 
 
 Settlement by, on her re-marriage, 38. 
 
 Legacy to, in lieu of dower, 149. 
 
 WIDOWER— 
 
 Settlement by, on his re-marriage, 38. 
 
 WIFE — See Maeried Woman. 
 
 WILFUL DEFAULT— 
 
 Liability of executor for, 113, 114, 222, 223. 
 Liability of mortgagee in possession for, 257, 259. 
 By vendor, 504. 
 
 WILL, PROBATE OF— 
 Generally, 549. 
 Dealing with real estate only, 551. 
 
INDEX. 631 
 
 WILLS— 
 
 Executory trusts in, 25. 
 
 Conversion under, 162. 
 
 Election under, 17S. 
 
 Forfeiture clauses in, 155, 156. 
 
 Mistakes in, when corrected in equity, 403. 
 
 Undue influence, in obtaining, 416. 
 
 Of married women, 349. 
 
 Bills to establish, 549, 550. 
 
 WINDING UP OF COMPANY— 
 Debts, proof of, in, 200 et seq. 
 Bates, &o., preferential payment of, in, 204. 
 Directors, misfeasance of, liability for, in, 413, 414. 
 
 WORDS— 
 
 Amounting to a trust, 58. 
 
 Creating a conversion, 157. 
 
 Creating the separate estate, 330. 
 
 Creating the restraint on anticipation, 339, 340. 
 
 Precatory, effect of, 58. 
 
 ^^^RITTEN ACKNOWLEDGjMBNT— 
 Of debt, effect of, 224. 
 Of mortgage debt, 247. 
 
 YEAR TO YEAR TENANCY, 253, 473. 
 YORKSHIRE REGISTRIES ACT, 1884... 90, 264, 278. 
 
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 1,500 
 25/7/12 
 
INDEX OF SUBJECTS. 
 
 Abstract Drawing — 
 
 PAGE 
 
 Scott. 1892 ... ' 
 
 27 
 
 Administration Actions — 
 
 
 Walker and Elgood. 1883 
 
 32 
 
 Administrators — 
 
 
 Walker and Elgood. 1905 
 
 31 
 
 Admiralty Law — 
 
 
 Kay. 189s 
 
 21 
 
 Smith. 1891 
 
 ,28 
 
 Advocacy- 
 
 
 Harris. 1904 
 
 18 
 
 Affiliation — 
 
 
 Martin. 1910 
 
 23 
 
 Arbitration — 
 
 
 Slater. 1905 
 
 28 
 
 Banking — 
 
 
 Ringwood. igo6 
 
 26 
 
 Bankruptcy — 
 
 
 Baldwin. 1910 
 
 6 
 
 Hazlitt. 1887 
 
 19 
 
 Indermaur(Questionand Answer). 
 
 
 1887 
 
 21 
 
 Ringwood. 1908 
 
 26 
 
 Bar Examination Journal 
 
 6 
 
 Bibliography. 1908 
 
 8 
 
 Bills of Exchange — 
 
 
 Willis. 1901 
 
 32 
 
 Bills of Lading- 
 
 
 Campbell. 1891 
 
 10 
 
 Kay. 1895 
 
 21 
 
 Bills of Sale- 
 
 
 Baldwin. 1910 
 
 6 
 
 Indermaur. 1887 
 
 21 
 
 Ringwood. 1908 
 
 26 
 
 Capital Punishment — 
 
 
 Copinger. 1876 
 
 12 
 
 Carriers — 
 
 
 See Railway Law, Ship- 
 
 
 masters. 
 
 
 Chancery Division, Practice of — 
 
 
 Brown's Edition of Snell. 1908 
 
 29 
 
 Indermaur. 1905 
 
 20 
 
 Williams. 1880 
 
 32 
 
 And see Equity. 
 
 
 Charitable Trusts — 
 
 
 Bourchier-Chilcott. 1912 
 
 II 
 
 Cooke and Harwood. 1867 
 
 12 
 
 Whitelord. 1878 
 
 32 
 
 Children- 
 
 
 Martin. 1910 
 
 23 
 
 Church and Clergy— 
 
 
 Brice. 1875 
 
 8 
 
 Civil Law— 
 
 
 See Roman Law. 
 
 
 Club Law— 
 
 
 Wertheimer. 1903 
 
 32 
 
 Codes- 
 
 
 Argles. 1877 
 
 6 
 
 Collisions at Sea — 
 
 
 Kay. 189s 
 
 21 
 
 Colonial Law — 
 
 
 Cape Colony. 1887 
 
 31 
 
 Tarring. 1906 
 
 30 
 
 Commercial Agency — 
 
 Campbell. 1891 
 
 Commercial Law — 
 
 Hurst. 1906 
 
 Common Law — 
 
 Indermaur. 1909 
 Companies Law — 
 
 Brice. 1893 
 
 Buckley. 1909 
 
 Smith. 1909 
 Compensation — 
 
 Lloyd. 189s 
 
 Compulsory Purchase- 
 Browne. 1876 
 
 Constables — 
 
 See PoLiCB Guide. 
 Constitutional Law and History- 
 
 Taswell-Langmead. 191 1 
 
 Thomas. 1908 
 
 Wilshere. 1911 ... ' 
 Consular Jurisdiction — 
 
 Tarring. 1887 
 
 Contract of Sale — 
 
 Willis. 1902 
 
 Conveyancing — 
 
 Copinger, Title Deeds. 1875 . 
 
 Deane, Principles of. 1883 
 Copyright— 
 
 Briggs (International). 1906 . 
 
 Copinger. 1904... 
 Corporations — 
 
 Brice. 1893 
 
 Browne. 1876 
 
 Costs, Crown Office — 
 
 Short. 1879 
 
 Covenants for Title — 
 
 Copinger. 1875... 
 Crew of a Ship — 
 
 Kay. 1895 
 
 Criminal Appeals 
 
 Criminal Law— 
 
 Copinger. 1876 
 
 Harris. 1912 
 
 Crown Law — 
 
 Hall. 1888 
 
 Kelyng. 1873 
 
 Taswell-Langmead. 191 1 
 
 Thomas. 1908 
 
 Crown Office Rules — 
 
 Short. 1886 
 
 Crown Practice — 
 
 Corner. 1908 
 
 Short and Mellor. 1908 
 Custom and Usage— 
 
 Mayne. 1906 
 Damages — 
 
 Mayne. 1909 
 Death Duties — 
 
 Hanson. 1911 
 
 Debt Recovery. 1909 
 
 PAGE 
 . 10 
 
 . 19 
 
 20 
 
 . 8 
 9 
 
 • 29 
 
 22 
 
 • 9 
 
 30 
 31 
 32 
 
 30 
 
 32 
 
 13 
 14 
 
 8 
 
 12 
 
 8 
 9 
 
 28 
 
 13 
 
 21 
 13 
 
 12 
 18 
 
 23 
 22 
 
 30 
 31 
 
 27 
 
 27 
 27 
 
 23 
 
 23 
 
 18 
 
STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS— conr/nuerf. 
 
 Desertion — 
 
 Martin, igio ... 23 
 
 Discovery — 
 
 Peile. 1883 25 
 
 Divorce — 
 
 Harrison. 1891. 19 
 
 Domestic Relations — 
 
 Eversley. 1906 15 
 
 Domlcll— 
 
 See Private International Law, 
 
 Dutch Law. 1887 31 
 
 Ecclesiastical Law — 
 
 Brice. 1875 8 
 
 Smith. 1911 28 
 
 Education Acts — 
 
 .S^^ Magisterial Law. 
 
 Election Law and Petitions — 
 
 O'Malley and Hardcastle. 1911 24 
 
 Seager. 1881 27 
 
 ■ Employers' Liability — 
 
 Beven. 1909 7 
 
 Equity — 
 
 Blyth. 1912 8 
 
 Choyce Cases. 1870 II 
 
 Pemberton. 1867 25 
 
 Snell. 1912 29 
 
 Story. 1892 29 
 
 Waite. 1889 ... " 31 
 
 Evidence — 
 
 Phipson. 1911 25 
 
 Examination of Students — 
 
 Bar Examination Journal ... 6 
 
 Indermaur. 1906 ... ... 20 
 
 Intermediate LL. B. 1889 ... 17 
 
 Executors — 
 
 Walker and Elgood. 1905 ... 31 
 
 Extradition — 
 
 Clarke. 1903 11 
 
 See Magisterial Law. 
 
 Factories — 
 
 See Magisterial Law, 
 
 Fisheries — 
 
 Moore. 1903 24 
 
 See Magisterial Law. 
 
 Foreign Law — 
 
 Argles. 1877 6 
 
 Dutch Law. 1887 31 
 
 Foote. 1904 IS 
 
 Foreshore- 
 Moore. 1888 23 
 
 Forgery— 
 
 See Magisterial Law. 
 
 Fraudulent Conveyances- 
 May. 1908 23 
 
 Gaius Institutes- 
 Harris. 1899 18 
 
 Game Laws— 
 
 See Magisterial Law. 
 Glove Law— 
 
 Norton-Kyshe, 1901 24 
 
 Guardian and Ward- 
 
 
 Eversley. 1906 
 
 Hackney Carriages- 
 
 ... IS 
 
 
 See Magisterial Law. 
 
 
 Hindu Law — 
 
 
 Mayne, 1906 
 
 ... 23 
 
 History— 
 
 
 Taswell- Langmead , 1 9 1 1 
 
 ... 30 
 
 Husband and Wife — 
 
 
 Eversley. 1906 
 
 ... IS 
 
 Infants — 
 
 
 Eversley. 1906 
 
 ... IS 
 
 Simpson 1909 
 
 ... 28 
 
 Injunctions — 
 
 
 Joyce. 1877 
 
 ... 21 
 
 Insurance — 
 
 
 Hartley. 1911 
 
 ... 19 
 
 Porter. 1908 
 
 ... 25 
 
 International Law — 
 
 
 Baty. 1900 
 
 ... 7 
 
 Clarke, 1903 
 
 ... II 
 
 Cobbett. 1909 
 
 ... II 
 
 Foote. 1904 
 
 ... IS 
 
 Phillipson. 1908 
 
 ... 25 
 
 I nterrogatories — 
 
 Peile. 1883 
 
 Intoxicating Liquors — 
 
 See Magisterial Law. 
 Joint Stock Companies — 
 
 See Companies. 
 Judgments and Orders — 
 
 Pemberton. 1887 
 
 Judicature Acts — 
 
 Cunningham and Mattinson. 1884 
 
 Indermaur. 187S 
 Jurisprudence — 
 
 Salmond. 1910 ... 
 Justinian's Institutes — 
 
 Campbell. 1892 
 
 Harris. 1899 
 
 King's Bench Division, Practice 
 of— 
 
 Indermaur. 190S 
 Landlord and Tenant — 
 
 Foa. 1907 
 
 LandsClauses Consolidation Act- 
 Lloyd. 189s 
 
 Land Values — 
 
 Devonshire & Samuel. 1911 ... 
 
 Latin Maxims. 1904 
 
 Leading Cases — 
 
 Common Law. 1903 ... 
 
 Constitutional Law. 1908 
 
 Equity and Conveyancing 191 1 
 
 International Law. 1 909 
 Leading Statutes — 
 
 Thomas. 1878 
 
 Leases — 
 
 Copinger. 187S 
 
 Legacy and Succession- 
 Hanson. 1911 ... 
 
 24 
 
 25 
 
 '3 
 20 
 
 27 
 
 10 
 
 IQ 
 
 14 
 13 
 
 31 
 20 
 
 30 
 13 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS— coJ7«/iued. 
 
 Legitimacy and Marriage— 
 
 See Private International Law. 
 Licensing — 
 
 Whiteley. 1911 ... ... .,. 32 
 
 See Magisterial Law. 
 Life Assurance — 
 
 Buckley. 1909 ... ... ... 9 
 
 Porter. 1908 25 
 
 Limitation of Actions — 
 
 Banning. igo6 6 
 
 Local Legislatures — 
 
 Chaster. 1906 10 
 
 Lunacy — 
 
 Renton. 1897 25 
 
 Williams. 1880 32 
 
 Magisterial Law — 
 
 Greenwood and Martin. 1890... 17 
 Maine (Sir H.), Works of— 
 
 Evans' Theories and Criticisms. 
 
 1896 15 
 
 Maintenance and Desertion — 
 
 Martin. 1910 23 
 
 Marriage Laws — 
 
 Eversley & Craies. 19 10 ... 15 
 
 Marriage and Legitimacy — 
 
 Foote. 1904 15 
 
 Married Women's Property Acts — 
 
 Brown's Edition of Griffith. 1891 17 
 Master and Servant — 
 
 Eversley. 1906 15 
 
 Mercantile Law — 
 
 Campbell. 1891 10 
 
 Duncan. 1886-7 I4 
 
 Hurst. 1906 19 
 
 Slater. 1907 28 
 
 See Shipmasters. 
 Mines — 
 
 Harris. 1877 18 
 
 Money Lenders — 
 
 Bellot. 1906 7 
 
 Mortmain — 
 
 Bourchier-Chilcott, 1905 ... II 
 
 Nationality — 
 
 See Private International Law. 
 Negligence — 
 
 Beven. 1908 7 
 
 Campbell. 1879 10 
 
 Negotiable Instruments — 
 
 Willis. 1912 32 
 
 Newspaper Libel — 
 
 Elliott. 1884 IS 
 
 Oaths- 
 Ford. 1903 .. 16 
 
 Obligations- 
 Brown's Savigny. 1872 ... 27 
 Parent and Child— 
 
 Eversley. 1906 IS 
 
 Parliament — 
 
 Taswell-Langmead. 1911 ... 30 
 
 Thomas. 1908 31 
 
 Partition — 
 
 Walker. 1882 
 
 Passengers — 
 
 See Magisterial Law. 
 „ Railway Law. 
 
 Passengers at Sea — 
 
 Kay. 189s 
 
 Patents — 
 
 Frost. 1908 and 1912 
 
 Pawnbrokers — 
 
 See Magisterial Law. 
 
 Petitions in Chancery and 
 Lunacy — 
 Williams. 1880 
 
 Pilots- 
 Kay. 1895 
 
 Police Guide — 
 
 Greenwood and Martin. 1890... 
 
 Pollution of Rivers— 
 
 Higgins. 1877 
 
 Practice Books — 
 Bankruptcy. 1910 
 Companies Law. 1909.., 
 Compensation. 1895 •■• 
 Compulsory Purchase. 1876 ... 
 Conveyancing. 1883 
 Damages.. 1909... 
 Ecclesiastical Law 191 1 
 Election Petition. 1910 
 
 Equity. 1908 
 
 Injunctions. 1877 
 
 Magisterial. 1890 
 
 Pleading, Precedents of. 1884... 
 Railways and Commission. 1875 
 Rating. 1886 
 
 31 
 
 16 
 
 32 
 
 17 
 
 19 
 
 6 
 
 9 
 22 
 
 9 
 13 
 
 23 
 28 
 
 24 
 29 
 21 
 
 17 
 
 13 
 
 9 
 
 9 
 
 Supreme Court of Judicature. 190S 20 
 
 Precedents of Pleading — 
 
 Cunningham and Mattinson. 1884 13 
 
 Mattinson and Macaskie. 1884 13 
 
 Primogeniture — 
 
 Lloyd. 1877 22 
 
 Principal and Agent — 
 
 Porter. 1906 2S 
 
 Principal and Surety — 
 
 Rowlatt. 1899 26 
 
 Principles — 
 
 Brice (Corporations). 1893 ... 8 
 
 Browne (Rating). 1886 ... 9 
 
 Deane (Conveyancing). 1883 ... 14 
 
 Harris (Criminal Law). 190S ... 18 
 
 Houston (Mercantile). 1866 ... 19 
 
 Indermaur (Common Law). 1909 20 
 
 Joyce (Injunctions). 1877 ... 21 
 
 Ringwood (Bankruptcy), 1908 26 
 
 Snell (Equity). 1908 29 
 
 Private International Law — 
 
 Foote. 1904 IS 
 
 Probate — 
 
 Hanson. 1911 18 
 
 Harrison. 1891 19 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS— conr/nued. 
 
 24 
 
 28 
 
 Public Trustee Act, 1906— 
 
 Morgan, 1907 
 
 Public Worship— 
 
 Brice. 1875 
 
 Quarter Sessions — 
 
 Smith (F. J.). 1882 ... 
 
 Questions for Students— 
 
 Aldred. 1892 6 
 
 Bar Examination Journal. 1894 6 
 
 Indermaur. 1887 21 
 
 Waite. i88q 31 
 
 Railways- 
 Browne. 1875 9 
 
 Godefroi and Shortt. 1869 ... 17 
 
 Williams. 1912 ... ... ... 32 
 
 Rating- 
 Browne. 1886 ... ... ... 9 
 
 Real Property — 
 
 Deane. 1883 13 
 
 Edwards. 1904 15 
 
 Tarring. 1882 ... ... ... 30 
 
 Records — 
 
 Inner Temple. 1896-8 21 
 
 Recovery — 
 
 Debts. 1909 14 
 
 Attenborough(Stolen Goods). 1906 6 
 
 Registration — 
 
 Elliott (Newspaper). 1884 ... 14 
 
 Seager (Parliamentary). 188 1... 27 
 
 Reports — 
 
 Bellewe. 1869 7 
 
 Brooke. 1873 9 
 
 Choyce Cases. 1870 11 
 
 Cooke. 1872 12 
 
 Criminal Appeal, igo8 to ... 13 
 
 Cunningham. 1 87 1 13 
 
 Election Petitions. 191 1 ... 24 
 
 Finlason. 1870 IS 
 
 Gibbs, Seymour Will Case. 1877 16 
 
 Kelyng, John. 1873 22 
 
 Kelynge, William. 1873 ... 22 
 Shower (Cases in Parliament). 
 
 1876 28 
 
 South African. 1S93-9 29 
 
 Roman Dutch Law — 
 
 Van Leeuwen. 1887 ... ... 31 
 
 Berwick. 1902 7 
 
 Roman Law- 
 Brown's Analysis of Savigny. 1872 27 
 
 Campbell. 1892 10 
 
 Harris. 1899 18 
 
 Salkowski. 1886 27 
 
 Whitfield. 1886 27 
 
 Salvage- 
 Jones. 1870 21 
 
 Kay. 1895 21 
 
 Savings Banks — 
 
 Forbes. 1884 16 
 
 Scintillae Juris — 
 
 Darling (C. J.). 1903 ■■■ • '3 
 
 Sea Shore — 
 
 Hall. 1888 
 
 Moore. 1888 
 
 Shipmasters and Seamen^ 
 
 Kay. 1895 
 
 Societies — See Corporations. 
 Stage Carriages — 
 
 See Magisterial Law. 
 Stamp Duties — 
 
 Copinger. 1878... 
 Statute of Limitations — 
 
 Banning. 1906 ... 
 Statutes— 
 
 Craies. 1911 
 
 Marcy. 1893 
 
 Thomas. 1878 
 
 Stolen Goods — 
 
 Attenborough. 1906 ... 
 Stoppage in Transitu — 
 
 Houston. 1866 
 
 Kay. 1895 
 
 Succession Duties — 
 
 Hanson. 1911 
 
 Succession Laws — 
 
 Lloyd. 1877 
 
 Supreme Court of Judicature 
 Practice of — 
 
 Indermaur. 1905 
 Telegraphs— 6V< Magisterial Law. 
 Title Deeds— Copinger. 1875 
 "Corts — 
 
 Ringwood. 1906 
 
 Salmond. 1912 ... 
 Tramways and Light Railways — 
 
 Brice. 1902 
 
 Treason — 
 
 Kelyng. 1873 
 
 Taswell-Langmead. 191 1 
 Trials—- 
 
 Bartlett, A. (Murder). 1886 
 
 Queen v. Gurney 1870 
 Trustees — 
 
 Easton. 1900 
 
 Ultra Vires — 
 
 Brice. 1893 
 
 Voluntary Conveyances — 
 
 May. 1908 
 
 War on Contracts — 
 
 Phillipson. 1909 
 Water Courses — 
 
 Higgins. 1877 
 
 Wills, Construction of — 
 
 Gibbs, Report of Wallace 
 Attorney-General. 1877 
 
 Mathews. 1908 
 Working Classes, Housing of — 
 
 Lloyd. 1895 
 
 Workmen's Compensation — 
 
 Beven. 1909 
 
 18 
 
 22 
 30 
 
 31 
 IS 
 
 14 
 
 =3 
 
 25 
 
 19 
 
 17 
 23 
 
6 STEVENS &" HAYNES, BELL YARD, TEMPLE BAR. 
 
 Argles' Foreign Mercantile Laws and 
 Codes in Force in tlie Principal States of 
 Europe and America 
 
 By Charles Lyon-Caen, Professeur agreg^ a la Faculte de Droit de Paris ; 
 Professeur a l'£coIe libre des Sciences politiques. Translated by Napoleon 
 Argles, Solicitor, Paris. In 8vo, price 2s., sewed. 1877. 
 
 Attenborough's Recovery of Stolen Goods. 
 
 By C. L. Attenborough, of the Inner Temple, Barrister-at-Law. In 8vo, price 
 •Js. 6d., cloth. 1906. 
 
 Baldwin's Law of Bankruptcy and Bills 
 of Sale. 
 
 With an Appendix containing The Bankruptcy Acts, 1883 — 1890 ; General Rules, 
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 of Arrangement Acts, 1887 — 1890; Rules and Forms ; Board of Trade and Court 
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 the Inner Temple, Barrister-at-Law. Tenth Edition, in Roy. 8vo, price 305., 
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 " . . . . Of course, everyone knows the work as the leading authority upon the subject with 
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 Banning's Limitations of Actions. 
 
 With an Appendix of Statutes, Copious References to English, Irish, and American 
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 Bar Examination Journal, Vols. IV., V., 
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 Containing the Examination Questions and Answers from Easter Term, 1878, to 
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 Bar Examination Annual for 1894. 
 
 (In Continuation of the Bar Examination Journal.) By W. D. Edwards, LL.B., 
 of Lincoln's Inn, Barrister-at-Law. Price 3^. 
 
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 Baty's International Law in Soutli Africa. 
 
 Including the following subjects : — Contraband for Neutral Ports, Suzerainty, 
 Passage of Troops over Neutral Territory, Conduct of Warfare, Annexation, 
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 "Six brief essays on aspects of International Law are here presented touching the joints arising 
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 Beliewe. Les Ans du Roy Richard le 
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 Collect' ensembl' hors les abridgments de Statham, Fitzherbert et Brooke. Per 
 Richard Bellewe, de Lincoln's Inne. 1585. Reprinted from the Original 
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 " No public library in the world, where English law finds a place, should be without a copy of 
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 Bellot. Legal Principles and Practice of 
 Bargains with Money = Lenders. 
 
 Including the History of Usury to the Repeal of the Usury Laws, with Appendices, 
 and containing a Digest of Cases, Annotated ; relating to Unconscionable Bargains, 
 Statutes, and Forms for the use of Practitioners. Second Edition, enlarged. 
 By Hugh H. L. Bellot, M.A., B.C.L., Barrister-at-Law. Royal 8vo. 587 pp. 
 Price Zls. 1906. 
 
 Berwick's Voet's Commentary on the 
 Pandects. 
 
 New and Revised Edition of an English Translation. Comprising all the titles on 
 Purchase and Sale— Letting and Hiring— Mortgages— Evictions— Warranty— and 
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 Fourth Edition, much enlarged, and re-arranged. By Thomas Beven, of the 
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 Being the Third Edition of " Principles of the Law of Negligence," re-arranged 
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8 STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 
 
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 Being an Investigation of the Principles which Limit the Capacities, Powers, and 
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 has been ably done. The main part of the volume, dealing in text-book form with_ the Law of 
 Tramways and Light Railways, contains in 200 pages a clear and accurate exposition of nearly 
 every point of practical interest. The value of the book is increased by furnishing the statutes 
 which form the second part of the volume with cross references to the earlier pages of the work. A 
 full list of clauses, orders, and several useful forms, complete an indispensable bowc." — Law Times. 
 
 Briggs' Law of International Copyright. 
 
 With Special Sections on the Colonies and the United States of America. By 
 William Briggs, LL.D., D.C.L., M.A., B.Sc, F.C.S., F.R.A.S. In 8vo, 
 price i6j. 1906. 
 
STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. « 
 
 Brooke's (Sir Robert) New Cases in the 
 time of Henry Vlll., Edward VI., and 
 Queen Mary. 
 
 Collected out of Brooke's Abridgment, and arranged under years, with a table, 
 together with March's (John) Translation o/"Bkookk's New Cases in the time of 
 Henry VIII., Edward VI., and Queen Mary, collected out of Brooke's Abridg- 
 ment, and reduced alphabetically under ^ their proper heads and titles, with a table 
 of the principal matters. In one handsome volume, 8vo. Price 4/. 4J., calf 
 antique. 1873. 
 
 " Both the original and the translation having long been very scarce, and the mispaging and other 
 errors in March's translation making a new and corrected edition peculiarly desirable, Messrs. 
 Stevens and Haynes have reprinted the two books in one volume, uniform with the preceding 
 volumes of the series of Early Reports." — Canada Law Journal. 
 
 Browne's Practice Before tlie Railway 
 Commissioners under the Regulation of 
 Railway Acts, 1873 and 1874 : 
 
 With the Amended General Orders of the Comniissiohers, Schedule of Forms, and 
 Table of Fees: together with the Law of Undue Preference, the Law of the Jurisdiction 
 of the Railway Commissioners, Notes of their Decisions and Orders, Precedents of 
 Forms of Applications, Answers and Replies, and Appendices of Statutes and Cases. 
 By J. H. Balfour Browne, of the Middle Temple, K.C. In one volume, 8vo, 
 price \%s., cloth. 1875. 
 
 Browne on the Compulsory Purchase 
 of the Undertakings of Companies by 
 Corporations. 
 
 And the Practice in Relation to the Passage of Bills for Compulsory Purchase through 
 Parliament. By J. H. Balfour Browne, of the Middle Temple, K.C. In 8vo, 
 price Ts. 6d., cloth. 1876. 
 
 Browne and McNaughton's Law of Rating 
 of Hereditaments in the Occupation of 
 Companies. 
 
 By J. H. Balfour Browne, of the Middle Temple, K.C, and D. N. 
 McNaughton, of the Middle Temple, Barrister-at-Law. Second Edition, in 8vo, 
 price 2y., cloth. 1886. 
 
 Buckley on the Companies (Consolida= 
 tion) Act. 
 
 The Law and Practice under the Companies (Consolidation) Act, 1900, and the 
 Limited Partnerships Act, 1907. Ninth Edition. By The Right Hen. Sir Henry 
 Burton Buckley. In Royal 8vo, price Tfis., cloth. 1909. 
 
10 STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 
 
 Cairns, Lord, Decisions in the Albert 
 Arbitration. 
 
 Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. Parts I., 
 II., and III., price 2^s., sewed. 1872. 
 
 Campbell's Compendium of Roman Law, 
 
 Founded on the Institutes of Justinian ; together with Examination Questions 
 Set in the University and Bar Examinations (with Solutions), and Definitions of 
 Leading Terms in the Words of the Principal Authorities, Second Edition. By 
 Gordon Campbell, of the Inner Temple, M.A., late Scholar of Exeter College, 
 Oxford; M.A., LL.D., Trinity College, Cambridge; Author of "An Analysis of 
 Austin's Jurisprudence, or the Philosophy of Positive Law." In One Vol., 8vo, 
 price 12s., cloth. 1892. 
 
 Campbell's Sale of Goods and Com= 
 mercial Agency. 
 
 Second Edition. By Robert Campbell, M.A., of Lincoln's Inn, Barrister-at- 
 Law; Advocate of the Scotch Bar, author of the "Law of Negligence," etc. 
 Second Edition, in one volume, royal 8vc, price 32^,, cloth. 1891. 
 
 " An accurate, careful, and exhaustive handbook on the su&ject with which it deals. The 
 excellent index deserves a special word of commendation " — Law Quarterly Review. 
 
 " We can, therefore, repeat what we said when reviewing the first edition— that the book is a con- 
 tribution of value to the subject treated of, and that the writer deals with his subject carefully and 
 fully."— Zflw Joutnal. 
 
 Campbell's Law of Negligence. 
 
 Second Edition. By Roberi" Campbell, of Lincoln's Inn, Barrister-at-Law, and 
 Advocate of the Scotch Bar. In 8vo, price I2s., cloth. 1879. 
 
 Catalogue, A, of the Reports in the 
 Various Courts of the United Kingdom of 
 Great Britain and Ireland. 
 
 Arranged in Chronological Order. By Stevens & Haynbs, Law Publishers. In 
 small 4to, price 2s. net, cloth, beautifully printed, with a large margin, for the 
 special use of Librarians. 
 
 Chaster's Local Legislatures. 
 
 A Scheme for full Legislative Devolution for the United Kingdom on Constitutional 
 lines, being a Supplement to " Executive Officers." By A. W. Chaster, of the 
 Middle Temple, Barrister-at-Law. In 8vo, price is. net. 1906. 
 
STEVENS <5h HAYNES, BELL YARD, TEMPLE BAR, H 
 
 Chilcott's, Bourchier=, Administration of 
 Charities. 
 
 Under the Charitable Trusts Acts, 1853-1894, Local Government Act, 1894, and 
 London Government Act, 1899. By Thomas Bourchier-Chilcott, of the 
 Middle Temple, Barrister-at-Law. Third Edition, in 8vo, price 28j., cloth. 1912. 
 
 "The learned author has thoroughly revised the whole work, and has brought it well up to date. 
 There is an exceUent index, a matter of great importance in a work of this kind, where the sub- 
 ject is dealt with in the way of annotated statutes." — Laiv Times. 
 
 *' The work is a useful guide in matters relating to charitable trusts.'' — Solicitors' journal, 
 
 "... All concerned in the Administration of Charities will find in Mr. Bourchier-Chilcott's work 
 a clear and trustworthy statement of their powers and duties." — Law yojtmai. 
 
 Chilcott's, Bourchier=, Law of Mortmain. 
 
 By Thomas Bourchier-Chilcott, Barrister-at-Law, Author of "Administration 
 of Charities." In demy 8vo, price 12s. 6d, 
 
 "As supplementary to the subject of the administration of charities, which has been already 
 dealt with by the author, this work is now published. Both Mortmain and Charitable Uses Acts 
 of 1S88 and 1891 are exhaustively annotated, while an excellent index, an item of no small 
 importance, will render reference an easy matter. It is undoubtedly a book that should prove 
 distinctly useful to practitioners." — Law Times. 
 
 Choyce's Practice of the High Court of 
 Chancery. 
 
 With the Nature of the several Offices belonging to that Court. And the Reports 
 of many Cases wherein Relief hath been there had, and where denyed. In 8vo, 
 price 2I. 2s., calf antique. 1870. 
 
 " This volume, in paper, type and binding (like ' Bellewe's Cases ') is a fac-simile of tlie antique 
 edition. All who buy the one should buy the other." — Canada Law youmal. 
 
 Clarke's Law of Extradition 
 
 And the Practice thereunder in Great Britain, Canada, the United States, and 
 France ; with the Conventions upon the subject existing between England and 
 Foreign Nations, and the Cases decided thereon. By Sir Edward Clarke, Knt., 
 K.C, Her Majesty's Solicitor- General, 1886- 1 892 ; formerly Tancred Student of 
 Lincoln's Inn. Fourth Edition. Prepared by the Author, and E. Percival 
 Clarke, B. A., of Lincoln's Inn, Barrister-at-Law. In 8vo, price 25 j., cloth. 1903. 
 
 "Sir Edward Clarke has prepared a fourth edition of his admirable treatise on the Law of 
 Extradition with the assistance of his son, Mr. E. Percival Clarke, of Lincoln's Inn, who is, in fact, 
 mainly responsible for it. . . . The book worthily maintains its reputation as the standard authority 
 on the subject." — Laiv Times. 
 
 "A new edition of this standard work is welcomed, and the joint effort of the author and his son 
 fully sustain its established reputation as the most authoritative and complete work on its subject." 
 — Laiv yourttal. 
 
 Cobbett's Leading Cases and Opinions on 
 International Law. 
 
 Collected and Digested from English and Foreign Reports, OfiScial Documents, 
 Parliamentary Papers, and other Sources. With Notes and Excursus, containing 
 the Views of the Text- Writers on the Topics referred to, together with Supple- 
 mentary Cases, Treaties, and Statutes; and Embodying an Account of some of the 
 more important International Transactions and Controversies. By PiTT COBBETT, 
 IMC.A., D.C.L., of Gray's Inn, Barrister-at-Law, Professor of Law, University of 
 Sydney, N.S.W. In 8vo, price iss., cloth. 1909. 
 
 "The boolc is well arranged, the materials well selected, and the comments to the point Much 
 will be found in small space in this book." — Law youmaL 
 
 "The notes are concisely written and trustworthy The reader will learn from them a 
 
 great deal on the subject, and the book as a whole seems a convenient introduction to fuller 
 and more systematic works." — Oxford Magazine. 
 
12 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 Cooke's (Sir Q.) Gommon Pleas Reports 
 in the Reigns of Queen Anne and Kings 
 George I. and II. 
 
 The Third Edition, with Additional Cases and References contained in the Notes 
 taken from L. C. J. Eyre's MSS. by Mr. Justice Nares, edited by Thomas 
 TowNSEND BUCKNILL, of the Inner Temple, Barrister-at-Law. In 8vo, price 
 3/. 3^., calf antique. 1872. 
 
 " Law books never can die or remain long dead so long as Stevens and Haynes are willing to 
 -continue them or revive them when dead. It is certainly surprising to see with what facial 
 accuracy an old volume of Reports may be produced by these modern publishers, whose good taste 
 is only equalled by their enterprise." — Canada Laiu yoitrnal. 
 
 CoOke and Harwood's Charitable Trusts 
 Acts, 1853, 1855, i860. 
 
 The Charity Commissioners' Jurisdiction Act, 1862 ; the Roman Catholic Charities 
 Acts; together with a Collection of Statutes relating, to or affecting Charities, 
 including the Mortmain Acts, Notes of Cases from 1853 to the present time, Forms 
 of Declarations of Trust, Conditions of Sale, and Conveyance of Charity Land, and 
 a very copious Index. Second Edition. By Hugh Cooke and R. G. Harwood, 
 of the Charity Cornmission-. In 8vo, price \ts., cloth. 1867. 
 
 Copinger's Law of Copyright 
 
 In Works of Literature and Art ; including that of the Drama, Music, Engraving, 
 Sculpture-, Painting, Photography,, and Designs ; together with International and 
 Foreign Copyright, with the Statutes relating thereto, and References to the 
 English and American Decisions. By Walter Arthur Copinger, of the 
 Middle Temple, Barrister:at-Law. Fourth Edition. By J. M. Easton, of the 
 Inner Temple, Barrister-at-Law. In Royal 8vo, price 36^-., cloth. 1904. 
 
 "Mr. Copinger's book is very ^comprehensive, dealing with every branch of his subject,, and 
 even extending to copyright inforelgn countries. ,. So far as we have examined, we have found all the 
 recent authorities noted up with scrupulous care, and there is an unusually good index. These 
 are merits which will, doubtless, lead to the placing of this edition on the shelves of the members 
 of the profession whose business is concerned with copyright ; and deservedly, for the book is one 
 of considerable value." — Solicitors' youmal. 
 
 Copinger's Tables of Stamp Duties from 
 18 15 to 1878. 
 
 By W.ALTER Arthur Copinger, of the Middle Temple, Esquire, Barrister-at 
 Law ; Author of " The Law of Copyright in Works of Literature and Art," " Index 
 to Precedents in Conveyancing," " Title Deeds," &c. In 8vo, price 2s. dd., cloth. 
 1878. 
 
 Copinger's Abolition of Capital Punish= 
 ment. 
 
 Embracing more particularly an Enunciation and Analysis of the Principles of 
 Law as applicable to Criminals of the Highest Degree of Guilt. By Walter 
 Arthur Copinger, of the Middle Temple, Esquire, Barrister-at-Law. In 8vo, 
 price I.S net, sewed. 1876. 
 
 Copinger's Title Deeds 
 
 Their' Custody, Inspection, and Production, at Law, in Equity, and in Matters of 
 Conveyancing. Including Covenants for the Production of Deeds and Attested 
 : Copies; with an Appendix of Precedents, the Vendor and Purchaser Act, 1874, &c., 
 &c. ,&c. By Walter Arthur Copinger, of the Middle Temple, Barrister-at- 
 Law; Author of "The Law of Copyright" and "Index to Precedents in Con- 
 veyancing." In one volume, 8vo, price 14J., cloth. 1875. 
 
STEVENS &', HAYNES, BELL YARD, TEMPLE BAR. 13 
 
 Cotterell's Latin Maxims and Plirases. 
 
 Literally Translated. Intended for the use of Students for all Legal Examinations. 
 
 Second Edition. By J. N. Cotterell, Solicitor. In 8vo, price 4;-., cloth. 1904. 
 
 " ^'^"r ^^^^ seems admirably adapted as a book of reference for students who come across a Latin 
 maxim in their reading." — Law Journal, 
 
 Craies' Statute Law. 
 
 Founded on Hardcastle on Statutory Law. With Appendices containing 
 Words and Expressions used in Statutes which have been judicially or statutably 
 construed, and the Popular and Short Titles of certain Statutes, and the Inter- 
 pretation Act, 1899. By Wtlliam Feilden Craies, M.A., of the Inner Temple 
 and Western Circuit, Barrister-at-Law. 
 
 Second Editio?i. Royal Svo, Price iZs. Cloth. 191 1. 
 
 "._ . . . Perhaps a book of this kind was never needed so much as at the present time, when the 
 Legislature has seen fit to pass enactments that, to say the least, are ill drawn, and are .furthra- 
 complicated by legislation by reference. Both the profession and students will find this work of great 
 assistance as a guide in that difficult branch of our law, namely the construction of Statutes."— 
 Laiv Times. 
 
 'I This new edition of Hardcastle bears signs of the painstaking research and careful arrangement 
 which we expect and get from Mr. Craies." — Laiv JouniaL 
 
 . " This is a carefully edited editipn of a work of considerable value. The editor having prepared 
 the second edition is familiar with his subject, and we find throughout the book the recent decision's 
 and dicta on the subject very neatly inserted." — Solicitors' Journal. 
 
 Criminal Appeal Reports. 
 
 Dealing (exclusively) with the whole of the Cases in the new Court of Criminal 
 Appeal, both those before the single Judge thereof and those before a full Court. 
 They will, therefore, include not only arguments on points of Law and Practice 
 (such as those with which the Court for Crown Cases Reserved dealt), but also 
 accounts of hearings on questions of Fact and Sentence. The price of the volume 
 to Subscribers (prepaid) will be 25^., not prepaid the price is 30^. ; that of the 
 separate parts will vary according to the size. Vol. VIII. is now in progress. Edited 
 by Herman Cohen, Barrister-at-Law, Editor of the 13th Edition of " Roscoe's 
 Criminal Evidence," and of " The Criminal Appeal Act, 1907." 
 
 Cunningham and Mattinson's Selection 
 of Precedents of Pleading 
 
 Under the Judicature Acts in the Common Law Divisions. With Notes explanatory 
 of the different Causes of Action and Grounds of Defence ; and an Introductory 
 Treatise on the Present Rules and Principles of Pleading as illustrated by the various 
 Decisions down to the Present Time. By J. Cunningham and M. W. Mattinson. 
 Second Edition. By Miles Walker Mattinson, of Gray's Inn, Barrister-at- 
 Law, and Stuart Cunningham Macaskie^ of Gray's Inn, Barrister-at-Law. 
 In 8vo, price 28^.', cloth. 1884. 
 
 Cunningham's Reports. 
 
 Cunningham's (T.) Reports in K. B., 7 to 10 Geo. II.; to which is prefixed 
 a Proposal for rendering the Laws of England clear and certain, humbly offered 
 to the Consideration of both Houses of Parliament. Third edition, v/ith numerous 
 Corrections. By Thomas Townsend Bucknill, Barrister-at-Law. In 8vo, 1871, 
 price 3/. y., calf antique. 
 
 Darling's Scintillae Juris and Meditations 
 in the Tea Room. 
 
 By the Hon. Mr. Justice Darling. With Colophon by the late Sir Frank 
 LocKWOOD, Q.C., M.P. Price 5J. net. 1902. 
 
 *'* Scintillae Juris' is that little bundle of humorous essays on law and cognate matters which, 
 since the day of its first appearance, some years ago, has been the delight of legal circles. , . . 
 It has a quality of style which suggests much study of Bacon in his lighter vein. Its best essays 
 would not be unworthy of the Essays, anefc if read out, one by one, before a blindfolded connoisseur^ 
 might often be assigned to that wonderful hook."~Daily Neivs. 
 
14 STEVENS b' HAYNES, BELL YARD, TEMPLE BAR. 
 
 Deane'^ Principles of Conveyancing. 
 
 An Elementary Work for the use of Students. By Henry C. Deane, of Lincoln's 
 Inn, Barrister-at-Law, sometime Lecturer to the Incorporated Law Society of the 
 United Kingdom. Second Edition, in one volume, 8vo, price l%s., cloth. 1883. 
 
 De Bruyn's Opinions of Qrotius 
 
 As contained in the Hollandsche Consultatien en Advijsen. Collated, translated, 
 and annotated by D. P. DE Bruyn, B.A., LL.B., Ebden Essayist of the University 
 of the Cape of Good Hope ; Advocate of the Supreme Court of the Colony of the 
 Cape of Good Hope, and of the High Court of the South African Republic. With 
 Facsimile Portrait of HuGO DE Groot. In I Vol., 8vo, price 40J., cloth. 
 1894. 
 
 Debt Recovery. 
 
 A simple guide to County Court Actions, with full Scale of Fees. Just oiit. In 
 crown 8vo, price \s. net. 
 
 Devonshire and 5amuel on Land Values 
 Duties. 
 
 Being an Examination of Part I. of the Finance (1909-10) Act, 1910, and the other 
 . Sections of that Act relating to Land Values Duties. By George H. Devonshire, 
 of Lincoln's Inn, and Frank V. Samuel, of the Inner Temple, Barristers-at-Law. 
 In royal 8vo, price 2\s. net, with Supplement containing the Amendments contained 
 in Part I. of the Revenue Act, 191 1 ; the Rules for the Collection of Increment 
 Value Duty or the " proper proportion " of such Duty ; and the Rules as to appeals 
 (l) to the Referee and (2) to the High Court. Being a Supplement to the First 
 Edition of " Devonshire and Samuel's Duties on Land Values," dealing vrith the 
 above matters, and containing additional Forms issued under the Finance (1909-10) 
 Act, igio. The Supi'lement can be had separately, price c,s. net. 
 
 Duncan's Mercantile Cases for tlie Years 
 1885 and 1886. 
 
 Being a Digest of the Decisions of Ihe English, Scotch and Irish Courts on Matters 
 Relating to Commerce. By James A. Duncan, M.A., LL.B., Trinity College, 
 Cambridge, and of the Inner Temple, Barrister-at-Law. In .8vo, price \2.s. 6d., 
 cloth. 1886—7. 
 
 Easton's Law as to the Appointment of 
 New Trustees. 
 
 With Appendices containing Forms and Precedents and Material Sections of the 
 Trustee Act, 1893, ^-^d the Lunacy Acts, 1890 and 1891. By J. M. Easton, of 
 the Inner Temple, Barrister-at-Law. In 8vo, price ys. 6d., cloth. 1900. 
 
 "... Mr. Easton has devoted great ability and learning to a treatise on this one subject, and 
 saved all who may in future be wise enough to consult his work the labour of searching through many 
 other more ponderous tomes for what they will most likely find here more fully considered. Mr. 
 Easton has not only carefully examined the cases to discover and expound what has been decided, 
 but he has shown great ingenuity in imagining what difficulties ma;^ arise, and sagacity in a.pplying 
 principles to their solution. The book is. very complete, end contains some useful precedents, and 
 the material sections of the Trustee Act, 1893, and the Lunacy Acts, 1^90 and i8qi." — Law 
 Mn^azine and Review. 
 
 " Into one compact volume the author has collected the whole of the information on this subject 
 . . . and those who require information on this subject will find Mr. Easton's book a valuable aid." 
 — Law Tfvtes. 
 
 "This is a useful book on an important subject, the law of which — though often supposed to be 
 simple— is in realitir full of pitfalls. . . . Mr. Easton has done his work well, and his treatment oi 
 his subject is practically exhaustive.'* — Law Journal. 
 
 " Mr. Easton has turned out a treatise of excrejie practical utilitv well arranged, exhaustive 
 and reliable."— 6'rt^wrffay Review, 
 
STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 15 
 
 Edwards' Compendium of the Law of 
 Property in Land. 
 
 For the use of Students and the Profession. By William Douglas Edwards, 
 LL.B., of Lincoln's Inn, Barrister-at-Law. Fourth Edition, price 20s., cloth. 
 1904. 
 
 " ThK book has rapidly become popular, and may now, we think, fairly claim to be to the present 
 generation what Burton's Compendium' was to our forefathers."— Zaii/ Journal. 
 IT ■ i. '■^°'^' however, ' Edwards ' is once more thoroughly up to date, and we hope that the 
 fourth lldition will have as rapid a sale as the two first editions. It is unnecessary for us to write 
 at length about the excellences of the work. . . ."—Law Notes. 
 
 " Mr. Edwards' treatise on the Law of Real Property is marked by excellency of arrangement 
 
 and conciseness of statement We are glad to see, by the appearance of successive editions, 
 
 'hM the merits of the book are appreciated."— .yo/iaVoT-j' Journal. 
 
 So excellent is the arrangement that we know of no better compendium upon the subject of which 
 It treats. '—Zaw Times. 
 
 "We consider it one of the best works published on Real Property 'L^.-h.'— Law Students 
 journal. 
 
 The author has the merit of being a sound lawyer, a merit perhaps not always possessed by 
 the authors of legal text-books for students."— .taa; Quarterly Review. 
 
 Elliott's Newspaper Libel and Registra= 
 lion Act, 1 88 1. 
 
 With a Statement of the Law of Libel as Affecting Proprietors, Publishers, and 
 Editors of Newspapers. By G. Elliott, Barrister-at-Law, of the Inner Temple. 
 In 8vo, price 4f. 6</., cloth. 1884. 
 
 Evans' Theories and Criticisms of Sir 
 Henry Maine. 
 
 By Morgan O. Evans, Barrister-at-Law. Contained in his six works, " Ancient 
 Law," "Early Law and Customs," "Early History of Institutions," "Village 
 Communities," "International Law," and "Popular Government," which works 
 have to be studied for the various examinations. In 8vo, price 5j., cloth. 1896. 
 
 Eversley and Craies' Marriage Laws of 
 the British Empire, 
 
 By William Pinder Eversley, of the Inner Temple, Recorder of Sudbury, 
 and William Feilden Craies, of the Inner and Middle Temples, Barristers-at- 
 Law. In royal 8vo, price 22s. 6d. cloth. 1910. 
 
 "The publication of this work Alls a decided want, and the Authors are to be congratulated upon 
 this volume, dealing as it does with a distinctly complex subject-matter. . . ." — Law Times. 
 
 Eversley's Domestic Relations. 
 
 Including Husband and Wife : Parent and Child : Guardian and Ward : Infants r 
 and Master and Servant. By William Pinder Eversley, B.C.L., M.A., of the 
 Inner Temple, Barrist^r-at-Law. Third Edition, in royal 8vo, price 38^. , cloth. 1906. 
 "We are glad to see a second edition of Mr. Eversley's useful work. There is a convenience in 
 having the various subjects of which it treats collected in one volume, while at the same time each 
 is handled with such fulness as to give the reader all the information he could expect in a separate 
 volume. Mr. Eversley states the law with the most painstakmg thoroughness, and has made an 
 exhaustive survey of all the relevant statutes and cases. . . . Great care has been taken to make 
 the present edition complete and accurate, and a very full index adds to its utility." — Solicitors' 
 youmal. 
 
 Finlason's Queen v, Qurney and others 
 
 In the Court of Queen's Bench before the Lord Chief Justice Cockburn. With 
 Introduction, containing History of the Case, and Examination of the Cases at Law 
 and Equity applicable to it. By W. F. Finlason, Barrister-at-Law. In 8vo, 
 price 10s. 6d., cloth. 1870. 
 
 Foa's Law of Landlord and Tenant. 
 
 By Edgar Foa, of the Inner Temple, Barrister-at-Law. Fourth Edition, price 
 30J-. cloth. 1907. 
 
16 STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 Foote's Private International Jurispru= 
 dence 
 
 Based on the Decisions in the English Courts. By John Alderson Foote, one 
 of His Majesty's Counsel ; Chancellor's Legal Medallist and Senior Whewell 
 Scholar of International Law, Cambridge University, 1873 ; Senior Student in 
 Jurisprudence and Roman Law, Inns of Court Examination, Hilary Term, 1874. 
 Third Edition, in roy. 8vo, cloth, 25^. 1904. 
 
 ". . . . This excellent work on private international law is now well known throughout the Profession, 
 and its assistance to lawyers who have to deal with the difficult questions that arise on the subject 
 is undoubted. The ' continuous summary ' which appears throughout, and is reprinted in extenso 
 at the end of the volume, is a valuable guide to the reader, and will enable him to get a good grasp 
 of a subject which is both difficult and complex." — Law Times, 
 
 Forbes' Law of Savings Banks since 1878. 
 
 With a Digest of Decisions made by the Chief Registrar and Assistant Registrars of 
 Friendly Societies from 1878 to 1882, being a Supplement to the Law relating to 
 Trustee and Post Office Savings Banks. By U. A. Forbes, of Lincoln's Inn, 
 Barrister-at-Law. In demy i2mo, price 6s., cloth. The complete work can be had, 
 .price I oj. 6a?. •1884.., .. 1 
 
 Forbes' Statutory Law relating: to 
 Trustee Savings Banks (1863 — 1891). 
 
 Together with the Treasury Regulations (1888 — 1889), and the Scheme for the 
 Appointment of the Inspection Committee of Trustee' Savings Banks. By 
 Urquhart A. Forbes, of Lincoln's Inn, Esq., Barrjster-at-Law, Author of " The 
 Law Relating to Savings Banks " ; the " Law of Savings Banks since 1878 " ; and 
 joint Author of "The Law Relating to Water." In demy I2mo, price $s. 1892. 
 
 Ford on Oaths, for use by Commissioners 
 for Oaths 
 
 And all Persons Authorised to Administer Oaths in the British Islands and the 
 Colonies, containing Special Fprms of Jurats and Oaths — Information as to 
 Affidavits, Affirmations and Declarations — Directions for the Guidance of 
 Solicitors Applying to be Appointed English Commissioners : also Tables of Fees, 
 Statutes, etc., and general Practical Information as to the Powers, Duties, 
 Designation, and Jurisdiction of all Official and other Persons authorised to 
 administer Oaths, as affected by the Commissioners for Oaths Acts, 1889, 1890, 
 1891, and other Statutes, and by Rules of Supreme Courts of England and Ireland ; 
 with Notes of Recent Decisions. Eighth Edition. By Frederick Hugh Short, 
 Chief Clerk of the Crown Office, King's Bench Division. In crown 8vo, price 
 y. td. net. 
 
 Frost's Law and Practice relating to 
 Letters Patent for Inventions. 
 
 With an Appendix of Statutes, International Convention, Kules, Forms, and 
 Precedents, Orders, etc. By Robert Frost, B.Sc. (Lend.)* Fellow of the 
 Chemical Society ; of Lincoln's Inn, Esquire, Barrister-at-Law. Fourth Edition 
 in 2 vols., royal 8vo, price 38J., cloth. 1912. 
 
 " It is about seven years since we had the pleasure of noticing Mr. Frost's work on Patent Law, 
 and formed the opinion that its success would be secured by its undoubted merit. In the time that 
 has elapsed ' Frost on Patents' has taken its place securely as the leading text book on the subject. 
 ... To all, whether lawyers or patent agents, who require assistance in the law of patents^ 
 Mr. Frost's book will be welcome as a mine of valuable and accurate information." — Laiv Timesi 
 
 " Mr. Frost has in this second edition produced a most admirable and exhaustive treatise on the 
 Patent Law of the United Kingdom. . . ■. It is a work of well-directed industry from the pen of 
 one versed in this important branch of the law, and there are few questions arising in patent law 
 and practice on which adequate information and a complete collection of the authorities, will not be 
 found within this volume. . . , We congratulate Mr. Frost on having produced a very important 
 addition to our law text books." — Law Journal. 
 
 " When the first edition of this work appeared, more than seven years ago, we were glad to be 
 able to speak of it in favourable terms, and the opinion which we then expressed may be repeated with 
 greater entphasis with I'espect to this second edition, which leaves "little to be desired either as a 
 statement of the law and i:>ractice or as a monument of the author's industry and accuracy. . . . The 
 net result of our examination of the book is to satisfy us that it is one for which the profession will 
 very properly be grateful." — Solicitors* Journal. 
 
STEVENS &- HAYNES, BELL YAXD, TEMPLE BAR. 17 
 
 Frost's Patents and Designs Act, 1907. 
 
 With Rules and Forms, &c. By Robert Frost, B.Sc. (Lond.), Fellow of the 
 Chemical Society; of Lincoln's Inii, Esq., Barrister -at -Law. In royal 8vo, 
 price loj-., cloth. 1908. 
 
 Qibbs' Case of Lord Henry Seymour's 
 Will (Wallace v. The Attorney = General). 
 
 Reported by Frederick Weymouth Gibbs, C.B., Barrister-at-Law, late Fellow 
 of Trinity College, Cambridge. In royal 8vo, price ioj., cloth. 1S77. 
 
 Qodefroi & 5hortt's Railway Companies. 
 
 Comprising the Companies Clauses, the Lands Clauses, the Railways Clauses 
 Consolidation Acts, the Railway Companies Act, 1867, and the Regulation of 
 Railways Act, 1868; with Notes of Cases on all the Sections, brought down to the 
 end of the year 1868 ; together with an Appendix giving all the other material Acts 
 relating to Railways, and the Standing Orders of the Houses of Lords and 
 Commons ; and a copious Index. By Henry Godefroi, of Lincoln's Inn, and 
 John Shortt, of the Middle Temple, Barristers-at-Law. In 8vo, price 32^., 
 cloth. 1869. 
 
 Greenwood & Martin's Magisterial and 
 Police Ouide: 
 
 Being the law relating to the Procedure, Jurisdiction, and Duties of Magistrates and 
 Police Authorities, in the Metropolis and in the country, with an Introduction show- 
 ing the General Procedure before Magistrates both in Indictable and Summary 
 Matters. By Henry C. Greenwood, Stipendiary Magistrate for the district of the 
 Staffordshire Potteries ; and Temple Chevalier Martin, Chief Clerk to the 
 Magistrates at Lambeth Police Court, London ; Author of "The Law of Mainten- 
 ance and Desertion," " The New Formulist," etc. Third Edition. Including the 
 Session 52 & 53 Vict., and the cases decided in the superior courts to the end of the 
 year 1889, revised and enlarged. By Temple Chevalier Martin. In 8vo, 
 price 32J., cloth. i8go. 
 
 Griffith's Married Women's Property 
 Acts; 1870, 1874, 1882 and 1884. 
 
 With Copious and Explanatory Notes, and an Appendix of the Acts relating to 
 Married Women. By Archibald Brown, M.A., Edinburgh and Oxon., and 
 the Middle Temple. Barrister-at-Law. Being the Sixth Edition of The Married 
 Women's Property Acts. By the late J. R. Griffith, B.A. Oxon., of Lincoln's 
 Inn, Barrister-at-Law. In 8vo, price 9^., cloth. 1891. 
 
 Handbook to the Intermediate and Final 
 LL.B. of London University. 
 
 Pass and Honours. Including a complete Summary of " Austin's Jurisprudence," 
 and the Examination Papers of late years in all branches. By a B.A., LL.B. 
 (Lond.). Second Edition, in Svo, price 6j., cloth. 1889, 
 
18 STEVENS 6r= HAYNES, BELL YARD, TEMPLE BAR, 
 
 Hanson's Death Duties. 
 
 Being the Sixth Edition of the Acts relating to Estate Duty, Finance, Probate, 
 Legacy, and Succession Duties. The Finance Acts, 1894, 1896, 1898, 1900, 1907, 
 1909-10; with Rules. The Revenue Act, 191 1 ; Legacy Duty Act, 1796; Stamp 
 Act, 1815 ; Succession Duty Act, 1853; Customs and Inland Revenue Act, 1880 
 and 1881 ; with Notes to the various Acts. An Appendix and a full Index.. By 
 Alfred Hanson, of the Middle Temple, Esq., Barrister-at-Law, Comptroller 
 of Legacy and Succession Duties. Sixth Edition by F. H. L. Errington, M.A., 
 Barrister-at-Law. In 8vo, price 36J., cloth. 1911, 
 
 "The Fifth Edition of this deservedly well-known text-book has been carried out with much 
 care, and many improvements by Mr. Errington, Sir Lewis Dibdin being now otherwise occupied 
 with official duties .... And by way of a more complete consecutiveness, all the Acts are 
 printed without notes at the end of this part, with marginal references to the pages at which the 
 sections are treated in detail. This arrangement will much improve the usefulness of the book for 
 the busy man, who does not appreciate that form of original research, which reaches its highest 
 perfection In the brains of experts in Bradshaw. The Amending Acts and new decisions appear to be 
 fully incorporated, and will combine with the new arrangement to make the book most acceptable to 
 the profession." — Solicitors' Journal. 
 
 "Seven years have elapsed since the last Edition of Hanson was published, and the profession 
 will welcome this new edition not less cordially than its predecessors .... The plan of 
 separating the sub-sections of the Acts, which led to confusion, has been abandoned, and the differ- 
 ence between the type of the Statutes and the notes has been made greater. The reputation of the 
 work of a leading authority on a complicated subject is fully maintained." — Law Journal. 
 
 " . , . . Since the last Edition there have been two Amending Acts dealing with estate duty, and 
 a large number of cases decided by the courts, all of which have been duly incorporated in the text. 
 All the Acts relating to estate duty have been printed together as a whole— a convenient arrange- 
 ment. The book may well be described as the leading work on the Death Duties." — Law Times. 
 
 Harris' Illustrations in Advocacy, 
 
 With an Analysis of the Speeches of Mr. Hawkins, Q.C. (Lord Brampton) in the 
 Tichborne Prosecution for Perjury. (A study in Advocacy.) Also a Prefatory 
 Letter from the Right Hon. Lord Brampton. By Richard Harris, K.C, a 
 Bencher of the Middle Temple. Fourth Edition, re-written by the Author. l2mo. 
 Price Ts. 6d., cloth. 1904. 
 
 Harris's Principles of the Criminal Law. 
 
 Intended as a Lucid Exposition of the subject for the use of Students and the 
 Profession. By Seymour F. Harris, B.C.L., M.A. (Oxon.), Author of "A 
 Concise Digest of the Institutes of Gaius and Justinian." Twelfth Edition. By 
 C. L, Attenborouoh, of the Inner Temple, Barrister-at-Law. In 8vo, price 20J., 
 cloth. 1912. 
 
 "This Standard Textbook of the Criminal Law is as good a book on the subject as the ordinary 
 student will find on the library shelves .... The book is very clearly and simply written. No 
 previous legal knowledge is taken for granted, and everything is explained in such a manner, that 
 no student ought to have much difficulty in obtaining a grasp of the subject. . ." — Solicitors' 
 
 Journal. 
 
 " . . . . As a Student's Textbook we have always felt that this work would be hard to beat, and at 
 the present time we have ao reason for altering our opinion " — Law Times. 
 
 Harris's Institutes of Qaius and Justinian. 
 
 With copious References arranged in Parallel Columns, also Chronological and 
 Analytical Tables, Lists of Laws, &c., &c. Primarily designed for the use of 
 Students preparing for Examination at Oxford, Cambridge, and the Inns of Court, 
 By Seymour F. Harris, B.C.L., M.A., Worcester College, Oxford, and the 
 Inner Temple, Barrister-at-Law, Author of "Universities and Legal Education." 
 Third Edition, ip crown 8vo, 6s. 1899. 
 
 " This book contains a summary in English of the elements of Roman Law as contained in the 
 works of Gaius and Justinian, and is so arranged that the reader can at once see what are the 
 opinions of either of these two writers on each point. From the very exact and accurate references 
 to titles and sections given he can at once refer to the original writers. The concise manner in 
 which Mr. Harris^ has arranged his digest will render it most useful, not only to the students 
 for whom it was originally written, but also to those persons who, though they have not the time to 
 wad« through the larger treatises of Poste, Sanders, Ortolan, and others, yet desire to obtain 
 some knowledge of Roman Law," — Oxford and Cambridge Undergraduates' Journal. 
 
STMVENS &- HAYNES, BELL YARD, TEMPLE BAR. 19 
 
 Harris's Titles to Mines in the United 
 States. 
 
 With the Statutes and References to the Decisions of the Courts relating thereto. 
 By W. A. Harris, B.A. Oxon., of Lincoln's Inn, Barrister-at-Law ; and of the 
 American Bar. In 8vo, price 7^. arf. , cloth. 1877. 
 
 Harrison's Epitome of tlie Laws of Pro= 
 bate and Divorce. 
 
 For the use of Students for Honours Examination. By J. Carter Harrison, 
 Solicitor. Fourth Edition, in 8vo, price "Js. 6d., cloth. 1891. 
 
 " The work is considerably enlarged, and we think improved, and will be found of great assist- 
 ance to students." — Lmv Students' Journal. 
 
 Hartley's Analysis of the Law of Insurance. 
 
 By D. H. J. Hartley, M.A. (Cantab.), of the Middle Temple and Midland Circuit, 
 Barrister-at-Law. One of the Lecturers on Insurance Law, Commercial Law, and 
 Local Government and Municipal Law to the Education Committee of the London 
 County Council. In crown 8vo, price 2s. td. net, cloth ; 19H. 
 
 Hazlitt & Ringwood's Bankruptcy Act, 
 
 1883. 
 
 With Notes of all the Cases decided under the Act ; the Consolidated Rules and 
 Forms, 1886 ; the Debtors Act, 1869, so far as applicable to Bankruptcy Matters, 
 with Rules and Forms thereunder ; the Bills of Sale Acts, 1878 and 1882 ; Board of 
 Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs, Fees, 
 and Percentages, 1886 ; Orders of the Bankruptcy Judge of the High Court ; and a 
 Copious Index. By William Hazlitt, Esq., Senior Registrar in Bankruptcy, 
 and Richard Ringwood, M.A., of the Middle Temple, Esquire, Barrister-at-Law. 
 Second Edition, by R. RiNGWoou, M.A., Barrister-at-Law. In crown 8vo, price 
 I2J. (,d., doth. 1887. 
 
 Higgins' Pollution and Obstruction of 
 Water Courses. 
 
 Together with a Brief Summary of the Various Sources of Rivers Pollution. By 
 Clement Higgins, M.A., F.C.S., of the Inner Temple, Barrister-at-Law. In 
 one volume, 8vo, price \2s., cloth. 1877. 
 
 Houston's Stoppage in Transitu, Reten= 
 tion, and Delivery. 
 
 By John Houston, of the Middle Temple, Barrister-at-Law. In one volume, 
 demy 8vo, price loj. bd., cloth. 1866. 
 
 Hurst & Cecil's Principles of Commercial 
 Law. 
 
 With an Appendix of Statutes, Annotated by means of references to the Text. 
 Second Edition. By Joseph Hurst, of the Inner Temple, Barrister-at-Law. In 
 one volume, 8vo, price \os. 6d.j cloth. 1906. 
 
 "Their compendium, we believe, will be found a really useful volume, one for the lawyer and 
 the business man to keep at his elbow and which, if not giving them all that they require,_will 
 
 f)lace in their hands the key to the richer and more elaborate treasures of the Law which lit in 
 arger and more exhaustive works." — Law Times. 
 
 "The object of the authors of this work, they tell us in their preface, is to state, within a 
 moderate compass, the principles of commercial law. Very considerable pains have obviously been 
 expended on the task, and the book is in many respects a very serviceable one." — Law Jaurnal. 
 
20 
 
 STEVENS -Sf HAYNES, BELL YARD, TEMPLE BAR. 
 
 Indermaur'5 Principles of the Common 
 Law. 
 
 Intended for the use of Students and the Profession. Eleventh Edition. By Joh.m 
 Indermaur, Solicitor, Author of "A Manual of the Practice of the Supreme 
 Court," " Epitome.s of Leading Cases,'' and other Works ; and Charles Thwaites, 
 Solicitor. In 8vo, 20s. 1909. 
 
 ^* That invaluable students' manual, Indermaur's * Principles of thfe Common Law.'-has entered 
 upon a tenth edition in less than two years and a half. Assisted by Mr. Charles Thwaites, 
 the learned author has incorporated recent cases, and generally revised the work in his usual skilful 
 fashion." — Law Times. 
 
 " The appearance of a tenth edition of ' Indermaur on Common Law ' shows that the work has 
 established for itself a safe "[tosWiovt."— Solicitors^ journal. 
 
 Indermaur's Manual of the Practice of 
 the Supreme Court of Judicature, 
 
 In the King's Bench and Chancery Divisions. Ninth Edition. Intended for the 
 use of Students and the Profession. By John Indermaur, Solicitor. In 8vo, 
 price 15^., cloth. 1905. 
 
 *'The eighth edition of Indermaur's 'Manual of Practice' (London: Stevens and Haynes), 
 chiefly called for by reason of the Order XXX., has also been partly rewritten and improved in 
 arrangement and detail. While primarily designed for students, we may mention that it will be found 
 a useful companion to the White Book." — Law Times. ' . . 
 
 " The arrangement of the book is good, and references are given to the leading decisions. Copious 
 references are also given to tHe rules, so that the work forms a convenient guide to the larger 
 volumes on practice. It is a very successful attempt to deal clearly and concisely with an important 
 and complicated subject." ^Solici tors' Journal. 
 
 Indermaur's Leading Conveyancing and 
 Equity Cases. 
 
 With some short notes thereon, for the use of Students. By John Indermaur, 
 SoUcitor, Author of "An Epitome of Leading Common Law Cases." Tenth 
 Edition by C. Thwaites. In 8vo. In preparation. • 
 
 "The Epitome well deserves the continued patronage of the class — Students — for whom it is 
 especially.intended, Mr. Indermaur will soon be known as the ' Student's Friend.' " — Canada Law 
 your7ial. 
 
 Indermaur's Leading; Common Law Cases; 
 
 With some short notes thereon. Chiefly intended as a Guide to " Smith's 
 Leading Cases." By C. Thwaites, Solicitor. Ninth Edition, in 8vo, price 6i., 
 cloth. 1903. 
 
 Indermaur's Articled Clerk's Guide to and 
 Self = Preparation for the Final Examination. 
 
 Containing a Complete Course of Study, with Books to Read, List of Statutes, 
 Cases, Test Questions, &c., and intended for the use of those Articled Clerks who 
 read by themselves. By Charles Thwaites, Solicitor. Seventh Edition, 8vo, 
 price 6j., cloth. 1906. 
 
 "His advice is practical and sensible : and if the course of study he recommends is intelligently 
 followed, the articled clerk will have laid in a store of legal knowledge -more than sufficient to carry 
 him through the Final Examination." — Solicitors' Journal. 
 
 Indermaur's Judicature Acts, 
 
 And the rules thereunder. Being a book of Questions and Answers intended 
 for the use of Law Students. By John Indermaur, Solicitor. In 8vo, price 6j., 
 cloth. 1875. 
 
STEVENS (5r= HAYNES, BELL YARD, TEMPLE BAR. 21 
 
 Indermaur's Guide to Bankruptcy, 
 
 Being a Complete Digest of the Law of Bankruptcy in the shape of Questions 
 and Answers, and comprising all Questions asked at the Solicitors' Final Examina- 
 tions in Bankruptcy since the Bankruptcy Act, 1883, and all important Decisions 
 since that Act. By John Indermahr, Solicitor, Author of " Principles of Com- 
 mon Law," &c. &c. Second Edition, in crown 8vo, price 5^. 6a'., cloth. 1887. 
 
 Indermaur's Law of Bills of 5ale, ' 
 
 For the use of Law Students and the Public. Embracing the Acts of 1878 and 
 1882. Part I.— Of Bills of Sale generally. Part II.— Of the Execution, Attesta- 
 tion, and Registration of Bills of Sale and satisfaction thereof. Part III. — Of the 
 Effects of Bills of Sale as against Creditors. Part IV. — Of Seizing under, and 
 Enforcing Bills of Sale. Appendix, Forms, Acts, &c. By John Indermaur, 
 Solicitor. In i2mo, price y. dd., cloth. 18S2. 
 
 Inderwick's Calendar of the Inner Temple 
 Records. 
 
 Edited by F. A. Inderwick, Q.C. Vol. I., 21 Hen. VII. (1505)— 45 Eliz. 
 (1603). Vol. II., James I. (1603) — Restoration (1660). Vol. III., 12 Charles II. 
 (1660) — 12 Anne (1714). Imperial 8vo. Roxburghe binding. 1896. 20^. per 
 vol, net. 
 
 Jones' Law of Salvage, 
 
 As administered in the High Court of Admiralty and the County Courts'; with the 
 Principal Authorities, English and American, brought down to the present time ; 
 and an Appendix, containing Statutes, Forms, Table of Fees, &c. By Edwyn 
 Jones, of Gray's Inn, Barrister-at-Law. In crown 8vo, price ioj. bd., cloth. 
 1870. 
 
 Joyce's Law and Practice of Injunctions. 
 
 Embracing all the subjects in which Courts of Equity and Common Law have 
 jurisdiction. By William Joyce, of Lincoln's Inn, Barrister-at-Law. In two 
 volumes, royal 8vo, price ^os., cloth. 1872. 
 
 Joyce's Doctrines and Principles of the 
 Law of Injunctions. 
 
 By WiLLlAii Joyce, of Linqoln's Inn, Barristev-at-Law. In one volume, royal 
 8vo, price 30;-., cloth. 1877. ' 
 
 Kay's Shipmasters and Seamen. 
 
 Their Appointment, Duties, Powers, Rights, Liabilities, and Remedies. By the 
 late Joseph Kay, Esq., M.A., Q.C. Second Edition. With a Supplement 
 comprising the Merchant Shipping Act, 1894, the Rules ofCourtmade thereunder, 
 and the (proposed) Regulations for Preventing Collisions at Sea. By the Hon: 
 J. W. Mansfield, M.A., and G. W. Duncan, Esq., B.A., of the Inner Temple, 
 Barristers-at-Law. In royal 8vo, price 46^., cloth. 1895. 
 
 " It has had practical and expert knowledge brought to bear upon it, while the case law is 
 brought down to a very late date. Considerable improvement has been made in the index." — 
 Law Times. 
 
22 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Kay's Merchant 5hipping Act, 1894. 
 
 With the Rules of Court made thereunder. Being a Supplement to KAY'S LAW 
 RELATING TO SHIPMASTERS AND SEAMEN. To which are added the 
 (proposed) Regulations for Preventing Collisions at Sea. With Notes. By Hon. 
 J. W. Mansfield, M.A., and G. W. Duncan, B.A., of the Inner Temple, Barristers- 
 at-Law. In royal Svo, price los. dd., cloth. 1895. 
 
 Kelyng's (5ir John) Crown Cases. 
 
 Kklyng's (Sir J.) Reports of Divers Cases in Pleas of the Crown in the Reign of 
 King Charles II., with Directions to Justices of the Peace, and others; to which are 
 added. Three Modern Cases, viz., Armstrong and Lisle, the King an3 Plummer, 
 the Queen and Mawgridge. Third Edition, containing several additional Cases 
 never before printed, together with a Treatise upon the Law and Proceedings 
 in Cases of High Treason, first published in 1793. The whole carefully revised 
 and edited by Richard Loveland Loveland, of the Inner Temple, Barrister- 
 at-Law. In Svo, price 4/. 4;., calf antique. 1873. 
 
 "We look upon this volume as one of the niost important and valuable of the unique reprints of 
 Messrs. Stevens and Haynes. Little do we know of the mines of legal wealth that lie buried m the 
 old law books. But a careful examination, either of the reports or of the treatise embodied in the 
 volume now before us, will give the reader some idea of the good service rendered by Messrs. Stevens 
 and Haynes to the profession, . . . Should occasion arise, the Crown prosecutor, as well as counsel 
 for the prisoner, will find in this volume a complete vade ntecuni of the law of high treason and 
 proceedings in relation thereto." — Canada Laiv yonrnal. 
 
 Kelynge's (W.) Reports. 
 
 Kelynge's (William) Reports of Cases in Chancery, the King's Bench, &c., from 
 the 3rd to the 9th year of his late Majesty King George II., during which time 
 Lord King was Chancellor, and the Lords Raymond and Hardwicke were Chief 
 Justices of England. To which are added, seventy New Cases not in the First 
 Edition. Third Edition. In one handsome volume, Svo, price 4/. 4^., calf antique. 
 1873- 
 
 Lloyd's Law of Compensation for Lands, 
 Houses, &c. 
 
 Under the Lands Clauses Consolidation Acts, the Railways Clauses Consolidation 
 Acts, the Public Health Act, 1875, the Housing of the Working Classes Act, 1890, 
 the Metropolitan Local Management Act, and other Acts, with a full collection of 
 Forms and Precedents. By Eyre Lloyd, of the Inner Temple, Barrister-at-Law. 
 Sixth Edition. By W. J. Brooks, of the Inner Temple, Barrister-at-Law. In 
 Svo, price 2li., cloth. 1895. 
 
 Lloyd's Succession Laws of Christian 
 Countries. 
 
 With special reference lo the Law of Primogeniture as it exists in England. By 
 Eyre Lloyd, B.A., Barrister-at-Law. In 8vo, price 7^., cloth. 1877. 
 
 Marcy's Epitome of Conveyancing 
 Statutes, 
 
 Extending from 13 Edw. I. to the End of 55 and 56 Victorias. Fifth Edition, with 
 Short Notes. By George Nichols Marcv, of Lincoln's Inn, Barrister-at-Law. 
 In crown Svo, price \2s. 6d., cloth. 1893. 
 
STEVENS &' HAYNES, BELl. YARD, TEMPLE BAR. 23 
 
 Martin's Law of Maintenance, Desertion, 
 and Affiliation. 
 
 With the Acts for the Custody and Protection of Children. Third Edition. 
 By Temple Chevalier Martin, late Chief Clerk of the Lambeth Police Court, 
 Editor of the " Magisterial and Police Guide," &c., and George Temple Martin, 
 M.A., of Lincoln's Inn, Barrister-at-Law. In 8vo, price gj., cloth. 1910. 
 
 Mathews' Guide to Law of Wills. 
 
 By A. G. Mathews, of the Inner Temple, Barrister-at-Law. In i2mo, 
 price 7 J. dd. 1908. 
 
 _'*Mr.^ Mathews has produced an excellent and handy volume on a subject bristling with 
 difificulties. . . . The chapters Revocation, etc., gifts to a class cpnversion, satisfaction and 
 ademption are very well written, while his chapters on Residue and Legacies and Annuities could 
 not be more tersely or more clearly set forth. . . . There is a scope for a short work of this kind on 
 this subject, and doubtless Mr. Mathews* book will find its way into the hands of many Law 
 Students." — Juridical Review. 
 
 May's Statutes of Elizabeth against 
 Fraudulent Conveyances. 
 
 The Bills of Sale Acts, 1878 and 1882, and the Law of Voluntary Dispositions of 
 Property. By the late H. W. May, B.A. (Ch. Ch. Oxford). Third Edition, 
 thoroughly revised and enlarged, by William Douglas Edwards, LL.B., of 
 Lincoln's Inn, Barrister-at-Law; Author of the "Compendium of the Law of 
 Property in Land," &c. In royal 8vo, price los. net, cloth. 1908. 
 
 Mayne's Treatise on the Law of Damages. 
 
 Eighth Edition, by His Honour Judge Lumley Smith, K.C. In 8vo, price 28j., 
 cloth. 1909. 
 
 "It would be superfluous to say more of this notable book than that this is the seventh edition, 
 and that its original author and his co-editor, Judge Lumley Smith of the City of London Court, 
 have written the preface to this issue of it, nearly fifty years after the issue of the first. The last 
 edition was in 1B99, and the present, carefully revised and corrected, brings up to date all the 
 English and Irish decisions bearing on the Law of Damages." — Saturday Review. 
 
 Mayne's Treatise on Hindu Law and 
 Usage. 
 
 By John D. Mayne, of the Inner Temple, Barrister-at-Law, Author of "A 
 Treatise on Damages," &c. Seventh Edition, 8vo, 30J. net. 1906. 
 
 Moore's History of the Foreshore and the 
 Law relating thereto. 
 
 With a hitherto unpublished Treatise by Lord Hale, Lord Hale's " De Jure Maris," 
 and the Third Edition of Hall's Essay on the Rights of the Crown in the Sea-shore, 
 with Notes, and an Appendix relating to Fisheries. By Stuart A. Moore, 
 F.S.A., of the Inner Temple, Barrister-at-Law. In one volume, medium 8vo, price 
 38J., cloth ; or in half-roxburgh, 42J. 1888. 
 " Mr. Moore has written a book of great_ importance which should mark an epoch in the history 
 
 of the rights of the Crown and the subject in the litus maris, or foreshore of the kingdom 
 
 The Profession, not to say the general public, owe the learned author a deefj debt of gratitude for 
 providing ready to hand such a wealth of materials for founding and building up arguments. 
 Mr. Stuart Moore has written a work which must, unless his contentions are utterly unfounded, at 
 once become the standard text- book on the law of the Sea-shore. " — Law Times. 
 
 Moore's History and Law of Fisheries. 
 
 By Stuart A. Moore, F.S.A., and Hubert Stuart Moore, of the Iimer 
 Temple, Barristers-at-Law. In one volume, royal 8vo, price 2\s. 1903. 
 
24 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 Moore's History and Law of Fisheries — continued. 
 
 Contents : Part I. — Introduction. — Chapter I. Of the evidence as to fisheries 
 in the Domesday Book ; II. Of putting rivers in defence ; III. Of presump- 
 tions with regard to fisheries ; IV. Of the presumption of ownership of the soil 
 by the owner of the fishery; V. Of the origin and subdivision of fisheries; VI. 
 Of the difterent Icind of fisheries ; VII. Of the various descriptions of fisheries in 
 ancient records ; VIII. Incorporeal fisheries in tidal water ; IX. Incorporeal 
 fisheries in non-tidal water ; X. Of fishery appurtenant to or parcel of a manor ; 
 XI.. Of fishery appurtenant to a particular tenement; XII. Copyhold fisheries. 
 XIII. Of fisheriesiri gross ; XIV. Of divided fisheries and the Royal draught; XV. 
 Of fisheries in ponds and lakes and the ownership of the soil ; XVI. Of fisheries in 
 canals and artificial watercourses ; XVII. Of fishery in relation to navigation ; 
 XVIII. Of fishing paths ; XVX. Of the public right of fishery and its limits ; XX. 
 Of boundaries of fisheries ; XXL Of change in the course of a river, and its effect 
 upon the ownership of the fishery therein ; XXII, Of grants of fisheries ; XXIII. 
 Of evidence of title to fisheries ; XXIV. Of evidence of possession of fisheries in 
 proving title ; XXV. Of the effect of user by the public and others adverse to 
 the owner of a fishery ; XXVI. Of the powers of an owner of a fishery to lease and 
 license, &c. ; XXVII. Of proceedings for the protection of fisheries. Part II. — 
 Statute Law Rki-ATiNG to Fisheries. — I. .Summary of legislation relating to fish 
 and fisheries; II. Regulation of sea fisheries ; III. Registration and discipline of sea 
 fishing boats ; IV. Statutory provisions relating to fisheries geinerally ; V. Statutory 
 provisions relating to floating fish ; VI. Statutory provisions relating to shell fish ; 
 VII. Regulation of salmon and fresh-water fisheries ; VIII. Powers of Boards of 
 Conservators; IX. Water bailiffs; X. Statutory provisions as to the capture and 
 destruction of salmon and fresh-water fish ; XI. Close seasons ; XII. Licenses ; 
 XIII. Sale and exportation of fish. Appendices : Statutes with notes relating 
 thereto ; Sea and Salmon Acts ; List of Sea and Salmon Fishery Districts ; Orders in 
 Cotlncil as to registration of sea fishing boats ; List of fisheries referred to in 
 Domesday Book ; List of fisheries referred to in notes of ancient records in the 
 Author's collection ; Index. 
 
 Morgan. — A Practical Analysis of the 
 Public Trustee Act, 1906. 
 
 By P. W. Morgan, Barrister-at-Law. In crown 8vo, li. dd. net. 
 
 Norton =Kyshe's Law and Privileges 
 relating to the Attorney = General and 
 5olicitor=Qeneral of England. 
 
 With a History from the Earliest Periods, and a Series of King's Attorneys and 
 Attorneys and Solicitors-General from the reign of Henry III. to the 6oth of 
 Victoria. By J. W.; Norton-Kyshe, of Lincoln's Inn, Barristef-at-Law. . In 
 Svo, price los. dd. net. 1897. 
 
 O'Malley & Hardcastle's Reports of the 
 Decisions of the Judges for the Trial of 
 Election Petitions, in England and Ireland. 
 
 Pursuant to the Parliamentary Elections Act, 1868. By Edward Loughlin 
 O'Malley and Henry Hardcastle. Vol. IV. Part III. and all after are 
 Edited by J. S. Sandars and A. P. P. Keep, Barristers-at-Law. Vols. I., II., III., 
 IV., V. and Vol. VL, Parts I. and II., price 7/. igj. (>d. 
 
 Peile's Law and Practice of Discovery in 
 the Supreme Court of Justice. 
 
 With an Appendix of Forms, Orders, &c., and an Addenda giving the Alterations 
 under the New Rules of Practice. By Clarence J. Peile, of the Inner Temple, 
 Barrister-at-Law. In Svo, price I 2j., cloth. 1883. 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 26 
 
 Pemberton's Judgments, Orders, and 
 Practice of the Supreme Court, 
 
 Chiefly in respect to actions assigned to the Chancery Division. By LoFTUS 
 Leigh Pemberton, one of the registrars of the Supreme Court of Judicature ; and 
 Author of " The Practice in Equity by way of Revivor and Supplement." Fourth 
 Edition, in royal 8vo, price 40^., cloth. 1889. 
 
 Pemberton's Practice of Equity by Way 
 of Revivor and Supplement. 
 
 With Forms of Orders and Appendix of Bills. By Loftus Leigh Pemberton, 
 of the Chancery Registrar's Office. In royal 8vo, price los. dd., cloth. 1867. 
 
 Phillipson. Two Studies in International 
 Law. 
 
 By Coleman Phillipson, M.A., Barrister-at-Law. 5^. net. 
 
 Phillipson. The Effect of War on Con= 
 tracts. 
 
 By Coleman Phillipson, M.A., LL.D., Barrister-at-Law. 3^. (id. net. 
 
 Phipson's Law of Evidence. 
 
 By S. L. Phipson, M.A., of the Inner Temple, Barrister-at-Law. Fifth Edition, 
 in demy 8vo, price iSj., cloth. 1911. 
 
 " This valuable book of reference has been brought up to date by the inclusion of the Criminal 
 Evidence Act, 1898, and the changes wrought by it in the Law of Evidence." — Cambridge Review. 
 
 " Mr. Phipson's is certainly one ofthe most useful works on an important and difficult subject. That 
 it is appreciated by the profession is obvious, or it would not in ten years have reached a third 
 edition." — Oxford Magazine, 
 
 " . . . . The work is a happy medium between a book of the type of Stephen's Digest, and the 
 large treatises upon the subject, and owing to its excellent arrangement is one that is well suited 
 both to practitioners and students." — Law Times. 
 
 Phipson's Manual of the Law of Evidence. 
 
 Being an abridgment of the larger treatise. By S. L. Phipson, M.A., of the 
 Inner Temple, Barrister-at-Law. In crown 8vo, js. 6d. 1908. 
 
 Porter's Laws of Insurance: Fire, Life, 
 Accident, and Guarantee. 
 
 Embodying Cases in the English, Scotch, Irish, American, and Canadian Courts. 
 By James Biggs Porter, of the Inner Temple, Barrister-at-Law ; assisted by 
 W. Feilden Craies, M.A. Fifth Edition, in 8vo, 21s. 1908. 
 
 " The successive editions of this book which have been called for shew that the profession 
 appreciate the advantage of having the law as to the various forms of assurance, except Marine 
 Insurance, which forms a branch quite by itself, collected in one volume. . . . The work is clearly 
 written, and this edition has been brought up to date by the inclusion of a large number of recent 
 cases." — Solicitors' Journal. 
 
 Porter. A Manual of the Law of Principal 
 and Agent. 
 
 By James Biggs Porter, Barrister-at-Law. In 8vo, price \os. 6a?., cloth. 1905. 
 
26 
 
 STEVENS <&- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Renton's Law and Practice in Lunacy. 
 
 With the Lunacy Acts, 1890-91 (Consolidated and Annotated) ; the Rules of 
 Lunacy Commissioners ; the Idiots Act, 1886; the Vacating of Seats Act, 1886; 
 the Rules in Lunacy; the Lancashire County (Asylums and other powers) Act, 1891 ; 
 the Inebriates Act, 1879 and 1888 (Consolidated and Annotated) ; the Criminal 
 Lunacy Acts, 1800-1884; and a Collection of Forms, Precedents, &c. By A. 
 Wood Renton, Barrister-at-Law. In one Volume, royal 8vo, price 50J. net. 1897. 
 
 Ringwood's Principles of Bankruptcy. 
 
 Embodying the Bankruptcy Acts, 1883 and 1890, and the Leading Cases thereon ; 
 Part of the Debtors Act, 1869; The Bankruptcy Appeals (County Courts) Act, 
 1884; The Bankruptcy (Discharge and Closure) Act, 1887; The Preferential Pay- 
 nients in Bankruptcy Acts, 1888 and 1897 : with an Appendix containing the 
 Schedules to the Bankruptcy Act, 1883 j The Bankruptcy Rules, 1886, 1890, and 
 1891 ; the Rules as to the Committal of Judgment Debtors, and as to Administration 
 Orders ; Regulations Issued by the Bankruptcy Judge ; a Scale of Costs, Fees, and 
 Percentages ; The Bills of Sale Acts, 1878, 1882, 1890, and 1891, and the Rules 
 thereunder ; The Deeds of Arrangement Act, 1887 ; and the Rules thereunder. 
 By Richard Ringwood, M.A., of the Middle Temple, Barrister-at-Law ; late 
 Scholar of Trinity College, Dublin. Tenth Edition, in Svo, price lOi. 6if., cloth, 
 1908. 
 
 "We welcome a new edition of this fitcellent student's book. We have written favourably of 
 it in reviewing previous editions, and every ^ood word we have written we would now reiterate 
 and perhaps even more so. . . . In conclusion, we congratulate Mr. Ringwood on this edition, 
 and have no hesitation in saying that it is a capital student's book."— Zaw Students' youmal, 
 
 "This edition is a considerable improvement on the first, and although chiefly written for the 
 use of students, the work will be found useful to the practitioner." — Law Times, 
 
 " The author deals with the whole history of a bankruptcy from the initial act of bankruptcy 
 down to the discharge of the bankrupt, and a cursory perusal of his work gives the impression 
 that the book will prove useful to practitioners as well as to students. The appendix also contains 
 much matter that will be useful to practitioners, including the Schedules, the Bankruptcy Rules 
 of 1886, 1890 and i8gi, the Rules of the Supreme Court as to Bills of Sale, and various Acts of 
 Parliament bearing upon the subject. The Index is copious." — Accountants' Magazine. 
 
 Ring-wood's Outlines of the Law of Torts. 
 
 Prescribed as a Textbook by the Incorporated Law Society of Ireland. By 
 Richard Ringwood, M.A., of the Middle Temple, Barrister-at-Law; author 
 of "Principles of Bankruptcy," etc., and Lecturer on Common Law to the 
 Incorporated Law Society. Fourth Edition, in 8vo, price los. 6d.y cloth. 1906. 
 
 "We have always had a great liking for this work, and are very pleased to see by the appearance 
 of a new Editign that it is appreciated by students. We consider that for the ordinary student who 
 wants to take up a separate work on Torts, this is the best book he can read, for it is clear and 
 explanatory, and has good illustrative cases, and it is all contained in a very modest compass. 
 . . . This Edition appears to have been thoroughly revised, and is, we think, in many respects 
 improved." — Law Students' youmaL 
 
 " The work is one we well recommend to law students, and the able way in which it is written 
 reflects much credit upon the author." — La7v Times. 
 
 Ringwood's Outlines of the Law of Banking. 
 
 In crown lamo, price 5^., cloth. 1906. 
 "... The book is in a most convenient and portable form, and we can heartily commend the latest 
 production of this well-known writer to the attention of the business community." — Financial Times. 
 
 Rowlatt's Law of Principal and Surety. 
 
 By S. A. T. RowLATT, M.A., late Fellow of King's College, Cambridge; of the 
 Inner Temple, Barrister-at-Law. In Svo, price i6s, 1899. 
 
 "... Here will be found all the rights and liabilities of the surety, his defences, his releases, 
 the eflfect of bankruptcy, and so on ; and, as we said at the outset, the index forms a most 
 excellent and comprehensive guide to the text. . , . We can quite believe that this text-book will 
 take a respectable place among legal authorities." — Law Titties, 
 
 " He brings out fully in all its ramifications the nature of the law of guarantee."— 5"a/«7-rfa>' 
 Review, 
 
 "There are too many works on most branches of the English Law, and too many writers eager to 
 make books on almost every legal subject, however small. It is, therefore, a remarkable fact that 
 a subject so important as the Law of Sureties has been comparatively neglected, there being only 
 one recent work of repute devoted entirely to the subject. For this reason we welcome Mr, 
 Rowlatt's treatise, which has solid merits that ought to insure success. The book is a very good 
 one, and the author maybe congratulated on the successful accomplishment of a difficult task.'* 
 — Law Journal. 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 27 
 
 Salkowski's Institutes and History of 
 Roman Private Law. 
 
 With Catena of Texts. By Dr. Carl Salkowski, Professor of Laws, Konigsberg. 
 Translated and Edited by E. E. Whitfield, M.A. (Oxon.). In 8vo, price 32j., 
 cloth. 1886. >v i , 
 
 Salmond's Jurisprudence ; or, Theory of 
 the Law. 
 
 By John W. Salmond, M.A., LL.B., Barrister-at-Law ; author of "Essays in 
 Jurisprudence and Legal History." Third Edition. In demy 8vo, price I2J. 6d., 
 net, cloth. 1910. 
 
 Salmond's Essays in Jurisprudence and 
 Legal History. 
 
 By John W. Salmond, M.A., LL.B. (Lond.), a Barrister of the Supreme Court of 
 New Zealand. In crown 8vo, price 6s., cloth. 1891. 
 
 Salmond's Law of Torts. 
 
 A Treatise on the EnglishLawof Liability for Civil Injuries. By John W. Salmond, 
 M. A., LL.B., Barrister-at-Law. Third Edition. In 8vo, price 22j. 6(^. , cloth. 1912. 
 
 Savigny's Treatise on Obligations in 
 Roman Law. 
 
 By Archibald Bkown, M.A., Edin. and Oxon., and B.C.L. Oxon., of the 
 Middle Temple, Barrister-at-Law. In 8vo, 1872, price Ts. 6(1., cloth. 1872. 
 
 Scott's Abstract Drawing. 
 
 Containing Instructions on the Drawing of Abstracts of Title, and an Illustrative 
 Appendix. By C. E. Scott, Solicitor. In crown 8vo, price 4^. 6d., cloth. 1892. 
 
 " This little book is intended for the assistance of those who have the framing of abstracts of 
 title entrusted to their care. It contains a number of useful rules, and an illustrative appendix." — 
 Liaw Ti?nes. 
 
 " A handy book for all articled clerks." — Law Students' Journal. 
 
 " Solicitors who have articled clerks would save themselves much trouble if they furnished their 
 clerks with a copy of this little book before putting them on to draft an abstract of a heap of title 
 deeds."— Z.rt«/ Notes, 
 
 " The book ought to be perused by.all law students and articled clerks." — Red Tape. 
 
 Sealer's Law of Parliamentary Registra= 
 tion. 
 
 With an Appendix of Statutes and Full Index. By J. R. Seager, Registration 
 Agent. In crown 8vo, price ^s., cloth. 1881. 
 
 Short & Mellor's Practice on the Crown 
 Side of the Queen's Bench Division of Her 
 Majesty's High Court of Justice. 
 
 (Founded on Corner's Crown Office Practice), including Appeals from Inferior 
 Courts ; with Appendices of Rules and Forms. Second Edition. By F. H. Short, 
 Chief Clerk of the Crown Office, and Francis Hamilton Mellor, M.A., K.C. 
 In royal 8vo, price 30J., cloth. 1908. 
 
 Short's Crown Office Rules and Forms, 
 
 1886. 
 
 The Supreme Court of Judicature Acts and Rules of the Supreme Court, 1883, 
 relating to the Practice on the Crown side of the Queen's Bench Division ; including 
 Appeals from Inferior Courts, Tables of Court Fees, Scales of Costs ; together with 
 Notes, Cases, and a Full Index. By F. H. Short, Chief Clerk of the Crown 
 Office. In 8vo, price 12s., cloth. 1886. 
 
28 
 
 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR., 
 
 Short's Taxation of Costs in the Crown 
 Office. 
 
 Comprising a Collection of Bills of Costs in the Various Matters Taxable in that 
 Office, including Costs upon the Prosecution of Fraudulent Bankrupts, and on 
 Appeals from Inferior Courts ; together with a Table of Court Fees, and a Scale of 
 Costs usually allowed to Solicitors, on the Taxation of Costs on the Crown Side of 
 the Queen's Bench Division of the High Court of Justice. By Fredk. H., Short, 
 Chief Clerk in the Crown Office. In 8vo, price loj., cloth. 1879. 
 
 Shower's Cases in Parliament 
 
 Resolved and Adjudged upon Petitions and Writs of Error. Fourth Edition. 
 Containing additional cases not hitherto reported. Revised and Edited by 
 Richard Loveland Loveland, of the Inner Temple, Barrister- at-Law ; Editor 
 of "Kelyng's Crown Cases," and "Hall's Essay on the Rights of the Crown in 
 the Seashore." In 8vo, price 4/. 4^., best calf binding. 1876. 
 
 Simpson's Law and Practice relating to 
 Infants. 
 
 Third Edition. By E. J. Elgood, B. C. L. , M. A. , of Lincoln's Inn, Barrister-at-Law. 
 In Royal 8vo, 2\s. 1909. 
 
 Slater's Law of Arbitration and Awards. 
 
 With Appendix containing the Statutes relating to Arbitration, and a collection 
 of Forms and Index. Fourth Edition. By Joshua Slater, of Gray's Inn, 
 Barrister-at-Law. Crown 8vo, price 6s. dd., cloth. 1905. 
 
 Slater's Principles of Mercantile Law. 
 
 By Joshua Slater, of Gray's Inn, Barrister-at-Law. Third Edition. Crown 
 8vo, price 6^. dd., cloth. 1507. 
 
 Smith's Law and Practice in the Ecclesi= 
 astical Courts. 
 
 For the use of Students. By Eustace Smith, of the Inner Temple; author of 
 '* A Summary of Company Law" and '* A Summary of the Law and Practice in 
 Admiralty." Sixth Edition, in 8vo, price Sj., cloth. 1911. 
 
 " His object has been, as he tells us in his preface, to give the student and general reader a fair 
 outline cf the scope and extent of ecclesiastical law, of the principles on which it is founded, of the 
 Courts by which it is enforced, and the procedure by which these Courts are regulated. We think 
 the book well fulfils its object. Its value is much enhanced bj' a profuse citation of authorities for 
 the propositions contained in it." — Bar Exavtination Journal. 
 
 Smith's Law and Practice in Admiralty. 
 
 For the use of Students. By Eustace Smith, of the Inner Temple ; author of 
 *' A Summary of Company Law." Fourth Edition, in 8vo, price io.r. , cloth. 1892. 
 
 " The book is well arranged, and forms a good introduction to the subject." — Solicitors Journal. 
 
 " It is, however, in our opinion, a well and carefully written little work, and should be in the 
 hands of every student who is taking up Admiralty Law at the Final." — Laiu Students' Journal. 
 
 " Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. 
 The present work will doubtless be received with satisfaction equal to that with which his previous 
 ' Summary "has been met." — Oxford and Cambridge Underg^-aduates' Jour^ial. 
 
 Smith's Quarter Sessions Practice. 
 
 A Vade Mecum of General Vractice in Appellate and Civil Cases at Quarter 
 Sessions. By Frederick James Smith, of the Middle Temple, Barrister-at-Law, 
 and Recorder of Margate. In Royal 1 2mo, price 20j., cloth. 18S2. 
 
STEVENS <5r- HAYNES, BELL YARD, TEMPLE BAR. 29 
 
 Smith's Short Practical Company Forms. 
 
 By T. Eustace Smith, of the Inner Temple and Lincoln's Inn, Barrister-at-Law, 
 Author of " A Summary of the Law of Companies," etc., assisted by Roland E. 
 Vaughan Williams, of the Inner Temple, Barrister-at-Law. In 8vo, price 8i., 
 cloth. 1896. 
 
 " This collection of Company Forms shoald certainly prove of service to secretaries, directors, 
 and others interested in the practical working of companies. . . . The forms themselves are short 
 and to the point." — Law Times. 
 
 Smith's Summary of Joint Stock Com= 
 panics' Law under the Companies (Con= 
 solidation) Act, 1908. 
 
 By T. Eustace Smith, Barrister-at-Law. Eleventh Edition, in 8vo, price ^s. 6^., 
 cloth, igog. 
 
 "The author of this handbook tells us that when an articled student reading for the final 
 examination, he felt the want of such a work as that before us, wherein could be found the main 
 principles of a law relating to joint-stock companies . . . Law students may well read it ; for 
 Mr. Smith has very wisely been at the pains of giving his authority for all his statement* of the law 
 or of practice, as applied to joint-stock company business usually transacted in solicitors' chambers. 
 In fact, Mr. Smith has by his little book offered a fresh inducement to students to make themselves — 
 at all events, to some extent — acquainted with company law as a separate branch of study." — Law 
 Xim.es. 
 
 "These pages give, in the words of the Preface, ' as briefly and concisely as possible a general 
 view both of the principles and practice of the law aflfecting companies.' The work is excellently 
 printed, and authorities are cited ; but in no case is the very language of the statutes copied. The 
 plan is good, and shows both grasp and neatness, and, both amongst students and laymen, 
 Mr. Smith's book ought to meet a ready sale." — Law Jotimal. 
 
 Snell's Principles of Equity. 
 
 Intended for the use of Students and the Profession. By Edmund H. T. Snell 
 of the Middle Temple, Barrister-at-Law. Sixteenth Edition. By Archibald 
 Brown, M.A. Edin. and Oxon., and B. C.L. Oxon., of the Middle Temple, 
 Barrister-at-Law ; Author of "A New Law Dictionary," "An Analysis of Savigny 
 on Obligations," and the " Law 6f Fixtures. " In 8vo, price 2l.r., cloth. 1912. 
 
 South African Republic, 
 
 Cases decided in the High Court of the, during the Year 1893, as reported by 
 J. B. M. Hertzog, B.A., LL.D., (late) First Puisne Judge of the Orange Free 
 State, formerly an Advocate of the High Court of the South African Republic. 
 Translated by J. Woodford S. Leonard, B.A., LL.B., formerly an Advocate of 
 the High Court of the South African Republic, Advocate of the Supreme Court oi 
 the Transvaal Colony. And revised by the Hon. J. G. Kotze, K.C, late Chief 
 Justice of the South African Republic, subsequently Attorney-General of Rhodesia, 
 and now Judge President of the Eastern Districts' Court in the Cape Colony. In 
 royal 8vo, bound in half-calf, price 50J-. net ; postage \s. extra. 
 
 South African Republic, 
 
 The Official Reports of the High Court of, translated into English, with Index 
 and Table of Cases. By Walter S. Webber, and revised by the Hon. J. G. 
 Kotze, K.C, Late Chief Justice of the South African Republic, subsequently 
 Attorney-General of Rhodesia, and now Judge President of the Eastern Districts' 
 Court in the Cape Colony. Vol. I.— 1894. Vol. II.— 1895. Vol. III.— 1896. 
 Vol. IV. — 1897. Translated by the Hon. Mr. Justice Kotze. Vol. V.— 1898. 
 Vol. VI. — 1899. Translated by B. de KORTE. In royal Svo, bound in half-calf, 
 price 50J. net each ; postage ij-. extra. 
 
 Story's Commentaries on Equity Juris= 
 prudence. 
 
 Second English Edition, from the Twelfth American Edition. By W. E. Grigsby, 
 LL.D. (Lond.), D.C.L. (Oxon.), and of the Inner Temple, Barrister-at-Law. 
 In royal Svo, 1 100 pages, price 45^., cloth. 1892. 
 
 " It is high testimony to the reputation of Story, and to the editorship of Dr. Grigsby, that another 
 edition should have been called for. . . . The work has been rendered more perfect by additional 
 Indices." — Law Ti»ies. 
 
30 STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 Tarring' s Chapters on the Law relating 
 to the Colonies. 
 
 To which are appended Topical Indexes of Cases decided in the Privy Council on 
 Appeal from the Colonies, Channel Islands and the Isle of Man, and of Cases 
 relating to the Colonies decided in the English Courts otherwise than on Appeal from 
 the Colonies. By Charles James Tarring, M.A., sometime Judge of H.B.M.'s 
 Consular Court, Constantinople, and H.M.'s Consul ; late Chief Justice of Grenada, 
 W. Indies; Author of "British Consular Jurisdiction in the East," "A Turkish 
 Grammar," &c. Third Edition, much enlarged, in 8vo, price 2,1s., cloth. 1906. 
 
 Tarring's British Consular Jurisdiction in 
 the East. 
 
 With Topical Indices of Cases on Appeal from, and relating to. Consular Courts and 
 Consuls; also a Collection of Statutes concerning Consuls. By C. J. Tarring, 
 M.A., Chief Justice of Grenada. In 8vo, price 7^. bd., cloth. 1887. 
 
 Tarring's Analytical Tables of the Law of 
 Real Property. 
 
 Drawn up chiefly from Stephen's Blackstone, with Notes. By C. J. Tarring, of 
 the Inner Temple, Barrister-at-Law. In royal 8vo, price 5^., cloth. 1882. 
 
 "Great care and considerable skill have been shown in the compilation of these tables, which 
 will be found of much service to students of the Law of Real Property." — Laiv Times. 
 
 Taswell=Langmead's English Constitu= 
 tional History. 
 
 From the Teutonic Invasion to the Present Time. Designed as a Text-book for 
 Students and others. By T. P. Taswbll-Lakgmead, B.C. L., of Lincoln's Inn, 
 Barrister-at-Law, formerly Vinerian Scholar in the University and late Professor of 
 Constitutional Law and History, University College, London. Seventh Edition, 
 Revised throughout, with Notes. By Philip A. Ashworth, Barrister-at-Law ; 
 Translator of Gneist's " History of the English Constitution." In 8vo, price fjs., 
 cloth. 1911. 
 
 Thomas's Leading Statutes Summarised. 
 
 For the Use of Students. By Ernest C. Thomas, Eacon Scholar of the Hon. 
 Society of Gray's Inn, late Scholar of Trinity College, Oxford ; author of " Leading 
 Cases in Constitutional Law Briefly Stated." In one volume, 8vo, price 9^. , cloth. 1878. 
 
 Thomas's Leading Cases in Constitutional 
 Law. 
 
 Briefly Stated, with Introduction and Notes. By Ernest C. Thomas, Bacon 
 Scholar of the Hon. Society of Gray's Inn, late Scholar of Trinity College, Oxford. 
 Fourth Edition by C. L. Attenborough, of the Inner Temple, Barrister-at-Law. 
 In 8vo, enlarged, price 6^., cloth. 1908. 
 
 Thwaites's Articled Clerk's Guide to the 
 Intermediate Examination, 
 
 As it now exists on Stephen's Commentaries. Containing a complete Scheme of 
 Work, Notes and Test Questions on each Chapter : List of Statutes. Also a com- 
 plete Selected Digest of the whole of the Questions and Answers set at the 
 Examinations on those parts of " Stephen " now examined on, up to January, 
 1902. Intended for the use of all Articled Clerks who have not yet passed the 
 Intermediate Examination. Charles Thwaites, Solicitor. In 8vo, price los , 
 net, cloth. 1902. 
 
STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 31 
 
 Trial of Adelaide Bartlett for Murder. 
 
 Complete and Revised Report. Edited by Edward Beal, B.A., of the Middle 
 Temple, Barrister-at-Law. With a Preface by Sir Edward Clarke, K.C. In 8vo, 
 price las., cloth. 1886. 
 
 Van Leeuwen's Commentaries on the 
 Roman = Dutch Law. 
 
 Revised and Edited with Notes in Two Volumes by C. W. Decker, Advocate. 
 Translated from the original Dutch by J. G. K0Tz6, LL.B., of the Inner Temple, 
 Barrister-at-Law, and Chief Justice of the Transvaal. With Facsimile Portrait in 
 the Edition by DecIcer of 1780. In 2 Vols., royal 8vo, price 90J., cloth. 1887. 
 
 Waite's Questions on Equity. 
 
 For Students preparing for Examination. Founded on the Ninth Edition of Snell's 
 " Principles of Equity." By W. T. Waite, Barrister-at-Law, Holt Scholar of the 
 Honourable Society of Gray's Inn. In 8vo, price 2j., sewed. 1889. 
 
 Walker's Compendium of the Law re= 
 lating to Executors and Administrators. 
 
 With an Appendix of Statutes, Annotated by means of References to the Text. 
 By W. Gregory Walker, B.A., Barrister-at-Law, and Edgar J. Elgood, 
 B.C.L., M.A., Barrister-at-Law. Fourth Edition by E. J. Elgood, B.C.L., M.A, 
 In one volume, 8vo, price 2ij., cloth. 1905. 
 
 "We higlily approve of Mr. Walker's arrangement The Notes are full, and as far as we 
 
 have been able to ascertain, carefully- and accurately compiled We can commend it as 
 
 bearing on its face evidence of skilful and careful labour, and we anticipate that it will be found a 
 very acceptable substitute for the ponderous tomes of the much esteemed and valued Williams." — 
 Law Times. 
 
 " Mr. Walker is fortunate in his choice of a subject, and the power of treating it succinctly ; for 
 the ponderous tomes of Williams, however satisfactory as an authority, are necessarily inconvenient 
 
 for reference as well as expensive On the whole we are inclined to think the book a good 
 
 and useful one." — Lain youmal. 
 
 Walker's Partition Acts, 1868 & 1876. 
 
 A Manual of the Law of Partition and of Sale, in Lieu of Partition. With the 
 Decided Cases, and an Appendix containing Judgments and Orders. By W. 
 Gregory Walker, B.A., of Lincoln's Inn, Barrister-at-Law. Second Edition, 
 in 8vo, price 8^., cloth. 1882. 
 
 Walker & Elgfood's Administration of 
 Deceased Persons by the Chancery Division 
 of the High Court of Justice. 
 
 With an Addenda giving the alterations effected by the New Rules of 1883, and an 
 Appendix of Orders and Forms, Annotated by References to the Text. By W. 
 Gregory Walker and Edgar J. Elgood, of Lincoln's Inn, Barristers-at-Law. 
 In 8vo, price 15^., cloth. 1883. 
 
 Wertheimer's Law relating to Clubs. 
 
 By the late JOHN Wertheimer, Barrister-at-Law. Third Edition, by A. W. 
 Chaster, Barrister-at-Law. In crown 8vo, price 7J. 6*/., cloth. 1903. 
 
 " A convenient handbookj drawn up with great judgment and perspicuity." — Morning Past. 
 " Both useful and interesting to those interested in club management." — Law Titnes. 
 "This is a very neat little book on an interesting subject. The law is accurately and well 
 expressed."— .iflw Journal. 
 
 Westbury's (Lord) Decisions in the 
 European Arbitration. 
 
 Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. Part I., 
 price 7 J. 6a?., sewed. 
 
32 STEVENS <&• HAYNES, BELL YARD, TEMPLE BAR. 
 
 Whiteford's Law relating to Charities, 
 
 Especially with reference to the validity and construction of Charitable Bequests and 
 Conveyances. By Ferdinand M. Whitbford, of Lincoln's Inn, Barrister-at- 
 Law. In 8vo, price 6j., cloth. 
 
 Whiteley's Licensing Acts. 
 
 Fourth Edition. A Complete Treatise on the Licensing (Consolidation) Act, 1910 ; 
 Part II. of the Finance (.1909-1910) Act, 1910 ; and other relevant Acts fully 
 explained with Notes. By George Cecil Whitbley, M.A. (Cantab.), of the 
 Middle Temple, Barrister-at-Law, Editor of the Third Edition of "Whiteley's 
 Licensing Laws," Author of "The Licensing Act, J902," "The Licensing Act, 
 1904," and "The New Duties on Liquor Licences under the Finance (1909-1910) 
 Act, 1910," and Sidney H. Lamb, of the Middle Temple, Barrister-at-Law. In 
 demy 8vo, price \2s. td. 
 
 Whiteley. Tlie New Duties on Liquor 
 Licences in England and Wales under the 
 Finance (1909=1910) Act. 
 
 By George Cecil Whiteley, M.A. Cantab., of the Middle Temple, Barrister- 
 at-Law, Editor of the Third Edition of "Whiteley's Licensing Laws," and Author 
 of " The Licensing Act, 1902," and " The Licensing Act, 1904 — 1910." Price5f.net. 
 
 Williams' Petition in Chancery and 
 Lunacy. 
 
 Including the Settled Estates Act, Lands Clauses Act, Trustee Act, Winding-up 
 Petitions, Petitions Relating to Solicilurs, Infants, etc., etc. With an Appendix of 
 Forms and Precedents. By Sydney E. Williams, Barrister-at-Law. In one 
 volume, 8vo, price i8.f., cloth. 1880. 
 
 Williams' Epitome of Railway Law. 
 
 Being, Part I. — The Carriage of Goods. Part II. — The Carriage of 
 Passengers. Part III. — Railways and the Public. By E. E. G. Williams, 
 of the Inner Temple, and South Eastern Circuit, Barrister-at-Law. In royal l2mo, 
 price 5J. net. 1912. 
 
 Willis's Negotiable Securities. 
 
 Contained in a Course of Six Lectures. Delivered by William Willis, Esq., K.C., 
 at the request of the Council of Legal Education, Third Edition, by J. Hurst, 
 Barrister-at-Law, of the Inner Temple, in 8vo, price 7j. 6^., cloth. 1912. 
 
 " No one can fail to benefit by a careful perusal of this volume." — Irish Law Tintei. 
 
 " We heartily commend them, not only to the student, but to everybody — lawyer and commercial 
 man alike." — The Accorintant. 
 
 " Mr. Willis is an authority second to none on the subject, and in these lectures he summarized 
 for the benefit not only of his confreres, but of the lay public the knowledge he has gained through 
 close S^tudy and lengthy experience." 
 
 Willis's Law of Contract of Sale. 
 
 Contained in a Course of Six Lectures. Delivered by William Willis, one of His 
 Majesty's Counsel. At the request of the Council of Legal Education. In 8vo, 
 price Is. dd., cloth. 1902. 
 
 Wilshere's Analysis of Taswell=Lang= 
 mead's Constitutional History. 
 
 By A. M. Wilshere, LL. B., Barrister-at-Law, of Gray's Inn. In crown Svo^ 
 price3j.net. 1911. 
 
 BRADBURY, AGNEW & CO., LTD., PRINTERS, LONDON AND TONBRIDGE. 
 
STEVENS AND HAYNBS' LAW PUBLICATIONS. 
 
 Tldrd Edition, in 8vo, price 28s. cloth, 
 
 THE LAW ^RELATING ^ TO THE ADMINISTRATION 
 
 OF CHARITIES under tlie Charitable Trusts Act, 1853-1894, and Local Government 
 Act, 1894. By Thomas BoujicHiEn-CHiLOOTT, of the Middle Temple, Barriater-at-Law. 
 
 Sixth Edition, price 36s. cloth. 1911. 
 HANSON'S DEATH DUTIES: Being the Sixth Edition of 
 THE PROBATE, LEGACY, AND SUCCESSION DUTIES ACTS; Comprising 
 
 the Finance Acts, 1894, 1896, 1898, 1900, 1907, 1909-10, with Rules ; Revenue Act, 
 1911 ; Legacy Duty Act, 1796 ; Stamp Act, 1815 ; Succession Duty Act, 1853 ; 
 Customs and Inland Revenue Act, 1880 and 1881 ; with Notes to the various Acts. 
 By F. H. L. Ereington, M.A., Ban-ister-at-law. 
 
 Fourth Edition, in Svo, price 10s. 6d. cloth, 
 
 OUTLINES OF THE LAW OF TORTS. By r.ohard ring- 
 
 WOOD, M.A., of the Middle Temple, Barrister-at-Law. 
 
 Third Edition, crown 8vo, price 6s. 6d. cloth, 
 
 THE PRINCIPLES OF MERCANTILE LAW. By Joshua 
 
 Slatbb, Barrister-at-Law. 
 
 Third Edition, in Svo, price 16 s. cloth, 
 
 THE LAW OF THE LIMITATIONS OF ACTIONS. 
 
 Together with some observations on the Equitable Doctrines of Laches (or delay) 
 and Acquiescence. By the late Hbnhy Thomas BANNrsfe. Third Edition, by 
 Akohibald Bkown, of the Middle Temple, Barrister-at-Law. 
 
 Fourth Edition, in Svo, price 20s. cloth, 
 
 A COMPENDIUM OF THE LAW OF PROPERTY IN 
 
 LAND. For the use of Students and the Profession. Fourth Edition, with Addenda, 
 giving the Land Transfer Act, 1897, with references to the Text. By William 
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 [See Catalogue at end of this Volume,! 
 
IW' 
 
 
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