M dnrrtpll IGatu irlinnl ICtbrary marsliaU lEqutta (Unllerttmt Qltft of IE. 31. MarsljaU. Si.ffi. 1. 1B94 CORNELL UNIVERSITY LIBRARY 504 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/cu31924085501504 FORMS OF DECREES, JUDGMENTS, AND ORDERS; PRACTICAL NOTES. BY THE LATE HON. SIR H. W. SETON, SOUEIIMB OKB OF THE JUDGES OF IHS SCFBEME COURT OF CALCUTTA. FIRST AMERICAN FROM THE FOURTH ENGLISH EDITION, By FKANKUN FISKE HEARD. BOSTON: LITTLE, BROWN, AND COMPANY. 1884. Copyright, 1884, Bt Franklin Fiske Heaed. UuivEEsm Peess: John Wilson and Son, Cambridge. PREFACE. The First Edition of "■ Seton on Decrees " was published in 1830 ; the Second in 1854 ; the Third in 1862 ; and the First Volume of the Fourth Edition in 1877, and the First and Second Parts of the Second Volume in 1879. Nothing need be said as to the value of " Seton," which is one of settled authority. It is the locus classicus upon the subject. Of the Fourth Edition "The Law Journal" said: " It has scarcely ever been our fortune to see a more complete law book than this. Extensive in sphere, and exhaustive in treatise, comprehensive in matter, yet apposite in details, it presents a^ the features of an excellent Work." The Decrees are accompanied with Notes in which the rules of Law and Equity are stated in short and intelligent propositions and are confirmed by references to the best authorities ; in the judicial language of Mr. Justice Denman, the Notes " contain an admirable summary of all the cases on the subject." In the Preface to the Fourth Edition it is said : — " Independently of Legislative changes, the period since the publica- tion of the last Edition also has been one of unusual activity in all our Courts, thus rendering the task of arranging and selecting from the ever- accumulating mass of case and statutory law one of much responsibility. " The Notes have been thoroughly revised and to a great extent rewritten, and the Editors have endeavored, while retaining the valuable mass of information contained in former Editions, to render it more easily available, by means of a more pei-fect classification and arrangement. IV PREFACE. " It will be understood that the Notes, though no cases of importance . have been intentionally omitted from them, are designed as guides and finger-posts towards ascertaining the law oil each subject rather than as a complete and exhaustive summary of the authorities. With this object in view, the most approved text-books have been freely referred to,' and the plan has generally been adopted of giving prominence, by prior citation, to the more recent decisions, especially to those in which the earlier cases bearing upon the point have been cited, explained, or observed upon. " The Editors have spared no pains to maintain the reputation of ' Seton ' as a standard epitome of Equitable jurisdiction and practice as illustrated by the Decrees and Orders of the Court." Recent statutes in some of the United States enable the Courts of Common Law to deal with equitable rights and to give relief upon equitable grounds ; the Chancery and the Common Law Courts may, in many instances, exercise a con- current jurisdiction; but they cannot, unless by express statutory enactment, proceed upon novel principles, but must proceed according to settled principles and according to the order and practice of Courts of Equity. The true construction of the modern statutes is, in the ab- sence of express provisions, that they confer no new rights ; they only confirm the rights which previously were to be found existing in the Courts either of Law or of Equity ; if they did more, they would alter the rights of parties, whereas in truth they only change the procedure. But it may be doubted whether in carrying into effect the object for which they were <|p.acted, " the better administration of justice," they do not interfere with and alter rights. The Forms are adapted to either the old or new method of Procedure. The practitioner, by attentively considering the principles of Equity Jurisprudence and the operative words of the Statutes and Rules which obtain in his jurisdiction, can readily adapt' the Forms given to the case required. The Forms of Decrees are useful with a view to framing Bills ; the Prayer of the Bill being that part upon which the frame of it principally depends, and the Decree being obviously the best guide to the Prayer. The great utility of consulting 1 The law on many subjects has been so fully and exhaustively dealt with by Text-Writers of eminence, as to leave no independent field either in supple- menting or summarizing the results of their labors. PREFACE. V them, and the advantages of adhering to the settled and well understood forms and lang-uage of Decrees, have been repeat- edly adverted to, judicially. The Present Edition is printed from the Fourth English. By excluding those portions which are not strictly applicable to American Equity Jurisprudence, the Editor has been able to bring the Work within the compass of a single volume. The List of " Equity Judges from 1660 " has been revised and brought down to date. The cases decided to date have also been noted. Boston, June, 1884. CONTENTS. INTRODUCTORY. Pagx Of Deckees, JudghJents, and Orders Generally .... 1 PART I. FRAME AND USUAL DIRECTIONS. CHAPTER I. Frame' of Decrees, Judgments, and Orders 5 CHAPTER II. Proceedings in Chambers 19 CHAPTER III. Usual Directions 21 PART II. SUMMARY AND ANCILLARY RELIEF. CHAPTER IV. Discovery and Production 29 CHAPTER V. Injunctions 61 Vm CONTENTS. CHAPTER VI Page Ne Exeat Kegxo 172 CHAPTER Vn. Consolidation 175 CHAPTER Vin. Prohibition of Pboceedings in Inferior Courts .... 178 CHAPTER IX. Patents 180 CHAPTER X. Interpleader 190 CHAPTER XI. Issues 200 CHAPTER Xn. Arbitrations 208 CHAPTER Xm. Receivers 215 PART III. ORDERS RELATING TO PARTICULAR PERSONS. CHAPTER XIV. Private Trustees 251 CHAPTER XV. Trustees of Charities . 284 CONTENTS. ix CHAPTER XVI. Page Solicitors . , , 314 CHAPTER XVn. Mahkied Women 335 CHAPTER XVin. Infants 390 PART IV. GENERAL SUBJECTS OP RELIEF. CHAPTER XIX. Account 431 CHAPTER XX. Mortgages 458 CHAPTER XXI. SuRETrsHip 595 CHAPTER XXn. Partnership 610 CHAPTER XXni. Specific Performance 644 CHAPTER XXIV. Specific Relief 701 X CONTENTS. PART V. RECTIFYING AND COMPLETING PROCEEDINGS, CHAPTER XXV. Page Change and Representation of Parties 767 CHAPTER XXVI. Consent and Compromise 773 CHAPTER XXVn. Discontinuance and Dismissal 776 CHAPTER XXVHI. Passing, Entering, Adding to, and Enrolling Decrees, Judg- ments, and Orders 782 CHAPTER XXIX. Execution and Contempt 788 INDEX 819 EQUITY JUDGES FROM 1660. HOtDERS OF THE GREAT SEAL. 1660 June 1 L.C. 1667 Aug. 31 L.K. 1672 Nov. 17 L.C. 1673 Nov. 9 L.K. 1675 Dec. 19 L.C. 1682 Dec. 20 L.K. 1685 Sept. 28 L.C. 1689 Mar. 4 L. Commrs. 1690 May 14. L. Commrs. 1693 Mar. 23 L.K. 1697 April 22 L.C. 1700 AprU27 L. Commrs. May 21 L.K. 1705 Oct. 11 L.K. 1707 May 4 L.C. 1710 Sept. 26 L. CoixmirS' _ Oct. 19 L.K. 1713 April 7 L.C. 1714 Sept. 21 L.C. 1718 April 18 L. Commrs. — May 12 L.C. 1725 Jan. 7 L. Commrs. _ June 1 L.C. 1733 Nov. 29 L.C. 1737 Feb. 21 L.C. Edward, Lord Hyde, afterwards Earl of Clarendon. Sir Orlando Bridgman, Bart. Anthony, E. of Shaftesbury. Sir Heneage Finch, aft. Lord Finch. The same, aft. E. of Nottingham. Sir Francis North, aft. Lord Guilford. George, Lord Jeffreys. Sir J. Maynard, K.A.S., Anthony Keck, William Rawlinson, S.L. Sir John Trevor, Sir W. Kawlinson, Sir George Hutchins. Sir John Somers. John, Lord Somers. Sir John Holt, C.J. , Sir George Treby, C.J., Sir Edward Ward, C.B. Sir Nathan Wright, K.S. William Cowper, Q.C. William, Lord Cowper. Sir Thomas Trevor, C.J., Tracy, J., Scrope, B. of Exch. Scotland. Sir Simon Harcourt, aft. Ld. Harcourt. S., Lord Harcourt, aft. Visct. Harcourt. W., Lord Cowper, aft. E. Cowper. Tracy, J., Pratt, J., Montague, B. Thos., Ld. Parker, aft. E. of Mac- clesfield. Sir J. Jekyll, M.R., Sir JefEery Gilbert, B., Sir Robert Raymond, C.J. Peter, Lord King. Charles, Lord Talbot. Philip, Lord, aft. E. of Hardwicke. 1757 June 30 L.K. 1761 Jan. 16 L.C. 1766 July 30 L.C. 1770 Jan. 17 L.C. — Jan. 21 L. Commrs. 1771 Jan. 23 L.C. 1778 June 3 L.C. 1783 April 9 L. Commrs. ^ Dec. 23 L.C. 1792 June 15 L. Commrs. Xll EQUITY JUDGES FROM 1660. 1756 Nov. 19 L. Commrs. Sir J. Willes, C.J., Smythe, B., WUmot, J. Sir Robert Henley, aft. Lord Henley. The same, aft. E. of Northington. Charles, Lord Camden, aft. E. Camden. Hon. Charles Yorke. Smythe, B., Aston, J., Hon. H. Bathurst, J. Hon. H. Lord Apsley, aft. E. Bathurst, Edward, Lord Thuriow. Alex., Ld. Loughborough, C.J., Ash- hurst, J., Hotham, B. Edward, Lord Thm-low. Sir J. Eyre, C.B., Ashhurst, J., Wil- son, J. 1793 Jan. 28 L.C. A., Ld. Loughborough, aft. E. of Kosslyn. John, Lord Eldon. Thomas, Lord Erskine. John, Lord Eldon, aft. E. of Eldon. John Singleton, Lord Lyndhurst. Henry, Lord Brougham and Vaux. John Singleton, Lord Lyndhurst. Sir C. C. Pepys, M.R., Sir L. Shad- well, V.C. of E., Bosanqnet, J. Charles Christopher, Lord Cottenham. John Singleton, Lord Lyndhurst. C.C, Ld. Cottenham, aft. E.Cottenham. Henry, Lord Langdale, M.R., Sir L. Shadwell, V.C. of E., Rolfe, B. Thomas, Lord Truro. Edward Burtenshaw, Ld. St. Leonards. Robert Monsey, Lord Cranworth. Frederick, Lord Chelmsford. John, Lord Campbell. Richard, Lord Westbury. Robert Monsey, Lord Cranworth. Frederick, Lord Chelmsford. (D. 5 Oci 1878.) Hugh MacCalmont, Lord Cairns. William Page, Lord Hatherley. (D. 10 July, 1881.) Roundell, Lord Selborne. Hugh MacCalmont, Lord Cairns, aft. Earl Cairns. 1880 April 28 L.C. Roundeli., Lord Selborne, aft. Earl of Selborne. 1801 April 14 L.C. 1806 Feb. 7 L.C. 1807 April 1 L.C. 1827 May 2 L.C. 1830 Nov. 22 L.C. 1834 Nov. 22 L.C. 1835 AprU23 L. Commrs. 1836 Jan. 16 L.C. 1841 Sept. 3 L.C. 1846 July 6 L.C. 1850 June 19 L. Commrs. July 15 L.C. 1852 Feb. 27 L.C. — Deo. 28 L.C. 1858 Feb. 26 L.C. 1859 June 18 L.C. 1861 June 26 L.C. 1865 July 7 L.C. 1866 July 6 L.C. 1868 Feb. 29 L.C. — Dec. 9 L.C. 1872 Oct. 15 L.C. 1874 Feb. 21 L.C. EQUITY JUDGES PROM 1660. XIU MASTERS OF THE ROLLS. 1660 June 1 John, Lord Colepeper. Sir Harbottle Grimston. Sir John Churchill. Sir John Trevor. Henry Powle, Esq. Sir John Trevor. Sir Joseph Jekyll. Hon. John Verney. William Fortescue, Esq. Sir John Strange. Sir Thomas Clarke. Sir Thomas Sewell. Sir Lloyd Kenyon, aft. Lord Kenyon. Sir Richard Pepper Arden, aft. Lord Alvanley. Sir William Grant. Sir Thomas Plumer. Robert, Lord GifEord. Sir John Singleton Copley, aft. Lord Lyndhurst. Sir John Leach. Sir Charles Christopher Pepys, aft. E. of Cottenham. Henry, Lord Langdale. Sir John RomiUy, aft. Lord Romilly. (Resigned March, 1873.) Sir George Jessel.* (D. 21 Mar. 1883.) LORDS JUSTICES OP APPEAL IN CHANCERY. 1851 Oct. 8 Sir J. L. Knight-Bruce. Robert M , Lord Cranwortb. Sir G. J. Turner. Sir Hugh Cairns, aft. Lord Cairns. Sir John Rolt. (Resigned Feb. 1868.) Sir Charles Jasper Selwyn. (D. 11 Aug. 1869.) Sir William Page Wood, aft. Lord Hatherley. Sir George Markham Giffard. (D. 13 July, 1870.) Sir Willam Milbourae James. Sir George Mellish. I By the Supreme Court of Judicature Act, 1881, the Master of the Rolls ceased to be a Judge of the High Court, remaining a Judge of the Court of Appeal only. — Nov. 3 1685 Jan. — — Oct. 20 1689 Mar. 13 1693 Jan. 13 1717 July 13 1738 Oct. 9 1741 Nov. 5 1750 Jan. 11 1754 May 29 1764 Dec. 4 1784 Mar. 30 1788 June 4 1801 May 27 1818 Jan. 6 1824 April [ 5 1826 Sept. 14 1827 May 3 1834 Sept. 29 1836 Jan. 19 1851 Mar. 28 1873 Ang. 29 1852 Dec. 28 1866 Oct. 29 1867 July 22 1868 Feb. 8 Mar. 5 — Dec. 21 1870 July 2 — Aug. 9 XIV EQUITY JUDGES PROM 1660. COURT OF APPEAL. Ex-Officio Judges. The Lord Chancellor. The Lord Chief Justice of England. The Master op the Kolls. The Lord Chief Justice of the Common Pleas.* The Lord Chief Baron of the Exchequer, i The President of the Probate, Divorce, and Admiralty Divi- sion." Ordinary Judges (Justices of Appeal, afterwards Lords Justices of Appeal.^ 1870 July 2 The Lord Justice Sir W. M. James. (D. 7 June, 1881.) — Aug. 9 The Lord Justice Sir G.Mellish. (D. 15 June, 1877.) 1875 Oct. 29 Sir Richard Baggallat. 1876 Oct. 27 Sir Geo. Wm. Wilshere Bramwell. (Resigned Oct. 1881.) — Oct. 27 Sir William Baliol Brett. (M.R. 3 April, 1883.) — Oct. 27 Sir Richard Paul Amphlett. (Resigned Nov. 1877; d. 7 Dec. 1883.) 1877 June 29 Sir Henry Cotton. — Nov. 2 Right Hon. Alfred Henry Thesiger. (D. 20 Oct. 1880.) 1880 Nov. 5 Sir Robert Lnsh. (D. 27 Dec. 1881.) 1881 Nov. 1 Sir Nathaniel Lindley. 1882 Jan. 14 Sir John Holker. (D. 24 May, 1882.) — June 1 Sir Charles Stnge Christopher Bowen. 1883 April 9 Sir Edward Fry. VICE-CHANCELLORS. 1813 April 14 V.-C. of E. Sir Thomas Plumer. 1818 Jan. 13 V.-C. of E. Sir John Leach. 1827 May 4 V.-C. of E. Sir Anthony Hart. Nov. 1 V.-C. of E. Sir Lancelot Shadwell. 1841 Oct. — V.-C. K.-B. Sir James Lewis Knight-Bruce. — V.-C. W. Sir James Wigram. 1850 — V.-C.Ld C. Sir Robt. M. Rolfe, aft. Lord Cranworth. 1 These offices were aholished by Order in Council, 16 Dec. 1880. 2 Added to the Court of Appeal by Supreme Court of Judicature Act, 1881. > Supreme Court of Judicature Act, 1877. EQUITY JUDGES FROM 1660. XV 1851 April 7 Oct — V.-C. T. V.-C. K. — — V.-C. P. 1852 Oct — V.-C. s. 1853 Jan. — V.-C. w. 1866 Dec. 1 V.-C. M. 1868 1869 1870 1871 Mar. Jan. July April 5 1 4 19 V.-C. G. V.-C. J. V.-C. B. V.-C. W. 1873 Nov. 11 V.-C. H. Sir George James Turner. Sir Richard Torin Kindersley. (Resigned Nov. 1866; d. 22 Oct. 1879.) Sir James Parker. (D. 13 Aug. 1852.) Sir John Stuart. (Resigned April, 1871; d. 29 Oct. 1876.) Sir William Page Wood (aft. Lord Hatherley). Sir Richard Malins. (Resigned 19 Mar. 1881; d. 15 Jan. 1882.) Sir George Markham Giffard. Sir William Milbourne James. Sir James Bacon. Sir John Wickens. (D. 23 Oct. 1873.) Sir Charles Hall. (Resigned Oct 1882; d. 12 Dec. 1883.) TABLE SHOWING THE SUCCESSION OF THE VICE-CHAN- CELLORS IN EACH COURT. Sir T. Plumer, V.-C. of E. Sir J. Leach, V.-C. of E. Sir A. Hart, V.-C. of E. Sir L. Shadwell, V.-C. of E. Sir R. M. Rolfe. Sir R. T. Kindersley. Sir R. Malins. Sir J. L. Knight-Bruce. Sir J. Parker. Sir J. Stuart. Sir J. Wickens. Sir C. HaU. Sir J. Wigram. Sir G. J. Turner. Sir W. P. Wood. Sir G. M. Giffard. Sir W. M. James. Sir J. Bacon. 1873 1866 1870 1871 HIGH COURT OF JUSTICE. Jitdges of the Chancery Division. The Lord Chancellor (President). Aug. 29 Sir G. Jessel, M.R. (D. 21 Mar. 1883.) Dec. 1 Sir R. Malins, V.-C. (Resigned 19 Mar. 1881; d. 15 Jan. 1882.) July 4 Sib J. Bacon, V.-C. April 19 Sir J. Wickens, V.-C. (D. 23 Oct. 1873.) XVI EQUITY JUDGES PEOM 1660. 1873 Nov. 11 Sir C. Hall. V.-C. (Resign Dec. 1883.) 1877 April 28 Sir E. Fry. 1881 Mar. 30 Sir Edward Ebenezer ELiT. — Sept. 6 Sir Joseph William Chittt. — Nov. 1 Sir Ford North. 1882 Oct. 24 Sir John Pearboit. FOUMS OI' DECREES, JUDGMENTS, AND ORDERS. INTEODUCTORY. OP DECREES, JUDGMENTS, AND ORDERS GENERALLY. Under the concurrent but, to some extent, conflicting systems of Law and Equity hitherto administered, the forms of judgments at Common Law and of decrees in Chancery differed widely. Judg- ments at Common Law were uniform, simple, and invariable, and being limited by the form of the writ in the action to the recovery of land, goods, or money, could not be moulded so as to meet cases in which conditions were to be imposed or various interests dealt with. Decrees in Chancery, from the more comprehensive nature of the relief given, the number of the parties often interested, the various claims asserted, circumstances to be dealt with, and questions to be finally determined, were necessarily more complicated. But not- withstanding the greater pliability of equitable jurisdiction and pro- cedure, the forms of the decrees and orders by which the Court gave effect to its determinations were generally well established and, for the most part, uniform. Upon this ground they have been frequently referred to as regulating the practice and elucidating the law and procedure of the Court. The great utility of consulting them, and the advantages of ad- hering to the settled and well understood forms and language of decrees, have been repeatedly adverted to by some of the most eminent judges in Equity : see Merriott v. The Anchor Heversion- ary Co., 3 D. F. & G. 177 ; Sherwin v. Shakspear, 5 D. M. & G. 534 ; Mills v. Slater, 8 Ves. 303 ; Cricket v. Dotby, 3 Ves. 13 ; Wil- lan V. Willan, 19 Ves. 593 ; Molland v. Prior, 1 M. & K. 246. Decrees ^ are either final or interlocutory. If the decree deter- nained all the questions in issue between the parties, and did not 1 The term "judgment," under the Judicature Acts and Bules, compre- hends and is equivalent to "decree." 1 Si INTRODUCTORY. adjourn any matter for further consideration, It was called a final decree. In strictness, however, a decree was said to be interlocu- tory until it was signed and enrolled : For. Mom. 183. But ordi- narily it has been termed interlocutory when it was pronounced for the purpose of ascertaining matter of law or of fact previously to a final decree. In interlocutory decrees in Equity, the consideration of the par- ticular question to be determined, or further consideration generally, is adjourned by the decree. The further hearing was formerly termed the hearing upon further directions, or, after proceedings directed at law, the hearing upon the equity reserved. But since the 15 & 16 Vict. c. 80, and Cons. Ord. 23, r. 15, the direction has been, "that the further consideration of the cause be adjourned." And Cons. Ord. 21, r, 10, directed that the cause when set down again be set down ^'for further consideration." It is in many cases necessary, before the rights of the parties can "be finally determined, to make inquiries as to facts, or parties, to take accounts between the parties, or take the accounts of the estate to be administered, or get in the personal estate, and sell the real estate. In such cases the usual course has been to direct that the further consideration of the cause be adjourned ; and when the inquiries have been a,nswered, or the accounts taken, and the cer- tificate of the proper oflScer has been filed, the cause is brought on ^ain. The term "decree" was properly applied, although the effect might be merely to direct accounts or inquiries, inasmuch as the right of the plaintiff to call upon the defendant to account, which is often disputed, was thereby generally determined. But a preliminary direction at the hearing, with a view to inquiry, was not properly a decree, but a decretal order: Horwood v. Schmedes, 12 Ves. 315. And even after a decree directing accounts and inquiries the bill might always be dismissed at the hearing on further consideration, if it then appeared that the plaintiff had no interest to maintain the suit : barton -v. Barton., 3 K. & J. 312, 317 ; see also Houieman y. Houseman, 1 Ch. D. 535. Decrees or decretal orders are in general also termed interlocu- tory when made on motion before the regular hearing. Upon the ground that the decree is interlocutory until enrolment, rehearings are permitted : For. Bom. 183. But a decree when en- rolled, and thus made a record of the Court, cannot be varied or set aside except by the House of Lords or by a bill of review. And until it has been enrolled it cannot be pleaded in bar of a suit, though it may be Insisted upon by way of answer: Senhouse v. Farl, 2 Ves. 450 ; Sheriff v. Spwrhes, West, 130 ; BramUyn y. INTRODUCTORY. 3 Ord, 1 Atk. 571 ; "West, 512. But it has been doubted whether this rule applied when the bill sought to impeach the decree on the ground of fraud : Pearse v. Dobinson, 3 Ch. 1 ; 1 Eq. 241. Important distinctions as to priority have also been taken be- tween interlocutory and final decrees. It has been held that interlocutory orders for an account of plain- tiff's demand and payment out of the assets (Smith v. Saskins, 2 Atk. 385) ; or that in taking the account against an executor, he should be charged with the amount found due to the estate ( Garner V. BHggs, 4 Jur. N. S. 230 ; Chadwick v. Solt, 8 D. M. & G. 584), do not operate as a judgment so as to give priority. But a final decree in a specific performance suit, directing the amount of inter- est to be computed and payment accordingly, has had effect given to it as a judgment : D. of Beaufort v. PhiUips, 1 De G. & S. 321 ; Perry v. Phdips, 10 Ves. 34 ; and see Dart, V. & P. 460 ; Dan. 894, 895. By the Judicature Act, 1873, s. 100, " cause " shall include any action, suit, or other original proceeding. between a plaintiff and a defendant. "Suit" shall include action; "action" shall mean a civil pro- ceeding commenced by writ or in such other manner as may be pre- scribed by rules of Court, but not a criminal proceeding by the Crown ; and " matter" shall include every proceeding in the Court not in a cause. BECITALS. Formerly the decree contained statements of the pleadings; anciently they were interwoven with the directions ; more recently the entire state- ment was placed first, and the ordering part afterwards. Several general orders have been issued, with the view to shorten the recitals in decrees and orders: see 1 Sand. 236, 568. And in particular, by Cons. Ord. 23, r. 2, giving further effect to 3 & 4 Will. IV. c. 94, s. 10: — It shall not be necessary in drawing up any decree or order to insert the year of the sov- ereign, or to recite any of the pleadings, or any part of the petition or notice of motion, as the case may be, or any previous decree or order in the cause or matter, or any report, certificate, affidavit, or other document that has been filed or recorded in the Court, but it shall be sufficient to refer thereto. But in matters of contempt, or where the decree or order varies from some general rule, and in such other cases as the Court shall direct or the Registrar shall in his discretion see fit, the Registrar shall make such short recitals as may be necessary to show the grounds on which the decree or order is granted. PART I. FRAME AND USUAL DIRECTIONS. CHAPTER I. FRAME OF DECREES, JUDGMENTS, AND ORDERS. Section I. — Decebb at the Hbaking op the Cause. [^Date and Title."] 1. This cause coming on (the day of , and) this day to be heard and debated before this Court, in the presence of counsel learned for the Pit and the Defts [or, if some of the Defts do not appear, for the Pit and the Defts A. and B., no one appearing for the Defts C. and D., although they were duly served with a subpoena to hear judgment in this cause, as by the affidavit of, &c., filed the day of , appears] ; and the pleadings in this cause being opened, upon debate of the matter and hearing [the said affidavit &c., Enter the evidence, if any, read, and] what was alleged' by the counsel on both sides [or for tiie Pit and the said Defts A. and B. This Court doth [or, do] order (and decree) &c. Section II. — Trial without Juey. 2. Judgment at Trial hy Judge without a Jury. [Date and Title.] This cause [^or action] coming on for trial [the day of and] this day, before this Court, in the presence of counsel for the Pit and the Defts [«y any persons not named in the title appear name them, or, if some of the Defts do not appea/r, for the Pit and the Deft B., no one appearing for the Defts C. and D., although 6 PBAME AND USUAL DIRECTIONS. [PAET I. they were duly served with notice of trial as by the aflSdavit of, &c., filed the day of appears], upon reading the probate of the will of, &c., the affidavit of the Deft B., in answer to interrogato- ries, the admissions in writing, dated, &c., and signed by the solici- tors for the Pit and the Deft B., the affidavit of, &c., filed the day of , the exhibits marked K. and L., produced to W. on his examination taken orally before this Court this day ^or on the day of ], and upon hearing the evidence of the said W. upon such examination, and what was alleged by counsel on both sides lor for, &c.] : This Court doth declare, &c. And this Court doth order (decree) and adjudge &c. 3. jff Standing: for Judgment. This Court did order that this cause [or action] should stand for judgment, and this cause standing for judgment this daj' in the paper, in the presence of counsel for the Pit and Defts : This Court doth &c. EXTERING EVIDENCE AS READ. EVery order contains a reference to the evidence on which it is made, and particularly notices the documentary evidence; generally specifying the nature of the document and its date, if any, or if it be referred to as an exhibit, either specially noticing the exhibit mark, or identifying the exhibit by reference to the affidavit or deposition., Where the Deft was not called upon for his defence, but the Fit's suit was dismissed on his- own case, the Deft was entitled to have entered in the decree as read all the evidence on which he intended to rely, Mariby v. Sewicke, 3 Jur. N. S. 685; 5 W". R. 867; Singer, Sj-c. Co. v. Wilson, 2 Ch. D. 448 ; although the Deft's witnesses had not been cross-examined ; as they might be bn appeal: Chabordr. New Russia Co., M. R., 26 July, 1871. Documents intended to be used in evidence in an action ought, though included in the signed admissions, to be formally put in at the trial, and marked by the Registrar: Watson v. Rodwell, 11 Ch. D. 150, 153. For forms of entering evidence, see p. 10. It is not for the Registrar to state what facts are proved, but only what evidence is admitted ; and for the Court itself to say what facts are estab- lished by it : Trulock v. Rohey, 2 Ph. 396. And it is material that the evidence should be entered in such a way as will show precisely what was received: Watson v. Parker, 2 Ph. 5; M'Mahon v. Burchell, Id. 137, although the decree only directs issues or inquiries: Parker v. MorreU, Id. 453; Drake v. D., 25 Beav. 641; thus when any evidence tendered is objected to, the Court should adjudicate on its admissibility, and either receive it or reject it, in which case that circumstance should be noticed in the decree, Forms, p. 10; evidence ought not to be entered as read de bene esse, Watson v. Parker; Parker v. MorreU, supra. CH. i. S. II.] TEIAL WITHOUT JURY, 7 The entry of the evidence, followed by a statement, that both sides con- sent that such entry should be without prejudice to its admissibility, is improper; as the Court should adjudicate on its admissibility: M'Ma3%on V. Burchell, 2 Ph. 137. Where, to save time, documentary evidence was to be entered as read, if the parties could agree, and they could not agree, the Court permitted a rehearing, confined to the subject of the evidence : Wyld v. Ward, 1 Y. & J. 536. Upon a demurrer to a bill of review, the parties were bound by the re- citals of the evidence contained in the decree: Combes ■v. Proud, Freem. 182; 2 Eq. Ab. 174; and see Cotlwell v. Child, Freem. 154; Mellish v. Williams, 1 Vern. 166; but see Bonham v. Newcomh, 1 Vern. 214; Brend V. B., Id. 213; and see Trvlock v. Robey, 2 Ph. 396. Errors in the recit^ of evidtence may be coiTected on a rehearing: see Combes V. Proud, sup.; or after a demurrer to a bill of review has been overruled: ColteraU v. Purchase, 1 Atk. 290. But in D. P. only the evi- dence entered in the decree could be looked at: Femie v. Younff, L. K. 1 H. L. 63. GROUNDS OF DECREE. Formerly the Court, in some instances, directed the reasons df its de- cree to be specially entered therein: Mayitard v. Moseley, 3 Swa. 653; Onims V. l^rer, 1 P. W. 343; Qihson v. Kirtven, 1 Vern. by Raith, 67, n. But this practice is not usual: Exp. E. Jlchester, 7 Ves- 373. Nevertheless, the iitility of it has been noticed: Box v. Whitehead, 16 Ves. 24; Gordon -v. G., 3 Swa. 478. And it is sometimes adopted: Gordon v. Q., sup.; Jenour v. J., 10 Ves. 573; A. G. v. Clapham, 4 D. M. & G. 607; Austin, v. A., 11 Jur. N. S. 536. DECLARATION OP RIGHT. The Court frequently prefaces its decrees by declarations of matters of fact, or of the rights of the parties, and then proceeds to decree the con- sequent relief. Thus, in decrees to execute the trusts of wills relating to real estate, the Court often declares the will to be well proved, and that the same ought to be established and the trusts thereof performed; and so, where the Court gives effect to an agreement, or an equitable mort- gage, or construes a will or other instrument, or sets an instrument aside, and in other cases. And where a party establishes his right to property, the direction to transfer it to him is often prefaced by a declaration of his title: Jenarur v. /., 10 Ves. 568. ADDUCING EVIDENCE — ORAL EXAMINATION — AfFIDAVITS. For form of order to examine witnesses out of the jurisdiction, flee Lon- don Bank of Mexico v. Hart, 6 Eq. 467. The Court would not allow evidence filed in an action sub Judiee to be sent abroad for the purposes a! an examination in another action: Re Stephens, L. R. 9 C. P. 187. 8 FRAME AND USUAL DIRECTIONS. [PART I. A surveyor appointed as special referee to make a report ought not to be called as a witness: Broder v. Saillard, 24 W. R. 456. Answers given at the hearing by the deponent to an affidavit were good vivd voce evidence, though he was not then sworn: Bosquet v. Bent, 21 W. R. 749; 42 L. J. Ch. 575. A Pit, though entitled to costs generally, had to pay the expenses of witnesses whom he had declined to cross-examine at the hearing, after obtaining leave to do so: Guilfoyle v. Hutchinson, Ir. Rep. 8 Eq. 298. On the cross-examination, on a petition for winding up, of the secretary of a company as to accounts the Petitioner was entitled to have the books produced: Re Emma Mine, 10 Ch. 194. An affidavit cannot be withdrawn to avoid cross-examination: Clarke y. Law, 2 K. & J. 28 ; 4 W. R. 35 ; Pike v. Dickinson, 21 W. R. 862. After the time for closing the evidence had expired, the Court would only extend it under special circumstances: Thompson v. Partridge, 4 D. M. & G. 794 ; Poupard v. Fardell, 18 W. R. 37; and the subsequent discovery of an important witness was not enough: Thexton v. Edmonston, 5 Eq. 373. In Wilson v. Oann, 23 W. R. 546, the evidence of a new witness was al- lowed to be used. But Defts were allowed to file affidavits in answer to specific charges as to character made in affidavits filed immediately before: Scott V. Corporation of Liverpool, 1 D. & J. 369; and a Pit was allowed, under special circumstances, to read an affidavit filed after the time, re- serving the right to cross-examine: Hope v. Threlfall, 1 S. & 6. xxi. ; and see Douglas v. Arehbutt, 23 Beav. 293. Where on replication new issues were raised by the Pit's affidavits the Deft had leave to file evidence in reply: Leech v. BoUand, 10 Ch. 362; and affidavits ready but omitted to be filed, were admitted: Armstrong v. j1., Ir. Rep. 7 Eq. 84. It is not of course to give an opportunity of answering evidence filed by leave after the proper time: Poupard v. Fardell, 18 W. R. 59. A motion for leave to use further evidence could not be made exparte : Richards v. Curlewis, 18 Beav. 462 ; and the leave had to be applied for before the hearing : Smith v. Pilgrim, 2 Ch. D. 127. As to going into further evidence in chambers to dispute the Pit's debt after a decree for administration: Cardell v. Hawke, 6 Eq. 464. DOCUMENTAKY EVIDENCE. For the practice with regard to documents which prove themselves, and generally as to documentary evidence, see Dan. 757; Ayck. 159 ; and as to proving exhibits vivd voce, or by affidavit at the hearing, see Dan. 141, 777 ; Ayck. 162 ; Morg. 466 ; a deed impeached by the answer cannot be so proved: Hitchcock v. Carew, Kay, xiv. As to entries against interest, by persons since dead, Taylor v. Witham, 24 W. R. 877. The order giving leave to prove documents by affidavit or viva voce, should be entered as read in the decree. Where two causes strongly resemble each other in point of fact, but the allegations of fact are not the same in each, the record of one cannot be referred to for the purpose of explaining or supplying anything in the other : Gann v. Johnson, L. R. 4 H. L. 265. CH. I. S. II.] TRIAL WITHOUT JURY. 9 Where the Defts in one suit were some of the Defts in another, by same Pit, and the facts were the same in both, though the relief prayed was different, on an eseparte application by the Pit the aflSdavits in the one cause were allowed to be read in the other, as against Defts who were par- ties to both suits, and notice was to be given : Brown v. White, 24 W. R. 456, and in Re WooUey's Trusts, 24 W. R. 783, evidence of a death which had been used in another matter was ordered to be used in this for the same purpose. The affidavit of a witness deceased was allowed to be used, the ques- tion in issue being lietween the same parties : Lawrence v. Maule, 4 Drew. 472. A certificate of birth is not evidence of the date of the birth, but only of the fact of the birth having taken place before the date of registration :| Be Wintle, 9 Eq. 373. • A copy of a register of death should be supported by an affidavit as to the fact of burial : Riseley v. Shepherd, 21 W. R. 782. Probate or lettei-s of administration are not received as evidence of the death, but only to show who represents the deceased. On unopposed applications for payment of money out of Court, any deed required to be proved is usually required to be proved by the attest- ing witness, Re Reay, 1 Jur. N. S. 222 ; and if the attesting witness be dead, or abroad, or cannot be found, the proper course is to prove these circumstances, and the signature of the witness; a deed under seal re- quires proof of the delivery by the party, not merely of the signature. A power of attorney to receive money, though usually under seal, need not be so. FORM AND CONTENTS OF AFFIDAVITS. A motion to take affidavits off the file on the ground of length and ir- relevancy was refused, and the attention of the Court ought to be drawn to such matters at the hearing, Owens v. Emmens, W. N. (75) 210, 234. Objections for irregularity should be taken when a deposition is tendered in evidence, and not by motion to take it off the file: De Britto v. HiUel; 15 Eq. 213. Affidavits by persons having no personal knowledge of the facts and merely echoing the statement of claim should not be filed, and the costs are to be disallowed : joer M. R. W. N. (76) 59. The omission in an affidavit of the words " make oath and " render it inadmissible : Allen v. Taylor, 10 Eq. 52; Re Newton, 8 W. R. 425; but not the omission of merely formal words : Bowes v. Farrar, 14 Eq. 71. Affidavits by marksmen were to be filed, although the usual statement in the jurat that they had been read over had been omitted, Fernyhough v. Naylor, 23 W. R. 228, and a deposition which ought to have been written by the examiner written by another person in the presence of all parties, and so certified by the examiner, was ordered to be filed : Bolton v. B., 2 Ch. D. 217. 10 FRAME AND USTTAL DIRECtlONS. [PART I. READING DEFT'S ANSWER TO INTKRR0GAT0RIB8 AT THE TRIAL. The practice before the Judicature Acts as to reading answers was as follows : — The Deffs answer was usually entered as read; but it was not the prac- tice to mention in the decree or order the particular passages which were actually read ; if any part was read, the answer was entered as read gen- erally ; and so also with regard to affidavits : Manhy v. Bewicke, 3 Jur. N. S. 685; 5 W. R. 867; and see Bright v. Legerton(^o. 2), 29 Beav. 69; Hodge V. Doulton, 18 W. R. 58. At the hearing on replication Pit could read Deft's answer, but Deft > could not read bis answer as an affidavit, on notice that it would be so •sed, but to make it evidence it might be referred to by a short affidavit verifying, it,, and making it an exhibit : Barrack v. M'Culloeh, 3 K. & J. 110; Williams v. W., 10 Jar. N. S. 608,12 W. R. 663; Hewdl v. WiUiamti IS. &G.xi.;Dan.743. Deft might read his answer on the question of costs : Vaneouv^ v. Bliss, 11 Ves. 458. As to Pit's right to read passages from the answer without reading the whole, and generally as to the practice with regard to reading the answer, see Smith, 389; Ayck. 14l; Dan. 741; Morg. 169. And as to using admissions in the answer of one Deft against another,, see Sallmarsh v. Hardy, 42 L. J. Ch. 422. A Deft, against whom a co-Deft's answer was to be read, could cross- examine upon it : Dawhins v. Mortem, 1 J. & H. 339. Under the new practice the functions of answers in Chancery are per- formed as to what was pleading, by the statement of defence, and as to discovery, by the affidavit in answer to interrogotorieB. ADMISSIONS, CONSENTS, SUBMISSIONS, AND CNDEBTAKINGS — WAIVERS. The Court frequently proceeds upon admissions by the parties, or some of them, by their counsel at the bar, of facts, consente, submissioDS, under- takings, or waivers of claim; in which case they should be inserted in the decree or order immediately before the ordering part, if they relate to the whole, or immediately before the part to which they relate, if they do not relate to the whole : see Mayhery v. Brooking, 7 D. M. & G. 673, 679. APPENDIX. 1. Waiver and Undertaking. The Deft B. having by his counsel waived and relinquished [^nr by his counsel waiving &c.] his right, if any, to charge or be allowed compound interest under or by virtue of the several instruments in the pleadings C^. L APP.] POEMS. OP ENTERING EVIDENCE, ETC. 11 mentioned, or any or either of them, and having also undertaken [or, and also undertaking] not to take any proceedings against the Defts C. &c., or either of them, under or in respect of such instruments or any or either of them, without the leave of this Court, Let &o. : see Moss v. Bainbrigge,, 6 D. M. & G. 335, 844. 2. Suhmission and Waiver. The Fits by their counsel submitting to account as this Court may direct, and the Beft by his counsel waiving all claim to compensation for delay alleged to have been occasioned by the Fits in the execution of the works in &c., done, or to be done, Let &o. E. L. Ry. v. Hattersley, 8 Hare, 95. 3. WillSf/Prohales, Letters of Administration. The will of A., dated &c. The probate of the will of A., granted on the day of to B. Letters of administration to the estate of A., granted on the day of ,1876. Letters of administration to the estate of A., with his will annexed, on the day of , granted to B. An ofSoial extract of the will of A., proved by B. on the day of . i. An Indenture. The indenture in the pleadings mentioned, dated &c., and made be- tween &o. [and if not thirty years old, an affidavit of A., filed &o., prov- ing the execution thereof by &c.}. 5. A Deed Poll. The deed poU in the pleadings mentioned, dated &c. , under the hand and seal of &c. [and if not thirty years old an affidavit of ScJ. 6. Power or Letter of Attorney. A deed poll [or power of attorney] under the hand and seal of A., and an affidavit of &o., proving the execution thereof [or if so verifying the signature of the said A. to the said power of attorney]. 7. Plea^ngs. The bill of the Pits. The answer of the Deft B. The replication of the Fits. 12 FBAMB AND USUAL DIRECTIONS. [part 8. Affidavit in Answer. The affidavit of the Deft B. iu answer to the interrogatories delivered by &o. 9. Depositions. The depositions of C. filed &c., and the exhibits therein referred to, the exhibit X. being &c. [or The proofs taken iu this cause] . 10. Evidence rejected. The deposition of C, except paragraph No. , the said paragraph of the depositions of the said witness and the exhibit X. therein referred to having been tendered as evidence on behalf of the Defts, and rejected by this Court. 11. Affidavits in Schedule where Parts rejected. The several afSdavits of the deponents named in the Schedule hereto, and the exhibits therein referred to, except such portions of the affidavits iu the first part of the said Schedule as are specified in the fourth column of the said part of the said Schedule, such portion having been tendered as evidence on the part of the Pits and rejected by the Court. SCHEDULE. Page of Affidavit. Names of Deponents. Dates when Filed. Portions r^ected. Exhibits referred to. 7 Robert Allen. 21st May, 1876. Par. 10. To the word " but " in line 27, page 7. E. F. G. 12. Evidence taken vivd voce. The evidence of A. on his examination [or cross-examination] taken orally before this Court on the day of &c., and the exhibits marked X., Y., Z., &c., produced to the said A. upon such examination [or cross- examination]. The said exhibit X. being an indenture dated &c., and made between &c., and the said exhibit Y. being a letter dated &c., written by B. to C. 13. The like — with Schedule. The evidence of the several persons named in the Schedule hereto, on their examinations taken orally before this Court upon the several days set opposite their names in the said Schedule, and the several documents CH. I. APP.J FORMS OP ENTERING EVIDENCE, ETC. IS and other exhibits produced to such persons on their said examinations, referred to in the fourth column of the said Schedule. SCHEDULE Witnesses examined on the part of the Pit. Page of Shorthand Notes. Names of Witnesses. Date of Examination. TlTtlilWts. 461 John Gra7. &c. 13th July, 1874. &c. Cattle-marking iron for the Parish of W. &c. 14. Mutual or Voluntary Admissions. The admissions in writing dated &c., and signed by (Mr. , the solicitor for) the Pit A., and by (Mr. , the solicitor for) the Deft B.,- and the several documents therein referred to. 15. Exhibits proved by Affidavit at the Hearing, under Order. An order, dated &c., whereby it was ordered [Recite order giving liberty to prove the exhibit;'] the said indenture and an afiBdavitof A. filed the day of , proving the due execution thereof by, &c. 16. Order to read Documents in another Cause, ^c. The order dated &c., and the several documents in the cause [or action] ot A. y. B., in the said order mentioned. 17. Certificates of Baptism, Marriage, or Buried:. An exhibit marked X. being an extract from the register book of bap- tisms [or marriages, or burials] for the parish of , in the county of , whereby it appears that A. was baptized [or buried, or that A. and B. intermarried] on the day of &co. 18. Shorter Form of entering Exhibits referred to in Depositions, or Affidavits. The deposition of [or, the aflSdavit of , filed the day of ], and the several exhibits marked respectively A., B., C, D., &c., therein referred to. Note. — If the exhibits are accurately described, so as to identify them in the deposition or affidavit, the above form is suflBcient ; if not, or if for any reason a more particular entry is desired, the exhibits should be shortly described in the more exact forms above given. 14 PBAMB AND USUAL DIRECTIONS. [PAET I. Endorsement bg Hegitlrar on Documents produced in Umdenee. In the Court, A. V. B. The day of . This will [or indenture, or deed poll, or letter, or document] marked X.,, was read in evidence at the heai'ing of this cause, or on the trial of this action. C. D., Begistrar. Where prodxtced to a Witness in Court. In the Court. The day of . A. V. B. This exhibit marked X. was produced at the trial of this action [or the hearing of this cause, or petition, or motion, or summons], on the {cross-) examination of . CD., Registrar. For the proper form of marking exhibits referred to in an affidavit : see Braith. 341, 403. Similar forms should be used where the examination is bad before com- missioners; the short title of the cause or matter should be always added, whether the exhibit is to be used in Court or in Chambers. Section III. ^Motion fob Judgment, judgment or Order upon Motion for Judgment. In the — ^ Court. \_Date and Title,'] Upon motion foT judgment this day made unto this Court by counsel for the Pit, and upon hearing counsel for the Deft, This Court doth order and decree [and adjudge]. Section IV. — Fubthbe Consideration. Order on Further Consideration (jxnd Motion, or adjourned Summons, to vary Certificate). In the Court. \_Date and TiUe, umed summons, and upon the application of the Deft A. to vary &c., which upon hearing the solicitors for the applicant, and for &c., in chambers, was adjourned to be heard in Court,] upon hearing the [said] decree [pr judgment, or order] dated the 4ay of , the Chief Clerk's certificate dated the day of , [Miter any affidavits of senvioe, ,and -an^ other evidence^, and what was alleged by the counsel on both sides [or for all parties, or for the Pit and the Deft A., and if so, and for the said D., or E.,,orF.'], This Court doth <&c. PRINCIPLE or DECREE NOT TO BE VARIED. The Court will not, on the further consideration of the cause, entertain questions raised on the pleadings, but with respect to which no direotion or reservation is contained in the original decree, Legrand v. Whitehead, 1 Rus. 309 ; and see Morgan v. M., 13 Beav. 441 ; and as to raising on fur- ther consideration questions not raised in the pleading, see Hughes v. Jones, 3 D. F. & J. 307. Interest may, on further consideration, be directed to be eo)?iputed on balances certified to be due, i£ grounds for it appear by the certificate: see Dan. 1231. But though grounds for it may appear, the Court will not, on further consideration, direct a party to.be"cbarged with vifilful d^ault : see Dan. 1232. The principle on which costs have by the original decree been directed to be taxed, will not be varied, Wilson v. Metcalfe, 1 Rus. 530; Trezevant V. Frazer, Dan. 1226; Quarrell v. Beekford, 1 Mad. 286; but where by a decretal order directing an inquiry what damage Pit had sustained, with liberty to apply, no further consideration was adjourned, but costs of suit were ordered to be paid by Deft, the Pit, though entitled to the costs of all matters properly within the inquiry, potwithstanding he failed to prove any damage, was ordered to pay the costs of questions improperly raised by him in prosecuting such inquiry: KreU v. Park, 10 Ch. 4S4. 16 FEAMB AND USUAL MRECTIONS. [PAET I. Section V. — Special Petition. 1. Order on Petition. In the Court. [Date and Title.'] Upon the petition of &c., on the day of , preferred unto the Court, and upon hearing counsel for the Petr [and for &c., Name the respondents if any], and upon reading the said petition [an affidavit of A. filed &c., of service of the said petition on &o., Name any persons served and not appearing, and enter any evi- dence]., This Court doth order &c. 2. Order on Petition as to part adjourned. Upon the petition of &c., on the day of , preferred unto &c. [Form 1], the further consideration (hearing) whereof was adjourned by the order dated the day of , and upon hearing counsel for the Petr and for &c., and upon reading the said order &c., This Court doth order &c. 3. Order on Petition adjourned to Chambers. Upon the petition of &c., preferred &c. [Form 1], which upon hearing counsel for the Petr and for &c., on the day of , was adjourned for consideration in chambers, and upon hearing the solicitors for the Petr and for &c., in chambers, and upon reading &c., It is ordered, &c. 4. Order on Petition dismissed. Upon the petition of &c., preferred &c. [Form 1, And recite prayer of petition] , and upon hearing counsel for the Petr and for &c., and upon reading the said petition {enter evidence], This Court doth order that the said petitipn be dismissed [if with costs], with costs to be paid by the Petr A. to the said B. and C. [name the respondents to receive costs] , to be taxed «&c. NOTES. Petitions are either special or of course; orders on the latter being made without any direct application to the Judge ; for the practice on special petitions, and when they are proper, see Dan. 1434. The petitioner, if not a party to the cause, must give his name, resi- dence, and description : Glasbrqok v. Gillatt, 9 Beav. 492; and if abroad, may be required to g^ve security for costs : Atkins v. Cooke, 3 Drew. 694, 5 W. B. 384; and so on petition under the statutory jurisdiction, and CH. I. S. VI.] SPECIAL MOTION. 17 though respondent had filed a£5davits : Anon., 12 Sim. 262; Exp. Seidler, 12 Sim. 106 ; Re Dolman, 11 Jur. 1095. But the order for security to be given was refused as to a petitioner residing abroad, who was a Deft in the suit in which the petition was presented : Cochrane v, Fearon, 18 Jur, 568. Secus, where he came in under the decree : Partington v, Reynolds, 6 W. E. 307. Infants and married women entitled for their separate use, or whenever the husband's interest is adverse, must petition by a next friend; and the Court wiU. require a guardian to be appointed to an infant respondent in a matter : lie Barrington, 27 Beav. 272 ; Re Ward, 6 Jur. N. S. 441. In Re Mitchell, 23 Jan. 1866, V.-C. K. allowed an infant respondent to appear by her testamentary guardian, but imder the circumstances required an affidavit that the guardian had no adverse interest. Service of a petition jiot in a suit has been directed on a respondent abroad, the petition being also served on the respondent's solicitor: Cook's Claim, 18 Eq. 655 ("V.-C. B.) ; and see Re Haney, 10 Ch. 275, overruling Re Maugham, 22 W. R. 748; Re Mewbum, W. N. (74) 156. If a respondent does not appear, the order may be made as against him, on affidavit of service; if the petitioner does not appear when the petition is called on in regular order as an opposed petition, the respondent may have the petition dismissed with costs on producing an affidavit of having been served. Leave to amend the petition is almost of course; and an amendment is often required by the Court before granting the order : and see Maison v. Sioiji, 8 Beav. 378, 379; 9 Jur. 521; Re Humphrys, 1 Jur. N. S. 921. Petitions have been amended after the hearing and the passing and en^^ try of the order : Hislap v. Wykeham, 3 W. R. 286; Re Bunnett, 1 Jur. N. S. 921; Re Haveloch, 14 W. R. 26, 174 (but see Re Marrow, C. & P. 142). Facts occurring after leave to amend given may be stated in the amend- ments : Re Westbrook, 11 Eq. 252. i An amended petition does not in general require re-answering : Re Medow, 12 W. R. 595; 10 Jur. N. S. 536; Robinson v. Harrison, 1 Drew. 307. A respondent who appears unnecessarily after service and tender of a sufficient sum to enable him to get legal advice, will not have his costs : Re Duggan, 6 Eq. 697 ; Boucher v. Wood, 6 Ch. 77, and cases there cited ; Carey, V. Whittingham, T. & R. 405: Re Gore Langton's Estate, 10 Ch. 328. Section VL — Special Motion. 1. Order on Motion. In the Court. {^Date and Title.'} Upok motion this day made unto this Court by counsel for &c., and upon hearing counsel for &c. \^lf so, and upon reading an aflSdavit of &c. filed &c., of service of notice of the said motion on &c., Enter any evidence}, This Court doth order &c. 2 18 FRAME AND USUAL DIEECTIONS. [PART 2. The like — and on Croes Motion. Upon motion &c., by counsel for «fec., that {_Secite Pl^s notice'], and upon motion &c., by counsel for &c., that &c. l^Becite the cross notice], and upon reading, &c. [^£hter any evidence], and upon hearing what was alleged by the counsel on both sides, This Court doth order &c. 3. Form of Order on Motion Refused. Upon motion &c., by counsel for &c. [^Recite notice], and upon hearing counsel for &c. \_Enter evidence]. This Court doth not think fit to make any order upon the said motion ^ifvith costs, but doth order that the Pit A. do pay to the Deft B. his costs of the said motion, to be taxed by the Taxing Master, if so, in case the parties diflter.] 4. Order on Abandoned Motion. Whekeas the Pit A. did, on the day of &c., give notice that this Court would be moved, on Thursday, the day of &c., or so soon after as counsel could be heard, by counsel for the Pit A. that [Mecite notice] ; Now upon motion this day made unto this Court by counsel for the Deft B., who alleged that the Pit A. had not moved this Court pursuant to the said notice. This Court doth order that the Pit A. do pay to the Deft B. his costs occasioned by the said notice of motion, such costs to be taxed by the Taxing Master. CH. II.] PBOCEEDINGS IN CHAM6EBS. 19 CHAPTER n. PROCEEDINGS IN CHAMBERS. Adjouening to and feom Chambees. 1. General Adjournment to Chambers. Let this cause [or action, or matter, or petition, or application] be adjourned for consideration in chambers. 2. Particular Reference — Accounts and Inquiries. Let the following accounts and inquiries be taken and made, that is to say : 1. An account &c. ; 2. An inquiry &c. 3. Order on Summons in Chambers. In the Court. At Chambers. [Dafe and Title.'] Upon the application of the Pit [^or Deft] A., and upon hearing the solicitors for the ai^licant, and for &c. [^Name any parties or persons appearing], and upon reading [an aflSdavit of &c., filed &c., of service of the summons on &c.. Name any parties or per- sons served and not appearing, and enter any eoidence]. It is or- dered that &c. 4. Order on Summons adjourned into. Court. The application of (the Pit or Deft) A., which upon hearing the solicitors for the applicant, and for &c., in chambers, was adjourned to be heard in Court, coming on (the day of and) this day to be heard accordingly, and upon hearing counsel for the ap- plicant and for &c., and upon reading &c., This Court doth &c. 5. Summons refused or dismissed in Chambers. Upon the application of (the Pit or Deft) A, that [^Recite sum- mons], and upon hearing, &c. (Form 3, sup.), the Judge doth not 20 SEOCBEDINGS IN CHAMBERS. [PART I. think fit to make any order upon the said application {^If so. But doth order that the said (Pit, or Deft) A. do pay unto the said (Deft, or Pit) B. the costs of the said application, to be taxed by the Taxing Master] , [ Or, if on summons originating proceedings in chambers, the Judge doth order that the summons filed in this matter [and cause] do stand dismissed] , \_If so, with costs to be taxed by the Taxing Master, and Let the said (Pit) A. pay to the said (Deft) B. the amount of such costs when so taxed]. If on adjournment into Court, vary introduction as in Form 4. CH. III. S. n.J PAYMENT OP MONET, ETC. 21 CHAPTBE III. USUAL DIRECTIONS. Section I. — Fubther Consideration Adjooened^Libebtt TO Apply. 1. Usual Directions adjourning Further Consideration. And Let the further consideration of this cause [or action, or matter and cause] be adjourned ; And any of the parties are to be at liberty to apply [to this Court, or in Chambers] as they shall be advised. 2. The Like — with Liberty to apply in (Jha'mbers as to particular Matter. And Let any of the parties be at liberty to apply in Chambers for the appointment of a receiver, [or for, or as to &c., as the case may 5e,] and otherwise (generally) to apply as they may be advised. 3. If Costs are partly dealt with by the Decree. And Let the further consideration of this cause [or action], and of the costs of this cause [or action] not hereinbefore otherwise provided for [or disposed of ].be adjourned. — Liberty to apply. Section IL— Payment op Monet by one Partt to Another, Let the (Deft) B., on or before the day of (or [if so, sabsequeotly] within ■ days after service of this decree [or order]) pay to the (Pit) A. the sum of $ — — appearing by &c. [or certified &c.] to be due to him in respect of &c. {^or on taking the accounts directed by &c.] 22 USUAL DIRECTIONS. [PAET I. Section m. — Bbinging Funds into Court. 1. Payment into Court. Let the Deft B., on or before the day of (or subse- quently within seven days after service of this decree [or order] , such service to be verified by afSdavit), pay the sum of % , admitted by &c., to be in his hands, as the executor of the will of A., deceased, the testator in the pleadings named, into Court to the credit of this cause, A. v. B. ^ to a separate account, to an account to be intituled, " The account of" &c. 2. Voluntary Payment into Court. Let the Deft B. be at liberty [if so, on or before the day of ] to pay the sum of &c., into Court &c. 3. Payment into Court with Interest. Let the Deft B., on or before &c., pay into Court &c., the sum of $ due from him &c., together with interest thereon at the rate of per cent, per annum, from the day of to the day for payment (to be ascertained by affidavit, or state the mode of computation) . Section IV. — Taxation and Payment op Costs between Parties. 1. Taxation and Payment of Costs by one Party to another. Let Pit (Deft) A. pay to the Deft (Ht) B. his costs of this cause [or action, or application], such costs to be taxed by the Taxing Master ("in case the parties differ). 2. The Like — Other Forms. Eefek it to the Taxing Master to [or Let the Taxing Master] tax the costs of the Pit (Deft) A. of this cause [or action, or appli- cation] ; [or Let the costs of the Pit (Deft) of this cause [or action, or application] be taxed by the Taxing Master] ; And Let the Deft (Pit) B. pay to the Pit (Deft) A. the amount of his said costs when so taxed. CH. m. S. IV.J TAXATION AND PATMENT OP COSTS. 23 3. Pit to pay one Beft's Costs, and recover them with his own from a Co-Deft. Tax the costs of the Deft A. of this cause [^or action] ; And Let the Pit B. pay to the Deft A. the amount of his said costs when so taxed. Tax the costs of the Pit of this cause [or action] ; And Let what the Pit shall pay for the costs of the Deft A. be added to his own costs when so taxed ; And Let the Taxing Master certify the total amount thereof ; And Let the Deft E. pay to the Pit B. the amount so to be certified. 4. Costs of AppUcation to he Costs in the Cause or Action. And Let the costs of the Pit \or Petr, or Deft, or Applicant, or all parties] of this application be costs in this cause [or action]. 5. Petition dismissed with Costs. Upon the Petition of &c. , preferred &c. that \_JRecite prayer of petition'] and upon hearing &c., this Court doth order that the said petition be dismissed with costs, to be paid by the Petr A. to the said B. and C. [Name respondents to receive costs] , and taxed by the Taxing Master (in case the parties differ) . 6. Motion refused with Costs. ~ 4 Upon motion this day made unto this Court by Counsel for [i?e- cite notice of motion'] , and upon hearing &c. , this Court doth not think fit to make any order on the said application ; But doth order that the Pit [or Deft] A. do pay to the Deft (Pit) B. [Mime the party to receive costs] his costs of the said application, to be taxed by the Taxing Master (in case the parties differ). 7. Tax and pay Costs without prejudice how ultimately to he home. Tax Costs of Pits and Defts of this cause [or action] ; And Let the Pit A. pay to the Defts B. and C. respectively the amount of their said costs, when taxed, without prejudice to any question how such costs are ultimately to be borne. Where a party is entitled to costs, but it is not ascertained who ought ultimately to bear them, the decree often directs payment to be made by one of the parties, or out of a fund in Court available for the purpose, "without prejudice to the question how the same are ultimately to be borne : " Smiih v. Hammond, 6 Sim. 10, 15. 24 USUAL DIRECTIONS. [PART I, Def ts disclaiming all interest may be dismissed with costs on motion by Pit, ex parte, without prejudice to the question how the costs shall ulti- mately be borne as between Pit and the other Defts : Clements v. Clifford, 14 W. R. 22; Baily v. Lambert, 5 Hare, 178. 8. Costa made a Charge. And Let the Pits' costs, and also the costs which the Pits or any of them shall so pay to the Defts, be a lien (charge) on the estate of the testator in question in this cause. 9. Party to hear his own Costa. Lst the (Deft) heat his own costs of this application. 10. No Costs given on either Side. The Court doth not think fit to give any costs of this cause [or action, or application] on either side. 11. The Like'^ As to Part. ANb Ihis Court doth not think fit to give any costs on either side, as to eo much of the costs of this cause [or action, or appHcation] as have been occasioned by &e. [or as relate to &c., or so far as such costs have been increased by &c.] i 12. Taxation of PWs and Beffs respective Costs of Parts of Suit — Set-off. Tax the costs of the Pit of this cause [or action], except so much thereof as relates to the claim 6et up by him to &c. ; Tax the costs of the Deft of so much of this cause [or action] as relates to the said claim ; Aad Let the Taxing Master set off the said costs of the Pit and of the Deft when so respectively taxed, and certify to which of them the balance after such set-off is due ; And Let such balance be paid by the party from whom to the party to whom the same shall be certified to be due. 13. Taxation of Costs except so far as oooasioned by particular Claim. Tax the costs of the Pit of this cause [or action] except so far as such costs have been occasioned by the Pit setting up a claim to the whole of the debt in the bill (pleadings) mentioned. Hardy v. MuU, 17 Beav. 355 ; SegUe v. JPenwick, 6 Ch. 869. CH. m. S. IV.] TAXATION AND PAYMENT OP COSTS. 25 14. Taxation of Costs, except so far as increased by particular Claim. Tax the costs of the Pit (Deft) of this cause [o»* action] except so far as such costs have been increased by the Pit's claim to, &c. [^or Deft setting up &c., or claiming &c.] ; Tax the costs of Pit (Deft) of this cause [or action] so far only as the same have been increased hy the said claim [or by the Deft setting up &c., or • claiming &c.] — Directions for set-off and payment of balance. For order in favor of one of two Pits with costs, and dismissing the bill so far as related to the other with costs, so far as occasioned by his being a Pit, see UmJrevUle v. Johnson, 10 Ch. 581. 15. Costs up to a particular Time. Let the Pit. A. pay to the Deft B. his costs of this cause [^or action] up to and including this hearing [or the trial of this action, or the day of (when the Deft offered by &c., in writing, to pay the amount sought to be recovered by Pit &c.)] , such costs to be taxed &c. Where costs are given up to a particular date they will include costs of briefs, affidavits, &c., actually and properly incurred previous to that date, although the application in support of which they were prepared was not heard until after : and see Webster v. Manby, 4 Ch. 872. 16. Costs to he paid hy Pit and Deft respectively from and to a particular Time — Set-off. Tax the costs of the Pit G. of the first-mentioned cause [or ac- tion] up to the day of , the date of the letter from the so- licitor for the Pit in the second-mentioned cause \or action] in his said affidavit referred to ; And tax the costs of the Deft L. incurred in the first-mentioned cause since the day of , and also his costs of this application ; And Let the Taxing Master set off such costs of the Pit G-. and of the Deft L. respectively, when so taxed, and certify to whom after such set-off the balance is due ; And Let the party ftom whom such balance shall be certified to be due pay the amount thereof to the other party. 17. Costs taxed and set off against Sum due. Tax the Pit his costs of this cause [or action] &c. ; And Let such costs when taxed be set off against the sum of $ , which the Pit by his bill admits to be due from him to the Deft under the 26 USUAL DIEECTIONS. [PART I. agreement dated &c., in the bill mentioned, with for interest on the said sum at the rate of per cent, per annum, from the ■ day of to the day of , the date of the filing of the bill (after deducting income-tax), making together $ ; And Let the Taxing Master certifj' to whom, after setting off the said costs when so taxed against the said sum of $ the balance is due ; And Let the party from whom the balance shall be certified to be due, within one month after the date of the Taxing Master's certifi- cate, pay the amount thereof to the other party. — Liberty to apply. 18. Taxation of Executor's Costs between Parties and also So- licitor and Client — Payment of Party Costs by Pit and Balance out of Funds in hand. Tax the costs of the Deft of this matter and cause \or action] as between party and party, and also as between solicitor and client, in- cluding any charges and expenses properly incurred by the Deft in the administration of the estate of G., the testatrix &c., not being costs of suit and not already allowed. And Let I. H., the next friend of the infant Fits, pay to the Defts B. &c., what shall be certified as his said costs as between party and party. And Let the Deft be at liberty to retain and pay out of the funds in his hands, or which may hereafter come into his hands, as the executor of the will of the said testatrix, so much of the said costs as between party and party as he shall not recover and actually receive from the said I. H., and also what shall be certified to be the amount of the difference be- tween the said costs as taxed between party and party and as taxed between solicitor and client, including his said charges and ex- penses. 19. Taxing Master to look into Petition and Affidavits, and if improper or of unnecessary length, to distinguish and set off Costs. Direction to take account of what is due to Petr under certain deeds, and to tax his costs of the application. — "■ And in taxing such costs, the Taxing Master is to look into the said petition and affidavits, and distinguish such parts thereof as shall appear to him to be (what parts thereof are) (improper or) of unnecessary length ; and ascertain the costs, if any, occasioned to the Respondents by such part or parts thereof as may be distinguished as being (im- proper or) of unnecessary length; And Let such last-mentioned costs be deducted from the Petr's costs of this application ; And Let the balance be certified &c." CH. m. S. IV.] TAXATION AND PAYMENT OP COSTS. 2T 20. Costa of Affidavits to be disallowed. DiREcnoN to tax, and the Defts are to be allowed no costs of the following afSdavits, that is to say, an affidavit of &c. For interpleader order with a direction to tax Pit's costs, having regard to any prolixity in his affidavits, he having gone into the merits at length: see Scottish, §-c. Co. v. Steele, 9 L. T. N. S. 677. And see Re Wortham, 4 D. & S. 420 (affirmed on appeal), where the respondent was ordered to pay Petitioner's costs of two petitions, but the Taxing Master was not to allow more costs than would have been allowed if the two petitions had been a single petition ; and if the petitions so treated were of unnecessary length, to deduct the costs so occasioned. PART n. SUMMARY AND ANCILLARY RELIEF. CHAPTER IV. DISC6VERY AND PRODUCTION. Section I. — Production and Inspection op Documents. 1. Order to make Affidavit of Documents, and for Inspection at Solicitor's Office. Upon the application of the Pit {or Deft] A., and upon hearing the solicitor for the applicant and for the Deft {or Pit] B., It is ordered, that the Deft [or Pit] B. do, within (seven) days after ser- vice of this order, make and file a full and sufficient affidavit, stat- ing whether he has or has had in his possession or power any, and (if any) what documents relating to the matters in question in this cause [or action] and accounting for the same ; And it is ordered, that the Deft \or Pit] B., do, at aU seasonable times, upon reason- able notice, produce at the office of Mr. , his solicitor, situate at &c. , the documents which by such affidavit shall appear to be in his possession or power, except such of the same (if any) as he may by such affidavit object to produce ; and the applicant, his solicitors and agents, are to be at liberty to inspect and peruse the documents so produced, and to take copies and abstracts thereof, and extracts therefrom, as the applicant shall be advised, at his expense ; And it is ordered that the said Deft \or Pit] B. do produce the same upon any examination of witnesses in this cause [or action] , and at the hearing [or trial] thereof, as the applicant shall require ; And the applicant is to be at liberty to make such farther application as to all or any of the documents mentioned in such affidavit as he may be advised. The affidavit must go to documents, which the deponent has had in his possession or power, and not only those he has : see Lethbridge v. Cronk, 23 W. B. 703; Anon., W. N. (76) 38. 80 DISCO^T. [PABT 11. 2. Order for Affidavit — and for Deposit of Documentg in Court. Upon the application &c. [Form 1] ; And it is ordered, that the said Deft [or Pit] B. do, within (seven) days after filing such aflS- davit, produce and leave with the clerk of records and writs the documents which, bj' such aflfldavit, shall appear to be in his pos- session or power, except such of the same (if any) as he may by such aflSdiavit object to produce ; And the applicant, his solicitors and agents, are to be at liberty to inspect and peruse the documents so produced and left, and to take copies and abstracts thereof, and extracts therefrom, as the applicant shall be advised, at his ex- pense ; And the clerk of records and writs is to produce the same upon any examination of witnesses in this cause [or action] , and at the hearing [or trial]. thereof, as the applicant shall require; And the applicant is to be at liberty to make such farther applica- tion as to all or any of the documents mentioned in such affidavit as he may be advised. 3. For Inspection, with Leave to seal up. And Let the Pit, his solicitors and agents, be at liberty, at all seasonable times, upon giving reasonable notice, to inspect &c. [Form 1, p. 29] ; But previously to the said inspection the said Deft is to be at liberty to seal up such parts of the said documents as according to an affidavit to be made by him do not relate to the matters in question in this cause [or action] ; And Let the said Deft produce tlie said documents upon any examination of wit- nesses in this cause [or action], and at the hearing [or trial] there- of, as the Pit shall require. For an order specifying certain entries in accounts which alone were to be inspected, see Firkins v. Lowe, 13 Price, 193. 4. Order for Affidavit and for Inspection at Solicitor's Office — Against two or more Parties. Upon the application of the Pit [or Deft] A., and upon hearing the solicitor for the applicant, and for the Defts [or Pits] B. and C. [or B., C, and D.], It is ordered that the Defts [or Pits] B. and C. [or B., C.*, and D.] do within &c. [Form 1, p. 29] make and file a full and sufficient affidavit, or full and sufficient affidavits, stating whether they or either [or any] of them have or have had, or has or has had in their or his possession or power any, and (if any) what documents relating to the matters in question in this CH. rv. S. I.] PRODUCTION AND INSPECTION OP DOCUMENTS. 31 cause [or action] and accounting for the same ; And it is ordered, that the said Defts [or Fits] do, at all seasonable times, upon reasonable notice, produce at the office of Mr. , their solicitor, situate at &c., the documents which, by such affidavit or affidavits, shall appear to be in their or his possession or power, except such of the same (if any) as they or either [or any] of them, may, by such affidavit or afSdavits, object to produce, and the applicant, his solicitors and agents, are to be at liberty to inspect &c. ; And it is ordered that the said Defts [or Pits] do produce &c. [Form 1, p. 29.] 6. The Like — And for Deposit in Court — Against two or more Parties. Upon the application &c. — Directions for making afiSdavit, as in Form 4 ; And it is ordered that the said Defts [or Pits] B. and C. [or B., C, and D.] do, within (seven) days after filing such affidavit or affidavits, produce and leave with the clerk of records and writs the documents which by such affidavit or affidavits shall appear to be in their or his possession or power, except such of the same (if any) as they or either [or any] of them may by such affidavit or affidavits object to produce ; And the applicant, his solicitors and agents, are to be at liberty to inspect and peruse &c. [Form 2, p. 30]. 6. The Like — And for Inspection — Against a Public Body. Upon the application of &c. [Form 1, p. 29], It is ordered, that the Pits [or Defts] do, within &c., file a full and sufficient affidavit, to be made by their clerk or secretary, stating whether the Pits [or Defts] have or have had in their possession or power any, and (if any) what documents relating to the matters in question in this cause [or action], and accounting for the same ; And it is ordered that the Pits [or Deflts] do, at all seasonable times, upon reason- able notice, produce at the office of Mr. , their solicitor, situate at &c., the documents which, by such affidavit, shall appear to be in their possession or power, except such of the same (if any) as they may by such affidavit object to produce ; And the applicants, their solicitors and agents, are to be at liberty to inspect &c.[ Form 1, p. 29]. — Byde Commrs. v. Isle of Wight Ferry Co., V.-C. W. in Cham., 19 Feb. 1861, against Pits ; Bangers. Great Western By., 4 D & J. 74, against Defts. 32 DISCOVERT. [PAET H. 7. Order for Production and Inspection of Documents referred to in an Affidavit or Pleading. Let the Pit [or Deft] A. at all seasonable times and on reason- able notice produce at the oflBlce of Messrs. B., his solicitors,, situ- ate at , the several documents referred to in his affidavit filed the day of [or in the Pit's statement of claim, or Deft's statement of defence, &o. Mention the pleading or affidavit in which the documents are referred to, and specify any particular documents required, and the paragraphs that refer to them, and the schedule, if any, or except any documents not required fa be produced.'] And the applicant, his solicitor and agent, are to be at liberty to inspect &c. [Form 1, p. 29]. And Let the Pit [or Deft] A. produce the same upon any examination of witnesses in this cause [or action], and at the hearing [or trial] thereof, as the appUcant shall require. 8. Por Inspection of Documents held not privileged. Upon the application &c. ; and the Judge being of opinion that the documents referred to in the schedules to the affidavit of C, filed &c., are not privileged, except such as are hereinafter men- tioned, It is ordered, that C, the secretary of the Pits, the N. E. Ry. Co., do at all seasonable times, upon reasonable notice, pro- duce at the office of the said Co. at the several documents in the first and second parts of the schedule to the said affidavit, ex- cept &c. [State documents held privileged] referred to in the said schedule ; And it is ordered that the applicant, his solicitors or Hgents, be at liberty to inspect &c. [Form 1, p. 29]. For order directing certain documents, privileged and others, to be pro- duced, and a further affidavit as to others to be filed, see Macfarlan v. Roll, 14 Eq. 580. 9. Order enlarging Time, where Affidavit fled is insiifficient. Upon the application of the Pit [or Deft] A., and upon hearing the solicitor for the applicant, and for the Deft [or Pit] B., and upon reading the order dated &c., and an affidavit of the said Deft [or Pit] filed the day of in pursuance thereof, and the Judge being of opinion that the said affidavit is insufficient, and the said Deft [or Pit], by his solicitor, now applying for further time to file a full and sufficient affidavit. It is ordered, that the time for the said Deft [or Pit] to file a full and sufficient affidavit pur- suant to the said order, be enlarged till the day of [^ CH. IV. S. I.] PRODUCTION AND INSPECTION OF DOCUMENTS. 3S deposit ordered, And it is ordered, that the said Deft [or Pit] have till the day of to produce and leave with the clerk of records and writs, pursuant to the said order, any documents relating to the matters in question in this cause [or action] which, by the aflBdavit so to be made by him, shall appear to be in his possession or power, except such of the same (if any) as he may by such affidavit object to produce ; If so, And it is ordered, that the costs of this application be costs in this cause [or action] ; or that the Deft [or Pit] B. pay to the Pit [or Deft] A. $ for the costs of this application ; or the costs of this application, such costs to be taxed by the Taxing Master in case the parties differ.] For similar order see JVoel v. If., 1 D. J. & S. 469. For order for Defts to make affidavit specifying books in use in the con- duct of their business at Liverpool, witli special directions as to the mode of inspection there and as to sealing up, see Mertens v. Haigh, Johns. 739. Affirmed, 3 D. J. & S. 528. 10. Order for further Affidavit as to particular Documents — Against one Deft. Let p. within &c., make and file a further full and sufficient affi- davit stating whether he has, or has had, in his possession, or power any and (if any) which of the following documents relating to the H Mills, being the matters referred to in the summons taken out by the Pits on the day of , and accounting for the same, that is to say, any letters or copies of letters from or to R., C, and B. or either of them, or from or to any other person or per- sons, or any other documents relating to the said Mills. — Usual directions. — See Warden v. Peddington, 32 Beav. 639. 11. The Like — Against several Defts. Let the Defts F. and G-. on or before &c., or subsequently within four days after service of this order make and file a further full and sufficient affidavit, or full and sufficient aflSdavits, stating whether they or any of them have, or have had, or has had in their or anj- of their possession or power any and (if any) what documents relat- ing to the matters in question in this action, and accounting for the same, particularly the documents referred to in the said affidavit of the Pit and G. filed the day of . — Usual directions. 12. Inspection of Letters from Third Party marked Private, on undertaking not to use them for any Collateral Purpose. And the Pit, by his counsel, undertaking not to use or give in evidence, or cause or wilfully suffer to be used or given in evidence, 3 34 DISCOVERY. [part II. the letters or writings hereinafter referred to, or any copies or copy, abstracts or abstract, extracts or extract, thereof or there- from, or from either of them, or parol evidence of the contents thereof, or any or either of them, in any action or actions (at law) already commenced or hereafter to be commenced against the Defts, or any or either of them, or against them or any or either of them jointly' with any other person or persons, or against the writer of the said letters either alone or jointly with any other person or persons, for any other purpose or purposes whatsoever collateral to this suit ; Let the Defts the Rt. Hon. W., commonly called Lord B. &c., within (four) days after service of this order, at all sea- sonable times upon reasonable notice, produce at the office of their solicitors, Messrs. , situate at , the two letters dated the and days of , and mentioned in the affidavit of , filed the day of , with liberty for the Pit, his solicitor or agent, to inspect &c. — Defts to produce the letters before the ex- aminer or at the hearing as required. — Costs of the appeal to be costs in the cause. — Sopkinson v. Lord Burghley, 2 Ch. 447, following the language of Richardson v. Hastings, 7 Beav. 354. 13. Claimant against Testator's Assets to deposit at Judges Ohamhers suspected Documents used hy him as Evidence — and for Inspection of them hy Witnesses — and of other Documents admitted. Let, notwithstanding the order of , in Phillips v. Groves, dated &c., the claimant P., within (four) days after service hereof, produce and leave until farther order with the Judge's chief clerk such of the several documents as are contained in the said order, and as the Claimant has used as his evidence in support of his claim ; And Let the Claimant, within (four) days after service hereof, produce and leave at the office of Mr. H., at , his so- licitor, the several other documents, letters, papers, and writings, except the briefs and opinions of counsel, admitted bj' the said P., by his said answer and examination, filed on the day of , and the schedules thereto, to be in his possession, custody, or power, and also an alleged letter of the day of , since admit- ted to be in his possession ; And Let the Pit and Deft and the said P., and their solicitors, agents, and witnesses, prior to their examination, be at liberty from time to time to inspect and peruse such of the said documents as shall be so left with the Chief Clerk ; but spch inspection by the said Pit and Deft, their solicitors, agents, and witnesses, is to be made in the presence of the said Chief Clerk and the solicitor for the said P., the Pit or Deft first giving the CH. IT. S. I.] PRODUCTION AND INSPECTION OP DOCUMENTS. 35 names and addresses of such witnesses to the Chief Clerk ; And Let the said Pit and Deft, and their respective solicitors, be at liberty to inspect and peruse from time to time such of the said several other documents, letters, papers, and wi-itings as shall be so left with the said Mr. H. as aforesaid ; and the Pit and Deft are to be at liberty to take copies thereof, or extracts or abstracts therefrom, as they shall be advised, at their own expense ; And Let the Chief Clerk and the said Mr. H. respectively produce the same to the Pit's solicitors, agents, and witnesses, before the Judge, and at the hear- ing of this cause. — Groves v. G*., V.-C. Wood, Kay, xix. 14. Deposit of Mortgage Deed and Policies in Court. Let the Deft K. deposit the said two policies and the indenture of mortgage, dated &c., and made between &e., in a box indorsed In Chancery " J2e Swann, deceased, iSwann v. Kersey, &c.," and de- posit the box so indorsed with the clerk of records and writs. 15. Order for Production of Company^s Books on Cross- examination of their Officer. Let the above-named A., by T. their secretary, produce before the special examiner appointed in these matters, upon the cross- examination of the said T. on his affidavit made in these matters on behalf of the said Co., as their secretary, and filed &c., all the books and papers mentioned in the notice to produce, dated &c., given to the said T., or such of the said books and papers as may be in the possession or power of the said Co. — Me Emma Silver Mning Co., 10 Ch. 194. But that this order was to be regarded not as an order for discovery, but in the nature of a subpcsna duces tecum : see lb. 16. Orders for Production in Court and in Chambers enforced by Attachment. Whereas by an order dated &c., it was ordered, inter alia, that the Deft C. should within fourteen days after service of the said order make and file a full and sufficient affidavit, stating whether he had or had had in his possession or power any and (if any) what documents relating to the matters in question in this cause, and accounting for the same ; and It was ordered that the said Deft should, within four days after filing such affidavit, produce and leave with the clerk of records and writs the documents which by sach affidavits should appear to be in his possession or power, ex- cept such of the same (if any) as he might by such affidavit object 36 DISCOVERY. [part II, to produce; and whereas bj' an order dated &c., It was ordered that the Deft should, within four daj-s after service of the said order, leave in the chambers of the V.-C. Sir C. Hall, situate at No. 14 Chancery Lane, London, in the county of Middlesex, the follow- ing account, duly verified by affidavit, that is to say, An account of the rents and profits of a piece of land called &c. , in the writ in this action mentioned, received by the Deft as agent for and on behalf of the Pit, between the day of and the day of . Now upon motion this day made unto this Court bj' counsel for the Pit, who alleged that the Deft has been guilty of a contempt of this Court in not complying with the said orders, and upon reading the said orders and the affidavit of &c.t filed &c., and an affidavit of &c., filed &c., of notice to the Deft, This Court doth Order that the Pit be at liberty to issue a writ of attachment against the Deft for his contempt in not complying with the said orders dated &c. 17. Order on Motion in the N'ature of Exceptions to Answer to Interrogatories. Upon motion &c., by Counsel for the Pits, and upon hearing Counsel for the Defts, and upon reading the affidavit of the Deft C. filed &c., and an Affidavit of the Deft W. filed &c., in answer to the interrogatories delivered by the Pit for the examination of the said Defts respectively. This Court being of opinion that the answer of the Deft C. to the first of such interrogatories, and the answer of the Deft "W. to the first and second of such interrogatories, are insufficient, and that the objections taken to such interrogatories respectively by such affidavits cannot be sustained, doth order that the Deft C. do within fourteen days after service of this order file an affidavit in further answer to the said first interrogatory, and that the Deft W. do within fourteen days after service of this order file an affidavit in further answer to the said first and second inter- rogatories. — Costs of all parties of this application to be costs in the cause. NOTES. DISCOVERT AND PRODUCTION GENERALLY. For the rules of the Court of Chancery as to discovery and production of documents, and that every party to a suit in equity is entitled for the proof of his own case to the benefit of all the evidence, personal and docu- mentary, which can be obtained from his opponents, material to the ques' tions coming on for trial, see Wigram, Hare, and Kerr on Discovery. Sir James Wigram (Law of Discovery, 2d ed. 1840, p. 14) lays down what he calls " the two cardinal rules in the law of discovery," as follows: " First, the right, as a general proposition, of every Pit to a discovery CH. IV. S. I.] PRODUCTION AND INSPECTION OP DOCUMENTS. 37 of the evidences which relates to his case ; and, secondly, the privilege of every Deft to withhold a discovery of the evidences which exclusively relate to his own." In the several "propositions" founded on these two cardinal rules, which he proceeds to formulate, and to the elucidation of which the rest of his Treatise is devoted, his language is equally large. He states distinctly (p. 122) that the expression "every Pit" is meant by him to include a Pit at law, who files a bill for discovery only in equity, as weU as a Pit in equity who seeks relief. He also states (pp. 5 and 6) that the distinction between biUs of discovery and bills for relief, " so far as principle is concerned, has no real existence. . . . The right of discovery is, in both cases, founded upon one and the same principle." Quoted by Earl of Selbome, L. C, in LyeU v. Kennedy, 8 App. Cas. 224, 226. In this case the House of Lords decided that in an action for the recovery of land thg Pit is entitled to disooveiy as to all matters rele- vant to his own and not to the Deft's case. ACTIONS FOR DISCOVERT ONLY. The discovery sought must be material to the relief prayed, or if the action be one for discovery merely, to some other proceedings either pending or intended: Cardale v. Watkins, 5 Mad. 18; in such actions the Pit was entitled to discovery of everything in Deft's possession which would help him in making out his case at law, but nothing else: Ingilby V. Shafto, 33 Beav. 31; Ellice v. Roupell (No. 2), 32 Beav. 812. The Court will give discovery to be used in a compulsory arbitration under the C. L. P. Act 1854, s. 3: Brit. Emp. Shipping Co. v. Sorms, 3 K. & J. 433. But not in aid of a reference by agreement: Street v. Rigby, 6 Ves. 820, 821; though made a rule of Court: Re Anglo-Austrian Bank, 10 L. T. N. S. 369. And see Re Burton, §-c. Co., 31 L. J. Q. B. 62. Demurrers to biUs for discovery in aid of an intended action for libel, Dixon V. Enocli, 13 Eq. 394 (and see ..Greenfield v. Reay, L. R. 10 Q. B. 217) ; and for discovery against shippers of goods bearing counterfeits of Pit's trade-mark, Orr v. Diaper, 4 Ch. D. 92; and of a defence on the ground of illegality, Benyon v. Nettle/old, 3 Mac. & G. 94, were overruled. INTERROGATORIES AND AFFIDAVIT IN ANSWER. As to what was a waiver of contempt by acceptance of answer after time, see Roberts v. Albert Bridge Co., 8 Ch. 753. No answer can be required as to conclusions of law or inference from facts or construction of instruments. But a question of fact must be answered, though it refer to written documents: Hoffman v. PostUl, 4 Ch. 673. Where particular questions are asked as to the contents of certain let- ters which are required to be set out, an answer simply that they contain no such matter, or that if any such letters were written or received, they have not been preserved, is insufficient: Rishton v. Grissell, 14 W. R. 578, 789. As to excepting after the death of the party answering, see Pearse v. Dobinson, 3 Ch. 1. 38 DISCOVERT. [part II. As to referring to books instead of setting out the contents ia an answer, see Drake v. Symes, Johns. 647; Telford v. Buskin, 1 Drew. & S. 148. A Pit could not after a sufficient answer by amending his bill again interrogate on the same matter: Hill v. N. Ry. of Buenos Ayres, 41 L. J. Ch. 69; secus where no sufficient answer had been put in: Neuory v. KU- morey, 11 Eg. 425. A Pit who had filed no interrogatories could not, after a voluntary answer, entitle himself, by amending, to interrogate upon the whole bill, except by leave of the Court: Denis v. Bochussen, 4 Jur. N. S. 298, V.-C. W. An answer stating that the Deft had already answered precisely similar interrogatories filed in an action at law by the same Pit, touching the same subject, was held insufficient: Hudson v. Orenfell, 3 GifE. 388, 5 L. T. N. S. 417. As to interrogatories in actions of slander, see Atkinson v. Fosbrook, L. R. 1 Q. B. 628; of libel, Hill v. Campbell, L. R. 10 C. P. 222; Green- . field V. Reay, L. R. 10 Q. B. 217; Tupling v. Ward, 7 Jur. N. S. 314; M'Loughlin v. Dwyer, Ir. Rep. 9 C. L. 170; and in action for malicious arrest &c., McFadzen v. Liverpool, L. R. 3 Ex. 279; for seduction, Hodsoll V. Taylor, L. R. 9 Q. B. 79. Pit in a copyright suit is entitled to particular discovery as to the origi- nal sources from which Deft alleges he derived his information: KeUy v. Wyman, 17 W. R. 399. Pits (executors) were allowed to interrogate as to the circumstances of an alleged payment to their testator of the sum claimed by them: HiUs v. Wales, L. R. 9 C. P. 688. INTERR0GAT0KIE8 FILED BT A DEFT. The Deft had the same right to Amend a concise statement and inter- rogatories as he had to amend a cross bill: Crossly v. Dixon, 6 Eq. 332. A Pit company cannot be interrogated: Imperial Mercantile v. Whit- ham, 3 Eq. 89. As to Deft interrogating Pit in action for breach of contract, see Jour- dain v. Palmer, L. R. 1 Ex. 102; and that he can do so as to the amount of damage or Pit's expenses when he does so bond fide that he may know what to pay into Court: Home v. Hough, L. R. 9 C. P. 135; Frost v. Brook, 23 W. R. 260. But not as to witnesses : S. C. ; nor so as to deter from giving evidence at all: Stock v. Ellis, 22 W. R. 17. For a §uit for discovery in aid of the defence to an action for libel, see Macavlay v. Shackell, 1 Bligh N. S. 96; to an action on an illegal agree- ment, Benyon v. Nettlefold, 3 Mac. & G. 94. EVASIVE AND IMPKOPEK INTEKROGATORIES AND ANSWERS. In Read v. Barton, 3 K. & J. 166 ; 3 Jur. N. S. 263, an evasive answer to only one immaterial interrogatory, put in to gain time, after five orders for further time, was ordered to be taken ofE the file; but see Hunter V. Nockolds, 2 Ph. 540; Marsh v. Hunter, 3 Madd. 437; and answers CH. IV. S. I.] PRODUCTION AND INSPECTION OF DOCUMENTS. 39 merely referring to and confirming previous affidavits were taken off the file: Tumer v. Jack, 19 W. R. 433. Refusal to file an answer as complicated, informal, and luicertain, was sustained: Wcdker v. Daniell, 22 W. R. 595. Statements by husband in answer to wife's bill that she had been guilty of adultery were expunged with costs as between solicitor and client: Pearse v. P., 22 W. R. 69. So also were allegations as to frauds uncon- nected with the suit: Christie v. C, 8 Ch. 499; or which had been con- doned long before : Atuiool v. Ferrier, 14 W. R. 1014. For Pit's interrogatories struck out in an action against the publisher of a newspaper for libel, see Wilton v. Brignell, 20 S. J. 121 ; Carter v. Leeds Daily News Co., W. N. (76) 11. Interrogatories as to documents have been struck out : Pitten v. Chatter- burg, W. N. (75) 248; ^nnicot v. Horns, W. N. (76) 9. AFFIDAVIT AND PRODUCTION OF DOCUMENTS. To obtain production of a document as to which there is any dispute, and title-deeds are subject to the same rule, the applicant must show that he has an interest in the document, i. e. that he requires its production for the legitimate purposes of the suit; and that it is, or may be, evidence which may prove, or lead or assist him to prove, his case ; and these points must be admitted by the answer (or affidavit) of the other party: A. G. v. Thompson, 8 Hare, 112 ; and that it is not privileged for any of the reasons given. Where the Defts admitted that the Pit had had an interest under a settlement, but alleged that by subsequent deeds that interest had deter- mined, they had to produce the settlement: Bugden v. South, 3 Jur. N. S. 783; 26 L. J. (Ch.) 425; 5 W. R. 128. The Deft has no right to production until he has put in his answer: Smith V. Lay, 18 W. R. 915; Halliday v. Temple, 8 D. M. & G. 96. The right is not more extensive as against a Pit than a Deft: Minet v. Morgan, 8 Ch. 361; 21 W. R. 467; but see Boyd v. Petrie, 17 W. R. 903, and Hoffmann v. Postill, 4 Ch. 673. Production cannot be ordered when no proceeding has been commenced : Re Burton, §-c. Co., 31 L. J. Q. B. 62; but may be when only an appeal is pending: Re Nat. Funds Ass. Co., 24 W. R. 774. In general the Court has no discretion to refuse to order production of documents not protected by privilege: Bustros v. White, 1 Q. B. D. (C. A.) 423 ; but would not order it where the cause had been set down for hearing, Waters v. Shaftesbury, 12 Jur. N. S. 3; nor where the produc- tion was wanted for a criminal prosecution, S. C. As to what documents the Pit in an action on a marine policy can have produced, see Kellock v. Home, §-c. Co., 12 Jur. N. S. 653. In all cases where documents are produced there is an implied under- taking, which may be enforced by injunction, not to divulge the contents: Wms. V. P. of W. Ins. Co., 23 Beav. 338. And the Court will take care that no vexatious or improper use be made of documents ordered to be produced: Mansell v. Feeney, 9 W. R. 610; and will be cautious where the party producing might be prejudiced thereby outside the case: Carver V. Pinto LeUe, 7 Ch. 90; Heugh v. Garrett, 44 L. J. Ch. 305. 40 DISCOVERT. [part II. On ordering production of letters marked "private and confidential," against the wish of the writer, an undertaking not to use them for any collateral object was required: Hophinson v. Burghley, 2 Ch. 447. The applicant was obliged to accept the oath of the adverse party as to the description, relevancy, and possession of the documents required, and could not adduce evidence to contradict it: Wright v. Pitt, 3 Ch. 809. If the applicant suspected that a document had not been admitted, the course was to apply that the party make a further affidavit; he could not give evidence to prove the possession: Richards v. Watkins, 6 Jur. N. S. 168, even though there was fraud: Reynell v. Sprye, 1 D. M. & G. 656, 712; and where he found that the inquiiy in the common form was not fitted for obtaining discovery as to specific matters, his proper course was to file interrogatories which had to be answered independently of the affidavit of documents: Newall v. Telegraph, Sfc. Co., 2 Eq. 756; and although a general affidavit of documents has been made before: Catt v. Tourle, 18 W. K. 966; but the bill had to be amended, Th(yrpe v. Sutcliffe, 39 L. J. Ch. 712, where a summons for a further affidavit as to a particular deed was dismissed. Secus after decree: Haldane v. Eckford, 7 Eq. 425; and see Forms 12, 13. The documents must be described with sufficient distinctness to enable the Court to enforce its order, and possession must be admitted clearly. It has been held sufficient if the relevancy can be inferred from the de- scription in the schedule, though no express admission of it appear in the ' body of the answer: Storey v. Lennox, 1 My. & C. 525. A party must examine his documents before' answering or making affidavit as to their relevancy, to enable himself to schedule them correctly: Oahhett v. Caven- dish, 3 Swa. 267, n. ; and must show that he has tried to obtain the infor- • mation required from his agents : Glengall v. Fraser, 2 Hare, 99 ; M'Intosh ,v. G. W. Ry.,4:I>. &S. 544. A Pit lost his right to move on an admission of relevancy in the answer by amending his bill, and thereby%ltering his case : Haverfield v. Pyman, 2 Ph. 202; but this depended on the nature and extent of the amend- ment: A. G. V. Thompson, 8 Hare, 118; Evans v. Richard, 1 Sw. 7; and . in Warden v. Peddington, 32 Beav. 639, the Pit was held entitled to a iurther affidavit on account of his amendments. An answer or affidavit of documents, though suspicions, must be taken as true in all motions grounded upon it ; but its untruth may be shown by contradictory statements, by a discrepancy between it and other doou- ' ments already produced, or by the nature of the case: Bowes v. Fernie, 3 M. & C. 632; Greenwood v. G., 6 W. R. 119; or by anything which, appearing on the face of the pleadings, is "enough to raise a reasonable suspicion that the Deft has further documents which may help the Pits to make out their case: " Turner, L. J., in Noel v. N., 1 D. J. & S. 478; Wright v. Pitt, 3 Ch. 809; e. g. where a number of customers' names were given, but no books relating to the business: Saull v. Browne, 17 Eq. 402; and see Mac/arlan v. Roll, 14 Eq. 580; Westm., ^c. Co. v. Clayton, 12 W. R. 123. Books of a solicitor employed by a trustee to receive rent of trust prop- erty need not be mentioned in the trustee's affidavit of documents: Eglinton v. Lamb, 35 L. J. Ch. 113; Colyerv. C, 30 L. J. Ch. 408. Pro- CH. IV. S. I.] PRODUCTION AND INSPECTION OP DOCUMENTS. 41 duction was ordered, at the instance of a purchaser under a decree, of documents relating to the property: Dent v. D., 35 L. J. Ch. 112; and ia a breach of promise case all letters had to be produced: Pope v. Lister, L. R. 6 Q. B. 242. A party must make the aifidavit though there is nothing to show that there are any documents: The Minnehaha, L. R. 3 A. & E. 148; and though he has good grounds against producing the documents; and he must describe them with sufficient distinctness to enable the Court to order production of them, if the objection be disallowed: Fortescue v. F., 24 W. R. 945; Bovill v. Cowan, 5 Ch. 495; Hamilton v. Nott, 16 Eq. 112; and though he has claimed privilege by his answer: Quin v. Ratcliff, 9 W. R. 65; 6 Jur. N. S. 1327; and see Form 8, sup. p. 32; Lazarus v. Mozley, 5 Jur. N. S. 1119 ; and time will be given for making a further affidavit: S. C. , But it seems that documents for which privilege is claimed as relating to the party's own title only are sufficiently described by giving their dates: Taylor v. Oliuer, 84 L. T. N. S. 902. Production was ordered on a Pit's application after replication : Lafone V. Falkland Isl. Co., 4 K. & J. 38, 6 W. R. 4; Parkinson v. Chambers, 1 K. & J. 72. Where Pit was shown at Deft's office a letter-book, inspection of which was refused till counsel's opinion had been taken, and Deft subsequently asserted he had lost the book, an attachment was ordered: Mornington v. Keene, 4 W. R. 793. An application for an affidavit of documents, being a cheap and easy proceeding, the old interrogatory as to documents was discouraged, and no exceptions to the answer to it were allowed: Piffardy. Beehy, 1 Eq. 623; Barnard v. Hunter, 19 Jur. 1065; 4 W. R. 34. PRODUCTIOSr OF DOCUMENTS — PUBLIC BODIES. It was at one time doubted (Law v. Indisputable, &c. Co., 10 Hare, xx.), but afterwards settled, that where production of documents was required from a company, the secretary or some other officer should make an affi- davit: see Ranger v. G. TT. i2., 4 D. & J. 74; and see Ryde Commrs. yt^ I. of W. Ferry Co., Form 6, p. 31. This appears to be unaltered by the new rules. The clerk of a company making affidavit that the docu- ments were in the custody of the warden and court of assistants, and that without their leave he had not access to them, but not stating that he had asked leave and been refused, had to make a further affidavit: A. G. y. Mercers' Co., 9 W. R. 83, 3 L. T. N.'S. 4'38 (W.); and after an affidavit by directors that they had no documents in their possession other than those in the possession of the company, a further affidavit by them that they had no documents whatever in their possession or power, was held insufficient: Clinch y. Financial Corp., 2 Eq. 271. But it is for the corporation, and not the person requiring the discovery, to name the person to give discovery, so that an original suit could not be stayed until a person made Deft to a cross bill for purposes of discovery had appeared to the cross bill: Rep. of Costa Rica v. Erlanger, 1 Ch. D. 171. And now by Ord. 1875, xxxi. 4, if any party to an action be a 42 DISCOVERT. [part II. " body corporate-or joint-stock company, whether incorporated or not, or any other body of persons empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person," an order may be made at Chambers allowing any opposite party to deliver inter- rogatories to any member or officer of such corporation, &c. This rule does away with the previous practice in Equity of making the secretary, or some officer against whom no relief was claimed, a party for the pur- poses of discovery only: Wilson v. Church, 9 Ch. D. 552. Def ts who stated in their answer that they had been, but were no longer, treasurers and trustees of the society, could not be ordered to produce documents in tte society's possession: Penney v. Ooode, 1 Drew. 474; and where the officers have been changed since the transaction, see Moline v. Tasmanian Ry. , 32 L. T. N. S. 828 ; and that they cannot evade giving discovery by resigning: Acomh v. Landed Est. Co., 14 W. R. 387. The solicitor of a company is not an "officer" of it: Brown v. Thames, Ifc. Co., 43 L. J. C. P. 112. As to production of a company's books by the secretary on his cross- examination, under a subpcena duces tecum, see In re Emma Mine, 10 Ch. 194. In an action against a municipal coi-poration for malicious arrest &c., the town clerk was interrogated: McFadzen v. Corp. of Liverpool, L. R. 3 Ex. 279. And a town clerk made affidavit of documents on behalf of Pits: C. of Hastings v. Ivall, 8 Ch. 1017. PRODUCTION OF DOCUMENTS — POSSESSION Possession of an agent is the possession of the principal, so that a party to an action must produce documents with his agents: Morrice v. Swaby, 2 Beav. 500, and all that he has a right to inspect are in his power, though wrongfully withheld: Taylor v. Rundell, 1 Ph. 222; unless they are held by the agents as agents for others also: Edmonds v. Foley, 10 W. R. 210 {et inf.); or are their own property, Colyer v. C, 9 W. R. 452; 30 L. J. Ch. 408 ; Morrice v. Swaby, sup. ; Farquharson v.. Balfour, T. & R. 184. A party to an action is not bound to produce documents deposited by him as a security for money lent before the institution of the suit, if too poor to redeem them: North v. Huher, 7 Jur. N. 8. 767; 29 Beav. 437, following Re Williams, 7 Jur. N. S. 32.3, L. JJ. ; nor letters . pawned by him with other goods before the suit commenced: LiddeU v. Norton, Kay, xi. But documents must be produced, although subject to a soUeitor's lien, and he must be paid aS. if necessary: Eij). Shaw, Jac..270; Rodich v. Qandell, 10 Beav. 270 ; this only refers, however, to a parly's own solicitor: Palmer v. Wright, 10 Beav. 234; but it holds good against a bankrupt unless he really cannot get the documents produced: Vale v. Qppert, 10 Ch. 340 ; and a bankrupt must state what documents have passed to his trustee : Anon.,W.J>i. (76)38. Documents in the joint possession of a Defi; and others, who have an interest in them, are protected: Reid v. Langlois, 1 M. & G. 627; Ketdewell v. Barstow, 7 Ch. 686; and an order to produce a deed, admit- ted to be in the joint possession of two Defts, was, after the death of CH. IV. S. I.] PRODUCTION AND INSPECTION OP DOCUMENTS. 43 one, refused in the absence of his represeutatires: Robertson y. Shetoell, 15 Beav. 277 ; an application that a Deft should produce documents in the possession of an agent for himself and his co-tenant in common, not a party to the suit, was refused with costs : Edmonds v. Foley, 30 Beav. 282 ; 10 W. R. 210; Murray v. Walter, Cr. & Ph. 114; but see Walburn v. IngUby, 1 M. & K. 61. A party cannot be ordered to produce documents relating to a com- promise between him and non-parties: Warwick v. Q. Coll. Ox., 4 Eq. 254; Bagnall v. Carlton, W. N. (76) 215 ; but in Hutchinson v. Glover, 1 Q. B. D. 138, it was held that in an action against shipowners for damage to cargo, compromises of other suits must be produced. And a Pit in a patent suit was bound to answer as to compromises of other suits by him with refer- ence to the same patent: Beits v. Neilson, W. N. (66) 170. Where private accounts between the Pit and Deft had been entered in books of a part- nership between Deft and his father, who refused to allow production, an order against the father was refused: Hadley v. Macdaugall, 7 Ch^ 312; and as to producing partnership books on a subpoena duces tecum : A. G, V. WUson, 9 Sim. 526; and see Richards v. Watkins, 6 Jur. N. S. 168. Pro- duction was refused against a Deft in the absence of a co-Deft with whom he had deposited the document: Burbidge v. Robinson, 2 M. & G. 244; but possible injury to the mortgagor did not entitle a mortgagee to resist production of the mortgage deeds to persons interested in. the mortgage money: Goagh v. Offley, 5 D. & S. 653. The affidavit or answer must show that the party cannot produce the documents, and it is not enough to say, that to the best of the deponent's information and belief, the person in whose custody they are will not produce them: Taylor v. Rundell, Cr. & Ph. 104; and see Mertens v. Haigh, 11 W. R. 792; 3 D. J. & S. 528; and the nature of the joint possession must be shown: Bovill v Cowan, 5 Ch. 495. In Kearsley v. Philips, 10 Q. B. D. 36, 37 note, at chambers, Mr. Justice North said that this passage is incorrect, and ruled accordingly. This was an action for the seizure of the goods of the Pit on certain premises which was justified by the Def ts under an alleged power of distress in a mortgage deed. The Deft stated in his affidavit of documents that he and one B. jointly had in their possession or power certain documents speci- fied in a schedule to such affidavit, and that they were the muniments of title of himself and the said B. to the premises as mortgagees thereof. The affidavit further stated that the Deft objected to produce such docu- ments. B. was no party to the action. The Court of Appeal held that such affidavit showed sufficient reason for not making an order for inspec- tion of the documents, following Murray v. Walter, Cr. & Ph. 114, and discussing Walburn v. Ingilby, 1 My. & K. 61, and Hutchinson v. Glover, 1 Q. B. D. 138. The decision in Murray v. Walter does not depend on the ground of the want of parties, but on the principle that the Com't will not compel a man to disclose another man's deed. The true ground of the decision is that you cannot, in an action against a man who has possession of a deed conjointly with another, that is to say, whose posses- sion, there being a joint title, is in law the possession of himself and another, compel production by him of the deed which belongs to another man as well as himself. Per Field, J., 10 Q. B. D. at p. 42. 44 DISCOVERT. [PAET II. It is DO ground for resisting production that other persons have an interest in the documents: Kettlewell y. Barstow, 7 Ch. 686; Re Turner, 24 W. R. 54; Bknkinsopp v. B.,2 Ph. 607; nor that it -will disclose names of customers and trade secrets: Howe v. M'Kernan, 30 Beav. 547; as to documents of a partnership in possession of the Defts (shareholders), see Glyn V. Caulfield, 3 Mac. & G. 463. When Pit had obtained production of a document from a Deft, a motion by another Deft that Pit produce it to him was refused in the absence of the first: Reynolds v. Godlee, 4 E. & J. 88. An allegation that deeds are in the possession of the Defts, or some of them, will not sustain the suit against one of them who has no interest : Weise v. Wardle, 19 Eq. 171 ; and see M. of London v. Levy, 8 Ves. 398. IMPEACHED DOCUMENTS. In a suit to impeach a deed, the court refused to order production of it on motion: Tyler v. Drayton, 2 S. & S. 309; secus where it was charged and not denied that the alleged fraud appeared on the deed: Kennedy v. Green, 6 Sim. 6 ; and in a suit to set aside as fraudulent a bill of sale, or to redeem it if valid, the bill of sale was on motion ordered to be pro- f. duced: Neate v. Latimer, 2 Y. & C. 257; 11 BUgh N. S. 149; 4 CI. & F. ^ 570; all documents subsequent to that which is impeached must be pro- duced: Jones V. /., Kay, vi. ; Cannock v. Jauncey, 1 Drew. 497. Where the answer stated a release not anticipated by the biU, without volunteer- ing to produce it, the Deft was not to produce it until the hearing: Atkyns'~^ V. Wright, 14 Ves. 211; and the court ordered a mortgagee, who had been solicitor to the mortgagor; to produce the mortgage deed which was impeached: Davis v. Parry, 4 Jur. N. S. 431; 27 L. J. (Ch.) 294; 6 W. E. 174. A mere allegation that a mortgage is invalid wiU not protect it from ^ production: Crisp v. Platel, 8 Beav. 62. Where an executor (Deft) alleged that the testator's signature to a re- ceipt relied on by the Pit was a forgery, he produced numerous checks signed by the testator; but was not bound to produce others which he alleged to be forgeries: Wilson v. Thornbury, 17 Eq. 517; but see Groves V. G., Kay, xix.; Boyd -7. Petrie, 3 Ch. 818. INSPECTION. The new practice as to inspection appears to be the same as that pre- viously in force in Chancery. If a party state that dociunents in his possession are in daily use at his place of business, the order will be that the applicant be at liberty to in- spect them there; and if he cannot obtain a satisfactory inspection there, he may apply for a further order: Orane v. Cooper, 4 M. & C. 263; and see Maund v. Allies, lb. 508; Momington v. Keane, 4 W. K. 793; Oard- , ner v. Dangerfield, 5 Beav. 389; Mertena v. Haigh, Johns. 735; 11 W. R. 792 ; 3 D. J. & S. 528. And generally where inspection will suffice, and deposit in Court will be an injury to the Deft, the latter is not ordered: M. of Berwick v. Murray, 1 M. & G. 580. Where inspection is ordered CH. IV. S. I.] PRODUCTIOSf AND INSPECTION OF DOCUMENTS. 45 at the solicitor's office, he is not allowed to charge for it: Woodroffe v. Daniel, 10 Sim. 126 ; Flockton v. Peake, 12 W. R. 1023. Under the common order to inspect, a party may take notes and make copies of any part not sealed up: Coleman v. W. Hartlepool Ry., 5 L. T. N. S. 266; Form 1, sup. p. 29. The order directs production to the pai'ty, his solicitors and agents, see Forms 1-6, pp. 29-31 ; an undertaking to produce to a party implies pro- duction to his solicitor and agents, though not named: Wms. v. P. of W. Ins. Co., 23 Beav. 338. The term " agent" does not include other Defts: Bartley v. B., 1 Drew. 238; nor a relative, though the only person conversant with the accounts: Summerfield v. Prichard, 17 Beav. 9; nor a professional accountant ap- pointed pro re nat&, unless by special order: Bonnardet v. Taylor, 1 J. & H. 383; and see Swansea Vale Ry. v. Budd, 2 Eq. 274, where the Deft's surveyor was allowed to see plans, &c., on which the issue mainly de- pended. A special order is required for inspection by intended witnesess, and will only be made on special grounds: Boyd v. Petrie, 3 Ch. 818 ; as where the genuineness of signatures is disputed: Groves v. 0., Kay, App. xix. As to inspection for verifying copy by witnesses, see Phelps v. Prew, 3 E. & B. 430, 18 Jur. 245. SEALING UP PART. A party swearing that parts of documents were immaterial was allowed to seal them up, producing the rest: Gerard v. Penswick, 1 Swa. 533; Mansell v. Feeney, 9 W. R. 610, Form 3, sup. p. 30. As to what portion of their books, and of letters relating to sales, the Defts in a trade-mark case could seal up, see Carver v. Pinto Leite, 7 Ch. 90. The question of materiality is more strictly sifted where the discov- ery is such that it might be used to prejudice the party making it inde- pendently of the suit: S. C, and see Heugh v. Garrett, 44 L. J. Ch. 305. An answer admitting possession of documents without claiming privi- lege was allowed to be qualified by an affidavit (at Deft's cost: Smith v. Massie, 4 Beav. 417), so as to protect portions or the whole of them: Curd V. C, 1 Hare, 274, affirmed on appeal; and see Blenkinsopp v. B., 10 Beav. 277 ; liberty to seal up or not to deposit may be given after affidavit ad- mitting possession : Talbot v. Marshjield, 1 Eq. 6 ; on a motion for pro- duction of documents sealed up by the Deft, the M. R. himself examined them, and, having satisfied himself that they might possibly serve the Pit, allowed him to inspect them: Caton v. Lewis, 22 L. J. Ch. 946; and so Wood, V.-C, where the affidavit was not explicit: Lafone v. Falkland Islands Co., 4 K. & J. 34; 27 L. J. Ch. 25; 6 W. R. 4; and see The Mac- Gregor Laird, L. R. 1 Ad. & E. 307; Bustros v. White, 1 Q. B. D. (C. A.) 423 ; and for the practice where a right to seal up is desired or claimed, see 1 Smith, 939. As to allowing inspection of certain entries only in books, see Firkins v. Lowe, 13 Price, 193; Goodall v. Little, 1 Sim. TS. S. 155; in partnership books, see In re Pickering, Pickering v. Pickering, 25 Ch. D. 247. On a question of identity of land, all parts of deeds which did not relate 46 DISCOVERY. [PAET II. to parcels were sealed up: Earp v. Lloyd, 3 K. & J. 549; Luscombe v. Steer, 37 L. J. Ch. 119. The bocks of a railway were produced, with liberty to seal up parts irrelevant or otherwise privileged: Wilson v. Northampton, Sj-c. RaUway, 14 Eq. 477. EESISTANCE TO DISCOVERY AND PRODUCTION. The first objections, to discovery and production are those which deny the Pit's right of suit generally; for in suits for relief the right to dis- covery depends on the right to relief. Such objections may be taken — by Demurrer. Under the old practice no discovery could be compelled pending a de- murrer to the whole bUl: Dan. 466, 1689; Wigram, 25. This was on general principles, and though the new rules make no provision for it, it will, it is apprehended, remain the same. It was not a sufficient objection to discovery that the bill was open to demurrer if not actually demurred to: Mason v. Wakeman,2 Ph. 516; and see Elmer v. Creasy, 9 Ch. 71. But see Adams v. Fisher, 3 My. & C. 526. At common law, on demurrer (although allowed), advantage could in general be taken of any substantial defect in the pleadings of the party demurring: 1 Wms. Saund. 431. Thus on demurrer to a plea' (in bar though not to a plea in abatement unless substantially a plea in bar, see Dundalk Railway v. Tapster, 1 Q. B. 667), a defect in the declaration could be relied on: 1 Wms. Saund. 431. The following grounds of resisting discovei-y have been set up by de- murrer: — 1st, If the Pit's case, being for relief, fail to show on the face of it a title to the relief sought, it is demurrable, and a demurrer to relief is a bar to discovery: see Evanr. Portreeve, Sfc. of Avon, 29 Beav. 152; 6 Jur. N. S. 1361; 9 W. K. 84; 30 L. J. Ch. 165. A demurrer by a corporation, made Defts only to give discovery, and against whom no relief was asked, was allowed: Saunders v. S., 3 Drew. 387 ; but a bill, demurrable if asking relief, as a bill for an account and to stay an action, could sometimes, if the prayer for relief were omitted, be sustained as a bill for discovery: Frietas v. Dos Santos, 1 Y. & J. 574; for the suit must be for discovery or relief primarily, and whichever it be for, the other must be made ancillary by the frame of the suit: S. C. For the practice on demurrer to interroga/- tories as distinguished from demurrers to bills, see Parkhurst v. Lowten, 3 Madd. 123. A bill for discovery did not, by a general prayer for relief, become a bill for relief: South Eastern Railway Co. v. Submarine Telegraph Co., 18 Beav. 429; but it did by praying costs: Morg. & D. 148; or an ac- count : Frietas v. Dos Santos, 1 Y. & J. 574. A bill for discovery only, where the facts stated by the bill were insufficient to sustain the suit, ac- tion, or defence to be aided, was demurrable: Smith v. Fox, 6 Hare, 386; or if no answer that could be given by the Deft could possibly be mate- rial: CodringtonY. C.,3 Sim. 519. In a suit for relief, the right to relief does not necessarily fall with the right to discovery: A. G. v. Brown, 1 Swa. 294. 2dly, On account of the object of the suit or action; as where the suit CH. IV. S. I.] PRODUCTION AND INSPECTION OP DOCUMENTS. 47 was to set aside a bond, after a verdict, on the ground of immoral consid- eration, which might have been made a defence to the action : Franco v. Bolton, 3 Ves. 368 ; but a bill for discovery, after a verdict, pending an application at law for a new trial, was supported: Field v. Beaumont, 1 Swa. 209 ; and see Protkeroe v. Foreman, 2 Swa. 227 ; and in aid of exe- cution, to discover where judgment debtor's lands were situate: Mountford V. Taylor, 6 Ves. 788; and see 10 Hare, 48, n. But suits for discovery in aid of actions on illegal agreements, King v. Burr, 3 Mer. 698 ; or of actions which, being founded on a felony, might subject the Deft to criminal proceedings, CartwrigU v. Oreen, 8 Ves. 405, were demurrable. And discovery will only be granted in aid of civil proceedings, including, however, an action for libel, although the Deft might have been indictable, by Lord Eldon in Maoaiday v. Shackell, 1 Bligh JT. S. 96. , 3dly, That the Court in which the action sought to be aided is brought itself possesses power to compel discovery: E. of Derby v. D. of Athol, 1 Ves. 205 ; but the Court of Chancery continued to exercise its jurisdic- tion after new powers had been given to other Courts by statute: see Morris v. Norfolk, 9 Sim. 472; and to the Courts of law: Brit. Emp. Shipping Co. v. Somes, 3 K. & J. 433; and to the Probate Court: see Fuller V. Ingram, 5 Jur. N. S. 513; 7 W. R. 302; 28 L. J. Ch. 432. ithly, On grounds peculiar to the demurring Deft, such as that he had no interest in, or was not a party to, the suit or action, and the evidence required from him could have been obtained by making him a witness : Plummer v. May, 1 Ves. 426; Fenton v. Hughes, 7 Ves. 290; Irving v. Thompson, 9 Sim. 17 ; Kerr v. Rew, 5 My. & C. 154. And a corporation might demur if the evidence required could be obtained from their officer: Saunders y. S., 3 Drew. 387; and semble, the alteration of law as to admitting the evidence of parties and witnesses did not alter this rule : LoveU v. Galloway, 17 Beav. 13; and a bill for discovery could not be supported by an allegation that the Pit had a right of action against the Defts, or some of them. Pit has a right of discovery against that person only against whom he avers that he intends to bring the action: Mayor of London v. Levy, 8 Ves. 398, 405. Officers and agents pf corporate bodies have sometimes been made par- ties for discovery: Bummery. Corp. of Chippenham,14: Ves. 246; and agents, &c., of individuals in suits charging them with fraud or misconduct and praying costs against them: Le Texier v. Margravine oj Anspach,. 15 Ves. 159; Lewis Y. Pennington, 8 W. R. 465, 6 Jur. N. S. 478; and see Atwood V. Small, 6 CI. & Fin. 352. And as to what fraud entitles Pit to make an agent a party, see Marshall v. Sladden, 7 Hare, 428 ; and that it must be distinctly alleged, see Kelly v. Sogers, 1 Jur. N. S. 514; and see Kerr on Fraud, 312, 326, 327. HESISTING DISCOVERY — BY PLEA. Under the old practice, no answer was necessary where no facts were stated or charged in the bill, which, if left uncontradicted, would have disproved the plea: Thing y. Edgar, 2 S. & S. 274; Sanders v. King, lb. 277; 6 Madd. 61. 48 DISCOVEET, [PAET II, A plea of the Statute of Frauds, or of Limitations, had to be supported by answer to special circumstances charged as taking the cases out of the statutes : Evans v. Harris, 2 V. & B. 36 ; Parkinson v. Chambers, 1 K. & J. 72 ; 3 W. R. 130. So a Deft pleading a purchase for value without notice had to answer matters specially alleged as evidence of noti-ie: WaUviyn v. Lee, 9 Ves. 24; Pennington \. Beechey, 2 S. & S. 282. And a plea of purchase for value denying constructive notice, without an answer as to facts alleged to show constructive notice, was bad: Jarrard v. Saunders, 2 Ves. 187. A plea that discovery might subject the Deft to penalties did not require the support of an answer: Claridge v. Eoare, 14 Ves. 59. And generally as to cases in which a plea had to be supported by an answer, see Dan. 528 et seq. ; Wigram, 171. In a partnership suit Deft could not by a plea of no partnership avoid discovery material to the question of partnership or not: Mansell v. Feeney, 2 J. & H. 320, 9 W. R. 532; Harris v. H., 4 Hare, 184; nor by denying the partnership by his answer, resist production of the books: Ferrier v. Attwood, 12 Jur. N. S. 365; 14 W. R. 582, 597; and see Haw- kins V. Carr, L. R. 1 Q. B. 89; Jackson v. Ward, 18 W. R. 973; Tranter V. Goodman, W. N. (76) 169. RESISTING DISCOVERT — BY ANSWER. If a Deft neither demur nor plead, he must answer fully, and he cannot protect himself altogether from discovery by denying by answer the Pit's right of suit. By electing to defend by answer, he waives his right of defence by demurrer, and agrees to give the Pit the discovery to which he would, ou the assumption that his equity is admitted, be entitled : Wig- ram, Disc. 89; and see Shaw v. Ching, 11 Ves. 304; Lancaster v. Evors, 1 Ch. 351 ; Unsworth v. Woodcock, 3 Mad. 432 ; Bleckley v. Bymer, 4 Drew. 248. And this applies to a Pit's answer to interrogatories: Hoffmann v. Postal, 4 Ch. 673. In Adams v. Fisher, 3 My. & C. 526, where an executor sued the Deft as solicitor to the estate, and prayed an account, and the 'Deft by his answer denied that he was such solicitor. Lord Cottenham refused produc- tion of documents, admitted to be in his possession, relating to the estate ; and see De la Rue v. Dickinson, 3 K. & J. 388. But Adams v. Fisher has been much questioned: see contra, Cleggy. Edmondson, 22 Beav. 125; S. C. compromised, 3 Jur. N. S. 299, L. JJ. ; Great Litxembourg Ry. Co. V. Magnay, 23 Beav. 646, afE. L. JJ. ; Reade v. Woodroffe, 24 Beav. 421 ; and Lord Lyndhurst's remarks on Adams v. Fisher in Lancaster v. Evors, 1 Ph. 349; and Lord Selborne's in Elmer v. Creasy, 9 Ch. 71; Hawkins v. Carr, L. B. 1 Q. B. 89; Robson v. Flight, 33 Beav. 268; Hills v. Wates, L. R. 9 C. P. 688. The present rule is clearly shown in Saull v. Browne, 9 Ch. 364 ; that a Deft answering must always answer fuUy, although the case is one in which the Deft's case depends on a variety of circum- stances, BO as to prevent his putting in a plea, and though he denies the Fit's case in toto, unless he can show that the discovery is sought vexatiously or oppressively, or is such as to be burdensome and injurious to him, and never likely to be used. In such cases, under Ord. 1875, XXXI. 19, discovery or inspection may be made to await the decision of CH. IV. S. I.] PRODUCTION AND INSPECTION OP DOCUMENTS. 49 any question or issue, e.nd under r. 5 irrelevant, scandalous, or mal6 fide interrogatories may be expunged: see Fisher v. Owen, 8 Ch. D. 845; Wood V. Anglo-It. Bk., 34 L. T. K. S. 255; Lamb v. Munster, 10 Q. B. D. 112. A full answer is one which answers all interrogatories which are mate- rial to the points to be decided at the trial, and as to which no valid claim of privilege is set up. Production follows the same rule. And where Pit's right to a particular account is denied, but the Deft makes admissions srSScient for all purposes up to and including the decree, the Deft need not give any further details respecting the account : Lockett V. L., 4 Ch. 340; De la Rue v. DicHnson, 3 K. & J. 388; but an executor must set out his accounts though he deny the Pit's right of suit as a creditor, but need not set them but in detail: Tliompson v. Dunn, 5 Ch. 573 ; 18 W. R. 334, 854; Cull v. Inglis, 37 L. J. Ch. 385 ; 16 W. E. 477; but see KeUlewell v. Barstow, 7 Ch. 686. The Court will not enforce discovery of matters useless to the Pit for the hearing, and likely to be injurious to Deft if Pit should fail at the hearing: Heugh v. Garrett, 44 L. J. Ch. 305; nor need a Deft answer as to items of a settled account which Pit does not seek to set aside: Wier v. Tucker, 14 Eq. 25. Discovery to show the amount of damage was not given until the question of liability had been decided, the two questions being severable: Elkin v. Clark, 21 W. R. 447. A partner cannot be made to set out partnership accounts in his answer : Lockett V. L., 4 Ch. 336, and see Wier v. Tucker, 14 Eq. 25; nor a Pit to set out correspondence between him and a third person, an order to inspect which could be obtained, and a Pit could refer to paragraphs in his bill as answering certain interrogatories: Hoffmann v. Postill, 4 Ch. 673; and see Wigram, 197-199. But see Turner v. Jack, 19 W. R. 433. An exception might be partly good: S. C. The ordinary interrogatory as to documents should be avoided, and need not be answered, but if it is, it must be answered fuUy: Piffard v. Beeby, 1 Eq. 623. But a Deft in a suit for waste was bound to answer as to the number and value, &c., of trees cut down, though he claimed the right to cut them down : Newry v. Kilmorey, 19 W. R. 271. An executor will seldom be protected from discovery of his accounts: Thompson v. Dunn, 5 Ch. 573; 18 W. E. 334, 854; but will in suits by legatees when he admits assets: Forbes v. Tanner, 11 W. R. 414; 9 Jur. N. S. 4.55. A Deft may object to answer a particular question, and to produce a particular document, upon grounds referring specially to the question or document; and the objection to production may be taken by the affidavit of documents, though not mentioned in the answer: Badeley v. Llewellyn, 1 Hare, .525; or happening since the answer: Burbidge v. Robinson, 2 Mac. 6 G. 244. RESISTING DISCOVERY — INQUISITORIAL QUESTIONS. Inquisitorial questions; such as would, were an answer to them com- pelled, make the Court a scourge to the country — need not be answered : Dos Santos v. Frietas, cited Wigi'am, 165; but questions as to the amount of a Deft'si pecuniary resources, whence derived, &c., must, if material, be answered : Newton v. Dimes, 3 Jur. N. S. 583 ; 30 L. T. 30 ; and a Deft required to give an account of partnership transactions was not allowed 4 50 DISCOVERT. [part II. to refuse an account of the debts owing to the firm on the ground that it would disclose the private affairs of the customers : Telford v. RusHn, 1 Dr. & S. 148; Howe v. M'Keman, 30 Beav. 547; and an answer as to private dealings was compelled where fraud was alleged: Garlside v. Outram, 3 Jur. N. S. 39; 26 L. J. Ch. 113; 5 W. R. 35. RESISTING DISCOVERT — CRIMINATING QUESTIONS. Discovery need not be given if it would form evidence or links in a chain of evidence of facts that would expose the Deft — (a) To criminal proceedings: Thorpes. Macaulay, 5 Mad. 218; Macaulay V. Shachell, 1 Bligh N. S. 96; Parkhurst v. Lowten, 2 Swa. 202; Claridge V. Hoare, 14 Ves. 59, where the objection was taken by plea. But where the Deft could object to answering part only, a general demurrer was overruled: A. G. v. Brovm, 1 Sw. 265, 305, 1 Wils. 323. It is for the Court to decide if the answer would form a link in criminatory evidence: Sidebottom v. Adkins, 3 Jur. N. S. 631, 15 W. R. 743; public or private trustees cannot refuse to answer as to corrupt execution of the trust: Dummer v. Corp. of Chippenham, 14 Ves. 245; and see A. G. v. Brown, 1 Swa. 265; M'Loughlin v. Dwyer, Ir. Rep. 9 C. P. 170. A wife may decline to answer on the ground that her answers might subject her hus- band to a charge of felony: Cartwright v. Green, 8 Ves. 405. A corporation cannot decline answering as to matters which could not form the subject of an indictment, or only of a prosecution in Sicily: K. of Two Sicilies v. Wilcox, 1 Sim. N. S. 301, 334; as to refusing to answer or to produce documents after having disclosed enough for a conviction, see S. C. and Ewing v. Osbaldiston, 6 Sim. 608 ; and for a statement of the rule at law as to a witness claiming this privilege, see Adams v. Lloyd, 3 H. & N. 351, 4 Jur. N. S. 590, 6 W. R. 752; the Court of Exch. refused to aUow interrogatories to be filed which the Deft could not have been compelled to answer: Tuplingv. Ward, 7 Jur. N. S. 314; the privilege cannot be claimed after a pardon under the great seal for the supposed crime: R. v. Boyes, 7 Jur. N. S. 1158, 1 B. & S. 311; Lamb v. Munster, 10 Q. B. D. 113. In one of the latest cases on the subject, it was declared that the privi- lege extends to protect a man from answering any question which " would in the opinion of the judge have a tendency to expose the witness, or the wife or husband of the witness, to any criminal charge: " Stephen's Dig. Law of Evidence, 3d ed. art. 120, p. 121. The cases do not go any further than this, viz. that the Court which has to decide must be satis- fied on the oath of the witness that he does object on that gronnd, and that his objection is bond fide. A witness is not forced to answer any question if he swears that the answer " may" or "will" or "would" endanger him (the form in which he expresses it is immaterial), and in the opinion of the judge the answer may, not improbably, be of such a nature as to endanger him: Lamb v. Munster, 10 Q. B. D. 110, 113, 114. In an action of libel Defts were not bound to swear that a letter on which the action was founded would subject them to a criminal prosecu- tion in order to avoid production, because the letter if material at all to Pit's case must have contained criminating matter: Hill v. Campbell, L. R. CH. IT. S. I.] PRODUCTION AND INSPECTION OP DOCUMENTS. ©1 10 C. P. 222; see Greenfield v. Reay, L. K. 10 Q. B. 217; and see Taylor Ev. 1258 et seq: (6) To ecclesiastical censures; as for an incestuous man'iage: Brown- sword V. Edwards, 2 Ves. 243 ; fornication : Finch v. F., lb. 491 ; or simony : Parkhurst v. Lowten, 2 Swa. 214, 215; as to questions tending to degrade the witness, see Taylor Ev. ss. 1313, 1315; Best Ev. 174. (c) To penalties: Short v. Mercier, 3 Mac. & G. 205, S. C. 2 D. & S. 635; but liability, under a private Act, to a penalty for acting as a broker ■without license was no excuse: Robinson v. Kitchen, 8 D. M. & G. 88; Green v. Weaver, 1 Sim. 404. The witness must state his belief that the penalty would be incurred : Scott V. Miller, Johns. 220. The rule does not apply to questions tending to expose the party to penalties under 13 Eliz.'c. 5: May Vol. Conv. 480, 481; Bunn v. B., 4 D. J. & S. 316. (d) To forfeiture of estate; as for assigning a lease without license; or for breaches of covenants in leases : Ld. Uxbridge v. Siaoeland, 1 Ves. 56 ; May V. Hawkins, 3 W. R. 550, 1 Jur. N. S. 600, Exch. ; or by a marriage without consent: Chancey v. Fenhottlet, 2 Ves. 265, 2 Atk. 392; or for waste: lb.. Bolder v. Allington, 3 Atk. 453; or (of marital rights) by a false oath of the consent of the bride's father: A. O. v. Lucas, 2 Hare, 566; or of estate by being an alien: Finch v. F.,2 Ves. 491; and as to" forfeiture of an estate by an attempt to alienate, see Hambrook v. Smith, 16 Jur. 144, and see Hurst v. H., 9 Ch. 762; or by having acted as agent for the Confederate States of America: U. S. v. Macrae, 3 Ch. 79. But if the penalty would go to the Pit, and he waive it (L. Uxbridge v. Stave- land, sup.) ; or if the time within which the penalty must be sued for has elapsed {Corp. Trin. Ho. v. Surge, 2 Sim. 411), discovery must be given. Where the objection goes to the whole discovery asked, it may be taken by plea or demurrer: U. S. v. Macrae, 3 Ch. 79. RESISTING DISCO VEET — IRRELEVAKCY. No discovery can be compelled which is not directly or indirectly ma- terial to the issue to be tried at the hearing: see Wigram, 159 ; Bleckley v. Rymer, 4 Drew. 248; Kettlewell v. Barslow, 7 Ch. 686; Adams v. Lloyd, 3 H. & N. 351. The oath of the party that documents ordered to be produced are imma- terial is sufficient, unless there be something in the nature of the case, or on the face of his statements, to show that this is not so : Minet v. Morgan, 8 Ch. 361; 21 W. R. 467; Combe v. C. of Lond., 1 Y. & C. Ch. 652. All documents admitted to be relevant must be produced, unless good reason be shown to the contrary: Storey v. Lennox, 1 My. & C. 525; and that they may disclose evidence intended to be used is not enough ; and as to what amounts to an admission of relevancy, see S. C, and that schedul- ing them does, see Greenwood v. G., Q W. R. 119. A Deft sued as agent and denying the agency by his answer, had not to answer as to what appeared to be his private affairs : G. W. Colliery Co. v. Tucker, 9 Ch. 376. Questions as to sale of surplus water were held rele- 52 DISCOVERT. [part II. jSfeHt in a suit by a water company to restrain diversion of a stream; '■Wilts, Ire. Co. V. Sioindon W. W. Co., 20 W. R. 353. As to whether documents required merely for comparing handwriting are relevant, see Wilson y. Thornbury, 17 Eq. 517. RESISTING DISCOVERT — DISCOVERY RELATING TO OWN CASE ALONE. Discovery may be refused as to matters which relate exclusively to the party's own case: Ketdewell v. Barstow, 7 Ch. 686. Although a Deft need not disclose the evidence by which he means to support his case, yet he must tell the Pit the nature of his defence. But when a Deft makes no case of his own, simply denying the Pit's case, he cannot protect his docu- ments as being only evidence of his own case, for Pit's case includes mat- ters charged as answers to an expected defence: A. G. v. Corp. of London, 2 M. & G. 247, 265. As to whether Pit and Deft are in the same position as to this ground of privilege, see Hoffmann v. Postill, 4 Ch. 673; Minet v. Morgan, 8 Ch. 361, 21 W. R. 467. A statement that documents were obtained by a Deft for his own de- fence, and that they do not relate to or evidence the " title " of the Pit, is not snfBciently distinct to protect them : Felkin v. L. Herbert, 30 L. J. Ch. 798; and see Mangell v. Feenet/, 9 W. R. 610. In Bolton v. Liverpool, 1 M. & K. 88, a statement that the documents were the title-deeds of the Defts was sufficient to protect them without using the word exclusively, or denying their supporting the Pit's title; but see Minet v. Morgan, 8 Ch. 361, 21 W. R. 467; and Combe v. London, 1 Y. & C. Ch. 652; Harris v. H., 4: Hare, 179. If a Deft admit the relevancy of documents to a part of the Pit's case, and do not distinctly deny that they prove that part of the case, he is not privileged by a general statement that they are his own evidence: Smith v. D. of Beaufort, 1 Hare, 507, 1 Ph. 209; Gresley v. Mousley, 2 K. & J. 288; and he may lose his right to protect a deed relating solely to his own case, but put forward by himself, by making it by statement or by partial quo- tation part of his answer: Hardman v. Ellames, 2 M. & E. 732; Adams v. Fisher, 3 M. & C. 549; Latimer v. Neate, 4 CI. & F. 570, 11 Bligh N. S. 149; Hunt v. Elmes, 27 Beav. 62, 5 Jur. N. S. 645; secus if the Pit states the deed and the Deft admits and refers to it : Howard v. Robinson, 4 Drew. 522; see also Glover v. Hall, 2 Ph. 484. And for a clear statement of the rule, see Combe v. Corp. of London, 1 Y. & C. C. 651. The party's own statement of the nature of the deeds is conclusive, although it merely go to knowledge, information, and belief: Bewicke v. Graham, 7 Q. B. D. 400, 409; Adams v. Fisher, 3 My. & C. 526; or be- lief on advice: Peile v. Stoddart, 1 Mac. & G. 192; Chart. Bk. of Ind. v. Rich, 4.B. & S. 73, 11 W. R. 830; (but a statement that they did not " relate to or evidence the title "of tiie Pit was too ambiguous: Felkin v. Herbert, 30 L. J. Ch. 798 ;) unless there is something to show that the state- ment is untrue: Mansell v. Feeney, 2 J. & H. 313, 9 W. R. 532; Combe v. Corp. ofLond., 1 Y. & C. C. 651; Luscombe v. Steer, 37 L. J. Ch. 119; Greenwood v. (?., 6 W. R. 119 ; (in which case the order should be for a CH. IV. S. I.] PEODUCTION AND INSPECTION OF DOCUMENTS. '53 further affidavit and not for production at once: Corp. of Hastings v. Ivail, 8 Ch. 1017;) or that the party has not examined the documents sufficiently to know their contents: Manby v. Bewicke, 8 D. M. & G. 476, 4 W. R. 757; or has by statement made them part of his answer: Hardmann t. Ellames, and other cases, sup. And see Gresleyy. Mousley, 2 E. & J. 288; Commrs. of Sewers v. Glasse, 15 Eq. 302; Sutherland v. S., 17 Beav. 209. A party is not entitled to see documents which only prove his title, if at all, by destroying his adversary's: Bolton v. Corporation of Liverpool, 3 Sim. 467; 1 M. & K. 88; and see Jenkins v. Bushhy, 85 L. J. Ch. 400; nor is he entitled to see documents, because he may find evidence on which to turn the Deft out of possession: 1 M. & K. 92; Kettlewell v. Barstow, 7 Ch. 686. But as to where the biD, filed in aid of a defence at law, made no case but suggested specific defects in Deft's title, see Smith v. Beaufort, 1 Ph. 209. A Deft must produce evidence common to both parties, such as (the question being identity or boundaries of land) maps, and deeds in his possession: Earp v. Lloyd, 3 K. & J. 549, and cases there cited; Bolton v. Liverpool, sup.; Jenkins v. Bushby, 35 L. J. Ch. 400; Barry ■v. Scully, Iv. Bep. 6 C . L. 449 ; especially in a suit by a lessor against his lessee : Brown v. Wales, 15 Eq. 142. In an action for the recovery of land the Pit is entitled to discovery as to all matters relevant to his own and not to the Deft's case: Lyell v. Kennedy, 8 App. Cas. 217. And in suits between partners each must produce all documents relating to the partnership: Adams v. Fisher, 3 My. & C. 547; secus where there was an agreement that the Pit should have no right to examine the books or accounts: Turney v. Bayley, 4 D. J. & S. 332; 33 L. J. Ch. 500; overruling S. C, 34 Beav. 105. In a suit for discovery in aid of a defence to an action, Pit was entitled to see the nature of the claim at law, but not the evidence to be adduced in support of it: Bdlwood v. Wetherell, 1 Y. & C. Ex. 211; and was enti- tled to an admission or denial of facts stated in the bill : Garle v. Robinson, 3 Jur. N. S. 633. A valuation of a surveyor was privileged: Llewellyn v. Badeley, 1 Hai-e, 527. RESISTING DISCOVERT — COMMUNICATIONS WITH SOLICITOR OR COUNSEL. Communications between client and solicitor, or counsel, are protected from discovery; this protection being intended to secure to persons who have confidential communications with their legal advisers the benefit of secrecy, is confined to communications between them with the view of the client obtaining advice on matters of law, and does not extend to facts communicated to the solicitor by a third party, nor to knowledge acquired by the solicitor from a third person as well as the client; and it must be clearly stated that the knowledge was obtained by the solicitor in his character of solicitor, and from the client: Spenceley v. Schulenburgh, 7 East, 357; Desborough v. Rawlins, 3 M. & C. 515; Sawyer v. Birchmore, 3 M. & E. 572; Thomas v. RawUngs, 27 Beav. 140; Lewis v. Pennington, 6 Jur. N. S. 478; Ford v. Tennant, 32 Beav. 162; Marsh v. Keith, 1 Dr. 54 DISCOVKRT. [PAET II. Jk S. 342; Exp. CampbeU, 5 Ch. 703; Page v. Ward, 17 W. R. 435; JSe 'iLand Credit Society of Ireland, 15 W. K. 703 ; Wheeler v. Ze Merchant, 17 Ch. D. 675. ■^ In the latest case on the subject the House of Lords decided that a party to au action cannot be compelled to answer inten-ogatories asking as to Ms knowledge, information, or belief with regard to matters of fact, if he swears that he has no knowledge or information with regard to those matters except such as he has derived from privileged communications made to him by his solicitors or their agents ; for since, under those circum- stances, his knowledge and information are protected, so also is his belief when derived solely from such communications. " The plain reason and sense of the thing is," said Lord Blackburn, "that as soon as you say. tha^t the particular premises are privileged and protected, it follows that the mere opinion and belief of the party from those premises should be protected and privileged also: " Lyell v. Kennedy {No. 2), 9 App. Cas. 81, 87 (1883). In this case, the Pit having been interrogated as to his knowl- edge, information and belief upon matters relevant' to the Deft's case, answered that he had no personal knowledge of any of the matters . inquired into; that such information as he had received in respect of those matters had been derived from information procured by his solicitors or their agents in and for the purpose of his own case. It was held, affirming the decision of the Court of Appeal, 23 Ch. D. 387, that the answer was sufficient. The object of the privilege is to enable litigants to communicate freely and safely with their legal advisers: Nias v. JV. §• E. Railway, 3 My. & C. 357; Lawrence v. Campbell, 4 Drew. 489; 7 W. K. 336; and Ought not to be extended further than necessary for that object: Glyn y. Caulfield, 3 Mac. & G. 463; Andersomv. Bank of British Columbia, 2 Ch. D. 644. It extends to communications between solicitor and his town agent, and the client and the town agent: Hughes v. Biddulph, 4 Buss. 190; and to cor- respondence passing through a third person acting as agent for the client or solicitor: Bunbury v. B.,2 Beav. 173; Reid v. Langlois, 1 M. & G. 638; Anderson v. Bank of British Columbia, 2 Ch. D. 644 ; Steele v. Stewart, 1 Ph. 471;' Carpmael v. Poiois, lb. 687 ; Hooper v. Oumm,. 10 W. R. 644; and between the solicitor and his witnesses: Curling V. Perring, 2 M. & E. 380; Holmes v. Baddeley, 1 Ph. 476; to communications between a Scotch- man in Scotland and Scotch solicitors in London, who acted as his legal advisers: Lawrence v. Campbell, 4 Drew. 485; 7 W. R. 336; to those be- tween a company's ofRcers, agents, engineers, &c., and the solicitors of the company: Wilson v. Northampton, Ij-c. Railway, 14 Eq. 477; and to the reports of an accountant employed by the solicitor: Walsham v. Stainton, 2 H. & M. 1; to reports of medical men procured by the solicitor of a rail- way company to enable him to advise in an action for personal injury: Friend v. L. C. Sf D. Ry., 2 Ex. D. (C. A.) 437; and to information ob- tained by the client at his own instance for the purpose of being submitted to his solicitor with a view to future litigation: Southwark, ^c. Co. v. Quick, 3 Q. B. D. 315; 26 W. R. 328, 341. A letter written to the English manager of the Defts by their manager abroad containing information as to threatened litigation, and intended for laying before their solicitors, but not made as a " confidential commu- CH. ly. S. ^.] PRODUCTION AND INSPECTION OP DOCUMENTS. 55 nioation," was not privileged: Anderson v. Bank of British Columbia, 24 W. R. 724; and see English v. Totlie, 1 Q. B. D. 141. A solicitor had to answer, to whom, when and why, he parted with documents of his oUent formerly in his possession: Banner v. Jackson, 1 D. & S. 472 ; and could not claim privilege so as to refuse discovery of the residence of a ward of Court: Ramsbotham v. Senior, 8 Eq. 575. The privilege does not extend to protect communications between so- licitor and client for effecting a fraud impeached in the suit: Momington V. M., 2 J. & H. 703; Feacer v. WUliams, 11 Jur. N. S. 902; Phillips v. Holmer, 15 W. R. 578 ; secus where the solicitor is not a party nor charged with the fraud: Charlton v. Coombes, 4 GifE. 372; and as to documents shown to contain legal advice or opinions, Sankey v. Alexander, Ir. Kep. 8 Eq. 241. The advice or comipunication to be privileged must have been given professionally and not as a friend: Smith v. Daniell, 18 Eq. 649 ; though after the dispute arose : Oreenlaw v. King, 1 Beav. 137 ; but the solicitors having, without the client's knowledge, ceased to practice, makes no difference: Devaynes v. Robinson, 20 Beav. 142; Calley v. Richards, 19 Beav. 401. The privilege continues, although the solicitor, &c., afterwards becomes interested in the matter in dispute: CharU v. Brown, 7 Hare, 79; where in a dispute between c. q. trustees, one employed the trustee as his solici- tor, communications between them were not privileged frpm the other c. q. trustee: TugweU v. Hooper, 10 Beav. 348; the privilege exists, though the solicitor claiming it be charged in the bill with fraud in conducting the client's business: Qreenough v. GaskeU, 1 M. & K. 98; but see also Gartside v. Outram, 3 Jur. N. S. 40, 5 W. E. 35 ; the privilege can in gen- eral be claimed by the representatives of the client and the solicitor: Minet V. Morgan, 8 Ch. 361, 21 W. R. 467; Gresley v. Mousley, 2 K. & J. 288 ; but the privilege that belonged to a testator cannot be claimed by his executors against the beneficiaries under his will: Russell v. Jackson, 9 Hare, 387; nor can it be claimed by a solicitor in a suit against him by the client: Gresley v. Mousley, 2 K. & J. 288; Wynne v. Humberstone, 27 Beav. 421, 32 L. T. 306. The privilege does not extend to letters, &c. , written before the dispute arose or could have arisen: Original, §-c. Co. v. Moon, 30 L. T. N. S. 193, 585; but does generally extend to communications made before the suit began, and even before it was contemplated: Minet v. Morgan, 21 W. R. 467, 8 Ch. 361; and the cases discussed in the judgment of Lord Sel- borne: Turton v. Barber, 17 Eq. 329; Wilson v. Northampton, Sj'c. Railway, 14 Eq. 477; Macfarlan v. Roll, 14 Eq. 580. So that documents are sufficiently protected by the words " relating to the matters stated in the bill:" Mas v. N. §• E. Railway, 3 My. & C. 355; or " with reference to questions connected with the matters in dispute in this cause: " Minet v. Morgan, 8 Ch. 361, 21 W. R. 467; but in Paddon V. Winch, 9 Eq. 666, letters were not protected because not "in anticipa- tion of the claim raised by the suit; " and communications between co- Defts as to their defence were not protected: Goodall v. Little, 1 Sim. N. S. 155; BettsY. Menzies, 2 J. & H. 602, 26 L. J. Ch. 528, 5 W. R. 767; Glyn v, Caulfield, 3 Mao. & G 463; secus where one, a solicitor, 56 I DISCOVERT, [PAET II. acted as agent for the solicitor on the record: Hamilton v. Nott, 16 Eq. ^2; and see Blenkinaopp v. B., 2 Ph. 607; CarrY. Nejo Quebrada Co., W. N. (73) 208. As to client and solicitor being both Defts, see Gaskell v. Chancers, 26 Beav. 303. The privilege is equally extensive whether asserted by the solicitor or the client: semhle, Thompson v. Folk, 1 Drew. 26. RESISTING DISCOVERY — CASES AND OPINIONS OP COUNSEL. Cases and opinions of counsel as to the matters in question are privi- leged in the same way as communications between solicitor and client, whether stated and obtained in contemplation of, or since the commence- ment of, the suit, or not: Wilson v. Northampton, Sfc. Ry., 14 Eq. 477; Minet v. Morgan, 8 Ch. 361, 21 W. R. 467, and cases there; Bolton v. Corp. of Liverpool, 1 M. & K. 88, is overruled on this point; and see Manser v. Dix, 1 K. & J. 451, 3 W. R. 313, 1 Jur. N. S. 466. Opinions of counsel and the friendly opinion of an ex-chancellor, privi- lege for which was claimed as taken " in anticipation of and relation to the litigation," but not as confidential communications, had to be pro- duced : Smith V. Daniell,. 18 Eq. 649 ; and see Anderson v. Bk. of Brit. Columbia, 2 Ch. D. 644. The privilege extended to cases and opinions prepared and obtained with reference to prior suits between the same parties, and to suits be- tween the Deft and other parties than the Pit, on the same matter: Combe V. Corp. of London, 1 Y. & C. C. 631; Thompson v. Folk, 1 Drew. 21; a fortiori where the question in dispute is the same in the former as in the existmg action: BuUock §• Co. v. Corrie §• Co., 26 W. R. 330, 3 Q. B. D. 356; and see Holmes v. Baddeley, 1 Ph. 476. And also where the litiga- tion had taken a different form from that contemplated: Lafoney. Falk- land Isl. Co., 27 L. J. Ch. 25. And a copy of a case and opinion, lent to a Deft by a person who was litigating the same point with the Pit, was protected: Enthoveny. Cobb, 2 D. M. & G. 632. The privilege is not necessarily lost by giving a copy of, or extract from, the opinion, to the solicitor on the other side: Carey y, Cuthbert, Ir. Rep. 6 Eq. 599. Cases, &o., in which Pit and Deft have a joint interest must be pro- duced; as an opinion which had been taken by the predecessor in title of them both: A. G. y. Berkeley, 2 J. & W. 291; and see Reynell v. Sprye, 10 Beav. 61. Cases and opinions taken by trustees must be produced in a hostile suit against them by the c. q. trustees: Devaynes y. Robinson, 20 Beav. 42; except those taken in contemplation of the suit: Brown v. Oakshott, 12 Beav. 252; and as to executoi's and legatees, see Russell v. Jackson, 9 Hare, 387 ; Bowen v. Pearson, 9 Jur. N. S. 789. The difference is between taken by the trustees on their own behalf and those taken on behalf of the trust estate: Thomas v. Sec. of St. for India, 18 W. R. 312 ; but evidence to show that opinions were taken for the trust, and had been published, was not admitted: Underwood v. Same, 35 L. J. Ch. 545. Executors who had used part of the estate in their business had to pro- duce the books: Vyse v. Foster, 13 Eq. 602. But a mere claimant to the CH. IV. S. I.] PRODUCTION AND INSPECTION OP DOCUMENTS. 57 trust estate cannot call for them: Wynne v, Humherstone, 27 Beav. 421, 32 L. T. 306, L. JJ.; Newland v. Steer, 11 Jur. N. S. 596; but see Cull v. Inglis, 16 W. R. 477; and Be Pine, M. R. in Cham., ISth Nov. 1863, Dan. 1065, 1683, where an order was made on a claimant coming in under a decree to produce documents, and in Groves v. G., Kay, xix. And trustees are entitled to discovery as to any dealings with the trust property, so as to know who are their o. q. trustees: Hurst Y.H., 9 Ch. 762. And letters from a joint solicitor of two persons (e.g. husband and wife) must be pro- duced in a subsequent suit between them: Warde'v. W., 3 Mac. & G. 365; see also Ford v. De Pontes, 7 W. R. 299, 5 Jur. N. S. 993; Tugwell v. Hooper, 10 Beav. 348; Gresley v. Mousley, 2 K. & J. 288. Indorsements on counsel's brief in the Probate Court, but not his in- structions, were ordered to be produced, and shorthand' notes of the proceedings: NichoU v. ^ Jones, 2 H. & M. 595; Walsham v. Stainton, lb. 1. RESISTING DISCOVERT — COMMUNICATIONS WITH AGENTS, ETC. Information obtained through an agent employed by the solicitor is protected, if confidential, and made in anticipation of, or with a \<^ew to, proceedings in the litigation : Reidy. Langlois, 1 Mac. & G. 627; Greenough V. Oaskell, 1 My. & K. 98 ; but they must have reference to impending or actual litigation: Chart B. of Ind. v. Rich, 4 B. & S. 73; WCorquodale v. Bell, 1 C. P. D. 471; and see Steele v. Stewart, 1 Ph. 471; and the exten- sion of the privilege to any communications with a mere agent made with a view to litigation (see Ross v. Gibhs, 8 Eq. 522) has been dis- tinctly disapproved: Anderson v. Bank of British Columbia, 2 Ch. D. 644. A report by a medical oflfioer of a railway after the accident, but before the action commenced, for injuries sustained, was protected: Cosseyv. L.B. §• S. C. Ry., L. R. 5 C. P. 146; Skinner v. G. N. Ry., L. R. 9 Ex. 298. But a medical report to an insurance company, on which the insur- ance was founded, had to be produced in an action for the money assuredl Mahoney v. Widows' L. A. Fund, L. R. 6 C. P. 252. The rules in law and equity were not it seems uniform: see Wolley v. N. L. Ry., L. R. 4 C. P. 602 ; Chartered Bank v. Rich, 4 B. & S. 73 ; but any such difference has been now abolished, and the rules of equity prevail: Anderson v. Bank of British Columbia, 2 Ch. D. 644. In Lafone v. Falkland Isl. Co., 4 K 8e J. 34, 6 W. R. 4, 27 L. J. Ch. 25, the privilege was extended to a mere agent collecting evidence ; and as to letters between Pit himself (who was not then employing a soliciter) and third persons: see Storey v. Lennox, 1 My. & C. 525; and see Richards v. Gellaay, L. R. 7 C. P. 127; Parr v. L. C. §• D. Ry., 24 L. T. N. S. 558; M'Corquodale v. Bell, 1 C. P. D. 471; English v. Tottie, 1 Q. B. D. 141. Correspondence between vendor and purchaser, referring to an expected claim by B., was to be produced in a suit by B. against the purchaser: Paddon v. Winch, 9 Eq. 666 (J.). An examination in bankruptcy taken in contemplation of the suit was privileged: Fenton v. Queens, ^c. Co., 38 L. J. Ch. 263. As to communications being privileged as confidential between master and servant or workman, &c., and restraining disclosure, see "Injunc- 58 DISCOVERY. [past II. riONS; " Kerr on Injunctions, chap. 12; and that fraud of the employer supersedes the private obligation of secrecy: Gartside v. Outram, 5 W. R. 35 ; 3 Jur. N. S. 39. And as to private letters : Hopkinson v. L. Burghley, 1 Ch. 447 ; Howard v. Ounn, 32 Beav. 462 ; and see Form 15, sup. p. 35 ; Allen V. Royden, 42 L. J. C. P. 206; Crowther v. Appleby, L. K. 9 C. P. 23. Notes prepared by the manager of a company for an arbitration which never took place, were privileged in a suit against the company: Carr v. New Quebrada Co., W. N. (73) 208. Arbitrators, whose fees have not been paid, are privileged from disclos- ing anything tending to show the contents of the award: Ponsford v. Swaine, 1 J. & H. 433. Secus where the bill alleged fraud: Padley v. Lincoln Water Co., 2 Mac. & G. 68. Husband and wife are privileged from answering as to access before marriage, when the question is as to the parentage of a child born three months after their marriage: Anon., 22 Beav. 481, 23 Beav. 273. As to making a party produce his private memoranda: Maltock v. Heath, W. N. (75) 201. The right to discovery may be lost by contract: Turney v. Bayley, 4 D. J. & S. 332, 33 L. J. Ch. 499; overruling S. C, 34 Beav. 105. USING DISCOVERY AT THE TRIAL. Portions of the answer to a bill for discovery could not be read in the trial at law without reading the whole, and documents admitted in the answer were part of it, and could not be read without reading the whole answer, unless by special order of the Court of Chancery that they should be produced at the trial : Brown v. Thornton, 1 M. & C. 243 ; Aston v. L. Exeter, 6 Ves. 288 ; Hylton v. Morgan, lb. 293. As to reading parts of an answer and withdi-awing parts already read, see Freeman v. Taiham, 5 Hare, 329. Section II. — Delivery Out op Documents. 1. To a Party or Purchaser. Let (such of) the several documents deposited by &c., with the Clerk of Records and Writs, pursuant to the order dated &c. (as relate to &c., or are mentioned in the schedule hereto), be delivered out to the Pit [or Deft] A. [or to B. the purchaser of the (hered- itaments comprised in Lot , part of the) real estates of C, the testator in the pleadings named]. 2. To a Party's Solicitor, to be produced in Evidence. (Bt consent) Let the documents deposited by the Defts with the Clerk of Records and Writs pursuant &c. be delivered out to Mr. CH. IV. APP.] APPENDIX. 69 -, the Defts' solicitor, for the purpose of producing the same before &c., the said Mr. undertaking to re-deposit the same within a week after the examination is closed. — Pit to be at liberty to inspect the documents meanwhile. APPENDIX. 1. Form of Summons for Affidavit of Documents. Let the (Deft B.), his solicitor or agent, attend me at my chambers in to-morrow at (11) of the clock in the forenoon, to show cause why the (Deft) should not answer within days, on affidavit, stating what documents are or have been in his possession or power relating to the matters in dispute, or what he knows as to the custody they or any of them are in, and whether he objects (and if so, on what grounds) to the production of such as are in his possession or power, and why the costs of and occasioned by this application should not be costs in the cause [or action]. Dated this &c. 2. Order for Affidavit of Documents. Upon hearing the solicitors or agents on both sides, I do order that the (Deft B.) shall within days answer on affidavit, stating what docu- ments are or have been in his possession or power relating to. the matters in dispute, or what he knows as to the custody they or any of them are in, and whether he objects (and if so, on what grounds) to the produc- tion of such as are in his possession or power, and that the costs of and occasioned by this application be costs in the cause [or action]. Dated this &c. 3. Summons for Inspection. Let the (Deft B.), his solicitor or agent, attend me at my chambers in to-morrow at (11) of the clock in the forenoon, to show cause why the said (Deft), his solicitor or agent, should not be at liberty to inspect and take a copy of or extracts from &c. [If the applicant is not the Pit, add, and why in the mean time all further proceedings should not be stayed.] Dated &c. 4. Order for Inspection. Upon hearing the solicitors or agents on both sides, and upon reading the affidavit of &c., I do order that on payment of per folio for copy, the (Pit), or his solicitor or agent, be at liberty to inspect and take a copy of or extracts from &c., and that such inspection &c., be had at the office of the (Deft) B.'s solicitor at &c. [If applicant is not Pit, add, and 60 DISCOVERT. [part II. that in the mean time all farther proceedings be stayed.] The costs of inspection and of this application to be costs in the cause \or action]. Dated &c. 5. Form of Affidavit as to Documents. In the Court. Between A., Pit, and B., Deft. I, the above-named Deft B., make oath and say as follows : — 1. I have in my possession or power the documents relating to the mat- ters in question in this suit set forth in the first and second parts of the first schedule hereto. 2. I object to produce the said documents set forth in the second part of the said first schedule hereto. 3. That \here state upon what grounds the objection is made, and verify the facts as far as may 6e]. 4. I have had, but have not now, in my possession or power the docu- ments relating to the matters in question in this suit set forth in the second schedule hereto. 5. The last-mentioned documents were last in my possession or power on [state when'] . 6. That [here state what has become of the last-mentioned documents, and in whose possession they now are] . 7. According to the best of my knowledge, information, and belief, I have not now, and never had in my possession, custody, or power, or in the possession, custody, or power of my solicitors or agents, solicitor or agent, or in the possession, custody, or power of any other persons or per- son on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the mat- ters in question in this suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the said first and second schedules hereto. 6. Form of Notice to produce Documents. In the Court. A. V. B. Take notice that the [Pit or Deft] requires you to produce for his in- spection the following documents referred to in your [biU, or statement of claim, or answer, or defence, or affidavit, dated the day of ]. Describe documents required. X. Y., solicitor to the . To Z., solicitor for . CH. T. S. I.] INTEELOCUTORT INJUNCTIONS, ETC. 61 CHAPTER V. INJUNCTIONS. Section I. — Inteelocutoet Injitnctions and Inteeim Oedees. 1. Injunction on Nbtiee, or Mcparte, on Undertaking as to Damages. Upok motion &c. by counsel for the Pit, and upon hearing coun- sel for the Deft [or reading an affidavit of service of notice of this motion on the Deft, or if moved exparte before the Deft has ap- peared, the writ of summons issued in this action on the day of ] {Enter affidavits in support and in opposition, if any'] ; And the Pit, by his counsel, undertaking to abide by any order this Court may make as to damages, in case this Court should hereafter be of opinion that the defts shall have sustained any, by reason of this order, which the Pit ought to pay [_Ifso, and also undertaking to accept short notice of motion to dissolve the injunction hereby awarded], This Court doth order, that an injunction be awarded to restrain the Deft A., his servants, workmen, and agents, from &c., until judgment in this action, or until further order. For the form of the writ of injunction, see Braitb. 226. 2. Exparte Interim Order. Usual undertaking as to damages [Form 1, If so, And also undertaking to accept short notice of motion to discharge this order] ; Let the Deft, his servants, workmen, and agents, be re- strained from &c. until after the day of , or until farther order \_If so, And Let the Pit be at liberty to serve the Deft with notice of motion for the day of , for an injunction in this action. 3. Exparte Injunction., on Application in Vacation, without Counsel. Upok the application of the Pits, and upon reading an affidavit of &c., [Enter evidence] ; and the Pits, by their solicitors, having 62 INJUNCTIONS. [part U. undertaken &c. [Form 1], and having signed the Registrar's book to that effect accordingly, this Court doth order that an injunction be awarded &c. 4. Extending Interim Order, on like Undertaking b. Let the said motion stand over until &c., and the Pits, by their counsel, undertaking to abide &c. [Form 1] ; Let the Defts be further restrained until after the said day of , from &c. [Follow terms of interim order.] 5. Motion to Stand Over on Mutual Undertakings. And the Deft, by his counsel, undertaking to stay the sale of the property in the (bill) mentioned until after the day of ; and the Pit, by his counsel, undertaking to abide by any order this Court may make as to Damages &c. [Form 1], by reason of such sale being so stayed &c.. Let this motion stand over until the said day of . 6, Motion treated as the Trial, and Action stayed on Deft'g Undertaking and paying Costs. And Pit and Defts by their counsel consenting that the hearing of this motion should be treated as the trial of this action, and con- senting to this order ; and the Defts by their counsel undertaking not to (in terms of the injunction claimed hy the writ), This Court doth order that the Defts do pay to the Pit his costs of this action, to be taxed &c. ; and that all further proceedings in this action, except for the purpose of giving effect to this order, be stayed. 7. Inquiry as to Damages after Judgment for Deft — Payment — Costs. Let an inquiry be made whether the Deft E. has sustained any and what damages by reason of the injunction awarded by the order dated &c., having been granted, and which the Pit ought to pay according to his undertaking contained in the said order ; And in case it shall appear that any such damage has been sustained, Let the Pit B. pay to the Deft E., within one month from the date of the certificate of &c., to be made pursuant to this order, the amount which shall be thereby certified for such damages, and also pay to the said Deft his costs of the said inquiry, to be taxed by the Taxing Master ; And in case it shall appear that no such dam- CH. V. S. I.] INTEELOCUTOEY INJUNCTIONS, ETC. 63 age has been sustained, Let the Deft E. paj' to the Pit his costs of the said inquiry, to be taxed as aforesaid. — Burdett v. Hay, 4 D. J. & S. 41. 8. Dismissal — Sum certain to be paid for Damages, or Inquiry, Dismiss Pit's (action) with costs. — " And the D^ft by his counsel offering to accept the sum of $ for damages under the under- taking of the Pit contained in the said order dated &c., Let the Pit be at libertj' to pay the said sum of $ to the Deft ; And in de- fault of the Pit paying to the Deft the said sum of $ within &c." — Inquiry what datnages have been sustained by the Deft by reason of the said order dated &c., having been made. — Pit to pay what shall be certified, and Deft's costs of the inquiry. — Liberty to apply. The terms of a perpetual injunction are " from henceforth and for ever strictly enjoin and restrain," &c. : see Braith. 227. NOTES. JURISDICTION. In England the extensive jurisdiction of granting injunctions originally given to the Common Law Courts by the Common Law Procedure Act, 1854, is now vested in the High Court of Justice, and the jurisdiction thus vested is practically unlimited, and can be exercised by any Judge of the High Court in any case in which it is right or just to do so, having regard to settled legal reasons or principles (1 Dan. Ch. Pract. 6th ed; 22) ; but it seems that there is nothing in the Judicature Act which enables any part of the High Court to issue an injunction in a case in which before the Judicature Act there was no legal right on the one side or no legal liability on the other at law or in equity: North London Bailway Co. v. Cfreat Northern Railway Co., 11 Q. B. D. 30. FORM OF ORDER. In granting an injunction the Court should see that the language of the order is not ambiguous, but such as to make what it permits, and what it prohibits, quite plain: Low v. Innes, 4 D. J. & S. 286; and see Dalglish v. Jarvie, 2 Mac. & G. 231. It must have been founded on, and consistent with, the relief claimed: Burdett v. Hay, 4 D. J. & S. 41. After 15 & 16 V. c. 86, the form usually adopted in gi-anting interloc- utory injunctions was ' ' until the hearing of the cause, ' ' and under the new procedure it is "until judgment in this action or further order," to show that the injunction is not to extend beyond it, unless then continued by leave of the Court: Bolton v. London School Board, 7 Ch. D. 766. 64 INJUNCTIONS. [PAET II. Though an injunction restraining the Act complained of is claimed, or under the old practice was prayed, against the Deft alone, the order -will, if necessary, be extended to his workmen, servants, and agents; (and it is of course to insert these words) but not to his tenants: Hudson v. Cop- pard, 29 Beav. 4 ; 9 W. K. 9. And when the order restrains the Deft only, his agents, though not in terms enjoined, may be punished for con- tempt, if they knowingly assist in a breach of the injunction: L. Wellesley V. Morninglon, 11 Beav. 180. Otherwise an injunction does not bind a person not a party: Iveson v. Harris, 7 Ves. 256; and on a bill by persons " on behalf of all others, &c.," an injunction staying proceedings against persons not named parties to the record was held irregular, but continued by arrangement in favor of those who complied with the decree: Armitstead v. Durham, 11 Beav. 556- 561, n. The usual course has been to reserve until the hearing the costs of an adjourned motion for an injunction, with the proviso that if Pit did not bring the cause to a hearing they were to be costs in the cause : see Mac- dougall v. Jersey Hotel Co., 2 H. & M. 528; Lewis v. Smith, 1 Mac. &; G. 417; Kerr, 214; and this course will, no doubt, be followed in actions under the new procedure. UNDERTAKING AS TO DAMAGES. In Smith v. Day, 21 Ch. D. 421, 424, Jessel, M. E., stated the history and meaning of this kind of undertaking: "It was invented by Lord Jus- tice Knight-Bruce when Vice- Chancellor, and was originally inserted only in exparte orders for injunctions. Its object was, so to say, to protect the Court as well as the Deft from improper applications for injunctions. If the evidence in support of the application suppressed or misrepresented facts, the Court was enabled not only to punish the Pit but to compensate the Deft. By degrees the practice was extended to all cases of interlocutory injunction. The reason for this extension was, that though when the ap- plication was disposed of upon notice, there was not the same opportunity for concealment or misrepresentation, still, owing to the shortness of the time allowed, it was often difficult for the Deft to get up his case properly, and as the evidence was taken by affidavit, and generally without cross- examination, it was impossible to be certain on which side the truth lay. The Court therefore required the undertaking in order that it might be able to do justice if it had been induced to grant the injunction by false state- ment or suppression. I am of opinion that the undertaking was not in- tended to apply where the injunction was wrongly granted, owing to the mistake of the Court, as, for instance, if the Judge was wrong in his law. I think this is shown by the fact that such an undertaking is never in- serted in a final order for an injunction." Cotton, L. J. . " The Master of the Rolls has gone into the history of undertakings as to damages on the granting of interlocutory injunctions, and has limited their operation in a way with which I am not at present prepared to agree. His Lordship has laid down that no damages can be given under them unless there has been some default on the part of the party obtaining the injunction, so that there would be no remedy where CH. V. S. I.] INTERLOCUTORY INJUNCTIONS, ETC. 65 the party obtaining the injunction ultimately turned out to have no title, unless he had been guilty of some misrepresenjtation or suppression. I can- not, as at present advised, agree that the jurisdiction to give damages is limited to cases where there has been default on the part of the Pit. It is alleged that the fact that an undertaking is never inserted in injunctions granted at the hearing shows that it is only inserted with a view to the party obtaining the injunction having been guilty of default. It appears to me that this is not so, and that the true reason of the difference is that when an interlocutory injunction is granted the Court does not decide any right, but only determines on what footing matters shall stand till the trial; but at the trial the rights of the parties are finally determined. Jessel, M. R. " As regards the question raised by the observations of Lord Justice Cotton as to the extent of these undertakings, my individual opinion is that in no case ean a party be compelled under such an under- taking to pay damages because the Judge has made a mistake on a point of law. It is the duty of the Judge to decide according to law, and the Pit cannot be considered as undertaking to be answerable for his not doing so." 21 Ch. D. 429, 430. " This subject of undertakings to be answerable in damages when- ever injunctions are granted is," said Bacon, C. J., "no doubt, an important one. The Court has reserved to itself in exacting an undertak- ing the power of dealing with the question of damages. It is not an undertaking to pay such damages as the party proceeded against may think he has sustained, but it is to pay such damages as the Court may think fit to award in respect of the injunction, or in respect of the subject- matter of the suit for injunction." Exp. Hall, 23 Ch. D. 646. Except in cases where the Pit's right is perfectly clear, or damage from granting it is unlikely to accrue (Adamson v. Wilson, 3 N. R. 368), the Court will not grant an interlocutory injunction either exparte or on notice, without an undertaking as to damages, and the Registrars are instructed always to insert it: Chappell v. Davidson, 8 D M. & G. 1, 2 K. & J. 123; Tuck V. Silver, Johns. 218; Wakefield v. D. Buccleuch, 13 W. R. 856, 11 Jur. N. S. 523; Worms v. Smith, 18 W. R. 91; Graham v. Campbell, 7 Ch. D. 490 ; and it will be required even when the injunction is continued by the Appeal Court after hearing both sides: Teign Valley Co. x. South- wood, 19 W. R. 690; De Mattos v. Gibson, 7 W. R. 152. Where the injunction is granted in vacation, without attendance of counsel, the undertaking is usually signed either by Pit or by his solicitor in the Registrar's minute book, see Form 3, p. 61. Where the application for an injunction is by a Company, the Court has required the undertaking to be given, and the Registrar's book to be signed by a director, or some person satisfactory to the Court, and his signature to be witnessed by the solicitor of the company: Anglo-Danu- bian Co. v. Rogerson, 10 Jur. N. S. 87. Where no officer of the company is resident in London,. the undertaking may be sent by post to the Registrar, and filed instead of signing the book: Pacific Steam Co. v. Gibbs, 14 W. R. 218. If Pit is out of the jurisdiction, an undertaking must be given by his London agents or some responsible person: Hamilton v. Board, 1 N. R. 379. 66 INJUNCTIONS. [part II. It ■will be required from a married woman suing in respect of her sepa- rate estate: Holden v. Wdtirlow, 15 W. R. 139, in which case her co-Pits, the trustees, were also required to undertake. The undertaking remains in force although the bill (action) is dis- missed: Neuiby v. Harrison, 3 D. F. & J. 287; or the Pit has discontinued his action : Newcmneri v. Coulson, 26 W. K. 350, 7 Ch. D. 764. And see as to the time of reference and mode of assessing damages upon the undertaking, Southworth v. Taylor, 28 Beav. 616; Mold v. Wheatcroft\ 30 L. J. Ch. 598. BERVICB OF INJUNCTlOSr. Service of the minutes of the order signed by the Registrar, or even notice in writing, if fully proved, is sufficient, but should be followed by service of the order and writ as soon as they can be obtained: see Heywood V. Wait, 18 W. R. 205; Dan. Ch. Pr. 1525, 1533; Ayck. 288. An injunction operates, and a party having notice of the order is bound by it, from the time when it is pronounced, and not merely from the issue of the writ or drawing up of the order: McNeill v. Garratt, Cr. & Ph. 98; Rattray v. Bishop, 3 Madd. 220; Van Sandau v. Rose, 2 J. 8e W. 264.' A party in Coui-t when the order is made again.st him, or only leaving just as it was about to be pronounced, has notice of it so as to be bound: Heam v. Tennant, 14 Ves. 136; James v. Downes, 18 Ves. 522; and, gener- ally, it is sufficient if he has notice, however given, of the order; though by telegram: see Re Bryant, 4 Ch. D. 98; Heywood v. Wait, 18 W. R. 205. But the order should be drawn up, passed, and entered without delay: Van Sandau v. Rose, sup. ; and see Bateman v. Wiatt, 11 Beav. 586. Unless substituted service of the injunction has been directed (Kirkman V. Honnor, 6 Beav. 400; Heald'y. Hay, 9 W. R. 369; and see Anderson v. Lewis, 3 B. C. C. 429), service of the writ must be personal, by showing the original, and leaving a copy with the person served: Woodward v. King, 2 Dick. 797, 3 Sw. 626. NOTICE OP MOTION. According to the former practice personal service of notice of motion for injunction and receiver could only be made before appearance J)y leave of the Court, and such leave must have been stated in the notice: Rams- holtom V. Freeman, 4 Beav. 145; Hill v. Rimell, 2 M. & C. 641. The usual practice where a demurrer is filed pending a notice of motion for injunction is at once to set down the demurrer, which will usually come on for argument together with the motion: Anon. y. Bridgewater Canal, 9 Sim. 378; Hayman v. Governors of Rugby School, 18 Eq. 28. Even under the former practice the allowance or pendency of a demurrer for want of parties did not it seems prevent an application for an injunction or receiver: Hamp v. Robinson, 3 D. J. & S. 97; Const v. Harris, T. & R. 514. Under the old practice an amendment of the bill after notice of motion for an injunction operated as a waiver of the notice of motion, and the Pit had to pay the costs occasioned by the notice of motion : L. If Black- wall Ry. V. Limehome Bd., 3 K. & J. 123; Smith v. Dixon, 12 W. R. 934; Monypenny v. M.,1 W. R. 99. CH. T. S. I.] INTERLOCUTORY INJUNCTIONS, ETC. 67 It was irregular to move on notice of motion given before the amend- ment; the proper course being to apply for leave to amend, without preju- dice to the notice of motion: Rawtings v. Lambert, 1 J. & H. 458; Gouthwaite v. Rippon, 1 Beav. 54. An injunction which has been granted upon the merits is not lost by amendment of the bill, though the words " without prejudice to the in- junction" were not inserted in the order to amend: Harvey y. Hall, 11 Eq. 31; Warburton v. L. §• Bl. Ry., 2 Beav. 253. And see Pickering v. Hanson, 2 Sim. 488; Pratt v. Archer, 1 Sim. & St. 433: that where the injunction was obtained on the merits, a motion to amend without prejudice to the injunction was of course, and might be made without notice. INTERLOCUTORT APPLICATIONS AND INTERIM RESTRAINING ORDERS. The term "interim " is technically applied only to an order granted over the next or some early motion day, but often extended. The term " interlocutory" is used in a more comprehensive sense, and applies to any order or injunction that is granted only up to the trial or motion for judgment in the action. Under the new practice injunctions have been granted by judges of the Common Law Divisions personally in Chambers on exparte applications (see Fenner v. Bedford, W. N. (75) 230, to restrain puUing down a house; Tozer v. Walford, W. N. (75) 250, to restrain the use of a steam engine ; Anon., W. N. (76) 21, to restrain parting with a bill of exchange.) But this has not hitherto been the practice in Chancery, and will probably not be encouraged in that division: see English v. Camher- well Vestry, W. N. (75) 256; and that injunctions ought not to be granted exparte except in cases of emergency, see Anon., W. N. (76) 12, per Lindley, J. For injunction in the Probate Division, after issue of the writ but be- fore service, to restrain any dealing with an intestate's estate, see Brand V. Mitson, 24 W. R. 524. Under the old practice, in cases of urgency, interim restraining orders have been granted on affidavit of the facts and certificate of the bill filed, even before the Deft has appeared or been served with a copy of the bill. See Dan. 1715 and cases cited; and upon filing a written copy of the biU, Dan. 323. And in very nrgfent cases an interim order has been granted before the biU was on the file : Carr v. Morice, Thorneloe v. Skoines, 16 Eq. 125, 126 (the filing of the bill having been delayed by the close of the offices on a public holiday); Campanav. Webbj 22 W. R. 622; and even before the affidavit was filed, Pit undertaking to file it : Newman v. Harris, W. N. (70) 6. And see Parker v. G. N. Ry., 4 D. & S. 138; Williams v. Daries, 2 C. P. Coop. 172, n. After the motion is opened no new evidence can be adduced except with the leave of the Court: Bird v. Lake, 1 H. & M. 118, 119. And see Munro V. Wivenhoe Ry. Co., 4 D. J. & S. 726, which seems to extend the rule to the use by counsel of any evidence in existence when they are called upon to address the Court. 68 INJUNCTIONS. [part II. Applications for injunctions exparte are strictly dealt with : there must have been uberrima Jides ; the case must be fully and fairly stated ; and the suppression or misrepresentation of any material fact will disentitle Pit to relief, or at least make him liable for costs at the hearing: Dalglish V. Jamie, 2 Mac. & G. 231; A.G. v. Liverpool Corpn., 1 My. & Cr. 171 Maclaren v. Stainton, 16 Beav. 279; Edelsten v. E., 1 D. J. & S. 185 Fuller V. Taylor, 11 W. R. 532; Harbottle v. Pooley, 20 L. T. K. S. 436 Holden v. Waterlow, 15 Wr. 139. But the Pit so applying is not bound to state facts supposed to raise some point of law in reality untenable: Weston v. Arnold, 8 Ch. 1084. And see KeiT, 200, &c. Delay and acquiescence are very material (especially in patent cases : Bovill V. Crate, 1 Eq. 388; Bacon v. Jones, 4 M. & C. 439) ; and will more easily than at the hearing bar the Pit's right to summary relief: Bogg v. ScoU, 18 Eq. 444 f Johnson v. WyaU, 2 D. J. & S. 18; Wood v. Sutcliffe, 2 Sim. N. S. 163; Gordon v. Cheltenham, Ry. Co., 5 Beav. 233; Ware v. Re- gent's Canal Co., 3 D. & J. 212; Wintle v. Bristol §• S. W. Ry. Co., 10 W. R. 210; Salisbury v. Met. Ry. Co., 18 W. R. 484; Isaacson v. Thompson, 41 L. J. Ch. 101. But mere delay short of the statutory period of limita- tions will not affect the right to an injunction in aid of a legal right: Fullwood v.F.,9 Ch. D. 176. And see upon the equitable doctrine of acquiescence as applied to injunc- tions, Kerr, 41, 201, &c. The balance of convenience and inconvenience from granting or refusing the order is also very material on interlocutory applications, especially where it is sought to stop carrying on a trade: A. G. v. Charles, 11 W. R. 253; Plimpton v. Spiller, 4 Ch. D. 286; or a public undertaking: Shrews- bury Sf Chester Ry. v. Shrewsbury §• Birmingham Ry., 1 Sim. N. S. 410; Greenhalgh v. Manchester Ry. Co., 3 M. & Cr. 784; Hadley v. London, &c. Bank, 3 D. J. & S. 63; or to stop the working of a mine: Hilton v. Gran- ville, C. & Ph. 297; — as also the power of the Court completely to enforce its order, e. g. by compelling a Pit to carry out the contract an interference with which he seeks to restrain : Garrett v. Banstead Ry. Co., 4 D. J. & S. 462; Munro v. Wivenhoe Ry. Co., 4 D. J. & S. 723; — as also the fact that the Pit can be adequately and more conveniently compensated by an inquiry as to damages — and these considerations are also applicable to relief by injunction at the hearing, and to cases of specific performance. See Isenberg v. E. I. Ho. Co., 3 D. J. & S. 263; Jackson v. D. Newcastle, lb. 275; Eastwood \. Lever, 4 D. J. & S. 114; Senior v. Pawson, 3 Eq. 330; Master v. Hansard, 34 L. T. N. S. 719; Wilson v. Northampton §• Banbury Ry. Co., 9 Ch. 279. The interlocutory order does not conclude the right ; and the object and effect being merely to keep things in statu quo, in very special cases only will any positive act be enforced by interlocutory injunction: G. W. Ry. v. Birm., Sfe. Ry., 2 Ph. 597; Blakemore v. Glamorgan Canal, 1 M. & K. 154; Shrewsbury i^ Chester Ry. v. Shrewsbury §• Birmingham Ry., 1 Sim. N. S. 410; Kerr, 11, 12. And generally this summary relief will not be granted, where there is a CH. V. S. I.J INTERLOCUTORY INJUNCTIONS, ETC. 69 serious question to be tried \e.g., the construction of a doubtful clause in an Act of Parliament: Dover Harbor v. L. C. D. Ry., 3 D. F. & J. 559; — the validity of a patent: Plimpton v. Malcolmson, 20 Eq. 87; — or where the legal right of Pit is doubtful: Spottiswoode v. Clarke, 2 Ph. 154; — or upon the mere assertion by Pit of an adverse claim to property or money the right to which is the question to be decided at the hear- ing: Bank of Turkey v. Ottoman Bank, 2 Eq. 366; — or upon a mere quia timet where there is no sufficient threatened or intended injury: L. Cowley v. Byas, 5 Ch. D. 944. The usual course in such cases is to order the motion to stand until the hearing (trial of the action), Deft undertaking to keep accounts, or being put upon terms. See Coleman v. West Hartlepool Ry., 3 L. T. N. S. 847; Kerr, 210, 211. « The right to an injunction at the hearing is not lost by an interlocutory motion not having been made: Dames v. Marshall, 1 Dr. & Sm. 557. Injunctions have been granted at the hearing under special circum- stances though not prayed by the bill : Blomfield v. Eyre, Goodman v. Kine, 8 Beav. 250, 379; Reynell v. Sprye, 1 D. M. & G. 660. Injunctions have been granted at the instance of one Deft against his co-Deft (Edgcumhe v. Carpenter, 1 Beav. 171), but not, it seems, upon interlocutory application before decree: Russell v. L. C. D. Ry., 4 Giff. 403. It has been said that an interim order, if nothing is said to the con- trai-y, remains in force until the case is disposed of, see Carrow v. Ferrier, 3 Ch. 719; but in practice such orders are invariably expressed to be granted until after or over a day fixed. See Form 2, p. 6; and if neces- sary may be continued until a further day, or until judgment. See Form 4, p. 62. An interim order for an injunction having been obtained ex- parte, with the usual leav&to serve notice of motion, the Pit is not entitled as of course to a further exparte interim order, if from the pressure of business he is unable to bring on the motion: Graham v. Campbell, 7 Ch. D. 490. The pendency of a motion for an injunction did not prevent Pit from obtaining an order to dismiss his own bill: Markwick v. Pawson, 33 L. J. Ch. 703. INJUNCTIONS MANDATORY. The jurisdiction to grant a mandatory injunction; that is to compel the Deft not only to desist from unlawful acts for the future, but to restore matters to their original position, is exercised, like that of specific per- formance, in cases where the injury to the Pit, active or passive, cannot be estimated and sufficiently compensated by damages, and has not been condoned by acquiescence. By an interlocutory injunction the continuance of the act complained of is stopped, until the right is tried between the parties ; by a perpetual in- junction such act, when decided to be unlawful, is permanently restrained ; and by a mandatory injunction the Deft is ordered to undo the wrong he has done, and give the Fit complete relief by putting him in the position in which he was before the injury was committed. 70 INJUNCTIONS. [PAET II. datory injunction is seldom granted until the Pit has completely est lished his right: Child v. Douglas, Kay, 578; Gale v. Ahhot, 10 W. R. 748; — unless the injury will be irreparable if allowed to continue until the hearing, e. g. the flow of water into a mine caused by removing the barrier of an adjoining working: Westminster Bryrribo Co. v. C%ton, 36 L.J. Ch. 476; — or unless Deft, after express notice or pending litigation, continues to push on an obstructive building: Beadel v. Perri/fZ Eq. 465; Staight v. Burn, 5 Ch. 163; Moms v. Grant, 24 W. R. 55; Smith V. Day, 13 Ch. D. 651. Delay and acquiescence are most material: Wicks v. Hunt, Johns. 373; especially in cases of obstructive building: Mott v. Shoolhred, 23 W. R. 545; unless there has been clear violation of an express agreement en- tered into by Deft after notice that the act will not be sanctioned: Morris V. Grant, 24 W. R. 55; or the buildings were such as to be easily altered, and their effect on Pit could not be known till they were finished: Baxter V. Bower, 23 W. R. 805. " Baxter \. Bower was a very special case — just one of those exceptions which prove the rule in nan exceptis." Thesiger, L. J., in Gaskin v. Balls, 13 Ch. D. (C. A.) 324, 329. The power to grant a mandatory injunction is not taken away by Lord Cairns' Act, 21 & 22 V. c. 27 (providing relief in damages in atddition to, or in substitution for, relief by injunction), and will be exercised where the court is satisfied that a wrong, i.e. substantial annoyance or injui-y (Bowes V. Law, L. R. 9 Eq. 636) has been wilfully done, and that there has been neither delay nor acquiescence on the part of Pit: Smith v. S., L. R. 20 Eq. 500; Krehl v. Burrell,7 Ch. D. 551, 11 Ch. D. 146; Doherty V. Allman, 3 App. Cas. 709. For the principles on which mandatory injunctions are granted or re- fused, and. the right to relief in damages, see also Durrell v. Pritchard, I Ch. 24; Isenberg v. E. I. Ho. Co., 3 D. J. & S. 263; Curriers* Co. v. Corbet, 2 t)r. & Sm. 355, 4 D. J. & S. 764; A. G. v. Mid-Kent Co., 3 Ch. 100; Kelk v. Pearson, 6 Ch. 809; Baxter v. Bower, 23 W. R. 805; City of London Brewery Co. v. Tennant, Goodson v. Richardson, 9 Ch. 212, 221 ; L. Stanley v. E. Shrewsbury, 19 Eq. 616; Kilbey y. Haviland, 19 W. R. 698; Musgrave v. Horner, 23 W. R. 125; Krehl v. Burrell, 7 Ch. D. 551, II Ch. D. 146; Doherty v. Allman, 3 App. Cas. 709. The result of the cases is that where Pit, though entitled to relief, has not sustained serious or (pecuniarily) immeasurable injury ; or where on other grounds, including that of the Isalance of convenience or inconven- ience, the Court declines to grant him the extreme and summary relief of a mandatory injunction, an inquiry as to damages may be granted though not prayed for. Instances of mandatory injunctions are: — (a) Against allowing obstructive buildings to remain, and in efEect ordering their removal: Smith y. S., 20 Eq. 500; Merchant Taylors' Co. V. Truscott, 3 D. J. & S. 271; Jessel v. Chaplin, 4 W. R. 610; Rankin v. Huskisson, 4 Sim. 16 ; Great Northern Railway v. Clarence EaUway, 1 Coll. 517. (6) Compelling the removal of obstructions, as in Hervey v. Smith, 1 K. CH. T. S. II.] BREACH OP CONTRACT. 71 & J. 389, 22 3eav. 299 (to the use of flues) ; Bickett v. Morris, L. R. 1 H. L. Sc. 47; Robinson v. Ld. Byron, 1 Bro. C. C. 588 (to the flow of water); Lane v. Newdigate, 10 Ves. 192 (to the right of navigating a canal) ; Neaih Caned Co. v. Ynisarwed Co., 10 Ch. 450 (to the use of an accommodation bridge) ; Morris v. Bradbum, W. N. (7'6) l21, reversed on appeal, 3 Ch. D. 812 (to the use of an accommodation road) ; (to a right of way through a gateway and over a yard: CaAnon v. Villars, 8 Ch. D. 416); Clegg v. Castleford L. B., W. N. (74) 229 (to the use of a drain); and see A. G. V. Fumess Ry: Co., 26 W. R.. 650, for an order compelling railway com- pany to construct' a bridge of the height and width prescribed by the Rail- way Clause Act, 1845, s. 49. ' , , (c) Compelling the restitution of mining barriers: £. Mexborougk v. Bower, 7 Beav. 129; Westminster Brymbo Co. v. Clayton, '65 L. J. Ch. 476. (d) Against allowing pipes to remain on Pit's land, though under a highway: Goodson v. Richardson, 9 Ch. 221. ' ' (e) Compelling the return of letters and other documents: Evitt v. Price, 1 Sim. 483. Section II, — Beeach of Contract. 1. Injunction against practising in a Profession within specified Limits. Let an injunction be awarded to restrain the Deft W. from car- rying on, either alone or in copartnership with any other person or persons whomsoever, the practice and profejssion of an attorney and solicitor, or either of them, in Weymouth or Meleombe Regis, in the county of Dorset, or at any place within fifty miles thereof respectively ; and from continuing to describe himself by any pub- lii3 inscription on his premises at Weymouth aforesaid as a soHcitor — Deft W. to pay the Pit's costs of suit to be taxed. For injunction, against practising in the London Court of Bankruptcy in breach of a covenant not directly or indirectly to practise the business of a solicitor within the City of London or the counties of Middlesex or Essex, see May v. O'Neill, 44 L. J. Ch. 660. For injunction to restrain the Deft from carrying on or exercising the profession or business of a surgeon and apothecary or surgeon, or from acting as a physician in the town of , in the county of , or within the radius or compass of five miles thereof, until the hearing, &c., see Giles V. Hart, 5 Jur. N. S. 1381. ,j For the like order see Gravely, v. Barnard, 18 Eq- 518. 2. Injunction against Exercising U Trade, with Account. Let an injunction be awarded to restrain the Deft E., the elder, from directly or indirectly setting up, exercising, or carrying on the T2 INJUNCTIONS. [part II. trade or business of a gas-meter manufacturer and gas engineer, and matters connected therewith, including in particular the depart- ment of gas fitting on the Pit's premises in &c., and also from di- rectly or indirectly setting up, exercising, or carrying on the trade or business of a gas-meter manufacturer and gas engineer, or mat- ters connected therewith, within twenty miles of G Street, Westminster, until the further order of this court." — So much of Pit's (bill) as relates to the said Deft carrying on the business of a gas fitter within the twenty miles dismissed without costs, without prejudice to any action, in the name of himself and E., the younger. Pit giving an indemnity to the said E., the younger, to be settled by the Judge. — 1. Account of all moneys received by Deft E., the elder, belonging to the copartnership between the Pit and the Deft E., the younger, not already paid over or accounted for. — 2. Ac- count of what is due to the Deft E., the elder, from the copartner- ship in respect of salary or remuneration. — Adjourn &c., — Liberty to apply. — Cla/rkson v. JSdge, 33 Beav. 227. For a similar injunction against " directly or indirectly buying and selling manufactured horsehair, or otherwise carrying on the trade or busi- ness of a horsehair manufacturer at B., or at any other place in the United Kingdom within the distance of two hundred miles from the town of B. : " Harms v. Parsons, 32 Beav. 328. In this case the bill, so far as it sought to restrain Deft from carrying on the business of horsehair dealer as distinct from the purchase and sale of manufactured horsehair, was on construction of the covenant dismissed. From continuing to carry on or recommencing business as a glove man- ufacturer at Woodstock or its neighborhood, and from acting as assistant or agent to any there, other than the Pit, his executors, administrators, and assigns, see Daggett v. Ryman, 16 W. R. 302. From carrying on, or continuing to permit to be carried on in the mes- suage, &c., No. , at Brighton, or any part thei'eof , the trade or busi- ness of a baker or confectioner, see Hodson v. Coppard, 29 Beav. 4. For injunction against carrying on the trade of a telegraphic agent within a limited area, see The Oriental, Ifc. Telegram Co. v. Dodwell, Fry, J., 7 Nov. 1877. For injunction to restrain the vendor of a business from applying to any person, who was a customer of the firm prior to the date of the agree- ment for sale to Pits, privately by letter, personally, or by a traveller, asking such customer to continue to deal with the Deft, or not to deal with Pits : Labouchere v. Dawson, 13 Eq. 322. The case of Ginest v. Cooper, 14 Ch. D. 596, goes further and decides that a trader who has sold his business and goodwill to another for value must abstain not only from soliciting orders from but also from dealing with the old customers. And an injunction was granted limited to solicit- ing orders for goods similar to those dealt in by the trader at the time of the sale. CH. T. S. II.] BREACH OP CONTRACT. 73 3. Breach of Agreement giving Pit for valuable Consideration the Sole and delusive Might of Sale of certain Articles in Deft Oo.'s Premises restrained. Let an injunction be awarded to restrain the Defts, their servants &c., from permitting, or neglecting to prevent, the exhibition or sale of English and foreign china, glass, earthenware, chande- liers, and lamps (not being Venetian glass or terra cotta), by any other persons or person than the Pits within the premises of the Defts; until &c. — Altman v. Boyal Aquarium Co., 3 Ch. D. 228. For injunction to stay Defts evicting Pits from bookstalls, for the sale of books at which Pits had obtained the sole and exclusive privilege, see Holmes v. E. C. Ry., 3 K. & J. 675. 4. Breach of Publican's Agreement with Brewer Restrained. And the Pit by his counsel undertaking to supply to the orders from time to time of the Deft for consumption in the E beer- house &c., ale, beer, and porter, all of good quality, in requisite quantities, at market or fair and reasonable prices : Let a perpetual injunction be awarded to restrain the Deft T,, his agents &e., from supplying, or causing or procuring to be supplied, from any other brewer than the Pit, any ale, beer, or porter which may be con- sumed in the said beer-honse, and from selling in, or from, or keep- ing in the said beer-house any ale, beer, or porter, to be hereafter supplied by him or by any brewer other than the Pit for consump- tion therein. — Deft to pay costs of suit. — Liberty to apply. — Gatt v. Tourle, 4 Ch. 654. For injunction to restrain a yearly tenant, without express notice, from using his house as a beer-shop contrary to a covenant entered into by the owner, who had afterwards sold the house to Deft's lessor: Wilson v. Hart, 1 Ch. 463. 5. Breach of Farming Contract. Upon usual undertaking as to damages and to accept short notice of motion to discharge this order &c.. Let the Deft, his agents &c., be restrained from assigning over, underletting, or parting with the possession of N. farm &c., or any part thereof, without the license in writing of the Pit until the day of , or until further order; and Let the Deft, his auctioneers, or agents &c., be re- strained until the said day of , or further order, from putting up for sale by public auction at N. in the (bill) mentioned, 74 INJUNCTIONS. [part II. Or at any other place, the right to depasture the grass and pasture lands specified in the notice and handbill of sale in the (bill) set out or any part of such lands without the license in writing of the Pit. For form of order for injunction to stay selling, assigning, or under- letting a farm contrary to the covenants in Deft's lease, see Dylce v. Taylor, 3 D. F. & J. 470 ; but on appeal this order was reversed on the merits: lb. 472. 6. Injunction against Removal of May and Straw. Usual undertaking. — "Let an injunction be awarded against the Deft S. to restrain him, his agents &c., from removing, or suf- fering to be removed, from off the demised premises in the (bill) mentioned, any of the hay, straw, and other vestures which have arisen upon the said demised premises or upon any part thereof, and from spending or consuming, or suffering to be spent or con- sumed, in any other place than on the demised premises or on some part thereof, the hay, straw, and other vestures which have arisen upon the said demised premises or upon any part thereof untU &c., or further order." NOTES. For the principles on which the Court acts in cases of breach of cove- nant, viz. that if the contract and breach are clear, or if without actual breach, the right to act in breach is claimed, an injunction will be granted, see Tipping v. Eckersley, 2 K. & J. 264 j Wilkinson v. Rogers, 2 D. J. & S. fi2; Uoyd v. L. C. §• Dooer Ry. Co., 2 D. J. & S. 568. The same importance will not be attached to the amount of damage as in other cases; and it is not essential for the Pit to show serious injury from the breach: A. G. v. Mid-Kent Ry. Co., Z Ch. 100; Western v. M'Dermott, 1 Eq. 499, 2 Ch. 72; Leech y. Schweder, 9 Ch. 463; Dickenson V. Grand June. Can., 15 Beav. 260. So, also, inconvenience to the public from granting the injunction is no ground for refasing it: Raphael v. Thames Valley Ry., 2 Ch. 147. But although the balance of convenience and actual injury are less strictly material in cases of breach of contract, the conduct of the Pit wiU be taken into consideration; e. g., if he has himself broken the agree- ment, he cannot obtain an injunction to restrain Deft from breach in any other respect: Telegraph Despatch Co. v. M'Lean, 8 Ch. 658. For instances of delay, acquiescence active or passive, want of fairness, &o. , which have disentitled the party in whose favor the contract is made to relief, see Kerr, 495, &c. As to restraining by injunction the- breach of an agreement which cannot be specifically enforced, the authorities are not easily reconciled. Cases in which the Court has refused to give effect to such an agreement by restraining that which would be a breach of it, are: Clarke v. Price, CH. V. S. II.J BREACH OF CONTRACT. 75 2 Wils. C. C. 157; Kemhle v. Kean, Kimherley v. Jennings, 6 Sim. 333, 340; Hills V. Croll, 2 Ph. 60; Stacker v. Wedderburn, 3 K. & J. 393; Adamson v. Gill, 16 W. R. 639; Wheatley v. Westminster, §•<;. Co., 9 Eq. 538. And see Peto v. Brighton, Ij'c. Ry., 1 H. & M. 468; Merchants' Co. v. Banner, 12 Eq. 18; Fothergill v. Rowland, 17 Eq. 132, that the Court will not by injunction restrain the breach of an agreement which it cannot specifically enforce ; nor restrain a person from cairryiug put one part of such an agreement while another part remains unperformed: L. Abinger V. Ashton, lb. 358; Pollard v. Clayton, 1 K. & J. 462. But if the agreement is separable, and contains a negative in addition to the positive part (e. g. an agreement to sing at A. 'a theatre, and not elsewhere without his authority, or to write for a particular publisher, and not for any other publipation during the engagement), the Court has restrained a violation of the negative, though it could not compel perform- ance of the positive portion: Lurdey v. Wagner, 1 D. M. & G. 604; Rolfe V. R., 15 Sim. 88; Stiff -f. Cassell, 2 Jur. N. S. 348; Daggett v. Ryman, 16 W. R. 302; Kernot v. potter, 3 D. F. & J. 459; Ogden v. Fossick, 11 W. R. 128, 4 D. F. 8e J. 426. But see Wolverhampton § Walsall Railway Co. v. London §• NorthWestern Railway Co., 16 Eq. 433, 440 (Selborne, C), negativing the idea that the jurisdiction depends on the use of a negative tather than an affirmative form of stipulation. A contract for the sale of chattels to the Fit contained an express n^a- tive stipulation not to sell to any other manufacturer. The Court granted an injunction to restrain the breach of the negative stipulation, although the contract was one of which specific performance would not have been granted: Donnell v. Bennett, 22 Ch. D, 835. By thus restraining any act in l^reach, specific performance has been indirectly compelled, e. g. by restraining railway companies from running trains without stopping at a particular station: Hood v. N. E. Ry. Co., 5 Ch. 525; Rigby v. G. W. Ry. Co., 10 Jur. 488, 531 ; 2 Ph. 44; Churchill V. Salisbury ^Dorset Ry. Co., 23 W. R. 534, 894; Phillips v. G. W. Ry. Co., 7 Ch. 409; Wilson v. Northampton If Banbury Co., 9 Ch. 279; or by restraining Deft from allowing a work covenanted to be done to remain unperformed: Cooke v. Chilcott, 3 Ch. D. 694. A covenant, though positive in terms, may be in substance negative, so that a breach will be restrained by. injunction : Catt v. Tourle, 4 Ch. 654. And in certain cases the negative term, though not expressed, has been implied, and acts inconsistent with the agreement restrained; e.g., an actor engaged at a particular theatre has been restrained from performing elsewhere during his engagement : Webster v. Dillon, 3 Jur. N. S. 432 ; Montague v. Flockton, 16 Eq. 189. But the manager (and probably the publisher) who has engaged the exclusive services of an actor (or author), unless he employs him loses his right to an injunction: Fechter v. Montgomery, 33 Beav. 22. Breaches of covenant or agreement will be restrained; as in the case of a covenant not to practise or set up business within certain limits, nor to solicit custom from the customers of the former employer or of the purchaser: Edmonds v. Plew, 6 Jur. N. S. 1091 (solicitor); Giles y. Hart, 76 INJUNCTIONS. [part II. 8 W. R. 74 (surgeon) ; Fox v. Scard, 33 Beav. 327 (business of a surgeon at Weymouth) ; Benwell v. Inns, 24 Beav. 307 (milk- walk) ; Harms v. Parsons, 32 Beav. 328 (horse-hair manufacturer within 200 miles of Bir- mingham) ; Daggett v. Ryman, 16 W. R. 302 (glove manufacturer in Woodstock or its neighborhood) ; Newling v. Dohell, 19 L. T. N. S. 408, 38 L. J. Ch. Ill (business of a tailor, within 5 miles E. or 2 miles W. of High Holbom) ; Leather Cloth Co. v. Lorsent, 9 Eq. 345 (manufacture of leather cloth in any part of Europe). And see cases collected. Pollock on Contracts, 290. But the restraint must not be unreasonable, having regard to the subject- matter of the contract, nor grossly oppressive as against the covenantor, and such only as to give fair protection to the interests of the covenantee, and not so large as to interfere with the interests of the public: Allsopp V. Wheatcroft, 15 Eq. 59; Leather Cloth Co. v. Lorsent, 9 Eq. 345; Avery v. Langford, Kay, 663; Horner v. Craves, 7 Bing. 743; Mallanv. May, 11 M. & W. 667; Hitchcoch v. Coker, 6 Ad. & E. 438. Stipulations of this nature will be construed strictly: thus a man who has agreed not to carry on a particular trade either in his own name or that of any other person in N. will not be restrained, at least by inter- locutory injunction, from acting as manager at N. for another person engaged in the same trade: Allen v. Taylor, 19 W. R. 35; Clarke v. Watkins, 11 W. R. 319; and see Dales v. Wedber, 18 W. R. 993; Jones v. Heavens, 4 Ch. D. 636. For cases upon such covenants, and instances of a reasonable or unrea- sonable restriction, see Kerr, 506-514 ; Lindley, 879; Mitchely. Reynolds, 1 Smith, L. C. 406. In some cases the covenant has been held divisible, and the restriction held good as to part, e. g. London and Westminster, but void beyond that limit: Mallan v. May, 11 M. & W. 653; Green v. Price, 13 lb. 695, 16 lb. 346. The mode of measuring the prescribed distance is by a straight line measured on the Ordnance map, and not by the nearest way of access: Duignan v. Walker, Johns. 446 ; Mouflet v. Cole, L. R. 7 Ex. 70, 8 Ex. 32, and cases there cited. The question often arises whether a sum named as payable upon the breach of the agreement is a penalty to secure performance, in which case the covenantor does not lose his right to an injunction — or liquidated damages, as an equivalent for non-performance, in which case an injunc- tion will not be granted. But in general this question will not be determined upon interlocutory motion: Coles v. Sims, 5 D. M. & G. 1, Kay, 56. For the numerous cases upon this distinction, see Kerr, 514-519. Restrictive covenants running with the land may be enforced by injunc- tion against purchasers with notice: Carter y. Williams, 9 Eq. 678; Catt V. Tourle, 4 Ch. 654; Western v. McDermott, 2 Ch. 72, 1 Eq. 499; Wilson V. HaH, 1 Ch. 463, 2 H. Se M. 551; Tulk v. Moxhay, 2 Ph. 774; Keppellv. Bailey, 2 M. & K. 517; Richards v. Revitt, 7 Ch. D. 224. See also Pollock Contraots, 214; Dart V. P. 766, for the former distinction between the rules of Equity and Common Law on this subject. Upon the question whether sub-purchasers or assignees are affected with CH. V. S. II. j BREACH OF CONTRACT. 77 notice of the restricted covenant, see Feilden v. Slater, 7 Eq. 523 ; Keates V. Lyon, 4 Ch. 218 ; Clements v. Welles, 1 Eq. 200 ; Hodson v. Coppard, 29 Beav. 4; Renals v. Cowlishaw, 9 Ch. D. 125; Taite v. Gosling, 11 Ch. D. 273. See also the following cases upon the construction and enforcement of restrictive covenants and agreements relating to — (a) Beer-houses and sale of liquors: Allsopp v. Wheatcroft, 15 Eq. 59; L. §■ N. W. My. V. Gamett, Jones v. Bone, 9 Eq. 26, 674 ; Feilden v. Slater, 7 Eq. 523; Pease v. Coates, 2 Eq. 688; Luker v. Dennis, 7 Ch. D. 227; Bp. St. Albans v. Battersby, 3 Q. B. D. 359. (6) Buildings: Master v. Hansard, 34 L. T. N. S. 719; L. Manners v. Johnson, 1 Ch. D. 673; Bowes v. Xato, 9 Eq. 636; Peek v. Matthews, 3 Eq. 515; £m7jf v. De Crespigny, L. R. 4 Q. B. 180; ^. (3. v. Briggs, 1 Jur. N. S. 1085; Child v. Douglas, Kay, 560; i3. Bedford v. British Museum, 2 M. & K. 552; Sayers v. Collyer, 24 Ch. D. 180, 187; Kilbey \. Eaviland, 19 W. R. 698. (c) Offensive trades and nuisances: Johnstone y. Hall, 2 E. & J. 414; Kemp V. Sober, 1 Sim. N. S. 517; Harrison v. Good, 11 Eq. 338. (d) Farming covenants: Fleming v. Snook, 5 Beav. 250; Drury v. Molins, 6 Ves. 328; Burrow v. Sharp, sup. Form 67, p. 74; Crosse -y. Duckers, 21 W. R. 287. (e) Right of shooting: Geams v. Baker, 10 Ch. 355; Pattisson v. (?i7- /orrf, 18 Eq. 259. And see Jeffryes v. £mres, 19 C. B. N. S. 246. (/) Covenants against assignment: Dykey. Taylor, 3 D. F. & J. 467; West V. Dobb, L. R. 5 Q. B. (Ex. Ch.) 460, 4 Q. B. 634; Lehmanny. McArthur, 3 Ch. 496, 3 Eq. 746. (g) Against use of private dwelling-house for trade purposes: Parker y. Whyte, 1 H. & M. 167; Wilkinson y. Rogers, 2 D. J. & S. 62; Kempy. Sober, 1 Sim. N. S. 517 (keeping a girls' school restrained as a breach of such a covenant). German v. Chapman, 7 Ch. D. 271, under a covenant not to carry on any trade, business, or dealing — or suffer any act, &c., to the annoyance, damage, injury, prejudice, or inconvenience of the neigh- boring premises, the user of the premises as a throat and chest hospital, supported by voluntary contributions, and small payments according to the means of the patients, was restrained: Bramwelly. Lacy, 10 Ch. D. 691. See also Johnstone v. Hall, 2 K. & J. 414. A sale by auction on the premises of furniture of the house is no breach of such a covenant: Reeves V. Cattell, 24 W. R. 485. (h) Assignment of pension : an assignment for value of a pension for military service being void under 47 Geo. III. c. 25, will not be enforced by injunction : Lloyd v. Cheetham, 3 GiS. 171 (overruling Knight v. Bulkeley, 4 Jur. N. S. 527, 5 Jur. N. S. 817.) (i) Covenants in a separation deed may be enforced against husband or wife: Sanders v. Rodway, 16 Beav. 207; Hunt v. H., 4 D. F. & J. 221; Flower v. F., 20 W. R. 281. 78 INJUNCTIONS. [part II. Section ni. — Waste. 1. Injunction to stay felling Ornamental Timber and other Waste, Let an injunction be awarded to restrain the Deft D., her ser- vants, workmen, and agents, from cutting down any timber or other trees growing on the estate in the Pit's bill mentioiied, which are planted or growing thereon for the protection or shelter of the several mansion-houses belonging to the said estate, or for the orna- ment of the said houses, or which grow in lines, walks j vistas, or otherwise, for the ornament of the said houses, or of the gardens, or parks, or pleasure-grounds thereunto belonging ; And also (to restrain the Deft D., her servants, workmen, and agents) , from cut- ting down any timber or other trees, except at seasonable times, and in a husband like manner ; and likewise from cutting down sap- lings and young trees, 'not fit to be cut as and for the purposes of timber ; until &c. — ChamierlayTie v. Dummer, L. C, 1 B. C. C. 166, 2 Dick. 600. That this is the form which has been always used in cases of equitable waste, see Eden on Injunctions, 182; L. Tamworlh v. Ferrers, Q Ves. 420. 2. The Like, against the Tenant for Life where the Estate was limited to Trustees without Impeachment of Waste, if with his Privity. Let an injunction be awarded to restrain the Deft Sir J. M. (the father of Pit), his servants &c., from felling or cutting down any timber or other trees now standing in and upon such parts of the lawns, gardens, and pleasure-grounds of C. in the Pit's, (bill) men- tioned, or the lands belonging or adjoining thereto, as were com- prised in and were settled by the indenture dated &c., and which were planted or left standing or growing there by Sir John M., de- ceased {Pllfs grandfather) , for the ornament, protection, or shelter of the mansion-house in the bill mentioned (which Deft had since pulled down), and the said lawn, gardens, or pleasure-grounds; and from felling or cutting down any other timber or other trees which have been planted and are now standing or growing in ave- nues, vistas, lines, or clumps, or separately or singly upon some parts of the said lawn, gardens, and pleasure-grounds of C. afore- said, for the oi-nament, protection, or shelter of the said lawn, gar- dens, or pleasure-grounds, or the other grounds or lands thereto belonging or adjoining ; until &c. — Morris v. M., 16 Sim. 605. CH. V. S. HI.] WASTE. 79 " Or which were planted for the purpose of intercepting the view of objects intended to be kept out of sight " — " And also from committing any other spoil or destruction on the said estate : " Day v. Merry, L. C, 15 Jan. 1810. " Standing or growing for ornament, shade, or shelter of the mansion and buildings at, &c., or any other houses or buildings on the settled estates: " M. Downshire v. Sandys, 6 Ves. 108. 3. Inquiry as to felling Timber — Life Tenant sans Waste. Let the foUowlDg &c., " 1. An inquiry whether the woods called &c., or any or either, and which of them, and the six elm trees, and one oak tree on L. farm, and the oak trees and elm trees on the pasture land in W. farm^ which have been marked for cutting, or any or either and which of such trees, were or was, or have or has been planted, or left standing, by anj' owner in fee or in tail of the H. estate or any parts thereof, for the ornament or shelter of the man- sion-house on the said estate, or of the gardens, park, or pleasure- grounds thereto belonging, or of any road or roads, drive or drives, path or paths leading thereto, for the purpose of' interrupting the view of any object or objects intended to be kept out of sight from the said mansion-house, gardens, park, or pleasure-grounds, or any part thereof. " 2. And in case it shall be so found as to the said woods or any or either of them — an inquiry whether the trees therein have ordi- narily or otherwise, and under what circumstances, been cut for repairs or for sale ; and what estate or interest the person or persons by whom, or bj' whose order or direction, the same were so cut, had in the said H. estate at the time of the cutting thereof; and whether the trees in the said woods, and the said other trees which have been marked for cutting, or any or either and which of such trees, injure or impede the growth of any other trees adjoining or near thereto, which are of so much importance to the purposes of ornament or shelter to the said mansion-house, gardens, park, or pleasure-grounds, that the removal of the trees so marked for cut- ting is essential to such purposes of ornament or shelter." Reserve the question of the costs of this application to be dealt with by the V.-C. — ^ord V. Ti/nte, L. JJ., 2 D. J. & S. 127 (penned by L. J, Turner). For similar inquiries as to ornamental timber: Lushington v. Boldero, M. R., 5 Aug. 1815. And for further inquiry in the same case whether any and which of the timber and other trees so cut and sold injured or impeded the growth of any other trees adjoining thereto, which were of so much importance to the purposes of ornament or shelter intended by the devisor, that the removal of the timber and other trees so cut and sold was essential to such purposes of ornament and shelter: S. C. V.-C, 80 INJUNCTIONS. [part II. 26 July, 1819, on exceptions to report under the above inquiries: 6 Madd. 149. For issue as to the right to cut ornamental timber, and the directions and declarations with which it should be guarded, see Wombwell v. Bell- asyse, 6 Ves. 110 a. For decree declaring Deft entitled to fell all such timber on the devised estate as is mature and fit to be cut, except such as is planted or left standing by way of ornament or shelter with reference to the occupation of the mansion, but not to fell any unripe timber, or timber planted or left for ornament or shelter, with inquiry as to timber cut or marked for cutting, and injunction pending it, Fit undertaking to answer damages, see Turner v. Wright, Johns. 753, 2 D. F. & J. 234. 4. Life Tenant impeachable of Waste allowed such Windfelled lumber as he might properly have cut — Inquiry. " Let, in carrying into effect the order dated &c., the Deft H. be allowed the benefit of the sale of all such trees felled by the wind which he would have been entitled to fell and cut himself, and to all proper thinnings, and all coppices which are periodically cut in the nature of crops, whether osiers, hazel, or oak ; And Let an inquiry be made what portion of the sum of $ — — received by the Deft H. derived from timber or cuttings of that description contained in the account brought in by him under the said order, the said Deft H. is entitled to." — Costs of application to be costs in the cause. — Bateman v. SotchJein, 31 Beav. 486. 6. Injunction against felling Timber already sold, on Security for Damages, with Inquiry as to felling without impair- ing, ^e. lN.njifCTioN to restrain the Deft from felling 500 oak trees, or any other trees serving for ornament or shelter to the mansion-house &c. — Direction ' ' to approve of a proper security to be given by the Pit to the said Deft for the value of the said 500 trees, and for any loss or damage which the said Deft may incur or sustain by reason of his being prevented from completing the sale of the said 500 oak trees, or any of them, in case this Court shall hereafter be of opinion that this order ought not to have been made ; And at the request of the said Deft, but without prejudice to his right to appeal. Let an inquiry be made whether any and which of the said 500 oak trees, or any and what other trees standing and growing in the said three woods, can be cut without impairing the beauty of the place, as it stood at the time of the execution of the settlement of ifec." Liberty to apply. — Marker v. M., 9 Hare, 1 ; and see Wom,bweU v. Bellasyse, 6 Ves. 110 a. CH. V. S. III.] WASTE. 81 6. Waste by Tenant — Interim Order. Usual undertaking as to damages — Let the Deft C, his agents and workmen, be restrained until the day of -, or until further order, from making any alterations in the premises comprised in the lease of the day of in the (bill) men- tioned, which may further interfere with the stability of the house No. 1, at &e., comprised in the said lease, and from making any further alterations of the house No. 2, at &c., also comprised in the said lease. 7. The JAlie — Mandatory Injunction at the Hearing. Injtjnction to restrain Deft from making any further alterations in the premises &c. — "and from otherwise committing waste in the said premises, and from permitting to remain the openings made by him in the party walls, and in the main wall at the rear of the said premises in the (bill) &c. , and from permitting to remain the baker's oven and wooden shed at the rear of the said premises, and from permitting such parts of the said premises as have not been converted hy him into a shop, as in the (bill) mentioned, to remain in any state or condition other than the state or condition in which the same were at the date of the execution of the said indenture of lease, except that Deft is not to be required to restore the dwarf wall and railings in front of the premises &c., nor to remove the bow window on the first floor of the house &c." Deft to pay Pit's costs of suit, to be taxed. — Liberty to apply. And see Smyth v. Carter, 18 Beav. 78, for an injunction restraining a tenant from pulling down a house and building another. For an injunction at suit of owners in fee restraining a contractor em- ployed by the lessees to do certain works on the property from acts of spo- liation, and in effect limiting him to the terms of his contract: Allen v. Martin, 20 Eq. 462. For interim order at chambers under new procedure to stay Deft from pulling down a house, partly erected for him by Pit under contract: Drake V. Dower, W. N. (75) 230. 8. Interim Order staying Removal by Mortgagor of Fixtures from mortgaged Property, continued till Judgment in fore- closure Action. Usual undertaking — " Let the Defts the L Co. continue to be restrained until judgment in this action or further order from removing, disturbing, or injuring the fixtures belonging to the mortgaged property in the writ of summons mentioned, or commit- 6 82 INJUNCTIONS. [part II. ting any manner of waste whereby the Pit's security in the said writ also mentioned may be diminished." — Appoint receiver of the rents and profits of the mines, collieries, and property, and to manage the same. WASTE. At Law there was neither preventive nor compensative remedy against acts of waste, however excessive, committed by tenant for life sans waste: see Lewis Bowles' Case, 11 Co. 79 b; and notes to Davis v. D. Marlboi-ough, 2 Swa. 146, &c. But in Equity the jurisdiction to restrain the improper and abusive exercise of this legal power to the detriment of those interested in remain- der, has long been exercised, though first defined and settled in the lead- ing case of Garth v. Cotton, 1 L. C. Eq. 697. For early instances see Craig on Trees, 26. And on the principle that omne majus continet in se minus the decisions of Courts of Equity with respect to equitable waste will still, it is conceived, be usefully consulted in questions of waste under the new procedure. Equitable waste has been defined as " wilful and malicious," and also as "extravagant and humorsome" waste: Garth v. Cotton, L. C. Eq. 697; Ahrdham v. Buhl, 2 Freem. 55; Aston v. A., 1 Ves. 264, 265; and in more recent cases as " an excessive or unconscionable use " of a legal power: Micklethwaite v. M., 1 D. & J. 504; or as aggravated acts of spo- liation and destruction, which, apart from any malicious motive, " a pru- dent man would not do in the management of his own property: " Turner V. Wright, 2 D. F. & J. 234; E. Talbot v. Hope Scott, 4 K. & J. 96; and see Kerr, 275. Acts of equitable waste which have been restrained are — (a) Pulling down the mansion-house: Vane v. L. Barnard (Raby Cas- tle Case), 2 Vern. 738; or other buildings on the estate: Williams v. Day, 2 Ch. Ca. 32; Aston v. A., 1 Ves. 264. (6) Cutting down timber planted for ornament and shelter: Chaniber- layne v. Dummer, 1 Bro. C. C. 166; Kekewich v. Marker, 3 Mac. & G. 311; Marker v. M., 9 Hare, 1: Campbell v. Allgood, 17 Beav. 623; Morris v. M., 15 Sim. 205; Welksley v. W.,& Sim. 497. (c) Cutting saplings or underwood at unseasonable times : Hole v. Thomas, 7 "Ves. 589 ; Dunn v. Bryan, Ir. R. 7 Eq. 143 ; and generally any act of wanton destruction and spoliation of the property: see Kerr, 275. Tenant in fee subject to an executory devise over, like tenant for life sans waste, might cut timber but not commit equitable waste : Turner v. Wright, Johns. 740 ; and see Blake v. Peters, 10 W. R. 836, 1 D. J. & S. 345. As between tenants in common, acts of spoliation or destructive waste only will be restrained: Hole v. Thomas, 7 Ves. 589 ; Arthur v. Lamb, 2 Dr. & Sm. 428; Bailey v. Hobson, 5 Ch. 180. And this rule applies to the rights of tenants in common in a mine: Job v. PoUon,20 Eq. 84.' The grant of a right of shooting does not entitle the grantee to restrain the grantor from cutting trees: Geams v. Baker, 10 Ch. 355; nor from using the land in the ordinary and accustomed way, provided his acts are CH. V. S. III.] WASTE. 83 not for the express purpose of destroying or damaging what he has granted: Jeffryes v. Evans, 19 C. B. N. S. 246; Pattisson v. Gilford, 18 Eq. 262. Ordinary or legal, as distinguished from equitable, waste consists in the commission of acts which, from his limited interest in the property, the tenant has no authority to do; viz., acts which change without bettering, the nature of the property, or which, though effecting a personal benefit, diminish the value of the inheritance. See Yool on Waste, 1 &c. ; Kerr, 239. Such acts are cutting timber, pulling down or even rebuilding houses, ploughing up meadow or ancient pasture, opening mines, &c. For definitions of waste, see Com. Dig. Waste ; Co. Litt. 53 ; Viner's Ab. Waste; Kerr, 238, &c. On the question of the Sights of tenant for life in trees, see Eonywood V. H., 18 Eq. 807, and Craig on Trees. A very wide extension has been given to the term "ornamental tim- ber," and the doctrine of the Court has been that everything planted, or left standing, for ornament, by the settler (whose intention is made the test, Coffin V. C. , Jac. 70) will be protected : M. Downshire v. L. SancJys, 6 Ves. 107; Wombwell v. Bellasyse, 6 Ves. 110 a; Ford v. Tynte, 2 D. J. & S. 127; and though it has been held that tenant for life sans waste may deal with ornamental timber as a prudent owner in the proper or ordinary course of management would (Halliwell v. Phillips, 4 Jur. N. S. 607), this more liberal view has been dissented from in Ford v. Tynte, 2 D. J. & S. 127. Although the mansion-house has been pulled down, tenant for life sans waste has been restrained from cutting the ornamental timber: Morris v. 71/., lo Sim. 505; Wellesley v. W., 6 Sim. 497; on the principle, it seems, that tenant for life sans waste cannot, by pulling down the house, entitle Mmself to the ornamental timber. But thinning trees in a reasonable and husbandlike manner is not legal, nor, ct fortiori, equitable waste: Bagot v. B., 32 Beav. 509; Eonywood v. E., 18 Eq. 306; Dunn v. Bryan, Ir. R. 7Eq. 143; Kerr, 240. And generally tenant for life sans waste may cut all such timber (except ornamental) as the absolute owner, having due regard to his present interest, and to the permanent advantage of the estate, might properly cut: Vincent v. Spicer, 22 Beav. 380. Prima facie, the term " timber " is confined to hard woods such as oak, elm, and ash, and does not, except by the custom of the particular county, include soft woods (larch, Scotch fir, or willow, &c.): Eonywood v. H., sup. ; Phillipps v. Smith, 14 M. & W. 589; Craig on Trees, 11. The term " timber-like trees " means, it seems, trees of the timber class which have not yet attained sufficient growth, and does not include other trees not of that Class: Lowndes v. Norton, W. N. (76) 221. Opening and working ndnes. — A tenant for life (subject to waste) cannot open, but may work mines already opened: Whitfield v. Betvit, 2 P. Wms. 240; Clavering v. C, lb. 388; and see Knight v. Mosely, Amb. 176. But working new seams of coal by a new shaft is not opening a new colliery: Spencer v. Scurr, 31 Beav. 334. 84 INJUNCTIONS. [part II. Whether he may open a dormant or abandoned mine without commit- ting waste, is a question of evidence on which an inquii-y will be directed: Bagot V. B., 32 Beav. 509. And see Viner v. Vaughan, 2 Beav. 460; Spencer v. Scurr, 31 Beav./ 334. Under a lease of land (without mentioning mines) the lessee may work open but not unopened mines : Clegg v. Rowland, 2 Eq. 160; Co. Litt. 54 b. And as to the construction of a power to let an estate " with the mines and minerals," and the rights of lessee thereunder, see Daly v. Beckett, 24 Beav. 114. Unless the nature and context be repugnant, stone will be included in a lease of mines and minerals: BeU v. Wilson, 1 Ch. 303; Midi. Ry. v. ChecUey, 4 Eq. 19. As to the right of tenant for life or years to take reasonable estovers of gravel, clay, coal, and limestone, see Kerr, 247, citing 2 Rol. Abr. 816. Converting meadow or pasture into arable is prima facie an act of waste : Simmons v. Norton, 7 Bing. 648. And see on this question, D. St. Albans v. Skipwith, 8 Beav. 354. Deer in a park : — Their reclamation is an act of waste, as when re- claimed they cease to be part of the inheritance: Ford v. Tynte, 2 J. & H. 152; Morgan v. Abergavenny, 8 C. B. 768. And see Maynard v. Gibson, V.-C. B., W. N. (76) 204, for a declaration that tenant for life was not entitled to deer and pigeons absolutely, but only to their reasonable enjoyment. Mortgagor in possession will be restrained from waste, if the security be insufficient: King v. Smith, 2 Hare, 241; — or, if he has become bankrupt, until assignees are appointed : Hamp- ton V. Hodges, 8 Ves. 105. So also after decree for account in foreclosure suit: Goodman v. Kine, 8 Beav. 379. And a person in possession under agreement to purchase wUl also be restrained from waste: Crockford v. Alexander, 15 Ves. 138. Mortgagee in possession, whose security is sufficient, will be restrained from waste. See Millett v. Davey, 31 Beav. 470; Fish. Mort. 949. In cases of permissive waste, i. e. suffering the estate and buildings to fall out of repair, the rule of the Court of Chancery (notwithstanding a decision to the contrary in Parteriche v. Powlet, 2 Atk. 383) has been not to interfere either to prohibit by injunction, or to give satisfaction by account: L. Castlemain v. Craven, 22 Vin. Ab. tit. Waste, p. 523; Lansdovme v. L.,\ Jac. & W. 522; Poioys v. Blagrave, 4 D. M. & G. 448. , — except under special circumstances. See Yool, 58 (citing CaldwaU V. Baylis, 2 Mer. 408; Marsh v. Wells, 2 S. & S. 87). But at law, tenants for terms of years and tenants for life were liable for both commissive (voluntary) and permissive waste: Yellnwly v. Gower, 11 Ex. 274; Harnett v. Maitland, 16 M. & W. 257; Co. Litt. 53. After the death of the particular tenant, however, without some partic- ular circumstances, there was no remedy, either at Law or in Equity, for permissive waste: Turner v. Buck, 22 Viu. Ab. 523. For the distinction between acts of waste and bad husbandry; and that the Court will interfere in the former but not in the latter case, see Kerr, 249 (citing Bro. Ab. Waste, pi. 5; 2 Rol. Ab. 814). CH. V. S. III.] WASTE. 85 In cases of meliorating waste, i. e. permanent alteration of the charac- ter of land or buildings, even though the value be increased, or rebuilding a house more large than it was before (so that there will be more charge for the lessor to repair it: Co. Litt. 53), an injunction and an account may be obtained: see Yool, 21. Accordingly, tenant was restrained from altering the property by pull- ing down and rebuilding a house against the landlord's will: Smyth v. Carter, 18 Beav. 78; and compelled to reinstate premises which had been altered in excess of a license to convert a dwelling-house into a shop: Doggett v. Cumow, V.-C. B., 8 March, 1876, sup. Forms 7, 8. See also observations of M. R., Jones v. Chappell, 20 Eq. 540, 541, that the erection of buildings upon land, which improve the value thereof, is not waste, and that the owner or lessor will not obtain an injunction in such a case, but be left toihis remedy in damages: see Doherty v. Allman, 26 VV. E. 513, 3 App. Cas. 709. ANCILLARY BELIEF IN RESPECT OF WASTE. Tenant for life will not be allowed to benefit by his own wrong, and when he has committed acts of waste must account for the proceeds, or make good the damage done: Seagram v. Knight, 2 Ch. 628; Bateman v. HotchUn, 31 Beav. 486; Blake v. Peters, 1 D. J. & S. 345; D. Leeds v. Amherst, 2 Ph. 120, 14 Sim. 357; Williams v. D. Bolton, 3 P. Wms. 268. Even in cases of equitable waste the whole proceeds have been given to the owner of the first estate of inheritance: Butler v. Kynnersley, 8 L. J. Ch. 67, 7 L. J. Ch. 150; Bolt v. SomervUle, 2 Eq. Ca. Ab. 759. But according to the general rule the proceeds are invested so as to fol- low the uses of the settlement, giving the income to the successive owners for life (except the wrong-doer) : Honywood v. //. , 18 Eq. 307 ; and see Bagot V. B., 32 Beav. 509; E. Cowley v. Wellesley, 1 Eq. 656; Gent v. Harrison, Johns. 519; Lushington y. Boldero, 15 Beav. 1, 9, n.; and the corpus to the fir.st person who, from the nature of his estate, would have been entitled to cut the timber: Lowndes v. Norton, 6 Ch. D. 139. The proceeds of periodical cuttings or trimmings which are not acts of waste have been held to belong to tenant for life as incident to his estate: Pidgeley v. Bawling, 2 Coll. 275; Bateman v. Hotchkin, 31 Beav. 486. The proceeds of timber blown down and of cuttings made by direction of the Court, or of decaying timber, will be invested, and the interest only given to tenant for life: E. Cowley v. Wellesley, 1 Eq. 656; Lushington v. Boldero, 15 Beav. 1, 7; Tooker v. Annesley, 5 Sim. 235; Wickham v. W., 19 Ves. 419. According to the earlier cases, however, the proceeds of timber severed either by accident or by a trespasser were held to belong to the owner of the first estate of inheritance, to the exclusion of tenant for life: D. Newcastle v. Vane; WhUfield v. Bewit, 2 P. Wms. 240, 241, 3 P. Wms. 267. But a tenant for life sans waste would not be restrained from properly cutting timber (Bridges v. Stephens, 2 Sw. 150, n. ; Smythe v. S., 2 Sw. 251; A. G. V. D. Marlborough, 3 Madd. 498), he was absolutely entitled to the proceeds of timber cut by direction of the Court: X. Lovat v. D. Leeds (2), 2 Dr. & Sm. 75; or to windfalls: Lewis Bowles^ Case, 11 Co. 796. 86 INJUNCTIONS. [part U. The amount of damages to be recovered in respect of equitable waste was measured by the injury to the inheritance: Bubb v. Yeluerton, 10 Eq. 465. Credit is given for the application of the proceeds by tenant for life in permanent improvements: Birch Wolfe v. Birch, 9 Eq. 683. And neither tenant for life sans waste nor his estate were made account- able for the materials of a mansion-house pulled down, when such mate- rials have been applied in rebuilding: Morris y. Jf., 3 D. & J. 323 ; S. C. Form 2, p. 78. So also tenant for life wiU not be charged with sums produced by acts of (technical) waste which have improved the land (e. g. by digging and carrying away turf): Harris v. Ekins, 20 W. R. 999. The claim in respect of acts of equitable waste must be made within six years from death of tenant for life: Birch Wolfe v. Birch, 9 Eq. 683; D. Leeds v. E. Amherst, U Sim. 365, 2 Ph. 117; S. C. p. 186. But the right of action or account for the proceeds of legal waste accrues, it seems, and the Statute of Limitations begins to run from when the wrong was committed, not from the death of tenant for life : Higginbotham v. Hawkins, 7 Ch. 676; Birch Wolfe v. Birch, 9 Eq. 683; Seagram v. Knight, 3 Eq. 398; and see Gent v. Harrison, Johns. 517. Delay is very material on such a claim: see Bagot v. B., 32 Beav. 509; Harcourt v. White, 28 Beav. 303; Ernest v. Viiiian, 12 W. E. 295. Interest on the produce of waste is chargeable from the death of tenant for life: Bagot v. B., sup.; and see D. Leeds v. Amherst, 14 Sim. 367; Garth V. Cottort, 1 L. C. Eq. 697. Section IV. — Trespass. I. — TRESPASS (OKDINAKt). 1. IryvMction against Trespassing on PWs Land. " Let the Deft T., his agents &c., be restrained until judgment in this action, or until further order, from committing any trespass upon the Pit's estates at &c. , devised by the will of &c. , or any part thereof." For injunction against cutting trees in a wood, and acts of trespass in exercise of an alleged legal claim: Stanford v. Hurlstone, 9 Ch. 116; and see Lowndes v. Beltle, 10 Jur. N. S. 226. 2. Mandatory Injunction against laying Pipes on PWs Land or under a Highway, " Let a perpetual injunction be awarded to restrain the Deft E., his servants &c., from allowing any pipes which hare been already laid by the Deft in or through the land or soil beneath the surface CH. T. S. IV.J TRESPASS. 87 of the highway adjoining the Pit's lands in the (bill) mentioned to the undivided moiety whereof the Pit is entitled as in the (bill) also mentioned to remain therein." — Deft to pay Pit's costs of suit, to be taxed &c. — Goodson v. Bicfmrdson, 9 Ch. 221. For injunction restraining an encroachment by buttresses on Pit's land, see Holmes v. Upton, 9 Ch. 214, n. 3. Mandatory Injunction against laying Rails on Pit's Land, or across Bridge. Usual undertaking. — " Let an injunction be awarded to restrain the Defts &c., their contractors, workmen &c., until &c.,from lay- ing or placing or aflixfng, or from permitting to continue or remain, laid, placed, or affixed on or to the bridge, or the approaches thereof, or any part of the land of the Pits in the Pits' (biU) respectively mentioned, any rails, tramplates, sleepers or other articles, or any earth, stones, or rubbish, and from making or constructing, or per- mitting to continue or remain, any tramroad or railroad over, upon, or across the said bridge, or the approaches thereto, or upon any part of the land of the Pits, and from making, or permitting to continue or remain, any embankment in any part of the said land of the Pits for the purpose of a tramroad across the said bridge, and from excavating or in any manner interfering with any part of the' fabric of the said bridge, and from digging any holes in, or otherwise injuring or interfering with, the soil of the Pits' said land, and from using the said bridge^ or the approaches thereto, or any part of the said land of the Pits for the purpose of a tramroad, or for the passage along such tramway of wagons or vehicles of any kind either for the carriage of coal, minerals, or other articles, or otherwise." Neath Canal Co. v. Yniaarwed JResolven Colliery Co., L. J., 3 May, 1875 (varying order of V.-C. B., 23 March, 1875, by adding the usual undertaking by Pits as to damages) : S. C. 10 Ch. 450. For injnnction to restrain Deft from permitting photographic room to remain on the flat roof of the Pit's shop, on the ground of trespass upon the construction of Pit's lease, see Martyr v. Lawrence, 2 D. J. & S. 266. To restrain the obstruction of an easement by preventing the passage of smoke from flues: Hervey v. Smith, 1 K. & J. 389. See also for ad- ditional instances of injunctions in Equity to stop a mere trespass: L. 5" N. W. By. Co. V. Lane. Ry. Co., 4 Eq. 174; Hodgson v. Duce, 2 Jur. N. S. 1014; or trespass in the exercise of disputed rights over land, or under color of title: Greenhalgh v. Manch. Ry. Co., 3 M. & Cr. 784; Fooks v. Wilts Ry. Co., 5 Hare, 199. 88 INJUNCTIONS. [part II. NOTE. Continued acts of trespass or of irreparable injury to property ■will be restrained by perpetual injunction, without compelling the party injured to obtain verdicts at common law: Goodson v. Richardson, 9 Ch. 221; Allen V. Martin, 20 Eq. 462; L. §■ N. W. By. Co. v. Lane, S^c. Ry. Co., 4 Eq. 174; Ardley v. SL Pancras Guardians, 39 L. J. Ch. 871. And see Turner v. Ringwood Highway Board, 9 Eq. 418; Kerr, 287, &c. U. — ANCIENT LIGHTS. 1. Order for Interlocutory Injunction from obstructing Ancient Lights. Usual undertaking as to damages. — " Let an injunction be awarded to restrain the Deft L., bis agents &c., from erecting on the site of the old parapet wall between No. 35 B and the courtyard of No. 34 B in the Pit's (bill) mentioned, or on the site of the said courtyard, any wall or other structure, and from constructing any bridges or passages over or across the said courtyard so as to darken, injure, or obstruct any of the ancient lights of the Pit as the same were enjoyed previously to the taking down by the Deft of No. 34 B until &c., and also to restrain the Deft L., his agents &c., from erecting on the sites of Nos. 9 and 10 P any wall or building so as to darken, injure, or obstruct any of the an- cient lights of the Pit as the same were enjoyed previously to the taking down by the Deft of Nos. 9 and 10 P until " &c. 2. Perpetual Injunction as to Light — Angle of Incidence. "Let an injunction be awarded against the Defts B. &c., per- petually to restrain the said Defts, their servants &c., from raising or heightening the Defts' buildings in J Street &c., in the plead- ings mentioned, to a greater height than they stand at present, namely, 46 feet from the level of the pavement on the west side of J Street aforesaid ; but this injunction is not to prevent the Defts from putting on a sloping roof higher than 46 feet, so long as the angle of incidence of light over such sloping roof on the centre part of the ground-floor windows of Nos. , , in J Street aforesaid, be not less than 45 degrees from the perpendicular above the point of incidence. — Defts to pay Pit's costs of suit, and of motion for injunction to be taxed. — Mackett v. Saiss, 20 Eq. 494. The word " air," as coupled with light, ought not to be inserted in these orders, unless by special direction : Baxter v. Bower, 23 W. R. 805 ; City of London Brewery Co. v. Tennant, 9 Ch. 212. CH. V. S, lY.] ANCIENT LIGHTS. 89 3. Mandatory Injunction against ohstructing Ancient Lights — Operation suspended. "Let a perpetual injunetioa be awarded to restrain the Deft L. from permitting any buildings raised by him above the level of the old houses in the Pit's (bill) mentioned on the site thereof to remain, and from erecting any buildings or permitting any erections to remain on the site of the said former houses, so and in such man- ner as to darken, injure, or obstruct the ancient lights and windows of the house and premises in the Pit's (bill) mentioned, whereof the Pit is lessee, as the same were enjoyed previously to the taking down of the said houses ; but the operation of the said injunction is suspended until after the day of ." — Deft to pay Pit's costs of his cause to be taxed. — Liberty to apply. For injunction on bill by the owner of one of the houses in a row to restrain Deft, the owner of another of the houses, from building a bay window, contrary to the covenant of his vendor with the original land- owner, of which he had notice: Western v. Macdermott, 1 Eq. 494(aflarmed, 2 Ch. 72). 4. Mandatory Injunction as to obstructing Ancient Lights — Operation suspended — Arbitrator to decide whether Order had been complied with. " Let a perpetual injunction be awarded to restrain the Deft S., his contractors, builders, agents, and workmen, from permitting to remain erected or built upon, along, or adjoining the party wall form- ing the boundary between the Pit's premises and the Deft's premises as in the pleadings mentioned, any wall, erection, or building of greater height than the height of the said party wall as it stood at the commencement of the building operations of the Deft in the plead- ings also mentioned, and from permitting to remain erected or built on the site of the back yard of his premises, or any part thereof, any wall, building, or erections, so or in such manner as to darken, injure, or obstruct any of the ancient lights or windows of the Pit's premises, as the same ancient lights and windows were enjoyed pre- viously to the erection of by the Deft in the pleadings men- tioned ; and by consent Let, in the event of any difference arising between the parties whether the Deft has pulled down suflScient to comply with the said injunction, such difference or differences, so often as they may respectively arise, be refeiTcd to H,, of &c., as arbitrator ; and the costs of every such reference are to be in the discretion of the said arbitrator." — By consent the Deft to pay Pit -for damages, and his costs of suit to be taxed — ' ' and the 90 INJUNCTIONS. [PAET II. (operation of the) injunction hereby awarded is to be suspended until the day of ." — Liberty to apply. — Smith v. S., 20 Eq. 500. This order follows Tales v. Jack, 1 Ch. 295, as to form of the injunction, but omits the directions there given as to applying in Chambers with respect to pulling down and rebuilding Deft's buildings. And these directions, though sometimes given since, are not now inserted. The proper words are as above, ^^ so as to darken, injure, or obstruct." See Dent V. Auction Mart Co., 2 Eq. 228, 235; Stokes v. City Offices Co., 2 H. & M. 650. For reference to a surveyor in case of any dispute whether what the Deft pulled down was sufficient to meet the exigency of the order, see Jessel V. Chaplin, 2 Jur. N. S. 931, Ex. For an injunction limited to ancient windows and altered windows when restored, and made conditional upon Pit submitting to an order within a limited time to block up or close permanently against any access of light (or air) from Deft's premises the several windows (new or altered), as to which Deft was entitled to obstruct the access of light (or air), but with liberty for Pit, as to the altered windows, to restore them to their original situation »nder the dii'ection of the Judge, see Weatherley v. Ross, 1 H. & M. 349. 5. Injunction refused — Inquiry as to Damages. "This Court doth not think fit to grant any injunction in this cause ; but Let an inquiry be made what if any sum of money is proper to be awarded to be paid by the Deft to the Pit by way of compensation for any injury that has been sustained bj' the Pit by the erection of that part of the party wall in the (bill) mentioned adjoining that part of the shop belonging to the Pit's premises which is lighted by means of the dome or skylight in the (bill) mentioned." — And after certificate, liberty to apply. For the like inquiry, see Senior y. P.awson, 8 Eq. 330; Isenberg v. E. I. Ho. Co., 3 D. J. & S. 263; Curriers' Co. v. Corhett, 2 Dr. & Sm. 355. For assessment of damages by the Judge at the hearing at , where an injunction was refused, see Nat. Prov., Sj-c. Co. y. Prudential Ass. Co., 6 Ch. D. 757, 26 W. K. 26. NOTES. The right to an injunction to restrain an interference with ancient lights exists whenever an action could be maintained at law, and dam- ages — not merely nominal, but really substantial or considerable — re- covered: Aynsley v. Glover, 18 Eq. 544. And to give a right of action and sustain the issue there must have been " a substantial privation of light sufficient to render the occupation of the house uncomfortable, or to prevent Pit from carrying on his accus- tomed business on the premises as beneficially as he had formerly done: " Dent V. Auction Mart Co., 2 Eq. 246, adopting the principle laid down in CH. V. S. IV.] ANCIENT LIGHTS. 91 Back V. Stacey, 2 C. 8e P. 466; Parker v. Smith, 5 C. & P. 438; Kino v. Rudkin, 6 Ch. D. 160; Calcrajl v. Thompson, 15 W. E. 387; Ecclesiastical Commissioners v. Kino, 14 Ch. D. 220, 223, 224. The onus of proving the injury rests upon the Pit: Curriers' Co. v. Corbett, 4 D. J. & S. 764; see also Ratcliffe v. D. Portland, 10 W. R. 687, that the threatened injury must not rest on mere opinion. After some conflict of opinion it seems settled that the fact that an owner of ancient lights has altered and enlarged his windows or added new ones will not deprive him of the right to an injunction against inter- ference with his ancient lights — provided there be a material injury to that which is a clear legal right, and damages will give no adequate com- pensation: Aynsley v. Glover, 18 Eq. 544; Staight v. Burn, 5 Ch. 168; Tapling v. Jones, 11 H. L. C. 290; unless the house has been altered into a new building substantially, with windows in a different plane: Nat. Prov., Src Co. V. Prudential Ass. Co., 6 Ch. D. 757. These cases have virtually overruled Heath v. Bucknall, 8 Eq. 1 (which decided that after an alteration or enlargement of windows the only relief was in damages), and also the common-law decisions — Renshaw v. Bean, 18 Q. B. 112 ; Hutchinson v. Copestake, 8 C. B. ST. S. 102, 9 C. B. N. S. 863; and extended the protection which in Turner y. Spooner, 1 Dr. & Sm. 467, and in Currias' Co. v. Corbett, 2 Dr. & Sm. 853, was apparently limited to cases where the change was trivial or immaterial, e. g. putting in improved frames and glass; and in Weatherley v. Ross, 1 H. & M. 349, was limited to ancient windows when restored. Pit being ordered, as the condition of obtaining any injunction, to block up the new and to restore the altered windows to their original size. According to the most recent statement of the law by Jessel, M. R., the right to an injunction is not limited by the amount of light necessary for the purpose for which the room is being used, without regard to any future use to which the room may be applied, but is an absolute inde- feasible right to the enjoyment of the light without reference to the pur- pose for which it has been used — "to the blessing and comfort of the entry of the direct rays of the sun: " Aynsley r. Glover, 18 Eq. 544; Hack- ett V. Baiss, 20 Eq. 494 ; Yates v. Jack, 1 Ch. 295 ; Calcraft v. Thompson, 15 W. R. 387; Kelk v. Pearson, 6 Ch. 809; Dent v. Auction Mart Co., 2 Eq. 238; Dyers' Co. v. King, 9 Eq. 438; Moore v. HaU, 26 W. R. 401, 3 Q. B. D. 178. These cases, it may be observed, are opposed to' some of the earlier cases, e. g. Jackson v. Duke of Newcastle, 3 D. J. & S. 275, deciding that the Court will not interfere if the present use of the room is not materially injured, and that any future use to which the room may be applied will not be regarded. See also Curriers' Co. v. Corbett, 13 W. R. 1056; Lanfranchi v. Mac- kenzie, 4 Eq. 421; Dickinson v. Harbottle, 28 L. T. N. S. 186; Adamson V. Gatty, W. N. (70) 184, as opposed to the theory of an absolute and unqualified right to the same amount of light as has been hitherto enjoyed. The distinction between the extent of the right of town and country occupiers to protection of their ancient rights, taken by Lord Cranworth in Clark v. Clark, 1 Ch. 16 (and apparently approved in Kelk v. Pearson, 92 INJUNCTIONS. [part H. 6 Ch. 812), -was abandoned by himself in the later case of Yates v. Jack, 1 Ch. 295, and seems to have been now exploded : Hackett v. Baiss, sup. ; Martin v. Headon, 2 Eq. 425; Lyon v. Dillimore, 14 W. R. 511. The effect of the Prescription Act (2 & 3 Wm. IV. c. 71), s. 3, is to give an absolute and indefeasible right to the access and use of light after 20 years of uninterrupted enjoyment; unless such enjoyment is shown to have been by consent: TaplingY. Jones, 11 H. L. C. 290; Lanfranchiy. Mackenzie, 4 Eq. 427; Truscott v. Merch. Taylors' Sch., 11 Ex. 855. But the right cannot be acquired during unity of possession of the house and the land over which the right would extend: Ladyman v. Grave, 6 Ch. 768. The nature and extent of the right to access of light have not been altered by this Act, but merely the mode in which that right may be obtained: Kelk v. Pearson, 6 Ch. 813; Leech v. Schweder, 9 Ch. 472. The right to ancient lights arising by contract is higher (and substan- tial intel:ference is not so material) than when acquired by enjoyment; AUen V. Seckham, 47 L. J. Ch. 742. If land has been conveyed without reserving the easement of light, the vendor, or persons claiming under him, cannot complain of an obstruction by persons claiming under the purchaser, see Ellis v. Manchester Carriage Co., 2 C. P. D. 13; Wheeldon v. Burrows, 27 W. K. 165. The ancient formula by which in these obstruction cases " air " was invariably coupled with " light " not only in the pleadings and order, but a,lso in the evidence, has recently been most distinctly disapproved: City of London Brewery Co. v. Tennant, 9 Ch. 212; Baxter v. Bower, 23 W. K. 805. In the absence of special circumstances, the erection of an opposite building, so as to diminish any portion of the 45 degrees of light, is an interference with light which in general will be restrained by injunction: Hackett v. Baiss, 20 Eq. 494 ; City, of London Brewery Co. v. Tennant, 9 Ch. 212. There is no conclusion of law that a building will not obstruct the light coming to a window if it permits the light to fall on the window at an angle of not less than 45 degrees from the vertical. The question of the amount of obstruction is always a question of fact which depends on the evidence in each case. Therefore a Pit whose ancient light is obstructed is entitled to a judgment in general terms, without referring to the angle of incidence of the light, unless there is some special evidence justifying the insertion of such a clause: Parker v. First Avenue Hotel Co., 24 Ch. D. 282, reviewing Hackett v. Baiss, 20 Eq. 494. A mere tenant may obtain an injunction to restrain obstruction of light, but the injunction will be limited to the continuance of his tenancy: Simper v. Foley, 2 J. & H. 555. Tie grant of a lease of lights and easements may be so controlled by the antecedent agreement to which the lease refers as to deprive the lessee of the right to restrain an obstruction of light by other lessees: Salaman V. Glover, 20 Eq. 444. On the question whether a Pit, who has not established a case for relief by mandatory injunction in respect of interference with his ancient lights, may obtain relief by an inquiry as to damages, see Lady Stanley v. E. Shrewsbury, 19 Eq. 616; City of London Brewery Co. v. Tennant, 9 Ch. CH. V. S. IV.J MINERAL EIGHTS. 98 212; Calcraft v. TTiompson, 35 Beav. 559; Sparling v. Clarson, 17 W. R. 518, and cases there cited; Kino v. Rudkin, 6 Ch. D. 160; Nat. Prov., Si'c. Co. V. Prudential, §-c. Co., 26 W. R. 26, 6 Ch. D. 757. When the Court has not been satisfied on the evidence, whether the proposed building will or not materially obstruct Pit's light, the erection of a temporary sci-een or scaffolding to the height of the proposed wall has been directed, and a surveyor appointed to report on the effect : Leech v. Schoeder, 9 Ch. 463. Personal inspection by the Judge of the property alleged to be injured is not, it seems, advisable: see Jackson v. D. Newcastle, 3 D. J. & S. 275; Leech v. Schweder, 22 W. R. 292. ni. MINERAL EIGHTS. 1. Injunction as to Coal Workings — Account of Coals gotten — Support. " Let a pei-petual injunction be awarded to restrain Deft W., his servants &c., from working or getting any coals or other materials in the mines under the close of land called &c., or other lands of the Pit, situate at &c., or from carrying on any working under the same lands, and from permitting the ways, passages, and aper- tures which have been made or opened in or to the said mines to remain open, or from permitting the surface of the land to remain insuflScientl3' supported ; And Let an account be taken of all coals and other materials worked or gotten or rendered unworkable under the same lands by the Deft "W., and of the value of such coals and other material, without any allowance for the cost of work- ing or getting the same." — Deft W. to pay Pit's costs of suit. — Adjourn &c. For decree restraining the working of minerals, to the support of which Pits were entitled under their contracts, in such a manner as to occasion damage to them, see N. E. Ry. Co. v. Grassland, 2 J. & H. 565, 4 D. F. & J. 550. For injunction to stay the owner of a bed of china clay from getting it so as to destroy or seriously injure the surface, see Hext v. Gill, 7 Ch. 699. For inquiry with a view to an injunction against a lessee of mines dis- turbing supports of lessor's house: Dugdale v. Robertson, 3 K. & J. 695. 2. Injunction as to Mines — Support — Inspection — Account. (Br consent) Let an injunction &c. from digging or getting any coals, culm, or other minerals or soil from under the E, estate, in &c. mentioned, or in any manner digging under the same, and also 94 INJUNCTIONS. [part II. from destro3'ing or taking away the pillars or supports which have been left or erected in the workings under &c. , or any part thereof, and also from using such parts of the communications called- the &c., as lie under the said &c., or any part thereof, or such parts of any other communications from &c. until &e. ; And Let the Pits, or a proper person to be appointed by them for that purpose, be at liberty, on reasonable notice being given, to inspect the workings of the Defts under the said' E. estate ; And Let the following &c.; — 1, An account of the several quantities of coal, culm, and other minerals, worked, raised, or procured by the Defts or any of them, or by any other person or persons by their or any of their order, or for their or anj' of their use, out of or from the said E. estate or any part thereof; 2, An inquiry how, and in what manner, and at what time or times,' and for what sum or sums of money, the same* and every part thereof, have or has been sold, applied, or disposed of. — Adjourn &c. For an interlocutory order for Pit to inspect at all reasonable times, upon giving one day's notice, so far as might be necessary to ascertain whether Deft had worked into Pit's land, and how far and to what extent, with liberty to measure, dial, and make all such plans or sm'veys as might be necessary for that purpose, and to use the Deft's machinery for de- scending and ascending, doing no injury to the Deft's works, and paying the Deft any expenses he may incur: Bennilt v. Whitehouse, 28 Beav. 119. For an order in chambers under the C. L. P. Act, 1854, s. 58, that Pit be at liberty by his witnesses &o., to inspect the Deft's mine ; that for this purpose the Defts give all reasonable facilities for access to and in the mine, and for ventilation during the process ; and that Pit be at liberty, so far as is necessary for the purpose of inspection, to make a drift way as described &c. Before commencing the inspection. Pit to give security, to the satisfaction of the master, to the extent of £500, or deposit that sum with the master to abide any order as to indemnifying Defts for any loss or damage which might be sustained in consequence of the inspec- tion: Bennett y. Griffiths, 30 L. J. Q. B. 98. 3. Account of Coal obtained hy Defts from within PWs Barrier, inadvertently or under Belief of Title — Damages — Way- leaves. Vakt the decree — " And his Lordship being of opinion that as between the parties hereto the indenture dated &c. in the pleadings mentioned, could not in equity be disputed as a valid demise of the mines in the pleadings mentioned for twenty-one j'ears, from the 26th March, 1840, and the Defts by their counsel submitting to account as assignees of the said lease, and as the parties in posses- sion of the mines and premises &c., since the expiration of the CH. V. S. IV.] MINERAL RIGHTS. 95 said lease as this Court shall direct, Let the following &c. , 1 . An account of rents and roj-alties payable under the lease of the 2nd May, 1840, with a direction as to the mode in which the rent was to be calculated ; 2. An account of aU coal and other minerals got from the said mines by the Defts, or either of them, or by the S. Co. (assignors of the lease), since the 25th March, 1861, and of the value of such last-mentioned coal and other minerals ; And de-i clare that on taking such last-mentioned account the Defts are to be charged with the fair value of such coal and other minerals at the same rate as if the said mines had been, purchased from the Pits by the Defts at the fair market value of the district ; And, Let, &c. ; 3. An inquiry whether any and what damage has been occasioned to the C. estate beyond the removal of the coal 'and other minerals by the working of the said mines since the said 25th March, 1861, and what if anything is proper to be allowed to the Pits as compen- sation for such damage ; 4. An inquiry what since the said 25th March, 1861, ought to be paid by the Defts, or either of them, or the said S. Co. to the owner of the C. estate, as or by way of waj-- leave in respect of the passing of the coal and other minerals not the produce of the said mines, and of materials, through and , by means of the mines and workings in and under tlie said C. estate ; And Let the total amount due on taking the said accounts and mak- ing the said inquiries be ascertained ; And Let the same be paid by the Defts &c. to the Pits &c. within one month after the date of the chief clerk's certificate to be made in pursuance hereof." — So much of the Pits' (bill) as prayed damage, save as to damage done since the 25th March, 1861, to the estate and mines by working the mines, and by not leaving barriers, and not sinking proper shafts, dismissed — no costs up to the hearing. — Liberty to apply in Chambers as to the costs of the accounts and inquiries. — Jegon vi Vivian, 6 Ch. 742. 4. Inquiry as to Value of Coals wrongfully got, and Damage hy hreahing through Pit's Boundary. 1. " Let an inquiry be made what was the market value at the pit's mouth of all the coal worked and gotten by the Deft from the Pit's mine at in the Pit's (biH) mentioned, and the aggregate amount thereof, after making to the Defts all just allowances for the costs and expenses incurred by them in bringing such coal to the pit's mouth, and all other just allowances, but not including the cost of severing such coal ; And Let the Defts within (one month) from the date of the chief clerk's certificate of the result of such inquiry pay such aggregate amount as aforesaid to the; Pits \ 96 INJUNCTIONS. [part II. 2. And Let an inquiry be made whether the Pits have sustained any, and if any what, damage by reason of the Defts having broken through the boundary between their mine at in the pleadings mentioned, and the said mine of ; And declare that the Defts are liable to pay to the Pits the amount if any that shall be certified to be payable in respect of such damage." — Defts to pay Pits' costs up to and including the hearing. — Adjourn &c., and subsequent costs. — Liberty to apply. — Llynvi Goal Go. v. JBrogden, 11 Eq. 188. For the like inquiry as to value of minerals removed and damage by such working, see Hunt v. Peake, Johns. 713. For inquiry as to darnage sustained by Pit in respect of his coal which, though not worked by Deft, had been rendered valueless by reason of the Deft's working other coal of the Pit: Williams v. Raggett, Fry, J., 37 L T. N. S. 96. NOTES. Prima fade there is a natural right of support for the soil as an incident of property and not in the nature of an easement: Bonomi v. Backhouse, E. B. & E. 655, 9 H. L. C. 503; and minerals cannot be worked by the owner of the subjacent or adjacent soil (that is, " the owner of that portion of land the existence of which in its natural state is necessary for the sup- port of my land: " Birmingham v. Allen, 6 Ch. D. 284, 289, 25 W. K. 810) so as to cause my land to fall in: Humphries v. Brogden, 12 Q. B. 739; Hunt V. Peake, Johns. 705; Dugdale v. Robertson, 3 K. & J. 695; Bell v. Wilson, 1 Ch. 303; Hext v. GUI, 7 Ch. 699; and see Rowbotham v. Wilson, 8 H. L. C. 348; Gale, 358, &c. As to how far this right may be modified or lost by my having erected buildings on my land so as to render additional support necessary, see Wyatt V. Harrison, 3 B. & Ad. 871 ; Hunt v. Peake, Johns. 705. Lateral support for buildings may be acquired by twenty years' enjoy- ment: Bonomi v. Backhouse, 9 H. L. C. 503; and see Rogers v. Taylor, 2 H. & N. 828. A right to lateral support from adjoining land may be acquired by twenty years' uninterrupted enjoyment for a building proved to have been newly built, or altered so as to increase the lateral pressure, at the begin- ning of that time ; and it is so acquired if the enjoyment is peaceable and without deception or concealment, and so open that it must be known that some support is being enjoyed by the building. Such a right of support was held by the Lord Chancellor (Lord Selbome) to be an easement within the meaning of the Prescription Act, and by the other Judges as a case to which the old law of prescription would apply, and that, in the absence of anything to show the exact origin of the thing, user for the time would be sufficient to give the easement, provided only that the easement was one of such a nature as that the party on whom the burden was to fall was bound to take notice of it : Dalton v. Angus, 6 App. Gas. 740. CH. T. S. IV.J MINERAL RIGHTS. 97 The facts in this celebrated case were these: Two dwelling-houses ad- joined, built independently, but each on the extremity of its owner's soil and having lateral support from the soil on which the other rested. This having continued for much more than twenty years, one of the houses (the Pits') was in 1849 converted into a coach factory, the internal walls being removed and girders inserted into a stack of brickwork in such a way as to throw much more lateral pressure than before upon the soil under the adjoining house. The conversion was made openly, and without deception, or concealment. More than twenty years after the conversion the owners of the adjoining house employed a contractor to pull down their house and excavate, the contractor being bound to shore up ad- joining buildings and make good all damage. The contractor employed ■ a sub-contractor upon similar terms. The house was pulled down, and the soil under it excavated to a depth of several feet, and the Pits' stack being deprived of the lateral support of the adjacent soil sank and fell, bringing down with it most of the factory. The great difficulty in this case, as far as can be gathered from the very elaborate and full judgments given both in the Court below and in the House of Lords, seems to have been whether the easement of support claimed could exist in the absence of express evidence that the person upon whom the onus was to be inflicted would know that his building was being subjected to such a burden. Ultimately the House of Lords held that from the nature of things, and the facts of the case, it was apparent that the easement was acquired in such a way that the party to bear the burden of it was bound to know of it; and that the Pits could maintain an action against the owners of the adjoining house and the contractor for the injury. This case is one of the best considered to be found in the books. To support an action for infringement of this right of support, there must have been appreciable damage: Smith v. Thackerah, L. R. 1 C. P. 564. A grant of minerals and also the reservation of minerals in the grant of the surface will imply such a working as not to affect the right to sup- port which is incident to the occupation of the surface: Rowbotham v . Wilson, 8 H. L. C. 360; Caledonian Railway Co. v. Sprot, 2 Macq. 449; N. E. Ry. Co. V. Crosland, 2 J. & H. 565, 4 D. F. & J. 550; and there is an implied obligation on the vendors not to work minerals in their ad- joining land so as to cause a subsidence in the land sold: Siddons v. Short, Ire. Co., 37 L. T. N. S. 230, 2 C. P. D. 572. But this prima facie right may be affected by express contract, or by necessary implication, or by statutory enactment. Per Lord Blackburn in Davis v. Treharne, 6 App. Cas. 460. (a) In a grant of land for building purposes the reservation to the grantor of the right to take and work minerals, making compensation to the grantee for all damage to the buildings thereby occasioned, gives the grantor, subject to his obligation to make compensation, the right of working, even to the injury of the buildings: Aspden v. Seddon, 10 Ch. 394. And that the terms of the grant of the surface may be such as to con- tract the grantee out of his right to support, or even to compensation for 7 &8 INJUNCTIONS. [PAET 11. loss of support, see Andrew v. Buchanan, L. R. 2 H. L. Sc. 286; Wil- liams V. Bagnall, 12 Jur. N. S. 987 ; Rowbotham v. Wilson, 6 E. & B. 593, 8 E. & B. 123, 8 H. L. C. 348. But the reservation of minerals in a grant of the surface must be so framed as to show the clear intention to get the minerals without regard to the surface (e. g. by quarrying) : Hext v. Crill, 7 Ch. 699. {b) The terms of the instrument under which the minerals are worked may be such as to give by manifest intention an unrestricted power of working the mines without regard to the safety of any of the surface not specially protected: see Taylor v. Shafto, Shafto v. Johnson, 8 B. & S. 228, 252, n.; Eadon v. Jeffcock, L. R. 7 Ex. 379; Smith v. Darby, L. R. 7 Q. B. 716. The law is established that the titles may show that the surface is held on the terms that the owner of the minerals is at liberty to remove the whole of them without leaving any support to the surface, either, accord- ing as may be stipulated, without making any compensation for the dam- age thus occasioned, or having the right to remove the support, but being bound to make compensation for the damage done by exercising that right. It is, in every case, a question of construction of the deeds, to ascertain whether the intention so to contract appears on the titles. Dixon V. White, 8 App. Cas. 838, citing the rule established in Rowbotham v. Wilson, tibi supra, and in ATidrew v. Buchanan, ubi supra, and approv- ing but distinguishing Aspden v. Seddon, ubi supra. INSPECTION. Upon a prima facie case of mineral trespass or encroachment by the Deft, and where the fact of trespass (which is denied) can only be ascer- tained by inspection, and no injury will result to the Deft therefrom, an interlocutory order will be made for inspection of his mine: BennittY. Whitehouse, 28 Beav. 119 ; and see Whaley v. Brancker, 12 W. R. 570, 595. The order wiU, when necessary, extend to. the removal of obstructions to the inspection : E. Lonsdale v. Curwen, Walker v. Fletcher, S BlighO. S. 168, n., 172, n. ; A. G. v. Chambers, 12 Beav. 159; and see Ennor v. Bar- well, 1 D. F. & J. 529, where, in a suit to restrain the diversion of water, so much of an order for inspection on motion before the hearing as gave Pit leave to break up soil by making trenches, remove earth and obstruc- tions, and cut down an embankment, was struck out on appeal. ACCOXJNT AND COMPENSATION. In assessing compensation for mineral trespass or wrongful working, a different principle is applied when the minerals have been taken inadver- tently, and when taken fraudulently, or in wilful wrong — (a) If taken by Deft inadvertently or under a bon& fide belief of title, the Pit is entitled to be paid the value of the coal or minerals, as if the field had been purchased by Deft at the fair market value of the district; the expenses of winning and getting being allowed to Deft: Jegon v. Vivian, 6 Ch. 742, sup. Form 3; Hilton v. Woods, 4 Eq. 432; and see West CH. V. S. IV.j EIGHT OP WAT. 99 V. Morewood, 3 Q. B. 440, a. \ Morgan v. Powell, 3 Q. B. 278; Ashton v. Stock, 6 Ch. D. 719, 23 W. R. 863. So also in Powell v. Aiken, 4 K. & J. 343, an inquiry was directed to ascertain " the market price or value, or as near thereto as might be, of all coal, &c. (improperly taken), at the pit's mouth, all just allowances being made to the parties chargeable in respect of their charges and ex- penses, on account of such coal;" and for the mode of calculating the profits and expense: see L. Rokeby v. Elliot, 9 Ch. D. 685, 38 L. T. N. S. 846. (6) If taken fraudulently or wilfully, after full notice of Pit's title, damages will be assessed against the Deft on a stricter principle; and he will be allowed the costs of bringing the coal to the pit's mouth only, not of severing or getting: Phillips v. Homfray, 6 Ch. 770; Llynvi Co. v. Brogden, 11 Eq. 188, supt Form 4; Morgan v. Powell, 3 Q. B. 278; and see Martin v. Porter, 5 M. & W. 351. Unless the coal has been surreptitiously and intentionally taken, the account wiU be limited to six years before bill filed: Dean v. Thwaite, 21 Beav. 621; and see Hood v. Easton, 2 Jur. N. S. 917, 2 Giff. 692. The inquiry may be extended to damage sustained by Pit in respect of coal which, though not worked, has been injured by the Def t's working of Pit's coal: Williams v. Raggett, 37 L. T. N. S. 96. IV. — EIGHT OF WAT. 1. Interim Order — restraining Use of Private Road. Let the Defts &c. , their agents &c. be restrained until after the day of , , or further order, from using or permitting to be used any part of the lane at &c., the soil of which, it is alleged, belongs to the Pits as a carriage-waj' for the passage of carts, carriages, or other vehicles, either going to or from the land marked B. in the plan annexed to the said (bill) or for any purpose whatsoever. 2. Perpetual Injunction against obstructing Road, and permit- ting Obstructions to remain. — Damages. "Let a perpetual injunction be awarded to restrain the Defts, their servants &c., from doing any act whereby the Pit may be hin- dered or obstructed in the free use of the Eock Road in the (bill) mentioned, from Rock House therein mentioned to the other termi- nus thereof, on foot or by horses or carriages ; and from continuing or allowing to remain any of the obstructions to the said road, which have been placed there by the Defts, their servants &c., and whereby the Pit and other persons going to or from the said Rock House and premises, on foot or by horses or carriages, are pre- 100 INJUNCTIONS. [part II. vented or hindered from using the said road, and also from inter- fering with the Pit, his servants &c., in the removal of any of the obstructions which have been placed on the said road preventing the user thereof by the Pit as aforesaid ; '' — Defts to pay to the Pit costs up to this time, to be taxed. — " And Let an inquiry be made what damages, if any, the Pit has sustained in consequence of the obstruction of the said Rock Road by the Defts as in the (bill) mentioned ; And Let what if anything shall be ascertained to be due to the Pit in respect of such damage be within (one) month after the date of the chief clerk's certificate paid by the Defts &c. to the Pit D." — Liberty to apply in Chambers respecting the sub- sequent costs and otherwise. For an injunction against blocking up the access by a footpath to a station of the Pit company, see L. §• N. W. Ry- v. Lane. §■ York. Ry., 4 Eq. 174. Against obstructing the free use of roads and ways through Deft's estate by a fence erected by him at the extremity of his land: Phillips v. Treeby, 8 Jur. N. S. 711, 3 Giff. 632. 3. Establishing Right of Way, and for Removal of Obstructions. " Declakb that there is a pubUc right of way through and over the whole of St. M Alley in the information mentioned up to the eastern end thereof; And Let an injunction be awarded to re- strain the Defts, their surveyors &e., from erecting or proceeding with the fence or baracade in the information mentioned, and other- wise obstructing the free passage of persons passing over an,d along St. M Alley aforesaid or any part thereof ; And Let the Defts remove all such girders, fences, and other obstructions as they shall have already erected or made in the said alley." — Defts to pay the informant's costs of suit, to be taxed. . For declaration that Pit and Defts have an equal and reciprocal right to the use of the roadway, and that the persons interested therein have not, nor have any of them, any preferential right of way, and that the necessity or urgency of their particular trade or business does not give them any right to occupy such roadway by any stationary obstruction when the passage is required by any other person having the right of any such road- way, with consequent directions; and an injunction to restrain the Defts and any persons interested in the said roadway, their respective servants, &c., from placing or leaving any stationary obstruction in the said road- way, except at such time as the use thereof is not required for any other of the persons interested therein, and from making use of the said roadway in any manner inconsistent with the meaning of the said declarations, see Thorpe v. Brumfitt, 8 Ch. 650, 654. For the like declaration of the concurrent right of Pit and other owners CH, V. S. IV.] RIGHT OP WAT. 101 (of whom Deft was one) of adjoining houses to use a private road (forming a cul-de-sac) for the purposes of access to their property, and that Deft was not entitled to place any stationary obstruction when the road was required by the other persons so entitled, and was bound, when required, to remove such obstruction, see Shoesmith v. Byerley, 21 W. R. 669; and see Cannon v. Villars, 8 Ch. D. 415. For perpetual injunction to restrain stopping up an implied way of necessity, see Davies v. Sear, 7 Eq. 427. 4. Railway Company restrained from obstructing a Right of Way over a Level Crossing. Declare that the Pits are entitled for themselves and their ten- ants and the under-lessees and occupiers of the messuages, lands, and hereditaments so purchased by them as in the (bill) mentioned, and their officers and servants &c., to the free and uninterrupted use and enjoyment of the level crossings in the (bill) mentioned, and each of them, but so as not to interfere with the traffic on the railway ; And Let a perpetual injunction be awarded to restrain the Defts the company, their officers, servants &c., from permitting any train, engine, carriage, or truck, to stand across the level crossings or either of them, and from doing or permitting any other act so as to obstruct or impede the Pits, or their tenants or lessees, or the occupiers of the lands purchased by the Pits or any of them, from or in the free and uninterrupted use and enjoj'ment of the said level crossings or either of them. But this injunction is not to restrain the company from the use of the railway for the reasonable and proper working of their traffic. — United Land Co. V. G. E. By. Co., 10 Ch. 586. NOTES. RIGHT OF WAT. In claiming a right of way by user, the purposes for which the way may be used are limited by the previous state of user. Thus, a right of way for farming purposes across a common cannot be enlarged into a right of way for carting building materials when the condition of the dominant tenement has been altered by laying out as building land that which was a farm: Wimbledon Conservators v. Dixon, 1 Ch. D. 362; and see Allan v. Gomme, 11 A. & E. 759; Arkroyd v. Smith, 10 C. B. 164; Cowling v. Higginson, 4 M. & W. 245; Williams v. James, L. R. 2 C. P. .577; Bradburn v. Morris, 3 Ch. D. 812. For the general principle that the owner of the dominant tenement cannot extend his enjoyment of the easement so as to impose an additional servitude, see Gale on Easements, 557, &c. And that the use of a particular easement will in general be restricted 102 INJUNCTIONS. [part II. to a reasonable use for the purpose of the land as it was when the grant was made : Wood v. Saunders, 10 Ch. 582. Where the right of way or easement is vested by grant, the question whether the grant is for all purposes, or limited to certain purposes only, is one of construction: United Land Co. v. O. E. Ry. Co., 10 Ch. 586; Ardley v. St. Pancras Guardians, 39 L. J. Ch. 871; Gale, 558. In the case of a right of way an enlarged construction will be given to the grant: Selbyv. C. P. Gas Co., SOBeav. 606; Henningv. Burnet, 8 Ex. 194; and see Watts v. Kelson, 6 Ch. 166; Cousens v. Rose, 12 Eq. 366; Kay V. Oxley, L. R. 10 Q. B. 360; Gale, 560; Shelford R. P., 8. 78, &o. And accordingly the use of level crossings constructed by a railway com- pany under the obligation imposed by their Act of making communica- tions between severed portions of the land, will not be restricted to the purposes for which the land was used when the railway was made: United Land Co. v. G. E. Ry. Co., 10 Ch. 586. But a right of way over a passage granted by a lease (containing a covenant by lessee to do nothing to the annoyance, &c., of lessor or his adjoining tenants or occupiers) will not be allowed to be used so as to cause a nuisance, e. g. by making it a noisy access to a noisy entertain- ment. Collins V. Slade, 23 W. R. 199. The grantee of a right of way which has been obstructed by the graritor is entitled to deviate over the grantor's land, without enforcing the removal of the obstruction, and to protection by injunction: Selby y. Nettle/old, 9 Ch. Ill, 115. The dedication to the public of a right of way across a field may be limited by the right of the owner of the soil to plough it up periodically in due course of farming; and any interference on behalf of the public with this right in the owner constitutes a trespass : Arnold v. Blaker, L. R. 6 Q. B. 433; Mercer v. Woodgate, L. R. 5 Q. B. 26. Dedication of a right of way from continuous user can only be presumed in favor of the public generally, not of the inhabitants of a particular parish: Bermondsey Vestry y. Brown, 1 Eq. 204. Although a tenant cannot, as against his landlord, acquire an easement (^Russell V. Harford, 2 Eq. 507 ; Gayford v. Moffatt, 4 Ch. 133, 135), the tenant of "land-locked" land will be entitled to a way of necessity for the purposes of his tenancy over an outer close belonging to his landlord: Gayford v. Moffatt, sup. ; and see Daniel v. Anderson, 8 Jur. N. S. 328; Gaie, 146, &c. That such a way of necessity will pass where the owner of two closes, one of which can only be reached by the other, devises them to two dif- ferent persons, see Pearson v. Spencer, 3 B. & S. 761. As to an implied grant of a right of way, see Espley v. Wilkes, L. R. 7 Ex. 298. An injunction to restrain the obstruction of a public way may be ob- tained in respect of the particular private injury to the Pit without making the Attorney General a party: Cook v. Mayor of Bath, 6 Eq. 177; Spencer Y. L. §■ B. Ry. Co., 8 Sim. 193. The vestry of a parish cannot maintain a suit to restrain the infringe- ment of a public right of way, except as relators on information by the Attorney General: Bermondsey Vestry v. Brown, 1 Eq. 204. CH. V. S. IV.] WATER RIGHTS. 103 Surveyors of highways will not be restrained by injunction from remov- ing that which has been decided to be an obstruction to a public highway : Bagshaw v. Buxton Board, 1 Ch. D. 220; and see Turner v. Ringwood Board, 9 Eq. 418. V. WATER EIGHTS. 1. Injunction against Diverting or Diminishing Flow of Water. Let an injunction be awarded to restrain the Deft &c. from di- verting the water in the ponds or springs situated &c., so as to prevent the same from flowing into the river P. ; and from employ- ing any steam-engines* pumps, or any other means of using the water in the said ponds or springs so as to diminish the quantity of the said water which flows into the said river ; And also to re- strain the Deft from diverting the course of the water which flows from surface springs on the south side &c., so as to prevent the same from flowing in its natural course towards and into the said river. (Parties agreeing that the legal right should be decided by the Court), Declare that the Pit is not entitled to the use of the water in the reservoir, nor to the use of the water in the pond called P. pond. — Minor v. Barwell, V.-C. S., 12 July, 1860. Leave was afterwards given to bring an action, S. C, 1 D. F. & J. 530. 2. Mandatory Injunction — Flow of Water — Inquiry as to Damages — Operation of Injunction suspended. " Declare that the Pits and the Defts B. &e. are entitled, ac- cording to their respective interests in the messuage called &c., now in the Pit's occupation, and situate &c., to the free and unin- terrupted enjoyment of the supply of water to the said messuage for the use of the occupiers thereof, from the Deft H.'s land, called &c., and all ancient wells, springs, troughs, and drains therein as such supply of water has heretofore, and up to the interruption thereof by the Deft H., been enjoyed as in the (bill) mentioned ; And Let a perpetual injunction be awarded to restrain the said Deft H., his servants &c., from interrupting or interfering with the said supply of water as so heretofore enjoyed, and from permitting the same to continue unrestored, and from permitting to continue on his said land any drains or works whereby the same is or may be, wholly or partially, diverted or interfered with ; and from in anj' wise infringing, or permitting to continue infringed, the Pit's said right to the said supply ; But the operation of the said injunction is hereby suspended for the period of three months from this date ; 104 INJUNCTIONS. [PAET II. — And Let an inquiry be made what sum or sums the said Deft H. ought to pay, and to whom, by way of compensation in damages for any temporary or permanent injury occasioned, or to be occa- sioned, to the Pits and the other persons interested in the said messuage, according to their respective interests therein by his in- terruption of, or interference with, the said supply of water there- to ; — And Let the said Deft H. pay any sum or sums so certified to the Pits {names) and such other persons (if any) as may be named in the chief clerk's certificate as entitled to the same." — Deft H. to pay all costs of the suit. For the like decree against diverting a watercourse, with inquiry as to damages, see Ivimey v. Slacker, 1 Ch. 396. — to restrain a local board from drawing ofE, by their drainage works, subterranean waters, and thus diverting water from a running surface-stream, see G. Junction Canal v. Shugar, 6 Ch. 483. For injunction restraining the grantees of a watercourse from altering the level of the watercourse so as to encroach upon the grantor's land, and from causing any diminution in the overflow of water at the weirs, with order on them to restore it to its original state, see Taylor v. St. Helen's Corporation, 6 Ch. D. 26. 3. Declaration of Water Mights of Canal Proprietors, and Injunction to restrain Interference therewith. Declare that PltSj as the owners of the tenement called W. Mill, are entitled to the W. stream and to the waters flowing in a defined and natural channel into. and forming part of the same as such stream and waters have been accustomed (before the inter- ference therewith &c.) to flow down to the said tenement, subject to the ordinary and reasonable use of the said stream and waters by the riparian owners higher up on the said stream ; And Declare that the diversion by Defts of the said stream and waters into their reservoir &c, , for the purpose of supplying water to the town of S. , is not within such ordinary or reasonable use ; And Declare that the Pits,* under and by virtue of the powers contained in the Acts of Par- liament in the pleadings mentioned, are entitled to use the said stream and waters as the same have been accustomed (before such inter- ference as aforesaid) to flow down to and into their canal, so far as the said stream and waters are required for the supply and naviga- tion of their canal, and subject to such ordinary and reasonable use bj' upper riparian owners as hereinbefore mentioned ; And Let an injunction be awarded to restrain Defts &c., their servants &c., from diverting into their reservoir or otherwise the said stream and waters, so as to interfere with the supply of water required for the navigation of the said canal. — Order of L. JJ., subject to CH. V. S. IV.] WATER BIGHTS. 105 the above-mentioued variations, affirmed ; Appellants to pay to respondents their costs of appeal. — Cause remitted back to (Court of Chancery) to do therein as shall be just and consistent with this variation and judgment. — Wilts tfc Berks Gwnal Co. v. Swin- don Waterworks Go., L. R. 7 H. L. 697, 715, 9 Ch. 451. 4. Obstruction of Navigable Stream restrained. Let an injunction be awarded to restrain the Deft, his servants &c., from erecting or constructing, or causing or allowing to re- • main, any platform, piles, or other erections or works in or above the river S. beyond the line of his quay, and from otherwise ob- structing the navigation of the river [or the public use of his quaj- for the purpose of mooring vessels along the same]. — A. G. v. Terry, as varied on appeal by omitting the words in brackets, 9 Ch. 423. 5. Obstruction of Wharfinger's Right of Access to the Thames restrained. Let a perpetual injunction be awarded to restrain the Defts, the wardens &c., of the Fishmongers of the city of London, their ser- vants, contractors, and agents, from making or putting up any em- bankment facing their property on the south side, and facing the Pit's property on the west side thereof, or constructing any other works or doing any other thing whereby the Pit's right of access to the river Thames on the west side of his wharf in the (bill) men- tioned, or the privilege heretofore enjoyed by the Pit of laying and mooring craft, and loading and unloading, embarking and disem- barking, goods on the west side of his said wharf, directly from the river, may be defeated, destroyed, or prejudiced ; and also from continuing any works or creating or continuing anj' obstructions so as to interfere with the Pit's right of access to the river, and privi- lege as aforesaid, and to restrain the Defts the Conservators of the river Thames from selling any part of the shore or granting or con- tinuing any authority or license to the other Defts, whereby the Defts the Fishmongers' Co., their servants, contractors, or agents, maj' be authorized or empowered to make or put up anj' embank- ment on the south side of their premises, and from creating or con- tinuing any obstructions whereby the Pit may be stayed, impeded, or prejudiced in the right or privilege heretofore enjoyed by him of free access to and from his said wharf to and from the river on the west side of his wharf, and of mooring or laying craft on the river, or loading or unloading goods directly into or from his said wharf into or from the river. — Directions as to costs. — Lyon v. 106 INJUNCTIONS, [PAET II. Fishmongers^ Co., V.-C. M., 3 May, 1875. Reversed by C. A., 30 July, 1875, 10 Ch, 679 ; but affirmed, H. L. 1 App. Cas. 662. NOTES. The diversion or obstruction of the flow of water in a stream ■will be restrained by injunction at the suit of the riparian owner thereby affected : Robinson v. L. Byron, 1 Bro. C. C. 588; Elwell v. Crowther, 31 Beav. 163. And the riparian owner's right is not limited by the actual damage sus- tained: Biekett v. Morris, L. K. 1 H. L. So. 47; E. Norbury v. KUchin, 15 L. T. N. S. 501. As to the right of a riparian owner to the ordinaiy use of water flowing past his land, and also, provided he does not thereby interfere with the rights of other proprietors above and below, to the extraordinary use, see Miner v. Gilmour, 12 Moo. P. C. 156. The rights of riparian owners on a tidal navigable river and on an in- land stream do not differ; and the right of a wharfinger to bring an action in respect of an obstruction which deprives him of, or renders less easy, access to his wharf, is not limited by the extent to which his interest in the public right of navigation has been affected, but extends to in- terference with his private right as a riparian owner, exercised in a reason- able manner and for a reasonable purpose: Original Hartlepool Co. v. Oibb, 5 Ch. D. 713; Lyon v. Fishmongers' Co., H. L., W. N. (76) 236, 1 App. Cas. 662 (reversing 10 Ch. 679), sup. Form 5; and see A. G. v. E. Lonsdale, 7 Eq. 377; Exeter Corporation v. E. Devon, 10 Eq. 234; A.G.v. Thames Conservators, 1 H. & M. 1; Kearnsv. Cordwainers' Co., 6 C. B. N. S. 388; Reg. v. G. N. Ry. Co., 9 Q. B. 315. As establishing the right of a riparian owner on the Thames to com- pensation for the loss of his water frontage by the construction of the Embankment, see D. Buccleueh v. Metropolitan Board of Works, L. R. 5 H. L. 418; Metropolitan Board of Works v. M'Carthy, L. R. 7H. L. 243. For the construction of the grant of a watercourse as the grant of the channel through which the water flows, with injunction consequent thereon, see Taylor v. St. Helenas Corporation, 6 Ch. D. 265. ESCAPE OF WATER. On the principle that a man who, for his own purposes, brings on his land things which have a tendency to escape and cause mischief (e. g. water) must take care that they do not get on to his neighbor's land, he is prima facie answerable for all damage which is the natural consequence of its escape: Fletcher v. Rylands, 3 H. & C. 774, L. R. 1 Ex. 265, 3 H. L. 330; Crompton v. Lea, 19 Eq. 128; Baird v. Williamson, 15 C. B. N. S. 376; and see Smithy. Fletcher, L. R. 9 Ex. 64; Westminster Brymbo Co. V. Clayton, 36 L. J. Ch. 476. But when the escape of water has been caused by vis major, or the act of God, the Deft will not be liable: Nichols v. Marsland, L. R. 10 Ex. 255, 2 Ex. D. 1 ; Box v. Jvhb, 4 Ex. D. 76. And it seems that a distinction will be taken between water trespassing by natural overflow and by the diversion of the watercourse: Smith v. Fletcher, L. R. 9 Ex. 64; Smith v. Kenrick, 7 C. B. 515. CH. V. S. V.J NUISANCE. 107 Section V. — Nuisance. I. PBTVATE NUISANCE. 1. Nuisance from Burning Bricks restrained. Let a perpetual injunction be awarded to restrain the Defts S. &c., their servants &c., from burning, or causing to be burnt, any bricks on the Deffcs' plot of land, in the (bill) mentioned, so as to occasion a nuisance to the Pit, as the owner or occupier of the mes- suage or dwelling-house and garden in the (biU) mentioned to belong to, and to be occupied by, the Pit. — Defts S. to pay Pit's costs of suit, to be taxed. — Liberty to apply. (Language dictated by the Court after reference to the cases.) The leading case of Walter v. Selfe, 4 D. G. & S. 315, restraining brick- burning so as to occasion "damage or annoyance " to Pit, or " injury or damage" to the house and premises, shrubberies and plantations, is not to be taken as having settled the general form of order in nuisance cases, and the words " nuisance or injury," or "nuisance," see Ball v. Rdy, 21 W. R. 282, inf. Form 2, when used in the prayer for relief, will be adopted in preference: Per Selborne, C, 21 W. R. 449; and see Qoose v. Bedford, 21 W. K. 449, inf. Form 5, p. 109. 2. Nuisance — Offensive Occupation — Inquiry as to Damages. Reverse decree. — And Let an injunction be awarded to restrain the Deft R. , his servants &c. , from keeping or suffering any horse to be on the ground-floor of No. 19 G Street, in the (bill) men- tioned, so as to occasion any nuisance to the Pit, his family and lodgers, residing at No. 18 G Street aforesaid. — Inquiry what damages have been sustained by reason of the user by the Deft of the said building No. 19 G Street, so as to occasion a nuisance to the Pit, his family and lodgers, as aforesaid ; And Let the Deft R., within one month after the date of the certificate of the result of the said inquiry, pay to the Pit B. what shall be certified to be the amount of such damages, and his costs of this suit, to be taxed &c. — Liberty to apply. — Ball v. Bay, 8 Ch. 467. For the like order to restrain nuisance from the business of a veteri- nary surgeon, carried on in the ground-floor of a house in Old Bond Street: Gullick V. Tremlett, 20 W. R. 358. 108 INJUNCTIONS. [PAET II. 3. Appointment of Special Referee to Inspect and Report as to Nuisance from Noise and Drainage. Let it be referred to E., of &c. , as special referee, to sur- vey and inspect the Pit's and Deft's premises, and the premises adjoining thereto respectively, and report whether or not the Pit's premises are affected by noise arising or coming from the Deft's stables, as ordinarily used by the Deft ; and if so, in what manner and to what extent and how the same is caused or arises. And whether or not the Pit's premises are, or are likely to be, affected b}' drainage coming from the Deft's stables as at present used, and if so, to what extent and in what manner and how the same is caused or arises. And in making such inquiries regard is to be had to the quality and nature of the construction, and the present state and position of the Pit's and Deft's premises, and the nature and composition of their foundation, and the ground on which they stand respectively, and to the surrounding levels and adjoining premises. — Liberty to the referee to direct all reasonable works, and to refer to the models, plans, and sections, and to the plead- ings, but not so as to bind either party by way of admissions. — And for the purpose of the inquiries the referee to be attended by one solicitor and one surveyor on each side, and to attend the Court on a day fixed, whereupon further order. 4. Decree after Report of Special Referee. "Let an injunction be awarded against the Deft S. to restrain the said Deft from keeping horses in his stables adjoining the mes- suage and premises &c. in the (bill) mentioned, so as to be a nui- sance (or annoyance) to the Pit M. or his family ; And declare that the Deft is liable for not preventing the damp and moisture from going through the flank wall of the Pits' said messuage and prem- ises &c. by reason of any made earth or other artificial construction abutting on the Deft's said stables, or by reason of any leakage in any soil-pipe or drain-pipe on the Deft's premises; And Let an injunction be awarded against the Deft S. to restrain the said Deft, his servants and agents, from permitting any stable or other drain- age from the stable or stableyard adjoining the Pits' said messuage and premises from percolating through the mass of made earth oi other artificial construction adjoining the wall of the Pits' said mes- suage, so as to occasion a nuisance to the Pits or the owners or occupiers of the said messuage and premises ; And at the request of the Pits, by their counsel at the bar. Let an inquiry be made what damages have been sustained by the Pits up to the (hearing of this CH. V. S. v.] NUISANCE. 109 cause) by reason of such percolation." — No costs of suit to either party, but the costs and charges of the special referee to be borne and paid by the Pits and Defts in moieties. — Costs of and occa- sioned bj"^ the inquiry reserved, Deft having, by his counsel, oflfered to pay £20 in respect of such damages. — Liberty to apply. — Broder v. SaiUard, 2 Ch. D. 692. 6. Nuisance from Steam-Hammer — Noise and Vibration Vary decree. — And Let an injunction be awarded to restrain the Deft B., his servants &c., from working the steam-hammer in the pleadings mentioned in such a way as to cause a nuisance or injury to the Pit and his premises in the pleadings mentioned ; And Let an inquiry be made what damage has been occasioned to the Pit and his said premises by the working of the said steam-hammer ; and refer it to the Taxing Master to tax the Pit his costs of this cause. — Direction for set-off of costs. — Deft to pay to Pit the balance certified to be due. — Libertj- to apply. — Goose v. Bed- ford, 21 W. E. 449. 6. Fireworks. Let a perpetual injunction be awarded to restrain the Deft R. his servants &c., from letting off, or causing or permitting to ascend, from the P Gardens in the (bill) mentioned, any rockets, shells, fire balloons, or other pyrotechnic devices or contrivances which, or the sparks from which, may, or may be liable to, fall on the B mill premises in the said (bill) mentioned, and endan- ger the timber stored thereon, or any part thereof. — Deft to pay costs of suit, but Taxing Master to look into the aflfldavits, and distinguish such parts as are of unnecessary length, and set off those costs. 7. Noisy Entertainment. Let an injunction be awarded to restrain Deft from using or per- mitting to be used the premises called &c. , or an}' part thereof, for the purpose of balloon ascents, fireworks, dancing, music, or other sports or entertainments, whereby a nuisance may be occasioned to the (annoyance and) injury of any of the inmates of the asylum in the (bill) mentioned. For similar orders, see Walker v. Brewster, 5 Eq. 25 (where the form of the order is discussed, and limited to any public exhibition, or other enter- tainment, whereby a nuisance may be occasioned to the annoyance and injury of the plaintiff) ; Inchbald v. Robinson, 4 Ch. 388 ; Bostock v. North Staffordshire Railway Co., 5 De G. & S. 590, 3 Sm. & G. 283. 110 INJUNCTIONS. [PAET H. 8. Dangerous Occupation • — Testing Fire-arms. Let a perpetual injunction be awarded to restrain the Defts from firing at a target in such a manner as to be a nuisance to the Pits or other owners, lessees, or occupiers of the lands and heredita- ments known as the S. estate, and from using in such manner as to be a nuisance any part of his premises as a place for proving or testing fire-arms therein, and from using fire-arms therein — in such manner as to be a nuisance. See also Banister -v. Bigge, 34 Beav. 287, for an injanction to restrain the use of a rifle-range for ball-practice, certified by the Secretary of State for War, until it should have been rendered free from danger to Pit, his family and workmen. For an injunction restraining blasting operations by a railway company for the construction of their liue " in such manner as thereby to cast upon Pit's house and buildings, or upon any part of his gardens or land there, or any of the said pieces of land in his occupation, any stones, pieces of rock, or other missiles or things: " Ar.noldv. Furness Railway Co., 22 W. R. 61.3. For an injunction restraining a smoke nuisance by a railway company, see Smith -v. Midland Ry. Co., 25 W. R. 861; nuisance from gas-works, see A. G. v. Gas Light, Ifc. Co., 7 Ch. D. 217. For an inquiry as to damages in respect of nuisance from noise, vibra- tion, and obstruction of light (completed before bill filed), where a man- datory injunction was refused, see V. Oort v. Clark, 16 W. R. 569. NOTES. The grounds of interference in the case of private nuisance are: — (a) Material injury or imminent and inevitable risk to property or health: see A. G. \. Nichol, 16 Ves. 338; Haines v. Taylor, 2 Ph.' 209, 10 Beav. 75; Broadbent v. Imperial Gas Co., 7 D. M. & G. 436, 7 H. L. C. 600 (Injury to the crops of a market-gardener) ; Beardmore v. Tredwell, 3 Giff. 683 (Injury to trees from brick-kilns) ; Tipping v. St. Helen's Smelt- ing Co., 1 Ch. 66 (Injury to land by the smoke of copper- works) ; St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642; Arnold v. Furness Rail- way Co., 22 W. R. 613 (Tipping rock or rubbish on Pit's land) ; Hepburn V. Lordan, 2 H. & M. 345 (Storing inflammable materials, jute, near Pit's house); Crowdery. Tinkler, 19 Ves. 617 (Powder-mill). The injury to property (e.g. to vegetation from smoke and vapors) must be actual, substantial, and visible — such as would entitle Pit to recover damages in an action ; and pontingent, prospective, or remote dam- age will not give the right to an injunction : Salvin v. Brancepeth Coal Co., 9 Ch. 705; Elmhirst v. Spencer, 2 Mac. & G. 45. On this principle when a riparian proprietor grants to a non-riparian proprietor certain rights which he has no right to grant, though at the same time they do not interfere substantially with the Pit's rights, in such a case no action can be maintained either for damages or for an injunction. Kensit v. Great Eastern Railway Co., 23 Ch. D. 566, 578. CH. V. S. V.J NUISANCE. Ill Mere speculative depreciation of property (e. g. by the erection of a national school in the immediate neighborhood) is not enough: Harrison V. Good, 11 Eq. 338. And see White r. Cohen, 1 Drew. 312; Biddulph v. St. George's Vestry, 3 D. J. «fe S. 493. Circumstances of locality ■will be taken into consideration ; and although a man by "coming to the nuisance" (of noxious vapors) in a manufac- turing district does not lose his right to relief, the injui-y to property must be such as sensibly to diminish its value; and a fortiori a much stronger case of personal discomfort will have to be shown by a Pit residing in a manufacturing district: St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 643; and see Salvin v. Brancepeth Co., 9 Ch. IQh. If there is no exceptional risk, and the injury is accidental or occasional only, and precautions hav^ been taken, there will be no injunction : Caoke V. For6.es, 5 Eq. 166. And generally, if the nuisance is not continuous, but temporary and occasional only, the Court will not interfere: Gaunt v. Fynney, 8 Ch. 8; Swaine v. Great Northern Railway Co., 4 D. J. & S. 211; A. G. v. Cam- hridge Gas Co., 4 Ch. 71; 4. G. v. Sheffield Gas Co., 3 D. M. & G. 304. (6) Material interference with the reasonable ordinary comfort of human existence: see Walter v. Selfe, 4 D. & S. 315; Crump v. Lambert, 3 Eq. 409- To give a right of action (including summary relief by injunction) in respect of nuisance, it is notfcecessary to prove direct injury to health; it is enough if the nuisance be such as to render the enjoyment of life and property uncomfortable : Rex v. White, 1 Burr. 333 ; Gaskell v. Bayley^ 30 L. T. N. S. 516; or if it (the nuisance) be offensive to the senses: Rex v. Neil, 2 Car. & P. 485. A Pit is entitled to the enjoyment of pure air by night as well as by day: Knight v Gardner, 19 L. T. N. S. 673. On this branch of the subject the following cases may be consulted: — Briek-buming. — Walter v. Selfe, 4 D. & S. 313; Pollock v. Lester, 11 Hare, 275; Luscombe v. Steer, 15 W. K. 1191; Roberts v. Clarke, 18 L. T. N. S. 49; Bamford v. Turrdey, 3 B. & S. 62 (overruling Hole v. Barlow, 4 C. B. N. S. 334, and deciding that brick-burning by which nuisance was occasioned was not a reasonable use by Deft of his laud). Cement works. — Umfreville v. Johnson, 10 Ch. 580. Chemical works, noxious vapors and smoke. — Barlow v. Bailey, W- 1^F. (71) 95; Bankart v. Houghton, 27 Beav. 425; Salvin v. Brancepeth Coal Co., 9 Ch. 705; Crump v. Lambert, 3 Eq. 409; Savile v. Kilner, 26 L. T. N. S. 277; Smith v. Midland Ry. Co., 25 W. R. 861. The non-consumption, so far as is practicable, of smoke in any manu- facturing or trade process, and the emission of black smoke in such quantity as to be a nuisance from any chimney (not of a private dwelling- house) are nuisances to be summarily dealt with by the local authority. Manure works, and carting night-soil. — Knight v. Gardner, 19 L. T. N. S. 673. Bell-ringing. — Soltau v. De Held, 2 Sim. N. S. 133; Hardman v. Hoi-- berton, V.-C. S., 30 June, 1866 (dissolved 5 Dec. 1866: see W. N. (66) 379). 112 INJUNCTIONS. [PAET II. Noise and v^ation — Steams-hammer, Sfc. — Roskell v. Whitworth, 5 Ch. 459; Goose v. Bedford, 21 W. R. 449; Eaden v. Firth, 1 H. & M. 573; Crump V. Lambert, 3 Eq. 409; Fenwkk v. E. Land. Ry., 20 Eq. 544. Noisy entertainments, collecting disorderly crowds. — Walker v. Brewster, 5 Eq. 25; Inchbald v. Robinson, 4 Ch. 388; Bostock v. N. Staf. Ry. Co., 5 D. & S. 590, 3 Sm. & G. 283. Keeping horses on ground-floor of a London dwelling-house. — Ball v. Ray, 8 Ch. 467; Gullick v. Tremlett, 20 W. R. 358; Broder v. Saillard, 2 Ch. D. 692. Use of garden as a skittle or , bowling-alley. — Barham v. Hodges, Y.-C. H., 2 July, 1876, W. N. (76) 234. Use of a rifle-range so as to be a nuisance to adjoining houses. — Banis- ter V. Bigge, 34 Beav. 287 ; DarvaU v. Dougall, sup. Form 8, p. 222. The right to an injunction against nuisances may, as in other cases, be lost by acquiescence (e. g. by allowing expense to be incuiTed, or a trade to be carried on without taking proceedings) : Swaine v. Great Northern Railway Co., 4 D. J. & S. 211 ; Gaunt v. Fynney, 8 Ch. 8; and see Turner V. Mirfield, 34 Beav. 390; and no legal right under the Prescription Act (as in the case of light obstruction) can be acquired in noise: Sander v. Manley, W. N. (78) 181. But acquiescence in the erection of works which, though noxious in themselves, produce but little injury at first, does not warrant their devel- opment to the extent of causing great damage. Bankart v. Houghton, 27 Beav. 425; and see Baxendale v. McMurra^ 2 Ch. 790. The lessor or reversioner of property cannot, it seems, though his ten- ants the actual occupiers might, maintain an action in respect of a merely temporary nuisance, e. g. from smoke or noise: Jones v. Chappell, 20 Eq. 539; Simpson v. Savage, 1 C. B. N. S. 347; Mott v. Shoolbred, 20 Eq. 22; Coop& V. Crabtree, 19 Ch. D. 193. A surveyor so appointed acts in a quasi-judicial capacity, and is not subject to examination as a witness: Broder v. Saillard, 24 W. R. 456. In cases of nuisance, unless it plainly appears that the conclusion of the Court below upon the evidence was wrong, the Appeal Court is unwilling to reopen the investigation by directing an issue or employing experts to examine and report: Salvin v. Ijorth Brancepeth Co., 9 Ch. 705; and see Inchbald v. Robinson, 4 Ch. 388. As to the form of the order, and that the Court will not thereby declare what specific acts are nuisances, see Walker v. Brewster, 5 Eq. 25. For a collection of cases relating to Nuisances, see Chambers's Public Health and Highway Act, Digest of Cases, 528-572; Kerr on Injunc- tions, 332-399 ; Joyce on Injunctions, 99-130. n. — POLLUTION OP WATER. 1. Injunction restraining Pollution of River hy Town Sewage. Let an injunction be awarded against the Defts, the mayor &c., of the borough of &c., to restrain the said Defts, their servants &c., from and after the second day after the close of the parliamentary CH. V. S. V.J RIVER POLLUTION. 113 session for the year 1871, from causing or permitting tiie sewage of tlie borough of Leeds or an}' part thereof to flow or pass through their main sewer or any other outfall into the river Aire in the iu- formatioa mentioned, unless and until the same shall be sufflcientlj^ purified and deodorized so as not to be or create a nuisance, or be- come injurious to the public health ; And Let a perpetual injunction be awarded against the Defts, the said mayor &c., to restrain them from causing or permitting any new outfall to be made for the con- veyance of the sewage of the said borough or anj' part thereof into the river Aire, or any new sewer or di'ain to be made to communi- cate with their said main sewer, or any communication to be made with such main sewer, or any of the Defts' other sewers and drains whereby any sewage may be discharged or find its way into the said river Aire. — Defts to pay the relator's costs of suit including the costs of the motion for an injunction. — Liberty to apply. — A. G. V. Leeds Corporation, 5 Ch. 583. For order restraining Defts from making any further connection of any drain with either their H. or M. sewer until the hearing, &c. ; that part of the motion which sought an immediate injunction against causing any sewage to pass down the H. and M. sewer into the river Lee being directed to stand over until the hearing on an undertaking by Defts, by dredging or other proper means, to keep the river L. free from all obstructions to navigation caused by an increased deposit of sewage matter, with liberty to apply especially in respect of any injury that might be apprehetided from unhealthv efB.uvia, see A. G. v. Metropolitan Board of Works, 1 H. & M. 298. 2. Similar Decree. Let an injunction be awarded against the Defts, the mayor &e., of H , to restrain the said Defts, their servants &c., from caus- ing or permitting any new outfall into the brook H , or any new sewer communicating with any outfall into such brook, or any drain or other communication with any such sewer, whereby anj' sewage water may pass into the H brook ; and also to restrain the said Defts, their servants &c. (from and after the day of June, 1870), from causing or permitting the sewage of the borougli of- H to flow or pass through outfall sewer A , or outfall sewer B in the (information and bill) mentioned, or any new outfall into the said brook, unless and until the same shall be suffi- ciently purified and deodorized. — Defts to pay costs of suit. — A. G. V. Halifax Corporation, 17 W. R. 1088. (See words added in A. G. V. Corporation of Leeds, sup. Form 1.) The form of this order has been often adopted in similar cases, see North Staffordshire Railway Co. v. Tunstall Local Board, 39 L. J. Ch. 131. For an interlocutory injunction against opening any new drains by 114 INJUNCTIONS. [PAET II, which any additional matter may be brought down, and from executing any works whereby the damage may be increased, see A. G. "v. Luton Board, V.-C. W., 2 Jur. N. S. 180. For order restraining a local board from allowing any fresh communi- cations to be made with a sewer constructed by their predecessors in office, which caused a nuisance to the inhabitants of the adjoining parish by draining into a stream flowing through their parish, unless such drainage should have been first purified from sewage matter, so as not to occasion any pollution to the stream in its passage through such parish : A. G. y. Bichmond, 2 Eq. 306. 3. Pollution of Stream hy Manufacturing Works. Let a perpetual injanction be awarded against the Defts, The S. Papermaking Co. (Limited), to restrain the said Defts, their ser- vants &c., from discharging from their works in the Pit's (bill) mentioned into the river or stream in the said (bill) also mentioned (so as to caase it to flow to the Pit's lands, messuages, and mills therein also mentioned, in a state less pure than that in which it flowed there previously to the establishment of the said works, to the injury of the Pit), any such refuse or other matter as was dis- charged by the Defts from their said works into the said river or stream previously to the (filing of the said bill), or any noxious fluid or other foul matters whatsoever. — Lingwood v. Stowma/rketi, (fee. Co., V.-C. W., 1 Eq. 77. On motion to commit in this case inquiries were subsequently directed for the purpose of ascertaining whether the pouring into the stream at the point where Deft's drain entered it of a liquid of the same composition as that analyzed by Dr. S. on behalf of Pit, would be sufficient to cause the pollution of water complained of at Pit's mill: S. C, 24 Jan. 1868. For order to stay pollution of stream above or within the limits of Pit's land: Crossley v. Ligktowler, 2 Ch. 478. For declaration that the Deft's Act did not legalize the fouling of a stream below a reservoir or store of water thereby authorized, and for in- junction to stay them from so storing and discharging the water as to foul the water to the damage or injury of the owners and occupiers of Pit's dye-works, see Clowes v. South Staffordshire Waterworks, 8 Ch. 125. 4. Inquiry as to Pollution from a given Date. Let the following &c. : 1. An inquiry whether the matters now passing into T brook from the M mills cause any and what greater pollution, to the injury of the Pit, than was caused to the then owner of S mills by the matters passing into the brook from M mills immediately before the day of . 2. An inquiry whether Pit is entitled to any and what compensation in damages from Deft in respect of any nuisance occasioned to Pit CH. V. 8. v.] RIVEE POLLUTION. 115 before the completion of Deft's recent works by matters passing from the M mills in excess of the matter passing into the brook from the M mills immediately before the said day of . — Adjourn &c. For leave to apply in case of any subsequent pollution of a canal by sewage, Defts having, since information filed, diverted the sewage from the canal; and inquiry as to damages, see A. (?. v. Basingstoke Corp., 24 W. K. 817. Hitherto, and especially during the last twenty years, the Court of Chancery has largely exercised jurisdiction to restrain the pouring of sewage and other filth or refuse into a river so as to create a nuisance. When an illegal act is being committed, which in its nature tends to the injury of the public (such as an interference with a public highway or a navigable stream), the Attorney General can maintain an action on be- half of the public to restrain the commission of the act, without adducing any evidence of actual injuiy to the public, and in such a case an in- junction will be granted with costs, although no evidence of actual injury is given. A. G. v. Shrewsbury {Kingsland) Bridge Co., 21 Ch. D. 752; considering^. G. v. Great Eastern Railway Co., 11 Ch. D. 449; A. G. V. Cockermouth Local Board, L. R. 18 Eq. 172; and A. G. v. Ely, Had- denham, §• Sutton Railway Co., L. R. 4 Ch. 194. Injunctions have been obtained on behalf of the public (by informa- tion): see A. G. V. Leeds Corporation, 5 Ch. 583, sup. Form 1, p. 112. — on behalf of the public, and also of a riparian owner (by informa- tion and bill): see A. G. v. Halifax Corporation, 17 W. R. 1088, sup. Form 2; A. G. v. Birmingham Council, 4 K. & J. 528; A. G. V. Luton Board, 2 Jur. N. S. 180. — or on behalf of the riparian owner alone (by bill) : Goldsmid v. Tun- bridge Wells Commrs., 1 Eq. 161, 1 Ch. 349; Spokes v. Banbury Board, 35 L. J. Ch. 105; Crossley v. Lightowler, 3 Eq. 279, 2 Cli. 478; Baxendale v. McMurray, 2 Ch. 790 ; Holt v. Rochdale Corpo- ration, 18 W. R. 885; Bidder v. Croydon Local Board, 6 L. T. N. S. 778. If the effect of drainage works has been to pollute the stream into which they fall, the fact that the local authority (or person) are using the best means in their power, or known to science, for purifying and deodor- izing the sewage or fllth before passing it into the stream, has not saved them from the operation of an injunction, although their efforts to neut- ralize the evil have been taken into favorable consideration upon applica- tions to suspend the operation of the injimction, or even upon motion to commit for breach of the injnnction: A. G. v. Birmingham Council, 4 K . & J. 528 ; S. C. in a subsequent suit, 19 W. R. 561 ; 4 . (3. v. Bradford Canal, 2 Eq. 71; A. G.v. Leeds Corporation, 5 Ch. 583; Bidder v. Croydon Local Board, 6 L. T. N. S. 778. In the absence of express power to create a nuisance, public bodies exe- cuting drainage works for the benefit of their district were bound to exe- cute them so as not to create any nuisance nor to interfere with the right of the riparian owner to the enjoyment of pure water. A. G. v. Colney Hatch, 4 Ch. 146 ; A. G. v. Halifax Corporation, 17 W. R. 1088 ; Goldsmid 116 INJUNCTIONS. [PAET II. V. Tunbridge Wells Comnirs.,1 Eq. 161, 1 Ch. 319; Cator y. Lewisiam Local Board, 5 B. & S. 115. But if parliamentary powers to drain, &o., cannot be executed without causing some nuisance, the Court has declined to interfere (A. G. v. Thames Conservators, 1 H. & M. 1), unless the works, though within the statutory powers, occasion injury from their negligent and unskilful con- struction: A. G. V. Metropolitan Board of Works, 1 H. & M. 298. To induce the Court to interfere, on the ground of individual injury, with the carrying^ out a great public undertaking, such as the drainage of a town, there must be a case of serious and permanent damage, actual or imminent: A. G. v. Oee, 10 Eq. 131; LUlyvihite v. Trimmer, 15 W. K. 763; 4. G. V. Sheffield Gas Co., 3 D. M. & G. 304; and not merely probable or apprehended: A. G. v. Kingston-on-Thames Corporation, 13 W. R. 888. And see Earl of Eipon-Y. Hohart, 3 My. & K. 179. Injunction, and not damages, is the proper relief in river-pollution cases, distinguished in this respect from ancient-light cases, where dam- ages represent the depreciation in value of the property affected: Pen- nington V. Brinsop Coal Co., 5 Ch. D. 769. " Circumstances and requirements of the locality " have been taken into consideration by the Courts in cases of nuisance in manufacturing districts ; though not to the extent of exempting persons carrying on the trade or manufacture by which the nuisance is created from liability in respect of substantial injury to property: see this question discussed in Salvinv. North Brancepeth Co., 9 Ch. 705; St. Helen's Co. v. Tipping, 11 H. L. C. 642. And see Crossley v. Lighfowler, 2 Ch. 478, 3 Eq. 27S , that the fact that a stream has been fouled by others in the district (manufacturing) is no defence to a suit to restrain the fouling by one. The fact that the local authority complaining may have contributed to the existence of the nuisance does not prevent proceedings by them under 18 & 19 V. c. 121, s. 12, in respect of a discharge of chemical matter into a public sewer, the effect of which is to produce sulphuretted hydro- gen gas: St. Helen's Co, v. St. Helen's Corporation, 1 Ex. D. (C. A.) 196. In granting injunctions against river pollution, the practice has been to grant an immediate injunction restraining any jiew communications, but as to existing drains, to suspend the operation of the order for a longer or shorter period, to enable the Def ts to comply with the order by altering their works. In Spokes v. Banbury Board the operation of the order was suspended from 6th March to 1st July, 1865: Goldsmid v. Tunbridge Wells Commrs., 1 Eq. 161, 1 Ch. 349, from 24th November, 1866, to 31st January, 1868; A. G. Y. Bradford Canal, 2 Eq. 71 (eight months); A. G. v. Colney Hatch Asylum, 4 Ch. 146 (five months) ; A. (?. v. Halifax Corporation, 17 W. R. 1088 (8th July, 1869, to 1st June, 1870) ; A. G. v. Leeds Cor- poration, 5 Ch. 583 (2d March, 1770, to end of the parliamentary ses- sion of 1871); A. G. v. Birmingham Council, 19 W. R. 561 (9th March, 1871, to 2d seal day in Michaelmas Term) ; Pennington v. Brinsop Coal Co., 5 Ch. D. 769 (three months). Liberty to apply for a further suspension of the injunction is sometimes reserved: see A. (?. v. Colney Hatch, 4 Ch. 146. CH. V. S. VI.] TRADE MARKS, LABELS, AND NAMES. 117 And if not reserved, further time is usually granted on the terms of paying the costs of the application. Non-compliance with the order, after reasonable time has been given to the Defts, has been punished as contempt of Court by sequestration: Spokes V. Banbury Board, 1 Eq. 42. Section VI. — Trade Marks, Labels, and Names. 1. Interim Order restraining Use of Trade-marh registered under the Trade-Marks Registration Act, 1875. UstTAL undertaking as to damages. — Let the Deft E. be restrained until the day of , or until further order, from infring- ing the Pit's trade-marks registered in pursuance of the Trade- Marks Registration Act, 1875, or either of them, and from selling or offering for sale any tea in, or from otherwise using, wrappers, having imprinted thereon any imitation, or colorable imitation of the Pit's trade-marks, or either of them. For order rectifying the register by removing the words " Bank of England " from a trade-mark for sealing-wax, see Re Hyde §■ Co., 7 Ch. D. 724. 2. Using Trade-marks as to Tools or Cutlery. Let an injunction be awarded to restrain the Defts W. &c. re- spectively (and every and each of them) and the respective servants &c. of the said Defts (and of every and each of them) from stamp- ing, cutting, or engraving, or causing or permitting to be stamped, cut, or engraved, upon any tools or other articles manufactured for, or bought, procured, or sold by them, the words, " Collins and Co., Hartford, Cast Steel, WaiTanted," or any other words similar to, or only colorably differing from such words, or any words or marks so contrived as to represent, or lead to the belief, that the said tools or other articles were the manufacture of the said Collins & Co. ; And from affixing or causing to be affixed to any tools or other articles manufactured for, or bought, procured, or sold by them, or otherwise using or employing or causing or permitting to be used or employed, any labels containing the words &c. {as above) , or any label or labels similar to or only colorably differing from the labels made or used by the said company as in the Pit's (bUl) mentioned, or so contrived and prepared as to represent, or lead to the belief, that the tools or other articles manufactured or sold by the Defts were the manufacture of the said company ; And also 118 INJUNCTIONS. [part II. from selling, exporting, consigning, or otherwise disposing of any tools or other articles having or bearing thereon any such words, marks, or labels, as in the said (bill) mentioned, or any other words, marks, or labels, only colorably differing from the said marks and labels of the said company ; until &c. — Collins v. £rown, Collins V. Cowen, 3 K. & J. 423-428. 3. Selling and Making Secret Preparations and Using Recipes and Trade-marks. Let a perpetual injunction be awarded to restrain the Deft G., her servants &c., from selling, or causing or procuring to be sold, and also from using, or causing or procuring to be used, for the purposes of her business in the (bill) mentioned, under the title or designation of any of the preparations in the (bUl) respectively men- tioned and described as H.'s preparations, any preparations or com- positions for the hair or skin made and compounded by the Deft, or by or under her order or direction, and from selling and exposing for sale, or procuring to be sold, any preparation or composition for the hair described as or purporting to be H.'s preservative balm &c. , or contained in bottles having aflSxed thereto respectivelj' any of such imitation labels as in the (bill) mentioned, or any other labels so contrived or expressed as, bj' colorable imitation or other- wise, to represent the preparations made and sold bj' the Deft, or any of such preparations, to be the same as the said six preparations or any of them lately made and sold by the said H., and now made and sold by the Pit ; and also from making or compounding any preparations for the hair or skin made, or professed to be made, according to any of the recipes or secret methods which were used for that purpose by the said H. in her lifetime ; and from in any manner using the secret of compounding the said preparations or any of them, and from continuing to publish the advertisements and circulars in the (bill) respectively mentioned, or any other ad- vertisements or circulars representing that the business lately car- ried on by the said H. at &c., or the manufacture of the aforesaid preparations called H.'s preparations, is now being carried on by the said Deft, or has been removed to her place of business. — Deft to pay Pit's costs of suit. — Ansell v. Gaubert, V.-C. W., 5 June, 1858 ; following Morison v. Moat, 9 Hare, 241 ; and see Croft V. Day, 7 Beav. 90. 4. Shipping Goods with Pit's Trade-marks. Let a perpetual injunction be awarded to restrain the Defts J. & N. and each of them, their servants &c., from affixing or applying, CH. V, S. VI.] TRADE MARKS, LABELS, AND NAMES. 119 or causing to be aflSxed or applied, to ainy goods manufactared, sold, shipped, or supplied by them any mark, and especiallj' the figure of &c., so contrived as by colorable imitation, or otherwise, to repre- sent the goods manufactured, sold, shipped, or supplied by the Defts as being standard Spanish stripes &c., or other woollen goods manu- factured or shipped by or for the Pits, and from selling, exporting, or shipping, or causing or allowing to be shipped or exported, or otherwise disposing of, any goods manufactured by or for the Defts to which any such mark has been or shall be affixed or applied. — Defts to paj' Pits' costs of suit. 5. Injunction against Use of Trade-mark — Account of ► ' Profits. Reverse decree. — And Let an injunction be awarded to perpetu- ally restrain the Defts their agents &c. from applying the mark or title " Eureka " to any shirts manufactured by the Defts, or to any shirts sold by them unless such shirts be manufactured by the Pit, and from selling or disposing of any shirts already marked with the mark or title " Eureka," unless such mark shall have been applied by the Pit, and with his sanction, and from issuing any boxes or packages containing shirts upon or in which the mark or title " Eureka " shall be applied to shirts not of the Pit's manufacture, and from affixing or using any label, card, or other mark containing the word " Eureka " to or with any shirts not of the Pit's manufac- ture ; And Let an account be taken of the profits made by the Defts in manufacturing and selling, and in selling shirts under the mark or title of " Eureka," since the day of , the date of the (filing of the Pit's bill) ; And Let the Defts F. &c. within (four- teen) daj-s from the date of the chief clerk's certificate, to be made pursuant to this order, pay to the Pit the amount which,, upon tak- ing such account, shall be certified to be payable by the Defts to the Pit ; and within (seven) days after service of this order repay to the Pit the sum of , being the amount of the taxed costs pursuant to the said decree, paid by the Pit to the Defts. — Defts to pay Pit's costs of suit (including the costs of the interlocutory orders) other than his costs occasioned by the appeal. — Liberty to apply. — Ford v. Foster, 7 Ch. 611. For injunction restraining Deft from continuing to use, and from exhibiting or using, the name of " The Pall Mall Guinea Coal Co." in Pall Mall: Lee v. HaLey, 5 Ch. 155. For injunction to restrain the use of the words " Carriage Bazaar " and " opposite Madame Tussaud's," for the purpose of describing Deft's shop in Baker Street, on the ground that the title " Carriage Bazaar " had been sufficiently appropriated by Pits in reference to their business in a 120 INJUNCTIONS. [PAET 11. part of the Baker Street Bazaar: Bovinois v. Peake, V.-C. G., 19 March^ 1868, W. N. (68) 95. For injunction against using the word "Glenfleld" in or upon any labels affixed to packets of starch manufactured by or for Deft, and from in any other way representing, &c., that starch manufactured by or for him is GFleniield starch, or starch manufactured by Pits: Wotherspoon v. Currie, L. R. 5 H. L. 508, 523. Against use of the word "Original," as applied to Beading Sauce: Cocks V. Chandler, 11 Eq. 446; James v. J., 13 Eq. 421. And against using labels containing any inscription intending or ap- pearing to designate pins manufactured by Defts as being made by T. & Co., or by Pits: Edelsten v. Tick, 11 Hare, 86. For decree for account of the gains and profits made by Deft's sale of wire having tallies or labels attached thereto with Pit's trade-mark, or any mark in imitation of, or only colorably differing from that of Pit, stamped or impi-essed thereon; and for an injunction and delivery up of such tal- lies or labels to be cancelled, see Edelsten v. E., 1 D. J. & S. 185, 189; affirmed on appeal: lb. 204. For interim order restraining the defendants from selling, &c., any bottles of brandy, not being brandy bottled by the Pits at their establishment at C, &c., as the Pits' case brandy, and appointing two persons on behalf of Pits to inspect the Defts' premises and any such cases and bottles, and to take samples of the contents, see Hennessy v. Rohmann Sf Co., 25 W. R. 14. 6. Use of Trading Name restrained. Let an injunction be awarded to restrain the Defts Robert Joseph James and Southee, their servants &c., from using the names of Robert James singly instead of the names of Robert Joseph James or R. J. James as part of, or in connection with, any labels aflixed upon any pots of ointment in the (bill) mentioned, sold by the Defts or either of them, or on behalf of them or either of them, and also from stating or inserting in their advertisements or circulars any words or expression asserting or suggesting that the ointment manufactured and sold by the Pits is spurious and not genuine. — No costs on either side. — James v. Ji, 13 Eq. 421. Where a trade circular is issued bona Jide, an interim injunction will not be granted to restrain it unless it is in violation of some contract between the Pit and Deft, however much the balance of convenience may be in favor of granting it: SociAd Anonyme des Manufactures de Glaces v. Tilghman's Patent Sand Blast Company, 25 Ch. D. 1, 2. For injunction against publishing a newspaper under the name or style of " Penny Bell's Life, or Sporting News," or any name or style in which " Bell's Life " shall form part, or in any way occur, see Clement v. Mad- dick, 1 GifE. 101. For injunction restraining on terms publication of the " London Daily Journal " at suit of the owner of " London Journal," who had purchased that paper from the Deft with a restrictive covenant, see Ingram v. Stiff, 5 Jur. N. S. 947. CH. V. S. VI.j TRADE MARKS, LABELS, AND NAMES. 121 Restraining publication of the " Wonderful Magazine, New Series Im- proved," as a continuation of Pit's "Wonderful Magazine:" Hoggsr. Kirby, 8 Ves. 215. For injunction against publishing, &c., a book by the name of " The Children's Birthday Scripture Text Book," or any other title containing as part thereof the words " Birthday Text," or any book or publication so printed, bound, arranged, or contrived as by colorable imitation or otherwise to represent or lead the public to believe that such book, &c. , was or is the same as the book called the "Birthday Scripture Text Book," published and sold by the Pits, see Mack v. Pelter, 14 Eq. 431. For an interlocutory injauction restraining Deft from carrying on, &c., the "Temple Bar " magazine; but the order to be without prejudice to the publication of the said magazine until the hearing of the cause so as the name of " Bentley " does "not appear either in the titlepage or in any other part of the said publication, or in any advertisement of the said publica- tion, and without prejudice to the right (if any) of the Pit to damages or profits in respect of any publication of the work, see Ainsworih v. Bentley, 14 W. R. 630. For injunction restraining the use of the name "Radstock CoUiei-y Proprietors," &c., see Braham v. Beachim, 7 Ch. D. 848. NOTES. " Trade-marks have sometimes been likened to letters-patent and some- times to copyrights, from both of which they differ in many, respects. And I think, to borrow a phrase used by Lord EUenborough in Waring V. Cox, 1 Campb. 869, with reference to a different branch of the law, ' Much confusion has arisen from similitudinaiy reasoning on the subject.' " Lord Blackburn in Johnston v. Orr Ewing, 7 App. Cas. 228. A trade-mark, as defined by the Trade Marks Registration Act, 1875 (38 & 39 V. c. 91), s. 10, consists of " a name of an individual or firm printed, impressed, or woven in some particular and distinctive manner; or a written signature, or copy of a written signature, of an individual or firm; or a distinctive device, mark, heading, label, or ticket; and there may be added to any one or more of the said particulars any letters, words, or figures, or combination of letters, words, or figures; also any special and distinctive word or words, or combination of figures or letters, used as a trade-mark before the passing of the Act, may be registered as such under this Act." Under this section it has been held that "figures" mean numerical figures ; and the Court has refused to direct the registration as a trade- mark, adopted since the passing of the Act of 1875, of a single word or combination of letters, e. g. "Aeilyton: " Re Stephens, 24 W. R. 963; 3 Ch. D. 659 ; or of a single letter though used as a trade-mark before the Act: Mitchell's Trade Mark, 46 L. J. Ch. 876. A description of qual- ity, if combined with other words, initials, or symbols, constitutes a trade-mark capable of registration: Burrows' s Trade Marks, 5 Ch. D. 353. A regulation issued by the Commissioners of Patents that no foreign word in foreign characters shall be registered as a trade-mark has been held ultra vires and void: Kotherham's Trade Mark, 11 Ch. D. 250. A 122 INJUNCTIONS. [PAET U. decision of a foreign tribunal in favor of a trade-mark or label does not preclude an English Court from restraining, on the ground of fraudulent imitation, proceedings to obtain registration of such trade-mark, &c., in this country: Re Farina, 27 W. K. 456. Independently of the statute. Courts of Equity have long exercised jurisdiction to order the delivery up and destruction of counterfeit labels: Edelsten v. Vick, 11 Hare, 86; Farina v. SUverlock, 4 K. & J. 650; and of articles made in infringement of a patent: Betts v. De Vitre, 34 L. J. Ch. 289 ; Tangye v. Stott, 14 W. R. 386 ; and by analogy to order the destruc- tion of bank-notes of a foreign State made in this country for insurgents, and cancellation of the plates: Emperor of Austria v. Day, L. J., 12 June, 1861, 3 D. F. & J. 217. The principle on which Courts of Equity have interfered to protect the use of a trade-mark is that when one man has established a trade in an ai-ticle, for which he has been the first to appropriate some particular, it may be fanciful or geographical, name (M' Andrew v. Bassett, 4 D. J. & S. 380), or some particular mark or label under which the article has acquired reputation, another man will not be allowed to sell a similar article under the same or a closely resembling title, so as to deceive the public into the belief that they are buying from the man who has first acquired reputation for his goods under the particular title, i.e. one man will not be allowed to pass off his goods as those of another: see Perry v. TrueJiU, 6 Beav. 73; Millington v. Fox, 3 My. & Or. 338. But a name which has acquired reputation in the market may be used by a subse- quent manufacturer for the purpose of showing that his goods are manufactured on the same principle, provided he announces the goods as of his own manufacture, and does not lead the public to believe that they have been made by the original inventor of the name, or his suc- cessors in trade: Singer Co. v. Wilson, 2 Ch. D. 434; and see Edelsten V. Vick, 11 Hare, 78; Hirst v. Denham, 14 Eq. 542; Young v. Macrae, 9 Jur. N. S. 322; Liebig, §-c. Co. v. Banbury, 17 L. T. N. S. 298. A trader has a right to make and sell machines similar in form and construction to those made and sold by a rival trader, and in describing and advertising his own machine to refer to his rival's machines and his rival's name, provided he does this in such a way as to obviate any rea- sonable possibility of misunderstanding or deception. Singer Man. Co. v. Loog, 8 App. Cas. 15. But no trader has a right to use a trade-mark so nearly resembling that of another trader as to be calculated to mislead incautious purchasers. The use of such a trade-mark may be restrained by injunction, although no purchaser has actually been misled, for as James, L. J., said, " The very life of a trade-mark depends upon the promptitude with which it is vindicated." — Johnston v. Orr Ewing, 7 App. Cas. 219, 230, 13 Ch. D. 464. In Singer Manufacturing Co. v. Loog, in the Court of Appeal, 18 Ch. D. 412, Lord Justice James made this comprehensive statement of what the law is upon the question of trade-mark or trade designation: " No man is entitled to represent his goods as being the goods of another man ; and no man is permitted to use any mark, sign or symbol, device or other means, whereby, without making a direct false representation himself to a purchaser who purchases from him, he enables such purchaser to tell a CH. V. S. TI.] TRADE MARKS, LABELS, AND NAMES. 123 lie or to make a false representation to somebody else who is the ultimate customer. There is no such thing as a monopoly or a property in the nature of a copjrright, or in the nature of a patent, in the use of any name. Whatever name is used to designate goods, anybody may use that name to designate goods ; always subject to this, that he must not make directly, or through the medium of another person, a false represen- tation that his goods are the goods of another person." The original foundation of the whole law is this, that when one know- ing that goods are not made by a particular trader sells them as and for the goods of that trader, he does that which injures that trader. At first it was put upon the ground that he did so when he sold inferior goods as and for the trader's ; but it is established (alike at law: Blofeld v. Payne, 4 B. & Ad. 410; and in equity: Edelsten v. Edelsten, 1 D. J. & S. 185) that it is an actionable injury>to pass off goods known not to be the Pit's as and for the Pit's, even though not inferior. And, so far, there is no differ- ence between law and equity. But at law it is necessary to prove that an injury is actually done. In equity it is enough to show that the Deft threatened to do, and would, if not prevented, do, that injury. Judg- ment of Blackburn, J., in Singer Manufacturing Co. v. Loog, 8 App. Cas. 29, 30. In order to obtain protection, there must have been exclusive pub- lic user of the trade mark or name, though not necessarily for any long period: see Wood, Trade-Marks, 676; Kerr, 475; but now, by the Trade-Marks Eeg. Act, 1875, s. 2, " registration of a trade-mark shall be deemed equivalent to public use of such mark; " and by s. 3 the registra- tion of a person as first proprietor of a trade-mark shall be prima facie evidence of his right to the exclusive use of such trade-mark, and after five years from registration conclusive evidence of such right. The exclusive right (when established) to the use of a particular name or mark in connection with a particular class of goods will as prop- erty be protected by injunction: Hall v. Barrows, 4 D. J. & S. 150; Ainsworth v. Walmsley, 1 Eq. 508 ; and the injury to the owner's trade by the wilful and fraudulent adoption of his name or mark, or by such a description by the defendant of his goods as to induce the belief that they are goods manufactured by the Pit, will also be compensated by relief in damages or an account of profits: Ford v. Foster, 7 Ch. 611; Edel- sten V. E.,1 D. J. & S. 185; Lee v. Haley, 5 Ch. 155 V Seixo v. Provezende, 1 Ch. 192; Burgess v. B.,3 D. M. & G. 896; and for a general discussion of the principles on which relief is granted in these cases, see Singer Manufacturing Co. v. Wilson, 2 Ch. D. 434, 3 App. Cas. 376. It must be shown (especially on motion for interlocutory injunction : Browne v. Freeman, 12 W. R. 305) that the public has been actually deceived, or that the particular name or mark has been adopted with an intention to deceive, or that deception is the probable, if not the necessary, result: Cope v. Evans, 18 Eq. 138 ; Wotherspoon v. Currie, L. R. 5 H. L. 508 ; Hirst v. Denham, 14 Eq. 542; Woollam v. Ratcliff, 1 H. & M. 259 ; Singer Manufacturing Co. v. Wilson, sup. ; Bradbury v. Beeton, 18 W. R. 33. The use for the sale of a man's goods of bottles, &c., indelibly stamped with the name of a manufacturer of similar goods will be restrained, even 124 INJUNCTIONS. [part II. though the man so using such bottles places on them his own label: Rose V. Loftus, 47 L. J. Ch. 576. But in Farina v. Silverlock, 6 D. M. & G. 214, the possible use for a legitimate purpose of spurious trade-labels manufactured by Deft was held ground for dissolving the injunction, with liberty to Pit to bring an action. And see Delondrev. Shaw, 2 Sim. 237, that fraud " wiU not be intended ■where none is alleged." Where there has been delay by Pit, clearer proof of fraudulent intent and of actual injury will be required:' Rodgers v. R., 22 W. R. 887. But see FuUwood v. F.,Q Ch. D. 176, that the right being a legal right, capable of being enforced by an action of deceit, mere delay short of the statutory period will not affect the right to an injunction. The injury and consequent right to relief are sufficiently established if the goods wrongfully marked have been supplied by Deft to retail dealers for sale as goods of Pit, tfiough not actually sold by Deft as such : Edelsten V. E., 1 D. J. & S. 185; Syhes v. S., 3 B. & C. 541. Where a trade mark or name has been used in ignorance of the right of the first appropriator, an injunction may be granted: Millington v. Fox, 3 My. & C. 358; Welch v. Knott, 4 K. & J. 747; fraud not being necessary to be averred or proved in order to obtain protection for a trade-mark: Singer Manufacturing Co. v. Wilson, 3 App. Cas. 376, 391. Judgment of Blackburn, J., in Singer Manufacturing Co. v. Loog, 8 App. Cas. 30, 81. With respect to the account and damages, special damage must be proved; it -will not be held that goods sold by the Deft would, in the absence of such user, have been sold by Pit: Leather Cloth Co. v. Hirsch- feld, 1 Eq. 299; and the inquiry is, " What damage, if any," &c. ; not as in patent cases, "What damage," &c., see Davenport v. Rylands, 1 Eq. 308. The duty of an innocent consignee of goods bearing a spurious label, and the steps he should take to avoid liability to costs in a suit by the injured owner, are discussed in Upmann v. Elkan, 12 Eq. 140, 7 Ch. 130. And see Burgess v. HiUs, 26 Beav. 244; HuntY. Maniere, 34 Beav. 157. Innocent consignees of goods bearing a spurious label or trade-mark are entitled to a lien on the goods for their charges, in priority to any claim of Pits (the owners of the trade-mark), for their costs: Moet v. Pickering, 8 Ch. D. 372, 26 W. R. 637 (reversing 6 Ch. D. 770) ; and see Ponsardin v. Peto, 33 Beav. 642. Recent cases in which an injunction against the use of particular names has been granted are: M^ Andrew v. Bassett, 4 D. J. & S. 380 (Anatolia Liquorice) ; Seixo v. Provezende, 1 Ch. 192 (Crown Seixo Port) ; Braham v. Bustard, 1 H. & M. 447 (Excelsior Soap) ; Cocks v. Chandler, 11 Eq. 446 (" Original" Reading Sauce); Wotherspoon v. Currie, L. R. 5 H. L. 508 (Glenfield Starch); Zee v. Haley, 5 Ch. 155 (Pall Mall Guinea Coal Co.); Radde v. Norman, 14 Eq. 348 (" Leopoldshall ") ; Hirst v. Denham, 14 Eq. 542 (Turin, Sefton, &c., Cloths) ; Croft v. Day, 7 Beav. 84 (Day & Mar- tin's Blacking); Stephens v. Peel, V.-C. w'., 21 March, 1867, B. 621 (" Stephens' Writing Fluid " changed by Deft into " Steelpen's Writing Fluid ") ; Kinahan v. Bolton, 15 Ir. Ch. 75 (L.L. Whiskey) ; Schweizer v. Atkins, 16 W. R. 1080 (Cocoatina); Apollinaris Co. v. Norrish, 33 L. T. N. S. 242 (London Apollinaris Water); Siegertv. Findlater, 7 Ch. D. 801, CH. V. S. TI.] TRADE MARKS, LABELS, AND NAMES. 125 26 W. R. 549 (Angostura Bitters) ; Braham v. Beachim, 7 Ch. D. 848 (the Kadstock Colliery Proprietors) ; Grillan v. Guenin, W. N. (77) 14 (Tamar Indian Lozenges); Moei v. Clyhouw, M. R., 19 Jan. 1878 (selling cham- pagne in bottles ■with corks or labels bearing the brand or letters M. & C). Refused: Raggett v. Findlater, 17 Eq. 29 (Nourishing Stout); Liebig, Ire. Co. V. Hanhury, 17 L. T. N". S. 298 (Liebig's Extract of Meat) ; Baity v. Hill, 1 H. & M. 264 (Prize Medal Pickles); Cope v. Emm, 18 Eq. 138 (Prairie Cigar Brand); Ainsworlh v. Wahnsley, 1 Eq. 518; Blackwell v. Crabb, 36 L. J. Ch. 504 (Piccalillie) ; Bradbury v. Beeton, 18 W. R. 33 (" Punch-and-Judy ") ; Singer Co. v. Wilson, 2 Ch. D. 434, 3 App. Cas. 376 (Singer Sewing Machines) ; Hirsch v. Jonas, 45 L. J. Ch. 364; Lea v. Millar, M. R. , 26 July, 1876 (Worcestershire Sauce) ; Linoleum Co. v. Nairn, 7 Ch. D. 834 (Linoleum). Misrepresentations on Jiis label have been held to disentitle a Pit to relief against infringers: see on this question Leather Cloth Co. v. Ameri- can Leather Cloth Co., 11 H. L. C. 523; Flavel v. Harrison, 10 Hare, 407; Edelsten v. Vick, 11 Hare, 78; Bidding v. Howe, 8 Sim. 477; Perry v. Truefitt, 6 Beav. 66; Morgan v. M'Adam, 36 L. J. Ch. 228; Lamplough v. Balmer, V.-C. W., W. N. (67) 293 (unauthorized use of words " Patent " or " Royal Letters Patent ") ; Cheavin v. Walker, 5 Ch. D. 850. But the misrepresentation may be condoned by long usage and reputar tion in the trade: e.g. the use of the word "patent " to describe articles known under that title by trade usage, or articles for which the patent has expired: Marshall v. Ross^ 8 Eq. 651. And see this question discussed in Ford v. Foster, 7 Ch. 611, where that which is merely a collateral misrepresentation is distinguished from false representation in the mark or fraud in the trade itself, which, if systema- tic and intentional, would disentitle Pit to relief: Lee v. Haley, 5 Ch. 155; Morgan v. M'Adam, 36 L. J. Ch. 228. Where the Pit failed to establish any title to relief, and the substances used by both parties were intended to be used to deceive the public, no costs were given to the Deft: Estcourt v. Estcourt Hop Co., 10 Ch. 276; Merchant Banking Co. of London v. Merchants' Joint Stock Bank, 26 W. R. 847, 9 Ch. D. 560. A part-owner of trade-marks can siw alone for injunction, erasure, and his share of profits : Dent v. Turpin, 2 J. & H. 139. A foreign manufacturer may obtain an injunction for the infringement of his trade-marks in this country, and an account: Collins Co. v. Brown, 3 K. & J. 423. But the use of a trade-mark affi-xed to goods imported, and not manu- factured, by Pit, who is not shown to have an exclusive contract for their supply, will not be restrained by interlocutory injunction: Hirsch v. Jonas, 45 L. J. Ch. 364. A trade-mark does not exist " in gross," so as to give the purchasers from the trustee of a bankrupt of his interest in a sauce, the secret of which they did not acquire, any right to restrain the original inventor from manufacturing the sauce, of which he alone knows the recipe, under the original title: Cotton v. Gillard, 44 L. J. Ch. 90. And where the secret of a recipe has been acquired by a person without unfair means, he will not be restrained from selling the compound under 126 INJUNCTIONS. [PAET H. the original title, so long as he does not lead the public to believe that his preparation is the only genuine, or prepared by the successors in business of the original discoverer: Massam v. Thorley, &c. Co., 6 Ch. D. 574; James v. J., 13 Eq. 421; but after the death of his employer, from whom he has learnt the secret, he has no exclusive right to the use of the name: Sovenden v. Lloyd, 18 W. R. 1132. Upon the question whether, on the sale of a business and goodwill, the trade-marks will pass, see Shipwright v. Clements, 19 W. R. 599 ; Hall y. Barrows, 4 D. J. & S. 150; Bury v. Bedford, 4 D. J. 8e S. 352. Upon the dissolution and sale of a partnership business, the purchaser may be restrained from using the outgoing partner's name as part of the style of the firm, unless the outgoing partner is dead or a bankrupt: Scott V. Rowland, 20 W. R. 508 ; Banks v. Gibson, 34 Beav. 566. And the former owner, after a sale of his business, either by himself or his assignees in bankruptcy, or a dissolution, will be restrained from using the old name, so as to represent that he is carrying on or continuing the identical business sold, or from which he has retired, though he may set up in a similar trade next door: Churton v. Douglas, Johns. 188 ; Hudson v. Osborne, 39 L. J. Ch. 79. A former partner or assistant will in like manner be restrained from using the name of the firm with which he has been connected so as to mislead the public into the belief that his shop is the shop of his former employers or partners: Hookham v. Pottage, 8 Ch. 91; Glennyv. Smith, 2 Dr. & Sm. 476 ; but so long as he does not attempt to mislead the public into the belief that articles sold by him are in reality manufactured by Pit, a former partner will not after dissolution be restrained from selling articles under the name and labels used by the firm before dissolution: Condy v. Mitchell, 26 W. R. 269; Dence v. Mason, W. N. (78) 42. The assumption of the patronymic name of another family will not be restrained unless it has been exclusively used in connection with a partic- ular business: Du Boulay v. D., L. R. 2 P. C. 430. Injunctions to restrain the use by Defts of so much of their name as was identical with that of Pits were refused in Colonial Life Assurance Co, v. Home §• Colonial Assurance Co., 33 Beav. 548; London Assurance v. London §• Westminster Assurance Co., 32 L. J. Ch. 664; Merchant Bank- ing Co. of London v. Merchants^ Joint Stock Bank, 26 W. R. 847, 9 Ch. D. 560. The use of a particular name as applied to a house or property will not be protected by injunction: Day v. Brownrigg, 10 Ch. D. 294. Section VII. — Infringement op Copyeight. 1. Decree for Perpetual Injunction against Infringement of Copt/right. Let a perpetual injunction be awarded to restrain the Deft M., his workmen &c., from publishing, printing, selling, delivering, or CH. V. S. Til.] INFRINGEMENT OP COPYRIGHT. 127 otherwise disposing of, or causing or (knowingly) permitting to be published, printed, sold, delivered, or otherwise disposed of, any copies or copy of his book in the Pit's (bill) mentioned called " The Imperial Directory of London for 1866," containing the divisions headed — ' ' Streets " — " Official " — " Parliamentary » — " Court " — &c., or any or either of them or any part of them respectively — Deft to pay Pit's costs of suit to be taxed — all further proceedings except for executing the decree to be stayed. — Kdly v. Morris, 1 Eq. 697. 2. Interlocutory Injunction against Infringement of Copyright — without specifying Pirated Parts. Let an injunction be awarded to restrain the Deft, his servants &c., from further printing, publishing, selling, or otherwise dispos- ing of any copy or copies of a book called " A New and Compre- hensive Gazetteer," containing any article or articles, passage or passages, copied, taken, or colorably altered from a book called "The Topographical Dictionary, of England," published b3' the Pits ; until &c. — Lewis v. FuUarton, 2 Beav. 6. The usual undertaking as to damages would now be required. For the like order against publishing a book containing specified parts taken from Pit's work, or any passages copied, taken, or colorably altered therefrom, see Jarrold v. Houlston, 3 K. & J. 722. 3. Injunction staying Infringement, and specifying Pirated Parts. Usual undertaking. — Let an injunction be awarded to restrain the Defts, their workmen &c., from publishing, selling, or advertis- ing for sale the work called &c., in the (bill) mentioned, or any words containing the extracts in the paragraph of the (bill) mentioned, or any of them, and from parting with the possession of any copies of the said work now in their possession or under their control ; until &c. — Smith v. Chatto, 23 W. R. 290. 4. Perpetual Injunction against Printers and Publishers of pirated Directory ^ Account of Copies sold and unsold — Delivery up of the latter — Payment of Net Profits of * the former. Let an injunction be awarded perpetuallj' to restrain the Defts, their manager, canvassers, agents, clerks, compositors, printers, workmen, and servants from further printing, publishing, selling, delivering, or otherwise disposing of the book called " The Ai'chi- 128 INJUNCTIONS. [part II. tect's &c. Directorj-," alleged to be copied and pirated by the Defts W., as in the (bill) mentioned, or any copy or copies thereof, and any future edition thereof, and from copying or pirating from any edition of any of the Pit's Directories in the (bill) mentioned, and every part thereof respectively, and any copj' thereof and ex- tract therefrom respectively, and (from copying &c. from) the Defts' Directory and every part thereof so alleged to have been copied and pira,ted as aforesaid, and (from) the copy and manu- script from which the same was printed, and (from) every copy thereof and extract therefrom, in the preparation of, or for the purpose of assisting in the preparation of, any future edition of the Defts' said Directory, or any other Directory ; And Let the follow- ing dec. 1. An account of the number of copies of the Deft's Directory so printed, and of the number thereof so published by the Defts W. as aforesaid, which the Defts or any other person &c., by their or any of their order, or for their or anj' of their use, have sold or disposed of; and the number of copies now remaining on hand unsold, or undisposed of. 2. An account of all and every sum or sums of money received by the Defts, and each of them, or by any other person &c. , upon or by the sale of such copies as have been sold or disposed of as aforesaid, and also in respect of the extra lines and advertisements contained in the Defts' said Directory, and of the profits made by-the Defts arising out of their printing and publishing their (said) Directory ; And Let the Defts pay to the Pit K. what upon taking the said accounts shall be certified to be the net profit arising from the printing and publication of the Defts' said Directory ; And Let all copies of the Defts' (said) Directory which remain unsold and are in the possession or power of the Defts, or any or either of them, and all printed sheets forming or intended to form part of the same, be delivered up by the Defts to the Pit for destruction. — Liberty to apply. For injunction against publishing the play " Never Too Late to Mend," without first omitting all scenes and passages identical with or only color- ably differing from scenes and passages in the Pit's play of " Gold; " with leave to Pit to bring an action as to Deft's alleged infringement of his novel founded on " Gold," from which novel. Deft alleged, he had adapted his play, see Reade v. Lacy, 1 J. & H. 524. For injunction against publishing a dramatized version of " Lady Aud- ley's Secret " and " Aurora Floyd," see Tinsley v. Lacy, 1 H. & M. 747. And against publishing separately articles written by Pit for a periodi- cal which Defts had purchased, Pit having reserved his copyright, see Mayhem v. Maxwell, 1 J. & H. 312. For injunction against publication in a provincial newspaper of articles taken verbatim from a magazine: Maxwell v. Somerton, 22 W. R. 313. For order for injunction to stay Defts from printing, publishing, and selling, or causing, or being in any way concerned in printing, &c., or CH. T. S. VII.] INFRINGEMENT OP COPYRIGHT. 129 exposing for sale, or otherwise disposing of, any copy or copies of a third or any subsequent edition of the Pit's book, called " The Practice of Photography," &c. ; and that the Defts deliver up to the Pit the unsold copies of the work, and pay the sum agreed on as the profits, of the copies sold, and his costs of suit to be taxed, see Delfe v. Delamotte, 3 K. & J. 581. For similar order for the delivery up, and destruction by the Clerk of Records and Writs, of pii-ated copies, see Prince Albert v. Strange, 2 D. & S. 717. For injunction to restrain the Defts from printing, publishing, selling, or otherwise disposing of, and fromofEering or exposing for sale, a bird's- eye view or plan of Paris and its fortifications ; and the Defts to deliver up to the Pits all unsold copies of the said view or plan now in their posses- sion or power, with inquiey as to damages, and Defts to pay costs, see Stannard v. Harrison, 19 W. R. 811. For the principle upon which in a suit to stay piracy of parts of the Pit's work by the subsequent author of a book on the same subject dam- ages should be assessed, see Pike v. Nicliolas, 5 Ch. 260, n. (though on appeal the order was reversed). For injunctions to restrain an infringement of copyright in a popular song, see Chappell v. Sheard, Chappell v. Davidson, 8 D. M. & Gr. 1, 2 K. & ■j. 117, 123. 5. Injunction against Piracy^ of Original Notes in an EnglisJC Hdition of an American Work. Usual undertaking. — Let an injunction be awarded to restrain Defts the News-agents &c. Companj', their servants &c., from publishing, selling, exposing for sale, or distributing within the British dominions any copies or copy of No. 26 of the serial work described in (par. of the bill) as " The Boy's Companion and British Traveller," or any part thereof containing any notes, altera- tions or other matter contained in the work registered in the book of registry of the Stationers' Companj' under the title " Artemus "Ward, his Book, with Notes and Preface by the Editor of the Big- low Papers, London: J. C. Hotten" &e., not being part of the author's work entitled " Aiiemus Ward, his Book, with- many Comic Illustrations," published in America, but the production of the Pit or of his skill or labor, or anj- other numbers or number in continuation thereof, or any other works or work containing any such matters or matter as aforesaid ; until &c. ; And Let the Deft^ W., his servants &c., be in like manner restrained from delivering i up to the Defts the News-agents &c. Company, or any persons or person whomsoever, except under the order of this Court, any copies or copy of the same No. 26 of the said serial work, so printed and published by the said Defts- respectively as aforesaid, now remaining in the possession or power of the said Deft W. as the printer thereof, or otherwise ; until &c. 9 130 INJUNCTIONS. [PAET II. 6. Dramatic Copyright — Interlocutory Injunction continued during Existence of Copyright. Let the injunction awarded bj' the order dated &c., to restrain the Deft W., his servants &c., and agents until &c., from announc- ing for representation by the circulation of playbills or otherwise, and from representing or causing to be represented the dramatic piece or entertainment advertised by him as in the (bill) mentioned, or any other dramatic piece or entertainment of which the title, scenes, or incidents are copied or imitated or colorably altered from the title, scenes, or incidents of the Pit's drama in the (bill) men- tioned and therein called " Flying Scud " &c., be continued until the expiration of the Pit's copyright in the said drama. 7. Copyright of Designs. UsuAi, undertaking. — Let the Deft C, his servants &c., be restrained until after the &c., from selling the design in the (bill) mentioned, and from appl3'ing the same or any colorable imitation thereof to any substance or article of manufacture, and in particular from manufacturing ornamental sweetmeats made so as to resemble those of the Pit ; and from selling or offering or exposing for sale any substance or article of manufacture to which the said design has been applied ; and in particular the ornamental sweetmeats manufactured by the Deft &c., as in the (bill) mentioned, or any ornamental sweetmeats made so as to resemble those of the Pit. For inquiry whether the copper-plate published by the Deft, entitled, &c., was of the same size and scale, and had the same marginal notes and directions or instructions, and was in all respects the same as the first plate published by the Pit, entitled, &c., save an affected variation in the historical and geographical anecdotes in the margin, &c., see Jeffery v. Bowlen, 1 Dick. 429. For like order, see Trusler v. Cummings, 1 Dick. 429, note. NOTES. COPYRIGHT. In deciding questions of alleged infringement of copyright (where ex- tracts have admittedly been made from Pit's work), the Court will have regard to the quantity and value of the matter taken and republished without the exercise of independent thought and labor, and to the preju- dice to the sale of the original work by the appropriation, even with ac- knowledgment and without any dishonest intention, and republication in a cheaper form of the results of Pit's labor: Scott v. Stanford, 3 Eq. 718; Jarrold v. Houhton, 3 K. & J. 716 (laying down the tests of the ani- mus furandi) ; Folsom v. Marsh, 2 Stoiy Eq. Jur. s. 947, n. ; Kerr, 452. CH. V. S. VII.] INFRINGEMENT OP COPYRIGHT. 131 The question will be whether there has been " a legitimate use of the Pit's publication in the fair exercise of a mental operation deserving the character of an original work: " Wilkins v. Aikin, 17 Ves. 422. Or, again, " Has such mental labor been bestowed upon what has been taken — has it been subjected to such revision and correction as to produce an original result ? " Spiers v. Brown, 6 W. R. 352 (French Dic- tionary case). See also Hotten v. Arthur, 1 H. &M. 603; Jarrold v. Hey wood, 18 W. R. 279; Whittingham v. Wooler, 2 Sw. 428; Mawman v. Tegg, 2 Kuss. 385; Bramwell v. Halcomb, 3 My. & Cr. 737. Information on matters of common knowledge open to all who seek to obtain it (e.g. addresses for a directoi-y or distances for a road-book) must be obtained at the compiler's own expense, as the result of his own inde- pendent labor; "and th# only use that he can legitimately make of a previous publication is to verify his own calculations and results when ob- tained:" Kelly V. Morris, 1 Eq. 697 ("London Directory" case), sup. Form 1; Morris v. Ashhee, 7 Eq. 34; Cox v. Land §• Water Co., 9 Eq. 324; Lewis v. Fullarton, 2 Beav. 6, sup. Form 2, p. 127. The use which a rival author may make of a former work on the same subject as a guide to the same common sources of information is discussed and explained in Pike v. Nicholas, Morris v. Wright, 5 Ch. 251, 279 (to some extent modifying the unqualified strictness with which the use of the previous work by a subsequent author or compiler was limited in Kelly V. Morris, 1 Eq. 697). As stated in Bogg v. Scott, 18 Eq. 458, "the true principle is that the Deft is not at liberty to use or avail himself of the labor which the Pit has been at for the purpose of producing his work; that is, in fact, merely to take away the result of another man's labor, or, in other words, his pi-operty." Identity of object and " intent" in the original and copy is a material element when portions of the one have been bodily transferred to the other: Bradbury v. Hotten, L. R. 8 Ex. 1. *' For the application of these principles to the case of inserting in a sub- sequent work, for the purpose of increasing its value, extracts from works in which copyright exists, see Smith v. Chatto, 23 W. R. 290 ("Thack- erayana "). And see Tinsley v. Lacy, 1 H. & M. 747; Pike v. Nicholas, 17 W. R. 842; Campbells. Scott, 11 Sim. 31. The law of dramatic copyright is governed by the same principles; and to constitute infringement, material and substantial parts of the play must have been taken: Chatterton v. Cave, L. R. 10 C. P. 572, 2 C. P. D. (C. A.) 42, 3 App. Cas. 483. According to modem practice, the Court takes upon itself the duty of going through the two works, and of determining by comparison what is the quantity of pirated matter: seePjiev. Nicholas, 17 W. R. 842; Jar- rold V. Houlslon, 3 K. & J. 708; Spiers v. Brown, 6 W. R. 352; Murray v. Bogue, 1 Dr. 368. In this comparison the principle that " if Deft will take Pit's corn and mix it with his own, the whole shall be taken to be Pit's," will, it seems, be applied: Stevens v. WUdy, 19 L. J. Ch. 190. And a Deft must bear all the mischief and loss which the separation 132 INJUNCTIONS. [PABT 11. (of what belongs to him from what belongs to Pit) may occasion: Mavo- man v. Tegg, 2 Buss. 391. The Deft in cases of alleged piracy must give full discovery as to the original sources from which he asserts that he has derived his informa- tion: Kelly V. Wyman, 17 W. K. 399; and his original MS. is important evidence on the question of bona fides : Hotten v. Arthur, 1 H. & M. 603 ; Spiers v. Brown, 6 W. B,. 352. The practice has been to allege generally in the bill or affidavit that the Deft's work contains several passages which have been pirated from Pit's work, without specifying the particular passages ; and when the injunction is moved for, marked copies of the two books are usually produced for the use of the Court : Sweet v. Maugham, 11 Sim. 51. Until the Deft's work has beeii published, and there is evidence of the actual contents, an injunption will not be granted upon evidence by the Pit of the mode employed by the Deft in preparing his work: Morris v. Wright, 5 Ch. 279. Where the injunction would operate harshly, the Com-t will not suspend publication altogether until the hearing of the cause, but grant the in- junction in a modified form: Ainsworlh v. Berdley, 14 W. R. 630. That copyright exists by statute only, see Reade v. Conquest, 9 C. B. N. S. 768; Jefferys v. Boosey, 4 H. L. C. 833. Registration is, by 5 & 6 V. c. 45, s. 24, made a condition precedent to any legal proceedings in respect of infringement of copyright, but not to the existence of the copyright. Goubaud v. Wallace, 25 W. R. 604. The effect of this statute upon a work, the first edition of which was pub- lished before 1 July, 1842 (when registration was not a condition precedent to the title to sue), is that the new matter contained in subsequent editions cannot be protected by suit until registration : Murray v. Bogue, 1 Drew. 353. Registration of the first number of a magazine is sufficient for protec- tion of a serial published therein in successive numbers, without register- ing every subsequent number: Henderson v. Maxwell, 4 Ch. D. 163, but registration must follow, and not precede, publication: S. C. 5 Ch. D. 892. In the case of copyright in paintings,, drawings, and photographs, no action shall be sustainable, nor any penalty be recoverable in respect of anything done before registration, 25 & 26 V. c. 68, s. 4. On the distinction in this respect between registration of books and of works of art, see Copinger on Copyright, 72. The provisions of 5 & 6 V. c. 45, ss. 13, 24, as to registration must be strictly complied with to enable proceedings for infringement of copyright to be maintained. A wrong statement of the date of first publication is fatal to the suit: Page v. Wisden, 17 W. R. 483; Low v. Routledge, 1 Ch. 42;'3 H. L. 100; and not only the year and month, but also the day of first publication must be entered: Mathiesony. Harrod, 7 Eq. 270; Wood v. Boosey, L. R. 2 Q. B. 340. Mere registration of the title of an intended work does not give copy- right in the title before publication, so as to entitle the person registering to restrain the use of the title by another: Maxwell v. Hogg, 2 Ch. 307; but see Weldon v. Dicks, 10 Ch. D. 247. The assignee for a term of a copyright will not be restrained from sell- ing after the expiration of the term copies printed by him during it: CH. V. S. VII.J INFRINGEMENT OP COPYRIGHT. 133 Howitt V. Hall, 10 W. R. 381 ; and the assignor is similarly entitled, in the absence of special contract to the contrary, to sell copies printed by him before the assignment: Taylor v. Pillou^,7 Eq. 418. An assignment of copyright must be in writing: Leyland v. Stewart, 4 Ch. D. 419. But after injunction granted. Deft will not be allowed, without Pit's consent, to continue the sale of copies of a book already published, even on terms of keeping an account: Sweet v. Maugham, 11 Sim. 51. Copyright is divisible so as to be claimed for sufih portion of a work as is first published in this country: Loia v. Ward, 6 Eq; 415. In the case of a foreign dramatic work the translation, required in order to give the author or his assignee the benefit of 15 & 16 V. c. 12, must be of the whole work, without alteration or omission, and not a mere imita- tion and adaptation for the English stage: Wood v. Chart, 10 Eq. 193 (^Frou-Frou case). Dramatic compositions are "published" by public representation: Boucicault v. Chatterton, 25 W. R. 287, 5 Ch. D. 267. The right to an account is incident to the perpetual injunction at the hearing: Parrotty. Palmer, 3 M. & K. 632; Baily v. Taylor, 1 R. &M. 73. In Pike v. Nicholas, 5 Ch. 260, n., it is stated that in cases of literary piracy the Deft must account for every copy of his work sold, as if it had been a copy of Pit's, and pay Pit the profit which he would have received from the sale of so many additional copies. But see ColhurnY. Simms, 2 Hare, 560; Delfe v. Delamotte, 3 K. & J. 681, from which it appears that the Pit whose copyright has been infringed is not entitled to more than an account of the net profits of the actual sales. For the purposes of the account, Pit may require Deft to set out the number of pirated copies sold by him, and may continue the suit until such discovery is given : Stevens v. Brett, 12 W. R. 572. Upon the subject of copyright the following cases may be consulted : — Abridgment. — Fair abridgment has been held no piracy: Dodsley v. Kinnersley, Amb. 403; but there must be the fair exercise of a mental operation deserving the character of an original work: Wilkins v. Aikin, 17 Ves. 422; and see Kerr, 457; Gyles v. Wilcox, 2 Atk. 143; Bell v. Walker, 1 Bro. C. C. 451. Calendar. — Longman v. Winchester, 16 Ves. 269 ; Matthewson v. Stock- dale, 12 Ves. 270. Catalogue. — A catalogue of bookseller's list will be protected so far as it is not a mere dry list of names, but contains original descriptive matter: HoHen V. Arthur, 1 H. & M. 608 (Catalogue of historical and antiquarian books with notes and anecdotes) ; Grace v. Newman, 19 Eq. 623 (Cata- logue of monumental designs) ; but in Cobbett v. Woodward, 14 Eq. 407, an " Illustrated Furnishing Guide," or catalogue of furniture on sale, on the ground that it was a mere advertisement, was not protected. The necessity of strict compliance with the conditions as to registration of designs is illustrated by Sarazin v. Hamel (2), 32 Beav. 151 ; Pierce v. Worth, 18 L. T. N. S. 710; Norton v. Nichols, 4 K. & J. 475. The assignment of, or license of the right to apply, the design must be in writing, and cannot be granted before registration : Jewitt v. Eckhardtj 26 W. R. 415, 8 Ch. D. 404. 134 INJUNCTIONS. [part II. The combination of two or more old designs is not a new and original design capable of registration, or entitled to protection: Lazarus v. Charles, 16 Eq. 117; MuUoney v. Stevens, 10 L. T. N. S. 190; but see Harrison v. Taylor, 4 H. & N. 815. The seller of pirated copies of an engraving is liable, though ignorant of the piracy: Gambart v. Sumner, 5 H. & N. 5. Dictionary. — Spiers v. Brown, sup. ; and see Kerr, 455. Directory. — Kelly v. Morris, 1 Eq. 697; Morris v. Ashhee, 7 Eq. 34; Morris v. Wright, 5 Ch. 279. Dramatized novel. — The fact that a novel when published has been dramatized by the author does not prevent any one else from also inde- pendently dramatizing it: Toole v. Young, L. R. 9 Q. B. 523; see also Eeade v. Comjuest, 9 C. B. N. S. 755, 11 C. B. N. S. 479. But although there is no infringement of the copyright of a novel in merely dramatizing it, and representing the dramatized version: Reade v. Lacy, 1 J. & H. 524; the printing and publication of such di-amatized ver- sion, even though not for the purposesof sale, is an infringement which will be restrained by injunction: Tinsley v. Lacy, 1 H. & M. 747. Encyclopcedia. — Mawman v. Tegg, 2 Kuss. 385. Republication of articles in a separate form by the proprietor of an encyclopaedia or periodi- cal may be restrained by the author who has reserved his copyright, 5 & 6 V. c. 45, s. 18. And see Bishop of Hereford v. Griffin, 16 Sim. 190. Immoral publications and engravings. — No copyright exists therein : Stockdale v. Onwhyn, 5 B. & C. 173; Walcot v. Walker, 7 Ves. 1; Fores V. Johnes, 4 Esp. 97. Law reports. — Head-notes of cases will be protected: Sweet v. Benning, 16 C. B. 459; and see Saunders v. Smith, 3 My. & Cr. 729. Letters. — The jurisdiction to restrain the publication of letters has been rested on the ground that such publication is a breach of contract or confidence, and a fortiori will the jurisdiction be exercised when it is intended to make the letters a source of profit, for then there is also a vio- lation of the exclusive copyright of the writer: Copinger Copyright, 30; Kerr, 187. Magazine or periodical. — The republication in a separate form by the proprietors of a periodical of articles written for the periodical will be re- strained under 5 & 6 V. c. 45, s. 18, -when the author's copyright has been reserved: Mayhem v. Maxwell, 1 J. & H. 812; and, when not so reserved, publication in a separate form on behalf of the author: Henderson v. Maxwell, 4 Ch. D. 163. And in Smith v. Johnson, 4 Giff. 632, the republication in supplemental parts of a magazine (not being reprints) of tales contributed thereto was restrained as an infringement of the author's copyright. Map. — A map must be registered under 5 & 6 V. o. 45, before a suit can be maintained in respect of infringement of the copyright therein: Stannard v. Lee, 6 Ch. 346. Not so a bird's-eye view or pictorial plan: Stannard v. Harrison, 19 W. R. 811. Musical composition. — Copyright in musical compositions is regulated by 5 & 6 V. c. 45, ss. 20, 21, 22. An assumption of the name and description of a popular song, in the CH. T. S. VIII.] LETTEES AND DOCUMENTS. 135 melody of which there is no copyright, may be restrained by injunction : Chappell V. Sheard ; v. Davidson, 2 K. & J. 117, 123; and see S. C. 8 D. M. & G. 1, where the injunction was continued only on the terms of an undertaking to bring an action, and be answerable in damages. For purposes of registration a pianoforte arrangement of the full score is a separate and distinct work from the opera itseH: Wood v. Boosey, L. R. 2 Q. B. 340, 3 Q. B. 223 ; though such an arrangement, without authority, would, it seems, be a piracy: see L. R. 3 Q. B. 228; D'Alniaine V. Boosey, 1 Y. & C. 288. But see Boosey v. Fairlie, 7 Ch. D. 301, that the additional entry of a date applicable to the independent pianoforte arrangement and deposit of that work does not invalidate the registration nor affect the sole right of performing the unpublished opera for which protection was claimed by registration. Newspapers. — A new^aper does not require registration as a book under 5 & 6 V. c. 45, s. 24; but the title of it, like a trade name, will be protected by injunction : Kelly v. Hutton, 3 Ch. 703, 16 W. R. 1182 ; Cox V. Land Sf Water Journal Co., 9 Eq. 324, which also decides that the proprietor of a newspaper has such a property in all its contents that he is entitled, without registration, to sue in respect of piracy. But in a later case it was decided by Jessel, M. R., declining to follow the decision of Vice-Chancellor Malins in Cox v. Land §• Water Journal Co., uhi supra, that a newspaper is within the Copyright Act (5 & 6 V. c. 45), and requires registration under that Act in order to give the proprie- tor the copyright in its contents, and so enable him to sue in respect of a piracy: Water v. Howe, 17 Ch. D. 708. In this case it was also decided that to enable the proprietor of a newspaper to sue in respect of a piracy of any article therein, he must show, not merely that the author of the article has been paid for his services, but that it has been composed on the terms that the copyright therein shall belong to such proprietor. And see the question of newspaper copyright discussed in Exp. Foss, 2 D. & J. 230; Piatt v. Walter, 17 L. T. N. S. 157. Under the head of property in the title of a newspaper or trade name, see Clement v. Maddiek, 1 Giffi. 101. Topographical dictionary. — Lewis v. Fullerton, 2 Beav. 6. Travelling handbooks and itineraries. — Murray v. Bogue, 1 Dr. 353 (" Handbook for Switzerland "); Carey v. Kearsley, 4 Esp. 168 (" Pat- terson's Roadbook "). Section VIII. — Letters and Documents. 1. Injunction against Printing and Publication of Private Correspondence. Let an injunction be awarded against the Defts S., R., and H., to restrain them, their servants &c., from printing or publishing any letters written or sent by the Pit to any correspondents or cor- respondent or other persons or person, or any copies of or extracts from such letters of the Pit ; until &c. 136 INJUNCTIONS. [PAET II. 2. Injunction against Publication of Letters or Disclosure of their Contents. "And the Deft by his counsel consenting to this decree. — Decree that a perpetual injunction be awarded against the Deft O., his ser- vants &c. , to restrain him or them from printing or publishing the letters written to him by the Pit, or showing them or any of them, or any copies or copy, extracts or extract of or from them or any of them, to any person or persons, and from informing any person or persons of their or any of their contents." — Deft to pay Pit's costs of suit. — Palin v. Gathercole, 1 CoU. 565. For injunction against publication of Pope's letters to Swift: Pope y. Curll, 2 Atk. 342 ; and see Thompson v. Stanhope, Amb. 737 (L. Chester- field's letters). 3. Enjoining the Return of Documents. Let an injunction be awarded to restrain the Deft H. from detaining and keeping possession of the books, deeds, documents, and papers removed by him the said Deft, or by his order, from the chambers occupied by the Pits, for retaining which no written authority has been produced by the Deft, as mentioned in the Pits' affidavit of &c., or any or either of them, except the five boxes not claimed by the Pits, and from permitting the same or any or either of them, except the five boxes, to remain away from the office of the Pits, or from parting with the books &c. removed by the Deft, or by "his order, from the chambers occupied by the Pits, or any or either of them, except the said five boxes, to any person or persons other than the Pits, and from destrojdng, muti- lating, or obliterating the said books &c., or any or either of them, except as aforesaid, or any parts or part thereof respectively, or any entries or entry therein, and from making any alteration, inter- lineation, or erasure in the same, or any of them ; until &c. For an order for return of books, documents, and extracts which had come into Deft's possession in the course of a confidential employment, and restraining him from taking and retaining any copies and extracts, and from communicating the particulars or the contents thereof or any of the information therein contained, see Evilt v. Price, 1 Sim. 483. 4. Injunction against Opening Letters of another Firm, or supplying the Orders therein contained. Let an injunction be awarded to restrain the Defts B. &c., their agents &c., from receiving, retaining, or opening any letters or CH. V. S. Till.] LETTEES AND DOCUMENTS. 137 letter addressed " C. Schiele" or " Schule" and Co. &c., or other- wise addressed to the Pit Christian Schiele, or to the Pit's said firm of C. Schiele and Co., as in the (bill) mentioned, and from taking advantage or making use o£ the communications or informa- tion, and from supplying the orders or any of them contained in any such letters, and from in any manner availing themselves of or using the contents of any such letters ; until &c. — Schiele v. BrakeU, 11 W. R. 796. For an undertaking by the Defts until the hearing not to open, except in the presence of the Pit or his agents, any letter addressed to him at No. 190 R. Street, unless it should appear either on the outside or by some other indication than the address No. 190 R. Street, that the same was intended for the Defts, see Stapleton v. For. Vin. Assoc, 12 W. R. 976. NOTES. The receiver's right of property in letters is at most joint with that of the writer: see Pope v. Curll, 2 Atk. 342 ; and is qualified by the right of the latter to restrain their publication without his consent, on the ground of breach of contract or of confidence ; and also, where the publication is intended for purposes of profit, on the ground of infringement of the exclusive copyright of the writer therein: see Copinger Copjfight, 30; Story Eq. Jur. ss. 944-947. For the application and qualification of this rule, see, Hopkinson v. L. Bwrgldey, 2 Ch. 447 ; Howard v. Ounn, 32 Beav. 462 ; Gee v. Pritchard, 2 Swan. 403; Thompson v. Stanhope, Amb. 739; Oliver v. 0., 10 W. R. 18; Bishop oj Exeter v. Shutte, sup. Form 1 (and see 7 Sol. Jour. 485), in which case an injunction was obtained restraining the alleged threatened publication in "Life and Times of the Bishop of Exeter," of private correspondence of the Bishop, extending over forty years, which had been placed in the Deft's hands as material for his work. The bill, it seems, was on the 23d April, 1863, dismissed, on the denial of the Deft that he ever intended to publish the letters unless the Bishop's consent had been obtained, but without costs. And see P. Albert v. Strange, 1 Mac. & G. 25, 2 D. & S. 652, Phillips Copyright, 7, where publication of a catalogue of private etchings, not intended by the author for publication, was restrained. The Court will restrain the publication of information obtained in a confidential capacity: Eoitt v. Price, 1 Sim. 483; or derived from produc- tion of documents: Williams v. P. Wales Co., 23 Beav. 338. And where the Deft has surreptitiously obtained access to the Pit's accounts, books, and other documents, he will be restrained from printing or otherwise copying, and from distributing or parting with any copies, or otherwise in any way publishing such accounts, &c. : Tipping v. Clarke, 2 Hare, 383 ; Marshall v. Watson, 25 Beav. 501 ; and also from making any use of trade secrets, the knowledge of which has been surreptitiously acquired: Morison v. Moat, 9 Hare, 241. A person will also be restrained from opening letters addressed to, and 138 INJUNCTIONS. [PAET II. thus obtaining orders or custom intended for, another: Edginton v. E., 11 L. T. N. S. 299 ; ScUele v. Brakell, 11 W. R. 796, sup. Form 4. The Postmaster General will not be restrained from delivering business letters, directed to Pit at the address of his former employers, otherwise than at his present place of business (in the same street and under a very similar firm): Stapleton v. Foreign Vin. Assoc, 12 W. R. 976. The Court has no jurisdiction to restrain the publication of a libel, and the decisions to the effect that the publication of any letter, advertise- ment, or other document which is injurious to the property, either in money or reputation, of another, may be restrained (^Dixon v. Holden, 7 Eq. 493; Springhead Co. v. Riley, 6 Eq. 551), have been distinctly over- ruled: Prudential Co. v. Knott, 10 Ch. 142; and see Mulkern v. Ward, 13 Eq. 619; Clark v. Ffeeman, 11 Beav. 112; Fleming v. Newton, 1 H. L. C. 363; Hammersmith, §-c. Co. v. Dublin, Sfc. Co., I. R. 10 Eq. 235. On the same principlfe the Court has declined to restrain the continued publication by advertisement of a letter of apology given by the Pit as part of an arrangement under which a prosecution against him under the Merch. Marks Act, 1862, was abandoned: Fisher ^ Co. v. Apollinaris Co., 10 Ch. 297. The latest cases (since the Judicature Act 1873, s. 25, sub. 8) deter- mine that the publication of a libel injurious to trade or property may be restrained by interlocutory injunction, without waiting for the finding of the jury that the writing complained of was libellous. In order to obtain an injunction in such a case, it is sufficient for the Pit to show that the libel is calculated to injure his trade or property; it is not necessary that he should prove actual damage: Thorley's Cattle Food Co. v. Massam, 14 Ch. D. 763; Thomas v. Williams, 14 Ch. D. 864; Hill Consolidated Gold Mining Co. v. BeaU, 20 Ch. D. 501, 502; Hill v. Hart Davies, 21 Ch. D. 798. And see Jamieson v. Teague, 3 Jur. N. S. 1206, for an injunction to restrain publication of a judgment, by advertising for sale the debt in respect of which the judgment, on an agreement not to publish it in any way, was given. Section IX. — Comments on Pending Proceedings. Injunction restraining the Delivery of a Sermon advertised to he with Special Reference to Pending Proceedings. UsuAi/ undertaking. — Let an injunction be awarded to restrain the Deft B. from preaching or delivering any sermon or address with special or other reference to the trial of this cause, and from publishing or distributing, or being in any way instrumental in publishing or distributing, the printed handbill or placard being the exhibit &c., or any like handbill or placard or notice, and from otherwise prejudicing and interfering with the trial of this cause, or the persons to be examined as witnesses at the bearing thereof. — Machett v. Seme Bay Commissioners, 24 W. R. 845. CH. V. S. X.J PARTNERS. 139 NOTES. Although publication of a libel will not be restrained, the publication by persons interested of exparte statements of pending proceedings {Cole- man V. W. Hartlepool By. Co., 8 W. R. 734; Brook v. Eoans, lb. 688), or of comments, in anticipation of a trial, calculated to prejudice the public mind and obstruct the course of justice (Tichborne v. Mostyn, 7 Eq. 55, n. ; Daw V. Eley, lb. 49; Machett v. Heme Bay Commrs., 24 W. R. 845); or, with or without comment, of the pleadings, evidence, petition, or any ex- parte statement in any pending cause or matter, will be restrained and punished as a contempt of Court: He Cheltenham §• Siuansea Can. Co., 8 Eq. 580; Felkin v. Herbert, 12 W. R. 241; and an apology must be made and published as the condition of not committing (in the case of a newspaper) the publishers and printers : General Exchange Bank v. Horner, W. N. (68) 259; Robson v. Dodds, 17 W. R. 782. Section X. — Partners. 1. Injunction against acting as Partner. Let an injunction be awarded to restrain the Deft B., his agents and servants, from entering into any contract or contracts, and from accepting, drawing, indorsing, or negotiating 'any bills or bill of exchange, notes or note, or written securities or security, in the name of the partnership firm of D. and B. ; and from contracting any debts or debt, and buying and selling any goods, and from making or entering into any verbal or written promise, agreement, or undertaking, and from doing or causing to be done any acts or act, in the name or on the credit of the said partnership firm, or whei eby the said partnership firm can, or may, in any manner be- come or be made liable to, or for the payment of, any sums or sum of money, or for the performance of any contract, promise, or undertaking ; until &c. For interlocutory order restraining Deft from introducing or employing one of his sons as a clerk (in breach of the partnership contract) without the consent of his partner, Watney v. Trist, L. J. Ch. 412. 2. Interim Order in an Action for Dissolution of Partnership restraining Deft from drawing Checks ^c, in the Name of the Firm until after the Trial. And the Pit by his counsel undertaking not to draw, make, ac- cept, indorse, or negotiate any check, bill, note, warrant, or security 140 INJUNCTIONS. [part II. in the name or firm of the copartnership in the writ mentioned, ex- cept so far as the Deft may do so under the terms of this order, Let the Deft B. (the partner) be restrained^ until &c. , from drawing, making, accepting, indorsing, or negotiating any ch^eck, bill, note, warrant, or security whatever in the name or firm of the copartner- ship, otherwise than for or on account of the said copartnership, and from receiving, using, emploj'ing, or retaining any money, se- curities, or property of the said copartnership for his own separate use, and from placing,, keeping, or permitting the moneys of the said copartnership to stand at any bank to or on the separate and private account of the Deft, or on any account other than the joint account of the said copartnership. — But this order is not to pre- vent eithfer party from drawing out of the net' profits of thei said partnership to the extent of one half of such net profits or to the extent of £ a quarter each if the half of such profits shall ex- ceed that sum. — Lemamn v. Berger, 34 L. T. N. S. 235. 3. Injunction on Dissolution of Partnership. Let an injunction be awarded to restrain Deft and his (servants - and) agents from intermeddling with the partnership assets, and from signing or using the name or style of firm of H. and D., or from trading, or dealing, in or underthat name or Bt3ie ; until &c. ^- Directions for receiver. For order staying partner, during the partnership term, from carrying on business with other persons in the name of the old firm, and publish- ing notices of dissolution, see England v. Curling, 8 Beav. 130. For order restraining a partner from applying any of the moneys and effects of the partnership, otherwise than in the ordinary course of busi- ness, and from obstructing or interfering with Pit in the exercise or enjoy- ment of his rights under the partnership articles, see Hall y. H., 12 Bear. 414, 20 Beav. 139. For injunction to stay Deft from carrying on business in the partner- ship name, at the partnership premises, Q. Street, of which he had renewed the lease, and from employing the assets of the partnership in the Q. Street business, see Clements v. Norris, 8 Ch. D. 129. 4. Injunction on Dissolution restraining carrying on Business or soliciting Custom in the Name of the Old Firm. " Let an injunction be awarded to restrain the Deft F., his ser- vants &c., from issuing or sending, or causing or procuring to be issued or sent, to any person or persons, any copies or copy of the circular or letter in the (bill) mentioned, signifying or importing that the business carried on by the said Deft is, and from in any CH. V. S. X.J PARTNERS. 141 manner representing such business to be, a continuation of the business formerly carried on by the firms of F. L. & Co., and B. L. & Co. in the (bill) mentioned, or by either of such firms ; and from in anj' manner soliciting or inyiting any person or persons, who at the date of the indenture in the (bill) mentioned, was or were a customer or correspondent, customers or correspondents, of the said firms of &o., or either of such firms, from causing or procuring any such person or persons to be solicited or invited to become or be a customer &e. (as above) of, or to employ the said Deft in, the business carried on by him, or to cease from employing or not to employ the Pits in the business formerly carried on by the said firms of F. L. & Co. and B. L. & Co. or either of them." — Defts to pay Pits' costs of suit, to be taxed. 5. Injunction against the Use of Trade Name on Dissolution of Partnership, and against soliciting Orders from Customers of the Firm. Let an injunction be awarded against Deft B. C. to restrain him, his servants &c., until &c., from resuming or carrj'ing on the busi- ness of &c., either alone or in partnership with his son B. C. the younger in the (bill) mentioned, or any other person or persons, under the firm or style of B. C. & Co., or B. C. Son & Co., or under any other style or firm calculated to induce the customers of the firm of B. C, W. & Co. in the (bill) mentioned, or the public generally, to believe that the Deft B. C. is carrying on the business of the last-mentioned firm, and from thereby, or otherwise in any manner holding out that the said Deft is carrying on the business of , in continuation of or in succession to the business carried on by the said firm of B. C, W. & Co., and also from receiving or retaining, or in &ny manner interfering with, any letters or messages addressed to or intended for the said firm of B. C, W. & Co., by whatever description or style or manner such letters or messages maybe respectively addressed. — Witt v. Corcoran, V.-C. B., 13 June, 1873. S. C. made perpetual 24 July, 1874. For injunction to restrain Deft from resuming or carrying on business in a particular neighborhood, either alone or in partnership, under a cer- tain style or firm of which he had sold the goodwill, or holding out that he carried on such business in continuation of or in succession to the late firm, see Churton v. Douglas, Johns. 198. 6. Injunction against removing Partnership (^Theatrical') Property — Receiver. Usual undertaking as to damages. — Let an injunction be awarded to restrain the Deft S., his servants &e., from taking possession of, 142 INJUNCTIONS. [part II. removing, selling, disposing of, or intermeddling with any part of the scenery, machinery, dresses, properties, effects, and things, belonging to the Pit and Deft as partners, in the joint a'dventure in the Pit's (bill) mentioned ; until &c. — And Let a proper person be appointed upon his first giving security, to take possession of the said scenery &c. (as above), so belonging to the Pit and Deft; And Let the Pit H. and the Deft S. deliver over to such receiver the said scenery &c. NOTES. As a general rule, matters of internal regulation between partners (in- cluding companies corporate or unincorporated) will not be interfered with by the Court, unless the members or member of the firm to whom the management of the business has been intrusted by the others are act- ing illegally and in breach of the trust reposed in them, or in violation of the partnership contract : Lindley on Partnership, 935. A partner will be restrained from depreciating the property: Marshall V. Watson, 25 Beav. 501 ; and until sale, stipulated for in the agreement for dissolution, from doing any act whereby the value of the goodwill may be prejudiced: Turnery. Major, 3 Gi"ff. 442; and generally from acts in- consistent with the partnership agreement or with the duties of a partner, even though a dissolution is not prayed: Watney v. Trist, 45 L. J. Ch. 412; Kerr on Injunctions, 164; Joyce on Injunctions, 522. A partner will be restrained from carr5ring on business, soliciting cus- tom, or assuming the trade name, on the footing of being the representa- tive of the old firm, of which, upon dissolution, he has sold the goodwill to his former partners: Burrows y. Foster, Witt v. Corcoran, sup., Forms 3, 4; Churton v. Douglas, Johns. 174; Labouchere v. Dawson, 13 JEq. 322; or from which he has retired: Hookham v. Pottage, 8 Ch. 91; Glenny v. Umilh, 2 Dr. & Sm. 476. But see Clark v. Leach, 1 D. J. & S. 409, 32 Beav. 14, that a clause in the partnership articles which would give the dissolving partner the rJght to such an injunction will not be applicable where the partnership has been continued at will after the expiration of the term. A partner who has been expelled under a provision in the articles of partnership, and has been repaid his share of the capital, will not be re- strained from carrying on the business on his own account, and soliciting the old customers of the firm: Dawson v. Beeson, 22 Ch. D. 504, following Walker v. Mottram, 19 Ch. D. 355. As to the right to the partnership name or style, as included in the purchase of the goodwill, see Banks v. Gibson, 34 Beav. 566; Hall v. Barrows, 4 D. J. & S. 150; Johnson v. Helleley, 34 Beav. 63. On a disso- lution of partnership, an assignment of the goodwill and business carries, as between the vendor and purchaser, the exclusive right to the use of the business name: Levy v. Walker, 27 W. R. 370, 10 Ch. D. 436. A partner withdrawing from a periodical so that the concern must be wound up, will not be restrained from advertising the discontinuance, as regards himself, of the publication : Bradbury v. Diekens, 27 Beav. 53. The sm'viving partner was restrained, during the period given to the CH. V. S. XI.j COMPANIES, COBPOEATIONS, ETC. 143 representative of the deceased partner for electing to continue the business, from carrying on the business under any other firm or style than that formerly used: Evans v. Hughes, 18 Jur. 691. . The question of the right of surviving partners to carry on the business in the old name, and to restrain the executors from carrying on business under the old name, until the right was established (at law), is discussed in Lindley, 887, citing and commenting on Webster v. PT., 3 Swan. 4.90; Lewis V. Langdon, 7 Sim. 421 ; and see Kerr, 168. Mere unsoundness of mind (as distinguished from lunacy found by inquisition) of a partner will not justify the others in excluding him from the business: Anon., 2 K. & J. 441. And see as to the rights of an insane partner not so found, Jones v. Lloyd, 18 Eq. 265. The bankruptcy of a partner gives the solvent partner the right to sell the partnership property to pay the partnership debts: Fox v. Henbury, Cowp. 445; and see Lindley, 1148. But this right is personal, and cannot be assigned, and accordingly an injunction was granted at suit of a bank- rupt partner's assignee to restrain a sale by the solvent partner's execution creditor by assignment: Fraser v. Kershaw, 2 K. & J. 496. As to the right of the surviving partner to restrain execution upon partnership goods for the debt of his partner who died before the writ was delivered to the sheriff, see Newell v. Townsend, 6 Sim. 419. Clubs not being associations for the purpose of making profit are not partnerships: Lindley, 57; and the committee will not be restrained from expelling a member : Lyttleton v. Blackburn, 33 L. T. N. S. 641 ; Gardner v. Fremantle, 19 W. R. 256; except perhaps when the discretion of the committee has been corruptly, capriciously, or not bona fide exercised: see Hopkinson v.^Marq. Exeter, 5 Eq. 63; Fisher v. Keane, 11 Ch. D. 353. Section XI. — Companies, Coepoeations, and othee Public Bodies. 1. Injunction against Railway Company proceeding on Notice to Treat. Vary order. — And Let an injunction be awarded to restrain the Defts, their solicitors, agents &c., until &c., from proceeding under the warrant in the (bill) mentioned issued to the sheriff of , and from issuing or proceeding upon any other warrant to the sheriff of the said countj', directing him to summon a jury for the purpose of settling, and from taking any other proceedings to assess, the amount of compensation to be paid to the Pit for the purchase of his freehold lands and hereditaments comprised in the notice to treat, dated &c., in the (bill) mentioned; and from taking any other proceedings for the purpose of obtaining possession of the same lands and hereditaments or any part thereof; and to restrain 144 INJUNCTIONS. [part II. the Defts, their servants &c., in like manner from entering upon or taking possession of the Flf s said freehold lands and heredita- ments or any part thereof on the footing of the said notice. ^ Defts . to pay Pit's costs of the motion. — Lamb v. North London Sy.,' i Ch. 522. For declaration that a railway company were entitled under their con- tract with the land-owner to t^ke. his land for the purpose of diverting a footpath, although their compulsory powers had expired; and order for payment of the purchase-money with Pit's costs of suit, see Rangeley v. Midland Ry., 3 Ch. 306. 2. Railway Company enjoined from continuing in Possession or entering on Land. Let an injunction be a^^arded against the Defts, the L. V. Ky. Co., to restrain the Defts, their contractor, servants &c., froni con- tinuing in possession of the piece of land thirdly described in the indenture of lease in the Pit's bill mentioned, and upon which the Defts have entered, or any part thereof; and from entering upon, taking, or using the said piece of land, or any part thereof, without the consent of the Pits first had and obtained ; until &c. 3. Railway Company declared hound to take the whole of Two Houses, Gardens, and Premises — Injunction tigainst tak- ing less. Declare that the Defts, the W. E., &c. Ey. Co., are bound to purchase the whole of B. lodge and gardens, and the whole of the premises in the occupation of M., in the pleadings mentioned ; And Let a perpetual injunction be awarded to restrain the Defts and their agents from summoning a jury or taking any proceedings to acquire a title to any smaller portions of the property. — Defts to pay the costs of suit, to be taxed. Pit to be at liberty to apply to compel performance of the order, or otherwise as Mvised. — Cole V. West Mid of London, t&c. My., 27 Beav. 242; and see -ffJw^' V. Wycombe Jiy.,28 Beav. 104 ; L. Grosvenor v. Hampstead, rged, is explained by the circumstance that production was ordered in order to proceed with taxation, while the cash account showed a balance due from the solicitor to the client. But even when he has been discharged he will not be allowed, by with- holding papers on which he claims a lien, to impede the course of the Court; e. g., the drawing up or entry of an order: Simmonds v. G. E. Ry. Co., 3 Ch. 797; Clifford v. TurriU, 2 D. & S. 1. — or the prosecution of appeal by new solicitor: Wehster v. Le Hunt, 9 W. K. 804. — or the management by the receiver of estates under administration by the Court: Belaney v. Ffrench, 8 Ch. 918; and see Re Leah, 8 Jur. N. S. 387 (L. J.). After the solicitor has been discharged and the business transferred to other solicitors, he is entitled to retain as his own property letters addressed to him by his client, and copies of letters by him to the client: Ee Wheat- crofi, 6 Ch. D. 97. (A) Where the solicitor has discharged himself, he may be ordered to deliver up papers to the new solicitors, on their undertaking to hold them without prejudice to his lien, and to return them undefaced, and to allow the solicitor access to them for the purpose of his action for costs: Robins V. Qoldingham, 13 Eq. 440; and see Heslop v. Metcalfe, 8 Sim. 622, 3 My & Cr. 183; Colegrave v. Manley, T. & R. 400; Re Smith, 4 Beav. 309. And the like order was made where the solicitor in a pauper suit was discharged by the Court for delay in prosecuting the suit : Hannaford v. H., 19 W. R. 429. The order was made without costs, where the client refused to pay the bill of the solicitor who had discharged himself: Walker v. BearUands, 15 W. R. 168. Prima facie an order to change solicitors is a discharge by the client: Webster v. Le Hunt, 9 W. R. 804. In the following cases the solicitor will be considered to have discharged himself: — Bankruptcy of himself or firm : Re Moss, 2 Eq. 345. Arrest and detention in custody: Re Williams, 3 D. F. & J. 104, 28 Beav. 465 (though not so in the case merely of embarrassed cir- cumstances: Re Smith, 9 W. R. 396). Dissolution of partnership: Rawlinson v. Moss, 7 Jur. N. S. 1053; Griffiths V. ., 7 D. M. & G. 25, 3 Drew. 17. On his application after attaining twenty-one, the record may be altered by striking out his name as Pit, and (on the application of the remaining Pits) by inserting his name as a Deft in all future proceedings : see Bick- nell V. B., 32 Beav. 381; Rowlings v. Pearson, sup., Forms 11, 12, p. 393. If more than one suit has been instituted for the same purpose on be- half of an infant, an inquiry which of such suits is most for the infant's benefit will, before decree, be directed: see Sullivan y. S., 2 Mer. 40; Mortimer v. West, 1 Swa. 358. And generally the suit in which the mother or a relative is a next friend will be preferred to that of a stranger, and allowed to proceed while the other is stayed: Harris v. Lightfoot, 10 W. R. 31 ; Virtue v. Miller, 19 W. R. 396 INFANTS. [PAET III. 406; Stani'and v. ., 9 Eq. 468. An infant may consent to the ex- ercise by the trustees of her marriage settlement of a power, with consent of her husband and self, of varying the investments: Re Cardross, 7 Ch. D. 728. A post-nuptial settlement, comprising other property, and settling it in a manner different, is no ratification of an infant's ante-nuptial agree- ment: Trowell v. Shenton, 8 Ch. D. 318. The transfer of shares into the name of an infant though not void, is voidable at the option both of the infant and of the company: Symons's Case, 5 Ch. 298 ; Caslello's Case, 8 Eq. 504; and see Lumsden's Case, 4 Ch. 31. An infant transferee of shares may if he chooses repudiate the shares either during minority or after twenty-one, but if he does not repudiate he remains liable, and must pay calls like any other shareholder : Lind- ley, 83, 1388; and see Pollock, Contracts, 36, 44; and similarly the com- pany will be bound if it has with knowledge allowed the infant's name to remain on the register: Parsons's Case, 8 Eq. 656; Mitchell's Case, 9 Eq. 363; or allowed the infant to transfer shares: Gooch's Case, 8 Ch. 266. If, however, there has been a winding-up order before the infant trans- feree comes of age, then some distinct act must be shown on his part after attaining twenty-one, and after notice of his liability, to show acquiescence and confirmation, and thereby make himself liable as a con- tributory: Wilson's Case, 8 Eq. 240; Lumsden's Case, 4 Ch. 31; Hart's Case, 6 Eq. 512; Delmar's Case, 17 W. R. 21. But in this case also, acquiescence alone may be of such a nature, or for so long a period after full notice of liability by applications for calls, as to bind him, see Mitchell's Case, 9 Eq. 363; Ehbett's Case, 5 Ch. 302. And see Buckley, 37, 70, 118; Simpson, Infants, 65, 66. An infant as a general rule cannot be made banki-upt, but if he has fraudulently asserted that he was of full age, and has thereby induced persons to give him credit, or by filing a liquidation petition has clearly held himself out as an adult trader, he may be adjudicated bankrupt: Exp. Lynch, 2 Ch. D. 227; Maclean v. Dummelt, 22 L. T. N. S. 710; and the adjudication against him will not be superseded: Exp. Watson, 16 Ves. 265; Lindley, 82; Robson, 96, 97. 404 INFANTS. [PAET III. Section IV. — Guardianship, Maintenance, and Education. I. — ORDERS FOR APPOINTMENT OF GtTARDIAN WITH OR WITHOUT MAINTENANCE. 1. Appointment of Q-uardian of Infant s Person. Upon the application of &c. and the Judge having approved of B. of &c. as a proper person to be appointed guardian of the person of A. the infant, doth hereby appoint the said B. guardian of the per- son of (the Pit or Deft) A., the infant, during his minority, or untU further order. 2. Quasi Guardian of Person. Appoint B. of &e. in the nature of a guardian \or to act as the guardian] of the person of A. , the infant, and to have the care of his maintenance and education during his minority, or untU further order. — See Exp. England, 1 Euss. & M. 499. For order for appointment of guardian of person and estate of a person of unsound mind not so found, with inquiry as to past and future main- tenance, see Vane v. V., M. R., 2 Ch. D. 124. 3. Guardian of Person and Maintenance. Appoint B., of &c., guardian of the person of A., the infant, during his minority, or until further order ; And Let the sum of £ a year be allowed for the maintenance and education of the said infant for the time past, from the day of , the time of the death of C, his father, and for the time to come, during his minority ; and be paid by to the said B., his guardian, during his minority, or until further order, by equal half-yearly payments of £ • each, on the day of , and the day of , in each year, the first of such payments to be made on the day of , out of the dividends from time to time to accrue due on the £ Cons. £3 per cent Anns in Court, &c. [or by the receiver, appointed in this cause, out of the rents and profits of the estates of the said A., the infant ; And Let such payments be allowed the said receiver from time to time in passing his accounts]. 4. Guardian of Person and Estate — Maintenance. Upon the application of &c. ; And the Judge having approved of B., of &c., as a proper person to be appointed guardian of the per- CH. XVIII. S. IV.] GUARDIANSHIP, MAINTENANCE, ETC. 405 son and estate of A., the infant ; And the said B. having given security pursuant to the said order by entering into a recognizance, with his sureties, dated &c., which has been approved by the Judge and duly enrolled, The Judge doth hereby appoint the said B. guardian of the person and estate of the said A., the infant, during his minority, or until further order ; And Let the sum of £ a year be allowed for the maintenance and education of the said in- fant, from the day of , and for the time to come, during his minority, or until further order ; and be retained by the said guardian out of the rents and profits of the said infant's estate, at &c. 5. Grua/rdian of Estate, and to aceount annually — Maintenance. Upon the application &c. \^Recital as in Form 4, sm^.]. Let the said L. be appointed guardian of the estates of the said infant ; And Let the said L. be at liberty to pay to M., the guardian of the person of the said infant, the sum of £ per annum for the main- tenance and education of the said infant, as from the day of , and for the time to come during his minority, or until further order, out of the rents and profits of the said estates, by quarterly payments on &c. ; And thereout also pay the sum of £ for the (ascertained) costs of the said infant of this application ; and be allowed such payments in passing his accounts ; And Let the said L. on the day of , and the same day in every succeeding year, leave at the Chambers of the Judge his annual accounts as such guardian, and within fourteen days after the date of the Chief Clerk's certificate of the allowance of each account, or within such other time as may be fixed in such certificate, pay into Court to the same credit the balance that shall be thereby certified to be due from him on such account, or such part thereof as shall be certified to be proper to be so paid. — Direction to invest. 6. Guardian of Person and Estate without Security on under- taking to account when required — Maintenance. Upon the application- of &e., And the applicant's costs of this application having been assessed at £ , and P. by her solicitor undertaking to account for all moneys to be received by her when required so to do, the Judge doth hereby appoint the said P., with- out giving security, guardian of the person and estate of the infant M., during his minority, or until further order; And Let the said £ , and also the sum of £ per annum for the maintenance and 406 INFANTS. [PABT III. education of the said infant as from the day of , and dar- ing his minority, be retained by the said P. out of the infant's share in (the income of) the real and personal estate to which he is entitled under the will of his father J. P., or until further order. 7. Removal of Guardian for Misconduct. Let the Deft be removed from being a (trustee of the will of — the testator) and from being the guardian of the infant Pits. 8. New Guardian — Old to account though Security not given as ordered. Directions for new guardian of infant's person and estate, and maintenance [Form 4, sup."] ; "And Let an account be taken of what the said B. {former guardian) has received of the rents and profits of the said infant's real estates, and of his personal estate, and of what he has properly paid and laid out for the maintenance and education of the said infant, or otherwise for his benefit, and what, if anything, ought to be allowed in respect of the said infant's past maintenance and education. 9. Guardian of Estate discharged — New Guardian — Account of Rents. And W., the guardian of the Petr G., the infant, by his counsel submitting to be discharged. Let the said W. be discharged from being such guardian accordingly ; And Let a proper person (on his giving security) be appointed the guardian of the person and estate of the said infant during his minority in the place of the said W. , to act jointly with P. {continuing guardian) in the guardian- ship of the said infant ; And Let the said P. be continued as the guardian of the said infant during his minority, or until farther order, and act solely in the guardianship of the said infant until the appointment of the guardian hereby directed to be appointed in the place of the said W. ; And Let an account be taken of the rents and profits of the estates devised to or otherwise vested in the said infant, possessed or received by the said W. and P., or either of them since their appointment as guardians of the (person and) estate of the said infant, or by any other &c., and of the application of such rents and profits, and the amounts paid by them or either of them, for or towards the maintenance, clothing, and education of the said infant." — Direction to allow to the guardians in taking CH. Xnil. S. IV.] GUARDIANSHIP, MAINTENANCE, ETC. 407 the account their reasonable costs, charges, and expenses properly incurred relating to the guardianship. — Adjourn &c. 10. Guardian appointed to consent to Marriage. Let B. be appointed guardian of the person of A., the infant, for the purpose of giving a legal consent to her marriage. And see Re Woolscomie, 1 Madd. 213. NOTES. JURISDICTION INFANT WARD. By the Jud. Act, 1873, s. 34 (3), the wardship of infants and the care of infants' estates — a jurisdiction which has been from the earliest times exercised by the Coui-t of Chancery representing in the person of the Lord Chancellor the authority of the sovereign as parens patricB — is now assigned exclusively to the Chancery Division of the High Court of Justice. This jurisdiction is not usually exercised unless the infant has property which can be applied for his use and maintenance, or protected and secured for his benefit: Wellesley v. D. Beaufort, 2 Russ. 21; Clayton \. Clarke, 3 D. F. & J. 682; but it is not absolutely limited to cases in which there is property of the infant to be dealt with: Ke Spence, 2 Ph. 247; Be Fynn, 2 Dr. & S. 48L A suit relating to the estate or person of an infant, and for his benefit, has the effect of making him (whether Pit or Deft) a ward of Court: Gynn v. Gilhard, 1 Dr. & S. 356; Marq. Bute's Case, 9 H. L. C. 440; Pendleton v. Mackray, 2 Dick. 736. Accordingly to give the Court jurisdiction over an infant, e. g. to pre- vent his contracting an improper marriage, the course is frequently taken of settling a small sum upon him and then commencing an action to administer the trusts of the settlement, in which action an injunction may be at once obtained: see Dawson v. Thompson, 12 L. T. N. S. 178. An infant may, however, be constituted a ward of Court by an order for maintenance upon petition or summons without suit: Re Graham, 10 Eq. 530. APPLICATION AND FORM OF ORDER. Applications as to the guardianship of infants are now made by sum- mons in Chambers. If no action or matter be pending, a summons is taken out in the name of the infant by a next friend pro hac vice, and is entitled in the matter of the infant, and has the effect of making the infant a ward of Court: Marq. Bute's Case, 9 H. L. C. 440. Directions for the appointment of a guardian and for maintenance, including directions as to education, &c., are no longer inserted in the decree, but application is made in Chambers for the purpose, and it is not necessary to give liberty to so apply. 408 INFANTS. [PAET 10. GUAKDIAN, WHO MAY BE APPOINTED. A married wonian is not a proper person to be appointed as sole guardian; Re Kaye, 1 Ch. 387; and if a female guardian appointed by the Court (though the mother of the infant) marries, her appointment ceases, and there must be a reference to ascertain whether it is for the benefit of the infant to continue her as guardian, though she will be at liberty to propose herself, and may be reappointed on giving recognizances: Re Gornall, 1 Beav. 347 ; Jones v. Powell, 9 Beav. 345; Anon., 8 Sim. 346. If no guardian has been appointed by the father, or if by reason of the invalidity of the marriage the appointment is ineffectual, the mother is entitled to the guardianship of her children: Re Moore, 11 Ir. C. L. 1; Re Darcys, lb. 298. The solicitor of any person exercising a control over the infant's estate ought not to be appointed guardian of his person: Re Johnstone, 2 J. & La T. 222. Where more than one guardian is appointed by the Court the ofiBce does not — as in the case of testamentary guardians, see Eyre v. Countess of Shaftesbury, 2 P. Wms. 103 — survive: Bradshaw v. B., 1 Huss. 528; though the survivors might have been appointed without a reference: Hall V. Jones, 2 Sim. 41. If the father is out of the jurisdiction and is unable to maintain his children, see Exp. England, 1 Kuss. & M. 499 ; or if there be a testamen- tary guardian who declines to act, a quasi guardian maybe appointed: O'Keefe v. Casey, 1 Sch. & Lef . 106. If, however, the testamentary guardian has acted, he cannot be removed, without suit: O'Keefe v. Casey, sup. ; Re McCullochs, Drury, 276. Notwithstanding the appointment by deed by an infant aged fourteen, and entitled to real estate, of a guardian for himself, the Court has ap- pointed a guardian: see Cohamw. C, 13 Sim. 639; Curtis v. Rippon, 4 Madd. 462. FOREIGN GUARDIAN. The authority of a guardian who has been appointed by a foreign Court of competent jurisdiction will not be interfered with : Nugent v. Vetzera, 2 Eq. 704, inf. Sect. VI. (i.), Form 8; and the Court will give effect in all respects to the orders of the Courts of a foreign country in respect of an infant brought to this country, so far as is consistent with the law of England: Di Savini v. Lousada, 18 W. R. 425. And see Re Dawson, 3 D. M. & G. 764, 2 Sm, & G. 199, where English guardians were appointed for an infant who had been clandestinely re- moved from America, where she had real estate, in breach of an injunc- tion granted by an American Court to restrain her removal. TESTAMENTARY GUARDIAN. It being enacted by 1 "V. c. 26, s. 7, that no will made by any person under twenty-one shall be valid, an infant can no longer exercise the power CH. XVIII. S. IV.] GUABDIANSHIP, MAINTENANCE, ETC. 409 given by 12 Car. II. c. 24, without distinction of age, of appointing a guardian to his children by will, though he may still do so by deed. Control will be exercised over a testamentary guardian if his conduct be improper: see Talbot v. E. Shrewsbury, 4 My. & Cr. 673; D. Beaufort v. Berty, 1 P. Wms. 704. And though such a guardian is rarely if ever removed, see 2 Lead. Cas. Eq. 693, orders may be made regulating his conduct: Roach v. Oar- van, 1 Ves. 160; Jones v. Powell, 9 Beav. 345. The marriage of a female testamentary guardian does not of itself de- termine her office, but inquiries should, it seems, be directed whether it will be for the benefit of the infants to continue to reside with her not- withstanding her second marriage: Jones v. Powell, sup. ; and see 2 Lead. Cas. Eq. 693. And, without removing the testamentary guardians from their office, the care and religious education of the infants may be intrusted to the mother or other persons appointed for that purpose: see Andrews v. Salt, 8 Ch. 622; Re Newbery, 1 Eq. 431, 1 Ch. 263; Smith v. Bale, 2 Dick. 631; Ingham v. Bickerdike, 6 Madd. 275. The father may authorize the survivor of the testamentary guardians whom he has appointed to nominate another in the place of the one who has died: Re Parnell, L. R. 2 P. & M. 379. Effect will be given to the recommendation of a father, who has by will appointed a guardian, that his children should be placed under the care of two other persons, subject to the guardian's general superintend- ence and control: Knott v. Cottee, 2 Ph. 192; Hartleys. Smith, 10 W. R. 750. 763. The nomination by a testator of a " guardian of the estate of my son during his minority," does not give the person so appointed the powers of a testamentary guardian so as to displace the mother from the care and custody of the infant: Re Norbury, I. R. 9 Eq. 134. The appointment by the father of a testamentary guardian does not affect the right of the Court to appoint a receiver of the infant's estate: Gardner v. BUme, 1 Hare, 381. n. — OEDEES RELATING TO MAINTENANCE AND EDUCATION. 1. Order for Increase of Maintenance. Let the sum of £ a year be allowed in addition to the sum of £ a year, allowed by the order dated &c., making together the sum of £ a year, for the maintenance and education of A., the infant, such increased allowance to commence as from &c. , and be paid out of the income of the trust estate in the said order dated &c., mentioned, to H., the father of the said infant, during his minority, or until further order. 410 INFANTS. [part IIT. 2. Advance for Maintenance, out of Income of Contingent Share, secured hy Policy. " And the Judge being of opinion that it is fit and proper and for the benefit of the infant E. that the sum of £225 should be allowed for her past maintenance and education from &c. to &c., and that the annual sum of £150 should be allowed for her future maintenance &c. ; And it appearing that the only fortune of the said infant E. consists of the share of and in the real and residuary personal estate of the testatiix K. to which the said infant is pre- sumptively entitled, and will become absolutely entitled under the said will on her attaining the age of twenty-one years or being mar- ried, and that the income arising and to arise from such share is not in the mean time applicable for the maintenance and education of the said infant ; and it having been proposed and submitted to the Judge by or on behalf of the said A., the father of the said infant, that &e., and the Judge having approved of the said pro- posal, and it appearing that the policy of assurance hereinafter mentioned has been effected with the M. Societj- in the names of N. and J., No. , dated &c., for the sum of £4,000 on the life of the said infant E., Let the said policy of assurance be deposited with the Clerk of Records and Writs ; And Let the same be held as a security for the purpose of recouping and repaying to the estate of the testatrix any loss in the event of the death of the said E. without having attained the age of twentj'-one years or marry- ing, the amounts which shall have been paid or advanced out of the share of the annual income of the real and residuary personal estate of the testatrix to which the said infant is so presumptively entitled, for the maintenance and education of the said infant, and for pro- curing and keeping on foot the said policy, and for the costs of obtaining this order, and also such an amount or sum of money as will be equivalent to the amounts of money or funds and securities which would have arisen from such part of the said annual income as shall be so paid and applied, in case the same instead of having been so paid and applied had been accumulated at compound in- terest by the investment thereof, and all the resulting income thereof in manner directed by the said will ; And Let notice of such deposit and of the purpose for which the said policy has been so eflected and deposited be given to the said M. Society ; And Let upon such deposit being made and such notice being given the sum of £225 be allowed for the maintenance and education of the said infant from &c. to &c., and be paid by the said N'. and J. as such trustees as aforesaid to the said A., t^e father of the said infant, out of the share of the annual income which has arisen from the CH. XVm. S. IT.] GUARDIANSHIP, MAINTENANCE, ETC. 411 said real and residuarj' personal estate to which the said infant is presumptively entitled under the said will on her attaining her age of twenty-one years or on marriage." — Allow the annual sum of £150 for future maintenance to be paid in the same manner. — Trustees to pay the costs and policy premium out of the same funds. — Future premiums to be paid out of dividends on the fund in Court, to the actuary or other principal oflBcer for the time being of the London branch office of the M. Societj-, to be verified by affidavit ; such payments to be considered as paj'ments out of the share of the annual income which shall arise from the said real and residuary personal estate to which the said infant is so presumptively enti- tled as aforesaid. — JRe ArpucMe, V.-C. K., 14 W. K. 535; see also De Witte v. J^alin, 14 Eq. 251, 3. Maintenance charged on Infantas Meal Estate, Let the Defts {the executors and trustees) out of any funds in their hands pay to the Deft T. on her separate receipt the sum of £ for the past maintenance of the Pit up to &c., and the yearly- sum of £ for his future maintenance from the last-mentioned day ; and if such funds shall be insufficient, Declare that what the Defts {the executors and trustees) or either of them shall have paid or shall pay in respect of such past or future maintenance ought to be a charge upon the estate and interest of the Pit in the real and per- sonal estate of the testator given and devised to him by the testa- tor's vi\\\. — Fmtiman v. F., V.-C. E., 13 Sim. 172. See also Ee AUen, 8 Ch, 417, n. ; Be Howarth, 8 Ch. 415. 4. Infant having come of Age, Guardian of Estate to pass his Accounts and pay over Balances. Upon the application of D., late an infant, but now of full age &c.. Let the £ Cons. £3 per cent Anns in Court to the credit of &c. be tiansferred to the applicant D. ; And Let M. S. {guardian) forthwith leave in the Chambers of the Judge his first and final account as such guardian, and, within such time as shall be fixed by the Chief Clerk for the allowance of such account, pay the bal- ance which shall be certified to be due from him to the said D. ; And Let the said M. S. on or before &c. transfer and pay to the said D. the several funds belonging to the said D. arising from the estate of the late B., deceased, the grandfather of the said D., and of I. B. deceased, the aunt of the said D., and any dividends ac- crued or to accrue thereon, the amount to be verified by affidavit ; And Let upon his passing his account and transferring and paying 412 INFANTS. [pari III. over such balance and funds as aforesaid, the recognizance dated &c. entered into by the said M. S. be vacated ; And Let the costs of the said M. S. of preparing arid passing his account as such guardian be allowed him as a disbursement in such account. 6. Infant placed as a Pupil, or at School. Let the Pit H. be allowed to enter and remain as a pupil in the ofBces of Messrs. C, accountants of &c., until the expiration of one year from &c., or until arrangements be made for his entering a suitable mercantile house ; And Let the name of the Pit A. be entered at the house of T,, one of the house masters at M college, as an intended boarder. For orders under the old practice directing a scheme for the education and bringing-up of infants according to the meaning and intention of the testator as expressed in his -will, regard being had to their rank and ex- pectations in life, and to all the circumstances of the case, see Knott v. Cottee, 1845, 2 Ph. 192 ; Simpson, Infants, 237, 238. 6. Infant to be articled or apprenticed. Let a., the infant, be placed out as an articled clerk [or appren- tice] with B., of &c., for the term of years, for the purpose of being instructed in the profession [or trade, or business, or art] of &c- : And Let £ be allowed as a proper premium to be paid to the said B. on that occasion ; [J^" so, and £ for the neces- sary outfit of the said infant] ; And the Judge having approved of the articles of clerkship [or indenture of apprenticeship] marked A, intended to be made between &c., of &c., as proper articles of clerkship [or a proper indenture] to be executed for the purpose aforesaid, as appears by the memorandum of approval signed by the Chief Clerk in the margin of the engrossment thereof; Let upon the execution of such articles [or indenture] by such parties thereto as the Judge shall direct, D. and E., the trustees of the will of &c. [or the receiver appointed in this cause], out of the rents and profits of the estates of the said infant, pay the said sum of £ to the said B. for such premium as aforesaid, Jf so, and the said sum of £ to C, the guardian of the said infant, for such out- fit, the said C, by his solicitor, undertaking to apply the same accordingly ; and £ for the costs of the said infant of this application, If so, and retain the sum of £ for their own costs in respect thereof; Or if out of fund in Court; And Let, upon the execution of such articles or indenture by such parties thereto as the Judge shall direct, being certified, or by X., Y., and Z. CH. XTIII. S. IV.] GUARDIANSHIP, MAINTENANCE, ETC. 413 (naminff them) , such execution to be verified by affidavit, so much of £ Cons. £3 per cent Anns in Court &c. as with £ cash in Court &c. will raise £ , be sold &c. ; And Let out of the money to arise by the said sale and the said cash, or out of £ cash in Court to the credit of &c. the said sum of £ &c. be paid to &c. — Direction to raise and pay costs, to be taxed or the amount thereof stated, to the solicitors. NOTES. MAINTENANCE — FATHER'S ABILITY. As a general rule maintenance ■will not be given out of the infants' property during the father's life if he is able to maintain them: Jackson V. X, PawknerY. Watts, 1 Atk. 515, 408; Butler v. B., Barley v. D., 3 Atk. 60, 399; their maintenance being in law due from him: Andrews V. Partington, 2 Cox, 223; even though the gift contains a provision for maintenance: Hughes v. H., 1 Bro. C. C. 387; Lucknow v. Brown, 12 Jur. 1017; — unless there is an express gift to the father for that purpose : Hughes V. H, sup.; Hawkins v. Watts, 7 Sim. 199; Leach v. X., 13 Sim. 304; — or a trust for the maintenance of the children (as distinguished from a mere power: see Newton v. Curzon, 16 L. T. N. S. 696) contained in an ante-nuptial marriage settlement, and therefore based upon contract ; in which case the father is considered as a purchaser of so much of the fund as would be properly applicable for maintenance, and entitled to an allow- ance for past and future maintenance without reference to his ability — as distinguished from a purely voluntary settlement: Re Kerrison's Trusts, 12 Eq. 422; Ransome v. Burgess, 3 Eq. 773; Mundy v. E. Howe, 4 Bro. C. C. 223; Thompson v. Griffin, Cr. & Ph. 317; and see Hoste v. Pratt, 3 Ves. 730; Brophy v. Bellamy, 8 Ch. 798, where the discretion of trustees under a will to apply the income of infants' shares towards their main- tenance was not made conditional upon the ability of the father to main- tain them. If the father is not of ability maintenance will be allowed, though there be no express provision in the gift for that purpose : Erral v. Barlow, 14 Ves. 202; Cavendish v. Mercer, Fendall v. Nash, 5 Ves. 195, n., 7, n.; — and all the dividends were paid to him without inquiry where he was in very poor circumstances : Payne v. Low, 1 Russ. & M. 223. In allowing maintenance where the father is not of sufficient ability or is dead, the Court has refused to take into consideration the mother's ability to maintain them, even where she had separate estate: Billingsley V. C'ritehett, 1 Bro. C. C. 268; Haley v. Bannister, 4 Madd. 275; Lanoy v. Duchess of Athol, 2 Atk. 447; Exp. L. Petre, 7 Yea. 403; Douglas v. Andrews, 12 Beav. 310. ■ The father's ability is to be estimated not merely with regard to his own circumstances, but to the state of his family, the infants' expectations, and the necessity of an education suitable to such expectations : see Buck- worth V. B., 1 Cox, 80 ; and in many cases maintenance has been allowed 414 INFANTS. [part HI. even where the father had ample means : see Jervoise v. Silk, G. Coop. 52 ; Haley v. Bannister, 4 Madd. 275 ; Exp. Williams, 2 Coll. 740. And the rule is that a liberal allowance for the maintenance of an in- fant will be directed, having regard to the circumstances of his family, especially the bringing up of his brothers and sisters in such situations as |o reflect credit upon him: see Wellesleyv. D. Beaufort, 2 Russ. 28; Harvey v. H., 2 P. Wms. 21; Lanoy v. Duchess of Athol, 2 Atk. 447; Petre V. P., 3 Atk. 511; Tweddell v. T., T. & B. 13. The sum allowed for the maintenance of a female infant to the mother or other person who has undertaken the charge will be measured, not by the actual cost of the infant's maintenance, but by the expenses of the establishment which has been kept up for her benefit: see Brown v. Smith, 10 Ch. D. 377. And in Allen v. Coster, 1 Beav. 202, the infant's maintenance was in- creased on account of hie parents' indigency. This principle has been extended to the case of an illegitimate brother of the infant, born of the same parents, but left unprovided for: Brad- shawv.B.,lJ.&W. 647. Formerly, even though the father was not of ability, maintenance could not be allowed for the time past: Hughes v. //., 1 Bro. C. C. 387; Hill V. Chapman, 2 Bro. C. C. 231; Andrews v. Partington, 3 Bro. C. C. 60. But it may now be allowed to a parent, if not of ability, for time past as well as to come: Beeves y. Brymer, Sherwood v. Smith, 6 Ves. 425, 454; especially where the father has incurred debts and sold property for the purpose of maintaining his child: Parsons v. Peters, 11 Jur. N.S. 150. A release by an infant with full knowledge after coming of age to the trustees who had, notwithstanding a trust for accumulation, allowed the father, on the ground of his want of means, to apply the dividends of her share for her maintenance, was held to have discharged the trustees from all liability in respect of her share: Aveline v. Melhuish, 2 D. J. & S. 288. A mother of an orphan child has, after its death, been allowed sums expended for past maintenance: Bruin v. Knott, 1 Ph. 572, 12 Sim. 459. But advances to an infant by his mother without evidence of any in- tention to claim repayment were held not to constitute a debt due to her out of his estate: Re Cottrell, 12 Eq. 566. Out of an allowance for the maintenance and education of an infant entitled to large property the residue, after providing the amount certified to be necessary for that purpose, has been ordered to be paid to the mother: Heysham v. H., 1 Cox, 179. And see Re Macfarlane, 2 J. & H. 673; Re Burke, Re Tayler, 2 D. F. & J. 124, 125, that the property to be dealt with must, for the exercise of such jurisdiction, be in Court, or be under administration in a suit. In order to provide maintenance for infants who are only entitled con- tingently upon attaining twenty-one, where there is nothing in the instru- ment to warrant maintenance, the course has been taken of eifecting a policy of insurance, so as, in the event of the infant dying under twenty-one, to recoup the amount paid for maintenance and for the pre- miums upon the policy: see Re Arbuckle, 14 W. R. 535, sup. Form 2, pp. 410, 411; and see Re Robinson, 16 W. R. 1106. The same course has been followed with respect to the reversionary CH. XTIII. S. IV.J GUARDIANSHIP, MAINTENANCE, ETC. 415 interests (some of ■which were contingent on attaining twenty-one) of infants expectant on the life interest of their father, who was unable to maintain them: De Wilte v. Palin, 14 Eq. 251. And on application by an infant for maintenance the expenses of his past maintenance and the costs of the application have been charged with- out suit on the corpus of his freehold estate : Re Howarth, 8 Ch. 415. Maintenance will be allowed in the form most beneficial to the infant, e. g. by payment of interest upon a legacy contingent upon his attain- ing twenty-one, though the direct gift of maintenance did not extend beyond the infant's age of fifteen: Martin v. M., 1 Eq. 369 (following Chambers v. Goldwin, 11 Ves. 1, and disapproving Kime Welfiu, 3 Sim. 533) ; or where the infant is entitled to maintenance out of two funds by ordering it out of that which is most for his benefit: Lucas v. King, 11 W. R. 818. In cases of necessity, especially where the legacy or trust fund is small, and the income insufficient, small portions of the capital have been applied, and trustees will be allowed sums so expended for the maintenance and education or for the advancement in life of infant children: see Exp., Chambers, 1 Russ. & M. 577; Exp. England, lb. 499; Noltley v. Palmer, 11 Jur. N. S. 968; Re Tibbs, 17 W. R. 304; Prince v. Nine, 26 Beav. 634; Worthington v. M'Craer, 23 Beav. 81. So also where an executor has advanced for the maintenance of children sums exceeding their presumptive shares, which were small, he has been allowed in adminstration the balance after payment of the costs of suit: Bobison v. Killey, 30 Beav. 520. In addition to the sum directed by a testator to be allowed for main- tenance the Court has ordered payment out of the rents of the settled estate of such a sum as will keep up the principal mansion as a residence for the minor so as to carry out the testator's clearly expressed intention : Griggs V. Gibson (2), 14 W. R. 538; and allowed various sums for refurnishing, decorating, and repairs: S. C. 21 W. R. 818. A discretion given to trustees for the application of the income of an estate for maintenance will not in the absence of a mala fide exercise be controlled by the Court: Gisborne v. G., 23 W. R. 410. Guardians and committees having an allowance for maintenance are not accountable for the expenditure if it appears that the infants have been maintained, educated, and supported: flora v. //., 33 Beav. 89; Jodrelly. J., 14 Beav. 397. Orders may be made for the maintenance of infants out of the juris- diction, see Stephens v. James, 1 M. & K. 633 ; Wyndham v. L. Ennismore, 1 Keen, 468; and where both the infant and the father resided out of the jurisdiction, the order, upon appointment by the father of au attorney to receive the maintenance, was for payment of the dividends of the fund to such attorney half-yearly upon production to the Ace. Gen. of an affidavit that he had duly applied in the maintenance and education of the infant all moneys received by him on that account up to the time of making such affidavits respectively : De Weever v. Rochporl, fi Beav. 391. 416 INFANTS. [PABT HI. Section V. — Jueisdiction over Infant's Propeett. I. MANAGEMENT OF PKOPEKTT. 1. Cruardian of Estate — Proceeds of Timber to he paid into Court — Accounts. Upon the application of &o., infants, by W. J., their father and next friend. — Directions for appointment of W.' J. guardian of the estate of the said infants and for maintenance out of income [swp. Form 4, p. 404]. — And Let the said W. J. within fourteen days after receipt of the proceeds of sale of any timber on the infant's estate already cut pay the same (the amount and time of receipt to be verified by aflSdavit) into Court to the credit of this matter &c. ; And Let the said W. J., as such guardian, on or be- fore the &c. — Directions for passing accounts and paying in bal- ances [sup. Form 5, p. 405]. 2. Gruardian to retain Current Expenses out of Timber Money^ and to let the Sporting annually. " Let S. as the guardian of the Pit, notwithstanding the order dated &c. (which directs that the money to arise by the sale of the timber and coppice as in the said order mentioned should be paid into Court), be at liberty to retain out of the said money the sura of £ for payment of his current expenses as guardian ; And Let him account for the said sum of £ on passing his accounts as such guardian." — Direction for investment in Cons. £3 per cent Anns ; ' ' And Let the said guardian be at liberty from time to time to give yearly a letter of license to such of the several tenants of the farms and premises constituting the specifically devised L estates, authorizing them to sport and kill the game on such farms and in the woods belonging to the said L estates respectively at such rents and on such terms as the said guardian in his discre- tion shall think best, but reserving in each case the Plf s right to sport and kill game." 3. Allowance far keeping up Mansion — Further Upon the application &c. Let the sum of £ be allowed for keeping up the family mansion at B Park as a residence for the infant D., from the. day of &c. to &c. ; And Let F., D., CH. XVin. S. v.] JURISDICTION OVER INFANT'S PROPERTY. 417 and p., the present trustees of the -will of the late E. P., be at lib- erty to pay such allowance to M., the guardian of the said infant, out of the rents and profits received or to be received by them of the estates subject to the trusts of the said will, and of which the said infant is now tenant in tail in possession ; And Let the said trustees be also at liberty, in addition to the sum of £ already paid by them, to pay to the said M. as such guardian the further sum of £ out of the said rents and profits in respect of the personal maintenance of the said infant up to &c. ; And Let the said sums be retained and paid by such trustees out of such rents and profits. 4. Order to let Mdnsionrhouse furnished, with Sporting Mights. Let the Defts be at liberty to let to A. from &c. to &e., at the yearly rent of £ payable quarterly, and according to the terms and conditions comprised in the draft lease, being the exhibit marked X in the said affidavit referred to, the messuage or man- sion-house and pleasure grounds called &c., with the coach-houses &c. thereto belonging, and also with two pieces of pasture land called &c., containing together &c., all which said messuage and lands are situate in &c., together also with the two several cottages at &c., late in the occupation of &c., and such rights of Sporting and fishing as in the said draft lease mentioned, and together also with the use of the household goods and furniture, fixtures, articles, and things in and about the said messuage and premises. And the Judge having approved of the said lease intended to be made be- tween the Deft D. and others of the first part and A. of the other part, and which lease and a counterpart thereof are respectively identified by the signature of the Chief Clerk in the margin thereof respectively ; Let the said lessors be at liberty to execute the same upon the said A. executing and delivering the said counterpart thereof. 6. Receiver to pay Interest on Charges and Maintenance — Surplus invested. Direction to appoint receiver; — "And Let the said receiver out of such rents and profits keep down the interest on the two several mortgages &c. ; and thereout also pay to the Deft C. for the past maintenance of the infant Pit from &c. to &c. the sum of £ , and thereout also pay to W. of &c., and the Deft C. the sum of £ per annum for the maintenance and education of the said infant for the time to come during his minority or until further 27 418 INFANTS. [part IH. order, by equal half-yearlj' payments on the day of and the day of in each year, the first of such half-yearly pay- ments to be made on the day of." — Balances to be paid into separate accounts and invested. For declaration that it was for the benefit of the c. q. trustees (some of whom were infants) interested or to become interested under the settle- ment, that Defts the trustees, should be at liberty to raise by mortgage of the property, subject to the trusts of the settlement, a sum not exceed- ing £5,000 for the purpose of removing and rebuilding the mansion-house on the property, and to apply such sum in the expenses of and incidental to such removal and rebuilding, and decree accordingly, see Frith v. Cam- eron, V.-C. M., 12 Eq. 169. 6. Expenditure of Sums in Furniture for Residence, and in replacing Heirlooms. Upon motion by way of appeal &c., — Discharge the orders dated &c. ; And Let the Defts G. and S. {tJie trustees) pay to F. as the husband of B. the mother and guardian of the said M. {infant Pit), and of B. M. {infant Deft) the sum of £ , to be expended by her in furnishing the new south wing of E. Lodge &e., part of the testator's estate and the residence of the said infant Pit and Deft under the order dated &c., and a sum of £ for repapering and redecorating the bed and drawing-rooms in the main part of E.. Lodge, and a sum of £ fOr replacing the kitchen range &c., at the date of the order dated &c., in use at E. Lodge aforesaid ; And upon B., the mother and testamentary guardian of the infant Pit, undertaking with all convenient speed as mentioned &c., after she shall receive the sum of £ , to lay out the said sum of £ in the purchase of carpets in the place of and in substitution for such of the carpets specifically bequeathed by the will of the testator as have been worn out and decayed, and also undertaking to produce to the Defts G. and S., the trustees of the will of the said testator, the usual invoices and vouchers for the carpets so to be purchased ; Let the Defts G. and S., out of the surplus rents and profits of the estates of the said testator, pay to the said B., as such testament- ary guardian, and on her sole receipt, the sum of £ ; And Let the furniture and carpets so to be purchased be subject to the trusts in the said testator's will declared of or concerning the heirlooms thereby specifically bequeathed, and be subject also to the direc- tions in the said will contained respecting the taking and signing of inventories of the heirlooms. CH. XVIII. S. v.] JURISDICTION OVER INFANT'S PROPERTY. 419 7. Confirmation of Contract ly Trustees of an Infant's Estate for the Purchase of Real Property. Upon the application &c., Let the conditional contract dated entered into between the Gr. E. Ry. Co. by their agent D. of the one part, and the Defts G. and S. {trustees of the will) of the other part, for the purchase by the said Defts G. and S. as such trustees of the piece or parcel of land &c., free from incumbrances, but subject to the tenancy of C, together with the appurtenances, at the price of £ be carried into effect ; and a good title to the said piece of land having been shown, and a proper conveyance of the said piece of land to tBe said G. and S. as such trustees as aforesaid having been settled and approved of by the Judge, con- sisting of an indenture marked X and identified by the signature of the Chief Clerk in the margin thereof, and intended to be made between the said company of the one part and the applicants of the other part ; Let, upon the execution thereof by the said com- pany, the applicants be at liberty to pay to the said company the said sum of £ , together with any interest payable thereon out of the residuary personal estate of the said testator, and be allowed the same on passing their accounts. 8. Sale of Infant's Realty purchased out of Personal Estate postponed. Declabe that it is not for the benefit of the infants interested in the estate of M. the testator, that such of the freehold ground rents in the Chief Clerk's certificate mentioned as have in fact been purchased by the Defts out of the personal estate of the said testa- tor should at present be sold, the parties beneficially interested who are sui juris not desiring such sale ; but such ground rents are to be deemed personal estate ; And any of the parties are to be at liberty to apply at Chambers as to the conversion of the same or any part thereof. NOTES. GUARDIAN AND HIS WARD. For the principles upon which a guardian must act with relation to his ward's property — that he must act for the infant's benefit; that he can- not make any profit out of his office; that as a general rule he cannot convert real into personal, or personal into real estate ; and that with re- spect to property of the infant of which he gets possession he stands in the position of trustee for the infant, see Malhew \. Brise, 14 Beav. 345; Sleeman v. WUnon, 13 Eq. 36 ; Simpson, Infants, 323, 326. 420 INFANTS. [PABT IH. And this fiduciary relation extends to and affects purchases by a guar- dian of his ward's estate immediately or soon after his coming of age, agd generally to all transactions between them while the influence still lasts or is recent: see HyllonT. H., 2 Ves. 547; Oldin v. Samborn, 2 Atk. 15; Ayl- mard V. Kearney, 2 Ball & B. 463; Hatch y. H., 9 Ves. 292 ; Story lEq. J,ur. § 317; 1 Lead,. Cas. Eq. p. 169. This rule is extended to third parties, creditors of the guardian, who knew or might have known of the relation between the parties, and claim the benefir of the transaction as creditors of, or through the guardian: Kempson v Ashhee, 10 Ch. 15 ; Makland v. Irving, 15 Sim. 487 ; Maiiand V. Backhouse, 16 Sim. 58. An infant, whether he has been actually in possession or not, may treajt a person wjio enters upon his estate during minority as his bailiff, guarr d|an, or trustee, and make him account on that footing, excluding the operation of the Statute of Limitations : Newlurgh v. Bickerstaffe, 1 Vern. 295; Yallop v. Holworthy, 1 Eq. Ca. Ab. 7; Morgan v. ilf., 1 Atk. 489; Quintan v. Frith, I. R. 2 Eq. 396. The rule applies to the infant's father, but whether to a stranger in all cases, qucere: see Thomas v. T., 2 K. & J. 79; Quintan v. Frilh, I. R. 2 Eq. 396, where the question is discussed, and the fiduciary position stated to attach: 1. Whenever the person entering is the natural guardian of the infapt. 2. When he is so connected by relationship or otherwise as to impose upon him a duty to protect or at least not to prejudice his rights) and 3. When he takes possession with express knowledge or notice of the infant's rights. The account will not be limited to six years before suit: Nanneyv. Williams, 22 Beav. 452; Pellyv. Bascomb, 4 Giff. 390, 13 W. R. 306; but is given from the time the infant's title accrued: Dormer v. Fartescue, 3 Atk. 123 ; or from the entry, and possession may be recovered twenty years after majority: Thomas v. T., 2K. & J. 79. A delay of five months after attaining twenty-one did not prejudice the infant's right: Blomjield v. Eyre, 8 Beav. 250. SALE OF infant's PROPERTY. An infant not being able, from his legal incapacity, to enter into a binding contract for the sale or purchase of property, the Court in general has no authority to sell, or charge his estate except under the statutory powers given, and for certain special purposes (see Dart V. & P. 2, 26, 1187), or in a mortgagee's or creditor's action for payment of the ances- tor's debt, where it is for the infant's benefit to direct a sale: see Field v. Moare, 7 D.M.& G. 691 ; Fisher, Mortgages, 1081, 1090 ; Simpson, Infants, 324, 469. And being unable to sell, an infant's contract of sale cannot be enforced by or against him: Flight v. Bolland, 4 Russ. 298; Ca'»«rt v. Godfrey, 6 Beav. 97, 109; Hargrave v. H., 12 Beav. 408. DEALINGS WITH INFANT'S OR LUNATIC'S ESTATE. As a general rule the Court will not change the nature of an infant's property by directing a conversion of real into personal or of person?^ into CH. XVttl. S. VI.] CUSTODY — EELIGIOUS INSTRUCTION, ETC. 421 real estate, except under particular circumBtances, where it is manifestly for the advantage or the convenience of the infant; and what the Court might do in such a case by its own order, trustees or guardians will be allowed to do : see Inwood v. Twyne, Amb. 417, 2 Eden, 148, and cases there cited; WiUer v. W., Z P. Wms. 100. With respect to laying out an infant's personalty in the purchase of land, the rule of the Court that the conveyance would be directed sO as not to change the nature of the property as between the real and pergonal representatives (see Ware v. Polhitl, 11 Ves. 268, 278; Ashburton y. A., 6 VeS. 6), was based upon the fact that prior to the Wills Act, 1 V. c. 26, infants (females after the age of twelve, males after the age of fourteen) had the power of disposing of their personal estate by will. On this ground, therefore, it being more beneficial for the infant (as distin- guished from a lunatic) that his personal estate should not be converted, the Court effected the change, not to all intents' and purposes, but with this qualification, that if he lived he might take it as real estate, but without prejudice to his right over it during infancy as personal property: see Exp. Phillips, 19 Ves. 122 (efxplainiilg the distinction in this respect between the case of an infant and a lunatic); Exp. Orimstone, Amb. 708; Webb V. L. Shaftesbury, 6 Madd. 100 ; Sergeson v. Sealey, 2 Atk. 413 ; Rook V. Worth, 1 Ves. 461; and see 1 Lead. Cas. Eq. p. 859; 2 Story Eq. Jut. § 1357. In Ashburton v. A., s«p., the land purchased was directed to be conveyed to a trustee in trust for the infant, his executors and administrators, until he should attain twenty-one, and afterwards for him and his heirs. Timber cut down oil the estate of an infant tenant in fee by his guar- dian with the sanction of the court, or in a proper husbandlike manner, becomes personal estate for the purpose of devolution: Dyer v. D., 84 Beav. 504; and see Craig on Trees, 110 (explaining Tullit v. T., Amb. 370, 1 Dick. 322, and Mason v. Goodrich, West, 449) ; Field v. Brown, 27 Beav. 90, where the proceeds of deteriorating timber directed by the Court to be cut down and sold for the benefit of all persons interested were treated as real estate. SEctiON VI. — Custody — Religious Insteuction — Residence Abroad. i. — orders relating to the custody, religious instruction, and RESIDENCE OF INFANTS. 1. GiMody^ Besidence, and Leave to visit. " Let B. {father) by 6 o'clock in the afternoon of this day, deliver E., the infant, to T. {next friend) ; And the said T. (by Lis counsel) undertaking to deliver the said infant to the Petr, L. {wife), at the house of &c., the mother of the said E., Let the said 422 INFANTS. [part III. infant remain in the custody of the said L. until the said infant shall attain the age of seven years, or during such shorter time as this Court shall direct ; And Let the said infant not be removed from without the leave of this Court except for occasional visits to the sea-coast of England, or into the country for the sake of health or change of air, but not to a greater distance than 120 mUes from London." — Father to be at liberty to see the infant at stated periods, and to be informed of her leaving home, and as to her state of health. — Like directions on behalf of the mother as to the elder children remaining with the father. — lie Bartlett, V.-C. K. B. , 2 Col. 661. This order was based upon 2 & 3 V. c. 54, since repealed, but re-enacted and extended by 36 & 37 V. o. 12. 2. Inquiry, what Provision — Guardian — Scheme — Resi- dence — Maintenance — Custody — Father restrained from interfering. " Let an inquiry be made, whether there is a sufficient provision for the maintenance and education of the Petr, the infant, during his minority, independently of any allowance or contribution from his father, and of what nature." — If so, or if any proposal, " for making and securing such provision," be approved — direction to appoint, " some proper person or persons to act in the nature of a guardian or guardians of the said infant's person," during mi- nority, or until further order ; All proper parties to have notice to attend, and leave to propose the guardian or guardians, and scheme for the infant's residence, maintenance, and education, during minority, to be approved — "And in the mean time, or until further order, the said infant is to remain in the care and cus- tody of his mother A., and of his maternal grandmother the Deft E., widow, the said A. and E., and K., the next friend of the said infant, by their counsel undertaking that until the further order of this Court they will duly and properly provide for the care, mainte- nance, and education of the said infant. And Let T. (the father), in the petition named, and his agents, be restrained until such fur- ther order from removing the said infant from his present residence, or changing the present custody of the said infant, or disturbing or interfering with the same in any manner." — Liberty to apply. — Thomas v. Eoberts, V.-C. K. B., 22 May, 1850, 3 Dr. & S. 758 (the Agapemone case). CH. XVIII. S. VI.] CUSTODY — RELIGIOUS INSTRUCTION, ETC. 423 3. Order under the Infant's Custody Act, 1873, for Delivery of Infant to his Mother. Upon the petition of L. {the mother) the wife of H. &c., by C. her next friend, Let the Respondent H. immediately deliver T. the infant in the petition named to the Petr L. ; And Let the said in- fant remain in the custody of the Petr until further order ; And Let the Respondent, and the paternal grandfather and paternal grandmother of the said infant, have access to the said infant at all reasonable times ; An4 Let the Petr be at liberty to apply for a scheme for the maintenance and education of the said infant on his attaining the age of seven years, Respondent to pay to C. the next friend of the Petr the costs of the Petr of this application, to be taxed &c. — Liberty to apply. —^e Taylor, an infant, M. R., 4 Ch. D. 157. 4. Custody of Infants committed to Mother — Guardians — Provision — Father excluded, except at stated Times. On petition of the mother bj- her brother and next friend, and of the infants by the same next friend — "Let M. and J., the infants, remain in the care and custody of the Petr E., their mother." — Appoint Petr E. and F. {next friend) to act in the nature of guar- dians to the infants until further order; " And Let the Petr E. have the charge and superintendence of the education of the said infants, the said Petr E. and the said F., by their counsel, under- taking that, until the further order of this Court, they will duly and properly provide for the care, maintenance, and education of the said infants ; And Let Y. the father of the said infants have access not oftener than once in three months, to see the said infants, at his own expense, in the presence of such person as the said E. may appoint, within one mile of their residence in England, for the time being." — Liberty to applj'. For orders restraining the father, on ground of immoral conduct, from removing or attempting to remove the Pits, his infant children, or any of them, from the care and custody of the sisters of their deceased mother, see Wellesley v. D. Beaufort, 2 Russ, 44. And for persons to be appointed to act as guardians, though the father was living, he being an improper person to have the care of his infant children, S. C, L. C. 9 Nov. 1825, and for directions as to their custody, maintenance, and education, see same orders. For order restraining the infant Pits' father and his agents from taking possession of their persons, and from intermeddling with them, until further order; with inquiry what would be a proper plan for their main- 424 INFANTS. [part III. tenanoe and education, and with whom and under whose care they should remain during their minority or until further order: Shalley t. Westbrooke, cited in i^ons V. Blenkin, Jac. 267, 268; and staying his interfering with their custody: De Monlaigle v. Cane, M. B., 1 Feb. 1853; continued at the hearing, S. C, 3 Dec. 1853. 6. Order regulating Residence during Holidays. Upon motion by way of appeal &c., Let the Deft H. {the hus- band) forthwith deliver up the Pit I. to her mother the Pit A. for the purpose of allowing the said infant to pass the rest of her pres- ent holidays with her said mother ; And Let the Deft H. be re- strained from preventing the infant Pit H. the j'ounger from passing the first month of the coming Midsummer holidays with his mother the Pit A., as directed by the trustees of the indenture dated &c., by their notice dated &c. , set forth in the third paragraph of the Pit's (bill) ; And Let the said Deft be also restrained from pre- venting the Pit A. from having access to or communication with her said children the Pits I. and H. the younger, or either of them, at their respective schools in the Pit's (bill) mentioned, subject only to the ordinary regulations of such schools for the time being. — Hamilton v. Hector, L. C, 6 Ch. 701, reversing 13 Eq. 511. 6. Custody given to Foreign Q-uardian. Upon motion &c., Declare that the order dated &c. [order ap- pointing guardian in Migland'] is to be without prejudice to the power and right of the Deft V., as the guardian appointed by the Austrian Vice-Consular Court at Constantinople, And that the said Deft as such guardian has the sole and exclusive right to the cus- tody and control of the infant Pits B. ; And the said Deft V. is to be at liberty to apply as to the removal of the infant Pits out of the jurisdiction of this Court, and otherwise as he may think fit. — Nugent v. Vetzera, V.-C. W., 2 Eq. 704. 7. Temporary Absence Abroad. " The said W. undertaking that the said infant B. shall return to this country (within the jurisdiction of this Court) on or before the day of , lor within from this time], and having signed the Registrar's book (summons) accordingly, Let the said infant be allowed to accompany the said W. on her intended tour to &c. ; And Let the sum of £ be allowed to &c., the said infant's guardian, in addition to the sums already allowed ftjr the mainten- CH. XVm. S. VI.] CUSTODY — RELIGIOUS INSTRUCTION, ETC. 426 anee and education of the said infant by the orders dated &c. ; And Let the said guardian out of such sums pay to the said W. the sum of £ , for the said infant's travelling and other expenses on the journey." — Costs to be costs in the cause. For orders for maintenance of infants out of the jurisdiction, see Stephens v. James, 1 M. & K. 633; Wyndham v. L. Ennismore, 1 Keen, 468; De Weeverv. Ruchport, 6 Beav. 392. 8. Guardian havinff Removed Infant Ward out of Jurisdiction, to bring her within. On infant's petition by her guardian to have settlement ap- proved, — " Let L., the mother and guardian of the Petr B., the infant, bring the said infant within the jurisdiction of this Court, and produce the said infant, and personally attend with the said infant before the V.-C, &c. (in his private room), at the Court in Lincoln's Inn, at 10 o'clock of the forenoon, on , the day of ; And in the mean time Let the said petition stand over." — Re Bickersteth, V.-C. S., 24 May, 1856. Affirmed by L. JJ. ; but the order to be entitled also in a cause in which the infant was Deft. 9. Infardi restored to his Friends Abroad. Upon motion &c., "This Court being of opinion that the infant Deft should return to Paris forthwith, Let the Pit be appointed joint guardian with the said Y., of the person of the infant Deft, And Let V., the infant Deft, be delivered into the custody of some person or persons to be appointed bj' the said guardians or by one of them, and be by them or him taken to Dover and placed upon a steam-packet bound for Calais, with a view to his immediate re- turn to Paris." — Castel-Florite v. Griesbauer, M. R., 5 May, 1876. In this case the circumstances rendered it expedient that the infant should be under the care of his friends at Paris, and not allowed to remain in England. NOTES. CUSTODY. By the Judicature Act, 1873, s. 25 (10), " in questions relating to the custody and education of infants the rules of Equity shall prevail." The distinction that existed between the rules of Equity and Common Law in this respect is well illustrated by the decisions in Andrews's Case, L. R. 8 Q. B. 153, 8 Ch. 640; and in Alicia Race's Case, 7 E. & B. 186. At Common Law the right of the father, or testamentary guardian of 426 INFANTS. [PAET III. his appointment, and of the mother as guardian for nurture after the death of the father, there being no testamentary guardian, was treated as para- mount, and could be enforced by writ of habeas corpus, which, when the infant was too young to select his custody (under fourteen in the case of a male, under sixteen in the case of a female: Beg. v. Clarke, 7 E. & B. 186 ; Reg, V. Howes, 3 E. & E. 332 ; Mallinson v. M., L. R. 1 P. & M. 221 ; Ryder V. E.,9 W. R. 440; independently of mental capacity: Re Andrews, L. R. 8 Q. B. 153, 159; Reg. v. Clarke, 7 E. & B. 186, 197), the Court had no jurisdiction to refuse, unless cruelty, or contamination from the gross immorality of the father or guardian, was to be apprehended : Re Hake- mil, 12 C. B. 223 ; Rex v. Greenhill, 4 A. & E. 624; Rex v. Isley, 5 A. & E. 441; Reg. v. Clarke, 7 E. & B. 186. In Equity a discretionary power has been exercised to control the father's or guardian's legal rights of custody, where their capricious exer- cise would materially interfere with the happiness and welfare of the child, or where such rights have been forfeited by conduct or acquies- cence; or where the father has so conducted himself or is placed in such a position " as to render it not merely better for the children but essential to their safety or to their welfare in some very serious and important respect that his rights should be superseded or interfered with: " Fynn's Case, 2 Dr. & S. 457, 474; Andrews v. Salt, 8 Ch. 636; Re Curtis, 7 W. R. 474; Swift v. S., 84 Beav. 266; Lyons v. Blenkin, Jac. 245. Accordingly in Re Andrews, L. R. 8 Q. B. 153, the Court of Queen's Bench having, though with reluctance, granted to the testamentary guar- dian a habeas corpus, subject to the validity of his testamentary appoint- ment, the Court of Chancery restrained the guardian from removing the infant, then aged eleven, from the custody of the grandmother, by whom she had been brought up for ten years in the English Church, the father having been a Roman Catholic: Andrews v. Salt, 8 Ch. 640. And under the new practice the Queen's Bench Division, on the ground of the father's -gross and habitual intemperance, violence, and constant use of improper and outrageous language, declined to restore the child, a boy of nine years, to the custody of his father from that of his maternal grandfather: Goldsworthy's Case, 2 Q. B. D. 75. The absolute right of a father to the custody of his children — except in cases where by gross and extreme misconduct he had shown himself unfit to discharge the parental trust, or the children would be injured by remaining under his custody (see cases collected, Simpson, Infants, 138- 147) — was first modified by 2 & 3 V. i;. 54 (Talfourd's Act), which gave the Court, on the application of the mother, an absolute discretionary power as to the custody of and access to the infant when under seven. See as to the effect and operation of this Act (repealed by the Infants Custody Act, 1873), Warde v. W., 2 Ph. 786; Re Halliday's Estate, 17 Jur. 56; Re Tomlinson, 3 Dr. & S. 371; Exp. Young, 4 W. R. 127; Shillito v. Collett, 8 W. R. 683, 696; Re Winscom, 2 H. & M. 540, as to the principles on which the Court granted or refused a mother access to her child under 2 & 3 V. c. 54. By the Infants Custody Act, 1873 (36 & 37 V. c. 12), the right of the mother to the custody of her children as against the father is recognized and greatly extended. Section 1 provides that on petition, by her next CH. XV7II. S. VI.] CUSTODY — RELIGIOUS INSTRUCTION, ETC. 427 friend, of the mother of infants under sixteen the Court of Chancery may order that she shall have access to and the custody or control of such infants, subject to such regulations as to access by the father or guardian of the infants as the Court shall deem proper. Section 2 provides that no agreement in any separation deed made between the father and mother of an infant shall be held to be invalid by reason only of its providing that the father of such infant shall give up the custody or control thereof to the mother ; but such agreement shall not be enforced if the Court be of opinion that it will not be for the benefit of the infant to give effect thereto. The effect of this Act is to place the custody of the infants entirely within the discretion of the Judge, in the exercise of which their interests will be the primary consideration: see Re Taylor, 4 Ch. D. 157; and atheistical opinions, not.merely held but openly proclaimed: see Re Besant, 40 L. T. N. S. 469 ; or constant drunkenness of the mother: Re Carnegie, M. R., 30 March, 1878, —will induce the Court to refuse to enforce the father's agreement to give up the custody and control of the children, and order them to be delivered to him. Production of the infant may be enforced by writ of habeas corpus, which will be issued at the instance of the person having the legal right to his custody in order that the infant may be brought up, or that it may be ascertained by the return how he has been disposed of: Re Matthews, 12 Ir. C. L. R. 233. For the principles regulating the custody of and access to infants, where their parents have been judicially separated, see D'' Alton y. D'A., 47 L. J. P. D. 59, 4 P. D. 87. RELIGIOUS EDUCATION. The rights of the father as to directing the religious education of his children are analogous to his right to the custody of their persons. Religio sequUur pairem; and except under very special circumstances the child must be brought up in the religious faith of the father; and although the Court, having regard to the child's physical well-being, will not remove it during tender years (under the age of seven) from the mother's custody, the order will provide for the education of the child, when capable of receiving religious instruction, in the faith of its deceased father: Austin v. ^., 4 D. J. & S. 717, 84 Beav. 257. And in Hawksworth v. H., 6 Ch. 539, following the principle enunciated by Lord Westbury in Austin v. A., the child of a deceased Romanist father who died when the child was six months old was, when eight years and a half old, ordered to be brought up in the Roman Catholic faith, though up to that time brought up by the mother as a Protestant. Under very special circumstances, such as a long-continued course of religious training by the mother, without opposition from the testamentary guardian, and fixed religious convictions formed by the child, the Court has refused to interfere with the mother's teaching: Stourton v. S., 8 D. M. &G.760; Re Browne, 2 Ix. Ch. R. 151; Re 0'Malleys,SlT.Ch. R.291. In the English decisions to this eifect there have been special grounds for departing from the general rule: see Hawksworth v. H., 6 Ch. 539; 428 INFANTS. [part HI. Davis V. D., 10 W. R. 245; and the Court will not usually control the dis- cretion of guardians as to the faith in which they educate their wards: Talbot V. Shrewsbury, 4 M. & Cr. 672. If the father had died without appointing a testamentary guardian, the toother, as guardian by nature, acquired the father's right of directing the religious education of the children: see Alicia Race's Case, 7 E. & B. 186; subject to the jurisdiction of Equity to control the right under special circumstances. In this case an order was subsequently made by V.-C. Kindersley, the child having been made a ward of Court, restraining the mother from interfering with the religious education of the child in the faith of its father, and from proceeding under the writ of habeas corpus granted by the Court of Q. B. The case was heard in private; but it appears (see 3 Jur. N. S. Part II. p. 92) that the judgment proceeded upon the grounds : 1. That the religion of the father, in the absence of any other circum- stances, governs that of his children; 2. That the mother had expressly admitted that the father's will was that the children should be brought up as Protestants; and, 3. That the child had been brought up from her birth until ten years old, and since the father's death for a year and a half, with her mother's acquiescence, in the religion of her father (Church of England), and that the fixed course of education would not be changed at the risk of unsettling the child's principles; If the father has left no instructions, it wiU be presumed that he in- tended the child to be brought up in his own religion: Re Newbery, 1 Ch. 263. But the father may by his conduct lose his right to have his child edu- cated in his own religion, even in his own lifetime, and much more after his death: Andrews v. Salt, 8 Ch. 622, 639; Re Meades, I. R. 5 Eq. 98. If he has shown himself careless, and allowed his wife to have the re- ligious education of the children, directions in his will that the children be brought up in his own faith may be disregarded: Hill v. H., 10 W. R. 400; Garnett's Case, 20 W. R. 222 ; on the ground of risk to the child by a change of religious education: Witty v. Marshall, 1 Y. & C. C. 68. And although before the Infants Custody Act, 1873, s-. 2, an agreement by the father to abandon his right to the custody or control over the religious education of his children was not binding at Law, and would not be specifically enforced in Equity: see VansittartY. V., 2D. & J. 249 ; Hope Y. H.,8 D. M. & G. 731; Re Meades, I. R. 5 Eq. 98; a promise to the wife before marriage that the children shall be educated' in her religion is a circumstance of importance in the exercise by the Court of its discretion: Andrews v. Salt, 8 Ch. 622; Hill v. H., 10 W. R. 400; but such ante-nuptial promise is not binding on the father, and cannot affect his undoubted legal right to control and direct the religious teaching of his children: Re Agar Ellis, 10 Ch. D. 49; and see Hamilton v. Hector, 6 Ch. 701, that effect will be given to an agreement by the husband, in a compromise of proceedings in the Divorce Court, giving the trustees discretion as to where the children should spend their holidays. In many instances the Court has taken the course of seeing and con- versing with the infant, to ascertain what his inclinations were on the sub- ject of religious faith: see Witty v. Marshall, 1 Y. & C. C. 68; Stourtoii CH. XVIJI. S. VI. J CUSTODY — RELIGIOUS INSTRUCTION, ETC. -429 V. S., 8 D. M. & G. 760; Re Lyons, 22 L. T. N. S. 770. But when the infant is of tender yeai's (under ten) this practice seems to have been discouraged in Hawksworth v. H., 6 Ch. 539. RESIDENCE ABROAD. Wards of Court must not be taken out of the jurisdiction without leave : see 2 Lead. Cas. Eq. 698, and cases there cited. And except in cases of necessity on the score of health or otherwise, or from manifest advantage to the child, and upon proper guarantees, permanent residence abroad will not be ajlowed: see Jeffreys v. Vanteswartswarth, Barn. Ch. 144; Re Medley, I. R. 6 Eq. 339. The order should provide for the education of the infants, for submit- ting (at least once in every twelve months) proper and necessary informa- tion to the Court as to their condition, progress, and well-being, and security for their return, when so required, upon reasonable notice; and the maintenance in such a case has been limited to one year only, with liberty to apply: see Campbell v. Mackay, 2 My. & Cr. 31; Wyndham V. L. Ennismore, 1 Keen, 467; Re Medley, I. R. 6 Eq. 339. And in the case of female infants being allowed to go to live abroad with their aunts, their only relations, recognizances were required for their return to England, and that they should not marry without leave of the Court: Jeffreys v. Vanteswartswarth, Barn. Ch. 144. Upon due security for his return, an infant has been placed at the Uni- versity of Dublin, to be near his father and sisters: Lethem v. Hall, 7 Sim. 141; and allowed to visit his father abroa,d: Biggs v. Terry, 1 My. & Cr. 675. And see cases collected, Simpson, Infants, 146, 147. The Court will not compel a ward born abroad, but a British subject, to leave this country: Dawson v. Jay, 3 D. M. & G. 764; but will not in- terfere with the right of a foreign guardian, duly constituted by a foreign Court of competent jurisdiction, to remove his wards, who are foreign sub- jects, from England: Nugent v. Vetzera, 2 Eq. 704. In the case of a ward of Court who has been removed and his residence concealed, there is no privilege for concealing his residence on the part of a soUcitor who has acquired the knowledge professionally, or of any other person: Ramsbotham v. Senior, 8 Eq. 575; Burton v. E. Darnley, lb. 576, n. n. — OEDEKS TO ENFORCE PKODUCTION OP THE PEKSON OP THE INF Aire. 1. Order to Produce Infant in Court. Let the petition stand over until &c. ; And Let A. and B., and C, the infant, then personally attend this Court on the matter of the said petition, before &c. at 389. In the absence of special contract, the grantee of an annuity will not be ordered upon redemption of the annuity to deliver up a policy of assurance effected by him on the life of the grantor, although the annuity was cal- culated so as to cover extra premiums for residence abroad or military service : Gottlieb v. Cranch, 4 D. M. & G. 440 ; Knox v. Turner, 5 Ch. 515, 9 Eq. 155 ;: Lea v. Hinton, 5 D. M. & G. 823. And a policy having been effected by the grantee of an annuity on the life of the grantor, with an engagement to assign the policy upon redemp- tion of the annuity, the representative of the grantor who died without redeeming was not entitled to the proceeds of poKoy, nor even to the sur- plus, beyond the redemption money: Bashford v. Cann, 33 Beav. 109. Premiums paid on a policy by the mortgagor, after he has become bank- rupt, must be repaid to the moitgagor's estate, with interest at four per cent, by the mortgagee out of the policy money received by him : Shearman v. British Mutual, Ifc. Co., 14 Eq. 4; and see Saunders v. Dunman, 26 W. R. 397. BILLS OF SALE — REGISTRATION. By the 17 & 18 V. c. 36, as amended by 29 & 30 V. e. 96 (BUls of Sale Act, 1866), every bill of sale (defined by 17 & 18 V. c. 36, s. 7) of goods, furniture, fixtures, and other articles capable of complete transfer by delivery, whether absolute or conditional, is void as against trustees in bankruptcy, or trustees under any assignment for the benefit of creditors, and execution creditors, as to all property comprised therein in the posses- sion or apparent possession (17 & 18 V. c. 36, s. 7) of the assignor, unless the bill ol sale or a copy thereof (on production to the proper oificer of the original duly stamped: see Stamp Act 1870, 33 & 34 V. e. 97, s. 7), with the affidavit required by the principal Act, be filed with the officer acting as clerk of the docquets and judgments in the Q. B. (the jurisdiction of which is now vested in the High Court of Jnstice: Jud. Act, 1873, s. 16), within twenty-one days after execution thereof. The r^istratiom must be renewed every five years, in default of which it ceases to be of any effect (BiUs of Sale Act, 1866, s. 4) ; and an assign- ment for value by the grantee before the period for renewal does not obvi- ate this necessity: Karet v. Kosher, §-0. Association, 2 Q. B. D. 361. By 17 & 18 V. e. 36, s. 7, assignments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers of ships and of goods in the ordinary way of trading, bills of lading, and other transfers, are excluded from the operation of the Act, and do not require registration: see Allsop v. Dm/, 7 H. & N. 457; Davis v. Jones, 10 W. E. 779; General Furnishing, Sfc. Co. v. Venn, 2 H. & C. 153; Exp. Watson, Re Love, 5 Ch. D., 35; Byexky v. Prevost, L. R. 6 C. P. 144. 528 MORTGAGES. [PAET IV. Post-nuptial settlements are not within the exemption, and require to be registered: Fowler v. Foster, 5 Jur. N. S. 99. Growing crops are not personal chattels within s. 7: Brantom v. Griffits, 2 C. P. D. (C. A.) 212, 1 C. P. D. 349 (not foEowing Sheridan v. Mc- Cartney, 11 Ir. C. L. R. 506). The name, residence, and occupation of the assignor, at the time of giving the security, must be correctly and strictly described in the bill of sale or aflldavit filed together with it: Alien v. Thompson, 1 H. & N. 15; London, Sj-c. Co. v. Chase, 12 C. B. N. S. 730; Exp. Eoman, Re Vining, 10 Eq. 68 ; Larchin v. N. W. Deposit Bank, L. R. 10 Ex. 64, 8 Ex. 80; Pward V. Bretz, 5 H. & N. 9; Briggs v. Boss, L. R. 3 Q B. 268; Exp. National Bank, 26 W. R. 375; and if the assignor is insufficiently described in the affidavit, the biU of sale may be referred to, to supplement the affidavit: Jones V. Harris, L. R. 7 Q. B. 157; Roe v. Bradshaw, L. R. 1 Ex. 106. The residence and occupation of every attesting witness must also be sufficiently described, either directly in the affidavit, or indirectly by reference to the bill of sale: Brodriok v. Scale', h. R. 6 C. P. 98; Tuton V. Sanoner, 3 H. & N. 280; Banbury v. White, 2 H. & C. 300; Smith v. Cheese, 1 C. P. D. 60; Pickard v. Marriage, 1 Ex. D. 364. For instances of sufficient and insufficient description under the Acts, see Prideanx Conv. vol. i. pp. 740, &c. ; Millar, Bills of Sale Acts, 288, &c. ; Davidson Conv. vol. ii. p. 704. As between the grantor and grantee, registration of a bill of sale is unnecessary: Hills v. Shepherd, 1 F. & F. 191; and also as against cred- itors, where possession of the property under the bill of sale is taken by the grantee within twenty-one days: Marples v. Hartley, 7 Jur. N. S. 448, 774, 1 B. & S. 1. A registered biU of sale of the whole of the mortgagor's property, given in renewal of a previous unregistered bill of sale, is, if no fresh advance be made, an act of bankruptcy, and void as a mere contrivance as against the trustee in bankruptcy of the mortgagor: Exp. Stevens, 20 Eq. 786; Exp. Cohen, 7 Ch. 20 (and see and distinguish Exp. Hall, 4 Ch. D. 682); secus as against an execution creditor: Ramsden v. Lupton, L. R. 9 Q. B. 17 ; Smale v. Burr, L. R. 8 C. P. 64 ; Hollingsworth v. WhUe, 10 W. R. 619. As between the receiver in bankruptcy, who is a trustee for all cred- itors, and the holder of a series of renewed bills of sale of which the last only is registered, before the adjudication but after the act of bankruptcy, the title of the receiver, which relates back to the act of bankruptcy, will prevail: Exp. Furher, 6 Ch. D. 181. The holder of an unregistered bill of sale is liable to be defeated by an act of bankruptcy prior to his taking possession, of which he had no notice, although the liquidation petition was not filed until after posses- sion taken: Exp. Atiwater, 5 Ch. D. 27. An agreement to execute a bill of sale does not operate as a valid equitable assignment unless registered: Exp. Mackay, 8 Ch. 643 ; Edwards Y.E.,2 Ch. D. 291. If the bill of sale is by way of mortgage, continued possession by the mortgagor, if consistent with the deed, will not render the transaction void as against creditors under 13 Eliz. c. 5: Martindale v. Booth, 3 B. fe Ad. 498, and cases there cited; even though there is no express provision CH. XX. S. VI.] MORTGAGES OF STOCK, ETC. 629 enabling the mortgagor to retain possession until default : Cooke v Walker, 3 W. R. 357. The question turns on the bona fides of the transaction. If executed honestly for the purpose of giving ca-editors a security, and not a contriv- ance for the personal benefit of the mortgagor or grantor, the transaction, though made with intent to avoid an intended execution, judgment, or sequestration, will be upheld: Allan v. Harrison, 4 Ch. 622; Miches v. Evans, 9 Car. k P. 642; Hale v. Saloon Omnibus Co., 4 Drew. 496; Wood V. Dixie, 7 Q. B. 896 ; see also Goodrioke v. Taylor, 2 H. & M. 380, 2 D. J. & S. 135; Ware v. Gardner, 7 Eq. 817. The Bills of Sale Acts do not, however, affect the doctrine of reputed ownership under the Bankruptcy Acts: Stansfeld v. Cubitt, 2 D. & J. 222; and, notwithstanding registration, goods comprised in a bill of sale, but remaining in possession of the grantor at his bankruptcy, may be seized by the trustee in bankruptcy under the Bankruptcy Act, 1869, s. 15 (5), as being in the bankrupt's reputed ownership: Exp. Harding, 15 Eq. 223 (explaining and distinguishing Ashton v. Blachshaw, 9 Eq. 510; Exp. Homan, 12 Eq. 598) ; Badger v. Shaw, 2 E. & E. 472 ; Spackmam v. Miller, 12 C. B. N. S. 659; Freshney v. Carrick, 1 H. & N. 653; and see Eobson, Bankruptcy, 448. As to the requisites of actual, as distinguished from merely formal, possession by the grantee of an unregistered bill of sale, so as to take the goods out of the actual as well as the apparent possession of the grantor, and relieve the grantee from the effects of non-registration, see Exp. Lewis, 6 Ch. 626; Exp. Fletcher, 5 Ch. D. 809; Pickard v. Marriage, 1 Ex. D. 364; Smith v. Wall, 18 L. T. N. S. 182; Gough v. Everard, 2 H. & C. 1; Exp. Mutton, 14 Eq. 178; Robinson v. Briggs,!,. K. 6 Ex. l._ An unsuccessful demand by the grantee, or even a diligent attempt to obtain possession, will not be sufficient: Exp. Jay, Re Blenkhorn, 9 Ch. 697; Ancona v. Rogers, 1 Ex. D. 285; in which cases the distinction between the provisions of the Bills of Sale Act and the "order and dis- position" clause in the Bankrupt Act, 1869, which contains the words " with the consent of the true owner," is pointed out. CHATTELS ACQUIRED AFTEE THE MORTGAGE. Chattels to be afterwards acquired by the mortgagor may be validly assigned by way of mortgage: Langton v. Horton, 1 Hare., 549; and a present equitable interest in them may be acquired if the property is of a specific character, so that specific performance of the contract to trans- fer could be directed: Holroyd v. Marshall, 10 H. L. C. 191 (reversing 2 D. F. «E J. 596); Clements v. Mathews, 11 Q. B. D. 808. See Reeves v. Barlow, 12 Q. B. D. 436. At Law the right of the assignee to the after-acquired property must have been perfected by possession, or by some acb of ratification after the property became acquired by the assignor: Lunn v. Thornton, 1 C. B. 379; Belding v. Read, 3 H. & C. 955; Congreve v. Evitts, 10 Ex. 298. The intention to comprise such after-acquired chattels must be clearly expressed to enable the assignee to take possession: Tapfieldv. HUlman, 6 Scott N. R. 967. 34 530 MORTGAGES. [PAET IV. And in Equity a mere power or license to the mortgagee to enter upon the premises and seize after-acquired chattels will not per se operate as a valid equitable assignment of such property : Reeve v. Whiimore, 4 D. J. & S. 1. See Reeves v. Barlow, 12 Q. B. D. 436. A seizure and entry under such license was bad after an act of bank- ruptcy: Carr v. Acraman, 11 Ex. 566; or after a liquidation by arrange- ment under the Bankruptcy Act, 1869: Thompson v. Cohen, L. K. 7 Q. B. 527. An assignment by bill of sale of all existing property with power to seize after-acquired property, in consideration of an existing debt and a substantial further advance of which the debtor receives the full benefit, is not an act of bankruptcy: Lomax v. Buxton, L. R. 6 C. P. 107 (not extending the decision in Graliam v. Chapman, 12 C. B. 85) ; Mercer v. Peterson, L. R. 2 Ex. 304, 3 Ex. 104; Exp. King, 2 Ch. D. 256; AUen v. Bonnett, 5 Ch. 577; Button v. Cruttwell, 1 El. & Bl. 15; and see Lacon V. Liffen, 4 GifE. 75, 11 W. R. 136, 474; Robson, Bankruptcy, 128, 129. The smallness of the further advance will not necessarily make the assignment by a debtor on the eve of bankruptcy, to secure a past debt as well as a fresh advance, an act of bankruptcy, but is strong evidence against the validity of the transaction: Exp. Fisher, 7 Ch. 636. nXTTJKES. By the Bills of Sale Act (17 & 18 V. c. 346), s. 7, personal chattels, the assignment of which must be registered within twenty-one days, are defined as "goods, furniture, fixtures, and other articles capable of com- plete transfer by delivery;" but, apart from the events of bankruptcy. or execution, the Act does not render null and void an unregistered as- signment of fixtures: Richards v. James, L. R. 2 Q. B. 285; Meux v. Jacobs, L. R. 7 H. L. 477. As against execution creditors, trustees for the benefit of creditors, and trustees in bankruptcy, a mortgage of- property, including fixtures which pass by the grant of the land as having been affixed by the owner, whether for trade purposes or otherwise, for the improvement of the freehold, or any permanent purpose, or even in a " quasi" permanent character, and even though put up since the date of the mortgage, will not require regis- tration under the Act: Mather y. Eraser, 2 K. & J. 536; Boyd v. Shorrock, 5 Eq. 72; CuUwick v. Smndell, 3 Eq. 249; Exp. Astbury, 4 Ch. 630; Wabnsley v. Milne, 7 C. B. N. S. 115; Longbottom v. Berry, L. R. 5 Q. B. 123; Exp. Reynal, Exp. Cotton, 2 Mont. D. & De G. 443, 727; Climie v. Wood, L. R. 4 Ex. 328, 3 lb. 257. If the fixtures are assigned by a separate deed, or by the same deed separately from the property, whether freehold or leasehold, so as to con- stitute the fixtures a distinct security capable of severance from the other property and held with perfectly different rights, and so as to enable the mortgagee to take possession and deal with them separately, the mort- gage, so far as respects the fixtures, requires registration under the Bills of Sale Act: Exp. Barclay, Re Joyce, 9 Ch. 576; Exp. Dalglish, 8 Ch. 1072; Re Eslick, 4 Ch. D. 503; Hawtreyv. Butlin, L. R. 8 Q. B. 290; CH. XX. S. VI.] MORTGAGES OF STOCK, ETC. 631 Begbie v. Fenteick, 19 W. E. 402 ; WaterfcUl v. Penistone, 6 El. & Bl. 876. And see as to these cases, Brown, Fixtures, pp. 142-155. Trade fixtures erected by a lessee, which as against his lessor he may remove at the end of his term, will pass by a mortgage of the term: Mather v. Fraser, 2 K. & J. 536; Exp. Barclay, Re Gowan, 5 D. M. & G. 403; Boyd v. Shorrock, 5 Eq. 72; and even by deposit of the lease as against a subsequent mortgagee or holder of an unregistered bill of sale of such fixtures: Meux v. Jacobs, L. R. 7 H. L. 481; and see Williams v. Evans, 28 Beav. 239. But as against the trustee in bankruptcy or in liquidation trade fixtures cannot be effectually assigned by a deposit of the lease without any memo- randum of charge: Ee Trethowan, Exp. Tweedy, 5 Ch. D. 559. If the article or machine is no further attached than by its own weight, it will in general remais a chattel, unless the intention is apparent to make it a permanent adjunct or part of the land: Holland -f. Hodgson, L. R. 7 C. P. 328, 333; Exp. Astbury, 4 Ch. 630; Hutchinson v. Kay, 23 Beav. 413; and see D'Eyncourt v. Gregory, 3 Eq. 382; Millar, Bills of Sale, 152, 153. On the other hand, articles or machinery which have been in any way fixed, as by bolts or screws, &c., though easily removable and fixed for the purposes of more convenient use only, will pass to the mortgagee as affixed to the freehold: Cross v. Barnes, 46 L. J. Q. B. 479; Holland v. Hodgson, sup. ; Longlottom v. Berry, L. R. 5 Q. B. 123; Walmsley v. Milne, 7 C. B. N. S. 115; Exp. Astbury, 4 Ch. 680. So also if affixed by a lessee during his term for his more convenient use of the property: Boyd v. Shorrock, 5 Eq. 72. The object and pui-pose of the annexation, whether for the permanent and substantial improvement of the dwelling or property, perpetui usus causa, or merely for the better or more convenient enjoyment of the premises (as in the case of a mirror, clock, carpet, or gas-meter), will also be taken into consideration : The Queen v. Lee, L. R. 1 Q. B. 241 ; Par- sons V. Hind, 14 W. R. 860; Hellawell v. Eastwood, 6 Ex. 295. Stock in trade, referred to in the inventory but not mentioned in the deed, did not pass by the mortgage of a foundry with the engines, fix- tures, machinery, &c., and working plant therein, " more particularly enumerated and specified in an inventory of even date to be signed by the parties and read and construed as part of these presents: " Exp. Jardine, 10 Ch. 322. As to restraining general words to articles ejusdem generis with pre- viously specified fixtures, see Bishop v. Elliot, 11 Ex. 113. As between the mortgagees in possession of business premises with the machinery and fixtures, and the executors of the mortgagor, a sum awarded as compensation for loss of profits from the premises having been taken by a company belongs to the mortgagees: Pile v. P., 3 Ch. D. 36. The tenant's right to remove fixtures which have been put up with the consent of the landlord (see 14 & 15 V. c. 61) has been extended by the Agricultural Holdings (England) Act 1875 (38 & 39 V. c. 92), s. 53, to fixtures (not including steam-engines), " for which he is not under the Act or otherwise entitled to compensation, and which are not so affixed in pursuance of some obligation in that behalf, or instead of some fixture belonging to the landlord," see Woodfall, 593, 594. 632 MORTGAGES. [PAET IV. And see upon the subject of fixtures, Brown on Fixtures; Prideaux Conv. vol. i. pp. 736-739; Elwes v. Mm, 2 Smith L. C. 162, 182; Wood- fall, 581-608; Ware v. Hall, 8 App. Cas. 195, 203, 204, 207; 1 Jones on Mortgages, Chap. xi. II. — MORTGAGES OF SHIPS. 1. Iden on Ship declared — Mortgage to be executed — Account'^ Sale. " Declare that the Pit, as the executrix of N. in the pleadings named, is entitled to a lien on the shares of the Defts in the ship ' Oden ' in the pleadings mentioned, for the sum of £— — and the interest thereon, at the rate of £ per cent per annum from the day of until payment, and for £ for commission, as in the pleadings mentioned ; And Let the Defts S. and L. execute to the Pit proper mortgages of their respective interests in the said ship in conformity with tie provisions of the Merchant Shipping Act, the same to be settled by the Judge in case the parties differ ; And Let upon such mortgages being executed and duly registered by the Pit* An account be taken of what is due to the Pit for principal and interest under such mortgages, and for her costs of this suit (Action) to be taxed &c. ; And upon the Defts, or either of them, paying to the Pit what shall be certified to be the total amount of such principal, interest, and costs, within six (calendar) months. &c.. Let the Pit deliver up such mortgages, with a proper receipt for the mortgage money thereby respectively secured indorsed thereon, and also all [other] deeds and documents relating thereto, upon oath, to the said Defts, or such of them as shall pay the same ; But in default &c. Let the Defts S. and L. execute to the Pit a bill of sale of their interest and shares in the said ship, but subject to the mortgage of the share of the Deft S. to C. in the pleadings named. — Continue the injunctions. — Liberty to apply. — Nichols V. Somervilte, V.-C. M., 10 March, 1869. 2. Declaration of Charge on Ship — Accounts and Inquiries — Redemptidn or Sate. Declare that the. mortgage in the pleadings mentioned, dated &c., is a valid security for the balance remaining unpaid of the sum of £ and the interest due thereon ; And Declare that the Pit is not liable for wilful default for having abstained from working the ship E. in the pleadings mentioned; And Let &o. 1. An inquirj'^ CH. XX. S. VI.] MORTGAGES OP SHIPS. 533 what has been received by Pit, or but for his wilful default he might have received, in respect of freight of the said ship; 2. An account of what is due to Pit for principal and interest under and by virtue of his security in the pleadings mentioned, and for his costs of this suit, including the costs of the motion for an injunction made on &c., and any costs properly incurred under the provisions of the Pit's said security, and also including therein the costs of the proceedings taken before the sheriff in Scotland with reference to the freight of the said ship E. ; and also the costs of the action of reduction, de- clarator, and damages in Scotland, so far as the same remain respect^ ively unpaid to the Pit ; and also all costs, charges, and expenses incurred by the Pit in respect of the custody and management of the ship E. since he took 'possession thereof; And in taking the said account a proper sum is to be allowed by way of estimate for the custody and management of the said ship, after the date of the cer- tificate, up to the time when the Pit shall be redeemed, or the ship sold, as the case may be, under this decree ; And upon the Defts or any of them paying to the Pit what shall be certified to be due for principal, interest, and costs, together with such allowance as aforesaid, within six months from the date of the certificate, at such time and place as shall be thereby appointed, Let the Pit transfer all his right and interest in the said ship to the Deft or Defts so redeeming, free from all incumbrances created by Pit, or any person claiming under him, such transfer to be settled by the Judge in Chambers in case the parties differ, and also deliver over to the Deft or Defts so redeeming the bUls of exchange (in Pit's bill) mentioned ; But in default of the Defts, some or one of them, paying to the Pit what shall be certified to be due to him for prin- cipal, interest, and costs, and allowance as aforesaid, Declare that the Pit is entitled to have the ship sold, and the proceeds of such sale after payment of expenses applied in payment of what shall be certified as due to him as aforesaid under this decree ; And in such case the Pit is to be at liberty to apply to this Court in respect of the sale of the said ship as he shall be advised ; But if the Defts or any of them shall redeem the Pit, or if the said ship shall be sold, and the proceeds of such sale after payment of expenses shall be more than suflScient to pay what shall be certified to be due to the Pit as aforesaid, but not otherwise, Let &c. 3. An inquiry as to the respective rights and interests of the Defts in the said ship, and their priorities, and also, 4. An account of what is due to the Defta respectively in respect thereof. —Adjourn &o. — Liberty to apply. Sa^mud v. Jones, V.-C. W., 7 L. T. N. S. 760. 534 MORTGAGES. [PABT IV. 3. Sale of Ship, and Account of Freight and Charges. Pit, by the direction of M., the owner, insured the ship from C. to London; M. assigned the ship and freight to K., subject to payment of the premium, and consigned ship and cargo to Deft B., as agent for K., ■with power of attorney to sell them and pay the premium; Deft B. sold, but claimed a lien prior to Pit's for disbursements. 1. Lbt an inquiry be made whether the ship in the pleadings mentioned has been sold, and if so, what is the amount of the clear proceeds of such sale, and what is become thereof; 2. And in case the said ship has not been sold, Let the same be sold with the approbation of the Judge — Direction to pay proceeds into Court. — And Let the following &c. : 3. An account of what is due to the Pit on account of the premiums of insurance of the said ship and for charges thereon ; 4. An account of all sums of money received by the Deft B. for the freight of the said ship ; 5. An account of all sums of money paid by the said Deft for the seamen's wages, and other charges forming a prior lien to the demand of the Pit, and of such bills, if anj-, as were drawn by the captain of the said ship from the island of C. for the ship's disbursements." — Adjourn &c. — Desborough v. Baillie, M. E., 26 Nov, 1805. 4. Account of Ship's Cargo — Charges and Bill of ^change. Pits shipped wheat at S., and remitted the bills of lading and invoice to T., of London ; T. indorsed and delivered the bills to R. for advances on a bill of exchange, and became bankrupt; R. sold the cargo, after notice that Pits were unpaid, and insisted on his right to retain the advances and a balance due to him from T. on a general account. 1. Account of all sums of money received by the Deft R. in re- spect of the cargo of wheat in the pleadings mentioned ; 2. Account of the costs and charges in respect of the said cargo and the sale thereof; 3. Account of what is due to Deft for principal and in- terest in respect of the bill of exchange for £1,000 in the pleadings mentioned ; the amount due on the last-mentioned account, and on account of the said costs and charges, to be deducted from the amount received by Deft in respect of the wheat ; the certified bal- ance, after such deductions, to be paid by the Deft R, to the Pits. — Deft to pay Pits' costs of suit. — Liberty to apply. — Spalding V. Suding, M. R., 6 Beav. 376. For decree, in suit by mortgagees of freight against the charterers and owners, directing an account of the freight of the ship earned under the charter-party; and an account of all charges and expenses properly in- curred by and on behalf of the ship and of her voyage, in earning the freight under the charter-party; and that in taking the accounts all parties CH. XX. S. VI.] MORTGAGES OF SHIPS. 635 were to have credit for sums paid by them, and to be charged with sums received by them respectively: with a declaration that the earnings of the ship were liable, in the first place, to make good and repay what should be found due in taking such accounts: see Lindsay v. Gibhs. M K 3D. &J. 691, 4W. R. 788. > • •. And for declaration, that the gross earnings of a ship were liable to the expenses of her repairs, refitting, and outfitting, and of the voyage, see Green v. Briggs, 6 Hare, 409. 5. Account of what due to Mortgagees of Ship sold hy them. Let an account be taken (without prejudice to any question) of what, if anything, w^ due to the Defts M. at the time of the sale of the ship S. in the pleadings mentioned, and what, if anything, is now due to the said Defts under and by virtue of the mortgages in the pleadings mentioned. — McLarty v. Middleton, L. JJ., 3 Aug. 1858. 6. Accounts against Mortgagee of Ship. Let the following &c. : 1 . An account of all money received by the Deft F. for insurances effected on the ship Y. in the pleadings mentioned, and on the freight thereof; 2. An account of what is due to the Deft F. for principal and interest on the security of the several policies of assurance on the said ship and freight assigned to him by the indenture of mortgage dated &c. in the pleadings mentioned, and for his costs (of this action), such costs to be taxed &c. ; 3. An inquiry whether any and what part of the money received by the Deft F. for insurances on the said ship and the freight thereof, beyond the amount which shall be certified to be due to him for principal and interest on his said mortgage, and for his said costs, were properly applied by him for purposes connected with the management of the said ship, or to or for the benefit of any and which of the co-owners of the said ship ; And Let what, if any- thing, upon taking the said accounts shall appear to be due from the Deft F. to the Pit in respect of his share as co-owner of the said ship, and as the assignee of the estate of A., another of the co- owners of the said ship, be certified ; 4. An account as between the Pit and the other co-owners of the said ship Y., of all sums paid in respect of wages and necessary disbursements made by the Pit as master of the said ship. — Adjourn &e. — Liberty to apply. — Creigh v. Fenwick, V.-C. S., 25 Jan. 1871. And for decree charging a mortgagee in possession who had delayed selling with the value of the ship at the time possession was taken, see Marriott v. Anchm- Reversionary Co., 2 GifE. 457, 3 D. F. & J. 177, 9 W. R. 89, 726. 536 MORTGAGES. [PABT lY. NOTES. Under the Merchant Shipping Act, 1854, 17 & 18 V. c. 104, which came into operation on May 1st, 1855, the legal title to a ship or a share therein is not complete until the owner's name be entered in the register book of the port to which the ship belongs ; no notice of trust is to be entered or is receivable by the registrar; and every registered owner may absolutely dispose of his ship or share, and give effectual receipts for the pnrchase- money (s. 43). For rules as to registering, see s. 35 et seq. The regis- trar is to give a certificate of registry showing the ownership, on which every change of ownership is to be indorsed: ss. 44, 45. The certificate is to be used for the navigation of the ship, and not to be detained by any person having a mortgage, lien, or charge upon the ship: s. 50. Any pledge of the certificate, even for valuable consideration, is by this section made illegal and void, and a detainer of the certificate so pledged is also illegal, and gives a right of action to the person by whom it has been pledged: Wiley v. Crawford, 1 B. & Sm. 253, 265; sectts, under the former Ship Registry Act, 8 & 9 V. c. 89, see Clarke v. Batters, 1 K. & J. 242 (holding that a lien might be created on the certificate of registry deposited to secure advances for the use of the ship). A dismissed master, whether a part-owner or not, has no lien upon the certificate of registry, even, it seems, in case of wrongful dismissal, and the Admiralty Division of the High Court has now jurisdiction to order it to be delivered up: The St. Olaf, 35 L. T. N.'S. 428; and see Gibson v. Ingo, 6 Hare, 112. As to registering a change of absolute ownership by sale or other devo- lution of interest, see 17 & 18 V. c. 104, s. 55 et seq. A mortgage of a ship or share therein is to be made by an instrument as in Form I. (Sched. to Act) ; and unless so made, the registrar may not record it: Amendment Act, 1855 (18 & 19 V. o. 91), s. ll; audit must be attested by one witness. Every such mortgage is to be recorded on the register in the order of time in which the same is produced to the registrar, a memorandum of which recording, and of the exact date thereof, is to be indorsed on the instrument: ss. 66, 67. Upon payment, an entry of dis- charge shall be made which shall revest the ship or share in the mortgagor or his representatives: s. 68. Such entry, when duly registered, is conclnsive, and the charge cannot be revived by an aUegatiou or memorandum on the register that the discharge was given by mistake: Bell v. Blyth, 6 Eq. 201, 4 Ch. 136. But jurisdiction has been exercised by the Admiralty Coxirt (now Admiralty Division of the High Court) to correct mistakes in registration prejudicial to the title of the rightful owner: The Rose, L. R. 4 A. & E. 6. So also (before the Admiralty Act, 1861) persons who had without title, or fraudulently, got themselves registered as owners of ships, have been ordered in Equity to retransfer the ship into the name of the right- ful owner, to deliver up the certificate of registry, and to account for the earnings made by the ship: Holderness v. Lamport, 29 Beav. 129; and see Orr V. Dickinson, Johns. 1. Priorities are regulated by the date of registration without regard to the CH. XX. S. yi.] MORTGAGES OP SHIPS. 537 date of the instruments, and notwithstanding notice of any prior un- registered charge: M'Calmont v. Rankin, 2 D. M. & G. 403; Coorr^es v Mansfield, 3 Drew. 193; Parr v. Applebee, 7 D. M. & G. 585; and the title to a ship of a registered purchaser for value, without notice that the title and registration of his vendor were fraudulently obtained, will not be disturbed: The Horlock, 2 P. D. 243 (adopting the law as to purchase for value without notice, as laid down in Heath v. Creahck, 10 Ch. 22). A mortgagee shall not, by reason of his mortgage, be deemed to be owner of a ship, or of any share therein, nor does the mortgagor cease to be owner except so far as may be necessary for making the ship available as a security for the mortgage debt: s. 70. Accordingly, so long as the mortgagee does not take possession of the ship, the mortgagor retains all the rights of ownership, and his contracts will be valid, provided lie does not materially impair the security of the mortgagee, who will be restrained from interfering with such contracts: Collins V. Lamport, 4 D. J. & S. 500. But s. 70 does not abrogate the ordinary rights of a mortgagee ; and his right, as registered mortgagee, is protected against a subsequent execu- tion creditor of the mortgagor (Dickinson v. Kitchen, 8 El. & Bl. 789) ; and by 3. 72 is not affected by the bankruptcy of the mortgagor upon an act of bankruptcy subsequent to registration. A mortgagee of a ship may sell and give effectual receipts, but a puisne mortgagee cannot sell, unless by order of some competent Court, without the consent of every prior mortgagee: s. 71. Registered mortgages may be transferred by an instrument in the Form K. in the Schedule to the Act. On production of such instrument the registrar shaU enter in the register the name of the transferee as mortgagee, and record on the transfer deed that the same has been re- corded by him: s. 73. Any transmission of the interest of the mortgagee by death, bankruptcy, or insolvency, or the marriage (of a female mortgagee) is also to be re- corded by entering the name of the person entitled under such ti-ansmis- sion : ss. 74, 75. By ss. 76-84, the registered owners of a ship or share therein may empower other persons, with or without restriction as to time or place, to mortgage a ship or shares therein, at any place out of the country in which the port of registry is situate by a certificate in the Form M. to be given by the registrar of such port, such certificate to contain a list of all then existing recorded incumbrances; and a record of every mortgage made under such power shall be indorsed on the said certificate by the registrar or British consular officer of the place where the mortgage is made ; and every certificate-mortgage shall have priority over every mortgage not recorded at the date of the certificate, and shall not be impeached on account of the death or bankruptcy of the person granting the power, unless the mortgagee had express notice thereof at the making of the loan. Every certificate-mortgagee shall have the same powers as a mortgagee recorded on the register; certificate-mortgages shall take priority inter se according to the date of the record of each upon the certificate; and if paid off a memorandum of the discbarge shall be entered by any regis- trar or British consular officer, upon which the mortgaged property shall 638 MORTGAGES. [PABT IV. revest as above ; the certificate is to be returned to the registrar by whom it was granted (on the return of the ship to her port, senible), who shall enter on the register book every mortgage made thereunder and not dis- charged, so as to preserve priorities, and then cancel the certificate, and enter the cancellation thereof in the book, ss. 76-80. By the Merchant Shipping Amendment Act, 1862 (25 & 26 V. c. 63), 8. 3, the expression " beneficial interest," used in Part U. (ss. 17-108) of the Act of 1854 includes interests arising under contract and other equi- table interests, the intention being that, without prejudice to the provi- sions for preventing notice of trusts from being entered on the register, &c., equities may be enforced against owners and mortgagees of ships in respect of their interest therein in the same manner as equities may be enforced against them in respect of any other personal property. Before this Act, which was passed to protect equitable rights, no con- tract for mortgage or mortgage security, except according to the provi- sions of 17 & 18 V. c. 104, was enforced or supported in equity: Liverpool Borough, Bank v. Turner, IJ. & H. 159, 2 D. F. & J. 502. But both under the Act of 1854 and that of 1862, s. 3, the Court was at liberty to look behind the register to the real nature of the transaction, and to treat as a mortgage, if it appear that such was the intention of the parties, that which on the face of it was an absolute transfer: The Innii- fallen, L. R. 1 A. & E. 72; Ward v. Beck, 13 C. B. N. S. 668; Gardner V. Cazenme, 1 H. & N. 423 ; and not only the registered documents, but aU the transactions between the parties relative to the mortgage loan, will be considered : The Cathcart, L. R. 1 A. & E. 314 ; and see I%e Victoria, 5 Jur. N. S. 204. So also where the mortgage of a ship already insured had been regis- tered as an absolute transfer, the mortgagor, notwithstanding the entry, was held to have retained an insurable interest in the ship and the right to sue for the insurance money: Hutchinson v. Wright, 25 Beav. 444. So also the purchaser of a ship which was transferred by a biH of sale, in the statutory form, but unregistered on account of his minority, was held to have acquired a valid title as against the vendor and his assignees in bankruptcy: Staplelon v. Haymen, 2 H. & C. 918. The guardian of a registered infant owner of a ship has no power to sell or mortgage the ship on behalf of the infant: Michael v. Fripp, 7 Eq. 95. A valid equitable mortgage of an unfinished ship, including the engines being constructed for her, may be created by the deposit of the builder's certificate, subject, as to the engines, to any lien of the engine builder for unpaid purchase-money: Exp. Hodgkin, 20 Eq. 746. By the Admiralty Court Act, 1861 (24 V. c. 10), jurisdiction was given to the High Court of Admiralty (now the Admiralty Division of the High Court) over any claim in respect of a duly recorded mortgage of a ship, whether the ship or the proceeds were or were not under arrest of the Court; and under this section equities between owners and mortgagees of ships will be enforced: The Cathcart, L. R. 1 A. & E. 314. Although by this Act, s. 4, jurisdiction is given to the Admiralty Court, over any claim for building, equipping, or repairing any ship if before the institution of the cause the ship or the proceeds thereof are under arrest of the Conrt, and, s. 5, over any claim for necessaries supplied to CH. XX. S. VI.] MORTGAGES OP SHIPS. 639 any ship elsewhere than in the port to which the ship belongs, unless it IS shown that at the time of instituting the cause any owner or part- owner is domiciled in this country; these sections do not create a mari- time lien in favor of the material-man who has supplied necessaries for the ship's equipment: The Two EUem, L. R. 4 P. C. 161; Pieve Superiore, L. R. 5 P. C. 482; nor as against the transferee of the ship, even with notice of the unpaid claim, does the material-man acquire any equitable lien: The Aneroid, 2 P. D. 189. A maritime lien on a vessel belonging to a company which has been ordered to be wound up is to be enforced in the winding-up and not in the Admiralty Court : The Australian Direct, Ifc. Co., 20 Eq. 325; unless possession has been taken of the vessel by /the mortgagees, in which case application should be made in the winding up for leave to take proceed- ings in the Admiralty Division: Rio Grande, Ifc. Co., 5 Ch. D. 282. The mortgagee of a ship may use her as a prudent owner would: Euro- pean, Ifc. Co. V. R. M. S. Packet Co., 4 K. & J. 676; Marriott v. Anchor, Ifc. Co., 3 D. P. «E J. 177, 2 GifE. 457; De Mattos v. Gibson, IJ. & H. 85. He is not liable for wilful default for declining to join in a charter- party of a speculative character before exercising his power of sale: Samuel v. Jones, 7 L. T. N. S. 760, Form 2, sup. pp. 532, 533. If he refuses to sell at request of the mortgagor, and employs the ship in a hazardous and speculative business resulting in a loss, he may be charged with what the ship, if sold when he took possession, would have fetched: Marriott v. Anchor, Sj-c. Co., 3 D. F. & J. 177; and, per Turner, L. J., with what the vessel might have earned if chartered in the ordinary course, and also with any damage beyond ordinary wear and tear which might have arisen in the course of his employment of the ship: lb. p. 193. ' Before the 17 & 18 V. c. 104, s. 191, as extended by 24 V. c. 10, s. 10, the master had no lien on the ship or freight for expenses or liabilities incurred by him for repairs of the ship, stores supplied, wages paid, or disbursements made: see Hussey v. Christie, 9 East, 426; Smith v. Plum- mer, 5 B. & Aid. 575; unless the expenses were incurred in fulfilment of obl^ations specifically imposed by charter-parties which he had concluded on behalf of the owner: Bristow v. Whilmore, Johns. 96, 4 D. & J. 325, 9 H. L. C. 391. And unless authority has been actually given by the owners, or he has been held out by them as their agent, the master's contract for necessaries will not bind them: The Great Eastern, L. R. 2 A. & E. 88. If the power of communicating with the owners does not correspond with the existing necessity, the authority of the master as agent of the owners to borrow money on the ship, or to pledge their credit for neces- saries wiU be recognized, see Machlachlan, 134. And now under 17 & 18 V. c. 104, s. 191, and 24 V. c. 10, s. 10, it is established that the master has a lien upon the ship and freight for his wages earned on board and his disbursements for the ship in priority to mortgagees of the ship: The Mary Ann, L. R. 1 A. & E. 8; The Hope, 28 L. T. N. S. 289 ; who have taken without notice of the claim in respect of which the lieu attaches: The Chieftain, Brow. & Lush. 104; The Caledonia, Swabey, 17. He will not be deprived of this lien by the fact of his being also part 540 MORTGAGES. [PART IV. owner: The Feronia, L. R. 2 A. & E. 65; nor can his co-owners oppose his right to payment of his wages and disbursements in priority to the holders of a bottomry bond given by himself : The Daring, L. R. 2 A. & E. 260. But as against his own mortgagees and unpaid creditors for necessaries supplied to the ship, a claim for wages and disbursements by a master part-owner will not be allowed priority: The Jenny Lind, L. R. 3 A. & E. 529. " Necessaries " for which, when provided for the ship by the master, the owners are liable, have been defined as whatever is fit and proper for the service on which a vessel is engaged; whatever the owner of that ves- sel as a prudent man would have ordered if present at the time: The Riga, L. R. 3 A. & E. 516, and cases there cited; and see The Marco Polo, 24 L. T. N. S. 804; The Albert Crosby, L. R. 3 A. & E, 37. And see as to the priority of the master's maritime lien, Maclachlan, 653; Kay, Shipping, 1137. If the amount claimed for necessaries and wages does not exceed £150, the County Courts have jurisdiction in the matter: 31 & 32 V. c. 71, s. 3. A solicitor's lien for costs under 28 & 24 V. c. 127, s. 28, upon a ship or its proceeds, as property recovered or preserved, has priority over liens for necessaries supplied after the institution of the suit in which the costs were incurred (but not over liens for necessaries previously supplied), and where the master is part owner and has instructed the solicitor, over his lien for wages : The Heinrich, L. R. 3 A. & E. 505. The right to freight is incidental to the ownership of the vessel, though it may be dealt with separately; and a contract as to ship and freight may be invalid as to the ship for want of registration, but enforceable as to the freight: Lindsayv. Gihbs, 3 D. & J. 690; Davenport v. Whitmore, 2 My. & C. 177; Mestaer v. Gillespie, 11 Ves. 621. Shares in ships are included in the word "stock" as defined by the Trustee Act, 1850: Merchant Shipping Amendment Act, 1855 (18 & 19 V. c. 91), s. 10. The registered mortgagee of a ship by taking possession, or doing some act equivalent to taking possession of the ship (see Rusden v. Pope, L. R. 3 Ex. 269), before the freight becomes payable, thereby becomes the owner and entitled to receive the freight accruing due, and contracted for before he takes possession; Brown v. Tanner, 3 Ch. 597; Keith v. Burrows, 2 App. Cas. 636, 2 C. P. D. 163, 1 lb. 722; Gumm v. TyrU, 6 B. & 8. 298, 4 lb. 680 ; and see Cato v. Iroing, 5 D. & S. 224 ; and to retain out of it not only what is due on his original mortgage, but also the amount of any subsequent charge acquired on the freight in priority to equitable charges of which he has had no notice: Liverpool Marine Credit Co. v. Wilson, 7 Ch. 507. Though he cannot recover back freight which he has allowed the mort- gagor to receive, see WiUis v. Palmer, 7 C. B. N. S. 340; he may at any time intercept the freight by giving notice to the mortgagor, consignee, or charterer that he intends to exercise his right, which will prevail against prior assignments of which he has not had notice: Wilson v. W., 14 Eq. 32. But this right in the mortgagee is subject to his taking possession, and CH. 2X. S. VI.] MORTGAGES OF SHIPS. 541 does not arise by virtue of the mortgage albnei Kdfh V. Burtows, sup. ; Dickenson v. Kitchen, 8 El. & Bl. 794; Gardner v. Cazenove, 1 H. & N. 423 ; and he will be restrained from defeating or interfering with engage- ments for the employment of the ship made by the mortgagor in posses- sion: Collins V. Lamport, 4 D. J. & S. 500; Johnson v. R. M. S. Packet Co., L. R. 3 C. P. 88; De Mattos v. GOson, 4 D. & J. 276, IJ. & H. 79. The freight is primarily liable to the expenses of the outfit and voyage incurred in earning it, and of repairs necessary to fit the ship for the ad- venture: Green -7. Briggs, 6 Hare, 395; Cato v. Irving, 5 D. & S. 224; and to the wages of master and seamen and premiums of insurance for the voyage in which the earnings were made : Lindsay v. Gibbs, 3 D. & J. 691. As against the mortgagee who takes possession of the ship before freight becomes due under the charter-party, the charterers are not en- titled to deduct from tiie freight advances made to the owner not proi vided for by the charter-party: Tanner v. Phillips, 42 L. J. Ch. 125. A bona fide mortgagee or transferee for value of a bill of lading is en- titled to the benefit of hia security as against the unpaid vendors : Coventry v. Gladstone, 4 Eq. 493. As to the right of the unpaid vendors as against the assignees in bank- ruptcy of the purchaser to the surplus proceeds of the goods after satisfy- ing the chai-ge of the mortgagee of the bill of lading: S. C. 6 Eq. 44. In the absence of special contract the cargo does not pass under the mortgage of a ship: Alexander v. Simms, 18 Beav. 80; nor by the mort- gage of a ship with all masts, &c., boats, oars, and appurtenances, where, as in the case of a whaler, the cargo was the only earning of the ship: L&ngton V. Horton, 5 Beav. 9 ; but the title of the mortgagee of a whaler while at sea, together with the tackle and appurtenances, and all oil and other cargo which might be brought home, to whom possession was given by the master on the return of the ship, prevailed over that of a subsequent execution creditor of the mortgagor: Langton v. Horton, 1 Hare, 549. BOTTOMRY AND RESPONDENTIA. Bottomry bonds are contracts in the nature of mortgages by which the keel or bottom of the ship, as representing her entire fabric, rigging, and stores, are pledged as security for repayment of money advanced for re- pairs or other purposes necessary for the safe prosecution of the particular voyage, see Fisher on Mortgage, 84; Maclachlan, Merch. Ship. 47. Respondentia contracts apply to the cargo alone, which is thereby pledged for the repayment of a debt contracted for the costs of trans- shipping and forwarding the cargo to its destination: Fisher on Mortgage, 100. As to the requisites for the validity of these securities, which are based upon necessity and maritime risk (and therefore cannot be validly given for the master's own debts, nor, even with the owner's consent, upon a British ship lying in a British port, for a new voyage), are favored by the law, require no particular form of instrument, and will not be invalidated upon technical or minute grounds ; but must be enforced within a reason- able time, see The Karnak, L. R. 2 A. & E. 280, 2 P. C. 505; Smith v. 542 MORTGAGES. [PART IV. Bank of N. S. Wales, L. E. 4 P. C. 194; The Cargo ex Sultan, 5 Jur. N. S. 1060; The Royal Arch, Swabey, 269; The Heligoland, lb. 491; The Laurel, 11 Jur. N. S. 46; The Panama, L. R. 1 A. & E. 390; The Great Pacific, lb. 381, 2 P. C. 516; The Ma, L. R. 3 A. & E. 542, and earlier cases collected in Pritchard Adra. Dig. 31, &o.. Bottomry; Maclachlan, 49. If communication be practicable, the master cannot bottomry the ship (and a fortiori cannot hypothecate the cargo) without communicating with the owner ; and he must state not merely that repairs involving expense are necessary, but that a bottomry bond must be had recourse to : Klein- wort V. Cassa Mariliima, 2 App. Cas. 156 ; The Onward, L. R. 4 A. & E. 38; The Buonaparte, 8 Moore P. G; 459; The Hamburg, Br. & Lush. 258; but the circumstances, e. g. great delay and uncertainty in transmission of letters, may be such as to dispense with the necessity of communicat- ing with the owner: see The Lizzie, L. R. 2 A. & E. 254. As to what items will be allowed in a bottomry bond, see The Edmond, Lush. 211; The Prince George, 4 Moore P. C. 21. The holder of a bottomry bond upon which the master has made him- self personally liable is entitled to payment out of the proceeds of the ship and freight in priority to the master : The Jonathan Goodhue, Swabey, 524 ; The William, Swabey, 346 ; secus in the absence of express contract by the master: The Salacia, Lush. 545. Even where the master has bound himself as well as the ship and freight, the general rule was not acted upon where, by marshalling the assets, the bondholder would not be prejudiced by payment of the master in priority: The Edward Oliver, L. R. 1 A. & E. 379 ; and that assets will be mar- shalled in favor of the master's claim for wages, see The Eugenie, L. R. 4 A. & E. 123. The obligee of a bottomry bond cannot, on the other hand, compel the seamen to sue the owners for wages so as to leave the ship clear to answer the bond: The Arab, 5 Jur. N. S. 419; and a claim for seamen's wages takes priority over a claim upon a bottomry bond: The William F. Safford, Lush. 69 ; The Union, Lush. 128. Advances made by the charterer for the homeward voyage on bottomry, with notice of a mortgage on the homeward freight, may be set off against the freight to be paid by him, but not advances beyond the sum covered by the bond: Dobson v. Lyall, 2 Ph. 323, n. Section VII. — Mortgages in which Particulae Persons ARE interested. 1. Mortgage to Solicitor for Costs to stand as Security only for what actually due — Taxation of Costs •— Account of Rents. Declare that the indenture of mortgage dated &c. ought to stand as a security only for such amount of principal and interest (if any) as may be certified to be due on talring the accounts hereinafter CH. XX. S. VII.] PAETICDLAE PERSONS INTERESTED. 643 directed ; And Let the Deft H. on or before &c. make out and deliver to Pits proper bUls of costs in respect of tlie legal and equitable suits and proceediugs in the said indenture of mortgage referred to, and also in respect of the other professional business done and transacted by Deft H. for X., the testator in the pleadings named, m his lifetime ; And Let all such bills of costs when delivered be referred to the Taxing Master to tax and settle the same. — Deft H. to produce upon oath all documents &c. relating to the said bills, and to be examined &c. and give credit for all sums of money by him received on account, And Let the following &c. : 1. An account of the receipts of the Defts and each of them in respect of the matters in the pleadings mentioned, and particularly an account of what has been received by the Deft H. or by any person &c. in respect of the rents, profits, and proceeds of the estates m the pleadings mentioned to or otherwise out of the property of or on account of the testator in his lifetime, and of the apphcation thereof 2. An account of the receipts of he Defts, and each of them, or by any person &c., for or on account of the testator, or his estate, subject to his death, and of the application thereof &c. — Defts to pay to Pits their costs of this suit up to this hearing, to be taxed &c. — Adjourn &c. — Liberty to apply. — Morgan v. Iliggins, V.-C. S., 20 Jan. 1859. 2. The Like. An account of what is due to the Deft L. as executor of W. de- ceased in the pleadings named for principal and interest on the mortgage made to the said W. in the pleadings mentioned and for his costs of suit ; to be taxed ; " And Let, in case any part of the Deft's demand consists of bills of costs, the same be taxed &c. ; And Declare that (as to that part of the Deft's demand) the mort- gage is to stand as a security only for what, if anything, shall appear to be due to the Deft on such taxation." — Morgan v. Lewis, M. K., 29 Nov. 1811. For inquiry what was the bill of costs and account, which made up a large sum secured by mortgage, and alleged to consist of money advanced and costs, and whether any, and which, of the items of such bill and account were improper, and ought not to be allowed on taxation, see Edwards v. Merrick, 2 Hare, 79. For decree setting aside a mortgage by father life tenant and son ten- ant in tail ia remainder, to their solicitor, immediately after the son attained majority, and subsequent sale; with accounts, and direction for reconveyance on payment of balance due, if any, with special directions, see King v. Savory, 1 S. & G. 316 ; affirmed with a slight variation, nom. Savery v. King, 5 H. L. C. 627. 544 MORTGAGES. [PABT IV. 3. Wife's Estate — Inquiry if Mortgage was for her Benefit. An inquiry to whom, and for whose use, the sum of £600, raised by the mortgage, dated &c., was paid and applied. — Tkomas v. r., V.-C. W., 2 K, & J. 85. For decree giving a wife the right to redeem one of two estates of hers mortgaged separately to the same person for separate sums, and directing distinct accounts of the sums due on the two mortgages, see HiU v. Edr monds, Y.-C. P., 5 D. & S. 603; and see Fisher on Morf^age, 1120, for an abstract of the decree. 4. Foreclosure of Equitahle Mortgage against Infant Heir-at- law — Infant declared a Trustee — Person appointed to convey. UsuAi account; And upon the Defts paying to the Pits what shall be certified to be due to them for principal &c. within &c. the Pits to deliver up all deeds &c. ; Declare, that in default of such pay- ment by the time aforesaid the Pits will be entitled to the said here- ditaments free and clear of and from all right, title, interest, and equity of redemption of, in, and to the same, and to have an abso- lute conveyance thereof accordingly ; And in that case. Declare that the infant Deft P. will be a trustee within the meaning of the Trustee Act, 1850, for the Pits of the hereditaments in the state- ment of claim mentioned ; And thereupon Let the Deft C. (executrix of deceased mortgagor and mother of infant), on her own behalf and on behalf of the said infant Deft, execute a conveyance thereof to the Pits, such conveyance to be settled by the Judge in case the parties differ. — Liberty to apply. — Foster v. Parker, M. E., 25 Jan. 1878, W. N. (78) 26. The order in this case, which was made after the chapter on Infaitts had passed through the press, is important upon the question whether a day to show cause after he has come of age will still be given to an infant in foreclosure actions. For orders for mortgage of a lunatic's estate, and for the exercise by the committee on behalf of a lunatic mortgagee of the power of sale con- tained in the mortgage and realization of the amount, see Ebner, Lunacy, 209, 210. 6. Foreclosure of Separate Mortgages hy Principal and Surety. Pit and D. (deceased) were co-trustees of a mortgage from James W., further secured by mortgage from Joseph W.; James W.'s equity of CH. XX. 3. VII.] PAETICULAB PERSONS INTERESTED. 646 redemption in the principal mortgage had been purchased by M. ; L. and B. were entitled as devisees to the equity of redemption of the property mortgaged by Joseph W. as a surety. Let the following &c. : 1. An account of what remains due to the Pit -for principal and interest in respect of his mortgage for £ secured by the several indentures, dated &c., and for his costs in this Court and at Law, such costs to be taxed &c. ; 2. An account of the rents and profits of the mortgaged hereditaments comprised in the indenture in &e. first mentioned, dated &c., received by the Pit and D. (deceased) , or either of them, or bj' &c. ; And Let what shall appear to be due on the last-mentioned account be deducted ftom what shall appear to be due to the Pit for principal, interest, and costs, as aforesaid ; And Let upon the Deft M. (principal), or the Defts L. and B. (sureties), paying to the Pit what shall be certified to remain due to him for principal, interest, and costs, after such de- duction as aforesaid, within six (calendar) months after &c., at such time and place &c., the Pit convey the mortgaged heredita- ments in manner following, that is to say, in case the Deft M. shall redeem the Pit as aforesaid. Let the Pit convey the hereditaments comprised in the said first-mentioned indenture, dated &c., free &c., and deliver all deeds &c., to the Deft M., or as he shall appoint ; And Let the Pit also convey the hereditaments comprised in the indenture &c., secondly mentioned, dated &c., free &c., and deliver all deeds &c. to the Defts L. and B., or as they shall ap- point; But in case the Defts L. and B. shall redeem the Pit as aforesaid, Let the Pit convey the mortgaged premises comprised in each of the said several indentures of &c., free &c., and deliver all deeds &c. to the Defts L. and B., or as they shall appoint ; But in de- fault of the Deft M. or the Defts L. and B. paying unto the Pit what shall be certified to remain due to him for principal, interest, and costs as aforesaid, by the time aforesaid, the said Defts are from thenceforth to stand absolutely debarred &c. — Liberty to apply. — JBecket V. Mcklethwaite, V.-C, 6 Mad. 199, 202. — Settled by the V.-C. For foreclosure decree, working out the equities between the Defts, where A. mortgaged his estate to Pit, and afterwards joined B. as surety in a mortgage to Pit of both their estates for a further sura, and A. had died, having devised part of the estates to B., see Aldworth v. Robinson, 2Beav. 287; Fisher on Mortgage, 1127. NOTES. SOLICITORS. Before 33 & 84 V. c. 28, a solicitor could not take a security from his client, nor apply one taken, for future costs: Re Foster, 2 D. F. & J. 105; 35 546 MORTGAGES, [PART IV. Pilcher v. Rigby, 9 Price, 83; Jones v. Tripp, Jac. 323; nor enter into an agreement to receive a gross sum for future services: Philby v. Hazle, 8 C. B. N. S. 647. But lie might take a mortgage from his client for costs already due: Williams v. Piggott. Jac. 200; and 6 & 7 V. c. 73, s. 37, is no bar to a suit by him to foreclose the mortgage: Thomas v. Cross, 13 W. R. 166. The Court will only allow the mortgage to stand as a security for so much as shall appear to be due to the solicitor upon taxation : Kenney v. Brown, 3 Ridgw. P. C. 522; Newman v. Payne, 4 Bro. C. C. 350; Eyre V. Hugh&H, 2 Ch. D. 148. And a mortgage to a third party who was in fact a trustee only was decreed to stand as a security only for what should be found to be prop- erly due, with interest at four per cent: Thomas v. Lloyd, 3 Jur. N. S. 288. A security which has been originally obtained by the solicitors of the alleged mortgagor in their own favor by fraud cannot be enforced by an assignee from the solicitors for value without notice of their fraud: Vorley V. Cooke, 1 Giff. 230. The release by a client of a mortgage debt due to him from his solicitor is subject to the general rule affecting gifts from a client to his solicitor; and to support such a transaction there must not only be a total absence of fraud, misrepresentation, or even suspicion, but the relation of solicitor and client must at the time have been severed : Morgan v. Minett, 6 Ch. D. 638. SURETY. A man who as surety mortgages his property as a collateral security for the debt of another, is entitled to redeem the other's estate, and is a necessary party (being interested in the equity of redemption and the account) to a suit to foreclose it : Stokes v. Clendon, 3 S wa. 150, n ; and, on paying the debt, is entitled to stand in the place of the mortgagee, and to all the equities which the mortgagor could have enforced, not merely against the principal debtor but also against all persons claiming under him: Drew v. Lockett, 32 Beav. 499; Bowker v. Bull, 1 Sim. N. S. 29; Lancaster v. Eoors, 10 Beav. 154. So also a surety by covenant or bond only, who has actually paid the debt or a part of it, is equally interested, and equally a necessary party to a foreclosure suit against the principal debtor: Gedye v. Malsan, 25 Beav. 310; secus if he has merely covenanted, and has paid nothing: Newton v. E. Egmont, 4 Sim. 574. As against a surety by bond for one advance, the mortgagee, who has made other advances upon distinct securities, does not, on the surety paying off the advance for which he is liable, lose the right of retaining all his securities until payment of the whole amount due: Farebrother y. Woodhouse, 23 Beav. 18 ; nor, except by express stipulation, the power of making further advances and right of tacking incident thereto: Williams V. Owen, 13 Sim. 597. But where A. and B. have joined in mortgaging their estates to C. to secure a sum advanced to A. only, and then A. mortgages his estate to C. for a further advance, B. may redeem his estate upon paying off CH. XX. S. VII.] PAETICULAB PERSONS INTERESTED. 547 the original mortgage debt, and C. cannot as against him hold both estates in respect to the further advance: Bowker v. Bull, 1 Sim. N. S. 29 ; and see Jones v. Smith, 2 Ves. Jr. 372; Aldworth v. Robinson, 2 Beav. 287. A surety for repayment of the amount borrowed as one of a series of loans by a policy-holder on mortgage of his policies, having been com- pelled to pay part of the debt, is entitled to have the proceeds of the poli- cies marshalled in order to obtain repayment: Heyman v. Dubois, 13 Eq. 158. A surety for a mortgagor who has paid off the mortgage is entitled to the benefit of, and to have delivered up to him, all securities obtained from the principal debtor by the mortgagee, Allen v. De Lisle, 3 Jur. N. S. 928; Goddard v. Wliyte, 2 GiS. 449; but he cannot claim the benefit of an indemnity deed given to him by the mortgagor, and also to stand in the place of the mortgagee in respect of what he has paid upon the mort- gage : Coates v. Jenkins, 32 Beav. 337. By 19 & 20 V. c. 97, s. 5, every person who, being a surety for the debt or duty of another, or liable with another for any debt or duty, shall pay the debt, &c., is entitled to have assigned to himself or to a trustee for him evary judgment, specialty, or other security held by the creditor in respect of such debt. This right extends to a judgment against the principal debtor and sureties after it has been satisfied by payment of the debt by one of the sureties : Baichellor v. Lawrence, 9 C. B. N. S. 543. MARRIED WOMAN. Where a wife joins her husband in mortgaging her estate, she is not to be considered as having parted with or affected her estate in the equity of redemption, unless a clear intention to that effect be shown : Jackson V. Innes, 1 Bligh, 104; Ruscombe v. Hare, 2 Bligh N. S. 192. The uses of a settlement may however be defeated by a mortgage by husband and wife of the settled property in exercise of their joint power of appointment: Jones v. Davies, 26 W. R. 554. Where several successive mortgages of the wife's estate were made, a variation in the language of the later deeds was held to show a change of intention, and the estate in the equity of redemption was treated as altered : Barnett v. Wilson, 2 Y. & C. C. 407. A mortgage by a husband of his wife's chattels real, reserving the equity of redemption to himself, is not such an alienation as to destroy her right, on sm-viving, to redeem : Clark v. Burgh, 2 Col. 221 ; and see Hill v. Edmonds, sup. p. 544; Pigott v. P., 4 Eq. 549; McCuUagh v. Littledale, I. R. 9 Eq. 465. If the money borrowed be applied for the husband's benefit the wife is regarded as a surety only, and entitled to have her husband's estate applied in exoneration of her own, and also to redeem the mortgage and stand in the place of the mortgagor: Hudson v. Carmichael, Kay, 613; Huntingdon v. Huntingdon, 2 Lead. Cas. Eq. 1032 ; Robinson v. Gee, 1 Ves. 252; Cleaves v. Paine, 1 D. J. & S. 87; secus if her estate has been mortgaged to pay her own ante-nuptial debts, or the money has not been 548 MORTGAGES. [PART IV. received by the husband but applied for her use; Lewis v. Nangle, Amb. 150; E. Kinnoul v. Money, 3 Swa. 201, n. ; Clinton v. Hooper, 1 Ves. Jr. 173; and an inquiry will be directed on this point: see Thomas v. T., Form 3, sup. p. 544. If the mortgage, though for the husband's benefit, is made in exercise of a joint power of appointment for raising money by mortgage or other- wise, and the only interest of the wife is subject to the power, the prop- erty charged is not the estate of the wife so as to g^ve her the right of exoneration as a surety as against her husband's interest: Sdmlefield v. Lockmood, 4 D. J. & S. 22, 32 Beav. 434. Separate property of a married woman mortgaged by her to secure a sum and further advances to her or her husband was held to be charged with further advances made to the husband alone: Greenough v. Shorrock, 4 N. R. 40. A married woman cannot directly or indirectly mortgage property set- tled to her separate use without power of anticipation, and her interest, during coverture, will be protected, even though she has fraudulently sup- pressed the circumstances of the property: Thomas v. Price, 46 L. J. Ch. 761; Stanley v. S.,7 Ch. D. 589, 26 W. R. 310. On a mortgage of the wife's estate for the husband's debt, reserving the equity of redemption to the vnfe, she was upon his bankruptcy held entitled, the assignees of the husband not claiming the right, to redeem as against the mortgagee, and to a settlement of the property so redeemed upon herself and children: Gleaves v. Paine, 1 D. J. & S. 87. If a woman, married before the Dower Act, joins with her husband in a mortgage of his freehold estate to secure his debt, and the equity of re- demption is limited to the husband alone, she has no right to redeem in respect of her dower, which was extinguished both in equity and at law ; and her right to dower being extinguished she had no property as to which any right to redeem as a surety could arise: Dawson v. Whitehaven Bank, 6 Ch. D. 218 (reversing 4 Ch. D. 639, and discussing and explain- ing Jackson v. Parker, Amb. 687 ; Jackson v. Innes, 1 Bligh, 104). A mortgage by husband and wife of her reversionary interest being to secure advances to her before, and to him after the marriage, the common foreclosure decree was made against both: Lewis v. Poole, 3 Giff. 636. When the wife has joined her husband in mortgaging her property to secure his debt the present form of decree will be a judgment against the husband for payment personally of the amount certified, and in default foreclosure of husband and wife : see Gibbon v. Walker, 38 L. T. N. S. 217. A married woman is bound at once by a decree for foreclosure, and has no day to show cause or to redeem after the coverture has determined: see Mallack v. Galton, 3 P. Wms. 352 ; but the decree ought not to be made absolute at once, even by consent, on an affidavit verifying the amount due: Harrison v. Kennedy, 10 Hare, li. And see Fisher on Mortgage, 268-275. CH. XX. S. Vin.] MORTGAGES BY COMPANIES. 649 INFANT ENTITLED TO EQUITY OP REDEMPTION. The old practice of the Court was not to foreclose an infant without giving him a day after coming of age to show cause against the decree, and against the order for final foreclosure, Williamson v. Gordon, 19 Ves. 114; and since the 1 Wm. IV. c. 47, where, the mortgage being equi- table, a conveyance from an infant Deft was necessary to complete the foreclosure, it has been held that a day for him to show cause should be given: Price v. Carver, 3 M. & C. 157; see the decree there given; and see Walsh v. Trevannion, 16 Sim. 178. An immediate order of foreclo- sure absolute may be made against the infant heir of the mortgagor, where, from the property not being worth the money due, and the Pit offering to pay his costs, such a course was for the benefit of the infant: Croxon v. Lever, 12 W. R. 237. Although it has been held that the Trus- tee Act, 1850, ss. 7, 8, does not alter an infant's rights in case of foreclo- sure: Newbury v. Marten, 15 Jur. 166; the order in a very recent case declared that in default of redemption within six months the infant heir would be a trustee for the mortgagors, within the meaning of the Trustee Act, and ordered a person to convey on his behalf: see Foster v. Parker, Form 4, sup. p. 544; S. C. W. N. (78) 26; and see Fisher on Mortgage, 1084^1089. Section Vm. — Moetgagbs by Companies. 1. Inquiries as to Debentures affecting a Company in course of winding up. Let the following, &c. : 1. An inquiry what debentures or mort- gage securities have been issued or created by the said Association or the directors thereof since the registration of the said Associa- tion; 2. An inquiry which of the debentures are still unpaid or sub- sisting, and what persons are the holders of the same respectively ; 3. An inquiry what property, moneys, or assets of the Association are included in the said several debentures, and the charge or security thereby created ; 4. An account of the principal and inter- est moneys secured by and due under or in respect of the said debentures respectively, and to whom the same respectively are due. Stay proceedings in the action (against the Association) until further order.— Liberty to apply. — Mintingdon v. Coal Con- sumer^ Association {Limited), V.-C. M. at Chambers, 4 Aug. 1876, Palmer, Company Precedents, 408. 660 MORTGAGES. [PAET IV. 2. Declaration of Charge on Real and Personal Property of a Comfany in favor of Debenture-holders — Account — Sale. Declare that Pit and the other holders of mortgage debentures of the company issued under and in pursuance of the deed dated &c. made between, &c. are entitled to a charge on all the real and personal property of the company for securing the repayment of the principal moneys and interest in the said mortgage debentures mentioned ; And Let the following &c. : An account of what is due to the Pit and the other holders of mortgage debentures of the com- pany on the security of the said mortgage debentures and the said deed ; And Let the real and personal property comprised in the said deed and the business of the company be sold as a going con- cern, with the approbation of the Judge ; And Let the money to arise by such sale be paid into Court to the credit &c. — Continue the receiver appointed, and the injunction awarded by the order dated &c. — Adjourn &c. — Perry v. ChMon CoaX Co. (Limited), V.-C. M., 7 July, 1876, Palmer, 410. For declaration that the trusts of a mortgage debenture deed ought to be performed, &o., with accounts of the trust estate therein comprised come to the hands of the trustee* (Defts), of interest due, and of principal secured by the deed, see Hill v. Bristowe, M. K., 15 July, 1876. 3. The Like — Accounts, Inquiries, and Directions — Ord. 1875, XV. r. 1. Let the following, &c. : 1. An account of what is due for prin- cipal and interest to the Pits and the other holders of debentures issued by the Deft company, distinguishing the holders of the A. and B. debentures in the pleadings referred to ; 2. An inquiry of what the property comprised in and charged by the A. and B. deben- tures respectively consists, and in whom the same is vested ; 3. An inquiry what steps ought to be taken for getting in such parts (if any) of the said property as may be outstanding ; 4. An inquiry in what way the property comprised in and charged by the said respec- tive securities can best be realized for the benefit of the Pits and the other debenture holders, and whether a sale or mortgage, or sales or mortgages, of any and what portions of the same is or are neces- sary or desirable for that purpose ; 5. An inquiry whether any and what contracts for the purchase or leasing by the company of any property have been entered into, and what steps ought to be taken in respect thereof. — Continue the receiver and manager. — Adjourn further hearing of this matter without requiring the action to be CH. XX. S. VIII.] MORTGAGES BY COMPANIES. 651 brought on for trial. — Liberty to apply. — Dawson v. Owen, V.-C. M., 11 Nov. 1876, Palmer, 409. For the liie accounts and inquiries, with appointment "of the liquidator of the Deft company as receiver of the property comprised in the mortgage debenture deed without security, see Slater v. Darlaston Steel Co., M. K., 2 June, 1877. 4. Declaration of Priority of Debenture-holders over the General and Unsecured Creditors of a Oompany, with Directions for Payment. This Court being of opinion that all the property, book debts, credits, assets, moneys, and other effects of or to which the com- pany was possessed or entitled at the commencement of the winding up of the said company are subject to the debenture securities and the charges thereby created in favor of the applicants, and ought to be applied in the first instance to satisfj- and provide for, pro tanto, the respective amounts due to the applicants for principal and interest in respect of such mortgage debentures ratably, in pro- portion to the said respective amounts of such mortgage deben- tures, in priority to the general unsecured creditors of the company. Let the liquidators of the company, out of the assets of the said company, paj' and satisfy the said principal moneys due to the said debenture holders, with interest thereon at the rate of £18 per cent per annum (the amount of interest mentioned in the securities) down to the day of payment, and also pay to the said debenture holders their costs of and occasioned by this application, to be taxed &c., including the costs of the summons on the &c., taken out by the said liquidators, and any other the costs of the said debenture holders (if anj') properl3' incurred as mortgagees, all such payments to be made in priority to the payment of the costs hereinafter mentioned, and of the costs of the liquidators of this application, and also previous to any payment to the general and unsecured creditors of the company ; And Let the liquidators, out of the assets of the company retain their own costs and pay the said &c. (certain of the general creditors) their costs of this application and of the said summons, such costs to be taxed &c. — I'he General South American Co. (Zimited);Y.-C. M., 14 March, 1876, S. C. 2 Ch. D. 337, Palmer, 406. 6. Mortgage of Railway — Account of what is due — Appointment of Receivers. Let the following &c. : 1. An account of what is due to the Pit S. for principal and interest upon the security of the indenture of 552 MORTGAGES. [PART IV. mortgage dated &c. 2. An account of what is due for principal and interest to the other mortgagees of the undertaking in the pleadings mentioned who are entitled to rank pari passu with the Pit as creditors of the said undertaking. 3. An inquiry whether there are any other and what incumbrances and charges on the rates, tolls, and sums of money arising and accruing from the un- dertaking of the G. E. Ry. Co., as described in the said Act (the Act under which the company is established) , and what are their priorities with reference to the said mortgagees as between them- selves. — Direction, for appointment of A., the secretary, and B., the chief officer of the company, as receivers, without salary, of the rates, tolls, and sums of money arising and accruing from the said undertaking, and for payment out of the moneys received by them of all expenses proper and necessary for the maintenance, management, and working of the raUwaj'. And the Defts, the G. E. Ey. Co., by their counsel admitting that their net income is Inore than sufficient to keep down the interest on their mortgages. Let the receivers keep down interest, pass their accounts, and pay balances into Court. — Adjourn, &c. — Liberty to apply. — Smith V. O. M By. Oo., V.-C. M., 2 July, 1867 ; Earl of Essex v. Hatfield db St. Allan's By. Co., V.-C. B., 19 Nov. 1870. 6. LloyWs Bonds — Declaration of Rights of Holder. Vary so much of the said order as declares that so much of the moneys advanced by L. and secured by Lloyd's bonds, and applied for the benefit of the C. & T. Ry. Co., constituted a debt in equity, payable out of the assets of the company, and which must be paid before any of the shareholders take any part of the funds of the company ; and so much of the said order as directed an inquiry how much (if any) of the money purported to have been advanced by the said L., and to be secured by Lloyd's bonds, was applied for the benefit of the said company. — And in lieu thereof. Declare that the receipt and expenditure b3' the directors of the company in payment of any sums advanced on or procured by means of the deposit of the alleged bonds, was pro tanto an adoption by the company of the transactions ; and having regard to the representa- tions contained in the alleged bonds, the moneys so expended con- stituted debts owing from the company ; Let an inquiry be made whether the company had the benefit of any and what' expenditure of any sums recoverable from the company, of any and what sums advanced on or procured by means of any and which of the deposits of the alleged bonds, and whether any and which of the sums so expended still remain unpaid by the company. — Be The Cork & Youghal By. Co., L. C. and L. J. G., 4 Ch. 748. CH. XX. S. VIII.J MORTGAGES BY COMPANIES. 653 7. Railway Rent-charges^ and Mortgage Debentures — Priorities declared. Dbclake that the owners of the several rent-chai^es mentioned in the Chief Clerk's certificate, dated &c., are entitled to a charge upon all the lands of the company comprised in their several deeds of charge, and upon all the earnings and profits of the undertaking of the company in priority to all other the creditors of the com- pany ; and that they are as between themselves entitled to be paid such rent-charges pari passu ; And that the holders of the several mortgage debentures mentioned in the said certificate are entitled to a charge upon all the profits of the undertaking of the said com- pany in priority to all other the creditors of the said company, except the owners of the said rent-charges, and that they are as between themselves entitled to such charges pari passu. — Eyton V. Denbigh & Corwen By. Co., M. R., 7 Eq. 439. 8. Inquiries as to Rent-charges granted by a Railway Company — Application by Receiver of Balances after Payment of the Working Expenses in Satisfaction of the Arrears of Rent-charges. Upon motion &c.. Let, in addition to the inquiry directed by the order dated &c., the following &c. : 1. An inquiry what rent- charges have been granted by the Defts, the M. Ry. Co., to vendors to them of lands purchased for the purposes of their undertaking. 2. An inquiry who are now entitled to such rent-charges respec- tively. 3. An inquiry how such rent-charges respectively are secured. 4. An inquiry what is now due in respect of such rent- charges respectively. And Let, notwithstanding the said order, dated &c., the receiver appointed by the order, dated &c., apply any balances now or hereafter in his hands, after payment of the working expenses of the railway, in meeting arrears of rent-charges and the accruing payments thereof ratably pari passu, so far as the same will extend. And Let the Pit be at liberty to attend the proceedings under the said order, dated &c. ; and the costs of the Pit of this motion are to be costs in this action, and the costs of G. and B. are to be costs in the above-mentioned matters. — Forster v. The Manchester S Milford Ry. Co., Re The Manchester, <&c. Co., Be The Railway Companies Act, 1867, V.-C. H., 9 Dec. 1875. For a decree, declaring Pit (mortgagee) entitled to a charge on tolls, toll-gates, and toll-housea on turnpike roads, and Pit offering to pay off other mortgagees Defts, directing them thereupon to assign and transfer to 554 MOBTGAGES. [PAET IV. him; with directions for accounts, and a receiver of toUs and profits; and as to application of sums received; and continuing an injunction against the trustees reducing the tolls ; and Fit to pay the costs of the other mort- gagees, and add them to his own ; the trustees not to be paid any costs to the prejudice of the rights or interests of the Fit, and to be restrained from making any mortgage for such costs, see L. Crewe v. Eddleaton 1 D. & J. 111. For order in Chambers, in a smt to foreclose a mortgage of canal shares and tolls, where successive foreclosures had been ordered in the decree, directing the Fit in possession to appropriate the net moneys re- ceived by him for tolls and otherwise, after the first day fixed for pay- ment, in satisfaction of the subsequently accruing interest, see Gumey v. Duckett, V.-C. S., 29 July, 1853. NOTES, By the Companies Act, 1862, s. 43, a register is to be kept in which aU mortgages or charges affecting property of a limited company are to be entered, with a short description of the property mortgaged or charged, the amount of charge created, and the names of the mortgagees or persons entitled to such charge. In case of non-entry a penalty, not exceeding £50, is imposed upon every director, manager, or other officer of the company who knowingly and wilfally authorizes or permits the omission of such entry; the regfister is to be open to inspection by any creditor, or member of the company; with penalties in case of refusal of inspection, and power to a Judge in Chambers by order to compel inspection. Omission to register a mortgage does not render it void as against the company: Exp. Vcdpy and Chaplin, 7 Ch. 289; nor will the priority of mortgagees over the general creditors of the company be affected by im- perfect registration: The General South American Co., 2 Ch. D. 337; secus, if the persons advancing money on debenture or mortgage are themselves directors or officers of the company: J%e Native Iron Co., 2 Ch. D. 345; The Wynn Hall Coal Co., 10 Eq. 515; Exp. Valpy and Chaplin, sup. ; and the officer whose duty it is to make the entry or see it made (including the solicitor for the company in the matter) not only incurs a penalty but loses the benefit of the security as against the gen- eral creditors of the company: S. C; and see The General Provident Co., 17 W. R. 514; Brice, Ultra Vires, 632. But it has been since held that the rule that directors or officers of a company cannot set up their unregistered mortgage from the company as against creditors of the company, is personal, and does not extend to the case of those claiming under the director or officer as his sub-mort- gagees and not connected with the company: The International Pulp, ^c. Co., 6 Ch. D. 556. If the omission to register has not been knowingly or wilfully author- ized by the directors, the mortgagees, but arises from the omission of the secretary to comply with their direction, they do not lose the benefit of the security, and having realized before the winding-up will not be ordered to refund: Re Hackney Newspaper Co., 3 Ch. D. 689. Future calls may be validly mortgaged if duly authorjaed by the CH. XX. S. VIII.] MORTGAGES BY COMPANIES. 655 memorandum and articles of association: The Phcenix Bessemer Steel Co., 4A L. J. Ch. 683; notwithstanding the doubt expressed in Stanley's Case, 4 D. J. & S. 407. But under a power to pledge, mortgage, or charge the works, property, and effects of the company, the proceeds of a future call cannot, though the proceeds of a call already made but not paid can, be charged: Re San- key Brook Co. (2), 10 Eq. 381; and see King v. Marshall, 33 Beav. 565. In the absence of any direct prohibition in the articles, a joint-stock company may secure a past debt by deposit of title-deeds: Re Patent File Co., 6 Ch. 83. Where directors of a company have power to create a charge and have intended so to do, effect will be given to the intention, though it has been incompletely carried out: The Strand Music Hall Co., 3 D. J. & S. 147. Powers are also given to companies by the Companies Clauses Acts, 1863, 1869 (26 & 27 V. c. 118, 32 & 33 V. c. 48), to raise by means of debenture stock at a fixed and perpetual preferential interest, payable as the company thinks fit, all or any part of the money which they are authorized to raise by mortgage or bond, but the issue must be authorized by the company according to 26 & 27 V. c. 118, s. 22; and see Fisher on Mortgage, 1137, &c. ; Buckley, 146 ; Brice, Ultra Vires, 255 et seq. Debentures may be issued by a company under a general power of borrowing, in part discharge of existing debts: Inns of Court Hotel Co., 6 Eq. 82. And as to the power of directors to borrow money on behalf of their company, see Lindley, 283; Palmer, 105, 386, 402, 414. Debentures charged on the undei-taking or on property belonging to a company for the time being, give the holders a charge upon the land and other property of the company in priority to the general creditors of the company: The Marine Mansions Co., 4 Eq. 601; The Panama, Sfc. Co., 5 Ch. D. 318; The General South American Co., 2 Ch. D. 377, Form 4, sup. p. 551 ; and to the expenses of carrying on the business by the liqui- dators, as against whom — subject only to the cost of realizing — the fund belongs to the debenture holders : The Regent's Canal Ironworks Co. , 3 Ch. D. 411. This right of debenture holders may be asserted by summons: The General South Am. Co., The Marine Mansions Co., sup. Bailway companies being regarded as permanent undertakings stand on a different footing, see The Panama, Ifc. Co., 3 Ch. 318, 321; and in the case of railway mortgage debentures made in the form given in the Companies Clauses Act, 1845, Sohed. C, the remedy of the holder is by action to recover the amount due for principal and interest, or by the appointment of a receiver of the toUs or sums liable to the payment of such principal and interest — "the produce of the fruit-bearing tree " — but he does not thereby acquire a specific charge upon the surplus land^ of the company or the proceeds of their sale, so as to entitle him to a receiver of the sale moneys of interim rents: Gardner y. L. C. ^ D. By. Co., 2 Ch. 201; and see TTie Imp. Merc. Credit Assoc, v. The Newry §• Armagh By. Co., It. R. 2 Eq. 1; Holland v. Cork By. Co., lb. 417. By the Debenture Stock Act, 1871 (34 V. c. 71), trustees, &c., when authorized to invest in the mortgages or bonds of a railway or other 556 MORTGAGES. [PAET IV. company, may, unless expressly forbidden, invest in the debenture stock by means of which such company is empowered to raise the money which it may raise on mortgage or bond. Under 15 & 16 V. c. 86, s. 55, the Court, upon the interlocutory ap- plication of a creditor whose debt is secured upon the real estate of a company, may order an immediate sale of the property comprised in the securities: Davis v. Ashwin, 28 W. E.. 139. Lloyd's bonds, which are given as securities for work done and mate- rials supplied to a company, are instruments under seal containing an acknowledgment that the company "stand indebted to in the sum of £ for money due and owing from the company to the said " with a covenant by the company for themselves, their successors and assigns, to pay the said sum upon the day of , with interest thereon at per cent from the date thereof until payment: see White V. Carmarthen Ry. Co., 1 H. & M. 786. Notwithstanding 7 & 8 V. c. 85, s. 19, which imposes penalties on a company for giving loan notes or securities, the holders of these bonds have a valid claim against the assets of the company for sums due on the bonds so far as the company have de facto had the benefit of the sums in respect of which the bonds were given: Re Cork §• Youghal Ry. Co.,i Ch. 748 ; and so far as the covenant is given iu respect of a valid debt actually due, as to a contractor for works, &o. : White v. Carmarthen Ry. Co., sup. Such bonds cannot, however, be validly issued for the mere purpose of raising money on loan: Chancers v. Manchester, Sj'c. Ry. Co., 5 B. & S. 588; FourUainey. Carmarthen Ry. Co., 5Eq. 316. By the Mortgage Debentures Acts, 1865, 1870 (28 & 29 "V. c. 78, as amended by 33 & 84 V. o. 20), all companies incorporated and carry- ing on business under the Companies Act, 1862, or under any Act whose qbjects are the advancing of money upon the securities therein defined (Act 1865, s. 3), and the borrowing of money on transferable mortgage debentures, are authorized upon the terms and subject to the provisions and restrictions mentioned in the Acts, to borrow money upon mortgage debentures, which are to be registered in the Land Registry Office, and when aJl registered securities for the time being shall be charged with payment of the principal, &c., payable in respect of all the outstanding mortgage debentures of the company, and until discharged from regis- tration shall not be applicable for any other purpose (Act 1870, s. 7). The securities upon and in respect of which mortgage debentures may be founded and issued are defined by the Act 1870, s. 4. Upon default by the company, after notice of an intention to redeem, in procuring the discharge of the securities from the mortgage debentures issued by them, the person entitled to redeem, who has given notice of his intention to redeem, may by summons (in the Chancery Division) obtain an order for the discharge of the security in the register: Act 1870, ss. 8, 9. On default of payment of interest or principal money on a mortgage debenture, the person entitled thereto may apply for and obtain the appointment of a receiver, by petition, or by summons at Chambers (iu the Chancery Division) ; and no such application shall in any way preju- dice or affect the right of any person entitled to any such mortgage deben- ture to sue for any such interest or principal: Act 1865, s. 42 el seq. CH. XX. S. IX.] EQUITABLE MORTGAGES. 657 Section IX. — Equitable Mortgages. 1. Specific Performance of Agreement to execute a Mortgage. . Decxaee that the covenant or agreement on the part of the Deft contained in the indenture dated &c. ought to be specifically per- formed and carried into execution, and decree the same accord- ingly ; And Let the Deft H. execute to the Pit a proper indenture of mortgage of the premises comprised in the several agreements dated &c., in the pleadings mentioned, according to the terms of the covenant or agreement in the said indenture dated &c., con- tained ; And Let alL proper parties join therein as the Judge shall direct ; such indenture of mortgage to be settled by the Judge in case the parties differ ; And Let the Deft H. deliver up on oath to the Pit the title-deeds «&c. ; And Let the Deft H. pay to the Pit his costs of this cause (action), including the costs of such indenture of mortgage ; such costs to be taxed &c. — Liberty to apply. — Her- mann V. Hodges, L. C. for M. R., 16 Eq. 18 ; and see Ashton v. Corrigan, V.-C. W., 13 Eq. 76 ; Jones v. Greatwood, M. R., 18 Jan. 1853. And for decree for specific performance of an agreement by the owners of five sixths of the equity of redemption to sell to the equitable mort- gagee of the entirety, and for payment of one sixth of the mortgage money by the owner of the other sixth, and, in default, foreclosure against him; and if he redeem the mortgagee, for a partition between them, see Dames v. D., V.-C. S., 6 Jur. N. S. 1320. 2. Equitable Mortgage — Appointment of Receiver — Accounts — Conveyance in Default of Payment. DiEECTiONS to appoint receiver. — " And Let the person so to be appointed pass his accounts &c., and pay the balances which shall be certified to be due from him to the Pit, he by his counsel under- taking to account for the same in the accounts hereinafter directed ; " And Let the following &c. : 1. An account of what is due to the Pit for principal and interest in respect of his equitable mortgage in the pleadings mentioned, and for his costs of this suit, to be taxed ; 2. An account of the balances of the rents and profits of the estates so to be paid to the Pit as hereinbefore directed ; And Let the same be deducted from what shall appear to be due from the Deft for such principal, interest, and costs as aforesaid ; And Let upon the Deft paying to the Pit what shall be certified to be due to him for such principal and interest as aforesaid, together with his said costs when taxed, after such deductions as aforesaid, within six calendar 558 MORTGAGES. [PABT IT. months after &c., at such &c., the Pit deliver all deeds &c. ; But in default of the Deft paj'ing &c., Let the Deft convey &c. — Creswick V. Harrison, V.-C. T., 30 April, 1852 ; and see Meller v. Woods, 1 Keen, 16, 23. For like order, where an incumbrancer, subsequent to the Pit, was to redeem him or be foreclosed, with direction for the receiver to pay the subsequent rents into Court, and with liberty to apply respecting them, see Holcombe v. Hoskins, V.-C. S., 15 Jan. 1857. For decree in case of infants, see Price v. Carver, 3 My. & C. 164; and for decree for conveyance of estates mortgaged by deposit, and foreclosure of estates legally mortgaged, with receiver of the former, Holmes v. Turner, 7 Hare, 369, n. 3. Equitable Mortgage — Absolute Convet/ance free from all Equity of Redemption. " Declare that the title-deeds relating to the estate in question having been deposited by A., the bankrupt, in the hands of the Pit, the Pit is entitled to be considered in this Court, as if he were a mortgagee of the hereditaments therein comprised ; and decree the same accordingly ; And Let an account be taken of what is due for principal money advanced on the said deposit, and for interest thereon, and for his costs of this suit (action) , to be taxed &c. ; And Declare, that such principal, interest, and costs are to be con- sidered as a charge upon the said hereditaments ; And Let, upon the Deft T, paying to the Pit, within six calendar months after &c., at such &c., the Pit deliver up all deeds &c. ; But Declare, that in default &c., the Pit wiU be entitled to the said heredita- ments free and clear of and from all right, title, interest, and equity of redemption of, in, and- to the same, and to have an absolute con- veyance thereof accordingly' ; And in that case, Let the Deft execute such conveyance thereof to the Pit, to be settled &c. in case the parties differ." — Liberty to apply. — Nezcton v. Aldous, L. C, 18 July, 1804, said to have been penned by Lord Eldon ; and see Ball V. Harris, 8 Sim. 497. 4. Equitable Mortgage — Foreclosure. Declare that the title-deeds relating to the estate in question mentioned in the letters of the day of &c. in the pleadings mentioned, having been deposited by the said J. deceased in the hands of the Pit, the Pit is entitled to be considered as if he were a mortgagee of the hereditaments therein comprised, and order and decree the same accordingly ; And Let the following &c. : 1. An CH. XX. S. IX.] EQUITABLE MORTGAGES. 559 account of what is dae to the Pit for principal money advanced on the said deposit and secured by his said equitable mortgage, and for interest thereon at the rate of £4 per cent per annum, and for his costs of suit (action), to be taxed &c. ; 2. An account of the rents and profits of the said hereditaments received by the Pit or by any other person &c., or which without the wilful default &c., and the amount of such rent so received is to be deducted from what shall appear to be due on the account No. 1 ; And Declare that such principal, interest, and costs, the total amount to be certified, are to be considered as a charge upon the said hereditaments ; And upon the Deft paying to the Pit &c. ; Let the Pit deliver up &c. ; But in default &c.. Declare that the PJt will be entitled to the said hereditaments free and clear of and from all right, title, interest, and equity of redemption of, in, and to the same, and to have an absolute conveyance thereof accordingly ; And in that case Let the Deft execute a proper conveyance thereof to the Pit, to be settled &c. — Liberty to apply. — James v. t/l, L. J. J. for V.-C. W., 16 Eq. 153 ; Backhouse v. Charlton, V.-C. M., 26 W. R. 504. 5. Equitable Mortgage of Shares in Trading Partnership — Foreclosure — Redemption or Purchase by the other Partners. An account of what is due to Pit for principal and interest as such incumbrancer as in the pleadings mentioned upon the 5/64 shares in the S. Coal Co., assigned to R. {the original mortgagor) by the indenture dated &c. (the partnership deed), and for her costs of this suit, to be taxed &c., and upon the Deft F. paying to the Pit what shall be certified to be due for principal, interest, and costs as aforesaid, within six months after the Chief Clerk shall have made his certificate, at such time and place &c.. Let the Pit assign to the Deft F., or to whom he shall direct, all her right and interest in the said five shares, free and clear of and from all in- cumbrances done by her, or by G. the testator in the pleadings named, or any person claiming by, from, or under her or the said G., and deliver up all deeds &c. ; But in default of the Deft F. paying unto the Pit such principal, interest, and costs as aforesaid by the time aforesaid. Let the Deft F. from thenceforth stand abso- lutely debarred and foreclosed &c. ; And in case of such foreclosure compute subsequent interest and tax subsequent costs ; And Let Defts B., C, &c. {the other partners) , or any or either of them, be at liberty to pay unto the Pit what shall be certified to be due to her for principal, interest, and costs, together with such subsequent interest and costs as aforesaid, within one month after the Chief 560 MORTGAGES. [PAET IV. Clerk shall have made his subsequent certificate, at such time and place &c., and upon such payment by any or either of the last- named Defts. — Direction to Pit to assign &c. to such of them the Defts B., C. &c., as shall make such payment, or to such of them as shall redeem, or as he or they making such payment shall appoint ; But in default of the last-named Defts, or any of theni, paj'ing unto the Pit such principal, interest, and costs, and subse- quent interest and costs as aforesaid by the time aforesaid, Let the following &c. : 1. An account of the net proceeds of the said col- lieries belonging to the S. Coal Co., since the filing of the Pit's bill ; 2. An account of the debts and liabilities of the said company, which the said company is now liable to pay ; And Let an inquiry be made what proportion oi such debts and liabilities as between the Pit and the other partners is properly attributable to the five shares so as aforesaid subject to the Pit's said incumbrance. — Adjourn &c. — Liberty to apply. — Bedmayne v. Forster, M. R., 2 Eq. 467. 6. Declaration of Equitable Charge — Sale. Dkclaee that the Pits are entitled by virtue of the deposit of title-deeds and the agreement relating to or accompanying the same in the pleadings mentioned to an equitable lien or charge upon the hereditaments comprised in the deeds, for securing to the Pits the principal sum- of £ and the interest thereon, and de- cree the same accordingly. — Usual account of amount due to Pits for principal, interest, and costs ; And Let upon the Deft paying to the Pits what shall be certified to be due on taking the said account within one calendar month after the date of the Chief Clerk's cer- tificate, at such time and place as shall be thereby appointed, the Pits deliver upon oath all deeds &c., but in default of the Deft pay- ing unto the Pits what shall be certified to be due as aforesaid. Let the said hereditaments, or a sufficient part thereof, be sold with the approbation of the Judge ; And Let the money to arise by such sale be paid into Court to the credit &c., and be applied in pay- ment of what shall be certified to be due to the Pits for principal, interest, and costs as aforesaid, and subsequent costs. — Liberty to apply to the Judge in Chambers in reference to the purchase- money, and generally. — Woof'v. Banron, L. J. J. for V.-C. W., 25 March, 1873, W. N. (73) 71. In this case the deposit of deeds was accompanied by an agreement to execute a legal mortgage with the usual power of sale, which was held in the events that had happened to amount to an immediate power of sale in favor df Pits. CH. XX. S. IX.] EQUITABLE MORTGAGES. 661 7. Mortgage of Stock Certificates hy Deposit ^- Order to Transfer — Sale in Defwult of Payment. Declaee that the four certificates, respectively dated &c. under the seal of the Deft company, of the title of the Deft M. to four several sums of £ , each making together £ , perpetual de- benture stock numbered &c. in the Deft company in the pleadings mentioned, having been deposited in the' hands of tlie Pit by the Deft S., the Pit is entitled to be considered in this Court as if he were a mortgagee of the stock therein comprised, and'decree the same accordingly ; And Let the Deft M. and the Deft company do and concur in all acts which may be necessary to complete the transfer of the said stock by the Deft M. to the Pit; And Let an account be taken of what is due to the Pit for principal money advanced on the said deposit and for interest thereon, and for his costs of this suit, to be taxed &c. ; And Declare that such principal, interest, and costs are to be considered as a charge upon the said stock ; And upon the said Defts S. and M., or either of them, paying to the Pit what shall be certified to be due to him within six calendar months after the date of the Chief Clerk's certificate at such time &e.. Let the Pit retrans- fer the said stock to the Deft M. or to whom he shall appoint ; And in default of the said Defts paying to the Pit what shall be so certified to be due to him as aforesaid by the time aforesaid. Let the said stock be sold by the Pit ; And Let out of the money to arise by such sale, and any dividends to accrue on the said stock, the Pit be at liberty to retain what shall be so certified to be due to him as aforesaid, together with subsequent interest to be certified by the Taxing Master, and his subsequent costs of this suit, to be taxed &c. ; And Let the Pit S. within fourteen days from the date of the Taxing Master's certificate pay to the Deft M. the residue, if any, of the money to arise by such sale, and of the said dividends (the amount thereof if required by the Defts S. and M., or either of them, to be verified byaflidavit or statutory declaration). — Liberty to apply. — Smithers v. 8., M. E., 25 Jan. 1875. 8. Sale at Suit of Equita&le Mortgagee hy Bep&sit of Baihvay Debentures. Let an account be taken of what is due to the Pit for principal and interest on the security of the deposit of twenty-one bonds of the Canada &c. Ey. Co. in the pleadings mentioned, and for his costs of this suit (action), such costs to be taxed &o. ; And Let the said twenty-one bonds be forthwith sold by public auction with 562 MORTGAGES. [PART lY. the approbation of the Judge ; And Let the Pit be at liberty to bid at such sale ; And Let the money to arise by such sale be applied towards payment of what shall be certified to be due to the Pit for principal, interest, and costs as aforesaid, and be in the mean time paid into Court to the credit of &c. — Liberty to apply. — Carter V. Wake, M. E., 4 Ch. D. 605. 9. Equitable Mortgage of Policy of Assurance hy Deposit. Declare that the deposit of the policy of assurance and the memorandum dated &c., in the pleadings respectively mentioned, created an equitable mortgage upon the money secured by the said polic}', and to be received thereunder in favor of the R. Bank for what on taking the account hereafter directed shall appear to be due to the said Bank for principal, interest, and costs, as herein- after is mentioned ; And Let an account be taken of what is due to the said Bank for principal and interest on the said mortgage secu- rity, and for all sums paid by the said Bank for premiums on the said polic}-, with interest thereon from the time such premiums were respectively paid, and for their costs of this cause (action), such costs to be taxed &c. ; And Let upon the Deft S. paj'ing to the said Bank what shall be certified to be due to the said Bank for such principal, interest, and costs as aforesaid, within &c., at such &c., the said Bank deliver the said policy and memorandum and any documents relating to the said mortgage securities in the custody or power of the said Bank upon oath to the Deft S. ; but in default of the Deft S. paying &c. by the time aforesaid. Declare that the said Bank will be entitled to an absolute assignment of the said policy from the said Deft; And Let the Deft S. execute to the Pit (public offlcer), or as he may direct, a proper assignment thereof, and of all bonuses and accumulations to accrue thereon. — Liberty to apply. — Shand v. Stansfeld, V.-C. W., 18 Nov. 1861. For order upon a banking company, with whom title-deeds had been deposited in consideration of a loan of £ — — for seven days, to delivei- up the title-deeds free from all claims made by the banking company, they not having fulfilled the condition on which the deeds were deposited, see Burton v. Gray, M. R., 3 March, 1873 (affirmed 8 Ch. 932). NOTES. EQUITABLE MORTGAGES. An equitable mortgage may be created: (a.) By actual mortgage of the equity Of redemption subject to a prior legal mortgage. CH. XX. B. IX.] EQUITABLE MORTGAGES. 663 (J.) By a written agreement to execute a mortgage, see Dighton v. Withers, 31 Beav. 423; Eyre v. M'DoweU, 9 H. L. C. 619; of which specific performance may be enforced: Hermann v. Hodges, 16 Eq. 18; Ashton V. Corrigan, 13 Eq. 76; Jortes v. Greatwood, sup. p. 557. (c.) By a written agreement to deposit title-deeds, e. g. a lease when granted: Exp. Orrett, 3 Mont. & A. 153; or by a written direction or con- sent that the deeds be retained as a security: Fenwick v. Potts, 8 D. M. & G. 506; and see Lloyd v. Attwood, 3 D. & J. 614; but not by mere parol agreement: see Exp. Coombe, 4 Madd. 249; and cases cited 1 Lead. Cas. Eq. p. 735. (rf.) By a deposit of title-deeds, or material evidences of title, with in- tent to pledge the property: Russel v. R., 1 Bro. C. C. 269, 1 Lead. Cas. Eq. 726; Edge v. Worthingion, 1 Cox, 211; with or even without a memo- randum or written agfeement to give a mortgage : Exp. Wright, 19 Ves. 258; Exp. Mountfort, 14 Ves. 606. If, however, the deposit of deeds as a security for a debt be accompanied by a written document or memorandum, the terms of that document must be referred to in order to ascertain, control, or limit the exact nature of the charge: Shaw v. Foster, L. R. 5 H. L. 321, 340; Burton v. Gray, 8 Ch. 932, sup. p. 562 ; Sporle v. Whayman, 20 Beav. 607 ; and parol evidence is not admissible to contradict it: Exp. Coombe, 17 Ves. 369. But evidence may be given of a subsequent parol agreement to alter the original agreement: Exp. Kensington, 2 V. & B. 79; Ede v. Knowles, 2 Y. & C. C. 172 ; and the security thereby created may be made to extend to all further advances, either by a parol agreement at the time or by a similar agreement when the further advances are made: Exp. Langslon, 17 Ves. 227; Exp. Whitbread, 19 Ves. 209; Miller Eq. Mortgages, 11, &c.; Spence, vol. ii. pp. 777, 781. A deposit of deeds implies a mortgage of all the property comprised therein: Ashton v. Dalton, 2 Coll. 565; and though the documents actually deposited were not all specified in the memorandum, the whole have been held to be included in the security: Ferris v. Mulling, 2 Sm. & G. 378. If deeds be delivered to enable a legal mortgage for securing an exist- ing debt to be prepared, there is an equitable mortgage until the legal mortgage is completed; secus if to secure a fresh loan yet to be made: Keys \. Williams, 3 Y. & C. 55; Exp. Bruce, 1 Rose, 374; Hockley v. Bantock, 1 Russ. 144; and see cases cited 1 Lead. Cas. Eq. 733. An equitable mortgage to bankers for past as well as future advances may be created by letter and memorandum, without fresh delivery of deeds which were originally deposited with them for safety: Exp. Farley, 1 Mont. D. & De G. 683. A valid equitable mortgage may be created though a portion only of the deeds necessary to prove the title be deposited, provided the deposit was made for the purpose of creating a mortgage: Lacon v. Allen, 3 Drew. 579; Daw v. Terrell, 33 Beav. 218; Exp. Wetherell, 11 Ves. 400; and that the deposits of early deeds, accompanied by a letter stating that they were all the material deeds relating to the property, gave an equitable charge which was not postponed to a subsequent charge created by deposit without notice of such prior charge or later deeds, see Dixon v. Muckles- ton, 8 Ch. 155; Roberts v. Croft, 2 D. & J. 1, 24 Beav. 223. 564 MOETGAGES. [PiRT IT. Possession of the title-deedsiof another raises a primd, facie presump- tion that they are held as a security for an advance, so as to give the holder the right as an equitable mortgagee to a receiver: Badger v. B.., 11 W. R. 160; and see Fisher on Mortgage, 36; Russel v. R., 1 Lead. Cas. Eq. 731, 749. But the unexplained possession by a creditor of title-deeds, without any evidence to connect them with a debt long antecedent, is not suflScient to support an equitable mortgage: Chapman v. C, 13 Beav. 308; Dixon v. Mnckleston,. 8 Ch. 155. So also the mere possession, by a mortgagee of freeholds, of the deeds relating to leaseholds^ belonging to the same ownrar, did not extend the operation of the mortgage deed nor give any lien on the leaseholds for the money advanced: WardleY. Oakley, 36 Beav., 27. If deeds be deposited with a partnership the security will not prima facie cover advances made after a change in the members of the partner- ship, though on parol proof of a contrary intention a redelivery of deeds to tiie new firm will be presumed: Emp. Kensington,. 2 V. & B. 79; Exp. Nettleship, 2 M. D. & De G. l24. If shares belonging to a partner are deposited with a bank to secure his separate account, they do not, on becoming afterwards the. property of the firm, give the bank any lien upon them for a debt of the partnership: The City Bank Case, 3D. F. & J. 629. . Under the Registration of Titles Act, 1862 (25 & 26 V. c. 53), s. 78, and the Land Transfer Act, 1875 (38 «e.39 V. c. 87), s. 81, the deposit of the land certificate in the case of freehold land, and of the office copy of the registered lease in the case of leasehold land, is equivalent to a deposit of the title-deeds for the purpose of creating a lien on such land; but under the former act (s. 63) an equitable mortgage or lien; on registered land will not be created by a deposit of the deeds. A legal mortgagee may make an equitable sub-mortgage by deposit, and an equitable mortgage! by deposit may be. sub-mortgaged by redeposit.or transfer of the deeds without depositing the memorandum given on the original deposit: Exp, Smith, Re Eildyard, 2 IVL D. & De G. 587; but the transferee or derivative mortgagee must deliver the deeds to the original mortgagor on being paid all that is actually due on the original depositor mortgage, although a larger sum be due on the second security: see Mat- thews V. Wallwyn, 4 Ves. 118 ; Expi. TuffneU, 4 D. & C. 29. A solicitor having paid for his client a debt secuied by deposit and taken the deeds, was held to have received them not as solicitor (so as to give him a lien for his costs) but as equitable mortgagee by transfer: Vaughan v. Vanderstegen (Annesley's Case), 2 Drew. 409. A debt secured by equitable mortgage will (in the absence, of evidence to the contrary) bear interest at four per cent: Kerr's Policy, 8. Eq. 331, Lippard v. Ricketts, 14 Eq. 291. An equitable deposit with memorandum of charge by the heir or dev- isee will pro tanto defeat the right of creditors of the ancestor or testator against the estate as,.assets under 3 & 4 Wm. IV. c. 10.4: British Mutwii Co. V. Smart, 10 Ch. 567 (overruling Carter v. Sanders, 2 Drew. 248). Equitable mortgages by deposit of deeds with a memorandum are within the operation of Locke King's Act (17 & 18 V. c. 113) : CokbyY.C., 2Eq^. CH. XX. S. IX.] EQUITABLE MORTGAGES. 665 803; Pembroohe v. Friend, 1 J. & H. 132; and the absemoe of a memoran- dum does not take an equitable mortgage by deposit out of the operation of the Act: Davis v. D., 24 W. R. 962. An equitable mortgagee being liable to all the equities -which afEect the depositor, see Parker v. Clarke, 30 Beav. 54, does not, if deeds have been deposited with him in breach of a trust, of which he has, or might have got, notice before getting in the legal estate, acquire any right against the c. q. trustee: Baillie v. UPKewan, 35 Beav. 177; Manningfordx. Tele- man, 1 Coll. 670-; OrCigosay. Brown, 47 L. J. Ch. 168; and see StrougUll V. Anstey, 1 D. M. & G. 635, 648, as to the necessity of inquiry in the case «f persons taking mortgages from trustees. REMEDIES OF EQUITABLE MORTGAGEE. An equitable mortgagee has the same right as a legal mortgagee of bringing an action to realize his security, and all the remedies incident to a legal mortgage: see Carters. Wake, 4 Ch. D. 605, 606; and the de- cree, as in Newtony. Aldoits, Form ^,sup. p. 558, will declare him entitled to be considered as a mortgagee of the premises (or that his deposit oper- ated as a mortgage), to an account, &o., payment, and in default that he is entitled to the premises free of all equity of redemption, and to an absolute conveyance from the mortgagor as a trustee of the legal estate for him, which will be directed accordingly: see Marshall v. Shrewsbury, 10 Ch. 250, 254. Considerable doubt havingttrisen whether the remedy of a mortgagee by deposit of deeds with or without a memorandum was foreclosure or sale, it is now settled that his remedy is foreclosure and not sale: James v. J., 16 Eq. 153, 21 W. R. 522 (and authorities there collected); Backliouse V. Charlton, 26 W. R. .504; Samble v. Wilson, 5 N. R. 395; and see Fisher on Mortgage, 508, 510; 2 Jones on Mortgages, s. 1572. Acting, however, under the power given by 15 & 16 V. c. 86, s. 48, and without reference to the former distinction between sale and foreclosure, the OouTt lias the same power of directing a sale instead of a foreclosure, where the deposit of deeds is accompanied by an agreement to execute a legal mortgage with a power of sale, as in the case of an actual legal mortgage: Woof v. Barron, W. N. (73) 71 ;(decided within a fortnight after James v. J. by the same Judge, L. J. James) : Hards v. King, M. R., 9 Dec. 1873, Reg. Min. 123. In the case of a pledge of personal chattels the remedy is by order for sale only: Carter v. Wake, 4 Ch. D. 605, Form 8, sup. pp. 561, 562. So also where the equitable security is only a charge or lien upon the estate without any right to call for a complete legal security: Fisher on Mortgage, 508; or the right to a legal mortgage is excluded by the terms of the agreement: Temiantv. Trendhard, 4 Ch. 537; Sporle v. Whayman, 20 Beav. 607. A person with whom a lease has been deposited ^s a security for a debt is not liable for the rent and covenants. He may file a bill for foreclosure and to have the lease assigned to him, or for a sale: Moores v. Choat, 8 Sim. 508, 523; but the lessor cannot compel him to take a legal assign- 566 MORTGAGES, £PART lY. ment, and render himself liable on the covenants, though he be in posses- sion and have paid rent: Moore v. Greg, 2 Ph. 717; Walters v. N. Coed Co., 5 D. M. & G. 629 ; Cox v. Bishop, 8 D. M. & G. 815. If the decree be for a conveyance, it may direct possession to be given : Price V. Carver, 3 My. & C. 164 ; but this direction is not inserted as of course. An equitable mortgagee may obtain a receiver : Form 2, sup. p. 557 ; Curling v. M. Townshend, 19 Ves. 633; Exp. Alexander, 2 G. & J. 277; Shakel V. D. Marlborough, 4 Madd. 463; Bodger v. B., 11 W. K. 160. Equitable mortgagees, by deposit of title-deeds of a bankrupt, may bring their action of foreclosure in the Chancery Division against the trustee: Exp. Pannell, 6 Ch. D. 335; White v. Simmons, 6 Ch. 555; or they may apply to have their securities realized in the Court of Bank- ruptcy, and prove for the difference: see Robson, 298; and they will not be ordered to deliver up to the trustees the deeds forming their security until payment into the Court of Bankruptcy of the amount claimed to be due on the mortgage: Exp. Ditton, 1 Ch. D. 557. In the case of a composition, the Court of Bankruptcy has no jurisdic- tion to direct a sale at the instance of an equitable mortgagee creditor of the debtor: Exp. Manchester, Ifc. Banking Co., 18 Eq. 249. As to the power of sale conferred upon mortgagees (including equitable mortgagees by deed), by 23 & 24 V. c. 145, ss. 11-16, 24, see Fisher on Mortgage, 498 ; Prideaux Conv. vol. i. p. 488. Section X. — Liens in the Nature op an Equitable Mortgage. 1. Lien on Reversion — Conveyance. " Declare that the Pit is entitled to a lien in the nature of an equitable mortgage on the Deft's reversion, or remainder, in fee- simple expectant on the death of W., of &c., of and in the several messuages &c., mentioned in &c., for the sum of £ , and inter- est thereon ; — Usual account with direction for payment and de- livery up of deeds ; " But in default &c., — " Declare that the Pit will be entitled to the said reversion of the said messuages &c., ex- pectant upon the death of the said W., free and clear of and from all right, title, interest, and equity of redemption of, in, and to the same ; and to have a conveyance thereof accordingly ; And in that case. Let the Deft execute to the Pit such conveyance, to be settled &c., if the parties differ." — No costs on either side. — Liberty to apply. — Langdon v. Wilmot, L, C, 28 Feb. 1828. CH. XX. S. X.] LIENS. 667 2. UstabUshing Lien on Reversion — Mortgage or Sale. " Declare that the Pit has a lien upon the reversion of the said freehold and leasehold estates for the money paid by the Pit to A. or his representatives, in discharge of the several bonds entered into by him and B. in the bill named, dated &c., to the said A. ; And decree the same accordingly : " — 1. Account of what is due to the Plt-for principal and interest in respect of the money so paid by the Pit in satisfaction and discharge of the said bonds — And Let the Deft pay to the Pit what shall be certified to be due to him within one (calendar) month after &c., at such &c. ; 2. And in case the Deft shaH^not pay to the Pit what shall be certified to be due to him on the said account within the time so limited for pay- ment thereof, Let the money which shall be so certified to be due to the Pit be raised by mortgage or sale of the said freehold and leasehold estates, with the approbation of the Judge ; And Let the . money to be so raised be paid into Court &c. ; And Let the same be applied in payment of what shall be certified to be due to the Pit as aforesaid ; — No costs on either side to hearing, without preju- dice to Pit having his subsequent costs as a mortgagee. — Liberty to apply. — Mackreth v. Symmons, L. C, 15 Ves. 329, 1 Lead. Cas. Eq. 324. 3. Declaration of lAen for Mx'penditure on Land by third Parties, and of Charge upon such Lien in Favor of Pits, with Rights of Redemption and Foreclosure, as in the Case of a Derivative Mortgage. Declare that 0. and A. in the pleadings named were in the months of entitled to a lien on the piece of land situate &c., and comprised in the agreement dated the 31st Dec. 1853, between the N. Ey. Co. by G. their secretary of the one part, and the Deft K. (^father of O. and A. and equitably entitled to the land under this agreement) of the other part, and the granaries and other buildings erected thereon, for the amount expended by the said O. and A., or either of them, in or about the erection of the granaries and buildings in the pleadings mentioned, or in pay- ment for the same respectively, and also for the sum of £ , the value of the goods supplied by them to the Deft K., in respect of his previous outlay in building the granary first erected on the said piece of land — Declare that the interest of O. and A. in the said piece of land, granaries, and buildings, was, by reason of their deposit of the said agreement with the Pits on the &c., as in the pleadings mentioned, charged with the amount then due, and there- 668 MOBTGAGES. [PAET IV. after to become due to the Pits in yespect of their adyances to O. and A. ; And Let the following &c. : 1. An account of all sums of pioney laid out by O. and A- in and about the erection of the said buildings (including the said £ , the value of the goods so sup- plied to the Deft K., for which they are hereinbefore declared en- titled to a lien on the said premises), with interest on what shall be found due at the rate of £4 per cent per annum from the &c-) wheo 0. and A- were adjudicated bajikrupts ; 2. An account of principal and interest due to Pits in respect of their advances to 0. and A., and for their costs of this suit, to be taxed &c. ; And upon the Deft J5[. paying unto Pits what shall be certified to be due on sudi .secpndr mentioned account not exceeding what shall be due on the first- mentioned account, and unto the Defts B. and C. (the assignees in pankruptcy of 0. and A.) what shall be certified to be the residue, if any, of what shall be due on the first-mentioned account, after de- ducting what shall be due on the second-mentioned account, within six calendar months after the date of such certificate, at such time ^nd place &c. , Let the Pits and the Defts B. and C. deliver upon oath the said agreement and all documents &c. to the Deft K., but in default K. to be foreclosed ; And in case of such foreclosure, direc- tion for B. wd C. to redeem within three months, and in default to be foreclosed and Pits to have the benefit of the said agreement of the 31st Dec. 1853 ; And Let the Defts K., B., and C. concur in any conveyance which Pits may be able to obtain from the N. Ey. Go. of the said land at the Pits' request and at their own expense. — The ITnity Joint Stock Banking Association v. JS^ng, M. R., 25 Beav. 72. 4. lAen on Policies established hy Letter addressed to the Creditor, and hy Mm delivered to the Insurance Office. Deolabe thai; the Deft D., under the drcumstginces in lihe plead- ings mentioned, effectually charged the hereditaments at N. &c., and the policies in the pleadings mentioned, and all the moneys now due and to become due in respect of the said policies, witii the payment of the amount which became owing from the Deft D. to the Banking Co. in respect of -the moneys of the said company, taken by the Deft D., and appropriated to his own use as in &c. stated, and that the dharge of the said company thereon is prior to the interest therein of the Defts or any of them. — Account of what is due to the company from the Deft D. and for the Pits' costs of suit. — Directions for sale of the hereditaments and policies and payment of proceeds into Court. — Adjourn &c. — Liberty to apply. — Chowne v. Maylis, M. E., 31 Beav. 351. CH. XX. S. X.] LIBNS. 569 For decree establishing stockbrokers' lien for the balance due to them on the account of the general dealings between them and bankers, their customers, on specific securities deposited by the bankers with them to •secure a specrfie loan, with accounts: see Jones v. Peppercorne, Johns. 445. NOTES. An equiitable assignment which will operate as a lien upon the debtor's property in the nature of an equitable mortgage may be informally created by writing: Choime v. Baytis, 31 Beav. 351; or verbally: Gkirnell v. Gardner, 12 W. R. 87; and effect will be given to it in equity: S. C. Exp. South, 3 Swa. 392. An equitable assignment of a fund, e. g. dividends to be received in respect of the assignor's proof upon an estate in liquidation as distin- guished from a charge or lien, may be created by written undertaking to pay it over: Exp. Irving, Re Brett, 7 Ch. D. 419; Fisher on Mortgage, 80, 81. Persons assigning property on which they have a charge or incumbrance, upon the faith of an agreement not carried into effect that they shall have a charge on another estate, will be considered as equitable incumbrancers, on the latter: see Banks v. WAittall, 1 D. & S. 536; Beckett v. Cordley, 1 Bro. C. C. 353. And where a husband executed a bond in favor c«f a child reciting that his wife had devised an estate to him on condition of his providing for the child, the bond was held to create a lien upon the devised estate: Ei^. Atkins, 2 Y. 8e C. 536. A Ken on land may be acquired by outlay thereon with the sanction of the owner to the extent of suoh outlay, and the interest acquired by such lien may be validly charged : see Unity Banking Assoc, v. King, 25 Beav. 72, Form 3, sup. p. 567; Daveyy. Ehirrant, 1 D. & J. 535; Williams v. Thomas, 2 Dr. & Sm. 29. A purchaser, when the contract fails through no misconduct or default on his part, has a lien on the estate for his deposit, with interest, which he can enforce against the vendor, and against the vendor's mortgagees subsequent to the contract: Rose v. Watson, 10 H. L. .C. 672; Wythes v. Lee, 3 Drew. 396; Torrance v. Bolton, 14 Eq. 124, 136, 8 Ch. 118. If the vendor be a mortgagee selling under a power of sale, or is entitled to some lesser interest than a fee-simple, the lien will be good to the extent of the vendor's interest only: Wythes v. Lee, 3 Drew. 396, 406. Sub-jmrchaaers are entitled to this lien for •the amount of purqhaae-money paid by them either in the hands of the original vendor, or of the pur- chaser with whom they contracted: Aberaman Ironworks v. Wickens, 4 Ch. 101 (reversing 5 Eq. 485). As to a vendor's lien for unpaid purchase-money, see " Specific Per- PORWANCE," inf.; Fisher on Mortgage, 139; Dart V, & P. 730; Mach-^ reth V. Symmons, 1 Lead. Cas. Eq. 324, 346. An unpaid vendor who has executed a coijveyance and parted with the deeds to enable the purchaser to mortgage the property will lose his lien as aigainst the mortgagee who takes his security without notice of the lien : Rice V. R.,2 Drew. 72; Smith v. Evans, 28 Beav. 59. 670 MORTGAGES. [PART IV. The lien is not discharged by taking a security for the purchase-money, unless it appears that the security was intended in substitution for the purchase-money, and, in fact, constituted the consideration for the convey- ance: see 1 Lead. Caa. Eq. 353; Dixon v. Gayfere, 1 D. & J. 655, 659, 21 Beav. 118; Dart V. & P. 733- In the case of land purchased by a railway company, the unpaid vendor, unless the consideration be a rent-charge : see E. Jersey v. Briton Ferry Co., 7 Eq. 409 ; or the nature of the contract is such as to exclude the lien : see The Brentwood, S^c. Co., 4 Ch. D. 562 ; is entitled to a lien, which extends to the compensation for severance as well as to the unpaid purchase- money, and maybe enforced by sale and by the appointment of a receiver: see Walker Y. Ware, Sfc. By. Co., 1 Eq. 195; A. G. v. Sittinghourne Ry. Co., 1 Eq. 636; but not by an injunction against running trains over the land until a sale. .^s to the lien of trustees for their expenses, see Lewin, 528. The lien of a trustee who has paid ofl an incumbrance will not be ejiforoed by foreclosure or sale, which would put an end to the trusts, but he has been allowed to retain the title-deeds: Darke v. Williamson, 25 Beav. 622. The general lien of bankers or brokers attaches on all securities of the customer deposited with them, unless there be an express, or, under the circumstances, implied contract inconsistent with such general lien: Bran- dao V. Barnelt, 12 CI. & F. 787; and see Leese v. Martin, 17 Eq. 224; The City Bank Case, 3 D. F. & J. 629. Where securities are deposited with brokers to secure a loan, the bro- kers have a power of sale on non-payment upon the next settling-day at the Stock Exchange, in default of any other day being specified ; and the lien extends to their general balance as well as to the sum lent upon the specific security: Jones v. Peppercorne, Johns. 430, 5 Jur. N. S. 141. But where the, depositees have notice that the stock deposited is the property of a third party the lien is limited to the balance due at the time of the advance, and does not extend to future advances : Locke v. Prescott, 32 Beav. 261. The general lien on all property comprised in the security deposited may also be limited by an expression of intention to confine it to a por- tion of the security only: Wylde v. Radford, 12 W. R. 38. Section XI. — Change in the Interest op the Mortgagor OR Mortgagee. 1. Equity of Redemption in Settlement. AccotTNT of what is due to the Pits as executors of W. deceased, for principal and interest on the mortgage &c., and for their costs of suit, to be taxpd ; — " And upon the Deft B. paying to the Pits what shall be certified to be due to them as executors of the said W. deceased, within &c., Let the Pits reconvey the mortgaged CH. XX. S. XI.] CHANGE IN INTEREST. 571 hereditaments free and clear &c., but subject, nevertheless, to the jointure of M., the wife of the Deft B., in the said hereditaments, and to the term of five hundred years created therein for raising por- tions foe the younger children of the marriage of the said Defts B. and M. his wife, and deliver up all deeds &c." — But in default foreclosure. — Mount v. jBowater, M. R., 21 June, 1782. 2. First Mortgagee v. Two Annuitants and Mortgagor's Assign. " Declare that Pit is entitled to stand as the first incumbrancer on the hereditameqfs comprised in his term." — Account of what is due to the Pit for principal and interest on his mortgage, and for his costs of suit, to be taxed ; Defts P. and wife (first annuitants) to pay Pit, or be foreclosed ; And, in that case, carry on accounts ; And Deft W. {second annuitant) to pay Pit, or be foreclosed ; And, in that case, carry on accounts ; And Deft M. (assignee of mortgagor) to paj' Pit, or be foreclosed — " But in case the Defts P. and wife shall redeem the Pit, Let an account be taken of what is due to the Deft G. P. for the arrears of his annuity, and Let in- terest be computed on what he shall have so paid to the Pit ; and Let his costs of this suit be taxed &c. ; And Let, upon the Deft W. paying to the Deft G. P. what shall be certified to be due to him for arrears of his annuity, together with what he shall have so paid to the Pit, with interest thereon as aforesaid, apd for his costs of this suit (cause), within &c., at such &c., the Deft G. P. convey free and clear &c., but subject to his annuity; and deliver up all deeds &c., except such as relate to his annuity." — But in default &c.. Deft W. to be foreclosed; And, in that case, accounts to be carried on, and M. to redeem P., or be foreclosed ; And if W. re- deem P., similar accounts of amount due to him for arrears of his annuity &c., and M. to redeem him; and, in that case, W. to con- vey, subject to his annuity, and deliver deeds, except such as relate to his annuity ; But in default M. to be foreclosed. — Liberty to apply. — I'arry v. JParry, V.-C, 5 May, 1823. 3. Redemption ly Tenant for Life of. Property subject to Charges, and held by Mortgagee in Possession — Pit enti- tled to a Charge on Property for the Excess of Rents re- ceived hy Mortgagee beyond his Interest, and for the Amount paid for Redemption and Costs of Suit. " And in case the Pit shall redeem the mortgaged hereditaments under any of the directions hereinbefore or hereinafter contained, S?2 MORTGAGfES. [PAET IV. Let an inquiry be made whether any and what arrear of interest was due on any and which of the incumbrances aforesaid, when the Deft J. C. entered into possession of the said mortgaged heredita- ments ; And if it shall appear in the result of the accounts herein- before directed, or any or either of them, that the amount of rents and profits received by him, less the amount which shall be certified to have been properly expended by him in repairs, and the sums paid by him to the PJt,as such tenant for life as aforesaid, is greater than the amount of interest which has become due on the said mortgage securities of &c. , and on the said legacy of £ since "he entered into possession of the said mortgaged hereditaments, Let the amount of such interest, together with the arrears of inter- est, if any, due on the said incumbrances, or any ^f them, when the Deft J. C. so entered into possession, be deducted from the amount of rents and profits certified to have "been received by him as afore- said ; And Declare that the Pit is entitled to a charge upon the said hereditaments for the excess, if any, of such rents and profits, over the amount so deducted therefrom, and that her executors, adminis- trators, or assigns wiU, in the event of her decease, be entitled to interest thereon at the rate of £4 per cent per annum from the date of Tier decease, and decree the same accordingly. — In case DeftCt.. •(the legatee of £ duirged by Pit's testator upon the mortgaged pr^p&rVy) should redeem, direction to compute subsequent interest on what G. should have paid in redemption &c., .and to take an account of what was due for principal and interest in respect of her legacy so charged &e. .; Gr. to be redeemed by Pit or the other Defts, and in default Pit's bill to he dismissed and the other Defts to be foreclosed ; But in case the Pit and the Defts (the persons claiming in rem^aAnd&r) , or any of them, shall redeem as afore- said, Declare that the Pit or such of the Defts as shall so redeem will be entitled to a charge upon the saiid mortgaged hereditaments for the amount of prindpal, interest, and costs, and costs, charges, and expenses, which they shall so pay in redemption of the said hereditaments, and also for their oosts of tills cause, such costs to be taxed &c. ; and in case the Pit shall redeem, for what she shall pay to the Defts C. and D. (trustees and executors of her testator's will) for their costs as before directed ; And Declare that in the event of the hereditaments being so redeemed by the Pit or by the said last-named Defts, or any of them, the equity of redemption of the said mortgaged hereditaments is in the hands of the Pit or such of the Defts so redeeming as aforesaid, to be subject and liable to such trusts and limitations as are declared and limited by the will of J. P. in the pleadings mentioned concerning the same. — Liberty to applj. — Pawky v. Colyer, L. JJ., i Aug. 1863. CH. XX. S. XI.] CHANGE IN INTEREST. 673 The decree in this case, which was one of great complication from the settlement of the original mortgage debt and sub-mortgage to one of the trustees of the settlement, was made in a redemption suit by the tenant for life under the mortgagor's wUl, against the mortgagee in possession, and his equitable derivative mortgagee (also the trustee of the mortgage debt) and persons entitled in remainder under the mortgagor's will, in- cluding the legatee of a sum thereby charged on the mortgaged property, and directed successive foreclosures and redemptions according to the priorities of the incumbrances and the rights of the parties taking under the mortgagor's will,, with special directions for working out the equities between the several parties. As ultimately settled by Lord Justice Turner, the decree is set out in extenso in 3 D. J. & S. pp. 695-712. Before exercising her right of redemption the Pit died, and a sum of £ having been fcund due to her on account of her life estate in the mortgaged property, it was subsequently held that, as against the Defts interested in remainder, the Pit's personal representatives were entitled to the costs of the suit, see Pawley v. Colyer, 16 W. R. 114, L. J. E., 22 Nov. 1867. For the like declaration that in case Pit {tenant for life) should redeem, the equity of redemption in his hands should be subject and liable to such trusts and limitations as were declared and limited by the settlement under which he claimed concerning the same, and in such case that he was entitled to add his own costs of suit subsequent to the hearing, and the costs which he should have paid to the mortgagees to the principal and interest of his debt as against the estate, see Wicks v. Scirvens, V.-C. W., 24 July, 1860, IJ. & H. 215; and see Aynsley v. Reed, 1 Dick. 249. 4. Remainderman v. Mortgagee and Tenant hy Curtesy,, he being charged with Interest. Account of what is due to the Deft E. for principal and interest on her mortgage, and for her costs of suit, tp be taxed — "And Let, upon the Pit pajdng to the said Deft what shall be certified to be due to her for principal, interest, and costs, within &c., at such &c., the said Deft convey the mortgaged hereditaments, free &c., to the Deft T. as tenant for life by the curtesy, subject to the pay- ment of interest in respect of what shall be paid by the Pit to the Deft E. in redemption of the said mortgage, with remainder to the Pit and his heirs, or as he shall direct ; And Let thereupon the Deft E. leave with the Clerk of Kecords and Writs, upon oath, all deeds, and writings in her custody or power relating to the mortgaged hereditaments, for the benefit of all parties interested therein, sub- ject to further order, — Liberty to apply as to the deeds. Declare, that the Deft T., as such tenant for life as aforesaid, ought to be charged with and pay to the Pit out of the rents and profits of the premises so much of the interest as, on taking the said account. 574 MORTGAGES. [PART IV. shall be certified to be due and in arrear on the said mortgage, sub- sequent to the death of his late wife ; And Let the Deft T. paj' the same to the Pit accordingly ; And Declare, that the said Deft T. ought, during his life, to pay to the Pit the growing interest in respect of the residue of what he shall so pay to the Deft E., after deducting thereout the interest hereinbefore directed to be paid by the Deft T. to the Pit ; and Let the said Deft pay the same to the Pit accordingly, as the same shall from time to time become' due, by half-yearly payments ; and in default of the said Deft paying such interest " — Liberty to Pit to apply. — ' ' But in default of the Pit paying to the Deft E. such principal, interest, and costs as aforesaid, within the time aforesaid ; Let (the Pit's bill) from thenceforth stand dismissed &c." — Liberty to apply. — I)aie v. Taylor, 17 Feb. 1773, 26 March, 1774. 6. Mortgage devised in Trust — One Deft dowalle — Appor- tionment of Mortgage Money — Trustee and Cestuis que Trust, Co-Fits. 1. Account of what is due on the mortgage security &c. to A. (the Pit B.'s testator), and devised by the said A. in trust for the other Pits, and for their costs of suit, to be taxed — " And upon the Defts C. and D., or either of them, paying to the Pit B. what shall be certified to be due to him for such principal and interest, subject to the directions hereinafter given, and also what shall be taxed for the Pit's costs, within &c., at such &c.. Let the Pit B. reconvey &c. , free &c. ; And deliver all deeds &c. to the said Defts, or as they shall appoint ; And all parties are to join in such reconveyance &c." — But in default the Defts C. and D. to be fore- closed — "But such foreclosure is to be without prejudice to the Deft E.'s dower, and subject to the declaration and further direc- tions hereinafter mentioned ; 2. And in case the Defts C. and D., or either of them, shall redeem as aforesaid, Let an account be taken of what is due to the several Pits, other than the Pit B., for their respective proportions of the principal money and interest due on the said mortgage ; And Let the proportion thereof which shall be certified to be due to the said Pits respectively be paid to them accordingly; But in case the said Defts shall st^d foreclosed, Declare that the Pit B. is to be considered as a trustee of the said mortgaged hereditaments for the benefit of the said other Pits, ac- cording to their respective proportions of the mortgage money." — Liberty to apply. — Westmore v. Mnberley, M. R., 23 July, 1772. And see Jones v. Griffith, 2 Col. 208. For decree for foreclosure of one fourth of an estate mortgaged for a term, which had descended upon the four daughters of the mortgagor as CH. XX. S. XI.] CHANGE IN INTEREST. 575 his heiresses-at-law and as coparceners, the mortgagee having purchased the equity of redemption and reversion in fee of the other three fourths, see Newcombe v. Downe, M. R., 15 Feb. 1777. Pit was first mortgagee and entitled to the equity of redemption as to one fourth ; HoUingworth second mortgagee ; Hanbury entitled to the equity of redemption as to three fourths. The decree was for HoUing- worth to redeem Pit — in default Hanbury to redeem Pit as to three fourths. If HoUingworth redeemed Pit, « Upon Hanbury paying to HoUingworth three fourths of what shaU be certified to be due for princi- pal, interest, and costs, Let HoUingworth reconvey three fourths of the mortgaged property to Hanbury and the remaining one fourth to the Pit, &c." — In default of Hanbury paying to HoUingworth such three fourths, Hanbury to be foreclosed. — In default of Pit paying to HoUingworth such remaining fourth, the bill in respect of the remaining fourth to be dismissed: see SamJbroke v. Hanbury, M. R., 30 Nov. 1751, Seton, 3d ed. 426. 6. Carrying out Equities between Parties entitled to redeem. Plaintiff declared entitled to redeem the mortgage ; Accounts of what is due to J. on his mortgage ; rents, repairs, &c. ; Pit to pay what is due on the balance ; in default (bill) to be dismissed ; But in case the Pit shall redeem, Direction to ascertain and certify what proportion of the amount which shall be so paid by the Pit, and of the Pit's costs of suit, to be taxed as between solicitor and client, ought to be borne and paid by the Deft W. in respect of that part of the premises claimed by him ; — " And upon the Deft W. paying to the Pit what shall be certified to be such proportion of what shall be so paid by the Pit, and of Pit's costs as ought to be borne and paid by the said Deft, within &c., at such, &c., the Pit is to Convey to the said Deft that part of the premises claimed by him, and deliver up the possession thereof, and all deeds and writings &c. relating solely thereto to the said Deft W." — But in default the Deft W. to be foreclosed. — ^KsAa v. M, M. R., 14 Feb. 1812. 7. Redemption by Person interested in Part only. Tax Deft's costs of this suit ; And upon payment of such costs by the Pit to the Deft, together with the sum of £ , admitted to be the sum paid by the Deft to the Pit in respect of his costs of this suit pursuant to the decree, dated, &c., Let the Deft convey to the Pit the legal estate in the mortgaged premises in the pleadings mentioned, but subject as to that portion of the said mortgaged premises to which the equity of redemption is vested in any person or persons other than the Pit to such equity of redemption, the 676 MOET&AGES. [past IV. deed of conveyance to be settled by the Judge in case the patties differ ; And thereupon also Let the Deft deliver over on oath &c. — Liberty to apply. — Pearce v. Morris, L. C, 16 Dec^ 1869, 5 Ch. 227. 8. Pit first Mortgagee of the Entirety and second of a Moiety. Pit was entitled to a mortgage on the whole estate, and, as transferee, to a subsequent mortgage made by S., one of two co-heirs of the mort- gagor represented by the Dief t L. , the other co-heir being represented by the Deft P. Account of what is due to Pit fbr principal and interest on the mortgage dated &c. {first mortgage) , and tax his costs as to that mortgage ; Upon payment by the Defts, or either of them, of what is certified to be due to Pit on that mortgage, within, &c., at such &c.. Pit to reconvey to Deft P., at the Deft's expense, one un- divided moiety of the mortgaged hereditaments ; but in default, Defts to stand foreclosed — "And declare that in case of such redemption the other moiety of the mortgaged hereditaments will remain in the hands of the Pit, subject to redemption by the Deft L., on payment of what shall appear due from him for principal and interest, and costs on the mortgage made by S., as in &c. mentioned ; " And in that case — Account of what is due to the Pit for principal and interest on the last-mentioned mortgage ; And on payment by the Deft L. of what shall be certified to be due to the Pit for principal, interest, and costs on such mortgage, within &c. at such &c.. Pit to convey that moiety to the Deft L. at his ex- pense ; But in default the Deft L. to stand foreclosed — " But in case the Deft P. shall pay off the whole of what shall appear due to the Pit for principal, interest, and costs on the said first mort- gage, Let the Pit reconvey the whole of the mortgaged heredita- ments to the Deft P. , subject as to one moiety to the directions hereinafter contained ; And Declare, that in that case the Pit, as standing in the place of S., shall be entitled to redeem the Deft P. as to one moiety of the said hereditaments, on paj-ment of a moiety of what shall be certified to be due on the said first mortgage, with subsequent interest and. costs ; And in that case compute subsequent interest on a moiety of the money that shall have been so paid by the Deft P., and tax his, subsequent costs ; And on Pit pa3'ing to the Deft P. what shall be certified to be due for such moiety, with subsequent. interest and costs within &c., at such &c., the Deft P. to convey one undivided moiety of the said hereditaments to the Pit at his expense ; But in default (the Pit's bill) , as against the Deft P., to stand dismissed with costs; But in case the Pit shall CH. XX. S. XI.] CHANGE IN INTEBBST. 577 redeem the Deft P. as to the last-mentioned moiety, compute sub- sequent interest on what the Pit shall pay to the Deft P., and also on what shall be certified to be due from the Deft L. on the said mortgage made by the said S., and tax the Pit's subsequent costs ; And upon the Deft L. paying to the Pit what he shall have so paid to the Deft P., with subsequent interest and costs, and also what shall be certified to be due for principal, interest, and costs on the mortgage made by the said S., within &c., at such &c., the Pit to recouTey the last-mentioned moiety of the said mortgaged heredita- ments to the Deft L., at the expense of the said Deft" — But in default, the Deft L. to be foreclosed. — Liberty to apply. — Meynold V. Lowe, L. C. 14 May, 1748. 9. Change of Interest pending Suit and after Decree — Carry- ing on Proceedings under Former Decree between the New Parties. Let the former decree made in the cause v. , dated &c., so far as the same directs an account to be taken of what is due to the Pit for interest, in respect of the £ Cons. £3 per cent Anns in the pleadings mentioned, and an account of the rents and profits of the mortgaged hereditaments in question received by the Pits or either of them, or by any other person &c., or which without the wilful default &c., and a taxation of the costs of the said suit (cause) , be carried on and prosecuted, bj' and between the parties to this suit (cause), in like manner as thereby directed as to the then parties ; Tax the Pits their costs of suit, amount due on account of rents and profits to be deducted from amount due to Pits for interest, and costs of this and the former suit (cause) ; And Let, upon the Defts &c., transferring the said £ Cons. £3 per cent Anns to the Pits, and paying what shall be certified to remain due to them for interest and costs, after such deduction as aforesaid, within six months after &c., at such &c., the Pits recon- vey &c. ; and deliver all deeds &c. ; But in default &c. — Curtis V. Mage, L. C, 29 Jan. 1825 ; and see Buchanan v. Greenway, M. R., 21 March, 1848. For an order under 15 & 16 V. c. 86, s. 52, after the usual foreclosure decree and before certificate, on a transfer by four mortgagees Pits to three of themselves and a new mortgagee, to carry on the decree, as a decree for an account of what was due to the continuing mortgagees, and the new mortgagee, and for payment or foreclosure thereon, see Ingham Y.Waskett, M. R., 11 Eq. 283; and for the like] order after decree and after certificate, upon the application of the new mortgagee with the consent of the original mortgagee: see Bibby v. Naylor, M. R., 17 Eq. 14; 37 678 MOETGAGES. [PAKT IT. and see Freeman v. Pennington, 3 D. F. & J. 295; Malhck v. Still, 15 W. R. 293; North British, Ire. Co. v. Burke, 17 W. K. 22; WUUamson v. Jefferys, 12 W. R. 403; where upon a transfer of interest after decree orders were made to revive and to carry on and prosecute the accounts and inquiries and the proceedings thereunder as in the original suit; see also Morg. 189, 190. Section XII. — Deeivatitb Mortgages. 1. Derivative Mortgagee v. Mortgagee and Mortgagor, 1. Account of what is due to the Deft H. for principal and in- terest 'on his mortgage, and for his costs of suit, to be taxed ; 2. Account of rents and profits received by the said Deft ; amount to be deducted ; 3. Account of what is due to Pit for principal and interest on his derivative hiortgage, and for his costs, at law and in this Court, such costs to be taxed; 4. Account of rents and profits received by Pit ; Amount to be deducted from his prin- cipal, interest, and costs. — " And Let, upon the Deft W. (mort- gagor) paj'ing to the Pit what shall be certified to remain due to him for such principal, interest, and costs, as aforesaid, not exceed- ing what shall be certified to be due to the Deft H. for principal, interest, and costs on his mortgage, and the residue, if any, of what shall be certified to remain due on the Deft H.'s mortgage, to the Deft H., within six (calendar) months after &c., at such time &c. , Let the Pit and the Deft H. reconvey the mortgaged heredita- ments, free &c., and deliver up all deeds &c. to the DeftW., or as he shall direct (appoint) ; But in default of the Deft W. paj-ing to the Pit and the Deft H. such principal, interest, and costs as aforesaid, by the time aforesaid, the Deft W. is from thenceforth to stand absolutely debarred and foreclosed &c. ; 5. And in case of such foreclosure. Let subsequent interest be computed on the Pit's derivative mortgage ; And Let his subsequent costs be taxed &c. ; " 6. Subsequent account of rents and profits ; Amount to be deducted — "And Let, upon the Deft H. paying to the Pit what shall be certified to remain due to him for his principal, inter- est, and costs, as aforesaid, within three calendar months after &c., at such &c., the Pit reconvey the said mortgaged hereditaments, free &c., and deliver all deeds &c. to the Deft H., or to whom he shall appoint ; But in default of the said Deft H. paying to the Pit &c., the Deft is from thenceforth to stand absolutely debarred and foreclosed &e." — Liberty to apply. — Bolton v. Wilson, M. R., 30 May, 1750 ; and see Bynde v. Taylor, L. C, 30 June, 1784. CH. XX. 6. XII.] DERIVATIVE MORTGAGES. 67^ For the like decree where both the original and the derivative mortga- gee were Pits, see Loat v. Thorpe, M. R., 12 Jan. 1876. For direction, in case original mortgagee should be found to have been overpaid by rents, for reconveyance, Manning v. Markham, M. R., 25 Feb. 1767. 2. First Mortgagee v. Second, and Second's Derivative, and Mortgagor and Subsequent Incumbrancers. Account of Ht's principal, and interest, and costs ; Account of rents &c., amount to be deducted ; Defts M. {second mortgagee) and A. (derivative mortgagee) , or either of them, to redeem or be foreclosed ; In case of foreclosure, subsequent accounts of interest, costs, and rents ; and Defts P., H., and W. successively to redeem or be foreclosed ; But if M. or A. redeem, account of subsequent interest on what they pay, and account of principal and interest due to M. on his original mortgage and for his costs ; And account of principal and interest due to A. on his derivative mortgage, and of his costs ; Account of rents, and amount to be deducted — " And Let, upon the Deft P. paying to the Deft A. what shall be certified to remain due to him for principal, interest, and costs on his derivative mortgage after such deduction as aforesaid, not ex- ceeding what shall be certified to be due to the Deft M., and also paying to the Deft M. what shall remain due to him for principal and interest on his said mortgage, after deducting what shall be so paid to the Deft A. on his derivative mortgage, and also paying to the Defts M. and A., or either of them who shall have paid the same, what shall be certified to be due in respect of what the}' or either of them shall have paid to the Pits as aforesaid with interest &c., within three (calendar) months after &c., at such &c., the said Defts M. and A. convey and assign the mortgaged heredita- ments, free and clear of (and from) all incumbrances done by them, or either of them, or any person claiming by, from, or under them, or either of them, and deliver up all deeds &c." — But in default Deft P. to be foreclosed ; And in case of such foreclosure, directions to take the subsequent accounts ; And Defts H. and W. succes- sively to redeem in like manner, or be foreclosed ; If P. redeem, subsequent accounts, and H. and W. successively to redeem him or be foreclosed ; If H. redeem, subsequent accounts, and W. to re- deem him, or be foreclosed. — Liberty to apply. — X. Grimston V. Weobly, Lords Commrs., 25 Nov. 1783 ; Morrisy. Frime, M. R., 3 Aug, 1775. 580 MORTGAGES. [PABT IV. 3. Mortgagor v. Transferee and Ma Derivative — CoatB of getting Possession. : " Let the following &c. : 1. Account of what is due to the Deft G. {transferee of mortgage) for pi-incipal and interest on the mort- gage in the pleadings mentioned (originally made to R. B., by indentures dated &c., and afterwards, by indentures dated &c., assigned to the Deft G.), and for the costs of recovering posses- sion of the mortgaged hereditaments incurred by T. B. {executrix), and paid by the Deft G., and for his costs of this suit, to be taxed &c. ; 2. Account of repairs and lasting improvements, and inter- est on such improvements after the rate the mortgage carries, — amount to be added to the mortgage debt ; 3. Account of rents and profits received by parties under whom Deft G. claimed ; 4. Account of rents and profits received by Deft G. , with wilful default ; Direc- tion for taxation of costs and payment by Pit ; 5. Occupation rent [Form 8, p. 490] — " And Let what shall appear to be due on the said several accounts of rents and profits, and occupation rent, be deducted from what shall appear to be due to the Deft G. on the first and second accounts hereinbefore directed ; 6. Let an account be taken of what is due to the Deft H. {derivative, mortgagee) for principal and interest in respect of the derivative mortgage from the Deft G., and for his costs of this suit to be taxed &c. ; And Let what shall appear to be due for such principal, interest, and costs be deducted from what shall appear to be due to the Deft G., on the several (other) accounts hereinbefore directed " — What shall be certified to be due to the Deft H. to be paid to him, and what shall be certified to remain due to the Deft G. to be paid to him — "And Let, upon the Pit paying to the Defts G. and H. respectively what shall be so certified to be due to them on the several accounts hereinbefore directed, after such deductions as aforesaid, within six (calendar) months after &c., at such &c., the Defts G. and H. convey and assign the said mortgaged heredita- ments, free &c. ; and deliver all deeds &c. to the Pit, or as he shall direct; But in default &c.. Let (the Pit's bill) from thenceforth stand dismissed &c." — Liberty to apply. — Stephenson v. Green, M. R., 14 Feb. 1801. In the above decree it is assumed that the amount due on the deriva- tive mortgage will not exceed that due on the original; and see remarks on this decree in Fisher on Mortgage, p. 1044; but the decree seems cor- rect in a redemption suit, as in case the bill were dismissed, the decree could not proceed to work out the Defts' equities. CH. XX. S. ZII.J DERIVATIVE MORTGAGES. 581 4. Mortgagor v. Mortgagee and his Trustee in, Liquidation, and Derivative Mortgagees. Dismiss the suit with costs except so far as it seeks redemption on payment of what shall be due on taking the accounts hereinafter directed ; Tax the Defts their costs of this suit ; And Let the Pit pay to the Deft R., the trustee in liquidation of the late Deft G., his own costs and also the costs of the said late Deft, when taxed ; And Let the following &c. : 1. An account of what is due to the Deft S. for principal and interest on the mortgage dated &c. in the (bill) mentioned, originally made to the late Deft G., and by the indenture dated &c.*, assigned to the Deft S., and for his costs of this suit, to be taxed ; 2. An account of what is due to the Defts K. and D. for principal and interest in respect of the derivative mortgages, dated &c., from the Deft S. to the said Defts, and in the answer of the said Defts mentioned ; And Let what shall appear to be due to the Defts K. and D. for principal and interest be de- ducted from what shall appear to be due to the Deft S. on the first account hereinbefore directed, and the balance certified ; And Let, upon the Pit paying to the Defts K. and D. what shall be so certi- fied to be due to them, together with their costs of this suit when 80 taxed, and also paying to the Deft S. the balance which shall be certified to be due to him after such deduction as aforesaid, within six calendar months after the date of the Chief Clerk's certificate, at such time and place as shall be thereby appointed, the Defts S., K., and D., convey and assign the said mortgaged iereditaments free and clear &c. ; And deliver up all deeds and writings &c. ; But in default of the Pit paying to the Defts K. and D. what shall be certified to be due to them for such principal and interest and costs, and to the Deft S. the balance which shall be certified to be due to him as aforesaid by the time aforesaid ; Let (the Pit's bill) &om thenceforth stand dismissed out of this Court, with costs to be paid by the Pit to the Defts S., K., and D. — Liberty to apply. — Juddv. Green, V.-C. B., 20 Jan. 1876, S. C. 45 L. J. Ch. 108, 33 L. T. N. S. 597. This decree assumes, as in Stephenson v. Green, Form 3, sup. p. 580, that the amount due on the derivative will not exceed the amount due upon the original mortgage. NOTES. To a suit by a derivative mortgagee to foreclose the mortgagor, the original mortgagee or, in case of his death, his representative must be a party, being interested in taking the account: Hobarty. Abbot, 2 P. Wms. 582 MORTGAGES. [PART IT. 643. But the original mortgagee may redeem the derivative mortgagee, and the latter may foreclose the original mortgagee without makipg the original mortgagor a party. In a redemption suit by the mortgagor he is entitled, upon paying into Court what was due from him to the original mortgagee, to a reconvey- ance by all the Defts, without waiting until the accounts have been taken and the equities settled as between the original and derivative mortgagees: Lysaglit v. Westmacott, 33 Beav. 417. In Gurney v. Seppings, 2 Ph. 40, where the Deft, a mortgagee, had sab- mortgaged to the Pits, and also mortgaged an estate of his own to them as further security for a loan, the Pits were not entitled to restrain the Deft from suing the original mortgagor on his covenant, except on restor* ing the Deft his own estate and releasing him from all personal liability to them; but the Deft was required to give an undertaking to pay to the Pits any money recovered in the action. Section XIII. — Marshalling Securitie9. 1. Marshalling Securities in Favor of Second Mortgagee as against a Surety who, on Payment of First Mortgagee's I>eht, has had transferred to him a Security not included in that of Second Mortgagee. 14 January, 1851. Mortgage to M. of chattels, and also of two policies on the life of A., the mortgagor, whose mother, now represented by Deft B., joined in the mortgage as a surety. 25 March, 1852. Second mortgage to C. (Pit) of the chattels. 1853. Sale of the chattels by M. and action against B., as surety, for balance of the debt. — Action defended and large costs incurred. 1856. Transfer by M. of the two policies to B. in consideration of his payment of the balance of M.'s debt. 1859. Death of A. and receipt of policy moneys by B. Upon bill by C. to marshal the securities as against B., whose security was exhausted in part payment of M.'s debt, the following decree was made : — Declare that the Pit C. is entitled to the extent of the value of the property comprised in the indenture dated the 25th March, 1862, being the Plt'e security in the pleadings mentioned, received by M. (first mortgagee), in the pleadings named, to have the bal- ance of the moneys received by Deft (the surety) in respect of the property comprised in the indenture dated the 14th January, 1851, in the pleadings mentioned, after satisfying what was due under the last-mentioned indenture for principal, interest, and costs, and the costs of M. (the Pit in the action at law in. the pleadings mentioned) CH. XX. S. Xm.] MARSHALLING SECUEITIBS. 683 applied in or towards satisfaction of the monej's due upon the Pit's said security, and that the Deft is a trustee of such balance for the Pit ; And Let the following &c. : 1. An account of what is due to the Pit under and by virtue of his said security ; 2. An account of the value of the property comprised in the Pits' said security which has been received by M. or by any person by or for him or his order or use ; 3. An account of all moneys received by the Deft or by any other person or persons by or for his order or use in respect of the property comprised in the said indenture dated the 14th January, 1851, and of the balance of such last-mentioned receipts remaining in the Deft's hands, or for which he is accountable, after satisfying what was due upon the said security dated the 14th January, 1851, and the costs of M. in the said action at law, and in taking the said account the Deft is to be allowed all moneys paid for the purchase of stock, with such balance or any part thereof, and is to be charged with interest at the rate of £4 per cent per annum on the uninvested balances from time to time in his hands, and is to be allowed all sums of money paid by him for or on account of the premiums on the policies of assurance assigned to him as in the pleadings men- tioned, together with interest on the same sums at the rate of £4 per cent per annum from the dates of payment of the same respec- tively, and also all proper costs and expenses incurred by him in relation to the assignment to him of the said policies ; Let the Deft B. within thirty-one days after the date of the Chief Clerk's cer- tificate, transfer to the Pit so much of the balance which shall be certified to be due on taking the said accounts as shall consist of stock purchased as aforesaid, and pay to the Pit so much of the said balance as shall consist of cash, together with interest on such cash balance at the rate of £4 per cent per annum from the date of the said certificate until payment ; Let the Deft B. pay to the Pit his costs of this suit up to and inclusive of the hearing of this cause, such costs to be taxed &c. — Liberty to apply. — South v. Bloxaan, 7.-C. W., 2 H. & M. 457. 2. Policy Moneys marshalled in Favor of a Surety from whom the Debt secured by one of the Policies has been recovered. Tax costs of Pit (the surety) and of Defts, the S. Life Assurance Co. (mortgagees), including in the costs of the Pit his costs in- curred in the action at Law in the pleadings mentioned ; And Let Defts, the S. &c. Co., retain their said costs out of the £ due from them for interest on the £ in their answer mentioned ; And Let the £ Cons, three per cent Anns remaining on the credit &c. be sold. And out of the money to arise by the said sale, 584 MORTGAGES. [PART IV. and any interest to accrue on the said Anns, Let the residue of the costs, if any, of the S. &c. Co. be paid to C, their solicitor, and the costs of the Pit to F., his solicitor. — And in the next place, out of the money to arise by the said sale, and any interest to accrue on the said Anns, Let £1,047 12s. 6d., being the total amount of the three several sums of £500 and £500 and £47 12«. 6t?., paid by the Pit as in the (bill) mentioned, and also £207 7s., being interest thereon respectively from the respective days on which the said sums were respectively paid, to the date of this order, together with further interest on the said sum of £1,047 12s. 6d., from the date of this order to the date of payment, at the rate of four per cent, the total amount to be verified by aflSdavit, be paid to the Pit. — And if the said money and interest, after payment of the said costs, shall be insufficient to raise and pay the said sums of £500 and £500 and £47 12s. 6d., and interest thereon as afore- said, Let the whole of the said moneys and interest and cash be paid to the Pit on account of the said sums and interest ; And Let the residue (if any) of the said money be paid to the Deft D. as the assignee of the estate and effects of T. deceased (mortgagor), the bankrupt in the pleadings mentioned. — Seyman v. Dubois, V.-C. B., 13 Eq. 158. 3. Securities marshalled in Favor of Persons claiming under a Voluntary Settlement prior to the Mortgage. Declare that as between the persons entitled to the estates com- prised in the (voluntary) settlement dated &c. (28th Nov. 1829), and the mortgages dated &c. (1845 and 1853), and the persons entitled to the unsettled estate comprised in the said mortgage, the persons entitled to the said settled estates were at the time of the sale of the said settled and unsettled estates entitled to have the said settled estates exonerated out of the said unsettled estates so far as the same would extend, from and in respect of such mort- gage ; And it being admitted that the sum of £8,000 by the Chief Clerk's certificate appearing to have been produced by the sale of the settled estates correctly represents the value thereof, and that the sum of £3,000 by the said certificate appearing to have been produced by the sale of the unsettled estates correctl}' represents the value, and that the amount paid in respect of the said mortgage was the sum of £6,000 ; Declare that the £4,000 cash appearing by the said certificate to be the balance of the purchase-money of the whole of the estates, as well settled as unsettled, after satisfaction of the said mortgage, is to be taken as representing pro tanto the said settled estates, and as belonging to the persons who at the CH. XX. S. XIII.] MABSHALLING SECURITIES. 585 time of the sale thereof were entitled to those estates, and that so much of the f New £3 per cent Anns in Court &e. as represents income arising from the investment of the said £4,000 is to be taken as representing pro tanto the rents of the said settled estates and as belonging to the persons who at the time of such sale were entitled to the said rents. — Tax and pay costs and divide fund accordingly. — Declare that the persons who were entitled to the said settled estates at the time of the sale thereof are under the covenants in the said settlement contained entitled to have satisfaction out of the testator's estate after payment of the testator's debts &c. in priority of all legatees and devisees, for the difference between their shares in the said £4,000 and their shares in the said £8,000, and for all other damages, if any, occasioned to them respectively by the said mortgage. — Directions to get in testator's estate and to pay his debts. — Declare that the residue of the testator's estate is liable to satisfy the claims of the persons entitled to the said settled estates in respect of the said covenants in the said settlement con- tained. — Directions for division of the residue accordinglj'. — Adjourn &c. — Liberty to apply. — Be HaMs's Estate, Hales v. Cox, M. R., 32 Beav. 118. NOTES. If a person having two estates or funds mortgages both to A., and afterwards one of them only to B., A., who has a right to resort to both properties, shall take his satisfaction first out of that upon which B. has no claim to resort, see Dolphin v. Aylward, L. R. 4 H. L. 486, 505; Lanoy V. D. Athol, 2 Atk. 444; Aldrich v. Cooper, 2 Lead. Cas. Eq. 80; A. O. v. Tyndall, 2 Amb. 614. And a person having a portion charged on one of two mortgaged estates may compel the mortgagee to resort to the other: L. Rancllffe v. Parkins, 6 Dow, 216; Hales v. Cox, 32 Beav. 118, sup. Form 3; and see Tidd v. lAster, 10 Hare, 157, 3 D. M. & G. 872. The right to marshal securities is applicable as against the surety to whom, on payment of the balance, they have been assigned: South v. Bloxam, 2 H. & M. 457; Heyman y. Dubois, 13 Eq. 158, sup. Forms 1, 2. The Court will not marshal securities between two persons to the preju- dice of other parties interested in either estate: thus, in Barnes v. Rooster, 1 Y. & C. C. 401, where estate X. was mortgaged to A. — then to B. — then estates X. and Y. to A., then both to C, all having notice; the Court refused to throw A.'s mortgages upon estate Y. only, in order to leave X. clear for B. , but decreed A's mortgages to be borne ratably by the two estates according to their value: see also Bugden v. Bignold, 2 Y. & C. C 377; Wellesley v. L. Mornington, 17 W. R. 355; Trumper v. T., 14 Eq. 295. But when a third mortgage is merely an assignment of the surplus of properties A. and B., after payment of the debts thereby secured, B., though not included in the second mortgagee's security, must be applied 686 MOBTGAGBS. [PAJBT 17. in satisfaction of his debt in fuU in priority to the third mortgagee, A, having been already exhausted in payment of the first mortgagee's debt: Mowerh Trust, 8 Eq. 110. Where a judgment debtor settled for value part of his estates, and then contracted other judgment debts, the judgment creditors subsequent to the settlement were not allowed to throw the prior creditors on the settled estates, so as to leave the unsettled estates clear, to the injury of claimants Under the settlement; but the latter, having a covenant from the settlor against incumbrances, succeeded in thi-owing the prior creditors upon the unsettled estates, to the exoneration of the settled: Averall v. Wade, LI. & G. Temp. Sugd. 252. The effect of this decision is stated in Sugd.V. & P. 746, to be, that whether there is upon the first sale a mere conceal- ment of the judgment, or, a fortiori, if there is a declaration or covenant that the estate is free from incumbrances, the first purchaser is entitled to be relieved against the vendor and later judgment creditors claiming under him; and this principle applies in favor of volunteers as against subsequent judgment creditors of the voluntary settlor: see Dolphin v. Aylward, L. R. 4 H. L. 486. If a man mortgage two estates to A., then one to B., and the other to C, B. cannot throw all A.'s debt on C.'s estate, but only a ratable proportion: Oibson v. Seayrim, 20 Beav. 614. It has been held that a case for marshalling need not be made by the pleadings, but that the direction wiU be given if in the course of the suit it should appear necessary: Qibbs v. Ongier, 12 Ves. 416. The doctrine of marshalling has been held to apply to a case where mer- chants sent goods to a broker for sale, who consigned them as his own ■with others of his own to factors, so as to throw the factors' charges and acceptances upon the goods belonging to the broker, in discharge of those consigned to him: Broadbent v. Barlow, 2 D. F. & J. 570; see also Exp. Alston, 4 Ch. 168; Exp, Stephenson, De G. 586. The equitable rule of marshalling securities has been adopted in the Admiralty Court so far as can be done consistently with the rules of maritime priority: The Priscilla, 1 Lush. 1; The Mary Ann, 9 Jur. 95; and see The Edward Oliver, L. B. 1 A. & E. 379; Fisher on Mortgage, 703-712. Section XIY. — Peioeitt — Notice. 1. Declaration of Prionty according to Date. Declaeb, that the several incumbrances created by the Defts S. and H., or either of them, in «&c. mentioned, dated &c., have pri- ority according to the dates of the several instruments by which they vrere created as to the estates included therein. — JSooper v. Harrison, V.-C. W., 2 K. & J. ^6, 116. OH. XX. S. XIV.] PEIOMTT — NOTICE. 587 2. Priority acquired by Prior Notice declared. " Decxaee, that notwithstanding the mortgage of the Deft D. is prior in date to that of the Pits, they, by having first given notice of their mortgage (to &c., one of the trustees of &o.), have acquired and are entitled to priority over the Deft D. in respect thereof." — Cons. Investment, «fcc. Co. v. BiUy, V.-C. S., 1 Giff. 371. 3. Priority acquired by Regiitration. Declare that notwithstanding the mortgage of PI., dated &c., on the D. property for £ is prior in date to the mortgages thereon of the Pit, the Pit has acquired, by virtue of registration of his mortgage deeds, and is entitled to priority over the said H. in respect thereof, and that therefore the said mortgage of the said H. is fraudulent and void as against the securities of the Pit. — Usual accounts of what is due to Pits ; Account of rents and profits with wilful default, and amount to be deducted. — Usual fore- closure decree. — Liberty to apply. — N'eve v. Pennell, V.-C. W., 2 H. & M. 170. NOTES. PRIORITY — NOTICE. On the principle Qui prior est tempore, potior est jure, priority of time gives the better equity as between equitable incumbrancers, if their equi- ties are in all other respects equal, and if such priority has not been lost by any act or neglect: Rice v. R., 2 Drew. 76; Cory v. Eyre, 1 D. J. & S. 149; Willoughby v. W.,\ T. E. 763, 767; Rooper v. Harrison, 2 K. & J. 86. If, however, an equitable incumbrancer, though not technically first in date, has the better equity by possession of the legal estate, or the better right to call for it, his right to hold the estate will not be interfered with in favor of an incumbrancer prior In date, or, though subsequent in date in the position of purchaser for value without notice: see Thorpe V. Holds- worth, 7 Eq. 139, 146 (and cases there cited) ; Pease v. Jackson, 3 Ch. 576 (reversing 16 W. R. 58), reviewed and followed by the Court of Appeal in Robinson v. Trevor, 12 Q. B. D. 423. So also if the security be of lands in a register county, priority will be given to the incumbrancer, legal or equitable, who, though not first in date, has, without actual notice, first registered his charge: Wight's Trust, 16 Eq. 41; Neve v. Pennell, 2 H. & M. 170; Credland v. Potter, 18 Eq. 350, 10 Ch. 8. But if the legal estate has been obtained, or prior registration made, by a person who at the time of his original advance has had notice of a prior existing incumbrance, he will not gain priority, as his equity is not equal: 588 MORTGAGES, [PART IV. Lacey v. Ingle, 2 Ph. 422; Benham v. Keane, IJ. & H. 685, 3 D. F. & J. 318. So also if he is afEected with notice of any fraud affecting the title of the person from whom he obtains the legal estate: see Jones v. Powles, 3 My. & K. 581 ; Ogilvie v. Jeaffreson, 2 Giff. 353 ; Maxfield v. Burton, 17 Eq. 15; and see Sharpies v. Adams, 32 Beav. 213, 216. If the purchaser has obtained the legal estate for value without notice of any fraud or breach of trust committed by the person from whom he purchased it, he can hold it against all persons defrauded by the convey- ance of the vendor: Pilcher v. Rawlins, 7 Ch. 259 (disapproving Carter v. C, 3 K. &. J. 617); Hunter v. Walters, 7 Ch. 75. And by paying his money bona fide and without notice of any other title, he acquires the right to get in and hold the legal title, although between payment and getting in the legal title he may have had notice of some prior lien or title: see Blackwood v. London Chartered Bank, L. R. 5 P. C. 92, 113. A man may lose the advantage of priority, or be prevented from acquir- ing priority: (a.) By acts of commission, as by suppressio veri or suggestio falsi to a person entitled to a full and correct representation of a fact: Hobbs v. Norton, 1 Ver. 126 ; Savage v. Foster, 2 L. C. Eq. 620 ; Spence, vol. ii. 765. (b.) By acts of omission or negligence, as by neglecting to register a deed where the necessity of registration is imposed by statute : Warburton V. Loveland, 6 Bligh N. S. 1; and see notes " Priority as affected BY Rbgisteation," inf. p. 591; "Mortgages of Ships," sup. p. 536. A mortgagee prior in date may also be postponed by permitting the mortgagor, without reasonable excuse or explanation, see Jones v. Shind, 17 W. R. 1091, to retain the title-deeds (unless the mortgage be of an undivided moiety: see Carter v. C, 3 K. & J. 618); or by handing them over to him without insisting upon their return, so as to enable him to raise money on their security: Briggs v. Jones, 10 Eq. 92; Perry-Herrick V. Atwood, 3 D. & J. 21, 25 Beav. 205; Evans v. Bicknell, 6 Ves. 174; and see Dowle v. Saunders, 2 H. & M. 242. An equitable mortgagee, by his neglect to obtain possession of the title- deeds, may also be postponed to a subsequent equitable mortgagee who has got possession of them: Layardy. Maud, 4 Eq. 397. So also negligence by a mortgagee by deposit, in omitting to examine a parcel of documents falsely represented by the borrower to be the title- deeds, or which contained the earlier deeds only, has been. held insufficient to postpone him to a subsequent purchaser or incumbrancer who has obtained possession of the real or material title-deeds: Hunt v. Elmes, 2 D. F. & J. 578, 28 Beav. 631; Dixon v. Muckleston, 8 Ch. 155; Roberts ■V. Croft, 2 D. & J. 1; Lacon v. Allen, 3 Drew. 579; and see Heath v. Crea- lock, 10 Ch. 22; WaUy v. Gray, 20 Eq. 238. Actual notice must be recent, and must come from some person inter- ested in the matter: see Hine v. Dodd, 2 Atk. 275; Hurst v. H., 16 Beav. 372 ; Sugden V. & P. 755. Notice of an instrument relating to an estate is notice of every other instrument which would be discovered by an examination of the first: CH. XX. S. XIV.] PEIORITT — NOTICE. 689 Neesom v. Clarkson, 2 Hare, 163; Coppin v. Fernyhough, 2 Bro. C. C. 291; but notice that a deed is in contemplation is not material : Cothay v. Sydenham, 2 Bro. C. C. 391 ; Ware v. X. Egmont, 4 D. M. & G. 460, 473. As to the efEect of notice by recital, see Montefiore v. Browne, 7 H. L. C. 241, 269; Fraser v. Jones, 5 Hare, 481; and see Dart V. & P. 864, 875, 876. Constructive notice, which when proved will have the same effect as actual notice, see Prosser v. Rice, 28 Beav. 68, will be imputed if there has been wilful blindness, or gross negligence amounting to fraud: Whit- bread v. Jordan, 1 Y. & C. 303 ; Jackson v. Rowe, 2 Sim. & St. 472 ; Ken- nedy V. Green, 3 My. & K. 699 ; as by abstaining from making inquiry, or disregarding circumstances which are such as to show the necessity of further inquiry: Ware v. L. Egmont, 4 D. M. & G. 460; Jones v. Williams, 24 Beav. 47; Hewitt v. Loosemore, 9 Hare, 449, 458; Stein v. S., 16 W. R. 69; and see Dart V. & P. 868, 869. Seeus if the person making inquiry has been honafide misled or put off by a reasonable excuse, or by an untrue statement as to the nature of the deed or fact of which it is sought to affect him with notice: Jones v. Smith, 1 Ph. 244, 1 Hare, 55; Dixon v. Muckleston, 8 Ch. 155; Colyer v. Finch, 5 H. L. C. 905; or the circumstances are not such as to raise any suspicion: Perry v. Holl, 3 D. F. & J. 38; and see Hipkins v. Amery, 2 Giff. 292; Greenfields. Edwards, 2 D. J. & S. 582. And according to recent cases the doctrine of constructive notice will not be extended: see Hunter v. Walters, 7 Ch. 75; Ware v. L. Egmont, 4 D. M. & G. 473; and see Dart V. & P. 880. As a general rule, notice to a solicitor or agent is notice to the client or principal: Le Neve v. i., 2 Lead. Cas. Eq. 32, 67; Espin v. Pemberton, 3 D. & J. 547 ; Boursot v. Savage, 2 Eq. 134 ; and the client is affected by the soUcitor's knowledge of all matters which it was his professional duty to ascertain: Rolland v. Hart, 6 Ch. 678 ; Atterbury v. Wallis, 8 D. M. & G. 454 ; and which were ascertained in his professional capacity in the course of the transaction which was the subject of the suit: Spaight v. Cowne, 1 H. & M. 359; Hiern v. Mill, 13 Ves. 114, 120; unless the solici- tor's own fraud would have been discovered by his disclosure of the fact, with notice of which it is sought to fix the client; in which case the ordi- nary presumption is negatived: Waldy v. Gray, 20 Eq. 238, 251; Kennedy V. Green, 3 My. & K. 699 ; Thompson v. Cartwright, 33 Beav. 178, 2 D. J & S. 10. See also Boursot v. Savage, 2 Eq. 134. The client is also affected by the negligence of his isolicitor to make proper inquiry: Hopgood v. Ernest, 3 D. J. & S. 116; Bowen v. Cobb, 18 W. R. 911. And of two innoceiit parties, the principal or the c. q. tr., whose agent or tnostee has committed the fraud rather than the stranger who has dealt with the agent or trustee, must bear the loss: Hunter v. Walters, 7 Ch. 75; Pitcher v. Rawlins, lb. 259; Turlon v. Meacham, 17 W. R. 429; unless such stranger has neglected to ascertain the real position of the trustee with whom he deals: Shropshire Union Co. v. The Queen, L. R. 7 H. L. 496 (reversing L. R. 8 Q. B. 420) ; and see Maxfield v. Burton, 17 Eq. 15. In order to fix the principal with constructive notice, the employment of the agent must have been of a responsible nature; in the case of a solicitor 690 MORTGAGES. [PABT IV. he must have acted as the adviser of his client pro Mc vice, and his knowl- edge must have been in the matter in -which the client employs him, and must have been material to the transaction : Wyllie v. Pollen, 3 D. J. & 8. 596; Espin v. Pemberton, 3 D. & J. 547; Lloyd v. AUwood, lb. 614; and see Bulpett v. Sturges, 18 W. R. 796, 22 L. T. N. S. 739. Where the mortgagor was a solicitor, and prepared the deed, no other solicitor acting for the mortgagee, the mortgagor is not the solicitor for the mortgagee to the extent of fixing him with constractive notice of prior incumbrances or facts connected with the title known to the mortgagor: Espin V. Pemberlon, 3 D. & J. 547 ; Hewitt v. Loosemore, 9 Hare, 449. A solicitor who had prepared a mortgage and afterwards advanced his money on mortgage of the same property, was held to have notice of the prior mortgage: Perkins v. Bradley, 1 Hare, 219. Concealment with consent of mortgagor, by a solicitor acting for both mortgagor and mortgagee, of a material fact or document will prevent the mortgagee from being affected by the solicitor's knowledge: Sharpe v. Foy, 4 Ch. 35. And as to the effect of suppression, misrepresentation, and concealment of material facts in negativing the presumption of notice to the client of material facts within the solicitor's knowledge, see Reynell v. Sprye, 1 D. M. & G 6; Partridge v. Usborne, 5 Euss. 232; Sankey v. Alexander, I. R. 9 Eq. 259. As to the remedy of a mortgagee where the existence of an incum- brance affecting the security has been suppressed, see Clark v. Hoskins, 37 L. J. Ch. 561, 36 lb. 689. By the omission of the solicitor preparing articles of settlement after- wards carried out, to ascertain whether the title-deeds then at the settlor's bankers had been deposited as a security, those who claimed under the articles were deprived, as against the bankers, who claimed under the deposit made by the settlor to secure an advance, with an agreement to execute a legal mortgage, of their right as purchasers for value without notice : Maxfield v. Burton, 17 Eq. 15. But non-production of the title-deeds for an apparently satisfactory reason to the mortgagee's solicitor will not in itself be deemed proof of fraud, or of such negligence as to affect the interests of his client the mortgagee by constructive notice of a prior equitable mortgage : The Agra Bank v. Barry, L. R. 7 H. L. 135. And omission by the solicitor of a legal mortgagee to examine a parcel of deeds given to him before execution of the mortgage, containing the earlier deeds only, has not been held wilful negligence such as to entitle a prior equitable mortgagee, with whom the later and more material deeds had been deposited, to enforce priority: Ratcliffe v. Barnard, 6 Ch. 652. Notice that a person is in possession of property is enough to put a man upon further inquiry as to his title: Allen v. Anthony, 1 Mer. 282; Daniels v. Davison, 17 Ves. 433 ; but not to the extent of holding a mort- gagee affected with notice of an arrangement between father and son, by which the son who effected the mortgage was put forward as absolute owner: Hughes v. Seanor, 18 W. R. 1122; nor, in cases of vendor and purchaser while the matter is in contract, is a purchaser with notice of a tenancy bound to ascertain from the tenant the temis of his tenancy: CH. XX. S. XIV.] PRIORITY — NOTICE. 691 Caballero v. Eenty, 9 Ch. 44; see contrh, James v. Lichfield, 9 Eq. 51; PkUlips V. MUler, L. R. 9 C. P. 196. PRIORITY AS AFFECTED BY REGIBTRATIOIT — LIS PENDENS. Although an equitable mortgage by deposit of deeds only is incapable of registration : Sumpter v. Cooper, 2 B. & Ad. 223, 226 ; both a deposit of deeds accompanied by a memorandum, see Agra Bank v. Barry, L. R. 7 H. L. 135; Re Hamilton, 9 Ir. Ch. R. .512; see also Copland v. Davies, L. R. 5 H. L. 358, and an agreement to deposit deeds and execute a legal mortgage upon demand must, if in respect of lands in a register county, be registered; and if unregistered will be postponed to a subsequent reg- istered charge: Neve v. Pennell, 2 H. & M. 187; Moore v. Culnerhouse, 27 Beav. 639; Wight's Trust, 16 Eq. 41 (not following Wright v. Stanjield, 27 Beav. 8) ; and see Re M' Kinney, I. R. 6 Eq. 445. So also an unregistered memorandum of further charge in favor of first mortgagee (registered) will be postponed to a second-registered mort- gage without notice of the further charge: Credland v. Potter, 18 Eq. 350, 10 Ch. 8. Priority acquired by registration can only be displaced by clear, dis- tinct, and positive notice amounting to fraud: Chadwick v. Turner, 1 Ch. 310; Wyatt v. Barwell, 19 Ves. 435; and constructive notice of a prior unregistered charge will not be imputed upon the mere omission by the solicitor of a subsequent registered incumbrancer to insist upon produc- tion of the deeds or to make the same inquiries as would be necessary in a non-register county: Agra Bank v. Barry, L. R. 7 H. L. 135 (disap- proving Wormald v. Maitland, 35 L. J. Ch. 69). Bat if at the time of making his advance a subsequent incumbrancer has actual notice of a prior (unregistered) charge, he cannot obtain prior- ity by registration: Benham v. Keane, IJ. & H. 685, 3 D. F. & J. 318; Fordv. White, 16 Beav. 120; Rollandv. Hart, 6 Ch. 678; secus, if notice was not received by the subsequent incumbrancer until after he had taken his security: Elsey v. Lutyens, 8 Hare, 157. Registration is not notice of the registered deed; and a legal mort- gagee (registered) will not, by the existence of a prior registered equi- table mortgage of which he had no notice, lose the benefit of his legal estate: Moreeock v. Dickens, Amb. 678; Underwood v. L. Courtown, 2 Sch. & Lef. 64; BusheU v. B., 1 lb. 103; Bussell Road Pm-ch. Moneys, 12 Eq. 78. And not being bound to search the register: Lane v. Jackson, 20 Beav. 535; a man having partially searched will not be deemed to have notice of any instrument not registered within the period covered by the search : Hodgson v. Dean, 2 Sim. & St. 221, Sugden V. & P. 7«1 ; and see Proc- ter V. Cooper, 2 Drew. 1. Of two deeds registered on the same day, that which is denoted by the earlier number will, in the absence of direct evidence to the contrary, be presumed to have been first registered: Neve v. Pennell, 2 H. & M. 170. In the absence of express notice, a lis pendens, in order to affect pur- chasers or mortgagees with notice, must be registered, and after every five years re-registered, as directed by 2 & 3 V. c. 11. When so registered it 592 MOKTGAGKS. [PART IV. is notice of a claim in respect of the property, the subject of the suit, but does not of itself create a charge or lien on the property: Bull v. Huichens, 32 Beav. 615; Pratt v. Bull, 1 D. J. & S. 141, 4 Giff. 117; and see Tyler V. Thomas, 25 Beav. 47; Dart V. & P. 873 ; Sugden V. & P. 760. Independently of the necessity of registering a lis pendens under 2 & 3 V. c. 11, in order to afiect purchasers, &c., with notice, the principle was, that pendente lite neither litigant party could alienate the property in dis- pute so as to affect the rights of his opponent, and did not rest on notice implied or constructive: Bellamy v. Sabine, 1 D. & J. 566, 578, 580. For the doctrine of lis pendens, see 1 Jones on Mortgages, § 599; 1 Story Eq. Jur. §§ 405, 406; 2 Pomeroy Eq. Jur. § 632 et seq. Section XV. — ANNUiTiBa. 1. Redemption of Annuiti/. Declare the Pit M. entitled to redeem the annuity of £ in the pleadings mentioned, upon payment of the principal sums of £ and £ , and interest thereon after the rate of £ per cent per annum ; And Let the following accounts be taken, that is to say: 1. An account of what is due to the Defts J. &c., as executors of R. the testator &c., for principal and interest, after the rate of £4 per cent per annum, from &c. ; And for their costs of this suit, such costs to be taxed &c. ; 2. An account of what sums the said R., in his lifetime, or the Defts J. &c., his executors, since his decease, have received on account of the said annuity ; And Let what shall appear to have been so received on account of the said annuity be applied, first in discharge of tha interest of the said sums of £ and £ , and then in reduction of the principal ; And Let, upon the Pit paying to the Defts J. &c. what shall be certified to remain due to them for principal, interest, and costs as aforesaid, after such deductions as aforesaid, within &c., the said Defts deliver up to the Pit his securities for paj'ment of the said annuity, upon oath, and release and assign the said annuity to the Pit, or to whom he shall appoint, such release and assignment to be settled &c., in case the parties difier ; — In default Pit's bill to stand dismissed. — Liberty to apply. — Moore v. Howe, M. R., 12 Nov. 1829. For decree for redemption of one annuity, and setting another aside for fraud, see Matthew v. Hanscomb, L. C, 27 Feb. 1771; and see Byne v. Vivian, L. C, 28 Jan. 1800; Knight v. Bowyer, M. K., 23 Beav. 609. CH. XX. a. XV.] ANNUITIES. 593 2. The Like. Declake that the indentures of grant of annuity dated &c. in the pleadings mentioned ought to stand as a seGiwity for the amount which upon taking the accounts hereinafter directed shall be found due from the Pit to the estate of W. deceased ; Account of all re- ceipts, payments, and advances of or by the said W. deceased, for, to, or on behalf of the Pit, and of all money due or owing from the Pit to the estate of W. upon the mortgage security dated &c. ; Declare that in taking such account the Pit is chargeable with inter- est at the rate of £5 per cent per annum on so much only of the several consideration moneys expressed in the said several grants of annuity in the pleadings mentioned, as at the dates of the several indentures granting the same respectively shall appear to have been due and owing from the Pits to the said W. ; And upon pay- ment by the Pit into Court &c. of the amount which shall be certi- fied to be due from the Pit upon such account within nine months after the Chief Clerk shall have made his certificate, together with the Defts' costs of this suit, to be taxed &c.. Let the Defts respec- tively, at the Pit's cost, reconvey &c., and deliver up &c. ; But in default Pit to stand foreclosed and to execute proper assurances. — Liberty to apply as to the amount paid into Court. — Jjysaght v. WestmacoU, M. E., 33 Beav. 417, 3 N. R. 599. 3. Arrears of Freehold Rent-charges raised by Sale. Declare that the Pit and all other the grantees or persons now entitled to the benefit of the several rent-charges of 40s. each, granted by S. as in the bill mentioned, and charged upon and issu- ing out of the hereditaments comprised in the indenture dated &c., are respectively entitled to a charge upon the said hereditaments for the amount due to them for the arrears of such rent-charges respectively, and to have the same raised by sale of the said here- ditaments ; And Let the following &c. : 1. An inquiry who are the persons other than the Pit now entitled to the benefit of such rent- charges respectively ; 2. An account of what is due to the Pit for the arrears of his rent-charge of 40s. secured by the said indenture, and to all other the gi-antees or other persons entitled to the benefit of the several other charges charged upon and issuing out of the hereditaments as aforesaid. — Tax all parties their costs of suit ; And Let the said hereditaments, or a competent part thereof, to raise the amount due to the Pit and all other the grantees or per- sons now entitled to the benefit of such several rent-charges for 38 594 MORTGAGES. [PABT IT. such arrears, and for the costs of all parties in this suit, and also the balance due to the receiver appointed in this cause, be sold with the approbation of the Judge. — Pay purchase-money into Court. — Continue receiver. — Adjourn &c. — Liberty to apply. — White V. James, M. R., 17 Nov. 1858 ; and for the like decrees see Godlee v. James, M. E., 19 Nov. 1868 ; Sali v. Burst, 2 J. & H. 76. NOTES. On the question whether the transaction is a loan or a purchase of an annuity absolutely: see Bulwer v.' Asthy, 1 Ph. 422; Vemer v. Winstanley, 2 Sc. & L. 393. The Court will incline to hold annuities redeemable: Longuet v. Scawen, 1 Ves. 402 ; and in the case of a life annuity with a power of repurchase, such power will receive a liberal construction: Joy v. Birch, 4 CI. & F. 57; Sugden, Law Prop. 667, 668. The rule is not to give interest upon arrears of an annuity, though it will be allowed where the grantor has been guilty of misconduct for the purpose .of evading payment, or where his incumljrancers have prevented perception of the annuity: Martyn v. Blake, 3 D. & War. 125; E. Mansfield v. Ogle, 4 D. & J. 38. As to the right of an annuitant or grantee of a rent-charge to have the arrears raised by sale, see Eall v. Hurst, 2 J. & H. 76; White v. James, 26 Beav. 191; sup. Form 3. In the absence of special contract, a policy of assurance effected by the grantee of an annuity by way of security on the grantor's life belongs, on redemption of the annuity, to the grantee, and not to the grantor: Knox v. Turner, 5 Ch. 515, 9 Eq. 155; Bashford v. Cann, 33 Beav. 109; Gottlieb V. Cranch, 4 D. M. & G. 440; Courtenay v. Wright, 2 GifE. 337. CH. XXI.] SUEETYSHIP. 595 CHAPTER XXI. SURETYSHIP. 1. Contribution between Co-sureties and Principal, in Suit by Surety. Let an account be taken of all sums of money paid by A. [surety) the testator in the pleadings named, and the Pits his executors, or either of them, agreeably to the undertaking in the pleadings men- tioned, dated &c., and Let interest be computed on such sums of money, at the rate of £4 per cent per annum, from the times the several payments were made ; Tax the Pits' costs of this suit (ac- tion) ; And Let the Deft B. {co-surety) within &c. pay to the Pits {names) one moiety of what shall be certified to be due for principal and interest as aforesaid, together with their costs of this suit (action) when so taxed ; And Let the Deft C. {pnncipal debtor, on whose default A. had been compelled to pay) within &c. , pay to the Pits {names) the other moiety of what shall be certified to be due for principal and interest as aforesaid, and also pay to the Deft B. the principal and interest before directed to be paid by him to the Pits, together with the costs of the said Deft B., to be taxed &c., and also the costs which he shaU pay to the Pits under the direction before given. — Liberty to apply. — Lawson v. Wright, M. R., 1 Cox, 275. 2. Account of Payments by Surety, and Inquiry as to Contri- bution by Co-sureties. Let the following &c. : 1. An account of all and every sum and sums of money which hath or have been paid by the Pit, as one of the sureties of the Deft G., as collector of the several taxes for the parish of &c. as in the pleadings mentioned ; 2. An inquiry whether the Deft J., another of such sureties, is in such pecu- niary circumstances that he can contribute towards the payment of the sums, if any, which have been paid by, or may be payable to, the sureties of the said Deft Gr., or any of them ; But the said 596 SURETYSHIP. [part IV. inquiry is to be without prejudice to any question between the Pit and the Deft J., or between the said Deft and all or any of his co- Defts ; And the Defts S. and P. not desiring any inquiry whether the Deft F. can contribute towards the payment of the said sums, this Court doth not think fit to direct such, inquiry. — Adjourn &c. — Sitchmcm v. Stewart, V.-C. K., 22 Feb. 1854. 3. Further Order, after Certificate finding that G-., the Principal Debtor, and F., were insolvent, and that J. was not able to pay more than his own Costs, and a Part only of his Full Share — Interest — Costs of resisting Contribution. " Let the Defts S. and P., as the executors of F. S., one of the co-sureties with the late Pit H. for the Deft G., as the collector &c., under the several bonds, dated &c., on or before the day of , pay to the Pits T. and W., as executors of the said H., the sum of £ , being one-fourth part of £ , which is the aggre- gate amount of the sums amounting to £ paid by the said late Pit in satisfaction of the said bonds, and for the costs in the said Chief Clerk's certificate mentioned^ and of £ agreed upon as the amount of the interest on the same at the rate of £4 per cent per annum, from the respective times when the several principal sums were paid by the said H. ; And Let the Deft R., another of such co-sureties, within the time aforesaid, pay^ to the Pits T. and W. the sum of £ , being one other fourth part of the said sum of £ ; And Let the Deft J., another of such co-sureties, within the time aforesaid, pay to the Pits T. and W. the sum of £ , agreed to be paid by him ; And Let the Defts S. and P., within the time aforesaid, paj' to the Pits T. and W. the sum of £ , agreed to be paid by them in respect of the one fourth share that ought to have been contributed by the Deft J." — Like direction as to the Deft R. — " And Let the Deft G., within the time aforesaid, repay to the said Pits T. and "W. the sum of £ , being the difference between the said sum of £ and the sum of £- , the amount of the several sums so to be paid to them as aforesaid, and also repay to the Defts S., P., R., and J., respectively, the several amounts that shall be paid by them to the Pits under the directions hereinbefore contained ; And the Pits and the last-named Defts not asking any direction for contribution against the Deft F., another of such co-sureties, this Court does not think fit to direct such con- tribution ; And Let the Defts S., P., and R., pay to the said Pits T. and W. so much of the costs of these suits (actions) up to this time, as have been occasioned by their insisting that they were not liable to contribute anything towards payment of the said sum of CH. XXI.] SURETYSHIP. 697 £ ." — No other costs on either side. — Hitchman v. Stewart, V.-a K., 3 Drew. 271. For order on further directions, in suit by creditor, that the Defts, the sureties, who had paid what was certified to be due to the Pits for their demands and costs, ought to be indemnified by their co-Deft, the principal debtor, with liberty to them to prosecute the original decree for payment against him in the names of the Pits, indemnifying the Pits against any costs or damages on that account: see Weston v. WooCball, L. C, 17 Jan. 1747. 4. Surety declared entitled to Proportion of Dividend from principal Debtor s Estate. [Pit was surety to the extent of £5,000 for advances to S. by the Bank. — S. died. — The Bank proved under an administration decree for the whole debt, and received dividends. — Pit when sued at Law paid the £5,000, and not knowing of the dividends received, did not plead set-off.] Declake that the Pit T. is entitled to stand in the place of the L. & C. Banking Co., as regards the proof made by them against the estate of S., in the suit of G. v. S. m the pleadings mentioned, to the extent of £5,000 ; and decree the same accordingly ; And Let M. (the public officer) pay to the Pit T. any dividends received by the said Banking Co., in respect of the said sum of £5,000 under such proof, together with interest thereon at the rate of £4 per cent per annum from the day of to the time of payment, and any future dividends to be received by the said Banking Co. in respect thereof. — Deft to pay Pit's costs of suit. — Liberty to apply. — Thornton v. McKewan, V.-C. W., 1 H. & M. 525 ; Goodwin v. Gray, M. R., 22 W. R. 312. 5. The like Declaration. Declaee that the Pits are respectively absolutely entitled to so much of the dividends received, and hereafter to be received, by the Defts in respect of the debt of £657 for which the Defts have proved against the estate of H., the bankrupt, as bears the same proportion to the total amount of such dividends as the sum of £250, which each of the Pits have paid to the Defts in pursuance of the Pit's guarantees, bears to the total amount of the said debt. — Hobson V. Bass, L. C, 6 Ch. 792. 598 SURETYSHIP. [part IV. 6. Contribution between Co-directors in respect of the Liability on Shares which, pursuant to a Resolution ultra vires, had been purchased, and transferred into the Name of the Pit, one of the Directors, in Trust for the Company. Let the Pit pay to Deft L. his costs of this suit (action), ex- cluding therefrom the costs of his appearance at the hearing ; and the Pit is to be at liberty to add what he shall so pay to his own costs. —Declare that the Pit and the Defts M., F., C, S., and K., became jointly and severally liable to contribute to and make good the calls paid, and all further calls, if any, to be paid by Pit on the two hundred and fifty shares transfeiTed to him and the Deft L., as in the pleadings mentioned; and that Defts M., F., C, and S., and the Deft L., as such representative as aforesaid, and the Deft B. as the trustee in liquidation of the Deft K., and out of his Cdtate, ought respectively to repay to the Pit the respective shares of the Defts M., F., C, S., R., and K., of all such calls ; and as to the calls already paid, with interest on such shares respectively at the rate of £4 per cent per annum from the respective dates of the payment of such calls by the Pit until the date of this decree ; And it appearing by the affidavit of &c. that Pit has already paid in cash, or been allowed on account by the liquidators, the sum of £2,312 in respect of the said calls, in the following sums, on the following dates, &c. ; Let each of the Defts M., F., C, and S. pay to the Pit A. within ten days from the service of this decree the sum of £ , being his one-seventh share of the aggregate amount of the several principal sums paid by the Pit, together with £ (being, as appears by the said affidavit, the aggregate amount of interest at four per cent per annum, less income tax on the princi- pal sums, to the date of this decree, and further interest at the same rate until payment thereof) ; And the Pit is to be at liberty to prove under the liquidation of the Deft K. for the like sum of £ . being his one seventh share of the said principal sums, and for the sum of £ , being, as appears by the said affidavit, the aggregate amount of interest at four per cent per annum, less income tax on his one-seventh share of the said principal sums of £ respec- tively, from the respective dates of payment of the said principal sums respectively, to the 1st Oct. 1873, being the date of the appointment of the Deft B. as trustee of Deft K.'s liquidation ; And Let Defts M., F., C, and S., and Deft B., pay the Pit his costs of this suit (action) , including therein such costs as he shall have paid to the Deft L. , such costs to be taxed &c. — Liberty to the Pit to apply in Chambers as to the payment of such portion of CH. XXI.] SURETYSHIP. 699 the said sums of £ , for which Pit is to be allowed to prove under the liquidation, as he may be unable to recover thereunder, and as to the payment of any subsequent interest in respect of the one seventh share of the Dett K. — And liberty to Pit, in case of his failing to recover from any of the other Defts the sums hereinbefore ordered to be paid by them respectively for principal and interest as aforesaid, to apply in Chambers as he may be advised, to obtain contribution towards the payment of such sums by the other Defts, and payment to him of such contributions, and generally to apply. Ashurst V. Mason, V.-C. B., 20 Eq. 225, 23 W. E. 506. 7. Mutual Marine Insurance — Contribution. Deciare that the Pit H. is entitled to be paid £600, the amount of his insurance as for a total loss, the deduction of £15 per cent to be made in respect of the cargo exceeding the amount specified in the rules of the C. Insurance Association in that behalf; And Let the Defts B. &c. {Directors) within ten days after ser- vice of this decree make an order upon the Deft X. the Secretary of the said Association for the paymentof the sum of £510, together with interest thereon at the rate of four per cent per annum from the date of this decree to the day of payment ; And Let the Deft X., within ten days after he shall have received the said order from the said Defts B. &c., draw upon the members of the said Association for the said sum of £510 and interest, pursuant to the said order, according to the rules of the said Association — Defts B. &c. to pay Pit's costs. — Declare that the said Defts are entitled to be in- demnified in respect of the said costs, and also in respect of their own costs of this cause (action) , pursuant to the rules of the said Association. — Liberty to apply. — Harvey v. Beckwith, V.-C. W., 2 H. «fc M. 429, 12 W. E. 819, 896. 8. Leave to give Notice of Claim to be indemnified by a Third Party — Ord. 1875, XVI. r. 18. Upon the application of the Deft H., and upon hearing the solicitors for the Applicants, and for the Pits, and upon reading &c., Let the Deft H. be at liberty to issue a notice claiming to be indemnified by T. of &c., pursuant to Ord. xiv. 18, of the Eules of the Supreme Court. — Fothergill v. Hankey, V.-C. M., at Chambers, 17 Dec. 1877. 600 SURETYSHIP. [PAST IV. 9. Persons served with Notice of Claim to Contribution having entered an Appearance, Leave given to defend — Ord. 1875, XVI. rr. 20, 21. Upon the application of &c., and upon hearing the solicitors for A., and also for B., who has been duly served with notice under Ord XVI. 18, of the Rules of the Supreme Court, and has entered an appearance under rule 20 of the same Order ; Let the said B. &c. be at liberty to appear by counsel, and defend this action as they may be advised, as regards the question of their alleged authority or agency, but upon no other question ; And Let them be bound by the decision of the Court or jury upon such question. — Eeserve the question of costs to be paid to or by B. &c. to be dealt with at the trial. — LetB. c&c. be at liberty to deliver a statement of defence within ten days from the date of this order, and after the delivery of such statement of defence. Let the Pit be at liberty to deliver in- terrogatories in writing for the examination of the said B. &c. — J3urks V. Myddleton, V.-C. H. at Chambers, 9 July, 1877. 10. Surety discharged hy Loss of Collateral Security, through Creditor's Negligence. " Declake that the Pit, as administratrix of her late husband S., in the pleadings named, is entitled to the benefit of the trusts de- clared by the indenture of mortgage dated &c., in the pleadings mentioned ; And it appearing that by the neglect of the Defts F. (mortgagee and bond creditor) and H. (his assignee) to give proper notice of the said\ indenture of mortgage to the trustees or trustee of the therein recited indenture of settlement dated &c., made on the marriage of the Defts J. and wife, the security by the said indenture of mortgage created on the life estate of the said J. and wife has been lost, — Declare that to the extent of the value of the said security, the Pit, and the estate of her said husband S., are discharged from the bond in the pleadings mentioned ; And Let an inquiry be made what was the value of the said securitj', and what loss has been occasioned to the estate of the said S. by the loss of the said security." — (Injunction staying execution on judgment continued.) — Defts F. and H. to pay Pit's costs of suit up to the hearing. — Adjourn &c. — Strange v. Fooks, V.-C. S., 11 W. R. 983. CH. XXI.] SUBBTTSHIP. 601 11. Discharge of Surety on the usual Bond by a Railway Com- pany under the Parliamentary Deposits Act, hy the sub- sequent passing of an Act mahing Deviations^ abandoning Part of the Undertaking, and authorizing an Increase of Capital. " Declare that by virtue of the Act of &c. {Deviation Act), A. (the surety) was without his consent placed in a position he had not contracted for and was thereby discharged from his position as surety ; " And Declare that the said requisition is suflSciently an- swered. — He Finch and Jukes's Agreement, V.-C. H., 31 July, 1877, S.C, W.N. (77)211. The order in this case was made upon a summons under the V. & P. Act, 1874, raising the question whether a surety (through whom the vendor claimed) on the usual bond given by a railway company under the Parliamentary Deposits Act, was discharged by a subsequent Act ob- tained by the company so that the bond, as was alleged by the vendor in his answer to the pm-chaser's requisitions, and decided by the Court, did not affect the surety's estate. NOTES. INDEMNITY. A surety who has been compelled to pay the debt may sue the principal debtor for repayment and the co-sureties for contribution: Lawson v. Wright, 1 Cox, 275; Uitchman v. Stewart, 3 Drew. 291, Forms 1,2, 3, sup. pp. 595, 596; and on paying off the creditor and giving an indemnity for costs, may sue the principal in the creditor's name: Swire v. Redman, 1 Q. B. D. 536, 541, 24 W. R. 1069. When money is actually due on the contract, and the creditor refuses to sue, the surety may compel the principal to discharge it: Padwick v. Stanley, 9 Hare, 627; " it being unreasonable that a man shoufd have such a cloud hanging over him," per L. K. North, Ranelaugh v. Hayes, 1 Vem. 190; Mitf. PI. 171, 172; and a surety having a bond of indemnity, although he had not actually paid anything, might file a bill in his own name alone against the executors of his obligor for administration payment of the debt and indemnity: see Wooldridge v. Norris, 6 Eq. 410. In BanelaugTi v. Hayes, sm/j., the decree seems to have declared the right to indemnity on the Deft's covenant, with liberty to the Pit to apply toties quoties if any breach of the covenant should happen. But in Lloyd v. Dimmack, 1 Ch. D. 898, where the indemnity was given in respect of breaches of covenant in a lease for a long term, the Court declined to give liberty to apply from time to time as breaches of the indemnity might occur. For the decree, see 7 Ch. D. p. 402. If the surety compounds with the creditor for less than the full amount, he can only claim as against the principal the amount actually paid: Reed 602 SURETYSHIP. [part IV. V. Norris, 2 My. & C. 361, 375; and expenses properly incurred in the matter, e. g. of the writ only, where after being served he has allowed the proceedings to run on to execution: Pierce v. WilliaTns, 23 L. J. Ex. 322; and see Knight v. Hughes, 3 Car. & P. 467. If a decree be made against principal and sxireties, leave will be given to the sureties to prosecute the decree against the principal to reimburse them what they shall have paid, and against each other to recover a proportionable contribution : Oreerside v. Benson, 3 Atk. 253, n. ; Walker V. Preswick, 2 Ves. 622, Belt's Supp. [427, 428]. A surety who is being sued by the creditor may plead a set-off due from the creditor to the principal debtor arising out of the transaction on which the liability arises: Bechervaise v. Lewis, L. R. 7 C. P. 372. A surety paying the debt is entitled to stand in the place of the creditor and to all the equities which the creditor could have enforced against the principal debtor, and all persons claiming under him: Drew v. Lockett, 32 Beav. 499 ; including the right of marshalling the securities : Heyman V. Dubois, 13 Eq. 158; except in the case of indorsers and indorsees of a bill of exchange: Duncan, Fox, §• Co. v. N. S. Wales Bk., 11 Ch. D. 88. And by 19 & 20 V. c. 97, he is entitled, on paying the debt, to have an assignment of every judgment, specialty, or other security held by the creditor: see Batchellor v. Laicrence, 9 C. B. N. S. 543; SUkY. Eyre, I. R. 9 Eq. 393 ; and to enforce his remedy against his co-surety for contribu- tion as well as against the principal for indemnity: see Re Swan, I. R. 4 Eq. 209. Voluntary payments by a surety must be appropriated according to his intention, and cannot be controlled for the benefit of the principal : Waugh V. Wren, 11 W. R. 244, 1 N. R. 142. If the creditor has received a dividend out of the estate of the deceased or bankrupt principal debtor, the surety who has paid the debt, and there- by acquired the right to stand in the place of the creditor, is entitled to be paid such dividend, and to have all future dividends secured for his benefit; and this right is not lost by his not having pleaded set-off (by receipt of the dividends) in the action in which the amount of his guaran- tee was recovered: Thornton v. McKewan, 1 H. & M. 525; Hobson v. Bass, 6 Ch. 792, Forms 4, 5, sup. p. 597; and see Midland Banking Co. v. Chambers, 4 Ch. 398, 7 Eq. 179; Goodwin v. Gray, 22 W. R. 312. If the surety is surety for a part of the debt only, and has paid that part, he is entitled to receive from the creditor a share of the dividend in the same proportion to the whole dividend as his payment bears to the whole debt: Gray v. Seckham, 7 Ch. 680; and see Exp. Holmes, Mont. & Ch. 301. If the suretyship, though limited in amount, is a guarantee for the whole amount of an ascertained debt (as distinguished from a floating balance) the surety is not entitled in reduction of his liability to the benefit of so much of the dividends as is applicable to the amount to which his liability is limited; t. e., the guarantee will not be construed as a security for part of the debt only: Ellis v. Emmanuel, 1 Ex. D. (C. A.) 157; secus where the limited security is for a floating balance: S. C. ; Hobson v. Bass, 6 Ch. 792, 794. Where both principal and surety became bankrupt, and the creditor CH. XXI.] SURETYSHIP. 603 received dividends of 10s. in the pound from each estate, the assignees of the surety were held entitled to all future dividends under the creditor's proof out of the principal's estate until they should be recouped the amount paid by the surety's estate: Exp. Johnson, Re Bulmer, 3 D. M. & G. 218. As against the principal debtor, and his co-sureties, a surety is entitled to interest on sums paid by him: Lawson v. Wright, 1 Cox, 275; Hitchman V. Stewart, 3 Drew. 271, Forms 1, 3, pp. 595, 596; Re Swan, I. R. 4 Eq. 209 ; but as against the estate of the deceased principal he is not so en- titled, though where a fund, assigned as a further security, had made interest, he was allowed interest out of that interest: Caulfield v. Ma- guire, 2 J. & L. 164. A surety's right to indemnity is not lost by his joining as creditor in a composition deed, whereby the principal's creditors agreed to accept 15s. in the pound, but the suretyship creditor expressly reserved all collateral securities for his debt, and afterwards received the balance from the surety: Chse v. C, 4 D. M. & G. 176; nor is his general right against all property of the principal lost by his taking a specific security against loss by his suretyship: Brandon v. S., 3 D. & J. 524. Sureties who after payment of the debt have received a dividend on a proof against the joint estate of a baiiking firm in which their principal was a partner, cannot prove against the principal's separate estate until they have applied to expunge the joint proof : Exp. Carne, 3 Ch. 468. On the question of implied contract of indemnity, see Drysdale v. Lov- ering, L. R. 10 C. P. 196, and oases there cited. The right to indemnity extends to liability as well as to loss incurred by the agent on behalf of his principal: Lacey v. Hill, Crowley's Claim, 18 Eq. 183. CONTRIBUTION. Where one of several persons has paid that which is the debt of all he is entitled to enforce contribution, and this right, which is founded on principles of equity and does not depend upon contract, is not affected by the circumstance that the liability arises out of a transaction which, strictly speaking, is unauthorized or ultra, vires : Ashhurst v. Mason, 20 Eq. 225; and see Stirling v. Forrester, 3 Bligh, 590, and cases collected Bering v. L. Winchelsea, 1 Lead. Cas. Eq. 106, 112. If the contract is one transaction, whether they are bound by several instruments or not, and whether the fact is known or not, the sureties are all liable to contribute, the same as if joined by one instrument: Bering V. L. Winchelsea, 1 Lead. Cas. Eq. 113; Craythorne v. Simmons, 14 Ves. 165; and the right of contribution arises, though the undertaking is not on the face of it a co-suretyship, if upon the evidence that relation is established: Whiting v. Burke, 6 Ch. 342, 10 Eq. 539; and see Ashhurst v. Mason, 20 Eq. 225. Tf , however, the guaranty is distinct, or there is no one instrument upon which they are all jointly liable (see Arcedeckne v. L. Howard, 20 W. R. 879, 571), there is no contribution between co-sureties: Coope v. Twynam, T. & R. 426; Pendlebury v. Walker, 4 Y. & C. 424. 604 SURETYSHIP. [PAEI IT. Where two or more sureties contract severally, ttie creditor does not break the contract with one of them by xeleasing the other. The contract remaining entire, the surety, in order to escape liability, must show an existing right to contribution from his co-surety which has been taken away or injuriously affected by his release. Held, in an action upon a guE^rantee, that a plea to the effect that M. -was the Deft's co-surety, and had been released in consideration of a new guarantee given to the Pit, constituted no defence; the plea nowhere averring or implying that the liability was joint, or that the Deft became surety on the faith of M.'s co- suretyship, or that any right of contribution had arisen against M. which had been taken away or injuriously affected, or that the Deft had suffered any damage or injury by the substitution described: Ward v. National Bank of New Zealand, 8 App. Cas. 755. Each co-surety must contribute his proportionate part of the loss or debt: see 1 Smith L. C. 156; Re Macdonough, I. B. 10 Eq. 269; and if some of the co-sureties are insolvent, those solvent must distribute the loss equally amongst them: see Hitchman v. Stewart, Form 3, sup. p. 596. One of two sureties from whom the full amount due on a recognizance has been recovered, is entitled to use the recognizance to recover from the estate of his co-sui'ety not only half the amount paid, but interest thereon: Re Swan, I. R. 4 Eq. 209. For the mode of working out a, joint and several liability affecting a class of persons of whom some had died and others become bankrupt, see Joint Stock Discount Co. v. Brown, 8 Eq. 376, 406 ; Ashhurst v. Mason, Form 6, sup. p. 598. If the creditor release one co-surety, he may still claim half the debt against the other, who, notwithstanding the release, is entitled to contri- bution from his co-surety: Exp. Giffard, 6 Ves. 805 ; and see Whiting v. Burke, 6 Ch. 342, 10 Eq. 539. Under the former practice a surety, who had unintentionally given his principal a release which would bar his claim against a co-surety for con- tribution, was held entitled to relief at law on equitable grounds: see Vorley v. Barrett, 5 W. R. 137, 1 C. B. N. S. 225. As 'to the right to contribution between co-Def ts in respect of the costs of suit which one Deft has paid, see Pkt v. Bonner, 1 Y. & C. C. 670. Where one of two co-sureties is being alone sued for the debt, the Court, or a Judge, is empowered, by Ord. 1875, xvi. 17, on notice being given to the co-surety not a party to the action, from whom the Deft claims to be entitled to contribution or indemnity, to make such order as may be proper for having the question determined; and by r. 18, notice to the person not a party to the action — in the form given in App. B., Form 1, may by leave of the Court or a Judge be issued; and see Forms 8, 9, sup. pp. 599, 600. The exercise of this power is discretionary : see Bower v. Hartley, 1 Q. B. D. 652; Swansea Shipping Co. v. Duncan, 1 Q. B. D. 644; and the effect is not to give immediate relief against the third person served with notice, but to obtain a decision of the question in the action which will be bmding in proceedings by the original Deft against such third per- son : see Treleaven v. Bray, 45 L. J. Ch. 113, 114 j Padvnck \. Soott, 2 Ch. D. 736, 744. CH. XXI.J SURETYSHIP. 605 DISCHARGE AND RELEASE OF 8UKETT. It is essential to the contract of suretyship: (I.) That there shall have been perfect good faith, and that no material fact shall have been concealed from the surety or misrepresented to him ; (II.) That the agreement shall be in no way departed from or varied -without the consent of the surety; (III.) That nothing shall be done either by commission or omission on the part of the creditor so as injuriously to afEect the surety or alter his position. (I.) Discharge of the Surety hy Concealment or Misrepresentation. The surety is entitled to full particulars of all the facts on which the contract is founded; thus, a false recital of the state of the account be- tween the principal and creditor contained in a deed giving collateral security, which was read to the surety at the time of his making the con- tract, was held to discharge him: Stone v. Compton, 5 Bing. N. C. 142; see also Smith v. Bk. of Scotland, 1 Dow. 272 ; Bailton v. Matthews, 10 CI. & F. 934; Burke v. Rogerson, L. JJ., 14 L. T. N. S. 780, M. R., 13 lb. 415. Non- disclosure of a material fact may amount to an implied represen- tation that such fact does not exist, so as to discharge the surety : see Lee V. Jones, 17 C. B. N. S. 482, 498, 506; Phillips v. Foxall, L. R. 7 Q. B. 666, 673. And in the case of a continuing guarantee the same rule ap- plies if the concealment has been practised during the progress of the contract; thus where A. guarantees the honesty of a servant, the master, discovering him to be dishonest, and continuing him in his service, with- out the knowledge or assent of A., cannot require A. to make good loss arising from his subsequent dishonesty: see Phillips v. Foxall, sup. ; Burgess v. Eve, 13 Eq. 450. So where the circumstances of the case are such as to create a strong suspicion that the creditor must have been aware, or must have had rea- sonable grounds for suspecting, that the principal obtained the concur- rence of the surety by concealment or misrepresentation, the creditor is not entitled to the assistance of the Court by the appointment of a re- ceiver: Owen V. Roman, 4 H. L. C. 997, 3 Mac. & G. 378. See also Hamilton v. Watson, 12 CI. & F. 109; Pledge v. Buss, Johns. 663. And for cases in which the surety has been relieved from liability on the ground of suppression of material facts or mistake, see Other v. Iveson, 3 Drew. 177; Lake v. Brutton, 18 Beav. 34; Willis v. W., 17 Sim. 218; Cooper V. Joel, 1 D. F. & J. 240. But, in the absence of such knowledge and suspicion, it is not necessary for the creditor to disclose all the circumstances of the relation between himself and the principal to the surety: North British Assur. Co. v. Lloyd, 10 Ex. 523, 1 Jur. N. S. 45; nor is he bound to disclose circumstances affecting the credit of the principal unconnected with the suretyship transaction: Wythes v. Lahouchere, 3 D. & J. 593. And to entitle a surety to be relieved from his contract of suretyship 606 BUEETYSHIP. [PAET IV. false representations miist have been made to him ; or facts which ought to have been communicated, or the precise circumstances of the trans- action, withheld from him purposely : Greenfield v. Edwards, 2 D. J. & S. 582; and with the knowledge of the creditor: Matthews v. Bloxsome, 12 W. R. 795, 33 L. J. Q. B. 209; and see Davies v. London, Ifc. Co. 8 Ch. D. 469. (II.) Discharge of the Surety hy Variation of the Contract. A surety is entitled to remain in the position in which he was when the contract was entered into, and is bound only by the letter of his en- gagement. If that engagement is in any way altered without his consent, even for his benefit, or innocently, he is entitled to say that his con- tract is at an end and to be discharged: Blest v. Brown, 4 D. F. & J. 367, 376, 3 Gifl. 450; Samuell v. Howarth, 3 Mer. 272 ; PolakY. Everett, 1 Q. B. D. 669, 24 W. R. 365, 689; Carter v. White, 25 Ch. D. 666, 670; Gardner v. Walsh, 5 E. & B. 83; and the principle is not confined to cases in which the alteration results from an arrangement between the creditor and the principal debtor: see Re Finch If Jukes, W. N. (77) 211, Form 11, sup. p. 601. Instances of variation by which the surety has been discharged are: — (a.) Where the principal debtor or one of the co-sureties has not, as agreed, executed the bond or deed: Bonser v. Cox, 4 Beav. 379; Evans -v. Bremridge, 8 D. M. & G. 100; and see Barry v. Moroney, 1. R. 8 C. L. 554 (reversing 7 I. R. C. L. 110). Secus, where the principal has executed an instrument on which the surety may sue him : Cooper v. Evans, 4 Eq. 45. (J.) Adding or discharging a co-surety without the privity of the first: Gardner v. Walsh, 5 E. & B. 83; Nicholson v. Revell, 4 A. & E. 675; secus, where a fresh and distinct security, not in lieu of the original security, is taken : Gordon v. Calvert, 4 Russ. 583. (c.) Extending the liability on a bond to be responsible for one person, to responsibility for a second taken into partnership with knowledge of the surety when he signed the bond: Montefiore v. Lloyd, 12 W. R. 88, 15 C. B. N. S. 203. (d.) Substituting for the original agreement another determinable on a different event, so as to make it a new agreement to which the surety has not assented,' see Tayleur v. Wildin, L. R. 3 Ex. 303; N. W. Ry. Co. v. Whinsay, 10 Ex. 77; Holme v. BrunskUl,^! L. J. C. P. 81; unless it is self-evident that the alteration is unsubstantial, and one which cannot possibly prejudice the surety: Holme v. BrunskiU, 3 Q. B. D. (C. A.) 495; 38 L. T. N. S. 838, 103; and see Webster v. Petre, 27 W. R. 662, 4 Ex. D. 127; even where the variation is apparently in favor of the surety: see Calvert v. London Dock Co., 2 Keen, 638; Gen. Steam Nav. Co. v. Roll, 6 C. B. N. S. 550, 584; Bonserv. Cox, 6 Beav. 110; Polak v. Everett, 1 Q. B. D, 669. But an alteration in the original agreement collateral to and not form- ing part of the suretyship contract, and not materially increasing the surety's risk, will not discharge him : Sanderson v. Aston, L. R. 8 Ex, 73. And the contract may be divisible : thus, on a contract for monthly pay- CH. XXI.] SURETYSHIP. 607 ments, giving time for payment of one instalment does not discharge the surety as to the amount due for succeeding months: Croydon Gas Co. v. Dickinson, 2 C. P. D. (C. A.) 46 (reversing 1 C. P. D. 707) ; and see Eyre V. Bartopp, 3 Madd. 227. So also a variation as to one of several separate and distinct matters comprised in the contract, but not materially altering the nature of the engagement for which the sui-eties have become responsible, will not re- lease their liability as to the rest: Skillett v. Fletcher, L. R. 2 C. P. 469, 1 lb. 636; Harrison v. Seymour, L. R. 1 C. P. 518. And see and compare Pyhus v. GiM>, 6 E. & B. 902; Bonar v. Macdonald, 3 H. L. C. 226; Mailing Union v. Graham, L. R. 5 C. P. 201 (cases in which the nature of the office and duties, for performance of which the sureties became responsible, were so altered that they were held no longer liable on their bond) ; iJe Finch §• Jukes, W. N. (77) 211, Form 11, sup. p. 601, where the surety on a bond given by a railway company was held to have been discharged by the passing of a subsequent act author- izing deviations, the abandonment of part of the undertaking, and an in- crease of capital. If the variation is made with the knowledge and concurrence of the sureties (e. g. where they were the solicitors of the principal and trans- acted all the business of the alteration) they are not released: Woodcock V. 0. W. §• W. By. Co., 1 Drew. 521 ; and see Hollier v. Eyre, 9 CI. & F. 1,52. (III.) Discharge of the Surety hy Acts of the Creditor affecting or altering his Position. (a.) Giving time, by positive contract, to the principal debtor without the consent of the surety, discharges the surety, even though he is in no way damnified: see Overend, Gumey, §• Co. v. Oriental Fin. Corp., L. R. 7 H. L. 848, 7 Ch. 142, Davies v. Stainhank, 6 D. M. & G. 679, 696; Bailey v. Edwards, 4 B. & S. 761; Samuell v. Howarth, 3 Mer. 272; Boult- iee V. Stubbs, 18 Ves. 20; on the ground that "if the creditor binds him- self not to sue the principal debtor, for however short a time, he interferes with the surety's theoretical right to sue in his name during such period: " Svnre v. Redman, 1 Q. B. D. 536, 541 ; and see Bees v. Berrington, 2 Lead. Cas. Eq. 992, 997. The rule applies where the creditor has knowledge that the parties, though contracting with him as principal debtors, were inter se principal and surety: Pooley v. Harradine, 7 E. & B. 431; Greenough v. McClelland, 2 E. & E. 424; and where with his knowledge their position has been subsequently changed from that of principal debtors both primarily liable to that of principal and surety: Maingay v. Lewis, I. R. 5 C. L. 229. Mere delay by the creditor in suing the principal, or the passive act of abstaining from suing, is not giving time so as to discharge the surety: Price V. Kirkham, 3 H. & C. 437; Eyre v. Everett, 2 Russ. 381; 1 Story Eq. Jur. § 326. So also if the time given is an apparent but not a real delay: Hulme v. Coles, 2 Sim. 12; or if the time be given with the assent or subsequent 608 SUEETTSHIP. [PAET IV. approval of the surety: Tyson v. Cox, T. & R. 395; and the liability of the surety may be revived by his engagement to pay the debt after time has been given: Mayhem v. Crickett, 2 Swa. 185, 192. And on giving time to the principal debtor, as distinguished from an absolute release or obliteration of the debt, the creditor may reserve all his rights against the surety, see Owen v. Homan, 4 H. L. C. 997, 1037 ! Webb V. Hewitt, 3 K. & J. 438. If the relation of surety has been changed to that of principal, subse- quent dealings between the creditor and the original principal will not operate as a discharge of the original surety: Reade v. Lowndes, 23 Beav. 361 (affirmed 30 L. T. 110); Defries v. Smith, 10 W. R. 189; nor will subsequent dealings with the principal, after the liability of the surety has been established by decree in a suit by the creditor to administer the surety's estate: Jenkins v. Robertson, 2 Drew. 351. The established rule that giving time to the principal discharges the surety has been questioned in recent cases: see Swire v. Redman, 1 Q. B. D. p. 542; Greenough v. McClelland, 2 B. & E. 424, 434; and in order to discharge the surety it has been held that the act of the creditor must have been against the faith of the contract: see Petty y. Cooke, L. R. 7 Q. B. 790; or that the position of the surety must have been prejudiced or altered: see Bingham v. Corbitt, 34 L. J. Q. B. 37. (6.) A release of the principal discharges the surety unless given with his assent : Exp. Harvey, 4 D. M. & G. 881; Cragoe v. Jones, L. R. 8 Ex. 81 ; or unless there be a stipulation to the contrary in the bond of guar- anty: Manchester Union Bk. v. Beech, 34 L. J. Ex. 133L; 3 H. & C. 672; Cowper V. Smith, 4 M. & W. 519. If the deed containing the release and reserving all rights and remedies against the surety amounts only to a covenant not to sue the principal, the debt is not extinguished and the surety is not released, as he may pay the creditor and sue the principal for the amount: Green v. Wynn, 4 Ch. 204, 7 Eq. 28; Bateson v. Gosling, L. R. 7 C. P. 9; Price v. Barker, 4 E. & B. 760; and under such a deed the principal or co-surety remains liable to indemnity or contribution to the surety against whom the right is reserved: North v. Wakejield, 13 Q. B. 536; Hall v. Hutchons, 3 My. & K. 426; and see Close v. C, 4 D. M. & G. 176, 185. But if the debt is actually gone, by payment or release, any reservation of rights against the surety is a nullity: see Webb v. Hewitt, 3 K. & J. 438, 442; Kearsley v. Cole, 16 M. & W. 128. If the principal debtor is discharged by operation of law, e. jr.- by reso- lution of the creditors for liquidation or composition, his co-debtor or surety remains liable: Re Jacobs, 10 Ch. 211; Ellis v. Wilmot, L. R. 10 Ex. 10; Megrath v. Gray, L. R. 9 C. P. 216 (disapproving Wilson v. Lloyd, 16 Eq. 60); and see Cragoe v. Jones, L. R. 8 Ex. 81. (c.) Negligence on the part of the creditor, in losing or not making proper use of securities, will also discharge the svnetj pro tanto, as: — by not giving notice of a mortgage of the debtor's life interest to trustees of the settlement: Strange v. Fooks, 4 GifE. 408, 11 W. R. 983; — by relinquishing a remedy against the principal debtor (e. g. Ijy withdrawing execution), unless the surety renews his liability: Mayheio V. Crickett, 2 Swa. 185; CH. XXI.] SUEETTHHIP. 609 — by neglect to insure works according to contract: Watts v. Shutlle- toorth, 7 H. & N. 353, 6 lb. 235; — by omission to register a bill of sale given as a security, and to enter into possession on default in payment of interest, thereby enabling the trustee in bankruptcy to seize and sell the property: Wulffv. Jay, L. R. 7Q. B. 756; — by omission to register an assignment of a ship: Capel v. Butler, 2 S. & S. 457; and see Slraton v. Rastall, 2 T. R. 866; — by omission to comply with statutory formalities: see Watson v. All- cock, 4 D. M. & G. 242, 1 Sm. & G. 319; — by neglecting to realize a collateral security which would have pro- duced enough to pay the debt: Mutual Loan Assoc, v. Sudlow, 5 C. B. N. S. 449; — by not presenting; a bill of exchange for payment at maturity: see Latham v. Chartered Bk. of India, 17 Eq. 205; — by taking notes of a bank shortly before it stopped payment, and drafts on their London agents, when cash might have been obtained: Lichfield Union v. Greene, 1 U. & N. 884. But if the security proves worthless, and the loss has not been caused by any act of the creditor, the surety is not discharged: Hardwick v. Wright, 35 Beav. 133. So also a surrender of a policy effected by the bankrupt debtor as a security for the debt did not release the surety: Coates v. C, 33 Beav. 249. The rule being that the surety is entitled to the benefit of every secu- rity held by the creditor against the principal debtor, whether given at the time of the contract or afterwards, and whether with the knowledge of the surety or not: see Pledge v. Buss, Johns. 663; Pearl v. Deacon, 24 Beav. 186, 1 D. & J. 461; Goddard v. Whyte, 2 Giff. 449, 1 Lead. Cas. Eq. 115, 2 lb. 1026; any dealing by the creditor with a security (though acquired after the contract of suretyship), so that he cannot give it up to the surety in the same condition in which it was acquired, discharges the surety: Campbell v. Rothwell, 38 L. T. N. S. 33 (not following Newton v. Charlton, 10 Hare, 646, 2 Drew. 333) ; and see 2 Lead. Cas. Eq. 1026. As against the bankrupt principal's estate the surety is entitled to marshal the securities: see Heyman v. Dubois, 13 Eq. 158. But he is not entitled on paying that part of the debt for which he is surety, to a security for the other part of the debt given subsequently to the contract: Wade v. Coope, 2 Sim. 155; South v. Bloxam, 2 H. & M. 4.57. And generally as to the discharge of the surety by acts on the part of the creditor, see Rees v. Berringlon, 2 Lead. Cas. Eq. 992, 997; Addi- son on Contracts, 864-809 ; Pollock on Contracts, 226-228. 89 610 PARTNERSHIP. [PART IV. CHAPTER XXn. PARTNERSHIP. Section I. — Enforcing or setting aside Agreement, 1. Enforcing Partnership Agreement, with Variations. " Declaee that the agreement for a copartnership in the plead- ings mentioned, dated &c., is a binding agreement between the par- ties thereto, and ought to be specifically performed and carried into execution ; and decree the same accordingly ; And Let an inquiry be made whether any, and what, variations have been made in the said agreement, by and with the assent of the several parties there- to, since the date thereof; And Let a proper deed of copartnership between the said parties, in pursuance of the said agreement, be settled by the Judge in case the parties differ ; And in settling such deed regard is to be had to any variations which maj' appear to have been made in the said agreement on the result of the inquiry hereinbefore directed ; And Let such deed of copartnership, when agreed upon between the said pa,rties, or when so settled, be ex- ecuted by the several parties thereto." — Directions as to costs. — Injunction continued. — England v. Curling, M. B., 8 Beav. 140. For decree enforcing a right of pre-emption of a partner's share under the partnership articles in favor of two continuing partners, see Homfray V. FolhergiU, V.-C. S., 1 Eq. 577. For decree declaring determination of partnership by effluxion of time, and that the Deft was bound to purchase the share of the Pit therein, and directing the value of the share to be ascertained upon the footing of the articles of partnership, and usual accounts, see Dinham, v. Bradford, L. C, 5 Ch. 519. For injunction restraining breach of partnership articles by employing a clerk without the Pit's consent, see Watney v. Trist, V.-C. H., 45 L. J. Ch. 412. CH. XXII. S. I.] ENFORCING OR SETTING ASIDE AGREEMENT. 611 2. Declaration of Title to share as Partner in Partnership Assets and Profits. "Declare that under the terms of the letter of the 8th of June, 1869, the Eespondent S. became entitled as a partner with the Ap- pellant to One eighth share of the O. music-hall and tavern in the pleadings mentioned, and of the profits thereof; And that the part- nership between them was dissolved at and from the &c. {date of filing answer — now, delivery of statement of defence), and that the sum of £250 mentioned in the said letter is to be taken as capital brought by the said Respondent S. into the partnership." — Account of receipts the Pit to the Deft ; And Let the Pit within days after service of this order {or on or before the day of ] , pay to the Deft the deposit of £ paid by the Deft into the hands of the Pit's solicitor as a deposit and in part payment of the purchase-money of £ for the hereditaments comprised in the agreement of the day of in the pleadings mentioned, to- gether with interest thereon at the rate of £ per cent per an- num from the daly of until payment. And Declare that the Deft is entitled to a lien on such estate or interest as the Pit has in the said hereditaments for the amount of the said costs and the said sum of {deposit) , and interest thereon as aforesaid. — Liberty to the Deft to apply in Chambers to give effect to the said declaration — And (thereupon) dismiss the Pit's bill (action) out of this Court. — Turner v. Marriott, V.-C. M., 3 Eq. 744. For decree in vendor's suit against a married woman and the trustee of her separate estate declaring the separate estate chargeable with payment of the purchase-money and interest, and charging the same accordingly, and directing accounts of what was due to the Pit, and inquiries of what the separate properly consisted, and in whom it was vested, and as to rates and taxes on the house comprised in the agreement, and giving liberty to the trustee to retain his costs out of the separate property in his hands, see Picard v. Hine, Form 3, sup, p. 661. For decree in vendor's suit against a railway company, the Defts having undertaken to remove a road bridge and adjoining works, directing them to do so, and to erect a new bridge in accordance with the agreements, and to pay the purchase-money admitted to be due with interest, and there- upon the Pit to convey, Defts to pay the costs of the suit and of the ap- peal, see Raphael v. Thames Valley Ry. Co., L. C, 2 Ch. 147. For order on motion that upon the Pit giving to the Deft twenty-four hours notice L. and his clerks should be at liberty to enter on the prem- ises called the Y. &. Tavern for two working days, between the hours of ten and six, for the purpose of inspecting and making an inventory of the furniture, fixtures, and other effects to be valued by him pursuant to the agreement in the pleadings mentioned, for the sale of the tavern as a going concern, see Smith v. Peters, M. B,., 20 Eq. 511. NOTES, INTEREST. Where there is no stipulation as to interest the general rule of the Court is that the purchaser,, when he completes his contract after the time stipu- 43 674 SPECIFIC PEEPORMANCE. [PAET IT. lated, shall be considered in possession as from that time, and shall pay in- terest at £4 per cent, taking the rents and profits : Esdaile v. Stephenson, 1 S. & S. 123 ; Paton v. Mogers, 6 Madd. 257; or where there are no rents and profits to be received : Catling v. Great Northern By. Co., 21 L. T. N. S. 17; unless the vendor has improperly delayed execution so that he would be profiting by his own wrong: Paion v. Rogers, 6 Madd. 257. A purchaser taking possession must pay interest on the unpaid pur- chase-money: Fludyerv. Cocker, 12 Ves. 25; even though the purchase- money was payable on title being made, which could not be done for several years: A. G. v. Christ Church, 13 Sim. 214. And so where a railway company takes possession before the price is ascertained, interest runs from the time of taking possession: Firth v. Midland By. Co., 20 Eq. 100; Bhys v. Dare Valley By. Co., 19 Eq. 193. And generally from the time the purchaser in aocordance^jsdthjhe^ agreement takes, or is to take possession, he is deemedtlje^eiwner, and is entitled to the rents ; aindtom the same period th^efier is deemed owner of the purehafie-money, and*Wg*ftrt«ies!jJjs}eiigs to him as part of his property: Birch v. Joy, 3 H. L. C. 566, 591; and see PhiUips v. Sylvester, 8 Ch. 173, 176; Dart V. & P. 627 et seq. In the absence of any stipulation making it payable in any event, in- terest will cease to run where the delay is not caused by the fault of the purchaser, and he has given notice to the vendor that the purchase-money has been appropriated and is lying idle : Kershaw v. K., 9 Eq. 56 ; Dyson V. HtmJby, 4 D. & S. 81; Powell v. Martyr, 8 Ves. 146; Sugden V. & P. 628. But where interest ceased upon such a notice, this was held not to affect the liability of the vendors to account for rents and profits: Regent's Canal Co. v. Ware, 23 Beav. 575, 587. Where it is stipulated that " if from any cause whatever " the purchase shall not be completed by a day named, the purchaser shall pay interest, the mere existence of difficulties as to the title, or neglect to furnish the abstract by the day named for that purpose, is insufficient (notwithstand- ing the decision of Lord Cottenham in De Visme v. De V., 1 Mac. & 6; 336), to exempt him from the obligation: Sherwin v. Shakspear, 5 D. M. & G. 517 ; unkss there be some fraud, wilful delay, or serious misconduct on the part of the vendor: Williams v. Glenton, 1 Ch. 200 ; Rowley v. Adams, 12 Beav. 476; Vickers v. Hand, 26 Beav. 530; Bannerman v, Clarke, 3 Drew. 632; Lord Palmerston v. Turner, 33 Beav. 524; and for cases in which such a condition was held not binding, see Wallis v. Sarel, 5 D. & S. 429; Cowper v. Bakewell, 13 Beav. 421. Where the agreement provided for interest increasing in proportion to the time during which the purchase-money should remain unpaid, it was held enforceable, and not a penal stipulation to be relieved against: Her- bert V. Salisbury §• Veovil Ry. Co., 2 Eq. 221. The right to principal or interest does not accrue within the meaning of the Statutes of Limitation until the title is made, though interest may run previously: Toft v. Stevenson, 5 D. M. & G. 735. The purchaser may deduct income tax on payment of interest to the vendor: Bebb v. Bunny, 1 K. ,& J. 216; secus, on payment into Court: Duval V. Mount, 35 L, 0. 260 j and see Crane w, Kilpin, 6 Bq. 334. CH. XXni. S. II.] TITLE ACCEPTED, ESTABLISHED, ETC. 675 Where payments on account of purchase^money have been made in excess of interest, rests will be directed, but not otherwise: Griffith y. Helton, 1 S. & S. 271. RENTS — OUTGOINGS — OCCUPATION RENT WILFUL DEFAULT. After the time for completion the vendor is accountable for rents and profits, but usually only for those actually received; Foi-m 1, p. 668; Howell Y. H., 2 My. & C.r. 486; unless he allows the rents to fall into arrear, when he will be held accountable for the arrears: Acland v. Gaisford, 2 Madd. 28; Wilson v. Clapham, IJ. & W. 36. A vendor will only be made liable for wilful default on a special case being made for the purpose at the hearing: Sherwin. v. Shakspear, 5 D. M. & G. 517, 532; Phillips y'. Sylvester, 8 Ch. 173, Form 8, sup. p. 671. Where a vendor resisted specific performance, having received a large portion of the purchase-money, and continued in possession for a number of years, he was charged with interest on the rents and profits received: Burton v. Todd, 1 Sw. 255. Occupation rent is payable in respect of occupation by the vendor con- tinued after the time for completion: Leggott v. Metn. By. Co., 5 Ch. 716; and in the case of leaseholds : Dyer v. Hargrave, 10 Ves. 505 ; but not in cases where the purchaser ought to have taken possession : Dakin v. Cope, 2 Euss. 170; nor where the purchaser making default in payment the vendor continues to carry on his business in the premises: Leggott v. Meln. Ry. Co., 5 Ch. 716. Income tax may be deducted from oecupation rent as a just allowance, not to be specified: Sherwin v. Shakspear, 5 D. M. & G. 517, 532; and as to occupation rent generally, see Markey v. Cooke, I. R. 10 C. L. 149. In general, the vendor pays all outgoings down to the time when the purchaser could prudently take possession, i. e. until a good title is first shown: Carrodus v. Sharp, 20 Beav. 56 ; and " outgoings " stipulated on a sale of leaseholds to be paid by a vendor up to a day named included apportioned rent to that time: Lawes v. Gibson, 1 Eq. 185. Upon the sale of a manor, fines received up to the time fixed for com- pletion pass as rents and profits to the vendor: Cuddon v. Tite, 1 GifE. 395. Upon the sale of copyholds, a fine payable on the admittance of the heir after the death of the vendor (a trustee for sale) before completion, was borne by the trust estate: Paramore v. Greenglade, 1 S. & G. 541. DETERIORATION. Where a vendor insists on retaining possession after the time fixed fop eompletion he will be entitled to all prope? expenditure for maintaining the property in proper condition, and if be fails to do so is liable for dete^ rioration and dilapidation : Phillips v. Sylvester, 8 Ch. 173, Form 8, p. 671 ; Foster V. Deacon, 3 Madd. ,394, Part V. & P. 246, Sugden V, & P, 644 ; and for the manner of assessing the amount or deterioration where the ven- dor has continued to work a coal mine for his own benefit, see Brown v. 676 SPECIFIC PEEPOEMANCE. [PAET IV. Dibhs, 25 W. E. 776; Jegonv. Vioian, 6 Ch. 742; Llynvi Coal Co. v. Brog- den, 11 Eq. 188. If the existing tenancies will expire before the completion of the pur- chase, it is the proper course for the vendor to give notice to the purchaser and consult his wishes: Earl of Bgmont v. Smith, 6 Ch. D. 469. A purchaser is not entitled to an allowance for deterioration after the time when he might have taken possession : Burke v. Lord Rokehy, 2 Sw. 222; Minchin v. Nance, 4 Beav. 332 ; nor when he has caused it himself: Harford v. Furrier, 1 Madd. 532. Where between the date of the agreement and the conveyance the prop- erty is destroyed by fire, the loss falls on the purchaser : Paine v. Meller, 6 Ves. 349 ; and in the absence of any provision in the agreement he was held not entitled to the benefit of an existing insurance : Poole v. Adams, 12 W. R. 683; and see Reynard v. Arnold, 10 Ch. 386. A purchaser may compel discovery from a vendor of the persons to whom property capable of deterioration has been let, and the nature and extent of their interest : Dixon v. Fraser, 2 Eq. 497. Where a purchaser had paid his purchase-money into Court he was allowed an ascertained sum for deterioration with interest at £4 per cent out of the money in Court, on the ground that to the extent of the ascer- tained amount he had paid in his own money : Ferguson v. Tadman, 1 Sim. 530. PAYMENT — COlfVETANCE. Where a purchaser in possession causes deterioration by improper acta of ownership he will be ordered to pay the purchase-money into Court without any option of giving up possession : Dixon v. Astley, 1 Mer. 133, 19 Ves. 164 ; and so where deterioration has taken place which is due to his acts, though without his fault : Pope v. Great Eastern Ry. Co., 3 Eq. 171; DartV. & P. 1090. In the absence of deterioration a purchaser in possession will be allowed the option of paying the purchase-money into Court or giving up posses- sion: Clarke v. Wilson, 15 Ves. 317; and generally a purchaser cannot retain both possession and the purchase-money : Wickham v. Evered, 4 Madd. 53; Younge v. Duncombe, Younge, 275; 7'indal v. Cobham, 2 My. & K. 385 ; unless he is in possession under the agreement : Pryse v. Cam- brian Ry. Co., 2 Ch. 444; Dixon v. Astley, 1 Mer. 133; Cooper v. L. C. D. Ry. Co., 14 W. K. 985; or has entered under circumstances amounting to a purchase of the right of possession: Capps v. Nondch §• Spalding Ry. Co., 2 N. R. 51. The purchaser may insist on the vendor himself receiving the purchase- money, or there being written authority to his solicitor to receive it; and may under special circumstances insist upon the execution of the convey- ance and receipt of the purchase-money by the vendor in the presence of himself and his agent: Viney v. Chaplin, 2 D. & J. 468, 4 Drew. 237; but the mere fact that the vendor has been a lunatic is not enough to support such a right: Essex v. Daniel, L. R. 10 C. P. 538. The payment of the purchase-money and execution of the conveyance are simultaneous acts and should be done interchangeably: Marg. Anspaeh V. Noel, 1 Madd. 316. CH. XXIII. S. II.J TITLE ACCEPTED, ESTABLISHED, ETC. 677 A vendor cannot object, on receiving the whole purchase-money and the additional costs, to convey the sold property in parcels at the same time: whether he can object to convey the parcels at different times, qumre : Earl of Egmont v. Smitk, 6 Ch. D. 469. On a sale by a mortgagor free from incumbrances the purchaser is en- titled to a separate conveyance of the equity of redemption to keep the mortgage on foot : Cooper v. Cartwright, Johns. 679. A vendor is not prevented by the mere fact of notice of a sub-purchase from conveying as the original pui-chaser appoints: Crabtree v. Poole, 12 Eq. 13; and as to the rights of a sub-purchaser or a stranger to the agree- ment, see Fenvnck v. Bulman, 9 Eq. 165; per Lord Cairns in Aberaman Ironworks v. Wickens, 4 Ch. 101, 111; Tasker v. Small, 3 My. & Cr. 63. The conveyance should be dated from the time when the title is first shown: Townsend v. Champernowne, 3 Y. & C. 505. The direction to convey includes the vendor and all other necessary parties; so that it is immaterial whether they are expressly mentioned or not: Minton v. Kirwood, 3 Ch. 614. As to the concurrence of the vendor's heir-at-law where the legal estate was akeady vested in the purchaser, see Hoddel v. Pugli, 33 Beav. 489 ; or where the heir has no legal or beneficial interest, see Duly v. Nalder, 14 W. R. 45; or no beneficial interest, see Minton v. Kirwood, 6 Ch. 614. As to the concurrence of rival claimants of the reversion on a sale of leaseholds, see Pegler v. White, 33 Beav. 403; and as to directing the Defts to take proceedings to obtain or compel the consent of the lessor to a necessary apportionment of rent on a sale under the L. C. C. Act, see Williams v. East London Ry. Co., 18 W. E. 159 ; and as to such consent. Slipper V. Tottenham, Sfc. Ry. Co. , 4 Eq. 112. As to the concurrence of equitable incumbrancers holding their secu- rity as joint tenants, see Matson v. Dennis, 4 D. J. & S. 345. Where trustees are empowered to sell by the direction of the tenant for life, he must covenant for title. Earl Pouleil v. Hood, 5 Eq. 115; but in a sale by the Coxirt, where the trustees have power to give a discharge, the beneficiaries need not covenant for title: Cottrell v. C, 2 Eq. 330; and as to trustees' covenants, see Worley v. Frampton, 5 Hare, 560. Where land is sold for an annuity to be charged on the land, the vendor is entitled to the purchaser'Si covenant to pay: Bower v. Cooper, 2 Hare, 408. Where the agreement provides for the concurrence of certain parties, the vendor cannot decline to procure it on the ground that they are not necessary or proper parties: Benson v. Lamb, 9 Beav. 502; and where there is a stipulation to convey the land subject to all rents, incidents of tenure, and easements, if any, the purchaser cannot resist the insertion of the words in the conveyance : Gale v. Squier, 5 Ch. D. 625, 4 Ch. D. 229. As to the effect of general words in the conveyance^ see Thompson v. Waterlow, 6 Eq. 36 ; and as to the meaning of the words " growing crops," see Webster v. Donaldson, 13 W. K. 515. The purchaser of a leasehold interest is bound to indemnify the vendor against the rents reserved by the lease and the covenants contained in it; and this applies to sales under the L. C. C. Act: Harding v. Metn. Ry. Co., 7 Ch. 154, Form 9, sup. pp. 671, 672. 678 SPECIFIC PERFORMANCE. [PAET IV. A covenant to this effect will be held to be imfilied if not inserted in the assignment: Moule v. Odrrettf L. R. 7 Ex. 101. Where the direction to settle the conveyance was omitted in the decree it was supplied on petition: Trevelyan v. Charter, 9 Beav. 140; and such an order would now be obtained on motion. A purchaser cannot be restrained by injunction from carrying 6ut a second purchase the effect of which will be to render him incapable of completing the original purchase: Syers v* Brighton Brewery Co., Wright V. Some Co.,13W. R. 220. BfiLIVEKT OF DEEDS. The ptirdhaser has a right (in the absence of express stipulation) to call upon the vendor to deliver up all deeds and documents of title in his possession: M'Namara v. Williams, 6 Ves. 144; and the Court will enforce special conditions of sale relating to custody and delivery of them: Sale V. Larnbert, 18 Eq. 1, Form 7, sup. p. 670. Where the documents cannot be delivered up, the purchaser has a right to a covenant to the production of all documents mentioned in the abstract necessary to make a good title, except copies of Court roll or enrolled indentures of bargain and sale which are not in his possession: Cooper V. Emery, 1 Ph. 388; and see Dart V- h P. 142; Sugden V. & P. 448. The question of what deeds are material will be decided according to the particular circumstances of each case: Offen v. Harman, 8 W. R. 129. As to what is sufficient evidence of the execution and contents of lost deeds as against an unwilling purchaser, see Moulton Vi Edmonds, 1 D. F. & J. 246; Sugden V. & P- 421, 436. DISMISSAL. — DEPOSIT. Where a vendor's suit is dismissed after a certificate against the title he will be ordered to return the deposit with interest at £4 per cent: lord Anson v. Hodges, 5 Sim. 227; GraHes v. Wright, 2 Dr. & W. 79; and so notwithstanding a condition for repayment of the deposit without interest if there has been, long delay: M'Culloeh v. Greqory, 1 K. & J. 286. And upon payment of any portion of the purchslse-money the purchaser acquires a corresponding interest in the estate : Rose V. Watson, 10 H. L. C- 672; so that where the agreement fails for want of title, or otherwise without his fault, the purchaser will be entitled to a lien upon the estate for his deposit and interest: WyihesY. Lee^ZT)ve^.Z9Q; and costs: Turner V. Marriott, 8 Eq. 744, Form 12, p. 673, following MiddUton v. Magnap, 2 H. & M. 233; and see Aberaman Ironworks v. Wickens, 4 Ch. 101. But where no binding agreement was established, it has been held that the right to recover the deposit is a right at law: Salnshury v. Jones, 5 My. & Cr. 1; Kendall V. BeckeU, 2 R. & M. 88; Sede v. Oakeg,2 D. J. 6 S. 518. And in all cases the equitable jurisdiction to order a return of the deposit is discretionary: SouthcotiA v, Bp. of Exeter, 6 Hare, 225. CH. XXIII. S. II.] TITLE ACCEPTED, ESTABLISHED, ETC. 679 Where a deposit was paid into Court, and the purchaaer became bank- rupt and his assignees disclaimed the agi-eement, the deposit was paid out to the vendor who had paid it in, and proceedings were stayed without prejudice to any proceedings in bankruptcy: Kell v. Nokes, 14 W. R. 908; and generally where the purchaser fails to carry out the agreement, he has no right to a return of the deposit, whether there be an express stipulation for its forfeiture or not: Exp. Barrell, 10 Ch. 512; Depree v. Bedborough, 4 Giff. 479; and see Essex v. Daniell, L. R. 10 C. P. 538. Where the deposit remains in the hands of the auctioneers, the prac- tice is to apply to them to pay it into Court, and make them Defts if they refuse ; but if it be a large sum, they may properly be made Defts in the first instance: Earl of Egmont v. Smith, 6 Ch. D. 469. Where the certificate is against the title, the suit will be dismissed on further consideration:. Turner v. Marriott, 3 Eq. 744; Johnson v. Smiley, 22 L. J. Ch. 826; Bryant v. Busk, 4 Euss. 1. COSTS. Where the question of title is not the chief matter in dispute between the parties, the costs wiU, as a rule, follow the result: Croome v. Lediard, 2 My. & K. 293; Abbott v. Sworder, 4 D. & S. 448, 459; Upperton v. Nick- olson, 6 Ch. 436 ; Nene Valley Commrs. v. Dunkley, 4 Ch. D. 1 ; and see Monro v. Taylor, 3 Mac. & G. 713, 8 Hare, 51 ; Lyle v. Earl of Yarborough, Johns. 70. Where a purchaser's objections to the title have occasioned the litigation, and are overruled, he will be liable for the costs: per James, L. J., in Phillipson v. Gibbon, 6 Ch. 434; Forster v. Abraha?n, 17 Eq. 351; Peter v. MchoUs, 11 Eq. 391; Long v. Collier, 4 Russ. 269; Scoones v. Morrell, 1 Beav. 251; at least if the objections are futile: Morris v. Debenham, 2 Ch. D. 547 ; but not if they involve points of nicety or novelty: Cruik- shank v. Duffin, 13 Eq. 555; Mullings v. Trinder, 10 Eq. 457; and the pur- chaser concurs in taking the opinion of the Court (though clearly against him), in the least expensive way: Radford v. Willis, 7 Ch. 7. And where the purchaser has by his conduct caused the litigation he will be liable for the costs, notwithstanding any decision in his favor on particular points in dispute: Sherwin v. Shakspear, 17 Beav. 267, 277, 5 D. M. & G. 517 ; Peers v. Sneyd, 17 Beav. 151. In a vendor's suit the ordinary rule (subject to the foregoing excep- tions) is that costs are given against the Pit up to the time when he has first shown a good title: per James, L. J., in Phillipson v. Gibbon, 6 Ch. 434; and this rule will not be lightly departed from: Wilkinson v. Hartley, 15 Beav. 183; but will not be always followed where the objections might have been removed, if made before the commencement of the suit ; per Knight Bruce, L. J., in Freer v. Hesse, 4 D. M. & G. 505. And where fatal objections which might have been known to both parties were taken late in the course of the suit, no costs were given, except such as had been unnecessarily caused by the vendor: Phillipson v. Gibbon, 6 Ch. 428; and so where a fatal objection was taken "very late, costs were refused to the purchaser: Upperton v. Nickolson, 6 Ch. 434. In a purchaser's suit after a certificate against the title, the suit was 680 SPECIFIC PEEPORMANCE. [PAET IV. dismissed without costs: Maldon v. Tyson, 9 Beav. 347; secus, where there had heeu long delay and little hope of completing the title : Eraser v. Wood, 8 Beav. 339; but see Middleton v. Magnay, 2 H. & M. 233. Where the death of the vendor, intestate before completion, renders a suit for specific performance necessary, the costs of the purchaser and of the Jegal personal representative of the vendor must be borne by them respectively, but the costs of an infant heir-at-law have been held to be payable out of the purohase-money : Barker v. Venables, 13 W. E. 803; Scott V. S., 11 W. R. 768 ; S. C. 13 W. R. 803, n. ; Purser v. Darby, 4 K. & J. 41; Hodson v. Carter, 1 N. R. 179; Hanson -v. Lake, 2 Y. & C. C. 328 (the, decision in Midland, tj-c. Ry. Co. v. Westcomb, 11 Sim. 57, not being followed) ; and see Longinotto v. Morss, 26 L. T. N. S. 828. But where the vendor dies, leaving a will which makes the suit necessary, the whole of the costs thus occasioned will fall on his estate: Purser -v. Darby, 4 K. & J. 41; Wortham v. Lord Dacre, 2 K. & J. 437; Sanderson V. Chadvnck, 2 N. R. 414 ; notwithstanding the decisions in Bannerman V. Clarke, 3 Drew. 632, Hinder v. Streeten, 10 Hare, 18, and Hall v. Bushill, 14 W. R. 495; except in the case of lauds taken under the L. C. C. Act, where no costs were given: L. §• S. W. R. Co. v. Bridger, 4 N. R. 261. Where a Deft claimed under an alleged prior contract, a decree was made with costs in favor of the Pit, but it was ordered that as between the Defts the costs should be wholly borne by the party making the claim; Wilson V. Thomson, 23 W. R. 744. Where, after a suit for specific performance, the Pit, being vendor, opposed various bills in Parliament to protect his rights, and then an arrangement was made to pay principal, interest, and costs, it was held that the parliamentary costs were included : Cooper \.L.C.^D. Ry. Co. , 17 L. T. N. S. 283. Costs were ordered to be paid by the Pit where relief was obtained before the day on which the suit was commenced, though the Pit's plead.; ing (bill) had been prepared: CJiester v. Metn. Ry. Co., 13 W. E. 333. And as to costs generally, see More. & Davey, p. 177 et sea., Dan. Ch, Pr. 1261 et seq. m. — COMPENSATION OB ABATEMENT. 1. Inquiry as to Title, and if Title not shown to Part, Inquiry if such Part be material. Let the following &c. : 1. An inqnirywhether the Pit can make to the Deft a good title to the estate in question agreed to be pur- chased by him, or to any and what part thereof; 2. And in case it shall appear that the Pit can make a good title to part of the said estate, then an inquiry whether such part, if any, of the said estate as to which the Pit cannot make a good title, be material to the en- joyment of the remainder ; and if not, what deductiou ought to be CH. XXIII. S. II.] COMPENSATION OR ABATEMENT. 681 made from the purchase-money in respect thereof. — Evance v. Hogg, M. R., 25 Nov. 1805. 2. Specific Performance, with Abatement for Deficient Interest. "Deolake that the Pit is entitled &c. [Form 2, p. 644], to the extent of all the interest of S. in the pleadings named in the prop- erty comprised in the said agreement, being the said S.'s estate therein for the Ufe of W. in the pleadings named, and such estate by the curtesy as he may become entitled to therein, with a propor- tionate abatement of the purchase-money in respect of the interest of the wife of the said S. therein, and decree &c. ; And Let an in- quiry be made what is the amount to be paid by the Pit for the pur- chase-money of the said property comprised in the said agreement in respect of the interest of the said S. having regard to the decla- ration aforesaid ; " — Account of rents and profits against Deft, and directions for deduction of the amount and payment of the balance by the Pit, and for conveyance by the Deft free from incumbrances. — Barnes v. Wood, V.-C. J., 8 Eq. 424.. 3. Specific Performance, with Abatement for Deficient Parcels, Declake Pit entitled to specific performance &c., "and to an abatement from the residue of the purchase-money and interest, but to the amount only of what would be the value of the deficiency of the soil in the pleadings mentioned covered with wood, after deducting the value of the wood thereon, and decree the same accordingly ; And Let such abatement be settled by the Judge." — Dh-eetions for computation of interest and conveyance &c. — WU V. Buckley, M. E., 17 Ves. 394. 4. Specific Performance, with Abatement for Defect of Title^ and Misrepresentation as to Working Expenses of Colliery ^ Reverse decree ; — And Let the Defts specifically perform the agreement, dated the day of in the pleadings mentioned, but subject to the following inquiries as to whether or not any abatement should be allowed in the purchase-money in the said agreement mentioned ; And Let the following &c. : 1. An inquiry whether a good title pursuant to the said agreement can be made to the A. Colliery in the pleadings mentioned, and if not whether any and what abatement ought to be allowed in the purchase-money in respect of any defect in such title ; 2. An inquiry whether the amount in value of the stores used by the Pits and their partner the late T. P. for the thirteen lunar months of the year , commenc- 682 SPECIFIC PERFORMANCE. [PART IV. ing and terminating as in the pleadings mentioned, at the several steam coal collieries Sold by them to the Defts, in working and placing in wagons the coals raised at the same collieries during the same period exceeded, to any and what amount, the value set forth in the cost book for that year ; and if so what allowance ought to be made to the Defts by way of abatement from the purchase- money in respect of the increased cost of working and placing in wagons the coal worked in the said collieries ; And Let such sum or sums, if anj', as shall be allowed to the said Defts on the said inquiries be deducted from the purchase-money agreed to be paid by them for the purchase of the said colUeries ; And Let, 3, an ac- count be taken of what, after such deductions, if any, is due to the Pits in respect of the balance of the said purchase-money, with interest at the rate of £5 per cent per annum from the respective times when the same became payable under the agreement dated &o., regard being had to the payments already made, his Lordship reserving until further consideration (the question) whether interest should be calculated at £10 per cent. — Adjourn &c. — Powell v. Mliott,!.. C, 10 Ch.i2e.- For decree declaring the Pit entitled to specific performance so far as regarded the reversion and remainder in fee-simple expectant on the death of C. in the premises, and to a conveyance of such reversion or remainder with compensation out of the personal estate of a testator in respect of C.'s life interest in the same premises, and to a lien on a sum of stock standing in the names of the Defts the trustees for the amount of such compensation ; and directing an inquiry what was the amount of such compensation and payment thereof, with interest by the Defts, the executors; and that upon such payment being made the Defts should be at liberty to transfer the stock and pay the dividends thereon into Court, &o., see Barker v. Cox, V.-C. B., 4 Ch. D. 464. NOTES. Where a vendor proposes to convey an estate as owner of the fee-sim- ple, and it turns out that he is only entitled to a partial interest in it, the Court can, at the suit of the purchaser, insist on the vendor making good his agreement to the extent to which he is able to make it good, and he must submit to an absCtement of the consideration accordingly: Castle V. Wilkinson, 5 Ch. 534; Barker v. Coar, 4 Ch. D. 464; Barnes v. Wood, 8 Eq. 424; Nellhorpe v. Holgate, 1 Coll. 203; Mcyrtlock v. Bulla; 10 Ves. 306, 816. And so also if the vendor can only convey a part of the land comprised in the agreement: Hill v. Buckley, 17 Ves. 394, Form 3, sup. p. 681. And where a vendor was only entitled to an undivided moiety, the purchase-money was abated one half: Hooper v. Smart, 18 Eq. 683. And generally where there is a difference capable of being ascertained CH. XXIII. S. II.] COMPENSATION OR ABATEMENT. 683 between what is promised, and what can be performed, the Court may- measure the difference, and decree specific performance with compensar tion : Ld. Brooke v. Rounthwaite, 5 Hare, 298, 303, 304; Powell v. Elliott, 10 Ch. 424, sup. p. 681. But compensation will not be allowed where the purchaser knows what he is really purchasing: Castle v. Wilkinson, 5 Ch. 534 (though the pur- chaser may elect to take a conveyance of what the vendor can convey at the original price : Maw v. Topham, 19 Beav. 576) ; — nor where the amount of compensation cannot be duly ascertained: Wesimacoit v. Robins, 4 D. F. & J. 390; — nor in lieu of an indemnity against an outstanding charge: Bain' bridge v. Kinnaird, 32 Beav. 346 ; — nor after rescission according to the terms of the agreement: Mawson V. Fletcher, 6 Ch. 91; when the purchaser has had due opportunity of electing to complete without it: Duddellv. Simpson, 2 Ch. 102; Cording- leyv. Cheeseborough, 4 D. P. & J. 379. An agreement may be enforced at the instance of the vendor on pay ment of compensation for trifling defects, if the purchaser will obtain substantially what he bargained for, and the defects can be fairly valued: Dyery. Hargrove, 10 Ves. 505; e. g. compensation may be made for — '^ small annual charges: Ecdsey v. Grant, 13 Ves. 73; Horniblow v. Shirley, 13 Ves. 81; — ambiguous covenants on sale of leaseholds: NouaUle v. Flight, 7 Beav. 521; — tithes, where the desire to obtain the premises tithe-free was not the main inducement of the purchase : Smith v. Tolcher, 4 Buss. 302 ; Binks V. Lord Rokeby, 2 Sw. 222; Howland v. Norris, 1 Cox, 59; — bad condition of house and farm: Dyer v. Hargrave, 10 Ves. 305; — semUe, mistake in the proportion of lands of different tenures : Hud- son V. Cook, 13 Eq. 417; — mistake of one quarter in measurement, where the error was not material: King v. Wilson, 6 Beav. 124; — but not for a patent variation from the description: Dyer v. Har- grave, 10 Ves. 305; — nor for difference of tenure, as freehold for copyhold: Ayles v. Cox, 16 Beav. 23; or under-lease for lease: Madeley v. Booth, 2 D. & S. 718; — aor for want of title to a strip of land between a house and a road: Perkins v. Ede, 16 Beav. 193; — nor for prejudicial rights over four and a half out of thirty acres: Shackleion v. Sutcliffe, 1 D. &S. 609; or over a jetty sold with a wharf: Peers v. Lambert, 7 Beav. 546 ; — nor for defects in the security for redeemed laud-tax: Cox v. Coven- ton, 31 Beav. 378. Compensation will not be allowed at the instance of a vendor where there has been misrepresentation calculated seriously to mislead a pur- chaser : Dimmock V. Hallett, 2 Ch. 21; Stewart v. AUiston, 1 Mar. 26, 34; — nor where the amount of compensation cannot be properly ascer- tained : Ld. Brooke v. Rounthwaite, 5 Hare, 298. The right to compensation may be waived by either party, either expressly, or by conduct; as by the purchaser taking possession and accept- 684 SPECIFIC PERFORMANCE. [PAKT IV. ing the title: Burnell v. Broxen, IJ. & W. 168; or by the vendor turning the purchaser out of possession : Knatchbull v. Grueber, 3 Mer. 125. A condition providing for compensation for any error or misstatement in the particulars of sale applies to accidental slips, not to material mis- representations: Dimmock v. Hallett, 2 Ch. 21, 29; Flight v. Booth, 1 Bing. N. p. 370, 377; — and therefore was not enforced at the vendor's instance in the case of a difference of tenure; Ayles v. Cox, 16 Beav. 23; or of prejudicial easements: Shackleton v. Sulcliffe, 1 D. & S. 609; — but was enforced at the instance of the purchaser for the absence of a right of renewal of a customary lease: Painter v. Newhy, 11 Hare, 26; or for a misstatement as to rent: Cann v. C, 3 Sim. 447; secus, for a mistake amounting to one half of the acreage : E. Durham v. Legard, 34 Beav. 611. A condition that no compensation be allowed in respect of errors or misstatements may be enforced by a vendor in respect of small errors or inaccuracies, not of regkless and careless statements: Whiitemore v. W., 8 Eq. 603 ; Portman v. Mill, 2 Russ. 570 ; although in such a case it may preclude any claim for compensation on the part of the purchaser : Cord- ingley v. Cheeseborough, 4 D. F. & J. 379. .. Questions of compensation must be put in issue on the pleadings: Casamajor v. Strode, 2 My. & K. 730; and, it is said, will not, in the absence of fraud, be entertained after completion: Manson v. Thacker, 7 Ch. D. 620; but see Cann v. C, 3 Sim. 447. Section III. — Agreements for Leases or Underleases. 1. In Suit hy Intended Lessee. Declabe &c. [Forms 1-4, p. 644] ; And Let the Deft execute a lease of the estate comprised in the said agreement for the term therein mentioned to the Pit 'ilf so, with the usual covenants] , ac- cording to the said agreement ; And Let such lease be settled by the Judge, in case the parties differ ; And Let the Pit execute to the Deft a counterpart of the said lease. — Liberty to apply. 2. The Like, where Assessed Damages are awarded in addition. Declare &c. [Forms 1-4, p. 644]. — Lease and counterpart to be executed — "And Let the Deft on or before the of pay to the Pit J. £ by way of assessed damages." — Liberty to apply. — Jaques v. Millar, Fry, J. , 6 Ch. D. 153. CH. XXIII. S. III.] AGREEMENTS FOR LEASES OR UNDERLEASES. 685 3. In Suit hy Intended, Under-lessee where License needed. Declare &c. [Forms 1-4, p. 644] ; " And Let the Deft B. for that purpose execute snd procure to be executed by all necessary parties a lease to the Pits P. and L. of the shop &c. comprised in and agreed to be demised by the said agreement, for the term, and subject to the covenants, agreements, and stipulations in the said agreement mentioned, and do all necessary acts for that purpose." — ■Lease to be settled &c. — Zong v. Bowring, M. R., 33 Beav. 585. 4. The Like, where Damages are awarded in the Alternative, Declare &c. [Forms 1-4, p. 644] ; Lease to be settled &c. — "But if it shall appear that the Deft is unable specifically to per- form the said agreement, then Let an inquiry be made what sum of money ought to be allowed and paid by the Deft to the Pit (by way of damages) for his non-performance of such agreement." — Deft to pay Pit's costs of smt.—mUon v. Tipper, V.-C. S., 16 W. R. 5. In Suit by Intended Lessor — Houses fit for Habitation. Declare &c. [Forms 1-4, p. 644]; "And Declare that the house &c. in the pleadings mentioned was completed and finished and fit for habitation on the of ; And Let the Pit ex- ecute and deliver to the Deft a lease of the said house for the term of &c., at the rent and upon the terms, and with and under the covenants, and subject to the powers, and in accordance with the agreements and stipulations mentioned and referred to in and by the said agreement dated the of ; And Let the Deft execute and deliver to the Pit a counterpart of such lease." — Lease and counterpart to be settled &e. — Deft to pay Pit's costs, charges, and expenses of lease and counterpart, and his costs of suit. — Liberty to apply. — Faulkner v. Llewellyn, V.-C. K., 11 W. E. 1055 ; affirmed 12 W. R. 193. 6. Agreement for Mutual Leases. "Let the Deft execute to the Pit a lease for years of all such parts of the house. No. &c. described in the plan to the (bill) annexed as are colored &c., the Pit by his pleadings offering to execute a lease for the like term to the Deft of all such parts of 686 sPECino pebfoemancb. [past it. the premises described in the said plan as are colored &c. at the rent of &c. ; And Let the Pit and Deft execute to each other counterparts of such leases respectively ; And Let such leases be settled &c. ; " — Deft to pay Pit's costs of suit. —Liberty to apply. — Hemng v. Miles, V.-C. S., 11 Dec. 1854. 7. Inquiry if Lease tendered for JExecwtion is a Proper Lease. Declare, &c. [Forms 1-4, p. 644] ; " And Let an inquiry be made whether the lease of the messuage &c. executed by the Pit and tendered by him to the Deft is a proper lease ; And, if it shall be certified that the same is a proper lease. Let the Deft accept the s?ime and e:^ecute a ijounterpart thereof; But if not"' — a pro|>er lease to be settled &c. — Usual directions. — Creyhe v. Fox, M. R. , 21 May, 1806. 8. Alatement from Bent for I>eficiency of Parcel?. Declare &c. [Forms 1-4, p. 644] ; " And Let the Deft execute a lease of the premises comprised in the said agreement for the term therein mentioned to the Pit with the usual covenants and provisions according to the said agreement, except that the acreage is to be 214a. Ik. Up., and the rent is to be reduced in the propor- tion which 235a. 2r. 9p., bears to 214a. 1r. Up." — Such lease to be settled &c. — Pit to execute counterpart. — Deft to pay cost of suit. — McKenzie v. Seaketh, Fry, J., 1877, 7 Ch, D. 675. 9. Agreem&nt for Lease, with Option of Further Term. Declare &c. [Forms 1-4, p. 644] ; " And Declare that, accord- ing to the true construction of such contract, the Pit is entitled, on the terms in such contract mentioned, to have a lease of the mes- suage &c. therein comprised for twenty-one years in addition to his unexpired term therein ; such term of twenty-one years to be determinable at the expiration of the first seven or fourteen yea.rg thereof at the lessees' option, and on giving six (calendar) months' notice ; and for a further term of seven years from the expiration of such term of twenty-one years, if not previously determined, on giving six (calendar) njoatUs' notice, requiring the same before the expiration of such term of twenty-one years, and to have his rent reduced from the ' day of to £ per annum ; And the Pit by his counsel waiving the option of determining the said term of twenty-one years at the expiration of the first seven or fourteen years thereof, and electing to take the flirther term of seven years CH. XXIII. S. III.] AGREEMENTS FOB LEASES OR UNDERLEASES. 687 from the expiration of such term of twenty-one years, Let a lease of the said messuages &c., having regard to such waiver and elec- tion as aforesaid, be settled &c. ; " — Lease and counterpart to be executed. — Infants and persons not in esse declared trustees, and consequent directions. — Directions as to costs. — Liberty to ap- ply. — Hodgson v. Bower, V.-C. K., 21 April, 1859. For decree, where the Deft admitted that he had no title to the premises mentioned in an agreement for a lease, declaring the Pit entitled to a lien on such estate and interest as the Deft had therein for the purpose of securing repayment to the Pit of all moneys paid by him on the faith of and pursuant to the said agreement, and for his costs, and directing inqmries what sums had been laid out by him in buildings, repairs, or improvements on the premises, and as to deterioration, see MiddUton V. Magnay, V.-C. W., 2 H. & M. 233. For decree declaring that the Pit was entitled, at the time of the com- mencement of the suit, to specific performance of an agreement for a lease, but that, the term having elapsed during which the agreement was to be enforced, the Court would not then decree specific performance, refusing an inquiry as to damages, and ordering part of the consideration which had been paid to be returned without costs on either side, see Be Brassac t. Martyn, V.-C. W., 20 July, 1863. For decree for specific performance of a parol agreement for a leasBi with the option of purchasing, where there had been part performance, see Nunn V. Fabian, L. C, 1 Ch. 35. For decree directing the execution of a deed granting the occupation of a refreshment room to the Pits, their assigns and nominees, being tenants of a hotel under a lease, but subject to certain restrictions, and directing a deed to be settled in Chambers accordingly, see Flanagan \. O. W. Ry. Co., V.-C. G., 7 Eq. 126. For decree declaring that according to the tnje construction of an agree- ment the Deft corporation agreed to demise to the Pit such portion of their property as formed the frontage of the Pit's field, and also the flat part of the sea beach comprised between two lines drawn from the extremities of such field perpendicularly towards the sea, such lines being continued until they should reach high-water mark, and directing the Defts to execute a lease accordingly, the Pit undertaking to give up such parts of the land taken by him as were not comprised ia the lease, see Crook, v. Corporation of Seaford, L. C, 6 Ch. 554. For decree declaring that the Pit was entitled to separate leases of the pieces of land colored blue and green upon the plan annexed to the agree- ment, &c., and that he was not bound to enter into any agreement or incur any obligation as to the land colored pink in the said plan, end that the Deft had waived his right to have the leases granted according to a specification and plans approved by him or on his behalf, and directing leases to be settled ^cordingly, see Wilkir^onv. Clements, L. JJ., 8 Ch. 99, For declaration that the Pit was entitled to the messuage and heredita- ments in the pleadings mentioned and the possession thereof during her life, if the term granted by the lease thereof should so long continue un- expired, or for the residue of the said term If the same should expire in SPECIFIC PERFORMANCE. [PART IV. her lifetime, she paying the ground-rent reserved by the said lease, and the rates and taxes in respect of the said messuage and hereditaments, see Coles V. Pilkington, V.-C. M., 19 Eq. 174. NOTES. By the Judicature Act, 1873, s. 34, causes and matters relating to the specific performance of agreements for leases are assigned to the Chancery Division. CONSTEUCTION OF THE AGREEMENT. An agreement for a lease means a valid lease, and is an implied promise at law that the intending lessor has a good title to demise: Stranks v. St. John, L. R. 2 C. P. 376. Where the intending lessee knows that the intending lessor has only a leasehold interest, he is affected with constructive notice of the restrictions contained in the original lease, and cannot insist on having a lease at variance with those restrictions: Cosserv. Collinge, 3 My. & K.. 283; Lewis V. Bond, 18 Beav. 85; at least if the restrictions are not unusual: Flight V. Barton, 3 My. & K. 282 ; unless it be expressly stipulated that the lease is to contain certain specified covenants : Van v. Corpe, 3 My. & K. 269. " Usual covenants " do not include covenants against keeping a school. Van V. Corpe, 8 My. & K. 269; nor against particular trades: Propert v. Parker, 3 My. & K. 280; Wilbraham v. Livesey, 18 Beav. 206; nor against assigning without notice: Hampshire v. Wickens, 26 W. R. 491; Church V. Browne, 15 Ves. 258 ; nor a proviso for re-entry on breach of covenant, other than non-payment of rent, in a mining (and serable in any) lease: Hodgkinson v. Crowe, 10 Ch. 622 (except in the case of a public-house, where it was held that a proviso for re-entry on carrying on any business other than that of a victualler was usual: Benriett v. Womack, 7 B. & C. 627). As to the construction of particular words and phrases in agreements for leases, see as follows: — — " westward of a down-throw fault to the west supposed to run," &c.: Davies v. Shepherd, 1 Ch. 410 ; — " subject to the landlord's approval: " Lehmann v. McArthur, 3 Ch. 496; — " working coal in a proper and workmanlike manner; " " winning coal: " Zewis v. Fothergill, 5 Ch. 103; and see Jegon v. Vivian, 6 Ch. 742; — "flat part of the beach opposite" a frontage: Crook v. Corp. of Seaford, 6 Ch. 551 ; — " shall have the occupation of, &c. , subject to the same restrictions and provisions as relate," &c.: Flanagans. G. W. Ry. Co. ,7Eq. 116; — " lease to be for seven, fourteen, or years: " Powell v. Smith, 14 Eq. 85; — " the like provisions in all respects as are contained in " the original lease: Williamson v. W.,9 Ch. 729; — "grant to the tenants, their executors or administrators, afresh lease: " Finch v. Underwood, 2 Ch. D. 310. CH. XXIII. S. III.] AGREEMENTS FOR LEASES OR UNDERLEASES. DAMAGES. Where the concurrence of a superior landlord is necessary, and cannot be obtained, an inquiiy as to damages will be directed : Hilton v. Tipper, 16 W. R. 888, Form 4, sup. p. 685; and see Howe v. Hewet, 31 Beav. 420; — unless the agreement is made " subject to the landlord's approval: " Lehmann v. McArlhur, 3 Ch. 496 ; or made on the understanding that a necessary party is to concur : Franldinski v. Ball, 33 Beav. 560. The mere necessity of the landlord's license is not a defence to a suit by an intending under-lessee; but in such cases the Deft -will be directed to procure his concurrence : Long v. Bowring, 33 Beav. 585, Form 3, sup. p. 1319 ; and see Leitch v. Simpson, I. R. 5 Eq. 613. Where damages were awarded to an intending lessee for delay, the measure of damages was held to be the amount of rent payable during the period when the Pit was out of possession : Wesley v. Walker, 26 W. R. 368 ; and where in a similar case the damages had been assessed at the hearing, it was held that the assessment was on the footing that rent was not to be payable during the same period: Jaques v. Millar (No. 2), 26 W. R. 368. Where by the mistake of his agent the Deft was unable to grant a lease of the whole estate comprised in the agreement, the rent to be paid was proportionately redaced by way of compensation: McKenzie v. Hesketh, 7 Ch. D. 675, Form 8, sup. p. 686. Where a trustee in bankruptcy disclaimed a lease, an intending under- lessee had no title to relief in Equity against the superior landlord: Taylor V. Gniott, 20 Eq. 682. COSTS. The rules as to costs in the case of sales apply also in the case of leases; see Longinotto v. Morss, 26 L. T. If . S. 828. Where the lease was to be prepared by the lessor's solicitor, who raised frivolous objections, the lessor was ordered to pay the costs of the suit, and of the objections : Mappin v. Savory, 20 L. T. N. S. 777. ANTE-DATING LEASES. Formerly where it was doubtful whether there had not been breaches of covenant intended to be inserted in the lease, the lease was ante-dated that the question might be decided at law: LUlie v. Legh, 3 D. & J. 204; Pain V. Coombs, 3 Sm. & G. 449, 1 D. & J. 34. But before the passing of the Judicature Acts it was held that such questions ought to be disposed of before decreeing the execution of the lease: per V.-C. J., in Bankart v. Tennant, 10 Eq. 141; and under the present law it is presumed that this course will always be followed. As to relief against breaches of covenant after the execution of the lease in certain cases, see 22 h 23 V. c. 35, ss. 4-9; Dart V. & P. 170; Page v. Bennett, 2 Giff. 117; HugJies v. Metropolitan Ry. Co., 2 App. Cas. 439. 44 690 SPECIFIC PBBFORMANCB. [PABT IV. Section IV. — Agreements for Special Purposes. I. AGREEMENT FOR THE TRANSFER OF SHAKES. Vendor's Suit — Transfer to be registered. Purchase-money having been paid. Declare &c. [Forms 1-4, p. 644] ; "And Let the Pit and all proper parties execute a proper deed of transfer of the said shares to the Deft, such deed to be settled &c. ; And Let the Deft concur in aU steps which may be necessary and proper for causing the said shares to be duly registered in his name in the register of members of the Corporation, Limited." — Declarations that the Deft is liable to indemnify the Pit against calls, and directions to settle deed accordingly. — Deft to pay Pit's costs of suit — Liberty to apply. — Paine v. Hutchinson, V.-C. S., 3 Eq. 260, as varied on appeal by L. JJ., 3 Ch. 392. NOTES. Where the dispute is between persons claiming to be members of a company, the proper coMse, at least in complicated cases, appears to be to commence a suit for specific performance of the agreement to transfer the shares ; where the dispute is between the company and persons claim- ing to be members, the proper course is to apply by summons under s. 35 of the Companies Act, 1862, to have the register rectified: Buckley, p. 88 et seq.; Ward §• Henry's Case, 2 Ch. 431. Au order will not be made on a summons under this section involving questions between alleged members, where there is a real dispute and the amount is large, nor if the facts are complicated or any general principle is involved ; secits, where the applicant's title is clear : Exp. Shaw, 2 Q. B. D. 463; Exp. Sargent, 17 Eq. 273; and see Davies'' Case, 33 L. T. N. S. 834. The Court has jurisdiction on such au application to order an unsuc- cessful respondent, other than the company, to pay costs; Exp. Shaw, 2 Q. B. D. 463; Davies' Case, 33 L. T. N. S. 834; Exp. Sargent, 17 Eq. 273, not being followed on this point. A decree for specific performance directing the Deft to concur in aU steps, &c., or to procure registration as far as possible, may be made after the commencement of the winding-up of the company: Robins v. Edwards, 15 W. R. 1065. As to the discretion of directors to reject a transferee, see Buckley, p. 30; Parker's Case, 15 W. B„ 974; S. C. 2 Ch. 685. CH. XXIII. S. IT.] EXECUTION OF WORKS. 691 n. — EXECUTION OF WORKS. 1. Agreement hy Railway Company to construct Siding. " Declare that the agreement in the pleadings mentioned, dated the of , whereby the Defts agreed to construct and maintain, at their or any of their expense, upon land belonging to the Pit, and provided by him for that purpose, such a siding as in the said agreement mentioned, ought to be specifically performed and car- ried into execution, and decree the same accordingly ; And Let the Pit within one month from the date of this decree point out the land upon which such siding is to be made." — Defts to pay Pit's costs of suit. — Liberty to a|)ply. — Chreene v. West Cheshire My. Co., V.-C.B.,13Eq.44. 2. Buildings to he erected — Divergence between Agreement and Plans. Declare &c. [Forms 1-4, p. 644] ; "And it appearing that a plan of the house to be erected in pursuance of such agreement has been approved of between the parties, Let the Deft S. forthwith proceed to construct and erect a house on the ground comprised in the said agreement, in accordance with such plan, save so far as such plan interferes with the stipulations contained in the said agreement that such house is to be built according to the Act or Acts of Parliament for the time being in force §)r the regulation of buildings in or near the metropolis." — CvJntt v. Smith, V.-C. S., 10 Jur.N. S. 1123. For decree for specific performance of an agreement, directing the Defts to complete the bridges, approaches, and works according to the arrange- ment constituted by the said agreement, see Firth v. Midland Ry. Co., V.-C. B.,20Eq. 100. For decree declaring a Deft company bound to make and construct a siding, with approaches proper for its conveni«nt use, but not sheds or other conveniences, and directing an inquiry.in Chambers, if the parties differed, where or by what means the same should be done, see Lytton v. G. N. R. Co., V.-C. W., 2 K. & J. 399. For decree declaring a Deft company bound to construct and maintain an archway sufficient to permit a loaded carriage of hay to pass under their railway at such place as the Pit should think most convenient in his plea- sure-grounds, and ordering the Pit to point out such place within reason- able time, with liberty to the Defts to apply in case of refusal of assistance by the Pit, and liberty to the Pit to apply in case of delay by the Defts or otherwise, see Storer v. G. W. Ry. Co., V.-C. K. B., 2 Y. & C. C. 54. 692 SPECIFIC PERFORMANCE. [PAET IV. m. — GEAUT OP ANNTJITT. Agreement to grant Annuity enforced with Modifications. Declare that the agreement contained in the letter of &c. in the pleadings mentioned, ought to be specifically performed with the modifications which are embodied in the declarations next here- inafter contained, and which appear by the evidence in this cause to have been agreed upon by the Pit K. and the Deft, and decree the same accordingly ; And Declare that the Pits K. and C. {an infant) are respectively entitled to have paid to them by the Deft the annuities hereinafter mentioned, that is to say &c. ; And Let the Deft pay to the Pits such respective annuities according to the above declarations ; And Let a further deed or deeds of covenant by the Deft for payment of the said annuities be settled &c. ; And Let such deed be executed by the Deft and the Pit K., And Let the said Deft within weeks after &c. pay to the Pit K. the arrears of the said annuities, and the Plf s costs of suit. — Ekena/n v. .SawrfZey, V.-C. K., 12 "W. R. 930, affirmed, 2 D. J. & S. 283. For decree for specific performance of an agreement to grant an an- nuity on a dissolution of partnership, directing a deed to be settled, and payment of arrears, see Avinn v. Holt, V.-C. W., 2 K. & J. 70. NOTES. In Keenan v. Handley, sup., the consideration was a release from an alleged promise of m^riage. An agreement to grant an annuity means an annuity to be secured by deed: Auhin v. Holt, 2 K. & J. 66; and see Dickson v. Gayfere, 1 D. & J. 655. IV. — PEESONAL SERVICES. Agreement to employ a Manager of Works at a Percentage on Trade Profits. Declare &c. [Forms 1-4, p. 644] ; " And Let the following &c. : 1. An inquiry when the engagement of the Pit under the said agree- ment ceased ; 2. An account of the profits of the business carried on by the Deft G. at &c. in each year from the of to the termination of the Plf s engagement, such account terminating on the of in each year except for the last year of the Plf s engagement, and as to such year terminating on the day when the Plf s engagement ceased ; 3. An account of what, if anything, is CH. XXIII. S. IV.J COMPROMISE OP EIGHTS. 693 due to the Pit from the Deft, allowing the Pit f per cent on the profits hereinbefore directed to be ascertained, and regard being had to the provisions in the agreement for a guaranteed minimum of £500 per annum, and after allowing to the Deft all sums paid by him to the Pit on account of the said guaranteed minimum or £ per cent on the said profits." — Adjourn &c. — Bishton v. Grissell, V'.-C. "W., 5 Eq. 326, 10 Eq. 393. NOTES. Agreements for the performance of personal services involving zeal and confidence are in ganeral obviously incapable of being specifically enforced. But under special circumstances, e. g. where the employment has ceased but the agreement remains unperformed on the part of the person receiv- ing the benefit of the services, the decree will be made as a foundation for directions for account or other relief: RisMon v. Grissell, Form 1, sup. ; and see Daggett v. Ryman, 16 W. K. 302. The decrees in these cases are analogous to decrees for the execution of partnership deeds or declarations of right to share as partners as founda^ tions for further relief. In RisMon v. Grissell, sup., the Pit had been engaged as manager of ironworks which had been subsequently sold. On subsequent proceedings in the cause it was held that the Deft was not entitled to deduct interest on capital or the guaranteed £500 in esti- mating profit and loss; that he was entitled to deduct depreciation from the running out of his lease, and waste of plant and machinery; that the Fit was not entitled to take into account the excess of the proceeds of sale over the estimated value of the concern: S. C. 5 Eq. 326; and that where the sums paid on account had been insufficient, the Pit was entitled to interest from the time of demand only: S. C. 10 Eq. 393. V. — COMPEOMISE OF EIGHTS. Agreement for Compromise of Rights under a Will. " Declahe that the agreement of the of , as altered by the agreement of the of , in the pleadings mentioned, ought to be specifically performed and carried into execution, and order and decree the same accordingly; And Declare that the valuation stated in the statement of defence of all the Defts except P. to have been made on the of is valid and binding upon all the persons interested in the residuary estate of M. the tes- tator ; And Let the Pit and Defts (other than P.) execute to each 694 SPECIFIC PERFOEMANCE. [PAET IV. other mutual conveyances and assurances of the properties com- prised in such valuation ; And Let the Deft P. concur so far as may toe necessary in such conveyances and assurances which are to be settled &c." — Direction to tax costs. -^" And Declare that the said costs are payable out of the testator's estate, and are a charge on his residuary estate." ^- Liberty to apply as to raising such costs. — "And Let an inquiry be made whether any, and what, part of the real and personal estate of the testator is outstanding or undisposed of." — ^^ Adjourn &c. : Me Mence, Harrison v. Mence,- V.-C. H., 28 July, 1877. NOTES. Where a suit was actually pending, an agreement for compromise could not before the commencement of the Judicature Acts be enforced in that suit: Pryer y. Gribble, 10 Ch. 534 ; Richardson r. Eyton, 2 D. M. & G. 79; unless it related solely to the prosecution of the suit; per James, L.J., in Pryer v. Gribble, 10 Ch. 540; or did not involve equities distinct from those appearing on the record in the existing cause: Askew v. MiUington, 9 Hare, 65. Since the Judicature Acts, it has been held that an order may be made on motion or summons in the existing suit, staying proceedings in that suit, in accordance with the terms of the compromise: Eden v. Naish, 7 Ch.,D. 781; and see Scully v. Ld. Dundonald, 8 Ch. D. 658; but the Court refused at the hearing of such an application to direct an inquiry as to damages caused by the repudiation of the agreement: Eden v. Naish, 7Ch.D.788. Section V. — Proceedings in Default op Compliance. The remedies open to a Pit where the Deft refuses to comply with the judgment or decree are as follows: — 1. He may obtain an order fixing time and place for payment and con- veyance, or a period within which the judgment or decree is to be obeyed, and if this order be not obeyed, may proceed against the Deft for contempt. 2. If a purchaser of land, he may enforce the agreement by means of a vesting order. 3. He may apply for an order rescinding the agreement. 4. If a vendor, he may enforce his vendor's lien. These remedies are dealt with in this section in order. Clauses in agreements for sale of land providing for resale and charging the purchaser with the deficiency were, before the Judicature Acts, en- forceable at law and not in equity: Dickinson v. L. C. §• D. Ry. Co., 15 W. R. 141; but see Rome v. Young, 3 Y. & C. 199; Nash v. Worcester Commrs., 1 Jur. N. S. 973. CH. XXIII. S. v.] PBOCBBDINGS IN DEFAULT OP COMPLIANCE. 695 1. Appointment of Time and Place for Execution — Agreement for Sale of Land — Purchaser's Suit. "Upok motion &c., this Court doth hereby appoint twelve of the clock at noon on , the day of , at the chapel of the Rolls in Rolls Yard, Chancery Lane, in the county of Middlesex, as the time and place for payment of the balance of the purchase- money of the premises comprised in the contract in the pleadings mentioned, pursuant to the said judgment (decree) dated the day of , and Let the Deft at such time and place deliver to the Pit the conveyance of the premises comprised in the contract in the said judgment mentioned, settled by the Judge in pursuance of the said judgment, and referred to in the Chief Clerk's certificate dated &c., duly executed by himself the said Deft and by B. in the said conveyance named, together with aU deeds and writings &c., on the Pit paying to the Deft at the time and place aforesaid the sum of £ appearing by the aflidavit of P. filed &c. to be the total amount payable by the Pit to the Deft in respect of the sum of £ mentioned in the said judgment as being the balance of the purchase-money of the premises comprised in the said contract, to- gether with interest thereon at the rate of £5 per cent per annum from the of to the of , less income tax, after deducting from such balance the sum of £ appearing by the Taxing Master's certificate dated &c. to be the amount of the Pit's costs taxed pursuant to the said judgment." — Deft to pay to Pit his costs of the application and consequent thereon. — Darling v. Evans, V.-C. B., 18 July, 1878. For similar order in a vendor's suit, see Morley v. Clavering, M. R. , 30 Beav. 108. For orders for attachment and sequestration against persons in contempt for disobedience to these or other orders of the Court, v. inf. " Execu- tion OF Decrees, Judgments, and Okders." For writ of ne exeat regno against a purchaser, see Boehm v. Wood, T. & R. 332. NOTES. In default of compliance with the order fixing time and place for execu- tion or payment, or a period within which the agreement is to be complied with, the Pit in any suit may proceed at once to issue sequestration: Ord. 1875, XLVii. 1; 32 & 33 V. c. 62, s. 8; and as to the practice relating to sequestrations, see Dan. Ch. Pr. 912; et v. inf. "Execution of Deckees, Judgments, and Orders." Where the default is not in payment of money the Pit may move, on notice to the Deft, for a writ of attachment against him for non-compli- 696 SPECIFIC PERPOHMANCB. [PAET IT. ance: Ord. 1875, xnv. 2; and as to such process, see Dan. Ch. Pr. 906; Mayor, S^c. ofHyihe v. East, 1 Eq. 620. The Pit in a vendor's suit may also in a proper case obtain a writ of ne exeat regno against the purchaser at any stage in the suit: Boehm v. Wood, T. & R. 332. 2. Agreement for Sale of Land — Purchaser's Suit — De- faulting Party declared Trustee — Person appointed to Convey. " Upon motion &c. and upon reading &c. {state evidence of de- fault). Declare that the Deft S. is a trustee of the hereditaments therein comprised within the meaning of the Trustee Act, 1850, and of the Act of the 15th and 16th V. c. 55 ; And Let the Pit be at liberty on or before the day of next to pay the sum of £ the balance of the purchase-money of the said hereditaments into Court to the credit of this cause &c. ; And Let D. of &c. so- licitor be appointed to execute the engrossment approved by the Judge of the conveyance of the said hereditaments ; And upon such payment into Court as aforesaid Let the said D. convey the said hereditaments to the Pit in manner therein mentioned." — Deft to pay to the Pit his costs of suit subsequent to the decree, and of the application and consequent thereon. — Warrender v. Foster, V.-C. S., 31 Jan. 1854. 3. Order rescinding Agreement. Upon motion &c. ; "Let the agreement dated the of in the pleadings mentioned be rescinded ; And Let all further pro- ceedings in this suit be stayed, except as to an}' application which may be made to this Court to award and assess the damages which the Pits have sustained bj' reason or in consequence of the breach of the said agreement." — Deft to pay costs of the application. — Sweet V. Meredith, V.-C. S., 4 Giff. 207. For like order staying proceedings, "except as to the recovery of the costs already ordered to be paid by the Defts to the Pits, or the costs of this application, and except as to any application," &o.,see Watson\. Cox, V.-C. B., 15 Eq. 219. For decree in supplemental suit declaring that a contract for sale to the Deft of land conveyed to him ought to be rescinded, and directing inqui- ries what was the value of an unfinished building erected by the Deft in pursuance of a covenant in that behalf contained in the conveyance of the same land, what damages had been sustained by the Pits by reason of the Deft's default in performance of his covenant; Pits' costs to be taxed (including any costs incurred in the original suit remaining unpaid) from the foot of a previous taxation, and paid by the Deft within a limited time; CH. XXIII. S. v.] PROCEEDINGS IN DEFAULT OP COMPLIANCE. 697 in case they should not be paid, the Pits to be at liberty to set off the ascertained damages and costs from the certified value of the building and the purchase-money and interest, and the balance to be paid by the Deft to the Pits; and declaring the Deft a trustee for the Pits of the land con- veyed, and vesting such land in the Pits for the estate therein of the Deft, see Mayor, §-c. of Hyihe v. East, V.-C. M., 1 Eq. 620, NOTES. Where the Deft refuses compliance with the decree, the Pit is entitled, after a reasonable time, to an order to be obtained on motion declaring the agreement rescinded: Foligno v. Martin, 16 Beav. 586; Sweet v. Meredith, 4 GifE. 207. Where the Deft ask€d for further time, a short period was fixed for payment : Simpson v. Terry, 34 Beav. 423. Upon motion to rescind, an application by the Deft for a return of the deposit was refused: Dunn v. Vere, 19 W. R. 151. In Mayor, S/'c. ofHythe v. East, orders had been made fixing periods for compliance, and finally an order for attachment, but the Deft absconded before the order was drawn up. A motion to assess the damages having been made and refused: S. C. 1 Eq. 620; a supplemental suit was com- menced and a decree obtained as stated. 4. Agreement for Sale — Vendor's Lien declared at the Searing, Declabe &c. [Forms 1-4, p. 644]. — Account of what is due to Pit for principal and interest in respect of the purchase-money. — Defts to pay the amount within three months after the date of the certificate, and thereupon and upon payment of costs conveyance to be executed &c. — Defts to pay Pit's costs of suit. — "And De- clare that the Pit is entitled to a lien upon the said hereditaments in respect of the said purchase-money, with interest thereon at the rate of £5 per cent per annum from &c., until payment, and also for the Pit's said costs ; And in case of default being made in such payment or payments as aforesaid, the Pit is to be at liberty to ap- ply to this Court to enforce such lien." — Liberty to apply gener- ally. — Heath t. Metn. By. Co., M. R., 26 Jan. 1869 ; Zycett v. Stafford <& Vttoxeter My. Co., V.-C. B., 13 Eq. 261. See also Wing V. Tottenham ., 4 Beav. 54. EVIDENCE. The burden of proof lies on the Pit, and on an application to rectify an executed deed the Court wUl look at the evidence jealously: Wright v. Qoff, 22 Beav. 207, 214; Barrow v. B., 18 Beav. 529. In all cases the real agreement must be established by evidence, parol or written ; if there be no previous agreement in writing, parol evidence is admissible ; if there be a previous agreement in writing, which is unam- biguous, the deed will be rectified accordingly; if it be ambiguous, parol evidence may be used to explain it: M. R., in Murray v. Parker, 19 Beav. 308; Price v. Ley, 4 GifE. 235. Where mutual mistake is set up, the executed deed must be shown to be contrary to the intentions of all parties: Fowler v. F., 4 D. & J. 250; and the denial of one of the parties is almost conclusive: Imham v. ChUdf 1 Bro. C. C. 93; M. Townshend v. Stangroom, 6 Ves. 334; at least if the Pit's case is not supported by documentary evidence: Mortimer v. Shortall, 2 Dr. & War. 363; and see Bloomer v. Spittle, 13 Eq. 427; 2 Taylor Ev. pp. 951, 952. RECONVEYANCE — RENTS AND PROFITS — IMPROVEMENTS. Where an assurance of land is set aside on the ground of mistake or fraud, rendering it void in Equity, a reconveyance should be directed: Clark V. Malpas, 4 D. F. & J. 401 ; and see Bolton v. Bp. of Carlisle, 2 H. Bl. 264; Roe d. E. Berkeley v. Alp. of York, 6 East, 86; 1 Shepp. Touohst. 69, 70; seem, in the case of forgery or fraud rendering a deed void at Law: Clark v. Malpas, 4 D. F. & J. 401. Where a deed was rectified after various dealings with the lands com- prised in it the decree directed assurances to be executed for the purpose 712 SPECIFIC RELIEF. [PAET IT. of giving effect to the decree, and to the prior dealings: Malmesbury v. M., 31 Beav. 407. Where an assurance of land comprised more than was intended, it was said by Lord Cottenham that a reconveyance ought to be executed: Exeter V. £., 3 My. & Cr. 326. It has been recently held, however, that the declaration of the Court that an assurance of land ought to be rectified, followed by an order that it be rectified accordingly, is sufficient to pass the legal estate without a conveyance, at least in cases where the deed comprises less land than was intended: Wliite v. W., 15 Eq. 249, Form 3, sup. p. 708. The better course seems to be to direct the execution of proper convey- ances in all cases where deeds affecting the legal estate in real property are rectified. Where a conveyance is set aside on the ground of mistake, an account of rents and profits will be directed, and interest charged on the purchase- money from the date of the conveyance: Bloomer v. Spittle, 13 Eq. 427; or from the date when the Pit's title accrued: Neesom v. Clarkson, 2 Hare, 163, Form 1, p. 707. Occupation rent will be charged during the same period, and the per- sons who have been in possession are entitled to have all sums expended in repairs and improvements repaid with interest at £4 per cent: Bloomer v. Spittle, 13 Eq. 427; Neesom v. Clarkson, 2 Hare, 163, Form 1, sup. p. 707; and see Stepney v. Biddulph, 5 N. R. 505. COSTS. The costs in these cases must depend on the conduct of the parties; where the mistake is entirely owing to the conduct of the Pit, he must pay all the costs ; where the Deft has been aware of the mistake from the beginning, and refused to correct it, then the costs will be given against him: M. E., in Harris v. Pepperell, 5 Eq. 5; Meadows v. il/., 16 Beav. 401; Colyer r. Clay, 7 Beav. 188; Neesom v. Clarkson, 2 Hare, 163. But where a Deft improperly refuses to correct the mistake no costs will be allowed if the error is due to the fault of the Pit: Bloomer v. Spittle, 13 Eq. 427 ; Harris v. Pepperell, 5 Eq. 1 ; Garrard v. Franckel, 80 Beav. 445 ; Murray v. Parker, 19 Beav. 308. Where no blame attached to any person, the costs of a suit to rectify a settlement were paid out of the corpus of the settled fund: Stock v. Vin- ing, 25 Beav. 235 ; but where a maintenance clause was rectified in the interests of infants the costs were paid out of the income: Tomlinson v. Leigh, 14 W. E. 121. CH. XXIV. S. III. j SUPPRESSED INSTRUMENTS. 713 Section III. — Fraud. I. — SUPPRESSED INSTRUMENTS. Conveyance established though destroyed ly Settlor, and the Estate devised hy his Will. "Declare that the indenture in the pleadings mentioned, dated &c., was on that day duly made and executed by I. deceased, the testator &c., and H. in the pleadings named, and that the said indenture, as appears by the draft from which the same was en- grossed, was in the wtords and Qgures following, that is to say, ' This indenture &c.' {verbatim recital) ; And Declare that the Pit became on the death of E. &c., and is now, seised of and well entitled to the inheritance in fee-simple in possession of the hereditaments comprised in and conveyed by the said indenture, subject to the term of five hundred years, assigned in trust for him by the same inden- ture, and is entitled to hold and enjoy the same accordingly, free from all claims of the Defts, or any of them ; And Let the Deft J., with- in &c., deliver up to the Pit possession of the hereditaments com- prised in and conveyed by the said indenture ; And Let the Defts J. &c., within &c., deliver to the Pit upon oath all title-deeds and other documents of title in their or any of their possession or power relating to the hereditaments, including the draft of the said inden- ture." — Account of rents and profits against J., and directions for payment of what should be certified, and Pit's costs of suit, to be taxed.— iriom v. Z, V.-C. W., 19 Dec. 1860. That the draft may conveniently be set forth in a schedule to the decree, see note to Schofield v. S., Form 1, sup. p. 701. For decree declaring that a number of shares in a company were by a deed of transfer duly transferred by a vendor to, and vested in, the Pit as purchaser thereof on consideration duly paid, and that the Pit was enti- tled to the benefit of such transfer, and that the said deed of transfer was fraudulently cancelled, and that the subsequent transfers of the said shares to the Deft G., and by him to the Deft P., were fraudulently obtained and void, and ought to be set aside and cancelled, and decreeing cancel- lation accordingly; and declaring that the registration of the said shares in the name of the Deft G. was fraudulently obtained, and ought to be cancelled, and that the Fit was entitled to have the said shares registered in his name, see Donaldson v. Gillott, 3 £q. 278. NOTES. "No deed fraudulently obtained can prevail in this Court. No valid instrument which effectually conveys property can lose its effect merely 714 SPECIFIC BELIEF. [PAET IV. by reason of its fraudulent cancellation or destruction:'' V.-C. S. in Donaldson v. Oillott, 3 Eq. 274, 278. Suppression of deeds and instruments is spoliation within the rule omnia prcesumuntur contra spoliatorem, even though committed by an agent: Bowles V. Stewart, 1 Sch. & L. 209, 222 ; but only so as to give the persons entitled under them the same benefit as if they were produced: Saltern v. Melhuish, Amb. 249 ; and see Cookes v. Hellier, 1 Ves. 234 ; Hampden v. H., 3 Bro. P. C. 550. As to suppressed marriage settlements, see Bates v. Heard, 1 Dick. 4; Garland v. Radcliffe, 1 Dick. 11; Eyton v. E., 2 Vem. 380; Sanson v. Rumsey, 2 Vern. 561; voluntary settlements: Hunt v. Matthews, 1 Vern. 405; Dalston v. Coatsworth, 1 P. Wms. 731; bonds: Atkins v. Farr, 1 Atk. 287 ; Kenrick v. Hudson, 4 Bro. P. C. 222. As to alleged mutilation of a register of marriage, see Chetham v. Hoare, 9 Eq. 571. The existence at a former period of the deed or document alleged to be suppressed or destroyed must be proved: Cowper v. C, 2 P. Wms. 720, 750; Coles v. Gibson, 1 Ves. 505. As to secondary evidence of the contents of documents, see Taylor Ev. 397. n. — FORGED INSTRUMENTS. 1. Forged Transfers of Shares set aside. Let the Defts, the Co., cancel the alleged transfer of the £■ stock to the Deft P. in the pleadings mentioned, and the entry of such alleged transfer in their books, and enter the name of the Pit in their books as the owner of such stock, and deliver to the Pit a certificate of the ownership of such stock, and pay to the Pit the dividends accrued and to accrue on such stock, since the date of the said alleged transfer, including the dividends paid to the said Deft P, as in the pleadings mentioned ; but this decree is to be without prejudice to any question between the Defts, either at Law or in Equity. — Johnston v. Parsey, V.-C. J., 9 Eq. 181 ; Johnston V. Benton, V.-C. J., lb., following Cottam v. E. C. By. Co., V.-C. W., IJ. & H. 243. 2. Forged Marriage Certificate — Declaration of Illegitimacy — Payments to supposed Lawful Children to be repaid by the Recipients, or by the Trustees. " Declare that the Defts J. &c. are not lawful children of the Deft K., and were not, nor are entitled to any share or interest under the will of B. deceased, the testatrix &c. ; And Declare that CH. XXIV. S. III.] FORGED INSTRUMENTS. 715 the Defts J. &c., are severally liable to repay to the trust estate the several sums received by them respectively in respect of their sup- posed shares of the proceeds of the sale of the real estate of the testatrix specifically devised by her, together with interest thereon at the rate of £4 per cent per annum from the day of , being the time of the receipt of such sums respectively ; And it appearing that the Deft K. sent to the trustees a forged document purporting to be a certificate of his having been married to the mother of the Defts J. &c. , on the day of , being before the birth of such children, whereas he was married to her on the day of , being after the birth of such children, Declare that the Deft K. is liable to pay to the said trust estate so much of the said respective shares with interest as may not be paid by the Defts J. &c. ; And Declare that the Deft H. and the estate of S. (trustees) are jointly and seA'erally liable to pay to the said trust estate so much of the said respective shares and interest as may not be so paid by the said other Defts or any of them." — Defts to make good the sums paid on 'account of the shares of the testator's estate in the order of liability declared, with an account of the estate of S. (deceased trustee), his executor not admitting assets ; and so as to costs. — &ves V. Hickson, M. E., 30 Beav. 136. NOTES. In the case of forged instruments, whether assurances of land or other- wise, there is jurisdiction in equity to order the forgeries to be delivered up to be cancelled: Lee v. Angas, 7 Ch. 79, n. ; Peake v. Highfield, 1 Russ. 559; Bp. of Winchester v. Fournier, 2 Ves. 446; Jones v. J., 3 Atk. 111. The old form of decree in such cases was that the document be cut, damned, and cancelled: Bp. of Winchester v. Fournier, 2 Ves. 448; Fitton V. E. Macclesfeld, 1 Vern. 292. It seems that forged deeds should not be cancelled by being torn or defaced, but should be kept to be produced on criminal proceedings: Frankland v. Hampden, 1 "Vern. 66. Discovery will not be enforced in a case of forgery or other fraud ren- dering the person against whom the discovery. is sought liable to criminal proceedings: Brownsword v. Edwards, 2 Ves. 246; Glynn v. Houston, 1 Keen, 336; although interrogatories will not be struck out merely as tending to criminate; the proper course in such a case to be taken by the party interrogated being to take the objection by his answer: Fisher v. Oaen, 8 Ch. D. 645. A forged deed being a nullity at law will not affect the legal estate in the subject of conveyance or transfer: Boursot v. Savage, 2 Eq. 134, 140; Tayler v. G. I. P. Ry- Co., 4 D. & J. 559; DavU v. Bank of England, 2 Bing. 393, 402; and therefore a reconveyance or retransfer need not be directed: Johnston v. Benton, 9 Eq. 181, Form 1, sup. p. 714; Cottam v. E. C. Ry. Co., 1 J. & H. 243; and so, too, where a deed is void at law on 716 SPECIFIC RELIEF. [PABT IV, the ground of fraud: Lee v. Angas, 7 Ch. 79, n., Form 1, inf. p. 000; secus, where a deed is not wholly forged, so that it is capable of taking partial effect in law: Boursot v. Savage, 2 Eq. 134. Trustees are bound to see to the genuineness of an authority to receive money from them ; accordingly where trustees of a will paid moneys on the faith of forged certificates, they were ordered to repay so much of the trust funds as should not be recovered from their co-Defts; and the person who knowingly furnished the false certificates was made liable in like manner: Eaves v. Hickson, 31 Beav. 136, Form 2, sup. On the same principle where stock or shares are purported to be trans- ferred by means of a forgery, the company or the bank are liable, as between themselves and the true owner, to replace the stock and the dividends (if any) wrongly paid: Johnston v. Renton, 9 Eq. 181; Sloman V. Bk. of England, 14 Sim. 475; Davis v. Bk. of England, 2 Bing. 393; Ashhy V. Blackwell, Amb. 503, 2 Eden, 299 (Hildyard v. South Sea Co., 2 P. Wms. 76, not being followed) ; at the suit of the persons beneficially entitled, notwithstanding a statutory provision exempting the company from obligation to notice equities: Taylor v. Midland Ry. Co., 28 Beav. 287, 8 H. L. C. 751. But where a bank-was instructed to accept drafts on being handed a clean bill of lading, it was held that the bank was only bound to see that the bill of lading was regular in form and not that it was genuine: Ulster Bk. V. SynoU, I. R. 5 Eq. 595. Where a company have issued share certificates to the transferee under a forged transfer they are estopped from denying his title, and conse- quently are liable to a purchaser from him on the shares being claimed by the true owner: Re Bahia, Sfc. Co., L. R. 3 Q. B. 584. Where a puisne mortgagee was induced to release his mortgage in con- sideration of securities which proved to be forged, it was held that his title as mortgagee was not displaced: Eyre v. Burmester, 10 H. L. C. 90; S. C. 4 D. J. & S. 435. But where a bank in good faith represented to the drawee of a bill of exchange drawn against cargo, that it held a bill of lading for the cargo, and thereupon the drawee accepted the bill of exchange, and subsequently the bill of lading proved to be forged, the acceptor was held to have no claim against the bank: Leather v. Simpson, 11 Eq. 398. Where the Pit has by his conduct rendered the fraud possible, he will not be allowed his costs : Johnston v. Renton, 9 Eq. 181 ; Tayler v. O. I. P. Ry. Co., 4 D. & J. 559; Cottam v. E. C. Ry. Co., IJ. & H. 243; and it was held that in such a case he had no claim for the amount of his costs against the bank whose manager had committed the forgery: Re United Service Co., 6 Ch. 212. Where a deed 4s executed with the subject of conveyance or the name of a party to it in blank, the deed is void: Tayler v. G. 1. P. Ry. Co., 4D. & J. 559; Swan v. ifforlh British Australasian Co., 2 H. & C. 175, S. C. 7 H. & N. 603; Exp. Swan, 7 C. B. N. S. 400; HibUewhUe v. W Marine, 6 M. & W. 200; PigoVs Case, 11 Rep. 28 b; and if the blanks are fraudulently filled up, such filling up amounts to forgery of the whole instrument, and is indictable under 24 & 25 V. o. 98, s. 20; and see Dawson's Case, Teague's Case, 2 East P. C. 980, 981. CH. XXIV. S. III.] TOID INSTRUMENTS. 717 But if the grantor fill up, or assent to, recognize, or act upon the filling up of, the blanks, there may be evidence of redelivery upon which the deed will be held good: Hudson v. Revett, 5 Bing. 368. Where blank transfers of shares in a company, whose articles of asso- ciation required tranfers to be made by instrument in writing, were deposited together with the certificates as security for a deed, and were subsequently filled up by the lender, it was held that he had an implied power to do so, and the transfers, though not deeds, were good as instru- ments in writing: Exp. Sargent, 17 Eq. 273. ni. — VOID INSTRUMENTS. Deed executed under False Representation as to its Contents set aside. [Pit S. mortgaged her interest under a will under a false representation by her solicitor that she was merely signing a document on behaU of her sister who was abroad, and that she would not be liable personally.] "Declake that the indenture dated &c. in the pleadings men- tioned is void ; And Let the same be delivered up to be cancelled ; And Let the Deffe A. &c. pay (to the Pits. S. and H. within, &c.) their costs of this suit, to be taxed, and a sum of £ admitted bj' them to be in their hands on account of rents received by them as in the pleadings mentioned ; And the Pits are to be at liberty to apply at Chambers as to the memorial of the said indenture now on the register of the East Riding of the County of York." — Zee v. Angas, V,-C. S., 15 W. E. 119, 7 Ch. 79, n., aflSrmed W. N. (68) 84. For decree declaring that the execution of four deeds was obtained by the fraudulent contrivance of a solicitor in the pleadings named, and that those deeds were wholly void and ought to be delivered up to be can- celled, and directing cancellation accordingly, and declaring the Pit entitled to the full benefit of a mortgage security and to the possession of the premises comprised therein, see Ogilvie v. Jeaffreson, V.-C. S., 2 GifE. 353. And for decree in like suit, see Vorky v. Cooke, V.-C. S., 2 GifE. 236. Whether in Ogilvie v. Jeaffreson and Vmley v. Cooke it was rightly held that the deeds were void at law, has been questioned : Per James, L. J., in Hunter v. Walters, 7 Ch. 75, 85. For decree declaring a transfer of a non-existent mortgage void, and declaring that the Pit ought to be restored to his rights against a surety who had been released in consideration of it, see Scholefield v. Templer, V.-C. W., Johns. 171, varied L. C. and L. JJ., 4 D. & J. 429. For decree declaring a mortgage deed void as against a surety and those claiming under him, and directing a reconveyance accordingly, see Spaight V. Cowne, V.-C. W., 1 H. & M. 369. 718 SPECIFIC EEUEP. [PART IV. NOTES. Where a person is induced by fraud or imposition, without negligence on his part, to execute a deed of a wholly different description from any which he intended to execute, such a deed is of no more validity than an actual forgery: Foster v. Mackinnon, L. R. 4 C. P. 704; Lee v. Angas, 15 W. R. 115, Form 1, sup.; Vorley v. Cooke, I GifE. 230; Thoroughgood's Case, 2 Rep. 9 b; Pigot's Case, 11 Rep. 27 b; though the person guilty of the fraud is not indictable for forgery : R. v. Collins, 2 M. & Rob. 461 ; R. V. Chadwick, 2 M. & Rob. 465. Where a grantor, though able to do so, has not made himseU aware of the contents of his deed before executing it, it is doubtful if he is not estopped at law by his negligence, as between himself and persons inno- cently accepting an estate under the deed: perMellish, L. J., in Hunter v. Walters, 7 Ch. 75, 87; at least, if his negligence is the proximate cause of the success of the fraud: Swan v. North British Australasian Co., 2 H. & C. 175. In Kennedy v. Green, 3 My. & K. 699, it appears to have been held that the grantor was guilty of negligence, and, therefore, that the deed was voidable only and not void. Where the fraud relates to important provisions in the deed, but is not such as to deceive the parties to it as to its general character, the deed is voidable as against the persons guilty or having notice of the fraud: Spaight v. Cowne, 1 H. & M. 359. Where a person knows that property in which he is interested is being dealt with, and sigfis a deed relating to it on being told "that it is a mere form," he is bound by the deed as against innocent persons, both at Law and in Equity: Hunter v. Walters, 7 Ch. 75. Where a deed is held void on the gi-ound of fraud or imposition, no reconveyance need be directed: Ogilvie v. Jeaffreson, 2 GifE. 381, sup. p. 717 ; secus, where the circumstances are such as to render it voidable only and not void: Spaight v. Cowne, 1 H. & M. 359; Kennedy v. Green, 3 My. & K. 699. As a rule a Fit seeking to have his deed cancelled on these grounds is not entitled to his costs: Ogilvie v. Jeaffreson, 2 Gifi. 382; Vorley v. Cooke, 1 GifE. 237; Spaight v. Cowne, 1 H. & M. 369; Kennedy v. Green, 3 My. & K. 723. rV. — MISREPEESENTATION EXPRESS OR IMPLIED. 1. Money advanced on the Faith of a Misrepresentation refunded. [Deft having previously granted a lease which was still outstanding, professed himself, in answer to an inquiry on behalf of the Pit, able to grant a lease of the same property to a person to whom the Pit was about to advance money on the security of the term to be so granted.] CH. XXIT. S. III.] MISREPBESiaiTATION EXPRESS OR IMPLIED. 719 " The Pit by Ms counsel undertaking, if required so to do, to assign all his interest in the two several leases dated respectively the of in the pleadings mentioned, to and at the reason- able costs of the Deft C. ; Let the Deft C, within (one month) after service of this decree upon him, pay to the Pit S. the sum of £ and interest thereon at the rate of £ per cent per annum, from the of until payment." — Deft to pay Pit's costs of suit. — " And let the Pit thereupon deliver up to the Deft C. the said two leases dated respectively the of , and the inden- ture of mortgage dated the of in the pleadings men- tioned." — iSlim V. Croucher, V.-C. S., 2 GiflF. 37, as varied on appeal by L. C. and L. JJ., 1 D. F. & J. 518. NOTES. MISREPRESENTATIOK GENERALLY. Where a misrepresentation is made and acted upon, and thereby a loss accrues to the person acting upon it, relief may be obtained both at Law and in Equity: Slim v. Croucher, 1 D. F. & J. 518, 523, Form 1, sup. ; Hill V. Lane, 11 Eq. 215; Ramshire v. Bolton, 8 Eq. 294 {Whitmore v. Mackeson, 16 Beav. 126, not being followed) ; Burrowes v. Lock, 10 Ves. 470; per Lord Eldon in Evans v. Bicknell, 6 Ves. 174, 182; Colt v. Wol- taston, 2 P. Wms. 156; Pasley v. Freeman, 3 T. K. 51. The misrepresentation may be either express (suggestio falsi) ; or implied (suppressio vert): Pvlsford v. Richards, 17 Beav. 87, 96; as in cases where an erroneous representation has been allowed to remain uncorrected : Reynell v. Sprye, 1 D. M. & G. 660; British Equitable Co. v. G. W. R. Co., 17 W. R. 43, 61 ; or where there is any obligation not to be silent or to make a full disclosure: Fox v. Mackreth, 1 Lead Cas. Eq. 128; Walker V. Symondg, 3 Sw. 62; 1 Story Eq. Jur. § 207 et seq. ; Kerr on Fraud, p. 52 et seq. It may be fraudulent, though no intention to defraud exist: Hart v. Swaine, 7 Ch. D. 42; for if a person make a representation against his own knowledge, or without any knowledge at all, the scienter is estab- lished, and he cannot afterwards be heard to say that he knew nothing of the truth or falsehood of what he stated: Rawlins v. Wickham, 3 D. & J. 304, 315 ; Evans v. Edmonds, 13 C. B. N. S. 777, 786 ; Reese River Mining Co. V. Smith, L. R. 4 H. L. 64; Hine v. Campion, 7 Ch. D. 344; and see 1 Sm. L. C. 176. The misrepresentation must be of fact: Beattie v. Ld. Ehury, L. R. 7 H. L. 102, 130, 7 Ch. 777; not of law: Eaglesfield v. M. Londonderry, 4 Ch. D. 693; Rashdall v. Ford, 2 Eq. 750; nor of mere matter of opinion i Leylandv. Illingworth, 2 D. F. & J. 253; nor of the private intent of the, person making it: Jordan v. Money, 5 H. L. C. 185; in which case the representation, though it may amount to a promise or contract capable of being enforced, or .be a ground for rescinding a transaction: Re Carew, 7 D. M. & G. 43, 52; does not amount to a misrepresentation fraudulent 720 SPECIFIC RELIEF. [PART IV. at the time 'when it was made: Bold v. Hutchinson, 5 D. M. & G. 558; and see Traill v. Baring, 4 D. J. & S. 318; and, if it merely amounts to a promise to repay money, is not in any case a ground for equitable relief: RamsUre v. Bolton, 8 Eq. 299; Slim v. Croupher, 1 D. F. & J. 524. It must be material: Jennings v. Broughton, 5 D. M. & G. 126; made to, or intended to be relied on by, the person injured: Barry v. Croskey, 2 J. & H. 1; Peek v. Gurney, L. K. 6 H. L. 377, 412; and the proximate cause or a material inducement of the transaction: Smith's Case, 2 Ch. 611; NicoVs Case, 3 D. & J. 422; New Brunswick, S^c. Co. v. Conyheare, 9 H. L. C. 711 ; and therefore the person injured must not have relied on his own investigation of its truth: Attwood v. Small, 6 CI. & F. 232; Clap- hapir. Shillito, 7 Beav. 146, 149; though the mere fact, that he might, if he had inquired, have discovered the untruth, is no defence: Central Ry. Co. of Venezuela v. Kisch, L. B. 2 H. L. 99, 120. Before the Judicature Acta the equity of the person injured was, at his option, to have the misrepresentation made good as far as possible : Slim V. Croucher, 1 D. F. & J. 518; or if made by the other party to the con- tract or dealing, to have the transaction set aside: Rawlins v. Wickham, 3 D. & J. 304; ReyneU v. Sprye, 1 D. M. 8^ G. 660; Pulsford v. Richards, 17 feeav. 95; and see Ld. Clermont v. Tashrugh, 1 J. & W. 112; provided that the parties could be remitted to their former position : Nicol's Case, 3 D. & J. 387, 431; and see Lindsay, Src. Co. v. Hurd, L. R. 5 P. C. 221, 240. At Common Law a contract induced by fraud was voidable at the option of the injured party if the other party could be remitted to his former state: Urquhart v. Macpherson, 3 App. Cas. 831; Clarke y. Dick^ son, E. B. & E. 148; or third parties had not acquired rights under it: Oakes v. Turquand, L. K. 2 H. L. 325; and as to the distinction between the case of a contract induced by fraud and that of mere failure of con- sideration, see Kennedy v. Panama, Ifc. Co., L. R. 2 Q. B. 580, 587. By analogy to the rule at Common Law in the case of actions for de- ceit, indemnity could not be obtained in Equity after the death of a per- son in respect of misrepresentations made by him during life, unless there had been a breach of a fiduciary relation, as in Walshain v. Siainton, 1 D. J. & S. 678; or unless the misrepresentation affected rights or prop' erty in the hands of his representatives, as in Ingram v. Thorp, 7 Hare, 67; and by the same analogy mere non-disclosure of facts was held insuf- ficient to sustain a suit for indemnity unless it amounted to a substantial falsification: 'Peek v. Gurney, L. K. 6 H. L. 377, 393, 403. On the same principle where indemnity was sought in Equity against an agent who had not received profit from a misrepresentation, it was necessary to establish the scienter against him: Henderson v. Lacon, 5 Eq. 249, 262; and see 1 Smith L. C. 175, 176. Since the commencement of the Judicature Acts the rules formerly pre- vailing in Equity will, it is presumed, be followed in all cases of rescission, while actions for indemnity will no longer be distinguishable from the common-law action of deceit: see Craig v. Phillips, 3 Ch. D. 722, 733. Where the misrepresentation is the fraud of an agent, the principal- cannot retain any benefit obtained through it: Western Bank of Scotland V. Addie, L. R. 1 H. L. Sc. 145, 158, 167; Khch v. Central Ry. Co. of Venezuela, 3 D. J. & S. 122, S. C. L. R. 2 H. L. 99; New Brunswick Co. CH. XXIV. S. m.] MISREPRESENTATION EXPRESS OR IMPLIED. 721 V. Conyheare, 9 H. L. C. 711, 725, 749; National Exchange Co. v. Drew, 2 Macq. 103, 125; Henderson v. Lacon, 5 Eq. 249, 261; aud see Bartktt v. Salmon, 6 D. M. & G. 33; and on the question whether an innocent prin- cipal is liable for tort in respect of misrepresentation by his agent, see Weir V. Bell, 3 Ex. D. 238 (C. A.), S. C. 3 Ex. D. 32, nom. Weir v. Bar- nett; Swire v. Francis, 3 App. Gas. 106; Mackay v. Comml. Bk. of New Brunswick, L. R. 5 P. C. 394; Western Bk. of Scotland v. Addie, L. R. 1 H. L. Sc. 145; Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259; Udell V. Atherton, 7 H. & N. 172 ; Cornfoot v. Fowke, 6 M. & W. 358. One agent is not, it seems, responsible for the acts of another agent, unless he makes himself a principal in the fraud: Cargill v. Bower, 10 Ch. D. 502, 514. In cases of rescission the complaint should be put forward at the earliest period: Central Ry. Co. of Venezuela v. Kisch, L. R. 2 H. L. 99, 125; Jennings v. Broughlon, 5 D. M. & G. 139; after discovery of the fraud: Browne v. M'Clintock, L. R. 6 H. L. 456; and semble (in the case of a com- pany) within three months: Heymann v. European Central Ry. Co., 7 Eq. 154; Ogilvie v. Currie, 37 L. J. Ch. 541. In cases where indemnity is sought, the analogy of the Statutes of Limitations will be followed: Peekv. Gurney, h. R. 6 H. L. 381, 402. 2. Purchase completed through Fraud and Misrepresentation set aside. " Declare, that the Pit B. was induced to complete his purchase of the hereditaments &c., in the pleadings mentioned, by the fraudu- lent misrepresentations of the Defts A. and W. ; And Declare, that the several agreements entered into by the Pit for the purchase of the said hereditaments, and carried into effect and completed by him, ought to be rescinded ; And Let the same be (within &c.) delivered up to the Pit B. to be cancelled ; And Let the Deft A. (within &c.) procure the deeds of covenant which were executed bj^ the Pit, to be delivered up to be cancelled" — 1. Account of interest on the pur- chase-money paid by the Pit to the Deft A. after the rate of £4 per cent per annum from the time of payment; 2. Account of money paid by the Pit in respect of auction duty on the sale ; 3. Account of the costs, charges, and expenses, paid and incurred by the Pit in consequence of, and incident to, the purchase ; 4. Account of rents and profits received by the Pit ; — And Let what shall appear to be due on such account of rents and profits be deducted from the said sum of £ , and what shall appear to be due for interest thereon, and the said auction duty, and costs, charges, and expenses ; And Let the balance which shall be certified to be due to the Pit B. be (within &c.) paid to him by the Deft A. ; And Let, upon such payment, the Pit reconvey to the Deft A. the said hereditaments &c. ; — Defts to pay Pit's costs of suit. — Liberty to apply. — £erry V. Armistead, M. E., 2 Keen, 229. 46 722 BPECIPIC BELIEF. [PAET IT. For like decree ■with an inquiry when the Pit quitted possession of the premises in question, and an account of all sums paid, laid out, or ex- pended by the Pit upon repairs, and of all costs, charges, and expenses to which the Pit had been properly put in consequence of or incident to the purchase and conveyance, see Edwards v. M'Leay, 2 Sw. 287. For decree, where an agreement for purchase by a company had been rescinded on the ground of misrepresentation, directing an account of the moneys paid on account of the purchase with interest from the respective days of payment until one month after the date of the certificate, the amount when certified to be paid to the official liquidator of the com- pany, and the Deft to deliver up to the official liquidator such of the bonds of the company, numbered, &c., as were in his custody or power, and to concur with any other persons in the delivery to him of the several bonds in the possession or power of a bank, or of any other persons; and declaring a lien in favor of the Pits upon a fund in court for the amount to be certified, and payment thereof out of the fund in case of default by the Deft, see Aberaman Ironworks v. Wickens, L. C, 4 Ch. 101. For order on further consideration setting aside a purchase of shares, except as to twenty shares which had been re-sold, it appearing that at the date of the commencement of the suit the Pit had in his possession or power all the shares purchased by him of the Deft (except the twenty shares sold) subject only to the right of the company to insist on a for- feiture, see Maturin v. Tredinnick, 4 N. R. 15. NOTES. SUGGESTIO FALSI — VENDOR AND PURCHASER. Agreements for sale have been rescinded on the ground of misrepresen- tation — — of the acreage of the property: Aberaman Ironworks v. Wickens, 4 Ch. 101; — of the position and right of access to it: Stanton v. Tattersall, 1 Sra. &G. 529; — of the ownership of it, the vendors professing to be only agents, and in that capacity guaranteeing perf oi-mauce : Wilson v. Short, 6 Hare, 366; but see Fellowes v. Ld. Gwydyr, 1 Sim. 63, 1 Kuss. & M. 83 ; — by concealment of the existence of a public way: Gibson v. D'Este, 2 Y. & C. C. 542, reversed sub nom. Wilde v. Gibson, i H. L. C. 605; — of the merits of a patented invention, aided by fraudulent experi- ments: Lovell V. Hicks, 2 Y. & C. Ex. 46; — of the value of the property, on the part of a purchaser who was well acquainted with it, while the vendor had never seen it and trusted ■wholly to the purchaser: Hay garth v. Wearing, 12 Eq. 320; — by concealment on the part of the purchaser of the falling into pos- session of a reversion : Turner v. Harvey, Jac. 169. An agreement for sale was not rescinded when an underlease was repre- sented as a lease: Bartlett v. Salmon, 6 D. M. & G-. 33; though in such a case specific performance will not be decreed i Sales have been set aside after the execution of the conveyance and completion of the purchase on the ground of misrepresentation — CH. XXIV. S. III.] MISREPKESENTATION EXPRESS OR IMPLIED. 723 — of the tenure of the property: Hart v. Swaine, 7 Ch. D. 42; — of the ownership of it, the real vendor professing to be agent, and 80 gaining undue credence for his opinion of it: Maturin v. Tredinnick, 2 N. R. 514, S. C. 4 N. R. 15; or professing to have no interest in it with the same object: Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221; — of the uncertainty and difficulty of establishing a title to it in the case of rights under a wiU: Reynell v. Sprye, 1 D. M. & G. 660, 8 Hare, 222; — of the vendor's ability to remove defects in the title, by means of which the engrossment of the conveyance was obtained from the pur- chaser's solicitor, and its execution by him fraudulently procured in his solicitor's absence: Berry v. Amiistead, 2 Keen, 221, Form 2, sup. p. 721; — by concealment of defect in title: Edwards v. M'Leay, G. Cooper, 308, 2 Sw. 287. Where the defects are patent, there can be no relief in respect of sup- pressio veri : Bowles v. Bound, 5 Ves. 588 ; and as to the application of the maxim ca).-eat emptor, where the purchaser or his agents had means of knowledge, and in fact relied on those means, see Aliwood v. Small, 6 CI. & F. 232; and as to the difference between a defence to a suit for specific performance and a suit to rescind an executed conveyance or contract, see per Jjord Cottenham in Vigers v. Pike, 8 CI. & F. 645; Day v. Newman, 2 Cox, 77. It was held that, where a suit was instituted to set aside a conveyance on the ground of personal fraud by the vendor, it was not enough to show suppressio veri on the part of the vendor's agent : Wilde v. Gibson, 1 H. L. C. 605, reversing Gibson v. D'Este, 2 Y. & C. C. 542; but this decision has been questioned: Sugden V. & P. 328; and see Western Bk. of Scotland V. Addie, L. R. 1 H. L. So. 145. Sales induced by misrepresentation being voidable not void, v. sup. p. 720, a reconveyance should be directed in all cases where the convey- ance has been executed: Berry v. Armisiead, 2 Keen, 221; Edwards v. McLean, 2 Sw. 287 ; except in oases where the conveyance, though exe- cuted, was ineffectual to pass any legal estate: Hart v. Swaine, 7 Ch. D. 42. 3. Concealment hy Purchaser in Fiduciary Relation — Pur- chase set aside — Accounts — Payment — Reconveyance — Deeds. " Declake that under the circumstances established in evidence in this cause, and in particular having regard to the youth and the embarrassments of T., the intestate &c., and the duty which the Deft W. the younger had undertaken of advising him with reference to the arrangement of the claims of his creditors, it was not compe- tent to the said Deft to become the purchaser of the intestate's moiety of the estate at in the pleadings mentioned, and of the minerals under the same, without communicating to the intestate 724 SPECIFIC RELIEF. [PABT IV. all the information which the said Deft had acquired with reference to the value of the propertj-, and in paiticular without communicat- ing to the intestate the estimate obtaiaed by the said Deft from C. in the pleadings mentioned ; And Declare that the agreement dated the 5th October, 1859, in the pleadings mentioned ought to be set aside ; and that the conveyances made in pursuance thereof ought to stand only as a security for the monej-s paid by the said Deft, with interest on the mortgages paid oflF, and upon the sums advanced by him upon the security of the written agreements between the intestate and the Defts, dated &c., in the pleadings respectively mentioned, according to the several rates borne by such mortgages and agreements respectively, and as to the remainder of the said moneys with interest at the rate of £4 per cent per annum from the respective times of payment ; And decree the same accordingly." — 1 . Account of all sums paid by the Deft W. the younger on account of the purchase-money payable under the said agreement of the 5th October, 1859, and the conveyances made la pursuance thereof, and what is due to the said Deft in respect of such pay- ments, with interest thereon at the rate of £4 per cent per annum ; 2. Inquiry what mortgages on the estate have been paid off by the said Deft, and what sums were paid by him to the intestate under the agreements of the 6th and 14th September, 1859, respectively, and what is due to him in respect of such payments, with interest thereon at the rate which the said mortgages and agreements respectively carried ; 8. Account of rents received by the said Deft, with wilful default — Amount to be deducted and the balance to be certified — Pit within a limited time to pay to the said Deft the amount certi- fied to be due ; And upon payment the said Deft to reconvey and deliver up the agreement of 5th October, 1859, and the conveyances made in pursuance thereof, and all title-deeds &c. — And Let the bond in the pleadings mentioned to have been given by the Deft "W. the younger to the intestate for the unpaid instalments of the purchase-money under the said agreement to be delivered up to the said Deft for the purpose of enabling the delivery up of such of the said documents as are now deposited with the Bank or the manager thereof." — Pit to be at liberty, after such payment to the said Deft, to apply in the joint names of himself and the said Deft to the Bank for the delivery to the Pit of the deposited docu- ments. — And the Bank to be at liberty to deliver up such documents to the Pit. — Dismiss the suit as against the Deft W. the elder. — Deft W. the younger to pay Pit's costs of suit. — Liberty to apply. — Tate V. WilUamson, Vi-C. W., 1 Eq. 528, affirmed 2 Ch. 55. CH. XXIV. S. in.] MISBEPEESENTATION EXPRESS OR IMPLIED. 725 NOTES. BTJPPRESSIO VERI — FIDUCIARY PURCHASERS. Where the parties to any contract or dealing stand in any relation to each other in which confidence is necessarily reposed by the one party in the other, the person so trusted will not be permitted to obtain any ad- vantage from it, unless he has put himself absolutely at arm's length, and has made full disclosure of all facts within his knowledge material to the contract or dealing: Tate v. Williamson, 2 Ch. 55, 61; Murphy v. O'Shea, 2 J. & L. 422, 425; Loivtherv. L., 13 Ves. 95, 103; Gibson v. Jeyes, 6 Ves. 266, 271 ; Fox v. Mackreih, 1 Lead. Cas. Eq. 123. Thus it has been decided that an agent must disclose his true position as purchaser: Dunne v. English, 18 Eq. 524; Murphy v. O'Shea, 2 J. & L. 422; or that leases had been applied for and rents duly paid: Molony v. Kernan, 2 Dr. & War. 31 ; a managing partner the value of his partner's share: Maddeford v. Auatwick, 1 Sim. 89, 2 My. & K. 279; a trustee his knowledge of the value of the property : Fox v. Mackreth, 1 Lead. Cas. Eq. 123 ; a solicitor the nature and urgency of mortgagees' demands : GMs V. Daniel, 4 Gift. 1 ; so also a relative, called in to advise the vendor as to payment of his debts, was held bound to disclose a valuation he had obtained: Tate v. Williamson, 2 Ch. 55, 1 Eq. 58, Form 3, sup. ; and a purchaser holding documents of title the nature of the title; Summers v. Griffiths, 35 Beav. 27. But a solicitor was held not bound to disclose mere speculative advan- tages of which his client was as well able to judge as himseU: Edwards v, Meyrick, 2 Hare, 60. The cases decided are to be regarded as illustrating, not limiting, the application of the rule, for the Court has been careful not to fetter its jurisdiction in cases of fiduciary relation by defining the precise limits of its exercise: Tate v. Williamson, 2 Ch. 61. The mere fact that the purchaser had been agent to the vendor's brother, was held insuflScient to constitute any fiduciary relation between vendor and purchaser: Hay garth v. Wearing, 12 Eq. 320. And where the parties are in other respects at arm's length, it is not enough for the vendor, even though aged and infirm, to say that he had no professional adviser, in order to bring himself within the application of the rule: Harrison v. Guest, 6 D. M. & G. 424, 8 H. L. C. 481. Where a person, standing in a fiduciary relation to a vendor, purchases from him, the onus is upon the purchaser, apart from any question as to the adequacy or inadequacy of the consideration, of showing that due protection was afforded to the vendor: Harrison v. Guest, 6 D. M. & G. 424, 432; and accordingly, if a solicitor, acting as the vendor's solicitor in hoc re: Edwards v. Meyrick, 2 Hare, 68; Gibson v. Jeyes, 6 Ves. 278; purchases from his client he must prove that the bargain is, speaking generally, as good as could have been obtained from any other purchaser: Pisani V. A. G./or Gibraltar, L. R. 5 P. C. 516; Savery v. King, 5 H. L. C. 655; Holman v. Loynes, 4 D. M. & G. 270; Spencer v. Topham, 22 Beav. 573; Gibson v. Jeyes, 6 Ves. 266, 278; secus, where he is not solicitor in hoc re: Montesquieu y. Sandys, 18 Ves. 302. 726 SPECIFIC EELIEP. [PAET IV. Where there is no fiduciary relation between the parties, mere inade- quacy of consideration is not a ground for rescinding a sale: Harrison y. Guest, 6 D. M. & G. 424, 8 H. L. C. 481 ; but inadequacy of consideration in cases where the vendor had no proper advice, was helpless, or not al- lowed sufficient time to act with caution, has been held sufficient to show that undue advantage has been taken of him, and thus to be a ground for rescission: Clark v. Malpas, 4 D. F. & J. 401; Evans v. Llewellin, 1 Cox, 333 ; or to throw upon the purchaser the onus of proving the fairness of the transaction: Baker v. Monk, 4 D. J. & S. 388; Frees v. Coke, 6 Ch. 645. Cases of fraud are not within the rule of Equity limiting the account of rents and profits, against persons in adverse possession, to the period since the commencement of the suit: Hicks v. Sallitt, 3 D. M. & G. 782, 813; PuUeney v. Warren, 6 Ves. 93 ; and see Nanney v. Williams, 22 Beav. 452. Where a purchase by a solicitor or agent is set aside, it has been held that an account of rents and profits, on the footing of wilful default, ought to be directed, though no special case of neglect or default had been raised on the pleadings: Adams v. Sworder, 2 D. J. & S. 44, 61; Tate v. Williamson, 2 Ch. 55, 1 Eq. 528, Form 3, sup. p. 723. 4. Misrepresentation in Prospectus — Allotment of Shares set aside and Deposit to be refunded — Suit by Shareholder against the Company and Directors. Deglabe that the Pit is entitled to have the contract entered into by him for taking the ten shares in the Defts, the E. I. Co. in the plead- ings mentioned, set aside in respect of the misrepresentation con- tained in the prospectus of the said company on the faith of which he made his application for such shares, such misrepresentation having relation to the amount of shares alleged to have been subscribed for, and also (to) the statement (therein contained) as to the pur- chase of the two several properties of the S. and L. estates, and decree the same accordingly ; And Let the Defts, the E. I. Co. and W. &c. {directors) , pay to the Pit R. the deposit of £ paid by him on the said shares ; And Let the Defts the E. L Co. and W. &c., remove the name of the Pit as a shareholder from the register of shareholders of the said company — {Injunction against proceedings to recover calls.) — Defts to pay Pit's costs of suit. — Liberty to apply. — Hoss v. JEstates Investment Com- pany, V.-C. W., 3 Eq. 122, as varied on appeal, L. C, 3 Ch. 682. For like decree, see Henderson v. Lacon, V.-C. W., 5 Eq. 263. For decree for repayment of moneys paid in respect of shares taken on the faith of misstatements in a prospectus, and for an injunction, sea Kisch V. Central Ry. Co. of Venezuela, L. JJ. , 3 D. J. & S. 122, affirmed L. R. 2 H. L. 99. CH. XXIV. S. III.] MISEEPBESENTATION EXPRESS OR IMPLIED. 727 NOTES. The principle is, that those who issue a prospectus holding out to the public the great advantages which will accrue to persons who will take shares in a proposed undertaking, and inviting them to take shares on the faith of the representations therein contained, are bound to state every- thing with strict and scrupulous accuracy, and not only to abstain from stating as fact that which is not so, but to omit no one fact within their knowledge, the existence of which might in any degree affect the nature, or extent, or quality of the privileges and advantages which the prospectus holds out as inducements to take shares: New Brunswick, Ij-c. Co. v. Mug- geridge, 1 Dr. & Sm. 363, 381; per Lord Chelmsford, in Central Ry. Co. of Venezuela v. Kisch, L. R. 2 H. L. 99, 113; Henderson v. Lacon, 5 Eq. 249, 262. Though some high coloring may be expected and allowed, the public ought to have the same opportunity of forming a judgment as the persons issuing the prospectus themselves possess: Central Ry. Co. of Venezuela v. Kisch, L. R. 2 H. L. 99, 113; S. C. 3 D. J. & S. 122, 135. The misrepresentation must be clearly made out : Hallows v. Fernie, 3 Ch. 467, 476; a mere variation in the language of the memorandum of association from that of the prospectus is not sufficient: secus, if the obli- gations under the two documents are substantially different: Downes v. Ship, L. R. 3 H. L. 343; Stewart's Case, 1 Ch. 574; Webster's Case, 2 Eq. 741 ; and even if the difference is sufficient to enable an allottee to rescind his contract, he will not in such cases be able, in the absence of direct fraud, to make the directors personally liable: Ship v. CroskUl, 10 Eq. 73; Stewart v. Austen, 3 Eq. 299. On the question what misrepresentation was insufficient to avoid a con- tract to take shares, see Hallows v. Fernie, 3 Eq. 520, 3 Ch. 467; Denton V. M'Neil, 2 Eq. 352; Kennedy v. Panama, ^c. Co., L. R. 2 Q. B. 580. An allottee who has applied for .shares on the faith of a misrepresenta- tion is entitled to have the allotment rescinded in a suit for the purpose ; the misrepresentation of the directors or agents being for this purpose held binding on the company: Henderson v. Lacon, 5 Eq. 249, 261. He may also apply under the Company's Act, 1862 (25 & 26 V. c. 89), s. 3.5, for an order removing his name from the register; but in cases where the misrepresentation was denied, and the shares were fully paid up, the Court has required the question to be put in issue in a suit or action: Askew's Case, 9 Ch. 664. Where it is determined, in a suit or on motion under s. 35, that the allotment was not binding, the allottee may, in a suit for the purpose, recover the money paid by him in respect of it from the company, and, on proving scienter, may also obtain indemnity from the directors making the misrepresentation: Askew's Case, 9 Ch. 664; Ross v. Estates Ineestmenl Co., 3 Eq. 122, 3 Ch. 682, Form 4, sup. p. 726. A purchaser of shares in the open market cannot maintain a suit in respect of misrepresentation in the prospectus, the office of which is ex- hausted when the shares are allotted: Peek v. Ourney, L. R. 6 H. L. 377. It seems that a. company, as distinguished from its directors, cannot be 728 SPECIFIC RELIEF. [PABT IV. made liable in an action for deceit: New Brunswick Co. v. Conybeare, 9 H. L. C. 711, 725; We>:tern Bk. of Scotland v. Addie, L. R. 2 H. L. Sc. 145, 158; and see per Cotton, L. J., in Weir v. Bell, 3 Ex. D. 238, 241. Proceedings to rescind an allotment on the ground of misrepresentation must be commenced before the presentation of a winding-up petition: Smith's Case, 2 Ch. 604; S. C. L. R. 4 H. L. 68; Kent v. Freehold Land, Sj-c. Co., 3 Ch. 493; Oakes v. Turquand, L. R. 2 H. L. 325; but a suit commenced before the presentation of the petition is not barred if the winding-up order is made before decree: Henderson v. Lacon, 5 Eq. 249. Rescission must be expressly claimed on the pleadings : Cargill v. Bower, 10 Ch. D. 502. A suit against a company and its directors for rescission and indemnity, commenced in ignorance of a voluntary winding up, was not stayed on the motion of the voluntary liquidator : Hall v. Old Talargoch Co. , 8 Ch. D. 749. When a Pit, in a suit to recover from a company money paid on the faith of misrepresentations in a prospectus, appeared as a contributory on the hearing of a winding-up petition, he was held to have waived any right of rescission in the suit, and leave to amend the pleadings at the hearing by inserting a claim for rescission was accordingly refused: Cargill v. Bower, 26 W. R. 716. Where a person has been a party to a misrepresentation of the objects and business of a company as stated in the memorandum of association, the rule requiring proceedings to be commenced in a reasonable time will not apply as between him and the person complaining: Downes v. Ship, L. R. 3 H. L. 843. 6. Misrepresentation and Oonceahneni hy Promoters — Pur- chase set aside at the Suit of the Company. Eeverse the decree dated &c. , so far as the Pit's bill (action) was thereby dismissed against the Defts E. &c. {promoters), "And Declare that the contract of the day of in the pleadings mentioned is not binding on the Pit company, and ought to be re- scinded and set aside, and delivered up to be cancelled, and de- cree the same accordingly ; And Declare that the Defts E. &c., and the estate of the Defts M. &c. (bankrupts), and the estate of the DeftV. deceased, are jointly and severally liable to repay to the Pit company the sum of £83,250, and the sum of £8,807, the last- mentioned sum being the amount paid by the Pit company to C. in the pleadings named for the purchase of stocks and stores in the island of S. in the pleadings mentioned, and that the said several Defts are also jointly and severally liable to the Pit company for the 2,675 shares in the Pit company, and the bonus warrants issued therewith to J. M. on the 6th day of Oct. 1871, as in the pleadings mentioned ; And Let the Defts E. &c., or some or one of them, within days after service hereof, pay to the Pit company the said sums of £83,250 and £8,807, making together £92,057, with CH. XXIV. S. III.J MISREPRESENTATION EXPRESS OR IMPLIED. 729 interest at the rate of £4 per cent per annum on £80,000, part of the said sum of £83,250, from the 2d day of Nov. 1871 (date of Jir St payment), and on the sum of £32,050, the residue of the said sum of £83,250, from the 6th Feb. 1872 (date of subsequent pay' ment), and on the said sum of £8,807 from 27th Nov. 1871 (date of further payment)." — Liberty to Pit company to carry in a proof in respect of the said sums with such interest thereon as aforesaid against the estate of Defts M. &c. ; — "And Let the foRowing &c. : 1. An inquiry which of the said 2,675 shares and the bonus warrants issued therewith to the said J. M. on the 6th of Oct. 1871, as in the pleadings mentioned, were transferred to and are still standing in the names of the Defts E. &c., or any one or more of them, or of any person or persons in trust for them, or any one or more of them. 2. An account of the proceeds of the sale of such of the said 2,675 shares and bonus warrants as have been parted or dealt with by the Defts E. &e., or by any one or more of them, and of the dates of such sales respectively; And Let the Defts E. &c., and Deft P., as trustee of the estate of the said Defts M. &c., and the Deft E. V. as executrix of the will of the said V. deceased, within one month after the date of the Chief Clerk's certificate, transfer, or cause to be transferred to the Pit companj', or as they shall direct, such of the said 2,675 shares and bonus warrants issued therewith as shall have been transferred to, and have since remained, and are now standing in, the names of the Defts E. &c., or any one or more of them, or of any person or persons in trust for them, or any one or more of them ; And Let the Defts E. &c., or some or one of them, within one month after the date of the said certificate, pay to the Pit company what shall be certified to be the amount of the proceeds of the said shares parted or dealt with by the Defts E. &c., or anyone or more of them, or bj- any person or persons in trust for them, or any one or more of them, together with interest on such proceeds at the rate of £4 per cent per annum from the respective dates of the same having been received." — Liberty to Pit company to carry in a proof for the amount of the proceeds of such shares, with such in- terest thereon as aforesaid against the estate of the Defts M. &c. — "And Declare that the Pit company are entitled to be paid the said sums of £83,250 and £8,807 and interest thereon as aforesaid, together with the amount of such proceeds of the sale of the said shares, with such interest thereon as aforesaid out of the estate of the said V. and the costs, to be taxed by the Taxing Master, of and relating to the inquiries numbered 4, 5, 6, 7, and 8 (adminiS' tration accounts and inquiries), hereby directed, in a due course of administration; And Declare that the Defts E. &c., and the Deft P. out of the estate of the Defts M. &c., and the Deft E. V. 730 SPECIFIC RELIEF. [PABT IT. out of the estate of the said V. in a due course of administration, are jointly and severally liable to pay to the Pit company the costs of this suit including the costs of the inquiries Nos. 1, 2, and 3, hereby directed, and the costs of this appeal, and as to the Deft E., including the costs of the cross suit of &c., to be taxed, &c. ; And Let the Defts E. &c., or some or one of them, pay to the Pit company the amount of such costs when taxed." — Libertj' to the Pit company to carry in a proof for the amount of such costs, other than the costs of the said cross suit, against the estate of the Defts M. &c. ; — "And Let, 3, an account be taken of the profits, if any, made by the Pit company from the working of the said island of S., from the of , the day on which the Pit company took possession thereof, and in taking such account all just allow- ances are to be made to the Pit company for the expenses of and relating to such working and the realization of the produce thereof; And Let the Pit company upon receiving payment of said sums of £83,250 and £8,807, with such interest thereon respectively as aforesaid, and upon receiving payment of the amount of the pro- ceeds of the sale of the shares parted or dealt with as aforesaid and interest thereon, and of the aforesaid costs, deliver up the said contract dated, &c. and the lease and possession of the said island of S., and the stores and stock thereon, and any documents relating thereto in possession of the said Pit companj', and pay (to the Defts) the amount of such profits, if any" — Deft E. V., the executrix of the said V., by her counsel not admitting assets of the said V., usual administration accounts of his personal and real estate. — Adjourn &c. — Bill dismissed with costs as against the Defts D. and W. — The JSTew Sombrero Phosphate Com- pany V. M-langer, C. A., 5 Ch. D. 73, affirmed in H. L., 3 App. Cas. 1218. The estate of the deceased Deft was declared liable on the ground that he was a partner with the other members of the syndicate of promoters. NOTES. " A promoter is in a fiduciary relation to the company which he pro- motes or causes to come into being. If that promoter has a property which he desires to sell to the company, it is quite open to him to do so; but upon him, as upon any other person in a fiduciary position, it is in- cumbent to make full and fair disclosure of his interest and position with respect to that property: " Per James, L. J., in New Sombrero Phosphate Co. V. Erlanger, 5 Ch. D. 73, 118, Form 4, sup. ; Bagnall v. Carlton, 6 Ch. D. 371 ; and see Craig v. PhUlips, 3 Ch. D. 722. In default of such full disclosure, the company are entitled to a rescis- sion of any contract entered into without it: New Sombrero Co. v. Erlan- ger, 5 Ch. D. 73; Bagnall v. Carlton, 6 Ch. D. 371; and to recover from CH. XXIV. S. ly.] ILLICIT DEALINGS BY AGENTS. 731 the promoters, and from all persons who have acted -with them, the whole benefit which has been obtained without the sanction of their principals: Bagrudl v. Carlton, 6 Ch. D. 371; Phosphate Sewage Co. v. Hartmont, 5 Ch. D. 391 ; and a suit for the latter purpose may be maintained after a compromise with the actual vendors: Bagnall v. Carlton, sup. ; and see Note inf. A company will be bound by laches, but it seems that a longer period of delay will be permitted in such a case than in that of a private person: New Sombrero Phosphate Co. v. Erlanger, 5 Ch. D. 73, 117; and see S. C. 3 App. Cas. 1218. By the Companies Act, 18G7 (30 & 31 V. c. 131), s. 38, every prospectus of a company, and every notice inviting persons to subscribe for shares in any joint-stock company, shall specify the dates and the names of the parties to any contract, entered into by the company, or the promoters, directors, or trustees thereof, before the issue of such prospectus or notice, whether subject to adoption by the directors of the company or otherwise; and any prospectus or notice not specifying the same shall be deemed fraudulent on the part of the promoters, directors, and officers of the company knowingly issuing the same, as regai-ds any person taking shares in the company on the faith of such prospectus unless he shall have had notice of such contract. The section is applicable only for the protection of shareholders, not of bondholders : Cornell v. Hay, L. R. 8 C. P. 328 ; and even in the case of shareholders gives no right of proceeding by action or otherwise against the company: Gover's Case, 1 Ch. D. 182, 20 Eq. 114. It does not impose any obligation on a mere vendor to the company to disclose what he gave for the property: Craig v. Phillips, 3 Ch. D. 722; per Lord Coleridge, C. J., in Twycross v. Grant, 2 C. P. D. 469, 488; even though he becomes a promoter subsequently to his purchase : C. A. (diss. Brett, J.), in Cover's Case, 1 Ch. D. 182. On the question what contracts are within the purview of this section, see the judgments in Twycross v. Grant, 2 C. P. D. 469, and Cover's Case, 1 Ch. D. 182. On the question what constitutes a promoter, see Bagnall v. Carlton, 5 Ch. D. 371, 381. Section IV. — Inequitable and Illegal Transactions. I. — ILLICIT DEALINGS BT AGENTS. 1. Secret Profits to be refunded hy Directors. Let the Defts C. and K., on or before the day of , pay to the liquidators of the I. M. C. Association, the sum of £11,236, retained by the Defts by way of profit out of the sum of £164,655, paid by the said Association to the Defts on account of the C By. Co. , as in the pleadings mentioned, with interest on the said t32 SPECIFIC tlBLlEF'. [PAET IV. sum at the fate of £4 per cent pet annum from &o. until tlie day of payment ; And Declare that the Pits are entitled to the benefit of whatever is recoverable by the Defts from the estate of P. or other- wise, in respect of the £6,320 to be paid to the Defts as additional commission on the issue of debentures of the said railway company as in the pleadings mentioned ; And Let the Defts C. and K. execute to the Pits, or as they shall direct, a proper assignment of the said £6,320, such assignment to be settled by the Judge in case the parties differ. — Defts to pay Pits' costs of suit. — No costs of ap- peal. — Imperial Mercantile Credit Association \. Ooleman, Y.-C. M., 26 March, 1870, 6 Ch. 562, n., as varied on appeal, Lords' Journals, 9 May, 1873, L. E. 6 H. L. 189, 211. i"or decree declaring the Defts trustees for the N. Bank of aU moneys •which they had respectively received by way of profit from the sale or dis- position of any of — - shares, and that they were respectively liable to account to the bank for all such moneys and interest at £4 per cent; de-* claring the Defts respectively trustees of any bonus shares issued to them, or their nominees, in respect of the said shares ; directing an inquiry whether the Deft M. had any, and what, beneficial interest in shares com' prised in the bought and sold notes in the pleadings mentioned, and de- claring him a trustee for the bank of all profits received by him from such interest, if any, and interest; and directing accounts and inquiries accordingly, with special directions as to costs, see Parker v. M'KennOf L. C. and L. JJ., 14 Dec. 1874, 10 Ch. 96, varying decree of V.-C. B,, i Aug. 1874, 10 Ch. 107, n. 2. Contract set aside for Surreptitious Dealings between one Principal, and the Agent for the other. [Deft company entered into a contract with Pit company to make a Sub- marine cable, to be paid for by instalments on the certificates of B., the Pit company's engineer, to whom the Pit company was to pay one and a half per cent commission for his services. The Deft company thereupon sub-let the contract to B. The first instalment and the commission on it were paid before the discovery of the sub-contract.] ''DeClake that tinder the cirftumstanees in the pleadings appear- ing, the agreement dated the day of in the pleadings men- tioned between the Pit company and the Deft company ought to be set aside and be delivered up to be cancelled ; And Let the said agreement be (within &c.) delivered up to the Pits the P. Co. to be cancelled accordingly ; And Let the Defts the I. Co. on or before &c. pay to the Pits the P. Co. the sum of £ , being the sum of £ — — (^m instalment) in the pleadings mentioned^ and the sum of £ for Interest thereon at the rate of £4 per cent per annum ttom the day of {date of receipt) to the said day CH. XXIV. S. IV.] ILLICIT DEALINGS BY AGENTS. 733 of (date for payment) ; And Let the Deft B. on or before the day of pay to the Pits the P. Co. the sum of £ , being the sum of £ paid to him as commission in respect of the said sum of £ {first instalment), and the sum of £ for interest thereon from the said day of to the said day of {same period)" — Defts the I. Co. and B. to pay Pits' costs. — Panama & South Pacific Telegraph Company v. India Jtubber, Gutta Percha, & Telegraph Works Company, V.-C. M,, 24 March, 1875 ; as varied on appeal, L. JJ., 27 April, 1875, 10 Ch. 515, 534. The usual words declaring the contract invalid and not binding on the Pit were, on the hearing of the appeal, directed to be omitted from the decree: S. C. 10 Ch. 5^. NOTES. No agent can in the course of his agency derive any benefit whatever without the sanction or knowledge of his principal: Hay's Case, 10 Ch. 693; Fawcett v. Whitehouse, 1 Buss. & M. 132; Hichens v. Congreve, 1 Russ. & M. 150 ; Beck v. Kantorowicz, 3 E. & J. 230 ; Eip. Williams, 2 Eq. 216. No man acting as an agent can be allowed to put himself in a position where his interest and his duty will be in conflict: Parker v. McKenna, 10 Ch. 93; Benson v. Heathorn, 1 Y. & C. C. 126. It is the duty of directors of companies or agents, and especially solici- tors, to use their best exertions for the benefit of those whose interests are committed to their charge, and they are bound to disregard their own private interests whenever a regard to them conflicts with the proper dis- charge of such duty: Imperial Mercantile Credit Association v. Coleman, 6 Ch. 562, n.; S. C. L. K. 6 H. L. 189; Tyrrell v. Bk. of London, 10 H. L. C. 26; and see Albion Co. v. Martin, 1 Ch. D. 580. Upon these principles, where directors sold property to their company at a profit, and received part payment in debentures, it was held that an- other director buying these debentures had notice of the fraud, and could not prove in respect of them in the liquidation: Exp. Larking, 4 Ch. D. 566; and where an agent for purchase sold his own shares to his principal at a profit, he was held accountable: Kimber v. Barber, 8 Ch. 56; and see Chesterfield, Ifc. Co. v. Black, 26 W. E. 207. Where a director receives his " qualification " from promoters out of fully paid up " vendors' " shares, he may be made liable for misfeasance by summary process under the Companies Act, 1862 (25 & 26 V. c. 89), s. 165: Re Englefield Colliery Co., 8 Ch. D. 388; -De Ruvigne's Case, 5 Ch. D. 306; or in an action: per "V.-C. M. in Phosphate Sewage Co. v. Hartmont, 5 Ch. D. 394, 442; for the highest value of the shares: McKay's Case, 2 Ch. D. 1; Nantyglo Blaina Co. v. Grave, 26 W. E. 504; and therefore usually for their nominal value: Pearson's Case, 5 Ch. D. 336; but he cannot be treated as a contributory in respect of such shares: De Ruvigne's Case, 5 Ch. D. 306; CarUng's Case, 1 Ch. D. 115; and the 734 SPECIFIC BELIEF. [PAET IV. same rules apply in the case of a transfer of " vendor's " shares to an agent for purchase on behalf of the company: McKay'' s Case, 2 Ch. D. 1. But where promotsrs paid a director out of the purchase-money of prop- erty sold to the company the money required to purchase his qualification, he was made liable as a contributory for the full amount of the shares: Hay's Case, 10 Ch. 593. On the same principles a sun-eptitious sub-contract with an agent, at least if it makes an essential difference in the performance of the original contract, is a ground for setting aside the contract, though the sub-con- tract be an entirely separate and subsequent transaction: Panama, Ifc. Co. V. India-rubber, Sfc. Co., 10 Ch. 515, Form 2, sup. Where there has been fraud or misfeasance on the part of the Deft, or misappropriation or misuse of trust funds, interest will be charged at £5 per cent; in all other cases at £4 per cent only: Imperial Mercantile Credit Association v. Coleman, L. K. 6 H. L. 189, 209. n. — UNDUE INFLtlENCE. 1. G-ifts to alleged Spiritual Medium set aside — Account and Special Directions. "Declare that the gift by the Pit to the Deft H., alias L., of the sum of £24,000 cash (being the net proceeds of the sale of £26,966 Cons. £3 per cent Anns sold by or for the Pit on the 11th of Octo- ber, 1866) in the pleadings mentioned, and the transfers by the Pit into the name of the said Deft H. of the several sums of £6,798 and £2,290 Cons. £3 per cent Anns on the 10th of December, 1866, and the 21st of Februarj-, 1867, respective!}', and the assignment of the 19th of January, 1867, to the Deft W. (trustee) of the mortgage debt of £30,000 secured by the indenture dated &c., and the secu- rities for the same in the pleadings mentioned, and the declaration of trust of the 19th of January, 1867, in favor of the said Deft H. in the pleadings also mentioned, were obtained by the said Deft H. from the Pit by undue means, and are fraudulent and void, and not binding on the Pit; And it appearing (by the evidence in this cause) that the said sum of £24,000 cash was afterwards invested in the purchase of the sum of £27,566 New £3 per cent Anns in the name of the said Deft H. and that such last-mentioned Anns were afterwards sold," and the proceeds thereof invested in the purchase of the sum of £26,756 £3 per cent Cons. Anns in the name of the said Deft H., making together with the said sum of £6,798 and £2,290 like Anns, the sum of £35,846 like Anns ; And it also appearing that the said Deft subsequently sold out a portion of the said sum of £35,846 like Anns, that is to say, a sum of £3,755 like Anns, and that the proceeds thereof, amounting to a sum of CH. XXIV. S. IV.] UNDUE INFLUENCE. 736 £3,403 cash, were received by the Pit, and that the said Deft also sold a further portion of the said sum of £35,846 like Anns, that is to say, a sum of £441 like Anns, and received the proceeds thereof amounting to £400 cash, and that the said Deft also sold a further portion of the said sum of £35,846 like Anns, that is to say, £21,947 like Anns, and received the proceeds thereof and invested the same on the security of a mortgage dated &c., and an indenture dated &c., and that a sum of £9,703 like Anns, being the balance or residue of the said sum of £35,846 like Anns, is now standing in the name of the said Deft 11. in the books of the Bank of England ; Let the said Deft H., within &c. after service of this order, execute and procure the execution by all other necessary parties of a conveyance or assignment and transfer of the said mortgage debt of £20,000 secured by the said indentures dated the 16th of March, 1867, and the 15th of April, 1867, and of the interest due and to accrue due thereon, and of all securities for the same, to the Pit L., or as she shall direct, such conveyance or assignment and transfer to be settled by the Judge, in case the parties diflPer &c. ; And Let the said Deft H. on or before &c., transfer to the Pit L. the sum of £9,703 Cons. £3 per cent Anns, and within the like period execute to the Pit at her expense a power of attorney to enable her to receive the dividends on the said sum of £9,703 Cons. £3 per cent Anns, which acci'ued due on &c. ; And for the purpose of enabling such transfer to be made the Pit is to remove the writs of distringas on the same dated &c." — Injunc- tion to restrain the Bank of England from permitting any transfer of the said £9,703 Cons. £3 per cent Anns standing in the name of the Deft H. except to the Pit L. — " And Let an account be taken of what is due from the Deft H. to the Pit in respect of the several gifts, transfers, and assignments hereinbefore declared to be fraudu- lent and void, giving to the said Deft credit for the said sum of £3,755 Cons. £3 per cent Anns at the market price of the day on which the same were sold by the said Deft for the use of the Pit as herein- before mentioned, and for the said sum of £9,703 like Anns at the market price of such Anns, on the day of , being the day on which the aforesaid sum of £26,756 like Anns was, as appears by paragraph 6 of the (answer) of the Deft H. purchased in his name, and also for the said sum of £20,000 invested by him on mortgage as aforesaid ; And Let the Deft H. pay to the Pit L. the balance which shall be certified to be due from him to her on such account within &c. after the date of the Chief Clerk's certificate ; And Let the Deft W., within fourteen days after tender to him of the same for that purpose, execute a conveyance or assignment and transfer of the said mortgage debt of £30,000 secured by the said indenture dated &c., and assigned to him by the indenture dated the 19th of 736 SPECIFIC EEUBP. [PART IV. January, 1867, upon the trusts (Jeclared by the deed of the same date, and of the interest due and to accrue due thereon, and of all securities for the same, to the Pit L. or as she shall direct, such conveyance or assignment and transfer to be settled &c. ; And Let all deeds and documents deposited with the Clerk of Records and Writs, under the order dated &c., be delivered out to the Pit, ■who is to be at liberty to cancel the said declaration of trust dated the 19th of January, 1867, respecting the said sum of £30,000 secured by the said indenture of mortgage dated &c. ; — Tax the costs of the Deft W., including the costs of the conveyance or assignment and transfer hereinbefore directed to be executed by him ; And Let, upon the execution by the said Deft of such last- mentioned conveyance or assignment and transfer, the Pit L. pay such costs to the said Deft W." — Liberty to apply. — Jjyony, Mome, V,-C. G., 6 Eq. 655. For declaration that bonds executed at the instance of her step-father were improperly obtained from the Pit, and were, as against her, fraudu- lent and void, with decree for cancellation, see Kempsoff v. Ashbee, V.-C. B., 22 W. R. 871, affirmed 10 Ch. 15. NOTES. The relief given by Equity in oases of this kind " depends upon a gen-' eral principle applying to all the variety of relations in which dominion may be exercised by one person over another: " Dent v. Bennett, 4 My. & Q. 269, 277 ; Huguenin v. Baseley, 2 Lead. Cas. Eq. 547. Where any person obtains a large pecuniary benefit from another, it is incumbent on him to show that the transaction was righteous, i. e. that the donor voluntarily and deliberately performed the act: Cooke v. Lamotte, 15 Beav. 234; Hoghton v. H,, 15 Beav. 278; Blackie v. Clark, 15 Beav. 600; Anderson v. Elsworth, 3 Gifi. 154; but where undue influence exists, the question is not whether the donor knew what he was doing, but how the intent was produced: Huguenin v. Baseley, 2 Lead. Cas. Eq. 547, 589; Hoghton v. H., 15 Beav. 299. The undue influence may be exerted by a mere stranger, but in this case its existence must be proved by evidence: Lyon v. Home, 6 Eq. 655, Eorm 1, sup.; Smith v. Kay, 7 H. L. C. 751, 779; Hunter v. Atkins, 3 My. & K. 113, 140 ; and in such cases the nature of the benefit, or the age, capacity, or health of the donor, are considerations of great impor- tance: Rhodes V. Bate, 1 Ch. 257; Baker v. Monk, 4 D. J. & S. 388; Clark V. Malpas, 4 D. F. & J. 401. In particular, a transaction will not be allowed to stand which is tainted with coercion: Ellis v. Barker, 7 Ch. 104; or with duress, or the fear of criminal prosecution, or of " disgrace which may be inflicted on the dearest object of a man's natural afEection, at the instance of the per- son to whose power he yields: " Bayley v. Williams, 4 GifE. 638, 661, L. R. I H. L- 200; Bnyse v. Messborough, 6 H. L. C. 2, 49; 1 Story Eq. Jur. CH. XXIV. S. IV.] UNDUE INFLUENCE. 737 § 239 ; bnt the rule was held not to apply in the case of an agreement to compromise a prosecution for misdemeanor', which might have been the subject of a civil remedy: Fisher §• Co. v. Apollinaris Co., 10 Ch. 297. Persons standing in a confidential relation towards others cannot entitle themselves to hold benefits conferred on them by those others, unless they can show to the satisfaction of the Court that the persons by whom the benefits have been conferred had competent and independent advice in conferring them: Bhodes v. Bate, 1 Ch. 252; for in such cases the proba- bility of undue influence is inferred: HogMon v. H., 15 Beav. 299. This principle applies to the relation between children before complete emancipation and parents or persons in loco parentis : Archer v. Hudson, 7 Beav. 551; Baker v. Bradley, 7 D. M. & G. 597; Savery v. King, 5 H. L. C. 627; Chambers v. Crahbe, 34 Beav. 457; Bury v. Oppenheim, 26 Beav. 594; e. g. guardians: Maitlandy. Backhouse, 16 Sim. 58; Hatch v. H., 9 Ves. 292; or step-father, where the step-daughter lived in his house: Kempson v. Ashbee, 10 Ch. 15; Espeyv. Lake, 10 Hare, 260; in cases of bounty conferred, not of mere family arrangement or resettlement: Tur- ner V. Collins, 7 Ch. 339; Jenner v. J., 2 D. F. & J. 359; Hoghton v. H., 15 Beav. 302 ; Dimsdale v. D., 3 Drew. 556; and not when the child is of such an age as presumably to be a perfectly free agent, i. e. in ordinary, cases after the expiration of a year from majority : Smith, v. Kay, 7 H. L. C. 772; though if parental dominion continues longer the exercise of influence will be presumed to continue also : Wright v. Vanderplank, 8 D. M. & G. 146, 147; Maitland v. Backhouse, 16 Sim. 58; semble, even when the child is twenty-seven years of age : Potts v. Surr, 34 Beav. 543, 552. The principle has also been held to apply to the relations between a lady and her intended husband: Cobbett v. Brock, 20 Beav. 524; a sister- in-law and her brother-in-law and professional adviser: Rhodes v. Bate, 1 Ch. 252; client and solicitor: Gibson v. Jeyes, 6 Ves. 266; and see Notes to Form 2; principal and confidential agent: Moxon v. Payne, 8 Ch. 881; Hunter -v. Atkins, 3 My. & K. 113; c. q. tr. and trustee: Barrett v. Hartley, 2 Eq. 789 ; Thornber v. Sheard, 12 Beav. 589 ; Grosvenor v. Sher- ratt, 28 Beav. 659 ; patient and medical attendant : Dent v. Bennett, 4 My. & C. 269; Billage v. Southee, 9 Hare, 534; religious enthusiast and spiiit- nal director: Nottage v. Prince, 2 GifE. 246; Huguenin v. Baseley, 2 L. C. Eq. 547 (secus, in the case of a will: Parjitt v. Lawless, L. R. 2 P. & M. 462); officer and subaltern just of age: Lloyd v. Clark, 6 Beav. 309; widower and deceased wife's sister, with whom he had gone through the ceremony of marriage: Coulson v. Allison, 2 D. F. & J. 521. Creditors taking securities with notice of actual or presumed undue influence are affected by all the equities attaching to them : Kempson v. Ashbee, 10 Ch. 15 ; Berdoe v. Dawson, 34 Beav. 603 ; and must see that the person exposed to the influence has proper professional assistance: CobbeU V. Brock, 20 Beav. 524. As a rule, gifts obtained by undue influence should be impeached immediately on the cessation of the influence: Turner v. Collins, 7 Ch. 329, 341 ; except in the case of securities given to creditors who are not pressing for payment: Kempson v. Ashbee, 10 Ch. 15; and such gifts may be confirmed by acquiescence: WrigM v. Vanderplank, 8 D. M. & G. 133, 2 K. & J. 1. 47 738 BPBCIPIO EEUEP. [PABT IT. 2. Release of Deits given hy Client ta Solicitor set aside. [Testator being a man of large fortune, without, near relations, and on intimate terms with the Deft M., his confidential solicitor and one of his executors, executed three releases of debts owing to him by the Deft M. Pits were the co-executors and the beneficiaries under the wiU.} "Declake, that the releases dated &c., are void; And Let the same be (within &c.) delivered up (to the Pits P. and W.) to be cancelled ; And Let the Deft M. on or before the of pay- to the Pits P. and W. {eo- executors) the sum of £ , being the total amount of the debts or sums of £ &c., in respect of which the said releases were respectively given by the testator H. to the Deft M., with interest thereon from (the day of ), the last day of payment of interest by the Deft M. until payment of the said sum of £ as aforesaid." — Deft to pay Pits' costs of setting aside, releases. — Usual administration decree of real and personal estate. —Morgans. Minett, V.-C. B., 6 Ch. D. 638. NOTES. , There is no role of this Court that a solicitor cannot purchase- his client's property if the solicitor shows that the transaction was fair and clear: Gresley v. Momley, 1 GifE. 450; but there is a rule making- abso- lutely invalid gifts conferred by a client on a solicitor while the relation subsists between them: Tomson v. Judge, 3 Drew. 300; Morgan y. Mmett, 6 Ch. D. 638, Form 2, sup. ; or even after its termination, so long as the influence arising from it subsists: Per Turner, L. J., in Holmanv. Loynes, 4 D. M. & Gr. 270, 283; Re Holmes' Estate, 3 GifE. 337; Woody. Downesy 18 Ves. 127; Lady Ormonde v. Hutchinson, 13 "Ves. 47, 52; Welles v. Middleton, 1 Cox, 112; and the relation must be wholly at an end before any gift can be made: Morgan v. Minett, 6 Ch. D. 638, Form 2, sup.; Montesquieu v. Sandys, 18 Ves. 302, 312; Oldham v. Hand, 2 Ves. 259. The decision in Harris v. Tremenheere, 15 Ves. 34, appears to have pro- ceeded, partly on the ground that some of the gifts impeached were made in consideration of marriage, partly on the ground that the. Deft was the agent or steward of the testator in the cause, and, so far as it conflicts with the rule stated above, has not been followed: V.-C. B., in Morgaia v. Minett, 6 Ch. D. 645; Tomson v. Judge, 3 Drew. 306, 316. The distinction taken in cases where the solicitor was not solicitor in h&c re applies to transactions of purchase, not of gift: Montesquieu v. Sandys, 18 Ves. 313. The rule will not be applied with the same strictness to benefits con- ferred by will: Hindson v. WexitherUl, 5 D. M. & G. 301; Raworth v. Marrvote,. 1 My. «e K. 643; Paine y. Hall, 18 Ves. 475i In setting aside such gifts, laches, or ratification after the relation haa ceased, is very material: Oldham v. Hand, 2 Ves. 259. CH. XXIT. 8. ly.] UNCONSCIONABLE BARGAINS. 739 m. — TTNCONSCIONABLE BAKGAINS. 1. Dealings with Expectant Heir set aside. The Pit by his coansel consenting that the securities in the pleadings mentioned, including the warrant of attorney, dated &c., for £ , shall stand as a security for the sums actually paid or advanced by the Defts to or for the use of the Pit, or by his order, with interest thereon, from the date of such payments or advances, at the rate of £5 per cent per annum. Let the following &c. : 1. An account of all sums so paid or advanced by the Deft to or for the use of the Pit, or by his order, with interest thereon from the date of such payments or advances at the rate of £5 per cent per annum ; 2. An account of all sums paid by the Pit to the Deft on account of such payments or advances, or for or on account of interest thereon ; And Let what shall appear to be due on the secondly-mentioned account be deducted from what shall appear to be due on the first- mentioned account, and Let the balance be certified ; And Let, npod payment by the Pit to the Deft of the amount of the balance so certified, the Deft deliver to the Pit upon oath all securities in his possession or power relating to the matters in question in this cause, except the said warrant of attorney, dated the of for£ , alleged to be in the possession or power of J., and, at the expense of the Pit, enter up satisfaction upon the judgment signed in {now the Q. B. Division &c.) on the of as in the plead- ings mentioned ; And Let, in default of payment by the Pit to the Deft of any balance which shall be certified to be due on taking the said accounts, within six months after the date of the Chief Clerk's certificate, the Pits' bill (action) stand dismissed out of this Court with costs. — No other order as to costs up to the hearing. — Adjourn further consideration, and any question as to subsequent costs. — Liberty to apply. — Crofi v. Graham, V.-C, S., 5 Giff. 1, as varied on appeal L. 33., 2 D. J. & S. 155. For like decree see Wyatt v. Cooke, V.-C. S., 16 W. R. 502. 2. The Like — Premiums on Policy of Assurance to he repaid and Policy assigned. " Declare that the bills of exchange and notes now in the hands of the Deft M. in the pleadings mentioned, and also the policy of assurance therein also mentioned, ought to stand as a security only for what, if anything, remains due in respect of the sums actually advanced by the Deft M.: to the Pit, together with interest thereoa, 740 SPECIFIC RELIEF. [PAET IV. or on so much thereof as now remains unpaid, at the rate of £5 per cent per annum, from the time of such advances respectively, to the day of , the day of the payment of the sum of & to the Deft M., as directed by the order dated &c., with subse- quent interest at the rate aforesaid, on such part, if any, of the said advances as now remains unpaid, and for the premiums, if any, paid by Defts or either of them in respect of the said policy of assur- ance ; And the Pit by his counsel submitting to pay the amount that shall be certified to be due from him on taking the account hereinafter directed, Let an account be taken of what, if anything, now remains due in respect of all moneys actually advanced by the Deft M. to or for the use of the Pit, and for interest thereon at the rate of £5 per cent per annum from the date of such advances to the day of payment of the said sum of £ , with subsequent interest at the rate aforesaid, on such part, if any, of the said advances as now remains impaid, and of what, if anything, has been paid for premiums on the said policy of assurance ; And Let, upon payment of the total amount certified to be due from the Pit to the Deft M., the Deft M. deliver up to be cancelled all bills of exchange and notes in the possession of the said Deft, upon which the Pit is liable as in the pleadings mentioned, and assign the said policy of assurance to the Pit, or as he shall direct. — (Injunction against proceedings at law. — See note, inf.) ; And Let, on default of the Pit paying to the said Deft M. within one month from the date of the Chief Clerk's certificate, to be made in pursuance of this decree, the amount so specified to be due to him on the account hereby directed, the Pits' bill (action) stand dismissed out of this Court with costs to be taxed &c. (and the said injunction stand dissolved)." — Pits' bill (action) to stand dismissed as against the co-Deft A. with costs. — No further order as to costs. — M of Aylesfordy. Morris, V.-C. W., 9 Dec. 1872, as varied on appeal, L, C. and L. J. M., 5 March, 1873, 8 Ch. 484. Since the Judicature Acts the injunction against prosecuting actions commenced at Law would be omitted, and an application would be made in the Division in which any such action might be pending for a stay of proceedings or transfer of the action. For like decree with injunction to restrain the Defts, or either of them, their clerks or agents, from negotiating, parting with, or disposing of the securities in the pleadings mentioned, or any of them, see Tyler v. Yates, V.-C. S., 11 Eq. 265. NOTES. In cases of catching bargains with heirs, reversioners, or expectants in the lifetime of the fathers or ancestors, there is from the intrinsic uncon- CH. XXIV. S. IV.] UNCONSCIONABLE BARGAINS. 741 scionableness of the bargain an appearance of fraud: Chesterfield v. Jans- sen, 1 Lead. Cas. Eq. 592, 638; i. e. of the unconscientious use of power arising out of the circumstances or conditions of the parties contracting — weakness on the one side, extortion on the other: E. Aylesford v. Morris, 8 Ch. 484, 490, Form 2, sup. The jurisdiction of Equity to set aside dealings as unconscionable is unaffected by the repeal of the usury laws: Tyler v. Yales, 6 Ch. 665; MiUer v. Cook, 10 Eq. U\; Croft v. Graham, 2 D. J. & S. 155, Form 1, sup. p. 739; and remains unaltered by the Sales of Reversions Act (31 V. c. 4), by which it is enacted that no purchase of any reversionary interest made bona fide and without unfair dealing, shall be opened or set aside merely on the ground of undervalue ; for in cases of this class there is a presumption of fraud: E. Aylesford v. Morris, 8 Ch. 490; and what is set aside is a loan, not a purchase: Beynon t. Cook, 10 Ch. 389, 392, n. ; Tyler v. Yates, 11 Eq. 265, 276, 6 Ch. 665. Every person who is entitled, either absolutely or contingently, to any reversion or remainder in a property or a portion, or who has the hope of succession to the property of an ancestor or relative, either by reason of his being the heir apparent or presumptive, or by reason merely of any supposed or presumed affection on the part of his ancestor or relative, is an expectant heir within the meaning of the rule: Beynon v. Cook, 10 Ch. 391, n.; E. Aylesford v. Morris, 8 Ch. 497; Tyler v. Yates, 11 Eq. 265, 6 Ch. 665; Tottenham v. Emmett, 14 W. R. 3. It is not necessary that there should be any actual dealing with the ex- pectant or reversionary interest, if the expectant heir be in fact trusted on the credit of his expectations: E. Aylesford v. Morris, 8 Ch. 497; Beynon v. Cook, 10 Ch. 392, n. It has been held that no relief will be given in respect of dealings with property in possession, though subject to an annuity: Webster v. Cook, 2 Ch. 542; but this decision has been doubted: V.-C. S. in Tyler -v. Yates, 11 Eq. 276; and was not followed in Helsham v. Barnett, 21 W. R. 309; or in Howley v. Cook, L R. 8 Eq. 570. The mere fact that the dealings impeached were known to the expect- ant's family or friends, or that he had professional advice, though very material in disproving the combined weakness and extortion on which the presumption of fraud depends, is not sufficient of itself (notwithstanding the words of Lord Brougham in King v. Hamlet, 2 My. & K. 456, 474) to prevent relief being given: Miller v. Cook, 10 Eq. 641, 647; E. Aylesford V. Morris, 8 Ch. 492; Talbot v. Staniforth, IJ. & H. 484; and see Sugden V. & P. 277; and on the same principle the age of the expectant, though material, is not conclusive: Beynon v. Cook, 10 Ch. 389; Tynte v. Hodge, 2 H. & M. 287, 296; and see Helsham v. Barnett, 21 W. E. 309; Howley V. Cook, I. R. 8 Eq. 570. In cases not within the Act 31 V. c. 4, e. g. where the bargain is primA facie unreasonable, the onm is on the Deft of showing that the trans- action is fair and righteous : E. Aylesford y. Morris, 8 Ch. 496; Webster V. Cook, 2 Ch. 542, 546; Tynte v. Hodge, 2 H. & M. 287 ; Talbot v. Stani- forth, IJ. & H. 484; Aldborough v. Trye, 7 CI. & F. 436; Davis v. B. of Marlborough, 2 Sw. 139. Accounts settled for the purpose of advances on post-obit bonds, or 742 SPECIPIG EBLIEP. [PAET IT. mortgages of reveiBionary interests, will not be treated as settled accounts : Croft V. Graham, 2 D. J. & S. 133, 5 Giff. 1 ; Tottenham v. Green, 1 N. R. 466. Assignees with notice of securities impeached as unconscionable are bound by the equities between the parties to the original dealing: Totten- ham V. Green, sup. ; Neibitt v. Berridge, 32 Beav. 482, 4 D. J. & S. 45. Laches is only imputable from the time when the reversionary or expec- tant interest falls into possession : Beynon v. Cook, 10 Ch. 393, 399. Suits of this class are treated as redemption suits: Peacock y. Evans, 18 Ves. 512; and therefore repayment of the actual consideration is directed with interest — usually at £5 per cent, by analogy to the legal rate: E. Aylesford v. Morris, 8 Ch. 484; 2))kr v. YMes, 11 Eq. 265, 6 Ch. 665; Miller y. Cook, 10 Eq. 641; and see Croft v. Graham, 5 Gifl. 1; and costs have been allowed to the Deft: Miller v. Cook, 10 Eq. 641; and are not usually allowed to the Pit: E. Aylesford v. Morris, 8 Ch. 484; Tyler v. Yates, 11 Ex. 265, 6 Ch. 665; Croft v. Graham, 5 Giff. 1; unless he has offered proper terms before the commencement of the suit which have been refused: Beynon y. Cook, 10 Ch. 389 ; Wyatt v. Cook, 16 W. R. 502; or unless the Deft has been guilty of fraud or misconduct: Howley T. Cook, I. R. 8 Eq. 570 ; and in default of payment of principal and in- terest and costs, if allowed to the Deft, the suit is dismissed with costs: Oroft V. Graham, 2 D. J. & S. 155; Benyon v. Fiteh, 35 Beav. 570, 578. Questions of unconscionable bargain, and the right of incumbrancers to bold a mortgage and further chai-ge as a security, only for sums actually advanced, may also, in cases where the fund is in Court, be raised and determined on petition without the institution of an action : JRe Slater's Trusts, 40 L. T. N. S. 184, 11 Ch. D. 227; Lewis v. Eillman, 3 H. L. G. 607, 630. IT. FRAUD ON MiEITAL RIGHTS. 1. Settlement set aside as in Fraud of Marital Rights, and Trusts of New Settlement declared. " Declare that the indenture of settlement, dated the day of in the pleadings mentioned, is and was a fraud on the mar- ital rights of the Pit; And Let the Defts J. & W. (trustees) (within &c.) deliver up the said indenture (to the Pit D.) to be caiucelled, and deliver to the Pit all deeds and documents relating to the trust property comprised in the said indenture, including the counterpart of the lease of the house &c." — Account of rents and profits against Defts J. and W. — Pit's costs to be taxed and paid by Defts other than the Deft F. (wife) — "And, by consent of the Pit, Declare that the Pit is entitled to the rents and profits of fflie said house during his life ; that after his death the Deft F. will be entitled to such rents and profits during her life ; and that, after the death of the survivor of them, such house shall go according to CH, XXIV. S. IV.] FRAUDS ON CREDITORS. 743 their joint appointment, and in default of such joint appointment according to the appointment of the survivor, and in default of such last-mentioned appointment to the Deft M. {child of Pit and F.)," — Liberty to apply. — Dovmes v. Jennings, M. R., 32 Beav. 290. As to the jurisdiction of Equity in cases of this kind, see Countess of Sirathmore v. Bowes, 1 Lead. Cas. Eq. 446. V. — FRAUDS ON CREDITORS. 1. Conveyance in Fraud of Creditors wholly set aside. " Declare that the indenture (of settlement) dated &c. in the pleadings mentioned is fraudulent and void as against the creditors of the bankrupt in the pleadings named; And Let the Deft P. within &c. deliver up the said indenture to the Pits C. &c. to be cancelled ; And Let an account be taken of the rents and profits of the hereditaments &c. comprised in the said indenture received by the Deft, or by any other person &c. ; And Let the Deft P. within (one month) after the date of the Chief Clerk's certificate of the result of such account, pay the balance, if any, that shall be certified to be due from him to the Pits C. &c., as the (assignees) of the estate of the said bankrupt." — Defts to pay Pits' costs of suit. — " But in case, on taking the said account, any balance shall appear to be due to the Deft, Adjourn further consideration and subsequent costs." — Cazenove v. JPilkington, M. R., 19 March, 1858. 2. The Like in Administration Suit — Inquiry as to Acquiescence, "Declare that the indenture of settlement dated &c. in the pleadings mentioned is fraudulent and void as against the creditors of C. deceased, the intestate in the pleadings named;" — 1. Ac- count of what is due to the Pit and all other creditors &c. — 2. " An inquiry whether any and which of such creditors assented to or acquiesced in the said indenture dated &c." — Usual directions for administration. — Deft P. {trustee) to pay Pit's costs of suit (as "between party and party). —Adjourn further consideration and costs of Deft C {administrator) and of Pit, as between solici- tor and client, beyond his costs as between party and party. — Liberty to apply. — Freeman v. Pope, V.-C. J., 9 Eq. 206, aflBrmed 5 Ch. 538. 744 SPECIFIC RELIEF. [PAET IV. For declaration that the indentures in the pleadings mentioned were fraudulent and void as against the Pit and the other creditors of the tes- tator, and that the property comprised therein was assets for the payment of the testator's debts, see Taylor v. Coenen,y.-C. M., 1 Ch. D. 636; Skarf7. Sotdby, V.-C. E., 16 Sim. 344, S. C. 1 Mac. & G. 364. 3. Settlement in Fraud of Creditors partially set aside. ' ' Declare that the indenture (of settlement) dated &c. in the pleadings mentioned is void as against the Pits (liquidators) and the other creditors of the Deft A. ; And Let the Defts G., W., and J. (trustees) join and concur in all acts and things necessary for making the property comprised in the said indenture available for satisfying the claims of the Pits and all other the said creditors of the Deft A., as shall be directed by the Judge at Chambers in case the parties differ." — Liberty to the Pits to apply for their costs out of the assets of the company in the winding up. — Reese River Sillier Mining Company v. Atioell, M. E., 7 Eq. 347, following Rott V. Smith, 21 Beav. 511. For decree in administration suit, declaring that gifts of chattels and money, and a settlement, were fraudulent and void as against the cred- itors of an intestate, and that, as between the Defts, the funeral and ad- ministration expenses and the Pit's costs ought to be borne by the Defts, other than the trustee of the settlement, ratably in proportion to the amount or value of the several gifts to them respectively, and of their re- spective interests under the settlement, without prejudice to the right of the Fits to enforce the decree against all or any of the Defts, and against all or any part of the estate of the intestate, as they might be advised, see Cornish v. Clark, M. R., 14 Eq. 184, settled by the Court. 4. Sale in Consideration of an Annuity set aside, with Consequent Relief. [D. assigned his business, goodwill, and office furniture to W. in con- sideration of a bond given by W. to K. , as trustee, for securing payment of an annuity of £100 to H., the wife of D., for her separate use, and after her death to D., with provisions for commuting at any time. Pits were judgment creditors of D. The bond was in D.'s custody.] "Declare that the provisions made in the condition of the bond of the Deft W. for payment of an annuity of £100 to the Deft H., the vrife of the Deft D., is fraudulent and void as against the Pits, judgment creditors of the Deft D. ; and that as between the Pits and the Defts D. and H. his wife, the said annuity of £100 ought during the life of the said H. to be paid to the Pits in satisfaction of their judgment debts and costs, as hereinafter mentioned." — Costs of Deft W. to be taxed and paid by the Pits. — ' ' And Let the CH. XXIV. S. IV.] PSAUDS ON CEEDITOBS. 746 Deft D. deliver up on or before the of the bond in the pleadings mentioned dated &c. to the Deft K. as a trustee for the Pits, until satisfaction of their judgment debts and costs ; And Let the said Deft K. deposit such bond with the Clerk of Records and Writs ; And on his so depositing the same, Tax the said Deft his costs of this suit ; And Let the same when taxed be paid to the said Deft K. by the Pits, without prejudice to the said Deft retain- ing his costs of this suit, to be taxed &c., as between solicitor and client, out of any money to be recovered on the said bond. — Tax the Pits their costs of this suit, and Let the Deft D. pay to the Pits N. and C. their said costs when taxed, and also the costs which shall be paid by the Pits to the Defts K. and W., as herein- before directed ; and* in default of his so paying the same the Pits are to be at liberty to add such costs to their judgment debts." — Liberty to the Pits to apply in Chambers respecting putting the bond in suit. — Libertj' to the Deft K. to apply as to any charges and expenses properly incurred by him, not being costs in the suit. — Liberty to apply generally. — Neale v. Day, V.-C. W., 4 Jur. N. S. 1225, settled by the Court. NOTES. FORM OF DECREE OR JUDGMENT. In suits of this nature the deed impeached is usually declared fraudu- lent and void as against creditors, with or without directions for cancella- tion ; the operation of the statute 13 Eliz. c. 5, or of the Bankruptcy Act, being treated as sufficient in itself without directions for reconveyances or reassignments: Cazenove v. Pilkington, Form 1, sup. p. 742; Freeman ■. Topham, 8 Ch. 614; Exp. London §• County Bank, 21 W. R. 842; and what is not such pressure, see Exp. HaUiday, 8 Ch. 283; and see Robson, p. 135 et seq. An interval of six weeks between the request for and completion of a security was not enough to disconnect the two transactions, so as to in- validate the security: Exp. McKenzie, 42 L. J. Bkey. 25; nor even an intei-val of three months, when explained: Exp. Tempest, 6 Ch. 70. A security given in pursuance of a bona fide agreement entered into on a loan of money is valid, unless the agreement is to give security on being pressed by other creditors, or is not absolute: Exp. Bolland, 8 Ch. D. 230 ; Exp. Fisher, 7 Ch. 636 ; Robson, p. 135 ; and a security bona fide given for future advances, to be made to enable the bankrupt to carry on his business, was held valid: Martin v. Willyams, 20 L. T. N. S. 350. Dealings in the usual course of business, or of a current account, are valid: Exp. Carlisle Bank, 36 L. T. N. S. 522; Exp. Blackburn, 12 Eq. 358; and so, too, are any dealings found by a jury to have been entered into without intent to prefer, whether there was pressure upon the bank- rupt or not: Exp. BoUand, Re Cherry, 7 Ch. 24. A creditor receiving payment or security without notice of the debtor's circumstances, is protected by the saving clause: Butcher v. Stead, L. R. 7 H. L. 839, S. C. 9 Ch. 595; even though the dealing on the part of the debtor may amount to an act of fraudulent preference: Exp. Putman, 22 W. R. 569. An act which before the year 1869 would have been a fraudulent pref- erence, as being done in contemplation of bankruptcy, is now protected, if bankruptcy does not take place within three months after it: Per Lord Cairns, in Butcher v. Stead, L. R. 7 H. L. 839, 846. VI. — VOLUNTAET CONVEYANCES. — 27 ELIZ. C. 4. 1. Voluntary Settlement set aside in Favor of Purchaser. Deckeb for performance of agreement for sale, with consequent directions. — " And Declare that the Pit is a purchaser within the intent and meaning of the Act of the 27 Eliz. c. 4, entitled ' An Act against covinous and fraudulent conveyances,' and that the indenture of settlement, dated &c., in the pleadings mentioned, is void as against the Pit ; And Let the Defts S. &c. (trustees of settle- ment) convey or concur with the Deft W. (vendor and settlor) in conveying and assuring to the Pit, or as he shall direct, such parts of the estate comprised in the said agreement for sale, as are com- prised in the said indenture of settlement, and also deliver up to the Pit all deeds and writings in their custody relating to the said estate." — Pit to pay the trustees' costs of suit ; Deft W. to repay Pit what he shall so pay, and pay his costs up to the decree. — Liberty to apply. — Daking v. Whimper, M. R., 26 Beav. 668. CH. XZIV. S. IV.] VOLUNTAET CONVEYANCES. 749 2. Voluntary Conveyance set aside in Favor of Mortgagee — Proceeds of Sale distinguished. " Declare that the Pit is a purchaser for good consideration ■within the intent and meaning of the Act of the 27 Ellz. c. 4, enti- tled ' An Act «&c.,' and that the deeds dated the 16th of June, 1841, in the pleadings mentioned, are void as against the Pit, so far as the same comprised the property in L &c., which said property is also comprised in the memorandum of deposit, dated the 21st of July, 1841 {Pit's secMr%)." — Account of what is due to Pit for principal and interest upon his security, and for his costs of suit, to be taxed ; And upon'the Deft paying to the Pit within &o., at such &c., the Pit to deliver up &c. ; But in default, directions for sale, distinguishing the property comprised in Pit's security, and not in the deed of 16th June, 1841, and that property, if Pit con- sent, to be sold in the first instance, and the proceeds applied to pay him ; And if insufiScient, the propertj' comprised in the voluntary conveyance to be sold and applied ; But if Pit should not consent, the whole of the property comprised in his security to be sold and applied, distinguishing the proceeds ; And if the whole of the proceeds shall be insufficient, reserve the ques- tion as to what further rights the Pit may be entitled to under the statute of the 13 Eliz. c. 5. — Adjourn, &c. — lAster v. Turner, V.-C. W., 5 Hare, 293, NOTES. The question in cases of this description is whether there was considera- tion for the conveyance or settlement. The Court not entering into the quantum of consideration, in effect the question is whether the transaction was one of bargain, not of gift merely: Per Turner, L. J., in Townend v. Taker, 1 Ch. 446, 458. A small and inadequate consideration is suflttcient to support a convey- ance or settlement under the Statute of Elizabeth: L. C, in Bayspoole v. Collins, 6 Ch. 228, 232. On these principles it has been held that a settlement on wife and children, in consideration of an advance of £150 by a third person on the security of a promissory note: Bayspoole v. Collins, 6 Ch. 228; a convey- ance in consideration of a change of residence and a covenant to indemnify against incumbrances by the grantee: Townend v. Toker, 1 Ch. 446j a settlement on children, in consideration of a loan by a third person : Ford y. Stuart, 15 Beav. 493; and see Colyeary. Musgrave, 2 Keen, 98; and a settlement on separation, in consideration of a covenant by the trustees to indemnify the grantor against the wife's debts, were not within the statute; secus, a conveyance for which the only consideration was a cove- 750 SPECIFIC EEUEP. [PAET IV. nant which the Court held incapable of being enforced: Rosherv. Williams, 20 Eq. 210. An assignment of leaseholds will not, it seems, be treated as voluntary, the responsibility of the assignee for payment of rent and performance of covenants being sufficient consideration to support it: Price v. Jenkins, 5 Ch. D. 619 ; Horrocks v. Rigby, 9 Ch. D. 180; Exp. Dohle, 26 W. R. 407. Husband and wife may, in many respects, enter into a contract for valuable consideration with each other ; and therefore where they respec- tively having interests of whatsoever extent, quahty, or degree in property, come to an agreement affecting those interests, which is afterwards embo- died in a settlement, the transaction is supported by valuable consideration: and is valid: Teasdale v. Braiihwaile, 5 Ch. D. 630, 4 Ch. D. 85; Re Foster §• Lister, 6 Ch. D. 87; Hewison v. Negus, 16 Beav. 594; Atkinson v. Smith, 3 D. & J. 186; secus, where the ti-ansaotion amounts to a joint gift, not to giving and receiving a consideration: Builerfield v. Heath, 15 Beav. 408; and see Sugden V. & P. p. 715. Where limitations in favor of issue of a prior marriage are provided for in the treaty for a settlement on a subsequent marriage, such limitations are not voluntary: Gale v. - quired to he done'] clear his contempt, and this Court make other prder to the contrary. See Morgan v. Davies, V.-C E., 3 Dec. 1847. For orders for sequestration against a local board and against railway company for breach of an injunction and for breach of au undertaking, see "Injunctions," iwp. pp. 168, 169. For the form of the writs of sequestration, see Ord. 1875, App. F., Form 10; and for the prcEcipe, lb. App. E., Form 6; and of the writ of sequestrari facias de bonis ecclesiasticis issuable upon return of the ordinary writ of /«W /actas, see Ord. 1875, App. F-, Form 6; and see Cons. Ord. 29, rr. 11-13; Allen v. Williams, 2 S. & G. 455; NoHont. Pritehard, V.-C. E., 7 Oct. 1845; Dan. 927, lb. Forms (3d ed.), p. 744. An order for the eommission of sequestration to issue is necessary if the writ of attachment has aheady issued, but not otherwise. CH. XXIX. S. v.] ISSUE OP SEQUESTRATION. 795 * 2. The Like — on Return of Seryeant-at-Arms Nbn eat Inventus. Whereas by the decree [or judgment, or order] dated &c., it was ordered, &c. [Mecite direction required to be performed] ; and whereas the said (Deft) B. sets out all process of contempt to a Serjeant-at-Arms for not, &c. [^state the defauW] pursuant to the said decree [or judgment, or order], and cannot be found to be taken thereon, as by the return of the Serjeant-at-Arms appears ; and upon reading the said decree [or judgment, or order] and return. This Court doth order that a commission of sequestration &c. [Form 1, p. 794]. 8. The Like — against a Prisoner. Whereas by the decree [or judgment, or order] dated &o., it was ordered, &c. \_Recite the direction required to be performed'^ ; Now upon motion &c., by counsel &c., who alleged &c. [state the process of contempt issued^ , that it appears by the certificate of the Grovernor of HoUoway prison that the said (Deft) B. is a prisoner in the said prison for his said contempt, and upon reading the said decree [or judgment, or order] and certificate. This Court doth order that a commission of sequestration &c. [Form 1, p. 794]. The order is made on exparte motion, and on producing the Governor's certificate of the prisoner being in custody. 4. The Like — for Non-payment of Costs, where Suhpcena served hy Order out of the Jurisdiction. Whereas by the order dated &c.. It was ordered that the Pit's action should stand dismissed out of this Court for want of prose- cution as against the Deft C, with costs to be taxed &o., and to be paid by the Pit N. to the Deft C. Now, upon motion &o. by counsel for the said Deft who alleged that in pursuance of the said order the Taxing Master by his certificate dated &c. certified that he had taxed the costs of the said Deft at the sum of £ ; that on the day of the Pit was, pursuant to an order dated &c., duly served with a writ of subpoena for the payment of the said sum of £ , together with a copy of the said order, as by the affidavits of &o. filed &c, appears ; and that the Pit hath not paid the said sum of £— as by an affidavit of the said Deft C, filed &c. appears ; and upon reading the said orders, certificate, 796 EXECUTION AND CONTEMPT. [PART V. and affidavits, This Court doth order that a commission of seques- tration &c. [Form 1, p. 794] ; until the Pit shall pay to the said Deft C. the said sum of £ , the amount of his said taxed costs, and this Court make other order to the contrary. — See Nugent v. Chapman, V.-C. B., 31 Nov. 1876. The party having been served (though under an order for that purpose) out of the jurisdiction, an order for the writ was deemed necessary. NATURE OF SEQUESTRATION. The commission of sequestration, which is a process of contempt in rem, and not in personam, see TatTiam v. Parker, 1 Sm. & G. pp. 513, 514, should be directed to not less than four commissioners, nominated by the person prosecuting the decree or order, and empowers the commissioners to enter upon all the messuages, lands, tenements, and real estate of the person disobeying the order and in contempt, and to collect, receive, and sequester not only all the rents and profits of such real estate, but also all his goods, chattels, and personal estate, and keep the same under sequestration until the pex-son disobeying the order of the Court shall have cleared his contempt. For form of writ, see Ord. 1875, App. F., Form 10 ; and as to the preparation and issue of the writ, see Ban. Ch. Pr. 912; Ayok. 69. Although leave must be obtained to issue sequestration where a change of parties has taken place since the judgment, see Ord. 1875, xlii. 18, 19, yet where, pending a sequestration, the action has become defective, it would seem that sequestration would continue, when an order is obtained to continue the action ; the principle as to sequestration continuing against the heir or personal representative being the same as under the practice before the Judicature Acts. For such practice, see Burdett v. Rockley, 1 Vern. 58, 118; Wliaram v. Broughton, 1 Ves. 180; Coulslon v. Gardiner, 2 Ch. Ca. 43, 3 Swa. 283, n. ; Dan. 921. PROPERTY LIABLE TO SEQUESTBATION. Personalty : — All goods and chattels in the possession of the contemnor, or which can be reached by the sequestrators without suit or action, are liable to seques- tration ; and if the keys are denied them the sequestrators may open boxes and rooms that are locked, to schedule the goods in them, though they may remove nothing from the house without special order of the Court: L. Pelham v. Ds. Newcastle, 3 Swa. 290, n. ; and see Form 1, inf. p. 797. It has been doubted whether the books and papers of a corporation could be seized under a sequestration on mesne process: see Lowten v. CoU Chester Corp., 2 Mer. 395; but by 11 G. IV. & 1 W. IV. c. 86, s. 15, r. 16, sequestrators have the same power to seize books, papers, writings, or other things in the custody or power of a contemnor who has been com- mitted for not delivering them or depositing them in Court, as they would have over the oontemnor's own property. CH. XXIX. S. v.] PROCEEDINGS UNDER SEQUESTRATION. 797 Separate estate of a maxried woman is liable to sequestration : Miller V. M., L. R. 2 P. & M. 54 ; and also dividends on a fund in Court to which she is entitled for her separate use without power of anticipation: Claydon V. Fincli, 15 Eq. 266. So also the deposit in Court for an appeal: Conn v. Garland, 9 Ch. 101. Chases in A ction : — If a third person has money or any chose in action in his hands belong- ing to the party against whom sequestration has issued, it may, provided the holder, who should have notice of the application, admits possession and submits to the order of the Court, be directed to be seized by the sequestrators and paid into Court: see Wilson v. Metcalfe, 1 Beav. 263; Crispin v. Cumano, L. R. 1 P. & M. 622 ; and his costs of appearing have been allowed: see White v. Wood, 7 Jur. 1123. But if the stakeholderf or person indebted, does not consent to the order, or disputes the title of the contemner and the amount, the Court cannot, it seems, order payment to the sequestrators: Simmons v. L. Kinnaird, 4 Ves. 735 ; Crispin v. Cumano, L. R. 1 P. & M. 622 ; Johnson v. Chip- pendall, 2 Sim. 55, 65; and see Franklyn v. Colhoun, 8 Swa. pp. 309, 310. Pensions : — Pensions granted entirely for past services may be seized under a writ of sequestration: Willcock v. Terrell, 3 Ex. D. 323; Dent v. D., L.. R. 1 P. & M. 366; McCarthy v. Gould, 1 Ball & B. 387. But where the services are still being rendered, as in the case of an equerry: Fenton v. Lowther, 1 Cox, 315; or may be again required, as in the case of an officer on half -pay: McCarthy v. Goold, sup. ; Stone v. Lid- derdale, 2 Anst. 533 ; Collyer v. FaXlon, 1 T. & R. 459 ; Spooner v. Payne, 1 D. M. & G. 388; the salary or half-pay cannot be sequestered: and see Lloyd v. Cheetham, 3 Gif. 171. Real Estate and Chattels Real: — Rents and profits of real estate paid in kind, or the natural produce of a farm, are liable under a sequestration and may be applied; but the land itself, whether freehold, copyhold, or leasehold, or property which passes by title and not by delivery, cannot be sold, as the writ, though it confers a right to take possession, does not transfer the land or the term to the sequestrators: Shaw v. Wright, 4 Ves. 22; and see Sutton v. Stone, 1 Dick. 187. n. — PROCEEDINGS UNDER SEQUESTRATION. 1. Order for Sequestrators to sell and pay in Proceeds — Taxation and Payment of Costs— Power to remove Effects salable and unsalable. "Upon the application of D. &c. [names'] the Sequestrators acting under the sequestration issued in this action on the day of against the Deft H., and of the Pits ; and upon hearing the 798 EXECUTION AND CONTEMPT. [PAET V. solicitors for the Applicants, and for the Deft H. ; and upon read- ing the order dated &c. an aflSdavit of &e,, filed &c., Let the said [names'] the Sequestrators acting under the said commission, or any three or two of them, be at liberty to sell, or cause to be sold, either by public auction or private contract, the household furniture, goo^s, chattels, and personal estate of the said H., now at his residence situate &c., and also all the share and interest of the said H. as partner with one J. of and in all the book debts, materials, tools, implements, goods, chattels, personal estate, goodwill, and stock in '^ade used in the partnership business of &c. carried on by the said H. and J. at &c. aforesaid, under the style or firm of J. and H,, all of which household furniture, goods, chattels, personal estate, and property are now under control of the said Sequestrators, and that for the purpose aforesaid the said Sequestrators, or any three or two of them, be at liberty to remove the same house- hold furniture, goods, chattels, personal estate, and property from the said residence and place of business of the said H. or elsewhere soever the same may liave been deposited by or on bis behalf to any convenient place in the discretion of the said Sequestrators." — Sequestrators to pay proceeds into Court, and the costs of executing the writ, to be taxed and paid thereout to their solicitors, and the balance to be invested. — " And Let the said Sequestrators, or any three or two of them, be at liberty to remove all unsalable effects and property of the said H. from his said residence and place of business or elsewhere soever the same may have been deposited by or on behalf of the said H., to a convenient place under the control of the said Sequestrators. — Street v. Hope, V.-C. M., 21 June, 1875. For order exparte for sale, under a sequestration after a return of non est inveniiis to an attachment, of personal chattels belonging to the contemnor in the custody of third parties, and for removal of books and documents in his custody as solicitor to a place under the control of the sequestrators, see Re Rush, M. R., 19 W. R. 417, 22 L. T. N. S. 116. 2. The Like — And to account and arrange Claims for Dilapi- dations,, cmd Tenant Right — Application «f Proceeds. Upow the a^lication of IJje Pit and upon hearing the soUdtoiiS for the Applicant, for the Deft B. and for D., Itoe trustee in bank- ruptcy of the said Deft, and upon reading &c. — " Let the Seques- trators acting under the commissions of sequestration issued in this cause and dated &c. sell at such convenient time or trmes as they may detettniae upon (but so thait such sale be carried ojit oa or before the day of — ~ ) , all the geodte, fitnmfaire, plate, chattela^ CH. XXIX. S. v.] PROCEEDINGS UNDEB SEQUESTRATION. 799 stock, iinplements, and personal estate of the Deft B., sequesterecl by them and now teinaining in their possession ; And Let them also settle and arrange with the incoming tenant as to the amount to be paid by him in respect of the tenant r^hts upon the Deffc's farm, and receive such amount, and give a discharge for the same, and also settle with the landlord, or his incoming tenant, all (if any) claims for dilapidations in and about the farmhouse, buildings, and lands occupied by the Deft ; And Let an account be taken of the moneys received and paid by the said Sequestrators under and by virtue of the said commissions, including the moneys to be received or paid in pursuance of the directions hereinbefore contained ; And Let &c. [names'^ as such Sequestrators within days after the filing of the Chief Clerk's certificate pay into Court to the credit of this cause &c, the ' sequestration account ' the balance which shall be certified to be due from them on taking the said account ; And Let the Taxing Master tax the costs (as between solicitor and client) of the Pit and Deft, and the costs, charges, and expenses of the said Sequestrators properly incurred of and relating to the execution of the said commissions of sequestration, including a proper allow- ance to them for their time and trouble." — Direction for payment of such costs &c. out of the proceeds when paid in ; — " And Let thereout also the sum of £ — — mentioned in the said sequestration dated &c., and the sum of £ mentioned in the said sequestra- tion dated «&e., making altogether the sum of £ , be carried over to the credit of this cause &c. ; And Let thereout also the sum of £ mentioned in the said sequestration, dated &c. be paid to the Pit, and the residue of such money be paid to D. as the trustee in bankruptcy, of the said Deft B." — BeBurkill, Godfrey v. BurkiU, V.-C. M. at Chambers, 3 March, 1873. 3. Order for Tenants to attorn to Sequestrators. Upon motion &c. by counsel for the Pits, who alleged that a com- mission of sequestration issued on &c. against the Deft, directed to A. «&c., authorizing them, or any two of them, to enter upon all the real estate of the Deft, and to collect, receive, and sequester into their hands all the rents and profits thereof ; and that, pursuant to the said commission of sequestration, A. and B., two of the Commissioners therein named, entered upon all the lands comprised in the said real estate, and situate &c., and in the holding of «&c., who refuse to attorn tenants to the said Commissioners, as by the return of the said Commissioners of sequestration now produced and read ap- pears ; And upon reading an affidavit of ifec. of service of notice of this application on the said (tmmitt) {_or, and upon hearing 800 EXECUTION AND CONTEMPT. [PART V. counsel for the said (tencmtay], This Court doth order, that the said {tenants) do, within days after service of this order, attorn to and become the tenants of the said A. and B., the said Commis- sioners of Sequestration, and pay their rents in arrear and growing rents to the said Commissioners until further order. NOTES. POWERS AND DUTIES Or SEQUESTHATOES. Sequestrators are authorized by the writ to enter into possession of lands, &c., in the possession of the contemnor, and to receive the rents and profits of such of his estates as are in the occupation of tenants, who should be served with notice in writing to attorn and pay their arrears and growing rents to them: see Dan. 916; and upon refusal to attorn, &c., the sequestrators may upon motion obtain an order for them to attorn, &c. : see Form 3, sup. p. 799 ; Rowley v. Ridley, 3 Swa. 306 ; S. C. 4 Ves. 738-740. Sequestrators will be ordered to account for whatever comes to their hands by virtue of their office, and are bound from time to time to make returns to the Court : Howell v. Ld. Coningsby, 1 Fowl. Ex. Pr. 161 ; Dan. Ch. Pr. 917 ; Form 2, sup. p. 798. Under a sequestration for non-performance of a decree for payment of money, the proceeds of the goods seized will be applied in satisfaction of the Pit's demand: Davis v. Z)., 2 Atk. 24. The sequestrators ought not so to apply the proceeds on their own authority, but should pay them into Court upon leave obtained on mo- tion: Dan. Ch. Pr. 917; or by summons in Chambers. Sequestrators under an interlocutory order for the non-performance of a duty have the same power as under a final decree: Cadell v. Smith, 3 Swa. 308, n. ; Dunkley v. Scribnor, 2 Mad. 443. Sequestrators abusing their powers may be committed : Ld. Pelham v. Ld. Harley, 3 Swa. 291, n. ; and see Sykes v. Dyson, W. N. (70) 81. And obstructing sequestrators is a contempt of Court: Angel v. Smith, 9 Ves. 336; Ld. Pelham v. D. of Newcastle, 3 Swa. 289, n. ; and see Franklin v. Calhoun, 3 Swa. 276 ; Dan. 922. The title of sequestrators will prevail over that of mortgagees with full notice of the proceedings: Ward v. Booth, 14 Eq. 195. When necessary a sale may, on the application of the sequestrators, be ordered: — — of rents in kind, or the natural produce of a farm : Shaw v. Wright, 3 Ves. 22; — of household goods and furniture: Mitchell v. Draper, 9 Ves. 208; — of a Deft's reversionary interest in a fund in Court: Cowper v. Taylor, 16 Sim. 314. But sequestrators cannot sell the estates themselves, as distinguished from the profits, whether freehold or leasehold, as neither the estate nor the term is vested in them by virtue of the writ: see Shaw v. Wright, 3 Ves. 22. Under a sequestration on mesne process, a sale would not be directed CH. XXIX. S. v.] EXAMINATION PRO INTERESSE SUO. 801 except for payment of expenses: Hales v. Sliafto, 1 Ves. Jun. 86, 2 Cox, 224; Knight v. Young, 2 V. & B. 184; or unless the goods were of a perishable nature: see Wilcocks v. W., Amb. 421; Shaw v. Wriqht, 3 Ves. 22. The application for a sale should be made by summons in Chambers: see Turner v. Clifford, W. N. (70) 199; or on motion: see Wharam v. Broughton, 1 "Ves. 184; upon notice: Mitchell v. Draper, 9 Ves. 208; but where service of the notice could not be effected, an order for sale was granted upon an exparle motion: Re Rush, 19 W. R. 417. The execution by the sequestrators of the writ by taking possession of such parts of the lands of a Deft, who had failed to comply with an order duly registered for payment of money into Court, as were in his posses- sion, and by procuring an attornment from the tenants of the other parts, does not constitute the F)t, by whom the writ had been issued, a creditor to whom the lands of the debtor have been actually delivered in execution, so as to entitle him to a sale of the land under 27 & 28 V. c. 112: John- son V. Burgess, 15 Eq. 398; not following Re Rush, 10 Eq. 442. On a sequestration under a decree, leave will be given to the sequestra- tors to let: Harvey v. H., ^ Rep. in Ch. 49; and sequestrators in posses- sion and in receipt of the rents and profits were allowed to let and set the estate, as there should be occasion: Rees v. Williams, V.-C. K. B., 27 April, 1848 ; Neale v. Beating, L. C, 3 Swa. 304, n. ; and see Dunkley v. Scribmr, 2 Mad. 443. m. — EXAMINATIOK PEG INTERESSE SUO. 1. Inquiry as to Claimant's Interest. Upon motion &c. by counsel for S. of &c. [^claimant'], and ifpon hearing counsel for the Pits and for the Deft ; and upon reading &c. [enter any evidence] ; This Court doth order that an inquiry be made whether the said S. hath any and what interest in the lands and hereditaments specified in the schedules to the return to the commission of sequestration issued in this cause (action) and other the real estates comprised in the indentures dated &c. [describe the property] sequestered by &c., the Sequestrators acting under the said commission of sequestration, or any and what part thereof; And it is ordered that this motion do stand over until after the Chief Clerk shall have made his certificate of the result of the said inquiry ; (but this order is to be without prejudice to any question as to the rents of the said lands &c.). — Liberty to apT^ly.— Alton v. Harrison, V,-C. S,, 22 June, 1869. 51 802 EXECUTION AND CONTEMPT. £PABT V. 2. The Like — On Motion that the Sequestrators withdraw, and for Damages, and Gross Motion that they sell. Upon motion &c. by counsel for S. of &e. and H. of &c. {claimants) that the Sequestrators might be disdharged and ordered to withdraw from possession, and for an inquiry as to damage, and that the Pits might be ordered to pay the amount of such damage, or for an inquiry as to the daimant's interest ; and upon hearing counsel for the Pits and the Deft H. ; and upon motion &c. by counsel for the Pits &c. that the said Sequestrators might sell ihe several goods, chattels &e., and articles of personalty in and about the house &c., situate &e., sequestered by the said Sequestrators ; and upon hearing counsel for the Deft H. ; and upon reading &c.. This Court doth order that an inquiry be made whether the said S. & H. {dUumoMts) have any and what interest in the several goods, chattels &c., and articles of personalty in and about the house &e., eitaate &c., sequestered by the said Sequestrators or any and*wfaat part thereof; and also in the lands and hereditaments comprised in the indenture dated &c. — Rest of motion to stand adjourned until after the result of the inquiry. — Alton v. Harrison, V.-C. S., 28 Jan., 1869. 3. Sequestraiore to withdraw upon Undertaking hy Claimant as to Damages, to keep an Account, and to allow Sequestrators to take Inventory — Inquiry, Upok motion &c. that Sequestrators withdraw, and for inquiry as to damage and claimant's interest ; And the said H. [c^aiwasw!!] by his counsel at the bar undertaking to permit the Sequestrators acting under the commission of sequestration issued in these causes on the day of to take an inventory of the stock in trade, diattela, and effects in and about the warehouse &c., situate &c., sequestered by the said Sequestrators, and also not to deal with or dispose of any of the said stock in trade &c., except in the ordinary course of busi- ness, and to keep an account of all moneys he shall receive and pay in respect of the said stock in trade &c., and of any disposition thereof in the ordinary course of business, and also S'Ubmitting to be bound by anj' order this Court may make as to damages or with respect to the proceeds of any of the stock in trade &c., dealt with in the ordinary course of business, and to restore possession of the said warehouse &c., if this Court should so order, Let such inven- tory be taken accordingly ; And Let the said Sequestrators with- draw from possession of the said stock in trade &c., and also from CH. XXIX. S. v.] EXAMINATION PEO INTERESSE SUO. 803 all interference with the said premises, goods, chattels, and effects, until the inquiry hereinafter directed has been answered, or until further order ; And Let an inquiry be made whether the applicant is in any and what manner interested in the said premises, stock in trade &c., or any and what part or parts thereof. — Rest of motion to stand over until after the result of the inquiry. — Alton v. Marrison, V.-C. S., 11 Jan. 1869. The inquiry in this case was directed before the return, on a suflScient case being shown by the affidavits in support of the application, see Dan. 920. 4. Declaration that ClaimantB have an Interest against which Sequestrators cannot hold — Direction to withdraw — Costs. Upon the application of &c. \_claiining as mortgagees'] to vary the Chief Clerk's certificate adjourned into Court, and upon the fbdjourned motion Sue. ; Let the said certificate so far as it is thereby certified that the Applicants have not any interest in the several goods, chattels &c., and articles of personalty in and about the house &c., situate &c., sequestered by the said Sequestrators, nor in the lands and hereditaments comprised in the indenture dated &c., be varied. And Declare that the said {claimants) have under and by virtue of the said indenture an interest vfx the said several goods &c. and articles of personalty, lauds, and hereditaments, against which the said Sequestrators cannot hold ; And Let the said Sequestrators withdraw from the possession of the said several goods &c., and articles of personalty, and from the possession and receipt of the rents and profits of all such parts of such lands and hereditaments of which they are in possession or in receipt of the rents and profits, and they are not hereafter to receive any further rents. — Costs of claimants of this and their former applications, and of the reference, to be added to the amount due to them under their security, such costs to be taxed &c. — Alton v. Harrison, V.-C. S., W. N. (69) 81. NOTES. When any person claims to be interested in or entitled to property, whether personal or real, which has been sequestered, either he, or the party issuing the writ, may apply to the Court to direct an inquiry as to his interest therein. The application is now usually made by summons, hut may be on motion. For form of notice of motion, or summons, see Dan. Ch. Forms, p. 743 (3d«d.)- 804 EXECUTION AND CONTEMPT. [PAET V. In Kaye v. Cunningham, 5 Mad. 406, it was held that an order for the examination of a party pro interesse suo could only be made upon his ap- plication or by his consent; but the current of cases is not in favor of this decision: see Hamhlyn v. Ley, 3 Swa. 301, n.; Bird v. Littlehales, 3 Swa. 300, n. ; Mitchell v. Draper, 2 Mad. Ch. 305. The order cannot usually be made until the return of the sequestration : for until then " it cannot appear to the Court what is sequestered: " Pelham v. Ds. Newcastle, 3 Swa. 290, n. ; but see Alton v. Harrison, Form 3, sup. p. 802. Tlie person obtaining the order for an inquiry may be required to make ■ an affidavit of the documents in his possession: Alton v. Harris'on, W. N. (69) 81. In case of delay the party was ordered to put in his examination within a limited time : see Cooper v. Thornton, 1 Dick. 72, 1785, A. 377 ; and Wharam v. Broughton, 1 Ves. 180; S. C. 1 Dick. 137. Where the right is clear, the Court will give relief, without compelling the party to be examined: Dixon v. Smith, 1 Swa. 457; and see A. G. v. May. of Coventry, 1 P. Wms. 308. But a mortgagee must come in and be examined: Anon., 6 Ves. 288 (citing Hamblyn v. Lee, 1 Dick. 94, 3 Swa. 301, n.). And a person cannot claim, though by an adverse title, in any other way than by coming to be examined pro interesse suo; Angel v. Smith, 9 Ves. 336 ; though leave to bring an ejectment has sometimes been given : see Brooks v. Greathed, 1 Jac. & W. 177; Angel v. Smith, 9 Ves. p. 340; A. G. V. May. of Coventry, 1 P. Wms. 308; or the Court, by directing an issue, has put the question of right in course of trial: Empringham v. Short, 3 Hare, 461. In Hunt v. Priest, 2 Dick. 540, the Court refused to interfere on peti- tion ; but in Walker v. Bell, 2 Mad. 21, on the petition of mortgagees, directed an inquiry into their title ; and on the report a further order was made. The mode of proceeding was the same where the property was in the possession of a receiver: Anon., 6 Ves. 287; Angel v. Smith, Brooks v. Greathed, sup. ; and in Hammonds. Maber, L. C, 4 Aug. 1821, A. 1905, on motion to commit a person for ousting the receiver, he was ordered to deliver up possession and pay costs, and to go in and be examined pro interesse .luo ; and see Dan. 919. If it shall appear that the party examined pro interesse suo has a title paramount to the sequestration, it will be discharged as against him, with or without costs, according to the circumstances of the case, see A. G. v. May. of Coventry, 1 P. Wms. 307, n. (citing Gilb. For. Rom. 80; Wharam V. Broughton, 1 Ves. 180) ; Cooper v. Thornton, 1 Dick. 72 ; and in Cope- land V. Mape, 2 Ball & B. 67, the goods taken having been ascertained to be the property of the person examined pro interesse suo, were directed to be specifically restored, with an inquiry as to damages. Rents received by sequestrators were ordered to be paid to mortgagees who had been prevented by the sequestrators from taking possession, their title being ascertained under an examination pro interesse suo: Tatham v. Parker, 1 S. & G. 506. The inquiry may be applied for by the guardian of an infant, or by CH. XXIX. S. T.] DISCHARGE OP SEQUESTRATION. 805 a person in formS. pauperis : Dan. 39 ; Pelham v. Ds. NewcasUe, 3 Swa. 290, n. ; James v. Dore, 2 Dick. 788. Foj^the former and present practice, see Dan. 925. rv. — DISCHAEGE OP SEQUESTRATION. Order to discharge Attachment and dissolve Sequestration. Upon the application of &e. ; and all parties, by their solicitors, consenting to the following order, discharge attachment and dis- solve sequestration issued against the Deft S. on &c., for not &c. ; And Let the costs of the Pit and of the Sequestrators of and inci- dental to the attachment, and the costs, charges, and expenses of and incidental to the sequestration, including their costs of the application by the mortgagees for the order dated &c. (for inquiry pro interesse sua), and all usual and proper allowances to the Sequestrators in respect of their office, and of this application and of and incidental thereto, be taxed (as between solicitor and client), in case the parties differ, and be respectively retained and paid by the Sequestrators as thereinafter mentioned ; And Let D. &c. the said Sequestrators withdraw from possession of the said estate of the Deft S. situate at &c., and from receipt of the rents and profits thereof within &c. from the service of this order, and within the time aforesaid give notice of their withdrawal (to the tenants) and be paid their costs thereof (to be taxed as between solicitor and client), and included in the costs hereinbefore directed to be taxed and retained ; — Sequestrators to leave accounts in Chambers, and to retain their costs, and costs, charges, and expenses when taxed or agreed to, out of the moneys in their hands ; and the mortgagees consenting and abandoning the inquiry as to their interest directed by the said order. Sequestrators to pay what shall be found due from them, on the balance of their account, to Deft S., within, &c. ; and thereupon the Sequestrators to be released and discharged from all liability in respect of their office. — See Jiaiolinson v. Stringer, M. E. for V.-C. S. at Chambers, 11 Sept. 1868. NOTES. SEQUESTRATION DISCHARGED. Where the contemner has cleared his contempt, an order for the dis- charge of the sequestration may be obtained on summons, or by motion, with directions for the sequestrators to withdraw from possession and to 866 EXECUTION AND CONTEMP*. [PABT V. ^a^» tiieir finail iccotihts'i and after retaiiwrig th-eir costs, charges, and ex- penses, and any payments properly made bythem, to pay the balance to the conteranor: see Ratolinaon-v. SlriWger,^p. ;- Dan. 431-436, &23* Unless by consent, upon discharge of the sequestration, the costs of the sequestrators will be allowed as between party and party, and not as be- tween solicitor and client: Re Shapkmd, W. N. (74) 202, 23 W. R. 40; but the sequestrators are entitled to their expenses and proper allowances for executing the commission. Where the contemnor desires to discharge the sequestration on the ground of irregttlarity of process", he should a{>ply by motion on notice. A sequestration is discharged by the appointment of a receiver in the same suit: Shaw v. Wright, 3 V63. 22^; sembk, the order appointing the receiver shbuld disBharge the sequestratOTS. An order for sequestration was discharged where the contemner was already in prison under an aittachraent, bat the retm-n-day named ia the writ of attachment had not expired: Martin v. Kerridge, 3 P. Wms. 241; Re Brown,, l6 W. K. 962 (where the writ of sequestration was giiashed). But any itfe^larity in the issue of a SequesftratiOn may be waived by the consent of the contemnor, so as to prevent him from afterwards setting aside the sequestration : Const v. Barr, 2 Russ. 161 (discharging an order of Y.-C, setting aside a sequestraitioit on the ground of irregularity: S. C. a S. & & 492). Section VI. — Special Contempts op Codbt. 1. Committal of the D&ft, and another Person, for ohstructing ike Receiver. Upow motioA &c., by counsel for the Pits, and upon reading the decree dated &e., the order dated &e., an affidavit of &c., filed &c.i and an affidavit of seMce of notice of this motion on the Deft J. G. J And it appearing by the said aflSdavits that the I>effe J. 6. and W. Grj her son have obstructed ^ the receiver appointed in this cstu'se to receive the rents and profits of the real estates, and to collect and get in the outstanding personal estate of &6., the testator &c.,' pursuant to the said order dated &c., in receiving such rents and profits, and have persuaded and induced the tenants of the said estates to abstain from attorning and paying the rents of the said estates to the said as such receiver, and have distrained for rent upon the eflfects of H. a tetiant on part of the said estates after the date of the said order ; This Court being of opinion that the Deft J. Gr. and the said "W. G., have, by such conduct, been guilty of a Contempt of this Court, doth order that the said J. G. and W. G. do stand committed to (Hollowfty) prison for their said contempt — - Marih V. QoOdcctl, M. E., 13 Jan. 1857. CH. XXrS.. S. VI.] SPECIAL CONTEMPTS OF COUET. 807 2. Committal of Deft and Another, for Violence and Abusive Lan- guage to a Person effecting Service — Cons. Ord. 42, r. 2. Upon motion &c., by counsel for the Pits, and upon hearing counsel for the Deft H. and for C. of &c. ; and upon reading an affidavit of V., filed &c., whereby it appears that the said Deft H. and C. have assaulted and imprisoned and used violence and abusive language to the said V , a clerk in the employment of the Pit's solicitors, whilst serving the said Deft H. with the (Plf s bill) in this cause [^insert any fwrther evidence'] ; And This Court being of opinion, upon consideration of the facts disclosed by the said affidavit, that the said Deft H. and the said C. have been guilty of contempt of this Court, doth order that the said Deft H. and the said C. do respectively stand committed to (Hollo way) prison for their said contempt. — Price v. Hutchinson, V.-C. M., 9 Eq. 534. 3. Committal of a Newspaper Editor for publishing an Article reflecting on Witnesses. Upon motion &c., by counsel for the Defts B. and I., that R. of &c. might stand committed to prison for a contempt of this Courfe in printing and publishing on the day of , in a certain newspaper caUed &c., an article contained therein commencing with the words &e. and concluding with the words &c., and that the said E. might be directed to pay the costs of and occasioned by the said application ; and upon hearing counsel for the said R. , and upon reading &c. ; And this Court having taken the matter into con- sideration, and deeming the conduct of the said R. in printing and publishing the said article in the said newspaper called &c., a con- tempt of this Court, doth order that the said B. do stand committed to HoUoway prison for his said contempt. — Fdhin v. Herbert, V.-C. K, 19 Dec. 1863. 4. Contemnors apologizing, and Pit not insisting on Committal, Contempt condoned, on Payment of Costs. Upon motion &c. by counsel for the Pit, that &c. \_Mecite the notice'] ; and upon hearing counsel for the said B. and A., and upon reading &c. ; And this Court being of opinion that the said B. and A. have committed a contempt of this Court by &c., and they now by their counsel apologizing and expressing their regret for such, contempt, and the Pit by his counsel not insisting on their 808 EXECUTION AND CONTEMPT. [PABT T. actual committal, This Court doth order that the said B. and A. do respectively pay to the Pit J. his costs of the said motion, to be taxed &c., and doth not think fit to make any other order upon the said motion. — Jackson v. Brighton Aquarium Co., V.-C. M., 8 Feb. 1872, In cases of contempt by breach of an injunction, an order for actual committal is not generally pressed for or directed, the more usual order being for Deft to pay the costs of the application, though not committed. And such order being an adjudication against him upon the question of contempt, is not an order as to costs only, so as to prevent an appeal by the Deft: see Witt v. Corcoran, 2 Ch. D. 69; secits, however, as to an appeal by the applicant: Ashworth v. Outram (2), 5 Ch. D. 943. For an order to commit an M. P. for writing a threatening letter to the Master to influence his judgment, see Lechmere Charlton's Case, L. C. 25 Nov. 1836; S. C. 2 Sand. Ord. 828, 2 My. & C. 316; and for order to commit a person for writing a letter to the L. C, enclosing money; and for his subsequent discharge on submission, asking pai-don and payment of costs, the money being applied for the relief of poor prisoners in the Fleet prison, see Re Martin, 2 Euss. & M. 674, u. For order nisi to strike solicitor off the roll for writing an insulting letter to the Master, see Re Keane, sup. p. 331. For order to commit Pit for writing a threatening letter to Deft to deter him from defending the suit, see Smith v. Ldkeman, V.-C. S., 2 Jur. N. S. 1202; and for his discharge on paying full costs, and an apology: S. C, V.-C. S., 20 Nov. 1856. For an order for the committal of a person (native of the U. S. of America) for throwing a missile at the Judge in open Court, see Re Cos- grave, V.-C. M., 16 March, 1877, A. 450; and for the subsequent order for his discharge on his being placed on board a ship bound for New York: S. C. 22 Aug. 1877. NOTES. SPECIAL CONTEMPTS. In cases of special contempt it has been held that the order for com- mittal should contain an adjudication of the contempt, and a declaration of the guilt of the party: see Exp. Van Sandau, 1 Ph. 445, 605; but such adjudication is not essential: S. C. For contempt of subpoena, and assault on the party serving it, if established by two witnesses, the order to commit was absolute ; if by one witness only, nisi: Elliot v. Ealmarack, 1 Mer. 802; Van v. Price, 1 Dick. 91 ; and the course is the same where the contempt is for violence or abusive or scandalous words against the Court or the process thereof, see Cons. Ord. 42, rr. 1, 2. To publish, with or without comments, the statement of claim, pleadings, or evidence in any pending action or matter, or any exparte or defama- tory statement tending to prejudice the minds of the public against persons concerned as parties, or to prevent a fair trial, before the action, &c., is finall; heard, is a contempt of Court which will be restrained by injuno- CH. XXIX. S. VI.] SPECIAL CONTEMPTS OP COURT. 809 tion, and maybe punished by imprisonment (or fine in a Com. Law Div.) : Tichbome v. Mosiyn, 7 Eq. 55, n. ; Daw v. Eley, lb. 49 ; Re Cheltenham §• Swansea War/on Co., 8 Eq. 580; Bowden v. Russell, W. N. (77) 55; Gen. Exch. Bk. V. Homer, W. N. (68) 259; Roach v. Garvan, 2 Dick. 704, S. C. 2 Atk. 469. Seems, pending a winding-up petition, the issue, and distribution amongst the shareholders, of a circular stating the charges against the directors, on which the petition was based: Re London Flour Co., 16 W. R. 474. So also it is a contempt to address public meetings, and allege that a Deft against whom a true bill has been found is innocent and the victim of a conspiracy: Onslow §• Whalley's Case, L. R. 9 Q. B. 219; or to ad- vertise the intended delivery of a sermon " with special reference to the trial in which the towji is so deeply interested: " Mackettv. Heme Bay Commrs., 24 W. R. 845. Sending letters threatening exposure, using intimidating language, or publication of articles in a newspaper calculated to deter parties from prosecuting their action , or to prevent witnesses from coming forward to give their evidence, is also a contempt of Court: Smith v. Lakeman, 2 Jur. N. S. 1202; Exp. Chetwynd, 10 Jur. N. S. 1188; Shaw v. S., 2 Sw. & Tr. 517 ; Be Tyrone Election Petn., I. R. 7 C. L. 242. After verdict, leave having been reserved to move for a nonsuit or new trial on technical grounds, an action is not still pending so as to make the publication of any comments thereon a contempt: Metzler v. Gounod, 30 L. T. N. S. 264. Defiant disobedience of a Judge in the legitimate exercise of his juris- diction may be punished by immediate committal: Watt v. Ligertwood, L. R. 2 H. L. Sc. 361 ; as also violent conduct and abusive language to a person engaged in serving the process of the Court: Price v. Hutchinson, 9 Eq. 534. Addressing a contemptuous letter to a Judge reflecting upon, or tending to interfere with, the administration of justice in his Court, is a contempt, which in the case of a solicitor, as an oflScer of the Court, renders him liable to be struck off the roll, or to suspension from practice : see Re Keane, sup. p. 331 ; though not punishable by this extraordinary penalty if the letter is written by the practitioner, not as an officer of the Court, but in his capacity as a suitor: Re Wallace, L. R. 1 P. C. 283. An action for libel against the author of a pamphlet which was pub- lished pending a motion for new trial of an action for false imprisonment, and severely censured the proceedings and course of trial in such action, is not a bar to a motion by the Pit to commit for contempt of Court in publishing the pamphlet: Corkery v. Hickson, I. R. 10 C. L. 174. Though a party be in contempt, he may move to discharge an adverse order: Futvoye v. Kennard, 2 Giff. 110, 533; or may take any steps necessary for his defence: Fry v. Ernest, 12 W. R. 97. PRIVILEGE FROU ARREST. Although a peer or M. P. is not liable in ordinary cases to be attached or proceeded against by any process involving personal arrest : see D. New- 810 EXECUTION AND CONTEMPT. [PABT V. eastie v. Morris, L. E. 4 H. L. 661; this privi^e of FarUament is no proieetion against arrest for a contempt of a gross or criminal nature: Onslow §■ Whalley's Case, L. R. 9 Q. B. 219; WeUesley \. D. Beau/orf} Lechmere Charlton's Case, sup. p. 808. Officers and attendants upon the Court, suitors and witnesses, have jtfivilege eundo, redeundb, et morando for their necessary atttendanoe, but not otherwise ; and the arrest of any of them at such times of necessary attendance is a contempt of Court: Cons.- Ord. 42, r. 1. This privilege from arrest extends to 'witnesses and jurymen : see Gibhs V. PMlipsonf 1 Buss. & My. 19; to parties to a suit or action: Andrews f. Waltorir, 1 Mac. & G. 380; Plomer v. Macdonouffh, 1 D. & 8. 232; to prosecutors, and also to accused persons admitted to bail and attending ©n their recognizances: GKlpm v. Cohen, L. R. 4 Ex. 131. A solicitor is privileged from arrest in, and on his way to or from^ Coaxi or Judge's Chambers on business of his client: Dodd v. Holbrook, 11 Jur. K". S. 969, 12 Jur. N. S. 19; Re JemU,m Beav. 959; Eyre v. Barrow, 6 W. R. 767; and see Gordery, Solicitors, 112-115; and a barrister is entitled to the same privilege: Anon,, 1 Y. & C. Ex. 331. It is plain that where attachment is mere process, privilege exists; where it is puniti'Ve or disciplinary, the privilege does not exist, Disobe^ dience by a solicitor to an order of Court made against him as an office of the Court' is a eontempli of a criminal mature, and an attachment granted to enforce compliance with the order of Court is process of a {wmitive and! disciplinary csbataeter; andl therefore no privilege from arrest exists or can be claimed against the execution of the attachment: In re Freston, II Q. B. D. 545, at p. 554; there is an exposition by the Master of the Rolls of the law as to the jurisdiction and control exercised by the Courts over solicitors: In re Dudley, 12 Q. B. D. 44. Privilege from> arrest for contempt of Court, where it otherwise exists, can be claimed in respect of attendance as an advocate at a Police Court as well as at any other Court, although the proceedings at the Police Court coiysist merely of a preliminaTy imq'oiiry on a charge of febir^: La re Freslon, 11 Q. B. D. 545- A bankrupt is privileged from arrest undra- an attachment for debt issued pending the proceedings in bankrupt^: Cobham v. Daltom, 10' Ch. 6^; and see Re Deere, 10 Cb- 650; Ai re Freston, 11 Q. B. D. 567, 558. But a person who has been attached and eommitted to prison under the Debtors Act, s. 4 (3) or (4ty, does not by subsequent adjudication of bank- rtiptey acquire privilege froiQx arrest or become entitled to his discharge from' prison: E. Lewes v. Bamett, 6 Cb. D. 252. 5. Committal for Trial for Perjury. Upon the trial of this action on the day of , and this day before the Court, and upon reading an affidavit of the Pit, filed &c., and the Pit and W. A. having been duly sworn, and upon bedxing the evidemce of the Pit in hia own behalf, and the evidence of the said W. A. on behalf of the Deft», taken upon their respective CH. 2XIX. S. VI.] SPECIAL CONTEMPTS OP CODET. 811 oral examinations, this Court being of opinion that the Pit has been guilty of wilful and coi'rupt perjury in Ms evidence given as afore- said before this Court, and that there is a reasonable cause for the ^osectrtion of the Pit for perjury, doth order that the Pit (riOme) be prosecuted for such perjury and be committed until the next sessioil of oyer and terminer or jail delivery for the county of M. ; And this Court doth require the Deft {name) to enter into a re- cognizantje, conditioned to prosecute, or give evidtence against, the said Pit. — S. v. W., V.-C. B., 19 Feb. 1877. 6. Recogwizance ly Person directed to prose&Ute. You [insert the name or nam.es, and if more than one add, and each of you] shall acknowledge yourself [yourselves and each of ^6u] to oWe to our Sovereign' Lady the^ Queen the sum of one hundred pounds [each] of good and lawful money of G. B., to be made and levied of your goods and chattels, lands and tenements, to the use of our said Lady the Queen, her heirs and successors ; the condition of the recognizance being that if you shall appear at the next session of the Central Criminal Court to be holden in the' City of London, and there prefer, or cause to be preferred, a biE of indictment for the offence of perjury against one (name), and there also duly prosecute such indictment, then this recognizance to be void, or else to stand in full force and virtue. Question. — Are you contented to be so bound ? Answer. — I am. — S. y.W., sup. This is to be read by the Registrar; and the obligee is not required to sign any document. 7. Record of the Becognizance to prosecute. Be it remembered that on the day of , X. &c. of- (name <&c.) personally came before me {name and title ofJudgi), and acknowledged himself [themselves and each of them] to owe to our Sovereign Lady the Queen th6 sum of one hundred pounds [each] of good and lawful money of G. B., to be made and levied of his \or their] goods and chattels, lands and tenements, to the use of our said Lady the Queen, her heirs and successors, if he \pr they] the said (nawie) shall fail in the condition indorsed. — Taken and acknowledged the day and year first above mentioned a* Lincoln's Inn, in the county of M. Before me By the Court (Signed) , (Signed and sealed), , Vice-ChanceUor. Begistrar. 812 EXECUTION AND CONTEMPT. [PABT V. The condition of the within written recognizance is such that whereas one (name) was on the day of , by virtue of an Act passed in the 14 & 15 V., entitled " An Act for further improv- ing the administration of criminal justice directed bj* &c. (name and title ofJudffe), to be prosecuted for perjury' at the next session of the Central Criminal Court, if therefore he the said (name) shall appear at the next session of the Central Criminal Court, and there prefer or cause to be preferred a bill of indictment for the offence aforesaid against the said (name), and there also duly prosecute such indictment, then the said recognizance to be void, or else to stand in full force and virtue. S. v. FT., sup. pp. 810, 811. (Signed) , Registrar. 8. Certificate signed hy the Judge after the Prosecutor has been bound to enter into a Recognizance. I (name and title of Judge) do hereby certify that it appears to me that the (Pit) (name) has been guilty of wilful and corrupt per- jury in his evidence given orally (and by aflSdavit) before this Court on the trial of this action, and that there is reasonable cause for the prosecution of the said (Pit) for such perjury, and that I have directed the said (Pit) to be prosecuted for such perjury, and have committed him untU the next session of oyer and terminer, or jail delivery for the county of M. ; and I have required the (Deft) (nam,e) to enter into a recognizance conditioned to prosecute or give evidence against the said accordingly. — S. v. W., V.-C. B., 19 Feb. 1877. (Signed) , Vice-ChanceUor. This certificate is given to the prosecutor under 14 & 15 V. c. 100, so as to entitle him to costs. 9. Appointment of Usher to take Person into Custody in Absence of Tipstaff. I [name and title of Judge"] do appoint (nami) one of the ushers of my Court to execute the orders made by me in the action of &c., on this day directing that (name) do stand committed to prison. Dated &c. (Signed) , Vice-ChanceUor. CH. XXIX. a. vn.J dischaege op contempt. 813 NOTES. COMMITTAL AND PROSECUTION FOE PERJURY. By 14 & 15 "V. c. 100, s. 19, the Judges or a Judge of the Superior Courts of Law and Equity, and other judicial persons are empowered, in case it shall appear to him or them that any person has been guilty of wilful and corrupt perjury, in any evidence given, or in any affidavit, depo- sition, or examination, answer, or other proceeding, made or taken before him or them, to direct such person to be prosecuted for such perjury, in case there shall appear to him or them a reasonable cause for such prose- cution ; and to commit such person so directed to be prosecuted until the next session of oyer and terminer or jail delivery for the county or other district within which anch perjury was committed, unless such person shall enter into a recognizance with one or more sufficient surety or sureties, conditioned for the appearance of such person at such next session of oyer and terminer or jail delivery, and that he will then surrender and take his trial, and not depart the Court without leave; and to require any per- son he or they may think fit to enter into a recognizance conditioned to prosecute and give evidence against such person so directed to be prose- cuted, and to give to the party so bound to prosecute a certificate of the same being directed, which certificate shall be given without fee or charge, and shall be deemed sufficient proof of such prosecution having been directed as aforesaid ; and on production thereof the costs of the prosecu- tion are to be allowed by the Court before whom the person is tried, unless that Court otherwise specially directs. These provisions were acted upon by V.-C. Bacon, in S. v. W., 19 Feb. 1877, see Forms 5-8, sup. pp. 810-812. Section VII. — Discharge op Contempt. 1. Order to discharge Prisoner in Custody under Attachment upon Compliance with the Order. Upon motion, &c. by counsel for (the Deft) B., who alleged that the said B. is a prisoner in (Holloway) prison, in the custody of the sheriff of M., under an attachment issued against him pursuant to the order, dated &c., for his contempt in not \_State the defauW], and that the said (Deft) B. hath since [state the compliance] , and upon hearing counsel for the Pit, and upon reading [if so, an aflfl- davit of &c., filed &c., of service of notice of this motion upon the Pit. — enter any other evidence] , This Court doth order that the said (Deft) B. be discharged out of the custody of the said sheriff as to his said contempt ; And it is ordered that the said (Deft) B. do pay to the Pit A. his costs of this application, to be taxed &c. 814 EXECUTION AND CONTEMPT. [PjSJtT T. 2. Discharge of Prisoner in Gnstodyfor not attorning to Receiver — Plaintiff consenting. Upok motion &c. by counsel for J^., who alleged that the said A. is a prisoner in (Holloway) prison, as by the return of the governor ■of the said prison appears, for his contempt of this Court in not attorning to and becoming the tenant of S., the receiver appointed in this action in respect of &c., occupied by him, situate at &c., being premises comprised in the Pit's securities, as by the order, dated &c., directed ; that the said A. has since attorned to and be- come the tenant of the Pit, and that the said A. is desirous of clear- ing his said contempt, and the Pit by his counsel consenting, It is ordered that the said A. be discharged out of custody as to his said contempt. — Smith v. JSeene, V.-C. B-, 4 May, 1S75. 3. Contempt condoned and Prisoner discharged on Payment of Sum on Account of Costs. Upon motion &c. by counsel for the Deft H., who alleged that the Deft H. has been by virtue of the order, dated &c., a prisoner (in Hollowaj-) prison since the day of for his contempt in the said order mentioned, and that he hath apologized for such contempt, as by his affidavit filed this day appears ; and upon hear- ing counsel for the Pits, and upon reading the said order and affi- davit. This Court doth order that the Deft H. do pay to Messrs. , the Pit's solicitors, the sum of £ on account of their costs of the said order, dated &c., and of this application ; And it is ordered that upon such payment being made the Deft H. be dis- charged out of custody (as to his said contempt) ; And it is or- dered that the costs of and relating to the said order and consequent thereon, and of this application, be taxed &c. ; the Pits by their counsel undertaking to refund to the Deft H. the excess, if any, in case such costs when taxed shall amount to less than. the sum of $, , so to be paid on account thereof; And it is ordered that the Deft H. do pay to the Pits the amount of their taxed costs, if any, beyond the said sum of £ . — See V.-C- M., Price v. Sutchinson, 12 Jan. 1870, B. 7 ; S. C, Form 2, sup. p, 807. The discharge should be limited to the particular contempt in question, because l^ere may be other causes of detention. CH. XXIX. S. Vn.] DISCHAHGE OP CONTEMPT, 816 •4. Discharge of Prisonsr in GvMody beyond a Year — Debtors Act, 1869 (32 ^ 33 V. e. 62), s. 4. Upon motion, &c. by counsel for K, who alleged that the said N. is now, and has been since the day of , detained by the Sheriff of E., a prisoner in E. county jail, for not paying into Court the sum of j£ pursuant to the order dated &c., and that one year from the date of the arrest of the said N. has expired (and upon hearing counsel for the Sheriff of E.), This Court (being of opinion that an order is necessary for the purpose) doth order that the said N. be discharged out of the custody of the said Sheriff, pursuant to the provisions contained in sect. 4 of the Debtors Act, 1869. — JRe Thompson, NaLty v. AyUU, V.-C. H., 30 L. T. N. S. 783, 22 W. R, 857. h. Discharge of Prisoner under the Debtors Act, 1878 (41 ^ 42 V. c. 54). Upon motion &c., by counsel for the Deft B., and upon hearing counsel for the Pit, and upon reading the order dated &c. , whereby it was ordered £State direction for payment] the order dated &c., whereby it was ordered [^State the leave to sv,e out writ of attach- ment and the nature of the contempt'] ; an affidavit of &c., filed &c., and it appearing (by the certificate of the Governor of Hollo- way prison) that the said (Deft) B. is a prisoner in HoUoway prison under a writ of attachment for his said contempt ; and this Court having, pursuant to the Debtors Act, 1878, inquired into the case (and also ascertained that the said (Deft) B. is wholly unable to pay the said sum of £ ) , doth order that the said Deft B. be discharged out of the custody of the Governor of HoUoway prison as to his said contempt. — See MichMl v. Mailings, V.-C. H., 6 Nov. 1878. 6. The Like Order. "Whereas by an order dated the 2d day of August, 1878, made upon the application of C, it was ordered that the said C. should be at liberty to issue a writ of attachment against the above-named S. for his contempt in not paying to the said C. the sum of £30 for costs, as in the said order mentioned, and-an attachment was ac- cordingly issued against the said S. directed to the Sheriff of Surrey, and the said Sheriff hath returned that ttie said S. is a prisoner in Wandsworth Prison under his custody ; And the said S. being this day brought to the baj of this Court, by virtue of a writ of habeas 816 EXECUTION AND CONTEMPT. [PART V. corpus issued pursuant to an order made upon his application, dated the 11th day of March, 1879, and now moving in person that he might be discharged out of custody under the said writ of attach- ment ; And upon hearing counsel for the said C, and upon reading the said order, an affidavit filed &c., and the return of the said Sheriff of Surrey, This Court having inquired into the case, doth order that the said S. be discharged out of the custody of the said Sheriff of Surrey as to his contempt in not complying with the said order dated the 2d day of August, 1878, and it is ordered that the said S. do pay to the said C. his costs of this appUcation, such costs to be taxed by the Taxing Master. — He Scard, M. E., 14 March, 1879. 7. Discharge of Order for Attachment, and Attachment for Irregularity. Whereas by an order dated &c. [_Recite order to he discharged^ ; Now upon motion &c., of counsel for the (Deft) A., who alleged that a writ of attachment was issued against the said (Deft) A., pursuant to the said order directed to the Sheriff of &c., and it ap- pears by the return of the said Sheriff to the said writ, that the said A. is a prisoner in his custody for not &c. [^state default for which the process issued'\, and that the said A. is advised that the said order and writ of attachment are irregular ; And upon hearing counsel for the (Pit), and upon reading the said order and return, an affidavit of &c. filed &c. [and if so, an affidavit of service of notice of this motion to the (Pit)] , This Court doth order that the said order dated &c. be discharged, and that the writ of attachment issued in pursuance thereof be set aside, and that the said A. be discharged out of custody as to his said contempt. For such order see Re Holt, L. J. James for V.-C. M., 27 W. K. 485. NOTES. tolSCHARGE FKOM CUSTODY. A person who has been imprisoned for special contempt will be de- tained in prison until he has cleared his contempt by performing the act required and paying the costs, or by making an adequate submission, upon which the Court may think fit to release him upon such terms as to costs or otherwise as shall seem proper. In the usual form of the writ of attachment (see Ord. 1875, App. F. No. 9) no period is specified during which the person In contempt is to be detained, and the order of the Court for his discharge must be obtained, see Edmonson v. Keyton, 2 Y. & C. Ex. 3 ; Gray v. Campbell, 2 Kuss. & CH. XXLX. S. VII.J DISCHAEGE OP CONTEMPT. 817 My. 223; even in cases under the Debtors Act, 1869, s. 4 (3) and (4), after the period of one year's imprisonment thereby limited has expired: Re Thompson, Nalty y. Aylett, 30 L. T. N. S. 783; and until the order for discharge has been obtained, the jailer, whose duty is to obey the warrant, is not liable in damages for detaining a prisoner who is in cus- tody under the ordinary writ of attachment: Greaves v. Keene, 4 Ex. D. 73; secus, if the time of detention is expressed in the warrant of commit- tal: Moore v. Rose, L. R. 4 Q. B. 486. Unless compliance with the order or performance of the act required shall have been certified by some officer of the Court, whose certificate is received as evidence thereof (e. g. the certificate of the Chancery Pay- master), the application for discharge must, unless the party prosecuting the order, who should be served with notice, consents, be supported by affidavit. In the case of comm^tal for contempt in marrying a ward of Court, the contemner will not be discharged until the certificate of solemnization of the marriage has been produced, and a settlement has been prepared and approved; but when these requisites have been complied with, he will not be kept in prison until the costs have been taxed: Coxy. Bennett, 31 L. T. N. S. 83. So also in Felkin v. Herbert, 12 W. R. 333, the contemnor, after purg- ing his contempt by ten days' imprisonment and a humble apology to the Court, was discharged on payment of the fees and paying a sum to be named for costs, subject to taxation, without awaiting taxation. A Deft who has cleared his contempt by performing the act required cannot, since the Debtors Act, 1869, be detained in prison for non-pay- ment of the costs of his contempt: Jackson v. Mawhy, 1 Ch. D. 87. But where the committal has been for breach of an order of the Court, and payment of costs has been imposed as the condition of his discharge, mere inability to pay those costs does not purge the contempt, nor entitle him to be discharged: Re M., 46 L. J. Ch. 24; S. C. nom. S. v. L., W. N. (76) 220. Inability to pay was no ground for discharging a defaulting trustee or solicitor who had been committed under the Debtors Act, 1869, s. 4 (3) or (4) : Ransom v. Boyd, W. N. (77) 236 ; or for declining to commit in cases within these exceptions : see Evans v. Bear, 10 Ch. 76. DISCHARGE , ON THE GROUND OF IRREGULARITY IN PROCESS. Irregularity, in the order on which the attachment is grounded, or in the notice of motion to commit, and semble, for leave to issue attachment, or in the affidavits in support, or in the issuing of the writ of attachment, are grounds for discharging an attachment, and for releasing from custody the person imprisoned. An attachment has been discharged in the following instances: — Where the copy of the order on which the attachment had issued was wrongfully entitled: Re Holt, 40 L. T. N. S. 207, 27 W. R. 485; Where the copy of the Taxing Master's certificate, which had been served with an order to pay certain sums found due thereby, contained a 52 818 EXECUTION AND CONTEMPT. {PAET T. clerical error: Re Reynolds, 10 W. E. 709; and see EexY. Cabierl, 4 Tyr. 77; Reff. v. Burgess, 3 Nev. & P. 366; Where the title of the affidavit of service of the order on ■which the attachment issued varied, though slightly, with the title of the order itself: McKemie v. M., 5 De G. & Sm. 338; Where execution was issued prematurely: Earlletl v. Stinton, L. B. 1 C. B. 483; but in this case ^aa Court imposed terms upon the con- temnor. Although the indorsement directed by Cons. Ord. 23, r. 10, has not been inserted, yet if the order is served a second time properly indorsed, the attachment thereunder will hold good, even though the time has elapsed: Re Gregg, 9 Eq. 137; and see Re Belton, 25 Beav. 368. As to bringing actions at law for damages for wrongful attachment or improper use of the process of the Court, see Gaucher v. Clayton, 14 L. T. N. S. 494; Whitehead v. Lynes, 34 Beav. 161. Applications to discharge or set aside a proems of contempt, on the ground that it was inegulariy issued, are made by motion on notice, and supported by affidavit, see Dan. Ch. Fr. 434; and the application must be made before there has been any waiver by the contemnor of the irregu- larity by compliance with the order («. g. in the case of sequestration.), by permitting the sequestrators to deal with his property, by his direction and with his approbation: see Const v. Barr, 2 Buss. 161, 168; Dan. Ch. Pr. 435. Although a person actually in custody on an attachment irregularly issued win not by any waiver on his part of the irregularity forfeit his right to be discharged: Haynes v. Ball, 4 Beav. 101 ; such waiver, if he is not in cu6to(^, is available in answer to his application to set aside pro- ceedings foTw.ded on the attachment: Meedham v. N.,1 Fh. 640. INDEX. INDEX. ACCOUNT, General Account — Original Decree or Judgment, paqb decree, judgment, or order for account 431 decree for inquiries and accounts in suit by building con- tractor against his employer arid the architect .... 431 inquiry as to amount due to railway contractor for works and materials 432 account of what remains due to railway contractor, with directions as to the allowance or disallowance of particu- lar item . . ' 432 order on summons that books be primi facie evidence . , 434 like order — on, motion 434 leave to receive secondary evidence 434 leave to adopt proceedings in former suit 434 right to account generally 435 when a bill for an account will lie in equity 436 wilful default ' 438 allowances 438 set-off 438 appropriation of payments 440 statutes of limitations 441 Accounts against Agents, account against confidential solicitor of intestate .... 442 account against solicitor — moneys received and paid — dealings and transactions — costs 442 account against confidential agents and solicitors ~ inter- est allowed on both sides 442 account in suit by principal against steward 443 agent to account for all profits, &c., of transactions except- ing his commission 443 account against an agent 444 account against managing agent of Pit's business . . . 444 accounts between principal and stockholders 444 account of remittances from India to agent here .... 444 right to decree 445 822 INDEX. ACCOUNT — continued. extent of an agent's liability to account — directors and promoters of companies ........... 447 Settled and Stated Accounts, usual form of direction not to disturb settled accounts . . 449 usual form of direction for leave to surcharge and falsify . 449 accounts to be conclusive, with leave to show errors . . . 449 release to stand as to sums paid and account stated — leave to surcharge and falsify 449 account to suit by overseers of the poor against late rate collector — settled accounts not disturbed — leave to sur- charge and falsify 449 special directions as to stated and settled accounts, and as to particular items 450 accounts in. former suit to be adopted, with leave to sur- charge and falsify 451 stated accounts set aside — general account 451 form of order 451 what is a settled account 452 surcharging and falsifying, and opening settled accounts . 453 General Account — Fubthee Considebation, costs 455 interest 455 " ACTION," meaning of the word 3 AFFIDAVIT OF DOCUMENTS, form of summons for affidavit of documents 59 order for affidavit of documents 59 summons for inspection 59 order for inspection 59 form of affidavit as to documents 60 form of notice to produce documents . 60 ANCIENT LIGHTS. (See Injunction, p. 88.) ARBITRATION, usual reference to one arbitrator 203 same— to two arbitrators, or their umpire 208 etay of proceedings and directions as to reference paiBuant to agreement 209 enlarging time for Pit to name an arbitrator 210 appointing mmpife, on failure of arbitrators to do so after notice 210 agreement or submission made an order of court .... 210 bond of submission made an order of court 210 to enlarge time to make award 211 to appoint new arbitrator and umpire in place of deceased 211 order to set down award as a special case 211 INDEX. 823 ARBITRATION — continued. award made an order of court 211 law relating to 212 form of order 212 setting aside, reviewing, and remitting awards .... 212 grounds on which the court will issue an injunotion to re- strain an arbitration 214 ASSETS, COLLECTING, AND DEALING WITH. (See iNJUNOTioifa, p. 157.) ATTACHMENT, account of the origin of the writ of 791 (See Attachmknt or CaMMiTTAt, pp. 789-791.) ATTORNEY GENERAL, in the case >of a public body transgressing its statutory- powers, even where private iiijury has been neither proved nor alleged, the attorney general may obtain an injunction 150 principle on which the cases proceed 150 " CAUSE," meaning of the word 3 CHAMBERS, PROCEEDINGS IN, general adjournment to chambers 19 particular reference — accounts and inquiries 19 order on summons in chambers , . . . 19 order on summons adjourned into court 19 summons refused or dismissed in chambers 19 CHARITIES. (See Trustbes of Charities.) COMPANIES, CORPORATIONS, AND OTHER PUBLIC BODIES. (See Injunctions, p. 143.) CONSENT AND COMPROMISE, decree or order made by consent , . 773 directions inserted by consent in decree or order .... 773 stay of proceedings in the terms of a compromise . . . 773 law relating to 774 CONSOLIDATION, order to stay one of two creditors' suits, with leave to prove in the other, and as to costs 175 the like order 175 proceedings stayed in first suit after decree in the second — carriage of decree given to Pit in the first 176 on motion for stay and motion for decree — order for con- solidation of causes — additional inquiry 176 order upon motion to consolidate, with directions as to trial 176 law relating to 177 CONTEMPTS, SPECIAL, OF COURT. (See Execution and Coxtempt, p. 806.) 824 INDEX. COPYRIGHT, INFRINGEMENT OP. (See Injunctions, p. 126.) COSTS, Taxation and Payment of Costs between Parties, taxation and payment of costs by one party to another . . 22 the like — other forms 22 Pit to pay one Deft's costs, and recover them with his own from a co-Deft 23 costs of application to be costs in the cause of action . . 23 petition dismissed with costs 23 motion refused with costs 23 tax and pay costs without prejudice how ultimately to be borne 23 costs made a charge 24 party to bear his own costs 24 no costs given on either side 24 the like — as to part 24 taxation of Pit's and Deft's respective costs of parts of suit — set-of£ 24 taxation of costs except so far as occasioned by particular claim 24 taxation of costs, except so far as increased by particular claim 25 costs up to a particular time 25 costs to be paid by Pit and Deft respectively from and to a particular time 25 costs taxed and set off against sum due 25 taxation of executor's costs between parties and also solicitor and client — payment of party costs by Pit and balance out of funds in hand 26 taxing master to look into petition and affidavits, and if im- proper or of unnecessary length, to distinguish and set off costs 26 costs of affidavits to be disallowed 27 COURTS, STAYING PROCEEDINGS IN. (See Injunction, pp. 160-162.) DAMAGES, UNDERTAKING AS TO, on interlocutory injunctions, form of 61 history and meaning of this kind of undertaking .... 64 DECREE, final or interlocutory 1 distinctions between, as to priority 3 meaning of the word 2 decretal orders 2 recitals in 3 DECREES, JUDGMENTS, AND ORDERS, FRAME OF, Decree at the Hearing of the Cause 5 Trial without Jury, judgment at trial by judge without a jury 5 nn)BX. 825 DECREES, JUDGMENTS, ^TC— continued. if standing for judgment 6 entering eTidence as read 6 grounds of decree 7 declaration of right 7 adducing evidence — oral examination — aflBdavits ... 7 documentary evidence 8 form and contents of affidavits 9 reading Deft's answer to interrogatories at the trial ... 10 admissions, consents, submissions, and undertakings — ■waivers 10 Motion for Judgment, judgment or order upon motion for judgment 14 Further Consideration, order on further consideration (and motion, or adjourned summons, to vary certificate) 14 DECREES, JUDGMENTS, AND ORDERS, PASSING, EN- TERING, ADDING TO, AND ENROLLING, Passing and Entering, motion to vary minutes refused 782 drawing up decrees, judgments, and orders 782 varying minutes 782 leave to enter nunc pro tune 783 passing and entering decrees, judgment, and orders . . . 783 entry nunc pro tunc 784 effect of entering decrees and orders 784 Adding to Decree or Judgment, additional accounts and inquiries 785 order to add direction for sale of realty 785 order adding to an account and inquiry directed .... 786 Enrolment, order nisi to enroll — Cons. Ord. 23, r. 26 786 order absolute to enroll 786 order since jud. acts to enroll a prior decree — applicant to appeal forthwith 786 effect of enrolment 787 vacating enrolments 787 DISCONTINUANCE AND DISMISSAL, Discontinuance op Action, judgment after notice of discontinuance — Ord. 1875, XXm. 2a 776 ordertodiscontinue — Ord. 1875, XXIIL 1 776 counter-claim dismissed by consent 776 proceedings stayed until particulars of demand delivered — writ specially indorsed — Ord. 1875, XXI. 4 . . . . 777 proceedings stayed until satisfaction of judgment in an- other division 777 stay of proceedings until payment of costs by Pit . . . 777 stay of proceedings without costs on submission by Defts to Pit's demand , 778 ■ of proceedings on terms 778 826 INDEX. DISCONTINUANCE AND DISMISSAL — conft»«ci. Dismissal for Want ok Proskchttiok, order to dismiss for not deli\tering statement of claim — Ord. 1875, XXIX. 1 778 the like — in default of answer to interrogatories, or dis- covery, or inspeotioa — Ord. 1876, XXXI. 20 .... 779 the like — in default of giving notice of trial — 'Ord. 1875, XXXVI. 4a 779 Pit out of jarisdictiom — dismissal for want of prosecution in. default of security for costs 779 dismissal in default of payment by Fit of costs under for- mer order 780 Dismissal at the HEASiNe, dismissal of action 780 judgment for Deft 781 dismissal of action when Pit does not appesff — Ord. 1875, XXXVI. 19 781 judgment dismissing action in default of Fit's appearance set aside, and action restored on payment of costs of the day — Ord. 1875, XXIX. 14, XXXVI. 20 781 IHSCOVEEY AND PRODUCTION, production and inspection of documents 29 order to make affidavit of documents, and for inspection at solicitor's office 29 order for affidavit, and for deposit of documents in court . 80 for inspection, with leave to seal up 30 order for affidavit and for inspection at solicitor's office — against two or more parties 30 the like — and for deposit in court — against two or more parties 31 the like — and for inspection — against a public body . . 31 order for production and inspection of documents referred to in an affidavit or pleading 32 for inspection of documents held not privileged .... 32 order enlarging time, where affidavit filed is insufficient . 32 order for further affidavit as to particular documents — against one Deft 33 the like — against several Defts 33 inspection of letters from third party marked private, on undertaking not to use them for any collateral purpose . 33 claimant against testator's assets to deposit at judge's chambers suspected documents used by him as evidence — and for inspection of them by witnesses — and of other documents admitted 34 deposit of mortgage deed and policies in court .... 35 order for production of company's books on cross-examina- tion of their officer 35 orders for production in court and in chambers enforced by attachment 35 order on motion in the nature of exceptions to answer to interrogatories 36 INDEX. 827 DISCOVERT AND PRODUCTION — coniinuedT. discovery and production generally 36 actions for discovery only ........... 37 interrogatories and affidavit in answer 37 interrogatories filed by a Deft . 38 evasive and improper interrogatories and answers ... 38 affidavit and production of documents 39 production of documents ^public bodies 41 production of documents — possession 4? impeached documents 44 inspection 44 sealing up part 45 resistance to discovery and production ....... 46 grounds of lesisting discovery have been set up by de- murrer 46, 47 resisting discovery — by plea, 47 resisting discovery — by answer 48 resisting discovery — inquisitorial questions 49 resisting discovery — criminating questions 50 extent of the privilege 50 resisting discovery — irrelevancy 51 resisting discovery — discovery relating to own case adone . 52 resisting discovery — commimicatious with solicitor or counsel 53 extent of the privilege 53, 54 resisting discovery — cases and opinions of counsel ... 56 resisting discovery — ^ communications with agents, &c. . . 57 using discovery at the trial 58 D?XrVEKT OUT OF DOCUMENTS, to a party or purchaser 58 to a party's solicitor, to be produced in evidence .... 58 ELEGIT, " an absurd anachronism " 472 note EVIDENCE, entering in orders, forms of 10-14 waiver and undertaking 10 submission and waiver 1: wiUs, probates, letters of administration 1 an indenture 1 a deed poll 1 power or letter of attorney 1 pleadings 1 affidavit in answer 12 depositions 12 evidence rejected 12 affidavits in schedule where parts rejected , 12 evidence taken viv3 voce 12 the like — with schedule 12 mutual or voluntary admissions 13 828 INDEX. EVIDENCE — continued. exhibits proved by affidavit at the hearing, under order . 13 order to read documents in another cause, &c 13 certificates of baptism, marriage, or burial 13 shorter form of entering exhibits referred to in depositions, or affidavits 13 indorsement by registrar on documents produced in evidence 14 where produced to a witness in court 14 EXECUTION AND CONTEMPT, Substituted Service, substituted service of decree, judgment, or order .... 788 law relating to 788 substituted service of subpoena for costs 789 Attachment ok Committal, order for attachment for default other than for non-payment of money — Ord. 1875, XLII. 4, 5 — Ord. XLIV. 2 . . 789 the like — for not transferring stock into court .... 790 the like — for not obeying an order to make affidavit as to documents — Ord. 1875, XXXI. 20 790 writ of attachment — committal 791 Enforcing return op Writs, order for sheriff to return writ of attachment 791 order on petition of course for sheriff to return writ of fieri facias 791 order nisi for the sheriff's committal 792 order absolute for committal 792 Serjeant-at-arms — Habeas Corpus, order for serjeant-at-arms, on return of attachment non est inventus — .Gen. Ord. 7 Jan. 1870, r. 6 792 order to turn over prisoner brought up by serjeant-at-arms to HoUoway prison 793 order for habeas to bring up prisoner on his own application 798 order for habeas to bring up prisoner to make application touching his contempt 793 to turn over a prisoner brought up on habeas obtained by himself 793 Sequestration, I. issue op sequestration, order for sequestration on return of attachment — Gen. Ord. 7 Jan. 1879, r. 6 794 the like — on return of serjeant-at-arms non est inventus . 795 the like — against a prisoner 795 the like — for non-payment of costs, where subpoena served by order out of the jurisdiction 795 nature of sequestration 796 property liable to sequestration 796 personalty 796 choses in action 797 pensions 797 real estate and chattels real 797 INDEX. 829 EXECUTION AND CONTEMPT — continued. II. PROCEEDINGS UNDER SEQTJESTKATION, order for sequestrators to sell and pay in proceeds — taxa- tion and' payment of costs — power to remove effects salable and unsalable 797 the like — and to account and arrange claims for dilapida- tions, and tenant rights — application of proceeds . . . 798 order for tenants to attorn to sequestrators 799 powers and duties of sequestrators 800 III. EXAMINATION PRO INTERESSE 8UO, inquii-y as to claimant's interest 801 the like — on motion that the sequestrators withdraw — and for damages, and cross motion that they sell . . . 802 sequestrators to withdraw upon undertaking by claimant as to damages to keep an account, and to allow seques- trators to take inventory — inquiry 802 declaration that claimants have an interest against which sequestrators cannot hold — direction to withdraw —costs 803 law relating to 803-805 rV. DISCHARGE OF SEQUESTRATION, order to discharge attachment and dissolve sequestration . 805 committal of the Deft, and another person, for obstructing the receiver 806 sequestration discharged 805 Special Contempts op Court, committal of Deft and another, for violence and abusive lan- guage to a person effecting service — Cons. Ord. 42, r. 2 807 committal of a newspaper editor for publishing an article reflecting on witnesses 807 contemnors apologizing, and Pit not insisting on committal, contempt condoned, on payment of costs 807 committal for trial for perjury 810 recognizance by person directed to prosecute 811 record of the recognizance to prosecute 811 certificate signed by the judge after the prosecutor has been bound to enter into a recognizance 812 appointment of usher to take person into custody in absence oftipstaff 812 committal and prosecution for forgery 813 Discharge of Contempt, order to discharge prisoner in custody under attachment upon compliance with the order 813 discharge of prisoner in custody for not attorning to re- ceiver — plaintiff consenting 814 contempt condoned and prisoner discharged on payment of sum on account of costs 814 discharge of prisoner in custody beyond a year — debtor's act, 1869 (32 & 33 V. c. 62), s. 4 815 discbarge of prisoner under the debtor's act, 1878 (41 & 42 V. c. 54) . 815 830 INDEX. EXECUTION AND CONTEMPT — con^inuerf. the like order 815 discharge of order for attachment, and attachment for irfegularity 816 discharge from custody 816 discharge on the ground of irregularity in iproeeas . 817, 818 FUNDS, BKINGING INTO COURT, payment into court 22 voluntary payment into court 22 payment into court with interest 22 FURTHER CONSIDERATION, order on further consideration (and motion, or adjourned summons, to vary certificate) 14 principle of decree not to be varied 15 " GOODWILL," meaning of the word 614 INFANTS, Suits by or against Isfants, next friend of infant Pit in room of one deceased . . . 390 new next friend in room of one living, on giving security for costs 390 guatdian ad litem assigned on application of infant or non , compos 390 same — to infant respondent to petition . 391 6ame — to lunatic, on his application, where committee is interested 391 guardian assigned to infant or "non compos on Pit's appli- cation . 391 inquiry whether suit proper and for the infant's benefit . 391 inqliiry which of two suits is for the benefit of the itifant . 392 order for stay upon terms of the leSs beneficial of two suits instituted in an infant's name 392 ■proceedings in stranger's suit Stayed on payment of his costs — next friend in second suit discharged, and ap- ■pdintoent of new next friend directed 393 infant Pit coming of age and repudiating suit, made Deft . 393 to amend by striking but late infant Pit, yrho, on comitig of age, repudiates the suit . . 393 Inyf delating to . . 394-396 Showing Cause against Decree, decree nisi against infant 396 decree absolute against infant 396 decree for immediate foreclosure absolute against Infant and married woman, Pit paying costs, and court declar- ing it for their benefit ■. . . 397 impeaching and showing canse against decree 397 iiif aiit plaintftt ■»*... 397 ''^^''•' infant defendant ■. . . 398 INDEX. 831 INFANTS — continued. Adoption op Phoceedings — iNFAirr's Conteaots, inquiry as to adoptdng contracts 399 infant declared not bound by decree, but former accounts to be adopted if beneficial 399 inquiry waived 399 proceedings adopted 400 conditional agreement for a sale in a partition suit ap- proved on behalf of an infant Pit 400 infant's contract for necessaries, account and inquiry . . 400 compromise on behalf of infant 401 infant's contract — ratification 401-403 GUAKDIANSHIP, MAINTENANCE, AND EDUCATION, I. ORDERS FOR APPOINTMENT OP GUARDIAN WITH OR WITH- OUT MAINTENANCE, appointment of guardian of infant's person 404 quasi guardian of person 404 guardian of person and maintenance 404 guardian of person and estate — maintenance .... 404 guardian of estate, and to account annually — maintenance 405 guardian of person and estate -without security on under- taking to account when required — maintenance . . . 405 removal of guardian for misconduct 406 new guardian — old to account though security not given as ordered 406 guardian of estate discharged — new guardiaa — account of rents , . . . , 406 guardian appointed to consent to marriage 407 jurisdiction — infant ward 407 application and form of order 407 guardian, who may be appointed 408 foreign guardian 408 testamentary guardian 408 II. ORDERS RELATING TO MAINTENANCE AND EDUCATION, orders for increase of maintenance 409 advance for maintenance, out of income of contingent diares, secured by policy 410 maintenance charged on infant's real estate 411 infant having come of age, guardian of estate to pass his accounts and pay over balances ......... 411 infant placed as a pupil, or at school 412 infant to be articled or apprenticed 412 maintenance — father's ability .,...,... 413-415 JUKISDICTION OVER InPAMT'S PsOPBBTT, MANAGEMENT OP PROPERTY, guardian of esta^te, proceeds of timber to be paid into eourt — accounts 416 gaardian to retain eitrrenli expenses out of tioiber lOiOBiey, and to let the sporting aimaslly 416 allowance iot keejang up msam.oa — fniihermaintenaaee . 416 832 moBX. INFANTS — continued. order to let mansion-house furnished, with sporting rights 417 receiver to pay interest on charges and maintenance — sur- plus invested 417 expenditure of sums in furniture for residence, and in re- placing heirlooms 418 confirmation of contract by- trustees of an infant's estate for the purchase of real property 419 sale of infant's realty purchased out of personal estate postponed 419 guardian and his ward 419 sale of infant's property 420 dealings with infant's or lunatic's estate 420 Custody — Religious Instruction — Residence Abroad, I. ORDERS relating TO THE CUSTODT, RELIGIOUS INSTRUC- TION, AND RESIDENCE OF INFANTS, custody, residence, and leave to visit 421 inquiry, what provision — guardian — scheme — residence — maintenance — custody — father restrained from in- terfering 422 order under the infant's custody act, 1873, for delivery of infant to his mother 423 custody of infants committed to mother — guardians — provision — father excluded, except at stated times . . 423 order regulating residence during holidays 424 custody given to foreign guardian 424 temporary absence abroad 424 guardian having removed infant ward out of jurisdiction, to bring her within 425 infant restored to his friends abroad 425 custody 425-427 religious education 427 residence abroad 429 II. ORDERS TO ENFORCE PRODUCTION OF THE PERSON OF THE INFANT order to produce infant in court 429 order for habeas corpus 430 order on return of habeas to deliver custody 430 INJUNCTIONS, Interlocutory Injunctions and Interim Orders, injunction on notice, or exparte, on undertaking as to damages 61 exparte interim order 61 exparte injunction, on application in vacation, without counsel 61 extending interim order, on like undertakings .... 62 motion to stand over on mutual undertakings 62 motion treated as the trial, and action stayed on Deft's un- dertaking and paying costs 62 inquiry as to damages after judgment for Deft — payment — costs 62 INDEX. 833 INJUNCTIONS — continued. dismissal — sum certain to be paid for damages on inquiry 63 jurisdiction of the courts as to granting 63 form of order 63 undertaking as to damages 64 service of injunction 66 notice of motion 66 interlocutory applications and interim restraining orders . 67 injunctions mandatory 69 Breach of Contract, injunction against practising in a profession within speci- fied limits 71 injunction against exercising a trade, ■with account ... 71 breach of agreement giving Pit for valuable consideration the sole aild exclusive right of sale of certain articles in . Deft company's premises restrained 73 breach of publican's agreement with brewer restrained . . 73 breach of farming contract 73 injunction against removal of hay and straw 74 law relating to the above forms 74-77 Waste, injunction to stay felling ornamental timber and other waste 78 the like — against the tenant for life where the estate was limited to trustees without impeachment of waste, if with privity 78 inquiry as to felling timber — life tenant sans waste . . 79 life tenant impeachable of waste allowed such wind-felled timber as he might properly have cut — inquiry ... 80 injunction against felling timber already sold, on security for damages, with inquiry as to felling without im- pairing, &c 80 waste by tenant — interim order 81 the like — mandatory injunction at the hearing .... 81 interim order staying removal by mortgagor of fixtures from mortgaged property, continued tiU judgment in foreclosure action 81 law relating to the preceding forms 82-85 ancillary relief in respect of waste 85 Trespass, TRESPASS (ordinary), injunction against trespassing on Pit's land 86 mandatory injunction against laying pipes on Pit's land or under a highway 86 mandatory injunction against laying rails on PH's land or across bridge • 87 ANCIENT LIGHTS, order for interlocutory injunction from obstructing ancient lights 88 perpetual injunction as to light -^ angle of incidence . • 88 58 834 INDEX. INJUNCTIONS — continued. mandatory injunction against obstructing ancient lights — operation suspended 89 mandatory injunction as to. obstructing ancient lights — op- eration suspended. — arbitrator to decide whether order had been complied with 89 injunction refused — : inquiry as to damages 90 law relating to the above forms 90-93 MINERAL EIGHTS, injunction as to coal workings — account of coals gotten — support 93 injunction as to mines — support — inspection — account. 93 account of coal obtained by Defts from within Pit's barrier, inadvertently or under belief of title — damages — way leaves . . 94 inquiry as to value of coals wrongfully got, and damage by breaking through Pit's boundary 95 law relating to the above forms 96-99 support 96 inspection 98 account and compensation ' 98 EIGHT OF WAY, interim order — restraining use of private road .... 99 perpetual injunction against obstructing road, and per- mitting obstructions to remain — damages . . . . . 99 establishing right of way, and for removal of obstructions 100 railway company restrained from obstructing a right of way over a level crossing 101 Jaw relating to the above forms 101-103 WATER RIGHTS, injunction against diverting or diminishing flow of water . 103 mandatory injunction — flow of water — inquiry as to damages — operation of injunction suspended .... 103 declaration of water rights of canal proprietors, and injunc- tion to restrain interference therewith ...... 104 obstruction of navigable stream restrained 105 obstruction of wharfinger's right of access to the Thames resti'ained . .^ 105 law relating to the above forms 106 escape of water 106 Nuisance, I. PRIVATE nuisance, nuisance from burning bricks restrained . 107 nuisance — offensive occupation — inquiry as to damages . 107 appointment of special referee to inspect and report as to nuisance from noise and drainage 108 decree after report of special referee 108 nuisance from steamrhammer — noise and vibration re- strained 109 -fireworks 109 INDEX. 835 INJUNCTIONS — continued. noisy entertainment 109 dangerous occupation — testing fire-arms 110 grounds of interference in the case of private nuisance . 110 brick-burning Ill cement works Ill chemical works Ill manure works Ill bell-ringing Ill noise and vibration 112 noisy entertainments, collecting disorderly crowds . . . 112 keeping hoi'ses on ground floor of a London dwelling-house 112 use of garden as a skittle or bowling-alley 112 use of a riflg range so as to be a nuisance to adjoining houses 112 right to an injuj^ction may be lost by acquiescence . . . 112 n. POLLUTION OF WATER, injunction restraining pollution of river by town sewage . 112 similar decree 113 pollution of stream by manufacturing works 114 inquiry as to pollution from a given date 114 Trade-Makks, Labels, and Names, interim order restraining use of trade-mark registered under the trade-marks registration act, 1S75 117 using trade-marks as to tools or cutlery 117 selling and making secret preparations and using recipes and trade-marks 118 shipping goods with Pit's trade-marks US injunction against use of trade-mark ^- account of profits . 119 use of trading name restrained 120 law relating to the above forms 121-126 principle on which courts of equity interfere to protect the use of trade-marks 122, 123 recent cases in which an injunction has been granted . 124, 125 refused 125 Infringement of Copyright, decree for perpetual injunction against infringement of copyright . . , 126 interlocutory injunction against infringement of copyright without specifying pirated parts 127 injunction staying infringement and specifying pirated parts 127 perpetual injunction against printers and publishers of pirated directory — account of copies sold and unsold — delivery up of the latter — payment of net profits of the former 127 injunction against piracy of original notes in an English edition of an American work 129 dramatic copyright — interlocutory injunction continued diiring existence of copyright 130 836 INDEX. INJUNCTIONS — continued. copyright of designs 130 law relating to the preceding forms 130-135 principles on which the court proceed in deciding questions of alleged infringment 131, 132 allegations in the bill 132 registration a condition precedent 132 dramatic compositions 133 upon the subject of copyright consult the following cases: — abridgment 133 calendar 133 catalogue 133 dictionaiy 134 directory 134 dramatized novel 134 encyclopaedia 134 immoral publications and engravings 134 law reports 134 letters 134 magazine or periodical 134 map 134 musical composition 134 newspapers 135 topographical dictionary 135 travelling handbooks and itineraries 135 Letters and Documents, injunction against printing, and publication of private cor- respondence 135 injunction against publication of letters or disclosure of their contents 136 enjoining the return of documents 136 injunction against opening letters of another firm, or sup- plying the orders therein contained 136 Comments on Pending Pkocekdings, injunction restraining the delivery of a sermon advertised to be with special reference to pending proceedings . . 138 law relating to 139 Partners, injunction against Acting as partner 139 interim order in an action for dissolution of partnership re- straining Deft from drawing checks, &c., in the name of the firm until after the trial 139 injunction on dissolution of partnership 140 injunction on dissolution restraining carrying on business or soliciting custom in the name of the old firm . . . 140 injunction against the use of trade-name on dissolution of partnership, and against soliciting orders from customers of the firm 141 injunction against removing partnership (theatiical) prop- erty — receiver 141 law relating to the preceding forms 142, 14:3 njDEX. 837 INJUNCTIONS — continued. Companies, Corporations, and other Poblic Bodies, injunction against railway company proceeding on notice to treat 143 railway company enjoined from continuing in possession or entering on land 144 railway company declared bound to take the whole of two houses, gardens, and premises — injunction against tak- ing less 144 inquiry as to damage in respect of works by a railway com- pany injuriously affecting a land-owner 145 mandatory injunction against working a railway in breach of agreement with land-owner 145 railway company restrained from removing a wall, or mak- ing any openings therein, in breach of agreement with the land-owner 146 injunction against obstructing trains run by another com- pany under running powers 147 issue of shares to pay dividends restrained 147 payment of dividends out of capital restrained .... 1|:7 injunction to restrain striking out plaintiff's name from register of members, and treating his shares as for- feited 148 injunction to restrain improvement commissioners from applying rates in promoting a bill in parliament . . . 148 improvement commissioners restrained from applying cor- porate funds in building offices in a public park . . . 148 directors of public company restrained from holding the annual general meeting at an unusual date 149 declaration that an intended agreement for a transfer of the assets and business was ultra vires and invalid, and injunction to restrain the company and directors from carrying the agreement into effect 149 law relating to the preceding forms 149, 150 in addition to the forms above given, the following cases may be consulted upon the exercise of jurisdiction by injunction against companies (and their direc- tors) and public bodies : — application to parliament 151 compulsory powers 152 illegal and unauthorized contracts and arrangements by railway companies 153, 154 preference shares 155 traffic agreement 155 unpaid vendor 156 Negotiating Securities, injunction against negotiating promissory note .... 158 interim order staying negotiation of bills of exchange con- tinued — deposit in court 156 law relating to 157 838 INDEX. INJUNCTIONS — continued. Collecting and dealing with Assets, injunction to restrain receiving or collecting assets . . . 157 law relating to 157, 158 Sales, injunction against sale in redemption suit 15S staying sale by first mortgagee, on payment into court by second mortgagee — account 158 sale by trustees under depreciatory conditions restrained . 159 law relating to 159 Staying Proceedings in other Courts, staying present or future action 160 leave to proceed with action, but execution stayed . . . 160 on undertaking to deal with judgment as court shall direct 160 staying action on payment into court 161 law relating to 161 Staying Proceedings in Foreign Courts, order to stay proceedings in Holland 162 Dissolving, continuing, and granting or making Per- petual Injunctions, injunction dissolved or continued on motion 163 continuing interim order on terms 164 decree making injunction perpetual as to copyright . . . 164 decree for a perpetual injunction as to specific acts com- plained of, on submission of Defts, without prejudice to future rights 164 decree establishing right to oyster fishery and quieting in possession, with perpetual injunction 164 dissolving injunctions 165 perpetual injunctions 166 cases in which perpetual injunctions have been granted . 167 Breach op Injunction, committal for breach of injunction 168 order condoning contempt. Deft paying costs of motion . 168 sequestration against local hoard for breach of injunction . 168 sequestration against railway company for breach of under- taking , .169 law relating to the preceding forms 169-171 <' INTERIM," meaning of the term 67 " INTEKLOCUTORY," meaning of the term 67 INTERPLEADER, Interpleader at the Instance of Private Person, order nisi for claimant to appear 190 order absolute — issue directed 190 interpleader order in chambers in the first instance — issue directed without jury 191 order staying proceedings against the original Deft, and substituting the claimant 191 INDEX. 839 INTERPLEADER — continued. order barring claim against the claimant not appearing . 191 in case of adverse claims to ship, freight, and earnings — accounts and inquiries — costs 192 law relating to 193-196 interpleader generally, and where no action has been brought 193 right to interpleader order 194 costs 195 Interpleader at the Instance of the Sheriff, order for sheriff to sell goods seized, and pay proceeds into court ^ issue as to claims 196 sheriff to withdraw on claimant paying into court, or giving security for the amount, and payment of possession money — ij;i default, sheriff to sell — issue directed . . 197 if sheriff to remain in possession on default of payment or giving security 197 summary order by consent for sheriff to withdraw . . . 197 sheriff to proceed to sell, and to raise and pay claim ^nd expenses 198 order barring claim in favor of execution creditors . . . 198 interpleader decree in chancery suit by sheriff, where the assignee in bankruptcy and execution creditor disputed the right to the proceeds under writ of fieri facias . . . 198 law relating to 199 ISSUES, Directing Trial op Issues and Questions op Fact, order for trial of issues or questions of fact, or fact and law, before the court without a jury, and with or without assessors 200 order to amend an issue or question 200 order postponing trial 200 issue as to heirship 201 Various Issues, issues as to heir at law exparte patema and exparte maternS, and customary heir 201 issue as to eldest or only sou 201 issue as to daughter 201 as to validity of bond — fraud 202 as to sanity and validity of deed — fraud 202 as to sanity, validity of deed, and authority to buy stock . 202 issues as to right of way 203 issues as to damages 203 as to covenants and agreements 204 as to act of bankruptcy 205 as to a custom 205 as to intestate's marriage 205 Order for New Trial of Issues and Questions of Fact, form of order 205 the like — paying costs of former trial 206 order for new trial where the jury did not agree .... 206 840 INDEX. ISSUES — continued. Decrees and Orders after Trial of Issues or Ques- tions OP Fact, decree after trial of issues or questions of fact, or fact and law, without a jury, where judgment given at the trial . 206 decree on motion for judgment after trial, by a jury, of issues or questions of fact, directed by court .... 207 law relating to 207 " JUDGMENT," equivalent to " decree " 1, note "JURISDICTION," three circumstances any one of which wUl give jurisdiction to the tribunals of the country to take cognizance of a matter 620, 621 by the word " jurisdiction " is meant territorial jurisdic- tion 621 LETTERS AND DOCUMENTS. (See Injunctions, p. 135.) LIBEL, the publication of a libel injurious to trade or property may be restrained by interlocutory injunction 137 MARRIED WOMEN, Married Woman Plaintiff or Defendant, leave to a married woman to sue or defend without her husband or a next friend, on giving security for costs . 335 leave to a married woman to sue in forma pauperis, and without a next friend 335 for wife to defend separately — on her application . . . 836 discharge of insolvent next friend of a married woman . . 336 law relating to 337-341 married women suing in forma pauperis 341 Payment to Husband, Wife, or Trustees, transfer and payment to husband, where no settlement . 341 same — where an existing settlement does not affect the fund 342 same — on application and examination in chambers . . 342 order for examination by commissioners 342 transfer of married woman's fund into her own name, under married women's property act, 1870 (33 & 34 V. c. 93), s. 3 343 appointment of a trustee to receive policy moneys under married women's property act, 1870, s. 10 344 sale of stock and payment to wife for her separate use . . 344 payment to divorced women 344 order for transfer to a married woman, who had obtained a protection order, of reversionary interest which had fallen into possession since her desertion 345 INDEX. 841 MARRIED WOMEN — continued. examination as to post-nuptial settlement 345 order for examination as to post-nuptial settlement . . . 346 payment to husband, wife electing to take money arising from land as money 346 order for examination by commissioners as to reinvestment of fund in land, or electing to take it as money . . . 347 transfer and payment of married woman's fund — separate examination 347-351 husband or wife of unsound mind 351 Order for Settlement — Wife's Equity, where feme covert on being examined desires a settlement 352 further order in chambers 352 where the sifiplication is made originally in chambers . . 352 inquiry, whether any settlement, and if proper, and if not, direction for settlement 353 two-thirds settled by order without deed as against the husband's incumbrances 353 settlement by order of whole fund, the husband claiming no part 355 wife's equity to a settlement 356-860 amoimt 360, 361 Dower and Jointure, I. dower, inquiries as to lands subject to dower — dower assigned . 362 inquiry and commission as to assign dower — account of rents — occupation rent charged 362 inquiries as to lands of which testator died seised, and as to dower 363 order for payment of the ascertained value of dower out of a fund in court representing the purchase-money of an infant's property, subject to his mother's right of dower 363 law i-elating to 364-367 II. jointure, joiutm'e confirmed — deeds to be produced 367 jointure to be made good — deeds — accounts 368 law relating to 368 Separate Estate — Liability, decree establishing and directing payment of a claim by a creditor against a married woman's separate estate . . 369 decree charging a married woman's interest after her hus- band's bankruptcy with her debts incurred before mar- riage 369 decree charging against her separate estate a debt incurred by a man'ied woman 370 amount of debt and costs recovered in an action against a married woman, declared a charge upon her separate property, without prejudice to any rights of her trustee not made a party 371 842 INDEX. MARRIED WOMEN — continued. declaration of charge on married woman's separate estate, ■with account and inquiry 371 law relating to separate estate 372 general principles of the common law as to the disabilities of married women, and the doctrine of equity in later times 372-374 expressions which have been held to create separate use . 374 restraint on anticipation 375 rights and liabilities in respect of separate estate . . 376-380 contracts between husband and wife 380 authority of wife to pledge her husband's credit .... 380 married woman executrix 381 wife's testamentary power 382 Separation and Divorce, decree for specific performance of articles of separation • 383 specific performance of agreement for separation . . . 384 separation deeds 385-387 Judicial Separation — Dissolution op Marriage, dealing with wife's reversionary interest after judicial separation 387 e:Sect of judicial separation or dissolution of matriage upon the marriage settlement 387-389 MINERAL RIGHTS. (See Injunctions, p. 93.) MORTGAGE, Foreclosure — Sale — Redemption, foreclosure at hearing — mortgagor in possession . . . 458 judgment against mortgagor for payment of amount certi- fied to be due 459 payment in six months, debt and interest admitted . . . 459 sale, in default of payment 460 sale at request of incumbrancers — bankrupt mortgagor dismissed — inquiry as to charges and their priorities . 460 sale at request of mortgagor or of puisne incumbrancer, on payment into court of a security fund, 15 & 16 V. c. 86, s. 48 461 the like, with directions as to reserved buildings .... 462 common redemption decree 462 redemption after tender — payment into court — costs — costs, charges, and expenses 463 right to foreclosure 464 defective assurances 467 sale 467 right of redemption 469 clandestine mortgages 471 parties to foreclosure and redemption action 471 persons entitled to redeem 473 assignees 473 INDEX. 843 MOKTGAGE — continued. creditors 473 dowvess 473 guardian or committee 473 heir 473 joint tenant 473 jointress 473 judgment creditors 473 legal personal representative 473 legatees of mortgagor 474 sequestrators 474 subsequent mortgagees 474 sureties 474 tenant ]j)y the curtesy 474 tenant for life 474 tenant in tail 474 trustree in bankruptcy 474 volunteers 474 rights of mortgagee and mortgagor as affected by the stat- utes of limitation — principal 474 interest 476 arrears of interest — statutes of limitation 477 title-deeds 480 costs 480 costs of reconveyance 483 costs, charges, and expenses properly incm'red .... 483 costs of disclaiming defendant 484 Accounts, Inquiries, Declarations, and Directions in Foreclosure and Redemption Actions, ■wilful default — mortgagee in possession 487 account of rents with rests 487 the like 488 account of rents — repairs and lasting improvements . . 488 account of insurance premiums 489 inquiries as to proceeds of sale of part of mortgaged prem- ises, and as to moneys received for insm-ance of mort- gaged premises — interest on amounts received . . . 489 sums laid out in completing buildings 490 inquiry in redemption suit as to possession by deceased mortgagee — occupation rent — overpayment — Deft to deliver possession on redemption 490 inquiry as to deterioration of mortgaged property in fore- closure suit 491 the like — in redemption suit 491 land tax redeemed by mortgagee 491 inquiry as to incumbrances on mortgaged estate, and their priorities 491 inquiries as to incumbrances and parties interested . . . 492 declaration of right of Pits in a foreclosure action to prop- erty fraudulently omitted from their security, with in- quiries 492 844 INDEX. MORTGAGE — continued. mortgagee selling at an unreasonably low price — charged with loss 492 inquiry who entitled to surplus proceeds of estate sold to satisfy Pit's mortgage debt 493 inquiry as to costs, charges, and expenses 493 costs — allowance of special items — costs of attempted sale 494 direction that Pit pay a Deft's costs, and have them over . 494 rights and liabilities of mortgagor in possession .... 494 rights and liabilities of mortgagee in possession — wilful default 497 accounts 499 annual rests 500 just allowances 501 Successive Redemptions and Pokeclostjkes, first mortgagee v. second, and mortgagor 505 abstract of the like decree — first mortgagee against second, third, fourth, fifth mortgagees, and mortgagor . 506 second, mortgagee v. first, third, and mortgagor — part of mortgaged property leasehold — legal estate outstanding 508 law relating to 509 Enlarging Time and Opening Foreclosure,' common order, enlarging time on motion before default . 510 where mortgagee failed to attend 510 where mortgagee has received rents 511 opening foreclosure 511 enlarging time 512 opening the foreclosure 513 FOKECLOSUKE ABSOLUTE — DISMISSAL OF REDEMPTION AC- TION, final order for foreclosure 514 foreclosure absolute at hearing against Defts disclaiming by counsel, or submitting to stand foreclosed .... 515 same, against second mortgagee declining to redeem . . 515 same — on payment of disclaiming Defts' costs .... 515 dismissal of redemption action 516 foreclosure absolute 516 Foreclosure and Redemption op Chattels, i. mortgages op stock, etc., foi'eolosure of mortgaged stock and cash, in court . . . 517 stock mortgage — where stock to be replaced, or fore- closure 518 foreclosure after charging order absolute against the Defts' interest in stock held by trustees 518 redemption of portion of stock included in a certificate for a larger amount 519 mortgage of pension 520 foreclosure of chattels brought upon or added to the estate after the mortgage 520 INDEX. 845 MORTGAGE — continued. redemption of goods pledged — overpayment — assignee . 521 foreclosure and redemption of chattels — stock mortgage . 522 mortgages or pledges by factors 524 policies 525 bills of sale — registration 527 chattels acquired after the mortgage 529 fixtures 530 H. MORTGAGES OF SHIPS, lien on ship declared — mortgage to be executed — account — sale 532 declaration of charge on ship — accounts and inquiries — redemption or sale 532 sale of shijj, and account of freight and charges .... 534 account of ship's cargo — charges and bill of exchange . . 534 account of -what due to mortgagees of ship sold by them . 535 accounts against mortgagee of ship . 535 law relating to 536-541 bottomry and respondentia 541 Mortgages in which Particular Persons are inter- ested, mortgage to solicitor for costs to stand as security only for what actually due — taxation of costs — account of rents 542 the like 543 wife's estate — inquiiy if mortgage was for her benefit . . 544 foreclosure of equitable mortgage against infant heir-at- law — infant declared a trustee — person appointed to convey 544 foreclosure of separate mortgages by principal and surety . 544 solicitors 545 surety 546 married women 547 infant entitled to equity of redemption 549 Mortgages by Companies, inquiries as to debentures affecting a company in course of winding up ■ 549 declaration of charge on real and personal property of a company in favor of debenture-holders — account — sale 550 the like — accounts, inquiries, and directions — Ord. 1875, XV. r. 1 550 declaration of priority of debenture-holders over the gen- eral and unsecured creditors of a company, with direc- tions for payment 551 mortgage of railway — account of what is due — appoint- ment of receivers 551 Lloyd's bonds — declaration of rights of holder .... 552 railway rent-charges, and mortgage debentures — priorities declared 553 inquiries as to rent-charges granted by a railway company 846 INDEX. MORTGAGE — continued. ^ — application by receiver of balances after payment of the working expenses in satisfaction of the arrears of rent-charges 553 law relating to 554-556 Equitable Mortgages, specific performance of agreement to execute a mortgage . 557 equitable mortgage — appointment of receiver — accounts — conveyance in default of payment 557 equitable mortgage — absolute conveyance free from all equity of redemption 558 equitable mortgage — foreclosure 558 equitable mortgage of shares in trading partnership — fore- closure — redemption or purchase by the other partners . 559 declaration of equitable charge — sale 560 mortgage of stock certificates by deposit — order to trans- fer — sale in default of payment 561 sale at suit of equitable mortgagee by deposit of railway debentures 561 equitable mortgagfe of policy of assurance by deposit . . 562 how an equitable mortgage may be created 562-565 remedies of equitable mortgagee 565 Liens in the Nature of an Equitable Mortgage, lien on reversion — conveyance 566 establishing lien on reversion — mortgage or sale .... 567 declaration of lien for expenditures on land by third parties, and of charge upon such lien in favor of Pits, with rights of redemption and foreclosure, as in the case of a deriva- tive mortgage 567 lien on policies established by letter addressed to the creditor, and by him delivered to the insurance office . . 568 law. relating to 569,570 Change in the Interest of the Mobtgagok or Mort- gagee, equity of redemption in settlement 570 first mortgagee v. two annuitants and mortgagor's assign . 571 redemption by tenant for life of property subject to charges, and held by mortgagee in possession — Pit entitled to a charge on property for the excess of rents received by mortgagee beyond his interest, and for the amount paid for redemption and costs of suit 571 remainderman v. mortgagee and tenant by curtesy, he being charged with interest 573 mortgage devised in trust — one IJeft donable — apportion- ment of mortgage money — trustee and cestuis que trust, co-Pits » 574 carrying out equities between parties entitled to redeem . 575 redemption by person interested in part only 575 Pit first mortgagee of the entirety and second of a moiety . 576 change of interest pending, suit and after decree — carry- INDEX. 847 MORTGAGE — continued. ing on proceedings under former decree between the new parties 577 Derivative Mortgages, derivative mortgagee v. mortgagee and mortgagor . . . 578 first mortgagee v. second, and second's derivative, and mortgagor and subsequent incumbrancers 579 mortgagor u. transfei-ee and his derivative — costs of getting possession 580 mortgagor v. mortgagee and his trustee in liquidation, and derivative mortgagees 581 law relating to 581 Marshalling Securities, marshalling securities in favor of second mortgagee as against a surety who, on payment of first mortgagee's debt, has had transferred to him a security not included in that of second mortgagee 582 policy moneys marshalled in favor of a surety from whom the debt secured by one of the policies has been recovered 583 securities marshalled in favor of persons claiming under a voluntary settlement prior to the mortgage 584 law relating to 585 Prioritt — Notice, declaration of priority according to date 586 priority acquired by prior notice declared 587 priority acquired by registration 587 law relating.to 587-691 priority as affected by registration — lis pendens ..... 591 AuNtriTIES, redemption of annuity 592 _ the like 593 aiTears of freehold rent-charges raised by sale 593 law relating to 594 MOTION, SPECIAL, order on motion 17 the like — and on cross motion 18 form of order on motion refused 18 order on abandoned motion . 18 NE EXEAT REGNO, order for writ to issue 172 writ discharged on Deft giving security 172 ne exeat discharged — inquiry as to damages and payment according to undertaking 172 law relating to . . * 173, 174 NUISANCE, / (See ^JUNCTIONS, p. 107.) PATENTS, interlocutory order to restrain infringement of patent . . 180 the like order ,...■. 180 848 INDEX. PATENTS — continued. interlocutory iniunction for infringement refused on terms 180 infringement — injunction 181 order for trial of issues — particulars of breaches and ob- jections — inspection 182 another form of issues — where part disclaimed .... 183 another form 181 order for a trial of a representative case for the purpose of determining the question of validity 184 order for delivery of further particulars of breaches . . . 184 order for delivery of further particulars of objections . . 185 order for inspection of Deft's process by experts .... 185 decree for injunction restraining infringement of patent for machinery after trial of issues by a jury — discovery — account of profits — certificate for full costs 186 like decree for injunction as to patented articles (pulleys) after refusal of motion for new trial, and for delivery up of the articles made by Deft, to be specified by affidavit 187 like decree after trial without jury as to patented skates, with account of sales and profits — discovery, delivery up, or destruction 187 inquiry as to articles in Deft's possession, and direction for their destruction 188 order for discovery by D: ^ts of the names and addresses of their customers, after dicree for perpetual injunction, in aid of inquiry as to damages 188 inquiry as to damages in patent case 189 the like inquiry 189 PARTNERS. (See Injunctions, p. 139.) PARTNERSHIP, Enforcing or Setting aside Agreement, enforcing or setting aside agreement 610 declaration of title to share as partner in partnership assets and profits 611 setting aside partnership induced by misrepresentation — consequent relief 611 partnership held still existing — sale as a going concern . 612 inquiry as to existence of partnership 618 law relating to 613-615 Account — Sale — Dissolution, account of dealings and transactions 615 house, &c., where business was carried on declared partner- ship assets — sale and accounts — receiver 616 dis-soliition — accounts . . . ' 617 dissolution from time of notice — renewed lease, partnership assets — accounts — inquiry as to most beneficial mode of sale, and if as a going concern, or as wound up — sale . 618 sale as going concern 620 return of premium 620 INDEX. 849 PAKTNERSHIP — continued. law relating to 620 jurisdictiou 620 account 621 dissolution 622 sale 624 receiver 624 return of premium 624 interest 625 arbitration 625 costs 626 Account after Decease or Bankruptcy of a Partner, in suit by executors of deceased against surviving partner . 626 in suit by ^ecutors of deceased against lunatic partner where no committee had been appointed — inquiries as to capital and employment of manager and allowance for management 626 leaseholds — indemnity against covenants — allowance for management 627 account in suit by the trustee in bankruptcy of a partner against the executors of a deceased partner 628 effect of death 629 effect of bankruptcy 630 bankruptcy of surviving partner 631 Account in Creditor's Suit, administration of estate of deceased partner 681 liability of partners to creditors 632 ' liability of quasi-partners to creditors — 28 & 29 Vict. c. 86 634 liability of the partnership estate to separate creditors . . 635 Account in Suit by Beneficiaries, accounts and inquiries as to testator's partnership business 636 inquiries as to testator's assets in foreign firm, and course to be taken 637 infants entitled to profits — inquiry whether for their bene- fit to take profits or interest 638 survivor not entitled to allowance for management except travelling expenses and disbursements — lien on share of survivor 638 partnership realty to be deemed personalty 639 tenant for life and remainderman — profits corpus or in- come — apportionment 639 parties to actions by beneficiaries 640 title of beneficiaries 640 interest or profits 640 corpus or income 641 real or personal estate 641 Accounts as to Ships, account of shares in ships and earnings, and proceeds if sold 642 account of freight and profits 642 — ' law relating to 643 64 850 INDEX. PAYMENT OF MONEY BY ONE PARTY TO ANOTHER, form of 21 PETITION, SPECIAL, order on petition 16 order on petition as to part adjourned ....... 16 order on petition adjourned to chambers 16 order on petition dismissed 16 law relating to 16, 17 PRIVILEGED COMMUNICATIONS, principle and extent of the privilege between client and counsel 53 PROHIBITION OF PROCEEDINGS IN INFERIOR COURTS, order for writ of prohibition directed to an ecclesiastical court 178 proceedings in prohibition 178 history of the jurisdiction and an exposition of the law and practice relating to 179 RECEIVER, Appointment of Receiver, order for receiver of real and personal estate 215 when.reoeiver is to act before security given 215 plaintiff .appointed interim receiver before appearance . . 216 .interim receiver and manager by consent 216 receiver pending proceedings in probate court 216 -either of the parties to propose himself, and'to act without salary 217 the like, as to Deft only, without salary or security . . . 217 further order in chambers, where receiver not named in the first 217 appointment of receiver in chambers without previous ref- ' erences 218 on parties failing to give security within limited time — alternative order 218 appointment of receiver of estate in mortgage .... 219 order appointing a receiver and manager, with an injunc- tion 219 receiver appointed on application of a judgment creditor . 220 •receiver and manager of partnership business — sale . . 220 interim payments 221 ■partnership debts « 221 receiver and managers of several partnership business . . 222 receiver appointed to wind up SQlioitor's partnership busi- ness 222 solicitor's partnership business — special directions as to papers 222 manager and receiver of partnership colliery, until sale . 223 the like until a given time, -with special provision as to debts 224 -receiver and manager of testator's business until sale 226 INDEX. 8S1 RECEIVER — continued. receiver of testator's business and personal estate . . . 226 receiver and manager of testator's mines and realty . . 227 receiver of heirlooms 227 receiver of settlement funds 227 receiver and manager on behalf of debenture holders . . 228 receiver and manager of railway 228 receiver of railway 229 receiver of tolls on application of debenture holders . . , 229 receiver of freight of ship (with injunction) 230 law relating to 230 appointment of receiver 230 allowances 282 effect of appointment 232 in what ins^nces, and over what property, a receiver may be appointed 234 tenancy in common 284 mortgagor and mortgagee 234 trust estate 235 infant's estate 236 partnership 236 companies 237 Powers of Management — Special Directions, tenant to attorn and pay rent 238 if payment of arrears ordered 238 separate accounts of rents and personalty — investment . 289 receiver to bring action for rent, and tenants to attorn . . 239 receiver to keep down interest 239 receiver to distribute balances 239 receiver to expend a limited sum in repairs 240 receiver to repair farm buildings in accordance with speci- fication 240 receiver to cut and sell timber 240 inquiry as to cutting timber, with consequent directions . 241 receiver to pay off advance for renewing leasehold . . . 241 receiver to pay widow's annuity 241 receiver to pay annuities 242 law relating to 242 possession or attornment 242 expenditure in respect of estate 242 applying for directions 243 law relating to 245 accounting 245 sureties 246 Account and Payment, receiver to bring in account 243 account and payment by one surety, with leave to sue the other and the receiver 244 putting recognizance in suit 244 new surety, instead of one deceased or bankrupt . . . . 244 subsequent order 245 852 INDEX. KECEIVER — continued. Discharge of Receiver, discharge and payment 247 payment by receiver's executors 247 receiver discharged as to part, and Pit, on giving security, let into possession 247 law relating to 248, 249 KECTIFYING AND COMPLETING PROCEEDINGS, Change and Representation of Parties, order to continue proceedings against a new party — Ord. 1875 767 common allegations in orders to continue or carry on pro- ceedings 767, 768 continuing proceedings against representative of an ac- counting party— Ord. 1875, 1. 4. . . .< 768 continuing proceedings against infant born after decree or judgment— Ord. 1875, 1.4 769 continuing proceedings against administrator of executrix and administrator de bonis non 769 discharging order to continue proceedings against disclaim- ing devisee — Ord. 1875, 1. 7 770 Dispensing with and Appointing Representatives, order to carry on proceedings without a representative — 15 & 16 V. c. 86, s. 44 770 order appointing Pit to represent deceased Pits — 15 & 16 V. c. 86, s. 44 770 order appointing representative, by consent of nominated executors — 15 & 16 V.c. 86, s. 44 771 order at the hearing appointing a Deft to represent de- ceased Defts 771 appointment of persons to represent various classes in order to decide questions of construction — Ord. 1875, XVI. 9 a 771 SALES. (See Injunctions, p. 158.) SECURITIES, NEGOTIATING. (See Injunctions, p. 156.) SEQUESTRATION. (See Execution and Contempt, p. 794.) SOLICITORS, Taxation, allowances 314 instances of allowancesor disallowance of particular items 314-316 Solicitor's Authority — Retainer — Nomination by Court, suit brought without authority, dismissed with costs, to be paid by solicitor, or repaid by him to Pit, with Pit's own costs 316 INDEX. 853 SOLICITORS — continued. co-Pit's name struck out where suit commenced without his authority 317 order on summons nominating solicitors to represent a class 317 Solicitor's Lien, order to change solicitor (and agent) 819 changing solicitor, lien on papers — delivery 819 solicitor to hand papers to new solicitor, subject to lien, and undertaking to return them 819 Pit's solicitor to hand papers to solicitor of creditors con- ducting cause 320 delivery of papers by solicitor without prejudice to taxation and lien, the client giving security, and undertaking to produce them 820 law relating to . 321 solicitor's lien on papers 321-823 Court's Control over Solicitors, sale by court set aside — solicitor to pay all the costs . . 327 liability of solicitor to make reparation for improper pro- ceedings on behalf of lunatic 327 solicitor ordered at his own expense to stamp deeds with stamps for which he had charged his client 828 law relating to 328-330 Setting aside Securities, &c., obtained from Client, deed to be security only for what due on taking accounts — dealings and transactions — costs 824 law relating to 325 securities and dealings between solicitor and client . . . 325 Striking off the Roll, or Suspending, order to strike solicitor off the roll at his own request . . 831 the like, as to solicitor admitted since 1st November, 1875 331 order nisi to strike solicitor off the roll for misconduct . . 331 like order 831 order nisi, on paying full costs, not made absolute . . . 332 order made absolute 332 order to suspend solicitor 832 law relating to 333, 834 , SPECIFIC PERFORMANCE, Right to Relief, declaration of right ' 644 the like declaration 644 the like — agreement established . 644 the like — agent declared duly authorized 644 decree for specific performance with inquiry as to damages 645 law relating to 646 nature of jurisdiction 646 what agreements may be enforced 646-649 grounds of defence to the suit 649 establishment of the agreement 649-854 the equity of part performance does not extend to con- tracts concerning any other subject-matter than land 652 854 INDEX. SPECIFIC PERFORMANCE — conimuerf. nature of the doctrine as to part performance . 652, 653 nature of the agreement 654 capacity of the parties 656 conduct of the parties in respect of the agreement . . 658 partial specific performance — damages ». . 660 Agreements for the Sale of Land, i. reference of title, conditional declaration of right in suit by vendor, and in- quiry 661 inquiry as to title 661 inquiry where title accepted subject to requisitions . . . 661 inquiry as to delivery of abstract, and objections and an- swers thereto 662 alleged mistake — inquiry whether purchaser was entitled to the land sold 663 order to review certificate against title shown 663 law relating to, 663 form of declairation 663 inquiry as to title 664 title to be made 665 when title may be made 667 when title first shown 667 time for completion 668 n. TITLE ACCEPTED, ESTABLISHED, OK DISAPPROVED, vendor's suit — specific performance at the hearing . . . 668 the like — title accepted at the hearing 669 the like — title forced on the purchaser at the hearing . . 669 purchaser's suit — specific performance at the hearing . . 669 the like without computation of interest — Defts appointed to convey 670 occupation rent — vendor's suit 670 directions as to deeds under special stipulation — pur- chaser's suit 670 deterioration and dilapidation — rents — wilful default — special directions, inquiries, and reservation of costs — vendor's suit • . 671 leaseholds — covenants in assignment — vendor's suit . . 671 leaseholds — indemnity against rents — vendor's suit . . 672 order after reference and certificate of good title — ven- dor's suit 672 like order after certificate against title — lien for deposit — dismissal — vendor's suit 678 law relating to 673 interest 673 rents — outgoings — occupation — wilful default . . . . 675 deterioration 675 payments — conveyance 676 delivery of deeds 678 dismissal — deposit 678 costs 679 INDEX. 856 SPECIFIC PERFORMANCE — continued. III. COMPENSATION OF ABATEMENT, inquiry as to title, and if title not shown to part, inquiry if such part be material 680 specific performance, with abatement for deficient interest 681 specific performance, with abatement for deficient parcels 681 specific performance, with abatement for defect of title, and misrepresentation as to working expenses of colliery 681 law relating to 682-684 Agreements for Leases or Underleases, in suit by intended lessee 684 the like, where assessed damages are awarded in addition 684 in suit by intended under-lessee where license needed . . 685 the like, where damages are awai'ded in the alternative . 685 in suit by intended lessor — houses fit for habitation . . 685 agreement for mutual leases 685 inquiry if lease tendered for execution is a proper lease . 686 abatement fi-om rent for deficiency of parcels 686 a^eement for lease, with option of further term .... 686 construction of the agreement 688 construction of particular words and phrases 688 damages 689 costs 689 ante-dating leases 689 Agreement for Special Purposes, I. agreement for the transfer of shares, vendor's suit — transfer to be registered, purchase-money having been paid 690 law relating to 690 n. execution of works, agreement by railway companies to construct siding . . 691 buildings to be erected — divergence between agreement and plans 691 III. GRANT OF ANNUITY, agreement to grant annuity enforced with modifications . 692 rV. PERSONAL services, agreement to employ a manager of works at a percentage on trade profits 692 law relating to 693 v. COMPROMISE OF RIGHTS, agreements for compromise of rights under a will . . . 693 law relating to 694 Pkoceedings in Default op Compliance, the different remedies open to a plaintiff 694 appointment of time and place for execution— agreement for sale of land — purchaser's suit _■ ■ 695 law relating to • ^^^ agreement for sale of land — purchaser's suit — defaulting party declared trustee — person appointed to convey . • 696 order rescinding agreement "°° 856 INDEX. SPECIFIC PERFORMANCE — continued. law relating to 697 agreement for sale — vendor's lien declared at the hearing 697 subsequent order enforcing lien by sale — leave to bid . . 698 the like — order after attempted sales — injunction and de- livery of possession 698 law relating to 699, 700 SPECIFIC RELIEF, I. Missing Instruments, terms of missing settlement established from the draft . 701 inquiries as to lost settlements — parties interested, and property comprised 701 lost settlement — further order 702 lost title-deeds — inquiry in suit for redemption .... 702 the like — further order — indemnity 703 will found after administration decree under prior will — inquiry as to parties — notice to proceed, in default dis- tribution 703 equitable jurisdiction in cases of loss or destruction of deeds and documents is threefold 704 evidence 705 indemnity and compensation 706 costs 706 Mistake, purchase set aside for mistake in title 707 conveyance declared partially inoperative — purchaser elect- ing not to rescind 708 conveyance rectified — copy of order to be indorsed . . . 708 deed re-established after actual cancellation 709 law relating to 709 what mistake may be a ground of relief 709 when relief will be refused 711 evidence 711 reconveyance — rents and profits — improvements . . . 711 costs . 712 Fraud, i. suppressed instruments, conveyance established though destroyed by settlor, and the estate devised by his will 713 law relating to 713 II. FORGED INSTRUMENTS, forged transfers of shares set aside 714 forged marriage certificate — declaration of illegitimacy — payments to supposed lawful children to be repaid by the recipients, or by the trustees 714 law relating to 715-717 III. VOID INSTRUMENTS, deed executed under false representation as to its contents set aside 717 law relating to 718 INDEX. 857 SPECIFIC RELIEF— continued. IV. MISREPRESENTATION EXPRESS OR IMPLIED, money advanced on the faith of a misrepresentation refunded 718 law relating to 719 misrepresentation generally 719-721 purchase completed through fraud and misrepresentation i set aside 721 law relating to 722 suggestio falsi — vendor and purchaser 722 concealment by purchaser in flduciaiy relation — purchase set aside — accounts — payment — reconveyance deeds . 723 suppressio veri — fiduciary purchasers 725 misrepresentation in prospectus — allotment of shares set aside and deposit to be refunded — suit by shareholder ■ against the company and directors 726 law relating to 727,728 misrepresentation and concealment by promoters — pur- ■ chase set aside at the suit of the company 728 law relating to 730, 731 Inequitable and Illegal Transactions, I. illicit dealings by agents, secret profits to be refunded by directors 731 contract set aside for surreptitious dealings between one principal, and the agent for the other . . . . 732 law relating to 733 II. UNDUE INFLUENCE, gifts to alleged spiritual medium set aside — account and special directions 734 law relating to undue influence 736 release of debts given by client to solicitor set aside . . . 738 law relating to 738 III. UNCONSCIONABLE BARGAINS, dealings with expectant heir set aside 739 the like — premiums on policy of assurance to be repaid and policy assigned 739 law relating to unconscionable bargains 740-742 rV. FRAUD ON MARITAL RIGHTS, settlement set aside as in fraud of marital rights, and trusts of new settlement declared 742 V. FRAUD ON CREDITORS, conveyance in fraud of creditors wholly set aside .... 743 the like in administration suit — inquiry as to acquies- cence 743 settlement in fraud of creditors partially set aside . . . 744 sale in consideration of an annuity set aside, with consequent relief 744 form of decree or judgment 745 frauds under 13 Eliz. o. 5 745-747 acts of fraudulent preference 745 858 INDEX. SPECIFIC RELIEF — continued. VI. VOLUNTARY CONVEYANCES, volantaiy settlements set aside in favor of purchaser . . 748 voluntary conveyance set aside in favor of mortgagee — proceeds of sale distinguished 747 VII. IMMORAL. TKANSACTIONS, inquiry as to consideration of bond alleged to have been given for past cohabitation 751 law relating to 749-751 rules of equity on this subject 751, 752 Rights and Liabilitii^ under the Custom of the Stock Exchange, indemnity against calls in winding-up in suit by vendor against ultimate purchaser — transfer executed . . . 753 thelike ^ .... 754 the like — against several purchasers of shares which were no longer distinguishable, the shares having been reg- istered in the name of an infant, and replaced in the name of the transferor ' . . 756 the like — in suit against stock-jobber, where the name of an infant transferee had been passed — inquiry as to amount of indemnity 757 declaration of the stock-jobber's liability, where registra- tion was guaranteed. 757 law relating to 758-760 Miscellaneous Rights and Remedies, * covenant rescinded as against a surety on non-execution by co-surety 761 law relating to 761 liability of fire insurance companies in respect of wharf- ingers and merchants' policies determined 761 law relating to 762 appropriation of consignments to meet bills of exchange — declaration of charge and inquiry 763 law relating to 764 declaration of right of stoppage in transitu 765 law relating to 765, 766 " SUIT," includes " action " 3 SURETYSHIP, contribution between co-sureties and principal, in suit by surety 595 account of payment by surety, and inquiry as to contribu- tion by co-sureties 595 further order, after certificate finding that G. , the principal debtor, and F., were insolvent, and that J. was not able to pay more than his own costs, and a part only of his full share — interest — costs of resisting contribution . 596 surety declared entitled to proportion of dividend from prin- cipal debtor's estate 597 INDEX. 869 SURETYSHIP — continued. the like declaration 597 contribution between co-directors in respect of the liability on shares which, pursuant to a resolution ultra vires, had been purchased, and transferred into the name of the Pit, one of the directors, in trust for the company .... 598 mutual marine insurance — contribution 599 leave to give notice of claim to be indemnified by a third party — Ord. 1875, XVI. r. 18 599 persons served with notice of claim to contribution having entered an appearance, leave given to defend — Ord. 1875, XVI. rr. 20,21 ' 600 surety discharged by loss of collateral security, through creditor's negligence 600 discharge of surety on the usual bond by a railway company under the parliamentary deposits act, by subsequent pass- ing of an act making deviations, abandoning part of the undertaking, and authorizing an increase of capital . . 601 law relating to 601 indemnity 601 contribution 603 discharge and release of surety 605 I. Discharge of the surety by concealment or mis- representation , 605 n. Discharge of the surety by variation of the con- tract 606 m. Discharge of the surety by acts of the creditor affecting or altering his position 607 TRUST, nature of 254 anciently known as a use 254 note quotation from " The Merchant of Venice " . . . 255 note TRUSTEES, PRIVATE, Breach of Trust generally, inquiry as to dealing with trust funds 251 inquiries as to deceased trustee's balance, and as to the trust estate, and dealings therewith, and with the income thereof, and as to the purchase of land 251 inquiries as to adopting accounts — title-deeds — legacy duty — account of trust funds 252 account and inquiry as to the funds under two settlements, in suit by trustees for his discharge 253 new trustees appointed — former trustees to replace stock and dividends 253 order for payment by trustees where intended to be regis- tered as a judgment 254 law relating to 254 breaches of trust generally 254 definition of a trust ............. 254 860 index:, TRUSTEES — continued. liability of trustees for each other's acts 257 liability for default of agents, bankers, or solicitors . . . 259 remedies for breach of trust 259 directors of companies 261 married women 261 parties 262 Breach of Trust bt Improper Investment or Non-con- version — Concurrence, Acquiescence, and Laches, BY Cestuis que Trustent, inquiries as to trust funds and loss by improper investment or non-investment 263 investment declared impi'oper 263 the like — payment by instalments, security to be sold on default — arrangement not to prejudice appeal . . . 264 inquiries as to loss by non-conversion and non-investment, and as to acquiescence 264 inquiry as to acquiescence in alleged breach of trust . '. 265 trustees declared liable in respect of non-conversion and purchase of shares 265 law relating to 266 breach of trust — improper investment 266 breach of trust — non-conversion 267 acquiescence and conomrence by c. q. trustee .... 268 statutes of limitations 269 married women 269 Breach of Trust — Wilful Default — Charging with Interest or Profits, inquiry as to wilful default — bankrupt trustee .... 270 further order for leave to prove for the balance .... 270 inquiry if executors might have recovered trust moneys . 270 trustees to bring into court trust funds misappropriated by insolvent co-trustee, with interest, and to prove against his estate 271 inquiry as to employment of balances 271 inquiry as to executor's balances 271 interest on balances left in banker's hands 271 interest on balances retained since last order 272 direction for annual rests and compound interest .... 272 employment of assets in trade — Deft charged with profits or interest . 278 law relating to 274 wilful default 274 charging with interest or profits 275 Costs, Charges, and Expenses, costs, charges, and expenses beyond costs of suit . . . .- 277 same — to be raised by the trustees 278 inquiry as to costs, charges, and expenses 278 law relating to 278 trustees to have no costs or to pay them 281 INDEX. 861 TRUSTEES OF CHARITIES, Administration op Charities generally, decree for scheme — new trustees — inquiries as to value, income, and letting property — rents 284 directions for scheme for regulating charity 284 same — endowment of churches — other charities . . . 284 attorney general to have notice . ; 285 inquiry in whom lands vested, and as to past and future management 285 inquiry as to property — account of rents and fines — in- quiry as to letting — scheme — new trustees .... 286 inquiry as to charities and their apportionment, under 8 & 9 V. c. 70, and 52 Geo. III. c. 10 286 order adopting scheme filed 287 the like .* 287 the like — scheme scheduled to order 287 scheme scheduled to certificate adopted, with consequent directions — costs 287 scheme and mode of letting superseded — new scheme adopted — new trustees — lands vested in official trustee — costs . 288 apportionment of costs 288 relator's extra costs allowed — inquiry 289 trustees' and relators' extra costs, with interest, to be raised by mortgage 289 jurisdiction of the court over charities 289 charitable trusts executed cy-prfes 290 power of the court over visitors and trustees 292 power of a majority of the trustees 293 usage , 293 scheme for charity 294 scheme for schools 295 Setting aside Leases — Account of Charity Property, mode of letting declared improper — inquiries as to prop- erty — what steps proper to set aside leases and recover past rents — condition of school — master's income . . 296 inquiries as to church property and leases — church-wardens to be served 297 order to take proceedings to set aside improper leases of charity estates 297 decree setting aside lease 297 the like — where a house which the minister had the right to occupy has been leased without his sanction .... 298 college declared trustee — increased income apportioned amongst the charities 298 setting aside leases of charity estates 299 improper election of objects of charity 300 breach of trust — removing trustees of charities .... 301 taking accounts against charity trustees 301 application of funds . . . ^ 302 when increased rents, &c. , belong to the charity .... 302 862 INDEX. TRUSTEES OF CHARITIES — conftn^ed. Gifts to Charities by Deed or Will, charitable legacies declared void pro tanto 303 the like — short form 304 bequest for building when land should be given — scheme to be settled for application cy-pres meanwhile .... 304 gifts by deed and will in charity deelared void 304 flevise and grant to charity void 304 gift to charity by deed declared void 305 inquu'ies as to charities and their treasurers 305 inquiries as to charities and lands in mortmain .... 305 law relating to 306 validity of gifts by deed or wiU 306 what is a charity 308 what gifts by will are valid 307 what gifts by will are void 308 bequests for the purpose of building, purchasing land, &c. 310 property which cannot be given to charities by will . . . 311 property which may be given to charities by will .... 312 marshalling 312 USE, Lord Coke's definition of 254 trust anciently known as a use 254 note quotation from " The Merchant of Venice " . . . 255 note USUAL DIRECTIONS, usual directions adjourning further consideration ... 21 the like — with liberty to apply in chambers as to particu- lar matter 21 if costs are partly dealt with by the decree ... . . 21 Payment op Money by one Party to another, form of 21 WASTE. (See Injunctions, p. 78.) ^ WATER, POLLUTION OP. (See Injunctions, p. 112.) WATER RIGHTS. (See Injunctions, p. 103.) WAY, RIGHT OF. (See Injunctions, p. 99.) tTniTenlt; Press, Cambridge : John Wilson and Son. V* (I ■ •J